VALUABLE LAW WORKS PUBLISHED BY STEVENS AND HAYNES, BELL YARD, TEMPLE BAR, LONDON. V For full particulars of the following and other W orks, see A COMPEI EXECUTORS lupins of refen r, trriBter-at-Lay Partition and of THE LAW TIONS IN CH Clauses Art. Ti \r.. \r. With Lincoln's Inn, li A SUMMAR LESIASTIC inn, Nummary of tin- SMITH'S SU ADMIRALTY. NG TO annotated by incoln's Inn, ■ I tin- Law of SELF-PREP. AMI NATION, at »tudy, with -t .-t t who have not y "Self UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY PETI- A.-t, Lands tins, Infants, Williams, of IN THE ination. By aw," and " A id others. ICE IN rE EX- ete course of tided clerks it, Solicitor, ■i of Common VMINA- iestions, and iM'i :i:m m B, other works. SELF-PREP, •| [< is ; i ontainfc ; tin- I 'ilioi One l o ■ •■'■'i>', A SELECTION OF PRECEDENTS OF PLEADING UNDER THE JUDICATURE iCTS IN THE COMMON LAW DIVISIONS. With Notes Ex- the DifTerenl Causes of Action and Grounds of Defence; and an Introductory ; Rules and Principles of Pleading, as illustrated by the various ,ii« down to ti..- present time. By John Cunningham, of the Middle Temple, Esq., i aw • tuthoi ol " I be Law Relating to Parliamentary and Municipal Elections and Petitions;" and Mii.es Walkbb MaTtinson, of Gray'* Inn, Esq., Barriater-at-Law, late Il,,;.i | identship of the Four Inns of Court, &c. f Mr. Campbell's excellent work on the Law of Negligence, in which no pains have been spared in collating cases, and the style of which is clear and easy." — Saturday A'> v In Svo, price 10s. cloth, THE PRINCIPLES OF BANKRUPTCY. With an Appendix-, containing the General Rules of 1870, 1*71, 1873, and l*7s, Scale of Costs, and the Bills of Sale Act, ls?s. By Richard Ringwood, B.A., of the Middle Temple, Barrister- at-Law, late Scholar of Trinity College, Dublin. 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" Few modern text-books have a higher authority than Mayne on Damages."— Solicitors' Journal, In One Volume, One Thousand Pages, 42s. cloth, A TREATISE ON THE DOCTRINE OF ULTRA VIRKS: Being an Investigation of the Principles which limit the Capacities, Rowers, and Liabilities of Corporations, ami more especially of Joint stock Companies. Bj Seward BRICE, M.A., LL.I)., London, of the inner Temple, Esq., Barrister atl, aw. Second Edition. Revised throughoul and re-written, greatly enlarged, and containing the United States aud Colonial Decisions. A DIGEST LAW OF PEACTICE IWDElt THE JUDICATURE ACTS AND KULES, CASES DECIDED IN THE CHANCEEY AND COMMON LAW DIVISIONS, FEOM NOYEML'EB, 1875, TO AUGUST, 1830. W. II. HASTINGS KELKE, M.A, of Lincoln's inn, barribter-at-law. L N D X : STEVENS & HAY-N.ES, T.nu publishers, BE I.I. YAK D, TEMPLE BAR 1SS0. LONDON i ■■ > . & CO., PRINTERS, WHITEFB1AES. ^2. -Co o I I o I PREFACE. The raison d'etre of this little book is twofold — (1) it aims at recording all the important practice cases in the Chancery and three Common Law Divisions decided with reference to the Judicature Acts down to the present moment in the briefest possible language, (2) of doing so in immediate connection with the wording of the Acts and Rules themselves. It is in no sense a "setting out" of the Acts and Rules, of which many portions have been omitted, some as purely transitional and now already of little more than antiquarian interest, some as simply directing official routine, others as not having given occa- sion for any judicial interpretation, and as perhaps not being likely to do so. After one half-decade of experience of the working of the Acts, it has seemed to the writer that the time had arrived for an endeavour to consolidate the gist of the decisions along with the portions they in- terpret, adding further an epitome of just so much of other parts of the Acts and Rules ;is would form a con- nected whole. In condensing the combination, it is not vi PREFACE. anticipated that any real difficulty can arise from tlie fre- quent use of such abbreviations as e.g. " generally " = "unless the Court or a Judge shall otherwise order," or '• on temis" = " on such terms as to costs or otherwise as to the Court or a Judge shall seem fit," &c. ; especially as it is assumed that the reader possesses some edition of the Acts and Rules. The various subjects interlace at so many points, that it is perhaps impossible to frame a perfectly scientitic division ; hut it will be seen that the main lines of an action have been followed, various miscellaneous points being left to the concluding part. One innovation will be noticed, in that counter-claim is made to follow directly after claim, most of the regulations as to the one obviously applying, mutatis mutandis, to the other. The writer is not so sanguine as to suppose that he has been always successful in his attempt at condensation and abbrevia- tion. Where he lias tailed, he trusts that the notes will at least serve as an index for the correction of his errors. Where and 30 far as he may have succeeded in presenting .1 li! ief primd facie view of the joint product of statute and "judge-made " Law as at this moment existing, he is well aware that in this, perhaps even more than in any other branch of Law, the infinite possibilities of variation and combination, together with that large discretion which the elasticity of the A.cts and Rules allows to the Court, PREFACE. vii must prevent any chance oi' a finality where all points shall be " concluded by authority." The writer desires to acknowledge his obligations, as to the earlier cases, to the various editions of the Acts, particularly those of Mr. Wilson and Sir W. T. Charley. It is hoped that the hook will he found complete as regards cases reported in the Law Reports down to the present moment. And it has been attempted I i combine with these all the more important cases given in the Weekly Notes, and in various other Reports. W. 11. H. K. 77, Chancery Lank, November, 1880. CONTENTS. Table of Cases xi Taut I. Preliminary. The Acts 1 II. Writ to Close of Pleadings 12 III. EviDENCEj &C -17 IV. Trial to Execution 57 V. Appeal — Costs 74 VI. Miscellaneous 89 INDEX loi TABLE OF CASES. A. A bud v. Riches Adams, In re Alforth v. Espinach "Alina" .... Allen r. Kcnnet Allhusen v. Labouchere . 43, Ambroise v. Evelyn . . 37, Amirs v. Clark . Amos v. Chadwick . Anderson v. Bank of British Co lumbia Anderson v. Titmas Anglo-Italian Bank v. Davies 6, 21, Anstey ;•. North and South Wool wich Subway Co. Anthony v. Balstead . Appleford o. Judkins Arkwright v. Newbold . Ashley r. Taylor Ashnrst v. Outram Associated Home Co. v. Whichcord Aston r. Hunvit/. Atherley v. Harvey . Atkins' Estate, /" r< • Atteuborough v. London and St Catherine's Dock I !o. Attorney-General Birmingham (Council of) I lonstable Metropolitan Railwa . Pagham Har- bour Recla- mation Co. . Shrewsbury Bridge Co. . 69 m; lis 10 32 49 15 8 90 51 64 7>) 49 64 >, 8 85 27 77 30 13 in 28 33 26 99 PAGE Attorney-General v. Swansea Im- provement .V Tramway Co. 82 V. Tomline . 68 Atwood v. Chichester . 45 B. Back v. Hay .... 59 Bacon y. Bacon . . . . 51 ! v. Carlton . . .72 . Easton . . 4, 30, 31, 43 Baigent v. Baigent ... 69 Baillie's Trusts, In re . . 80 Baker v. Oakes . . . . 96 Bam i de P alj E pa/rti . . 2 v. Waddell . 75 Bunk of Whitehaven v. Thompson. 15 Banque Franco - Egyptienne v. Lutscher ... . . 55 Barber v. Mackrell . . . f>4 Barr v. Ban . .... 6 Bartholomew v. Freeman . . 91 Barton v. Titchmarsh . . . 3 Bates /-. Kiev .... 56 r. Elliott . . . . 22 Beckingham v. Owen . . .21 Beddington v. Beddington . . 14 BeiMow r. IV. 1 low 5 Begg r. Cooper . . . . 20 Bell v. North Staffordshire Railway Co 94 — V. Wilkinson . . 41 . r. Grant ... 15 Belmonte o. Aynard . . v "> Benbow v. Low .... 35 e v. Frost . . . 29 Xll TABLE OF CASES. Bennett ;•. Lord Bury . r. Moore Berdan v. Birmingham Small Ann Co. . r. Greenwood Berkeley v. Standard Discount Co Berridge v. Roberts Berry v. Exchange Trading Co. Beynon v. Sodden Bidder r. Xorth Staffordshire Rai way Co. . I y r. Pirkinson . . 56, Birmingham Estates Co. v. Smith Waste Co. v. Lane Blackburn Union r. Brooks Blake r. Albion Life Assurance Co r. Appleyard /-. Beech Blew iit v. Dowling Blytfa and Young, In re . Boddy o. Wall . Bolivia (Republic of) v. Nationa Bolivian Navigation Co. Bolton v. l'.olton . Bootli '•. Briscoe Bordier v. Burrell Bower r. Hartley Bowey v. Bell ' 'lis v. Bettwys Llantwit Collieri Co n v. Boynton Braginton v. fates ■ Bramble, Ex parte Bret >n v. Crockett . • t r. Durrand m /-. Smith .. Campbell h Dynamite Co. v. Krebs Imperial Co., Tn n . '■■bank r. K n 3ti am Ship Co. ffigg Brown r. Trotman ling V. Sal. in . :. In re v. Bull Buckt Bndd loch i da Port Railway Co p. Northern Rail- way Co. of Bnenos Ayres Bullock x. Corry .... PAGE 90 67 7:< 43 48 21 93 83 '> 1 33, 98 55 43 12 n«; 6 28 62 93 37 66 67 28 93 16 84 54 72 68 68 6 39 42 16 Burgoine r. Taylor Burke v. Rooney . I anus v. Irving Burnell v. Burnell Bustros v. Bustros v. White. Butler r. Butler Byrd v. Xiniu PAGK . 61 44 . 72 . 7,67 . 17 50, 51 30 . 36 C. Caldwell v. Pagham Harbour Recla- mation Co. .... 43 Caley v. Caley . . 24 Calland.er v. Hawkins ... 38 Campbell v. Fairlie ...... 8 v. Holyland . . . 93 Capes y. Brewer . . 14 Cargill r. Cower .... 42 "Cartburn" 30 Cartwright, Mary, In the goods of, 69, 93 Casey v. Arnott . . . .16 Cashin v. Cradock . . 43, 50, 52 Catling v. King . . . .4] Central African Trading Co. v. Grove 30 < hamberlain v. Barnwell . . 77 Champion v. Formby . . . 38 Chapman v. Knight ... 7 v. Mason . . . . 90 - v. Midland Railway Co. . 86 v. Real Property Trust . 89 Chatfield v. Sedgwick . . . 35 I Ihe fcer v. Phillips . . . . 25 Chesterfield, Ac, Colliery Co. v. Black . . • . . .49 Child r. Stenning . . 22, 23, 31 < 'hilton r. < 'c>i| k i:itinti of London . 66 Chorlton v. Dickie . . .29, CO Church v. Perry .... 49 Clark v. < Jallow . . . . 36 r. < look son . . . 59 v. Roche . . . 3, 81 i lutton v. Lee .... 93 Id v. I'ykc . . . . Hi Cockle v, Joyce . . . .61 Cocl l"' 1 1 v. London < leneral Cab Co 60 Cole v. Firth 33 i !ol< I" iirne v. Coli bourne . . 5, 12 ' lollette v. Goode . . . . 36 Collins v. Vesl ii ton, 74, 79, 80 v. Welch . . . .83 ' lorn mi onei oi h ers, &c. v, Gcllatly . ... 25 TABLE OF CASE?. Sill PAGE Conington v. Gilliatt . . . 60 Conybeare v. Lewis ... 45 Cook v. Dcy . . . .14, 33 v. Enchmarch . .32 Cooper v. Blisset . . . . 25 v. Whittingham . . 5 Costa Rica (Republic of) v. Erlanger 48, 84 v. Strousberg 50 Cousins v. Lombard Deposit Uank 7 Cowan's Estate, In re . 70, 71 Cox v. Barker 23 31 Cracknal! v. Janson 49, 76 86 Craig v. Phillips . 79 Crane v. Jullion 14 Credit Foncicr of Mauritius v. Paturau Q Creen v. Wright 83 Cremetti v. Crora 70, 71 Creswell v. Parker . , 16, 17 Crom v. Samuels . , . 94 Crowe v. Baruicot . , 35 Crowle v. Russell . , 4 Crump V. Cavendish 20 Crush v. Turner . t 7 Cummins v. Herron . 78 D. Dallinger v. St. Albyn t , 42 Darcy v. Whittaker . 27 Daubney v. Shuttleworth , 93 D ran u. Simmins . , , 6S Davies v. Felix . , 63 v. Garland . 11 V. Williams 52 Davis v. Flagstaff Mining Co. of Utah . 35 v. Goodbehere 63 V. Spenee 20 Daw r. Garretl . . ' 33, 43 Daw kins v. Lord Penrhyn 41 ;>. Prince Edward of Saxe- Weimar 4 Dawson r. Shepherd 31 Day v. Whittaker . SS Dean '■. Wilson 5, 7, 92, '.'7 Dear r. Sworder . . 30 Do Hart t: Stevenson . •27 Delmar v. Freemantle ' • 12, '.-J Deuce v. Mason 81 Dennis v. Seymour . . 21 31 80 1 79 47 , 87 . 80 9, 32 »;:; 82 5, 23 96 ver Lead 7^; 41 37 jver . 62 24 42 15, 18, 33, 70 . 98 Dessilla v. Schunck & Co. and Fels & Co. . Diamond Fuel Co. , In re . Dicks v. Brooks . Dickson v. Harrison Disney <'. Longbourne . Ditton, Ex parte Dix v. Groom Dodds V. Shei>herd . Dollman v. Jones Donovan r. Brown . Dowdeswell v. Dowdeswell Doyle v. Kaufman . Duchess of Westminster Silver Lead Ore Co., In re Duckett v. Gover . Duckitt v. Jones . Dunkirk Colliery Co. v. Lever Dupuy v. Welsford Durling v. Lawrence Dymond v. Croft Dyson v. Pickles i-:. Eade v. Jacobs . . . . 49 Eden v. Naish .... 4 Edmunds )••. Attorney-General . . 4 Edwards v. Edwards . . . 6, 63 Egremont Burial Hoard v. Egremont Iron Ore Co. . . . . 50 Elam v. Vaughan . . .26 Eldridge v. Burgess . . 27, til " Elijah Packer "... 84 Ellis v. Ambler . . . . 47 v. Munson . . . . :'.4 Emma Silver Mining Co. U.Grant 60, 82 English r. Tottie . . . . 51 Etty r. Wilson .... 63 Evans, Ex parte . . . . , 84 Hasker, Tn re 78 Garbett y. Fawcus 4 lie 74, 75 (Gardner, /« re , 92 Halo y. Snelling . 45 y. Irvin 52 Hawksley v. Bradshaw . 39, 4:5 Garni 1 .Brad] iy . 8:3 Hawley y. Reade . 47 ■ Ii Heap y. Marris 4:! Gather cole y. Smith 74 y. Hates . ! 4, 6 22 Hennessy v. Bohmann, &c, & Co 5, 49 i ii here . 49 Hetherington v. Longrigg 07 ii Financial A 1 :-u Ii y. < bamberlain . 43 ciation 94 Higginbotbam v, Aynsley . 37 44 Gilbert v. V. . 56 Higginson v. J Fall . 50 Smith 6 : 67 Higg '■. Scbrader 72 Gillott v. Kerr . 1 1 07 i: y. T •( herne 79 innibanta" 76 Hillman y. Maj bew . . 11 'n ,89 Gledhill v. H 32 Hill's Executors v. Managers >f Golding o. Wha Co 43 Metropolitan A-; lum Di brici . 77 Graham y. Campbell 70 Hobb ''. Reid 25 . Hoch y. Boor '. 9 62 -Egyptienm . • 1 y. Finch mi . 70 y. Holland 6 y. Hodges 37 ■ Australian Mining Co Ho ! ; "0 y. Fox l 1 /■. Martin 16 Hod on '}. Mochi . 35 39 i, y. York • 33 ■ by . 37 Holmes v. II- n y 59 — - y. Pratt 24 Unit ?•. Jesse .... 8 r. Serin 35 Ho r v. Oylei 86 Cirili 86 Honduras tnti f- 1 (ceanic Railwt y r. Allen . 78 Co. v. Tucker . 23 Grills v. Dillon 81 Hool K Ind, < loope, & Co. 33 TABLE OF CASES. \\ PAGE 39 1-1 11 Hoole a. Earnahaw . Hopewell v. Barnes Horwell v. London General I >] Co Hoskins' Trusts, In re . Houseman w. I [ouseman . Huckwell, In re . Hnggons v. Tweed . Hughes v. Mel ropolitan Railwaj Co Humphreys v. Edwards Hunt v. City of London Real Pro perty Co. Hunter v. Hunter r. Young Hutchins v. Glover I! fde '". V\ arden I. International Fix w i w, Society v. City of Moscow Gas Co. . 79 [reland, Ex parte ... 79 Irlam v. Trlam . . 54, 96, 97 Is:en-<, Ex parte . . . .81 Ivory, In re . . . 81 60, 62 75 30 51 til Jacksox o. North Eastern Railway Co. . James v. Crow Jenkins v. I 1 r. Morris .'nil ,-. Job . Johnasson ». Bonhote Johns ''. Jam Johnson v. Smith . Jones, In re v. Baxter V. Chennel 0. .lollrs r. Monte Video I ; :i- Co ue, Ex partt . Juill o. Green " Julia Fisher " Jnpp v. Cooper . Justice o. Mersey Steel and Iron I !o Kain c. Farrer 62, 51 PAGH r. Phillips •_'7 Kendall v. Hamilton . 25 Kelly v. Byles 7'i King r. Corke 43 v. Davenport . II. 96 /'. Sandeman 61 Kingchurcb y. People 3 Gard a Co 4 Kiie) r. Rudkin . 26 Kirkwood v. Webster 77 Knatchbull v. Fowler . 54 Knight v. Pursell . 87 Krehl >\ Burrell . 63 L. La Grange v. McAndrew . . 44 " Lake. Mefantic " . . SO Laming v. Wee .... 11 Landore Si-men Steel Co., In re . 90 Langley, //' a: . . 68 Langrid je v. < lampbell . . 39 Lascelles v. Butt . . .57, 62 " Laurella " . . . .76 Law renee, In re . 78 Lawrenson v. Dublin Metropolitan Junction Railway Co. . . 15 Le Blanch v. Reuter's Telegraph Co 8 Leo u. Xuft.ill . . . 11, 81 Lee Conservancy Board v. Button . 77 Pa ■ 1 1 . . . 35 Lewis v. Nobbs . ' . . .24 Liberia R public of) ». Roye . 50 Little's Case . . . . . 74 Litton v. Litton ... 40, 67 Lloyd, In re . . . . • 6 r. Dimmack . . 23, 29 r. .lours . . . 59, 90 v. Lewis .... 65 Lloyd, Allen & Lloyd, In re . . 6 Lloyd's Banking Co. v. Ogle . . 20 63 London Joint Stock Hank v. Alder- men of London . . . 7- London Joinl Stock Bank v. Mayor of London . . . . 7*2 London and Provincial Maritime Insui.i Dai ies . 47 London Syndicate v. Lord . 5 1, '-'1 I ottom, Ex parte ... 8 Longman v, Basl . . . 9, 62 ■-. Lowe .... 63 61 XVI TABLE OF CASES. Luckie, In re .... Luke v. South Kensington Hotel Co Lumli r. Whiteley Lydall v. .Martinson Lyon v. Twedddl . . PAGE 16 25 98 61 49 M. McAllister v. Bishop of Rochester 31.50 McAndrew v. Barker 9, 33, 63, 79, 80 McCorqaodale v. Hell . . 50, 51 MacDonald o. Cairington . . 32 v. Foster . . . 7, 97 McPhail v. Lowder ... 17 Machu r. (('Connor . . 77 Mackley v, Chillingworth . . 86 Manchester and Milford Railway Co., //* re .... 6 Manchester, Sheffield, and Lincoln Railway Co. v. l'.rooks . . 22 Mansfield v. Childerhouse . . 4'.) Maples v. Masini . . . . 33 Marner o. Bright . . .4, 30 Marriott v. Marriott . 42 Marsden v. Lancashire and York- shire Railway ( !o. . . 83 Martano v. Mann . . 23 Martin r. Bannister . . .10 v. Gale . . 67 Mason v. Brentini ... 34 V. Wirral Highway Board . 72 Massey v. Allen . . 84 ■ •. Ex parte ... 77 Matthews v. Whittle . . . 32 May v. Head .... 61 Mayer V, Murray . . . . 11 Melloi v. Den ham ... 3 v. Bidebotham . . . 67 Mercantile Mntoal Insurance Co. v. naith .... 47 Mercer 9 Co., Ex parte . . . 83 ■ v. Cotton ... 47 iolitan A. \luni District v. Hill .'.... 8 iolitan Bank o. Heiron . 63 Metropolitan Board of Works v. New River Co. . . . 95 I t ,n Inner Circle Railway o. Metropolis in Railway 58 Metropolitan Rail De- fries 12 PAGE Meyrick v. James ... 56 Michell r. Wilson . . . . 61 Michell's Trusts, In re . . 79 Mid.lleton v. Pollock . . . 27 Millard v. Burroughes ... 88 Mills V. Jennings . . . . 23 Millissich v. Lloyd's ... 66 Minton v. Metcalf . . . . 33 Molloy v. Kilby 48 Morgan v. Elford . . . . 82 Morton v. Miller .... 32 Mostvn v. West Mostyn Coal and Iron Co 3, 7 Muirhead v. Direct United States Cable Co 20 Mullins v. Howell . . . . 93 Murr v. Cooke .... 9 Mycock r. Beatson . . 31 Myers v. Defries . . . .83 N. Nagle-Gillman v. Christopher . 57 Nathan v. Batchelor ... 40 National Funds Assurance Co., In re . . . 78, 80 \a\ Lor r. Farrer .... 34 Neale v. Clarke . . . 9, 33 Nelson, Ex parte ... 73 New British Mutual Investment Co. v. Peed . . . 51 New River Co. v. Midland Railway Co so New Westminster Brewery Co. v. Hannah . . . 54 Newbiggin-by-the-Sea Gas Co. v. Arms! rong . . . 11, 14 Newcoraen v. Coulson . . .46 Newell v. Provincial Bank of Eng- land 3, 35 Noad v. Murrow .... 36 Nobel's Explosive Co. v. Jones, &c. 42 Noel v. Noel . . . .23, 24 Norris v. Beazley . . .27 o] i bampton ( !oal and Iron Co. v. Midland Waggon Co. . 42, 84, 85 Northumberland 'Duke of) v. Todd 56 Norton r. Florence Land, &c, Co. 16 r. London & North-Western Railway Co. . . 79 N Cra ley . . 41 Nurse V. Duruford . . .14 TABLE OF CASES. xvil PAGE PAOH 0. Pontifcx v. Severn , Pooley v. Bosanquet . 9, 62 93 Oakwell Collieries, In re 92 v. Driver . 86, 95 1 tastier v. Henderson 63 Potter v. Chambers 9, 35 O'Neile v. Clason 14 v. Cotton . . . 64 Oriental Bank v. Fitzgerald 20 Powell v. Jewsbury 41 Original Hartlepool Collieries v. v. Williams 58, 59 Gibb .... 34, 38 Pringle v. Gloag 86, 87 Orr-Ewing & Co. v. Johnson & Protector Endowment Co. v. Whit Co 77 ham .... . 71 Orr-Ewing's Trademarks, /" re 83 Pullen v. Snelus 36 ( >rtner v. Fitzgibbon 20 Purnell v. Great Western Railwa; 1 (wen v. Henshaw . 72 97 Co. and Harris . .64, 74, 96 v. Wynn 50 Pauley r. Camphausen . 15 Padwick v. Scott . 34 Pannell v. Nunn 64 Papayanni v. Coutpas . 21 Paraire v. Loibl 39 Paris Skating Rink Co., In 're 29 Parker, /// re 28 Parpaite Freres v. Dickenson 13 Parsons v. Harris . 45, 66 !'. Tinling 83 Payne, Ex parte 76 Peacock v. Hooper 56 Pearse v. Spickett . 45 Pease v. Fletcher 5 Peek v. Trinsmaran Iron Co. 6 Pellas v. Neptune 34 People's Garden Co., In re 4 Percy and Kelly Nickel, &C, Co. J n re . 85 Perkins v. Dangcrfield 68 Peru (Republic of) v. Weguclin 82 Pheysey v. Pheysey . 80 Philippa r. Philipps 87 Phillips & Gill, In re . 12, !>■•! v. Phillips . 43 v. South- Western Railwa Co. . 64 Phosphate Sewage Co. v. Hartmon t 80 v. Molleson . 4 Pierpoint v. Cartwright . 7 Pike v. Keene 25, 53 Pilcher, In re ... 96 v. Hinds . 32 Pilley v. Baylis 59 Polini v. Gray 81, 82 Pontifex v. Midland Railway Co. 9 K. Rafael v. Ongley . . . Ralph r. Carrick . , . . Ray v. Barker ... 20, Real and Personal Advance Co. V. McCarthy . . . . 6, Reddish, Ex parte Redinayne v. Vaughan Redondo v. Chaytor Rees, In re Regina v. Fletcher v. Pemberton v. Steel v. Swindon New Town Local Board . Renshaw v. Renshaw Rhodes v. Airedale Draining Com- missioners . V. Jenkins . Richards V. Kitchen Richardson, In re . Richardson r. Elmit Robarts v. Buee Roberts t\ Evans Robertson v. Howard Robinson v. Chadwick . Roe v. Davies . Rogers r. Jones . v. Manby . Rolfe o. Maclaren Ri^s v. Gibbs . Rotheram v. Priest Roupell v. Parsons . Rowclill'e v. Leigh R"\ le, la re . . Ramsey v. Reade Runnacles v. Mesquita Runtz v. Shetlield , 23, 43, 14 76 21 46 75 58 85 26 3 7 33 3 79 68 87 70 86 24 40 90 56 . . 56 35, 54, 67 . . 51 . 20 . . 45 50 12 67 20 94 48, 49, 54, TABLE OF CASES. . Tpbin Rutter i>. Ti. »en1 PAGE 27, 59 . 07 S. Sapfi i;v. Ex pa/rte . . 79, 95 St. Nazaire Co., In re . 2, 42, 7:"' Sanderson, / ... 86 •. Bilton . . . . 34 Saundi lones . . .49 " • 91 . / . . partt ... 77 .ilk . . . 5 ' r Waggon Co. . 9 Bcotl v. Royal Wax Candle Co. . 15 Ler v. Central Bank of London 5 Scutt '■. Freeman . . 61, 65 Seymour v. Coul . ■ 7 Bharrock v. London & North Western Railway Co. . . 7, Bhaw v. Earl of Jersey . . . Bhelford <\ Louth <.v Easl Coa I Railway Co. .... Sheward v. Lord Lonsdale ■. Price k Co. . . Biddons v. Lawrence . Simmons v. Btorer . . . • i Manufacturing Co. v. ■ Pucker ... . Sloman v. Govt rnorof .V v '/.• land Smith, Ex parte . . . • J n re . . . ■ v. Berg . r. Dobbin . . 13, 17, v. Ghrindley v. Richardson . . 22 v. Wilsoi ... litre. . ■ ■ Snell, //' /•<• .... r, In n a • • ark and Vauxhall Wat p. Quick Bpilli i i I Co, . Ward .v Co. Bprunt v. Pugh . . . . Sj.urr /•. Hall .... buiidt '•. Walford . . . i I . . V. D'lXOD .... PAGE St: uart v. Gladstone . . . 54 Stilling r. Du Barry . . .94 Stockton Iron Furnace Co., In re 75 Stokes V. Grant . . 43 Stone v. Bennet . . 28 Snavy v. Waddle ... 89 Street r. Glover . . 38 Stubbs' Estate, In re . . . 90 v. Boyle . . .62, 66 Sugden v. Lord St. Leonards . 76 Sugg u. Silber . . . . 58 Suteliffe v. .Tames ... 36 Swansea (Mayor of) v. Quirk . . 48 Swansea Shipping Co. V. Duncan 16, 17, 29, 31 Swindell v. Birmingham Syndicate 59, 78 Sykes v. Firth . . . . 59 Symonds v. Jenkins ... 