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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 ERS, 
 
 T, E.G. 
 
 ; paper 
 t, with 
 laxities. 
 : those 
 j tartly 
 quired, 
 . } trice, 
 itoraers 
 
 JUDICATURE FORMS. 
 
 The Forms of Proceedings and Pleading requisite under the 
 Acts of 1873 and 1875, in accordance with the latest Rules of 
 Court, Printed upon the Special Judicature Paper, are now in 
 course of preparation, and will be ready in a few days ; and 
 settled for the use of Solicitors, by 
 
 W. T. CHARLEY, Esq., M.P., D.C.L. (Oxon)., 
 
 (>!' the luinr Tin '>-(((- J.fttr. 
 
 FORM CASES 
 
 FOR IKM,I>IN(. Till: Al'-oVK F<>KMS, 12 A: 20 DIVISIONS.
 
 JACOB PHILLIPS & SON, 
 CHIPPENHAM, WILTS, 
 
 THE NEW SYSTEM 
 
 PRACTICE AND PLEADING 
 
 TNDKR THE 
 
 SUPREME COURT 
 
 JUDICATURE ACTS, 1873 & 1875. 
 
 WILLIAM THOS. CHARLEY, D.C.L(OxoN.),M.P., 
 
 Of the Inner Temple, Esq., Barrister-at-Law, late Exhibitioner of the Council of 
 
 Legal Education, Author of a Treatise on " The Real Property Acts, 1874," 
 
 and " The Land Transfer Act, 1875." 
 
 LONDON : 
 WATERLOW AND SONS, 
 
 BIRCHIN LANE, PARLIAMENT STREET, AND LONDON WALL.
 
 T 
 C 
 
 1875
 
 TO 
 
 T. HENRY BAYLIS, ESQUIRE, 
 
 ONE OF HER MAJESTY'S COUNSEL, 
 
 WHO UNITES TO AN INTIMATE ACQUAINTANCE WITH THE EXISTING SYSTEM 
 
 OF PRACTICE AND PLEADING OF THE SUPERIOR COURTS OF LAW, 
 
 AN EXPERIMENTAL KNOWLEDGE OF 
 
 THE SCIENCE OF SPECIAL PLEADING, 
 
 AS IT EXISTED ANTERIOR TO THE COMMON LAW PROCEDURE ACTS, 
 THIS ATTEMPT TO ILLUSTRATE AND EXPLAIN THE 
 
 NEW SYSTEM OF PRACTICE AND PLEADING UNDER THE 
 
 SUPREME COURT OF JUDICATURE ACTS, 
 is (WITH PERMISSION) INSCRIBED BY 
 
 HIS AFFECTIONATE PUPIL. 
 
 71 / 5-<? 5"
 
 iFAQOB PHILLIPS- fr s.G 
 
 IN 1874 a work entitled, " The Practice under the Judi- 
 cature Acts, 1873 and 1874, containing the Acts, 'with 
 notes and references, an abstract of the Acts, the Rules 
 of Court, forms of proceedings, forms of pleadings, and 
 a copious Index/' was projected by the late "John T. 
 Hughes, Esquire, of the Middle Temple, barrister-at-law." 
 Mr. Hughes, after writing a careful abstract of the Supreme 
 Court of Judicature Act, 1873, and of the Supreme Court 
 of Judicature Bill, 1874, and some useful explanatory 
 notes to the more important sections of the former measure, 
 lost his life, unfortunately, in a railway accident. His 
 unfinished MS. was placed in my hands near the close of 
 last Session, with a view to its adaptation to the legis- 
 lation of 1875. The Supreme Court of Judicature Act, 
 1875, has repealed a considerable portion of the Supreme 
 Court of Judicature Act, 1873 ; while the Supreme Court 
 of Judicature Bill, 1874, was withdrawn near the close of 
 the Session of last year. I found it necessary to re-write 
 the entire work, and for the present volume I am solely 
 responsible. The abstract has been omitted from waijt of 
 space. By means of short annotations to every section 
 and every Rule of the new Acts, I have endeavoured, in 
 a very simple and unpretending way, but, I trust, with a 
 due regard to accuracy of quotation and reference, to 
 explain the new system of pleading and practice, and to
 
 VI 
 
 point out the changes effected by it in the previously 
 existing law. The work is the result of severe and sus- 
 tained labour. I am fully conscious of its many imper- 
 fections and shortcomings, but, such as it is, I submit 
 it to the public and the profession, hoping that it may 
 prove of some slight use to them in their efforts to unravel 
 the intricacies of the fusion of the once rival, but at 
 length blended, systems of procedure in law and equity. 
 
 W. T. C. 
 
 5, CROWN OFFICE Row, TEMPLE, 
 October 1st, 1875.
 
 TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 SUPREME COURT OF JUDICATURE ACT, 1873 .. .. 1 171 
 Preamble . . . . . . . . . . . . . < . . 1 
 
 PRELIMINARY* 
 
 1. Short Title I 
 
 2. Commencement of Act . . . . . . . . . . . . 2 
 
 PART I. COKSTITUTION AND JUDGES or SUPREME COUBT. 
 
 3 Union of existing Courts into one Supreme Court . . . . 3 
 
 4. Division of Supreme Court into a Court of original and a Court 
 
 of appellate jurisdiction .. .. .. .. .. 5 
 
 6. Constitution of High Court of Justice . . . . . . . . 6 
 
 6. Constitution of Court of Appeal . . . . . . . . 9 
 
 7. Vacancies hy resignation of Judges and effect of vacancies 
 
 generally . . . . . . . . . . . . ..10 
 
 8. Qualifications of Judges. Not required to be Serjeants-at-Law 11 
 
 9. Tenure of office of Judges, and oaths of office. Judges not to 
 
 sit in the House of Commons . . . . . . . . ..11 
 
 10. Precedence of Judges .. .. .. .. .. ..12 
 
 11. Saving of rights and obligations of existing Judges .. .. 12 
 
 12. Provisions for extraordinary duties of Judges of the former 
 
 Courts . . . . . . . . . . . . . . 14 
 
 13. Salaries of future Judges .. .. .. .. .. ..15 
 
 14. Retiring pensions of future Judges of High Court of Justice, 
 
 and ordinary Judges of Court of Appeal . . . . . . 16 
 
 16. Salaries and pensions how to be paid .. .. .. ..17 
 
 PART II. JURISDICTION AND LAW. 
 
 16. Jurisdiction of High Court of Justice .. .. .. ..17 
 
 17. Jurisdiction not transferred to High Court .. .. 19 
 
 18. Jurisdiction transferred to Court of Appeal . . . . 20 
 
 19. Appeals from High Court . . . . . . . 22 
 
 20. No appeal from High Court or Court of Appeal to House of 
 
 Lords, or Judicial Committee . . . . . . . . 23 
 
 21. Power to transfer jurisdiction of Judicial Committee by Order 
 
 in Council . . . . . . . . . . . . 24 
 
 22. Transfer of pending business . . . . . . . . 25
 
 viii TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 23. Rules as to exercise of jurisdiction . . . . . . . . 27 
 
 24. Law and equity to be concurrently administered . . . . 28 
 
 25. Rules of law upon certain points. Administration of assets of 
 
 insolvent estates. Statutes of Limitation inapplicable to 
 express trusts. Equitable waste. Merger. Suits for pos- 
 session of land by mortgagors. Assignment of debts and 
 cboses in action. Stipulations not of the essence of con- 
 tracts. Injunctions and receivers. Damages by collisions 
 at sea. Infants. Cases of conflict not enumerated . . 38 
 
 PART III. SITTINGS AND DISTRIBUTION OF BUSINESS. 
 
 26. Abolition of Terms 68 
 
 27. Vacations 69 
 
 28. Sittings in Vacation 71 
 
 29. Jurisdiction of Judges of High Court on Circuit . . . . 71 
 
 30. Sittings for Trial by Jury in London and Middlesex . . . . 74 
 
 31. Divisions of the High Court of Justice . . . . . . . . 76 
 
 32. Power to alter Divisions by Order in Council . . . . . . 80 
 
 33. Kules of Court to Provide for Distribution of Business . . 82 
 
 34. Assignment of certain Business to particular Divisions of 
 
 High Court, subject to Rules . . . . . . . . 83 
 
 35. Option for any Plaintiff (subject to Rules) to choose in what 
 
 Division he will sue . . . . . . . . . . 87 
 
 36. Power of Transfer 88 
 
 37. Sittings in London and Middlesex and on Circuits . . . . 90 
 38 Rota of Judges for Election Petitions .. .. .. ..91 
 
 39. Powers of one or more Judges not constituting a Divisional 
 
 Court 92 
 
 40. Divisional Courts of the High Court of Justice . . 95 
 
 41. Divisional Courts for business of Queen's Bench, Common 
 
 Pleas, and Exchequer Divisions . . . . . . 97 
 
 42. Distribution of business among the Judges of the Chancery 
 
 and Probate, Divorce and Admiralty Divisions of the High 
 Court 100 
 
 43. Divisional Courts for business of the Chancery Division . . 101 
 
 44. Divisional Courts for business belonging to the Probate, 
 
 Divorce, and Admiralty Division . . . . . . . . 102 
 
 45. Appeals from inferior Courts to be determined by Divisional 
 
 Courts .. .. .. .. .. .. .. .. 103 
 
 46. Cases and points may be reserved for or directed to be argued 
 
 before Divisional Courts . . . . . . . . .106 
 
 47. Provision for Crown Cases reserved . . . . . . . . 108 
 
 48. Motions for New Trials to be heard by Divisional Courts . . 110 
 
 49. What Orders shall not be subject to Appeal 110 
 
 60. As to discharging Orders made in Chambers .. .. ..112 
 
 51. Provision for absence or vacancy in the office of Judge . . 114 
 
 52. Power of a single Judge in Court of Appeal 114 
 
 63. Divisional Courts of Court of Appeal . . . . , . . . 115 
 54. Judges not to sit on Appeal from their own judgments . . 116 
 
 65. Arrangements for business of Court of Appeal and for hearing 
 
 Appeals transferred from Judicial Committee of the Privy 
 Council .. .. .. .. .. .. .. H
 
 TABLE OF CONTENTS. IX 
 
 SECTION PAGE 
 
 PART IV. TRIAL AND PROCEDURE. 
 
 56. References and Assessors . . . . . . . . . . ..117 
 
 57. Power to direct Trials before Referees . . . . . . . . 120 
 
 58. Power of Referees and effect of their findings .. .. .. 121 
 
 59. Powers of Court with respect to proceedings before Referees 121 
 
 60. Her Majesty may establish District Registries in the country 
 
 for the Supreme Court .. .. .. .. .. ..122 
 
 61. Seals of District Registries .. .. .. .. ..125 
 
 62. Powers of District Registrars 126 
 
 63. Fees to be taken by District Registrars .. .. .. ..126 
 
 64. Proceedings to be taken in District Registries . . . . . . 127 
 
 65. Power for Court to remove proceedings from District 
 
 Registries 128 
 
 66. Accounts and inquiries may be referred to District Registrars 129 
 
 67. 30 and 31 Viet., c. 142, ss. 5, 7, 8, and 10 to extend to actions 
 
 in High Court 130 
 
 68. Rules of Court may be made by Order in Council before com- 
 
 mencement of the Act. Rules to be laid before Parliament, 
 and may be annulled on Address from either House . . 132 
 
 69. Rules in Schedule to regulate procedure till changed by other 
 
 Rules after commencement of Act .. .. .. ..134 
 
 70. Rules of Probate, Divorce, Admiralty, and Bankruptcy Courts 
 
 to be Rules of the High Court 135 
 
 71- Criminal procedure, subject to future Rules, to remain unaltered 136 
 
 72. Act not to affect rules of evidence or juries . . . . . . 137 
 
 73. Saving of existing procedure of Courts when not inconsistent 
 
 with this Act or Rules .. .. .. .. .. ..137 
 
 74. Power to make and alter Rules after commencement of Act . . 138 
 
 75. Councils of Judges to consider procedure and administration 
 
 of justice .. .. .. .. .. .. .. .. 138 
 
 76. Acts of Parliament relating to former Courts to be read as 
 
 applying to Courts under this Act . . . . . . . . 140 
 
 PART V. OFFICERS AND OFFICES. 
 
 77. Transfer of existing staff of officers to Supreme Court 141 
 
 78. Ofiicers of Courts of Pleas at Lancaster and Durham . . 146 
 
 79. Personal olficers of future Judges . . . . . . 149 
 
 80. Provisions as to officers paid out of fees. . . . . . 150 
 
 81. Doubts as to the status of officers to be determined by Rule 151 
 
 82. Powers of commissioners to administer oaths .. .. 151 
 
 83. Official Referees to be appointed . . . . . . . . 152 
 
 84. Duties, appointment, and removal of officers of Supreme Court 153 
 
 85. Salaries and pensions of officers . . . . . . . . . . 155 
 
 86. Patronage not otherwise provided for . . . . . . . . 156 
 
 87. Solicitors and attorneys .. .. .. .. ., .. 156 
 
 PART VI. JURISDICTION OF INFERIOR COURTS. 
 
 88. Power by Order in Council to confer jurisdiction on inferior 
 
 Courts . . . . . . . . . . . . . . . . 159 
 
 89. Powers of inferior Courts having Equity and Admiralty 
 
 jurisdiction .. .. .. .. .. .. .. 159 
 
 90. Counter-claims in inferior Courts, and transfers therefrom . . 161 
 
 91. Rules of law to apply to inferior Courts. . . . . . . . 162
 
 X TABLE OF CONTENTS. 
 
 SECTION PAGE 
 
 PAKT VII. MISCELLANEOUS PROVISIONS. 
 
 92. Transfer of books and papers to Supreme Court . . . . . . 163 
 
 93. Saving as to circuits, &c. .. .. .. .. .. .. 164 
 
 94. Saving as to Lord Chancellor .. .. .. .. .. 164 
 
 95. Saving as to Chancellor of Lancaster . . . . . . . . 165 
 
 96. Saving as to Chancellor of the Exchequer and Sheriffs . . 165 
 
 97. Saving as to Lord Treasurer and office of the Receipt of 
 
 Exchequer 166 
 
 98. Provisions as to Great Seal being in commission .. ..167 
 
 99. Provisions as to Commissions in Counties Palatine . . . . 168 
 100. Interpretation of terms .. .. .. .. .. .. 168 
 
 SUPREME COURT OF JUDICATURE ACT, 1875 . . . . . . 191 270 
 
 1. Short title and construction with 36 & 37 Viet., c. 66 . . . . 192 
 
 2. Commencement of Act . . . . . . . . . . . . 192 
 
 3. Explanation of 36 & 37 Viet., c. 66, s. 5, as to number of Judges 196 
 
 4. Constitution of Court of Appeal . . . . . . . . . . 198 
 
 5. Tenure of office of Judges, and oaths of office. Judges not to 
 
 sit in the House of Commons . . . . . . . . . . 207 
 
 6. Precedence of Judges . . . . . . . . . . . . 210 
 
 7. Jurisdiction of Lords Justices in respect of lunatics .. ..211 
 
 8. Admiralty Judges and Registrar.. .. .. .. .. 214 
 
 9. London Court of Bankruptcy not to be transferred to High 
 
 Court of Justice . . . . . . . . . . . . . . 218 
 
 10. Amendment of 36 & 37 Viet., c. 66, s. 25, as to rules of law 
 
 upon certain points . . . . . . . . . . . . 220 
 
 11. Provision as to option for any plaintiff (subject to Rules) to 
 
 choose in what division he will sue, in substitution for 36 
 
 & 37 Viet., c. 66, s. 35 223 
 
 12. Sittings of Court of Appeal 225 
 
 13. Amendment of section 60 of 36 & 37 Viet., c. 66, as to District 
 
 Registrars 226 
 
 14. Amendment of 36 & 37 Viet., c. 66, s. 87, as to enactments 
 
 relating to Attorneys . . . . . . . . . . . . 229 
 
 15. Appeal from inferior Court of Record . . . . . . . . 230 
 
 16. Rules in Schedule in substitution for 36 & 37 Viet., c. 66, s. 69 
 
 and Schedule 231 
 
 17. Provision as to making of Rules of Court before or after the 
 
 commencement of the Act, in substitution for 36 & 37 Viet., 
 
 c. 66, ss. 68, 69, 74, and Schedule 232 
 
 18. Provisions as to Rules of Probate, Divorce, and Admiralty 
 
 Courts, being Rules of the High Court, in substitution for 
 
 36 & 37 Viet., c. 66, s. 70 235 
 
 19. Provision as to criminal procedure, subject to future Rules 
 
 remaining unaltered, in substitution for 36 & 37 Viet., c. 
 66, s. 71 236 
 
 20. Provision as to Act not affecting rules of evidence or juries, 
 
 in substitution for 36 & 37 Viet., c. 66, s. 72 . . . . 237 
 
 21. Provision for saving of existing procedure of courts when not 
 
 inconsistent with this Act or Rules of Court, in substitu- 
 tion for 36 & 37 Viet., c. 66, s. 73 238 
 
 22. Nothing in Act to prejudice right to have issues submitted, &c. 239 
 
 23. Regulation of circuits . . . . . . . . . . . . z42
 
 TABLE OF CONTENTS. XI 
 
 SECTION PAGE 
 
 24. Additional power as to regulation of practice and procedure by 
 
 Rules of Court . . 248 
 
 25. Orders and Rules to be laid before Parliament, and may be 
 
 annulled on address from either House . . . . . . 249 
 
 26. Fixing and collection of fees in High Court and Court of 
 
 Appeal 250 
 
 27. Provisions as to Lancaster Fee Fund, and salaries, &c. of 
 
 officers of Courts at Lancaster and Durham . . . . . . 254 
 
 28. Annual account of fees and expenditure . . . . . . . . 258 
 
 29. Amendment of law as to payments to senior puisne Judge of 
 
 Queen's Bench and Queen's Coroner . . . , . . . . 259 
 
 30. Amendment of 35 & 36 Viet., c. 44, as to the transfer of Govern- 
 
 ment securities to and from the Paymaster General on be- 
 half of the Court of Chancery and the National Debt 
 
 Commissioners . . . . . . . . . . . . . . 260 
 
 31. Abolition of secretary to the Visitors of lunatics .. .. 262 
 
 32. Amendment of 32 & 33 Viet., c. 83, s. 19 ; and 32 & 33 Viet., 
 
 c. 71, s. 116, as to payment of unclaimed dividends to per- 
 sons entitled . . . . . . . . . . . . . . 263 
 
 33. Repeal 265 
 
 34. As to vacancies in any office within section seventy-seven of 
 
 principal Act . . . . . . . . . . . . . . 266 
 
 35. Amendment of principal Act, section seventy-nine, as to 
 
 Chamber Clerks 267 
 
 FIRST SCHEDULE RULES OF COURT .. .. .. .. 271 
 
 ORDER 
 
 I. Form and Commencement of Action . . . . . . . . 272 
 
 II. Writ of Summons and Procedure, &c. . . . . . . 277 
 
 III. Indorsements of Claim . . . . . . . . . . . . 284 
 
 IV. Indorsement of Address . . . . . . . . . . 289 
 
 V. Issue of Writs of Summons . . . , . . . . . . 291 
 
 1. Place of Issue 291 
 
 2. Option to choose Division in Certain Cases . . . . 292 
 
 3. Generally 293 
 
 4. In particular Actions . . . . . . . . . . 296 
 
 VI. Concurrent Writs . . 299 
 
 VII. Disclosure by Solicitors and Plaintiffs . . . . . . 300 
 
 VIII. Renewal of Writ 301 
 
 IX. Service of Writ 303 
 
 1. Mode of Service .. .. 303 
 
 2. On particular Defendants . . . . . . . . 304 
 
 3. On Partners and other Bodies . . . . . . . . 306 
 
 4. In particular Actions . . . . . . . . . . 308 
 
 5. Generally 310 
 
 X. Substituted Service .. .. .. .. .. .. 310 
 
 XI. Service out of the Jurisdiction .. .. .. ..311 
 
 XII. Appearance .. .. .. .. .. .. .. 316 
 
 XIII. Default of Appearance . . . . . . . . . . . . 323 
 
 XIV. Leave to defend where Writ specially indorsed . . . . 332 
 
 XV. Application for Account, where Writ indorsed, under Order 
 
 III, Rule 8 335 
 
 XVI. Parties 336 
 
 XVII. Joinder oi Causes of Action . . . , . . . . . . 349
 
 Xll 
 
 TABLE OF CONTENTS 
 
 ORDER PAGE 
 
 XVIII. Actions by and against Lunatics and persons of un- 
 sound mind . . . . . . . . . . . . 3.53 
 
 XIX. Pleading generally .. .. .. .. .. .. 355 
 
 XX. Pleading matters arising pending the Action . . ..372 
 
 XXI. Statement of Claim .. .. .. .. .. 374 
 
 XXII. Defence : 377 
 
 XXIII. Discontinuance .. .. .. .. .. .. 381 
 
 XXIV. Reply and subsequent Pleadings .. .. .. .. 383 
 
 XXV. Close of Pleadings 385 
 
 XXVI. Issues 385 
 
 XXVII. Amendment of Pleadings 386 
 
 XXVIII. Demurrer 391 
 
 XXIX. Default of Pleading 397 
 
 XXX Payment into Court in satisfaction . . . . . . 403 
 
 XXXI. Discovery and Inspection . . . . . . . . . . 405 
 
 XXXII. Admissions .. .. .. .. .. .. .. 417 
 
 XXXIII. Inquiries and Accounts .. .. .. .. .. 418 
 
 XXXIV. Questions of Law 419 
 
 XXXV. Proceedings in District Registries . . . . . . 423 
 
 XXXVI. Trial 431 
 
 XXXVII. Evidence generally 448 
 
 XXXVIII. Evidence by Affidavit 450 
 
 XXXIX. Motion for New Trial 453 
 
 XL. Motion for Judgment . . . . . . . . . . 456 
 
 XLI. Entry of Judgment . . . . . . . . . . 462 
 
 XLII. Execution 466 
 
 XLIII. Fieri Facias and Elegit 479 
 
 XLIV. Attachment 482 
 
 XLV. Attachment of Debts 483 
 
 XLVI. Charging of Stock and Distringas . . . . . . 488 
 
 XL VII. Writ of Sequestration 490 
 
 XL VIII. Writ of Possession ,. ..492 
 
 XL1X. Writ of Delivery .. .. : 493 
 
 L. Change of Parties by Death, &c 494 
 
 LI. Transfers and Consolidation . . . . . . . . 499 
 
 LII. Interlocutory Orders as to Mandamus Injunctions or 
 
 interim Preservation of Property, &c. . . . . 501 
 
 LIII. Motions and other Applications . . . . . . . . 506 
 
 LIV. Applications at Chambers .. .. .. .. ..510 
 
 LV. Costs 513 
 
 LVI. Notices and Paper, &c 516 
 
 LVII. Time 517 
 
 LVIII. Appeals 520 
 
 LIX. Effect of non-compliance .. .. .. .. ..531 
 
 LX. Officers 532 
 
 LXI. Sittings and Vacations . . . . . . . . . . 533 
 
 LXII. Exceptions from the Rules . . . . , . . . 538 
 
 LXI II. Interpretation of Terms .. .. .. .. .. 538 
 
 APPENDIX (A) .. .. .. -. .. .. .. 540 558 
 
 PART I. Forms of Writs of Summons, etc. 
 
 Writs of Summons 540 543 
 
 Memorandum of Appearance . . . . . . . . . . . . 543 
 
 Limitation of Defence in Action for Recovery of Land . . . . 544
 
 TABLE OF CONTENTS. XlH 
 
 PART II. Forms of Indorsements. 
 
 General Indorsements .. .. .. .. .. .. 544 556 
 
 Special Indorsements . . . . . . . . . . . . . . 666 
 
 Indorsements of Character of Parties .. .. .. .. ..577 
 
 APPENDIX (B) 558567 
 
 1. Notice by Defendant to Third Party 558 
 
 2. Confession of Defence . . . . . . . . . . . . 559 
 
 3. Indorsement in lieu of statement of complaint . . . . . . 560 
 
 4. Notice of counter-claim to Third Party . . . . . . . . 560 
 
 5. Notice of Payment into Court . . . . . . . . . . 560 
 
 6. Acceptance of Sum paid into Court . . . . . . . . . ." 561 
 
 7. Interrogatories .. .. .. .. .. .. ..561 
 
 8. Answer to Interrogatories . . . . . . . . . . . . 561 
 
 9. Affidavit as to Documents . . . . . . . . . . . . 562 
 
 10. Notice to produce Documents .. .. .. .. .. 563 
 
 11. Notice to inspect Documents at Solicitor's office .. .. .. 563 
 
 12. Notice to admit Documents .. .. .. .. .. .. 664 
 
 13. Memorandum of entry of Special Case . . . . . . . . 565 
 
 14. Notice of Trial 566 
 
 15. Certificate of Officer after Trial by J ury .. .. .. .. 566 
 
 16. Affidavit of Scripts 567 
 
 APPENDIX (C) 567620 
 
 Issues of Fact 567620 
 
 Demurrer . . . . . . . . . . . . . . . . . . 620 
 
 Entry of Demurrer for Argument . . . . . . . . . . 620 
 
 APPENDIX (D) 620623 
 
 Forms of Judgment . . . . . . . . . . . . 620 623 
 
 APPENDIX (E) . . . . 623 625 
 
 Forms of Prsecipe . . . . . . . . . . . . . . 623 - 625 
 
 APPENDIX (F) 626633 
 
 Forms of Writs of Execution .. .. .. .. .. 626 633 
 
 SECOND SCHEDULE . . . . . . . . . . . . . . . . 634 
 
 OKDERS IN COUNCIL . . . . . . . . . . . . 635667 
 
 ADDITIONAL UULES OF COURT . . . . . . . . . . 635 663 
 
 Orders I. to V. Printing 636641 
 
 Order VI. Costs 641 663 
 
 Formation of District Registries. . . . . . . . . . 664 667 
 
 INDEX , . 669
 
 CHIPPENHAM, WILT 
 
 NOTANDA, 
 
 P. 284. 
 TESTE OF WEIT. 
 
 " Witness, &c.," is the abbreviated form of teste given in Appendix (A), 
 Part I, No. 1 of the Schedule to the Supreme Court of Judicature Act, 
 1875. The form given in the Schedule (A), No. 1, of the Common Law 
 Procedure Act, 1852, is similarly abbreviated. The form of teste given 
 in Appendix (F), No. 2, to the writ of elegit is, " Witness ourselves at West- 
 minster, &c.," to the writ of Venditioni exponas, " Witness ourself at 
 Westminster the day of in the year of our reign." 
 
 This form is identical with that given in Schedule (E) of the Consolidated 
 Orders of the Court of Chancery as the teste to the writ of subpoena in that 
 Court. It cannot be supposed that there will be one form of teste for a 
 writ of summons and another form of teste for a writ of execution, under 
 the new practice. The word " ourself "* or " ourselves " occupying the 
 space appropriated in a Common Law writ to the name of the Lord Chief 
 Justice or t the Lord Chief Baron, it follows that the name of the Lord 
 Chancellor must be inserted elsewhere. The forms in Appendix (F) afford 
 no clue to the position which the name of the Lord Chancellor is to occupy, 
 but the writ of subpoena in Chancery does afford such a clue. The name 
 of the Judge in Chancery attesting a writ of subpoena is placed at the end 
 of the teste, thus, " Eomilly, M.R." It may, therefore, be assumed that 
 the full form of the teste both of a writ of summons and of a writ of 
 execution, will be " Witness ourself at Westminster the day of 
 
 in the year of our reign. 
 
 " Cairns, 0."
 
 XVI 
 
 NOTANDA. 
 
 P. 290. 
 
 ADDRESS FOR SERVICE BOOK. 
 
 In the Masters'. Office* two "Address for Service Books " are kept, one 
 pursuant to section 165, and the other pursuant to section 166 of the 
 Reg. Gen. Hil. T., 1853. The former is called " The Solicitors' Address 
 for Service Book," the latter, " The Plaintiffs' and Defendants' Address 
 for Service Book." The "Solicitors' Address for Service Book" in the 
 office of the Masters of the Common Pleas, is a rather venerable-looking 
 document, most of the entries having heen made many years ago. The 
 " Plaintiffs' and Defendants' Address for Service Book " is, on the other 
 hand, quite a fresh -looking document, the entries being made almost daily. 
 The names and addresses of the plaintiffs and defendants are entered 
 indiscriminately. The form is as follows : 
 
 Date. 
 
 Cause. 
 
 Address for Service. 
 
 Nov. 1st, 1874. 
 Nov. 2nd, 1874. 
 
 Robinson ats. Jones. 
 Williams v. Brown. 
 
 5, Upper Smith Street. 
 2, Lower John Street. 
 
 The first entry is, of course, that of a defendant's address for service, 
 the second entry is that of a plaintiff's. The entries are made irrespective 
 of any alphabetical order, just as the plaintiff or defendant calls at the 
 office. The searches for the addresses for service of plaintiffs are made 
 according to the date of the writ ; the searches for the addresses for ser- 
 vice of the defendants is made according to the date of the appearance. 
 The date, it will be perceived, occupies the first column. 
 
 * The writer desires to acknowledge the courtesy with which the Chief 
 Clerk of the office of the Masters of the Common Pleas placed valuable 
 information on points of practice at his disposal.
 
 NOTANDA. 
 
 XV11 
 
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 XV1U NOTANDA. 
 
 The " Cause Book" is thus an exhaustive summary of the whole pro- 
 ceedings in the cause from beginning to end, with this qualification, that 
 the decree or order pronounced in the cause is not set out at length or 
 even attempted to be summarised. The date only of the decree or order ia 
 inserted, supplemented by a " reference to the Registrars' Books." 
 
 The Registrars' Books are filled up at the Registrars' Office and sent 
 over, as soon as filled up, to the Record and Writ Clerks' Office to be 
 kept there. Every proceeding in the cause down to interrogatories ;m<l 
 motions ex-parte is carefully set out in extenso in the Registrars' Books. 
 These ponderous tomes will, in future, it is to be hoped, be less voluminous. 
 About two-thirds of the matter inserted in them might, with advantage, 
 be omitted. Common Law proceedings are, perhaps, not sufficiently 
 placed on record, but there can be little doubt that the existing system of 
 placing every proceeding in a cause, however trivial it may be, on record 
 in the Chancery Registrars' Office, might be advantageously pared down to 
 smaller dimensions. 
 
 The Record and Writ Clerks keep books in the nature of Indexes to 
 the Chancery causes. 
 
 The following is the form of entry : 
 
 Reference to Cause. 
 
 Name of Cause. 
 
 Name of Judge. 
 
 1873. 0. 41 
 
 Jones v. Smith. 
 
 V. C. Malins. 
 
 The entry is under the name of the plaintiff (or first plaintiff) in 
 alphabetical order. The book which the writer inspected was to Z. 
 The entries are, at first, made in paper books ; but, at the end of three 
 years the entries are transferred to very durable volumes of parchment. 
 
 Everything almost that is written or printed in the course of a Chancery 
 cause is filed with the Clerks of Records and Writs ; and some surprise 
 has been expressed that there is no direction in the Judicature Act of 
 1875, that anything shall be filed, except a copy of the writ and certain 
 affidavits, &c. The Acts speak of "delivering," not of "filing" the 
 pleadings. Some allusions to filing pleadings in the repealed Schedule to 
 the Judicature Act of 1873 are not reproduced in the Schedule to the 
 Judicature Act of 1875. 
 
 The method of filing the pleadings in the Record and Writ Clerks' Office 
 is very simple. The various documents, commencing with the bill and 
 ending with the replication, are laid in chronological order, one upon the 
 top of the other. Formerly the documents were " hooked," i.e., strung 
 upon a hook passed though the ends of the parchment, but this was, of course, 
 discontinued, when parchment ceased to be employed. The little pile of 
 documents in each cause is secured by a leathern strap fastened -with a 
 buckle, which is easily undone, when an examination of any document 
 becomes necessary. The little piles thus strapped are placed carefully 
 away in their appropriate pigeon holes.* 
 
 * The writer is indebted to Mr. Ward, the Record and Writ Clerk, for 
 the opportunity of inspecting the method of keeping cause-books and 
 indexes, and the method of filing proceedings in the Court of Chancery.
 
 NOT AN DA. XIX 
 
 P. 318. 
 
 APPEARANCES AND PR^EOIPES. 
 
 The number of writs of summons issued by the Common Pleas 
 during the quarter ending the 30th of June, 1875, was 5,220 ; the number 
 of appearances entered to these writs, only 1,742. The respective numbers 
 for the quarter ending the 31st of March were 4,561, and 1,650. The 
 writs of summons issued from the same Court in 1874 were 17,348; 
 the appearances to these writs, 6,045. These figures are the best justifi- 
 cation of the practice of keeping the entries of writs and of appearances in 
 separate books, which has hitherto prevailed in the offices of the Masters 
 of the Courts of Common Law. In nearly two-thirds of the cases no 
 appearance at all is entered. In a majority of cases the defendant sur- 
 renders at discretion at the first sight of the writ ; and compromises or 
 fully satisfies the plaintiff's claim. The practice in Chancery is wholly 
 different. Causes commenced there are often of a friendly character ; and 
 those of a hostile character are generally fought out to the bitter end. 
 It is only natural, therefore, that in Chancery the appearance should be 
 entered in the same book as the title of the Bill. The only trace of a 
 Common Law action which remains on record where the action proceeds 
 no further than the issuing of the writ of summons, is the prcecipe. The 
 prcecipes and appearance-pieces are now almost the only documents, 
 except affidavits, filed in an action at Common Law. They are " filed " 
 by being strung (just as they come in) upon a string, a mode of filing 
 adopted with a view to facility of reference. The prcecipes, when suffi- 
 ciently numerous, are fastened together in a heap between two pieces of 
 stout millboard, bent so as to protect the edges. The appearance-pieces 
 are tied up, when sufficiently numerous, in brown paper parcels. Tne 
 heaps of prcecipes and parcels of appearance-pieces are labelled outside, 
 so that they can be identified, when it is requisite to refer to them. The 
 prcecipes and appearance-pieces used to be kept for ten years at the 
 Master's Office, and then sent to the Record Office to be permanently kept. 
 Complaints, however, having been made of the difficulty of finding space 
 at the Record Office for these constantly-accumulating documents, the 
 Judges of the Common Pleas drew up and signed an instruction, dated 
 30th June, 1874, authorising the Masters of that Court to destroy the 
 prcecipes and appearance-pieces at the end of the ten years, instead of 
 sending them over to the Record Office. What a contrast this presents 
 to the Chancery practice ! At either the Record and "Writ Clerks' or the 
 Registrars' Offices, a copy is kept of every document in each case. Where 
 the only trace of an action at Common Law is the filed preecipe, even, 
 that trace disappears at the end of ten years.
 
 XX 
 
 NOTANDA. 
 
 H 
 }Zi 
 H 
 
 a 
 O 
 Q 
 P 
 
 e^-S 
 
 s 
 
 '111- 
 
 b s 'S 
 
 &* Q .2 
 
 O C rt P< 
 O " |S 
 
 i'i.sl 
 
 iR - r. I 
 3*S 3.5*d 
 
 Il^ll 
 
 _O *r^ --. H ^*^ 
 r 3 > M W*H 
 
 fl,d 
 
 9 
 
 811 
 
 M 
 
 i 
 
 Q^ 
 I
 
 NOT AND A. XXI 
 
 In the case of a judgment for default of appearance, the Master did not 
 tax the costs, as the amount was fixed by statute : in the case of a judg- 
 ment for want of a plea or after a trial or a writ of inquiry, the Master 
 taxed the costs, but only after judgment was signed and entered.* It 
 will be perceived that in the form there are separate columns for the debt 
 and the costs. The Master, when he had taxed the costs, entered the 
 amount on the postea or the judgment paper, and initialed it. Until 
 the Master's attocatur, the judgment was, technically, inchoate only. 
 The initials verified the master's finding. Under the new system 
 "a copy of all the pleadings" must be "delivered" to the officer 
 before he enters the judgment (Order XII, Rule 1), a ceremony borrowed 
 from the Chancery practice. Th"e judgment is to be entered by the officer 
 in an elaborate form, prescribed by Appendix (D). It is hardly likely 
 that this book is to be substituted for the simple and short form of entry of 
 judgment in use previously at the Master's office. The forms of judg- 
 ment in Appendix (D) which vary in different cases would then have to be 
 copied into the book at full length, a practice which would be analagous 
 to copying in the postea, instead of the particulars which it contains. 
 
 The " motion for judgment" seems to be a resort to something like the 
 old system of requiring a " rule for judgment," abrogated by the Common 
 Law Procedure Act. 
 
 P. 404. 
 PAYMENT INTO COURT. 
 
 The system pursued in the Office of the Masters of the Court of 
 Common Pleas differs from that adopted in the office of the Masters of 
 the Queen's Bench. The solicitor takes the plea of payment into Court 
 and the money to the Chief Clerk of the Masters, who pays the money 
 into Child's Bank. When the money so lodged at that bank reaches a 
 certain amount, the Chief Clerk draws a cheque upon the bank for it and 
 lodges it in the Bank of England. When the plaintiff comes to take the 
 money out of Court, the Chief Clerk pays him by a cheque upon the 
 Bank of England, where there is always a balance of at least 10,000 
 standing to the Chief Clerk's credit. 
 
 THE SUPERINTENDENT OF THE COUNTY COURT'S 
 OFFICE. 
 
 This Officer is preparing Rules for the purpose of carrying out the 
 provisions of s. 89 of the Principal Act. 
 
 * The curious reason assigned for thus inverting the natural order of 
 proceedings is that the solicitor might otherwise take his fee and not sign 
 judgment at all.
 
 XX11 
 
 NOTANDA. 
 
 ffi 
 
 ok 
 
 to 
 
 lent 
 .n f 
 
 Deb 
 The 
 
 n t 
 873 
 
 nt 
 y 
 
 The Debt Attachment Book is comparatively lit 
 Masters of the Court of Common Pleas is date 
 red. The form in which it is kept is as follows 
 
 Jil'S 
 
 Si 1 :!? 
 
 pqO 
 
 
 a >( x 
 
 Hi
 
 NOT AND A. XX111 
 
 P. 502. 
 
 SALE OF PERISHABLE GOODS, WARES AND 
 MERCHANDISE. 
 
 An illustration of this under the previous practice occurred 
 recently (on the 31st August, 1875,) in the case of Griffits v. Miller. 
 Mr. Baron Bramwell made an order for the sale of growing crops, the 
 sheriff (it was an interpleader case) paying the proceeds of the sale into 
 Court, and the claimant proceeding to trial. The growing crops would 
 otherwise, it is believed, have perished. 
 
 THE INCORPORATED LAW SOCIETY. 
 
 As the Registrar of Attorneys and Solicitors this Society is preparing 
 Rules pursuant to s. 14 of the Amending Act, re-enacting, with certain 
 not unimportant alterations, the regulations relative to the Preliminary, 
 Intermediate and Final Examinations, to the admission and re-admission 
 of Solicitors, and to the taking out and renewal of certificates to practice.
 
 JACOB PHILLIPS & 6 O N, 
 OHIPPENHAM, WILTS, 
 
 SUPREME COURT OF JUDICATURE 
 ACT, 1873, 
 
 3Q & 37 VICTORIA, CHAPTER 66. 
 
 An Act for the constitution of a Supreme Court, 
 and for other purposes relating to the better 
 Administration of Justice in England ; 
 
 And to authorise the transfer to the Appellate Division of such Supreme 
 Court of the Jurisdiction of the Judicial Committee of Her Majesty's 
 Privy Council. 
 
 As sections 21 and 55 of the present Act, which relate 
 to the Judicial Committee, are suspended by the 2nd 
 section of the Supreme Court of Judicature Act, 1875, 
 till the 1st of November, 1876, the latter part of the title 
 to this Act may be considered as similarly suspended. 
 
 "VITHEREAS it is expedient to constitute a 
 
 * Supreme Court, and to make provision for 
 
 the better administration of Justice in England : 
 
 And whereas it is also expedient to alter and amend the law relating to 
 the Judicial Committee of Her Majesty's Privy Council. 
 
 The latter Clause of the Preamble may be considered as 
 suspended till the 1st of November, 1876: 
 
 Be it enacted by the Queen's most Excellent 
 Majesty, by and -with the advice and consent of 
 the Lords Spiritual and Temporal, and Commons, 
 1
 
 2 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 IB. this present Parliament assembled, and by the 
 authority of the same, as follows : 
 
 PRELIMINARY. 
 
 SECTION 1. Short Title. 
 This Act may be cited for all purposes as the 
 " Supreme Court of Judicature Act, 1873." 
 
 By section 1 of the Supreme Court of Judicature Act, 
 1875, it is provided that this Statute and the Supreme 
 Court of 'Judicature Act, 1875, may be cited together as 
 " The Supreme Court of Judicature Acts, 1.873 and 1875." 
 
 SECTION 2. Commencement of Act. 
 
 This Act, except any provision thereof which is declared to take effect on 
 the passing of this Act, shall commence and come into operation on the second 
 day of November, 1874. 
 
 By the Statute 37 and 38 Viet., cap. 83, " Supreme 
 Court of Judicature (Commencement) Act, 1874," section 
 1. this section is repealed. By section 2 of that Act, it is 
 provided that the Supreme Court of Judicature Act, 1873, 
 except any provisions thereof directed to take effect on the 
 passing of that Act, shall commence and come into opera- 
 tion on the first day of November, 1875, and the said 
 first day of November, 1875, shall be taken to be the 
 time appointed for the commencement of the said Act. 
 
 The Supreme Court of Judicature (Commencement) 
 Act was passed at the close of the Session of 1874, on 
 account of the withdrawal of the Supreme Court of Judi- 
 cature (1873) Amendment Bill. The competing claims 
 of the Scottish Church Patronage Bill, the English Public 
 Worship Bill, and the Endowed Schools Bill led to its 
 withdrawal. The Supreme Court of Judicature (Com- 
 mencement) Act, 1874, is not affected by the Supreme 
 Court of Judicature Act, 1875 ; but by the 2nd section of 
 the last-mentioned Act it is provided that that Act, except 
 any provision of it which is declared to take effect before-
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 3 
 
 hand, shall commence and come into operation on the 1st 
 day of November, 1875, the same, date as that fixed by 
 the Supreme Court of Judicature (Commencement) Act, 
 1874, for the coming into operation of the Supreme Court 
 of Judicature Act, 1873. 
 
 The words in the pres.enj;, section, " except any provision 
 thereof which is declar&l'to take effect on the passing of 
 this Act," refer to section 25 (1) and (7), but see sec- 
 lion 10 of ' Amending Act ; section 27 (empowering Her 
 Majesty to make Orders in Council regulating Vacations) 
 section 60 (enabling the Queen to establish District Regis- 
 trars) ; and section 68 (as to making Rules of Court before 
 the commencement of the Act by Order in Council). 
 
 PART I. 
 
 CONSTITUTION AND JUDGES OE SUPREME COURT. 
 
 SECTION 3. Union of existing Courts into one 
 Supreme Court. 
 
 From and after the time appointed for the 
 commencement of this Act, the several Courts 
 hereinafter mentioned (that is to say), the High 
 Court of Chancery of England, the Court of 
 Queen's Bench, the Court of Common Pleas at 
 Westminster, the Court of Exchequer, the High 
 Court of Admiralty, the Court of Probate, the 
 Court for Divorce and Matrimonial Causes, 
 
 and the London Court_of^ankruptcy t shall be United and 
 
 consolidated together, and shall constitute, under 
 and subject to the provisions of this Act, one 
 Supreme Court of Judicature in Eiigland. 
 
 Section 33 of the Supreme Court of Judicature Act, 
 1875, and the second Schedule to that Act, repeal so much 
 of this section as relates to the London Court of Bank- 
 ruptcy. See also sections 16 and 34 infra. The substi-
 
 4 SUPREME COU>RT OF JUDICATURE ACT, 1873. 
 
 tuted provisions will be found in section 9 of the Amend- 
 ing Act, by which it is declared that the Principal Act 
 shall be construed as if the jurisdiction of the London 
 Court of Bankruptcy had not been transferred by it to the 
 High Court of Justice.* 
 
 This section is founded on the following recommenda- 
 tion of the Judicature Commissionf : 
 
 " We are of opinion that the defects which we have 
 adverted to cannot be completely remedied by any mere 
 transfer or blending of jurisdiction between the Courts as 
 at present constituted ; and that the first step towards 
 meeting and surmounting the evils complained of will be 
 the consolidation of all the Superior Courts of Law and 
 Equity, together with the Courts of Probate, Divorce and 
 Admiralty, into one Court to be called ' Her Majesty's 
 Supreme Court/ in which Court shall be vested all the 
 jurisdiction which is now exercisable by each and all of the 
 Courts so consolidated. This consolidation would at once 
 put an end to all conflicts of jurisdiction. No suitor would 
 be defeated because he commenced his suit in the wrong 
 Court, and sending the suitor from equity to law and from 
 law to equity to begin his suit over again, in order to 
 obtain redress, will be no longer possible." 
 
 " I propose," said Lord Selborne, C., when introducing 
 the Supreme Court of Judicature Bill, 1873, " to ask your 
 lordships to unite in one Supreme Court of Judicature all the 
 present Superior Courts of Common Law and Equity and 
 also the Probate and Divorce Court, the Admiralty Court 
 and the London or Central Court of Bankruptcy. I 
 do not mean to elevate any of the inferior Courts so as 
 to unite them to the superior Courts ; but it is proposed to 
 abolish two Common Law Jurisdictions, the Courts of Pleas 
 of the Counties Palatine of Lancaster and Durham ; they 
 will be merged in the jurisdiction of the High Court." 
 
 The only alteration in the scheme as stated by Lord 
 Selborne is the retention, as already mentioned, of the 
 London Court of Bankruptcy as a separate Court. 
 
 * The position assigned to the London Court of Bankruptcy by the 
 Amending Act was the subject of comment in the House of Commons in 
 1875. 
 
 f First Kcport (18G9), p. 9.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 5 
 
 SECTION 4. Division of Supreme Court into a 
 Court of Original and a Court of Appellate 
 Jurisdiction. 
 
 The said Supreme Court shall consist of two 
 permanent Divisions, one of which, under the 
 name of " Her Majesty's High Court of Justice," 
 shall have and exercise original jurisdiction, with 
 such appellate jurisdiction from inferior Courts 
 as is hereinafter mentioned, and the other of 
 which, under the name of " Her Majesty's Court 
 of Appeal," shall have and exercise appellate 
 jurisdiction, with such original jurisdiction, as 
 hereinafter mentioned, as may be incident to the 
 determination of any appeal. 
 
 As to appeals from inferior Courts, see s. 45 infra. 
 
 This section, as framed in 1873, had a different meaning 
 from that which attaches to it now. It was intended to be 
 an exhaustive division of the supreme judicature of the 
 kingdom, but at present it leaves untouched the jurisdiction 
 of the Final Courts of Appeal, the " Court of Appeal " 
 being only an intermediate Court of Appeal. 
 
 This section is, also, founded on a recommendation of 
 the Judicature Commission : " We propose that in the 
 place of the Court of Exchequer Chamber and of the 
 Court of Appeal in Chancery, both which Courts, as now 
 constituted, would cease to exist, there should be established., 
 as a part of the Supreme Court, a Court of Appeal." This 
 Court of Appeal was to be an intermediate Court of 
 Appeal, and it is a noteworthy fact, which it is only fair to 
 the present government to mention, that the Supreme Court 
 of Judicature Act, 1875, while it departs from the scheme of 
 Lord Selborne, which transferred to the new Court of 
 Appeal the appellate jurisdiction of the House of Lords, 
 and, to some extent, that of the Judicial Committee of the 
 Privy Council also, legislates upon the lines laid down in
 
 6 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 the Report of the Judicature Commission. The Court 
 of Appeal mentioned in the present section is not a final 
 but an intermediate Court of Appeal, representing the 
 former Court of Appeal in Chancery and Court of Ex- 
 chequer Chamber. As originally passed, the Court of 
 Appeal mentioned in the present section was the sole 
 Court of Appeal for England. It was not, however, while 
 changing the meaning of the name " Court of Appeal," 
 thought necessary to alter the name the name " Court of 
 Appeal " having now precisely the meaning which the 
 Judicature Commission intended it should have. 
 
 SECTION 5. Constitution of High Court of 
 Justice. 
 
 Her Majesty's High Court of Justice shall be 
 constituted as follows : Tbe first Judges thereof 
 shall be the Lord Chancellor, the Lord Chief 
 Justice of England, the Master of the Rolls, the 
 Lord Chief Justice of the Common Pleas, the 
 Lord Chief Baron of the Exchequer, the several 
 Vice-Chancellors of; the High Court of Chancery, 
 the Judge of the Court of Probate and of the 
 Court for Divorce and Matrimonial Causes, ^the 
 several Puisne Justices of the Courts of ..Queen's 
 Bench and Common Pleas respectively, the seve- 
 ral Junior Barons of the Court of Exchequer, and 
 the Judge of the High Court of Admiralty, 
 except such, if any, of the aforesaid Judges as 
 shall be appointed ordinary Judges of the^Court 
 of Appeal. 
 
 Subject to the provisions hereinafter contained, 
 whenever the office of a Judge of the said High 
 Court sball become vacant, a new Judge may be
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 7 
 
 appointed thereto by Her Majesty "by Letters 
 Patent. All persons to be hereafter appointed to 
 fill the places of the Lord Chief Justice of Eng- 
 land, the Master of the Rolls, the Lord Chief 
 Justice of the Common Pleas, and the Lord 
 Chief Baron, and their successors respectively, 
 shall continue to be appointed to the same re- 
 spective offices, with the same precedence, and by 
 the same respective titles, and in the same manner 
 respectively as heretofore. Every Judge who 
 shall be appointed to fill the place of any other 
 Judge of the said High Court of Justice shall be 
 styled in his appointment, " Judge of Her 
 Majesty's High Court of Justice," and shall be 
 appointed in the same manner in which the 
 Puisne Justice and Junior Barons of the Superior 
 Courts of Common Law have been heretofore 
 
 appointed I Provided always, that if at the commencement of this Act 
 tl/e 'itumli'.r of Puisne Justices and Junior Barons who shall become Judges of 
 the said High Court shall exceed twelve in the whole, no neiv Judge of the 
 said High Court shall be appointed in the place of any such Puisne Justice 
 or Jt't/ior Baron who shall die or resign while such whole number shall 
 exceed twelve, it being intended that the permanent number of Judges of 
 the said High Court shall not exceed ttoenty-onc. 
 
 All the Judges of the said Court shall have in 
 all respects, save as in this Act is otherwise ex- 
 pressly provided, equal power, authority, and 
 jurisdiction, and shall be addressed in the manner 
 which is now customary in addressing the Judges 
 of the Superior Courts of Common Law. 
 
 The Lord Chief Justice of England for the time
 
 8 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 being shall be President of the said High Court 
 of Justice in the absence of the Lord Chancellor. 
 
 There are two curious errata in this section : the 
 words in the proviso to the second paragraph " the per- 
 manent number of Judges of the said High Court," 
 having been inserted by mistake for " the number of 
 permanent Judges of the said High Court." This mis- 
 take was corrected by section 3 of the Amending Act, as 
 originally framed. 
 
 In the first paragraph of the present section, again, there 
 are twenty-two Judges enumerated, including the Lord 
 Chancellor, while, in the second paragraph the intention 
 of the Legislature is stated to be that the total number 
 of Judges " shall not exceed twenty-one ! " Section 3 of 
 the Amending Act, as originally framed, set this light by 
 stating, that in the construction of section 5 of the principal 
 Act, the Lord Chancellor should be " deemed to be [a] 
 permanent Judge of the High Court." 
 
 The 3rd section of the Amending Act was subsequently 
 altered, in deference to the feeling of the House of Com- 
 mons, into a simple repeal of the proviso to the second 
 paragraph of the present section, with the addition of a 
 statement to the effect that " the Lord Chancellor shall not 
 be deemed to be a permanent Judge of the High Court, 
 and the provisions of the said section relating to the ap- 
 pointment and style of the Judges of the said High Court 
 shall not apply to the Lord Chancellor."* 
 
 It will be perceived that " the Judge of the High Court 
 of Admiralty " is made a Judge of the High Court of 
 Justice by the present section. The 8th section of the 
 Amending Act, after pointing out that the Judge of the 
 High Court of Admiralty is " inferior in position, as to 
 salary and pension," to the other puisne common law 
 Judges, places him on the same footing with them in these 
 respects, on condition that he signify to the Lord 
 
 * It would have been neater to have included the repeal of the proviso 
 in the second Schedule to the Amending Act, and the writer would have 
 moved to leave it out here and to include it there, if there had been a day's 
 interval between the Committee and the Report of the Bill.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 9 
 
 Chancellor, in writing, before the commencement of the 
 Act, his willingness to relinquish the " ecclesiastical and 
 other offices " which he holds in addition to the office of 
 Judge of Admiralty, and resign " all other offices of emolu- 
 ment," accordingly, before the same date. 
 
 SECTION 6. Constitution of Court of Appeal. 
 
 9. Her Majesty's Court of Appeal shall be constituted as follows : There 
 shall be Jive ex officio Judges thereof, and also so many Ordinary Judges (not 
 exceeding nine at any one time) as Her Majesty shall from time to time appoint. 
 The ex officio Judges shall be the Lord Chancellor, the Lord Chief Justice of 
 England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, 
 and the Lord Chief Baron of Exchequer. The first Ordinary Judges of the 
 said Court shall be the existing Lords Justices of Appeal in Chancery, the 
 existing salaried Judges of the Judicial Committee of Her Majesty's Privy 
 Council, appointed under the " Judicial Committee Act, 1871," and such three 
 other persons as Her Majesty may be pleased to appoint by Letters Patent : 
 such appointment may be made either within one month before or at any time 
 after the day appointed for the commencement of this Act, but if made before 
 shall take effect at the commencement of this Act. 
 
 Besides the said ex officio Judges and Ordinary Judges, it shall be lawful for 
 Her Majesty (if she shall think fit) , from time to time to appoint, under Her 
 Royal Sign Manual, as Additional Judges of the Court of Appeal, any persons 
 who, having held in England the office of a Judge of the Superior Courts of 
 Westminster hereby united and consolidated, or of Her Majesty's Supreme 
 Court hereby constituted, or in Scotland the office of Lord Justice General or 
 Lord Justice Clerk, or in Ireland the office of Lord Chancellor or Lord Justice 
 of Appeal, or in India the office of Chief Justice of the High Court of Judica- 
 ture at Fort William in Bengal, or Madras, or Bombay, shall respectively 
 signify in writing their willingness to serve as such Additional Judges in the 
 Court of Appeal. No such Additional Judge shall be deemed to have under- 
 taken the duty of sitting in the Court of Appeal when prevented from so doing 
 by attendance in the House of Lords, or on the discharge of any other public 
 duty, or by any other reasonable impediment. 
 
 The Ordinary and Additional Judges of the Court of Appeal shall be styled 
 Lords Justices of Appeal. All the Judges of the said Court shall have, in 
 all respects, save as in this Act is otherwise expressly mentioned, equal power, 
 authority and jurisdiction. 
 
 Whenever the office of an Ordinary Judge of the Court of Appeal becomes 
 rncr/nt, a new Judge may be appointed thereto by Her Majesty by Letters 
 Patent. 
 
 The Lord Chancellor for the time being shall be President of the Court 
 of Appeal.
 
 10 SUPREME COUNT OF JUDICATURE ACT, 1873. 
 
 This section is repealed \)j the Supreme Court of Judi- 
 cature Act, 1875, section 33, and the second Schedule to 
 that Act. The substituted provisions will be found in. 
 section 4 of the Amending Act. 
 
 A severe controversy long raged round the important 
 question whether there should be one Court of Appeal 
 only, or two an intermediate Court of Appeal and a 
 final Court of Appeal. The question may now be con- 
 sidered to have been decided in favour of a double appeal. 
 In 1873, Lord Cairns expressed himself as follows on this 
 question : 
 
 " It is extremely plausible to say that there shall be 
 only one appeal, but / doubt whether the principle is quite 
 sound. Great injustice may be done if the single appeal 
 is insisted on; and it must not be forgotten that a third 
 Court has great advantages over a first Appeal Court. 
 The arguments to be submitted to it are more matured 
 and better understood, and the judgments of the judges 
 can be considered side by side, and can be corrected. I 
 am not ignorant of the danger of multiplying appeals ; 
 but my objection is that you may go too far in the opposite 
 direction." : 
 
 SECTION 7. Vacancies by resignation of 
 Judges and effect of vacancies generally. 
 
 The office of any Judge of the said High Court 
 of Justice, or of the said Court of Appeal, may 
 be vacated by resignation in writing, under his 
 hand, addressed to the Lord Chancellor, without 
 any -deed of surrender; and the office of any 
 Judge of the said High Court shall be vacated by 
 his being appointed a judge of the said Court of 
 Appeal. The said Courts respectively shall be 
 deemed to be duly constituted during and not- 
 
 * Hansard's Parliamentary Debates, New Series, vol. 214, p. 364.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 11 
 
 withstanding any vacancy in the office of any 
 Judge of either of such Courts. 
 
 SECTION 8. Qualification* of Judges. Not 
 required to be Serjeants-at-Law. 
 
 Any barrister of not less than ten years' standing 
 shall be qualified to be appointed a Judge of the 
 said High Court of Justice ; and any person who if 
 this Act had not passed would have been qualified 
 by law to bo appointed a Lord Justice of the 
 Court of Appeal in Chancery, or has been a Judge 
 of the High Court of Justice of not less than one 
 year's standing, shall be qualified to be appointed 
 an ordinary Judge of the said Court of Appeal : 
 Provided, that no person appointed a Judge of 
 either of the said Courts shall henceforth be 
 required to take, or to have taken, the degree of 
 Serjeant-at-Law. 
 
 By s. I of the 14 & 15 Yict., c. 83, the qualification of a 
 Lord Justice is stated to be " the being or having been a 
 barrister of fifteen years' standing." 
 
 A curious result of the Judges ceasing to take the degree 
 of the coif is that they will continue, after their appoint- 
 ment, to be members of their respective Inns of Court, 
 instead of becoming, as heretofore, members of Serjeants' 
 Inn ; and if they are not only members, but also benchers, of 
 their respective Inns of Court, they will hear appeals, as 
 Judges, from their own decisions as benchers. 
 
 SECTION 9. Tenure of office of Judges, and oaths 
 of office. Judges not to sit in the House of 
 Commons. 
 
 All the Judges of the High Court of Justice, and of the Court o 
 respectively, shall hold their offices for life, subject to a power of removal ity Her
 
 12 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Majesty, on an Address presented to Her Majesty by both Houses of Parliament. 
 No Judge of either of the said Courts shall be capable of being elected to or of 
 sitting in the House of Commons. Every Judge of either of the said Courts 
 (other than the Lord Chancellor) when he enters on the execution of his 
 office, shall take, in the presence of the Lord Chancellor, the oath of 
 allegiance, and judicial oath as defined by the Promissory Oaths Act, 1868. 
 The oaths to be taken by the Lord Chancellor shall be the same as heretofore. 
 
 This section is repealed by the Supreme Court of Judi- 
 cature Act, 1875, section 33, and the second Schedule to 
 that Act. The substituted provisions will be found in the 
 5th section of the Supreme Court of Judicature Act, 1875. 
 The repealed section of this Act is re-enacted, with the 
 exception of the words " for life," which are omitted and 
 replaced by the words " during good behaviour." 
 
 SECTION 10. Precedence of Judges. 
 
 The ex officio Judges of the Court of Appeal shall rank in the Supreme 
 Court in the order of their present respective official precedence. The other 
 Judges (whether Ordinary or Additional) of the Court of Appeal shall rank 
 in the Supreme Court, if Peers or Privy Councillors, in the order of their 
 respective precedence ; and the rest of the Judges of the Court of Appeal shall 
 rank according to the priority of their respective appointments to be Judges 
 thereof. 
 
 The Judges of the High Court of Justice, who are not also Judges of the 
 Court of Appeal, shall rank next after the Judges of the Court of Appeal, and 
 among themselves (subject to the provisions hereinafter contained as to existing 
 JudgesJ, according to the priority of their respective appointments. 
 
 This section is repealed by the Supreme Court of Judi- 
 cature Act, 1875, section 33, and the second Schedule to 
 that Act. The substituted provisions will be found in the 
 6th section of the Amending Act, in which the provisions 
 applicable only to the " Additional Judges " are omitted. 
 
 SECTION 11. A saving of rights and obligations 
 
 of existing Judges. 
 
 Every existing Judge, who is by this Act made 
 a Judge of the High. Court of Justice or an 
 ordinary Judge of the Court of Appeal shall, as 
 to tenure of office, rank, title, salary, pension,
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 13 
 
 patronage, and powers of appointment or dis- 
 missal, and all other privileges and disqualifica- 
 tions, remain in the same condition as if this Act 
 had not passed; and, subject to the change 
 effected in their jurisdiction and duties by or in 
 pursuance of the provisions of this Act, each of 
 the said existing Judges shall be capable of 
 performing and liable to perform all duties which 
 he would have been capable of performing or 
 liable to perform in pursuance of any Act of 
 Parliament, law, or custom if this Act had not 
 passed. No Judge appointed before the passing 
 of this Act shall be required to act under any 
 Commission of Assize, Nisi Prius, Oyer and 
 Terminer, or Gaol Delivery, unless he was so 
 liable by usage or custom at the commencement 
 of this Act. 
 
 Service as a Judge in the High ; Court of 
 Justice, or in the Court of Appeal, shall, in the 
 case of an existing Judge, for the purpose of 
 determining the length of service entitling such 
 Judge to a pension on his retirement, be deemed 
 to be a continuation of his service in the Court of 
 which he is a Judge at the time of the commence- 
 ment of this Act. 
 
 This is one of the transition clauses of this Act. 
 
 The 8th section of the Amending Act, after referring to 
 the 5th section of this Act, and reciting the first paragraph 
 of this section, places the Judge of the High Court of 
 Admiralty on the same footing " as to salary and pension" 
 as " the other puisne Judges of the Superior Courts of 
 Common Law," on condition that he resign " before the
 
 14 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 commencement of- this Act all other offices of emolu- 
 ment which he holds in addition to the office of Judge 
 of the High Court of Admiralty." If he comply with this 
 condition, his service is to be " reckoned in the same man- 
 ner as if the High Court of Justice had been established 
 at the time of his accepting the office of Judge of the 
 High Court of Admiralty, and he had continued for such 
 time to be a Judge of the High Court of Justice." 
 
 SECTION 12. Provisions for extraordinary duties 
 of Judges of the former Courts. 
 
 If, in aiiy case not expressly provided for by 
 this Act, a liability to any duty, or any autho- 
 rity or power, not incident to the adminis- 
 tration of justice in any Court, whose jurisdiction 
 is transferred by this Act to the High Court of 
 Justice, shall have been imposed or conferred by 
 any statute, law, or custom upon the Judges or 
 any Judge of any such Courts, save as hereinafter 
 mentioned, every Judge of the said High Court 
 shall be capable of performing and exercising, 
 and shall be liable to perform and empowered to 
 exercise every such duty, authority, and power, 
 in the same manner as if this Act had not passed, 
 and as if he had been duly appointed the successor 
 of a Judge liable to such duty, or possessing such 
 authority or power, before the passing of this Act. 
 Any such duty, authority, or power, imposed or 
 conferred by any statute, law, or custom, in any 
 such case as aforesaid, upon the Lord Chancellor, 
 the Lord Chief Justice of England, the Master of 
 the Rolls, the Lord Chief Justice of the Common.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 15 
 
 Pleas, or the Lord Chief Baron, shall continue to 
 be performed and exercised by them respectively, 
 and by their respective successors, in the same 
 manner as if this Act had not passed. 
 This is one of the transition clauses of this Act. 
 
 SECTION 13. Salaries of future Judges. 
 Subject to the provisions in this Act contained 
 with respect to existing Judges, there shall be 
 paid the following salaries, which shall in each 
 case include any pension granted in respect of any 
 public office previously filled by him, to which the 
 Judge may be entitled : 
 
 To the Lord Chancellor, the sums hitherto 
 
 payable to him ; 
 
 To the Lord Chief Justice of England, the 
 Master of the Rolls, the Lord Chief Justice 
 of the Common Pleas, and the Lord Chief 
 Baron of the Exchequer, the same annual 
 sums which the holders of those offices 
 now respectively receive ; 
 
 To each of the Ordinary Judges of the Court of 
 
 Appeal; and, 
 To each of the other Judges of the High Court 
 
 of Justice, the sum of five thousand pounds 
 
 a-year. 
 
 No salary shall be payable to any Additio>iftlJi<dge of the Court of Appeal 
 appointed under this Act; but nothing in this Act shM in any iv ay prejudice 
 the right of any such Additional Judge to any pension to which he may be by 
 law entitled. 
 
 Section 33 of the Supreme Court of Judicature Act,
 
 16 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 1875, and the second Schedule to that Act, repeal so much 
 of this section as relates to Additional Judges of the Court 
 of Appeal. The salary of the Lord Chancellor is fixed at 
 10,000; of the Chief Justice of England at 8,000 ; of 
 the Master of the Rolls at 6,000 ; of the Chief Justice of 
 the Common Pleas at 7,000 ; and of the Chief Baron at 
 7,000. 5,000 is the salary of a puisne Judge. 
 
 See, as to Judges' salaries, 14 and 15 Viet., c. 41 (amend- 
 ing 2 and 3 Will. IV., c. 116), and 14 and 15 Viet., c. 83. 
 
 SECTION 14. Retiring pensions of future Judges 
 of Sigh Court of Justice, and ordinary 
 Judges of Court of Appeal. 
 
 Her Majesty may, by Letters Patent, grant to 
 any Judge of the High Court of Justice, or to any 
 Ordinary Judge of the Court of Appeal who has 
 served for fifteen years as a Judge in such Courts, 
 or either of them, or who is disabled by permanent 
 infirmity from the performance of the duties of 
 his office, a pension, by way of annuity, to be 
 continued during his life : 
 
 In the case of the Lord Chief Justice of England, 
 the Master of the Rolls, the Lord Chief 
 Justice of the Common Pleas, and the 
 Lord Chief Baron of the Exchequer, the 
 same amount of pension which at present 
 might under the same circumstances be 
 granted to the holder of the same office : 
 In the case of any ordinary Judge of the Court 
 of Appeal or any other Judge of the High 
 Court of Justice, the same amount of 
 pension which at present^might under the
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 17 
 
 same circumstances be granted to a puisne 
 Justice of the Court of Queen's Bench. 
 
 The pension payable to the Chief Justice of England is 
 4,000 ; to the Master of the Kolls 3,750 ; to the Chief 
 Justice of the Common Pleas, 3,750 ; to the Chief 
 Baron, 3,750 ; and to a puisne Judge, 3,500. See 
 39 Geo. III., c. 110, s. 7 ; 53 Geo. III., c. 153, s. 1 ; and 
 6 Geo. IV., cc. 82, 83, 84. 
 
 SECTION 15. Salaries andPensions how to Repaid. 
 
 Subject to the provisions in this Act contained 
 with respect to existing Judges, the salaries, 
 allowances, and pensions payable to the Judges 
 of the High Court of Justice, and the Ordinary 
 Judges of the Court of Appeal respectively, shall 
 be charged on and paid out of the Consolidated 
 Fund of the United Kingdom of Great Britain 
 and Ireland, or the growing produce thereof; 
 such salaries and pensions shall grow due from 
 day to day, but shall be payable to the persons 
 entitled thereto, or to their executors or adminis- 
 trators, on the usual quarterly days of payment, 
 or at such other periods in every year as the 
 Treasury may from time to time determine. 
 
 This section is copied from the Stat. 39 Geo. III., 
 c. 100, s. 7. 
 
 PART II. 
 
 JURISDICTION AND LAW. 
 SECTION 16. Jurisdiction of High Court of Justice. 
 
 The High Court of Justice shall be a Superior 
 
 2
 
 18 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Court of Record, and, subject as in this Act 
 mentioned, there shall be transferred to and vested 
 in the said High Court of Justice the jurisdiction 
 which, at the commencement of this Act, was 
 Tested in, or capable of being exercised by, all 
 or any of the Courts following : (that is to say), 
 (1.) The High Court of Chancery, as a Common 
 Law Court as well as a Court of Equity, 
 including the jurisdiction of the Master of 
 the Rolls, as a Judge or Master of the 
 Court of Chancery, and any jurisdiction 
 exercised by him in relation to the Court 
 of Chancery as a Common Law Court ; 
 (2.) The Court of Queen's Bench ; 
 (3.) The Court of Common Pleas at West- 
 minster ; 
 
 (4.) The Court of Exchequer, as a Court of 
 Revenue, as well as a Common Law Court ; 
 (5.) The High Court of Admiralty ; 
 (6.) The Court of Probate ; 
 (7.) The Court for Divorce and Matrimonial 
 Causes ; 
 
 (8.) The London Court of Bankruptcy. 
 
 (9.) The Court of Common Pleas at Lancaster ; 
 (10.) The Court of Pleas at Durham ; 
 (11.) The Courts created by Commission of 
 Assize, of Oyer and Terminer, and of Gaol 
 Delivery, or any of such Commissions : 
 The jurisdiction by this Act transferred to the 
 High Court of Justice shall include (subject to
 
 SLTllEME COU11T Ol' JUDICATURE ACT, 1S73. 1[) 
 
 the exceptions hereinafter contained) the juris- 
 diction which, at the commencement of this Act, 
 was vested in, or capable of heing exercised hy, 
 all or any one or more of the Judges of the said 
 Courts respectively, sitting in Court or Chambers, 
 or elsewhere, when acting as Judges or a Judge, 
 in pursuance of any statute, law, or custom, and 
 all powers given to any such Court, or to any 
 such Judges or Judge, by any statute ; and also 
 all ministerial powers, duties, and authorities, 
 incident to any and to every part of the jurisdic- 
 tions so transferred. 
 
 "Subject to the exceptions hereinafter contained." See 
 ss. 49 and 50, infra. 
 
 Section 33 of the Supreme Court of Judicature Act, 
 1875, and the Schedule to that Act, repeal so much of this 
 section as relates to the London Court of Bankruptcy. 
 See also section 3, supra, and section 34, infra, of this Act. 
 The substituted provisions will be found in section 9 of the 
 Amending Act. 
 
 SECTION 17. Jurisdiction not transferred to 
 
 High Court. 
 
 There shall not be transferred to or vested in the 
 
 said High Court of Justice, by virtue of this Act, 
 
 (1.) Any appellate jurisdiction of the Court of 
 
 Appeal in Chancery, or of the same Court 
 
 sitting as a Court of Appeal in Bankruptcy : 
 
 (2.) Any jurisdiction of the Court of Appeal 
 
 in Chancery of the County Palatine of 
 
 Lancaster : 
 
 (3.) Any jurisdiction usually vested in the 
 
 Chancellor, or in the Lords Justices of .Appeal in
 
 20 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Chancery, or either of them, in relation to the CUStodj 
 
 of the person and estates of idiots, lunatics, 
 and persons of unsound mind : 
 
 (4.) Any jurisdiction vested in the Lord Chan- 
 cellor in relation to grants of Letters 
 Patent, or the issue of commissions or 
 other writings, to be passed under the 
 Great Seal of the United Kingdom : 
 
 (5.) Any jurisdiction exercised by the Lord 
 Chancellor in right of or on behalf of Her 
 Majesty as visitor of any College, or of any 
 charitable or other foundation : 
 
 (6.) Any jurisdiction of the Master of the 
 Rolls in relation to records in London or 
 elsewhere in England. 
 
 See, as to subsections 1 and 2, the next section of this 
 Act, subsections 1 and 2. 
 
 Although by sections 9 and 33, and the second 
 Schedule of the Amending Act of 1875, the London Court 
 of Bankruptcy is severed from the High Court of Justice, 
 sub-section 2 of section 9 of that Act expressly pro- 
 vides that " appeals from the London Court of Bankruptcy 
 shall lie to the Court of Appeal, as provided by the Prin- 
 cipal Act" i.e., by the present section of it. (See 
 section 18 of the Amending Act as to Rules and Orders 
 of Court in force " in relation to appeals from the Chief 
 Judge in Bankruptcy, or from the Court of Appeal in 
 Chancery in Bankruptcy matters.") 
 
 As to subsection (3), see s. 7 of the Amending Act. 
 
 SECTION 18. Jurisdiction transferred to 
 
 Court of Appeal. 
 
 The Court of Appeal established by this Act 
 shall be a Superior Court of Record, and there
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 21 
 
 shall be transferred to and vested in such Court 
 all jurisdiction and powers of the Courts follow- 
 ing : (that is to say), 
 
 (1.) All jurisdiction and powers of the Lord 
 Chancellor and of the Court of Appeal in 
 Chancery, in the exercise of his and its- 
 appellate jurisdiction, and of the same 
 Court as a Court of Appeal in Bankruptcy : 
 (2.) All jurisdiction and powers of the Court 
 of Appeal in Chancery of the county pala- 
 tine of Lancaster, and all jurisdiction and 
 powers of the Chancellor of the duchy and 
 county palatine of Lancaster when sitting 
 alone or apart from the Lords Justices of 
 Appeal in Chancery as a Judge of re- 
 hearing or appeal from decrees or orders 
 of the Court of Chancery of the county 
 palatine of Lancaster : 
 
 (3.) All jurisdiction and powers of the Court 
 of the Lord Warden of the Stannaries 
 assisted hy his assessors, including all juris- 
 diction and powers of the said Lord Warden 
 when sitting in his capacity of Judge : 
 (4.) All jurisdiction and powers of the Court of 
 
 Exchequer Chamber : 
 
 (5.) All jurisdiction vested in or capable of 
 being exercised by Her Majesty in Council, 
 or the Judicial Committee of Her Majesty's 
 Privy Council, upon appeal from any 
 judgment or order of the High Court of
 
 22 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Admiralty, or from any order in lunacy 
 made by the Lord Chancellor, or any other 
 person having jurisdiction in lunacy. 
 
 The 9th section of the Amending Act severs the Lon- 
 don Court of Bankruptcy from the High Court of Justice ; 
 but it at the same time provides that " the appeal from 
 the London Court of Bankruptcy shall lie to the Court of 
 Appeal in accordance with the Principal Act." 
 
 (3). Error did not lie to the Superior Courts from the 
 Vice-Warden ; but by 18 and 19 Viet, c. 32, s. 26, from all 
 decrees and orders of the Yice- Warden on the ' Equity side 
 of this Court, and from all judgments of the Vice-Warden 
 on the Common Law side thereof, there was an appeal to 
 the Lord Warden (assisted by two or more assessors, 
 members of the Judicial Committee of the Privy Council, 
 or Judges of the High Court of Chancery, or Courts of 
 Common Law at Westminster), and from the Lord 
 Warden, a final appeal to the Judicial Committee. 
 
 As to subsection (5), see s. 2 of the Amending Act. 
 
 SECTION 19. Appeals from High Court. 
 
 The said Court of Appeal shall have jurisdic- 
 tion and power to hear and determine Appeals 
 from any judgment or order, save as hereinafter 
 mentioned, of Her Majesty's High Court of Jiis- 
 tice, or of any Judges or Judge thereof, subject 
 to the provisions of this Act, and to such Rules 
 and Orders of Court for regulating the terms and 
 conditions on which such Appeals shall be 
 allowed, as may be made pursuant to this Act. 
 
 I r or all the purposes of and incidental to the 
 hearing and determination of any Appeal within its 
 jurisdiction, and the amendment, execution, and 
 enforcement of any judgment or order made on
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 23 
 
 any sucli Appeal, and for the purpose of every 
 other authority expressly given to the Court of 
 Appeal by this Act, the said Court of Appeal 
 shall have all the power, authority, and jurisdic- 
 tion by this Act vested in the High Court of 
 Justice. 
 
 "Save as hereinafter mentioned," see ss. 47, 48, 49. 
 and 50, infra. 
 
 The Rules of Court relating to Appeals will be found in 
 Order 58 of the first Schedule to the Supreme Court o 
 Judicature Act, 1875. 
 
 SECTION 20. No appeal from High Court or 
 Court of Appeal to Souse of Lords or Judicial 
 Committee. 
 
 No error or appeal shall be brought from any judgment or order of the 
 lliijh Court of Justice, or of the Court of Appeal, nor from any judgment or 
 order, subsequent to the commencement of this Act, of the Court of Chan- 
 cery of the county palatine of Lancaster, to the House of Lords or to the 
 Judicial Committee of Her Majesty's Privy Council ; but nothing in this Act 
 nhiill prejudice any right existing at the commencement of this Act to prose- 
 cute any pending -writ of error or appeal, or to bring error or appeal to the 
 House of Lords or to Her Majesty in Councilor to the Judicial Committee 
 of the Privy Council, from any prior judgment or order of any Court whose 
 jurisdiction is hereby transferred to the High Court of Justice or to the 
 Court of Appeal. 
 
 The operation of this section is suspended until the 
 first day of November, 1876, by the second section of 
 the Supreme Court of Judicature Act, 1875, and the 
 section itself will probably be repealed in the Session of 
 1876, when the constitution of the Final Court of Appeal 
 is to be permanently and definitively settled. 
 
 It has been so frequently stated that this clause passed 
 unchallenged in the House of Commons in 1873 that it 
 may not" be out of place here to state that a division, in 
 which the writer acted as " teller," took place upon the 
 clause in the Committee on the Bill in the House of
 
 24 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Commons on the 3rd of July, 1873. The numbers were, 
 for the clause 154; against, 93.* 
 
 In the minority the names of 14 members of the 
 present Government will be found recorded, and also the 
 name of the present Chairman of Committees. It is only 
 fair to the present Government that this fact should be 
 thus prominently noticed. In the face of the remarkable 
 movement in favour of preserving the Appellate Juris- 
 diction of the House of Lords, which developed itself 
 so rapidly and simultaneously in the legal profession 
 and in both Houses of Parliament, it would have been 
 a mere waste of time for the Government to have 
 attempted to force this clause on the Legislature. The 
 most natural course would have been to repeal it. By 
 way of conciliating, however, the authors of the clause, 
 the Government proposed that it should be simply sus- 
 pended for a year, and this was accepted on all sides as a 
 reasonable compromise. 
 
 SECTION 21. Power to transfer jurisdiction of 
 Judicial Committee by Order in Council. 
 
 It shall be lawful for Her Majesty, if she shall think Jit, at any time here- 
 after, by Order in Council to direct that all Appeals and Petitions whatsoever 
 to Her Majesty in Council which according to the laws now in force ought to 
 be heard by or before the Judicial Committee of Her Majesty's Privy Council, 
 shall from and after a time to be fixed by such Order, be referred for hearing 
 to and be heard by Her Majesty's Court of Appeal ; and from and after the 
 time fixed by such Order, all such Appeals and Petitions shall be referred for 
 hearing to and be heard by the said Court of Appeal accordingly, and shall 
 not be heard by the said Judicial Committee ; and for all the purposes of and 
 incidental to the hearing of such Appeals or Petitions, and the reports to be 
 made to Her Majesty thereon, and all orders thereon to be afterwards made by 
 Her Majesty in Council, and also for all purposes of and incidental to the 
 enforcement of any such Orders as may be made by the said Court of Appeal 
 or by Her Majesty, pursuant to this section (but not for any other purpose^, 
 all the power, authority, and jurisdiction now by law vested in the said 
 Judicial Committee shall be transferred to and vested in the said Court of 
 Appeal. 
 
 The Court of Appeal, when hearing any appeals in Ecclesiastical Causes 
 which may be referred to it in manner aforesaid, shall be constituted of such 
 
 * Hansard's Parliamentary Debates, New Series, vol. 216, p. ],7-3tj.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 25 
 
 and so many of the Judges thereof, and shall be assisted bij such assessors 
 being Archbishops or Bishops of the Church of England, as Her Majesty, by 
 any General Hides made with the advice of the Judges of the said Court, or 
 any Jive of them (of whom the Lord Chancellor shall be one'), and of the 
 Archbishops and Bishops who are members of Her Majesty's Privy Council, 
 or any two of them (and which General Rules shall be made by Order in 
 Councif), may think Jit to direct: Provided that such rules shall be laid before 
 eachHouse of Parliament within forty days of the making of the same, if Parlia- 
 ment be then sitting, or if not, then within forty days of the commencement 
 of the then next ensuing session; and if an address is presented to Her 
 Majesty by either House of Parliament within the next subsequent forty days 
 on which the said House shall have sat, praying that any such rules may be 
 annulled, Her Majesty may thereupon by Order in Council annul the same ; 
 and the rules so annulled shall thenceforth become void and of no effect, but 
 without prejudice to the validity of any proceedings which may in the mean- 
 time have been taken under the same. 
 
 The operation of this section is, like that of the last, 
 suspended until the first day of November, 1876, by the 
 second section of the Supreme Court of Judicature Act, 
 1875. 
 
 SECTION 22. Transfer of pending business. 
 
 From and after the commencement of this Act 
 the several jurisdictions which by this Act are 
 transferred to and vested in the said High Court 
 of Justice and the said Court of Appeal respec- 
 tively, shall cease to be exercised, except by the 
 said High Court of Justice and the said Court of 
 Appeal respectively, as provided by this Act, and 
 no further or other appointment of any Judge to 
 any Court whose jurisdiction is so transferred shall 
 be made except as provided by this Act : Pro- 
 vided, that in all causes, matters and proceedings 
 whatsoever which shall have been fully heard, 
 and in which judgment shall not have been given, 
 or having been given shall not have been signed, 
 drawn up, passed, entered, or otherwise per-
 
 26 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 fected at the time appointed for the commence- 
 ment of this Act, such judgment, decree, rule, or 
 order may be given or made, signed, drawn up, 
 passed, , entered, or perfected respectively, after 
 the commencement of this Act, in the name of 
 the same Court, and by the same judge and 
 officers, and generally in the same manner, in all 
 respects, as if this Act had not passed ; and the 
 same shall take effect, to all intents and purposes, 
 as if the same had been duly perfected before the 
 commencement of this Act ; and every judgment, 
 decree, rule, or order of any Court whose jurisdic- 
 tion is hereby transferred to the said High Court 
 of Justice or the said Court of Appeal, which shall 
 have been duly perfected at any time before the 
 commencement of .this Act, may be executed and 
 enforced, and, if necessary, amended or discharged, 
 by the said High Court of Justice and the said 
 Court of Appeal respectively, in the same manner 
 as if it had been a judgment, decree, rule, or order 
 of the said High Court or of the said Court of 
 Appeal ; and all causes, matters, and proceedings 
 whatsoever, whether Civil or Criminal, which 
 shall be pending in any of the Courts whose 
 jurisdiction is so transferred as aforesaid at the 
 commencement of this Act, shall be continued 
 and concluded, as follows (that is to say), in the 
 case of proceedings in Error on Appeal, or of 
 proceedings before the Court of Appeal in 
 Chancery in and before Her Majesty's Court of 
 Appeal ; and, as to all other proceedings, in and
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 27 
 
 before Her Majesty's High. Court of Justice. The 
 said Courts respectively shall have the same 
 jurisdiction in relation to all such causes, matters, 
 and proceedings as if the same had been com- 
 menced in the said High Court of Justice, and 
 continued therein (or in the said Court of Appeal, 
 as the case may be) down to the point at which 
 the transfer takes place ; and, so far as relates to 
 the form and manner of procedure such causes, 
 matters, and proceedings, or any of them, may be 
 continued and concluded, in and before the said 
 Courts respectively, either in the same or the like 
 manner as they would have been continued and 
 concluded in the respective Courts from which 
 they shall have been transferred as aforesaid, or 
 according to the ordinary course of the said High. 
 Court of Justice and the said Court of Appeal 
 respectively (so far as the same may be applicable 
 thereto), as the said Courts respectively may think 
 fit to direct. 
 
 This is one of the transition clauses of this Act. 
 
 SECTION 23. Rules as to exercise of jurisdiction. 
 The jurisdiction by this Act transferred to the 
 said High Court of Justice and the said Court of 
 Appeal respectively shall be exercised (so far as 
 regards procedure and practice) in the manner 
 provided by this Act, or by such Rules and 
 Orders of Court as may be made pursuant to this 
 Act ; and where no special provision is contained 
 in this Act or anv such Rules or Orders of Court
 
 28 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 with reference thereto, it shall be exercised as 
 nearly as may be in the same manner as the same 
 might have been exercised by the respective 
 Courts from which such jurisdiction shall have 
 been transferred, or by any of such Courts. 
 This is one of the transition clauses of this Act. 
 
 SECTION 24. Laic and Equity to be concurrently 
 
 administered. 
 
 In every civil cause or matter commenced in 
 the High Court of Justice law and equity shall be 
 administered by the High Court of Justice and 
 the Court of Appeal respectively, according to the 
 rules following : 
 
 (1.) If any plaintiff or petitioner claims to be 
 entitled to any equitable estate or right, or 
 to relief upon any equitable ground against 
 any deed, instrument, or contract, or 
 against any right, title, or claim whatso- 
 ever asserted by any defendant or re- 
 spondent in such cause or matter, or to 
 any relief founded upon a legal right, 
 which heretofore could only have been 
 given by a Court of Equity, the said 
 Courts respectively, and every Judge 
 thereof, shall give to such plaintiff or 
 petitioner such and the same relief as 
 ought to have been given by the Court of 
 Chancery in a suit or proceeding for the 
 same or the like purpose properly insti- 
 tuted before the passing of this Act.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 29 
 
 (2.) If any defendant claims to be entitled to 
 any equitable estate or right, or to relief 
 upon any equitable ground against any 
 deed, instrument, or contract, or against 
 any rigM, title, or claim asserted by any 
 plaintiff or petitioner in sucli cause or 
 matter, or alleges any ground of equitable 
 defence to any claim of the plaintiff or 
 petitioner in such cause or matter, the 
 said Courts respectively, and every Judge 
 thereof, shall give to every equitable estate, 
 right, or ground of relief so claimed, and 
 to every equitable defence so alleged, such 
 and the same effect, by way of defence 
 against the claim of such plaintiff or 
 petitioner, as the Court of Chancery ought 
 to have snven if the same or the like 
 
 O 
 
 matters had been relied on by way of 
 defence in any suit or proceeding instituted 
 in that Court for the same or the like 
 purpose before the passing of this Act. 
 (3.) The said Courts respectively, and every 
 Judge thereof, shall also have power to 
 grant to any defendant in respect of any 
 equitable estate or right, or other matter 
 of equity, and also in respect of any legal 
 estate, right, or title claimed or asserted 
 by him, all such relief against any plaintiff 
 or petitioner as such defendant shall have 
 properly claimed by his pleading, and as 
 the said Courts respectively, or any Judge
 
 30 SUPREME COURT OF JUDICATURE ACT, 187o. 
 
 thereof, might have granted iii any suit 
 instituted for that purpose by the same 
 defendant against the same plaintiff or 
 petitioner ; and also all such relief relating 
 to or connected with the original subject 
 of the cause or matter, and in like manner 
 claimed against any other person, whether 
 already a party to the same cause or matter 
 or not, who shall have been duly served 
 with notice in writing of such claim, pur- 
 suant to any Rule of Court or any Order 
 of the Court as might properly have been 
 granted against such person if he had 
 been made a defendant to a cause duly 
 instituted by the same defendant for the 
 like purpose ; and every person served 
 with any such notice shall thenceforth be 
 deemed a party to such cause or matter, 
 with the same rights in respect of his 
 defence against such claim, as if he had 
 been duly sued in the ordinary way by such 
 defendant. 
 
 (4.) The said Courts respectively, and every 
 Judge thereof, shall recognise and take 
 notice of all equitable estates, titles, and 
 rights, and all equitable duties and liabili- 
 ties appearing incidentally in tbe course 
 oi: any cause or matter, in the same man- 
 ner in which the Court of Chancery would 
 have recognised and taken notice of the 
 same in any suit or proceedmg'duly insti-
 
 SUPREME COURT OF JUDICATURE ACT, 1S73. 31 
 
 tutecl therein before the passing of this 
 Act. 
 
 (5.) No cause or proceeding at any time pend- 
 ing in the High Court of Justice, or "before 
 the Court of Appeal, shall "be restrained 
 by prohibition or injunction; but every 
 matter of equity on which an injunction 
 against the prosecution of any such cause 
 or proceeding might have been obtained 
 if this Act had not passed, either uncon- 
 ditionally or on any terms or conditions, 
 may be relied on by way of defence there- 
 to : Provided always, that nothing in this 
 Act contained shall disable either of the 
 said Courts from directing a stay of pro- 
 ceedings in any cause or matter pending 
 before it, if it shall think fit ; and any per- 
 son, whether a party or not to any such 
 cause or matter, who would have been 
 entitled, if this Act had not passed, to apply 
 to any Court to restrain the prosecution 
 thereof, or who may be entitled to enforce, 
 by attachment or otherwise, any Judg- 
 ment, Decree, Rule, or Order, contrary to 
 which all or any part of the proceedings in 
 such cause or matter may have been taken, 
 shall be at liberty to apply to the said 
 Courts respectively, by motion in a sum- 
 mary way, for a stay of proceedings in such 
 caiise or matter, either generally, or so 
 far as may be necessary for the purposes
 
 32 SUPKEME COURT OF JUDICATURE ACT, 1873. 
 
 of justice ; and the Court shall thereupon 
 make such Order as shall be just. 
 
 (6.) Subject to the aforesaid provisions for 
 giving effect to equitable rights and other 
 matters of equity in manner aforesaid, and 
 to the other express provisions of this Act, 
 the said Courts respectively, and every 
 Judge thereof, shall recognise and give 
 effect to all legal claims and demands, and 
 all estates, titles, rights, duties, obligations, 
 and liabilities existing by the Common Law 
 or by any custom, or created by any Statute, 
 in the same manner as the same would 
 have been recognised and given effect to if 
 this Act had not passed by any of the 
 Courts whose jurisdiction is hereby trans- 
 ferred to the said High Court of Justice. 
 
 (7.) The High Court of Justice and the Court 
 of Appeal respectively, in the exercise of 
 the jurisdiction vested in them by this Act 
 in every cause or matter pending before 
 them respectively, shall have power to 
 grant, and shall grant, either absolutely or 
 on such reasonable terms and conditions 
 as to them shall seem just, all such remedies 
 whatsoever as any of the parties thereto 
 may appear to be entitled to in respect of 
 any and every legal or equitable claim pro- 
 perly brought forward by them respectively 
 in such cause or matter ; so that, as far as 
 
 possible, ALL MATTERS SO IN CONTROVERSY
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 33 
 
 BETWEEN THE SAID PARTIES RESPECTIVELY 
 MAY BE COMPLETELY AND FINALLY DETER- 
 MINED, AND ALL MULTIPLICITY OF LEGAL 
 PROCEEDINGS CONCERNING ANY OF SUCH 
 MATTERS AVOIDED. 
 
 If the closing words of this section be verified by ex- 
 perience, this Act will prove a second Magna Charta to 
 the suitor. Hitherto it has been the boast of the Court of 
 Chancery that it alone of the Superior Courts is competent 
 " completely and finally to determine all matters in con- 
 troversy between the parties." 
 
 Lord Selborne, C., when introducing the present measure > 
 gave this section a very prominent place in his sketch 
 of its provisions. " I hope the measure which I shall 
 lay on the table will contain what your lordships will 
 consider sufficiently clear and precise directions as to 
 the general way in which the legal and equitable jurisdic- 
 tion " (of the Supreme Court) " is to be exercised." He 
 then proceeded to sum up the contents of the present 
 section as follows: "Those directions are given under 
 seven heads : first, the Court in all its branches will give 
 effect to the equitable rights and remedied of plaintiffs : 
 secondly, it will do the same with respect to equitable 
 defences by defendants; thirdly, it will give effect to 
 counter claims of defendants ; fourthly, it will take notice 
 of all equitable rights and liabilities of any persons ap- 
 pearing incidentally in the course of any proceedings ; 
 fifthly, it will stay proceedings, when necessary, by the 
 authority of the Judges before whom an action is pending, 
 and not by injunctions obtained from other Judges; sixthly, 
 it will give effect, subject to all equities, to legal rights 
 and remedies ; and, lastly, it will deal, as far as possible, 
 with all questions in controversy in one and the same suit, 
 so as to do complete justice between the parties, and pre- 
 vent a multiplicity of proceedings." * 
 
 Subsection (1) introduces an entirely new principle into 
 
 * Hansard's Parliamentary Debates, New Series, vol. 214, pp. 33S, 
 339. 
 
 3
 
 34 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 actions in the Queen's Bench, Common Pleas and Exche- 
 quer. Taken literally, indeed, the words would seem to 
 imply that suits in Chancery would be properly cognisable 
 henceforth in these Courts, or rather Divisions of the 
 Supreme Court. A glance, however, at Section 34, infra, 
 will dispel this illusion. Subsection (1) taken in connec- 
 tion with Section 34, can only mean that if, in the course 
 of an action in the Common Law Divisions of the High 
 Court, relative to matters within their exclusive jurisdiction, 
 any equitable claim is advanced by the plaintiff, the Com- 
 mon Law Divisions shall afford the same relief with regard 
 to that particular claim, as the Court of Chancery would 
 have afforded " in a suit for a like purpose." 
 
 Subsection (2) of this section extends the principle 
 already introduced by the Common Law Procedure Act, 
 1854, 17 & 18 Yict., c. 125, s. 83, on the recommendation 
 of the Royal Commission on Procedure at Common Law.* 
 The Courts of Law, however, unfortunately held that a 
 plea was inadmissible as an equitable plea at law, unless it 
 was such as would have been a complete answer in Equity 
 to the plaintiff's claim, and have justified a Court of Equity 
 in granting a perpetual injunction, absolutely and without 
 conditions.! A more liberal view of an " equitable plea " 
 was, however, taken in the recent case of Allen v. Walker 
 L. R. 5 Ex. 187, 191. 
 
 Subsection (3). This subsection gives effect to legal and 
 equitable counter-claims of the defendant. It also intro 
 duces an important feature in the new system of procedure 
 the power of bringing third parties into the action after 
 it has been commenced, and making them co-defendants. 
 Copious instructions as to the method of procedure in such 
 a case will be found in the first Schedule to the Supreme 
 Court of Judicature Act, 1875, Order XYI. (" Parties ")4 
 
 Subsection (4) requires the Judges of the various Divi- 
 sions of the High Court to take judicial notice of equitable 
 
 * As to this enactment, see the notes in the 13th Edition of Roscoe's 
 Nisi Prius, pp. 328-334, and the cases there cited. 
 
 f Mines Royal Co. v. Magnay, 10 Ex., 489 ; Hyde v. Graham, 1 H & C., 
 598. Wood v. Copper Mines Co., 17 C. B., 561 ; Wake v. Samp, 6 H. & N., 
 770. 
 
 j See more especially Rules 17, 18, 19 & 20.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 35 
 
 interests and liabilities, in the same manner as the Court 
 of Chancery would have done, irrespective of any claim 
 made by the plaintiff or defendant. 
 
 Subsection (5). "No cause or proceeding at any time 
 pending in the High Court of Justice, or in the High 
 Court of Appeal, shall be restrained by prohibition or 
 injunction." Lord Coke in a case in 3 Bulstr. 120, Warner 
 v. Sucker-man, lays it down as law that the Court of 
 Queen's Bench may prohibit, not only all inferior Courts, 
 but also the other Superior Courts ; but this doctrine has 
 since been very much controverted, and it has been ex- 
 pressly decided,* that a prohibition will not lie to the 
 Court of Chancery. Prohibition would, however, until the 
 present enactment, have lain to the Court of Admiralty. 
 It will now no longer lie. It will, however, continue to 
 lie to the Ecclesiastical Courts, which are entirely dehors 
 the scope of the Supreme Court of Judicature Acts, 1873 
 and 1875, and will also continue to lie to every inferio? 
 Court in the Kingdom, f 
 
 A writ of injunction by which proceedings at law are 
 restrained is not in the nature of a prohibition. In issuing 
 injunctions Courts of Equity have claimed 'no supremacy 
 overthe ordinary tribunals. An injunction is addressed in per- 
 sonam and is not directed to the Court. A defendant at law 
 has often some equitable defence which a court of law cannot 
 take cognizance of, either from want of jurisdiction or the 
 infirmity of legal process. As it would be against conscience 
 and good faith that the plaintiff at law should use the 
 advantage of which he is thus possessed at law, a Court ot 
 Equity restrained by injunction an action at law where the 
 right sought to be enforced was subservient to an equitable 
 claim that the defendant at law could not set up there. 
 The Court interfered on the principle of preventing a legal 
 right from being enforced in an inequitable manner, and 
 of ensuring that the real question and the whole matter 
 in dispute between the parties might be determined.! 
 Injunctions to stay proceedings at law might be perpetual 
 
 * Comyn's Digest, tit. Prohibition (A). 
 
 t On the subject of Prohibitions, see Mr. Morgan Lloyd's Treatise 
 on the Law of Prohibition, 1849. 
 
 J See Kerr on Injunctions in Equity, p. 13, 14
 
 36 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 or temporary, total or partial, qualified or conditional, and 
 they might be granted at any stage of the proceedings. 
 Thus an injunction was sometimes granted to stay trial ; 
 sometimes after verdict to stay judgment ; sometimes after 
 judgment to stay execution ; sometimes after execution to 
 stay the money in the hands of the sheriff, or the delivery 
 of possession. There was almost an infinite variety of 
 occasions on which injunctions might issue to stay legal 
 proceedings. In general it may be stated that an injunction 
 would issue in all cases where, through accident, fraud, 
 mistake, misrepresentation, inequality of footing between 
 the parties, undue influence, complicated accounts, 
 the existence of an equitable set off, liability to penalties 
 and forfeitures or equitable assignments, it would have 
 been against conscience to proceed in a Court of Common 
 Law.* 
 
 The powers given to Courts of Common Law by the 
 Common Law Procedure Act, 1854, 17 and 18 Viet., c. 
 125, s. 83, to entertain defences by plea upon equitable 
 grounds, did not interfere with the jurisdiction of the Court 
 of Chancery to restrain by injunction actions at law. The 
 powers given by that Act were permissive only, and did not 
 deprive the defendant at law of the right he had before 
 the passing of that Act of going to a Court of Equity and 
 taking the benefit of a defence which he could not avail 
 himself of at Common Law. Although the defendant 
 might have an equitable defence at law, he was not bound 
 to plead it.f 
 
 By subsection (5) of this section the clumsy battery 
 from which Courts of Equity were wont to keep up a 
 raking fire upon plaintiffs at Common Law is dismantled, 
 and its debris are carted away. " No causgjor proceeding at 
 
 4k 
 
 any time pending in the High Court of Justice or^efore 
 the Court of Appeal shall be restrained by injunction ; but 
 every matter of equity on which an injunction against the 
 prosecution of any such cause or proceeding might have been 
 
 * See Story's Commentaries on Equity Jurisprudence, 878-889. 
 
 f Gompertz v. Pooley, 4 Drew. 448 ; Walker v. Mecklethwaite, 1 
 Dr. & Sin., 54 ; Davies v. Stainbank, 6 D. M. and Gr., 696 ; Kingsford 
 v. Stcinford, 28 L. J. (Ch.), 413.
 
 SUPREME COURT OF JUDICATURE ACT, 1873, 37 
 
 obtained if this Act had not passed, either unconditionally 
 or on any terms or conditions, may be relied on by way of 
 defence thereto." The editors of the 13th edition (1875) 
 of Roscoe's " Nisi Prius," say with truth, in a foot note,* 
 that " the Supreme Court of Judicature Act, 1873, section 
 24, much extends the power to set up equitable defences." 
 Subsection (5), however, contains at the end an important 
 proviso, enabling any person to apply by motion, in a 
 summary way, for a stay of proceedings, and empowering 
 the new Courts to direct it. 
 
 As to the principles upon which one branch of the Court 
 will stay its proceedings, on the ground of proceedings com- 
 menced in another branch of the Court, reference may be 
 made to Martin v. Pawning (L. B., 4 Ch., 356), where the 
 Court of Chancery refused (even before the recent Bank- 
 ruptcy Act, 32 & 33 Viet., c. 71, s. 72) to interfere with the 
 administration of a deed registered under the Act of 1861 ; 
 also to Morley t. White (L. E., 8 Ch., 214), where a 
 deceased person's estate, which was being administered in 
 Chancery, having also fallen into the hands of a trustee in 
 bankruptcy, the deceased person having been a partner, 
 and having both joint and separate liabilities, it was held 
 that proceedings must be taken in bankruptcy before the 
 administration in Chancery could go on ; and Lord Justice 
 James said (p. 218) : " It is true that there may be im- 
 portant questions to be determined before it can be ascer- 
 tained how the distribution is to be made ; but the Court of 
 Bankruptcy is armed for that purpose with every power of 
 a Court of Law and a Court of Equity, and there is not a 
 single question stated to us, as an important and difficult 
 question arising in this matter, which cannot be litigated 
 and determined by that Court of Bankruptcy which the 
 legislature has thought to be the* proper tribunal for the 
 determination of it ; and those questions, if decided in 
 Bankruptcy, would come on appeal before the same Court 
 as if they had been determined in Chancery, that is, before 
 the same judges sitting under one name instead of under 
 another. Under these circumstances, I am of opinion that 
 
 Page 394.
 
 38 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 the proper forum to determine every one of these questions 
 is the Court of Bankruptcy." 
 
 If an interpleader suit (the object of which is to pre- 
 vent the holder of money claimed by two persons from 
 being vexed by two suits) is instituted in one branch of the 
 Court, another branch will stay proceedings in respect of 
 the same matter. Prudential Assurance Company v. Thomas 
 (L. R., 3 Ch., 75) is a good example of an interpleader 
 suit.* 
 
 Subsection (6) binds the judges to take judicial notice of 
 legal, customary, and statutory rights, claims and liabilities, 
 but only " subject to the aforesaid provisions for giving effect 
 to equitable rights and other matters in equity." The full 
 meaning of the subordinate position in which the Common 
 Law is placed by the section can only be apprehended by 
 referring to subsection (11) of section 25 " The Rules 
 of Equity shall prevail." This, no doubt, is the domi- 
 nating idea, not merely of this section, but of the whole 
 Act.f 
 
 The student who is desirous of obtaining a comprehensive 
 view of the effect of this section and the next upon the 
 systems of legal and equitable jurisprudence will do well 
 to procure " Equity under the Judicature Act," by Mr. 
 Challoner "W. Chute,t Lecturer to the Incorporated Law 
 Society. 
 
 SECTION 25. Mules of Law upon certain points. 
 
 And whereas it is expedient to take occasion of 
 the union of the several Courts whose jurisdiction 
 is hereby transferred to the said High Court of 
 Justice to amend and declare the Law to be here- 
 after administered in England as to the matters 
 
 * Chute on Equity under the Judicature Act, pp. 160, 161. 
 
 t The marginal note to this section runs, " Law and Equity to be con- 
 currently administered." To fill out its full meaning, however, it is 
 necessary to add, " Provided always, that Law follows Equity, whenever 
 they don't concur." 
 
 J London, Butterworths, 7, Fleet Street, 1874.
 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 39 
 
 next hereinafter mentioned : Be it enacted as 
 follows : 
 
 Administration of Assets of Insolvent Estates. 
 
 (1.) In the administration by the Court of the assets of any person who 
 may die after the passing of this Act, and whose estate may prove to 
 be insufficient for the payment in full of his debts and liabilities, the 
 same rules shall prevail and be observed as to the respective rights of 
 secured and unsecured creditors, and as to debts and liabilities provable, 
 and as to the valuation of annuities and future or contingent liabilities, 
 respectively, as may be in force for the time being under the law of Bank- 
 ruptcy icith respect to the estates of persons adjudged bankrupt ; and 
 all persons who in any such case would be entitled to prove for and 
 receive dividends out of the estate of any such deceased person may come 
 in under the decree or order for the administration of such estate and 
 make such claims against the same as they may respectively be entitled 
 to by virtue of this Aot, 
 
 Statutes of Limitation inapplicable to Express 
 Trusts. 
 
 (2.) No claim of a cestui que trust against his 
 trustee for any property held on an 
 express trust, or in respect of any breach 
 of such trust, shall be held to be barred by 
 any Statute of Limitations. 
 
 Equitable Wastes. 
 
 (3.) An estate for life without impeachment 
 of waste shall not confer or be deemed to 
 have conferred upon t3?.e tenant for life 
 any legal right to commit waste of the 
 description known as equitable waste, 
 unless an intention to confer such right 
 shall expressly appear by the instrument 
 creating such estate.
 
 40 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Merger. 
 
 (4) There shall not, after the commencement 
 of this Act, be any merger by operation of 
 law only of any estate, the beneficial 
 interest in which would not be deemed to 
 be merged or extinguished in equity. 
 
 Suits for Possession of Land by Mortgagors. 
 
 (5.) A mortgagor entitled for the time being 
 to the possession or receipt of the rents 
 and profits of any land as to which no 
 notice of his intention to take possession 
 or to enter into the receipts of the rents 
 and profits thereof shall have been given 
 by the mortgagee, may sue for such pos- 
 session, or for the recovery of such rents 
 or profits, or to prevent or recover damages 
 in respect of any trespass or other wrong 
 relative thereto, in his own name only, 
 unless the cause of action arises upon a 
 lease or other contract made by him 
 jointly with any other person. 
 
 Assignment of Debts and Choses in Action. 
 
 (6.) Any absolute assignment, by writing 
 under the hand of the assignor (not pur- 
 porting to be by way of charge only), ot
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 41 
 
 any debt or other legal chose in action, of 
 which express notice in writing shall have 
 been given to the debtor, trustee, or other 
 person from whom the assignor would have 
 been entitled to receive or claim such debt 
 or chose in action, shall be, and be deemed 
 to have been effectual in law (subject to 
 all equities which would have been entitled 
 to priority over the right of the assignee 
 if this Act had not passed), to pass and 
 transfer the legal right to such debt or 
 chose in action from the date of such 
 notice, and all legal and other remedies 
 for the same, and the power to give a good 
 discharge for the same, without the con- 
 currence of the assignor : Provided always, 
 that if the debtor, trustee, or other person 
 liable in respect of such debt or chose in 
 action shall have had notice that such 
 assignment is disputed by the assignor or 
 any one claiming under him, or of any 
 other opposing or conflicting claims to 
 such debt or chose in action, he shall be 
 entitled, if he think fit, to call upon the 
 several persons making claim thereto to 
 interplead concerning the same, or he may, 
 if he think fit, pay the same into the High 
 Court of Justice under and in conformity 
 with the provisions of the Acts for the 
 relief of trustees.
 
 42 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Stipulations not of the Essence of Contracts. 
 
 (7.) Stipulations in contracts, as to time or 
 otherwise, which would not before the 
 pasting of this Act have been deemed to 
 be or to have become of the essence of 
 such contracts in a Court of Equity, shall 
 receive in all Courts the same construction 
 and effect as they would have heretofore 
 received in equity. 
 
 Injunctions and Receivers. 
 
 (8.) A mandamus or an injunction may be 
 granted or a receiver appointed by an 
 interlocutory Order of the Court in all 
 cases in which it shall appear to the Court 
 to be just or convenient that such Order 
 should be made ; and any such Order may 
 be made either unconditionally or upon 
 such terms and conditions as the Court 
 shall think just; and if' an injunction is 
 asked, either before, or at, or after the 
 hearing of any cause or matter, to prevent 
 any threatened or apprehended waste or 
 trespass, such injunction may be granted, 
 if the Court shall think fit, whether the 
 person against, whom such injunction is 
 sought is or is not in possession under any 
 claim of title or otherwise, or (if out of 
 possession) does or does not claim a right 
 to do the act sought to be restrained under
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 43 
 
 any colour of title : and whether the 
 estates claimed by both or by either of the 
 parties are legal or equitable. 
 
 Damages by Collisions at Sea. 
 
 (9.) In any cause or proceeding for damages 
 arising out of a collision between two 
 ships, if both ships shall be found to have 
 been in fault, the rules hitherto in force 
 in the Court or Admiralty, so far as they 
 have been at variance with the rules in 
 force in the Courts of Common Law, shall 
 prevail. 
 
 Infants. 
 
 (10.) In questions relating to the custody and 
 education of infants the Rules of Equity 
 shall prevail. 
 
 Cases of conflict not enumerated. 
 
 (11.) Generally in all matters not hereinbefore 
 particularly mentioned, in which there is 
 any conflict or variance between the rules 
 of Equity and the rules of the Common. 
 Law with reference to the same matter, 
 
 THE RULES OF EQUITY SHALL PREVAIL. 
 
 Subsection (1) of this section was repealed in Committee 
 on the Amending Act, on the motion of 3Ir. Jackson, and 
 the following subsection was substituted for it : " In the
 
 44 SUPREME COURT OF JUDICATURE ACT, 1873- 
 
 administration by the Court of the assets of any person 
 who may die after the [commencement] of this Act, and whose 
 estate may prove to be insufficient for the payment in full 
 of his debts and liabilities, [and in the winding up of any 
 company under the Companies Acts, 1862 and 1867, whose 
 assets may prove to be insufficient for the payment of its 
 debts and liabilities, and the costs of winding up,] the same 
 rules shall prevail and be observed, as to the respective 
 rights of secured and unsecured creditors, and as to debts 
 and liabilities proveable, and as to the valuation of annui- 
 ties and future and contingent liabilities respectively, as 
 may be in force for the time being, under the law of 
 Bankruptcy, with respect to persons adjudged bankrupt ; 
 and all persons who in any such case would be entitled to 
 prove for and receive dividends out of the estate of any 
 such deceased person, may come in under the decree or order 
 for the administration of such estate, [or under the winding 
 up of such company,] and make such claims against the 
 same as they may respectively be entitled to by virtue of 
 this Act." 
 
 It will be seen that the effect of this Amendment is to 
 destroy the rule in Ifcllock's Case,* as laid down by the 
 Lords Justices.! That rule is as follows : " When a com- 
 pany is being wound up under the Companies Act, 1862, 
 a creditor holding security is entitled to prove for the whole 
 amount that is due to him, and not merely, as in bank- 
 ruptcy, for the balance remaining due after realising or 
 valuing his security." Henceforth the rules in Bankruptcy 
 " as to the respective rights of secured and unsecured 
 creditors, and other debts and liabilities proveable, and as to 
 the valuation of annuities and future and contingent lia- 
 bilities respectively ' ' will be made applicable " in the winding 
 up of any company under the Companies Acts, 1862 and 
 1867, whose assets may prove to be insufficient," just as in 
 this subsection, as originally passed in 1873, these rules 
 were made applicable, " in the administration by the Court 
 of the assets of any person, whose estate may prove to be 
 insufficient." 
 
 * 3 L. R. (Ch. App.) 769. June, 1868. 
 t Lord Hatherley and Sir C. J. Solwyu.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 45 
 
 The words added to the section by Mr. Jackson are 
 enclosed in brackets. 
 
 The law upon the subject-matter of this subsection will 
 be found in the Bankruptcy Act, 1869 (32 & 33 Viet., 
 c. 71). See also Lee on Bankruptcy; Roche and Hazlitt 
 on Bankruptcy ; and Robson on Bankruptcy, 
 
 Lord Selborne, C., thus referred to the first subsection of 
 this section in his opening remarks when introducing the 
 present measure : 
 
 " The first alteration is a rather important one. It is 
 proposed that in the administration of insolvent estates by 
 the Court after the death of the debtor, substantially the 
 rules applicable to bankruptcy shall be adopted. There 
 seems to be no good reason why the estate of an insolvent 
 debtor should be administered in one way while he is 
 living, and in another way when he is dead/'* 
 
 The rules of priority in the payment of debts by an 
 executor or administrator are so strict, that if he pay those 
 of a lower degree first, he must, on a deficiency of assets, 
 answer those of a higher degree out of his own estate. f 
 
 These rules of priority may be stated as follows : 
 
 The executor or administrator must pay 
 
 1. Debts due to the Crown by record or speciality. 
 
 2. Debts to which particular statutes give priority, as 
 in the case of an overseer of the poor, money due to the 
 parish by himj ; in the case of any person formally and 
 duly appointed an officer of a friendly society, money due 
 by him to the society in virtue of his office ; in the case of 
 the army, regimental debts || ; in the case of a treasurer or 
 collector to paving commissioners under the Metropolis 
 Act, money collected by him and due to the Commissioners.^ 
 
 3. Debts of record, including 
 
 (1.) Judgments of Courts of Record. 
 (2.) Decrees of Courts of Equity. 
 (3.) Orders in Bankruptcy, and 
 
 * Hansard's Parliamentary Debates, New Series, vol. 214, page 340. 
 t 2 Black Comm. 511. J 17 Geo. II., c. 38, s. 3. 
 
 18 & 19 Viet., c. 63, s. 23. || 2G & 27 V'.ct., c. 57. 
 
 f 57 George III., c. 22, s. 51 (Local Act).
 
 46 SUPREME COURT OP JUDICATURE ACT, 1873. 
 
 (4.) Recognisances and statutes merchant and staple.* 
 4. Debts (1) by speciality, as on bonds, covenants, and 
 other instruments under seal, and (2) by simple contract.f 
 It is beyond the power of a testator to disappoint the 
 rules of law as to the precedence of debts, by directing his 
 executors to make an equal distribution of the assets among 
 his creditors. J But if the assets in the hands of an executor 
 are equitable, i.e., assets such as can only be reached with 
 the help of a Court of Equity, and cannot be brought for- 
 ward in evidence on issue joined on an executor's plea of 
 " plene administravit," the assets must be applied in satis- 
 faction of the claims of all the creditors pari passu, with- 
 out any regard to the priority in rank of one debt over 
 another. The principle of this distinction is that in natural 
 justice and conscience, and in the contemplation of a Court 
 of Equity, all debts are equal, and the debtor is equally 
 bound to satisfy them all. " Equality," in short, is, in the 
 view of the Court of Chancery, " Equity."^ 
 
 Under the law of Bankruptcy now in force, " The Bank- 
 ruptcy Act, 1869," || the rule of equity that all debts shall 
 be paidjpan' passu is adopted with two exceptions. (1) "All 
 parochial or other local rates due from the bankrupt 
 at the date of the order of adjudication, and having become 
 due and payable within twelve months next before such 
 time ; all assessed taxes, land-tax, and property or income- 
 tax, assessed or due up to the 5th day of April next before 
 the date of the order of adjudication, and not exceeding in 
 the whole one year's assessment ; (2) all wages or salary 
 of any clerk or servant in the employment of the bankrupt 
 at the date of the order of adjudication, not exceeding four 
 months' wages or salary, and not exceeding 50 ; all wages 
 of any labourer or workman in the employment of the 
 bankrupt at the date of the order of adjudication, and not 
 exceeding two months' wages/' These debts are to be paid 
 in priority to all other debts. Between themselves such 
 
 * 2 Stephen's Black., 202, 203, and William's Exors., part 3, b. 2, c. 2. 
 t See 32 and 33 Viet., c. 46. 
 t Turner v. Cox, 8 Mad., P. C., 288. 
 
 Phmkctt v. Penton, 2 Atk., 294. "Williams on Executors, part 4, 
 bk. 1, ch. 1. Jl 32 and 33 Viet., c. 71.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 47 
 
 debts rank equally, and are to be paid in full, unless the 
 property of the bankrupt is insufficient to meet them, in 
 which case they abate in equal proportions between them- 
 selves.* 
 
 "The respective rights of secured and unsecured cre- 
 ditors." A " secured creditor " is defined by the Bank- 
 ruptcy Act, 1869, to mean " any creditor holding any mort- 
 gage, charge, or hen on the bankrupt's estate, or any part 
 thereof, as security for a debt due to him." f An unsecured 
 creditor is, of course, any creditor not holding such security. 
 Under the earlier bankrupt laws, no proof whatever was 
 allowed to be made by a creditor who held a security for his 
 debt on the bankrupt's estate. J But this was altered, first 
 as to persons holding a legal mortgage, and afterwards as 
 to all other incumbrances, and at the time of the passing 
 of the Bankruptcy Act, 1869, any creditor having a 
 mortgage, charge, or lien on any part of the bankrupt's 
 property, might either rest on his security and compel the 
 assignees to redeem him, or he might apply to have his 
 security realized under the direction of the Court, with 
 leave to prove for any deficiency, || or if such creditor had 
 power at law to sell the property composed in his security 
 he might realize it by sale without applying to the Court, 
 and then prove for the deficiency.^ But if the creditor 
 proved his whole debt, he, as a general rule, forfeited the 
 benefit of his security.** 
 
 The rights of creditors having a mortgage, charge, or 
 lien on any part of the bankrupt's property are not materially 
 altered by the Bankruptcy Act,1869. Suchcreditorsmay still 
 either reston their securities and compel the trustee to redeem 
 
 * 32 and 33 Viet., c. 71, s. 32. 
 
 t 32 and 33 Viet., c. 71, s. 16, par. 5. 
 
 t Per Sir. S. Rose. Ex parte McTurJc, 3 M. & A., 4. 
 
 Lord Loughborough's Order, 8th March, 1792 ; G. 0, 1852, R. 56 et 
 seq. 
 
 || GL 0. 1852, R. 55, et scq. 
 
 H Ex parte Geller, 2 Mad. 266 ; Ex parte Rolfe, 3 M. & A., 311 ; Ex parte 
 Johnson,3~D. M. & G.,218 ; Ex parte Sheppard, 2M. D., &D., 431; Ex parte 
 Moffat, 1 M. D. & D., 282. 
 
 ** Ex parte Downes, 1 Rose, 96. 1 Rose, 96. Ex parte J?ffffington,~hlont., 
 72; Ex parte Solomon, 1 G. & J., 25 ; Ex parte IIorn!>y,'Euck, 351.
 
 48 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 them, or they may realize their securities, or apply to have 
 them realized under the direction of the Court, and prove 
 for any deficiency.* A secured creditor may also give up 
 his security, and prove for his whole debt.f 
 
 " Debts and liabilities proveable." By the 31st section 
 of the Bankruptcy Act, 1869, all debts and liabilities, 
 present or future, vested or contingent (except demands 
 in the nature of unliquidated damages arising otherwise 
 than by reason of a contract or promise), to which the 
 bankrupt is subject at the date of the order of adjudi- 
 cation, or to which he may become subject during the 
 continuance of the bankruptcy by reason of any obli- 
 gation incurred previously to the date of the order of 
 adjudication, are to be deemed to be " debts proveable in 
 bankruptcy," and may be proved in the prescribed manner 
 before the trustee in bankruptcy. The term " liability," 
 for the purposes of the Act, includes any compensation for 
 work or labour- done, any obligation or possibility of an 
 obligation to pay money or money's worth on the 
 breach of any express or implied covenant, contract, 
 agreement, or undertaking, whether such breach does or 
 does not occur, and is or is not likely to occur, or capable 
 of occurring before the close of the bankruptcy, and gene- 
 rally it includes any express or implied engagement, 
 agreement or undertaking to pay, and capable of resulting 
 in the payment of, money or money's worth, whether such 
 payment be as respects amounts fixed or liquidated : as 
 respects time, present or future, certain or dependent on 
 any one contingency, or on two or more contingencies, as 
 to mode of valuation, capable of being ascertained by fixed 
 rules, or assessable only by a jury, or as matter of opinion. 
 " The language of the Act," observes Mr. Robson, " as to 
 admissibility to proof, is so comprehensive as to make it 
 very difficult to say what debts or liabilities existing at 
 the date of the order of adjudication will not be prove- 
 able."| 
 
 * 32 & 33 Viet., c. 71, s. 12. Rule 78 et seq. 1870. See White t: 
 Simmons, 40 L. J. (Ch.), 689 ; 6 Ch. App., 533 ; 194 "W. R., 939. 
 f 32 & 33 Viet., c. 71, s. 40. 
 J Robson on Bankruptcy, 2nd Edit., p. 185.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 49 
 
 " Valuation of Annuities." The 175th section of the 
 Bankruptcy Act, 1849,* provides that any annuity creditor 
 of a bankrupt, by whatever assurance the annuity may be 
 secured, or whether there were or not any arrears of such 
 annuity due at the date of the petition for adjudication, 
 shall be entitled to prove for the value of such annuity, 
 which the Court shall ascertain, regard being had to the 
 original price given for such annuity, deducting therefrom 
 such diminution in the value thereof as shall have been 
 caused by the lapse of time since the grant thereof, to the 
 date of the filing of the petition in bankruptcy. 
 
 The Bankruptcy Act, 1869, does not contain anything 
 relating to proof in respect of annuities. The 175th 
 section of the Act of 1849 would therefore seem to be still 
 applicable. 
 
 "Valuation of Future or Contingent Liabilities.'"' The 
 31st section of the Bankruptcy Act, 1869, provides that 
 an estimate shall be made, according to the Rules of 
 Court for the time being in force, as far as the same 
 may be applicable, and when they are not applicable, 
 at the discretion of the trustee, of the value of any 
 debt or liability proveable in bankruptcy, which, by 
 reason of its being subject to any contingency or contin- 
 gencies, or for any other reason, does not bear a certain 
 value. Any person aggrieved by any estimate made by 
 the trustee may appeal to the Court, and the Court may, 
 if it think the value of the debt or liability incapable of 
 being fairly estimated, make an order to that effect, and 
 upon such order being made, such debt or liability shall, 
 for the purposes of that Act, be deemed to be a debt not 
 proveable in bankruptcy ; but if the Court thinks that the 
 value of the debt or liability is capable of being fairly 
 estimated, it may direct such value to be assessed, with 
 the consent of all the parties interested, before the Court 
 itself, without the intervention of a jury, or, if such parties 
 do not consent, by a jury, either before the Court itself or 
 some other competent Court, and may give all necessary 
 directions for the purpose, and the amount of such value . 
 
 * 12 & 13 Viet., c. 106.
 
 50 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 when assessed, shall be proveable as a debt under the 
 bankruptcy. 
 
 The learning upon the subject-matter of subsection (2) 
 will be found fully explained in Darby and Bosanquet on 
 the Statutes of Limitation, Part IV., Chapter II., and 
 Part V., Chapter XIX. ; Brown on the Law of Limitation, 
 pp. 288-301, and 496-501; Charley on the Real Pro- 
 perty Acts, 1874, pp. 58 and 61-67; 'Dart's Vendors and 
 Purchasers, 351, 352 (4th edition).* 
 
 The law is thus briefly stated in Spence in the " Equitable 
 Jurisdiction ":f " As between the cestui q-ite trust and trus- 
 tee, unless the trustee be such by implication or construction 
 of law only, the Statute of Limitations does not apply ; the 
 trustee can only discharge himself by accounting to his 
 cestuis que trust[ent\ in such manner as the Court shall 
 consider that he ought to have done." 
 
 The learning upon the subject-matter of subsection (3) 
 will be found fully explained in the notes to the case of 
 Garth v. Cotton, in " White and Tudor's Leading Cases in 
 Equity," Waste, pp. 697-767 (4th Edition) ; and Tool's 
 " Essay on Waste, &c. 3 " Chapter I.J 
 
 Lord Selborne, C., when introducing the present 
 measure, thus summarised this subsection : 
 
 " The distinction between legal and equitable waste is to 
 be done away with." 
 
 The learning on this subject is thus summarised in Spence 
 on the " Equitable Jurisdiction :"|] 
 
 " A tenant for life without impeachment of waste, will be 
 restrained, though having a legal right so to do, from what 
 has been termed malicious, extravagant or humorsome 
 waste, for instance, the total destruction of a wood or 
 coppice. So he will be restrained from cutting down trees 
 planted or left standing for ornament, whether really or 
 fancifully ornamental, but not merely because they may be 
 
 * See Obec v. Bishop, 1 D. F. and J., 137 ; Burdick v. Garrick, 5 L. E., 
 (Ch. App.) 233. t VoL 2, p. 48. 
 
 J See Vane v. Lord Barnard, 2 Vern, 73S ; Marquis of Downshirs v. 
 Lady Sandys, 6 Vesey, 107. 
 
 Hansard's Parliamentary Debates, New Series, vol. 214, page 360. 
 
 || Vol. 2, pages 571, 572.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 51 
 
 really ornamental ; and the protection extends not only to 
 trees about the mansion, but to those in rides and avenues, 
 and to trees or clumps of trees wheresoever growing and 
 though at a considerable distance, if planted and intended 
 for ornament, and though planted by himself. It makes 
 no difference that the original mansion house is pulled 
 down, another may possibly be built for the sake of 
 the trees." It is immaterial that " the inheritance may 
 have been actually improved " by the equitable waste.* 
 
 A tenant in tail after possibility of issue extinct, although 
 unimpeachable of waste, is within the principle of equitable 
 waste. And so, also, is a tenant in fee with an executory 
 devise over. 
 
 The learning on the subject-matter of the 4th subsection 
 will be found carefully explained in Yol. III. of Preston's 
 Treatise on Conveyancing ; Mayhewon the Law of Merger,! 
 and Spence on the Equitable Jurisdiction. The inexorable 
 application of the doctrine of merger at the Common Law 
 may be illustrated by the case of Stephens v. Bridfjes,\ 
 decided by Sir John Leach, Y.C., in 1821. There a term 
 was created in 1720 for 1,000 years. Another term for 
 500 years was created in 1725. The persons possessed of 
 the term for 1,000 years took an assignment of the term of 
 500 years and assigned both these terms to certain trustees 
 for sale. The trustees put up the term for 1,000 years for 
 sale, as " an absolute irredeemable term of 1,000 years." 
 On an objection to the title taken by a purchaser, the 
 Vice-Chancellor of England decided that the trustees 
 having united in them the term of 1,000 years, and the right 
 to the reversionary term of 500 years the term of 1,000 
 years was merged in, or swallowed up by, the reversionary 
 term for 500 years, and the trustees had, therefore, no term 
 of 1,000 years to sell ! He declined to say what view a 
 Court of Equity might take of the matter under the circum- 
 
 * Lewis Bowlts's Case, 11 Co., 79 ; Williams r. Williams , 15 Ves., 428 ; 
 12 East, 209; Attorney - General v. Duke of Marlborough, 3 Madd., 538; 
 Abrahal v. Hubb, 2 Show., 69, 2 Freem., 52 ; Anon, 2 Freem., '2,78 : Cookc 
 v. Whalley, 1 Eq. Ca. Abr., 400. 
 
 t See Nurse v. Yerworth, 3 Swanst., 608. 
 
 % Madd. and Geld., 66. Also see Hughet v. Robotham, Cro. Eliz., 302.
 
 r,o 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 stances, as he was only called upon to decide whether the 
 vendor of the term of 1,000 years could make a good title in 
 law. It seems strange that a term of 1,000 years should merge 
 in a term of 500 years, but such is the law of the land. 
 Mr. Spence observes : " The principle of law is that a 
 term merges by union with the inheritance,* whether the 
 interest in the reversion be absolute, or only for a limited 
 period ; but upon this subject the Court of Chancery is 
 not guided by the yules of law."f Equity is guided by 
 the intention, actual or presumed, of the person in whom the 
 interests are united. \ Equity will also relieve against the 
 merger of a term in cases of fraud, or in order to do com- 
 plete justice to the beneficial owner of the term. See as to 
 illustrations of these two points, temp. Car. II., Daitli/ 
 v.Danby, Saunders v. Bonrnford. || The doctrine of Equity 
 that the intention of the person in whom the interests 
 are united is to be regarded is forcibly illustrated by 
 the cases relative to the payment off of charges by the 
 tenant in possession. Where debtor and creditor become 
 the same person there is in law an immediate merger 
 or extinguishment of the debt.^[ Equity holds that where 
 a tenant in fee or a tenant in tail in possession pays off 
 a charge upon his estate, the charge is merged in the 
 estate, unless he unequivocally shew his intention that it 
 shall not be merged. On the other hand, if a tenant for 
 life pays off a charge upon the estate out of his own 
 money, the burden of proof is upon those who allege that, 
 in paying off the charge, he intended to exonerate the 
 estate. A tenant in tail without power of alienation** 
 and a tenant in fee with an executory devise overt t 
 stand in this respect on the same footing as a tenant for 
 life, 
 
 * It should be " the reversion." See the judgment of V.-C. Leach, 
 Ji supra, 
 
 t Forbes v. Mo/at, 18 Vea., 390. 
 
 J Per Sir William Grant, M.R., in Forbes v. Mo/at, ubl supra 
 
 I Finch Kep., 220. || Finch Rep., 424. 
 
 II Per Lord Loughhorough, in Lord Compton v. Oxenden, 2 Ves. 
 ,TuQ., 263. 
 
 ** Shrewsbury v. Shrewsbury, 1 Ves. Jun., 227. 
 t f Drinkwater v. Coombe, 2 Sim. and St., 340.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 53 
 
 Parol evidence will be admissible to show the object the 
 tenant for life had in view in paying off the charge.* 
 
 If a trust estate merge at law in a beneficial one, equity 
 will not allow the merger to destroy the trust, or prejudice 
 the rights of the cestui que trust, \ but will decree posses- 
 sion of the lands, for the time that the estate is merged, to 
 the beneficial owner as against the trustee and all persons 
 claiming under him, or will decree a conveyance, as the 
 circumstances of the case may require.! 
 
 The learning upon the subject-matter of subsection (5) 
 will be found in Coote upon Mortgages ; Fisher on Mort- 
 gages ; Miller on Mortgages ; White and Tudor' s Leading 
 Cases, Notes to Thornborough v. Baker ; and Spence on the 
 Equitable Jurisdiction. 
 
 The position at the Common Law of a mortgagor left in 
 possession of the mortgaged premises by the mortgagee, is 
 thus described by Mr. Spence : " He only holds them 
 by the will or permission of the mortgagee, who may, 
 by ejectment and without notice, recover the possession 
 against him or against his tenant under a tenancy created, 
 subsequently to the mortgage, and he is not even entitled 
 to reap the crop, in which respect the mortgagor is in a 
 worse condition, as regards his possession, than a tenant at 
 will." In equity, however, "the mortgagee who suffers 
 the mortgagor to remain in possession, is not entitled to 
 call on the mortgagor to account for the rents he has 
 received, though the mortgaged property may have 
 become an insufficient security ; not even, as it seems, for 
 rents which have been received by the mortgagor after 
 notice to the tenants to pay their rents to the mortgagee. "|j 
 
 But the more recent work of Mr. Fisher lays down <f[ 
 that " the legal mortgagee, who gives notice to the tenant 
 to pay him the rent, becomes entitled to the rent which is 
 due at the date of the notice, as well as to that which 
 
 * Astley v. Miller, 1 Sim.. 298; Burrcll v. Earl of Egremont, 1 Beav.. 
 232. 
 
 f Hopkins v. Hopkins, 1 Atk., 592 ; Lee's Case, 3 Leo., 110. 
 J See Nurse v. Yerworth, 3 Swaast., 608. 
 Turkington v. Kearman, Llo. and G., 43. 
 || 2 Spence on the Equitable Jurisdiction, pp. 646, 647. 
 If 2 Fisher on Mortgages, 867, 2nd Edition.
 
 51 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 accrues afterwards, whether the lease be made before or 
 after the mortgage, for in the one case the lease is void 
 against the mortgagee, and in the other notice of the 
 mortgage to the tenant operates as an attornment by 
 him." 
 
 The present subsection gives the mortgagor in posses- 
 sion, up to the time when the mortgagee gives notice of 
 his intention to take possession, power to sue for the rent in 
 his own name, instead of resorting to the roundabout method 
 of suing in the name of the mortgagee. That nice ques- 
 tions might arise as to the authority of the mortgagor to 
 use the name of the mortgagee, may be gathered from the 
 cases of Trent v. Hunt,* and Snell v Finch.^ 
 
 As the punctual payment of interest to the mortgagee 
 must largely depend on the punctual receipt of the rent by 
 the mortgagor, it is for the manifest benefit of both parties 
 that the mortgagor should be entitled to sue without delay. 
 
 There is a proviso at the end of this subsection: " Unless 
 the cause of action arises upon a lease or other contract 
 made by him jointly with any other person." It is ap- 
 prehended that this merely means that the mortgagor 
 cannot sue " in his own name only " upon a joint demise or 
 joint contract, his co -lessor or co-contractor must join. 
 
 The learning on the subject-matter of subsection (6) 
 will be found in 2 White and Tudor's Leading Cases, Notes 
 to Warmstey v. Lady Tanfield ; 2 Spence's Equitable 
 Jurisdiction. 
 
 Subsection (6) of this section contains a most salutary 
 change in the law, by importing into it the equitable 
 doctrines respecting the assignment of debts, and other 
 legal choses in action. " The great wisdom and policy of 
 the sages and founders of our law," in pronouncing 
 things in action to be not assignable (so much vaunted by 
 Lord Cokel), was happily treated as " foolishness " by the 
 " sages and founders " of the Equitable Jurisdiction. 
 
 * 9 Ex., 14. t 13 C. B. (N.S.), 651. 
 
 J Lampefs Case, 10 Co., 47. 
 
 f " The Courts of Chancery from the earliest times thought the common 
 law doctrine too absurd ib? us to adopt." Buller, J., in Master v. Miller, 4 
 T. E., 340.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 55 
 
 Mr. Chute,* in his kindly way, making things pleasant 
 all round, has, however, a good word to say, even for the 
 Common Law doctrine in this case : 
 
 " We can easily perceive that in this particular the 
 Common Law rule, that nothing should be assignable which 
 could not be assigned by actual delivery, was preventive of 
 fraud ; thus, in the case of goods, every one could see who 
 was the owner of them by seeing in whose possession they 
 were ; and even in the case of lands, though the title-deeds 
 might prove no more than a life tenancy in the holder 
 thereof, still to that extent the possession of the deeds 
 proved ownership, but when Equity, no doubt to the great 
 convenience and advantage of commerce, introduced the- 
 principle of allowing choses in action and equitable interests 
 to be assigned in Equity, it is clear that a road was opened 
 for a new kind of fraud. In the case of most choses in 
 action there is no badge of ownership by which it can be 
 known whether there has or has not been a transfer, and 
 thus it is easy to see how the assignment of choses in action 
 and of equitable estates, being abstractions not capable of 
 actual physical possession, as is the case with ownership of 
 personal chattels, and even (through the title-deeds) of 
 real property, opens the way to fraud upon third 
 parties." 
 
 It will be perceived that the language of subsection (6) 
 is very guarded. In order that a legal chose in action may 
 become legally assignable, (1) the assignment must be an 
 " absolute " one ; (2) it must be " by writing under the 
 hand of the assignor ; " (3) it must not " purport to be by 
 way of charge only ; " and (4) " express notice in writing " 
 of the assignment must be " given to the debtor, trustee, 
 or other person from whom the assignor would have been 
 entitled to receive or claim the chose in action." Even 
 when all these formalities have been scrupulously observed, 
 the assignee will only take, " subject to all equities which 
 would have been entitled to priority over " his " right, if 
 the Act had not passed ; " and he may find himself involved, 
 under the proviso at the end of the subsection, in an 
 
 * Equity under the Judicature Act, pp. 57, 58.
 
 56 SUPJREME COURT OF JUDICATURE ACT, 1873. 
 
 interpleader action with " the assignor, or any one claiming 
 under him/* or " any other " claimant. 
 
 The assignment must be in writing, signed by the 
 assignor, although in equity the assignment might have 
 been by parol.* 
 
 The chief advantage which the assignee will derive from 
 the change in the law will be that " all legal remedies" will be, 
 ipso facto, transferred to him at the same time with the chose 
 in action, and he will be able to " give a good discharge " 
 for the chose in action to " the person from whom the 
 assignor would have been entitled to claim " it, and this 
 " without the concurrence of the assignor." " Exceptions " 
 have been gradually "eating up the rule," that a chose in 
 action is not assignable at Common Law, but still the old 
 doctrine left its uncomfortable traces in the requirement 
 that the assignee of the chose in action, e.g., of a bond 
 debt, could only sue by power of attorney in the name of 
 the assignor, or original creditor. The legislature has 
 at length acted on the view of Mr. Justice JBuller : " I 
 see no use or convenience in preserving that shadow when 
 the substance is gone."t The assignee of a bond debt will 
 now be able to sue in his own name. 
 
 The most important ceremony to be performed by the 
 assignee, in order to perfect his title, is to give notice in 
 writing of the assignment to the debtor, trustee, or other 
 person from whom the assignor would have been entitled 
 to claim the chose in action. The notice must be 
 " express :" " constructive " notice that blot upon the 
 equitable doctrine of notice will be insufficient. 
 
 It will be seen that the spirit of the maxim, " He who 
 comes into equity must do equity," has been preserved in 
 this case by the qualifying clause in brackets, " Subject to 
 all equities which would have been entitled to priority if 
 this Act had not passed." J 
 
 By Order I., Rule 2, of the first Schedule to the Supreme 
 
 * Per Lord Mansfield, C. J., in Heath v. Hall, 48 Taunt., 328 ; 2 Eose, 
 271. 
 
 t Master v. Miller, 4 T. R., 341. 
 
 J See, on this subject, the following recent cases : Henry Holden's case, 
 L.K., 8 Eq., 444, 448. South Blackpool Hotel Company, Ib. 25; Re
 
 SUPREME COURT OF JUDICATURE ACT, 1873. ft 7 
 
 Court of Judicature Act, 1875, " the procedure and practice 
 now used by Courts of Common Law under the Inter- 
 pleader Acts, 1 and 2 Wm. IV., c. 58, and 23 and 24 
 Viet., c. 126, shall apply to all actions and all the Divisions 
 of the High Court of Justice." 
 
 The Acts for the relief of trustees, referred to in the 
 proviso at the end of this subsection, are the 10 and 11 
 Viet., c. 96, and 12 and 13 Viet., c. 74.* 
 
 The learning upon the subject-matter of subsection (7) 
 will be found in Sugden's Vendors and Purchasers ; Dart's 
 Vendors and Purchasers; and 2 White and Tudor's 
 Leading Cases in Equity, Notes to Seton v. Slade. 
 
 " At law," saidLordRomilly,M.R.,in Parkin v. Thorold,^ 
 11 time is always of the essence of the contract. When any 
 time is fixed for the completion of it, the contract must be 
 completed on the day specified, or an action will lie for the 
 breach of it. This is not the doctrine of a Court of Equity. 
 Courts of Equity make a distinction between that which is 
 matter of substance and that which is matter of form, and 
 if it finds that by insisting on the form the substance will 
 be defeated, it holds it to be inequitable to insist on such a 
 form, and thereby defeat the substance." 
 
 Specific performance of contracts is frequently enforced 
 in Equity, where, if time were considered to be of the essence 
 of the contract, the contract must inevitably be regarded as 
 at an end. The delay of a single day, for example, in the 
 delivery of the abstract of title would invalidate the contract 
 for sale of land at law,J though the delay may have been 
 unavoidable. But in Equity, a stipulation for delivery of an 
 abstract on a certain day is considered to have been waived if 
 the purchaser does not ask for it within a reasonable time 
 before the day fixed for its delivery. So an express 
 stipulation that time shall be of the essence of the contract 
 
 Northern Assam Tea. Company, L. R., 10 Eq., 458 ; Rodger v. Comptoir 
 d'Escompte de Paris, L. R., 2 P. C., 393, 405 ; Re Imperial Land, Company 
 of Marseilles, ex partc Colborne and Strawbrige, 42 L. J., ch., 372. 
 
 * See also 28 and 29 Viet., c. 99, s. 1 ; 30 and 31 Viet., c. 142, ss. 24, 
 25 (s. 3 of 10 and 11 Viet., c. 96, is repealed by 35 and 36 Viet., c. 44, 
 8. 26). 
 
 f 16 Beav. 59, 65. 
 
 J See Berry v. Young, 2 Esp., 640 n. 
 
 Guest v. Hornby, 5 Ves., 818, 823 ; Jones v. Price, 3 Aust., 924.
 
 58 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 is considered in Equity to have been waived by a purchaser 
 who receives and retains without objection an abstract upon 
 the face of which it appears that a title cannot be made 
 within the time fixed for completion.* 
 
 Another class of cases illustrative of this subsection is 
 where the vendor seeking to enforce specific performance 
 has not the same interest in the estate which he contracted 
 to sell, or there is some deficiency in the quantity or quality 
 of it. The vendor would, in these cases, have no remedy 
 against the purchaser by action at law for damages for 
 breach of contract.f But in Equity he would be able to 
 obtain specific performance, if adequate compensation could 
 be made by him to the purchaser for the difference in value 
 between what the latter would actually get and what he 
 stipulated for. I 
 
 Again, it may be laid down as a general rule that a pur- 
 chaser may, if he chooses, compel a vendor, who has con- 
 tracted to sell a larger interest than he has, to convey to 
 him such interest as the vendor actually is entitled to, with 
 compensation. 
 
 " Passing." See s. 10 of Amending Act. 
 
 Subsection (8) . Order LIT., of the first Schedule to the 
 Supreme Court of Judicature Act, 1875, contains an 
 express reference to this subsection : " An application 
 for an order under section 25, subsection 8, of the [Prin- 
 cipal] Act, may be made to the Court' or a Judge by any 
 party. If the application be by the plaintiff for an order 
 under the said subsection 8, it may be made either ex 
 parte or with notice ; and if it be by any other party, then 
 on notice to the plaintiff, and at any time after appearance 
 by the party making the application." This is Rule 4. 
 Rules 1, 2 & 3 contain valuable provisions (copied verbatim 
 from the Schedule to this Act), relative to " interim orders 
 
 * See ffipsett v. King, N.S., 1 "VV. C., 401, 419. 
 
 t And the purchaser might recover back his deposit. Farrer v. 
 Nightingale, 2 Esp., 639 ; Hibbert v. Shee, 1 Camp., 113. 
 
 J Halsey v. Grant, 13 Ves., 77 ; Twining v. Morrice, 2 Bro. C. C., 326 ; 
 Esdaile v. Stephenson, 1 S. & S., 122. 
 
 See Mortlock v. Butter, 10 Ves., 315; Lord Bolingbroke's case, 1 S. 
 &L., 19 n. (a); Nelthorpe v. Holgate,l Coll., 203 ; Barnes v. Wood,* 
 L. E., Eq., 424.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 59 
 
 as to the subject-matter of litigation," "power to make 
 orders for the sale of goods," and " power for the Court 
 to make interim orders as to the preservation or examination 
 of property, examination of witnesses, &c." 
 
 The order is headed, " Interlocutory Orders as to Man- 
 damus (sic) Injunctions or Interim Preservation of Property." 
 This heading (teste Mr. Raikes) forms no part of the first 
 ' Schedule to the Amending Act, and it bears traces of the 
 hand of an amateur. The phrase " Mandamus Injunctions " 
 may either mean " Mandamus or Injunctions/' or " Man- 
 datory Injunctions." " Mandamus or Injunctions " is the 
 expression used in subsection (8). 
 
 As regards subsection (8), Lord Selborne, in his opening 
 remarks, when introducing the present measure, said : 
 " It is proposed to remove certain technical impediments 
 now existing in equity, in the way of applications for 
 injunctions and the appointment of receivers."* No allu- 
 sion to " Mandamus " was made by Lord Selborne. 
 
 The reference to "Mandamus" in subsection (8) may, 
 perhaps, indicate an intention on the part of the legislature 
 to extend the benefits of Section 68 of the Common Law 
 Procedure Act, 1854, which enables the plaintiff to claim 
 a writ of mandamus " commanding the defendant to fulfil 
 any [public or ^flse'-public] duty, in the fulfilment of 
 which the plaintiff is personally interested." The only 
 other interpretation which can be put upon the subsection 
 is, that it is intended that the jurisdiction of the Court of 
 Queen's Bench to issue the High Prerogative Writ of 
 Mandamus shall be shared in future by that Court with 
 the other Divisions of the High Court of Justice, but this 
 would be hardly consistent with the provisions of s. 34, 
 infra. (But see note to s. 45, infra.) 
 
 The jurisdiction of the Court of Chancery to grant 
 injunctions and appoint receivers, the one for the prevention 
 of wrong, the other for the preservation of property, was 
 exercised by it, because it was a great hardship in many 
 cases that a plaintiff should be left to the uncertain remedy 
 of damages at the Common Law, which the personal 
 
 * Hansard's Parliamentary Debates, N"ew Series, vol. 214, p. 340.
 
 GO SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 estate of the defendant might, perhaps, not be able to 
 satisfy.* 
 
 Yice-Chancellor Kindersley, in Lowndes v. Settle,^ made 
 some remarks, which throw considerable light upon this 
 subsection, and upon the allusion of Lord Selborne to 
 " certain technical impediments." " The proper mode," 
 said the Vice-Chancellor, " is to classify the cases under 
 two heads, the one where the party against whom the 
 application for the injunction is made is in possession ; 
 and the other, where the plaintiff is in possession, 
 and is asking the Court to protect his estate." The 
 Vice-Chancellor then proceeded to review the cases 
 in which the defendant, i.e., " the person against whom the 
 injunction" was sought, was "in possession," citing, amongst 
 other things, an observation of the Court in Talbot v. 
 Hope,% that the Courtis much more reluctant to entertain 
 a suit against a person in possession, than when he is 
 not in possession. The Vice-Chancellor summed up the 
 result of the cases on this branch of the subject as 
 follows : " The result of these cases is that where the 
 plaintiff is out of possession, the Court will refuse to in- 
 terfere by granting an injunction, unless there be fraud 
 or collusion, or unless the acts perpetrated or threatened 
 are so injurious as to tend to the destruction of the 
 estate. " It appears from the Vice-Chancellor's review 
 of the cases, that Sir William Grant, || Lord Justice Knight 
 Bruce,^[ and Vice-Chancellor Wigram,** when allowing 
 demurrers to bills praying for injunctions, where the 
 defendant was in possession, expressed surprise and dis- 
 satisfaction with the state of the law (or rather, of the 
 "equity"). 
 
 " The cases," continued Vice-Chancellor Kindersley, in 
 Latencies v. Settle,^ " where the plaintiff is in possession, 
 
 * Chute on Equity under the Judicature Act, p. 153. 
 
 t 33 L. J. (Ch.), 431. J 4 K. & J., 108. 
 
 See Lancashire v. Lancashire, 9 Beav., 120. 
 
 || In Jones v. Jones, 3 Her., 161. 
 
 IT In Haigh v. Jaggar, 2 Coll., 231. 
 
 ** In Davenport v. Davenport, 1 Ha. 217., 
 
 tf 33 L. J. (Ch.), 451.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 61 
 
 may be divided into two subordinate heads : first, where 
 the defendant claims under colour of right ; and, secondly, 
 where he is an absolute stranger." After reviewing the 
 cases on these two branches of the second part of the 
 subject, the Vice-Chancellor summed up as follows : 
 " When the plaintiff is in possession, and the person doing 
 the acts complained of is an utter stranger not claiming 
 under colour of right, the tendency of the Court is not to 
 grant an injunction, unless there are special circumstances, 
 but to leave the plaintiff to his remedy at law ; though 
 where the acts tend to the destruction of the estate, the 
 Court will grant it. But where the party in possession 
 seeks to restrain one who claims by adverse title, there the 
 tendency will be to grant the injunction." 
 
 The " technical impediments," referred to by Lord 
 Selborne in the way of applications for the appointment of 
 receivers, are thus stated by Mr. Chute : * 
 
 "The Court will generally provide for the safety of 
 property pending litigation, by ordering the property to 
 be brought into Court, or to be collected by a receiver. 
 But it has generally been held that the Court would not 
 appoint a receiver at the instance of a person claiming by 
 a title which he might enforce by ejectment; such a bill 
 was called an ejectment bill, and would be dismissed, and 
 the plaintiff would be turned over to the Common Law 
 Court. Thus, where there were three persons claiming 
 real property by three independent titles, and one of them 
 asked for a receiver pendente lite, it was held, on appeal, 
 that the Court had no jurisdiction to grant one.f So, 
 where the plaintiff, entitled to an annuity payable out of 
 leasehold property, came to ask for a receiver of his annuitv, 
 it w T as held that, as he had a power of distress by 4 Geo. 
 II., c. 28, to recover the annuity, the Court would give no 
 relief ; but it was said, that if an annuity has been long 
 in arrear, and a distress would not enable the annuitant to 
 raise the amount due, a receiver might be necessary. J 
 A plaintiff will no more have his suit dismissed for 
 
 * Equity under the Judicature Act, 163, 164. 
 t Carrow v. Ferrior, L. K., 3 Ch., 719. 
 I Kelsey v. Kelsey, L. R., 17 Eq., 495.
 
 62 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 coming to the wrong Court, but a receiver will be 
 granted, if just and convenient, whether the estate claimed 
 be legal or equitable." 
 
 The subsection now under discussion sweeps away, 
 it will be perceived, in its studied and wide-reaching 
 terms, all the petty distinctions, which have been so 
 laboriously built up by the Court of Chancery, and the 
 new Courts will start with much larger powers of granting 
 injunctions than the Court of Chancery had. The latter part 
 of the subsection only applies, it will be seen, to injunc- 
 tions, although Mr. Chute appears to think that it applies 
 also to receivers.* 
 
 Subsection (9.) " The ancient rule of the Court of Ad- 
 miralty," as it is termed by Lord Stowell, is tersely 
 described by Dr. Lushington in the case of The Linda. f 
 " It was decided the other day that both these vessels were 
 to blame for tlie collision. According to the law of this 
 Court the damage arising therefrom is to be divided be- 
 tween the owners of the two vessels ; if there had been a 
 cross action, the cost of the damage received by both 
 vessels would also have been equally divided. At Common 
 Law the case is different ; there the plaintiff can recover 
 nothing unless he shows that he was free from all blame." 
 So inexorably was this principle applied, that the innocent 
 owner of the cargo on board the sunken vessel could only 
 recover a moiety of his damage from the owners of the 
 vessel that sunk her, where both vessels were to blame for 
 the collision.! 
 
 The Admiralty rule has been accepted by Cleirac, 
 Valin, Kuricke, Grotius, Vande* Linden, Vinnius, Eme- 
 rigon, Pardessus, Boulay-Paty, and Pailliet, and is the law 
 of the French " Code de Commerce." It has, however, 
 been called the judicium rusticorum, the rule of arbitrators 
 who compromise when they cannot decide. || 
 
 * Mr. Chute appears, on the other hand, to think that the refusal to 
 grant injunctions, where the plaintiff is out of possession, will continue as 
 before (see p. 106). A foot-note, however, shows that he saw that this 
 would be inconsistent with the express terms of the enactment. 
 
 t 4 Jur. (N.S.), H6. 
 
 I See The Milan, Lush. 388. 
 
 Code de Com., Art. 407. 
 
 |j Maclachlan on Merchant Shipping, 2nd Edition, p. 287.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 63 
 
 As subsection (9) originally stood, it abolished the Admi- 
 ralty rule, and substituted for it the Common Law rule. 
 
 Lord Selborne, C., thus explained subsection (9), as it 
 originally stood, in his opening remarks on the introduction 
 of the present measure in 1873 : 
 
 " In respect of collisions at sea it is proposed to adopt, 
 instead of a rule which now holds good in the Court of 
 Admiralty, the rule of Common Law as to contributory 
 fault or contributory negligence. The rule of law is, that 
 if the plaintiff is equally in the wrong, he cannot recover 
 from the defendant, and if the defendant is equally in the 
 wrong, he cannot recover from the plaintiff. But what the 
 Court of Admiralty does is this. If two ships run into 
 each other and both go to the bottom, as I understand 
 the practice, the Court of Admiralty adds the value of 
 both ships, and then divides the total between the two 
 parties. So that if I were the owner of a ship worth only 
 10,000. and one of your lordships was the owner of one 
 worth 50,000, you see how ill I would fare in comparison 
 with the owner of the better ship, if both vessels went down 
 after a collision." 
 
 The learned Registrar of the Court of Admiralty,t 
 addressed an exceedingly able letter to Lord Selborne, in 
 defence of the rule of the Court of Admiralty, which led 
 not merely to the "preservation of the rule of the Court of 
 Admiralty in the Admiralty Division of the High Court, 
 but to its extension to the other Divisions of that Court, in 
 substitution for the Common Law rule. 
 
 The letter which brought about this remarkable change 
 has fortunately been preserved by Mr. David Maclachlan, in 
 the second edition of his celebrated " Treatise on the Law 
 of Merchant Shipping ;"| and it is here reproduced : 
 
 " I will take your lordship's figures, and will assume that 
 A. and B. are the owners of two vessels worth respectively 
 10,000 and 50,000 : that they come into collision, and 
 that both alike are to blame for the collision, that being a 
 condition precedent to the equal division of the damages. 
 And first I will assume that A.'s vessel goes to the bottom, 
 
 * Hansard's Parliamentary Debates, New Series, vol. 214, p. 340. 
 t Mr. Kothery. + P. 287, n. (?.)
 
 64 SUPREME COURT OF JUDICATURE ACT. 1873. 
 
 and that B.'s is uninjured, a not very unusual occurrence 
 in collisions at sea. Then A, who has lost 10,000 by the 
 sinking of his vessel, would, under the Admiralty rule, be 
 entitled to recover one-half of his loss, or 5,000, from B. 
 Secondly. Let us assume that B.'s vessel goes to the 
 bottom, an: 1 that A.'s is uninjured ; then B., who has lust 
 50,000 by the sinking of his vessel, will be entitled to 
 recover one moiety of his loss, or 25,000 from A. 
 Thirdly. I will suppose that both go to the bottom ; then 
 A., having lost 10,000 by the sinking of his vessel, is 
 entitled to recover 5,000 from B. for a moiety of his 
 damage, whilst B. is entitled to recover 25,000 from A. 
 for the moiety of his damage. Each loses 30,000 ; A., by 
 having to bear the loss of the moiety of his own vessel, or 
 5,000, and by having to pay to B. 25,000 for the moiety 
 of his, B.'s. loss ; and B. by having to bear the loss of one 
 moiety of his own vessel, or 25,000, and by having 
 to pay to A. 5,000 for the moiety of his, A.'s loss. The 
 mistake of those who think that the owner of a vessel 
 worth 10,000 might, by a collision with a vessel worth 
 50,000. recover, under the Admiralty law, no less a sum 
 than 30,000* as compensation, arises from their suppos- 
 ing that the amount at stake is a common fund to be divided 
 between two claimants, not a joint loss which has to be 
 apportioned between them. 
 
 " Let us now see what the ;result would be under the 
 Common Law rule, where, if both are to blame, neither can 
 recover anything. In the first of the three cases cited above, 
 the whole loss of 10,000 would fall upon A. ; in the second 
 the whole loss of 50,000 would fall upon B. ; and in the 
 third case, B.'s loss would be 50,000, while A.'s loss would 
 be only 10,000, or one-fifth part that of B." 
 
 The learning on the subject-matter of the 10th subsection 
 will be found in Spence on the Equitable Jurisdiction ; 
 Story's Equitable Jurisprudence ; Forsyth on the Custody 
 of Infants ; and Macpherson on the Law of Infants. 
 The Sovereign, as parens patrice, has the care of infants, 
 or rather of their property, where there is nobody else to 
 take care of them or it, or when there is somebody else, 
 
 * i.e., 10,000 + 50,000 = 60,000 ; 60,000 -f- 2 = 30,000.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 65 
 
 and he neglects his duty; and this prerogative of the 
 Sovereign is wielded by the Court of Chancery. The 
 Court of Chancery is a thoroughly domestic forum as 
 regards infants, whom (or whose property) it takes under 
 its beneficent sway. It will deprive even the father, if 
 grossly immoral or cruel, of the custody of his children, 
 will regulate the conduct of guardians, appoint them and 
 remove them at pleasure, assist them in compelling their 
 wards to go to school, arrest and imprison anyone who, 
 without its permission, marries or otherwise interferes with 
 infants under its care for contempt of Court, will intercept 
 by injunction all communications between its ward and an 
 ineligible admirer, will direct a suitable maintenance or 
 match for its infants, and control them in the manage- 
 ment of their property. How much more consonant 
 with reason and justice are the rules of Equity, in ques- 
 tions relating to the custody and education of infants, than 
 those of the Common Law, is well illustrated by the recent 
 case of Andrews v. Salt. 
 
 Thomas Andrews, a Roman Catholic, entered into a 
 parol antenuptial engagement with Ellen Fleetcroft, a 
 Protestant, that of the issue of their intended marriage the 
 males should be educated in the religion o their father, 
 the females in that of their mother. There was issue of 
 the marriage (which was solemnized in March, 1854) a 
 son and a daughter. The son was baptized and brought up 
 as a Roman Catholic. The daughter, who was born in 
 June, 1862, was baptized as a Protestant, with Protestant 
 sponsors. Thomas Andrews died when his little daughter, 
 Ellen, was only nine months old. Ellen lived with her 
 maternal grandmother (the widow having married again), 
 attended a Protestant Church, and was brought up in the 
 principles of the Protestant religion, without any objection 
 from anyone, until she was nine years of age. In 1871 
 her paternal uncle, Joseph Andrews, obtained a rule in the 
 Court of Queen's Bench, calling upon the minor's maternal 
 grandmother to shew cause why a writ of Habeas Corpus 
 should not issue directing her to bring up the body of 
 Ellen Andrews, in order that she might be handed over to 
 the custody of her paternal uncle, as her testamentary 
 guardian. It then appeared that exactly two days before 
 5
 
 66 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 his death Thomas Andrews executed a will which appointed 
 his brother Joseph testamentary guardian of his children.* 
 As the testator had no property, the will does not seem to 
 have contained anything else except this appointment. 
 The Court of Queen's Bench held that they had no dis- 
 cretion to refuse the writ. " It is with great regret," said 
 Mr. Justice Archibald, "that notwithstanding the lateness 
 of the application, and the apparent harshness of such a 
 proceeding towards the grandmother of the child, we have 
 no discretion to refuse the writ, and we are bound to 
 hand over the child to the custody of the testamentary 
 guardian."! The absurdity and cruelty of this decision is 
 at once apparent, and yet the- Court of Queen's Bench was 
 "bound " by the iron fetters of Statute and Case Law so 
 to decide. The intervention of the Court of Chancery was 
 invoked, and successfully invoked, by the child's maternal 
 relatives. Vice-Chancellor Malins granted an injunction 
 to restrain the paternal uncle, Joseph Andrews, from 
 interfering with the custody or education of the child, and 
 for the settlement of a proper scheme for her education, 
 and for the appointment of a guardian. On an appeal to 
 the Lords Justices the decision of the Vice-Chancellor was 
 affirmed,} on the ground that when a father has forfeited 
 or abandoned his right to educate his children in his own 
 religion, the Court of Chancery will consider only the 
 happiness and benefit of the child, and will order it to 
 remain in the care of those by whom it has been brought 
 up, and to be educated in their religion. 
 
 An absurd ceremony had in this case to be performed 
 before the aid of the Court of Chancery could be invoked. 
 The mother's relatives had to put 20 in the name of 
 trustees for the child, and then file a bill to make her a 
 ward in Chancery, and to administer the trust money ! 
 The Court of Chancery could then, but not till then, inter- 
 fere, because it was dealing with trust property, and with 
 the guardianship of its own ward, and not with legal rights 
 and Acts of Parliament. 
 
 By s. 34 of this Act, " the wardship of infants, and the 
 
 Under 12 Car. 2, c. 24, s. 8. f L-R-, 8 Q. B., 153, 160. 
 
 % L. R., 8 Ch. App., 622.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 67 
 
 care of infants' estates," are assigned to the Chancery 
 Division of the High Court. When, therefore, it is stated 
 in this subsection that, " in questions relating to the custody 
 and education of infants, the rules of Equity shall prevail," 
 it is not, it is apprehended, meant that the jurisdiction 
 expressly conferred upon the Chancery Division of the 
 High Court shall be conferred upon the Common Law 
 Divisions of the High Court, but that, when, e.g., the Court 
 of Queen's Bench is called upon to issue a writ of Habeas 
 Corpus under circumstances like those in Andreics v. Salt, 
 that Court will be bound to take judicial notice of the 
 countervailing rules of Equity, and to hold them to be 
 paramount to, and to override the narrow view to which 
 the Court has hitherto been compelled to give effect. This 
 being so, it will, it is apprehended, be wholly unnecessary 
 to invest, in a like case, 20 in the names of trustees, and to 
 make the infant a ward in Chancery, in order to secure what 
 subsection 7 of the last section calls a complete and final 
 determination of the matter in controversy between the 
 parties. 
 
 The eleventh subsection of this section introduces an 
 important new rule respecting conflicting rules of 
 Equity and Common Law, viz. : Where the rules of 
 Equity and of Common Law are in conflict, the rules of 
 Equity shall prevail. 
 
 Lord Selborne, C., when introducing the present measure, 
 alluded to this subsection : 
 
 " It may be asked, though I do not think the question 
 would be put by those who are well acquainted with the 
 subject why not abolish at once all distinction between 
 law and equity ? I can best answer that by asking another 
 question ndo you wish to abolish trusts ? If trusts are to 
 continue, there must be a distinction between what we call 
 a legal estate and an equitable estate. The legal estate is 
 in the person who holds the property of another ; the 
 equitable estate is in the person beneficially interested. 
 The distinction, within certain limits, between law and 
 equity is real and natural, and it would be a mistake to 
 suppose that what is real and natural ought to be dis- 
 regarded, although under our present system it is often 
 pushed beyond these limits. I content my self with saying
 
 68 SUPKEME COURT OF JUDICATURE ACT, 1873. 
 
 that those rights and remedies which belong to the system 
 of law and jurisdiction under which we actually live, and 
 which are consistent with each other, should be equally 
 recognised, and effect given to them in all branches of 
 the Court. There are some points, however, in which, 
 from this division of jurisdiction, unnecessary discrepancies 
 have been introduced by reason of arbitrary rules estab- 
 lished in. different Courts. They are not very numerous. 
 It is possible that some may have been overlooked, and on 
 the suggestion of a high authority I have added in the 
 Bill general words to provide that where there is any 
 variance between the rules of law and those of equity, and 
 the matter is not expressly dealt with, the rules of equity 
 shall prevail."* 
 
 By section 91 of this Act, infra, the several rules of 
 law enacted and declared by the present section are to be 
 in force and receive effect in all Courts whatsoever in 
 England, so far as the matters to which such rules relate 
 shall be respectively cognisable by such Courts. 
 
 PAKT III. 
 
 SITTINGS AND DISTEIBTJTION OF BUSINESS. 
 Section 26. Abolition of Terms. 
 
 The division of the legal year into terms shall 
 be abolished so far as relates to the administra- 
 tion of justice ; and there shall no longer be terms 
 applicable to any sitting or business of the High 
 Court of Justice, or of the Court of Appeal, or of 
 any Commissioners to whom any jurisdiction may 
 be assigned under this Act ; but in all other cases 
 in which, under the law now existing, the terms 
 into which the legal year is divided are used as a 
 measure for determining the time at or within 
 
 Hansard's Parliamentary Debates, New Series, voL 214, p. 339.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 69 
 
 which any act is required to be done, the same 
 may continue to be referred to for the same or 
 the like purpose, unless and until provision is 
 otherwise made by any lawful authority. Subject 
 to Rules of Court, the High Court of Justice and 
 the Court of Appeal, and the Judges thereof 
 respectively, or any such Commissioners as afore- 
 said, shall have power to sit and act, at any time, 
 and at any place, for the transaction of any part 
 of the business of such Courts respectively, or of 
 such Judges or Commissioners, or for the dis- 
 charge of any duty which by any Act of Parlia- 
 ment, or otherwise, is required to be discharged 
 during or after term. 
 
 It will be perceived that terms are not entirely 
 abolished by this section (as the marginal note would seem 
 to imply), but only "so far as relates to the administration 
 of justice." 
 
 The Hules of Court regulating the sittings and vaca- 
 tions will be found in the first Schedule to the Supreme 
 Court of Judicature Act, 1875, Order LXI. 
 
 Section 27. Vacations. 
 
 Her Majesty in Council may from time to time, 
 upon any report or recommendation of the Judges 
 by whose advice Her Majesty is hereinafter 
 authorised to make rules before the commence- 
 ment of this Act, and after the commence- 
 ment of this Act upon any report or re- 
 commendation of the Council of Judges of the 
 Supreme Court hereinafter mentioned, with the 
 consent of the Lord Chancellor, make, revoke, or
 
 70 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 modify, orders regulating the vacations to be 
 observed by the High Court of Justice and the 
 High Court of Appeal, and in the offices of the 
 said Courts respectively; and any Order in 
 Council made pursuant to this section shall, so 
 long as it continues in force, be of the same effect 
 as if it were contained in this Act ; and Rules of 
 Court may be made for carrying the same into 
 effect in the same manner as if such Order in 
 Council were part of this Act. In the meantime, 
 and subject thereto, the said vacations shall be 
 fixed in the same manner, and by the same autho- 
 rity, as if this Act had not passed. This section 
 shall come into operation immediately upon the 
 passing of this Act. 
 
 This section being expressly excepted from section 2, 
 supra, came in force on the 5th of August, 1873, the day 
 on which this Act received the Royal assent. 
 
 The Rules of Court regulating "the vacations to be ob- 
 served in the High Court of Justice and High Court of 
 Appeal," will be found, as already stated, in Order LXI. 
 of the Supreme Court of Judicature Act, 1875. 
 
 By section 17 of the Supreme Court of Judicature Act, 
 1875, it is provided " that the reference to certain Judges in 
 section 27 of the principal Act shall be deemed to refer 
 to the Judges mentioned in " that (the 17th) " section " 
 (of the Amending Act) " as the Judges on whose recom- 
 mendation an Order in Council may be made." The 
 " certain Judges " referred to in the 17th section of the 
 Amending Act are " the Lord Chancellor, the Lord Chief 
 Justice of England, the Master of the Rolls, the Lord 
 Chief Justice of the Common Pleas, the Lord Chief Baron, 
 and the Lords Justices of Appeal in Chancery, or any five 
 of them, and the other Judges of the several Courts in- 
 tended to be united and consolidated by the Principal
 
 SUPREME COURT OF JUDICATURE ACT, 1872. 71 
 
 Act as amended by that Act, or a majority of such other 
 Judges." 
 
 As to the Council of Judges, see s. 75, infra. 
 
 Section 28. Sittings in Vacation. 
 
 Provision shall be made by Rules of Court for 
 the hearing, in London or Middlesex, during 
 vacation by Judges of the High Court of Justice 
 and the Court of Appeal respectively, of all such 
 applications as may require to be immediately or 
 promptly heard. 
 
 The " provision " expressly "made" pursuant to this 
 section, will be found in the first Schedule to the Supreme 
 Court of Judicature Act, 1875, Order LXL, Rules 5 
 and 6. 
 
 SECTION 29. Jurisdiction of Judges of High 
 Court on Circuit. 
 
 Her Majesty, by commission of Assize or by 
 aDy other commission, either general or special, 
 may assign to any Judge or Judges of the High 
 Court of Justice or other persons usually named 
 in commission of Assize, the duty of trying and 
 determining within any place or district specially 
 fixed for that purpose by such commission, any 
 causes or matters, or any questions or issues of 
 fact or of law, or partly of fact and partly of law, 
 in any cause or matter depending in the said 
 High Court, or in the exercise of any civil or 
 criminal jurisdiction capable of being exercised 
 by the said High Court ; and any commission so 
 granted by Her Majesty shall be of the same
 
 72 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 validity as if it were enacted in the body of this 
 Act; and any Commissioner or Commissioners 
 appointed in pursuance of this section shall* when 
 engaged in the exercise of any jurisdiction 
 assigned to him or them in pursuance of this 
 Act, be deemed to constitute a Court of the said 
 High Court of Justice ; and, subject to any 
 restrictions or conditions imposed by Rules of 
 Court and to the power of transfer, any party to 
 any cause or matter involving the trial of a 
 question or issue of fact, or partly of fact and 
 partly of law, may, with the leave of the Judge 
 or Judges to whom or to whose Division the cause 
 
 O 
 
 or matter is assigned, require the question or issue 
 to be tried and determined by a Commissioner or 
 Commissioners as aforesaid, or at sittings to be 
 held in Middlesex or London as hereinafter in 
 this Act mentioned, and such question or issue 
 shall be tried and determined accordingly. 
 
 A cause or matter not involving any question 
 or issue of fact may be tried and determined in 
 like manner with the consent of all the parties 
 thereto. 
 
 As to the re-arrangement of Circuits, see section 23 of 
 the Supreme Court of Judicature Act, 1875, and the note 
 thereto. 
 
 " Commission of Assize." The abolition of Assizes, and 
 other real actions has thrown the Commission of Assize, as 
 distinguished from the Commission of Nisi Prius, out of 
 force.* "Or any other commission." There are practically 
 now four several authorities, by virtue of which Judges 
 
 * Stephen's Commentaries, 7th Ed., vol. 3, p. 352.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 73 
 
 sit upon Circuit* : 1. The Commission of the Peace ; 
 2. A Commission of Oyer and Terminer ; 3. A Commission 
 of General Gaol Delivery; 4. A Commission of JS T isi 
 Prius. The Judicature Commission in their First Reportf 
 made the following recommendation : " We think that 
 in lieu of the ordinary Assize commissions, one Commission 
 only should be necessary for each Circuit." In their Second 
 Report! they recommended " that actions to be tried 
 elsewhere than hi the Metropolis, or Liverpool, or Man- 
 chester, should be tried under commissions to be issued 
 from time to time by your Majesty for the trial of causes 
 at an i/ place or places named in such commissions." 
 
 The " other persons usually named " are specified in 
 section 37, infra (which must be read in connection with 
 this section), i.e., "any serjeant-at-law, or any of Her 
 Majesty's counsel learned in the law." "Any judge or 
 judges of the High Court of Justice." Section 37 enables 
 Her Majesty to include in any such commission " any 
 Ordinary Judge of the Court of Appeal." Two of these 
 will be the Lords Justices of Appeal. 
 
 " Rules of Court." Order XXXVI., Rule 29, of the 
 first Schedule to the Supreme Court of Judicature Act, 
 1875, expressly refers to this section : 
 
 tj In any cause the Court or a Judge of the Division to 
 which the cause is assigned, may, at any time or from time 
 to time, order the trial and determination of any question 
 or issue of fact, or partly of fact and partly of law, by any 
 Commissioner or Commissioners appointed in pursuance of 
 the 29th section of the said Act, or at the sittings to be 
 held in Middlesex or London, and such question or issue 
 shall be tried and determined accordingly." 
 
 Rule 1 of the same Order states that " where no place 
 of trial is named in the statement of claim, the place of 
 trial shall, unless a Judge otherwise orders, be the county 
 of Middlesex, and that any order of a Judge as to the place 
 of trial may be discharged or varied by a Divisional Court 
 of the High Court." 
 
 * See the 5th Keport of the Judicature Commission, p. 48. (2nd 
 Appendix, on Courts and Assizes.) 
 
 t P. 17. } P. 21. 
 
 See 13 <fc 14 Viet., c. 25, which also includes in the same category as 
 Serjeants and Queen's Counsel, barristers having a patent of precedence.
 
 74 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 See further as to the place of trial, Rule of the same 
 Order, and also Order XXXY, Rules 12, 13, 14 and 15. 
 as to the removal of actions from the District Registry to 
 London.* 
 
 " The power of transfer." See section 36, infra. Also 
 Order II, Rules 1 and 2 of the first Schedule to the 
 Supreme Court of Judicature Act, 1875, and subsection 2 
 of section 11 of that Act. 
 
 SECTION 30. Sittings for trial by Jury in London 
 and Middlesex. 
 
 Subject to Hules of Court, sittings for the trial 
 by jury of causes and questions or issues of fact 
 shall be held in Middlesex and London, and such 
 sittings shall, so far as is reasonably practicable, 
 and subject to vacations, be held continuously 
 throughout the year by as many Judges as the 
 business to be disposed of may render necessary. 
 Any Judge of the High Court of Justice sitting 
 for the trial of causes and issues in Middlesex or 
 London, at any place heretofore accustomed, or 
 to be hereafter determined' by Rules of Court, 
 shall be deemed to constitute a Court of the said 
 High Court of Justice. 
 
 "Subject to Rules of Court." By Order V, Rule 1 
 of the first Schedule to the Supreme Court of Judicature 
 Act, 1875, " in any action, other than a Probate action, 
 the plaintiff, wherever resident, may issue a writ of sum- 
 mons out of the registry of any district. If the defendant 
 resides within the district, he must, by Order XII., 
 Rule 2, appear to such a writ in the District Registry. 
 
 * "London," in these Rules, is probably a popular term for Middlesex.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 75 
 
 But by Order XXXY., Rule 13, any party to the action 
 may apply for an order to remove the action to London ; 
 and, in the cases specified in Rule 11 of Order XXXY., the 
 defendant may remove the action to London, as of right. 
 The Rules of Court relative to trials in Middlesex and 
 London will be found in Order XXXVI. 
 
 The " place heretofore accustomed" is, of course, the 
 Guildhall. It is to be feared that it will continue to be the 
 " accustomed place " until it is " hereafter" probably at 
 some rather distant date "determined by Rules of Court " 
 to remove the sittings to the new Palace of Justice. 
 
 This section contains a most beneficial enactment, that 
 " the sittings in Middlesex and London shall, so far as 
 is reasonably practicable, and subject to vacation, be held 
 CONTINUOUSLY THROUGHOUT THE YEAR." The number 
 of remanets left in the Court of Queen's Bench at 
 Guildhall has been a disgrace to our system of Judicature, 
 and the Judges of that Court have been powerless to 
 remedy it.* 
 
 This enactment is based on the recommendations of 
 the Judicature Commission. In their First Report they 
 said : " These sittings should be held continuously through- 
 out the legal year."f In their Second Report they referred 
 to and enforced their previous recommendation. 
 
 * Commenting on this state of things, th Law Journal of December 
 19th, 1874, observes : "The cause lists at the Guildhall would present 
 matter for very serious reflection if we were not so near a thorough reform 
 of the mischiefs exhibited by them. In the Court of Queen's Bench there 
 was, at the opening of the Court on the 10th inst., a list of 274 causes, 
 about 160 were ' remanets,' of the whole list at least 100 causes were 
 marked for special juries. On an average special jury cases take 
 a day for trial ; so by the end of the twelve days the state of the special 
 jury cause lint will not be very different from what it was at the start. In 
 the Court of Exchequer there was a list of 197 causes, and of these 65 
 were marked for special juries. In the Court of Common Pleas there was 
 a list of 101 causes. There were 17 special jury causes in the list of 
 'remanets,' and only 19 new special jury causes. It would puzzle the 
 most ingenious to discover why the Court which but a few years ago had 
 almost a monopoly of the heavy commercial causes, is now almost deserted 
 by the great City attorneys. However, this plethora in one Court and 
 inanition in another will be remedied by the Judicature Act, while some- 
 thing liko continuity of sittings will at length digest the mass which has 
 so long been the worst symptom in our legal system." 
 P. 1G.
 
 76 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 SECTION 31. Divisions of the High Court of 
 Justice. 
 
 For the more convenient despatch of business 
 m the said High Court of Justice (but not so as 
 to prevent any Judge from, sitting, whenever 
 required, in any Divisional Court, or for any Judge 
 of a different Division from his own), there shall 
 be in the said High Court five Divisions consisting 
 of such number of Judges respectively as herein- 
 after mentioned. Such five Divisions shall re- 
 spectively include, immediately on the commence- 
 ment of this Act, the several Judges following ; 
 (that is to say), 
 
 (1.) One Division shall consist of the following 
 Judges ; (that is to say), the Lord 
 Chancellor, who shall be President 
 thereof, the Master of the Kolls, and 
 the Vice-Chancellors of the Court of 
 Chancery, or such of them as shall not 
 be appointed Ordinary Judges of the 
 Court of Appeal : 
 
 (2.) One other Division shall consist of the 
 following Judges ; (that is to say), The 
 Lord Chief Justice of England, who 
 shall be President thereof, and such of 
 the other Judges of the Court of 
 Queen's Bench as shall not be appointed 
 Ordinary Judges of the Court of Appeal: 
 (3.) One other Division shall consist of the 
 following Judges ; (that is to say), The
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 77 
 
 Lord Chief Justice of the Common 
 Pleas, who shall he President thereof, 
 and such of the other Judges of the 
 Court of Common Pleas as shall not he 
 appointed Ordinary Judges of the Court 
 of Appeal : 
 
 (4.) One other Division shall consist of the 
 following Judges : (that is to say), The 
 Lord Chief Baron of the Exchequer, 
 who shall be President thereof, and such 
 of the other Barons of the Court of 
 Exchequer as shall not he appointed 
 Ordinary Judges of the Court of Appeal : 
 
 (5.) One other Division shall consist of two 
 Judges who, immediately on the com- 
 mencement of this Act, shall be the 
 existing Judge of the Court of Probate 
 and of the Court for Divorce and 
 Matrimonial Causes and the existing 
 Judge of the High Court of Admiralty, 
 unless either of them is appointed an 
 Ordinary Judge of the Court of Appeal. 
 The existing Judge of the Court of 
 Probate shall (unless so appointed) be 
 the President of the said Division, and 
 subject thereto the Senior Judge of the 
 said Division, according to the order of 
 precedence under this Act, shall be 
 President. 
 
 The said five Divisions shall be called respec-
 
 78 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 tively the Chancery Division, the Queen's Bench 
 Division, the Common Pleas Division, the 
 Exchequer Division, and the Probate, Divorce, 
 and Admiralty Division. 
 
 Any deficiency of the numher of five Judges 
 for constituting, in manner aforesaid, imme- 
 diately on the commencement of this Act, any 
 one or more of the Queen's Bench, Common Pleas, 
 and Exchequer Divisions, may be supplied by the 
 appointment, under Her Majesty's Royal Sign 
 Manual, either before or after the time fixed for 
 the commencement of this Act, of one of the 
 Puisne Justices or Junior Barons of any Superior 
 Court of Common Law from which no Judge 
 may be appointed as aforesaid to the Court of 
 Appeal, to be a Judge of any Division in which 
 such deficiency would otherwise exist. And any 
 deficiency of the number of three Vice-Chancellors 
 or of the two Judges of the Probate and Admiralty 
 Divisions at the time of the commencement of 
 this Act may be supplied by the appointment of 
 a new Judge in his place in the same manner as 
 if a vacancy in such office had occurred after the 
 commencement of this Act. 
 
 Any Judge of any of the said Divisions may be 
 transferred by Her Majesty, under Her Eoyal 
 Sign Manual, from one to another of the said 
 Divisions. 
 
 Upon any vacancy happening among the Judges 
 of the said High Court, the Judge appointed to fill
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 79' 
 
 such vacancy shall, subject to tlie provisions of 
 this Act, and to any Rules of Court which may be 
 made pursuant thereto, become a member of the 
 same Division to which the Judge whose place 
 has become vacant belonged. 
 
 It will be perceived that the utmost respect has been 
 shown by the Legislature to the Conservative instincts of 
 the legal profession in framing this section. There will, 
 practically, be no " outward and visible " manifestation of 
 the union of the Superior Courts of Law and Equity into 
 one Supreme Court. The Courts will generally sit, at 
 least until the Palace of Justice is completed, in the " place 
 heretofore accustomed." The concurrent administration 
 of the principles of law and equity by each of the existing 
 Courts, the infusion of the spirit and the transferring of 
 ' many of the forms of Chancery pleading and practice 
 into the Common Law Divisions, and vice versa these will 
 be the plastic influences which will gradually but surely 
 mould the five Divisions of the High Court into one com- 
 plete and harmonious whole. 
 
 The distribution of the High Court of Justice into 
 " Divisions," and not only so but into the precise number 
 of five Divisions, was suggested by the Judicature Com- 
 missioners in their First Report : * 
 
 " The Supreme Court would, of course, be divided into 
 as many Chambers or Divisions as the nature and extent 
 or the convenient despatch of business might require. 
 . . . . We consider it expedient, ivith a view tofacili* 
 fate the transition from the old to the new system, and to 
 make the proposed change at first as little inconvenient as 
 possible, that the Courts of Chancery, Queen's Bench, 
 Common Pleas and Exchequer should, for the present, 
 retain their distinctive titles, and should constitute so 
 many Chambers of the Supreme Court, and as regards the 
 Courts of Admiralty, Divorce and Probate, we think it 
 would be convenient that those Courts should be consoli- 
 dated, and form one Chamber or Division of the Supreme 
 Court." 
 
 * P. 9.
 
 80 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 As to " the existing Judge of the High Court of Ad- 
 miralty," see section 8 of the Amending Act, the pro- 
 visions of which will account for the precedence given by 
 subsection (5) of the present section to the existing Judge 
 of the Court of Probate. The words in brackets " but 
 not so as to prevent," &c., are founded on the following pas- 
 sao-e in the First Report of the Judicature Commission :* 
 " From the consolidation of all the present Superior Courts 
 into one Supreme Court it follows that all the Judges of 
 those Courts will become Judges of the Supreme Court ; 
 and thus every Judge, though belonging to a particular Divi- 
 sion, will be competent to sit in any Division of the Court, 
 whenever it may be found convenient for the administra* 
 tion of justice. This interchangeability, so to speak, of 
 all the Judges, will lead, it may reasonably be expected, 
 to a considerable increase in judicial power. 
 
 " From which no Judge may be appointed to the Court 
 of Appeal." See s. 4 of the Supreme Court of Judicature 
 Act, 1875. 
 
 The Judges are to hold office quamdiu se bene gesserint, 
 s. 5 of the last-mentioned Act. 
 
 SECTION 32. Power to alter Divisions by Order 
 
 in Council. 
 
 Her Majesty in Council may, from time to time, 
 upon any report or recommendation of the 
 Council of Judges of the Supreme Court herein- 
 after mentioned, order that any reduction or 
 increase in the number of Divisions of the Hiajh 
 
 o 
 
 Court of Justice, or in the number of the Judges 
 of the said High Court who may be attached to 
 any such Division, may, pursuant to such report 
 or recommendation, be carried into effect ; and 
 may give all such further directions as may be 
 necessary or proper for that purpose ; and such 
 
 * r. 9.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 81 
 
 Order may provide for the abolition on vacancy 
 of the distinction of the offices of any of the 
 following Judges, namely, the Chief Justice of 
 England, the Master of the Rolls, the Chief 
 Justice of the Common Pleas, and the Chief 
 Baron of the Exchequer, which may be reduced, 
 and of the salaries, pensions, and patronage 
 attached to such offices, from the offices of the 
 other Judges of the High Court of Justice, not- 
 withstanding anything in this Act relating to 
 the continuance of such offices, salaries, pensions, 
 and patronage ; but no such Order of Her 
 Majesty in Council shall come into operation 
 until the same shall have been laid before each 
 House of Parliament for thirty days on which 
 that House shall have sat, nor if, within such 
 period of thirty days, an address is presented to 
 Her Majesty by either House of Parliament, 
 praying that the same may not come into opera- 
 tion. Any such Order, in respect whereof no 
 such address shall have been presented to Her 
 Majesty, shall, from and after the expiration of 
 such period of thirty days, be of the same force 
 and effect as if it had been herein expressly 
 enacted : Provided always, that the total number 
 of the Judges of the Supreme Court shall not be 
 reduced or increased by any such Order. 
 
 In the passages cited from the First Report of the Judi- 
 cature Commission* under the preceding section, it will 
 
 P. 9. 
 
 6
 
 82 SUPREME COURT OF JUDICATURE ACT, 1373. 
 
 be seen that it is " for the present " only that the Comrnis- 
 sioners recommend that the existing Courts should, when 
 they become Divisions of the Supreme Court, "retain their 
 distinctive titles, with a view," merely," to facilitate the tran- 
 sition." The same considerations evidently induced the 
 framers of the preceding section to retain the time-honoured 
 titles of the Lord Chief Justice of England (2), the Master 
 of the Rolls (1), the Lord Chief Justice of the Common 
 Pleas (3), and (4) the Lord Chief Baron of the Exche- 
 quer. The present section enables Her Majesty in 
 Council, when the temporary purpose for which these titles, 
 like those of the Superior Courts, were retained, has been 
 served, to sweep away, on vacancies occurring, all distinc- 
 tion between these ancient and lofty titles and those of 
 the puisne Judges ; also to reduce or increase ad libitum 
 the number of the Divisions of the High Court. The 
 alteration in the number of the Divisions of the High 
 Court can only be made by Her Majesty in Council " upon 
 any report or recommendation of the Council of Judges ; " 
 but it would seem, from the peculiar wording of the 
 section, that the titles, salaries, and pensions of the three 
 Common Law Chiefs and of the Master of the Rolls can 
 be reduced by Her Majesty in Council, mero motu, inde- 
 pendently of the Council of Judges (as to which, see s. 75, 
 infra). 
 
 SECTION 33. Rules of Court to provide for 
 distribution of business. 
 
 All causes and matters which may be com- 
 menced in, or which shall be transferred by this 
 Act to, the High Court of Justice, shall he dis- 
 tributed among the several Divisions and Judges 
 of the said High Court, in such manner as mav 
 from time to time he determined by any Rules of 
 Court, or Orders of Transfer, to he made under 
 the authority of this Act ; and in the meantime, 
 and subject thereto, all such causes and matters
 
 SUPREME COURT OF JUDICATURE ACT, 1373. 83 
 
 shall be assigned to the said Divisions respectively, 
 in the manner hereinafter provided. Every 
 document by which any cause or matter may be 
 commenced in the said High Court shall be 
 marked with the name of the Division, or with 
 the name of the Judge, to which or to whom the 
 same is assigned. 
 
