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 SUPREME COURT OF JUDICATURE ACTS 
 1873 and 1875.
 
 THE 
 
 SUPREME COURT OF JUDICATURE ACTS 
 1873 and : 1875. 
 
 Sdjctmlc of i%ulc$ antr jforms, 
 
 AND OTHER 
 
 KULES AND ORDEES. 
 
 WITH NOTES. 
 
 By ARTHUR WILSON, 
 
 OF THE INNEF. TEMPLE, BAKRISTEK-AT-LAW. 
 
 LONDON: 
 STEVENS AND SONS, 119, CHANCERY LANE, 
 
 1875.
 
 
 LONDON : 
 
 sjxvists a5d bichabdson, printers, 5, great queen street. 
 Lincoln's inn fields, w.c.
 
 PREFACE. 
 
 A few words in explanation of tlie plan of this Look may- 
 facilitate its use. 
 
 The Supreme Court of Judicature Act, 1873, contains enact- 
 ments affecting, first, the organisation of the Court ; secondly, 
 the substance of the law ; thirdly, Procedure ; though as this 
 division is far from an exact one many sections properly fall 
 under more than one of these heads. The Act of 1875 con- 
 tains in the main alterations of or additions to the earlier 
 Act in points falling under the first two heads ; hut it also 
 contains sections affecting procedure, as well as some miscel- 
 laneous matters. The Schedule of Pules appended to the latter 
 Act contains the great bulk of the provisions relating to Pro- 
 cedure. 
 
 The enactments to be considered being thus scattered 
 ■over two Acts and a Schedule, besides some additional 
 Pules since issued, I have endeavoured to find a plan by 
 which, without departing from the sequence of the Acts, 
 or attempting to consolidate Avhat the Legislature has not 
 consolidated, a reader may yet always be enabled to find the 
 whole of the provisions upon any one subject grouped to- 
 gether. Accordingly, in handling the Act of 1873, those 
 sections which deal with Procedure have been merely given in 
 their order, with seldom more than a reference to the rules 
 relating to the same subject. But under each of the sections 
 which affect the organisation of the Courts, or matters of sub- 
 stantive law, it has been sought to show the whole of the 
 provisions of the new legislation upon the subject matter. Any 
 parts of the section repealed are indicated by italics; the sub- 
 stituted or amending section of the later Act is printed under- 
 neath; and such notes are added us seemed likely to be useful. 
 In like manner, in dealing with the Schedule of Pules, all 
 lections of either Act relating to Procedure are reprinted 
 
 i<incx
 
 IV PREFACE. 
 
 immediately after the Rules upon the same subject. This 
 mothocl involves printing many tilings twice over. But it 
 seems to secure that a reader can commonly find the whole of 
 the provisions he wants at once. 
 
 The Rules of Procedure in the Acts and Schedule are hi 
 some cases entirely new. "Where this is so I have pointed it out, 
 and, if it seemed necessary, endeavoured to explain then effect. 
 In some cases they are adopted from the existing rides of some 
 of the Courts, hut with substantial modifications. In such cases 
 I have sought to show the effect of the modifications, and for 
 that purpose it has sometimes been necessary to examme hi con- 
 siderable detad the existing practice and past decisions. In 
 many cases, again, a rule is simply adopted without alteration 
 from that hitherto in force either in the Common Law Courts or 
 in Chancery. In such cases I have thought it best merely to 
 show the source from which the rule is taken, and the books in 
 which it may be found discussed, and not to set out the deci- 
 sions and authorities affecting it. Any other course was un- 
 necessary, for all that is needed has already been done in Mr. 
 Day's edition of the Common Law Procedure Acts, and Mr. 
 Osborne Morgan's Chancery Acts and Orders. And it would 
 have been almost impossible to go over the ground already 
 traversed by those writers without unduly appropriating the 
 fruits of other men's labours. 
 
 I am indebted to my learned friend, Mr. W. M. Fawcett, of 
 the Chancery Bar, for reading the sheets of this book dining its 
 progress through the press, and for many valuable suggestions. 
 And I have to thank my learned friend, Mr. Prancis Parker, of 
 the Home Circuit, for the preparation of the Index. 
 
 A. W. 
 
 Temple, September, 1S75.
 
 TABLE OF CONTENTS. 
 
 PAGE 
 
 PEEFACE - iii 
 
 TABLE OF CASES CITED ix 
 
 INTRODUCTION 
 
 .SUPREME COUET OF JUDICATURE ACT, 1873 :— 
 
 Preliminary - - - - - - -41 
 
 Part I. — Constitution and Judges of Supreme Court 42 
 Part II. — Jurisdiction and Law - - - - 51 
 
 Part III. — Sittings and Distribution of Business - 68 
 Part IV. — Trial and Procedure - - - - SG 
 
 Part V.— Officers and Offices - - - 101 
 
 Part VI. — Jurisdiction of Inferior Courts - - 109 
 Part VII. — Miscellaneous Provisions - - - 111 
 Schedule - - - - - - - -114 
 
 ■SUPREME COURT OF JUDICATUEE (COM- 
 MENCEMENT) ACT, 1871 - - - - 125 
 
 .SUPREME COURT OF JUDICATURE ACT, 1875 - 12G 
 
 First Schedule - - 151 
 
 Order I. — Form and Commencement of 
 
 Action ----- 151 
 Order II. — Writ of Summons and Proce- 
 
 dure, &c. - 158 
 
 Order III. — Indorsements of Claim - - 1G5 
 
 a 3
 
 VI TABLE OF CONTENTS. 
 
 SUPEEME COURT OF JUDICATURE ACT, 1875— 
 
 continued. PAGE 
 
 Order IV. — Indorsement of Address - - 1G7 
 
 Order V. — Issue of Writ of Summons - 168 
 
 Order VI.— Concurrent Writs - - 172 
 Order VII. — Disclosure by Solicitors and 
 
 Plaintiffs - - - - 173 
 
 Order VIIL— Renewal of Writ - - - 171 
 
 Order IX. — Service of Writ of Summons - 175 
 
 Order X. — Substituted Service - 179 
 
 Order XL — Service out of the Jurisdiction - 179 
 
 Order XII. — Appearance * - - - 181 
 
 Order XIII. — Default of Appearance - - 185 
 Order XIV. — Leave to Defend where Writ 
 
 specially Indorsed - - - 189 
 Order XV. — Application for Account where 
 Writ Indorsed under Order 
 
 III, Rule 8 - - - - 191 
 
 Order XVI.— Parties - - - - - 192 
 
 Order XVII. — Joinder of Causes of Action- - 200 
 Order XVIIL— Actions by and against Lunatics 
 
 and Persons of Unsound Mind 203 
 
 Order XIX.— Pleading Generally - - - 203 
 Order XX. — Plea ling matters arising pending 
 
 the Action - -214 
 
 Order XXL— Statement of Claim - - 215 
 
 Order XXII.— Defence - - - - - 217 
 
 Order XXIIL— Discontinuance - - - - 220 
 
 Order XXIV— Reply and subsequent Pleadings 222 
 
 Order XXV.— Close of Pleadings - - - 222 
 
 Order XXVL— Issues 222 
 
 ( >rder XXA r IL— Amendment of Pleadings - - 223 
 Order XXVIII.— Demurrer - - - - 225 
 Order XXIX.— Default Of Pleading - 228 
 Order XXX. — Payment into Court in Satisfac- 
 tion - - - 230 
 Order XXXI. — Discovery and Inspection - 232 
 Order XXXIL— Admissions ... - 239 
 Order XXXIII.— Inn varies and Accounts - - 239
 
 TABLE OF CONTENTS. 
 
 SUPEEME COUET OF JUDICATUEE ACT, 1875- 
 continued. 
 Order XXXIV. — Questions of Law 
 Order XXXV. — Proceeding in District Eegis- 
 tries - - - - - 
 Order XXXVI.— Trial ... 
 Order XXXVII. — Evidence Generally - 
 Order XXXVIIL— Evidence by Affidavit 
 
 Order 
 
 Order 
 Order 
 Order 
 Order 
 Order 
 Order 
 Order 
 
 Order 
 Order 
 Order 
 Order 
 ( >rder 
 Order 
 
 Order 
 Order 
 Order 
 Order 
 Order 
 Order 
 Order 
 Order 
 Order 
 Order 
 Order 
 
 XXXIX. — Motion for Xew Trial 
 XL. — Motion for Judgment 
 XLI. — Entry of Judgment - 
 XLII. — Execution 
 
 it 
 
 XLIIL— Writs of Eieri Facias and El 
 XLIV. — Attachment - 
 XLV.— Attachment of Debts 
 XLVI. — Charging of Stock or Shares 
 and Distringas ... 
 XLVIL— "Writ of Sequestration - 
 XLVIII. — Writ of Possession - 
 XLLX.— Writ of Delivery - 
 
 L. — Change of Parties by Death, &c. 
 LI. — Transfers and Consolidation 
 LII. — Interlocutory Orders as to Man- 
 damus, Injunctions or Interim 
 Preservation of Property, &c- 
 LIII. — Motion and other Applications 
 LIV.— Applications at Chambers 
 L V.— Costs - 
 LVI. — Notices and Paper, &c. - 
 LVIL— Time - 
 LVIIL— Appeals - 
 
 LIX. — Effect of Xon-compliance - 
 LX.— Officers - 
 LXI. — Sittings and Vacations 
 LXII. — Exceptions from the Eules 
 LXIII. — Interpretation of Terms - 
 
 Appendix A. 
 
 Part 1. — Forms of Writs of Summons, &c. 
 Part :'. — General Endorsements - 
 
 PAGE 
 
 240 
 
 242 
 248 
 
 2G4 
 2G6 
 2G7 
 269 
 272 
 273 
 279 
 279 
 280 
 
 283 
 28G 
 
 2S7 
 287 
 288 
 290 
 
 292 
 295 
 297 
 298 
 299 
 300 
 301 
 307 
 307 
 308 
 312 
 312 
 
 315 
 318
 
 tyiii TABLE OF CONTEXTS. 
 
 .SUPREME COURT OF JUDICATURE ACT, 1875— 
 
 continued. page 
 
 Appendix B. 
 
 Forms of Proceedings - - - - - -327 
 
 Appendix C. 
 
 Pleadings - 333 
 
 Appendix D. 
 
 Forms of Judgment - - - - - -378 
 
 Appendix E. 
 
 Forms of Praecipe 380 
 
 Appendix F. 
 
 Forms of Writs 382 
 
 Second Schedule. 
 
 Enactments repealed - - - - - -389 
 
 ORDER IX COUXCIL, 12th AUGUST, 1875. 
 
 Additional Rules ------- 390 
 
 Orders I. to V.— Printing - - - 391 
 
 Order VI.— Solicitors' Costs - - 394 
 
 Schedule of Costs ------- 396 
 
 Special Allowances and General Provisions - - 410 
 
 ORDER IX COUXCIL, 12th AUGUST, 1875. 
 
 District Registries - - - - - - -418
 
 No scale of Court fees has as yet 
 been issued under the Judicature Acts. 
 Should any such be issued, or any 
 further Orders or Eules under the Acts, 
 they will be published in a Supplement 
 to the present Work.
 
 TABLE OF CASES. 
 
 
 Page 
 
 
 Page 
 
 Agra Bank v. Leigh ton 
 
 164 
 
 Bush v. Beavon 
 
 61 
 
 Allen. Nicholl v. 
 
 65 
 
 Buxton v. Monkhouse 
 
 66 
 
 Allfrey. Flitters v 
 
 92 
 
 
 
 Althusen v. Maljarejo 
 
 ISO 
 
 Carron Iron Co. The 
 
 
 Alvez. Foster v. 
 
 292 
 
 v. Maclaren 
 
 177 
 
 Amman Company. Cowell v... 
 
 91 i 
 
 Casella v. Darton 
 
 164 
 
 Anderson. Doyle v. ... 
 
 292 
 
 Cass Taylor v. 
 
 92 
 
 . Thomson r. 
 
 262 
 
 Caven v. Smith 
 
 92 
 
 v. Towgoocl 
 
 292 
 
 Cecil V. Briggs 
 
 292 
 
 Andrews v. Salt 
 
 67 
 
 Cheetham. Beardsall v. 
 
 292 
 
 Armstrong v. Die Elbinger 
 
 
 Cherry v. Thompson ... 
 
 180 
 
 Gesallschaf t 
 
 181 
 
 Church v. Barnett 
 
 248 
 
 Ashcrof t v. Foulkes 
 
 92 
 
 Churchill v. Bank of England 
 
 286 
 
 
 
 Clarke. Reg. v. 
 
 67 
 
 Baker v. Tynte 
 
 2S5 
 
 Coates. Hirsch v. 
 
 281 
 
 Balmain v. Lickfold ... 
 
 91 
 
 Cole r. Sherard 
 
 173 
 
 Balmf orth v. Pledge ... 
 
 93 
 
 Commissionners of Heme Bay. 
 
 
 Bank of England. Churchill r. 
 
 286 
 
 Webb v. 
 
 65 
 
 Bank of Ireland v. Perry 
 
 156 
 
 Coningham. Eisdell r. 
 
 282 
 
 Barkes. Lewis r. 
 
 292 
 
 Courtenay v. Wagstaff 
 
 92 
 
 Barnett. Church v. 
 
 218 
 
 Cowell v. Amman Co. 
 
 91 
 
 Barry. Haley v. 
 
 286 
 
 Cragg r. Taylor 
 
 285 
 
 Bartlett v. Bartlett 
 
 292 
 
 v. 
 
 2S6 
 
 Bay ley. Mills v 
 
 262 
 
 Craven v. Smith 
 
 91 
 
 Bay lis v. Lintott 
 
 91 
 
 Crawshay v. Thornton 
 
 156 
 
 Beard v. Perry 
 
 92 
 
 
 
 Beardsall v. Cheetham 
 
 292 
 
 Darton. Casella c. 
 
 1C4 
 
 Beavan. Bush v. 
 
 ~64 
 
 Delaval. Rex c. 
 
 67 
 
 41 Tnt.il A v f A „ 1 
 
 285 
 92 
 
 Dent v. Dent 
 Diamond. Johnson v.... 
 
 281 
 
 £■• J_jOI (-1 WXI'llll ... 
 
 Bennett r. Thompson 
 
 281 
 
 Benson v. Paull 
 
 61 
 
 Dickson v. Neath & Brecon 
 
 
 Berkley r. Sewell 
 
 66 
 
 Ry. Co. 
 
 280 
 
 Best v. Hayes 
 
 156 
 
 Die Elbinger Gesallschaft. 
 
 
 Bettle. Lowndes v. 
 
 66 
 
 Armstrong v. 
 
 181 
 
 Blackmore v. Higgs ... 
 
 92 
 
 Dixon v. Wrench 
 
 286 
 
 Blenkin. Lyons v. 
 
 67 
 
 Douglas. Doyle v 
 
 292 
 
 Borch. Sichel v. 
 
 180 
 
 Doyle v. Anderson ... 
 
 292 
 
 Boulding v. Tyler 
 
 ;n 
 
 ■ /-. 1 (ouglas 
 
 292 
 
 Breslaner v. Pellas ... 
 
 91 
 
 Drummond v. Drummond ... 
 
 180 
 
 Bridge v. Gt. Junction Ry. Co. 
 
 66 
 
 Dunn. Wood v. 
 
 282 
 
 Bridger. Emanuel v. ... 
 
 282 
 
 Durham v. Spence 
 
 ISO 
 
 Briggs. Cecil v. 
 
 292 
 
 
 
 Brodrick. Hollingsworth v. ... 
 
 292 
 
 Earle. Fuller v 
 
 286 
 
 Brown. Tilbury v. 
 
 2S1 
 
 Edge. Smith v 
 
 91 
 
 Burton v. Roberts 
 
 281 
 
 Edward. Hough v. 
 
 2S2
 
 TABLE OF CASES. 
 
 E. I. Company. Innes r. 
 Eisdell v. Coningham 
 Emanuel v. Bridger ... 
 European Bank. Tanner v. ... 
 Exparte Greenway ... 
 Exparte Hawker 
 Exparte Eocke 
 Exparte Turner 
 
 Flitters v. Allfrey 
 
 Foster v. A hey 
 
 . Wheatcroft v. 
 
 Eotherby v. Metropolitan Eail- 
 
 way Co. 
 Foulkes. Ashcroft v. ... 
 Fowler v. Eoberts 
 Fuller v. Earle 
 
 Gandy. Powle v. 
 
 Glasgow and South Western 
 Railway Co. Mackereth v. 
 
 Gray. West v. 
 
 Gt. Junction Ey. Co. Bridge v. 
 
 G. W. Ey. Company. Tattam v. 
 
 Gudgeon. Linford v. 
 
 Guest v. Poole and Bourn- 
 mouth Railway Co. 
 
 Haley. Smith v. 
 
 v. Barry 
 
 Harnor. Smith r. ... 
 Hatch v. Lewis 
 Hayes. Best v. 
 Higgs. Blackmore v. 
 Hill v. Hill 
 
 Hinde v. Sheppard 
 Hirsch v. Coates ... 
 Holbrow v. Jones 
 Hollingsworth v. Brodrick . . . 
 Holloway. Eogers v. 
 Holmes v. Tutton ... 
 Hough r. Edward ... 
 Hurlston. Stanford v. 
 
 Ingate v. Austrian Lloyds. . . . 
 Innes v. E. I. Company 
 Irish Land Co. Xorris v, 
 
 Jackson v. Spittall 
 Jervis. Kinderley v. 
 Johnson v. Diamond 
 Jones. Holbrow v. ... 
 
 . Saul v. 
 
 ■ . Tapp v. 
 
 . Tapp v. 
 
 r. Thompson 
 
 • . Turner c. 
 
 Kelsey v. Kelsey ... 
 
 AGE 
 
 
 Pace 
 
 281 
 
 2S2 
 
 Kinderley v. Jervis 
 
 285 
 
 282 
 
 Lee. Mitchell v. 
 
 2S1 
 
 lot) 
 
 Legge v. Tucker 
 
 91 
 
 282 
 
 Leighton. Agra Bank v. 
 
 164 
 
 281 
 282 
 
 281 
 
 Lethbridge. Sharp v. 
 
 292 
 
 Lewis v. Barkes 
 
 292 
 
 
 . Hatch v. 
 
 92 
 
 92 
 
 Lickfold. Balmain v. ... 
 
 91 
 
 292 
 
 Lillecrap. Parr v. 
 
 91 
 
 93 
 
 Linford v. Gudgeon ... 
 
 93 
 
 
 Lintott. Bay lis v. 
 
 91 
 
 65 
 
 London & Limerick Steam- 
 
 
 92 
 
 ship Co. Towne r. ... 
 
 17S 
 
 281 
 
 Lord Osborne. Strachey v. ... 
 
 92 
 
 2 ;(3 
 
 Lord Oxford. Beavan v. 
 
 285 
 
 
 Lowndes r. Bettle 
 
 66 
 
 92 
 
 . Ward v. 
 
 65 
 
 
 Lyons v. Blenkin 
 
 67 
 
 177 
 
 
 
 91 
 
 Mackay. Sampson v. ... 
 
 91 
 
 6b' 
 
 v. ... 
 
 92 
 
 91 
 
 Mackereth v. Glasgow & South 
 
 
 93 
 
 Western Ey. Co. ... 
 Maclaren. The Cairon 
 
 177 
 
 65 
 
 Iron Co. (•. 
 
 177 
 
 
 Maljarejo. Allhusen v. 
 
 180 
 
 92 
 
 Marshall v. Martin ... 
 
 92 
 
 286 
 
 Martin. Marshall v. ... 
 
 92 
 
 92 
 
 M. of London. Tyson v. 
 
 65 
 
 92 
 
 Meier, Ee, Bouse and 
 
 262 
 
 156 
 
 Metropolitan Ey. Co. Fo- 
 
 
 92 
 
 therby v. 
 
 65 
 
 67 
 
 Metropolitan Ey. Co. Morgan v. 
 
 65 
 
 92 
 
 T\Iiles v. Presland 
 
 286 
 
 281 
 
 Miller v. Mjiia 
 
 281 
 
 91 
 
 Mills v. Bayley 
 
 262 
 
 292 
 
 Mitchell v. Lee 
 
 281 
 
 286 
 
 Monkhouse. Buxton v. 
 
 66 
 
 2S1 
 
 M ly v. Steward 
 
 93 
 
 2S2 
 
 Moore v. Watson 
 
 91 
 
 66 
 
 31' irgan v. iletroiaolitanEy. Co. 
 
 65 
 
 
 Murray v. Simpson ... 
 
 281 
 
 1S1 
 
 Myna. Miller v. 
 
 281 
 
 2S1 
 
 
 
 6i 
 
 Xeath & Brecon Ey. Co. 
 
 
 
 Dickson v. 
 
 280 
 
 ISO 
 
 Newby v. Van Oppen 
 
 177 
 
 2S5 
 
 Nicholl v. Allen 
 
 65 
 
 2S1 
 
 Xorris v. Irish Land Co. 
 
 64 
 
 91 
 
 
 
 164 
 
 Parker. Withers v. ... 
 
 158 
 
 2S1 
 
 Parr v. Lillicrai) 
 
 91 
 
 282 
 
 Paull Benson r. 
 
 64 
 
 2S1 
 
 Pellas r. Breslaner ... 
 
 91 
 
 281 
 
 Perry. Bank of Ireland v. 
 
 156 
 
 66 
 
 . Beard r. 
 
 92
 
 TABLE OP CASES. 
 
 
 'age 
 
 
 Page 
 
 Petre r. Petre 
 
 62 
 
 Stourton v. Stourton 
 
 67 
 
 Phillips. Stevens v. ... 
 
 282 
 
 Strachey r. Lord Osborne 
 
 92. 
 
 Pickersgill. Syers v. ... 
 
 292 
 
 Syers v. Pickersgill ... 
 
 292 
 
 Pinder. Slater v. 
 
 282 j 
 
 Sympson v. Prothero... 
 
 282 
 
 Pledge. Balmforth v.... 
 
 93 
 
 
 
 Pollock v. Turnock ... 
 
 164 
 
 Tanner v. European Bank . . . 
 
 156 
 
 Poole and Bournniouth Pail- 
 
 
 Tapp v. Jones... 
 
 281 
 
 way Co. Guest r. ... 
 
 65 
 
 v. ■ ■ 
 
 282 
 
 Porter. Watts v. 
 
 285 
 
 Tattan r. G. W. Ry. Company 
 
 91 
 
 Powle v. Gandy 
 
 92 
 
 Taylor r. Cass... 
 
 92 
 
 Presland. Miles?'. 
 
 286 
 
 . Cragg v. 
 
 2S5 
 
 Prothero. Sympson r. 
 
 282 
 
 
 286 
 
 
 
 
 Thomas. Tilley v. 
 
 64 
 
 Ee Andrews ... 
 
 67 
 
 Thompson. Bennett r. 
 
 92 
 
 Ee Rouse and Meier ... 
 
 262 
 
 . Cherry v. 
 
 180 
 
 Peg. r. Clarke 
 
 67 
 
 . Jones r. 
 
 281 
 
 Rex v. Delaval 
 
 67 
 
 Thomson. Anderson r. 
 
 262 
 
 Poberts. Burton r. ... 
 
 281 
 
 Thornton. Crawshay v. 
 
 156 
 
 jTcwlcr v 
 
 281 
 
 Tilbury r. Brown ... 
 Tilley v. Thomas ... 
 
 281 
 
 Pobertson v. Sterne ... ... 
 
 "91 
 
 64 
 
 Pogers r. Hollo way ... 
 
 286 
 
 Towgood. Anderson v. 
 Towne r. London and Lime- 
 
 292 
 
 Salt. Andrews v. 
 
 67 
 
 rick Steamship Co. 
 
 17S 
 
 Sampson v. Mackay ... 
 
 91 
 
 Tucker. Legge v. 
 
 91 
 
 
 92 
 
 Turner v »1 ones 
 
 281 
 
 V. Seaton and Beer 
 
 
 Turnock. Pollock ?\ ... 
 
 164 
 
 Ry. Co 
 
 282 
 
 Tutton. Holmes v. ... 
 
 281 
 
 Saul v. Jones ... 
 
 164 
 
 Tyler. Boulding v. 
 
 91 
 
 Seaton & Beer Ey. Co. 
 
 
 Tynte. Baker v. 
 
 285 
 
 Sampson r 
 
 282 
 
 Tyson v. M. of London 
 
 65 
 
 Sewell. Berkley v. 
 
 66 
 
 
 
 ShaqD r. Lethbridge 
 
 292 
 
 Van Oppen. New by r. 
 
 177 
 
 Sheppard. Hinde v. 
 
 92 
 
 Vaughan r. Weldon ... 
 
 180 
 
 Sherard. Cole v. 
 
 173 
 
 
 
 Sichel r. Borch 
 
 ISO 
 
 Wagstaff. Courtenay r. 
 
 92 
 
 Simpson. Murray v. 
 
 281 
 
 Ward v. Lowndes 
 
 65 
 
 Slater v. Pinder 
 
 282 
 
 Watson. Moore v. 
 
 91 
 
 Smith. Craven v. ... 
 
 91 
 
 Watts v. Porter 
 
 285 
 
 V 
 
 92 
 91 
 
 Webli v Ci immissioners of 
 
 
 v. Edge 
 
 Heme Bay ... 
 
 65 
 
 v. Haley 
 
 92 
 
 Weldv-.i. Vaughan v. ... 
 
 180 
 
 v. Harnor 
 
 92 
 
 West. Gray v 
 
 91 
 
 Sparks v. Young ... 
 
 281 
 
 Wheatcrof v. Poster... 
 
 93 
 
 Spence. Durham v. 
 
 180 
 
 Withers v. Parke - ' 
 
 158 
 
 Spittall. Jackson v. 
 
 180 
 
 Wood v. Dunn 
 
 282 
 
 Stanford v. Hurlston 
 
 66 
 
 Wrench. Dixon r. 
 
 286 
 
 Sterne. Robertson v. 
 
 91 
 
 
 
 Stevens v. Phillips 
 
 282 
 
 Young. Sparks r. 
 
 2S1 
 
 Steward. Moody v... 
 
 93 
 

 
 INTRODUCTION. 
 
 Origin of the Judicature Acts. 
 
 In the year 1867 a Royal Commission was appointed to 
 inquire into the operation and effect of the present constitution 
 of the Court of Chancery, the Superior Courts of Common Law, 
 the Central Criminal Court, the High Court of Admiralty, the 
 Admiralty Court of the Cinque Ports, the Courts of Probate and 
 of Divorce, the Courts of Common Pleas of Lancaster and 
 Durham, and the Courts of Error and of Appeal from all of 
 these Courts ; and into " the operation and effect of the present 
 separation and division of jurisdictions between the said several 
 Courts ; and also into the operation and effect of the present 
 arrangements for holding the sittings in London and Middlesex, 
 and the holding of Sittings and Assizes in England and Wales, 
 and of the present division of the legal year into terms and 
 vacations, and generally into the operation and effect of the 
 existing laws and arrangements for distributing and transacting 
 the judicial business of the said Courts respectively, as well in 
 I 'milt as in Chambers, with a view to ascertain whether any and 
 what changes and improvements, — either by uniting and con- 
 solidating the said Courts or any of them, or by extending or 
 altering the several jurisdictions, or assigning any matters or 
 causes now within their respective cognizance to any other juris- 
 diction, or by altering the number of judges in the said Courts, 
 or any of them, or empowering one or more judges in any of the 
 said Courts to transact any kind of business now transacted by 
 a greater number, or by altering the mode in which the business 
 of the said ( lourts or any of them, or of the Sittings and Assizes, 
 is now distributed or conducted, or otherwise, — may be advant- 
 ageously made so as to provide for the more speedy, economical, 
 and satisfactory despatch of the judicial business now transacted 
 by the same Courts, and at the Sittings and Assizes respectively ; 
 
 B
 
 2 INTRODUCTION. 
 
 and further to make inquiry into the laws relating to juries, 
 especially with reference to the qualification, summoning, nomi- 
 nating, and enforcing the attendance of jurors, with a view 
 to the better, more regular, and more efficient conduct of Trials 
 by Jury and the attendance of jurors at such trials." 
 
 The first report of the Commissioners was issued in March, 
 1869. In 1870 Lord Hatherley introduced in the House of 
 Lords a bill intended to give effect to their recommendations. 
 That bill, however, after much and useful discussion, was with- 
 drawn. In 1873 Lord Selborne, who had succeeded to the 
 Chancellorship, framed and introduced a bill which, with but 
 little alteration, became law, as the Supreme Court of Judicature- 
 Act, 1S73. 
 
 That Act provided for the constitution and jurisdiction of 
 the several branches of the Supreme Court, and the consolida- 
 tion of the law. 
 
 In its schedule it laid down the outlines of a system of pro- 
 cedure, which were to be landing, until altered by the body oi 
 judges after the Act came into operation. And the Act em- 
 powered the Queen in Council, on the advice of the judges, to 
 issue rides to complete the system of procedure, of which the 
 schedule gave the outlines. 
 
 Fades were accordingly framed and approved by the judges, 
 and issued for the information of the public in the summer of 
 1874. But in that year an Act was passed postponing the 
 operation of the Judicature Act to November, 1875, a year later 
 than it was originally intended that it should take effect. 
 
 The Amendment Act of 1 S 7 -~> has altered the effect of the 
 principal Act in some respects, the most important of which is- 
 the constitution of the Court of Appeal. It has supplemented 
 its provisions in many particulars, supplied some omissions, 
 and removed some blots. In its schedule it has inserted in a 
 consolidated form the rules comprised in the original schedule 
 to the principal Act, and those prepared by the judges under 
 the powers given them by that Act, with some modifications. 
 The rules in this schedule so composed are to be of binding 
 force unless altered by the body of judges after the commence- 
 ment of the Act in November, 1875. But power was given to 
 the Queen in Council, with the advice of the judges, to
 
 NECESSITY FOR CONSOLIDATION OF THE COURTS. 6 
 
 further or additional rules. And under this .power some addi- 
 tional rules have been framed and issued, relating chiefly to 
 costs and other matters directly connected therewith. 
 
 Necessity for Consolidation of the Courts. 
 
 The Judicature Commissioners in their report called attention 
 first to the ancient division of the Courts into the Courts of 
 Common Law, and the Court of Chancery, founded on the well 
 known distinction in our law between Common Law and Equity. 
 
 " This distinction led to the establishment of two systems of 
 Judicature, organized in different ways, and administering justice, 
 on different and sometimes opposite principles, using different 
 methods of procedure, and applying different remedies. Large 
 classes of rights, altogether ignored by the Courts of Common 
 Law, were protected and enforced by the Court of Chancery, and 
 recourse was had to the same Court for the purpose of obtaining 
 a more adequate protection against the violation of Common 
 Law rights than the Courts of Common Law were competent to 
 afford. The Common Law Courts were confined by their system 
 of procedure in most actions, — not brought for recovering the 
 possession of land, — to giving judgment for debt or damages, a 
 remedy which has been found to be totally insufficient for the 
 adjustment of the complicated disputes of modern society. The 
 procedure at Common Law was founded on the trial by jury, 
 and was framed on the supposition that every issue of fact was 
 capable of being tried in that way ; but experience has shown 
 that supposition to be erroneous. A large number of important 
 cases frequently occur in the practice of the Common Law Courts 
 which cannot be conveniently adapted to that mode of trial : 
 and ultimately those cases either find their way into the Court 
 of Chancery, or the Suitors in the Courts of Common Law arc 
 obliged to have recourse to private arbit^y^ion in order to supply 
 the defects of their inadequate procedure. 
 
 " The evils of this double system of Judicature, and the con- 
 fusion and conflict of jurisdiction to which it has led, have been 
 long known and acknowledged. 
 
 "The subject engaged the attention of the Commissioners 
 appointed in 1851 to inquire into the constitution of the Court 
 of Chancery. Those learned Commissioners, after pointing out 
 
 a 2
 
 4 INTRODUCTION. 
 
 some of the defects in the administration of justice arising ont 
 of the conflicting systems of procedure and modes of redress 
 adopted by the Courts of Common Law and Equity respectively, 
 state their opinion, that ' a practical and effectual remedy for 
 ' for many of the evils in question may he found in such a 
 transfer or blending of jurisdiction, coupled with such other 
 ' practical amendments, as will render each Court competent to 
 ' administer complete justice in the cases which fall under its 
 ' cognizance.' 
 
 "In like manner the Commissioners appointed in 1850 to 
 impure into the constitution of the Common Law Courts make. 
 in their second report, a very similar recommendation. They 
 report that ' it appeared to them that the Courts of Common 
 ' Law, to be able satisfactorily to administer justice, ought to 
 'possess in all matters within their jurisdiction the power to 
 'give all the redress necessary to protect and vindicate Common 
 ' Law rights, and to prevent wrongs, whether existing or likely 
 ' to happen unless prevented ;' ami further that ' a consolidation 
 ' of all the elements of a complete remedy in the same Court 
 'was obviously desirable, not to say imperatively necessary, to 
 ' the establishment of a consistent and rational system of pro- 
 ' cedure.' 
 
 " In consequence of these reports several Acts of Parliament 
 have been passed for the purpose of carrying out to a limited 
 extent the recommendations of the Commissioners. 
 
 " By virtue of these Acts the Court of Chancery is now, not 
 only empowered, but bound to decide for itself all questions of 
 Common law without having recourse, as formerly, to the aid of 
 a Common Law Court, whether such questions arise incidentally 
 in the course of the suit, or constitute the foundation of a suit, in 
 which a more effectual remedy is sought for the violation of a 
 common law right, or a[ better protection against its violation 
 than can be had at Common Law. The Court is further 
 empowered to take evidence orally in open Court, and in certain 
 cases to award damages for breaches of contract or wrongs as a1 
 Common Law; and trial by jury, — the great distinctive feature 
 of the Common Law, — has recently, for the first time, been 
 intrt iduced into the Court of Chancery. 
 
 f On the other hand, the Courts of Common Law are now
 
 NECESSITY FOR CONSOLIDATION OF THE COURTS. 5 
 
 authorized to compel discovery in all cases, in which a Court of 
 Equity would have enforced it in a suit instituted for the purpose. 
 A limited power has been conferred on Courts of Common Law 
 to grant injunctions, and to allow equitable defences to be 
 pleaded, and in certain cases to grant relief from forfeitures. 
 These changes, however, fall far short of the recommendations of 
 the Common Law Commissioners, who in their Final Report 
 expressed the opinion, that power should be conferred on the 
 Common Law Courts ' to give, in respect of rights there recog- 
 nized, all the protection and redress which at present can be 
 obtained in any jurisdiction.' 
 
 " The alterations, to which we have referred, have no doubt 
 introduced considerable improvements into the procedure both of 
 the Common Law and Equity Courts ; but, after a carefid consi- 
 deration of the subject, and judging now with the advantage of 
 many years experience of the practical working of the systems 
 actually in force, we are of opinion that ' the transfer or blending 
 of jurisdiction ' attempted to be carried out by recent Acts of 
 Parliament, even if it had been adopted to the full extent 
 recommended by the Commissioners, is not a sufficient or ade- 
 quate remedy for the evils complained of, and would at best 
 have mitigated but not removed the most prominent of those 
 evils. 
 
 " The authority noAV possessed by the Court of Chancery to 
 decide for itself all questions of Common Law has no doubt 
 worked beneficially. But the mode of taking evidence orally 
 before an Examiner, instead of before the Judge who has to 
 decide the case, has justly caused much dissatisfaction ; and Trial 
 by Jury, — whether from the reluctance of the Judge or of the 
 Counsel to adopt such an innovation, or from the complexity of 
 tin' issues generally involved in the suit, or because the proceed- 
 ing^ in ( Ihancery do not give rise to so many conflicts of evidence 
 as proceedings in other Courts, — has been attempted in compara- 
 tively few cases. 
 
 " In the Common Law Courts the power to compel discovery 
 has been extensively used, and has proved most salutary; but 
 the jurisdiction conferred on those Courts to grant injunc- 
 tions and to allow equitable defences to be pleaded has been so 
 limited and restricted, — the former extending only to cases
 
 b INTRODUCTION. 
 
 where there has "been an actual violation of the right, and the 
 latter being confined to those equitable defences where the Court 
 of Chancery would have granted a perpetual and unconditional 
 injunction, — that these remedies have not been of much practical 
 use at Common Law; and Suitors have consequently been obliged 
 to resort to the Court of Chancery, as before, for the purpose of 
 obtaining a complete remedy. 
 
 " Much therefore of the old mischief still remains, notwith- 
 standing the changes which have been introduced ; and the 
 Court of Chancery necessarily continues to exercise the jurisdic- 
 tion of restraining actions at law on equitable grounds, and even 
 claims to exercise that jurisdiction in cases where an equitable 
 defence might be properly pleaded at Common Law." 
 
 The report further called attention to the somewhat similar 
 anomalies in the relation of the Common Law Courts to the 
 Court of Admiralty. 
 
 The report proceeded to say : — 
 
 " We are of opinion that the defects above adverted to cannot 
 be completely remedied by any mere transfer or blending of 
 jurisdiction between the Courts as at present constituted ; and 
 that the first step towards meeting and surmounting the evils 
 complained of will be the consolidation of all the Superior 
 Courts of LaAV and Equity, together with the Courts of Probate, 
 Divorce, and Admiralty, into one Court, to be called ' Her Ma- 
 jesty's Supreme Court,' in which Court shall be vested all the 
 jurisdiction which is now exercisable by each and all the Courts 
 so consolidated. 
 
 " This consolidation would at once put an end to all conflicts 
 of jurisdiction. Xo suitor could be defeated because he com- 
 menced his suit in the wrong Court, and sending the suitor 
 from equity to law, or from law to equity, to begin his suit over 
 again in order to obtain redress, will be no longer possible. 
 
 " The Supreme Court thus constituted woidd of course be 
 divided into as many Chambers or Divisions as the nature and 
 extent or the convenient despatch of business might require. 
 
 "All suits, however, should be instituted in the Supreme Court, 
 and not in any particular Chamber or Division of it ; and 
 each Chamber or Division should possess all the jurisdiction of 
 the Supreme Court with respect to the subject-matter of the
 
 THE SUPREME COURT. < 
 
 suit, and with respect to every defence which may be made. 
 thereto, whether on legal or equitable grounds, and should be 
 enabled to grant such relief or to apply such remedy or com- 
 bination of remedies as may be appropriate or necessary in order 
 to do complete justice between the parties in the case before the 
 Court, or in other words, such remedies as all the present Courts 
 combined have now jurisdiction to administer. 
 
 "We consider it expedient, with a view to facilitate the transi- 
 tion from the old to the new system, and to make the proposed 
 change at first as little inconvenient as possible, that the Courts 
 of Chancery, (Queen's Bench, Common Pleas, and Exchequer 
 should for the present retain their distinctive titles, and should 
 constitute so many Chambers or Divisions of the .Supreme Court ; 
 and as regards the Courts of Admiralty, Divorce and Probate, 
 Ave think it would be convenient that those Courts should be 
 consolidated, and form one Chamber or Division of the Supreme 
 Court." 
 
 The Supreme Court. 
 
 The Judicature Act consolidates into one Court, under the 
 name of the Supreme Court, the Court of Chancery, the Superior 
 Courts of Common Law, the Court of Admiralty, and the Courts 
 of Probate and Divorce. The Supreme Court however, as such, 
 will exercise no jurisdiction. It is divided into the High Court 
 of Justice and the Court of Appeal. 
 
 Tin: High Court and its Jurisdiction. 
 
 To the High Court is transferred the whole of the original 
 jurisdiction of the Court of Chancery, the Superior Courts of 
 Common Law, the Court of Admiralty, the Courts of Probate 
 and Divorce, the Courts of Common Pleas of Lancaster and 
 Durham, and the Courts held under Commissions of Assize and 
 like Commissions. To it are also assigned County Court Appeals 
 and others from Inferior Courts. 
 
 It is to be composed in the first instance of the Lord Chancel • 
 lor, the Master of the Bolls and the Vice-Chancellors, and the 
 Judges of the Courts of Common Law, of Admiralty, and 
 Probate and Divorce The permanent number of Judges is 
 '<) be twenty-five.
 
 8 INTRODUCTION. 
 
 The Court is divided into five divisions, corresponding to, and 
 perpetuating, in accordance with the advice of the Commissioners, 
 the names of the Courts of Chancery, Queen's Bench, Common 
 Pleas, Exchequer, and Prohate, Divorce, and Admiralty, the last 
 mentioned Courts forming one division. Put any judge may sit 
 in a Court belonging to any division or for any other judge. 
 
 Distribution of Business. 
 
 Every branch of the Court has power to entertain and give 
 ffect to any claim, to recognize any right, and to apply any 
 remedy which any one of the Courts consolidated by the Acts 
 could heretofore have done. In some cases too, more extensive 
 powers of relief are given than have hitherto been exercised by 
 any Court. 
 
 But as matter of convenience, and subject to any rule 
 which may hereafter be made altering the distribution now 
 laid down, the Act of 1873 assigns some kinds of litigation 
 to particular divisions of the Court ; while in others it leaves 
 it to the unfettered discretion of the suitors to choose their 
 division. 
 