67 T. 6 Tasmaman Alain Line Railway Co V. (lark 60 20 Tawell r. Slate Co. 32 49 Taj lor's Case 79 71 Taylor v. Fatten 52 78 v. Eckersley 6 83 v. Keily 52 87 v. Jones . 94 59 T< ananl v. Rawlings 82 51 r. Flsorn 74 15 V. Williams 5, 59 29 Thompson v. Marshall . 21 97 r. Woodfine 34 19 Thorley Cattle PoodCo. v. Ma am 5 ', 19 Thorn 0. Smith . 15 7 Thorp v. Boldsworth 36, <;7 , 31 Tilde lej v. Barpei . , 36, 43, 67 13 Tilney v. Stansfield 69 53 Tiiiiins, /// re 90 87 Tomlim v. Que* d 52 6 Tottenham r. Harry . 16, 17 Traill v. Jackson . 79 50 en v. Bray 29 - g Trotti r'l < laim . 74 59 1 U 1 . Shenton . 41, 80 7-'; Turner v. ll< dn« Eord < la ' !o, • 4, 30 ■i:; r. lli viand 83 l- 0. Samson . 41 Turquand v. Wit-on . 54 67 35 Twycross v. Dreyfus 16 30 v. Grant . 27 TABLE OF CASES. xix Union Bank of London p. Ma •17, 50, 52 I'sil p. Brearley . . . .80 Vai de Tkaveks Asi iialte Co. V. London Tramways Co. ' Vale p. Oppert . . . . Vallance p. Birmingham & Midland Land Investment Corporation Vavasseur p. Krupp " Victoria " . Viiu'v, Ex parte . •ji; 34, 45 . 80 7!> W. 66, Waddeli p. Blockey . Walker v. Budden . v. Hicks . Wallis p. Hepburn v. Lichfield . Wallingford v. Mutual Society Walsall Overseers v. London and North Wc.-tcrn Railway I !o, Ward, Ex parte . v. Hall p. Pilley . v. Wyld Warner p. Murdoch Warraker p. Pryer . Watson p. Rod well Watl p. Barm it Webb p. Bast v. Mansell Webster p. Whewall W'c dderburn p. Pickering Wells p. Mitcham Gas Co. . Welsh Steam Coal Collieries Co. V < kell . West p. White ... 58, West of England Bank p. Canton Insurance <'o. . . . . West of England Bank p. Nickolls 43, Westbourne Grove Drapery Stores In re Westei n of < ianada < 'il Co., In Westman p. Aktiebolaget, &c. W'le tstone p. Dew is Whistler v. Hancock Whitaker r. Thurston White p. Bromige . v. Witt . Whittle, Ex parte . Whitley v. Honeywell . Whittaker v. Robinson . Widgi on p. Tepper Wilk's Trustees, &c, V. Jud Wilkins p. Bedford . Willcock v. Terrell Williams p. Bindon v. Bolland V. Richardson . v. Snowdon . Williamson v. London and Western Railway Co. Wilson p. Church 26, 27, 48 v. Smith Wingrove v. Thompson Winterfield r. Bradnum . Witham p. Vane . Witt v. Corcoran v. Parker Wood and Ivery p. Hamblet Wood p. Kay Woods p. Melnnes . Woolf v. Pemberton Wortley, In re Wright v. Clifford v. Redgrave . v. Swindon Railway Co. Wymer p. Dodds . North 39, 67, 10 55 15 32 41 33 42 76, 78 79 14 90 72 80 61 73 8 10 32 4 40, 43 81, 82 80, 81 2f> 31 8 9 60 59 17 24 90 til 4 28, 44 26 Yetts P. Foster . . . . 63 Yorkshire Banking Co. p. Beatson 21 Yorkshire Waggon Co. p. Newport Coal Co 31 Young p. Brassey . . . 16, 17 p. Kitcheu . . . 5, i>4 A DIGEST OF THE LAW OF PRACTICE PART I. PRELIMINARY.— THE ACTS. 1. The Supreme Court of Judicature consists of two permanent Divisions, of which A. The High Court of Justice exercises original juris- diction with certain appellate jurisdiction from Inferior Courts ; B. The Court of Appeal exercises appellate juris- diction with such original jurisdiction as is incident there- to, including all the powers and duties as to amendment and otherwise of a Court of First Instance (a). A. The High Court of Justice is a Superior Court of Record, and has vested in it the jurisdiction formerly vested in (1) the High Court of Chancery, (2) the Court of Queen's Bench, (3) the Court of Common Pleas, (4) the Court of Exchequer as a Court of Revenue, as well as a Common Law Court, (5) the High Court of Admi- ralty, (6) the Court of Probate, (7) the Court for Divorce and Matrimonial Causes, (8) the Court of Common Pleas at Lancaster, (9) the Court of Pleas at Durham, (10) the Courts created by commission of Assize, of Oyer and Terminer, and of Gaol Delivery, or any of such com- missions (b) ; but not (a) Judicature Act, 1873, s. i, and 0. LVIII. r. 5. (6) B. lti. B 2 THE LAW OF PRACTICE. (I) Any appellate jurisdiction of the Court of Appeal in Chancery or of the same Court sitting as a Court of Appeal in Bankruptcy [and no Judge of the High Court has jurisdiction to rehear an Order made hy him or another judge (r)} , nor (2) any jurisdiction of the Court of Appeal in Chancery of the County Palatine of Lan- caster, nor (3) any jurisdiction vested in the Lord Chan- <•ell.ii- in relation to lunacy, &c, grants of Letters Patent, Commissions, &c, under the Great Seal, jurisdiction of the Lord Chancellor on behalf of Her Majesty as Visitor of any College or Charitable or other foundation, nor (4) any jurisdiction of the Master of the Polls in relation to records ('/). 1 5. The Court of Appeal is a Superior Court of Record, and has vested in it the jurisdiction and powers of (1) the I. Mid Chancellor and the Court of Appeal in Chancery and the same Court as a Court of Appeal in Bankruptcy [hut whether including jurisdiction to rehear an appeal under the Bankruptcy Act, 1809, qncere (), whose deter- mination shall be final, unless special leave to appeal to the Court of Appeal be given by such Divisional Court (q). 5. 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 : — The said Courts respectively, and every judge thereof, shall give such effect as the Court of Chancery would have formerly given to every equitable estate, right, or ground of relief, alleged by any plaintiff (r) or defendant (s) ; and shall have power to grant to any defendant in respect of legal or equitable rights all relief properly claimed by his pleading against the plaintiff or against any other person duly served with notice in writing and thereby deemed a (/,•) App. Jurisd. Act, 187(5, s. 14. (/) Credit Fonder of Mauritius v. Paturau, 35 L. T. 869. (7/1) J. A. 1873, s. 19. (n) Walsall Overseers v. Loudon and North Western Railway Co., 4 App. 30. (o) Bidder v. North Staffordshire Railway Co., 4 Q. B. D. 412, following Rhodes v. Airedale Draining Commissioners, 1 C. P. D. 402. (p) Clarke v. Roche, 36 L. T. 727. lq) S. 45, and sec Appleford v. Judkins, 3 C. P. D. 4S9 ; Barton v. Titchmarsh, 49 L. J. Ch. D. :">7'> ; ami on extent of jurisdiction of Court of Appeal in appeals on criminal cases sec s. 47, Re;/, v. Steel, 2 Q. P>. D. 37 ; R>n. v. Fletcher, 2 Q. B. D. 43 ; Blake v. Beech, 2 Ex. D. 335 ; Mellor v. Denham, 5 Q. B D. 467. (r) S. 24, sub-sec. (1). (s) Do. (2). See Mostyn v. West Mostyn Coal . 120, 2 A].p. Ca*. 439 ; Williams v. Snowdon, W. N. 1880, 124. [v) \>«. (:,). (tr) Houseman v. Houseman, 1 Ch. D. 535. (X) Oroide v. Russell, 4 C. P. I). 186. (y) Wright v. Redgrave, 11 Ch. D. 24. As to discretion of Court, see Photpha.tr, Xarfi'/r Co. v. Molleson, 1 App. C. 780 ; Dawkins v. Prince Edward of &uee- Weimar, 1 Q. J',. D. 499 ; and generally Garbutt v. Fuweus, 1 Ch, l». 155; Fraser v. Burrows, 2 <,>. li. D. 621; Blcuitt v. howling, W. N. 1875, 202. As to proceedings against a company pending a winding- up petition, see In re People's Garden Co., 1 Ch. D. 41 ; Kingchurch v. People's Garden Co., 1 C, I'. I». 45. '-) S 24 (7 . i„ ] Eden ■■ \<>i.'h, 7 Ch. D. 781 ; Hedlep v. Pates, 13 Ch. D. 498. (b) Ldmondnv. Attorney General, 47 L. J. Ch. D. 345. INJUNCTION. RECEIVER. 5 administration action the general administrator of an intestate (c). 6. All legal and other remedies for the recovery of a chose in action shall pass to the assignee by a proper assignment (d), hut it does not follow e converso that a plaintiff can necessarily recover damages from the assignee for default of the assignor (e). 7. An injunction may be granted by an interlocutory Order, where it appears just or convenient, and whether the estates claimed are legal or equitable (/) or partly legal and partly equitable (g). The jurisdiction of the Court herein is practically unlimited. Thus, the assign- ment of a special penalty to a new statutory offence does not take away the remedy by injunction (h). And the Court can restrain an unfit or incompetent arbitrator (i) and the publication of a trade-libel, semble, even where not found such by a jury (J). But semble, it will not usually, on interlocutory motion, restrain an advertise- ment containing false representations (k), though it has power to do so, as where the matter has been found libellous by a jury (I), or where it concerns a sale ordered by the Court (m). Notice should be given of motion for an injunction (n). 8. Under similar circumstances a receiver may be appointed (o), but where such appointment is sought by action the writ of summons must be indorsed accord- ingly (p). But a receiver may be appointed even before service of writ in view of impending bankruptcy (<{). Where the risk is immediate the plaintiff may be appointed interim receiver, even without security, as for fourteen (c) Dowdeswcll v. Dowdeswell, 9 Ch. D. 294. {d) S. 25 (6). (e) Young v. Kitchen, 3 Ex. D. 127 ; Schroder v. Central Bank of London, 34 L. T. 735. (/) S. 25 (8). (g) Pease v. Fletcher, 1 Ch. D. 273. (A) Cooper v. WMttingham, 4:i L. T. iti. (t) Beddow v. Beddow, 9 Oh. D. 39. (j) Thomas v. Williams, 43 L. T. 91 ; 14 Ch. D. 86 i. (k) Thorley Cattle Food ( 'o. v. Massam, G Ch. D. 582. (I) Saxby "v. Easterbrook, :i C. P. D. 339. (m) Dean v Wilton, 10 Ch. D. 136. (n) Hennessy v. Jlohman, Osborne and Co., W. N. 1877, 14. (o) S. 25 (8). (p) Colebourne v. Colcbmirne, 1 Ch. D. 690. ( 3 ) H. v. H., 1 Ch. D. 276. 6 THE LAW OF PRACTICE. days, or until one is appointed under reference to Cham- bers {r). But a party to an action should not generally be receiver without the assent of the other side (s). Yet an unpaid vendor has been appointed receiver to a Com- pany without security or salary (t). One appointed " on giving security" is not receiver until it is given (u). An interim manager has been appointed in a foreclosure action brought by debenture-holders against a Com- pany (v). The appointment of a receiver by a judgment creditor without any writ of elegit is a delivery in execu- tion of equitable property (to). Where an action is pending in one Division application for a receiver should be made in that Division (x). 9. The granting of an injunction or appointment of a receiver may be unconditional or upon terms (?/). Gene- rally, it may be said that the old principle is enlarged but not altered (z). 10. Generally, the rules of Equity shall prevail (a). Hence, in Common Law Divisions, an order for changing a solicitor will be without provision for payment of his costs (b). The causes and matters specially assigned to the Chancery Division comprise (inter alia) — (1) administra- tion, (2) partnership and accounts, (3) redemption and foreclosure of mortgages, (4) portions, (5) sale of property subject to charges, (6) trusts, (7) rectification or cancel- lation of written instruments, (8) specific performance, (9) partition or sale, (10) care of infants and their estates (c). , 4. On appointment of receiver or manager on application of an onpaid creditor of a railway company, sec In re Manchester ,t- Milford Railway Co., Ex parte Cambrian Railway Co., II Oh. D. 645. (a) 8. 25 (11), and see Atherley v. Harvey, 2 Q. B. D. 524. b) Orant v. Holland, 3 C. P. P. 180. (c) S. 34. CHANCERY DIVISION. — INFERIOR COURTS. 7 (1). Where a plaintiff sues as administrator knowing that another claims to administer, and his letters of administration are afterwards revoked, he loses his costs (d). (7). Where a defendant in another Division relies on an equity to set aside a deed, such Division has juris- diction so far as is necessary to give effect to his defence («). (9). In such an action an Order for sale may he made under O. XL., r. 2 (/). The place and manner of the sale are in the discretion of the judge (g). And where the conduct of the sale is given by the Court to one person, whether a party or not, no other person may interfere (as hy advertising without authority) (h). 11. Appeals from Inferior Courts lie to Divisional Courts, whose determination is final, unless special leave to appeal to the Court of Appeal be given by such Divisional Courts (■/). This rule includes appeals from a County Court (j). Such appeal under the County Courts Act, 1875, s. 6, cannot be on a question of fact within the jurisdiction of the County Court as a Court of Common Law (k). It may be on a note required to be made at the trial of a point of law, or on a note made :it the trial without request, but afterwards asked for by the appellant, but must not be on a note made subsequently to the trial (/). And a judgment may be upheld on appeal, not on the grounds given by the County Court Judge, but on other reasons which appear in his notes (m I. The rule applies to a case reserved at Quarter Sessions (n), and to an application for a rule to Justices to state a case, such application to be made to the Queen's Bench (d) Houseman v. Houseman, 1 Ch. D. 535'. (e) Mostyn v. West Mosti/n Coal and Iron Co., 1 C. P. D. 145. (/) Burnett v. Burnett, il Ch. D. 213. See para. 81. ((/) Afacdonald v. Foster, 6 Ch. D. 193. (h) Dean v. Wilson, 10 Ch. D. 136. (t) S. 45. (,?') Crush v. Turner, 3S L. T. 595. (&) Cousins v. Lombard Deposit Bank, 1 Ex. D. 404 ; Cf. Sharroek v. London and North Western Railway Co., 1 C. P. D. 7o. (/) Seymour. v. Coulson, 5 Q. B. D. 359, and Pier point v. Carticright. 5C. P. 1). 139. (»i) Chapman v. Knight, 5 C. P. D. 30S. (») Rej. v. Swindon New Town Local Board, 49 L. J. C. L. D. 522. 8 THE LAW OF PRACTICE. Division (o). But an appeal lies without special leave from refusal of rule to show cause why writ of certiorari should not issue to bring up an Order to the Queen's Bench Division from Petty Sessions (p). And the Court of Appeal has jurisdiction in questions of law arising upon the records of the Mayor's Court (q), where there is error on the record ; otherwise an appeal lies to a Divisional Court, and from that only by special leave to the Court of Appeal (r). An appeal from a County Court (or semble, other Inferior Courts) is not taken in Chambers (*). 12. No appeal lies from an Order made by the High Court or a Judge (1) by consent, or (2) as to costs only (t), except (1) by leave, (2) where such order is not made in exercise of discretion and not accompanied by any other direction (u), (3) where the Order imposes pay- ment of costs within a given time as a condition of having a new trial (*•). 13. Orders made by a Judge at chambers not in the exercise of his discretion may be set aside or discharged, upon notice TQu. of motion] by the Judge sitting in Court or by any Divisional Court ; and this even where consent has been given on behalf of a client by such client's inadvertence, and he has afterwards withdrawn it, but gecus where he has changed his mind (w). But semble, such discharge will be granted by a Judge in another Division only where the Division to which the cause or matter is assigned is not sitting (as). No appeal from an Older lies unless (1) such motion to discharge has been made, or (2) special leave has been given by the Judge or by the Court of Appeal (y). But semble, a certificate in the Order that the case has been fully argued before the (o) Er parte Low/hottom, Re Ettershaw, 1 Q. B. D. 481. (p) Beg. ▼. Pemheiton, 5 Q. B. 1). 95. (q) Le Blanch v. Reuter't Telegram Co., 1 Ex. D. 408. \r) Appleford r. Judkint, 8 C. P. D. 489. («) William* v. Bindon, W. N. 1876, 16, not following Amies t. Clark, W. .V. 1875, 230. (*) B. 19. Bee para. 103, Pt. V. (u) Witt v. Corcoran, 2 Oh D. 69. C) Mitropolitan Amjlum District v. Hill, 5 App. Cas. 582. (w) Holt v. Jesse, S Cb. D. 177. (x) Campbell v. Fairlie, W. N. 1880, 17. y B, 60. ORDERS. COSTS. 9 Judge at Chambers = special leave (z). But no appeal lies from an interpleader Order made at Chambers (a). 14. The Court or Judge may (1) by consent, or (2) in cases of prolonged, scientific, or local investigation, if con- venient, at their or his discretion (//), on terms, at any time order any question or issue of fact or question of account, or of fact and account inextricably mixed (c), or any question which could be referred compulsorily to a Master under the Common Law Procedure Act, 1854, s. 8, or other issues accompanying a question of account (d), but not the action itself (e), to be tried by an Official or a Special Referee (/), whose report (unless set aside) is equivalent to a verdict (g). And with respect to pro- ceedings before Referees and their reports, the Court or Judge has similar powers as with respect to arbitrators (//). In cases of arbitration, it is desirable that, where the award is made a rule of Court, submission to the arbitra- tion should generally be made so also (i). Even an issue involving personal character may but rarely should be compulsorily referred (k). 15. No plaintiff who recovers a sum not exceeding £20 in an action in the High Court founded on contract or MID if founded on tort, shall be entitled to costs unless (1) sufficient for bringing the action in the High Court is certified on the record, or (2) the Court or Judge allow costs, or aemble, the relief sought exceeds the original jurisdiction of the County Courts (/■. (z) Murr v. Cooke, 34 L. T. 751. [a) Dodds v. Shepherd, 1 Ex. 1). 75. But see, per contra, Witt v. Parker, 25 W. R. . r >l s ; Mc Andrew v. Barker, 7 Uh. 1>. 701. See para. 20. (6) Saxby v. Gloucester Watjon Co., W. X. is.^0, '28. (c) Ward v. Uall, W. N . 1880, 0!). (d) Ward v. PiUey, 5 Q. B. L>. 4'27. (e) Pontifex v. Severn, 8 C^. It. D. 295 ; iMngman v. Etust, 3 C. F. P. 142; Bragintonv, Yates, W. N. 1880, 150. (/) S. 57. (.7) S. 58. (h) S. 59. (i) Jones v. Jones, W. N. 1880, 183, Ter Jcssel, M. R. (k) Hach v. Boor, 49 L. J. 0. L D. 005. (I) S. 07 embodying County Courts Act, 1S67, s. 5. As to actions foumt. •>. 15, U). Also /'» re Wtxlboume drove Drtipsry Co., 5 I L. D. 248, 86 L T. 139. INFERIOR COURTS. — FORMER PROCEDURE. 11 debts and liabilities proveable, valuation of annuities, and future and contingent liabilities, as in Bankruptcy (w). But an executor is not a secured creditor in virtue of Ins right of retainer (x). 19. Interlocutory and other proceedings in a cause or matter shall be taken generally in the Division to which such cause or matter is for the time being attached {y\. Thus, an Order charging wilful default against an executor may, on proper case shown, be made during the progress of an administration action (z), but only where this is justified by the pleadings (a). 20. A cause or matter assigned to a wrong Division may ( 1), on summary application at any stage by motion on notice (6), be transferred or retained at the discretion of the Court or Judge (c), or (2) an action may be trans- ferred from a Common Law to the Chancery Division, with the consent of the Lord Chancellor, by an Order at Chambers of any Common Law Judge, even one of another Division (d). 21. Forms and methods of procedure formerly in use and not otherwise provided for by the Acts or Rules may continue to be used (e), and where there was variance in the old practice between Common Law and Chancery, the more convenient one is to prevail (/). (to) J. A. 1875. s. 10. ix\ Lee v. NiUtaM, 12 Oh. D. 61, and see JJudjson v. Fox, In re I/cdgnv.-i, 9 Oh. D. 673. (y) J. A. 1875, s. 11 (1). (s) Job v. Job, 6 Ch. 1). 562. (a) Stayer v. Murray, 8 Ch. D. 424. (6) Humphreys v. Edwards, ■)"> L J. Ch. D. 112. (c) J. A. 1875, s. 11 (2), and see O. LI. r. 1, 1 a, 2, 2 a, para. 117, 1 18. (d) llilliiitiu v. Mayhem, 1 Kx. 1). 132. (e) J. A. 1875, s. 21. See Laming v. Gee, \V. N. 1878, 240. (/) Neivbijyiit'by-tke-Sta Gas Co. v. Armstrong, 13 Ch. 1). 310. PART II. WRIT.— CLOSE OF PLEADINGS. 1. An action in the High Court of Justice (a), including a suit formerly " commenced by bill or information in the High Court of Chancery " (6), is commenced by a Writ of Summons indorsed before it is issued (c), with a statement of the general (d) nature of the claim made (e), or of the relief or remedy required in the action, and specifying to which Division the action is intended to be assigned. The indorsement may, by leave of the Court or Judge, be extended by amendment (/) to include such substantial object of the action as an injunction or receiver ' Ch. D. 540. i J. r. '.',, and as to what is or is not within the terui "action," see It. rt Phillip* and UtlL, 1 Vj. li. D. 278 ; Dtlmar v. PreemantU, 3 Ex. i). 587. WRIT OF SUMMONS. 13 giving credit for any payment or set-off (j). Semble, the test of sufficiency of such particulars, is that they " enable the defendant to satisfy his mind whether he ought to pay or resist " (k). And the indorsement (2) shall state the amounts claimed respectively as debt or demand, and for costs, and further that proceedings will be stayed upon payment within four days after service, or time allowed for appearance where the writ is not for service within the jurisdiction (I). B. In all cases of ordinary account, where the plaintiff desires in the first instance to have an account taken, the writ of summons shall be indorsed with a claim that such account be taken (ra). 4. A writ of summons issued out of the Central Office shall be indorsed (n) with the address of the plaintiff, and (if suing in person) his occupation, and with the name, firm, or place of business of bis solicitor (if any), and of the principal solicitor (if any) for whom such solicitor is agent, and if the place of business of such solicitor (or plaintiff suing in person) be more than three miles from Temple Bar with an " Address for Service " not more than three miles from Temple Bar. If the writ of summons is issued out of a District Registry there shall be, in addition to the plaintiff's and solicitor's (and principal solicitor's &c.) address, an "Address for Service" within the district [to which notice of appearance by the defendant shall be sent (o)] , and where the defendant does not reside within the district, a second " Address for Service " not more than three miles from Temple Bar. 6. A concurrent writ (p) or writs may be issued, within twelve months after the issuing of the original writ, bearing teste of the same day as the original writ, sealed with the word " concurrent," and date of issue, to (j) 0. III. r. fi, Cf. 0. LIU. it. 2, 3, and as to what is a special indorse- ment, see l'avpaiic Frires v. Dickenson, 38 L. T. 178 ; An on v. Hurutu, 41 L. T. 521. (A;) Walker v. Sicks, 3 Q. B. D. 8 ; Smith v. Wilson, 4 C. P. D. S92, 5 C. P. D. 25. (/) O. III. r. 7. (in) O. III. r. 8. (n) 0. IV. rr. 1, 2, 3a. (o) Smith v. Dobbin, 3 Ex. D. 338. {$) O. VI. rr. 1, 2. 