 " In the meantime in the manner hereinafter provided " 
 refers to the next section. No Rules of Court have yet * 
 been made, altering the distribution of business among the 
 five Divisions of the High Court contained in that section. 
 " Orders of Transfer." See s. 36, infra. 
 
 In the forms given in the Appendix to the Amending 
 Act, a space is left for the name of the Division ; in the 
 Chancery forms, for that of the Judge, also. 
 
 SECTION 34. Assignment of certain business to 
 particular Divisions of High Court subject to 
 Rules. 
 
 There shall be assigned (subject as aforesaid) 
 to the Chancery Division of the said Court : 
 
 (1.) 'All causes and matters pending in the 
 Court of Chancery at the commencement 
 of this Act : 
 
 (2.) All causes and matters to be commenced 
 after the commencement of this Act, under 
 any Act of Parliament by which exclusive 
 jurisdiction, in respect to such causes or 
 matters, has been given to the Court of 
 Chancery, or to any Judges 
 
 * October, 1875.
 
 84 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 thereof respectively, except appeals from 
 Qpunty Courts : _ 
 
 (3.) All causes and matters for any of the 
 following purposes : 
 
 The administration of the estates of 
 deceased persons ; 
 
 The dissolution of partnerships or the 
 taking of partnership or other ac- 
 counts ; 
 
 The redemption or foreclosure of mort- 
 gages ; 
 
 The raising of portions, or other charges 
 on land ; 
 
 The sale and distribution of the proceeds 
 of property subject to any lien or 
 charge ; 
 
 The execution of trusts, charitable or 
 private ; 
 
 The rectification, or setting aside, cr 
 cancellation of deeds or other written 
 instruments ; 
 
 The specific performance of contracts 
 between vendors and purchasers of 
 real estates, including contracts for 
 leases ; 
 
 The partition or sale of real estates ; 
 
 .The wardship of infants and the care of 
 infants' estates. 
 
 There shall be assigned (subject as aforesaid) to 
 the Queen's Bench Division of the said Court :
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 85 
 
 (1.) All causes and matters, civil and criminal, 
 pending in the Court of Queen's Bench at 
 the commencement of this Act : 
 
 (2.) All causes and matters, civil and criminal, 
 which would have been within the ex- 
 clusive cognizance of the Court of Queen's 
 Bench in the exercise of its original juris- 
 diction, if this Act had not passed. 
 
 There shall be assigned f subject as aforesaid) to 
 the Common Pleas Divisions of the said Court : 
 
 (1.) All causes and matters pending in the 
 Court of Common Pleas at Westminster, 
 the Court of Common Pleas at Lancaster, 
 and the Court of Pleas at Durham, 
 respectively, at the commencement of 
 this Act : 
 
 (2.) All causes and matters which would have 
 been within the exclusive cognizance of 
 
 O 
 
 the Court of Common Pleas at "West- 
 minster, if this Act had not passed. 
 
 There shall be assigned (subject as aforesaid) to 
 the Exchequer Division of the said Court : 
 
 (1.) All causes and matters pending in the 
 Court of Exchequer at the commencement 
 of this Act : 
 
 (2.) All causes and matters which would have 
 been within the exclusive cognizance of the 
 Court of Exchequer, cither as a Court of 
 Revenue or as a Common Law Court, if 
 this Act had not passed :
 
 86 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 (3.) All matters pending in the London Court of Bankruptcy at ihc 
 commencement of this Act : 
 
 (4.) All matters to be commenced after the commencement of this Act under 
 any Act of Parliament by which exclusive jurisdiction in respect 
 to such matters has teen given to the London Court of Bankruptcy. 
 
 There shall be assigned (subject as aforesaid) 
 to the Probate, Divorce, and Admiralty ^Division 
 of the said High Court : 
 
 (1.) All causes and matters pending in the 
 Court of Probate, or in the Court for 
 Divorce and Matrimonial Causes, or in the 
 High Court of Admiralty, at the com- 
 mencement of this Act : 
 
 (2.) All causes and matters which would have 
 been within the exclusive cognizance of the 
 Court of Probate, or the Court for Divorce 
 and Matrimonial Causes, or of the High 
 Court of Admiralty, if this Act had not 
 passed. 
 
 Section 33 of the Supreme Court of Judicature Act, 
 1875, and the second Schedule to that Act, repeal from 
 " all matters pending in the London Court of Bankruptcy" 
 to " London Court of Bankruptcy " in this section. 
 
 The substituted provisions will be found in section 9 of 
 the Amending Act. 
 
 The present section is founded on the following passage 
 in the First Report of the Judicature Commission : 
 
 Between the several Chambers or Divisions of the 
 Supreme Court it would be necessary to make such a 
 classification of business as might seem desirable with 
 reference to the nature of the suits and the relief to be 
 sought or administered therein, and the ordinary distribution 
 of business among the different Chambers or Divisions 
 should be regulated according to such classification. For 
 
 * Page 9.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 87 
 
 the same reason which induces us to recommend the reten- 
 tion/or the present of the distinctive titles of the different 
 Courts in their new character as so many Divisions of the 
 Supreme Court, we think that such classification should. 
 in the first instance be made on the principle of assigning, 
 asnearly as practicable, to those Chambers or Divisions -such 
 suits as would now be commenced in the respective Courts 
 as at present constituted; with power, however, to the 
 Supreme Court to vary or alter this classification in such 
 manner as may from time to time be deemed expedient." 
 
 The concluding words of this recommendation form the 
 foundation of the preceding section of this Act. 
 
 See the note to section 25, subsection (10), supra, in 
 reference to this section. 
 
 Forms of the general indorsements of writs in matters 
 assigned by this Act to the Chancery Division will be 
 found in Appendix (A) to the Amending Act, Part 2, 
 section 1, 1-9. 
 
 See as to proceeding in default of appearance in actions 
 assigned by this section to the Chancery Division and 
 Probate actions, Order XIII., Rule 9, of the first Schedule in 
 the Amending Act. * 
 
 SECTION 35. Option for any Plaintiff subject 
 to Rules to choose in what Division he will sue. 
 
 Subject to any Rules of Court, and to the provisions hereinbefore contained, 
 and to the power of transfer, every person by whom any cause or matter may 
 be commenced in the said High Court of Justice shall assign such cause or 
 matter to one of the Divisions of the said High Court, not being the Probate, 
 Divorce and Admiralty Division thereof, as he may think fit, by marking Iht 
 document by which the same is commenced, with the no/Me of sttch Dtc'.swn, 
 and giving notice thereof to the proper officer of the Court ; provided that all 
 iiiii-i-ii>nih,rij n<l iji.Li.j- steps and pweeedtngt 'm <>rlii'j'>\' //'/>: said a/;/// >'">'>(, 
 in any cause or matter subsequent to the commencement thereof, shall be taken 
 (subject to any Hides of Court and to the power of transfer) in the Division 
 of the said High Court to which such cause or matter is for the time being 
 (/!/'( Itcd ; provided also, that if any plaintiff or petitioner shall at any time 
 his cause or matter to any Division of the said High Court to which, 
 
 * It is greatly to be feared that the preservation of the hard-and-fast 
 lines between the Chancery and Common Law Divisions by this section 
 will impair the working of the Act as a remedial measure to the suitor.
 
 88 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 wording to the Eules of Court or the provisions of this Act, the same ought 
 not to be assigned, the Court, or any Judge of such Division, upon being in- 
 formed thereof, may, on a summary application, at any stage of the cause or 
 matter, direct the same to be transferred to the Division of the said Court to 
 which, according to such rules or provisions, the same ought to hare been 
 assigned, or he may, if he think it expedient so to do, retain the same in the 
 Division in which the samf was commenced ; and all steps and proceeding* 
 whatsoever taken by the pfaintiff or petitioner, or by any other party in any 
 such cause or matter, and all orders made therein by the Court or any Judge 
 thereof before any such transfer, shall be valid and effectual to all intents and 
 purposes in the same manner as if the same respectively had been taken and 
 made in the proper Division of the said Court to which such cause or matter 
 ought to have been assigned. 
 
 This section is repealed by the Supreme Court of Judi- 
 cature Act, 1875, s. 33, and the second Schedule. 
 
 The substituted provisions will be found in section 
 11 of the Supreme Court of Judicature Act, 1875. That 
 section, however, re-enacts the 35th section of this Act 
 verbatim, adding, at the end merely, the following 
 additional proviso : 
 
 " Subject to Rules of Court, a person commencing any 
 cause or matter shall not assign the same to the Probate, 
 Divorce, or Admiralty Division, unless he would have been 
 entitled to commence the same in the Court of Probate or 
 in the Court for Divorce and Matrimonial Causes, or in the 
 High Court of Admiralty, if this Act had not been passed." 
 
 SECTION 36. Poicer of Transfer. 
 
 Any cause or matter may at any time, and at 
 any stage thereof, and either with or without 
 application from any of the parties thereto, be 
 transferred by such authority and in such man- 
 ner as Eules of Court may direct, from one 
 Division or Judge of the High Court of Justice to 
 any other Division or Judge thereof, or may by 
 the like authority be retained in the Division in 
 which the same was commenced, although such
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 89 
 
 may not be tlie proper Division to which the 
 same cause or matter ought, in the first instance, 
 to have been assigned. 
 
 This section is founded on the following passage in the 
 First Report of the Judicature Commission : * 
 
 " It should, further, be competent for any Chamber or 
 Division of the Supreme Court to order a suit to be trans- 
 ferred at any stage of its progress to any other Chamber 
 or Division of the Court, if it appears that justice can 
 thereby be more conveniently done in the suit ; but, except 
 for the purpose of obtaining such transfer, it should not 
 be competent for any party to object to the prosecution of 
 any suit in the particular Chamber or Division in which 
 it is being prosecuted, on the ground that it ought to havo 
 been brought or prosecuted in some other Chamber or 
 Division of the Court. When such transfer has been made, 
 the Chamber or Division, to which the suit has been so trans- 
 ferred, will take up the suit at the stage to which it had 
 advanced in the first Chamber, and proceed thenceforward 
 to dispose of it in the same manner as if it had been 
 originally commenced in the Chamber or Division to which 
 it was transferred." 
 
 The " power of transfer " and " order of transfer " have 
 been already incidentally alluded to in sections 29 and 33, 
 supra. 
 
 By Order LI., Rule 1, of the first Schedule to the Supreme 
 Court of Judicature Act, 1875, " any action or actions may 
 be transferred from one Division to another of the High 
 Court or from one Judge to another of the Chancery 
 Division by an order of the Lord Chancellor, provided that 
 no transfer shall bo made from or fco any Division without 
 the consent of the President of the Division." By Rule 2 
 of the same Order, " any action may, at any stage, be 
 transferred from one Division to another by an order made 
 by the Court or any Judge of the Division to which the 
 action is assigned ; Provided that no such transfer shall 
 be made without the consent of the President of the 
 Division to which the action is proposed to be transferred." 
 
 *Page 9.
 
 90 SUPREME COURT OF JUDICATURE ACT,- 1873. 
 
 See also section 1 1 of the Supreme Court of Judicature 
 Act, 1875, subsection (2). 
 
 SECTION 37. Sittings in London and Middlesex 
 and on Circuits. 
 
 Subject to any arrangements which may be 
 from time to time made by mutual agreement 
 between the Judges of the said High Court, the 
 sittings for trials by jury in London and Middlesex, 
 and the sittings of Judges of the said High Court 
 under Commissions of Assize, Over and Terminer, 
 and Gaol Delivery, shall be held by or before Judges 
 of the Queen's Bench, Common Pleas, or Exche- 
 quer Division of the said High Court : Provided 
 that it shall be lawful for Her Majesty, if she shall 
 think fit, to include in any such Commission any 
 Ordinary Judge of the Court of Appeal or any 
 Judge of the Chancery Division to be appointed 
 after the commencement of this Act, or any Ser- 
 jeant-at-Law, or any of Her Majesty's Counsel 
 learned in the law, who, for the purposes of such 
 Commission, shall have all the power, authority, 
 and jurisdiction of a Judge of the said High Court. 
 
 See the note to s. 29, supra. 
 
 This section is amended by the 8th section of the Supreme 
 Court of Judicature Act of 1875, which enacts, that " every 
 Judge of the Probate, Divorce and Admiralty Division of 
 the High Court of Justice, appointed after the passing of 
 ' that ' Act, shall, so far as the state of business in the 
 said Division will admit, share with the Judges mentioned 
 in section 37 of the Principal Act the duty of holding 
 sittings for trials by jury in London and Middlesex ; and
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 91 
 
 sittings under Commissions of Assize, Oyer and General 
 Gaol Delivery." 
 
 A Chancery Judge sitting on a Commission of Oyer and 
 Terniiner and General Gaol Delivery, as contemplated by 
 this section, would aiford as striking an illustration of the 
 union of the Superior Courts as could well be conceived. 
 There is no principle better established than that the 
 Chancery Judges have no criminal jurisdiction. 
 
 The reader is referred to the second Appendix to the 
 Fifth (and Final) Report of the Judicature Commission 
 (1874) for interesting information respecting the subject- 
 matter of this section. The Royal Warrants for adding 
 Serjeants-at-Law and Queen's Counsel, &c., to the various 
 Commissions of Assize will be found at p. 49 et seq. 
 
 See also 13 & 14 Viet., c. 25. 
 
 SECTION 38. llota of Judges for Election 
 Petitions. 
 
 The Judges to be placed on the rota for the trial 
 of election petitions for England in each year, 
 under the provisions of the " Parliamentary 
 Elections Act, 1668," shall be selected out of the 
 Judges of the Queen's Bench, Common Pleas, 
 and Exchequer Divisions of the High Court of 
 Justice in such manner as may be provided by 
 any Rules of Court to be made for that purpose ; 
 and in the meantime, and subject thereto, shall 
 be selected out of the Judges of the said Queen's 
 Bench, Common Pleas, and Exchequer Divisions 
 of the said High Court, by the Judges of such 
 Divisions respectively, as if such Divisions had 
 been named instead of the Courts of Queen's 
 Bench, Common Pleas, and Exchequer respectively 
 in such last-mentioned Act : Provided that the
 
 92 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Judges who, at the commencement of this Act, 
 shall he upon the rota for the trial of such peti- 
 tions during the then current year, shall continue 
 upon such rota until the end of such year, in the 
 same manner as if this Act had not passed. 
 
 This is one of the transition clauses of the Act. 
 
 The Act 31 and 32 Viet., c. 125, and the General Rules 
 of Procedure, made under s. 25 of that Act by 1he election 
 Judges, will be found in the Appendix to Hardcastle on the 
 Law and Practice of Election Petitions (1874). 
 
 The "rota" for each year is to be settled " on the third 
 day of Michaelmas Term." By Rule 1 of the sixty-first 
 Order of the first Schedule to the Supreme Court of Judica- 
 ture Act, 1875, " The Michaelmas sittings shall commence 
 on the 2nd of November," i.e., the first day of the old 
 Michaelmas Term. Judges who are members of the 
 House of Lords * are excluded from the rota. Each of 
 the three Common Law Courts nominates a puisne Judge 
 to be placed upon the rota, the chief of the Court having a 
 second or casting vote, in case the Court is divided 
 
 SECTION 39. "Powers of one or more Judges not 
 constituting a Divisional Court. 
 
 Any Judge of the said High Court of Justice 
 may, subject to any E-ules of Court, exercise in 
 Court or in Chambers all or any part of the juris- 
 diction by this Act vested in the said High Court, 
 in all such causes and matters, and in all such 
 proceedings in any causes or matters, as before 
 the passing of this Act might have been heard in 
 Court or in Chambers respectively, by a single 
 Judge of any of the Courts whose jurisdiction is 
 
 * Lord Coleridge is the only Judge who is a member of the House of 
 Lords, and lie is not a puisne Judge.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 93 
 
 hereby transferred to the said High Court, or as 
 may be directed or authorised to be so heard by 
 any Rules of Court to be hereafter made. In all 
 such cases, any Judge sitting in Court shall be 
 deemed to constitute a Court. 
 
 This is, to some extent, one of the transition clauses of 
 the Act. One effect of it will be this. In the Court of 
 Chancery, and in the Court of Admiralty, the business will, 
 as it always has been, conducted before a single Judge.* 
 The words "or as may be directed or authorised to be so 
 heard by any Rules of Court to be hereafter made," afford 
 a loophole for considerable economy of Judge power. They 
 are founded on the following passage in the First Report 
 of the Judicature Commission : f 
 
 " With a Court of Appeal such as we propose to recom- 
 mend, common to all the Divisions of the Supreme Court, 
 constantly sitting, and easy of access, we think that matters 
 of great importance may properly, as now in the Court of 
 Chancery, be intrusted to the jurisdiction in the first 
 instance of a single Judge ; but, having regard to the prin- 
 ciples which have guided us in our previous recommenda- 
 tions, and to the importance of avoiding any too violent 
 transition from the modes of conducting judicial business 
 to which the public have been accustomed, and in which 
 they may be presumed to place confidence, we think it 
 will be advisable to authorise a single Judge to exercise 
 the jurisdiction of the Supreme Court, in the despatch of 
 all such business appropriated to the Divisions of the 
 Queen's Bench, Common Pleas, and Exchequer respec- 
 tively, as by general orders, or by the special order of the 
 Court, or the consent of the parties, may be remitted to 
 him." 
 
 As this is the first section which deals with the number 
 of Judges competent to form a " Court," it may not be 
 out of place to cite here the short epitome of the question, 
 as it stands, given by the Judicature Commission : f 
 
 * Per Lord Selborne, C., Hansard's Parliamentary Debates, New Series, 
 vol. 214, p. 345, and see s. 42, infra. 
 f P. 10 of their First Report.
 
 94 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 " Here arises an important and difficult question, as j[to 
 the number of Judges who should ordinarily sit in each 
 Chamber or Division of the Supreme Court. Hitherto 
 the constitution of the Court of Chancery and of the 
 Courts of Common Law, in this respect, has been entirely 
 different. Each Division of the Court of Chancery is pre- 
 sided over by a single Judge, who adjudicates on all mat- 
 ters as a Court of First Instance, except in the few cases 
 when he sits as a Court of Appeal from the County Courts. 
 In like manner, a single Judge administers justice in the 
 Courts of Probate, Divorce, and Admiralty respectively. 
 On the other hand, in the Sittings of the Courts of Common 
 Law in banco, the Court is ordinarily constituted of four 
 Judges. The matters adjudicated upon by the single 
 Judge in the Court of Chancery are in many instances as 
 important as the business transacted before the four 
 Judges in the Courts of Common Law ; so that there 
 would seem to be either a want of power in the Court of 
 Chancery, or an excess of power in the Courts of Common 
 Law ; but it must be borne in mind that a considerable 
 proportion of the business of the Courts of Common Law 
 is transacted by one of the Judges sitting at Chambers ; 
 much of the business of these Courts also consists of the 
 review of trials which have taken place before a Judge and 
 Jury ; they also review the decisions of the Judge sitting 
 at Chambers ; they are also empowered to decide various 
 important matters, some of which involve questions of 
 general public interest, on which their determination is in 
 some cases final." 
 
 Mr. Justice Lush, in his " Practice of the Superior 
 Courts of Law,"* defines in very wide terms the jurisdiction 
 of a Judge at Chambers. " The Common Law," he says, 
 " appears to vest in a single Judge the same equitable juris- 
 diction over the proceedings of a cause, which it vests in 
 the Court of which he is a constituent member. His 
 act is potentially the act of the Court, for although he 
 cannot directly enforce the orders he makes, or exercise 
 what may be termed the prerogative powers of the Court, 
 yet the Court will adopt his orders, and for disobedience 
 
 Book II., c. XVIT.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 95 
 
 thereto, when so adopted, will issue process of attachment, 
 as if the matter had been originally ordered by the Court 
 itself."* 
 
 Two remarkable statutes, 11 Geo. IV. and 1 William 
 IY., c. 70,f and 1 and 2 Yict., c. 45,t seem to have fore- 
 stalled, to some extent, the spirit of the proviso contained 
 in the next section : " Every Judge of the High Court 
 shall be qualified and empowered to sit in any such Divi- 
 sional Courts." By virtue of these enactments " it may," 
 says Mr. Justice Lush, " be laid down, that, of whichever 
 Court, a Judge of either of the Superior Courts [of Common 
 Law] is Judge, he possesses the same jurisdiction as he 
 would have had if he were a Judge of the Court to which 
 the matter in question belongs ; so that for the purpose of 
 transacting anywhere out of Court all such business, as by 
 the course and practice of the Court to which such busi- 
 ness belongs, may be transacted by a single Judge, every 
 Judge of the Superior Courts of Common Law may be said 
 to represent all the three Courts." 
 
 Where an Act gives new powers to one of the Superior 
 Courts of Common Law in general terms, these powers 
 may be exercised by a Judge at Chambers, unless they 
 are in express terms confined to " the Court" alone. || 
 
 It is competent for the Superior Courts of Common Law 
 to grant a rule nisi returnable at Chambers, with respect 
 to such matters as belong to them by Common Law.*[I It 
 is now clearly established that a Judge at Chambers has 
 the same power to award costs as the Court would have 
 had in the same case.** 
 
 SECTION 40. Divisional Courts of the High 
 Court of Justice. 
 
 Such causes and matters as are not proper to 
 
 * Seeltex v.Falkner, 2C.M. andK., 525. 
 f S-4. J S.I. 
 
 $ Smeetenv. Collier, 1 Ex., 457. 
 I! See, e.g., Jones r. Fitzaddam, 1. C. & M., 855. 
 If Casse v. Wright, 14 C. B., 562. 
 
 **Bridge v. Wright, 2 Ad. & El., 48; Hughes v. Brand, 2 D. P.O., 131 ; 
 Clement v. Weaver, 3 M. & G. } 551.
 
 96 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 be heard by a single Judge shall be heard by 
 Divisional Courts of the said High Coui't of 
 Justice, which shall for that purpose exercise all 
 or any part of the jurisdiction of the said High 
 Court. Any number of sue!; Divisional Courts 
 may sit at the same time. A Divisional Court 
 of the said High Court of Justice shall be con- 
 stituted by two or three, and no more of the 
 Judges thereof ; and, except when through pres- 
 sure of business or any other cause it may not 
 conveniently be found practicable, shall be coin- 
 posed of three such Judges. Every Judge of the 
 said High Court shall be qualified and empowered 
 to sit in any of such Divisional Courts. The 
 President of every such Divisional Court of the 
 High Court of Justice shall be the senior Judge 
 of those present, according to the order of their 
 precedence under this Act. 
 
 The provision that a Divisional Court shall not be con- 
 stituted of more than 3 Judges is intended to remedy 
 the waste of Judge power, which so frequently occurred 
 during sittings in banco at Westminster Hall. It is 
 founded on the recommendation of the Judicature Com- 
 missioners, who, in their First Report, suggested that 
 " all matters now disposed of in banco by the Courts of 
 Queen's Bench., Common Pleas, and Exchequer, shall be 
 heard and determined by not more than three Judges." 
 
 The expression, " Divisional Court," used in these and 
 several other sections of the Act, is not a particularly 
 happy one. Confusion is apt to arise in the mind of the 
 reader between the Divisions of the High Court of Justice 
 and the Divisional Courts of the High Courts of Justice ; 
 but they are quite distinct. The Divisions of the Hi^h 
 Court of Justice, five in number, have already been defined
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 97 
 
 by s. 31, supra. That the "Divisional Courts" are meant 
 to be distinct from these " Divisions " is evident from the 
 language of Lord Selborne, C., when introducing the present 
 measure : * " You would, if necessary, be able to have 
 seven Divisional Courts sitting contemporaneously/' 
 " Power will be given to have such Divisional Courts, 
 whenever it is thought desirable, in the second or Chan- 
 cery Division." A further confusion of thought arises 
 from the fact that the present section speaks of " Divi- 
 sional Courts of the High Court of Justice ;" s. 41 speaks 
 of " Divisional Courts of the Queen's Bench, Common 
 Pleas, and Exchequer Divisions of the High Court," and 
 s. 43 speaks of ''Divisional Courts of the Court of 
 Chancery." 
 
 SECTION. 4-1. Divisional Courts for business of 
 Queen's Bench, Common Pleas, and Exchequer 
 Divisions. 
 
 Subject to any Rules of Court, and in the mean- 
 time until such Rules shall be made, all business 
 belonging to the Queen's Bench, Common Pleas, 
 and Exchequer Divisions respectively of the said 
 High Court, which, according to the practice now 
 existing in the Superior Courts of Common Law, 
 would have been proper to be transacted or 
 disposed of by the Court sitting in banco if tbis 
 Act had not passed, may be transacted and 
 disposed of by Divisional Courts, which shall, as 
 far as may be found practicable and convenient, 
 include one or more Juds?e or Judges attached to 
 
 o c 
 
 * Hansard's Parliamentary Debates, New Series, vol. 214, p. 345. 
 
 7
 
 98 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 the particular Division of the said Court to which 
 the cause or matter out of which such business 
 arises has been assigned ; and it shall he the duty 
 of every Judge of such last- mentioned Division, 
 and also of every other Judge of the High Court 
 who shall not for the time being be occupied in 
 the transaction of any business specially assigned 
 to him, or in the business of any other Divisional 
 Court, to take part, if required, in the sittings of 
 such Divisional Courts as may from time to time 
 be necessary for the transaction of the business 
 assigned to the said Queen's Bench, Common 
 Pleas, and Exchequer Divisions respectively ; and 
 all such arrangements 'as may be necessary or 
 proper for that purpose, or for constituting or 
 holding any Divisional Courts of the said High 
 Court of Justice for any other purpose authorised 
 by this Act, and also for the proper transaction of 
 that part of the business of the said Queen's 
 Bench, Common Pleas, and Exchequer Divisions 
 respectively, which ought to be transacted by one 
 or more Judges not sitting in a Divisional Court, 
 shall be made from time to time under the direc- 
 tion and superintendence of the Judges of the said 
 High Court ; and in case of difference among 
 them, in such manner as a majority of the said 
 Judges, with the concurrence of the Lord Chief 
 Justice of England shall determine. 
 
 This section seems designed to carry out the following
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 99 
 
 recommendation of the Judicature Commission :* " "We 
 also think that the Judges of each Division or Chamber in 
 which there are several Judges should have power to sit in 
 banco in two sub-divisions at the same time, with the 
 assistance, whenever necessary, of a Judge or Judges from 
 any other Division of the Court." The scheme contained 
 in the present section appears to be a more elastic one than 
 that suggested by the Judicature Commission in the above 
 paragraph. There is to be no stereotyped number of 
 " Divisional Courts" for the transaction of the business 
 that would, under the old system, have been transacted by 
 the Queen's Bench, Common Pleas, and Exchequer, respec- 
 tively sitting in banco. Under the recommendation of the 
 Judicature Commission there would be six, two for each 
 Chamber. Again, the Divisional Courts to be formed under 
 this section may consist entirely of Judges of the two 
 Chambers to which the cause and matter out of which 
 the business arises has not been assigned ; which would have 
 been impossible if the recommendation of the Judicature 
 Commission had been literally carried out. The section 
 again provides that each Divisional Court shall, " as far as 
 may be found practicable and convenient," include one or 
 more Judges attached to the particular Division (or 
 Chamber) to which the cause or matter has been assigned." 
 The Judicature Commission recommend that the Divisional 
 Court, consisting of Judges of the Chamber to which the 
 cause or matter has been assigned, should " have the 
 assistance, whenever necessary, of a Judge or Judges of any 
 other Division of the Court." Under the present section 
 the Divisional Court would consist of Judges of any of the 
 three Common Law Divisions (or Chambers), supplemented, 
 if practicable, by a Judge of the Division (or Chamber) to 
 which the cause or matter was assigned. Under the recom- 
 mendation of the Judicature Commission the Divisional 
 Court would consist of Judges of the Division (or Chamber) 
 to which the cause or matter was assigned, supplemented, 
 if necessary, by a Judge of any of the other two Common 
 Law Divisions (or Chambers). 
 
 * P. 10 of their First Report.
 
 100 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 SECTION 42. Distribution of business among the 
 Judges of the Chancery and Prolate, Divorce, 
 and Admiralty Divisions of the High Court. 
 
 Subject to any Rules of Court, and in the 
 meantime until such. Rules shall be made, all 
 business arising out of any cause or matter 
 assigned to the Chancery or Probate, Divorce, 
 and Admiralty Division of the said High Court, 
 shall be transacted and disposed of in the first in- 
 stance by one Judge only, as has been heretofore 
 accustomed in the Court of Chancery, the Court 
 of Probate and for Divorce and Matrimonial 
 Causes, and the High Court of Admiralty 
 respectively ; and every cause or matter which, 
 at the commencement of this Act, may be de- 
 pending in the Court of Chancery, the Court of 
 Probate and for Divorce and Matrimonial Causes, 
 and the High Court of Admiralty respectively, 
 shall (subject to the power of transfer) be assigned 
 to the same Judge in or to whose Court the same 
 may have been depending or attached at the 
 commencement of this Act ; and every cause or 
 matter which after the commencement of this 
 Act may be commenced in the Chancery Division 
 of the said High Court, shall be assigned to one of 
 the Judges thereof, by marking the same with 
 the name of such of the said Judges as the 
 plaintiff or petitioner (subject to the power of 
 transfer) mav in his option think fit : Provided
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 101 
 
 that (subject to any E-ules of Court, and to the 
 power of transfer, and to the provisions of this 
 Act as to trial of questions or issues by Commis- 
 sioners, or in Middlesex or London) all causes 
 and matters which, if this Act had not passed, 
 would have been within the exclusive cognizance 
 
 o 
 
 of the High Court of Admiralty, shall be 
 assigned to the present Judge of the said 
 Admiralty Court during his continuance in 
 office as a Judge of the High Court. 
 
 This is, to some extent, one of the transition clauses 
 of this Act. 
 
 See the next section and s. 44 as to the holding of 
 Divisional Courts for the transaction of Chancery, Ad- 
 miralty, Probate, and Divorce business. " Each Division 
 of the Court of Chancery is presided over by a 
 single Judge, who adjudicates on all matters as a 
 Court of First Instance. In like manner, a single Judge 
 administers justice in the Courts of Probate, Divorce and 
 Admiralty respectively." First Report of the Judicature 
 Commission, p. 10. 
 
 As to the " power of transfer," see s. 36, supra. 
 
 As to " the provision of this Act as to trial of questions 
 or issues by Commissioners, or in Middlesex or London," 
 see s. 30, supra, and the notes appended thereto. 
 
 As to " causes and matters in the Court of Admiralty," 
 see s. 34. supra. 
 
 As to "the present Judge of the Court of Admiralty," 
 and the provisions for his "continuance in office," see 
 s. 8 of the Supreme Court of Judicature Act, 1875. 
 
 SECTION 43. Divisional Courts for business of 
 the Chancery Division. 
 
 Divisional Courts may be held for the 
 transaction of any part of the business assigned
 
 102 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 to the said Chancery Division, which the Judge, 
 to whom such business is assigned, with the 
 concurrence of the President of the same Division, 
 deems proper to he heard by a Divisional Court. 
 
 By the preceding section all business in the Chancery 
 Division is to be assigned in the first instance to a single 
 Judge. The Lord Chancellor is (s. 31, supra) "the 
 President " of the Chancery Division of the High Court. 
 
 SECTION 44. Divisional Courts for bwiness 
 belonging to the Division. 
 
 Divisional Courts may he held for the 
 transaction of any part of the business assigned 
 to the Probate, Divorce, and Admiralty Division 
 of the said High Court, which the Judges of such 
 Division, with the concurrence of the President 
 of the said High Court, deem proper to be heard 
 by a Divisional Court. Any cause or matter 
 assigned to the said Probate, Divorce, and 
 Admiralty Division may be heard at the request 
 of the President of such Division, with the 
 concurrence of the President of the said His-h 
 
 O 
 
 Court, by any other Judge of the said High 
 Court. 
 
 " A single Judge administers justice in the Courts of 
 Probate, Divorce, and Admiralty respectively." First 
 Report of the Judicature Commission, p. 10. 
 
 By s. 31, supra, "the existing Judge of the Court 
 of Probate shall be the President of the Probate, 
 Divorce, and Admiralty Division (^unless appointed an 
 ordinary Judge of the Court of Appeal), and subject thereto,
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 103 
 
 the senior Judge of the said Division, according to the 
 order of precedence under this Act, shall be President." 
 
 The "President of the High Court " is, presumably, 
 the Lord Chancellor, but by s. 3 of the Supreme Court of 
 Judicature Act, 1875, it is stated that "the Lord Chan- 
 cellor shall not be deemed a permanent Judge of the High 
 Court." " In the absence of the Lord Chancellor, the 
 Lord Chief Justice of England " will (s. 5, supra) be " the 
 President " of the High Court. 
 
 SECTION 45. Appeals from Inferior Courts to 
 be determined by Divisional Courts. 
 
 All appeals from Petty or Quarter Sessions, 
 from a County Court, or from any other inferior 
 Court, which might before the passing of this 
 Act have been brought to any Court or Judge 
 whose jurisdiction is by this Act transferred to 
 the High Court of Justice, may be heard and 
 determined by Divisional Courts of the said High 
 Court of Justice, consisting respectively of such 
 of the Judges thereof as may from time to time 
 be assigned for that purpose, pursuant to Rules 
 of Court, or (subject to Rules of Court) as may 
 be so assigned according to arrangements made for 
 the purpose by the Judges of the said High Court. 
 The determination of such appeals respectively 
 by such Divisional Courts shall be final, unless 
 special leave to appeal from the same to the Court 
 of Appeal shall be given by the Div sional Court 
 by which any such appeal from an inferior Court 
 shall have been heard. 
 
 By 20 and 21 Vic., c. 45, an appeal is given from the
 
 104 SUPREME COURT OF JUDICATURE ACT. 1873. 
 
 decision of any information or complaint in a summary 
 way, by any Justice or Justices, alleged to be wrong in 
 point of law, to one of the Superior Courts of Law to be 
 named by the party appealing, and - the Justice or Justices 
 may be compelled to state a case. 
 
 After judgment given against a defendant at Sessions, 
 if the indictment be bad in substance, or the judgment be 
 erroneous, or any other defect in substance appear upon 
 the face of the record, the defendant may have the judg- 
 ment reversed by a writ of error issuing from the Common 
 Law side of the Court of Chancery, or Petty Bag. The 
 judgment must have been upon an indictment, for no writ 
 of error will lie upon a mere summary conviction.* The 
 writ of error lies from all inferior criminal jurisdictions to 
 the Queen's Bench. t There seem to be two modes of 
 proceeding, either of which the defendant may adopt at his 
 option ; he may bring the writ of error directed to the 
 justices, and have the record returned to the Court of 
 Queen's Bench under and by virtue of it ; or he may have 
 the record removed into the Court of Queen's Bench by 
 certiorari, and then bring a writ of error cor am nob is. I 
 
 The writ of certiorari is a writ issuing from the civil side 
 of the Court of Queen's Bench, directed to the justices at 
 sessions, justices of the peace, or the judges of inferior 
 Courts, requiring them to certify to that Court some in- 
 dictment, conviction, order of sessions, order of justices, 
 or other matter of a judicial nature depending before 
 them, in order that the same may be disposed of as the 
 Court of Queen's Bench shall think fit. 
 
 When the justices at sessions are bylaw made judges of 
 facts as well as of law, as in appeals to them, their decision is 
 final, and cannot be reversed by any Court whatever with- 
 out their consent. If, however, they feel a difficulty in the 
 application of the law to facts in any particular case, they 
 may put those facts in the form of a special case for the 
 opinion of the Court of Queen's Bench, and confirm or 
 
 * Anon. Vent., 33; Anon. Id., 171 ; Harry's Case, 2 Jo., 167; Vin. 
 
 Abr., Error, D. ; 2 Bac. Abr., Error, A. 
 
 f Steph. Comm., Book VI., c. 24, p. 463 ; 7th Edn. 
 
 I Rex v. Foxby, 1 Salk., 266 ; 3 Com. Dig., Error, B. 
 
 Archbold's Quarter Sessions, 3rd Edn., p. 45.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 105 
 
 quash the order or conviction before them, subject to such 
 opinion ; and the Court of Queen's Bench will confirm or 
 quash the order of sessions and the order or conviction 
 appealed against, according as they are warranted by the 
 facts stated. 
 
 The Court of Queen's Bench by writ of mandamus can 
 call upon justices in sessions to do some act, which they 
 refuse to do, but which by law they ought to do, in re- 
 ference to a case before them.* It is to be observed that 
 by s. 34, supra, there shall be assigned to the Queen's 
 Bench Division of the High Court of Justice, all criminal 
 matters which would have been within the exclusive juris- 
 diction of the Court of Queen's Bench, in, the exercise of its 
 original jurisdiction, if this Act had not passed. 
 " Original" is probably used in contradistinction to appellate 
 jurisdiction. The decision of appeals from inferior 
 Courts of criminal jurisdiction appears to be vested in 
 Divisional Courts of the High Court of Justice. The 
 practice and procedure of these Divisional Courts would, 
 however, by s. 19 of the Supreme Court of Judicature Act, 
 1875, be the same as that of the Court of Queen's Bench 
 in similar criminal matters. 
 
 By s. 16 of the Statute 13 and 14 Viet., c. 61, an appeal 
 is given in Common Law cases from the County Courts 
 (when the debt or damage is above 20 and under 50), 
 "to any of the superior Courts of Common Law at 
 Westminster, two or more of the puisne Judges whereof 
 shall sit out of term as a Court of Appeal for that purpose." 
 (See East Anglian Railway Company v. Lythgoe, 2 L. M. 
 and P., 221 ; Jonas v. Adams, 20 L. J. (Q. B), 397). 
 
 By s. 18 of the Statute 28 and 29 Viet. ,c. 99, an appeal is 
 given in Equity cases from the County Courts to a Vice- 
 Chan cellor. 
 
 By s. 26 of the Statute 3 land 32 Viet., c. 71, an appeal 
 is given in Admiralty cases from the County Court to the 
 High Court of Admiralty. 
 
 By s. 58 of the Statute 20 and 21 Vic., c. 77, an appeal is 
 given from the County Court in testamentary matters to 
 the Court of Probate. 
 
 See as to special cases and mandamus, Archbold's Quarter Sessions 
 pp. 60-81, iJra tuition.
 
 106 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 By s. 71 of the Statute 32 and 33 Viet., c. 71, an 
 appeal is given from the County Court in Bankruptcy 
 cases to the Chief Judge in Bankruptcy,* and from him, 
 again, to the Court of Appeal in Chancery. 
 
 This brief statement of the diversity of appeal will illus- 
 trate the extremely beneficial character of the present 
 enactment in establishing one appellate tribunal for County 
 Courts in the High Court of Justice. 
 
 By s. 15 of the Supreme Court of Judicature Act, 1875, 
 it is provided that " it shall be lawful for Her Majesty from 
 time to time, by Order in Council, to direct that the 
 enactments relating to appeals from county courts shall 
 apply to any other inferior court of record ; and those 
 enactments, subject to any exceptions, conditions, and 
 limitations contained in the order, shall apply accordingly, 
 as from the date mentioned in the order." 
 
 From Borough and other Local Courts of Secord error 
 generally lies to the Queen's Bench.f 
 
 See, further, as to the inferior Courts and their Juris- 
 diction, part VI of this Act (including ss. 88, 89, 90, and 
 91), infra. 
 
 SECTION 46. Gases and points may be reserved 
 for or directed to be argued before Divisional 
 Courts. 
 
 Subject to any Kules of Court, any Judge 
 of the said High Court, sitting in the ex- 
 ercise of its jurisdiction elsewhere than in a 
 Divisional Court, may reserve any case, or any 
 point in a case, for the consideration of a Divi- 
 sional Court, or may direct any case, or point in 
 a case, to be argued before a Divisional Court, 
 and any Divisional Court of the said High Court 
 shall have power to hear and determine any such 
 
 * The last-mentioned appeal will, of course, under ss. 9 and 18, still go to 
 the Chief Judge in Bankruptcy, but from him to the new Court of Appeal. 
 
 t Steph Comm., B. IV., c. IV., p. 295 (Edn., 1874). 3 Black. Comm., 
 411 : 1 Roll Abr., 745 ; Carter, 222.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 107 
 
 case or point so reserved or so directed to be 
 argued. 
 
 By section 22 of the Supreme Court of Judicature Act, 
 1875, this section is thus qualified : " Whereas, by section 
 46 of the principal Act, it is enacted, that ' any Judge of 
 the said High Court sitting in the exercise of its jurisdic- 
 tion elsewhere than in a Divisional Court may reserve any 
 case, or any point in a case, for the consideration of a 
 Divisional Court, or may direct any case or point in a case 
 to be argued before a Divisional Court :' Be it hereby 
 enacted, that nothing in the said Act, nor in any rule or 
 order made under the powers thereof or of this Act, shall 
 take away or prejudice the right of any party to any 
 action to have the issues for trial by jury submitted and 
 left by the Judge to the jury before whom the same shall 
 come for trial, with a proper and complete direction to the 
 jury upon the law, and as to the evidence applicable to 
 such issues. Provided also, that the said right may be 
 enforced either by motion in the High Court of Justice or 
 by motion in the Court of Appeal founded upon an excep- 
 tion entered upon or annexed to the record."* 
 
 This qualification was inserted at the instance of Mr. 
 Watkin Williams, Q.C., in Committee on the Bill in the 
 House of Commons, as an amendment to section 21, with 
 a view to making it clear that the words ''may reserve 
 any case," in section 4t>, were not intended to 
 interfere with trial by jury. It seems, however, pretty 
 clear that that section has reference exclusively to questions 
 of law, and that its object is to give a Judge power to 
 reserve such questions for a Divisional Court, instead of the 
 full Court in Banco : vide s. 41, supra. \ 
 
 Lord Selborne, C., when introducing the present measure 
 said : " It is proposed to retain trial by jury in all cases 
 where it now exists, except in one particular." This he 
 explained to be the reference of cases of account, whether 
 
 * The following statutes were referred to in the margin, but do not 
 appear in the margin of the new Act : 13 Ed. 1, st. 1, c. 31 : 3 & 4 Viet., 
 c. 60., s. 15 ; 15 & 16 Viet., c. 76. s. 184 ; 20 & 21 Viet., c. 85, s. 39 ; 22 & 
 23 Viet., c. 21 ; 23 & 24 Viet., c. 144, s. 1. 
 
 t The amendment has beefi severed in the Lords from the context, and 
 now appears as a separate section (s. 22).
 
 108 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 the parties consent or not, to official referees. " The pro- 
 posal of the Bill is that they shall determine all questions 
 of fact or account, leaving questions of law to be deter- 
 mined by the Divisional Courts."* 
 
 SECTION 47. Provision for Crown cases 
 reserved. 
 
 The jurisdiction and authorities in relation to 
 questions of law arising in criminal trials which 
 are now vested in the Justices of either Bench 
 and the Barons of the Exchequer hy the Act of 
 the session of the eleventh and twelfth years of 
 the reign of Her present Majesty, chapter seventy- 
 eight, intituled, " An Act for the further amend- 
 ment of the administration of the Criminal Law," 
 or any Act amending the same, shall and may he 
 exercised after the commencement of this Act by 
 the Judges of the High Court of Justice, or five 
 of them at the least, of whom the Lord Chief 
 Justice of England, the Lord Chief Justice of the 
 Common Pleas, and the Lord Chief Baron of the 
 Exchequer, or one of such chiefs at least, shall he 
 part. The determination of any such question 
 by the Judges of the said High Court in manner 
 aforesaid shall he final and without appeal ; and 
 no appeal shall lie from any judgment of the 
 said High Court in any criminal cause or matter, 
 save for some error of law apparent upon the 
 record, as to which no question shall have been 
 reserved for the consideration of the said Judges 
 
 * Hansard's Parliamentary Debates, New Series, vol. 214, p. 346.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 109 
 
 under the said Act of the eleventh and twelfth 
 years of Her Majesty's reign. 
 
 By s. 100, supra, " Crown cases reserved " shall mean 
 such questions of law reserved in criminal trials as are 
 mentioned in the Act 11 and 12 Viet., c. 78. By s. 1 of 
 that Act it is provided as follows : 
 
 " When any person shall have heen convicted of any 
 treason, felony, or misdemeanour before any Court of Oyer 
 and Terminer or Gaol Delivery, or Court of Quarter Sessions, 
 the Judge or Commissioner, or Justices of the Peace before 
 whom the case shall have been tried may, in his or 
 their discretion, reserve any question of law which shall 
 have arisen on the trial for the consideration of the Justices 
 of either Bench and Barons of the Exchequer ; and there- 
 upon shall have authority to respite execution of the 
 judgment on such conviction, or postpone the judgment 
 until such question shall have been considered and decided, 
 as he or they may think fit." 
 
 By s. 3 of the same Act, it is enacted : 
 
 " That the jurisdiction and authorities by this Act given 
 to the said Justices of either Bench, and Barons of the 
 Exchequer, shall and may be exercised by the said 
 Justices and Barons, or five of them at the least, of whom 
 the Lord Chief Justice of the Court of Queen's Bench, the 
 Lord Chief Justice of the Court of Common Pleas, and the 
 Lord Chief Baron of the Court of Exchequer, or one of 
 such chiefs at least, shall be part, being met in the Ex- 
 chequer Chamber or other convenient place ; and the 
 judgment or judgments of the said Justices and Barons 
 shall be delivered in open Court, after hearing Counsel 
 or the parties, in case the prosecutor or the person con- 
 victed shall think it fit that the case shall be argued, in 
 like manner as the judgments of the Superior Courts of 
 Common Law at Westminster or Dublin, as the case may 
 be, are now delivered." 
 
 It will be perceived that the present section practically 
 re-enacts the provisions of the 3rd section of the 11 and 
 12 Viet., c. 78, as to the quorum of Judges, " the Judges 
 of the High Court of Justice" being merely substituted
 
 110 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 for "the Justices of either Bench and Barons of the 
 Exchequer." 
 
 " Save for some error of law apparent upon the record," 
 Where, on a judgment of the High Court of Justice in a 
 criminal cause or matter, there is some error of law 
 apparent upon the record, on which the question shall have 
 been reserved under 11 and 12 Viet., c. 78, an appeal lies, 
 under ss. 18 and 19 and this section to the new Court 
 of Appeal, in substitution for the old Appeal under the 
 1 William IV., c. 70, s. 8, to the Court of Exchequer 
 Chamber. 
 
 SECTION 48. Motions for new trials to be heard 
 by Divisional Courts. 
 
 Every motion for a new trial of any cause or matter on which a verdict has 
 been found by a jury, or by a Judge without a jury, and every motion in 
 arrest of judgment, or to enter judgment non obstante veredicto, or to enter a 
 verdict for plaintiff or defendant, or to enter a nonsuit, or to reduce damages, 
 shall be heard before a Divisional Court ; and no appeal shall lie from amj 
 judgment founded upon and applying any verdict, unless a motion has been 
 made or other proceeding taken before a Divisional Court to set aside or reverse 
 such verdict, or the judgment, if any, founded thereon, in which case an 
 appeal shall lie to the Court of Appeal from the decision of the Divisional 
 Court upon such motion or other proceeding. 
 
 This section is repealed by the Supreme Court of 
 Judicature Act, 1875, s. 33, and the second Schedule. 
 
 The provisions of that Act with regard to new trials 
 will be found in Order XXXIX of the first Schedule. 
 (Rule 3 of that Order is substantially a re-enactment of 
 Rule 48 of the Schedule to this Act.) 
 
 SECTION 49. What orders shall not be subject to 
 Appeal. 
 
 No order made by the High Court of Justice 
 or any Judge thereof, by the consent of parties, 
 or as to costs only which by law are left to the
 
 SUPREME COURT OF JUDICATURE ACT, 1873. Ill 
 
 discretion of the Court, shall be subject to any 
 appeal, except by leave of the Court or Judge 
 making such order. 
 
 As to orders made by a Judge at Chambers by consent 
 of the parties, Mr. Justice Lush observes : " If the party 
 called on to show cause at Judges' Chambers give his 
 consent to the summons, the order may be drawn up as of 
 course, unless it be for a writ of trial or a pleading of 
 several matters, when the matter must be submitted to a 
 Judge. So if the parties agree that costs of Counsel shall 
 be allowed, it must be submitted to him for his certificate. 
 By consenting, the party precludes himself from afterwards 
 appealing against or questioning the validity of the order. 
 Thus, when a summons to plead several matters was 
 consented to, the plaintiff was holden to have debarred 
 himself from moving to strike out one of the pleas, as being 
 in contravention of the pleading rules.* If the order 
 purports to be by consent and no act remains to be done 
 by authority of the Court, the Court cannot interfere, even 
 though the order be incorrectly drawn up ; an application 
 must first be made to the Judge to amend it.f 
 
 Where a Judge makes an order at Chambers, and, 
 exercising a discretionary power, gives costs as prayed in 
 the summons, but annexes a condition thereto, the Court 
 will not interfere to remove the condition, even though 
 the order has not been drawn up. Bartlett v. Staton, 
 L. R,, 1 C. P., 483. 
 
 By Reg. Gen., Trin. T. 1853, " In no case shall error 
 be brought for any error in a judgment with respect to 
 costs ; but the error may be amended by the Court in 
 which such judgment may have been given, on the 
 application of either party." 
 
 By the 47th Rule in the Schedule to this Act it was 
 provided that " the costs of and incident to all proceedings 
 in the High Court " shall " be in the discretion of the 
 Court." This Rule is repealed by the Amending Act, but 
 
 *Howen v. Carr, 5 D. P. C., 305 ; Lush's Practice, 3rd Ed., p. 953. 
 t Sail v. Weit, 1 D.and L.,412 ; Lush's Practice, 3rd Ed., p. 954.
 
 112 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 it is re-enacted in the first Schedule to that Act, Order LV, 
 On the motion of Mr. Watkin Williams, however, trials 
 by jury were, in Committee on the Bill, excepted from the 
 operation of this Rule ; and therefore the scope of the 
 present section is correspondingly narrowed. 
 
 SECTION 50. As to discharging orders made in 
 Chambers. 
 
 Every order made by a Judge of the said 
 Court in Chambers, except orders made in the 
 exercise of such discretion as aforesaid, may be 
 set aside or discharged upon notice by any 
 Divisional Court, or by the Judge sitting in 
 Court, according to the course and practice of 
 the Division of the High Court to which the 
 particular cause or matter in which such order 
 is made may be assigned ; and no appeal shall 
 lie from any such order to set aside or discharge 
 which no such motion has been made, unless by 
 special leave of the Judge by whom such order 
 was made, or of the Court of Appeal. 
 
 Is the word "notice" a typographical error for "motion?" 
 The word "such" appears to be meaningless, otherwise. 
 
 "If an order has been refused by a Judge at Chambers, 
 it is irregular to make the same application to another 
 Judge;* and the latter will not knowingly entertain an 
 application which has thus been already disposed of. The 
 proper course is to apply to the Court.f So, to rescind and 
 vary an order, the motion must be made to the same Judge 
 or to the Court. The order need not be made a Rule of 
 Court, preparatory to moving ; if it be, the motion should 
 
 * Wright v. Stevenson, 5 Taunt., 850. 
 f Pike v. Davis, 6. M & W., 546
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 113 
 
 be to rescind the rule ; in other cases it should be to rescind 
 the Order.* 
 
 By the Interpleader Act, 11 and 12 Win. IV., c. 58, 
 "every order to be made by a single Judge not sitting in 
 open Court, shall be liable to be rescinded or altered by the 
 Court in like manner as other orders made by a single 
 Judge." 
 
 By section 4 of the Common Law Procedure Act, 1860 
 (23 and 24 Viet., c. 126), any order made by a Judge upon 
 an application for relief against forfeitures for breach of a 
 covenant, or condition to insure against loss or danger by 
 fire, shall be subject to an appeal to the Court, and may 
 be discharged, varied, and set aside by the Court upon 
 such terms as the Court shall think fit, upon application 
 made thereto by any party dissatisfied with such order. 
 No appeal lies from a Judge at Chambers when the matter 
 is by statute left entirely in his discretion. (Burman v. 
 Howard, L. J. 25 (Ex.) 289.) 
 
 The Courts are always reluctant to interfere with the dis- 
 cretion exercised by a Judge at Chambers ; and they will 
 never now reverse his decision, unless it clearly appears that 
 he acted on a wrong principle.! As regards interrogatories, 
 the Courts are in the habit of assuming that the Judge at 
 Chambers, in allowing and disallowing interrogatories, has 
 used his discretion with reference to the particular circum- 
 stances of the case, and an appeal is generally fruitless, t 
 
 The words, " such discretion as aforesaid," would appear, 
 however, to relate only to the discretion mentioned in 
 the previous section, i.e., " as to costs, which by law are 
 left to the discretion of the Court." See notes to that 
 section. 
 
 When the rule nisi to rescind the order of a Judge is 
 discharged, it is usual to discharge it with costs, unless the 
 point raised is new and diflicult. 
 
 With reference to the last part of this section, Order LI V., 
 
 * Lush's Practice, 3rd. edn., pp. 954-5. 
 
 t See Edmunds v. Greenwood, L. R., 4 C. P., 90 ; Villeboisnet v. Tobi*, 
 id., 184 ; Morris v. Bethel, id., 765 ; and Iman v. Jenkins, L. R., 5 C. P., 738. 
 
 J Day's Common Law Pro. Acts, p. 308, 4th ed., citing L., R. 4 
 C. P., 184, 190, 191. 
 
 Hawkins v. Carr, L.R., 1 Q.B.,89.
 
 114 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Rule 6, of the first Schedule to the Supreme Court of 
 Judicature Act, 1875, provides that in the Q.B., C.P., and 
 Ex. Divisions every appeal to the Court from any decision 
 at Chambers shall be by motion.* 
 
 SECTION 51. Provision for absence or vacancy 
 
 in the office of a Judge. 
 Upon the request of the Lord Chancellor 
 shall be lawful for any Judge of the Court of 
 Appeal, who may consent so to do, to sit and 
 act as a Judge of the said High Court, or to 
 perform any other official or ministerial acts 
 for or on behalf of any Judge absent from 
 illness or any other cause, or in the place of any 
 Judge whose office has become vacant, or as an 
 additional Judge of any Division ; and while so 
 sitting and acting any such Judge of the Court 
 of Appeal shall have all the power and authority 
 of a Judge of the said High Court. 
 
 Under s. 4 of the Supreme Court of Judicature Act, 
 1875, as amended on the Report in the House of Com- 
 mons, the Common Law and Probate and Divorce and 
 Admiralty Judges may be requested to attend the sittings 
 of the Court of Appeal. This section, therefore, is a 
 pleasing illustration of the principle of reciprocity. 
 
 SECTION 52. Power of a single Judge in Court 
 
 of Appeal. 
 
 In any cause or matter pending before 
 the Court of Appeal, any direction : inci- 
 dental thereto, not involving the decision of the 
 appeal, may be given by a single Judge of the 
 
 * And shall be made within 8 days after the decision appealed from.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 115 
 
 Court of Appeal ; and a single Judge ot the 
 Court of Appeal may at any time during vacation 
 make any interim order to prevent prejudice to 
 the claims of any parties pending an appeal as 
 he may think fit ; but every such order made by 
 a single Judge may be discharged or varied by 
 the Court of Appeal or a Divisional Court 
 thereof. 
 
 The application to the Judge of the Court of Appeal is 
 to be by motion, pursuant to Order LIII. of the first 
 Schedule to the Supreme Court of Judicature Act, 1875.* 
 The Judge has power (inter alia) to alter the order of the 
 cause in the list of appeals (Order LVIIL, Rule 8) ; to 
 order the whole or any part of the evidence in the Court 
 below to be printed, and to relieve any party printing- 
 such evidence without such order from the costs thereof, 
 to which he would otherwise be subject (Order LV1II.. 
 Bule 12). " Or a Divisional Court thereof." See s. 12 of 
 the Amending Act. 
 
 SECTION 53. Divisional Courts of Court 
 of Appeal. 
 
 Every appeal to the Court of Appeal shall be heard or determined cither 
 l>/ the ivhole Court or by a Divisional Court consisting of any number, not 
 loss than three, of the Judges thereof. Any number of such Divisional Court* 
 may sit at the same time. Any appeal which for any reason may be deemed 
 fit to be re-argued before decision, or to be re-heard before final judgment, may 
 b<: so re-argued or re-heard before a greater number of Judges if the Co'irt of 
 \ i>i)c<tl think fit so to direct. 
 
 This section is repealed by the Supreme Court of Judi- 
 cature Act, 1875, section 33, and the second Schedule. 
 
 The reason of this repeal is obvious. The Court of 
 Appeal to which the present section was originally ap- 
 plicable was a large body, out of which Divisional Courts 
 might easily have been formed. The intermediate Court 
 
 * Order LVIIL, Rule 18, of the first Schedule to the feuprcme Court oi' 
 Judicature Act, 1875.
 
 116 SUPREME COURT OF JUDICATURE ACT, 1873 
 
 of Appeal, defined by s. 4 of the Amending Act, is a 
 smaller body the ordinary Judges being only three in 
 number, the minimum number fixed by this section for a 
 Divisional Court of the Court of Appeal. See, however, 
 s. 12 of the Amending Act. 
 
 SECTION 54. Judges not to sit on Appeal from 
 their own Judgment. 
 
 No Judge of the said Court of Appeal shall sit as a Judge on the hearing 
 of an appeal from any judgment or order made by himself , or made by any 
 Divisional Court of the High Court of which he was himself a member. 
 
 This section is repealed by section 4 of the Supreme 
 Court of Judicature Act, 1875. It is re-enacted, how- 
 ever, by that section, with the substitution of the words, 
 " was and is a member " for " was himself a member," so 
 as to adapt it to the constitution of the new Court of 
 Appeal, which includes additional Judges exercising 
 original jurisdiction in the High Court of Justice. The 
 alteration was inserted on the Report in the House of 
 Commons at the instance of Sir Henry James, Q.C. 
 
 SECTION 55. Arrangements for business of Court 
 of Appeal, and for hearing Appeals trans- 
 ferred from the Judicial Committee of fhe 
 Privy Council. 
 
 All such arrangements as may be necessary or proper for the transaction of 
 the business from time to time pending before the Court of Appeal, and for 
 onstituting and holding Divisional Courts thereof, shall be made by and 
 under the direction of the President and the other ex-officio and ordinary 
 Judges of the said Court of Appeal ; and if Her Majesty shall be pleased by 
 Order in Council to direct that the hearing of such appeals and petitions to 
 Her Majesty in Council as hereinbefore mentioned shall be referred to the 
 said Court of Appeal, not less than one Divisional Court of the said Court of 
 Appeal shall sit throughout the year (except during vacations') for the hearing 
 of such of the appeals and petitions so referred as may from time to time be 
 depending and ready for hearing, which Divisional Court shall be composed 
 (at far as may be found practicable) of Judges of the Court of Appeal, who
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 117 
 
 are also members of Her Majesty's Privy Council; and any member of Her 
 Majesty 's Privy Council who, having held the office of Judge in the East 
 Indies, or in any of Her Majesty's dominions beyond the seas, shall have been 
 appointed by Her Majesty, under the Acts relating to the Judicial Committee 
 of the Privy Council, to attend the sittings of the said Judicial Committee, 
 may attend the sittings of any such Divisional Court of the Court of Appeal; 
 and with respect to the place of sitting of any such last -mentioned Divisional 
 Court, and any attendance or service therein, or in aid of the proceedings 
 thereof, which may be required from the Registrar or any other officer of Her 
 Majesty's Privy Council, all such arrangements as may be necessary or proper 
 shall be made by the Lord Chancellor, as President of the Court of Appeal, 
 with the concurrence of the President for the time being of Her Majesty's 
 Privy Council ; and the President of Her Majesty's Privy Council shall from 
 time to time give such directions to the Registrar and other officers of the said 
 Privy Council as may be necessary or proper for the purpose of carrying such 
 last-mentioned arrangements into effect. 
 
 The operation of this section is suspended, like that of 
 the 21st, which is in pari mater ia, until the first day of 
 November, 1876, by the second section of the Supreme 
 Court of Judicature Act, 1875. 
 
 PART IV. 
 
 TRIAL AND PROCEDURE. 
 SECTION 56. References and Assessors. 
 
 Subject to any Rules of Court and to such 
 right as may now exist to have particular cases 
 submitted to the verdict of a jury, any question 
 arising in any cause or matter (other than a cri- 
 minal proceeding by the Crown) before the High 
 Court of Justice or before the Court of Appeal, 
 may be referred by the Court or by any Divisional 
 Court or Judge before whom such cause or matter 
 may be pending, for inquiry and report to any 
 official or special Referee, and the report of any
 
 118 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 such Referee may be adopted wholly or partially 
 by the Court, and may (if so adopted) be enforced 
 as a judgment by the Court. The High Court or 
 the Court of Appeal may also, in any such cause 
 or matter as aforesaid in which it may think it 
 expedient so to do, call in the aid of one or more 
 assessors specially qualified, and try and hear such 
 cause or matter wholly or partially with the assist- 
 ance of such assessors. The remuneration, if any, 
 to be paid to such special Referees or assessors 
 shall be determined by the Court. 
 
 This and the three following sections and s. 83, infra, 
 relate to the same subject matter the reference of questions 
 and of actions to official and special Referees. 
 
 They are founded on the following recommendations of 
 the Judicature Commissioners : 
 
 " It seems to us that it is the duty of the country to 
 provide tribunals adapted to the trial of all classes of cases, 
 and capable of adjusting the rights of litigant parties in 
 the manner most suitable to the nature of the questions to 
 be tried. 
 
 " We therefore recommend that great discretion should 
 be given to the Supreme Court, as to the mode of trial, and 
 that any questions to be tried should be capable of being 
 tried in any Division of the Court 
 " (1) by a Judge : 
 " (2) by a Jury : 
 "(3) by a Referee. 
 
 " The plaintiff should be at liberty to give notice of trial 
 by any one of these modes which he may prefer, subject to 
 the right of the defendant to move the Judge to appoint 
 any other mode. When the trial is to be by a Jury or by 
 Referee, a Judge, on application by either party, if he 
 think the questions to be tried are not sufficiently ascer- 
 tained upon the pleadings, should have power to order that 
 issues be prepared by the parties, and if necessary settled
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 119 
 
 by himself. The Judge should also, on the application of 
 either party, have power to direct that any question of law 
 should be first argued, that different questions of fact arising 
 in the same suit should be tried by different modes of trial, 
 and that one or more questions of fact should be tried before 
 the others. 
 
 " The system which, in all the Divisions of the Supreme 
 Court to which it can be conveniently applied, we would 
 suggest for the trial of matters suitable for trial by Re- 
 ferees, is as follows : 
 
 " We think that there should be attached to the Supreme 
 Court officers to be called official Referees, and that a Judge 
 should have power, at any time after the writ of summons, 
 and with or without pleadings, and generally upon such 
 terms as he may think fit, to order a cause, or any matter 
 arising therein, to be tried by a Referee ; and that, whenever 
 a cause is to be tried by a Referee, such trial should be by 
 one of these official Referees, unless a Judge otherwise 
 orders. We think, however, that a Judge should have 
 power to order such trial to be by some person not an official 
 Referee of the Court, but who upon being so appointed should 
 vro fid" vice be deemed to be and should act as if he were 
 an official Referee. The Judge should have power to direct 
 where the trial shall take place, and the Referee should be 
 at liberty, subject to any directions which may from time 
 to time be given by the Judge, to adjourn the trial to any 
 place which he may deem to be more convenient. 
 
 " The Referee should, unless the Judge otherwise direct 
 proceed with the trial in open Court, de die in diem, with 
 power, however, to adjourn the further hearing for any 
 cause which he may deem sufficient, to be certified under 
 his hand to the Court. 
 
 " The Referee should be at liberty, by writing under his 
 hand, to reserve, or pending the reference to submit any 
 question for the decision of the Court, or to state any facts 
 specially, with power to the Court to draw inferences ; and 
 the verdict should in such case be entered as the Court may 
 direct. In all other respects the decision of the Referee 
 should have the same effect as a verdict at Nisi Prius, 
 subject to the power of the Court to require any explanation 
 or reasons from the Referee, and to remit the cause or any
 
 120 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 part thereof for re-consideration to the same, or any other 
 Referee. The Referee should, subject to the control of the 
 Court, have full discretionary power over the whole or any 
 part of the costs of the proceeding before him."* 
 
 u Subject to any Rules of Court." The Rules of Court 
 relative to Referees will be found in Order XXXVI., Rules 
 2, 5, 30, 31, 32, 33 and 34 of the first Schedule to the 
 Supreme Court of Judicature Act, 1875. It will be seen, 
 on a perusal of them, that, like the sections of this Act 
 dealing with the same subject matter, they follow very 
 closely the recommendations and not unfrequently the 
 ipsissima verba of the Judicature Commission. 
 
 SECTION 57. Power to direct Trials before 
 Referees. 
 
 In any cause or matter (other than a criminal 
 proceeding by the Crown) before the said High 
 Court in which all parties interested who are 
 under no disability consent thereto, and also 
 without such consent in any such cause or matter 
 requiring any prolonged examination of docu- 
 ments or accounts, or any scientific or local 
 investigation which cannot, in the opinion of the 
 Court or a Judge, conveniently be made before a 
 jury, or conducted by the Court through its other 
 ordinary officers, the Court or a Judge may at 
 any time, on such terms as may be thought 
 proper, order any question or issue of fact or any 
 question of account arising therein to be tried 
 either before an official Referee, to be appointed 
 as hereinafter provided, or before a special 
 Heferee to be agreed on between the parties ; and 
 
 * First Eeport of the Judicature Commission, pp. 13, 14.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 121 
 
 any such special Referee so agreed on shall have 
 the same powers and duties and proceed in the 
 same manner as an official Referee. All such 
 trials before Referees shall be conducted in such 
 manner as may be prescribed by Rules of Court, 
 and subject thereto in such manner as the Court 
 or Judge ordering the same shall direct. 
 
 See Order XXXVI., Rules 2, 5, 30, 31, 32, 33, and 34 of 
 
 the first Schedule to the Supreme Court of Judicature Act, 
 1875. See also section 56, supra, and the note thereto, 
 and sections 58, 59 and 83, infra. 
 
 SECTION 58. Power of Referees and effect of 
 their Findings. 
 
 In all cases of any reference to or trial by 
 Referees under this Act the Referees shall be 
 deemed to be officers of the Court, and shall have 
 such authority for the purpose of such reference 
 or trial as shall be prescribed by Rules of Court 
 or (subject to such Rules) by the Court or Judge 
 ordering such reference or trial ; and the report 
 of any Referee upon any question of fact on any 
 such trial shall (unless set aside by the Court) be 
 equivalent to the verdict of a jury. 
 
 See sections 56 and 57, supra, and the note to s. 56, 
 and sections 59 and 83, infra. Also Schedule 1, Order 
 XXXVI., Rules 2, 5, 30, 31.' 32, 33, and 34 of the Supreme 
 Court of Judicature Act, 1875. 
 
 SECTION 59. Powers of Court with respect to 
 
 Proceedings before Referees. 
 With respect to all such proceedings before
 
 122 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Refer ees and their Reports, the Court or such 
 Judge as aforesaid shall have, in addition to any 
 other powers, the same or the like powers as are 
 given to any Court whose jurisdiction is hereby 
 transferred to the said High Court with respect 
 to references to arbitration and proceedings before 
 arbitrators and their awards respectively, by the 
 Common Law Procedure Act, 1854. 
 
 See sections 56, 57, and 58, supra, and the note to s. 
 56, and section 83, infra; and see also Schedule 1, Order 
 XXXVI., Rules 2, 5, 30, 31, 32, 33, and 34 of the Supreme 
 Court of Judicature Act, 1875. 
 
 The sections of the Common Law Procedure Act, 1854, 
 dealing with arbitrations, are ss. 3 to 17 inclusive. 
 
 SECTION 60. Her Majesty may establish District 
 Registries in the country for the Supreme 
 Court. 
 
 And whereas it is expedient to facilitate the 
 prosecution in country districts of such pro- 
 ceedings as may be more speedily, cheaply, and 
 conveniently carried on therein, it shall be lawful 
 for Her Majesty, by Order in Council, from time 
 to time to direct that there shall be District 
 Registrars in such places as shall be in such order 
 mentioned for districts to be thereby denned, from 
 which writs of summons for the commencement 
 of actions in the High Court of Justice may be 
 issued, and in which such proceedings may be 
 taken and recorded as are hereinafter mentioned ; 
 and Her Majesty may thereby appoint that any
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 123 
 
 Registrar of any County Court, or any Registrar 
 or Prothonotary or District Protkonotary of any 
 local Court whose jurisdiction is hereby trans- 
 ferred to the said High Court of Justice, or from 
 which an appeal is hereby given to the said 
 Court of Appeal, or any person who, having been 
 a District Registrar of the Court of Probate, or 
 of the Admiralty Court, shall under this Act 
 become and be a District Registrar of the said 
 High Court of Justice, or who shall hereafter be 
 appointed such District Registrar, shall and may 
 be a District Registrar of the said High Court 
 for the purpose of issuing such writs as aforesaid, 
 and having such proceedings taken before him 
 as are hereinafter mentioned. This section shall 
 come into operation immediately upon the passing 
 of this Act. 
 
 This section is amended by section 13 of the Supreme 
 Court of Judicature Act, 1875, by which it is provided 
 that two persons may be appoiinted joint District Regis- 
 trars, and that the Registrar of any inferior Court of Record 
 (other than a County Court) in any district shall be 
 qualified to be a District Registrar tor that district or 
 lor any part of it. The same section also provides that 
 " every District Registrar shall be deemed to be an officer 
 of the Supreme Court, and be subject, accordingly, to the 
 jurisdiction of such Court or of the Divisions thereof." 
 
 For a list of the local Courts whose jurisdiction is 
 transferred to the High Court of Justice, see section 16, 
 supra, and as to the Appellate Jurisdiction of the Court of 
 Appeal from local Courts, see ss. 18 (2) (3) and 45, 
 supra. 
 
 The scheme of establishing District Registries was thus
 
 124 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 introduced to the notice of the House of Lords by Lord 
 Selborne, C., in 1873.* " There is another subject with 
 which I have attempted to deal, and its object is to remove 
 what for twenty years and more has been represented as a 
 grievance by solicitors of Liverpool and other large towns. 
 These gentlemen have constantly urged that, to make a 
 measure perfect, means should be given, subject to the 
 control of the Court, to take formal proceedings, such as 
 giving out writs and the like, in local registries in the 
 country. This suggestion I have endeavoured to meet, and 
 in effect, all country registries over which the Court will 
 have control under this Bill will be made available for that 
 purpose. In many cases, I believe, the result may be 
 the saving of much expense."! 
 
 In the House of Commons an effort was made by 
 Mr. Lopes, Q.C., to get rid of the clauses relating to local 
 registries, on the ground that the District Registrars would 
 not be competent to discharge the judicial and contentious 
 jurisdiction confided to them by the Bill. " Matters now 
 dealt with by Judges and Masters would be dealt with by 
 the district registrar." The hon. gentleman said that, 
 although local solicitors favoured this local jurisdiction 
 with regard to the issue of writs, and dealing locally with 
 mere ministerial matters, they did not desire that 
 contentious and judicial business should be disposed of in 
 local registries. 
 
 Sir Richard Baggallay, the present Attorney-General, 
 referred to the provisions of clause 64, which are to the 
 effect that "all such proceedings as may and ought to 
 be taken in the High Court down to and in eluding" (in cer- 
 tain cases) " final judgment, may betaken before the Dis- 
 trict Registrar, "and he urged that the duties of the District 
 Registrar ought to be purely ministerial. 
 
 The Solicitor-Q-eneral (Sir George Jessel,now M.R.), said 
 he thought be could relieve his learned friends from some 
 of their apprehensions by pointing out that the powers to be 
 
 * Hansard's Parliamentary Debates, new series, vol. 214, pp. 347, 348. 
 t No further allusion to District Registries was made in the course of 
 the subsequent debates on the measure in the House of Lords.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 125 
 
 conferred upon District Eegistrars were to be subject to 
 Rules of Court.* 
 
 It will be seen, however, on referring to the Rules of 
 Court contained in the first Schedule to the Supreme 
 Court of Judicature Act, 1875, Order XXXV., that the 
 duties of a District Registrar are much more than minis- 
 terial. Thus, by Rule 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 be exercised by a Judge at Chambers, except such 
 as by these Rules a Master of the Queen's Bench, Com- 
 mon Pleas, or Exchequer Division is precluded from 
 exercising." In other words, the powers of a District 
 Registrar are co-extensive with those of a Master of any 
 of the Common Law Courts under the 30 and 31 Viet., c. 68, 
 and the Reg. Gen. Michaelmas Term, 1867 (as amended 
 by 0. LIV., R. 2).f Rule 1 practically repeats the provisions 
 of s. 64, infra. Under the present section, however, and 
 s. 1 3 of the Amending Act, the choice of District Registrars 
 is limited to Registrars of County Courts, or inferior Courts 
 of Record, Registrars and Prothonotaries, or District 
 Prothonotaries J of the Courts of the Counties Palatine, 
 and the Stannaries Courts, and District Registrars of the 
 Probate and Admiralty Courts, all of whom must have 
 had some experience. 
 
 This present section being expressly excepted from 
 section 2, supra, came in force on the 5th of August, 1873, 
 the day on which this Act received the Royal Assent. 
 
 It was anticipated by many country Solicitors that the 
 appointments under the Act would have been made imme- 
 diately on its passing. The first appointments under the 
 Act were not, however, made till the 13th of August, J 875. 
 See the Order hi Council, infra, and also the note to s. 13 of 
 the Amending Act. 
 
 SECTION 61.- Seals of District Registries. 
 In every such District Registry such seal shall 
 
 * Hansard's Parliamentary Debates, new series, vol. 217, pp. 182, 
 183, 184. 
 
 f See also the " Directions to the Masters of the Court ;" Hil. T., 
 18-53, as to fees of counsel and special pleaders; Day's Com. Law. Pro. 
 Acts, 534. 
 
 + See 32 and 33 Viet., c. 37.
 
 126 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 be used as the Lord Chancellor shall from time to 
 time, either before or after the time fixed for the 
 commencement of this Act, direct, which seal 
 shall be impressed on every writ and other docu- 
 ment issued out of or filed in such District 
 Registry, and all such writs and documents, and all 
 exemplifications and copies thereof, purporting to 
 be sealed with the seal of any such District 
 Registry, shall in all parts of the United Kingdom 
 be received in evidence without further proof 
 thereof.* 
 
 SECTION 62. Powers of District Registrars. 
 
 All such District Registrars shall have power 
 to administer oaths and perform such other duties 
 in respect of any proceedings pending in the said 
 High Court of Justice or in the said Court of 
 Appeal as may be assigned to them from time to 
 time by Rules of Court, or by any special order 
 of the Court. 
 
 The first Schedule, Order XXXV. of the Supreme Court 
 of Judicature Act, 1875, defines the duties of the District 
 Registrars (see note to s. 60). 
 
 SECTION 63. Fees to be taken ly District 
 Registrars. 
 
 The Lord Chancellor, with the sanction of the Treasury, may, either before 
 or after the commencement of this Act, fix, and may afterwards, with the like 
 samtion, from time to time alter, a Table of fees to be taken by such District 
 Registrars in respect of all business to be done under this Act ; and such fees 
 shall be received and collected by stamps, denoting in each case the amount of 
 the fee payable. The provisions of the " Courts of Justice (Salaries and 
 
 * See " Taylor on Evidence."
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 127 
 
 Fundsj Act, 1869," as to fees to be talcen by stamps, shall apply to the fees 
 to be received and collected by stamps under this Act. 
 
 This section is repealed by the Supreme Court of 
 Judicature Act, 1875, section 33, and the second Schedule 
 thereto. The substituted provisions will be found in s. 26 
 of the Supreme Court of Judicature Act, 1875. 
 
 SECTION 64. proceedings to be taken in District 
 Registries. 
 
 Subject to tbe Rules of Court in force for the 
 time being, writs of summons for the commence- 
 ment of actions in the High Court of Justice 
 shall be issued by the District Registrars when 
 thereunto required ; and unless any order to the 
 contrary shall be made by the High Court of 
 Justice, or by any Judge thereof, all such further 
 proceedings, including proceedings for the arrest 
 or detention of a ship, her tackle, apparel, furni- 
 ture, cargo, or freight, as may and ought to be 
 taken by the respective parties to such action in 
 the said High Court down to and including entry 
 for trial, or (if the plaintiff is entitled to sign final 
 judgment, or to obtain an order for an account by 
 reason of the non-appearance of the defendant) 
 down to and including final judgment, or an order 
 for an account may be taken before the District 
 Registrar, and recorded in the District Registry, 
 in such manner as may be prescribed by Rules of 
 Court ; and all such other proceedings in any such 
 action as may be prescribed by Rules of Court
 
 128 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 shall be taken and if necessary may be recorded 
 in the same District Registry. 
 
 See the Rules of Court in Orders V. and XXXV. of 
 Schedule 1 to the Supreme Court of Judicature Act, 1875. 
 See also the note to s. 60, supra, as to the magnitude of the 
 power conferred by this section on District Registrars. 
 
 SECTION 65. Power for Court to remove 
 proceedings from District Registries. 
 
 Any party to an action in which a writ of sum- 
 mons shall have been issued from any such District 
 Registry shall be at liberty at any time to apply, 
 in such manner as shall be prescribed by Rules 
 of Court, to the said High Court, or to a Judge 
 in Chambers of the Division of the said High 
 Court to which the action may be assigned, to 
 remove the proceedings from such District Regis try 
 into the proper Office of the said High Court ; 
 and the Court or Judge may, if it be thought fit, 
 grant such application, and in such case the pro- 
 ceedings and such original documents, if any, as 
 may be filed therein shall upon receipt of such 
 order be transmitted by the District Registrar 
 to the proper Office of the said High Court, 
 and the said action shall thenceforth proceed in 
 the said High Court in the same manner as if it 
 had been originally commenced by a writ of 
 summons issued out of the proper Office in 
 London ; or the Court or Judge, if it be thought 
 right, may thereupon direct that the proceedings
 
 SUPREME COURT OF JUDICATURE A.CT, 1873- 129 
 
 may continue to be taken in such District 
 Registry. 
 
 " In such manner as shall be prescribed by Rules of 
 Court." See Order XXXV. of the first Schedule to the 
 Supreme Court of Judicature Act, 1875. 
 
 SECTION 66. Accounts and Inquiries may be 
 referred to District Registrars. 
 
 It shall be lawful for the Court, or any Judge of 
 the Division to which any cause or matter pending 
 in the said High Court is assigned, if it shall be 
 thought fit, to order that any books or documents 
 may be produced, or any accounts taken or in- 
 quiries made, in the office of or by any such 
 District Registrar as aforesaid ; and in any such 
 case the District Registrar shall proceed to carry 
 all such directions into effect in the manner pre- 
 scribed ; and in any case in which any such 
 accounts or inquiries shall have been directed to 
 be taken or made by any District Registrar, the 
 report in writing of such District Registrar as 
 to the result of such accounts or inquiries may 
 be acted upon by the Court, as to the Court shall 
 seem fit. 
 
 By Order XXXIII of the first Schedule to the 
 Supreme Court of Judicature Act, 1875, the Court or a 
 Judge may, at any stage of the proceedings in a cause or 
 matter, direct any necessary inquiries or accounts to be 
 made or taken, notwithstanding that it may appear that 
 there is some special or further relief sought for, or some 
 special issue to be tried, or that it may be proper that the 
 cause or matter should proceed in the ordinary manner.
 
 130 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 SECTION 67. 30 8f 31 Viet., c. 142, ss. 5, 7, 8 and 
 
 10, to extend to actions in Sigh Court. 
 The provisions contained in the fifth, seventh, 
 eighth, and tenth sections of the County Courts 
 Acts, 1867,* shall apply to all actions commenced 
 or pending in the said High Court of Justice 
 in which any relief is sought which can be given 
 in a County Court. 
 
 Mr. Matthews, Q.C., in Committee on the Bill in the 
 Lower House, moved the omission of the fifth section of 
 the County Courts Act, 1867, on the ground that it would 
 "be unnecessary under the new procedure, as the question of 
 costs would he in the discretion of the Judge. t The 
 motion, however, was withdrawn, the Attorney-General 
 (Lord Coleridge) thinking it necessary to retain the 
 section. 
 
 The following are the sections referred to in the present 
 section : 
 
 "5. If in any action commenced after the passing of 
 this Act in any of Her Majesty's Superior Courts of record, 
 the plaintiff shall recover a sum not exceeding twenty 
 pounds if the action is founded on contract, or ten pounds 
 if founded on tort, whether by verdict, judgment by 
 default, or on demurrer, or otherwise, he shall not be 
 entitled to any costs of suit unless the Judge certify on 
 the record, that there was sufficient reason for bringing 
 such action in such Superior Court, or unless the Court or 
 a Judge at Chambers shall, by a rule or order, allow such 
 costs. 7. Where in any action of contract brought or 
 commenced in any of Her Majesty's Superior Courts of 
 Common Law the claim endorsed on the writ does not 
 exceed fifty pounds, or where such claim, though it 
 originally exceeded fifty pounds is reduced by payment, 
 an admitted set-off, or otherwise, to a sum not exceeding 
 
 * 30 & 31 Viet., c. 142. 
 
 t This was subsequently qualified as to trial by iury. (See Order 
 LV.)
 
 SUPREME COURT OF JUDICATURE ACT, 1373. 131 
 
 fifty pounds, it shall be lawful for the defendant in 
 the action, within eight days from the day upon which 
 the writ shall have been served upon him, if the 
 whole or part of the demand of the plaintiff be con- 
 tested, to apply to a Judge at Chambers for a summons to 
 the plaintiff to show cause why such action should not be 
 tried in the County Court or one of the County Courts in 
 which the action might have been commenced ; and on the 
 hearing of such summons the Judge shall, unless there be 
 good cause to the contrary, order such action to be tried 
 accordingly, and thereupon the plaintiff shall lodge the 
 original writ and the order with the Registrar of the County 
 Court mentioned in the order, who shall appoint a day for 
 the hearing of the cause, notice whereof shall be sent, by 
 post or otherwise, by the Registrar to both parties or their 
 attorneys, and the cause and all proceedings therein shall 
 be heard and taken in such County Court as if the action 
 had been originally commenced in such County Court ; 
 and the costs of the parties in respect of proceedings 
 subsequent to the order of the Judge of the Superior 
 Court shall be allowed according to the scale of costs in 
 use in the County Courts, and the costs of the proceedings 
 previously had in the Superior Court shall be allowed 
 according to the scale in use in such latter Court. 
 8. Where any suit or proceeding shall be pending in the 
 High Court of Chancery, which suit or proceeding might 
 have been commenced in a County Court, it shall be lawful 
 for any of the parties thereto to apply at Chambers to the 
 Judge to whose Court the said suit or proceeding shall be 
 attached, to have the same transferred to the County Court 
 or one of the County Courts in which the same might 
 have been commenced, and such Jude shall have power 
 upon such application, or without such application, if he 
 shall see fit, to make an order for such transfer, and there- 
 upon such suit or proceeding shall be carried on in the 
 County Court to which the same shall be ordered to be 
 transferred, and the parties thereto shall have the same 
 right of appeal that they would have had had the suit or 
 proceeding been commenced in the County Court. 10. It 
 shall be lawful for any person against whom an action 
 for malicious prosecution, illegal arrest, illegal distress,
 
 132 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 assault, false imprisonment, libel, slander, seduction, or 
 other action of tort may be brought in a Superior Court 
 to make an affidavit that the plaintiff has no visible means 
 of paying the costs of the defendant, should a verdict be 
 not found for the plaintiff, and thereupon a Judge of the 
 Court in which the action is brought shall have power to 
 make an order, that, unless the plain tiff shall, within a time 
 to be therein mentioned, give full security for the 
 defendant's cost to the satisfaction of one of the Masters 
 of the said Court, or satisfy the Judge that he has a cause 
 of action fit to be prosecuted in the Superior Court, all 
 proceedings in the action shall be stayed, or, in the event 
 of the plaintiff being unable or unwilling to give such 
 security, or failing to satisfy the Judge as aforesaid, that 
 the cause be remitted for trial before a County Court to be 
 therein named; and thereupon the plaintiff shall lodge 
 the original writ and the order with the Registrar of such 
 CouDty Court, who shall appoint a day for the hearing of 
 the cause, notice whereof shall be sent, by post or other- 
 wise, by the Registrar to both parties or their Attorneys ; 
 and the County Court so named shall have all the same 
 powers and jurisdiction with respect to the cause as if both 
 parties had agreed, by a memorandum signed by them, 
 that the said County Court should have power to try the 
 said action, and the same had been commenced by plaint in 
 the said County Court; and the cost of the parties in 
 respect of the proceedings subsequent to the order of the 
 Judge of the Superior Court shall be allowed according to 
 the scale of costs in use in the County Courts, and the 
 costs of the proceedings in the Superior Courts shall be 
 allowed according to the scale in use in such latter Court. 
 
 SECTION 68. Eules of Court may be made by 
 Order in Council before commencement of the 
 Act. Rules to be laid before Parliament, and 
 may be annulled on address from either House. 
 
 Subject to the provisions of this Act, Her Majesty may, at any time before 
 the commencement of this Act, by and with the advice of the Lord Chancellor, 
 the Lord Chief Justice of England, and the other Judges of the several
 
 133 
 
 Courts intended to be united and consolidated by this Act, or of the greater 
 number of them (of whom the Lord Chancellor and the Lord Chief Justice 
 of England shall be two), cause to be prepared Rules, in this Act referred to 
 'as Rules of Court, providing as follows : 
 
 (\..) For the regulation of the sittings of the High Court of Justice and 
 
 the Court of Appeal, and of any Divisional or other Courts thereof 
 
 respectively, and of the Judges of the said High Court sitting in 
 
 Chambers ; 
 
 f2.J For the regulation of Circuits, including the times and places at which 
 
 they are to be holden and the business to be transacted thereat ; 
 
 (Z.) For the regulation of all matters consistent with or not expressly 
 
 determined by the Rules contained in the Schedule hereto, which, under 
 
 and for the purposes of such last -mentioned Rules, require to be, or 
 
 Conveniently may be, defined or regulated by further Rules of Court ; 
 
 (.) And, generally, for the regulation of any matters relating to the 
 
 practice and procedure of the said Courts respectively, or to the duties 
 
 of the officers thereof, or to the costs of proceedings therein, or to the 
 
 conduct of civil or criminal business coming within the cognizance of 
 
 the said Courts respectively, for which provision is not expressly made 
 
 by this Act or by the Rules contained in the Schedule hereto. 
 
 All Rules of Court made in pursuance of this section shall be laid before 
 
 each House of Parliament within forty days next after the same are made, if 
 
 Parliament is then sitting, or if not, within forty days after the then next 
 
 meeting of Parliament ; and if an address is presented to Her Majesty by 
 
 either of the said Houses, within the next subsequent forty days on which 
 
 the said House shall have sat, praying that any such Rules may be annulled, 
 
 Her Majesty may thereupon by Order in Council annul the same ; and the 
 
 Rules so annulled shall thenceforth become void and of no effect, but without 
 
 prejudice to the validity of any proceedings which may in the meantime have 
 
 been taken under the same. This section shall come into operation immediately 
 
 on the passing of this Act. 
 
 This section is repealed by the Supreme Court of 
 Judicature Act, 1875, section 33, and the second Schedule 
 thereto. The substituted provisions will be found in 
 sections 17, 23, and 25 of the Supreme Court of Judica- 
 ture Act, 1875. That part of present section which 
 relates to laying "Rules of Court" before Parliament 
 within 40 days is re-enacted verbatim in the 25th section 
 of the Amending Act, except that it is extended to 
 " Orders in Council." The 23rd section of the Amending 
 Act contains elaborate provisions for the regulation of 
 Circuits in substitution for the second subsection of the
 
 134 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 present section. Section 93 of the present Act contains a 
 reference to this section in the words, " except as herein is 
 expressly directed." One of the causes of the suspension 
 of the Supreme Court of Judicature Act, 1873, and of the 
 withdrawal of the Supreme Court of Judicature Bill, 
 1874, was the delay in the preparation and publication of 
 the Rules, which this section empowered the Crown, on 
 the recommendation of a majority of the Judges, to make. 
 
 It will be perceived that this is one of the sections which 
 came into effect immediately on the passing of the Act. 
 (See s. 2, supra.) 
 
 The Rules framed under this section were never signed 
 by the Judges, and never came in force.* They are now 
 substantially embodied in the first Schedule to the Supreme 
 Court of Judicature Act, 1875. 
 
 SECTION 69. Rules in Schedule to regulate 
 Procedure till changed by other Rules after 
 commencement of Act. 
 
 The Rules contained in the Schedule to this Act (which shall be read and 
 taken as part of this Acf) shall come into operation immediately on the 
 commencement of this Act, and, as to all matters to which they extend, shall 
 thenceforth regulate the proceedings in the High Court of Justice and the 
 Court of Appeal respectively, unless and until, by the authority hereinafter 
 in that behalf provided, any of them may be altered or varied ; but such 
 Rvks, and also all Rules to be made before the commencement of this Act, as 
 hereinbefore mentioned, shall for all the purposes of this Act be Rules of 
 Court capable of being annulled or altered by the same authority by which 
 any other Rules of Court may be made, altered, or annulled after the com- 
 mencement of this Act. 
 
 This section is repealed by the Supreme Court of Judi- 
 cature Act, 1875, section 33, and the second Schedule 
 thereto. The substituted provisions will be found in section 
 16 of that Act. The present section is practically re- 
 enacted, but with the necessary alterations to adapt its 
 provisions to the first Schedule of the Amending A ct. 
 
 When introducing the present measure, Lord Selborne, 
 
 * They were, however, printed by order of the House of Commons, on 
 the motion of Sir William Harcourt, and can he obtained at Hansard's.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 135 
 
 C., referred to the Rules in the Schedule in the following 
 terms : 
 
 " It was thought by some to be a considerable defect 
 in the Bill of 1870, that it left the whole question of pro- 
 cedure to be determined afterwards by extrinsic authority. 
 In the main, rules of procedure must be so determined. 
 At the same time, nothing is more important than to 
 have a good start; and, profiting by the discussions of 
 1870, my predecessor* obtained the assistance of some 
 eminent members of the Judicature Commission, icho dreic up 
 a series of JRules embodying the recommendations of the 
 Commission on that subject, which, since they were first 
 framed, have been further considered and revised; and 
 those Rules will be found in the Schedule of the Bill. I 
 may say, generally, that they cover all the main points of 
 procedure, and their object is to get rid of long and expen- 
 sive pleadings, to establish a single uniform system, to 
 constitute the means of giving a decision when there is no 
 practical defence, and in many other respects to introduce 
 useful improvements." f 
 
 It maybe added, that the Rules of the Schedule, although 
 they are repealed by the Amending Act, are re-enacted, 
 almost verbatim, in the first Schedule to that Act, being 
 incorporated with the Rules of Court referred to in the 
 note to the last section. 
 
 SECTION 70. "Rules of Probate, Divorce, 
 
 Admiralty, and Bankruptcy Courts to be Rules 
 
 of the nigh Court. 
 
 All Rules and Orders of Court which shall be in force in the Court of 
 Probate, the Court for Divorce and Matrimonial Causes, the Admiralty 
 Court, and the London Court of Bankruptcy respectively at the time of the 
 commencement of this Act, except so far as they are hereby expressly varied, 
 shall remain and be in force in the High Court of Justice and in the Court of 
 Appeal respectively, in the same manner in all respects as if they had been 
 contained in the Schedule to this Act, until they shall respectively be altered 
 or annulled by any Rules of Court made after the commencement of this Act. 
 
 * Lord Hatherley, C. 
 f Hansard's Parliamentary Debates, New Series, vol. 214, p. 347.
 
 136 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 This section is repealed by the Supreme Court of 
 Judicature Act, 1875, section, 33, and the second Schedule. 
 The substituted provisions will be found in section 18 of 
 that Act. Section 70 of the Principal Act is re-enacted, 
 with the substitution of " appeals from the Chief Judge 
 in Bankruptcy " for " the London Court of Bankruptcy." 
 This alteration is rendered necessary by the severance of 
 the London Court of Bankruptcy from the High Court of 
 Justice under sections 9 and 33 and the second Schedule 
 to that Act, and the retention of appeals to the Court of 
 Appeal from the Chief Judge in Bankruptcy, provided by 
 section 17 of the present Act and saved by subsection 
 2 of section 9 of that Act. 
 
 See, as to the Rules and Orders of Court here referred 
 to, the Appendix II. to Browne's " Treatise on the 
 Principles and Practice of the Court for Divorce and 
 Matrimonial Causes;" Appendix II. to Coote and 
 Tristram's " Practice of the Court of Probate ; " the 
 Appendix to Williams and Bruce's " Jurisdiction and 
 Practice of the High Court of Admiralty ; " and pp. 507 
 and 598 of Roche and Hazlett's " Law and Practice in 
 Bankruptcy :" 2nd edition (1873). 
 
 SECTION 71. Criminal procedure, subject to 
 future Rules, to remain unaltered. 
 
 Subject to any Rules of Court to be made under and by virtue of this Act 
 the practice and procedure in all criminal causes and matters whatsoever in 
 the High Court of Justice and in the Court of Appeal respectively, in, 
 eluding the practice and procedure with respect to Crown Cases Reserved ^ 
 shall be the same as the practice and procedure in similar causes and matters 
 before the passing of this Act. 
 
 This section is repealed by the Supreme Court of Judi- 
 cature Act, 1875, section 33, and the second Schedule. 
 The substituted provisions will be found in section 19 of 
 that Act (see the notes to that section). The present 
 section is re-enacted, with the alterations necessary to adapt 
 it to the first Schedule of that Act.
 
 SUPREME COURT OF JUDICATURE ACTj 1873. 137 
 
 SECTION *72. Act not to affect Rules of Evidence 
 or Juries. 
 
 Nothing in this Act or in the Schedule hereto, or in any Rules of Court to 
 i>6 made by virtue hereof, save as far as relates to the power of the Court for 
 special reasons to allow depositions or affidavits to be read, shall affect the mode 
 of giving evidence by the oral examination of witnesses in trials by jury, or the 
 Rules of Evidence, or the law relating to jurymen or juries. 
 
 This section is repealed by the Supreme Court of Judica- 
 ture Act, 1875, section 33, and the second Schedule. The 
 substituted provisions will be found in section 20 of that 
 Act (see the notes to that section). The present section is 
 re-enacted, with the addition of the word " first " before 
 " Schedule." 
 
 SECTION 73. Saving of existing procedure of 
 Courts when not inconsistent with this Act or 
 Mules. 
 
 Save as by this Act, or by any Rules of Court (whether contained in the 
 Schedule to this Act, or to be made under the authority thereof} , is or shall 
 be otherwise provided, all forms and methods of procedure which at the com- 
 mencement of this Act were in force in any of the Courts whose jurisdiction is 
 hereby transferred to the said High Court, and to the said Court of Appeal 
 respectively, under or by virtue of any law, custom, General Orders, or Rules 
 whatsoever, and which are not inconsistent with this Act or with any Rules 
 contained in the said Schedule or to be made by virtue of this Act, may con- 
 tinue to be used and practised in the said High Court of Justice and the said 
 Court af Appeal respectively, in such and the like cases, and for such and the 
 like purposes, as those to which they would have been applicable in the 
 respective Courts of which the jurisdiction is so transferred, if this Act had 
 not passed. 
 
 This is one of the transition clauses of this Act. It is 
 repealed by the Supreme Court of Judicature Act, 1875, 
 section 33, and the second Sechedule. The substituted pro- 
 visions will be found in the 21st section of that Act. The 
 present section is re-enacted, with the alterations necessary 
 to adapt it to the Amending Act.
 
 138 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 SECTION 74. Power to make and alter Rules 
 after commencement of Act. 
 
 From and after the commencement of this Act, the Supreme Court may at 
 any time, with the concurrence of a majority of the Judges thereof present at 
 any meeting for that purpose held (of which majority the Lord Chancellor 
 shall be one), alter or annul any Rules of Court for the time being in force, or 
 make any new Mules of Court, for the purpose of regulating all such matters 
 of practice and procedure in the Supreme Court, or relating to the suitors or 
 officers of the said Court, or otherwise, as under the provisions of this Act are 
 or may be regulated by Rules of Court : Provided, that any Rule made in the 
 exercise of this power, whether far altering or annulling any then existing 
 Rule, or for any other purpose, shall be laid before both Houses of Parliament, 
 within the same time, and in the same manner and with the same effect in all 
 respects, as is hereinbefore provided with respect to the said Rules to be made 
 before the commencement of this Act, and may be annulled and made void in 
 the same manner as such last-mentioned Rules. 
 
 This section is repealed by the Supreme Court of 
 Judicature Act, 1875, section 33, and the second Schedule. 
 The substituted provisions will be found in section 17 of 
 that Act. As to the power to make llules before the 
 commencement of the Act, see section 68, supra. 
 
 SECTION 75. Councils of Judges to consider 
 Procedure and Administration of Justice. 
 
 A Council of the Judges of the Supreme Court, 
 of which due notice shall be given to all the said 
 Judges, shall assemble once at least in every year, 
 on such day or days as shall be fixed by the Lord 
 Chancellor, with the concurrence of the Lord Chief 
 Justice of England, for the purpose of considering 
 the operation of this Act and of the Rules of 
 Court for the time being in force, and also the 
 working of the several offices and the arrange- 
 ments relatiye to the duties of the officers of the 
 said Courts respectively, and of inquiring and
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 139 
 
 examining into any defects which may appear to 
 exist in the system of procedure or the adminis^ 
 tration of the law in the said Hisfn Court of 
 
 O 
 
 Justice or the said Court of Appeal, or in any 
 other Court from which any appeal lies to the 
 said IJigh Court, or any Judge thereof, or to the 
 said Court of Appeal : And they shall report 
 annually to one of Her Majesty's Principal Sec- 
 retaries of State what (if any) amendments or 
 alterations it would in their judgment be expe- 
 dient to make in this Act, or otherwise relating 
 to the administration of justice, and what provi- 
 sions (if any), which car not be carried into effect 
 without the authority of Parliament, it would be 
 expedient to make for the better administration 
 of justice. Any Extraordinary Council of the 
 said Judges may also at any time be convened 
 by the Lord Chancellor. 
 
 The Common Law Judges meet together from time to 
 time, for the purpose of consultation ; but it is apprehended 
 that such a meeting as that contemplated in this section, 
 of all the Judges, whether of Equity or Common Law, for 
 the expression " Supreme Court " includes the Judges of 
 the Court of Appeal as well as the Judges of the High 
 Court of Justice, is comparatively new. It is calculated 
 to produce the most beneficial effects, by breaking down 
 the barrier of prejudice which still subsists, it is to be 
 feared, between the sages of Equity and of the Common 
 Law. The Judges, if not the doctrines, of Equity and 
 Common Law, will be " fused" in this Council. 
 
 The 32nd section, supra, speaks of " Her Majesty in 
 Council " acting upon a " report or recommendation of the 
 Council of Judges of the Supreme Court;" and it will be 
 seen that the present section speaks of a repprt being sent
 
 140 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 to "one of Her Majesty's Principal Secretaries of State " by 
 the Council of Judges. The reader will be reminded of 
 the Consilium Regis, of which so frequent mention is 
 made in old statutes, by Lord Hale, Sir Edward Cokej 
 and other old law writers. Sir "William Blackstone says 
 that "when the King's Council is mentioned generally, 
 it must be definedj particularized, and understood secun- 
 dum suljectam materiam; and if the subject be of a legal 
 nature, then by the ' King's Council ' is understood his 
 Council for matters at law, namely, his Judges."* 
 
 SECTION 76. Acts of Parliament relating to 
 former Courts to be read as applying to Courts 
 under this Act. 
 
 All Acts of Parliament relating to the 
 several Courts and Judges, whose jurisdic- 
 tion is hereby transferred to the said High Court 
 of Justice and the said Court of Appeal respect- 
 ively, or wherein any of such Courts or Judges 
 are mentioned or referred to, shall be construed 
 and take effect, so far as relates to anything done 
 or to be done after the commencement of this 
 Act, as if the said High Court of Justice or the 
 said Court of Appeal, and the Judges thereof, 
 respectively, as the case may be, had been named 
 therein instead of such Courts or Judges whose 
 jurisdiction is so transferred respectively ; and 
 in all cases (not hereby expressly provided for) 
 in which, under any such Act, the concurrence 
 or the advice or consent of the Judge or any 
 Judges or of any number of the Judges, of any 
 one or more of the Courts whose jurisdiction is 
 
 * 1 Black. Com., 229 ; 1 Imt., 110 ; 3 Inst., 125.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 141 
 
 hereby transferred to the High Court of Justice 
 is made necessary to the exercise of any power 
 or authority capable of being exercised after the 
 commencement of this Act, such power or autho- 
 rity may be exercised by and with the concur- 
 rence, advice, or consent of the same or a like 
 number of Judges of the said High Court of Jus- 
 tice; and all general and other Commissions, 
 issued under the Acts relating to the Central 
 Criminal Court or otherwise, by virtue whereof 
 any Judges of any of the Courts whose jurisdic- 
 tion is so transferred may, at the commencement 
 of this Act, be empowered to try, hear, or deter- 
 mine any causes or matters, criminal or civil, 
 shall remain and be in full force and effect, unless 
 and until they shall respectively be in due course 
 of law revoked or altered. 
 
 This is one of the transition clauses of this Act. 
 
 PART V, 
 OFFICERS AND OFFICES. 
 
 SECTION 77. Transfer of existing Staff of 
 Officers to Supreme Court. 
 
 The Queen's Remembrancer and all Masters, 
 Secretaries, Registrars, -Clerks of Records 
 and Writs, Associates, Prothonotaries, Chief 
 and other Clerks, Commissioners to take oaths 
 or affidavits, Messengers, and other officers 
 and assistants at the time of the commencement 
 of this Act attached to any Court or Judge whose
 
 142 SUPREME COURT OF JUDICATURE ACT, 1373. 
 
 jurisdiction is hereby transferred to the High 
 Court, or to the Court of Appeal, and also all 
 Registrars, Clerks, officers, and other persons at 
 the time of the commencement of this Act 
 engaged in the preparation of commissions or 
 writs, or in the registration of judgments or any 
 other ministerial duties in aid of, or connected 
 with, any Court, the jurisdiction of which is 
 hereby transferred to the said Courts respectively, 
 shall, from and after the commencement of .jthis 
 Act, he attached to the Supreme Court, consisting 
 of the said High Court of Justice and the said 
 Court of Appeal : Provided, that all the duties 
 with respect to Appeals from the Court of Chan- 
 cery of the County Palatine of Lancaster, which 
 are now performed by the Clerk of the Council 
 of the Duchy of Lancaster, shall be performed by 
 Registrars, Taxing Masters, and other officers by 
 whom like duties are discharged in the Supreme 
 Court ; and the said Clerk of the Council of the 
 Duchy of Lancaster shall not be an officer at- 
 tached to the said Court. 
 
 The officers so attached shall have the same 
 rank and hold their offices by the same tenure 
 and upon the same terms and conditions, and 
 receive the same salaries, and, if entitled to pen- 
 sions, be entitled to the same pensions, as if this 
 Act had not passed, and any such officer who is 
 removeable by the Court to which he is now at- 
 tached shall be removeable by the Court to
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 143 
 
 Which he shall be attached under this Act, or by 
 the majority of the Judges thereof. 
 
 The existing Registrars and Clerks to the 
 
 CJ *J 
 
 Registrars in the Chancery Registrars' office 
 shall retain any right of succession secured to 
 them by Act of Parliament, so as to entitle them 
 in that office, or in any substituted office, to the 
 succession to appointments with similar or analo- 
 gous duties and with equivalent salaries. 
 
 The business to be performed in the High 
 Court of Justice and in the Court of Appeal 
 respectively^ or in any Divisional or other Court 
 thereof, or in the Chambers of any Judge thereof , 
 other than that performed by the Judges, shall 
 be distributed among the several officers attached 
 to the Supreme Court by this section in such 
 manner as may be directed by Rules of Court ; 
 and such officers shall perform such duties in 
 relation to such business as may be directed by 
 Rules of Court, with this qualification, that the 
 duties required to be performed by any officer 
 shall be the same, or duties analogous to those 
 which he performed previously to the passing of 
 this Act ; and, subject to such Rules of Court, 
 all such officers respectively shall continue to 
 perform the same duties, as nearly as may be, in 
 the same manner as if this Act had not passed. 
 
 All Secretaries, Clerks, and other officers 
 attached to any existing Judge who under the 
 provisions of this Act shall become a Judge of
 
 144 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 the High Court of Justice, or of the Court of 
 Appeal, shall continue attached to such Judge 
 and shall perform the same duties as those which 
 they have hitherto performed, or duties analogous 
 thereto ; and all such last-mentioned officers shall 
 have the same rank and hold their offices by the 
 same tenure, and upon the same terms and con- 
 ditions, and receive the same salaries, and, if 
 entitled to pensions, be entitled to the same pen- 
 sions, as if this Act had not passed : Provided 
 that the Lord Chancellor may, with the consent 
 of the Treasury, increase the salary of any existing 
 officer whose duties are increased by reason of the 
 passing of this Act. 
 
 Upon the occurrence of a vacancy in the office 
 of any officer coming within the provisions of 
 this section, the Lord Chancellor, with the con- 
 currence of the Treasury, may, in the event of 
 such office being considered unnecessary, abolish 
 the same, or may reduce the salary, or alter the 
 designation or duties thereof, notwithstanding 
 that the patronage thereof may be vested in an 
 existing Judge. Nothing in this Act contained 
 shall interfere with the office of Marshal attending 
 any Commissioner of Assize. 
 
 This is one of the transition clauses of this Act. 
 
 See s. 8 of the Amending Act, as to the office of 
 Registrar in Ecclesiastical and Maritime Causes. 
 
 Section 34 of the Supreme Court of Judicature Act, 
 1875, after reciting the last paragraph of this section, 
 enacts, that " upon the occurrence of any vacancy coming 
 within the provisions of the " present " section, an appoint-
 
 SUPREME COURT OF JUDICATURE ACT, 1873- 145 
 
 ment shall not be made thereto for the period of one month 
 without the assent of the Lord Chancellor, given with the 
 concurrence of the Treasury ; and, further, the Lord Chan- 
 cellor may, with the concurrence of the Treasury, suspend 
 the making any appointment to such office for any period 
 not later than the first day of January, One thousand eight 
 hundred and seventy -seven, and may, if it be necessary, 
 make provision in such manner as he thinks fit for the 
 temporary discharge, in the meantime, of the duties of 
 such office." 
 
 The principal statutes in connection with " the Queen's 
 Remembrancer " are as follows : As to the duties of 
 Queen's Remembrancer, 3 and 4 Will. IV., c. 99 ; as to the 
 appointment of Queen's Remembrancer, 22 and 23 Viet., 
 c. 21 ; as to the duties in revenue matters in Court of Ex- 
 chequer, 5 Viet., c. 5 ; 5 and 6 Viet., c. 86 ; as to the regu- 
 lation of the office, 22 and 23 Viet., c. 21 ; as to the approval 
 of Sheriffs of London and Middlesex, and render of rents 
 by the Corporation of London in the office of Queen's 
 Remembrancer, 22 and 23 Viet , c. 21 ; as to the salary of 
 Queen's Remembrancer, 29 and 30 Viet., c. 101 ; as to the 
 issue of writ of distringas from the office of Queen's 
 Remembrancer, 28 and 29 Viet., c. 104.* 
 As to the appointment, salaries, duties, and superannua- 
 tion of masters and their officers, see 7 Will. IV. and 1 
 Viet., c. 30 ; 17 and 18 Viet., c. 94 ; 22 Viet., c. 26, s. 14 ; 
 29 and 30 Viet., c. 101 ; 30 and 31 Viet., c. 68 ; and 32 
 and 33 Viet.,, c. 18. 
 
 "Secretaries" "Registrars." For the statutes refer- 
 ring to these officers, see the statutes collected by Baxter, 
 in his notes on the various Courts and Judges. 
 
 " Clerks of Records and Writs." The statutes referring 
 to these offices will be found collected by Baxter in Note 5, 
 " The High Court of Chancery of England ; " in the second 
 division of the list of statutes, " Officers and Income." 
 
 " Associates.'' The statutes referring to this officer will 
 be found among the statutes collected by Baxter in Note 
 36;, '' Commission of Assize ; " and Note 24, " Superior 
 Courts of Common Law." 
 
 * Wynne E. Baxter on the Judicature Act, 1873. 
 
 10
 
 146 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 " Prothonotaries." See statutes in Baxter, Note 34, 
 " Inferior Courts of Common Law ; " see also Note 98, 
 Prothonotary or District Prothonotary of Local Court." 
 " Chief or other Clerks." For the statutes referring to 
 the Chief Clerks and Clerks to Judges, see notes to the 
 various Courts and Judges, and note, " Superior Courts of 
 Common Law," in Baxter. As to the Clerk of Assize and 
 Clerk of the Crown, see Note 36, " Commission of Assize," 
 in Baxter. As to the Clerk of the Crown in Chancery 
 his duties, salary, and the fees to be taken by him, see 3 
 and 4 Will. IV., c. 84 ; 5 and 6 Will. IV., c. 47 ; 7 and 
 8 Viet., c. 77 ; 15 and 16 Viet., c. 87, s. 23 ; 17 and 18 
 Viet., c. 94 ; 32 and 33 Viet., c. 91.* 
 
 The principal statutes on the subject of " Commissioners 
 to take Oaths and Affidavits " are 29 Car. II., c. 5 ; 3 and 
 4 Will. IV., c. 42 ; 22 Viet., c. 16 ; 55 Geo: III., c. 15 ; 
 16 and 17 Viet., c.78 ; and 23 and 24 Viet., c. 127. 
 
 See further, as to officers, Order LX. of the first Schedule 
 to the Amending Act. 
 
 SECTION 78. Officers of Courts of Pleas at 
 
 Lancaster and Durham. 
 
 The existing Queen's Counsel of the County 
 Palatine of Lancaster shall for the future have 
 the same precedence in the county, and the exist- 
 ing Prothonotaries and District Prothonotaries, 
 and other officers of the Court of Common Pleas 
 at Lancaster and the Court of Pleas at Durham 
 respectively, and their successors, shall (subject 
 to Rules of Court) perform the same or the like 
 duties, and exercise the same or the like powers 
 and authorities in respect of all causes and 
 matters depending in those Courts respectively 
 at the commencement of this Act, and also in 
 respect of all causes and matters which may 
 
 The Clerk of the Council of the Duchy of Lancaster is Mr. J. U. D. 
 Engleheart, Lancaster Place, Waterloo Bridge, London.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 147 
 
 afterwards be commenced in the High Court 
 of Justice in the manner heretofore practised in 
 the said Court of Common Pleas at Lancaster 
 and the said Court of Pleas at Durham respec- 
 tively, as at the commencement of this Act may 
 lawfully be performed and exercised by them 
 respectively under any Acts of Parliament for 
 the time being in force with respect to the said 
 last-mentioned Courts respectively, or under any 
 other authority ; and all powers in respect of any 
 such Prothonotaries, District Prothonotaries, or 
 other officers of the Co art of Common Pleas at 
 Lancaster, which at the commencement of this 
 Act may be vested by law in the Chancellor of 
 the Duchy and County Palatine of Lancaster, 
 under any such Act of Parliament or otherwise, 
 and to which the concurrence of any other 
 authority may not be required, shall and may be 
 exercised after the commencement of this Act 
 by the Lord Chancellor ; and all the powers of 
 making or publishing any general rules or orders 
 with respect to the powers or duties of such 
 Prothonotaries, District Prothon'otaries, or other 
 officers of the said Court of Common Pleas at 
 Lancaster or the said Court of Pleas at Durham, 
 or with respect to the business of the said 
 Court respectively, or with respect to any fees 
 to be taken therein, or otherwise with refer- 
 ence thereto, which under any such Act as 
 aforesaid or otherwise by law may be vested in 
 the Chancellor of the Duchy and County Palatine
 
 148 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 of Lancaster with the concurrence of any Judg-es 
 or Judge, or in any other authority, shall be 
 exercised after the commencement of this Act in 
 the manner hereby provided with respect to 
 Rules of Court to be made under this Act, and 
 (in all cases in which the sanction of the Treasury 
 is now required) with the sanction of the Treasury; 
 and all provisions made by any such Acts afore- 
 said, or otherwise for or with respect to the re- 
 muneration of any such Prothonotaries, District 
 Prothonotaries, or other officers as aforesaid, 
 shall remain and be in full force and effect, until 
 the same shall be altered under the provisions of 
 this Act, or otherwise by lawful authority. 
 
 See section 99, infra. 
 
 This is one of the transition clauses of the Act. 
 
 Although, by section 99, the Counties of Lancaster and 
 Durham cease on the 1st of November, 1875, to be 
 Counties Palatine, so far as respects the issue of Com- 
 missions of Assize, and although, by section 16, the 
 jurisdiction vested at that date in the Court of Common 
 Pleas of Lancaster, and Court of Pleas of Durham, ig 
 transferred at that date to the High Court of Justice, the 
 then existing Queen's Counsel, Prothonotaries, District 
 Prothonotaries, and other officers of these two local courts 
 are to be protected in the possession of their respective 
 dignities and offices, and placed on substantially the same 
 footing as heretofore with regard to their " duties, powers, 
 and authorities " 
 
 The only "Palatine Silk " in Lancashire is Mr. J. J. 
 Aston.* The Prothonotaries and District Prothonotaries of 
 that County are Mr. T. E. Paget, Mr. E. Worthington, 
 and Mr. T. M. Shuttleworth. A list of the other "officers" 
 will be found at pp. 899 and 900 of the Law List. 
 
 * For many years the late Mr. Robert Sowler was the only " Lanca- 
 shire Q.C.," but he was made a Q.C. for England before his death.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 149 
 
 The only individual who appears to be deprived by this 
 section of any powers and authorities previously possessed 
 by him. is the Chancellor of the Duchy of Lancaster. 
 (See, however, s. 95, infra.} 
 
 Provisions as to the Prothonotaries' Fee Fund Account 
 of the County of Lancaster, and the salaries and expenses 
 connected with the offices of Prothonotaries and District 
 Prothonotaries under the Common Pleas at Lancaster 
 Amendment Act, 1869, will be found in section 27 of 
 the Supreme Court of Judicature Act, 1875. 
 
 SECTION 79. Personal officers of future Judges. 
 
 Each of the Judges of the High Court of 
 Justice, and of the Ordinary Judges of the Court 
 of Appeal, appointed respectively after the 
 commencement of this Act, and also such of the 
 Ordinary Judges of the Court of Appeal as have 
 no similar officers at the time of the commence- 
 ment of this Act, shall have such officers as here- 
 in-afier mentioned, who shall be attached to his 
 person as such Judge, and appointed and remov- 
 able by him. at his pleasure, and who shall 
 respectively receive the salaries hereinafter 
 mentioned: (that is to say), 
 
 To the Lord Chief Justice of England, the 
 Master of the Rolls, the Lord Chief Justice 
 of the Common Pleas, and the Lord Chief 
 Baron of the Exchequer, respectively, there 
 shall be attached a Secretary, whose salary 
 shall be five hundred pounds per annum, a 
 Principal Clerk, whose salary shall be four 
 hundred pounds per annum, and a Junior
 
 150 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Clerk, whose salary shall be two hundred 
 pounds per annum. To each of the other 
 Judges of the High Court of Justice, and to 
 each of the Ordinary Judges of the Court of 
 Appeal, there shall be attached a Principal 
 Clerk, whose salary shall be four hundred 
 pounds per annum, and, in the case of the 
 Judges of the High Court of Justice, a 
 Junior Clerk, whose salary shall be two 
 hundred pounds per annum. 
 
 Such one or more of the officers so attached to 
 each of the said Judges, as each Judge shall think 
 fit, shall be required, while in attendance on such 
 Judge, to discharge, without further remunera- 
 tion, the duties of Crier in Court or on Circuit, or 
 of Usher or Train Bearer. The duties of Chamber 
 Clerks, so far as relates to business transacted in 
 chamber by Judge? appointed after the commence- 
 ment of this Act, shall be performed by officers 
 of the Court in the permanent civil service of 
 
 the Crown. 
 
 See section 85, infra. 
 
 This section effects a considerable change in the position 
 and salaries of the officers attached to the person of the 
 Judges. (See the note to section 3f> of the Amending Act.) 
 
 SECTION 80. Provisions as to officers paid out of 
 
 fees. 
 
 Any existing officer attached to any existing 
 Court or Judge whose jurisdiction is abolished or 
 transferred by this Act, who is paid out of fees,
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 151 
 
 and whose emoluments are affected by the passing 
 of this Act, shall be entitled to prefer a claim to 
 the Treasury ; and the Treasury, if it shall con- 
 sider his claim to be established, shall have 
 power to award to him such sum, either by way 
 of compensation, or as an addition to his salary, 
 as it thinks just, ha,ving regard to the tenure of 
 office by such officer and to the other circum- 
 stances of the case. 
 
 This is one of the transition clauses of this Act. 
 
 SECTION 81. Doubts as to the status of o fleers to 
 
 be determined by Rule. 
 
 "Where a doubt exists as to the position under a 
 
 this Act of any existing officer attached to any $ 
 
 existing Court or Judge affected by this Act, such ^ 
 
 doubt may be determined by Rules of Court : 
 
 subject to this proviso, that such Rules of Court * 
 
 shall not alter the tenure of office, rank, pension 2 
 (if any), or salary of such officer, or require him H 
 
 to perform any duties other than duties analogous ** 
 to those which he has already performed. 
 
 This is one of the transition clauses of this A ct. 
 
 SECTION 82. Powers of Commissioners to 
 administer Oaths. 
 
 Every person who at the commencement of 
 this Act shall be authorised to administer oaths 
 in any of the Courts whose jurisdiction is hereby 
 transferred to the High Court of Justice shall be
 
 152 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 a Commissioner to administer oaths in all causes 
 and matters whatsoever which may from time to 
 time be depending in the said High Court or in 
 the Court of Appeal. 
 
 This is one of the transition clauses of this Act. By 
 section 84, infra,a.ll Commissioners to take oaths or affidavits 
 in the Supreme Courts are to be appointed by the Lord 
 Chancellor. (See, also, section 77.) 
 
 SECTION 83. Official Referees to be appointed. 
 
 There shall be attached to the Supreme Court 
 permanent officers to be called official Referees, 
 for the trial of such questions as shall under the 
 provisions of this Act be directed to be tried by 
 such Referees. The number and the qualifica- 
 tions of the persons to be so appointed from time 
 to time, and the tenure of their offices, shall be 
 determined by the Lord Chancellor, with the 
 concurrence of the Presidents of the Divisions of 
 the High Court of Justice, or a majority of them 
 (of which majority the Lord Chief Justice of 
 England shall be one), and with the sanction of 
 the Treasury. Such official Referees shall per- 
 form the duties entrusted to them in such places, 
 whether in London or in the country, as may 
 from time to time be directed or authorised by 
 any order of the said High Court, or of the Court 
 of Appeal ; and all proper and reasonable travel- 
 ling expenses incurred by them in the discharge 
 of their duties shall be paid by the Treasury out 
 of moneys to be provided by Parliament.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 153 
 
 See sections 56, 57, 58, and 59, and the note to section 
 56, supra. See also Order XXX VI., Rules 2, 5, 30, 31, 32, 
 33 and 34 of the first Schedule to the Supreme Court of 
 Judicature Act, 1875. 
 
 SECTION 84. Duties, appointment, and removal 
 of officers of Supreme Court. 
 
 Subject to the provisions in this Act contained 
 with respect to existing officers of the Courts 
 whose jurisdiction is hereby transferred to the 
 Supreme Csmrt, there shall be attached to the 
 Supreme Court such officers as the Lord Chan- 
 cellor with the concurrence of the Presidents of 
 the Divisions of the High Court of Justice, or the 
 major part of them, of which majority the Lord 
 Chief Justice of England shall be one, and with 
 the sanction of the Treasury, may from time to 
 time determine. 
 
 Such of the said several officers respectively as 
 may be thought necessary or proper for the per- 
 formance of any special duties, with respect either 
 to the Supreme Court generally, or with respect 
 to the High Court of Justice or the Court of 
 AppeaJ, or with respect to any one of the Divi- 
 sions of the said High Court, or with respect to 
 any particular Judge or Judges of either of the 
 said Courts, may, by the same authority, and with 
 the like sanction as aforesaid, be attached to the 
 said respective Courts, Divisions, and Judges 
 accordingly. 
 
 All officers assigned to perform duties with 
 respect to the Supreme Court generally, or
 
 154 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 attached to the High Court of Justice or the Court 
 of Appeal, and all Commissioners to take._oaths 
 or affidavits in the Supreme Court, shall be ap- 
 pointed by the Lord Chancellor. 
 
 All officers attached to the Chancery Division 
 of the said High Court, who have been heretofore 
 appointed by the Master of the Rolls, shall con- 
 tinue, while so attached, to be appointed by the 
 Master of the Rolls. 
 
 All other officers attached to any Division of 
 the said High Court shall be appointed by the 
 President of that Division. 
 
 All officers attached to any Judge shall be 
 appointed by the Judge to whom they are 
 attached. 
 
 Any officer of the Supreme Court (other than 
 such officers attached to the person of a Judge as 
 are hereinbefore declared to be removable by him 
 at his pleasure) may be removed by the person 
 having the right of appointment to the office 
 held by him, with the approval of the Lord Chan- 
 cellor, for reasons to be assigned in the order of 
 removal. 
 
 The authority of the Supreme Court over all 
 or any of its officers may be exercised in and by 
 the said High Court and the said Court of Appeal 
 respectively, and also in the case of officers at- 
 tached to any Division of the High Court by the 
 President of such Division, with respect to any 
 duties to be discharged by them respectively.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 155 
 
 See, as to the provisions of this Act with respect to 
 existing officers of the Courts, whose jurisdiction is trans- 
 ferred by it to the Supreme Court, sections 77, 78, 80, 81, 
 and 82, supra. Also see Order LX. of the first Schedule 
 to the Supreme Court of Judicature Act, 1875. As to 
 " Commissioners to take Oaths," see sections 79 and 82, 
 supra. " Officers removable at pleasure : " see section 79, 
 supra. 
 
 SECTION 85. Salaries and pensions of officers. 
 
 There shall be paid to every official Referee and 
 other salaried officer appointed in pursuance of 
 this Act such salary out of moneys to be provided 
 by Parliament as may be determined by the 
 Treasury with the concurrence of the Lord Chan- 
 cellor. 
 
 An officer attached to the person of a Judge 
 shall not be entitled to any pension or compensa- 
 tion in respect of his retirement from or the 
 abolition of his office, except so far as he may be 
 entitled thereto independently of this Act; but 
 every other officer to be hereafter appointed in 
 pursuance of this part of this Act, and whose whole 
 time shall be devoted to the duties of his office, 
 shall be deemed to be employed in the permanent 
 Civil Service of Her Majesty, and shall be 
 entitled, as such, to a pension or compensation 
 in the same manner, and upon the same terms 
 and conditions, as the other permanent civil 
 servants of Her Majesty are entitled to pension 
 or compensation. 
 
 " An officer attached to the person of a Judge shall 
 not be entitled to any pension." See now as to existing
 
 156 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Chamber Clerks, section 35 of the Supreme Court of Judi- 
 cature Act, 1875, framed by the Attorney-General upon 
 a new clause of the writer. 
 
 "Permanent Civil Servants." By section 79, supra, the 
 duties of Chamber Clerks (other than the existing Cham- 
 ber Clerks) shall be performed by officers of the Court in 
 permanent civil service of the Crown. 
 
 SECTION 86. Patronage not otherwise 
 provided for. 
 
 Subject to provisions hereinbefore contained, 
 any rights of patronage and other rights or powers 
 incident to any Court, or to the office of any Judge 
 of any Court whose jurisdiction is transferred to 
 the said High Court of Justice, or to the said 
 Court of Appeal, in respect of which rights of 
 patronage or other rights or powers no provision 
 is or shall be otherwise made by or under the 
 authority of this Act, shall be exercised as follows, 
 that is to say : if incident to the office of any 
 existing Judge, shall continue to be exercised by 
 such existing Judge during his continuance in 
 office as a Judge of the said High Court or of the 
 Court of Appeal, and after the death, resignation, 
 or removal from office of such existing Judge 
 shall be exercised in such manner as Her Majesty 
 may by Sign Manual direct. 
 
 This is one of the transition clauses of this Act. " Subject 
 to the provisions hereinbefore contained," refers to the pre- 
 ceding sections of this Part Part V of the Act. 
 
 SECTION 87. Solicitors and Attorneys. 
 From and after the commencement of this
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 157 
 
 Act all persons admitted as Solicitors, Attorneys, 
 or Proctors of or by law empowered to practise 
 in any Court, the jurisdiction of which is hereby 
 transferred to the High Court of Justice or the 
 Court of Appeal, shall be called Solicitors of the 
 Supreme Court, and shall be entitled to the same 
 privileges and be subject to the same obligations, 
 so far as circumstances will permit, as if this 
 Act had not passed ; and all persons who from 
 time to time, if this Act had not passed, would 
 have been entitled to be admitted as Solicitors, 
 Attorneys, or Proctors of or been by law em- 
 powered to practise in any such Courts, shall be 
 entitled to be admitted and to be called Solicitors 
 of the Supreme Court, and shall be admitted by 
 the Master of the Rolls, and shall, as far as cir- 
 cumstances will permit, be entitled as such 
 Solicitors to the same privileges and be subject to 
 the same obligations as if this Act had not 
 passed. 
 
 Any Solicitors, Attorneys, or Proctors to whom 
 this section applies shall be deemed to be officers 
 of the Supreme Court ; and that Court, and the 
 High Court of Justice, and the Court of Appeal 
 respectively, or any Division or Judge thereof, 
 may exercise the same jurisdiction in respect of 
 such Solicitors or Attorneys as any one of Her 
 Majesty's Superior Courts of Law or Equity might 
 previously to the passing of this Act have exer- 
 cised in respect of any Solicitor or Attorney 
 admitted to practise therein.
 
 158 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 This is one of the transition clauses of this Act. No 
 provision is made in this section for adapting the enact- 
 ments relating to the registration, &c., of Attorneys to the 
 changes introduced by it. In 1874 the writer, at the 
 instance of the Secretary of the Incorporated Law Society, 
 placed an amendment on the notice paper of the House of 
 Commons to remedy this omission. It has since been 
 remedied by the 14th Section of the Supreme Court of 
 Judicature Act, 1875. The effect of the omission was 
 considered to be that no person could be registered as an 
 Attorney after the commencement of the Act. The term 
 " Solicitor," used as a synonym for " Attorney," is at least 
 as old as the reign of Queen Elizabeth. In 1574 we find 
 amongst the " Orders for the Government of the Inns of 
 Court " one to the effect that " if any hereafter admitted 
 in Court practise as Attorneys or Solicitors they shall be 
 dismissed and expelled out of their Houses thereupon."* 
 The term "Attorney" simply is as old as the Norman 
 Conquest. There is, no doubt, some confusion in the minds 
 of persons superficially acquainted with the use of the latter 
 term in the Year-Books and other mediaeval repositories of 
 legal lore between an Attorney simply and an Attorney- 
 at-law. An Attorney was not a lawyer, but a substitute, 
 in the old law books. A father might appoint his son his 
 Attorney, a wife her husband, a convent its abbot or piior ; 
 the expression " appear by Attorney " meant simply the 
 substitution for the party in the cause of another person 
 to act in his turn, or stead, in his absence. This sense 
 of the word "Attorney" is still preserved in the ex- 
 pression, " Power of Attorney " a power to enable one 
 person to represent another in his absence. It is beside 
 the purpose of this book to trace how Attorneys eventually 
 became Attorneys-at-law.f The term having been intro- 
 duced originally in reference to the Common Law Courts 
 before the Court of Chancery sprang into power, the new 
 expression " Solicitor " was adopted in the time of the 
 Tudors to denote an Attorney-at-law who practised in the 
 
 * Dugdale's " Origines," p. 312. 
 
 t Any one who wishes to pursue the subject, which is a rather ab- 
 struse one, will find all the authorities collected in " The Legal Profes- 
 sion," published by Ridgway, 169, Piccadilly.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 159 
 
 Chancery. Courts. The term " Solicitor of the Supreme 
 Court " will henceforth be the style of Attorneys-at-law 
 and Solicitors alike. 
 
 PART VI. 
 
 JURISDICTION OB INFERIOR COURTS. 
 
 SECTION 88. Power by Order in Council to 
 
 confer jurisdiction on inferior Courts. 
 
 It shall he lawful for Her Majesty from time 
 to time by Order in Council to confer on any 
 inferior Court of civil jurisdiction the same juris- 
 diction in Equity and in Admiralty, respectively, 
 as any County Court now has, or may hereafter 
 have ; and such jurisdiction, if and when conferred, 
 shall be exercised in the manner by this Act 
 directed. 
 
 The expression " any inferior Courts of civil Jurisdic- 
 tion " would include such Courts as the Salford Hundred 
 Court of Record and the Passage Court at Liverpool. The 
 section, however, would embrace Courts of inferior juris- 
 diction which are not Courts of Record. The Acts which 
 confer Equity Jurisdiction on County Courts are the 28 and 
 29 Viet., c. 99 ; 30 and 31 Viet., c. 142. The Acts which 
 confer on County Courts Admiralty Jurisdiction are the 
 31 and 32 Viet., c. 71, and 32 and 33 Viet., c. 51. 
 
 By section 45, supra, appeals from County Courts are to 
 be brought to Divisional Courts of the High Court of Justice, 
 instead of being brought to three or four district appellate 
 tribunals. 
 
 SECTION 89. Powers of inferior Courts having 
 
 Equity and Admiralty jurisdiction. 
 Every inferior Court which now has or which
 
 160 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 may after the passing of this Act have jurisdic- 
 tion in Equity, or at Law and in Equity, and in 
 Admiralty respectively, shall, as regards all causes 
 of action within its jurisdiction for the time being, 
 have power to grant, and shall grant in any 
 proceeding before such Court, such relief, redress, 
 or remedy, or combination of remedies, either 
 absolute or conditional, and shall in every such pro- 
 ceeding give such and the like effect to every 
 ground of defence or counter-claim, equitable or 
 legal (subject to the provision next hereinafter 
 contained), in as full and ample a manner as 
 might and ought to be done in the like case by 
 the Hisrh Court of Justice. 
 
 O 
 
 The Judicature Commission thus expatiates, in its 
 First lleport,* on the evils of the old system in County 
 Courts : 
 
 "The present state of the County Courts may be 
 appropriately referred to, as exhibiting the strange work- 
 ing of a system of separate jurisdictions, even when exercised 
 by the same Court. 
 
 The County Court has jurisdiction in Common Law 
 cases, up to 50. in contracts, and to 10/. in torts. It has 
 also equitable jurisdiction in certain cases when the value of 
 the property in dispute does not exceed 500/., and in at 
 least one of such cases, namely, an administration suit, it is 
 now competent for any County Court Judge to restrain the 
 prosecution of actions brought by creditors in any of the 
 Superior Courts of Common Law . By an Act of Parliament 
 of last session some of the County Courts have also been in- 
 vested with Admiralty jurisdiction in a large class. of cases, 
 where the amount in dispute does not exceed, in some cases 
 150/., and in others 300/. There is an appeal in each class of 
 
 * P. 8.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 161 
 
 cases, within certain limits, to a Court of Common Law, 
 to the Court of Chancery, or to the Court of Admiralty. 
 But these jurisdictions, though conferred on the same Court 
 and the same Judge, still remain (like the Common Law 
 and Equity sides of the old Court of Exchequer) quite dis- 
 tinct and separate. The Judge has no power to administer 
 in one and the same suit any combination of the different 
 remedies which belong to his three jurisdictions, however 
 convenient or appropriate such redress may be. That can 
 only be accomplished, under the County Court system, by 
 three distinct suits brought in the same Court and before 
 the same Judge, carried on under three different forms of 
 procedure, and controlled by three different Courts of 
 Appeal. In this case, therefore, although we appear at first 
 sight to have obtained the great desideratum, which the 
 Common Law Commissioners call ' the consolidation of 
 all the elements of a complete remedy in the same Court,' 
 yet, as that remedy can only be had in three separate suits, 
 the evil is equally great." 
 
 The object of Part VI. is to enable inferior Courts within 
 their local and limited jurisdictions, to give the same com- 
 plete relief to their suitors, mutatis mutandis, as the Supreme 
 Court, within its wide sphere. This seems all the more 
 necessary now that the appeals from County Courts lie 
 under this Act, and appeals from inferior Courts of 
 Record will lie under s. 15 of the Amending Act, to the 
 High Court of Justice. If the practice below be not 
 assimilated to that above, how can the appeals be satisfac- 
 torily heard ? 
 
 SECTION 90. Counter claims in inferior Courts, 
 and transfers therefrom. 
 
 Where in any proceeding before any such in- 
 ferior Court any defence or counter-claim of the 
 defendant involves matter beyond the jurisdiction 
 of the Court, such defence or counter-claim shall 
 
 not affect the competence or the duty of the 
 11
 
 162 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Court to dispose of the whole matter in contro- 
 versy so far as relates to the demand of the 
 plaintiff and the defence thereto, but no relief 
 exceeding that which the Court has jurisdiction 
 to administer shall be given to the defendant 
 upon any such counter-claim : Provided always, 
 that in such case it shall be lawful for the High 
 Court, or any Division or Judge thereof, if it shall 
 be thought fit, on the application of any party to 
 the proceeding-, to order that the whole proceeding 
 be transferred from such inferior Court to the 
 High Court, or to any Division thereof; and in 
 such case the record in such proceeding shall be 
 transmitted by the Registrar, or other proper 
 officer, of the inferior Court to the said High 
 Court; and the same shall thenceforth be con- 
 tinued and prosecuted in the said High Court as 
 if it had been originally commenced therein. 
 
 The proceedings will be removed, it is to be presumed, 
 by certiorari. 
 
 SECTION 91. Rules of law to apply to inferior 
 Courts. 
 
 The several rules of law enacted and declared 
 by this Act shall be in force and receive effect in 
 all Courts whatsoever in England, so far as the 
 matters to which such Rules relate shall be 
 respectively cognizable by such Courts. 
 
 This section appears to have been added ex dbundanti 
 cauteld. As, however, s. 24, supra, is expressly limited to
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 163 
 
 the " causes and matters commenced in the High Court 
 of Justice," and the preamble to s. 25 alleges as a reason 
 for the rules which it lays down, the expediency of taking 
 advantage of the union of the Superior Courts to amend 
 the law. it might have been contended, especially in view 
 of the provisions of this part of the Act, that the 24th and 
 25th sections only applied to the Supreme Court, an inter- 
 pretation which, if adopted, must have led to some curious 
 and far from satisfactory results. 
 
 PART VII. 
 
 MISCELLANEOUS PROVISIONS. 
 
 SECTION 92. Transfer of Books and Papers to 
 Supreme Court. 
 
 All books, documents, papers, and chattels in 
 the possession of any Court, the jurisdiction of 
 which is hereby transferred to the High Court 
 of Justice or to the Court of Appeal, or of any 
 officer or person attached to any such Court, as 
 such officer, or by reason of his being so attached, 
 shall be transferred to the Supreme Court, and 
 sball be dealt with by such officer or person in 
 such manner as the High Court of Justice or the 
 Court of Appeal may by order direct ; and any 
 person failing to comply with any order made 
 for the purpose of giving effect to this section 
 shall be guilty of a contempt of the Supreme 
 Court. 
 
 This section would apply to, e.g., the debt attachment 
 book mentioned in section 66 of the Common Law Pro- 
 cedure Act, ] 854, and again in Order XL V , liule 9, of the 
 first Schedule to the Supreme Court of Judicature Act, 
 1875.
 
 164 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 SECTION 93. Saving as to Circuits, 8fc. 
 This Act, except as herein is expressly directed, 
 shall not, unless or until other commissions are 
 issued in pursuance thereof, affect the circuits of 
 the Judges or the issue of any Commissions of 
 Assize, Nisi Prius, Oyer and Terminer, Gaol 
 Delivery, or other commissions for the discharge 
 of civil or criminal "business on circuit or other- 
 wise, or any patronage vested in any Judges 
 going circuit, or the position, salaries or duties 
 of any officers transferred to the Supreme Court 
 who are now officers of the Superior Courts of 
 Common Law, and who perform duties in rela- 
 tion to either the civil or criminal business 
 transacted on circuit. 
 
 The words ft except as herein is expressly directed " 
 refer to section 68, subsection (2), supra, now repealed 
 by section 33 and the second Schedule to the Amending 
 Act. Section 23 of the Amending Act contains elaborate 
 provisions for the regulation of circuits. 
 
 SECTION 94. Saving as to Lord Chancellor. 
 
 This Act, except so far as herein is expressly 
 directed, shall not affect the office or position of 
 Lord Chancellor; and the officers of the 'Lord 
 Chancellor shall continue attached to him in the 
 same manner as if this Act had not passed ; and 
 all duties, which any officer of the Court of 
 Chancery may now he required to perform in aid 
 of any duty whatsoever of the Lord Chancellor,
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 165 
 
 may in like manner be required to be performed 
 by such officer when transferred to the Supreme 
 Court, and by his successors. 
 
 This is one of the transition clauses of this Act. " Ex- 
 cept so far as herein is expressly directed," appears to 
 point to the adjustment of the position of the Lord 
 Chancellor in the High Court and Court of Appeal as 
 originally planned by this Act. 
 
 SECTION 95. Saving as to Chancellor of 
 Lancaster. 
 
 This Act, except so far as is herein expressly 
 directed, shall not affect the offices, position, or 
 functions of the Chancellor of the County Pala- 
 tine of Lancaster. 
 
 The words " except so far as is herein expressly 
 directed," refer to section 78 of the present Act, supra. 
 
 SECTION 96. Saving as to Chancellor of the 
 Exchequer and Sheriffs. 
 
 The Chancellor of the Exchequer shall not be 
 a Judge of the High Court of Justice, or of the 
 Court of Appeal, and shall cease to exercise any 
 judicial functions hitherto exercised by him as 
 a Judge of the Court of Exchequer ; but save as 
 aforesaid he shall remain in the same position as 
 to duties and salary, and other incidents of his 
 office, as if this Act had not passed. The same 
 order and course with respect to the appointment 
 of sheriffs shall be used and observed in the 
 Exchequer Division of the said High Court as
 
 166 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 has been heretofore used and observed in the 
 Court of Exchequer. 
 
 It seems rather extraordinary to enact that " the Chan- 
 cellor of the Exchequer shall not be a Judge," -but a 
 reference to Madox will show that he was regarded as one 
 of the Barons of the Exchequer. There is a curious 
 entry in Madox'slist of Barones Scaccarii, Anno LI,* Hen. 
 IT I, from which the inference may be drawn very fairly that 
 the only Barons of the Exchequer in that year were the 
 Lord Treasurer and the Chancellor of the Exchequer. On 
 entering on his office the Chancellor of the Exchequer 
 took an oath that he would seal with the Exchequer seal 
 no judicial writ of any other Court besides the Exchequer 
 while tho Lord Chancellor was within twenty miles of 
 the place f where the Exchequer was holden.t The 
 Chancellor of the Exchequer is sometimes spoken of as 
 the Treasurer's Deputy, sometimes as an officer appointed 
 by the King to keep a sharp look out over him. || 
 
 Mr. Gladstone is, it is believed, the last Chancellor of 
 the Exchequer who has sat in that Court, but possibly Mr. 
 Lowe may have done so. The robe worn on such occasions 
 is a very splendid one. 
 
 The Judges, &c., nominate three persons, as sheriffs, for 
 each county, in the Exchequer. Black Comm. 341 ; 
 Bac. Abr. c. 
 
 SECTION 97. Saving as to Lord Treasurer and 
 
 office of the Receipt of Exchequer. 
 Nothing in this Act contained shall affect the 
 office of Lord Treasurer, except that any Lord 
 Treasurer shall not hereafter exercise any judicial 
 functions hitherto exercised by him as a Judge 
 of the Court of Exchequer ; and nothing in this 
 
 * 2 Madox' s Exchequer, p. 319, citing Mich. Memor., 51 Hen.. Ill,, 
 Rot. 2, b. 
 
 f The Exchequer then followed the King's person, 
 J Lib. Rub. Scacc., fol. 14 b., 2 Madox. 54, 
 1 Madox, 291. 
 || 2 Madox, 51.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 167 
 
 Act shall affect the office of the Receipt of the 
 Exchequer. 
 
 The Treasury has been so long in commission that the 
 very name of the " Lord Treasurer " has become obsolete. 
 It is necessary to ransack tbe laborious pages of Madox 
 to find out what "judicial functions" the Lord Treasurer 
 exercised. 
 
 He was one of the Barons, originally, of the Exchequer, 
 and seems to have regularly sat with them. 
 
 In the list of " Barones Scaccarii " the name of the 
 Thesauri arius repeatedly occurs. Indeed he may be re- 
 garded in some sense as having been Chief Baron, for close 
 writs were addressed, " to the Treasurer and Barons of the 
 Exchequer." He attested the writs issued for levying the 
 King's revenue, directed the entries made in the great roll, 
 and, in a word, " took care of the King's profit," the doing 
 of which frequently involved the exercise of judicial 
 functions. 
 
 In the 18th year of Edward 1st, the Treasurer was 
 associated with the Justices of the King's Bench in 
 determining causes. * 
 
 " The receipt of the Exchequer." See 4 and 5 Will. 1^, 
 c. 15. 
 
 SECTION 98. Provisions as to Great Seal being 
 
 in commission. 
 
 When the Great Seal is in commission, the 
 Lords Commissioners shall represent the Lord 
 Chancellor for the purposes of this Act, save that 
 as to the Presidency of the Court of Appeal, and 
 the appointment or approval of officers, or the 
 sanction to any order for the removal of officers, 
 or any other act to which the concurrence or 
 presence of the Lord Chancellor is hereby made 
 
 * Et dictum cst Justiciariis de Banco, quod, associate sibi Thesauriario 
 et vocatis partibus, faciant quod de IUTJ fuerit faciendum. Ryl. PI. Parl. 
 16, 17, anno 18 E. I ; 2 Madox, 44.
 
 168 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 necessary, the powers given to the Lord Chancellor 
 by this Act may be exercised hy the Senior Lord 
 Commissioner for the time being. 
 
 Some confusion might have arisen if the whole of the 
 Commissioners had been entitled to have a voice in the 
 decision of cases. The equity element would have been 
 proportionately increased 
 
 SECTION 99. Provision as to Commissions in 
 Counties Palatine. 
 
 From and after the commencement of this Act, 
 the Counties Palatine of Lancaster and Durham 
 shall respectively cease to be Counties Palatine, 
 so far as respects the issue of Commissions of 
 Assize, or other like Commissions, but not further 
 or otherwise ; and all such Commissions may be 
 issued for the trial of all causes and matters within 
 such counties respectively in the same manner in 
 all respects as in any other counties of England 
 and Wales. 
 
 See s. 78, supra, and also the Order in Council of 12th 
 August, 1875, infra. 
 
 SECTION 100. Interpretation of Terms. 
 
 In the construction of this Act, unless there is 
 anything in the subject or context repugnant 
 thereto, the several words hereinafter mentioned 
 shall have, or include, the meanings following ; 
 (that is to say,) 
 
 "Lord Chancellor" shall include Lord Keeper 
 of the Great Seal.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 169 
 
 " The High Court of Chancery " shall include 
 the Lord Chancellor. 
 
 "The Court of Appeal in Chancery" shall 
 include the Lord Chancellor as a Judge on 
 Re-hearing or Appeal. 
 
 " London Court of Bankruptcy " shall include 
 the Chief Judge in Bankruptcy. 
 
 " The Treasury " shall mean the Commissioners 
 of Her Majesty's Treasury for the time 
 being, or any two of them. 
 
 " Rules of Court " shall include forms. 
 
 " Cause " shall include any action, suit, or other 
 original proceeding between a plaintiff and 
 a defendant, and any criminal proceeding 
 by the Crown. 
 
 " Suit " shall include action. 
 
 " Action " shall mean a civil proceeding com- 
 menced by writ, or in such other manner 
 as may be prescribed by Rules of Court ; 
 and shall not include a criminal proceeding 
 by the Crown. 
 
 "Plaintiff" shall include every person asking 
 any relief (otherwise than by way of coun- 
 ter-claim as a defendant) against any other 
 person by any form of proceeding, whether 
 the same betaken by action, suit, petition, 
 motion, summons, or otherwise. 
 
 "Petitioner" shall include every person making 
 any application to the Court, either by
 
 170 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 . 4 
 
 petition, motion, or summons, otherwise 
 than as against any defendant. 
 
 " Defendant " shall include every person served 
 with any writ of summons or process, or 
 served with notice of, or entitled to attend 
 any proceedings. 
 
 "Party " shall include every person served with 
 notice of, or attending any proceeding, 
 although not named on the Record. 
 
 " Matter " shall include every proceeding in 
 the Court not in a cause. 
 
 " Pleading " shall include any petition or sum- 
 mons, and also shall include the statements 
 in writing of the claim or demand of any 
 plaintiff, and of the defence of any defen- 
 dant thereto, and of the reply of the plaintiff 
 to any counter-claim of a defendant. 
 
 " Judgment " shall include decree. 
 
 " Order " shall include rule. 
 
 " Oath " shall include solemn affirmation and 
 statutory declaration. 
 
 " Crown cases reserved " shall mean such ques- 
 tions of law reserved in Criminal Trials 
 as are mentioned in the Act of the eleventh 
 and twelfth years of Her Majesty's reign, 
 chapter seventy-eight. 
 
 " Pension " shall include retirement and super- 
 annuation allowance. 
 
 " Existing " shall mean existing at the time ap- 
 pointed for the commencement of this Act.
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 171 
 
 By Order LXII. of the first Schedule to the Supreme 
 Court of Judicature Act, 1 875, it is provided that the pro- 
 visions of this section shall apply to the Rules contained in 
 that Schedule. 
 
 As to the 11 and 12 Viet., c. 78, see s. 47, supra. The 
 only section to which the definition of " Crown cases re- 
 served " applied was the 71st, and it has been repealed, so 
 that the definition may be considered as having been 
 repealed as far as this Act is concerned ; but s. 19 of the 
 Amending Act re-enacts s. 71 of this Act, and that Act is 
 to be construed as one with this Act ; so that this definition 
 applies to s. 19 of the Amending Act.
 
 RULES UNDER THE SUPREME 
 
 SCHEDULE. 
 
 KULES OF PROCEDURE. 
 
 " The whole of the Schedule " is repealed by section 33 and 
 the second Schedule to the Supreme Court of Judicature Act, 
 1875, but is re-enacted, almost word for word, in the first 
 Schedule to the same Act. For the purpose of comparison, the 
 present Schedule has been retained, like the other repealed 
 parts of this Act, and the corresponding provisions of the first 
 Schedule to the Supreme Court of Judicature Act, 1875, have 
 been carefully noted under each Rule. The notes appended to 
 the Rules of the present Schedule will enable the legal prac- 
 titioner or law student, who has mastered the Rules of 1874, and 
 the Schedule to the Act of 1873, to work them in together, in 
 the luminous order of the first Schedule to the Act of 1875. 
 
 FORM OF ACTION. 
 Form of Action in High Court, 
 
 1. All actions which have hitherto been commenced by writ in the Superior 
 Courts of Common Law at Westminster, or in the Court of Common Pleas at 
 Lancaster, or in the Court of Pleas at Durham, and all suits which have 
 hitherto been commenced by bill or information in the High Court of Chancery, 
 or by a cause in rem or in personam in the High Court of Admiralty, or by 
 citation or otherwise in the Court of Probate, shall be instituted in the High 
 Court of Justice by a proceeding to be called an action. 
 
 All other proceedings in and applications to the High Court may, subject to 
 Ruks of Court, be taken and made in the same manner as they would have 
 been taken and made in any Court in which any proceeding or application of 
 the liks kind could have been taken or made if this Act had not passed. 
 
 This Rule is re-enacted, the first clause by Order I, Rule 1 
 
 * This has been a work of more labour than might at first sight appear, 
 as the present Schedule is destitute of any symmetrical arrangement, and 
 its disjecta membra can only be found, after diligent search, scattered up 
 and down among the Rules of Court drawn up in 1874 under the present 
 Act.
 
 COURT OF JUDICATURE ACT, 1873. 173 
 
 of the Amending Act, the second clause by Order VII, Rule 3 
 of that A ct. 
 
 WRIT OP SUMMONS. 
 Actions to be commenced by Writ. 
 
 2. Every action in the High Court shall be commenced by a writ of 
 summons, which shall be endorsed with a statement of the nature of the claim 
 made, or of the relief or remedy required in the action, and which shall specify 
 tJie Division of the High Court to which it is intended that the action should 
 be assigned. 
 
 This Rule is re-enacted by Order II, Rule 1 of the Amending 
 Act. 
 
 Form of Writ. 
 
 3. [Forms of writs and of endorsements thereon, applicable to the several 
 ordinary causes of action, shall be prescribed by Rules of Court, and] any costs 
 incurred by the use of any more prolix or other forms shall be borne by the 
 
 party using the same, unless the Court shall otherwise direct. 
 
 This Rule (except the part enclosed in brackets) is re-enacted 
 by Order II, Rule 2 of the Amending Act. " Occasioned " is 
 also substituted in that enactment for "incurred." 
 Acceptance of Service. 
 
 4. No service of writ will be required when the defendant, by his solicitor, 
 agrees to accept service, and enters an appearance. 
 
 This Rule is re-enacted by Order IX, Rule 1 of the Amending 
 Act. 
 
 Service of Writ. 
 
 5. When service is required the writ shall, wherever it is practicable, be 
 served in the manner in which personal service is now made, but if it be made 
 to appear to the Court or to a Judge that the plaintiff is from any cause unable 
 to effect prompt personal service, the Court or Judge may make such order for 
 substituted or other service, or for the substitution of notice for service, as may 
 seem just. 
 
 This Rule is re-enacted by Order IX, Rule 2 of the Amending 
 Act. See Order X, also of that Act. 
 
 Service out of the jurisdiction. 
 
 6. Whenever it appears Jit to the Court or to a Judge in a case in which the 
 cause of action has arisen within the jurisdiction, or ia properly cognizable 
 against a defendant within the jurisdiction, that any person out of thejurisdic-
 
 174 RULES UNDER THE SUPREME 
 
 tion of the Court should be served with the writ or other process of the Court, 
 the Court or Judge may order such service, or such notice in lieu of service, to 
 be made or given in stick manner and on such terms as may seem just. 
 
 See, as to the subject-matter of this Rule, Order XI, Rules 1 
 to 5 of the Amending Act. It is one of the few Rules not 
 expressly re-enacted. The substituted provisions define the 
 cases in which service out of the jurisdiction may take place, 
 and the conditions under which it is to be made. 
 
 Special endorsement of particulars of debts or liquidated demands. 
 See C. L. P. Act, 1852, ss. 25, 27. 
 
 7. In all actions where the plaintiff seeks merely to recover a debt or liqui- 
 dated demand in money, payable by the defendant, with or without interest, 
 arising upon a contract, express or implied, as, for instance, on a bill of 
 exchange, promissory note, cheque, or other simple contract debt, or on a bond 
 or contract under seal for payment of a liquidated amount of money, or on a 
 statute where the sum sought to be recovered is a fixed sum of money or in the 
 nature of a debt, or on a guaranty, whether under seal or not, where the claim 
 against the principal is in respect of such debt or liquidated demand, bill, 
 cheque, or note, or on a trust, the writ of summons may be specially endorsed 
 with the particulars of the amount sought to be recovered, after giving credit 
 for any payment or set-off. 
 
 In case of non-appearance by the defendant where the writ of summons is 
 so specially endorsed, the plaintiff may sign final judgment for any sum not 
 exceeding the sum endorsed on the writ, together with interest at the rate 
 specified, if any, to the date of the judgment, and a sum for costs, but it shall 
 be lawful for the Court or a judge to set aside or vary such judgment upon 
 such terms as may seem just. 
 
 Where the defendant appears on a writ of summons so specially endorsed, 
 tlie plaintiff may, on affidavit verifying the cause of action, and swearing that 
 in his belief 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 endorsed, 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 judgment accordingly. Permission to defend the action 
 may be granted to the defendant on such terms and conditions, if any, as the 
 Judge or Court may think just. 
 
 This Rule is re-enacted, the first clause by Order III, 
 Rule 6, the second clause by Order XIII, Rule 3, and the
 
 COURT OF JUDICATURE ACT, 1873. 175 
 
 third clause (except the last sentence) by Order XIV, Rule 1, 
 of the Amending Act. The last sentence of the third clause is 
 re-enacted by Order XIV, Rule 6. 
 
 Special endorsement of particulars in cases of account. 
 
 8. In all cases of ordinary account, as, for instance, in the case of a partner- 
 ship or executorship or ordinary trust account, where the plaintiff', in the first 
 instance, desires to have an account taken, the writ of summons shall be en- 
 dorsed with a claim that such account be taken. 
 
 In default of appearance on such summons, and after appearance, unless the 
 defendant, by affidavit or otherwise, satisfy the Court or a Judge that there is 
 some preliminary question to be tried, an order for the account claimed, with 
 all directions now usual in the Court^ of Chancery in similar cases, shall be 
 forthwith made. 
 
 This Rule is re-enacted, clause 1 by Order III, Rule 8, and 
 clause 2 by Order XV, Rule 1, of the Amending Act. 
 
 PARTIES. 
 Mis-joinder or non-joinder of parties. 
 
 9. No action shall be defeated by reason of the mis-joinder of parties, and 
 the Court may in every action deal with the matter in controversy so far as 
 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 
 application of either party, in the manner prescribed by Rules of Court, 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 plaintiffs or as defen- 
 dants, 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. No person 
 shall be added as a plaintiff suing without a next friend, or as the next friend 
 of a plaintiff under any disability, without his own consent thereto. All 
 parties whose names are so added as defendants shall be served with a sum- 
 mons or notice in such manner as may be prescribed by Rules of Court, or by 
 any special order, and the proceedings as against them shall be deemed to have 
 begun only on the service of such summons or notice. 
 
 This Rule is re-enacted by Order XVI, Rule 13, of the 
 Amending Act. 
 
 Representation of parties having same interest. 
 
 10. Where there are numerous parties having the same interest in one 
 action, one or more of such parties may sue or be sued, or may be authorised
 
 176 RULES UNDER THE SUPREME 
 
 by the Court to defend in such action, on behalf or for the benefit of all partiet 
 so interested. 
 
 , This Rule is re-enacted by Order XVI, Rule 9, of the 
 Amending Act. 
 
 11. Any two or more persons claiming or being liable as co-partners may 
 sue or be sued in the name of their respective firms, if any ; and any party to 
 an action may in such case apply by summons to a Judge in Chambers for a 
 statement of the names of the persons who are co-partners in any such firm, 
 to be furnished in such manner, and verified on oath or otherwise, as the 
 Judge may direct. 
 
 This Rule is re-enacted by Order XVI, Rule 10, of the 
 Amending Act. See Order XI, Rule 12, of the Amending Act. 
 
 Power to determine questions as against third parties. 
 
 12. Where a defendant is or claims to be entitled to contribution or indem- 
 nity, or any other remedy or relief over against any other person, or where from 
 any other cause it appears to the Court or a Judge that a question in the 
 action should be determined 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 Court or a Judge may on notice being given to such 
 last-mentioned person, in such manner and form as may be prescribed by Rules 
 of Court, make such order as may be proper for having the question so de- 
 termined. 
 
 This Rule is re-enacted by Order XV, Rule 17, of the 
 Amending Act. 
 
 Provision for case of doubt as to proper parties. 
 
 13. 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 may be prescribed by Rules of Court, or by any 
 special order, join two or more defendants, to the intent that in such action 
 the question as to which, if any, of the defendants is liable, and to what ex* 
 tent, may be determined as between all parties to the action. 
 
 This Rule is' re-enacted by Order XVI, Rule 6, of the 
 Amending Act. 
 
 Trustees, executors, $c. 
 
 14. 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 repre- 
 sentatives, without joining any of the parties beneficially int 'rested in the 
 trust or estate, and shall be considered as representing such parties in the
 
 COURT OF JUDICATURE ACT, 1873- 177 
 
 action ; but the Court or a Judge may, at any stage of the proceedings, order 
 any of suck parties to be made parties to the action, either in addition to or 
 in lieu of the previously existing parties thereto. 
 
 This Rule is re-enacted by Order XVI, Rule 7, of the 
 Amending Act. 
 
 Actions by married women and infants. 
 
 15. Married women and infants may respectively sue as plaintiffs by their 
 next friends, in the manner practised in the Court of Chancery before the 
 passing of this Act ; and infants may, in like manner, defend any action by 
 their guardians appointed for that purpose. 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 Judge may require. 
 
 This Rule is re-enacted by Order XVI, Rule 8, of the 
 Amending Act. 
 
 Parties where there are several liabilities on the same contract. 
 
 16. The plaintiff may, at his option, join as parties to the same action all 
 or any of the persons severally, or jointly and severally, liable on any one con- 
 tract, including parties to bills of exchange and promissory notes. 
 
 This Rule is re-enacted by Order XVI, Rule 5, of the 
 
 Amending Act. 
 
 Abatement. 
 
 17. An action shall not become abated by reason of the marriage, death, or 
 bankruptcy of any of the parties, if the cause of action survive or continue, 
 and shall not become defective by the assignment, creation, or devolution of 
 any estate or title pendente lite. 
 
 In case of the marriage, death, or bankruptcy, or devolution of estate by 
 operation of law, of any party to an action, the Court or Judge may, if it be 
 deemed necessary for the complete settlement of all the questions involved in 
 the action, order that the husband, personal representative, trustee, or other 
 successor in interest, if any, of such party be made a party to the action, or 
 be served with notice thereof in such manner and form as may be prescribed 
 by Rules of Court, and on such terms as the Court or Judge shall think just, . 
 and shall make such order for the disposal of the action <w may be just. 
 
 In case of an assignment, creation, or devolution of any estate or title 
 pendente lite, the action may be continued by or against the person to or upon 
 whom such estate or title has come or devolved. 
 
 The first clause of this Rule is re-enacted by Order L, Rule 1, 
 12
 
 178 RULES UXDER THE SUPREME 
 
 of the Amending Act ; the second clause by Order L, Rule 2 
 of that Act ; and the third clause by Order L, Rule 3 of the 
 same Act. 
 
 PLEADINGS. 
 Form of pleadings. 
 
 18. The following rules of pleading shall be substituted for those heretofore 
 used in the High Court of Chancery and in the Courts of Common /./', 
 Admiralty, and Probate. 
 
 Unless the defendant at the time of his appearance shall state that / 
 not require the delivery of a statement of complaint, the plaintiff shall within 
 such time and in such manner as shall be prescribed by Rules of Court, file 
 and. deliver to the defendant after his appearance a printed statement of his 
 complaint and of the relief or remedy to which he claims to be entitled. The 
 defendant shall within such time and in such manner as aforesaid file and 
 deliver to the plaintiff a printed statement of his defence, set-off, or counter- 
 claim (if any), and the plaintiff shall in like manner file and deliver a printed 
 statement of his reply (if any) to such defence, set-off, or counter-claim. Such 
 statements shall be as brief as the nature of the case will admit, and the Court 
 in adjusting the costs of the action shall inquire at the instance of any party 
 into any unnecessary prolixity, and order the costs occasioned by such pro! >. fit y 
 to be borne by the party chargeable with the same. 
 
 A demurrer to any statement may be filed in such manner and form as mat/ 
 be prescribed by Rules of Court. 
 
 The Court or a Judge may, at any stage of the proceedings, allow cither 
 party to alter his statement of claim or defence or reply, or may order to be 
 struck out or amended any matter in such statements respectively which may 
 be scandalous, or which may tend to prejudice, embarrass, or delay the fair 
 trial of the action, and all such amendments shall be made as may be necessary 
 for the purpose of determining the real questions or question in controversy 
 between the parties. 
 
 The first clause of this Rule is re-enacted by Order XIX, 
 Rule 1, of the Amending Act. The second clause is re-enacted 
 by Order XIX, Rule 2 of that Act. The fourth clause is 
 re-enacted by Order XXVII, Eule 1 of the same Act. The 
 third clause is the only one relating to demurrers in the Sche- 
 dule to the Principal Act. Ample provisions relating to 
 demurrers will be found in Order XXVIII of the Amending 
 Act. 
 
 Power to settle issues. 
 
 19. Where in any action it appears to a Judye that the statement of claim or
 
 COURT OF JUDICATURE ACT, 1873. 179 
 
 defence or reply does not sufficiently disclose the issues of fact in dispute 
 between the parties, he may direct the parties to prepare issues, and such issues 
 shall, if the parties differ, be settled by the Judge. 
 
 Tliis Rule is re-enacted by Order XXVI of the Amending 
 Act. 
 
 Counter-claims by defendant. 
 
 20. A defendant may set off, or set up, by ivay of counter-claim against the 
 claims of the 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 dawn in a cross action, so as to enable the Court to 
 pronounce a final judgment in the same action, both on the original and on 
 the cross claim. Hut the Court or a Judge 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 
 ought not to be allowed, refuse permission to the defendant to avail himself 
 thereof. 
 
 This Rule is re-enacted by Order XIX, Rule 3, of the 
 Amending Act. 
 
 Poicer to give judgment for defendant for balance under counter-claim. 
 
 21. Where in any action a set-off or counter-claim is established as a 
 defence against the plaintiffs claim, the 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 defendant such relief as he may be entitled to upon 
 the merits of the case. 
 
 This Rule is re-enacted by Order XXII, Rule 10, of the 
 Amending Act. 
 
 Joinder of several causes of action. 
 
 22. Subject to any Rules of Court, the plaintiff may unite in the same 
 action and in the same statement of claim several causes of action, but if it 
 appear to the Court or a Judge that any such causes of action cannot be con- 
 veniently 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. 
 
 This Rule is re-enacted by Order XVII, Rule 1, of the 
 Amending Act. 
 
 23.* It shall not be necessary that every defendant to any action shall be 
 interested as to all the relief thereby prayed for, or as to every cause of action 
 included therein ; but the Court or a Judge may make such order as may 
 
 * This Rule has no marginal note.
 
 180 RULES UNDER THE SUPREME 
 
 appear just to prevent any defendant from being embarrassed or put to expense 
 by being required to attend any proceedings in such action in which he may 
 have no interest. 
 
 This Rule is re-enacted by Order XVI, Rule 4, of the 
 Amending Act. 
 
 Power for Court to raise preliminary questions of law in an action. 
 
 24. If it appear to the Court or a Judge, either from the statement of 
 claim or defence or reply or otherwise, that there is in any action a question 
 of law which it would be convenient to have decided before any evidence it 
 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 make an order 
 accordingly, and may direct 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, or as may be prescribed by Rules of Court, and all 
 such further proceedings as the decision of such question of law may render 
 unnecessary may thereupon be stayed. 
 
 This Rule is re-enacted by Order XXXIV, Rule 2, of the 
 Amending Act. 
 
 DISCOVERY. 
 Right of discovery on interrogatories. 
 
 25. Subject to any Rules of Court, a plaintiff in any action shall be entitled 
 to exhibit interrogatories to, and obtain discovery from, any defendant, and 
 any defendant shall be entitled to exhibit interrogatories to, and obtain dis- 
 covery from, a plaintiff or any other party. Any party shall be entitled to 
 object to any interrogatory on the ground of irrelevancy, and the Court or a 
 Judge, if not satisfied that such interrogatory is relevant to some issue in the 
 cause, may allow such objection. No exceptions shall be taken to any answer, 
 but the sufficiency or otherwise of any answer objected to as insufficient shall 
 be determined by the Court or a Judge in a summary way. 
 
 The Court in adjusting the costs of the action shall at the instance of any 
 party inquire or cause inquiry to be made into the propriety of exhibiting 
 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 occasioned by the said interroga- 
 tories and the answers thereto shall be borne by the party in fault. 
 
 This Rule is re-enacted, the third clause by Order XXXI, 
 Rule 9, the fourth clause by Order XXXI, Rule 2, the 
 first clause (substantially) by Order XXXI, Rule 1, and the 
 second clause (substantially) by Order XXXI, Rule 5, of 
 the Amending Act.
 
 COURT OF JUDICATURE ACT, 1873. 181 
 
 Production of documents pleaded or proved. 
 
 26. Every party to an action or other proceeding shall be entitled, at any time 
 before or at the hearing thereof, by notice in writing, to, give notice to any 
 other party, in whose pleadings or affidavits 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 
 party not complying with such notice shall not afterwards be at liberty to put 
 any such document in evidence 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. 
 
 This Rule is re-enacted by Order XXXI, Rule 14, of the 
 Amending Act. 
 
 Discovery as to documents. 
 
 27. 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 question in such suit 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. 
 
 This Rule is re-enacted by Order XXXI, Rule 11, of the 
 
 Amending Act. 
 
 PLACE OF TRIAL. 
 Place of Trial. 
 
 28. There shall be no local venue for the trial of any action, but when the 
 plaintiff' proposes to have the action tried elsewhere than in Middlesex, he 
 shall in his statement of claim name the county or place in which he pro- 
 poses that the action shall be tried, and the action shall, unless a Judge other- 
 wise 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, be the county of Middlesex. Any order of a Judge as to 
 such place of trial, may be discharged or varied by a Divisional Court of the 
 High Court. 
 
 This Rule is re-enacted by Order XXXVI, Rule 1, of the 
 
 Amending Act. 
 
 List for trials in London and Middlesex. 
 
 29. The list or lists of actions for trial at the sittings in London and Mid- 
 dkscx respectively shall be prepared and the actions shall be allotted for trial 
 in such manner at may be prescribed by Rules of Court, without reference to 
 the division of the High Court to which such actions may be attached.
 
 182 RULES UNDER THE SUPREME 
 
 This Kule is re-enacted by Order XXXVI, Rule 16, of the 
 Amending Act. 
 
 MODE OF TRIAL. 
 Mode of trying actions. 
 
 30. Actions shall be tried and heard either before a Judge or Judges, or 
 before a Judge sitting with assessors, or before a Judge and Jury, or before an 
 official or special Referee, with or without assessors. 
 
 This Rule is re-enacted by Order XXXVI, Rule 2, of the 
 
 Amending Act. 
 
 Notice of mode of trial to be given. 
 
 31. The plaintiff may give notice of trial by any of the modes aforesaid, but 
 the defendant may, upon giving notice, within stick time as may be fixed by 
 Rules of Court, that he desires to have any issues of fact tried before a Judge 
 and Jury, be entitled to have the same so tried, or he may apply to the Court or 
 a Judge for an order to have the action tried in any other of the said ways, 
 and in such case the mode in which the action is to be tried or heard shall be 
 determined by such Court or Judge. 
 
 This Rule is (substantially) reproduced by Rules 3 and 4 of 
 Order XXXVI of the Amending Act. 
 
 Different questions arising in same action may be tried in different ways. 
 
 32. In any action the Court or a Judge may, at any time or from time to 
 time, order that different questions of fact arising therein be tried by different 
 modes of 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. 
 
 This Rule is re-enacted by Order XXXVI, Rule 6, of the 
 Amending Act. 
 
 Trials by jury. 
 
 33. Every trial of any question or issue of fact by a jury shall be held before 
 n single Judge, unless such trial be specially ordered to be held before two or 
 nore Judges. 
 
 This Rule is re-enacted by Order XXXVI, Rule 7, of the 
 Amending Act. 
 
 Proceedings before an official Referee. 
 
 34. Where an action or matter, or any question in an action or matter, is 
 referred to a Referee, he may, subject to the order of the Court or a Judge, 
 hold the trial at or adjourn it to any place which he may deem most convenient, 
 nd have any inspection or view, cither by himself or with his assessors (if any], 
 which he may d-eem expedient for the better disposal of the controversy before 
 him. He shall, unless otherwise directed by the Court or a Judge, proceed
 
 COURT OF JUDICATURE ACT, 1873. 183 
 
 with the trial in open Court, de die in diem, in a similar manner as in actions 
 tried by a jury. 
 
 This Eule is re-enacted by Order XXXVI, Rule 30, of the 
 
 Amending Act. 
 
 Effect of decision of Referee. 
 
 35. The Referee may, before the conclusion of any trial before him, or by 
 his report under the reference made to him, submit any question arising therein 
 for the decision of the Court, or state any facts specially, with power to the 
 
 Court to draw inferences therefrom, and in any such case the order to be made 
 on such submission or statement shall be entered as the Court may direct ; and 
 the Court shall have power to require any explanation or reasons from the 
 Referee, and to remit the action or any part thereof for re-trial or further 
 consideration to the saint or any other Referee. 
 
 This Eule is re-enacted by Order XXXVI, Rule 34, of the 
 Amending Act. 
 
 EVIDENCE. 
 Mode of giving evidence at trials. 
 
 36. In the absence of any agreement between the parties, and subject to 
 any Rules of Court applicable to any particular class of cases, the witnesses 
 at the trial of any cause or at any assessment of damages, shall be examined 
 viva voce and in open Court, but the Court or a Judge may at any time for 
 sufficient reason order that any particular fact or facts may be proved by 
 affidavit, or that the affidavit of any witness may be read at the hearing or 
 trial, on such conditions as the Court or Judge may think reasonable, or that 
 any witness whose attendance in court ought for some sufficient cause to be dis- 
 pensed with, be examined by interrogatories or otherwise before a Commis- 
 sioner or examiner ; provided that where it appears to the Court or Judge 
 that the other party bond fide desires the production of a witness for cross- 
 examination, and that such witness can be produced, an order shall not be 
 made authorising the evidence of such witness to be given by affidavit. 
 
 This Rule is re-enacted by Order XXXVII, Rule 1, of the 
 Amending Act. 
 
 Evidence at interlocutory applications. 
 
 37. Upon any interlocutory application evidence may be given by affidavit ; 
 but the Court or a Judge may, on the application of either party, order the 
 attendance for cross-examination of the person making any such affidavit. 
 
 This Rule is re enacted by Order XXXVII, Rule 2, of {be 
 Amending Act.
 
 184 RULES USDER THE SUPREME 
 
 Matter of affidavits. 
 
 38. Affidavits shall be confined to such facts as the witness is able of his 
 own knowledge to prove, except on interlocutory motions, on ivhich statements 
 as to his belief, with the grounds thereof, may be admitted. The costs of 
 every affidavit which shall unnecessarily set forth matters of hearsay, or argu- 
 mentative matter, or copies of or extracts from documents, shall be paid by the 
 party filing the same. 
 
 This Rule is re-enacted by Order XXXVII, .Rule 3, of the 
 .Amending Act. 
 
 Admissions. 
 
 39. Any party to an action may give notice, by his own statement or other- 
 wist, 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. 
 
 Either party may call upon the other party to admit any document, saving 
 > all just exceptions; and 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 unless such notice be 
 given, except where the omission to give the notice is, in the opinion of the 
 taxing officer, a saving of expense. 
 
 The first clause of this Rule is re-enacted by Order XXXII, 
 Rule 1, of the Amending Act ; the second clause by Order 
 XXXII, Rule 2 of that Act. 
 
 The second clause of the Rule is copied verbatim from the 
 Common Law Procedure Act, 1852, Section 117. 
 
 INTERLOCUTORY ORDERS AND DIKECTIONS, 
 Power for party to apply for order before termination of action. 
 
 40. Any party to an action may at any stage thereof apply to the Court 
 or a Judge for such order as he may, upon any admissions of fact in the 
 pleadings, be entitled to, without waiting for the determination of any other 
 question between the parties. 
 
 This Rule is re-enacted by Order XL, Rule 11 (clause 1), of 
 the Amending Act. 
 
 Power to transfer questions arising in actions. 
 
 41. The Lord Chancellor, with the concurrence of the Lord Chief Justice 
 of England, may order any question of law or of fact which may arise in any 
 action or matter to be transferred from any Judge to any other Judge, or tf 
 4* tried or heard by any other Judge of the taid High Court, and may confer
 
 COURT OF JUDICATURE ACT, 1873. 185 
 
 on such Judge power to deal with the whole or any part of the matters in 
 controversy. 
 
 This Rule is substantially reproduced by Order LI, Rules 1 
 and 2, of the Amending Act. 
 
 Accounts and enquiries. 
 
 42. The Court or a Judge may, at any stage of the proceedings in an action 
 or matter, direct any necessary inquiries or accounts to be made or taken, not- 
 withstanding that it may appear that there is some special or further relief 
 sought for or some special matter to be tried, as to which it may be proper 
 that the cause should proceed in the ordinary manner. 
 
 This Rule is re-enacted by Order XXXIII of the Amending 
 Act 
 
 Interim orders as to subject matter of litigation. 
 
 43. When by any contract a primdfacie case of liability is established, and 
 there is alleged as matter of defence a right to be relieved wholly or partially 
 
 from such liability, the Court or a Judge may make an order for the preser- 
 vation or interim custody of the subject-matter of the litigation, or may order 
 that the amount in dispute be brought into Court or otherwise secured. 
 
 This Rule is re-enacted by Order LII, Rule 1, of the Amend- 
 ing Act. 
 
 Power to make orders for sale of goods. 
 
 44. It shall be lawful for the Court or a Judge, on the application of any 
 party to any action, to make any order for the sale, by any person or persons 
 named in such order, and in such manner, and on such terms as to the Court 
 or Judge may seem desirable, of any goods, wares, or merchandise which may 
 be of a perishable nature or likely to injure from keeping, or which for any 
 other just and sufficient reason it may be desirable to have sold at once. 
 
 This Rule is re-enacted by Order LII, Rule 2, of the 
 Amending Act. 
 
 Power for Court to make interim orders as to preservation or examination 
 of property, examination of witnesses, $e. 
 
 45. It shall be lawful for the Court or a Judge, upon the application of any 
 party to an action, and upon such terms as may seem just, to make any order 
 for the detention, preservation, or inspection of any property, being the subject 
 of such action, and for all or any of the purposes aforesaid to authorise any 
 person or persons to enter upon or into any land or building in the possession 
 of any party to such action, and for all or any of the purposes aforesaid to
 
 186 KTJLES UN' HER THE SUPREME 
 
 authorise any samples to be taken, or any observation to be made or experi- 
 ment to be tried, which may seem necessary or expedient for the purjxmr "/' 
 obtaining full information or evidence. The Court or a Judge may also, in 
 all cases where it shall appear necessary for the purposes of justice, make any 
 order for the examination upon oath before any officer of the Court, or any 
 other person or persons, and at any place, of any witness or person, and may 
 order any deposition so taken to be filed in the Court, and may empower any 
 party to any action or other proceeding to gire such deposition in evidence 
 therein on such term*, if any, as the Court or a Judge may direct. 
 
 This Rule is re-enacted, the first clause by Order LII, "Rule 
 3, the second clause by Order XXXVII, Rule 4, of the Amend- 
 ing Act, ("cause or matter" being substituted for "all cases.") 
 
 Discontinuance of action. 
 
 46. The plaintiff may, at any time before receipt of the defendant's 
 statement of defence, or after the receipt thereof before taking any other pro- 
 ceeding in the action (save any interlocutory application^, by notice in writing, 
 wholly discontinue his action or withdraw any part or parts of hits alleged 
 cause of complaint, and thereupon he shall pay the defendant's costs of the 
 action, or, if the action be not wholly discontinued, the defendant's costs 
 occasioned by the matter so withdrawn. Such costs shall be taxed in 
 the manner prescribed by Rules of Court, and such discontinuance or 
 withdrawal, as the case may be, shall not be a defence to any subsequent 
 action. Save as in this Rule otherwise provided, it shall not be competent 
 for the plaintiff to withdraw the Record or discontinue 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, upon such terms as to costs, 
 and as to any other action, and otherwise as may seem Jit, order the 
 action to be discontinued, or any part of tJie 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 application of a defendant, order the whole or 
 any part of his alleged grounds of defence or counter-claim to be withdrawn 
 or struck out, but it shall not be competent to a defendant to withdraw his 
 defence, or any part thereof, without such leave. Any judgment of nonsuit, 
 unless the Court or a Judge otherwise directs, shall hare the same effect as a 
 judgment upon the merits for the defendant ; but in any case of mistake, 
 surprise, or accident, any judgment of nonsuit may be set aside on such terms, 
 as to payment of costs and otherwise, as to the Court or a Judge shall seem 
 just. 
 
 This Rule is re-enacted, the last clause by Order XLI, Rule 
 6, the remainder by Order XXIII of the Amending Act.
 
 COUET OF JUDICATURE ACT, 1873. 187 
 
 COSTS. 
 Costs. 
 
 47. Subject to the provisions of this Act, the costs of and incident to all 
 proceedings in the Sigh Court shall be in the discretion of the Court ; but 
 nothing herein contained shall deprive a trustee, mortgagee, or other person 
 of any right to costs out of a particular estate or fund to which he would be 
 entitled according to the rules hitherto acted upon in Courts of Equity. 
 
 This Rule is re-enacted by Order LV of the Amending Act. 
 
 NEW TRIALS AND APPEALS. 
 Restrictions on new trials. 
 
 48. A new trial shall not be granted on the ground of misdirection or of the 
 improper admission or rejection of evidence, unless in the opinion of the Court 
 to which the application is made some substantial wrong or miscarriage has 
 been thereby occasioned in the trial of the action ; and if it appear to such 
 Court that such ivrong or miscarriage affects part only of the matter in con- 
 troversy, the Court may give final judgment as to part thereof, and direct a 
 new trial as to the other part only. 
 
 This Eule is re-enacted by Order XXXIX, Rule 3, of the 
 Amending Act. 
 
 Abolition of bills of exceptions and proceedings in error. 
 
 49. Sills of exceptions and proceedings in error shall be abolished. 
 The Rule is re-enacted by Order LVJII, Rule 1, of the 
 
 Amending Act. 
 
 Mode of Appealing. 
 
 50. All appeals to the Court of Appeal shall be by way of re-hearing, and 
 shall be brought by notice of motion in a summary way, and no petition, case, 
 or other formal proceeding other than such notice of motion shall be necessary. 
 The appellant may by the notice of motion appeal from the whole or any part 
 nf any judgment or order, and the notice of motion shall state whether the 
 u-holc or part only of such judgment or order is complained of, and in the 
 cify such part. 
 
 This Rule is re-enacted by Order LVIII, Rule 2, of the 
 Amending Act. 
 
 Notice of appeal. 
 
 51. The notice of appeal shall be served upon all parties directly affected 
 by the appeal, and it shall not be necessary to serve parties not so affected ; 
 but the Court of Appeal may direct notice of the appeal to be served on 
 all or any parties to the action or other proceeding, or upon any person not a
 
 188 RULES UNDER THE SUPREME 
 
 party, and in the meantime may postpone or adjourn 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 person served with such 
 notice had been originally parties. Any notice of appeal may be amended at 
 any time as to the Court of Appeal may seem Jit. 
 
 This Rule is re-enacted by Order LYIII, Rule 3, of the 
 Amending Act. 
 
 General power of Appeal Court. 
 
 52. The Court of Appeal shall have all the powers and duties as to amend- 
 ment and otherwise of the Court of First Instance, together with full dis- 
 cretionary power to receive further evidence upon questions of fact, such 
 evidence to be either by oral examination in court, by affidavit, or by deposition 
 taken before an examiner or commissioner. Such further evidence may be 
 given without special 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 decree or judgment upon the merits, 
 at the trial or hearing of any action or matter, such further evidence (save at 
 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 decree or 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 exercised by the said Court, notwithstanding that the notice of appeal 
 may be that part only of the decision may be reversed or varied, and such 
 powers may also be exercised in favour of all or any of the respondent* or 
 parties, although such respondents or parties may not have appealed from or 
 complained 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. 
 
 This Rule is re-enacted by Order LVIII, Rule 5, of the 
 Amending Act. 
 
 Regulations as to cross appeals. 
 
 53. It shall not, under any circumstance, be necessary 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 or altered, he shall, within such time as may be 
 prescribed by Rules of Court or by special order, give notice of such intention 
 to any parties who may be affected by such contention. The omission to 
 give such notice shall not diminish the powers by this Act conferred upon
 
 COURT OF JUDICATURE ACT, 1873. 189 
 
 the Court of Appeal, but may, in the discretion of the Court, be ground for an 
 adjournment of the appeal, or for a special order as to costs. 
 
 This Rule is re-enacted by Order LVIII, Rule 6, of the 
 Amending Act. 
 
 Mode of bringing evidence before Court of Appeal. 
 
 54. When any question of fact is involved in an appeal, the evidence taken 
 in the Court below shall be brought before the Court of Appeal in such 
 manner as may be prescribed by Rules of Court or by special order. 
 
 This Rule is re-enacted (with the exception of the words, 
 " in such manner as may be prescribed by Rules of Court or 
 by special order ") by Order LVIII, Rule 1 1 of the Amending 
 Act. The " manner " is la^id down in sub-sections (a) and (b) 
 of the last-mentioned Rule. 
 
 Poiver for Court to refer to notes, $c. 
 
 55. If, upon the hearing of an appeal, a question arise as to the ruling or 
 direction of the Judge to a jury or assessors, the Court shall have regard to 
 verified notes or other evidence, and to such other materials as the Court may 
 deem expedient. 
 
 This Rule is re-enacted by Order LYIII, Rule 13, of the 
 Amending Act. 
 
 Want of appeal from interlocutory order not to limit powers of Court 
 of Appeal. 
 
 56. 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. 
 
 This Rule is re-enacted by Order LYIII, Rule 14, of the 
 Amending Act. 
 
 Limit of time in appeals. 
 
 57. No 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 other 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, or 
 from such time as may be prescribed by Rules of Court. Such deposit or other 
 security for the costs to be occasioned by any appeal shall be wade or given as
 
 190 RULES UNDER JUDICATURE ACT, 1873. 
 
 vim/ be prescribed by Rules o Court, or directed under special circumstancts by 
 the Court of Appeal. 
 
 This Rule (except the words " or from sxich time as may be 
 prescribed by Rules of Court ") is re-enacted by order LVIII, 
 Rule 15, of the Amending Act. 
 
 Appeal not to stay proceedings. 
 
 58. An appeal shall not operate as a stay of execution or of proceedings 
 under the decision appealed from, except so far as the Court appealed from, or 
 ftny Judge thereof, or the Court of Appeal, may so order ; and no intermediate 
 act or proceeding shall be inralidatcd, except so far as the Court appealed from 
 may direct. 
 
 This Rule is re-enacted by Order LVIII, Rule 16, of the 
 Amending Act.
 
 SUPREME COURT OF JUDICATURE 
 
 38 & 39 VICTORIA., CHAPTER 77. 
 
 An Act to amend and extend the Supreme Court 
 of Judicature Act, 1873. 
 
 WHEBEAS it is expedient to amend and 
 extend the Supreme Court of Judicature 
 Act, 1873. 
 
 A Bill was introduced in 1874, entitled " An Act to 
 amend and extend the Supreme Court of Judicature Act, 
 1873." It passed through, the House of Lords and was 
 read a first time in the House of Commons, but it was 
 withdrawn near the close of the Session of 1874, the 
 chief cause of its withdrawal being the occupation of the 
 time, which would otherwise have been devoted to it by 
 measures which were regarded as of more pressing impor- 
 tance, especially by the Public Worship Bill, the Scottish 
 Church Patronage Bill, and the Endowed Schools Bill, all 
 of which eventually became law in the Session of 1874. 
 
 Instead of an amending measure a Suspensory Bill was 
 passed (37 and 38 Yict. c. 83) by which the 2nd section 
 of the Supreme Court of Judicature Act, 1873, was re- 
 pealed and it was provided that that Act " excepting pro- 
 visions thereof directed to take effect on the passing 
 thereof"' should "commence and come into operation on 
 the 1st day of November, 1875," and the said day should 
 " be taken to be the time appointed for the commencement 
 of the said Act." 
 
 The preamble of the present Bill is copied from the 
 preamble of the Amending Bill of 1874, with the omission 
 of the concluding words, " and to constitute an Imperial 
 Appellate Court."
 
 192 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Be it therefore enacted by the Queen's most 
 Excellent Majesty, by and with the advice and 
 consent of the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, 
 and by the authority of the same, as follows : 
 
 SECTION 1. Short title, and construction with 36 
 and 37 Viet. c. 66. 
 