 To the Chancery Division are assigned matters Avithin the 
 special statutary jurisdiction of the Court of Chancery, Admi- 
 nistration of Estates, Partnership, Pedemption and Foreclosure, 
 Raising <>f Portions, Liens and Charges, Execution of Trusts, 
 Rectification of Settlements, Specific Performance, Partition, 
 Wardship of Infants. 
 
 To the other Divisions are assigned all matters hitherto within 
 the exclusive cognisance of the Courts corresponding to those 
 divisions respectively. 
 
 In all cases not falling within any of these categories the 
 plaintiff is left free to choose to which division of the Court he 
 will assign -his action. 
 
 A mistake on the part of the plaintiff in assigning his 
 action to the wrong division will in no case be fatal ; he can 
 never be required to begin over again. It will be at most a 
 reason for transferring the action in the stage at which it is found 
 to the division in which it ought regularly to have been com- 
 menced.
 
 transfer of actions. v 
 
 Transfer of Actions. 
 
 1N"o Court and no branch of the Court will, for the future, 
 hare any power to restrain proceedings in any other. But, in 
 the first place, anything which would hitherto have heen ground 
 for an injunction to restrain proceedings may he relied on by 
 way of defence, or as a reason for staying proceedings. And, 
 in the second place, very large powers of transfer arc given 
 to the Court. 
 
 If an action, which ought by the terms of the Act properly to 
 he assigned to a particular division, is brought in another, 
 it will he in the discretion of the Court or a judge of the 
 division in which the action is pending, either to allow it to 
 proceed where it is, or to transfer it to the division to which it 
 more properly belongs. 
 
 And, further, quite apart from any question of the assignment 
 of the action to its proper division in the first instance, any 
 action may, at any stage, be transferred from one division to 
 another by a judge of the division in which it is pending, with 
 the consent of the President of the division to which it is pro- 
 posed to transfer it, or by the Lord Chancellor with the consent 
 of the Presidents of both the divisions concerned. 
 
 The Court uf Appeal and its Jurisdiction. 
 
 The Court of Appeal is to consist of five ex-officio and three 
 ordinary judges. The ex-officio judges are the Lord Chancellor, 
 the Chief Justice of England, the Master of the Polls, the Chief 
 Justice of the Common Pleas, and the Chief Baron of the 
 Exchequer. The first ordinary judges are to be the present Lords 
 Justices and one other person to be appointed. Power is also 
 jp.i'u to the Lord Chancellor to call for the attendance of One 
 from each of the Queen's Bench, Common Pleas, Ex- 
 chequer, and Probate, Divorce, and Admiralty Divisions as 
 additional judges of the Court of Appeal. 
 
 To this Court is transferred all the jurisdiction of the Court 
 of Appeal in Chancery, including Bankruptcy Appeals ; of the 
 Court of Appeal in Chancery of Lancaster; of the Court of the 
 Lord Warden of the .Stannaries; of the Exchequer Chamber; 
 of the Privy Council in Admiralty Appeals, and Appeals 
 from < Irders in Lunacy. 
 
 b 5
 
 10 INTRODUCTION. 
 
 But, in fact, the jurisdiction of the Court of Appeal is much 
 wider than any mere transfer of existing jurisdiction could make 
 it. In the Common LaAV Courts the cases in which error or an 
 appeal lay to the Exchequer Chamber were very few. A great 
 proportion of decisions of the Court were final. A Bill of Excep- 
 tions lay to the Exchequer Chamber, where a judge's ruling at 
 Xisi prius was wrong. Error lay where a miscarriage appeared 
 upon the face of the record itself, or upon a special case. An 
 appeal lay from a decision refusing, or discharging, or making 
 absolute a rule for a new trial, or to enter a verdict, or nonsuit, 
 if leave was reserved at the trial, or the Court was divided, or 
 leave to appeal Avas given. But in other cases no appeal lay. 
 
 The new Court of Appeal will have jurisdiction to hear an 
 appeal from any judgment or order whether final or interlocutory 
 of the High Court, or any judges or judge of that Court, except 
 where it has been made by consent, or relates to costs only 
 when discretionary, and except judgments in Criminal Appeals, 
 and in Appeals from Inferior Courts, unless, in the last 
 mentioned case, leave to appeal be given. 
 
 By the Judicature Act, 1873, the decisions of the Court of 
 Appeal were to be final, and all recourse to any Higher Court of 
 Appeal was taken away. But the Act of 1875 has suspended 
 for a year the operation of the sections affecting this. And for 
 that time a further appeal to the House of Lords is preserved. 
 
 Sittings of the Courts. 
 
 The old division of the year, into terms and what was not 
 term, has long been a source of inconvenience. The terms have 
 been far too short for the sittings of any Court to be limited in 
 their duration to term time. Yet there have been, in the 
 Common Law Courts especially, many applications which coidd 
 not be made except during term, although the Courts in bane 
 might be sitting. It was a serious evil that the remedial jiower 
 of any Court while actually sitting should be curtailed merely 
 because a certain day of the month was passed. And this evil 
 it was clearly desirable to get rid of. But to have retained the 
 titles of the terms without any real distinction between term and 
 sittings out of term woidd have been to preserve an empty name 
 corresponding to no substantial reality.
 
 SITTINGS OF THE COURTS. 1 1 
 
 Terms are accordingly abolished. There will he four sittings 
 in the year, both for the High Court and the Court of Appeal: — 
 The Michaelmas Sitting, beginning November 2nd and ending 
 December 21st; the Hilary Sitting, beginning January 11th and 
 ending the Wednesday before Easter; the Easter Sitting, 
 1 "'ginning the Tuesday after Easter week and ending the Friday 
 before Whitsunday; and the Trinity Sitting, beginning the 
 Tuesday after Whitsun week and ending August 8th. 
 
 The vacations will be the Long Vacation, beginning August 
 10th and ending October 24th; Christmas Vacation, beginning 
 December 24th and ending January 6th; Easter Vacation, 
 beginning on Good Friday and ending on Easter Tuesday; 
 and Whitsun Vacation, beginning on the Saturday before 
 Whitsunday and ending on the Tuesday after Whitsunday. 
 
 The Judicature Act, 1873, expressly provides that sittings for 
 trial by jury of causes and issues shall, so far as is reasonably 
 practicable, and subject to vacations, be held continuously 
 throughout the year by as many judges as the business to be dis- 
 posed of may render necessary. Single judges as in the Chancery 
 Division, and the Court of Appeal, will, it may be presumed, 
 sit during the whole of the sittings of the Courts. With regard 
 to sittings of Divisional Courts some further arrangement may 
 be found necessary, for during the circuits it might be difficult, 
 and it might not be found requisite, to have Divisional Courts 
 continuously sitting. 
 
 The power given by the Act is very wide: — "Subject to 
 Rules of Court, the High Court of Justice and the Court of 
 Appeal, and the judges thereof respectively, or any such com- 
 missioners as aforesaid (i.e., Commissioners of Assize) shall have 
 power to sit and act, at any time and at any place, for the 
 transaction of any part of the 1 lusiness of such Courts respectively, 
 or of such judges or commissioners, or for the discharge of any 
 ■duty which by any Act of Parliament, or otherwise, is required 
 to be discharged during or after term." 
 
 Provision is made for the appointment each year of two 
 vacation judges of the Iligli Court to hear during vacation all 
 applications requiring immediate attention. The vacation 
 judges may sit either together as a, Divisional Court or 
 separately.
 
 12 introduction. 
 
 Law to be Administered, and Relief Given. 
 
 The contrast and even conflict between the law applied in the 
 several Courts now consolidated, and more especially in the 
 Court of Chancery and the Common Law Courts, is forcibly 
 pointed out in the passage already cited from the report of the 
 Judicature Commission. 
 
 The differences between law and equity are of three kinds. 
 
 In the first place, Equity Courts, even where recognising and 
 enforcing exactly the same primary rights and liabilities as the 
 Common Law Courts, have applied different remedies to protect 
 and enforce them. And much of the value of the chancery system 
 has depended upon the efficiency of these remedies. Where the 
 common law could award damages for a wrong when committed, 
 equity could prevent its commission. Where law could give 
 damages for a breach of contract, equity could enforce its specific 
 performance. Where law could give damages for fraud or breach 
 of faith, equity could declare the property affected by it to be 
 held in trust for, in fact to be property of, the injured party. 
 
 Somewhat similar diversities in respect of the extent of the 
 remedy they could give have existed between the Common Law 
 and Admiralty Courts. 
 
 Under the new system, it will be within the power, and it 
 will be the duty of any branch of the Court before which any 
 case arises to give any appropriate relief or remedy which could 
 heretofore have been given by any Court to all or any of the 
 parties to the action. 
 
 In the second place, Equity recognises and enforces rights and 
 duties of which the ( !ommon Law Courts take no notice. The 
 law recognises only the trustee, or the executor, or other legal 
 owner of property in which many other persons may be bene- 
 ficially interested, or as to which they may have equitable rights. 
 Equity enforces the equitable rights. In such cases law and 
 equity cannot be properly said to conflict. Equity supplements 
 the law. In very many instances the distinction between the 
 two kinds of ownership, the legal ownership of the trustee who 
 represent and acts for the whole group of persons interested, 
 and the beneficial ownership of the individuals so interested, is 
 obviously useful and even necessary. "What has been neither
 
 THE SUBJECT MATTER OF AN ACTION". 13 
 
 necessary nor useful, is that one of the two classes of rights should 
 be ignored by some courts, and enforced only by others. Under 
 the new system, subject to the power of transfer, every equitable 
 ground of claim is to be recognised and enforced in any division 
 of the Court. Every equitable matter of defence or answer is to 
 have full effect given to it in any division. All equitable rights 
 and duties appearing incidentally, are to be taken due account 
 of in any Division. And subject to those provisions, all Divi- 
 sions are to give due effect to all legal rights. 
 
 In the third place, there are some cases in which the rules of 
 law and equity actually conflict ; and to a less extent the same 
 tiling is true as to the Common Law and Admiralty Courts, and as 
 to the Courts of Chancery and Bankruptcy. The Judicature 
 Act goes through, one by one, a number of the points upon which 
 such a conflict of law has existed, and enacts what the law is to 
 be for the future. And it then declares in general terms that in 
 all cases not specifically provided for, in which there is any con- 
 flict or variance between the rules of law and equity, equity is to 
 j) re vail. 
 
 The Subject Matter of an Action. 
 The only question which a Common Law Court has till now 
 been able to entertain, has been : — Was the plaintiff absolutely 
 entitled on a given day to recover money by way of debt or 
 damages, or to recover goods, or land from the defendant. But 
 any number of separate claims of debt or damages, or for the 
 recovery of goods, if by and against exactly the same parties, 
 and in the same right, might be disposed of in one action. A 
 Large majority of cases in which the aid of a Court of Law is 
 needed are of a very simple character, in which, though re- 
 stricted in the manner pointed out, the Common Law Courts 
 have been apt to do full justice between the parties. But the 
 minority lias not been small, in which a decision upon the 
 
 pecific claim of one man against another would be of little. 
 
 er\ ice, in which what was really needed was to treat an entire 
 transaction as a whole, bring all necessary persons before the 
 Court, and adjust and enforce the various rights of all parties. 
 With such cases Common Law Courts have been powerless to 
 deal. The practice has been to refer them to arbitration.
 
 u 
 
 INTRODUCTION. 
 
 The Chancery principle, on the other hand, has been to deal 
 with every controversy as a whole, to insist on all persons con- 
 cerned being brought before it, and to endeavour to do full 
 justice between all parties. There lias been no power simply to 
 settle a specific claim of one person against another, leaving the 
 rights of other parties to the transaction to be settled here- 
 after if any question should happen to arise about them. 
 
 But the suit must have been limited to one subject matter ; 
 otherwise it would be open to objection on the ground of multi- 
 fariousness. 
 
 For the future every branch of the Court will have all the 
 jurisdiction hitherto vested in any of the Courts consolidated. 
 It follows, therefore, that the Court at the instance of a plaintiff 
 (in enforce bis specific claim against a particular person as the 
 Common Law Courts have hitherto done ; or, if asked to do so, 
 can deal with the whole transaction out of which the claim 
 arises, and settle the rights of all parties concerned. And it is 
 further, on the one hand, expressly provided by the Act thai 
 the Court may apply all remedies in respect of any claim, legal 
 or equitable, to which any of the parties may be entitled, so 
 that all matters in controversy may be determined and multi- 
 plicity of actions avoided. It is. on the other hand, provided by 
 the rules that an action is not to he defeated by misjoinder of 
 parties, hut the Court may deal with the matter in controversy 
 so far as regards the rights of the parties actually before it. 
 Further specific provisions are contained in the rides tending to 
 the same latitude of choice as to the subject-matters which a 
 plaintiff may elect to bring before the Court in an action. 
 Claims by plaintiffs jointly may be combined with claims by 
 them or any of them severally against the same defendant. 
 The defendants need not all be interested as to all the relief 
 claimed or as to every cause of action. Claims by and against 
 parties in their individual capacity may, speaking generally, be 
 joined with claims by and against them in a representative 
 capacity. And with few exceptions, any number of causes of 
 action may be combined in one action, subject to the power of a 
 judge to prevent injustice or inconvenience by an incongruous 
 mixture of claims in one trial. 
 
 To the defendant also a wide latitude is given as to the
 
 PARTIES. 1 5 
 
 matters which he may bring before the Court. Not only may 
 he raise any legal or equitable defence, in the strict sense of 
 the term, but his right of set off is largely increased. Hitherto 
 the only set off allowed has been a set off of debt against 
 debt. If either the plaintiff's claim, or the defendant's 
 cross claim was by way of damages, there was no set off, even 
 though the amount of damages might be a mere matter of 
 calculation. For the future the right of set off will exist 
 whether the claims be for debt or for damages. 
 
 But the defendant's right will not be limited to merely setting- 
 off his claim against that of the plaintiff. He may by way of 
 counter-claim set up against the plaintiff any claim, and seek any 
 relief which he could have made the ground of a cross action at 
 law or suit in Equity. And any relief to which he may prove 
 entitled may be awarded to him. And if, in the case of pecuniary 
 claims, it appear that the ultimate balance is in his favour, 
 judgment may be given for him for that balance. 
 
 ]N T or does the defendant's right stop here. He may not only 
 by his counter claim seek relief against the plaintiff, he may 
 •claim like relief, if only it relate to or be connected with the 
 original subject of the action, against any third person whether 
 already a party to the action or not. And provision is made for 
 bringing in the necessary new parties. 
 
 Parties. 
 
 As soon as it is seen that the Court is free to consider in an 
 action all claims of tin' kinds already pointed out, and to give to 
 all or any of the parties such relief as they are entitled to and 
 have properly claimed, it follows by a logical necessity that ;i 
 corresponding freedom must be allowed in the selection of 
 parties to an action. Accordingly the rules provide that all 
 persons may be joined as plaintiffs in whom the right to any 
 relief claimed is alleged to exist, whether jointly, severally, or in 
 tin; alternative. And all persons may be joined as defendants 
 against whom the right to any relief is alleged to exist jointly, 
 severally, or in the alternative. And many other provisions 
 are added, several of which have been already referred to, for 
 carrying out the same liberal doctrine. 
 
 At the same time the practice long in use in the Court of
 
 1 6 IXTRODUCTIOX. 
 
 Chancery of allowing one person to sue or defend on behalf of a 
 class, where there are many persons having the same interest, is 
 extended to all divisions of the Court ; as is also the Chancery 
 practice as to suits by and against married women. 
 
 The provisions of 15 and 16 Vict. c. 8G, s. i2. hitherto in 
 force in the Court of Chancery, for the purpose of avoiding the 
 unnecessary multiplication of parties are also adopted : post, p. 196. 
 
 An entirely new system is introduced in the case of actions 
 by or against partners. They may for the future sue and be 
 sued in the name of their firm ; instead of the partners being 
 necessarily made parties to the action by their individual names. 
 
 Change op Parties. 
 
 It often happens, however, that after an action has been duly 
 instituted between certain parties, it becomes necessary to bring 
 new persons before the Court, or to discharge from the suit 
 some of those who .were originally parties. The necessity for 
 this may arise in several ways : — 
 
 i. — The plaintiff may have made a mistake in the selection of 
 parties when originally instituting his action. He may 
 have omitted some one who ought to have been made a 
 party, or joined some one who ought not to have been 
 joined. It has already been seen that such a mistake will 
 not be fatal, but that the Court may dispose of the matters 
 in controversy, so far as concerns the parties before it. 
 But, full power is also given to amend such a defect, 
 by adding or striking out parties. And this power may 
 be exercised at the trial as well as before. 
 
 ii. — Even where the parties to an action have been rightly 
 chosen in the first instance, it may well happen that 
 from the death, marriage, or bankruptcy of a party, the 
 birth of some one becoming interested, or the transmis- 
 sion of interest from one person to another, during the 
 progress of the suit the proper parties are no longer all 
 of them before the Court. Both in the Common Law 
 Courts and in the Court of Chancery, simple and 
 inexpensive methods have long been in use for curing 
 supervening defects of this nature. The Chancery
 
 CHANGE OP PARTIES. 1 7 
 
 practice has in the new rides been adopted. Under it, 
 an order may be obtained ex parte to proceed with the 
 action between the continuing parties and the parties 
 whom it has become necessary to introduce. Tin 
 order so obtained, will be served upon the proper par- 
 ties. And unless application be made within twelve 
 days to discharge the order, it will bind those served 
 with it. 
 
 iii. — A person originally no party to the action is sometiini-s 
 allowed to intervene and of his own accord make himself 
 a party to it, on the ground that he is interested in the 
 subject matter of the action. The right of intervention, 
 which fills so large a space in some foreign systems of 
 procedure, is admitted in our system oidy in a very few 
 cases. The Judicature Acts and rules have made no 
 change in the law in this respect. 
 
 In a Probate action any person interested in the estate of 
 the deceased may intervene. 
 
 In an Admiralty action in rem, any person interested in 
 the res may intervene. 
 
 In an action for the recovery of land, as hitherto in an 
 action of Ejectment, any person who claims to be in 
 possession by himself or Ins tenant may intervene. 
 
 The power of intervention in a suit for divorce is in no 
 way affected by the acts or rules. 
 
 iv. — It has already been shown that a defendant in any action 
 may not only seek by Avay of counterclaim, against the 
 plaintiff who is suing him, any relief winch he might 
 obtain in a cross action, but may also seek like relief 
 relating to or connected with the subject matter of the 
 action, against any other person, whether already a 
 party to the action or not. On this ground it may 
 become necessary, on behalf of the defendant, to bring 
 before the Court persons not previously parties. This is 
 provided for by the Act of 1873 and the rules. 
 
 v. — Then; is yet another ground upon which it may be 
 desirable for a defendant to bring in third persons and 
 make them parties to the action. It may well be that
 
 18 INTRODUCTION. 
 
 the defendant does not seek and is not entitled to claim 
 any actual relief in the pending action as against any 
 person not already a party to it. But there may yet be 
 some one against whom, if himself found liable in the 
 action, he may have a right to demand a contribution 
 < >r indemnity or other remedy over. He may be sued as 
 a surety and if found liable, may be entitled to contri- 
 bution from ;i co-surety. He may lie sued upon a 
 contract which he made as agent for another person, and 
 may be entitled to be indemnified by his principal. In 
 such cases it is obviously desirable to bring in the 
 person against whom the defendant will ultimately have 
 to seek his remedy, so as t<> secure a decision as to the 
 defendant's liability in the present action, which shall 
 be binding and conclusive upon such person when in 
 a subsequent proceeding the now defendant seeks his 
 remedy against him. This case is also provided for. 
 
 Commencement of Actions — Writ. 
 
 Actions at law have been commenced by a writ of summons, 
 a simple document calling upon the defendant to appear, and not 
 necessarily doing anything more. And experience has abund- 
 antly shown the advantage of this method of procedure. For 
 in a very large proportion of cases the mere service of a writ is 
 found to be sufficient either to bring the defendant to submission, 
 or to lead to a settlement of the claim. 
 
 Admiralty suits and generally those in the Probate Court 
 have been commenced by methods very much analogous to 
 the proceeding by writ. But in the Court of Chancery the 
 suit has been instituted by the expensive process of filing a 
 Bill ; so that it has been necessary thoroughly to investigate 
 the plaintiff's case in detail, and set it out in the form of a 
 printed pleading, as the very first step in the cause ; expenses 
 which under the simpler mode of proceeding might often be 
 avoided altogether. 
 
 The procedure by writ now universally adopted has nothing in 
 common with the former writ of subpouia in ( Jhancery, issued 
 after the bill was filed ; that is to say after it was too late to 
 be of any service, and when it became merely a useless expense.
 
 INDORSEMENT OF CLAIM. 19 
 
 Hitlierto when an action was brought to recover possession of 
 land, a special form of writ of ejectment has been used ; 
 and the proceedings in such an action have been materially dif- 
 ferent from those in other actions. For the future there will be 
 no special form of writ for such cases ; and with few exceptions 
 the proceedings are assimilated to those in other actions. 
 
 Indorsement op Claim. 
 
 For the future the writ of summons is not to be a mere 
 summons to appear; it is to be " indorsed with a statement of 
 the nature of the claim made, or of the relief or remedy required 
 in the action." 
 
 There will no doubt be many advantages in having the con- 
 troversy to be raised in the action thus formally identified on 
 the back of the writ. And some specific economies are effected 
 by means of it. For example, damages may be assessed in case 
 of default of appearance, upon the basis of the indorsement, 
 without any pleading. 
 
 It seems, however, of great importance that the utmost 
 generality of statement should be permitted and practised in such 
 indorsements. If anything like a precise statement of facts were 
 required, it would be necessary to investigate the case in detail, 
 and if a correct statement of the legal grounds of claim were 
 required, it would often be further necessary to take counsel's 
 opinion, before issuing a writ. And so the object of the pro- 
 cedure by writ would be to a great extent defeated. Accordingly 
 the rules provide that "it shall not be necessary to set forth the 
 precise ground of complaint, or the precise remedy or relief" 
 sought. And the forms of indorsement are very general in 
 their terms, as for instance : — 
 
 The plaintiff's claim is as a creditor of X.Y., of deceased 
 
 to have the [real and] personal estate of the said X. Y. administered. The 
 defendant CD. is sued as the administrator of the said X. Y. [and the 
 defendants E.F. and G.H. as his co-heirs-atdaw]. 
 The plaintiff's claim is /. for the price of goods sold. 
 
 [This Form shall suffice whether the claim he in. respect of ijoods sold and 
 
 delivered, or of yoods bargained and sold,]. 
 The plaintiff's claim is I. for money lent [and interest]. 
 
 The plaintiff's claim is for damages for libel.
 
 20 INTRODUCTION. 
 
 The plaintiffs claim is for damages for slander. 
 
 The plaintiff's claim is in replevin for goods wrongfully distrained. 
 
 The plaintiff's claim is for damages for improperly distraining. 
 
 [This Form shall be sufficient whether the distress complained of be icrong- 
 jnl ,,,■ t.crissirt, or irre<j(dar,aud whether the claim be for damages only, or for 
 double value.] 
 
 Special Indorsements and their Consequences. 
 
 In addition to the indorsement of claim winch is required to 
 he upon every writ, the plaintiff may in certain cases indorse 
 his writ specially. Such special indorsements are of two kinds. 
 
 First, where the claim is merely for a debt or liquidated money 
 claim, the plaintiff may state on his writ the particulars of his 
 claim. This is in accordance with the practice under the 
 C. L. P. Act 1852, except that the use of such an indorsement 
 is extended to the case of a sum of money claimed by reason 
 of a trust. 
 
 Where the writ is so indorsed, the plaintiff may in case of 
 default sign final judgment, as hitherto, for the amount indorsed. 
 But, further, (and this right is new) if the defendant appears, 
 the plaintiff may nevertheless, upon a summons taken out for the 
 purpose, obtain an order for final judgment, unless the defendant 
 can show that he has a defence to the action, or sufficient reason 
 why lie should be allowed to defend. This is an extension of 
 the principle of the Bills of Exchange Act, though the machinery 
 adopted is different. It must he observed that the right to pro- 
 ceed under the Bills of Exchange Act is preserved. 
 
 Secondly, in all cases of ordinary account, as a partnership, 
 executorship, or ordinary trust account, the plaintiff may indorse 
 a claim for such account on his writ. In such a case, if the 
 defendant does not appear an order for the account claimed will 
 he made as of course ; if he does appear, the order will never- 
 theless be made, unless the defendant shows that there is some 
 preliminary question to be tried. 
 
 Place of Proceeding — District Begistries. 
 Hitherto, except in the case of Common Law Actions com- 
 menced in the Court of Common Pleas of Lancaster, all proceed- 
 ings in any of the Courts consolidated by the Judicature Act, 
 other than the trial of actions at the assizes, have necessarily
 
 PLACE OF PROCEEDING DISTRICT REGISTRIES. 21 
 
 taken place in London. The issue of the writ or filing of the bill, 
 the tiling or delivery of pleadings and affidavits, interlocutory 
 applications, entries of judgments, taxation of costs ; all could 
 take place only in London. Yet in many cases, especially where 
 all parties to an action and their respective solicitors reside in or 
 near a provincial town, it might he of advantage to them and 
 promote economy that all steps in the cause which are either 
 purely the act of one party- — such as the delivery of pleadings — or 
 though requiring judicial intervention are yet of such a nature 
 that they may properly be dealt with by a local officer, should 
 take place elsewhere than in London. This system has for some 
 years been inforce in Lancashire; and the Judicature Act autho- 
 rises its application throughout the country generally. 
 
 Power is given by the Act of 1873 to the Queen in Council to 
 establish district registries in such places as may be thought 
 expedient, and to appoint district registrars. The districts are 
 to be defined by Order in Council. Any plaintiff may, 
 except in a Probate suit, issue his writ, and so commence his 
 action, wherever he pleases, in London or in any registry. Any 
 defendant served with a writ issued in a district registry must 
 appear in the registry, if he resides or carries on business within 
 the district. If he resides out of the district he may appear 
 either there or in London as he pleases. If all parties appear in 
 the district the action will in ordinary course proceed there. If 
 any party appears in London it will proceed in London. 
 
 As long as the case is in the registry the registrar is to have 
 the same jurisdiction as a Master of the Queen's Bench, Common 
 Pleas, or Exchequer. Judgment by default whether final or 
 interlocutory may be entered in the registry. Where no default 
 is made proceedings will go on in the registry at any rate down 
 to notice of trial. Judgment may be entered in the registry, 
 and whenever judgment is entered there, costs may be taxed 
 there also. It will be in the option however of any defendant 
 within certain denned periods, regulated according to the nature 
 of the action, 1" remove any action from a district registry to 
 London. And a judge or the registrar may remove the proceed- 
 ings to London at anytime and at the instance of any part v. 
 And similarly a judge may remove an action from London to a 
 district registry.
 
 22 INTRODUCTION'. 
 
 Only experience can determine what the effect of these provi- 
 sions will be. But it seems likely that, except when the nature 
 of the case renders it in the judgment of the parties undesirable, 
 an action will proceed in a district registry, whenever all parties 
 and their solicitors reside within a convenient distance of the 
 registry ; but that when that is not the case, so that agents 
 would have to be employed, the action will he removed to 
 London. Even, however, when the action is proceeding in 
 London, accounts and inquiries may he ordered to be made or 
 taken in a district registry. 
 
 Pleading. 
 
 A uniform system of pleading will, for the future, take the 
 place of the very various methods hitherto in use in the several 
 Courts. 
 
 The history of Common Law pleading is a subject which need 
 not be inquired into here. But a brief consideration of Common 
 Law pleading' as it exists in practice in the present day, may 
 make the extent of the change, now effected, the clearer. The 
 fact is, though Common Law pleading is often spoken of as if it 
 were one homogeneous system, there are really several quite 
 dissimilar methods of pleading in use side by side hi the Com- 
 mon Law Courts. 
 
 One kind of pleading consists in the use of common counts on 
 the one side, and general issues on the other. In a celebrated 
 case tried in Ireland some years ago, the only question for the 
 jury was whether a gentleman and lady were man and wife. If 
 the same case had arisen in England a year ago, the declaration 
 would have stated simply that the plaintiff claimed the price of 
 gond- sold and delivered; and the plaintiff would have further 
 delivered particulars of the goods for which he claimed to be 
 paid. The plea would have stated simply that the defen- 
 dant was never indebted. Xo information, whatever, would 
 have been given by the pleadings as to what the real controversy 
 was. Again, the plaintiff sues the defendant for "money received 
 by the defendant to the use of the plaintiff." That may cover 
 any of the following cases : The defendant is the plaintiff's 
 collector, and has received money for him as such : The plaintiff 
 claims to be entitled to an office which the defendant also
 
 PLEADINGS. 23 
 
 claims, and under colour of wliicli the defendant lias received 
 fees : The plaintiff, a customer, has paid the defendant, a trades- 
 man, the price of goods to be furnished, and the defendant has 
 neglected to furnish them : The plaintiff has paid a sum of money 
 to the. defendant by mistake, having taken him for another per- 
 son of the same name. To take one more example, an action is 
 brought against a railway company for injuries sustained in an 
 accident said to have been caused by negligence. The company 
 pleads not guilty. That may mean any of the following 
 defences : — The plaintiff is a mere impostor trying to extort 
 money by feigning injuries which he has not really sustained : 
 The accident was an inevitable accident and happened without 
 negligence : The negligence which caused the accident was on 
 the part of the servants of another company, and the defen- 
 dants are not answerable for it : The plaintiff would not have 
 been hurt if he had not, himself, been guilty of negligence. 
 Such pleading as this, made up of common counts or general, 
 issues, is obviously equivalent to no pleading at all. Under the 
 new system the parties may, if they like, dispense with pleadings 
 altogether. But there will be no room for pleading of this kind. 
 A second method is that in which the pleading does show 
 with reasonable precision the point which the party pleading 
 intends to raise ; but states not the facts which he means to prove, 
 Init the conclusion of law he seeks to draw from them. A plead- 
 ing framed on this principle informs the other side that the party 
 pleading means to prove some set of facts which will sustain a 
 given legal conclusion, the legal conclusion itself being accurately 
 stated. A single example will suffice. In an action upon a contract, 
 the defendant pleads that the contract was rescinded. This may 
 mean that the parties met, and in express terms agreed to put an 
 end to the contract : It may mean that such an intention is to 
 be collected from a long correspondence, and a whole series of 
 transactions : It may mean that the plaintiff himself has broken 
 the contract in such a way as to amount to actual repudiation. 
 Moreover, there are generally in such cases several alternative 
 legal conclusions possibly to be drawn from the facts, any one of 
 which would serve the defendant's turn ; and therefore several 
 pleas are pleaded, the. evidence in support of which will lie 
 identical. fortius kind of pleading, too, there will be no room
 
 24 INTRODUCTION. 
 
 in future. Pleadings must be statements of facts, not of legal 
 conclusions. 
 
 But a third method of pleading has been largely and in- 
 creasingly in use among common lawyers, pleading specially, as 
 it is sometimes called — that is to say, pleading the facts, leaving 
 the Court to draw the proper legal conclusions from them. If 
 the action is founded upon the provisions of a deed, it has been 
 common to set out in the declaration the material parts of the 
 deed, and then to state the facts relied upon as constituting a 
 breach of its terms. If the action be upon a policy of insurance, 
 it lias been usual to set out the terms of the policy, and then 
 state the loss which has occurred under it. If the defence has 
 been unseaworthiness the fact of unseaworthiness, has been stated 
 as a fact, though it is true the details of the unseaworthiness 
 have been left to be supplied by particulars supplementary to the 
 plea. There seems to be no reason why pleading in f uture should 
 differ very materially from such pleading as this, except in a few 
 particulars, that is to say : — As claims and defences will not be 
 divided into counts and pleas there will be no danger of having 
 to tell the same story twice : Pleadings will be in the convenient 
 form of numbered paragraphs : What has hitherto been sup- 
 plied in the form of particulars will, it would seem, commonly 
 be properly embodied in the pleadings : And facts will pro- 
 bably be generally given rather more in detail than hitherto. 
 
 Pleadings in Chancery have been narratives of fact, as distin- 
 guished from statements of legal conclusions. But Chancery 
 pleadings have been intolerably prolix. In the case of answers 
 there has been one almost sufficient reason for this. The answer 
 has ordinarily been hot merely a pleading, but also the reply to 
 interrogatories put for the purpose of discovery. But prolixity 
 has been scarcely less the vice of bills than of answers. This 
 has probably partly arisen from the real or supposed convenience 
 to a judge of having documentary evidence set out on the face of 
 the pleadings. But probably it has arisen at least as much from 
 the simple fact that it is much easier to set out everything, every 
 document and every fact that may possibly have to be referred 
 to, than to devote the necessary time and thought to the consi- 
 deration of what ought to be set out and what ought not. What- 
 ever the reason be, while many bills in Chancery have been
 
 DISCOVERY. 25 
 
 admirable examples of good pleading, a very large proportion 
 have been as execrable specimens of slovenly pleading as it is 
 possible to conceive. 
 
 It has often been sought to express the true rule of sound plead- 
 ing by saying that you should plead facts and not evidence ; and 
 the new rules of pleading adopt the expression. But it is evi- 
 dent that any such rule is, and must be, vague and indefinite. 
 The matter must be one of degree. It is clear however that 
 Common Law pleading has hitherto erred grossly in one direc- 
 tion, and Chancery pleading equally grossly in the other. In the 
 Admiralty, and Probate and Divorce Courts the happy medium 
 seems to have been on the whole very fairly observed. 
 
 The new body of rules, in addition to the general prohi- 
 bition against pleading evidence, contain many rules directed to 
 check prolixity and bring the parties to a point. Probably the 
 most important of these are those which establish that each 
 party shall be taken to admit what he does not deny, and which 
 prohibit mere general denials in the first instance, until each 
 party has first dealt with the subject matter in detail. 
 
 Discovery. 
 
 There have been grave defects in the practice both of the 
 Common Law Courts and of the Court of Chancery with reference 
 to discovery. 
 
 Discovery in an action may be wanted for a variety of pur- 
 poses. A claimant may, on many grounds, be entitled to disco- 
 very, and he may want it for the very purpose of ascertaining 
 what his real cause of action, if any, is. Or he may want it to 
 elicit such detailed information as may enable him to set out his 
 case with proper accuracy. Or he may want it in order to ascer- 
 tain facts which will support his case as stated, or to put him on 
 the proper track for ascertaining them. Or he may want it merely 
 to obtain admissions of facts with a view to saving the trouble 
 and expense of formal proof. 
 
 These, and probably many others, are proper objects of disco- 
 very. But to ascertain where the parties are at issue, in what 
 points the case relied upon on the one side is inconsistent with 
 that of the other, is not the proper function of discovery. That is 
 the function of pleadings. JSbw it is very obvious that the step at
 
 2G INTRODUCTION-. 
 
 which it is desirable to seek discovery, and the extent of ground 
 which it ought to cover, must in each case depend upon the 
 purpose for which the discovery is wanted. In many cases it is 
 properly sought at the earliest possible stage ; in others it is not 
 f( mnd necessary till the evidence is actually preparing for the 
 trial. In some cases discovery may properly take the widest 
 possible range ; in others, it may with ecpial propriety, be limited 
 to a single point. But in Chancery the plaintiff's interrogatories, 
 if lie put interrogatories, have been an echo of the bill. He has 
 questioned the defendant upon oath as to every detail of the 
 case stated from first to last ; whereas, when the defendant eomes 
 to plead, to state his version of the story, it may probably be 
 found that the matters about which there is any dispute, are 
 contained in two or three paragraphs. The residt therefore often 
 is that a great deal of expense has been incurred to procure a 
 ntrmber of answers, which are of no use to the one side, and have 
 given a great deal of trouble to the other. 
 
 In the Common Law Courts the right to discovery has been 
 fettered by the most inconvenient restrictions. It has been 
 necessary for the applicant to come furnished with affidavits. 
 which in the most honest cases it is often the most difficult to 
 procure. And, in the case of interrogatories, judges have been 
 called upon to determine at chambers, with but a scanty 
 knowledge of the case, what particular questions shall be put, and 
 what shall not. 
 
 For the future, pleading and discovery will, as has been pointed 
 out, be separate things, each applied to its proper purpose. 
 Each party may administer interrogatories, within certain periods 
 as of right, and at any time by leave of a judge. A question 
 may be struck out if improperly put ; or objection may be taken 
 to it by the affidavit in answer. And any question as to the 
 answer will be dealt with summarily. But it will be in the 
 I k >wer of the judge, and in the absence of an order of the judge 
 it will be the duty of the taxing officer, to inquire whether inter- 
 rogatories were properly put or not, and deal with the costs 
 accordingly. 
 
 Discovery of documents may likewise lie obtained as of 
 course, without any affidavit. And production may be ordered 
 by a judge.
 
 injunctions and other protective order*. 2 i 
 
 Injunctions and other Protective Orders. 
 
 The valuable power long exercised by the Court of Chancery 
 of granting an interlocutory injunction, to restrain an aliened 
 wrong pending the decision of the Court as to the rights of the 
 parties, is conferred upon every branch of the Court. And the 
 power will be wider than that ©f the Court of Chancery. For 
 the restrictions which that Court placed upon its own power 
 with respect to restraining mere trespasses, and the distinctions 
 it drew between cases, according as the one party or the other 
 was in possession, are expressely done away with by the 
 Judicature Act. 
 
 When by any contract a prima facie case of liability is made 
 out, an order may be made for the custody or preservation of the 
 subject matter, or the payment of the amount in dispute into 
 Court. And in any action an order may be made for the protec- 
 tion of the subject matter, or its inspection, or the taking of 
 samples, or making experiments. 
 
 Perishable goods may be ordered to be sold. 
 
 When goods are claimed and the defence is a lien, the goods 
 may be ordered to be given up on payment into Court, to abide the 
 event, of the amount of the alleged lien with interest and costs. 
 
 Trial. 
 
 The existing state of things with regard to the modes of try- 
 ing actions in various Courts is described by the Commissioners 
 as follows : — 
 
 "With regard to the trial and determination of disputed ques- 
 tions of fact, the mode of trial varies according to the Court in 
 which the. litigation happens to be pending, without any suffi- 
 cient power of adaptation to the requirements of particular 
 cases. 
 
 "In the Court of Chancery, until recently, the Judge had uo 
 power to summon a jury, whatever might be the conflict of evi- 
 dence or dispute as to the facts; all questions of fact as well as 
 of law were generally decided by the Judge. In some case-, 
 it was the practice to send issues to be tried by a 
 jury at common law. This course, however, was taken,
 
 28 INTRODUCTION. 
 
 not as a mode of trial, but merely for the assistance 
 or information of the Court, which still reserved to itself 
 the ultimate decision of the facts, and if dissatisfied with the 
 first verdict might send the case before a second jury, or decide 
 the facts according to its own view, and without regard to the 
 verdict. Substantially the practice of the Court of Chancery 
 remains unaltered ; but there is now a power, which is rarely 
 exercised, of summoning a jury, and the practice of sending 
 issues to be tried at Common Law has become less frequent. 
 
 " The Court of Admiralty, which decides for itself all questions 
 of law and fact, may in special cases call in the assistance of 
 nautical or mercantde assessors, but it has no power to summon 
 a jury. The Court, however, by a recent statute has power to 
 direct any question of fact arising in a suit to be tried in a Court 
 of Common Law, and, if it thinks fit, to order a new trial ; but 
 the verdict of the jury, when final, is conclusive upon the Court. 
 This power, we understand, has been exercised in only one 
 instance. 
 
 " In the Courts of Probate and Divorce application is made to 
 the Judge in each case to fix the mode of trial, either before 
 himself or by a jury. In the Probate Court, if the parties agree 
 in asking for a jury, the application is usually granted ; if they 
 do not agree, the Judge fixes the mode of trial which he con- 
 siders best adapted to the case ; but in the case of an heir-at-law 
 cited, or otherwise made party to the suit, a jury may be de- 
 manded as of right. A similar rule of practice exists in the 
 Court of Divorce. In that court also, in cases of dissolution of 
 marriage, either party may demand a jury as of right. 
 
 " In the Courts of Common Law a jury has always been re- 
 garded as the constitutional tribunal for trying issues of fact ; 
 and the theory is, that all such questions are fit to be tried in 
 that way. It has, however, long been apparent, in the practice 
 of the Courts of Common Law, that there are several classes of 
 cases litigated in those courts to Avhich trial by jury is not 
 adapted, and in which the parties are compelled — in many cases 
 after they have incurred all the expense of a trial — to resort to 
 private arbitration. Until the Common Law Procedure Act of 
 1854, the parties could not be compelled to go to arbitration, 
 and the power given by that Act is limited to cases where the
 
 TRIAL. 29 
 
 dispute relates wholly or in part to matters of mere account, or 
 where the parties have themselves before action agreed in writing 
 to refer the matter in difference to arbitration. 
 