14 THE LAW OF PRACTICE. be in force only so long as the original writ. A writ for service within, and a writ for service or whereof notice in lieu of service is to be given without, the jurisdiction may be concurrent (q). A writ shall only be in force for twelve calendar months including the day of date thereof, but may be renewed (/•) by leave on good cause shown within twelve months, or even later (s), such renewal to be for six months, and so on from time to time, but no renewal can be allowed when the original writ has been lost (J). 6. A writ of summons (1) may be served, or (2) the defendant may by his solicitor agree to accept service and enter an appearance (u), in either of which cases the solicitor whose name is indorsed on the writ, may, by written demand, be called on to declare whether such writ was issued by him or with his authority or privity (v), and if such writ has been issued without the authority of the plaintiff, the plaintiff may serve notice on the defendant and on the solicitor, the action shall be dis- missed, and the solicitor shall pay the costs of the plaintiff as between solicitor and client, and of the defendant as between party and party (w). 7. Service, wherever practicable, shall be personal (x), but leave on application supported by affidavit showing grounds (//) may be given for substituted or other service or notice in lieu of service on terms or as may seem just at discretion of the Court (z), as on a manager within the jurisdiction where the defendant is without (a), by post or otherwise with advertisement in the London Gazette or elsewhere ({b). But there can be no substituted service (i/) S < Beddmgton v. Beddington, 1 P. D. 426. (r) 0. VIII. r.'l. (*) In re J on fit, Kijre v. ('as, 46 L. J. Ch. D. 316. it) Daviesv. Garland, 1 Q, B. I). 250. 0. IX. r. 1. (v) O. VII. r. 1. (in Newbiggin-by-the-Sea 'inn Co. v. Armstrong, 13 Ch. D. 310. Nur»ev. turn ord, 13 Ch. D. 764. x 0. IX. r. 2. I//) o. X. Watt v. Bamrtt, 3 Q. B. D. 183, 363, and see Hartley v. hilkt, 35 L T. 706. i o'.W/ v. Claton, (i; L. J. Q. B. 191. i// Cool v. Dey, 2 Ch. L>. 218 ; Rafael v. Ongley, 34 L. T. 124 ; Caper w. Brewer, 2i W. Ji. 10 ; Whitley v. Honeywell, 24 W. li. 851 ; Crane v. SERVICE. 15 where there is no person or corporation on whom original service could lawfully be made (c). Service on husband is good service on wife when both are defendants, unless otherwise ordered. Service on the lather, guardian, or (if none) on the person with whom an infant resides, or who has care of the infant, and on a lunatic's committee or (if none) on the keeper of the asylum or other person in charge of him (d), or on the person with whom a person of unsound mind, &c. resides or under whose care such person is, shall be, unless otherwise ordered, good service. Where business is carried on in the name of a firm of more or apparently more than one person, service on one or more of the partners or at the principal place, within the jurisdiction, of the partnership business of any person having at the time of service the control or management of the partnership business there, shall be, subject to Rules of Court, good service on the firm or on the one person carrying on business in the name of the firm. But service on a director of a Company is nut good service on the Company, if they keep a secretary (e). Service may be made in any manner provided by Statute for service on any body or number of persons, corporate or otherwise. In an action to recover land, service may, if necessary in case of vacant possession, be made by posting a copy on the door of the dwelling-house or other conspicuous part of the property (/). Indorsement of date of service shall within three days be made on the writ in case of personal but not of substituted service (g). 8. Service out of the jurisdiction of a writ upon a British subject, or notice upon a foreigner (h) or foreign corporation having no place of business in this country (i) [including a summons taken out by a liquidator under Jutlion, 2 Ch. D. 220 ; Bellahy v. Grant, W. N. 1S76, 6 ; Bank of White- haven \. Thompson, W. N. 1877, 45; Hamilton v. Varies, W . N'. JS30, 82. (c) Sloman v. New Zealand (Oovernorof), 1 0. P. 1). 563. (d) Thorn v. Smith, W. .\. 1S79, 81. (e) Lawrenson v. Dublin Metropolitan Junction Railway Co., W. N. 1877, 149. (/) 0. IX. it. 3, 4, 5, 6a, 7, 8. (a) Bymond v. Croft, 3 Ch. D. 512. (/() Whether in Ch. or C. L. Division. Padley v. Camphausen, 10 Ch. D. 550. (i) Scott v. Royal Wax Candle Co., 1 Q. B. D. 404 ; Wcstman v. Aktiet*>- layit Bkmana Mekanuka Snickerefabrik, 1 Ex. D. 237. 16 THE LAW OF PRACTICE. a winding-up (j)] may be allowed at the discretion of the court or a judge, on an original party or third person (A;), subject to the following conditions : — A. ( 1 round of action (/). 1. When the subject-matter is property situate within the jurisdiction (m), or any act (»), deed, will, or thing affecting such property. 2. When a contract made within the jurisdiction is Bought to be enforced or rescinded, dissolved, annulled, or otherwise affected (o), or relief is demanded for the breach thereof (p). 3. When there has been within the jurisdiction a breach of a contract, wheresoever made (q). 4. When any act or thing sought to be restrained or removed, or for which damages are sought to be reco- vered, was or is to be done, or is situate within the juris- diction. B. Particulars (r). The application must be supported by affidavit, intituled, " In the [contemplated] action, and in the Judicature Act " (.s), or otherwise by evidence show- ing (1) where the defendant may probably be found, (2) whether he is a British subject, (3) what are the grounds of the application (t). C. Special Particulars as to A 2 and 3 («). The judge in exercising his discretion shall have regard to (1) the (j) In re British Imperial Co., 5 Ch. D. 749. (k) Swunxm Shipping Co. v. Duncan, 1 Q. 15. D. 644 ; In re Luckie, W. N. 1880, 12. I, o. XI. r. 1. 1 [in) And therefore not below low-water mark ; Harris v. Otvners of " Frcmconia,' 2 C. I'. D. 173. (70 i.e., physical act, not e.g., a .statement in the nature of slander of title, Coney v Arnott,, 2 C. 1'. I>. 24. o, Tottenham v. Barry, 12 Ch. D. 797; //arm v. Fleming, 13 Ch. D. 208. a lut is or is not Buch a breach, see (.'res well v. Prker, 11 Ch. 1). 801, Kor conflicting contracts within and without the jurisdiction, see Norton v. Florence Land .(• Public Works Co., 7 Ch. D. 332. On conflicting jurisdiction of English and foreign courts, where both parties are in England, ■ee Buenot Ayret <<• Ensenada Port Raihoay Co. v. Northern Railway Co. of Buenos A'jr-x, 2 «.,>. 1'.. 1>. 210. q) Where one party is a foreign government, see Twycross v. Dreyfus, 5 Ch l>. • 05. ir ; 0. XI. r. 3. Y', ii.n) v. Bratsey, 1 Ch. I). 277. Qu. whether evidence other than affidavit in admissible I (t) Credit Australian Gold Mi/tiny Co. v. Martin, 5 Ch. D. 1. (u) O. XI. r. la. SERVICE OUT OF JURISDICTION. — APrEARA^ T CE. 17 amount or value of the property ; (2) the existence in Scotland or Ireland, if the defendant reside there, of a local court of limited jurisdiction having jurisdiction in the matter (v) ; (3) the comparative cost and convenience (ir) of proceeding in England or in the place of the defendant's residence : which particulars, and such others as he may require, shall he stated in an affidavit. The Order giving leave shall limit a time for appear- ance to a writ of summons or third party notice under O. XVI. r. 18 (x) according to circumstances (?/), and may provide for service of interrogatories and issue of in- junction applied for, ex parte (z). The Common Law form of notice in lieu of service is more convenient than the old Chancery form (a). 9. A defendant shall appear in London at the Central Office (b), unless the writ issues out of a district registry, when, if he neither resides nor carries on business within the district, he may (c), and, if he resides or carries on business there, he must (d) appear in the District Registry. Appearance shall be by delivery to the proper officer of a memorandum containing the names of all defendants in the case who appear at the same time, and by the same solicitor (c), and of a duplicate memorandum, to be sealed and returned as evidence of appearance (/). And where the defendant resides and is served without the district, notice of appearance, accompanied by the sealed duplicate, must be given or sent the same day to the " Address for Service " within the district (g). The rules as to place of business and "Address for Service " of a defendant ap- O) See Woods v. Mclnnes, 4 C. P. D. 67, 27 W. R. 49 ; McPhail t. Lowder, 48 L. J. Ch. D. 415. (w) Woods v. Mclnnes, 4 C. P. D. 67 ; Crcswcll v. Parker, 11 Ch. D. 601 ; Tottenham v. Barry, 12 Ch. D. 797. (x) Swansea Shipping Co. v. Duncan, 1 Q. B. D. 644. (y) 0. XI. r. 4. (z) Young v. Prasscy, 1 Ch. D. 277. (a) Bustros v. ttustros, 14 Ch. D. 849. (b) 0. XII. rr. 1, la. (c) Do. r. 3. (d) Do. r. 2. (e) Do. rr. 6 b, 13. (/) Do. r. 6 b. (g) Smith v. Dobbin, 3 Ex. D. 338. Rule 6b, subsequent to this case, does not sav which "Aldress for Service" is intended where there are two under 0. XIV. r. 3a. • 18 THE LAW OF PRACTICE. pea ring in person or by a solicitor are similar to those which regulate the indorsement of a plaintiff's writ of summons (It). A defendant may appear at any time be- fore judgment, but if after the time limited for appear- ance, is not, unless by leave, entitled to extension of time for defence or any other object (i). A partner, whether sole or one of many, shall appear individually, but the subsequent proceedings continue in the name of the firra(j). In an action for recovery of land, (1) a defendant in possession by his tenant shall so state in his appearance, but need not in his statement of defence plead his title, unless his right or some relief claimed by him is equit- able (k) ; (2) a person not named in the writ may be let in by leave on application, supported by affidavit (/), to defend on appearance and notice; (3) any person may limit liis defence to part of the property, as described with reasonable certainty in the memorandum of appearance, or in a notice to be served within four days after appear- ance ( m ) . 10. On default of appearance, the plaintiff may file an affidavit of personal [not substituted (■»)] service (o), or of notice in lieu of service; and further, if the defendant is an infant, or person of unsound mind, may apply for an Order appointing a guardian ad litem, supporting such application by proof of (1) service of writ, (2) service of notice of such application after the time for appearance and six clear days before the day named for hearing the application upon the person with whom or under whose care Buch defendanl was at date of service of writ, or leav- ing such notice at such person's house, (3) unless dis poised with by leave of the Court or Judge, where an in- fant is not residing with or under the care of the father or guardian, service upon such father or guardian, or leaving at the house, as above {})) ; and thereupon — ■ (/,> S. : < : f). IV. para. 4. [i, O. XII. r. 15. (j) Do. rr. 12, 12a. (A) Do. r. 10 and 0. XIX. r. 15. ■ XII. rr. 18, 20. (m/ Do. r. 21. (n) l>ym<,.,d v. Croft, 3 Ch. D. 512. (o) O. XIII. r. 2. (p) Do. r. 1. DEFAULT OF APPEARANCE. 19 A. On a writ specially indorsed (q) may sign final judgment against such defendant or defendants as shall not have appeared (r) for debt or claim, interest up to date of judgment, and costs, suhject to variation, as the Court or Judge may think just: B. On a writ not specially indorsed, hut claiming a deht or liquidated demand (sj, may without delivering a statement of claim file an affidavit of service or notice and statement of particulars of claim, and after eight days enter final judgment for the sum indorsed and costs: C. On a writ claiming goods and (unliquidated) damages or either of them [t), may without delivering statement of claim enter interlocutory judgment ; and the value of the goods and damages or either of them shall he ascertained hy a writ of inquiry or otherwise, as the Court or a Judge may order: D. In an action for recovery of land (w), may enter judgment for recovery of possession of the land [or of the part to which the defence of any defendant who has ap- peared does not apply], and may proceed as under A. B. or C. respectively on any further claim (if any) indorsed for mesne profits, arrears of rent, or damages for breach of contract (r) : E. In an action assigned by the Judicature Act, 1873, s. 34, to the Chancery Division, or not specially pro- vided by the Rules in Order XIII. (w) may (1) after filing proper affidavit of service, and (2) after two char days' notice of motion, set down the action on motion for judg- ment. . Where the writ has issued out of a District Registry, and the defendant having the option of appearing in the District Registry or at the Central Office in London has failed to appear (.r) [or failed to send notice of appear- ance to the " Address for Service" in the district (y)], the (. (t) Do. r. 6. (m) Do. r. 7. (e) Do. r. 8. (w) Do. r. 9. (•■) Do. r. 5a. (y) Smith v. Dobbin, 3 Ex. D. 338. 20 THE LAW OF PRACTICE. plaintiff shall not enter judgment until after such time as a letter posted in London on the previous evening, in due time for delivery on the following morning, should have reached the defendant. 11. On appearance to writ specially indorsed, the plain- tiff may, on affidavit made [but not necessarily before the granting of a summons to show cause (z) ] by any person who can swear positively to the debt or cause of action, verifying the cause of action, and stating that in his be- lief there is no defence to the action, call on the de- fendant (a) [including a defendant corporation (6), but not a feme covert (c)] to show cause why the plaintiff should not be at liberty to sign final judgment, a copy of which affidavit shall accompany the summons or notice of motion returnable not less than two clear days after service (d). The defendant may show cause (e), (1) by offering to bring the sum into Court, which offer however does not carry the right to defend as of course (/), or (2) by affi- davit, in reply to which the plaintiff may by leave file a counter-affidavit [g), but not as of right (h), or (3) " other- wise/' and necessarily so where the defendant is a corpo- ration (i). But the Court may still empower the plaintiff to sign judgment, if satisfied that a defence would be for the mere purpose of delay (j) ; or, on the other hand, if the defendant's affidavit gives grounds from which the Court may fairly conclude that there is a substantial defence, may give leave to defend unconditionally (k), or on such terms as to security or otherwise as seem just (I). And where the defendant has paid money into Court and then obtained final judgment of a Divisional Court, he is en- Cz) Br>jn v. Cooper, 40 L. T. 29. a) 0. XIV. r. la. ib) Shdford v. Louth and East Coast Railway Co., 4 Ex. D. 317. (<• Ortner v. Filzgibbon, 43 L. T. 60. (d, o. XIV. r. 2. (e) Do. rr. la., 3. (/; Crump v. Cavendish, 5 Ex. I). 211. .', Davit v. 8penee, 1 C. P. L>. 719; Girvin r. Orepe, 13 Ch. D. 174. I, Rotheram v. Priest, 41 L. T. 558. i Muirhead v. Direct United State* Cable Co., 27 W. R. 708. \j) Lloyd! t Banking Co. v. OyU, 1 Ex. D. 20-2. (k) Do., and Runnaclex v. Mcxquita, 1 Q. B. D. 416. [I 0. XIV., r. 6, ami see Rap v. Barker, 4 Ex. D. 279 ; Oriental Bank- vng Co. v. Fitzgerald, W. N. 1880, 118, SPECIAL INDORSEMENT. 21 titled to return of the money, even though the plaintiff has given notice of appeal (to). But where leave to defend has been given, appeals are not encouraged (n). Semble, not equally so, where leave is refused (o). Generally, leave to defend is only refused where there is no doubt, and the defendant has clearly not even a " plausible " de- fence (p). But where the defendant, without showing an absolute defence, merely discloses facts deemed sufficient to entitle him to defend, as e.g. raising a question whether a release was by way of escrow (ry), or that there are rea- sons for interrogating the plaintiff (r), the Court has dis- cretion as to giving leave (s). And a claim to bring a counter-claim does not necessarily carry with it leave to defend (t). Where the defendant sets up a defence as to part, the plaintiff shall have judgment as to the undefended part on such terms as the Judge thinks fit, and the defendant may be allowed to defend as to the residue (u) without being compelled to pay the part admitted to be due as a condition precedent of being thus allowed to defend (v). And one defendant having a good defence may be permitted, and any other defendant, not having such defence, may not be permitted to defend; in which case final judgment may be entered and execution issued against the latter without prejudice to the plaintiff's right of proceeding against the former (w). 12. Where the writ is indorsed under O. III. r. 8 (x), with a claim that account be taken, unless the defendant appears, and by affidavit or otherwise satisfies the Court or a Judge, that there is some preliminary question to be tried, the Order for account shall be forthwith made (y) (to) Yorkshire Banking Co. v. Beatson (2), 4 C. P. D. 213. (tj) Papayanniv. Coutpas, W. N. 1880, 109. (o) Wallingfbrd v. Mutual Society, 5 A pp. Cas. 685. (p) Beckintjliam v. Owen, W. N., 1878, 215 ; Thompson v. Mart-hull, W. N., 1879, 213. See also WaUingford v. Mutual Society, 5 App. Cas. 685. (q) Berridje v. Roberts, W. N. 187(5, 86. (r) Harrison v. Bottenheim, 26 W. R. 362. (*) Bay v. Barker, 4 Ex. D. 279 ; 48 L. J. (Ex.) 569. (t) Anglo- Italian Bank v. Daiies, 38 L. T. 197. (u) 0. XIV., r. 4. (v) Demi's v. Seymour, 4 Ch. D. SO. (w) 0. XIV. r. 5. (a-) See para. 3 (y) 0. XV. r. 1. 22 THE LAW OF PRACTICE: on application by summons after the time for appearance lias expired, supported by affidavit concisely stating the grounds of claim to account (2), such Order to be so made as not to prejudice the trial of issues which may be raised by pleadings subsequently delivered (a). And in such a case, matters on further consideration as to costs may be proved by affidavit (//). 13. All persons may be joined as plaintiffs in whom tin* right to any relief claimed, and as defendants against whom any right claimed, is alleged to exist jointly, severally, or in the alternative, (scnible) where the subject li uitter is sufficiently ascertained (c). E.g. an action for libel may be brought jointly by persons not in partner- ship (<7). And where two or more persons sue on a joint claim, the defendant may set up against each individual plaintiff separate counter claims sounding in damages (e), but cannot, by way of counter claim, set up against a third person a claim for relief in one only of two incon- sistent alternatives (/). But a plaintiff can join as defen- dant to his claim, a person against whom he prays alternative relief inconsistent with that prayed against the other co-defendant (g). Judgment may be given for one or more of the plaintiffs, for such relief as he or they may be found entitled to, without any amendment, and against one or more of the defendants, according to their 1 jpective liabilities, without any amendment (h). Unless the Couri shall otherwise direct; an unsuccessful defen- dant shall be entitled to costs occasioned by joining a co- plaintiff who is not found entitled to relief (i). E.g. where a married woman sues to recover separate estate, and joins her husband as co-plaintiff instead of making him a defendant, and the defendant takes this objection, the 0. XV. r. 2. Q ,11, v. Webster, 12 Cb. I). 771. th Beaney r. Elliott, W. N. 1880, 09. (c) Wil on ire Ads, p. 187, quoted in Smith v. Richardson, i C P. D. 1 16, uid Ci 0. XVII. r 1, para. 25. (d) Booth v. Briscoe, 2 <-,>. B. I). 496. (e) Manchester, Sluffidd, and Lincolnshire Railway Co. v. Brooks, 2 Ex. I). 243. (/) Evans v. Buck, 4 Ch. D. 432. (•/; ChUd v. Stevning, 5 Ch. D. 095. \h) <). XVI. rr. 1, 3. (*) Do. r . 1. PARTIES. 23 plaintiff, though successful, may be ordered to pay her costs of pleadings delivered subsequently to the taking of the objection (j). And an unsuccessful defendant is not bound to pay costs occasioned by the plaintiff having joined other defendants who are successful (/;). A plaintiff may at his option join all or any of the persons severally, or jointly and severally, liable on any one contract (I). — e.g. he may join those only who are solvent, and need not join or give notice to the others (m). — and he may join two or more persons among whom he is in doubt from which he is entitled to redress (w), nor is it necessary that each of such defendants should be interested as to all the relief, or every cause of action in- cluded in such action ; but the Court or a Judge may make such Order as may appear just, to prevent any defendant from being embarrassed or put to expense by any action in which he has no interest (o). 14. Subject to special Order of the Court or a Judge, parties beneficially interested may be sufficiently repre- sented by trustees, executors or administrators (p), but this does not include an administrator ad litem in the administration of an intestate's estate, where there is a general administrator (q), and semble, how far the bene- ficiaries may be sufficiently represented by bare trustees in redemption and foreclosure actions, depends on the particular circumstances (r). 