 This Act shall, so far as is consistent with the 
 tenor thereof, be construed as one with the 
 Supreme Court of Judicature Act, 1873, (in this 
 Act referred to as the Principal Act,) and together 
 with the Principal Act may be cited as the 
 Supreme Court of Judicature Acts, 1873 and 
 1875, and this Act may be cited separately as the 
 Supreme Court of Judicature Act, 1875. 
 
 This section is copied from the Supreme Court of Judi- 
 cature Bill of 1874, with the substitution of " 1875 " for 
 " 1874." 
 
 " The Supreme Court of Judicature Act, 1873," is the 
 title, as we have seen,* given to the Principal Act by the 
 1st section of that Act. 
 
 SECTION 2. Commencement of Act. 
 
 This Act, except any provision thereof which is 
 declared to take effect before the commencement 
 of this Act, shall commence and come into opera- 
 tion on the 1st day of November, 1875. 
 
 Sections twenty, twenty-one, and fifty-five of 
 
 * P. 2.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 193 
 
 the Principal Act shall not commence or come 
 into operation until the 1st day of November, 
 1876, and until the said sections come into 
 operation, an appeal may be brought to the 
 House of Lords from any judgment or order of 
 the Court of Appeal hereinafter mentioned in 
 any case in which any appeal or error might now 
 be brought to the House of Lords or to Her 
 Majesty in Council from a similar judgment, 
 decree, or order of any Court or Judge whose 
 jurisdiction is by the Principal Act transferred to 
 the High Court of Justice or the Court of Appeal, 
 or in any case in which leave to appeal shall 
 be given by the Court of Appeal. 
 
 The first pargraph of this section is copied from the 
 Supreme Court of Judicature Bill, 1874. The words, 
 " except any provision thereof which is declared to take 
 effect before the commencement of this Act," refer to 
 the following sections: section 25, infra (which enacts 
 that Orders in Council and Rules of Court, required by 
 this Act to be laid before Parliament, shall be so laid 
 within forty days next after they are made); section 29, 
 infra (which abolishes certain small payments to the 
 Senior Puisne Judge of the Queen's Bench and to the 
 Queen's Coroner and Attorney) ; section 30 (which 
 repeals section 16 of the Chancery Funds Act, 1872) ; 
 Section 31 (which abolishes the office of secretary to the 
 visitors of lunatics) , and section 32, (which amends section 
 19 of the 32 and 33 Viet., c. 83, and section 116 of the 
 32 and 33 Viet., c. 71). Sections 17, 23, and 26, also, 
 give power to make orders after the passing and before 
 the commencement of the present Act. See also s. 8. 
 
 By subsection (5) of the 18th section of the Supreme 
 Court of Judicature Act, 1873, it is enacted,* " that there 
 
 P. 21. 
 13
 
 194 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 shall be transferred to and vested in the Court of Appeal 
 all jurisdiction vested in or capable of being exercised by 
 Her Majesty in Council, or the Judicial Committee of Her 
 Majesty's Privy Council, upon appeal from any judgment 
 or order of the High Court of Admiralty, or from any 
 order in lunacy made by the Lord Chancellor or any other 
 person having jurisdiction in lunacy." 
 
 As to appeals to the Judicial Committee of the Privy 
 Council from the High Court of Admiralty, see the 2 and 
 3 Wm. IV., c. 92 ; 3 and 4 Yict. c. 65, s. 17 ; 24 and 25 
 Viet. c. 10, s. 32 ; 27 and 28 Viet., c. 2o : 33 and 34 Viet. 
 c. 90, s. 27. 
 
 As to appeals to the same Committee from the Lord 
 Chancellor or Lord Justices in Lunacy, see Sheldon v. 
 Forfesciic, 3 P. Wms., 138; Elmer, 84. " No appeal," says 
 Mr. Daniel,* " lies to the House of Lords from orders 
 made by the Lord Chancellor or Lords Justices in Lunacy. 
 In such case the appeal is to the Privy Council," 
 
 The effect of the latter part of the present section 
 is rather curious. The jurisdiction of the High Ccurt 
 of Admiralty is, by the 5th subsection of the 16th section 
 of the Principal Act, vested in the High Court of Justice. 
 The appeal from the High Court of Admiralty lay direct, as 
 we have seen, to the Privy Council. The 5th subsection 
 of the 18th section of the Principal Act vests this appellate 
 jurisdiction of the Privy Council in the new Court of Ap- 
 peal. Then comes the present section, and says that " an 
 appeal may, till the 1st November, 1876, be brought to the 
 House of Lords from any judgment or order of the Court of 
 Appeal, in any case in which any appeal might now be 
 brought to Her Majesty in Council from a similar judg- 
 ment or order "of the High Court of Admiralty, that 
 being a " Court whose jurisdiction is transferred to the 
 High Court of Justice." Evidently the words " from any 
 judgment or order of the Court of Appeal," and the word 
 " similar," are mere surplusage, unless it is intended to 
 give two appeals, one to the Court of Appeal and one from 
 that Court to the House of Lords, where, before the 1st 
 
 * Practice of the High Court of Chancery, c. XXXII, s, 3 (p. 1361, 
 Edn. 1871.)
 
 SUPREME COURT OP JUDICATURE ACT, 1875. 195 
 
 November, 1875, there was only one appeal, viz. to the 
 Privy Council. The writer understands that such is the 
 intention, with a view to preventing many appeals to the 
 Upper House under this section. 
 
 Again, the jurisdiction of the Lord Chancellor arid 
 Lords Justices in Lunacy is by subsection (3) of the 17th 
 section of the Principal Act, expressly declared not to be 
 transferred to the High Court of Justice. Prior to the 1st 
 November, 1875, the appeal from the Lord Chancellor 
 and Lords Justices in Lunacy, lay direct to the Privy 
 Council ; but subsection (5) of section 18 of the Princi- 
 pal Act substitutes the Court of Appeal for the Privy 
 Council, as the appellate tribunal in this case. Then 
 comes the present section, and says that " an appeal may 
 be brought to the House of Lords from any judgment or 
 order of the Court of Appeal in any case in which any 
 appeal might now be brought to Her Majesty in Council 
 from a similar judgment, or order of any Court or Judge 
 whose jurisdiction is by the Principal Act transferred to 
 the High Court of Justice or the Court of Appeal." 
 
 Now, as by the 3rd subsection of the 17th section of the 
 Principal Act it is expressly provided that the jurisdiction 
 of the Lord Chancellor and Lords Justices in Lunacy shall 
 not be transferred to the High Court of Justice, and a? 
 that jurisdiction is not transferred by the 5th subsection 01 
 the 18th section of the principal Act, the jurisdiction trans- 
 ferred by that enactment being the appellate jurisdiction 
 from the Lord Chancellor and the Lords Justices to the 
 Privy Council, it follows, that the present section has no 
 effect at all upon the jurisdiction either of the Lord Chan- 
 cellor and Lords Justices in Lunacy or of the Privy 
 Council in Lunacy, or of the Court of Appeal in Lunacy, 
 no appeal to Her Majesty in Council lying in this case 
 from a Court or Judge, whose jurisdiction is by the Prin- 
 cipal Act transferred to the High Court of Justice or the 
 Court of Appeal. It is the jurisdiction in Lunacy of the 
 Privy Council itself which is transferred by the Principal 
 Act to the Court of Appeal. In the debates on this 
 section, no allusion was made to any intention of transfer- 
 ring appeals to the Privy Council from the Lord Chan- 
 cellor and Lords Justices in Lunacy to the House of Lords,
 
 196 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 but only appeals to the Privy Council from the Court of 
 Admiralty, and the writer understands that it was not 
 intended to touch the former. It will be perceived that 
 to make this section applicable, the jurisdiction of the 
 Court from which an appeal lies, must have been " trans- 
 ferred by the Principal Act." If the words, " or this Act," 
 were added, this section and s. 7 would, taken together, 
 vest in the House of Lords an appeal from the Court of 
 Appeal in Lunacy, as far as the jurisdiction in lunacy of 
 the Lords Justices is concerned.* 
 
 The only amendment made to the present section was 
 on the Report, near the close of the Session, when the 
 words, " or in any case in which leave to appeal shall be 
 givon by the Court of Appeal," were added. These words 
 seem to have reference to s. 53 of the Principal Act, which 
 provided a substitute for the appellate jurisdiction of the 
 House of Lords by a " re-hearing " before a greater num- 
 ber of the Judges of the Court of Appeal, " if the Court 
 of Appeal think fit so to direct ;" but s. 53 of the Principal 
 Act is repealed by the present Act (s. 33 and Schedule 2), 
 and there is no provision, it is believed, as to " leave to 
 appeal " to be given by the Court of Appeal in either of 
 the Judicature Acts. 
 
 SECTION 3. Explanation of 36 and 37 Viet., 
 c. 66, s. 5, as to number of Judges. 
 
 Whereas by Section five of the Principal Act 
 it is provided as follows: "that if at the com- 
 " mencement of this Act the number of puisne 
 "justices and junior barons who shall become 
 " Judges of the said High Court shall exceed 
 "twelve in the whole, no new Judge of the said 
 " High Court shall he appointed in the place of 
 " any such puisne justice or junior baron who shall 
 " die or resign while such whole nurnher shall ex- 
 
 * The present section was criticised with much acerbity in the Houst- 
 of Commons.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 197 
 
 ** ceed twelve, it being intended that the perma- 
 " nent number of Judges of the said High Court 
 "shall not exceed twenty-one;" and whereas, 
 having regard to the state of business in the 
 several courts whose jurisdiction is transferred 
 by the Principal Act to the High Court of 
 Justice, it is expedient that the number of Judges 
 thereof should not at present be reduced : Be it 
 enacted, that so much of the said section as is 
 hereinbefore recited shall be repealed. The Lord 
 Chancellor shall not be deemed to be a permanent 
 Judge of that Court, and the provisions of the 
 said section relating to the appointment and 
 style of the Judges of the said High Court shall 
 not apply to the Lord Chancellor. 
 
 See the note (p. 8) to section 5 of the Principal Act, as 
 to two curious errata in that section, which this section 
 was originally designed to amend. 
 
 The manner in which it was intended to amend s. 5 will 
 appear from the shape in which Clause 3 came down from 
 the House of Lords. It then ran thus : 
 
 "Whereas by section five of the principal Act it is 
 provided as follows : ' that if at the commencement of this 
 ' Act the number of puisne justices and junior barons who 
 ' shall become Judges of the said High Court shall exceed 
 
 * twelve in the whole, no new Judge of the said High Court 
 'shall be appointed in the place of any such puisne justice 
 'or junior baron who shall die or resign while such whole 
 
 * number shall exceed twelve, it being intended that the 
 ' permanent number of Judges of the said High Court shall 
 ' not exceed twenty-one ; ' and doubts have arisen as to the 
 position of the Lord Chancellor under the said section, and 
 it is expedient to remove such doubts : 
 
 " Beit therefore enacted, that the said section shall be read 
 as if instead of the words ' the permanent number of Judges
 
 198 SUPREME COURT OF JUDICATURE ACT, 187<~. 
 
 of the said High Court ' there were inserted the words, 
 ' the number of permanent Judges of the said High Court,' 
 and in the construction of the said section the Lord 
 Chancellor shall be deemed not to be a permanent Judge of 
 the said High Court, but the other Judges constituting the 
 said High Court, exclusive of the Lord Chancellor, shall be 
 deemed to be permanent Judges of that Court, and the pro- 
 visions of the said section relating to the appointment and 
 style of the Judges of the said High Court shall not apply 
 to the Lord Chancellor." 
 
 In Committee on the Bill the consideration of Clause 3 
 was postponed, till after that of the other clauses. 
 
 Eventually the Attorney-General gave notice of the 
 following amendment to the clause : 
 
 Page 2, line 5, leave out from (" and ") to (" exclusive 
 of") in line 14 and insert ( "Whereas, having regard to 
 the state of business in the several courts whose jurisdic- 
 tion is transferred by the Principal Act to the High Court 
 of Justice, it is expedient that the number of Judges 
 thereof should not at present be reduced : Be it enacted, 
 that so much of the said section as is herein-bcforc recited 
 shall be repealed.") 
 
 "With the exception of Mr. Gladstone and Sir William 
 Harcourt, the hon. members, who spoke in the debates on 
 the Bill, were unanimous in deprecating any reduction in 
 the number of the Judges, as contemplated by the repealed 
 paragraph of section 5 of the Principal Act. 
 
 SECTION 4. Constitution of Court of Appeal. 
 
 Her Majesty's Court of Appeal, in this Act 
 and in the Principal Act referred to as the Court 
 of Appeal, shall he constituted as follows : There 
 shall he five ex-officio Judges thereof, and also 
 so many Ordinary Judges, not exceeding three at 
 any one time, as Her Majesty shall from time to 
 time appoint. 
 
 The ex-officio Judges shall be the Lord Chan-
 
 SUPREME COURT OP JUDICATURE ACT, 1875. 
 
 cellor, the Lord Chief Justice of England, the 
 Master of the Rolls, the Lord Chief Justice of 
 the Common Pleas, and the Lord Chief Baron of 
 the Exchequer. 
 
 The first Ordinary Judges of the said Court 
 shall be the present Lords Justices of Appeal'in 
 Chancery, and such one other person as Her 
 Majesty may be pleased to appoint by Letters 
 Patent. Such appointment may be made either 
 before or after the commencement of this Act, 
 but if made before shall take effect at the com- 
 mencement of the Act. 
 
 The Ordinary Judges of the Court of Appeal 
 shall be styled Justices of Appeal. 
 
 The Lord Chancellor may by writing addressed 
 to the President of any one or more of the fol- 
 lowing divisions of the High Court of Justice, 
 that is to say, the Queen's Bench division, the 
 Common Pleas division, the Exchequer division, 
 and the Probate, Divorce, and Admiralty division, 
 request the attendance at any time, except 
 during the times of the spring or summer 
 Circuits, of an additional Judge from such Division, 
 or Divisions (not being ex-officio Judge or Judges 
 of the Court of Appeal) at the sittings of the 
 Court of Appeal, and a Judge, to be selected by 
 the Division from which his attendance is re- 
 quested, shall attend accordingly. 
 
 Every Additional Judge, during the time that 
 he attends the sittings of Her Majesty's Court of
 
 200 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Appeal, shall have all the jurisdiction and powers 
 of a Judge of the said Court of Appeal, but he 
 shall not otherwise be deemed to be a Judge of the 
 said Court, or to have ceased to be a Judge of the 
 Division of the High Court of Justice to which 
 he belongs. 
 
 Section fifty-four of the Principal Act is hereby 
 repealed, and, instead thereof, the following 
 enactment shall take effect ; No Judge of the 
 said Court of Appeal shall sit as a Judge on the 
 hearing of an appeal from any judgment or order 
 made by himself, or made by any Divisional Court 
 of the High Court of which he was and is a 
 member. 
 
 Whenever the office of an Ordinary Judge of 
 the Court of Appeal becomes vacant a new Judge 
 may be appointed thereto by Her Majesty by 
 Letters Patent. 
 
 The leading distinction between the Court of Appeal 
 created hy the Principal Act and the Court of Appeal 
 created by this Act is as follows : The Court of Appeal 
 created by the Principal Act was to be, practically, the sole 
 Court of Appeal for the British Empire ("the Imperial 
 Court of Appeal," as it is termed in the Amending Bill of 
 1874), while the Court of Appeal created by this Act is 
 a much more modest tribunal, representing merely the 
 abolished jurisdiction of the Exchequer Chamber and of the 
 Court of Appeal in Chancery in other words, it is merely 
 an intermediate Court of Appeal for England. The House 
 of Lords will for the present be the Final Court of Appeal 
 for the United Kingdom, except in Ecclesiastical causes ; 
 and the Judicial Committee of the Privy Council will for 
 the present be the Final Court of Appeal in Ecclesiastical 
 causes, and also for our Colonial Empire and India. 
 
 It was proposed by the 21st and 55th sections of the
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 201 
 
 Principal Act that the Court of Appeal, which it created, 
 should gradually absorb the jurisdiction of the Judicial 
 Committee of the Privy Council ; but this proposal is, as 
 we have seen, for the present, at least, suspended. 
 
 This section is substituted for section 6 of the Principal 
 Act, which is repealed by section 33 of the present Act, and 
 the second Schedule. There is no section of the present 
 Act which underwent more (and more rapid) c lianges than 
 the section now under discussion. 
 
 As the section originally stood, the third paragraph ran 
 as follows : " The first ordinary Judges of the said Court 
 shall be the present Lords Justices of Appeal in 
 Chancery, such two of the salaried Judges of the Judicial 
 Committee of Her Majesty's Privy Council appointed under 
 the Judicial Committee Act, 1871, as Her Majesty may, 
 under the Royal Sign Manual appoint, and such one other 
 person as Her Majesty may be pleased to appoint by Letters 
 Patent. Such appointment may be made either before or 
 after the commencement of this Act, but, if made before 
 shall take effect at the commencement of the Act." The 
 words in italics were omitted in Committee on the Bill in 
 the House of Commons, on the motion of Mr. Gregory, 
 and the word, " three," was at the same time substituted 
 for the word, " one."* 
 
 * The following report of the debate of July 5th, 1875, on this question, 
 taken from the Times of July 6th, 1875, will explain some of the reasons 
 which induced the Attorney-General (Sir .Richard Baggallay), to assent 
 to the amendment of the hon. memher for Sussex : 
 
 "On Clause 4, 
 
 " Mr. W. WILLIAMS moved, page 2, line 29, to leave out after 
 ' Chancery' to end of line 36, and insert, ' and such three other persons 
 to he selected from the Vice-Chancellors, Justices, or Barons of the 
 Superior Courts of Law and Equity at Westminster, or of the correspond- 
 ing Divisions of the High Court of Justice, of not less than five years' 
 standing as Judges, as Her Majesty may under the Royal Sign Manual 
 appoint.' The plan proposed by the Bill would, in the first place, weaken 
 the efficiency of the Judicial Committee of the Privy Council by taking 
 away two of the Judges to sit in the_ Intermediate Court ; and, in the next 
 place, it amounted to a distinct breach of faith and violation of the under- 
 standing on which these learned Judges were appointed to their present 
 offices in 1871. They were appointed to a Final Appellate Court, subject 
 to being available hereafter for a supreme appellate jurisdiction. They 
 were now to be transferred to a Court of Intermediate Appeal, which waa 
 not a Court of such high dignity as that from which they were to be 
 removed. 
 
 " Mr FORSYTH trusted that the Attorney- General would remain open
 
 202 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 If the fourth section of the present Act had passed in the 
 shape in which it was sent down from the House of Lords, 
 it would have been impossible to have retained the Judicial 
 Committee of the Privy Council, crippled by the loss of 
 
 to conviction and would see whether some better tribunal could not bo 
 proposed. In the first place, as had been pointed out, the Judicial Com- 
 mittee of the Privy Council would be greatly weakened by withdrawing 
 half their number ; next the Intermediate Court would hear appeals from 
 all the Judges of Common Law and Equity. In overruling judgments 
 from the Common. Law Courts it ought to have a strong Common Law 
 element ; but as the Bill stood there might be five Equity Judges sitting 
 to decide questions of purely common law. Some security ought to be taken 
 that two out of the three ' other persons ' should be Common Law lawyers. 
 
 " Sir H. JAMES hoped the decision of the Committee would be taken 
 upon the simple question of whether two members of the Judicial Com- 
 mittee of the Privy Council should or should not be chosen as members of 
 the Intermediate Court. 
 
 " After a few observations from Mr. GREGORY, Sir H. HOLLAND, and 
 Mr. GOLDNEY. 
 
 " Mr. W. WILLIAMS withdrew hia amendment in favour of Mr. Gregory's, 
 which raised the real issue in a more clear and simple manner than did 
 his own proposal. 
 
 " Mr. GREGORY moved the omission of that part of the clause which 
 provided that two salaried Judges of the Judicial Committee of the Privy 
 Council should be removed to the Supreme Court of Appeal. The Judicial 
 Committee had proved to be a tribunal highly satisfactory to the suitors 
 and the Bar, and its judgments were much respected and looked up to. 
 If that tribunal were weakened, considerable arrears of business would 
 probably accrue. Appeals would be hung up, and consequently their 
 number would increase, because many appeals were made merely for 
 purposes of delay. He hoped no consideration of economy would be 
 allowed to stand in the way of constituting a really efficient Court of 
 Appeal. 
 
 " Sir E. WILMOT supported the amendment. 
 
 "Mr. LEITH contended that the clause as it stood would bring about 
 the same unfortunate state of things as prevailed in connection with the 
 Judicial Committee of the Privy Council previous to 1871, and supported 
 the amendment, inasmuch as it would maintain the strength of the 
 Judicial Committee unimpaired. He also objected to the clause n the 
 ground that it would be a breach of faith with the Judge to remove 
 them from a higher to a lower Court. 
 
 " The ATTORNEY-GENERAL disavowed any intention of breaking faith 
 with the Judges, and stated that at the tune of their appointment it was dis- 
 tinctly understood that they were to be available for any Court of Appeal 
 which might be formed. The arrangement made in 1871, he maintained, 
 was of a temporary character in order to meet a temporary difficulty 
 namely, the accumulation of over 400 appeals. Of these, the four Judges 
 had cleared otf no less than 320 (hear, hear) ; so that at the present time 
 there was no glut of business before the Privy Council at all. Under 
 these circumstances he did not think any difficulty would be created 
 by the proposal in the Bill. At the same time, that was a question
 
 SUPREME COURT OF JUDICATURE ACT, 1S7-3. 203 
 
 two of its salaried Judges, as a Final Court of Appeal, side 
 by side with the House of Lords. The idea of transferring 
 two of the salaried Judges of the Judicial Committee of the 
 Privy Council to the Court of Appeal was, no doubt, taken 
 from the repealed sixth section of the Principal Act, which 
 provided, that " the first ordinary Judges of the said Court 
 shall be the existing Lord Justices of Appeal in Chancery, 
 the existing salaried Judges of the Judicial Committee of 
 Her Majesty's Privy Council appointed under ' the Judicial 
 Committee Act, 1871 ' and such three other persons as 
 Her Majesty maybe pleased to appoint by Letters Patent." 
 
 \Vhen the Bill was in Committee in the House of 
 Commons, Sir Henry James made an eifort to secure that 
 the <( three other persons " should be Common Law Judges 
 from Westminster Hall, but the proposal was resisted by 
 the Attorney-General, and was not pressed. 
 
 The present section, when the Bill issued from Committee 
 in the House of Commons, stood as follows : * 
 
 which ought to be solved in a manner that was likely to inspire 
 general confidence. There was no doubt that an opinion had been ex- 
 pressed very decidedly by the legal members on both sides of the House' 
 that it was n.t desirable to constitute that Court of Appeal in part by the 
 removal of two members of the Judicial Committee at the present time. 
 (Hear, hear.) It had appeared to him that they might have been placed 
 in that Court of Appeal with advantage and economy. He was not one 
 of those who would allow considerations of economy to prevail where 
 they stood in the way of efficiency; but, believing that the Judges of the 
 Judicial Committee would still be able to discharge the duties imposed 
 upon thfin in an efficient manner, he thought it would have been, 
 desirable that the economical arrangement which had been proposed 
 should have been adopted. Yet he did not think he ought to stand out 
 against the view which had been almost universally expressed by the 
 Committee that evening, and he was disposed therefore to accede to the 
 proposal of the lion, member for Sussex (Mr. Gregory), and to omit the 
 names of the two Privy Council Judges from the clause. (Hear, hear.) 
 Although any suggestion that the clause as it stood would have involved 
 the breach of an honourable understanding was, he believed, entirely 
 unfounded, it would be disadvantageous to the public service that the 
 least suspicion of anything of that kind should exist. 
 
 " The amendment was then agreed to. 
 
 " On the motion of Mr. ~W. WILLIAMS, in the absence of Mr. Gregory, 
 the words, 'and such one other person as Her Majesty may be pleased 
 to appoint by Letters Patent,' in the part of the clause relating to the 
 appointment of the ordinary Judges of the Court, were altered to ' such 
 three other persons,' &c." 
 
 * It stands thus in the Bill " as amended in Committee," printed on the 
 motion of the writer.
 
 204 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 " Her Majesty's Court of Appeal, in this Act and in the 
 principal Act referred to as the Court of Appeal, shall be 
 constituted as follows : There shall be five ex-officio Judges, 
 thereof, and also so many ordinary Judges, not exceeding 
 five at any one time, as Her Majesty shall from time to 
 time appoint. 
 
 " The fx-qfficio Judges shall be the Lord Chancellor, 
 the Lord Chief Justice of England, the Master of the Rolls, 
 the Lord Chief Justice of the Common Pleas, and the Lord 
 Chief Baron of the Exchequer. 
 
 " The first Ordinary Judges of the said court shall be 
 the present Lords Justices of Appeal in Chancery, and 
 such three other persons as Her Majesty may be pleased 
 to appoint by Letters Patent. Such appointment may be 
 made either before or after the commencement of this Act, 
 but if made before shall take effect at the commencement 
 of the Act. 
 
 " The Ordinary Judges of the Court of Appeal shall be 
 styled Lords Justices -of Appeal. 
 
 " Whenever the office of an Ordinary Judge of the 
 Court of Appeal becomes vacant, a new Judge 
 may be appointed thereto by Her Majesty by Letters 
 Patent. 
 
 " Provided that if any Puisne Judge of the Court of 
 Queen's Bench or Common Pleas, or any Junior Baron of 
 the Court of Exchequer, is before the commencement of 
 the principal Act appointed an Ordinary Judge of the 
 Court of Appeal, a new Judge may be forthwith appointed 
 in the place of such Puisne Judge or Junior Baron, such 
 appointment to take effect at the commencement of the 
 principal Act. 
 
 " One or more of the Lords Justices of Appeal, if mem- 
 bers of Her Majesty's Privy Council, shall, so far as may 
 be necessary, and so far as the state of business in the Court 
 of Appeal may admit, attend the sittings of the Judicial 
 Committee." 
 
 On the report, the Attorney-General moved to insert 
 the following new amendments, which, it will be seen, carry 
 out the view of Sir Henry James : 
 
 "Page 2,-
 
 SUPREME COURT OK JUDICATURE ACT, 1875. 205 
 
 "Line 21,* leave out (' five ') and insert (' three') 
 
 " Line 27, leave out from (' such ') to (' appoint ') 
 in line 30. 
 
 " Line 30, leave out (' one ') and insert (' three ') 
 
 "Line 31, leave out ('person') and insert ('per- 
 sons ') 
 
 " Line 35, leave out ( Lords ') 
 
 " Line 36, after (' appeal ') insert 
 " The Lord Chancellor may by writing addressed to the 
 president of any one or more of the following Divisions of 
 the High Court of Justice, that is to say, the Queen's 
 Bench Division, the Common Pleas Division, the Exchequer 
 Division, and the Probate Divorce, and Admiralty Division, 
 request the attendance at any time, except during the 
 times of the spring or summer Circuits, of an Additional 
 Judge from such Division or Divisions (not being ex-qfficio 
 Judge or Judges of the Court of Appeal) at the sittings of 
 the Court of Appeal, and a Judge, to be selected by the 
 Division from which his attendance is requested, shall 
 attend accordingly. 
 
 " Every Additional Judge, during the time that he attends 
 the sittings of Her Majesty's Court of Appeal, shall have 
 all the jurisdiction and powers of a Judge of the said Court 
 of Appeal, but he shall not otherwise be deemed to be a 
 Judge of the said Court, or to have ceased to be a Judge of 
 the Division of the High Court of Justice to which he 
 belongs. 
 
 "Line 40, leave out from (''provided') to end of 
 Clause 4." 
 
 Sir Henry James moved to amend the principal amend- 
 ment by inserting the following words after " belongs " : 
 " Provided, that no Judge of the said Court of Appeal 
 shall sit as a Judge on the hearing of an appeal from any 
 judgment or order made by himself, or made by any 
 Divisional Court of the High Court of which he was and 
 is a member." 
 
 This amendment, and the amendments of the Attorney- 
 General, were accepted by the House. 
 
 The House of Lords, however, disagreed with the amend- 
 
 * The lines are not those of the Commons', but of the Lords' Bill. The 
 Lords reprint the Commons' amendments, adapting them to their own 
 copy of the Bill.
 
 206 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 inent to leave out " one " and insert " three." assigning as 
 their " reason " that " one Judge is more consistent with 
 the scheme, as altered, than three Judges." 
 
 The Commons' amendment was evidently a mistake ; as 
 they had just before agreed that the number of " Ordinary 
 Judges " should be three, and the two Lords Justices of 
 Appeal, and " one other person to be appointed by Letters 
 Patent," make up that number. The Judges sent over 
 by the three Common Law divisions are to be " Additional," 
 not " Ordinary Judges." 
 
 One curious result of the alterations made in this clause 
 in the Lower House is, that there will be "Additional," as 
 well as " ex-officio " and " Ordinary " Judges of Appeal, 
 thus, to some extent, carrying out the view which Lord 
 Selborne, in 1873, embodied in section 6 of his enactment 
 
 The House of Lords altered the phraseology of Sir 
 Henry James's amendment to " section 54, of the Prin- 
 cipal Act is hereby repealed,* and instead thereof the 
 following enactment shall take effect : No Judge of 
 the said Court of Appeal shall sit as a Judge on the 
 hearing of an appeal from any judgment or order made by 
 himself, or made by any Divisional Court of the High 
 Court of which he was andf is a member." If the reader 
 will compare this amendment with section 54 of the Prin- 
 cipal Act, he will see that enactment has been adapted to 
 the present section by leaving out the word "himself," and 
 inserting instead ' ; and is." Under the Act of 1873, section 6, 
 only persons (inter alias) having held in England the office of 
 a Judge of the Superior Courts of Westminster, or of the 
 Supreme Court," could be appointed " Additional Judges." 
 Under the present section the Additional Judges will be 
 persons holding in England the office of Judge of the 
 Superior Courts of Westminster, or of the Supreme Court. 
 Hence the need of inserting the words "andf is," when 
 re-enacting section 54 of the Act of 1873. 
 
 The writer has thought it advisable to lay before the 
 public and the profession this minute history of the suc- 
 cessive steps by which the present section was moulded 
 
 * Query, Did Sir Henry forget that section 54 of the Principal Act 
 made provision that Judges should not sit on appeals from themselves ? 
 t It should be " or."
 
 SUPREME COURT OF JUDICATURE ACT, 1876. 207 
 
 into its present form, in order that they may approach the 
 consideration of the question of the constitution of the 
 Courts of Appeal next Session, with a full knowledge 
 of the various phases through which the question has 
 passed during the past Session in the two Chambers of the 
 Legislature. 
 
 SECTION 5. Tenure of office of Judges, and oaths 
 of office ; Judges not to sit in the House of 
 Commons. 
 
 All the Judges of the High Court of Justice, 
 and of the Court of Appeal respectively, with the 
 exception of the Lord Chancellor, shall hold 
 their offices as such Judges respectively during 
 good behaviour, subject to a power of removal by 
 Her Majesty, on an address presented to Her 
 Majesty by both Houses of Parliament. No 
 Judge of either of the said Courts shall be 
 capable of being elected to or of sitting in the 
 House of Commons. Every person appointed after 
 the passing of this Act to be Judge of either of 
 the said Courts (other than the Lord Chancellor) 
 when he enters on the execution of his office, 
 shall take, in the presence of the Lord Chancellor, 
 the oath of allegiance, and judicial oath as denned 
 by the Promissory Oaths Act, 1868. The oaths 
 to be taken by the Lord Chancellor shall be the 
 same as heretofore. 
 
 This section is substituted for section 9 of the Principal 
 Act, which provided that the Judges should hold office "for 
 life," instead of " during good behaviour " quamdiu sc bcnc 
 gesserint, and omitted the words, " with the exception of the 
 Lord Chancellor." The office of Lord Chancellor is created 
 by the mere delivery of the Great Seal into his possession, 
 without writ or patent. The office ceases when the Lord
 
 208 SCPREME COURT OF JUDICATURE ACT, 1875. '. 
 
 Chancellor delivers up the Great Seal, as he generally does 
 whenever there is a change of ministry. 
 
 " During good behaviour." By the statute 12 and 13 
 Wm. II. c. 3, (A.D. 1700,) it was provided, that 
 " Judges' commissions be made quamdiu se bene gesserint; 
 but upon the Address of both Houses of Parliament 
 it may be lawful to remove them." " To continue 
 Judges in the enjoyment of their offices during their good 
 behaviour notwithstanding any demise of the Crown," 
 it was enacted by the 1 Geo. Ill, c. 23, s. 1, that "the com- 
 missions of Judges for the time being shall be, continue, 
 and remain in full force during good behaviour, not- 
 withstanding the demise of His Majesty (whom God long 
 preserve), or any of his heirs and successors." By s. 2 it was 
 provided that " it may be lawful for His Majesty, his heirs 
 and successors, to remove any Judge or Judges upon the 
 Address of both Houses of Parliament."* 
 
 By 32 and 33 Viet. c. 71, s. 69, officers of any Court 
 having jurisdiction in Bankruptcy are disqualified from 
 sitting in Parliament (see 1 and 2 Wm. IV., c. 56, s. 60.) 
 The Judge of the Admiralty Court is disqualified by 3 and 
 4 Viet., c. 66 (see 20 and 21 Viet. c. 77, s. 10). The Judge 
 of the Probate and Divorce Court was not, it is believed, in- 
 eligible,! prior to the present enactment ; neither was the 
 Master of the Rolls. (Sir George Bowyer tried, but in vain, 
 in Committee on the Bill to retain this privilege of the 
 Master of the Rolls). Previously to the present enactment 
 there was no statutory enactment excluding the Judges from 
 sitting in the House of Commons, but they were declared by 
 the House of Commons itself on 9th November, 1605, J to 
 be ineligible, on the ground that they are the assistants of 
 the House of Lords.! 
 
 The " oath of allegiance and the judicial oath" are thus 
 " defined" by " the Promissory Oaths Act, 1868." 
 
 " The oath in this Act referred to as the oath of alle- 
 giance shall be in the form following, that is to say, 
 
 * It is rather singular that in the present section Judges are said to be 
 remoreable by Her Majesty only, without mentioning " her heirs and 
 successors" as in the old Acts. When repealing s. 9 of the Principal Act 
 and re-enacting it this omission might have been corrected. 
 
 t Rogers on Elections, P. 198, n. (m), 10th ed. 
 
 I 1 Bl. Comm. 175, Com. Jour. 8th Nov., 1605. 
 
 31 and 32 Viet., c. 72.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 209 
 
 < I do swear that I will be faithful 
 
 * and bear true allegiance to Her Majesty Queen Victoria, 
 ' her heirs and successors, according to law. 
 
 ' So help me God.' "* 
 
 " The oath in this act referred to as the judicial oath 
 shall be in the form following : that is to say, 
 ' I do swear that I will well and truly 
 
 ' serve our Sovereign Lady Queen Victoria in the office of 
 , and I will do right to all manner of people after 
 ' the laws and usages of this realm, without fear or favour, 
 ' affection or ill-will. ' So help me God.' "f 
 
 " The oath, of allegiance and judicial oath shall be taken 
 by each of the officers named in the second part of the 
 said Schedule hereto as soon as may be after his acceptance 
 of office, and such oaths shall be tendered and taken in 
 manner in which the oaths required to be taken by such 
 officer previously to the passing of this Act on entering 
 his office would have been tendered and taken. J 
 
 " If any officer specified in the Schedule hereto declines 
 or neglects, when any oath required to be taken by him 
 under this Act is duly tendered, to take such oath, he 
 shall, if he has already entered on his office, vacate the 
 same, and if he has not entered on the same, be disqualified 
 from entering on the same ; but no person shall be com- 
 pelled, in respect of the same appointment to the same 
 office, to take such oath or make such affirmation more 
 times than one." 
 
 The second part of the Schedule includes the following 
 24 names, 22 of which, it will be seen, correspond with the 
 list of names in s. 5 of the Principal Act : 
 
 " The Lord Chancellor of Great Britain. 
 
 " The Lord Chief Justice. 
 
 " The Master of the Rolls. 
 
 " The Chief Justice of the Common Pleas. 
 
 " The Chief Baron of the Exchequer. 
 
 " The Lords Justices of the Court of Appeal in Chan- 
 cery. 
 
 " The Vice-Chancellors. 
 
 " The Puisne Justices of the Queen's Bench. 
 
 * s. 2. t . 4. t i. e. 11 B. r. 
 
 14
 
 210 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 *' The Puisne Justices of the Common Pleas. 
 
 " The Puisne Barons of the Exchequer. 
 
 " The Judge of the Admiralty Court. 
 
 '* The Judge of the Probate Court." 
 
 It will be perceived that the oath of allegiance and the 
 judicial oath are taken by the Lord Chancellor, as well as by 
 the rest of the 21 Judges mentioned in the Schedule. Mr. 
 Wynne Baxter* reproduces from Sir E. Cokef the following 
 formidable list of oaths, which, he says, are taken by the 
 Lord Chancellor : 
 
 " 1. That well and truly he shall serve our Sovereign 
 Lady the Queen and her people in the office of Chancellor. 
 2. That he shall do right to all manner of people, poor and 
 rich, after the laws and usages of the realm. 3. That he 
 shall truly counsel the Queen, and his counsel he shall 
 layne [Norman " to conceal,"] and keep. 4. That he shall 
 not know nor suffer the hurt or disheriting of the Queen, 
 or that the rights of the Crown be decreased by any means 
 as far as he may let it. 5. If he may not let it, he shall 
 make it clearly and expressly to be known to the Queen 
 with his true advice and counsel. 6. And that he shall do 
 and purchase the King's (sic) profit in all that he reason- 
 ably may, as God him help." 
 
 SECTION 6. Precedence of Judges. 
 
 The Lord Chancellor shall be President of the 
 Court of Appeal; the other ex-officio Judges of 
 the Court of Appeal shall rank in the order of 
 their present respective official precedence. The 
 ordinary Judges of the Court of Appeal, if not 
 entitled to precedence as Peers or Privy Coun- 
 cillors, shall rank according to the priority of 
 their respective appointments as such Judges. 
 
 The Judges of the High Court of Justice who 
 
 * Law and Practice of the Supreme Court, p. 158. 
 t 4 Lost., 88.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 211 
 
 are not also Judges of the Court of Appeal shall 
 rank next after the Judges of the Court of Ap- 
 peal, and, among themselves (subject to the pro- 
 visions in the Principal Act contained as to 
 existing Judges) according to the priority of 
 their respective appointments. 
 
 This section is substituted for section 10 of the Princi- 
 pal Act, which is repealed by section 33 of this Act, and 
 the second Schedule, infra. The provisions of the lUth 
 section of the Principal Act relative to the precedence of 
 the " Additional Judges" are omitted. The provision that 
 " the Lord Chancellor shall be President of the Court of 
 Appeal" is taken from the repealed 6th section of the 
 Principal Act : " The Lord Chancellor for the time 
 being shall be President of the Court of Appeal." 
 
 The order of precedence of the ex-officio Judges is as 
 follows : * 
 
 1. The Lord Chancellor. 
 
 2. The Lord Chief Justice of England. 
 
 3. The Master of the Kolls. 
 
 4. The Lord Chief Justice of the Common Pleas. 
 
 5. The Lord Chief Baron. 
 
 This is indeed, the order in which the names are placed 
 in the 4th section, supra. 
 
 SECTION 7. Jurisdiction of Lords Justices in 
 respect of Lunatics < 
 
 Any jurisdiction usually vested in the Lords 
 Justices of Appeal in Chancery, or either of 
 them, in relation to the persons and estates of 
 idiots, lunatics, and persons of unsound mind, 
 
 * See the list in 2 Stoph. Comm., p. 614, n. (x). It is by Lettars Patent 
 9, 10, and 14 Jac. 1 (which see in Seld. Tit. of Hon., Il, 5, 46 ; and 11, 
 3) that the present order was fixed.
 
 212 SUPREME COURT OF JUDICATURE ACT, 1875, 
 
 shall be exercised by such Judge or Judges of 
 the High Court of Justice or Court of Appeal as 
 may be intrusted by the Sign Manual of Her 
 Majesty or Her successors with the care and 
 commitment of the custody of such persons and 
 estates ; and all enactments referring to the Lords 
 Justices as so intrusted shall be construed as if 
 such Judge or Judges so intrusted had been 
 named therein instead of such Lords Justices : 
 Provided that each of the persons who may at 
 the commencement of the Principal Act be Lords 
 Justices of Appeal in Chancery shall, during 
 such time as he continues to be a Judge of the 
 Court of Appeal, and is intrusted as aforesaid, 
 retain the jurisdiction vested in him in relation 
 to such persons and estates as aforesaid. 
 
 By subsection 3 of section 17, it is enacted that " there 
 shall not be transferred to, or vested in the High Court of 
 Justice any jurisdiction usually vested in the Lord Chan- 
 cellor or in the Lords Justices of Appeal in Chancery, or 
 either of them, in relation to the custody of the persons 
 and estates of idiots, lunatics, and persons of unsound 
 mind." 
 
 This enactment is repealed as to successors of the exist- 
 ing Lords Justices of Appeal in Chancery by the present 
 section. 
 
 To save the jurisdiction in lunacy of the Lord Chan- 
 cellor, Mr. Osborne Morgan, Q.C., proposed in Committee on 
 the Bill in the House of Commons to insert the following 
 additional proviso : " Provided also, that nothing herein 
 contained shall affect the jurisdiction usually vested 
 in the Lord Chancellor in relation to the persons 
 and estates of idiots, lunatics, and persons of unsound 
 mind." The Attorney-General, nowever, declined to ac- 
 cept the amendment, on the ground that the jurisdiction in
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 213 
 
 lunacy of the Lord Chancellor is not touched by the present 
 section, which is, in express terms, limited to the jurisdic- 
 tion in lunacy of the Lords Justices of Appeal. 
 
 The office of Lord Justice of Appeal was created in the 
 autumn of 1851.* The Lunacy Regulation Act took effect 
 on the 28th October, 1853, ancl by its interpretation clause f 
 it was enacted, that the expression, " the Lord Chancellor 
 entrusted as aforesaid" (which frequently occurs in the 
 Act) should be construed to mean " the Lord High Chan- 
 cellor of Great Britain for the time being, entrusted, by 
 virtue of the Queen's sign manual, with the care and com- 
 mitment of the custody of the persons and estates of per- 
 sons found idiot, lunatic, or of unsound mind ; and when, 
 and so long as the Lords Justices of the Court of Appeal in 
 Chancery for the time being shall be entrusted as afore- 
 said concurrently with the Lord Chancellor, then, and so 
 long, the expression shall be construed to include, or be 
 applicable to, the Lords Justices aforesaid, so that all the 
 powers, authorities, and duties to be had, exercised, and 
 performed under this Act by the Lord Chancellor entrusted 
 as aforesaid shall, and may be had, exercised, and per- 
 formed as well by the Lord Chancellor, sitting either alone 
 or jointly with both or either of the Lords Justices, or by 
 both of the Lords Justices aforesaid, acting jointly, apart 
 from the Lord Chancellor." 
 
 By the 13th section of the " Court of Chancery Officers 
 Act, 1867,J it is provided, that all the jurisdiction, powers, 
 authorities, and duties of the Lord Justices of the Court of 
 Appeal in Chancery, under ' The Lunacy Regulation Act, 
 1853,' and under any other Act, as being entrusted, by 
 virtue of the Queen's Sign Manual, with the care and com- 
 mitment of the custody of the persons and estates of persons 
 found idiot, lunatic, or of unsound mind, may be exercised 
 and performed, not only by both of the Lords Justices 
 jointly acting and sitting together, but also by either of 
 them alone, acting or sitting separately." 
 
 By section 4 of the present Act, supra, it is enacted 
 that two of the " first ordinary Judges of the Court 
 
 * By the Stat. 14 & 15 Viet., c. 83. 
 t 16 & 17 Viet., c. 70, s. 2. 
 j 30 & 31 Viet., c. 87.
 
 214 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 of Appeal shall be the present Lords Justices of Appeal 
 in Chancery." So that during the continuance in office 
 of the existing Lords Justices,* the proviso at the end 
 of the section will render the rest of the section nuga- 
 tory. On the death of one of them, a new colleague in 
 lunacy matters will probably be associated with the sur- 
 vivor. 
 
 See the note to s. 2, supra. 
 
 SECTION 8. Admiralty Judges and Registrar, 
 Whereas by section 11 of the Principal 
 Act it is provided as follows : " Every existing 
 "judge who is by this Act made a judge of the 
 *' High Court of Justice or an ordinary judge of 
 " the Court of Appeal shall, as to tenure of office, 
 " rank, title, sala.ry, pension, patronage, and 
 " powers or appointment or dismissal, and all other 
 " privileges and disqualifications, remain in the 
 " same condition as if this Act had not passed ; 
 " and. subject to the change effected in their juris- 
 " diction and duties by or in pursuance of the pro- 
 " visions of this Act, each of the said existing 
 " judges shall be capable of performing and liable 
 " to perform all duties which he would have 
 " been capable of performing or liable to perform 
 " in pursuance of any Act of Parliament, 
 " law, or custom if this Act had not passed. 
 "No judge appointed before the passing of this 
 " Act shall be required to act under any commis- 
 '* sion of Assize, Nisi Prius, Oyer and Terminer, 
 " or Gaol Delivery, unless he was so liable by usage 
 " or custom at the commencement of this Act : " 
 
 * Sir "W. Milbourne James and Sir George Hellish.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 215 
 
 And whereas the judge of the High Court of 
 Admiralty is by the Principal Act appointed a 
 judge of the High Court of Justice : 
 
 And whereas such judge is, as to salary and 
 pension, inferior in position to the other puisne 
 judges of the superior Courts of common law, hut 
 holds certain ecclesiastical and other offices in 
 addition to the office of judge of the High Court 
 of Admiralty : 
 
 And whereas it is expedient that such judge, if 
 he he willing to relinquish such other officesj 
 should he placed in the same position as to rank, 
 salary, and pension, as the other puisne judges of 
 the superior Courts of common law : 
 
 Be it enacted that 
 
 If the existing judge of the High Court of 
 Admiralty* under his hand signifies to the Lord 
 Chancellor in writing, before the commencement 
 of the Principal Act, that he is willing to relin-? 
 quish such other offices as aforesaid, and does, 
 before the commencement of the Principal Act, 
 resign all other offices of emolument held by him 
 except the office of Judge of the High Court of 
 Admiralty, he shall, from and after the com^ 
 mencement of the Principal Act, be entitled to 
 the same rank, salary, and pension as if he had 
 been appointed a judge of the High Court of 
 Justice immediately oil the commencement of 
 the Principal Act, with this addition, that in 
 
 * The Right Hon. Sir Robert James Phillimore.
 
 216 SUPREME COURT OF JUDICATURE ACT, 1876. 
 
 reckoning service for the purposes of his pension^ 
 his service as a judge of the High Court of 
 Admiralty shall he reckoned in the same manner 
 as if the High Court of Justice had heen estab- 
 lished at the time of his accepting the office of 
 judge of the High Court of Admiralty, and he 
 had continued from such time to be a judge of 
 the said High Court of Justice. 
 
 The present holder of the office of Registrar of 
 Her Majesty in Ecclesiastical and Admiralty 
 causes shall, as respects any appeals in which he 
 would otherwise he concerned coming within the 
 cognizance of the Court of Appeal, be deemed to 
 be an officer attached to the Supreme Court, and 
 the office, so far as respects the duties in relation to 
 such appeals as aforesaid, shall be deemed to be a 
 separate office within the meaning of section 
 seventy-seven of the Principal Act, and may be 
 dealt with accordingly. He shall be entitled, in so 
 far as he sustains any loss of emoluments by or in 
 consequence of the Principal Act or this Act, to 
 prefer a claim to the Treasury in the same manner 
 as an officer paid out of fees whose emoluments 
 are affected by the passing of the Principal Act 
 is entitled to do under section 80 of the Prin- 
 cipal Act. 
 
 Subject as aforesaid, the person who is ut the 
 time of the passing of this Act Registrar of Her 
 Majesty in Ecclesiastical and Admiralty causes 
 shall, notwithstanding anything in the Principal
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 217 
 
 Act or this Act, have the same rank and hold his 
 office upon the same tenure and upon the same 
 terms and conditions as heretofore ; but it shall 
 be lawful for Her Majesty by Order in Council 
 made upon the recommendation of the Lord 
 Chancellor, with the concurrence of the Treasury, 
 to make, notwithstanding 1 anything? contained in 
 
 v 
 
 any Act of Parliament, such arrangements with 
 respect to the duties of the said last-mentioned 
 office, either by abolition thereof or otherwise, as 
 to Her Majesty may seem expedient : Provided 
 that such Order shall not take effect during the 
 continuance in such office of the said person so 
 being Registrar at the time of the passing of this 
 Act without his assent. 
 
 Every judge of the Probate, Divorce, and 
 Admiralty Division of the said High Court of 
 Justice appointed after the passing of this Act 
 shall, so far as the state of business in the said 
 Division will admit, share with the Judges men- 
 tioned in section thirty-seven of the Principal 
 Act the duty of holding sittings for trials by jury 
 in London and Middlesex, and sittings under 
 commissions of Assize, Oyer and Terminer, and 
 Gaol Delivery. 
 
 See the note to s. 11 of the Principal Act. The section 
 of the Principal Act by which the Judge of the High 
 Court of Admiralty is made a Judge of the High Court 
 of Justice is the 5th. 
 
 The option given to Sir Robert Phillimore of resigning 
 "certain ecclesiastical offices" evidently has reference to
 
 218 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 the provision made for filling such offices by " The Public 
 Worship Act, 1874,"* s. 7 of which enacts, that "when- 
 soever a vacancy shall occur in the office of Official Principal 
 of the Arches Court of Canterbury, the Judge," ap- 
 pointed by the Archbishops of Canterbury and York, 
 under that Act,t "shall become, ex-officio, such Official Prin- 
 cipal ; and all proceedings thereafter taken before the Judge 
 in relation to matters arising within the province of Can- 
 terbury shall be deemed to be taken in the Arches Court 
 of Canterbury ; and whensoever a vacancy shall occur in 
 the office of Master of the Faculties to the Archbishop 
 of Canterbury, such Judge shall become, ex-officio, such 
 Master of the Faculties." 
 
 Sir Robert Phillimore is Official Principal of the 
 Arches Court of Canterbury and Master of the Faculties 
 to the Archbishop of Canterbury, as well as Judge of the 
 High Court of Admiralty. If he resigns before the 1st 
 of November, 1875, these offices, Lord Penzance will at 
 once succeed him under s. 7 of the Public Worship Act, 
 1874, and Sir Robert will, at the same time, in virtue of 
 this act of self=abnegation, immediately become entitled to 
 the same rank, salary, and pension as the other Judges of 
 the High Court of Justice, to whom he is now " inferior in 
 position."! 
 
 The 37th section of the Principal Act only mentioned 
 the " Judges of the Queen's Bench, Common Pleas, and 
 Exchequer Divisions of the High Court," as available for 
 performing " the duty" mentioned in the concluding para-? 
 graph of the present section. 
 
 SECTION 9. London Court of Bankruptcy not to 
 be transferred to High Court of Justice. 
 
 The Jbondon Court of Bankruptcy shall not be 
 united or consolidated with the Supreme Court 
 
 * 37 & 38 Viet, c. 85. f Lord Penzance. 
 
 t It is not a little curious that the present section contains not the 
 Slightest reference o the Public Worship Act, 1874.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 219 
 
 of Judicature, and the jurisdiction of that Court 
 shall not be transferred under the Principal Act 
 to the Iligh Court of Justice, but shall continue 
 the same in all respects as if such transfer had 
 not been made by the Principal Act, and the Prin- 
 cipal Act shall be construed as if such union, con*- 
 solidation, and transfer had not been made : Pro- 
 vided that 
 
 (1.) The office of Chief Judge in Bankruptcy 
 shall be filled by such one of the Judges 
 of the High Court of Justice appointed 
 since the passing of the Bankruptcy Act, 
 1869, or, with his consent, of such one of 
 the Judges appointed prior to the passing 
 of the last-mentioned Act, as may be ap- 
 pointed by the Lord Chancellor to that 
 office ; and 
 
 (2.) The appeal from the London Court of 
 Bankruptcy shall lie to the Court of Ap- 
 peal in accordance with the Principal Act. 
 
 As this section originally stood the words " from time 
 to time " followed the word " shall," in the first subsection. 
 These words were omitted in Committee on the Bill in the 
 House of Commons,* on the motion of Mr. Herschell, Q.C., 
 on the ground that they would give power to the Lord Chan- 
 cellor " to set aside a Judge who might be displeasing to 
 him and appoint another in his place." 
 
 The area of selection of Judges was confined by the present 
 Bill to " Judges of the Exchequer Division of the High 
 Court ;" the words " of the Exchequer Division " were 
 struck out in Committee on the Bill in the House of Com- 
 
 * July oth, 1875. See Times of July 6.
 
 220 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 mons,* on the motion of Mr. Osborne Morgan, Q.C., thus 
 enlarging the area of selection. 
 
 (l.j This section repeals subsection (8) of s. 16, and sub- 
 sections (3) and (4) of clause 4 of section 34 of the Princi- 
 pal Act. Allusions to the London Court of Bankruptcy in 
 the Rules of Court drawn up in 1874 under the Principal 
 Act, have been expunged in the amended edition of these 
 Rules inserted in the first Schedule hereto. 
 
 (2.) The present section, it will be seen, does not affect 
 the provision of subsection (1) of the 18th section of the 
 Principal Act that there shall be transferred to and vested 
 in the Court of Appeal all jurisdiction and power of the 
 Court of Appeal in Chancery as a Court of Appeal in 
 Bankruptcy, under s. 71 of the Bankruptcy Act, 1869.f 
 
 SECTION 10. Amendment of 36 and 37 Viet., c. 
 66, s. 25, as to Rules of Law upon certain 
 points. 
 
 Whereas, by section twenty-five of the Prin- 
 cipal Act, after reciting that it is expedient to 
 amend and declare the law to be thereafter 
 administered in England as to the matters next 
 thereinafter mentioned, certain enactments are 
 made with respect to the law, and it is expedient 
 to amend the said section : Be it therefore enacted 
 as follows : 
 
 Subsection one of clause twenty -five of the 
 Principal Act is hereby repealed, and instead 
 thereof the following enactment shall take 
 effect ; (that is to say) in the administration 
 by the Court of the assets of any person who 
 may die after the commencement of this 
 
 * July 5th, 1876. See Times of July 6th. 
 t See as to this appeal, Roche and Hazlitt on Bankruptcy, pp. 111-113.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 221 
 
 Act, and whose estate may prove to be in- 
 sufficient for the payment in full of his debts 
 and liabilities, and in the winding up of any 
 Company under the Companies Acts, 1862 
 and 1867, whose assets may prove to be 
 insufficient for the payment of its debts and 
 liabilities and the costs of winding up, the 
 same rules shall prevail and be observed as 
 to the respective rights of secured and unse- 
 cured creditors, and as to debts and liabilities 
 proveable, and as to the valuation of annuities 
 and future and contingent liabilities respec- 
 tively, as may be in force for the time being 
 under the Law of Bankruptcy with respect 
 to the estates of persons adjudged bankrupt; 
 and all persons who in any such case would 
 be entitled to prove for and receive dividends 
 out of the estate of any such deceased person, 
 or out of the assets of any such Company, 
 may come in under the decree or order for 
 the administration of such estate, or under 
 the winding up of such Company, and make 
 such claims against the same as they may 
 respectively be entitled to by virtue of this 
 Act. 
 
 In subsection seven of the said section the 
 reference to the date of the passing of the 
 Principal Act shall be deemed to refer to 
 the date of the commencement of the Prin- 
 cipal Act.
 
 222 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 As to subsection 1 of clause 25 of the Principal Act, 
 see the notes to that "clause."* 
 
 The effect of the amendment of subsection (1) of sec- 
 tion 25 of the Principal Act, by this section, is to make 
 the rules of Bankruptcy " as to the respective rights of 
 secured and unsecured creditors, and as to debts and liabi- 
 lities proveable, and as to the valuation of annuities and 
 future or contingent liabilities respectively," applicable 
 to the winding up under the Companies Acts, 1862 and 
 1867, of Companies whose assets may prove to be insuf- 
 ficient, as well as in the administration by the Court 
 of the assets of persons whose estate may prove to be 
 insufficient. 
 
 It will be perceived, on comparing the substituted 
 provisions with those of the repealed subsection', that 
 the words " after the commencement of this Act " are 
 substituted for " after the passing of this Act." Sub- 
 section (1) of s. 25 of the Principal Act in its un- 
 amended form applied, it is apprehended, to the adminis- 
 tration by the Court of the assets of any person who died 
 after the passing and before the commencement of the 
 Principal Act, i.e., between the 5th of August, 1873, and the 
 1st of November, 1875. The repeal is not retrospective, 
 and therefore, as the present section does not come into 
 operation until the 1st ^November, 1875, the Principal Act 
 cannot be affected by it until then. On and after the 1st 
 November, 1875, subsection (1) of the 25th section of the 
 Principal Act, will only apply to the administration of the 
 assets of persons who die after that date. 
 
 In subsection (7) of s. 25 there is a somewhat similar slip. 
 
 The present section attempts to cure it, but it is 
 apprehended, that in this case the subsection does not 
 stand in need of any cure. The subsection provides that 
 stipulations in contracts as to time or otherwise which 
 would not before the passing of the Act (i.e., before the 
 5th August, 1873) have been deemed to be or to have 
 become of the essence of such contracts in a Court of 
 Equity, shall receive in all Courts the same construction 
 and effect as they would have heretofore received in Equity. 
 
 * It should have been " section," as in the preamble.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 223 
 
 The expression " passing of this Act/' in this subsection 
 only fixes the time at which the particular construction was 
 received in Equity, and does not say that it shall receive the 
 same construction in other Courts at and from that time, 
 i.e., the 5th August, 1873. The only effect of the amend- 
 ment introduced into subsection (7) of the Principal Act 
 by the present section is to fix the 1st November, 1875, 
 as the date at which the particular construction was re- 
 ceived in Equity, and as the particular construction received 
 in Equity then will be the same as that received in Equity 
 on the 5th August, 1 873, the attempt to amend subsection 
 (7) of the principal Act is$ it is submitted, unnecessary. 
 
 SECTION 11. Provision as to option for any 
 Plaintiff (subject to Rules) to choose in what 
 Division he will sue, in substitution for 36 and 
 37 Viet., c. 66, s. 35. 
 
 Subject to any Rules of Court and to the pro- 
 visions of the Principal Act and this Act and to 
 the power of transfer, every person by whom any 
 cause or matter may be commenced in the said 
 High Court of Justice shall assign such cause or 
 matter to one of the Divisions of the said Hi^h 
 Court as lie may think fit, by marking the docu- 
 ment by which the same is commenced with the 
 name of such Division, and giving notice thereof to 
 the proper officer of the Court : Provided, that 
 (1.) All interlocutory and other steps and 
 proceedings in or before the said High 
 Court in any cause or matter subsequent 
 to the commencement thereof, shall be 
 taken (subject to any Rules of Court and to 
 the power of transfer) in the Division of
 
 224 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 the said High Court to which such cause 
 or matter is for the time heing attached ; 
 and 
 
 (2.) If any plaintiff or petitioner shall at any- 
 time assign his cause or matter to any 
 Division of the said High Court to which, 
 according to the Rules of Court or the 
 provisions of the Principal Act or this Act 
 the same ought not to be assigned, the 
 Court, or any Judge of such Division, upon 
 heing informed thereof, may on a summary 
 application at any stage of the cause or 
 matter, direct the same to be transferred to 
 the Division of the said Court to which, 
 according to such Rules or provisions, the 
 same ought to have been assigned, or he 
 may, if he think it expedient so to do, 
 retain the same in the Division in which 
 the same was commenced ; and all steps 
 and proceedings whatsoever taken by the 
 plaintiff or petitioner, or by any other party 
 in any such cause or matter, and all Orders 
 made therein by the Court or any Judge 
 thereof before any such transfer shall be 
 valid and effectual to all intents and pur- 
 poses in the same manner as if the same 
 respectively had been taken and made in 
 the proper Division of the said Court to 
 which such cause or matter ought to have 
 been assigned ; and
 
 SUPREME COUKT OF JUDICATURE ACT, 1875. 225 
 
 (3.) Subject to Rules of Court, a person com- 
 mencing any cause or matter shall not 
 assign the same to the Probate, Divorce, 
 and Admiralty Division unless he would 
 have been entitled to commence the same 
 in the Court of Probate, or in the Court 
 for Divorce and Matrimonial Causes, or in 
 the High Court of Admiralty, if this Act 
 had not passed. 
 
 This section is substituted for section 35 of the Principal 
 Act which is repealed by this Act (section 33, and tho 
 second Schedule). The whole of section 35 of the Principal 
 Act is re-enacted verbatim by the present section, sub- 
 section 3 being added to it, in order to obviate the incon- 
 venience which might have arisen from plaintiffs " assigning 
 causes" in the first instance to the Probate, Divorce, and 
 Admiralty Divisions, although wholly unsuited to be tried 
 there. (ISee Order V., Rule 4, infra, and the note thereto.) 
 
 The " notice to the proper officer " of the assignment of 
 an action to any Division of the Court under this section 
 will be sufficiently given by leaving with him a copy of the 
 writ of summons. (Order V, Rule 9, of the Schedule to 
 this Act.) 
 
 SECTION 12. Sittings of Court of Appeal. 
 
 Every appeal to the Court of Appeal shall, where 
 the subject-matter of tbe appeal is a final order, 
 decree, or judgment, be heard before not less than 
 three Judges of the said Court sitting together, 
 and shall, when the subject-matter of the appeal 
 is an interlocutory order, decree, or judgment, 
 be heard before not less than two Judges of the 
 
 said Court sitting together. 
 15
 
 226 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Any doubt which may arise as to what decrees, 
 orders, or judgments are final, and which are 
 interlocutory, shall be determined by the Court 
 of Appeal. 
 
 Subject to the provisions contained in this 
 section the Court of Appeal may sit in two 
 Divisions at the same time. 
 
 This section is substituted for s. 53 of the Principal Act, 
 which is repealed by s. 33, and the 2nd Schedule hereto 
 ( see the note to the repealed section.) Some of the provision s 
 are similar to those of the repealed enactment the quorum 
 of three, and the power to form Divisional Courts. But these 
 provisions are qualified by others. The quorum of three 
 only applies where the appeal is from " a final order, decree, 
 or judgment." When an appeal is from an interlocutory 
 decree, order, or judgment, the quorum may be reduced to 
 two, and the Court of Appeal is itself to decide when the 
 quorum of two will be sufficient. 
 
 As the Ordinary Judges of the Court of Appeal are only 
 three in number, it will be necessary to send, over to the 
 Common Law Divisions for an Additional Judge, or to 
 secure the attendance of an ex-officio Judge to make up a 
 sufficient quorum for appeal, even on interlocutory matters, 
 if the Court of Appeal is to sit in two Divisions. 
 
 The power of sitting in two Divisions, may, however, 
 prove useful in the event of a press of business. 
 
 SECTION 13. Amendment ofs. 60 of 36 and 37 
 Viet., c. 66, as to District Registrars. 
 
 "Whereas by section sixty of the Principal Act it 
 is provided that for the purpose of facilitating the 
 prosecution in country districts of legal proceed- 
 ings, it shall be lawful for Her Majesty by Order
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 227 
 
 in Council from time to time to direct that there 
 shall be District Registrars in such places as shall 
 be in such Order mentioned for districts to be 
 thereby defined; and whereas it is expedient to 
 amend the said section, Be it therefore enacted 
 that 
 
 Where any such Order has been made, two 
 persons may, if required, be appointed to perform 
 the duties of District Registrar in any district 
 named in the Order, and such persons shall be 
 deemed to be joint District Registrars, and shall 
 perform the said duties in such manner as may 
 from time to time be directed by the said Order, 
 or any Order in Council amending the same. 
 
 Moreover, the Registrar of any inferior court of 
 record having jurisdiction in any part of any 
 district denned by such Order (other than a 
 county court) shall, if appointed by Her Majesty, 
 be qualified to be a District Registrar for the said 
 district, or for any and such part thereof as may 
 be directed by such Order or any Order amending 
 the same. 
 
 Every District Registrar shall be deemed to be 
 an officer of the Supreme Court, and be subject 
 accordingly to the jurisdiction of such Court, and 
 of the Divisions thereof. 
 
 The persons specially indicated by section 60 of the 
 Principal Act as eligible for the office of District Registrar 
 are " any Registrar of any County Court or any Registrar 
 or Prothonotary or District Prothonotary of any local 
 Court whose jurisdiction is" thereby "transferred to the 
 High Court of Justice, or from which an appeal is
 
 228 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 thereby given to the Court of Appeal ; or any person, who, 
 having been a District Registrar of the Court of Probate, or 
 of the Admiralty Court, shall under " that "Act become and 
 be a District Registrar of the High Court of Justice, or who 
 shall be appointed such District Registrar." For a list of 
 " the local courts whose jurisdiction is transferred by the 
 Principal Act to the High Court of Justice," see section 16 
 of the Principal Act. For a list of the " local courts from 
 which an appeal is given to the Court of Appeal," see 
 section 18 of the Principal Act. 
 
 On the 12th of August, 1875, the day before the present 
 Act received the Royal Assent, Her Majesty in Council, in 
 exercise of the powers conferred upon Her by s. 60 of the 
 Principal Act, was pleased to order : " That there shall be 
 District Registrars in the places of Liverpool, Manchester, 
 and Preston, and the District Registrar at Liverpool of the 
 High Court of Admiralty, and the District Prothonotary 
 at Liverpool of the Court of Common Pleas at Lancaster, 
 shall be and are hereby appointed the District Registrars 
 in Liverpool ; and the District Prothonotary at Manchester 
 of the said Court of Common Pleas shall be and is hereby 
 
 appointed the District Registrar in Manchester; and the 
 District Prothonotary at Preston of the said Court of 
 Common Pleas shall be and is hereby appointed the Dis- 
 trict Registrar at Preston ; and that the district for each 
 such place shall be the district now assigned to each such 
 District Prothonotary, under the provisions and authority 
 of the Common Pleas at Lancaster Amendment Act, 
 1869. 
 
 " That there shall be a District Registrar in Durham, 
 and that the District Prothonotary of the Court of Common 
 Pleas at Durham shall be and is hereby appointed the District 
 Registrar in Durham; and that the district shall be the 
 district, for the time being, of the County Court holden at 
 Durham. 
 
 " That in the places mentioned in the Schedule annexed, 
 there shall be District Registrars, and that the Registrar 
 of the County Court held in any such place shall be and is 
 hereby appointed the District Registrar in such place, and 
 that the district for each such place shall be the district, for 
 the time being, of the County Court holden at such place."
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 229 
 
 The Schedule contains the names of the following 
 places : Bangor, Barnsley, Barnstaple, Bedford, Birken- 
 head, Birmingham, Boston, Bradford, Bridgewater, 
 Brighton, Bristol, Bury St. Edmunds, Cambridge, Cardiff. 
 Carlisle, Carmarthen, Cheltenham, Chester, Colchester, 
 Derby, Dewsbury, Dover, Dorchester, Dudley, East Stone- 
 house, Exeter, Gloucester, Great Grimsby, Great Tar- 
 mouth, Halifax, Hanley, Hartlepool, Hereford, Hudders- 
 field, Ipswich, Kingston-on-Hull, Kings Lynn, Leeds, 
 Leicester, Lincoln, Lowestoft, Maidstone, Newcastle-upon- 
 Tyne, Newport, Monmouthshire, Newport, Isle of Wight, 
 Newtown, Northampton, Norwich, Nottingham, Oxford, 
 Pembroke Docks, Peterborough, Poole, Portsmouth, Rams- 
 gate, Rochester, Sheffield, Shrewsbury, Southampton, 
 Stockton- on-Tees, Sunderland, Swansea, Truro, Totnes, 
 Wakefield, Walsall, Whitehaven, Wolverhampton, Wor- 
 cester, York. It is apprehended that under the present 
 section the District Registrar at Liverpool of the High 
 Court of Admiralty, and the District Prothonotary at 
 Liverpool of the Court of Common Pleas at Lancaster will 
 be "joint District Registrars for Liverpool." 
 
 Every effort, it will be seen, has been made to confer, as 
 far as practicable, upon the suitors of the Counties Palatine 
 of Lancaster and Durham, advantages similar to those which 
 they derived from the abolished jurisdiction of their local 
 Courts. 
 
 SECTION 14. Amendment of 36 and 37 Viet., c. 66. 
 s. 87, as to enactments relating to attorneys. 
 
 Whereas under section eighty-seven of the 
 Principal Act, Solicitors and Attorneys will, after 
 the commencement of that Act, be called Solicitors 
 of the Supreme Court : Be it therefore enacted 
 that- 
 
 The Registrar of Attorneys and Solicitors in 
 England shall be called the Registrar of Solicitors, 
 and the Lord Chief Justice of England, the
 
 230 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Master of the Rolls, the Lord Chief Justice of 
 the Court of Common Pleas, and the Lord Chief 
 Baron, or any two of them, may, from time to 
 time, hy regulation adapt any enactments relating 
 to Attorneys and any declaration, certificate, or 
 form required under those enactments to the 
 Solicitors of the Supreme Court under section 
 eighty-seven of the Principal Act. 
 
 This section supplies an extraordinary omission in the 
 Supreme Court of Judicature Bill, 1874. No power was 
 taken in that Bill to adapt the existing law relative to the 
 registration of Attorneys and Solicitors to the changes intro- 
 duced by section 87 of the Principal Act.* It was the opinion 
 of those best qualified to judge of the matter that, on and 
 after the 1st of November, 1874, no person could have 
 been entered on the registrar of the Incorporated Law 
 Society as an Attorney-at-Law. 
 
 SECTION 15. Appeal from Inferior Court of 
 Record. 
 
 It shall he lawful for Her Majesty from time 
 to time, by Order in Council, to direct that the 
 enactments relating to appeals from County 
 Courts shall apply to any other interior Court of 
 Record; and those enactments, subject to any 
 exceptions, conditions, and limitations contained 
 in the Order, shall apply accordingly, as from the 
 date mentioned in the Order. 
 
 * At the request of Mr. Williamson, the Secretary of the Incorporated 
 Law Society, the writer placed an amendment to clause 15 of the Su- 
 preme Court of Judicature Bill, 1874, on the notice paper of the House 
 of Commons, giving the Secretary power to adapt the registration forms 
 then in use by the Society to the provisions of that measure.
 
 SUPREME COURT OF JUDICATURE ACT, 187JX 231 
 
 The enactments relating to appeals from County Courts 
 are specified in the notes to section 45 of the Principal 
 Act. Under that section the appeal from County Courts 
 will, in all cases, except the case of appeals under the 
 Bankruptcy Act, 1869, He to Divisional Courts of the High 
 Court of Justice.* 
 
 SECTION IS. Rules in Schedule in substitution 
 for 36 8f 37 Viet., c. 66, s. 69 and Schedule. 
 The Riles of Court in the first Schedule to 
 this Act siall come into operation at the com- 
 mencemen, of this Act, and as to all matters 
 to which tiey extend shall thenceforth regulate 
 the proceecmgs in the High Court of Justice 
 and Court cf Appeal. But such Rules of Court 
 and also all aich other Rules of Court (if any) as 
 may be macb after the passing and before the 
 commencement of this Act under the authority 
 of the next section may be annulled or altered 
 by the authoity by which TLQW Rules of Court 
 may be made after the commencement of this 
 Act. 
 
 This section is substituted for section 69 of the Principal 
 Act, which is roealed by section 33 of this Act, and the 
 second Schedule. Section 69 of the Principal Act is prac- 
 tically re-enacted by the present section, f but with the 
 necessary alteratms to adapt its provisions to the first 
 Schedule of this At. 
 
 The Rules of Cart in the first Schedule hereto consist 
 partly of the Ruk appended to the Principal Act, and of 
 the Rules drawn v> under that Act in 1874, both having 
 been revised and aapted to the present Act. 
 
 * See further as to iferior Courts and their Jurisdiction, part vi. of 
 the Principal Act. 
 
 t See the note to thanection at p. 134.
 
 232 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 The last clause of the section will, of course, apply to 
 the new. Eules issued by Her Majesty in Council on the 
 12th of August, 1875. 
 
 SECTION 17. Provision as to making, fyc., of Rules 
 of Court before or after the commencenent of 
 the Act, in substitution for 36 and 37 Viet., 
 c. 66, ss. 68 and 74, and Schedule. 
 
 Her Majesty may, at any time after ibe pass- 
 ing, and before tbe commencement, of this Act, 
 by Order in Council, made upon the recommen- 
 dation of the Lord Chancellor and the iord Chief 
 Justice of England, the Master of the Rolls, the 
 Lord Chief Justice of the Common Pleas, the 
 Lord Chief Baron of the Exchequer, and the 
 Lords Justices of Appeal in Chancsry, or any 
 five of them, and the other Juqges of the 
 several Courts intended to be unitedand consoli- 
 dated by the Principal Act, as ameaded by this 
 Act, or of a majority of such other thdges, make 
 any further or Additional Rules <f Court for 
 carrying the Principal Act and uis Act into 
 effect, and, in particular, for all o any of the 
 following matters, so far as they ar< not provided 
 for by the Rules in the first Scfedule to this 
 Act ; that is to say, 
 
 (1.) For regulating the sitting) of the High 
 Court of Justice and the Cart of Appeal, 
 and of any Divisional or o the Courts thereof 
 respectively, and of the Juges of the said 
 High Court sitting in Chambers ; and
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 233 
 
 (2,) Por regulating the pleading, practice, and 
 procedure in the High Court of Justice 
 and Court of Appeal ; and 
 
 (3.) Generally, for regulating any matters re- 
 lating to the practice and procedure of the 
 said Courts respectively, or to the duties 
 of the officers thereof, or of the Supreme 
 Court, or to the costs of proceedings therein. 
 
 Prom and after the commencement of this Act, 
 the Supreme Court may at any time, with the 
 concurrence of a majority of the Judges thereof 
 present at any meeting for that purpose held (of 
 which majority the Lord Chancellor shall be one), 
 alter and annul any Rules of Court for the time 
 being in force, and have and exercise the same 
 power of making Rules of Court as is by this 
 section vested in Her Majesty in Council on the 
 recommendation of the said Judges before the 
 commencement of this Act. 
 
 All Rules of Court made in pursuance of this 
 section shall be laid before each House of Parlia- 
 ment within such time, and shall be subject to be 
 annulled in such manner as is in this Act pro- 
 vided. 
 
 All Rules of Court made in pursuance of this 
 section, if made before the commencement of 
 this Act, shall from and after the commencement 
 of this Act, and if made after the commencement 
 of this Act, shall, from and after they come into 
 operation, regulate all matters to \vhich they
 
 234 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 extend, until annulled or altered in pursuance of 
 this section. 
 
 The reference to certain Judges in section 
 twenty-seven of the principal Act shall be deemed 
 to refer to the Judges mentioned in this section 
 as the Judges on whose recommendation an 
 Order in Council may be made. 
 
 This section is substituted for sections 68 and 74 of the 
 principal Act, which are repealed by section 33 and the 
 second Schedule to this Act. 
 
 As the present section originally stood, the words 
 "including all matters connected with writs, forms of 
 actions, parties to actions, evidence, and mode of trial," 
 followed the words, " Court of Appeal," in the second sub- 
 section. Mr. Butt, however, moved in Committee on the 
 Bill in the House of Commons* to omit the former words, 
 on the ground that the powers which they conferred on the 
 Judges were too extensive,! and the Attorney-General 
 accepted the amendment. There is now some tautology in 
 subsections (2) and (3). 
 
 On the 12th of August, 1875, Her Majesty in Council in 
 exercise of the powers conferred upon Her by this section, 
 was pleased, upon the recommendation of the Lord Chan- 
 cellor, the Lord Chief Justice of England, the Master of the 
 Rolls, the Lord Chief Justice of the Common Pleas, the 
 Lord Chief Baron, and the Lords Justices of Appeal, 
 and a majority of the other Judges, to make and issue six 
 new Orders! regulating the printing of proceedings, and 
 the cost of proceedings in the Supreme Court. These new 
 Orders will be found at the end of this volume. 
 
 The " certain judges," referred to in section 27, are 
 empowered thereby to make Orders before the commence- 
 ment of the Act regulating vacations. 
 
 * July 5th, 1875. See Times of July 6th. 
 
 t " This sub-section would give the judges power to abolish trial by 
 jury." The amendment was supported bv the Right Hon. Hugh Law, 
 Q.C.. and Mr. Waddy, Q.C. Times, July," 6th, 1875. 
 
 Published in the London Gazette of 24th August, 1875.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 235 
 
 SECTION 18. Provision as to Rules of Probate, 
 Divorce, and Admiralty Courts, being Rules 
 of the High Court, in substitution for 36 
 and 37 Viet., c. 66, s. 70. 
 
 All Rules and Orders of Court in force at the 
 time of the commencement of this Act in the 
 Court of Probate, the Court for Divorce and 
 Matrimonial Causes, and the Admiralty Court, or 
 in relation to appeals from the Chief Judge in 
 Bankruptcy, or from tiie Court of Appeal in 
 Chancery in bankruptcy matters, except so far as 
 they are expressly varied by the first Schedule 
 hereto, or by Rules of Court made by Order in 
 Council before the commencement of this Act, 
 shall remain and be in force in the High Court of 
 Justice and in the Court of Appeal respectively 
 until they shall respectively he altered or annulled 
 by any Rules of Court made after the commence- 
 ment of this Act. 
 
 The present Judge of the Probate Court and 
 of the Court for Divorce and Matrimonial Causes 
 shall retain, and the President for the time being 
 of the Probate and Divorce Division of the High 
 Court of Justice shall have, with regard to non- 
 contentious or common form business in the Pro- 
 bate Court, the powers now conferred on the Judge 
 of the Probate Court by the thirtieth section of the 
 twentieth and twenty-first years of Victoria, chap- 
 ter seventy-seven, and the said Judge shall retain, 
 and the said President shall have, the powers as to
 
 236 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 the making of rules and regulations conferred by 
 the fifty -third section of the twentieth and twenty- 
 first years of Victoria, chapter eighty-five. 
 
 This section is substituted for section 70 of the Principal 
 Act, which is repealed by section 33 and the second Schedule 
 of this Act. The repealed enactment is re-enacted by the 
 present section, with the alterations necessary to adapt it 
 to the first Schedule of this Act and to the 9th section, supra. 
 
 The words " London Court of Bankruptcy " are omitted, 
 and the words " or in relation to appeals from the Chief 
 Judge in Bankruptcy or from the Court of Appeal in 
 Chancery in Bankruptcy matters " are substituted. 
 
 For a list of the authorities which contain the Rules and 
 Orders referred to in this section, see the note to s. 70 of 
 the Principal Act, p. 136. 
 
 Section 30 of the 20 and 21 Yict., c. 77, empowers the 
 Judge of the Probate Court to make " Rules and Orders." 
 
 SECTION 19. Provisions as to Criminal Procedure, 
 subject to future Rules remaining unaltered, 
 in substitution for 36 and 37 Viet., c. 66, s. 71. 
 
 Subject to the first Schedule hereto and any 
 Rules of Court to be made under this Act, the 
 practice and procedure in all criminal causes and 
 matters whatsoever in the High Court of Justice 
 and in the Court of Appeal respectively, includ- 
 ing the practice and procedure with respect to 
 Crown Cases Reserved, shall be the same as the 
 practice and procedure in similar causes and 
 matters before the commencement of this Act. 
 
 This section is substituted for section 71 of the Principal 
 Act, which is repealed by section 33 and the second 
 Schedule to this Act. The seventy-first section of the 
 Principal Act is re-enacted by the present section with the 
 alterations necessary to adapt it to the first Schedule of
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 237 
 
 this Act, " subject to the first Schedule hereto and any 
 Bules of Court to be made under this Act " being substi- 
 tuted for " subject to any Rules of Court to be made under 
 and by virtue of this Act." 
 
 " Crown cases reserved " the interpretation clause of the 
 Principal Act (s. 100) applies to this Act, by virtue of 
 s. 1 supra. 
 
 " Crown cases reserved," therefore, means (p. 170) such 
 questions of law reserved on criminal trials as are mentioned 
 in the Act of the llth and 12th years of Her Majesty's 
 reign, chapter 78. See s. 47 of the Principal Act and the 
 note thereto. 
 
 SECTION 20. Provision as to Act not affecting 
 Rules of Evidence or Juries, in substitution 
 for 36 and 37 Viet. c. 66, s. 72. 
 Nothing in this Act or in the first Schedule 
 hereto, or in any Rules of Court to be made 
 under this Act, save as far as relates to the power 
 of the Court for special reasons to allow deposi- 
 tions or affidavits to he read, shall affect the 
 mode of giving evidence by the oral examination 
 of witnesses in trials by jury, or the rules of 
 evidence, or the law relating to jurymen or juries. 
 
 This is one of the transition clauses of this Act. This 
 section is substituted for section 72 of the Principal Act, 
 which is repealed by section 33 and the second Schedule 
 of this A.ct. The 72nd section of the Principal Act is 
 re-enacted by the present section with the addition of the 
 word " first " before " schedule." " Save as far as relates 
 to the power of the power of the Court for special reasons 
 to allow depositions or affidavits to be read." This has 
 reference to Order XXXVII, Rules 1 and 2 of the first 
 Schedule hereto : " In the absence of any agreement 
 between the parties, and subject to these Rules, the wit- 
 nesses at the trial of any action or at any assessment of 
 damages, shall be examined viva voce and in open Court,
 
 238 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 but the Court or a Judge may at any time for sufficient 
 reason order that any particular fact or facts may be 
 proved by affidavit, or that the affidavit of any witness 
 may be read at the hearing or trial, on such conditions as 
 the Court or Judge may think reasonable, or that any 
 witness whose attendance in Court ought for some suffi- 
 cient cause to be dispensed with, be examined by interro- 
 gatories or otherwise before a commissioner or examiner ; 
 provided that where it appears to the Court or Judge that 
 the other party bond fide desires the production of a wit- 
 ness for cross-examination, and that such witness can be 
 produced, an order shall not be made authorising the 
 evidence of such witness to be given by affidavit.* Upon 
 any motion, petition, or summons evidence may be given 
 by affidavit ; but the Court or a Judge may, on the appli- 
 cation of either party, order the attendance for cross-ex- 
 amination of the person making any such affidavit."! 
 
 Order XXXVIII regulates the practice where evidence 
 is allowed to be given by affidavit. As to oral evidence, 
 see C. L. P. Act, 1854, SB. 18-31. 
 
 " Trials by jury or the rules of evidence." See section 
 22, infra. As to "Juries," see 6 George IV., c. 50; 25 
 and 26 Viet., c. 107, and 33 and 34 Viet., c. 77. 
 
 SECTION 21. Provision for saving of existing 
 procedure of courts when not inconsistent with 
 this Act or Rules of Court in substitution for 
 36 and 37 Viet., c. 66, *. 73. 
 Save as by the Principal Act or this Act, or 
 by any Rules of Court, may be otherwise pro- 
 vided, all forms and methods of procedure which 
 at the commencement of this Act were in force 
 in any of the courts whose jurisdiction is by the 
 Principal Act or this Act transferred to the said 
 High Court and to the said Court of Appeal re- 
 spectively, under or by virtue of any law, custom, 
 
 * This Rule is a re-enactment of Rule 36 of the Principal Act. 
 t This Rule is a re-enactment of Rule 37 of the Principal Act.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 239 
 
 general order, or rules whatsoever, and which are 
 not inconsistent with the Principal Act or this 
 Act, or with any Rules of Court, may continue to 
 be used and practised, in the said High Court of 
 Justice and the said Court of Appeal respectively 
 in such and the like cases, and for such and the 
 like purposes, as those to which they would have 
 been applicable in the respective courts of which 
 the jurisdiction is so transferred, if the Principal 
 Act and this Act had not passed. 
 
 This is one of the transition clauses of this Act. This 
 section is substituted for section 73 of the Principal Act 
 which is repealed by section 33 of the second Schedule 
 to this Act. The 73rd section of the Principal Act is 
 re-enacted by the present section, with the alterations neces- 
 sary to adapt it to the present enactment, as weU as the 
 Principal Act. 
 
 The next section was originally an amendment to the 
 present section proposed by Mr. Watkin Williams, Q.C., 
 and accepted by the Attorney-General, in Committee on 
 the Bill in the House of Commons. By some mysterious 
 process in the House of Lords the amendment was severed 
 from the present section, to which it was attached in the 
 copy of the Bill as amended in Committee, printed for the 
 use of the House of Commons on the motion of the writer, 
 and reappeared in the Queen's printer's copy, as a sepa- 
 rate section, with a marginal note to itself. 
 
 There can be little doubt that the transformation of the 
 amendment of Mr. Williams into a separate section is a 
 decided improvement.* 
 
 SECTION 22. Nothing in principal Act to preju- 
 dice right to have issues submitted, fyc. 
 Whereas by section forty-six of the principal 
 
 * It involved, however, an alteration in the numbering of all the sub- 
 sequent clauses, making clause 32, the repealing clause, e.g., section 33.
 
 240 SUPREME COURT OF JUDICATURE ACT, 1876. 
 
 Act it is enacted that " any Judge of the said 
 " High Court sitting in the exercise of its juris- 
 " diction elsewhere than in a Divisional Court may 
 " reserve any case, or any point in a case, for the 
 " consideration of a Divisional Court, or may direct 
 " any case or point in a case to be argued before a 
 " Divisional Court : " Be it hereby enacted, that 
 nothing in the said Act, nor in any Eule or Order 
 made under the powers thereof or of this Act, 
 shall take away or prejudice the right of 
 any party to any action to have the issues 
 for trial, by jury submitted and left by the 
 Judge to the jury before whom the same 
 shall come for trial, with a proper and com- 
 plete direction to the jury upon the law, and as 
 to the evidence applicable to such issues : 
 
 Provided also, that the said right may be en- 
 forced either by motion in the High Court of Jus- 
 tice or by motion in the High Court of Appeal 
 founded upon an exception entered upon or 
 annexed to the record. 
 
 The marginal note to this section is not very intelligible, 
 but it was only added, it is believed, after the Bill received 
 the Royal Assent, when Mr. Watkin "Williams' amend- 
 ment to the preceding section was mvsteriously transformed 
 into a separate section.* See s. 46 of the Principal Act, 
 and the note thereto, at p. 107. 
 
 Trial by jury is generally considered to hare had its 
 origin in the famous declaration of King John in Magna 
 Charta :f " Nullus liber homo capiatur, vel imprisomtur 
 
 * See the note to the preceding section, 
 t It now appears in 9 Hen. Ill, c. 2.
 
 SUPREME COURT OF JUDICATURE ACT, 1875 241 
 
 aut disseiziatur de libero tenemento suo, vel de libertatibus vel 
 liberis consuedinibus suis, aut utlagetur aut exulet, aut aliquo 
 modo dfstruatur,nec super eum ibimm,nec super eum mittemus, 
 nisi per legate judicium parium suorum vel per Icgem terrce." 
 
 The " lex terrce " referred, Mr. Hallam believes,* to trial 
 by combat and by ordeal, the latter including " trial by 
 handling or walking on red hot iron, by plunging the arm 
 into boiling fluids, by floating or sinking in cold water, 
 or by swallowing a piece of consecrated bread. "f Mr. 
 ChuteJ seeks to connect it with the power assumed by the 
 Court of Chancery, in defiance of the common law, of 
 imprisoning for contempt of Court. 
 
 The common lawyers in the House of Commons viewed 
 with considerable alarm the sweeping powers confided to 
 the Judges by the Judicature Act of 1878, and the present 
 measure. It was in deference to this feeling that the 
 following subsection of clause 33 was left out : " There shall 
 be repealed, from and after the date at which any Order in 
 Council, or Rule of Court, or Order of the Lord Chancellor, 
 made in pursuance of or for the purposes of this Act is made, 
 any provision of any Act of Parliament inconsistent with such 
 Order in Council, Rule of Court, or Order of the Lord Chan- 
 cellor." It was in deference to this feeling that the Queen 
 in Council was deprived (if she has been deprived) of the 
 power regulating all matters connected with " forms of 
 actions," "evidence," and "mode of trial," which was con- 
 ferred upon her by subsection (2) of section 1 7, as it came 
 down from the Lords. It was in deference to this feeling 
 that the 4th section was ultimately settled so as to exclude 
 from the possibility of being invited to sit as "Additional 
 Judges" in the Court of Appeal, the members of the 
 Chancery Division of the High Court. Lastly, it was in 
 deference to the same feeling that the amendment of 
 Mr. "Watkin Williams, which forms the present section, was 
 embodied in this Act. 
 
 * Hallam's Middle Ages, Vol. II, p. 328 n (r), 12th edition. 
 
 t Ibid. Vol. Ill, p. 294. J p. 155. 
 
 $ As the amendment originally stood, it had in the margin the follow- 
 ing references : 13 Ed. 1, st. 1, c. 31 ; 3 and 4 Viet. c. 65, s. 15 ; 15 and 
 16 Viet., c. 76, s. 184 ; 20 and 21 Viet., c. 85, s. 39 ; 22 and 23 Viet., c. 21 ; 
 23 and 24 Viet., c. 144, s. 1. These references hare heen omitted in the 
 Act as printed by the Queen's printer. They connected the amendment 
 with the abolition of Bills of Exceptions by Order LV1IL, Rule 1, infra, 
 
 16
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 SECTION 23. Regulation of Circuits. 
 
 Her Majesty may at any time after the passing 
 of this Act, and from time to time, by Order in 
 Council, provide in such manner and subject to 
 such regulations as to Her Majesty may seem 
 meet, for all or any of the following matters : 
 
 1. For the discontinuance, either temporarily 
 
 or permanently, wholly or partially, of any 
 existing Circuit, and the formation of any 
 new Circuit by the union of any counties 
 or parts of counties, or partly in one way 
 and partly in the other, or by the consti- 
 tution of any county or part of a county to 
 be a Circuit by itself ; and, in particular, for 
 the issue of commissions for the discharge 
 of civil and criminal business in the 
 county of Surrey to the Judges appointed 
 to sit for the trial by jury of causes and 
 issues in Middlesex or London, or any of 
 them ; and 
 
 2. For the appointment of the place or places 
 
 at which Assizes are to to be holden on 
 any Circuit ; and 
 
 3. For altering, by such authority and in such 
 
 manner as may be specified in the Order, 
 the day appointed for holding the Assizes 
 at any place on any Circuit in any case, 
 where, by reason of the pressure of busi-
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 243 
 
 ness or other unforeseen cause, it is expe- 
 dient to alter the same ; and 
 4. Eor the regulation, so far as may be neces- 
 sary for carrying into effect any Order 
 under this section, of the venue in all 
 cases, civil and criminal, triable on any 
 Circuit or elsewhere. 
 
 Her Majesty may from time to time, by Order 
 in Council, alter, add to, or amend any Order in 
 Council made in pursuance of this section ; and 
 in making any Order under this section may give 
 any directions which it appears to Her Majesty 
 to be desirable to give for the purpose of giving 
 full effect to such Order, 
 
 Provided that every Order in. Council made 
 under this section shall be laid before each House 
 of Parliament within such time, and shall be 
 subject to be annulled in such manner as is in 
 this Act provided. 
 
 Any Order in Council purporting to be made 
 in pursuance of this section shall have the same 
 effect in all respects as if it were enacted in this 
 Act. 
 
 The power hereby given to Her Majesty shall 
 be deemed to be in addition to and not in deroga- 
 tion of any power already vested in Her Majesty 
 in respect of the matters aforesaid; and all 
 enactments in relation to Circuits, or the places 
 at which Assizes are to be holden or other- 
 wise to relation to the subject-matter of any
 
 244 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order under this section, shall, so far as such 
 enactments are inconsistent with such Order, be 
 repealed thereby, whether such repeal is thereby 
 expressly made or not ; but all enactments re- 
 lating to the power of Her Majesty to alter the 
 Circuits of the Judges, or places at which assizes 
 are to be holden, or the distribution of revising 
 barristers among the Circuits, or otherwise en- 
 abling or facilitating the carrying the objects of 
 this section into effect, and in force at the time 
 of the passing of the Principal Act, shall continue 
 in force, and shall with the necessary variations, 
 if any, apply, so far as they are applicable, to 
 any alterations in or dealings with Circuits, or 
 places at which Assizes are to be holden, made or 
 to be made after the passing of this Act, or to 
 any other provisions of any Order made under this 
 section ; and if any such Order is made for the 
 issue of commissions for the discharge of civil 
 and criminal business in the county of Surrey, as 
 before mentioned in this section, that county shall 
 for the purpose of the application of the said 
 enactments be deemed to be a Circuit, and the 
 senior Judge for the time being so commissioned, 
 or such other Judge as maybe for the time being 
 designated for that purpose by Order in Council 
 shall, in the month of July or August in every 
 year, appoint the revising barristers for that 
 county and the cities and boroughs therein. 
 The expression " Assizes " shall in this section
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 245 
 
 be construed to include sessions under any com- 
 mission of Oyer and Terminer, or Gaol Delivery, 
 or any commission in lieu thereof issued under 
 the principal Act. 
 
 This section is substituted for section 68 of the Principal 
 Act, subsection 2, repealed by the 33rd section, and the 
 second Schedule to the present Act. 
 
 The Judicature Commission, in their First Report,* thus 
 referred to the subject of the re-arrangement of circuits : 
 
 " The necessity for holding Assizes in every county, with 
 out regard to the extent of the business to be transacted in 
 each county, leads, in our judgment, to a great waste of 
 judicial strength, and a great loss of time in going from one 
 circuit town to another, and causes much unnecessary cost 
 and inconvenience to those whose attendance is necessary 
 or customary at the Assizes. 
 
 " The distribution of a small amount of business among a 
 large number of circuit towns is the cause of serious evil to 
 the suitors. From the impossibility of ascertaining before- 
 hand with accuracy the business likely to arise, the time 
 allotted to some towns often proves insufficient, and com- 
 plaints arise that the trial of causes is hurried, or that the 
 parties are driven to dispose of their cases by reference, or 
 otherwise, unless they submit to the loss and inconvenience 
 of having their causes postponed until the next Assizes. 
 The expense and trouble of bringing together Judges, 
 sheriffs, and grand jurors, and the time occupied in the 
 preliminaries of an Assize, are the same at a small place, 
 where there is but little business, as at a large one. The 
 number of jurors, special and common, required to be in 
 attendance, is much increased by the limited extent of the 
 existing Assize Districts. If those Districts were enlarged, a 
 juror, who had once attended at the Assizes, would probably 
 be relieved from future attendance for a considerable time. 
 
 "We are, therefore, of opinion that the judicial business of 
 the country should no longer be arranged and distributed 
 according to the accidental division of counties, but that the 
 venue for trials should be enlarged, and that several 
 
 * P. 17.
 
 246 SUPREME COURT OF JUDICATl UK ACT, 1873. 
 
 counties should be consolidated into Districts of a convenient 
 size, that such Districts should for all purposes of trial at 
 the Assizes, both in civil and criminal cases, be treated as 
 one venue or county, and that all counties of towns or 
 cities should for the purposes of such Districts be included 
 in an adjacent District or county. 
 
 " In arranging the Circuits, we think that they should be 
 so remodelled as to render the amount of business likely to 
 be transacted on each Circuit as nearly equal as may be 
 practicable ; and in fixing the towns in which the Assizes 
 should be held, we recommend that those towns should be 
 chosen which are the most central, with which there is the 
 best and most rapid railway communication from all parts of 
 the District, and to which the inhabitants are most in the 
 habit of resorting for the purposes of business. We may 
 add, that, after deducting the counties now forming the 
 Home Circuit, we have reason to think that six Circuits for 
 England and Wales would be found sufficient." 
 
 The following is a copy of the recommendations of the 
 Judges as to Circuits, printed by order of the House of 
 Commons : 
 
 " 1. The Circuits of the Judges shall be as follows : 
 " I. The North- Western Circuit, which shall include the 
 counties of Westmorland, Cumberland, and Lancaster. 
 
 " II. The North-Eastern Circuit, which shall include 
 the counties of Northumberland, Durham, and York. 
 
 "III. The Midland Circuit, which shall include the 
 counties of Lincoln, Derby, Nottingham, Warwick, 
 Leicester, Northampton, Rutland, Buckingham, and 
 Bedford. 
 
 " IY. The Norfolk Circuit, which shall include the 
 counties of Norfolk, Suffolk, Huntingdon, Cambridge, 
 Hertford, Essex, Kent, and Sussex. 
 
 " V. The Oxford Circuit, which shall include the several 
 counties and cities heretofore included in the Oxford 
 Circuit. 
 
 "VI. The Western Circuit, which shall include the 
 several counties and cities heretofore included in the 
 Western Circuit. 
 
 " VII. The North and South Wales Circuit, which and 
 each of the divisions whereof (that is to say, the North
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 247 
 
 Wales and the South Wales divisions), shall include the 
 several counties heretofore included therein respectively. 
 But two Judges shall hold the Assizes for the county of 
 Glamorgan instead of one. 
 
 " 2. No Assizes shall be held in or for the county of 
 Surrey. 
 
 " 3. The Judges of Assize for any county or city may, 
 by Order, adjourn the opening of such Assizes at any time, 
 and for such period as they may deem to be necessary or 
 expedient."* 
 
 It will be seen that the Judges recommend that there 
 shall be seven Circuits not six, as proposed by the 
 Judicature Oommission.t 
 
 Much opposition has been offered to the proposal to 
 abolish the Home Circuit, and to the recommendation of the 
 Judges, that " no Assizes shall be held in or for the county 
 of Surrey." 
 
 Memorials from Birmingham, Plymouth, Leeds and 
 Kendal, and also from an influential committee of members 
 of the Northern Circuit, with regard to the rearrangement 
 of circuits, will be found in the second Appendix to the 
 Fifth (and Final) Report of the Judicature Commission. 
 
 " All enactments shall continue in force." This refers 
 to the 3 and 4 Wm. IV., c. 71, to the 26 and 27 Viet. c. 122 
 giving power to alter any of the Circuits to Her Majesty 
 in Council and to the 30 and 31 Viet. c. 70, giving power 
 to alter the number of Revising Barristers on any Circuit. 
 
 The last-mentioned measure, which was passed by the 
 writer,! was rendered necessary by the abolition of the 
 office of Assistant-Revising Barrister, by the 35 and 36 
 Viet. c. 84, s. 1. 
 
 The latter enactment might have led to a deadlock in 
 the Revision Court, as the stereotyped number of Revising 
 Barristers fixed by s. 28 of the 6 and 7 Viet. c. 18, could 
 not, without fresh legislation, be increased ; and that num- 
 ber, without assistants, was inadequate. 
 
 * Return to an Order of the House of Commors, dated 31st July, 1874. 
 f It has been suggested that Lancashire should form a separate Circuit. 
 J The present Lord Chancellor (then in Opposition) kindly took charge 
 of it in the House of Lord*.
 
 248 SUPREME COURT OF JUDICATURE ACT, 1876. 
 
 The powers conferred by the 36 and 37 Viet., c. 70, were 
 exercised by Mr. Justice Brett at the Liverpool Assizes. 
 He appointed three new Revising Barristers under that 
 Act, for the Northern Circuit. 
 
 SECTION 24. Additional power as to regulation 
 of Practice and Procedure by Rules of Court* 
 
 Where any provisions in respect of the practice 
 or procedure of any Courts the jurisdiction of 
 which is transferred by the Principal Act or this 
 Act to the High Court of Justice or the Court 
 of Appeal, are contained in any Act of Parliament, 
 Rules of Court may be made for modifying such 
 provisions to any extent that may be deemed 
 necessary for adapting the same to the High 
 Court of Justice and the Court of Appeal, without 
 prejudice nevertheless to any power of the Lord 
 Chancellor, with the concurrence of the Treasury, 
 to make any Rules with respect to the Paymaster 
 General, or otherwise. 
 
 Any provisions relating to the payment, transfer, 
 or deposit into, or in, or out of any Court of any 
 money or property, or to the dealing therewith, 
 shall, for the purposes of this section, be 
 deemed to be provisions relating to practice and 
 procedure. 
 
 The Lord Chancellor, with the concurrence of 
 the Treasury, may from time to time, by Order, 
 determine to what accounts and how intituled 
 any such money or property as last aforesaid, 
 whether paid, transferred, or deposited before or
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 249 
 
 after the commencement of this Act, is to be 
 carried, and modify all or any forms relating to 
 such accounts; and the Governor and Company 
 of the Bank of England, and all other companies, 
 bodies corporate, and persons shall make such 
 entries and alterations in their books as may be 
 directed by the Lord Chancellor, with the con- 
 currence of the Treasury, for the purpose of 
 carrying into effect any such Order. 
 
 This is one of the transition clauses of this Act. 
 
 SECTION 25. Orders and Rules to be laid before 
 Parliament, and may be annulled on Address 
 from either House. 
 
 Every Order in Council and Eule of Court 
 required by this Act to be laid before each House 
 of Parliament shall be so laid within forty days 
 next after it is made, if Parliament is then sitting, 
 or if not, within forty days after the commence- 
 ment of the then next ensuing Session ; and if an 
 Address is presented to Her Majesty by either 
 House of Parliament, within the next subsequent 
 forty days on which the said House shall have 
 sat, praying that any such Rule or Order may be 
 annulled, Her Majesty may thereupon by Order 
 in Council annul the same; and the Eule or 
 Order so annulled shall thenceforth become void 
 and of no efiect, but without prejudice to the 
 validity of any proceedings which may in the 
 meantime have been taken under the same.
 
 250 SUPREME COURT OF JUDICATURE ACT, 187-3, 
 
 This section shall come into operation im- 
 mediately on the passing of this Act. 
 
 This section is substituted for the last paragraph of 
 section 68 of the Principal Act. which is repealed by 
 section 33 and Schedule 2 of this Act. The last paragraph 
 of the 68th section of the Principal Act is re-enacted 
 verbatim by the present section, except that Orders in 
 Council are included as well as Rules of Court. 
 
 This is one of the sections expressly excepted from the 
 operation of the first clause of section 2, supra. 
 
 The Additional Ilules of Court issued by Her Majesty 
 in Council on the 12th of August, 1875, might have been 
 laid on the table of either House of Parliament the next 
 day, which happened to be the last day of the session, 
 and on which no business was transacted, and as Parliament 
 was prorogued till October, 1875, it would have been 
 impossible for any noble lord or new member to move 
 an Address within 40 days, praying that the Additional 
 Rules might be annulled. But this course does not seem 
 to have been adopted.* Meanwhile, the new Rules come 
 in force on the 1st of November, 1875, subject to be 
 " annulled." 
 
 SECTION 26. Fixing and collection of fees in 
 
 Sigh Court and Court of Appeal. 
 The Lord Chancellor, with the advice and con- 
 sent of the judges of the Supreme Court or any 
 three of them, and with the concurrence of the 
 Treasury, may, either before or after the com- 
 mencement of this Act, by Order, fix the fees and 
 per-centages (including the per-centage on 
 estates of lunatics) to be taken in the High Court 
 of Justice or in the Court of Appeal, or in any 
 Court created by any commission or inany office 
 which is connected with any of those courts, or 
 
 *The'writer has searched the votes for August 13th, 1875, but cannot 
 find any mention of the new Rules in them.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 251 
 
 in which any business connected with any of 
 those courts is conducted, or hy any officer paid 
 wholly or partly out of public moneys who is 
 attached to any of those courts or the Supreme 
 Court, or any Judge of those courts, including the 
 Masters and other Officers in Lunacy, and may 
 from time to time by Order increase, reduce, or 
 abolish all or any of such fees and per-centages, 
 and appoint new fees and per-centages to be 
 taken in the said Courts or offices or any of them, 
 or by any such officer as aforesaid. 
 
 Any Order made in pursuance of this section 
 shall be binding on all the Courts, offices, and 
 officers to which it refers, in the same manner as 
 if it had been enacted by Parliament. 
 
 All such fees and per-centages shall (save as 
 otherwise directed by the Order) be paid into the 
 receipt of Her Majesty's Exchequer and be 
 carried to the Consolidated Fund, and with respect 
 thereto the following Rules shall be observed : 
 (1.) The fees and per-centages shall, except so 
 far as the Order may otherwise direct, be 
 taken by stamps, and if not taken by 
 stamps shall be taken, applied, accounted 
 for, and paid over in such manner as may 
 be directed by the Order. 
 (2.) Such stamps shallbe impressed or adhesive, 
 as the Treasury from time to time direct. 
 (3.) The Treasury, with the concurrence of 
 the Lord Chancellor, may from time to 
 time make such Rules as may seem fit for
 
 252 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 publishing the amount of the fees and 
 regulating the use of such stamps, and 
 particularly for prescribing the application 
 thereof to documents from time to time in 
 use or required to be used for the purposes 
 of such stamps, and for insuring the 
 proper cancellation of stamps and for 
 keeping accounts of such stamps. 
 
 (4.) Any document which ought to bear a 
 stamp in pursuance of this Act, or any 
 Rule or Order made thereunder, shall not 
 be received, filed, used, or admitted in 
 evidence unless and until it is properly 
 stamped, within the time prescribed by 
 the R/ules under this section regulating the 
 use of stamps, but if any such document 
 is through mistake or inadvertence received, 
 filed, or used without being properly 
 stamped, the Lord Chancellor or the Court 
 may, if he or it shall think fit, order that 
 the same be stamped as in such Order may 
 be directed. 
 
 (5.) The Commissioners of Inland Revenue 
 shall keep such separate accounts of all 
 money received in respect of stamps under 
 this Act, as the Treasury may from time 
 to time direct and subject to the deduction 
 of any expenses incurred by those Com- 
 missioners in the execution of this section, 
 the money so received shall, under the
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 253 
 
 direction of the Treasury, be carried to and 
 form part of the Consolidated Fund. 
 (6.) Any person who forges or counterfeits any 
 such stamp, or uses any such stamp, 
 knowing the same to be forged or counter- 
 feit, or to have been previously cancelled 
 or used, shall be guilty of forgery, and be 
 liable on conviction to penal servitude for 
 a term not exceeding seven years, or to 
 imprisonment with or without hard labour 
 for a term not exceeding two years. 
 An Order under this section may abolish any 
 existing fees and per-centages which may be 
 taken in the said courts or offices, or any of them, 
 or by the said officers or any of them, but subject 
 to the provisions of any Order made in pursuance 
 of this section, the existing fees and per-centages 
 shall continue to be taken, applied, and accounted 
 for in the existing manner. 
 
 The provisions of subsections (2), (3), (4), (5) of this 
 section are copied from the Common Law Courts (Fees) 
 Act, 1865,* ss. 2, 3, 4, and 6, respectively, with this differ- 
 ence, that the Rules mentioned in subsection (3) are to be 
 made with the concurrence of the Lord Chancellor, instead 
 of with that of the three Chiefs of the Common Law, and 
 that in subsection (4) the Lord Chancellor is substituted for 
 a Judge of one of the Superior Courts of Common Law. See 
 also 32 and 33 Viet., c. 91, ss. 19, 20, 21, 22, and 23. 
 
 " The per-centage on estates of lunatics." t All fees on 
 proceedings in lunacy throughout the several offices of the 
 Courts are now, under the Lunacy Regulation Act, 1853, 
 except those mentioned in s. 29 of that Act, abolished, and 
 
 * 28 and 29 Viet., c. 45. 
 
 t See Elmer on Lunacy Practice, c. 19.
 
 254 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 in lieu thereof, a per-centage on the clear annual income of 
 each lunatic's estate is to be paid (s. 26) at the rate of 4 
 per cent, for each clear annual income amounting to 100, 
 and under 1,000 ; at the rate of 3 per cent, for each 
 clear annual income amounting to 1,000 and under 
 5,000 ; and at the rate of 2 per cent, for each clear 
 annual income amounting to 5,000 and upwards, subject 
 to the restrictions therein mentioned as to the total amount 
 payable in each class. All incomes under 100 are 
 exempt from paying any per-centage. By s. 30, the 
 Lord Chancellor may, with the advice and assistance of 
 the Lords Justices, from time to time, reduce and raise (but 
 not to higher rates than those above-mentioned) the rate 
 of per-centage.* The per-ccntage and fees are collected by 
 means of stamps (s. 31). 
 
 SECTION 27. Provisions as to Lancaster Fee 
 Fund, and salaries, fyc., of officers of courts at 
 Lancaster and Durham. 32 and 33 Viet. c. 37. 
 
 Whereas by the Common Pleas at Lancaster 
 Amendment Act, 1869, the fees taken by the Pro- 
 thonotaries and District Prothonotaries in pursu- 
 ance of that Act, are directed to be carried to the 
 credit of " the Prothonotaries Fee Fund Account 
 of the County Palatine of Lancaster/' and certain 
 salaries and expenses connected with the offices of 
 the said Prothonotaries and District Prothono- 
 taries, are directed to he paid out cf that account : 
 
 And whereas, on the twenty-fourth day of June 
 one thousand eight hundred and seventy-four, 
 there was standing to the credit of that account 
 a sum of ten thousand seven hundred and fifty- 
 five pounds, consolidated three pounds per cen- 
 
 * Sec also 15 and 16 Viet., c. 87, s. 14.
 
 SUKPEME COURT OF JUDICATURE ACT, 1875- 2o5 
 
 turn bank annuities and one thousand eigkt 
 hundred and ten pounds cash, or thereabouts : 
 
 And whereas the fees received in the Court of 
 Pleas of Durham are applied in payment of dis- 
 bursements connected with the office of the 
 Prothonotary of that Court, and any surplus of 
 such fees is paid into the Receipt of Her Majesty's 
 Exchequer, and any deficiency of the amount of 
 the said fees to pay such disbursements is charged 
 on the Consolidated Eund of the United King- 
 dom : 
 
 And whereas after the commencement of the 
 Principal Act, the jurisdiction of the Court of 
 Common Pleas at Lancaster and the Court of 
 Pleas at Durham is by that Act transferred to 
 and vested in the High Court of Justice, and it is 
 expedient to make further provision respecting 
 the expenses of those Courts and the said stock 
 and cash standing to the credit of the Prothono- 
 taries' Pee Fund Account of the County Palatine 
 of Lancaster : 
 
 Be it therefore enacted that 
 
 After the commencement of the Principal Act 
 there shall be paid out of moneys provided by 
 Parliament such sums by way of salary or re- 
 muneration to the Prothonotaries and District 
 Prothonotaries of the Court of Common Pleas at 
 Lancaster and the Court of Common Pleas at 
 Durham and their clerks, and such sums for rent, 
 taxes, and other outgoings at their offices, as the
 
 256 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Lord Chancellor, with the concurrence of the 
 Treasury, may from time to time direct. 
 
 As soon as each Prothonotary and District Pro- 
 thonotary of the Court of Common Pleas at 
 Lancaster has accounted for and paid all fees and 
 moneys which he shall have received by virtue 
 of his said office, the Chancellor of the Duchy of 
 Lancaster shall cause any security given by such 
 officer in pursuance of section seventeen of the 
 Common Pleas at Lancaster Amendment Act, 
 1869, to be cancelled, and delivered up> or other- 
 wise discharged. 
 
 As soon as may be after the commencement of 
 the Principal Act the Treasury and the Chancellor 
 of the Duchy and County Palatine of Lancaster 
 shall ascertain the amount of stock and cash 
 standing: to the credit of the Prothonotaries' Pee 
 
 O 
 
 Fund Account of the County Palatine of Lancaster, 
 after paying thereout to the Receiver General of 
 the revenues of the Duchy of Lancaster the 
 amount of the fees remaining in the Prothonotary's 
 hands on the twenty-fourth day of October, one 
 thousand eight hundred and sixty-nine, and 
 paid to that account in pursuance of section 
 seventeen of the last-mentioned Act, and all other 
 sums justly due to Her Majesty in right of Her 
 said Duchy and County Palatine ; and the Treasury 
 shall by warrant direct the Governor and Com- 
 pany of the Bank of England to transfer to the 
 Commissioners for the Reduction of the National
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 257 
 
 De"ht the amount of stock and cash so ascertained 
 and either to cancel the stock in their books or 
 otherwise dispose of the same as may be directed 
 by the warrant ; and the Governor and Company 
 of the Bank of England shall transfer the stock 
 and cash, and. cancel or otherwise dispose of the 
 stock according to the warrant, without any order 
 from the Lord Chancellor or the Chancellor of 
 the said Duchy and County Palatine or any other 
 person. 
 
 The Commissioners for the Reduction of the 
 National Debt shall apply all cash transferred to 
 them in pursuance of this section in the purchase 
 of Bank Annuities which shall be cancelled or 
 otherwise disposed of in like manner as the said 
 stock. 
 
 See sections 17 and 18 of the statute 32 & 33 Yict, c. 37. 
 Section 16 of the Principal Act transfers to and vests 
 in the High Court of Justice the jurisdiction of the 
 Common Pleas of Lancaster and the Court of Pleas of 
 Durham. By the second Order in Council of the 12th 
 August, 1875, the District Prothonotaries at Liverpool, 
 Manchester, and Preston are appointed District Registrars 
 for the respective places for which they are District Pro- 
 thonotaries, and it is provided that " the District for each 
 place shall be the District now assigned to each such District 
 Prothonotary, under ' the Common Pleas at Lancaster 
 Amendment Act, 1869.' " The District Prothonotaries of 
 Lancaster will, therefore, occupy a position very similar to 
 that which they have hitherto occupied, their previous 
 duties, powers, authorities, and remuneration being distinctly 
 preserved to them by the 78th section of the Principal Act. 
 
 The same observations apply to the District Prothonotary 
 of the Court of Pleas at Durham. 
 
 17
 
 258 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 SECTION 28. Annual Account of Fees and 
 Expenditure. 
 
 The Treasury shall cause to be prepared an- 
 nually an account for the year ending the thirty- 
 first day of March, showing the receipts and 
 expenditure during the preceding year in respect 
 of the High Court of Justice and the Court of 
 Appeal, and of any Court, office, or officer, the 
 fees taken in which or by whom can be fixed in 
 pursuance of this Act. 
 
 Such account shall be made out in such form 
 and contain such particulars as the Treasury, 
 with the concurrence of the Lord Chancellor, 
 may from time to time direct. 
 
 Every officer by whom or in whose office fees 
 are taken which can be fixed in pursuance of this 
 Act, shall make such returns and give such 
 information as the Treasury may from time to 
 time require for the purpose of enabling them to 
 make out the said account. 
 
 The said account shall be laid before both 
 Houses of Parliament within one month after the 
 thirty -first day of March in each year, if Parlia- 
 ment is then sitting, or, if not, then within one 
 month after the next meeting of Parliament. 
 
 The provisions of this section are copied from the follow- 
 ing enactments : 29 & 30 Viet,, c. 101, s. 7; 30 & 31 
 Viet., c. 122, ss. 1-8; and 32 & 33 Viet., c. 91, s. 24.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 259 
 
 SECTION 29. Amendment of law as to payments 
 to senior Puisne Judge of Queen's Bench, 
 and Queen's Coroner. 
 
 Whereas fines and other moneys paid into the 
 Court of Queen's Bench for Her Majesty's use 
 are received by the Queen's Coroner and Attorney, 
 and out of such moneys there is paid in pursuance 
 of a writ of Privy Seal an annual sum of forty 
 pounds, at the rate of ten pounds for every term, 
 to the second Judge of the Court of Queen's 
 Bench, and by section seven of the Act of the 
 sixth year of King George the Fourth, chapter 
 eighty-four, it is enacted that the said termly 
 allowance of ten pounds shall continue to be 
 paid to the said second Judge in addition to his 
 salary : 
 
 And whereas out of the said moneys there 
 is also payable in pursuance of the said writ 
 of Privy Seal an annual sum of ten pounds 
 to the Queen's Coroner and Attorney : 
 
 And whereas it is expedient to determine such 
 payments : 
 
 Be it therefore enacted as follows : 
 
 After the passing of this Act the said sums of 
 forty pounds and ten pounds a year shall cease to 
 be payable by the Queen's Coroner and Attorney 
 out of the above-mentioned moneys. 
 
 So long as the person who, on the first day of 
 March, one thousand eight hundred and seventy- 
 five, was the second Judge of the Court of
 
 260 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Queen's Bench continues to be such second Judge, 
 there shall be payable to him out of the Con- 
 solidated Fund of the United Kingdom the annual 
 sum of forty pounds in addition to his salary, and 
 that annual sum shall be payable to him by instal- 
 ments of ten pounds at the like times at which 
 the said termly allowance of ten pounds has 
 heretofore been payable to him, or at such other 
 times as the Treasury, with the consent of the 
 .Judge, may direct. 
 
 So long as the person who, on the first day of 
 March, one thousand eight hundred and seventy- 
 five, was the Queen's Coroner and Attorney con- 
 tinues to hold that office, there shall be payable 
 to him out of moneys provided by Parliament 
 the annual sum of ten pounds, and such sum shall 
 be payable to him at the like time at which the 
 said annual sum of ten pounds has heretofore 
 been payable to him, or at such other time as the 
 Treasury, with the consent of such Queen's 
 Coroner or Attorney, may direct. 
 
 See 6th George IV., chapter 84, section 7, which is 
 repealed by section 33, and the second Schedule to this Act. 
 
 SECTION 80. Amendment of 35 and 36 Viet., c. 
 44, as to the transfer of Government securi- 
 ties to and from the Paymaster- General on 
 behalf of the Court of Chancery and the 
 National D<ebt Commissioners. 
 
 Whereas .by section sixteen of " The Court of
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 261 
 
 Chancery Funds, Act, 1872," it is enacted that 
 an Order of the Court of Chancery may direct 
 securities standing to the account of the Pay- 
 master-General on behalf of the Court of Chancery 
 to be converted into cash, and that where such 
 Order refers to Government securities such secu- 
 rities shall be transferred to the Commissioners 
 for the Reduction of the National Debt in manner 
 therein mentioned : 
 
 And whereas the said section contains no pro- 
 vision for the converse cases of the conversion of 
 cash into securities and the transfer of securities 
 from the said Commissioners to the account of 
 the Paymaster- General on behalf of the Court of 
 Chancery : 
 
 And whereas such conversion and transfer, and 
 the other matters provided by the said section 
 can be more conveniently provided for by Rules 
 made in pursuance of section eighteen of the 
 said Act ; and it is expedient to remove doubts 
 with respect to the power to provide by such Rules 
 for the investment in securities of money in 
 Court, and the conversion into money of securi- 
 ties in Court : 
 
 Be it therefore enacted as follows : 
 
 Section sixteen of " The Court of Chancery 
 iunds Act, 1872," is hereby repealed. 
 
 Rules may from time to time be made in pur- 
 suance of section eighteen of " The Court of 
 Chancery Funds Act, 1872," with respect to the
 
 262 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 investment in securities of money in Court, and 
 the conversion into money of securities in Court, 
 and with respect to the transfer to the Commis- 
 sioners for the Reduction of the National Debt 
 of Government securities ordered by the Court to 
 be sold or converted into cash, and to the transfer 
 by those Commissioners to the Pay master- General 
 for the time being on behalf of the Court of 
 Chancery of Government securities ordered by the 
 Court of Chancery to be purchased. 
 
 This section shall come into operation on the 
 passing of this Act, and shall be construed 
 together with " The Court of Chancery Funds 
 Act, 1872," and shall be subject to any altera- 
 tion in that Act made by or in pursuance of the 
 Principal Act or this Act. 
 
 This section comes within the exception of section 2, supra. 
 This section (which is not very germane to the subject- 
 matter of the Act) was inserted in Committee, in the House 
 of Commons. 
 
 SECTION 31, Abolition of secretary to the Visitors 
 of Lunatics, 16 and 17 Viet. c. 70. 
 
 Whereas under the Lunacy Regulation Act, 
 1853, it is provided that there shall be a secretary 
 to the Visitors of Lunatics therein-mentioned, and 
 it is expedient to abolish that office : Be it there- 
 fore enacted as follows : 
 
 After the passing of this Act there shall cease 
 to be a secretary to the Visitors of Lunatics. 
 
 The Treasury shall award, out of moneys pro-
 
 SUPREME COURT OF JUDICATURE ACT, 187-5. 263 
 
 vicled by Parliament, to the person who holds at 
 the passing of this Act the office of secretary to 
 the Visitors of Lunatics such compensation by way 
 of annuity or otherwise, as having regard to the 
 conditions on which he was appointed to his 
 office, the nature, salary, and emoluments of his 
 office, and the duration of his services, they may 
 think just and reasonable, so that the same be 
 granted in accordance with the provisions and 
 subject to the conditions contained in the Super- 
 annuation Act, 1859. 
 
 This section took effect on the 13th August, 1 875. By s. 
 22 of the statute 16 and 17 Viet. c. 70, " there shall be 
 a secretary to the Visitors, who shall hold office during 
 pleasure, and the Lord Chancellor shall from time to time, 
 as a vacancy shall occur in the office of secretary, appoint, 
 by writing under his hand, a fit person to fill the vacancy." 
 
 
 SECTION 32. Amendment of 32 and 33 Viet., c. 
 
 83, s. 19, and 32 and 33 Viet., c. 71, s, 116, as 
 
 to payment of unclaimed dividends to persons 
 
 entitled. 
 
 Whereas by section nineteen of " The Bank- 
 ruptcy R-epeal and Insolvent Court Act, 1869," it 
 is enacted as follows : " All dividends declared in 
 '' any court acting under the Acts relating to bank- 
 " ruptcy or the relief of insolvent debtors which 
 " remain unclaimed for five years after the com- 
 " mencement of this Act, if declared before that 
 " commencement, and for five years after the 
 " declaration of the dividends if declared after the 
 " commencement of this Act, and all undivided
 
 2C4 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 " surpluses of estates administered under the juris- 
 " diction of such court which remain undivided for 
 " five years after the declaration of a final dividend 
 " in the case of bankruptcy, or for five years after 
 " the close of an insolvency under this Act, shall be 
 " deemed vested in the Crown, and shall be dis- 
 " posed of as tne Commissioners of Her Majesty's 
 " Treasury direct ; provided that any time alter 
 " such vesting the Lord Chancellor may, if he 
 " think fit, by reason of the disability or absence 
 " beyond seas of the person entitled to the sum so 
 " vested, or for any other reason appearing to him 
 " sufficient, direct that the sum so vested shall be 
 " repaid out of moneys provided by Parliament, and 
 " shall be distributed as it would have been if there 
 " had been no such vesting :" 
 
 And whereas a similar enactment with respect 
 to unclaimed dividends in bankruptcy was made 
 by section one hundred and sixteen of " The 
 Bankruptcy Act, 1869 :" 
 
 And whereas it is expedient to give to persons 
 entitled to any such unclaimed dividends or other 
 sums greater facilities for obtaining the same : 
 Be it therefore enacted as follows : 
 
 Any court having jurisdiction in the matter of 
 any bankrupt' y or insolvency, upon being satisfied 
 that any person claiming is entitled to any 
 dividend or other payment out of the moneys 
 vested in the Crown in pursuance of section nine- 
 teen of " The Bankruptcy Repeal and Insolvent
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 265 
 
 Court Act, 1869," or of section one hundred and 
 sixteen of " The Bankruptcy Act, 1869," may 
 order payment of the same in like manner as it 
 might have done if the same had cot by reason 
 of the expiration of five years become vested in 
 the Crown in pursuance of the said sections. 
 
 This section shall take effect as from the 
 passing of this Act. 
 
 This section, which is not very germane to the subject- 
 matter of the Act (especially as by s. 9 supra, the London 
 Court of Bankruptcy is to remain distinct from the Supreme 
 Court) was inserted in Committee in the House of Com- 
 mons.* By the second Schedule the provisoes to s. 116 of 
 the Bankruptcy Act, 1869, and tos. 19 of the Bankruptcy 
 Repeal and Insolvent Act, respectively, are repealed. 
 
 SECTION 33. Repeal. 
 
 From and after the commencement of this Act 
 there shall be repealed 
 
 (1.) The Acts specified in the second Schedule 
 to this Act, to the extent in the third 
 column of that Schedule mentioned, with- 
 out prejudice to anything done or suffered 
 before the said commencement under the 
 enactments hereby repealed ; also 
 
 (2.) Any other enactment inconsistent with 
 this Act or the Principal Act. 
 
 In addition to the enactments specified in the Schedule 
 there are repealed by this Act 
 
 By s. 3, supra, s. 5 of the Principal Act from " provided " 
 to "21." 
 
 By s. 4, supra, s. 54 of the Principal Act. 
 
 * The "new clauses" 30 & 32 make the Act somewhat in the nature 
 of, what is termed, an " omnibus " one.
 
 266 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 By s. 10, supra, subsection (1) of section 25 of the 
 
 Principal Act. 
 By s. 33, supra, s. 16 of "The Chancery Funds Act, 
 
 1872," (35 and 36 Viet., c 44,) and 
 By s. 31 (impliedly), s. 22 of the Lunacy Regulation 
 
 Act, 1862 (16 and 17 Viet., c. 70). 
 
 As this section was sent down from, the Lords, it contained 
 another subsection (3) : 
 
 " (3.) From and after the date at which any Order in 
 Council or Rule of Court, or Order of the Lord Chancellor, 
 made in pursuance of or for the purposes of this Act is 
 made, any provision of any Act of Parliament inconsistent 
 with such Order in Council, Rule of Court, or Order of the 
 Lord Chancellor." 
 
 SECTION 34. As to Vacancies in any Office 
 within s. 77 of Principal Act. 
 
 Whereas, by the seventy-seventh section of the 
 Principal Act, it is provided that, upon the occur- 
 rence of a vacancy in the office of any officer 
 coming within the provisions of the said section, 
 the Lord Chancellor, with the concurrence of the 
 Treasury, may, in the event of such office heing 
 considered unnecessary, abolish the same, or may 
 reduce the salary, or alter the designation or duties 
 thereof, notwithstanding that the patronage 
 thereof may be vested in an existing Judge ; but 
 that nothing in the said Act contained shall inter- 
 fere with the office ol marshal attending any com- 
 missioner of Assize : And whereas it is expedient 
 to add to the said section : Be it enacted, that, 
 upon the occurrence of any vacancy coming 
 within the provisions of the said section, an ap- 
 pointment shall not be made thereto for the period
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 267 
 
 of one month without the assent of the Lord 
 Chancellor, given with the concurrence of the 
 Treasury ; and, further, the Lord Chancellor 
 may, with the concurrence of the Treasury, sus- 
 pend the making any appointment to such office 
 for any period not later than the first day of 
 January, One thousand eight hundred and seventy- 
 seven, and may, if it be necessary, make provi- 
 sion in such manner as he thinks fit for the tem- 
 porary discharge, in the meantime, of the duties 
 of such office. 
 
 See s. 77 of the Principal Act and the note thereto. 
 
 SECTION 35. Amendment of Principal Act, 
 8. 79, as to Chamber Clerks. 
 
 Be it enacted, that any person who, at the time 
 of the commencement of this Act, shall hold the 
 office of Chamber Clerk shall be eligible at any 
 time thereafter for appointment to the like office, 
 anything in the Principal Act to the contrary 
 notwithstanding ; and that, if any such person 
 shall be so appointed after the commencement of 
 this Act, he shall, if the salary assigned to such 
 office by or under the Principal Act be less than 
 the salary received by him at the time of the 
 commencement of this Act, be entitled to receive 
 a salary not less than that so formerly received 
 by him, so long as he shall retain such office, but 
 shall not be entitled to receive or claim any pen- 
 sion in respect of his service, unless the Treasury
 
 268 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 in its absolute discretion, shall think fit to sanc- 
 tion the same. 
 
 The Chamber Clerks of the Judges occupy a nominally 
 insecure, but really secure position. They hold their appoint- 
 ments under the 1-5 and 16 Yict., c. 73, s. 8, by which it is 
 enacted that " it shall be lawful for the Lord Chief Justice 
 and the Lord Chief Baron each to appoint three clerks ; 
 and for the other Justices and Barons each to appoint two 
 clerks, and such officers shall hold their offices during the 
 pleasure of the Judges by whom they are appointed, and if 
 continued by their successors, during the pleasure of such 
 successors." The two clerks are a " Body " Clerk and a 
 "Chamber" Clerk. The succeeding Judges almost in- 
 variably reappoint the Chamber Clerks of their predecessors, 
 the knowledge and skill, which a Chamber Clerk of standing 
 can bring to bear on many knotty points of practice, being 
 invaluable to the incoming Judge. 
 
 The 79th section of the Principal Act severed the connec- 
 tion established by the legislature between the Chamber 
 Clerks and the Judges, empowering the Judges to appoint 
 two clerks, a senior and a junior, at salaries much lower 
 than those enjoyed by the Body Clerk and Chamber Clerk. 
 
 The existing Chamber Clerks were not referred to at all 
 in the 79th section, but it was declared that " the duties 
 of Chamber Clerks, so far as relates to business transacted 
 in Chambers by Judges appointed after the passing of this 
 Act, shall be performed by officers of the Court in the per- 
 manent Civil Service of the Crown." 
 
 This proviso evidently shut out the Chamber Clerks from 
 all hope of being reappomted on the death or retirement 
 of Judges who respectively appointed them. In 1873 the 
 writer had taken some part in bringing the claims of the 
 Chamber Clerks, under the notice of the then Attorney- 
 General, Sir John (now Lord) Coleridge, and when the 
 present measure was brought forward, the writer was 
 requested to take up their case. Accordingly he placed 
 the following new clause on the paper : 
 
 "Whereas, by the Act of the fifteenth and sixteenth 
 years of Her present Majesty, chapter seventy-three, it is
 
 269 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 enacted, " That the Chamber Clerks to the Judges shall 
 " hold their officesduring the pleasure of the Judges by whom 
 " they are appointed ; or, if continued by the successors 
 " of such Judges, during the pleasure of such successors : 
 
 " And whereas the Chamber Clerks to the Judges ap- 
 tl pointed in pursuance of the said enactment have usually 
 " been continued by the successors of the Judges by whom 
 " they have been appointed : 
 
 And whereas, by the seventy-ninth section of the 
 Principal Act, it is enacted : ' That the duties of Chamber 
 * Clerks, so far as relates to business transacted in Chambers 
 ' by Judges appointed after the commencement of that Act, 
 ' shall be performed by Officers of the Court in the perma- 
 1 nent Civil Service of the Crown,' and no provision is made 
 in the Principal Act for continuing the existing Chamber 
 Clerks to the Judges in their respective offices after the 
 death or retirement of the Judges by whom they were 
 respectively appointed : 
 
 Be it enacted, That, upon the death or retirement of 
 any of the existing Judges, the Chamber Clerk appointed 
 by him shall be eligible to be continued in the office of 
 Chamber Clerk, anything in the Principal Act to the 
 contrary notwithstanding." 
 
 The Attorney-General and the Financial Secretary of the 
 Treasury (Mr. W. H. Smith, M.P.) carefully considered 
 the question, and the Attorney-General adopted the enact- 
 ing part of the above new clause with a slight variation 
 in phraseology, adding words which preserve the salaries of 
 the existing Chamber Clerks from being reduced : 
 
 " Be it enacted, That any person who, at the time of 
 the commencement of this Act, shall hold the office of 
 Chamber Clerk shall be eligible at any time thereafter for 
 appointment to the like office, anything in the Principal 
 Act to the contrary notwithstanding ; and that, if any such 
 person shall be so appointed after the commencement of 
 this Act, he shall, if the salary assigned to such office by or 
 under the Principal Act be less than the salary received by 
 him at the time of the commencement of this Act, bo 
 entitled to receive a salary not less than that formerly 
 received by him so long as he shall retain such office, but
 
 270 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 shall not be entitled to receive or claim any pension in 
 respect of his service." 
 
 The words " Be it enacted that " formed, in the writer's 
 new clause, a connecting link between the recital and the 
 enacting part ; but they are surplusage in their present 
 position. 
 
 It seemed somewhat hard that the Chamber Clerks, 
 some of whom had served for thirty and one for fifty years, 
 should be entirely debarred from ever applying for a 
 pension. Accordingly, the writer gave notice of the follow- 
 ing amendment to the Attorney-General's new clause : 
 
 " As an amendment to Mr. Attorney-General's proposed 
 new clause as to Chamber Clerks, at end add, ' unless the 
 Treasury, in its absolute discretion, shall think fit to 
 sanction the same.' ' 
 
 The writer called the attention of Mr. "W. H. Smith and 
 of the Attorney-General to this amendment, and left town 
 for Circuit. On his return he was no little gratified to find 
 that his amendment had been adopted by the Government. 
 It now, as will be perceived, forms part of the present section.
 
 FIRST SCHEDULE. 
 
 RULES OF COURT.* 
 
 [NOTE. Where no other provision is made by the 
 Act or these Rules the present Procedure and 
 Practice remain in force.] 
 
 This is the Schedule referred to in section 16 of this Act : 
 
 " The Rules of Court in the first Schedule to this Act, shall come into 
 operation at the commencement of this Act, and as to all matters to 
 which they extend shall 1 henceforth regulate the proceedings in the High 
 Court of Justice and Court of Appeal. But such Rules of Court and also 
 all such other Rules of Court (if any) as may he made after the passing 
 and before the commencement of this Act under the authority of the next 
 sectionf may be annulled or altered by the authority by which new 
 Rules of Court may be made after the commencement of this Act." 
 
 The authority by which new rules may be made after the commence- 
 ment of the Act is (section 17) " the Supreme Court, with the concurrence 
 of a majority of the Judges thereof present at any meeting for that 
 purpose held (of which majority the Lord Chancellor shall be one.)" 
 This is in accordance with the recommendation of the Judicature Commis- 
 sion J that "power should be vested in the Supreme Court to regulate, 
 from time to time, the Procedure and Practice in all its Divisions." 
 
 The Rules in this Schedule are derived from two sources : 
 
 1 . The Schedule (now repealed) to the Principal Act, as to which see 
 section 69 of that Act and the note thereto (p. 134.) 
 
 2. The Rules framed in 1874 under the 68th section of the Principal 
 Act, but which were not issued by authority. 
 
 Tt will be found that the Rules in this Schedule emanate from one or 
 other of these sources, with which the practitioners and students of 
 the law must by this time be familiar ; and, in order to facilitate a 
 reference to them, the writer has carefully noted up under every Rule 
 of this Schedule the precise Rule of the Schedule to the Principal Act, 
 or Order of the Rules of Court drawn up in 1874 under the Principal 
 Act, from which it has been copied, with a view to its incorporation in 
 this Schedule. The various provisions have, of course, been re-cast by 
 the Legislature, in order to adapt them to the present Act. 
 
 The note at the head of this Schedule relative to existing Procedure 
 
 * The heading in the Bill, " Rules of Court, under the 36 and 37 Viet., 
 c. 66," was evidently erroneous, as the Rules are under both Acts. The 
 heading was altered by the Attorney-General, at the instance of the 
 writer. 
 
 t The new Rules made under section 1 7 before the commencement of 
 the Act are inserted in this work after the Schedules to the present Act. 
 
 J First Report, p. 15.
 
 272 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 (which is copied from the Rules of Court drawn up in 1874 under the 
 Principal Act) carried out the principle embodied in the 21st section of this 
 " Save as by the Principal Act or this Act, or by any Rules of Court, Act* : 
 may be otherwise provided, all forms and methods of Procedure which 
 at the commencement of this Act were in force in any of the Courts 
 whose jurisdiction is by the Principal Act or this Act transferred to 
 the said High Court and to the said Court of Appeal respectively, under 
 or by virtue of any law, custom, general order, or rules whatsoever, and 
 which are not inconsistent with the Principal Act or this Act, or with 
 any Rules of Court, may continue to be used and practised in the said 
 High Court of Justice and the said Court of Appeal respectively, in such 
 and the like cases, and for such and the like purposes, as those to which 
 they would have been applicable in the respective Courts of which 
 the jurisdiction is so transferred, if the Principal Act and this Act had 
 not passed." One peculiarity of these Rules is that they re-enact many 
 sections of the Common Law Procedure Acts almost verbatim ; and omit all 
 allusion to the source from -which they are derived. They also enact many 
 of the Rules framed by the Judges without any allusion to those Rules. The 
 question arises, what becomes of the sections of the Common Law Pro- 
 cedure Acts and of the Regulce Generates, which are not expressly enacted 
 or re-enacted in this Schedule? Are they repealed or rescinded by im- 
 plication ? It is apprehended that so far as the present Rules are incon- 
 sistent with them, the former Rules and enactments touching Procedure 
 and Pleading must be taken to be, pro ianto, repealed ; but otherwise by 
 virtue of section 21, to be still of full force and effect. 
 
 ORDER I. 
 FORM AND COMMENCEMENT OF ACTION. 
 
 Rule 1. 
 
 All actions wliich have hitherto been commenced by 
 writ in the Superior Courts of Common Law at "West- 
 minster, or in the Court of Common Pleas at Lancaster, 
 or in the Court of Pleas at Durham, and all suits which 
 have hitherto been commenced by bill or information in 
 the High Court of Chancery, or by a cause in rem or in 
 personam in the High Court of Admiralty, or by citation 
 or otherwise in the Court of Probate, shall be instituted in 
 the High Court of Justice by a proceeding to be called an 
 "action." 
 
 This rule is a re-enactment of the first part of Rule I. of the Principal 
 Act. 
 
 * Re-enacting the repealed 73rd section of the Principal Act.
 
 RULES OF COURT. 273 
 
 The Common Law denomination "action" has heen adopted, in pre- 
 ference to the Equity term " suit ;" but many of the proceedings appear 
 to bear more resemblance to a "suit" than an "action. ' The jurisdiction 
 of the Court of Common Pleas at Lancaster and of the Court of Pleas at 
 Durham is to be transferred to the High Court by section 16 of the 
 Principal Act. 
 
 Rule 2. 
 
 With respect to interpleader, the procedure and prac- 
 tice now used by Courts of Common Law under the Inter- 
 pleader Acts, 1 & 2 Will. 4, c. 58, and 23 & 24 Viet., c. 126, 
 shall apply to all actions and all the Divisions of the High 
 Court of Justice, and the application by a defendant shall 
 be made at anytime after being served with a writ of sum- 
 mons, and before delivering a defence. 
 
 This is Eule 5 of Order 1 of the Rules of Court drawn up in 1874, trader 
 the Principal Act. 
 
 The general principles recognised in the application of interpleader are 
 (1) that the person applying that others may be required to interplead be 
 already defendant in an action at the suit of one of them ; (2) that the 
 claims of both claimants be in respect of the very same matter ; (3) that 
 the party applying claim no interest in the subject-matter; (4), that the 
 applicant be not colluding with either party ; (5), that the applicant be in 
 possession of the matter in dispute, and thus able to obey such order as 
 may be made with regard to it ; and (6), that the same question be raisable 
 upon the interpleader issue, as was in dispute between the original parties. 
 A sheriff may successfully apply for an interpleader order, as between 
 execution creditors and persons claiming goods seized by the sheriff in 
 execution, although no action has been commenced against him ; pro- 
 vided that a bond fide legal claim has been actually made to goods lawfully 
 seized.* 
 
 The Interpleader Acts will, under this Rule, apply for the first time to 
 the Chancery Division. 
 
 The leading Act on Interpleader is the 1 & 2 Wm. IV., c. 58, referred to 
 in the Rules, and which is as follows : 
 
 " Whereas it often happens that a person sued at law for the recovery 
 of money or goods wherein he has no interest, and which are also claimed 
 of him by some third party, has no means of relieving himself from such 
 adverse claims but by a suit in Equity against the plaintiff and such third 
 party, usually called a Bill of Interpleader, which is attended with ex- 
 pense and delay ; for remedy thereof, Be it enacted by the King's Most 
 Excellent Majesty, by and with the consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament assembled, and by 
 the authority of tho game, That upon application made by or on the behalf of 
 any defendant sued in any of His Majesty's Courts of Law at Westmin- 
 ster, or in the Court of Common Pleas of the County Palatine of Lancaster, 
 
 * See Day's Common Law Procedure Acts. pp. 357 -P, 4th edition. 
 (1872.) 
 
 18
 
 274 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 or the Court of Pleas of the County Palatine of Durham, in any action of 
 assumpsit, debt, detinue, or trover, such application being made after 
 declaration, and before plea, by affidavit or otherwise, showing that such 
 defendant does not claim any interest in the subject-matter of the suit, but 
 that the right thereto is claimed or supposed to belong to some third party 
 who has sued or is expected to sue for the same, and that such defendant 
 does not in any manner collude with such third party, but is ready to 
 bring into Court or to pay or dispose of the subject-matter of the action 
 in such manner as the Court (or any Judge thereof) may order or direct, 
 it shall be lawful for the Court, or any Judge thereof, to make Rules and 
 Orders calling upon such third party to appear and to state the nature 
 and particulars of his claim, and maintain or relinquish his claim, and 
 upon such Rule or Order to hear the allegations as well as of such third 
 party as of the plaintiff, and in the meantime to stay the proceedings in 
 such action, and finally to order such third party to make himself defen- 
 dant in the same or some other action, or to proceed to trial on 
 one or more feigned issue or issues, and also to direct which of the 
 parties shall be plaintiff or defendant on such trial, or with the consent 
 of the plaintiff and such third party, their counsel or attorneys, to dispose 
 of the merits of their claims and determine the same in a summary 
 manner, and to make such other Rules and Orders therein as to 
 costs and all other matters as may appear to be just and reasonable. 
 II. The judgment in any such action or issue as may be directed by 
 the Court or Judge, and the decision of the Court or Judge in a summary 
 manner, shall be final and conclusive against the parties, and all persons 
 claiming by, from, or under them. III. If such third mrty shall not 
 appear under such Rule or Order to maintain or relinquish his clrim, being 
 duly served therewith, or shall neglect or refuse to comply with any Rule 
 or Order to be made after appearance, it shall be lawful for the Court or 
 Judge to declare such third party, and all persons claiming by, from, or 
 under~ him, to be for ever barred from prosecuting his claim against the 
 original defendant, his executors or administrators ; saving, nevertheless, 
 the right or claim of such third party against the plaintiff; and thereupon 
 to make such Order between such defendant and the plaintiff, as to costs 
 and other matters, as may appear just and reasonable. IV. No Order 
 shall be made in pursuance of Act by a single Judge of the Court of Pleas 
 of the said County Palatine of Durham who shall not also be a Judge of 
 one of the said Courts at Westminster, and every Order to be made in 
 pursuance of this Act by a single Judge not sitting in open Court shall 
 be liable to be rescinded or altered by the Court in like manner as other 
 Orders made by a single Judge. V. If upon application to a Judge, in 
 the first instance, or in any later stage of the proceedings, he shall think 
 the matter more fit for the decision of the Court, it shall be lawful for him 
 to refer the matter to the Court ; and thereupon the Court shall and may 
 hear and dispose of the same in the same manner as if the proceeding 
 had originally commenced by Rule of Court, instead of the Order of a 
 Judge. VI. And whereas difficulties sometimes arise in the execution of 
 process against goods and chattels, issued by or under the authority of the 
 said Courts, by reason of claims made to such goods and chattels by 
 assignees of bankrupts and other persons not being the parties against 
 whom such process has issued, whereby Sheriffs and other officers 
 am exposed to the hazard and expense of actions ; and it is reason- 
 ,able to afford relief and protection in such cases to such Sheriffs 
 and other officers ; Be it therefore further enacted, That when any such
 
 RULES OF COURT. 275 
 
 claim shall be made to any goods or chattels taken or intended to he 
 taken in execution under any such process, or to the proceeds or 
 value thereof, it shall and may he lawful to and for the Court from which 
 such process issued, upon application of such Sheriff or other officer made 
 before or after the return of such process, and as well before as after any 
 action brought against such Sheriff or other officer, to call before them, 
 by Rule of Court, as well the party issuing such process as the party 
 making such claim, and thereupon to exercise, for the adjustment of such 
 claims and the relief and protection of the sheriff or other officer, all or 
 any of the powers and authorities hereinbefore contained, and make such 
 rules and decisions as shall appear to be just, according to the circum- 
 stances of the case, and the costs of all such proceedings shall be in the 
 discretion of the Court. VII. All rules, orders, matters, and decisions to 
 be made and done in pursuance of this Act, except only the affidavits to 
 be filed, may together with the declaration in the cause, if any, be entered 
 of record, with a note in the margin expressing the true date of such 
 entry, to the end that the same may be evidence in future times, if re- 
 quired, and to secure and enforce the payment of costs directed by any 
 such Rule or Order ; and every such Rule or Order so entered shall have 
 the force and effect of a judgment, except only as to becoming a charge 
 on any lands, tenements, or hereditaments ; and in case any costs shall not 
 be paid within fifteen days after notice of the taxation and amount thereof 
 given to the party ordered to pay the same, his agent or attorney, execu- 
 tion may issue for the same by fieri facias or capias ad satisfaciendum, 
 adapted to the case, together with the costs of such entry, and of the 
 execution if by fieri facias ; and such writ or writs may bear teste on the 
 day of issuing the same, whether in term or vacation ; and the sheriff or 
 other officer executing any such writ shall be entitled to the same fees, 
 and no more, as upon any similar writ grounded upon a judgment of the 
 Court. VIII. And whereas by a certain Act made and passed in the 
 last Session of Parliament intituled An Act to improve the Proceedings in Pro- 
 hibition and on Writs of Mandamus, it was among other things enacted, 
 that it should be lawful for the Court to which application may be 
 made for any such Writ of Mandamus as is therein in that behalf 
 mentioned to make Rules and Orders calling not only upon the person 
 to whom such writ may be required to issue, but also all and every other 
 person having or claiming any right or interest in or to the matter of 
 such writ, to show cause against the issuing of such writ and payment 
 of the costs of the application, and upon the appearance of such other 
 person in compliance with such Rules, or, in default of appearance, after 
 service thereof, to exercise all such powers and authorities, and make all 
 such Rules and Orders applicable to the case, as were or might be given or 
 mentioned by or in any Act passed or to be passed during that present 
 Session of Parliament for giving relief against adverse claims made upon 
 persons having no interest in the subject of such claims ; and whereas no 
 such Act was passed during the then present Session of Parliament ; Be 
 it therefore enacted, that upon any such application as is in the said Act 
 and hereinbefore mentioned, it shall be lawful for the Court to exercise 
 all such powers and authorities, and make all such Rules and Orders appli- 
 cable to the case, as are given or mentioned by or in this present Act." 
 The Common Law Procedure Act, I860,* (23 & 24 Viet., c. 126), con- 
 
 *This Act is, curiously enough, called "Interpleader Act" in the 
 present Rules.
 
 276 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 tains the following provisions respecting " Interpleader Proceedings," in 
 S3. 12 to 18 : 
 
 " XII. Where an action has been commenced in respect of a Common 
 Law claim for the recovery of money or goods, or where goods or chattels 
 have heen taken or are intended to he taken in execution under process 
 issued from any one of the Superior Courts, or from the Court of Com- 
 mon Pleas at Lancaster or the Court of Pleas at Durham, and the Defen- 
 dant in such action, or the Sheriff or other officer, has applied for relief 
 under the provisions of an A.ct made and passed in the Session of Parlia- 
 ment held in the first and second year of the reign of His late Majesty 
 King William the Fourth, intituled A.n Act to enable Courts of Law 
 to give Relief against adverse Claims made upon Persons having no Interest 
 in the Subject of such Claims, it shall be lawful for the Court or a 
 Judge to whom such application is made to exercise all the powers 
 and authorities given to them by this Act and the hereinbefore men- 
 tioned Act passed in the Session of Parliament held in the first and 
 second years of the reign of His late Majesty King William the 
 Fourth, though the titles of the claimants to the money, goods, or 
 chattels in question, or to the proceeds or value thereof, have not a common 
 origin, but are adverse to and independent of one another. XIII. When 
 goods or chattels have been seized in execution by a Sheriff or other officer 
 under process of the above-mentioned Courts, and some third person 
 claims to be entitled under a bill of sale or otherwise to such goods or 
 chattels, by way of security for a debt, the Court or a Judge may order a 
 sale of the whole or part theieof, upon such terms as to payment of the 
 whole or part of the secured debt, or otherwise, as they or he shall think 
 fit, and may direct the application of the proceeds of such sale in such 
 manner and upon such terms as to such Court or Judge may seem just. 
 XIV. Upon the hearing of any Kule or Order calling upon persons to 
 appear and state the nature and particulars of their claims, it shall be 
 lawful for the Court or Judge, wherever, from the smallness of the amount 
 in dispute or of the value of the goods seized, it shall appear to them or 
 him desirable and right so to do, at the request of either party, to dispose 
 of the merits of the respective claims of such parties, and to determine 
 the same in a summary manner, upon such terms as they or he shall 
 think fit to impose, and to make such other Rules and Orders therein as to 
 Costs and all other matters as may he just. XV. In all cases of Inter- 
 pleader proceedings, where the question is one of law, and the facts are 
 not in dispute, the Judge shall be at liberty, at his discretion, to decide 
 the question without directing an action or issue, and, if he shall think 
 it desirable, to order that a Special Case be stated for the opinion of the 
 Court. XVI. The proceedings upon such case shall, as nearly as maybe, 
 be the same as upon a Special Case stated under " The Common Law 
 Procedure Act, 1852," and Error may be brought upon a judgment upon 
 such case ; and the provisions of " The Common Law Procedure A.ct, 
 18.54," as to bringing Error upon a Special Case, shall apply to the Pro- 
 ceedings in Error upon a Special Case under this A.ot. XVII. The judg- 
 ment in any such action or issue as may be directed by the Court or 
 Tudere in anv Interpleader proceedings, and the decision of the Court or 
 Judge in a summary manner, shall be final and conclusive against the 
 parties, and all persons claiming by, from, or under them. XVIII. All 
 Rules, Orders, matters, and decisions to be made and done in Interpleader 
 proceedings under this Act ^ excepting only any affidavits) may, together 
 with the declaration in the cause, if any be entered on Record, with a note
 
 RULES OF COURT. 277 
 
 in the margin expressing the true date of such entry, to the end that the 
 same may be evidence in future times, if required, and to secure and 
 enforce payment of costs directed hy any such Rule or Order ; and every 
 such Rule or Order so entered shall have the force and effect of a judgment 
 in the Superior Courts of Common Law. 
 
 Rule 3. 
 
 All other proceedings in and applications to the High 
 Court may, subject to these Rules, be taken and made in 
 the same manner as they would have been taken and made 
 in any Court in which any proceeding or application of the 
 like kind could have been taken or made if the Act had not 
 been passed. 
 
 i>ee section 21, supra, which this Rule follows. 
 
 ORDER II. 
 WRIT or SUMMONS AND PROCEDURE, &c. 
 
 Rule 1. 
 
 Every action in the High Court shall be commenced by 
 a writ of summons, which shall be indorsed with a state- 
 ment of the nature of the claim made, or of the relief or 
 remedy required in the action, and which shall specify the 
 Division of the High Court to which it is intended that the 
 action should be assigned. 
 
 This Rule is a re-enactment of Rule 2 of the Principal Act, which is 
 founded on section 2 of the C.P. Act, 1852. See Order III., Rule 2, as to 
 the indorsement required by this Rule. Forms of such indorsements 
 will be found in Part II. of Appendix (A). 
 
 The writ of summons also contains a vacant space for the letter and 
 number of the action, pursuant to Order V., Rule 8. In other particulars 
 it follows sections 2 6 of the Common Law Procedure Act, 1852, except 
 as to tests (see Rule 8). 
 
 By Order V., Rule 5, the writ of summons must be printed on the 
 paper, in the type and with the margin specified by Order LVI., Rule 2. 
 
 The commencement ot an action in the Chancery Division by a writ of 
 summons is a great departure from the former practice in suits in the 
 Court of Chancery. The first step in the institution of a suit in the Court 
 of Chancery has since the 1st of November, 1852, been to prepare the Bill 
 of Complaint, and deliver it to the Clerk of Records and Writs, who there- 
 upon tiled it, by writing on it the date and a number, and then, and not 
 till then, did the plaintiff proceed to bring the defendants before the Court,
 
 278 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 by serving them, and this not by serving them with a writ, but with a 
 printed copy of the Bill. 
 
 This Rule must be taken to completely repeal section 3 of the Chancery 
 Amendment Act, 1852 : 
 
 " The defendant shall be served with a printed Bill of Complaint, with 
 an indorsement thereon, in the form or to the effect set out in the Schedule 
 to this Act, with such Tariationsas circumstances may require."* 
 
 Rule 2. 
 
 Any costs occasioned by the use of any more prolix or 
 other forms of writs, and of indorsements thereon, than the 
 forms hereinafter prescribed, shall be borne by the party 
 using the same, unless the Court shall otherwise direct. 
 
 This Rule is a re-enactment of Rule 3 of the Principal Act, with the 
 omission of the initial words, " Forms of writs and of indorsements thereon, 
 applicable to the several ordinary causes of action, shall be prescribed by 
 the Rules of Court," and the addition of the words, "than the forms herein- 
 after described," so as to adapt the Rule to the present Act. 
 
 Rule 3. 
 
 The writ of summons for the commencement of an 
 action shall, except in the cases in which any different form 
 is hereinafter provided, be in Form No. 1 in Part I. of 
 Appendix (A.), hereto, with such variations as circum- 
 stances may require. 
 
 This is Rule 1 of Order I. of the Rule of Court drawn up in 1874 under 
 the Principal Act. 
 
 Compare the 2nd Section of the Common Law Procedure Act, 1852. 
 
 * The form in the Schedule runs thus : 
 "VICTORIA R. 
 
 " To the within-named Defendant C.D., greeting. 
 
 " We command you [' and every of you ' where there is more than One 
 Defendant], That within Eight Days after Service hereof on you, exclusive 
 of the Day of such Service, you cause an appearance to be entered for you 
 in our High Court of Chancery to the within Bill of Complaint of the 
 within-named A.S., and that you observe what our said Court shall 
 direct. Witness Ourself at Westminster, the 
 
 Day of in the Year of Our 
 
 -Reign, 
 
 " Note. If you fail to comply with the above Directions you will be 
 
 liable to be arrested and imprisoned. 
 
 "Appearances are to be entered at the Record and Writ 
 Clerks' Office, Chancery Lane, London."
 
 RULES OF COURT. 279 
 
 The words, "with such variations as circumstances may require," appear 
 to have been introduced with a view to relaxing the stringency of the rule 
 that the writ of summons must he in the prescribed form.* The form of 
 writ is copied from No. 1 of Schedule (A) of the Common Law Procedure 
 Act, 1852, with the necessary alterations to adapt it to the Principal Act 
 and this Act, the more remarkable being (1) the addition of a notice to the 
 defendant that he may appear by entering an appearance either personally 
 or by solicitor at [blank] office, at [blank place] ; and (2) the indorsement 
 of the plaintiffs claim (see as to the latter, the forms in Part II., sections 
 2, 4, &c., of Appendix A.) 
 
 Rule 4. 
 
 No writ of summons for service out of the jurisdiction, 
 or of which notice is to be given out of the jurisdiction, 
 shall be issued without the leave of a Court or Judge. 
 
 This is Rule 2 of Order 1 of the Rules of Court drawn up in 1874 under 
 the Principal Act. 1 he sections of the Common Law Procedure Act, 
 1S52, dealing with the question of writs for service out of the jurisdiction, 
 or where notice is to be given out of the jurisdiction, are the 18th and 19th, 
 which see. "Leave of a Court or a Judge" was not, under the forme* 
 practice, a condition precedent to the issue of the writ. It will be seen 
 from a reference to the form of the writ Appendix A, Part II., Form No. 
 2 that the number of days, to be specified in the body of the writ, for 
 entering an appearance, is not left as formerly to the plaintiff" to select, 
 but is to be filled up "as directed by the Court or a Judge ordering the 
 service or notice." It certainly seems more fair to the defendant that the 
 Court or a Judge should fix the time than the plaintiff. The time will, 
 no doubt, as hitherto, be " regulated by the distance from England of the 
 place wiiere the defendant is residing."t 
 
 The leave of the Court or a Judge being a condition precedent to the 
 issuing of the writ, it is apprehended that the Court or Judge must be 
 satisfied that there is a cause of action which arose within the juris- 
 diction befure granting such leave. Hitherto the Court or Judge did 
 not require to be satisfied that there was such cause of action until after 
 the writ had been served, and then it might turn out that the plaintiff 
 had taken all his trouble in serving the defendant fruitlessly, for it has 
 been expressly decided, in Binet v. Picot,j. that when it appears that the 
 cause of action did not arige within the jurisdiction, the Court will set 
 aside the writ and service. 
 
 Rule 5. 
 
 A writ of summons to be served out of the juris- 
 diction, or of which notice is to be given out of the 
 
 '' See Day's Common Law Procedure Acts, p. 30. 
 
 1 15 & 16 Viet., c. 76, s. 18. 
 J 4 H. and N., 365 ; L. J., 28 Ex., 244.
 
 280 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 jurisdiction, shall be in Form No. 2 in Part I. of Appendix 
 (A.) hereto, with such variations as circumstances may 
 require. Such notice shall he in Form No. 3 in the same 
 part, with such variations as circumstances may require. 
 
 This is Rule 3 of Order I of the Rules of Court drawn up in 1874 
 under the Principal Act, "Appendix (A)" being substituted for 
 " Schedule (A) " in order to adapt the Rule to the present Act. The 
 forms of the writ and notice of writ in lieu of service are copied from 
 Nos. 2 and 3 of Schedule (A) to the Common Law Procedure Act, 1852. 
 From a reference to the form, No. 2, it is evident that the former 
 practice, which requires service of a copy of the writ in the case of a 
 British subject residing out of the jurisdiction, and service of notice of 
 the writ in the case of a foreigner resident out of the jurisdiction 
 (see ss. 18 and 19 of the Common Law Procedure Act, 1852), is to be 
 continued. 
 
 The indorsements on the writ are to be "copied in full" into the 
 form of notice of the writ, No. 3. 
 
 Rule 6. 
 
 With respect to actions upon a bill of exchange or 
 promissory note, commenced within six months after the 
 same shall have become due and payable, the procedure 
 under the Bills of Exchange Act, 18 & 19 Viet. c. 67, 
 shall continue to be used. 
 
 This is Rule 4 of Order I of the Rules of Court drawn up in 1874 
 tinder the Principal Act. 
 
 The Summary Procedure on Bills of Exchange Act, 1855, (18 and 
 19 Viet. c. 67) is as follows : 
 
 " Whereas bond fide holders of dishonoured bills of exchange and 
 promissory notes are often unjustly delayed and put to unnecessary 
 expense in recovering the amount thereof by reason of frivolous or 
 fictitious defences to actions thereon, and it is expedient that greater 
 facilities than now exist should be given for the recovery of money 
 due on such bills and notes : Be it enacted by the Queen's Most Excel- 
 lent Majesty, by and with the advice and consent of the lords spiritual 
 and temporal, and commons, in this present Parliament assembled, and 
 by authority of the same, as follows : 
 
 " I. From and after the twenty-fourth day of October, one thousand 
 eight hundred and fifty-five, all actions upon bills of exchange or 
 promissory notes commenced within six months after the same shall 
 have become due and payable may be by writ of summons in the 
 special form contained in Schedule A. to this Act annexed, and endorsed 
 as therein mentioned ; and it shall be lawful for the plaintiff, on filing 
 an affidavit of personal service of such writ within the jurisdiction of 
 the Court, or an order for leave to proceed as provided by the Common 
 Law Procedure Act, 1852, and a copy of the writ of summons and the
 
 RULES OF COURT. 281 
 
 indorsement thereon, in case the defendant shall not have obtained 
 leave to appear and have appeared to such writ according to the 
 exigency thereof, at once to sign final judgment in the form con- 
 tained in schedule B. to this Act annexed (on which judgment 
 no proceeding in error shall lie) for any sum not exceeding 
 the sum indorsed on the writ, together with interest, at the rate 
 specified (if any) to the date of the judgment, and a sum for costs to be 
 fixed by the Masters of the Superior Courts or any three of them, subject 
 to the approval of the Judges thereof or any eight of them (of whom the 
 Lord Chief Justices and the Lord Chief Baron shall be three), unless the 
 plaintiff claim more than such fixed sum, in which case the costs shall be 
 taxed in the ordinary way, and the plaintiff may upon such judgment 
 issue execution forthwith. II. A Judge of any of the said Courts shall, 
 upon application within the period of twelve days from such service, 
 give leave to appear to such writ, and to defend the action, on the defend- 
 ant paying into Court the sum indorsed on the writ, or upon affidavits 
 satisfactory to the Judge, which disclose a legal or equitable defence, or 
 such facts as would make it incumbent on the holder to prove considera- 
 tion, or such other facts as the Judge may deem sufficient to support the 
 application, and on such terms as to security or otherwise as to the Judge 
 may seem fit. III. After judgment, the Court or a Ji^dge may, under 
 special circumstances, set aside the judgment, and, if necessary, stay or 
 set aside execution, and may give leave to appear to the writ, and to 
 defend the action, if it shall appear to be reasonable to the Court or Judge 
 so to do, and on such terms as to the Court or Judge may seem just. IV. 
 In any proceedings under this Act it shall be competent to the Court or 
 a Judge to order the bill or note sought to be proceeded upon to be forth- 
 with deposited with an officer of the Court, and further to order that all 
 proceedings shall be stayed until the plaintiff shall have given security 
 for the costs thereof. V. The holder of every dishonoured bill of ex- 
 change or promissory note shall have the same remedies for the recovery 
 of the expenses incurred in noting the same for non-acceptance or non- 
 payment or otherwise, by reason of such dishonour, as he has under this 
 Act for the recovery of the amount of such bill or note. VI. The 
 holder of any bill of exchange or promissory note may, if he think fit, 
 issue one writ of summons, according to this Act, against all or any number 
 of the parties to such bill or note, and snch writ of summons shall be the 
 commencement of an action or actions against the parties therein named 
 respectively, and all subsequent proceedings against such respective par- 
 ties shall in like manner, so far as may be, as if separate writs of summons 
 had been issued. VII. The provisions of the Common Law Procedure 
 Act, 1852, and the Common Law Procedure Act, 1854, nnd all rules made 
 under or by virtue of either of the said Acts, shall, so far as the same are 
 or may be made applicable, extend and apply to all proceedings to be had 
 or taken under this Act. VIII. The provisions of this Act shall apply, 
 as near as may be, to the Court of Common Pleas at Lancaster and the 
 Court of Pleas at Durham, and the Judges of such Courts, being 
 Judges of one of the Superior Courts of Common Law at Westminster, 
 shall have power to frame all rules and process necessary thereto. IX. 
 It shall be lawful for Her Majesty from time to time, by an order in 
 Council, to direct that all or any part of the provisions of this Act shall 
 apply to all or any Court or Courts of Record in England and Wales, and 
 within one month after such order shall have been made and published in 
 the " London U-azette " such provisions shall extend and apply in manner
 
 282 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 directed by such order, and any such order may be, in like manner, from 
 time to time altered and annulled ; and in and by any such order Her 
 Majesty may direct by whom any powers or duties incident to the provi- 
 sions applied under this Act shall and may be exercised with respect to 
 matters in such Court or Courts, and may make any orders or regulations 
 which may be deemed requisite for carrying into operation in such Court 
 or Courts the provisions so applied. X. Nothing in this Act shall extend 
 to Ireland or Scotland. XI. In citing this Act in any instrument, 
 document, or proceedings, it shall be sufficient to use the expression ' The 
 Summary Procedure on Bills of Exchange Act, 1855.' " 
 
 " Schedules referred to in the foregoing Act. 
 
 " A 
 " Victoria; by the grace of God, &c. 
 
 " To C. D:, of , in the county of 
 
 We warn you, that unless within twelve days after the service of this 
 writ on you, inclusive of the day of such service, you Obtain leave from 
 one of the Judges of the Courts at Westminster to appear, and do within 
 that time appear in our Court of in an action at the suit of 
 
 A.B., the said A.B. may proceed to judgment and execution. 
 
 ' Witness, &c. 
 
 " Memorandum to be subscribed on the writ. 
 
 " N.B. This writ is to be served within six calendar months from the 
 date thereof, or if renewed, from the date of such renewal, including the 
 day of such date, and not afterwards. 
 
 " Indorsement to be made on the tcrit before service thereof. 
 *' This writ was issued by E.F., of j attorney for the 
 
 plaintiff. Or, This writ was issued in person by A.B., who resides at 
 [mention the city, town, or parish, and also the name of the hamlet, street, 
 and number of the house of the plaintiff' s residence:^ 
 
 " Indorsement. 
 
 " The plaintiff claims [ pounds principal and interest], or 
 
 pounds balance of principal and interest due to him as the payee [or 
 indorsee] of a bill of exchange or promissory note, of which the following 
 is a copy : 
 
 [Heie copy bill of exchange or promissory note, and all indorsement$ 
 
 upon it.~\ 
 
 And if the amount thereof be paid to the plaintiff or his attorney 
 within da) s from the service hereof ; further proceedings 
 
 will be stayed. 
 
 <l Notice. 
 
 " Take notice, that if the defendant do not obtain leave from one of the 
 Judges of the Courts within twelve days after having been served with 
 this writ, inclusive of the day of such service, to appear thereto, and do not 
 within such time cause an appearance to be entered for him in the Court 
 out of which this writ issues, the plaintiff will be at liberty at any time 
 after the expiration of such twelve days to sign final judgment for any 
 sum not exceeding the sum above claimed, and the sum of 
 pounds for costs, and issue execution for the same. 
 
 " Leave to appear may be obtained on an application at the Judges
 
 RULES OF COURT. 283 
 
 Chambers, Serjeants' Inn, London, supported by affidavit showing that 
 there is a defence to the action on the merits, or that it is reasonable that 
 the defendant should be allowed to appear in the action. 
 
 " Indorsement to be made on the writ after service thereof. 
 
 " This writ was served by X. Y. on L. M. (the defendant the 
 
 defendants), on Monday the day of 18 ; 
 
 " By X. T. 
 
 "B. 
 
 " In the Queen's Bench. 
 
 " On the day of in the y6ar of our Lord 18 
 
 \_Day of signing judgment^ 
 
 "England (to wit). A. B. in his own person [or by hia 
 
 attorney] sued out a writ against C. D., indorsed as follows : 
 
 " [Here copy indorsement of plaintiff's claim.] 
 and the said C. J). has not appeared : 
 
 " Therefore it is considered that the said A. B. recover against the said 
 C. D. pounds, together with pounds for costs 
 
 of suit." 
 
 Rule 7. 
 
 The writ of summons in every Admiralty action in 
 rein shall be in Form No. 4 of Part I. of Schedule (A) 
 hereto, with such variations as circumstances may require. 
 
 This is Rule 6 of Order I. of the Rules of Court drawn up in 1874 under 
 the Principal Act, "Appendix (A)" being substituted for "Schedule 
 (A) " in order to adapt th<5 Rule to the present Act. The form No. 4 of 
 Part I. of Appendix (A) is substituted for the warrant to arrest the ships 
 and [or] cargo under the old practice, for a copy of which see Williams 
 and Brucc's " Admiralty Practice," Appendix, p. XLIX. 
 
 The writ of summons under this Rule is addressed " to the men and 
 " parties interested in the ships" (or " cargo," as the case may be). The 
 warrant was addressed to the Marshal of the High Court of Admiralty 
 and his substitutes; oddly enough the new writ contains no reference 
 to the cause except in the title. The writ authorizes, instead of com- 
 manding, the arrest. The command is addressed to the men and par- 
 ties interested to appear within eight days. The warrant commanded 
 the Marshal and his substitutes to cite all persons having or claiming to 
 have any right, title, or interest to appear within six days. 
 
 An action in personam in the Court of Admiralty was commenced by a 
 citation in personam, addressed to the defendant, and somewhat resemb- 
 ling in its contents an ordinary writ of summons in the Supreme Court 
 of Common Law ; instead of being tested by a Judge, it was signed by 
 the Registrar. As no mention is made of the citation in personam in 
 these Rules it must be assumed that it is abolished, and the form of writ 
 applicable to the other Divisions are applicable to it. The same observa- 
 tion applies to the form of citation in the Probate Court, which must be, 
 taken to be superseded by the forms mentioned in Rules 3 and 5.
 
 284 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 8. 
 
 Every writ of summons, and also every other writ, 
 shall bear date on the day on which the same shall be 
 issued, and shall be tested in the name of the Lord Chan- 
 cellor, or, if the office of Lord Chancellor shall be vacant, 
 in the name of the Lord Chief Justice of England. 
 
 This is Rule 7 of Order I of the Rules of Court drawn up in 1874 under 
 the Principal Act. This Rule repeals s. 5 of the Common Law Pro- 
 cedure Act, 1852, which provides that "Every writ of summons shall 
 be tested in the name of the Lord Chief Justice and Lord Chief Baron of 
 the Court from which the same shall issue, or in case of a vacancy of such 
 office, then in the name of a senior Judge of the said Courts.' ' 
 
 See p. 480 and Appendix. 
 
 OH DEB, III. 
 
 INDORSEMENTS OF CLAIM. 
 
 Rule 1. 
 
 The indorsement of claim shall be made on every writ 
 of summons before it is issued. 
 
 This is Rule 1 and Order II of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 The indorsement of a claim on the writ of summons in every case is one 
 of the peculiar features of the system of procedure introduced by the 
 Judicature Acts. By section 8 of the Common Law Procedure Act, 1852, 
 it is provided that " upon the writ and copy of any writ served for the 
 payment of any debt, the amount of the debt shall be stated, and the amount 
 of what the plaintiffs attorney claims for costs." It has been expressly 
 decided* that if a plaintiff claims both a debt and damages a fortiori, 
 if he claims damages only he need not indorse the amount of his claim 
 pn the writ. The claim must now in all cases be indorsed. On a reference 
 to the forms headed "damages and other claims" in Appendix (A), Part 
 II., section4, it will be seen that the amount of the claim is not to be in- 
 dorsed where the claim is for damages, and not for a debt. The expres- 
 sion used is, " The plaintiff's claim is for damages," without stating the 
 amount. The difficulty which arose in cases of actions for breaches of 
 conditions in bonds, as to fixing the precise amount of the claim, regarded 
 as in the nature of a debt,f cannot arise under the new system, as the 
 amount of the claim is left perfectly open, while the nature of the claim ia 
 stated. 
 
 * Perry v. Patchett, 2 Dowl. 667. This was an action for the value of 
 a stack of hay, and also for damages over for the illegal distraint of it. 
 f See Rowland v. Dakeyrp, 2 Dowl. 832; Smart v. Lovett, 3 Dowl. 34.
 
 RULES OF COURT. 285 
 
 Rule 2. 
 
 In the indorsement required by Order II., Rule 1, 
 it shall not be essential to set forth the precise ground of 
 complaint, or the precise remedy or relief to which the 
 plaintiff considers himself entitled. The plaintiff may by 
 leave of the Court or Judge amend such indorsement so 
 as to extend it to any other cause of action, or any 
 additional remedy or relief. 
 
 This is Rule 2 of Order II. of the Rules drawn up in 1874 under the 
 Principal Act, "Order II., Rule 1," being substituted for " Rule 2 of the 
 Schedule to the Act," to adapt the Rule to the present Act. 
 
 The forms in Appendix (A), Part II., do set out, though not very con- 
 cisely, " the precise remedy or relief to which the plaintiff considers 
 himself entitled." 
 
 The concluding sentence of this Rule accords with s. 20 of the Common 
 Law Procedure Act : " Any writ may be amended upon application to 
 be made to the Court or to a Judge." The amendment sanctioned by this 
 Rule may, however, extend the inddrsement to any other cause of action 
 or any additional remedy or relief. Amendments under s. 20 of the 
 Common Law Procedure Act, 1852, only applied to such small matters as 
 altering the date* to make it Correspond with the prcccipe, or putting 
 in the Christian names of defendants.! It is questionable whether the 
 Court or a Judge would now entertain an application to " set aside the 
 writ as irregular," under s. 20 6i the Common Law Procedure Act, 
 1852. 
 
 Rule 3. 
 
 The indorsement of claim may be to the effect of 
 such of the Forms in Part II. of Appendix (A) hereto as 
 shall be applicable to the case, or if none be found appli- 
 cable, then such other similarly concise form as the nature 
 of the case may require. 
 
 This is Rule 3 of Order II. of the Rules of Court drawn up in 1874 
 under the Principal Act, "Appendix (A) " being substituted for " Sche- 
 dule (A) " in order to adapt the Rule to the present Act. 
 
 It will be seen that there are forms suitable for actions in the Chancery, J 
 Probate, Admiralty|| and Common LawIT Divisions of the High Court. 
 
 * Kirk v. Dolby, 6 M. & W. 636. 
 
 f Rutherford v. Mein, 2 Smith, 392. 
 
 J Section 1. Sections. || Section 6. U Sections 2, 4 and 7.
 
 286 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 4. 
 
 If the plaintiff sues, or the defendant or any of the 
 defendants is sued in a representative capacity, the in- 
 dorsement shall show, in manner appearing by the state- 
 ment in Appendix (A) hereto, Part II.. sec 8, or by 
 any other statement to the like effect, in what capacity the 
 plaintiff or defendant sues or is sued. 
 
 This is Rule 4 of Order II. of the Rules of Court drawn up in 1874 
 under the Principal Act, " Appendix (A) " being substituted for " Sche- 
 dule (A) " in order to adapt the Rule to the present Act. 
 
 It will be perceived that in these forms referred to the word " as " is 
 used before the particular word expressing the " capacity " in which the 
 party sues or is sued. It has been decided that if a plaintiff describes him- 
 self thus, " A B executor," he may declare for a cause of action accruing 
 to him in his own right, but that if he describe himself, " A B as executor 
 of C D," he can only declare for a cause of action accruing to him in 
 that character.* It is apprehended that the present rule will prevent a plain- 
 tiff from issuing a writ as if for a cause of action accruing tp himself in his 
 own right and then declaring in auter droit, a mode of proceeding which 
 has hitherto been perfectly legal, though hardly fair to defendants, t 
 Defendants have also a right to know in what capacity they themselves 
 are sued. 
 
 Rule 5. 
 
 In Probate actions the indorsements shall show whether 
 the plaintiff claims as creditor, executor, administrator, 
 residuary legatee, legatee, next of kin, heir-at-law, devisee, 
 or in any and what other character. 
 
 This is Rule 5 of Order II., of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 Rule 6. 
 
 In all actions where the plaintiff seeks merely to recover 
 a debt or liquidated demand in money payable by the 
 defendant, with or without interest, arising upon a contract, 
 express or implied, as, for instance, on a bill of exchange, 
 
 * Anon., Executors, v.Anon., 1 Dowl. 97. 
 
 t See note to case last cited, and 2 Str. 1232 n (1), Ashworth v Itvall 
 1 B & Adol., 19 (misquoted "Aid." 1 Dowl. 98).
 
 "RULES OF COURT. 287 
 
 promissory note, cheque, or other simple contract debt, or 
 on a bond or contract under seal for payment of a liquidated 
 amount of money, or on a statute where the sum sought to 
 be recovered is a fixed sum of money or in the nature of a 
 debt, or on a guaranty, whether under seal or not, where 
 the claim against the principal is in respect of such debt or 
 liquidated demand, bill, cheque, or note, or on a trust, the 
 writ of summons may be specially indorsed with the particu- 
 lars of the amount sought to be recovered, after giving credit 
 for any payment or set-off. 
 
 This Rule is a re-enactment of Rule 7, of the Principal Act, which is 
 copied from s. 25 of the Common Law Procedure Act, 1852. Forms of 
 special indorsements under this Rule will be found in Appendix ; ( A), Part 
 II., section 7, infra. 
 
 See Order XIII., Rules 3 and 4, as to signing final judgment in case of 
 non-appearance, when the writ is specially indorsed under this section. 
 
 As to calling on the defendant to show cause why the plaintiff should 
 not be at liberty to sign final judgment, when the defendant appears on a 
 writ specially indorsed under this Rule, see Order XIV., Rule 1, infra. 
 As to the short form of statement of claim, when the writ is specially 
 indorsed, see Order XXI., Rule 4, infra, and Appendix (B), Form No. 3. 
 
 The adoption of the principle of the 25th section of the Common Law 
 Procedure Act was recommended by the Judicature Commission : _ 
 
 " In all cases in which the plaintiff seeks to recover a money demand, 
 when founded upon a legal or equitable, right, the practice established by 
 the Common Law Procedure Act, 1852, should, we think, be adopted, and 
 the writ should be specially indorsed with the amount sought to be 
 recovered, nnd in default of appearance the plaintiff should be allowed to 
 sign judgment for it " (as to which see Order XIII., Rule 3). " Further, 
 in all cases in which a special indorsement has been made on a writ, and the 
 defendant has appeared, the plaintiff should be entitled, on affidavit 
 verifying the cause of action and swearing that in his belief there is no 
 defence, to take out a summons to show cause why he should not be at 
 liberty to sign judgment; upon which summons such order may be made 
 as the justice ot the case may require " (as to which see Order XIV). 
 
 Rule 7. 
 
 Wherever the plaintiff's claim is for a debt or 
 liquidated demand only, the indorsement, beside stating 
 the nature of the claim, shall state the amount claimed 
 for debt, or in respect of such demand, and for costs re- 
 spectively, and shall further state, that upon payment
 
 288 SUPREME COURT OF JUDICATURE ACT, 1875 
 
 thereof within four days after service, or, in case of a writ 
 not for service within the jurisdiction, within the time 
 allowed for appearance, further proceedings will be stayed. 
 Such statement may be in the form in Appendix (A) 
 hereto, Part II., sec. 3. The defendant may, notwith- 
 standing such payment, have the costs taxed, and if more 
 than one-sixth shall be disallowed, the plaintiff's solicitor 
 shall pay the costs of taxation. 
 
 This is Rule 6 of Order II., of the Rules of Court up drawn in 1874 
 under the Principal Act, " Appendix A" being substituted for " Schedule 
 A," to adapt the Rule to the present Act. 
 
 This Rule is copied almost verbatim from s. 8 of the Common Law Proce- 
 dure Act, 1852, where the form also is given. 
 
 Although the nature of the plaintiff's claim is, by Rule 1, to be indorsed 
 upon the writ in all cases, whether it be for debt or damages, yet the old 
 practice with respect to stay of proceedings upon payment within four 
 days is preserved, in the case of a claim for a debt only. The check upon 
 overcharging under the old practice has also been preserved.* 
 
 Rule 8. 
 
 In all cases of ordinary account, as, for instance, in the 
 case of a partnership or executorship or ordinary trust 
 account, where the plaintiff, in the first instance, desires to 
 have an account taken, the writ of summons shall be 
 indorsed with a claim that such account be taken. 
 
 This Rule is a re-enactment of the first part of Rule 8 of the Principal 
 Act. 
 
 See Order XV.. as to making an order for the account claimed in default 
 of appearance to a summons indorsed under this *ii|^^ 
 
 This Rule is copied almost verbatim from the First Report of the 
 Judicature Commission : f 
 
 "In like manner, in cases of ordinary account, or in the case of a 
 partnership or executorship or ordinary trust account, when nothing 
 more is required in the first instance than an account, the writ should be 
 specially indorsed." 
 
 * It should be noted that, although this Rule speaks of " a debt or liqui- 
 dated demand," the same phrase as used in the preceding Rule, it has no 
 reference to " special " indorsements. 
 
 t P. 11.
 
 RULES OF COURT. 289 
 
 ORDER IV. 
 
 INDORSEMENT OF ADDRESS. 
 
 Rule 1. 
 
 The solicitor of a plaintiff suing by a solicitor shall 
 indorse upon every writ of summons and notice in lieu of 
 service of a writ of summons the address of the plaintiff, 
 and also his own name or firm and place of business, and 
 also, if his place of business shall be more than three miles 
 from Temple Bar, another proper place, to be called his "ad- 
 dressfor service," which shall not be more than three miles 
 from Temple Bar, where writs, notices, petitions, orders, 
 summonses, warrants, and other documents, proceedings 
 and written communications, may be left for him. And 
 where any such solicitor is only agent of another solicitor, 
 he shall add to his own name or firm and place of business 
 the name or firm and place of business of the principal 
 solicitor. 
 
 This is Rule 1 of Order III. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 It is somewhat singular that Temple Bar should have heen selected as 
 the centre, that edifice being doomed to removal or destruction. Its 
 proximity to the Masters' and the Records and Writ Clerks' Offices is 
 probably the reason for the selection. 
 
 Compare with this Rule section 6 of the Common Law Procedure Act, 
 1852, for the early part of which it is, pro tanto, substituted " Every 
 writ of summons shall be indorsed with the name and place of abode of 
 the attorney actually suing out the same, and in case such attorney shall 
 not bo an attorney of the Court, in which the same is sued out, then also with 
 the name and place of abode of the attorney of such Court in whose name 
 such writ shall be taken out ; and when the attorney actually suing out 
 any writ shall sue out the same as agent for an attorney in the country, 
 the name and place of abode of such attorney in the country shall also be 
 indorsed upon the writ." 
 
 One of the effects of the consolidation of the Superior Courts of Commom. 
 Law and Equity into one Supreme Court is the admission of attorneys and 
 solicitors to be solicitors of the Supreme Court, in lieu of being admitted 
 attorneys or solicitors of any one or more of the Superior Courts. There- 
 fore the contingency contemplated in section 6 of the Common Law Pro- 
 cedure Act, 1852, of "the attorney actually suing out the writ" not being 
 "an attorney of the Court in which it is sued out" cannot arise. No 
 provision, therefore, is made in this Rule for any such contingency. 
 
 * 2 Bowl. 145 ; Hartley v. Rodenlmrst, 4 Dowl. 748. 
 
 19
 
 290 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 It was decided in Engleheart v. Eyre that where the writ is sued out Ly a 
 firm of attorneys the name of the firm should he indorsed. The present 
 Rule provides expressly for the indorsement of the name of the firm (if 
 any), both of the solicitor suing out the writ, and also of the solicitor 
 (if any) for whom he is agent. 
 
 It is also provided that " the solicitor suing out the writ shall indorse upon 
 it " the address of the plaintiff." This is new, and a decided improvement, 
 a defendant being entitled to full information as to the person to whom he 
 may address himself for a settlement of the action against him.* A refer- 
 ence to the form of writ given in Schedule (A) to the Common Law Pro- 
 cedure Act, No. 1, will show that no space is left for the address of the 
 plaintiff where the plaintiff appears hy attorney. In the form given in 
 Appendix (A) Part 1, JJo. 1, infra, the words " who resides at" are inserted 
 after the word "plaintiff" when the plaintiff appears by attorney, and a 
 blank is left for the plaintiff's address after the word " at." 
 
 It will seem that the solicitor is to indorse his own "place of business" 
 on his writ. This is an improvement on " place of abode," which might 
 mean his private residence.f 
 
 The provisions respecting an " address for service " are founded on 
 Reg. Gen., Hil. T., 1853, Rule 165, but it is a new provision that the address 
 the service shall be indorsed upon the writ. It was formerly written in a 
 book kept at the Master's office, but the copy of the writ filed there in 
 future will contain it. 
 
 It will be perceived that nothing is said about the address of the 
 defendant. It is apprehended that the provisions of section 2 of the Com- 
 mon Law Procedure Act, 1852, still apply. A reference to the form in 
 Appendix' (A), Part 1, No. 1, infra, will show that the same words as 
 occur in the form given in Schedule (A) to the Common Law Procedure 
 Act, No. 1, are used, in respect of the defendant's address : 
 
 " To C.D.of.( ) in the county of ( ) " 
 
 Rule 2. 
 
 A plaintiff suing in person shall indorse upon every 
 writ of summons and notice in lieu of service of a writ of 
 summons his place of residence and occupation, and also, 
 if his place of residence shall be more than three miles 
 from Temple Bar, another proper place, to be called his 
 " address for service," which shall not be more than three 
 miles from Temple Bar, where writs, notices, petitions, 
 orders, summonses, warrants, and other documents, pro- 
 ceedings, and written communications may be left for him. 
 
 [The above two rules are to apply to all cases in which 
 
 * Day's Common Law Procedure Acts, 32, 33, 4th ed. (1872.) 
 
 f See the decisions as to the meaning of the words " place of abode," 
 
 " residence," and " dwelling," collected in Attenborough v. Thompson, 2 H. 
 
 and N., 559, and in Kerr v. Haynes, L. J. 29, C. B. 44. 
 t See Notanda.
 
 RULES OF COURT. 291 
 
 the icrit of summons is issued out of the London office, or 
 out of a District Registry tchere the defendant has the 
 option of entering an appearance either in the District 
 Registry or the London office.'] 
 
 This Eule and the note are identical with Bule 2 of Order III. of the 
 Kules of Court drawn up in 1874 under the Principal Act, and the note 
 thereto. 
 
 Compare with this Eule s. 6 of the Common Law Procedure Act, 1852, 
 for the latter part of which it is, pro tanto, substituted. " In case no 
 attorney shall he employed to issue the writ, then it shall be indorsed 
 with a memorandum expressing that the same has been sued out by the 
 plaintiff in person, mentioning the city, town, parish, and also the 
 name of the hamlet, street, and number of the house of such plaintiff's 
 residence, if any such there be." 
 