 "The system of arbitration which has thus been introduced, is 
 attended with much inconvenience. The practice is to refer cases 
 which cannot be conveniently tried in court either to a barrister 
 or to an expert. A barrister can seldom give that continuous 
 attention to the case which is essential to its being speedily and 
 satisfactorily disposed of ; and an expert, being unacquainted 
 with the law of evidence, and with the rides which govern legal 
 proceedings, allows questions to be introduced which have 
 nothing to do with the matters at issue. In neither case has 
 the referee that authority over the practitioners and the 
 witnesses which is essential to the proper conduct of the pro- 
 ceedings. If the barrister or solicitor who is engaged in the 
 suit, or even a witness, has some other engagement, an adjourn- 
 ment is almost of course. The arbitrator makes his own charges, 
 generally depending on the number and length of the meetings, 
 and the professional fees are regulated accordingly. The result 
 is great and unnecessary delay, and a A r ast increase of expense to 
 the suitors. The arbitrator thus appointed is the sole judge of 
 law and fact, and there is no appeal from his judgment, hoAvever 
 erroneous his view of the law may be, unless perhaps when the 
 error appears on the face of his award. Nor is there any 
 remedy, whatever may be the miscarriage of the arbitrator, unless 
 he fails to decide on all the matters referred to him, or exceeds 
 his jurisdiction, or is guilty of some misconduct in the course of 
 the case. 
 
 " In the Court of Chancery questions involving complicated 
 inquiries, particularly in matters of account, are always made the 
 subject of reference to a Judge at Chambers. These references 
 are practically conducted before the chief clerk, but any party is 
 entitled, if he think fit, to require that any question arising in 
 the course of the proceedings shall be submitted to the judge 
 himself for decision. In such a case the decision of the judge is 
 given after he has been sitting in Court all day hearing causes. 
 It has been represented to us that this system does not give satis- 
 faction, and that there, is not sufficient judicial power to dispose 
 of the business in Court, and at the same time to give that per-
 
 30 INTRODUCTION. 
 
 •sonal attention to the business in Chambers -which was con- 
 templated when references to the Judge in Chambers were 
 substituted for the old references to the Masters in Chancery. 
 
 " In theCourt of Admiralty references are always to the Registrar, 
 assisted if necessary by one or two merchants or other skilled 
 persons as assessors or advisers; the Registrar, from his know- 
 ledge of law, is enabled to regulate the conduct of the case; the 
 merchants — assuming them to be properly chosen — have that 
 practical knowledge which enables them to advise Mm on 
 questions of a commercial nature that may arise in the course of 
 the proceedings. The reference proceeds like a trial at law until 
 it is concluded, without adjournment, except for special cause, 
 and there is an appeal at once to the judge in case the Registrar 
 mi scarries." 
 
 Ami the report adds: — 
 
 " It seems to us that it is the duty of the country to provide 
 tribunals adapted to tin' trial of all classes of cases, and capable 
 of adjusting the rights of litigant parties in the manner most 
 suitable to the nature of the questions to be tried." 
 
 The Judicature Act and the rules of procedure accordingly 
 provide several modes of trial, any of which may hereafter be 
 used hi any division of the Court. 
 
 . Vet ions may be tried by a judge or judges, by a judge with 
 assessors, by a judge and jury, or by an official or special referee 
 with or without assessors. 
 
 The plaintiff may give notice of trial and choose the mode of 
 trial. If he fails to do so within a limited time, the defendant 
 has the same right. But in either case tin' opposite party may 
 in general require the issues of fact to be submitted to a jury. 
 
 A judge may order different questions in an action to be tried 
 in different ways, and in whatever order maybe most advantageous. 
 And unless a jury-trial has been required by either party, a judge 
 may direct a trial by a different mode from that of which notice 
 has been given. Issues may be sent for trial to the assizes or the 
 London or Middlesex sittings. Inquiries and accounts may he 
 ordered to be made and taken at any stage. A judge may obtain 
 a report upon a question from an official or special referee. And, 
 by consent, or where a prolonged examination of documents or 
 accounts, or scientific or local investigation is required, he may 
 without consent, refer any question to a referee, official or special.
 
 REFERENCES. 31 
 
 The plaintiff has the right to choose the place of trial by notice 
 in his statement of claim ; but the place of trial may be changed 
 by order of a judge. Local venues are abolished. 
 
 Eeferences. 
 The Judicature Act, 1873, provides for the appointment of a 
 new class of officers in connection with the Court : — Official 
 Referees. And, as has been already pointed out under the 
 head of trial, the power of compulsory reference has been carried 
 ronsiderably further than it has ever been before. But at the 
 same time a very important change is made in the position of an 
 arbitrator, to whom an action or any question in an action is 
 referred. Hitherto he has been sole and final judge both of 
 law and fact, and no appeal has lain from his decision. 
 Under the new system his finding upon matters of fact will lie 
 equivalent to the verdict of a jury, and open to review upon the 
 same grounds. His decision upon matters of law will be subjeel 
 to appeal like that of a judge. 
 
 Evidence. 
 
 In the Court of Chancery the evidence upon winch the Judge 
 has decided the cause has ordinarily been the affidavits of wit- 
 nesses. If they have been cross-examined it has sometimes been 
 before the judge at the hearing, but more commonly before an 
 examiner. 
 
 In the Common Law Courts evidence has been given orally 
 and in open Court at the trial. 
 
 The latter practice will for the future universally prevail, 
 subject to certain qualifications. 
 
 A judge may order the deposition of a witness to be taken 
 before an officer or other person, and used at the trial. The 
 Common Law Courts have long possessed this power. 
 
 A judge may order that particidar facts be proved by affidavits 
 <»■ that the affidavit of a particular witness be used; unless the 
 opposite party bona fide desires to cross-examine the witness. 
 
 The parties may in any action agree to. take the evidence by 
 affidavit. But if this be done the cross-examination of the Avit- 
 nesses, if any, will be in open Court at the trial. 
 
 Upon motions, petitions, and summonses, affidavits may !>;•
 
 32 INTRODUCTION. 
 
 used. But any person making an affidavit may be ordered to 
 attend and be cross-examined. 
 
 Judgment. 
 
 Nothing lias given rise to greater difficulties in the way of the 
 efficient administration of justice by the Courts of Common Law, 
 than their want of power freely to mould the judgment of the 
 Court to fit the circumstances of each case. A Common Law 
 Court coidd give but one judgment, for or against the plaintiff" 
 or several plaintiffs, against or for the defendant or several 
 defendants. If in favour of several, it must establish a joint 
 right to everything awarded. If against several, it could only be 
 upon the ground of a joint liability in respect of every claim 
 enforced. Subject to a few recent exceptions, the whole relief 
 awarded to or against any person must be so awarded to or 
 against him in the same right and capacity. The only form of 
 judgment that could be given was for a sum of money, or the 
 recovery of land, or goods. And no judgment could award 
 relief subject to any condition or qualification whatever, how- 
 ever clearly the justice of the case might recpiire it. 
 
 The Judicature Act removes the obstacles with which the 
 Common Law Courts have hitherto had to contend. By its 
 express provisions "the High Court of Justice and the Court of 
 Appeal respectively, in the exercise of the jurisdiction vested in 
 them by this Act, in every cause or matter pending before them 
 respectively, shall have power to grant, and shall grant, either 
 absolutely or on such reasonable terms and conditions as to 
 them shall seem just, all such remedies whatsoever as any of the 
 parties thereto may appear to be entitled to, in respect of any 
 and every legal or equitable claim properly brought forward by 
 them respectively in such cause or matter ; so that, as far as 
 possible, all matters so in controversy between the said parties 
 respectively may be completely and finally determined, and all 
 multiplicity of legal proceedings concerning any of such matters 
 avoided." And the rules as to the joinder of parties, and the 
 joinder of claims are adapted to give effect to this liberal pro- 
 vision. 
 
 But on the other hand the new procedure by no means-
 
 JUDGMENT AT THE TRIAL. 33 
 
 compels people to enlarge the bounds of their controversies or 
 introduce a multiplicity of parties. It is open to any plaintiff 
 still, as heretofore in a Common Law Court, to claim whatever 
 he is entitled to from the particular person lie makes defendant, 
 without the delay involved in a wider inquiry. And the rules 
 in terms provide that : — " No action shall be defeated by 
 reason of the misjoinder of parties, and the Court may in every 
 action deal with the matter in controversy so far as regards the 
 rights and interests of the parties actually before it." 
 
 Judgment at the Trial. 
 
 In Chancery and in the Admiralty and Probate Courts the judge 
 after the facts have been ascertained, whether by the judge 
 himself or by a jury, has applied the law to the facts found, and 
 given whatever judgment the parties were entitled to. 
 
 In the Common Law Courts the judge at the sittings in 
 London or Middlesex, or the judge or a commissioner at the 
 assizes has been in an entirely different position. He was a 
 mere commissioner to try the issues of fact joined between the 
 parties, and to direct a verdict for the one party or the other 
 accordingly. Upon that verdict judgment ordinarily followed 
 as a matter of course ; and in the great majority of cases rightly 
 followed. But it might well happen that though on the facts 
 pleaded and proved the plaintiff was entitled to the verdict, yet 
 he had in point of law no claim against the defendant ; or on the- 
 other hand the defendant might on the pleadings and evidence- 
 be entitled to the verdict, yet his defence might be invalid in 
 law. The judge at the trial had no power to deal with such 
 questions. They might be raised by demurrer, or by motion for 
 judgment non obstante veredicto, or brought before the Court, 
 in banc in indirect ways ; but not before the judge at the trial. 
 
 The Judicature Act expressly provides that the judge or 
 commissioner on circuit, and the judge at the London and 
 Middlesex sittings shall constitute a court. He has therefore all 
 the powers of a court to deal with the case before him. And 
 he will have power, where the facts are found, to apply the law 
 to them and direct the proper judgment. The importance, too, 
 of this change is much enhanced by the large power which, as 
 
 o R
 
 54 INTRODUCTION. 
 
 already pointed out, every branch of the Court will have to 
 mould its judgment so as to do complete justice between all 
 I Kilties. 
 
 Three courses are left open to the judge at the trial : — 
 
 First, after the facts are found, he may simply direct the 
 
 proper judgment to be entered ; 
 Secondly, he may direct judgment to be entered, with leave 
 
 to any party to move to set it aside ; 
 Thirdly, he may abstain from directing any judgment to be 
 entered, and leave any party, who thinks himself entitled 
 to it, to move for judgment accordingly. 
 
 Judgment on Motion for Judgment. 
 
 Judgment may in various cases be had by default; and, as 
 has been pointed out, the judge at or after the trial of the action 
 may give judgment. 
 
 P>ut the judge may, as lias been explained, abstain from giving 
 any judgment, and leave the matter wholly at large. Or he may 
 reserve leave to move to set aside the judgment entered. Or, 
 again, there may have been no one trial of the action; but 
 various questions or issues may have been ordered to be tried 
 indifferent ways. In all these cases the judgment of the Court 
 will he obtained by motion for judgment. And in all these 
 eases, too, the motion will be on notice simply, without any rule 
 to show cause. 
 
 Again, at a trial by jury the judge, having taken the opinion 
 of the jury upon the questions left to them, may have caused the 
 finding upon some issue in the action to be wrongfully entered, 
 having regard to the answers of the jury ; and hence may have 
 . lire-ted a wrong judgment. Or the finding upon all the issues 
 may have been rightly entered, but he may have misapplied the 
 law i" them, and so arrived at a wrong judgment. In either of 
 ih^-' cases the party aggrieved may, Avithout any leave reserved, 
 to set aside the judgment and enter the right one. But, 
 it without leave reserved, the motion must be for a rule to 
 shov. cause. 
 
 New Trial. 
 
 With respect to new trials, some important changes of practice 
 ;ir' introduced.
 
 EXECUTION. 60 
 
 In the first place, misdirection, or the improper admission, or 
 rejection of evidence will be no ground for a new trial, unless 
 in the opinion of the Court some substantial wrong or mis- 
 carriage has been occasioned thereby. And, secondly, a new 
 trial may be granted of any one question in an action without 
 disturbing the decision of the others. 
 
 Motions for new trials in the Queen's Bench, Common Pleas- 
 and Exchequer Divisions must, as hitherto, be for rules to show 
 cause, and must be made to Divisional Courts. 
 
 Execution. 
 
 There lias hitherto been some diversity between the several 
 Courts now consolidated with respect to their modes of enforc- 
 ing judgments. Certain processes have been available in some 
 Courts which have not been so in others. Thus the Court of 
 Chancery has used the process of Sequestration, which the 
 < lommon Law Courts have not. The Common Law Courts 
 have had power to attach debts due to a judgment debtor in 
 satisfaction of the judgment ; the Court of Chancery has not. 
 
 Under the new system all the existing processes and methods 
 »>f execution will be available in all branches of the Court. And in 
 tin' main the practice as to each kind of execution remains as it 
 has been; the changes are for the most part of a kind which 
 need not be mentioned here. 
 
 Two points, however, are too important to remain unnoticed. 
 
 Hitherto when judgment followed upon the verdict of a 
 jury, the successful party was not entitled to issue execution 
 until fourteen days after the trial, unless the judge gave him 
 leave to issue it earlier. Under the new system there is no 
 I irovision for any such interval. 
 
 And, again, by the rules now coming into force, any order of 
 any Court or judge may be enforced in the same way in which 
 a judgment to the same effect might be enforced. 
 
 Appeals. 
 
 It has already been pointed out that, under the new system, an 
 appeal will lie from every judgment and order of the High 
 Court, except where the judgment or order has been by consent,
 
 36 INTRODUCTION. 
 
 or relates only to costs when costs are discretionary, and except 
 in a few other cases, which need not he further specified here. 
 
 The methods of reaching the Court of Appeal hitherto in use 
 in the Common Law Courts, hy proceedings in error, and 
 hy appeal upon a case stated for the purpose, are abolished. 
 And one uniform method of appeal is provided for all cases, 
 namely hy motion, after notice to the parties affected hy the 
 appeal. But, though in a somewhat altered form, in substance 
 the right to proceed by bill of exceptions is preserved. 
 
 When an appeal is brought, the Court of Appeal will have 
 complete control over the action or matter. It will have all the 
 powers of the Court of first instance, and can give whatever 
 judgment that Court ought to have given. No cross appeals need 
 ever be brought. But the respondent who means to take any 
 exception to the judgment under appeal will give notice to that 
 effect to the appellant. Even the omission of such a notice will 
 not limit the powers of the Court of Appeal, though it may be 
 ground for adjourning the argument. 
 
 Appeals from interlocutory orders must be brought within 
 twenty- one days, and must be heard before not less than two 
 judges. Appeals from final judgments must be brought within 
 a year, and must be heard before not less than three judges. 
 A single judge may give interlocutory directions relating to the 
 appeal. 
 
 Motions. 
 
 The ordinary practice in the Common Law Courts with regard 
 to motions has been to move, in the first place, for a rule to« 
 show cause. Then, either after the rule became returnable, cause- 
 was shown, and the matter disposed of ; or, as in the case of new 
 trial and other-like motions, the case went into the paper, and 
 came on in its order. 
 
 For the future there will, as a general rule, be no rules ta 
 show cause ; but notice will be given to the parties affected, and 
 the merits of the motion Avill be dealt with in the first instance. 
 This will not, however, affect the cases in which the practice has- 
 been to grant rules absolute hi the first instance. And in two 
 instances, the rule to show cause is still retained ; that is to say, 
 in the case of a motion for a new trial and in the case of a
 
 PROCEEDINGS IN CHAMBERS. 37 
 
 motion, without leave reserved, to set aside a judgment directed 
 by a judge at the trial, on the ground that he has misapplied the 
 law to the facts as found. 
 
 Proceedings in Chambers. 
 
 The practice at Chambers is not materially altered in any of 
 the divisions from that hitherto in force, except that the list of 
 matters excluded from the jurisdiction of the Masters of the 
 Queen's Bench, Common Pleas, and Exchequer Divisions is not 
 identical in all respects with the former list. 
 
 Printing Proceedings. 
 
 Printing has not been in general use in the Common Law 
 Courts. In Chancery it has been in universal use for certain 
 proceedings for many years. 
 
 Even in Chancery, however, the practice as to printing has 
 been different with regard to different documents. Bills have 
 been printed by the Plaintiff, and then filed. Answers have 
 been filed in manuscript, and then printed by the parties filing 
 them. Affidavits and depositions have been filed in manuscript, 
 and then printed by the officers of the Court. 
 
 Under the new system all pleadings, other than petitions and 
 summonses, unless under three folios in length, will be printed. 
 80 will special cases. Answers to interrogatories, and depositions 
 will be printed, unless otherwise ordered. When the parties 
 consent to try the action on affidavit, the affidavits will be 
 printed. 
 
 And a uniform system of printing is adopted. It will lie 
 done entirely by the parties. The cost, not exceeding a fixed 
 sum, will be allowed on taxation. And copies must be furnished 
 at a fixed rate. 
 
 Costs. 
 
 In the Common Law Courts, subject to the provisions of the 
 County Court Acts and other Acts depriving a plaintiff of costs in 
 certain cases, the statutory rule has been that costs followed 
 the event. 
 
 In the Court of Chancery, various classes of persons have in 
 certain cases been entitled to theircosts out of the estate or fund the
 
 38 
 
 INTRODUCTION. 
 
 subject of the suit ; and this right is expressly preserved to them. 
 In other cases the costs have been in the discretion of the Court ; 
 though the practice has been that the party failing was ordered 
 to pay costs unless there were special circumstances affording a 
 reason why he should not. 
 
 In Admiralty also, costs have been in the control of the Court ; 
 though in that Court also they have ordinarily been allowed to 
 follow the event unless there were special reasons to the contrary. 
 
 The Court of Probate has had a like control over costs. 
 
 Under the new system, costs are in general to be in the 
 discretion of the Court in all divisions. But it is expressly pro- 
 vided that in the Queen's Bench, Common Pleas, and Exchequer 
 divisions, upon a trial by jury, costs are to follow the event as 
 heretofore unless the contrary be ordered upon special applica- 
 tion, and for good cause shown. 
 
 Each of the Courts has had its own scale of costs applicable 
 to the particular kinds of proceedings which coidd be taken in 
 the Court. Under the Judicature Act it became necessary to 
 frame a system of costs dependant upon the nature of the 
 proceeding, not upon the division in which it is taken. The 
 method adopted is as follows. Two scales of costs are provided ; 
 a higher and a lower. The higher scale is applicable to the more 
 complicated classes of cases assigned by the 34th section of the 
 Judicature Act to the Chancery division, provided the value of 
 the subject matter is £1000 or over it ; this being in accordance 
 with the existing practice in Chancery. This higher scale is also 
 applicable to cases in which an injunction is claimed and the in- 
 junction is the principal relief sought. In other cases the lower 
 scale will apply. The Court or a judge may however in any case 
 specially order that either scale shall apply either in whole or 
 in part. 
 
 As to the sums to be allowed in respect of particular matters a 
 vide discretion is given both to the taxing officers and to the 
 ( lourt, either by original order or upon appeal from the officer. 
 ( )n the one baud, in respect of various proceedings the taxing 
 officer is empowered to make a special allowance for extra labour 
 where the ordinary fee is an insufficient remuneration. On the 
 other hand the Court or a judge, or in the absence of an order 
 by either, the taxing officer has power to disallow the costs of
 
 CONCLUSION. 39 
 
 pleadings, affidavits, or other documents needlessly lengthy, pro- 
 ceedings improperly or unnecessarily taken, and in many other 
 like cases. 
 
 In all cases the allowance or disallowance by the taxing officer 
 is to be subject to an appeal to a judge. And a uniform practice 
 in obtaining a review of taxation is provided for all the divisions. 
 
 Conclusion. 
 Xo attempt has been made in this introduction to give any- 
 thing like a complete account of the effect of the Judicature Acts 
 or of the Procedure established under them. ISTor has any 
 attempt been made to state all or nearly all the matters in which 
 the new practice differs from the systems hitherto in force. All 
 ili.it has been sought is to exhibit, in the merest outline, a few 
 features, but those the most important, of the jurisdiction and 
 procedure of the Courts for the future ; and to show how they 
 differ from those with which we have been familiar.
 
 SUPREME COURT OE JUDICATURE ACT, 1873. 
 
 36 & 37 VICT. c. 66. 
 
 An Act for the constitution of a Supreme Court, AD _* 8 73- 
 and for other purposes relating to the better s. i. 
 Administration of Justice in England ; and to 
 authorise the transfer to the Appellate Division 
 of such Supreme Court of the Jurisdiction of 
 the Judicial Committee of Her Majesty's Privy 
 Council. 
 
 [5th August 1873. 
 
 Whereas it is expedient to constitute a Supreme Court, 
 and to make provision for the better administration of 
 justice in England : 
 
 And whereas it is also expedient to alter and amend the 
 law relating to the Judicial Committee of Her Majesty's 
 Privy Council : 
 
 Be it enacted by the Queen's most Excellent Majesty, 
 by and with the advice and consent of the Lords Spiritual 
 and Temporal, and Commons, in this present Parliament 
 assembled, and by the authority of the same, as follows : 
 
 Preliminary. 
 
 1. This Act may be cited for all purposes as the Short title. 
 " Supreme Court of Judicature Act, 1873." 
 
 2. This Act, except any provision thereof which is ^ omme f n A e " l 
 declared to take effect on the passing of this Act, shall 
 commence and come into operation on the second day of 
 November, 1874. 
 
 By 37 & 38 Vict., c. 83, post, p. 125, the period for the Act's 
 coming into operation was postponed to the 1st November, 1875. 
 By s. 2 of the Act of 1875, post, p. 125, the operation of ss. 20, 21, 
 and 55, post, p. 54, 55, 85, by which appeals to the House of Lords 
 would be abolished, and second appeals from the High Court done 
 away with, is postponed to the 1st November, 187ti. 
 
 Ss. 27, 60, 61, and 68 came into operation on the passing of the Act. 
 But the last of them is now superseded by s. 17 of the Act of 1875.
 
 I J 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. iii. 
 
 PART I. 
 ( Institution axd Judges of Supreme Court. 
 
 Union of 3. From and after the time appointed for the com- 
 
 Courtslnto Hiencement of this Act, the several Courts hereinafter 
 one Supreme mentioned (that is to say), The High Court of Chancery of 
 England, the Court of Queen's Bench, the Court of Common 
 Pleas at Westminster, the Court of Exchequer, the High 
 Court of Admiralty, the Court of Prohate, the Court fi u 
 Divorce and Matrimonial Causes, and the London Court 
 of Bankruptcy shall be united and consolidated together, 
 and shall constitute, under and subject to the provisions of 
 this Act, one Supreme Court of Judicature in England. 
 
 Although the Divorce Court is consolidated with the Supreme 
 Court, and its jurisdiction transferred to the High Court (sec. 16, 
 poi t, p. 51), divorce and matrimonial causes are expressly exempted 
 from the operation of the Rules of Procedure (Order I., Rule 1 ; Order 
 LXIL, post, pp. 151, 312) ; and the practice in all such causes will 
 remain unaltered. 
 
 By ss. 9 and 33 of the Act of 1S75, so much of this section as relates to 
 the Bankruptcy Court is repealed. The court is left a separate 
 court, and it is provided that the office of Chief Judge in Bank- 
 ruptcy shall be filled by a Judge of the High Court. 
 
 Division of 4. The said Supreme Court shall consist of two per- 
 Supreme manent Divisions, one of which, under the name of " Her 
 
 Court into ' ' . 
 
 Court of Majesty's High Court of Justice, ' shall have and exercise 
 a'court an original jurisdiction, with such appellate jurisdiction from 
 of appellate inferior Courts as is hereinafter mentioned, and the other 
 of Which, under the name of " Her Majesty's Court of 
 Appeal," shall have and exercise appellate jurisdiction. 
 with such original jurisdiction as hereinafter mentioned as 
 may be incident to the determination of any appeal. 
 
 As to the appellate jurisdiction of the High Court, see ss. 45 and 
 47, post, p. 81, S3, and s. 15 of the Act of 1875, post, p. 135. 
 
 As to the jurisdiction of the Court of Appeal, see s. 19, post, 
 p. 54 and note thereto, and Order LVIIL, post, p. 301. 
 
 Constitution 
 of High 
 Court of 
 Justice. 
 
 5. Her Majesty's High Court of Justice shall be con- 
 stituted as follows : — The first Judges thereof shall be the 
 Lord Chancellor, the Lord Chief Justice of England, the 
 Master of the Rolls, the Lord Chief Justice of the Common 
 Pleas, the Lord Chief Baron of the Exchequer, the several 
 Vice-Chancellors of the High Court of Chancery, the Judge 
 of the Court of Probate and of the Court for Divorce ami 
 Matrimonial Causes, the several Puisne Justices of the 
 Courts of Queens Bench and Common Pleas respectively,
 
 PART 1. CONSTITUTION AM) JUDGES OF SUPBEHE COUKT. 43 
 
 the several Junior Barons of the Court of Exchequer, and s. v. 
 the Judge of the High Court of Admiralty, except such, 
 if any, of the aforesaid Judges as shall be appointed ordi- 
 nary Judges of the Court of Appeal. 
 
 Subject to the provisions hereinafter contained, whenever 
 the office of a Judge of the said High Court shall become 
 vacant, a new Judge may be appointed thereto by Her 
 Majesty, by Letters Patent. All persons to be hereafter 
 appointed to fill the places of the Lord Chief Justice of 
 England, the Master of the Rolls, the Lord Chief Justice 
 of the Common Pleas, and the Lord Chief Baron, and 
 their successors respectively, shall continue to be appointed 
 to the same respective offices, with the same precedence, 
 and by the same respective titles, and in the same manner, 
 respectively, as heretofore. Every Judge Avho shall be 
 appointed to fill the place, of any other Judge of the said 
 High Court of Justice shall be styled in his appointment 
 "Judge of Her Majesty's High Court of Justice," and 
 shall be appointed in the same manner in which the JAiisne 
 Justices and Junior Barons of the Superior Courts of 
 Common Law have been heretofore appointed: Provided 
 always that if at the commencement of this Art the 
 number of Puisne Justices and Junior Barons who shall 
 become Judges of tin: said High Court shall exceed 
 tioelve in the whole, no new Judge of the said High 
 Court shall be appointed in the place of any such Puisne 
 Justice or Junior Barm/ who shall die or resign while 
 such whole number shall exceed twelve, it being intended 
 that the permanent number of Judges of the said High 
 Court shall not exceed twenty-one. 
 
 All the Judges of the said Court shall have in all 
 respects, save as in this Act is otherwise expressly provided, 
 ecpial power, authority, and jurisdiction ; and shall be 
 addressed in the manner which is now customary in 
 addressing the Judges of the Superior Courts of Common 
 Law. 
 
 The Lord Chief Justice of England for the time being 
 shall be President of the said High Court of .Justice in 
 the absence of the Lord Chancellor. 
 
 By the Act of 1875, sec. 3, post, p. 127, the proviso printed in 
 italics is repealed. 
 
 By s. 32, post, p. 72, the distinctive office of either of the Chief 
 Justices, the Chief Baron, or the Master of the Rolls may be 
 abolished upon a vacancy occurring. 
 
 6. Her Majesty's Court of Appeal shall be constituted as Constitution 
 follows : — There shall be five ex-officio Judges thereof and°l Co " rtof 
 also so many ordinary Judges (mil exceeding nine at any
 
 44 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. vi. one time) as Her Majesty shall from time to time appoint. 
 The ex-officio Judges shall be the Lord Cliancellor, the Lord 
 Chief Justice of England, the Master of the Rolls, t/ie 
 Lord Chief Justice of the Common Pleas, and the Lord 
 Chief Baron of the Exchequer. The first ordinary Judges 
 of the said Court shall be the existing Lords Justices of 
 Appeal in Chancery, the existing salaried Judges of the 
 Judicial Committee of Her Majesty's Privy Council, ap- 
 pointed under the " Judicial Committee Act, 1871," and 
 such three other persons as Her Majesty may be pleased to 
 appoint by Letters Patent; such appointment may be 
 made either within one month before or at anytime after 
 the day appointed for the commencement of this Act, but 
 if /nude before shall take effect at the commencement of 
 this Art. 
 
 Besides the said ex-officio Judges and ordinary 
 Judges, it shall he lawful for Her Majesty (if she shall 
 think fit), from time to time to appoint, under Her 
 Royal Sign Manned, as additional Judges of the Court 
 of Appeal, any persons who, having held in England 
 the office of a Judge of the Superior Courts of West- 
 minster hereby united and consolidated, or of Her 
 Majesty s Supreme Court hereby constituted, or in 
 Scotland the office of Lord Justice General or Lord 
 Justice Clerk, or in Ireland the ofiice of Lord Chan- 
 cellor or Lord Justice of Appeal, or in India the ofiice 
 of Chief Justice of the High Court of Judicature at 
 Fort William hi Bengal, or Madras, or Bombay, shall 
 respectively signify in writing their loillingness to serve as 
 such additional Judges in the Court of Appeal. No 
 such additional Judge shall be deemed to Juive under- 
 taken the duty of sitting in the Court of Appeal when 
 prevented from so doing by attendance in the House of 
 Lords, or on the discharge of any other public duty, 
 or by any other reasonable impediment. 
 
 The ordinary awl additional Judges of the Court of 
 Appeal shall be styled Lords Justices of Appeal. All the 
 Judges of the said Court shall have, in all respects, save as 
 in tit is Act is otherwise expiressly mentioned, equal power, 
 auth ority, a nd jurisdiction. 
 
 Whenever the office of an ordinary Judge of the Court 
 of Appeal becomes vacant, a new Judge may be appointed 
 thereto by Her Majesty by Letters Patent. 
 
 The Lord Chancellor for the time being shall be President 
 of the Court of Appeal. 
 
 This section is repealed by the Act of 1875, post, pp. 127, 138.
 
 PART I. CONSTITUTION AND JUDGES OF SUPREME COURT. 45 
 
 And the constitution of the Court of Appeal is governed by the s. vii. 
 following provision : — — 
 
 S. 4. " Her Majesty's Court of Appeal in this Act and in the prin- Constitution 
 cipal Act referred to as the Court of Appeal shall be constituted of Court of 
 as follows : There shall be five ex-officio Judges thereof, and also A PP eal - 
 so many ordinary Judges, not exceeding three at any one time, as 
 Her Majesty shall from time to time appoint. 
 
 The ex-officio Judges shall be the Lord Chancellor, the Lord Chief 
 Justice of England, the Master of the Rolls, the Lord Chief 
 Justice of the Common Pleap, and the Lord Chief Baron of the 
 Exchequer. 
 
 The first ordinary Judges of the said court shall be the present 
 Lords Justices of Appeal in Chancery, and such one other person 
 as Her Majesty may be pleased to appoint by Letters Patent. Such 
 appointment may be made either before or after the commencement 
 of this Act, but if made before shall take effect at the commence- 
 ment of the Act. 
 
 The ordinary Judges of the Court of Appeal shall be styled 
 Justices of Appeal. 
 
 The Lord Chancellor may by writing addressed to the President 
 of any one or more of the following divisions of the High Court of 
 Justice, that is to say, the Queen's Bench Division, the Common 
 Pleas Division, the Exchecpier Division, and the Probate, Divorce, 
 and Admiralty Division, request the attendance at any time, except 
 during the times of the spring or summer circuits, of an additional 
 Judge from such division or divisions (not being an ex-officio Judge 
 or Judges of the Court of Appeal) at the sittings of the Court of 
 Appeal ; and a judge, to be selected by the division from which his 
 attendance is requested, shall attend accordingly. 
 
 Every additional Judge, during the time that he attends the 
 sitting of Her Majesty's Court of Appeal, shall have all the juris- 
 diction and powers of a Judge of the said Court of Appeal, but he 
 shall not otherwise be deemed to be a judge of the said Court, or 
 to have ceased to be a judge of the division of the High Court of 
 Justice to which he belongs. 
 
 Section fifty-four of the principal Act is hereby repealed, and 
 instead thereof the following enactment shall take effect : No Judge 
 of the said Court of Appeal shall sit as a Judge on the hearing of 
 an appeal from any judgment or order made by himself, or made 
 by any Divisional Court of the High Court of which he was and 
 is a member. 
 
 Whenever the office of an ordinary Judge of the Court of Appeal 
 becomes vacant a new Judge may be appointed thereto by Her 
 Majesty by Letters Patent." 
 
 7 . The office of any Judge of the said High Court of Vacancies by 
 Justice, or of the said Court of Appeal, may be vacated oFj^dgeT 
 by resignation in writing, under his hand, addressed to and eff ? ct of 
 the Lord Chancellor, without any deed of surrender ; generally. 
 and the office of any Judge of the said High Court shall 
 be vacated by his being appointed a Judge of the said 
 Court of Appeal. The said Courts respectively shall be 
 deemed to be duly constituted during and notwithstand- 
 ing any vacancy in the office of any Judge of either of 
 such Courts.
 
 4(5 
 
 SUPREME COURT OP JUDICATURE ACT, 1873. 
 
 .->. VUl. 
 
 Qualifica- 
 tions of 
 Judges not 
 required to 
 be Serjeant? 
 at-law. 
 
 8. Any banister of not less than ten years' standing 
 shall be qualified to be appointed a Judge of the said High 
 Court of Justice ; and any person who if this Act had not 
 passed "would have been qualified by law to be appointed 
 ■ a Lord Justice of the Court of Appeal in Chancery, or has 
 been a Judge of the High Court of Justice of not less 
 than one year's standing, shall be qualified to be ap- 
 pointed an ordinary Judge of the said Court of Appeal : 
 Provided, that no person appointed a Judge of either 
 of the said Courts shall henceforth be required to take, 
 or to have taken, the degree of Serjeant-at-Law. 
 
 By 14 & 15 Vict., c. 83, s. 1, any person may be appointed a 
 Lord Justice who is or lias lieen a barrister of fifteen years' standing. 
 
 Tenure of 
 office of 
 Judges, and 
 oaths of 
 office. 
 Judges not 
 to sit in the 
 House of 
 Commons. 
 
 9. All the Judges of the High Court of Justice, and of 
 the Court of Appeal respectively, shall hold their offices 
 for life, subject to a power of removal by Her Majesty, 
 on <ii/ address presented to Her Majesty by both Houses 
 of Parliament. No Judge of eitlier of the said Courts 
 shall be capable of being elected to or of sitting in the 
 House of Commons. Every Judge of cither of the said 
 Courts (other than the Lord Chancellor) when he enters 
 nit the execution of his office, shall take, in the presence 
 of the Lord Chancellor, the Oath of Allegiance, and Judicial 
 Oath as defined by the Promissory Oaths Act, 18G8. The 
 oaths to be taken by the Lord Chancellor shall be the samt 
 as heretofore. 
 
 This section is repealed by the Act of 1875, post, p. 138, and the 
 following provisions substituted for it : — 
 
 Tenure of 
 office of 
 
 S. 5. " All the Judges of the High Court of Justice, and of the 
 < !i mrt of Appeal respectively, with the exception of the Lord 
 iViU 'f a Chancellor, shall hold their offices as such Judges respectively during 
 good behaviour, subject to a power of removal by Her Majesty, on 
 an address presented to Her Majesty by both Houses of Parlia- 
 ment. No Judge of either of the said Courts shall be capable of 
 being elected to or of sitting in the House of Commons. Every 
 person appointed after the passing of this Act to be Judge 
 .if either of the said Courts (other than the Lord Chancellor), when 
 he enters on the execution of his office, shall take, in the presence 
 of the Lord Chancellor, the oath of allegiance, and judicial oath as 
 defined by the Promissory Oaths Act, 1868. The oaths to be taken 
 by the Lord Chancellor shall be the same as heretofore." 
 
 office. 
 Judges not 
 
 to sit in the 
 House of 
 Commons. 
 
 Precedence 
 of Judges. 
 
 10. The ex-officio Judges of the Court of Appeal shall 
 ra ah- In the Supreme Court in the order of their present 
 respective official precedence. The other Judges (whether 
 ordinary or additional) of the Court of Appeal shall rank- 
 in the Siijii-'iiii Court, if Peers or Privy Councillors, in
 
 PART I. CONSTITUTION AND JUDGES OP SUPREME COURT. 47 
 
 the order of their respective precedence ; and the rest of the s. xi. 
 Judges of the Court of Appeal shall rank according to the 
 priority of their respective appointments to he Judges 
 thereof. 
 
 Tlir Judges of the High Court of Justin/, w7io arc not also 
 Judges of the Court of Appeal, shall rank next after the 
 Judges of the Court of Appeal, and among themselves 
 (subject to the provisions hereinafter contained as to 
 existing Judges) according to the priority of their res- 
 •■ •/ v ' appointments. 
 
 This section is repealed by the Act of 1875, and the following 
 provision is substituted: — 
 
 S. 6. " The Lord Chancellor shall be President of the Court of Precedence 
 Appeal ; the other ex-officio Judges of the Court of Appeal shall rank °f Judges. 
 in the order of their present respective official precedence. The 
 ordinary Judges of the Court of Appeal, if not entitled to precedence 
 as Peers or Privy Councillors, shall rank according to the priority of 
 their respective appointments as such Judges. 
 
 " The Judges of the High Court of Justice who are not also Judges 
 of the Court of Appeal shall rank next after the Judges of the 
 Court of Appearand, among themselves (subject to the provisions 
 in the principal Act contained as to existing Judges), according to 
 the priority of their respective appointments.'' 
 
 11. Every existing Judge, who is by this Act made a &" 
 Judge of the High Court of Justice or an ordinary Judge obligations 
 of the Court of Appeal, shall, as to tenure of office, rank, ° f existing 
 title, salary, pension, patronage, and powers of appoint- 
 ment or dismissal, and all other privileges and disquali- 
 fications, remain in the same condition as if this Act had 
 not passed ; and, subject to the change effected in their 
 jurisdiction and duties by or in pursuance of the pro- 
 visions of this Act, each of the said existing Judges shall 
 be capable of performing and liable to perform all duties 
 which he would have been capable of performing or liable 
 to perform in pursuance of any Act of Parliament, law, or 
 custom if this Act had not passed. No Judge appointed 
 before the passing of this Act shall be required to act under 
 any Commission of Assize, Nisi Prius, Oyer and Ter- 
 miner, or Coal Delivery, unless he was so liable by usage 
 or custom at the commencement of this Act. 
 
 Service as a Judge in the High Court of Justice, or in 
 the Court of Appeal, shall, in the case of an existing 
 Judge, for the purpose of determining the length of 
 service entitling such Judge to a pension on his retire- 
 ment, be deemed to be a continuation of his service in 
 the Court of which he is a Judge at the time of the 
 commencement of this Act. 
 
 Judges.
 
 48 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 g x ; By the Act of 1875 it is enacted as follows : 
 
 ,, . — . s. 8. "Whereas by section eleven of the principal Act it is provided 
 
 judges and as follows : " Every existing judge who is by this Act made a Judge 
 registrar. of the High Court of Justice or an ordinary Judge of the Court of 
 Appeal shall, as to tenure of office, rank, title, salary, pension, 
 patronage, and powers of appointment or dismissal, and all other 
 privileges and disqualifications, remain in the same condition as if 
 this Act had not passed ; and, subject to the change effected in 
 their jurisdiction and duties by or in pursuance of the provisions of 
 this Act, each of the said existing judges shall be capable of per- 
 forming and liable to perform all duties which he would have been 
 capable of performing or liable to perform in pursuance of any Act 
 of Parliament, law. or custom if this Act had not passed. No judge 
 appointed before the passing of this Act shall be required to act 
 under any commission of assize, nisi prius, oyer and terminer, or 
 gaol delivery, unless he was so liable by usage or custom at the 
 commencement of this Act :" 
 
 And whereas the judge of the High Court of Admiralty is by the 
 principal Act appointed a judge of the High Court of Justice : 
 
 And whereas such Judge is, as to salary and pension, inferior in 
 position to the other puisne Judges of the Superior Courts of Common 
 Law, but holds certain ecclesiastical and other offices in addition to 
 the office of Judge of the High Court of Admiralty : 
 
 And whereas it is expedient that such judge, if he be willing to 
 relinquish such other offices, should be placed in the same position 
 as to rank, salary, and pension, as the other puisne judges of the 
 superior courts of common law : 
 
 Be it enacted that — 
 
 If the existing Judge of the High Court of Admiralty under his 
 hand signifies to the Lord Chancellor in writing, before the com- 
 mencement of the principal Act, that he is willing to relinquish such 
 other offices as aforesaid, and does before the commencement of the 
 principal Act resign all other offices of emolument held by him 
 except the office of Judge of the High Court of Admiralty, he 
 shall, from and after the commencement of the principal Act, be 
 entitled to the same rank, salary, and pension as if he had been 
 appointed a Judge of the High Court of Justice immediately on the 
 commencement of the principal Act, with this addition, that, in 
 reckoning service for the purposes of his pension, his service as a 
 Judge of the High Court of Admiralty shall be reckoned in the 
 same manner as if the High Court of Justice had been established 
 at the time of his accepting the office of Judge of the High Court 
 of Admiralty, and he had continued from such time to be a Judge 
 of the said High Court of Justice. 
 