15. Married women may sue by their next friend (s), in which case the Court has discretion as to his giving security for costs at any stage (t). By leave of the Court or a Judge not granted on a petition of course (v), a (j) Roberts v. Evans, 7 Ch. D. 830. (k) Child v. Stenning, 7 Ch. D. 413. (/) 0. XVI. r. 5. (m) Lloyd v. Dimmack, 7 Ch. D. 398. (n) 0. XVI. r. 6, and see Honduras Inter-Oeeanir Railway Co. v. Tucker, 2 Ex. D. 301. (o) 0. XVI. r. 4, and see Cox v. Barker, 3 Ch. D. 359. (p) 0. XVI. r. 7. (q) DowdesweU v. Dowdeswell, 9 Ch. D. 294. (r) Mills v. Jennings, 13 Ch. D. 049. (s) 0. XVI. r. 8. (t) Mariano v. Mann, 14 Ch. D. 419. (u) Noel v. A\~oel, 13 Ch. D. 510. This seems to alter the old practice aa stated in Daniell'a Ch. Pr. p. 164. 24 THE LAW OF PRACTICE. married woman may sue or defend without her husband, as e.g. where she is defendant, and her husband is the plaintiff's next friend (v), giving security for costs not as of course, but if required by the Court or a Judge (w). Where she sues for recovery of separate estate in Equity (.r), or under the Married Women's Property Act, 1870 (//), her husband should be a co-defendant. 16. An infant may sue by his next friend (z), who (xemble) will be the father if living and not having adverse interest (a), and may defend by a guardian ad litem. A next friend who refuses to appeal may be removed (b). An Order for costs against the next friend is personally final, unless the question be reserved (c). A lunatic may generally sue by his committee ; and a person of unsound mind by his next friend, but if found lunatic by inquisi- tion pendente lite, the action ma} r by leave be continued by the committee (d). A lunatic may similarly defend by his committee, and a person of unsound mind by a guardian ad litem (e). 17. Any two or more partners may sue in the name of their firm, and any two or more (/), or one carrying on business in the name of a firm apparently consisting of more than one person (g), maybe sued in the name of such linn. Where a writ is sued out in the name of a firm, (1) the defendant may in writing call on the plaintiff's or their solicitors to declare the names and residences of all partners, in default of which declaration all proceed- ings shall be stayed upon terms (h) ; and (2) any party to an action may apply by summons to a Judge for a statement of the names of the co-partners in the plaintiff or defendant firm (i). But the Order for such statement •). 19. Subject to the Judicature Acts and Rules, it is provided (.s), in accordance with 15 & 1G Vict. c. 86, s. 42, that a plaintiff falling under any of the five follow- ing characters may have a decree without joining or serving notice on others having similar interest : — (1) An heir, next-of-kin, residuary devisee or legatee ; (2) a legatee interested in a legacy charged on real estate. or any other person interested in the proceeds of real estate directed to be sold ; (3) a cestui que trust under a deed or instrument ; (4) one interested in the protection of property pending litigation or in cases of the nature of waste ; (5) an executor, administrator, or trustee desiring a decree against any one legatee, next-of-kin, or cestui {j) Pike v. Keene, 24 W. R. 322. See para. 53. (£) Kendall v. Hamilton, 4 App. Cas. 504. (I) See Daniell's Ch. Pr. p. 172. (m) Luke v. South Kensington Hotel Co., 11 Ch. D. 121. (») 0. XVI. r. 9. (o) Fryer v. Royle, 5 Ch. P. 540: following Warraker v. Pryer, 2 Ch. D. 109, not following Cooper v. Blissett, 1 Ch. D. 691. (p) Commissioner.* of Sewers, dr.. v. Gil/ath/, 3 Ch. D. 610. (9) O. XVI. r. 9a, and see Cluster v. Phillips, 4 Ch. D. 230. (?•) Hobba v. Reid, W. N. 1876, 95. («) 0. XVI. r. 11, c 26 THE LAW OF PRACTICE. que trust for administration of the estate, or execution of the trusts (*). The Court may, if it see fit, require parties to be added, or give the conduct of the suit to one, and may make such Order as to place the defendant on the same footing as to costs with all other parties having a common interest. Persons having a common interest but not being parties shall be served with notice of the decree, <>r of Order on further consideration (//), and be bound thereby, and may by an Order of course have liberty to attend, and may apply to the Court to add to the decree. Such service is to be made on infants or persons of unsound mind as is made in the case of a writ of summons (v). A creditor may not in an administration action without leave join any party other than the executor or administrator (w). 20. The Court or a Judge may, with or without ap- plication of either party, upon terms, at any stage, as at trial (.r) or after decree (?/), order parties to be struck out or added (z). A defendant may be struck out notwith- standing he has delivered his statement of defence {a), but have to strike out one and amend does not carry Lave to strike out another (b), nor does an Order for amendment enable the plaintiff to strike out a defendant whose interest has determined (c). Where a plaintiff >iu s for himself and other bondholders and one dissents, the dissentient should be made a party (d). The assignee of a defendant jinulcutc lite may be added (e), but an officer of a corporation cannot be added merely for the purpose of discovery (/). Nor, where an action is rightly (i. B. l-J, rules 1-6. I it) In ri Rees, Eees v. Gregory, 40 L. J. Ch. I). f>68. 0. XVI. r 12a. (w) Do. r. 12b. r) Kino v. Rudkvn, 6 Ch, D. 160. Mi, urn y.Qt in ml v. Council of Birmingham, W. N. 1880, 112. 0. XV I. r. 18, and see Vol /) See para. IS. (A) Ik Hart v. Stevenson, 1 Q. B. D. 313. (t) Norris v. Beazley, 2 C. P. D. 80, decided partly with reference to the tlieu procedure on Bills of Exchange. But it is submitted that the above principle may still be upheld. (/) 0. XVI. r. 13. (k) Wilson v. Church, 9 Gh. P. 552. (/) Ruston v. Tvbin, \\\ N. 1SS0, 19. (to) 0. XVI. r. 14. (n) Keatev. Phillip*, W. N. 1878, 186. (o) 0. L. rr. 1, 2, 3, and see Twycrosa v. Grant, 4 C. P. D. 40. (p) Eldridge v. Burgess, 7 Ch. I). 411. Ij) Ashley v. Taylor, 48 L. J. (Oh. D.), 406. (r) Vara, v. Whittaker, W. N. 1876, 17 ; Middleton v. Polloci; W. X. 1876, 250. c 2 28 THE LAW OF PRACTICE. p< r>vd, unless otherwise directed, on all necessary parties; or (2) may be served with notice on terms. And such Order for the disposal of the action may be made as seems just («s). The person served with an Order may apply to have it discharged or varied within twelve days after service, or after appointment of a guardian ad litem, where necessary (/). A sole plaintiff, on becoming bank- rupt, cannot proceed with the action, but if one of his two trustees refuse to go on, the other may have an Order of course, making the co-trustee a defendant (m). Where a plaintiff makes default in pleading and then becomes bankrupt, notice of motion to dismiss for want of prose- cution should he served on his trustee, who may have the option given him to come in and proceed with the action (v). A person may be appointed to represent the estate of a deceased insolvent and intestate plaintiff to enable the defendant to move for dismissal in default of prosecution (w), Where a sole plaintiff dies pending a suit against his trustee for breach of trust, his repre- sentatives may he allowed the benefit of a decree without being made parties (x). The death of a sole defendant is no obstacle to the appointment of an interim receiver, where advisable (//). An Order for inquiry may after the death of a sole petitioner be continued for the benefit of his representatives (.:). Where a defendant dies before service of judgment had been effected on him, leaving no personal representative, an affidavit may be filed and notice served on the widow (rder permitting him to continue proceedings, he becomes m substantive party and personally liable for costs (b). Where notice of trial is served on a defendant (.'i o. L. it. 2, 4, />, and for form of petition for Order, see Darnell's I ed. p. 9 ; and ;is to effect of Statutes of Limitations, see Briijht. v. - - ipbdl, W. N. 1880, 20. ' 0. L. rr. 0, 7. it) Jackson v. North Eastern Railway Co., 5 Ch. D. 844. Wright v. Swindon Railway Co., 1 Ch. JJ. 104. Wingroxi v. Thompson, II Ch. 0. 419. >.,„, v. Bennet, W. X. 1876, 152. / n Parker, Cash v. Parker, 12 Ch. D. 293. In n Atkins' Estate, 1 Ch. D. 82. .- A/forth v. Espinach, '■'<*'< L T. 367. Uoynton v. Boynton, 4 App. Cas. 733. CHANGE OF PARTIES. — THIRD PARTY. 29 who afterwards becomes bankrupt, notice of motion for judgment against the trustee who does not appear need not be filed (c). And where out of several defendants jointly and severally liable some become bankrupt, the action may proceed against the others, without making the trustees of the bankrupts parties, or serving them with notice (d). Where an Order nisi has been obtained charging stock of a judgment debtor, and it afterwards appears that he was dead before the Order was obtained, such Order cannot under these Rules be made absolute [e}. Nor can the assignee of a creditor proceed with a winding- lip petition; such assignment is bad for maintenance ( f)\ 22. Where a defendant is added, unless otherwise ordered, an amended writ of summons or notice shall be served on him ; and, if a previous statement of claim had been delivered, a copy of an amended statement of claim shall be delivered to him, either along with tbe service of the amended writ or notice, or within four days alter appearance (g). 23. When defendants or plaintiffs and defendants together (//) claim to be entitled to contribution, in- demnity, remedy, or relief over against a third person, or where it appears that a question in the action should be determined between the plaintiff, defendant, and a third person, or between any or either of them, on notice issued by leave and served on such person (>'), a proper Older may he made (j), where, in the discretion of the Judge, it appears that it will not tend to prejudice or delay the plaintiff (A;). It is not necessary that the whole question should be identical between the different parties (/). One defendant may defend as against the (<•) Charlton v. Dickie, 13 Ch. D. 160. (d) Lloyd v. Dimmack, 7 Ch. I». 398. (e) Fin,,, i v. Hinde, 4 Q B. D. 102. (/) lu re Paris Skating Rink ''■•., 5 Ch. D. 9.59. (.V) O. XVI. r. 15. (A.) Trdeven v. />'/-,. 7.">1 ; Horwell v. London General Omnibus ('<>., 2 Ex. i>. 365. (/) Benech w FV-ort, 1 Q. !'.. I>. 41'.' ; Swansea Shipping Co. v. Duncan, 1 Q_. D. D. 014 ; Bower v. JJartlcy t 1 Q. 13. \). i). Whether such third person on becoming a party can himself bring in sub- sequent parties, qucere (c). 25. In general a plaintiff or plaintiffs, jointly or sepa- rately (//), may unite in the same action and statement of claim several causes of action (e), (semble) where the parties are sufficiently ascertained (/), and it is not necessary that each defendant be interested in each cause of action (g), but the Court or a -Judge, on or without application of a defendant, may order separate trials ; or make other Order for separate disposal ; for amendment (if necessary) of the writ, indorsement, or statement of claim ; and for costs, wherever it appears that such causes of action cannot be conveniently disposed of together (/<). Thus, claims by or against husband and wife ma}' be joined with claims by or against either of them sepa- rately (/), and in case of antenuptial debts of the wife it is not necessary expressly to allege that assets have come (as) 0. XVI. r. 20. (//) Swansea Shipping Co. v. Duncan, 1 Q. B. D. 644. (:) McAllister v. Bishop of Rochester, 5 C. P. IX 194. (a) 0. XV!. r. 21. (b) Yorkshire JFayon Co. v. Newport Coal Co., 5 Q. B. D. 268 ; Dawson v. Shepherd, 49 L. J. Ch. 1). 529, W. X. 1880, 1 10. (c) H appeals to be virtually settled in the affirmative. See cases referred to above (6;, and others quoted therein. (d) (). XVII. r. 6. See Witham v. Vane, W. N. 1880, 108. (e) 0. XVII. r. 1. (/) Wilson's Judicature Acts, p. 1*7, quoted in Smith v. Richardson, 4 C. P. D. 116, and cf. O. XVI. r. 1, para. 13. (>/) Cox v. Barker, 3 Oh. D. 3 59 ; Child v. Stenning, 5 Ch. D. 695, 7 Cb. D. 413. 0i) 0. XVII. rr. 1, 8, 9 ; and fur examples, see liaijot v. East on, 7 Ch. U. 1 ; My cock v. Beat son, 13 Ch. D. 384 ; DesUta v. Schunk a- Co. and Pels A Co., \V. X. 1880, 96. (i) O. XVII. r. 4. 32 THE LAW OF PRACTICE. to the hands of the husband (,/). And claims by or against an executor or administrator as such may he joined with claims by or against him personally arising with reference to the same estate (A;). But such claims cannot he combined in a counterclaim as against an executor who sues only in a strictly personal character (/). Nor can claims by a trustee in bankruptcy, unless by leave, be joined with claims by him in any other capacity (m). Nor, along with an action for recovery of land, can any cause of action other than claims for mesne profits, arrears for rent, and damages for breach of con- tract, under which such land is held (n) he joined unless by leave (o) obtained before the issue of the writ (_/>), as e.g. a claim for a receiver (q). But an action for recovery of land does not include a foreclosure action (r), nor an action for " declaration of title " without claiming pos- session (s). 26. A defendant in any action and in any Division after service of a writ and before defence (<), on affidavit showing that (1) he claims no interest in the subject- matter the right whereto is alleged to belong to some third party, (2) he does not collude with such third party, (3) he is ready to bring into Court, pay, or dispose of the subject-matter as ordered (u), may apply for an Order calling on the plaintiff and third party to interplead. The decision of a Judge at Chambers in a summary manner is final under the Common Law Procedure Act,. ]8(>0, s. 17, and no appeal lies to a Divisional Court (r), but in other cases an appeal lies from an Order made on (j) Matthews v. Whittle, W. N. 1880, 43. (A) 0. XVII. r. 5. I Macdonald v. Carmgton, 4 C. P. D. 28. (ml 'i. XVII. r. 3. I»i Do. r. 2. (<,) See, for examples, Cook v. Knchmarch, 2 Ch. D. Ill ; Whetstone v. h... is, i Ch. I». 99. (},) PUcher v. Hinds, 11 Ch. D. 905. [q] AUen v. A'mnet, 24 W. R. MZ. (n TaweU v. Slate Co., ■', Ch. D. 629. (») Oledhill v. J/anltr, 14 Ch. D. 4'J'l; not following herein, Whetstane v. i„ ■;-. i Ch. I). 99. it, o. I. r. 2. (u) Bee 1 &2 Ww. IV., c. 58, s. 1. i, , Do. b. J Bee JJocLU v. Shepherd, 1 Ex. D. 75 ; Williams v. Ridvard. ton, Z') L. T. 505. INTERPLEADER. — PLEAT UNO. 33 an interpleader issue, as from any other interlocutory Order, within twenty-one days to the Court of Appeal (w)i And an appeal lies from the refusal of an interpleader Order (./;). Pending the hearing of an interpleader sum- mons the plaintiff may issue a writ and the defendant may undertake to appear (//). 27. Every pleading shall state concisely material facts, and if to support distinct claims then separately and distinctly, but not evidence (z), as admissions (a), or proof that a person is heir-at-law to one deceased (b); It shall he delivered between parties by delivery to the solicitor of a party who appears by a solicitor, or in default of appearance by filing (c), which also, in case of default, is sufficient delivery of notice of motion for judgment (d). But filing is not necessary for delivery of a summons (e) or statement of claim (/) personally served on a defendant who has not appeared. Non- appearance of a defendant does not necessarily imply that he dispenses with a statement of claim (//). A statt - ment of claim or counterclaim shall state specifically the relief claimed simply or in the alternative, and may also ask for general relief (h). But a defendant in his counter- claim may not ask for enforcement of a judgment in another Division, or in the alternative for other relief (/). Semitic, no distinction can be made, as to effect, between " Set-off" and " Counterclaim " (j). (w) McAndrew v. Barker, 7 Ch. D. 701. (at) See Attenborough v. London ,,j v. Kitchen, ■: Ex. D. 127. \w) Pvll'lH V. ,\ Vy,/ „ „ , , j (.'. 1'. D. 35. COUKTERCIAIM. — ADMISSI ON. 35 hers and others of his (x). A debt owing from the estate of one deceased, but due only after his death, can- not be set off against one due to the deceased in his life- time (y). A counterclaim which raises no new issue of fact but merely relies on facts in the claim itself will not let in fresh evidence [z). Where a counterclaim is estab- lished judgment will be given on the balance whether in favour of the plaintiff or defendant (a). 29. Any facts on which the defendant relies as sup- porting a right of set-off or counterclaim must be specifi- cally stated as such in the statement of defence (&), but it is not essential that there be a separate heading to such counterclaim (c), nor is it necessary therein to " set out" again facts already referred to in the statement of defence (d). But if the' statement of defence and counter- claim form one continuous document, it is not sufficient that the facts relied on appear in the statement of defence, if it is not made clear which particular facts therein are relied on for the counterclaim (e). Where a counterclaim brought in an Inferior Court concerns matters beyond its local jurisdiction, such Court may entertain the counter- claim only up to the amount claimed by the plaintiff (/). 30. In any pleading in an action, other than a general joinder of issue by reply or subsequent pleading if any (g), every allegation of fact is taken as admitted by the opposite party (not being an infant, lunatic, &c), unless it be expressly or impliedly (h), specifically not generally (i), nor evasively (j), denied. Thus, either party must (x) Hodson v. Mochi, 8 Ch. D. 569. ly) XewcU v. Provincial Bank of England, 1 C. P. D. 496. (2) Green v. Serin, 13 Ch. D. 589. (a) 0. XXII. r. 10 ; and see Staples v. Young, 2 Ex. D. 324 : R>!f> v. Maclaren, ■'> Ch, D. 106 ; and see further as to cases in County Courts, Blaki v. AjvpUyard, 3 Ex. D. 195 ; Potter v. Chambers, 4 C. P. D. 69 ; Chatjidd v. Sedgwick, 4 C. P. D. 383, 459. (b) 0. XIX. r. 10. (c) Lees v. Patterson, 7 Ch. D. S66. (d) Birmingham Estates <'<>. v. Smith, 13 Ch. D. 506. (e) Crowe v. Barnicot, •> Oh. D. 753. (/) Davis v. Flagstaff Stiver Mining Co. of Utah, 3 C. P. D. 228. (g) O. XIX. r. 21. (h) Do. r. 17. (i) Do. r. 20 ; anil see Harris v. Gamble, 7 Ch. D. 877 ; Beribtm v. Low, 13 Ch. D. 553 ; Green v. Serin, 13 Ch. D. 569. (J) O. XIX. r. 22, 30 THE LAW OF PRACTICE. specifically deny (if he denies) that any other party claims in a representative or other capacity, as executor, or trustee, or trustee in bankruptcy. So too, if he denies the constitution of a partnership firm (Jc), or terms of arrangement between parties (I). A denial of a particular fact ;iml of circumstances generally is insufficient (m), and a general denial accompanied by specific assertion of a particular fact puts that fact alone in issue (n). A bare denial of a contract is a denial of the making thereof, not of its legality or legal sufficiency (o). And if the defendant relies on the Statute of Frauds, he must plead such facts as render the Statute applicable (p), 31. But it is sufficient to state the effect of a material document, setting out precise words only where them- selves materia] (7), as e.g. words alleged to be libellous or glanderous (r) ; and to allege as a fact (1) malicious or other particular condition of mind of a person, without setting out the circumstances leading to the inference; (2) notice to any person, without setting out its forms or terms, unless material ; (3) a contract or relation or more than one in the alternative where implied and not arising from express agreement, without referring otherwise than generally to letters, conversations or circumstances where- in mi such contract or relation or alternative is implied ; provided that any agreement be actually pleaded as a substantive ground of action (s), and any equitable title as a defence relied on (£). A presumption of law not specifically denied by one party need not be alleged as a matter of fact by the other (/*). And the Court may make an Order as to costs occasioned by prolixity in any pleading (v) or by unjustifiable denial or non-admission in a statement of defence ((c). (4) (). XIX. r. 11. I Thorp v. Holdsworth, 3 Ch. D. 637. TUdetLey ». r. 3. («) Champion v. Formby, 7 Ch. T>. 373. [t) Foster v. Qamgee, 1 Q. B. J). 666. mder v. Hawkins, 2 . 0'J2. STATEMENT OF DEFENCE. — REPLY. 39 leave, has paid money into Court; this shall be pleaded in the defence (r), even though the greater part of the causes of action are therein denied («'), and the claim in respect whereof such payment is made shall be specified therein, but it is not necessary to specify how much is paid in respect of which items (./). Such payment must be made in the manner directed by the Chancery Funds Act, 1872, and Rules 1874, and not lodged in a district bank (?/). If made before defence, notice of payment shall be served upon the plaintiff (z). The money shall be paid out to the plaintiff, or to his solicitor on the plaintiff's written authority (a) ; and the plaintiff may accept the same, if before defence, within four days after receipt of notice, otherwise before reply, in satisfaction of the cause of action, and shall then give notice to the defendant, and may, if the sum is accepted as entire satisfaction, tax costs, and, if not paid within forty-eight hours, sign judgment for them (b). Even where the four days have been waived, the taxation of costs may still take place (c). But where the plaintiff has failed to give notice within four days, but has afterwards accepted ('/), or where he has not accepted and the defendant has after- wards substantially succeeded as to the residue (e), the costs will be in the discretion of the Court. 36. Within three weeks after the defence, or last of the defences, unless the time be extended (ee), the plaintiff may deliver a reply, either by (1) simply joining issue and thereby traversing all material facts (/) in a defence unaccompanied by counterclaim (;/) or in a defence and (v) 0. XXX. r. I. (id) Hawksley v. Bradshaw, 5 Q. B. D. 302. (x) Paraire v. Loibl, 4!t L. J. Ch. I). 481. (y) In n Smith, Hutchinson v. Ward, o" Ch. D. 692 ; Finlay v. Davit. 