 " His place of residence." A reference to the form No. 1 in Appendix 
 (A) Part 1, will show that the "city, town, or parish, and^also the name 
 of the street, and number of the house of the plaintiff's residence (if any) " 
 must be specifically mentioned. 
 
 The provision respecting an "address for service" is founded on Reg. 
 Gen., Hil. T., 1853, and Eule 166, but it is a new provision that the 
 "address for service" shall be indorsed on the writ. Formerly it was 
 written in a book kept at the Master's office. (See note to Eule 1.) 
 
 Rule 3. 
 
 In all other cases where a writ of summons is issued 
 out of a District Eegistry it shall be sufficient for the 
 solicitor to give on the writ the address of the plaintiff 
 and his own name or firm and his place of business within 
 the district, or for the plaintiff, if he sues in person, to give 
 on the writ his place of residence and occupation, and if 
 his place of residence be not within the district, an address 
 for service within the district. 
 
 This is Rule 3 of Order III. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 ORDER V. 
 
 ISSUE OF WRITS OF SUMMONS. 
 
 1. Place of Issue. 
 
 Rule 1. 
 In any action other than a Probate action, the plaintiff
 
 292 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 wherever resident, may issue a writ of summons out of 
 the Registry of any district. 
 
 This is Rule 1 of Order IV. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 By s. 64 of the Principal Act, -writs of summons for the commencement 
 of actions in the High Court of Justice shall be issued by the District 
 Registrars, when thereunto required. 
 
 As to the removal of the action by the defendant as of right see 
 Order XXXV., Puiles 11-14. 
 
 Rule 2, 
 
 In all cases where a defendant neither resides nor 
 carries on business within the district out of the Registry 
 whereof a writ of summons is issued, there shall be a state- 
 ment on the face of the writ of summons that such defen- 
 dant may cause an appearance to be entered at his option 
 either at the District Registry or the London office, or a 
 statement to the like effect. 
 
 This is Rule 2 of Order IV. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This provision is based on the wholesome policy of affording the defen- 
 dant full information. See Order XII., Rule 2, as to the case when the 
 defendant resides or carries on his business within the District Registry. 
 
 Rule 3. 
 
 In all cases where a defendant resides or carries on 
 "business within the district, and a writ of summons is 
 issued out of the District Registry, there shall be a state- 
 ment on the face of the writ of summons that the defen- 
 dant do cause an appearance to be entered at the District 
 Registry, or to the like effect. 
 
 This is Rule 3 of Order IV. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This does not preclude the defendant from removing the action, as of 
 right, at any time after appearance, under Rule 11 of the XXXVth 
 Order. 
 
 2. Option to choose division in certain cases. 
 
 Rule 4. 
 Subject to the power of transfer, every person by
 
 RULES OF COURT. 293' 
 
 whom any cause or matter may be commenced in the High 
 Court of Justice which would have been within the non- 
 exclusive cognisance of the High Court of Admiralty if 
 the said Act had not passed shall assign such cause or 
 matter to any one of the Divisions of the said High Court, 
 including the Probate, Divorce, and Admiralty Division, 
 as he may think fit, by marking the document by which 
 the same is commenced with the name of the Division, and 
 giving notice thereof to the proper officer of the Court. 
 If so marked, for the Chancery Division, the same shall be 
 assigned to one of the Judges of such Division by marking 
 the same with the name of such of the said Judges as the 
 plaintiff or petitioner (subject to such power of transfer) 
 may think fit. 
 
 This is Rule 4 of Order IV. of the Kules of Court drawn up in 1874 
 under the Principal Act. 
 
 See Rule 9 of the present Order, infra, as to the manner in which notice 
 to the proper officer of the Court is to he given. 
 
 "The power of transfer." See section 36 of the Principal Act, Order 
 LI., Rules 1 and 2. 
 
 By section 11, suh-section (3), supra, it is provided, that, "subject to 
 Rules of Court, a person commencing any cause or matter shall not assign 
 the same to the Prohate Divorce, and Admiralty Division unless he could 
 have been entitled to commence the same in the Court of Prohate or in 
 the Court for Divorce and Matrimonial causes, or in the High Court of 
 Admiralty, if this Act had not passed.' ' " Which would have been within 
 the non-exclusive cognizance" is, it is apprehended, a crabbed phrase 
 for " which would not have been within the exclusive cognizance." 
 
 Section 11, supra, says, " subject to Rules of Court." Causes common 
 to the Court of Admiralty and other Courts may be assigned to either by 
 this Rule. See, as to the exclusive jurisdiction, s. 34, clause 5 (2) of the 
 Principal Act. 
 
 " Name of the Judge." See the Forms 2,3, and 4 in the Appendix (C) . It 
 will be seen that a space is left for the name of the Judge, thus, <: In the 
 High Court of Justice, Chancery Division [name of Judge]." Suits in 
 Chancery have hitherto been held before a single Judge. See p. 94 and 
 section 42 of the Principal Act. 
 
 3. Generally. 
 
 Rule 5. 
 
 Writs of summons shall be prepared by the plaintiff 
 or his solicitor, and shall be written or printed, or partly
 
 294 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 written and partly printed, on paper of the same descrip- 
 tion as hereby directed in the case of proceedings directed 
 to be printed. 
 
 This is Rule 5 of Order IV. of the Eules of Court drawn up in 1874, 
 under the Principal Act. 
 
 " The writ," observes Mr. Day,* " is issued hy the Court, hut it is pre- 
 pared hy the plaintiff or his attorney." 
 
 "Paper of the same description :" i.e. "cream wove machine drawing fools- 
 cap folio paper, 19 Ihs. per mill ream, or thereahouts." Order LVL, Rule 2. 
 (See note to that enactment.) This involves the abolition of parchment 
 writs. The practice is borrowed from the Court of Chancery. By the 
 Chancery Amendment Act, 1 852, it was provided, that " the practice of en- 
 grossing on parchment Bills of Complaint or Claims to be filed in the 
 Court, or of filing such engrossment, shall be discontinued ; and the Clerks 
 of Records and Writs of the said Court shall receive and file a printed 
 Bill of Complaint or Claim, in lieu of an engrossment thereof, in like 
 manner as they now receive and tile such engrossment." 
 
 Rule 2 of Order LVI. is copied from Order IX., Rule 3, of the Consoli- 
 dated Orders of the Court of Chancery, as to printing, f 
 
 Rule 6. 
 
 Every writ of summons shall be sealed by the proper 
 officer, and shall thereupon be deemed to be issued. 
 
 This is Rule 6 of Order IV. of the Rules of Court drawn up in 1874, 
 under the Principal Act. 
 
 " The indorsements," says Mr. Day, J when stating the old Common Law 
 practice, " being made on the writ, it must be sealed at the office of the 
 Court from which it is issued." 
 
 By Order I. (VI.) 37 of the Consolidated Orders of the Court of Chan- 
 cery, the Clerks of Records and Writs have the duty cast upon them of 
 sealing writs. A writ when sealed by them has the same force and 
 validity as such writ has when sealed with the Great Seal. Proceedings, 
 however, have not for some years been commenced in Chancery by writ of 
 subposna or of summons, but by serving a copy of the Bill, and a writ of 
 summons is not one of the writs to which the above Rule is applicable. 
 
 Rule 7. 
 
 The plaintiff or his solicitor shall, on presenting any 
 writ of summons for sealing, leave with the officer a copy, 
 written or printed, or partly written and partly printed, 
 
 * Common Law Procedure Acts, p. 31, 4th edn. (1872). 
 t See Morgan and Chute's Chancery Acts and Orders, p. 409 ; Daniel's 
 Chancery Practice, p. 322 ; Forms to same, p. 195. 
 J Common Law Procedure Acts, ubi supra. 
 \ See Morgan and Chute's Chancery Acts, and Acts and Orders, 379, 380.
 
 RULES OF COURT. 295 
 
 on paper of the description aforesaid, of such writ, and all 
 the indorsements thereon, and such copy shall be signed 
 by or for the solicitor leaving the same, or by the plaintiff 
 himself if he sues in person. 
 
 This is Rule 7 of Order IV. of the "Rules of Court drawn up in 1874, 
 under the Principal Act. 
 
 " Paper of the description aforesaid." See "Rule 5, supra, and Order 
 LVL, Rule 2. 
 
 No mention is made of a pracipe in this or the following Rules. By 
 Order XL1I, Rule 10, it is provided that " No writ of execution shall be 
 issued without uprtscipe." 
 
 Thepracijje was left with the officer,* who filed it and entered full parti- 
 culars of it in a book kept for the purpose, t 
 
 Instead of the pracipe, it seems that the plaintiff, or his solicitor, is to 
 leave a copy of the writ, which is to bejiled. (See the next section.) J 
 
 The filing of a copy of a writ, and of "all the indorsements thereon," 
 seems to be borrowed from, the practice of the Court of Chancery of filing 
 a copy of the Bill. It is provided by Order VIII, Rule 1, of the Consoli- 
 dated Orders of the Court of Chancery that no Bill shall be filed unless 
 igiied by Counsel. A Bill does not require to be signed by the 
 plaintiff or his attorney. || 
 
 It will be seen from the form of praeipelt that it was signed by the 
 plaintiff's attorney, or by the plaintiff himself, if he sued in person. 
 
 The present Rules provide that the copy of the writ left, in lieu of the 
 preccipe, shall be similarly signed. 
 
 It is to be observed that under the old Chancery Practice** it was neces- 
 sary to take aprcecijje to the Clerk of Records and ~Writs,ft and get it filed 
 by him, at the time at which he sealed the writ of subpoena. 
 
 Rule 8. 
 
 The officer receiving such copy shall file the same, 
 and an entry of the filing thereof shall be made in a book 
 to be called the Cause Book, which is to be kept in the 
 manner in which Cause Books have heretofore been kept 
 by the Clerks of Records and "Writs in the Court of 
 Chancery,JJ and the action shall be distinguished by the 
 
 *See Archbold's Practice, p. 198. 
 
 t Archbold's Forms, p. 42, n. (a.) % See Archbold, itbi supra. 
 
 See 15 & 16 Viet., c. 86, ss. 1, 4 : Order VIII, Rule 3, and Order IX, 
 Rule 4, of the Consolidated Orders of the Court of Chancery. 
 || Ayckbourn's Chancery Practice, p. 12. 
 IT Archbold's Practice, p. 42. 
 
 ** See Ayckbourn's Chancery Practice, 5th edn., p. 30. 
 ft Or Clerk at the Subpoena Office. 
 2J See " the manner in which Cause books are kept" in the Appendix.
 
 296 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 date of the year, a letter, and a number, in the manner in 
 which causes are now distinguished in such last-mentioned 
 Cause Books. 
 
 This is Rule 8, Order IV., of the Rules of Court drawn up in 1874, under 
 the Principal Act. 
 
 This Rule effects a considerable change in the practice of the Superior 
 Courts of Common Law. Hitherto the commencement of the action has 
 been noted up in one took in the defendant's name, and the appearance to 
 the action in another, also in the defendant's name, in the simplest pos- 
 sible form. To the greater number of actions, no appearance is entered 
 at all, the mere serving of the writ being sufficient to bring the defendant 
 to terms. Out of 4,008 actions in one of the Superior Courts it is no 
 uncommon thing for appearances to be entered only in 1,500. The " writ 
 book" contains nothing but the names of the defendant, and of the plaintiff 
 and his attorney. The appearance book contains only the names of the 
 defendant, the plaintiff and of the defendant's attorney. The Common 
 Law officers will be obliged in future to incorporate the appearance 
 in the same book in which the commencement of the action is recorded 
 
 The Clerks of Records and Writs in Chancery perform all such duties as 
 were formerly performed by the six clerks, sworn clerks, and waiting clerks, 
 as officers of the Court of Chancery.* Amongst their duties is the filing 
 of all Bills, answers, and other pleadings, and the filing of appearances. t 
 
 All suits and proceedings in the Court of Chancery are divided amongst 
 the Clerks of Records and Writs according to the letters of the plaintiffs 
 or first plaintiff's surname and all subsequent proceedings, bills of review 
 or supplement for example, are to be filed under the same name, although 
 the plaintiff's or first plaintiffs surname in the subsequent proceedings 
 may not be the same in the original suit.J 
 
 Rule 9. 
 
 Notice to the proper officer of the assignment of an 
 action to any Division of the Court under Section 11 of the 
 Supreme Court of Judicature Act, 1875, or under Rule 4 
 of this Order shall be sufficiently given by leaving with 
 him the copy of the writ of summons. 
 
 This is Rule 9 of Order IV., of the Rules of Court, drawn up in 1874, 
 under the Principal Act, "section 11 of the Supreme Court of Judicature 
 Act, 1875," being substituted for "section 35 of the Act of 1873," to adapt 
 the Rule to the present Act. 
 
 4. In particular Actions. 
 
 Eule 10. 
 The issue of a writ of summons in Probate actions 
 
 * Consolidated General Orders of the Court of Chancery, Order 1, (VI) 55. 
 t Ibid. J Veal's Practice, 6. See further Kotanda.
 
 HULKS OF COURT. 
 
 shall be preceded by the filing of an affidavit made by the 
 plaintiff or one of the plaintiffs in verification of the in- 
 dorsement on the writ. 
 
 This is Rule 10 of Order IV., of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This Rule is founded on Rule 68 of the Rules of 1862 of the Court of 
 Prohate : " No citation is to issue under seal of the Court, until an affidavit 
 in verification of the averments it contains has been filed in the Registry." 
 This is called " an affidavit to lead the citation." 
 
 Rule 11. 
 
 In Admiralty actions in rem no writ of summons shall 
 issue until an affidavit by the plaintiff or his agent has 
 been filed, and the following provisions complied with : 
 
 (a.} The affidavit shall state the name and descrip- 
 tion of the party on whose behalf the action is insti- 
 tuted, the nature of the claim, the name and nature 
 of the property to be arrested, and that the claim has 
 not been satisfied. 
 
 (5.) In an action of wages the affidavit shall state 
 the national character of the vessel proceeded against ; 
 and if against a foreign vessel, that notice of the 
 institution of the action has been given to the Consul 
 of the State to which the vessel belongs, if there be 
 one resident in London [a copy of the notice shall be 
 annexed to the affidavit^] 
 
 (c.) In an action of bottomry, the bottomry bond, 
 and if in a foreign language also a notarial translation 
 thereof, shall be produced for the inspection and 
 perusal of the Registrar, and a copy of the bond, or 
 of the translation thereof, certified to be correct, shall 
 be annexed to the affidavit. 
 
 (d.) In an action of distribution of salvage the 
 affidavit shall state the amount of salvage money 
 awarded or agreed to be accepted, and the name, 
 address, and description of the party holding the same.
 
 298 SUPKEME COURT OF JUDICATURE ACT, 1875. 
 
 (e.) The Court or Judge may in any case, if he 
 think fit, allow the writ of summons to issue although 
 the affidavit may not contain all the required particu- 
 lars. In a wages cause he may also waive the service 
 of the notice, and in case of bottomry the production 
 of the bond. 
 
 This is Rule 11 of Order IV. of the Rules of Court drawn up, in 1874, 
 under the Principal Act. 
 
 Subsection (a) is copied from Rule 9 of the Rules of the High Court of 
 Admiralty, made in pursuance of the 3 and 4 Viet., cc. 65 and 66, and 17 
 and 18 Viet., c. 78. Subsection (b) is copied from Rule 10 of the same 
 Rules, which, however, applies to "a cause of necessaries," as well as a 
 " cause of wages." The words in italics are part of the Rule in the origi- 
 nal, being connected with it by the word " and." 
 
 Subsection (c) is copied verbatim from Rule 1 1 of the same Rules. 
 
 Subsection (e) is copied from Rule 13 of the same Rules, " the Court or 
 Judge," being substituted for " the Registrar." The Rules in the origi- 
 nal apply to a warrant to arrest the property proceeded against ; in the 
 present Rule they are made applicable to the writ of summons. 
 
 As to subsection (d], see the remarks in "Williams and Bruce's Admi- 
 ralty Practice, pp. 128, 1832 (Edn. 1869). 
 
 Rule 12. 
 
 If, when any property is under arrest in Admiralty, 
 a second or subsequent action is instituted against the 
 same property, the solicitor in such second action may, 
 subject to the preceding rules, take out a writ of summons 
 in rem and cause a caveat against the release of the pro- 
 perty to be entered in the Caveat Release Book hereinafter 
 mentioned. 
 
 This is Rule 12 of Order IV. of the Rules of Court, drawn up, in 1874, 
 under the Principal Act. 
 
 Any person may commence a second or subsequent suit to enforce any 
 claim he may have against the property proceeded against in an action in 
 rem in the Court of Admiralty. He may, until his rights can be adjudi- 
 cated upon, prevent the release of the property under arrest. The 
 practice hitherto is laid down in Rule 53 of the Rules of the Court of 
 Admiralty : "A proctor in a cause, desiring to prevent the release of any 
 property under arrest, shall file in the Registry a prcecipe, and thereupon 
 a caveat against the release of the property shall bo entered in a book, to 
 be called the " Caveat Release Book." The taking out of a writ of sum- 
 mons appears to be substituted for filing a prcecipe in the Registry.
 
 RULES OF COURT. 299 
 
 ORDEE YI. 
 
 CONCURRENT WRITS. 
 
 Rule 1. 
 
 The plaintiff in any action may, at the time of or at 
 any time during twelve months after the issuing of the 
 original writ of summons, issue one or more concurrent 
 writ or writs, each concurrent writ to bear teste of the 
 same day as the original writ, and to lie marked with a 
 seal bearing the word " concurrent," and the date of 
 issuing the concurrent writ ; and such seal shall be im- 
 pressed upon the writ by the proper officer : Provided 
 always, that such concurrent writ or writs shall only be in 
 force for the period during which the original writ in such 
 action, shall be in force. 
 
 This is Rule! of Order V. of the Bules of Court, drawn up, in 1874, 
 under the Principal Act. 
 
 This Rule is copied verbatim from section 9 of the Common Law Pro- 
 cedure Act, 1852. 
 
 The form of the writ and indorsements will be the same as that of the 
 original writ and indorsements, except that the officer must be required to 
 seal the wAt with a seal " bearing the word ' concurrent ' on it." A con- 
 current writ must be issued within six months from the first issuing of 
 the original writ.* 
 
 The officer, it is suggested, should make an indorsement on the copy of 
 the original writ filed by him, of tho fact of the issuing of the con- 
 current writ.f 
 
 In addition to the ordinary case of there being two or three defendants, 
 concurrent writs are useful, and, indeed, often necessary, when it is not 
 known in which of different places the defendant is likely to bo met with, 
 or when it is doubtful whether he is at home or abroad. 
 
 Rule 2. 
 
 A writ for service within the jurisdiction may be 
 issued and marked as a concurrent writ with one for 
 service, or whereof notice in lieu of service is to be given, 
 out of the jurisdiction ; and a writ for service, or whereof 
 notice in lieu of service is to be given, out of the jurisdic- 
 
 * Coles v. Sherrard, 11 Ex., 482. 
 
 f By analogy to the indorsing of the pracipe for the original writ filed. 
 See Archbold's Practice, p. 55.
 
 300 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 tion may be issued and marked as a concurrent writ 
 with one for service within the jurisdiction. 
 
 This is "Rule 2 of Order V. of the Eules of Court drawn up, in 1874, 
 under the Principal Act. 
 
 This Rule is copied verbatim from section 22 of the Common Law Pro- 
 cedure Act, 1852, with the addition of the words, "and whereof notice, 
 in lieu of service, is to be given," which seem to have been accidentally 
 omitted from, that section. 
 
 As to notice in lieu of service, see s. 19 of the Common Law Procedure 
 Act, 1852, and Appendix (A), Part II., Nos. 2 and 3 to this Schedule. 
 
 ORDER VII. 
 
 DISCLOSURE BY SOLICITORS AND PLAINTIFFS. 
 
 Rule 1. 
 
 Every solicitor whose name shall be indorsed on any 
 writ of summons shall, on demand in writing made by 
 or on behalf of any defendant who has been served 
 therewith or has appeared thereto, declare forthwith 
 whether such writ has been issued by him or with his 
 authority or privity; and if such solicitor shall declare 
 that the writ was not issued by him or with his authority 
 or privity, all proceedings upon the same shall be stayed, 
 and no further proceedings shall be taken thereupon 
 without leave of the Court or a Judge. 
 
 This is Rule 1 of Order VI. of the Rules of Court drawn up in 1876, 
 under the Principal Act. 
 
 '.L'his Rule is copied verbatim from s. 7 of the Common Law Procedure 
 Act, 1852, with the useful addition of the words, "who has been served 
 therewith, and who has appeared thereto," after the word "defendant." 
 
 The defendant, upon making an affidavit of the facts can obtain an 
 order to stay the proceedings. 
 
 Rule 2. 
 
 When a writ is sued out by partners in the name of 
 their firm, the plaintiffs or their solicitors shall, on de- 
 mand in writing by or on behalf of any defendant, declare 
 forthwith the names and places of residence of all the per- 
 sons constituting the firm. And if the plaintiffs or their 
 solicitors shall fail to comply with such demand, all pro-
 
 RULES OF COURT. 301 
 
 ceedings in the action may, upon an application for that 
 purpose, be stayed upon such terms as the Court or a 
 Judge may direct. And when the names of the partners 
 are so declared, the action shall proceed in the same manner, 
 and the same consequences in all respects shall follow as if 
 they had been named as the plaintiffs in the writ. But all 
 proceedings shall, nevertheless, continue in the name of 
 the firm. 
 
 This is "Rule 2 of Order VI. of the Eules of Court drawn up in 1874, 
 under the Principal Act. 
 
 See as to actions against partners, Order IX., Bule 6 and Order XVI., 
 Rule 1 0. The present Rule contains a very useful new provision. (See 
 now the Registration of Firms Act, 1875.) 
 
 ORDER VIII. 
 
 RENEWAL OF WRIT. 
 
 Rule 1. 
 
 "No original writ of summons shall be in force for more 
 than twelve months from the day of the date thereof, in- 
 cluding the day of such date ; but if any defendant therein 
 named shall net have been served therewith, the plaintiff 
 may, before the expiration of the twelve months, apply to 
 a Judge, or the District Registrar, for leave to renew the 
 writ ; and the Judge or Registrar, if satisfied that reason- 
 able efforts have been made to serve such defendant, or for 
 other good reason, may order that the original or concurrent 
 writ of summons be renewed for six months from the date 
 of such renewal, and so from time to time during the 
 currency of the renewed writ. And the writ shall in such 
 case be renewed by being marked with a seal bearing the 
 date of the day, month, and year of such renewal ; such 
 seal to be provided and kept for that purpose at the proper 
 office, and to be impressed upon the writ by the proper 
 officer, upon delivery to him by the plaintiff or his solici- 
 tor of a memorandum in Form No. 5 in Appendix (A.),
 
 302 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Part I. ; and a writ of summons so renewed shall remain in 
 force and be available to prevent the operation of any 
 statute whereby the time for the commencement of the 
 action may be limited, and for all other purposes, from 
 the date of the issuing of the original writ of summons. 
 
 This is Eule 1 of Order VIII. of the Rules drawn up in 1874 under 
 the Principal Act, "Appendix A" being substituted for " Schedule (A)" 
 to adapt the Rule to the present Act. This Rule is founded upon s. 11 of 
 the Common Law Procedure Act, 1852, hut the provisions of that section 
 have been considerably modified. 
 
 A writ of summons under s. 11 of the Common Law Procedure Act, 
 1852, was only in force for six months from the day of its date. This 
 Rule says that twelve months shall be the maximum time during which it 
 shall remain in force. A check, on the other hand, is put upon the 
 renewal of writs as of course. The ceremony of an application to a 
 Judge (or District Registrar) is interposed. Instead of the plaintiff 
 delivering to the proper officer a pracipe in such form as was required to 
 be delivered for obtaining an alias writ, he is to deliver to that functionary 
 a memorandum in Form No. 5 in Appendix (A) to this Schedule (which 
 see.) The writ will be re-sealed with a "renewal" seal, when this 
 " renewal " memorandum has been delivered, the renewed writ will, as 
 heretofore, itself require renewal if the defendant is not served within six 
 calendar months from the date of renewal.* 
 
 Eule 2. 
 
 The production of a writ of summons purporting to 
 be marked with the seal of the Court, showing the same 
 to have been renewed in manner aforesaid shall be suffi- 
 cient evidence of its having been so renewed, and of the 
 commencement of the action as of the first date of such 
 renewed writ for all purposes. 
 
 This is Rule 2 of Order YH. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This Rule is copied verbatim from s. 1 3 of the Common Law Procedure 
 Act, 1852. The defendant is at liberty to rebut the evidence afforded by 
 the production of the writ, so that the words, "primd facie," must bo 
 considered as inserted after the word " sufficient." t 
 
 * See Day's Common Law Procedure Acts, p. 38. "^ 
 
 t Day's Common Law Procedure Acts, citing BarraclougK v. Greenhough, 
 
 L. R., 2, Q. B., 612, and Fisher v. Cox, 16 L. T., N. S. 397 Q. B., E. T., 
 
 1867.
 
 RULES OF COURT. 303 
 
 ORDER IX. 
 SERVICE OF WRIT. 
 1. Mode of Service. 
 
 Rule 1. 
 
 No service of writ shall be required when the defendant, 
 by his solicitor, agrees to accept service, and enters an 
 appearance. 
 
 This Rule is a re-enactment of Rule 4 of the Principal Act. 
 
 A,s a general rule, there is no equivalent for personal service, except an 
 undertaking by an attorney to appear.* By Reg. Gen. Hil. T., 1853, 
 Rule 3, an attorney not entering an appearance in pursuance of his under- 
 taking, is liable to an attachment. That rule is now Order XII., 
 Rule 14 of this Schedule. See Jacob v. Mag/nay, L. J. 2, Q. B. 93, Morris 
 v. James, 6 Dowl. 514. 
 
 The -following is the form of undertaking given by Mr. Chitty,t as 
 usually indorsed in this case on the writ of summons : " I undertake to 
 appear for the within-named defendant, according to the exigency of the 
 within writ. A. A. The day of , 1875." The form 
 
 of affidavit for obtaining the attachment may be framed upon those given 
 by Chitty, p. 81, Book XII.J of his "Forms." 
 
 Rule 2. 
 
 When service is required, the writ shall, wherever it is 
 practicable, be served in the manner in which personal 
 service is now made, but if it be made to appear to the 
 Court or to a Judge that the plaintiff is from any cause 
 unable to effect prompt personal service, the Court or Judge 
 may make such order for substituted or other service, or for 
 the substitution of notice for service, as may seem just. 
 
 This Rule is a re-enactment of Rule 5 of the Principal Act. 
 
 See Order X., as to the necessity for an affidavit in support of an appli- 
 cation for an order for " substituted or other service," or " for the sub- 
 stitution of notice for service " under this Rule. 
 
 " The manner in which personal service is now made." The question 
 whether personal service has been effected must, in any particular in- 
 stance, depend upon its peculiar facts. It is not necessary to leave the 
 copy of the writ in the actual corporal possession of the defendant, [| for, 
 
 * Common Law Procedure Acts, p. 41 ; Chitty's, Forms, p. 59, n. (a). 
 
 t Forms of Practical Proceedings, p. 59. 
 
 t Ib. p. 884. See p. 25. 
 
 Heath v. White, 2 D. & L. 40. 
 
 It Digby v. Thompson. I Dowl. p. 363.
 
 304 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 whether the process server touches him and puts it in his hand, is imma- 
 terial. Personal service may be where you see a person and bring the 
 process to his notice.* and if after your informing the defendant of the 
 nature of the process, and tendering him the copy, he refuses to receive it, 
 then placing it on his person,! or throwing it down in his presence,^ 
 would be sufficient service. 
 
 Substituted service has long been permitted in the practice of the 
 Court of Chancery, where the question of what is sufficient service 
 arises more frequently than at Common Law, on account of the 
 number of defendants to every suit. The principle upon which that 
 Court has acted in directing substituted service is clearly enunciated by 
 Lord Cranworth in the case of Hope v. If ope. His Lordship there 
 observed that where there is an agent in this country managing the affairs 
 of a defendant who is abroad, and regularly communicating upon his 
 affairs, or where he has an agent here specially managing the particular 
 matter involved in the suit, the Court has felt that it might safely allow 
 service upon the agent to be deemed good service abroad, because the in- 
 ference was irresistible, that service so made was service on a person 
 either impliedly authorised to accept that particular service, or who would 
 certainly communicate the process so served to the party who was not in 
 this country to receive it himself. The object of all service was, of 
 course, only to give notice to the party on whom it was made ; so that he 
 might be made aware of and able to resist that which was sought against 
 him, and when that had been substantially done, so that the Court may 
 feel perfectly confidentthat service had reached him, every thing had been 
 done that was required. 
 
 2. On particular Defendants. 
 
 Rule 3. 
 
 When husband and wife are both defendants to the 
 action, service on the husband shall be deemed good service 
 on the wife ; but the Court or a Judge may order that the 
 wife shall be served with or without service on the 
 husband. 
 
 This is Rule 1, of Order VIII of the Rules drawn up, in 1874, under 
 the Principal Act. 
 
 " Where the writ," says Mr. Archbold,|| '' is against husband and wifo, 
 service on the husband will in general be sufficient." This is the practice 
 at Common Law. The practice in Chancery is, so far, similar. " ^Tien- 
 husband and wife," says Mr. Daniel, "are defendants, ordinary service 
 upon the husband alone is sufficient." But he adds : " If the husband is 
 abroad, and cannot be served, and the subject matter of the suit arises in 
 
 * Thompson v. Pheney, 1 Dowl., 441. 
 t Hell v. Vincent, 7 D. & R. 233. 
 J See per Paterson, J., 1 Dowl., 443. 
 4 De G. M. & G. 328, affirming S. C., 19 Beav, 257. 
 || 1 Archbold's Practice, 199, reciting Buncumbe v. Lore, Barnes C ; 
 Collins v. Shapland, Barnes 462.
 
 RULES OF COURT. 305 
 
 right of the wife, the plaintiff" may " obtain on exparte motion, supported 
 by affidavit, an order that service upon her alone, in the usual manner, 
 
 VQll Tin QiiffimiiTlf '*'* 
 
 shall be 
 
 Rule 4. 
 
 When an infant is a defendant to the action, service 
 on his or her father or guardian, or, if none, then upon the 
 person with whom the infant resides or under whose care 
 he or she is, shall, unless the Court or Judge otherwise 
 orders, be deemed good service on the infant; provided 
 that the Court or Judge may order that service made or 
 to be made on the infant shall be deemed good service. 
 
 This is Rule 2 of Order VIII. of the Rules drawn up in 1874 under 
 the Principal Act. 
 
 At Common Law an infant cannot be served personally. The service 
 must be upon his guardian. 
 
 Service on the father or guardian of the infant, and upon the person 
 with whom or under whose care the infant is, is a method of serving 
 infants mentioned in Order VII. , Rule 3, of the Consolidated Orders of the 
 Court of Chancery. 
 
 Under that Order service at the dwelling of the mother of the infant, 
 the father being dead, and she married again, has been held to be sufficient,^ 
 but not service upon the infant's uncle J 
 
 Leave may be granted, in a suit of Chancery, to personally serve infants 
 out of the jurisdiction, and upon such service, guardians at litem will be 
 appointed. 
 
 Ordinary service in Chancery upon an infant defendant is effected in the 
 same manner as upon an adult. 
 
 Rule 5. 
 
 When a lunatic or person of unsound mind not so 
 found by inquisition is a defendant to the action, service 
 on the committee of the lunatic or on the person with 
 whom the person of unsound mind resides or under whose 
 care he or she is, shall, unless the Court or Judge other- 
 wise orders, be deemed good service on such defendant. 
 This is Rule 3 of Order VIII. of the Rules of Court, drawn up, in 1874, 
 
 * Daniel's Chancery Practice, 368. 
 t Hitch v. Wells, 8 Beav. 576 ; 
 J Blackmore v. Howett, 20 L. J., 101. 
 Daniel's Chancery Practice, 368, 376. 
 
 20
 
 306 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 under the Principal Act. This is a beneficial charge in the law of service. 
 Prior to this enactment it was held at Common Law that personal service 
 was necessary in the case of an action against a lunatic. The Courts at 
 Westminster Hall on a literal interpretation of s. 17 of the Common Law 
 Procedure Act have held that, as the lunatic cannot know of the writ or 
 evade its service, they could not give the plaintiff leave to proceed, in the 
 case of an action against a lunatic, under that section. The managers of 
 the lunatic asylums were ahle to keep the process server at hay, in the case 
 of Williamson v. Maggs* on the authority of Holmes v. Service,^ decided 
 in 1854. 
 
 Order VII., Rule 3 of the Consolidated Orders of the Court of Chancery 
 mentions service upon the person with whom or under whose care the 
 defendant is, as a method of serving persons of unsound mind. 
 
 3. On Partners and other Bodies. 
 
 Rule 6. 
 
 Where partners are sued in the name of. their firm, 
 the writ shall be served either upon any one or more of 
 the partners, or at the principal place, Within the jurisdic- 
 tion, of the business of the partnership, upon any person 
 having at the time of service the control or management 
 of the partnership business there ; and, subject to the Rules 
 hereinafter contained, such service shall be deemed good 
 service upon the firm. 
 
 This is Rule 4 of Order VIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 " Where parties are sued in the name of their firms." By Order XVI., 
 Rule 10, " any two or more persons, heing liahle as co-partners, may 
 he sued in the name of their respective firms." 
 
 There are no special provisions relative to the service of partners at the 
 Common Law. The rule that where there are more defendants than one, 
 each must he served in the same way, as if he were sued alone, applies. 
 It has been expressly decidedj that service on one of two (or more) 
 partners is not, in the view of a Court of Equity, good service on the 
 other. But it has been alsc expressly decided that where substituted 
 service is allowed, service on one of two (or more) partners is, in the view 
 of a Court of Equity, sufficient. It will be seen that service may be 
 effected upon a firm, not merely by serving any one of the partners, but by 
 serving " any person having the control or management of the partnership's- 
 business," provided that the service be upon the latter at the principal 
 place (within the jurisdiction) of the business of the partnership. 
 
 28L. J. Ex. 5 f!5 C.B. 293. 
 
 J Young v. Goodson, 2 Russ., 255. 
 
 Carrington v. C'antillon, Bunbury, 187; Coles v. Gurncy, 1 Mad. 187; 
 v. Forbes. 2 Beav., 503.
 
 RULES OF COURT. 307 
 
 The present rule effects a very salutary improvement of the law. 
 
 Subject to the rules hereinafter contained." This, probably, refers more 
 particularly to the next rule, which applies to " any body or number of 
 persons, whether corporate or otherwise," and is, therefore, to some extent, 
 in pari materia with the present Rule.- 
 
 Rule 7. 
 
 Whenever by any statute, provision is made for ser- 
 vice of any writ of summons, bill, petition, or other pro- 
 cess, upon any corporation, or upon any hundred, or the 
 inhabitants of any place, or any society or fellowship, or 
 any body or number of persons, whether corporate or other- 
 wise, every writ of summons may be served in the manner 
 so provided. 
 
 This is Rule 5 of Order VIII. of the Rules of Court, drawn up in 1874 
 under the Principal Act. 
 
 By section 16 of the Common Law Procedure Act, 1852, every writ of 
 summons issued against a corporation aggregate may be served on the 
 Mayor, or other head officer, or on the Town-Clerk, Clerk, Treasurer, or 
 Secretary of such corporation ; and every such writ issued against the 
 inhabitants of a hundred, or other like district, may be served on the 
 High Constables thereof, or any one of the High Constables thereof ; and 
 every such writ issued against the inhabitants of any county of any city 
 or town, or the inhabitants of any franchise, liberty, city, town, or 
 place not being part of a hundred, or other like district, on some peace 
 officer thereof. The expression, " corporation," in this enactment does 
 not apply to a foreign corporation.* But a foreign corporation carrying 
 on a branch, business at an office in England may be sued in our Courts, 
 and service on the head officer of the branch, business under this section 
 will be good.f 
 
 The statute 7 Wm. 4, and 1 Viet., c. 73, s. 26, provides, with reference 
 to trading companies, or bodies of persons associated together for banking 
 purposes, and established by letters patent under the Act, that service of 
 any suit on the clerkj of the company or body, or by leaving the writ at 
 the head office for the time being of the Company or body, or in case 
 such clerk shall not be found or known, the service of such writ on any 
 agent or officer employed by the Company or body, by leaving the same 
 at the usual place of abode of such agent or officer, shall be deemed 
 good and sufficient service on the Company or body. 
 
 By the 132nd Section of Companies' Clauses Consolidation Act (8 & 9 
 Viet. c. 16), any summons or writ requiring to be served upon a Company 
 
 * Ingate v. Austrian Lloyds, 4 C.B., N.S. 1704. 
 t Newby v. Van Oppcn, $c., Co., L.R. 7 Q.B. 293. 
 
 J The word " clerk " here means chief clerk, not a mere clerk employed 
 under a secretary or other clerk. Walton v. Universal Salvage Co., 16 M.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 to which the Act applies may be served by being left at or transmitted 
 through the post directed to the principal office* of the Company or one 
 of their principal offices where there shall be more than one, or being 
 given personally to the secretary,! or in case there be no secretary, then 
 by being given to any one director of the Company. The Railways Con* 
 solidation Clauses Act (8 & 9 Viet. c. 20), s. 138, contains a similar provi- 
 sion as to service upon the companies to which it applies. 
 
 By the Companies Act, 1862, section 62, any summons required to be 
 served upon the Company under it may be served by leaving the summons 
 or sending it through the Post in a prepaid letter addressed to the com* 
 pany at their registered office. J 
 
 4. In particular Actions. 
 
 Rule 8, 
 
 Service of a writ of summons in an action to recover 
 land may, in case of vacant possession, when it cannot 
 otherwise he effected, be made by posting a copy of the 
 writ upon the door of the dwelling-house or other con- 
 spicuous part of the property. 
 
 This is Rule 6 of Order VIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This Rule is copied from Section 170 of the Common Law Procedure 
 Act, 1852, with the addition of the important qualification, " When it can- 
 not be otherwise effected.'' 
 
 Where a landlord or lessor proceeds for the recovery of a dwelling-house 
 and other premises demised by one lease, if the dwelling-house is not occu- 
 pied and the rest of the premises is in the occupation of a tenant, service 
 of the writ of ejectment may be effected by personally serving the tenant 
 with a copy and affixing another on the front door of the house. Lord 
 Clinton v. Wales, 2 Jur. N. S., 1096, Ex., M. T., 1856. 
 
 Rule 9. 
 
 In Admiralty actions in rem, the writ shall be served 
 by the Marshal or his substitutes, whether the property 
 to be arrested be situate within the Port of London or 
 elsewhere within the jurisdiction of the Court, and the 
 solicitor issuing the writ shall, within six days from the 
 service thereof, file the same in the registry from which the 
 writ issued. 
 
 * See Garton v. the Great Western Railway Company, E. B.and E., 837 S 
 t See Doe d. JBayes v. Roe r 16 M. and W., 142 ; Doe d. Bromley v. Roe, 
 
 8 Dowl., 858. 
 J As to the time of posting the summons and proof of service of it 
 
 through the post, see section 63.
 
 RULES OF COURT. 309 
 
 This is Rule 7 of Order VIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This Rule is copied from Rule 14 of the Rules of the Court of Admiralty, 
 " writ" being substituted for " wan-ant,"' and " solicitor" for " proctor," 
 and the words " from which the writ issued" being added at the end of 
 the Rule. 
 
 Rule 10. 
 
 In Admiralty actions in rem service of a writ of sum- 
 mons against ship, freight, or cargo on board is to be 
 effected by the Marshal or his officer nailing or affixing 
 the original writ for a short time on the mainmast or 
 on the single mast of the vessel, and, on taking off* the 
 process, leaving a true copy of it nailed or fixed in its 
 place. 
 
 This is Rule 8 of Order VIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 " The service," observe the authors of " Admiralty Practice,"* writing 
 with regard to Admiralty actions in rem, " is effected with respect to a 
 ship, her tackle and furniture by affixing the original warrant for a short 
 time on the main mast or single mast of the ship and by leaving a copy 
 thereof annexed in its stead. If the cargo be on board the ship and is 
 proceeded against specifically, and named in the warrant, or if it is not 
 named in the warrant, but is proceeded against in respect of freight due 
 for the transportation thereof, the arrest of the ship arrests the cargo." 
 
 Rule 11. 
 
 9. If the cargo has been landed or transhipped, service 
 of the writ of summons to arrest the cargo and freight 
 shall be effected by placing the writ for a short time on 
 the cargo, and, on taking off" the process, by leaving a true 
 copy upon it, 
 
 This is Rule 9 of Order VIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 " If the cargo," observe the authors of "Admiralty Practic,"t "has 
 been landed and warehoused, a separate arrest of it must be made." 
 
 Rule 12. 
 If the cargo be in the custody of a person who will 
 
 * Williams and Bruce on Admiralty Practice, p.p. 193, 194. 
 t /*., p. 194.
 
 310 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 not permit access to it, service of the writ may be made 
 upon the custodian. 
 
 This is Eulc 10 of Order VIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 " If the Marshal or his substitutes," observe the authors of Admiralty 
 Practice*, " are denied access to the warehouse where the cargo is, the 
 arrest may be made by showing the original warrant to the warehouse 
 keeper and leaving a copy with him." 
 
 Generally. 
 Rule 13. 
 
 11. The person serving a writ of summons shall, within 
 three days at most after such service, indorse on the writ 
 the day of the month and week of the service thereof, 
 otherwise the plaintiff shall not be at liberty, in case of 
 non-appearance, to proceed by default ; and every affidavit 
 of service of such writ shall mention the day on which 
 such indorsement was made. 
 
 This is Rule 1 1 of Order VIII. of the Rules of Court drawn up in 1874, 
 under the Principal Act- 
 
 This Rule is copied from 8. 15 of the Common Law Procedure Act, 
 1852, the words " and he is hereby required," being omitted after the 
 word " shall" and "in default," substituted for " under this Act." 
 
 This indorsement may be signed by a marksman, but service should 
 not be effected by a marksmanf. If the indorsement is not made, the 
 plaintiff's attorney may be liable for such negligence when the plaintiff 
 has been damaged by it. J The affidavit should she v that the writs and 
 indorsements are regular, and a copy of the writ should be annexed. 
 
 The affidavit cannot be made before the plaintiff's attorney or his clerk, 
 not before the attorney is the country, if his agent in town is the attorney 
 on the record.H It may, of course, subject to these remarks, be sworn 
 before a commissioner for taking affidavits. 
 
 ORDER X. 
 
 SUBSTITUTED SERVICE. 
 
 Every application to the Court or a Judge, under Order 
 
 * Williams and Bruce's Admiralty Practice, p. 194. 
 t Baker v. Coghlan 7 C. B. 131. 
 j Curlewis v. Broad, 1 H. & C., 322. 
 WaJceley v. Teesdale, 2 L. M. & P., 85. 
 
 H In Ee Gray, L.J. 21, C.B. 380. Reg. Gen. Hil. T. 1853, Rules 
 142 and 143.
 
 RULES OF COURT. 311 
 
 IX., Rule 2, for an order for substituted or other service, 
 or for the substitution of notice for service, shall be sup- 
 ported by an affidavit setting forth the grounds upon 
 which the application is made. 
 
 This is Order IX. of the Rules of Court drawn up in 1874 under the 
 Principal Act, the words " under Order IX., Rule 2 " being substituted 
 for "under Rule 5 of the Schedule to the said Act," in order to adapt the 
 order to the present Act. 
 
 See, as to substituted service, Order IX., Rule 2, supra, and the note 
 thereto. 
 
 " The application," says Mr. Daniel,* " is made by ex parte motion, t 
 and must be supported by an affidavit showing what efforts have been 
 made to serve the defendant, and that all practicable means of doing so 
 have been exhausted, J and how substituted service is proposed to be 
 effected." 
 
 The affidavit must also shew " means of knowledge." 
 
 ORDER XI. 
 
 SERVICE OUT OF THE JURISDICTION. 
 
 Rule I. 
 
 Service out of the jurisdiction of a writ of summons 
 or notice of a writ of summons may be allowed by the 
 Court or a Judge whenever the whole or any part of the 
 subject-matter of the action is land or stock, or other 
 property situate within the jurisdiction, 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, dissolved, 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 en- 
 tered into within the jurisdiction, and whenever there has 
 been a breach within the jurisdiction of any contract 
 wherever made, and whenever any act or thing bought to 
 
 * Daniel's Chancery Practice, 37t). 
 
 t Reedv. Barton, 4 W. R. 793, V. C. W. ; Re Boaer, 3 Jur. N. S. 
 930, V. C. W. 
 
 I Firth v. Bush, 9 Jur. N. S. 431, V. C. K. 
 
 See the form, in the Vol. of Forms, accompanying Daniel's Chan- 
 cery Practice, No. 286.
 
 312 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 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. 
 
 This is Rule 1 of Order X. of the Roles of Court drawn up in 1874 
 under the Principal Act. The provisions relative to " service out of 
 jurisdiction " in the Principal Act will be found in Rule 6 of that Act. 
 
 This Rule is very carefully framed with a view to extending as widely 
 as possible the right of serving a defendant out of the jurisdiction, a ques- 
 tion which has been greatly clouded by the conflicting decisions of the 
 Courts and Judges of Westminster Hall. 
 
 The language of the 1 8th section of the Common Law Procedure Act* 
 1852, on which these conflicting decisions arose, is as follows: ' It shall 
 be lawful for the Court or a Judge to direct that the plaintiff shall be at 
 liberty to proceed, upon being satisfied that there is a cause of action, 
 which arose within the jurisdiction, or in respect of the breach of a 
 contract made within the jurisdiction." 
 
 The words, " cause of action," have been held by the Court of Queen's 
 Bench to mean, as they termed it, the whole cause of action, including, in 
 the case of a contract, the formation of the contract and the breach of 
 the contract. Unless the contract were formed and the breach of it 
 occurred within the jurisdiction, the Court of Queen's Bench refused* to 
 allow the plaintiff to proceed under the 18th section of the Common Law 
 Procedure Act, 1854. 
 
 The Court of Exchequer held the same opinion in one case,t decided 
 prior to Allhusen v. Malgarejo, and which seems to have misled the Court 
 of Queen's Bench in that case; but the Court of Exchequer have, in 
 recent cases,J practically overruled their former decision, though strug- 
 gling to distinsruish it. 
 
 The Court of Common Pleas has been consistent throughout in adher- 
 ing to the liberal interpretation of the section, that, if the breach of the 
 contract occurred within the jurisdiction it mattered not where the 
 contract was made. It is evident that unless this construction be put 
 upon the section, the words " or in respect of a breach of a contract 
 .made within the jurisdiction" are mere surplusage. "The cause of 
 action " is evidently a synonym for " the breach of the contract or the 
 tort." 
 
 The common sense view of the Court of Common Pleas, and, in its 
 later mood, of the Court of Exchequer, has, it will be seen, been adopted 
 by the Legislature. The perilous expression, " cause of action," has been 
 carefully eschewed, and the cases in which the Court or a Judge will allow 
 service out of the jurisdiction are logically classed under three heads : 
 First, " Whenever the contract which is sought to be enforced or rescinded, 
 dissolved, annulled, or otherwise affected, or for the breach whereof 
 damages or other relief are or is demanded, was made or entered into 
 
 * Allhusen v. Malgarejo^ L. R. 3 Q. B. 340 ; Cherry v. Thompson, 7 
 W. N. 1872, p. 122, T. T. 
 
 t Sichel v. Sorch, 2 H. and C. 954. 
 
 J Durham v. Spence, L. R. 6, Ex. 46 (Kelly, C.B., however, dissen- 
 tiente),Arrou>smithv. Chandler, 52 L, T., 270, Ex., 2 Feb., 1872. (Bram- 
 well, B., tried to distinguish Sichel v. Sorch).
 
 RULES OF COURT. 313 
 
 within the jurisdiction." Secondly, " Whenever there has been a breach 
 within the jurisdiction of any contract, wherever made." Thirdly,- 
 " Wlienever 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." It will be seen that the first class cor- 
 responds with the second class mentioned in s. 18 of the Common Law 
 Procedure Act, 1852; The third class has always been held to be within 
 the first class mentioned in the 18th section. The second class clears up the 
 doubts as to whether contracts entered into abroad fall under the first class 
 of the 18th section, or do not come within the scope of the 18th section 
 at all. 
 
 The adoption of the more liberal construction will be a great boon to 
 the mercantile community in these days, when every country in the world 
 is the scene of the formation of contracts by English merchants with 
 foreigners and British subjects, resident abroad. The salutary declara- 
 tion of the law by the present rule (for it hardly can be called a new 
 enactment) is well-timed, as the Court of Queen's Bench has recently* 
 announced its intention of adhering to its narrow construction of the 18th 
 section. 
 
 The definition of the " subject matter of the action " would seem to be 
 taken from the Foreign Process Acts, relative to suits in Chancery 
 (2 and 3 Wm. IV., C; 33, ss, 1, 4 and 5 Wm. IV. c. 82, s. 1), only 
 enlarged, t It forms an important qualification to the second class of cases 
 mentioned in this rule. Although the contract may be formed out of the 
 jurisdiction, the subject matter of the action must lie within it; 
 
 It has not been necessary, in the case of an order for service out of the 
 jurisdiction in the Court of Chancery, to show, by affidavit, that the cir- 
 cumstances were such as to warrant the order. The Court may look at the 
 pleadings for that purpose, J and, if necessary, may go into the merits of 
 the case, it being always in the discretion of the Court whether to grant 
 or refuse the application, but it acts on a primd facie case being made out. IT 
 The plaintiff takes the order at his own risk. || 
 
 It would seem that the j urisdiction of the Chancery Division of the 
 Supreme Court to grant orders sanctioning service out of the jurisdiction 
 will be somewhat narrowed by the present Kule. 
 
 Rule 2, 
 
 In Probate actions service of a writ of summons or 
 notice of a writ of summons may, by leave of the Court or 
 Judge, be allowed out ot the jurisdiction. 
 
 * Cherry v. Thompson, 7 W. N. 1872, p. 122, T. T. 
 
 t The word, " property," has been added, and it is very wide in its 
 signification. 
 
 J Bknkinsopp v. Blenkimopp, 8 Beav. 61 ; Maclean v. Datvson, 48 D. J. & 
 J. 150. 
 
 Lewis v. Baldwin, 11 Beav. 153, 158 ; Whitmore n. Ryan, 4 Hare, 612, 
 617 ; Innes v. Mitchell, 4 Drew. 141. 1 De G. & J., 423 ; Maclean v. Daw- 
 eon, ubi supra. 
 
 1T Meikham v. Campbell, 24 Beav. 100 ; Maclean v. Dawson, ubi supra. 
 Brooke v. Morrison, 32 Beav. 652.
 
 314 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 This is Rule 2 of Order X. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 The 19th Rule of the Rules and Orders of the Court of Probate in 
 contentious business provides that, " citations may be served upon parties 
 resident out of Great Britain and Ireland, by the insertion of the same or 
 of an abstract thereof, settled and signed by one of the Registrars, as an 
 advertisement, in such of the morning and evening London newspapers, 
 and, if necessary, in such local newspapers, at such intervals as the 
 Judge or a Registrar may direct, provided that in any case the Jud-ge or a 
 Registrar may direct a citation to be served personally. If the party cited 
 be abroad, having an agent resident in England, such agent must be 
 served with a true copy of the citation." 
 
 Rule 3. 
 
 Every application for an order for leave to serve such 
 writ or notice on a defendant out of the jurisdiction 
 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. 
 
 This is Rule 3 of Order X. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is founded on the Chancery Practice. By Order X., Rule 7, 
 subsection 1, of the Consoli dated Orderof the Court of Chancery, the 
 Court upon application supported by such evidence as shall satisfy the 
 Court in what place or country the defendant is, may order that a copy of 
 the Bill may be served on him there or within such limits as the Court 
 shall t.hinTf fit to direct. 
 
 It is now established that, under this order, the Court of Chancery may 
 direct service out of the jurisdiction in any suit whatever.* 
 
 Rule 4. 
 
 Any order giving leave to effect such service or give 
 euch notice shall limit a time after such service or notice 
 within which such defendant is to enter an appearance, 
 such time to depend on the place or country where or 
 within which the writ is to be served or the notice given. 
 
 This is Rule 4 of Order X. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is also founded on the Chancery Practice. It is copied 
 verbatim from Order X., Rule 7, subsection (2), of the Consolidated Orders 
 of the Court of Chancery. 
 
 * See the cases collected in note (o) p. 375 ot Daniel's Chancery Practice.
 
 RULES OF COURT. 315 
 
 Rule 5. 
 
 Notice in lieu of service shall be given in the manner 
 in which writs of summons are served. 
 
 This is Rule 5 of Order X. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 Presumably, notice in lieu of service, is confined to the case of actions 
 against foreigners residing out of the jurisdiction, pursuant to section 19 
 of the Common Law Procedure Act, 1852.* 
 
 ORDER XII, 
 
 APPEARANCE. 
 
 Rule 1. 
 
 Except in the cases otherwise provided for by these 
 rules a defendant shall ejiter his appearance in London. 
 
 This is Rule 1 of Order XII. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 " London" it is to he supposed, here includes Middlesex. 
 
 "Except in the cases otherwise provided for." Thjs exception relates 
 to appearances in District Registers, as to which see the Rules which follow. 
 
 Rule 2. 
 
 If any defendant to a writ issued in a District Registry 
 resides or carries on business within the district, he shall 
 appear in the District Registry. 
 
 This is Rule 2 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 As to the issuing of writs from District Registries, see section 64 of the 
 Principal Act, and Order V., Rule 1, and Order XXXV. of the present 
 Schedule. 
 
 It will be perceived that the present Rule is imperative, not allowing 
 the defendant any option as to the place in which he is to enter an 
 appearance. The course which he may take, " as of right," but only after 
 appearance, to remove the action to London is prescribed by Order XXXV., 
 Rules 11-14. 
 
 Rule 3. 
 
 If any defendant neither resides jior carries on business 
 in the district, he may appear either ift the District Registry 
 or in London. 
 
 * But this is nowhere so stated in the present Act, or in the Principal Act.
 
 316 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 This is Rule 3 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 In this case the defendant has the option of selecting the place in which 
 he shall enter an appearance. He need not wait till after appearance to 
 show his preference for London ; but may show it at once by entering an 
 appearance in London. 
 
 Rule 4. 
 
 If a sole defendant appears, or all the defendants ap- 
 pear in the District Registry, or if all the defendants, who 
 appear, appear in the District Registry and the others make 
 default in appearance, then, subject to the power of re- 
 moval hereinafter provided, the action shall proceed in 
 the District Registry. 
 
 This is Rule 4 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is imperative " the action shall proceed in the District 
 Registry." 
 
 "Subject to the power of removal hereinafter provided," i.e., by Order 
 XXXV., Rules 11-14. 
 
 Rule 5. 
 
 If the defendant appears, or any of the defendants 
 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 substantial cause to interfere in the 
 conduct of the action, such Court or Judge may order that 
 the action may proceed in the District Registry notwith- 
 standing tsuch appearance in London. 
 
 This is Rule 5 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 There is a power of applying for the removal of an action from London 
 to a District Registry, under Order XXXV., Rule 13, infra. 
 
 Rule 6. 
 
 A defendant shall enter his appearance to a writ of 
 summons by delivering to the proper officer a memorandum 
 in writing dated on the day of the delivering the same, and
 
 RULES OF COURT. 317 
 
 containing the name of the defendant's solicitor, or stating 
 that the defendant defends in person. A defendant who 
 appears elsewhere than where the writ is issued shall on 
 the same day give notice to the plaintiff 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. 
 
 The first clause of this Rule is Eulo 6 of Order XI. of the Rules of 
 Court, drawn up in 1874, under the Principal Act. 
 
 The first clause of this Rule is founded on s. 31 of the Common Law 
 Procedure Act, 1852. The form of the memorandum is given in that 
 section. The form of the memorandum mentioned in the present Rule, is 
 given in Appendix (A), Part I., No. 6. (See Rule 10 of this Order.) 
 
 The memorandum may be delivered by a third person on the defen- 
 dant's behalf, though such third person is not an attorney. Oake v. 
 Moorecroft, L.R. 5 Q. B. 76. 
 
 Rule 7. 
 
 The solicitor of a defendant appearing by a solicitor 
 shall state in such memorandum his place of business, 
 and, if the appearance is entered in the London office, a 
 place, to be called his " address for service," which shall not 
 be more than three miles from Temple Bar, and, if the 
 appearance is entered in a District Registry, a place, to be 
 called his " address for service," which shall be within the 
 district. 
 
 This is Rule 7 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 Rule 8. 
 
 A defendant appearing in person shall state in such 
 memorandum his address, and, if the appearance is entered 
 in the London office, a place, to be called his " address for 
 service," which shall not be more then three miles from 
 Temple Bar, and, if the appearance is entered in a District 
 Registry, a place, to be called his " address for service," 
 which shall be within the district. 
 
 This is Rule 8 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act.
 
 318 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 See as to the subject-matter of this Rule, s. 30 of the Common Law 
 Procedure Act, 1852, and Rule 166 of the Reg. Gen., Hil. T., 1853. See 
 also Order IV., Rule 2, supra, and the note thereto. The indorsement 
 appears to he substituted for the entry in a book. 
 
 Rule 9. 
 
 If the memorandum does not contain such address, 
 it shall not be received ; and if any such address shall be 
 illusory or fictitious, the appearance may be set aside by 
 the Court or a Judge, on the application of the plaintiff. 
 
 This is Rule 9 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is copied from s. 30 of the Common- Law Procedure Act, 
 1852, the words " on the application of the plaintiff," being added. 
 
 Rule 10. 
 
 The Memorandum of Appearance shall be in the Form 
 No. 6, Appendix (A.), Part I., with such variations as the 
 circumstances of the case may require. 
 
 This is Rule 10 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act, the words " Appendix (A.)" being substituted 
 for " Schedule (A.)" in order to adapt the Rule to the Present Act. 
 
 The analogous form is given in s. 31 of the Common Law Procedure 
 Act, 1 852. It has been laid down* that that Act imperatively requires that 
 the form given in the 31st section, or one to the like effect, shall be used. 
 The present Rule admits of " such variations as the circumstances of the 
 case may require" a somewhat loose phrase. 
 
 * The whole style of the new form is different from the old appearance- 
 piece. It is in effect a prtecipe to the officer to enter an appearance, which 
 by the next Rule, the officer is enjoined to do. A reference' to the forms 
 accompanying Daniel's Chancery Practice! will show that this new kind 
 of memorandum is borrowed from the practice of the Court of Chancery. 
 Nothing is said about filing it, or giving notice of it. (See Notanda.) 
 
 Rule 11. 
 
 Upon receipt of a Memorandum of Appearance, the 
 officer shall forthwith enter the appearance in the cause 
 book. 
 
 This is Rule 11 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 Per Pollock C.B., 4 D. & L. 297. t No. 484.
 
 RULES OF COURT. 319 
 
 See note to Order ^., Rule 8, as to tile additional labour -which this 
 Rule will involve. 
 
 The pracipe to enter an appearance is, in Chancery Practice* " left at 
 the seat of the Record and Writ Clerk, to whose division the cause is 
 attached."* 
 
 The cause-book is the same as that previously referred to in Order V., 
 Rule 8. See the note to that Rule, with regard to the. inconvenience of 
 the introduction of this practice into Common Law proceedings^ 
 
 Rule 12. 
 
 Where partners are sued in the name of their firm, 
 they shall appear individually in their own names. But all 
 subsequent proceedings shall; nevertheless, continue in the 
 name of the firm. 
 
 This is Rule 12 of Order XL of the Rules of Court, drawn up in 1874, 
 under the Principal Act (See Rule 11 of the Principal Act). 
 See Order IX., Rule 6, supra, and the notes thereto. 
 
 Rule 13. 
 
 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. 
 
 This is Rule 13 of Order XL of the Rules of Court, drawn up in "1874, 
 under the Principal Act. 
 
 This Rule is copied verbatim from Reg, Gen. Hil. T., 1853, Rule 2, 
 except that " solicitor'* is substituted for " attorney," and " memorandum" 
 for " appearance." 
 
 Rule 14. 
 
 A solicitor not entering an appearance in pursuance 
 of his written undertaking so to do on behalf of any 
 defendant shall be liable to an attachment. 
 
 This is Rule 14 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is copied verbatim horn. Reg. Gen. Hil. T., 1853, Rule 3, with 
 the important modification that the word, " written " is inserted before the 
 word " undertaking." See as to this Rule, Order IX., Rule 1, supra. 
 
 * Daniel's Chancery Practice, 459-60.
 
 320 SUPREME COUJRT OF JUDICATURE ACT, 1876, 
 
 Rule 15. 
 
 A defendant may appear at any time before judgment. 
 If lie appear at any time after the time limited for 
 appearance lie shall, on the same day, give notice there-* 
 of to the plaintiff's solicitor, or to the plaintiff himself 
 if he sues in person, and he shall not, unless the Court or 
 a Judge otherwise orders, be entitled to any further time 
 for delivering his defence, or for any other purpose, than 
 if he had appeared according to the writ. 
 
 This is Rule 15 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is founded on s. 29 of the Common Law Procedure Act, 1852 ; 
 but the frame of it is rather different, the proviso relating to notice being 
 thrown into a positive form, instead of being inserted parenthetically. 
 
 The important words, " unless the Court or a Judge otherwise orders," 
 are also introduced after the word, " not." 
 
 Rule 16. 
 
 In Probate actions any person not named in the writ 
 may intervene and appear in the action as heretofore, 
 on filing an affidavit showing how he is interested in the 
 estate of the deceased. 
 
 This is Rule 16 of Order XI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 It was a rule of the Prerogative Court, that, when a suit was pending, a 
 party, whose interest might, by possibility, be affected by the suit, should be 
 allowed to intervene to protect his interest.* He was called an "intervener." 
 
 By Rule 6 of the Rules and Orders in contentious business of the 
 Court of Probate, "parties who, previously to the passing of the Court 
 of Probate Act, 1857, had a right to intervene in a cause, may do so, with 
 leave of the Judge or of the Registrars, obtained by order or summons, 
 subject to the same limitations and the same rules as to costs as in the 
 Prerogative Court." 
 
 " The distinction," it has been observed,t " between an intervener and 
 a defendant, properly so-called, would seem to be this, viz., that an inter- 
 vener is a person who puts in an appearance in a suit, while the suit is 
 pending. If a person puts in an appearance in answer to a citation, 
 served upon him by the plaintiff at the commencement of the suit, he is 
 called a defendant." 
 
 * Coote and Tristram's Probate Practice, 257. 
 + .ft., p. 257.
 
 RULES OF COURT. 321 
 
 Rule 17. 
 
 In an Admiralty action in rem any person not named 
 in the writ may intervene and appear as heretofore, on 
 filing an affidavit showing that he is interested in the res 
 under arrest, or in the fund in the registry. 
 
 This is Rule 17 of Order XI. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 The warrant or citation in rem calls upon all persons who have or 
 claim to have any right, title or interest in the property to enter in the 
 Registry an appearance in the cause. As a general rule, not merely the 
 legal owner, but any person having any title to the property proceeded 
 against may appear and defend pro inter esse suo.* 
 
 Rule 18. 
 
 Any person not named as a defendant in a writ of 
 summons for the recovery of land may by leave of the 
 Court or Judge appear and defend, on filing an affidavit 
 showing that he is in possession of the land either by 
 himself or his tenant. 
 
 This is Rule 18 of Order XI. of the Rules of Court drawn up in 1874 
 under the Principal A.ct. 
 
 This rule is copied verbatim from section 172 of the Common Law 
 Procedure Act, 1852. 
 
 Persons claiming in opposition to the title of the tenant in possession 
 were not admitt* d to defend under that section, f 
 
 The affidavit of the person applying for leave to appear and defend 
 must show that he is in possession of the premises, by himself or his tenant. 
 The Court will not, however, consider nice questions as to the applicant's 
 right of possession. t 
 
 A form of affidavit by an applicant for leave to appear in this case will 
 be found in Chitty's " Frms," and also a form of the Judge's Order, 
 giving him leave to appear. || 
 
 Rule 19. 
 
 Any person appearing to defend an action for the re- 
 covery of land as landlord in respect of property whereof 
 
 * Williams and Bruce' s Admiralty Practice, p. 199. 
 
 t Doe d. Norton v, liys, 2 Y. & J. 88. 
 
 I Croft v. Lumtey, 4 E. & B. 614. P. 535. || P. 536. 
 
 21
 
 322 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 he is in possession only by his tenant, shall state in his 
 appearance that he appears as landlord. 
 
 This is Rule 19 of Order XI. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This Rule is copied verbatim from section 173 of the Common Law Pro- 
 cedure Act, 1852. 
 
 The tenant will not, by the landlord being joined, be precluded from 
 setting up any defence which he may have as tenant in possession.* 
 
 A form of appearance by a landlord not named in the writ will be 
 found in Chitty's " Forms." f 
 
 Rule 20. 
 
 Where a person not named as defendant in any writ 
 of summons for the recovery of land has obtained leave 
 of the Court or Judge to appear and defend, he shall 
 enter an appearance according to the foregoing rules, 
 intituled in the action against the party or parties named 
 in the writ as defendant or defendants, and shall forth- 
 with give notice of such appearance to the plaintiff's 
 solicitor, or to the plaintiff if he SUPS in person, and shall 
 in all subsequent proceedings be named as a party defen- 
 dant to the action. 
 
 This is Rule 20 of Order XI. of the Rules of Court drawn up in 1874 
 Tinder the Principal Act. 
 
 This Rule is copied from Reg. Gen , Hil. T., 1853, Rule 113, with the 
 addition of the words at the end, " and shall in all subsequent proceedings 
 be named as a party defendant to the action." A form of notice of ap- 
 pearance by a party not named in the writ will be found in Chitty's 
 " Forms." J 
 
 Rule 21. 
 
 Any person appearing to a writ of summons for the 
 recovery of land shall be at liberty to limit his defence 
 to a part only of the property mentioned in the writ, de- 
 scribing that part with reasonable certainty in his Memo- 
 randum of Appearance or in a notice intituled in the 
 cause, and signed by him cr his solicitor ; such notice to 
 
 *Doe d. Wawn v. Horn, 3 M. and W., 333. fP- 536. J P. 537-
 
 RULES OF COURT. 323 
 
 be served within four days after appearance ; and an 
 appearance where the defence is not so limited shall be 
 deemed an appearance to defend for the whole. 
 
 This is Rule 21 of Order XI. of the Rules of Court drawn up in 1874 
 under the -Judicature Act. 
 
 This Rule is copied from section 174 of the Common Law Procedure 
 Act, 1852, with the addition of the words, "in his memorandum of ap- 
 pearance." 
 
 As to the form of the notice, see the next section. 
 
 Rule 22. 
 
 The notice mentioned in the last preceding Rule may 
 be in the Form No. 7 in Part I. of Appendix (A) hereto,* 
 with such variations as circumstances may require. 
 
 This is Rule 22 of Order XI. of the Rules of Court drawn up in 1874 
 under the Principal Act, Appendix (A) being substituted for Schedule (A), 
 in order to adapt the Rule to the present Act. 
 
 A form of notice in this case is given in Chitty's " Forms," p. 537. 
 
 OKDEB, XIII. 
 
 DEFAULT OF APPEARANCE. 
 
 Rule 1. 
 
 Where no appearance has been entered to a writ of 
 summons for a defendant who is an infant or a person of 
 unsound mind not so found by inquisition, the plaintiff 
 may apply to the Court or a Judge for an order that some 
 proper person be assigned guardian of such defendant, by 
 whom he may appear and defend the action. But no such 
 order shall be made unless it appears on the hearing of 
 such application that the writ of summons was duly 
 served, and that notice of such application was after the 
 expiration of the time allowed for appearance, and at 
 least six clear days before the day in such notice named 
 for hearing the application, served upon or left at the 
 dwelling-house of the person with whom or under whose 
 
 * The form in Appendix (A) contemplates the possibility of the action 
 of ejectment being brought in Chancery.
 
 324 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 care such defendant was at the time of serving such writ 
 of summons, and also (in the case of such defendant being 
 an infant not residing with or under the care of his 
 father or guardian) served upon or left at the dwelling- 
 house of the father or guardian, if any, of such infant, 
 unless the Court or Judge at the time of hearing such appli- 
 cation shall dispense with such last-mentioned service. 
 
 This is Rule 1 of Order XII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This Rule is copied, mutatis mutandis, from Order VII, Rule 3, of the 
 Consolidated Orders of the Court of Chancery. There are, however, two 
 important alterations. One is the substitution of " some proper person " for 
 "one of the solicitors of the Court." In the Court of Chancery the 
 Solicitor to the Suitor's Fund is generally appointed.* But where the 
 application is made by the defendant's family, any suitable person may be 
 appointed.! The other is that persons " of weak mind" are omitted. The 
 practice under this Rule only applies to persons " of unsound mind." In 
 the Court of Chancery persons of great age and incapable of giving 
 a continuous attention to business, have been ordered to be defended 
 by guardian ad litem.\ The application in the Court of Chancery was 
 by motion, and the order might have been obtained of course. Where 
 the guardian dies, a special application for the appointment of a new one 
 becomes necessary. || 
 
 As to what is sufficient service on an infant, or a person of unsound 
 mind not so found by inquisition, see Order IX., Rules 4 and 5, and the 
 notes thereto.^) 
 
 Forms of affidavit in support of the motion will be found in the 
 "Forms" accompanying Daniel's "Chancery Practice/' Nos. 119 and 
 135. 
 
 Rule 2. 
 
 Where any defendant fails to appear to a writ of sum- 
 mons, and the plaintiff is desirous of proceeding upon 
 default of appearance under any of the following 
 Rules of this Order, or under Order XV., Rule 
 1, he shall, before taking such proceeding upon 
 
 * McKerrakin v. Cort, 7 Beav, 347; Thomas v. Thomas, 7 Beav., 47; 
 Biddulph v. Camoys, 9 Beav., 548; Sheppardv. Harris, L. J. Ch., 104. 
 
 t Charlton v. West, 3 D. F. J., 156 ; and se? Moore v. Platel, 1 Beav., 
 583 ; and Biddulph v. Dayrell, 15 L. J. Ch., 320. 
 
 I Newman v. Selfe, 11 W. !>'., 764; Steel v. C'obb., 11 W. R., 298. 
 
 Re Barrington, 27 Beav., 272. 
 
 || Needham v. Smith, 6 Beav., 130. 
 
 1 See also Morgan & Chute s Chancery Acts and Orders, pp. 400-402 
 Daniel's Chancery Practice, pp. 147, 160.
 
 RULES OF COURT. 325 
 
 default, file an affidavit of service, or of notice in lieu of 
 service, as the case may be. 
 
 This is Rule 2 of Order XII. of the Rules of Court drawn up in 1874 
 under the Principal Act, " Order XV., Rule 1," heing substituted for 
 " Rules 7 and 8 of the Schedule to the said Act " [of 1873], in order to 
 adapt the Rule to the present Act. 
 
 This Rule is founded upon the provisions of sections 27 and 28 of the 
 Common Law Procedure Act, 1852. Forms of the affidavit required by 
 this Rule will be found in Chitty's " Forms," pp. 60, 69, and 70.* 
 
 " Notice in lieu of service " is adapted to the case of a foreigner resident 
 out of the jurisdiction.! 
 
 It would appear not to be necessary now to make any affidavit pursuant 
 to sections 18 and 19 of the Common Law Procedure Act, to get leave to 
 proceed against a defendant resident out of the jurisdiction, as the prac- 
 tice has been entirely altered by Order II., Kule 4, and Order XI, Rule 3, 
 an affidavit being required before a defendant resident out of the 
 jurisdiction can be served at all with a copy or notice of the writ of 
 summons. But " leave to proceed " will still be necessary, see form of writ 
 of summons, App. (A), part 1, Nos. 2 and 3. 
 
 The present Rule is evidently applicable to the case of a defendant 
 resident out of the jurisdiction, as well as to that of a defendant resident 
 within it ; and the only affidavits, it would appear, that will be required 
 in the former case will be, first, one when applying for leave to serve the 
 defendant resident out of the jurisdiction; and, secondly, one before 
 taking proceedings in default of appearance by such defendant. 
 
 Rule 3. 
 
 In case of non-appearance by the defendant where the 
 writ of summons is specially indorsed, under Order III., 
 Rule 6, the plaintiff may sign final judgment for any sum 
 not exceeding the sum indorsed on the writ, together 
 with interest at the rate specified, if any, to the date of 
 the judgment, and a sum for costs, but it shall be lawful 
 for the Court or a Judge to set aside or vary such judg- 
 ment upon such terms as may seem just. 
 
 This Rule is a re-enactment of the second part of Rule 7 of the Principal 
 Act, with the addition of the words, " under Order III., Rule 6." 
 
 This Rule is copied from the 27th section of the Common Law Pro- 
 cedure Act, 1852, and is founded on the recommendations of the Judicature 
 Commission. (See note to Order III., Rule 6.) 
 
 It will be perceived that no mention is made of any proof of the amount 
 of the debtor's damages upon a writ of inquiry or before one of the masters, 
 
 *The forms at pp. 69 and 70 are for leave "to proceed ;" but they can 
 easily be adapted to proceedings in default of appearance, 
 f Common Law Procedure Act, Ib52, s. 19.
 
 326 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 in the case of a defendant resident in the jurisdiction as exacted by 
 sections 18 and 19 of the Common Law Procedure Act. This case appears 
 now to fall under the general law. (See Notanda.) 
 
 Rule 4. 
 
 Where there are several defendants to a writ specially 
 indorsed for a debt or liquidated demand in money, 
 under Order III., Rule 6, and one or more of them appear 
 to the writ, and another or others of them do not appear, 
 the plaintiff may enter final judgment against such as 
 have not appeared, and may issue execution upon such 
 judgment without prejudice to his right to proceed with 
 his action against such as have appeared. 
 
 This is Rule 3 of Order XII. of the Rules of Court drawn up in 1874 
 under the Principal Act. See Order XIV., Rule 5, where the same prin- 
 ciple is adopted. 
 
 This Rule is taken from section 33 of the Common Law Procedure Act, 
 1852, with this important alteration, that the claim of the plaintiff against 
 the defendants who have appeared is treated as joint and several, and, 
 consequently, as not in any way prejudiced by his entering final judgment 
 against the defendants who have not appeared, and issuing execution 
 thereupon. 
 
 Under the old practice, the plaintiff, if he signed judgment against the 
 defendants who had not appeared, and issued execution upon such judg- 
 ment, was to be taken to have abandoned his action against the defendant 
 (or defendants) who had appeared. The alternative formerly presented 
 by section 33 of the Common Law Procedure Act, 1.852,* to a plaintiff 
 suing for a debt several defendants, one or more of whom did not appear, 
 was not an inviting one. 
 
 Rule 5. 
 
 Where the defendant fails to appear to the writ of sum- 
 mons, and the writ is not specially indorsed, hut the 
 plaintiff's claim is for a debt or liquidated demand only, no 
 statement of claim need be delivered, but the plaintiff may 
 file an affidavit of service or notice in lieu of service, as 
 the case may be, and a statement of the particulars of his 
 claim in respect of the causes of action stated in the 
 
 * See the note to that section in Day's Common Law Procedure Acts, 
 pp. 69,70.
 
 RULES OF COURT. 327 
 
 indorsement upon the writ, and may, after the expiration 
 of eight days, enter final judgment for the amount shown 
 thereby and costs to be taxed, provided that the amount 
 shall not be more than the sum indorsed upon the writ 
 besides costs. 
 
 This is Rule 4 of Order XII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This Rule is a considerable improvement on section 28 of the Common 
 Law Procedure Act, 1852, for which it is, pro tanto, substituted. That 
 enactment required that a declaration should in this case be filed, and it 
 was only in the event of no plea being pleaded to it within eight days 
 that final judgment could be signed. No statement of claim (declaration) 
 need now be delivered. 
 
 It will be perceived that this Rule only applies when the plaintiff's 
 demand is for a debt or liquidated demand in money only, the writ not 
 being specially indorsed. The next Rule applies to a case where the 
 plaintiff's claim is for detention of goods and pecuniary damages, or 
 either of them ; in which case, of course, the writ cannot be specially 
 indorsed.* 
 
 " A statement of the particulars of the claim." This statement, it is 
 apprehended, will be similar to the one which might have been specially 
 indorsed on the writ ; as to the form of which, see Appendix (A), Part II., 
 section 7. 
 
 "After the expiration of eight days" i.e., from the date of the filing 
 of the affidavit of service and statement of particulars. Under the old 
 practice, the eight days ran from the time of filing a declaration ; and 
 if the defendant pleaded within these eight days, final judgment could 
 not have been signed. 
 
 " The amount shewn thereby," *..,by the particulars contained in the 
 statement. Under the old practice the plaintiff signed final judgment 
 for " an amount not exceeding the amount indorsed on the writ of sum- 
 mons, with interest at the rate specified, if any." t A similar limitation 
 is imposed in the present Rule. 
 
 " The amount shall not be more than the sum indorsed upon the writ." 
 It will be perceived that the words, " with interest at the rate specified," 
 are omitted. The reason of this omission probably is that the money 
 claim, where the writ is indorsed with the amount, but not specially in- 
 d'lisi d with the particulars of the claim, is much more fully set out under 
 the new practice than under the old, interest being specified where any in 
 alleged to be due.J (See the Forms, Appendix (A), Part II., section 2.) 
 
 The word " specified" in section 28 of the Common Law Procedure 
 Act, 1852, probably meant " specified in the declaration." 
 
 * By section 93 of the Common Law Procedure Act, 1852, "in actions 
 where the plaintiff seeks to recover a debt or liquidated demand in 
 money, judgment by default shall be final." 
 
 f Common Law Procedure Act, 1852, section 28. 
 
 + Still it is to be observed that the interest is to be expressly added by 
 Rule 3, where the writ is specially indorsed, although the particulars 
 there are still more full.
 
 328 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 " Costs to be taxed." Under the section just referred to, the costs were 
 only to be taxed when the plaintiff claimed more than " the sum fixed by 
 the Masters for costs." 
 
 Rule 6. 
 
 Where the defendant fails to appear to the writ of 
 summons, and the plaintiff's claim is not for a debt or 
 liquidated demand only, but for detention of goods and 
 pecuniary damages, or either of them, no statement of 
 claim need be delivered, but interlocutory judgment may 
 be entered and a writ of inquiry 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 dis- 
 closed by the indorsement on the writ of summons. But 
 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 question 
 arising in an action may be tried. 
 
 This is Rule 5 of Order XII. of the Rules of Court drawn up in 
 1874 under the Principal Act. 
 
 Where the plaintiff is entitled to enter interlocutory judgment under 
 this Rule, and the writ of summons issues out of a District Registry, 
 such interlocutory judgment (and, when damages have been assessed, final 
 judgment ) is to be entered in the District Registry, unless the Court or a 
 Judge shall otherwise order. Order XXXV., Rule 2. 
 
 " No statement of claim need be delivered." See section 28 of the 
 Common Law Procedure Act, which required in this case, as in the case 
 of a debt or liquidated demand, that " a declaration should be filed" (See 
 note to last section, Rule 1.) 
 
 Where the judgment is " interlocutory" merely i.e., for unliquidated 
 damages the plaintiff's title to damages is thereby established ; but the 
 amount of them yet remains to be ascertained. Under the old practice, 
 this was done by a reference to the master, or by means of a writ of in- 
 quiry.* 
 
 A reference to a Master was a more expeditious and less expensive 
 mode of proceeding than executing a writ of inquiry. The Court was in 
 the habit of referring it to the Master to compute damages, where the 
 damages were a mere matter of calculation of figures, even before the 
 Common Law Procedure Act, 1852, and by the 94th section of that Act 
 the legislature expressly sanctioned references to the Master in cases where 
 the amount of damages was " substantially a matter of calculation." The 
 Writ of Inquiry is usually executed before the Sheriff or his deputy, who 
 
 * Archibold's " Practice," p. 990.
 
 RULES OF COURT 329 
 
 in London is the Secondary, M. de Jersey. The inquest is taken nearly 
 in the same manner as at a trial at Nisi Prius. All the plaintiff, how- 
 ever, has to prove, is the quantum of the damages,* and the defendant, 
 therefore, cannot go into any evidence of matter tantamount to a defence 
 of the action or any part of it, and which he might have pleaded.t 
 Though he hrings forward no evidence at all in support of his claim, the 
 plaintiff must have nominal damages, at least, given him hy the inquest. 
 The writ is issued, as of course, without obtaining any order of the Court 
 for the purpose, except when it is to he executed before a Judge. 
 
 In the case of a reference to the Master, an Order of the Court or a 
 Judge is necessary. It is apprehended that the present Rule is not in- 
 tended to interfere with the previous practice of referring the question of 
 the quantum of damages to the Master. The powers of Masters under the 
 new practice are denned in Order LIV., infra. 
 
 "Where the action proceeds in a District Registry, the reference, it is 
 apprehended, would he to the District Registrars, who are armed with all 
 the powers of Masters. J 
 
 The present Rule says, that " the Court or a Judge may order that the 
 damages shall be ascertained in any way in which any question arising in 
 an action may be tried." By s. 57 of the Principal Act, "the Court or a 
 Judge may, in any cause or matter, order any question arising therein to 
 be tried either before an official or before a special referee." 
 
 Rule 7. 
 
 In case no appearance shall be entered in an action 
 for the recovery of land, within the time limited for appear- 
 ance, or if an appearance be entered, 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 possession of the land, or of the part 
 thereof to which the defence does not apply. 
 
 This is Rule 6 of Order XII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 The Rule is copied from s. 177 of the Common Law Procedure Act, 1852. 
 
 Mule 8. 
 
 Where the plaintiff has indorsed a claim for mesne 
 profits, arrears of rent, or damages for breach of contract, 
 upon a writ for the recovery of land, he may enter judg- 
 ment as in the last preceding Rule mentioned for the land, 
 
 * De Gaillon v. L'Aigle, B. and P. 368. 
 t Speck v. Phillips, 5 M. and W., 279. 
 JSee Order XXXV., Rule 4.
 
 330 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 and may proceed as in the other preceding Rules of this 
 Order as to such other claim so indorsed. 
 
 This is Rule 7 of Order XII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 See as to this Rule s. 214 of the Common Law Procedure Act, 1852. 
 
 Under the old practice it was sometimes more prudent not to proceed 
 for mesne profits when the defendant did not appear.* 
 
 Rule 9. 
 
 In actions assigned by the 34th section of the Act 
 to the Chancery Division, and in Probate actions, and 
 in all other actions not by the Rules in this Order other- 
 wise specially provided for^ in case the party served with 
 the writ does not appear within the time limited for appear- 
 ance, upon the filing by the plaintiff of a proper affidavit 
 of service, the action may proceed as if such party had 
 appeared. 
 
 This is Rule 8 of Order XII. .of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This provision is new. In the Court of Chancery the practice has been f 
 for the plaintiff' to enter an appearance for the defendant, when the latter has 
 made default in appearance. In the Court of Probate the practice has 
 been to proceed without any defendant, -when the defendant makes default 
 in appearance.J 
 
 Rule 10. 
 
 In an Admiralty action in rent, in which an appear- 
 ance has not been entered, the plaintiff may proceed as 
 follows : 
 
 (a.) He may, after the expiration of twelve days 
 from the filing of the writ of summons, take out 
 a notice of sale, to be advertised by him in two 
 or more public journals to be from time to time 
 appointed by the Judge. 
 
 (b.) After the expiration of six days from the 
 
 * Day's Common Law Procedure Acts, p 210, 4th ed. (1872.) 
 t Rules 3, 4 and 7 of Order X., of the Consolidated Orders of the Court 
 of Chancery. 
 
 % Coote and Tristram's Probate Practice, p. 565.
 
 RULES OF COURT. 331 
 
 advertisement of the notice of sale in the said journals, 
 if an appearance has not been entered, the plaintiff 
 shall file in the Registry an affidavit to the effect that 
 the said notices have been duly advertised, with 
 copies of the journals annexed, as also such proofs as 
 may be necessary to establish the claim, and a notice 
 of motion to have the property sold. 
 
 (c.) If, when the motion comes before the Judge, 
 he is satisfied that the claim is well founded, he may 
 order the property to be appraised and sold, and the 
 proceeds to be paid into the Registry. 
 
 (d.) If there be two or more actions by default 
 pending against the same property, it shall not be 
 necessary to take out a notice of sale in more than 
 one of the actions ; but if the plaintiff in the first 
 action does not, within eighteen days from the filing 
 of the writ in that action, take out and advertise the 
 notice of sale, the plaintiff in the second or any 
 subsequent action may take out and advertise the 
 notice of sale, if he shall have filed in the Registry a 
 writ of summons in rem in such second or subsequent 
 action. 
 
 (e.) Within six days from the time when the pro- 
 ceeds have been paid into the Registry, the plaintiff 
 in each action shall, if he has not previously done 
 so, file his proofs in the Registry, and have the action 
 placed on the list for hearing. 
 
 (/.) In an action of possession, after the expiration 
 of six days from the filing of the writ, if an appear- 
 ance has not been entered, the plaintiff may, on 
 filing in the Registry a memorandum , take out a 
 notice of proceeding in the action, to be advertised 
 by him in two or more public journals to be from 
 time to time appointed, by the Judge.
 
 332 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 (</.) After the expiration of six days from the 
 advertisement of the notice of proceeding in the said 
 journals, if an appearance has not been entered, the 
 plaintiff shall file in the Kegistry an affidavit to the 
 effect that the notice has been duly advertised with 
 copies of the journals annexed, as also such proofs as 
 may be necessary to establish the action, and shall 
 have the action placed on the list for hearing, 
 
 (/j.) If when the action comes before the Judge he 
 is satisfied that the claim is well founded, he may pro- 
 nounce for the same, and decree possession of the 
 vessel accordingly. 
 
 This is Rule 9 of Order XII. of the Rules of Court, drawn up in 1874 
 under the Principal Act. 
 
 The Rule is copied verbatim from the Rules, Orders and Regulations for 
 the High Court of Admiralty (made in pursuance of the provisions of the 
 3 and 4 Viet., cc. 65 and 66, and 17 and 18 Viet. c. 78), Rules 18 to 26.* 
 
 ORDER XIV. 
 LEAVE TO DEFEND WHERE WRIT SPECIALLY INDORSED. 
 
 Rule 1. 
 
 Where the defendant appears on a writ of summons 
 specially indorsed, under Order III., Bule 6, the plaintiff 
 may, on affidavit verifying the cause of action, and swear- 
 ing that in his belief 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 per- 
 
 * See them in the Appendix to Williams and Bruce' s Admiralty Practice, 
 pp. xxxi., xxxii. The only alteration is the substitution of the plaintiff 
 for his " proctor."
 
 RULES OF COURT. 333 
 
 mitted to defend the action, make an order empowering 
 the plaintiff to sign judgment accordingly. 
 
 This Rule is a re-enactment of the third part of Rule 7 of the Principal 
 Act, with the addition of the words "under Order III., Rule 6," and 
 the omission of the words at the end, " permission to defend the action 
 may be granted to the defendant on such terms or conditions, if any, as 
 the Judge or Court may think just." 
 
 The omitted words appear as Rule 6 of this Order, infra. 
 
 As to the time within which the defendant is to deliver his defence, 
 where he is permitted to defend the action under this Rule, see Order 
 XXII., Rule 3. 
 
 The present Order contains an important improvement on sec. 27 of 
 the Common Law .Procedure Act, 1852. It is founded on the following 
 recommendation of the Judicature Commission* : " Further, in all cases 
 in which a special indorsement has been made on a writ, and the de- 
 fendant has appeared, the plaintiff should be entitled, on affidavit verifying 
 the cause of action and swearing that, in his belief, there is no defence, 
 to take out a summons to show cause why he should not be at liberty 
 to sign judgment : upon which summons such order may be made as the 
 justice of the case may require." 
 
 Rule 2- 
 
 The application by the plaintiff for leave to enter final 
 judgment under the last preceding Rule shall be made 
 by summons returnable not less than two clear days after 
 service. 
 
 This is liule 1 of Order XIII. of the Rules of Court drawn up in 1874 
 under the 1'rincipal Act, "under the last preceding Rule" being sub- 
 stituted for " after appearance to a writ specially indorsed under Kule 7 
 of the Schedule to the said Act," in order to adapt the Rule to the 
 present Act. 
 
 Ihe Judicature Commission recommended t that the plaintiff should 
 "take out a summons" in this case. 
 
 Rule 3. 
 
 The defendant may show cause against such applica- 
 tion by offering to bring into Court the sum indorsed on 
 the writ, or by affidavit. In such affidavit 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 chum. And 
 the Judge may, if he think fit, order the defendant to attend 
 
 * First Report, p. 11. f Ibid.
 
 334 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 and be examined upon oath ; or to produce any books or 
 documents or copies of or extracts therefrom. 
 
 This is Rule 2 of Order XIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 In this and the following Rules, the details of the recommendation of the 
 Judicature Commission (cited under Rule 1), have been very carefully- 
 worked out. 
 
 A speedy remedy against defendants, who seek to defeat by delay their 
 creditors, will now be available, in the case of liquidated demands, 
 specially endorsed. 
 
 Rule 4. 
 
 If it appear that the defence set up by the defendant 
 applies only to a part of the plaintiff's claim, or 
 that any part of his claim is admitted to be due, 
 the plaintiff shall have judgment forthwith for such 
 part 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 cost?, or otherwise, as the Judge may think 
 fit. And the defendant may be allowed to defend as to 
 the residue of the plaintiff's claim. 
 
 This is Rule 3 of Order XIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 See note to Rule 3. 
 
 Rule 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 not such defence, 
 and ought not to be permitted to defend, the former may 
 be permitted to defend, and the plaintiff shall be entitled 
 to outer 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. 
 
 This is Rule 4 of Order XIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 See Order XIII., Rule 4, where the same principle is adopted. See also 
 B. 33 of the Common Law Procedure Act, 1 852.
 
 RULES OF COURT. 335 
 
 Rule 6. 
 
 Leave to defend may be given unconditionally, or 
 subject to such terms as to giving security, or otherwise, 
 as the Court or a Judge may think fit. 
 
 This Eule is a re-enactment of the latter portion of the third part of 
 Rule 7 of the Principal Act, omitted from Order XIV., Eule 1, supra. 
 Contrary to the principle on which the Rules of Court of 1874 are drawn 
 up, this Rule, though forming part of the Schedule to the Principal Act, is 
 repeated in Order XIII. Rule 5, of these Rules of Court. 
 
 " Leave to defend," i.e., tinder the circumstances mentioned in the pre- 
 vious Rules of this Order. 
 
 ORDER XV. 
 
 APPLICATION FOR ACCOUNT WHERE WRIT INDORSED 
 UNDER ORDER III., RULE 8. 
 
 Rule 1. 
 
 In default of appearance to a summons indorsed under 
 Order 1 1 1., Rule 8, and after appearance, unless, thedefendant 
 by affidavit or otherwise satisfy the Court or a Judge that 
 there is some preliminary question to be tried, an order for 
 the account claimed, with all directions now usual in the 
 Court of Chancery in similar cases, shall be forthwith 
 made. 
 
 This Rule is a re-enactment of the second part of Rule 8, of the Principal 
 Act, " to a summons indorsed under Order III., Rule 8," being substituted 
 for " on such summons," in order to adapt the Rule to the present Act. 
 
 See Order XIII., Rule 2, as to filing affidavit of service or notice in lieu 
 of it under this Rule. 
 
 This Rule is copied from the recommendations of the Judicature 
 Commission:* "In cases of ordinary account, as in the case of a partnership 
 or executorship or ordinary trust account, when nothing more is required, 
 in the first instance than an account, the writ should he specially endorsed, 
 and in default of appearance or after appearance, unless the defendant shall 
 satisfy a Judge that there is really some preliminar question to be tried, 
 an order for the account with all usual directions should be made forthwith." 
 
 Rule 2. 
 
 An application for such order as mentioned in the 
 last preceding Rule shall be made by summons, and be 
 supported by an affidavit filed on behalf of the plaintiff, 
 
 * First Report, p. 11.
 
 336 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 stating concisely the grounds of his claim to an account. 
 The application may be made at any time after the time 
 for entering an appearance has expired. 
 
 This is Order XIV. of the Rules of Court drawn up in 1874 under the 
 Principal Act, " for such Order as mentioned in the last preceding Rule," 
 being substituted for " an account under Rule 8 of the Schedule to the 
 said Act," in order to adapt the Rule to the present Act. 
 
 " The application shall be made by summons," as under Order XIV., 
 Rule 2; 
 
 OEDEE XVI. 
 
 PARTIES. 
 
 Rule 1. 
 
 All persons may be joined as plaintiffs in whom the 
 right to any relief claimed is alleged to exist, whether 
 jointly, severally, or in the alternative. And judgment 
 may be given for such one or more of the plaintiffs 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 unsuccessful, shall be entitled to 
 his costs occasioned by so joining any person or persons 
 who shall not be found entitled to relief, unless the Court 
 in disposing of the costs of the action shall otherwise 
 direct. 
 
 This is Rule 1 of Order XV. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This Rule is taken from Section 19 of the Common Law Procedure 
 Act, 1860, which Mr. Day has pronounced * to be " a very valuable enact- 
 ment." 
 
 The Common Law Commissioners suggested that plaintiffs should be 
 entrusted with the right of bringing their actions in the names of all 
 the persons in whom the legal right might be supposed to exist, leaving 
 it to the Court to give judgment in favour of the person or persons 
 who might be found to be entitled to recover. The Legislature gave 
 effect to this suggestion by enacting the 19th section of Common Law 
 Procedure Act, 1860. The old rule, requiring an action to be brought 
 in the name only of the person in which the right of action was vested, 
 was thus abrogated. 
 
 The present Rule wisely retains the provision of s. 19 of the Common 
 Law Procedure Act 1860, as to extra costs needlessly occasioned to an 
 unsuccessful defendant. 
 
 The law at the time of the passing of the Common Law Procedure 
 
 * Common Law Procedure Acts, p. 864.
 
 RULES OF COURT. 337 
 
 Act, 1852, with reference to the mis-joinder and non-joinder of plaintiffs 
 and defendants, is thus stated by the Common Law Commissioners: * 
 " In actions on contract, the omission of a party as plaintiff who ought 
 to be joined, or as the joinder of a party who ought not to be joined, may 
 be fatal to the action; so the joinder of a person as defendant, who 
 ought not to be joined, is likewise fatal ; whilst the omission of a party 
 as defendant who ought to be joined can only be taken advantage of by 
 a plea in abatement. In actions of tort the joinder of a party, who 
 ought not to be plaintiff, is fatal ; whilst the non-joinder of a party, 
 who ought to be a co-plaintiff, can only be taken advantage of by a plea 
 in abatement ; and in such actions the joinder of persons, who are not 
 liable as defendants, only entitles them to an acquittal; and the non- 
 joinder of persons jointly liable is of no consequence." 
 
 The 34th and five following sections of the Common Law Procedure 
 Act, 1852, contained elaborate provisions for amending the proceedings, 
 so as to save the plaintiff from defeat in his action through the mis- 
 joinder or non-joinder of plaintiffs or defendants. Some of the pro- 
 visions of these sections are noticed in the notes to the subsequent Eules 
 of this Order. 
 
 Rule 2. 
 
 Where an action has been commenced in the name of 
 the wrong person as plaintiff, or where it is doubtful 
 whether it has been commenced in the name of the right 
 plaintiff or plaintiffs, the Court or a Judge may, if satisfied 
 that it has been so commenced through a bond fide mistake, 
 and that it is necessary for the determination of the real 
 matter in dispute so to do, order any other person or per- 
 sons to be substituted or added as plaintiff or plaintiffs 
 upon such terms as may seem just. 
 
 This is Eulc 3 of Order XV. of the Kules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 The method of striking out and adding names of plaintiffs is prescribed 
 by Rule 13, infra. 
 
 This Kule is intended to supplement the previous one. Mr. Day in 
 his prefaccf observes upon the danger of a mistake as to the proper per- 
 son to institute an action. "A mistake involves an expensive defeat." 
 "Great hardship and difficulty" are "imposed upon the person really 
 interested as plaintiff." 
 
 Rule 3. 
 
 All persons may be joined as defendants against whom 
 the right to any relief is alleged to exist, whether 
 
 * 3rd "Report, p. 9. t PP. 4, 5. 
 
 22
 
 338 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 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. 
 
 This is Rule 2 of Order XV. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is new, but it is the logical sequence of the principles intro- 
 duced, with regard to the joinder of plaintiffs, by the 19th Section of 
 the Common Law Procedure Act, 1860, and embodied in Rule 1 of this 
 Order. 
 
 Rule 4. 
 
 It shall not be necessary that every defendant to 
 any action shall be interested as to all the relief thereby 
 prayed for, or as to every cause of action included therein ; 
 but the Court or a Judge may make such order as may ap- 
 pear just to prevent any defendant from being embarrassed 
 or put to expense by being required to attend any 
 proceedings in such action in which he may have no 
 interest. 
 
 This Rule is a re-enactment of Rule 23 of the Principal Act. " 
 It embodies a principle well known and recognised in Courts of Equity, 
 where the practice is to bring before the Court all parties whose appear- 
 ance is necessary, in order to enable it to do complete justice, a practice 
 which will form a distinguishing feature of the new system of judicature. 
 (See subsection (7) of section 24 of the Principal Act, and s. 13 of this 
 Order). 
 
 Rule 5. 
 
 The plaintiff may, at his option, join as parties to 
 the same action all or any of the persons severally, or 
 jointly and severally, liable on any one contract, inclu- 
 ding parties to bills of exchange and promissory notes. 
 
 This Rule is a re-enactment of the 16th Rule of the Principal Act. 
 
 See Order II., Rule 6, supra. 
 
 By s. 6 of the Summary Procedure on Bills of Exchange Act, 1855, 
 (18 & 19 Viet., c. 67), "the holder of any bill of exchange or promissory 
 note may, if he thinks fit, issue one writ of summons, according to that 
 Act, against all or any member of the parties to such bill or note, and 
 such writ of summons shall be the commencement of an action or actions 
 against the parties therein named respectively, and all subsequent pro- 
 ceedings against auch respective parties shall be in like manner, as far as
 
 RULES OF COTJRT. 339 
 
 may be, as if separate writs of summons had been issued." It is quite 
 optional with a plaintiff to avail himself of this provision or not ; and 
 while it, therefore, in no way fetters his rights against any of the parties, 
 it enables him at the expense of one writ (the service of which, as against 
 any of the parties, he may delay as he thinks fit), to lay the foundation of 
 an action against all.* 
 
 The principle of this enactment is extended by this Rule to all actions 
 ex contractu. 
 
 Mule 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 question as to which, if any, of the 
 defendants is liable, and to what extent, may be determined 
 as between all parties to the action. 
 
 This Eule is a re-enactment of Rule 13 of the Principal Act. 
 
 " In such manner as hereinafter mentioned," i.e. by Rule 13 of this Order, 
 which see. It is apprehended that this Rule only applies to a " doubt " 
 striking the mind of the plaintiff after he has commenced his action. If 
 the " doubt " strikes his mind before the commencement of the action, 
 Rule 3 ought to solve it.f 
 
 Rule 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 join- 
 ing 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 to or in lieu 
 of the previously existing parties thereto. 
 
 This Rule is a re-enactment of Rule 14 of the Principal Act. 
 
 * 
 
 * Day's Common Law Procedure Acts, 1852, p. 386. 
 
 f It is to be observed that the present Rule was embodied in the Schedule 
 to the Act of 1873, while Rule 3 was framed in 1874, which might account 
 for any tautology.
 
 340 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 See the 9th Rule of s. 42 of the Stat. 15 and 16 Viet., c. 86, cited under 
 Rule 11, which, to some extent, embodies the principle of this Rule. 
 
 Rule 8. 
 
 Married women and infants may respectively sue as 
 plaintiffs by their next friends, in the manner practised in 
 the Court of Chancery before the passing of this Act ; and 
 infants may, in like manner, defend any action by their 
 guardians appointed for that purpose. 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 Judge may require. 
 
 This Rule is a re-enactment of Rule 15 of the Principal Act. 
 
 It is now settled that all cases in which husband and wife sue together 
 as co-plaintiffs in Chancery, are regarded as suits by the husband alone.* 
 In general, therefore, where the Bill relates to the separate property 
 of the wife, it is necessary that the Bill should be filed in the name of hex- 
 next friend ; otherwise the defendant may object. Where the wife sues 
 by her next friend, the husband must still be a party, and it is usual to 
 make him a defendant,! but a husband having no adverse interest to his 
 wife may be made a co-plaintiff. J 
 
 If a Bill in Chancery is filed on behalf of an infant, without a next friend, 
 the defendant may move to have it dismissed with costs, to be paid by the 
 solicitor. Although an infant has a guardian assigned him by the Court, 
 or appointed by will, yet when the infant is plaintiff, the course is not to 
 call the guardian by that name, but to call him the next friend. Where 
 the infant is defendant, the guardian is so called. But where an infant is 
 defendant, the Court will appoint a guardian ad litem to put in his defence 
 for him and generally to act on his behalf in the conduct and manage- 
 ment of the case. The solicitor to the Suitor's Fee Fund is the person 
 generally appointed, but a co-defendant may be appointed if he has no 
 adverse interest. 
 
 A married woman may be permitted to sue in forma pauperis without 
 a next friend.} A peeress may be admitted to sue in forma pauperis.\\ 
 
 A married woman may apply without a next friend, where she has 
 obtained a Protection Order under 20 and 21 Viet., c. 85, s. 21. (Bate 
 v. The Sank of England, 4 K. and J., 564 ; Re Raimdon, 4 Drew, 466.) 
 
 * Wake v. Parker, 2 Keen, 59, 70 ; Davis v. Prout, 7 Beav., 288, 290. 
 
 t Wake v. Parker, ubi supra ; Davis v. Prout, ubi supra. 
 
 ^.Beardmore v. Gregory, 2 H. and M., 491 ; Meadowcroft v. Campbell, 13 
 Beav., 184. 
 
 Exparte Hakewett, 5 D. M. and G., 116. Re Fatter, 18 Beav., 525 ; 
 Crouch v. Waller, 48 De G. and J., 43. 
 
 || Wellesley v. WelksUy, 16 Sim. 1.
 
 RULES OF COURT. 341 
 
 If her husband is out of the jurisdiction * or cuiliter tnartiua a married 
 person can sue without a next friend. 
 
 See further the Married Women's Property Act, 1870. 
 
 Rule 9. 
 
 Where there are numerous parties having the same 
 interest in one action, one or more of such parties may sue 
 or be sued, or may be authorised by the Court to defend 
 in such action, on behalf or for the benefit of all parties so 
 interested. 
 
 This Rule is a re-enactment of Rule 10 of the Principal Act. 
 
 The Rule is borrowed from the practice of the Court of Chancery. 
 " It has long," says Mr. Daniel,t " been the established practice to allow 
 a plaintiff to sue on behalf of himself and of all others of a numerous class 
 of which he is one, and to make one of a numerous class the only defendant, 
 as representing the others." 
 
 This proposition is very profusely illustrated by Mr. Daniel in the first 
 and second sections of the fifth Chapter of his work on " Chancery Prac- 
 tice." The reader is referred to these sections, which deserve careful 
 consideration. 
 
 Rule 10. 
 
 Any two or more persons claiming or being liable 
 as co-partners may sue or be sued in the name of their 
 respective firms, if any ; and any party to an action may 
 in such case apply by summons to a Judge for a statement 
 of the names of the persons who are co-partners in any 
 such firm, to be furnished in such manner and verified 
 on oath or otherwise, as the Judge may direct. 
 
 This Rule is a re-enactment of Rule 11 of the Principal AcL. 
 
 By Order XII., Rule 12, supra, when partners are sued in the name of 
 their firm, they must appear individually in their own names. All sub- 
 sequent proceedings, however, are to continue in the name of the firm. 
 One of several partners has no implied authority at Common Law to enter 
 an appearance for the others. J 
 
 See, now, as to disclosure of the names of partners, the Registration of 
 Firms Act, 1875. 
 
 *See Postgate v. Harms, 11 W.R. 356, 9 Jur. N. S., 45S 
 t Daniel's Chancery Practice, p. 172. 
 J Archbold's Practice, p. 219.
 
 342 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 11. 
 
 Subject to the provisions of the Act and these Rules, 
 the provisions as to parties, contained in section 42 of 
 15 & 16 Victoria, Chapter 86, shall be in force as to 
 actions in the High Court of Justice. 
 
 This is Rule 4 of Order XV. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 The following is the enactment refened to : 
 
 " It shall not be competent to any defendant in any suit in the said 
 Court* to take any objection for want of parties to such suit in any case 
 to which the rules next hereinafter set forth extend ; and such rules shall 
 be deemed and taken as part of the law and practice of the said Court 
 and any law or practice of the said Court inconsistent therewith shall be 
 and is hereby abrogated and annulled. 
 
 " Rule 1. Any residuary legatee or next of kin may, without serving 
 the remaining residuary legatees or next of kin, have a decree for the 
 administration of the personal estate of a deceased person. 
 
 " Rule 2. Any legatee interested in a legacy charged upon real estate, 
 and any person interested in the proceeds of real estate directed to be 
 sold, may, without serving any other legatee or person interested in the 
 proceeds of the estate, have a decree for the administration of the estate 
 of a deceased person. 
 
 , " Rule 3. Any residuary devisee or heir may, without serving any co- 
 residuary devisee or co-heir, have the like decree. 
 
 " Rule 4. Any one of several cestuis que trustent under any deed or in- 
 strument may, without serving any other of such cestuis que trustent, have a 
 decree for the execution of the trusts of the deed or instrument. 
 
 " Rule 5. In all cases of suits for the protection of property pending 
 litigation, and in all cases in the nature of waste, one person may sue on 
 behalf of himself and of all persons having the same interest. 
 
 " Rule 6. Any executor, administrator, or trustee may obtain a decree 
 against any one legatee, next of kin, or cestuis que trustent for the adminis- 
 tration of the estate, or the execution of the trusts. 
 
 " Rule 7. In all the above cases the Court, if it shall see fit, may re- 
 quire any other person or persons to be made a party or parties to the 
 suit, and may, if it shall see fit, give the conduct of the suit to such person 
 as it may deem proper, and may make such order in any particular case 
 as it may deem just for placing the defendant on the record on the same 
 footing in regard to costs as other parties having a common interest with 
 him in the matters in question. 
 
 " Rule 8. In all the above cases the persons who, according to the pre- 
 sent practice of the Court, would be necessary parties to the suit, shall be 
 served with notice of the Decree, and after such notice they shall be bound 
 by the proceedings in the same manner as if they had been originally 
 made parties to the suit, and they may by an order of course have liberty 
 to attend the proceedings under the decree ; and any party so served may, 
 within such time as shall in that behalf be prescribed by the General 
 Order of the Lord Chancellor, apply to the Court to add to the decree. 
 
 * The Court of Chancery.
 
 RULES OF COURT. 343 
 
 " Rule 9. In all suits concerning real or personal estate which is vested 
 in trustees under a will, settlement, or otherwise, such trustees shall re- 
 present the persons beneficially interested under the trust, in the same 
 manner and to the same extent as the executors or administrators in suits 
 concerning personal estate represent the persons beneficially interested in 
 such personal estate ; and in such cases it shall not be necessary to make 
 the persons beneficially interested under the trusts parties to the suit ; but 
 the Court may, upon consideration of the matter, on the hearing, if it 
 shall so think fit, order such persons, or any of them, to be made parties." 
 
 This section is restrospective.* 
 
 Rule 12, 
 
 Subject as last aforesaid, in all Probate actions rules 
 as to parties, heretofore in use in the Court of Probate, 
 shall continue to be in force. 
 
 This is Rule 5 of Order XV., of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 In an action in the Probate Court, the parties entitled to be plaintiffs arc, 
 primarily, the executor ; failing him, the party entitled to the residue, or 
 a legatee named in the will, or other party interested under the will, or 
 the representatives of these persons. 
 
 Any party whose interest may be' adversely affected by tho will may bo 
 a defendant, and a possibility of interest is sufficient to entitle a party to 
 appear in this character. Amongst the persons who may appear as de- 
 fendants are : 
 
 1 . The widow and next of kin of the deceased, and all other persons 
 entitled in distribution to his personal estate, in the event of his dying 
 intestate, or their representatives. 
 
 2. A legatee named in the will, if his legacy has been omitted from the 
 probate, or his representatives. 
 
 3. An executor or legatee named in any other testamentary instrument 
 of the deceased, of prior date to the will in question, whoso interest is 
 adversely affected by the will, or their representatives. 
 
 4 and 5. When an administration has been previously granted, a creditor 
 in possession of administration and a person in possession of administration 
 under Section 73 of the Probate Act, 1857, as appointee of the Court, 
 without having a beneficial interest in the estate of the deceased. 
 
 G. When the will relates to real as well as personal estate, the heir-at- 
 law, devisee, or other persons pretending an interest in such real estate, 
 are to be made defendants, unless the Court shall otherwise direct. 
 
 When an executor appears to tho citation and propounds the will him- 
 self, he becomes nominally a defendant, but does all acts which usually 
 devolve on the plaintiff, e. g. deliver the declaration, &c.f 
 
 See further as to parties in Probate actions, Rules 4, 5 and 6 of the Rules 
 and Orders of the Court of Probate, and Coote and Tristram's Probate 
 Practice, pp. 251-259. 
 
 As to " intervcncrs," see, also, Order XII., Rule 16, supra. 
 
 * Fowler v. Biylrlon, 9 Hare, App. LXXVIII. 
 
 f Brandreth v. Brandreth ani Wife ; 2 Swabey and Tristram, 44G.
 
 344 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 13. 
 
 No action shall be defeated by reason of the mis- 
 joinder of parties, and the Court may in every action deal 
 with the matter in controversy so far as 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 application 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 plaintiffs 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. No person shall be 
 added as a plaintiff suing without a next friend, or as the 
 next friend of a plaintiff under any disability without his 
 own consent thereto. All parties whose names are so 
 added as defendants shall be served with a summons or 
 notice in manner herein-after mentioned, or in such 
 manner as may be prescribed by any special order, and the 
 proceedings as against them shall be deemed to have 
 begun only on the service of such summons or notice. 
 
 This Rule is a re-enactment of Rule 9 of the Principal Act. 
 
 See as to mis-joinder and non-joinder of plaintiffs and defendants, and 
 the previous remedies therefor, the note to Rule 1, supra. 
 
 The first clause of this Rule is taken from section 19 of the Common 
 Law Procedure Act, 1860 : " The joinder of too many plaintiffs shall not 
 be fatal " extended so as to embrace the case of the joinder of too many 
 defendants, also. 
 
 It is apprehended that the word " mis-joinder " is intended here to 
 include non-joinder. By s. 49 of the Chancery Amendment Act, 1 852, it 
 is provided that " no suit in the Court of Chancery shall be dismissed by 
 reason of the non-joinder of persons as plaintiffs therein." 
 
 Advantage cannot be taken after the 1st of November, 1875, by a 
 defendant of non-joinder of a plaintiff in actions of tort, and of non- 
 joinder of a defendant in actions e.r contractu, by plea in abatement. By 
 Order XIX., Rule 13, pleas in abatement are abolished. 
 
 The second clause of this Rule is founded upon sections 34-39 of the
 
 RULES OF COURT. 345 
 
 Common Law Procedure Act, 1852. The principles underlying those 
 sections have, however, been considerably extended. 
 
 The 34th and 35th sections of the Common Law Procedure Act, 1852, 
 as to the mis-joinder or non-joinder of plaintiffs, and the 37th section of 
 the same Act, as to the mis-joinder and non-joinder of defendants, made a 
 distinction between applications to amend before, and applications to 
 amend at, the trial. All such distinctions are swept away by the present 
 Rule,* which applies to applications made " at any stage of the proceed- 
 ings." Notices of objection to non-joinder, of course, fall to the ground 
 with pleas in abatement. The present Rule substantially agrees with 
 sections 34 and 35 of the Common Law Procedure Act, 1852, as to the 
 necessity of obtaining the consent of the persons whose names are to be 
 struck out or added, but it does not appear to be any longer necessary that 
 the consent should be in any particular form. 
 
 " In manner hereinafter mentioned." See Rule 15 of this Order. 
 
 Defendants may be added or plaintiffs may be added or struck out, 
 under certain conditions, in Equity, t 
 
 Rule 14. 
 
 Any application to add or strike out or substitute a 
 plaintiff or defendant may be mr.de to the Court or a Judge 
 at any time before trial by motion or summons, or at the 
 trial of the action in a summary manner. 
 
 This is Rule 6 of Order XV. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 " By motion" in Court, or " summons" at Chambers. 
 
 The application to amend should in general be made to a Judge at 
 Chambers, by summons, calling upon the opposite party to show cause 
 why the party applying should not have leave to amend. + 
 
 " In a summary manner." Probably in the same manner as hitherto, 
 i.e., the manner prescribed by s. 23 of the 3 and 4 Win. IV., c. 42. 
 The Court or Judge shall " cause the writ or other documents to be 
 forthwith amended by some officer of the Court, or otherwise, in every 
 part of the pleadings, which it may become necessary to amend." 
 
 Rule 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 writ of summons, and serve such 
 new defendant with such writ, or notice in lieu of service 
 thereof, in the same manner as original defendants are 
 served. 
 
 * See, however, the next Rule. 
 
 t See Morgan and Chute's Chancery Acts and Orders, No. 215. 
 
 J Archbold's Practice, p. 1,559. 
 
 See s. 35 of the Common Law Procedure Act, 1852.
 
 346 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 This is Rule 7 of Order XV. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 No provision is made for the case of a plaintiff being added. Section 
 36 of the Common Law Procedure Act, 1852, provides that the plaintiff 
 is to be at liberty in such case to amend the writ and other proceedings 
 by adding the new names ; and the defendant is to be at liberty to plead 
 de novo. 
 
 The practice under the Common Law Procedure Act, 1852, in the case 
 of the addition of the names of new defendants upon notice or plea of 
 nonjoinder is given in s. 38 of that Act : 
 
 " The plaintiff shall be at liberty, without any order, to amend the writ 
 of summons and the declaration by adding the name or names of the 
 person or persons named in such plea in abatement as joint contractors, 
 and to serve the amended writ upon the person or persons named in such 
 plea in abatement, and to proceed against the original defendant or defen- 
 dants and the person or persons so named in such plea in abatement ; pro- 
 vided that the date of such amendment shall, as between the person or 
 persons so named in such plea in abatement and the plaintiff, be considered, 
 for all purposes, as the commencement of the action.' 
 
 Rule 16. 
 
 If a statement of claim has been delivered previously 
 to suoh 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 desirable, and a copy of such amended state- 
 ment of claim shall be delivered to such new defendant at 
 the time when he is served with the writ of summons or 
 notice, or afterwards, within four days after his appearance. 
 
 This is Rule 8 of Order XV. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 As to the amended declaration (statement of claim), see the provisions 
 of s. 38 of the Common Law Procedure Act, 1852, cited in the note to the 
 last Rule. 
 
 Section 60 of that Act furnishes a form of the commencement of the 
 amended declaration (now amended statement of claim) : 
 
 " A.B , by E.F., his attorney [or in his own proper person, &c.] sues 
 C.D. and G.H., which said G-.H. has heretofore pleaded in abatement the 
 nonjoinder of the said (Jr.H." Of course the insertion of the words 
 " which said G.H. has heretofore pleaded in abatement the nonjoinder of 
 the said G.H.," will after the 1st of Nov., 1875, be unnecessary, as pleas 
 in abatement are abolished by Order XIX., Rule 13. 
 
 Ruk 17. 
 Where a defendant is or claims to be entitled to contri-
 
 RULES OF COURT. 347 
 
 bution or indemnity, or any other remedy or relief over 
 against any other person, or where from any other cau^e it 
 appears to the Court or a Judge that a question in the 
 action should be determined not only as between the 
 plaintiff and defendant, but as between the plaintiff, de- 
 fendant, and any other person, or between any or either of 
 them, the Court 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. 
 
 This Rule is a re-enactment of Rule 12 of the Principal Act, with the 
 omission of the -words " in such manner and form as may be prescribed by 
 Rules of Court," after " such last-mentioned person." 
 
 As to giving notice to the third person, see Rule 19 of this Order, 
 infra. 
 
 See, as to the subject-matter of this Rule, the Principal Act, s. 24, sub- 
 section (3). This Rule is copied, almost verbatim, from the First Report 
 of the Judicature Commission, who recommended its adoption. 
 
 The following Rules 18-20 introduce the new practice on this subject, 
 and appear to be carefully framed, with a view to carrying out the 
 recommendation of the Judicature Commission in all its details. 
 
 Rule 18. 
 
 Where a defendant claims to be entitled to contribu- 
 tion, indemnity, or other remedy or relief 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 
 with 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 summons. The notice shall 
 state the nature and grounds of the claim, and shull, unless 
 otherwise ordered by the Court or a Judge, be served 
 within the time limited for delivering his statement of 
 defence. Such notice may be in the form or to the effect 
 of the Form No. 1 in Appendix (B.) hereto, with such 
 variations as circumstances may require, and therewith 
 shall be served a copy of the statement of claim, or if there
 
 348 SUPREME COURT OF JUDICATURE ACT, 1876. 
 
 be no statement of claim, then a copy of the writ of sum- 
 mons in the action. 
 
 This is Rule 9 of Order XV., of the Rules of Court, drawn up in 1874, 
 under the Principal Act. " Appendix (B)" being substituted for " Schedule 
 (B)," so as to bring the Rule into harmony with the present Act. 
 
 See as to the course which a third person served with notice ought to 
 take, Rule 20 of this Order, infra. 
 
 Rule 19. 
 
 When, under Rule 12 of the Schedule to the said Act, 
 it is made to appear to the Court or a Judge, at any 
 time before or at the trial, that a question in the action 
 should be determined, not only as between the plaintiff 
 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 deter- 
 mined, 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 trial as he may think fit. 
 
 This is Rule 10 of Order XV., of the Rules of Court, drawn up in 1874, 
 under the Principal Act, "Rule 17 of this Order" being substituted for 
 " Rule 12 of the Schedule to this Act," in order to adapt the Rule to the 
 present Act. 
 
 Rule 20. 
 
 If a person not a party to the action, who is served 
 as mentioned in Rule 18, desires to dispute the plaintiff's 
 claim in the action as against the defendant on whose 
 behalf the notice has been given, he must enter an appear- 
 ance in the action within eight days from the service of 
 the notice. In default of his so doing, he shall be deemed 
 to admit the validity of the judgment obtained against 
 such defendant,, whether obtained by consent or otherwise. 
 Provided always, that a person so served and failing to 
 appear within the said period of eight days, may apply to
 
 RULES OF COURT. 349 
 
 the Court or a Judge for leave to appear, and such leave 
 may be given upon such terms, if any, as the Court or a 
 Judge shall think fit. 
 
 This is Rule 11 of Order XV., of the Rules of Court, drawn up in 1874, 
 under the Principal Act, "Rule 18" being substituted for "Rule 9," in 1 
 order to adapt the Rule to the present Act. 
 
 Rule 21. 
 
 If a person not a party to the action served under 
 these Rules appears pursuant to the notice, the party 
 giving the notice may apply to the Court 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 desir- 
 able 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 amendments 
 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 person so served shall 
 be bound or made liable by the decision of the question. 
 
 This is Rule 12 of Order XV., of the Rules of Court, drawn up in 1874, 
 under the Principal Act. (The long sentence is rather involved ) 
 
 ORDER XYII. 
 
 JOINDER OF CAUSES OF ACTION. 
 
 Rule 1. 
 
 Subject to the following Rules, the plaintiff may unite in 
 the same action and in the same statement of claim several 
 causes of action, but if it appear to the Court or a Judge 
 that any such causes of action 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
 
 350 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 may make such other order as may be necessary or expedient 
 for the separate disposal thereof. 
 
 This Rule is a re-enactment of Rule 22, of the Principal Act, the words, 
 " subject to the following Rules," heing substituted at the commencement 
 of the Rule, for "subject to any Rules of Court." 
 
 The Rule is taken from s. 41 of the Common Law Procedure Act, 1 852, 
 which, like the present Rule, is permissive only, not compulsory. 
 
 When re-enacting substantially the provisions of the 41st section by this 
 Rule, the legislature has taken care to omit two important qualifications 
 contained in that section, viz : that the causes of action, which are 
 joined, must be " against the same parties and in the same rights."* 
 
 Rule 2. 
 
 No cause of action shall, unless by leave of the Court 
 or a Judge, be joined with an action for the recovery 
 of land, except 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. 
 
 This is Rule 1 of Order XVI. of the Rules of Court, drawn up in 1874 
 under the Principal Act. 
 
 By section 41 of the Common Law Procedure Act, 1852, it is expressly 
 provided that the permission thereby given to join several causes of action 
 shall not extend to replevin or to ejectment. The exception as to replevin 
 would seem to be repealed by this Rule. 
 
 " Claims in respect of mesne profits. " The claimant in ejectment may, 
 under s. 214 of the Common Law Procedure Act, 1852, after proof of his 
 right to recover possession of the premises mentioned in the writ in eject- 
 ment, go into evidence of mesne profits, whether the defendants appear 
 on the trial of ejectment or not. Tinder that enactment it is unnecessary to 
 state anything, either in the writ or issue, in order to entitle the plaintiff 
 in ejectment to recover mesne profits, t 
 
 It is to be observed that the causes of action, which may be joined with 
 ejectment in relation to arrears of rent and damages for breach of contract, 
 must relate to the same premises as those, the possession of which is sought 
 to be recovered. 
 
 Rule 3. 
 
 Claims by a trustee in bankruptcy as suca^shall not, 
 unless by leave of the Court or a Judge, be joined with 
 any claim by him in any other capacity. 
 
 * The wide field opened up for plaintiffs by the last Order would, in 
 itself, be sufficient to account for this omission. 
 + Smith v. Tett, 23 L. J. Ex. 93 ; 9 Ex. 307
 
 RULES OF COURT. 351 
 
 This is Rule 2 of Order XVI. of the Eules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 The words "provided the claims are in the same rights," which occur 
 in s. 41 of the Common Law Procedure Act, 1852, being omitted in Rule 
 1, supra, it becomes necessary to specify the cases in which causes of action 
 accruing in different rights cannot be joined and the present Rule specifies 
 one of them. 
 
 It is not necessary for a trustee in bankruptcy to describe himself as 
 such in the writ of summons, when suing in that capacity. By Rule 5 of 
 Trinity Term, 1853, in actions by assignees in bankruptcy, the character, in 
 which they are stated in the record, to sue or be sued, is not to be con- 
 sidered as in issue, unless specially denied. 
 
 Rule 4. 
 
 Claims by or against husband and wife may be joined 
 with claims by or against either of them separately. 
 
 This is Rule 3 of Order XVI., of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is in accordance with Rule 1 claims in different rights may 
 be joined. 
 
 See as to actions by married women without their husbands or next 
 friend, Order XVI., Rule 8, supra. 
 
 This enactment is an extension of the principle contained in section 40 
 of tho Common Law Procedure Act, 1852 : " In any action brought by a 
 man and his wife for injury done to the wife in respect of which she is 
 necessarily joined as co-plaintiff, it shall be lawful for the husband to add 
 thereto claims in his own right." As pointed out by Mr. Day,* counts 
 for goods sold and delivered, and money lent by the husband, might be 
 joined under the latter enactment to the joint cause of action in respect 
 of injury done to the wife, the terms of it are so wide. 
 
 Rule 5. 
 
 Claims by or against an executor or administrator as 
 such may be joined with claims by or against him per- 
 sonally; 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 ad- 
 ministrator. 
 
 This is Rule 4 of Order XVI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule introduces an important alteration in the law. It has been 
 expressly laiddownt that it is not competent to a plaintiff to join in the 
 
 * Common Law Procedure Acts, p. 79. 
 
 f 2 Wms. Saunders, 117, f. (2) ; 2 Wms. Exors., 6th edn., p. 1729.
 
 352 SUPREME COURT OF JUDICATURE ACT, IS?;. 
 
 same action, claims by him personally with claims by him as an executor 
 or administrator. 
 
 Rule 6. 
 
 Claims by plaintiffs jointly may be joined with claims 
 by them or any of them separately against the same 
 defendant. 
 
 This is Rule 5 of Order XVT. of the Rules of Court, drawn up in 1874, 
 imder the Principal Act. 
 
 One of the qualifications " against the same defendant" mentioned 
 in section 41 of the Common Law Procedure Act, 1852, is introduced in 
 this case. 
 
 Rule 7. 
 
 The last three preceding Rules shall be subject to 
 Rule 1 of this Order, and to the Rules hereinafter 
 contained. 
 
 This is Rule 6 of Order XV., of the Rules of Court, drawn up in 1874* 
 under the Principal Act, " Rule I of this Order" being substituted for 
 "Rule 22 in the schedule to the Act," in order to adapt the Rule to the 
 present Act. 
 
 This is rather an extraordinary Rule. Rule 1 is stated to be " subject to 
 the following Rules," which include the " three preceding Rules'' referred 
 to in the present Rule, while " the three preceding Rules" are declared 
 by the present Rule to be " subject to Rule 1 !" The meaning probably 
 of " subject to Rule 1" is, that a Court or a Judge may, in any of the 
 three last cases, " order separate trials " (see Rule 1) an interpretation 
 which is confirmed by the words, " subject to the Rules hereinafter con- 
 tained," these Rules setting out the modus operandi by which the defen- 
 dant may counteract the effect of the principles laid down in Rules 4, 5, 
 and 9. (See a similar see-saw, Order XXXVI., Rules 3, 4, and 6.) 
 
 Rule 8. 
 
 Any defendant alleging that the plaintiff has united 
 in the same action several causes of action which cannot be 
 conveniently disposed of in one action, may at any time 
 apply to the Court or a Judge for an order confining the 
 action to such of the causes of action as may be con- 
 veniently disposed of in one proceeding. 
 
 This is Rule 7 of Order XVI. of the Rules of Court, drawn up, in 1874, 
 under the Principal Act. 
 
 This and the next Rule supply the modus operandi for working out the 
 proviso attached to Rule 1, " but if it appear to the Court or a Judge that 
 any such causes of action cannot be conveniently tried or disposed of 
 together, the Court or Judge may order separate trials of any such causes
 
 KTJLES OF COURT. 353 
 
 of action to be had, or to make any such other order as' may be necessary 
 or expedient for the separate disposal thereof." 
 
 Rule 9. 
 
 If, on the hearing of such application as in the last 
 preceding Rule mentioned, it shall appear to the 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 ex- 
 cluded, and may direct the statement of claim, or, if no 
 statement of claim has been delivered, 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. 
 
 This is Eule 8 of Order XVI. of the Rules of Court, drawn up in 1874 
 under the Principal Act. 
 See note to Rule 8. 
 
 ORDER XVIII. 
 
 ACTIONS BY AND AGAINST LUNATICS AND PERSONS OF 
 UNSOUND MIND. 
 
 In all cases in which lunatics and persons of unsound 
 mind not so found by inquisition might respectively before 
 the passing of the Act have sued as plaintiffs or would 
 have been liable to be sued as defendants in any action or 
 suit, they may respectively sue as plaintiffs in any action 
 by their committee or next friend in manner practised in 
 the Court of Chancery before the passing of the said Act, 
 and may in like manner defend any action by their corn-- 
 mittees or guardians appointed for that purpose. 
 
 This is Order XVII. of the Eules of Court, drawn up in 1874 under 
 the Principal Act. 
 
 As to service of the writ of summons, in the case of lunatics and per- 
 sons of unsound mind, not so found by inquisition, see Order IX., Rule 5,. 
 supra, and the note thereto. 
 
 This Order places lunatics and persons of unsound mind, not so found 
 by inquisition, on the same footing, mutatis mutandis, as that on which 
 
 23
 
 354 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 infants are placed, with respect to suing and being sued, under Order 
 XVI., Rule 8. 
 
 Suits oil behalf of a lunatic are usually instituted, in the- Court of 
 Chancery, in the name of the lunatic ; but as he is a person incapable at 
 law of taking any steps on his own account, he sues by the committee of 
 his estate, if any, or if none, by his next friend, who is responsible for the 
 conduct of the suit. The committee or next friend must be joined as a 
 co-plaintiff or a defendant. Where the committee of a lunatic filed a Bill 
 on behalf of the lunatic, without joining himself as co-plaintiff, the case 
 was directed to stand over, with liberty to amend, by making the com- 
 mittee co-plaintiff.* 
 
 If the person exhibiting a Bill appear upon the face of it to be a 
 lunatic, and no next friend or committee is named in the Bill, the defendant 
 may demur ;f but if the incapacity does not appear on the face of the Bill, 
 the" defendant must take advantage of it by plea. A committee previously 
 to instituting a suit on behalf of the lunatic, should obtain the sanction 
 of the Lord Chancellor or of the (existing J) Lords Justices. In order to 
 obtain such sanction a state of facts showing the propriety of the suit 
 should be laid before the Master in Lunacy, and a report obtained from 
 him approving of the suit, which report must be confirmed by the Lord 
 Chancellor or Lords Justices. 
 
 Persons of unsound mind not so found by inquisition are permitted to 
 sue by their next friend ; and it seems that if a Bill has been filed in the 
 name of a plaintiff who, at the time of filing it is in a state of mental 
 incapacity, it may, on motion, be taken off the file. 
 
 A lunatic may be made a defendant to a suit, but he must defend by 
 the committee of his estate, who, as well as the lunatic, is a necessary 
 party to the suit. No order is required to enable the committee to 
 defend ; but the committee must obtain the sanction of the Lord Chan- 
 cellor, or of the (existing) Lords Justices, before defending, in the 
 same manner or before instituting a suit. Usually, the lunatic and 
 his committee make a joint defence to the suit; but if it happens that a 
 lunatic has no committee, and the committee is plaintiff, or has an adverse 
 interest, an order should be obtained, on motion of course, or a petition of 
 course at the Rolls, supported by affidavit, appointing a guardian to 
 defend the suit." || 
 
 Persons of ur sound mind, not so found by inquisition, defend by 
 guardian, who will be appointed on an application by motion of course, 
 or on petition of course in the Rolls, in the name of the person of unsound 
 mind. The application must be supported by affidavits proving the mental 
 incapacity of the defendant,1T the fitness of the proposed guardian, and 
 that he has no adverse interest.** 
 
 An appearance should be entered on the defendant's behalf, and an order 
 obtained for a guardian. If such order is not obtained, the plaintiff must 
 apply for an order by motion, notice of which should be served pursuant 
 
 * Woolfryes v. Woolfreys, Rolls, Feb. 7, 1824. 
 f Mitfe., 153. % See s. 7. of the present Act. 
 
 Wartualy v. Wartualy, Jac., 377 ; lake v. Smith, Younge, 596. 
 || Mitf., 104 ; Snell v. Hyat, 1 Dick., 287 ; Lady Eartland v. Atcherlty, 
 1 Bean, 53 ; Watts v. McKenzie, 3 M. and Of., 363. 
 H Simmons v. Bates, 20 L. J., 270. 
 Piddocke v. Smith, 9 Hare., 395.
 
 RULES OF COURT. 355 
 
 to Order VII., Rule 3 of the Consolidated Orders. It is usual to appoint 
 the solicitor to the Suitors' Fund to be the guardian. 
 
 ORDER XIX. 
 
 PLEADING GENERALLY. 
 
 Eule 1. 
 
 The following rules of pleading shall be substituted 
 for those heretofore used in the High Court of Chancery 
 and in the Courts of Common Law, Admiralty, and 
 Probate. 
 
 This rule is a re-enactment of the first part of Rule 18 of the Principal 
 Act. 
 
 No mention, it will bo perceived, is made of the Court for Divorce and 
 Matrimonial Causes; by Order LXII. it is provided that " nothing in 
 these Rules shall affect the Practice or Procedure" in that Court. 
 
 Rule 2. 
 
 Unless the defendant in an action at the time of his 
 appearance shall state that he does not require the delivery 
 of a statement of complaint, the plaintiff shall within such 
 time and in such manner as hereinafter prescribed, deliver 
 to the defendant after his appearance a statement of his 
 complaint and of the relief or remedy to which he claims 
 to be entitled. The defendant shall within such time and 
 in such 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 defence, 
 set-off, or counter-claim. Such statements shall be as brief 
 as the nature of the case will admit, and the Court in 
 adjusting the costs of the action shall inquire, at the instance 
 of any party, into any unnecessary prolixity, and order the 
 costs occasioned by such prolixity to be borne by the party 
 chargeable with the same. 
 
 This rule is a re-enactment of the second part of Rule 18 of the 
 Principal Act, " in such manner as hereinafter prescribed," being sub- 
 stituted for "in such manner as shall be prescribed by Rules of Court." 
 
 The form of Memorandum of Appearance given in Appendix (A),
 
 356 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Part I, No. 6, contains the following intimation at the end of It : " The 
 said defendant (requires, or does not require) a statement of complaint to 
 be filed and delivered." " Within such time and in such manner as herein- 
 after prescribed," namely, in Orders XXI. and XXII., infra. 
 
 By Order II., Rule 2, the use of prolix writs and indorsements of 
 claim is to be visited with costs, in the same manner as prolix statements 
 of claim and of defence, reply, set-off, and counter-claim, under this Rule. 
 The Judicature Commission adduced prolixity as the cardinal sin of 
 Chancery pleadings : " Equity pleadings commonly take the form of a 
 prolix narrative of the facts relied upon by the party, with copies of 
 extracts of deeds, correspondence and other documents and other particu- 
 lars of evidence set forth at needless length."* The plaintiff, whose 
 equity draughtsman indulges a time-honoured taste for a "prolix" narra- 
 tive, will, under this Rule, be mulcted in " the costs occasioned by such 
 prolixity." 
 
 Rule 3. 
 
 A defendant in an action may set-off, or set up, by way 
 of counter-claim against the claims of the 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 enable the Court to pronounce a final judg- 
 ment in the same action, both on the original and on the 
 cross claim. But the Court or a Judge may, on the appli- 
 cation 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 ought not 
 to be allowed, refuse permission to the defendant to avail 
 himself thereof. 
 
 This rule is a re-enactment of Rule 20 of the Principal Act. the words 
 " in an action " being inserted after the words " a defendant," at the 
 commencement of the rule. 
 
 This rule is copied (almost verbatim) from the following recommenda- 
 tion of the Judicature Commission : " We think that a defendant, having 
 a right or claim against a plaintiff with reference to the subject-matter 
 of the suit, or arising out of the same transaction, which at present he 
 cannot enforce without a separate or cross action or suit, should be at 
 liberty to bring forward such right or claim in his answer, which in that 
 case should have the same effect as if it were a declaration in a cross action 
 or suit, so as to enable the Court or a Judge to pronounce a final judgment 
 between the parties with respect both to the original and the cross demand. 
 But a Judge should be empowered, on application by the plaintiff before 
 
 * First Report of the Judicature Commission, p. 11.
 
 BULES OF COURT. 357 
 
 trial, to refuse permissioa to allow such cross right or claim, to be brought 
 forward, if he shall be of opinion that it cannot conveniently be adjudi- 
 cated upon in the case to be tried."* 
 
 The principle of this rule is also embodied in subsection (3) of section 
 24 of the Principal Act : " The said Courts respectively and every Judge 
 thereof shall have power to grant to any defendant in respect of any equi- 
 table estate or right or other matter in equity, and also in respect of any 
 legal estate, right, or title claimed or asserted by him, all such relief 
 against any plaintiff as the said Courts respectively, or any Judge thereof, 
 might have granted in any suit instituted for that purpose by the same 
 defendant against the same plaintiff." 
 
 The framer of this subsection evidently had present to his mind the 
 practice in equity of filing cross bills. It frequently happens that a com- 
 plete decree cannot be made without a cross bill to bring the whole matter 
 in dispute before the Court. A cross bill will even be directed to be filed 
 by the Court itself at the hearing of the original suit, in order to bring 
 the rights of all the parties fully and properly before it. 
 
 The object of the 3rd subsection of section 24 of the Principal Act 
 and of the present Rule, is to give the parties all the advantages which 
 would result from the filing of a cross bill, without involving the trouble 
 and expense of filing it. 
 
 See further, Rule 10, infra, as to set-off and counter-claim. 
 
 Rule 4. 
 
 Every pleading shall contain as concisely as may be 
 a statement of the material facts on which the party plead- 
 ing relies, but not the evidence by which they are to be 
 proved, such statement being divided into paragraphs num- 
 bered consecutively, and each paragraph containing, as 
 nearly as may be, a separate allegation. Dates, sums, and 
 numbers shall be expressed in figures and not in words. 
 Signature of counsel shall not be necessary. Forms simi- 
 lar to those in Appendix (C) hereto may be used. 
 
 This is Rule 1 of Order XVIII. of the Rules of Court, drawn up in 
 1874 under the Principal Act, with the addition of the words at the end, 
 " Forms similar to those in Appendix (C) hereto may be used." With 
 the exception of forms 28 and 29 of Appendix (C) to this Act, which are 
 copied from forms 1 and 2 of Schedule (C) to the Rules of Court of 1874, 
 all the forms in Appendix (C) to this Act are new. 
 
 This rule is copied from s. 10 of the Chancery Amendment Act, 1852. t 
 and assimilates the practice in the Common Law Divisions of the High. 
 Court to that of the Court of Chancery : 
 
 " Every Bill of Complaint shall contain as concisely as may be a 
 
 * First Report of the Judicature Commission, pp. 11, 12. 
 t 15 and 16 Viet., c. 86.
 
 358 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 narrative of the material facts, matters and circumstances on which the 
 plaintiff relies, such narrative being divided into paragraphs numbered 
 consecutively, and each paragraph containing, as nearly as maybe, a 
 separate !tnd distinct statement or allegation. 
 
 "Expressed in figures and not in words." This is taken from Order 
 IX., Rule 3, of the Consolidated Orders of the Court of Chancery. 
 
 "Signature of counsel shall not be necessary." Here the Common 
 Law, not the Chancery Practice, is followed. By s. 85 of the Common 
 Law Procedure Act it is provided that " the signature of counsel shall 
 not be required to any pleading." By Order VIII, Rule 1, of the Con- 
 solidated Orders of the Court of Chancery it is, on the other hand, pro- 
 vided that "the Clerks of Records and Writs shall not file any bill, 
 exceptions, demurrer, plea, answer, or disclaimer, unless the same be 
 signed by counsel" a rule as old as the time of Henry V. A Bill in 
 Chancery not signed by counsel is dernurrable.* 
 
 Rule 5. 
 
 Every pleading which shall contain less than three folios 
 of seventy- two words each (every figure being counted as one 
 word) may be either printed or written, or partly printed 
 and partly written, and every other pleading, not being 
 a petition or summons, shall be printed. 
 
 This is Rule 2 of Order XVIII. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 As to printing, see Order LVL, Rule 2. 
 
 By Order V., Rule 5, " writs of summons shall be written or printed, or 
 partly written and partly printed." 
 
 The introduction of printing into the new system is borrowed from 
 the practice of the Court of Chancery, as, at Common Law, the pleadings 
 are invariably written. The question ot knyth is, of course, an important 
 clement in the case. Every pleading containing more than throe folios 
 (except a petition or summons) must, iinder the new practice, be printed. 
 This will, probably, add considerably to the expense of proceedings in the 
 Common Law Divisions. 
 
 The rule as to printing was not so stringent even in the Court of 
 Chancery. The Bill and Answer had to be printed, irrespective of the 
 length ; but int errogatorics were not required to be printed, nor, it is 
 conceived, pleas, except when a joint plea and answer were put in. 
 
 'Rule 6. 
 
 Every pleading or other document required to be de- 
 livered to a party, or between parties, shall be delivered 
 in the manner now in use to the solicitor of every party 
 
 * Vir/cleu v. Surton, 3 Madd., 378.
 
 RULES OF COURT. 359 
 
 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 partj^, then such pleading or document shall be 
 delivered by being filed with the proper officer. 
 
 This is Rule 3 of Order XVIII. of the Eules of Court drawn up in 
 1874 under the Principal Act. 
 
 Where the plaintifl' " sues by attorney, and where the defendant has 
 appeared by attorney, all notices, summonses, orders, rules, pleadings, and 
 other proceedings must be delivered to the attorney (or his agent if it be 
 a county cause), and not to the party himself, so long as the attorney's 
 authority continues."* Where a party sues or defends in person, the 
 service must be made on him. t 
 
 " The manner now in use." When the service is on an attorney, a 
 copy of the proceedings should be left at his office with some person resi- 
 dent at or belonging to the same.J Service at the chambers of an attor- 
 ney on his laundress will not suffice, unless she act as his servant, and the 
 affidavit of service state that fact, and the deponent's belief of it. Putting 
 a copy of a rule under the door of the attorney's chambers or place of 
 business, or into a letter box,|| unless there is a notice requesting papers, 
 &c., to be so left, is insufficient.** 
 
 " The manner now in use " of delivering pleadings where the party sues 
 and defends in person is prescribed by Eule 166 of the Reg. Gen. Hii. T., 
 1833. Pleadings must be delivered at the "address of service." The 
 rule does not state, however, to whom the pleadings may be delivered. 
 Delivery to the party's mother,tt sister,* j or female relation stopping at 
 his residence is sufficient. A mode of delivery, which would not suffice 
 in the case of delivery to the attorney, will not suffice where the party sues 
 or defends in person. |||| 
 
 " Filed." This is the course prescribed by section 28 of the Common 
 Law Procedure Act, 1852, in the case of a declaration in default of ap- 
 pearance. 
 
 All pleadings in the Court of Chancery, whether bills, answers, pleas, 
 demurrers, or replications, are filed with the Clerks of Records and 
 Writs ; but by Rule 9 of Order III. of the Consolidated Orders of that Court, 
 " where any solicitor or party causes an answer, demurrer, pleas, or 
 replication to be filed, he shall, on the same day, give notice thereof to the 
 solicitor of the adverse party, or to the adverse party himself, if he acts in 
 person." 
 
 Rule 7. 
 
 Every pleading in an action shall be delivered between 
 parties, and shall be marked on the face with the date of 
 
 * Tashburn v. Havelock, Barnes, 306. | Archbald's Practice, 165, 166. 
 
 J Kent v. Jones, 3 Dowl., 210. Smith v. Spurr, 2 Dowl., 281. 
 
 Stratton v. Hawkes, 3 Dowl., 25. 
 
 || Braham v. Sawyer, 1 D. and L., 466. 
 
 ** Warren v. Thompson, 2 Dowl., N.S., 224. ft Warren v. Smith, 2 
 
 Dowl., 216. 
 
 %+ Archer v. Evans, 1 Dowl., N.S., 861. 
 Weedon v. Lipman, 9 Dowl., 111. |||| Arc'hbold's Practice, p. 167.
 
 360 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 the day on which, it is delivered, and with the reference ta 
 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. 
 
 This is Rule 4 of Order XVIII. of the Eules of Court drawn up in 
 1874 under the Principal Act. 
 
 " The date of the day." The date of the filing of every pleading must 
 be written or printed on the first page of the pleading, in the Court of 
 Chancery, and must also be entered in the books of the Clerks of Records 
 and Writs.* The letter and the number by which the cause is dis- 
 tinguished in the cause books must also be written or stamped on the first 
 page. | The symbols used are placed on the first page either at the top 
 or on the left hand margin, near the top. The pleading also is intituled 
 of the cause, and states whether it is an answer, plea, &c. See the forms 
 given by Mr. Daniel, 154, 531, &c., and the forms in the Appendix (C), 
 which it will be seen are, mutatis mutandis, a copy of the forms in 
 Chancery. 
 
 The name and place of business of the solicitor or party filing the plead- 
 ing, and his address for service, must, moreover, be indorsed on the , 
 pleading. 
 
 Rule 8. 
 
 Every statement of claim shall state specifically the 
 relief which the plaintiff 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 defendant, in his statement of defence. If 
 the plaintiff's claim be for discovery only, the statement of 
 claim shall show it. 
 
 This is .Rule 5 of Order XVIII. of the Rules of Court drawn up in 1875 
 under the Principal Act. 
 
 The first clause of this Rule is copied from s. 10 of the Chancery Amend- 
 ment Act, 1852: " Every Bill of Compkint shall pray specifically for the 
 relief which the plaintiff may conceive himself entitled to, and also for 
 general relief." Before that enactment it was not absolutely necessary for 
 the plaintiff in a Court of Chancery to " pray specifically for relief," pray- 
 ing for " general relief" was sufficient.:}! 
 
 * Order I, Rules 45, 47, and 48. 
 
 t Thus "A., No. 50 " See the Forms in Appendix (C). 
 J Cook v. Martyn, 2 Atk. 3; Grinies v. French, '2 Atk. 141; and see 
 Partridge v. Haycroft, 11 Ves. 574.
 
 RULES OF COURT. 361 
 
 " Discovery." " Every Bill may be a Bill of discovery." (Daniel's 
 Chancery Practice, 1408.) A Bill of discovery, however, in a Court of 
 Chancery is commonly used in aid of the jurisdiction of some other Court. 
 Of course it will be no longer necessary in aid of an action-at-law. 
 
 See further as to discovery, Order XXXI. infra. 
 
 Rule 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. 
 
 This is Rule 6 of Order XVIII. of the Eules of Court drawn up in 1874 
 under the Principal Act. 
 
 This Rule would seem to modify, if not to abrogate the rule of equity, 
 that two or more distinct subjects cannot be embraced in the same suit, 
 the offence against which was termed " multifariousness," and rendered a 
 Bill liable to demurrer.* 
 
 Rule 10. 
 
 Where any defendant seeks to rely upon any facts as 
 supporting a right of set-off or counter-claim, he shall, 
 in his statement of defence, state specifically that he does 
 so by way of set-off or counter-claim. 
 
 This is Rule 7 of Order XXIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 Under Rule 3, a set-off or counter-claim is to have the same effect as a 
 statement of claim in a cross action, and it is therefore very important to 
 the plaintiff that he should know positively what he is called upon to meet. 
 
 Rule 11. 
 
 If either party wishes to deny the right of any other 
 party to claim as executor, or as trustee, whether in bank- 
 ruptcy or otherwise, or in any representative or other 
 alleged capacity, or the alleged constitution of any partner- 
 ship firm, he shall deny the same specifically. 
 
 * See Daniel's Chancery Practice, p. 283.
 
 362 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 This is Rule 8 of Order XVIII. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 By Rule 5 of the Reg. Gen. Trin., T. 1853, it is provided that in all 
 actions by and against assignees of a bankrupt or insolvent, or executors 
 or administrators, the character in which the plaintiff or defendant is 
 stated on the record to sue or he sued shall not in any case be considered 
 in issue, unless specially denied. Under the old Common Law practice it 
 was not necessary to state the character in which the executor, &c., sued or 
 was sued. By Order III., Rule 4, if the plaintiff sues or the defendant 
 sued is in a representative capacity, the indorsement of claim, on the writ of 
 summons is to show in what capacity the plaintiff sues or the defendant is 
 sued. By Order XVI. where there are numerous parties having the same 
 interest, one or more of the parties may sue or be sued, or defend on behalf 
 of all the parties so interested. The question of suing or being sued 
 in a representative capacity, therefore, is of more importance under the 
 new than under the old practice. 
 
 As to the " alleged constitution of a partnership's firm," see Order VII., 
 Rule 2 ; Order IX., Rule 6 ; and Order XVI., Rule 10. 
 
 Rule 12. 
 
 In Probate actions where the plaintiff disputes the in- 
 terest of the defendant, he shall allege in his statement 
 of claim that he denies the defendant's interest. 
 
 This is Rule 9 of Order XVIII. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 " Interest causes " in the Court of Probate are administration suits where 
 the right of a person applying for probate is contested on the ground of 
 his having no interest in the estate of the deceased, either by reason of his 
 not being related to the deceased at all, or by reason of his not being related 
 to him in so near a degree as to entitle him in distribution to a share in the 
 estate. These suits are conducted by declaration and plea. 
 
 By Rule 61 of the Rules of the Court of Probate in contentioiis business 
 it is provided that " in interest causes each party shall be at liberty to 
 deny the interest of the other." 
 
 Rule 13. 
 No plea or defence shall be pleaded in abatement. 
 
 This is Rule 10 of Order XVIII. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 The Rule abolishes a class of pleas which, as pointed out by Dr. Broom,* 
 " have been discouraged in modern times, as exhibiting a tendency on the 
 part of the defendant, to evade by technical objections, the trial of the 
 matter alleged against him." 
 
 Rule 14. 
 No new assignment shall hereafter be necessary or 
 
 * Commentaries on the Common Law, 171 cdn., p. 1869. Jiroadbent v. 
 Le award, 11 Ad. and E. 209.
 
 RULES OF COURT. 363 
 
 used. But everything which has heretofore been alleged by 
 way of new assignment may hereafter be introduced by 
 amendment of the statement of claim. 
 
 This is Eule 11 of Order XVIII. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 The Rule abolishes a form of replication to -which the plaintiff was 
 obliged to resort to correct mistakes caused by the generality of the 
 declaration, a quality which it derived from its adherence to the tenor of 
 those simple and abstract formulas original writs.* 
 
 Rule 15. 
 
 No defendant in an action for the recovery of land 
 who is in possession by himself or his tenant need plead 
 his title, unless his defence depends on an equitable 
 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 pos- 
 session. And he may, nevertheless, rely upon any 
 ground of defence which he can prove, except as herein- 
 before mentioned. 
 
 This is Rule 12 of Order XVIII. of the Rules of Court, drawn up.in 
 1874, under the Principal Act. 
 
 Under s. 178 of the Common Law Procedure Act, there were no plead- 
 ings in ejectment. The consequence of this was that an equitable defence 
 could not be set up in ejectment under s. 83 of the Common Law Pro- 
 cedure Act, 1854. A defendant who had only an equitable interest in the 
 land, for the recovery of which the action was brought, could not invoke 
 the assistance of a Court of Law.f The defendant was obliged to resort to 
 the Court of Chancery to enforce by injunction his rights. Where a 
 tenant, e.g., had contracted to purchase from the landlord the property of 
 which he was in occupation, if the landlord took proceedings in ejectment, 
 the tenant had still to resort to the Court of Chancery for an injunction to 
 stay proceedings. 
 
 This extraordinary state of things is happily amended by the present 
 Rule. 
 
 Rule 16. 
 
 Nothing in these Rules contained shall affect the right 
 of any defendant to plead not guilty by statute. And 
 
 * Stephen on Pleading, 6th edn.,p. 187. f Mavev. Avery, 16 C.B., 328.
 
 364 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 every defence of not guilty by statute shall have the same 
 effect as a plea of not guilty 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. 
 
 This is Rule 13 of Order XVIII. of the Eules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The plea of " not guilty " by statute, puts in issue not only the 
 defences peculiar to the Statute, but also all that would would have arisen 
 at Common Law.* 
 
 By Eeg. Gen. Trin.T., 1853, Rule 21, the defendant who pleads this 
 plea must insert in the margin of the plea, the words "by statute," to- 
 gether with the year of the reign, and the chapter and section of the Act, 
 otherwise the plea shall be taken not to have been pleaded by virtue of 
 any Act of Parliament. 
 
 Rule 17. 
 
 Every allegation of fact in any pleading in an action, 
 not being a petition or summons, if not denied specifically 
 or by necessary implication, or stated to be not admitted 
 in the pleading of the opposite party, shall be taken to be 
 admitted, except as against an infant, lunatic, or person 
 of unsound mind not so found by inquisition. 
 
 This is Rule 14 of Order XVIII. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The principle contained in this rule is well recognised at the Common 
 Law. " A plea in denial," observe the authors of " Precedents of Plead- 
 ing/' t "admits the truth of all the allegations in the declaration which 
 are not denied by it, provided they are material, and might be denied, for 
 it is an essential principle of pleading that whatever is not denied is 
 admitted, and each plea is to be considered by itself, as if it were the only 
 one on the record. J 
 
 In the Court of Chancery, also, " the Bill, so far as it is not contradicted 
 by the plea is," Lord Redesdale observes, "taken for true." 
 
 Great indulgence has always been shown by the Court of Chancery to 
 infants and lunatics, who are regarded as peculiarly under its care. 
 
 Rule 18. 
 Each party in any pleading must allege all such facts 
 
 * Ross v. Clifton, 11 A and E. 631. 
 
 t Bullen and Leake's "Precedents of Pleading," p. 436, 3rd edn. 
 % See Jones v. Brown, 1 Bing., N. C. 484; Noel v. Boyd, 4 Dowl. 415 ; 
 Saunderson v. Collman, 4 M. & G. 209, 225. 
 Mitford on Pleading, 352 ; see Id., 390.
 
 RULES OF COURT. 365 
 
 not appearing in the previous pleadings as he means 
 to rely on, and must raise all such grounds of 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 plead- 
 ings, as, for instance, fraud, or that any claim has been 
 barred by the Statute of Limitations, or has been released. 
 
 This is Rule 15 of Order XVIII. of the Kules of Court, drawn up in 
 1874, under the Principal Act. 
 
 This Rule appears to mean that a plaintiff will not at the trial be per- 
 mitted to spring fraud or the Statute of Limitations upon the opposite 
 party, unless in his pleadings he has specially pleaded it. The Statutes of 
 Limitations must, under the old Common Law practice, have heen 
 specially pleaded, and by Reg. Gen. Trin. T., 1853, fraud must have been 
 specially pleaded. 
 
 Rule 19. 
 
 No pleading, not being a petition or summons, shall, 
 except by way of amendment, raise any new ground of 
 claim, or contain any allegation of fact inconsistent with 
 the previous pleadings of the party pleading the same. 
 
 This is Rule 16 of Order XVIII. of Rules of Court, drawn up in 1874, 
 under the Principal Act, with the addition of the words, " not being a 
 petition or summons," after "no pleadings." 
 
 This Rule preserves the well known principle, that there must be no 
 " departure " in pleading. 
 
 Lord Coke defines it thus: * "A departure in pleading is said to be 
 when the second plea containeth matter not pursuant to his former, and 
 which fortifieth not the same, and therefore it is called decessus. because he 
 departeth from his former plea." 
 
 "A departure," Mr. Serjeant Stephen points out,t "obviously can never 
 take place till the replication." 
 
 Rule 20. 
 
 It shall not be sufficient for a defendant in his de- 
 fence to deny generally the facts alleged by the state- 
 ment of claim, or for a plaintiff in his reply to deny 
 generally the facts alleged in a defence by way of counter- 
 
 * Co. Litt. 304a. 
 
 t Stephen's PL, 328. See instances of departures, Hickman v. Walker, 
 Willes, 27 ; Roberts v. Mariett, 2 Saund, 188.
 
 366 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 claim, but each party must deal specifically with each 
 allegation of fact of which he does not admit the truth. 
 
 This is Rule 17 of Order XVIII. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 This Rule seems to make pleading strictly " special " in all cases, and 
 to do away with the general issue. 
 
 "Whereas," observe the authors of "Precedents Pleading," any de- 
 fence is admissible under the general issue, it is still clearly the interest of 
 the defendant to plead it in that form. By this means he may avoid dis- 
 closing his particular ground of defence ; he will gain the advantage of 
 throwing the greatest burthen of proof on his adversary, and he may avail 
 himself, not only of the particular defence he proposes to rely on, but also 
 of any other ground which may arise at the trial, and which falls within 
 the scope of the general issue." 
 
 Rule 21. 
 
 Subject to the last preceding rule, the plaintiff by his 
 his reply may join issue upon the defence, and each party 
 in his pleading, if any, subsequent to reply, may join issue 
 upon the previous pleading. Such 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 which the party may be willing to admit, and 
 shall then operate as a denial of the facts not so admitted. 
 
 This is Rule 18 of Order XVIII. of the Rules of Court, drawn up in 
 1374, under the Principal Act. 
 
 The first part of this Rule is taken from s. 79 of the Common Law Pro- 
 cedure Act, 1852. "Either party may plead in answer to the plea or 
 subsequent pleadings of his adversary, that he joins issue thereon." 
 
 The 79th section proceeds as follows : " Such forms of joinder of 
 issue shall be deemed to be' a denial of the substance of the plea or other 
 subsequent pleadings, and an issue thereon." 
 
 Dr. Stephen* points out that "in the rules of pleading given by the 
 Schedule annexed to the Jurisdicature Act, 1873, no pleadings beyond the 
 reply are mentioned,' ' and that " under the system prior to that Act, there 
 was recognised a rejoinder on the part of the defendant to the replication, 
 a turrejoinder from the plaintiff, a rebutter by the defendant, and a sur- 
 rebutter on the part of the plaintiff." 
 
 The present Rule, however, restores the old practice, for it speaks of 
 "pleadings subsequent to reply." 
 
 By Order XXIV, Rule 2, however, no pleading subsequent to the reply 
 can be pleaded without leave of the Court or a Judge. 
 
 * P. 461 in (a). 
 
 f Stephen's Comm., Vol. 3, p. 507, n. (x), 7th edn. (1874).
 
 ETTLES OF COURT. 367 
 
 Rule 22. 
 
 When a party in any pleading denies an allegation of 
 fact in the previous pleading of the opposite party, he 
 must not do so evasively, but answer the point of sub- 
 stance. Thus, if it be alleged that he received a certain 
 sum of money, it shall not be sufficient to deny that he re- 
 ceived that particular amount, but he must deny that he 
 received that sum or any part thereof, or else set out how 
 much he received. And so when a matter of fact is alleged 
 with divers circumstances, it shall not be sufficient to deny 
 it as alleged along with those circumstances, but a fair and 
 substantial answer must be given. 
 
 This is Rule 19 of Order XVIII. of the Rules of Court drawn up in 
 1874 under the Principal Act. 
 
 This Rule is taken from Order XV., Rule 2, of the Consolidated Orders 
 of the Court of Chancery. The first clause of the Rule stands thus in 
 the Chancery Order : " When a defendant denies a fact (sic) he must 
 traverse or deny directly, and not byway of. negative pregnant." The 
 illustration which follows is copied verbatim. The last clause of the 
 Rule is thus expressed in the Chancery Order : " And so where a fact is 
 alleged, with divers circumstances, the defendant must not deny or 
 traverse it literally, as it is alleged in the Bill, but must answer the point 
 of substance positively and certainly." * 
 
 Rule 23. 
 
 When a contract is alleged in any pleading, a bare 
 denial of the contract by the opposite party shall be con- 
 strued only as a denial of the making of the contract in 
 fact, and not of its legality or its sufficiency in law, whether 
 with reference to the Statute of Frauds or otherwise. 
 
 This is Rule 20 of Order XVIII. of the Rules of Court, drawn up in 
 1874 under the Principal Act. 
 
 The general issues, non assumpsit, and non est factum operated only as a 
 *' denial of the making of the contract in fact,t" and matters in con- 
 fession and avoidance, and which showed the transaction to be void or 
 voidable in point of law had to be specially pleaded, e.g., release, infancy, 
 coverture. But it was not necessary specially to plead the Statute of 
 Frauds, as if the alleged contract did not satisfy the requirements of that 
 
 * This Order is as old as 1661. 
 
 t Keg. Gen., Trin. T., 1853, Rule 6.
 
 368 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 statute, there was no contract at all in fact. Practically, therefore, a 
 defence in matter of law (though not by way of confession or avoidance) 
 was admissible under the general issue. It will not in future be admissible 
 under the " bare denial of the contract " to be substituted for the general 
 issue, non assumpsit and non estfactum. 
 
 Rule 24. 
 
 Wherever the contents of any document are ma- 
 terial, it shall be sufficent in any pleading to state the 
 effect thereof as briefly as possible, without setting out the 
 whole or any part thereof, unless the precise words of the 
 document or any part thereof are material. 
 
 This is Rule 21 of Order XVIII. of the Eules of Court drawn up in 
 1874, under the Principal Act. 
 
 Compare with this Rule s. 56 of the Common Law Procedure Act, 
 1852. 
 
 As " Equity pleadings commonly take the form of a prolix narrative, 
 with copies and extracts of deeds, correspondence and other documents set 
 forth at needless length" * the Equity draughtsman will be well advised 
 to give heed to this Rule ; the consequences of neglect to do so will be 
 the infliction of costs upon the party, for whom he is instructed. 
 
 The Court of Chancery itself,f indeed, has impressed upon its counsel 
 that they must "take care that the deeds, writings, and records be not 
 unnecessarily set out thereon in h<ec verba, but that so much of them only 
 as is pertinent and material be given, as Counsel may deem admissible 
 without needless prolixity." 
 
 Rule 25. 
 
 "Wherever it is material to allege malice, fraudulent 
 intention, knowledge, or other condition of the mind of 
 any person, it shall be sufficient to allege the same as a fact 
 without setting out the circumstances from which the same 
 is to be inferred. 
 
 This is Rule 22 of Order XVIII. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 This Rule appears to be intended to restrain the effect of Rule 4, supra, 
 that " every pleading shall contain a statement of the material facts on 
 which the party pleading relies." 
 
 It will still, it would seem, be sufficient, e.g. to allege in an action for 
 
 * First Report of the Judicature Commission, p. 11. 
 t Order VIII., Rule 2, of the Consolidated Orders of the Court of 
 Chancery.
 
 RULES OF COURT. 369 
 
 malicious prosecution tliat " the defendant prosecuted legal proceedings 
 against the plaintiff maliciously and without reasonable and probable 
 cause," instead of "setting out the circumstances from which this may 
 be inferred." 
 
 Rule 26. 
 
 Wherever it is material to allege notice to any person 
 of any fact, matter, or thing, it shall be sufficient to allege 
 such notice as a fact, unless the form or the precise terms 
 of such notice be material. 
 
 This is Rule 23 of Order XVIII., of the Eules of Crown drawn up in 
 1874 under the Principal Act. 
 
 Some such form as " of all which the said defendant ha<i notice " will, it 
 is apprehended, be a sufficient allegation of notice under this Rule. 
 
 The object of this Rule is similar to that of the preceding one, to 
 restrict the effect of the 4th Rule. 
 
 Rule 27. 
 
 Wherever any contract or any relation between any 
 persons does not arise from an express agreement, but is 
 to be implied from a series of letters or conversations, or 
 otherwise from a number of circumstances, it shall be suffi- 
 cient to allege such contract or relation as a fact, and to 
 refer generally to such letters, conversations, or circum- 
 stances without setting them out in detail. And if in such 
 case the person so pleading desires to rely in the alter- 
 native upon more contracts or relations than one as to be 
 implied from such circumstances, he may state the same 
 in the alternative. 
 
 This is Rule 24 of Order XVIIL, of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 It is apprehended that the common indebitatus counts can no longer be 
 used under this Act, although some of the statements of claim given in 
 Appendix (A), Part II., Section II., savour strongly of them. The ex- 
 press statement of the material facts " can hardly bo satisfied by stating 
 that the plaintiff sues for money payable by the defendant to the 
 plaintiff for money lent." All counts must, like all pleas, be "special." 
 Under these circumstances it will be seen, what a valuable check the 
 present Rule will afford upon prolixity. 
 
 24
 
 370 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 28. 
 
 Neither party need in any pleading allege any matter 
 of fact which the law presumes in his favour or as to 
 which the burden of proof lies upon the other side, unless 
 the same has first been specifically denied. 
 
 [E.g. Consideration for a bill of exchange where the 
 plaintiff sues only on the bill, and not for the considera- 
 tion as a substantive ground of claim.] 
 
 This is Eule 25 of Order XVIII., of the Rules of Court, drawn up in 
 1874, under the Principal Act, with the note appended thereto by way of 
 illustration. 
 
 This Rule embodies two rules of pleading which are placed by Mr. 
 Serjeant Stephen* under the category of restrictive Rules : " It is not 
 necessary to state matter of law." " It is not necessary to state matter 
 which would come more properly from the other side." Ex facto jus 
 oritur ; and the Judges can gather it for themselves. It is also unneces- 
 sary to leap till you come to the stile. f It is sufficient that each pleading 
 should in itself contain a good primd facie case, without reference to 
 possible objections not yet raised. 
 
 Rule 29. 
 
 Where an action proceeds in a District Registry^ all 
 pleadings and other documents required to be filed shall bo 
 filed in the District Registry. 
 
 This is Rule 26 of Order XXIII of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 See Order XXXV, as to District Registries and the entry of proceedings 
 therein. See also B. 64 of the Principal Act.J 
 
 Rule 30. 
 
 In actions for damage by collision between vessels, 
 unless the Court or a Judge shall otherwise order, each 
 solicitor shall, before any pleading is delivered, file with 
 the proper officer a document to be called a Preliminary 
 Act, which shall be sealed up and shall not be opened until 
 
 * PP. 287, 290. 
 
 * Per Holt, C. J. in Sir R. Borey's cage, 1 Vent. 217. 
 
 1 Other Rules relating to District Registries are Order V., Rules 2 
 and 3, Order XII, Rules 2, 3, 4, and 5.
 
 KTJLES OF COURT. 371 
 
 ordered by the Court or a Judge, and which shall contain 
 a statement of the following particulars : 
 
 (a.) The names of the vessels which came into col- 
 lision, and the names of their masters. 
 (b.) The time of the collision. 
 (c.) The place of the collision. 
 (d.) The direction of the wind. 
 (c.) The state of the weather. 
 ( /".) The state and force of the tide. 
 (g.) The course and speed of the vessel when the 
 other was first seen. 
 
 (/?,.) The lights, if any, carried by her. 
 (/.) The distance and bearing of the^other>essel 
 when first seen. 
 
 (/,;.) The lights, if any, of the other vessel which 
 were first seen. 
 
 (/.) Whether any lights of the other vessel, other 
 than those first seen, came into view before the col- 
 lision. 
 
 (in.} What measures were taken, and when, to avoid 
 the collision. 
 
 (.) The parts 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. 
 
 ' This is Rule 27 of Order XVIII. of the Eules of Court, drawn up in 
 1 874, under the Principal Act. 
 
 This Rule is copied verbatim from Rules 62, 63, and 64 of the Rules and 
 Orders of the Court of Admiralty. 
 
 The object of the practice in that Court of requiring Preliminary Acts 
 is to obtain a statement recenti facto of the leading circumstances and to 
 prevent either party varying his version of facts, so as to meet the allega- 
 tions of his opponents.* The Court will never allow a party to contradict 
 
 * The Vortiffcni, Swa. 518; The Infexible, Swa. 33.
 
 372 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 his own Preliminary Act at the hearing, and an application to amend a 
 mistake in a Preliminary Act must be made immediately on discovery.* 
 
 In cases where an order is made that the cause shall be heard on the 
 Preliminary Acts without any pleadings, it is usual to have the cause 
 heard forthwith on vivd voce evidence in open Court. 
 
 OEDEE, XX. 
 
 PLEADING MATTERS ARISING PENDING THE ACTION. 
 
 Rule 1. 
 
 Any ground of defence which has arisen after action 
 brought, but before the defendant has delivered his state- 
 ment 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 delivered, 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 with any other ground of reply. 
 
 This is Eule 1 of the XIX th Order of the Eules of Court, drawn up in 
 1874, under the Judicature Act. 
 
 The first part of this Eule is founded on sections 68 and 69 of the 
 Common Law Procedure Act, 1852, and the 22nd and 23rd Eules of the 
 Eeg. Gen. Trin. T., 1853. 
 
 A plea puis darrein continuance is, strictly speaking, a plea of a new 
 matter of defence, e.g., a release from the plaintiff, arising after plea, but 
 it is used in s. 68 of the Common Law Procedure Act to denote a plea of 
 new matter of defence arising after the commencement of the action, 
 whether before or after plea. In the present order two kinds of pleas 
 puis darrein continuance are distinguished ; the first part of the present 
 Eule deals with pleas puis darrein continuance before plea ; the next Eule 
 with pleas puis darrein continuance arising after plea, the third Eule deals 
 with both. 
 
 By Eule 22 of the Eeg. Gen. Trin. T., 1853, "a plea containing a 
 defence arising after the commencement of the action may be pleaded 
 together with pleas of defences arising before the commencement of the 
 action." 
 
 No form of plea puis darrein continuance is given in the Appendix ; but 
 it may be assumed that it will be stated, as heretofore, that the new 
 matter arose " after the last pleading in this action." Of course this can 
 only be done where, as under the present Eule, the new matter of defence 
 arises before plea or statement of defence. 
 
 Further particulars as to this plea will be found in Archbold's Prac- 
 tice, Part n, Chapter 2. 
 
 * The Vortigern, ubi supra.
 
 RULES OF COURT. 373 
 
 The second clause of this Rule introduces, of course, a new practice, 
 founded on Order XIX, Rule 3, and sub-section (3) of s. 24 of the Prin- 
 cipal Act. 
 
 Rule 2. 
 
 Where any ground of defence arises after the defen- 
 dant has delivered a statement of defence, or after the 
 time limited for his doing so has expired, the defendant 
 may, and where any ground of defence to any set-off or 
 counter-claim arises after reply, or after the time limited 
 for delivering a reply has expired, the plaintiff may, within 
 eight days after such ground of defence has arisen, and 
 by leave of the Court or a Judge, deliver a further defence 
 or further reply, as the case may be, setting forth the 
 same. 
 
 This is Rule 2 of the XlXth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 By section 69 of the Common Law Procedure Act, 1852, "no such plea 
 shall be pleaded unless accompanied by an affidavit that the matter thereof 
 arose within eight days next before the pleading of such plea, and unless 
 a Court or a Judge shall otherwise order." (There is no similar limitation 
 of time, it will be perceived, in Rule 1, supra]. 
 
 By pleading this plea the defendant abandons all his former pleas.* 
 
 It may be pleaded at any time before verdict, even after the jury have 
 retired to consider their verdict. t If pleaded after a demurrer, it .ope- 
 rates as a retraxit of the demurrer. { 
 
 Rule 3. 
 
 Whenever any defendant, in his statement of defence, 
 or in any further statement of defence i as in the last Rule 
 mentioned, alleges any ground of defence which has arisen 
 after the commencement of the action, the plaintiff may 
 deliver a confession of such defence, which confession uiay 
 be in the Form No. 2 in Appendix (B.) hereto, with such 
 variations as circumstances may require, and he may there- 
 upon sign judgment for his costs up to the time of the 
 
 * Barber v. Palmer, 1 Salk, 178. 
 t Pearson v. Parkins, B. N. P. 310, 
 J Stoner v. Gibbons, Moore, 871.
 
 374 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 pleading of such defence unless the Court or a Judge shall, 
 either before or after the delivery of such confession, other- 
 wise order. 
 
 This is Rule 3 of the XlXth Order of the Eules of Court drawn up in 
 1874 under the Principal Act. 
 
 The form in Appendix (B) is new. 
 
 This Rule is taken from Rules 22 and 23 of the Reg. Gen. Trin. T., 
 1853. The words, "unless the Court or a Judge shall otherwise order " 
 are, however, new. 
 
 Where a plea that the plaintiff, since the last pleading, had been con- 
 victed of felony, is pleaded puis darrein continuance, the plaintiff may con- 
 fess the plea, and sign judgment for the costs under this Rule.* 
 
 ORDER XXI. 
 
 STATEMENT OF CLAIM. 
 
 Rule 1. 
 
 Subject to Rules 2 and 3 of this Order, the delivery 
 of statements of claim shall be regulated as follows : 
 
 (a.) If the defendant shall not state that he does 
 not require the delivery of a statement of claim the 
 plaintiff shall, unless otherwise ordered by the Court 
 or a Judge, deliver it within six weeks from the time 
 of the defendant's entering his appearance. 
 
 (5.) The plaintiff may, if he think fit, at any time 
 after the issue of the writ of summons, deliver a state- 
 ment of claim, with the writ 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: 
 Provided 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 
 otherwise ordered by the Court or a Judge. 
 
 (c.) Where a plaintiff delivers a statement of 
 
 * Barnett v. L. N. Jr. Jiy. Co., 5 H. & N. 601.
 
 RULES OF COURT. 375 
 
 claim without being required to do so, the Court 
 or a Judge may make such order as to the costs 
 occasioned thereby as shall seem just, if it appears 
 that the delivery of a statement of claim was un- 
 necessary or improper. 
 
 This is Rule 1 of Order XX. of the Rules of Court, drawn up in 187-1, 
 under the Principal Act. 
 
 This Rule effects a considerable change in the practice at Common Law 
 with respect to declaring. The plaintiff has hitherto had the whole of 
 the term next after the appearance was entered to declare in, and this 
 whether the appearance was entered in term time or in vacation. After 
 the expiration of that interval the defendant was entitled to give him 
 notice to declare within four days. * If the plaintiff was not ready to 
 declare within the four days, he could apply to a Judge for further time 
 to declare, which would be granted, if sufficient grounds were stated. 
 At the expiration of the four days the defendant was entitled to sign 
 judgment of non pros against him. If the defendant did not give the 
 notice and obtain judgment of non pros, the plaintiff might declare at any 
 tune within a year next after the service of the writ, t 
 
 By Order XXXVII., Rule 4, of the Consolidated Orders of the Court of 
 Chancery, " a defendant required to answer a bill must put in his plea, 
 answer, or demurrer thereto, within twenty-eight days from the delivery 
 to them or to his solicitor of a copy of the interrogatories which he is re- 
 quired to answer." 
 
 The practice at Common Law and in Chancery will now be assimilated 
 and unless the Court or a Judge otherwise order, the plaintiff is to deliver 
 his declaration within six weeks from the appearance of the defendant. 
 
 Subsection (b)introduces a considerable innovation by enabling a plain- 
 tiff to deliver a declaration with the writ of summons or before appearance. 
 The only case in which a plaintiff could previously declare before ap- 
 pearance was under section 28 of the Common Law Procedure Act, 1852, 
 in the case of the non-appearance of a defendant to a writ not specially 
 indorsed. 
 
 The form in Appendix (A) , Part I. , No. 6 , of the Memorandum of Appear- 
 ance provides, rt.s already stated, for an intimation by the defendant to the 
 plaintiff, that he does or does not require a statement of claim. If the 
 defendant forgoes a statement of claim the plaintiff may be fined in costs for 
 unnecessarily or improperly delivering to him one. 
 
 Rule 2. 
 
 In Probate actions the plaintiff shall, unless otherwise 
 ordered by the Court or a Judge, deliver his statement 
 of claim within six weeks from the entry of appear- 
 ance by the defendant, or from the time limited for his 
 
 * Common Law Procedure Act, 1852, s. 53. t 16., e. 58.
 
 376 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 appearance, in case he has made default ; but, where the 
 defendant has appeared, the plaintiff shall not be com- 
 pelled to deliver it until the expiration of eight days 
 after the defendant has filed his affidavit as to scripts. 
 
 This is Rule 2 of Order XX. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is copied from the 34th Rule of the Rules in contentious 
 cosiness of the Court of Probate, with the substitution of " six weeks" for 
 one month, in order to assimilate the practice to that of the other Courts. 
 
 A form of Affidavit of Scripts is given, App. (B) No. 16. 
 
 Rule 3. 
 
 In Admiralty actions in rem the plaintiff shall, within 
 twelve days from the appearance of the defendant, deliver 
 his statement of claim. 
 
 This is Rule 3 of Order XX. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is copied from the 58th Rule of the Rules and Orders of the 
 Court of Admiralty : "Within 12 days from the entry of an appearance, 
 the plaintiffs Proctor* shall file his petition." 
 
 Rule 4. 
 
 Where the writ is specially indorsed, and the defen- 
 dant has not dispensed with a statement of claim, it shall 
 be sufficient for the plaintiff to deliver as his statement of 
 claim a notice to the effect that his claim is that which 
 appears by the indorsement upon the writ, unless the Court 
 or a Judge shall order him to deliver a further statement. 
 Such notice may be either written or printed, or partly 
 written 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 ordi- 
 nary statement of claim. And when the plaintiff is 
 ordered to deliver such further statement, it shall be de- 
 livered within such time as by such order shall be 
 directed, and if no time be so limited then within the 
 time prescribed by Rule 1 of this Order. 
 
 * " The petition is in the nature of a declaration at Common Law," 
 Williams and Bruce's Admiralty Practice, p. 246.
 
 RULES OF COURT. 377 
 
 This is Rule 4 of Order XX. of the Rules of Court, drawn up iu 1874, 
 under the Principal Act, " Appendix B," being substituted for " Schedule 
 B " in order to adapt the Rule to the present Act. 
 
 As to writs specially indorsed, see Order III., Rule 7. As to the course 
 of proceeding in case of non-appearance by the defendant, see Order XIII., 
 Rule 3. As to calling upon the defendant to show cause why the plaintiff 
 shall not be at liberty to sign final judgment, where the defendant has 
 appeared, see Order XIV. 
 
 After the defendant has surmounted the perils of the XlVth Order, he 
 will be confronted by the present Rule, telling him to look at the special 
 indorsement, if he wants to know the nature of the plaintiff's claim. If 
 the defence is a bondjide one, the defendant will be pretty sure to avail 
 himself of the opportunity afforded him by this Rule of applying by 
 motion to the Court, or by summons to a Judge for an Order calling 
 upon the plaintiff to deliver a further statement of claim. If no time is 
 mentioned in the order for the delivery of the further statement, it must 
 bo delivered within six weeks from the time of the defendant entering an 
 appearance. 
 
 OBDEB, XXII. 
 
 DEFENCE. 
 
 Rule 1. 
 
 Where a statement of claim is delivered to a defen- 
 dant lie shall deliver his defence within eight days* from 
 the delivery of the statement of claim, or from the time 
 limited for appearance, whichever shall be last, unless such 
 time is extended by the Court or a Judge. 
 
 This is Rule 1 of Order XXI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 The Rule is taken from s. 63 of the Common Law Procedure Act, 1852. 
 
 The Rule contemplates a defendant pleading to a claim without any 
 statement of it, other than that endorsed on the writ, being delivered. See 
 the form of Memorandum of Appearance, Appendix (A) Part I., No. 6, and 
 Order XIX. Rule 2, and Order XXI. Rule 1. 
 
 Rule 2. 
 
 A defendant who has appeared in an action and stated 
 that he does not require the delivery of a statement of 
 claim, and to whom a statement of claim is not delivered, 
 may deliver a defence at any time within eight days after 
 his appearance, unless such time is extended by the Court 
 or a Judge. 
 
 * Pleas in abatement wero pleaded within four days, but they are 
 abolished by Order XIX., Rule 13.
 
 378 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 This is Rule 2 of Order XXI. of the Eules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule must tend greatly to expedite the proceedings, if defendants 
 waive their right to receive a statement of claim. The eight days will 
 then be substituted for. the six weeks and eight days, which must (under 
 Order XXI., Rule 1 (a), intervene, if the defendant insists on receiving a 
 statement of claim. 
 
 "And to whom a statement of claim is not delivered." These words 
 refer to Order XXI., Rule 1 (b). 
 
 Rule 3. 
 
 Where leave lias been given to a defendant to defend 
 under Order XIV, Rule 1, he shall deliver his defence, 
 if any, within 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. 
 
 This is Rule 3 of Order XXT. of the Rules of Court, drawn up in 1874 
 under the Principal Act. 
 
 " Order XIV., Rule 1," being substituted for " Rule 7 in the Schedule 
 to the Act" (of 1873), in order to bring the Rule into harmony with the 
 present Act. 
 
 " Order XIV., Rule 1." See the whole of that Order, which relates to 
 the speedy process provided for the recovery of debts and liquidated 
 demands where the writ is specially indorsed. 
 
 See also Order XXI., Rule 4, and the note thereto. 
 
 Rule 4. 
 
 Where the Court or a Judge shall be of opinion that 
 any allegations of fact denied or not admitted by the 
 defence ought to have been admitted, the Court may make 
 such order as shall be just with respect to any extra costs 
 occasioned by their having been denied or not .admitted. 
 
 This is Rule 4 of Order XXI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 Under s. 52 of the Common Law Procedure Act, 1852, a defendant, 
 whose pleading tends to " prejudice, embarrass, or delay the fair trial of 
 the action," may be visited similarly with costs. 
 
 Rule 5. 
 
 Where a defendant by his defence sets up any coun- 
 ter-claim which raises questions between himself and 
 the plaintiff along with any other person or persons, he
 
 RULES OF COURT, 379 
 
 shall add to the title of his defence a further title similar 
 to the title in a statement of complaint, setting forth the 
 names of all the persons who, if such counter-claim 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. 
 
 This is Eule 5 of Order XXI. of the Kules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 See Order XIX., Rules 3 and 10, and subsection (3) of section 24 of the 
 Principal Act. 
 
 This practice is, of course, new. 
 
 Eule 6. 
 
 When any such person as in the last preceding .Rule 
 mentioned is not a party to the action, he shall be sum- 
 moned to appear by being served with a copy of the 
 defence, and such service shall be regulated by the same 
 rules as are hereinbefore contained with respect to the 
 service of a writ of summons, and every defence so served 
 shall be indorsed in the Form No. 4 in Appendix (B) 
 hereto, or to the like effect. 
 
 This is Rule 6 of Order XXI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act, " Appendix B " being substituted for " Schedule 
 (B)," in order to adapt the Rule to the present Act. 
 
 This practice, of course, is new. 
 
 The notice calls upon the third party to appear within eight days from 
 service, as in the case of an ordinary writ of summons. 
 
 A somewhat similar process is prescribed by Order XVI., Rule 18, for 
 securing the appearance of a third party, when a defendant claims contribu- 
 tion, fec., from him with a view to helping the defendant to meet his obliga- 
 tions to the plaintiff. In the case contemplated by the present Rule, the 
 third party is a co-defendant of the plaintiff to a quasi cross action by the 
 defendant. In the case contemplated by Order XVI., Rule 17, the third 
 party is a co-defendant of the defendant summoned by the defendant to 
 his aid. 
 
 Form No. 4 gives notice to the third party that, if ho fails to appear, 
 judgment will be given against him. Form No. 1 (applicable to Order 
 XVI., Rule 18) gives notice to the third party that, if he fails to appear, 
 he will be estopped by the judgment.
 
 380 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 7. 
 
 Any person not a defendant to the action, who is 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. 
 
 This is Eule 7 of Order XXI. of the Eules of Court, drawn up in 1874, 
 under the Principal Act. 
 This practice is also new. Compare Order XVI., Eule 20. 
 
 Rule 8. 
 
 Any person named in a defence, as a party to a counter- 
 claim thereby made, may deliver a reply within the time 
 within which he might deliver a defence if it were a state- 
 ment of claim. 
 
 This is Eule 8 of Order XXT. of the Eules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This practice is also new. Compare Order XVI., Eule 21. 
 
 Rule 9. 
 
 Where a defendant by his statement of defence sets 
 up a counter-claim, if the plaintiff or any other person 
 named in manner aforesaid as party to such 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, apply to the Court 
 or a Judge for an order that such counter-claim may be 
 excluded, and the Court or a Judge may, on the hearing 
 of such application, make such order as shall be just. 
 
 This is Eule 9 of Order XXI. of the Eules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Eule is a repetition of the second part of Eule 3 of Order XIX. 
 
 Rule 10. 
 
 Where in any action a set-off or counter-claim is es- 
 tablished as a defence against the plaintiff's claim, the 
 Court may, if the balance is in favour of the defendant,
 
 RULES OF COURT. 381 
 
 give judgment for the defendant for such balance, or may 
 otherwise adjudge to the defendant such relief as he may 
 be entitled to upon the merits of the case. 
 
 This Rule is a re-enactment of Rule 21 of the Principal Act. 
 The Rule is new. 
 
 Rule 11. 
 
 In Probate actions the party opposing a -will may, 
 with his defence, give notice to the party setting up the 
 will that he merely insists upon 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 under similar circumstances according to the practice 
 of the Court of Probate. 
 
 This is Rule 10 of Order XXI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is copied from Rule 41 of the Rules of the Court of Probate, 
 "defence" being substituted for "plea," and "Court of Probate" for 
 " Prerogative Court." 
 
 ORDER XXIII. 
 
 DISCONTINUANCE. 
 
 The plaintiff may, at any time before the receipt of the 
 defendant's statement of defence, or after the receipt 
 thereof before taking any other proceeding in the action 
 (save any interlocutory application), by notice in writing, 
 wholly discontinue his action or withdraw any part or 
 parts of his alleged cause of complaint, and thereupon he 
 shall pay the defendant's costs of the action, or, if the 
 action be not wholly discontinued, the defendant's costs 
 occasioned by the matter so withdrawn. Such costs shall 
 be taxed, and such discontinuance or withdrawal, as the 
 case may be, shall not be a defence to any subsequent 
 action. Save as in this Rule otherwise provided, it shall not 
 be competent for the plaintiff to withdraw the record or
 
 382 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 discontinue 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, upon such terms as to costs, and as to 
 any other action, and otherwise 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 application of a defendant, order the whole or any part 
 of his alleged grounds of defence or counter-claim to be 
 withdrawn or struck out, but it shall not be competent 
 to a defendant to withdraw his defence, or any part thereof, 
 without such leave. 
 