 The present holder of the office of registrar of Her Majesty in 
 Ecclesiastical and Admiralty causes, shall, as respects any appeals in 
 which he would otherwise be concerned coming within the cognizance 
 of tho Court of Appeal, be deemed to be an officer attached to the 
 Supreme Court ; and the office, so far as respects the duties in 
 relation to such appeals as aforesaid, shall be deemed to be a separate 
 office within the meaning of section seventy-seven of the principal 
 Act, and may be dealt with accordingly. He shall be entitled, in so 
 far as he sustains any loss of emoluments by or in consequence of 
 the principal Act or this Act, to prefer a claim to the Treasury in 
 the same manner as an officer paid out of fees whose emoluments 
 are affected by the passing of the principal Act is entitled to do 
 under section eighty of the principal Act. 
 
 Subject as aforesaid the person who is at the time of the passing
 
 PART I. CONSTITUTION AND JUDGES OF SUPREME COURT. 49 
 
 of this Act registrar of Her Majesty in Ecclesiastical and Ad- g, x ;;_ 
 
 rniralty causes shall, notwitstanding anything in the principal Act — 
 
 or this Act, have the same rank and hold his office upon the same 
 
 tenure and upon the same terms and conditions as heretofore : but 
 
 it shall be lawful for Her Majesty by Order in Council, made upon 
 
 the recommendation of the Lord Chancellor, with the concurrence 
 
 of the Treasury, to make, notwithstanding anything contained in 
 
 any Act of Parliament, such arrangements with respect to the 
 
 duties of the said last mentioned office, either by abolition thereof 
 
 or otherwise, as to Her Majesty may seem expedient : provided that 
 
 such order shall not take effect during the continuance in such office 
 
 of the said person so being registrar at the time of the passing of 
 
 this Act without his assent. 
 
 Every Judge of the Probate, Divorce, and Admiralty Division of 
 the said High Court of Justice appointed after the passing of this 
 Act shall, so far as the state of business in the said division will 
 admit, share with the judges mentioned in section thirty-seven of 
 the principal Act the duty of holding sittings for trials by jury in 
 London and Middlesex, and sittings under commissions of assize, 
 oyer and terminer, and gaol delivery." 
 
 The amending section, first, places the Judge of the Admiralty 
 Court, if he elect to accept the prescribed conditions, on the same 
 footing with the other Judges of the High Court. Secondly, it 
 regulates the position of the Admiralty Registrar in respect of the 
 matters specified. Thirdly, it imposes upon any judge henceforth 
 to be appointed to the Probate, Divorce, and Admiralty division, 
 the duty of going circuit, and taking part in the sittings for jury 
 trials in .London and Middlesex. 
 
 12. If, in any case not expressly provided for by this Provisions 
 Act, a liability to any duty, or any authority or power, d° nar y*dSies 
 not incident to the administration of justice in any Court, of judges of 
 whose jurisdiction is transferred by this Act to the High courts. ™ 
 Court of Justice, shall have been imposed or conferred by 
 any statute, law, or custom upon the judges or any judge 
 of any of such Courts, save as hereinafter mentioned, 
 every judge of the said High Court shall be capable of 
 performing and exercising, and shall be liable to perform 
 and empowered to exercise every such duty, authority, 
 and power, in the same manner as if this Act had not 
 passed, and as if he had been duly appointed the successor 
 of a judge liable to such duty, or possessing such authority 
 or power, before passing of this Act. Any such duty, 
 authority, or power, imposed or conferred by any statute, 
 law, or custom, in any such case as aforesaid, upon the 
 Lord Chancellor, the Lord Chief Justice of England, the 
 Master of the Rolls, the Lord Chief Justice of the Common 
 Pleas, or the Lord Chief Baron, shall continue to be per- 
 formed and exercised by them respectively, and by their 
 respective successors, in the same manner as if this Act 
 had Qot passed. 
 
 D
 
 50 
 
 SOTEEME COUKT OP JUDICATURE ACT, 1873. 
 
 Salaries of 
 future 
 Judge?. . 
 
 Retiring 
 pensions of 
 future 
 Judges 
 of High 
 Court of 
 Justice, and 
 ordinary- 
 Judges of 
 Court of 
 Appeal. 
 
 13. Subject to the provisions in this Act contained 
 with respect to existing Judges, there shall he paid the 
 following salaries, which shall in each case include any 
 pension granted in respect of any public office previously 
 tilled by him, to which the Judge may be entitled ; 
 
 To the Lord Chancellor, the sums hitherto payable to 
 hirn; 
 
 To the Lord Chief Justice of England, the Master of 
 the Bolls, the Lord Chief Justice of the Common 
 Pleas, and the Lord Chief Baron of the Exchequer 
 the same annual sums which the holders of those 
 offices now respectively receive ; 
 To each of the ordinary Judges of the Court of 
 
 Appeal ; and, 
 To each of the other Judges of the High Court of 
 
 Justice, the sum of five thousand pounds a year. 
 No salary shall be •payable to any additional Judge of 
 the Court of Appeal appointed under this Act; but nothing 
 in this Act shall in any way prejudice the right of any such 
 <{<]<] it i< >nal Judge t<> any pension to which he may be by Ian- 
 entitled. 
 
 This section, so far as it relates to additional Judges of the Court 
 of Appeal is repealed by the Act of 1875. 
 
 14. Her Majesty may, by Letters Patent, grant to any 
 Judge of the High Court of Justice, or to any ordinary 
 Judge of the Court of Appeal who has served for fifteen 
 years as a Judge in such Courts, or either of them, or who 
 is disabled by permanent infirmity from the performance 
 of the duties of his office, a pension, by Avay of annuity, 
 to be continued during his life : 
 
 In the case of the Lord Chief Justice of England, 
 the Master of the Eolls, the Lord Chief Justice of 
 the Common Pleas, and the Lord Chief Baron of 
 the Exchequer, the same amount of pension which 
 at present might under the same circumstances be 
 granted to the holder of the same office : 
 In the case of any ordinary Judge of the Court of 
 Appeal or any other Judge of the High Court of 
 Justice, the same amount of pension which at present 
 might under the same circumstances be granted to 
 a Puisne Justice of the Court of Queen's Bench. 
 
 Salaries and 15. Subject to the provisions in this Act contained 
 
 fo bepaid.™ with respect to existing Judges, the salaries, allowances, 
 
 and pensions payable to the Judges of the High Court 
 
 of Justice, and the ordinary Judges of the Court of
 
 TART II. JURISDICTION AND LAW. 51 
 
 Appeal respectively, shall be charged on andpaid out of S. xvi. 
 the Consolidated Fund of the United Kingdom of Gfueat 
 Britain and Ireland, or the growing produce thereof : 
 such salaries and pensions shall grow due from day to day, 
 but shall be payable to the persons entitled thereto, or as 
 their executors or administrators, on the usual quarterly 
 days of payment, or at such other periods in every year to 
 the Treasury may from time to time determine. 
 
 PART II. 
 Jurisdiction and Law. 
 
 16. The High Court of Justice shall be a Superior jurisdiction 
 Court of Record, and, subject as in this Act mentioned, com'fof 
 there shall be transferred to and vested in the said High Justice. 
 Court of Justice the jurisdiction which, at the com- 
 mencement of this Act, was vested in, or capable of being 
 exercised by, all or any of the Courts following ; (that is 
 to say,) 
 
 (1.) The High Court of Chancery, as a Common Law 
 Court as well as a Court of Equity, including 
 the jurisdiction of the Master of the Rolls, as 
 a Judge or Master of the Court of Chancery, and 
 any jurisdiction exercised by him in relation to 
 the Court of Chancery as a Common Law Court ; 
 
 (2.) The Court of Queen's Bench ; 
 
 (3.) The Court of Common Pleas at Westminster ; 
 
 (4.) The Court of Exchequer, as a Court of Revenue, as 
 well as a Common Law Court ; 
 
 (5.) The High Court of Admiralty ; 
 
 (6.) The Court of Probate ; 
 
 (7.) The Court for Divorce and Matrimonial Causes; 
 
 (8.) The London Court of Bankruptcy ; 
 
 (9.) The Court of Common Pleas at Lancaster; 
 (10.) The Court of Pleas at Durham; 
 (11.) The Courts created by Commissions of Assize, of 
 Oyer and Terminer, and of Gaol Delivery, or any 
 of such Commissions : 
 
 The jurisdiction by this Act transferred to the High Court of 
 Justice shall include (subject to the exceptions hereinafter 
 contained) the jurisdiction which, at the commencement 
 otf this Act, was vested in, or capable of being exercised 
 by, all or any one or more of the Judges of the said Courts,
 
 52 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. wii. respectively, sitting in Court or Chambers, or elsewhere, 
 when acting as Judges or a Judge, in pursuance of any 
 statute, law, or custom, and all powers given to any such 
 Court, or to any such Judges or Judge, by any statute ; 
 and also all ministerial powers, duties, and authorities, 
 incident to any and every part of the jurisdiction so 
 transferred. 
 
 So much of this section as relates to the London Court of 
 Bankruptcy is repealed by the Act of 1875. See note to s. 3, ante, 
 p. 42. 
 
 The Court of the Chancellor of the County Palatine of Lancaster 
 is not interfered with by the Act. See also s. 95, post, p. 112. 
 But appeals from that Court will go to the Court of Appeal under 
 s. 18, sub-s. 2, post, p. 53. 
 
 The whole of the jurisdiction of the Courts enumerated is 
 transferred by this section to the High Court of Justice. But the 
 procedure provided by the schedule of rules, post, p. 151 is not of 
 such wide application. The practice of the Divorce Court remains 
 unchanged ; sec. 70, post, p. 97; s. 18 of the Act of 1875, post, 
 p. 138. Order LXIL, post, p. 312 ; so do criminal proceedings, 
 sec. 71, post, p. 98; s. 19 of the Act of 1875, post, p. 137; Order 
 LXIL, post, p. 312; and proceedings on the Crown side of the Queen's 
 Bench and the Bevenue side of the Exchequer ; Order LXIL, ubi 
 supra. 
 
 Jurisdiction 17. There shall not he transferred to or vested in the 
 f^rredTo said High Court of Justice, by virtue of this Act — 
 
 High Court. 
 
 (1.) Airy appellate jurisdiction of the Court of Appeal 
 in Chancery, or of the same Court sitting as a Court 
 of Appeal in Bankruptcy : 
 
 (2.) Any jurisdiction of the Court of Appeal iu 
 Chancery of the County Palatine of Lancaster : 
 
 (3.) Any jurisdiction usually vested in the Lord Chan- 
 cellor or in the Lords Justices of Appeal in Chan- 
 cery, or either of them, in relation to the custody 
 of the persons and estates of idiots, lunatics, and 
 persons of unsound mind : 
 
 (i.) Any jurisdiction vested in the Lord Chancellor in 
 relation to grants of Letters Patent, or the issue 
 of commissions or other writings, to be passed 
 under the Great Seal of the United Kingdom : 
 
 (5.) Any jurisdiction exercised by the Lord Chancellor 
 in right of or on behalf of Her Majesty as visitor 
 of any College, or of any charitable or other foun- 
 dation : 
 
 (G.) Any jurisdiction of the Master of the Polls in 
 relation to records in London or elsewhere in 
 England.
 
 TART II. JURISDICTION AND LAW. 53 
 
 By s. 7 of the Act of 1875, it is enacted that "any juris- $ xviii 
 diction usually vested in the Lords Justices of Appeal in Chancery, 
 or either of them, in relation to the persons and estates of idiots, Jurisdiction 
 lunatics, and persons of unsound mind, shall be exercised by such i ^ords 
 Judge or Judges of the High Court of Justice or Court of Appeal respect of 
 as may be intrusted by the sign manual of Her Majesty or Her lunatics, 
 successors with the care and commitment of the custody of such 
 persons and estates ; and all enactments referring to the Lords 
 Justices as so intrusted shall be construed as if such Judge or Judges 
 so intrusted had been named therein instead of such Lords 
 Justices : Provided that each of the persons who may at the 
 commencement of the principal Act be Lords Justices of Appeal in 
 Chancery shall, during such time as he continues to be a Judge of 
 the Court of Appeal, and is intrusted as aforesaid, retain the 
 jurisdiction vested in him in relation to such persons and estates 
 as aforesaid." 
 
 18. The Court of Appeal established by this Act Jurisdiction 
 shall be a Superior Court of Record, and there shall be toCourt of 
 transferred to and vested in such Court all jurisdiction A PP eal - 
 and powers of the Courts following (that is to say) : 
 
 (1.) All jurisdiction and powers of the Lord Chan- 
 cellor and of the Court of Appeal in Chancery, 
 in the exercise of his and its appellate jurisdiction, 
 and of the same Court as a Court of Appeal in 
 Bankruptcy. 
 
 (2.) All jurisdiction and powers of the Court of Appeal 
 in Chancery of the county palatine of Lancaster, 
 and all jurisdiction and powers of the Chancellor 
 of the duchy and county palatine of Lancaster 
 when sitting alone or apart from the Lords Justices 
 of Appeal in Chancery as a Judge of re-hearing or 
 appeal from decrees or orders of the Court of 
 Chancery of the county palatine of Lancaster : ' 
 
 (3.) All jurisdiction and powers of the Court of the 
 Lord Warden of the Stannaries assisted by his 
 assessors, including all jurisdiction and powers 
 of the said Lord Warden Avhen sitting in his 
 capacity of judge : 
 
 (4.) All jurisdiction and powers of the Court of Ex- 
 chequer Chamber : 
 
 (5.) All jurisdiction vested in or capable of being 
 exercised by Her Majesty in Council, or the 
 Judicial Committee of Her Majesty's Privy Council, 
 upon appeal from any judgment or order of the 
 High Court of Admiralty, or from any order in 
 lunacy made by the Lord ( !hancellor, or any other 
 person having jurisdiction in lunacy. 
 
 As to the power given to Her Majesty in Council to transfer 
 other appeals to the Court of Appeal than those dealt with by this
 
 •34 
 
 SUPBEME COURT OF JUDICATURE ACT, 1873. 
 
 section, see s. 21 (the operation of which is postponed), post, p. 55. 
 As to the jurisdiction of the Lords Justices in Lunacy, see note to 
 the last section; 
 
 Appeals 
 from High 
 Court. 
 
 No appeal 
 
 in: Huh 
 Court or 
 Court of 
 Appeal to 
 House of 
 Lords or 
 Judicial 
 Committee. 
 
 19. The said Court of Appeal shall have jurisdiction 
 and power to hear and determine appeals from any 
 judgment or order, save as hereinafter mentioned, of Her 
 Majesty's High Court of Justice, or of any judges or 
 judge thereof, subject to the provisions of this Act, and 
 to such Eules and Orders of Court for regulating the terms 
 and conditions on -which such appeals shall he allowed;, 
 as may he made pursuant to this Act. 
 
 For all the purposes of and incidental to the hearing 
 and determination of any appeal within its jurisdiction, 
 and the amendment, execution, and enforcement of any 
 judgment or order made on any such appeal, and for the 
 purpose of every other authority expressly given to the 
 Court of Appeal by this Act, the said Court of Appeal 
 shall have all the power, authority, and jurisdiction by 
 this Act vested in the High Court of Justice. 
 
 By s. 45 (post, p. 81) the judgment of a Divisional Court upon 
 an appeal from an inferior Court is to be final, unless leave to 
 appeal be given. By sec. 47 {post, p. S3) the judgment of the Court 
 for Crown Cases Reserved is final. By s. 49 no appeal lies 
 except with leave, from any judgment or order made by consent, 
 or as to costs only which by law are left to the discretion of t he 
 Court. By s. 50 an appeal does not lie direct to the Court of 
 Appeal from an order made at Chambers without leave. As bo 
 appeal upon judgments or orders in interpleader, see note to Order I., 
 Rule 2, post, pp. 152, 158. 
 
 20. Xa error or appeal shall be brought from any 
 judgment or order of the High Court of Justice, or of the 
 Court of Appeal, nor from any judgment or order, subse- 
 quent to the commencement of this Act, of the Court of 
 Chancery of the County Palatine of Lancaster, to the 
 House of Lords or to the Judicial Committee of Her 
 Majesty's Privy Council ; but nothing in this Act shall 
 prejudice any right existing at the commencement of this 
 Act to prosecute any pending writ of error or appeal, or 
 to bring error or appeal to the House of Lords or to 
 Her Majesty in Council, or to the Judicial Committee of 
 the Prrry Council, from any prior judgment or order of 
 any Court whose jurisdiction is hereby transferred to the 
 High Court of Justice or to the Court of Appeal. 
 
 By s. 2 of the Act of 1875, post, p. 126, the operation of this 
 sci tii m as well as of ss. 21 and 55 is postponed to the 1st Nov., 
 1876. And until that time, "an appeal may be brought to the 
 House of Lords from any judgment or order of the Court of
 
 PART II. JURISDICTION AND LAW. f).> 
 
 Appeal .... in any case in which 'any appeal or error might now g xx ; 
 be brought to the House of Lords or to Her Majesty in Council from — 
 
 a similar judgment, decree, or order of any Court or Judge whose 
 jurisdiction is by the principal Act transferred to the High Court of 
 Justice or the Court of Appeal, or in any case in which leave to 
 appeal shall be given by the Court of Appeal." 
 
 21. It shall be lawful for Her Majesty, if she shall Power to; 
 think lit, at any time, hereafter, by Order in Council junction 
 to direct that all appeals and petitions whatsover to Her ° f J ud j. cial 
 Majesty in Council which, according to the laws now in 
 force, ought to be heard by or before the Judicial Com- 
 mittee of Her Majesty's Privy Council, shall from and after 
 a time to be fixed by such order, be referred for hearing by Order in 
 to and be heard by Her Majesty's Court of Appeal ; Council. 
 and from and after the time fixed by such order, 
 all such appeals and petitions shall be referred for 
 hearing to and be heard by the said Court of Appeal 
 accordingly, and shall not be heard by the said Judicial 
 Committee ; and for all the purposes of and incidental to 
 the hearing of such appeals or petitions, and the reports 
 to be made to Her Majesty thereon, and all orders thereon 
 to be afterwards made by Her Majesty in Council, and 
 also for all purposes of and incidental to the enforcement 
 of any such Orders as may be made by the said Court of 
 Appeal or by Her Majesty, pursuant to this section (but 
 not for any other purpose), all the power, authority, and 
 jurisdiction now by law vested in the said Judicial Com- 
 mittee shall be transferred to and vested in the said Court 
 of Appeal. 
 
 The Court of Appeal, when hearing any appeals in 
 Ecclesiastical Causes which may be referred to it in 
 manner aforesaid, shall be constituted of such and so 
 many of the judges thereof, and shall be assisted by 
 such Assessors, being Archbishops or Bishops of the 
 Church of England, as Her Majesty, by any General 
 Rides made with the advice of the judges of the said 
 Court, or any five of them (of whom the Lord Chan- 
 cellor shall be one), and of the Archbishops and Bishops 
 who are members of Her Majesty's Privy Council, or any 
 two of them (and which General Rules shall be made by 
 Order in Council), may think fit to direct: Provided 
 that such Rules shall be laid before each House of Par- 
 liament within forty days of the making of the same, 
 it' Parliament be then sitting, or if not, then within forty 
 days of the commencement of the then next ensuing 
 3ession ; and if an address is presented to Her Majesty 
 by either House of Parliament within the next subse-
 
 56 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. xxii. quent forty days on which the said House shall have 
 sat, praying that any such Rules may be annulled, Her 
 Majesty may thereupon by Order in Council annul the 
 same ; and the Rules so annulled shall thenceforth become 
 void and of no effect, but without prejudice to the validity 
 of any proceedings which may in the meantime have 
 been taken under the same. 
 See note to last section. 
 
 Transfer of 22. From and after the commencement of this Act 
 busing ^ ne several jurisdictions which by this Act are trans- 
 ferred to and vested in the said High Court of Justice 
 and the said Court of Appeal respectively shall cease to 
 be exercised, except by the said High Court of Justice 
 and the said Court of Appeal respectively, as provided 
 by this Act ; and no further or other appointment of 
 any judge to any Court whose jurisdiction is so transfer! 
 shall be made except as provided by this Act : Provided,. 
 that in all causes, matters, and proceedings whatsoever 
 which shall have been fully heard, and in which judgment 
 shall not have been given, or having been given shall 
 not have been signed, drawn up, passed, entered, or 
 otherwise perfected at the time appointed for the com- 
 mencement of this Act, such judgment, decree, rule, or 
 order may be given or made, signed, drawn up, passed,, 
 entered, or perfected respectively, after the commencement 
 of this Act, in the name of the same Court, and by the 
 same judges and officers, and generally in the same manner, 
 in all respects as if this Act had not passed ; and the 
 same shall take effect, to all intents and purposes, as if 
 the same had been duly perfected before the commence- 
 ment of this Act ; and every judgment, decree, rule, or 
 order of any Court whose jurisdiction is hereby transferred 
 to the said High Court of Justice or the said Court of 
 Appeal, which shall have been duly perfected at any time 
 before the commencement of this Act, may be executed,. 
 /Cu?2>. Uxi~S~~ enforced , and, if necessary, amended or discharged by the 
 
 said High Court of Justice and the said C ourt of Appea l /£'. 
 respectively, in the same manner as if it had been a 
 judgment , decree, rule, or order of the said High Cou rt 
 or of the said Court of Appeal; and all causes, matters, 
 and proceedings whatsoever, whether Civil or Criminal, 
 which shall he pending in any of the Courts whose 
 jurisdiction is so transferred as aforesaid at the commence- 
 ment of this Act, shall be continued and concluded, as 
 follows (that is to say), in the case of proceedings hi 
 error or on appeal, or of proceedings before the Court
 
 TART II. JURISDICTION AND LAW. 07 
 
 of Appeal in Chancery, in and before Her Majesty's s. xxiii. 
 Court of Appeal ; and, as to all other proceedings, in 
 and before Her Majesty's High Court of Justice. The 
 said Courts respectively shall have the same jurisdiction 
 in relation to all such causes, matters, and proceedings 
 as if the same had been commenced in the said High 
 Court of Justice, and continued therein (or in the said 
 Court of Appeal, as the case may be) down to the point 
 at which the transfer takes place ; and, so far as relates to 
 the form and manner of procedure, such causes, matters, 
 and proceedings, or any of them, may be continued and 
 concluded, in and before the said Courts respectively, 
 either in the same or the like manner as they would have 
 been continued and concluded in the respective Courts 
 from which they shall have been transferred as aforesaid, 
 or according to the ordinary course of the said High 
 Court of Justice and the said Court of Appeal respectively 
 (so far as the same may be applicable thereto), as the said 
 Courts respectively may think lit to direct. 
 
 '23. The jurisdiction by this Act transferred to the said Rules as to 
 High Court of Justice and the said Court of Appeal jurisdiction. 
 respectively shall be exercised (so far as regards procedure 
 and practice) in the manner provided by this Act, or by 
 such Rules and Orders of Court as may be made pursuant 
 to this Act ; and where no special provision is contained 
 in this Act or in any such Rules or Orders of Court with 
 reference thereto, it shall be exercised as nearly as may be 
 in the same manner as the same might have been , 
 exercised by the respective Courts from which such juris- 
 diction shall have been transferred, or_ by any of such 
 Courts. 
 
 As to the power of making Rules and the purposes for which they 
 may be made, see ss. 68 and 74, post, pp. 94, 97; and s. 17 of the 
 Act of 1875, post, p. 135. 
 
 For the Rules now made see Schedule 1 to the last-mentioned Act, 
 post, p. 151, and Additional Rules, post, p. 391. 
 
 24. In every civil cause or matter commenced in the Law and 
 High Court of Justice law and equity shall be adminis- concurrently 
 tered by the High Court of Justice and the Court of adminis - 
 Appeal respectively according to the Rules following : 
 
 (1.) If any plaintiff oi petitioner claims to be entitled 
 to any equitable (.'state or right, or to relief upon 
 any equitable ground against any deed, instrument, 
 or contract, or against any right, title, or claim 
 whatsoever asserted by any defendant or respon- 
 
 d 5
 
 58 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. xxiv. dent ill such cause or matter, or to any relief 
 
 founded upon a legal right, which heretofore could 
 only have heen given by a Court of Equity, the 
 said Courts respectively, and every Judge thereof, 
 shall give to such plaintiff or petitioner such 
 and the same relief as ought to have been given 
 by the Court of Chancery in a suit or proceeding 
 for the same or the like purpose properly instituted 
 before the passing of this Act. 
 
 This and the next section undertake to deal with the long- 
 standing anomaly, to which so many palliations have from time to 
 time been applied, but which has never been removed — by which 
 different Courts recognize different rights and duties, apply different 
 remedies to the same case, and in some cases even enforce rules 
 of law actually in conflict with one another. The removal of the 
 last-mentioned defect, actual conflict of law, is provided for by s. 25. 
 The rest of the matter is dealt with in the present section. 
 
 The provisions of this section may be shortly summarised thus : — 
 
 The plaintiff may assert an equitable claim in any Court 
 (subs. 1). 
 
 The plaintiff may obtain an equitable remedy in any Court 
 {ibid). 
 
 The defendant may raise any equitable answer or defence in 
 any Court ; that is to say, anything which would hitherto 
 have been good by way of answer, if the suit had been brought 
 in Chancery, (subs. 2,) or would have afforded ground for an 
 injunction if the action had been brought at law (subs. 5). 
 
 The defendant may assert, by way of counter claim against 
 the plaintiff, any claim, legal or equitable, which he might 
 have raised by a cross suit at law, or in equity (subs. 3). 
 
 The defendant may obtain any relief relating to or connected 
 with the original subject of the action against any other 
 person, whether already a party or not (ibid). 
 
 All Courts are to recognize equitable rights incidentally appear- 
 ing (subs. A). 
 
 No cause is t» be restrained by injunction ; but what would 
 have been ground for injunction is to be raised by way of 
 defence, or upon an application to stay proceedings (subs. 5). 
 
 Subject to these provisions common law rights and duties are to 
 be recognized (subs. 6). 
 
 Every Court is to apply all appropriate remedies, and dispose 
 of all matters in controversy (subs. 7 J. 
 
 (2.) If an} - defendant claims to be entitled to any equitable 
 estate or right, or to relief upon any equitable 
 ground against any deed, instrument, or contract, 
 or against any right, title, or claim asserted by any 
 plaintiff or petitioner in such cause or matter, or 
 alleges any ground of equitable defence to any 
 claim of the plaintiff or petitioner in such cause 
 or matter, the said Courts respectively, and every 
 Judge thereof, shall give to every equitable estate, 
 right, or ground of relief so claimed, and to every
 
 PART II. JURISDICTION AND LAW. 59 
 
 equitable defence so alleged, such and the same S. xxlv. 
 effect, by way of defence against the claim of such /<yp"2) /S&cf*- 
 plaintiff or petitioner, as the Court of Chancery 
 ought to have given if the same or the like 
 matters had been relied on by way of defence in 
 any suit or proceeding instituted in that Court 
 for the same or the like purpose before the 
 passing of this Act. 
 
 (3.) The said Courts respectively, and every Judge 
 thereof, shall also have power to grant to any 
 defendant in respect of any equitable estate or 
 right, or other matter of equity, and also in 
 respect of any legal estate, right, or title claimed 
 or asserted by him, all such relief against any 
 plaintiff or petitioner as such defendant shall 
 have properly claimed by his pleading, and as 
 the said Courts respectively, or any Judge thereof, 
 might have granted in any suit instituted for that 
 purpose by the same defendant against the same 
 plaintiff or petitioner ; and also all such relief 
 relating to or connected w T ith the original subject of 
 the cause or matter, and in like manner claimed 2jC4f2, 22.3 
 
 against any other person , whether already a party 4 4Q 
 to the same cause or matter or not , who shall hav e 
 -'■'-., been duly serv ed with notice iii writing of such 
 
 claim pursuant to any Rule of Court or anyTHxTer 1/ 
 of the Court, as might properly have been granted 
 against such person if he had been made a defen- 
 dant to a cause duly instituted by the same defen- 
 dant for the like purpose ; and every person served 
 with any such no tice sh all thenceforth be deeme d 
 a party to suc h cause or matter, with the same 
 rights in respect of his defence against such claim, 
 as if he had been duly sued in the ordinary way by 
 such defendant. 
 As to counter claims see Order XIX., Rule 3, post, p. 205, and 
 notes thereto ; Order XXIL, Rule 10, post, p. 220. 
 
 (4.) The said Courts respectively, and every Judge 
 thereof, shall recognize and take notice of all 
 equitable estates, titles, and rights, and all equitable 
 duties and liabilities appearing incidentally in the 
 course of any cause or matter, in the same manner 
 in which the Court of Chancery would have 
 recognized and taken notice of the same in any 
 suit or proceeding duly instituted therein before 
 the passing of this Act.
 
 CO /,-fi d- SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 -otffcT&i* . . . 
 
 £A^ s. xxiv. (5.) No cause or proceeding at any time pending in 
 
 ■f £% C ^ e -^S n Court of Justice, or "before the Court 
 
 of Appeal, shall he restrained by prohibition or 
 injunction ; hut every matter of equity on which. 
 an injunction against the prosecution of any such 
 cause or proceeding might have been obtained, if 
 this Act had not passed, either unconditionally or 
 on any terms or conditions, may be relied on by way 
 of defence thereto : Provided always, that nothing 
 in this Act contained shall disable either of the 
 said Courts from directing a stay of proceedings in 
 any cause or matter pending before it if it shall 
 think fit ; and any person, whether a party or 
 not to any such cause or matter, who would 
 have been entitled, if this Act bad not passed, 
 to apply to any Court to restrain the prosecution 
 thereof, or who may be entitled to enforce, by 
 attachment or otherwise, any Judgment, Decree, 
 Rule, or Order, contrary to which all or any part 
 of the proceedings in such cause or matter may 
 ■2S3 have been taken, shall be at liberty to apply to 
 
 /C^.^./f-^f,^ ' the said Co urts respectively, by motion in a sum- 
 mary way, for a stay of proceedings in such cause 
 or matter, either generally, or so far as may be 
 necessary for the purposes of justice; and the 
 Court shall thereupon make such Order as shall be 
 just. ' 
 
 (6.) Subject to the aforesaid provisions for giving effect 
 to equitable rights and other matters of equity in 
 manner aforesaid, and to the other express pro- 
 visions of the Act, the said Courts respectively, and 
 every Judge thereof, shall recognize and give effect 
 to all legal claims and demands, and all estates, 
 titles, rights, duties, obligations, and liabilities 
 existing by the Common Law or by any custom, 
 or created by any Statute, in the same maimer as 
 the same would have been reccgnised and given 
 effect to if this Act had not passed by any of the 
 Courts whose jurisdiction is hereby transferred to 
 the said High Court of Justice. 
 
 (7.) The High Court of Justice and the Court of 
 Appeal respectively, in the exercise of the juris- 
 diction vested in them by this Act, in every cause 
 or matter pending before them respectively, shall 
 have power to grant, and shall grant, either absolutely 
 oronsuch reasonable terms and conditions as to them
 
 PART II. JURISDICTION AND LAW. ' 61 
 
 shall seem just, all such remedies whatsoever as any s. xxv. 
 of the parties thereto may appear to be entitled to in 
 respect of any and every legal or equitable claim 
 properly brought forward by them respectively in 
 such cause or matter ; so that, as far as possible, 
 all matters so in controversy between the said 
 parties respectively may be completely and finally 
 determined, and all multiplicity of legal proceed- 
 ings concerning anv of such matters avoided. 
 
 25. And whereas it is expedient to take occasion of the Rules of la; 
 
 upon — 
 points 
 
 union of the several Courts whose jurisdiction is hereby UF 
 
 transferred to the said High Court of Justice to amend 
 and declare the law to be hereafter administered i\\/&£.0. 
 England as to the matters next hereinafter mentioned : 
 Be it enacted as follows : 
 
 The present section undertakes to render uniform the rules of law Administra- 
 administered in the several divisions of the Court in the point as tIon of assets 
 to which' they at present conflict. The method which has been °S^° nt 
 adopted is to deal in the first ten sub-sections with specific cases in 
 which conflicting rules have hitherto existed, and to provide what 
 rule is to prevail for the future. The rule adopted is in general 
 that of the Court of Chancery. But, in sub-s. 1, the Bankruptcy 
 Rule, and in sub-s. 9, the Admiralty Rule, is adopted ; and in sub-s. 8, 
 one different in some respects from any hitherto in force. By 
 sub-s. 11, it is enacted generally that in codes not specifically pro- 
 vided for, the equitable rule is to prevail. 
 
 (1) In the administration by the Court of the assets of 
 any person who may die after the passing of this 
 Act, and whose estate may prove to be insufficient 
 for the payment in full of his debts and liabilities, 
 the same rides shall prevail and be observed as to 
 the respect ire r it pits of sen/fed and unsecured 
 creditors, and as to debts and liabilities proveable, 
 and as to the valuation of annuities and future or 
 contingent liabilities, respectively, as may be in 
 force for the time being under the law of bank- 
 ruptcy with respect to the estates of persons 
 adjudged bankrupt; mid. nil person* who in, any 
 such case would be entitled to prove for and receive 
 dividends out of the estate of any such deceased 
 person may come in under the decree or order for 
 the wliniuixt rttiinn of such estate and make such 
 claims against the same as they may respectively 
 be entitled to by virtue of this Act. 
 
 This sub-section is repealed by s. 10 of the Act of 1875, post, 
 p. 132. And the following provision is substituted : — 
 
 "Sub-section one of clause twenty-five of the principal Act is 
 hereby repealed, and instead thereof the following enactments
 
 >-2 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 
 Statutes of 
 Limitation 
 inapplicable 
 to express 
 trusts. 
 
 Equitable 
 wastes. 
 
 Merger. 
 
 Suits for 
 possession of 
 land by 
 mortgagors. 
 
 shall take effect : (that is to say) in the administration by the 
 Court of the assets of any person who may die after the commence- 
 ment of this Act, and whose estate may prove to be insufficient for 
 the payment in full of his debts and liabilities, and in the winding 
 up of any company under the Companies Acts, 1862 and 1867, 
 whose assets may prove to be insufficient for the payment of its 
 debts and liabilities and the costs of winding up, the same rules shall 
 prevail and be observed as to the respective rights of secured" and 
 unsecured creditors! and as to debts and liabilities provable,' and as 
 to the valuation or annuities and future and contingent liabilities 
 respectively,'; as may be in force for the time being under the Law 
 of Bankruptcy with respect to the estates of persons adjudged 
 bankrupt ; and all persons who in any such case would be entitled 
 to prove for and receive dividends out of the estate of any such 
 deceased person, or out of the assets of any such company, may 
 come in under the decree or order for the administration of such 
 estate, or under the winding up of such company, and make such 
 claims against the same as they may respectively be entitled to by 
 virtue of this Act." 
 
 In Chancery, in the administration of a debtor's estate, a secured 
 creditor has been allowed to prove for and receive dividends upon the 
 full amount of his claim, and afterwards to realise his security, 
 paying over any surplus beyond the amount of his debt. And 
 the same rule has prevailed in the winding up of companies. 
 In Bankruptcy, unless the secured creditor gives up his security, he 
 must have it valued or realised, and can only prove for the deficiency. 
 The latter ride will for the future prevail in administering the estate 
 of insolvent persons deceased and in winding up. The original 
 section did not include winding up. 
 
 (2.) No claim of a cestui T m trust against Iris trustee 
 for any property held on an express trust, or in 
 respect of any breach of such trust, shall be held 
 to be barred by any Statute of Limitations. 
 
 See 3 & 4 Will. IV., c. 27, s. 25 ; Pctre v. Petre 1 Drew. 393. 
 
 (3.) An estate for life without impeachment of waste 
 shall not confer or be deemed to have conferred 
 upon the tenant for life any legal right to commit 
 waste of the description known as equitable 
 waste, unless an intention to confer such right 
 shall expressly appear by the. instrument creating 
 such estate 
 
 (4.) There shall not, after the commencement of this 
 Act, be any merger by operation of law only of 
 any estate, the beneficial interest in which would 
 not be deemed to be merged or extinguished in 
 equity. 
 
 (5.) A mortgagor entitled for the time being to the 
 possession or receipt of the rents and profits of any 
 land as to which no notice of his intention to take
 
 PART II. JURISDICTION AXD LAW. Go 
 
 possession or to enter into the receipt of the rents s. x.w. 
 and profits thereof shall have been given by the ~ 
 mortgagee, may sue for such possession, or for the 
 recovery of such rents or profits, or to prevent or 
 recover damages in respect of any trespass or other 
 wrong relative thereto, in his own name only, 
 unless the cause of action arises upon a lease or 
 other contract made by him jointly with any other 
 person. 
 
 (G.) Any absolute assignment, by writing under the Assignment 
 hand of the assignor ( not purporting to be by way chosesin 
 of charge only ), of any debt or other legal chose in actl0n - 
 action, of which express notice in writing shall 
 have been given to the debtor, trustee, or other 
 person from whom the assignor would have been 
 entitled to receive or claim such debt or chose in 
 action, shall be, and be deemed to have been 
 effectual in law (subject to all equities which would 
 have been entitled to priority over the right of the 
 assignee if this Act had not passed), to pass and 
 transfer the legal right to such debt or chose in 
 action from the date of such notice, and all legal 
 and other remedies for the same, and the power to 
 give a good discharge for the same, without the 
 concurrence of the assignor : Provided always, that 
 if the debtor, trustee, or other person liable in 
 respect of such debt or chose in action shall have 
 had notice that such assignment is disputed by the 
 assignor or any one claiming under him, or of any 
 other opposing or conflicting claims to such debt or 
 chose in action, he shall be entitled, if he think fit, 
 to call upon the several persons making claim 
 thereto to interplead concerning the same, or lie 
 may, if he think fit, pay the same into the High 
 Court of Justice under and in conformity with the 
 ] i I'm visions of the Acts for the relief of trustees. 
 
 As to the practice in interpleader, see Order I., Ride 2, post, 
 p. 152, and note thereto. OtU <^» &■/.£.&.. Q ■$-?/£ 
 
 (7.) Stipulations in contracts, as to time or otherwise, stipulations. 
 which would not before the passing of this Act essence of 
 have been deemed to be or to have become of the c ^/ a ^v" 
 essence of such contracts in a Court of Equity, ^^^ 5 7^ 
 shall receive in all Courts the same construction 
 and effect as they would have heretofore received 
 , 1 1 quity.
 
 G4 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. xxv. By s. 10, i>ost, p. 132 of the Act of 1875, the commencement 
 
 — of the Act is substituted for the passing as the governing date in 
 
 this sub-section. 
 
 As to the equitable construction of stipulations in contracts as to 
 time : See Tilley v. Thomas, Law Hep. 3 Ch. 61. 
 
 an J d U re- ti ° ns (^) - ^ nmn damus or an injunction may be granted or a 
 
 ceivers. /CS.'2>./4'?0 receiver appointed by an interlocutory Order of ihe/SZ.A 
 
 ZC4.. \&.//f~~ Court in all cases in which it shall appear to the ^y^ 
 
 /hdj. 3a <J Court to be just or convenient that such Order 
 
 should be made ; and any such Order may be made 
 
 • either unconditionally or upon such terms and 
 
 conditions as the Court shall think just ; and if an 
 
 injunction is asked, either before, or at, or after the 
 
 hearing of any cause or matter, to prevent any 
 
 threatened or apprehended waste or trespass, such 
 
 injunction may be granted, if the Court shall think 
 
 fit, whether the person against whom such injunction 
 
 is sought is or is not in possession under any claim 
 
 of title or otherwise, or (if out of possession), does 
 
 or does not claim a right to do the act sought to be 
 
 restrained under any colour of title ; and whether 
 
 the estates claimed by both or by either of the 
 
 parties are legal or equitable. 
 
 This section empowers the Court (1) to grant a mandamus; (2) 
 an injunction ; (3) to appoint a receiver. 
 
 1. — Mandamus. 
 
 The power of the Court of Queen's Bench, by the prerogative • 
 writ of mandamus, at the instance of persons interested, to enforce 
 legal rights of a public nature, where no other remedy exists, has 
 been long exercised. It would be out of place to discuss at length 
 here the principles on which that Court acts. See Tapping on 
 Mandamus. 
 
 By the Common Law Procedure Act, 1854, ss. 68 to 74, all the 
 Common Law Courts were given a limited power of enforcing by 
 mandamus the specific performance of legal duties. Under those 
 sections the plaintiff in any action, other than replevin or ejectment, 
 was entitled to indorse on his writ a claim for, and in his declara- 
 tion to claim, and the Court might grant a writ of mandamus 
 commanding the defendant to fulfill any duty in the fulfilment of 
 which the plaintiff was personally interested, and by the non- 
 performance of which he showed in his declaration that he sus- 
 tained or might sustain damage. It has been decided that the 
 power so given is only in the case of duties of a public nature, not 
 in the case of those arising simply by contract ; Benson v. Paull, 
 6 E. & B. 273 ; "Norris v. Irish Land Co., 8 E. & B. 512. By the 
 express terms of the Act it must be one in which the applicant is 
 interested ; and the remedy by mandamus is only available where 
 there is no other effectual remedy ; Bush v. Bearan, 1 H. & C. 500. 
 "Under this Act a mandamus has been granted to improvement 
 commissioners, directing them to levy a rate to satisfy the claim of
 
 PART II. JURISDICTION AND LAW. 65 
 
 the plaintiff, a creditor ; Ward v. Lowndes, 1 E. & E. 940, 956 ; to 5 xxv 
 apply their funds in payment of debentures ; Webb v. Commissioners — 
 
 of Heme Bay, Law Rep. 5 Q. B. 642 ; to a railway company, com- 
 pelling them to give a notice to treat and proceed with the purchase of 
 lands as to which they have given notice under their Act of an 
 intention to take ; Morgan v. Metropolitan Railway Co., Law Reji. 
 3 C. P. 553, 4 C. P. 97 ; see also Tyson v. M. of London, Law Rep. 
 7 C. P. 18 ; and to issue a precept for the assessment of com- 
 pensation after a notice to treat has been given ; Fotherby v. Metro- 
 politan Railway Co., Law Rep. 2 C. P. 188 ; Guest v. Poole and 
 Bournemouth Railway Co., Law Rep. 5 C. P. 553. See as to the 
 discretion of the Court, Nieholl v. Allen, 1 B. & S. 916, 934. 
 