12 Ch. I). 7:55. (z) 0. XXX. r. 2. (a) Do. r. 3. (b) Do. r. 4. (c) Hoole v. Earnshaw, W. X. 1878, 227. (d) Langridge v. Campbell, 2 Ex. D. 2«1 ; Greaves v. Fleming. 4 C^. B. D. 226. (e) Buckton v. Higgs, 4 Ex. D. 174. (ee) 0. XXIV. r. 1. (/) O. XIX. r. 21. (,c/) Williamson v. London cC- North Western Railway Co., 12 Ch. D. 7S7. 40 THE LAW OF PRACTICE. counterclaim which pleads no new facts in its support (h) [but if the counterclaim does plead new facts, the plaintiff must deal specifically with them (?')] ; or (2) combining traverse, confession, and avoidance, of different parts (,/'). A reply may introduce new matter within reasonable limits by way of set-off or controverting state- ments made in the defence, but it must not refer to in- dependent documents, set up new claims, plead evidence or arguments, or state conclusions of law (k). 37. The defendant may join issue on the reply, but no subsequent pleadings are allowed except by leave given on terms, every such pleading to be delivered within four days after the last previous one (/). When the plaintiff has delivered no reply within three weeks and no notice of trial within six weeks and obtains no extension of time, the defendant may either give notice of trial or may apply to have the action dismissed for want of prose- cution, but cannot after the three weeks and before the close of the six apply for such relief as he maybe entitled to on admissions of fact in the pleadings (m). 38. Any party may demur to a pleading of the opposite party or to such part of a pleading as sets up a distinct ground of action, defence, set-off, counterclaim, reply \e. {)t), but not to one paragraph taken alone where, if taken along with another, it makes up a sufficient ground of pleading (o). A. writ specially indorsed and notice in lieu of statement of claim together form such a pleading as i- capable of demurrer {}>). A demurrer must state that the facts alleged do not show any ground of action, defence &c, to which the Court can give effect against the party demurring (q), and must state specifically wh( ther it demurs to the whole or to what (if any) part (h) Hillman v. Mayheio, 24 W. R. 485. , 0. XIX. r. 20. Hail v. Eve, 1 Ch. D. 341. (/•) WWwmson v. London . 280. q) 0. XXVIII. r. 1. SUBSEQUENT PLEADINGS. — DEMURRER. 4L of the pleading, and also state some ground of law. But additional grounds may be raised ore terms (r). The defence of the Statute of Frauds cannot be raised On demurrer (s), but semble the defence of the Statute of Limitations may be, whether as an original ground (t) or an additional one ore tenus (u). A defendant may com- bine a demurrer to part and defence to part in one plead- ing (r) ; and, where he has not originally demurred, may do so in an amended statement of defence to mi amended statement of claim (w). And a party may by leave (x), but by leave only (//), plead as well as demur to the same matter. Where the opposite party does not appear at the hearing, the Court may admit a demurrer without argument (z). 39. A demurrer may be set aside with costs as stating a frivolous ground or none (a). Where it is allowed on argument, the opposite party shall generally pay costs (b) but not necessarily, as where the plaintiff charges fraud against a demurring defendant (c). Where it is over- ruled, the demurring party shall generally pay costs (d)) but any objection to the over-ruling Order may, without being introduced in the next subsequent pleading, be introduced in argument (e). Such over-ruling Order is not interlocutory so as to require special leave of the Court of Appeal for appeal beyond twenty-one days (/); When the demurrer is over-ruled, the demurring party may still plead on obtaining an order on terms (g) which is granted "almost of course" (h). Where a plaintiff (r) 0. XXVIII. r. 2. (s) Catling v. King, 5 Ch. D. 660. (t) Noyes v. Crawley, 10 Ch. D. 31. (u) Dawkins v. Lord Penrhyn, 6 Ch. D. 318. (v) 0. XXVIII. r. 4. (to) Powell v. Jewsbury, 9 Ch. D. 34. (x) O. XXVIII. r. 5. (i,) Hogg v. DarUy, 47 L. J. Ch. D. 567. (z) Turner v. Samson, \V. N. 1S76, 163. (o) 0. XXVIII. r. 2. (In Do. r. 8. (c) Duckett v. Gowr, 6 Ch. D. 82. (d) 0. XXVIII. r. 11. (e) Johnasson v. Bonhote, 2 Ch. 0. 208. (/) Trowell v. Shentoiii S Ch. D. 318. (g) 0. XXVI! I. r. 12. (A) Bell v. Wilkbuon, W. N. 1878, 3. 42 THE LAW OF PRACTICE. neglects to pay costs of an unsuccessful demurrer, lie is liable to have his action dismissed (?'). 40. Amendment may be made A. without leave, (1) of the statement of claim once before reply or close of time limited therefor, or if no defence, within lour weeks after the last appearance (j) : (2) of set-off or counter claim of defendant before reply or close of time allowed him for pleading to reply, or, if no reply, within twenty-eight days after defence (k). And the opposite party may (1) apply within eight days to have such amendment disallowed or allowed on terms as to costs (I), including security for costs if a new case is thereby raised (m), but how far an " entirely new case " is allowed, qiicere (n) ; (2) apply for leave to plead or amend his former pleading on terms as to time &c. (o). Where the defendant neither pleads nor amends, the amendments will be taken as admitted, and his original defence will stand as a defence pro tanto (p). But where the plaintiff has amended his statement of claim, the defendant should deliver a new defence or amend, and so on, totles quoties (q). B. icitJi leave, at any stage of the proceedings, as at the hearing (r), but in general to be within fourteen days («) and on application ordinarily to be by summons (t) of statement of claim, defence, or reply (w). E.g. a de- fendant may be allowed, on terms, to substitute a separate and amended defence in lieu of a joint one (v) without filing any affidavit of grounds, or to introduce particular ti) White v. Bromige, 38 L. T. 314. (j) 0. XXVII. r. 2. (k) Do. r. 3. (/) Do. r. 4. {mi Sortluiiujiton Coiil, Iron <£• Woyon Co. v. Midland Wagon Co., 7 Ch. : Bee remarks of Jeseel, M. It. (iii headnote to Budding t. Murdoch, 1 Ch. D, l-_\ in Be St. Nazaire Co., 12 Ch. D. 92. 0. XXV1J. r. 5. (p) Boddy v. Wall, 7 Ch. D. 164. [q) Durling r. Lawrence, 4/) : E. any other remed}', he may, without notice of setting down (r), set down the action on motion for judgment (w) but so as to give two clear days' notice of such motion lor (I) 0. XXIX. r. ]. (m) Whistler v. Eandeock, 3 Q. B. D. 83 ; Wallis v. Hepburn, 3 Q. B. B. m d : Kimg v. Davenport, 1 (). B. J>. 402. (u, Burke <■. Booney, 4 C. I\ D. 226. //<-/< inbotham v. Aynsley, 1 Ch. D. 288. /■! Lagrangt •>. Mc Andrew, i Q. B. I'. 210. ('/) Wright v. Swindon, Marlborough, ), not bond fid', premature (q), or on any other ground (r). C. Whether a Judge can now order an interrogatory to be struck out as " objectionable" mero motu and with- out any application (s), qucere (t). An interrogatory imputing indictable matter is not necessarily scandalous, but the party's remedy is not to answer it (u). 51. An affidavit in answer to interrogatories (in general to be printed, if exceeding ten folios) is to be filed within ten days, or further time as allowed by the Court or a Judge [v), but semble any interrogatory may be left un- answered by a party who objects to it on a point of law (w). If not answered, or answered insufficiently, the party in- terrogating may apply, [in general by summons (x)] for an Order requiring an answer, or further answer (y), and in the latter case specifying to which interrogatories, or parts of which such further answer is required (z), the answer to be by affidavit or rica voce, as directed. Semble, where a Judge refuses such an Order at Chambers, an appeal therefrom cannot open up fresh objections (a). Subject to the discretion of the Judge, the whole of the answers to interrogatories is not compelled to be put in evidence (b). 52. On application ex parte (c) at any time during any (p) For examples of what is or is not irrelevant, see Mansfield v. Childer- house, 4 Ch. 1) 82; Rowrlijfe v. Leigh, 6 Ch. D. 256; Allhusen v. Labou- chere, 3 Q. B. IX 654 ; Sheward v. Lord Lonsdale, 5 C. P. D. 47 ; Bade v. Jacobs, 3 Ex. D. 335 ; West of England Bank v. Nickolls, 6 Ch. I>. 613 ; Saunders v. Jan.-;. 7 Ch. D. 435 ; Julius v. Janus, 13 Ch. D. 370 ; Lyon v. TweddeU, 13 Ch I). 375. (q) See Saundersv. Jones, 7 Ch. D. 435. (r) 0. XXXI. r. 5a. (Nov., 1878); and see Gay v. Labouchere, 4 Q. B. I). 206. (s) Athcrleyy. Harvey, 2 Q. B. D. 524. (t) Gen. puc original Rule 5 (last part) with amended r. 5a.; and see remarks of Fry J., in Crackncll v. Janson, 11 Ch. D. 13. (it) Fisher v. Owen, 8 Ch. D. 645. (v) 0. XXXI. rr. 6, 7, 8. (w) ftrnti v. Berg, 36 L. T. 471. (z) Chesterfield Colliery v. fitodfc, W. X. 1876, 204. (y) 0. XXXI. r. 10. (z) Anstey v. .W. 044, explaining Ross v. Gibbs, L. R. 8 Kq. 522. o/) Sladev. Tucker, 14 Ch. I). 824. (z) Hutchins v. Glover, 1 Q. B. D. 138. (a) Bustros v. White, 1 Q. B. I). 428. (b) O. XXXI. r, 12. *'an a Judge in his discretion require an affidavit ! See Johnson v. Smith, 36 L. T. 741. (c) 0. XXXI. r. 12. (d) See case quoted under (e). D 2 52 THE LAW OF PRACTICE. the plaintiff's control, and not within the jurisdiction (e). An Order for discovery will not in general be made before delivery of a statement of claim (/). The party against whom such order is made shall in his affidavit specify suffi- ciently^) any documents which he objects to produce (h), and if on the ground of privilege, shall further state and verify the grounds(j). No affidavit will be admitted in contradiction, the affidavit of the party answering being conclusive, unless (1) from such affidavit itself, (2) from documents referred to therein, or (3) from admission in pleadings of such party, it appears that other relevant documents exist. The party seeking discovery, if dis- satisfied, should exhibit interrogatories (;'). No mere statement of belief that the other party has other docu- ments will support an application for a further Order (A:). Prolix affidavits of documents may be struck off {I). Semble, the Crown is entitled to discovery, hut not bound to give it (>n). 56. Without application to the Court or a Judge, any party may at any time before hearing give notice in writing to any other party to produce, for inspection and taking of copies, any document referred to in such other party's pleadings or affidavits. The party receiving such notice shall within four days (or two, if he has already Bel forth such documents in an affidavit as in para. 55) notify in writing a time within three days for inspection ;it the office of his solicitor, and state which (if any) and on what grounds he objects to produce (n). Any party not complying with such notice cannot put such docu- ment in evidence, unless he s;;1isiics the Court of some sufficient cause lor non-compliance (o). But semble, it is (e) Fniyrr v. Burrows, 2 (). B. I). 624. This case as fully reported does ,,,,t go nearlj bo fat as stated by Sir \V. T. ('hurley (3rd Edition, p. ;"81) who ref( i "i, it. to W. N. l > 7 7 , 7. 140; Dairies v. Williams, 13 Ch. D. 550, and compare remarks of Bacon V. C. with Union Hank of London v. Manby C. A.), 13 Ch. D. 239. Taylor v. Batten, 1 <-l B. 1>. 85 j Foi'trscue v. Fortescue, 34 1. T. 847. /, o. \XXI. r. 13. (o Gardner v. Irvin, 4 Ex. D. 49. , Jones-* MtmU Video Qa* Co., W. X. 1880, 87. L- Welsh Steam Coal Collieries Co. v. Gaskell, 36 L. T. 352. / Taylor v. Ketiy, W. X. 1876, 1.".'.'. tm) Tomline v. The Queen, W. N. 1879, 99. 0. XXXI. r. 1G. {oj Do. r. 13. PRODUCTION. — ADMISSIONS. oh generally a sufficient cause for non-compliance of a plain- tiff that 'the defendant required inspection before putting in a statement of defence (p). And a petition for inspec- tion of documents connected with a lunatic's estate by one chaining under him, must he supported by affidavit showing prima facie title (q). 57. If any party after receiving a written notice to produce for inspection omits to notify a time for, or objects to, inspection, the party desiring it may apply to a Judge for an Order. If the documents are not referred to in pleadings or affidavits, or disclosed in an affidavit of documents, such application shall be founded on an affidavit showing, (1) what are the documents, (2) the party's right to inspect, (3) that they are in the posses- sion* or power of the other party (r). On objection made by a party to discovery or inspection, and made on oath, if on the ground that such documents tend to criminate him (s), the Court or Judge shall determine whether or not any issue or question should be determined first, and the question of discovery or inspection reserved (t). 58. On non-compliance with an Order to answer in- terrogatories, or for discovery or inspection, an Order may, in the discretion of the Court (w), be made on appli- cation by the party interrogating, &c, that (1) a plaintiff have his action dismissed, or (2) a defendant his defence (if any) struck out, or (3) that any such party be attached (r), or any party's solicitor who, alter being served as above, has neglected without reasonable excuse to give notice to his client (w). But an Order for " ordi- nary account," where the writ was so indorsed, or for declaration of copartners, cannot be enforced by attach- ment under this Rule (.r). 59. A party may admit A. The truth of a case, wholly or partially, as stated (/>) Webster r. Whewall, W. X. 1880, 142. (q) In re Smyth (a Lunatic , W N. Ib80, 144. (»•) 0. XXXI. rr. 17, IS. (s) Webb v. East, 5 Ex. D. 108. (t) 0. XXXI. r. 19. (tt) Hartley v. Owen, W. N. 1876, 198. (v) 0. XXXI. r. 20. (to) Do. r. 22. (x) Pike v. Kicue, 24 W. R. 322. 54 THE LAW OF PRACTICE. in any pleading of another party, (1) expressly (y), or (2) by implication, as e.g. of a minimum sum certified by his own agent (;), or oi' a sum not denied to have been received as stated in an affidavit put in by the other party (a). B. Documents, " saving just exceptions." A party who, after written notice, unreasonably refuses or neglects thus to admit, shall pay the costs of proving such docu- ments, and costs of proving shall generally not be allowed unless such notice has been given (b). But documents thus admitted are not evidence unless formally put in and marked by the Registrar (c). 60. Necessary inquiries or accounts, or additional accounts, (d) may be directed by the Court or Judge at any stage pending further questions to be tried in the ordinary manner (e), but cannot be prosecuted in a Dis- trict Registry except by direction of the Court or a Jus- tice of the Division (/), nor can such Order be made on a counterclaim before dealing with the original claim (. (z) London SyndicaU \ . Lord, S Oh. D. 84. (a) Freeman v. Cox, 8 Ch. D. 148. On <>. X X XII. rr. 2, 3. (c) Watson v. Rodwell, 11 Ch. I). 153. [d] Barber v. MackreU, VI Cb. D. 534. \e) 0. X X XIII.. and see 0. XL. r. 11 ; Turquand v. Wilson, 1 Ch. D. 85 ; Rumtey v. Reade, 1 Ch. D. 643. tf i Irlam r. Irlam, 2 Ch. D. 608 < 7 ) Rdft v. Madaren, 3 Ch. I). 106 .//■ Westminster Brewery Co. v. //. 394.. EVIDENCE. AFFIDAVITS. 55 the Court or Judge to order on terms that the evidence of any witnesses be taken elsewhere upon oath, by inter- rogatories or otherwise, before an officer, commissioner, examiner, or other such person, and tiled (/), even where such depositions (being evidence tie bene esse) are not in the handwriting of the examiner, but taken down before other persons, and certified by the examiner to have been read over and signed by the witness in his presence (in). No Order shall be made under (2) or (3), where it appears that the other party bond fide desires the production of a witness for cross-examination, and that he can be produced (n). Nor under similar circum- stances can an affidavit used on a former occasion be read at the trial (o). An examiner has no discretion to admit, if objected to, (1) the public, or (2) a clerk or agent of any of the parties who is to be subsequently called (_/>). A commission may be ordered with costs reserved, and without security (q). 62. Evidence upon any motion, petition, or summons, may be given by affidavit ; but either party may apply for an Order of the Court or a Judge for attendance for cross-examination (r). Evidence on the Equity side of the Exchequer Division may be generally by affidavit (s), but in all cases of disputed facts the presumption is that it should be oral (t). 63. The plaintiff's affidavits shall be filed and a list delivered within fourteen days after agreement, as in 61 (1), or within time agreed upon by the parties, or allowed by a Judge at Chiimbers ; the defendant's, within fourteen days after such delivery, or &c, as above ; and the plain- tiff's in reply within seven days, &c. Affidavits in reply shall be confined to matters strictly in reply (u), but may (at least, in the Chancery Division) also confirm the (/) O. XXXVII. rr. 1, 4. (m) Bolton \. Bolton, 2 Ch. D. 217. (n) Banque Franco-JS'jyptienne v. Lutscher, W. N. 1S79, 183. (o) Blackburn Union v. Brooks, 7 Ch. 1). t>3. (p) In re Western of Canada <>H, Ac, Co., 6 Ch. D. 109. (o) Spffler v. Paris Skating Rink Co., 27 W. It. 225. (>•) o. XXXVII. r. 2. \s) 0. LX11. r. 1, and (Exch.) Rules of March 14, 1866, r. 3. it) Attorney General v. Metropolitan Railway Co., 5 Ex. D. 218. (u) 0. XXXVIII. it. 1, 2, 3. 56 THE LAW OF PRACTICE. plaintiff's evidence in chief (v). Semble, no further affidavits can be filed, except on "terms of amending pleadings (w). 64. Statements as to belief with its grounds are only admitted in affidavits on strictly interlocutory motions (x), and not in such as, while interlocutory in form, finally decide rights of parties. But where a party in the Court below admits such evidence, he may be precluded from objecting to it before* the Court of Appeal (y). Affidavits sworn before the partner of a local solicitor who has got up the evidence are inadmissible (z). 65. "Within fourteen days (generally) after the time limited for affidavits in reply, notice in writing may be given to produce any deponent for cross-examination on his affidavit (a), and where such affidavit includes accounts, notice of the particular items for cross-examination must be given, whether the party to be cross-examined is merely an accounting party, or one who seeks to charge by Ins account (b). Unless the deponent is produced according to su. 729. For former Chancery Rules as to filing i,.-v. evidence, Bee Daniell's Ch. IV., p. 784 (5th edition). On admission of farther vi/vd voce evidence in rebuttal, see Bigsby \. Dickinson, 4 Ch. I). 24 ; Rogers v. Manby, W. X. 188o, luii ; and Taylor on Evidence therein referred to. I 0. XXXVII. r. 3. (//) Gilbert v. Endean, 9 Ch. D. 259, \~) Dukt of Northumberland v. Todd, 7 Ch. D. 777. a 0. XXXVIII. r. I. [b) Bate* r. Eley, 1 Ch. D. 473. e Meyrick v. James, W. N. 1877, 120. • XXXVIII. r. 5. • Do. r. 6. if) Attorney- General v. Pagha/m Harbour Reclamation Co , W. N. 1876, PAET IV. TRIAL.— EXECUTION. 66. Trial shall take place, unless otherwise ordered by a Judge, (1) Where named in the statement of claim, or (2) If no place be named by the plaintiff, in Middlesex. And any Order as to place of trial made by a Judge may be discharged- or varied by a Divisional Court(a). The trial and hearing shall be before a Judge, Judges, Judge with assessors, Judge and jury, or before an Official or Special Referee, with or without assessors (/>). And any question or issue of fact, or of fact and law, arising in any cause, may be ordered to be tried by any Commissioner or Commissioners (c), including thereunder Judges of the High Court of Justice and the Court of Appeal, Serjeants- at-Law, or any of Her Majesty's Counsel, to whom such commission may be assigned (d). Semble, the plaintiff is bound by his election of one of the above modes of trial i . Semble, no trial can, even by consent, be heard in private, except where (1) lunatics or wards of Court are concerned, (2) public trial would defeat the object of the action, (3) where the Court follows the practice of the old Ecclesiastical Courts (/). 67. Notice of trial may, whether evidence is to be by affidavit or not () Do. r. 2. (f) Do. r. 29. ( 3 5S THE LAW OF PRACTICE. after the close of the pleadings, or with the reply (A), if {semble) it close the pleadings, and the plaintiff is in a position to deliver two copies of the whole of the proceed- ings (i) ; and such notice may specify one of the above modes of trial. The notice shall state whether it is for trial of the action or of issues, and if in a Common Law 1 >i vision, shall state the place and day for which the action is to be entered for trial (j), and, if in a Chancery action, may do so (A). A Vice- Chancellor is sufficiently de- scribed as " a Judge in Middlesex " {I). Ten days' notice shall suffice, unless (1) it be otherwise ordered, or (2) the plaintiff has consented to "short notice" of four days (m). The cause is to be entered, if in London or Middlesex, within six days after notice (/*) at most, but, if not entered on the day [of] or day after giving notice by the party giving it, may be entered within four days by the other party, unless the notice has been countermanded by con- sent or leave on terms (o). If the notice be for trial in London or Middlesex, this shall be deemed to be for any day on which it may come on in its order(p); if elsewhere, then for the first day of the next assizes (q); and the action or issue may be entered by either party not less than two days before the commission day in the District Registry (or elsewhere, as provided), or with the Associate (r). 68. If the defendant desires a jury, he may give notice out of Court, without moving for an Order, within four days after service of notice of trial, or extended time, and need not specify on which particular issues of fact he grounds his right to a jury (s). Such right is absolute (/), except, and only except, where it appears desirable to the (h) 0. XXXVI. r. '.',. i, Metropolitan Inner Circle Railway Co. v. Metropolitan Railway Co., 5 Ex, D. 196. (j) 0. XXXVI. it. 8, 8a. Eedmaym . . Vawjhan, 24 W. R. 983. / Harris v. Gamble, 7 Ch. D. 877. 