 This Rule is a re-enactment of the forfr first clauses of Rule 46 of the 
 Principal Act. The remainder of the 46th Rule of the Principal Act -will 
 be found under Order XLL, Rule 6. 
 
 If the plaintiff in an action at law found that he had misconceived his 
 action, or that through some defect in the pleadings or otherwise, he 
 would not be able to maintain it, he obtained, before argument or de- 
 murrer, or verdict, a side-bar rule, ordering that, upon payment of the 
 defendant's costs, the action be discontinued. Part of an action could not 
 be discontinued, as the discontinuance put an end to the whole of it.* In 
 order to discontinue after judgment and demurrer, or verdict, the leave of 
 the Court or Judge was necessary. Before the Rules of Hil. T., 1853, it 
 was requisite to get the consent of the defendant's attorney to the rule, if 
 it were sought to utilize it after plea pleaded ; but by the 23rd Rule of 
 that Term this consent was declared to be no longer necessary, and in lieu 
 of it it was stipulated that the Rule must contain an undertaking to pay 
 the costs, and a consent that, if they should not be paid, the defendant 
 might sign judgment of non pros. If the rule were not acted on, in the 
 case of a discontinuance before plea, the plaintiff might be compelled to 
 proceed, t If the plaintiff went on and obtained a verdict, the verdict 
 would not have been set aside, as the rule, not having been acted on, 
 became a nullity. J After a discontinuance, the plaintiff might have com- 
 menced a new action for the same cause, a judgment of discontinuance 
 being in the nature of a nonsuit. 
 
 It may be added that, by consent, the rule to discontinue might be 
 drawn up without costs. || 
 
 In Equity, the proceeding analogous to a discontinuance was a dismissal 
 of his bill by a plaintiff. Before appearance of a defendant, the plaintiff 
 
 * Barton v. Polkingthorne, 16 M. and W., 8. 
 
 t Beeton v. Jupp, 15 M. and V., p. 149. 
 
 J Edginton v. Proudman, 1 D. P. C., 152. 
 
 Mayor of Macclesfield v. Gee, 13 M. and "W., 470. 
 
 j| Archbold's Practice, p. 1485.
 
 RULES OF COURT. 383 
 
 might dismiss the Bill as against him without costs.* After appearance, 
 and before decree, the plaintiff might generally, on motion of course or a 
 petition of course in the Rolls, have obtained an order to dismiss the Bill 
 on payment of costs ; and by consent, even without payment of costs,t 
 and this, in a proper case, even without the defendant's consent. J Where 
 the plaintiff applied to dismiss the Bill without costs and without the 
 defendant's consent, the application to dismiss was usually made by special 
 motion, of which notice was served on the defendant. The alterations 
 made in the former practice appear to be that, in future, proceedings by 
 way of discontinuance will apply to the Chancery Division as well as to 
 the Common Law Division of the Supreme Court ; that discontinuance is 
 to be by notice in writing, instead of by side-bar rule ; that " any part or 
 parts" of the plaintiff's "alleged cause of complaint" may be discon- 
 tinued ; that the action cannot be discontinued by the plaintiff after he 
 has taken any proceeding subsequent to the receipt of the statement of 
 defence, e.g. , after his reply, without leave of the Court or of a Judge. 
 (Under the former practice he might discontinue at any time before 
 verdict, without leave). 
 
 The last clause of this Rule should not have been classed under " dis- 
 continuance," as it is a recognized principle that a plaintiff' only can dis- 
 continue. The expression " discontinue " is not, however, applied, it will 
 be seen, to the defendant. 
 
 Leave to withdraw a plea has hitherto been, in general, granted, on 
 such terms as to costs or otherwise as the Court or a Judge might deem 
 fit. The Court or a Judge would, in like manner, have allowed a plaintiff 
 to withdraw a replication.|| 
 
 There seems to have been some confusion in the mind of the draughts- 
 man of this Rule between a discontinuance and the withdrawal of the 
 record. Where the record is withdrawn, it may, by leave, be re-entered 
 at the same assizes. After a discontinuance the plaintiff is put to a new 
 action for the same cause.lT 
 
 ORDER XXIY. 
 REPLY AND SUBSEQUENT PLEADINGS. 
 
 Rule 1. 
 
 A plaintiff shall deliver his reply, if any, within 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. 
 
 This is Rule 1 of the XXIInd Order of the Rules of Court drawn up in 
 1874 under the Principal Act. 
 
 * Thompson v. Thompson, 7 Beav., 350. 
 t Dixon v. Parks, I Ver. Jun., 402. 
 J Knox v. Brown, 2 Bro. C. C., 166. 
 $ 1 Daniel's Chancery Practice, pp. 690, 691. 
 || See Alder v. Chip, 2 Burr., 755. 
 
 IT As to discontinuance in ejectment, see e. 200 of the Common Law 
 Procedure Act, 1852.
 
 384 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 This is a salutary amendment of the law. It is not a little curious that 
 at Common Law hitherto there has been no limit at all to the time within 
 which a plaintiff might reply, except that one month's notice must nave 
 been given, if a year had elapsed since the last pleading.* In order to 
 compel a plaintiff to reply at all, it was necessary for the defendant to 
 give the plaintiff notice to proceed within four days, " otherwise 
 judgment."t 
 
 In Equity a replication must have been filed within four weeks after the 
 answer, or the last of the answers required to bo put in by the defendant, 
 or, where the plaintiff had undertaken to reply to a plea, within four 
 weeks after the date of his undertaking ; or, where a traversing note had 
 been filed, within four weeks after the filing of the traversing note ; or, 
 where he had amended his Bill without requiring an answer, within one 
 week after the expiration of the time within which the defendant might 
 have answered, but did not desire to answer, or within fourteen days after 
 the refusal of further time to put in an answer, or within fourteen days after 
 the filing of the answer, unless the plaintiff had within such fourteen 
 days obtained a special order to except to such answer or to re-amend the 
 Bill.} 
 
 If the plaintiff at Common Law was not ready to reply within the four 
 days limited by the notice to proceed, he might have obtained further 
 time by summons. The plaintiff in Equity might also ha re applied by 
 motion or summons for an order to enlarge the time for filing his. 
 replication. 
 
 While the present Rule fixes three weeks as the time within which a 
 replication must usually be delivered, it carefully preserves the right to 
 apply for an extension of time. 
 
 Rule 2. 
 
 No pleading subsequent to reply other than a joinder of 
 issue shall be pleaded without leave of the Court or a Judge, 
 and then upon such terms as the Court or Judge shall 
 think fit. 
 
 This is Rule 2 of the XXIInd Order of the Rules of Court, drawn up in 
 1873 under the Principal Act. By requiring that the " leave of the Court 
 or a Judge" should be necessary in order to " plead subsequent to reply," 
 an obstacle is interposed in the way of protracted pleadings. The 
 alternate allegations of fact after the "replication" are known as the 
 "rejoinder," "surrejoinder," "rebutter," and "surrebutter." "After 
 the surrebutter, "say? Mr. Stephens, " the pleadings have no distinctive 
 names ; for, beyond that stage, they are very seldom found to extend." 
 
 The present Rule is founded on the recommendations of the Judicature 
 Commission: "The pleadings should not go beyond the reply, save by 
 special permission of a Judge."|| 
 
 * Reg. Gen. Hil. T., 1853, R. 176. 
 t Common Law Procedure Act, 1852, B. 63. 
 
 J Consolidated Orders of the Court of Chancery, Order XXXIII. 10 (1) 
 (2) ; 12 (1) (2) (3). 
 
 Principles of Pleading, p. 55, 6th ed. 
 || First Report, p. 11.
 
 RULES OF COURT. 385 
 
 Rule 3. 
 
 Subject* to the last preceding Rule, every pleading sub- 
 sequent to reply snail be delivered within four days 
 after the delivery of the previous pleading, unless the 
 time shall be extended by the Court or a Judge. 
 
 This is Rule 3 of the XXIInd Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 " Subject to the last preceding rule," i.e., suhject to leave to plead 
 subsequently to the reply being given. 
 
 Under the previous practice the defendant might have been called upon, 
 by notice from the plaintiff, to rejoin ; the plaintiff by notice from the 
 defendant to surrejoin ; the defendant by notice from the plaintiff to rebut ; 
 and the plaintiff by notice from the defendant to surrebut, within four 
 days, otherwise judgment, under the provisions of the 53rd section of the 
 Common Law Procedure Act, 1852. 
 
 ORDER XXV. 
 
 CLOSE OF PLEADINGS. 
 
 As soon as either party has joined issue upon any plead- 
 ing of the opposite party simply without adding any 
 further or other pleading thereto, the pleadings as between 
 such parties shall be deemed to be closed. 
 
 This is Order XXIII. of the Rules of Court, drawn up in 1874, under 
 the Principal Act. 
 
 The joinder of issue in the forms in Appendix (C) is as follows : " The 
 plaintiff joins issue with the defendant upon his defence or his statement 
 of defence," the joinder of issue being the reply, and the joinder of issue 
 being to the whole of the defence, not to any particular plea or part of 
 the defence. (Compare the forms of joinder of issue given by the Com- 
 mon Law Procedure Act, 1852, section 79.) 
 
 In Equity, " the cause is deemed to be completely to issue upon filing 
 the repli cation." t 
 
 ORDER XXVT. 
 
 ISSUES. 
 
 Where in any action it appears to a Judge that the state- 
 ment of claim or defence or reply does not sufficiently 
 define the issues of fact in dispute between the parties, he 
 
 * A curious typographical error in the Rule as originally framed is 
 corrected, " subject " being substituted at the commencement for " subse- 
 quent," which is clearly an erratum. 
 
 f Daniel's Chancery Practice, p. 732. 
 
 25
 
 386 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 may direct the parties to prepare issues, and such issues 
 shall, if the parties differ, be settled by the Judge. 
 
 This Rule is a re-enactment of Rule 19 of the Principal Act. 
 
 This Rule contains a curious reproduction of a rule which prevailed 
 during the infancy of our system of pleading, viz., that the pleadings 
 should be settled, and the issue evolved in presence of the Judge, and with 
 his sanction, in open Court. Any one who wishes to refer to this ancient 
 rule of pleading will find abundant illustrations of it in the Year Books. 
 
 ORDER XXVII. 
 AMENDMENT OF PLEADINGS. 
 
 Rule 1. 
 
 The Court or a Judge may, at any stage of the pro- 
 ceedings, allow either party to alter his statement of 
 claim or defence or reply, or may order to be struck out 
 or amended any matter in such statements respectively 
 which may be scandalous, or which may tend to preju- 
 dice, embarrass, or delay the fair trial of the action, and 
 all such amendments shall be made as may be necessary 
 for the purpose of determining the real questions or 
 question in controversy between the parties. 
 
 This Rule is a re-enactment of the fourth part of Rule 18 of the 
 Principal Act. 
 
 Amendments in case of mis-joinder or non-joinder of parties have been 
 already treated of in the notes to Order XVI., Rules 1 and 13. 
 
 The'present Rule is founded on sections 52 and 222 of the Common Law 
 Procedure Act, 18-52, section 96 of the Common Law Procedure Act, 
 1854, and section 36 of the Common Law Procedure Act, 1860. 
 
 Fines for " sham pleading " once formed a source of revenue to th; 
 Crown.* It has always been strongly reprobated by the Judges, and they 
 allowed the plaintiff, when the defendant has recourse to it, to sign judg- 
 ment as for want of plea, long before the passing of the Common Law 
 Procedure Acts.t 
 
 "Allow either party to alter his statement of claim or defence or reply." 
 Even before the Common Law Procedure Acts, the plaintiff at Common 
 Law was allowed to strike out a count of the declaration,^ and add a 
 new one, or increase the damages,!! &c., or add to the number of,|| or 
 
 * Com. Dig. " Porogative," D. 22. 
 
 t Day's Common [jaw Procedure Acts, pp. 85, 86. 
 
 j Aylwim v. To'/d, 1 Bing., N.C., 170. 
 
 Brown v. Crump, Taunt., 300. 
 
 IT Dew v. Katz, 8 C. and P., 315. 
 
 \ Lakin v. Watson, 2 Dowl., 633.
 
 RULES OF COURT. 387 
 
 strike out parties named in the declaration,* but it was not till after 
 the Common Law Procedure Acts were passed, that the plaintiff was 
 allowed to add a new count containing a new substantive cause of action. t 
 
 Before the Common Law Procedure Acts, the defendant at Common Law 
 might in general have obtained leave to amend by adding a further plea, if 
 necessary for his defence, or if it were a matter of doubt whether it was 
 so or not. 
 
 And a plea might have been allowed to be added after verdict, and a new 
 trial granted. J After the Common Law Procedure Acts were passed, 
 the Common Law Courts and Judges might "at all times" have allowed 
 a plea to be added. 
 
 Ample opportunity was given to a plaintiff in Equity to amend his 
 bill. If a defendant desired to correct his answer after it had been 
 filed, he had to file a supplemental answer (see Wells v. Wood, 10 Ves., 
 401). 
 
 " Scandalous statements." This is a phrase imported into the Supreme 
 Court with the Court of Chancery. Scandal in Equity consists in the alle- 
 gation of anything which it is unbecoming the dignity of the Court to 
 hear, or is contrary to good manners, or which charges some person with 
 a crime not necessary to be shown in the cause.lf Nothing material, 
 however, is scandalous. || 
 
 Scandal in pleadings before the Court might be excepted to, at any 
 stage of the suit,** and upon the production of an order allowing the 
 exceptions, it was the duty of the officer having the custody of the. 
 pleading to expunge such parts of it as the Court held to be scandalous. tf 
 Costs were generally given to the party aggrieved by the scandalous 
 matter. 
 
 " The real question or questions in controversy." It will be perceived 
 that the words " in the existing suit " have been omitted, thus enlarging 
 the power of amendment. 
 
 Rule 2. 
 
 The plaintiff may, without any leave, amend his state- 
 ment of claim once at any time before the expiration 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. 
 
 * Holmes v. Pinney, 6 Dowl., 627. 
 
 t Archbold's Practice, pp. 239, 240 ; Smith v. Dixon, 4 Dowl., 571. 
 
 J See Kirby v. Simpson, 3 Dowl. 791. 
 
 See Order IX. (II) of the Consolidated Orders of the Court of 
 Chancery. 
 
 If Wyatt's P.R., 383. || Daniel's Chancery Practice, p. 290. 
 
 ** Ellison v. Burgess, 2 P. Wms., 312 n. 
 
 tt Order XVI., Rule 4, of the Consolidated Orders of the Court of 
 Chancery.
 
 388 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 This is Rule 1 of Order XXIV., of the Rules of Court, drawn, up in 
 1874, under the Principal Act. 
 
 This is a new method of amendment at Common Law. The rule 
 there hitherto has been that parties could not amend their own proceedings ; 
 the leave of the Court or a Judge was necessary.* 
 
 Rule 3. 
 
 A defendant who has set up in his defence any set- off 
 or counter-claim may, without 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. 
 
 This is Rule 2 of Order XXIV. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 This practice, of course, is new. Twenty-eight days, as we have 
 .seen, from the delivery to him of a copy of the plaintiff's interrogations, 
 was the period allowed by the Court of Chancery to the defendant for 
 putting in his plea, answer or demurrer to a Bill. 
 
 " Pleading to the reply." See Order XXII., Rule 8, and as to the right 
 generally of the defendant to set up a counter-claim, see subsection (3) of 
 section. 24 of the Principal Act, and Order XIX., Rule 3, supra. 
 
 Rule 4. 
 
 Where any party has amended his pleading under 
 either of the last two preceding Rules, the opposite 
 party may, within 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 Court or Judge may, if satisfied that the justice 
 of the case requires it, disallow the same, or allow it sub- 
 ject to^such terms as to costs or otherwise as may seem just. 
 
 This is Rule 3 of Order XXIV., of the Rules of Court, drawn up in 
 1874, Tinder the Principal Act. 
 This practice, like that of the two Rules referred to, is, of course, new. 
 
 See Suffers v. Sansom, 2 Dowl., 745 ; Bate v. Bolton, 4 Dowl., 677 ; 
 Wright v. Skinner, 5 Dowl., 92.
 
 RULES OF COURT. 
 
 Rule 5. 
 
 Where any party has amended his pleading under 
 Rules 2 or 3 of this Order the other party may apply 
 to the Court or Judge for leave to plead or amend his 
 former pleading within such time and upon such terms as 
 may seem just. 
 
 This is Rule 4 of Order XXIV. of the Eules of Court, drawn up in 
 1874, under the Principal Act, " Rule 2 or 3," being substituted for 
 " Rule 1 or 2," in order to bring the Rule into harmony with the present 
 Act. 
 
 This is new. See notes to Rules 2 and 3 of this Order. 
 
 Rule 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 
 such amendment may be allowed upon such terms as to 
 costs or otherwise as may seem just. 
 
 This is Rule 5 of Order XXIV., of the Rules of Court, drawn rip in 
 1874, under the Principal Act. 
 
 The application to amend should in general bo made to a Judge at 
 Chambers, by summons, calling upon the opposite party to show cause 
 why the party applying should not have leave to amend, but there is an 
 appeal to the Court, to which application also under special circumstances 
 may be made, in the first instance. The amendment is generally 
 allowed only "on payment of costs."* 
 
 " In cases not provided for by the preceding Rules of this Order." The 
 Rules referred to here are, probably, Rules 2, 3, 4 and 5. The application 
 under Rule 1 would bo in one of the three ways specified in this Rule. 
 "Not provided for" may, however, mean in which ths moie of amending, 
 is not pointed out, and in this sense the words would include Rule 1. 
 
 Rule 7. 
 
 If a party who has obtained an order for leave to amend 
 a pleading delivered by him does not amend the same- 
 within the time limited for that purpose by the order, 
 or if no time is thereby limited, then within fourteen 
 
 * Wall v. Lyon, 9 Bing., 411.
 
 390 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 from the date of the order, such order 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. 
 
 This is Eule 6 of Order XXIV. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The party at Common Law who obtained an order was at liberty to act 
 upon it, or to abandon it at his option ; if he chose the latter he might 
 proceed as if the order had not been made.* 
 
 The present Rule will be useful in fixing the time within which the 
 party who has obtained the order must make up his mind whether he will 
 avail himself of it or not. 
 
 The Rule is copied from Order IX. Rule 24 of the Consolidated Orders 
 of the Court of Chancery: "Where the plaintiff obtains an order for 
 leave to amend his bill, and does not amend the same within the time 
 thereby limited for that purpose, or. if no time is so limited, then within 
 14 days from the date of such order, such order to amend becomes void."t 
 
 The party will be deprived of the right of obtaining a second order 
 by the present Rule. 
 
 Rule 8. 
 
 A pleading may be amended by written alterations in 
 the pleading which has been delivered, and by additions 
 on paper to be interleaved therewith if necessary, unless 
 the amendments require the insertion of more than 144 
 words in any one place, or are so numerous or of such 
 a nature that the making them in writing would render 
 the pleading difficult or inconvenient to read, in either 
 of which cases the amendment must be made by delivering 
 a print of the pleading as amended. 
 
 This is Rule 7 of Order XXIV. of the Rules of Court, drawn tip in 
 1874, under the Principal Act. 
 
 This Rule is taken from Order IX., Rule 18, of the Consolidated Orders 
 of the Court of Chancery. 
 
 "144 words," i.e., two folios of 72 words each. See Stone v. Davies, 
 38 M. & G., 240, where, however, the folios referred to were to be reckoned 
 as containing 90 words each. 
 
 "Or are so numerous." It was decided in Johnv. Lloyd,% that although 
 the amendments do not in any one place exceed two folios, the Clerk of 
 Records and Writs has a discretion to refuse to file the bill without a 
 reprint, if the amendments are numerous and complicated. 
 
 * Dlack v. Sanyster, 1 C. M. & R., 521. See Pugh v. Kerr, 6 M. & W. 17. 
 t Nicholson r. Peilc, 2 Beav., 497. 
 I I L. R. Ch. G4.
 
 RULES OF COURT. 391 
 
 Rule 9. 
 
 Whenever any pleading is amended, such pleading when 
 amended shall be marked with the date of the order, 
 if any, under which the same is so amended, and of the 
 day on which such amendment is made, in manner fol- 
 lowing, viz. : " Amended day of ." 
 
 This is Eule 8 of Order XXIV. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is taken from Order IX., Rule 19, of the Consolidated Orders 
 of the Court of Chancery. 
 
 Rule 10. 
 
 Whenever a pleading is amended, such amended plead- 
 ing shall be delivered to the opposite party within the time 
 allowed for amending the same. 
 
 This is Rule 9 of Order XXIV. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 This Rule is taken from Order IX., Rule 20, of the Consolidated Orders 
 of the Court of Chancery, with the addition of the words at the end, 
 " within the time allowed for amending the same." 
 
 ORDER XXVIII. 
 
 DEMURRER. 
 
 Rule 1. 
 
 Any party may demur to any pleading of the oppo- 
 site party, or to any part of a pleading setting up a 
 distinct cause of action, ground of defence, set-off, 
 counter-claim, reply, or, as the case may be, on the ground 
 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, or reply, or as the case may be, 
 to which effect can be given by the Court as against the 
 party demurring. 
 
 The only reference to a demurrer in the schedule to the Principal Act 
 is contained in the third part of Rule 18, "A demurrer to any statement 
 may be filed in such manner and form as may be prescribed by Rules of 
 Court." 
 
 The present Rule is Rule 1 of Order XXV. of the Rules of Court, drawn 
 up in 1874, under the Principal Act.
 
 392 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 When a pleading is clearly bad in substance it is generally advisable 
 to demur to it, as the judgment upon the demurrer will be final, and 
 determine the cause or the part of the cause to which it relates in the 
 simplest and cheapest manner.* 
 
 As to set-off and counter claims see Order XIX. Eule 3, and subsection 
 (3) of section 24 of the Principal Act. 
 
 Eule 2. 
 
 A demurrer shall state specifically whether it is to the 
 whole or to a part, and if so, to what part, of the pleading 
 of the opposite party. It shall state some ground in law 
 for the demurrer, but the party demurring shall not, on the 
 argument of the demurrer, he 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. 
 
 " Form 28 in Appendix (C) " is Form 1 in Schedule (C) to the Eules of 
 Court, drawn up in 1874, under the Principal Act. The present Eule is 
 (with this alteration in the reference to the Form) Eule 2 of Order XXV. 
 of those Rules of Court. 
 
 The form of demurrer provided by s. 89 of the Common Law Pro- 
 cedure Act, 1852, does not contemplate the mention of any " ground in 
 law for the demurrer ' ' in the body of the demurrer. The ground of law was 
 to be stated in the margin, the demurrer simply alleging that the pleading 
 demurred to was " bad in substance." A reference to the new form in 
 Appendix (C) No. 28, will show that the old form has, in this respect, been 
 departed from. The defendant, as in cquity,t states expressly that he 
 " demurs " to the previous pleading or to some specific part of it ; and then 
 goes on to say " that the same is bad in law on the ground (here state a 
 ground of demurrer) and on other ground sufficient in law to sustain this 
 demurrer." The ground will thus be stated in the body of the demurrer 
 instead of in the margin as hitherto. A demurrer without a marginal 
 note or with only a frivolous ground stated might, under the former 
 practice, have been set aside on summons. J The form of the marginal 
 note was " one of the matters of law intended to be argued is, that," &c. 
 The new form, as we have seen, says that there are " othtr grounds." In 
 equity it was necessary to state one or more "causes of demurrer." 
 
 Rule 3. 
 A demurrer shall be delivered in the same manner 
 
 * Bulk n and Leake's Precedents of Pleading, p. 820, n. (a), 3rd ed. 
 f See the forms in Daniel's Chancery Forms, chaps. 14 and 18. 
 J Lucy v. Umbers, 3 Vovl., 732. See a form of such a summons in 
 Chitty's Forms, pp. 174, 475. 
 
 Daniel's Chancery Practice, 503.
 
 RULES OF COURT. 393 
 
 and within the same time as any other pleading in the 
 action. 
 
 This is Rule 3 of Order XXV. of the Eules of Court, drawn up in 
 1874, under the Principal Act. 
 
 A demurrer must be delivered (the idea of filing has been abandoned) 
 within eight days if it is a demurrer to a statement of claim ; within 
 three weeks if it is a demurrer to a statement of defence."* 
 
 Rule 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 pleading. And 
 so in every case where a party entitled to put in a further 
 pleading desires to demur to part of the last pleading of 
 the opposite party he shall combine such demurrer and 
 other pleading. 
 
 This is Rule 4 of Order XXV. of the Rules of Court, drawn up in 
 1874, under the Principal Act 
 
 This Rule is taken from the practice of the Court of Chancery. See 
 Chapter XXIII. of the Vol. of "Forms " accompanying Daniel's Chancery 
 Practice. The joint demurrer and plea in Chancery is headed, " The 
 demurrer and plea of A.B., the above-named defendant, to the Bill of 
 Complaint of the above-named plaintiff." The form then continues : 
 " I, the defendant A.B., do demur, &c., and for cause of demurrer do shew 
 that," &c. ; and I, the defendant A.B., do plead, and for plea say that," 
 &c. 
 
 Rule 5. 
 
 If the party demurring desires to be at liberty to plead 
 as well as demur to the matter demurred to, he may, 
 before demurring, apply to the Court or a Judge for an 
 order giving him leave to do so ; and the Court or Judge, 
 if satisfied that there is reasonable 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. 
 
 This is Rule 5 of Order XXV. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 * See Order XXII., Rule 1, Order XXIV., Rule 1.
 
 394 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 This Eulc is founded on section 80 of the Common Law Procedure Act. 
 1852. 
 
 " If satisfied." The enactment just cited requires that the party 
 or his attorney (if required) should make an affidavit that he believes in 
 the truth of his plea and goodness of his demurrer. 
 
 Rule 6. 
 
 When a demurrer either to the whole or part of a plead- 
 ing is delivered, either party may enter the demurrer 
 for argument immediately, and the party so entering such 
 demurrer shall on the same day give notice thereof to the 
 other 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 argu- 
 ment. 
 
 This is Rule 6 of Order XXV. of the Rules of Court drawn up in 1874, 
 under the Principal Act. 
 
 The Rule is taken from Order XIV., Rules 11, 14 and 15 of the Con- 
 solidated Order of the Court of Chancery, " ten days after delivery," being 
 however, substituted for 12 days after filing." 
 
 Rule 7. 
 
 While a demurrer to the whole or any part of a plead- 
 ing 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. 
 
 This is Rule 7 of Order XXV. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 Prior to this enactment an amendment of the pleading demurred to was, 
 at Common Law, generally allowed, as of course, on payment of costs. In 
 some cases it might be allowed even without costs, or on payment of 
 nominal costs.* 
 
 Rule 8. 
 Where a demurrer to the whole or part of any plead- 
 
 * Tomlinson v. fiallard, 4 Q.B., 642. 2 Archbold's Practice, p. 927.
 
 RULES OF COURT 395 
 
 ing is allowed upon argument, the party whose pleading is 
 demurred to shall, unless the Court otherwise order, pay 
 to the demurring party the costs of the demurrer. 
 
 This is Eule 8 of Order XXV. of the Kules of Court drawn up in 1874 
 under the Principal Act. 
 
 By the 3 and 4 Wm. IV., c. 42, s. 34, " When judgment shall be given 
 either for or against a plaintiff or a defendant upon any demurrer joined 
 in any action whatever, the party in whose favour such judgment shall be 
 given shall also have judgment to recover his costs in that behalf."* 
 
 Under this Statute the party obtaining judgment at Common Law is 
 entitled to the costs of the demurrer, whatever may be the results of the 
 cause, t 
 
 The present Rule appears to impose some restriction on this, as regards 
 the party demurring at Common Law, by the insertion of the words 
 " unless the Court otherwise order." 
 
 This Rule is copied from Order XIV., Rule 13, of the Consolidated 
 Orders of the Court of Chancery, (cited under Rule 9, infra], in which the 
 words, " unless the Court shall otherwise direct," occur. 
 
 Rule 9. 
 
 If a demurrer to the whole of a statement of claim 
 be allowed, the plaintiff, subject to the power of the Court 
 to allow the statement of claim to be amended, shall pay to 
 the demurring defendant the costs of the action, unless the 
 Court shall otherwise order. 
 
 ( This is Rule 9 of Order XXV. of the Rules of Court drawn up in 1874 
 uhder the Principal Act. 
 
 This Rule is in accordance with the Chancery Practice. " Where a 
 demurrer to the whole or part of a Bill is allowed upon argument the 
 plaintiff, unless the Court shall otherwise direct, shall pay to the demurring 
 party the costs of the demurrer, and, when the demurrer is to the- whole Bill, 
 tfo cost of the suit also." Compare Reg. Gen. Hil. T. 1853, Rule 62. 
 
 Eule 10. 
 
 Where a demurrer to any pleading or part of a plead- 
 ing is allowed in any case not falling within 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 
 
 * See aho the older Stat. 8 and 9 Wm. III., c. 11, s. 2. 
 t Bentley v. Dawes, 10 Ex. 347 ; Burdon v. Flour, 7 D. P. and C. 786. 
 1 Lush's Practice, p. 789.
 
 396 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 out of the pleadings, and the rights of the parties shall be 
 the same as if it had not been pleaded. 
 
 This is Rule 10 of Order XXV. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 " In any case not falling within the preceding Rule," i.e. in any case 
 where the demurrer is not to the whole o/the statement of claim. 
 
 The Rule embodies substantially the practice as to " partial demurrers " 
 of the Court of Chancery. (See " Daniel's Chancery Practice," 513, 514.) 
 
 Rule 11. 
 
 Where a demurrer is overruled the demurring party 
 shall pay to the opposite party the costs occasioned by the 
 demurrer, unless the Court shall otherwise direct. 
 
 This is Rule 11 of Order XXV. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 See Rule 8 of this Order, and the Statutes there cited. 
 
 This Rule appears to impose some restrictions on the right of the party 
 at Common Law, whose pleading is demurred to, to recover the costs of 
 the demurrer, by the insertion of the words, " unless the Court shall other- 
 wise direct." 
 
 The Rule is founded on Order XIV., Rule 12 of the Consolidated Orders 
 of the Court of Chancery : " When any demurrer is overruled, the de- 
 fendant shall pay to the plaintiff the taxed costs occasioned thereby, 
 unless the Court shall otherwise direct." 
 
 Rule 12. 
 
 Where a demurrer is overruled, the Court may make 
 such order, and upon such terms as to the Court shall seem 
 right, for allowing the demurring party to raise by plead- 
 ing any case he may be desirous to set up in opposition to 
 the matter demurred tc. 
 
 This is Rule 12 of Order XXV. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 The state of the law prior to this enactment was, that, if the judgment in 
 demurrer on a single issue were for the defendant, it was a final judgment 
 against the plaintiff of " nil caplatper breve." 
 
 The plaintiff also might sign interlocutory or final judgment, as the case 
 might be, if the judgment in demurrer on a single issue were given in his 
 favour.* 
 
 The present Rule will enable the demurring party to obtain leave to 
 plead to the matter demurred to after the demurrer has been overruled. 
 
 This practice is derived from that of the Court of Chancery. There the 
 
 * See bold's Practice, p. 934.
 
 RULES OF COURT. 397 
 
 defendant, after his demurrer was overruled, might, by leave of the Court, 
 make the same defence by plea.* 
 
 Rule 13. 
 
 A demurrer shall be entered for argument by delivering 
 to the proper officer a memorandum of entry in the Form 
 No. 29 in Appendix (C). 
 
 " Form No. 29 in Appendix (C)" is form No. 2 in Schedule (C) to the Rules 
 of Court drawn up in 1874 iinder the Principal Act. The present Rule 
 (with this alteration in the reference to the form) , is Rule 1 3 of Order XXV. 
 of those Rules of Court. 
 
 OBDER XXIX. 
 
 DEFAULT OF PLEADING. 
 
 Rule 1. 
 
 If the plaintiff, being bound to deliver a statement 
 of claim, does not deliver the same within the time 
 allowed for that purpose, the defendant may, at the ex- 
 piration of that time, apply to the Court or a Judge to 
 dismiss the action with costs for want of prosecution, 
 and on the hearing of such application the Court or 
 Judge may, if no statement of claim have been deli- 
 vered, 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. 
 
 This is Rule 1 of Order XXVI. of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 A plaintiff is not " bound" to deliver a statement of claim where the de- 
 fendant has stated in his Memorandum of Appearance that he does not 
 require any. 
 
 " Dismissing an action for want of prosecution is better known by the 
 familiar appellation of " judgment of non pros," which is denned by Mr.Arch- 
 boldt to mean " a final judgment against the plaintiff for cosls only, signed 
 by the defendant, whenever the plaintiff, in any stage of the action, neglects 
 to prosecute the suit or part of it within the time limited by the practice 
 of the Court for that purpose." 
 
 The phrase, dismissing a bill for want of prosecution, is a familiar one in 
 
 * Mitford on Pleading, 216. Daniel's Chancery Practice, 517. 
 f Archbold's Practice, p. 1479.
 
 398 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Equity. As to the cases in which a defendant may move the Court that a 
 hill bo dismissed with costs for want of prosecution, see Order XXXIII. 
 (III.) cf the Consolidated Orders of the Court of Chancery. 
 
 As already stated, after judgment of non pros a plaintiff might commence 
 a new action against a defendant for the same cause.* An order to dismiss 
 a bill for want of prosecution could be pleaded in bar to a new bill for the 
 same matter, t 
 
 Rule 2. 
 
 If the plaintiff's claim be only for a debt or liquidated 
 demand, and the defendant does not, within the time 
 allowed for that purpose, deliver a defence or demurrer, 
 the plaintiff may, at the expiration of such time, enter 
 final judgment for the amount claimed, with costs. 
 
 This is Eule 2 of Order XXVI., of the Rules of Court drawn up in 
 1874 under the Principal Act. 
 
 The analogous proceeding in the case of default of appearance will be 
 found in Order XIII., Rule 5. (See Notanda.) 
 
 By section 93 of tae Common Law Procedure Act, " in actions where 
 the plaintiff seeks to recover a debt or liquidated demand in money, judg- 
 ment by default shall be final." 
 
 It is apprehended that a defendant is not bound, under Order XXII., 
 Rule 3, to deliver a statement of defence, where ho has waived his right 
 to a statement of claim. 
 
 Rule 3. 
 
 When 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 preceding Rule, the 
 plaintiff may enter final judgment against the defendant 
 so making default, and issue execution upon such judg- 
 ment without prejudice to his right to proceed with his 
 action against the other defendants. 
 
 This is Rule 3 of Order XXVI., of the Rules of Court drawn up in 1874 
 under the 1'rinciDal Act. 
 
 See Order XIII., Rule 4, where a similar principle is applied. (Seo the 
 note to that Rule, p. 326). The principle is extended here to a debt or 
 liquidated demand, when the writ is not specially endorsed. 
 
 Rule 4. 
 If the plaintiff's claim be for detention of goods and 
 
 * Archbold's Practice, p. 1482. 
 
 f Daniel's Chancery Practice, p. 714.
 
 jtULES OF COURT. 399 
 
 pecuniary 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 issue 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 writ 
 of inquiry, the value and amount of damages, or either 
 of them, sh 11 be ascertained in any way in which any 
 question arising in an action may be tried. 
 
 This is Rule 4 of Order XXVI., of the Eules of Court drawn up in 1874 
 under the Principal Act. 
 
 Where the action proceeds in a District Registry, and the plaintiff is 
 entitled to enter interlocutory judgment under this Rule, such inter- 
 locutory judgment, and, where damages have been assessed, final judgment 
 is to be entered in tue District Registry, unless the Court or a Judge shall 
 otherwise order. Order XXXV., Rule 2. 
 
 The proceeding in this case is identical with that prescribed by Order 
 XIII., Rule 6, in default of appearance. See the note to that Rule, 
 pp. 328, 329. 
 
 The Court or a Judge will probably in all cases when the damages are 
 " substantially " matter of calculation refer the ascertaining of the quantum 
 to a Master or Referee or District Register. 
 
 Rule 5. 
 
 When in any such action as in Rule 4 mentioned there 
 are several defendants, if one of them make default as 
 mentioned in Rule 2, the plaintiff may enter an inter- 
 locutory judgment against the defendant so making default, 
 and proceed wi i h his action against the others. And in 
 such case, damages against the defendant making default 
 shall be assessed at the same time with the trial of the 
 action or issues therein against the other defendants, 
 unless the Court or a Judge shall otherwise direct. 
 
 This is Rule 5 of Order XXVI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 The principle applied in Order XIII., Rule 4, is here still further ex- 
 tended to actions t'ur unliquidated damages. The practice is, that, when 
 judgment by default is signed as to part, and issue is joined as to the 
 residue, the jury who try the issue assess the damages as to the whole. 
 
 * See the note to Order XIII., Rule 6.
 
 400 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 So if there be demurrer to one count and issue is joined as to the residue, 
 the jury who try the issue in fact will assess damages on the demurrer.* 
 
 Rule 6. 
 
 If the plaintiff's claim be for a debt or liquidated de- 
 mand, and also for detention of goods and pecuniary 
 damages, or pecuniary damages only, and the defendant 
 makes default as mentioned in E-ule 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. 
 
 This is Rule 6 of Order XXVI. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 A joinder of liquidated and unliquidated demands in the same action is 
 here contemplated. Each is to be dealt with separately, as if there were 
 two distinct actions. In the case of the claim for unliquidated damages, 
 a, writ of inquiry or reference is necessary. 
 
 Rule 7. 
 
 In an action for the recovery of land, if the defendant 
 makes default as mentioned in Rule 2, the plaintiff 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. 
 
 This is Rule 7 of Order XXVI. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 See as to this action Order XIX., Rule 15, which introduces a new 
 practice by sanctioning statements of defence in this action. Under 
 section 178 of the Common Law Procedure Act, 1852, there could be no 
 " default in pleading " in the case of ejectment. 
 
 Rule 8. 
 
 Where the plaintiff has indorsed a claim for mesne 
 profits, arrears of rent, or damages for breach of contract 
 upon a writ for the recovery of land, if the defendant 
 
 * See Codrington v. Lloyd, 1 P. and D. 157; 2 .Archbold's Practice, 
 p. 990.
 
 KTJLES OF COURT. 401 
 
 makes default as mentioned in Rule 2, or, if there be more 
 than one defendant, some or one of the defendants make 
 such default, the plaintiff may enter judgment against the 
 defaulting defendant or defendants, and proceed as men- 
 tioned in Rules 4 and 5. 
 
 This is Rule 8 of Order XXVI. of the Kules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 Order XVII., Eule 2, sanctions joining in one action claims for mesne 
 profits, arrears of rent, and damages for breach of contract in relation to 
 the same premises, with ejectment. 
 
 Similar provisions to those contained in this Eule are contained in 
 Order XIII., Eule 8, in the case of default of appearance. 
 
 The principle of Order XIII., Eule 4, is applied in this Eule. 
 
 As the claims indorsed on the writ are for unliquidated damages, an 
 inquiry into their quantum is necessary. (See note to Eule 6 of this Order.) 
 
 Rule 9. 
 
 In Probate actions, if any defendant make default in 
 filing and delivering a defence or demurrer, the action 
 may proceed, notwithstanding such default. 
 
 This is Eule 9 of Order XXVI. of the Eules of Court, drawn up in 1874 
 under the Principal Act. 
 
 See Order XIII., Eule 9, in which the same principle is applied. 
 
 Rule 10. 
 
 In all other actions than those in the preceding Rules 
 of this Order mentioned, if the defendant makes default 
 in delivering a defence or demurrer, the plaintiff may 
 set down the action on motion for judgment, and such 
 judgment shall be given as upon the statement of claim 
 the Court shall consider the plaintiff to be entitled to. 
 
 This is Eule 10 of Order XXVI. of the Eules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 As to motion for judgment, see Order XL. 
 
 Rule 11. 
 
 Where, in any such action as mentioned in the last 
 preceding Rule, there are several defendants, then, if one 
 of such defendants make such default as aforesaid, the 
 26
 
 402 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 plaintiff may either set down the action at once on motion 
 for judgment against the defendant so making default, or 
 may set it down against him at the time when it is entered 
 for trial or set down on motion for judgment against the 
 other defendants. 
 
 This is Rule 11 of Order XXVI. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 See Order XIII., Rule 4, as to default by one of several defendants, and 
 Rules 3, 5 and 8 of this Order. As to motion for judgment see 
 Order XL. 
 
 Rule 12. 
 
 If the plaintiff does not deliver a reply or demurrer, 
 or any party does not deliver any subsequent pleading, or 
 a demurrer, within the period allowed for that purpose, 
 the pleadings shall be deemed to be closed at the expira- 
 tion of that period, and the statements of fact in the 
 pleading last delivered shall be deemed to be admitted. 
 
 This is Rule 12 of Order XXVI. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 This is new. 
 
 Rule 13. 
 
 In any case in which issues arise in an action other 
 than between plaintiff and defendant, if any party to any 
 such issue makes default in delivering any pleading, the 
 opposite party may apply to the Court or a Judge for such 
 judgment, if any, as upon the pleadings he may appear to 
 be entitled to. And the Court may order judgment to be 
 entered accordingly, or may make such other order as may 
 be necessary to do complete justice between the parties. 
 
 This is Rule 1 3 of Order XXVI. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 This Rule carries out the recommendation of the Judicature Commis- 
 sion * : " We think that either " (? any) " party should be at liberty 
 to apply at any time, either before or after pleading, for tuch order as he 
 may, upon the admitted facts, be entitled to." 
 
 * First Report, p. 12.
 
 RULES OF COURT. 403 
 
 Rule 14. 
 
 Any judgment by default, whether under this Order 
 or under any other of these Rules, may be set aside by the 
 Court or a Judge, upon such terms as to costs or otherwise 
 as such Court or Judge may think fit. 
 
 This is Rule 14 of Order XXVI. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 A regular judgment may be set aside at Common Law upon an affidavit 
 of merits, stating that "^the defendant has a good defence to this action 
 upon the merits." * It is usually set aside upon such terms as will place 
 the plaintiff as nearly as possible in the same situation as if the action had 
 proceeded in its regular course, f In ordinary cases it is almost a matter 
 of course to grant the application for setting aside a judgment. J It is, 
 however, wholly discretionary with the Court to grant or not to grant it. 
 
 ORDER XXX. 
 
 PAYMENT INTO COURT IN SATISFACTION. 
 
 Rule 1. 
 
 Where any action is brought to recover a debt or 
 damages, any defendant may at any time after service of 
 the writ, 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. 
 
 This is Rule 1 of Order XXVII., of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 " Action to recover a debt or damages," This is a different definition 
 of the cases in which money may be paid into Court from that contained 
 in s. 70 of the Common Law Procedure Act, 1852. 
 
 The words " any action for damages," would, of course, include actions for 
 assault and battery, false imprisonment, libel, slander, malicious arrest 
 or prosecution, or debauching of the plaintiff's daughter or servant,|| which 
 are expressly exceptedby s. 70 of the Common Law Procedure Act, 1852. 
 (The exception of libel did not extend to cases of libels in newspapers, 
 6 & 7 Viet., c. 96, i. 2.) 
 
 * Lane v. Isaacs, 3 Dowl. 652. 
 
 t See Anon, 3 Doug. 431 ; Smith v. Blundell, 1 Chit. Rep. 226. 
 
 I Wood v. Cleveland, 2 Salk., 518. 
 
 An assault, upon the plaintiff's son was held not to be within the 
 exception, Newton v. Holford, 2 D. and L., 654. 
 
 || Actions for crim. con., which are also excepted, were abolished by the 
 20 & 21 Viet., c. 85, s. 59.
 
 404 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 " At any time after service of the -writ, and before the time of de- 
 livering his defence." See the note to the next Rule. 
 
 " At any later time." This may create a difficulty if the plaintiff 
 accepts the payment in satisfaction of his claim, as, under Rule 4, he can 
 only do so " before reply." 
 
 Payment into Court "as amends" was allowed at a time when such 
 payment could not be entered upon the record by way of plea.* 
 
 " Payment into Court shall be pleaded in the defence." This is, of 
 course, unnecessary, when the payment is before defence. 
 
 Rule 2. 
 
 Such sum of money shall be paid to the proper officer, 
 who shall give a receipt for the same. If such payment be 
 made before delivering his defence, the defendant shall 
 thereupon serve upon the plaintiff a notice that he has 
 paid in such money, and in respect of what claim, in the 
 Form No. 5 in the Appendix (B) hereto. 
 
 This is Rule 2 of Order XXVII., of the Rules of Court, drawn up in 
 1874, under the Principal Act, "Appendix (B)," being substituted for 
 " Schedule B," in order to bring the Rule into harmony with the present 
 Act. 
 
 The first clause of this Rule is taken from the first part of s. 72 of the 
 Common Law Procedure Act, 1852. 
 
 The present order introduces an entirely new practice of noticing the 
 plaintiff of payment into Court before the delivery of the defence. The 
 modus operandi under the former practice is thus described by Mr. Arch- 
 bold : " Prepare d plea of payment into Court. Take the plea to the 
 Master's office. The officer there will give you an authority to 
 Messieurs Hoare, bankers, in Fleet Street, to receive the money. The 
 clerk at Messieurs Hoare' s will give you a printed receipt. Take such 
 receipt and the plea to the Master's office and the clerk there will sign a 
 receipt in the margin of the plea for the money paid into Court. Pay such 
 clerk the proper feet upon payment of money into Court. Deliver the plea 
 to the plaintiff's attorney or agent, as in ordinary cases." J The same (or 
 a similar) method of proceeding will, of course, still be necessary, where 
 the payment into Court is made " at the time of delivering the defence " 
 (Rule 1). (See Notanda.) 
 
 No form, it will be seen, is given of a plea of payment into Court. The 
 notice, however, closely follows the form of plea given in s. 71 of the 
 Common Law Procedure Act, 1852, and it is apprehended that that form, 
 mutatis mutandis, will be still sufficient. 
 
 Rule 3. 
 Money paid into Court as aforesaid shall be paid out 
 
 * i.e., before 3 & 4 "Wm. IV, c. 42, s. 21. See Tattersatt v. Parkinson, 
 16 M. & W. pp. 752, 759 ; 1 Wins. Saund., 33 g. 
 t Sec 7 Wm. IV. & 1 Viet., c. 30, s. 9. 
 j Archbold's Practice, p. 1364.
 
 RULES OF COURT. 405 
 
 to the plaintiff, or to his solicitor on the written authority 
 of the plaintiff. No affidavit shall be necessary to verify 
 the plaintiff's signature to such written authority, unless 
 specially required by the officer of the Court. 
 
 This is Rule 3 of Order XXVII., of the Eules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The first clause of this Rule is taken from the latter part of section 72 
 of the Common Law Procedure Act, 1852, the words " unless otherwise 
 ordered by a Judge " being added. The second clause of the Rule is 
 taken from Reg. Gen. Hil. T., 1853, Rule II, the words " officer of the 
 Court" being substituted for " Master." 
 
 Rule 4. 
 
 The plaintiff, if payment into Court is made before de- 
 livering a defence, may within 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 which 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 
 accepted in satisfaction of the entire cause of action, to tax 
 his costs, and in case of non-payment within forty-eight 
 hours, to si<m judgment for his costs so taxed. 
 
 This is Rule 4 of Order XXVII. of the Rules of Court drawn up in 
 1874 under the Principal Act, " Appendix B " being substituted for 
 " Schedule B," in order to adapt the Rule to the present Act. 
 
 The Rule is taken from section 73 of the Common Law Procedure Act, 
 1852. 
 
 The 73rd section, however, only 3ontemplated an acceptance of the sum 
 paid into Court " after the delivery of a plea of payment of money into 
 Court, but before reply ; the present Rule contemplates such an accep- 
 tance either before a defence is delivered, or after it. 
 
 " May before reply."* See notes to Rules 1 and 2 of this Order. 
 
 It will be seen that the payment may still be accepted in satisfaction of 
 part of the plaintiff's claim, as well as of the whole. 
 
 The notice to the defendant is new. 
 
 ORDER XXXI. 
 
 DISCOVER? AND IN SPEC! ION. 
 
 Rule 1. 
 The plaintiff may, at the time of delivering his 
 
 * Query. What if the payment is made after the reply ?
 
 40G SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 statement of claim, or at any subsequent time not later 
 than the close of the pleadings, and a defendant may, at 
 the time of delivering his defence, or at any subsequent 
 time not later than the close of the pleadings, without 
 any order for that purpose, and either party may at any 
 time, by leave of the Court or a Judge, deliver interroga- 
 tories 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 required to answer : Provided that no 
 party shall deliver more than one set of interrogatories 
 to the same party without an order for that purpose. 
 
 This Rule is a more elaborate statement of the principle laid down in 
 the first part of Rule 25 of the Principal Act. " Subject to any Rules of 
 Court, a plaintiff in any action shall be entitled to exhibit interrogatories 
 to and obtain a discovery from any defendant, and any defendant shall 
 be entitled to exhibit interrogatories to and obtain discovery frjm a plain- 
 tiff or any other party " 
 
 The Rule is copied' from Rule 1 of the XXVIIIth Order of the Rules 
 of Court drawn up in 1874 under the Principal Act. 
 
 Mr. Day recommended* that, when the Judge had decided that some 
 interrogatories should be put, it should be left to the party interrogating 
 to put, at his own cost, such questions as he might be advised, instead of 
 taking up the valuable time of a Judge at Chambers in ascertaining amid 
 the hurry and confusion, first, not merely whether any interrogatories at 
 all ought to be delivered, but also whether the particular interrogatories 
 were themselves severally proper; a practice which also involved " parad- 
 ing beiore one's opponent the hoped-for results of questions." He con- 
 sidered that this would be " more convenient, and useful, und practice, 
 and more congruous with that in consimili ca-su in Chancery." 
 
 The Legislature has, pro tanto, improved upon Mr. Day's suggestion by 
 doing away altogether with the necessity for a Judge's order, when the 
 interi og-atories are delivered with the statement of claim, or of defence, or 
 not later than the close of the pleadings. The intervention of the Court 
 or of a Judge need not in future be invoked except when it is sought to ad- 
 minister interrogatories before or after the above-mentioned limits of time. 
 'By the provision that only one set of interrogatories can be delivered to 
 the same party without an ord c r, and also by the next Rule a check 
 will be put upon any abuse of the pri vilege accorded by the present Rule. 
 
 " With a note at the foot thereof." See the form No. 7 in Appendix 
 (B). 
 
 Rule 2. 
 
 The Court in adjusting the costs of the action shall, at the 
 instance of any party, inquire or cause inquiry to be made 
 
 * Common Law Procedure Acts. pp. 308, 309.
 
 RULES OF COURT. 407 
 
 into the propriety of exhibiting such interrogatories, and 
 if it is the opinion of the taxing master or of the Court or 
 Judge that such interrogatories have been exhibited un- 
 reasonably, vexatiously, or at improper length, the costs 
 occasioned by the said interrogatories and the answers 
 thereto shall be borne by the party in fault. 
 
 This Rule is a re-enactment of the second part of Eule 25 of the Prin- 
 cipal Act. 
 
 The Rule is founded on the principles laid down in Order XL., Rules 
 9 and 10 of the Consolidated Orders of the Court of Chancery. 
 
 See the note to Ruin 1 . 
 
 Rule 3. 
 
 Interrogatories may be in the Form No. 7 in Appendix 
 (B) hereto, with such variations as circumstances may 
 require. 
 
 This is Rule 2 of the XX VHIth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act, " Appendix B" being substituted for 
 " Schedule B," in order to adapt the Rule so the present Act. 
 
 The form is taken from the one in use in Chancery practice, as will be 
 seen on comparing it with the forjms given in Daniel's Chancery Forms, 
 p. 359, and with Chitty's Common Law Forms, p. 168. 
 
 Eule 4. 
 
 If any party to an action be a body corporate or a 
 joint-stock Company, whether incorporated or 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 interro- 
 gatories to any member or officer of such corporation, 
 company, or body, and an order may be made accordingly. 
 
 This is Rule 3 of the XXVIIIth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 This Rule is copied from section 57 of the Common Law Procedure Act, 
 1852, so far as "bodies corporate" are concerned. It was neld in 
 McKewan P. 0. v. Holt, 4 H. and N., 738, that the words of that enact- 
 ment, "any of the officers of a body corporate" extended to the public 
 officer of a joint stock bank under 7 Goo. IV., c. 46. It will be seen that 
 by the present Rule provision is expressly made for administering inter-
 
 408 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 rogatories " to any member or officer" of " a joint stock company, whether 
 incorporated or not.' ' Provision is also made for administering interroga- 
 tories "to any member or officer" of " any other body of persons em- 
 powered by law to sue or be sued, whether in its own name or in the name 
 of any officer or other person." 
 
 Rule 5- 
 
 Any party called upon to answer interrogatories, 
 whether by himself or by any member or officer, may, 
 within four days after service of the interrogatories, apply 
 at chambers to strike out any interrogatory, on the ground 
 that it is scandalous or irrelevant, or is not put bond 
 fide for the purposes of the action, or that the matter 
 enquired after is not 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. 
 
 This is a more elaborate statement of the principle laid down in the 
 second portion of the first part of Rule 25 of the Principal Act : " Any 
 party shall be entitled to object to any interrogatory on the ground of 
 irrelevancy, and the Court or a Judge, if not satisfied that such interroga- 
 tory is relevant to some issue in the cause, may allow such objection.' 
 
 The Eule is copied from Rule 4 of the XXVIIIth Order of the Rules of 
 Court, drawn up in 1874 under the Principal Act. 
 
 The Rule is founded on the principles laid down in Order XXXV., 
 Rule 60, and Order XVI., Rule 21 of the Consolidated Orders of the Court 
 of Chancery. See also Order XXVII., Rule 1, of this Schedule. 
 
 Rule 6. 
 
 Interrogatories shall be answered by affidavit to be 
 filed within ten days, or within such further time as a 
 Judge may allow. 
 
 This is Rule 6 of the XXVIIIth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. Section 51 of the Common Law Proce- 
 dure Act, 1854, requires the opposite party "within ten days, to answer 
 the questions in writing, by affidavit to be filed." The present Rule gives 
 a Judge power to vary the time. 
 
 Rule 7. 
 
 An affidavit in answer to interrogatories shall, unless 
 otherwise ordered by a Judge, if exceeding three folios, be
 
 RULES OF COURT. 
 
 409 
 
 printed, and may be in the Form No. 8 in Appendix (B) 
 hereto, with such variations as circumstances may require. 
 
 This is Rule 6 of the XXVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act, " Appendix B.' 1 being substituted for 
 " Schedule B," in order to adapt the Rule to the Present Act. 
 
 The form is similar, mutatis mutandis, to that given in Archbold's Forms, 
 p. 171. 
 
 By Rule 11 of the Order of March 6, 1860, the Court of Chancery- 
 enjoins that " where a plaintiff is required to answer interrogatories, he is 
 to get his answer printed." 
 
 The present Ruleexcepts affidavits containing less than 3 folios (or 216 
 words.) 
 
 Any objection to answering any interrogatory may 
 be taken, and the ground thereof stated in the affidavit. 
 
 This is Rule 7 of the XXVIIIth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act, "mentioned in the preceding Rule," 
 being expunged as unnecessary. 
 
 This was the Rule embodied in the practice at Common Law, under 
 the Common Law Procedure Act, 1854, s. 51. The answers were 
 required to follow the order of the interrogatories and answers, and assign 
 reasons for non-answering each interrogatory specifically. Chester v. 
 Worthy, 18 C. B, 239. 
 
 Rule 9. 
 
 No exceptions shall be taken to any affidavit in answer, 
 but the sufficiency or otherwise of any such affidavit objected 
 to as insufficient shall be determined by the Court or a 
 Judge on motion or summons. 
 
 This Rule is a re-enactment of the last portion of the first part of Rule 
 25 of the Principal Act, the words " any affidavit in," being inserted before 
 *' answer, and such affidavit," being substituted for " any answer." 
 
 The Rule contains a reference to the Chancery Practice of " excepting " 
 to answers to interrogatories, and for the future forbids it. 
 
 If the plaintiff' in equity, upon due examination of the defendant's answer 
 to his interrogatories, found that it contained scandalous matter or was 
 insufficient, he might have filed " exceptions " to it, stating the particular 
 points to which he took exception. Separate exceptions were required to 
 separate answers. The exceptions were heard in open Court, and if 
 allowed the defendant had to answer further. After a third insufficient 
 answer the defendant stood committed for contempt. 
 
 The defendant might also have excepted to the plaintiffs' answer to his 
 interrogatories.* 
 
 " Determined by the Court or a Judge." See the next Rule. 
 
 *See as to, " Exceptions to answers," Daniel's Chancery Practice, Chap. 
 XVII. section 4, and Chap. XXXIV, section 1.
 
 410 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 10. 
 
 If any person interrogated omits to answer, or answers 
 insufficiently, the party interrogating may apply to the 
 Court or a Judge for an order requiring him to answer, 
 or to answer further, as the case may be. And an 
 order may be made requiring him to answer, or answer 
 further, either by affidavit or by viva voce examination, as 
 the Judge may direct. 
 
 This is Rule 8 of the XXVIIIth Order of the Rules of Court drawn up, in 
 1874, under the Principal Act. See the 53rd section of the Common Law 
 Procedure Act, 1854, as to the viva voce examination of the interrogated 
 party. 
 
 " Answer further." This like " exceptions to answer," is an expression 
 borrowed from Chancery Practice. The "further answer" extended only to 
 interrogatories which had not been answered or answered sufficiently pre- 
 viously. Repetition of anything contained in the former answer was 
 regarded as " impertinent," and the defendant might have been made to 
 pay the costs occasioned by the introduction of the impertinent matter.* 
 
 The present Rule follows the Common Law Practice, although it uses 
 Chancery phrases. 
 
 By s. 53 of the Common Law Procedure Act, 1854, "in case of omis- 
 sion, without just cause, to answer sufficiently written interrogatories, it 
 shall be lawful for the Court or a Judge, at their or his discretion, to 
 direct an oral examination of the interrogated party, as to such points as 
 they or he may direct, before a Judge or a Master. An application under 
 this section should be made at chambers in the first instance." f The 
 present Rule gives the party interrogating the alternative of applying for 
 a further affidavit in lieu of an oral or v ivd voc.e examination of his opponents. 
 
 Rule 11. 
 
 It shall be lawful for the Court or a Judge at any 
 time during the pendency therein of any action or pro- 
 ceeding, 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 question in such action or 
 proceeding, as the Court or Judge shall think right ; and 
 the Court may deal with such documents, when pro- 
 duced, in such manner as shall appear just. 
 
 * 15 & 16 Viet., c. 86,s. 17. See as to " Further answers," Daniel's 
 Chancery Practice, chap. XVII., section 5. 
 t Bender v. Zimmerman, L. J. 29, Ex. 244.
 
 RULES OF COURT. 411 
 
 This Rule is a re-enactment of Rule 27 of the Principal Act. 
 
 The Rule is copied from s. 86 of the Chancery Amendment Act, 1852, 
 (15 and 16 Viet., c. 86). The section only applies to production hy a 
 defendant. S. 20 of the same Act applies to production hy plaintiffs, 
 but only after answer hy the defendant. The present Rule applies to 
 " production by any party" at any time during the pendency of any action 
 or proceeding. " Production on oath" means production accompanied hy 
 affidavit. A form of such an affidavit is given in the Schedule to the regula- 
 tions as to business at Chancery Chambers of August 8th, 1857, and will be 
 found set out in full at p. LIX. of Morgan and Chute's Chancery Acts and 
 Forms (4th edition). 
 
 Rule 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 documents which 
 are or have been in his possession or power, relating to 
 any matter in question in the action. 
 
 This is Rule 9 of the XXVTIIth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 The Common Law enactment as to the " discovery of documents" is 
 section 50 of the Common I.aw Procedure Act, 1854, to which and to Mr. 
 Day's notes* upon it, reference should be made. 
 
 This Rule is taken from that section of the Common Law Procedure 
 Act, 1852, with the alteration, that no affidavit is required. " Discovery 
 on oath " in this section is equivalent to " production on oath " in Rule 
 11. Indeed, the two Rules are identical in their object ; but the jurisdic- 
 tion of the Court of Chancery under the Chancery Law Amendment Act, 
 1852, was not ousted by, but concurrent with, that of the Common Law 
 Courts, under the Common Law Procedure Act, 1852. 
 
 Rule 13. 
 
 The affidavit to be made by a party against whom 
 eucb order as is mentioned in the last preceding Rule has 
 been made, shall specify which, if any, of the documents 
 therein mentioned, he objects to produce, and it may be in 
 the Form No. 9 in Appendix (B) hereto, with such varia- 
 tions as circumstances may require. 
 
 This is Rule 10 of the XXVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act, " Appendix B," being substituted 
 for " Schedule B," in order to adapt the Rule to the present Act. 
 
 " Such order as is mentioned in the last preceding Rule." It is not a 
 
 * PP. 295-304, 4th edition.
 
 412 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 little curious, as illustrating what a remarkable mosaic the present 
 Schedule is, that the form No. 9, in Appendix (A), hereto is copied 
 verbatim from the form prescribed, as we have seen, to be used under 
 sections 18 and 20 of the Chancery Amendment Act, 1852, and would 
 therefore appropriately belong to Rule 11 of this Schedule, which is 
 copied from that enactment ! 
 
 Rule 14 
 
 Every party to an action or other proceeding shall be 
 entitled, at any time before or at the hearing thereof, by 
 notice in writing, to give notice to any other party, in 
 whose pleadings or affidavits 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 party 
 not complying with such notice shall not afterwards be at 
 liberty to put any such document in evidence 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. 
 
 This Rule is a re-enactment of Rule 26 of the Schedule to the Principal 
 Act. 
 
 See note to Rule 1 8 of this Order, infra. 
 
 By Order XIX., Rule 24, it is sufficient in any pleading to state the 
 effect of any material document as briefly as possible. The present Rule 
 supplements that Rule very usefully, by enabling the opposite party to 
 inspect the document so referred to by a simple interchange of notices 
 between the parties. In case the party noticed to produce the document 
 for inspection, omits or objects to give inspection, the opposite party may, 
 under Rule 17 of this Order, infra, apply to a judge for an order for 
 inspection. 
 
 It is a rule of the Court of Chancery that a party can only have inspec- 
 tion of documents which relate to his own case. 
 
 Rule 15. 
 
 Notice to any party to produce any documents referred 
 to in his pleading or affidavits shall be in the Form 
 No. 10 in Appendix (B) hereto. 
 
 This is Rule 11 of the XXVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act, " Appendix B," being substituted 
 for " Schedule B," in order to adapt the Rule to the present Act.
 
 RULES OF COURT. 413 
 
 This notice is, technically speaking, not a notice to produce, but a 
 notice to inspect. The expression "notice to produce" was used in the 
 case of a summons in equity to inspect at chambers. See Daniel's " Forms," 
 1191. The form is probably framed on that model. 
 
 Rule 16. 
 
 The party to whom such notice is given shall, within 
 two days from the receipt of such notice, if all the docu- 
 ments therein referred to have been set forth by him in 
 such affidavit as is mentioned in Rule 13, or if any of the 
 documents 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 within three days from 
 the delivery thereof at which the documents, or such 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 
 documents he objects to produce, and on what ground. 
 Such notice may be in the Form No. 11 in Appendix 
 (B) hereto, with such variations as circumstances may 
 require. 
 
 This is Rule 12 of the XXVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act, " Rule 13 " and " Appendix B," being 
 substituted for " Rule 10" and " Schedule B," in order to adapt the Rule 
 to the present Act. 
 
 The form of notice states that the documents can be inspected at 
 the office of the solicitor of the party. " The Court of Chancery," Mr. 
 Daniel observes,* "now usually orders the production at the place of 
 business of the party's solicitors." 
 
 Rule 17. 
 
 If the party served with notice under Eule 15 
 omits to give such notice of a time for inspection, or 
 objects to give inspection, the party desiring it may apply 
 to a Judge for an order for inspection. 
 
 This is Rule 1-3 of the XXVIIIth Order of the Rules of Court drawn 
 up in 1874 under the Principal Act, "Rule 15" being substituted for 
 " Rule 11," in order to adapt the Rule to the present Act. 
 
 * Daniel's Chancery Practice, p. 1,696.
 
 414 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 This is the first appearance of a Judge upon the scene in this new 
 practice of obtaining inspection. 
 
 The great advantage of the new system of inspection is, that an appli- 
 cation for an order to inspect, either to the Court or a Judge, is unnecessary. 
 The proceeding is a friendly one inter paries, conducted by a series of 
 notices on either side. It is not until the party noticed to give inspection 
 omits or refuses to give it, that it becomes necessary to have recourse to a 
 judge. This is a decided improvement on s. 6 of Lord Brougham's 
 Evidence Act (14 & 15 Viet., c. 99), s. 50 of the Common Law Procedure 
 Act, 1854, and ss. 18 & 20 of the Chancery Amendment Act, 1852, all of 
 which require an application to the Court or to a Judge at Chambers for 
 an order to inspect in the first instance. 
 
 Rule 18. 
 
 Every application for an order for inspection of 
 documents shall be to a Judge ; and except in the case 
 of documents referred to in the pleadings or affidavits 
 of the party against whom the application is made, or 
 disclosed in his affidavit of documents, such application 
 shall be founded upon an affidavit showing of what 
 documents inspection is sought, that the party applying 
 is entitled to inspect them, and that they are in the 
 possession or power of the other party. 
 
 This is Rule 14 of the XXVIIIth Order of the Rules of Court drawn 
 up in 1874, under the Principal Act. 
 
 This Rule is very obscure. Frequently in these Rules the first sentence 
 of a Rule is a mere repetition, in slightly altered phraseology, of the last 
 sentence of the preceding one. Let us hope that such is the case in the 
 present instance. If the present Rule is to be considered as incorporated 
 with Rule 14, the benefits of the new practice will be very slight indeed. 
 In fact, Rules 14 and 18, taken together, would be almost equivalent to a 
 re-enactment of s. 6 of the 14 & 15 Viet., c. 99. but there is no applica- 
 tion for an "order for inspection" mentioned in Rule 14, and as the 
 documents respecting which notice is to be given in Rule 1 4 fall within 
 one of the exceptions of Rule 18, it would not be necessary for the party 
 giving the notice to file an affidavit. To what does Rule 18 apply ? Does 
 it apply to Rule 12 ? The allusion to an application to a judge would 
 then be a mere tautology, and the " documents disclosed" under Rule 12 
 are expressly excepted from the provision that an affidavit is necessary. 
 Does Rule 18 apply to Rule 11 ? In the Court of Chancery, from whose 
 Orders that Rule is copied, no affidavit was necessary in support of a 
 summons to inspect documents,* and it would be strange if the Supreme 
 Court in new practice were less liberal. 
 
 * Rochdale Company v. King, 15 Beav. 11. See Parkinson v. Chamber i, 
 1 K. & J., 72.
 
 RULES OF COURT. 41-5 
 
 Rule 19. 
 
 If the party from -whom discovery of any kind or 
 inspection is sought objects to the same, or any part 
 thereof, the Court or a Judge may, if satisfied that the 
 right to the discovery or inspection sought depends on the 
 determination 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 deter- 
 mined 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. 
 
 This is Rule 15 of the XXVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 This is new. 
 
 Rule 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 plaintiff, be liable 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 inter- 
 rogating may apply to the Court or a Judge for an order 
 to that effect, and an order may be made accordingly. 
 
 This is Rule 16 of Order XX VTTI. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 Under s. 51 of the Common Law Procedure Act, 1854, any party 
 omitting, without just cause, sufficiently to answer all questions as to 
 which discovery might be sought was to be deemed to have committed a 
 contempt of Court and be liable to be proceeded against accordingly, 
 i.e., to be attached (1 Wm. IV, c. 22., s. 5). 
 
 Attachment for contempt was also the punishment in the Court of 
 Chancery.* In Chancery also where an order had been made that the 
 defendants' time for answering should be extended until after the produc- 
 tion by the plaintiff of a document stated in the Bill, and the plaintiff 
 
 * Daniel's Chancery Practice, p. 1,699.
 
 416 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 neglected to produce the document, it was, on the defendants' motion, 
 ordered that the plaintiff should produce the document within a limited 
 time, or that in default the Bill should be dismissed with costs. Princess of 
 Wales v. Lord Liverpool, 3 Swaust. 567. 
 
 As to striking out the defence, see Order XXVII., Rule 1, and the note 
 thereto. 
 
 Rule 21. 
 
 Service of an order for discovery or inspection made 
 against any party on his solicitor shall be sufficient service 
 to found an application for an attachment for disobedience 
 to the order. But the party 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. 
 
 This is Rule 17 of Order XXVIII. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 Rule 22. 
 
 A solicitor upon whom an order against any party 
 for discovery or inspection is served under the last Ride, 
 who neglects without reasonable excuse to give notice 
 thereof to his client, shall be liable to attachment. 
 
 This is Rule 18 of the XXVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 Rule 23. 
 
 Any party may, at the trial of an action or issue 
 use in evidence any one or more of the answers of the 
 opposite party to interrogatories without putting in the 
 other : 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. 
 
 This is Rule 19 of the XXVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. This Rule is rather out of place. 
 It would have followed more naturally Rule 10 of this Order, supra.
 
 RULES OF COURT. 417 
 
 ORDER XXXII. 
 
 ADMISSIONS. 
 
 Rule 1. 
 
 Any party to an action may give notice, by his 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. 
 
 This Rule is a re-enactment of the first part of Rule 39 of the Principal 
 Act. 
 
 " It is an essential principle of pleading at Common Law that whatever 
 is not denied is admitted." (Bullenand Leake's " Precedents," p. 436 n.). 
 Where default is made in pleading, the statement of fact in the 
 pleading last delivered is, by Order XXIX. of the present Act, to be 
 " deemed to be admitted. See also Order XXII., Rule 4, as to the power 
 to inflict extra costs for refusal to admit allegations of fact which ought 
 to have been admitted. 
 
 Admissions might have been made by parties in the Court of Chancery 
 by agreement or otherwise.* 
 
 See the First Report of the Judicature Commission, p. 14, 
 
 Rule 2. 
 
 Either party may call upon the other party to admit any 
 document, saving all just exceptions ; and 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 unless such notice be given, 
 except where the omission to give the notice is, in the 
 opinion of the Taxing Officer, a saving of expense. 
 
 This Rule is a re-enactment of the second part of Rule 39 of the Prin- 
 cipal Act. 
 
 The Rule is copied verbatim from the Common Law Procedure Act, 
 1852, section 117, except that "hearing" is inserted before "trial," 
 " Court " is substituted for " Judge," and " Taxing-officer " for " Master." 
 
 The words of this enactment are very wide, including every document 
 which a party means to adduce in evidence, and not merely documents in 
 his custody or control (Rutter v. Chapman, 8 M. & W. 338), and the 
 
 * See Daniel's Chancery Practice, c. xxii, s. 1.
 
 418 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Court will rather enlarge than restrict the provisions of the section (per 
 Alderson, B. in Rutter v. Chapman, ubi supra), 
 
 The admission is to be made " saving all just exceptions." A party, 
 e.g., admitting his handwriting to a bill, is not precluded from objecting 
 to its admissibility in evidence on account of its being unstamped ( Vane 
 v. Whittington, 2 Dowl., N- S., 757). 
 
 No time is specified for giving the notice to admit, but it has been con- 
 sidered that it must be given a reasonable time before the trial* 
 
 Where a party necessarily called as a witness to prove some other part 
 of the case, can prove the documents, the omission ' of a notice to admit 
 will be excusable, on the ground mentioned in the Rule, that it is " a 
 saving of expense." 
 
 An admission once formally made will bind the party making it, even on 
 a new trial, t 
 
 Rule 3. 
 
 A notice to admit documents may be in the Form 
 No. 12 in Appendix (B) hereto. 
 
 This is Rule 1 of the XXIXth Order of the Rules of Court drawn up in 
 1874 under the Principal Act, "Appendix B" being substituted for 
 " Schedule B," in order to adapt the Rule to the present Act. 
 
 The form No. 12 in Appendix (B) is copied verbatim from Reg.-G-en., 
 Hil. T., 1853, Rule 29, including the Schedules of documents. 
 
 Rule 4. 
 
 An affidavit of the solicitor or his clerk, of the due sig- 
 nature of any admissions made in pursuance of any notice 
 to admit documents, and annexed to the affidavit, shall 
 be sufficient evidence of such admissions. 
 
 This is Rule 2 of the XXIXth Order of the Rules of Court drawn up in 
 1874, under the Principal Act. 
 
 This Rule is copied from the Common Law Procedure Act, 1852, sec- 
 tion 118, " solicitor " being substituted for " attorney in the cause." J 
 
 ORDER XXXIII. 
 INQUIRIES AND ACCOUNTS. 
 
 The Court or a Judge may, at any stage of the proceed- 
 ings in a cause or matter, direct any necessary inquiries or 
 accounts to be made or taken, notwithstanding that it may 
 
 * See Tynn v. Billingsley, 2 Dowl., 310. 
 t Doe v. Bird, 7 C. & P. 6. 
 
 | See Day's Common Law Procedure Acts, 4th edn., p. 140. Dot 
 Tindalv. Roe, 5 Dowl.. 420 ; Chaplin v. Levy, 9 Ex., 531.
 
 RULES OF COURT. 419 
 
 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 should proceed in the 
 ordinary manner. 
 
 This Rule is a re-enactment of Rule 42 of the Principal Act. 
 
 It is provided by the 66th section of the Principal Act that the Court 
 or a Judge may, in any cause or matter pending in the High Court, order 
 that any accounts may he taken and inquiries made in the office of or by 
 any District Registrar. 
 
 This Order is copied, nearly verbatim, from the recommendations of the 
 Judicature Commission : * 
 
 " The Judge should also be empowered at any time, on summary 
 application in Chambers or elsewhere, to direct, if he thinks fit, any neces- 
 sary inquiries or accounts, notwithstanding it may appear that there is 
 some special or further relief sought, or some special matter to be tried 
 as to which it may be proper that the suit should proceed in the ordinary 
 manner," 
 
 "At any stage in the proceedings." The plaintiff in Equity was 
 empowered by Order XX. of the Consolidated Orders to " move the Court 
 on notice," at any time after the defendant had appeared, that preliminary 
 accounts and inquiries should be taken ; and it was held that they might 
 be ordered though the cause was set down for hearing, f 
 
 The accounts and inquiries were ordered " without prejudice to any 
 question in the cause," but it was necessary that they should be 
 beneficial to the parties not competent to consent thereto, and that it 
 should be consented to by any of defendants competent to consent who 
 had not put in their answer, and that they should be consented to as being 
 proper to be made upon the statements contained in the answers of the 
 defendants who had answered. The new practice is not hampered by any 
 of these restrictions. The accounts and inquiries may be ordered, as we 
 have seen, "at any stage" the Court or Judge may order them without 
 any motion, or they may be ordered at the instance of either party ; and 
 no consents, either express or constructive, are required, 
 
 OllDER XXXIV. 
 
 QUESTIONS OF LAW. 
 
 Rule I. 
 
 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 divided into 
 paragraphs numbered consecutively, and shall concisely 
 state such facts and documents as may be necessary to 
 
 * First Report, p. 11. 
 
 f Strother v. Dutton, 10 Sim., 288,
 
 420 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 enable the Court to decide the questions raised thereby. 
 Upon the argument 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 draw 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. 
 
 The heading of the following Rules is taken from the heading of the 
 corresponding Rules of the Rules of Court of 1874, drawn up under the 
 Principal Act, with the omission of the words " without pleadings." 
 This Rule is Rule 1 of Order XXX. of those Rules of Court. 
 The Rule is founded, partly on the Common Law Procedure Act, 1852, 
 BS. 46, 47, and 48 ; partly on Sir George Turner's Act, 13 and 14 Viet., 
 c. 35 ; partly on the Reg. Gen. Hil T. 1862. 
 
 Special cases on points of law were first allowed to be stated at Common 
 Law by the 3 and 4 Wm. 4, c. 42, s. 25 ; but only " after issue joined ;" the 
 46th section of the Common Law Procedure Act, 1 852, was, as stated by Mr. 
 Archbold,* "an improvement upon this;" "for," he adds, "now the 
 parties may have the special case without pleadings, thereby saving the 
 expense to them, as well as any risk of being defeated by their not pro- 
 perly raising the question of law to be decided." 
 
 By s. 46 of the Common Law Procedure Act, 1852, it is enacted that 
 " the parties may, after writ issued, and before judgment, by consent and 
 order of a judge, state any question or questions of law in a special case 
 for the opinion of the Court, without any pleadings. It will be seen that 
 the present Rule follows this enactment in requiring that before a special 
 case under the Rule is stated, an action must have been commenced. 
 
 It is provided by the Reg. Gen. Hil T., 1862, that " every special case 
 set down in any of the Superior Courts of Common Law shall be divided 
 into paragraphs, which, as nearly as may be, shall be confined to a distinct 
 portion of the subject, and every paragraph shall be numbered consecu- 
 tively." The present Rule enacts the provisions of this Rule : with the 
 omission of the words in italics, which however, it would be as well for 
 the draughtsman to pay heed to. 
 
 It will be remembered that by Order XIX., Rule 4, it is provided that 
 " every pleading shall contain, as concisely as may be, a statement of the 
 material facts, such statement being divided into paragraphs, numbered 
 Consecutively, and each paragraph containing, as nearly as may be, a separate 
 allegation." 
 
 The rest of the present Rule is copied, almost verbatim, from Sir 
 George Turner's Act (13 and 14 Viet., c. 35) s. 1. That Act enabled, how- 
 ever, parties interested in questions cognizable in the Court of Chancery 
 to concur in stating a special case for the opinion of that Court without 
 filing any Bill. The special case was to be filed, nevertheless, " in the 
 same manner as Bills are filed," and defendants might appear to it " in the 
 $arne manner as defendants appear to Bills."t 
 
 * Archbold's Practice, Part III., chap. II., p. 899. 
 f 13 and 14 Viet., c. 35. s. 10.
 
 RULES OF COURT. 421 
 
 Rule 2. 
 
 If it appear to the Court or a Judge, either from the 
 statement of claim or defence or reply or otherwise, that 
 there is in any action a question of law, which it would be 
 convenient to have decided before any 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 make an order accordingly, and may direct such ques- 
 tion 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 question of law may render unnecessary 
 may thereupon be stayed. 
 
 This Rule is a re-enactment of Rule 24 of the Principal Act. 
 
 Questions of law are constantly raised in the course of trials, and decided 
 off-hand by the presiding judge. The present Rule provides a more formal 
 method of deciding these questions "before any evidence is given or any 
 question of fact is tried," if they strike the mind of the judge on a perusal 
 of the pleadings. 
 
 The words " before any evidence is given or question of fact is tried " 
 seem to point to an application by summons at Chambers under this Rule, 
 although there is nothing said expressly in the Rule about any such appli- 
 cation. The form of application at Chambers would probably be a sum- 
 mons to the opposite party to show cause why the action should not be 
 stayed, until the question of law has been decided. The Judge knew 
 nothing formerly of the pleadings till he came into Court and heard them, 
 not read, but concisely summarised by the junior counsel who " opened " 
 them. It would have been almost impossible for the most quick-witted of 
 Judges to gather from the cursory statement of the counsel " opening the 
 pleadings " whether there was any question of law involved in the case or 
 not. But in future a copy of the whole of the pleadings is to be fur- 
 nished to the Judge. 
 
 In criminal cases it is usual for the Judge to peruse the indictments 
 before coming into Court, so as to enable him to give instructions to 
 the Grand Jury whether to find a true Bill or no Bill in any case. 
 
 " Before any reference is made to a Referee." The Judge may, by sec- 
 tion 57 of the Principal Act, order the question of fact to be tried by a 
 Referee " at any time" 
 
 Rule 3. 
 
 Every special case shall be printed by the plaintiff, 
 and signed by the several parties or their solicitors, and
 
 422 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 shall be filed by the plaintiff. Printed copies for the use 
 of the Judges shall be delivered by the plaintiff 
 
 This is Rule 2 of the XXXth Order of the Rules of Court, drawn up 
 in 1374, under the Principal Act. 
 
 By the Additional Rules of the 12th of August, 1875, Order IV., it is 
 provided, that the present Rule " shall apply to a special case pursuant 
 to the Act of 13 and 14 Viet., c. 35." Prior to that Order there do 
 not appear to have been any instructions as to printing special cases 
 under that Act. 
 
 Rule 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 Court or a 
 Judge, the application for which must be supported by 
 sufficient evidence 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. 
 
 This is Rule 3 of the XXXth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 This Rule is founded on sections 11 and IS of the 13 and 14 Viet., c. 35. 
 The words, " the application " down to " true " are copied verbatim from 
 s. 11. The Rule, however, differs from the statute in this that the 
 leave may be obtained by summons at chambers : the application for leave 
 under the statute must have been made in Court (Sidebottom v. Watson, 
 1 W. R. 229). 
 
 jRute 6. 
 
 Either party may enter a special case for argument 
 by deliveiing to the proper officer a memorandum of entry, 
 in the Form 13 in Schedule (B) hereto, and also if any 
 married woman, infant, or person of unsound mind be a 
 party to the action, producing a copy of the order giving 
 leave to enter the same for argument. 
 
 This is Rule 4 of the XXXth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act.
 
 RULES OF COURT. 423 
 
 ORDER XXXV. 
 
 PROCEEDINGS IN DISTRICT REGISTRIES. 
 
 Rule 1. 
 
 Where an action proceeds in the District Registry, all 
 proceedings, except where by these Rules it is otherwise 
 provided, or the Court or a Judge shall otherwise order, 
 shall be taken in the District Registry, down to and in- 
 cluding the entry for trial of the action or issues therein ; 
 or if the plaintiff is entitled to enter final judgment or to 
 obtain an order for an account by reason of the default 
 of the defendant, then down to and including such judg- 
 ment or order; and such judgment or order as last aforesaid 
 shall be entered in the District Registry in the proper book, 
 in the same manner as a like judgment or order in an action 
 proceeding in London would be entered in London. Where 
 the writ of summons 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 plaintiff is intitled 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, unless the Court or a Judge 
 shall otherwise order. Where an action proceeds in the 
 District Registry, final judgment shall be entered in the 
 District Registry unless the Judge at the trial or the Court 
 or a Judge shall otherwise order. 
 
 The first clause of this Rule down to the word, " London," is Rule 2 of 
 Order XXXI of the Rules of Court, drawn up, in 1874 under the 
 Principal Act. The rest of the Rule appears for the. first time in this 
 Order. 
 
 The first clause of the Rule, except the concluding portion of it, is 
 copied verbatim from s. 64 of the Principal Act. It was hardly necessary 
 to enact the same thing twice over,* but as this is the course freely 
 
 * It will be seen from what follows that the same thing is enacted 
 thrice over.
 
 424 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 followed by this Schedule with regard to a vast variety of other enactments, 
 it cannot be looked upon in the light of an inconsistency. The conclud- 
 ing words of the first clause of the Rule : " And such judgment or order 
 shall be entered in the District Registry in the proper book in the same 
 manner as a like judgment or order in an action proceeding in London 
 would be entered in London," are framed upon the authority of the 
 legislature as expressed in s. 64 of the Principal Act : " Such proceed- 
 ings may be recorded in the District Registry in such manner as may be 
 prescribed by Rules of Court." S. 64 also declares that " all such other 
 proceedings in any such action as may be prescribed by Rules of Court 
 shall be taken and may be recorded in the same District Registry." The 
 second and third clauses of this Rule are framed with a view to carrying 
 out this authority. 
 
 " Interlocutory judgment," i.e., judgment subject to the finding of 
 a jury under a writ of inquiry as to the quantum of damages; 
 Order XIII, Rule 6 gives power to enter such a judgment in default 
 of appearance. Order XXIX, Rules 4 and 5 give power to enter such a 
 judgment in default of pleading. S. 64 of the Principal Act might have 
 been held not to include a case of interlocutory judgment, but a case of 
 final judgment only. Hence this enactment. As the last clause of this 
 Rule originally stood, the words " and the trial takes place elsewhere 
 than in London or Middlesex," preceded the words, " final judgment." The 
 former words were struck out in Committee on the Bill in the House of 
 Commons, on the motion of Mr. Gorst, Q.C., who represented the Lanca- 
 shire Law Societies. His object was to prevent actions once commenced in 
 Lancashire from being removed to London, but the omission of the words 
 which originally stood in the last clause of the Rule renders the clause 
 a mere repetition of what had" been previously enacted by the 64th 
 Section of the Principal Act and by the first clause of the present 
 Rule. As the last clause originally stood, it was intended to provide 
 for the case of an action, technically speaking, " proceeding in a 
 District Registry," not being tried outside the district, elsewhere 
 than in London or Middlesex. Such a case might. not seem to come 
 strictly within the first clause of the Rule, just like the case of inter- 
 locutory judgment ; hence the proposed enactment, which was intended to 
 extend, not to limit, the entering of final judgment in a District Registry. 
 
 The following originally formed Rule 1 of this Order, but it was struck 
 out in Committee on the motion of the Attorney General, at the instance 
 of the Provincial Law Societies : 
 
 " For the purpose of these Rules the district of every District Registry 
 in the county of Lancaster shall mean the district thereto assigned by any 
 Order of Her Majesty in Council, and the district of every District Registry 
 elsewhere than in the county of Lancaster, shall mean a circle with a 
 radius of five miles, as the crow flies, from the Registry." 
 
 This suggested Rule was rendered unnecessary by the Order in 
 Council of the 12th August, 1875, which as far as District Registries 
 outside Lancashire are concerned, defines the area of each District Registry 
 in terms much more elastic than those specified in the suggested Rule. 
 The area formerly assigned to each District Prothonotary is now the area of 
 each District Registry in Lancashire, and the area of the district of the local 
 County Court is the area of the district of each of the other District Registries. 
 
 The influential deputation which waited upon the Attorney General 
 from the Provincial Law Societies * pointed out to him that under the 
 
 * The writer accompanied this deputation, by request.
 
 RULES OF COURT. 425 
 
 Suggested Rule the " radius of five miles, as the crow flies," would 
 occasionally cut a house, and even a bed, in two ! 
 
 Rule 2. 
 
 Subject to the foregoing Rules, where an action proceeds 
 in the District Registry the judgment and all such orders 
 therein as require to be entered, except orders made by 
 the District Registrar under the authority and jurisdic- 
 tion vested in him under these Rules, shall be enteied in 
 London, and an 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. 
 
 This is Rule 3 of the XXXIst Order of the Rules of Court drawn up 
 in 1874 under the Principal Act, with the addition of the words, "sub- 
 ject to the foregoing Rules," at the commencement and the omission of 
 the words, " except such judgment or orders for account as mentioned 
 in the last preceding Rule" after the word "except," this exception 
 being included in the words " subject to the foregoing Rules." The word 
 " Rules " has been left standing although the first Rule has been struck 
 out. It should have been altered to the singular number. 
 
 Rule 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 Court or a Judge shall 
 otherwise order. 
 
 The first clause of this Rule is Rule 4 of the XXXIst Order of the Rules 
 of Court drawn up in 1874 under the Principal Act. The second Clause 
 of the Rule is new. 
 
 This Rule and the next confer important powers on the District Regis- 
 trars. 
 
 Rule 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 be exercised
 
 426 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 by a Judge at chambers, except such as by these Rules a 
 Master of the Queen's Bench, Common Pleas, or Ex- 
 chequer Divisions is precluded from exercising. 
 
 This is Rule 5 of the XXXIst Order of the Rules of Court drawn up in 
 1874 under the Principal Act. 
 
 The fiew of many eminent lawyers that the duties of District Registrars 
 should be purely ministerial has, it will be seen by this Rule, not been 
 carried out. The District Registrars will be armed with all the powers 
 of the Masters of the Courts of Common Law. See as to the jurisdiction of 
 such Masters, the Judges' Chambers (Despatch of Business) Act, 30 and 
 31 Viet., c. 68 ; the Reg. Gen., Mich. T., 1867, made under the authority 
 of that Act, and Order LIV., Rule 2, of the present Schedule. 
 
 The expression "Judges' Chambers" is large enough to include the 
 Chambers of the Chancery Judges, and that it does include them is evident 
 from Rule 10 of this Order. 
 
 In Order LIV., when it is intended to speak of applications to Common 
 Law Judges at chambers, or to the Masters, these applications are dis- 
 tinguished from other applications at chambers. See Rules 2 and 6 of 
 that Order. The words, however, "in respect of the action" are im- 
 portant; they seem to exclude the jurisdiction unconnected with actions 
 exercised by Chancery Judges. 
 
 There is no limitation to the jurisdiction of Chief Clerks at chambers, 
 similar to that of the Master's ; they can exercise all the jurisdiction of 
 their Judges at chambers. This jurisdiction is very extensive. See 15 
 and 16 Viet., c. 80; 18 and 19 Viet., c. 134, and Order XXXV. of the 
 Consolidated Orders of the Court of Chancery. 
 
 Rule 5. 
 
 Every application to a District Registrar shall be made 
 in the same manner in which applications at chambers 
 are directed to be made by these rules. 
 
 This is Rule 6 of the XXXIst Order of the Rules of Court drawn up in 
 1874 under the Principal Act. 
 
 This Rule refers to Order LIV., Rule 1, infra : " Every application at 
 chambers, authorised by these Rules, shall be made in a summary way by 
 summons." 
 
 Rule 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 back to the Registrar, with such 
 directions as he may think fit. 
 
 This is Rule 7 of the XXXIst Order of the Rules of Court drawn up in 
 1874 under the Principal Act. 
 This Rule reappears as Order LIV., Rule 3, with the substitution of
 
 RULES OF COURT. 427 
 
 " Master " for " District Eegistrar." The rule is taken from Reg. Gen., 
 Mich. T., 1867, where, however, the rule applies to the Master. 
 
 Rule 7. 
 
 Any person affected by any order or decision of a 
 District Registrar may appeal to a Judge ; such appeal 
 may be made notwithstanding that the order or decision 
 was in respect of a proceeding or matter as to which the 
 District Eegistrar had jurisdiction only by consent. Such 
 appeal shall be by summons within four days after the 
 decision complained of, or such further time as may be 
 allowed by a Judge or the Registrar. 
 
 This is Rule 8 of the XXXIst Order of the Rules of Court drawn up in 
 1874 under the Principal Act. 
 
 This Rule reappears as Order L1V., Rule 4, with the substitution of 
 " Master " for " District Registrar." , 
 
 The Rule is taken from Reg. Gen., Mich. T., 1867, where, however, it is 
 applied to the Master. 
 
 Rule 8. 
 
 An appeal from a District Registrar shall be no stay 
 of proceedings unless so ordered by a Judge or the 
 Registrar. 
 
 This is Rule 9 of the XXXIst Order of the Rules of Court drawn up in 
 1874 under the Principal Act. 
 
 The Rule reappears as Order LTV., Rule 5, with the substitution of 
 "Master's decision" for "District Registrar," and "Master" for 
 "Registrar." 
 
 It is taken from Reg. Gen. , Mich. T., 1867, where, however, it is 
 applied to an appeal for the Master's decision. 
 
 Rule 9. 
 
 Every District Registrar and other officer of a District 
 Registry shall be subject to the orders and direc- 
 tions of the Court 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 
 fully as a like proceeding in London. 
 
 This is Rule 10 of the XXXIst Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 See as to the position of existing officers of the Superior Courts, s. 77 of 
 the Principal Act ; as to that of future officers, s. 4 of the same Act.
 
 428 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 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 whom the action is 
 assigned. 
 
 This is Rule 1 1 of the XXXIst Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 This Rule follows the practice of the Court of Chancery, and the 
 practice in the Courts of Common Law is regulated by the Stat. 1 
 and 2 Viet., c. 45, which enables a Judge of any one of the three Common 
 Law Courts to transact out of Court any business relating to any other of 
 the Common Law Courts in the same manner as if he had been a Judge 
 of the Court to which the business belonged, and this, although such 
 Courts might have no common jurisdiction therein. 
 
 Rule 11. 
 
 In any action which would, under the foregoing Rules, 
 proceed in the District Registry, any defendant may 
 remove the action from the District Registry as of right in 
 the cases, and within the times, following : 
 
 Where the writ is specially indorsed under Order 
 III, Rule 6, and the plaintiff does not within four 
 days after the appearance of such defendant give 
 notice of an application for an order against him under 
 Order XIY. ; then such defendant may remove the 
 action as of right at any time after the expiration of 
 such four days, and before delivering a defence, and 
 before the expiration of the time for doing so : 
 
 Where the writ is specially indorsed, and the plain- 
 tiff has made such application as in the last paragraph 
 mentioned, and the defendant has obtained leave to 
 defend in manner provided 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 expi- 
 ration of the time for doing so : 
 
 Where the writ is not specially indorsed any de-
 
 RULES OF COURT. 429 
 
 fendant may remove the action as of right at any time 
 after appearance, and before delivering a defence, and 
 before the expiration of the time for doing so. 
 
 This is Rule 12 of the XXXIst Order of the Rules of Court drawn up in 
 1874, under the Principal Act. " Order III., Rule 6," being substituted 
 for " section 7 of the Schedule," and " Order XIV." for " Order XIII.," 
 in order to bring the Rule into harmony with the present Act, in the first 
 and second subsections. 
 
 Mr. Gorst, Q. C. , moved the omission of this and the next Rule, as destroy- 
 ing the privileges conceded by the other Rules of the Schedule to District 
 Registries, and interfering with the vested rights of the suitors of the 
 County Palatine of Lancaster.* A division was called for, but the 
 motion was negatived. 
 
 There can be no doubt that these two Rules concede to defendants large 
 powers of removal of actions from District Registries to London ; but this, 
 while militating against actions " proceeding" in the District Registries, 
 increases the elasticity of the new procedure generally. 
 
 Where the writ is specially endorsed, the process against the defendant 
 is more peremptory than where the writ is not specially endorsed. The 
 defendant on appearance may be called upon by the plaintiff to show 
 cause why the plaintiff should not sign final judgment. By the first sub- 
 section of this rule, if the plaintiff neglects to avail himself of this privilege 
 for four days after the defendant's appearance, the defendant may as of 
 right remove the action at the expiration of that period. The plaintiff 
 may, however, avail himself of the privilege of calling upon the defendant 
 to show cause, and the Judge may order that the defendant shall have 
 leave to defend. In this case it is provided by the second subsection of 
 this Rule that the defendant may remove the action, as of right, at any 
 time after the order giving him leave to defend has been made by the 
 Judge. " Such application as in the last paragraph mentioned" does not 
 seem necessarily to mean an application within four days. 
 
 In the case of a writ not specially endorsed the defendant's right to 
 remove the action arises immediately on his entering an appearance, he 
 need not wait four days, and he does not want any order for leave to defend. 
 
 It will be remembered that if the defendant neither resides nor carries 
 on business within the district in which the action is commenced, he need 
 not even enter an appearance within the district unless he likes. It is 
 only when the defendant either resides or carries on business within the 
 district that he is bound to appear there. See Order V., Rules 1, 2 and 3 ; 
 Order XII., Rules 2 and 3. 
 
 Rule 12. 
 
 Any defendant desirous to remove an action as of 
 right under the last preceding Rule may do so by serving 
 upon the other parties to the action, and delivering to the 
 District Registrar, a notice, signed by himself or his soli- 
 citor, to the effect that he desires the action to be removed 
 
 * The writer, as a Lancashire member, supported the motion.
 
 430 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 to London, and the action shall be removed accordingly : 
 Provided, that if the Court or a Judge shall be satisfied 
 that the defendant giving such notice is a merely formal 
 defendant, or has no substantial cause to interfere in the 
 conduct of the action, such Court or Judge may order that 
 the action may proceed in the District Registry notwith- 
 standing such notice. 
 
 This is Rule 13 of the XXXIst Order of the Eules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 The process provided in cases where the defendant removes the action as 
 of right is exceedingly simple. 
 
 As to the proviso at the end of the Kule, see Order XII., Rule 5. An 
 application on the part of the plaintiff by summons at chambers would 
 appear to be necessary to obtaining an order that the action shall proceed 
 in the District Registry. 
 
 Rule 13. 
 
 In any case not provided for by the last two preceding 
 Rules, any party to an action proceeding in a District Re- 
 gistry may apply to the Court or a Judge, or to the District 
 Registrar, for an order to remove the action from the Dis- 
 trict Registry to London ; and such Court, Judge, or Regis- 
 trar may make an order accordingly, if satisfied that there 
 is sufficient reason for doing so, upon such terms, if any, 
 as shall seem just. 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 Re- 
 gistry, and such Court 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. 
 
 This is Rule 14 of the XXXIst Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 The object of the Provincial Law Societies was to get the two preceding 
 Rules omitted, and also the words, " in any case not provided for by the 
 last two preceding Rules," at the commencement of this Rule, omitted 
 also. It would then have been necessary for a defendant, desirous of 
 removing an action from a District Registry, to apply in all cases for an order 
 to remove it. The Government, however, adhered to the two preceding 
 Rules and to the words at the commencement of this Rule, and the motion 
 to omit them was not pressed to a division. 
 
 The second clause of this Rule was a concession to the Provincial Law 
 Societies.
 
 RULES OF COURT. 431 
 
 Rule 14. 
 
 Whenever any proceedings are removed from the 
 District Registry to London, the District Registrar 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. 
 
 This is Rule 15 of the XXXIst Order of the Rules of Court, drawn np 
 in 1874, under the Principal Act. 
 
 See further as to District Registries, sections 60, 61, 62, 63, 64 and 65 
 of the Principal Act, also section 13, supra. 
 
 ORDER XXXVI. 
 
 TRIAL. 
 
 Rule 1. 
 
 There shall be no local venue for the trial of any action, 
 but when the plaintiff proposes to have the action tried 
 elsewhere than in Middlesex, 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, be the county of Middlesex. Any order of a Judge, 
 as to such place of trial, may be discharged or varied by a 
 Divisional Court of the High Court. 
 
 This Rule is a re-enactment of Rule 28 of the Principal Act. 
 
 The venue is local when the cause of action stated in the declaration 
 could, by possibility, and in its nature, have reference to a particular 
 locality only.* 
 
 The venue of all actions will henceforth be transitory. The learning on 
 the subject of " venue" will be found in the notes to Mostyn v. Fabrigas 
 in Smith's Leading Cases, 623. 
 
 " Unless a Judge otherwise orders." The Judicature Commissioners, in 
 their First Report (p. 1 7 ) , recommended that " all local venues in civil actions 
 should be abolished, leaving it to the Court or a Judge to control the 
 choice of the plaintiff, in case an inconvenient venue should be chosen." 
 
 * Broom's Comm. p. 164, 4th edn.
 
 432 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 " Order of a Judge." By Reg. Gen. Hil. T., 1853, " no venue shall be 
 changed without a special order of the Court or a Judge, unless by 
 the consent of the parities." 
 
 Rule 2. 
 
 Actions shall be tried and heard either before a Judge or 
 Judges, or before a Judge sitting with assessors, or before 
 a Judge and Jury, or before an official or special Referee, 
 with or without assessors. 
 
 This Rule is a re-enactment of Rule 30 of the Principal Act. 
 
 As to official and special Referees see sections 57, 58, and 59 of the 
 Principal Act, and Rules 30 to 34 of this Order, infra. 
 
 As to trial before a Judge sitting alone, see section 1 of the Common Law 
 Procedure Act, 1854. As to trial before a Judge sitting with assessors 
 see section 56 of the Principal Act. 
 
 The Judicature Commissioners recommended that any question to be 
 tried should be capable of being tried by a Judge, a Jury, or a Referee* 
 
 Rule 3. 
 
 Subject to the provisions of the following Rules, the 
 plaintiff may, with his reply, or at any time after the 
 close of the pleadings, give notice of trial of the action, 
 and thereby specify one of the modes mentioned in Rule 
 2 ; and the defendant may, upon giving notice within 
 four days from the time of the service of the notice of trial, 
 or within 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 tried. 
 
 The provisions as to notice of trial by the plaintiff are taken from Rule 
 1 of the XXXIInd Order of the Rules of Court drawn up in 1874 under 
 the Principal Act, " Rule 2" being substituted for " Rule 30 of the Sched- 
 ule to the Act" [of 1873,] in order to adapt the Rule to the present Act. 
 The remainder of the Rule is new. 
 
 The Judicature Commissioners recommended that the plaintiff should 
 be at liberty to give notice of trial by any one of the modes of trial speci- 
 fied in Rule 2, which he may prefer, subject to the right of the defendan to 
 move the Judge to appoint any other mode.* This recommendation is carried 
 out in the present Rule, and its principle is applied, e convet so, in the next. 
 
 The only case in which, under the old practice, the plaintiff could give 
 notice of trial before issue joined was where the plaintiff s pleading was ii\ 
 denial of the pleading of the defendant, without joining issue, in which, 
 case the plaintiff might give notice of trial at the time of delivering hit 
 
 * First Report, p. 13. + Ib.-
 
 RULES OF COURT. 433 
 
 replication or other subsequent pleading by Reg. Gen. Hil. T. 1853, and 
 Rule 40. The practice, in general, was to give notice on the back of the 
 issue.* 
 
 The plaintiff may give notice of trial before a Judge, either sitting alone or 
 with assessors,'or before a Referee. The defendant may then, within a limited 
 period, assert the time-honoured right of an Englishman to a trial by his 
 peers,f of which the plaintiff is seeking, by virtue of this Act, to deprive 
 him. The present Rule, however, must be read with section 57 of the 
 Principal Act, which empowers the Judge, without the consent of either 
 party, to order " any issue of fact " to be tried before a Referee, provided 
 the cause requires any prolonged examination of documents or accounts, 
 or any scientific or local investigation which cannot conveniently be 
 made before a Jury. A similar power was given to a Judge by section 3 
 of the Common Law Procedure Act, 1854, to force a cause into arbitra- 
 tion. J It would seem that the power of referring causes to arbitrators 
 other than official and special Referees e.g., to barristers on circuit is still 
 preserved to the Judge by section 76 of the Principal Act. 
 
 The present Rule must also be read with Rule 26 of this Order, infra, 
 which empowers the Court or a Judge to direct a trial without a Jury 
 of (amongst others) cases falling within the exclusive jurisdiction of the 
 Court of Chancery or Admiralty. 
 
 Rule 4. 
 
 Subject to the provisions of the following rules, if 
 the plaintiff does not within six weeks after 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 Rule 3 that he desires to have the 
 issues of fact tried before a Judge and Jury, [may] be 
 entitled to have the same so tried. 
 
 This is Rule 2 of the XXXIInd Order of the Rules of Court drawn up 
 in 1874 under the Principal Act, with the addition, at the commencement 
 of the Rule, of the words " subject to the provisions of the following 
 Rules," and, at the end, of the important words: " and in such case the 
 plaintiff on giving notice within the time fixed by Rule 3 that he desires 
 to have the issues of fact tried before a Judge and Jury, [may] be entitled 
 
 * Archbold's Practice, p 314. 
 
 | See ss. 20 and 22 of the present Act, supra. 
 
 J The decision in Mobson v. Lees, 6 B & N, 258, that this section applies 
 only to applications before trial, is often practically overruled by the Judge 
 at Nisi Prius intimating that he will hear a summons under the section 
 quasi in camera. 
 
 28
 
 434 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 to have the same so tried " (see the note to Rule 3, supra}. " Rule 2 " iw 
 also substituted for " Rule 30 of the Schedule to the Act" [of 1873], in 
 order to adapt the Rule to the present Act. 
 
 " Subject to the provisions of the following Rules." The expression, as 
 we have seen, was not in the present Rule as originally drawn. It is 
 rather difficult to assign any definite meaning to this constantly-recurring 
 phrase, especially in this and the preceding Rules, in view of the statement 
 that Rule 6 is " subject to the provisions of the preceding Rules." See a 
 similar see-saw, Order XVII, Rule 7. 
 
 This Rule takes the converse case of a defendant giving notice of trial, 
 in which case the plaintiff has the right of insisting on trial by Jury, if the 
 defendant in his notice of trial specifies trial by a .Judge or a Referee ; but 
 this right is subject to the same exercise by the Judge of his powers under 
 section 57 of the Principal Act, and Rule 26 of the present order, as in 
 the case of a defendant insisting, under Rule 3, on trial by Jury. 
 
 " The defendant may give notice of trial." This proceeding somewhat 
 resembles that of trial by proviso, under the old practice. In all cases in 
 which after issue joined the plaintiff makes default in proceeding to trial, 
 when, by the practice of the Court, he ought to have so proceeded, the 
 defendant may have the action tried by proviso ; that is to say, he may 
 give the plaintiff notice of trial, make up the Nisi Prius Record, carry it 
 down, and enter it and proceed to trial, as if he were proceeding as plain- 
 tiff, and thus keep the cause from hanging over his head for an indefinite 
 time ; but this mode of trial is now very seldom adopted, as the method of 
 giving the plaintiff twenty days' notice to bring the cause on for trial and 
 signing judgment for his costs in case the plaintiff neglects to give notice 
 of trial for the next sittings or assizes,* is generally preferred. 
 
 Rule 5. 
 
 In any case in which neither the plaintiff nor defendant 
 has given notice under the preceding Rules that he desires 
 to have the issues of fact tried before a Judge and Jury, 
 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 
 time as a Court or Judge may allow. 
 
 This is Rule 3 of the XXXIInd Order of the Rules of Court drawn up 
 in 1874 under the Principal Act, the words " in any case in which neither 
 the plaintiff nor defendant has given notice under the preceding Rules 
 that he desires to have the issues of fact tried before a Judge and Jury, or 
 
 * Common Law Procedure Act, 1852, section 101. Trial by proviso is 
 expressly preserved by section 166 of the same Act.
 
 RULES OF COURT. 435 
 
 in any case within the 57th section of this Act," being prefixed at the 
 commencement. 
 
 " The preceding Rules," i.e., Rules 3 and 4. 
 
 " The 57th section of this Act " is the section of the Principal Act, 
 which gives power to the Court or a Judge to direct trials to take place 
 before Referees. 
 
 The "giving notice" referred to here evidently points to the notice 
 which the defendant may give under under Rule 3, and the plaintiff, under 
 Rule 4, that he insists upon trial by Jury ; the words which follow assume 
 that a particular mode of trial had been specified previously in the notice 
 of trial, and that the party desires to have the action tried in some other 
 mode. It seems difficult, however, to understand how it can be ascertained 
 that the party has not given notice under Rules 3 or 4 before proceeding 
 under Rule 5, as the time limited in the three Rules for taking action is 
 precisely the same, i.e., four days from the time of the service of the notice 
 of trial. 
 
 In cases falling under the 57th section of the Principal Act this Rule 
 confers a substantial benefit on the parties. It enables either of them to 
 apply that the action shall be tried by the Judge alone, or with assessors, 
 or by Judge and Jury, instead of being tried, as it otherwise would be, by 
 a Referee. 
 
 Rule 6. 
 
 Subject to the provisions of the preceding Rules, the 
 Court or a Judge may, in any action at any time or from 
 time to time, order that different questions of fact arising 
 therein be tried by different modes of 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. 
 
 This Rule is a re-enactment of Rule 32 of the Principal Act, with the 
 addition at the commencement of the words, " subject to the provisions of 
 the preceding Rules," and at the end of the words, " and in all cases may 
 order that one or more issues of fact be tried before any other or others. 
 
 " Subject to the provisions of the preceding Rules." These words 
 are very important, for they restrict the powers of the Judge to fix the 
 mode of trial to cases falling within section 57 of the Principal Act, or 
 Rule 26 of the present Order. 
 
 "At any time or from time to time " would seem to include the case of 
 a Judge at Nisi Prius making the order, but see liobson v. Lees, 6 H. and 
 X. 258. 
 
 " One or more issues of fact." The term " the issue " at a trial at 
 Common Law is a compound one, and comprehends all the pleadings. 
 There can, of course, be only one such issue. The "issues of fact" 
 referred to in this Rule mean the issues of fact joined in the pleadings, 
 of which issues there may be, of course, many.
 
 436 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 7. 
 
 Every trial of any question or issue of fact by a Jury 
 shall be held before a single Judge, unless such trial be 
 specially ordered to be held before two or more Judges. 
 
 This Rule is a re-enactment of Rule 33 of the Principal Act. 
 
 See the saving of the prior powers of a single Judge in section 39 of 
 the Principal Act. 
 
 " Specially ordered," as in the case of a trial at bar. (The Rule can 
 hardly be meant, however, to exclude the right of the Attorney General 
 to demand a trial at bar in cases in which the Crown is interested.) 
 
 Rule 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 entered for 
 trial. It may be in the Form No. 14 in Appendix (B), 
 with such variations as circumstances may require. 
 
 This is Rule 4 of the XXXIInd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act, " Appendix B " being substituted 
 for " Schedule (B) " in order to adapt the Rule to the present Act. 
 
 No particular form of notice of trial has hitherto been necessary. 
 (Ginger v. Pyecroft, 11 L. J. (Q.B.) 182). 
 
 On comparing the new form in Appendix (A), No. 14, with the old 
 ones in Chitty's Forms, (Book III, chap. IX), the first thing that is likely 
 to strike the reader is the addition of the words " by a Judge and Jury" 
 which, of course, under the old practice would have been mere surplusage ; 
 but which are necessary now under Rules 3 and 4 of this Order. The 
 next thing that is likely to strike the reader is that " in Middlesex " is 
 substituted for the long description of " for the sittings within [or for 
 the sittings after] this present term, to be holden at Westminster Hall, in 
 the county of Middlesex." By s. 26 of the Principal Act the division of 
 the legal year into terms is abolished, so far as relates to the administra- 
 tion of justice ; and the Judges have power to sit and act at any time and 
 in any place, and by Rule 1 1 of this Order " notice of trial for Middlesex 
 shall not be for any particular sittings." Hence the shortening referred 
 to of the form of notice as to time and place. The words " for the day 
 
 of next," are, however, added. This is pursuant to the provision of 
 
 the present Rule, that in actions in the three Common Law Divisions, " the 
 place and day," for which the cause is entered, are to be stated in the 
 notice of trial. In an action in any of the other Divisions it may be 
 assumed that it will be unnecessary to specify the "place and day." By 
 Rule 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. The form formerly in use as to notice of
 
 RULES OF COURT. 437 
 
 trial at Assizes will still, it is apprehended, mutatis mutandis, be applicable.* 
 It will be necessary, however, to specify the mode of trial in addition to 
 the particulars now given. 
 
 The present Rule provides that " the notice of trial shall state whether 
 it is for the trial of the action or of issues therein." This was necessary 
 under the old practice, where the defendant had suffered judgment by 
 default for want of a plea as to part or where there were issues both 
 of law and fact,f and it is apprehended that where the Jury who try the 
 issues joined, are also to assess the damages upon a judgment by default, it 
 will still be necessary to specify that they will do so, and the Form No. 
 14 in Appendix (A) hereto may, by the express terms of the present Rule, 
 be varied, as circumstances may require. 
 
 Rule 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 sufficient in all cases, unless 
 otherwise ordered by the Court or a Judge. Short notice 
 of trial shall be four days' notice. 
 
 This is Rule 5 of the XXXIInd Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. The first clause of this Rule is copied 
 from section 97 of the Common Law Procedure Act, 1852. By Rule 35 
 of the Reg. Gen. Hil. T., 1853, the expression, " short notice of trial 
 shall in all cases be taken to mean four days." J 
 
 " Short notice of trial." The defendant is not bound to accept " short 
 notice of trial" unless a Judge has ordered him to accept it. If the order 
 binds him to take short notice for a particular sittings, it does not bind 
 him to take short notice for any other sittings. 
 
 Rule 10. 
 
 Notice of trial shall be given before entering the action 
 for trial. 
 
 This is Rule G of the XXXHnd Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 This Rule alters the previous law. It was no objection to a notice of 
 trial under the former practice, that it was given after the cause had been 
 entered for trial. || 
 
 * See Chitty's Forms, p. 136. 
 t Ib. 
 
 t See Flowers v. Welch, 9 Ex., 272. 
 
 Slattcr v. Painter, 1 Dowl. N. S., 35 ; Allot v. Allot, 7 Taunt, 452 ; 
 White v. Clarke, 8 Dowl., 730. 
 || Ginger v. Pyecroft, 17 L. J. (Q.B.), 182.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 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. 
 
 This is Rule 7 of the XXXIInd Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 By section 30 of the Principal Act sittings in London and Middlesex 
 shall, so far as is reasonably practicable, be held continuously throughout 
 the year. There will therefore, if this enactment be carried out, be no 
 "particular sittings" in London and Middlesex at all. 
 
 Rule 12. 
 
 Notice of trial elsewhere than in London or Middle- 
 sex shall be deemed to be for the first day of the then 
 next Assizes at the place for which notice of trial is given. 
 
 This is Rule 8 of the XXXIInd Order of the Rules of Court drawn up 
 in 1874, under the Principal Act. 
 
 The form given in Chitty's " Forms "* of notice of trial at the Assizes 
 is " for the next Assizes." In country causes, however, under section 101 
 of the Common Law Procedure Act, 1852, the plaintiff was not to be 
 deemed to be " in default " if issue was joined in or in the vacation before 
 one of the issuable terms,f unless he tried at the second Assizes after that 
 term. If issue was joined in or in the vacation before one of the other 
 terms, he was in default unless he tried at the next Assizes after that 
 term.J 
 
 Rule 13. 
 
 No notice of trial shall be countermanded, except by 
 consent, or by leave of the Court or a Judge, which leave 
 may be given subject to such terms as to costs or other- 
 wise, as may be just. 
 
 This is Rule 9 of the XXXIInd Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 The Rule alters the previously existing practice on this subject. A 
 plaintiff, previously, had the right of countermanding his notice of trial, 
 even in the case of a trial at bar. This was hardly fair to defendants. 
 
 Page 136. t Hilary and Trinity. 
 
 See 1 Lush's Practice, p. 493. { Archbold's Practice, p. 317.
 
 RULES OF COURT. 439 
 
 As to the former practice, see section 98 of the Common Law Procedure 
 Act, 1852, and Eeg. Gen. Hil. T., 1853, Rules 34 and 37. 
 
 Rule 14. 
 
 If the party giving notice of trial for London or 
 Middlesex omits to enter the cause for trial on the day or 
 day after giving notice of trial, the party to whom notice 
 has been given may, unless the notice has been counter- 
 manded under the last Rule, within four days enter the 
 action for trial. 
 
 This is Eule 10 of the XXXIInd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 " The party giving notice." The defendant, as we have seen, can give 
 the notice under the circumstances mentioned in Rule 4. 
 
 The Rule as to entry of causes in London and Middlesex was, that whether 
 the sitting were within term or after term, the causes must have been 
 entered before 5 p.m. on the day next but one preceding the sitting* (The 
 Rule prior to this made a distinction between entering causes within term 
 and entering them after term.)t The Rule as to entering causes on the day 
 next but one preceding the sitting is not, of course, afl'ected by the pre- 
 sent Rule, which provides a very swift remedy for the laches of a party 
 giving notice of trial, and not immediately entering the cause of trial 
 in London and Middlesex. 
 
 As to trial by proviso, which was the only case formerly in which the 
 defendant could enter the cause for trial, see note to Rule 4. 
 
 The party entering the cause for trial in London and Middlesex takes 
 the record with the panel of jurors annexed to the Associate's Office, and 
 enters the cause for trial with the Associate. 
 
 Eule 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, it shall 
 be tried in the order of the plaintiff's entry. 
 
 This is Rule 11 of the XXXIInd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 The defendant, as we have seen (see notes to Rules 4 and 11) could only 
 enter the action for trial in the case of trial by proviso, in which case he 
 also gave the notice, of trial. 
 
 The present Rule is in accordance with the previously existing practice 
 as to trial by proviso. By s. 116 of the Common Law Procedure Act, 
 
 * Reg.-Gen. Trin. Vac., 1868. 
 
 t Reg.-Gen. Hil. T., 185?, Rule 43.
 
 440 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 1852: "If records are entered for trial both by the plaintiff and the 
 defendant, the defendant's record shall be treated as standing next in order 
 after the plaintiff's record in the list of causes, and the trial of the cause 
 shall take place accordingly." If the plaintiff's notice of trial be insuffi- 
 cient, his entry will be a nullity, and the defendant may go to trial on his 
 entry, and if the plaintiff does not appear he will be nonsuited (Brown v. 
 Ottley, 1 B. and A. 253.) 
 
 Rule 16. 
 
 The list or lists of actions for trial at the sittings in 
 London and Middlesex respectively shall be prepared, and 
 the actions shall be allotted for trial without reference to 
 the Division of the High Court to which such actions may 
 be attached. 
 
 This Eule is a re-enactment of Rule 29 of the Principal Act, with the 
 omission of the words, " in such manner as may be prescribed by Rule 
 of Court," after " alloted for trial." 
 
 The Rule will effect a great improvement. Hitherto the Common 
 Pleas at Guildhall has had about 20 special jury cases for 100 set down for 
 trial in the Queen's Bench* at Guildhall. 
 
 Rule 17. 
 
 The party entering the action for trial shall deliver 
 to the officer a copy of the whole pleadings in the action, 
 for the use of the Judge at the trial. Such copy shall be 
 in print, except as to such parts, if any, of the pleadings 
 as are by these Rules permitted to be written. 
 
 This is Rule 12 of the XXXIInd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 Every pleading which contains more than 3 folios of 72 words each (not 
 being a petition or summons) must, by Order XIX. Rule 5, be printed. 
 As to printing, see also the " Additional Rules." 
 
 In trials at bar four copies of the issue have to be made out by the 
 Master for the use of the Judges, t 
 
 Four clear days before the day appointed for argument of questions of 
 law, the plaintiff delivers, at the Judges' Chambers in Serjeants' Inn, 
 copies of the demurrer-book, special case, special verdict or appeal cases, 
 with the points intended to be insisted on, to the Chief, and also to the 
 Senior Puisne Judge of the Court in which the action is brought, and the 
 defendant delivers copies to the other Judges of the Court next in 
 seniority.:}: 
 
 * See note to s. 30 of the Principal Act, at p. 75. 
 t Archbold's Practice, Part I., Chap. XL, p. 374. 
 t Reg. Gen., Hil. T., 1853, Rule 16.
 
 RULES OF COURT. 441 
 
 This Rule will be of great utility in enabling the Judge in a trial at 
 Nisi I'rius to make himself thoroughly acquainted with the pleadings 
 before the case is called. (See the note to Order XXXIV., Rule 2.) 
 
 Rule 18. 
 
 If, when an action is called on for trial, the plaintiff 
 appears, and the defendant does not appear, then the 
 plaintiff may prove his claim, so far as the burden of proof 
 lies upon him. 
 
 This is Rule 13 of the XXXITnd Order of the Rules of Court drawn 
 up in 1874 under the Principal Act. 
 
 This Rule is merely a rehearsal of the existing practice. " If," says 
 Mr. Archbold, " the defendant's attorney and witness be not in attendance 
 when the cause is called on, the plaintiff may proceed in their absence. "* 
 
 Rule 19. 
 
 If, when an action is called on for trial, the defendant 
 appears, and the plaintiff does not appear, the defendant, 
 if he has no counter-claim, shall be entitled to judgment 
 dismissing the action ; but if he has a counter-claim, then 
 he may prove such claim so far as the burden of proof 
 lies upon him. 
 
 This is Rule 14 of the XXXIInd Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 The first part of this Rule is in accordance with the existing practice. 
 " If the plaintiff's attorney and witnesses," says Mr. Archbald, " be not 
 in attendance when the cause is called on, the plaintiff will be non-suited." t 
 
 "Judgment dismissing the action." It is curious how carefully in this 
 Schedule all terms of art are avoided. Judgment dismissing the action 
 is the same, it is apprehended, as a nonsuit. J 
 
 The second part of the Rule is based upon the analogy of the practice 
 in the case where the defendant does not appear ; the plaintiff being, to 
 all intents and purposes, the defendant to the counter-claim. 
 
 Rule 20. 
 
 Any verdict or judgment obtained where one party 
 does not appear at the trial may be set aside by the Court 
 or a Judge upon such terms as may seem fit, upon an 
 application made within six days after the trial ; such 
 
 * Archbold's Practice, p. 381. 
 
 t Ib. 
 
 I Nonsuit, is however, mentioned, eo nomine, in Order XLL, Rule 6.
 
 442 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 application may be made either at the Assizes or in 
 Middlesex. 
 
 This is Rule 15 of the XXXIInd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 The method of remedying any injustice occasioned by the non-appear- 
 ance of one of the parties when the cause was called on, has generally 
 been hitherto by new trial. When a cause was called on as undefended, 
 which stood thirty off in the list, and no notice had been given that it 
 would be taken as an undefended cause, the Court granted a new trial.* 
 In a similar case, where the notice was not given till late on the previous 
 night, the Court granted a new trial.f 
 
 The remedy provided by the present Rule is a speedier and less costly 
 one. An " affidavit of merits " will be necessary. 
 
 Mule 21. 
 
 The Judge may, if he think it expedient for the in- 
 terests of justice, postpone or adjourn the trial for such 
 time, and upon such terms, if any, as he shall think fit. 
 
 This is Rule 16 of the XXXIInd Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 The Rule is taken from section 19 of the Common Law Procedure 
 Act, 1854. 
 
 Rule 22. 
 
 Upon the trial of an action the Judge may, at or 
 after such trial, direct that judgment be entered for any 
 or either party, as he is by law entitled to upon the find- 
 ings, and either with or without leave to any party to 
 move to set aside or vary the same, or to enter any other 
 judgment, upon such terms, if any, as he shall think fit to 
 impose ; or he may direct judgment not to be entered 
 then, and leave any party to move for judgment. No 
 judgment shall be entered after a trial without the order 
 of a Court or Judge. 
 
 This is Rule 17 of the XXXIInd Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 The Judicature Commissioners recommended that the Judge at the trial 
 
 * Aust v. Fenwick, 2 Dowl., 246 ; Dorriers v. Sou-ell. 8 Dowl. 
 277 ; 6 Bing., N. C., 245. 
 
 f De Medina v. Sharpnell, 12 L. J. N. S., C.P., 37.
 
 RULES OF COURT. 443 
 
 should, without consent of the parties, have power to reserve leave to the 
 Court to enter a non-suit or verdict. 
 
 The present Rule must be read in connection with Order XL, as to 
 motion for judgment. 
 
 These enactments, taken together, greatly enhance the power of the 
 Judges over signing and entering judgment. 
 
 The Court or a Judge had, however, under s. 110 of the Common Law 
 Procedure Act, 1852, and Reg. Gen. Hil. T. 1853, Rule 57, power to stay 
 the signing of judgment, under the old practice.* 
 
 Rule 23. 
 
 Upon every trial at the Assizes, or at the London and 
 Middlesex sitting of the Queen's Bench, Common Pleas, 
 or Exchequer Division, where the officer present at the 
 trial is not the officer by whom judgments ought to be 
 entered, the Associate shall enter all such findings of fact 
 as the Judge may direct to be entered, and the directions, 
 if any, of the Judge as to judgment, and the certificates, 
 if any, granted by the Judge, in a book to be kept for the 
 purpose. 
 
 This is Rule 18 of the XXXIInd Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 " The officer by whom judgments ought to be entered." By Order 
 XLI, Rule 1, it is provided that " every judgment shall be entered by the 
 proper officer, in a book to be kept for the purpose." 
 
 The word " Associate " is defined by Wharton in his Law Lexicon to 
 mean an officer whose duties are to superintend the entry of causes ; to 
 attend the sittings at Nisi Prius, and there receive and enter verdicts ; to 
 draw up the posteas and any Orders of Nisi Prius. 
 
 The Statutes relating to Clerks of Assize and to Associates are 33 Hen. 
 8, c. 24 ; 15 and 16 Viet. c. 73 ; 18 and 19 Viet. c. 126; and 32 and 33 
 Viet. c. 89. 
 
 The Stat. of Hen. 8 speaks of " persons that now are Clerks of Assize and 
 shall be associate to any Justice of Assize in any county within the realm 
 of England." 
 
 There are Associates and Associates. Three in London one for each of 
 the Common Law Courts ; and eight in the provinces, one for each circuit.f 
 
 " The Clerks of Assize are defined by Wharton in the Law Lexicon to be 
 officers who officiate as Associates in the Circuits. They record all 
 judicial proceedings done by the Judges on circuit. There are, however, 
 Associates on each Circuit distinct from the Clerks of Assize. 
 
 *Archbold's Practice, p. 524 ; Yates v. The Dublin Steam Packet Company 
 6 M. and W. 71 ; 8 Dowl.,482. 
 f Most of the latter, however, live in London.
 
 444 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 24. 
 
 If the Judge shall direct that any judgment be entered 
 for any party absolutely, the certificate of the Asso- 
 ciate to that effect shall be a sufficient authority to the 
 proper officer to enter judgment accordingly. The certi- 
 ficate may be in the Form No. 15 in Appendix (B.) hereto. 
 
 This is Rule 19 of the XXXIInd Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act, the words " the certificate may be in the 
 Form No. 15 in Appendix (B.) hereto being added." This form is new. 
 
 As to entering judgment, see Order XLI. See also Rule 22, supra, as to 
 the power of the Judge to direct that judgment shall be entered. 
 
 The form of certificate is new. See further as to this certificate the 
 note to Order XLIL, Rule 5. See Notanda. 
 
 Rule 25. 
 
 If the Judge shall direct that any judgment be 
 entered for any party subject to leave to move, judgment 
 shall be entered accordingly upon the production of the 
 Associate's certificate. 
 
 This is Rule 20 of the XXXIInd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 As to entering judgment, see Order XLI. 
 
 See also Rule 22 of this Order, supra, as to the power of the Judge to direct 
 that judgment shall be entered. 
 
 Rule 26. 
 
 The Court or a Judge may, if it shall appear desirable, 
 direct a trial without a Jury of any question or issue 
 of fact, or partly of fact and partly of law, arising in any 
 cause or matter which previously to the passing of the Act 
 could, without any consent of parties, be tried without a 
 Jury. 
 
 This is Rule 21 of the XXXHnd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 S ee the notes to Rules 3 and 4. 
 
 The words " without any consent of parties" point to cases other than 
 those which fall within section 1 of the Common Law Procedure Act, 1354, 
 under which " the parties to any cause may, by consent in writing, signed 
 by them or their attorneys leave the decision of any issue of fact to be
 
 RULES OF COURT. 445 
 
 tried by the Court * provided that the Court, upon a Eule to show cause 
 or a Judge on summons, shall, in their or his discretion, think fit to allow 
 such trial." 
 
 The present Rule extends the range of cases which may he directed to 
 be tried without a Jury to all Chancery and Admiralty actions and also 
 those, which, in the Court of Probate, would he ordered to be tried with- 
 out a Jury, such as actions where the only issue raised is as to the due 
 execution of the will. 
 
 Rule 27. 
 
 The Court or a Judge may, if it shall appear, either 
 before or at the trial, that any issue of fact can be more 
 conveniently tried before a Jury, direct that such issue 
 shall be tried by a Judge with a Jury. 
 
 This is Rule 23 of XXXIInd Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 See Rules 3 and 4 of this Order, supra, as to the power of the parties to 
 insist on trial by Jury. The power given to the Court or a Judge by 
 Rule 6 to order different questions of fact to be tried in different manners 
 is " subject to the provisions" of Rule 3 and 4. The present Rule is not so 
 subject ; on the contrary, those Rules are " subject to the provisions " of this 
 Rule, which would clearly give the Court or a Judge power to override the 
 wish of a plaintiff or defendant that the cause should be tried by the 
 Judge alone, or by the Judge sitting with assessors, or by a Referee, 
 where the defendant or plaintiff has not availed himself of his power 
 under liules 3 and 4, respectively, to insist on trial by Jury. 
 
 Rule 28. 
 
 Trials with assessors shall take place in such manner 
 and upon such terms as the Court or a Judge shall direct. 
 
 This is Rule 23 of the XXXIInd Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 By Rule 2 actions may be tried before a Judge sitting with assessors, or 
 before an official or special Referee sitting with assessors. Of course this 
 mode of trial is not applicable to trial by jury. By s. 54 of the Principal 
 Act, the assessors are to be " specially qualified," and the cause may be 
 tried wholly or partlyf with their assistance. 
 
 The system of trial with assessors has hitherto been localised in the 
 Admiralty Court. The trial of questions of damages and accounts before 
 the Registrar of that Court and his nautical assessors will probably be the 
 model for trials before Referees and their assessors. J In special cases the 
 
 * See Cooteand Tristram's Probate Practice, pp. 272, 273 ; First Report 
 of Judicature Commission, p. 12. 
 
 t Rule 6 of this Order would also seem to sanction this. 
 
 J As to assessors in the County Courts in Admiralty causes, see 31 
 and 32 Viet., c. 71, ss. 10, 11, 14, 15, 16.
 
 446 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Judge of the Court of Admiralty will sit with assessors. (See Williams 
 and Bruce on Admiralty Practice, Part II., c. VIII.) 
 
 Rule 29. 
 
 In any cause the Court or a Judge of the Division 
 to which the cause is assigned may, at any time, or from 
 time to time, order the trial and determination of any 
 question or issue of fact, or partly of fact and partly of 
 law, by any commissioner or commissioners appointed in 
 pursuance of the 29th section of the said Act, or at the 
 sittings to be held in Middlesex or London, and such ques- 
 tion or issue shall be tried and determined accordingly. 
 
 This is Rule 29 of the XXXIInd Order of the Eules of Court drawn 
 up in 1874, under the Principal Act, "cause" being substituted for 
 "action" in two places. This jurisdiction must evidently be exercised 
 before trial. The Commissioners eligible under s. 29 of the Principal Act 
 are the Common Law Judges, the future Divorce, Admiralty, Probate, 
 and Chancery Judges, Serjeants-at-Law, and Queen's Counsel. 
 
 Rule 30. 
 
 Where any cause or matter, or any question in any 
 cause or matter, is referred to a Referee, he may, subject 
 to the Order of the Court or a Judge, hold the trial at 
 or adjourn it to any place which he may deem most con- 
 venient, and have any inspection or view, either by himself 
 or with his assessors (if any), which he may deem expe- 
 dient for the better disposal of the controversy before 
 him. He shall, unless otherwise directed by the Court 
 or a Judge, proceed with the trial de die in diem, in a 
 similar manner as in actions tried by a Jury. 
 
 This Rule is a re-enactment of Rule 34 of the Principal Act, the words 
 "any cause" being substituted at the commencement for " an action." 
 (See as to Referees, sections 67, 58, 59, and 83 of the Principal Act, and 
 Rules 2 and 5 of this Order, supra.) This and the remaining Rules of this 
 Order are framed under the authority of s. 57 of the Principal Act. 
 " All such trials before Referees shall be conducted in such manner as 
 may be prescribed by Rules of Court." 
 
 " Subject to the order of the Court or a Judge." By s. 57 of tho 
 Principal Act, " subject to Rules of Court, all such trials before Referees
 
 HULES OF COURT. 447 
 
 shall be conducted in such manner as the Court or a Judge ordering the 
 same shall direct." 
 
 Rule 31. 
 
 Subject to any order to be made by the Court or 
 Judge ordering the same, evidence shall be taken at any 
 trial before a Referee, and the attendance of witnesses may 
 be enforced by subpoena, and every such trial shall be con- 
 ducted in the same manner, as nearly as circumstance 
 will admit, as trials before a Judge of the High Court, 
 but not so as to make the tribunal of the Referee a public 
 court of justice. 
 
 This is Eule 25 of the XXXIInd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 Rule 32. 
 
 Subject to any such order as last aforesaid, the Referee 
 shall have the same authority in the conduct of any 
 reference or trial as a Judge of the High Court when 
 presiding at any trial before him. 
 
 This is Eule 26 of the XXXIInd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 Rule 33. 
 
 Nothing in these Rules contained shall authorise any 
 Referee to commit any person to prison, or to enforce any 
 order by attachment or otherwise. 
 
 This is Rule 27 of the XXXIInd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. The Rule expressly denies to 
 Referees the powers inherent in a Court of Record of committal for con- 
 tempt of Court. As soon as he has given his decision the Referee is 
 fitiictits officio, and the duty of enforcing it belongs to the Court or the 
 Judge who made the reference. 
 
 Rule 34. 
 
 The Referee may, before the conclusion of any trial 
 before him, or by his report under the reference made to 
 him, submit any question arising therein for the decision of 
 the Court, or state any facts specially, with power to the
 
 448 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Court to draw inferences therefrom, and in any such case 
 the order to be made on such submission or statement shall 
 be entered as the Court may direct ; and the Court shall 
 have power to require any explanation or reasons from the 
 Referee, and to remit the cause or matter, or any part 
 thereof, for re-trial or further consideration to the same or 
 any other Referee. 
 
 This Rule is a re-enactment of Rule 35 of the Principal Act. 
 
 ORDER XXXVII. 
 
 EVIDENCE GENERALLY. 
 
 Rule 1. 
 
 In the absence of any agreement between the parties, 
 and subject to these Rules, the witnesses at the trial of any 
 action or any assessment of damages, shall be examined 
 viva voce and in open court, but the Court or a Judge may 
 at any time for sufficient reason order that any particular 
 fact or facts may be proved by affidavit, or that the affidavit 
 of any witness may be read at the hearing or trial, on such 
 conditions as the Court or Judge may think reasonable, or 
 that any witness whose attendance in court ought for some 
 sufficient cause to be dispensed with, be examined by in- 
 terrogatories or otherwise before a commissioner or exa- 
 miner ; provided that where it appears to the Court or 
 Judge that the other party bond fide desires the production 
 of a witness for cross-examination, and that such witness 
 can be produced, an order shall not be made authorising 
 the evidence of such witness to be given by affidavit. 
 
 This Rule is a re-enactment of Rule 36 of the Principal Act. The Rule 
 is a curious compromise between the practice of the Courts of Common 
 Law and Equity, respectively. The Common Law practice ofvird voce ex- 
 mination is to prevail, but power is given to the Court to order proof by 
 affidavit in exceptional cases. 
 
 This Rule is referred to in the 20th section of the present Act : " No- 
 thing in this Act or in the first Schedule hereto, or in any Rules of Court 
 to be made under this Act, save as far as relates to the power of the Court 
 for special reasons to allow depositions or affidavits to be read, shall affect the
 
 RULES OF COURT. 449 
 
 mode of giving evidence by the oral examination of witnesses in trials by 
 Jury, or the rules of evidence, or the law relating to jurymen or juries." 
 
 In the Court of Chancery the evidence in chief was taken either by 
 affidavit or orally before an examiner, generally in the absence of the 
 opposite party who had, however, the power of cross-examination at a 
 later stage, either orally before an examiner, or in open Court. 
 
 This Rule, down to the word "provided," is copied, almost verbatim, 
 from the recommendations of the Judicature Commission.* 
 
 The last part of the Rule (from "provided" to the end) is new. The 
 Judicature Commission recommended that " any witness who had made an 
 affidavit should be liable to cross-examination." (See the next Rule, where 
 a similar recommendation has been adopted.) 
 
 Rule 2. 
 
 Upon any motion, petition, or summons, evidence may 
 be given by affidavit ; but the Court or a Judge may, on 
 the application of either party, order the attendance for 
 cross-examination of the person making any such affidavit. 
 
 This Rule is a re-enactment of Rule 37 of the Principal Act, the words, 
 "motion, petition, or summons," being substituted for "interlocutory 
 application." 
 
 This Rule is copied almost verbatim from the recommendations of the 
 Judicature Commission, the words "any motion, petition, or summons," 
 being substituted for " interlocutory applications." t 
 
 Rule 3. 
 
 Affidavits shall be confined to such facts as the witness 
 is able of his own knowledge to prove, except on inter- 
 locutory motions, on which statements as to his belief, with 
 the grounds thereof, may be admitted. The costs of every 
 affidavit which shall unnecessarily set forth matters of 
 hearsay, or argumentative matter, or copies of or extracts 
 from documents, shall be paid by the party filing the 
 same. 
 
 This Rule is a re-enactment of Rule 35 of the Principal Act. 
 
 A distinction is here very properly drawn between evidence on affidavit, 
 which is to replace v iv& voce examination in open Court, and mere affidavits 
 in support of motions and summonses, and other interlocutory proceedings. 
 
 The law here enacted as to the latter is identical with that laid down 
 by Mr. Day, in reference to affidavits in support of interlocutory motions 
 
 * First Report, p. 14. t Ib. 
 
 29
 
 450 SUPREME COURT OF JUDICATURE ACT, 1S75. 
 
 at Common Law : "When facts are not within the deponent's knowledge, 
 he should allege that he has heen informed thereof, or that he verily 
 believes them to be true. Thus, where it is from the circumstances clearly 
 impossible to swear positively as where the cause of action arose from 
 nonpayment of bills in India it is considered sufficient to state that the 
 bills were not paid to deponent's knowledge and belief."* 
 
 The latter clause of this Rule is taken from Order XL. of the Consoli- 
 dated Orders of the Court of Chancery, Rules 9 & 10. 
 
 Rule 4. 
 
 The Court or a Judge may, in cause or matter where it 
 shall appear necessary for the purposes of justice, make any 
 order for the examination upon oath before any officer of 
 the Court, or any other person or persons, and at any place, 
 of any witness or person, and may order any deposition so 
 taken to be filed in the Court, and may empower any party 
 to any such cause or matter to give such deposition in 
 evidence therein on such terms, if any, as the Court or a 
 Judge may direct. 
 
 This Rule is a re-enactment of the last clause of Rule 45 of the Prin- 
 cipal Act. 
 
 A similar power was given by ss. 46 & 47 of the Common Law Pro- 
 cedure Act, 1854, to the Common Law Courts and Judges. 
 
 "Any officer of the Court" would include the existing examiners in 
 Chancery, appointed under 16 & 17 Viet., c. 22, whose offices are clearly 
 saved by s. 77 of the Principal Act. 
 
 ORDER XXXVIII. 
 
 EVIDENCE BY AFFIDAVIT. 
 
 Rule 1. 
 
 "Within fourteen days after a consent for taking evi- 
 dence by affidavit as between the plaintiff and the defen- 
 dant has been given, or within such time as the parties 
 may agree upon, or a Judge in chambers may allow, the 
 plaintiff shall file his affidavits and deliver to the defen- 
 dant or his solicitor a list thereof. 
 
 This is Rule 1 of the XXXIIIrd Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 * Common Law Procedure Acts, p. 52, citing Hobson v. Campbell, 1 H. 
 Black., 245.
 
 RULES OF COURT. 451 
 
 " "Within fourteen days." This is the time within which the plaintiff 
 or defendant might apply after issue joined, that the evidence be 
 taken viva voce at the hearing of the cause, instead of before an examiner.* 
 Evidence by affidavit was, however, permissable after issue joined, instead 
 of before an examiner, f The practice in this and the two following Rules 
 is new. See Rule 6. The evidence is to be closed before notice of trial 
 is given. 
 
 Rule 2. 
 
 The defendant within fourteen days after delivery of 
 such list, or within such time as the parties may agree 
 upon, or a Judge in chambers may allow, shall file his 
 affidavits and deliver to the plaintiff or his solicitor a list 
 thereof. 
 
 This is Rule 2 of the XXXII Ird Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 Rule 3. 
 
 Within seven days after the expiration of the said 
 fourteen days, or such other time as aforesaid, the plaintiff 
 shall file his affidavits in reply, which affidavits shall be 
 confined to matters strictly in reply, and shall deliver to 
 the defendant or his solicitor a list thereof. 
 
 This is Rule 3 of the XXXIIIrd Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 Rule 4. 
 
 When the evidence is taken by affidavit, any party 
 desiring to cross-examine a deponent who has made an 
 affidavit filed on behalf of the opposite party, may serve 
 upon the party by whom such affidavit has been filed a 
 notice in writing, requiring the production of the deponent 
 for cross-examination before the Court at the trial, such 
 notice to be served at any time before the expiration of 
 fourteen days next after the end of the time allowed for 
 filing affidavits in reply, or \vilhin such time as in any 
 
 * Order of 5th February, 1861, Rule 3. But see Rule 10 of the same 
 Order. 
 
 t Rule o of same Order
 
 452 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 case the Court or a Judge may specially appoint ; and 
 unless such deponent is produced accordingly, his affidavit 
 shall not be used as evidence unless by the special leave of 
 the Court. The party producing such deponent for cross- 
 examination shall not be entitled to demand the expenses 
 thereof in the first instance from the party requiring such 
 production. 
 
 This is Rule 4 of the XXXIIIrd Order of the Eules of Court, drawn up 
 in 1871, under the Principal Act. 
 
 The Rule is copied from the 19th Rule of the Chancery Order of 5th 
 February, 1861. The important little word "not" has, however, been 
 inserted in the last sentence. 
 
 Rule 5. 
 
 The party to whom such notice as is mentioned in 
 the last preceding Rule is given shall be entitled to com- 
 pel the attendance of the deponent for cross-examination 
 in the same way as he might compel the attendance of a 
 witness to be examined. 
 
 This is Rule 5 of Order XXXIII. of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The Rule is copied from the 21st Rule of the Chancery Order of the 
 5th February, 1861. 
 
 Rule 6. 
 
 When the evidence in any action is under this Order 
 taken by affidavit such evidence shall be printed, and the 
 notice of trial shall be given at the same time or times 
 after the close of the evidence as in other cases is by these 
 Rules provided after the close of the pleadings. 
 
 This is Rule 6 of the XXXIIIrd Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 The direction as to printing is taken from the 1st Rule of the Chancery 
 Order of the 16th May, 1862. 
 
 By the 5th Order of the Additional Rules of Court, elaborate provision 
 is made for the printing of affidavits and the supply of copies at a cheap 
 rate. One of the directions is, that the affidavit is to be printed in the 
 manner provided by Rule 2 of Order LVI of this schedule, infra* 
 
 * The Rules of Order V of the "Additional Rules," numbered 9 to 14 
 (inclusive), relative to supplying written copies of affidavits to the opposite 
 party, are taken verbatim from Order XXXVI of the Consolidated Orders 
 of the Court of Chancery.
 
 RULES OF COURT. 453 
 
 OBDER XXXIX. 
 
 MOTION FOR NEW TRIAL. 
 
 Rule 1 
 
 A party desirous of obtaining a new trial of any cause 
 tried in the Queen's Bench, Common Pleas, or Exchequer 
 Divisions on which a verdict has been found by a Jury, 
 or by a Judge without a Jury, must apply for the same 
 to a Divisional Court by motion for an order calling upon 
 the opposite party to show cause at the expiration of eight 
 days from the date of the order, or so soon after as the 
 case can be heard, why a new trial should not be directed. 
 Such motion shall be made within four days after the trial, 
 if the Divisional Court is then sitting, or within the first 
 four days after the commencement of the sitting of the 
 Divisional Court next after the trial, or within such ex- 
 tended time as the Court or a Judge may allow. 
 
 This is Rule 1 of the XXXIVth Order of the Rules of Court drawn up 
 in 1874, under the Principal Act, with the addition of the words " of any 
 cause tried in the Queen's Bench, Common Pleas, or Exchequer Divisions 
 on which a verdict has been found by a Jury, or by a Judge without a 
 Jury," thus confining the Order to the Common Law Divisions of the 
 Supreme Court. 
 
 " A Divisional Court." Under the old practice, the application was 
 made in the Court in which the action was pending. But under this Act, 
 all actions except those inferior Courts, will be commenced in one Court, 
 the High Court of Justice, and the Divisional Courts will be part of that 
 Court. 
 
 Dr. Stephen points out* that this provision of applying to " a Divisional 
 Court" is in analogy to the practice which has hitherto required an 
 application for a new trial to be made to the Court in bane." 
 
 " Such motion shall be made within four days." By Reg. Gen. Hil. T., 
 1 853, Rule 50, " No motion for a new trial shall be allowed after the expira- 
 tion of four days from the trial, nor in any ease after the expiration of the 
 term, if the cause be tried in term, or after the expiration of first four days of 
 the ensuing term, when the cause is tried out of term, unless entered in 
 a list of postponed motions by leave of the Court." 
 
 The distinction between sittings within term and out of term are 
 abolished by s. 26 of the Principal Act, so far as relates to the adminis- 
 tration of justice. The curious and remarkable rule that if the action 
 were tried in term, the rule must be moved for in term, has no counter- 
 part in the new practice, but " the first four days of the sitting of the 
 
 * 3 Steph Comm., 661, 562, 7th edn.
 
 454 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Divisional Court next after the trial" answer, to some extent, to " the first 
 four days of the ensuing term."* 
 
 Leave to vary the stereotyped time of application is still preserv 
 the present rule, but there is no allusion to any "list of postpon 
 motions." . ..,. 
 
 The Judicature Commission recommended t that ' 
 which an application must be made for a new trial, should be regulat 
 by General Orders of the Supreme Court." 
 
 The Courts have hitherto been very rigid in adhering to the time limit* 
 by the Reg. Gen. Hil. T., 1853,t but, under very peculiar circumstances, 
 they would allow the motion to be made at any time before judgment was 
 actually signed. 
 
 Rule 2. 
 
 A copy of such order shall be served on the opposite 
 party within four days from the time of the same being 
 made. 
 
 This is Rule 2 of the XXXIVth Order of the Rules of Court drawn up 
 in 1874, under the Principal Act. 
 
 This Rule is in accordance with the former practice, that notice must 
 be served on the attorney of the opposite party when the motion was 
 entered on the list of postponed motions, or was postponed, in the case of a 
 cause tried in term, by leave of the Court. || But the notice must, in future, 
 be given in all eases, and within four days. 
 
 Rule 3. 
 
 A new trial shall not be granted on the ground of mis- 
 direction or of the improper admission or rejection of evi- 
 dence, unless in the opinion of the Court to which the 
 application is made some substantial wrong or miscarriage 
 has been thereby occasioned in the trial of the action ; and 
 if it appear to such Court that such wrong or miscarriage 
 affects part only of the matter in controversy, the Court 
 may give final judgment as to part thereof, and direct a new 
 trial as to the other part only. 
 
 * As to the " sittings " of the Courts, see Order LXI. infra. 
 t First Report, p. 15. 
 I Ellaby v. Moore, 22 L. J. (C. P.) 253. 
 
 Sex v. Gottffh, 2 Doug. 797 ; Birt v. Barlow., 1 Doug. 171. 
 || Reg. Gen. Hil. T., 1853, Rule 53. See Doe d. Whitty v. Carr, 16 
 Q. B. 117.
 
 RULES OF COURT. 455 
 
 This Rule is a re-enactment of Rule 48 of the Principal Act. 
 
 Where, under the former practice, there was a misdirection on a point 
 immediately in issue, and for which a bill of exceptions would lie, a new 
 trial was a matter of right ex debito just icite* 
 
 Bills of exceptions are, however, abolished by Order LVIIL, Sule 1, and 
 under the new practice there will, it would seem, be no new trials, as a 
 matter of right. 
 
 The whole tendency of this legislation is to place the suitor as much as 
 possible in the hands of the judge, as in Courts of Equity, with a view to 
 finality in legal proceedings, f 
 
 The Court has always had larger powers of refusing a new trial, in the 
 case of the admission or rejection of evidence, than in that of misdirection, 
 as the former is not likely so directly to influence the verdict as the lat- 
 ter ; but if a Judge admitted improper evidence,!}; or rejected evidence 
 which ought to have been admitted,^ the Court would, in general, grant a 
 new trial.|| With regard to the concluding portion of this Rule, where 
 under the old practice, a party was entitled ex debito justitice, to a new 
 trial, upon one of sereralissv.es, the Court could not confine the new trial 
 to such issue only, but must have granted it upon all the issues. H But if 
 the granting of the new trial upon one of several issues was a matter in 
 the discretion of the Court, it might be granted upon such one issue only.** 
 
 Rule 4. 
 
 A new trial may be ordered on any question in an 
 action, whatever be the grounds for the new trial, without 
 interfering with the finding or decision upon any other 
 question. 
 
 This is Rule 3 of the XXXTVth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 Formerly, as we have seen,tt the Court could not, where the party was 
 entitled to a new trial ex debito justitice, confine the new trial to the par- 
 ticular issue wrongly decided, but must have granted it as to all the 
 issues. This Rule enables the Court in all cases to grant a new trial, 
 although the misdirection, &c., affect all the issues, and to confine the new 
 trial to cne of them. 
 
 Rule 5. 
 An order to show cause shall be a stay of proceedings 
 
 * Archibold's Practice, p. 1519. 
 
 f .18 poor Lord Kenyon used to say, " Est modus in rebut there must 
 be an end of things." 
 
 ITutton v. Andrews, Baines 448. Smedleyv. Hill, 2 W. Bl. 1105, 
 
 IJ See Robinson v. Williamson, 9, Price, 136. 
 
 11 Earl of Macclesfieldv. Bradley, 1 M. & W., 570. 
 
 ** Ibid : Hutchison v. Piper, 4 Taunt, 555. ft See not* to Rule 3 of this 
 Order.
 
 456 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 in the action, unless the Court shall order that it shall 
 not be so as to the whole or any part of the action. 
 
 This is Eule 4 of the XXXIVth Order of the Eules of Court drawn up 
 in 1874 under the Principal Act. 
 
 This is a salutary enactment. The Order to show cause is to be ipso 
 facto, so soon as made, a stay of proceedings. Formerly the opposite party 
 might have signed judgment, and even issued execution, notwithstanding 
 the order to show cause ; but by 1 Wm. 4, c. 7, s. 4, the Court might have 
 ordered the judgment to be vacated, or the execution to be stayed, and have 
 granted a new trial, the party being restored in integrum, a very circuitous 
 proceeding. The proper course, it was said, where judgment had been 
 signed was "to move promptly to set it aside."* This race, which was 
 hardly becoming, will be no longer necessary. 
 
 ORDER XL. 
 
 MOTION FOR JUDGMENT. 
 
 Rule 1. 
 
 Except where by the Act, or by these Rules, it is 
 provided that judgment may be obtained in any other 
 manner, the judgment of the Court shall be obtained by 
 motion for judgment. 
 
 This is Rule 1 of Order XXXV of the Rules of Court drawn up in 1874 
 under the Principal Act. 
 
 " Except where by the Act or by these Rules it is provided that judg- 
 ment may be obtained in any other manner." Motion for judgment is not, 
 it would seem, necessary where either final or interlocutory judgment is 
 entered for want of appearance under the provisions of Order 13 or for 
 want of pleading under the provisions of Order 29; (see those Orders). 
 The right to enter judgment would, in these cases, seem to be complete 
 when the opposite party is in default. And after trial, also, the Judge 
 may, by order 36, Rule 22, direct that judgment be entered for any parties, 
 and in this case, unless the parties choose to avail themselves of the ex- 
 pensive luxury of moving for judgment under the present Order, it is 
 apprehended that they need not do so, but may rest content with the order 
 of the judge. In nine cases out of ten probably this will be the course 
 pursued. In the Court of Chancery there was a form of proceeding 
 called " motion for decree," made, (however, before replication), from which 
 the idea of " motion for judgment " seems to have been derived. (See the 
 chapter on " motions for decree " in Daniel's " Chancery Practice "). 
 
 The practice is otherwise new, and is substantially confined to judgment 
 after trial. (See Order 36, Rule 22.) 
 
 Rule 2. 
 Where at the trial of an action the Judge or a Referee 
 
 Doe d. Whitby v. Carr, 20 L. J. (Q. B.) 83.
 
 RULES OF COURT. 457 
 
 has ordered that any judgment be entered subject to leave 
 to move, the party to whom leave has been reserved 
 shall set down the action on motion for judgment, and 
 give notice thereof to the other parties within the time 
 limited by the Judge in reserving leave, or, if no time 
 has been limited, within ten days after the trial. The 
 notice of motion shall state the grounds of the motion, 
 and the relief sought, and that the motion is pursuant to 
 leave reserved. 
 
 This is Rule 2 of the XXXVth Order of the Eules of Court drawn 
 up in 1874, under the Principal Act. 
 
 The power of ordering " at or after any trial " that judgment be entered 
 " subject to leave to move," is given to the presiding Judge by Order 
 XXXVI, Rule 22. 
 
 The Judicature Commission* recommended that " the Judge at the 
 trial should, without the consent of the parties, have power to reserve leave 
 to the Court to enter a nonsuit or a verdict." This recommendation 
 appears to have been carried out in Order XXXVI, Rule 22, already cited. 
 The Commissioners proceed to say that " when the judge at the trial has 
 reserved any question of law, he should have power to direct the cause to 
 be set down for argument before the Court without motion for a Rule 
 nisi." 
 
 It will be perceived that in the present Order motion for a Rule nisi 
 will, under the express terms of Rule 6, although the words "Rule nisi" 
 do not themselves occur, be necessary in any case falling under Rules 4 and 
 5. These are cases of motions to set aside a judgment and enter any other, 
 but the motions for judgment mentioned in Rules ] , 2, 3, 7, and 8 do not 
 appear to involve any motion for a Rule nisi. Instead of moving, within 
 four days of the trial for a Rule nisi and then calling upon the opposite 
 party to show cause within eight days, the party is, within ten days of the 
 trial, to "set down the action on motion for judgment," and serve the 
 opposite party with notice of the motion, and, at all events in the notice 
 to be served under the present Rule, the ground of the motion and the 
 relief sought are to be stated. The opposite party will therefore, in 
 these cases, show cause, it is submitted, in the first instance. See, also, 
 Order LLLI, Rule 2 and the note thereto. 
 
 Rule 3. 
 
 Where at the trial of an action the Judge or Referee 
 abstains from directing any judgment to be entered, the 
 plaintiff may set down the action on motion for judgment. 
 If he does not so set it down and give notice thereof to 
 the other parties within ten days after the trial, any 
 * First Report, p. 15.
 
 458 SUPREME COURT or JUDICATURE ACT, 1875. 
 
 defendant may set down the action on motion for judg- 
 ment, and give notice thereof to the other parties. 
 
 This is Rule 3 of the XXXVth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 See Kule 7 of this Order and note to last Rule. 
 
 " Abstains from directing any judgment to he entered." " The Judge 
 may also after the trial direct judgment not to he entered, and leave the 
 party to move for judgment." Order XXXVI, Rule 22. " Abstaining 
 from directing" appears to be equivalent to directing that judgment shall 
 not be entered. 
 
 Rule 4. 
 
 "Where at the trial of an action before a Jury the 
 Judge has directed that any judgment be entered, any 
 party may, without any leave reserved, move to set aside 
 such judgment, and enter any other judgment, on the 
 ground that the judgment directed to be entered is wrong, 
 by reason of the Judge having caused the finding to be 
 entered wrongly, with reference to the finding of the jury 
 upon the question or questions submitted to them. 
 
 This is Rule 4 of the XXXVth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. , 
 
 See Order XXXVI, Rule 22, supra. 
 
 The motion is to be made in a Divisional Court within 4 days of the 
 trial, as in the case of a motion for a new trial, under Order XXXIX, 
 Rule 1. (Rule 6, infra.) 
 
 Under the old practice any party might have applied to the Court or 
 Judge to amend the postea.* 
 
 A Judge's direction as to the settlement of the postea according to his 
 notes of trial could not, however, hitherto have been questioned in the 
 Court above, t 
 
 Elue 5. 
 
 Where at the trial of an action the Judge or a Referee 
 has directed that any judgment be entered, any party may, 
 without any leave reserved, move to set aside such judg- 
 ment, and to enter any other judgment, on the ground that 
 upon the finding as entered the judgment so directed is 
 wrong. 
 
 *Archbold's Practice, 462, et sey. 
 
 t &andfordv. Alcock, 10 M. and W. 689. Newton v. Harland, 9 Dowl, 6,5 ; 
 Kilner v. ailey, 5 M. and W. 382.
 
 RULES OF COURT. 459 
 
 This is Rule 5 of the XXXVth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 The motion is, like the last, to be made to a Divisional Court, within 4 
 days of the trial, as in the case of motion for a new trial, under Order 
 XXXIX, Rule 1. (Rule 6 infra.') 
 
 The last Rule gave leave to move, without leave reserved, when the 
 finding entered did not agree with the verdict actually given. The present 
 Rule gives leave to move, without leave reserved, where the judgment 
 directed to be entered does not agree with the finding entered. The 
 judgment entered might, under the old practice, have been amended pn 
 application to the Court, both in its form and in its substance.* 
 
 Rule 6. 
 
 On every motion made under either of the last two 
 preceding Rules, the order shall be an order to show cause, 
 and shall be returnable in' eight days. The motion shall 
 be made within four days after the trial if the Divisional 
 Court is then sitting, or within the first four days after 
 the commencement of the sitting of the Divisional Court 
 next after the trial, or within such extended time as a 
 Court or Judge may allow. 
 
 This is Rule 6 of the XXXVth Order of the Rules of Court drawji up 
 in 1874 under the Principal Act. 
 
 "Returnable in 8 days." This is the time fixed for showing came on a 
 Rule nisi for a new trial. Order XXXIX, Rule 1. 
 
 " Within 4 days, &c." The time within which the application is to be 
 made is identical with that fixed by Order XXXIX, Rule 1, for moving 
 for a new trial. 
 
 Rule 7. 
 
 Where issues have been ordered to be tried, or issues 
 or questions of fact to be determined in any manner, the 
 plaintiff may set down the action on motion for judgment 
 as soon as such issues or questions have been determined. 
 If he does not so set it down, and give notice thereof 
 to the other parties within ten days after his right so to 
 do has arisen, then, after the expiration of such ten days, 
 
 *Archbold's Practice, p. 545,
 
 460 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 any defendant may set down the action on motion for 
 judgment, and give notice thereof to the other parties. 
 
 This is Rule 7 of the XXXVth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 See Rule 3 of this Order, and note to Rule 2. 
 
 The present Rule seems to contemplate the trial of particular issues as 
 well as the trial of "the issue," properly so called, in an action : and the 
 trial thereof in any of the "manners" mentioned in Order XXXVI, 
 Rule 2. 
 
 Rule 8. 
 
 Where issues have been ordered to be tried, or issues 
 or questions of fact to be determined in any manner, 
 and some only of such issues of questions of fact have 
 been tried or determined, any party who considers that 
 the result of such trial or determination renders the 
 trial or determination of the others of them unnecessary, 
 or renders it desirable that the trial or determination 
 thereof should be postponed, may apply to the Court or 
 a Judge for leave to set down the action on motion for 
 judgment, without waiting for such trial or determination. 
 And the Court or Judge may, if satisfied with the 
 expediency thereof, give such leave^ upon such terms, 
 if any, as shall appear just, and may give any directions 
 which may appear desirable as to postponing the trial of 
 the other questions of fact. 
 
 This is Rule 8 of the XXXVth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 Under the old practice, the verdict must have been given on all the 
 issues : but the Jury might, by consent, have been discharged from finding 
 a verdict as to one or more of the issues.* 
 
 By Order XXXVI, Rule 6, the Judge may in future order that " one 
 or more questions of fact be tried before the others." The present Rule 
 assumes the exercise of this power by the Judge. The Rule contem- 
 plates also the trial of any of these separate questions in any of the modes 
 mentioned in Order XXXVIj Rule 2; 
 
 Rule 9. 
 
 No action shall, except by leave of the Court or a 
 Judge, be set down on motion for judgment after the 
 
 Archbold's Practice, p. 448.
 
 RULES OF COUKT. 461 
 
 expiration of one year from the time when the party 
 seeking to set down the same first became entitled so to do. 
 
 This is Rule 9 of the XXXVth Order of the Rules of Court drawn up 
 n 1874, under the Principal Act. Compare with this Rule Reg. Gen!, 
 Hil., T., 1853, Rule 176, which requires a calendar month's notice of in- 
 tention to proceed, *' in all causes which there have been no proceedings 
 for one year from the last proceeding." A plaintiff must declare within a 
 year (Common Law Procedure Act, 1852, s. 58). 
 
 Rule 10. 
 
 Upon a motion for judgment, or for a new triai, the Court 
 may, if satisfied that it has before it all the materials ne- 
 cessary for finally determining the questions in dispute, or 
 any of them, or for awarding any relief sought, give judg- 
 ment accordingly ; or may, if it shall be of opinion that 
 it has not sufficient materials before it to enable it to give 
 judgment, direct the motion to stand over for further 
 consideration and direct such issues or questions to be tried 
 or determined and such accounts and inquiries to be taken 
 and made, as it may think fit. 
 
 This is Rule 10 of the XXXVth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act, the words " or any other motion under 
 the provisions of the 48th Section of the Act "being omitted after the 
 words " new trial." 
 
 " Upon a motion." The language might mean that the Rule would be 
 made absolute in the first instance ; but this can hardly be the meaning, 
 as an opportunity must be afforded the opposite party of showing cause, 
 under Order XXXIX, Rule 1 and Rule 6 of this Order. 
 
 Rule 11. 
 
 Any party to an action may at any stage thereof apply 
 to the Court or a Judge for such order as he may, upon 
 any admissions of fact in the pleadings, be entitled to, 
 without waiting for the determination of any other ques- 
 tion between the parties. The foregoing Rules of this 
 Order shall not apply to such applications, but any such
 
 462 SUPREME COCRT OP JUDICATURE ACT, 1875. 
 
 application may be made by motion, so soon as the right 
 of the party applying to the relief claimed has appeared 
 from the pleadings. The Court or a Judge may, on any 
 such application, give such relief, subject to such terms, 
 if any, as such Court or Judge may think fit. 
 
 The' first clause of this Rule is a re-enactment of Rule 40 of the Prin- 
 cipal Act. The second and third clauses of the Rule are copied from the 
 llth Rule of the XXXVth Order of the Rules of Court drawn up in 1874 
 under the Principal Act, " the foregoing Rules of this Order shall not 
 apply to such applications " being substituted for " none of the Rules of 
 this Order shall apply to applications- under section 40 of the Schedule to 
 the Act," so as to adapt, the Rule to the present Act. 
 
 This Rule is copied from the recommendations of the Judicature Com- 
 mission : " We think that either party should be at liberty to apply at 
 any time for such order as he may, upon the admitted facts of the case, be 
 entitled to, without waiting for the determination of any other questions 
 between the parties." 
 
 See also Order XXIX, Rule 13. 
 
 The modus operandi presented by this Rule is identical, mutatis mutandis, 
 with the procedure in Chancery known as " Motion for Decree," the pre- 
 sent procedure being, however, more elastic, as the motion may be made 
 " at any stage of an action," while the " Motion for Decree " musthavebeen 
 made before replication. 
 
 ORDER XLI. 
 
 ENTRY OF JUDGMENT. 
 
 Rule 1. 
 
 Every judgment shall be entered by the proper officer 
 in the book to be kept for the purpose. The party enter- 
 ing the judgment shall deliver to the officer a copy of 
 the whole of the pleadings in the action other than any 
 petition or summons ; such copy shall be in print, except 
 such parts (if any) of the pleadings as are by these Rules 
 permitted to be written : Provided that no copy need be 
 delivered of any pleading a copy of which has been de- 
 livered on entering any previous judgment in such action. 
 The forms in Appendix (D) hereto may be used, with such 
 variations as circumstances may require. 
 
 This is Rule 1 of the 36th Order of the Rules of Court drawn up in 
 1874 under the Principal Act, with the addition of the words " other than 
 ,ny petition or summons," and the proviso and last clause.
 
 RULES OF COURT. 463 
 
 The forms in Appendix (D) are new. 
 
 The " proper officer" in actions at Common Law has hitherto been the 
 Master who entered the judgment in his hook, at the time of signing 
 it.* The " proper officer " in the Court of Chancery has hitherto been one 
 of the entering clerksf of the Registrar's office, who entered the decree 
 pronounced in the cause in the Registrar's book, within one day after it 
 has been left for entry. The entry is examined by the entering clerk, and 
 marked with his initials. J Indexes of the entries of decrees are made by 
 the entering clerks, and with the Registrar's books, are, when completed, 
 transmitted to the Report Office in Chancery Lane, where both are pre- 
 served under the direction of the Clerks of Records and Writs. On pay- 
 ment of a small fee the public can inspect them during office hours, i.e., from 
 9 to 3 in the forenoon and 4 to 6 in the afternoon. See the Appendix. 
 
 Reference is made in Order XXXVI, Rule 23, to " the officer by whom 
 judgments ought to be entered," and his absence from the trial at Nisi 
 Prius is alluded to as a likely occurrence. If the masters or the entering 
 clerks continue to be " the proper officers " for entering judgments (a 
 word which, according to the interpretation clause, s. 100 of the 
 Principal Act, includes "decrees") it is evident that their presence on 
 Circuit, Or even at the London and Middlesex sittings, will be an unlikely 
 incident. Hence the " book" required to be kept there by that Rule for 
 the purpose of entering "findings" and "certificates" will generally be 
 in the custody of the Associate. 
 
 A very nice question arises as to what is the effect of this Order and of 
 Order XXXVI,Rules 22,23, and 24, upon the previously existing practice in 
 trials at Common Law. Are the Nisi Prius Record and the postea to be 
 things of the past merely ? Not the faintest allusion is made to them 
 in this Schedule, they are simply ignored. Dr. Stephens, writing in 
 1874, points out that the postea is not referred to in the Rules of Procedure 
 annexed to the Judicature Act of 1873 ; but, he adds, "an analogous practice 
 to that now in use will probably be prescribed. "|| 
 
 An examination of the forms in Appendix (B), No 15, and Appendix 
 (D), would lead to an opposite conclusion now. 
 
 Rule 2. 
 
 Where any judgment is pronounced by the Court or a 
 Judge in Court, the entry of the judgment shall be dated 
 as of the day on which such judgment is pronounced, and 
 the judgment shall take effect from that date. 
 
 This is Rule 2 of the XXXVIth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 The Rule embodies the practice of the Court of Chancery. 
 Decrees in that Court were dated of the day on which judgment was 
 
 * See a copy of it in the Notanda. 
 t There are two, A to K, and K to Z. 
 
 I Order 1, Rule 18 of the Consolidated Orders of the Court of Chancery. 
 $ In vacations from 1 1 to 1, except on Mondays and Saturdays when 
 the offices are closed. 
 
 || 3 Steph. Comm. p. 558, n (y).
 
 464 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 actually pronounced,* and the recital of the day, month and year when it 
 was pronounced preceded the other formal parts pf the decree, f 
 
 Rule 3. 
 
 In all cases not within the last preceding Rule, the 
 entry of judgment shall be dated as of the day on which 
 the requisite documents are left with the proper officer 
 for the purpose of such entry, and the judgment shall take 
 effect from that date. t 
 
 This is Rule 3 of the XXXVIth Order of the Rules of Court drawn up in 
 1874 under the Principal Act. 
 
 By Rule 56 of Hil. T. 1853, all judgments, whether interlocutory or 
 final, shall be entered of record of the day of the month or the year, whether 
 in term or vacation, when signed, and shall not have relation to any other 
 day. "Signing" and " entering" judgment are used in the present Act 
 indiscriminately (see, e.g., Order XIII., Rules 3 and 4). They are con- 
 temporaneous acts, hut not the same act. (See Appendix). 
 
 Upon every decree entered in the Registrar's book by one of the enter- 
 ing clerks he marked the day of the month and year when the same was so 
 left for entry. J This date had to be reproduced in every writ of execu- 
 tion. 
 
 Rule 4. 
 
 Where under the Act, or these Rules, or otherwise, it 
 is provided that any judgment may be entered or signed 
 upon the filing of any affidavit or production of any 
 document, the officer shall examine the affidavit or 
 document produced, and if the same be regular, and 
 contain all that is by law required, he shall enter judg- 
 ment accordingly. 
 
 This is Rule 4 of Order XXXVIth of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 This is in accordance with the practice of the Court of Chancery. At 
 the time of " bespeaking" a decree, the party bespeaking it must leave with 
 the Registrar in case any party or person served does not appear at the 
 hearing, an affidavit of service on such party or person. If admissions 
 are to be entered as read, the original paper of admissions, signed by the 
 parties or their solicitors, must be left for inspection. || If a traversing 
 
 * See Attorney-General v. Stamford, 7 Jur., 359, L.C. 
 f Daniel's Chancery Practice, pp. 844, n (by) 862. 
 
 J Order XXIX., Rule 7, of the Consolidated Orders of the Court of 
 Chancery. 
 
 Reg. Regul., 16th Mar. 1860, Rule 21. \\Ibid: Rule 23.
 
 RULES OF COURT. 465 
 
 note has been filed, and the defendant does not appear at the hearing, the 
 Record and Writ Clerk's certificate that the note has been filed, and an affi- 
 davit of service of a copy of the note, and of subpoena to hear judgment 
 must be left for inspection.* If the Bill has been taken pro eonfesso, the 
 order of the Record and Writ Clerk to attend at the hearing, with the 
 record of the Bill, and any previous orders as to contempt, must be left for 
 inspection, f 
 
 Rule 5. 
 
 "Where by the Act, or these Rules, or otherwise, any 
 judgment may be entered pursuant to any order or certifi- 
 cate, or return to any writ, the production of such 
 order or certificate sealed with the seal of the Court, 
 or of such return, shall be a sufficient authority to the 
 officer to enter judgment accordingly. 
 
 See the note to the last Rule, and to Rule 1. 
 
 This is Rule 5 of the XXXVIth Order of the Rules of Court drawn up in 
 1874 under the Principal Act, the words " or Schedule," being omitted 
 after the word "Act." 
 
 " Any certificate. " The reference here is to the certificate of the finding 
 of the Jury, required to be kept in a book by the Associate under Order 
 XXXVI. , Rule 23. 
 
 This Rule includes a repetition of Order XXXVI., Rule 24. 
 
 "Return to any writ." This refers, more particularly, to the return by 
 the Sheriff of the inquisition as to the quantum of damages, under a writ 
 of inquiry. 
 
 " Sealed with the seal of the Court." This is a practice, analogous to 
 the Crown practice of stamping the postea or judgment paper with the 
 seal of the Court. 
 
 Rule 6. 
 
 Any judgment of nonsuit, unless the Court or a Judge 
 otherwise directs, shall have the same effect as a judg- 
 ment upon the merits for the defendant ; but in any 
 case of mistake, surprise, or accident, any judgment of 
 nonsuit may be set aside on such terms, as to payment 
 of costs and otherwise, as to the Court or a Judge shall 
 seem just. 
 
 This Rule is a re-enactment of the last clause of the 46th Rule of the 
 Principal Act. As to " nonsuit," see Order XXXVI. , Rule 19. This 
 Rule will afford a check, it may be assumed, upon plaintiffs electing to be 
 
 * Reg. Regul., 15 Mar., 1860, Rule 25. t 16., Rule 26. 
 
 30
 
 466 SUPREME COURT OF JUDICATURE ACT, 
 
 onsuited after they have put the defendant to the trouble of appearing 
 xt the trial. 
 
 ** The reason," says Mr. Serjt. Stephen, " of this practice is that after a 
 aonsuit, which is only a default, the plaintiff has been allowed to commence 
 the same suit again for the same cause of action, but after a verdict had 
 fcrthe defendant and judgment consequent thereupon, he is fur ever 
 4rred, unless the judgment be afterwards reversed, from attacking the 
 defendant upon the same ground of complaint."* 
 
 ORDER XLIL 
 
 EXECUTION. 
 
 Rule 1. 
 
 A judgment for the recovery by or payment to any 
 person of money may be enforced by any of the modes by 
 which a judgment or decree for the payment of money of 
 any Court whose jurisdiction is transferred by the said 
 Act might have been enforced at the time of the passing 
 thereof. 
 
 This is Rule 1 of the XXXVIIth Order of the Rules of Court, drawn 
 pin 1874 under the Principal Act. 
 
 The writs of execution for payment of money in use at Common Law 
 wereji. /rt., ler.fac., ca. sa., elegit, venditioni exponas, distrinyas nuper rirc- 
 toantem, fieri facias de bon is ecclesiasticis, and sequestrari facias de bo>i i- 
 Kmyticis. These were for the payment of money. There was also the writ 
 Aab.fac.pos. for the recovery of land and the writ of delivery for the 
 return of specific chattels detained. Forms of all these writs, - 
 Icr.fac. arAdistringras nuper vicecomitem, will be found in Appendix (F) to 
 tins Schedule. The writs of execution in use in the Court of Chancery 
 were fi. fa., elegit, venditioni exponas, fieri facias de bonis ecclesia.t/ici", 
 seqwestrari facias de bonis ecclesiasticis, attachment, and sequestration. The 
 fat six were borrowed from the Common Law, the last twof were peculiar 
 to the Court of Chancery. Forms of writs of attachment and seque-t ra- 
 tion will be found in Appendix (F.) 
 
 1 As regards the Court of Probate, by the Probate Act, 1857, s. 25, it was 
 enacted that " the Court of Probate shall have the like powers for enforcing 
 ieCTees and judgments given by the Court under this Act, as are by law 
 Tested in the Court of Chancery." 
 
 Attachment for contempt was the only compulsory process (except 
 warrants to arrest ships) ever resorted to in practice in the Admiralty 
 Court to enforce compliance with its decrees. J 
 
 * 3 Steph. Comm., p. 551. 
 
 f There was a writ of attachment at Common Law, but it was not a writ 
 f execution for money. 
 J "Williams and Bruce's Admiralty Practice, p. 299.
 
 RULES OF COURT. 467 
 
 Rule 2. 
 
 A judgment for the payment of money into Court 
 may be enforced by writ of sequestration, or in cases in 
 which attachment is authorised by law by attachment. 
 
 This is Rule 2 of the XXXVIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 See, as to this Rule, Orders XLIV. and XLVIL, infra; and also Order 
 XXIX., Rule 3, of the Consolidated Orders of the Court of Chancery. 
 
 See also the Debtors' Act, 1869, s. 8. 
 
 Rule 3. 
 
 A judgment for the recovery or for the delivery of the 
 possession of land may be enforced by writ of possession. 
 
 This is Rule 3 of the XXXVIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 This writ was known as the Common Law writ of hab.fac.pos., in eject- 
 ment. See further, as to the writ, Order XL VIII. 
 
 Rule 4. 
 
 A judgment for the recovery of any property other 
 than land or money may be enforced : 
 
 By writ for delivery of the property. 
 By writ of attachment. 
 By writ of sequestration. 
 
 This is Rule 4 of the XXXVIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 As to the writ of delivery, see Order XLIX. 
 
 As to the writ of attachment, see Order XLIV. and Rule 2 of this Order. 
 
 As to the writ of sequestration, see Order XL VII. and Rule 2 of Ihis 
 Order. 
 
 Rule 5. 
 
 A judgment requiring any person to do any act other 
 than the payment of money, or to abstain from doing 
 anything, may be enforced by writ of attachment or by 
 committal. 
 
 This is Rule 5 of the XXXVIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 "Attachment" and " committal" are, in one point of view, the same ; 
 Imt it is apprehended that " committal" here means the exercise of tho
 
 468 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 summary jurisdiction vested in every Judge of a Court of Becord of order- 
 ing without process or further proof the immediate apprehension and im- 
 prisonment of any party whom he considers guilty of contempt in open 
 Court. See Order XLII, Rule 2, of the Consolidated Orders. 
 
 (There are other cases, also, in which a Judge has power to commit to 
 prison without process.) 
 
 Rule 6. 
 
 In these Rules the term " writ of execution " shall in- 
 clude writs of fieri facias, capias, elegit, sequestration, 
 and attachment, and all subsequent writs that may issue 
 for giving effect thereto. And the term " issuing execu- 
 tion against any party " shall mean the issuing of any 
 such process against his person or property as under the 
 preceding Rules of this Order shall be applicable to the 
 case. 
 
 This is Eule 6 of the XXXVIIth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 As to writs of fi. fa. and eleyit, see Order XLIII. 
 
 As to writs of sequestration, see Order XL VII. 
 
 As to writs of attachment, see Order XL1V. 
 
 The writ of " capias " (ca. sa.) is not mentioned as applicable to any 
 " case " under any of " the preceding Rules ;" and the only mention of it is 
 in the present Rule. There seems to be a popular impression that the 
 writ of ca. sa. has been entirely abolished.* There are, however, several 
 cases to which it is still applicable, t 
 
 "All subsequent writs," e.g., "venditioni exponas; " see Order XLIII., 
 Rule 2. 
 
 Rule 7. 
 
 "Where a judgment is to the effect that any party is 
 entitled to any relief subject to or upon the fulfilment of 
 any condition or contingency, the party so entitled may, 
 upon the fulfilment of the condition or contingency, and 
 demand made upon the party against whom he is entitled 
 to relief, apply to the Court or a Judge for leave to issue 
 execution against such party. And the Court or Judge 
 may, if satisfied that the right to relief has arisen accord- 
 ing to the terms of the judgment, order that execution 
 
 * By the Debtors' Act, 1869. 
 
 t See Sections 4 and 5 of the Act just cited.
 
 RULES OF COURT. 469 
 
 issue accordingly, or may direct that any issue or question 
 necessary for the determination of the rights of the parties 
 be tried in any of the ways in which questions arising in 
 an action may be tried. 
 
 This is Rule 7 of the XXXVIIth Order of the Rules of Court drawn tip 
 in 1874 under the Principal Act. 
 
 This Rule must be read with Rule 23 of this Order, infra. 
 
 At Common Law it is not usual to specify any conditions or contingen- 
 cies in the judgment. The forms in the Schedule, Appendix (D), agree 
 with the former practice at Common Law. " It is adjudged that the 
 plaintiff recover against the defendant , and for his costs of 
 suit." " It is adjudged that the plaintiff recover possession of the land in 
 the said writ mentioned." "It is adjudged that the plaintiff recover 
 nothing against the defendant, and that the defendant recover against the 
 plaintiff for his costs of defence." In the case of judgment entered 
 up under a cognovit, or on a warrant of attorney, or on a consent order of 
 a Judge, the judgment is equally simple, absolute, and unconditional in its 
 terms ; but, before signing it, the conditions precedent (if any) must be 
 fulfilled. Also before issuing execution the conditions precedent (if any) 
 must be performed. Thus, if the defeazance to a warrant of attorney to con- 
 fess judgment, lays it down as a condition precedent to the issuing of execu- 
 tion, that a demand must be made of the money, to which the judgment 
 relates, such demand must be made accordingly,* before execution can 
 issue. But the judgment would say nothing about the demand. It would 
 be in the usual, simple, absolute and unconditional form. 
 
 The present Rule applies to cases of decrees in Chancery, f where by the 
 terms of the decree itself aome condition is specified or contingency pointed 
 out, which must be fulfilled, or happen, before execution can issue upon 
 the decree. 
 
 In all such cases, under the present Rule, three things must have con- 
 curred before execution can issue. First, the condition must have been 
 fulfilled, or the contingency have happened ; secondly, a demand must 
 have been made upon the party against whom the person is entitled to 
 relief ; and thirdly, an application must have been made to the Court, or a 
 Judge, and they or he must have been " satisfied" that the right to relief 
 has arisen according to the terms of the decree. 
 
 The Rule would seem to impose two new restrictions not imposed by the 
 previously existing law, J were it not that the 23rd Rule says that the 
 Rules of this Order shall not curtail any right heretofore existing to enforce 
 any decree. See, however, Order XLIV., Rule 2. 
 
 * Archbold's Practice, p. 973. 
 
 t By the interpretation clause of the Principal Act (s. 100),'' judgment" 
 in these Acts includes " decree." 
 
 % By Order XXIX., Rule 1, of the Consolidated Orders of the Court of 
 Chancery, no demand was necessary where any person was by any decree 
 directed to pay any money, or deliver up and transfer any property, real or 
 personal, to another. By the Order of the 7th of January, 1870, a Com- 
 mission of sequestration was issued, without any special order, at the expira- 
 tion of the time limited by any decree for the payment of money or costs.
 
 470 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 8. 
 
 Where a judgment is against partners in the name of 
 the firm, execution may issue in manner following : 
 (a.) Against any property of the partners as such. 
 (b.) Against any person who has admitted on the 
 pleadings that he is, or has been adjudged to be, a 
 partner. 
 
 (c.) Against any person who has been served, as a 
 partner, with the writ of summons, and has failed 
 to appear. 
 
 If the party who has obtained judgment claims to be 
 entitled to issue execution against any other person as 
 being a member of the firm, he may apply to the Court or 
 a Judge for leave so to do ; and the Court or Judge may 
 give such leave if the liability be not disputed, or, if such 
 liability be disputed, may order that the liability of such 
 person be tried and determined in any manner in which 
 any issue or question in an action may be tried and deter- 
 mined. 
 
 This is Rule 8 of tho XXXVIIth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act, the -word "a" being inserted before 
 " Judge." 
 
 As to proceedings against parties in the name of the firm see Order XII., 
 Rule 12, and Order XVI., Rule 10. 
 
 This Rule only applies to the case of parties sued in the name of the 
 firm. If one of two partners is sued, the old difficulties may still arise from 
 the circumstance that the seizure and disposal of the undivided share of one 
 partner under aji.fa. does not divest the other partner of his interest in the 
 partnership property.* 
 
 (c). As to service on one or more of tho partners, see Order IX., Rule 6. 
 
 Rule 9. 
 
 No writ of execution shall be issued without the pro- 
 duction to the officer by whom the same should be issued 
 of the judgment upon which the writ of execution is to 
 issue or an office copy thereof, showing the date of entry. 
 
 * See Burton v. Green, 3 Carr. and P. 306 ; Archbold's Practice, 
 pp. 659, 660.
 
 RULES OF COURT 471 
 
 And the officer shall be satisfied that the proper time hag 
 elapsed to entitle the judgment creditor to execution. 
 
 This is Eule 9 of the XXXVIIth Order of the Eules of Court drawn up in 
 1874 under the Principal Act. 
 
 " Production of the Judgment." This is in accordance with the former 
 practice at Common Law, as prescribed by Eeg. Gen. Hil. T., 1853, 
 Eule 71. "No writ of execution shall be issued till the judgment paper, 
 postea, or inquisition, as the case may be, has been seen by the proper 
 officer." It is also in accordance with the practice of the Court of 
 Chancery, the decree, or order, or an office copy of it must have been, 
 produced to the Eecord and Writ Clerk, and before issuing the writ he 
 must have been satisfied by affidavit of the due service of the decree, and 
 that it had not been obeyed.* 
 
 Rule 10. 
 
 No writ of execution shall be issued without the party 
 issuing it, or his solicitor, filing a prcecipe for that pur 
 pose. The prcccipe shall contain the title of the action, 
 the reference to the record, the date of the judgment, and 
 of the order, if any, directing the execution to be issued, 
 the names of the parties against whom, or of the firms 
 against whose goods, the execution is to be issued; and 
 shall be signed by the solicitor of the party issuing it, or 
 by the party issuing it, if he do so in person. The forms 
 in Appendix (E) hereto may be used, with such variations a 
 circumstances may require. 
 
 The forms in Appendix E. are new. 
 
 This Eule is Rule 10 of the XXXVIIth Order of the Eules of Court, 
 drawn up in 1874, under the Principal Act, the clause referring to the 
 forms in Appendix (E.) being added at the end of the Rule. 
 
 " No writ of execution shall be issued without a prcecipe being file4 
 with the proper officer." Eeg. Gen. Hil. T., 1853, Eule 71. The practice 
 in the Court of Chancery is the same. Previously to the writ being issued, 
 a copy of the pr&cipe nMist have been left with the entering clerk in the 
 Eegistrar's Office, and another copy have been marked by him as en- 
 tered; and the latter must also have been filed with the Record and 
 Writ Clerk at the time the writ was sealed.* 
 
 The forms of the prcccipe in Appendix (E) are taken from the Chan- 
 
 * Braithwaite's Pr., 167. 
 
 t Smith v. Thompson, 4 Mad. 179, Ord. I, Eule 18, of the Consolidate* 
 
 Orders of the Court of Chancery; Braithwaite's Pr., 161,
 
 472 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 eery practice, as -will at once be seen in comparing the forms of pr<z- 
 cipe given in the Form-book, accompanying Daniel's Chancery Practice,* 
 with the forms of pracipe contained in Chitty's Practice. t 
 
 Rule ILjj 
 
 Every writ of execution shall be indorsed with the 
 name and place of abode or office of business of the 
 solicitor actually suing out the same, and when the solicitor 
 actually suing out the writ shall sue out the same as agent 
 for another solicitor, the name and place of abode of 
 such other solicitor shall also be indorsed upon the writ ; 
 and in case no solicitor shall be employed to issue the 
 writ, then it shall be indorsed with a memorandum express- 
 ing that the same has been sued out by the plaintiff or 
 defendant in person, as the case may be, mentioning the 
 city, town, or parish, and also the name of the hamlet, 
 street, and number of the house of such plaintiff's or 
 defendant's residence, if any such there be. 
 
 This is Rule 11 of the XXXVII th Order of the Rules of Court 
 drawn up in 1874, under the Principal Act. 
 
 This Rule is copied verbatim from the Reg. Gen. Hil. T., 1853, Rule 73, 
 with the omission of the words of that Rule, which suppose the case of 
 an attorney suing out the writ who is not an attorney of the Court from 
 which the writ is issued, these words being unnecessary, as under section 
 87 of the Principal Act, all attorneys and solicitors of the Superior 
 Courts will be solicitors of the Supreme Court. See note to Order IV., 
 Rule 1, p. 289. 
 