 The Court of Chancery has not used the process of mandamus, eo • 
 nomine. But in compelling the specific performance of contracts 
 it has in substance used exactly the same mode of enforcing one 
 class of rights which the Common Law Courts by mandamus have 
 used in enforcing another. 
 
 The words of the present section are very wide : " A mandamus 
 may be granted in all cases in which it shall appear to the Court to be 
 just or convenient that such ajt order should be made." It may be said • 
 on the one hand, that these words cannot be intended merely to give 
 to all divisions such powers for the specific enforcement of rights as 
 have hitherto been exercised by any of the Coixrts. For this has been 
 already fully provided for by s. 16 ands. 24,sub-s.7,«nic, pp. 51 and 60. 
 And, moreover, the present section purports to deal not merely with 
 procedure but with rules of law. On the other hand, it can hardly 
 be supposed that the legislature intended by these few words to 
 give power to enforce specifically all rights and duties whatever 
 without regard to the doctrines previously well settled. Probably 
 the true view is that mandamus is to be understood strictly in the 
 sense in which it has been used in the Common Law Courts ; that 
 the subject matters, the classes of rights, to which it is applicable 
 are unchanged ; and that the effect of the new provision is, first, to 
 give to the Court a very wide discretion as to the issue of the 
 writ ; and, secondly, to allow it to be issued upon an interlocutory 
 application, instead of its necessarily being claimed upon the writ 
 and by pleadings, without, in fact, an action of mandamus being- 
 brought within the meaning of the C. L. P. Act. See, however, as 
 to indorsing the claim on the writ Order II., Ride l,post p. 158, and 
 note thereto. But it would be unsafe to speak with confidence until the 
 words have received a judicial interpretation. 
 
 2.— Injunction. 
 
 The power of the Common Law Courts to grant injunctions in 
 ordinary actions has hitherto depended upon ss. 79 to 82 of the 
 C L. P. Act, 1854. Under that Act the plaintiff could only 
 ask for an injunction when a breach of contract or other injury had 
 actually been committed, for he must (s. 79) be entitled to maintain 
 and have brought an action. As to when such a writ was granted, 
 see Day's C. L. P. Act, pp. 325, et sea., 4th. edit. Power to grant 
 injunctions in patent cases was given by 15 & 16 Vict. c. 83, s. 42 ; 
 but under that section too the injunction could only'be issued when 
 an action was pending, and therefore after a cause of action had 
 arisen. And by 25 & 26 Vict. c. 88, s. 21, a like power was given 
 as to trade marks. 
 
 The Court of Chancery has always, in the exercise of its tradi- 
 tional jurisdiction, granted injunctions to restrain the commission of
 
 66 SUPREME COURT OP JUDICATURE ACT, 1873. 
 
 S. xxv. threatened wrongs or the continuance or repetition of those already 
 — committed. But with regard to injunctions to restrain trepasses, 
 
 somewhat refined distinctions hare been drawn as to the power to in- 
 terfere — first, according as the person sought to be restrained is in 
 possession or not ; and secondly, if out of possession, according as he 
 is a mere trespasser or acts under colour of right. These distinctions 
 have led to some uncertainty and inconvenience. See Lowndes v. 
 Bettle, 33 L. J. Ch. 451, 10, Jur. (N. S.) 22o ; Stanford v. Hurlstone, 
 Law Eep. 9 Ch. 116. 
 
 These distinctions the above clause does away with ; for it autho- 
 rizes the Court to grant an injunction to prevent any threatened or 
 apprehended waste or trespass, whether the 'person against whom 
 such injunction is sought is or is not in possession, under any claim of 
 title or other/rise, or {if out of possession) does or does not claim a right 
 to do the act sought to be restrained under any colour of title. As to 
 indorsing the claim on the writ, see Order II. Rule 1, post p. 158, 
 and note thereto. 
 
 3. — Receivers. 
 
 The Common Law Courts have hitherto had no power to appoint 
 receivers. 
 
 In Chancery the appointment of a receiver has been a remedy in 
 familiar use. The Court, however, woidd not appoint a receiver at 
 the instance of a mortgagee having the legal estate, or other person 
 able to obtain protection at law: Berkley v. Sewett, J. & W. 647 ; 
 Buxton v. Monkhouse, G-, Coop. 41 ; Kelsey v. Kelsey, Law Re ; '. 1", 
 /r< t Eq. 495. The present sub-section empowers the Court to appoint a 
 
 receiver in all cases in which it shall appear just and convenient. If 
 these words receive a construction as wide as they are certainly 
 capable of, a very material change has been effected ; for a legal 
 mortgagee may obtain the appointment of receiver instead of taking 
 the risk of entering on- the property. But it is impossible to say 
 with confidence how the words may be construed. 
 
 For rales as to the proceedings to obtain the relief authorized 
 by this sub-section, and for provisions as to other protective orders 
 having an analogous object, see Order LIL, post, p. 292, and note 
 thereto. As to indorsing the claim on the writ, see Order II., Ride 1. 
 post, p. 158, and note thereto. 
 
 Damages by (<)_) j_ n anv cause or proceeding for damages arising 
 sea out of a collision between two ships, if both ships 
 
 shall be found to have been in fault, the rules 
 hitherto in force in the Court of Admiralty, so 
 far as they have been at variance with the rules in 
 force in the Courts of Common Law, shall pre- 
 vail. 
 
 The common law doctrine has been shortly this : — The man who 
 seeks damages against another for negligence must show three things : 
 first, the negligence; secondly, the damage sustained; thirdly, that 
 the negHgence caused the damage. If he proves the negligence and 
 the damage, but it turns out that he has himself been guilty of negli- 
 gence of such a kind, that but for it the damage would not have 
 followed from the negligence of the defendant, he has failed to prove 
 his third proposition. He is the author of his own wrong, and must 
 bear the consequences. See per Parke B., in Bridge v. Gd. Junction 
 Ry. Co., 3 M. & W., 244, 248. 
 
 /
 
 PARI' II. JURISDICTION AND LAV,". G7 
 
 In the Admiralty Court the rule has been that where both g. xxv . 
 parties are to. blame they must share the loss equally, so that in — 
 
 such a case the plaintiff recovers half his damages. See cases 
 collected in Williams and Bruce Admiralty Practice, p. 72. 
 
 It will be observed that it is only in case of collision between ships 
 that the common law rule is changed. In all other cases it remains 
 unaffected. 
 
 (10.) In questions relating to tlie custody and educa- 
 tion of infants, the rules of Equity shall prevail. 
 
 The common law rule upon this subject is stated as follows in Rc y 4U*f / 1^ £ ~^ f1 ' 
 A n '/revs, Law Rep., 8 Q. B., at p. 158 : — " It appears to have been «^ « 7) "7^*» 
 the invariable practice of the Common Law ( lourt, on an application 
 for a habeas corpus to bring up the body of the child obtained from 
 the father (and the case would be the same as to a testamentary 
 guardian), to enforce the father's right to the custody, even against 
 the mother, unless the child lie of an age to judge for himself, or there 
 be an apprehension of cruelty from the father, or contamination, in 
 consequence of his immorality or gross profligacy. If the infant be 
 of an age to elect for himself, the Court will merely interfere so far 
 as to get it free from illegal restraint, without handing it over to 
 anybody. This was the course adopted in Rex v. Delaval (3 Burr. 
 1435), in the case of a girl eighteen years of age, who was delivered 
 from a custody considered illegal, and left at liberty to go where she 
 pleased. But, in the absence of any right of choice the Court goes 
 further, and transfers the infant to the proper legal custody. The 
 right to such an election, it has now been clearly decided, depends 
 upon age alone, and not on mental capacity ; see Rer/. v. Clarke, 7 
 E. & B. 186 ; 26 L. J. (Q. B.), 169 ; and it may be taken as settled 
 that no such choice can be made, at all events by a female infant, 
 under the age of sixteen years." 
 
 The Court of Chancery, whenever there has been any trust pro- 
 perty of which it would undertake the administration, and so make 
 the infant a ward of court, has taken a less rigid view of the rights 
 of the father or guardian, and looked more to the interest of the 
 infant. Either father or guardian may lose his right to the custody 
 of the child, not only by immorality of a nature likely to contami- 
 nate the child, or ill usage ; but also by allowing the child to be 
 brought up in a religion other than his own, or under the control 
 and influence of persons other than himself, for so long a time and 
 under such circumstances, that to allow him to reclaim the control of 
 the child and the direction of its education, would be detrimental to 
 its interest ; Lyons v. Blenhin, Jac. 245 ; Hill v. Hill, 10 W, R. 
 400 ; Andrews v. Salt, Law Rep., 8 Ch. 622. After the decease of 
 the father, the general rule is that the Court or guardian must have 
 regard to the religion and the wishes of the father in bringing up 
 the child. But under special circumstances the Court of Chancery 
 has, on like grounds, disregarded the express or presumed desire 
 of the deceased father with regard to the education of his child. 
 Stourton v. Stourton, 8 D. M. & G. 760. 
 
 (11.) Generally in all matters not hereinbefore particu- Cases of 
 lai'lv mentioned, in which there is any conflict or enumerated 
 variance between the rules of Equity and the rules 
 of the Common Law with reference to the same 
 matter, the rules of Equity shall prevail.
 
 GS SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S '- Vi ' PAETIII. 
 
 SlTTIKGS AND DISTRIBUTION OF BUSINESS. 
 
 Abolition of 2G. The Division of the legal year into terms shall be 
 abolished so far as relates to the administration of justice ; 
 and there shall no longer be terms applicable to any 
 sitting or business of the High Court of Justice, or of the 
 Court of Appeal, or of any commissioners to whom any 
 jurisdiction may be assigned under this Act ; but in 
 all other cases in which, under the law now existing, the 
 terms into which the legal year is divided are used as a 
 measure for determining the time at or within which any 
 act is required to be done, the same may continue to be 
 referred to for the same or the like purpose, unless and 
 until provision is otherwise made by any lawful authority. 
 Subject to rules of court, the High Court of Justice and 
 the Court of Appeal, and the judges thereof respectively, 
 or any such commissioners as aforesaid, shall have power 
 to sit and act, at any time, and at any place, for the trans- 
 action of any part of the business of such courts respec- 
 tively, or of such judges or commissioners, or for the 
 discharge of any duty which by any Act of Parliament, or 
 otherwise, is required to be discharged during or after 
 term. 
 
 For the Rules as to the sitting of the court, see Order LXL, 
 post, p. 808. 
 
 As to jurisdiction on circuit, see ss. 29 and 37, post, pp. 69, 77, and 
 notes thereto. 
 
 Vacations. 27. Her Majesty in Council may from time to time, 
 
 upon any report or recommendation of the judges by 
 whose advice Her Majesty is hereinafter authorized to 
 make rules before the commencement of this Act, and 
 after the commencement of this Act upon any report or 
 recommendation of the Councd of Judges of the Supreme 
 ( !ourt hereinafter mentioned, with the consent of the Lord 
 Chancellor, make, revoke, or modify, orders regulating the 
 vacations to be observed by the High Court of Justice and 
 the High Court of Appeal, and in the offices of the said 
 Courts respectively ; and any Order in Council made 
 pursuant to this section shall, so long as it continues in 
 force, be of the same effect as if it Avere contained in this 
 Act ; and rules of court may be made for carrying the 
 same into effect in the same manner as if such Order in 
 Council were part of this Act. In the meantime, and 
 subject thereto, the said vacations shall be fixed in the
 
 uurt 
 on circuit. 
 
 PART III. SITTINGS AND DISTRIBUTION OF BUSINESS. 69 
 
 same manner, and by the same authority, as if this Act s. xxviH. 
 had not passed. This section shall come into operation 
 immediately upon the passing of this Act. 
 
 As to the power to make rules before the commencement of the 
 Act, see post, p. 135. As to Councils of Judges, see s. 75, post, p. 100. 
 
 By s. 17 of the Act of 1875, post, p. 138, the reference to Judges 
 in this section is to be deemed to be to the Judges mentioned in that 
 section. 
 
 As to Councils of Judges, see s. 75, post, p. 100. 
 
 As to vacations, See Order LXL, Rules 2 & 3, post, p. 308. 
 
 28. Provision shall be made by rules of court for the sittings in 
 hearing, in London or Middlesex, during vacation by va 
 Judges of the High Court of Justice and the Court of 
 Appeal respectively, of all such applications as may require 
 
 to be immediately or promptly heard. 
 See Order LXL, Rules 5 to 9, post, p. 311. 
 
 29. Her Majesty, by commission of assize or by any Jurisdiction 
 
 ,-U • • '+-U 1 -1 • / of Judges of 
 
 other commission, either generaL or special, may assign to High c 
 any Judge or Judges of the High Court of Justice or 
 other persons usually named in commissions of assize, the 
 duty of trying and determining within any place or district 
 specially fixed for that purpose by such commission, any 
 causes or matters, or any questions or issues of fact or of 
 law, or partly of fact and partly of law, in any cause or 
 matter depending in the said High Court, or the exercise 
 of any civil or criminal jurisdiction capable of being exer- 
 cised by the said High Court ; and any commission so 
 granted by Her Majesty shall be of the same validity as if 
 it were enacted in the body of this Act ; and any commis- 
 sioner or commissioners appointed in pursuance of this 
 section shall, when engaged in the exercise of any juris- 
 diction assigned to him or them in pursuance of this Act, 
 be deemed to constitute a Court of the said High Court of 
 Justice ; and, subject to any restrictions or conditions 
 imposed by rules of court and to the power of transfer, 
 any party to any cause or matter involving the trial of a 
 question or issue of fact, or partly of fact and partly of 
 law, may, with the leave of the judge or judges to Avhom 
 or to whose division the cause or matter is assigned, require 
 the question or issue to be tried and determined by a 
 commissioner or commissioners as aforesaid, or at sittings 
 to be held in Middlesex or Loudon, as hereinafter in this 
 Act mentioned, and such question or issue shall be tried 
 and determined accordingly. 
 
 A cause or matter not involving any question or issue 
 of fact may be tried and determined in like manner with 
 the consent of all the parties thereto.
 
 70 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. xx.x. By s. 26, ante. p. 68, subject to rules of Court, Commissioners of 
 
 — Assize may sit at any time or place. S. 37, post, p. 77, as modified 
 
 by s. 8 of the Act of 1875, determines what judges are to go circuit. 
 ! >y s. 93, post, p. Ill, the existing circuits are left unaffected for the 
 nt, so far as this Act is concerned. S. 23 of the Act of 1875, 
 gives power to the Queen in Council to alter the circuits of the 
 judges, and make the various changes necessary for that purpose. 
 
 A Commissioner of Assize, whether a judge of one of the 
 Supreme Courts or not, has hitherto been a mere commissioner to 
 try the issues of fact entered for trial, having power to try 
 those only, and various incidental powers as to amending, cer- 
 tifying, and otherwise, chiefly conferred upon him by statute. 
 Under this section every Commissioner of Assize constitutes a 
 Court, with all the powers, therefore, of a Court. With regard to 
 the powers and duties of the judge in dLqnosing of the case at the 
 trial, and with regard to trials generally, see s. 46, 'post, p. 82, and 
 note thereto, and Order XXXVI., Rule 22, post, p. 253, and note 
 thereto. 
 
 As to the right of any party to have issues of fact tried by a jury. 
 See Order XXXVI., Rule 3, post, p. 219. 
 
 As to the power of a judge to order a trial by a jury. See Ibid, 
 Rule 27, post, p. 256. 
 
 As to the power of a judge to send a question to the assizes for 
 trial. See Ibid. 
 
 As to sittings in London and Middlesex. See the next section. 
 
 tridnF \T 3"- Subject to rules of court, sittings for the trial by 
 in London jury of causes and questions or issues of fact shall be held 
 and Middle- j n ^jj,}, [[ ( . s ,, x an( j London, an d such hall, so far 
 
 as is reasonably practicable, and subject to vacations, be 
 held continuously throughout the year by as many judges 
 as the business to be disposed of may render necessary. 
 Any Judge of the High Court of Justice, sitting for the 
 trial of causes and issues in Middlesex or London, at any 
 place heretofore accustomed, or to be hereafter deter- 
 mined by rules of court, shall be deemed to constitute a 
 court of the said High Court of Justice. 
 
 As to the sittings and vacations, see Orders LXL, post, p. 308. 
 
 As to the provision that the judge is to constitute a court, see 
 note to the last section. 
 
 As to the power of a judge to send a question for trial to these 
 sittings, sue Order XXXVI. Rule 29, post, p. 25 i. 
 
 Divisions of 31. For the more convenient despatch of business in 
 Court of the said High Court of Justice (but not so as to prevent 
 justice. an y j u dge from sitting whenever required in any Divisional 
 ^ Court, or for any judge of a different division from his 
 
 own), there shall be in the said High Court five divisions 
 consisting of such number of judges respectively as here- 
 inafter mentioned. Such five divisions shall respectively 
 include, immediately on the commencement of this Act, 
 the several judges following : (that is to say) —
 
 PART III. SITTINGS AND DISTRIBUTION OF BUSINESS. 71 
 
 (1.) One division shall consist of the following judges ; s. xxxi. 
 (that is to say) — The Lord Chancellor, who shall 
 be President thereof, the Master of the Polls, and 
 the Vice-Chancellors of the Court of Chancer} 7 , or 
 such of them as shall not he appointed ordinary 
 Judges of the Court of Appeal : 
 
 (2.) One other division shall consist of the following 
 judges; (that is to say) — The Lord Chief Justice of 
 England, who shall bo President thereof, and such, 
 of the other Judges of the Court of Queen's Bench 
 as shall not he appointed ordinary Judges of the 
 Court of Appeal : 
 
 (3.) One other division shall consist of the following 
 judges; (that is to say) — The Lord Chief Justice of 
 the Common Pleas, avIio shall he President thereof, 
 and such of the other Judges of the Court of 
 Common Pleas as shall not he appointed ordinary 
 Judges of the Court of Appeal : 
 
 (4.) One other division shall consist of the following 
 judges; (that is to say) — The Lord Chief Baron of 
 the Exchecpier, who shall he President thereof, 
 and such of the other Barons of the Court of 
 Exchequer as shall not he appointed ordinary 
 Judges of the Court of Appeal : 
 
 (•>.) One other division shall consist of two judges who, 
 immediately on the commencement of this Act, 
 shall be the existing Judge of the Court of Probate 
 and of the Court for Divorce and Matrimonial Causes 
 and the existing Judge of the High Court of 
 Admiralty, unless either of them is appointed an 
 ordinary Judge of the Court of Appeal. The 
 existing Judge of the Court of Probate shall 
 (unless so appointed) lie the President of the said 
 division, and subject thereto the Senior Judge of 
 the said division, according to the order of prece- 
 dence under this Act, shall be President. 
 
 The said five divisions shall lie called respectively the 
 Chancery Division, the Queen's Bench Division, the 
 Common Pleas Division, the Exchequer Division, and the 
 Probate, Divorce, and Admiralty Division. 
 
 Any deficiency of the number of five judges for con- 
 stituting, in manner aforesaid, immediately on the com- 
 mencement of this Ad, any one or more of the Queen's 
 Bench, Common Pleas, and Exchequer Divisions, may be
 
 72 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. xxxi. supplied by the appointment, under Her Majesty's Eoyal 
 — Sign Manual, either before or after the time fixed for the 
 commencement of this Act, of one of the puisne justices or 
 junior barons of any superior Court of Common Law 
 from -which no judge may be so appointed as aforesaid to 
 the Court of Appeal, to be a judge of any division in 
 which such deficiency would otherwise exist. And any 
 deficiency of the number of three Vice-Chancellors, or of 
 the two Judges of the Probate and Admiralty Divisions, 
 at the time of the commencement of this Act, may be 
 supplied by the appointment of a new judge in his place, 
 in the same manner as if a vacancy in such office had 
 occurred after the commencement of this Act. 
 
 Any judge of any of the said divisions may be trans- 
 ferred by Her Majesty, under Her Eoyal Sign Manual, 
 from one to another of the said divisions. 
 
 Upon any vacancy happening among the judges of the 
 said High Court, the judge appointed to fill such vacancy 
 shall, subject to the provisions of this Act, and to any 
 rules of court which may be made pursuant thereto, become 
 a member of the same division to which the judge whose 
 place has become vacant belonged. 
 
 Power to 32. Her Majesty in Council may from time to time, 
 
 sions by'" upon any report or recommendation of the Council of 
 Order in Judges of the Supreme Court hereinafter mentioned, order 
 that any reduction or increase in the number of divisions 
 of the High Court of Justice, or in the number of the 
 Judges of the said High Court who may be attached to 
 any such division, may, pursuant to such report or recom- 
 mendation, be carried into effect ; and may give all such 
 further directions as may be necessary or proper for that 
 purpose ; and such order may provide for the abolition on 
 vacancy of the distinction of the offices of any of the fol- 
 lowing judges, namely, the Chief Justice of England, the 
 Master of the Eolls, the Chief Justice of the Common 
 Pleas, and the Chief Baron of the Exchequer, which may 
 be reduced, and of the salaries, pensions, and patronage 
 attached to such offices, from the offices of the other 
 Judges of the High Court of Justice, notwithstanding any- 
 thing in this Act relating to the continuance of such 
 offices, salaries, pensions, and patronage ; but no such 
 Order of Her Majesty in Council shall come into opera- 
 tion until the same shall have been laid before each House 
 of Parliament for thirty days on which that House shall 
 have sat, nor if, within such period of thirty days, an 
 address is presented to Her Majesty by either House of
 
 PART III. SITTINGS AND DISTRIBUTION OF BUSINESS. I ■ 
 
 Parliament, praying that the same may not come into s. xxxih. 
 operation. Any such order, in respect whereof no such 
 address shall have heen presented to Her Majesty, shall, 
 from and alter the expiration of such period of thirty days, 
 he of the same force and effect as if it had been herein 
 expressly enacted ; provided always, that the total number 
 of the Judges of the Supreme Court shall not be reduced 
 or increased by any such order. 
 
 As to Councils of Judges, see s. 75, post, p. 100. 
 
 33. All causes and matters which may be commenced Rules of 
 in, or which shall be transferred by this Act to, the High pi3ide°fbr 
 Court of Justice, shall be distributed among the several distribution 
 divisions and judges of the said High Court, in such 
 manner as may from time to time be determined by any 
 
 rules of court, or orders of transfer, to be made, under tin- 
 authority of this Act ; and in the meantime, and subject 
 thereto, all such causes and matters shall be assigned to 
 the said divisions respectively, in the manner hereinafter 
 provided. Every document by which any cause or matter 
 may be commenced in the said High Court shall be 
 marked with the name of the division, or with the name 
 of the judge, to which or to whom the same is assigned. 
 
 As to the distribution of business among the several divisions, 
 see ss. 34 and 35, post ; s. 11 of the Act of 1875, post, p. 132 and 
 Order V., Rule 4, post, p. 170, and note thereto. 
 
 With respect to the transfer of actions or questions, see ss. 35 
 and 36 ; s. 11, sub-s. 2 of the Act of 1875, post, p. 133 ; and 
 Order LI., Rules 1, 2, 3, post, p. 290, and note thereto. 
 
 As to marking with the name of the division, see s. 35, and 
 Order V., Rule 9, p>ost, p. 171. 
 
 And as to marking with the name of a judge in the case of actions 
 in the Chancery Division, see s. 42, post, p. 80. 
 
 34. Then; shall be assigned (subject as aforesaid) to the Assignment 
 Chancery Division of the said court : — of certain 
 
 " business to 
 
 particular 
 
 (1.) All causes and matters pending in the Court of ^Y is h ion . s ° r 
 Chancery at the commencement of this Act : subject to 
 
 rules. 
 
 (2.) All causes and matters to be commenced after the 
 commencement of this Act, under any Act of 
 Parliament, by which exclusive jurisdiction in 
 respect to such causes or matters lias been given to 
 the Court of Chancery, or to any judges or judge 
 thereof respectively, except appeals from County 
 Courts :
 
 74 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. .\xxiv. (3.) All causes and matters for any of the following 
 purposes : 
 The administration of the estates of deceased 
 
 persons ; 
 The dissolution of partnerships or the taking of 
 
 partnership or other accounts ; 
 The redemption or foreclosure of mortgages ; 
 The raising of portions, or other charges on land ; 
 The sale and distribution of the proceeds of pro- 
 perty subject to any lien or charge ; 
 The execution of trusts, charitable or private ; 
 The rectification, or setting aside, or cancellation of 
 
 deeds or other written instruments ; 
 The specific performance of contracts between 
 
 vendors and purchasers of real estates, including 
 
 contracts for leases ; 
 The partition or sale of real estates ; 
 The wardship of infants and the care of infants' 
 
 estates. 
 
 There shall be assigned (subject as aforesaid) to the 
 Queen's Bench Division of the said Court : 
 
 (1.) All causes and matters, civil and criminal, pending 
 in the Court of Queen's Bench at the commence- 
 ment of this Act : 
 
 (2.) All causes and matters, civil and criminal, which 
 would have been within the exclusive cognizance 
 of the Court of Queen's Bench in the exercise 
 of its original jurisdiction, if this Act had not 
 
 passed. 
 
 There shall be assigned (subject as aforesaid) to the 
 Common Pleas Divisions of the said Court : 
 
 (1.) All causes and matters pending in the Court of 
 Common Pleas at Westminster, the Court of 
 Common Pleas at Lancaster, and the Court of 
 Pleas at Durham, respectively, at the commence- 
 ment of this Act : 
 
 (2.) All causes and matters which would have been 
 
 ■within the exclusive cognizance of the Court of 
 
 Common Pleas at Westminster, if this Act had 
 
 not passed. 
 
 There shall be assigned (subject as aforesaid) to the 
 
 Exchequer Division of the said Court : 
 
 (1.) All causes and matters pending in the Court of 
 Exchequer at the commencement of this Act ;
 
 PART III. SITTINGS .VXD DISTRIBUTION OP BUSINESS. 75 
 
 (2.) All causes and matters which would have been within s. xxxv. 
 the exclusive cognizance of the Court of Exchequer, 
 cither as a Court of Revenue or as a Common Law 
 Court, if this Act had not passed ; 
 
 (3.) All matters pending in the London Court of 
 Bankruptcy at the commencement of tin's Act ; 
 
 (4.) All matters to be commenced after the commencement 
 of this Act under any Act of Parliament by which 
 exclusive jurisdiction in respect to such matters 
 has been given to the London Court of Bankruptcy. 
 
 This is repealed so far as relates to bankruptcy by the Act of 1875, 
 jwst, p. 131. And it is provided instead, that a judge of the High 
 Court shall be Chief Judge in Bankruptcy. See s. 3, ante, p. 42, 
 and note thereto. 
 
 There shall be assigned (subject as aforesaid) to the 
 Probate, Divorce, and Admiralty Division of the said High 
 Court : 
 
 (1.) All causes and matters pending in the Court of 
 Probate, or in the Court for Divorce and Matri- 
 monial Causes, or in the High Court of Admiralty, 
 at the commencement of this Act ; 
 
 (2.) All causes and matters which would have been 
 within the exclusive cognizance of the Court of 
 Probate, or the Court for Divorce and Matrimonial 
 Causes, or of the High Court of Admiralty, if this 
 Act had not passed. 
 
 35. Subject to any rules of court, and to the 2)rovisioas Option for 
 hereinbefore contained, ami to the power of transfer, every (lubject'to' 1 
 person by whom any cause or matter may be commenced in rules) to 
 the said High Court of Justice shall assign such, cause or what divi- 
 matter to one of the divisions of the said ll'aih Court, not slon he W1 " 
 being the Probate, Divorce, and Admiralty Division thereof, 
 as he may think fit, by marking the document by which the 
 same is commenced, with the name of such division, ami 
 giving mil ire thereof to the proper officer of the Court ; 
 provided that oil interlocutory and other steps and pro- 
 ceedings in or before the said High Court, in any cause or 
 matter subsequent to the commencement thereof, shcdl be 
 taken (subject to any rules of court and to //,,■ power of 
 
 Iran-frr) J n the division of the said High Court to which 
 
 such cause or matter is for I he linn- twin;/ attached ,■ provided 
 also, Had if any plaintiff or petitioner shcdl at any time 
 assign his cause or mailer to any division of the said High 
 Court fa which, accordimj to the rules of court or the 
 provisions of this Act, the same ought not to l,e assigned, 
 
 e 2
 
 7G .SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 • s - xvv " the Coii rt, or any judge of such division, upon being 
 informed thereof, may, on a summary application, at any 
 stage of the cause or matter, direct tin- same to be trans- 
 ferred to the division of the said Court to which, according 
 to such rules or provisions, the same ought to have been 
 assigned, or he may, if he think if expedient so to do, 
 retain the same in the division in which the some was 
 commenced ; and all .--f <'/>■■< a. ml /ir<>ci <r<lin<js irhai-ioevi-r taken 
 by the plaintiff or petitioner , or by any other party in any 
 such cause or matter, and all orders made therein by the 
 Court or any judge thereof before any such transfer, shall 
 !>(■ valid and effectual to all intents and purposes in the 
 same manner as if the same respectively had been taken 
 and made in theproper division of the said Court to which 
 such cause or matter ought to have been assigned. 
 
 This section is repealed by the Act of 1875, post, pp. 132, 148, 
 and the following provisions are substituted : — 
 
 Provision as S. 11. " Subject to any Eules of Court and to the provisions of the 
 to option for p r i nc {p a i ^ c t an( j this Act and to the power of transfer, every 
 (subject to person by whom any cause or matter may be commenced in the 
 rules) to said High Court of Justice shall assign such cause or matter to one 
 choose in f ,f the divisions of the said High Court as he may think fit, by 
 Tion he"will uial *km& r the document by which the same is commenced with the 
 sue,— in sub- name of such division, and giving notice thereof to the proper officer 
 stitution for of the Court ; provided, that — 
 36 & 37 Vict. , 
 
 c 66., s. 35. (1.) "AIL interlocutory and other steps and proceedings in or 
 before the said High Court in any cause or matter subse- 
 quent to the commencement thereof, shall be taken (subject 
 to any rules of court and to the power of transfer) in the 
 division of the said High Court to whicb such cause or 
 matter is for the time being attached ; and 
 
 (2.) " If any plaintiff or petitioner shall at any time assign bis 
 cause or matter to any division of the said High Court to 
 which, according to the Rules of Court or the provisions of the 
 principal Act or this Act, the same ought not to be assigned, 
 the Court, or any Judge of such division, upon being informed 
 thereof, may on a summary application at any stage of the 
 cause or matter, direct the same to be transferred to the 
 division of the said Court to which, according to such rules or 
 provisions, the same ought to have been assigned, or he may, 
 if he think it expedient so to do, retain the same in the 
 division in which the same was commenced; and all steps 
 and proceedings whatsoever taken by the plaintiff or 
 petitioner or by any other party in any such cause or matter, 
 and all orders made therein by the Court or any Judge 
 thereof before any s\ich transfer shall be valid and effectual 
 to all intents and purposes in the same manner as if the 
 same respectively had been taken and made in the proper 
 division of the said Court to which such cause or matter 
 ought to have been assigned ; and 
 
 (3.) " Subject to Eules of Court, a person commencing any cause 
 or matter shall not assign the same to the- Probate, Divorce,
 
 PART III. SITTINGS AND DISTRIBUTION OF BUSINESS. / i 
 
 and Admiralty Division unless lie would have been entitled S. xxxvi. 
 
 to commence the same in the Court of Probate, or in the 
 
 Court for Divorce and Matrimonial Causes, or in the High 
 
 Court of Admiralty, if this Act had not passed." 
 Under the section in its original form a plaintiff subject to rules 
 of Court could not have commenced in the Probate, Divorce, and 
 Admiralty division any action except such as would have been 
 within the exclusive cognisance of the Probate, Divorce, or Ad- 
 miralty Court. See also Order V., Rule 4, post, p. 170. 
 
 As to transfer, see Order LL, Rules 1 to 3, post, p. 290. 
 As to marking the writ with the name of the division and notice to 
 the officer,see Order II.,Rule 1, and Order V.,Rule 9,^»os£,pp.l58,171. 
 
 36. Any cause or matter may at any time, and at any p w-erof 
 stage thereof, and either with or without application from transfer - 
 any of the parties thereto, be transferred by such autho- 
 rity and in such manner as rules of court may direct, 
 
 from one Division or Judge of the High Court of Jus- 
 tice to any other division or judge thereof, or may by the 
 like authority be retained in the division in which the same 
 was commenced, although such may not be the proper 
 division to Avhich the same cause or matter ought, in the 
 first instance, to have been assigned. 4 - 7 
 
 For Rules as to the transfer of causes, see Order LL, Rules 1, 2, 3, 
 post, p. 290 ; and note thereto, where the subject is considered. See 
 also s. 11 of the Act of 1875, post, p. 132, and in note to last section. 
 
 37. Subject to any arrangements which may be from sittings in 
 time to time made by mutual agreement between the Middlesex 
 Judges of the said Hip-h Court, the sittings for trials by ?? d °" 
 jury in London and Middlesex, and the sittings of Judges 
 
 of the said High Court under Commissions of Assize, 
 Oyer and Terminer, and Gaol Delivery, shall be held by 
 or before Judges of the Queen's Bench, Common Pleas, or 
 Exchequer Division of the said High Court ; provided 
 that it shall be lawful for Her Majesty, if she shall think 
 fit, to include in any such commission any ordinary 
 .Judge of the Court of Appeal or any Judge of the 
 Chancery Division to be appointed after the commence- 
 ment of this Act, or any serjeant-at-law, or any of Her 
 Majesty's counsel learned in the law, who, for the pur- 
 poses of such commission, shall have all the power, 
 authority, and jurisdiction of a Judge of the said High 
 Court. 
 
 By s. 8 of the Act of 1875, post, p. 131, any Judge of the Probate, 
 Divorce, run! Admiralty Division appointed after the passing of that 
 Act will be bound to go circuit, and to take part in the London and 
 Middlesex sittings for trials by jury. 
 
 As to circuits, see s. 29, ante, p. 69 ; and as to the London and 
 Middlesex sittings, s. 30, ante, p. 70,and notes to those sections. As 
 to trials generally , see ( >rder XXXVI., 'post, p. 248.
 
 78 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. xxxviii. 
 
 Rota of 
 Judges for 
 election pe- 
 tition?. 
 
 Powers of 
 
 ir more 
 Judges not 
 constituting 
 a Di\ 
 Court. 
 
 38. The judges to be placed on the rota for the trial of 
 election petitions for England in each year, under the 
 provisions of the " Parliamentary Elections Act, 1868," 
 shall be selected out of the judges of the Queen's Bench, 
 Common Pleas, and Exchequer Divisions of the High 
 Court of Justice in such manner as may be provided by 
 any rules of court to be made for that purpose ; and in the 
 meantime, and subject thereto, shall be selected out of the 
 judges of the said Queen's Pouch, Common Pleas, and 
 Exchequer Divisions of the said High Court, by the 
 judges of such divisions respectively, as if such divisions 
 had been named instead of the Courts of Queen's Bench, 
 Common Pleas, and Exchequer respectively, in such 
 last -mentioned Act : Provided that the judges who, at the 
 commencement of this Act, shall be upon the rota for the 
 trial of such petitions during the then current year, shall 
 c mtinue upon such rota until the end of such- year, in the 
 same manner as if this Act had not passed. 
 
 39. Any judge of the said High Court of Justice may. 
 subject to any rules of court, exercise in court or in 
 chambers all or any part of the jurisdiction by this Act 
 vested in the said High Court, in all such causes and 
 matters, and in all such proceedings in any causes or 
 matters, as before the passing of this Act might have been 
 heard in court or in chambers respectively, by a single 
 judge of any of the courts whose jurisdiction is hereby 
 transferred to the said High Court, or as may be directed 
 or authorised to be so heard by any rules of court to be 
 hereafter made. In all such cases, any judge sitting in 
 court shall be deemed to constitute a court. 
 
 By s. 16, ante, p. 51, all the jurisdiction of any of the courts 
 enumerated in that section is transferred to the High Court, 
 including (subject to the exceptions there referred to) all jurisdiction 
 vested in, or capable of being exercised by all, or any one or more 
 of the judges of su.'h courts sitting in court or chambers, or elsewhere. 
 This, and the following sections provide for the modes in which 
 the Judges of the High Court may exercise the jurisdiction 
 transferred : — 
 
 Three modes are provided : — 
 I. By a judge in chambers. 
 77. By a judge in court. 
 ///. By a divisional court. 
 
 I. As to chambers, by the above rule any jurisdiction which could 
 ■fore have been exercised at chambers by a judge of any court 
 may hereafter be exercised by any judge. 
 
 In the many cases in the Act and Eules in which jurisdiction 
 is given to the Court or a judge, the application will no doubt be 
 to a Judge at chambers where that is in accordance with the ordinary 
 2>ractice of the Division.
 
 PART III. .SITTINGS AND DISTRIBUTION OF BUSINESS. 79 
 
 As to appeals from chambers see s. 50, post, p. 84 ; and as to g x j 
 practice at chambers see Order LIV., post, p. 297. 
 
 II. With regard to the power of a single judge in court, by tli : 
 above rule all jurisdiction which might hitherto have been exercised 
 in court by a judge of any Court may be exercised by any judge. 
 By s. 42, post, p. 80, actions in the Chancery or Probate, Divorce, 
 and Admiralty Division are to be heard, as heretofore, by a single 
 judge in the first instance. By ss. 29 and 30, ante, p. 69, a com- 
 missioner of assize or a judge presiding at a trial by jury in London 
 or Middlesex constitutes a Court. 
 
 Ill .The constitution of divisional courts is provided for by 
 ss. 40 and 41, post, and the holding of them for the various 
 divisions in ss. 41, 43, 44. By s. 41, subject to Rules of Court, 
 all business in the Queen's Bench, Common Pleas, and Exchequer 
 Divisions which would hitherto have been disposed of in banco 
 may be dealt with by divisional courts. 
 
 By Order XXXIX., Rule 1, an application for a new trial in any 
 of the last mentioned divisions must be to a divisional court ; as 
 must also an application under Order XL., Rules 4, 5, 6, to set aside 
 the judgment ordered by the judge at the trial to be entered with- 
 out any leave reserved. By s. 45, post, p. 81, appeals from inferior 
 courts are to be heard by divisional courts. 
 
 40. Such causes and matters as are not proper to be Divisional 
 heard by a single judge shall he heard by Divisional mgh Cour^ 
 Courts of the said High Court of Justice, which shall for of Justice. 
 that purpose exercise all or any part of the jurisdiction of 
 
 the said High Court. Any number of such Divisional 
 Courts may sit at the same time. A Divisional Court of 
 the said High Court of Justice shall be constituted by two 
 or three, and no more, of the judges thereof ; and, except 
 when through pressure of business or any other cause it 
 may not conveniently be found practicable, shall be com- 
 posed of three such judges. Every judge of the said High 
 Court shall be qualified and empoAvered to sit in any of 
 such Divisional Courts. The President of every such 
 Divisional Court of the High Court of Justice shall be the 
 senior judge of those present, according to the order of 
 their precedence under this Act. 
 
 41. Subject to any Rules of Court, and in the meantime Divisional 
 until such rules shall be made, all business belonging to bu S U j n e SS °of 
 tin' Queen's Bench, Common Pleas, and Exchequer Divi- Queen's 
 sions respectively of the said High Court, which, accord- commen 
 ing fco the practice now existing in the Superior Courts of E 1 ®^; ^ 
 Common haw, would have been proper to be transacted Division >. 
 or disposed of by the Court sitting in Banc, if this Act 
 
 ha4 not passed, may he transacted and disposed of by 
 
 Divisional Courts, which shall, as far as may be found 
 
 icable ami convenient, include one or more judge or 
 
 judges attached to the particular division of the said Court
 
 80 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. xlii. to which the cause or matter out of which such business 
 arises has been assigned ; and it shall he the duty of 
 every judge of such last-mentioned division, and also of 
 every other judge of the High Court who shall not for the 
 time being be occupied in the transaction of any business 
 specially assigned to him, or in the business of any 
 other Divisional Court, to take part, if required, in the 
 sittings of such Divisional Courts as may from time 
 to time be necessary for the transaction of the business 
 assigned to the said Queen's Bench, Common Pleas, 
 and Exchequer Divisions respectively ; and all such 
 arrangements as may be necessary or proper for that pur- 
 pose, or for constituting or holding any Divisional Courts 
 of the said High Court of Justice for any other purpose 
 authorised by this Act, and also for the proper transaction 
 of that part of the business of the said Queen's Bench, 
 Common Pleas, and Exchequer Divisions respectively, 
 which ought to be transacted by one or more judges not 
 sitting in a Dmsional Court, shall be made from time to 
 time under the direction and superintendence of the Judges 
 of the said High Court ; and in case of difference among 
 them, in such manner as a majority of the said judges, 
 with the concurrence of the Lord Chief Justice of 
 England, shall determine. 
 See note to s. 39, ante, p. 78. 
 