0. XXXVI. r. 9. (n) I"/, rr. 1". 10a. Do rr. ]:;, 14. (p) Do. r. 11. Do. r. 12. (r) Do. r. 15a. (s) Do. r. 3 : and see Powell v. Will lams, 12 Ch. I). 234. ugg ■. SUber, 1 Q B. D. 362 (Patent Case) ; West v. White, 4 Ch. 1). 63] (nui an Bordkr v. Burrell, 5 Ch. D, 512 (ancient lighta). TRIAL BY JURY. 59 Court or Judge to direct a trial, without a jury, of ques- tions or issues of fact, or of fact and law, such as under the former practice could without consent be tried with- out a jury (u). The discretion of the Court or Judge in so determining is rarely interfered with, perhaps never, un- less a Judge has exercised his discretion because on a point of law he held an opinion which the Court of Appeal thinks wrong (v). But the Court or Judge has discretion to refuse such an application by a plaintiff who has been guilty of undue delay (w), or even where the defendant has asked for a jury (x). A defendant has no absolute right to a jury in actions proper only for the Chancery Division (//), as e.g. cases of fraud (z), specific performance («), purely conveyancing cases (b), issues of fact in an action to restrain a trade-libel (c), trade-name raising an infer- ence of law from which the tacts are inseparable (d), or where only minor issues of fact are involved (e). Nor can a Judge in the Chancery Division try a case with ajury (/), but a Judge, even of the Chancery Division, may direct issues of fact to be tried by a Judge and jury {g) } or ques- tions and issues of fact, or fact and law, to be tried by Commissioners, or at London or Middlesex sittings (h) ; and if arising in an action in the Chancery Division, the Order for such trial shall state on its face the reason (/'), as e.g., that the defendant desires it, and the Court sees no reason to the contrary (j). And an action, as well as a question or issue, may be so ordered to be tried. {u) 0. XXXVI. r. 26 ; and see on Judge's discretion, Powell v. Williams, 12 Ch. D. 234 ; Holmes v. Harvey, 35 L. T. BOO ; Sykes v. Firth, 46 L. J. Gh. D. 627. (v) Per James L. J. in Ruston v. Tobin, 10 Ch. D. 558. \w) Lloyd v. Jones, 7 Ch. I). 390. (.<■) Wedderburn v. Pickering, 13 Ch. D. 769. ( Q II. D. 1:27. i:, mi, a Silver Mine Co. v. Grant, 11 Ch. I). 694. « Tn -inn, in Main Line JUiilu-ay Co. v. Clark, 27 W. R. 077. ,. <>. XXXV I. r. 6. en Conington v. Gilliat, 1 Ch. D. 694. («) o. XXXVI. r I. () Freason w. Loe, 20 W. R. 138. I XXXV i. r. 4a. ' i,n, lii-it v. Ijirkir, 13 Ch. D. 102; referring to Cockshott v. London ■i, ■ • . 26 W. R. 81. («r) 0. XXXVI. r. 13. NOTICE OF TRIAL. — ADJOURNMENT. 61 B. The defendant only appears, he is entitled, without proving service of notice of trial on him(.r), to judgment dismissing the action, unless lie lias a counter-claim, which he must then prove so far as the burden of proof lies on him I//). But where an action abates, as where the plaintiff has gone into liquidation, pendente lite, and the trustee has not appeared, and there is no evidence of ser- vice of notice on him, the Order will be to strike out the action from the list (z). 72. Application may be made at assizes or in Middle- sex, within six days after trial, or, semble, after the party hears of it (a), to set aside a verdict or judgment on de- fault of appearance on terms (6), as e.g. on payment of costs of the day, where the defendant was not represented because his solicitor had overlooked the transference of the action (c), where the plaintiff was not prepared (d), where one side had trusted to expectation of a settlement of the dispute (e). 73. The trial may, if the Judge thinks it expedient, be postponed or adjourned upon terms (/), as e.g. payment of costs incurred by the action being in the paper, where it was adjourned on the application of a party to add other parties (;/). At or after the trial, (1) judgment, including a Referee's report if adopted (h), may be directed by Order to be entered, or ('2) the case may be adjourned for further consideration, or (3) leave may be reserved to move for judgment (i). But no motion for judgment is necessary where the Registrar has certified to the superior Court the result of a trial ordered to be tried in a County Court (j). (as) James v. Crow, 7 Ch. D. 410 ; following Re parte Lows, 7 Ch. D. 160 ; not following Cockle v. Joyce, 7 Ch. 1). 5b'. (y) 0. XXXVI. r. 19. (:) Eldridge v. Bwrgess, 7 Ch. D. 411. (a) Michell v. Wilson, 25 W. K. 380. (b) O. XXXVI. r. 20. (c) Burgoine v. Taylor, 9 Ch. D. 1. . . . On dclav in application, see Ma,/ v. Head, W. X. 1880, 26 ; WUHns v. Bedford, 35 L. T. 6 ■_•_>. (d) Kin. 7S0. {h) WaUis v. Lichfield, W. N. 1S76, 130. (t) 0. XX XVI. r. 22a. (j) Scutt v. Frcaiutn, 2 Q. B. D. 177. 62 THE LAW OF PRACTICE. 74. Where there is no preliminary question of law to be settled (k), a cause or matter, or question in a cause or matter, [but not the action itself (I)] may be referred to a Referee, who may, subject to Order, hold the trial as nio^t convenient (m), enforce attendance by svibpoena (n), but no1 commit or attach any person (o), and may submit any question to the Court, or state facts for the Court to draw inferences therefrom. The Court may require of him explanation or reasons, and remit the matter wholly or partially to him or another for re-trial or further con- sideration, or may decide the question referred to him on evidence taken before him with or without additional evidence (/>). A motion to set aside or vary the judg- ment in such a case must be supported by affidavit or other evidence of what took place at the trial (q). But when the matter referred to the Referee is simply the amount of damages in an action, the report cannot be altered or varied, though it may be accepted wholly or partially, or wholly disregarded, or remitted for amend- ment (r). The appeal from an Order of compulsory reference made by a Judge at Nisi Prius or Assizes is to the Court of Appeal (s). 75. in the Common Law Divisions, an application for new trial must be made A. to a Divisional Court of the Division to which the Judge belongs who tried the action (/), (1) after trial of an action by a -Jury (u), even though tie' case was originally attached to the Chancery Division (v), and whether the verdict has been given in the ordinary way, or a rinding directed by a Judge on {k) Lascelles v. Butt, 2 Ch. D. 588. (/) Pontifex v. 8evern, '■'< Q. B. I>. 295; Longman v. East, 3 C. P. D. 14-2; Braginton \. Yates, W. N. 1SS0, 150. i. XX XVI. r. 30. n) !>■<■ r. 31. o Do. r. :;:;. (;,, I ).,. r. :;\ (March, 1879). (,,) Sktbbs v. Boyle, 2 Q. I'.. I>. 124. Dunkirk iMUi-ry Co. v. Lcnr. '.» Cli. D. 20. But quare, whether this would not in- now covered by Rule 34 aa enlarged I («) Hoch \. Boor, 19 I.. •'. C. L. J). 665. (t) .A///-.; v. Baxter, 5 Ex, I>. 275. But see Jenkins v. Morris, 14 Ch. D. 07!. 0. XXXIX. r. 1. (cj Hani v. City of London Idal Property Co., 3 (l 15. D. L9. REFEREES. — NEW TRIAL. 63 facts as undisputed (w), or a nonsuit directed (x), or either refused {ij) ; (2) When the case has been remitted from the High Court to a County Court and tried by a Judge alone (z) : B. to the Court of Appeal when the trial has been by a Judge [of the High Court] without a Jury (a), whatever be the particular ground of objection on which the application is founded (b). But the finding on a particular issue in an action commenced in the Chancery Division directed to be tried by a Judge alone (semble, if actually tried in a Common Law Division) is an inter- locutory Order, and the proper course is to appeal (<). So, too, where the Jury are discharged after the opening of the trial, and the case is in fact tried by a Judge {/) London v. Roffey, 3 Q. B. D. 6 ; Davis v. Goodbehere, 4 Ex. D. '215. (z) Dames v. Felix, 4 Ex. D. 32. (a) O. XX XIX. r. 1. (b) Oastler v. Henderson, 2 Q. B. D. 575. (c) McAndrezo v. Barker, 7 Ch. D. 701, and see Jones v. Baxter, 5 Ex. V. 275. " (d) Metropolitan Bank v. Heiron, W. N. 1880, 132. (e) Krehl v. BwrreU, in Ch. 1>. 420. (/) 0. LVIII. r. 5a., March, 1879. (.ut whether as to one defendant without disturbing the verdict as to another quoere (q). The Older to show cause shall be a stay of proceedings, unless the Court otherwise order (/•), and a copy shall be served within four days (a). 79. In all cases not specially provided for by the Act or Rules, judgment is obtained by motion for judgment (t). But such motion is not necessary where by the Act or (i o. XXXIX. r. la., March 1879. i j Jenkins v. Morris, 11 Ch. D. 071. See Phillips v. South Western /:„,i,n,„ Co., •"- < t > B. I>. 78. (/.•) o. XXXIX. r. 3. Faund v. Wallace, 35 L. T. 361. (wi) Anderson \. Tiimas, '■'>''> J.. 'I'. 711. [n Potter v. Cotton, ~> Ex. D, L37 ; PanneU v. Nunn, W. N. 1880, 148. . Anthony r. ffalstead, '■'>! L. T. 133. XXXIX. r. 4. [q) Pitrnell v. Qreat Western Railway Co. d- I/arris, 1 Q. B. D. 636. 0. XXXIX. r. 5. i 1 1... r. 2. ( O. XL. r. 1. NEW TRIAL. — MOTION FOR JUDGMENT. 05 Rules it may be obtained in any other manner as, e.g. where the writ was specially indorsed, and the. defendant has not obtained leave to defend (u) ; where the defendant not being an infant or person of unsound mind has failed to appear, and the plaintiff has filed an affidavit of service or notice (r) ; in certain cases where the opposite party has made default in pleading (ir) ; where at or after the trial the Judge has directed judgment to be entered (x) ; in certain cases as to costs alone (y) ; where a cause has been ordered to be tried in the County Court (z) ; and sevible, where an arbitrator (not being a Referee) has made an award final and conclusive on the parties to an action (a). 80. A. Where judgment has been directed to be entered simply, any party may apply to the Court of Appeal by fourteen days' notice (b) to set it aside on the ground (1) after trial by a Jury, that the Judge has caused the finding to be wrongly entered with reference to the rinding of the Jury ; or (2) after trial by a Judge, that, upon the finding entered, the judgment is wrong (c). B. Where judgment has been directed to be entered subject to leave to move, the party to whom leave is reserved shall set down the action on motion for judgment, and give notice within the time limited (if any), or within ten days, stating (i.) the grounds of motion, (ii.) the relief sought, (iii.) that the motion is pursuant to leave reserved (■■. r. '•'. •/ Brewster v. Dwrrand, \V. N. 1880, 27. (m) o. XL. r. 10. [n //■,,„,//■,„ ,!■ (',,. v. Johnson <£• Co., 5 Q. 15. D. 263. MUisskh v. Lloyds, W. N. 1877, 36. ,, WaddeU v. Blockey, 10 Ch. I). 41 'J. \q) O. XL. r. 10. (/•; Parsons v. Harris, 6 Ch, l>. 694, Gilbert v. Smith, 2 Ch. D. 686 ; Chilton v. Corporation of London, 7 Ch. b. Si SETTING DOWN. — ENTRY OF JUDGMENT. C7 admissions of fact in the pleadings (/), or on allegations of fact in a statement of claim evasively (u) or not speci- fically (r) denied in the defence ; as e.g. for an Order for accounts of partnership (w), of trusts (a;), of mortgage (y), for inquiry {z), or for sale in partition action (a) &c. Further consideration may he reserved (6). Notice of motion for a decree or decretal Order may be given, without setting down the motion (c), so soon as the applicant's right to the relief claimed has appeared from the pleadings. But not so moving is not necessarily a waiver of right to judgment on admissions (d). The relief may be given, in the discretion of the Court or Judge (e), on terms (/), as e.g. an Order nisi binding absent parties three days after service, unless they show cause (g). But default in delivering a defence (It), and default of pleading generally (j), do not make such an admission of fact, and general joinder of issue on a counterclaim, without specific denial of the statements therein, does not warrant an immediate Order (j). 85. On delivery of a copy of the whole of the pleadings, judgment shall be entered by the proper officer [k), and, if in a Common Law Division in London, at the Central Office (I), dated, where pronounced by the Court or a Judge in Court, as of the day whereon pronounced (m) ; (t) 0. XL. r. 11, and see Lord Hanmcr v. Fliyht, 36 L. T. 279. («) Thorp v. Holdsworth, 3 Ch. D. 637. (c) Symondsv. Jenkins, 34 L. T. 277 ; Rutter v. Tregent, 12 Ch. D. 758. («■) Turquand v. Wilson, 1 Ch. D. 85. (x) Bennett v. Moore, 1 Ch. D. 692. \y) Martin v. Gale, 4 Ch. D. 128. (z) Gilbert v. Smith, 2 Ch. D. 686. (a) Burndl v. Burnett, 11 Ch D. 213. See for other examples, Rumsey v. Reade, 1 Ch. IX 643; Jenkins v. Duties, 1 Ch. D. 696; Bridson v. Smith, \\. N. 1876, 103. (b) Bennett v. Moore, 1 Ch. I). 692 ; Gilbert v. Smith, 2 Ch. D. 6S6. (c) Hetherington v. Longrigg, 10 Ch. D. 162. (). 86. A judgment of nonsuit, unless otherwise ordered, is equivalent to a judgment on the merits, hut may he set aside on terms in case of mistake, surprise, or accident (q). Mere clerical mistakes and accidental slips or omissions may he corrected on motion without appeal (r), hut a judgment by consent cannot after entry be varied for any mistake, except such as would suffice to set aside an agreement (s). On motion to set aside judgment, a Divisional Court may give judgment, if satisfied that they have before them all necessary materials (t). 87. Judgment for, A., recovery or payment of money to a person may be enforced [on fulfilment of condition or contingency, if any (//)] by any of the usual writs of execution (v) : B., payment into Court by sequestration or (where authorised) by attachment (w) : C, recovery of land by writ of possession (x) : D., recovery of specific chattels by writ of delivery, attachment or sequestration (//). E., an act or forbearance by attachment or committal (z), notice of the application to be served personally on the ] tarty or on his solicitor, or at his residence (a) or on a (n) 0. XLI. r. 3. Do. r. 1. (p) Do. r. 5. (q) Do. r. 6 ; Perkins v. Dangerfield, W.N. 1879, 172. (r) 0. XLI. A. Dec, L879. (.f) Attorney General \. Tomline, 7 Ch. D. 388 ; Davis v. Davis, 13 Ch. D. 861. (i) Dana v. Simmint, 40 L. J. C. P. D. 343. [u o. X I.I I. r. 7. V l>0. r. 1. Do. r. 2. (*) Do. r. '.',. (y) Do. r. 4. \><, r. r>. Aa to v.lrtt amounts to contempt, see Edwards v. Edwards, 2 Ch. I). '-".»l ; /« re Bryant, t Ch. D. 98 ; In «; Langley, 13 Ch. D. lid. a) <>. XlilV. r. -. Bee Browning v. Sabin, 5 Ch. L). .oil ; In re a Soli- 1 I Ch. I>. 152 ; ./»//;/ v. < 'oopi r, :, C. P. D. 26. Similarly, in case of c unmittal, Richards v. Kitchen, 30 L. T. 73U. SETTING ASIDE JUDGMENT. — EXECUTION. GO clerk at his chambers (/>). Whether the rule as to notice applies where a subpoena in the Probate Division has beeu disregarded, ([ii^re (c). The costs of attachment arc in the discretion of the Court, and should be applied for at the time (d). 88. Alter judgment against partners, execution may issue (1) against their property as such, (2) against any person admitting on the pleadings that he is, or adjudged to be, a partner, (3) against any person served as such who has failed to appear, (4) against any person whose liability on application for leave is not disputed, or has been tried and determined (e). 89. Writs of execution shall be issued on production of the judgment, after a proper time has elapsed (/), filing of a prcec'ipe signed by or on behalf of the party or his solicitor (g), and indorsement of the name and address of the solicitor (and principal solicitor, if any), or of the party if suing or sued in person (//), and the date (/), and further indorsement with direction to the Sheriff, &c, to levy the amount stated, and interest (if required, at four per cent., or other rate, if so agreed), and also poundage, fees, and expenses (J). 90. No writ shall be issued until the expiration of the time (if any) limited at or after the judgment for payment or stay of execution, but if no such time be limited, the claimant may immediately after entry of judgment sue out a writ or writs of fi. fa. or elegit (k). Where a judg- ment has been drawn up by a Chancery Registrar for recovery of money and costs, at the election of the claimant one writ may issue, or one for recovery of the money and one for costs, the second to be not less than eight days after the first {I). A writ shall remain valid ' (!>) Tilnnj v. Stanafidd, W. N. 1SS0, 77. (c) Baigent v. Baigent, 1 P. D. 421 ; In the goods of Ifary Cartwright, 1 P. IX 422. (d) Abud v. Riches, 2 Cb. D. 528. (e) O. XIII. r. 8. (/) Do. r. i>. ((/) Do. rr. 10, 10a. (h) Do. r. 11. (i) Do. r. 12. (j) Do. rr. 13, 14. (*) Do. r. 15. (I) Do. r. 15a. 70 THE LAW OF PRACTICE. for one year from its issue or renewal by leave (m). As between the original parties it may issue within six years from judgment (n) in favour of or against a party or other in whose favour or against whom an Order is made (o), hut later than six years, or after change of parties, only by leave on terms (p). ' 91. Every Order of a Court or Judge in any action, cause, or matter, may he enforced in the same way as a judgment (q), as e.g. an Order for personal pa}'ment and for foreclosure combined (r), a judgment on an action connected with one in another Division before the merits of this other have been determined (s) &c. But this does not apply to an Order dismissing an action with costs for want of prosecution (t). 92. Any party may apply for stay of execution or other relief on terms (u). 93. The Rules do not take away or curtail rights of enforcing Judgments or Orders which existed before the Judicature Acts (v), as e.g. for proceedings in Equity to obtain the benefit of a judgment (w). 94. Where judgment is for recovery or payment of money, an ( >rder may he made on application (1) for oral examination of the judgment debtor as to any debts owing to him and production of books or documents (x), or (2) upon affidavit of the applicant or of his solicitor stating (i.) recovery of judgment, (ii.) to what amount un- satisfied, (iii.) existence of a garnishee within the juris- diction, lor attachment of all debts owing or accruing, or <•( rtainly {y), ami not merely possibly (z), about to accrue from the garnishee, unless he shows cause before the (m) 0. XLII. r. 16. (n) Do. r. 21. (o) Do. r. 18. (//, I)-, r. 19. Wo. r. 20. (r) Dymond v. Croft, 3 Ch. D. f>12. (*) Hodges v. Fmcham, 1 Ch. 0. '■>■ 'remetti v. Crom, 4 Q. D. D. '225. (u) 0. XLII. r. '22. I- Do. r. ■>■'.. (w) Anglo /i>i/,. , 0. XI.V. r. 1. In re Cowan x Extate, 14 Ch. D. 638. (z) Ricliardson v. Elmit, 2 C. P. D. 9. EXECUTION. — GARNISHEE. 71 Court, or a Judge, or an officer (a). But an Order dis- missing with costs for want of prosecution is not a judgment under (1) (b). Joint creditors of a legatee may obtain such an Order against a receiver applied for in an administration action (c). Service of such an Order or notice to the frarnishee as directed shall hind such debts in his hands (d) as against his trustee in bankruptcy («); but an Order nisi does not create a charge until service (/). Where a judgment debtor neglects to comply with an examination Order under (l) i application for his attach- ment may be made on affidavit stating (i.) that conduct money has been tendered, (ii.) that there is good reason for not examining him at his residence, (iii.) that no other means exist of ascertaining what debts are due to him (//). 95. Execution may be ordered to issue, if the garnishee does not pay into Court nor dispute his liability, or if he does not appear upon summons (h). ' If he does dispute his liability, it may be tried like any other issue or question in an action (i). 96. Any third person, to whom it is suggested that the garnishee debt belongs, or any lien or charge' thereon as e.g. solicitor's lien (j), may be ordered to appear and state particulars (k) ; after which execution may be ordered, or any issue or question be directed to be tried, or any other such Order be made as is fit, upon terms as to a lien or charge (if any) and as to costs (/). Payment or execution shall be a valid discharge to the garnishee as against the judgment debtor, although such proceeding may be set aside (///). The costs of such attachment and incidental proceedings shall be in the discretion of the Court or (a) 0. XLV. r. 2. . (fc) Cremetti v. from, 4 Q. B. D. 225. (r) In /■< Covxtn's Estate, 14 Ch. D. 638. (d) 0. XLV. r. 3. (c) Ex parte Joselyne, S Ch. D. 327. (/) llamer v. Giles, 11 Ch. D. 942. (). 97. An Order charging stock or shares with immediate payment of an ascertained sum (q) or payment of a sum certain on a future day (;) may be made by any Divisional Court, not necessarily of the Division to an action in which the claimant is a party (s), or by any Judge, the proceedings and effect being as under 1 & 2 Vict. c. 110, ss. 14, 15, and 3 & 4 Vict. c. 82, s. 1 (*). But where it appears that the judgment debtor was dead when such an Order nisi has been made, it cannot afterwards be made absolute (w). A motion for such an Order, if made respecting solicitor's lien under 23 & 24 Vict. c. 127, s. 28, must be before the Judge who tried the case (v), ;uid a petition by a solicitor under the same section in an action tried in a District Registry cannot be presented to a Judge in the Chancery Division (w), but can be if he tried the case {x), and should not be served on other parties (y). 98. Any person claiming interest in stock of any com- pany [including the Bank of England (*)], may file an affidavit and not ire at the Central Office, and serve copies of each on such company (a), to remain in force for five v.ius (6), and be capable of renewal (c), and of withdrawal (n) 0. XLV. r. 0. (o) .lA/.sv,,/ v. WirraiL Highway Board, 1 Q. P>. D. 450. (p) London Joint Stock Bank v. Aldermen of City of London, 1 C. P. D. 1. W. N. 1880, 65. q) Widgery v. Tepper (C. A.), 6 Ch. D. 364 ; not following Burns v. Irving, 8 Ch. D. 291. r Bagnall v. Carlton, C Ch. D. 130. [s] Hopewell v. Barnes, 1 Ch. J>. 