 Rule 12. 
 
 Every writ of execution shall bear date of the day on 
 which it is issued. The forms in Appendix (F) hereto may 
 be used, with such variations as circumstances may require. 
 
 The forms in Appendix (F) are new. See Notes to Orders XLIII- 
 XLIX. 
 
 This is Rule 12 of the XXXVUth Order of the Rules of Court, drawn 
 tip in 1874, under the Principal Act, with the addition of the clause 
 referring to the forms in Appendix (F.) 
 
 The first clause of the Rule is copied from Reg. Gen. Hil. T., 1853, 
 Rule 72. 
 
 * PP. 312, 695, 977, 983, 967. 
 t PP. 303, 354.
 
 RULES OF COURT. 473 
 
 Rule 13. 
 
 In every case of execution the party entitled to ex- 
 ecution may levy the poundage*, fees, and expenses of 
 execution over and above the sum recovered. 
 
 This is Rule 13 of the XXXVIIth Order of the Rules of Court, drawn 
 up in 1874, uniler the Principal Act. 
 
 This Rule is copied verbatim from the 123rd section of the Common 
 Law Procedure Act, 1852. See also 29 Eliz. c. 4. 
 
 Rule 14. 
 
 Every writ of execution for the recovery of money 
 shall be indorsed with a direction to the sheriff, or other 
 officer or person to whom the writ is directed, to levy the 
 money really due and payable, and sought to be recovered 
 under the judgment, stating the amount, and also to 
 levy interest thereon, if sought to be recovered, at the rate 
 of 4 per cent, per annum from the time when the judg- 
 ment was entered up, provided that in cases where there 
 is an agreement between the parties that more than 4 
 per cenc. interest shall be secured by the judgment, then 
 the indorsement may be accordingly to levy the amount 
 of interest so agreed. 
 
 This is Rule 14 of the XXXVIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 This Rule is copied verbatim from Reg. Gen. Hil. T. 1853, Rule 76, 
 with the addition of the words " for the recovery of money," after " every 
 writ of execution." 
 
 Rule 15. 
 
 Every person to whom any sum of money or any 
 costs shall be payable under a judgment shall, im- 
 mediately after the time when the judgment was duly 
 entered, be entitled to sue out one or more writ or writs of 
 fieri facias or one or more writ or writs of elegit to 
 enforce payment thereof, subject, nevertheless, as 
 follows : 
 
 (a.) If the judgment is for payment within a period 
 
 * 12d. in every 1 ; if orer 100, 6d.for every 1 above 100.
 
 474 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 therein mentioned, no such writ as aforesaid shall 
 be issued until after the expiration of such period. 
 (I.) The Court or Judge at the time of giving judg- 
 ment, or the Court or a Judge afterwards, may 
 give leave to issue execution before, or may stay 
 execution until, any time after the expiration of 
 the periods hereinbefore prescribed. 
 
 This is Eule 15 of the XXXVIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 The previous practice at Common Law was prescribed by s. 120 of the 
 Common Law Procedure Act, 1852, and Eule 57 of the Beg. Gen. Hil. T., 
 1853,* under which execution issued in fourteen days after judgment was 
 signed, unless the Court or Judge ordered execution to issue at an earlier 
 or later period. It was usual for the Judge at the trial to grant execution 
 within 4 days, called "speedy execution" under 1 Win. IV., c. 7, s. 2, in 
 all substantially undefended actions for liquidated claims, and in ejectment 
 to recover vacant possession, f Against acceptors of bills of exchange and 
 makers of promissory notes speedy execution was granted, almost as a 
 matter of course. 
 
 The practice in Equity as to issuing a fi. fa. or elegit for payment of a 
 sum of money, was regulated by Order XXIX, Rule 6, of the Consoli- 
 dated Orders of the Court of Chancery, which required that a lunar month 
 (twenty-eight days)t should elapse from the entry of the decree before 
 suing out the writ. A writ of attachment, on the other hand, for the 
 non-performance of a decree, issued as soon as the Record and Writ Clerk 
 was satisfied by affidavit that the decree had been duly served, and had 
 not been obeyed. 
 
 A writ of sequestration issued on the return of the writ of attachment. 
 If, however, a time was limited by the decree for payment of any 
 money, or for the performance of any other act, a writ of sequestration 
 in the former case, and a writ of attachment in the latter, issued at the 
 expiration of the time so limited.^ 
 
 The present Rule, it will be seen, effects a very important alteration in 
 the law of execution in favour of the party who has entered judgment 
 for a sum of money or costs. He will, on the entry of the judgment, bo 
 entitled to IMMEDIATE EXECUTION by^./a. or elcgit, unless there be a time 
 limited by the judgment (or decree). The exception established by sub- 
 section (a) follows the 7th Rule of this Order, and the previous practice 
 of the Courts of Chancery. (See the note to that Rule.) A writ of 
 sequestration may issue, in the Chancery Division, as under the former 
 practice, at the expiration of the time limited, and this practice is extended 
 by OrderXLVII, infra, to the Common Law Divisions of the High Court. 
 
 * These enactments are both very obscurely expressed. The former 
 speaks of 14 day s after verdict ; the latter lumps up judgment and execution 
 together. 
 
 t Day's Common Law Procedure Acts, p. 143. Archbold's Practice, 
 p. 413. % Order XXXVII, Rule 10 of the Consolidated Orders. 
 
 Daniel's Chancery Practice, p. 908 ; Braithwaite's Pr., 167. 
 
 || Order of the 7th January, 1870.
 
 RULES OF COURT. 475 
 
 Subsection (i) saves the power of the Court or Judge to modify the 
 practice by accelerating or retarding execution. This subsection, it 
 would seem, by the word "hereinbefore," gives the Court or Judge 
 power to order the issue of execution before the time limited by a judg- 
 ment (or decree) has expired. 
 
 Rule 16. 
 
 A writ of execution, if unexecuted, shall remain in 
 force for one year only from its issue, unless renewed in 
 the manner hereinafter provided; but such writ may, at 
 any time before its expiration, by leave of the Court or a 
 Judge, be renewed, by the party issuing it, for one year 
 from the date of such renewal, and so on from time to 
 time during the continuance of the renewed writ, either 
 by being marked with a seal of the Court bearing the date 
 of the day, month, and year of such renewal, or by such 
 party giving a written notice of renewal to the sheriff, 
 signed by the party or his attorney, and bearing the like 
 seal of the Court ; and a writ of execution so renewed shall 
 have effect, and be entitled to priority, according to the 
 time of the original delivery thereof. 
 
 This is Rule 16 of Order XXXVII. of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 This Rule is copied almost verbatim from section 124 of the Common 
 Law Procedure Act, 1852. It omits, however, the direction- that the seal 
 shall be " kept at the office of the masters of the Court," and the word 
 "issue " has been substituted for " teste." 
 
 The notice to the sheriif is necessary where the writ is in the possession 
 of that functionary. If the party does not wish the writ to be executed, 
 however, he will retain it in his own possession after renewal as well as 
 before it. 
 
 There is a curious slip in this Rule, the word " attorney" having been 
 left in; it should have been "solicitor" (see s. 87 of the Princiipal 
 Act at p. 156). 
 
 Rule 17. 
 
 The production of a writ of execution, or of the notice 
 renewing the same, purporting to be marked with such 
 seal as in the last preceding Eule mentioned, showing the 
 same to have been renewed, shall be sufficient evidence 
 of its having been so renewed.
 
 476 SUPEEME COURT OF JUDICATURE ACT, 1875. 
 
 This is Rule 17 of Order XXXVII of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The Rule is copied from section 125 of the Common Law Procedure 
 Act, 1852. 
 
 "Sufficient evidence " means primd facie evidence (seo note to Order 
 TUT, Rule 2, p. 302). 
 
 Rule 18. 
 
 As between the original parties to a judgment, execu- 
 tion may issue at any time within six years from the 
 recovery of the judgment. 
 
 This is Rule 18 of the XXXVIIth Order of the Rules of Court, drawn 
 tip in 1874, under the Principal Act. 
 
 Section 128 of the Common Law Procedure Act, 1852, provided, that 
 " during the lives of the parties to a judgment or those of them during 
 whose lives execution may at present issue within a year and a day with- 
 out a scire facias, and within six years after the recovery of the judgment 
 execution may issue without a revival of the judgment." 
 
 Rule 19. 
 
 Where six years have elapsed since the judgment, 
 or any change has taken place by death or otherwise 
 in the parties entitled or liable to execution, the party 
 alleging himself to be entitled to execution may apply to 
 the Court or a Judge for leave to issue execution accord- 
 ingly. And such Court or Judge may, if satisfied that 
 the party so applying is entitled to issue execution, make 
 an order to that effect, or may order that any issue or 
 question necessary to determine the rights of the parties 
 shall be tried in any of the ways in which any question 
 in an action may be tried. And in either case such 
 Court or Judge may impose such terms, as to costs or 
 otherwise, as shall seem just. 
 
 This is Rule 19 of the XXXVIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 This Rule is taken from sections 129 and 130 of the Common Law 
 Procedure Act, 1852, with, however, some important changes. S. 129 of 
 the Common Law Procedure Act is classed in most of the text hooks not 
 under the head of "renewal of writs of execution," but of "revival of
 
 RULES OF COURT. 477 
 
 judgments."* Revival of judgments is entirely ignored in the present 
 enactment, and the process applicable to it is appropriated, to some extent, 
 to the renewal of writs. The 129th section gave the party desirous of 
 renewing his judgment the alternative of suing out a writ of revivor of 
 the judgment, or of applying to the Court or a Judge for leave to enter 
 a " suggestion" that it manifestly appeared that the party "was entitled to 
 issue execution upon the judgment, and upon such application the Court or 
 Judge might (by s. 130) allow such suggestion to be entered accordingly. 
 The framers of the present Rule have adapted the alternative modes of pro- 
 cedure, discarding the " suggestion," and substituting for it a simple 
 " order that the party is entitled to issue execution," and discarding 
 the title "writ of revivor," and substituting for it an " order" that an 
 "issue " be "tried" "in any of the ways in which any question in an 
 action may be tried." S. 131 of the Common Law Procedure Act, 1852, 
 provided that ' ' the pleadings and proceedings upon a writ of revivor should 
 be the same as in an ordinary action." The " ways " in which an action 
 under this Act may be " tried" are specified in Order XXXVI., Rule 2. The 
 costs are to be in the discretion of the Court or Judge. The old practice 
 as to costs is contained in ss. 130 and 131 oflhe Common Law Pro- 
 cedure Act, 1852. 
 
 In the case of a writ of revivor the writ of execution must have been 
 founded on the judgment on the writ of revivor. t It is apprehended that 
 the practice will be similar where an issue is under this Rule directed to 
 be tried. 
 
 It will be perceived that there is no limit of time fixed in this Rule 
 within which the application must be made. A writ of revivor might 
 have issued at any time within twenty years.J 
 
 Rule 20. 
 
 Every order of the Court or a Judge, whether in an 
 action, cause or matter, may be enforced in the same 
 manner as a judgment to the same effect. 
 
 This is Rule 20 of the XXXVIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 This is in accordance with the practice of the Court of Chancery. The 
 process to enforce decrees and the process to enforce orders was in that 
 Court absolutely identical. The XXIXth of the Consolidated Orders 
 treats of them both together, -without any distinction. 
 
 Rule 21. 
 
 In cases other than those mentioned in Rule 18, any 
 person, not being a party in an action, who obtains any 
 order or in whose favour any order is made, shall be 
 
 * See Chitty's "Forms," book 8, chapter 8; Archbold's Practice, 
 vol. 2, part 3, chapter 6. In Lush's Practice judgment and execution are 
 treated of together in book 1, chapter 9 (see p- 577). 
 
 t Davis v, Norton, 1 Bing. 133. 
 
 J And after twenty years, if there was an acknowledgment within 
 the twenty years, 3 & 4 Wm.IV., c. 29, s. 40.
 
 478 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 entitled to enforce obedience to such order by the same 
 process as if he were a party to the action ; and any person 
 not being a party in an action, against whom obedience 
 to any judgment or order may be enforced, shall be liable 
 to the same process for enforcing obedience to such judg- 
 ment or order as if he were a party to the action. 
 
 This is Rule 21 of the XXXVIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 This Rule is copied verbatim from Order XXIX., Rule 2, of the 
 Consolidated Orders of the Court of Chancery. It works a great and 
 salutary change in Common Law Procedure. As a general rule, where a 
 person who was not a party to a judgment derived a henefit hy, or be- 
 came chargeable to the execution, proceedings had to be taken by writ 
 of revivor, scire facias, or " suggestion," to make him a party to the 
 judgment* before issuing execution a cumbrous procedure. 
 
 Rule 22. 
 
 No proceeding by audita quereld shall hereafter be 
 used ; but any party against whom judgment has been 
 given may apply to the Court or a Judge for a stay of exe- 
 cution or other relief against such judgment, upon the 
 ground of facts which have arisen too late to be pleaded ; 
 and the Court or Judge may give such relief and upon 
 such terms as may be just 
 
 This is Rule 22 of Order XXXVII. of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 The audita quereld was a writ that lay for the defendant against whom 
 judgment was given, and who was therefore in danger of execution, or 
 perhaps actually in execution, but who was entitled to be relieved upon 
 some matter of discharge which had happened since the judgment, as if 
 the plaintiff had given him a general release, or if he had paid the debt 
 to the plaintiff. It was a writ directed to the Court in which the judgment 
 was recovered, stating that the complaint of the defendant had been heard, 
 audita quereld defendentis, and then setting forth the matter of complaint, 
 and enjoining the Court to call the parties before them, and cause justice 
 to be done. But the indulgence shown by the Courts in granting relief 
 upon motion almost superseded the remedy by duditd quereld, and it might 
 be said to have been nearly obsolete, t 
 
 * 2 Saund. 6, n. 1 ; Penoyer v. Brace, 1 Lord Raym., 244 ; Ransford v. 
 Bosanquet, 12 A. and E. 813 ; 2 Archbold's Practice, p. 1,122. 
 f See Steph. Black., vol. 3, p. 577 n (n) 7th edn. ; 2 Saund. 137e.
 
 RULES OF COURT. 479 
 
 A simple application by motion to a Court or by summons to a Judge 
 is substituted by the present Eule for the abolished writ oiauditd qucrcld. 
 An affidavit of the facts will probably be necessary, as it was under the 
 Keg. Gen. Hil. T., 1853, Eule 79.* 
 
 Rule 23. 
 
 Nothing in any of the Rules of this Order shall take 
 a\vay or curtail any right heretofore existing to enforce or 
 give effect to any judgment or order in any manner or 
 against any person or property whatsoever. 
 
 This is Eule 23 of the XXXVIIth Order of the Eules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 See, however, the note to Eule 7 of this Order, and Order XLIV., 
 Eule 2. 
 
 Rule 24. 
 
 Nothing in this Order shall affect the order in -which 
 writs of execution may be issued. 
 
 I Tliis is Rule 24 of the XXXVIIth Order of the Eules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 Writs of./z. fa., lev, fac., ca. s.f and elegit may all be sued out at the 
 same time ; but when any one has been effectually executed, nothing 
 can be done on another till the first has been returned. When returned, 
 if it is a fi. fa., and it appears by the return that part only has been 
 executed, or if it is an elegit and part only has been levied on the 
 floods, the party entitled to execution may issue a new writ of fi. fa., 
 lei\ fac., ca. sa., or elegit for the remainder. ivo_writ can be sued out 
 1'ur the remainder, however trifling the part may be which has been 
 levied, until after the previous writ lias been returned. If, on the. other 
 hand, the body be taken under a en. sa., no other writ can he executed 
 in respect of the same judgment, unless the party whose body is taken 
 escape, or be rescued, or die in execution. So, if lands be extended <;n 
 an t ley it and delivered to the judgment creditor, &Ji.fa., or ca. sa., or 
 lev. fac. or fresh elegit cannot be executed against the judgment debtor 
 in respect of the judgment upon which the elegit issued. 
 
 All this learning of the "succession of writs" is preserved by the 
 present Eule. 
 
 ORDER XLIII. 
 
 WRITS OF FIERI FACIAS AND ELEGIT. 
 
 Rule 1. 
 
 Writs of fieri facias and of elegit shall have the same 
 force j?nd effect as the like writs have heretofore had, 
 
 * Dearie v. Kcr, 4 Ex., 82. 
 
 t Subject as to ca. sa., of course, to the Debtors' Act, 1869, s. 4,
 
 480 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 and shall be executed in the same manner in which the 
 like writs have heretofore been executed. 
 
 This is Rule 1 of the XXXVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 See the note to Order XLIL, Rule 24, supra, as to the succession in 
 which writs of fi. fa. and elegit may be issued. 
 
 A form of the writ of^?. fa. will be found in the Appendix (F) 'No. 1 ; and 
 of the writ of elegit in Appendix (F) No. 2. The form of the writ of fi. fa. 
 is modelled upon the form of the writ contained in the Schedule (F), 
 No. 1, to the Consolidated Orders of the Court of Chancery, not upon the 
 Common Law form contained in the Schedule to the Reg. Gen. Hil. T., 
 1853. This will be seen to be the case on comparing the forms. The 
 mention of costs, however, eo nomine, in the form contained in Appendix 
 (F) to this Act is new, and it is important for the legal practitioner to note 
 that it is necessary to specify their amount and also the date of the taxing- 
 master's certificate, and that there is a separate direction to the sheriff to 
 levy the amount of the costs plus 4 interest upon them from the date 
 of the certificate of taxation. The rate of interest on the sum recovered 
 is left open, instead of being fixed at 4 per cent, as heretofore in both 
 Common Law and Chancery forms. (But see Order XLIL, Rule 14.) 
 
 The Common Law form directs the sheriff to levy the sum recovered 
 plus interest at 4 per cent. 
 
 The Chancery form first (Erects the sheriff to levy the sum recovered, 
 and then separately directs him to levy interest on that sum at 4 per 
 cent. 
 
 The new form first directs the sheriff to levy the sum recovered plus 
 interest on that sum at per cent., and then separately directs 
 
 him to levy the costs plus interest on them at 4 per cent. 
 
 The same particulars as to costs must be entered in the writ of elegit as 
 in the writ of fi. fa* 
 
 It will be seen that the writ is tested, " witness OURSELVES at "West- 
 minster," &c. The form of teste to several of the other writs ~a '' "Witness 
 ourselfat Westminster, the day of 1875, in the ye^r of our reign." 
 
 This is much more in keeping with the regal style tlian the Common 
 Law form of teste, " Witness Sir Alexander Cockbu*/t, Knight, at West- 
 minster, the day of in the year of our Lord ." It will be seen on 
 turning to the Schedule (G) to the Consolidate u Orders of the Court of 
 Chancery that the form of teste in the Appendix (F) to this Schedule is 
 taken from the form of teste in use in the Court of Chancery, but, curiously 
 enough, omitting the name of the Judge, which appears at the foot of 
 the teste on the Chancery forms. The form given of teste to the writ 
 of summons is merely " Witness, &c. " in Appendix A to this Schedule. 
 The full form of the teste to the writ of subpoena in Chancery, given in 
 Schedule (E) of the Consolidated Order, is " Witness ourself at West- 
 minster the day of in the year of our reign" the name of the 
 M. R. being subscribed.^ 
 
 * The learning relative to writs of fi. fa. and elegit is very familiar and 
 accessible. The reader who desires further information is referred to 
 Archbold's Practice, part 1, chap. XXVII. (I, II, III). 
 
 t See Order II., Rule 8j, supra. The name of the Chancellor will be 
 subscribed at the foot of the teste, not in the middle, like that of the 
 chiefs of the Common Law.
 
 RULES OF COURT. 481 
 
 It appears to be that both in the case of writs of summons and writs of 
 execution the teste will be as follows : " Witness ourselves at Westminster 
 the day of 187 in the year of our reign. 
 
 " CAIRNS, C." 
 
 Rule 2. 
 
 Writs of venditioni exponas, distringas nuper mcecomitem, 
 fieri facias de bonis ecclesiastic is, sequestrari facias de bonis 
 ecclesiasticis, and all other writs in aid of a writ of fieri 
 facias or of elegit, may be issued and executed in the same 
 cases and in the same manner as heretofore. 
 
 This is Eule 1 of the XXXVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 A. form of the writ venditioni exponas will be found in Appendix (F), 
 No. 3 ; of the writ fieri facias de bonis ecclesiasticis in Appendix (F), 
 Tffos. 4 and 5 ; and of the writ sequestrari facias de bonis ecclesiasticis in 
 Appendix (F), No. 6. 
 
 Upon the return of the sheriff that the goods remain on his hands 
 under the writ oifi.fa.for want of buyers, the party entitled to execution 
 may sue out a writ of venditioni exponas, which is a kind of supplemental 
 writ oifi.fa., commanding the sheriff to sell the goods forthwith. Under 
 this writ the sheriff must sell, and is therefore justified in doing so at the 
 best price that he can get, however inadequate it may be. This writ the 
 sheriff may be called on by a side bar rule to return. 
 
 Where a sheriff goes out of office after returning that he has levied, 
 but that the goods remain in his hands for want of buyers, instead of 
 suing out a writ of venditioni exponas, the party entitled to execution may 
 sue out a writ of distringas nuper vieecomitem, directed to the then present 
 sheriff, commanding him to distrain the late sheriff to sell the goods. The 
 former sheriff must thereupon sell the goods and pay over the money, 
 otherwise he will forfeit issues to the amount of the debt. 
 
 When the sheriff to a writ vffi.fa. returns nulla bona, and that the party 
 against whom it was issued is a beneficed clerk, not having any lay fee, 
 the party entitled to execution may sue out a fi. fa. de bonis ecclesiasticis, 
 directed to the bishop of the diocese (or to the archbishop, during the 
 vacancy of the bishop's see), commanding him to cause to be made of the 
 ecclesiastical goods belonging to the judgment debtor within his diocese, 
 the amount of the judgment debt. The writ must be delivered to the 
 registrar of the diocese, who will thereupon issue a sequestration, directed 
 to the churchwardens, requiring them to levy the debt of the tithes and 
 other profits of the clerk's benefice. The writ has priority only from the 
 date of its publication, which is effected by affixing a copy of the writ on 
 the doors of the churches and chapels within the parish in which the 
 benefice is situated. 
 
 Instead of a_/f. fa. de bonis ecclesiasticis, the party entitled to execution 
 may sue out against a judgment debtor who is a beneficed clerk a writ of 
 sequestrari facias, also directed to the bishop of the diocese, commanding 
 him to enter into the rectory and parish church and take and sequester 
 the same into his possession, and hold them until all the rents, tithes, 
 rent-charges, oblations, obventions, fruits, issues, and profits, and of the 
 
 31
 
 482 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 other ecclesiastical goods in the diocese belonging to the debtor as rector, 
 he shall have levied the judgment debt. This writ is in the nature of a 
 levari facias. The rector cannot be turned out, however, of the parsonage 
 house, as he is bound to reside notwithstanding the sequestration. The 
 sequestrator is empowered by 12 & 13 Viet., c. 67, to bring actions and 
 levy distresses in his own name. 
 
 ORDER XLIV. 
 
 ATTACHMENT. 
 
 Rule 1. 
 
 A writ of attachment shall have the same effect as a 
 writ of attachment issued out of the Court of Chancery 
 has heretofore had. 
 
 This is Rule 1 of the XXXIXth Order of the Eules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 See a form of the writ of attachment in Appendix (F), No. 9. There 
 are different kinds of writs of attachment, e.g., attachment in mesne 
 piocess to enforce appearance, &c., and attachment on final process, to 
 enforce the execution of decrees and orders. It is to the latter that allu- 
 sion is here made. The form of the writ in all cases is the same, the 
 indorsement only is different in different cases. The form in the Appendix 
 (F), No. 9 r is the stereotyped one.* The instrument (which should 
 strictly follow the language of the decree) recites so much of the 
 mandatory part of the decree as directs payment of the money or per- 
 formance of the act. 
 
 The following form of indorsement may be useful : 
 " By the Court. 
 
 " For breach of a decree [or an order] dated the day of 
 1875, made in a cause wherein C.D. is plaintiff, and A.B. is defendant, 
 in not [here recite so much of the mandatory part of the decree [or order] 
 as directs payment of the money or performance of the act, and explains 
 the purpose for which the attachment is issued], as by the said decree the 
 within-named A.B. was commanded." f 
 
 Rule 2. 
 
 No writ of attachment shall be issued without the 
 leave of the Court or a Judge, to be applied for on notice 
 to the party against whom the attachment is to be issued. 
 
 This is Rule 2 of the XXXIXth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 This Rule throws considerable light upon Order XLIL, Rule 7 (see 
 the note to that Rule). It alters completely the former practice in the 
 
 *It will be found, todidem verbis, in Daniel's Form-book, 313. 
 t Adapted from Daniel's Form-book, 034.
 
 RULES OF COURT. 483 
 
 Court of Chancery. The writ issued there without any leave of Court or 
 Judge, all that was necessary being to satisfy (by affidavit) the Record 
 and Writ Clerk who sealed it that the decree or order had been duly 
 served, and had not been obeyed. 
 
 ORDER XLV. 
 
 ATTACHMENT OF DEBTS. 
 
 Rule 1. 
 
 Where a j udgment is for the recovery by or payment 
 to any person of money, the party entitled to enforce it 
 may apply to the Court or a Judge for an order that the 
 judgment debtor be orally examined as to whether any 
 and what debts are owing to him, before an officer of the 
 Court, or such other person as the Court or Judge shall 
 appoint ; and the Court or Judge may make an order for 
 the examination of such judgment debtor, and for the 
 production of any books or documents. 
 
 This is Eule 1 of the XLth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The Rule is copied from section 60 of the Common Law Procedure 
 Act, 1854. 
 
 Hitherto, the Court of Chancery has had no proceeding analogous to 
 that of attachment of debts at Common Law,* and a person to whom 
 money has been ordered to be paid by a Court of Equity, has been held 
 not to be a judgment creditor within the meaning of the sections of the 
 Common Law Procedure Act, 1854, relating to attachment of debts. t 
 Henceforth, under this Order, the practice will te the same in Chancery 
 as at Common Law. 
 
 It has been held that a debt of unascertained amount, % a debt due to one 
 or more of several joint judgment debtors,^ a debt due, but not payable 
 till some future time,|| rent due in the hands of a tenant,1T and the pro- 
 ceeds of an execution in the hands of the sheriiF,** are all attachable. 
 
 Rule 2. 
 The Court or a Judge may, upon the ex parte appii- 
 
 * See Horslcy v. Cox, L. R. 4 Ch. 92. 
 
 t Ex parte financial Corporation, L. R. 4 C. P. 155. 
 
 % Daniel li. McCarthy, 7 Ir. Com. Law Rep. 261, Q. B. 
 
 Miller v. Mynn, 1 E. & E., 1,075. 
 
 || Sparks v. Younge, 8 Ir. Com. Law Rep. 251, Ex. 
 
 tt Mitchell v. Lee, L. R. 2, Q. B., 259. 
 
 ** Murray v. Simpson, 8 Com. Law Rep., Appendix XLY., Ex.
 
 484 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 cation of such judgment creditor, either before or after 
 such oral examination, and upon affidavit by himself or 
 his solicitor stating that judgment has been recovered, and 
 that it is still unsatisfied, and to what amount, and that 
 any other person is indebted to the judgment debtor, and 
 is within the jurisdiction, order that all debts owing or 
 accruing from such third person (hereinafter called " the 
 garnishee" ) to the judgment debtor shall be attached to 
 answer the judgment debt ; and by the same or any sub- 
 sequent order it may be ordered that the garnishee shall 
 appear before the Court or a Judge, or an officer of the 
 Court, as such Court or Judge shall appoint, to show cause 
 why he should not pay the judgment creditor the debt due 
 from him to the judgment debtor, or so much thereof as 
 may be sufficient to satisfy the judgment debt. 
 
 This is Rule 2 of the XLth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The Rule is copied almost verbatim from the 61st section of the Com- 
 mon Law Procedure Act, 1854.* 
 
 As a general rule, where a judgment debt remains unsatisfied, if the 
 execution debtor could maintain against the intended garnishee an action 
 to recover the debt, which the execution creditor seeks to attach, an 
 attachment order may be obtained under this Rule, provided the execu- 
 tion creditor could sue out a writ ofji.fa. against the execution debtor, f 
 
 Rule 3. 
 
 Service of an order that debts due or accruing to the 
 judgment debtor shall be attached, or notice thereof to the 
 garnishee, in such manner as the Court or Judge shall 
 direct, shall bind such debts in his hands. 
 
 This is Rule 3 of Order XL. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 The Rule is copied almost verbatim from section 62 of the Common. Law 
 Procedure Act, 1854.J 
 
 * See Day's Common Law Procedure Acts, 4th Edn., pp. 314, 316, 
 318. 
 
 t Sue Janet v. Jenner, L. J., 25 Ex., 319, per Bramwell B. ; and Miller 
 v. Mynn, 1 E. and E., 1875. 
 
 t See Day's Common Law Procedure Acts, 4th edn., pp. 316, 317.
 
 RULES OF COURT. 485 
 
 It seems doubtful whether notice of a prior attachment out of the Lord 
 Mayor's Court interferes with the operation of an order under this Rule ; 
 it certainly would not, when such notice is served out of the limits of the 
 City.* 
 
 Rule 4. 
 
 If the garnishee does not forthwith pay into court the 
 amount due from him to the judgment debtor, or an 
 amount equal to the judgment debt, and does not dispute 
 the debt due, or claimed to be due, from him to the judg- 
 ment debtor, or if he does not appear upon summons, then 
 the Court or Judge may order execution to issue, and it 
 may issue accordingly, without any previous writ or 
 process, to levy the amount due from such garnishee, or so 
 much thereof as may be sufficient to satisfy the judgment 
 debt. 
 
 This is Eule 4 of the XLth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The Rule is copied almost verbatim from section 63 of the Common Law 
 Procedure Act, 1854.f 
 
 Rule 5. 
 
 If the garnishee disputes his liability, the Court or 
 Judge, instead of making an order that execution shall 
 issue, may order that any issue or question necessary 
 for determining his liability be tried or determined in 
 any manner in which any issue or question in an action 
 may be tried or determined. 
 
 This is Rule 5 of the XLth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The dispute must he a substantial one (Newman v. Rook, 4 C. B., N. S. 
 434) and bondjide (Wise v. Brokenshaw, L. J., 29 Ex., 240). 
 
 This Rule is founded, to some extent, on s. 64 of the Common Law- 
 Procedure Act, 1854. 
 
 That enactment, however, provided that the judgment creditor might, in 
 the event of a dispute, proceed by a writ calling upon the garnishee to show 
 cause why there should not be execution against him for the alleged debt, 
 or for the amount due to the judgment debtor, if less than the judgment 
 
 * See Newman v. Rook, 4 C. B., N.S., 434. 
 
 t See Day's Common Law Procedure Acts, 4th edn., p. 318.
 
 486 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 debt, and for costs of suit. The proceedings upon this writ were the 
 same, mutatis mutandis, as upon a writ of revivor. 
 
 The present Rule provides* a substitute for this quasi writ of 
 revivor, in the shape of an order that an issue be tried in any manner in 
 which an issue in an action may be tried. As to these " manners " see 
 Order XXXVI., Eule 2. 
 
 Rule 6. 
 
 "Whenever in proceedings to obtain an attachment of 
 debts it is suggested by the garnishee that the debt 
 sought to be attached belongs to some third person, or 
 that any third person has a lien or charge upon it, 
 the Court or Judge may order such third person to 
 appear, and state the nature and particulars of his claim 
 upon such debt. 
 
 This is Rule 6 of the XLth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 This Rule is copied from section 29 of the Common Law Procedure Act, 
 1860. 
 
 The garnishee may have a bond fide doubt as to whether some third 
 party, and not the judgment debtor, is really entitled to the debt. The 
 present Rule enables the garnishee to resolve this doubt by a judicial 
 decision, obtained by taking out a summons, in the nature of an inter- 
 pleader summons, calling on such third person to appear before the Judge 
 and state the nature of his claim. (See next Rule.) 
 
 Rule 7. 
 
 After hearing the allegations of such third person 
 under such order, and of any other person whom by the 
 same or any subsequent order the Court or Judge may 
 order to appear, or in case of such third person not 
 appearing when ordered, the Court or Judge may order 
 execution to issue to levy the amount due from such 
 garnishee, or any issue or question to be tried or deter- 
 mined according to the preceding Rules of this order, and 
 may bar the claim of such third person, 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 
 
 * Like Order XLII., Rule 19.
 
 RULES OF COURT. 487 
 
 (if any) of such third person, and to costs, as the Court or 
 Judge shall think just and reasonable. 
 
 This is Rule 7 of Order XL. of the Rules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Rule is copied from the 30th section of the Common Law Procedure 
 Act, I860.* 
 
 This Rule provides for a summary adjudication by the Judge upon the 
 claims of a third party to liens and charges upon debts sought to be 
 attached by the execution creditor, and gives a power of barring such 
 claims, i. e., claims to such liens and charges, as between such third person 
 and the garnishee, but not of barring a debt claimed by such third person 
 against the execution debtor, f 
 
 Rule 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. 
 
 This is Rule 8 of the XLth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The Rule is copied verbatim from the 65th section of the Common Law 
 Procedure Act, 1854. 
 
 See a form of plea of payment to a judgment creditor of the plaintiff under 
 an order of attachment of debt in Bullen and Leake's " Precedents," 3rd 
 edn., p. 494, and in Lockwood v. Nash, 18 C. B. 536. 
 
 Mule 9. 
 
 There shall be kept by the proper officer a debt attach- 
 ment book, and in such book entries shall be made of the 
 attachment and proceedings thereon, with names, dates, 
 and statements of the amount recovered, and otherwise; 
 and copies of any entries made therein may be taken 
 by any person upon application to the proper officer. 
 
 This is Rule 9 of the XLth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The Rule is founded on section 66 of the Common Law Procedure Act, 
 1854, which, however, provides for the keeping of three debt attachment 
 books at the offices of the Masters of Q. B., C. P. & Ex. (See Notanda.) 
 
 Section 92 of the Principal Act would provide ior the transfer to the 
 Supreme Court of these three debt attachment books. 
 
 * For an instance of the application of this section, see Mitchell v. Lee, 
 L. R. 2 Q. B., 259. 
 f Day's Common Law Procedure Acts, p. 371.
 
 488 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 10. 
 
 The costs of any application for an attachment of 
 debts, and of any proceedings arising from or incidental 
 to such application, shall be in the discretion of the Court 
 or a Judge. 
 
 This is Rule 10 of theXLth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 The Rule is copied verbatim from the 67th section of the Common Law 
 Procedure Act, 18-54.* 
 
 ORDER XLYI. 
 
 CHARGING OF STOCK OR SHARES AND DISTRIXGAS. 
 
 Rule 1. 
 
 An order charging stock or shares may he made by 
 any Divisional Court, or by any Judge, and the proceed- 
 ings for obtaining such order shall be such as are directed, 
 and the effect shall be such as is provided by 1 & 2 Viet., 
 c. 110, sees. 14 and 15, and 3 & 4 Viet., c. 82, sec. ]. 
 
 This is Rule 1 of the XLIst Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 A Chancery Judge will have jurisdiction to enforce a Common Law 
 judgment under this Rule. He had none before.f 
 
 The 14th section of the 1 and 2 Viet, provided as follows : " If 
 any person against whom any judgment shall have heen entered 
 up in any of Her Majesty's superior courts at Westminster shall have any 
 government stock, funds, or annuities, or any stock or shares of or in any 
 public company in England (whether incorporated or not), standing in hi's 
 name in his own right, or in the name of any person in trust for him, it 
 shall be lawful for a Judge of one of the Superior Courts, on the application 
 of any judgment creditor, to order that such stock, funds, annuities, or 
 shares, or such of them or such part thereof respectively as he shoU 
 think fit, shall stand charged with the payment of the amount for which 
 judgment shall have been so recovered, and interest thereon, and such 
 order shall entitle the judgment creditor to all such remedies as he would 
 have been entitled to if such charge had been made in his favour by the 
 judgment debtor ; provided that no proceedings shall be taken to have the 
 benefit of such charge until after the expiration of six calendar months 
 from the date of such order." 
 
 S. 15 provides as follows : " Every order of a judge charging any 
 government stock, funds, or annuities, or any stock or shares in any 
 public company, under this Act, shall be made in the first instance ex parte, 
 
 * See Wintle v. Williams, 3 H. & N. 288. 
 
 t Miles v. Pressland, 4 My. & C. ; 431. See also Cragg v. Taylor, L. 
 R., 1 Ex., 148.
 
 RULES OF COURT. 489 
 
 and without any notice to the judgment debtor, and shall be an order 
 to show cause only ; and such order, if any government stock, funds, or 
 annuities standing in the name of the judgment debtor in his own right, 
 or in the name of any person in trust for him, is to be affected by such 
 order, shall restrain the Governor and Company of the Bank of England 
 from, permitting a transfer of such stock in the meantime and until such 
 order shall be made absolute or discharged ; and if any stock or shares of 
 or in any public company, standing in the name of the judgment debtor 
 in his own right, or in the name of any person in trust for him, is or are 
 to be affected by any such order, shall in like manner restrain such public 
 company from permitting a transfer thereof; and that if, after notice of 
 such order to the person or persons to be restrained thereby, or in case of 
 corporations to any authorised agent of such corporation, and before the 
 same order shall be discharged or made absolute, such corporation or 
 person or persons shall permit any such transfer to be made, then and in 
 such case the corporation or person or persons so permitting such transfer 
 shall be liable to the judgment creditor for the value or amount of the 
 property so charged and so transferred, or such part thereof as may be 
 sufficient to satisfy his judgment ; and that no disposition of the judg- 
 ment debtor in the meantime shall be valid or effectual as against the 
 judgment creditor ; and further, that unless the judgment debtor shall 
 within a time to be mentioned in such order show to a judge of one of 
 the said superior courts sufficient cause to the contrary, the said order 
 shall, after proof of notice thereof to the judgment debtor, his attorney 
 or agent, be made absolute ; provided that any such judge shall, upon the 
 application of the judgment debtor, or any person interested, have full 
 power to discharge any such order and to award such costs upon such 
 application as he may think fit."* 
 
 S. 1 of the 3 and 4 Viet., c. 82, declared that reversionary interest*, 
 as well as interests in possession, and the annual produce, as well as the 
 principal, should be chargeable under the 1 and 2 Viet., c. 110, that funds 
 standing in the name of the Accountant- General should be chargeable, 
 as if standing in the name of a trustee for the judgment debtor ; but 
 that the judge's order should not prevent the Bank of England from per- 
 mitting a transfer of such last-mentioned funds as the Court of Chancery 
 might direct. 
 
 Rule 2. 
 
 Any person claiming to be interested in any stock 
 transferable at the Bank of England standing in the name 
 of any other person may sue out a writ of distringas pur- 
 suant to the statute 5 Viet., 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. 
 
 This is Rule 2 of the XLIst Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 * An appeal lies to the Court, after the order has been made absolute : 
 Fowler v. Churchill, 2 Dowl., N. S., 562.
 
 490 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 " C. 8 " is an erratum. It should be " c. 5." 
 
 The 5 Viet. c. 5, provides as follows : 
 
 " It shall be lawful for the Court of Chancery, upon the application of 
 any party interested, by motion or petition, in a summary way 
 without bill filed, to restrain the governor and company of the Bank ot 
 England, or any other public company, whether incorporated or not, from 
 permitting the transfer of any stock in the public funds, or any stock or 
 shares in any public company which may be standing in the name or 
 names of any person or persons, or body politic or corporate, in the books 
 of ,the governor and company of the Bank of England, or in the books of 
 any such public company, or from paying any dividend or dividends due 
 or to become due thereon ; and every order of the Court of Chancery upon 
 such motion or petition as aforesaid, shall specify the amount of the stock 
 or particular shares to be affected thereby, and the name or names of the 
 person or persons, body politic or corporate, in which the same shall be 
 standing : provided always, that the Court of Chancery shall have full 
 power, upon the application of any party interested, to discharge or vary 
 such order, and to award such costs upon such application as to the said 
 Court shall seem fit. A writ of distrmgas, in the form set out in the first 
 Schedule to this Act, shall be issuable from the Court of Chancery, and 
 shall be sealed at the subpcena office." 
 
 The form contained in the first Schedule is as follows : 
 
 " Victoria, by the grace of God of the United Kingdom of Great 
 Britain and Ireland Queen, Defender of the Faith, to the sheriffs of 
 London, greeting : We command you that you omit not, by reason of any 
 liberty, but that you enter the same and distrain the governor and com- 
 pany of the Bank of England by all their lands and chattels in your 
 bailiwick, so that they or any of them do not intermeddle therewith until 
 we otherwise command you ; and that you answer us the issues of the 
 said lands, so that they do appear before us in our High Court of Chancery 
 on the day of , to answer a certain Bill of Com- 
 
 plaint lately exhibited against them and other defendants before us in our 
 said Court of Chancery by complainant ; and further to 
 
 do and receive what our said Court shall then and there order in the 
 premises. Witness ourself at Westminster, the day of 
 
 in the year of our reign. 
 
 " DEVON." 
 
 The practice is prescribed by Order XXVII. of the Consolidated Orders 
 of the Court of Chancery.* 
 
 ORDEE XLYII. 
 
 WRIT OF SEQUESTRATION. 
 
 Where any person is by any judgment directed to pay 
 money into Court, or to do any other act in a limited time, 
 and after due service of such judgment refuses or neglects 
 to obey the same according to the exigency thereof, the 
 person prosecuting such judgment shall, at the expiration 
 
 * See Morgan and Chute's Chancery Acts and Orders, pp. 508-510.
 
 RULES OF COURT. 491 
 
 of the time limited for the performance 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 sequestration shall have 
 the same effect as a writ of sequestration in Chancery has 
 heretofore had, and the proceeds of such sequestration 
 may be dealt with in the same manner as the proceeds of 
 writs of sequestration have heretofore been dealt with by 
 the Court of Chancery. 
 
 As to the rise and progress of sequestration, see North's Life of Lord 
 Guildford, vol. II., p. 73. As to the struggles of the Common Law Courts 
 against sequestration, see Hinde, 128, Gilbert, For. Rom. 78, 3 Swanston, 
 279 n. 
 
 This Order is Order XL VI. of the Eules of Court, drawn up in 1874, 
 under the Principal Act. 
 
 This Order is a step towards fusing law and equity. It is taken from 
 the 3rd Rule of the Chancery Order of the 7th January, 1870, which 
 repeals (Rule 2) the Consolidated Order XXIX. 
 
 See a form of the writ of sequestration in Appendix (F), No. 10, which, 
 from the words " Know ye " to the end, is an exact copy of the form hitherto 
 in use in Chancery. 
 
 See also, as to this writ, Order XLII., Rules 2, 4 and 6. 
 
 The commissioners, of whom there are usually four, need not be pro- 
 fessional persons, but care should be taken that they are persons able and 
 willing to account for what comes into their hands ; they are nominated 
 "by the party on whose behalf the writ is issued, and are allowed some- 
 times a poundage, sometimes a lump sum. 
 
 There are writs of sequestration on mesne process (to enforce appearance, 
 &c.), and writs of sequestration on final process, to enforce decrees and 
 orders. It is to the latter only that this Rule relates. 
 
 Originally the writ of sequestration was merely used as a means of 
 coercing the defendant by keeping him out of possession of his property. 
 The practice of applying the money received by the sequestration in satis- 
 faction of the sum decreed to be paid is of comparatively modern origin. 
 See Wharam v. Broughton, 1 Ves. Sen. 182. This, however, had become 
 the usual method of proceeding in Chancery.* The decree or order served 
 upon the defendant had an indorsement warning him that if he did not 
 obey it within the time limited he would be liable to have his property 
 sequestered, t 
 
 "Pay money into Court." By Order XLII., Rule 2, it is expressly 
 provided that " a judgment for the payment of money into Court may be 
 enforced by writ of sequestration." 
 
 " The proceeds may be dealt with, &c." The sequestra/tors, under the 
 Chancery process, must not remove anything from the premises without the 
 
 * Daniers Chancery Practice, p. 892. 
 
 t Order XXIII., 10, as varied by the Order of the 7th January, 1870.
 
 492 SUPREME COURT OF JUDICATURE ACT, 1875- 
 
 special leave of the Court : * if they do, they will be liable to an attachment-t 
 If a sale is wanted, an application for permission to sell must be made by 
 summons or motion, and usually upon notice. J The Court will order 
 the sale of goods, but not of terms of years, or any other property the 
 title to which passes otherwise than by delivery, as the sequestrators 
 can give no warranty of title. || 
 
 The sequestrators should serve the tenants in possession with a notice 
 to attorn and pay their rents to th.em.1T The Court will, upon motion 
 with notice, give the sequestrators power to let the land.** They are bound 
 to make returns from time to time to the Court of what comes into their 
 hands,tt and they may be ordered, on motion with notice, to pass their 
 accounts and pay over their balances.JJ The persons desirous of having 
 the proceeds of the sequestration applied under the decree or order must 
 move the Court for that purpose : the sequestrators ought not so to apply 
 the proceeds of their own authority. $$ 
 
 The person whose property is sequestered can, on clearing his 
 contempt, obtain an order or summons to dissolve the sequestration. |||| 
 
 ORDER XLYIII. 
 
 WRIT OF POSSESSION. 
 
 Rule 1. 
 
 A judgment that a party do recover possession of any 
 land may be enforced by writ of possession in manner 
 heretofore used in actions of ejectment in the Superior 
 Courts of Common Law. 
 
 This is Rule 1 of the XLIIIrd Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 See a form of this writ (called a writ of ha. fa. or of hob. fac. pots.] 
 Appendix (F), No. 7. It is copied verbatim from the word " therefore" to the 
 end from the form given in the Schedule to Reg. Gen. Hil. T., 1853, 
 No. 23. By Order XLIL, Rule 3, " a judgment for the recovery of land 
 may be enforced by writ of possession." 
 
 This is the only form of writ in Appendix (F) to this Schedule which 
 contains the non omittas clause peculiar to writs issuing out of the 
 Exchequer. 
 
 This Rule does not affect s. 187 of the Common Law Procedure Act, 
 1852, which is therefore still law. 
 
 If there be several tenements in the possession of several tenants, the 
 sheriff must deliver possession of each separately ; but if there be several 
 tenements in the possession of one tenant, possession may be given of one 
 
 * Lord Pelham v. Duchess of Newcastle, 3 Swanst. 290 n. 
 
 t Hales v. Shaftoe, 1 Ves. Jun. 86. $ Mitchell v. Draper, 9 Ves. 208. 
 
 Wharam v. Broughton, 1 Ves. Sen. 180. 
 
 \\Sutton v. Stone, 1 Dick. 187. IT See Shawv. Wright, 3 Yes. 22, 24. 
 
 ** Neale v. Sealing, 3 Swanst. 304. ft Desbrow v. Crommie, Bainb. 272. 
 
 tJ Hinde, 138. 1 NewL, 689. 
 
 (HI See Rawlinson v. Stringer, Reg. Lib. B. 2,507.
 
 RULES OF COURT. 493 
 
 in the name of the whole. In order to save the expense of executing 
 this writ, the tenants may attorn to the plaintiff.* 
 
 This Rule and Order XLII., Rule 3, do not provide for the case of a 
 judgment in ejectment for the defendant. It is apprehended that the 
 183rd section of the Common Law Procedure Act, 18J2, as to the issuing 
 of execution for the defendant's costs in such a case is still, therefore, 
 applicable. 
 
 Rule 2. 
 
 Where by any judgment any person 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 sue out 
 a writ of possession on filing an affidavit showing due 
 service of such judgment, and that the same has not been 
 obeyed. 
 
 This is Rule 2 of the XLVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 The former practice is laid down hv the 182nd, 183rd and 2 loth sections 
 of the Common Law Procedure Act, 1852. 
 
 " Without any order." None was necessary under' the old practice. 
 
 " Filing an affidavit." This was not requisite under t?ie old practice. 
 Order XLIL, Rule 15, empowers the party to whom money is payable 
 under a judgment to issue immediate execution ; this Rule would appear to 
 give a similar power to issue immediate execution, the only difference heing 
 that an affidavit is not necessary under Order XLII. , Rule 15, but under 
 this Rule it is. 
 
 ORDER XLIX. 
 
 WRIT OF DELIVERY. 
 
 A writ for delivery of any property other than land or 
 money may be issued and enforced in the manner hereto- 
 fore in use in actions of detinue in the Superior Courts of 
 Common Law. 
 
 This is Order XLIV. of the Rules of Court, drawn up in 1874, under the 
 Principal Act. 
 
 See forms of this writ Appendix (F), No. 8. They are copied from the 
 Schedule to the Reg. Gen. Mich. Vac., 1854, Nos. 34 and 35, leaving out 
 the non omittas clause and the allusion to the stat. 2 Viet. An asterisk 
 should be inserted in the first of the two forms after the words " our 
 said Court." See the instructions to the second of the two forms. 
 
 Order XLII., Rule 4, prescribes this writ as one of the alternative 
 methods by which the recovery of specific goods may be enforced. The 
 law on this subject will be found in section 78 of the Common Law Pro- 
 
 * Archbold's Practice, pp. 1,045, 1,046.
 
 494 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 cedure Act, 1854 : " The Court or a Judge shall have power, if they or 
 he see fit so to do, upon the application of the plaintiff in any action for 
 the detention of any chattel, to order that execution shall issue for the return 
 of the chattel detained, without giving the defendant the option of retain- 
 ing such chattel upon paying the value assessed ; and that, if the said 
 chattel cannot he found, and unless the Court or a Judge should other- 
 wise order, the sheriff shall distrain the defendant hy all his lands and 
 chattels in the said sheriff's bailiwick, till the defendant render such 
 chattel ; or at the option of the plaintiff, that he cause to be made of the 
 defendant's goods the assessed value of such chattel: provided that the 
 plaintiff shall, either by the same or a separate writ of execution, be en- 
 titled to have made of the defendant's goods the damages, costs and 
 interests in such action." 
 
 To entitle the plaintiff in detinue to a writ of delivery under this 
 section, the Jury must assess the value of the chattel. The Court may 
 review the order of the Judge under this section. The Courts of Common 
 Law are clothed by this section (which is now incorporated in this Act), 
 after judgment in an action of detinue, with the same jurisdiction to com- 
 pel the return of a chattel as the Court of Chancery.* 
 
 The jurisdiction of the Court of Chancery is fully explained in White 
 and Tudor' s Leading Cases in Equity, t The Court of Chancery will order 
 the return of specific chattels where the chattels have a pretium affectionis 
 to the owner, e.g., heir-looms, articles of curiosity or antiquity, and 
 family pictures ; also title-deeds and copies of court rolls ; | also articles 
 destitute of peculiar value, in the case where a fiduciary relationship 
 exists between the parties. 
 
 The Common Law Judges will now be able to enforce the delivery up 
 of specific chattels by attachment and sequestration, as well as by this writ 
 (Order XLII., Rule 4). 
 
 ORDER L. 
 
 CHANGE OF PARTIES BY DEATH, &C. 
 
 Rule 1. 
 
 An action shall not become abated by reason of the 
 marriage, death, or bankruptcy of any of the parties, if the 
 cause of action survive or continue, and shall not become 
 defective by the assignment, creation or devolution of any 
 estate or title pendente lite. 
 
 This Rule is a re-enactment of Rule 17 of the Principal Act. 
 By the 135th section of the Common Law Procedure Act, 1852, it is 
 enacted that the death of a plaintiff or defendant shall not cause the action 
 
 * See also, as to enforcing the specific delivery of goods contracted to 
 be sold, the Mercantile Law Amendment Act, 1856, B. 2. 
 
 f Pusey v. Pusey, 1 White & Tudor, 820. In one case a club tobacco box 
 was ordered to be delivered up by an ex- officer of the club, Fells v. Read. 
 3 Ves., 79. 
 
 J Brown v. Brown, 1 Dick., 62. 
 
 Wood v. Bowcli/e, 3 Hare, 304.
 
 RULES OF COURT. 495 
 
 to abate, but it may be continued as thereinafter " mentioned." It has 
 been held that this enactment only applies where the cause of action 
 would before it have survived to the legal representative, and he could have 
 commenced an action in his representative character. (Flinn v. Perkins, 
 L.J. 32 Q.B. 10, B. C., Crompton, J.) 
 
 By s. 141 of the Common Law Procedure Act, 1852, "the marriage of a 
 woman plaintiff or defendant shall not cause the action to abate, but the 
 action may, notwithstanding, be proceeded with to judgment." 
 
 S. 142 of the Common Law Procedure Act provides in effect that, 
 if the assignees (now trustee) in bankruptcy are (is) willing to continue 
 the action, the bankruptcy of the plaintiff pendent e lite shall not cause the 
 action to abate. 
 
 In Chancery, oddly enough, there were no similar enactments, and on 
 the death or bankruptcy of the plaintiff or defendant, or the marriage of the 
 plaintiff or defendant if a female, the suit abated. If, however, there 
 were several plaintiffs or several defendants, and the whole interest of 
 the party dying survived to the co-plaintiffs or co-defendants, as in the 
 case of joint tenants suing or being sued and one dying, the suit did not 
 abate, but might have been continued by or against the survivor, without 
 revivor.* A suit in equity might also become defective by the assignment 
 or creation of an estate or title pendente lite, or by its devolution on e.g. a 
 new-born child. 
 
 The method of curing the defect or abatement was formerly by bill of 
 revivor, but latterly by an order of course, obtained on exhibiting 
 counsel's brief, under the provisions of section 52 of the Chancery Amend- 
 ment Act. 
 
 At Common Law abatement by death was cured by a suggestion of the 
 death upon the record, after which the proceedings were continued by or 
 against the legal representative of the party deceased. If the cause of action 
 survived to the surviving plaintiff or plaintiffs, or against the surviving 
 defendant or defendants, no leave was necessary, f and either party might 
 make the suggestion ; but in the case of the death of a sole plaintiff \ or sole 
 surviving plaintiff, the leave of the Court or of a Judge had to be obtained 
 by his legal representative before entering the suggestion. If the sole 
 defendant died, it was the plaintiffs turn to make the suggestion, and he 
 had to serve it on the legal representative of the deceased defendant, who 
 then appeared and pleaded to the suggestion, or suffered judgment for 
 default of appearance. If he appeared, the pleadings in the action and 
 upon the suggestion were tried together. J 
 
 If a female plaintiff married pendente lite, execution might be issued by 
 the authority of the husband, without any suggestion or writ of revivor : 
 if a female defendant married pendente lite, execution might be issued 
 against her alone, or by suggestion or writ of revivor, against her and 
 her husband. 
 
 To enable the assignees of a bankrupt to continue an action commenced 
 by him bef >re becoming bankrupt, it was necessary for the assignees to 
 obtain a Judge's order for the purpose, and to give security for costs. || 
 
 * Fallowes v. Williamson, 11 Ves., 306, 309; Boddy v. Kent, 1 Mer., 
 361, 364. 
 
 t Common Law Procedure Act, 1852, s. 136. 
 
 I Ib., s. 138. 
 
 Ib., s. 141. || Ib., s. 142.
 
 496 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 The Legislature, while adopting the Common Law rule that an action 
 shall not abate by reason of the death, marriage, or bankruptcy of any of 
 the parties, if the cause of action survive, has, at the same time, adopted 
 the simple form of procedure for substituting for the deceased or the 
 bankrupt, the legal representative or assignees respectively, or for adding 
 the husband, as the case may be, provided by s. 52 of the Chancery 
 Amendment Act, 1852. 
 
 Eule 2. 
 
 In case of the marriage, death, or bankruptcy, or devo- 
 lution of estate by operation of law, of any party to an 
 action, the Court or a Judge may, if it be deemed necessary 
 for the complete settlement of all the questions involved in 
 the action, order that the husband, personal representative, 
 trustee, or other successor in interest, if any, of such party 
 be made a party to the action, or be served with notice 
 thereof in such manner and form as hereinafter prescribed, 
 and on such terms as the Court or Judge shall think just, 
 and shall make such order for the disposal of the action as 
 may be just. 
 
 This Eule is a re-enactment of the second part of Rule 17 of the Prin- 
 cipal Act, " as hereinafter prescribed " being substituted for " as may be 
 prescribed by Rules of Court," in order to adapt the Rule to the present 
 Act. 
 
 " If it be deemed necessary." As the action is no longer to abate, as it 
 formerly did in equity, it might be presumed that the action would pro- 
 ceed as if the death, marriage, or bankruptcy, &c., had never occurred. 
 It may, however, be necessary for the Court or Judge to bring the suc- 
 cessors in interest before them or him, and, in such case, the present Rule 
 will become applicable. 
 
 " As hereinafter prescribed," i.e., by Rule 5 of this Order. 
 
 Rule 3. 
 
 In case of an assignment, creation, or devolution of any 
 estate or title pendente lite, the action may be continued by 
 or against the person to or upon whom such estate or title 
 has come or devolved. 
 
 This Rule is a re-enactment of the third part of Rule 17 of the Prin- 
 cipal Act. 
 
 See Rule 1 of this Order, supra. 
 
 S. 52 of the Chancery Amendment Act, 1852, applied to such a 
 " devolution " as this Rule mentions.
 
 RULES OF COURT. 497 
 
 Rule 4. 
 
 Where by reason of marriage, death, or bankruptcy, 
 or any other event, occurring after the commencement of 
 an action, and causing a change or transmission of interest 
 or liability, or by reason of any person interested coming 
 into existence after the commencement of the action, 
 it becomes necessary or desirable that any person not 
 already a party to the action should be made a party there to, 
 or that any person already a party thereto should be made 
 a party thereto in another capacity, an order that the 
 proceedings in the action shall be carried on between 
 the continuing parties to the action, and such new party 
 or parties, may be obtained ex parte on application to 
 the Court or a Judge, upon an allegation of such change 
 or transmission of interest or liability, or of such person 
 interested having come into existence. 
 
 This is Rule 1 of the XLVth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 There seems, at first sight, to be some tautology between this Rule and 
 Rule 2 of this Order, supra, but it will be seen, on closer examination, 
 that Rule 2 gives the Court or a Judge power, mero motu, to make an 
 order ; the present Rule gives the Court or a Judge power to make an 
 order only on an application ex parte. This really seems to be the only 
 difference, except that under Rule 2 service is in the discretion of the 
 Judge. Under this Rule it is compulsory, unless the Court or Judge 
 otherwise direct. The 2nd Rule is new ; this Rule is modelled on the 52nd 
 section of the Chancery Amendment Act, 1852. 
 
 Rule 5. 
 
 An order so obtained shall, unless the Court or Judge 
 shall otherwise direct, be served upon the continuing party 
 or parties to the action, or their solicitors, and also upon 
 each such new party, unless the person making the appli- 
 cation be himself the only new party, and the order shall, 
 from the time of such service, subject nevertheless to the 
 next two following Rules, be binding on the persons served 
 therewith ; and every person served therewith, who is not 
 already a party to the action, shall be bound to enter an 
 32
 
 498 SUPREME COURT OF JUDICATURE ACT, 1875- 
 
 appearance thereto within the same time and in the same 
 manner as if he had been served with a writ of summons. 
 
 This is Hule of the XLVth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 This Rule is taken from s. 52 of the Chancery Amendment Act, 1852. 
 
 The words " unless the Court or a Judge shall otherwise direct," confer 
 a power to dispense with service which that enactment withheld. 
 
 MuleQ. 
 
 . 
 
 Where any person who is under no disability, or under 
 no disability other than coverture, or being under any 
 disability other than coverture, but having a guardian 
 ad litem in the action, shall be served with such order, 
 such person may apply to the Court or a Judge to dis- 
 charge or vary such order at any time within 12 days from 
 the service thereof. 
 
 This is Rule 3 of the XLVth Order of the Rules of Court, drawn up 
 in 1874, Tinder the Principal Act. 
 
 This Rule is taken from Order XXXII., Rule 1, of the Consolidated 
 Orders of the Court of Chancery. 
 
 Rule 7. 
 
 Where any person being under any disability other 
 than coverture, and not having had a guardian ad litem 
 appointed in the action, is served with any such order, 
 such person may apply to the Court or a Judge to dis- 
 charge or vary such order at any time within 12 days from 
 the appointment of a guardian or guardians ad litem for 
 siich party; and until such period of 12 days shall have 
 expired, such order shall have no force or effect as against 
 such last-mentioned person. 
 
 This is Rule 4 of the XLVth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 This Rule is copied almost verbatim from Order XXXII., Rule 1, of the 
 Consolidated Orders of the Court of Chancery.
 
 RULES OF COURT. 499 
 
 ORDER LI. 
 
 TRANSFERS AND CONSOLIDATION. 
 
 Rule 1. 
 
 Any action or actions may be transferred from one 
 Division to another of the High Court, or from one Judge 
 to another of the Chancery Division, by an order of the 
 Lord Chancellor, provided that no transfer shall be made 
 from or to any Division without the consent of the Presi- 
 dent of the Division. 
 
 See s. 36, and also Eule 41 of the Schedule to the Principal Act, and also 
 s. 11 of this Act. 
 
 The present Rule is Rule 1 of the XLVIth Order of the Rules of Court, 
 drawn up in 1874, under the Principal Act. 
 
 Under the former Chancery practice an order for the transfer of the cause 
 from one branch of the Court to another was made, whenever there was a 
 probability of convenience from doing so.* 
 
 The Order was made upon motion with notice, t but the consent of the 
 Judge from whom and to whom the cause was to be transferred, and the 
 leave of the Lord Chancellor, or of the Lords Justices,^ to give notice of the 
 motion, must have been first obtained. The consent and leave were 
 usually given as a matter of course, on the ex parte application of counsel. 
 "When leave was given, the motion was placed in the Court paper for the day 
 appointed for the hearing. The order of transfer, when passed and entered, 
 was left with the Record and Writ Clerk for entry in his cause-book. A 
 party who, on insufficient grounds, refused to consent to the transfer, 
 might have been ordered to pay the costs of the application. || 
 
 The Lord Chancellor or the Lords Justices had power to order the re- 
 transfer of transferred causes. IT 
 
 Leave, it will be seen, can only be obtained in future from the Lord 
 Chancellor ; the Lords Justices are removed to the Court of Appeal by s. 4, 
 supra. 
 
 The power of the Lord Chancellor to order the transfer of a cause from 
 one Common Law Division to another is, of course, entirely new. 
 As, under the old practice, the consent of the Chancery Judges from whom 
 and to whom the cause was to be transferred, was necessary, so in future 
 the consent of the Presidents of the Divisions from which and to which an 
 action is to-be transferred by order of the Lord Chancellor, will be necessary. 
 Actions can be transferred, however, from one Division of the Supreme 
 Court to another Division of it without the assent of the Lord Chancellor 
 under Rule 2 of this Order ; but it would seem that a transfer of an 
 
 * Curlew-is v. Whidborne, 10 W.R. 261,L. J. J. 
 
 t Bond V. Barnes, 2 De G. F. and J. 387. 
 
 J "The cause, unless removed by some special order of the Lord Chan- 
 cellor and Lords Justices, shall be attached to the Court of the M.R.or of one 
 of the Vice-Chancellors " ; Order VI., Rule 1, of the Consolidated Orders. 
 
 Brailhwaite's Pr. 566. 
 
 || Cocq v. Hitnasgeria Coffee Co., L. R. 4, Ch.415. 
 
 IT Seton, 1269 ; Sidebottom v. Sidebottom, 7 W, R. 104, L. C.
 
 500 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 action from ono Judge of the Chancery Division to another Judge of 
 that Division can only be effected by an order of the Lord Chancellor. 
 Nothing is said of the consent in this case of the Judges to whom and 
 from whom the action is transferred ; but it may be assumed that this will 
 atill be necessary. 
 
 Rule 2. 
 
 Any action may, at any stage, be transferred from 
 one Division to another by an order made by the Court or 
 any Judge of the Division to which the action is assigned : 
 Provided that no such transfer shall be made without the 
 consent of the President of the Division to which the 
 action is proposed to be transferred. 
 
 See Rule 41 of the Principal Act. 
 
 The present Rule is Rule 2 of the XLVIth Order of the Rules of Court, 
 drawn up, in 1874, under the Principal Act. 
 
 Section 11 of this Act gives an option to the plaintiff as to the Court 
 in which he is to sue. If he exercises this option wrongly, e.g., if he as- 
 signs to one Division of the Court an action over the subject-matter of 
 which another Division has exclusive cognisance a suit for speciflc per- 
 formance, for instance, to the Court of Queen's Bench the Court or any 
 Judge of the Division to which the action has been so wrongly assigned, 
 may, by the express provisions of subsection (2) of section 11, on a summary 
 application at any stage of the cause or matter, direct the action to be 
 transferred to the Division to which it ought to have been assigned. 
 
 Proceedings in the wrong Division prior to the transfer are, however, 
 declared to be as valid as if they had been taken in the proper one. The 
 Court or Judge of the wrong Division may, moreover, set matters right by 
 expressly retaining the action in that Division." 
 
 Under Rule 1 of this Order the consent of the President of the Division 
 from which the action is transferred is required, as well as the consent of 
 the President of the Division to which the action is transferred. Under 
 the present Rule a puisne Judge may order the action to be transferred 
 without consulting his chief. 
 
 Rule 3. 
 
 Any action transferred to the Chancery Division or 
 the Probate Division shall, by the order directing the 
 transfer, be directed to be assigned to one of the Judges 
 of such Division to be named in the order. 
 
 This Rule is Rule Z of the XLVIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 This Rule i$ in accordance with the previous practice of the Court of 
 
 * This is also provided for by p. 36 of the Principal Act.
 
 RULES OF COURT. 501 
 
 Chancery, and also with the provisions of s. 42 of the Principal Act, that 
 " all business arising in the Chancery Division shall be transacted and 
 disposed of in the first instance by one judge only." 
 
 Rule 4. 
 
 Actions in any Division or Divisions may be consoli- 
 dated by order of the Court or a Judge in the manner 
 heretofore in use in the Superior Courts of Common Law. 
 
 This is Rule 4 of the XL Vlth Order of the Rules of Court, drawn up, 
 in 1874, under the Principal Act. 
 
 When several actions are brought by the same plaintiff against several 
 defendants, and the questions in dispute and the evidence to be adduced are 
 the same in all, the plaintiff will be put to his election as to which action 
 he will proceed with, and proceedings in the rest will be stayed on the 
 defendants in the other actions submitting to be bound by the verdict in 
 the one to be tried. The practice of thus " consolidating " actions is said to 
 have been originally introduced by Lord Mansfield, C.J.,in actions against 
 underwriters.* 
 
 Actions will not be consolidated where there are several plaintiffs and 
 one defendant, t 
 
 The plaintiff will not be prevented by an adverse verdict in the case 
 that is tried from proceeding with any of the other actions, J even although 
 the costs in the first are unpaid. Where the same solicitor is retained 
 by all the defendants, they are jointly liable to contribute to the pay- 
 ment of the plaintiff's costs. || 
 
 A practice somewhat similar to that of the Common Law Courts was 
 sanctioned by the Court of Chancery. Where two suits for the same 
 object were instituted in different branches of that Court, an application was 
 generally entertained to stay proceedings in one. If it was desirable to 
 amalgamate the two suits, the Court would do so on conditions.lF A de- 
 fendant in Eqaity may plead that there is another suit depending in that 
 or in another Court of Equity for the same matter.** 
 
 ORDER LIL 
 
 INTERLOCUTORY ORDERS AS TO MANDAMUS INJUNCTIONSft 
 OR INTERIM PRESERVATION OF PROPERTY, &C. 
 
 Rule 1. 
 When by any contract a primd facie case of liability is 
 
 * Tidd 614, Oth edn. t Nichols v. Lefevre, 3 D.P.C., 135. Westbrook 
 V.Australian Steam Navigation Company, 14 C.B., 113. % McGregor v. 
 Horsfall, 3 M. & W., 320. 
 
 $ Doyle v. Douglas, 4 B. & Ad., 544. 
 
 || Anderson v. lioynton, 13 Q.B., 308. 
 
 IT See Morgan and Chute's Chancery Acts and Orders, p. 393. 
 
 ** Mitford on Pleading, 246. 
 
 ft See the note at p. 59, as to the extraordinary title to this Order.
 
 502 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 established, and there is alleged as matter of defence a right 
 to be relieved wholly or partially from such liability, the 
 Court or a Judge may make an order for the preservation 
 or interim custody of the subject-matter of the litigation, 
 or may order that the amount in dispute be brought into 
 Court or otherwise secured. 
 
 This Rule is a re-enactment of Rule 43 of the Principal Act. 
 
 This Rule must be read with Rule 1, infra. 
 
 Rule 3 seems to include any case which could fall under this Rule,* 
 although, oddly enough, an affidavit may be required under this Rule and 
 not under Rule 3. (See Rule 5.) 
 
 The existing law as to the subject-matter of this Rule will be found 
 stated under Rule 3. 
 
 Rule 2. 
 
 It shall be lawful for the Court or a Judge, on the ap- 
 plication of any party to any action, to make any order for 
 the sale, by any person or persons named in such order, 
 and in such manner, and on such terms as to the Court or 
 Judge may seem desirable, of any goods, wares, or 
 merchandise which may be of a perishable nature or likely 
 to injure from keeping, or which for any other just and 
 sufficient reason it may be desirable to have sold at once. 
 
 This Rule is a re-enactment of Rule 44 of the Principal Act. 
 The Rule appears to be new. (But see Notanda.) 
 
 Rule 3. 
 
 It shall be lawful for the Court or a Judge, upon the 
 application of any party to an action, and upon such terms 
 as may seem just, to make any order for the DETENTION, 
 PRESERVATION, OR INSPECTION of any property, being the 
 subject of such action, and for all or any of the purposes 
 aforesaid to authorise any person or persons to enter upon 
 or into any land or building in the possession of any party 
 
 * Instances of such seemingly tautological enactments are not unfre- 
 quent in this Schedule : See Order XXVII., Rules 1 and 6 ; Order 
 XXXI., Rules 11, 12 and 14 ; Order XXXIV., Rules 1 and 2, supra.
 
 RULES OF COURT. 503 
 
 to such action, and for all or any of the purposes aforesaid 
 to authorise any samples to be taken, or any observation to 
 be made or experiment to be tried, which may seem neces- 
 sary or expedient for the purpose of obtaining full infor 
 mation or evidence. 
 
 See Rule 5 of this Order. The present Rule is a re-enactment of the 
 first portion of Rule 45 of the Principal Act. The second portion of that 
 Rule will be found, supra, under Order XXXVII., Rule 4. 
 
 This Rule is very wide and beneficial in its scope. 
 
 The application may be made by the plaintiff at any time after the 
 writ of summons has been issued ; by the defendant, or any other party, 
 at any time after appearance by him. (See next Rule.) No affidavit 
 appears to be necessary under this Rule. 
 
 " Detention." This is more fully expressed in Rule 1 of this Order 
 " the Court or a Judge may make an order for the interim custody of the 
 subject-matter of the litigation, or may order that the amount in dispute 
 be brought into Court or otherwise secured." The "interim custody" 
 would point to the nomination of a Receiver pendente lite, to secure the 
 property for the benefit of the person who shall ultimately appear to be 
 entitled to it, without affecting the right to it.* The Court of Chancery 
 extended the principle of providing for the safety of property pending 
 litigation by the appointment of a Receiver to cases where the litigation 
 was in another Court ; e.g., in the Probate Court, f the Divorce Court,!}; or a 
 foreign Court. The Probate Court (see the Probate Act, 1857, s. 71), 
 and the Divorce Court will in future, it is apprehended, appoint the 
 Receiver in these cases themselves. 
 
 One of the most ordinary methods by which the Court of Chancery 
 enforced the jurisdiction of retaining property pendente lite was by ordering 
 it to be brought into Court. The payment of money or the transfer of 
 stock into Court was most usually ordered, on interlocutory application, 
 in the case of persons filling a fiduciary position having money in their 
 hands or stock under their control to which the plaintiff could make out 
 a prima facie title.|| (See Rule 1.) 
 
 The Court of Chancery would also, wherever it might be necessary for 
 their protection, order specific chattels to be deposited in the Bank of 
 England, which has the general custody of the property of suitors.H 
 
 " Preservation." An interlocutory injunction was a mode by which the 
 Court preserved the property in dispute pendente lite, with the least injury 
 to all parties. The object of this injunction is to maintain the s^oject- 
 matter of the suit in statu quo until a decision could be had on the legal 
 
 * See Skip v. Harwood, 3 Atk., 564, per Lord Hardwicke, C. See also 
 pp. 5862. 
 
 t See Kerr on Receivers, 2026. Mitford on Pleading, 185, 136. 
 
 % Sydney v. Sydney, W. N". (1867), 248. 
 
 Transatlantic Company v. fietroni, Johns, 604. 
 
 || Dandy v.Danby, 5 Jur. N. S., 54. Whitmore v. Turquand, I J. & H., 
 296. 
 
 IT Daniel's Chancery Practice, pp. 1,627, 1,628, 1,632.
 
 504 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 right to it of the party suing.* The plaintiff must have shown at least a 
 strong primd facie case in support of the title which he asserted, f (See 
 Rule 1.) The Court would not, except under very special circumstances, 
 have granted upon an interlocutory application before decree, a mandatory 
 injunction, virtually directing the defendant to perform the act, so as to keep 
 things, until the hearing, in the state in which they were ante litem motum.^ 
 Under the present Rule and subsection (8) of s. 25 of the Principal Act, 
 mandatory injunctions will, no doubt, be more frequently applied for and 
 obtained. 
 
 " Inspection." At Common Law a rule could have been obtained, 
 directing a view to be had by a jury, whether common or special, of the 
 messuages, lands, and place in question, in actions of a local nature, such 
 as trespass qu. cl.fr., and nuisances. || No motion was necessary ; the Rule 
 being drawn up by the officer of the Court, on an affidavit, stating the 
 place, and the distance, and on the deposit of an amount sufficient to 
 cover the expenses of the view .11 
 
 Either party to an action at Common Law might also have applied to a 
 Court or a Judge for a Rule or an Order for the inspection by the jury, by 
 himself, or by his witnesses, of any real or personal property the inspection 
 of which might be material.** The proceedings were the same as on a 
 view. The removal of obstructions to inspection might have been ordered 
 as incident to it.ff 
 
 The Court of Chancery also issued orders for the inspection of real 
 property.JJ 
 
 Under the 42nd sect, of the 15 and 16 Viet., c. 83, an order for the 
 inspection of the defendant's machinery might have been made in an action 
 for infringing a patent. The Court of Exchequer in The Patent Type 
 Founding Co. v Lloyd, refused an order for the inspection and delivery, for 
 the purpose of analysis, of a portion of the type used by the defendant. 
 The order was subsequently made by the Court of Chancery. || || Such a 
 conflict of decision cannot arise n the Supreme Court. 
 
 Rule 4. 
 
 An application for an order under section 25, sub- 
 section 8, of the Act, or under Rules 2 or 3 of this 
 Order, may be made to the Court or a Judge by any 
 party. If the application be by the plaintiff for an 
 
 * Lawrence v.Austin, 11 Jur. N.S. 576, 577. 
 f Daniel's Chancery Practice, p. 1,487. 
 
 t See as to mandatory injunctions, Kerr on Inj., 230-232, 320-321> 
 833-035. 
 
 Common Law Procedure Act, 1852, s. 114. 
 
 || Stones v. Menhem, 2 Ex. 382, per Parke, B. 
 
 IT Reg. Gen. Hil. T., 1853, Rules 48 and 49. 
 
 ** Common Law Procedure Act, 1854, s. 58. 
 
 ft Bennett v. Griffiths, 3 E. and E. 467. 
 
 JJ Ednor v. Barwell, 1 De G. F. and J., 529. 
 
 5 H. and N., 192. 
 
 Hil Patent Type Founding Co. v. Walter, Johns, 727.
 
 RULES OF COURT. 505 
 
 order under the said subsection 8, it may be made 
 either ex parte or with notice, and if for an order under 
 the said Rules 2 or 3 of this Order, it may be made after 
 notice to the defendant at any time after the issue of the 
 writ of summons, and if it be by any other party, then on 
 notice to the plaintiff, and at any time after appearance 
 by the party making the application. 
 
 This is Rule 1 of the XLVIIth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act, " Rules 2 and 3 of this Order " being 
 substituted in two places for " Rules 44 and 45 of the Schedule to the 
 Act " [of 1873], so as to adapt the Rule to the present Act. 
 
 No affidavit seems to be required by this Rule. 
 
 By subsection 8 of section 25 of the Principal Act (which, by the 
 interpretation clause of this Schedule (LXIIIrd Order) is included in 
 the expression "the Act), a mandamus or an injunction may be 
 granted, or a Receiver appointed, by an interlocutory Order of the Court 
 in all cases in which it shall appear to the Court to be just or conve- 
 nient that such an Order should be made."* 
 
 Rule 5. 
 
 An application for an order under Rule 1 may be made 
 by the plaintiff at any time after his right thereto ap- 
 pears from the pleadings ; or, if there be no pleadings, is 
 made to appear by affidavit or otherwise to the satisfaction 
 of the Court or a Judge. 
 
 This is Rule 2 of the XLVIIth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act, "Rule 1" being substituted for "Rule 
 43," in order to adapt the Rule to the present Act. (See note to Rule 1.) 
 
 Rule 6. 
 
 Where an action is brought to recover, or a defendant 
 in his statement of defence seeks by way of counter-claim 
 to recover specific property other than land, and the 
 party from whom such recovery is sought does not dispute 
 the title of the party seeking to recover the same, but 
 claims to retain the property, by virtue of a lien or other- 
 wise, as security for any sum of money, the Court or a 
 Judge may, at any time after such last-mentioned claim 
 
 * This enactment has already been explained at pp. 58-62.
 
 506 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 appears, from the pleadings, or, if there be no pleadings, 
 by affidavit or otherwise to the satisfaction of such Court 
 or Judge, order that the party claiming to recover the pro- 
 perty be at liberty to pay into Court, to abide the event 
 of the action, the amount of money in respect of which 
 the lien or security is claimed, and such further sum (if 
 any) for interest and costs as such Court or Judge may 
 direct, and that upon such payment into Court being made, 
 the property claimed be given up to the party claiming it. 
 
 This is Rule 3 of the XLVIIth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 This Rule appears to be) new. Under section 25 of the Common Law 
 Procedure Act, 1860, a sum of money, to the value of the goods alleged to 
 have been detained, might have been paid into Court by the defendant 
 in an action of detinue. 
 
 ORDER, LIII. 
 
 MOTIONS AND OTHER, APPLICATIONS. 
 
 Rule 1. 
 
 Where by these Rules any application is authorised to 
 be made to the Court or a Judge in an action, such appli- 
 cation, if made to a Divisional Court or to a Judge in 
 Court, shall be made by motion. 
 
 This is Rule 1 of the XLVIIIth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 By Order LVIII., Rule 18, applications to a Judge of the Court of 
 Appeal shall also be by motion. 
 
 " Whenever," says Mr. Daniel, "it becomes necessary to apply to the 
 Court for its interference in a matter arising in a cause or proceeding, the 
 application is made by motion or petition."* "There does not appear," 
 he adds, "to be any very distinct line of demarcation between the cases 
 in which an application to the Court in a pending cause or matter should 
 be made by motion and those in which it should be made by petition ; but, 
 as a general rule, where any long or intricate statement of facts is re- 
 quired, the application should be made by petition, while in other cases a 
 motion will be sufficient, "f The present Rule does not say that hence- 
 forth applications shall in no case be made by petition in the Chancery 
 Division, but only that applications under these Rules shall be made by 
 motion. 
 
 * Chancery Practice, p. 1,434. 
 
 t Citing Jones v. Roberts, 12 Sim., 189; and Lord Shipbrooke v. Lord 
 Hinchinbrooke, 13 Ves., 394.
 
 RULES OF COURT. 507 
 
 In the Common Law Courts the present Rule does not, it is apprehended, 
 introduce any change of practice. 
 
 Rule 2. 
 
 No rule or order to show cause shall be granted in any 
 action, except in the cases in which an application for such 
 rule or order is expressly authorised by these Rules. 
 
 This is Rule 2 of the XLVIIIth Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 This is a very important change in Common Law practice. The Judi- 
 cature Commission recommended* that " when the Judge at the trial has 
 reserved any question of law, he should have power to direct the cause to 
 be set down for argument hefore the Court without a rule nisi." 
 
 "In the Courts of Equity, the practice," says Dr. Stephcn,f "has 
 hitherto heen to proceed, in the first instance, to a hearing of the parties 
 on hoth sides, requiring, however, him hy whom the motion is made to 
 give notice* to his adversary of the nature and time of the intended ap- 
 plication." The present Rule is an assimilation, pro tanto, of the Common 
 Law to the Chancery practice. There were, however, " orders nisi" in 
 Equity, and there were also at Common Law rules obtained upon motion, 
 which were absolute in the first instance. The only general principle laid 
 down by Common Law text writers on the subject was, that " all rules to 
 set aside proceedings for irregularity or otherwise, were rules Mm." 
 
 Cases in which the application for a Rule or Order to show cause has 
 been "expressly authorised by these Rules" will be found in Order 
 XXXIX., Rule 1, and Order XL., Rules 4, 5 and 6. 
 
 Under Rules 1, 2, 3, 7 and 8 of Order XL., it is apprehended, there will, 
 on the other hand, be no rule or order to show cause. (See note, Order 
 XL., Rule 2.) 
 
 Rule 3. 
 
 Except where by the practice existing at the time of 
 the passing of the said Act any Order or Rule has hereto- 
 fore been made ex parte absolute in the first instance, and 
 except where by these Rules it is otherwise provided, and 
 except where the motion is for a rule to show cause only, 
 on motion shall be made without previous notice to the 
 parties affected thereby. But the Court or Judge, if 
 satisfied that the delay caused by proceeding in the ordi- 
 nary way would or might entail irreparable or serious 
 
 * First Report, p. 15. 
 
 t 3 Stephen's Comm., 7th edn., p. 628 n. (c.) 
 
 J Special ex parte motions were made without notice. 
 
 See Archbold's Practice, p. 1,578.
 
 508 SUPREME COURT OF JUDICATURE ACT, 187-5. 
 
 mischief, may make any order ex parte upon such terms 
 as to costs or otherwise, and subject to such undertaking, 
 if any, as the Court or Judge may think just ; and any 
 party affected by such order may move to set it aside. 
 
 This is Rule 3 of the XLVIIIth Order of the Kules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 Mr. Daniel says* that "it is impossible to lay down any clear rule 
 defining such [special] motions as may be made ex parte in Equity, and 
 distinguishing them from such as require notice." He gives, however, a 
 list of motions which may be made ex parte in Appendix. I., Part I., to 
 his " Chancery Practice." 
 
 As to rules absolute in the first instance, at Common Law, see the note 
 to Rule 2 of this Order, supra. A " motion of course " in Equity required 
 no notice, as no opposition was allowed to it.f A list of these motions of 
 course will be found in Daniel's " Chancery Practice," Appendix I., 
 Part II. t 
 
 Instances of rules absolute in the first instance are given by Reg. Gen. 
 Hil. T., 1853, Rule 168. 
 
 Rule 4. 
 
 Unless the Court or Judge give special leave to the 
 contrary, there must be at least two clear days between 
 the service of a notice of motion and the day named in the 
 notice for hearing the motion. 
 
 This is Rule 4 of the XLVIIIth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 By the Reg. Gen. Hil. T., 1853, Rule 160, " rules to show cause shall 
 be no stay of proceedings unless two days' notice of the motion shall have 
 been served on the opposite party, except in the cases of rules for new 
 trials, or to enter verdict, or nonsuit, motions in arrest of judgment, or for 
 judgment non obstante veredicto, to set aside award or annuity deed, or to 
 enter a suggestion, or by the special direction of the Court." The present 
 Rule sweeps away all the exceptions but the last. The Rule is copied 
 verbatim from Order XXXIII., Rule 2, of the Consolidated Orders of the 
 Court of Chancery. 
 
 Rule 5. 
 
 If, on the hearing of a motion or other application, the 
 Court or Judge shall be of opinion that any person to 
 
 * Chancery Practice, p. 1,439. 
 
 t See Eyles v. Ward, Mos., 255. 
 
 j But petitions of course to the Rolls are now substituted for motions of 
 course. See a list of such petitions, Daniel's Chancery Practice, Ap- 
 pendix II.
 
 RULES OF COURT. 509 
 
 whom notice has not been given ought to have or to have 
 had such notice, the Court or Judge may either dismiss 
 the motion or application, or adjourn the hearing thereof, 
 in order that such notice may be given upon such terms, 
 if any, as the Court or Judge may think fit to impose. 
 
 This is Eule 5 of the XLVIIIth. Order of the Exiles of Court, drawn up, 
 in 1874, under the Principal Act. 
 
 Eule 6. 
 
 The hearing of any motion or application may from 
 time to time be adjourned upon such terms, if any, as the 
 Court or Judge shall think fit. 
 
 This is Rule 6 of the XLVIIIth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 This Rule is rather ambiguously expressed. It may mean either that a 
 part heard motion or application may be adjourned, or that the making of 
 the motion or application may be postponed. The latter appears to be 
 the true meaning. In Equity counsel might, as it was termed, " save " 
 his notice of motion till the next motion or " seal" day.* If not made 
 or " saved " before the Court had disposed of the motions on the day for 
 which the notice was given, a motion was, in Equity, considered to be 
 abandoned, f The present Rule was probably framed with a view to afford- 
 ing the parties an opportunity of postponing the notice of motion by 
 arrangement. 
 
 Eule 7. 
 
 The plaintiff shall, without any special leave, be at 
 liberty to serve any notice of motion or other notice, or 
 any petition or summons upon any defendant, who, having 
 been duly served with a writ of summons to appear in the 
 action, has not appeared within the time limited for that 
 purpose. 
 
 This is Rule 7 of the XLVIIIth Order of the Rules of Court drawn up 
 in 1874 under the Principal Act. 
 
 This Rule is in accordance with the previous Chancery practice. It is 
 copied almost verbatim from Order III., Rule 8, of the Consolidated Orders 
 of the Court of Chancery. That Rule did not, however, apply where the 
 defendant was out of the jurisdiction. Green v. Pledger, 3 Hare, 165. 
 
 * De Bauwen Iron Company, 17 Jur. , 127. 
 
 t Mr Smith, 23 Bear., 284. But see Wedderburne v. Llewellyn, 18 W. 
 R., 939.
 
 510 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 8. 
 
 The plaintiff may, by leave of the Court or a Judge to 
 be obtained ex parte, serve any notice of motion upon any 
 defendant along with the writ of summons, or at anytime 
 after service of the writ of summons, and before the time 
 limited for the appearance of such defendant. 
 
 This is Rule 8 of the XLVIlIth Order of the Rules of Court, drawn up, 
 in 1874, under the Principal Act. 
 
 This is analogous to the previous Chancery practice. For " writ of 
 summons " must, however, be read " copy of the Bill." See note to 
 Order II., Rule 1 of this Schedule, pp. 277, 278. 
 
 " By leave." Where a defendant in Equity had not appeared to the Bill, 
 though duly served, and the time limited for doing so had not expired, leave 
 to serve the notice upon him must first have been obtained.* 
 
 The words " has expired" must be understood to be added at the end of 
 this Rule, in order to make sense. 
 
 ORDER LTY. 
 
 APPLICATIONS AT CHAMBERS. 
 
 Rule 1. 
 
 Every application at Chambers authorised by these rules 
 shall be made in a summary way by summons. 
 
 This is Rule 1 of the XLIXth Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 Both at Common Lawt and in Chancery^; the mode of proceeding at 
 Chambers has hitherto been by summons. 
 
 Rule 2. 
 
 In the Queen's Bench/ Common Pleas, and Exchequer 
 Divisions a Master, and in the Probate,* Divorce, 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 
 
 Daniel's Chancery Practice, pp. 1442-3. 
 
 t Lush's Practice, p. 950. There were, however, several cases in which 
 orders might be obtained upon ex parte application without summons, and 
 with or without an affidavit. See a list of them in Lush's Practice, p. 949. 
 
 J 15 and 16 Viet., c. 80, s. 28.
 
 RULES OF COURT. 511 
 
 a Judge at Chambers, except in respect of the following 
 proceedings 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 : 
 
 Discovery, whether of documents or otherwise, and 
 inspection, except by consent : 
 
 Appeals from District Eegistrars : 
 
 Interpleader, other than such matters arising in 
 interpleader as relate to practice only, except by 
 consent : 
 
 Prohibitions : 
 
 Injunctions and other orders under subsection 8 
 of section 25 of the Act, or under Order LIL, Rules 
 1, 2 and 3, respectively : 
 
 Awarding of costs, other than the costs of any pro- 
 ceeding 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. 
 
 This is Rule 2 of the XLIXth Order of the Rules of Court, drawn up in 
 1874 under the Principal Act, the words " Order LIL, Rules 1, 2 and 3 " 
 being substituted for " Rules 43, 44 and 45 of the Schedule to the Act" 
 [of 1873], so as to adapt the Rule to the present Act. 
 
 This Rule is taken from the Reg. Gen. Mich. T., 1867, with some 
 variations. It may be useful to compare the exceptions mentioned there 
 with the exceptions mentioned in this Rule. 
 
 The exceptions mentioned in Reg. Gen. Mich. T., 1867, include 
 several (italicised) which are omitted in this Rule : " All matters 
 relating to criminal proceedings ; the removal of causes from inferior 
 Courts other than the removal of judgments for the purpose of 
 having execution ; prohibitions and injunctions ; the referring of causes 
 under the Common Law Procedure Act, 1854; the rectifying of 
 omissions or mistakes in the register under the Joint Stock Companies Acts ; 
 interpleader, other than such matters arising in interpleader as relate to 
 practice only ; discovery, whether by inspection of documents, interroga- 
 tories, or otherwise; reviewing taxation of costs ; staying proceedings after
 
 512 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 verdict ; ackdowledgments of married women ; leave to sue in formd 
 pauperis ; orders for charging stock, funds, annuities, share or dividends, 
 or annual produce thereof."* 
 
 It will also he ohserved that there are several things which masters may 
 now do by content, which were formerly entirely excepted. 
 
 Rule 3. 
 
 If any matter appears to the Master proper for the de- 
 cision of a Judge the Master may refer the same to a 
 Judge, and the Judge may either dispose of the matter or 
 refer the same back to the Master with such directions as 
 he may think fit. 
 
 This is Rule 3 of the XLIXth Order of the Rules of Court, drawn up, 
 in 1874, under the Principal Act. 
 
 This Rule is copied from the Reg. Gen. Mich. T., 1867. Sea alao 
 Order XXXV., Rule 6, supra. 
 
 Rule 4. 
 
 Any person affected by any order or decision of a 
 Master, may appeal therefrom to a Judge at Chambers. 
 Such appeal shall be by summons, within four days after 
 the decision complained of, or such further time as may be 
 allowed by a Judge or Master. 
 
 This is Rule 4 of the XLIXth Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. 
 
 The first clause of this Rule is taken from " The Judges Chambers 
 Despatch of Business Act, 1867 " (30 and 31 Viet., c. 68) section 4. The 
 second clause of the Rule is copied from the Reg. Gen., Mich. T., 1867. 
 
 See also Order XXXV., Rule 7. 
 
 Rule 5. 
 
 An appeal from a Master's decision shall be no stay of 
 proceeding unless so ordered by a Judge or Master. 
 
 This is Rule 5 of the XLIXth Order of the Rules of Court, drawn up, 
 in 1874, under the Principal Act. 
 
 This Rule is copied from the Reg. Gen. Mich. T., 1867. 
 See also Order XXXV., Rule 8, supra. 
 
 * The Reg. Gen. Mich. T., 1867, were made under the authority of 
 the Judges Chambers (Despatch of Business) Act (30 and 31 Viet., 
 c. 68).
 
 RTJLES OF COURT. 513 
 
 Rule 6. 
 
 In the Queen's Bench, Common Pleas, and Exchequer 
 Division [s], every appeal to the Court from any decision 
 at chambers shall be by motion, and shall be made 
 within eight days after the decision appealed against. 
 
 This is Rule 6 of the XLIXth Order of the Eulea of Court drawn up in 
 1874 under the Principal Act. 
 
 See as to the subject-matter of this Eule sections 49 and 50 of the 
 Principal Act and the notes thereto, pp. 110-114. 
 
 The Rule is in accordance with the previous Common Law Practice, 
 except that the time within which the motion is to be made has not hitherto 
 been defined ; but the motion must have been made " within a reasonable 
 time."* 
 
 Nothing is said in this Rule about the necessity of moving on affidavits. 
 Under the old practice the application was made on an affidavit verifying 
 a copy of the Judge's order.f The same affidavits, also, upon which the 
 order was founded, might have been used on the application to set it aside. J 
 The application might also, as a general rule, have been strengthened by 
 additional affidavits. If the affidavits which were used at Chambers were 
 intended to be used upon the motion, notice was given to the Judge's 
 Clerk to produce them, and he thereupon handed them to the officer acting 
 as Clerk of the Rules ; but if he had already returned them to the Rule 
 Officer, notice was given to the Clerk of the Rules to have them in 
 Court.|| 
 
 OBDER LY. 
 
 COSTS. 
 
 Subject to the provisions of the Act, the costs of and 
 incident to all proceedings in the High Court shall be in 
 the discretion of the Court ; but nothing herein contained 
 shall deprive a trustee, mortgagee, or other person of any 
 right to costs out of a particular estate or fund to which 
 he would be entitled according to the rules hitherto acted 
 upon in Courts of Equity : Provided, that where any action 
 or issue is tried by a Jury, the costs shall follow the event, 
 
 * Chapman v. King, 4 D. and L. 311 ; Meredith v. Gittans, 19 L. T. 
 (Q. B.) 59 E. T., 1852. 
 
 t Soby v. Pritchard, 5 Dowl. 300. 
 
 % Pickford v. Ewington, 4 Dowl. 453. 
 
 Peterson v. Daris, 6 C. B., 235. 
 
 || See Ncedhamv.Bristow, 4 Sc., X. R., 733 ; 1 Dowl.N. S., 700 ; 4 M. 
 and G., 262. (The practice will probably be the same under this Act.) 
 
 33
 
 514 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 unless, upon application made at the trial, for good cause 
 shown the Judge before whom such action or issue is tried 
 or the Court shall otherwise order. 
 
 See as to costs, the " Additional Rules of Court," Order VI. 
 
 This Rule is a re-enactment of Rule 47 of the Principal Act, except 
 the proviso at the end, which is due to Sir Henry James, and who carried 
 it by way of amendment on the "report" of the Bill in the House of 
 Commons. 
 
 The Judicature Commission in their First Report* stated, " that in the 
 Court of Chancery, the Court of Admiralty, and the Courts of Probate 
 and Divorce, the Court has, at present, full power over costs. We think 
 that the absence of this power in the Courts of Common Law often 
 occasions injustice and leads to unnecessary litigation.' ' And they therefore 
 recommended " that in all the Divisions of the Supreme Court the costs of 
 the suit and of all proceedings in it should be in the discretion of the 
 Court." 
 
 The framers of the Bill of 1873 followed the recommendation of the 
 Judicature Commission, which they embodied in the 47th Rule of their 
 Schedule. 
 
 Upon this subject Mr. Daniel t has the following pertinent explanatory 
 remarks : "The giving of costs in Equity is entirelydiscretionary. It must 
 not be supposed, however, that the Court is not governed by definite prin- 
 ciples in its decisions relative to the costs of proceedings before it. All 
 that is meant by the dictum is, that the Court is not like the Common 
 Law Courts held inflexibly to the Rule of giving the costs of suit to the 
 successful party, but that it will, in dividing costs, take into considera- 
 tion the circumstances of the particular case before it and the situation 
 and conduct of the parties, and exercise its discretion with reference to 
 those points. It does not, as is frequently supposed, act upon the mere 
 caprice of the Judge before whom the cause happens to be tried." 
 
 The Common Lawyers in the House of Commons were, however, 
 alarmed at the alteration in the fundamental law of trial by Jury, which 
 the original Rule, standing out in its naked simplicity, would have in- 
 volved. The whole policy of the Legislature from the Statute of 
 Gloucester down to the 38th of the Queen, in reference to costs in trials 
 by Jury was about to be sacrificed ; accordingly, Mr. Morgan Lloyd, 
 Q.C., Mr. Lopes, Q.C., and Mr. Grantham, gave notice of their intention 
 to move the omission of the original Rule ; and Sir Henry James, Q.C., 
 took the milder course of giving notice of his intention to move to add the 
 proviso which now forms part of the Rule. In Committee on the Bill the 
 Attorney-General refused to give way, but at the last moment, on the re- 
 port, he silently assented to Sir Henry's proviso, and it was added to the 
 Rule. There can be no doubt that the change originally proposed in the 
 awarding of costs at Common Law would have been too violent. It is not 
 unworthy of notice that, as Sir Henry James originally drafted his 
 amendment, it made the principle that "costs shall follow the event" 
 
 * P. 15. 
 
 t Chapter xxxi of his " Chancery Practice," "Costs," p. 1238. 
 j Scarborough v. Burton, 2 Atk. Ill; Benet College v. Carey, 3 Bro. 
 C.C. 390.
 
 RULES OF COURT. 515 
 
 applicable to the trial of " any action or issue " by a jury. On the report 
 however, he altered his amendment into the following form : 
 
 " Provided, that where any action or issue is tried by a Jury in th 
 Queen's Bench, Common fleas, or Exchequer Division of the High Court, 
 the costs shall follow the event, unless upon special application and for 
 good cause shown, the Judge before whom such action or issue is tried or 
 the Court shall otherwise order." 
 
 The House of Lords did not like the amendment in this form, consider- 
 ing, no doubt, that the symmetry of the Bill would be spoilt if in trial 
 by jury in three of the Divisions of the High Court the costs were to 
 follow the event, and in trials by Jury in the other two Divisions, the costs 
 were to be in the discretion of the Court ; so their Lordships, when con- 
 sidering the Commons amendments, altered Sir Henry James's proviso 
 back to its original form, and in that shape it became law. 
 
 See as to the costs of action tried by Jury following the event in the 
 case of the plaintiff, 6 Edw. I. c. 1 ; in the case of the defendant, 
 23 Hen. VIII. c. 15, 4 Jac. I. c. 3, and 3 and 4 Win. IV., c. 42, s. 32 ; as 
 to the costs of issues in trials by Jury following the event, see the Common 
 Law Procedure Act, 1852, s. 81, and Eeg. Gen. Hil. T. 1853, Eule 62. 
 
 " Subject to the provisions of the Act," i.e., the 67th section of the 
 Principal Act, which makes the 5th, 7th, 8th and 10th sections of the 
 County Courts Act, 1867 (30 and 31 Viet. c. 142) applicable to "all 
 actions commenced or pending in the High Court, in which any relief is 
 sought which can be given in a County Court." The enactments referred 
 to in s. 67 of the Principal Act are set out at full length in the note to 
 that section, pp. 130-132 (which see.) The editors of the 13th edition 
 of Eoscoe's Nius Prius refer to the words, " Subject to the provisions of 
 the Act," and say that " the provision herein referred to is s. 67. It will 
 be seen that the [rule] is thus applied only to cases in which relief 
 could not be obtained in a County Court. In all cases not within s. 67, 
 the costs being in the discretion of the Court,* an order or certificate for 
 costs will be required." 
 
 " But nothing herein contained," &c. Trustees, agents, and receivers, 
 whether plaintiffs or defendants, accounting fairly, and paying their money 
 into Court, are entitled to their costs out of the estate, which is the subject of 
 the suit in Chancery, as a matter of coursef and the same rule extends to 
 personal representatives. J The Rule must be understood as applying strictly 
 between themselves and their cestuis que trustent, 
 
 In suits between them and those who are strangers to their trust, the 
 ordinary rules as to costs prevail. If the conduct of the party holding a 
 fiduciary character is obviously vexatious, he will not be allowed his costs 
 out of the estate,!| and if he is guilty of misconduct in the course of the 
 suit, the Court will compel him to pay the costs of the suit out of his own 
 pocket.lT 
 
 Where the owner of an estate proceeds to deliver it from a mortgage or 
 other incumbrance which he himself or those under whom he claims have 
 
 * This was written before the proviso was added. 
 
 t Attotney -General v. City of London, 1 Ves. Jun., 243, 246. 
 
 Rashley v. Masters, 1 Ves. Jun. 205. 
 
 Lewin on Trusts, 732. 
 
 || Cittreisv. Chandler, 6 Madd. 123. 
 
 H Sheppard v. Smith, 2 Bro. P. C., 375.
 
 516 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 put upon it, the mortgagee or incumbrancer will be allowed, as against 
 the estate,* his costs, including all costs which he may have incurred in 
 defending or asserting his title to it. f A mortgagee or other incum- 
 brancer is, however, liable to forfeit his claim for costs by misconduct 
 with reference to the suit, or the subject of it.| 
 
 ORDER LYI. 
 
 NOTICES AND PAPER, ETC. 
 
 Rule 1. 
 
 All notices required by these Rules shall be in writing, 
 unless expressly authorised by a Court or Judge to be given 
 orally. 
 
 This is Rule 1 of the Lth Order of the Eules of Court, drawn up in 
 1874, under the Principal Act. 
 
 By the Reg. Gen. HU. T. 1853, Rule 161, all notices required by those 
 Rules or by the practice of the Common Law Courts are to be in writing. 
 The present Rule adopts this Rule, engrafting upon it, however, an impor- 
 tant exception. 
 
 Rule 2. 
 
 Proceedings required to be printed shall be printed 
 on cream- wove machine drawing foolscap folio paper, 19 
 Ibs. per mill ream, or thereabouts, in pica type leaded, 
 with an inner margin about three-quarters of an inch wide, 
 and an outer margin about two inches and a half wide. 
 
 See Order V of the " Additional Rules of Court." 
 
 This is Rule 2 of the Lth Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 This Rule, which effects a considerable change in the practice at Com- 
 mon Law, is copied verbatim from Order IX, Rule 3, of the Consolidated 
 Orders of the Court of Chancery. 
 
 Writs of summons are, by Order V, Rule 5, supra, directed to be printed 
 " on paper of the same description as hereby directed in the case of proceed- 
 ings directed to be printed." 
 
 Prior to the 15 & 16 Viet., c. 86, the practice was to engross Bills of 
 Complaint in Chancery on parchment. That enactment expressly provided 
 that this practice should be "discontinued." Thenceforth Bills have 
 been printed. At Common Law the practice has hitherto been to engross 
 the declaration, and pleas on " plain paper,' ' || but to engross the wnt 
 
 * Detillin v. Gale, 7 Ves. 583. 
 t Hunt v. Fownes, 9 Ves. 70. 
 J Francklyn v. Fern, Barnard, 30. 
 
 It was no objection that it was partly written and partly printed ; 
 Brand v. ich, 2 Moore, 654. 
 || Archbold's Practice, 232, 289.
 
 RULES OF COURT. 517 
 
 of summons, on the other hand, on parchment* which has the great advan- 
 tage of being a durable substance, not liable to be torn or destroyed while 
 undergoing frequent manipulations, f 
 
 Rule 3. 
 
 Any affidavit may be sworn to either in print or in manu- 
 script, or partly in print and partly in manuscript. 
 
 This is Rule 4 of the Lth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act, the words " or partly in print and partly 
 in manuscript" being (very usefully) added at the end. 
 
 This was originally Rule 3 of the Order. No fewer than 7 Rules of 
 this Order (of which there were originally 10) were struck out in com- 
 mittee on the Bill in the House of Commons. Rule 8 of this Order was 
 opposed by Mr. Gregory on behalf of the Incorporated Law Society .J 
 
 ORDER LVII. 
 
 TIME. 
 
 Rule 1. 
 
 Where by these Rules, or by any judgment or order 
 given or made after the commencement of the Act, time 
 
 * Archbold's Practice, p. 198. 
 
 f FORMS of Writs of Summons and of other printed proceedings 
 under these Acts can be obtained of Messieurs WATERLOW AND SONS, 
 66, LONDON WALL, CITY ; 24, Birchin Lane, City ; and 49, Parliament 
 Street, Westminster. 
 
 % As a matter of antiquarian interest, it may not be out of place to 
 insert here the rejected Rules. They may possibly reappear, indeed, in 
 an amended form : " 3. Where by the Act or these Rules, or by any 
 order of the Court (whether of appeal or otherwise) or a Judge, any 
 pleading or evidence or other document is ordered to be printed by any 
 party, such party shall, upon request and upon payment therefor at 
 the rate of halfpenny per folio of 72 words, deliver any number of 
 copies not exceeding 10 to any party. 
 
 " 5. Every affidavit filed under a consent to take the evidence in an 
 action by affidavit, shall, unless the Court or a Judge shall otherwise 
 order, be printed under the direction of the officer with whom it is filed, 
 in the same manner in which affidavits have heretofore been printed under 
 the direction of the Record and Writ Clerks in the Court of Chancery. 
 
 " 6. Any affidavit, other than those mentioned in the last Rule, may 
 be printed in manner thereby provided, if all the parties interested 
 consent thereto, or the Court or a Judge so order. 
 
 " 7. The party filing an affidavit required or ordered to be printed, 
 shall leave with the officer with whom it is filed a fair copy thereof, 
 such copy to be written on draft paper on one side only. 
 
 "8. Any party requiring a copy of any affidavit filed by any other 
 party shall take an office copy. 
 
 " 9. An office copy of any affidavit required or ordered to be printed 
 under these Rules shall be a printed copy. 
 
 " 10. The party filing any affidavit required or ordered to be printed
 
 518 SUPREME COUET OF JUDICATURE ACT, 1875. 
 
 for doing any act or taking any proceeding is limited by 
 months, not expressed to be lunar months, such time 
 shall be computed by calendar months. 
 
 This is Rule 1 of the List Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 By Order XXXVII., Rule 10 of the Consolidated Orders of the Court 
 of Chancery, " where the time for doing any act or taking any proceeding 
 is limited hy months, not expressed to he calendar months, such time shall 
 he computed hy lunar months of 28 days each." This, it will he perceived, 
 is the exact converse of the present Rule, so that the system of com- 
 puting months in Chancery will he entirely changed. The change 
 will not he confined, however, to Chancery practice, for in legal pro- 
 ceedings generally a month is 28 days, or four weeks. Tullet v. Linjield, 
 3 Burr. 455, 1 W. Bl. 450 ; Soper v. Curtis, 2 Dowl., 237. 
 
 The present Rule follows the 13 and 14 Viet., c. 21, s. 4, hy which it 
 is declared that "in all Acts of Parliament the word 'month' is to 
 he taken to mean calendar month, unless words he added showing that 
 lunar month is intended." 
 
 Rule 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, Christmas 
 Day, and Grood Friday shall not be reckoned in the 
 computation of such limited time. 
 
 This is Rule 2 of the List Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 This Rule is copied verbatim from Order XXXVII. , Rule 11 of the 
 Consolidated Orders of the Court of Chancery. 
 
 Rule 3. 
 
 Where the time for doing any act or taking any pro- 
 ceeding 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. 
 
 This is Rule 3 of the List Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 shall take a printed office copy, paying therefor at the rate of two . 
 pence per folio. 
 
 " Every other printed office copy shall he paid for at the rate of one 
 penny per folio." 
 
 (See the " Additional Rules of Court," infra.}
 
 RULES OF COURT. 519 
 
 This Rule is copied verbatim from Order XXXVII., Eule 12, of the 
 Consolidated Orders of the Court of Chancery. 
 
 Rule 4. 
 
 No pleadings shall be amended or delivered in the Long 
 Vacation, unless directed by Court or a Judge. 
 
 This is Rule 4 of the List Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 The Long Vacation commences on the 10th of August, and terminates 
 on the 24th of October (Order LV., Rule 2). 
 
 The 2 Win. IV., c. 39, provided that no plea should be delivered between 
 the 10th of August and the 24th of October. A plea delivered within 
 this period was a nullity, and the plaintiff might, after the time for 
 pleading had expired, sign judgment.* 
 
 Rule 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. 
 
 This is Rule 5 of the List Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 This Rule is taken from Order XXXVII., Rule 13, of the Consolidated 
 Order of the Court of Chancery, the word "Long " being, however, inserted 
 before " Vacation," so as to restrict the operation of the Rule. 
 
 Rule 6. 
 
 A Court or a Judge shall have power to enlarge or 
 abridge the time appointed by these Rules, or fixed by any 
 order enlarging time, for doing any act or taking any 
 proceeding, upon such terms (if any) as the justice of 
 the case may require, and any such enlargement may be 
 ordered, although the application for the same is not made 
 until after the expiration of the time appointed or allowed. 
 
 This is Rule 6 of the List Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 This Rule is taken from Order XXXVII., Rules 17 and 18, of the, Con- 
 solidatcd Orders of the Court of Chancery, but it is more liberal than 
 those Rules in its concluding proviso, as they require that a second appli- 
 cation for an enlargement of time shall be made before the expiration of 
 the time previously allowed. 
 
 * The vesting a discretion in the Court or a Judge by the present Rule 
 is a decided improvement.
 
 520 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 ORDER LVIII. 
 
 APPEALS. 
 
 Rule 1. 
 
 Bills of exceptions and proceedings in error shall be 
 abolished. 
 
 This Rule is a re-enactment of Rule 49 of the Principal Act. 
 
 See the footnote at p. 241. 
 
 This Rule is copied verbatim from the First Report of the Judicature 
 Commission* : " All proceedings in error and bills of exceptions," they 
 recommended, " should be abolished." 
 
 They set out as follows the arguments against allowing any more bills of 
 exceptions : "As to bills of exceptions, the rule is that they must be ten- 
 dered at the time of the trial, and before verdict given, excluding all oppor- 
 tunity for deliberate consideration, and giving occasion to difficulties as to 
 the proper mode of stating the terms or substance and effect of the Judge's 
 ruling; no bill of exceptions being admissible, unless signed by the 
 Judge, and no proof of his ruling, extrinsic to the bill of exceptions itself 
 (i.e., by shorthand note or otherwise), being allowed. The practice has 
 been to transcribe a hasty and imperf ect note at the trial, leaving the bill 
 of exceptions itself to be afterwards agreed upon by the parties, or settled 
 by the Judge. In some cases it is found difficult, in others impossible, 
 to come to any agreement or settlement, and whenever any difference 
 arises, it leads to great delay and expense. The cases are so few in 
 which points of law really intended to be raised can be satisfactorily taken 
 by this form of proceeding, that it is of little use. The convenient mode, 
 and that generally adopted, of raising those points, except when the 
 parties agree to have a special case stated, a practice attended with its 
 own inconveniences, is either by reserving them at the trial, which de- 
 pends on the leave of the Judge and the consent of the parties, or by 
 motion for a new trial. The power of appeal, when the latter mode is 
 adopted, if the Court gives a unanimous judgment, is not of right, but 
 depends on the will and discretion of the Court." 
 
 With regard to the "inconveniences" of "proceedings in error," the 
 Judicature Commissioners remark,t that " error cannot be brought from an 
 interlocutoryjudgment, e.g., a judgment allowing a demurrer, before the 
 final determination of all issues of law and of fact joined upon the record. 
 The point of law decided on the demurrer may be sufficient, if the judg- 
 ment stands, to determine the whole controversy between the parties, yet 
 if, as is commonly the case, issues of fact as well as of law have been joined 
 in the pleadings, it is necessary to go through the expense and delay of 
 trying all those issues (though according to the judgment in the demurrer 
 they are wholly immaterial) to get into the Court of Error." 
 
 The present Rule sweeps away, of coui'se, the minute details of the 
 Common Law Procedure Acts respecting procedure in error and on 
 appeals. J 
 
 It must not be supposed that the Common Lawyers in the House of 
 Commons submitted, without a murmur, to the abolition of bills of excep- 
 tions and proceedings in error. Mr. Lopes, Q.C., gave notice of his 
 
 * P. 24. | First Report, p. 22. 
 
 t See the Act of 1852, ss. 146-167, and the Act of 1854, ss. 34-43.
 
 RULES OF COURT 521 
 
 intention to move the omission of this Rule in Committee, and Mr. Morgan 
 Lloyd, Q.C., gave the following notices : 
 
 " Schedule, page 91, Order 58, sub-section 1, line 32, leave out ' bills 
 of exceptions and.' 
 
 "Schedule, page 91, Order 58, sub-section 1, line 33, after ' abolished,' 
 add ' Provided, that nothing in this or the Principal Act contained 
 shall deprive any party to an action of the right to tender a bill of 
 exceptions to any ruling of a Judge which he would have had if the 
 said Acts had not been passed," 
 
 "Add sub-section 1 a, as follows: 
 
 " ' Proceedings upon bills of exceptions shall be heard by the said Court 
 of Appeal, and the provisions contained in these Rules shall apply to 
 regulate such proceedings, so far as they are applicable.' " 
 
 These notices, however, were not acted upon.* 
 
 Rule 2. 
 
 All appeals to the Court of Appeal shall be by way of 
 re-hearing, and shall be brought by notice of motion in a 
 summary way, and no petition, case, or other formal pro- 
 ceeding 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. 
 
 This Eule is a re-enactment of Eule 50 of the Principal Act. 
 
 The first clause of this Rule is copied verbatim from the First Report of 
 the Judicature Commissioners,! who advised that " every appeal should 
 be deemed to be in the nature of a re-hearing ; should be brought by 
 notice of motion, in a summary way, without any petition or formal 
 procedure." Prior to the enactment appeals by way of re-hearing were 
 usually heard on petition, and only orders made upon motion were heard 
 upon motion J so that this Rule involves a considerable change even in 
 Chancery practice, from which the procedure of this Order is otherwise, 
 for the most part, taken. 
 
 The appeal under the Common Law Procedure Acts, 1854 and 1860, was 
 by way of case stated. See s. 39 of the Act of 1854 and s. 9 of the Act 
 of 1860. 
 
 Rule 3. 
 
 The notice of appeal shall be served upon all parties 
 directly affected by the appeal, and it shall not be necessary 
 
 * Mr. Lopes was obliged to leave town for circuit, and Mr. Morgan 
 Lloyd and he made verbal protests against this Rule. 
 
 t First Report, p.24. J See Daniel's Chancery Practice, chap, xxxii., s. ii. 
 
 The Ride clearly repeals Order XXXI., Rule 8, of the Consolidated 
 Orders of that Court.
 
 522 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 to serve parties not so affected ; but the Court of Appeal 
 may direct notice of the appeal to be served on all or any 
 parties to the action or other proceeding, or upon any per- 
 son not a party, and in the meantime may postpone or 
 adjourn 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 been originally parties. Any 
 notice of appeal may be amended at any time as to the 
 Court of Appeal may seem fit. 
 
 This Rule is a re-enactment of Rule 51 of the Principal Act. 
 
 At the foot of a petition of appeal in Chancery it "was necessary to state 
 the names of the parties intended to he served.* 
 
 A petition of appeal in Chancery was not itself served upon the parties, 
 but they might obtain copies of it from the appellant's solicitor or in de- 
 fault, office copies from the Report Office. The order for setting down 
 the petition for hearing was served, but it might be served only two 
 days before the hearing, t A similar interval was all that was necessary 
 in the case of appeal motions. 
 
 Rule 4. 
 
 Notice of appeal from any judgment, whether final or 
 interlocutory, shall be a fourteen days' notice, and notice 
 of appeal from any interlocutory order shall be a four days' 
 notice. 
 
 This is Rule 1 of the Lllnd Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 Only two days' notice, as we have seen, J was necessary for the hearing of 
 petitions of appeal and appeal motions in Chancery. See the note to 
 Rule 9 as to the length of notice in appeals from the Court of Bankruptcy 
 and the note to Rule 15 as to the length of notice hitherto in appeals 
 from the Court of Admiralty. The latter part of this Rule is taken from 
 s. 37 of the Common Law Procedure Act, 1851. 
 
 Rule 5. 
 
 The Court of Appeal shall have all the powers and 
 duties as to amendment and otherwise of the Court of First 
 Instance, together with full discretionary power to 
 receive further evidence upon questions of fact, such 
 
 * Chancery Order of 19 March, 1869. 
 
 f Daniel's Chancery Practice, pp. 1352 and 1356. J Note to Rule 3.
 
 RULES OF COURT. 523 
 
 evidence to be either by oral examination in court,* by 
 affidavit, or by deposition taken before an examiner or 
 commissioner. Such further evidence may be given 
 without special 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 further 
 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 exercised by the said Court, notwith- 
 standing that the notice of appeal may be that part only 
 of the decision may be reversed or varied ; and such powers 
 may also be exercised in favour of all or any of the 
 respondents or parties, although such respondents or parties 
 may not have appealed from or complained 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. 
 
 This Eule is a re-enactment of Rule 52 of the Principal Act. 
 
 "Amendment." By the Common Law Procedure Act, 1852, s. 222, the 
 proceedings in error, like other proceedings, might have been amended, t 
 
 It would seem, also, that the rules with respect to amendment at the 
 hearing of a cause applied to the giving leave to amend at the hearing of 
 an appeal.^ 
 
 " Further evidence." Upon a re-hearing it was not, in general, com- 
 petent to either party to enter into any new evidence. Bat an application 
 on motion or petition which had failed below might have been renewed 
 before the Court of Appeal on fresh evidence. 
 
 * 15 and 16 Viet. c. 86, s. 39. 
 
 f Archbold's Practice, p. 555. 
 
 J Daniel's Chancery Practice, p. 1356 ; President of St. Mary MagdaUne 
 v. Sibthorpe, I Russ., 154. 
 
 Addison v. ffindmarsh, 1 Yern., 422. Re European Bank, L. R. 5. Ch. 
 358, 362.
 
 524 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 "Matters which occurred after the date of ?the decision." Under the 
 former Chancery practice no evidence was allowed to bo given as to 
 matters which had occurred since the original hearing.* This practice is 
 henceforth to be changed. 
 
 " Any judgment which ought to have been made. " This is copied from 
 s. 41 of the Common Law Procedure Act, 1854 : "The Court of Appeal 
 shall give such judgment as ought to have been given in the Court below," 
 The Common Law Procedure Act, 1852, s. 157, has a similar provision: 
 " The Courts of Error shall in all cases have power to give such judgment 
 as the Court from which error is brought ought to have given, without 
 regard to the party alleging error '.'' 
 
 " The Costs." The costs of a rehearing in the Court of Chancery 
 were in the discretion of the Court ;f but, generally, if an appeal was 
 dismissed, it was so with costs.J Where an appeal was partly suc- 
 cessful only, no costs of appeal were usually given ; but there was no 
 rule against giving a successful appellant all his costs. 
 
 By s. 42 of the Common Law Procedure Act, 1854, the Court of Appeal 
 had "power to adjudge payment of costs;" and the ordinary practice 
 under that enactment was to adjudge costs of appeal to a successful 
 respondent, but not to a successful appellant. || 
 
 The present Rule leaves the costs in the discretion of the Court of 
 Appeal. 
 
 Rule 6. 
 
 It shall not, under any circumstances, be necessary 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 affected 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 dis- 
 cretion of the Court, be ground for an adjournment of the 
 appeal, or for a special order as to costs. 
 
 This Rule is a re-enactment of Rule 53 of the Principal Act. 
 
 " Cross Appeal." In the Court of Chancery, as between the respon- 
 
 * Lambe v. Orton, 33 L. J. Ch. 81. 
 
 t Webster -v. Cook, L. R., 2 Ch., 542, 648 
 
 %McCal,nont v. Rankin, 2 De G. M. & G-., 403, 426. 
 
 Collins v. Burton, 4 De Gr. & J., 612, 619. 
 
 || Barker v. Windle, 6 E. and B., 675.
 
 RULES OF COURT. 525 
 
 dent and the parties other than the appellant, only the point appealed 
 from was open to the respondent.* Therefore, where there was an ap- 
 peal against part of a decree, and the respondent or some other party felt 
 himself aggrieved by another part, not affecting the interest of the 
 appellant, he was obliged to present a cross-appeal. The appeal and 
 the cross-appeal might then be heard at the same time, and one order be 
 made in both.* 
 
 The present Rule renders this practice no longer necessary, and makes 
 other provisions to meet such a case when it arises. 
 
 Rule 7. 
 
 Subject to any special order which, may be made, 
 notice by a respondent under the last preceding Rule 
 shall, in the case of any appeal from a final judgment, 
 be an eight days' notice, and, in the case of an appeal 
 from an interlocutory order, a two days' notice. 
 
 This is Rule 2 of the LTInd Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act, " the last preceding Rule" being sub- 
 stituted for " Section 53 of the Schedule," in order to bring the Rule into 
 harmony with the present Act. 
 
 " Two days' notice." See note to Rules 3 and 4 of this Order. 
 
 Rule 8. 
 
 The party appealing from a judgment or order shall 
 produce to the proper officer of the Court of Appeal the 
 judgment or order, or an office copy thereof, and shall leave 
 with him a copy of the notice of appeal to be filed, and 
 such officer shall thereupon set down the appeal by enter- 
 ing the same in the proper list of appeals, and it shall come 
 on to be heard according to its order in siich list, unless 
 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. 
 
 This is Rule 3 of the Lllnd Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 " Produce the order." This is in accordance with the former practice 
 of the Court of Chancery with regard to appeal motions. They were set 
 
 * Lord Broke v. Earl of Warwick, 13 Jur., 547, L.C. 
 f Blackburn v. Jepson, 2 V. and B.. 359.
 
 526 SUPREME COURT OF JUDICATURE ACT, 1876. 
 
 down by the Order of Course Clerk in the Registrar's Office upon the pro- 
 duction of the order appealed from or an office copy of it, and upon filing 
 with him a copy of the notice of motion.* 
 
 Rule 9 
 
 The time for appealing from any order or decision 
 made or given in the matter of the winding-up of a com- 
 pany under the provisions of the Companies 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 Rule 15. 
 
 This is the 4th Rule of the Lllnd Order of the Rules of Court, drawn 
 up in 1874, under the Principal Act. 
 
 By the Reg. Gen. of 1870, made in pursuance of the Bankruptcy Act, 
 1869, it is provided, that an appeal against a decision or order of the 
 Chiet Judge in Bankruptcy shall be entered with the Registrar of Appeals 
 within 21 days from such decision or order, the same period which is 
 limited in all cases of interlocutory appeals by Rule 15, infra. By s. 124 
 of the Companies Act, 1862, "re-hearings of and appeals from any order 
 or decision made or given in the matter of the winding-up of a com- 
 pany may be had in the same manner and subject to the same conditions 
 in and subject to which appeals may be had from any order or decision of 
 the same Court in cases within its ordinary jurisdiction. Three weeks' notice 
 of appeal must be given under the same section, unless the time be ex- 
 tended by the Court of Appeal. 
 
 Rule 10. 
 
 "Where an ex parte application has been refused by the 
 Court below, an application for a similar purpose may be 
 made to the Court of Appeal 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. 
 
 This is Rule 5 of the Lllnd Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 When an order was made by the Lord Chancellor on an ex parte appli- 
 cation, it was the practice to introduce into the order a provision that the 
 other party should be at liberty to apply to the Judge to whose Court the 
 cause was attached to vary or discharge it.t 
 
 * Reg. Regul., 15th March, 1860, Rules 1 & 11. 
 
 t George v. Whatworth, 4 L. J., Ch., N. S., 61, 62. See Lindsay v. 
 Tyrrell, 2 De Gr. & L. J., 7.
 
 RULES OF COURT. 527 
 
 Rule 11. 
 
 When any question of fact is involved in an appeal, the 
 evidence taken in the Court below bearing on such question 
 shall, subject to any special order, be brought before the 
 Court of Appeal as follows : 
 
 (a.) As to any evidence taken by affidavit, by the pro- 
 duction of printed copies of such of the affidavits 
 as have been printed, and office copies of such of 
 them as have not been printed. 
 
 (&.) As to any evidence given orally, by the production 
 of a copy of the Judge's notes, or such other materials as 
 the Court may deem expedient. 
 
 This Rule is substituted for Rule 54 of the Principal Act, the words 
 "in such manner as maybe directed" being omitted after the words 
 "Court of Appeal," and the two sub-sections (a) and (J) added. 
 
 The Rule in its present form is copied from Rule 6 of the Lllnd Order 
 of the Rules of Court, drawn up, in 1874, under the Principal Act. Sub- 
 section (a) of this Rule is explained by the Order of the Court of 
 Chancery of the 16th May, 1862, by which it is provided, that all affi- 
 davits on the hearing of any cause on which issue shall have been joined, 
 or on a notice of motion for a decree, shall be printed, except affidavits 
 filed for the purpose of any interlocutory application, of which office copies 
 shall have been taken for that purpose. 
 
 Order XXXVIII, Rule 4 also of the present Schedule provides that 
 where evidence in any action is taken by affidavit it shall be printed. (See 
 also the Additional Rules, Order 3.) 
 
 Sub-section (b) of this Rule is in accordance with the practice of the 
 Court of Chancery ; the Chancery Order of the 5th February, 1861, Rule 
 14, providing that "upon any appeal or rehearing by way of appeal the 
 Judge's notes of the viva voce evidence shall, primd facie, be deemed to be 
 a sufficient note thereof." 
 
 Rule 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 purpose of the appeal. 
 Any party printing evidence for the purpose of an appeal 
 without such order shall bear the costs thereof unless the 
 Court of Appeal, or a Judge thereof, shall otherwise 
 order.
 
 528 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 This is Rule 7 of the LTInd Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. (See Orders I and II of the Additional 
 Rules of Court of the 12th August, 1865.) 
 
 The last clause of this Rule places a most salutary check on the system 
 of indiscriminate printing, which makes appeals so expensive to the 
 suitor. (It is to be hoped that a check will be placed on printing in 
 appeals to the House of Lords) . 
 
 Rule 13. 
 
 If, upon the hearing of an appeal, a question arise as to 
 the ruling or direction of the Judge to a Jury or assessors, 
 the Court shall have regard to verified notes or other 
 evidence, and to such other materials as the Court may 
 deem expedient. 
 
 This Rule is a re-enactment of Rule 55 of the Principal Act. 
 
 " Upon appeals proof of a Judge's ruling by a shorthand writer's notes, 
 ought, in our opinion, to be received." First report of the Judicature 
 Commission, p. 24. (See Rule 11 (5).) 
 
 Rule 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. 
 
 This Rule is a re-enactment of Rule 56 of the Principal Act. 
 
 This Rule is copied almost verbatim from the First Report of the Judi- 
 cature Commission,* who recommended that ' ' no interlocutory order 
 from which there has been no appeal, should operate so as to bar or pre- 
 judice a decision upon the merits." 
 
 Rule 15. 
 
 No 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 other appeal 
 shall, except by such leave, be brought after the expira- 
 tion of one year. The said respective periods shall be cal- 
 culated from the time at which the judgment or order is 
 signed, entered, or otherwise perfected, or, in the case of 
 
 * P. 24.
 
 RULES OF COURT. 529 
 
 the refusal of an application, from the date of such refusal. 
 Such deposit or other security for the costs to be occa- 
 sioned by any appeal shall be made or given as may be 
 directed under special circumstances by the Court of 
 Appeal. 
 
 This Rule is a re-enactment of Rule 57 of the Judicature Act, the 
 words, " or from such time as may be prescribed by Rules of Court," 
 being omitted, as inapplicable to the present Act. 
 
 The periods fixed by this Rule are, generally speaking, very much 
 shorter than those previously sanctioned by the Legislature in each of 
 the Courts. 
 
 " For appeals and rehearings in Chancery," observe the Judicature 
 Commissioners, "a period ofjire years* from the date of the decree or order 
 appealed from is allowed, after which the leave of the Lord Chancellor or 
 Lords Justices is necessary, and such leave may be given at any time, 
 but will only be given if it shall appear, under the peculiar circumstances 
 of the case, to be just and expedient. 
 
 " At Common Law six years-\- from the date of final judgment are al- 
 lowed for bringing error to the Exchequer Chamber. In cases of appeal 
 as distinguished from error, in the Common Law Courts, notice of appeal 
 must be given within four days\ after the decision appealed from, unless the 
 time is enlarged. When such notice is given, which for want of oppor- 
 tunity of full consideration it generally is, no time is limited within 
 which the party must proceed to prosecute his appeal. 
 
 " In the Probate Court || application for leave to appeal from an inter- 
 locutory decree or order must be made within a month after the delivery 
 of the decree or order, or within such enlarged time as the Court may 
 direct, and it may be doubted whether any time is limited for appealing 
 from decrees or orders. 
 
 " Appeals from the Court of Admiralty must be founded either on no- 
 tice given to the registrar immediately after the delivery of the judgment, 
 or upon a declaration, called a ' Protocol of Appeal,' and made be- 
 fore a notary and witnesses within 15 days, and must be prosecuted by 
 presenting a petition of appeal to your Majesty in Council within 1 year^ 
 from the date of the sentence or decree appealed from." 
 
 Having given this statistical review of the question,** the Judicature 
 Commission proceed to recommendff that "the time for appealing from 
 interlocutory orders made in the progress of a suit, before the final deci- 
 sion upon the merits between the parties, ought to be regulated by 
 general orders. In all other cases a fixed period, not exceeding 6 months 
 
 * Order XXXI., Rule 1, of the Consolidated Orders of the Court of 
 Chancery. 
 
 t Common Law Procedure Act, 1852, s. 146. 
 
 J Common Law Procedure Act, 1854, s. 37. 
 
 Loveland v, Lumley, 5 H. and N". 656. 
 
 || Rules of the Court of Probate, Rule 87. 
 
 IT A year and a day. Williams and Bruce' s Admiralty Practice, p. 314. 
 
 ** First Report, pp. 22, 23. 
 
 ff Ib. p. 24. 
 
 34
 
 530 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 from the time when any judgment, decree, rule, or order is made or en- 
 tered upon the record, should be allowed for appealing against it." 
 
 It will he seen that the framers of this Rule have followed an inde- 
 pendent course. They have adopted, as to the time within which an appeal 
 must be brought from an interlocutory order, the rule laid down as to 
 appeals from the Chief Judge in Bankruptcy (see note to Rule 9 of this 
 Order)* and they have adopted, as to the time within which an appeal 
 must be brought in other cases, the practice of the Court of Admiralty. 
 
 " Security for costs." The former practice with regard to giving 
 security for costs is thus stated by the Judicature Commissioners : t 
 
 " In the Court of Chancery no security for the costs of appeal is re- 
 quired beyond a deposit of 20J with the Registrar, when the petition is 
 for rehearing of a decree or decretal order. Upon interlocutory appeals 
 no deposit is made. In the Courts of Common Law every appellant (in 
 an appeal, technically so called), and every defendant in an action who 
 brings error is required to give substantial bail to pay costs ; but a 
 plaintiff who is a plaintiff in error gives no security. In the Courts of 
 Probate and Divorce no security for costs is taken. Appellants from the 
 Court of Admiralty, if resident out of the jurisdiction of the Court, may 
 be required to give bail in 300 ; if within the jurisdiction, they give no 
 security." 
 
 The Judicature Commissioners then recommend that " the right of 
 appeal should, as a general rule, be conditional on substantial security being 
 given by the appellant for the costs of the appeal. Inasmuch, however, as 
 there may be cases to which this rule could not be applied without incon- 
 venience or injustice, both the nature and the amount of such security, ami 
 the regulations according to which it may be required or dispensed with, 
 are subjects which may properly be dealt with by General Orders of the 
 Court." 
 
 It will be seen that this recommendation is dealt with in the last clause 
 of the present Rule. 
 
 Rule 16. 
 
 An appeal shall not operate as a stay of execution 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. 
 
 This Rule is a re-enactment of Rule 58 of the Principal Act. 
 On the subject-matter of this Rule the Judicature Commissioners ob- 
 serve : " In the Court of Chancery and the Probate Court an appeal 
 
 * In the Court of Probate no appeal from an interlocutory order can 
 be lodged without leave of the Court of Probate : 20 and 21 Viet., c. 77, 
 B. 39. t First Report, p. 23. 
 
 J Order XXXI., Rule 4, of the Consolidated Orders of the Court of 
 Chancery. First Report, pp. 23, 24.
 
 RULES OF COURT. 531 
 
 does not operate as a stay of execution, unless the Court, upon special 
 application, so directs.* In the Courts of Common Law appeal or error 
 operates always as a stay of execution, as soon as security is given.f In 
 the Court of Admiralty an appeal is followed, of course, by an inhi- 
 bition, which has the same effect." J The Commissioners then recommend, 
 that " no appeal shall operate as a stay of execution or of proceedings 
 under the order appealed from, unless the Court or a Judge of the Court 
 from which the appeal is brought, or the Court of Appeal, shall so order. 
 But such stay of execution should be granted, as, of course, when the 
 order under appeal is for a money payment, on the terms of payment of 
 the money into Court, or of security being given to the satisfaction of the 
 Court." 
 
 It will be seen that the first sentence of the present Rule is copied 
 rbatim from the recommendation of the Judicature Commissioners. 
 
 Rule 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. 
 
 This is Rule 8 of the Lllnd Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. See s. 50 of the Principal Act, the 
 previous Rule, and Order LX., Rule 6, infra. 
 
 Rule 18. 
 
 Every application to a Judge of the Court of Appeal 
 shall be by motion, and the provisions of Order LIU. shall 
 apply thereto. 
 
 This is Rule 9 of the Lllnd Order of the Rules of Court, drawn up 
 in 1874, under the Principal Act. (See p. 506.) 
 
 ORDER LIX. 
 
 EFFECT OF NON-COMPLIANCE. 
 
 Non-compliance with any of these Rules shall not render 
 the proceedings in any action void unless the Court or a 
 Judge shall so direct; but such proceedings maybe set 
 aside either wholly or in part as irregular, or amended, 
 
 * Order XXXI., Rule 2, of the Consolidated Orders of the Court of 
 Chancery. 
 
 t Common Law Procedure Act, 1854, s. 38 ; Common Law Procedure 
 Act, 1860, s. 18. 
 
 J Rules for Admiralty Appeals, Rule 4.
 
 532 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 or otherwise dealt with in such manner and upon such 
 terms as the Court or Judge shall think fit. 
 
 This is Order LIII. of the Rules of Court, drawn up, in 1874, under 
 the Principal Act. 
 
 This Eule embodies an important saving principle often acted upon 
 by the Court of Chancery. Thus, an order which is not in compliance 
 with the Chancery Orders cannot be treated as a nullity : it must be 
 properly discharged.* 
 
 By Order III, Rule 5, of the Consolidated Orders of the Court of 
 Chancery, a party suing in person must endorse his name and resi- 
 dence and address for service upon every writ which he shall sue out. 
 Where a plaintiff neglected to indorse his address for service on a writ of 
 subpcena under the old Chancery practice, from the decision in the 
 case of Price v. Webb, 2 Hare oil, 513, it would appear that the writ was 
 not void, but that the Court would so deal with the proceedings by 
 staying process or otherwise, as to give the defendant the benefit of the 
 Rule.t 
 
 Very full powers of amendment of the pleadings are given by Order 
 XXVII. of this Schedule. 
 
 Irregularity is generally visited, both at law and in equity, with costs. 
 
 OEDEE LX.J 
 
 OFFICERS. 
 
 Rule 1. 
 
 All officers, who, at the time of the commencement of 
 the said Act, shall be attached to the Court of Chancery, 
 shall be attached to the Chancery Division of the said 
 High Court ; and all officers, who, at the time of the com- 
 mencement of the said Act, shall be attached to the Court 
 of Queen's Bench, shall be attached to the Queen's Bench 
 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 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 
 
 * Wilkins v. Stevens, 10 Sim. 617 ; Slake v. JBlake, 1 Beav., 514; Flem- 
 ings '. Hvmphery, 4 Beav. 1. 
 
 t Morgan and Chute's Chancery Acts and Orders, pp. 388, 395. 
 
 j See, as to the subject-matter of present Order, ss. 77 and 84 of the 
 Principal Act.
 
 RULES OF COURT. 533 
 
 High Court ; and all officers, vrho, at the time of the com- 
 mencement of the said Act, shall be attached to the Court 
 of Probate, the Court of Divorce, and the Court of 
 Admiralty respectively, shall be attached to the Probate, 
 Divorce, and Admiralty Division of the said High Court. 
 
 This is Rule 1 of the LIVth Order of the Eules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 The words " and the London Court of Bankruptcy " were struck out in 
 Committee, after " Court of Exchequer," hy the Attorney-General. 
 
 This is one of the transition Rules of this Schedule. 
 
 Rule 2. 
 
 Officers attached to any Division shall follow the ap- 
 peals from the same Division, and shall perform in the 
 Court of Appeal analogous duties in reference to such 
 appeals 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 Bench, Common Pleas, and 
 Exchequer respectively performed as to appeals heard by 
 the Court of Exchequer Chamber. 
 
 This is Rule 2 of the LIVth Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 This is one of the transition Rules of this Schedule. 
 
 For examples of the duties performed by Registrars on rehearinga, see 
 Order XXXI., Rules 4 and 5 of the Consolidated Orders of the Court of 
 Chancery ; hy the Masters in proceedings in error, the Common Law 
 Procedure Act, 1852, ss. 149, 158. 
 
 ORDER LXL* 
 
 SITTINGS AND VACATIONS. 
 
 The sittings of the Court of Appeal and the sittings 
 in London and Middlesex of the High Court of Justice 
 shall be four in every year, viz., the Michaelmas sittings, 
 the Hilary sittings, the Easter sittings, and the Trinity 
 sittings. 
 
 * This Order should he read in connection with ss. 26-30 of tho 
 Principal Act. See pp. 68 75.
 
 534 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 The Michaelmas sittings shall commence on the 2nd of 
 November and terminate on the 21st of December; the 
 Hilary sittings shall commence on the llth of January 
 and terminate on the Wednesday before Easter; the 
 Easter sittings shall commence on the Tuesday after Easter 
 week and terminate on the Friday before Whitsunday. 
 The Trinity sittings shall commence on the Tuesday after 
 Whitsun week and terminate on the 8th of August. 
 
 This is Rule 1 of the LVth Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 It will be observed that the Michaelmas " sittings" commence on the 
 same day as the former Michaelmas "term," and the Hilary " sittings" 
 on the same day as the former Hilary " term." 
 
 It will be also noticed that the " sittings " extend in length far beyond 
 the former " terms," and include the periods usually appropriated to the 
 Assizes. 
 
 Eule 2. 
 
 The vacations to be observed in the several Courts and 
 offices of the Supreme Court shall be four in every year, 
 viz., the Long Vacation, the Christmas Vacation, the Easter 
 Vacation, and the Whitsun Vacation. 
 
 The Long Vacation shall commence on the 10th of August 
 and terminate on the 24th of October. The Christmas 
 Vacation shall commence on the 24th of December and ter- 
 minate on the 6th of January. The Easter Vacation shall 
 commence on Good Friday and terminate on Easter Tues- 
 day; and the Whitsun Vacation shall commence on the 
 Saturday before Whitsunday and shall terminate on the 
 Tuesday after Whitsunday. 
 
 This is Eule 2 of the LVth Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 This Rule ia partly taken from Rule 4 of Order V. of the Consolidated 
 Orders of the Court of Chancery. 
 
 The alterations are as follows : The Long Vacation is to end on the 
 24th of October instead of the 28th. The 24th of October is the recog- 
 nized day for the termination of the Long Vacation at Common Law. By 
 the 2 "Wm. IV., c. 39, s. 11, "No declaration or pleading after declaration
 
 RULES OF COURT. 535 
 
 shall be filed or delivered between the 10th of August and the 24th of 
 October."* 
 
 The Easter Vacation is to commence on Good Friday and end on Easter 
 Tuesday, instead of " the days " being left to the Lord Chancellor " every 
 year specially to direct." The Whitsun Vacation is defined, in the new 
 phraseology, to commence on "the Saturday before Whitsunday," instead 
 of " the third day after Easter term," and to terminate on " the Tuesday 
 after Whitsunday " instead of " the second day before Trinity term." 
 
 Although not expressly made in pursuance of s. 27 of the Principal 
 Act, this Rule practically carries out the objects which the framers of that 
 section had in view. (Sae pp. 69, 70.) 
 
 Rule 3. 
 
 The days of the commencement and termination of each 
 sitting and vacation shall be included in such sitting and 
 vacation respectively. 
 
 This is Rule 3 of the LVth Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 This Rule is copied verbatim from subsection (5) of the 4th Rule of the 
 Vth Order of the Consolidated Orders of the Court of Chancery. 
 
 Rule 4. 
 
 The several offices of the Supreme Court shall be open on 
 every day of the year, except Sundays, Good Friday, 
 Monday and Tuesday in Easter week, "Whit Monday, 
 Christmas Day, and the next following working day, and 
 all days appointed by proclamation to be observed as 
 days of general fast, humiliation, or thanksgiving. 
 
 This is Rule 4 of the LVth Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 This Rule is copied verbatim from Rule 1 of the Vth Order of the Con- 
 solidated Orders of the Court of Chancery, with the addition of the words 
 " and the next following working day " after " Christmas day." This 
 appears to be a concession to the somewhat more liberal arrangements for 
 holidays at the Masters' Offices. Reg. Gen. Hil. T., 1853, Rule 173, fol- 
 lowing 3 and 4 "Wm. IV. c. 42, s. 43, provides, that the Masters' Offices 
 shall be closed on " Christmas Day and the three following days." The 
 Masters' Offices were also closed on Easter Eve, and on Whit Tuesday (if 
 it did not fall in term time).f 
 
 * See also Reg. Gen. Hil. T., 1853, Rule 173. 
 
 t Reg. Gen. Hil. T., 6 Wm. IV., and Reg. Gen. Hil. T., 1853, 
 Sule 73.
 
 536 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Rule 5. 
 
 Two of the Judges of the High Court shall be selected 
 at the commencement of each Long Vacation for the 
 hearing in London or Middlesex during vacation of all 
 such applications 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 
 absence of arrangement between the Judges, the two 
 Yacation Judges shall be the two Judges last appointed 
 (whether as Judges of the said High Court or of any Court 
 whose jurisdiction is by the said Act transferred to the 
 said High Court) who have not already served as Vacation 
 Judges of any such Court ; and if there shall not be two 
 Judges for the time being of the said High Court who 
 shall not have so served, then the two vacation Judges 
 shall be the Judge (if any) who has not so served, and the 
 senior Judge or Judges who has or have so served once 
 only, according to seniority of appointment, whether in 
 the said High Court or such other Court as aforesaid. 
 The Lord Chancellor shall not be liable to serve as a Vaca- 
 tion Judge. 
 
 This is Eule 5 of the LVth Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 This Eule and the next are the " provisions made " for carrying out 
 Section 28 of the Principal Act. (Which see at p. 71.) 
 
 These Rules are founded on the previous practice of the Master of the 
 Rolls and the Vice-Chancellors, who, by an excellent arrangement amongst 
 themselves, took duty each for one year, according to a recognized rota, 
 as "Vacation Judge."* The duties of "Vacation Judge" commenced 
 immediately on the rising of the Courts for the Long Vacation,t although 
 they might have risen before the time fixed for the commencement of the 
 vacation. Contrary to the usual practice at other times the " Vacation 
 Judge" was expressly empowered to transact business belonging to 
 another Judge.J A similar rota existed at Common Law. 
 
 * See Daniel's Chancery Practice, pp. 849 and 1067. 
 
 ^Francis v. Browne, 8 Jur. N.S. 785; Re Bank of Hindustan, 16 L.T. 
 N.S. 760 ; Allen v. Hicks, W.N. (1870), 218. 
 
 1 Order VI., Rule 11, and Order XXXV., Rule 59, of the Consolidated 
 Orders of the Court of Chancery.
 
 KULES OF COURT. 537 
 
 The present Rule provides for two Vacation Judges, instead of one. It 
 may be assumed that the Chancery Division will supply one of these 
 Vacation Judges, and the Common Law Divisions the other. 
 
 It was not the practice of the Lord Chancellor or the Lords Justices to 
 serve as Vacation Judges. 
 
 Rule 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 Division the same may be assigned. 
 No order made by a Yacation Judge shall be reversed or 
 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 Yacation Judge. 
 
 This is Rule 6 of the LVth Order of the Rules of Court, drawn up in 
 1874, under the Principal Act. 
 
 This Rule, of course, is new. It provides, so to speak, a new Divisional 
 Court for the convenience of suitors. (See Order LVIII., Rule 17.) 
 
 Two Rules, which followed this one, were struck out in Committee on 
 the motion of the Attorney-General. They provided for one of the Ordinary 
 Judges of the Court of Appeal, sitting as a Vacation Judge, in addition 
 to the two Vacation Judges selected from the Judges of the High Court 
 of Justice. The omission of these Rules was necessitated by the reduction 
 in the number of " Ordinary " Judges of the Court of Appeal from 7* to 
 3.t 
 
 Rule 7. 
 
 The Yacation Judges of the High Court may dispose 
 of all actions, matters, and other business of 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 interval may not be called or 
 known as a " vacation." 
 
 * See section 6 of the Principal Act. 
 t See section 4 of this Act.
 
 538 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 This is Rule 9 of the LVth Order of the Rules of Court, drawn up, in 
 1874, under the Principal Act. 
 
 This is in accordance with the previous practice of the Court of 
 Chancery, as stated in the note to Rule 5 of this Order, supra. 
 
 ORDER LXII. 
 
 EXCEPTIONS FROM THE RULES. 
 
 Nothing in these Rules shall affect the Practice or Pro- 
 cedure 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 Divi- 
 sion : 
 Proceedings for Divorce or other Matrimonial causes. 
 
 This is Order LVI of the Rules of Court, drawn up, in 1874, under the 
 Principal Act. 
 
 The exceptions, it is to be noted, are only exceptions from the Rules of 
 the present Schedule, not from the rest of the Supreme Court of Judicature 
 Acts, 1873 and 1875. 
 
 " Criminal proceedings.' ' By s. 1 9 of this Act the Practice and Procedure 
 in criminal causes are to remain the same as before the commencement 
 of the Act, " subject to the first Schedule and any Rules of Court to be 
 made under this Act." It will be seen that as far as this Schedule is con- 
 cerned, the proviso is surplusage. 
 
 By s. 34 of the Principal Act criminal matters which would have been 
 within the exclusive jurisdiction of the Court of Queen's Bench in the 
 exercise of its original jurisdiction, if this Act had not passed, are assigned 
 to it. See the note to s. 45 of the Principal Act at p. 105. 
 
 Sections 92 and 93 of the Principal Act contain enactments relating to 
 the " Revenue side of the Court of Exchequer." 
 
 By s. 18 of this Act it is provided, that the Rules and Orders of Court 
 in force at the time of the commencement of this Act in the Court for 
 TJivorce and Matrimonial Causes shall remain in force, except so far as 
 they are expressly varied by the first Schedule or by Rules of Court made 
 before the commencement of the Act. As far as the first Schedule is con- 
 cerned, the exception ia surplusage. 
 
 ORDER LXHI. 
 INTERPRETATION OF TERMS. 
 
 The provisions of the 100th section of the Act shall 
 apply to these Rules. 
 
 In the construction of these Rules, unless there is any-
 
 RULES OP COURT. 539 
 
 thing in the subject 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 probate or 
 of letters of administration other than common form 
 business. 
 
 " Proper officer " shall, unless and until any Rule 
 to the contrary is made, mean an officer to be ascer- 
 tained as follows : 
 
 (a.) Where any duty to be discharged under the 
 Act or these rules is a duty which has heretofore 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 dis- 
 charged analogous duties, as may from time 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 respec- 
 tively mean THE SUPREME COURT OF JUDICATURE 
 
 ACT, 1873, AS AMENDED BY THIS AcT. 
 
 This is Order LVII of the Rules of Court, drawn up, in 1874, under 
 the Principal Act. 
 
 As to the "proper officer," see pp. 293, 294, 296, 299, 301, 316, 404, 
 444, 462, 464, 487, &c.
 
 540 FORMS flJfDER THE SUPREME 
 
 APPENDIX (A.) 
 
 " Appendix (A) " in the above Eules corresponds to " Schedule 
 (A)" in the Eules of Court drawn up in 1 874 under the Principal 
 Act. 
 
 PART I. 
 
 FORMS OF WRITS OF SUMMONS, &c. 
 
 The learning upon this subject under the old law will be found 
 in Day's Common Law Procedure Acts, Lush's Practice of 
 the Superior Courts of Law at Westminster, and Archbold's 
 Practice. 
 
 Xo. 1. 
 
 187 . [Here put the letter and number.] 
 
 In the High Court of Justice. Between A.B. Plaintiff, 
 
 Division. and 
 
 C.D. and KF. Defendants. 
 VICTORIA, by the Grace of God, $c. 
 
 To C.D., of in the county of and KF., of 
 
 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 Division of our High Court 
 
 of Justice 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, $c. 
 Memorandum to be subscribed on the writ. 
 
 N.B. This writ 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 afterwards. 
 The defendant [or defendants] may appear hereto by entering an 
 appearance [or appearances'] either personally or by solicitor at 
 the [ ] office at 
 
 Indorsements to be made on the writ before istue thereof. 
 The plaintiff's claim is for, $c. 
 
 This writ was issued by KF., of solicitor for the said 
 
 plaintiff, WHO RESIDES AT , or, this writ was issued 
 
 by the plaintiff in person who resides at [mention
 
 COURT OF JUDICATURE ACTS, 1873 AND 1875. 541 
 
 the city, town, or parish, and also the name of the street and number of 
 the house of the plaintiff's residence, if any}. 
 
 Indorsement to be made on the writ after service thereof. 
 
 This writ was served by X. Y. on L. M. [the defendant or one of the 
 defendants], on Monday, the day of , 18 . 
 
 (signed) X.Y. 
 
 This is Form No. 1 of Part I. of Schedule (A) to the Rules 
 of Court drawn up in 1874, under the Judicature Acts. This 
 form illustrates Order II., Rule 3, of the present Act, p. 278, 
 supra. See as to the Teste, p. 480. As to the plaintiff's 
 address, seep. 290. As to renewal, see p. 302. 
 
 No. 2. 
 
 Writ for service out of the jurisdiction, or where notice in lieu of service 
 is to be given out of the jurisdiction. 
 
 187 . [Here put the letter and number. ,] 
 
 In the High Court of Justice. Between A.B. Plaintiff, 
 
 Division. and 
 
 C.It, and E.F. Defendants. 
 VICTORIA, by the grace of God, $c. 
 To C.D., of 
 
 We command you, C.D., That within [here insert the number of days 
 DIRECTED MY THE COURT OR JUDGE ordering the service or notice^ after the 
 service of this writ [or notice of this writ as the case may be~\ on you, 
 inclusive of the day of such service, you do cause an appearance to be 
 entered for you in the Division of Our High Court of 
 
 Justice in an action at the suit of A.B. ; and take notice, that in default 
 of your so doing, the plaintiff may, BY LEAVE of the Court or a Judge, 
 PROCEED therein, and judgment may be given in your absence. Witness, 
 
 I* 
 
 Memoranda and Indorsements as in Form No. 1. 
 Indorsement to be made on the ivrit before the issue thereof. 
 N.B. This writ is to be used where the Defendant or all the Defendants 
 or one or more Defendant or Defendants is or are out of the jurisdiction. 
 
 This is Form No. 2 of Part I. of Schedule (A) of the Rules 
 of Court drawn up in 1874 under the Principal Act. This form 
 illustrates Order II, Rule 5 of the present Act, p. 279, supra. 
 As to leave to serve this Writ, see pp. 279, 312. As to 
 directing time of appearance, see p. 314. As to leave to pro- 
 ceed,'see"p. 325.
 
 542 FORMS UNDER THE SUPREME 
 
 No. 3. 
 Notice of Writ in lieu of service to be given out of the jurisdiction. 
 
 187 \_Here put the Utter and number. ~\ 
 Between A.B. Plaintiff, 
 
 and 
 
 C.D., E.F., and G.H. Defendants. 
 To G.H., of 
 
 Take notice, that A.B., of has commenced an action 
 
 against you, G.H., in the Division of Her Majesty's High 
 
 Court of Justice in England, by writ of that Court, dated the day 
 
 of , A.D. 18 ; which writ is endorsed as follows [copy in full 
 
 the indorsements], and yon are required within days after the 
 
 receipt of this notice, inclusive of the day of such receipt, to defend the 
 said action, by causing an appearance to be entered for you in the said 
 Court to the said action; and in default of your so doing, the said A.B. 
 may, BY LEAVE of the Court or a Judge, proceed therein, and judgment 
 may be given in your absence. 
 
 You may appear to the said writ by entering an appearance personally 
 or by your solicitor at the [ ] office at 
 
 (signed) A.B. of $c. 
 
 or 
 X.T. of $c. 
 
 Solicitor for A.B. 
 In the High Court of Justice. 
 
 Division. 
 
 This is Form No. 3 of Part I of Schedule (A) to the Rules 
 of Court drawn up in 1874 under the Principal Act. 
 
 This notice illustrates Order II, Rule 5 of the present Act, 
 p. 279, supra. As to leave to proceed, see p, 325. 
 
 No. 4. 
 Writ in Admiralty action in rem. 
 
 187 . [Here put the letter and number.'] 
 
 In the High Court of Justice. 
 Adniralty Division. 
 
 Between A.B., plaintiff 
 
 and 
 
 Owners. 
 VICTORIA, $e. 
 
 To THE OWNERS AND PARTIES INTERESTED in the ship or vessel [Mary] 
 [or cargo, $c., as the case may be] of the port of 
 
 We hereby authorise officer of Our Supreme Court, and 
 
 and singular his substitutes, to arrest the ship or vessel [Mary], of the
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 543 
 
 port of and the cargo laden therein [or cargo, $e., as the case 
 
 may be], and to keep the same under safe arrest until he shall receive 
 further orders from Us. And We command YOU, THE OWNERS AND OTHER 
 PARTIES INTERESTED in the said ship and cargo [or cargo, $c., as the case may 
 be] that within EIGHT days after the arrest of the said vessel [or cargo, $c., 
 as the case may be] you do cause an appearance to be entered for you in the 
 Admiralty Division of Our High Court of Justice in an action at the suit 
 of A.B.; and take notice that, in default of your so doing, Our said Court 
 will proceed to hear the said action and to pronounce judgment therein, 
 your absence notwithstanding. 
 
 This is Form No. 4 of Part I of Schedule (A) to the Rules of 
 Court drawn up in 1874 under the Principal Act. 
 
 This form illustrates Order II, Rule 7 of the present Act, 
 p. 283, supra. See the note to that Order, p. 283, and also 
 Part II, s. 6. 
 
 No. 5. 
 
 Form of Memorandum for Eeneived Writ. 
 In the High Court of Justice. 
 Division. 
 
 Between A.B., plaintiff, 
 
 and 
 
 C.D., defendant. 
 
 Seal renewed writ of summons in this action indorsed as follows : 
 [Copy original icrit and the indorsements.'] 
 
 This is Form No. 5 of Part I of Schedule (A) to the Rules of 
 Court drawnjip in 1874 under the Principal Act. 
 
 This form illustrates Order VIII, Rule 1 of the present Act, 
 p. 301, supra. 
 
 No. 6. 
 Memorandum of Appearance. 
 
 187 . [Here put the letter and number.'] 
 High Court of Justice. 
 [Chancery] Division. 
 
 A.B., v. C'.D., and others. 
 ENTER an appearance for 
 in this action. 
 Dated this day of 
 
 X.Y., 
 
 Solicitor for the defendant. 
 The place of business of X. T. is
 
 544 FORMS UNDER THE SUPREME 
 
 His ADDRESS FOR SERVICE is 
 
 or [C.D., 
 
 Defendant in person. 
 
 The address of C.D. is 
 
 His address for service is .] 
 
 The said DEFENDANT [REQUIRES, or, DOES NOT REQUIRE] A STATEMENT OF 
 COMPLAINT to be filed and delivered. 
 
 This is Form No. 6 of Part I of Schedule (A) to the Rules of 
 Court drawn up in 1874 under the Principal Act. 
 
 This form illustrates Order XII, Rules 6 to 10 of the present 
 Act, pp. 316-318, supra. As to the requirements of a statement 
 of complaint, see pp. 355, 374 and 377. 
 
 No. 7. 
 
 [Here put the letter and number.'] 
 In the High Court of Justice. 
 
 Queen's Bench (or Chancery, C. P., or, &c.) Division. 
 Between A.B., plaintiff, 
 
 and 
 
 C.D., and 
 E.F., defendants. 
 
 The defendant, C.D., limits his defence to part only of the property 
 mentioned in the writ in this action, that is to say, to the close called 
 "the Big Field." 
 
 Yours, &c., 
 
 G.H., 
 
 Solicitor for the said defendant, C.D. 
 To Mr. X.T., plaintiff's solicitor. 
 
 This is Form No. 7 of Part I of Schedule (A) to the Rules 
 of Court drawn up in 1874 under the Principal Act. 
 
 This Form illustrates Order XII, Rules 21 and 22 of the 
 present Act, pp. 322-3, supra. 
 
 PART II. 
 See Order III, Rule 3, p. 285. 
 
 SECTION I. 
 
 GENERAL INDORSEMENTS. 
 
 In Matters assigned by the Zlth Section of the Act to the Chancery 
 Division, (p. 83). 
 
 The 34th Section of the Principal Act assigns to the Chancery 
 Division of the High Court all causes and matters pending in 
 the Court of Chancery at the commencement of the Act ; all
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 545 
 
 causes and matters to be commenced after the commencement of 
 the Act under any Act of Parliament by which exclusive juris- 
 diction in respect to such causes or matters has been given to 
 the Court of Chancery or to any Judges or Judge thereof re- 
 spectively, except Appeals from County Courts ; all causes and 
 matters for any of the following purposes : the administration 
 of the estates of deceased persons ; the dissolution of partnerships, 
 or the taking of partnership or other accounts ; the redemption 
 or foreclosure of mortgages, the raising of portions or other 
 charges on land ; the sale and distribution of the proceeds of 
 property subject to any lien or charge ; the execution 
 of trusts, charitable or private ; the rectification or setting 
 aside or cancellation of deeds and other written instruments ; 
 the specific performance of contracts between vendors and pur- 
 chasers of real estates including contracts for leases; the 
 partition or sale of real estates ; the wardship of infants and the 
 care of infants' estates. It will be perceived that the forms of 
 indorsements are not intended to be an exhaustive list, but 
 merely specimens, several of the items of the above list of 
 subjects receiving no illustration whatever from these forms. 
 
 1. Creditor to administer Estate. 
 
 The plaintiff's claim is as a creditor of X.Y., of deceased, 
 
 to have the [real and] personal estate of the said X.Y. adminstered. The 
 defendant C.D., is sued as the administrator of the said X. Y. [and the 
 defendants E. F. and G.H. as his co-heirs-at-law]. 
 
 2. Legatee to administer Estate. 
 
 The plaintiff's claim is as a legatee under the will dated the day 
 
 of 18 , of X.Y. deceased, to have the [real and] personal 
 
 estate of the said X. Y. administered. The defendant C.D. is sued as the 
 executor of the said XT'. [and the defendants E.F. and G.H. as his 
 devisees]. 
 
 3. Partnership. 
 
 The plaintiff's claim is to have an account taken of the partnership 
 dealings between the plaintiff and defendant [under articles of partnership 
 dated the day of ], and to have the affairs of the 
 
 partnership wound up. 
 
 4. By Mortgaget. 
 
 The plaintiff's claim is to have an account taken of what is due to him 
 for principal, interest, and costs on a mortgage dated the day of 
 
 35
 
 546 FORMS UNDER THE SUPREME 
 
 , made between [or by deposit of 
 
 title deeds], and that the mortgage may be enforced by foreclosure or 
 sale. 
 
 5. J9t) Mortgagor. 
 
 The plaintiff's claim is to have an account taken of -what, if anything, 
 is due on a mortgage dated and made between 
 
 [parties'], and to redeem the property comprised therein. 
 
 6. Raising Portions. 
 
 The plaintiff's claim is that a sum of I., which by an indenture 
 
 of settlement dated , was provided for the portions of the 
 
 younger children of may be raised. 
 
 7. Execution of Trusts. 
 The plaintiff's claim is to have the trusts of an indenture dated 
 
 , and made between , carried into execution, 
 
 8. Cancellation or Rectification. 
 
 The plaintiffs claim is to have a deed dated , and made 
 
 between [parties'], set aside or rectified. 
 
 9. Specific Performance. 
 
 The plaintiffs claim is for specific performance of an agreement dated 
 . the day of , for the sale by the plaintiff to the 
 
 defendant of certain [freehold] hereditaments at 
 
 This is Section I of part 2 of Schedule (A) to the Rules of 
 Court drawn up in 1874 under the Principal Act. 
 
 SECTION II. 
 
 Money Claim* where no Special Indorsement under Order III, Rule 6, 
 (p. 278.) 
 
 Order III. Rule 6," is substituted for "Rule 7 in Schedule 
 to Act," in order to adapt the forms to the present Act. 
 
 Goods sold. The plaintiff's claim is /. for the price of goods sold. 
 
 [This form shall suffice whether the claim be in respect of 
 goods sold and delivered, or of goods bargained and sold.'] 
 
 Money lent. The plaintiff's claim is I. for money lent [and interest], 
 
 Several de- The plaintiff's claim is I., whereof I. is for the price 
 
 mands. O f g 00 ds sold, and I. for money lent, and I. for interest. 
 
 Rent. The plaintiff's claim is I. for arrears of rent. 
 
 Salary, Ac. The plaintiff's claim is I. for arrears of salary as a clerk 
 
 [or at the ease may be], 
 
 Interest. The plaintiff's claim is I. for interest upon money lent. 
 
 Generalavorage. The plaintiff's claim is I. for a general average contri- 
 bution.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 547 
 
 The plaintiff's claim is I. for freight and demurrage. Freight, &c. 
 
 The plaintiff's claim is I. for lighterage. 
 
 The plaintiff's claim is I. for market tolls and stallage. Tolls. 
 
 The plaintiff's claim is I. for penalties under the statute Penalties. 
 
 :...]. 
 
 The plaintiff's claim is 1. for money deposited with the Banker's 
 <lefendant as a banker. 
 
 The plaintiff's claim is 1. for fees for work done [and I., Fees, &c., as 
 
 ,. .. solicitors. 
 
 money expended] as a solicitor. 
 
 The plaintiff's claim is I, for commission earned as [state Commission. 
 character, as auctioneer, cotton broker, $c.~\ 
 
 The plaintiff's claim is I. for medical attendances. Medical attend- 
 
 ance, &c. 
 The plaintiff's claim is I. for a return of premiums paid Return of pre- 
 
 upon policies of insurance. tun 
 
 The plaintiff's claim is I. for the warehousing of goods. Warehouse rent. 
 
 The plaintiff's claim is 1. for the carriage of goods by Carriage of 
 
 railway. e ods - 
 
 The plaintiff's claim is I. for the use and occupation of a Use and occupa- 
 tion of houses. 
 house. 
 
 The plaintiff's claim is I. for the hire of [furniture]. Hire of godo. 
 
 The plaintiffs claim is I. for work done as a surveyor. Work done. 
 
 The plaintiff's claim is 1. for board and lodging. Board and lodg- 
 
 The plaintiff's claim is 1. for the board, lodging, and 
 tuition of X. Y. 
 
 The plaintiff's claim is I. for money received by tho de- Money re- 
 fondant as solicitor [or factor, or collector, or, $c.] of the plain- 
 tiff. 
 
 The plaintiff's claim is I. for fees received by the defen- Fees of office, 
 dant under colour of the office of 
 
 The plaintiff's claim is I. for a return of money over- Money over- 
 charged for the carriage of goods by railway. 
 
 The plaintiff's claim is I. for a return of fees overcharged 
 by the defendant as 
 
 The plaintiff's claim is I. for a return of money deposited j^f 1 b y 
 with the defendant as stakeholder. stakeholder 
 
 The plaintiff's claim is I. for money intrusted to the Money won 
 defendant as stakeholder, and becom* payable to plaintiff. holder. 
 
 The plaintiff's claim is I. for a return of money intrusted Money intrusted 
 to the defendant as agent of the plaintiff. 
 
 The plaintiff's claim is I. for a return of money obtained M ey obtained 
 from the plaintiff by fraud. 
 
 The plaintiff's claim is 1. for a return of monev paid to Miney paid by 
 , , ,, , , , ... mutake. 
 
 he defendant bv mistake.
 
 548 
 
 FORMS UNDER THE SUPREME 
 
 Money paid for 
 consideration 
 which has 
 failed. 
 
 Money paid by 
 surety for 
 defendant. 
 
 Rent paid. 
 
 Money paid on 
 accommodation 
 bill. 
 
 Contribution by 
 surety. 
 
 By co-debtor. 
 
 Money paid for 
 calls. 
 
 Money payable 
 under award. 
 
 Life policy. 
 Money bond. 
 
 Foreign Judg- 
 ment. 
 
 Bills of ex- 
 change, &c. 
 
 /. for money paid for rent due by 
 
 Surety. 
 
 Del credere 
 agent. 
 
 The plaintiffs claim is I. for a return of money paid to 
 the defendant for [work to be done, left undone ; or, a bill to be 
 taken up, not taken up ; or, e.] 
 
 The plaintiff's claim is I. for a return of money paid as a 
 deposit upon shares to be allotted. 
 
 The plaintiffs claim is /. for money paid for the defen- 
 dant as his surety. 
 
 The plaintiffs claim is 
 the defendant. 
 
 The plaintiffs claim is /. upon a bill of exchange accepted 
 [or indorsed] for the defendant's accommodation. 
 
 The plaintiffs claim is 1. for a contribution in respect of 
 money paid by the plaintiff as surety. 
 
 The plaintiffs claim is I. for a contribution in respect of 
 a joint debt of the plaintiff and the defendant, paid by the 
 plaintiff. 
 
 The plaintiffs claim is /. for money paid for calls upon 
 shares, against which the defendant was bound to indemnify 
 the plaintiff. 
 
 The plaintiffs claim is I. for money payable under an 
 award. 
 
 The plaintiffs claim is 
 the life of X. Y., deceased. 
 
 The plaintiffs claim is 
 of 1,000, and interest. 
 
 The plaintiffs claim is I. upon a judgment of the 
 Court, in the Empire of Kussia. 
 
 The plaintiffs claim is /. upon a cheque drawn by the 
 defendant. 
 
 The plaintiffs claim is /. upon a bill of exchange accepted 
 [or drawn or indorsed] by the defendant. 
 
 The plaintiffs claim is I. upon a promissory note made 
 [or indorsed] by the defendant. 
 
 The plaintiffs claim is /. against the defendant A. B. as 
 acceptor, and against the defendant C. D. as drawer [or indorscr] 
 of a bill of exchange. 
 
 The plaintiffs claim is /. against the defendant as surety 
 for the price of goods sold. 
 
 The plaintiffs claim is /. against the defendant A. B. as 
 principal, and against the defendant C. D. as surety, for the 
 price of goods sold [or arreart of rent, or for money lent, or for 
 money received by the defendant A. B. as traveller for the plaintiff , 
 or, $0.]. 
 
 The plaintiffs claim is I. against the defendant as a del 
 
 I. upon a policy of insurance upon 
 I. upon a bond to secure payment
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 549 
 
 credere agent for the price of goods sold [or as losses under a 
 policy'}. 
 
 The plaintiff's claim is I. for calls upon shares. Calls. 
 
 The plaintiff's claim is /. for crops, tillage, manure [or Waygoing 
 as the case may be~] left by the defendant as outgoing tenant of cr P 8 &c - 
 a farm. 
 
 This is Section I. of Part 2 of Schedule (A) to the Rules 
 of Court drawn up in 1874 under the Principal Act. 
 
 SECTION III. 
 Indorsement for Costs, $c. [add to the above Forms']. 
 
 And I. for costs ; and if the amount claimed be 
 
 paid to the plaintiff or his solicitor within four days [or if the 
 writ is to be served out of the jurisdiction, or notice in lieu of service 
 alloiced, insert the time for appearance limited by the order] from 
 the service hereof, further proceedings will be stayed. 
 
 This is Section III. of Part 2 of Schedule (A) to the Rules of 
 Court drawn up in 1874 under the Principal Act. 
 
 It has reference to Order III. Rule 7 of the present Act, 
 p. 287, supra. As to order limiting time, see p. 314. 
 
 SECTION IV. 
 
 Damages and other Claims (pp. 284 and 328). 
 
 The plaintiff's claim is for damages for breach of a contract to Agent, &c. 
 employ the plaintiff as traveller. 
 
 The plaintiff's claim is for damages for wrongful dismissal 
 from the defendant's employment as traveller [and I. for 
 
 arrears of wages'], 
 
 The plaintiff's claim is for damages for the defendant's wrong- 
 fully quitting the plaintiff's employment as manager. 
 
 The plaintiff's claim is for damages for breach of duty as 
 factor [or, $c.] of the plaintiff [and I. for money received as 
 
 factor, c.]. 
 
 The plaintiff's claim is for damages for breach of the terms Apprentices. 
 of a deed of apprenticeship of X. T. to the defendant [or 
 plaintiff]. 
 
 The plaintiff's claim is for damages for non-compliance with Arbitration, 
 the award of X. Y. 
 
 The plaintiff's claim is for damages for assault [and false im- Assault, ic. 
 prisonmcnt, and for malicious prosecution]. 
 
 The plaintiff's claim is for damages for assault and false im- By husband and 
 prisonment of the plaintiff C. J). wife -
 
 550 
 
 FORMS UNDER THE SUPREME 
 
 Against hus- 
 band and wife. 
 
 Solicitor. ' 
 
 Bailment. 
 
 Pledge. 
 
 Hire. 
 
 Banker. 
 Bill. 
 Bond. 
 Carrier. 
 
 Charter-party. 
 
 Claim for 
 return of goods 
 damages. 
 Damages for 
 depriving of 
 
 Defamation. 
 
 Distress. 
 Replevin. 
 
 Wrongful 
 distress. 
 
 Ejectment. 
 
 The plaintiffs claim is for damages for assault Ly the defen- 
 dant C. D. 
 
 The plaintiff's claim is for damages for injury by the defen- 
 dant's negligence as solicitor of the plaintiff. 
 
 The pLuntiffs claim is for damages for negligence in the 
 custody of goods [and for wrongfully detaining the same]. 
 
 The plaintiff's claim is for damages for negligence in the 
 keeping of goods pawned [and for wrongfully detaining the same]. 
 
 The plaintiff's claim is for damages for negligence in the 
 custody of furniture lent on hire [or a carriage lent], [and for 
 wrongfully, $e.~\. 
 
 The plaintiff's claim is for damages for wrongfully neglecting 
 [or refusing'] to pay the plaintiff's cheque. 
 
 The plaintiff's claim is for damages for breach of a contract 
 to accept the plaintiff's drafts. 
 
 The plaintiff's claim is upon a bond conditioned not to carry 
 on the trade of a 
 
 The plaintiff's claim is for damages for refusing to carry the 
 plaintiff's goods by railway. 
 
 The plaintiff's claim is for damages for refusing to carry tho 
 plaintiff by railway. ' 
 
 The plaintiff's claim is for damages for breach of duty in and 
 about the carriage and delivery of coals by railway. 
 
 The plaintiff's claim is for damages for breach of duty in and 
 about the carriage and delivery of machinery by sea. 
 
 The plaintiff's claim is for damages for breach of charter- 
 party of ship [Mary]. 
 
 The plaintiff's claim is for return of household furniture, 
 or, &c., or their value, and for damages for detaining the same. 
 
 The plaintiff's claim is for wrongfully depriving plaintiff of 
 goods, household furniture, &c. 
 
 The plaintiff's claim is for damages for libel. 
 
 The plaintiff's claim is for damages for slander. 
 
 The plaintiff's claim is in replevin for goods wrongfully dis- 
 trained. 
 
 The plaintiff's claim is for damages for improperly dis- 
 training. 
 
 [This Form shall be sufficient whether the distress complained of 
 
 &* wrongful, or excessive, or irregular, and whether the claim bo 
 
 for damages only, or for double value.'] 
 
 The plaintiff s claim is to recover possession of a house, No. 
 in street, or of a farm called Blackacre, situate in 
 
 the parish of , in the county of
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 551 
 
 The plaintiff's claim is to establish, his title to [here describe T establish 
 
 title ad recover 
 property], and to recover the rents thereof. rents. 
 
 [The tivo previous forms may be combined.] 
 
 The plaintiff's claim is for dower. Dower. 
 
 The plaintiff's claim is for damages for infringement of the Fishery, 
 plaintiff's right of fishing. 
 
 The plaintiff's claim is for damages for fraudulent misrepre- Fraud, 
 sentation on the sale of a horse [or a business, or shares, or, $c.]. 
 
 The plaintiff's claim is for damages for fraudulent misrepre- 
 sentation of the credit of A. B. 
 
 The plaintiff's claim is for damages for breach of a contract Guarantee. 
 of guarantee for A. B. 
 
 The plaintiff's claim is for damages for breach of a contract 
 to indemnify the plaintiff as the defendant's agent to distrain. 
 
 The plaintiff's claim is for a loss under a policy upon the Insurance. 
 ship " Eoyal Charter," and freight or cargo [or for return of 
 premiums]. 
 
 \_Thisform shall be sufficient whether the loss claimed be total 
 or partial.] 
 
 The plaintiff's claim is for a loss under a policy of fire in- F^ 6 insurance, 
 surance upon house and furniture. 
 
 The plaintiff's claim is for damages for breach of a contract 
 to insure a house. 
 
 The plaintiffs claim is for damages for breach of contract to Landlord and 
 keep a house in repair. aan 
 
 The plaintiff's claim is for damages for breaches of covenants 
 contained in a lease of a farm. 
 
 The plaintiff's claim is for damages for injury to the plaintiff Medical man. 
 from the defendant's negligence as a medical man. 
 
 The plaintiff's claim is for damages for injury by the defen- Mischievous 
 dant's dog. 
 
 The plaintiff's claim is for damages for injury to the plaintiff Negligence 
 [or, if by husband and wife, to the plaintiff, C. D.] by the negli- 
 gent driving of the defendant or his servants. 
 
 The plaintiff's claim is for damages for injury to the plaintiff 
 while a passenger on the defendant's railway by the negligence 
 of the defendant's servants. 
 
 The plaintiff's claim is for damages for injury to the plaintiff 
 at the defendant's railway station, from the defective condition 
 of the station. 
 
 The plaintiffs claim is as executor of A. B., deceased, for Lord Camp- 
 damages for the death of the said A. B., from injuries received bell ' s Act 
 while a passenger on the defendant's railway, by the negligence 
 of the defendant's servants.
 
 652 
 
 FORMS UNDER THE SUPREME 
 
 Promise of 
 marriage. 
 
 Quare impedit. 
 Seduction. 
 
 Sale of goods. 
 
 Sale of land. 
 
 Trespass to 
 land. 
 
 Support. 
 Way. 
 
 Watercourse 
 Ac. 
 
 Pasture. 
 
 The plaintiff's claim is for damages for breach of promise of 
 marriage. 
 
 The plaintiffs claim is in quare impedit for 
 
 The plaintiffs claim is for damages for the seduction of the 
 plaintiffs daughter. 
 
 The plaintiffs claim is for damages for breach of contract to 
 accept and pay for goods. 
 
 The plaintiffs claim is for damages for non-delivery [or 
 short delivery or defective quality, or other breach of contract of 
 sale] of cotton [or, $c.~\, 
 
 The plaintiffs claim is for damages for breach of warranty 
 of a horse. 
 
 The plaintiffs claim is for damages for breach of a contract 
 to sell [or purchase] land. 
 
 The plaintiff's claim is for damages for breach of a contract 
 to let [or take] a house. 
 
 The plaintiffs claim is for damages for breach of a contract 
 to sell [or purchase] the lease, with goodwill, fixtures, and stock 
 in trade of a public-house. 
 
 The plaintiffs claim is for damages for breach of covenant 
 for title [or for quiet enjoyment, or, $c.~\ in a conveyance of 
 land. 
 
 The plaintiffs claim is for damages for wrongfully entering 
 the plaintiffs land and drawing water from his well [or cutting 
 his grass, or pulling down his timber, or pulling down his fences, 
 or removing his gate, or using his road or path, or crossing his 
 field, or depositing sand there, or carrying away gravel from thence, 
 or carrying away stones from his river], 
 
 The plaintiffs claim is for damages for wrongfully taking 
 away the support of plaintiff's land [or house, or mine], 
 
 The plaintiffs claim is for damages for wrongfully obstruct- 
 ing a way [public highway or a private way]. 
 
 The plaintiffs claim is for damages for wrongfully diverting 
 [or obstructing, or polluting, or diverting water from~\ a water- 
 course. 
 
 The plaintiffs claim is for damages for wrongfully dis- 
 charging water upon the plaintiffs land [or into the plaintiff's 
 mine], 
 
 The plaintiffs claim is for damages for wrongfully obstruct- 
 ing the plaintiffs use of a well. 
 
 The plaintiffs claim is for damages for the infringement of 
 the plaintiffs right of pasture. 
 
 [This form shall be sufficient whatever the nature of the right to 
 pasture be.]
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 553 
 
 The plaintiff's claim is for damages for obstructing the Light, 
 access of light to plaintiff's house. 
 
 The plaintiff's claim is for damages for the infringement of Sporting, 
 the plaintiff's right of sporting. 
 
 The plaintiff's claim is for damages for the infringement of Patent, 
 the plaintiffs patent. 
 
 The plaintiff's claim is for damages for the infringement of Copyright. 
 the plaintiff's copyright. 
 
 The plaintiff's claim is for damages for wrongfully using [or Trade Mark. 
 imitating] the plaintiff's trade mark. 
 
 The plaintiff's claim is for damages for breach of a contract Work. 
 to build a ship [or to repair a house, c.]. 
 
 The plaintiff's claim is for damages for breach of a contract 
 to employ the plaintiff to build a ship, $c. 
 
 The plaintiff's claim is for damages to his house, trees, crops, Nuisance. 
 &c., caused by noxious vapours from the defendant's factory 
 [or, $c.]. 
 
 The plaintiff's claim is for damages from nuisances by noise 
 from the defendant's works [or Stables, or, #e.]. 
 
 The plaintiff's claim is for damages for loss of the plaintiff's Innkeeper, 
 goods in the defendant's iri-n. 
 
 Add to Indorsement : 
 
 And for a mandamus. Mandamus. 
 
 Add to Indorsement : 
 
 And for an injunction. Injunction. 
 
 Add to Indorsement where claim is to land or to establish title, 
 or both. 
 
 And for mesne profits. ilesne profits. 
 
 And for an account of rents or arrears of rent. Arrears of rent. 
 
 And for breach of covenant for [repairs']. Breach of 
 
 covenant. 
 
 This is Section IT. of Part 2 of Schedule (A) to the Eules of 
 Court drawn up in 1874 under the Principal Act. 
 
 SECTION V. 
 Probate. 
 
 1. By an executor or legatee propounding a will in solemn form. 
 The plaintiff claims to be executor of the last will, dated the 
 
 day of , of C. W., late of 
 
 gentleman, deceased, who died on the day of 
 
 and to have the said will established. This writ is issued against you as 
 
 one of the next of kin of the said deceased [or as the case may be]. 
 
 2. yan executor or legatee of a former will, or a next of kin, $c., of the 
 deceased, seeking to obtain the revocation of a probate granted in common 
 
 f*rm.
 
 554 FOKMS UNDER THE SUPREME 
 
 The plaintiff claims to be executor of the last will, dated the 
 day of of G. 3., late of 
 
 gentleman, deceased, who died on the day of 
 
 and to have the probate of a pretended will of the said deceased, dated 
 the day of , revoked. This writ 
 
 is issued against you as the executor of the said pretended will [or as the 
 cote may be]. 
 
 3. By an executor or legatee of a will when letters of administration have 
 bten granted as in an intestacy. 
 
 The plaintiff claims to be executor of the last will of C. D., late of 
 gentleman, deceased, who died on the day of 
 
 dated the day of 
 
 The plaintiff claims that the grant of letters of administration of the 
 personal estate of the said deceased obtained by you should be revoked, 
 and probate of the said will granted to him. 
 
 4. By a person claiming a grant of administration as a next of kin of the 
 deceased, but whose interest as next of kin is disputed. 
 
 The plaintiff claims to be the brother and sole next of kin of 0. D., of 
 , gentleman, deceased, who died on the day 
 
 of , intestate, and to have as such a grant of administra- 
 
 tion to the personal estate of the said intestate. This writ is issued 
 against you because you have entered a caveat, and have alleged that you 
 are the sole next of kin of the deceased [or as the case may be], 
 
 This is Section V. of Part 2 of Schedule A) to the Rules of 
 Court drawn up in 1874 under the Principal Act. 
 See Order III, Eule 5, p. 286. 
 
 (ff.) SECTION VI. 
 Admiralty. 
 
 1. Damage to vessel by collision. 
 
 The plaintiffs, as owners of the vessel " Mary," of the port of 
 claim 1,OOOZ. against the brig or vessel " Jane," for damage occasioned by 
 a collision which took place in the Xorth Sea in the month of May last. 
 
 2. Damage to cargo by collision. 
 
 The plaintiffs, as owners of the cargo laden on board the vessel 
 " Mary," of the port of , claim I. against the vessel 
 
 " Jane," for damage done to the said cargo in a collision in the Xorth Sea 
 in the month of May last. 
 
 [The two previous forms may be combined.] 
 
 3. Damage to cargo otherwise. 
 
 The plaintiff, as owner of goods laden on board the vessel " Mary," on 
 a voyage from Lisbon to England, claims from the owner of the said 
 vessel /., for damage done to the said goods during such voyage. 
 
 4. In causes of possession. 
 
 The plaintiff, as sole owner of the vessel "Mary," of the port of
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 555 
 
 , claims to have possession decreed to him of the said 
 vessel. 
 
 5. The plaintiff claims possession of the vessel " Mary," of the port of 
 
 , as owner of 48-64th shares of the said vessel against C. D. 
 owner of 16-64th shares of the said vessel. 
 
 6. The plaintiff, as part owner of the vessel " Mary," claims against 
 G. D., part owner, and his shares in the said vessel /., as part of the 
 earnings of the said vessel due to plaintiff. 
 
 7. The plaintiff, as owner of 48-64th shares of the vessel " Mary," of 
 the port of , claims possession of the said brig as against C. D., 
 the master thereof. 
 
 8. The plaintiff, under .a mortgage, dated the day of 
 
 claims against the vessel " Mary," I., being the amount of his 
 
 mortgage thereon, and I. for interest. 
 
 9. The plaintiff, as assignee of a bottomry bond, dated the 
 
 day of , and granted by C. D,, as master of the vessel " Mary," 
 
 of the port of , to A. ., at St. Thomas's, in the "West Indies, 
 
 claims I. against the vessel " Mary," and the cargo laden 
 
 thereon. 
 
 10. By a part owner of a vessel. 
 
 The plaintiff, as owner of 24-64th shares of the vessel "Mary," being 
 dissatisfied with the management of the said vessel by his co-owners 
 claims that his co-owners shall give him a bond in L, for the 
 
 value of the plaintiff's said shares in the said vessel. 
 
 11. The plaintiffs, as owners of the derelict vessel "Mary," of the port 
 of , claim to be put in possession of the said vessel and her 
 cargo. 
 
 12. By salvors. 
 
 The plaintiffs, as the owners, master and crew of the vessel " Caroline," 
 of the port of , claim the sum of /., for salvage 
 
 services performed by them to the vessel "Mary," off the Goodwin Sands, 
 on the day of 
 
 13. Claim for towaye. 
 
 The plaintiffs, as owners of the steam-tug " Jane,'' of the port of 
 , claim I. , for towage services performed by the 
 
 said steam-tug to the vessel " Mary," on the day of 
 
 14. Seamen's wages. 
 
 The plaintiffs, as seamen on board the vessel " Mary," claim I., 
 
 for wages due to them, as follows (1), the mate 30J. for two months' 
 wages from the day of 
 
 15. For necessaries. 
 
 The plaintiffs claim L, for necessaries supplied to the vessel 
 
 " Mary," at the port of Newcastle-on-Tyne, delivered on the day 
 
 of and the day of
 
 556 
 
 FORMS UNDER THE SUPREME 
 
 This is Section VI. of Part 2 of Schedule (A) to the Eules of 
 Court drawn up in 1874 under the Principal Act. 
 See Part I, Section 4, supra. 
 
 SECTION VII. 
 
 Special Indorsements under Order III, Rule 6, p. 286. 
 1. The plaintiff's claim is for the price of goods sold. The following 
 are the particulars : 
 
 1873 31st December. . d. 
 
 Balance of account for butcher's meat to this date 35 10 - 
 1874 1st January to 31st March. 
 
 Butcher's meat supplied . . . . . . . . 74 5 - 
 
 1874 1st February. Paid. 
 
 Balance due 
 
 109 15 - 
 45 - - 
 
 64 15 - 
 
 2. The plaintiff's claim is against the defendant A. S. as principal, and 
 against the defendant C. D. as surety, for the price of goods sold to A.B. 
 The following are the particulars : 
 
 1874 2nd February. Guarantee by C. D. of the price of woollen goods 
 to be supplied to A. B. 
 