 Distribution 42. Subject to any rules of Court, and in the meantime 
 an^ngThc un til suc h rules shall be made, all business arising out of any 
 judges of cause or matter assigned to the Chancery or Probate, 
 'ery and " Divorce, and Admiralty Division of the said High Court 
 Probate, shall be transacted and disposed of in the first instance by 
 Admiralty one judge only, as has been heretofore accustomed in the 
 rhe V H°gh° f Court of Chancery, the Court of Probate and for Divorce 
 Court. Mini Matrimonial Causes, and the High Court of Admiralty 
 
 respectively; and every cause or matter which, at the com- 
 mencement of this Act, may be depending in the Court 
 of Chancery, the Court of Probate and for Divorce and 
 Matrimonial Causes, and the High Court of Admiralty 
 respectively, shall (subject to the power of transfer) be 
 assigned to the same judge in or to whose court the 
 same may have been depending or attached at the com- 
 mencement of this Act ; and every cause or matter which 
 after the commencement of this Act may be commenced 
 in the Chancery Division of the said High Court shall be 
 assigned to one of the judges thereof, by marking the 
 same with the name of such of the said judges as the 
 plaintiff or petitioner (subject to the power of transfer)
 
 TART III. SITTINGS AND DISTRIBUTION' OF BUSINESS. SI 
 
 may in his option think fit : Provided that (subject to s. xliii. 
 any rules of Court, and to the power of transfer, and to 
 the provisions of this Act as to trial of questions or 
 issues by commissioners, in Middlesex or London,) all 
 causes and matters which, if this Act had not passed, 
 would have been within the exclusive cognizance of the 
 High Court of Admiralty, shall be assigned to the present 
 Judge of the said Admiralty Court during his contiuuance 
 in office as a judge of the High Court. 
 
 As to marking the writ, see Order II., Rule 1, post, p. 158, and 
 note thereto. 
 
 As to transfer, see ss. 35 and 36, ante ; s. 11, of the Act of 1875, 
 post, p. 132 ; and Order LI., Rules 1, 2, B,post, p. 290, and note thereto. 
 
 As to trials on circuit, and in London and Middlesex, see ss. 29 
 and 30, ante, p. 69 ; Order XXXVI., Rule 29, post, p. 256. 
 
 ■43. Divisional Courts may be held for the transaction Divisional 
 i if any part of the business assigned to the said Chancery Courts for 
 Division, which the judge, to whom such business is theChancery 
 assigned, with the concurrence of the President of the Dlvlslon - 
 same division, deems proper to be heard by a Divisional 
 Court. 
 
 14. Divisional Courts may be held for the transaction Divisional 
 of any part of the business assigned to the Probate, Courts for 
 Divorce, and Admiralty Division of the said High Court, belonging to 
 which the judges of such division, with the concurrence the Dlvlslon 
 of the President of the said High Court, deem proper to 
 be heard by a Divisional Court. Any cause or matter 
 assigned to the said Probate, Divorce, and Admiralty 
 Division may be heard at the request of the President of 
 such Division, with the concurrence of the President of 
 the said High Court, by any other judge of the said High 
 Court. 
 
 45. All appeals from Petty or Quarter Sessions, from a Appeals 
 County Court, or from any other inferior Court, which coSt^to "be 
 might before the passing of this Act have been brought determined 
 to any Court or judge whose jurisdiction is by this Act Courts! 510 ' 
 transferred to the High Court of Justice, may be heard 
 and determined by Divisional Courts of the said High 
 Court of Justice, consisting respectively of such of the 
 thereof as may from time t > time be assigned for 
 that purpose, pursuant to Rules of Court, or (subject to 
 Rules of ( !ourt) as may be so assigned according to arrange- 
 ments made for the purpose by the judges of the said 
 High Court. The determination of such appeals respec 
 tively by such Divisional Courts shall be final unless 
 
 r .5 
 
 ^/Aa^ /Wt &*~> £"^* ™t* fa *£*■ , &e*_ Jff ""i"? K'ot-.e. S~o 
 
 *6. '
 
 82 
 
 SUPBEME ( OURT OF JUDICATURE ACT, 1873. 
 
 S. xhi special leave to appeal from tire same to the Court of 
 Appeal shall be given by tire Divisional Court by which 
 any such appeal from an inferior Court shall have been 
 heard. 
 
 There is no rule in the schedule of rules relating to such appeals 
 from inferior Courts. 
 
 Cases and 
 points may 
 be reserved 
 for or di- 
 rected to be 
 argued 
 ii P re I >'< 
 sional Courts 
 
 4G. Subject to any rules of court, any judge of the said 
 High Court, sitting in the exercise of its jurisdiction 
 elsewhere than in a Divisional Court, may reserve any 
 case, or any point in a case, for the consideration of a 
 Divisional Court, or may direct any case, or point in a case, 
 to be argued before a Divisional Court; and any Divi- 
 sional Court of the said High Court shall have power to 
 hear and determine any such case or point so reserved or 
 so directed to be argued. 
 
 The practice of reserving points at the trial for the opinion of 
 the Court in banc has been in constant use in the Common Law 
 Courts ; but it could only be done by consent. This section if it 
 stood alone seems to place it, in all cases, in the discretion of the 
 Judge. But s. 22 of the Act of 1875, post, p. 138, after reciting this 
 section, enacts that nothing in the Acts or rules " shall take away or 
 prejudice the right of any party to any action to have the issues 
 for trial by jury submitted and left by the judge to the jury before 
 whom the same shall come for trial with a proper and complete 
 direction to the jury upon the law, and as to the evidence applicable 
 to such issues : Provided, also that the said right may be enforced 
 either by motion in the High Court of Justice, or by motion in the 
 if Appeal founded upon an exception entered upon or annexed 
 to the record." 
 
 In order to appreciate the effect of the several provisions upon 
 this point, it is necessary to observe the several ways in which 
 questions of law arise or will arise in trials by jury. 
 
 One mode is this, the jury having certain issues to try, the judge 
 has constantly to decide upon the admissibility of evidence, and upon 
 other questions of law arising incidentally in the course of the trial 
 of those issues. Questions of law so arising the judge can, as here- 
 tofore, only reserve by consent : for by the express terms of the 
 provision just cited either party may insist upon having the judge's 
 ruling, and may proceed thereupon in a manner closely resembling 
 the old procedure by bill of exceptions. But several things should 
 be considered in estimating the importance of the rule. In the first 
 a judge has power to direct issues to be settled and in case of 
 disagreement to settle them himself ; Order XXVI., post, p. 222. 
 here seems nothing in the terms of that order to prevent the 
 judge at the trial from exercising this power. So that the judge may 
 ■ lily have no small control over what "the issues for trial by 
 jury " are to be. In the second place (what is much more important) 
 misdirection or the improper admission or rejection of evidence will 
 be ground for a new trial only if some substantial wrong or mis- 
 carriage lias been the result ; Order XXXIX., Rule 3, post, 
 p. 268. And in the third place a new trial may be granted of 
 the question as to which a miscarriage has taken place vv : - 
 disturbing the finding as to any other question ; ibid.
 
 PART III. SITTINGS AND DISTRIBUTION OF BUSINESS. 83 
 
 But questions of law will arise in another way. The judge will s. xlvii. 
 be a Court. And after the jury have found the facts, it will be for — 
 
 him to say what judgment any party is entitled to upon the facts so 
 found. Questions arising in this way the judge may reserve without 
 any ci insent, tinder the above section. And Order XXXVI., Rule 22, 
 post, p. 253, expressly provides that he may either direct judgment 
 simply, or direct judgment subject to leave to move, or leave the 
 whole matter at large to be dealt with on motion for judgment. 
 
 47. The jurisdiction and authorities in relation to ques- Provision for 
 tions of law arising in criminal trials which are now vested re r ^r V "<^ ase:> 
 in the Justices of either Bench and the Barons of the 
 Exchequer hy the Act of the session of the eleventh and 
 twelfth years of the reign of Her present Majesty, chapter 
 seventy-eight, intituled " An Act for the further amend- 
 ment of the administration of the Criminal Law," or any 
 Act amending the same, shall and may be exercised after 
 the commencement of this Act by the judges of the High 
 Court of Justice, or five of them at the least, of whom 
 the Lord Chief Justice of England, the Lord Chief Justice 
 of the Common Pleas, and the Lord Chief Baron of the 
 Exchequer, or one of such chiefs at least, shall be part. 
 The determination of any such question by the judges of 
 the said High Court in manner aforesaid shall be final 
 and without appeal; and no appeal shall lie from any2<C. /?, % 3y,43 
 judgment of the said High Court in any criminal cause or 
 matter, save for some error of law apparent upon the 
 record, as to which no question shall have been reserved 
 for the consideration of the said judges under the said 
 Acl of the eleventh and twelfth years of Her Majesty's 
 reign. 
 
 By s. 71, post, p. 98, for which s. 19 of the Act of 1875 is now 
 substituted, criminal procedure remains as it has been, unless and 
 until altered by rule. 
 
 46. Every motion for a tunc trial of any cause or mutter Motions for 
 on which a verdict has been found by a jury, or by a judge ^hearr/by 
 irithout a jury, and every motion in arrest of Judgment, or Divisional 
 tn ri/trr jndijiiii nf mm obstante veredicto, m- to enter a 
 nerdict fur plaintiff or defendant, or tn enter a nonsuit, or 
 hi reduce damages, shall I" heard before a Divisional Court; 
 mill, no appeal shall lie from any judgment founded upon 
 .nut applying tn any verdict unless a motion has been made 
 or other proceeding taken before a Divisional Court to set 
 or reverse such verdict, cr the judgment, if any, 
 founded thereon, in which case an appeal shall lie tn the 
 Court of Appeal from the decision of llm Divisional Court 
 upon such motion or nf/,, ,■ proceeding. 
 
 This section is repealed by the Act of 1875, post, p.148.
 
 84 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. xlix. 49. Xo order made by the High Court of Justice or any 
 
 whatTorders Judge thereof, by the consent of parties , or as to costs Z&. 
 shall not be only , which by law are leit to the discretion of the _£kmrJ,^/ 
 Appeal. ° shall be subject to any appeal, e xcep t by leave of the 
 Court or judge making such order, /fi 
 
 As to appeals generally, see s. 19, ante, p. 54 ; Order LVIIL. 
 post, p. 301. 
 
 Astodis- 50. Every order made by a judge of the said High 
 
 orders made Court in Chambers, except orders made in the exercise of 
 m Chambers. snc ] x discretion as aforesaid, may be set aside or discharged 
 upon notice by any Divisional Court, or by the judge 
 sitting in court, according to the course and practice of the 
 Division of the High Court to which the particular cause 
 or matter in which such order is made may be assigned ; 
 and no appeal shall lie from any such order, to set aside 
 or discharge which no such motion has been made, unless 
 by special leave of the judge by whom such order was 
 made, or of the Court of Appeal. 
 
 As to a judge's jurisdiction in chambers see s. 39, ante, p. 78, 
 and note thereto. As to practice in chambers, see Order LIV. r 
 post, p. 297. 
 
 Provision for 51. Upon the recpiest of the Lord Chancellor, it shall 
 Vili ^ e lawful for any Judge of the Court of Appeal, who 
 ice of may consent so to do, to sit and act as a Judge of the said 
 High Court or to perform any other official or ministerial 
 acts for or on behalf of any judge absent from illness or 
 any other cause, or in the place of any judge whose 
 office has become vacant, or as an additional judge of any 
 division ; and while so sitting and acting any such Judge 
 of the Court of Appeal shall have all the power and 
 authority of a judge of the said High Court. 
 
 Power of a 52. In any cause or matter pending before the Court of 
 " ( ' t " e Appeal, any direction incidental thereto, not involving the 
 decision of the appeal, may be given by a single judge of 
 the Court of Appeal ; and a single judge of the Court of 
 Appeal may at any time during vacation make any interim 
 order to prevent prejudice to the claims of any parties 
 I lending an appeal as lie may think fit ; but every such 
 order made by a single judge may be discharged or varied 
 by the Court of Appeal or a Divisional Court thereof. 
 
 With respect to the constitution of the Court of Appeal, see s. 4 
 of the Act of 1875, post, p. 127. 
 
 As to when an appeal lies, see s. 19, ante, p. 54, and note 
 thereto. 
 
 For the practice upon Order LYIIL, post, p. 301.
 
 TART III. SITTINGS AND DISTRIBUTION OF BUSINESS. 85 
 
 53. Every appeal to the Court of Appeal shall be heard s. liii. 
 or determined either by the whole court or by a Divisional rj; v ; s -T na i 
 Court consisting of any number, not less than three, of the Courts of 
 
 judges thereof. Any number of such Divisional Courts Appeal 
 may sit at the same time. Any appeal which for any 
 reason may be deemed fit to be re-argued before decision 
 or to be re-heard before final judgment may be so re-argued 
 or re-heard before a greater number of judges if the Court 
 of Appeal tli ink fit so to direct. 
 
 This section is repealed by the Act of 1875, and the following 
 provision substituted : — 
 
 S.12. "EveryappealtotheOourtof Appeal shall, where the subject- Sitting 
 matter of the appeal is a final order, decree, or judgment, be heard \^ e j\ 
 before not less than three judges of the said court sitting together, 
 and shall, when the subject-matter of the appeal is an interlocutory 
 order, decree, or judgment, be heard before not less than two judges 
 of the said court sitting together. 
 
 Any doubt which may arise as to what decrees, orders, or judg- 
 ments are final, and what are interlocutory, shall be determined by 
 the Court of Appeal. 
 
 Subject to the provisions contained in this section the Court of 
 Appeal may sit in two divisions at the same time." 
 
 54. No judge of the said Court of Appeal shall sit as Judges not 
 a judge on the hearing of an appeal from any judgment or appeal from] 
 order made by himself or made by any Divisional Court o/j^ment" 
 the High Court of which he, was himself a member. 
 
 This is repealed by s. 4 of the Act of 1875, post, p. 128 ; and in 
 the substituted provision instead of "was a member," the words are 
 " was and is," from which would seem that " Divisional Court" is 
 used for " Division." 
 
 55. All such, arrangements as may be necessary or Arrange- 
 proper for the transaction of the business from time to business of 
 time pending before the Court of Appeal, and for con- ^"e'u^aivt 
 stituting and holding Divisional Courts thereof, shall be for hearing 
 made by and under the direction of the President and the transferred 
 other ex-officio and ordinary Judges of the said Court of fr°™ ' he 
 Appeal ; and if Her Majesty shall be pleased by Order in Committee 
 Council to direct that the hearing of such appeals and c f t u 1 n e c ; 1 j ,nvy 
 petitions to Her Majesty in Council as hereinbefore men- 
 tioned shall be referred to the said Court of Appeal, not 
 
 less than one Divisional Court of the said Court of Appeal 
 shall sit throughout the year (except during vacations) for 
 the hearing of such of the appeals and petitions so referred 
 as may from time to time Ik; depending and ready for 
 hearing, which Divisional Court shall be composed (as 
 far as may be found practicable) of Judges of the 
 Court of Appeal who are also members of Her Majesty's 
 Privy Council ; and any member of Her Majesty's Privy 
 Council who, having held the office of a judge in the
 
 .SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 East Indies or in an}- of Her Majesty's dominions beyond 
 tbe seas, snail nave been appointed by Her Majesty, under 
 the Acts relating to tbe Judicial Committee of the Privy 
 Council, to attend the sittings of the said Judicial Com- 
 mittee, may attend the sittings of any such Divisional 
 Court of the Court of Appeal ; and with respect to the 
 place of sitting of any such last-mentioned Divisional 
 Court, and any attendance or service therein, or in aid 
 of the proceedings thereof, 'which may be required from 
 the Registrar or any other officer of Her Majesty's Privy 
 Council, all such arrangements as may be necessary or 
 proper shall be made by the Lord Chancellor, as President 
 of the Court of Appeal, with the concurrence of the Presi- 
 dent for the time being of Her Majesty's Privy Council ; 
 and the President of Her Majesty's Privy Council shall 
 from time to time give such directions to the Registrar 
 and other officers of the said Privy Council as may be 
 necessary or proper for the purpose of carrying such last- 
 mentioned arrangements into effect. 
 
 By s. 2 of the Act of 1875, post, p. 126, the operation of this section, 
 as well as that of ss. 20 & 21, is suspended until the 1st November, 
 1876. 
 
 PART IV. 
 Trial and Procedure. 
 
 References 56. Subject to any rules of court and to such right as 
 sorl asses " ma y now ex i st t° have particular cases submitted to the 
 verdict of a jury, any question arising in any cause or 
 matter (other than a criminal proceeding by the Crown) 
 before the High Court of Justice or before the Court of 
 Appeal, may be referred by the Court or by any Divisional 
 Court or judge before whom such cause or matter may be 
 pending, for inquiry and report to any official or special 
 referee, and the report of auy such referee may be adopted 
 wholly or partially by the Court, and may (if so adopted) 
 lie enforced as a judgment by the Court. The High Court 
 or the Court of Appeal may also, in any such cause or 
 matter as aforesaid in which it may think it expedient so 
 to do, call in the aid of one or more assessors specially 
 qualified, and try and hear such cause or matter wholly or 
 partially with the assistance of such assessors. The 
 remuneration, if any, to be paid to such special referees 
 or assessors shall be determined by the Court. 
 See note to the next section.
 
 PAKT IV. TRIAL AND PEOCEDUBE. 87 
 
 57. In any cause or matter (other than a criminal pro- s. Kii. 
 ceedino- by the Crown) before the said High Court in D 
 
 o J ' o rower to 
 
 which all parties interested who are under no disability direct trials 
 consent thereto, and also without such consent in any R e f f e Tees. 
 such cause or matter requiring any prolonged examina- ^/-^^^^ *f 
 tion of documents or accounts, or any scientific ovjCt~.*£ <&£.%. Jtpt. 
 local investigation which cannot, in the opinion of the 
 Court or a judge, conveniently be made before a jury, or 
 conducted by the Court through its other ordinary officers, 
 the Court or a judge may at any time, on such terms as 
 may be thought proper, order any question or issue of 
 fact or any question of account arising therein to be 
 tried either before an official referee, to be appointed as 
 hereinafter provided, or before a special referee to be agreed 
 on between the parties ; and any such special referee so 
 agreed on shall have the same powers and duties and pro- 
 ceed in the same manner as an official referee. All such trials 
 before referees shall be conducted in such manner as may 
 be prescribed by rules of court, and subject thereto in such 
 manner as the Court or judge ordering the same shall direct. 
 
 With respect to references to referees generally, their powers, the 
 modes of procedure before them, and the remedy by way of appeal 
 from them, see Order XXXVI., Rules 30 to 34, post, p. 256, and 
 note thereto, where the subject is fully considered. 
 
 As to the appointment of Official Referees, see s. 83, post, p. 106. 
 
 58. Tn all cases of any reference to or trial by referees Power of 
 under this Act the referees shall be deemed to be officers r !, efe !' ee r s f u nd 
 
 . 1 -, it ni i ettect ot taen* 
 
 of the Court, and shall have such authority for the purpose finding-. 
 of such reference or trial as shall be prescribed by rules of 
 court or (subject to such rules) by the Court or judge 
 ordering such reference or trial; and the report of any - 
 referee upon any question of fact on any such trial shall 
 (unless set aside by the Court) be equivalent to the verdict 
 of;! jury. 
 
 See note to the last section. 
 
 59. With respect to all such proceedings before referees powers of 
 and their reports, the Court or such judge as aforesaid Court with 
 shall have, in addition to any other powers, the same or proceedin 
 the like powers as are given to any Court whose juris- Referees 
 diction is hereby transferred to the said High Court with ^^J^^a 
 respect to references to arbitration and proceedings before A/XJb6& 
 arbitrators and their awards respectively, by the Common 
 
 Law Procedure A.ct. 185 !. 
 
 See note fco s. 57. The sections of the C. L. P. Act, 1854, relating 
 bo arbitration, will lie found set < ut in the note to Order XXXVI., 
 Rule 30, post, p. 258.
 
 88 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. ix. GO. And whereas it is expedient to facilitate the prose- 
 
 Her Majesty cu tion in country districts of such proceedings as may be 
 iT>hTY a ~- more speedily, cheaply, and conveniently carried on 
 RegistrkJTn therein, it shall be lawful for Her Majesty, by Order in 
 the country Council, from time to time to direct that there shall be 
 
 tor the .^ ..-,-.. 
 
 Supreme District Registrars in such places as shall be in such order 
 mentioned for districts to be thereby defined, from which 
 writs of summons for the commencement of actions in the 
 High Court of Justice may be issued, and in which such 
 proceedings may be taken and recorded as are hereinafter 
 mentioned ; and Her Majesty may thereby appoint that any 
 Registrar of any Comity Court, or any Registrar or Protho- 
 notary or District Prothonotary of any local Court whose 
 jurisdiction is hereby transferred to the said High Court of 
 Justice, or from which an appeal is hereby given to the said 
 Court of Appeal, or any person who, having been a District 
 Registrar of the Court of Probate, or of the Admiralty 
 Court, shall under this Act become and be a District 
 Registrar of the said High Court of Justice, or who shall 
 hereafter lie appointed such District Registrar, shall and 
 may lie a District Registrar of the said High Court for the 
 purpose of issuing such writs as aforesaid, and having such 
 proceedings taken before him as are hereinafter mentioned. 
 This section .-hall come into operation immediately upon 
 the passing of this Act. 
 
 This sectii n is amended by s. 13, of the Act of 1875, which is as 
 follows : — 
 
 Amendment 
 
 <>f s. 6o of S. 13. " W hereas by s. 60 of the principal Act it is provided that 
 
 36 it 37 Vict, for the purpose of facilitating the prosecution in country districts of 
 c. 66 as to i e g a i proceedings, it shall be lawful for Her Majesty by Order in 
 Council from time to time to direct that there shall be district 
 registrars in such places as shall be in such order mentioned for dis- 
 tricts to be thereby defined ; and whereas it is expedient to amend 
 the said section, be it therefore enacted that — 
 
 "Where any such order has been made, two persons may, if 
 required, be appointed to perform the duties of district registrar 
 in any district named in the order, and such persons shall be deemed 
 to be joint district registrars, and shall perform the said duties in 
 such manner as may from time to time be directed by the said 
 order, or any order in council amending the same. 
 
 Moreover the registrar of any inferior court of record having 
 jurisdiction in any part of any district defined by such order (other 
 than a county court) shall, if appointed by Her Majesty, be quali- 
 fied to be a district registrar for the said district, or for any and 
 such part thereof as may be directed by such order or any order 
 amending the same. 
 
 Every district registrar shall be deemed to be an officer of the 
 Supreme Court, and be subject accordingly to the jurisdiction of such 
 court, and of the divisions thereof." 
 
 An Order in Council has been made in pursuance of this 
 section, establishing a number of District Registries and defining 
 their districts. See the Order, post, p. 418.
 
 TART IV. TRIAL AND PROCEDURE. 89 
 
 61. In every such district registry such, seal sliall be s. ixi. 
 used as the Lord Chancellor shall from time to time, s ea isof 
 either before or after the time fixed for the commencement District 
 of this Act, direct, which seal shall be impressed on every 
 
 writ and other document issued out of or filed in such 
 district registry, and all such writs and documents, and 
 all exemplifications and copies thereof, purporting to be 
 sealed with the seal of any such district registry, shall in 
 all parts of the United Kingdom be received in evidence 
 without further proof thereof. 
 
 62. All such district registrars shall have power to admi- Powers of 
 nister oaths and perform such other duties in respect of Registrars, 
 any proceedings pending in the said High Court of Justice 
 
 or in the said Court of Appeal as may be assigned to them 
 from time to time by rules of court, or by any special 
 order of the Court. 
 
 As to the powers of District Registrars, see Order XXXV., 
 post, p. 242. 
 
 63. The Lord Chancellor, with the sanction of the Fees to be 
 Treasury, may, either before or after the commencement of District 5 
 this Act, fix, and may afterwards, with the like sanction, Registrars. 
 from time to time alter, a table of fees to be taken by such 
 district registrars in respect of all business to In- done under 
 
 this Act ; and such fees shall be received and collected by 
 stamps, denoting in each case the amount of the fee pay- 
 able. The provisions of the " Courts of Justice (Salaries 
 and Fnmls) Act, 1SG9," as to fees to be token by stamps, 
 shot I apply to the fees to be received and collected by stamps 
 under this Act. 
 
 This section is repealed by the Act of 1875. The latter Act, s. 26, 
 post, p. 141, gives a general power to the Lord Chancellor, with the 
 advice and consent of the judges, or any three of them, and with the 
 concurrence of the Treasury, to fix the fees to be taken in the 
 Supreme Court generally, including, of course, those to be taken in 
 District Registries. 
 
 64. Subject to the rules of court, in force for the time Proceedings 
 being, writs of summons for the commencement of actions [° Disbrkt" 
 in the High Court of Justice shall be issued by the Registries. 
 district registrars when thereunto required ; and unless 
 
 any order to the contrary shall be made by the High Court 
 of Justice, or by any judge thereof, all such further pro- 
 ceedings, including proceedings for the arrest or detention 
 of a ship, her tackle, apparel, furniture, cargo, or freight, 
 as may and ought to be taken by the respective parties to 
 such action in the said High Court down to and including
 
 i)0 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. xiv. entry for trial, or (if the plaintiff is entitled to sign final 
 judgment or to obtain an order for an account by reason 
 
 of the non-appearance of the defendant) down to and 
 including final judgment, or an order for an account, 
 may he taken before a district registrar, and recorded in 
 the district registry, in such manner as may be prescribed 
 hy rules of court ; and all such other proceedings in any 
 such action as may be prescribed by rules of court shall 
 be taken and if necessary may be recorded in the same 
 district registry. 
 
 As to proceedings in District Registries generally see Order V., 
 Rule 1 ; Order XII., Rules 1 to 5 ; Order XXXV., post, pp. 16S, 1S1, 
 212, and notes thereto. 
 
 Power for 65. Any party to an action in winch a mt of sum- 
 
 rcmovepro- moris shall have been issued from any such district 
 ceedings _ registry shall b rty at anytime to apply, in such 
 
 Registries" manner as shall be prescribed by rules of court, to the 
 said High Court, or to a judge in chambers of the division 
 of the said High Court to which the action may be 
 assigned, to remove the proceedings from such district 
 registry into the proper office of the said High ( 
 and the Court or judge may, if it be thought fit, grant 
 such application, and in such case the proceedings and 
 such original documents, if any, as may be filed therein 
 shall upon receipt of such order be transmitted by the 
 district registrar to the proper office of the said High 
 Comt, and the said action shall thenceforth proceed in 
 the said High Court in the same manner as if it had been 
 originally commenced by a writ of summons issued out 
 of the proper office in London ; or the Court or judge, if 
 it be thought right, may thereupon direct that the pro- 
 ceedings may continue to be taken in such District 
 Registry. 
 
 As to removal from trie District Registry, and also as to re- 
 moval from London to a District Registry, see Order XXXV., 
 Rules 12 to 15, post, p. 246, and note thereto. 
 
 Accounts 66. It shall be lawful for the Court, or any judge of 
 
 ^y 1 be 1UmeS the division to which any cause or matter pending in the 
 
 referred to said High Court is assigned, if it shall be thought fit, to 
 
 Registrars, order that any books or documents may be produced, or 
 
 any accounts taken or inquiries made, in the office of ox 
 
 by any such district registrar as aforesaid ; and in any 
 
 such case the district registrar shall proceed to carry all 
 
 sttch directions into effect in the manner prescribed ; and 
 
 in any case in which any such accounts or inqiuri.es shall 
 
 have been directed to betaken or made by any district
 
 PART IV. TRIAL AND PROCEDURE. 91 
 
 registrar, the report in writing of such district registrar as s. ixvii. 
 to the result of such accounts or inquiries may he acted 
 upon by the Court, as to the Court shall seem fit. 
 
 As to the production of documents, see Order XXXL, post, p. 232, 
 and note thereto. 
 
 As to inquiries and accounts, see Order XXXIIL, post, p. 239 
 
 G7. The provisions contained in the fifth, seventh, 30&31 Vict. 
 eighth, and tenth sections of the County Courts Act, £ a*nd S io 5 to ' 
 18G7, shall apply to all actions commenced or pending in extend to 
 
 . . a.ctions in 
 
 the said High Court of Justice in which any relief is High court. 
 sought which can be given in a County Court. j^ ^ ^vv~<~ 
 
 In order to appreciate the effect of this section, it will be con- / "* / ^ 
 venient to examine first the sections of the County Courts Act, 1867, <«^*-**«-», <3 X ~ 
 referred to, and the construction which has been put upon them, and -^—\ & 
 then to endeavour to apply the language of the present section to them. ' 
 
 By the County Courts Act, 1867 (30 & 31 Vict. c. 1 12) s. 5 :— 
 
 "If in any action commenced after the passing of this Act in Costs not re- 
 any of Her Majesty's Superior Courts of Record the plaintiff coverable in 
 shall recover a sum not exceeding twenty pounds if the action is *V per '" r , 
 founded on contract, or ten pounds if founded on tort, whether by lessthani^o 
 verdict, judgment by default, or on demurrer, or otherwise, he shall on contrai 1 
 not be entitled to any costs of suit unless the judge certify on the or £ l ° on 
 record that there was sufficient reason for bringing such action in 
 such superior Court, or unless the Court or a judge at chambers 
 shall by rule or order allow such costs." 
 
 It has been held that the words "commenced! after the passing 
 of this Act,'" are to be treated as parenthetical, and that this section 
 applies to the case of an action commenced in an inferior Court and 
 removed into a superior Court by certiorari, at the instance of the 
 defendant ; Pettas v. Breslauer, Law Rep., 6 Q. B. 438. It has 
 also been held that the section applies to " any action " in 
 the widest sense, even such as could not be brought in a 
 County Court, Sampson v. Maclcay, Law Rep., 4 Q. B. 643 ; 
 though the fact that the action could not have been brought in a 
 County Court, may be a material fact to consider in determining 
 whether costs should be allowed or not ; Craven v. Smith, Law Rep. 
 4 Ex., 146 ; Gray v. West, Law Rep. 4 Q. B., 175 ; Sampson v. 
 Maclcay, ubi suprdb. The section has also been held to apply to 
 actions under the Bills of Exchange Act (see post) ; Holbrow 
 v. Jones, Law Rep. 4 C. P., 1 4. With regard to the case of a defendant 
 added after action brought see Balmain v. Lick/old, Law Rep. 10 
 C. P., 203. As to what are actions founded on contract, and what 
 on tort within the meaning of this section, see Tattan v. (!. ]V. Ry. 
 < 'ompany, 2 E. & E. 844 ; Legge v. Tucker, 1 H. & N., 500 ; Baylis 
 v. Untott, Law Rep. 8 C. P., 3 15. 
 
 The word "recover" applies to all cases in which the plaintiff obtains 
 a judgment for less than the specified amount ; as, for instance, where 
 the action is referred ; Cowett v. Amman Company, 6 B. & S., 333 ; 
 Robertson v. Sterne, 13 I '. B. X. S., 2 l,s ; Smith v. Edge, 2 E. &< '. 659 ; 
 Moorev. Watson, Law Rep. 2 C. P., 314. So where money less than 
 the specified sum is paid into < Ymrt and accepted in satisfaction ; Parr 
 v. LiUicrap, 1 li. & ( '., 615 ; Boulding v, Tyler, 3 B. & S., 472.
 
 92 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 A like construction has been applied when the plaintiff's claim has 
 been reduced by set off ; Ashcroft v. FouUces, 18 C. B., 261 ; Beard 
 v. Perry, 1 B. & S., 493. A somewhat different question may arise 
 if the plaintiff's claim is reduced, not by a set off proper, but by a 
 counterclaim raised under the provisions of s. 24 of the present Act. 
 With reference to this, it may not be immaterial to consider 
 those cases in which a plaintiff has combined two separate and 
 distinct claims in the same action, and it has been held that for the 
 purposes of costs they might be treated as two actions ; see Smith 
 v. Harnor, 3 ( '. B. N. S., 829 ; Black more v. Higgs, 15 C. B. N. S., 790. 
 
 Two modes, it will be observed, are provided, in which in 
 cases within the section a plaintiff may get his costs. The first is a 
 certificate of the judge that there was sufficient ground for 
 bringing the action in the superior Court. The word judge in- 
 cludes the Judge of a County Court to which the case is sent 
 for trial ; Tut/lor v. Cass, Law Kep. 4 C. P. 614 ; and an Under- 
 Sheriff executing a writ of enquiry ; Craven v. Smith, Law Rep. 4, 
 Ex. 146. The certificate is to be upon the record. This has hitherto 
 in ordinary cases been the Xisi Prius record. Probably the record for 
 this purpose will ordinarily be for the future, the copy of the plead- 
 ings delivered by the party entering the cause for trial under Order 
 XXXVI., Rule 17. At Xisi Prius the associate will make an entry 
 of such certificate, under Order XXX VI., Rule 23. And his certi- 
 ficate, it may be presumed, will be the proper evidence of it. See 
 Ibid, Fades 24 and 25. In the case of a County Court Judge, the 
 issue sent to the County Court, and in the case of an LTnder-Sheriff 
 the writ of inquiry is a sufficient record upon which to certify ; 
 Tayhr v. Cass, ubi supra. The certificate need not be given during- 
 the assize:; at which the cause is tried ; Bennett v. Thompson, 6 
 E. & B., 683. 
 
 Secondly, the plaintiff may apply to the Court, or to a judge at 
 chambers, for a rule or order allowing his costs. The Court will 
 not ordinarily overrule the discretion exercised by the judge at the 
 trial, though the decisions upon this point are not quite uniform; 
 Hatch v. Lewis, 7 H. & N., 367 ; Hindi: v. Sheppard, Law Rep. 7 Ex. 
 21 ; Flitters v. Allfrey, Law Rep. 10 C. P., 29 ; Strachey v. Lord 
 Osborne, Law Rep. 10 C. P., 92. But upon new materials or a 
 different view of the case, the Court have allowed costs where the 
 judge had refused to certify ; Sampson v. Mackay, Law Rep. 
 4 Q. B., 643 ; GourUnay v. Wagstaff, 16 C. B., N. S., 110. 
 
 Lord Denman's Act, 3 & 4 Vict. c. 24. s. 2, by which a plaintiff 
 recovering less than 40s. in an action of tort is deprived of costs 
 unless the judge certify that the action was brought to try a right 
 or that the wrong was wilful and malicious, is still in force. In 
 cases within it, therefore, a certificate under each Act is necessary ; 
 /'.//'/. v. Gandy, 7 *'. B. X. S. 556. So if a plaintiff in slander re- 
 cover less than 40s. damages he cannot by 21 Jac. 1, c. 16, s. 6, have 
 more costs than damages, though he obtain certificates both under 
 Lord Denman's Act and the County Court Act ; Marshall v. Martin, 
 Law Rep. 5, Q.B., 239. See also Smith v. Raley, Law Rep. S, Ex. 16. 
 
 In certain By s. 7 : "Where in any action of contract brought or commenced in 
 
 cases Judge an y of Her Majesty's superior Courts of Common Law the claim en- 
 dorsed on the writ does not exceed fifty pounds, or where such claim, 
 though it originally exceeded fifty pounds, is reduced by payment, an 
 admitted set off or otherwise, to a sum not exceeding fifty pounds, 
 it shall be lawful for the defendant in the action, within eight days 
 from the day upon which the writ shall have been served upon him, 
 
 .if Superior 
 Courts may 
 order cause 
 to be tried 
 in County 
 Court.
 
 PART IV. TRIAL AND PROCEDURE. 93 
 
 if the whole or part of the demand of the plaintiff be contested, to g. Ixvii. 
 apply to a Judge at Chambers for a summons to the plaintiff to 
 show cause why such action should not be tried in the County Court 
 or one of the County Courts in which the action might have been 
 commenced ; and on the hearing of such summons the Judge 
 shall, unless there be good cause to the contrary, order such action 
 to be tried accordingly, and thereupon the plaintiff shall lodge the 
 original writ and the order with the Registrar of the County Court 
 mentioned in the order, who shall appoint a day for the hearing of 
 the cause, notice whereof shall be sent by post or otherwise by the 
 Registrar to both parties or their attorneys, and the cause and all 
 proceedings therein shall be heard and taken in such County Court 
 as if the action had been originally commenced in such County 
 Court ; and the costs of the parties in respect of proceedings subse- 
 quent to the order of the Judge of the superior Court shall be 
 allowed according to the scale of costs in use in the County Courts, 
 and the costs of the proceedings previously had in the superior Court 
 shall be allowed according to the scale in use in such latter Court." 
 
 This section, it will be observed, is in its terms limited to actions 
 of («) contracts (b) in a Common Law Court (r), in which the claim 
 endorsed is not more than £50. The application can only be made 
 by the defendant, and within eight days after the service of the 
 writ. The cause, if an order is made, becomes for all purposes a 
 County Court cause, and the superior Court has no further control 
 over it; Moody v. Steward, 19 \V. R., 161. 
 
 The power given by tins section must not be confounded with 
 that under 19 & 20 Vict., c. 108, s. 26, on the application of either 
 party after issue joined, to order the trial of an action of contract 
 to take place in a County Court, the action still remaining one in 
 the superior Court ; see Wheatcroft v. Foster, E. B. & E., 737 ; 
 Balmforth v. Pledge, Law Rep., 1 Q. B., 427. This last-mentioned 
 power is not in terms affected by the present Judicature Act. 
 
 By s. 8 : " Where any suit or proceedings shall be pending in the Proceeding? 
 High Court of Chancery, which suit or proceeding might have been in Equity 
 commenced in a County Court, it shall be lawful fi ir any of the may ]? e . ■ 
 parties thereto to apply at Chambers to the judge to whose Court to County 
 the said suit or proceeding shall be attached to have the same trans- Courts which 
 f erred to the County Court or one of the County Courts in which mT S ht nave 
 the same might have been commenced, and such judge shall have 'thereto" " 
 power upon such application, or without such application if he shall 
 see fit, to make an order for such transfer, and thereupon such suit or 
 proceeding shall be carried on in the County Court to which the 
 same shall be ordered to be transferred, and the parties thereto shall 
 have the same right of appeal that they would have had had the suit 
 or proceeding been commenced in the County Court." 
 
 Transfer under this section has been held to be a matter for the 
 discretion of the Vice-Chancellor before whom the cause is pending, 
 with which the < !ourt of Appeal would not interfere. See Linford \ . 
 Gudgeon, Law Rep. 6 < 'h. :»59. 
 
 By s. 10: "It shall be lawful for any person against whom an Actions for 
 action for malicious prosecution, illegal arrest, illegal distress, assault, main 
 false imprisonment, libel, slander, seduction, or other action of Tort P r0M ' " 
 may be brought in a Superior Court to make an affidavit that the in Superior 
 plaintiff has no visible means of paying the costs of the defendant Courts may 
 should a verdict be not found for the plaintiff, and thereupon a judge '"-' remitted 
 of the Court in which the action is brought shall have power to [° County 
 make an order that unless the plaintiff shall, within a time to be fudge.
 
 94 SUPREME ( JUDICATURE ACT, 1873. 
 
 S. Ixviii therein mentioned, give full security for the defendant's costs to the 
 satisfaction of one of the masters of the said Court, or satisfy the 
 judge that he has a cause of action fit to be prosecuted in the Superior 
 < 'ourt, all proceedings in the action shall be stayed, or in the event 
 of the plaintiff being unable or unwilling to give such security, or 
 failing to satisfy the judge as aforesaid, that the cause be remitted 
 for trial before a County Court to be therein named ; and thereupon 
 the plaintiff shall lodge the original writ and the order with the 
 registrar of such County (.'ourt, who shall appoint a day for the 
 hearing of the cause, notice whereof shall be sent by post or other- 
 wise by the registrar to both parties or their attorneys ; and the 
 County Court so named shall have all the same powers and jurisdic- 
 tion with respect to the cause as if both parties had agreed, by a 
 memorandum signed by them, that the said County Court should 
 have power to try the said action, and the same had been commenced 
 by plaint in the said County Court ; and the costs of the parties in 
 respect of the proceeding's subsequent to the order of the judge of the 
 Superior Court shall be allowed according to the scale of costs in use 
 in the County Courts, and the costs of the proceedings in the 
 Superior Court shall be allowed according to the scale in use in such 
 latter Court." 
 