630. (t) 0. XI.VI. r. 1. „ Finney v Hinde, i Q. B. IX 102. Higgi v. Schroder, 3 C. P. D. '252. (w) Owen v. Henshaw, 7 Ch. D. 385. /'/ . // v. Trutman, 12 Ch. L>. 680. \y) I)., p. 881. (z) 0. XLVI. r. 3. [a Do. r. 4. b Do. r. 7. (c, Do. i. 8. CHARGING ORDER. — PAYMENT OF COSTS. 73 by (1) written request, or (2) Order obtained on notice, or (B) petition duly served (d). But such company on receiving written request from the holder to permit the transfer of the stock, or to pay dividends, are not authorised to refuse such transfer or payment for more than eight days, without an Order of Court (e). 99. Where a person after service disobeys a judgment or ordinary four days' Order (/) for payment into Court, or doing any act in a limited time, a writ of sequestration may issue, without any Order, against his estate and effects {g), including any pension under 15 & 16 Vict. c. 54 (li). But such issue and service does not per se make the plaintiff a secured creditor (i). Whether a simple judgment debt can be so recovered, quare (j). 100. Payment of costs alone cannot be enforced by subpoena, nor (without leave) by sequestration (k). (d) 0. XLVI. r. 9. (c) Do. r. .10. (/) Sprunt v. Pujh, 7 Ch. D. 567. (g) 0. XLVII. r. 1. (h) WUlcock v. Terrell, 3 Ex. D. 323. ((') Ex parte Nelson, in re lloare, 13 Ch. D. 41. (j) Do. pp. 45, 46, 47. (k) 0. XLVII. r. 2. PART V. APPEAL.— COSTS. 101. Appeals to the Court of Appeal are brought by notice of motion in a summary way (. ; and sec In re Stockton Iron Furnace Co., 10 Oh. D. 335 ; Hunter \. Hunter, 24 W. R. 504. (/>■) 0. LVIII. r. 2. {I) In re St. Namire Co., 12 Ch. D. 88. (m) Flowerv. Lloyd, 6 Ch. D. 2<»7. (n) Bxpartt Reddish, in re Walton, 5 Ch. D. 882. (u) O. LVIII. v. 5. (/,) Hastie v. Hastie, 1 Ch. D. 562. (7) Dicks v. Brooks, 13 Ch. D. 652. With regard to appeals to the House of Lords, fiesh evidence will generally net lie admitted. Per Lord Selhorne : Banco de Portugal v. WaddeU, 5 App, Cas. 170. {>■) Bigxby v. Dickinson, 4 Ch. 1). 24. (.») 0. LVIII. r. 11. (0 Do. r. 12. E 2 76 THE LAW OF PRACTICE. 103. If a respondent wishes a decision varied, whether such variation include costs or not (u) and whether as to the interest of the original appellant or not (r), he shall give to all parties affected an eight days' notice in case of appeal from a final judgment, and two days' notice from an interlocutory Order, subject to any special Order (w). Such variation must not be as to costs alone {x), but may be as to costs, charges, and expenses (if). The costs of a notice, if unsuccessful, may be ordered to be paid by the respondent (*). But though he omit such imtice, the Court of Appeal has power to give any Judg- ment or make any Order which ought to have been made, and any further or other Order, as the case may require, as to the whole or part of a decision (whether the appeal has been made as to the whole or part) and to do so in favour of all or any of the respondents or parties (a). And the omission to appeal from any interlocutory Order or Rule shall be no bar to a decision on the merits on an appeal from the final Order (6). And the Court may set aside a (verdict and) judgment, and have a new trial, if it think there ought to be one (c). But the Court will not reverse a conclusion of fact arrived at in the Court below, except under extreme pressure, or where such conclusion depends on inferences and not merely on the credibility of witnesses {d). 104. The Court of Appeal has power to make such Order as to costs of appeal as seems just (e). The printing of shorthand notes is generally discouraged (/), and costs thereof only allowed where they are essen- (u) Harris v. Aaron, A Ch. D. 749. Ralph v. Carrick, II Ch. D. 880. 0. I. VIII. it. 6, 7 ; and sot; Cracknall v. Janson, 11 Ch. D. 20, and /. partt Payne, in n Cross, 11 Ch. D. 539. lx) Harris v. Aaron, 1 Ch. I». 749 ; In re Hoshini Trusts, 6 Ch. D. 281 ; Graham v. Campbell, 7 Ch. D. 400. ( V ) Jones v. Chennell, 8 Ch. D. 192. /:,. " LaureUa," I P. D. 26. [a 0. LVIII. it. 5, 6. i/,, Do. r. 11. See Sugden v. Lord St. Leonards, 1 P. D. 208 ; It lute v. Witt, 5 Ch. D. 589. (c) 0. lA'IH. r. 5a. ,,/, The " Glannibanta," 1 I'. D. 283. it) 0. LVIII. i. 5. i i ) In r< Ihichrsx of Westmin t. 139. \jb) Cummins v. Uerron, I Ch. D. 7«7 ; White v. Witt, 5 Ch. I). 589. 0. LVIII. r. L5. (d) See Swindell v. Birmingham Syndicate, 8 Ch. U. 127. INTERLOCUTORY ORDERS. 79 missal of an action (e), or (in the practice of the Chancery Division) refusal to discharge a Rule made at Cham- bers (./"), to the date of service of notice of the appeal od the respondent (//). Special leave will only be given under very special circumstances (Ji), and not because the Court of Appeal has subsequently construed a doubtful point of law differently, nor where the appellant was too late merely through misconstruction of time on his own part (/'), or even on that of an official (J). But Bemble, leave to appeal after lapse of time will be given where there has been inevitable accident, or the other side has raised an equity against him (k). [And where notice was given but the appeal not set down in time, a second notice given within the time was held valid, the appellant offering to pay costs occasioned by the mis- take (/).] Where out of several distinct claims in one application some are granted and some refused (m), or not mentioned in the Order (»), the time for an appeal on the refusal runs from the hearing. But where on petition payment is ordered of an undisputed moiety, the time for appealing on the moiety refused runs from the date of drawing up the Order (o). 108. Doubts as to what Judgments or Orders are final or interlocutory shall be determined by the Court of Appeal (p). Interlocutory Orders, so far as the time for (e) International Financial Society v. City of Moscow Gas Co., 7 Ch. D. 241. (/) Dickson v. Harrison, 9 Ch. D. 243. But see Ex parte Whittle, in re Greaves, 49 L. J. Cb. D. , where the time was said to run from the time of pronouncing the Order, not settling or signing it. In Ex parte Ireland, W. .\. 1878, 176, the Order was not "perfected " until the date was inserted. (g) Ex parte Viney, in re Gilbert, 4 Ch. D. 794 ; Ex parte Saffery, in re Lambert, 5 Cb. D. 365. (h) Craig v. Phillips, 7 Ch. D. 249. (i) International Financial Society v. City of Moscow Gas Co., 7 Ch. D. 241. But see Taylor's case, 8 Ch. D. 643. (j) Ex parte Vinci/, in re Gilbert, 4 Ch. D. 794; Iliyhtonv. Treheme, 46 L. J. Ex. D. 169. (/•) McAndrewv. Barker, 7 Ch. D. 7of> ; Rhodes V. Jenkins, 7 Cb. D. 711. (/) Norton v. London •(• North Western Railway Co., 11 Ch. D. 118. i extension of time for appeal after judgment on the merits, see Colli As to extension of time for appeal alter judgment on the merits, see loiUh Vestry of Paddington. ■> Q, B. D. 368. (m) Traill v. J Kelson, 4 Cb. D. 7. (n) Berdan v. Birmingham Small Arms 1- Metal Co., 7 Cb. D. 24. (o) In re MicheWs Trusts, 9 Cb. D. 5. (p) J. A. 1875, s. 12. 60 THE LAW OF PRACTICE. appealing is concerned, include Orders or Decrees in Bankruptcy, in Winding-up, or on petition for Winding- up [q), and in any other matter not being an action (r), including an Order on petition under the Trustee Relief A.ct(s), and an Order under the Vendors' and Purchasers' Act, 1874(f)- Also such Interlocutory Orders as finally settle tie rights of parties (tt), so far as to fall under the twenty-one days' rule, as interpleader Orders (a), Orders empowering the plaintiff to sign judgment on a specially indorsed writ (v), discharge of a Rule for new trial (w), a decision of the High Court on a special case stated by an arbitrator whereon he is to make his award (x), and a refusal to annul an adjudication of bankruptcy (y). But an Order overruling a demurrer (2), and a judgment in an action on a replevin bond (a), are not interlocutory Orders; nor is an issue concerning compensation, stated under the Railways Act, 1868, a "decision made in a matter not being an action" (b). 109. The Court of Appeal may direct security for costs by deposit or otherwise, e.g. bond with sureties (c), under special circumstances (d), as e.g. in case of poverty of the appellant and voluminous evidence (e), foreign domicile and want of assets here (/)., insolvency and vexatious prosecution (g), assignment of the whole pro- perty of the appellant (h), appeal by a company from an absolute winding-up Order, where no one else is respon- sible for costs (i), &c. Insolvency itself is prima facie (17) In re National Funds Assurance Co., 4 Oh. D. 303. (r) 0. LVIII. r. 9. (s) In re Baillie's Trusts, 4 Ch. D. 785. (t) In re Blyth «t- Young, 13 Ch. 1). 41*;. (tt) See Pheysey v. Pheysey, 12 Ch. D. 305. iu) M c Andrew v. Barker, 7 Ch. D. 701. ,,-. Standard Discount Co. v. La Grange, 3 C. P. D. 67. WUks, Trusteet, Ac. v. Judge, W. N. 1880, 92. {z) Collins v. Vesbry of Paddington, 5 Q, B I). 368. (y) ExparU Ward, m re Ward, W. N. 1880, 148. ( Z ) Trowell v. Shenton, 8 Ch. D. 318. [a />;., ;. Groom, 49 L. J. C. L. 4. -JO. (6 New River Co. v. Midland Railway Co., 36 L. T. 539. (, , PhosphaU Sewage Co. v. Hartmont, 2 Ch. D. 811. (d) O. LV1I1. r. 11. See 7''<<- " Victoria," W. N. 1876, 145. , 11 2 on v. Smith, 'J Ch. D. 67. If) Grant v. Banque Pranco-Egypiienne, 2 C. P. D. 430. a Usti v. Brearleys 3 C. P. D. 20ft. 1. 1 T/u " Lah Sfef/antic," 36 L T. 183. i In re Diamond Fuel Co., 13 Ch. D. 412. SECURITY. — STAY OF EXECUTION. 81 ground (j), but merely primd facie, requiring extra cir- cumstances to Bupport it (A - ). The Court may in its dis- cretion stay an appeal until security is given (/), but can- not be compelled to limit a given time under penalty of dismissing the appeal (m) ; but where no time is fixed in the Order, the security must be given in reasonable time according to circumstances, or the appeal will be dis- missed for want of prosecution (n). And where additional security has been ordered, and the appellant has made delay, and only given it after notice from the respondent of motion to dismiss, the appeal cannot be heard before payment of the costs of such motion (o). Notice of appli- cation for security may be served without leave (p), and the application must be made before costs are actually incurred (//). These rules apply to the case of an appel- lant defendant (r) as well as plaintiff, and include appeals from the Court of the County Palatine of Lancaster (s). 110. No appeal shall operate as a stay of execution or of proceedings under the decision, including an injunc- tion (t), except so far as may be ordered by the Court appealed from, or a Judge, or the Court of Appeal (u). Where the Court below has absolutely dismissed an action, it has no jurisdiction to stay proceedings pending appeal, which can only be done by injunction granted on application to the Court of Appeal (r). Where the defend- ant alter decree goes into liquidation and then appeals, the Court may stay proceedings as vexatious (ic). Such applications cannot be heard ex parte, but notice must be served, whether the application is made to the Court (j) Per Cotton L. J. in In re Iron/, Hankin v. Turner, 10 Ch. D. 372. (k) Waddell v. Blockey, In Ch. I). 416. (/) Clark v. Roche, 46 L. J. 372. (w) Wilaonv. Smith, 2 Vh. D. 67. (n) Judd v. Urcen, 4 Ch. D. 784 : Yale v. Oppert, 5 Ch. D. 638 ; Polini y. Oray, 11 Ch. I). 741. (o) Ex parte Isaacs, in re Baum {'2), 10 Ch. D. 1. (p) GriUs v. Dillon, 2 Ch. D. 325. (q) Oratit v. Banque Franco- Egyptienne, 1 C. P. D. 143. (r) l)enct\. Mason, W. N. ISlV, 81. (s) Let v. Nuttall, 12 Ch. D. 61. (0 Flower v. Lloyd, W. N. 1877, 81. (u) 0. LYIII. r. 16. (v) Wilson v. Church, 11 Ch. D. f-76. {w\ Vale v. Oppert, 5 Ch. L>. 969. B S 82 THE LAW OF PRACTICE. appealed from or to a Judge thereof (x), or if made by motion before the Court of Appeal (y). And where any application may he made to either Court, or to a Judge of either, it shall be made in the first instance to the Court or a Judge of the Court below (z), and when made to the Court of Appeal is a motion by way of Appeal whether formally so entered or not (a). If a party appealing from a Judge at Chambers does not appear in the High Court, and judgment is given against him, no appeal lies to the Court of Appeal, but he may apply to the Division, but semble, an appeal lies, if he appears, and from some accident the case is not fully argued (b). 111. The above Ilules do not affect the practice in appeals to the House of Lords, pending which stay of execution is obtained by giving bail in error under the Common Law Procedure Act, 1852, s. 151, and then as of right, and application to enlarge time for so doing must be made to the Division of the High Court to which the action was originally attached (c). Where the Court of Appeal has made an Order as to costs, the} r may be enforced pending appeal to the House of Lords, if the solicitors undertake to refund them in case of reversal (d). But where the right to appeal is unrestricted, the Court of Appeal will ordinarily stay proceedings so far as to pr. Morgan r. Elford, I Ch. D. 352. . Polimi v. Qray, L2 Ch. J). 438 ; Wilson v. Church, 12 Cb. D. 454. (/) 0. LVIII. r. 19 ; and ee Donovan v. Brown, 4 Ex. 1). 148. (_/) Tennant v. Rawlvngs, 4 C. P. D. \'6'6. HOUSE OF LORDS. — COSTS. 83 113. Costs shall be in the discretion of the Court, but trustees, mortgagees, and others shall not be thereby deprived of any costs out of particular estates or funds to which they were formerly entitled in Equity. As a rule, where an action or issue is tried by a Jury, the costs shall follow the event (h), whatever the amount of damages obtained (i), and the event is the result of all the pro- ceedings incidental to the litigation, including a hist trial (_/), and a Rule for new trial (A), and the event may be distributive, where the Jury find for the plaintiff on one cause, and for the defendant on another (t). And costs reserved on leave to appeal, by analogy, follow the result of the appeal (m). But (1) where relief might have been obtained in a County Court, and the plaintiff has not recovered more than £20 on contract or t'10 in tort, he shall not be entitled to any costs of the suit, unless the Judge certifies on the record that there was sufficient reason for bringing the action in the High Court (n) ; (2) the Judge may, upon or without application (o) upon good cause shown, at the trial, otherwise order (p); after the trial the Divisional Court has independent jurisdiction to deprive a successful plaintiff of costs (q). And where a third person opposes unsuccessfully interlocutory proceed- ings taken to make him a party, an Order that he pax- costs is not annulled by a subsequent final judgment dis- missing him from the suit, and ordering other parties to pay his costs in the cause (r). Where a third person is served with an Order in pursuance of a Judgment, which necessitates his appearance, he is entitled to costs of such appearance (s). "Where an action is transferred to the (/() 0. LV. r. 1. (i) Parsons v. Tinting, 2 C. P. D. 119 ; Garnet v. Bradley, 8 App, C 941; Ex parti Mercers' Co., 10 Ch. D. 481. I /') Field v. Great Northern. Railway Co., 3 Ex. D. 2. Cas. Hit. (re) J. A. 1873, s. ti7 : referring to County Courts Act, 1867, s. 5. (o) Turner v. Heyland, 4 C. P. D. 432 ; Collins v. Welch, 5 C. P. D. 27 : Marsden v. Lancashire >(■ Torhshin Railway Co., 42 L. T. 680. (/>) 0. LV. r. 1 ; and sec Harris v. Petherick, 4 y. B. D. 611. (q) Bowey v. Rett, i Q. B. D. 95 ; Siddons v. Lawrence, 4 Q. B. D. 459 ; Myers v. Defries, 4 Ex. D. 17ti. (r) Bmuon v. Godden, I Ex. 1>. 246. 0) //( re Orr-Ewiny's Trade Marks, W, N. 1880, 24. 84 THE LAW OF PRACTICE. High Court as being concerned with a sum exceeding £500. the plaintiff, though successful, is liable to pay costs of bringing it in the County Court (t). The County Court Jurisdiction Act, 18G8, s. 9, is repealed as to costs by O. LV. r. 1 {it). Costs of an award on reference by consent (whether when compulsory, qucere) are in the dis- cretion of the arbitrator (v). 114. Security for costs may be required, among other cases, (1) where a plaintiff or counter-claiming defendant is permanently out of the jurisdiction (w) or goes out of it, in which latter case security may be required for past as well as future costs (x) ; (2) where the plaintiff becomes bankrupt or files a petition for liquidation, security may on prompt application be required for past as well as future costs(//i ; (3) in a second action against the same defendant for recovery of the same land (z) ; (4) before an Order is made under the Land Transfer Act (a), or the Declaration of Title Act, 1862 (b); (5) where the plaintiff is a Company whose assets are, on credible testimony, believed to be insufficient (c), as where the company is in liquidation {d) ; (6) where a plaintiff, having no visible means of paying, insists on bringing an action in tort in the High Court, which might have been brought in the County Court (e) ; (7) where a married woman (i.) sues by a next friend, who is not a person of substance (/), and (ii. as a general rule) where a married woman sues or defends by leave without her husband or next friend (g) ; (8) where hii action of replevin is removed by writ of certiorari into the High Court at the instance of the defendant (h ) ; (0 Ward v. Wyld, 5 Ch. D. 779. la) The "Elijah Packer," W. N. 1S77, 126. iLatti v. Wakefield, i Ex. I). 249. (w) Bee Republic of Costa Rica \. Erlanger, 3 Ch. D. 02. x) Mattey v. Allen, 12 Ch. D. 807. C. 1*. D. 3»35. (z) 17 & 18 Vict, c 125, s. 93. (a) 24 & 2"> Vict. c. 53, s. II. (6) -jl & 25 Vict. c. '17, s. 9. \c) 25 & 2H Vict. c. 89, B. 69. [d) Sort hum pi on Coal Co. v. Midland Waggon Co., 7 Ch. D. 500. & 81 Vict. c. 142, b. 10, confirmed by J. A. 1873, a. 66. (/) Bee cases collected in DanielTa Ch. J'r. 1U4. [g) o. XV. r. h, see paza. 15. (A) 19 a 20 Vict. c. 108, s. 71. SECURITY. — SOLICITORS' COSTS. 85 (9) under special circumstances, on appeal to the Court of Appeal (i); (10) on appeal to the House of Lords (j). 115. But no security is required of a party who resides out of the jurisdiction hut comes temporarily to England to enforce a claim (k), or to oppose a winding-up petition (I). Nor where a foreigner residing abroad is for mere conve- nience made plaintiff in an interpleader issue (m). Nor where a defendant admits the plaintiff's claim, but sets up a distinct counter-claim to a larger amount, is he entitled to security as against a plaintiff residing out of the juris- diction (to). 116. Semble, the security may be applied for in general at any time when it becomes desirable [especially where a new case has been set up materially increasing the costs (o)], and even though the defendant has taken some step after giving notice of his application (p). The amount, time, manner, and form, are in the discretion of the Court or Judge (q), but if in the form of a bond, it shall, unless otherwise ordered, be given to the other party, and not to an officer of the Court (r). Where a counter-claiming defendant residing out of the jurisdic- tion has to give security for general costs, this Order is not satisfied by giving security for costs of the counter- claim only (s). 117. Solicitors shall be entitled to costs A. On the " Lower Scale " {inter alia), in cases of ad- ministration of estates under £1,000 (*), at the time of institution of the action ; and where an equity of re- demption is comprised in the estate, the value of such equity of redemption only, and not of the whole mort- gaged estate, is to be estimated in the calculation of the (t) 0. LVIII. r. 15, see para. 109. (j) St. O. IV. (k) Redondo v. Chaytor, 4 Q. R. D. 453. (I) In re Percy & Kelly Nickel, Cobalt, & Chrome Iron Mining Co.. 2 Ch. D. 5:51. (;«) Belmontc v. Aynard, 4 C. P. D. 221, 352. (n) Winterfield v. Bradnum, ■'• Q. B. D. 321. (<>) Northampton Coal Co. v. Midland Waggon Co., 7 Ch. D. 500. (p) Arkwright v. Newbold, W. N. 18S' 1 , 5'J. (q) 0. LV. r. 2. (r) Do. r. 3. (s) The "Julia Fisher," 2 P. D. 115. (t) Add. K. of Court, O. VI. 1 (1), and see Roycrt v. Jones, 7 Ch. D. 345. SO THE LAW OF PRACTICE. .£1,000, subject to reduction, if on a subsequent sale its proceeds with the residue do not reach .£1,000 (u). B. On the " Higher Scale " (inter alia), in actions for special injunctions to restrain commission or continuance of waste (v), but only where it tends to work permanent and irreparable damage, or where title is involved, not where the damages are temporary or casual (w). But the Judge lias discretion to say whether the injunction is the principal relief sought by an action (x). The Court or Judge may allow the fees on either scale to all or either or any of the parties, as to all or any part of the costs (y), as e.g. where an action on a Bill of Exchange is properly brought in the Chancery Division, costs may be allowed on the higher scaled). 118. -lust and reasonable charges in procuring evidence are allowed in the Common Law as well as the Chancery Divisions (a), and may include e.g. surveyor's costs in an action for recovery on breach of contract (b). The Taxing Master may, with or without the direction of the Court, look into and disallow costs of statements, evidence, as affidavits {<■), &c, which are improper or of unnecessary length w/i. Taxed costs may be adjusted by way of de- duction or set-off (e), and such right of set-off is not inter- fered with by solicitor's lien (/). Thus, costs due to a party on an administration suit may be set off against costs due from him on an unsuccessful motion for attach- ment {{)). But costs in the High Court cannot be set off against costs in Bankruptcy (h). Costs of an application to extend time are, in the absence of any special Order, in the discretion of the Taxing Master (i). Where each (») In re Sanderson, 7 0L I». 176. 0. VI. 2. I TiaptiKut v. Miilhiml Hull mil/ <\>., ~> (}. B. D. 1G7, 431. (x) Homer v. Oyler, 41) L. J. Ch. D. 055. v) 0. VI. :;. I Pooley v. Driver, 5 Ch. D. 458. d Prov. 8. Mackley v. ChQlmgworth, 2 C. P. D. 273. (c) Cracknatt v. Janson, 11 Ch. D. 1. Gten. I'i'-v. 18. • Do. 19. (/) PrimgU v. Oloag, 10 Ch: I>. 