 2nd February To goods 
 3rd March To goods 
 17th March To goods 
 5th April To goods . . 
 
 s. d. 
 
 47 15 - 
 
 105 14 - 
 
 14 12 - 
 
 34 - - 
 
 202 1 - 
 
 3. The plaintiff's claim is against the defendant, as maker of a promis- 
 sory note. The following are the particulars : 
 
 Promissory note for 250/., dated 1st January, 1874, made by defendant, 
 payable four months after date. 
 
 
 Principal- - - - - - - 250 
 
 Interest ------- 
 
 4. The plaintiff's claim is against the defendant A.B. as acceptor, and 
 against the defendant C. D. as drawer, of a bill of exchange. The follow- 
 ing are the particulars : 
 
 Bill of exchange for 500, dated 1st January, 1874, drawn by defendant 
 C. D. upon and accepted by defendant A. IS., payable three months after 
 date. 
 
 
 
 Principal- .--.. 500 
 Interest -------
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 557 
 
 5. The plaintiff's claim is for principal and interest due upon a bond. 
 The following are the particulars : 
 
 Bond dated 1st January, 1873. Condition for payment of 100, on the 
 26th December, 1873. 
 
 
 
 Principal due - - - - 50 
 
 Interest ------- 
 
 6. The plaintiffs claim is for principal and interest due under a 
 covenant. 
 
 The following are the particulars : 
 
 Deed dated covenant to pay 100 and interest. 
 
 
 Principal due ------ 80 
 
 Interest ------- 
 
 This is Section VII of Part 2 of Schedule (A) to the Eules of 
 Court drawn up in 1874 under the Principal Act, the heading 
 " Special Indorsements undec Order III, Rule 6," being substi- 
 tuted for " Special Indorsements under Clause 7 of the Sche- 
 dule," in order to adapt the forms to the present Act. 
 
 SECTIOK VIII. 
 
 Indorsements of Character of Parties. 
 
 Executors > ^ ie plaintiffs claim is as executor [or administrator] of C. D., 
 
 deceased, for, $c. 
 
 The plaintiff's claim is against the defendant A. J3., as 
 executor [or, c.] of C. D., deceased, for, $c. 
 
 The plaintiffs claim is against the defendant A. ., as 
 executor of X. Y., 
 
 deceased, and against the defendant C. D., in his personal 
 capacity for, $c. 
 
 By husband and The claim of the plaintiff C. D. is as executrix of JSC. T. de- 
 w'ife, executrix. CQasc ^ an( i ^e claim of the plaintiff -4. ., as her husband, for 
 Against bus- Tb- e claim of the plaintiff is against the defendant C. D., as 
 
 hand and wife, executrix of the defendant C. D., deceased, and against the 
 executrix. 
 
 defendant A. B., as her husband for 
 
 The plaintiffs claim is as trustee under the bankruptcy o 
 
 Trustee in bank- A - -> for 
 
 mptcy. The plaintiffs claim is against the defendant as trustee- 
 
 under the bankruptcy of A. B., for 
 
 The plaintiff s claim is as [or the plaintiff* s claim is against the 
 
 Trustees defendant as\ trustee under the will of A. JB. [or under the settle- 
 
 ment upon the marriage of A. B. and X. Y. his wife], 
 
 Public officer. The plaintiff's claim is as public officer of the bank 
 
 for
 
 558 FORMS UNDER THE SUPREME 
 
 The plaintiff's claim is against the defendant as public officer 
 of the bank, for 
 
 The plaintiff's claim is against the defendant A, B. as princi- 
 pal, and against the defendant C. D. as public officer of the 
 bank, as surety, for 
 
 The plaintiffs claim is against the defendant as heir-at-law Heir and de- 
 of A. ., deceased. 
 
 The plaintiff's claim is against the defendant C. D. as heir- 
 at-law, and against the defendant JE. F. as devisee of lands under 
 the will of A. B. 
 
 The plaintiff's claim is as well for the Queen as for himself, Q 1 " ^^ action. 
 for 
 
 This is Section VIII of Part 2 of Schedule (A) to the Rules 
 of Court drawn up in 1874 under the Principal Act. 
 
 This Section illustrates Order III, Rule 4 of the present Act, 
 p. 286, supra. 
 
 APPENDIX (B). 
 
 The forms in this Appendix are identical with the forms con- 
 tained in Schedule (B) to the Rules of Court drawn up in 1874 
 under the Principal Act, with the addition of two new forms, 
 numbered, respectively, 15 and 16, at the end of the Appendix. 
 
 FORM 1. 
 Notice by Defendant to Third Party. 
 
 187 . [Here put the letter and number.] 
 
 Notice filed ,187 . 
 
 In the High Court. 
 
 Queen's Bench Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 To Mr. X. T. 
 
 Take notice that this action cas been brought by the plaintiff against 
 the defendant [as surety for M. N., upon a bond conditioned for payment 
 of 2,000 and interest to the plaintiff. 
 
 The defendant claims to be entitled to contribution from you to the 
 extent of one-half of any sum which the plaintiff may recover' against 
 him, on the ground that yon are [his co-surety under the said bond, or, also 
 surety for the said 3f. N., in respect of the said matter, under another bond 
 made by you in favour of the said plaintiff, dated the day of 
 
 , A.D. ] ]. 
 
 Or, [as acceptor of a bill of exchange for 500, dated tho
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 559 
 
 day of A.D. , drawn by you before and 
 
 accepted by the defendant, and payable three months after date. 
 
 The defendant claims to be indemnified by you against liability under 
 the said bill, on the ground that it was accepted for your accommoda- 
 tion.] 
 
 Or, [to recover damages for a breach of a contract for the sale and 
 delivery to the plaintiff of 1,000 tons of coal. v 
 
 The defendant claims to be indemnified by you against liability in 
 respect of the said contract, or any breach thereof, on the ground that it 
 was made by him on your behalf and as your agent]. 
 
 And take notice that, if you wish to dispute the plaintiff's claim in 
 this action as against the defendant C. JD., you must cause an appearance 
 to be entered for you within eight days after service of this notice. 
 
 In default of your so appearing, you will not be entitled in any future 
 proceeding between the defendant C. D. and yourself to dispute the 
 validity of the judgment in this action whether obtained by consent or 
 otherwise. 
 
 (Signed) E. T. 
 
 Or, 
 
 X. Y., 
 
 Solicitor for the defendant, 
 E. T. 
 
 Appearance to be entered at 
 
 This is Form I of Schedule (B) to the Rules of Court drawn 
 up in 1874 under the Principal Act. 
 
 The form illustrates Order XVI, Eules 17 and 18, of the 
 present Act, p. 347, supra. 
 
 FOKM 2. 
 
 187 . [Here put the letter and number.'] 
 In the High Court. 
 Queen's Bench Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 The plaintiff confesses the defence stated in the paragraph of the de- 
 fendant's statement of defence [or, of the defendant's further statement 
 of defence]. 
 
 This is Form II of Schedule (B) to the Rules of Court drawn 
 up iu 1874 under the Principal Act. 
 
 The form is intended to illustrate Order XX, Rule 3, of the 
 present Act, p. 373, supra.
 
 500 FORMS UNDER THE SUPREME 
 
 FORM 3. 
 
 187 . [Here put the letter and number.] 
 In the High Court of Justice. 
 Division. 
 
 Between A. .B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 The particulars of the plaintiff's complaint herein, and of the relief and 
 remedy to which he claims to be entitled, appear by the indorsement upon 
 the writ of summons. 
 
 This is Form III of Schedule (B) to the Rules of Court drawn 
 up in 1874 under the Principal Act. 
 
 The form is intended to illustrate Order XXI, Rule 4, of the 
 present Act, supra. 
 
 FOHM 4. 
 
 " To the within-named X. T. 
 
 " Take notice, that if you do not appear to the within counter-claim of 
 " the within-named C. D. within eight days from the service of this defence 
 " and counter-claim upon you, you will be liable to have judgment given 
 " against you in your absence. 
 
 " Appearances are to be entered at 
 
 This is Form IV of Schedule (B) to the Rules of Court drawn 
 up in 1874 under the Principal Act. 
 
 This form is intended to illustrate Order XXII, Rules 5 and 
 G of the present Act, pp. 378-9, supra. 
 
 FORM 5. 
 
 Notice of Payment into Court. 
 
 In the High Court of Justice. 1875. B. No. 
 
 Q. B. Division. 
 
 A. . v. C. D. 
 
 Take notice, that the defendant has paid into Court , and 
 
 says that that sum is enough to satisfy the plaintiff's claim [or the plain- 
 tiff's claim for, $<:.] 
 To Mr. X. Y., 
 
 the plaintiff 's solicitor. 
 
 Z., 
 
 Defendant's solicitor. 
 
 This is Form V of Schedule (B) to the Rules of Court drawn 
 \tp in 1874 under the Principal Act.
 
 COU11T OF JUDICATURE ACTS 1873 AND 1875. 561 
 
 The form is the one required to be used under and by Order 
 XXX, Rule 2, of the present Act, p. 404, supra. 
 
 FORM 6. 
 
 Acceptance of Sum paid into Court. 
 
 In the High Court of Justice. 1875. B. No. 
 
 Q. B. Division. 
 
 A. B. v. C. D. 
 
 Take notice that the plaintiff accepts the sum of paid by you 
 
 into Court in satisfaction of the claim in respect of which it is paid in. 
 
 This is Form VI of Schedule (B), to the Rules of Court drawn 
 up in 1874 under the Principal Act. The form is the one re- 
 quired to be used under and by Order XXX, Rule 4, of the 
 present Act, p. 405, supra. 
 
 FORM 7. 
 
 Form of Inttrrogatoritt. 
 
 In the High Court of Justice. 1874. B. No. 
 
 Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D., E. F. and O. H., defendants. 
 
 Interrogatories on behalf of the above-named \_plaint\ff, or defendant 
 C. D.~\ for the examination of the above-named [defendantt E. F. and 0. H., 
 or plaintiff^, 
 
 1. Did not, &c. 
 
 2. Has not, &c. 
 
 &c. &c. &c. 
 
 [THE DEFENDANT E. F. 18 REQUIRED TO ANSWER THB INTERROGATORIES 
 KUMIiERED ]. 
 
 [TlIE DEFENDANT G. H. 18 REQUIRED TO ANSWER TUB INTERROGATORIES 
 NU11HERED ]. 
 
 This is Form VII of Schedule (B) to the Rules of Court 
 drawn up in 1874 under the Principal Act. 
 
 The form is intended to illustrate Order XXXI, Rule 3, of 
 the present Act, supra. Interrogatories in Chancery were in 
 writing. 
 
 FORM 8. 
 
 1'orm of Ansu-er to Interrogatories, 
 
 In the High Court of Justice. 1874. B. No. 
 
 Division. 
 
 38
 
 562 FORMS UNDER THE SUPREME 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. J)., E. F., and G. H., defendants. 
 
 The answer of the above-named defendant E. F. to the interrogatories 
 for his examination by the ahore-named plaintiff. 
 
 In answer to the said interrogatories, I, the above-named E. F., nialro 
 oath and say as follows : 
 
 This is Form YIII of Schedule (B) to the Rules of Court 
 drawn up in 1874 under the Principal Act. 
 
 The form is intended to illustrate Order XXXI, Rules G 
 and 7, of the present Act, pp. 408-9, supra. 
 
 FORM 9. 
 
 Form of Affidavit as to Documents. 
 In the High Court of Justice. 1874. B. 
 
 Division. 
 Between A. -B., plaintiff, 
 
 and 
 
 C. J)., defendant. 
 I, the above-named defendant C. J)., make oath and say as follows : 
 
 1. I have in my possession or power the documents relating to the 
 matters in question in this suit set forth in the first and second parts of 
 the first Schedule hereto. 
 
 2. I object to produce the said documents set forth in the second part 
 of the said first Schedule hereto. 
 
 3. That [here state upon what grounds the objection is made, and verify the 
 facts as far as may be]. 
 
 4. I have had, but have not now, in my possession or power, the docu- 
 ments relating to the matters in question in this suit set forth in the second 
 Schedule hereto. 
 
 5. The last-mentioned documents were last in my possession or power 
 on [state when], 
 
 6. That [here state what has become of the last-mentioned documents, and 
 in whose possession they now are]. 
 
 7. According to the best of my knowledge, information, and belief, I 
 iiavo not now, and never had in my possession, custody, or power, or in the 
 possession, custody, or power of my solicitors or agents, solicitor or agent, 
 or in the possession, custody, or power of any other persons or person on 
 my behalf, any deed, account, book of account, voucher, receipt, letter, 
 memorandum, paper, or writing, or any copy of. or extract from any such 
 document, or any other document whatsoever, relating to the matters in
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 563 
 
 question in this suit, or any of them, or wherein any entry has been made 
 relative to such matters, or any of them, other than and except the docu- 
 ments set forth in the said first and second Schedules hereto. 
 
 This is Form IX of Schedule (B) to the Rules of Court drawn 
 up in 1874 under the Principal Act. 
 
 This form is intended to illustrate Order XXXI, "Rule 13, of 
 the present Act, p. 411, supra. (See note to that Rule). 
 
 10. 
 
 Form of Notice to produce Documents. 
 In the High Court of Justice. 
 Q. B. Division. 
 
 A. S. v. C. D. 
 
 Take notice that the [plaintiff or defendant] requires you to produce for 
 his inspection the following documents referred to in your [statement of 
 claim or defence, or affidavit, dated the day of A.D.] 
 
 Describe documents required. 
 X.Y., 
 
 Solicitor to the 
 ToZ., 
 
 Solicitor for 
 
 This is Form X of Schedule (B) to the Rules of Court drawn 
 up in 1874 under the Principal Act. 
 
 The form is the one required to be used under and by Order 
 XXXI, Rule 15, of the present Act, p. 412, supra. 
 
 FORM 11. 
 
 Form of Notice to intpect Document*. 
 In the High Court of Justice. 
 Q. B. Division. 
 
 A. B. v. C. D. 
 
 Take notice that you can inspect the documents mentioned in your 
 notice of the day of A.D. [except the deed numbered 
 
 in that notice'] at my office, on Thursday next, the instant, between 
 
 the hours of 12 and 4 o'clock. 
 
 Or, that the [plaintiff or defendant] objects to giving you inspection of 
 the documents mentioned in your notice of the day of A.D., 
 
 on the ground that [ttate the ground]. 
 
 This is Form XI of Schedule (B) to the Rules of Court drawn 
 up in 1874 under the Principal Act.
 
 564 
 
 FORMS UNDER THE SUPREME 
 
 This form is intended to illustrate Order XXXI, Rule 1 6, 
 of the present Act, p. 413, supra. 
 
 FORM 12. 
 
 Form of Notice to admit Document*. 
 In the High Court of Justice. 
 Division. 
 
 A. B. v. C. D. 
 
 Take notice, that the plaintiff [or defendant] in this cause proposes to 
 adduce in evidence the several documents hereunder specified, and that 
 the same may be inspected by the defendant [or plaintiff] his solicitor or 
 agent, at , on , between the hours of 
 
 ; and the defendant [or plaintiff] is hereby required -within 
 forty-eight hours from the last -mentioned hour, to admit that such of tho 
 said documents as are specified to be originals were respectively written, 
 signed, or executed, as they purport respectively to have been ; that such 
 as are specified as copies are true copies ; and such documents as are stated 
 to have been served, sent, or delivered, wore so served, sent, or delivered 
 respectively ; saving all just exceptions to the admissibility of all such 
 documents as evidence in this cause. 
 Dated, &c. 
 
 To E.F. Solicitor [or Agent] for Defendant [or Plaintiff]. 
 
 G. H. Solicitor [or Agent] for Plaintiff [or Defendant]. 
 
 [Here destrUe the Documents the manner of doing which may be at follow* : ] 
 ORIGIXALS. 
 
 Description of Documents. 
 
 Dates. 
 
 Deed of Covenant between A. JD. and C. D., first 
 part, and E. F., second part . . . . 
 
 Indenture of Lease from A ,B. to C.D. 
 
 Indenture of Release between A . ., C. D., first 
 part, &c. 
 
 Letter, Defendant to Plaintiff 
 
 Policy of Insurance on Goods by Ship " Isabella," 
 on voyage from Oporto to London 
 
 Memorandum of Agreement between C. D., Cap- 
 tain of said Ship, and E. F. 
 
 Bill of Exchange for 100 at three months, drawn 
 by A. B. on and accepted by C. D., indorsed 
 by E. I. and G. H. 
 
 January 1 .. 1848 
 February 1 .. 1848 
 
 February 2 
 March 1 
 
 December 3 
 January 1 
 
 May 1 
 
 1848 
 1848 
 
 1847 
 1848 
 
 1849
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 
 
 565 
 
 COPIES. 
 
 Description of Documents. 
 
 Register of Baptism of ^i.B. in 
 the Parish of X 
 
 Letter, plaintiff to defendant 
 Notice to produce papers 
 
 Record of a Judgment of the 
 Court of Queen's Bench, in 
 an action, J.S. v. J.N. 
 
 Letters Patent of King Charles 
 II. in the Rolls Chapel 
 
 Dates. 
 
 January 1.. 1848 
 February 1 1848 
 March 1 . . 1848 
 
 Trinity Term, 
 10th Viet. 
 
 January 1 1G80. 
 
 Original or Duplicate, 
 served, sent, or 
 
 delivered, when, how 
 and by whom. 
 
 Sent by General 
 Post, 2 February, 
 1848 
 
 Served, 2 March, 
 1843, on defen- 
 dant's attorney, 
 by E.F. of 
 
 This is Form XII of Schedule (B) to the Rules of Court drawn 
 up in 1874 under the Principal Act. 
 
 The form is intended to illustrate Order XXXII, Hules 2 and 
 3, of the present Act, pp. 417-18, supra. 
 
 It will be seen that this form is identical in every particular 
 (except the heading), with the form of Notice to admit docu- 
 ments set forth in the General Rules of Hilary Term, 1853, 
 Rule 29. 
 
 1873, B. Ko. 
 
 FORM 13. 
 
 Setting down Special Cate. 
 In the Iligh Court of Justice. 
 Division. 
 
 Between A. JB., plaintiff, 
 
 and 
 
 C. D. and others, defendants. 
 
 Set down for argument the special case filed in this action en tho 
 day of , 187 . 
 
 X. I'., solicitor for
 
 566 FORMS UNDER THE SUPREME 
 
 This is Form XIII of Schedule (B) to the Rules of Court 
 drawn up in 1874 under the Principal Act. 
 
 This form is the one required to be used under and by Order 
 XXXIV, Rule 5, of the present Act, p. 422, supra. 
 
 Forms of Statement of Special Case will be found in the 
 Schedule to the Rules of Michaelmas Vacation, 1854, Nos. 11 
 and 14. 
 
 FORM 14. 
 
 Form of Notice of Trial. 
 In the High Court of Justice. 
 Division. 
 
 A. JB. v. C. D. 
 
 Take notice of trial of this action [or of the issues i.t this action 
 ordered to be tried ] BY A JUDGE AND JURY [or as the case may be~\ IN* MIDDLE- 
 SEX, [or as the case may be~\ for the day of next. 
 
 X. Y., plaintiff's solicitor [or as the case may be"\. 
 Dated 
 
 To Z., defendant's solicitor [or as the case may be]. 
 This is Form XIV of Schedule (B) to the Rules of Court 
 drawn up in 1874 under the Principal Act. 
 
 The form is intended to illustrate Order XXXVI, Rules 3 
 to 15, and especially Rule 8, p. 436. (See note to that Rule, 
 p. 436.^ 
 
 No particular form of words was necessary to constitute a 
 good notice of trial, provided it clearly informed the party in 
 sufficient time when and where the cause was to be tried.* 
 
 FORM 15. 
 
 Fortn of Certificate of officer after trial by a Jury. 
 
 30th November, 1876. 1876. No. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 I certify that this action was tried before the Honourable Mr. Justice 
 and a special jury of the county of on the 12th 
 
 and 13th days of November, 1876. 
 
 * Cory v. Hotstm, 1 L. M. and P. 23. Day's Common Law Procedure 
 Acts, P. 124 (4th edition). See Fenn v. Green 6, E. and B., 656. Kerry v. 
 Reynolds, 4 Dowl., 234.
 
 COUJRT OF JUDICATURE ACTS 1873 AND 1875. 567 
 
 The jury found [state findings]. 
 
 The Judge directed that judgment should be entered for tho plaintiff 
 for with costs of summons [or as the case may be\. 
 
 A.B. 
 
 {Title of officer. "\ 
 
 This form is new. It illustrates Order XXXVI, Eule 24, 
 p. 444, supra. See note to Order XL, Eule o. 
 
 FORM. 16. 
 Affidavit of Scripts. 
 In the High Court of Justice. 
 
 Probate Division. 
 Between A.B. - plaintiff, 
 
 and 
 
 C.D. _- - - - defendant. 
 
 I, A.Jj. of , in the county of 
 
 party in this cause, make oath and say, that no paper or parchment 
 writing, being or purporting to bo or having the form or effect of a will 
 or codicil or other testamentary disposition of E.F. , late of , 
 
 in the county of , deceased, the deceased in 
 
 this cause, OR BEING OK. PURPORTING TO HE INSTRUCTIONS FOR, or. riiE 
 
 DRAFT OF, ANY WILL, OR TESTAMENTARY DISPOSITION OF THE SAID H.F., has 
 
 at any time, either before or since his death, come to the hands, possession, 
 or knowledge of me, this deponent, or to the hands, possession, or knowledge 
 of my solicitors in this suit, so far as is known to me, this deponent, save 
 and except the true and original last will and testament of the said de- 
 ceased now remaining in the principal registry of this court [or hereunto 
 annexed or as the ease may be], the said will bearing date the 
 day of 18 [or as the case may be], also save and 
 
 except [here add the dates and particulars of any other testamentary papers 
 of which the deponent has any knowledge]. 
 
 (Signed) A.B., 
 
 Sworn at on the day of 18 
 
 Before me, 
 [Person authorised to administer oaths under the Act."] 
 
 This form illustrates Order XXI, Rule 2, p. 375. Except, 
 the words in small capital letters, this form is copied from the 
 Schedule (No. 10) to the Rules of the Court of Probate in 
 contentious business. 
 
 APPENDIX (C). 
 
 The forms in this Appendix, with the exception of Nos. 28 
 and 29 (which are copied from Schedule (C.) to the Rules of 
 Court drawn up in 1874 under the Principal Act), are new.
 
 568 FORMS UNDER THE SUPREME 
 
 Appendix (C) is intended to illustrate Order XIX, Bgile 
 of the present Act, p. 357, supra. 
 
 No. 1. 
 
 ACCOUNT STATED 
 In the High Court of Justice. 
 Division. 
 
 Writ issued 3rd August, 1875. 
 Between A.S. - - - - , plaintiff, 
 
 and 
 
 E.F. .... defendant. 
 
 Statement of Claim. 
 
 1. Between the 1st of January and the 28th of February, 1875, the 
 plaintiff supplied to the defendant various articles of drapery ; and accounts 
 and invoices of the goods so supplied, and their prices, were from time to 
 time furnished to the defendant, and payments on account were from 
 time to time made by the defendant. 
 
 2. On the 28th of February, 1875, a balance remained due to the plain- 
 tiff of 75. 9s., and an account was on that day sent by the plaintiff to the 
 defendant showing that balance. 
 
 3. On the 1st of March following, the plaintiff's collector saw the 
 defendant at his house, and asked for payment of the said balance, and 
 the defendant then paid him by cheque 25 on account of the same. The 
 residue of the said balance, amounting to 50. 9*., has never been paid. 
 
 The plaintiff claims 
 
 The plaintiff proposes that this action should be tried in the county of 
 Northampton. 
 
 [Title as in claim, omitting date of issue of writ."] 
 Statement of Defence. 
 
 Reply 1. The defendants deny that the said commission of per cent, 
 mentioned in paragraph 4 of the claim is the rate of commission ordi- 
 narily charged by del credere agents in the said trade, and say that the 
 same is the ordinary commission for agents other than del credere 
 agents, and they deny that they ever accounted to the plaintiffs for the 
 price of any goods, except after they had received the same from the 
 purchasers. 
 
 2. The defendants deny that they were ever liable to the plaintiffs as 
 del credere agents. 
 
 3. With respect to the eighth paragraph of the plaintiffs statement of 
 claim, the defendants say that at the time of the said sale to the said 
 G. H., the said G. H. was a person in good credit. If it be true that the 
 said G. H. was then in insolvent circumstances (-which the defendants do 
 not admit), the defendants did not and had no reason to suspect the same, 
 and could nov by ordinary care or diligence have ascertained the fact.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 569 
 
 [Title at in defence.] 
 
 Reply. 
 The plaintiffs join issue upon the defendants' statement of defence. 
 
 No. 2. 
 
 ADMINISTRATION OF ESTATE. 
 
 In the High Court of Justice. [1876. B. No. 233.] 
 
 Chancery Division. 
 Name of [Judge.'] 
 
 Writ issued 22nd December, 1876. 
 In the matter of the estate of A.B., deceased. 
 Between E.F. - - - - plaintiff, 
 
 and 
 
 G. H* - - - - defendant. 
 
 Statement of Claim. 
 
 1. A.S. of K. , in the county of L., died on the 1st of July, 1875, 
 intestate. The defendant G.H. is the administrator of A.B. 
 
 2. A.B. died entitled to lands in the said county 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 mortgages under mortgages created by the intestate. 
 
 3. A.B. was never married : he had one brother only, who pre- 
 deceased him without having been married, and two sisters only, both of 
 whom also predeceased him, namely M.N. and f.Q. The plaintiff is 
 the only child of M.N., and the defendant is the only child of f.Q. 
 
 The plaintiff claims 
 
 1. To have the real and personal estate of A.B. administered in 
 
 this court, 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. 
 
 [1876. B. No. 233.] 
 In the High Court of Justice. 
 
 Chancery Division. 
 [Name of Judge.'] 
 
 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. 
 
 * The word " into " has evidently been omitted here.
 
 570 FORMS UNDER THE SUPREME 
 
 2. The intestate was not entitled to any real estate at his death, except 
 a copyhold estate situate i n the county of H., and held of the manor of 
 S. According to the custom of that manor, when the copyholder dies 
 without issue, and without leaving a brother, or issue of a deceased 
 brother, the copyhold descends to his elder sister and her issue in pre- 
 ference to his younger sister and her issue. P.Q. was older than Jf.JV. 
 
 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 funeral and testa- 
 mentary expenses, and part of his debts. 
 
 [1876. B. No. 233.] 
 
 In the High Court of Justice. 
 Chancery Division. 
 [Name of Judge.~] 
 
 In the matter of the estate of A.B., deceased. 
 Between E.F. .... plaintiff, 
 
 and 
 G.H. .... defendant. 
 
 Reply. 
 The plaintiff joins issue with the defendant upon his defence. 
 
 No. 3. 
 Statement of Claim. 
 
 . [1876. B. Xo. 234.] 
 In the High Court of Justice. 
 Chancery Division. 
 [Name of Judge.] 
 
 Writ issued 22nd December, 1876. 
 In the matter of the estate of A.B., deceased. 
 Between E.F. .... plaintiff, 
 
 and 
 
 G.H. .... defendant. 
 
 1. A.B. of _ZT., in the county of Z., duly made his last will, dated 
 the 1st day of March, 1873, whereby he appointed the defendant and J/".JV. 
 (who died in the testator's lifetime) executors thereof, and devised and 
 bequeathed his real and personal estate to and to the use of his executors 
 in trust to pay the rents and income thereof to the plaintiff for his life ; 
 and after his decease, and in default of his having a son who should 
 attain twenty-one, or a daughter who should attain that age or marry, 
 upon trust as to his real estate for the person who would be the 
 testator's heir-at-law, and as to his personal estate for the persons who 
 would be the testator's next of kin if he had died intestate at the time 
 of the death of the plaintiff, and such failure of his ssue as afore- 
 said.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 571 
 
 2. The testator died on the 1st day of July, 1873, and his "will was 
 proved by the defendant on the 4th of October, 1873. The plaintiff has 
 not been married. 
 
 3. The testator was at his death entitled to real and personal estate ; 
 the defendant entered into the receipt of the rents of the real estate and 
 got in the personal estate ; he has sold some part of the real estate. 
 
 The plaintiff claims 
 
 1. To have the real and personal estate of A.B. administered in this 
 
 court, and for that purpose to have all proper directions given 
 and accounts taken. 
 
 2. Such further or other relief as the nature of the case may 
 
 require. 
 
 [1876. B. No. 234.] 
 In the High Court of Justice. 
 Chancery Division. 
 {Name of Judge.'] 
 
 In the matter of the estate of A.B., deceased. 
 Between JE.f. - - plaintiff, 
 
 and 
 G.IL - - - defendant. 
 
 Statement of Defence. 
 
 1. A.B.'s will contained a charge of debts; he died insolvent ; he was 
 entitled at his death to some real estate which the defendant sold, and 
 which produced the net sum of 4,300, and the testator had some 
 personal estate which the defendant got in and which produced the net 
 sum of 1,204. The defendant applied the whole of the said suras and 
 the sum of 84, which the defendant received from rents of the real 
 estate, in the payment of the funeral and testamentary expenses, and 
 some of the debts of the testator. The defendant made up his accounts 
 and sent a copy thereof to the plaintiff on the 10th of January, 175, 
 and offered the plaintiff free access to the vouchers to verify such 
 accounts, but he declined to avail himself of the defendant's offer. The 
 defendant submits that the plaintiff ought to pay the costs of this 
 action. 
 
 [1876. B. No. 234.] 
 In the High Court of Justice. 
 Chancery Division. 
 [Name of Judge. ~\ 
 
 In the matter of the estate of A.B., deceased. 
 
 Between E.F. plaintiff, 
 
 and 
 G.H. ...... defendant.
 
 572 FORMS UNDER THE SUPREME 
 
 Reply. 
 
 The plaintiff joins issue with the defendant upon his defence. 
 
 No. 4. 
 
 [1876. B. No. 235.] 
 In the High Court of Justice. 
 Chancery Division. 
 [Name of Judge.~\ 
 
 In the matter of the estate of W.H., deceased. 
 
 Writ issued 22nd December, 1876. 
 Bet ween A.B. and C. his wife ... plaintiffs, 
 
 and 
 JS.F. and G.H. .... defendants. 
 
 Statement of Claim. 
 
 1. "W. H., of H., in the county of L., duly made his last will, dated the 
 19th day of March, 1861, whereby he appointed the defendants the 
 executors thereof, and bequeathed to them all his personal estate in trust, 
 to call in, sell, and convert the same into money, and thereout to pay his 
 debts and funeral and testamentary expenses, and to divide the ultimate 
 surplus into three shares, and to pay one of such three shares to each of 
 his two children, T. H., and E., the wife of E. W., and to stand possessed 
 of the remaining third share upon trust for the children of the testator's 
 son J. H. in equal shares, to be divided among them when the youngest 
 of such children should attain the age of 21 years. And the testator 
 devised his real estates to the defendants upon trust until the youngest 
 child of the said J. H. should attain the age of 21 years, to pay one third 
 part of the rents thereof to the said T. H., and one other third part 
 thereof to the said E. W., and to accumulate the remaining third part by 
 way of compound interest, and so soon as the youngest child of the said 
 J. H. should attain the age of 21 years, to sell the said real estates, and 
 out of the proceeds of such sale to pay the sum of 1,000 to the said 
 T. H., and to invest one moiety of the residue in manner therein 
 mentioned, and stand possessed thereof in trust to pay the income thereof 
 to the said E., the wife of the said E. W., during her life for her separate 
 use, and after her death for her children, the interests of such children 
 being contingent on their attaining the age of 2 1 years, and to divide the 
 other moiety of such proceeds of sale and the accumulations of the third 
 share of rents thereinbefore directed to be accumulated among such of 
 the children of the said J. H. as should be then living, and the issue of 
 such of them as should be then dead, in equal shares per stirpes. 
 
 2. The testator died on the 25th day of April, 1873, and his said will 
 was proved by the defendants in the month of June, 1862. 
 
 3. The testator died possessed of one third share in a leasehold colliery
 
 COTJIIT OF JUDICATURE ACTS 1873 A^D 1875. 573 
 
 called the Paradise Colliery, and in the engines, machinery, stock in trade, 
 "book dehts, and effects belonging thereto. He was also entitled to real 
 estate, and other personal estate. 
 
 4. The testator left T. H. and E., the wife of E. W., him surviving. 
 J. H. had died in the testator's lifetime, leaving four children, and no 
 more. The plaintiff C. B. is the youngest of the children of J. H. and 
 attained the age of 21 years on the 1st of June 1871. The other three 
 children of J. H. died without issue in the lifetime of the testator. 
 
 5. E. W. has several children, but no child has attained the age of 21 
 years. 
 
 6. T. H. is the testator's heir-at-law. 
 
 7. The defendants havo not called in, sold, and converted into money the 
 whole of the testator's personal estate, but have allowed a considerable- 
 part thereof to remain outstanding; and in particular the defendants 
 have not called in, sold, or converted into money the testator's interest in 
 the said colliery, but have, from the death of the testator to the present 
 time, continued to work the same in partnership with the other persons 
 interested therein. The estate of the testator has sustained considerable 
 loss by reason of such interest not having been called in, sold, or converted 
 into money. 
 
 8. The defendants did not upon the death of the testator sell the 
 testator's furniture, plate, linen, and china, but allowed the testator's 
 widow to possess herself of a great part thereof, without accounting for 
 the same, and the same has thereby been lost to the testator's estate. 
 
 9. The defendants have not invested the share of the testator's residuary 
 personal estate given by his will to the children of the testator's son .T. H. 
 and have not accumulated one-third of the rents and profits of his real 
 estate as directed by the said will, but have mixed the same- share and 
 rents with their own moneys, and employed them in business on their 
 own account. 
 
 10. The defendants have sold part of the real estates of the testator 
 but a considerable part thereof remains unsold. 
 
 11. A receiver ought to be appointed of the outstanding personal 
 estate of the testator, and the rents and profits of his real estate 
 remaining unsold. 
 
 The plaintiffs claim : 
 
 1. That the estate of the said testator may be administered, and the 
 
 trusts of his will carried into execution under the direction of the 
 court. , 
 
 2. That it may bo declared that the defendants, by carrying on 
 
 the business of the said colliery instead of realizing the same, have 
 committed a breach of trust, and that the parties interested in the 
 testator's estate are entitled to the value of the testator's interest in 
 the said partnership property as it stood at the testator's death
 
 574 FORMS UNDER THE SUPREME 
 
 with interest thereon, or at their election to the profits which have 
 been made by the defendants in respect thereof since the testator's 
 death, whichever shall be found most for their benefit. 
 
 3. That an account may be taken of the interest of the testator in the 
 
 said colliery, and in the machinery, book debts, stock, and off _cts 
 belonging thereto, according to the value thereof at the testator's 
 death, and an account of all sums of money received by or by 
 the order, or for the xise of the defendants, or either of them, 
 on account of the testator's interest in the said colliery, and that 
 the defendants may be ordered to make good to the estate of the 
 testator the loss arising from their not having realized the interest 
 of the testator in the said colliery within a reasonable time after his 
 decease. 
 
 4. That an account may be taken of all other personal estate of the 
 
 testator come to the hands of the defendants, or either of them, 
 or to the hands of any other person by their or either of their order, 
 or for their or either of their use, or which, but for their wilful 
 neglect or default, might have been so received ; and an account of 
 the rents and profits of the testator's real estate, and the moneys 
 arising from the sale thereof, possessed or received by or by the 
 order, or for the use of the defendants, or either of them. 
 
 5. That the real estate of the testator remaining unsold may be sold 
 
 under the direction of the court. 
 
 6. That the defendants may be decreed, at the election of the parties 
 
 interested in the testator's estate, either to pay interest at the rate 
 of 5 per cent, per annum upon such moneys belonging to the 
 estate of the testator as they have improperly mixed with their 
 own moneys and employed in business on their own account, and 
 that half-yearly tests may be made in taking such account as 
 respects all moneys which by the said will were directed to be ac- 
 cumulated, or to account for all profits by the employment in their 
 business of the said trust money. 
 
 7. That a receiver may DC appointed of the outstanding personal estate 
 
 of the testator, and to receive the rents and profits of his real estate 
 remaining unsold. 
 
 8. Such further or other relief as the nature of the case may require. 
 
 [1876. B. 235.] 
 In the High Court of Justice, 
 Chancery Division. 
 
 [Name of JudgeJ] 
 Between A.B. and C. his wife - - Plaintiffs, 
 
 and 
 E.F. and O. E. - Defendants.
 
 COURT OF JUDICATURE ACTS 1873 AXD 1875. 575 
 
 Statement of Defence of the above-named Defendants. 
 
 Defence. 1 . Shortly after the decease of the testator, the defendants, as his 
 executors, possessed themselves of and converted into money the testator's 
 personal estate, except his share in the colliery mentioned in the plaintiffs' 
 statement of claim. The moneys so arising were applied in payment of 
 part of the testator's debts and funeral and testamentary expenses, but 
 such moneys were not sufficient for the payment thereof in full. 
 
 2. The Paradise colliery was, at the testator's decease, worked by him in 
 partnership with J. Y., and W. Y., andT. Y., both since deceased. No written 
 articles of partnership had been entered into, and for many years the 
 testator had not taken any part in the management of the said colliery, 
 but it was managed exclusively by the other partners, and the defendants 
 did not know with certainty to what share therein the testator was entitled. 
 
 3. Upon the death of the testator, the defendants endeavoured to ascer- 
 tain the value of the testator's share in the colliery, but the other partners 
 refused to give them any information. The defendants thereupon had the 
 books of the colliery eiamined by a competent accountant, but they had 
 been so carelessly kept that it was impossible to obtain from them any 
 accurate information respecting the state of the concern ; it was, however, 
 ascertained that a considerable sum was due to the testator's estate. 
 
 4. Between the death of the testator and the beginning of the year 1874 
 the defendants made frequent applications to J. Y., W. Y., and T. Y. for 
 a settlement of the accounts of the colliery. Such applications having 
 proved fruitless, the defendants, in January, 1874, filed their bill of com- 
 plaint in the Court of Chancery against J. Y., W. Y., and T. Y., praying 
 for an accouut of the partnership dealings between the testator and the 
 defendants thereto, and that the partnership might be wound up under 
 tho direction of the Court. 
 
 5. The said T. Y. died in the year 1874, and the suit was revived 
 against J. P. and T. S., his executors. The suit is still pending. 
 
 6. As to the Paradise colliery, the defendants have acted to the best of 
 their judgment for the benefit of the testator's estate, and they deny being 
 under any liability in respect of tho said colliery not having been realised. 
 They submit to act under the direction of the Court as to the further pro- 
 secution of the said suit and generally as to the realization of the testator's 
 interest in the said colliery. 
 
 7. With respect to the statements in the eighth paragraph of the state- 
 ment of claim, the defendants say, that upon the death of the testator, 
 they sold the whole of his furniture, linen, and china, and also all his 
 plate, except a few silver teaspoons of very small value, which were taken 
 possessJor, cf by his widcrw, and they applied the proceeds of such sale as 
 part of the testator's personal estate, and they deny being under any 
 liability in respect of such furniture, linen, china, and plate. 
 
 8. With respect to the statements in paragraph seven of the statement
 
 576 FORMS UNDER THE SUPREME 
 
 of claim, the defendants say that all moneys received by them, or either of 
 them, on account of the testator's estate, were paid by them to their 
 executorship account at the bank of Messrs. H. and Co., and until the sale 
 of the testator's real estate took place as hereinafter mentioned, the 
 balance to their credit was never greater than was necessary for the 
 administration of the trusts of the testator's will, and they therefore were 
 unable to make any such investment or accumulation as directed by the 
 testator's will. No moneys belonging to the testator's estate have ever 
 been mixed with the moneys of the defendant, or either of them, nor has 
 any money of the testator's been employed in business since the testator's 
 decease, except that his share in the said colliery, for the reason herein- 
 before appearing, has not been got in. 
 
 9. In 1874, after the plaintiff C.B. had attained her age of 21 years the 
 defendants sold the real estate of the testator for sums amounting to 
 15,080, and no part thereof remains unsold. They received the purchase 
 moneys in December, 1874, and on the day of 
 
 1875 they paid such proceeds into Court to the credit of this action with 
 the exception of 500, retained on account of costs incurred and ; to be 
 incurred bv them. 
 
 [1876. B. No.235.] 
 In the High Court of Justice, 
 Chancery Division. 
 
 [Name of Judge."] 
 Between A.B. and C. his wife - ... Plaintiffs, 
 
 and 
 E.F. and G.H. - - - - - Defendants. 
 
 Reply. 
 The plaintiff joins issue with the defendants upon their defence. 
 
 No. 5. 
 
 AGENT. 
 
 187 . B. Xo. 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 3rd August 1875. 
 Between A.B. and Company - ... Plaintiffs, 
 
 and 
 JE.F. and Company .... Defendants. 
 
 Statement of Claim. 
 
 1. The plaintiffs are manufacturers of . artificial manures, carrying 
 on business at , in the county of 
 
 2. The defendants are commission agents, carryingon business inLcnaon. 
 
 3. In the early part of the year , the plaintiffs commenced, and
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 577 
 
 down to the 187 , continued to consign to the defendants, 
 
 as their agents, large quantities of their manures for sale, and the defen- 
 dants sold the same, and received the price thereof and accounted to the 
 plaintiffs therefor. 
 
 4. No express agreement has ever been entered into between the plain- 
 tiffs and the defendants with respeat to the terms of the defendant < 
 employment as agents. The defendants have always charged the plaintiffs 
 a commission at per cent, on all sales effected by them, which is the 
 rate of commission ordinarily charged by del credere agents in the said 
 trade. And the defendants, in fact, always accounted to the plaintiffs for 
 the price, whether they received the same from the purchasers or not. 
 
 5. The plaintiffs contend that the defendants are liable to them as dal 
 credere agents, but if not so liable are under the circumstances herein- 
 after mentioned liable as ordinary agents. 
 
 6. On the , the plaintiffs consigned to the defendants 
 for sale a large quantity of goods, including tons of 
 
 7. On or about the , the defendants sold 
 
 tons of part of such goods to one G.H. for , ai 
 
 three months' credit, and delivered the same to him. 
 
 8. G.H. was not, at that time, in good credit and was in insolvent cir- 
 cumstances, and the defendants might, by ordinary care and diligence, 
 have ascertained the fact. 
 
 9. G.H. did not pay for the said goods, but before the expiration of the 
 said three months for which credit had been given was adjudicated :i 
 bankrupt, and the plaintiffs have never received the said sum of 
 
 or any part thereof. 
 The plaintiffs claim : 
 
 1 . Damages to the amount of . 
 
 2. Such further or other relief as the nature of the case may require. 
 The plaintiffs propose that this action should be tried in the count/ 
 
 of 
 
 Ko. 6. 
 
 BILL t)F EXCHANGE. 
 
 187 . B. ^-o. 
 In the High Court of Justice, 
 Division. 
 
 "Writ issued 3rd August, 1876. 
 
 Between A.B. and C.D Plaintiffs, 
 
 and 
 .F. and G.H. .... Defendants. 
 
 Statement of Claim. 
 
 1. Messrs. M.N. Co. on the day of drew 
 
 a bill of exchange upon the defendants for payable to thp 
 
 37
 
 578 FORMS UNDER THE SUPREME 
 
 order of the said M.N. $ Co. three months after date, and the defendants 
 accepted the same. 
 
 2. Messrs. M.N.$ Co. indorsed the bill to the plaintiffs. 
 
 3. The bill became due on the , and the defendant 
 has not paid it. 
 
 The plaintiffs claim : 
 
 [Title.] 
 
 Statement of Defence. 
 
 1. The bill of exchange mentioned in the statement of claim was 
 drawn and accepted under the circumstances hereinafter stated, and 
 except as hereinafter mentioned there never was any consideration for 
 the acceptance or payment thereof by the defendants. 
 
 2. Shortly before the acceptance of the said bill it was agreed between 
 the said Messrs. M.N. $ Co., the drawers thereof, and the defendants, that 
 the said Messrs. M.N. $ Co. should sell and deliver to the defendants free 
 on board sbJp at the port of 1,200 tons of coals during the 
 month of , and that the defendants should pay for the 
 same by accepting the said Messrs. M.N. $ Co.'s draft for at 
 six months. 
 
 3. The said Messrs. M.N. $ Co. accordingly drew upon the defendants, 
 and the defendants accepted the bill of exchange now sued upon. 
 
 4. The defendants did all things which were necessary to entitle them 
 to delivery by the said Messrs. M. N. $ Co. of the said 1,200 tons of coals 
 under their said contract, and the time for delivery has long since elapsed ; 
 but the said Messrs. M.N. Co. never delivered the same, or any part 
 thereof, but have always refused to do so, whereby the consideration for 
 the defendants' acceptance has wholly failed. 
 
 5. The plaintiffs first received the said bill, and it was first indorsed to 
 them after it was overdue. 
 
 6. The plaintiffs never gave any value or consideration for the said 
 bill. 
 
 7. The plaintiffs took the said bill with notice of the facts stated in the 
 econd, third, and fourth paragraphs hereof. 
 
 [Title.] 
 JReply. 
 
 1. The plaintiff joins issue upon the defendants' statement of defence. 
 
 2. The plaintiff gave value and consideration for the said bill in manner 
 following, that is to say, on the day of , 187 , 
 
 the said Messrs. M.N. <$ Co. were indebted to the plaintiff in about 
 , the balance of an account for goods sold from time to time by 
 fcim to them. On that day they ordered of the plaintiff further goods to 
 $he value of about , -which last-mentioned goods have since
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 579 
 
 been delivered by him to them. And at the time of the order for such 
 last-mentioned goods it was agreed between Messrs. M.N. $ Co. and the 
 plaintiff, and the order was received upon the terms, that they should 
 indorse and hand over to him the hill of exchange sued upon, together 
 with various other securities on account of the said previous balance, and 
 the price of the goods so ordered on that day. The said securities, in- 
 cluding the bill sued upon, were thereupon on the same day indorsed and 
 handed over to the plaintiff. 
 
 .No. 7. 
 BILL OF EXCHANGE AND CONSIDEEATION. 
 
 187 . B. No. 
 In the High Court of Justice, 
 Division. 
 
 "Writ issued 3rd August, 1876. 
 Between A.B. and (7.J9. .... Plaintiffs, 
 
 and 
 
 H.F. and GUT. .... Defendants. 
 Statement of Claim. 
 
 1. The plaintiffs are merchants, factors, and 
 commission agents, carrying on business in London. 
 
 2. The defendants are merchants and commission agents, carrying on 
 business at Hong Kong. 
 
 3. For several years prior to the , 1875, the plaintiffs 
 had been in the habit of consigning goods to the defendants for sale, as 
 their agents, and the defendants had been in the habit of consigning goods 
 to the plaintiffs for sale, as their agents ; and each party always received 
 the price of the goods sold by him for the other ; and a balance was from 
 time to time struck between the parties and paid. 
 
 On the of , the moneys so received by 
 
 the defendants for the plaintiffs, and remaining in their names, largely 
 exceeded the moneys received by the plaintiffs for the defendants, and a 
 balance of was accordingly due to the plaintiffs from the 
 
 defendants. 
 
 4. On or "about the , 1875, the plaintiffs sent to 
 the defendants a statement of the accounts between them, showing the 
 said sum as the balance due to the plaintiffs from the defendants, and the 
 defendants agreed to the said statement of accounts as correct, and to the 
 said sum of as the balance duo by them to the plaintiffs, 
 and agreed to pay interest on such balance if time were given to them. 
 
 5. The defendants requested the plaintiffs to giro them three months' 
 time for payment of the said sum of , and the plaintiffs agreed 
 to do so upon the defendants accepting the bills of exchange hereinafter 
 mentioned.
 
 580 FORMS UNDER THE SUPREME 
 
 6. The plaintiffs thereupon on the 
 
 drew two bills of exchange upon the defendants, one for and 
 
 the other for , both payable to the order of the plaintiffs three- 
 
 months after date, and the defendants accepted the bills. 
 
 The said bills became due on the , 187 f an( j the 
 
 defendants have not paid the bills, or either of them, nor the said sum 
 of 
 
 The plaintiffs claim : 
 and interest to the date of judgment. 
 
 The plaintiffs propose that the action should be tried in London. 
 
 1ST . B. No. 
 
 In the High Court of Justice, 
 Division. 
 
 "Writ issued [ 
 
 [THE "IDA."]* 
 Between A.B. and C.D. ... Plaintiffs, 
 
 and 
 E. F. and G.H. - - Defendants. 
 
 Statement of Claim. 
 
 [1. The "Ida" is a vessel of which no owner or part owner was, 
 at the time of the institution of this cause, domiciled in England or 
 Wales.Jf 
 
 2. In the month of February 1873, Messrs. L. and Company, of 
 Alexandria, caused to be shipped 6,110ardebs of cotton seed on board the 
 said vessel, then lying in Port Said (Egypt), and the then master of the 
 vessel received the same, to be carried from Port Said to Hull, upon the- 
 terms of three bills of lading, signed by the master, and delivered to 
 Jlessrs. L. and Company. 
 
 3. The three bills of lading, being in form exactly similar to one 
 another, were and are, so far as is material to the present case, in the 
 words, letters, and figures following, that is to say : 
 
 '* Shipped in good order and well conditioned by L. & Co., Alexandria 
 " (Egypt) in and upon the good ship called the ' Ida,' whereof is 
 " master for the present voyage Ambrozio Chiapclla, and now riding 
 " at anchor in the port of Port Said (Egypt) and bound for Hull, 
 "six thousand one hundred and ten ardebs cotton seed being 
 
 * In Admiralty action insert name of ship. 
 
 t A statement to this effect may be inserted if the action be under sect. 
 6 of the Admiralty Act, 1861.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 581 
 
 " marked and numbered as in the margin, and are to be delivered 
 " in the like good order and well-conditioned at the aforesaid Port 
 " of Hull (the act of God, the Queen's enemies, fire and all and 
 " every other dangers and accidents of the seas, rivers, and naviga- 
 " tion of whatever nature and kind soever, save risk of boats so far 
 " as ships are liable thereto excepted), unto order or to assigns paying 
 " freight for the said goods at the rate of (19*.) say nineteen 
 " shillings sterling in full per ton of 20 cwt. delivered with 10 
 " gratuity. Other conditions as per charter-party, dated London, 4th 
 ' October, 1872, with primage and average accustomed. In witness 
 " whereof the master or purser of the said ship hath affirmed to three 
 " bills of lading, all of this tenor and date, the one of which three 
 " bills being accomplished the other two to stand void. Dated in 
 " Port Said (Egypt) 6th February, 1873. 100 dunnage mats. Fifteen 
 " Working days remain for discharging." 
 
 4 . The persons constituting the firm of Messrs. L. and Company are 
 identical with the members of the plaintiffs' firm. 
 
 5. The vessel sailed on her voyage to Hull, and duly arrived there on 
 or about the 7th day of May, 1873. 
 
 6. The cotton seed was delivered to the plaintiffs, but not in as good 
 order and condition as it was in when shipped at Port Said ; but was 
 delivered to the plaintiff greatly damaged. 
 
 7. The deterioration of the cotton seed was not occasioned by any of 
 the perils or causes in the bills of lading excepted. 
 
 8. By reason of the premises the plaintiffs lost as great part of the 
 value of the said cotton seed, and were put to a great expense in and 
 nbout keeping, warehousing, and improving the condition of the said 
 cotton seed, and in and about having the same surveyed. 
 
 The plaintiffs claim the following relief : 
 
 1 . 1. for damages, [*and the condemnation of the said 
 vessel and the defendant and his bail in the same] : 
 
 2. Such further relief as the nature of the case requires. 
 
 [Title.] 
 
 Defence. 
 Statement of : 
 
 1. They deny the truth of the allegations contained in the sixth, 
 seventh and eighth articles of the said Petition. 
 
 2. The deterioration, if any, to the cotton seed was occasioned by the 
 character and quality of the cotton seed when shipped on board the 
 " Ida," and by the inherent qualities of the cotton seed, and by shipping 
 water in a severe storm which occurred on the day of 
 
 in latitude during the voyage, or by some or one of such causes. 
 
 This may be inserted if the action be an Admiralty action in rein.
 
 582 FORMS UNDER THE SUPREME 
 
 [Title.] 
 JReply. 
 
 Reply. 
 
 The plaintiffs join issue upon the statement of defence. 
 
 No. 9. 
 
 BOTTOMRY. 
 
 187 . B. No. 
 In the High Court of Justice, 
 Admiralty Division. 
 
 [Writ issued] 
 
 THE " ONWARD." 
 Between A.B. and C.D. - Plaintiffs, 
 
 and 
 E.F. and G.H. ... Defendants. 
 
 Statement of Claim. 
 
 1. The " Onward," a ship of 933 tons register, or thereabouts, belong- 
 ing to the United States of America, whilst on a voyage from Moulmein 
 to Queenstown or Falmouth, for orders, and from thence to a port of 
 discharge in the United Kingdom or on the Continent, between Bordeaux 
 and Hamburg, both ports inclusive, laden with a cargo of teak timber, 
 was compelled to put into Port Louis, in the island of Mauritius, in 
 order to repair and refit. 
 
 2. The master of the " Onward," being without funds or credit at Port 
 Louis, and being unable to pay the expense of the said repairs, and the 
 necessary disbursements of the said ship at Port Louis, so as to enable the 
 said ship to resume and prosecute her voyage, and after having com- 
 municated with his owners and with the owners and consignees of the 
 cargo, was compelled to resort to a loan of 24,369 dollars on bottomry 
 of the said ship, her cargo and freight, for the purpose of enabling him 
 to pay the said expenses and disbursements, which sum Messrs. H. and 
 Company, of Port Louis, at the request of the master by public advertise- 
 ment, advanced to the said master at and after the rate of 128 dollars for 
 every 100 dollars advanced, and accordingly the said master, by a bond of 
 bottomry, dated the 13thof October, 1870, by him duly executedin considera- 
 tion of the sum of 24, 369 dollars, Mauritius currency, paid to bim by the said 
 Messrs. H. and Company, bound himself and the said ship and her cargo, 
 namely about 940 tons of teak timber, and her freight, to pay unto Messrs. 
 H. and Company, their assigns or order or indorsees, the said sum of 24,369 
 dollars with the aforesaid maritime premium thereon, within twenty 
 days next after the arrival of the " Onward" at her port of discharge 
 from the said intended voyage, the said payment to be made, both in 
 capital and interest, in British sterling money, at and after the rate of 4s. 
 for every dollar, with a condition, that in case the said ship and cargo
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 583 
 
 should be lost during her voyage from Port Louis to Queenstown or 
 Falmouth, for orders, and thence to her port of discharge in the United 
 Kingdom, or on the Continent between Bordeaux and Hamburg, both, 
 ports inclusive, then, that the said sum of 24,359 dollars, and maritime 
 premium thereon, should not be recoverable. 
 
 3. The "Onward" subsequently proceeded on her voyage, and on the 
 7th of February, 1871, arrived with her cargo on board at the port of 
 Liverpool, which was her port of discharge. 
 
 4. The bond was duly indorsed and assigned to the plaintiffs. 
 
 5. The ship has been sold by order of the Court, and the proceeds of the 
 sale thereof have been brought into Court, and the freight has also been 
 paid into Court. 
 
 6. The said sum of 24,369 dollars, with the maritime premium thereon, 
 still remain (sic) due to the plaintiffs. By a decree made on the 10th of May, 
 1871, the Court pronounced for the validity of the bond, so far as re- 
 garded the ship and freight, and condemned the proceeds of the ship and 
 freight in the amount due on the bond. The principal and premium still 
 remain owing to the plaintiffs, and the proceeds of the said ship and her 
 freight available for payment thereof are insufficient for such payment. 
 
 The plaintiffs claim : 
 
 1 . That the Court pronounce for the validity of the bond so far as 
 regards the cargo : 
 
 2. That the Court condemn the defendants and their bail in so much 
 of the amount due to the plaintiffs on the bond, for principal, 
 maritime premium, and for interest, from the time when such, 
 principal and premium ought to have been paid, as the proceeds of 
 the ship and freight available for payment of the bond shall be 
 insufficient to satisfy, and in costs : 
 
 3. Such further relief as the nature of the case requires. 
 
 [Title.] 
 
 Defence. 
 
 The defendants say that the 
 
 1 . Several averments in the second article of the statement contained 
 are respectively untrue, except the averment that the bottomry bond 
 therein mentioned was given and executed. 
 
 3. The "Onward" proceeded on the voyage, in the first paragraph of 
 the claim mentioned, under a charter-party made between the defendants 
 and the owners of the vessel, who resided at New York. And the cargo, 
 in the said paragraph mentioned, belonged to the defendants, and was 
 shipped at Moulmein. by Messieurs T., F., and Company, of Moulmein, 
 consigned to the defendants. 
 
 4. When the " Onward " put into Port Louis, the master placed his 
 ship in the hands of Messieurs H. and Company, the persons in the second
 
 584 FORMS UNDER THE SUPREME 
 
 paragraph of the claim mentioned, and the repairs and disbursements in 
 the said second article mentioned were made, directed, and expended, 
 under the orders, management, and on the credit of the said Messieurs 
 H. and Company, who at the outset contemplated the necessity of securing 
 themselves by the hypothecation of the ship, freight, and cargo. 
 
 5. The master of the "Onward" and Messieurs H. and Company did 
 not communicate to the said shippers of the cargo, or to the defendants, 
 who carried on business at Glasgow, as the master knew, the intention of 
 hypothecating the ship, freight, and cargo, or the circumstances which 
 might render such hypothecation advisable or necessary, but, on the con- 
 trary, without reasonable cause or excuse, abstained from so doing, 
 although the comparatively small value of the ship and freight to be 
 earned, rendered it all the more important that such communication should 
 have been made. 
 
 6. A reasonable and proper time was not allowed to elapse between the 
 advertisements for the bottomry loan and the acceptance of Messieurs 
 H. and Company's offer to make such loan. 
 
 {Title.-} 
 
 Reply. 
 
 1. The plaintiffs say that the defendants, since the 31st day of Decem- 
 ber, 1868, have been the only persons forming the firm of T., F., and Co., 
 of Moulmein, mentioned in the third paragraph of the defence. 
 
 2. After the master of the " Onward" put into Port Louis as aforesaid, 
 he employed Messieurs H. and Company, in the claim mentioned, as hia 
 agents, and, by his directions, they, by letter, communicated to the defen- 
 dants' firms at Moulmein and Glasgow the circumstances of the ship's 
 distress, and the estimated amount of her repairs. 
 
 3. The said Messieurs H. and Company, shortly after the said ship was 
 put into their hands at Port Louis, offered the said master, in case he 
 should require them to do so, to make the necessary advances for the ship's 
 repairs, and to take his draft at 90 days' sight on Messrs. B. Brothers, of 
 London, at the rate of 5 per cent, discount for the amount of the advances, 
 together with a bottomry bond on ship, cargo, and freight, as collateral 
 security, the bond to be void should the draft be accepted. The said 
 master, and the said Messieurs H. and Company, by letter, communicated 
 to the owners of the " Onward " the circumstances of the said ship's dis- 
 tress, and the aforesaid offer of the said Messieurs H. and Company, and 
 the said master by his letter requested the said owners to give him their 
 directions on the subject. The said owners shortly after receiving such 
 tetters, by letter communicated with the defendants at Glasgow, and for- 
 warded to them copies of the said lastly-mentioned letters of the said 
 master, and of the said Messieurs H. and Co. 
 
 4. The defendants' houses at Moulmein and Glasgow respectively
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 585 
 
 received the letters referred to in the second paragraph of this reply, in 
 time to have communicated with the said master at Port Louis before the 
 giving of the said bottomry bond. 
 
 5. The defendants received the said copies of letters referred to in 
 paragraph 4 of this reply, in time for them to have communicated thereon 
 with the said master at Port Louis before the giving of the said bond. 
 
 6. The defendants did not at any time answer the said communications 
 of the said Messieurs H. and Company, or in any way communicate or 
 attempt to communicate with the said master, or to direct him not to 
 give, or to prevent him from giving the said bottomry bond on the said 
 cargo. 
 
 7. The said bond was duly advertised for sale, and was subsequently, 
 and after a proper interval had elapsed, sold by auction in the usual way. 
 There were several bidders at the sale, and the said Messieurs H. and 
 Company were the lowest bidders in premium, and the said bond was 
 knocked down to them. The said bond was not advertised for until the 
 said ship was ready for sea, and up to that time the master of the said 
 ship had expected to hear from her owners, and had hoped to be put in 
 funds, and had not finally determined to resort to bottomry of the said ship, 
 or her cargo, or freight. 
 
 8. Save as herein appears, the plaintiffs deny the truth of the several 
 allegations contained in the said Answer. 
 
 [Alote. The facts stated in this reply should, in general, be introduced 
 by amendment into the statement of claim.'] 
 
 [Title.] 
 Rejoinder. 
 The defendants join issue upon the plaintiffs' reply. 
 
 No. 10. 
 
 CHARTER PARTY 
 
 187 . B. No. 
 In the High Court of Justice, 
 Division. 
 
 "Writ issued 3rd August, 1876. 
 Between A.B. and C.D. .... Plaintiffs, 
 
 and 
 E. F. and G.H. - - - - Defendants. 
 
 Statement of Claim. 
 
 1. The plaintiffs were, on the 1st August, 1874, the owners of the 
 steamship " British Queen." 
 
 2. On the 1st August, 1874, the ship being then in Calcutta, a charter- 
 party was there entered into between John Smith, the master, on behalf
 
 586 FORMS UNDER THE SUPREME 
 
 of himself and the owners of the said ship, of the one part, and the 
 defendants of the other part. 
 
 3. By the said charter-party it was agreed, amongst other things, that 
 the defendants should be entitled to the whole carrying power of the said 
 steamship for the period of four months certain, commencing from the 
 said 1st August, 1874, upon a voyage or voyages between Calcutta and 
 Mauritius and back ; that the defendants should pay for such use of the 
 said steamship to the plaintiffs' agents at Calcutta, monthly, the sum of 
 1,000; that the charter should terminate at Calcutta; and that if at the 
 expiration of the said period of four months the said steamship should be 
 upon a voyage, then the defendants should pay pro rata for the hire of 
 the ship up to her arrival at Calcutta, and the complete discharge of her 
 cargo there. 
 
 4. The "British Queen" made several voyages in pursuance of the 
 said charter-party, and the first three monthly sums of 1,000 each were 
 duly paid. 
 
 5. The period of four months expired on the 1st December, 1874, and 
 at that time the steamship was on a royage from Mauritius to Calcutta. 
 She arrived at Calcutta on the 13th December, and the discharge of her 
 cargo there was completed on the 16th December, 1874. 
 
 6. The plaintiffs' agents at Calcutta called upon the defendants to pay 
 to them the fourth monthly sum of 1,000, and a sum of 500 for the 
 hire of the steamship from the 1st to the 16th December, 1874, but the 
 defendants have not paid any part of the said sums. 
 
 The plaintiffs claim 
 
 The sum of 1,500, and interest upon 1,000, part thereof, from the 
 
 1st December, 1874, until judgment. 
 
 The plaintiffs propose that this action should be tried in London. 
 [Title.! 
 
 Statement of Defence. 
 
 1. By the charter-party sued upon it was expressly provided that if 
 any accident should happen to, or any repairs should become necessary to, 
 the engines or boilers of the said steamship, the time occupied in repairs 
 should be deducted from the period of the said charter, and a propor- 
 tionate reduction in the charter money should be made. 
 
 2. On the repairs became necessary to the engines and 
 boilers of the steamship, and ten days were occupied in effecting such 
 repairs. 
 
 3. On the an accident happened to the engines of the 
 steamship at Mauritius, and two days were occupied in effecting the 
 repairs necessary in consequence thereof. 
 
 4. The defendants are therefore entitled to a reduction in the charter 
 money of 400.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 587 
 
 Counter-claim. 
 By -way of set-off and counter claim the defendants claim as follows : 
 
 5. By the charier-party it was expressly provided that the charterers 
 should furnish funds for the steamship's necessary disbursements, except 
 in the port of Calcutta, without any commission or interest on any 
 sum so advanced. 
 
 6. The defendants paid for the necessary disbursements of the ship in 
 the port of Mauritius between the and the , 1874, 
 sums amounting in all to 625. 14*. 6d. 
 
 1. The charter-party also contained an express warranty that the steam- 
 ship was at the date thereof capable of steaming nine knots an hour on a 
 consumption of 30 tons of coal a day, and it was further provided by the 
 charter-party that the charterers should provide coal for the use of the 
 said steamship. 
 
 8. The steamship was at the date of the charter-party only capable of 
 steaming less than eight knots an hour, and that only on a consumption 
 of more than 35 tons of coal a day. 
 
 9. In consequence of the matters mentioned in the last paragraph, the 
 steamship finally arrived at Calcutta at least 15 days later, and remained 
 under charter at least 15 days longer, than she would otherwise have do^e. 
 She was also, during the whole period of the said charter, at sea for a much 
 larger number of days than she would otherwise have been, and consumed 
 a much larger quantity of coal on each of such days than she would 
 otherwise have done, whereby the defendants were obliged to provide for 
 the use of the steamship much larger quantities of coal than they would 
 otherwise have been. 
 
 The defendants claim 
 
 damages in respect of the matters stated in this set-off 
 
 and counter-claim. 
 
 [Title.'] 
 
 Reply. 
 
 1 . The plaintiffs join issue upon the second, third, and fourth paragraphs 
 of the defendants' statement of defence. 
 
 2. With respect to the alleged set-off stated in paragraph 6, the plaintiffs 
 do not admit the correctness of the amount therein stated. And all sume 
 advanced by them for disbursements were paid or allowed to them by 
 the plaintiffs by deducting the amount thereof from the third monthly 
 sum of 1,000, paid (subject to such deduction) to the plaintiffs' agents at 
 Calcutta by the defendants on or about the 12th November, 1874. 
 
 3. "With respect to the alleged breach of warranty and the alleged 
 damages therefrom stated in the 7th, 8th, and 9th paragraphs, the plaintiffs 
 say that the steamship was at the date of the charter-party capable 
 of steaming nine knots an hour on a consumption of 30 tons of 
 coal a day. If the steamship did not, during the said charter, steam more
 
 5S8 FORMS UNDER THE SUPREME 
 
 than eight knots an hour, and that on a consumption of more than 35 
 tons a day, as alleged (which the plaintiffs do not admit), it was in con- 
 sequence of the bad and unfit quality of the coals provided by the 
 defendants for the ship's use. 
 
 [Title.] 
 jRefoinder. 
 
 The defendants join issue upon the plaintiffs' reply to their set-off and 
 counter-claim. 
 
 No. 11. 
 
 COLLISION. 
 
 187 . B. No. 
 In the High Court of Justice, 
 Admiralty Division. 
 
 "Writ issued [ ]. 
 
 THE "AMERICAN." 
 
 Between A.B. and C.D. Plaintiffs, 
 
 and 
 E.F. and G.H. Defendants. 
 
 Statement of Claim. 
 
 1. Shortly before 8 a.m. on the 9th of December 1874, the brigan- 
 tine " Katie," of 194 tons register, of which the plantiffs were owners, 
 manned by a crew of eight hands all told, whilst on a voyage from Dublin 
 to St. John's, Newfoundland, 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. J N., 
 and proceeding at the rate of about five knots and a half per hour. 
 
 3. At such time a steamship under steam and sail, which proved to be 
 the screw steamship " American," was seen at the distance of three or 
 four miles from the " Katie," broad on her port bow, and steering about 
 E. or E. by S. The master of the " Katie " not having been able to 
 take observations for several days, and her chronometer having run down, 
 and the said master wishing to exchange longitudes with the " American," 
 caused an ensign to be hoisted, and marked his longitude by account on 
 a board, which he exhibited over the port side. The " Katie " was kept full 
 and by, and the "American" approached rapidly, and attempted to pass 
 ahead of the " Katie," and caused immediate danger of collision, and 
 although thereupon the helm of the "Katie" was put hard a-port and 
 her mainsheet let go, the " American " with her stem struck the " Katie ' '
 
 COURT OF JUDICATURE ACTS 1873 AND 187o. 589 
 
 on her port side, almost amidships, cutting her nearly in two, and the 
 " Katie " sank almost immediately, her crew being saved by the steamer. 
 
 4. The "American" improperly neglected to keep clear of the 
 " Katie." 
 
 5. The "American" improperly attempted to pass ahead of the 
 " Katie." 
 
 6. The "American" improperly neglected to ease her engines, and 
 improperly neglected to stop and reverse her engines in due time. 
 
 The plaintiff claims . 
 
 1. That it may be declared that the plaintiffs are entitled to the da- 
 mage proceeded for ; 
 
 2. That the bail given by the defendants bo condemned in such 
 damage, and in costs : 
 
 3. That the accounts and vouchers relating to such damage be 
 referred to the Eegistrar assisted by merchants to report the amount 
 thereof : 
 
 4. Such further and other relief as the nature of the case may require 
 
 [Title.] 
 
 Statement of Defence. 
 The defendants say as follows : 
 
 1. The "American" is a screw steamship, of 1,368 tons register with 
 engines of 200-horse power nominal, belonging to the port of Liverpool, 
 and at the time of the occurrences hereinafter mentioned was manned by 
 a crew of 40 hands all told, laden with a cargo of general merchandise, 
 and bound from Port-au-Prince in the West Indies to Liverpool. 
 
 2. About 8.5 a.m. on the 28th of November 1874, the "American" was 
 in latitude 46 N., longitude 38 16' W., steering E. by S. true magnetic, 
 making under all sail and steam about 12 knots an hour, the wind being 
 about S.W. by S. true magnetic, blowing a strong breeze and the weather 
 hazy, when a vessel, which afterwards proved to be the brigantine " Katie," 
 was observed on the " American's " starboard bow about four miles distant, 
 bearing about S.E. by E. true magnetic, close-hauled to the wind, and 
 steering a course nearly parallel to that of the "American." 
 
 3. The " American" kept her course, and when the " Katie " was about 
 three miles distant her ensign was observed by those on board the 
 " American" run up to the main, and she was seen to have altered her 
 course, and to be bearing down towards the " American." The " Ame- 
 rican's" ensign was afterwards run up, and her master, supposing that 
 the "Katie" wanted to correct her longitude, or to speak the "Ame- 
 rican," continued on his course expecting that the " Katie," when she 
 had got sufficiently close to speak or show her black board over her star- 
 board side, would luff to the wind, and pass to windward of the " Ame-
 
 590 FORMS UNDER THE SUPREME 
 
 4. The master of the "American" -watched the "Katie" as she 
 continued to approach the "American," and when she had approached 
 as near as he deemed it prudent for her to come, he waved to her to luff, 
 and shortly afterwards, on his ohserving her to be attempting to cross 
 the bows of the " American," the helm of the latter was immediately 
 put to starboard, and engines stopped and reversed full speed ; but not- 
 withstanding, the " American" with her stem came into collision with the 
 port side of the " Katie," a little forward of the main rigging. 
 
 5. The "American's" engines were then stopped, and when the crew 
 of the " Katie " had got on board of the " American," the latter's engines 
 were reversed to get her clear of. the " Katie," which sunk under the 
 " American's " bows. 
 
 6. The "Katie" improperly approached too close to the "American." 
 
 7. Those on board the "Katie" improperly neglected to luff, and to 
 pass to windward of the " American." 
 
 8. Those on board the "Katie" improperly attempted to cross the 
 bows of the " American." 
 
 9. Those on board the " Katie " improperly ported her helm before the 
 said collision. 
 
 10. Those on board the "Katie" improperly neglected to starboard 
 her helm before the said collision. 
 
 [ Title.] 
 Reply. 
 The plaintiffs join issue upon the defendants' statement of defence. 
 
 No. 12. 
 EQUIPMENT OF SHIP. 
 
 117 B. N 
 
 In. the High Court of Justice, 
 Admiralty Division. 
 
 "Writ issued [ 
 
 THE "TWO ELLENS." 
 Between A.B. and C.D. - - - Plaintiffs, 
 
 and 
 
 E-F. - - ... Defendant. 
 Statement of Claim. 
 
 1. The said vessel waa and is a British Colonial vessel, belonging to 
 the Port of Digby, in Nova Scotia, of which no owner or part owner wa 
 at the time of the commencement of this action or is domiciled in 
 England or Wales. 
 
 2. At the time of the commencement of this action the said vessel was 
 under arrest of this Court.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 591 
 
 3. About the month of February, 1868, the said vessel was lying in the 
 Port of London, in need of repairs, and of being equipped and supplied 
 with certain other necessaries. 
 
 4. By the order of Messrs. K. L., who were duly authorised, the 
 plaintiffs equipped and repaired the said vessel as she needed, and 
 provided the vessel with necessaries, and there is now due to the plaintiffs 
 for such necessary repairing and equipping, and other necessaries, the sum 
 of 305. 3*., together with interest thereon from the 19th day of 
 February, 1868. 
 
 The plaintiffs claim : 
 
 1. Judgment for the said sum of 305. 3*., with such interest thereon 
 
 as aforesaid until judgment : 
 
 2. The condemnation of the ship and the defendant and his bail therein 
 
 and in the costs of this suit : 
 4. Such further relief as the nature of the case requires. 
 
 [Title.] 
 Statement of Defence. 
 
 1. By an instrument of mortgage, in the form and recorded as 
 prescribed by the Merchant Shipping Act, 1854, bearing date the 9th of 
 March, 1867, and executed by C. M., blacksmith., D. F., master mariner, 
 and "W. H., farmer, all of "Weymouth, in the county of Digby, in Nova 
 Scotia, the registered owners of 64/64ths parts or shares in the vessel, the 
 said C. M., D. F., and "W. H. mortgaged 64/64ths parts or shares in the 
 vessel, of which the said D. F. was also master, to G. T., of Nova Scotia, 
 in consideration of the sum of 5,000 dollars advanced by him to the said 
 owners, and for the purpose of securing the repayment by them to him of 
 the said sum with interest thereon. 
 
 2. By an instrument of transfer, dated the 16th of July, 1868, in the 
 form prescribed by the said Act, and executed by &. T., in consideration 
 of the sum of 5,000 dollars to G. T. paid by the defendant, G. T. 
 transferred to the defendant the mortgage security. 
 
 3. The said sum of 5,000 dollars, with interest thereon, still remains due 
 on the said security. 
 
 4. The vessel was not under the arrest of this Court at the time of the 
 commencement of this action. 
 
 5. The vessel did not need to be equipped or repaired as in the fourth 
 paragraph of the plaintiffs claim mentioned, and she did not at the time 
 of the supply of the articles referred to in the said fourth paragraph as 
 "necessaries" stand in need of such articles. On the contrary, the said 
 vessel could have gone to sea and proceeded on and prosecuted her voyage 
 without such equipments, repairs, and articles referred to as aforesaid and 
 auch equipments, repairs, and other articles were done and effected and
 
 592 FORMS UNDER THE SUPREME 
 
 supplied for the purpose of reclassing the said vessel, and not for any other 
 purpose ; and the claim of the plaintiff's is not a claim for necessaries 
 within the meaning of the Admiralty Court Act, 1861, s. 5. 
 
 6. The alleged necessaries were not supplied on the credit of the said 
 vessel, but upon the personal credit of J. B., who was the broker for the 
 vessel, and upon the agreement that the plaintiffs were not to have 
 recourse to the vessel. 
 
 7. The defendant did not, nor did G. T., in any way order, authorise, 
 or become liable for, and neither of them is in any way liable in respect of 
 the said alleged supplies or any part thereof, and the said vessel was at 
 the time of the commencement of this action and she still is of a less value 
 than the amount which, irrespective of the sums referred to in the next 
 article of this Answer, is due to the defendant on the said mortgage 
 security. 
 
 8. The defendant, in order to save the vessel from being sold by this 
 Court at the instance of certain of her mariners having liens on the said 
 vessel for their wages, has been compelled to pay the said wages, and he 
 claims, if necessary, to be entitled to stand in the place of such mariners, 
 or to add the amounts so paid by him for wages to the amount secured 
 by the said mortgage, and to have priority in respect thereof over the 
 claim of the plaintiffs. 
 
 [Title.] 
 
 Reply. 
 
 1. The plaintiffs admit that 64/64rth shares in the said ship the " Two 
 Ellens" were on or about the 9th day of March, 1867, mortgaged by the 
 said C. M., D. F., and "W. H., all of "Weymouth, in the county of Digby, 
 Nova Scotia, to the said G. T. 
 
 2. Save as afore-mentioned, all the several averments in the said 
 Answer contained are respectively untrue. 
 
 3. If there was or is any such instrument of transfer as is mentioned in 
 the second article of the said Answer, the same has never been registered 
 according to the provisions of the Merchant Shipping Act, 1854. 
 
 4. The said G. T. has never been domiciled in or resided in the United 
 Kingdom, and is now resident in Nova Scotia, and the registered owners 
 of the said vessel in the first paragraph of the said Defence mentioned 
 were always and are domiciled in Nova Scotia, and resident out of the 
 United Kingdom. 
 
 [Title.'} 
 
 Rejoinder. 
 
 The defendant joins issue upon the third and fourth paragraphs of the 
 Reply.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 593 
 
 No. 13. 
 FALSE IMPRISONMENT. 
 
 187 . B. No. 
 
 In the High Court of Juscice, 
 
 Division. 
 
 Writ issued 3rd August, 1876. 
 
 Between A.B. . . - - - - - Plaintiff, 
 and 
 
 E.F. Defendant. 
 
 Statement of Claim. 
 
 1. The plaintiff is a journeyman painter. The defendant is a builder, 
 having his building yard, and carrying on business at and 
 for six months before and up to the 22nd August, 187 , the plaintiff was 
 in the defendant's employment as a journeyman painter. 
 
 2. On the said 22nd August, 187 , the plaintiff came to work as usual 
 in the defendant's yard, at about six o'clock in the morning. 
 
 3. A few minutes after the plaintiff had so come to work the defen- 
 dant's foreman X.Y., who was then in the yard, called the plaintiff to 
 him, and accused the plaintiff of having on the previous day stolen a 
 quantity of paint, the property of the defendant, from the yard. The 
 plaintiff denied the charge, but X. Y. gave the plaintiff into the custody 
 of a constable, whom he had previously sent for, upon a charge of stealing 
 paint. 
 
 4. The defendant was present at the time when the plaintiff was given 
 into custody, and authorised and assented to his being so given into 
 custody ; and in any case, X.Y., in giving him into custody, was acting 
 within the scope and in the course of his employment as the defendant's 
 foreman, and for the purposes of the defendant's business. 
 
 5. The plaintiff upon being so given into custody, was taken by the 
 said constable a considerable distance through various streets, on foot, 
 to the police station, and he was there detained in a cell till 
 late in the same afternoon, when he was taken to the police 
 court, and the charge against him was heard before the magistrate then 
 sitting there, and was dismissed. 
 
 6. In consequence of being so given into custody, the plaintiff 
 suffered annoyance and disgrace, and loss of time and wages, and 
 loss of credit and reputation, and was thereby unable to obtain any 
 employment or earn any wages for three months. 
 
 The plaintiff claims damages. 
 
 The plaintiff proposes that this action should be tried in Middlesex. 
 
 [Title.] 
 
 Statement of Defence. 
 
 1. The defendant denies that he was present at the time when the 
 plaintiff was given into custody, or that he in any way authorised or 
 
 38
 
 594 7M . FORMS UNDER THE SUPREME 
 
 assented to his being given into custody. And the said X.Y., in giving 
 the plaintiff into custody, did not act within the scope or in the course 
 of his employment as the defendant's foreman, or for the purposes of the 
 defendant's business. 
 
 2. At some time about five or six o'clock on the being the 
 evening before the plaintiff was given into custody, a large quantity of 
 paint had been feloniously stolen by some person or persons from a shed 
 upon the defendant's yard and premises. 
 
 3. At about 5.30 o'clock on the evening of the the 
 plaintiff, who had left work about half an hour previously, was seen 
 coming out of the shed when no one else was in it, although his work 
 lay in a distant part of the yard from and he had no business in or near 
 the shed. He was then seen to go to the back of a stack of timber in 
 another part of the yard. Shortly afterwards the paint was found to 
 have been stolen, and it was found concealed at the back of the stack of 
 timber behind which the plaintiff had been seen to go. 
 
 4. On the following morning, before the plaintiff was given into cus- 
 tody, he was asked by X. Y. what he had been in the shed and behind 
 the stack of timber for, and he denied having been in either place. X. Y. 
 had reasonable and probable cause for suspecting, and did suspect that 
 the plaintiff was the person who had stolen the paint, and thereupon gave 
 him into custody. 
 
 "ftiluirlcj nili no [Title.] 
 
 The plaintiff joins issue upon the defendant's statement of defence. 
 
 No. 14. 
 FORECLOSURE. 
 
 1876. W. No. 672. 
 In the High Court of Justice, 
 
 90 ri 
 
 
 Chancery Division. 
 
 ..., ;.. [Name of Judge. ,] 
 
 "Writ issued [ ] 
 
 fiilK :,,- Between R. W,. .,* a } - - - Plaintiff, 
 
 and 
 Xiia ornkfo - andJ. B. - - c:-*^ - Defendants. 
 
 Statement of Claim. 
 
 1. By an indenture dated the 25th of March, 1876, made between the 
 defendant 0. S. of the one part, and the plaintiff of the other part, the 
 defendant 0. S., in consideration of the sum of 10,000 paid to him by 
 the plaintiff, conveyed to the plaintiff and his heirs a farm containing 
 398 acres, situate in the parish of B., in the county of D., with all the 
 coal mines, seams of coal, and other mines and minerals in and under
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 595 
 
 the same, subject to a proviso for a redemption of the same premises on 
 payment by the defendant 0. S., his heirs, executors, administrators, or 
 assigns, to the plaintiff, his executors, administrators, or assigns, of the 
 sum of 10,000, with interest for the same in the meantime at the rate 
 of 4 per cent, per annum, on the 25th day of September then next. 
 
 2. By an indenture dated the 1st day of April, 1867, made between the 
 defendant 0. S. of the one part, and the defendant J. B. of the other 
 part, the defendant O. S. conveyed to the defendant J. B. and his heirs 
 the hereditaments comprised in the hereinbefore stated security of the 
 plaintiff, or some parts thereof, subject to the plaintiff's said security, 
 and subject to a proviso for redemption of the same premises on pay- 
 ment by the defendant O. S., his heirs, executors, administrators, or 
 assigns, to the defendant J. B., his executors, administrators, or assigns, 
 of the sum of 16,000, with interest for the same in the meantime at 
 the rate of 5 per cent, per annum. 
 
 3. The whole of the said sum of 10,000, with an arrear of interest 
 thereon, remains due to the plaintiff on his said security. 
 
 The plaintiff claims as follows : 
 
 1. That an account may be taken of what is due to the plaintiff for 
 principal money and interest on his said security, and that the 
 defendants may be decreed to pay to the plaintiff what shall be 
 found due to him on taking such account, together with hia costs 
 of this action, by a day to be appointed by the court, the plaintiff 
 being ready and willing, and hereby offering, upon being paid the 
 principal money, interest, and costs, at such appointed time, to 
 convey the said mortgaged premises as the court shall direct. 
 
 2. That in default of such payment the defendants may be fore- 
 closed of the equity of redemption in the mortgaged premises. 
 
 3. Such further or other relief as the nature of the case may require. 
 
 1876. W. 672. 
 In the High Court of Justice, 
 
 Chancery Division. 
 [Xaine of Judge.} 
 
 Between K. W. Plaintiff, 
 
 and 
 
 0. S. and J. B. Defendants. 
 
 (by original action,) 
 and between the said 0. S. - - - - Plaintiff, 
 
 and 
 The said E, W. and J. B., and J. W. Defendants. 
 
 (by counter-claim.) 
 
 The Defence and Counter-claim of the above-named 0. S. 
 1 . This defendant does not admit that the contents of the indenture of
 
 596 FORMS UNDER THE SUPREME 
 
 the 25th day of March, 1867, in the plaintiff's statement of complaint men- 
 tioned, are correctly stated therein. 
 
 2. The indenture of the 1st day of April, 1867, in the statement of claim 
 mentioned, was not a security for the sum of 15,000, and interest at 5 
 per cent, per annum, but for the sum of 14,000 only, with interest at the 
 rate of 4. 10s. per cent, per annum. 
 
 3. This defendant submits that under the circumstances in his counter- 
 claim mentioned, the said indentures of the 25th day of March, 1867, and 
 the 1st day of April, 1867, did not create any effectual security upon 
 the mines and minerals in and under the lands in the same indenture! 
 comprised, and that the same mines and minerals ought to be treated as 
 ezcepted out of the said securities. 
 
 And by way of counter-claim this defendant states as follows : 
 
 1. At the time of the execution of the indenture next hereinafter 
 stated, J. C. A. was seized in fee simple in possession of the lands 
 described in the said indentures, and the mines and minerals in and 
 under the same. 
 
 2. By indenture dated the 24th of March, 1860, made between the 
 said J. C. A. of the first part, E. his wife, then E. S., spinster, of 
 the second part, and this defendant and the above-named J. W. of 
 the third part, being a settlement made in contemplation of the 
 marriage, shortly after solemnised, between the said J. C. A. and 
 his said wife, the said J. C. A. granted to this defendant and the 
 said J. W., and their heirs, all the coal mines, beds of coal, and 
 other the mines and minerals under the said lands, with such 
 powers and privileges as in the now-stated indenture mentioned, 
 for the purpose of winning, working, and getting the same mines 
 and minerals, to hold the same premises to this defendant and the 
 said J. W. and their heirs to the use of the said J. C. A., his heirs 
 and assigns, till the solemnization of the said marriage, and after 
 the solemnization thereof to the use of this defendant and the said 
 J. W., their executors and administrators, for the term of 500 
 years, from the day of the date of the now stating indenture, upon 
 the trusts therein mentioned, being trusts for the benefit of the 
 said J. C. A., and his wife and the children of their marriage, and 
 from and after the expiration or other determination of the said 
 term of 500 years, and in the meantime subject thereto, to the use 
 of the said J. C. A., his heirs and assigns for ever. 
 
 3. By indenture dated the 12th of May, 1860, made between the said 
 J. C. A. of the one part, and W. N. of the other part, the said 
 J. C. A. granted to the said "W. N. and his heirs the said lands, 
 except the coal mines, beds of coal, and other mines and minerals 
 thereunder, to hold the same premises unto and to the use of the
 
 COUUT OF JUDICATURE ACTS 1873 AND 1875. 597 
 
 said W. N"., his heirs and assigns for ever, by way of mortgage, for 
 securing the payment to the said W. N., his executors, administra- 
 tors, or assigns, of the sum of 26,000 with interest as mentioned. 
 
 4. On the 14th of January, 1864, the said J. A. C. was adjudicated a 
 bankrupt, and shortly afterwards J. L. was appointed creditors 
 assignee of his estate. 
 
 5. Some ti me after the said bankruptcy, the said W. N., under a power 
 of sale in his said mortgage deed, contracted with this defendant 
 for the absolute sale to this defendant of the property comprised 
 in his said security for an estate in fee simple in possession, free 
 from incumbrances, for the sum of 26,000, and the said J. L., as 
 such assignee as aforesaid, agreed to join in the conveyance to this 
 defendant for the purpose of signifying his assent to such sale. 
 
 6. By indenture dated the 1st of September, 1866, made between the 
 said W. N. of the first part, the said J. L. of the second part, the 
 said J. C. A. of the third part, and this defendant of the fourth part, 
 reciting the said agreement for sale, and reciting that the said J. L. 
 being satisfied that the said sum of 26,000 was a proper price, 
 had with the sanction of the Court of Bankruptcy, agreed to con- 
 firm the said sale, it was witnessed that in consideration of the 
 sum of 26,000, with the privity and approbation of the said J. L., 
 paid by this defendant to the said W. N., he the said W. N. 
 granted, and the said J. C. A. ratified and confirmed to this 
 defendant and his heirs, all the hereditaments comprised in the said 
 security of the 12th day of May 1860, with their rights, members, 
 and appurtenances, and all the estate, right, title, and interest of 
 them, the said W. N. and J. C. A. therein, to hold the same pre- 
 mises unto and to the use of this defendant, his heirs, and assigns 
 for ever. 
 
 7. The sale to this defendant was not intended to include anything not 
 included in the security of the 12th of May, 1860, and the said J. L. 
 only concurred therein to signify his approval of the said sale, and 
 did not purport to convey any estate vested in him ; and the lastly 
 hereinbefore stated indenture did not vest in this defendant any 
 estate in the said mines and minerals. 
 
 8. The plaintiff and the defendant J. B. respectively had before they 
 advanced to this defendant the moneys lent by them on their 
 securities in the plaintiff's claim mentioned, full notice that the 
 mines and minerals under the said lands did not belong to this 
 defendant. This fact appeared on the abstracts of title delivered 
 to them before the preparation of their said securities. A valuation 
 of the property made by a surveyor was furnished to them respec- 
 tively on behalf of this defendant before they agreed to advance
 
 598 FORMS UNDER THE SUPREME 
 
 their money on their securities ; but although the said lands are 
 in a mineral district, the mines and minerals were omitted from 
 Buch valuation, and they respectively knew at the time of taking 
 their said securities that the same did not include any interest in 
 the mines and minerals. 
 
 9. At the time when the securities of the plaintiff and the defendant 
 J. B. were respectively executed, the plaintiff and the defendant 
 J. B. respectively had notice of the said indenture of settlement of 
 the 24th day of March, 1860. 
 
 10. At the time when the plaintiff's security was executed, the mines 
 and minerals under the said lands, with such powers and privileges as 
 aforesaid, were vested in this defendant and the said J. W. for the 
 residue of the said term of 500 years, and subject to the said term, 
 the inheritance in the same mines, minerals, powers and privileges 
 was vested in the said J. L. as such assignee as aforesaid. 
 i 1 . The said security to the plaintiff was by mistake framed so as to pur- 
 port to include the mines and minerals amongst the said lands, and 
 by virtue thereof the legal estate in moiety of the said mines and 
 minerals became and now is vested in the plaintiff for the residue 
 of the said term of 500 years. 
 The defendant O. S. claims as follows : 
 
 1. That it may be declared that neither the plaintiff nor the defendant 
 J. B. has any charge or lien upon that one undivided moiety, which 
 in manner aforesaid became vested in the plaintiff for the residue of 
 the said term of 500 years, of and in the mines and minerals in 
 and under the lands mentioned in the plaintiff's said security. 
 
 2. That it may be declared that the said mines and minerals, rights, 
 and privileges which by the said indenture of settlement were 
 vested in the defendant O. S. and the said J. W. for the said 
 term of 500 years, upon trust as therein mentioned, ought to be so 
 conveyed and assured as that the same may become vested in the 
 defendant O. S. and the said J. W. for all the residue of the said 
 term upon the trusts of the said settlement. 
 
 3. That the said E. W. and J. W. may be decreed to execute all 
 such assurances as may be necessary for giving effect to the declara- 
 tion secondly hereinbefore prayed. 
 
 4. To have such further or other relief as the nature of the case may 
 require.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 59S 
 
 1876. W. 672. 
 In. the High Court of Justice, 
 
 Chancery Division. 
 
 [Name of Judge.~\ 
 
 Between R. "W. Plaintiff, 
 
 and 
 0. S. and J. B. - - Defendants, 
 
 (by original action) 
 And between the said 0. S. - - - - Plaintiff, 
 
 and 
 
 The said B. W., and J. B., and J. W - Defendants, 
 (by counter-claim.) 
 
 The Reply of the Plaintiff R. W. 
 
 1. The plaintiff joins issue with the defendants upon their several de- 
 fences, and in reply to the statements alleged by the defendant 0. S., by 
 way of counter-claim, the plaintiff says as follows : 
 
 1 . The plaintiff does not admit the execution of any such indenture 
 as is stated in the said counter-claim to bear date the 24th of 
 March, 18oO. 
 
 2. The plaintiff does not admit that the indenture of the 12th of 
 May, 1860, is stated correctly in the statement of claim. 
 
 3. When the defendant 0. S., in the year 1866, applied to the plain- 
 tiff to advance him the sum. of 10,000, he offered to the plaintiff as 
 a security the lands which were afterwards comprised in the inden- 
 ture of the 25th of March, 1867, including the mines and minerals 
 which he now alleges were not to form part of the security, and the 
 plaintiff agreed to lend the said sum upon the security of the said 
 lands, including such mines and minerals. During the negotiation 
 for the said loan a valuation of the property to be included in the 
 mortgage was delivered to the plaintiff on behalf of the said 
 defendant. Such valuation included the mines and minerals ; and 
 the plaintiff consented to make the loan on the faith of such valu- 
 ation. The plaintiff did not know when he took his security that 
 it did not include any interest in the said mines and minerals ; on 
 the contrary, he believed that the entirety of such mines and 
 minerals was to be included therein. 
 
 4. The plaintiff does not admit the contents of the indenture of the 
 1st of September, 1866, to be as alleged, or that it was so framed 
 as not to include the said mines and minerals, or that it was not 
 intended to include anything not included in the security of the 
 12th of May, 1860, or that J. L. in the connter-claim named only 
 concurred therein to signify his approval of the said sale, and did 
 not purport to convey any estate vested in him.
 
 600 FORMS UNDER THE SUPREME 
 
 5. Save so far as the plaintiff's solicitor may have had notice by 
 means of the abstract of title that the mines and minerals under 
 the said lands did not belong to the defendant 0. S., the plaintiff 
 had not any notice thereof, and he does not admit that it appeared 
 from the abstract of title that such was the case. The mines were 
 not omitted from any valuation delivered to the plaintiff as men- 
 tioned in the counter claim. 
 
 6. The plaintiff admits that when he took his security he was aware 
 that there was indorsed on the deed by which the said lands were 
 conveyed by J. C. A. in the counter-claim named a notice of the 
 settlement of 24th March, 1860, but he had no further or other 
 notice thereof, and though his solicitor inquired arter such settle- 
 ment, none was ever produced. 
 
 7. The plaintiff submits that if it shall appear that no further interest 
 in the said mines and minerals was conveyed to him by his said 
 secuiity than one undivided moiety of a term of 500 years therein, 
 as alleged by the said counter-claim, such interest is effectually 
 included in the plaintiff's said security, and that he is entitled to 
 foreclose the same. 
 
 No. 15. 
 FRAUD. 
 
 187 . B. No. 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 3rd August, 1876. 
 
 Between A.E. Plaintiff, 
 
 and 
 E.F. ------- Defendant. 
 
 Statement of Claim. 
 
 1. In or about March, 1875, the defendant caused to be in- 
 serted in the " Daily Telegraph" Newspaper an advertisement, in which 
 he offered for sale the lease, fixtures, fittings, goodwill, and stock-in- 
 trade of a baker's shop and business, and described the same as an in- 
 creasing business, and doing twelve sacks a week. The advertisement 
 directed application for particulars to be made to X. Y. 
 
 2. The plaintiff having seen the advertisement applied to XT., who 
 placed him in communication with the defendant, and negotiations ensued 
 between the plaintiff and the defendant for the sale to the plaintiff of the 
 defendant's bakery at with the lease, fixtures, fitlings, 
 stock-in-trade, and goodwill. 
 
 3. In the course of these negotiations the defendant repeatedly stated 
 to the plaintiff that the business was a steadily increasing business, and 
 that it was a business of more than twelve sacks a week.
 
 COURT OF JUDICATURE ACTS 1873 ASD 1875. 601 
 
 4. On the 5th of April, 1875, the plaintiff, believing the said statements 
 of the defendant to he true, agreed to purchase the said premises from the 
 defendant for 500, and paid to him a deposit of 200 in respect of the 
 purchase. 
 
 5. On the loth April the purchase was completed, an assignment of the 
 lease executed, and the halance of the purchase-money paid. On the 
 same day the plaintiff entered into possession. 
 
 6. The plaintiff soon afterwards discovered that at the time of 
 the negotiations for the said purchase by him and of the said 
 agreement, and of the completion thereof, the said business was and had 
 long been a declining business ; and at each of those times, and for a long 
 time before, it had never been a business of more than 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 hereinbefore men- 
 tioned, well knowing them to be false, and fraudulently, with the inten- 
 tion of inducing the plaintiff to make the said purchase on the faith of 
 them. 
 
 The plaintiff claims damages. 
 
 Statement 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 through- 
 out the whole of the transactions between the plaintiff and defendant, 
 and down to the completion of the purchase and the relinquishment by 
 the defendant of the said shop and business to the plaintiff, the said busi- 
 ness was an increasing business, and was a business of over twelve sacks a 
 week. And the defendant denies the allegations of the 6th paragraph of 
 the statement of claim. 
 
 2. The defendant repeatedly during the negotiations 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 
 and from which the nature, extent, and value thereof could be fully seen, 
 and those books were examined for that purpose by the plaintiff, and by 
 an accountant on his behalf. And the plaintiff made the purchase in 
 reliance upon his own judgment, and the result of his own inquiries and 
 investigations, and not upon any statement or representation whatever of 
 the defendant.
 
 002 FORMS UNDER THE SUPREME 
 
 [Title.] 
 
 Reply. 
 
 The plaintiff joins issue upon the defendant's statement of defence. 
 
 No. 16. 
 
 GUARANTEE. 
 
 In the High Court of Justice, 187 . B. No. 
 
 Division. 
 
 Writ issued 3rd August, 1876. 
 
 Between A.B. and C.D. Plaintiffs, 
 
 and 
 
 E.F. and O.S. Defendants. 
 
 Statement of Claim. 
 
 1. The plaintiffs are brewers, carrying on their business at 
 
 under the firm of X. Y. $ Co. 
 
 2. In the month of March, 1872, M.N. was desirous of entering into 
 the employment of the plaintiffs as a traveller and collector, and it was 
 agreed between the plaintiffs and the defendants M.N., that the plaintiffs 
 should employ M.N. upon the defendant entering into the guarantee 
 hereinafter mentioned. 
 
 3. An agreement in writing was accordingly made and entered into, on 
 or about the 30th March, 1872, between the plaintiffs and the defendant, 
 whereby in consideration that the plaintiffs would employ M.N. as their 
 collector the defendant agreed that he would be. answerable for the due 
 accounting by M.N. to the plaintiffs for and the due payment over by 
 him to the plaintiffs of all moneys which he should receive on their 
 behalf as their collector. 
 
 4. The plaintiffs employed M.N. as their collector accordingly, and he 
 entered upon the duties of such employment, and continued therein 
 down to the 31st of December, 1873. 
 
 5. At various times between the 29th of September and the 2oth of 
 December, 1873, M.N. received on behalf of the plaintiffs and as their 
 collector sums of money from debtors of the plaintiffs amounting in the 
 whole to the sum of 950 ; and of this amount M.N. neglected to 
 account for or pay over to the plaintiffs sums amounting in the whole to 
 227, and appropriated the last mentioned sums to his own use. 
 
 6. The defendant has not paid the last-mentioned sums, or any part 
 thereof to the plaintiffs. 
 
 The plaintiffs claim : 
 
 No. 17. 
 
 INTEREST SUIT, PROBATE. 
 
 In the High Court of Justice, 187 . B. No. 
 
 Probate Division. 
 
 Between A.B. ...... Plaintiff. 
 
 and 
 C.D. Defendant.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 603 
 
 Statement of Claim. 
 
 1. M.N., late of No. High Street, Putney, in the County of Surrey, 
 grocer, deceased, died on or about the day of at No. 1, 
 High Street, Putney, aforesaid, a widower, without child, parent, brother 
 or sister, uncle or aunt, nephew or niece. 
 
 2. The plaintiff is the cousin-german, and one of the next of kin of the 
 deceased. 
 
 The plaintiff claims : 
 
 That the court decree to him a grant of letters of administration of 
 the personal estate and effects of the said deceased as his lawful 
 cousin-german, and one of his next of kin. 
 [Title.] 
 Defence. 
 
 1. The defendant admits that M.N. died a widower, without child, 
 parent, brother or sister, uncle or aunt, or niece, but he denies that he 
 died without nephew. 
 
 2. The deceased had a brother named G.B., who died in his lifetime. 
 
 3. G.B. was married to E.H. in the parish church of in the 
 county of on the day of and had issue of 
 such marriage, the defendant, who was born in the month of 
 
 and is the nephew and next o-f kin of the deceased. 
 The defendant therefore claims : 
 
 That the court pronounce that he is the nephew and next of kin of 
 the deceased, and as such entitled to a grant of letters of adminis- 
 tration of the personal estate and effects of the deceased. 
 [Title.'] 
 Reply. 
 
 1 . The plaintiff denies that G.B. was married to E.H. 
 
 2. He also denies that the defendant is the issue of such marriage. 
 
 No. 18. 
 
 LANDLORD AND TENANT. 
 
 187. B. No. 
 
 In the High Court of Justice, 
 Division. 
 
 "Writ issued 3rd August, 1876. 
 
 Between A. B. Plaintiff, 
 
 and 
 C.D. Defendant. 
 
 Statement of Claim. 
 
 1 . On the day of the plaintiff, by deed, let to the 
 
 defendant a house and premises, No. 52, Street, in the city of
 
 604 FORMS UNDER THE SUPREME 
 
 London, for a term of 21 years, from the day of , at the 
 
 yearly rent of 1201., payable quarterly. 
 
 2. By the said deed, the defendant covenanted to keep the said house 
 and premises in good and tenantable repair. 
 
 3. The said deed also contained a clause of re-entry, entitling the 
 plaintiff to re-enter upon the said house and premises, in case the rent 
 thereby reserved, whether demanded or not, should be in arrear for 21 
 days, or in case the defendant should make default in the performance of 
 any covenant upon his part to be performed. 
 
 4. On the 24th June, 187 , a quarter's rent became due, and on the 
 29th of September, 187 , another quarter's rent became due; on the 
 21st October, 187 , both had been in arrear for 21 days, and both are 
 still due. 
 
 5. On the same 21st of October, 187 , the house and premises were 
 not, and are not now in good or tenantablo repair, and it would require 
 the expenditure of a large sum of money to reinstate the same in good 
 and tenantable repair, and the plaintiff's reversion is much depreciated in 
 value. 
 
 The plaintiff claims : 
 
 1 . Possession of the said house and premises. 
 
 2. for arrears of rent. 
 
 3. damages for the defendant's breach of his covenant 
 repair. 
 
 4. for the occupation of the house and premises, from 
 the 29th of September, 187 , to the day of recovering possession. 
 
 The plaintiff proposes that this action should be tried in London. 
 
 No. 19. 
 NECESSARIES FOR SHIP. 
 
 187 . B. No. 
 
 In the High Court of Justice, 
 Admiralty Division. 
 
 Writ issued [ ]. 
 
 THE "ENTERPRISE." 
 Between A.B. and C.D. .... Plaintiffs, 
 
 and 
 
 E.F. and G.H. .... Defendants. 
 
 Statement of Claim. 
 
 1. The plaintiffs were at the time hereinafter stated, and are engineers 
 and ironfounders, carrying on business at Liverpool, in the county of 
 Lancaster. 
 
 2. In the month of January, 1872, whilst the above-named steamship, 
 " Enterprise," belonging to the port of London, was in the port of Liver-
 
 COURT OF JUDICATURE ACTS 1873 AND 1876. 605 
 
 pool, the plaintiffs, having received orders from the master in that 
 behalf, executed certain necessary work to her, and supplied her with 
 certain necessary stores and materials, and caused her to he supplied 
 upon their credit with certain necessary work, labour, materials, and 
 necessaries, and thereby supplied the said ship with necessaries within 
 the meaning of the fifth section of the Admiralty Court Act, 1861. 
 
 3. There is due to the plaintiffs in respect of such supply of necessaries 
 to the said ship the sum of 577. 2s. 6d., and the plaintiffs cannot obtain 
 payment thereof without the assistance of the Court. 
 The plaintiffs claim : 
 
 1. Judgment pronouncing for the claim of the plaintiffs : 
 
 2. The condemnation of the defendants, and their bail therein, with 
 costs : 
 
 3. A reference, if necessary, of the claim of the plaintiffs to the regis- 
 trar, assisted by assessors, to report the amount thereof : 
 
 4. Such further relief as the nature of the case requires. 
 
 \_Title.~\ 
 
 Defence. 
 
 1. The defendants deny the allegations contained in the third para- 
 graph of the statement of claim. 
 
 2. The defendants admit that the plaintiffs executed certain work to 
 the said ship, and supplied her with certain materials, but they say that 
 a portion of the work so executed was executed badly and insufficiently, 
 and of the materials so supplied, some were bad and insufficient, and a 
 portion of the work in the claim mentioned was done in and about alter- 
 ing and endeavouring to make good such bad and insufficient work and 
 materials. The defendant has paid in respect of the work and materials 
 in the claim mentioned the sum of 356. 17s. 9d., and the said sum is 
 sufficient to satisfy the claims of the plaintiffs. 
 
 3. The defendants deny the allegations contained in the second para- 
 graph of the claim so far as they relate to any claim beyond the said sum 
 of 356. 17s. 9d., and say that if the plaintiffs did execute any work or 
 did supply any materials other than the work and materials mentioned in 
 the second paragraph of this defence such work was not necessary work ; 
 and such materials were not necessary materials, within the meaning 
 of the fifth section of the Admiralty Court Act, 1861, and were not sup- 
 plied in such circumstances as to render the defendants liable to pay 
 for the same. 
 
 [Title.} 
 
 Etply. 
 1. The defendants join issue upon the statement of defence,
 
 606 
 
 FORMS UNDER THE SUPREME 
 
 No. 20. 
 
 NEGLIGENCE. 
 
 In the High Court of Justice, 1 87 B. No 
 
 Division. 
 
 Writ issued 3rd August, 1876. 
 Between A.B. - - Plaintiff, 
 
 and 
 
 E.F. - Defendant. 
 
 Statement of Claim. 
 
 1. The plaintiff is a shoemaker, carrying on business at 
 The defendant is a soap and candle manufacturer, of 
 
 2. On the 23rd May, 1875, the plaintiff was walking eastward along 
 the south side of Fleet Street, in the city of London, about three o'clock in 
 the afternoon. He was obliged to cross Street, which is a street 
 running into Fleet Street at right angles on the south side. While he 
 was crossing this street, and just before he could reach the foot pavement 
 on the further side thereof, a two-horse van of the defendant's, under the 
 charge and control of the defendant's servants, was negligently, suddenly, 
 and without any warning, turned at a rapid and dangerous pace out of 
 Fleet Street into Street. The pole of the van struck 
 the plaintiff and knocked him down, and he was much trampled by the 
 horses. 
 
 3. By the blow and fall and trampling the plaintiff's left arm was 
 broken, and he was bruised and injured on the side and back, as well as 
 internally, and in consequence thereof the plaintiff was for four months ill 
 and in suffering, and unable to attend to his business, and incurred heavy 
 medical and other expenses, and sustained great loss of business and 
 profits. 
 
 The plaintiff claims damages. 
 
 [Title.'] 
 Statement of Defence. 
 
 1. The defendant denies that the van was the defendant's van, or that 
 it was under the charge and control of the defendant's servant. The van 
 belonged to Mr. John Smith, of , a carman and contractor 
 employed by the defendant to carry and deliver goods for him ; and the 
 persons under whose charge and control the said van was were the servants 
 of the said Mr. John Smith. 
 
 2. The defendant does not admit that the van was turned out of Fleet 
 Street, either negligently, suddenly, or without warning, or at a rapid or 
 dangerous pace, 
 
 3. The defendant says, that the plaintiff inight and could, by the 
 exercise of reasonable cire and diligence, have seen the van approaching 
 him, and avoided any collision with it.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 607 
 
 4. The defendant does not admit the statements of the third paragraph 
 of the statement of claim. 
 
 Reply. 
 The plaintiff joins issue upon the defendant's statement of defence. 
 
 No. 21. 
 
 POSSESSION OF SHIP. 
 
 Possession of Ship 
 
 In the High Court of Justice, 187 . B. No. 
 
 Admiralty Division. 
 
 Writ issued [ ]. 
 
 THE "LADY OF THE LAKE." 
 Between A.B. .... Plaintiff, 
 
 and 
 E.F. - - Defendant. 
 
 Statement of Claim. 
 
 1. On or about the 15th of July, 1868, an agreement was entered into 
 between the plaintiff and J. D., who was then the sole owner of the 
 above-named barque " Lady of the Lake," whereby J. D. agreed to sell, 
 and the plaintiff agreed to purchase, 32-64th parts or shares of the 
 vessel for the sum of 500 ; payment 300 in cash, and the remainder by 
 purchaser's acceptances at three and six months date, and it was thereby 
 agreed that the plaintiff was to be commander of the vessel. 
 
 2. The plaintiff accordingly paid to J. D. the sum of 300, and gave 
 him his (the plaintiff's) acceptances, at three and six months' date for the 
 residue of the said purchase-money, and J. D. by bill of sale transferred 
 32-64th parts or shares in the vessel to the plaintiff, which bill of sale 
 was duly registered on the 18th of July, 1868 ; the plaintiff has since 
 been and still is the registered owner of such 32-64th shares. 
 
 3. The vessel then sailed under the plaintiffs command on a voyage 
 from Sunderland to the Brazils and other ports, and then on a homeward 
 voyage to Liverpool, where she arrived on the 18th of June, 1869, and 
 having there discharged her homeward cargo, she sailed thence under 
 the plaintiffs command with a cargo to the Tyne, and thence to Sun- 
 derland, at which port she arrived on the 9th of August, 1869. 
 
 4. The plaintiff then made several ineffectual applications to J. D. 
 with a view to obtaining another charter for the said vessel, and after 
 she had been lying idle for a considerable time, the plaintiff on or about 
 the 16th of September, 1869, obtained an advantageous charter for her to 
 proceed to Barcelona with a cargo of coals, and with a view to enabling 
 her to execute such charter the plaintiff paid the dock dues, and moved
 
 608 FORMS UNDER THE SUPREME 
 
 the vessel into a slipway in order that her bottom might he cleaned, hut 
 on or ahout the 1 7th of September, whilst the vessel was on the shore 
 adjoining the slipway, the defendant, to whom the said J. D. had in the 
 meantime transferred his 32-64th parts, forcibly took the vessel out of the 
 possession of the plaintiff, and refused and still refuses to allow the 
 plaintiff to take the vessel on her said voyage to Barcelona, and by 
 reason thereof heavy loss is being occasioned to the plaintiff. 
 The plaintiff claims : 
 
 1. Judgment giving possession of the vessel " Lady of the Lake" to 
 
 the plaintiff : 
 
 2. The condemnation of the defendant in costs of suit, and in all 
 
 losses and damages occasioned by the defendant to the plaintiff : 
 
 3. Such further relief as the nature of the case requirps. 
 
 [Title.] 
 
 Defence. 
 
 1. The defendants say that the acceptances in the second paragraph of 
 the claim mentioned were respectively dishonoured by the plaintiff, and 
 have never yet been paid by him. 
 
 2. It was agreed between the plaintiff and J. D., that J. D. should 
 act, and he has since always acted, as ship's husband of the " Lady of the 
 Lake." 
 
 3. On the 31st of August, 1869, J. D. sold to the defendant, for the 
 sum of 400, and by bill of sale duly executed, transferred to him his 
 32.64th shares, and the bill of sale was duly registered on the 14th of 
 September following. 
 
 4. After the " Lady of the Lake " had arrived at Sunderland, and 
 after the defendant had purchased from J. D. his 32-64th shares of the 
 " Lady of the Lake," the defendant placed the vessel in the custody and 
 possession of a shipkeeper. The plaintiff, however, unlawfully removed 
 her from such possession, and thereupon the defendant had the vessel 
 taken into the South Dock of the harbour at Sunderland, with orders 
 that she should be kept there. What the defendant did, as in this 
 article mentioned, he did with the consent and full approval of J. D. 
 
 5. At the time of the sale of the " Lady of the Lake " by J. D. to the 
 defendant as afore-mentioned, there was and there still is due from the 
 plaintiff, as part owner of the " Lady of the Lake," to J. D. as part 
 owner and ship's husband, a sum of money exceeding 300 in respect of 
 the vessel and her voyages over and above the amount of the unpaid 
 acceptances. 
 
 6. Save as herein appears, the averments in the fourth paragraph of the 
 claim contained are untrue, and if the charter party mentioned in that 
 paragraph was obtained by the plaintiff as alleged, which the defendant
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 609 
 
 dops not admit, it was obtained by him without the authority, consent, or 
 knowledge of J. D. or the defendant. 
 
 7. Before the defendant took possession of the vessel as aforemen- 
 tioned, the plaintiff ceased to be master of her, with the consent of J. 1). 
 or the defendant. 
 
 8. J. D. has instituted an action against the said vessel in 
 
 order to have the accounts taken between him and the 
 plaintiff, and to enfonfe payment of the money due from the plaintiff to 
 
 him. 
 
 [Title.'] 
 
 Kepbj. 
 
 1. The plaintiffs say in reply to the first paragraph of the defence 
 that the bills therein mentioned were dishonoured by the plain- 
 tiff because J. D. was indebted to the plaintiff in a large amount for his 
 wages us master, and for his share of the earnings of the " Lady of the 
 Lake," and refused payment thereof. 
 
 2. J. D. did not place the vessel in the exclusive custody or possession 
 of a shipkeeper as in the fifth paragraph of the defence stated or implied. 
 On the contrary, the vessel continued in the custody and possession of. 
 the plaintiff, who still holds her register. A man was sent on board the 
 vessel by J. D. to look after J. D.'s share in the said vessel while sho 
 was in dock, but ho did not dispossess the said plaintiff or take exclusive 
 possession of the vessel, and the plaintiff was not dispossessed of tho 
 vessel until on or about the 17th of September last. 
 
 3. Except as hereinbefore appears the plaintiff joins issue upon the 
 defendant's statement of defence. 
 
 [Title.'] 
 
 Rejoinder. 
 
 The defendant joins issue upon the first and second paragraphs of 
 the Reply. 
 
 No. 22. 
 PROMISSORY NOTE. 
 
 1ST . B. No. 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 3rd August, 1876. 
 Between A.B. Plaintiff, 
 
 and 
 .r. Defendant. 
 
 Statement of Claim. 
 1. The defendant on the day of mads his 
 
 3'J
 
 610 FORMS UNDER THE SUPREME 
 
 promissory note, whereby he promised to pay to the plaintiff or his order 
 three months after date. 
 
 2. The note became due on the day of 1874 
 
 and the defendant has not paid it. 
 
 The plaintiff claims : 
 
 The amount of the note and interest thereon to judgment. 
 
 The plaintiff proposes that this action should be tried in the county of 
 
 [Title.] 
 Statement of Defence. 
 
 1. The defendant made the note sued upon under the following' 
 circumstances: The plaintiff and defendant had for some years been in 
 partnership as coal merchants, and it had been agreed between them that 
 they should dissolve partnership, that the plaintiff should retire from the 
 business, that the defendant should take over the whole of the partnership 
 assets and liabilities, and should pay the plaintiff the value of his share in 
 the assets after deducting the liabilities. 
 
 2. The plaintiff thereupon undertook to examine the partnership books, 
 and inquire into the state of the partnership assets and liabilities ; and ho 
 did accordingly examine the books, and make the said inquiries, and he 
 thereupon represented to the defendant that the assets of the firm exceeded 
 10,000, and that the liabilities of the firm were under 3,000, whereas the- 
 fact was that the assets of the firm were less than 5,000, and the liabilities, 
 of the firm largely exceeded the assets. 
 
 3. The misrepresentations mentioned in the last paragraph induced the- 
 defendant to make the note now sued on, and there never was any other 
 consideration for the making of the note. 
 
 [Title.'] 
 
 Reply. 
 The plaintiff joins issue on the defence. 
 
 No. 23. 
 PROBATE OF WILL IN SOLEMN FOEM. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Probate Division. . 
 
 Writ issued [ ] 
 
 Between A.B. - - Plaintiff, 
 
 and 
 E.F. .... Defendant. 
 
 Statement of Claim. 
 1. T. C., late of Bicester in the county of Oxford, gentleman,
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 611 
 
 deceased, who died on the 20th 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 the said codicil the first 
 of January, 1875, and in the said will appointed the plaintiff sole executor 
 thereof. 
 
 2. The said will and codicil were signed by the deceased [or, by X,Y. 
 in the presence and by the directions of the deceased, or signed by the 
 deceased, who acknowledged his signature, or as the case may be] in the 
 presence of two witnesses present at the same time, the said will in the 
 presence of H. P. and J. R., and the said codicil in the presence of J. 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. 
 
 The plaintiff claims : 
 
 That the Court shall decree probate of the said will and codicil in 
 solemn form of law. 
 
 [Title.] 
 
 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 provisions of the statute 1 Viet. c. 26. 
 
 2. The deceased at the time the said will and codicil respectively pur- 
 port to have been executed was not of sound mind, memory, and under- 
 standing. 
 
 3. The execution of the said will and codicil was obtained by the undue 
 influence of the plaintiff [and others acting with him, whose r.nmes are 
 at present unknown to the defendant] . 
 
 4. The execution of the said will and codicil was obtained by the fraud 
 of the plaintiff, such fraud, so far as is within the defendant's present 
 knowledge being [state the nature of the fraud. ~\ 
 
 5. The said deceased at the time of the execution of the said will and 
 codicil did not know and approve of the contents thereof, or of the contents 
 of the residuary clause in the said will [as the case may be.~\ 
 
 6. The deceased made his true last will, dated the 1st day of January, 
 1873, and in the said will appointed the defendant sole executor thereof. 
 [Propound this will as in paragraphs 2 and 3 of claim.'] 
 
 The defendant claims : 
 
 1. That the Court will pronounce against the said will and codicil pro- 
 
 pounded by the plaintiff : 
 
 2. That the Court will decree probate of the oid will of the said 
 
 deceased, dated the 1st of January. 1873. in solemn form of law.
 
 612 FORMS UNDER THE SUPREME 
 
 [Title] 
 Reply. 
 
 1. The plaintiff joins issue upon the statement of defence of the defen- 
 dant, as contained in the first, second, third, fourth, and fifth paragraphs 
 
 hereof. 
 
 2. The plaintiff says that the said will of the said deceased, dated the 
 1st of January, 1873, was duly revoked by the will of the said 1st of 
 October, 1873, propounded by the plaintiff in his statement of claim. 
 
 A.D. 1875. No. 24. 
 
 RECOVERY OF LAND. LANDLORD AND TENANT. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Common Pleas Division. 
 Writ issued 3rd August, 1876. 
 
 Between A.B. Plaintiff, 
 
 and 
 
 C.D. Defendant. 
 
 Statement of Claim. 
 
 1. On the day of the plaintiff let to 
 the defendant a house, No. 52, street, in the city of London, 
 as tenant from year to year, at the yearly rent of 120, payable quarterly, 
 the tenancy to commence on the day of 
 
 2. The defendant took possession of the house and continued tenant 
 thereof until the day of last, when the tenancy 
 determined by a notice duly given. 
 
 3. The defendant has disregarded the notice and still retains possession 
 of the house. 
 
 The plaintiff claims : 
 
 1. Possession of the house. 
 
 2. for mesne profits from the day of 
 
 The plaintiff proposes that this action should be tried in London. 
 
 In the High Court of Justice, 187 . No. 
 
 Common Pleas Division. 
 
 Between A.B. Plaintiff, 
 
 and 
 
 C.D. Defendant, 
 
 (by original action,) 
 
 And between C.D. Plaintiff, 
 
 and 
 A.B. ....... Defendant, 
 
 (by counter claim.) 
 
 The defence and counter claim of the above-named C.D. 
 1. Before the determination of the tenancv mentioned in the statement
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 613 
 
 of claim, the plaintiff A.B., by writing, dated the day 
 
 of , and signed by him, agreed to grant to the defendant 
 
 C.D. a lease of the house mentioned in the statement of claim, 
 at the yearly rent of 150, for the term of 21 years, commencing 
 from the day of , when the defendant C.D.'s 
 
 tenancy from year to year determined, and the defendant has since that 
 date been and still is in possession of the house under the said agreement. 
 2. By way of counter claim the defendant claims to have the agree- 
 ment specifically performed and to have a lease granted to him accordingly, 
 and for the purpose aforesaid, to have this action transferred to the 
 Chancery division. 
 
 In the High Court of Justice, 187 . No. 
 
 Chancery Division. 
 
 (Transferred by order dated day of .) 
 
 Between A.B. - . - - - Plaintiff, 
 
 and 
 C.D. ...... Defendant, 
 
 (by original action,) 
 And between C.D. ---_.. Plaintiff, 
 
 and 
 A.B. ...... Defendant, 
 
 (by counter claim.) 
 The reply of the plaintiff A. B. 
 
 The plaintiff A.B. admits the agreement stated in the 
 defendant C.D.'s statement of defence, but he refuses to grant to the 
 defendant a lease, saying that such agreement provided that the lease 
 should contain a covenant by the defendant to keep the house in gocd 
 repair and a power of re-entry by the plaintiff upon breach of such 
 covenant, and the plaintiff says that the defendant has not kept the house 
 in good repair, and the same is now in a dilapidated condition. 
 
 [Title.] 
 
 Joinder of Isstte. 
 
 The defendant C.D. joins issue upon the plaintiff A. B.'s statement in 
 reply. 
 
 No. 25. 
 RECOVERY OF LAXD. 
 
 187 . B. Xo. 
 In the High Court of Justice, 
 Common Pleas Division. 
 
 Writ issued 3rd August, 1876. 
 Between A.B. and C.D. .... Plaintiffs, 
 
 and 
 E.F. Defendants.
 
 614 FORMS TJXDER THE SUPREME 
 
 Statement of Claim, 
 
 1. K. L., late of Sevenoaks, in the county of Kent, duly executed 
 his last will, dated the 4th day of April, 1870, and thereby 
 devised his ands at or near Sevenoaks, and all other his lands in the 
 county of Kent, unto and to the use of the plaintiffs and their heirs, 
 upon the trusts therein mentioned for the benefit of his daughters Margaret 
 and Martha, and appointed the plaintiffs executors thereof. 
 
 2. K.L. died on the 3rd day of January, 1875, and his said will was 
 proved by the plaintiffs in the Court of Probate on or about the 4th day 
 of lebruary, 187-5. 
 
 3. -K". Z. was at the time of his death seised in fee of a house at Seven- 
 oaks r and two farms near there called respectively , the home 
 farm containing 276 acres, and the Longton farm containing 700 acres, 
 both in the county of Kent. 
 
 4. The defendant, soon after the death of Z". Z., entered into possession 
 of the house and two farms, and has refused to give them up to the 
 plaintiff. 
 
 The plaintiffs claim : 
 
 1 . Possession of the house and two farms : 
 
 2. for mesuo profits of the premises from the death of 
 K.L. till such possession shall be given. 
 
 The plaintiff propo <es that this action should be tried in the county of 
 Kent. 
 
 [Title .] 
 
 Statement oj Defence. 
 
 1. The defendant is the eldest son of I. L., deceased, who was the 
 eldest son of 2T. L., in the statement of claim named. 
 
 2. By articles bearing date the 31st day of May, 1827, and made pre- 
 vious to the marriage of K. L. with Martha his intended wife, K. L., in 
 consideration of such intended marriage, agreed to settle the house and 
 two farms in the statement of claim mentioned (and of which he was then 
 seised in fee) to the use of himself for his life, with remainder to the use 
 of his intended wife for her life, and after the survivor's decease, to the 
 use of fehe heirs of the body of the said _ZT. L. on his wife begotten, with 
 other remainders over. 
 
 3. The marriage soon after took effect, _5T. L., "by deeds of lease and 
 release, bearing date respectively the 4th and 5th of April, 1828, after 
 reciting the articles in alleged performance of them, conveyed the house 
 and two farms to the use of himself for his life, with remainder to the 
 use of his wife for her life, and after the decease of the survivor of them, 
 to the use of the heirs body of K. L. on the said Martha to be begotten 
 with other remainders over.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 615 
 
 4. There was issue of the marriage an only son Thomas L and 
 
 two daughters. After the death of Thomas L , which took place 
 
 in February, 1864, JT.Z., on the 3rd May, 1864, executed a disentailing 
 assurance, which was duly enrolled and thereby conveyed the house and 
 two farms to the use of himself in fee. 
 
 \Title.~\ 
 Reply. 
 The plaintiffs join issue upon the defendant's statement of defence. 
 
 No. 26. 
 SALVAGE. 
 
 In the High Court of Justice, 
 Admiralty Division. 
 
 Writ issued [ ]. 
 
 THE "CAMPANIL." 
 Between A.S. and C. D, .... Plaintiffs, 
 
 and 
 KF. and G.H. .... Defendants. 
 
 Statement of Claim. 
 
 1. The " Brazilian" is a screw steamer beL >nging to the port of New- 
 castle, of the burthen of 1,359 tons gross remastered tonnage, and pro- 
 pelled by engines of 130 horse-power, and at the time of the rendering 
 of the salvage services hereinafter mentioned she was navigated by her 
 master and a crew of twenty-four hands. Shf left the Port of Newcastle 
 on the 27th of November, 1873, on a voyage to Genoa, and thence by 
 way of Palmaras and Aguilas to the Tyne, and about 10 a.m. on the 26th 
 of December, 1873, in the course of her homeward voyage, with a cargo 
 of merchandise, she was off the coast of Portugal, the Island of Ons 
 bearing about S.E. by E., when those on board her sighted a disabled 
 steamer about four points on their starboard bow, inshore, flying signals 
 of distress. A strong gale was blowing at the time, and there was a 
 very heavy sea running. 
 
 2. The " Brazilian" at once made towards the disabled steamer, which 
 proved to be the " Campanil," the vessel proceeded against in this action. 
 She was heavily laden with a cargo of iron ore. The "Brazilian" as 
 she approached the " Campanil" signalled to her, and the " Campanil" 
 answered by signal that her engines had broken down. By this time 
 the "Campanil" was heading in shore, rolling heavily, and shipping 
 a large quantity of water. The "Brazilian" came under the lee of the 
 "Campanil" and asked if she wanted assistance. Her master replied 
 that he wanted to be towed to Vigo as his vessel had lost her screw. The 
 master of the "Brazilian" then asked those on board the "Campanil"
 
 G16 FORMS UNDER THE SUPREME 
 
 to send him a hawser, and for a long time those on board the "Brazilian " 
 made attempts to get a hawser from the " Campanil," and exposed them- 
 selves and their vessel to great danger in doing so. The wind and sea 
 rendering it impossible to get the hawser whilst the " Brazilian " was 
 to leeward of the "Campanil," the "Brazilian" went to windward and 
 attempted to float lines by means of life buoys to the " Campanil." 
 During all this time the " Campanil " was quite unmanageable, and 
 yawed about, and there was very great difficulty in manoeuvring the 
 "Brazilian" so as to retain command over her and keep her near the 
 " Campanil." It was necessary to keep constantly altering the engines 
 of the "Brazilian," setting them on ahead and reversing them quickly, 
 and in consequence the engines laboured heavily and were exposed to 
 great danger of being strained. 
 
 C. Whilst the " Brazilian " was endeavouring to float lines to the 
 "Campanil," the "Campanil" made a sudden lurch and struck the 
 " Brazilian " on her port quarter, knocking in her port bulwark and rail, 
 and causing other damage to the vessel. After many unsuccessful efforts 
 by those on board the " Brazilian," and after they had lost two life buoys 
 and a quantity of rope, a hawser from the " Campanil " was at length 
 made fast on board the "Brazilian," and the "Brazilian" with the 
 "Campanil" in tow steamed easy ahead. A second hawser was then 
 got out and made fast with coir springs, and the " Brazilian" then com- 
 menced to tow full speed ahead, each hawser having a full scope of 9Q 
 fathoms. 
 
 4. The " Brazilian " made towards Vigo, which was aboxit 35 miles 
 distant, the vessels made about two knots an hour, the "Brazilian" 
 keeping her engines going at full speed. The "Brazilian" laboured very 
 heavily, and both vessels shipped large quantities of water. 
 
 5. About noon one of the tow ropes broke, and both vessels were in 
 danger of being driven ashore, broken water and rocks appearing to lee- 
 ward, distant about two miles. After great difficulty the broken hawser 
 was made fast again with a heavy spring of a number of parts of rope, 
 and the " Brazilian" towed ahead under the lee of Ons Island. 
 
 6. Shortly afterwards the weather moderated and the sea went down a 
 little, and the " Brazilian " was able to make more way, and about 7 
 p.m. the same day she towed the "Campanil" into Vigo harbour in 
 safety. 
 
 7. The " Brazilian " was compelled to remain in harbour the next day 
 to pay port charges and clear at the Custom House. 
 
 8. The coast off which the aforesaid services were rendered is rocky 
 and exceedingly dangerous, and strong currents set along it, and but for 
 the services rendered by the "Brazilian" the "Campanil" must have 
 gone ashore and been wholly lost, together with her cargo, and in all
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 617 
 
 probability her master and crew would have been drowned. No other 
 steamer was in sight, and there was not any prospect of any other effi- 
 ient assistance. 
 
 9. In rendering the said services the " Brazilian " and those on board 
 her were exposed to great danger. Owing to the heavy sea, and the 
 necessity of towing with a long scope of hawser, there was great danger 
 of fouling the screw of the "Brazilian," and it required constant vigi- 
 lance on the part of the master and crew to prevent serious accident. The 
 master and crew of the " Brazilian " underwent much extra fatigue and 
 exertion. 
 
 10. The damage sustained by the "Brazilian" in rendering the said 
 services amounts to the sum of 150, and the value of the extra quantity 
 of coal consumed in consequence of the said services is estimated at 16 
 and 4 Is. 5d. was paid by the owners of the " Brazilian" for harbour 
 dues and other charges at Vigo. 
 
 11. The value of the " Campanil," her cargo and freight, at the time 
 of the salvage services were as follows, that is to say : The " Campanil" 
 was of the value of 13,000, her cargo was of the value of 300, and the 
 gross amount of freight payable upon delivery of the cargo laden on 
 board her at Barrow-in-Fumess was 675. 
 
 12. The value of the "Brazilian," her freight and cargo was about 
 25,050. 
 
 The plaintiffs claim: 
 
 1. Such an amount of salvage as to the Court may seem just : 
 
 2. That the defendants and their bail be condemned in costs : 
 
 3. Such further or other relief as the nature of the case may require. 
 
 [Title.] 
 
 Statement of Defence. 
 
 1. The defendants say that upon the 22nd of December, 1873, the iron 
 screw steamship " Campanil," of the burden of 660 tons register gross, 
 propelled by engines of 70 horse-power, navigated by David Boughton, 
 her master, and a crew of 16 hands, left Porman, bound to Barrow-in- 
 Furness, laden with a cargo of iron ore. 
 
 2. At about 8 a.m. of the 26th of December, whilst the " Campanil " 
 was prosecuting her voyage, the shaft of her propeller broke outside the 
 stern tube, and she lost her propeller. The " Campanil " was then 
 brought to the wind, which was south by east, blowing fresh, and sbe 
 proceeded under sail for Vigo, and continued to do so until about 9.30 
 a.m., when two steamships which had been for some time in sight, and 
 coming to the northward, approached the " Campanil." The ensign of 
 the " Campanil " was hoisted, union up, as a signal to one of such 
 steamships, which afterwards come to the " Campnnil," and proved to be 
 the " Brazilian," whose owners, master, and crew are the plaintiffs.
 
 618 FORMS UNDER THE SUPREME 
 
 3. The " Brazilian" then signalled the " Campanil " and inquired what 
 was the matter, and was signalled in reply that the "Campanil" had 
 lost her propeller, and required to be towed to Vigo, upon which the 
 " Brazilian" signalled for the rope of the " Campanil," in order to take 
 her in tow. After this the " Brazilian" steamed round the " Campanil' 
 and up on to her starboard bow, and in so doing the, " Brazilian " came 
 with her port quarter into the starboard bow of the " Campanil" and did 
 her considerable damage. 
 
 4. The " Brazilian" then threw a heaving line on board the " Campanil," 
 and one of the " Campanil's " hawsers was attached to the line and hauled 
 on board the " Brazilian," which passed one of her hawsers to the 
 " Campanil " by means of life buoys, and when such hawsers had been 
 secured between the two vessels the "Brazilian" commenced to tow the 
 "Campanil'' for Vigo, it being at this time about 10.30 a.m., and Ons 
 Island then bearing about south-east by south, and distant about fifteen 
 miles. 
 
 5. The "Brazilian" proceeded with the " Campanil" in tow, but owing 
 to the two vessels being laden, and to the small power of the " Brazilian," 
 she was only able to make very slow progress with the " Campanil," and 
 it was not until 6.30 p.m. of the said day that the " Brazilian" arrived at 
 Vigo with the " Campanil," which then came to anchor off the town 
 there. 
 
 6. The defendants on the day of tendered to tho 
 plaintiffs and have paid into court the sum of 350 for the services so as 
 aforesaid rendered to the "Campanil" and her said cargo and freight, 
 and offered to pay the costs, and submit that the same is ample and 
 sufficient. 
 
 [Title.] 
 
 1. The plaintiffs admit the first and second articles of the Answer, and 
 they admit that the " Brazilian" came into collision with the " Campanil," 
 and caused slight damage to the " Campanil," but save as aforesaid they 
 join issue upon the statement of defence. 
 
 No. 27. 
 TRESPASS TO LAND. 
 
 187 . No. 
 
 In the High Court of Justice, 
 Division. 
 
 Writ issued 3rd August, 1876. 
 Between A.B. .----- Plaintiff, 
 
 and 
 E.F. ...... Defendant.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 619 
 
 Statement of Claim. 
 
 1. The plaintiff was, on the 5th. March, 1876, and still is, the owner 
 and occupier of a form called Highfield Farm, in the parish of 
 
 and county of 
 
 2. A private road, known as Highfield Lane, runs through a portion 
 of the plaintiff's farm. It is bounded upon both sides by fields of the 
 plaintiff's, and is separated iherefrom by a hedge and ditch. 
 
 3. Tor a long time prior to the 5th March, 1876, the defendant had 
 wrongfully claimed to use the said road for his horses and carriages on 
 the alleged ground that the same was a public highway, and the plaintiff 
 had frequently warned him that the same was not a public highway, but 
 the plaintiff's private road, and that the defendant must not so use it. 
 
 4. On the oth March, 1876, the defendant came with a cart and horse, 
 and a large number of servants and workmen, and forcibly used the road, 
 and broke down and removed a gate which the plaintiff had caused to be 
 placed across the same. 
 
 5. The defendant and his servants and workmen on the same occasion 
 pulled down and damaged the plaintiff's hedge and ditch upon each side 
 of the road, and went upon the plaintiff's field beyond the hedge and 
 ditch, and injured the crops there growing, and dug up and injured the 
 soil of the road ; and in any case the acts mentioned in this paragraph 
 were wholly unnecessary for the assertion of the defendant's alleged right 
 to use, or the user of the said road as a highway. 
 
 The plaintiff claims : 
 
 1. Damages for the wrongs complained of. 
 
 '2. An injunction restraining the defendant from any repetition of 
 
 any of the acts complained of. 
 3. Such further relief as the nature of the case may require. 
 
 [Title.} 
 
 Statement of Defence. 
 
 1. The defendant says that the road was and is a public highway for 
 horses and carriages ; and a few days before the 5th March, 1876, the 
 plaintiff wrongfully erected the gate across the road for the purpose of 
 obstructing and preventing, and it did obstruct and prevent the use of 
 the road as a highway. And the defendant, on the said 5th March, 1876, 
 caused the said gate to be removed, in order to enable him lawf'ully to 
 use the road by his horses and carriages as a highway. 
 
 2. The defendant denies the allegations of the fifth paragraph of the 
 statement of claim, and says that neither he nor any of his workmen or 
 servants did any act, or used any violence other than was necessary to 
 enable the plaintiff lawfully to use the highway.
 
 620 FORMS UNDER THE SUPREME 
 
 [Title.] 
 Reply. 
 The plaintiff joins issue upon the defendant's statement of defence. 
 
 No. 28. 
 
 Form of Demurrer, 
 In the High Court of Justice, 
 Division. 
 
 A. S. v. C. D. 
 
 The defendant [plaintiff] demurs to the [plaintiff's statement of com- 
 plaint or defendant's statement of defence or of set-off, or of counter- 
 claim], [or to so much of the plaintiff's statement of complaint as 
 
 claims or as alleges as a breach of contract the matters 
 
 mentioned in paragraph 17, or as the case may he], and says that the 
 same is bad in law on the ground that [here state a ground of demurrer] 
 and on other grounds, sufficient in law to sustain this demurrer. 
 
 This is Form No. 1 of Schedule (C) to the Eules of Court 
 drawn up in 1874 under the principal Act. 
 
 This form is intended to illustrate Order XXVIII., Kule 2, 
 of the present Act, p. 392, supra. 
 
 No. 29. 
 Memorandum of Entry of Demurrer for Argument. 
 
 1874. B.No. 
 
 In the High Court of Justice, 
 Division. 
 
 A. B. v. C. D. 
 Enter for the argument the demurrer of 
 
 to 
 
 X. T., 
 
 Solicitor for the plaintiff [or, &c.l 
 
 This is form No. 2 of Schedule (C) to the Eules of Court 
 drawn up in 1874 under the principal Act. 
 
 This form is intended to illustrate Order XXVIII., Rule 13 
 of the present Act. p. 379, supra. 
 
 APPENDIX D. 
 
 This Appendix is new. It illustrates Order XLI., Rule 1, 
 of the present Act, p. 462, supra.
 
 COITRT OF JUDICATURE ACTS 1873 AND 1875. 621 
 
 FOKMS OF JUDGMENT. 
 
 1. Default of Appearance and Defence in case of Liquidated Demand. 
 (See pp. 325 and 398.) 
 
 1876. B. No. 
 
 In the High Court of Justice, 
 Division. 
 
 Between A.B. Plaintiff, 
 
 and 
 
 C.D. and E.F. Defendants. 
 
 30th November, 1876. 
 
 The defendants [or the defendant C.D.I not having appeared to the 
 writ of summons herein [or not having delivered any statement of defence^, 
 it is this day adjudged that the plaintiff recover against the said de- 
 fendant , and costs, to be taxed. 
 
 2. Judgment in default ot appearance in Action for Recovery of Land. 
 (See pp. 31 9 and 400.) 
 
 [Title, $r.] 
 30th November, 1876. 
 
 No appearance having been entered to the writ of summons herein, 
 it is this day adjudged that the plaintiff recover possession of the land 
 in the said writ mentioned. 
 
 3. Judgment in default of Appearance and Defence after Assessment if 
 Damages. (See pp. 328 and 398.) 
 
 1876. B. No. 
 
 In the High Court of Justice, 
 Division. 
 
 Between A.B. and C.D. Plaintiffs, 
 
 and 
 E.F. and G.1I. Defendants. 
 
 430th November, 1876. 
 
 The defendants not having appeared to the -writ of summons here- 
 in [or not having delivered a statement of defence'] and a writ of inquiry 
 dated 1876, having been issued directed to the sheriff of 
 
 to assess the damages which the plaintiff was entitled to recover, 
 and the said sheriff having by his return dated the 1876, re- 
 
 turned that the said damages have been assessed at , it is 
 
 adjudged that the plaintiff recover , and costs to be taxed. 
 
 4. Judgment of Trial by Judge u'ithout a Jury. (See pp. 432 and 444.) 
 
 [ Year, letter, and number.] 
 Division. 
 
 day of 18
 
 622 FORMS UNDER THE SUPREME 
 
 [If in Chancery Division, name of Judge."] 
 
 Between A.B. - Plaintiff, 
 
 and 
 G.D., E.F., and G.H. Defendants. 
 
 This action coming on for trial [the day of 
 
 and] this day, before in the presence of counsel for the 
 
 plaintiff and the defendants [or, if some of the defendants do not appear, for 
 the plantiff and the defendant C.D., no one appearing for the defendants 
 E.F. and G.H., although they were duly served with notice of trial as hy 
 the affidavit of filed the day of appears,] upon 
 
 hearing the prohate of the will of , the answers of the defendants 
 
 C.D., E.F., and G.H., to interrogatories, the admission in writing, dated 
 and signed hy [Mr. the solicitor for] the plaintiff" 
 
 A.B. and by [Mr. the solicitor for] the defendant C.D., the 
 
 affidavit of filed the day of , the 
 
 affidavit of filed the day of , the 
 
 evidence of taken on their oral examination at 
 
 the trial, and an exhibit marked X., being an indenture dated, &c., and 
 made between [parties], and what was alleged by counsel on both sides 
 This court doth declare, &c. 
 
 And this court doth order and adjudge, &c. 
 
 5. Judgment after Trial by a Jury. (See pp. 442 and 465.) 
 
 . [Title, c.] 
 15th November, 1876. 
 
 The action having on the 12th and 13th November, 1876, teen tried 
 before the Honourable Mr. Justice and a special jury 
 
 of the county of , and the jury having found [state findings 
 
 as in officer' s cert ificate] , and the said Mr. Justice having ordered 
 
 that judgment be entered for the plaintiff for and costs of suit [or 
 
 as the case may be.] Therefore it is adjudged that the plaintiff recover 
 against the defendant and for his costs of suit [or that 
 
 the plaintiff recover nothing against the defendant, and that the defendant 
 recover against the plaintiff for his costs of defence, or as the 
 
 ease may be] . 
 
 6. Judgmtnt after Trial before Eeferee. (See pp. 120 and -132). 
 
 [Title, $c.] 
 30th November, 1876. 
 
 The action on the 27th November, 1876, been tried before X.Y. Esq. 
 an official [or special] referee ; and the said X.Y. having found [state 
 tubstance of referee' t certificate], it is this day adjudged that.
 
 COUKT OF JUDICATURE ACTS 1873 AND 1875. 623 
 
 7. Judgment upon Motion for Judgment. (See p. 456). 
 
 [Title, &c.] 
 30th November, 1876. 
 
 This day before Mr. X . of counsel for the plaintiff [or as 
 
 the case may be], moved on behalf of the said [state judgment 
 
 moved for], and the said Mr. X. having been heard of counsel for 
 
 and Mr. X. of counsel for the Court adjudged 
 
 APPENDIX E. 
 
 This Appendix is new. It illustrates Order XLII, Rule 10, 
 of tlie present Act, p. 471, siqwa. (See note to that Rule.) 
 FORMS OF PRJECIPE. 
 
 1. Fieri facias. 
 
 1876. B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. ...... Plaintiff, 
 
 and 
 C.D. and others - .... Defendants. 
 
 Seal a writ of fieri facias directed to the sheriff of to 
 
 levy against C.D. the sum of and interest 
 
 thereon at the rate of per centum per annum from the 
 
 day of [and costs] to . 
 
 Judgment [or order] dated day of 
 
 [Taxing master's certificate, dated day of . 
 
 X. T., solicitor for [party on whose 
 behalf ivrit is to issue.'] 
 
 2. Elegit. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A. B. ------ Plaintiff, 
 
 and 
 C.D. and others .... Defendants. 
 
 Seal a -writ of elegit directed to the sheriff of 
 against of in the county of 
 
 for not paying to A JJ. the sum of , together with interest 
 
 thereon, from the day of [and the sum of
 
 624 FORMS UNDER THE SUPREME 
 
 for costs,] with interest thereon at the rate of 4 per centum 
 
 per annum. 
 
 Judgment [or order] dated day of 18 
 
 ("Taxing master's certificate, dated day of 18 .] 
 
 X.Y., 
 
 Solicitor for 
 
 3. Tenditioni Exponat. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. Plaintiff, 
 
 'Tin 
 
 CJ). and others Defendants. 
 
 Seal a writ of venditioni exponas directed to the sheriff of 
 to sell the goods and of C.D. taken under a writ of fieri 
 
 facias in this action tested day of 
 
 X.Y., 
 
 Solicitor for 
 
 4. Fieri Facias de Bonis Ecclesiasticis. 
 In the High Court of Justice, 187 . B. No. 
 
 Division. 
 
 Between .4.1?. - '- - ... . Plaintiff, 
 
 and 
 
 C.D. Defendant. 
 
 Seal a writ of fieri facias de bonis ecclesiasticis directed to the bishop 
 [or archbishop as the case may le] of to levy against C.D. 
 
 the sum of 
 
 Judgment [or order] dated day of 
 
 [Taxing master's certificate, dated day of ]. 
 
 X.Y., 
 Solicitor for 
 
 5. Seqitestrari Facias de Bonis Eeclesiaslicis. 
 
 187 . B No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. ...... Plaintiff, 
 
 and 
 
 C.D. and others Defendants. 
 
 Seal a writ of sequestrari facias directed to the Lord Bishop of 
 against C.D. for not paying to A,B. the sum of
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 625 
 
 6. Writ of Sequestration. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. - - - ... Plaintiff, 
 
 and 
 C.D. and others - - - - Defendants. 
 
 Seal a writ of sequestration against C.D. for not 
 
 at the suit of A.B. directed to [names of Commissioners']. 
 Order dated day of 
 
 7. Writ of Possession. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. ....... Plaintiff, 
 
 and 
 C.D. and others ..... Defendants. 
 
 Seal a writ of possession directed to the sheriff of to 
 
 deliver possession to A.B. of 
 
 Judgment dated day of 
 
 8. Writ of Delivery. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. ....... Plaintiff, 
 
 and 
 C.D. and others ..... Defendants. 
 
 Seal a writ of delivery directed to the sheriff of to make 
 
 delivery to A.B. of 
 
 9. Writ of Attachment. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. - - . . . . . Plaintiff, 
 
 and 
 C.D. and others Defendants. 
 
 Seal in pursuance of order dated day of 
 
 an attachment directed to the sheriff of against C.D. for not 
 
 delivering to A.B. 
 
 40
 
 626 FORMS UNDER THE SUPREME 
 
 APPENDIX F. 
 
 This Appendix is new. It illustrates Order XLII, Rule 1 2, 
 of the present Act, p. 472, supra. 
 
 FORMS OF WRITS. 
 1. Writ of Fieri Facias. 
 
 187 . B. No. 
 
 In the High Court of Justice, 
 Division. 
 
 Between A.B. Plaintiff, 
 
 and 
 
 C.D. and others - ... Defendants. 
 Victoria, by the of grace God of the United Kingdom of Great 
 and Ireland Queen, Defender of the Faith, 
 
 To the sheriff of greeting, 
 
 We command you that of the goods and chattels of C.D. in your baili- 
 wick you cause to be made the sum of , and also 
 interest thereon at the rate of per centum per annum 
 from the day of * which said 
 sum of money and interest were lately before us in our High Court of 
 Justice in a certain action [or certain actions, as the case may be] wherein 
 A.B. is plaintiff and C.D. and others are defendants [or in a certain matter 
 there depending intituled " In the matter of E.F." as the case may be] 
 by a judgment [or order as the case inay be] of our said Court, bearing 
 date the day of adjudged [or ordered, as the 
 ease may be~\ to be paid by the said C.D. to A.B., together with certain 
 costs in the said judgment, [or order as the case may be} mentioned, and 
 which costs have been taxed and allowed by one of the taxing masters 
 of our said Court at the sum of as appears by the certi- 
 ficate of the said taxing master, dated the day of And 
 that of the goods and chattels of the said C.D. in your bailiwick you 
 further cause to be made the said sum of [costs] together 
 with interest thereon at the rate of 4 per centum per annum from the 
 day of t, and that you have that money and 
 interest before us in our said Court immediately after the execution 
 heieof to be paid so the said A .B. in pursuance of the said judgment [or 
 order, as the case may be.~] And in what manner you shall have executed 
 this our writ make appear to us in our said Court immediately after the 
 execution thereof. And have here then this writ. 
 Witness, &c. 
 
 * Day of the judgment or order, or day on which money directed to 
 be paid, or day from which interest is directed by the order to run, as 
 the case may be. 
 
 f The date of the certificate of taxation. The writ must be so moulded 
 as to follow the substance of the judgment or order.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 627 
 
 See Order XLII, Rules 1, 6, and 15 of the present Act, 
 pp. 466, 468 and 475, supra ; Order XLIII, Rule, 1, p. 470. 
 
 Form of Writs ofji.fa. will be found in the Schedule to Reg. 
 Gen. flil. T. 1853, NOB. 1 to 8. 
 
 2. Writ of ElegiL 
 
 187 . B.No, 
 
 In the High Court of Justice, 
 
 Division. 
 
 Between A.B. ..-.-- Plaintiff, 
 
 and 
 
 C.D. and others .... Defendants, 
 
 Victoria, by the grace of God of the United Kingdom of Great Britain 
 and Ireland, Queen, Defender of the Faith. 
 
 To the sheriff of , greeting. 
 
 Whereas lately in our High Court of Justice in a certain action [or 
 certain actions, as the case may be] there depending, wherein A.B. is plain- 
 tiff and C.D. and others are defendants [or in a certain matter there depend- 
 ing, intituled " In the matter of E.F.," as. the case may be~] by a judgment 
 [or order, as the ease may be] of our' said Court, made in the said action 
 [or matter, as the case may be], and bearing date the day of 
 
 , it was adjudged [or ordered, as the case may be] that 
 C.D. should pay unto A.B. the sum of , together with inte- 
 
 rest thereon after the rate of per centum per annum from 
 
 the day of , together also with certain costs as in the 
 
 said judgment [or order, a* the case may be] mentioned, and which costs 
 have been taxed and allowed by one of the taxing master* 
 
 of our said Court, at the sum of , as appears by the certifi- 
 
 case of the said taxing-master, dated the day of 
 
 And afterwards the said A.B. came into our said Court, and according to 
 the statute in such case made and provided, chose to be delivered to him 
 all the goods and chattels of the said C.D. in your bailiwick, except his 
 oxen and beasts of the plough, and also all such lands, tenements, recto- 
 ries, tithes, rents, and hereditaments, including lands and hereditaments 
 of copyhold or customary tenure in your bailiwick as the said C.D., or 
 any one in trust for him, was seised or possessed of on the day 
 
 of ' , in the year of our Lord * or at any time after- 
 
 wards, or over which the said C.D. on the said day of , 
 
 or at any time afterwards had any disposing power which he might 
 without the assent of any other person exercise for his own benefit t(. 
 hold to him the said goods and chattels as his proper goods and chattels 
 
 * The day on which the judgment or order was made.
 
 628 FORMS UNDER THE SUPREME 
 
 and to hold the said lands, tenements, rectories, tithes, rents, and here- 
 ditaments respectively, according to the nature and tenure thereof to him 
 and to his assigns, until the said two several sums of and 
 
 , together with interest upon the said sum of at the 
 
 rate of per centum per annum from the said day 
 
 of and on. the said sum of (costs) at the rate of 
 
 4 per centum per annum from the day of shall have 
 
 heen levied. Therefore we command you that without delay you cause 
 to be delivered to the said A.B. by a reasonable price and extent all the 
 goods and chattels of the said C.D. in your bailiwick, except his oxen 
 and beasts of the plough, and also all such lands and tenements, rectories, 
 tithes, rents, and hereditaments, including lands and hereditaments of 
 copyhold or customary tenure, in your bailiwick as the said C.D., or any 
 person or persons in trust for him was or were seised or possessed of on 
 the said day of * or at any time afterwards 
 
 or over which the said C.D. on the said day of *, 
 
 or at any time afterwards had any disposing power which he might 
 without the assent of any other person, exercise for his own benefit, to 
 hold the said goods and chattels to the said A.B., as his proper goods 
 and chattels, and also to hold the said lands, tenements, rectories, tithes, 
 rents, and hereditaments respectively, according to the nature and tenure 
 thereof to him and to his assigns until the said two several sums of 
 and together with interest as aforesaid, shall have 
 
 been levied. And in what manner you shall have executed this our writ 
 make appear to us in our Court aforesaid, immediately after the execution 
 thereof, under your seals, and the seals of those by whose oath you shall 
 make the said extent and appraisement. And have there then this writ. 
 Witness ourselves at Westminster, &c. 
 
 See Order XLII, Rules 6 & 15 of the present Act, pp. 468 
 and 473, supra; Order XLIII, Rule 1, p. 479. 
 
 Various forms of writs of elegit will be found in the sche- 
 dule to the Reg. Gen. Hil. T. 1853, Nos. 9, 10, 11, 12, 13 & 14. 
 
 Writ of Venditioni Exponas. 
 
 1875. B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. - ... Plaintiff, 
 
 and 
 
 CD. and others ... Defendants. 
 
 Yictoria t by the grace of God of the United Kingdom of Great 
 Britain and Ireland Queen, Defender of the Faith. 
 
 * The dav on which the decree or order was made.
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 629 
 
 To the sheriff of greeting : 
 
 "Whereas by our writ we lately commanded you that of the goods and 
 chattels of C.D. [here recite the fieri facias to the end]. And on the 
 
 day of you returned to us in tho 
 
 Division of our High Court of Justice aforesaid, that by 
 virtue of the naid writ to you directed you had taken goods and chattels 
 of the said C.D. to the value of the money and interest aforesaid, which 
 said goods and chattels remained in your hands unsold for want of 
 buyers. Therefore we being desirous that the said A.B. should be satis- 
 fied his money and interest aforesaid command you that you expose to 
 sale and sell, or cause to be sold, the goods and chattels of the said C.D., 
 by you in form aforeaaid taken, and every part thereof, for the best price 
 that can be gotten for the same, and have the money arising from such 
 sale before us in our said Court of Justice immediately after the execu- 
 tion hereof, to be paid to the said A.B. And have there then this writ. 
 
 Witness ourself at Westminster, the day of 
 
 in the year of our reign. 
 
 See Order XLIII, Rule 2, of the present Act, p. 481, supra. 
 
 4. Writ of Fieri facias de Bonis Eccletiasticis. 
 
 1875. B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. - Plaintiff, 
 
 and 
 C.D. and others ... Defendants. 
 
 Victoria, by the grace of God of the United Kingdom of Great 
 Britain and Ireland Queen, Defender of the Faith : To the Right 
 Reverend Father in God [John] by divine permission Lord Bishop of 
 greeting : We command you, that of the ecclesiastical 
 goods of C.D., clerk in your diocese, you cause to bo made 
 which lately before us in our High Court of Justice in a certain action 
 [or certain actions, as the case may be} wherein A.B. is plaintiff and C.D. 
 is defendant [or in a certain matter there depending, intituled " In the 
 matter of E.F." as the case may fe],by a judgment [or order, as the cane 
 may be} of our said Court bearing date the day of 
 
 was adjudged [or ordered, as the case may be} to be paid by the said C.D. 
 to the said A.B., together with interest on the said sum of 
 at the rate of per centum per annum, from the 
 
 da y of and hay e that money, together with such interest as 
 
 aforesaid before us in our said Court immediately after the execution 
 hereof, to be rendered to the said A.B., for that our sheriff of
 
 6SO FORMS UNDER THE SUPREME 
 
 returned to us in our said Court on [or " at a day 
 
 now past"] that the said C.D. had not any goods or chattels or any lay 
 fee in his bailiwick whereof he could cause to he made the said 
 and interest aforesaid or any part thereof, and that the said C.D. was a 
 beneficed clerk (to wit) rector of theiectory [or vicar of the vicarage] and 
 parish church of , in the said sheriff's county, and within your 
 
 diocese [as in the return], and in what manner you shall have executed, 
 this our writ make appear to us in our said Court immediately after the 
 execution hereof, and have you there then this writ. Witness ourself at 
 Westminster, the day of in the year of our 
 
 Lord 
 
 See Order XLI1I, Rule 2, of the present Act, p. 481, supra, 
 and from No. 5 of this Appended. 
 
 6. Writ of Fieri Facias to the Archbishop de bonis Ecchsiasticis 
 
 during the vacancy of a Bishop's See. 
 
 Victoria [&c. as in the preceding form] : To the Right Reverend Father in 
 God [John] by Divine Providence Lord Archbishop of Canterbury, Primate 
 of all England and Metropolitan, greeting : We command you, that of 
 the ecclesiastical goods of C.D., clerk in the diocese of 
 which is within the province of Canterbury, as ordinary of that church 
 the episcopal see of now being vacant, you cause to be 
 
 made [&c., conclude as in the preceding form]. 
 
 See Order XLIII, Rule 2, of the present Act, p. 481, supra, 
 and from No. 4 of this Appendix. 
 
 6. Writ of Sequestrari Facias de bonis Ecclesiasticis. 
 
 1875. B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. ... Plaintiff, 
 
 and 
 
 C.D. and others - - Defendants. 
 
 Victoria, by the Grace of God of the United Kingdom of Great Britain 
 and Ireland Queen, Defender of the Faith ; To the Right Reverend 
 Father in God [John] by Divine permission Lord Bishop of 
 greeting : Whereas we lately commanded our sheriff of that 
 
 he should omit not, by reason of any liberty of his county, but that he 
 should enter the same, and cause [to be made, if after the return to a fieri 
 facias, or delivered, if after the return to an elegit, $c., and in either case 
 recite the former writ.] And whereupon our said sheriff of on 
 
 [or " at a day past "] returned to us in the division 
 
 of our said court of justice, that the said C.D. was a beneficed clerk ; that 
 is to say rector of the rectory [or vicar of the vicarage J and parish church
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 631 
 
 of in the county of , and within your diocese, 
 
 and that he had not any goods or chattels, or any lay fee in his bailiwick 
 \hre follow the words of the sheriff's return^ Therefore we command 
 you that you enter into the said rectory [or vicarage] and parish church 
 of , and take and sequester the same into your possession, 
 
 and that you hold the same in your possession until you shall have levied 
 the said and interest aforesaid, of the rents, tithes, rentchargea 
 
 in lieu of tithes, oblations, obventions, fruits, issues, and profits thereof, 
 and other ecclesiastical goods in your diocese of and belonging to the said 
 rectory [or vicarage] and parish church of and to the said 
 
 C.D. as rector [or vicar] thereof to be rendered to the said A.B., and 
 what you shall do therein make appear to us in our said court immediately 
 after the execution hereof, and have you there then this writ. Witness 
 ourself at Westminister the day of in the 
 
 year of our Lord 
 
 See Order XLIII, Rule 2 of the present Act, p. 481, supra. 
 
 7 . Writ of Possession. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between-4.fi. - - - Plaintiffs, 
 
 and 
 
 C.D. and others - Defendants. 
 
 Victoria, to the sheriff of , greeting : 
 
 Whereas lately in our High Court of Justice, by a judgment of the 
 
 division of the same coui't [A.B. recovered] or [E.F. was 
 
 ordered to deliver to A.B.] possession of all that with 
 
 the appurtenances in your bailiwick : Therefore, we command you that 
 
 you omit not by reason of any liberty of your county, but that you enter 
 
 the same, and without delay you cause the said A. B. to have possession of 
 
 the said land and premises with the appurtenances. And in what manner 
 
 you have executed this our writ make appear to the Judges of the 
 
 division of our High Court of Justice immediately 
 
 after the execution hereof, and have you there then this writ. Witness, &c. 
 
 See Order XLII, Rule 3, of the present Act, p. 467, supra, 
 
 and Order XLVIII, p. 492, supra. 
 
 8. Writ of Delivery. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. - . . Plaintiff, 
 
 and 
 C.D. and others - - Defendants.
 
 632 FORMS UNDER THE SUPREME 
 
 Victoria, by the Grace of God of the United Kingdom of Great Britain 
 and Ireland Queen, Defender of the Faith, to the sheriff of greet- 
 
 ing : "We command you, that without delay you cause the following 
 chattels, that is to say [here enumerate the chattels recovered by the judg - 
 inent for the return of which execution has been ordered to issue'], to be re- 
 turned to A.B., which the said A.B. lately in our recovered 
 against C.D. [or C.D. was ordered to deliver to the said A.B.] in an 
 action in the division of our said Court. And we further 
 command you, that if the said chattels cannot be found in your bailiwick, 
 you distrain the said all C.D. by all his lands and chattels in your baili- 
 wick, so that neither the said C.D. nor any one for him do lay 
 hands on the same until the said C.D. render to the said A.B. the said 
 chattels ; and in what manner you shall have executed this our writ make 
 appear to the Judges of the division of our High Court of Justice, imme- 
 diately after the execution hereof, and have you there then this writ. 
 Witness, &c. 
 
 The Like, but instead of a Distress until the Chattel is returned, commanding 
 the Sheriff to levy on defendant's Goods the assessed value of it. 
 
 [Proceed as in the preceding form until the*, and then thus :] And we 
 further command you, that if the said chattels cannot be found in your 
 bailiwick, of the goods and chattels of the said C.D. in your bailiwick you 
 cause to be made [the assessed value of the chattels'], and in 
 
 what manner you shall have executed this our writ make appear to the 
 Judges of the division of our High Court of Justice at West- 
 
 minster, immediately after the execution hereof, and have you there then 
 this writ. Witness, &c. 
 
 See Order XLII, Rule 4, of the present Act, p. 467, supra, 
 and Order XLTX, p. 493. 
 
 These two Forms are copied from the 34th and 35th Forms 
 in the Schedule to the Reg. Gen,, Mich. Vac., 1854. 
 
 9. Writ of Attachment. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Division. 
 Between A.B. ... Plaintiff, 
 
 and 
 
 C.D. and others ... Defendants. 
 Victoria, &c. 
 
 To the sheriff of greeting : 
 
 We command you to attach C.D. so as to have him before us in the 
 
 division of our High Court of Justice wheresoever 
 
 the said Court shall then be, there to answer to us, as well touching a con-
 
 COURT OF JUDICATURE ACTS 1873 AND 1875. 633 
 
 tempt which he it is alleged hath committed against us, as also such other 
 matters as shall be then and there laid to his charge, and further to per- 
 form and abide such order as our said Court shall make in this behalf, 
 and hereof fail not, and bring this writ with you. Witness, &c. 
 
 See Order XLII, Rules 2, 4, 5, 6 of the present Act, pp. 467-8, 
 supra ; and Order XLTV, Rules 1 and 2, p, 482, supra. 
 
 10. Writ of Sequestration. 
 
 187 . B. No 
 In the High Court of Justice, 
 
 Division. 
 Between A.E. - - Plaintiff, 
 
 and 
 C.D. and others ... Defendants. 
 
 Victoria, &c. 
 
 To [names of not less than four Commissioners'] greeting : 
 Whereas lately in the division of our High Court of 
 
 Justice in a certain action there depending, wherein AM. is plain tiff and 
 C.D. and others are defendants [or, in a certain matter then depending, 
 intituled "In the matter of JE.F.," as the case may be] by a judgment [or 
 order as the case may be] of our said Court made in the said action [or 
 matter], and bearing date the day of 187 , it 
 
 was ordered that the said C.D. should [pay into Court to the credit of the 
 said action the sum of or as the case may be]. Know ye, 
 
 therefore, that we, in confidence of your prudence and fidelity, have 
 given, and by these presents do give to you, or any three or two of you, 
 full power and authority to enter upon all the messuages, lands, tenements, 
 and real estates whatsoever of the said C.D., and to collect, receive, and 
 sequester into your hands not only all the rents and profits of his said 
 messuages, lands, tenements, and real estate, but also all his goods, chattels, 
 and personal estates whatsoever, and therefore we command you, any 
 three or two of you, that you do at certain proper and convenient days 
 and hours, go to and enter upon all the messuages, lands, tenements, and 
 real estates of the said C.D. and that you do collect, take, and get into 
 your hands not only the rents and profits of his said real estate, but also 
 all his goods, chattels, and personal estate, and detain and keep the same 
 under sequestration in your hands until the said C.D. shall pay into Court 
 to the credit of the said action the sum of [or as the ease 
 
 may be,] clear his contempt, and our said Court make other order to the 
 contrary. Witness, &c. 
 
 See Order XLII, Rules 2, 4, and 6 of the present Act, 
 pp. 467-8, supra ; and Order XL VII., p. 490, supra.
 
 634 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 SECOND SCHEDULE. 
 
 Session and 
 Chapter. 
 
 Title. 
 
 Extent of Repeal. 
 
 6 Geo. 4, 
 c. 84. 
 
 32 & 33 
 
 Viet. c. 71 
 
 32 & 33 
 Viet. c. 83 
 
 36 & 37 
 Viet. c. 66 
 
 An Act to provide for the aug- 
 menting the salaries of the 
 Master of the Rolls and the 
 Vice Chancellor of England, 
 the Chief Baron of the Court 
 of Exchequer, and the Puisne 
 Judges and Barons of the 
 Courts in Westminster Hall, 
 and to enable His Majesty to 
 grant an annuity to such Vice 
 Chancellor, and additional 
 annuities to such Master of 
 the Rolls, Chief Baron, and 
 Puisne Judges and Barons 
 on their resignation of their 
 respective offices. 
 
 The Bankruptcy Act, 1869 - 
 
 The Bankruptcy Repeal and 
 Insolvent Court Act, 1869. 
 
 Supreme Court of Judicature 
 Act, 1873. 
 
 Section seven. 
 
 Section one hundred and 
 sixteen from " provided that 
 at any time," inclusive, to 
 end of the section. 
 
 Section nineteen from "pro- 
 vided that at any time," in- 
 clusive, to end of the section. 
 
 So much of sections three and 
 sixteen as relates to the Lon- 
 don Court of Bankruptcy, sec- 
 tion six, section nine, section 
 ten, so much of section thirteen 
 as relates to Additional judges 
 of the Court of Appeal, section 
 thirty-four from " all matters 
 pending in the London Court 
 of Bankrupty" to "London 
 Court of Bankruptcy," sec- 
 tion thirty-five, section forty- 
 eight, section fifty - three, 
 section sixty - three, section 
 sixty - eight, section sixty- 
 nine, section seventy, section 
 seventy-one, section seventy- 
 two, section seventy - three, 
 section seventy-four, and THE 
 
 WHOLE OF THE SCHEDULE. 
 
 This is the Schedule referred to in Section 33 of the present Act. See 
 pp. 265, 266, where a list is given of the other enactments repealed by 
 this Act in addition to those mentioned in this Schedule.
 
 ADDITIONAL KTJLES OF COURT. 635 
 
 ADDITIONAL EULES OF COUET, 
 
 FIRST ORDER IN COUNCIL,* 
 
 OF 12ra AUGUST, 1875. 
 
 At the Court at Osborne House, Isle of "Wight, the 
 12th day of August, 1875. 
 
 PRESENT, 
 The QUEEN'S Most Excellent Majesty in Council. 
 
 WHEREAS by an Act passed in the present Session of 
 Parliament intituled " An Act to amend and ex- 
 tend the Supreme Court of Judicature Act, 1873," it is 
 enacted that Her Majesty may, at anytime after the pass- 
 ing and before the commencement of the said Act, by 
 Order in Council, made upon the recommendation of the 
 Lord Chancellor, the Lord Chief Justice of England, the 
 Master of the Rolls, the Lord Chief Justice of the Common 
 Pleas, the Lord Chief Baron of the Exchequer and the Lords 
 Justices of Appeal in Chancery or any five of them and the 
 other Judges of the several courts intended to be united 
 and consolidated [by the said Principal Act as amended] 
 by the said Act,f or of a majority of such other Judges, 
 make any further or additional Rules of Court for carrying 
 [the said Principal Act and] the said Act into effect, and in 
 particular for all or any of the following matters, so far as 
 they are not provided for by the Rules in the first Schedule 
 to the said Act ; that is to say, (1) For regulating the 
 sittings of the High Court of Justice and the Court of 
 
 * Fwym the " London Gazette" of 24th August, 1875. 
 t See Order LXIII. of the Schedule. The words in brackets are 
 surplusage.
 
 636 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Appeal, and of any Divisional or other Courts thereof re- 
 spectively, and of the Judges of the said High Court sitting 
 in chambers ; and (2) For regulating the pleadings, prac- 
 tice and procedure in the High Court of Justice and Court 
 of Appeal ; and (3) Generally for regulating any matters 
 relating to the practice and procedure of the said courts 
 respectively or to the duties of the officers thereof or of 
 the Supreme Court, or to the COSTS of proceedings therein : 
 Now, therefore, Her Majesty, in pursuance of the said 
 Act and by and with the advice of Her Privy Council, 
 and upon the recommendation of the Lord Chancellor, 
 the Lord Chief Justice of England, the Master of the 
 Bolls, the Lord Chief Justice of the Common Pleas, the 
 Lord Chief Baron of the Exchequer and the Lords Justices 
 of Appeal in Chancery and a majority of the other Judges 
 of the several Courts intended to be united and consolidated 
 by the said Principal Act as amended by the said Act, is 
 pleased to make and issue the additional Rules of Court 
 following for the purposes aforesaid. 
 
 C. L. Peel. 
 
 ADDITIONAL RULES OF COURT UNDER THE SUPREME 
 
 COURT OF JUDICATURE ACT, 1875, s. 17. 
 
 (Orders I to V, Printing.} 
 
 ORDER I. 
 
 Where any written deposition of a witness has been filed 
 for use on a trial, such deposition shall be printed, unless 
 
 otherwise ordered. 
 
 (See Order XXXVII., Eule 4 of the Schedule, p. 450, and Order in 
 Chancery of 16th May, 1862, Rule 4.) 
 
 ORDER II. 
 
 The Rules of Court as to printing depositions and affi- 
 davits to be used on a trial shall not apply to depositions
 
 ADDITIONAL RULES OF COURT. 637 
 
 and affidavits which have previously been used upon any 
 proceeding without having been printed. 
 
 (See Order XXXVIII., Rule 6, of the Schedule, p. 452.) 
 
 ORDER III. 
 
 Other affidavits than those required to be printed by 
 Order XXXVIII., Rule 6, in the Schedule to the Supreme 
 Court of Judicature Act, 1875, may be printed if all the 
 parties interested consent thereto, or the Court or Judge so 
 order. 
 
 (This was Order LVL, Rule 6, of the Schedule, originally). 
 
 ORDER IV. 
 
 The 3rd Rule of the Order XXXIV., in the first Schedule 
 to the Supreme Court of Judicature Act, 1875, shall apply 
 to a special case, pursuant to the Act of 13 and 14 Victoria, 
 c. 35. 
 
 (See pp. 421,422). 
 
 ORDER V. 
 
 Where, pursuant to Rules of Court, any pleading, spe- 
 cial case, petition of right,* deposition, or affidavit is to be 
 printed, and where any printed or other office copy thereof 
 is to be taken, the following regulations shall be observed : 
 
 1. The party on whose behalf the deposition or affidavit 
 
 is taken and filed is to print the same in the manner 
 provided by KULE 2 OF ORDER LVI. in the first 
 Schedule to the Supreme Court of Judicature Act, 
 1875. 
 
 (See Order IX., Rule 3 of Chancery Orders). 
 
 2. To enable the party printing, to print any deposition, 
 
 the officer with whom it is filed shall on demand 
 
 * See the Petitions of Right Act, 1860 (23 & 24 Viet., c. 34), and 
 Chancery Order of 1st February, 1862.
 
 638 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 deliver to such party a copy written on draft paper 
 on one side only. 
 (Compare Order in Chancery of 16th May, 1862, Rule 3). 
 
 3. The party printing shall, on demand in writing, 
 
 furnish to any other party or his solicitor any 
 number of printed copies, not exceeding ten, upon 
 payment there tor at the rate of ONE PENNY PER 
 FOLIO for one copy, and ONE HALFPENNY PER 
 FOLIO for every other copy. 
 
 Under the former Chancery practice the defendant could demand ten 
 printed copies of the Bill (Order IX., Rule 5), at |d. per folio (Order XL., 
 Rule 19) ; and the plaintiff could demand one printed office copy of the 
 answer at 4d. per folio, and ten other printed copies at gd. per folio (Order 
 of 6th March, 1860, Rules 6, 7, and 8). Subject thereto, parties delivering 
 to other parties on demand copies of the pleadings, were entitled to charge 
 4d. per folio (pauper parties charged and paid 1 Jd. per folio). (Regul. as 
 to fees, Hil. T. 1860, IV., 1, 2, 3). 
 
 4. The solicitor of the party printing shall give credit 
 
 for the whole amount payable by any other party 
 for printed copies. 
 (i.e., to the party printing). 
 
 5. The party entitled to ba furnished with a print shall not 
 
 be allowed any charge in respect of a written copy, 
 unless the Court or Judge shall otherwise direct. 
 
 (Taken from Chancery Order XL, Rule 8, and Order of Mar. 6, 1860, 
 Rule 13.) 
 
 6. The party by or on whose behalf any deposition, 
 
 affidavit, or certificate is filed, shall leave a copy 
 with the officer with whom the same is filed, who 
 shall examine it with the original and mark it as 
 an office copy ; such copy shall oe a copy printed as 
 above provi led where such deposition or affidavit is 
 to be printed. 
 
 (Taken from Chancery Orders of Mar. 6, 1860, Rules 2 and 3, and 16th 
 May, 1864, Rule 3, and Order XXXVI, Rule 2.) 
 
 7. The party or solicitor who has taken any printed or 
 
 written office copy of any deposition or affidavit is
 
 ADDITIONAL RULES OF COURT. 639 
 
 to produce the same upon every proceeding to which 
 the same relates. 
 (Copied from Chancery Order XXXVI, Rule 10.) 
 
 8. Where any party is entitled to a copy of any deposi- 
 
 tion, affidavit, proceeding or document tiled or 
 prepared by or on behalf of another party, which is 
 
 NOT REQUIRED TO BE PRINTED, Such COpy shall be 
 
 furnished by the party by or on whose behalf the 
 same has been filed or prepared. 
 (Copied from Chancery Order XXXVI, Rule 5.) 
 
 9. The party requiring any such copy, or his solicitor, is 
 
 to make a written application to the party by whom 
 the copy is to be furnished, or his solicitor, with an 
 undertaking to pay the proper charges, and there- 
 upon such copy is to be made and ready to be 
 delivered at the expiration of TWENTY-FOUR HOURS 
 after the receipt of such request and undertaking, 
 or within such other time as the Court or Judge 
 may in any case direct, and is to be furnished 
 accordingly upon demand and payment of the 
 proper charges. 
 
 (Copied from Chancery Order XXXVI, Rules 4 and 6, " 24 " being 
 substituted for " 48 " hours.) 
 
 10. In the case of an ex parts aplication for an injunction 
 
 or writ of ne exeat regno, the party making such 
 application is to furnish copies of the affidavits upon 
 which it is granted upon payment of the proper 
 charges immediately upon the receipt of such 
 written request and undertaking as aforesaid, or 
 within such time as may be specified in such 
 request, or may have been directed by the 
 Court. 
 
 (Copied from Chancery Order XXXVI, Rule 9.)
 
 640 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 U . It shall be stated in a note at the foot of every 
 affidavit filed on whose behalf it is so filed, and 
 such note shall be printed on every printed copy of 
 an affidavit or set of affidavits, and copied on every 
 office copy and copy furnished to a party. 
 
 (Partly taken from Chancery Order of 5 Feb. 1861.) 
 
 12. The name and address of the party or solicitor by 
 whom any copy is furnished is to be endorsed there- 
 on in like manner as upon proceedings in court, and 
 such party or solicitor is to be answerable for the 
 same being a true copy of the original, or of an 
 office copy of the original, of which it purports to 
 be a copy, as the case may be. 
 
 (Copied from Chancery Order XXXVI, Rule 8.) 
 
 13. The folios of all printed and written office copies, 
 and copies delivered or furnished to a party, 
 shall be numbered consecutively in the margin 
 thereof, and such WRITTEN copies shall be written 
 in a neat and legible manner on the same paper 
 as in the case of printed copies. 
 
 (Copied from Chancery Order XXXVI, Rules 8 and 11.) 
 
 14. In case any party or solicitor who shall be required 
 
 to furnish any such written copy as aforesaid shall 
 either refuse or, for twenty-four hours from the 
 time when the application for such copy has been 
 made, neglect to furnish the same, the person by 
 whom such application shall be made shall be at 
 liberty to procure an office copy from the office in 
 which the original shall have been filed, and in such 
 case no costs shall be due or payable to the solicitor so 
 making default in respect of the copy or copies so 
 applied for. 
 (Copied from Chancery Order XXXVI, Rule 12.)
 
 ADDITIONAL RULES OF COURT. 641 
 
 15. Where by any order of the Court (whether of appeal 
 or otherwise), or a Judge, any pleading, evidence, or 
 other document is ordered to be printed, the Court 
 or Judge may order the expense of printing to be 
 borne and allowed, and printed copies to be 
 furnished by and to such parties and upon such 
 terms as shall be thought fit. 
 
 COSTS. 
 ORDER YI. 
 
 The following regulations as to COSTS of proceedings in 
 the Supreme Court of Judicature shall regulate such costs 
 from the commencement of the Supreme Court of Judicature 
 Acts, 1873 and 1875 : 
 
 1. Solicitors shall be entitled to charge and be allowed 
 the fees set forth in the column headed " LOWER SCALE " 
 in the Schedule hereto 
 
 (Copied from the Chancery Regulations as to fees, 1860.) 
 
 In all actions for purposes to which any of the forms of 
 indorsement of claims on writs of summons in Sections II, 
 IV, and VII, in Part II of Appendix (A.), referred to in 
 the 3rd Rule of Order III, in the Schedule to the Supreme 
 Court of Judicature Act, 1875, or other similar forms, are 
 applicable (except as after provided in actions for injunc- 
 tions) : 
 
 (The Sections referred to contain Common Law indorsements for debt 
 and damages, &c., special and otherwise.) 
 
 In all causes and matters by the 34th Section of the 
 Supreme Court of Judicature Act, 1873, assigned to the 
 Queen's Bench Division of the Court; 
 
 (See p. 84.) 
 41
 
 642 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 In all causes and matters by the 34th Section of the said 
 Act assigned to the Common Pleas Division of the Court. 
 
 (See p. 85.) 
 
 In all causes and matters by the 34th Section of the said 
 Act assigned to the Exchequer Division of the Court ; 
 
 (See p. 85.) 
 
 In all causes and matters by the 34th Section of the 
 said Act assigned to the Probate, Divorce, and Admiralty 
 Division of the Court ; 
 
 (See p. 86.) 
 
 And also in causes and matters by the 34th Section of 
 the said Act assigned to the Chancery Division of the 
 Court in the following cases (that is to say) : 
 
 (Seep. 83.) 
 
 1 . By creditors, legatees (whether specific, pecuniary, or 
 
 residuary), devisees (whether in trust or otherwise), 
 heirs-at-law or next-of-kin, in which the personal or 
 real or personal and real estate for or against or in 
 respect of which or for an account or administration 
 of which the demand may be made shall be under 
 the amount or value of 1,000. 
 
 2. For the execution of trusts or appointment of new 
 
 trustees in which the trust estate or fund shall be 
 under the amount or value of 1,000. 
 
 3. For dissolution of partnership or the taking of partner- 
 
 ship or any other accounts in which the partnership 
 assets or the estate or fund shall be under the amount 
 or value of 1,000. 
 
 4. For foreclosure or redemption, or for enforcing any 
 
 charge or lien in which the mortgage whereon the 
 suit is founded, or the charge or lien sought to be 
 enforced, shall be under the amount or value of 
 1,000.
 
 ADDITIONAL RULES OF COURT. 643 
 
 5. And for specific performance in which the purchase- 
 
 money or consideration shall be under the amount 
 or value of 1,000. 
 
 6. In all proceedings under the Trustees Relief Acts, or 
 
 under the Trustees Act, or under any such Acts, in 
 which the trust estate or fund to which the proceed- 
 ing relates shall be under the amount or value of 
 1,000. 
 
 7. In all proceedings relating to the guardianship or 
 
 maintenance of infants, in which the property of 
 the infant shall be under the amount or value of 
 1,000. 
 
 8. In all proceedings by original special case, and in all 
 
 proceedings relating to funds carried to separate 
 accounts, and in all proceedings under any railway 
 or private Act of Parliament, or under any other 
 statutory or summary jurisdiction, and generally 
 in all other cases where the estate or fund to be 
 dealt with shall be under the amount or value of 
 1,000. 
 
 (Subsections 1, 2 (except as to new trustees), 4, 5, 6, 7, 8, are copied 
 verbatim from the Chancery Regulations as to Fees, 1860. 
 
 As to the 1,000, see Ilockton v. Peake, 12 W. R., 1025; Re Reece, 
 2 L. R. Eq. 609.) 
 
 2. Solicitor (sic) shall be entitled to charge and be allowed 
 the fees set forth in the column headed " HIGHER SCALE " 
 in the Schedule hereto in all actions for special injunctions 
 to restrain the commission or continuance of waste, 
 nuisances, breaches of covenant, injuries to property and 
 infringement of rights, easements, patents and copyrights, 
 and other similar cases where the procuring such injunction 
 is the principal relief sought to be obtained, and in all 
 cases other than those to which the fees in the column 
 headed " lower scale " are he'reby made applicable. 
 
 (See Chancery Regulations as to Fees, 1860, II., 2.) 
 
 42
 
 644 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 3. Notwithstanding these Rules, the Court or Judge may 
 in any case direct the fees set forth in either of the said 
 two columns to be allowed to all or either or any of the 
 parties, and as to all or any part of the costs. 
 
 4. The provisions of Order LXIII., in the first Schedule 
 to the Supreme Court of Judicature Act, 1875, shall apply 
 to these Rules. 
 
 (Order LXIII is the Interpretation Clause.) 
 
 The SCHEDULE above referred to. 
 
 (An Order or Rule herein referred to by number shall mean the Order or Rule 
 so numbered in the Jirst Schedule to the Supreme Court of Judicature 
 
 Act, 1875. See pp. 649, 65<y. 
 
 Lower Higher 
 
 WRITS, SUMMONSES, AND WARRANTS. Scaie. Scale. 
 
 . d. i. d. 
 Writ of summons for the commencement of any 
 
 action ; 6 8 0134 
 
 And for endorsement of claim, if special . . ..050 050 
 
 Concurrent writ of summons .. .. ..068 068 
 
 Eenewal of a writ of summons .. .. ..068 068 
 
 Notice of a writ for service in lieu of writ out of 
 
 jurisdiction .. .. .. .. ..040 050 
 
 Writ of inquiry .. .. .. .. ..110 110 
 
 Writ of mandamus or injunction .. .. ..0100 110 
 
 Or per folio . ;. .. . , .. ..014 014 
 
 Writ of subpoena ad testifitandum duces tecum ..068 068 
 And if more than four folios, for each folio beyond 
 
 four 1 4 014 
 
 Writ or writs of subpoena ad testificandum for any 
 
 number of persons not exceeding three, and 
 
 the same for every additional number not 
 
 exceeding three 068 068 
 
 Writ of distringas, pursuant to statute 5 Vict.,c. 8.* 013 4 013 4 
 Writ of execution, or other writ to enforce any 
 
 judgment or order 070 0100 
 
 And if for more than four folios, for each folio 
 
 beyond four .. .. .. .. ..014 014 
 
 Procuring a writ of execution or notice to the 
 
 sheriff, marked with a seal of renewal ..068 068 
 
 Notice thereof to serve on sheriff 040 050 
 
 Any writ not included in the above . . . . 070 0100 
 
 * It should be c. 5. See pp. 489, 490.
 
 ADDITIONAL RULES OF COURT. 645 
 
 Lower Higher 
 
 Scale. Scale. 
 
 e. d. i. d. 
 
 These fees include all endorsements and copies, 
 or pracipes, for the officer sealing them, and 
 attendances to issue or seal, but not the Court 
 fees. 
 
 Summons to attend at Judge's chambers .. ..030 068 
 Or if special, at taxing officer's discretion, not 
 
 exceeding 068 110 
 
 Copy for the Judge, when required.. .. ..020 020 
 
 Or per folio 004 
 
 Original summons for proceedings in chambers in 
 
 the Chancery division 0134 110 
 
 And attending to get same and duplicate sealed, 
 
 and at the proper office to file duplicate and 
 
 get copies for service stamped .. .. ..0134 0134 
 
 Copy for the Judge 020 020 
 
 Or per folio .. 004 
 
 Endorsing same and copies under 8th Rule of the 
 
 35th of the Consolidated General Orders of the 
 
 Court of Chancery .. .. .. ..068 068 
 
 SERVICES, NOTICES, AND DEMANDS: 
 Service of any writ, summons, warrant, interroga- 
 tories, petition, order, notice, or demand on 
 
 a party who has not entered an appearance, and 
 
 if not authorised to be served by post . . ..050 050 
 If served at a distance of more than two miles from 
 
 the nearest place of business, or office of the 
 
 solicitor serving the same, for each mile beyond 
 
 such two miles therefrom .. .. ..010 010 
 
 Where in consequence of the distance of the party 
 
 to be served, it is proper to effect such service 
 
 through an agent (other than the London 
 
 agent) , for correspondence in addition ..070 070 
 
 Where more than one attendance is necessary to 
 
 effect service, or to ground an application for 
 
 substituted service, such further allowance may 
 
 be made as the taxing officer shall think fit. 
 For service out of the jurisdiction such allowance 
 
 is to be made as the taxing officer shall think fit. 
 Service where an appearance has been entered on 
 
 the solicitor or party .. .. .. ..026 026 
 
 Or if authorised to be served by post . . ..016 016 
 
 Where any writ, order, and notice, or any two of 
 
 them, have to be served together, one fee only 
 
 for service is to be allowed.
 