 This section is limited to actions of tort. The application mav be 
 made at any time, but only by the defendant. The effect of the 
 order is to transform the action into a County Court Cause. 
 
 It remains to apply the words of the present section of the Judi- 
 cature Act to those of the County Courts Act. 
 
 As to s. 5, it takes away from the plaintiff the right to costs in 
 x rtain contingencies. If the two sections are read together they 
 • old seem to run thus : If in any action in which any relief is sought 
 which could be given in a county court, the plaintiff shall recover 
 a sum not exceeding £20 if the action is founded on contract, or 
 £10 if founded on tort, &c, &c. 
 
 The 7th, 8th, and 10th sections give power in certain actions of 
 contract, in certain chancery suits and proceedings, and inactions 
 of tort, to remit the matter to the County Court, but by a different 
 process, and subject to different conditions in the cases falling 
 within each section. The new section says in terms that each 
 of these sections shall apply to all actions in which any relief is 
 sought which can lie given in a county court. 
 
 With respect to the relief which can be given in a county court 
 see ss. 88 to 91, post, pp. 109, 110. 
 
 It must be observed that this section applies in terms to actions 
 pending at the commencement of the Act as well as those com- 
 menced afterwards. 
 
 Rules of 68. Subject t<> tin 'provisions of this Art, Her Majesty 
 
 bemadTby mai J " f ""■'? f '""' / "'/'"' r f ?"' COmmem run nt of this Art, b)J 
 Order in ,/)/'/ with tin' ml rlrr of tin' Lord ClianCi tin/; the Lord Chief 
 
 beforecom- Justice of England, ami the other judges of the several 
 "lencement Courts intended to be united and consolidated by this Art, 
 or of tin- greater number of them (of whom the Lord 
 Chancellor and the Lord Chief Justice of England shall 
 be two), cause to be iwepared rules, in this Act referred to 
 as rules of court, providing as follows: — 
 
 (1.) For the regulation of the sittings of the High Court
 
 PART IV. TRIAL AND PROCEDURE. 9-3 
 
 of Justice and the Court of Appeal, and of any s. ixvni. 
 Divisional or other Courts thereof respectively, and 
 of the judges of the said Sigh Court sitting in 
 Chambers ; 
 
 (2.) For the regulation of circuits, including the times 
 and places at which they are to In- holden and the 
 business to be transacted thereat ; 
 
 (3.) For the regulation of all matters consistent with or 
 not expressly determined, by the rules contained in 
 the schedule hereto, tvhich, under and for the purposes 
 of such last-mentioned rules, require to be, or con- 
 veniently may be defined or regulated by further 
 rules of court ; 
 
 (4.) And, generally, for the regulation of any matter* 
 reletting to the practice and procedure of the said 
 Courts respectively, or to the duties of the officers 
 thereof, or to the costs of proceedings therein, or to 
 the conduct of civil or criminal business coming 
 within the cognizance of the said Courts respectively, 
 for which provision is not expressly made by this 
 Act or by the rule* contained in the schedule 
 hereto. 
 
 All rules of court made in pursuance of this section shall Rules to be 
 be laid before each House of Parliament within forty days Parliament, 
 next after the same arc made, if Parliament is thru silting, and may be 
 or if not, within forty days after the then next meeting o/' address from 
 Parliament ; "ml if an address is presented to Her Majesty citherHoust - 
 by either of the said Houses, within the next subsequent 
 forty dags on which the said House shall have sat, praying 
 that tnig such rules mag he annulled, Her Majesty mag 
 
 thereupon lug Order ill Council annul the same ; and the 
 
 rules so annulled shall thenceforth become void and. of no 
 effect, but without prejudice to the validity of any pro- 
 ceedings which mag in tin- maul i me hare been taken 
 under the same. This section shall come into operation 
 immediately on the passing of /his Act. 
 
 This section, as well as ss. 6!), 70, and 74, by which the making of 
 rules was to be governed, are repealed by the Act of 1875, and 
 the following provisions are substituted : — 
 
 S. 16. "The Rules of Court in the first schedule to this Act shall ci >me Rules inFirst 
 into operation at the commencement of this Act, and as to all matters Schedule in 
 to which they extend shall thenceforth regulate the proceedings in substitution 
 the Hi^h ( lourt of Justice and Court of Appeal. But such Rules of vict C L 'gg 7 
 i 'ourt and also all such other Rules of < lourt (if any) as may be made s. 69 and ' 
 after the passing and before the commencement of this Act under Schedule. 
 the authority of the next section may be annulled or altered by the 
 authority by which new Rules of Court may be made after the com- 
 mencement of this Act."
 
 !,,i SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. Ixviii. S. 17. " Her Majesty may at any time after the passing and before 
 
 _— the commencement of this Act, by Order in Council, made upon the 
 
 Provisions as recommendation of the Lord Chancellor, and the Lord Chief Justice 
 
 «fcc, of Rules or England, the Master of the Rolls, the Lord Chief Justice of the 
 
 of Court Common Pleas, the Lord Chief Baron of the Exchequer, and the 
 
 before or Lords Justices of Appeal in Chancery, or any five of them, and the 
 
 commence- °*her judges of the several Courts intended to be united and con- 
 
 ment of the solidated by the principal Act as amended by this Act, or of a majority 
 
 Act,— in of such other Judges, make any further or additional Rides of Court for 
 
 substitution carr yi n g the principal Act and this Act into effect, and in particular 
 
 Vict. c. 66 f° r a U or an y °f the following matters, so far as they are not provided 
 
 ss. 68, 6q. ' for by the Rules in the first Schedule to this Act ; that is to say, 
 
 dule" C £ " (!•) Eor regulating the sittings of the High Court of Justice and 
 
 the Court of Appeal, and of any divisional or other Courts 
 
 thereof respectively, and of the Judges of the said High 
 
 Court sitting in Chambers ; and 
 
 (2.) Eor regulating the pleading, practice, and procedure in the 
 
 High Court of Justice and Court of Appeal ; and 
 (3.) Generally, for regulating any matters relating to the practice 
 and procedure of the said Courts respectively, or to the 
 duties of the officers thereof, or of the Supreme Court, or to 
 the costs of proceedings therein. 
 In substitu- From and after the commencement of this Act, the Supreme 
 non for 36 & Court may at any time, with the concurrence of a majority of the 
 ," lct " c Judges thereof present at any meeting for that purpose held (of 
 which majority the Lord Chancellor shall be one), alter and annul 
 any Rules of Court for the time being in force, and have and exercise 
 the same power of making Rules of Court as is by this section 
 vested in Her Majesty in Council on the recommendation of the 
 said Judges before the commencement of this Act. 
 
 All Rules of Court made in pursuance of this section shall be laid 
 before each House of Parliament within such time, and shall be 
 subject to be annulled in such manner as is in this Act provided. 
 
 All Rules of Court made in pursuance of this section, if made before 
 the commencement of this Act, shall from and after the commence- 
 ment of this Act, and if made after the commencement of this 
 Act shall from and after they come into operation, regulate all 
 matters to which they extend, until annulled or altered in pursuance 
 of this section. 
 
 The reference to certain Judges in section twenty-seven of the 
 principal Act. shall be deemed to refer to the Judges mentioned in 
 this section as the Judges on whose recommendation an Order in 
 ( louncil may be made." 
 
 Additional S. 24. " Where any provisions in respect of the practice or pro- 
 
 power as to cedure of any Courts, the jurisdiction of which is transferred by the 
 regulation principal Act or this Act to the High Court of Justice or the Court 
 and r proce e of Appeal, are contained in any Act of Parliament, Rules of Court 
 dure by rules may be made for modifying such provisions to any extent that may 
 of court. be deemed necessary for adapting the same to the High Court of 
 Justice and the Court of Appeal, without prejudice nevertheless to 
 any power of the Lord Chancellor, with the concurrence of the 
 Treasury, to make any Rules with respect to the Paymaster General, 
 or otherwise. 
 
 Any provisions relating to the payment, transfer, or deposit into, 
 or in, or out of any court of any money or property, or to the dealing 
 therewith, shall, for the purposes of this section, be deemed to be 
 provisions relating to practice and procedure.
 
 PART IV. TRIAL AND PROCEDURE. 97 
 
 The Lord Chancellor, with the concurrence of the Treasury, may s. lxix. 
 from time to time, by order, determine to what accounts and how — 
 
 intituled any such money or property as last aforesaid, whether paid, 
 transferred, or deposited before or after the commencement of this 
 Act, is to be carried, and modify all or any forms relating to such 
 accounts ; and the Governor and Company of the Bank of England, 
 and all other companies, bodies corporate, and persons shall make 
 such entries and alterations in their books as may be directed by 
 the Lord Chancellor, with the concurrence of the Treasury, for the 
 purpose of carrying into effect any such order." 
 
 S. 25. " Every Order in Council and Rule of Court required by Orders and 
 this Act to be laid before each House of Parliament shall be so laid , r-", le , s \° ^ e 
 within forty days next after it is made, if Parliament is then sitting, Parliament 
 or if not, within forty days after the commencement of the then and may be 
 next ensuing session ; and if an address is presented to Her Majesty annulled on 
 by either House of Parliament, within the next subsequent forty days eitherHouse 1 
 on which the said House shall have sat, praying that any such Ride or 
 Order may be annulled, Her Majesty may thereupon by Order in 
 Council annul the same ; and the Rule or Order so annulled shall 
 thenceforth become void and of no effect, but without prejudice to 
 the validity of any proceedings which may in the meantime have 
 been taken under the same. 
 
 This section shall come into operation immediately on the passing 
 of this Act." 
 
 69. The rules contained in the schedule to this Act Rules in 
 (which shall be read and taken as part of this Act) shall r e g uia"e e 
 come into operation immediately on the commencement of procedure 
 
 * till changed 
 
 l //is Act, and, as to all matters to which they extend, shall byotherrules 
 thenceforth regulate the proceedings in the High Court of mencement 
 Justice and the Court if Appeal respectively, unless and of Act. 
 until, by the authority hereinafter in that behalf provided, 
 any of them may be altered or varied ; but siich rules, and 
 also all rides to be made before the commencement of this 
 Act, as hereinbefore mentioned, shall for all the purposes 
 of this Act be rules of court capable of bring annulled or 
 altered by the sunn- authority by which any other rules of 
 court may be made, altered, or annulled after the com- 
 mencement of this Act. 
 
 This section is repealed by the Act of 1875, see note to last 
 section. 
 
 70. All rub's and orders of court which shall be in force Rules of 
 in the Court of Probate, the Court for Divorce and Matri- Divorce' 
 monial Causes, the Admiralty Court, and the London Court Admiralty, 
 of Banlcruptcy respectively at the time of the commencement mptcy 
 
 of this Act, except so far as they are hereby expressly R^esVfthe 
 varied, shall remain and be in force in the High Court 0/ High Court. 
 Justice and in the Court of Appeal respectively in the same 
 manner in all respects us if they had been contained in the 
 schedule to this Act until they shall respectively be altered 
 
 p
 
 98 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. ixxi. or annulled by any rides of Court made after the commence- 
 ment of tli is Act. 
 
 This section is repealed by the Act of 1875, and the following 
 section substituted : — 
 Provision as S. 18. "All Rules and Orders of Court in force at the time of the 
 to Rules of commencement of this Act in the Court of Probate, the Court for 
 Probate, Divorce and Matrimonial Causes, and the Admiralty Court, or in 
 Admiralty 11 relation to appeals from the Chief Judge in Bankruptcy, or from the 
 Courts, being Court of Appeal in Chancery in bankruptcy matters, except so far 
 Rules of the as they are expressly varied by the First Schedule hereto or by Rules 
 High ^- ourt > f Court made by Order in Council before the commencement of 
 tution for 36 this Act, shall remain and be in force in the High Court of Justice 
 & 37 Vict. c. and in the Court of Appeal respectively until they shall respec- 
 66. s. 70. tively be altered or annulled by any Rules of Court made after the 
 commencement of this Act. 
 
 The present Judge of the Probate Court and of the Court for 
 Divorce and Matrimonial Causes, shall retain, and the president for 
 the time being of the Probate and Divorce Division of the High 
 Court of Justice shall have, with regard to non-contentious or 
 common form business in the Probate Court, the powers now con- 
 ferred on the Judge of the Probate Court by the thirtieth section 
 of the twentieth and twenty-first years of Victoria, chapter seventy- 
 seven, and the said Judge shall retain, and the said president shall 
 have, the powers as to the making of rules and regulations conferred 
 by the fifty-third section of the twentieth and twenty-first years of 
 Victoria, chapter eighty-five." 
 
 71. Subject to any rules of court to be made under and 
 by virtue of this Act, tin- practice and 'procedure in all 
 criminal causes and matters whatsoever in the High Court 
 of Justice and in the Court of Appecd respective I//, includ- 
 ing the practice and procedure with respect to Crown Cases 
 Reserved, shall bethe same as the practice and procedure in 
 similar causes and matters before the passing of this Act. 
 
 This section is repealed by the Act of 1875, and the following 
 clause substituted : 
 
 S. 19. "Subject to the First Schedule hereto and any Rules of Court 
 to be made under this Act, the practice and procedure'in all criminal 
 causes and matters whatsoever in the High Court of Justice and in 
 the Court of Appeal respectively, including the practice and pro- 
 cedure with respect to Crown ( lases Reserved, shall be the same as 
 the practice and procedure in similar causes and matters before the 
 tion for 36 & commencement of this Act." 
 37 Vict. c. 66. As to the Court for Crown Cases Eeserved, see s. 47, ante, p. 83. 
 
 72. Nothing in this Act or in the schedule Jiereto, or in 
 any rules of court to be made by virtue hereof, save as far 
 as relates to the poicer of the Court for special, reasons to 
 allow depositions or affidavits to be read, shall affect the 
 mode of giving < vidence by the oral examination of wit- 
 nesses in trials by jury, or the rules of evidence, or the law 
 relating to jurymen or juries. 
 
 This section is repealed by the Act of IS 75, and the following 
 provision substituted : — 
 
 Criminal 
 procedure, 
 subject to 
 future rule 
 to remain 
 unaltered. 
 
 Provision as 
 to criminal 
 procedure, 
 subject to 
 future rules 
 remaining 
 unaltered, — 
 in substitu 
 
 s. 71. 
 
 Act not to 
 
 affect rules 
 of evidence 
 or juries.
 
 PART IV. TRIAL AND PROCEDURE. 99 
 
 S. 20. "Nothing in this Act orinthe First Schedule hereto, or in any g. Ixxiii. 
 Rules of Court to be made under this Act, save as far as relates to the — 
 
 power of the Court for special reasons to allow depositions or Provision as 
 affidavits to be read, shall affect the mode of giving evidence by the affecting 
 oral examination of witnesses in trials by jury, or the rules of rules of 
 evidence, or the law relating to jurymen or juries." evidence or 
 
 As to evidence in general, see orders XXXVII. and XXXVIII., sub'sti'tudon 
 post, pp.264, 266. for 3 6 & 37 
 
 As to trials by jury, see s. 56, ante, p. 86: Order XXXVI., Vict. c. 66. 
 rules 2, 3, 4, 7, 22, 27, post, p. 248, and notes thereto. s - ? 2 - 
 
 73. Save as by this Act, or by any rules of court (whe- Saying of 
 
 ther contained in the schedule to this Art, or to be made procedure of 
 under the authority thereof), is or shall be otherwise pro- Courts when 
 
 7 i . 7 7-77 not mcon- 
 
 vided, all forms ana methods of procedure which at the sistent with 
 commencement of this Act wen- in force in any of the Courts R U s i es . ctor 
 whose jurisdiction is hereby transferred to the said High 
 Court, and to the said Court of Appeal, respectively, under 
 or by virtue of any law, custom, general orders, or rules 
 whatsoever, and which are not inconsistent with flu's Art or 
 with any rah* contained in the said schedule or to be made 
 by virtue of this Act, may continue, to be used and 'prac- 
 tised in the said High Court of Justice, and the said Court 
 of Appeal, respectively, in such and the like cases, and for 
 such and the like purposes, as those to which they would 
 have been applicable in the respective Courts of which the 
 jurisdiction is so transferred, if this Act had not passed. 
 
 This section is repealed by the Act of 1875, and the following 
 substituted : — 
 
 S. 21. " Save as by the principal Act or this Act, or by any Rules of Provision 
 Court, may be otherwise provided, all forms and methods of proce- fo J sa -^^ 
 dure which at the commencement of this Act were in force in any procedure" of 
 of the Courts' whose jurisdiction is by the principal Act or this Act courts when 
 transferred to the said High Court and to said Court of Appeal n . ot incon- 
 respectively, under or by virtue of any law, custom, oreneral order, or ^^ Act or 
 rules whatsoever, and which are not inconsistent with the principal ru lesof 
 Act or this Act or with any Rules of Court, may continue to be used Court,— in 
 and practised, in the said High Court of Justice and the said. Court j^b 51 ' 1 " 110 ' 1 
 of Appeal respectively, in such and the like cases, and for such and v; ct] c g6. 
 the like puqjoses, as those to which they would have been applicable s. 73. 
 in the respective ( '< mrts of which the jurisdiction is so transferred, if 
 the principal Act and this Act had not passed.'' 
 
 S. 22 expressly reserves to any party upon a trial by jury the 
 right to require the judge to leave the issues to the jury with a 
 proper direction in point of law, and allows this right to be enforced 
 by a proceeding analogous to a Bill of Exceptions. As to this see 
 note to s. 46, (tide, p. 82. 
 
 See note at the head of the schedule of rules, post, p. 151; Order 
 LXIL, post, p. 312. 
 
 74. From and after the commencement of this Act, the Powei to 
 Supreme Court nan/ at any time, with the concurrence of a ''j| l ( .,. 1 k' u "i,., 
 majority of the Judges thereof present at any meeting for after com - 
 tJiat purpose held (of which majority the Lord Chancellor of Act. 
 
 F 2
 
 100 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. ix.w. sliatt be one), alter or annul any rules of court for the time 
 being in. force, or make any new rules of court, for tJie pur- 
 pose of regulating all such matters of practice and proce- 
 dure in the Supreme Omrl, or relating to the ■suitors or 
 officers of the sa ill Court, or otherwise, as under the provi- 
 sions of this Art are or man 1"' regulated by rules of court : 
 Provided, that any rule made in the exercise of this power, 
 whether for altering or annulling any then existing rule, or 
 for any other purpose, shall be laid before both Houses of 
 Parliament, within the same Hum, and in the same manner 
 and with the same effect in all respects, as is hereinbefore 
 provided with respect to the said rules to be made before 
 the commencement of this Act, and may be annulled and 
 made void in the same manner as such last-mentioned rules. 
 
 This section is repealed by the Act of 1875, and new provisions 
 are made for rules. See note to s. 68, ante, p. 94. 
 
 Councils of 75. A Council of the Judges of the Supreme Court, of 
 consider which due notice shall be given to all the said judges, shall 
 procedure _ assemble once at least in every year, on such day or days 
 t l ra < tion I f ms as shaR be fixed by the Lord Chancellor, with the concur- 
 justice. rence of the Lord Chief Justice of England, for the purpose 
 of considering the operation of this Act and of the rides of 
 Court for the time being in force, and also the working 
 of the several offices and the arrangements relative to the 
 duties of the officers of the said Courts respectively, and of 
 inquiring and examining into any defects which may appear 
 to exist in the system of procedure or the administration of 
 the law in the said High Court of Justice or the said Court 
 of Appeal, or in any other Court from Avhich any appeal 
 lies to the. said High Court or any Judge thereof, or to the 
 said Court of Appeal : And they shall report annually to 
 one of Her Majesty's Principal Secretaries of State what 
 (if any) amendments or alterations it woidd in their judg- 
 ment lie expedient to make in this Act, or otherwise relating 
 to the administration of justice, and what other provisions 
 (if any) which cannot be carried into effect without the 
 authority of Parliament it woidd be expedient to make for 
 the better administration of justice. Any extraordinary 
 council of the said judges may also at anytime be convened 
 by the Lord Chancellor. 
 
 Acts of Par- 7G. All Acts of Parliament relating to the several 
 relating to Courts and judges, whose jurisdiction is hereby transferred 
 former' to the said High Court of Justice and the said Court of 
 read' as ° * Appeal respectively, or wherein any of such Courts or 
 applying to i UL w s are mentioned or referred to, shall be construed and 
 
 Courts under J ° .'. . 
 
 take effect, so far as relates to anything done or to be done
 
 PART V. OFFICERS AND OFFICES. 101 
 
 after the commencement of this Act, as if the said High s. lxxvii. 
 Court of Justice or the said Court of Appeal, and the 
 Judges thereof, respectively, as the case may be, had been 
 named therein instead of such Courts or judges whose 
 jurisdiction is so transferred respectively ; and in all cases 
 not hereby expressly provided for in -which, under any 
 such Act, the concurrence or the advice or consent of the 
 judge or any judges, or of any number of the judges, of 
 any one or more of the Courts whose jurisdiction is hereby 
 transferred to the High Court of Justice is made necessary 
 to the exercise of any power or authority capable of being 
 exercised after the commencement of this Act, such power 
 or authority may be exercised by and with the concur- 
 rence, advice, or consent of the same or a like number of 
 judges of the said High Court of Justice ; and all general 
 and other commissions, issued under the Acts relating to 
 the Central Criminal Court or otherwise, by virtue whereof 
 any judges of any of the Courts whose jurisdiction is so 
 transferred may, at the commencement of this Act, be 
 empowered to try, hear, or determine any causes or 
 matters, criminal or civil, shall remain and be in full force 
 and effect, unless and until they shall respectively be in 
 due course of law revoked or altered. 
 
 PART V. 
 
 Officers and Offices. 
 
 77. The Queen's Remembrancer, and all Masters, Sec- Transfer of 
 retaries, Registrars, Clerks of Records and Writs, Asso- stl'ff of g 
 ciates, Prothonotaries, Chief and other Clerks, Commis- officers to 
 sioners to take oaths or affidavits, Messengers, and other court™ 6 
 officers and assistants at the time of the commencement of 
 this Act attached to any Court or judge whose jurisdiction 
 is hereby transferred to -the High Court, or to the Court 
 of Appeal, and also all Registrars, Clerks, Officers, and 
 other persons at the time of the commencement of this 
 Act engaged in the ] >r< jparation of commissions or writs, 
 or in the registration of judgments or any other minis- 
 terial duties in aid of, or connected with, any Court, the 
 jurisdiction of which is hereby transferred to the said 
 Courts respectively, shall, from and after the commence- 
 ment of this Act, be attached to the Supreme Court, con- 
 sisting of the said Hi< f h Court of Justice and the said
 
 102 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. ixxvii. Court of Appeal : Provided, that all the duties with 
 respect to Appeals from the Court of Chancery of the 
 County Palatine of Lancaster which are now performed 
 by the Clerk of the Council of the Duchy of Lancaster 
 shall be performed by the RegistrarSj Taxing Masters, and 
 other officers by whom like duties are discharged in the 
 Supreme Court ; and the said Clerk of the Council of the 
 Duchy of Lancaster shall not be an officer attached to the 
 said Court. 
 
 The officers so attached shall have the same rank and 
 In iid their offices by the same tenure and upon the same 
 terms and conditions, and receive the same salaries, and, 
 if entitled to pensions, be entitled to the same pensions, 
 as if this Act had not passed, and any such officer who is 
 removeable by the Court to which he is now attached, shall 
 b i removeable by the Court to which he shall be attached 
 under this Act, or by the majority of the judges thereof. 
 
 The existing registrars and clerks to the registrars in 
 the Chancery Registrar's office shall retain any right of 
 succession secured to them by Act of Parliament, so as to 
 entitle them in that office, or in any substituted office, to 
 the succession to appointments with similar or analogous 
 duties, and with equivalent salaries. 
 
 The business to be performed in the High Court 
 of Justice and in the Court of Appeal respectively, or 
 in any divisional or other Court thereof, or in the cham- 
 bers of any judge thereof, other than that performed 
 by the judges, shall be distributed among the several 
 officers attached to the Supreme Court by this section in 
 such manner as may be directed by rules of court ; and 
 such officers shall perform such duties in relation to such 
 business as may be directed by rules of court, with this 
 qualification, that the duties required to be performed by 
 any officer shall be the same, or duties analogous to those 
 which he performed previously to the passing of this Act ; 
 and, subject to such rules of court, all such officers 
 respectively shall continue to perform the same duties, as 
 nearly as may be, in the same manner as if this Act had 
 not passed. 
 
 All secretaries, clerks, and other officers attached to any 
 existing judge who under the provisions of this Act shall 
 become a Judge of the High Court of Justice, or of the 
 Court of Appeal, shall continue attached to such judge, 
 and shall perform the same duties as those which they 
 have hitherto performed, or duties analogous thereto : and 
 all such last-mentioned officers shall have the same rank 
 and hold their offices by the same tenure, and upon the
 
 PART V. OFFICERS AND OFFICES. 103 
 
 same terms and conditions, and receive the same salaries, s. lxxvii. 
 and, if entitled to pensions, be entitled to the same ~ 
 pensions, as if this Act had not passed : Provided that the 
 Lord Chancellor may, with the consent of the Treasury, 
 increase the salary of any existing officer whose duties are 
 increased by reason of the passing of this Act. 
 
 Upon the occurrence of a vacancy in the office of any 
 officer coming within the provisions of this section, the 
 Lord Chancellor, with the concurrence of the Treasury, 
 may, in the event of such office being considered un- 
 necessary, abolish the same, or may reduce the salary, or 
 alter the designation or duties thereof, notwithstanding 
 that the patronage thereof may be vested in an existing 
 judge. Nothing in this Act contained shall interfere with 
 the office of marshal attending any Commissioner of Assize. 
 
 This section, it will be observed, leaves the business of the Court, 
 so far as the officers are concerned, to be distributed among the 
 various officers by rule, subject only to certain restrictions. The 
 way in which the matter is dealt with in the schedule of rules is 
 this : — Throughout the rules the various things to lie done are 
 merely directed to be done by the proper officer. And in the inter- 
 pretation clause, Order LXIL, "jiroper officer" is defined as 
 follows : — 
 
 " Proper officer" shall, unless and until any rule to the contrary 
 is made, mean an officer to be ascertained as follows : — 
 
 (a.) Where any duty to be discharged under the Act or these 
 rules is a duty which has heretofore been discharged by any 
 officer, such officer shall continue to be the proper officer to 
 discharge the same. 
 (b.) Where any new duty is under the Act or these rules to be 
 discharged, the proper officer to discharge the same shall be 
 such officer, having previously discharged analogous duties, as 
 may from time to time be directed to discharge the same in 
 the case of an officer of the Supreme Court, or the High Court . 
 of Justice, or the Court of Appeal, not attached to any 
 division, by the Lord Chancellor, and in the case of an 
 officer attached to any division by the president of the 
 division, and in the case of an officer attached to any judge, 
 by such judge. 
 By Order LX, Rule 1, post, p. 307, the officers attached to the 
 several Courts, consolidated by the Act, are attached to the corres- 
 donding Divisions of the High Court. By Rule 2 of the same Order, 
 the officers of each Division are to follow all appeals from the 
 Division to the Court of Appeal. 
 
 This clause is amended by s. 34 of the Act of 1875 by the 
 addition of the following provisions: — "Upon the occurrence of 
 any vacancy coming within the provisions of the said section, an 
 appointment shall not lie made thereto for the period of one month 
 without the assent of the Lord Chancellor, given with the concur- 
 rence of the Treasury ; and further, the Lord Chancellor may, with 
 the concurrence of the Treasury, suspend the making any appoint- 
 ment to such office for any period not later than the first day of 
 January one thousand eight hundred and seventy-seven, and may,
 
 104 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. lxxviii. if it be necessary, make provision in such manner as he thinks fit for 
 — the temporary discharge, in the meantime, of the duties of such office." 
 
 <wfof f 78, Tlle existin S Queen's Counsel of the County Palatine 
 Pleas at of Lancaster shall for the future have the same precedence 
 andr^rhlm * n ^ ie coim ty, an d the existing prothonotaries and district 
 prothonotaries, and other officers of the Court of Common 
 Pleas at Lancaster and the Court of Pleas at Durham 
 respectively, and their successors, shall (subject to rules of 
 court) perform the same or the like duties and exercise the 
 same or the like powers and authorities in respect of all 
 causes and matters depending in those Courts respectively 
 at the commencement of this Act, and also in respect of all 
 causes and matters which may afterwards he commenced in 
 the High Court of Justice in the manner heretofore practised 
 in the said Court of Common Pleas at Lancaster and the 
 said Court of Pleas at Durham respectively, as at the 
 commencement of this Act may lawfully he performed and 
 exercised by them respectively under any Acts of Parliament 
 for the time being in force with respect to the said last- 
 mentioned Courts respectively, or under any other authority; 
 and all powers in respect of any such prothonotaries, 
 district prothonotaries, or other officers of the Court of 
 Common Pleas at Lancaster, which at the commencement 
 of this Act may be vested by law in the Chancellor of the 
 Duchy and County Palatine of Lancaster, under any such 
 Act of Parliament or otherwise, and to which the concur- 
 rence of any other authority may not be required, shall and 
 may be exercised after the commencement of this Act by 
 the Lord Chancellor ; and all the powers of making or 
 publishing any general rules or orders with respect to 
 the powers or duties of such prothonotaries, district 
 prothonotaries, or other officers of the said Court of 
 Common Pleas at Lancaster or the said Court of Pleas at 
 Durham, or with respect to the business of the said Court 
 respectively, or with respect to any fees to be taken 
 therein, or otherwise with reference thereto, which under 
 any such Act as aforesaid or otherwise by law may be 
 vested in the Chancellor of the Duchy and County 
 Palatine of Lancaster, with the concurrence of any 
 judges or judge, or in any other authority, shall be exer- 
 cised after the commencement of this Act in the manner 
 hereby provided with respect to rules of court to be made 
 under this Act, and (in all cases in which the sanction of 
 the Treasury is now required) with the sanction of the 
 Treasury ; and all provisions made by any such Acts as 
 aforesaid, or otherwise for or with respect to the remunera-
 
 PART V. OFFICERS AND OFFICES. 105 
 
 tion of any such prothonotaries, district prothonotaries, s. lxxix. 
 
 or other officers as aforesaid, shall remain and be in full 
 force and effect until the same shall be altered under the 
 provisions of this Act, or otherwise by lawful authority. 
 
 As to the Fee Fund of the Courts of Lancaster and Durham, and 
 the salaries of the officers of those Courts, see s. 26 of the Act of 
 1875, post, p. 143. 
 
 79. Each of the Judges of the High Court of Justice, Personal 
 and of the ordinary Judges of the Court of Appeal, f u ture S ° 
 appointed respectively after the commencement of this J ud e es - 
 Act, and also such of the ordinary judges of the Court of 
 Appeal as have no similar officers at the time of the com- 
 mencement of this Act, shall have such officers as herein- 
 after mentioned, who shall be attached to his person as 
 such Judge, and appointed and removeable by him at his 
 pleasure, and who shall respectively receive the salaries 
 herein-after mentioned (that is to say) : 
 
 To the Lord Chief Justice of England, the Master of 
 
 the Rolls, the Lord Chief Justice of the Common 
 
 Pleas, and the Lord Chief Baron of the Exchequer, 
 
 respectively, there shall be attached a secretary, whose 
 
 salary shall be five hundred pounds per annum, a 
 
 principal clerk, whose salary shall be four hundred 
 
 pounds per annum, and a junior clerk, whose salary 
 
 shall be two hundred pounds per annum. To each 
 
 of the other Judges of the High Court of Justice, 
 
 and to each of the ordinary Judges of the Court of 
 
 Appeal, there shall be attached a principal clerk, 
 
 whose salary shall be four hundred pounds per 
 
 annum, and, in the case of the Judges of the High 
 
 Court of Justice, a junior clerk, whose salary shall be 
 
 two hundred pounds per annum. 
 
 Such one or more of the officers so attached to each of 
 
 the said Judges, as such Judge, shall think fit, shall be 
 
 required, while in attendance on such Judge, to discharge 
 
 without further remuneration, the duties of crier in Court 
 
 or on Circuit, or of usher or train bearer. The duties of 
 
 chamber clerks, so far as relates to business transacted in 
 
 chambers by Judges appointed after the commencement of 
 
 this Act, shall be performed by officers of the Court in the 
 
 permanent civil service of the Crown. 
 
 By the Act of 1875, s. 35, "Be it enacted that any person who at 
 the time of the commencement of this Act, shall hold the office of 
 chamber clerk, shall be eligible at any time thereafter for appoint- 
 ment to the lihe office, anything in the principal Act to the contrary 
 notwithstanding ; and that if any such person shall be so appointed 
 after the commencement of this Act, he shall, if the salary assigned 
 to such office by or under the principal Act be less than the salary 
 
 p 5
 
 10G 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. Ixxx. 
 
 Provi<ions as 
 to officers 
 paid out of 
 fees. 
 
 received by him at the time of the commencement of this Act, be 
 entitled to receive a salary not less than that so formerly received 
 by him, so long as he shall retain such office, but shall not be entitled 
 to receive or claim any pension in respect of his service, unless the 
 Treasury, in its absolute discretion, shall think fit to sanction the 
 same." 
 
 80. Any existing officer attached to any existing Court 
 or judge whose jurisdiction is aholished or transferred by 
 this Act, who is paid out of fees, and whose emoluments 
 are affected by the passing of this Act shall be entitled to 
 prefer a claim to the Treasury ; and the Treasury, if it 
 shall consider his claim to be established, shall have power 
 to award to him such sum, either by way of compensation, 
 or as an addition to his salary, as it thinks just, having 
 regard to the tenure of office by such officer and to the 
 other circumstances of the case. 
 
 the U s b tatut of 81. Where a doubt exists as to the position under this 
 officers to be Act of any existing officer attached to any existing Court 
 by t ru™ ned or J u ^o e affected by this Act, such doubt may be deter- 
 mine;! by rules of court : subject to this proviso, that 
 such rules of court shall not alter the tenure of office, 
 
 of such officer, or 
 other than duties 
 
 Powers of 
 Commis- 
 sioners to 
 administer 
 oaths. 
 
 Official 
 Referees to 
 be ap- 
 pointed. 
 
 rank, pension (if any), or salary 
 
 require him to perform any duties 
 
 analogous to those which he has already performed. 
 
 82. Every person who at the commencement of this 
 Act shall be authorized to administer oaths in any of the 
 Courts whose jurisdiction is hereby transferred to the 
 High Court of Justice, shall be a commissioner to 
 administer oaths in all causes and matters whatsoever 
 wliich may from time to time be depending in the said 
 High Court or in the Court of Appeal. 
 
 A uniform scale of fees to be taken by all commissioners provided 
 by Additional Rules, 2 M st, p. 409. 
 
 83. There shall be attached to the Supreme Court 
 permanent officers to be called official referees, for the 
 trial of such questions as shall under the provisions of 
 this Act be directed to be tried by such referees. The 
 number and the qualifications of the persons to be so 
 appointed from time to time, and the tenure of their 
 offices, shall be determined by the Lord Chancellor, with 
 the concurrence of the presidents of the divisions of the 
 High Court of Justice, or a majority of them (of which 
 majority the Lord Chief Justice of England shall be one), 
 and with the sanction of the Treasury. Such official 
 referees shall perform the duties entrusted to them in
 
 PART V. OFFICERS AND OFFICES. 107 
 
 such places, whether in London or in the country, as may s. Lxxxiv. 
 from time to time be directed or authorised by any order 
 of the said High Court or of the Court of Appeal ; and all 
 proper and reasonable travelling expenses incurred by 
 them in the discharge of their duties shall be paid by the 
 Treasury out of moneys to be provided by Parliament. 
 
 As to the matters\which may be referred to the official referees, 
 and the mode of procedure before them, see ss. 56, 57, 58 and 59, 
 ante, p. 86 ; Order XXXVI., Rules 30 to 34, post, p. 256, and 
 note thereto. As to their salaries see s. 85, 2>os£, p. 108. 
 
 84. Subject to the provisions in this Act contained with Duties, ap- 
 respect to existing officers of the Courts whose jurisdiction ^J? removal 
 is hereby transferred to the Supreme Court, there shall be ° f officers of 
 attached to the Supreme Court such officers as the Lord Court. 
 Chancellor, with the concurrence of the presidents of the 
 divisions of the High Court of Justice, or the major part 
 of them, of which majority the Lord Chief Justice of 
 England shall be one, and with the sanction of the 
 Treasury, may from time to time determine. 
 
 Such of the said several officers respectively as may be 
 thought necessary or proper for the performance of any 
 special duties, with respect either to the Supreme Court 
 generally, or with respect to the High Court of Justice or 
 the Court of Appeal, or with respect to any one of the 
 divisions of the said High Court, or with respect to any 
 particular judge or judges of either of the said Courts, 
 may by the same authority, and with the like sanction as 
 aforesaid, be attached to the said respective Courts, divi- 
 sions, and judges accordingly. 
 
 All officers assigned to perforin duties with respect to 
 the Supreme Court generally, or attached to the High 
 Court of Justice or the Court of Appeal, and all commis- 
 sioners to take oaths or affidavits in the Supreme Court, 
 shall be appointed by the Lord Chancellor. 
 
 All officers attached to the Chancery Division of the 
 said High Court, who have been heretofore appointed by 
 the Master of the Rolls, shall continue, while so attached, 
 to be appointed by the Master of the Rolls. 
 
 All other officers attached to any division of the said 
 High Court shall be appointed by the president of that 
 division. 
 
 All officers attached to any judge shall be appointed by 
 the judge to whom they are attached. 
 
 Any officer of the Supreme Court (other than such 
 officers attached to the person of a judge as are herein 
 before declared to be immoveable by him at his pleasure)
 
 108 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. brxxv. may be removed by the person having the right of appoint- 
 ment to the office held by him, with the approval of the 
 Lord Chancellor, for reasons to be assigned in the order of 
 removal. 
 
 The authority of the Supreme Court over all or any of 
 its officers may be exercised in and by the said High 
 Court and the said Court of Appeal respectively, and also 
 in the case of officers attached to any division of the High 
 Court by the president of such division, with respect to 
 any duties to be discharged by them respectively. 
 
 Salaries and 85. There shall be paid to every official referee and other 
 
 officer " S ° f salaried officer appointed in pursuance of this Act such 
 
 salary out of moneys to be provided by Parliament as 
 
 may be determined by the Treasury with the concurrence 
 
 of the Lord Chancellor. 
 
 An officer attached to the person of a judge shall not 
 be entitled to any pension or compensation in respect of 
 his retirement from or the abolition of his office, except 
 so far as he may be entitled thereto independently of this 
 Act ; but every other officer to be hereafter appointed in 
 pursuance of this part of this Act, and whose whole time 
 shall be devoted to the duties of his office, shall be deemed 
 to be employed in the permanent Civil Service of Her 
 Majesty, and shall be entitled, as such, to a pension or 
 compensation in the same manner, and upon the same 
 terms and conditions, as the other permanent civil servants 
 of Her Majesty are entitled to jiension or compensation. 
 
 86. Subject to the provisions hereinbefore contained, 
 iiier- any rights of patronage and other rights or powers inci- 
 ^dcd P f<£. ( ^ eu ^ ^° an y Court, or to the office of any judge of any 
 Court whose jurisdiction is transferred to the said High 
 Court of Justice, or to the said Court of Appeal, in 
 respect of which rights of patronage or other rights or 
 powers no provision is or shall be otherwise made by or 
 under the authority of this Act, shall be exercised as 
 follows, that is to say : if incident to the office of any 
 existing judge shall continue to be exercised by such 
 existing judge during his continuance in office as a judge 
 of the said High Court or of the Court of Appeal, and 
 after the death, resignation, or removal from office of such 
 existing judge shall be exercised in such manner as Her 
 Majesty may by Sign Manual direct. 
 
 so;;, nors 87. From and after the commencement of this Act all 
 
 and attor- persons admitted as solicitors, attorneys, or proctors of or 
 
 bylaw empowered to practise in any Court, the jurisdiction 
 
 Pal 
 
 x< nac
 
 PART VI. JURISDICTION OF INFERIOR COURTS. 109 
 
 of which is hereby transferred, to the High Court of s. i.vxwiii. 
 Justice or the Court of Appeal, shall be called solicitors 
 of the Supreme Court, and shall be entitled to the same 
 privileges and be subject to the same obligations, so far as 
 circumstances will permit, as if this Act had not passed :_ 
 and all persons who from time to time, if this Act had not 
 passed, would have been entitled to be admitted as 
 solicitors, attorneys, or proctors of or been by law em- 
 powered to practise in any such Courts, sliall be entitled to 
 be admitted and to be called solicitors of the Supreme 
 Court, and shall be admitted by the Master of the Rolls, 
 and shall, as far as circumstances will permit, be entitled 
 as such solicitors to the same privileges, and be subject 
 to the same obligations as if this Act had not passed. 
 
 Any solicitors, attorneys, or proctors to whom this 
 section applies shall be deemed to be officers of the 
 Supreme Court ; and that court, and the High Court of 
 Justice, and the Court of Appeal respectively, or any 
 division or judge thereof, may exercise the same jurisdic- 
 tion in respect of such solicitors or attorneys as any one of 
 Her Majesty's superior courts of law or equity might pre- 
 viously to the passing of this Act have exercised in respect 
 of any solicitor or attorney admitted to practice therein. 
 