676. RobarU v . Bu - ' h. D. L98. ih) Export* Oriffin, in re Adams, 14 Ch. I). 37. (<', Ccn. i'rov. 22a. TAXATION OF COSTS. 87 party succeeds on some counts, the Taxing Master may properly assign costs proportionately (j). Certain allow- ances, as, e.g., refreshers (k) and special journey or other expenses under the head of general retainer (I) are within the discretion of the Taxing Master (in). He may dis- allow unnecessary or improper costs charged against a third party (n), as, e.g., abortive garnishee summonses (o). The Rules of any of the old Courts, whose jurisdiction is transferred, remain in force where not inconsistent with the Acts and Rules (}>), including the Rules of the old Court of Chancery where not altered (q). So, where a creditor brings an administration action on behalf of himself and other creditors, or obtains the conduct of such an action which had been originally brought by a legatee or next-of-kin, he is entitled to his costs as be- tween solicitor and client (r). But, where an Order for costs is made by the Court of Appeal, the old practice does not justify any postponement of taxation without special direction (s). The Taxing Master may arrange what parties are to attend before him (t), and a solicitor has no statutory right to have the amount of his charges settled by taxation only, as, e.g., against the trustee in bankruptcy (w). An} 7 party dissatisfied may, before the signing of the certificate or allocatur, deliver to the other party, and carry in an objection in writing, specifying the items or parts objected to (c), and without stating the reasons for such objections (w) ; and the Taxing Master shall reconsider his taxation (x), and if the certificate or allocatur is objected to in respect of any such items (j) Knight v. PurseU, 49 L. J. Ch. D. 1-20. (A) Harrison v. Wearing, 11 Ch. D. 206. ;/: In n Snell (a .solicitor), 5 Cb. D. 815. (m) Gen. Ppov. 29. (n) Gen. Prov. 26. (o) Simmons v. S/orcr, 14 Ch. D. 154. (p) Gen. Prov. 28. (q) Pringle v. Qloag, 10 Ch. D. 676. (r) In re RicKardson, Richardson v. Richardson, 14 Ch. D. 611. \s) Phihpps v. PhUipps, 5 Q. B. D. 60. (0 Gen. Prov. 24. («) Ex parte JJitton, in re Woods, 13 Ch. D. 318. (v) Gen. Prov. 30. (w) Simmons v. Storcr, 14 Ch. D. 154. it) Gen. Prov. 31. 8S THE LAW OF PRACTICE, already objected to, such Order as may seem just may he made on application to a -Judge at Chambers (y), on the original evidence, or on further evidence if directed by the Jndge (z). Costs cannot ordinarily be taxed by a District Registrar { L. J. Ch. D. llii. (/) Storey v.' Waddle, 4 Q, B. D. 239.^ (g) Chapman v. Real Property Trust, 1 Ch. D. 732. (h) 0. LI. r. la. 90 THE LAW OF PRACTICE. diction to force an interlocutory application on the hear- ing of the -Indue to whom such cause is transferred (/). 121. A Judge of the Chancery Division who has made :i winding-up or administration Order has power, without any further consent (,/), on ex parte application (A;), to order the transfer to himself of any action in any other Division by or against the company or representatives of the testator or intestate (I). So, after decree, he may transfer to his own Court an action of devastavit (m), and while an administration action is pending, he may thus transfer any action brought elsewhere against the executor qua executor, hut not otherwise (/?). But where a creditor's action is thus transferred after an administration Order, it will not necessarily be stayed (o). 122. The Court or a Judge may, at the instance of a defendant (}>), consolidate actions (q), and after con- solidation may add new defendants (r) ; and on the application of different plaintiffs, may enlarge the time for the next step until one has been tried as a test-action (s), and where for any reason (as non-appearance of the plaintiff) such an action fails, may substitute another as a test-action (t). 123. Where an action has been brought on a contract, and the plaintiffs right has appeared from the pleadings, or (if none) by affidavit or otherwise, but the defendant alleges a right to be relieved from liability, an Order may be made for the preservation or interim custody of the subject-matter, or for bringing into Court or otherwise securing the amount, in dispute (tt). And generally, the Court or -Judge may, on application by a party, make an (/ Uoyd v. Jones, 7 Ch. D. 390. {j, 1 a n StiMs' Estate, Hanson v. Stubbs, 8 Ch. D. 154. ('/ /,, re Landore Siemens sir, l Co., 10 Ch. D. 489; Field v. Fitld, W. .'.'. 1-77, 98 ; Whittaker v. Robinson, do. 201. [I) o. LI. r. 2a. (m) In n Tvnrns, 38 L. T. 679. in) Chapman v. Mason, 40 L. T. 678. o /„ n Timms, W. X. 1878, 1 tl ; 38 L. T. 679. Amos v. Chadwick, 1 Ch. D. 869. I. I.I. p. i. (r) In n WorOey, 1 Qh, D. 180. (,) Amos i Chadwick, t Ch. \). 869; Bennett v. LordBwry, 5 C. P. D. 339. ■ Robin Ml v. Chadwick, 7 Ch. I). 878 ; Akmh v. Chadwick, S Ch. D. 459. 0. LIJ. rr. 1, 5. TRANSFER. — INTERLOCUTORY APPLICATIONS. 01 Order on terms for mandamus, injunction, or for a receiver; or otherwise for detention, preservation, or inspection of the subject-matter of the action (v), or for sale of any goods which it is desirable to have sold at once as being perishable, likely to be injured by keeping, or for any other just and sufficient reason (w). And a writ of injunction being abolished, injunction can only be obtained by Judgment or Order (x). A defendant may apply before judgment for injunction or for a receiver, even where the plaintiff has given notice of a similar motion, but the plaintiff himself will generally be appointed (y). Such" jurisdiction may be exercised by the Court of Appeal even where no previous application has been made to a Divisional Court (z). But no such jurisdiction as to inspection may be exercised by the Masters of the Common Law Divisions (a). An application (1) by the plaintiff for mandamus, injunction, or a receiver, may be ex parti' or with notice ; if for detention, preservation, or inspection, on notice to the defendant after writ of summons : ("2) by an}' other party, after his appearance and on notice to the plan- tiff (b). Where a specific chattel claimed in an action is retained by the other party b}' virtue of a lien or other- wise as securit}-, the Court or Judge, on being satisfied by the pleadings or affidavit or otherwise, may order the property to be delivered up on payment into Court of the amount claimed in respect of such lien with or without interest and costs (c). But solicitor's lien does not pro- tect any papers in the solicitor's hands from production for inspection, if ordered ( Do. r. 4. m) Evans v. Pvleston, W. N. 1880, 127. n) 0. I. III. r. '■',. (o) Delmar v. Freemanile, 3 Ex. D. 'I'M. In re Oakwell Collieries, 7 Ch. L>. 706. ((£) (Jraiie v. Taylor, 27 W. H. 412. SALE. — CHAMBERS. 93 registration ns a lis pendens of an action which lias now been dismissed (/•), such motion to be intituled "In the mutter of 80 & 31 Vict. c. 47 and in the matter of [the action j" Is), for making an Order of the House of Lords an Order of the High Court (t), &c. And applications to assign an administration bond (u), and to make a Kule to pay money under an agreement of reference a rule of Court (v), are not motions in an action, and do not require notice. Where the party giving notice does not appear, and the party served does, the latter may be al- lowed costs (w). But if a party served has no interest (x), or if the notice is clearly invalid (y), he is not entitled to appear by Counsel merely to ask for costs. 126. A. Without hare, a plaintiff may serve any notice, petition, or summons on any defendant who has not appeared within the time limited (z). B. With leave, obtained ex parte, he may serve notice of motion along with the writ of summons, or before the expiration of time limited for appearance ((/). C. The Court or a Judge may, where necessary notice has not been given, dismiss the application, or adjourn the hearing until such notice is given (b), and generally may adjourn the hearing of any application from time to time on terms (c), and also may discharge an interlocutory Order made by consent given under error on the side of one party thereto (d). 127. Applications at Chambers are made by summons in a summary way {e), and may be made before a Master in the Common Law Divisions, except such as concern (1) criminal proceedings and the liberty of the subject, (r) Pon'e;/ v. Bosanquet, 7 Ch. D. 541. (s) Glutton v. Lee, 7 Ch. D. 541 n. (t) British Dynamite Co. v. Krebs, 11 Ch. D. 443. (u) /■/ tin goods of Man/ Cartwright, 1 P. D. 422. (v) In re Phillips v. Gill, 1 Q. B.' U. 78. tw) Berry v Exchange Trading <'<>., 1 Q. B. D. 77. (x) Campbell v. Holy Land, 7 Ch. 1». 136. (y) Daubney v. Shuttleuorth, 1 Ex.. D. 53. (z) O.LI II r. 7. (a) Do. r. 8. (b) Do. r. 5. (c) Do. r. ti. (d) Mullins v. Howell, 11 Ch. D. 763. (e) 0. L1V. r. 1. 91 THE LAW OF PRACTICE. (2) transfer of actions, (3) settlement of issues not by consent, (4) discovery and inspection under 0. LI I. r. 3 (/), (5) appeals from District Registrars, (6) prohibitions, injunctions, and similar Orders, (7) awarding or reviewing taxation of costs, (8) charging Orders on stock not being Orders nisi, (9) acknowledgements of married women. As to interpleader : — where (1) all parties consent to a final determination without a Jury or a Special Case, and where (2) one party desires such a determination as to a sum less than £50, the question shall be determined by tlic Judge, unless the parties agree to refer it to the Master; in all other cases the Master has jurisdiction (g), A master or a District Registrar has no jurisdiction as to leave tor serving a writ of summons or notice out of the jurisdiction (//). 128. An appeal lies from a Master to a Judge at Chambers by summons made returnable (i) within four days after the Master's decision, or further time as allowed (./'), and such time may, under certain circum- stances, be enlarged (k) ; but an appeal shall be no stay of proceedings, unless so ordered by a Judge orMaster(Z). An appeal to the Court in the Common Law Divisions shall be by motion on notice so made that the motion itself may be heard within eight days (m), or nine, if the eighth day be a Sunday (u), or, if no Court be mean- while sitting, on the first du} T on which the Court sits alter the eight days (o). 129. Where the facts are undisputed, questions of law may be stated in the form of a special case A. by concurrence of the parties, after issue of the writ of summons { j>). (/) fee para. 123. 0. LTV n: 2, 2a, Nov., 1878. Do. r. 21,. '/nn i'litmif'fil Association. 4 C. P. D. 2b'3. 1 I.IV. r. r,. (m) Fox \. Wallis, 2 C. P. D. 15. n) Taylor v. Jones, 1 C. P. D. 87 ; and cf. 0. LVII. r. 3, para. 130. (o) 0. LIV. r. 6; &8 amended March, 1879, subsequently to Crom v. Samuels, - C. P. I». '-1 ; Hunt- v. Sheffield, i Ex. D. 150 ; Forrest v. Davies, 2'i \\". K. '•'■'■ I. ( 'n in,' titled Rule, see Stirling v. Da Barry, 5 (j. B. 1). 65. (p) 0. XXXIV. r. 1. CHAMBERS. — TIME. 95 B. by Order of the Court or Judge (q), at any stage between appearance and trial (r) ; wherever it appears, from the pleadings or otherwise, that it is convenient to raise such question first, and to stay all proceedings which the decision of such question may render unneces- sary. Except in extreme cases, the Court of Appeal will not interfere with a Judge's discretion in so doing (s). And by analogy, at the trial, if it appears that the decision of a question of law may render a question of fact un- necessary, the Court will hear the question of law first (t). But where a married woman, infant, &c. is a party, no special case shall be set down without leave on applica- tion, supported by evidence that the facts are true so far as the interests of such person are concerned (u). The parties to a special case may agree in writing on a liqui- dated sum payable by one to the other on judgment, with or without costs, and enforceable by execution (v). But no special case can be stated under 13 & 14 Vict, c. 35 (w). Where questions of fact are not sufficiently defined in the pleadings, they may be directed to be stated in the form of issues, to be settled, if the parties differ, bv the Judge (.<•). 130. In computing time, months are generally calendar months (//) ; Sunday, Christmas Day, and (food Friday, are not counted in time limited to less than six days (a); nor Sunday or other office holiday, when by the expiration of the time limited, any act or proceeding cannot be done or taken on that day (a). But service of notice (as of an appeal) is not an act which requires the offices to be opened (6). Pleadings shall not, without direction, be amended or delivered in the Long Vaca- te) Do. r. 2. (r) Metropolitan Board of Works v. New Nicer Co., 2 Q. B D 67 is) Do. (t) Pooleu v. Driver, 5 Ch. D. 460. (tt) <». XXXIV. r. 4. (r) Do. r. b'. (w) Do. r. 7. (.r) O. XXVI. ()/) O. LVI1. r. 1. (2) Do. r. 2. (a) Do. r. 3. (b) Ex parte Xaffcry, re Lambert, 5 Ch. D. 365. On THE LAW OF PRACTICE. tion (c), nor shall it, without direction, be reckoned in the time allowed for filing, amending, or delivering any pleading (d). Service of notice or proceedings after six o'clock shall count as on the following day, and after two o'clock on Saturday as on the following Monday (e). 131. A. Time for delivering or amending pleadings may be enlarged by written consent (/), or senible, further enlarged (g). B. Time for any act or proceeding may be enlarged or abridged upon terms by a Court or Judge, even though application is not made until after the expiration of such time (//). But no Order can be made for leave to do one act after another, where the Rules direct it to be done before [e.g. leave to join another cause of action with an action for recovery of land, cannot be obtained after the issue of the writ(i)], or at the same time [e.g. no Order that costs should not follow the event of a trial by a jury, can be obtained on application to the Judge after the trial (,/ )]. Nor can the time be extended for renewing a writ, where the claim is already barred by the Statute of Limitations (k). The Court of Appeal has original jurisdiction to extend or abridge time (I). 132. Proceedings in a District Registry to final judg- ment included, shall be taken in the District Registry, in the Books of which shall be entered (1) every final judg- ment and every Order for account on a defendant's default, but except on default, a District Registrar has no power to order account (m), (2) interlocutory judgment, and final judgment after assessment of damages on defaull of appearance or of pleading, unless otherwise ordered by the Rules of Court or Judge (it). Actions in (. 171. (k) Doyle t. Kaufman, S Q. li. D. 340. (/) Per Jessel, M. It., in /'uracil v. Great Western Railway Co., ] Q. B. D. 686. (to) Irlam v. hlam, 2 Ch. D. 608. (»; O. XXXV. r. Is. TIME. — DISTRICT REGISTRY. 97 the Common Law Divisions shall be entered with the Associates, and in the District Registry (o). An action in the Chancery Division commenced in a District, Registry, ought to be tried in London before the Judge of* the Chancery Division to whom it has been assigned (p). And where, by a decree of the High Court, account is ordered in a District Registry, a subsequent sale under direction of the Court may be held in London, at the Judge's discretion (q). 133. Writs of execution arising out of an action in a District Registry, Orders for examination of debtors for garnishee purposes, garnishee Orders, and charging Orders nisi, shall issue out of the District Registry, unless otherwise directed (r). Costs shall be taxed in a District Registry only (1) where the District Registrar has power to enter final judgment on default of the defendant («) In re Smith, Hutchinson v. Ward, 6 Ch. D. 692. (q) Macdonald v. Foster, 6 Ch. 1). 193. (r) 0. XXXV. rr. 3, 3a. (») Do. r. 3 ; and see Irlam v. Irlam, 2 Ch. D. 608. (t) Day v. Whittaker, 6 Ch. I>. 734. (u) Owen v. /lens/taw, 7 Ch. D. 385. (v) O. XXXV r. 5. [tc) Irlam v. Irlam, 2 Ch. D. 608. (x) In n Smith, Hutchinson v. Ward, 6 Ch. D. 692. (ivisioii (/). 136. Proceedings which fail to comply with Rules of (Ourt are not thereby avoided, unless so directed, but may he set aside as wholly or in part irregular, or amended or otherwise dealt with (g) ; and any defects or . n-ors may he amended on terms, and all necessary 0. XXXV. rr. 11, 12. ui l>,. r. M. Do. r. 13. (c) Ward v. Wyld, 6 Ch. D. 779. d 0. XXXV. r. 13. /;/, ,„;»> ih'iiii Waste Co. v. Lane, W. N. 1876, 292; Lumb v. Whiteley, W. X. 1877, 40. . and Non-compliance i/>. shall apply, as far as applicable, to civil proceedings on the Crown side of tin 1 Queen's Bench Division [including Mandamus, Quo Warranto, and Prohibition (m)], and to all proceedings on the Revenue side of the Exchequer Division (n) ; bul otherwise nothing in these Rules shall affect the pro- cedure or practice in ill Criminal Proceedings, (2) Pro- ceedings on the Crown side of the Queen's Bench Division, and (3) the Revenue side of the Exchequer Division, and (4) proceedings for Divorce or other Matrimonial Cause (o). [h) (>. LIX. r. 2. (t) 0. LXII. r. 2. ,/> Do. r. 3. (k) Do. r. i. (I) Do. r. 5, .in) Do. r. (?. wo For ;i case previous to these Rules of April, 1SS0, see Attorney-General v. Constable, 4 Ex. D. 172. (o) 0. LX11. r. 1. INDEX. PAGE ACCOUNT application for ......... 21 direci ion for . . . . • • • • .'54, <>7 indorsement on writ for ....... 13. 53 in Districl Registry 96,97 ADMINISTRATION of estates 6, 7, 10 Order for . 90 ADMISSION of allegations of fact ....... 35.40 ol' documents ......... 54 of pleadings ......... 53 Order on 40, •'.<; AFFIDAVIT evidence on ........ 54, 75 i es-examination on ....... 55, 56 AMENDMENT of- errors 68, 98 of notice of appeal ....... TS of pleadings . . i'Z ANSWER to interrogatories . . . . . . . . 48, 49 APPEAL to Courl of Appeal . . . . . . .1,2,3,74 lions ■ of Lor Is 2. 82, . v -"> Privy i louncil ........ 3 from Inferior Courts . . . . . . 7. 82 ( !ounty Ci mil ........ 7l' Interlocutory Order 33, 63 costs of . . . . . . . . . 7t'. entry of . . . . . . . . . . 77. 7S ex parte application for ....'... 78 notice of ......... 74 security for costs of bO 102 INDEX. APPEAL— continued, time for . ... . . . . . . . 78 variation of, by respondent .76 APPEARANCE . . . 17,96 ATTACHMENT writ of •'■' ... 68 none by Referee . . . . . ... 62 BANKRUPTCY appeal from Court of , . . ' 2 time for . . ...... 80 jurisdiction in . , 2 causes no abatement 27 CAUSES OF ACTION . 31 CHAMBERS applications at, by summons . . * . .8, 93, 94 CHARGING ORDERS how made 29. 72 CLAIM form of pleading in statement of 33, 35 when necessary 37 COMPANIES rules in winding up ....... . 10 Order in 90 CONSOLIDATION. . . . . . . . . 90 COSTS generally . .. . . . . *. . 9,73,83.84 of appeal ... . . ' • 76, 77 security for - . .....'. 44,80,84,85 solicitors' . ."•'". .' . . •..• '. . 85, 86 taxation of . . . . • . . . 39, 86, 87. 88 COUNTERCLAIM pleading of • . . . .30, 33. 34 when allowed . . . . . . . 34 COUNTY COURT appeal from . . . . . . . . 7, 72, 82 I sosts in . . . . . . . . . 9, 84 jurisdiction of . . . . . . . .10.83 transfer from 10, 97, 98 to 65, 98 INDEX. 103 PAOH DEFAULT of appearance IS of pleading 44 DEFENCE : grounds of 36, 38 pleading in statement of • . 33,36 where necessary- . . . . . . . . 37 withdrawal of "... 46 DEMURRER ...".. 40 DISCONTINUANCE ■. • . 45' DISCOVERY . . . 51,53 DISMISSAL . 46 DISTRICT REGISTRY 58,72,88,90,97 DIVISIONS OF COURT Chancery J, 6, 17, I'.), 17, 55. 58, 59, 00, 63, 79, 87, 89. 97, 98 Common Law . 6, ri, 17, 47. 58, [NFERIOB COURTS 7 > 10 = 82 INJUNCTION 5 ' ;)1 INQUIRIES 54 , 97 INSPECTION 52,94 refusal of ........ « 53 INTERLOCUTORY ORDER 11,76 \vhai is 63, 79, 80 INTERPLEADER 9, 32, 80, 94 INTERROGATORIES 17 answer to 48. I'.i ISSUE OF FACT 9,57,59,60,63,66,95 JOINDER OF ISSUE 39, 67 JUDGMENT in ' on for 64 entry of 65,67 by default 45. 65 on admissions 40 setting aside . . . . • • • • • 68 JURISDICTION of Courts L '-'• 3 service out of 15,94 .M'KV trial by 58,62,83 LEAVE TO DEFEND title i" land 18 on writ specially indorsed 2o. 98 LIQUIDATED DEMAND anion for . . . . ' 12, 97, 98 LUNATICS claim by or against 24,53 interested in Special Case . . . . . 96 INDEX. 105 PAOI MARRIED WOMEN claim by or against . . - . . . . . 23. 24 interested in Special i lase ...... 95 marriage causes qo abatement ..... 27 MASTER jurisdiction of 93, 94 MOTfONS ' 92, 93 NON-COMPLIANCE 93 NOTICE in lien of service . . . . . . . . 14, 15 to parties interested 25, 27 PARTIES change of ......... . 27 who may be ........ 22 third parties 17 PARTNERS appearance of 18 execution against <;9 firm of 24 PAYMENT INTO COURT 38 PETITION evidence in support of 56 PLEADING amendment of 42 default of 44 form of 35 PRIVY COUNCIL appeal to 3 PRODUCTION what privileged from 60 QUEEN'S BENCH DIVISION Crown side of O'J QUESTIONS of law 59. 94. '.»"> of fact a 94 106 INDEX. PAG* BECBIVEB 5,91,97 B ECO VERY OF LAND 15,18,19,68,96 BEFEREE !». 62, 66. 89 UKI'I.Y 39,68 bepresentative suing for others ........ 23 taking benefit of decree 28 SALE BY COURT 5,6,7,92 BEBVICE ut of jurisdiction ........ 15, !)4 SHORT CAUSE 37 SOLICITORS costs of 85, 86 lien of 72 petitions by . 72 SPECIAL i ASK 94, 96 MAY OF PROCEEDINGS on appeal 81, 82 un new trial ......... 64 si BIKING OUT interrogatories ......... 48 parties .......... 20 pl( adings 48 M SIMONS al Chambers 8, 93, 94 writ of 12 TAXATION OF COSTS 39,48,86,87 1 BANSFER OF ACTIONS to another Division 11, 89, 90 to U igh Court . . . . . . 10, 97, i>8 INDEX. 10 pa a i TIME for delivering pleadings .... 37, 3?. 39, 40 for appeal 7s. 79 enlargement of 95J 9t$ TRIAL iiiodc of 57 new ........... r.-j notice of. .... ;>7 WRIT of summons . . . . . . . . 13 of execution ......... 68 '.'7 THE ENI> BRADBURY, M.NKW, .t to., PRINTERS, WH1TEFRIAI [A Ca 'alogue of New La w Works may be obtained gratis upon application toS.&E.] STEVENS AND BAYNES' LAW PUBLICATIONS. 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