 645A SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Lower Higher 
 
 Scale. Scale. 
 
 a. a. s. a. 
 In addition to the above fees, the following 
 
 allowances are to be made : 
 As to writs, if exceeding two folios, for copy for 
 
 service, per folio beyond such two .. .'.004 004 
 As to summons to attend at the Judges' Chambers- 
 
 for each copy to serve .. .. .. ..010 020 
 
 Or per folio .. .. 004 004 
 
 As to notices in proceedings to -wind up companies, 
 for preparing or filling up each notice to cre- 
 ditors to attend and receive debts, and to contri- 
 
 butories to settle list of contributories ..010 010 
 And for preparing or filling up each notice to con- 
 tributories to be served with a general order 
 
 for a call, or an order for payment of a call ..010 010 
 And for drawing notice to be served on contribu- 
 tories or creditors of a meeting, per folio ..01-0 010 
 For each copy of the last-mentioned notice to serve, 
 
 per folio .. ,.004 004 
 
 For preparing or filling up for service' in any other 
 cause or matter, each notice to creditors to 
 prove claims, and each notice that cheques may 
 be received, specifying the amount to be received 
 
 for principal and interest, and costs, if any ..010 010 
 For preparing notice to produce or admit, and one 
 
 copy .... .. ... ... ..050 076 
 
 If special or necessarily long, such allowance as 
 the taxing officer shall think proper, not ex- 
 ceeding per folio . . . . . . , . ..008 014 
 
 And for each copy beyond the first, such allowance 
 as the taxing-master shall think proper, not 
 exceeding per folio .. .. . . ..004 004 
 
 For preparing notice of. motion .. .. ..020 050 
 
 Or per folio .. ... 010 010 
 
 Copy for service 010 010 
 
 Or per folio 004 
 
 For preparing any necessary or proper notice, not 
 
 otherwise provided for and demand . . ..016 016 
 Or if special, and necessarily exceeding three 
 folios, for preparing same, for each folio beyond 
 
 three .. ..010 010 
 
 And for each copy for. serviqe, per folio beyond 
 
 such three 004 004 
 
 Copies for service of interrogatories and petitions, 
 and of orders with necessary notices (if any) 
 to accompany, per folio .. .. ..004 004
 
 ADDITIONAL RULES OF COURT. 646 
 
 Lower Higher 
 
 Scale. Scale. 
 
 s. d. s. d. 
 Except as otherwise provided, the allowances for 
 
 services include copies for service. 
 Where notice of filing affidavits is required, only 
 
 one notice is to be allowed for a set of affidavits 
 
 filed, or which Ought to be filed together. 
 In proceedings to wind up a company, the usual 
 
 charges relating to printing shall be allowed 
 
 in lieu of copies for service, where the'fee for 
 
 copies would exceed the charges for printing, 
 
 and amount to more than 3. 
 
 Where any appointment is or ought to be ad- 
 journed, service of a notice of the adjournment, 
 
 or next appointment, is not to be allowed. 
 
 APPEARANCES. 
 
 Entering any appearance .. .. .. ..068 068 
 
 If entered at one time, for more than one person, 
 
 for every defendant beyond the first . . ..010 020 
 
 If a person appearing to a writ of summons to 
 recover land limits his defence by his memo- 
 randum of appearance, in addition to the above 068 068 
 
 INSTRUCTIONS. 
 
 To sue or defend .. ., ..*' .. ..068 0134 
 
 For statement of complaint .." ..'" .. .. 013 4 2 2 
 
 For statement or further statement of defence ..068 13 4 
 
 For counter claim .. .. .. .. ..068 0134 
 
 For reply by plaintiff when defendant sets up a 
 
 counter-claim .. .. .. .. ..0134 110 
 
 For reply or further reply in any other case by 
 plaintiff or other person, with or without 
 joinder of issue 068 013 4 
 
 For confession of defence ..'' ..' ..'' . . ' 6 8 013 4 
 
 For joinder of issue without other matter, and for 
 
 demurrer.. 068 0134 
 
 For special case, special petition, any other plead- 
 ing (not being a summons), and interroga- 
 tories for examination of a party or witness .. 068 13 4 
 
 To amend any pleading .. .. .. ..068 0134 
 
 For affidavits in answer to interrogatories, and 
 
 other special affidavits 068 068 
 
 To appeal 13 4 110 
 
 To add parties by order of Court or Judge . . G 8 0134
 
 646A SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Lower 
 
 Higher 
 
 Scale. 
 
 Scale. 
 
 
 
 
 . 
 
 d. 
 
 
 
 *. 
 
 d. 
 
 For counsel to advise on evidence when the evi- 
 
 
 
 
 
 
 
 dence in chief is to be taken orally 
 
 
 
 6 
 
 8 
 
 
 
 6 
 
 8 
 
 Or not to exceed 
 
 
 
 13 
 
 4 
 
 I 
 
 I 
 
 
 
 For counsel to make any application to a Court or 
 
 
 
 
 
 
 
 Judge where no other brief 
 
 
 
 6 
 
 8 
 
 
 
 10 
 
 
 
 For brief on motion for special injunction 
 
 
 
 13 
 
 4 
 
 1 
 
 1 
 
 
 
 For brief on hearing or trial of action upon notice 
 
 
 
 
 
 
 
 of trial given, whether such trial be before a 
 
 
 
 
 
 
 
 Judge, with or without a Jury, or before an 
 
 
 
 
 
 
 
 official or special Referee, or on trial of an issue 
 
 
 
 
 
 
 
 of fact before a Judge, Commissioner, or 
 
 
 
 
 
 
 
 Referee, or on assessment of damages 
 
 1 
 
 1 
 
 
 
 2 
 
 2 
 
 
 
 For such brief, and for brief on the hearing of an 
 
 
 
 
 
 
 
 appeal when witnesses are to be examined or 
 
 
 
 
 
 
 
 cross-examined, such fee maybe allowed as the 
 
 
 
 
 
 
 
 taxing officer shall think fit, having regard to 
 
 
 
 
 
 
 
 all the circumstances of the case, and to other 
 
 
 
 
 
 
 
 allowances, if any, for attendances on witnesses 
 
 
 
 
 
 
 
 and procuring evidence. 
 
 
 
 
 
 
 
 The fees for instructions for brief are not to apply 
 
 
 
 
 
 
 
 to a hearing on further consideration. 
 
 
 
 
 
 
 
 DRAWING PLEADINGS AND OTHER DOCUMENTS. 
 
 Statement of claim . . . . . . 
 
 
 
 10 
 
 
 
 1 
 
 1 
 
 
 
 
 o 
 
 1 
 
 
 
 
 
 1 
 
 o 
 
 Statement of defence . . 
 
 
 
 5 
 
 
 
 
 
 10 
 
 
 
 
 
 
 1 
 
 o 
 
 o 
 
 1 
 
 
 
 Statement of defence and counter claim . . . . 
 
 
 
 5 
 
 
 
 1 
 
 1 
 
 
 
 
 
 
 1 
 
 o 
 
 o 
 
 1 
 
 o 
 
 Reply, with or without joinder of issue, confession 
 
 
 
 
 
 
 
 of defence, joinder of issue without other 
 
 
 
 
 
 
 
 matter, demurrer, and any other plead ing (not 
 
 
 
 
 
 
 
 being a petition or summons) and amendments 
 
 
 
 
 
 
 
 of any pleading . . . . . . ' . . 
 
 
 
 5 
 
 
 
 
 
 10 
 
 
 
 
 
 
 1 
 
 o 
 
 o 
 
 1 
 
 o 
 
 Particulars, breaches and objections, when re- 
 
 
 
 
 
 
 
 quired, and one copy to deliver 
 
 
 
 5 
 
 
 
 
 
 6 
 
 8 
 
 Or such amount as the taxing officer shall think 
 
 
 
 
 
 
 
 fit, not exceeding per folio . . 
 
 
 
 
 
 8 
 
 
 
 1 
 
 4 
 
 If more than one copy to be delivered, for each 
 
 
 
 
 
 
 
 other copy per folio . . . . . . 
 
 
 
 
 
 4 
 
 
 
 
 
 4 
 
 Special case, whether original or in action, affi- 
 
 
 
 
 
 
 
 davits in answer to interrogatories and other 
 
 
 
 
 
 
 
 special affidavits, special petitions, and inter- 
 
 
 
 
 
 
 
 rogatories, per folio . . . . . . 
 
 
 
 1 
 
 
 
 
 
 I 
 

 
 ADDITIONAL RULES OF COURT. 647 
 
 Lower Higher 
 
 Scale. Scale. 
 
 Brief, on trial or hearing of cause, issue of fact, s. d. . d. 
 assessment of damages, examination of wit- 
 nesses, demurrer, special case and petition 
 before a Court or Judge, Sheriff, Commis- 
 sioner, Referee, examiner, or officer of the 
 Court, when necessary and proper in addition 
 to pleadings, including necessary and proper 
 observations, per folio .. .. .. ..010 010 
 
 Brief on application to add parties .. .. 068 10 
 
 Or per folio 010 010 
 
 Brief on further consideration, per sheet of 10 
 
 folios ..068 068 
 
 Accounts, statements, and other documents for the 
 Judges' chambers, when required, and fair 
 copy to leave, per folio .. .. ..008 014 
 
 Advertisements to be signed by Judge's clerk, in- 
 cluding attendance therefor .. .. ..068 0134 
 
 Bill of costs for taxation, including copy for the 
 
 taxing officer .. ..008 008 
 
 COPIES. 
 
 Of pleadings, briefs, and other documents where no 
 
 other provision is made, at per folio . . ..004 004 
 Where, pursuant to Rules of Court, any pleading, 
 
 special case or petition of right, or evidence 
 
 is printed, the solicitor of the party printing 
 
 shall be allowed lor a copy for the printer 
 
 (except when made by the officer of the Court), 
 
 at per folio .. .. 004 004 
 
 And for examining the proof print, at per folio ..002 002 
 And for printing the amount actually and properly 
 
 paid to the printer, not exceeding per folio ..010 010 
 And in addition for every 20 beyond the first 20 
 
 copies, at per folio .. .. .. ..001 001 
 
 And where any part shall properly be printed in 
 
 a foreign language, or as a,fac simile, or in any 
 
 unusual or special manner, or where any 
 
 alteration in the document being printed be- 
 comes necessary after the first proof, such fur- 
 ther allowance shall be made as the taxing 
 
 officer shall think reasonable. 
 These allowances are to include all attendances on 
 
 the printer.
 
 650 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Lower Higher 
 
 t^cale. Scale. 
 
 n. d. t. J- 
 To inspect, or produce for inspection, documents 
 
 referred to in any pleading or affidavit, pur- 
 suant to notice under Order XXXI., Rule 14, 
 
 (Seep. 412) 068 068 
 
 Or per hour 068 068 
 
 To obtain or give any necessary or proper consent 068 068 
 To obtain an appointment to examine witnesses ..068 068 
 On examination of witnesses before any examiner, 
 
 commissioner, officer, or other person .. .. Q13 4 013 4 
 Or according to circumstances, not to exceed ..220 220 
 Or if without counsel, not to exceed . . . . 330 
 
 On deponents being sworn, or by a solicitor or his 
 
 clerk to be sworn, to an affidavit in answer to 
 
 interrogatories or other special affidavit ..068 068 
 On a summons at Judges' chambers . . . . Q 6 8 068 
 
 Or according to circumstances, not to exceed 1 1 Q 110 
 
 In the Chancery Division, all allowances for 
 
 attending at the Judges' chambers are to be 
 
 by the Judge or chief clerk, as heretofore. 
 To file chief clerks' and taxing masters' certificates, 
 
 and get copy marked as an office copy ..068 068 
 
 On counsel with brief or other papers 
 If counsel's fee one guinea .. .. ..034 068 
 
 If more and under five guineas .. .. ..068 068 
 
 If five guineas and under twenty guineas . . 068 0134 
 
 If twenty guineas 0134 110 
 
 If forty guineas or more .. .. .. .. 220 
 
 On consultation or conference with counsel .. 013 4 013 4 
 
 To enter or set down action, demurrer, special case, 
 
 or appeal, for hearing or trial .. .. ..068 068 
 
 In Court on motion of course and on counsel and 
 
 for order .. .. .. .. .. .. 10 Q 13 4 
 
 To present petition for order of course and for order 068 13 4 
 In Court on every special motion, each day Q 6 8 0134 
 
 On same when heard each day .. .. .. Q 1 3 4 0134 
 
 Or according to circumstances .. .. ..110 220 
 
 On demurrer, special case, or special petition, or 
 
 application adjourned from the Judges' cham- 
 bers, when in the special paper for the day, or 
 
 -likely to be heard 068 0100 
 
 On same when heai .. .. .. .. .. 0134 110 
 
 Or according to cirumstances, not to exceed ..110 220
 
 ADDITIONAL RULES OF COURT. 651 
 
 Lower Higher 
 
 Scale. Scale. 
 
 . d. s. d. 
 On hearing or trial of any cause, or matter, or 
 
 issue of fact, in London, or Middlesex, or the 
 
 town where the solicitor resides or carries on 
 
 business, whether before a Judge with or with- 
 out a Jury, or Commissioner, or Referee, or on 
 
 assessment of damages, when in the paper .. 010 010 
 
 When heard or tried 0134 110 
 
 Or according to circumstances .. .. ..220 220 
 
 When not in London or Middlesex, nor in the 
 
 town where the solicitor resides or carries on 
 
 business, for each day (except Sundays) he is 
 
 necessarily absent .. .. .. . . 2 2 () 330 
 
 And expenses (besides actual reasonable travelling 
 
 expenses) each day, including Sundays . . 1 ]L P 110 
 Or if the solicitor has tp attend on more than one 
 
 trial or assessment at the same time and place, 
 
 in each case .. .. .. .. ..lip 111(S 
 
 The expenses in such case to be rateably divided. 
 
 To hear judgment when same adjourned .. ..068 13 4 
 
 Or according to circumstances .. .. .. 13 4 1 1 .0 
 
 To deliver papers (when required) for the use of a 
 
 Judge prior to a hearing .. .. ,.068 068 
 
 If more than one Judge . . . . . . ..0134 0134 
 
 On taxation of a bill of costs 068 068 
 
 Or according to circumstances, not Ip exceed ..220 220 
 In causes for purposes within the cognizance of the 
 
 Court of Chancery before the Act passed, such 
 
 further fee as the taxing officer may think fit, 
 
 not exceeding the allowances heretofore made. 
 
 To obtain or give an undertaking to appear ..068 068 
 To present a special petition, and for same 
 
 answered .. .. .. .. .. ..068 068 
 
 On printer to insert advertisement in Gazette ..068 068 
 On printer to insert same in other papers, each 
 
 printer .. .. .. .. .. .. 068 
 
 Or every two .. .. .. .. .. ..068 
 
 On registrar to certify that a cause set down is, 
 
 settled, or for any reason not to come into the, 
 
 paper for hearing 068 968 
 
 For an order drawn up by chief clerk, and to ge 
 
 same entered 068 068
 
 652 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Lower Higher 
 
 Scale. Scale; 
 
 s. d. & i. d. 
 
 On counsel to procure certificate that cause proper 
 to be heard as a short cause, and on registrar 
 
 to mark same . ; .4' . * -* ;. 6 8 068 
 To mark conveyancing counsel or taxing master ..068 068 
 For preparing and drawing up an order made at 
 chambers in proceedings to wind-up a com- 
 pany and attending for same, and to get same 
 
 entered .. .. * * 13 4 13 4 
 And for engrossing every such order, per folio . ; 4 004 
 
 NOTE. An order of course means an order 
 made on an ex parte application, and to which a 
 party is entitled as of fight on his own statement 
 and at his own risk. 
 
 OATHS ANB EXHIBITS. 
 Commissioners to take oaths or affidavits; For 
 
 eVery oath, declaration, affirmation, or attesta^ 
 
 tion upon honour, in London or the country ..016 016 
 The solicitor for preparing each exhibit in town or 
 
 country .. . .' " . i . . * ..010 010 
 The commissioner for marking each exhibit . 1 010 
 
 TERM FEES. 
 
 For every term commencing on the day the sit- 
 tings in London and Middlesex of the 1 High 
 
 Court of Justice commence, and terminating 
 
 on the day preceding the next such sittings; 
 
 in which a proceeding in the cause or matter 
 
 by n or affecting the party, other than the 
 
 issuing and serving the writ of summon^, shall 
 
 take place.. .. ,. .. .< .. 15 15 
 And further, in country ag"ency causes or matters. 
 
 for letters .. .. ..060 060 
 
 Where no proceeding in the Cause or matter is taken 
 
 which carries a term fee* a charge for letters may 
 
 be allowed, if the circumstances require it. 
 In addition to the above, an allowance is to be 
 
 made for the necessary expense of postages, 
 
 carriage and transmission of documents. 
 
 N.B. The above Schedule ia nubstituted dike for' the first Schedule to tha 
 Chancery Regulations as toFees, Hil. T., 1860, aud the Schedule to the ".Directions 
 to the Masters," HiL T., 1853
 
 ADDITIONAL RULES OF COURT. 653 
 
 SPECIAL ALLOWANCES AND GET;ERAL PROVISIONS. 
 
 1. As to writs of summons requiring special endorse- 
 ment, original special cases, pleadings and affidavits in 
 answer to interrogatories, and other special affidavits, 
 when the higher scale is applicable, the taxing officer may, 
 in lieu of the allowances for instructions and preparing or 
 drawing, make such allowance for work, labour, and ex-* 
 penses in or about the preparation of such documents as in 
 his discretion he may think proper. 
 
 (Adapted from the second Schedule to the Chancery Kegulations as 
 to Fees, Hil. T., 1860.) 
 
 2. As to drawing any pleading or other document, the 
 fees allowed shall include any copy made for the use of 
 the solicitor, agent, or client, or for counsel to settle. 
 
 (Copied from the second Schedule to the Chancery Regulations as to 
 Fees, Hil. T., 1860.) 
 
 3. As to instructions to sue or defend, when the higher 
 scale is applicable, if in consequence of the instructions 
 being taken separately from more than three persons (not 
 being co-partners) the taxing officer shall consider the fee 
 above provided inadequate, he may make such further 
 allowance as he shall in his discretion consider reasonable. 
 
 (Compare Chancery Order XL, Rule 12.) 
 
 4. As to affidavits, when there are several deponents to 
 be sworn, or it is necessary for the purpose of an affidavit 
 being sworn to go to a distance, or to employ an agent, 
 such reasonable allowance may be made as the taxing 
 officer in his discretion may think fit. 
 
 5. The allowances for instructions and drawing an affi- 
 davit in answer to interrogatories and other special affida- 
 vits, and attending the deponent to be sworn, include all 
 attendances on the deponents to settle and read over.
 
 654 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 6. As to delivery of pleadings, services, and notices, 
 tlie fees are not to be allowed when the same solicitor is 
 for both parties, unless it be necessary for the purpose of 
 making an affidavit of service. 
 
 (Copied from the second Schedule to the Chancery Regulation as to 
 Fees, Hil. T., 1860.) 
 
 7. As to perusals; the fees are not to apply where the 
 same solicitor is for both parties. 
 
 (Copied from the second Schedule to the Chancery Regulations as t& 
 Fees, Hil, T., 1860.) 
 
 8. As to evidence^ such just and reasonable charges and 
 expenses as appear to have been properly incurred in pro- 
 curing evidence, and the attendance of witnesses, are to be 
 allowed. 
 
 (Copied from Chancery Order XL., Rule 32.) 
 
 9. As to agency correspondence, in country agency 
 causes and matters, if it be shown to the satisfaction of 
 the taxing officer that such correspondence has been 
 special and extensive, he is to be at liberty to make such 
 special allowance in respect thereof as in his discretion he 
 may think proper. 
 
 (Taken from the second Schedule to the Chancery Regulations of 
 Hil. T., 1860, as to Fees. 
 
 10. As to attendances at the Judges' Chambers, where, 
 from the length of the attendance, or from the difficulty 
 of the case, the judge or master shall think the highest of 
 the above fees an insufficient remuneration for the services 
 performed, or where the preparation of the case or matter 
 to lay it before the judge or master in chambers, or on a 
 summons, shall have required skill and labour for which 
 no fee has been allowed, the judge or master may allow 
 such fee in lieu of the fee of 1. Is. above provided, not 
 exceeding 2. 2s., or where the higher scale is applicable, 
 3. 3s., or in proceedings to wind up a company, 5. 5s., as 
 in his discretion he may think fit ; and where the prepara-
 
 ADDITIONAL RULES OF COURT. 655 
 
 tion of the case or matter to lay it before a judge at 
 chambers on a summons shall have required and received 
 from the solicitor such extraordinary skill and labour as 
 materially to conduce to the satisfactory and speedy dis- 
 pdsal of the business, and therefore shall appear to the 
 judge to deserve higher remuneration than the ordinary 
 fees, the judge may allow to the solicitor, by a memo- 
 randum in writing expressly made for that purpose and 
 signed by the judge, specif3dng distinctly the grounds of 
 such allowance, such fee, not exceeding ten guineas, as in 
 his discretion, he may think fit, instead of the above fees 
 of 2; 2s., 3. 3s., and 5. 5s. 
 
 (Copied verbatim from the second Schedule to the Chancery Regula- 
 tions as to Fees of Hil. T., 1860 ; 2. 2s. and 3. 3s. being substituted 
 for 1. Is. and 2. 2s., and 5. 5s. added as to winding up.) 
 
 11. As to attendances at the Judges' Chambers, where 
 by reason of the non-attendance of any party (and it is 
 not considered expedient to proceed ex parte), or where 
 by reason of the neglect of any party in not being pre- 
 pared with any proper evidence, account, or other pro- 
 ceeding, the attendance is adjourned without any useful 
 progress being made, the Judge may order such an amount 
 of costs (if any) as he shall think reasonable to be paid to 
 the party attending by the party so absent or neglectful, 
 or by his solicitor personally ; and the party so absent or 
 neglectful is not to be allowed any fee as against any other 
 party, or any estate or fund in which any other party is 
 interested. 
 
 (Copied partly from Chancery Order XL., Rule 31.) 
 
 12. A folio is to comprise seventy-two words, every 
 figure comprised in a column being counted as one word. 
 
 (This is copied from the Chancery Regulations as to Fees, IV., 4. 
 
 13. Such costs of procuring the advice of counsel on 
 the pleadings, evidence, and proceedings in any cause or 
 matter as the taxing officer shall in his discretion think
 
 656 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 just and reasonable, and of procuring counsel to settle such 
 pleadings and special affidavits as the taxing officer shall 
 in his discretion think proper to be settled by counsel, are 
 to be allowed ; but as to affidavits, a separate fee is not to 
 be allowed for each affidavit, but one fee for all the affida- 
 vits proper to be so settled, which are or ought to be filed 
 at the same time. 
 
 (Taken partly from the Directions to the Masters, Rule 4, and Chancery 
 Order XL., Rule 17.) 
 
 14. As to counsel attending at Judges' Chambers, no 
 costs thereof shall in any case be allowed, unless the Judge 
 certifies it to be a proper case for counsel to attend. 
 
 (This is copied verbatim from the Directions to the Masters, Rule 6, 
 and Chancery Order XL, Rule 29.) 
 
 15. As to the inspection of documents under Order 
 XXXI., Rule 14, no allowance is to be made for any 
 notice or inspection, unless it is shown to the satisfaction 
 of the taxing officer that there were good and sufficient 
 reasons for giving such notice and making such inspection. 
 
 (See pp. 412-14, and 660.) 
 
 16. As to taking copies of documents in possession of 
 another party, or extracts therefrom, under Rules of Court 
 or any special order, the party entitled to take the copy or 
 extract is to pay the solicitor of the party producing the 
 document for such copy or extract as he may, by writing, 
 require, at the rate of 4d. per folio ; and if the solicitor of 
 the party producing the document refuses or neglects to 
 supply the same, the solicitor requiring the copy or extract 
 is to be at liberty to make it, and the solicitor for the 
 party producing is not to be entitled to any fee in respect 
 thereof. 
 
 (4d was the amount charged by the Record and Writs' clerks for copies. 
 R'Hgul.as to Fees, Sch. 4. No fee was payable for taking copies. Daniel's 
 Ch. Pract., 
 
 17. Where a petition in any cause or matter assigned 
 to the Chancery division is served, and notice is given to 
 the party served that in case of his appearance in Court
 
 ADDITIONAL RULES OF COURT. 65? 
 
 his costs will be objected to, and accompanied by a tender 
 of costs for perusing the same, the amount to be tendered 
 shall be 2. 2s. The party making such payment shall be 
 allowed the same in his costs, provided such service was 
 proper, but not otherwise ; but this order is without pre- 
 judice to the rights of either party to costs, or to object to 
 costs where no such tender is made, or where the Court or 
 Judge shall consider the party entitled, notwithstanding 
 such notice or tender, to appear in Court. In any other 
 case for which a solicitor of .a party served necessarily or 
 properly peruses any such petition without appearing 
 thereon, he is to be allowed a fee not exceeding 3. 3s. 
 
 (See Roberts v. Sail, 24 L. J. (Oh.) 471 ; Wood v. Boucher, 19 "W.R., 
 234 ; Re Duggan, L.R., 8 Eq., 697 ; 40*. is the amount usually tendered, 
 Daniel's Ch. Pract., p. 1460, n., q.) 
 
 18. The Court or Judge may, at the hearing of any 
 cause or matter, or upon any application or procedure in 
 any cause or matter in Court or at Chambers, and whether 
 the same is objected to or not, direct the costs of any plead- 
 ing, affidavit, evidence, notice to cross-examine witnesses, 
 account, statement, or other proceeding, or any part there- 
 of, which is improper, unnecessary, or contains unnecessary 
 matter, or is of unnecessary length, to be disallowed, or 
 may direct the taxing officer to look into the same and to 
 disallow the costs thereof, or of such part thereof as he 
 shall find to be improper, unnecessary, or to contain un- 
 necessary matter, or to be of unnecessary length ; and in 
 such case the party whose costs are so disallowed shall pay 
 the costs occasioned to the other parties by such unneces- 
 sary proceeding, matter, or length ; and in any case where 
 such question shall not have been raised before and dealt 
 with by the Court or Judge, the taxing officer may look 
 into the same (and, as to evidence, although the same may 
 be entered as read in any decree or order) for the purpose 
 43
 
 658 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 aforesaid, and thereupon the same consequences shall 
 ensue as if he had been specially directed to do so. 
 
 (This is an improved version of Chancery Order XL., Rules 9 and 10, 
 the last sentence being new ; see Be farington, 33 Beav., 347). 
 
 19. In any case in which, under the preceding rule No. 
 18, or any other rule of Court, or by the order or direction 
 of a Court or Judge, or otherwise, a party entitled to receive 
 costs is liable to pay costs to any other party, the taxing 
 officer may tax the costs such party is so liable to pay, and 
 may adjust the same by way of deduction or set off, or may, 
 if he shall think fit, delay the allowance of the costs such 
 party is entitled to receive until he has paid or tendered 
 the costs he is liable to pay ; or such officer may allow or 
 certify the costs to be paid, and the same may be recovered 
 by the party entitled thereto in the same manners as costs 
 ordered to be paid may be recovered. 
 
 (Setting off costs against costs in same suit, is in accordance with the 
 former practice. Daniel's Ch. Pract., p. 1269). 
 
 20. Where in the Chancery division any question as to 
 any costs is under the preceding rule 18 dealt with at 
 Chambers, the Chief Clerk is to make a note thereof, and 
 state the same on his allowance of the fees for attendances 
 at Chambers, or otherwise as maybe convenient for the in- 
 formation of the taxing officer. 
 
 (This is copied from Chancery Order XL., Rule 10.) 
 
 21. Where any party appears upon any application or 
 proceeding in Court or at Chambers, in which he is not 
 interested, or upon which, according to the practice of the 
 Court, he ought not to attend, he is not to be allowed any 
 costs of such application unless the Court or Judge shall 
 expressly direct such costs to be allowed. 
 
 (Compare Chancery Order XL., Rule 28 ; and Rule 24, infra.} 
 
 22. As to applications to extend the time for taking any
 
 ADDITIONAL RULES OF COURT. 659 
 
 proceeding limited by Rules of Court (subject to any 
 special order as to the costs of and occasioned by any such 
 application), the costs of one application are, without 
 special order, to be allowed as costs in the cause or matter, 
 but (unless specially ordered) no costs are to be allowed of 
 any further application to the party making the same as 
 against any other party, or any estate or fund in which any 
 other party is interested. 
 
 (See, on this, Order LVII., Rule 6, of the Schedule to the Act, and 
 Chancery Order XXXVII., Rules 17 and 18.) 
 
 23. The taxing officers of the Supreme Court, or of 
 any division thereof, shall, for the purpose of any pro- 
 ceeding before them, have power and authority to ad- 
 minister oaths, and shall, in relation to the taxation of costs, 
 perform all such duties as have heretofore been performed by 
 any of the masters, taxing masters, registrars, or other 
 officers of any of the Courts whose jurisdiction is by the 
 Act transferred to the High Court of Justice or Court of 
 Appeal, and shall, in respect thereof, have such powers and 
 authorities as previous to the commencement of the Act 
 were vested in any of such officers, including examining 
 witnesses, directing production of books, papers, and docu- 
 ments, making separate certificates or allocators, requiring 
 any party to be represented by a separate solicitor, and to 
 direct and adopt all such other proceedings as could be 
 directed and adopted by any such officer on references for 
 the taxation of costs, and taking accounts of what is due 
 in respect of such costs, and such other accounts connected 
 therewith as may be directed by the Court or a Judge. 
 
 (This is partly copied from the Chancery Order XV., Rule 1.) 
 
 24. The taxing officer shall have authority to arrange 
 and direct what parties are to attend before him on the 
 taxation of costs to be borne by a fund or estate, and ta
 
 660 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 disallow the costs of any party whose attendance such 
 officer shall in his discretion consider unnecessary in con- 
 sequence of the interest of such party in such fund or 
 estate being small or remote, or sufficiently protected by 
 other parties interested. 
 
 (Compare Eule 21, supra, and see Stahlschmidt v. Lett, 9"W. E. , 830, as 
 to the exercise of this discretion.) 
 
 25. "When any party entitled to costs refuses or neglects 
 to bring in his costs for taxation, or to procure the same 
 to be taxed, and thereby prejudices any other party, the 
 taxing officer shall be at liberty to certify the costs of the 
 other parties, and certify such refusal or neglect, or may 
 allow such party refusing or neglecting a nominal or other 
 sum for such costs, so as to prevent any other party being 
 prejudiced by such refusal or neglect. 
 
 26. As to costs to be paid or borne by another party, no 
 costs are to be allowed which do not appear to the taxing 
 officer to have been necessary or proper for the attainment 
 of justice or defending the rights of the party, or which 
 appear to the taxing officer to have been incurred 
 through overcaution, negligence, or mistake, or merely at 
 the desire of the party. 
 
 (This is copied verbatim from Chancery Order XIV., Eule 32.) 
 
 27. As to any work and labour properly performed and 
 not herein provided for, and in respect of which fees have 
 heretofore been allowed, the same or similar fees are to be 
 allowed for such work and labour as have heretofore been 
 allowed. 
 
 (This is copied from the Eegulations of Hil. T., 1860, as to Fees, second 
 Schedule.) 
 
 28. The RULES, ORDERS, and PRACTICE OF ANY COURT 
 
 WHOSE JURISDICTION IS TRANSFERRED to the High Court of
 
 ADDITIONAL RULES OF COURT. 661 
 
 Justice or Court of Appeal, relating to costs, and the allow- 
 ance of the fees of solicitors and attorneys, and the taxation 
 of costs, existing prior to the commencement of the Act, 
 shall, in so far as they are NOT INCONSISTENT with the Act, 
 and the Rules of Court in pursuance thereof, REMAIN IN 
 FORCE and be applicable to costs of the same or analogous 
 proceedings, and to the allowance of the fees of solicitors of 
 the Supreme Court and the taxation of costs in the High 
 Court of Justice and Court of Appeal. 
 (This is a very important saving clause.) 
 
 29. As to all fees or allowances which are discretionary, 
 the same are, unless otherwise provided, to be allowed at 
 the discretion of the taxing officer, who, in the exercise of 
 such discretion, is to take into consideration the other fees 
 and allowances to the solicitor and counsel, if any, in respect 
 of the work to which any such allowance applies, the nature 
 and importance of the cause or matter, the amount involved, 
 the interest of the parties, the fund or persons to bear the 
 costs, the general conduct and costs of the proceedings, and 
 all other circumstances. 
 
 (Fees to Counsel are generally left to the taxing master's discretion ; 
 6 Beav., 454 ; 13 W.K., 1056 ; 1 K. & J., 220. See, also, as to solicitor's 
 fees, Chancery Order XL., Rule 37.) 
 
 30. Any party who may be dissatisfied with the allow- 
 ance or disallowance by the taxing officer, in any bill of 
 costs taxed by him, of the whole or any part of any item 
 or items, may, at any time before the certificate or allocatur 
 is signed, deliver to the other party interested therein, and 
 carry in before the taxing officer, an objection in writing 
 to such allowance or disallowance, specifying therein by a 
 list, in a short and concise form, the item or items, or parts 
 or part thereof objected to, and may thereupon apply to 
 the taxing officer to review the taxation in respect of the 
 same.
 
 662 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 (This is copied verbatim from the Chancery Order XL., Rule 33, "or 
 " allocatur " being added.) 
 
 31. Upon such application the taxing officer shall re- 
 consider and review his taxation upon such objections, and 
 he may, if he shall think fit, receive further evidence in 
 respect thereof, and, if so required by either party, he shall 
 state either in his certificate of taxation or allocatur, or by 
 reference to such objection, the grounds and reasons of his 
 decision thereon, and any special facts or circumstances 
 relating thereto. 
 
 (This is copied verbatim from the Chancery Order XL., Rule 34.) 
 
 32. Any party who may be dissatisfied with the certificate 
 or allocatur of the taxing officer, as to any item or part of 
 an item which may have been objected to as aforesaid, may 
 apply to a judge at chambers for an order to review the 
 taxation as to the same item or part of an item, and the 
 judge may thereupon make such order as to the judge may 
 seem just ; but the certificate or allocatur of the taxing 
 officer shall be final and conclusive as to all matters which 
 shall not have been objected to in manner aforesaid. 
 
 (This is copied from the Chancery Order XL., Rule 35, " or allocatur " 
 being added, and the application need not have been to the Judge who 
 made the order for taxation.) 
 
 33. Such application shall be heard and determined by 
 the judge upon the evidence which shall have been brought 
 in before the taxing officer, and no further evidence shall 
 be received upon the hearing thereof, unless the judge shall 
 otherwise direct. 
 
 (Copied verbatim from the Chancery Order XL., Rule 36.) 
 
 34. When a writ of summons for the commencement of 
 an action shall be issued from a district, and when an action 
 proceeds in a District Registry, all fees and allowances, and
 
 ADDITIONAL KULES OF COURT. 663 
 
 rules and directions relating to costs, which, would be 
 applicable to such proceeding if the writ of summons were 
 issued in London, and if the action proceeded in London, 
 shall apply to such writ of summons issued from and other 
 proceedings in the District Registry. 
 
 Cairns, O. John Mellor. 
 
 A. E. Cockburn. RoU. Lush. 
 
 G. JesseL Wm. Baliol Brett. 
 
 Coleridge A. Cleasby. 
 
 Fitzroy Kelly. W. R. Grove. 
 
 W. M. James. J. R. Quain. 
 
 George Mellish. James Hannen 
 
 Richd. Malins. C. E. Pollock. 
 
 James Bacon. W. V. Field. 
 
 Charles Hall. J. W. Huddleston 
 
 G. Bramivell. Nathaniel Lindley. 
 Colin Blackburn.
 
 664 FORMATION OF DISTRICT REGISTRIES. 
 
 FOKMATION OF DISTEICT EEGISTEIES. 
 
 SECOND ORDER IN COUNCIL, 
 
 12TH AUGUST, 1875. 
 
 At the Court at Osborne House, Isle of Wight, the 
 12th day of August, 1875. 
 
 PEESENT, 
 The QUEEN'S Most Excellent Majesty in Council. 
 
 WHEREAS by "The Supreme Court of Judicature 
 Act, 1873," it is enacted that it shall be lawful for 
 Her. Majesty, by Order in Council, from time to time to 
 direct that there shall be District Registrars in such places 
 as shall be in such Order mentioned for districts to be there- 
 by denned, from which writs of summons for the commence- 
 ment of actions in the High Court of Justice may be issued, 
 and in which such proceedings may be taken and recorded, 
 as are hereinafter mentioned, and Her Majesty may thereby 
 appoint that any Registrar of any County Court, or any 
 Registrar or Prothonotary or District Prothonotary of any 
 local Court whose jurisdiction is hereby transferred to the 
 said High Court of Justice, or from which an appeal is 
 hereby given to the said Court of Appeal, or any person 
 who, having been a District Registrar of the Court of 
 Probate, or of the Admiralty Court, shall under this Act 
 become and be a District Registrar of the said High Court 
 of Justice, or who shall hereafter be appointed such District 
 Registrar, shall and may be a District Registrar of the 
 said High Court for the purpose of issuing such writs as 
 aforesaid, and having such proceedings taken before him 
 as are hereinafter mentioned : 
 
 And whereas by " The Supreme Court of Judicature
 
 FORMATION OF DISTRICT REGISTRIES. 665 
 
 Act, 1875," it is provided that where any such Order has 
 been made, two persons may, if required, be appointed to 
 perform the duties of District Registrar in any district 
 named in the Order, and such persons shall be deemed to be 
 joint District Registrars, and shall perform the said duties 
 in such manner as may from time to time be directed by the 
 said Order, or any Order in Council amending the same : 
 
 And whereas it has seemed fit to Her Majesty, by and 
 with the advice of Her Privy Council, that there should be 
 District Registrars in certain places in England : Now, 
 therefore, Her Majesty, by and with the advice aforesaid, 
 is pleased to order, and it is hereby ordered, as follows : 
 
 That there shall be District Registrars in the places of 
 LIVERPOOL, MANCHESTER, and PRESTON, and the DISTRICT 
 REGISTRAR AT LIVERPOOL OF THE HIGH COURT OF 
 ADMIRALTY and the DISTRICT PROTHONOTARY at Liverpool 
 of the Court of Common Pleas of Lancaster, shall be and 
 are hereby appointed the District Registrars in Liverpool ;* 
 and the DISTRICT PROTHONOTARY at MANCHESTER of the 
 said Court of Common Pleas shall be and is hereby ap- 
 pointed the District Registrar in Manchester; and the 
 DISTRICT PROTHONOTARY at PRESTON of the said Court of 
 Common Pleas shall be and is hereby appointed the Distrct 
 Registrar at Preston ; and that the district for each such 
 place shall be the district now assigned to each such Dis- 
 trict Prothonotary, under the provisions and authority of 
 "The Common Pleas at Lancaster Amendment Act, 1869." 
 
 That there shall be a District Registrar in DURHAM, 
 and that the DISTRICT PROTHONOTARY of the Court of 
 Pleas at Durham shall be and is hereby appointed the 
 District Registrar in Durham ; and that the district shall 
 be the district, for the time being, of the County Court 
 holden at Durham. 
 * Under s. 13 of the Supremo Court of Judicature Act, 1875, see p. 22'J- 
 
 44
 
 666 
 
 FORMATION OF DISTRICT REGISTRIES. 
 
 That, in the places mentioned in the Schedule annexed, 
 there shall be District Registrars, and that the REGISTRAR 
 OF THE COUNTY COURT held in any such place shall be and is 
 hereby appointed the District Registrar in such place, and 
 that the district for each such place shall be the district, for 
 the time being, of the County Court holden at such place. 
 
 SCHEDULE. 
 List of District Registries and Registrars : 
 
 * BANGOR (Jones H. Lloyd) 
 BARNSLEY (Bury, R.) 
 
 * BARXSTAPLE (Bencroft, L. T.) 
 BEDFORD (Pearce, J.) 
 BIRKENHEAD (Wason, J.) 
 BIRMINGHAM (Messrs. Guest and 
 
 Cole) 
 
 * BOSTON (Staniland, R. W.) 
 BRADFORD (Robinson, G.) 
 
 * BRIDGEWATER (Lovibond, H.) 
 
 * BRIGHTON (Evershed, E.) 
 
 * BRISTOL (Messrs. Harley and 
 
 Gibbs) 
 
 BURY ST. EDMUNDS (Collins, T.) 
 CAMBRIDGE (Eaden, J.) 
 
 * CARDIFF (Langley, R. F.) 
 CARLISLE (Halton, J. J.) 
 
 * CARMARTHEN (Lloyd, W.) 
 CHELTENHAM (Gale, C. F.) 
 CHESTER (Williamson, S.) 
 
 * COLCHESTER (Barnes, J. S.) 
 DERBY (Weller, G. H.) 
 DEWSBURY (C. A. Tennant) 
 
 * DOVER (Fielding, G.) 
 
 * DORCHESTER (Symonds, G.) 
 DUDLEY (Walker, T.) 
 
 * EAST STONEHOUSE (Edmonds, 
 
 R. G.) 
 
 * EXETER (Daw, R. R. M.) 
 
 * GLOUCESTER (Wilton, F.) 
 
 * GREAT 'GRIMSBY (Daubeny, W. 
 
 H.) " 
 
 * GREAT YARMOUTH (Messrs. Ken- 
 
 dall and Woolledge) 
 HALIFAX (Rankin, M. H.) 
 HANLEY (Challinor, C. E.) 
 
 * HARTLEFOOL (Strover, J. ]>.) 
 HEREFORD (Reynolds, J. J.) 
 HUDDERSFIELD (Jones, F. R., jun) 
 
 * IPSWICH (Grimsey, B. P.) 
 
 * KlNGSTON-ON-HuLL (MeSSTS. 
 
 Pbillips and Rollitt) 
 
 * KING'S LYNN (Partridge, F. R.) 
 LEEDS (Marshall, T.) 
 LEICESTER (Ingram, T.) 
 LINCOLN (Uppleby, F.) 
 
 * LOWESTOFT (Chater, W.) 
 MAIDSTONE (Scudamure, F.) 
 
 * NEWCASTLE - UPON - TYNE (Mor- 
 
 timer, W. B.) 
 
 * NEWPORT, MONMOUTH (Roberts, 
 
 W.) 
 NEWPORT, ISLE OF WIGHT 
 
 (Blake, F.) 
 
 NEWTOWN (Talbot, J. A.) 
 NORTHAMPTON (Dennis, W.) 
 NORWICH (Cooke, G. F.) 
 NOTTINGHAM (Patchitt, E.) 
 OXFORD (Bishop, C.) 
 PEMBROKE DOCKS (Owen, G. H.) 
 PETERBOROUGH (Caches, W. D.) 
 
 * POOLE (Dickinson, H. W.) 
 
 * PORTSMOUTH (Howard, J.) 
 
 * RAMSGATE (Snowden, T. II. G.) 
 
 * ROCHESTER (Acworth, G. B.) 
 SHEFFIELD (Messrs. Wake and 
 
 Rogers,) 
 SHREWSBURY (Peele, C.) 
 
 * SOUTHAMPTON (Walker, II. J.) 
 
 * STOCKTON-ON-TEES (Crosby, T.) 
 
 * SUNDERLAND (Ellis, R. K. A.) 
 
 * SWANSEA (Jones, J.) 
 
 * TRURO (Chilcott, J. G.) 
 
 * TOTNES (Bryett, T.) 
 WAKBFIELD (Mason, H.) 
 WALSALL (Clarke, F. F.) 
 
 * WHITEHAVEN (Were, A. B.) 
 WOLYERHAMPTON (Sauiiders, F.) 
 WORCESTER (Crisp, H.) 
 
 YORK (Perkins, R.) 
 
 * The County Courts which have Admiralty jurisdiction are all included 
 in the above list. The names of the towns in which they are situate are 
 <listinguished by an asterisk.
 
 FORMATION OF DISTRICT REGISTRIES. 667 
 
 See as to the District Prothonotaries, a. 78 of the Principal Act, and 
 s. 27 of the Amending Act (pp. 146 and 254). 
 
 The following is a list of the new District Registrars in Lancashire : 
 -r ( Lowndes, F. D. (D. E. of Court of Admiralty) 
 
 DOL 1 Paget, T. E. (Prothonotary) 
 MANCHESTER, Worthington, E. District Prothonotary} 
 PHESTON, Shuttleworth, T. M. (District Prothonotary) 
 
 The office of District Prothonotary of Durham is vacant. 
 
 The writer has to thank Mr. Henry Nicol, superintendent of the 
 County Courts Department at the Treasury, for kindly settling the ahove 
 list of District Registrars. He has Mr. Nicol's authority for stating that 
 the proper style of addressing a District Registrar is by his official title, 
 thus : 
 
 " The District Registrar of the High Court of Justice [Bangor]," or 
 as the case may be.
 
 INDEX, 
 
 Abatement, no, of action, by marriage, death, or bankruptcy, if cause of 
 
 action survive, 177, 494. See "Plea," "Bankruptcy," "Death," 
 
 " Marriage." 
 
 Acceptance of service by defendant, 303. See " Notice." 
 Accident, a nonsuit may be set aside in case of, 465. 
 Account, application for, 335. 
 
 Account, order for, with directions usual in Chancery, 335. 
 Account of receipts and expenditure of High Court and Court of Appeal, 
 
 to be laid annually before Parliament, 258. 
 
 Account, indorsement of claim for ordinary, 288. See " Summons." 
 Account stated, form of statement of claim and of defence and reply in 
 
 action for, 568, 569. 
 Accounts and Inquiries may be directed at any stage in a cause or 
 
 matter, 418. 
 
 Accounts, talcing of, assigned to Chancery Division, 84. 
 Acknowledgments of Married "Women, not to be taken by Master or by 
 
 Registrar of Probate, Divorce and Admiralty Division, 511. 
 Act, Bills of Exchange, to apply to action commenced within six months 
 
 after the bill shall become payable, 280. 
 Act, Bills of Exchange, forms in Schedule to, 282, 283. 
 Act, Companies, time for appealing from order made under, 526. 
 Act, 1867, County Court, ss. 5, 7, 8, 10, 130. 
 Act, Court of Justice (Salaries and Funds), 1865, 126. 
 Act for charging stock and shares, 488, 489. 
 Act, Distringas, 489, 490. 
 Act, 1808, Parliamentary Elections, 91. 
 Act, Trustee Relief, person liable in respect of a chose iii action may in 
 
 case of dispute pay same into Court under, 41. 
 Action, commenced in the name of a wrong Plaintiff, 337. 
 Action, form of, 272. 
 Action, hitherto commenced by writ in the Court of Common Pleas at 
 
 Lancaster, in the Court of Pleas at Durham, or in the Superior Courts 
 
 of Common Law at Westminster, to be instituted by an " action," 272. 
 Action, how to be tried, 432. 
 Action, interpretation of, 169. 
 
 Action, may bo assigned to any Division of the High Court, 292. 
 Action to be commenced by Writ of Summons, distinguished by a date, a 
 
 letter, and a number, 277, 295, 296. 
 Action transferred from District Registry to High Court, to continue as 
 
 if originally commenced in the High Court, 128.
 
 670 INDEX. 
 
 Action transferred to Chancery or Probate Division, to be assigned to one 
 
 of the Judges, 500. 
 Action may be directed to stand over for further consideration while 
 
 issues tried, or accounts and inquiries taken, 401. 
 Actions for trial, in London and Middlesex, to be allotted without 
 
 reference to the Division to which they may be attached, 440. 
 See " Chancery Division," "Consolidation," "Parties," "Discontinuance," 
 "Transfer," "District Registry," "Recovery of Land," "Hesne 
 Profits." 
 
 Acts, Interpleader, 273. 
 Acts of Parliament relating to former Courts, to be read as applying to 
 
 Courts under this Act, 140. 
 
 Additional Judges of the Court of Appeal, may be required to attend 
 
 from among the Puisne Judges of the several Divisions, except 
 
 Chancery. Not to be required during the time of the spring or 
 
 summer circuits, 199. 
 
 Additional Judges of the High Court, any Judge of the Court of Appeal 
 
 may act as, in absence of Judge, 114. 
 Additional Rules may be made, 238. 
 Additional Rules made August 12th, 1875, 635. 
 Address of Plaintiff suing in person, or by Solicitor, to be indorsed on 
 
 writ, 289, 290,291. 
 
 Address of principal solicitor and agent to be indorsed on writ, 289, 291. 
 Address of either House of Parliament. See " Order in Council." 
 Address for service of solicitor for plaintiff, or of plaintiff suing in person, 
 
 to be indorsed on writ, 289. 
 Address for service of solicitor for defendant, or of defendant appearing 
 
 in person, to be stated in memorandum of appearance, 317. 
 Address for service, to be within three miles of Temple Bar, 289. 
 Address for service, when appearance entered in District Registry, to be 
 
 within district. 317. 
 
 Adjournment of hearing of motion, where all parties not served, 509. 
 Adjournment of trial by Judge, 442. 
 Administration action, forms of statements of claim, of defence, and of 
 
 reply in, 569, 576. See " Creditor." 
 
 Administration of assets, bankruptcy rules to apply to, 39, 43, 50. 
 Administration of estates of deceased persons assigned to the Chancery 
 
 Division, 83. 
 
 Administrators, whether plaintiff or defendant, may represent estate with- 
 out beneficiaries being joined, 339. Sec " Executors." 
 Admiralty action, affidavit in an, to state name and description of 
 party on whose behalf the action is instituted, name and nature of 
 the property to be arrested, and that the claim has not been satisfied, 
 297, 298. 
 Admiralty action for distribution of salvage, affidavit in an, to state amount 
 
 of salvage money, &c., and name of party holding same, 297. 
 Admiralty action, forms of indorsements in an, 554, 555. 
 Admiralty action of bottomry, bond and notarial translation to be 
 
 produced, but the Judge may waive production of bond, 297, 298. 
 Admiralty action of wages, affidavit in an, to state national character of 
 
 the vessel proceeded against, 297. 
 
 Admiralty action of wages against a foreign vessel, affidavit in an, to state 
 that notice has been given to the Consul of the foreign State, and copy 
 of notice to Consul to be annexed, 297.
 
 INDEX. 671 
 
 Admiralty action of wages against a foreign vessel, Judge may waive 
 
 service of notice in an, 298. 
 
 Admiralty action to be preceded by filing of affidavit, 297. 
 Admiralty action, writ of summons in, may be issued without sufficient 
 
 allidavit by leave of Judge, 298. 
 
 Admiralty action in rent, in, writ to be filed within 6 days from service, 308. 
 Admiralty action in rem, in, plaintiff, within 12 days from defendant's 
 
 appearance, to deliver statement. 376. 
 Admiralty action in rem, on defaultof appearance in, plaintiff may, 12 days 
 
 from service, advertise notice of sale, and, after advertisements, may file 
 
 affidavit of them, and notice of motion to sell, and Judge may then 
 
 order sale, 331. 
 Admiralty action in rem, in default of appearance in, where two or more 
 
 actions for same property, notice of sale by plaintiff in first 
 
 sufficient, but plaintiff in second, may, aftor 18 days, advertise notice 
 
 of sale, 331. 
 Admiralty action in rem, in default of appearance in, plaintiff in each 
 
 action to file his proofs within 6 days after payment of proceeds into 
 
 Registry, and place action on list for hearing, 331. 
 Admiralty action in rem, for possession, in default of appearance in, 
 
 plaintiff to advertise notice of proceeding, after 6 days from filing of 
 
 writ, and if appearance not entered 6 days after advertisements, 
 
 plaintiff to file affidavit of advertisements and to place action on list 
 
 for hearing, and Judge may decree possession, on hearing coming 
 
 on, 331. 
 
 Admiralty, all matters pending in Court of, within the exclusive cogniz- 
 ance of the Court of, assigned to the Probate, Divorce, and Admiralty 
 
 Division, 86. 
 Admiralty, causes and matters which would have come under the exclusive 
 
 cognizance of the Court of, to be assigned to the present Judge of the 
 
 Admiralty Court while he continues Judge of the High Court, 101. 
 Admiralty, District Registrar of, may be appointed District Registrar of 
 
 the High Court, 123. 
 
 Admiralty, District Registrar of, at Liverpool so appointed, 665. 
 Admiralty, Court of, united to Supreme Court, 3. 
 Admiralty, Judge of the Court of, to be one of the first Judges of the 
 
 High Court, 6. 
 Admiralty jurisdiction may be conferred by Order in Council on inferior 
 
 Court, 159, 160. 
 Admiralty, jurisdiction of Court of, vested in the High Court of Justice, 
 
 18. 
 Admiralty, non-exclusive jurisdiction of the Court' of, matters within, 
 
 may be assigned to any Division, 292, 293. 
 
 Admiralty, provisions as to the existing Judge of the Court of, 214. 
 Admiralty, rules of the Court of, unless varied by these Acts, to remain 
 
 in force, 235. 
 Admiralty action, second action against property under arrest in, 298. 
 
 Nee " Statement of Claim," "Caveat," " Caveat Release-book " "Suits." 
 Admission of documents, any party may give notice of, 417. 
 Admission of documents, either party may call upon the other for, 417. 
 Admission of documents, person refusing to make, to pay the costs 
 
 of proving them, 417. 
 
 Admission of opponent's case, notice of, 417. 
 Affidavit, Court may order particular facts to be proved by affidavit, 448.
 
 672 INDEX. 
 
 Affidavit to be made in Probate actions, verifying indorsement on 
 writ, 296, 297. 
 
 Affidavit in support of application for leave to serve out of jurisdiction, 
 to state particulars and grounds of application, 314. 
 
 Affidavit may be sworn in print or in manuscript, 517. 
 
 Affidavit may, by order, be read at the hearing, 448. 
 
 Affidavit must be filed by person intervening in a Probate action, show- 
 ing that he is interested in the estate, 320. 
 
 Affidavit must be filed by person intervening in an Admiralty action in 
 rem showing that he is interested in the property, 321. 
 
 Affidavit not to be used, except by leave, unless deponent, having notice, 
 is not produced for cross-examination, 451, 452. 
 
 Affidavit not to contain extracts from documents, 449. 
 
 Affidavit of defendant on showing cause against entry of final judgment , 
 333. 
 
 Affidavit of particulars of claim to be filed by plaintiff, when defendant 
 does not appear, 328. 
 
 Affidavit of solicitor or his clerk, of signature of admissions, to be evidence 
 of such admissions, 418. 
 
 Affidavit on interlocutory motions, may state as to witness's belief, and the 
 grounds thereof, 449. 
 
 Affidavit to be made on application for order to inspect documents, 409. 
 
 Affidavit to be confined to facts within tho witness's knowledge, except 
 on interlocutory motions, 449. 
 
 Affidavit, insufficiency of, in answer to be determined on motion or 
 summons, 409. 
 
 Affidavit as to documents, form of, 411. 
 
 Affidavit of scripts in Probate actions, where defendant has appeared, the 
 plaintiff shall not be compelled to deliver his statement of claim until 
 eight days after the defendant has filed his, 375, 376. 
 
 Affidavit of scripts, form of, 567. 
 
 Affidavit evidence, 450. 
 
 Affidavit of service, to be filed by plaintiff before proceeding in default 
 of appearance, 324, 325. 
 
 Affidavit of notice in lieu of service, to be filed by plaintiff before proceed- 
 ing in default of appearance, 324, 325. 
 
 Affidavit of service to state day on which date of service indorsed on 
 writ, 310. 
 
 Affidavits in reply, list of, to be delivered by plaintiff within fourteen 
 days after agreement so to take evidence, and to be delivered by de- 
 fendant within fourteen days after delivery of plaintiff's list, 450, 451. 
 
 Affidavits in reply to be delivered by plaintiff to defendant within seven 
 days after delivery of defendant's list, 451. See "Summons" 
 " Admiralty Action," "Cross-examination," "Evidence." 
 
 Agent, forms of statement of claim, defence and reply in action by, 576, 
 577. 
 
 Agent to indorse name of principal solicitor on writ, 289. 
 
 Allegation of fact denied or not admitted, Court may make order as to 
 
 extra costs, 378. 
 
 Allegation of fact in a pleading, not being a petition or summons, if not 
 denied, or stated to be not admitted, to be taken as admitted, 364. 
 See "Infant." 
 
 Amend, leave to, former pleading, where opposite party has amended, in 
 cases not otherwise provided for in the Rules, 389.
 
 INDEX. 673 
 
 Amend, order for leave to, to become void at the expiration of time 
 
 limited, or after fourteen days, if amendment not made, 390. 
 Amendment of notice of appeal, 622. 
 Amendment of statement of claim by introducing what might have been 
 
 alleged by way of new assignment, 363. 
 Amendment, subject to terms, 388. 
 Amendment of pleadings, mode of effecting, 390. 
 Amendment of pleadings may be directed when person served with notice 
 
 of claim to contribution has leave to defend, 349. 
 Amendment of pleadings may be disallowed on application within eight 
 
 days, 388. 
 Amendment of pleadings not to take place while demurrer pending, 
 
 except by order, 394. See " Carter Claim," " Pleading." 
 Amended statement of claim may be served with amended writ within 
 
 four days after appearance to amended writ, 346. 
 Answer, further, to interrogatories may be required, if answer insufficient, 
 
 410. 
 
 Answer to interrogatories, form of, 409, 561, 562. 
 Answer to interrogatories of the opposite party may be used at the trial, 
 
 but the Judge may direct all to be put in, 416. 
 Answer to interrogatories by affidavit, 408. 
 
 Answer to interrogatories, viva voce, may be directed by the Judge, 410. 
 Appeal, Court of, may direct notice to be served on all parties, though 
 
 not affected, and on persons not parties, 522. 
 Appeal from Chambers to Court in Q. B., C. P., or Exch. Divisions to be 
 
 by motion, 513. 
 
 Appeal from District Registrars not to be to Master or Registrar of Pro- 
 bate Division in Chambers, 511. 
 Appeal from final orders, decrees or judgments, to be heard before not 
 
 less than three Judges, 225. 
 
 Appeal from interlocutory Order to be heard before two Judges, 225. 
 Appeal from London Court of Bankruptcy to lie to the Court of Appeal, 
 
 218. 
 
 Appeal from refusal of ex-parte application, 526. 
 
 Appeal in criminal matters not allowed, except for error in law, not re- 
 served, 108. 
 Appeal may be brought to the House of Lords and Judicial Committee, 
 
 as heretofore, until sees. 20, 21 and 55 of the Principal Act come into 
 
 operation, 273. 
 Appeal, notice of, may be amended at any time by leave of the Court, 
 
 521, 522. 
 Appeal, notice of motion on, to state whether the whole, or part, of the 
 
 judgment is appealed from, 521. 
 
 Appeal, notice of, to be served only upon parties affected, 521, 522. 
 Appeal not permitted from order made by consent of parties, except by 
 
 leave of the Judge making the order, 110. 
 Appeal not to lie from order made at Chambers without leave, nor unless 
 
 motion has been made to discharge or set it aside, 112. 
 Appeal, entering, 525. 
 
 Appeal, officers to follow, from the Division to which it is attached, 533. 
 Appeal, on entering, the order appealed from to be filed with the proper 
 
 officer, 525. 
 Appeal to a Judge from a District Registrar to be, in an action in the 
 
 Chancery Division, to the Judge to whom the action is assigned, 428.
 
 674 INDEX. 
 
 Appeal to Judge in chambers to be by summons, 512. 
 
 Appeal to be by way of re-hearing, and to be brought by notice of 
 
 motion, 521. 
 Appeal, Court of, ordinary Judge of, may be included in commission of 
 
 assize, 90. 
 
 Appeal, Court of, may sit in two Divisions at the same time, 22-3. 
 Appeal, Court of, to hold four sittings in the year, 533. 
 Appeal, petition of, not 1o be necessary, 521. 
 Appeal, Court of, ordinary Judges of the, salaries of, 15. 
 Appeal, ordinary Judges of Court of, to be styled " Justices of Appeal," 
 
 199. 
 Appeal, Court of, arrangements for business in, to be made under the 
 
 direction of the President and Judges, 116. 
 Appeal, Court of, jurisdiction of the Court of Appeal in Chancery vested 
 
 in the Appeal Court, 20. 
 Appeal, Court of, may make any decree, or give any such judgment 
 
 as ought to have been made or given, and may make a further order, 
 
 523. 
 Appeal, Court of, order made by a single Judge of, may be discharged or 
 
 varied by a Divisional, 114. 
 Appeal, Court of, ordinary Judges of, to have each a principal clerk, 149, 
 
 150. 
 
 Appeal, Court of, pensions of future Judges of, 16. 
 Appeal, Court of, powers of, 522, 523. 
 
 Appeal, Court of, single Judge in, may make interim orders, 114. 
 Appeal, Court of, to be a Superior Court of Record, 20. 
 Appeal, Court of, to exercise jurisdiction over solicitors, 157. 
 Appeal, the Court of, jurisdictions vested in, 25. 
 Appeal, Court of, to hear appeals from the High Court, and to have all 
 
 the jurisdiction of the High Court in such appeals, 22, 23. 
 Appeal deposit, to be prescribed by Rules of Court, 529. 
 Appeal to Divisional Court from inferior Courts, determination of, to be 
 
 final, unless leave given to appeal, 103. See " Crown Cases Reserved," 
 
 "Stay of Proceedings," "District Registrar," " Master," T." Costs," 
 
 "Qualification," "Additional Judges," "Jurisdiction," "Judges." 
 
 "Officers," "Evidence," "Cross Appeal,'' "County Court, 1 ' "Inter- 
 locutory Order," "Decree," "Judgment." 
 Appeals from the Court of Chancery of the County Palatine of Lancaster, 
 
 duties with respect to, to be performed by Registrars of Supreme 
 
 Court, 142. 
 Appear, leave to, to notice of claim to contribution, may be applied for, 
 
 and be given upon terms, 348. 
 
 Appearance of a defendant may be at any time before judgment, 320. 
 Appearance, by person served with order to carry on proceedings, 497, 
 
 498. 
 Appearance, defendant in Chancery Division failing to enter, plaintiff 
 
 may file affidavit of service, and proceed as if appearance entered, 330. 
 Appearance, inJAdmiralty actions in rcm, may be entered by any person 
 
 not a party, 321. 
 Appearance, may be set aside when address given on memorandum is 
 
 illusory or fictitious, 318. 
 Appearance, of person not a party served with defence and counter 
 
 claim, 380. 
 Appearance, person obtaining leave to defend shall enter an, 319.
 
 INDEX. 675 
 
 Appearance, time for, in case of service out of jurisdiction, 314. 
 Appearance, to be entered within eight days by persons served with a 
 
 notice of claim to contribution, 348. 
 
 Appearance, to a writ specially indorsed, plaintiff may sign final judg- 
 ment, for non-, 286. 
 
 Appearance, memorandum of, officer to enter appearance on receipt of, 318. 
 Appearance, memorandum of, statements to be contained in, 317. 
 Appearance, memorandum of, to contain names of all defendants for 
 
 whom solicitor appears, 319. 
 Appearance elsewhere than where writ issued, defendant to give notice 
 
 to plaintiff, 317. See " Affidavit," " Probate Action," "Recovery of 
 
 Land," "Default," "Defendant." 
 Appellate Jurisdiction of Court of Appeal in Chancery vested in the 
 
 High Court, 21. 
 Appellate Jurisdiction, movement in favour of, 24. Sec ' ' House of 
 
 Lords." 
 
 Application, by plaintiff under Order LII, Eulc 1, 503. 
 Application, under Order LII, Rules 2 or 3, to be on notice, 504. 
 Application, under section 25, subsection 8, may be ex parte, or with 
 
 notice, 504. 
 
 Application for leave to amend may be made at the trial, 389. 
 Application to set aside verdict or judgment obtained when one party 
 
 not present at trial, 441. 
 Application, which may be made to the Court below, or to the Court of 
 
 Appeal, to be made in the first instance to the Court below, 531. 
 Application refused may be removed ex parte to the Court of Appeal, 526. 
 Application for account may be made by summons supported by affidavit 
 
 at any time after appearance entered, 335. See " District Registrar," 
 
 "Motion," "Summons." 
 
 Appointment of officers of Supreme Court, 153. 
 Appointment to certain offices may be suspended till 1st January, 1877, 
 
 266, 267. 
 
 Arbitration, See " .Referee." 
 Arrears of Rent, claim for, when endorsed on writ, and defendant makes 
 
 default in pleading, the plaintiff may enter judgment against the 
 
 defaulting defendant. 400, 401. 
 
 Archbishops or bishops, to be assessors in Ecclesiastical Causes, 24, 25. 
 Assault, form of indorsement of claim for, 549. 
 Assessment of Damages, form of judgment in default of appearance 
 
 after, 621. 
 
 Assessors, Court may direct a trial with, 445. 
 Assessors, High Court or Appeal Court may call in, 117, 118. 
 Assessors of official Referee may inspect, 446. 
 
 Assessors, remuneration of, to be determined by the Court, 117, 118. 
 Assignment of estate taking place pendtntc lite, the action maybe continued 
 
 by, or against, the person to whom the estate has come, 496. See 
 
 "Assignor," "Notice," "Defective," "Business." 
 Assignor, of chose in action, concurrence of, not necessary to enable 
 
 assignee to recover, 71. 
 
 Assize Courts, jurisdiction of, vested in the High Court, 18. 
 Assizes, the days appointed for holding, and places for holding may be 
 
 altered by Order in Council, 242. 
 Assizes, to be held in London and Middlesex before the Judges of the 
 
 Queen's Bench, Common Pleas, and Exchequer Divisions, 90. See 
 
 " Circuits," " Commission."
 
 676 INDEX. 
 
 "Associate," definition of, 443. 
 
 Associate, certificate of, to bo sufficient authority to the officer to enter 
 
 judgment, 444. 
 Associate to enter findings of fact when proper officer not present at 
 
 Assizes, 443. 
 
 Associate transferred to the Supreme Court, 141. 
 Associates, number of, 443. See " Assizes," " Certificate." 
 Attachment for disobedience to an order for inspection or discovery, 
 
 application for, may be founded on an affidavit of service of the order, 
 
 416. 
 
 Attachment for disobedience to judgment, 467. 
 Attachment, for not answering interrogatories, 415. 
 Attachment of debts, 483. 
 Attachment, party may show ause against application for, 416. 
 
 See "Writ ot Attachment," "Solicitor," "Costs," "Garnishee" 
 
 "Praocipe." 
 
 Attorneys, acts relating to, may be adapted to solicitors by regulation, 229. 
 Attorneys to be called " Solicitors of the Supreme Court," 156. 
 Auditd Quereld, no proceeding by, to be used, 478. 
 
 Bank of England restrained by charging order, 489. 
 
 Bank of England, distringas on, 488, 489. 
 
 Bankruptcy, rules of law of, 39, 43 50, 220, 221. 
 
 Bankruptcy, claim by trustee in, not to be joined with claim by him in 
 any other capacity, 350. 
 
 Bankruptcy, denial of right to claim as trustee in, to be stated specifi- 
 cally, 361. 
 
 Bankruptcy, London Court of, not to be united with the Supreme 
 Court, 218. 
 
 Bankruptcy taking place pendente lite, Court may order trustee in to be 
 made a party to the action, or served with notice, 496. 
 
 Bankruptcy, time for appealing from order in, to be 21 days, 526. 
 
 Bankruptcy, unclaimed dividends in, Court may order payment of, 263. 
 See " Administration," " Bankruptcy," " Abatement." 
 
 Bankruptcy Appeals, rules as to, unless varied by these Acts, to remain 
 in force, 235. 
 
 Barrister of ten years' standing eligible to be Judge of High Court, and 
 of fifteen years' standing eligible to be J udge of Court of Appeal, 1 1 . 
 See " Counsel." 
 
 Bills of Exceptions abolished, 520. 
 
 Bills of Exchange, all or any of the persons severally, or jointly and seve- 
 rally, liable, may be joined as parties to actions on, 338. 
 
 Bills of Exchange, forms of statement, claim, defence, and reply, in 
 actions on, 577, 579. Sec "Act." 
 
 Book for entering filing of copy of writ of summons, c., to be kept, 
 and called the " Cause Book," 295. See " Cause Book," " Judgment 
 Book," " Debt Attachment Book," " Caveat Release Book." 
 
 Books, documents, and papers, of any Court whose jurisdiction is trans- 
 ferred, to be transferred to the Supreme Court, 163. 
 
 Bottomry, forms of statement of claim, defence, and reply, in Admiralty 
 action on, 582 585. 
 
 Bottomry bond to be annexed to affidavit, but Judge may waive produc- 
 tion of, in bottomry action, 297, 298. 
 
 Breach of Contract See " Damages."
 
 INDEX. 677 
 
 Business of Divisional Courts to bo arranged by the Judges of tho High 
 Court, or a majority of them, with tho concurrence of the Lord Chief 
 Justice, 97. 
 
 Business, transfer of pending, 25. See " Distribution." 
 
 Cancellation Deed, see " Deeds," " Stamps." 
 
 " Cause," interpretation of, 168. 
 
 Cause book to be kept as in Chancery, 295. 
 
 Cause book, entries to be made in, 295. See " Book." 
 
 Causes of action, several, may be united in the same action or statement 
 
 of claim, 349. 
 
 Caveat in Admiralty action, 298. 
 Caveat Release Book, caveat to be entered in, 298. 
 
 Central Criminal Court, general or other Commissions under the Acts 
 relating to the Central Criminal Court to be in force until revoked or 
 altered, 141. 
 
 Certificate after trial by jury, form of, 566, 567. 
 Certificate of Associate at Assizes to bo sufficient authority to the officer 
 
 to enter judgment, 444. See "Associate," "Assizes." 
 Chamber Clerk, duties of, in chambers, to bo performed by officers of the 
 
 Court in the permanent Civil Service of Crown, 149. 
 Chamber Clerks existing to be eligible to like office, 267. 
 Chambers, Judge sitting in, may exercise uny jurisdiction vested in the 
 High Court which might previously have been exercised by a single 
 Judge, 92. 
 Chambers, business which may not bo transacted in, by the Masters and 
 
 by the Registrars of the Probate Division, 510, 511. 
 
 Chambers, orders made at, may be discharged by Judge sitting in 
 Court, or by Divisional Court, upon notice, 112. See "Applications, ' 
 "Summons," "Master," "Judge," "Appeal." 
 
 Chancellor of the Duchy and County Palatine of Lancaster, powers with 
 respect to officers of Common Pleas at Lancaster, vested in, to bo 
 exercised by Lord Chancellor, 147, 148. 
 
 Chancellor of the County Palatine of Lancaster, office, position, deed, 
 
 functions of, except in relation to offices of Court of Common Pleas at 
 
 Lancaster, and as an Appeal Judge, not to be affected by the Act, 
 
 149, 165. 
 
 Chancellor of the Duchy of Lancaster, _ Jurisdiction of, as an Appeal 
 
 Judge, vested in the Appeal Court, 21. 
 Chancellor, Lord, See " Lord Chancellor." 
 Chancellor of the Exchequer, not to be a Judge of the Supremo Court, 
 
 165. 
 
 Chancellor of the Exchequer, to cease to exercise judicial functions as a 
 Judge of the Court of Exchequer, but, subject thereto, his duties, 
 salary, and tho incidents of his office, to bo as formerly, 165. 
 " Chancery," Court of Appeal in, interpretation of, 169. 
 Chancery, Court of, united with Supreme Court, 3. 
 " Chancery," " High Court of," interpretation of, 169. 
 Chancery Division, action assigned to, to be marked for one of tho 
 
 Judges, 293. 
 Chancery Division, action transferred to, to bo assigned to one of the 
 
 Judges, 500. 
 
 Chancery Division, business of, to be disposed of in the first instance by 
 one Judge, 100.
 
 678 INDEX. 
 
 Chancery Division, cause or matter commenced in, to be marked for 
 
 one of the Judges of that Division, 100. 
 Chancery Division Judges of the, 76. 
 
 Chancery Division, matters in which Court of Chancery has exclusive 
 jurisdiction under Act of Parliament, (except County Court appeals,) 
 and Matters pending in Court of Chancery assigned to, 83. 
 Chancery Division, reference or appeal from a District Registrar to he, 
 in an action in the, to the Judge to whom the action is assigned, 428. 
 Chancery, rules of Court of, as to parties to he in force, but subject to 
 the Act and these Eules, 342. See " Jurisdiction," " Suits," " Admin- 
 istration, Commission of Assize," "Dissolution," "Trusts," " Par- 
 tition of Sale," "Deeds," "Foreclosure," " Sale," " Specific perform- 
 ance," "Infants" "Officers." 
 
 Charging orders on 'stocks, funds, annuities, or shares, ex parte, 488, 489. 
 Charging orders not to be made at chambers by Master or by Registrar 
 
 of Probate Division, 511. 
 
 Charging orders, proceedings upon, not till after 6 months, 458. 
 Charter Party action, Forms of statement of claim, defence, counter- 
 claim, reply, and rejoinder in, 585, 588. 
 Chief Baron, see Lord Chief Baron. 
 Chief Clerks, transferred to the Supreme Court, 141. 
 Chief Judge in Bankruptcy, to be one of the Judges of the High Court 
 of Justice, selected by Lord Chancellor, 219, 220. See " Bankruptcy," 
 " London.'' 
 
 Chief Justice, see Lord Chief Justice. 
 
 Chose in action, assignment of, to be effectual to transfer legal right and 
 remedies from the date of notice to person liable to pay, 40, 41, 54-57. 
 See "Interpleader," " Assignor." 
 
 Christmas Day, and one day after, offices closed during, 535. 
 Christmas Day not to be reckoned in computation of time, 518. 
 Christmas vacation, beginning and end of, 534. 
 Circuits, recommendations of the Judges as to, 246, 267. 
 Circuits may be discontinued, altered, or formed by Order in Council, 133, 
 
 242. 
 Circuits not to be affected by the Act until other Commissioners are 
 
 named, 164. See "Jurisdiction." 
 
 Claim, where partly admitted, plaintiff to have judgment for that part, 
 and defendant may defend as to residue, 334. See "Indorsement," 
 "Plaintiff," "Statement," "Executor," "Administrator," "Bank- 
 ruptcy," " Discovery," " Contribution." 
 Claims, separate, to be stated separately, 361. 
 
 Clerks of Records and Writs transferred to the Supreme Court, 141. 
 Cause books, kept by, 
 Clerks to Registrars in Chancery transferred to the Supreme Court, and 
 
 to retain their right of succession, 141-143. 
 Clerks entering, 463. See " Chief Clerks," " Chamber Clerks," 
 
 " Judges," Officers," " Duchy." 
 Collision at sea, damages for, Admiralty Rules to prevail where both ships 
 
 at fault, 43, 62. 
 Collision at sea, forms of statement of claim, defence, and reply, in 
 
 Admiralty action, for, 588. See " Preliminary Act," " Damage." 
 Commencement of action, 278. 
 
 Commencement of Acts on 1st November, 1875, 192, 193. 
 Commission of Assize, an ordinary Judge of the Court of Appeal, or any
 
 INDEX. G79 
 
 Judge of the Court of Chancery, or any Serjeant-at-Law or Queen's 
 Counsel, may be included in, 90. 
 To be as valid as if enacted by the Act, 71. See " Surrey," " Commissions," 
 
 " Central Criminal Court." 
 Commissioner, appointed under s. 29 of the Act, question or issue may be 
 
 referred to, to try, 446. 
 
 '( Commissioners to administer oaths, in any Court whose jurisdiction is 
 transferred, to be Commissioners in the High Court and the Court of 
 Appeal, 151. 
 
 Commissioners to take oaths transferred to the Supreme Court, 141. 
 Commissioners to take oaths to be appointed in future by Lord Chan- 
 cellor, 154. 
 
 Committal, form of execution on judgment, 467. See " Referee." 
 Committee. See " Lunatic." 
 Common Law, Superior Courts of, writ of possession to be enforced as 
 
 in ejectment in, 492. 
 Common Law, Superior Courts of, writ of delivery to be enforced as in 
 
 detinue in, 493. 
 
 Common Law, Superior Courts of, united to Supreme Court, 4. 
 Common Law Rules superseded, 55, 63, 67. See "Law," "Legal," 
 " Chancery," " Jurisdiction," " Master of the Rolls," " Q. B.," " C. P.," 
 "Ex.," "Master," Judges." 
 
 Common Pleas, Court of, united to Supreme Court, 3. 
 Common Pleas, jurisdiction of Court of, vested in the High Court, 18. 
 Common Pleas Division, all matters pending in the C. P. at Lancaster 
 in the Court of Pleas at Durham, and in the C. P. at Westminster 
 assigned to, 83. 
 Common Pleas Division, Judges of, 76. See " Lancaster," " Lord Chief 
 
 Justice," Judges," " Jurisdiction." 
 
 Companies and bodies corporate to make entries and alterations relating 
 to funds in Court in their books, as the Lord Chancellor, with the con- 
 currence of the Treasury, may direct, 249 . 
 Companies, winding-up of, 43 50. 
 Companies, administration of assets in, assimilated to bankruptcy, 221. 
 
 See " Act." 
 
 Compensation to secretary to visitors of lunatics, 263. 
 Compensation to officer paid out of fees, 150. 
 Compensation to Registrar of Court of Admiralty, 216. 
 Complaint. See " Statement." 
 Concurrent. See " Law and Equity," " "Writ." 
 
 Condition of mind may be alleged in pleadings without setting out cir- 
 cumstances, 368. 
 Conditions, injunction may be granted with or without mandamus or 
 
 receiver, 42, 58. 
 
 Confession of Defence may be delivered by the plaiutiff, 373. 
 Confession of Defence by plaintiff, form of, 559. 
 Consent of parties. Nee "Appeal." 
 
 Consolidation of actions in same or different Divisions, 501. 
 Contract. See " Specific Performance," " Plaintiff," " Implied," " Damage 
 
 for breach of," Essence. 
 Contribution, person in default for not appearing to notice of claim for, 
 
 may apply for leave to appear, 348. 
 
 Contribution, person served on behalf of defendant with notice of claim to, 
 must enter an appearance within eight days, 348.
 
 680 1SDEX. 
 
 Contribution, person served with notice of claim for, may apply for 
 
 directions as to mode of determining question, may have leave to defend 
 
 the action, and be directed to file pleadings, 349. See " Defendant," 
 
 " Default." 
 
 Conversion of cash into securities, 260. 
 Copy office, to be printed, 638. 
 Copy of entries in debt attachment book may be taken by any person, 
 
 487. 
 Copy of writ of summons may be wholly or partly written or printed, 
 
 and to be left with proper officer on sealing, and be signed by plaintiff 
 
 or by his solicitor, 296. 
 Copy printed, of pleadings, to be delivered to the proper officer on entering 
 
 judgment, and on entering -action for trial, 440, 462. 
 Copy printed, of special case to be delivered by the plaintiff for the use of 
 
 each of the Judges, 422. 
 Copy printed, price of, 638. 
 Copy written, nut to be charged for, when party entitled to a print, 
 
 638. 
 Copy, written, to be delivered by officer with whom document filed, 637, 
 
 638. 
 
 Copies, written, regulations regarding. 639, 640. 
 Copies, ten printed, to be furnished by party printing to any other party 
 
 on demand in writing, 638. See " District Eegistrar," " Counter Claim." 
 Corporation. Set " Interrogatories," " Service." 
 Costs, if statement of claim unnecessary, plaintiff may be visited with, 
 
 374. 
 Costs, appeal not permitted as to, except by leave of Judge making the 
 
 order, 110. 
 Costs, taxed, defendant paying within time limited by indorsement on 
 
 writ, may have, 288. 
 Costs, defendant to be entitled to, of joinder of unsuccessful Plaintiff, 
 
 336. 
 Costs (except costs before the Master), not to bo awarded by Master 
 
 or Eegistrar of Probate Divifiion in Chambers, 511. 
 Costs, form of indorsement for, 549. 
 Costs, Additional Hules as to, 233, 635, 641-663. 
 Costs to be in the discretion of the Court, 513. 
 Costs of action tried by a Jury in the Queen's Bench, Common Pleas, or 
 
 Exchequer Divisions, to follow the event, unless otherwise ordered, 513, 
 
 519, 523. 
 
 Costs of application for attachment of debts, 488. 
 Costs of cross appeal where notice not given, 529. 
 Costs of demurrer overruled, set aside, or allowed, 392, 394, 395, 396. 
 Costs of denial or non-admission of allegation of fact, 378. 
 Costs of discontinuing action, 381. 
 Costs of interrogatories, 406. 
 Costs of trustee, mortgagee, or other person, right of to, out of estate, 
 
 saved, 513. 
 
 Costs of order to amend pleading while demurrer pending, 394. 
 Costs of proving documents, not to be allowed unless notice to admit first 
 
 given, 417. 
 
 Costs of proving document refused to be admitted, 417. 
 Costs of proving will in solemn form, 381. 
 Costs of setting aside a nonsuit, 46-5.
 
 1NDKX. 681 
 
 Costs of taxation where defendant pays claim within time limited by 
 indorsement on writ, 287. 
 
 Costs where plaintiff accepts money paid into Court in satisfaction, 405. 
 
 Costs, security for, married women may sue without a next friend on 
 giving, 340. 
 
 Costs, security for, of appeal to be prescribed by Court of Appeal, 529. 
 See " Evidence," " Prolixity," " Plaintiff," " District Eegistry." 
 
 Council of Judges, of the Supreme Court, to be held once a year, to consider 
 procedure and administration and report to the Secretary of State, 138. 
 
 Council of Judges, may report as to regulating vacations, 69. 
 
 Council of Judges, extraordinary, may be convened at any time, 138. 
 
 Counsel need not sign the pleadings, 357. 
 
 Counter claim of defendant, Court to grant relief in respect of, 29, 34, 366. 
 
 Counter claim against other persons along with the plaintiff, 378. 
 
 Counter claim Court may, on application of the plaintiff before trial, refuse 
 permission to the defendant to avail himself of, 356. 
 
 Counter claim being established, the Court may give judgment for the 
 balance (if any) in favour of the defendant, 330. 
 
 Counter claim may be amended at any time before the expiration of the 
 time allowed for pleading to the reply, and before pleading thereto, 388. 
 
 Counter claim may be ordered to be excluded and disposed of, in an in- 
 dependent action, 380. 
 
 Counter claim, persons sought to be made liable under, to be served with a 
 copy of the defence, 379. 
 
 Counter claim, plaintiff may plead a defence to, in reply, 372. 
 
 Counter claim to be stated separately in statement of defence, 361. 
 
 Counter claim to state specifically the relief claimed, 360. 
 
 Counter claim where there is no reply, may be amended at any time 
 before the expiration of 28 days from the filing of the defence, 388. 
 
 Counter claim, withdrawal of, 382. See " Charter Party," "Statement," 
 
 " Cross Action," " Inferior Courts." 
 
 County Court, appeal from, to be heard by a Divisional Court, 103. 
 
 County Court, Eegistrars of certain, appointed District Registrars, 122, 
 665, 666. 
 
 County Courts, Registrars of, list of, appointed District Registrars, 666, 667. 
 
 County Court Appeals, Acts relating to, may be applied to any other in- 
 ferior Court of Record, 230. 
 
 Court of Revenue, matters cognizable by the Court of Exchequer as a, 
 assigned to the Exchequer Division, 85. 
 
 Court, when one Judge constitutes a, 92, 93. See "Appeal," "London." 
 "Chancery," "Common Pleas," "Queen's Bench," "Exchequer," 
 Durham," "Admiralty," "Probate," "Divorce," Bankruptcy," "Infe- 
 rior Courts." 
 
 Creation of Estate, taking place, pendtnte lite, the Court may order the 
 action to be continued by or against the person to whom the estate has 
 come, 496. See " Defective." 
 
 Creditor, in administration action, form of general indorsement by, 545. 
 
 Crier in Court or on Circuit, personal officers of Judges to perform the 
 duties of, 150. 
 
 Criminal proceedings not to be affected by the rules in Schedule, 539. 
 
 Criminal proceedings not to be transacted by master or registrar of probate 
 division at Chambers 511. See "Practice," "Procedure," "Queen's 
 Bench," " Cause," " Action," " Crown cases reserved," "Commission," 
 " Assizes," " Circuits," Appeal. 
 
 45
 
 682 INDEX. 
 
 Cross action, set-off by way of counter claim to have the effect of a state- 
 ment of claim in a, 356. 
 
 Cross appeal, court of appeal may decide on, though notice not given, 
 524. 
 
 Cross appeal, respondent need not give notice of motion by way of cross 
 appeal, but is to give notice to the parties of his intention, 524. 
 
 Cross-examination on affidavit, 451. 
 
 Cross-examination, defendant or deponent may be compelled to attend 
 for, 452. See " Notice," " Costs." 
 
 Crown cases reserved, decision of Court of, to be final, 108. 
 
 Crown cases reserved, interpretation of, 170. 
 
 Crown cases reserved, jurisdiction as to, to be exercised by five of the 
 Judges of the High Court, 108. See " Practice," and " Procedure." 
 
 Damage to vessel or cargo by collision or otherwise, form of indorsement 
 
 in Admiralty action for, 554. See " Collision" and " Preliminary Act." 
 Damages for breach of contract, claim for, when indorsed on writ and 
 
 defendant makes default in pleading, the plaintiff may enter judgment 
 
 against the defaulting defendant, 400. 
 
 Damages, and other claims, forms of indorsement for, 549 555. 
 Damages, forms of statement of claims, defence, and reply in Admiralty 
 
 action for, 554, 555. 
 Damages may be assessed on writ of inquiry, or by direction of the Judge 
 
 be ascertained in any way in which an action may be tried, 329, 399. 
 Damages to be assessed at the time of trial, when there are several de- 
 fendants, and one makes default, 399. See " Mesne Profits," " Judgment," 
 
 " Statement of Claim." 
 
 Date, pleadings to be marked with a, 359. See " Commencement of Act." 
 Death, taking place, pcndente lite, the court may order the personal repre- 
 sentative to be made a party to the action, or served with notice, 496. 
 
 See " Abatement." 
 
 Debt attachment book, to be kept by the proper officer, 487. 
 Debt, action of. See " Liquidated Demand." 
 Debts. See " Attachment." 
 Decree, word "judgment" to include, 84. 
 Decree for possession in Admiralty causes in rem, 332. 
 Decree, may be appealed from within one year, 528. 
 
 Deed of surrender, office of judge may be vacated in writing without, 10. 
 Deeds, rectification, setting aside, or cancellation of, assigned to the 
 
 Chancery Division, 84. 
 Deeds, cancellation or rectification of, form of indorsement of claim for, 
 
 546. 
 Default, if date of service of writ not indorsed within three days, plaintiff 
 
 cannot proceed by, 310. 
 Default of appearance, 323. 
 Default of appearance on notice of claim to contribution on behalf of 
 
 defendant, to be deemed an admission of the validity of the judgment, 
 
 348. 
 Default of appearance to a writ for an account, on, order may be made for 
 
 account, 335. 
 Default in pleading, 397. 
 Default in pleading, where one of several defendants makes, the plaintiff 
 
 may either set down the cause on motion for judgment against him, or
 
 INDEX. 683 
 
 may wait till he sets it down against the other defendants, 401. 
 
 See "Judgment," "Affidavit." 
 Defective, action not to become, hy assignment, creation, or devolution 
 
 pendente lite .494. See "Assignment," "Creation," "Devolution." 
 Defence, being only to part of plaintiff's claim, plaintiff to have judg- 
 ment for that part, and defendant may defend as to residue, 334. 
 Defence may be combined with demurrer, 393. 
 Defence may be delivered within eight days after appearance, though 
 
 statement of claim not filed nor required, 377. 
 Defence not sufficient which denies generally the facts alleged by the 
 
 statement of claim, 365. 
 
 Defence, statement of, to be delivered to the plaintiff, 355. 
 Defence not to be withdrawn without leave, 381. 
 Defence, person not a party served with, must appear as if served with 
 
 writ, 379. 
 Defence to action for the recovery of land, may be limited to a portion of 
 
 the land in question, to be deemed a defence for the whole, unless 
 
 limited, 322. 
 Defence to be delivered within eight days after statement of claim or 
 
 time limited for appearance, 377. 
 Defence puis darrein continuance, may be pleaded in statement of defence, 
 
 374. 
 
 Defence, separate grounds of, to be stated separately in statement of, 361. 
 Defence, limited, in action for recovery of land, form of notice of, 544. 
 Defence, further, may, within eight days after new ground of defence 
 
 arisen, be delivered, setting forth such new ground of defence, 373. 
 
 See " Abatement," " Statement of Defence," "Counterclaim," "Recovery 
 
 of Land," " Judgment," " Not Guilty by Statute." 
 Defend, leave to, 378. 
 
 Defend, leave to, in action for the recovery of land, 321. 
 Defend, leave to, person obtaining, shall enter appearance and give notice 
 
 to the plaintiff, and shall afterwards be named as a defendant, 322. 
 Defend, leave to, where writ specially indorsed, 332. See " Contribution." 
 Defendant, all persons against whom right to relief is alleged, whether 
 
 jointly, severally, or alternately, may be joined as, 336. 
 Defendant appearing after time fixed to give notice to plaintiff, and not to 
 
 be entitled without leave to further time to deliver his defence, 320. 
 Defendant being added, plaintiff to file and serve amended copy of writ, 
 
 345. 
 
 Defendant being sued in a representative capacity, 286. 
 Defendant claiming contribution from person not a party to the action, 
 
 347. 
 Defendant claiming contribution or indemnity over against another person, 
 
 Court may make order for question to be determined as between them, 
 
 346. 
 Defendant may be allowed or refused leave to defend where writ specially 
 
 indorsed, 334. 
 Defendant, in a Probate action, may give notice with his defence that he 
 
 merely insists on the will being proved in solemn form, 381. 
 "Defendant," interpretation of, 170. 
 Defendant may be ordered to attend, and be examined on showing cause 
 
 against entry of final judgment, 333. 
 Defendant may show cause against entry of final judgment where writ 
 
 specially indorsed, 333.
 
 684 INDEX. 
 
 Defendant need not be interested in all the relief prayed, nor as to every 
 cause of action included in action, 338. 
 
 Defendant neither residing nor carrying on business within the district, 
 may appear either at the District Registry or in London, 315. 
 
 Defendant not having place of business in district, writ to state that he 
 may appear either at District Registry or in London, 292. 
 
 Defendant not requiring statement of claim, plaintiff may yet deliver one 
 within six weeks after appearance of defendant, 374. 
 
 Defendant not residing within district, writ to state that he may appear 
 at District or in London, 292. 
 
 Defendant appearing in London, the action is to proceed in London, 316. 
 
 Defendant, party added as, to be served with summons or notice, 344. 
 
 Defendant, person obtaining leave to defend, to be named as, after appear- 
 ance and notice to the plaintiff, 322. 
 
 Defendant, sole, appearing in District Registry, proceedings to be carried 
 on there, 316. 
 
 Defendant to a writ issued out of a District Registry wherein he resides 
 or carries on business, to appear at the District Registry, 315. 
 
 Defendant to enter appearance in London, except where otherwise pro- 
 vided, 315. 
 
 Defendant appearing to a writ for an account, may show there is some 
 preliminary question to be tried, 335. 
 
 Defendants not appearing, one or mere of several plaintiffs may, when writ 
 indorsed for a liquidated demand, enter final judgment and issue execu- 
 tion, without prejudice to his right to proceed against those who have 
 appeared, 326. 
 
 Defendants, all, who appear, appearing in District Registry, action to pro- 
 ceed there, 316. See " Cross-examination," "Plaintiff," "Interroga- 
 tories," " Solicitor," " Recovery of Land." 
 
 Delivery. See " Writ of Delivery." 
 
 Demur, any party may, to a pleading on the ground that the facts 
 alleged do not show a cause of action, or ground of defence, 391. 
 
 Demurrer, form of, 620. 
 
 Demurrer to be held sufficient, though not entered within ten days after 
 delivery, 392. 
 
 Demurrer may be entered for argument by either party, 394, 397. 
 
 Demurrer shall state ground in law, 392. 
 
 Demurrer, on frivolous ground, may be set aside with costs, 392. 
 
 Demurrer, other than to the whole of a statement of claim allowed, 
 the matter demurred to shall be deemed to be struck out of the 
 pleadings, 395. 
 
 Demurrer to be delivered in the same manner and within the same time 
 as other pleadings, 392. 
 
 Demurrer to state specifically whether it is to the whole or to a part of the 
 pleading demurred to, 392. 
 
 Demurrer, form of memorandum of entry of, for argument, 620. 
 
 Demurrer overruled, if, the Court may make an order allowing the 
 demurring party to raise a case by pleading in opposition to the matter 
 demurred to, 396. See " Defence," " Costs.' 
 
 Denial, evasive, not permitted, 397. See " Statute of Frauds," " Defence," 
 " Representative Capacity." 
 
 Depositions taken before an officer of the Court, or other person, may 
 be ordered to be filed and given in evidence, 450.
 
 INDEX. 685 
 
 Detention of Property, Court may order, 502. 
 
 Devolution, of estate taking p\a,ce,pendente life, the action maybe continued 
 by or against the person on whom the estate has devolved, 496. See 
 " Defective." 
 
 Discharging Order made at Chambers, 112. 
 Disclosure. See " Solicitor " and " Parties." 
 Discontinuance of action, 381. See " Costs," Plaintiff. 
 Discovery may be obtained, 405, 416. 
 Discovery may be reserved until issue determined, 415, 
 Discovery, not to be ordered by Master or Kegistrar of Probate Division 
 
 in Chambers, 511. 
 
 Discovery, order for, service of, 416. 
 Discovery on oath, 411. Ste " Statement of Claim." 
 Dismissal, of motion when all parties not served, 508. 
 Dismissal of action when statement of claim not delivered in time, 397. 
 Dismissal of action for want of prosecution, plaintiff not answering inter- 
 rogatories liable to, 415. 
 
 Disqualifications of Judges to remain as if Acts not passed, 12. 
 Distribution of business among the Judges of the Chancery and Probate, 
 
 Divorce, and Admiralty Divisions, 100. See " Eules of Court." 
 District defined by Order in Council of 12th August, 1875, 122, 665, 666. 
 District Prothonotaries. See " Prothonotaries." 
 District Eegistrar, accounts and inquiries may be referred to, 129. 
 District Registrar, all proceedings down to final judgment, or order for 
 
 an account, may be taken before, 127. 
 District Eegistrar, appeal to Judge from, 427. 
 District Eegistrar, applications to, to be made in the same manner as 
 
 applications at Chambers, 426. 
 District Eegistrar, fees to be taken by, 126. 
 
 District Eegistror may order writ to be renewed for six months, and con- 
 current writ to be renewed, 301. 
 
 District Eegistrar may refer matter to the Judge, 426. 
 District Eegistrar, powers of, 126. 
 
 District Eegistrar, report of, may be acted on by the Court, 129. 
 District Eegistrar to be deemed an officer of the Supreme Court, 226. 
 District Eegistrar to administer oaths, 126. 
 
 District Eegistrar to carry out directions of the Court, 129, 427. 
 District Eegistrar to exercise in actions proceeding in his district the 
 
 same authority as a Master in Chambers, 425. 
 
 District Eegistrar to perform duties assigned by Eules or special Order,126. 
 District Eegistrar to transmit to London documents and office copies of 
 
 entries in actions removed from District Eegistries, 430. See " Juris- 
 diction," "Writ," " District Prothonotary," " Eegistrar," " Fees." 
 District Eegistries established by Order in Council of 12th August, 1875, 
 
 122, 666-667. 
 District Eegistry, action commenced in, may, on the application of any 
 
 party, be removed to the High Court, but Court may refuse too sudden 
 
 removal, 128, 428, 430. 
 District Eegistry, costs to be taxed in, where final judgment entered in, 
 
 unless otherwise ordered, 425. 
 
 District Eegistry, documents in action proceeding in, to be filed there, 370. 
 District Eegistry, in actions proceeding in the, all writs of execution to 
 
 issue from the, unless Court direct otherwise. 425.
 
 68t> INDEX. 
 
 District Eegistry, judgments and orders in (except orders made by the 
 District Registrar under the Kules of Court), to be entered in London, 
 425. 
 District Registry, proceedings may be prescribed by Rules of Court, to be 
 
 recorded in, but to be subject to control of Court, 127, 427. 
 District Registry to have a seal, and documents sealed therewith to be 
 
 evidence, 125. 
 
 Distringas See " Writ of Distringas," " Bank of England," " Act." 
 Distringas nuper vicecomitem See " Writ of Distringas nuper vicecomitem." 
 Division, cause or matter to be marked for the, in which it is commenced,. 
 
 83. 
 
 Division, the, to be specified on writ, 277. See " Option," " Pleading." 
 Divisional Appeal Court, to hear Privy Council Appeals referred to it, to- 
 to be composed of Judges of Court of Appeal and members of the Privy 
 Council, 116. 
 Divisional Court, taking business, like that of sittings in Banco, to in/- 
 
 elude one or more Judges attached to the Division, 97. 
 Divisional Court, every Judge of the High Court may sit in any, 95. 
 Divisional Courts, any number of, may sit at one time, 95. 
 Divisional Courts, cases may be reserved to be argued before, 106. 
 Divisional Courts for business of Queen ? s Bench, Common Pleas, and 
 
 Exchequer Divisions, 97. 
 Divisional Courts may bo held for Chancery, Probate, Divorce, and 
 
 Admiralty business, 101 102. 
 Divisional Courts to consist of three Judges when possible, and of not less 
 
 than two, 95. 
 Divisional Courts to hear matters not proper to be heard by a single 
 
 Judge, 95. 
 
 Divisions of the High Court, names of the five, 76, 80. 
 Divisions of the High Court, number of, may be reduced or altered by 
 order in Council, 76, 80. See "Officers," "Judges," "Business," 
 " Distribution." 
 Divisions of Supreme Court, to be two permanent, the " High Court of 
 
 Justice," and the " Court of Appeal," 5. 
 
 Divorce and Matrimonial Causes, Court of, united to Supreme Court, 3. 
 Divorce and Matrimonial Causes, all matters pending in Court of, or 
 within the exclusive cognizance of the Court of, assigned to Probate, 
 Divorce, and Admiralty Division, 86. 
 Divorce and Matrimonial Causes, Judge of the Court of, to be one of the 
 
 first Judges of the High Court, 6. 
 Divorce and Matrimonial Causes, jurisdiction of the Court of, vested in 
 
 the High Court, 18. 
 Divorce and Matrimonial Causes, rules of the Court of, unless varied, to- 
 
 remain in force, 235. 
 Divorce and Matrimonial Causes, rules of the Schedule to Act of 1875 not 
 
 to apply to Court of, 538. 
 Document, effect of, may be stated in pleadings without setting out, but 
 
 precise words, if material, may be set out, 368. 
 Document not produced in compliance with notice, not to be put in as 
 
 evidence, 412. 
 
 Documents, 'extracts from, not to be inserted in affidavit. 
 Documents, admission of, 417- 
 
 Documents, not properly stamped with fees of Court, not to be received 
 in evidence, 252.
 
 INDEX. 687 
 
 Documents, unstamped with fees of Court, may be ordered to be stamped 
 
 after having been received in evidence or filed, 252. 
 Documents, entire contents of, may be referred to on the hearing of a 
 
 special case, 419. See "Production," "District Kegistry," "Affidavit," 
 
 " Inspection," " Production," " Notice." 
 Doubt existing as to proper person to be sued, the plaintiff may join two 
 
 or more persons as defendants, 339. 
 Doubt as to status of existing officers may be determined by Rules of 
 
 Court, 151. 
 Duchy and County Palatine of Lancaster, powers with respect to officers 
 
 of, vested in the Chancellor of, to be in future exercised by the Lord 
 
 Chancellor, 147. 
 Duchy of Lancaster, clerk of the Council of, not to be attached to the 
 
 Supremo Court, 142. 
 Durham, County Palatine of, to cease to be such as regards the issue of 
 
 Commissions of Assize, 168. 
 Durham, Court of Pleas at, rules for regulating the business of, to be 
 
 made as rules may be made under the Act, 147, 148. See " Action," 
 
 "Pleas," " Prothonotaries," " Jurisdiction." 
 
 Easter sittings, commencement and end of, 534. 
 
 Easter vacation, commencement and end of, 534. 
 
 Ecclesiastical causes, see " Order in Council." 
 
 Ejectment. See " Recovery of Land." 
 
 Election petitions, Judges for trial of, on the rota at the commencement 
 
 of Act to continue for the current year, 91. 
 Election petitions, Judges for trial of, to be chosen, until Rules provide 
 
 otherwise, out of the Judges of the Common Law Divisions by the 
 
 Judges of those Divisions, 91. See " Rota." 
 Elegit, ace " Writ of Elegit." 
 Entry of judgment, see " Judgment." 
 Entry on lands, or buildings for the purposes of inspection, may be 
 
 authorised by the Court, 502. 
 Equipment of ship, forms of statement of claim, defence, reply, and 
 
 rejoinder in action for, 590, 592. 
 
 Equitable defence, to have the same effect as in the Court of Chancery, 29. 
 Equitable estates, titles, rights, duties and liabilities, Court to recognise, 30. 
 Equitable relief, plaintiff entitled to, to have the same, as he would have 
 
 had from the Court of Chancery, 28. 
 Equitable relief, defendant to have the same, as if he were plaintiff, 29. 
 
 See "Counterclaim." 
 Equity, rules of, to prevail over those of the Common Law, 43. See " Order 
 
 in Council," " Law and Equity," and " inferior Courts." 
 Error, proceedings in, abolished, 520. 
 Essence of contract, equitable construction of stipulations not of the 
 
 essence of the contract to prevail, 42, 57, 58. 
 Evidence, in trials by Jury, mode of giving oral, not to be affected by the 
 
 Act, 237. 
 Evidence may be taken on Preliminary Act, without its being necessary to 
 
 file pleadings, 370. 
 Evidence, not printed below, may bo ordered to bo printed for appeal, but 
 
 if printed without order, visited with costs, 527. 
 Evidence not to be contained in the pleadings, 357. 
 Evidence of admissions, 418.
 
 688 INDEX. 
 
 Evidence, on questions of fact, may be taken by Appeal Court on inter- 
 locutory applications beyond that taken on the original decision, 522. 
 Evidence, Rules of Court may direct mode of taking, in any particular 
 
 class of cases, 448. 
 Evidence to be taken in open Court, and vivd voce, in the absence of 
 
 agreement to the contrary, 448. See " New Trial," " District Registry." 
 
 " Notes," " Verified Notes," " Affidavit," " Samples," " Experiments." 
 Evidence on interlocutory applications may be given by affidavit, 449. 
 Evidence, hearsay, in affidavit, costs of, to be paid by the party filing, 449. 
 Evidence, further, not to be taken on appeals from a decree or judgment 
 
 except by special leave, 522, 523. 
 
 Evidence before Referee to be taken as at other trials, 447. 
 Examination upon oath of witness may be directed before an officer of the 
 
 Court or other person, 450. See " Judgment-debtor." 
 Exception "annexed to record, objection to Judges' ruling may be taken by 
 
 ruction founded upon, 240. 
 Exceptions not to be taken to affidavit in answer, 409. See " Bills of 
 
 Exceptions." 
 
 Exchequer, Act not to affect the office of the Receipt of th.e, 116. 
 Exchequer, Court of, united to Supreme Court, 3. 
 Exchequer, Junior Barons of the Court of, to be among the first Judges 
 
 of the High Court of Justice, 6. 
 Exchequer Division, all causes within the exclusive cognizance of the 
 
 Court of Exchequer, and all matters pending in the Court of Exchequer 
 
 assigned to the Exchequer Division, 85. 
 Exchequer Division, Judges of, 77. See " Jurisdiction," " Officers," " Lord 
 
 Chief Baron," " Jurisdiction," " Lord Treasurer," " Chancellor of the 
 
 Exchequer." 
 Execution against person adjudged to be a partner or served as a partner 
 
 and failing to appear, 470. 
 
 Execution against the property of partners, 476. 
 Execution, interpretation of, 474. 
 
 Execution may be issued within six years, and by leave afterwards, 478. 
 Execution against one or more defendants not appearing to a writ indorsed 
 
 for a liquidated sum, 326. 
 Execution against garnishee to be a valid discharge to him as against 
 
 the judgment-debtor, 485, 486, 487. 
 Execution of trusts, form of general indorsement for, in Chancery Division, 
 
 546. See " District Registry," " Garnishee." 
 
 Executor, denial of right to claim as, to be stated specifically, 361. 
 Executor, whether plaintiff or defendant, may represent estate without 
 
 beneficiaries being joined, 339. 
 Executor or Administrator, claims by or against, may be joined with 
 
 claims by or against him personally, if with reference to the same estate, 
 
 351. See " Administrator," " Representation capacity." 
 "Existing," interpretation of, 170. 
 
 Ex-officio Judges of the Court of Appeal, 198. See " Judges." 
 Es-parte order may be made, on terms where ordinary proceedings would 
 
 cause delay, but party affected may move to set aside, 507, 508. See 
 
 " Application." 
 Expense of producing deponent for cross-examination not to be demanded 
 
 in the first instance, 452. 
 
 Expenses may be levied in every case of execution, 473. 
 Experiments may be made by order of the Court, 503.
 
 INDEX. 689 
 
 Extraordinary duties of Lord Chancellor, Lord Chief Baron, Lord Chief 
 Justice of England, Lord Chief Justice of the Common Pleas, Master 
 of the Rolls and other Judges, to continue to be performed by them, 14. 
 
 False imprisonment, forms of statement of claim, defence, and reply in 
 action for, 593. 
 
 Fees of Court may be increased, reduced, or abolished, but subject thereto 
 shall continue to be taken as heretofore, 250, 253. 
 
 Fees of Court to be regulated by Order of the Lord Chancellor, with the 
 consent of the Judges, or three of them, 250. 
 
 Fees, Sheriff's, may be levied in every case of execution, 473. See 
 " District Registrar's," " Compensation," "Lord Chancellor," " Stamps." 
 
 Fi. fa. See writ of./?, fa. 
 
 Fi. fa. de bonis eccleslasticis. See writ of fi. fa. de bonis ccclesiasticis. 
 
 Filing of copy of writ of summons by proper officer, 295. 
 
 Filing of affidavit of service, 328. 
 
 Filing of proofs in Admiralty action in rein, 331. See " Appeal," " Copy." 
 
 Foreclosure action, form of statement of claim, defence, counterclaim, and 
 reply in, 594. 
 
 Form of action, 272. 
 
 Form of affidavit as to documents, 562. 
 
 Form of affidavit in answer to interrogatories, 411, 561, 562. 
 
 Form of answer to interrogatories, 408, 561, 562. 
 
 Form of notice where writ specially indorsed, and statement of claim 
 dispensed with, 376. 
 
 Form of statement of claim in such case, 560. 
 
 Form of indorsement of character of parties, 557, 558. 
 
 Form of money claims, 546, 547. 
 
 Form of joinder of issue in action for recovery of land, 613, 615. 
 
 Form of memorandum of appearance, 543, 544. 
 
 Form of notice of time and place for inspection of documents, 413. 
 
 Form of writ for service out of the jurisdiction, 279, 280, 541. 
 
 Forms in force before the Act to remain in force unless inconsistent, 
 238. 
 
 Forms relating to funds in Court, and accounts to which they are carried 
 may be modified by the Lord Chancellor, with the concurrence of the 
 Treasury, 249. See " Certificate," " Confession," " Charter party," 
 " Demurrer," " Creditor," " Legatee," " Deeds," " Partners," " Specific 
 Performance," " Execution," "Mortgagor," "Mortgagee," "Partner- 
 ship Costs," "Damage," "Owner," "Salvors," "Collision," "Neces- 
 saries," " Wages," " Towage," " Possession," " Writ," " Production," 
 " Equipment," " Bottomry," " Administration," " False Imprison- 
 ment," "Frauds," "Negligence," "Probate," "Promissory Note," 
 "Recovery of Land," "Salvage," "Trespass," "Agent," "Bill of 
 Exchange," " Foreclosure," " Special Case," " Indorsement," " De- 
 fence," " Interrogatory," "Judgment," "Notice," "Account stated," 
 " Landlord," " Guarantee." 
 
 Fraud, forms of statement of claim, defence, reply, in action for, 600. 
 See " Statute of Frauds." 
 
 Fradulent intention, to be alleged in pleadings without setting out the 
 circumstances, 368. 
 
 Funds in Court, rules relating to dealings with, to be deemed rules of 
 practice and procedure, 248. 
 
 Funds in Court, the Lord Chancellor may, -with the concurrence
 
 690 INDEX. 
 
 of the Treasury, order to what accounts, are to be carried, 248. See 
 " Companies." 
 
 Gaol Delivery, Commissions of, not affected by the Acts, 164. 
 
 Garnishee disputing his liability, Court may order issue to be tried, 485. 
 
 Garnishee, execution may issue against, 485. 
 
 Garnishee may be ordered to appear and show cause why he should not 
 pay to judgment-creditor the debt due from him to the judgment- 
 debtor, 483. 
 
 Garnishee, suggesting that debt belongs to another person, course to be 
 followed on, 486. See " Attachment," " Debts," " Executive." 
 
 Good Friday, not to be reckoned in computation of time, 518. 
 
 Good Friday, offices closed on, 535. 
 
 Great Seal, Letters Patent under, 20. 
 
 Great Seal, the Lords Commissioners of, to represent the Lord Chan- 
 cellor, 167. 
 
 Great Seal, the patronage of the Lord Chancellor to be exercised by the 
 Senior Lord Commissioner of the, 167. 
 
 Guardian ad lit em, for infant defendant, or defendant of unsound 
 mind, not to be appointed unless writ duly served, 323. 
 
 Guardian ad lit cm, infant defendant, or defendant of unsound mind, not 
 appearing, plaintiff may apply for, 323. 
 
 Guarantee, form of statement of claim in action on guarantee, 602. 
 
 Hearing of appeal may be adjourned for the purpose of serving parties 
 
 and persons not parties, 521. 
 High Court of Justice, to exercise authority of Supreme Court over its 
 
 officers, 153. 
 
 High Court of Justice, to exercise jurisdiction over solicitors, 157. 
 High Court of Justice, to exercise the several jurisdictions vested in it, 
 
 after the commencement of the Act, 26. 
 High Court of Justice, to be a Superior Court of Record, 17. See 
 
 " Pensions," " Officers," " Appeal," " Sittings," " Judges," " Juris- 
 diction." 
 
 Hilary Sittings, commencement and end of, 533. 
 House of Commons, Judges not to sit in, 1 1 , 207. 
 House of Commons, debates in, 23, 24, 195, 201, 514, 520. 
 House of Commons, division in, on abolition of appellate jurisdiction in 
 
 1873, 23, 29. 
 
 House of Lords, appeal to, abolition of, suspended, 23, 192. 
 House of Parliament. See " Order in Council" 
 Husband and Wife, claims by or against, may be joined with claims by 
 
 or against either of them separately, 351. See " Marriage," " Service." 
 
 Implied contract may be simply alleged in pleadings with reference to 
 
 circumstances, 369. 
 Indemnity being claimed by a defendant against a third party, the 
 
 Court may order the question to be determined, 346. 
 Indorsement of claim on writ of summons may be amended by leave 
 
 of Judge, 286. 
 Indorsement of claim on writ of summons need not set forth the precise 
 
 remedy or relief, 286. 
 Indorsement of claim on writ of summons to show in what capacity 
 
 plaintiff sues and defendant is sued, 286. 
 Indorsement of claim on writ of summons, to state amount claimed,
 
 INDEX. 691 
 
 and that proceedings will be stayed upon payment within time limited, 
 287. 
 
 Indorsement of writ of summons when issued from District Registry, 289. 
 Indorsement of writ of summons, where defendant dispenses with state- 
 ment of claim, 276. 
 
 Indorsement of claim on writ of summons, 544, 558. 
 Indorsement of claim, forms of, on writ of summons, 284, 285, 544 558. 
 Indorsement of claim on writ of summons may be ordered to be amended 
 
 where causes of action arc inconveniently joined, 353. 
 Indorsement of claim to be made on every writ before issued, 277, 284. 
 Indorsement of counter-claim by defendant, form of, for service on person 
 
 not a party, 560. 
 
 Indorsement on writ, special, leave to defend where there is a, 332. 
 Indorsement on writ of summons, special, of particulars of debts or liquidated 
 
 demands, 286, 287. 
 
 Indorsements, special, forms of, under Order III., Rule 6, 285, 556, 557. 
 Indorsements, general, forms of, 544. See " Rules of Court," " Probate,' 
 " Division," " Liquidated demand," " Account," " Address," " Occu- 
 pation," "Writ," "Execution." 
 Infant, allegations of fact in a pleading, not being a petition or summons, 
 
 cannot be taken as admitted against an, 364. 
 Infant defendant or plaintiff may, in default of appearance of, apply for 
 
 appointment of guardian ad litcm, 323. 
 
 Infants, custody and education of, rules of equity to prevail as to, 43, 64. 
 Infants to defend by guardian ad litein, and sue by a next friend, 340. 
 Infants, wardship of, assigned to the Chancery Division, 84. See " Special 
 
 case," " Service." 
 Inferior Courts, exercising Equity or Admiralty jurisdiction by Order in 
 
 Council to have the powers of the High Court, 159, 160. 
 Inferior Courts, proceedings may, where a counter claim involves matter 
 
 beyond the jurisdiction, be transferred from, 161. 
 Injunction may be granted at any time with or without conditions, 42, 
 
 58, 501. 
 Injunction not to be granted by Master at Chambers or by Registrar in 
 
 Probate Division, 511. 
 
 Injunctions to restrain action at law abolished, 31. 
 Inquiries. Sec " Accounts and Inquiries." 
 Insolvent Estates, See " Companies," " Winding-up," " Bankruptcy," 
 
 and " Administration." 
 
 Inspection of documents may be reserved until issue determined, 415. 
 Inspection of documents, order for, to be applied for at Chambers, 414. 
 Inspection of documents, where party served omits to give notice of, the 
 other side may apply for an order for, 413. See 11 Affidavits," " Notice." 
 Inspection of property, Court may order, 502. 
 Interlocutory order, as to mandamus or injunction, 501. 
 Interlocutory order, definition of, may be determined by the Court of 
 
 Appeal, 225. 
 
 Interlocutory order may be appealed for within twenty-one days, 528. 
 Interlocutory order may be applied for upon admission of fact, without 
 
 waiting for the determination of any other question, 461. 
 Interlocutory order, not to prejudice appeal, 528. See " Appeal." 
 Interlocutory judgment, See "Judgment." 
 
 Interlocutory proceedings in a cause to be taken in the Division to which 
 the cause or matter is attached, 223.
 
 692 INDEX. 
 
 Interpleader, application by defendant for, may be made at any time after 
 service of writ and before defence, 273. 
 
 Interpleader, not to be directed by Master or Eegistrar of Probate Divi- 
 sion in Chambers, 510. See " Assignor." 
 
 Interpretation Clauses, 168, 538. 
 
 Interrogatories, defendant not answering, liable to have his defence struck 
 out, and to be treated as not defending, 415. 
 
 Interrogatories, form of, 407, 561. 
 
 Interrogatories in writing, for the examination of the opposite party, may 
 be delivered at any time before the close of the pleadings, 405. 
 
 Interrogatories may by leave be delivered to a member or officer of a cor- 
 poration, 407. 
 
 Interrogatories, not more than one set of, to be delivered to the same party 
 without an order, 405. 
 
 Interrogatories, plaintiff not answering, to be liable to have his action 
 dismissed for want of prosecution, 415. 
 
 Interrogatories to be answered by affidavit, 408. 
 
 Interrogatories to have a note at the foot stating which of them each 
 party is required to answer, 405. 
 
 Interrogatories, vexatious or unreasonable, 406, 407. 
 
 Issue may be directed to be prepared and settled by the Judge, 385. 
 
 Issue may be directed where judgment is subject to a condition or con- 
 tingency, 468. 
 
 Issue may be referred to be tried in Middlesex or London, ?2. 
 
 Issue may be referred to Commissioner appointed under s. 29 of the Act, 446 
 
 Issue not to be settled by Master or Eegistrar of Probate Division at 
 Chambers, 511. 
 
 Issue other than those in the action arising between parties, application 
 in default of pleading in, 402. See, " Garnishee," " Jury," " Writ." 
 
 Joinder of several causes of action, in same action by plaintiff permitted, 
 
 but Court may order actions to be tried separately, 349. 
 Joinder of causes of action, defendant may apply where inconvenient, 352. 
 Joinder, inconvenient, of causes of action, Court may, on application, order 
 
 any cause of action to be excluded, and statement of claim or indorse- 
 ment on writ amended, 353. 
 
 Joinder of issue by plaintiff upon the defence in his reply, 366. 
 Joinder of issue by either party in a pleading (if any) subsequent to reply, 
 
 366. 
 
 Joinder of issue to be deemed to close the pleadings, 385. 
 Joinder of issue to be the only plea after reply, except by leave, 384. 
 Joinder of issue to operate as a denial of every material allegation of fact 
 
 in the pleading upon which issue is joined, 366. 
 Joinder of issue may except facts admitted, and thus operate as a denial 
 
 of the facts not admitted, 366. 
 Joinder of parties, plaintiff may join all or any persons severally, or 
 
 jointly and severally, liable on one contract, 338. See " Doubt," " Mesne 
 
 Profits," " Recovery of Land," " Parties." 
 Judge, action, cause, or matter, pleadings in, to be marked with name of, 
 
 to whom assigned, 83. 
 Judge, matters not proper to be heard by a single, to be heard by a 
 
 Divisional Court, 95. 
 Judge may dispose of matter referred to him by District Registrar, or may 
 
 refer it back, 427.
 
 INDEX. 693 
 
 Judge may exercise in Court or in Chambers any jurisdiction of the High 
 
 Court which might previously have been exercised in Court or in 
 
 Chambers by a single Judge, 92. 
 Judge to have power with respect to proceedings before Referees which 
 
 are given with respect to arbitrations by Common Law Procedure Act, 
 
 1854, 121. 
 
 Judge, vacancy in the office of, 114. 
 Judge appointed to fill vacancy to be a Judge of the Division where the 
 
 vacancy occurs, 78. 
 Judges, new, succeeding present C.J., C.J.C.P., C.B., and M.R., to have 
 
 same office, title, and precedence as they, 6. 
 Judge, office of a, of the High Court vacated by his being appointed a 
 
 Judge of the Appeal Court, 10. 
 Judges, privileges of saved, 12. 
 Judges, permanent, the number of, 197. 
 Judges appointed before passing of Act not to be required to act at 
 
 Assizes, unless previously liable, 13. 
 
 Judges to perform the same duties as if Act not passed, 13. 
 Judges, deficiency in number of, to be filled up, 76. 
 Judges may be transferred from one Division to another by Royal Sign 
 
 Manual, 76. 
 Judges not to sit on appeal from the judgment of Court of which 
 
 member, 116, 200. 
 Judges of High Court to be addressed like Judges of Superior Courts of 
 
 Common Law, 6. 
 Judges, new, to be styled " Judges of Her Majesty's High Court of 
 
 Justice," 6. 
 
 Judges, puisne, to have attached to them a Principal, and Junior Clerk, 149. 
 Judges to hold office during good behaviour, subject to removal by the 
 
 Crown on address presented by both Houses of Parliament, 267. 
 Judges, total number not to be reduced, 80. See " Council of Judges," 
 
 " Extraordinary duties," " Qualifications," " Vacation Judges," 
 
 "L.C.J.," " L.C.J.C.P.," "L.C.B.," M.R., " Salaries," Pensions," 
 
 " Qualification." 
 
 Judicature Commission, recommendations of First Report of, passim. 
 Judgment, form of, under Bills of Exchange Act, 283. 
 Judgment after trial by Jury, form of, 662. 
 Judgment after trial by Referee form of, 662. 
 Judgment against defendant in default of pleading, 401, 400. 
 Judgment against partners, 400. 
 Judgment against persons not parties, may be enforced in the same 
 
 manner as against parties, 477. 
 
 Judgment at trial by Judge without Jury, form of, 621, 622. 
 Judgment, entry of, 462. 
 Judgment, entry of, pursuant to an order or certificate, or the return to 
 
 a writ, 465. 
 Judgment, entry of, upon the filing of an affidavit or the production of a 
 
 document, 464. 
 
 Judgment, interpretation of, 168. 
 Judgment, may be directed to be entered with or without leave to move, 
 
 442. 
 Judgment may be given against one or more of the defendants liable 
 
 without amendment, 337. 
 
 Judgment may be in favour of one or more plaintiffs without amend- 
 ment, 336.
 
 694 INDEX. 
 
 Judgment may be varied by the Court, 325. 
 
 Judgment, on issues other than those in the action arising between the 
 
 parties, 402. 
 Judgment, plaintiff may be empowered to sign, where writ specially 
 
 indorsed and defendant not permitted to defend, 332. 
 Judgment, right to enforce, not to be curtailed by the Rules, 479. 
 Judgment, subject to condition or contingency, plaintiff can issue 
 
 execution only on leave obtained, 468. 
 Judgment, to date as of the day it is pronounced and to take effect from 
 
 that date, 463. 
 Judgment, whether interlocutory or final, to be entered in District 
 
 Registry where writ issued, 423. 
 
 Judgment, interlocutory and final against the same Defendant, 400. 
 Judgment, interlocutory against one of several Defendants being 
 
 entered, the plaintiff may proceed against the rest, 399. 
 Judgment, final, on writ specially indorsed, where Defendant does not 
 appear, may be signed for a sum not exceeding amount indorsed and 
 interest and costs, 325. 
 
 Judgment after trial, not to be entered without order, 442. 
 Judgment with leave to move, to be entered upon production of 
 
 Associate's certificate, 444. 
 
 Judgment with leave to move, to be set down on motion for judgment, 456. 
 Judgments and Orders, in District Registry, except orders made by 
 
 District Registrar under the Rules, to be entered in London, 425. 
 Judgments and Orders, made in District Registry, and entered in 
 
 London, Office copies of, to be transmitted to District Registry, 425. 
 Judgment, action may be set down by Plaintiff on motion for, as soon 
 
 as issues are determined, 459. 
 Judgment, action not to be set down on motion for, after the expiration 
 
 of one year, 460. 
 
 Judgment, form of, upon motion for, 623. 
 
 Judgment motion for, may be directed to stand over for further 
 consideration while issues tried or accounts and inquiries taken, 461. 
 Judgment, when defendant fails to plead or demur, 401. 
 Judgment, motion for, when not directed to be entered, plaintiff may 
 
 set down action on, 442, 457. 
 
 Judgment, motion for, where some only of several issues have been deter- 
 mined, 460. 
 Judgment, motion for, defendant may set down action on, if plaintiff does 
 
 not within ten days of trial, 457. 
 
 Judgment, motion to set aside order, shall be an order to show cause, 459. 
 Judgment motion to set aside, without leave reserved, 458. 
 Judgment for default of pleading and when one party not present 
 at trial maybe set aside, 403, 441. See "Execution," "Attachment," 
 " Possession," " Writ," "Committal," " Recovery of land, " "Defen- 
 dant," " Proper officer," " Liquidated demand," "Summons." 
 Judgment Debtor, may be orally examined as to whether any debts 
 
 are owing to him, 483. 
 
 Judicial Committee of the Privy Council, appeal to, suspended, 23, 192. 
 Judicial Committee of the Privy Council, if appeals to, are referred to 
 the Appeal Court, one Divisional Appeal Court to sit throughout the 
 year, 116 
 
 Judicial Committee of the Privy Council, what appeals to are by the Act 
 of 1875, s. 2, transferred to the House of Lords, discussed, 194, 195, 196.
 
 INDEX. 695 
 
 Judicial Committee of the Privy Council, the paid members of, may 
 attend Divisional Appeal Court, 116. See " Jurirdiction." 
 
 Juries, law relating to, not to be affected by the Act, 237. , 
 
 Jurisdiction, not vested in the High Court, 19. 
 
 Jurisdiction in Bankruptcy and in Chancery of the Appeal Court in 
 Chancery vested in the High Court, 20. 
 
 Jurisdiction of Assize Courts vested in the High Court, 18. 
 
 Jurisdiction of the Court of Appeal, 5, 22. 
 
 Jurisdiction of the High Court of Justice, 5, 18. 
 
 Jurisdiction of Judges on Circuit, 71. 
 
 Jurisdiction of the Court of Appeal in Chancery of the County Palatine 
 of Lancaster, vested in the Appeal Court, 20. 
 
 Jurisdiction of the Judicial Committee of the Privy Council in Admiralty 
 and Lunacy appeals, vested in the Appeal Court, 18, 20. 
 
 Jurisdiction of Court of Divorce and Matrimonial Causes, of Court of 
 Common Pleas at Lancaster, of Q. B. C. P. and Ex., of Court of 
 Picas at Durham, &c., vested in High Court, 18. 
 
 Jurisdiction of Court of Exchequer Chamber vested in the Court of Ap- 
 peal, 20. 
 
 Jurisdiction, rules as to exercise of, 27. See " Judge," " Service out of 
 the," "jurisdiction," "Stannaries," "M. R.," "inferior Courts," 
 "Chancery Court," " Divorce," "District Registrar," "Master." 
 
 Jury, trial without a, may be directed of questions which before the Act 
 could have been so tried, 444. See " Judgment," " Evidence." 
 
 " Justices of Appeal," to be the style of the ordinary Judges of the Court 
 of Appeal, 199. 
 
 Jury, trial by a, to be before a single Judge, 436. 
 
 Jury, fears of Common Lawyers as to trial by, being abolished or im- 
 paired led to concessions, 234 (n), 241. 
 
 Jury, trial by a, may be directed of issue of fact, 445 . 
 
 Justices of the Peace, statement of case by, 104. 
 
 Justices of the Peace, decision of final on appeals to them, 104 
 
 Lancaster Fee Fund, to be handed over to the National Debt Commis- 
 sioners, 254. See " Prothonotarics," " Common Pleas," " Chan- 
 cellor," Duchy," " County Palatine " " Jurisdiction," " Queen's 
 Counsel," " Officers," " Action." 
 
 Landlord and Tenant, forms of statements of claim and defence, counter- 
 claim and reply in actions between, 603, 604, 612, 613. 
 
 Law and Equity, to be concurrently administered in High Court, and in 
 Inferior Courts also, 28, 159, 160. 
 
 Legal claims, rights, titles, obligations and liabilities, to be recognised 
 by the Supreme Court, 32. 
 
 Legatee, form of general indorsement by, in action to administer estate, 
 525. 
 
 Letters Patent, jurisdiction relating to, not transferred, 20. 
 
 Letters Patent, pensions to Judges to be granted by, 16. 
 
 Letters Patent, appointment of ordinary Judges of Court of Appeal to 
 be by, 199, 200. 
 
 Liberty of the subject, matters relating to the, not to be transacted by 
 Masters, or by Registrar of Probate Division, in chambers, 511. 
 
 Lien, property claimed by defendant, as subject to, may be ordered to be 
 given up on payment of amount into Court, 505. 
 
 Liquidated demand and detention of goods and pecuniary damage being
 
 696 INDEX. 
 
 the subject of one action, final judgment may be entered in default of 
 appearance or pleading against a defendant for the debt and inter- 
 locutory judgment for the value of the goods, 400. 
 
 Liquidated demand, form of judgment in default of appearance or 
 pleading in case of a, 621. 
 
 Liquidated demand, plaintiff may enter judgment and issue execution 
 againstone or more defendants not appearingto a writindorsed for a, 326. 
 
 Liquidated demand, when claim is for, and defence or demurrer not de- 
 livered in time, plaintiff may enter judgment, 398. 
 
 London includes Middlesex (?), 315. 
 
 London, any party to an action proceeding in, may apply for an order to 
 remove same to District Registry, 423. 
 
 London, sittings in, to be continuous, 74. 
 
 "London Court of Bankruptcy," interpretation of, 169. See "Bank- 
 ruptcy " " Appeal." 
 
 Long Vacation, commencement and end of, 534. 
 
 Long Vacation, not to be reckoned in time for filing, amending, or de- 
 livering pleadings unless so directed, and pleadings not to be filed, 
 amended, or delivered in the, except by leave, 512. 
 
 Lord Chancellor, office and position of not to be affected, 164. 
 
 Lord Chancellor to be President of Court of Appeal, 9, 210. 
 
 Lord Chancellor, every writ to be tested in the name of the, 284. 
 
 Lord Chancellor to exercise, with respect to officers of the Court of Com- 
 mon Pleas at Lancaster, the powers now vested in the Chancellor of the 
 Duchy, 147. 
 
 " Lord Chancellor," interpretation of, 168. 
 
 Lord Chancellor may at any time convene Extraordinary Council of 
 Judges, 138. 
 
 Lord Chancellor may, with the concurrence of the Treasury, abolish or 
 reduce the salary of any officer, and increase the salary of existing 
 officers whose duties are increased by reason of the Act, 144. 
 
 Lord Chancellor, not to be liable to serve as Vacation Judge, 236. 
 
 Lord Chancellor, oaths to be taken by, 207. 
 
 Lord Chancellor to fix percentage of estates of lunatics, 251. 
 
 Lord Chancellor, not to be deemed a " permanent Judge of the High 
 Court," 197. 
 
 Lord Chancellor to be one of the ex-officio Judges of the Court of Appeal, 
 198. 
 
 Lord Chancellor to be one of the first Judges of the High Court of 
 Justice, 6. 
 
 Lord Chancellor to appoint Commissioners to administer oaths, and all 
 officers attached to the Supreme Court, 153. 
 
 Lord Chancellor, with sanction of the Treasury, to fix table of fees for 
 District Registrars, 126. 
 
 Lord Chancellor Selborne introduced the Supreme Court of Judi- 
 cature Act, 1873-4. See Officer, " salary." 
 
 Lord Chief Baron, pension and salary of, 15, 16. 
 
 Lord Chief Baron to be one of the ex-officio Judges of the Court of 
 Appeal, 199. 
 
 Lord Chief Baron to have a secretary, a principal clerk, and a junior 
 clerk, 149. 
 
 Lord Chief Baron to be one of the first Judges of the High Court, 207. 
 
 Lord Chief Baron, distinction of the office of, may be abolished under 
 certain circumstances, 81.
 
 INDEX. 697 
 
 Lord Chief Justice of England to be President of the Queen's Bench 
 
 Division, and of the High Court in absence of Lord Chancellor, 6. 
 Lord Chief Justice of England, pension and salary of, 15, 16. 
 Lord Chief Justice of England to be one of the ex officio Judges of the 
 
 Appeal Court, 199. 
 Lord Chief Justice of England to be one of the first Judges of the High 
 
 Court, 6. 
 Lord Chief Justice of England to have a secretary, a principal clerk and 
 
 a junior clerk, 149, 
 
 Lord Chief Justice of England, concurrence of, necessary, 138. 
 Lord Chief Justice of England, distinction of the office of, may be 
 
 abolished under certain circumstances, 81. 
 Lord Chief Justice of the Common Pleas to be President of the Common 
 
 Pleas Division, 76. 
 
 Lord Chief Justice of the Common Pleas, pension and salary of, 15, 16. 
 Lord Chief Justice of the Common Pleas to be one of the ex officio Judges 
 
 of the Court of Appeal, 199. 
 Lord Chief Justice of the Common Pleas to have a secretary, a principal 
 
 clerk and a junior clerk, 149. 
 Lord Chief Justice of the Common Pleas to be one of the first Judges of 
 
 the High Court, 207. 
 Lords Justices, jurisdiction in lunacy to be exercised by the existing, and 
 
 afterwards by two Judges of the Court of Appeal, under Sign Manual, 
 
 211. 
 Lords Justices to be ordinary Judges of the Court of Appeal, and sit on 
 
 the Judicial Committee, 199. 
 Lord Treasurer not in future to exercise judicial functions as a Judge of 
 
 the Court of Exchequer, 166. 
 Lunacy, jurisdiction in appeals in, see "Judicial Committee of the Privy 
 
 Council." 
 Lunatic, allegations of fact in a pleading, not being a petition or summons, 
 
 cannot be taken as admitted against a, 364. 
 Lunatic may defend by guardian ad litem, and sue by committee or next 
 
 friend, 353. See " Visitors of Lunatics," " Service." 
 
 Malice, when alleged in pleadings, circumstances not to be set out, 
 368. 
 
 Mandamus may be granted at any time with or without conditions, 42, 
 58, 59, 501. 
 
 Mandamus, high prerogative writ of, what Court is to issue, discussed, 59, 
 105. 
 
 Marriage of female taking place pendente lite, the Court may order hus- 
 band to be made a party to the action or served with notice, 496. Sec 
 " Abatement." 
 
 Married women to sue by a next friend, but may, by leave of the Court 
 sue without a next friend on giving security, 340. See " Husband and 
 Wife," "Special Case," "Acknowledgments," "Marriage," "Abate- 
 ment." 
 
 Marshal, Judges' , office of, not interfered with, 144. 
 
 Marshal of the Court of Admiralty, writ in Admiralty action in rtm to be 
 served by the, 308. 
 
 Master, books kept by, 290, 291. 
 
 Master, proper officer to enter judgments, 463. 
 
 Master, jurisdiction of, 510. 
 
 46
 
 698 INDEX. 
 
 Master may refer matter for the decision of the Judge, 512. 
 
 Master, appeal lies from decision of, to Judge, 512. 
 
 Master, District Registrar has same jurisdiction as, 426. See " Stay of 
 
 Proceedings." 
 
 Master of the Rolls, pension and salary of, 15, 16. 
 Master of the Rolls to be one of the ex officio Judges of the Court of Appeal, 
 
 199. 
 Master of the Rolls to be one of the first Judges of the High Court of 
 
 Justice, 6. 
 Master of the Rolls to continue to have the appointment of officers of the 
 
 Chancery Division formerly appointed by him, 157. 
 Master of the Rolls to have a secretary, a principal clerk, and a junior 
 
 clerk, 149. 
 
 Master of the Rolls, distinction of the office of, may be abolished under 
 certain circumstances, 81. See " Solicitors," " Jurisdiction," " Extra- 
 ordinary Duties." 
 
 Masters, office of, may be abolished on vacancy, 143. 
 Masters transferred to the Supreme Court, 141. 
 Masters, duties of the, to be denned by Rules of Court, 144. 
 " Matter," interpretation of, 170. 
 Memorandum of Appearance. See " Appearance." 
 Merger, by operation of law only, to be no, 40. 
 Mesne profits, claim for, may be joined with ejectment, 350. 
 Mesne profits, claim for, when indorsed on writ, and defendant makes 
 default in appearance or pleading, the plaintiff may enter judgment 
 against the defaulting defendant, 329, 400. See " Recovery of Lands," 
 " Joinder." 
 
 Messengers transferred to the Supreme Court, 141. 
 Michaelmas sittings, commencement and end of, 533. 
 Middlesex, venue to be laid in, 431. 
 
 Middlesex, causes may be assigned from Assizes to be tried in, 72. 
 Middlesex, sittings in, to be continuous, 74. See " London." 
 Misdirection. See " New Trial." 
 Misjoinder. See " Parties." 
 Money claims, 546, 549. 
 
 Months, not expressed to be lunar, to mean calendar months, 518. 
 Mortgagee, form of general indorsement by, 545, 546. See " Costs." 
 Mortgages. See " Redemption" and " Foreclosure." 
 Mortgagor, form of general indorsement by, 546. 
 Mortgagor may sue for possession in his own name only, 40. 
 Motion, applications authorised by Rules to be made to the Court or a 
 
 Judge, to be by motion if made to a Divisional Court, 506. 
 Motion, applications under Order XL. to be made by, 462. 
 Motion to be by notice to the parties unless order made ex parte absolute 
 
 in the first instance, 507. 
 
 Motion for a rule to show cause need not be on notice, 507- 
 Motion may be dismissed if all parties not served, 508. 
 Motion for judgment, 436. 
 
 Motion for new trial, 453. See "Evidence," "Affidavit," "Hearing,"' 
 " New Trial," " Judgment." 
 
 Necessaries for ship, form of indorsement in Admiralty action for, 555. 
 Necessaries for ship, forms of statement of claim, defence, and reply in 
 Admiralty action for, 604, 605.
 
 INDEX. 699 
 
 Negligenct, forms of statement of claim, defence, and reply in action for , 
 606, 607. 
 
 New assignment not to be necessary or used, 362. See " Amendment." 
 
 New trial in cause tried in Queen's Bench, Common Pleas, and Exchequer 
 Divisions, 453. 
 
 New trial, as to part of the action, Court may give final judgment as to 
 that part, 454. 
 
 New trial not to be granted on the ground of misdirection on improper 
 admission or rejection of evidence, unless wrong or miscarriage occa- 
 sioned by it, 454. 
 
 New trial of any question may be ordered without interfering with de- 
 cision on other questions, 455. 
 
 New trial, application for ,to be made to a Divisional Court, calling on 
 opposite party to show cause in eight days, 453. See "Motion," 
 " Stay of Proceedings." 
 
 Next friend. See " Infant," " Lunatic," " Married Women." 
 
 Non-compliance with Rules may be ground for setting aside proceedings, 
 but not to render proceedings void, 531. 
 
 Non-joinder. See "Parties." 
 
 Nonsuit, " dismissing the action" same as, 441. 
 
 Nonsuit, judgment of, to have the effect of a judgment upon the merits, 
 465. 
 
 Nonsuit may be set aside on the ground of mistake, surprise, or accident, 
 465. See"" Costs." 
 
 Notes, shorthand writers', 528. 
 
 Notes, verified, 528. 
 
 Not guilty by statute, plea of, to have same effect as heretofore, 363. 
 
 Not guilty by statute, plea of, not to be joined with any other defence 
 except by leave of the Court, 364. 
 
 Notice in lieu of statement of claim, form of, 560. 
 
 Notice of Admiralty action for wages against foreign vessel to be given to 
 Consul, but Judge may waive service, 297, 298. 
 
 Notice may be alleged in pleadings simply, unless precise terms are 
 material, 369. 
 
 Notice may be given to produce any document referred to in the plead- 
 ings, 412. 
 
 Notice of appearance elsewhere than where writ issued, 317. 
 
 Notice of claim, person served with, to be deemed a party, 30. 
 
 Notice of cross-examination to be served, 451. 
 
 Notice of defendant's claim to contribution to state nature and grcmnd 
 of claim, and to be sealed with seal with which writs are sealed, 347. 
 
 Notice of entering demurrer to be given on the same day on which en- 
 tered, 394. 
 
 Notice of limited defence to an action for the recovery of land to be served 
 within four days after appearance, 323, 324. 
 
 Notice of removal of action from District Registry, 438. 
 
 Notice to be given of application by plaintiff to appoint guardian ad liteiii 
 for defendant, 323. 
 
 Notice to admit, inspect and produce documents, forms of, 563, 564, 565. 
 
 Notice to sheriff of renewal of writ of execution, 475. 
 
 Notice to third parties, by defendant, form of, 558, 559. 
 
 Notice to third parties when before trial it appears that questions should 
 be determined between the plaintiff, or defendant, and third parties, 
 Court may direct, 348.
 
 700 INDEX. 
 
 Notice of writ in lieu of service of writ, form of, 542. 
 
 Notice of writ in lieu of service of writ, application for leave to give to be 
 
 supported by affidavit, 310. 
 
 Notice of writ in lieu of service of writ, Court may make order for substi- 
 tution of, 303. 
 Notice of motion, 521. 
 
 Notice of motion for leave to issue attachment, 482. 
 Notice of motion may be served by plaintiff or defendant within time 
 
 limited for appearance, 509. 
 
 Notice of motion may by leave be served with the writ, 510. 
 Notice of motion to be served two clear days before hearing, 508. 
 
 See " Appeal." 
 
 Notice of motion for judgment to state grounds and the relief sought, 467. 
 Notice of sale and of proceeding in Admiralty action in rem, 330, 331, 
 
 332. 
 
 Notice of trial, ten days to be given, 431. 
 Notice of trial, form of, 436, 566. 
 Notice of trial elsewhere than in London or Middlesex, to be deemed to be 
 
 for the first day of the then next Assizes, 438. 
 Notice of trial for London or Middlesex, not to operate for any particular 
 
 sittings, 438. 
 Notice of trial may be given by defendant if plaintiff fails to do so within 
 
 time limited, 433. 
 
 Notice of trial may be given by the plaintiff with his reply, 432. 
 Notice of trial not to be countermanded except by leave, 438. 
 Notice of trial, short, to be a four days' notice, 437. 
 Notice of trial to state whether the action or only issues therein are to be 
 
 tried, 436. 
 Notice of trial to be given before entering action for trial, 437. See 
 
 "Appeal," " Admiralty action in rem," " Document," " Production," 
 
 "Admission." 
 
 " Oath," interpretation of, 170. 
 
 Oath to be taken by Judges, 207, 208, 209. See " Lord Chancellor," 
 
 " District Registrar." 
 
 Occupation of plaintiff suing in person to be indorsed on writ, 290. 
 Officers attached to the Courts of Chancery, Queen's Bench, Common 
 
 Pleas, and Exchequer, Probate, Divorce and Admiralty, to be officers 
 
 of the corresponding Divisions, 532. 
 
 Officers, duties of, may be regulated by Additional Rules, 233. 
 Officers of Divisions, not appointed by the Lord Chancellor or the Master 
 
 of the Rolls, to be appointed by the President of each Division, 153. 
 Officers of the Court of Chancery to perform same duties for the Supreme 
 
 Court as formerly for the Court of Chancery, 164. 
 
 Officers of Supreme Court, reasons must be assigned for removing, and ap- 
 proval of Chancellor necessary, 153. 
 Officers on Circuit and of the Court of Common Pleas at Lancaster, and 
 
 of Court of Pleas at Durham to perform the same duties as here- 
 tofore, 146, 162. 
 Officers of the Court to make return of fees for the purposes of the annual 
 
 account, 258. 
 
 Officers of the Supreme Court, Solicitors and Referees to be deemed, 157. 
 Officers of the Judges to continue attached to same Judges, 153. 
 Officers other than personal officers of the Judges, to be deemed permanent
 
 INDEX. 701 
 
 Civil Servants of the Court, 150, 155. 
 
 Officers may be removed by the person having the right of appoint- 
 ment, 154. 
 
 Officers, pensions and salaries of, 155. 
 
 Officers, such as may be necessary, to be attached to the several Courts, 
 153. See "Lord Chancellor," "Doubts," "Master of the Eolls," 
 " Duchy," " Rank," "Tenure," " Lord Chancellor." 
 
 Offices, days on which closed, 535. 
 
 Order, may be enforced like Judgment, 477. 
 
 Order, as to place of trial, may be varied by a Divisional Court, 431. 
 
 " Order," interpretation of, 170. 
 
 Order, perfected before the commencement of the Act, may be executed, 
 amended, or discharged by the High Court and Court of Appeal, 26. 
 
 Order not perfected before the commencement of the Act, to be perfected 
 after the commencement of it, 26. 
 
 Order to carry on proceedings may be made ex parte on allegation of 
 change or transmission of interest, 497. 
 
 Order to carry on proceedings to be served on continuing parties, and on 
 new parties, 498. 
 
 Order to carry on proceedings, person not under disability served with 
 may apply within twelve days of service to discharge, 498. 
 
 Order to carry on proceedings to have no effect against persons under 
 disability other than coverture until twelve days after guardian ap- 
 pointed, 498. 
 
 Order to show cause not to be granted unless application expressly 
 authorised by the Rules, 507. See " Vacation Judge," " Special Case," 
 "New Trial." 
 
 Order in Council to be laid before Parliament, 243, 249. 
 
 Order in Council equivalent to Act of Parliament, 242. 
 
 Order in Council may be annulled on Address by either House of Par- 
 liament within forty days, but meanwhile valid, 249. 
 
 Order in Council, Divisions of the High Court may be altered by, 80. 
 
 Order in Council, General Rules as to ecclesiastical causes may be made 
 by, 24. 
 
 Order in Council, Act relating to County Court Appeals may be applied 
 by to any other inferior Court of Record, 230. 
 
 Order in Council, matters which may be regulated by, 242. 
 
 Order in Council may be altered or amended by another Order in Council, 
 242. 
 
 Order in Council, first, of the 12th August, 1875, 635-663. 
 
 Order in Council, second, of the 12th August, 1875, 664,-667. 
 
 Order in Council, Additional Rules under, to be made on the recommen- 
 dation of certain of the Judges, 232. See " Assizes," " Inferior Courts." 
 
 Owner, part, form of indorsement in Admiralty action by, 555. 
 
 Paper, description of, on which writs of summons and other proceedings 
 
 to be printed, 294. 
 
 Parliament. See " Order in Council." 
 Particulars of demand. See " Indorsement, Special." 
 Parties, change of, by marriage, death, or bankruptcy, 494. 
 Parties may be struck out by the Court, 344. 
 Parties interested in defendant's counter claim to be added to title as if 
 
 in a cross action, 379. 
 Parties beneficially interested may be directed to be added or substituted
 
 702 INDEX. 
 
 at any stage of the proceedings, and if added as defendants to lie 
 
 served, 177, 339, 344. 
 Parties, rules in Chancery under 15 & 16 Viet., c. 86, s. 42, as to, to be 
 
 rules of the High Court, 342. See "Defendants," "Plaintiffs," 
 
 " Joinder." 
 Parties having the same interest, representation of by one or more of 
 
 tnem, 341. 
 Parties added by the Court, proceedings against to be deemed to begin 
 
 from service of summons or notice, 244. 
 Parties, misjoinder of, not to defeat action, 344. 
 Parties, non-joinder of, action not to be defeated by, 344. 
 Partition of real estates assigned to the Chancery Division, 84. 
 Partners suing out writ, 300. 
 
 Partners may sue or be sued in the name of their firm, 306. 
 Partners, names of, where one or more persons sue or are sued in the name 
 
 of a firm, may be directed to bo furnished on oath, 341. 
 Partners to declare on demand the names and residences of members of 
 
 the firm, 300. 
 
 Partners, writ may be served on one or more of the, 306. 
 Partners sued in name of firm to appear individually, 319. 
 Partnership action, form of general indorsement in, 545. 
 Partnership, denial of alleged constitution of to be made specifically, 361. 
 Partnership, dissolution of, and taking partnership accounts, assigned to 
 
 the Chancery Division, 84. 
 " Party," interpretation of, 170. 
 
 Party, person served with notice of claim to be deemed a, 30. 
 Party to a counter claim may apply for an order that it be excluded, 380. 
 
 See " Counterclaim." 
 Patronage incident to the office of existing Judges to be exercised by 
 
 them, 14, 156. 
 Patronage after death, resignation, or removal of existing Judges, to 
 
 be exercised as by Royal Sign Manual shall be directed, 156. 
 Patronage vested in Judges going Circuit, not to be affected by the Act, 
 
 164. See " Great Seal." 
 Paymaster-General, power of the Lord Chancellor to make Rules with 
 
 respect to, 248. 
 Payment by garnishee to be a valid discharge to him, as against the 
 
 judgment debtor, 487. 
 
 Payment into Court, form of notice of, 560, 561. 
 Payment into Court of the amount in dispute, may be directed by an 
 
 interim order where amount claimed by defendant in respect of a lien, 505. 
 Payment into Court in an action for debt or pecuniary demand, may be 
 
 made by defendant at the time of delivering his defence, or afterwards 
 
 by leave, 405. 
 Payment into Court, defendant before defence to give notice of to the 
 
 plaintiff, 406. 
 Payment into Court of money in satisfaction before defence may, within 
 
 four days after notice, be accepted by the plaintiff in satisfaction, 405. 
 Payment into Court of money in satisfaction first stated in defence, may, 
 
 before reply, be accepted by the plaintiff, 405. 
 
 Payment out of Court to the plaintiff or to his solicitor on his authority, 404. 
 Payment out of Court, no affidavit necessary to verify the plaintiff's sig- 
 nature to written authority for, unless required by the officer of the 
 
 Court, 404.
 
 INDEX. 703 
 
 Pension, personal officers of Judges not to be entitled to, 155. 
 
 " Pension," interpretation of, 170. 
 
 Pension, fifteen years' service as Judge to entitle to, 16. 
 
 Pensions of existing Judges to be calculated on present service and service 
 
 in High Court or Court of Appeal, 12. 
 
 Pensions of existing officers not to be altered by Rules of Court, 
 Pensions of future Judges, 16. 
 Pensions of Judges, to be charged on consolidated fund and to grow due 
 
 from, day to day, 17. 
 Pensions for Chamber Clerks, Treasury may sanction, 267 270. Set 
 
 " Judges," " L. C. Baron," " L. C. Justice," " L. C. Justice C. P.," 
 
 "M. R.," "Officers," "Appeal." 
 
 Perishable goods may be ordered to be sold at once, 502. 
 " Person," interpretation of, 539. 
 Personal representative of party to an action dying pendente lite may be 
 
 made a party, or served with notice, 496. 
 Petition. See " Appeal " and " Evidence." 
 " Petitioner," interpretation of, 169. 
 Petty sessions, appeals from, to be heard by Divisional Courts of High 
 
 Court, 103 106. See "Quarter Sessions." 
 " Plaintiff," interpretation of, 169. 
 Plaintiff may, after delivering his confession of defence, sign judgment 
 
 for his costs up to the time of the pleading of the defence, 373. 
 Plaintiff may assign his cause to any Division, 223. 
 
 Plaintiff may be empowered to sign judgment where writ specially in- 
 dorsed, on defendant showing cause, 332. 
 Plaintiff may mark action in the Chancery Division with the name of 
 
 such Judge thereof as he may think fit, 293. 
 Plaintiff may obtain leave to discontinue action, 381. 
 Plaintiff renewing writ to deliver a memorandum to the proper officer, 
 
 301. 
 
 Plaintiff suing in representative capacity, 286. 
 
 Plaintiff to amend writ and serve it on person added as defendant, 345. 
 Plaintiff to prepare writ of summons, 293. 
 Plaintiffs, all persons, whether jointly, severally or alternatively liable, 
 
 may be joined as, 336. 
 Plaintiffs, one or more, may recover judgment without amendment, 336. 
 
 See " Interrogatories," " Acceptance," ' Notice," " Address," " Joinder," 
 
 "Action," "Costs," "Disclosure," "Partners," "Solicitor." 
 Plea in abatement abolished, 362. 
 
 Plea of payment into Court, 405. See " Not Guilty by Statute." 
 Plead, leave to, after demurrer overruled, may be reserved, 393. 
 Plead, leave to, as well as demur to the matter demurred to, may be 
 
 obtained from the Court, 389. 
 Plead, leave to, to amended pleading, 389. 
 Pleading to be in paragraphs, numbered consecutively, 357. 
 "Pleading," interpretation of, 170. 
 Pleading, allegations of fact in a, not being a petition or summons, if not 
 
 denied or stated to be not admitted, to be taken as admitted, 364. 
 Pleading already delivered to the proper officer need not be re-delivered 
 
 on entering a second judgment in the same action, 462. 
 Pleading, amendment of, at any stage may be ordered, and date to be 
 
 marked, 386, 391. 
 Pleading, close of, 385, 402.
 
 704 INDEX. 
 
 Pleading, each party to any, not being a petition or summons, must allege 
 
 all facts, not in previous pleadings, which he intends to rely on, 364. 
 Pleading (if any) subsequent to reply, to he delivered within four daya 
 
 after the delivery of the previous pleading, 385. 
 Pleading to be delivered to party in person, or to solicitor, but, if no 
 
 appearance, to be delivered by being filed, 358, 359. 
 Pleading puis darrein continuance, 372. 
 Pleading may be regulated by Additional Rules, 233. 
 Pleading, "negative pregnant" prohibited, 367. 
 Pleading, literal traverse in, prohibited, 367. 
 Pleading not being a petition or summons, shall not, except by way of 
 
 amendment, raise new ground of claim, or allege facts inconsistent with 
 
 previous pleadings of same party, 365. 
 
 Pleading not to be amended, except by order, while demurrer pending, 394. 
 Pleading subsequent to reply, other than joinder of issue, not to be 
 
 pleaded without leave, 384. 
 Pleading, to be marked with date and reference to record and Division or 
 
 Judge, and with its description, 359. 
 
 Pleading, to be reprinted where amendments are numerous, 389. 
 Pleading, under three folios, may be written, other pleadings not being a 
 
 petition or summons, to be printed, 358. 
 Pleadings statements, to be as brief as possible, 355. See " Malice," 
 
 "Fraudulent Intention," "Copy," "Documents," " Scienter," " Con- 
 dition of Mind," " Implied Contract," " Notice," " Counsel," " Presump- 
 tion of Law," " Evidence." 
 
 Portions, the raising of, assigned to the Chancery Division, 84. 
 Portions, the raising of, form of general indorsement for, in action in 
 
 Chancery Division, 546. 
 Possession, form of indorsement in Admiralty action of, 554, 585. See 
 
 " Writ of Possession," " Decree." 
 Possession, forms of statement of claim, defence, reply and rejoinder, in 
 
 Admiralty action of, 607-609. 
 
 Practice and procedure, may be regulated by Additional Rules, 233. 
 Practice in criminal causes and in Crown cases reserved to be as before 
 
 the Act, except as altered by Act or Rules, 236. 
 Practice, former, remains in force, except where other provisions made by 
 
 the Rules, 271, 272. 
 " Practice," Treatises on, of Chitty, Archbold, Coote and Tristram, Lush, 
 
 Daniel, Morgan, Chute, Browne, "Williams and Bruce, cited passim. 
 Practice, under the Common Law Procedure Acts and Regulce generates, 
 
 272. 
 
 Precedence, of Judges of Court of Appeal and of High Court, 12,210. 
 Precedence, successors of Common Law Chiefs and M.R. to have the 
 
 same, 6. 
 
 Pracipe for writ of attachment, form of, 625. 
 Pratcipe for writ of eleait, form of, 623. 
 PrcKcipe for writ of delivery, form of, 625. 
 Prceeipe for writ oiji.fa. form of, 623. 
 Pracipe for writ ofjl.fa. de bonis ecclesiasticit, form of, 624. 
 Pracipe for writ of possession, form of, 625. 
 Prcecipe for writ of sequestration, form of, 625. 
 
 Prcecipe for \rrit of sequestrari facias de bonis ccclesiasticis, form of, 624. 
 PrcEcipe for writ of venditioniexponas, 624. 
 Prcecipe, no writ of Execution to issue without filing, signed by solicitor, 
 
 or by party issuing it, 471.
 
 INDEX. 705 
 
 Pr&cipc, filing of copy of writ of summons substituted for filing of, 295. 
 
 Preliminary Act, to be filed in actions for collision, 272. 
 
 Preliminary Act, may be opened by order of the Court with, consent of 
 
 both solicitors, 371. 
 
 Preservation of property, order for interim, may be made, 501. 
 President of Divisional Court, the senior Judge present, to be, 96. See 
 
 "Lord Chancellor," "L.C.J.," "L.C. J.C.P.," "L.C.B.," "M.R." 
 Presumption of law need not be alleged in pleadings unless specifically 
 
 denied, 370. 
 
 Printing, Additional Rules, as to Orders I. to Y. inclusive, 452, 636, 641. 
 Printing written depositions and affidavits, 636, 637. 
 Printing special case, 421, 637. 
 Printing pleadings, 358. 
 Printing of forms, 517 (n). 
 Printing of writs of summons, 293, 294. 
 
 Printing, description of, prescribed, 516. See " Pleading," "Writ." 
 Privy Council, see "Judicial Committee." 
 Probate, all matters pending in the Court of, or within the exclusive 
 
 cognizance of the Court of, assigned to the Probate, Divorce, and 
 
 Admiralty Division, 86. 
 
 Probate, the Court of, united to Supreme Court, 3. 
 Probate, Judge of the Court of, to be one of the first Judges of the High 
 
 Court of Justice, 6. 
 Probate, rules of the Court of, as to parties and otherwise, to remain in 
 
 force, 235, 343. 
 
 Probate action, forms of indorsements in, 553, 554. 
 Probate action, forms of statements of claim, defence, and reply in, 602, 
 
 610, 611. 
 
 " Probate action," interpretation of, 532. 
 Probate action, issue of writ in, to be preceded by filing of affidavit, 
 
 296. 
 
 Probate action, any person may intervene and appear in, 320. 
 Probate action, defendant failing to appear in, plaintiff may file an 
 
 affidavit of service and proceed as if appearance entered, 330. 
 Probate action, may proceed, notwithstanding defendant fails to plead or 
 
 demur, 401. 
 Probate action, plaintiff disputing the interest of the defendant, to al 
 
 same in statement of claim, 362. 
 Probate action, statement of claim in, to be delivered within six weeks 
 
 after appearance or default of appearance, 373. 
 Probate action, where defendant has appeared in, the plaintiff shall not 
 
 be compelled to deliver his statement of claim until eight days after the 
 
 defendant has filed his affidavit of scripts, 373. 
 Probate Court, District Registrar of, may be appointed District Registrar 
 
 of the High Court, 122. 
 Probate, Divorce and Admiralty Division, action transferred to, to be 
 
 assigned to one of the Judges, 500. 
 Probate, Divorce and Admiralty Division, Judges of, 77. 
 Probate, Divorce and Admiralty Division, Judges of, to take part in Assizes, 
 
 217. 
 Probate, Divorce and Admiralty Division, all matters pending in or within 
 
 the exclusive cognizance of the Courts of Probate, Divorce, and Admi- 
 ralty, assigned to the, 86. 
 Probate, Divorce, and Admiralty Division, any cause may, at the request
 
 706 INDEX. 
 
 of the President of the Division, be heard by any other Judge of the 
 
 High Court, 102. 
 Probate, Divorce and Admiralty Division, business of, to be disposed of 
 
 in the first instance by one Judge, 100. 
 Probate, Divorce and Admiralty Division, causes are not to be commenced 
 
 in the, unless the parties would formerly have been entitled to go to 
 
 one of the Courts comprised in this Division, 225. 
 Probate, Divorce and Admiralty Division, Divisional Courts may be held 
 
 to transact the business of, 102. See " costs," " defendants," " officers," 
 
 "jurisdiction," "suits." 
 
 Procedure in force before the Act, to remain in force, unless incon- 
 sistent, 240, 271, 272. 
 Procedure, to be considered at the Council of Judges, 138. See " Practice," 
 
 " Council." 
 Proceedings in District Registry, to be entered in the book there, 
 
 423. 
 Proceedings, against parties added by the Court, to be deemed to have 
 
 begun from the service of summons or notice, 344. 
 Proceedings, before Courts of first instance, and on appeal, pending at the 
 
 commencement of the Act, to be continued before the High Court and 
 
 Court of Appeal respectively, 25. 
 
 Proceedings, had under order appealed from, not to be invalidated ex- 
 cept so far as the Court shall direct, 528. 
 Proceedings, may be prescribed by Rules of Court, to be recorded in 
 
 District Registry, 127. 
 
 Proceedings, not in an action or suit, e.ff.,~by Petition of Right to be com- 
 menced as formerly, 277. See " Error," " Divorce," " Inferior Courts," 
 
 " Stay of Proceedings," " Order in Council." 
 Proctors. See " Solicitors." 
 Production of documents, on oath, 410. 
 Production of documents to District Registrar, Court may order, in 
 
 matter pending in the High Court, 129. 
 Prolixity in forms may be visited with costs, 278, 355. 
 Promissory note, action upon, 280. 
 Promissory note, all or any of the persons severally, or jointly and 
 
 severally liable, may be joined as parties to an action on, 338. 
 Promissory note forms of statement of claim, defence and reply, in 
 
 action on, 609. See " Bill of Exchange." 
 Proper officer, entry of judgment by, 464. 
 Proper officer, interpretation of, 539. 
 
 Proper officer, to give a receipt for money paid into Court, 404. 
 Proper officer, to have notice of an action being assigned to any Division 
 
 of the High Court, 292. 
 
 Proper officer, to impress seal on concurrent writs, 299. 
 Proper officer, to keep seal for renewal of writs, 30 1 . 
 Proper officer, to transmit record, when cause transferred from inferior 
 
 Court to High Court, 162. 
 
 Proper officer, production of certificate of judgment to, 444, 464. 
 Prothonotaries transferred to Supreme Court, 141. 
 Prothonotaries and District Prothonotaries of the Court of Common 
 
 Pleas at Lancaster, and of the Court of Pleas at Durham, salaries and 
 
 remuneration of, 146, 254. 
 Prothonotaries and District Prothonotaries of the Court of Common 
 
 Pleas at Lancaster and of the Court of Pleas at Durham to perform
 
 INDEX. 707 
 
 tho like duties and exercise the like powers as at the commencement 
 of the Act, 146. 
 
 Prothonotaries or District Prothonotaries of Local Court, whose juris- 
 diction is transferred, may be appointed District Registrars of the 
 High Court, 122. 
 
 Qualification of Judges of High Court of Justice and of Appeal Court, 
 11. 
 
 Qualification of official Eeferees to he determined by the Lord Chan- 
 cellor, with the concurrence of the Presidents of Divisions of the 
 High Court or of a majority of them, 152. 
 
 Quarter sessions, appeals from, to be heard by a Divisional Court of 
 the High Court, 183. See "Petty Sessions." 
 
 Queen's Bench, Court of, united to Supreme Court, 3. 
 
 Queen's Bench, payment of 40 a year to second Judge of Court of, to 
 cease when the present holder ceases to occupy that office 6. 
 
 Queen's Bench, Puisne Judges of Court of, to be amongst the first Judges 
 of the High Court of Justice, 6. 
 
 Queen's Bench, original jurisdiction of , discussed, 59, 105. See " Officers," 
 "Jurisdiction," " Lord Chief Justice." 
 
 Queen's Bench Division, Judges of, 76. 
 
 Queen's Bench Division, all matters, civil and criminal, pending in Court 
 of Queen's Bench, or which would have been within the exclusive cog- 
 nisance of that Court in the exercise of its original jurisdiction, assigned 
 to, 84. 
 
 Queen's Bench Division, proceedings on tho Crown side of, not affected 
 by the Rules of Court, 538. 
 
 Queen's Coroner, payment of 10 a year to him to cease when the present 
 holder ceases to occupy that office, 259. 
 
 Queen's Counsel may be included in Commission of Assize, 90. 
 
 Queen's Counsel of County Palatine of Lancaster to have the same pre- 
 cedence in the county as at the commencement of the Act, 146. 
 
 Queen's Remembrancer transferred to the Supreme Court, 141. 
 
 Questions of fact or of law or partly of fact and partly of law may be 
 assigned from Assizes to be tried in Middlesex or London, 71. 
 
 Questions, different, may be tried in different ways, 435. See " Special 
 Case," " Referee." 
 
 Rank of existing Judges not to be affected, 12. 
 
 Rank of existing officers not to be altered by Rules of Court, 151. 
 
 Receipt of the Exchequer. See " Exchequer." 
 
 Receiver, may be appointed at any time, with or without conditions, 
 42, 58, 503. 
 
 Record, to be transmitted to High Court when cause transferred from 
 inferior Court, 162. 
 
 Record and Writ Clerks. See Clerks of Records and Writs. 
 
 Recovery of Land, forms of statement of claim, defence and counter claim 
 in actions for. , 
 
 Recovery of Land, form of judgment in default of appearance or plead- 
 ing, in actions for, 612, 613, 614, 615. 
 
 Recovery of Land, in action for, the defendant in possession need not 
 plead his title unless dependent on an equitable estate, or he seeks 
 equitable relief; it is sufficient to state the fact of possession, 363.
 
 708 INDEX. 
 
 Recovery of Land, action for, any person may limit his defence to part of 
 land in, 322. 
 
 Recovery of Land, action for, not to be joined with any other cause of 
 action, except for mesne profits, arrears of rent, or breach of contract, 
 350. 
 
 Recovery of Land, action for, person appearing to defend, when in posses- 
 sion only by his tenant, to state that he appears as landlord, 321, 322. 
 
 Recovery of Land, action for, person not named in the writ of summons 
 may obtain leave to defend on filing an affidavit, showing that he is in 
 possession, 321. 
 
 Recovery of Land, action for, in default of appearance or pleading, 
 plaintiff may enter final judgment for portion not defended, and proceed 
 for remainder and mesne profits, 320,400. See "Defence," "Mort- 
 gagee," " Mortgagor," " Possession," " Statement of Claim." 
 
 Rectification of deeds. See " Deeds." 
 
 Redemption of mortgages assigned to Chancery Division, 84. 
 
 Referee, power and conduct of trial by, to be prescribed by the Judge, 
 subject to Rules of Court, 121. 
 
 Referee, not to commit to prison or enforce order by attachment, 447. 
 
 Referee, explanation or reasons may be required from by court, 448. 
 
 Referee, to conduct trial and to take evidence as at trials before the Court 
 447. 
 
 Referee, report of, may be adopted wholly or in part, and be enforced as a 
 judgment, 117. 
 
 Referee's report, unless set aside, to be equivalent to the verdict of a 
 jury, 121. 
 
 Referee's Court, not to be a public Court of Justice, or a Court of Record, 
 but subject thereto, Referee to have power of Judge at trial, 447. 
 
 Referee, official or special, Court may refer question of fact to be tried 
 before, 120. 
 
 Referee may have an inspection or view, 446. 
 
 Referee may submit questions for the decision of the Court, or may state 
 facts specially, 447. 
 
 Referee, proceedings before, may be held at the most convenient place, 
 446. 
 
 Referees, their number, qualifications, and tenure of office to be deter- 
 mined by the Lord Chancellor, with the concurrence of the Presidents 
 of the Divisions of the High Court, 152. 
 
 Referees, Court may refer questions of fact to be tried before, 117. 
 
 Referees, to perform duties in London or country, and travelling expenses 
 to be paid by the Treasury, 152. 
 
 Referee, special, to have same powers and duties as official referee, 120. 
 
 Referee, special, remuneration of. See" Officers," "Judgment," "Arbitra- 
 tion," 118. 
 
 Reference to Master by Judge, 512. 
 
 Reference back to the Master by Judge, 512. 
 
 Reference to a Judge from a District Registrar in the Chancery Division, 
 to be to Judge to whom action is assigned, 428. 
 
 Reference to District Registrar, 129. 
 
 Registrar of Her Majesty in Ecclesiastical and Admiralty causes to be 
 deemed an officer attached to the Supreme Court, 216, 217. 
 
 Registrar of inferior Court of Record, or of local Court, whose jurisdiction 
 is transferred, or of County Court, eligible to be District Registrar, 122, 
 127. See " Record," " Solicitors "
 
 INDEX. 709 
 
 Kegistrar of attorneys and solicitors, to be registrar of solicitors, 229. 
 
 Registrar of Privy Council, attendance of, to be regulated by Lord Chan- 
 cellor, with concurrence of the Lord President, 117. 
 
 Registrars, joint, of District Registries, appointed for Liverpool, Birming- 
 ham, Bristol, and Sheffield, 227- 
 
 Registrars in Chancery to retain their right of succession, 143. 
 
 Registrars transferred to the Supreme Court, 143. 
 
 Re-hearing. See " Appeal." 
 
 Rejoinder. See " Equipment," " Possession," " Charter Party." 
 
 Renewal. See " Writ." 
 
 Repeal of enactments specified in second Schedule to Act of 1875, and of 
 all enactments inconsistent with Principal Act or Amending Act, 265. 
 
 Replevin form of indorsement in claim for, 550. 
 
 Reply, plaintiff may join issue upon the defence in, 366. 
 
 Reply not sufficient which denies generally the facts stated in defence or 
 by way of counter claim, 365. 
 
 Reply to be delivered within three weeks after the defence, or the last 
 of the defences, 383. 
 
 Reply, pleadings subsequent to, 383. 
 
 Reply, further, may bo delivered, within eight days after now ground of 
 defence has arisen, setting forth ground of defence to set-off or counter 
 claim arisen after reply, 373. See " Charter-party," " Equipment," 
 " False Imprisonment," " Fraud," "Necessaries," "Negligence," "Pos- 
 session," "Probate," "Recovery of Land," "Salvage," "Trespass,'' 
 "Promissory Note," "Administration," -'Collision," "Damages," 
 " Bottomry," " Agent," " Bill of Exchange," " Foreclosure," " Probate 
 Action," " Statement of Reply," " Counter Claim." 
 
 Representative capacity of plaintiff or defendant must be stated, 286. 
 
 Representative capacity, denial of right to claim in, to be stated specifi- 
 cally, 361. See " Defendant." See " Indorsement." 
 
 Review of taxation of costs not to be by Master or Registrar in chambers 
 of the Q. B., C. P., Exch. or Probate Divorce and Admiralty Divisions, 
 511. See "Costs." 
 
 Revising Barristers, enactments as to, to continue in force, 244. 
 
 Revising Barristers to be appointed by senior Judge of Surrey Circuit to 
 be designated by order in Council, 244. 
 
 Rota of Judges for election petitions, 91. 
 
 Rota of Vacation Judges, 536. 
 
 Rule to show cause not to be granted unless expressly authorized by 
 rules, 507. 
 
 Rules of Court, 271-539. 
 
 Rules of Court, Additional, 636 663. 
 
 " Rules of Court," interpretation of, 169. 
 
 Rules of Court in Schedule to Act of 1875 to come into operation at the 
 commencement of the Act, but may be altered and annulled subse- 
 quently by the Supreme Court or by Parliament, 231, 232, 249. 
 
 Rules of Court may be made to modify provisions contained in statutes 
 relating to any transferred jurisdiction, 248. 
 
 Rules of Court may be made regulating vacations, 69. 
 
 Rules may be made under the Chancery Funds Act, 1872, s. 18, for con- 
 version of cash into securities, 261. 
 
 Rules of the Act to be in force in all Courts in which the matters they 
 relate to are cognizable, 162.
 
 710 INDEX. 
 
 Eules relating to dealing -with funds in Court to be deemed Rules of prac- 
 tice and procedure, 248. 
 
 Eules of Pleading, new, substituted for those in use in the Chancery, 
 Common Law, Admiralty, and Probate Courts, 355. 
 
 Rules of Pleading in Court for Divorce and Matrimonial Causes to remain 
 unchanged, 355, 538. See "Pleading," "Doubt," "Order in Council." 
 
 Salaries See " Officers," " Judges." 
 
 Salary, form of indorsement of claim for, 546. 
 
 Sale and Distribution of proceeds of property subject to any lien or charge 
 
 assigned to the Chancery Division, 84. 
 
 Sale of goods, form of indorsement of claim in action in respect of, 552. 
 Salvage, forms of statement of claim, defence, and reply, in action for, 
 
 615, 618. See " Admiralty Action." 
 
 Salvors, form of indorsement in Admiralty action by, 555. 
 Samples may be taken by order of the Court, 503. 
 Scale of costs, lower, 641, 644. 
 Scale of costs, higher, 643, 644. 
 Scandalous or irrelevant matter in statement maybe struck out or amended, 
 
 386. 
 Scandalous or irrelevant matter in interrogations may be struck out by 
 
 leave, 408. 
 
 Schedule, whole, to the Act of 1873 repealed, 172, 634. 
 Schooling, form of indorsement of claim for, 547. 
 
 Scienter may be alleged in pleading without setting out circumstances, 368. 
 Seal of the Court, order or certificate sealed with, to be sufficient authority 
 
 to proper officer, 465. See " District Registry," " Great Seal," and 
 
 " Writs." 
 
 Seaman's wages, form of indorsement in Admiralty action for, 555. 
 Secretaries transferred to the Supreme Court, and, if attached to Judge, to 
 
 continue so attached, 141. 
 Security for costs. See " Costs." 
 
 Seduction, form of indorsement of claim in action for, 552. 
 Serjeant-at-Law, no Judge to be required to take the degree of, 11. 
 Serjeant-at-Law may be included in commission of Assize, 90. 
 Sequestrari facias de bonis ecclesiasticis. See " Writ of Sequestrari facias"* dc 
 
 "bonis ecclesiasticis. 1 ' 
 
 Sequestration. See " Writ of Sequestration. 
 Service of an existing Judge in the High Court or Court of Appeal to be 
 
 deemed continuous service, 12. 
 
 Service of writ of summons of place of business on person having manage- 
 ment of partnership to be good service on firm, 306. 
 Service by nailing writ upon the door of the dwelling-house, 308. 
 Service of amended pleading on the opposite party, 305. 
 Service of notice of claim to contribution, and of statement of claim 
 
 therewith, 347. 
 Service of notice of claim to contribution to be within the time limited 
 
 for filing and delivering statement of defence, 347. 
 Service of order to show cause against new trial, 454 . 
 Service in action to recover land, 308. 
 Service in Probate actions, 313. 
 Service not to be required when defendant by his solicitor agrees to 
 
 accept service and enters an appearance, 303. 
 Service, the date of, to be indorsed within three days, 310.
 
 INDEX. 711 
 
 Service to be made in the manner in which personal service is now made, 
 303. 
 
 Service on committee of lunatic to be good service, 305. 
 
 Service on corporation, hundred, or inhabitants according to statute, 307. 
 
 Service on father or guardian of infant defendant to bo good service, 305. 
 
 Service on husband to be good service on wife, 304. 
 
 Service on person with whom infant or lunatic resides to be good service, 
 305. 
 
 Service on infant, Court may order, to bo good service, 305. 
 
 Service, when no, on defendant, writ or concurrent writ may be renewed, 
 301. 
 
 Service, substituted, Court may order, 303, 310, 311. 
 
 Service, substituted, application for, to be supported by affidavit, 310. 
 
 Servico out of the jurisdiction, rules for, accurately denned, 311, 313. 
 
 Service out of the jurisdiction, application for leave to effect, to be sup- 
 ported by affidavit, 314. 
 
 Service out of the jurisdiction in Probate actions, may be allowed by the 
 Court, 313. 
 
 Service out of the jurisdiction, Courts differed as to meaning of " cause 
 of action " in the case of, 311, 313. 
 
 Service within the jurisdiction, writ for, may be concurrent with one for 
 service out of, and vice versa, 299. See " Counter claim." " Admiralty 
 action in rein," " affidavit," "Marshall." 
 
 Sessions. See " Petty Session," " Quarter Sessions." 
 
 Set-off, Court may, on application of the plaintiff before trial, refuse per- 
 mission to the- defendant to avail himself of, 354. 
 
 Set-off, being established, the Court may give judgment for the balance 
 (if any) in favour of the defendant, 380. 
 
 Set-off, defendant relying on, to state it specifically, 361. 
 
 Sot -off may be amended at any time before the expiration of the time 
 allowed for pleading to the reply and before pleading thereto, 388. 
 
 Set-off, where there is no reply, may be amended at any time before the 
 expiration of 28 days from the tiling of tho defence, 388. 
 
 Set-off to bo stated separately in statement of claim, 361. See "State- 
 ment of set-off," " Counter claim," " Cross action," 
 
 Sheriffs. See " Exchequer Division." 
 
 Sittings, Courts may hold at any time and at any place, 69. 
 
 Sittings for trial by jury in London and in Middlesex, to be held con- 
 tinuously, subject to vacations, 34, 90. 
 
 Sittings in vacation and of Vacation Judges, 71, 537. 
 
 Sittings of Divisional Appeal Court for Privy Council appeals, 116. 
 
 Sittings to bo four in each year, 533. 
 
 Sittings in Banco, business of, to bo taken by Divisional Courts, 97. 
 
 Sittings may be regulated by Additional Rules, 232. 
 
 Slander, form of indorsement of claim in action for, 550. 
 
 Solicitor to declare whether writ issued or not issued with his autho- 
 rity, 300. 
 
 Solicitor, name of firm and place of business of, to be indorsed on writ and 
 on every pleading, 289, 291, 360. 
 
 Solicitor not entering appearance in pursuance of his undertaking, to be 
 liable to attachment, 319. 
 
 Solicitor not giving notice to his client of having been served with an 
 order for inspection or discovery, to bo liable to attachment, 416. 
 
 Solicitors, regulations as to, 229, 230.
 
 712 INDEX. 
 
 Solicitors to be entitled to the same privileges, and be subject to the 
 
 same obligations, as formerly, 157- 
 Solicitors of the Supremo Court, all persons who would have been entitled 
 
 to be admitted attorneys, solicitors or proctors to be admitted as, by 
 
 the Master of the Rolls, 156, 157- See " Attorneys," " Officer," 
 
 " Proctors," " High Court of Justice," " Supreme Court," " Registrar," 
 
 " Address," " Preliminary Act." 
 Special case, form of request to set down, 422, 565. 
 Special case may be entered for argument by either party, 422. 
 Special case, questions of law may be raised by, 421. 
 Special case, questions of law may be stated in the form of a, 419, 421. 
 Special case to be divided into paragraphs numbered consecutively, and 
 
 refer to facts and documents concisely, 419. 
 Special case to be printed by the plaintiff, and signed by the parties or 
 
 their solicitors, and filed, 422. 
 Special case, where married woman, infant, or person of unsound mind, a 
 
 party, not to be set down without leave, 422. See " Documents." 
 Special indorsement. See " Indorsement of writ." 
 
 Specific performance of contracts assigned to the Chancery Division, 84. 
 Specific performance, form of indorsement for, 546. 
 Sporting, form of indorsement for infringement of right to, 533. 
 Stamps, penalty for forgery of, 253. 
 Stamps, fees of Court to be taken by, 257. 
 Stamps, Commissioners of Inland Revenue to keep separate accounts of 
 
 money received for, 252. 
 
 Stamps, fees to be taken in District Registries by, 126, 127. 
 Stamps may be impressed or adhesive, as the Treasury may direct, 251. 
 Stamps, money received for, to be carried to the Consolidated Fund, 252, 
 
 253. 
 Stamps, the Treasury may, with the concurrence of the Lord Chancellor, 
 
 make rules regulating the use and cancellation of, 251, 252. 
 Stannaries, jurisdiction of Lord Warden of, vested in the Appeal Court, 21. 
 Statement of claim made or relief required to be indorsed on writ, 374, 
 
 277. 
 Statement of claim to be amended unless otherwise ordered, when 
 
 party added as defendant, 346. 
 Statement of claim to be delivered within six weeks of defendant's 
 
 appearance, if defendant shall not state that he does not require it, 
 374. 
 
 Statement of claim to distinguish separate claims, 361. 
 Statement of claim to state specifically the relief claimed and show if it 
 
 be for discovery only, 360. 
 Statement of claim, where no defence is delivered, may be amended at 
 
 any time before the expiration of four weeks from appearance, 387. 
 Statement of claim may be altered at any stage, 386. 
 Statement of claim may be amended once before time limited for reply 
 
 and before replying, 387. 
 Statement of claim may be amended by introduction matter which 
 
 might formerly have been alleged by way of new assignment, 362, 363 
 Statement of claim, may be delivered at any time after writ issued and 
 
 before service, 374. 
 
 Statement of claim, may be ordered to be amended where action arc- 
 inconveniently joined, 383.
 
 INDEX. 713 
 
 Statement of Claim need not be delivered, where Defendant fails to 
 appear and the claim is for pecuniary damages, 328. 
 
 Statement of Claim need not be delivered, where Defendant fails to 
 appear to a writ not specially indorsed and the claim is for a liquidated 
 sum, 326, 
 
 Statement of Claim not to be delivered more than six weeks after 
 appearance, 374. 
 
 Statement of Claim not delivered in time, Defendant may apply to Court 
 to dismiss the action, 397. 
 
 Statement of Claim shall name the county or place in which Plaintiff 
 proposes the action shall be tried, if not in Middlesex. 
 
 Statement of Claim further, time to deliver, 376. 
 
 Statement of Claim being dispensed with, Plaintiff may give printed 
 notice that his claim is the same as in special indorsement on the writ, 
 376. See " Costs," "Service," "Notice," "Negligence," "Necessaries," 
 " Fraud," "False imprisonment," "Agent," "Account stated," "Probate," 
 "Bill of Exchange," "Promissory note," "Foreclosure," "Charter 
 party," "Guarantee," "Salvage," " Possession of Ships," "Equipment 
 of Ships," " Bottomry," " Collision," " Damages," " Admiralty action in 
 rem," " Statement of Complaint." 
 
 Statement of Complaint, showing relief or remedy Plaintiff" claims, 355. 
 
 Statement of Complaint, to be tiled by the Plaintiff (unless Defendant, 
 at the time of his appearance states that he does not require it) and 
 delivered to the Defendant, 355. See " Statement of Claim." 
 
 Statement of Defence, to be delivered to the Plaintiff, 355. 
 
 Statement of Defence, may be altered at any stage, 386. 
 
 Statement of Defence, may plead matters arisen after action brought 
 with or without other grounds, 372. 
 
 Statement of Defence, counter claim or set-off, must state specifically 
 the relief (if any) claimed, 360, 361. See "Fraud," "Equipment of 
 Ship," " Collision," " Salvage," " Negligence," " Damages," " Promis- 
 sory Note," "Bill of Exchange," "Trespass," "Probate," "False 
 Imprisonment," " Bottomry," " Administration," "Agent," "Charter 
 party," "Foreclosure," " Recovery of land," "Defence." 
 
 Statement of counter claim, to be delivered to the plaintiff, 355. 
 
 Statement of Reply, to be delivered to the defendant, 355. 
 
 Statement of Reply, may be altered at any stage, 386. 
 
 Statement of set-off to be delivered to the plaintiff, 355. 
 
 Statute of Frauds, denial of an alleged contract to be construed only as a 
 denial of making it in fact, not of its sufficiency with reference to the, 
 367- 
 
 Statute of Limitations, no bar where express trust, 39. 
 
 Statute of limitations, renewal of writ to prevent the operation of the, 
 301. 
 
 Stay of execution, by order, 474. 
 
 Stay of execution, on grounds arisen too late to be pleaded, 478. 
 
 Stay of execution, no, by appealing, 530. See " appeal," " execution." 
 
 Stay of proceedings not to be caused by appeal from a District Registrar 
 (unless so ordered) or from a Master, 427, 512. 
 
 Stay of proceedings, order to show cause a, 455. 
 
 Stay of proceedings, when solicitor declares writ not issued with his 
 authority, 300. 
 
 Stay of proceedings, when plaintiff's solicitor fails to declare names and 
 residences of members of plaintiffs firm, 300, 301. See " Appeal." 
 
 47
 
 714 IXDKX. 
 
 Stay of proceedings may be applied for by any person entitled to enforce 
 
 an order sought to be infringed, and may be directed by Supreme Court, 
 
 31. 
 
 Suit, interpretation of, 169. 
 Suits hitherto commenced in the Court of Chancery by bilTor information, 
 
 in the Court of Probate by citation or otherwise, in the High Court of 
 
 Admiralty by a cause in rem or in personam to be commenced by an 
 
 " action," 272. 
 Summons, application to enter final judgment, specially indorsed, to be 
 
 by, 333. 
 
 Summons, application for an account to be made by, 335. 
 Summons, evidence on, may be given by affidavit, 449. See " Writ of 
 
 Summons." 
 
 Summons, application at chambers to be made by, 610. See " Appeal." 
 Support of plaintiff's land, form of indorsement of claim for taking away, 
 
 652. 
 
 Sunday not to be reckoned in computation of time, 518. 
 Supreme Court to consist of two Divisions, the High Court of Justice and 
 
 Court of Appeal, 5, 6. 
 Supreme Court, power of, to make, alter and annul Eules of Court, after 
 
 commencement of Acts, 233. 
 Supreme Court, existing staff of officers transferred to, 141, 142, 143, 
 
 144. 
 Supreme Court, such officers as may be necessary to be attached to, 153, 
 
 154. 
 Supreme Court, to exercise jurisdiction over solicitors. See " Officers," 
 
 " Solicitors," 156, 157. 
 Surrey. See " Circuit," " Commission." 
 
 Taxation of costs. See " Costs." 
 
 Tenant for life. See " Waste." 
 
 Tenure of office of existing officers, not to be altered by Eules of Court, 
 
 151. 
 
 Terms abolished quoad administration of justice, 68, 69. 
 Term may still be referred to as a measure of time, 68, 69. 
 Time, 517, 519. 
 
 Time appointed by the Eules of Court may be enlarged or abridged, 519. 
 Time expiring on a Sunday or other day on which offices closed, to hold 
 
 good for next day, 518. 
 
 Time, computation of, for sittings and vacations, 518. 
 Teste of writ. See " Lord Chancellor." 
 Title of Judges not to be affected, 12, 13. 
 Tolls, form of indorsement of claim to establish, 551. See " Eecovery of 
 
 Land." 
 
 Tolls, form of indorsement of claim for, 547. 
 
 Towage, claim for, form of indorsement in Admiralty action of, 555. 
 Trade mark, form of indorsement of claim for infringement of, 553. 
 Trainbearer, personal officers of Judges to perform duties of, 150. 
 Transfer of action, 499, 501. 
 Transfer of action may be made by the Court with or without application, 
 
 88, 89. 
 
 Transfer of action may take place at any stage, 500. 
 Transfer of action from District Eegistry to High Court, any party may 
 
 apply for, and application may be granted' or refused, 128, 129.
 
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