 Section 14 of the Act of 1875, post, p. 134 enacts, with reference 
 to this section, as follows : — 
 
 S. 14. "Whereas under s. 87 of the principal Act, solicitors and Amendment 
 attorneys will, after the commencement of that Act, he called °f. 3 6 & 37 
 solicitors of the Supreme Court : Be it therefore enacted that — g _ ^ s j 
 
 The registrar of attorneys and solicitors in England shall be enactments 
 called the Registrar of Solicitors, and the Lord Chief Justice of relating to 
 England, the Master of the Rolls, the Lord Chief Justice of the attorne y s - 
 Court of Common Pleas, and the Lord Chief Baron, or any two of 
 them, may, from time to time, by regulation adapt any enactments 
 relating to attorneys, and any declaration, certificate, or form re- 
 quired under those enactments to the solicitors of the Supreme 
 Court under s. 87 of the principal Act." 
 
 PART VI. 
 
 Jurisdiction of Inferior Courts. 
 
 88. It shall be lawful for Her Majesty from time to Power by 
 time by Order in Council to confer on any inferior Court coundUo 
 of civil jurisdiction, the. same .jurisdiction in equity and in confer jurfs- 
 admiralty respectively, as any County Court now has, or inferior " 
 may hereafter have, and such jurisdiction, if and when Courts - 
 conferred, sliall be exercised in the manner by this Act 
 directed.
 
 110 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 S. lxxxix. 
 
 Powers of 
 
 inferior 
 
 Courts 
 
 having 
 
 Equity and 
 
 Admiralty 
 
 jurisdiction. 
 
 Counter- 
 claims in 
 inferior 
 Courts, and 
 transfers 
 therefrom. 
 
 89. Every inferior Court which now has or which may- 
 after the passing of this Act have jurisdiction in equity, 
 or at law and in equity, and in admiralty respectively, 
 shall, as regards all causes of action within its jurisdiction 
 for the time "being, have power to grant, and shall grant in 
 any proceeding hefore such Court, such relief, redress, or 
 remedy, or combination of remedies, either absolute or 
 conditional, and shall in every such proceeding give such 
 and the like effect to every ground of defence or counter 
 claim, equitable or legal (subject to the provision next 
 hereinafter contained), in as fvdl and ample a manner as 
 might and ought to be done in the like case by the High 
 Court of Justice. 
 
 See s. 24, ante, p. 57, and notes thereto. 
 
 90. Where in any proceeding before any such inferior 
 Court any defence or counter claim of the defendant 
 involves matter beyond the jurisdiction of the Court, such 
 defence or counter claim shall not effect the competence or 
 the duty of the Court to dispose of the whole matter in 
 controversy so far as relates to the demand of the plaintiff 
 and the defence thereto, but no relief exceeding that 
 -which the Court has jurisdiction to administer shall be 
 given to the defendant upon any such counter claim : 
 Provided always, that in such case it shall be lawful for 
 the High Court, or any division or judge thereof, if it 
 shall be thought fit, on the application of any party to 
 the proceeding, to order that the whole proceeding be 
 transferred from such inferior Court to the High Court, 
 or to any division thereof; and in such case the record in 
 such proceeding shall be transmitted by the registrar, or 
 other proper office, of the inferior Court to the said High 
 Court ; and the same shall thenceforth be continued and 
 prosecuted in the said High Court as if it had been 
 originally commenced therein. 
 
 Rules of law 
 to apply to 
 inferior 
 Courts. 
 
 91. The several rules of law enacted and declared by 
 this Act shall be in force and receive effect in all Courts 
 whatsoever in England, so far as the matters to which 
 such rules relate shall be respectively cognizable by such 
 
 Courts. 
 
 See s. 25, ante, p. 61, and notes thereto.
 
 PART VII. MISCELLANEOUS PROVISIONS. Ill 
 
 S. xcii. 
 
 PART VII. 
 
 Miscellaneous Provisions. 
 
 1)2. All books, documents, papers, and chattels in the Transfer of 
 possession of any Court, the jurisdiction of which is papers to 
 hereby transferred to the High Court of Justice or to the |"^ me 
 Court of Appeal, or of any officer or person attached to 
 any such Court, as such officer, or by reason of his being 
 so attached, shall be transferred to the Supreme Court, 
 and shall be dealt with by such officer or person in such 
 manner as the High Court of Justice or the Court of 
 Appeal may by order direct ; and any person failing to 
 comply with any order made for the purpose of giving 
 effect to this section shall be guilty of a contempt of the 
 (Supreme Court. 
 
 93. This Act, except as herein is expressly directed, Saving as to 
 shall not, unless or until other commissions are issued in c CU1 
 pursuance thereof, affect the circuits of the judges or the 
 issue of any Commissions of Assize, Nisi Prius, Oyer and 
 Terminer, Gaol Delivery, or other commissions for the 
 discharge of civil or criminal business on circuit or other- 
 wise, or any patronage vested in any judges going circuit, 
 or the position, salaries, or duties of any officers transferred 
 to the Supreme Court who are now officers of the Superior 
 Courts of Common Law, and who perform duties in 
 relation to either the civil or criminal business transacted 
 (in circuit. 
 
 By s. 23 of the Act of 1875, post, p. 138, power is given to 
 the <Jueenin Council to alter the existing circuits and make the 
 necessary changes incidental thereto. 
 
 As to the jurisdiction of judges and commissioners on circuit, 
 see ss. 26, 29, 37, ante, pp. 68, 69, 77, and notes thereto. 
 
 As to the Counties Palatine, see s. 99, post, p. 112. 
 
 94 This Act, except so far as herein is expressly Saving as to 
 directed, shall not affect the office or position of Lord ce °i or . 
 Chancellor ; and the officers of the Lord Chancellor shall 
 continue attached to him in the same manner as if this 
 Act hud not passed ; and all duties, which any officer of 
 the Court of Chancery may now be required to perform in 
 aid of any duty whatsoever of the Lord Chancellor, may 
 in like manner be required to be performed by such officer 
 when transferred to the Supreme Court, and by his suc- 
 cessors.
 
 112 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. xcv. 95. This Act, except so far as is herein expressly 
 
 Saving as to directed, shall not affect the offices, position, or functions 
 Chancellor of the Chancellor of the County Palatine of Lancaster. 
 
 ofLancaster. 
 
 The Court of the Chancellor of the Duchy of Lancaster is not 
 affected by the Act ; s. 16, ante, p. 51, and note thereto. But 
 appeals from that Court will be to the Court of Appeal ; s. 18, ante, 
 p. 53. By s. 77, ante, p. 101, the Clerk to the Council of the 
 Duchy is not to be an officer of the Supreme Court ; his duties in 
 respect of appeals are to be discharged by the officers of the Court. 
 All power over officers of the Court of Common Pleas of Lancaster 
 hitherto exercised by the Chancellor of the Duchy is transferred to 
 the Lord Chancellor, s. 78, ante, p. 103. And the power of making 
 rules to bind them, to the same body by which rules for the Supreme 
 Court may be framed, Ibid. 
 
 Saving as to 96. The Chancellor of the Exchequer shall not be a 
 of the C Ex°- r Judge of the High Court of Justice, or of the Court of 
 ch a qU h r -ft- -^PP ea b anc l shall cease to exercise any judicial functions 
 ' hitherto exercised by him as a Judge of the Court of 
 Exchequer ; but save as aforesaid he shall remain in the 
 same position as to duties and salary, and other incidents 
 of his office, as if this Act had not passed. The same 
 order and course with respect to the appointment of 
 sheriffs shall be used and observed in the Exchequer Divi- 
 sion of the said High Court as has been heretofore used 
 and observed in the Court of Exchequer. 
 
 Saving as to 97 Xothing in this Act contained shall affect the office 
 Treasurer of Lord Treasurer, except that any Lord Treasurer shall 
 rheRecefpt f no * hereafter exercise any judicial functions hitherto 
 of Ex- exercised by him as a Judge of the Court of Exchequer; 
 
 and nothing in this Act shall affect the office of the 
 
 Receipt of the Exchequer. 
 
 Provision 98. AVhen the great seal is in commission, the Lords 
 
 Seafbeingin Commissioners shall represent the Lord Chancellor for the 
 commission, purposes of this Act, save that as to the Presidency of the 
 Court of Appeal, and the appointment or approval of 
 officers, or the sanction to any order for the removal of 
 officers, or any other act to which the concurrence or pre- 
 sence of the Lord Chancellor is hereby made necessary, 
 the powers given to the Lord Chancellor by this Act may 
 be exercised by the Senior Lord Commissioner for the 
 time being. 
 
 Provision as 99. From and after the commencement of this Act, the 
 
 missis's in Counties Palatine of Lancaster and Durham shall respec- 
 
 Counties tively cease to be Counties Palatine, so far as respects the 
 
 issue of Commissions of Assize, or other like Commissions,
 
 PART VII. MISCELLANEOUS PROVISIONS. 113 
 
 but not further or otherwise ; and all such Commissions s. c. 
 may be issued for the trial of all causes and matters within 
 such counties respectively in the same manner in all re- 
 spects as in any other counties of England and "Wales. 
 
 100. In the construction of this Act, unless there is interpreta- 
 anything in the subject or context repugnant thereto, the tlonofterms - 
 several words hereinafter mentioned shall have, or include, 
 the meanings following (that is to say) : 
 
 " Lord Chancellor" shall include Lord Keeper of the 
 Great Seal. 
 
 " The High Court of Chancery" shall include the Lord 
 Chancellor. 
 
 " The Court of Appeal in Chancery " shall include the 
 Lord Chancellor as a Judge on rehearing or appeal. 
 
 " London Court of Bankruptcy " shall include the Chief 
 Judge in Bankruptcy. 
 
 " The Treasury " shall mean the Commissioners of Her 
 Majesty's Treasury for the time being, or any two 
 of them. 
 
 " Rules of Court " shall include forms. 
 
 " Cause" shall include any action, suit, or other original 
 proceeding between a plaintiff and a defendant, 
 and any criminal proceeding by the Crown. 
 
 " Suit" shall include action. 
 
 " Action" shall mean a civil proceeding commenced by 
 writ, or in such other manner as may be prescribed 
 by rules of court ; and shall not include a crimi- 
 nal proceeding by the Crown. 
 
 " Plaintiff " shall include every person asking any relief 
 (otherwise than by way of counter-claim as a 
 defendant) against any other person by any form 
 of proceeding, whether the same be taken by action, 
 suit, petition, motion, summons, or otherwise. 
 
 " Petitioner " shall include every person making any 
 application to the Court, either by petition, motion, 
 or summons, otherwise than as against any defen- 
 dant. 
 
 " Defendant " shall include every person served with 
 any writ of summons or process, or served with 
 notice of, or entitled to attend any proceedings. 
 
 " Party " shall include every person served with notice 
 of, or attending any proceeding, although not 
 named on the record. 
 
 " Matter " shall include every proceeding in the Court 
 not in a cause.
 
 114 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 s. c. " Pleading " shall include any petition or summons, and 
 
 also shall include the statements in writing of the 
 claim or demand of any plaintiff, and of the 
 defence of any defendant thereto, and of the reply 
 of the plaintiff t< > any counter claim of a defendant. 
 
 " Judgment " shall include decree. 
 
 " Order" shall include rule. 
 
 " Oath" shall include solemn affirmation and statutory 
 declaration. 
 
 " Crown Cases Reserved " shall mean such questions of 
 law reserved in criminal trials as are mentioned in 
 the Act of the eleventh and twelfth years of Her 
 Majesty's reign, chapter seventy-eight. 
 
 " Pension " shall include retirement and superannua- 
 tion allowance 
 
 " Existing " shall mean existing at the time appointed 
 for the commencement of this Act. 
 
 SCHEDULE* 
 
 Eules of Procedure. 
 
 Form of 
 action in 
 High Court, 
 
 Form of Action. 
 
 1. All actions which have hitherto been commenced by writ in 
 the Superior Courts of Common Law at Westminster, or in the 
 Court of ( 'ommon Pleas at Lancaster, or in the Court of Pleas at 
 Durham, and all suits which have hitherto been commenced by bill 
 or information in the High Court of Chancery, or by a cause in 
 rem or in personam in the High Court of Admiralty, or by citation 
 or otherwise in the Court of Probate, shall be instituted in the High 
 Court of Justice by a proceeding to be called an action. 
 
 All other proceedings in and applications to the High Court may, 
 subject to rules of Court, be taken and made in the same manner as 
 they would have been taken and made in any Court in which any 
 proceeding or application of the like kind could have been taken or 
 made if this Act had not passed. 
 
 Writ of Summons. 
 Actions to be 2. Every action in the High Court shall be commenced by a writ 
 
 commenced 
 by writ 
 
 of summons, which shall be indorsed with a statement of the nature 
 of the claim made, or of the relief or remedy required in the action, 
 and which shall specify the division of the High Court to which it 
 is intended that the action should be assigned. 
 
 * The whole of this Schedule is repealed by the Act of 1875. The rules 
 contained in it, are incorporated almost, but not quite, in every instance 
 verbatim in the Schedule of rules appended to that Act, post, p. 151.
 
 SCHEDULE, 1873. 115 
 
 3. Forms of writs and of indorsements thereon, applicable to the Form of writ, 
 several ordinary causes of action, shall be prescribed by Rules of 
 
 Court, and any costs incurred by the use of any more prolix or 
 other forms shall be borne by the party using the same, unless the 
 Court shall otherwise direct. 
 
 4. No service of writ shall be required when the defendant, by Acceptance 
 his solicitor, agrees to accept service, and enters an appearance. service. 
 
 5. When service is required the writ shall, wherever it is prac- Service of 
 ticable, be served in the manner in which personal service is now wnti 
 made, but if it be made to appear to the Court or to a Judge that 
 
 the plaintiff is from any cause unable to effect prompt personal 
 service, the Court or Judge may make such order for substituted or 
 other service, or for the substitution of notice for service, as may 
 seem just. 
 
 6. Whenever it appears fit to the Court or to a Judge in a case in Service out 
 which the cause of action has arisen within the jurisdiction, or is ? f '."<:. . 
 properly cognizable against a defendant within the jurisdiction, that Jurls lc 1011 ' 
 any person out of the jurisdiction of the Court shall be served with 
 
 the writ or other process of the Court, the Court or Judge may order 
 such service, or such notice in lieu of service, to be made or given in 
 such manner and on such terms as may seem just. 
 
 7. In all actions where the plaintiff seeks merely to recover a debt Special in- 
 or liquidated demand in money, payable by the defendant, with or particulars of 
 without interest, arising upon a contract, express or implied, as, for debts or 
 instance, on a bill of exchange, promissory note, cheque, or other liquidated 
 simple contract debt, or on a bond or contract under seal for pay- eman s - 
 ment of a liquidated amount of money, or on a statute where the sum 
 
 sought to be recovered is a fixed sum of money or in the nature of a 
 
 debt, or on a guaranty, whether under seal or not, where the claim 
 
 against the principal is in resj)ect of such debt or liquidated demand, See C. L. P. 
 
 bill, cheque, or note, or on a trust, the writ of summons may be Act » l8 5 2 > ss. 
 
 specially indorsed with the particulars of the amount sought to be 25, 27 ' 
 
 recovered, after giving credit for any payment or set off. 
 
 In case of non-appearance by the defendant where the writ of 
 summons is so specially indorsed, the plaintiff may sign final judg- 
 ment for any sum not exceeding the sum indorsed on the writ, 
 together with interest at the rate specified, if any, to the date of the 
 judgment, and a sum for costs, but it shall be lawful for the Court 
 or a Judge to set aside or vary such judgment upon such terms as 
 may seem just. 
 
 Where the defendant appears on a writ of summons so specially 
 indorsed, the plaintiff may, on affidavit verifying the cause of action, 
 and swearing that in his belief there is no defence to the action, call 
 on the defendant to show cause before the Court or a Judge why the 
 plaintiff should not be at liberty to sign final judgment for the 
 amount so indorsed, together with interest, if any, and costs; and 
 the ( lourt or Judge may, unless the defendant, by affidavit or other- 
 wise, satisfy the Court or Judge that he lias a good defence to the 
 action on the merits, or disclose such facts as the Court or Judge 
 may think sufficient to entitle him to be permitted to defend the 
 action, make an order empowering the plaintiff to sign judgment 
 accordingly. Permission to defend the action may lie granted to the 
 defendant on such terms and conditions, if any, as the Judge or 
 Court may think just.
 
 116 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Special in- 8. In all cases of ordinary account, as, for instance, in the case of 
 
 dorsement of a partnership or executorship or ordinary trust account, where the 
 particulars in pl a i n tiff, in the first instance, desires to have an account taken, the 
 account. vrrib of summons shall be indorsed with a claim that such account 
 be taken. 
 
 In default of appearance on such summons, and after appearance, 
 unless the defendant, by affidavit or otherwise, satisfy the Court or a 
 Judge that there is some preliminary question to be tried, an order 
 for the account claimed, with all directions now usual in the Court 
 of Chancery in similar cases, shall be forthwith made. 
 
 Parti 
 
 Mis-joinder 
 or non- 
 joinder of 
 parties. 
 
 9. No action shall be defeated by reason of the misjoinder of 
 parties, and the Court may in every action deal with the matter in 
 controversy so far as regards the rights and interests of the parties 
 actually before it. The Court or a Judge may, at any stage of the 
 proceedings, either upon or without the application of either party, 
 in the manner prescribed by Rules of Court, and on such terms as may 
 appear to the Court or a Judge to be just, order that the name or 
 names of any party or parties, whether as plaintiffs or as defendants, 
 improperly joined be struck out, and that the name or names of any 
 party or parties, whether plaintiffs or defendants, who ought to have 
 been joined, or whose presence before the Court may be necessary 
 in order to enable the Court effectually and completely to adjudi- 
 cate upon and settle all the questions involved in the action, be added. 
 No person shall be added as a plaintiff suing without a next friend, 
 or as the next friend of a plaintiff under any disability, without his 
 own consent thereto. All parties whose names are so added as 
 defendants shall be served with a summons or notice in such manner 
 as may be prescribed by Rules of Court or by any special order, and 
 the proceedings as against them shall be deemed to have begun only 
 on the service of such summons or notice. 
 
 Represen- 
 tation of 
 
 10. Where there are numerous parties having the same interest in 
 one action, one or more of such parties may sue or be sued, or may 
 P art . le ^ be authorised by the Court to defend in such action, on behalf or 
 
 interest. f° r * ne benefit of all parties so interested. 
 
 11. Any two or more persons claiming or being liable as co- 
 partners may sue or be sued in the name of their respective firms, 
 if any ; and any party to an action may in such case apply by 
 summons to a Judge in Chambers for a statement of the names of 
 the persons who are co-partners in any such firm, to be furnished in 
 such manner, and verified on oath or otherwise, as the Judge may 
 direct. 
 
 Power to de- 
 termine 
 questions 
 as against 
 third parties. 
 
 12. Where a defendant is or claims to be entitled to contribution 
 or indemnity, or any other remedy or relief over against any other 
 person, or where from an other cause it appears to the Court or a 
 Judge that a question in the action should be determined not only as 
 between the plaintiff and defendant, but as between the plaintiff, 
 defendant, and any other person, or between any or either of them, 
 the Court or a Judge may on notice being given to such last-men- 
 tioned person, in such manner and form as may be prescribed by 
 Rules of Court, make such order as may be proper for having the 
 question so determined.
 
 SCHEDULE, 1873. 117 
 
 1 3. Where in any action, whether founded upon contract or Provision for 
 otherwise, the plaintiff is in doubt as to the person from whom he case of doubt 
 is entitled to redress, he may, in such manner as may be prescribed pa r t t ° e ^' oper 
 by Rules of Court, or by any special order, join two or more defen- 
 dants, to the intent that in such action the question as to which, if 
 
 any, of the defendants is liable, and to what extent may be deter- 
 mined as between all parties to the action. 
 
 14. Trustees, executors, and administrators may sue and be sued Trustees, 
 on behalf of or as representing the property or estate of which they execu - 
 are trustees or representatives, without joining any of the parties ' 
 beneficially interested in the trust or estate, and shall be considered 
 
 as representing such parties in the action ; but the Court or a Judge 
 may, at any stage of the proceedings, order any of such parties to be 
 made parties to the action, either in addition to or in lieu of the 
 previously existing parties thereto. 
 
 15. Married women and infants may respectively sue as plaintiffs Actions by 
 by their next friends, in the manner practised in the Court of married 
 Chancery before the passing of this Act ; and infants may, in like ^f^. a " ( 
 manner, defend any action by their guardians appointed for that 
 purpose. Married women may also, by the leave of the Court or a 
 Judge, sue or defend without their husbands and without a next 
 
 friend, on giving such security (if any) for costs as the Court or a 
 Judge may require. 
 
 16. The plaintiff may, at his option, join as parties to the same Parties 
 action all or any of the persons severally, or jointly and severally, where 
 liable on any one contract, including parties to bills of exchange severa 'i i; a i,;_ 
 and promissory notes. lities on the 
 
 same con- 
 
 17. An action shall not become abated by reason of the marriage, tract - 
 death, or bankruptcy of any of the parties, if the cause of action Abatement, 
 survive or continue and shall not become defective by the assign- 
 ment, creation, or devolution of any estate or title pendente lite. 
 
 In case of marriage, death, or bankruptcy, or devolution of estate 
 by operation of law, of any party to an action, the Court or a Judge 
 may, if it be deemed necessary for the complete settlement of all 
 the questions involved in the action, order that the husband, personal 
 representative, trustee, or other successor in interest, if any, of such 
 party be made a party to the action, or be served with notice thereof 
 in such manner and form as may be prescribed by Rules of Court, and 
 on such terms as the Court or Judge shall think just, and shall make 
 such order for the disposal of the action as may be just. 
 
 In case of an assignment, creation, or devolution of any estate or 
 title pendente lite, the action may be continued by or against the 
 person to or upon whom such estate or title has come or devolved. 
 
 Pleadings. 
 
 18. The following rules of pleading shall be substituted for those Form of 
 heretofore used in the High Court of Chancery and in the Courts of pleadings-, 
 Common Law, Admiralty, and Probate. 
 
 Unless the defendant at the time of his appearance shall state 
 that he does not require the delivery of a statement of complaint, 
 the plaintiff shall within such time and in such manner as shall be 
 prescribed by Rules of Court, file and deliver to the defendant after 
 his appearance a printed statement of his complaint and of the
 
 118 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 relief or remedy to which he claims to be entitled. The defendant 
 shall within such time and in such manner as aforesaid file and 
 deliver to the plaintiff a printed statement of his defence, set-off, 
 or counter-claim (if any) and the plaintiff shall in like manner file and 
 deliver a printed statement of his reply (if any) to such defence, set- 
 off, or counter-claim. Such statements shall be as brief as the nature 
 of the case will admit, and the Court in adjusting the costs of the 
 action shall inquire at the instance of any party into any unnecessary 
 prolixity, and order the costs occasioned by such prolixity to be borne 
 by the party chargeable with the same. 
 
 A demurrer to any statement may be filed in such manner and 
 form as may be prescribed by Rules of Court. 
 
 The Court or a Judge may, at any stage of the proceedings, allow 
 either party to alter his statement of claim or defence or reply, or 
 may order to be struck out or amended any matter in such state- 
 ments respectively which may be scandalous, or which may tend to 
 prejudice, embarrass, or delay the fair trial of the action, and all 
 such amendments shall be made as may be necessary for the purpose 
 of determining the real questions or question in controversy between 
 the parties. 
 
 Power to 19. Where in any action it appears to a Judge that the statement 
 
 settle issues. Q f c i a } m or defence or reply does not sufficiently disclose the issues of 
 fact in dispute between the parties, he may direct the parties to pre- 
 pare issues, and such issues shall, if the parties differ, be settled by 
 the Judge. 
 
 Counter- 
 claims by 
 defendant. 
 
 20. A defendant may set off, or set up, by way of counter-claim 
 against the claims of the plaintiff, any right or claim, whether such 
 set-off or counter-claim sound in damages or not, and such set- 
 off or counter-claim shall have the same effect as a statement of 
 claim in a cross action, so as to enable the Court to pronounce a final 
 judgment in the same action, both on the original and on the cross 
 claim. But the Court or a Judge may, on the application of the 
 ] ilaintiff 1 lefore trial, if in the opinion of the Court or Judge such set- 
 off or counter-claim cannot be conveniently disposed of in the pending 
 action, or ought not to be allowed, refuse permission to the defendant 
 to avail himself thereof. 
 
 21. Where in any action a set-off or counter-claim is established 
 judgment for as a defence against the plaintiff's claim, the Court may, if the 
 defendant 
 for balance 
 under 
 counter- 
 claim. 
 Joinder of 
 several 
 causes of 
 action. 
 
 Power to 
 
 balance is in favour of the defendant, give judgment for the 
 defendant for such balance, or may otherwise adjudge to the defendant 
 such relief as he may be entitled to upon the merits of the case. 
 
 22. Subject to any Rules of Court, the plaintiff may unite in the 
 same action and in the same statement of claim several causes of 
 action, but if it appear to the Court or a Judge that any such causes 
 of action cannot be conveniently tried or disposed of together, the 
 < 'ui at or Judge may order separate trials of any of such causes of 
 action to be had, or may make such other order as may be necessary 
 or expedient for the separate disposal thereof. 
 
 23. It shall not be necessary that every defendant to any action 
 shall be interested as to all the relief thereby prayed for, or as to 
 every cause of action included therein ; but the Court or a Judge 
 may make such order as may appear just to prevent any defendant 
 from being embarrassed or put to expense by being required to 
 attend any proceedings in such action in which he may have no 
 interest.
 
 SCHEDULE, 1873. 119 
 
 24. If it appear to the Court or a Judge, either from the statement p wer for 
 of claim or defence or reply or otherwise, that there is in any action Court to 
 
 a question of law, which it would be convenient to have decided ra J se preli- 
 before any evidence is given or any question or issue of fact is tried, qu "s t r ^, ns c 
 or before any reference is made to a Referee or an Arbitrator, the law in an 
 Court or Judge may make an order accordingly, and may direct such action. 
 question of law to be raised for the opinion of the Court, either by 
 special case or in such other manner as the Court or Judge may 
 deem expedient, or as may be prescribed by Rules of Court, and all 
 such further proceedings as the decision of such question of law may 
 render unnecessary may thereupon be stayed. 
 
 Discovery. 
 
 25. Subject to any Rules of Court, a plaintiff in any action shall Right of dis- 
 be entitled to exhibit interrogatories to, and obtain Discovery from, covery on 
 any defendant, and any defendant shall be entitled to exhibit in- " lt ? rr °£ a " 
 terrogatories to, and obtain Discovery from, a plaintiff or any other 
 
 party. Any party shall be entitled to object to any interrogatory 
 on the ground of irrelevancy, and the Court or a Judge, if not 
 satisfied that such interrogatory is relevant to some issue in the 
 cause, may allow such objection. No exceptions shall be taken to 
 any answer, but the sufficiency or otherwise of any answer objected 
 to as insufficient shall be determined by the Court or a Judge in a 
 summary way. 
 
 The Court in adjusting the costs of the action shall at the instance 
 of any party inquire or cause inquiry to be made into the propriety 
 of exhibiting such interrogatories, and if it is the opinion of the 
 taxing master or of the Court or Judge that such interrogatories 
 have been exhibited unreasonably, vexatiously, or at improper length, 
 the costs occasioned by the said interrogatories and the answers 
 thereto shall be borne by the party in fault. 
 
 26. Every party to an action or other proceeding shall be entitled, Production 
 at any time before or at the hearing thereof, by notice in writing, to ' '. ^wTor S 
 give notice to any other party, in whose pleadings or affidavits proved. 
 reference is made to any document, to produce such document for 
 
 the inspection of the party giving such notice, or of his solicitor, 
 and to permit him or them to take copies thereof ; and any party 
 not complying with such notice shall not afterwards be at liberty to 
 put any such document in evidence on his behalf in such action or 
 proceeding, unless he shall satisfy the Court that such document 
 relates only to his own title, he being a defendant to the action, or 
 that he had some other sufficient cause for not complying with such 
 notice. 
 
 27. It shall be lawful for the Court or a Judge at any time during Discovery as 
 the pendency therein of any action or proceeding, to order the pro- t° docu- 
 ductionby any party thereto, upon oath, of such of the documents mcuts - 
 
 in his possession or power, relating to any matter in question in such 
 suit or proceeding, as the Court or Judge shall think right ; and the 
 Court may deal with such documents, when produced, in such 
 manner as shall appear just. 
 
 Place of Trial. 
 
 28. There shall lie no local venue for the trial of any action, but Placeofniai. 
 when the plaintiff proposes to have the action tried elsewhere than
 
 120 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 in Middlesex, he shall in his statement of claim name the county or 
 place in which he proposes that the action shall be tried, and the 
 action shall, unless a Judge otherwise orders, be tried in the county 
 or place so named. Where no place of trial is named in the state- 
 ment of claim, the place of trial shall, unless a Judge otherwise 
 orders, be the county of Middlesex. Any order of a Judge, as to 
 such place of trial, may be discharged or varied by a Divisional 
 Court of the High Court. 
 
 List for trials 29. The list or lists of actions for trial at the sittings in London 
 in London and Middlesex respectively shall be prepared and the actions shall 
 and Mid- jj e a ]] tted for trial in such manner as may be prescribed by Rules of 
 
 Court, without reference to the division of the High Court to which 
 
 such actions may be attached. 
 
 Mode of 
 
 trying 
 
 actions. 
 
 Mode of Trial 
 
 30. Actions shall be tried and heard either before a Judge or 
 Judges, or before a Judge sitting with assessors, or before a Judge 
 and Jury, or before an official or special Referee, with or without 
 assessors. 
 
 Notice of 31. The plaintiff may give notice of trial by any of the modes 
 
 mode of trial a f oresa ,i<.l, but the defendant may, upon giving notice, within such 
 time as may be fixed by Rules of Court, that he desires to have any 
 issues of fact tried before a Judge and Jury, be entitled to have the 
 same so tried, or he may apply to the Court or a Judge for an order 
 to have the action tried in any other of the said ways, and in such 
 case the mode in which the action is to be tried or heard shall be 
 determined by such Court or Judge. 
 
 Different 
 questions 
 arising in 
 same action 
 may be trie J 
 in different 
 ways. 
 
 Trials 
 jury- 
 
 by 
 
 32. In any action the Court or a Judge may, at any time or from 
 time to time, order that different questions of fact arising therein 
 be tried by different modes of trial, or that one or more questions 
 of fact lie tried before the others, and may appoint the jJace or 
 places for such trial or trials. 
 
 33. Every trial of any question or issue of fact by a Jury shall 
 be held before a single Judge, unless such trial be specially ordered to 
 be held before two or more Judges. 
 
 Proceedings 
 before an 
 official 
 Reiereer 
 
 Effect of 
 decision of 
 
 Referee. 
 
 34. Where an action or matter, or any question in an action or 
 matter, is referred to a Referee, he may, subject to the order of the 
 Court or a Judge, hold the trial at or adjourn it to any place which 
 he may deem most convenient, and have any inspection or view, 
 either by himself or with his assessors (if any), which he may deem 
 expedient for the better disposal of the controversy before him. He 
 shall, unless otherwise directed by the Court or a Judge, proceed 
 with the trial in open Court, de die in diem, in a similar manner as 
 in actions tried by a jury. 
 
 35. The Referee may, before the conclusion of any trial before 
 him, or by his report under the reference made to him, submit any 
 question arising therein for the decision of the Court, or state any 
 facts specially, with power to the Court to draw inferences there- 
 from, and in any such case the order to be made on such submis- 
 sion or statement shall be entered as the Court may direct ; and
 
 SCHEDULE, 1873. 121 
 
 the Court shall have power to require any explanation or reasons 
 from the Referee, and to remit the action or any part thereof for 
 re-trial or further consideration to the same or any other Referee. 
 
 Evidence. 
 
 36. In the absence of any agreement between the parties, and Mode of 
 subject to any Rules of Court applicable to any particular class of g'Y'ng 
 cases, the witnesses at the trial of any cause, or at any assessment trials" 06 & 
 of damages, shall be examined viva voce and in open court, but the 
 
 Court or a Judge may at any time for sufficient reason order that 
 any particular fact or facts may be proved by affidavit, or that the 
 affidavit of any witness may be read at the hearing or trial, on 
 such conditions as the Court or Judge may think reasonable, or 
 that any witness whose attendance in Court ought for some sufficient 
 cause to be dispensed with, be examined by interrogatories or other- ' 
 wise before a Commissioner or examiner ; provided that where it 
 appears to the Court or Judge that the other party bona fide desires 
 the production of a witness for cross-examination, and that such 
 witness can be produced, an order shall not be made authorizing the 
 evidence of such witness to be given by affidavit. 
 
 37. Upon any interlocutory application evidence may be given by Evidence at 
 
 affidavit ; but the Court or a judge may, on the application of either interlocu- 
 
 party, order the attendance for cross-examination of the person tor X. .. 
 ^ , J . , ™ , L applications. 
 
 making any such affidavit. 
 
 38. Affidavits shall be confined to such facts as the witness is able Matter of 
 of his own knowledge to prove, except on interlocutory motions, on affidavits, 
 which statements as to his belief, with the grounds thereof, may be 
 admitted. The costs of every affidavit which shall unnecessarily 
 
 set forth matters of hearsay, or argumentative matter, or copies of 
 or extracts from documents, shall be paid by the party filing the same. 
 
 39. Any party to an action may give notice, by his own statement Admissions. 
 or otherwise, that he admits the truth of the whole or any part of 
 
 the case stated or referred to in the statement of claim, defence, or 
 reply of any other party. 
 
 Either party may call upon the other party to admit any docu- 
 ment, saving all just exceptions ; and in case of refusal or neglect to 
 admit, after such notice, the costs of proving any such document 
 shall be paid by the party so neglecting or refusing, whatever the 
 result of the action may be, unless at the hearing or trial the Court 
 certify that the refusal to admit was reasonable ; and no costs of 
 proving any document shall be allowed unless such notice be given, 
 except where the omission to give the notice is, in the opinion of the 
 taxing officer, a saving of expense. 
 
 Interlocutory Orders and Directions. 
 
 40. Any party to an action may at any stage thereof apply to the Power for 
 Court or a Judge for such order as he may, upon any admissions of Jj? arl j y r° r 
 fact in the pleadings, be entitled to, without waiting for the deter- order before 
 mination of any other question between the parties. termination 
 
 of action. 
 
 41. The Lord Chancellor, with the concurrence of the Lord p 0VV er to 
 Chief Justice of England, may order any question of law or of fact transfer 
 which may arise in any action or matter to be transferred from any question 
 judge to any other Judge, or to be tried or heard by any other Judge a"tlolw '" 
 
 G
 
 122 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 of the said High Court, and mayconfer on such Judge power to deal 
 with the whole or any part of the matters in controversy. 
 
 Accounts 42. The Court or a Judge may, at any stage of the proceedings in 
 
 and inquiries. an action or matter, direct any necessary inquiries or accounts to be 
 made or taken, notwithstanding that it may appear that there is 
 some special or further relief sought for or some special matter to be 
 tried, as to which it may be proper that the cause should proceed in 
 the ordinary manner. 
 
 Interim 
 orders as to 
 subject- 
 matter of 
 litigation. 
 
 Power to 
 make orders 
 for sale of 
 s;oods. 
 
 Power for 
 Court to 
 make interim 
 orders as to 
 preservation 
 or examina- 
 tion of pro- 
 perty, exa- 
 mination of 
 witnesses, 
 &c. 
 
 Discon- 
 tinuance of 
 action. 
 
 43. "When by any contract a prima, facie case of liability is estab- 
 lished, and there is alleged as matter of defence a right to be relieved 
 wholly or partially from such liability, the Court or a Judge may 
 make an order for the preservation or interim custody of the subject- 
 matter of the litigation, or may order that the amount in dispute be 
 brought into Court or otherwise secured. 
 
 44. It shall be lawful for the Court or a Judge, on the application 
 of any party to any action, to make any order for the sale, by any 
 person or persons named in such order, and in such manner, and on 
 such terms as to the Court or Judge may seem desirable, of any 
 goods, wares, or merchandise which may be of a perishable nature or 
 likely to injure from keeping, or which, for any other just and suf- 
 ficient reason, it may be desirable to have sold at once. 
 
 45. It shall be lawful for the Court or a Judge, upon the applica- 
 tion of any party to an action, and upon such terms as may seem 
 just, to make any order for the detention, preservation, or inspection 
 of any property, being the subject of such action, and for all or any 
 of the purposes aforesaid to authorize any person or persons to enter 
 upon or into any land or building in the possession of any party to 
 such action, and for all or any of the purposes aforesaid to authorize 
 any samples to be taken, or any observation to be made or experi- 
 ment to be tried, which may seem necessary or expedient for the 
 purpose of obtaining full information or evidence. The Court or a 
 Judge may also, in all cases where it shall appear necessary for the 
 purposes of justice, make any order for the examination upon oath 
 before any officer of the Court, or any other person or persons, and 
 at any place, of any witness or person, and may order any depositi< in 
 so taken to be filed in the court, and may empower any party to any 
 action or other proceeding to give such deposition in evidence therein 
 on such terms, if any, as the Court or a Judge may direct. 
 
 46. The plaintiff may, at any time before the receipt of the defen- 
 dant's statement of defence, or after the receipt thereof before taking 
 any other proceeding in the action (save any interlocutory applica- 
 tion), by notice in writing, wholly discontinue his action or with- 
 draw any part or parts of his alleged cause of complaint, and there- 
 upon he shall pay the defendant's costs of the action, or, if the action 
 be not wholly discontinued, the defendant's costs occasioned by the 
 matter so withdrawn. Such costs shall be taxed in the manner 
 prescribed by Rules of Court, and such discontinuance or withdrawal, 
 as the case may be, shall not be a defence to any subsequent action. 
 Save as in this Rule otherwise provided, it shall not be competent for 
 the plaintiff to withdraw the Record or discontinue the action without 
 leave of the Court or a Judge, but the Court or a Judge may, before, 
 or at, or after the hearing or trial, upon such terms as to costs, and 
 as to any other action, and otherwise as may seem fit, order the 
 action to be discontinued, <>r any part of the alleged cause of com-
 
 SCHEDULE, 1873. 123 
 
 plaint to be struck out. The Court or a Judge may, in like manner, 
 and with the like discretion as to terms, upon the application of a 
 defendant, order the whole or any part of his alleged grounds of 
 defence or counter-claim to be withdrawn or struck out, but it shall 
 not be competent to a defendant to withdraw his defence, or any 
 part thereof without such leave. Any judgment of nonsuit, unless 
 the Court or a Judge otherwise directs, shall have the same effect as 
 a judgment upon the merits for the defendant ; but in any case of 
 mistake, surprise, or accident, any judgment of nonsuit may be set 
 aside on such terms, as to payment of costs and otherwise, as to the 
 Court or a Judge shall seem just. 
 
 Costs. 
 
 47. Subject to the provisions of this Act, the costs of and incident Costs, 
 to all proceedings in the High Court shall be in the discretion of the 
 Court ; but nothing herein contained shall deprive a trustee, mort- 
 gagee, or other person of any right to costs out of a particular 
 estate or fund to which he would be entitled according to the rules 
 hitherto acted upon in Courts of Equity. 
 
 New Trials and Appeals. 
 
 48. A new trial shall not be granted on the ground of misdirection Restrictions 
 or of the improper admission or rejection of evidence, unless in the on new trial. 
 opinion of the Court to which the application is made some 
 substantial wrong or miscarriage has been thereby occasioned in the 
 
 trial of the action ; and if it appear to such Court that such wrong 
 or miscarriage affects part only of the matter in controversy, the 
 Court may give final judgment as to part thereof, and direct a new 
 trial as to the other part only. 
 
 49. Bills of exceptions and proceedings in error shall be abolished. Abolition of 
 
 bills of 
 
 50. All appeals to the Court of Appeal shall be by way of re- exceptions 
 
 hearing, and shall be brought by notice of motion in a summary f" -?^°ff.t r " 
 t •• -ir i t it i ings in error. 
 
 way, and no petition, case, or other formal proceeding other than such Mode of 
 notice of motion shall be necessary. The appellant may by the appealing. 
 notice of motion appeal from the whole or any part of any judgment 
 or order, and the notice of motion shall state whether the whole or 
 part only of such judgment or order is complained of, and in the 
 latter case shall specify such part. 
 
 51. The notice of appeal shall be served upon all parties directly Notice of 
 affected by the appeal, and it shall not be necessary to serve parties appeal. 
 not so affected ; but the Court of Appeal may direct notice of the 
 appeal to be served on all or any parties to the action or other pro- 
 ceeding, or upon any person not a party, and in the meantime may 
 postpone or adjourn the hearing of the appeal upon such terms as 
 
 may seem just, and may give such judgment and make such order as 
 might have been given or made if the persons served with such 
 notice had been originally parties. Any notice of apipeal may be 
 amended at any time as to the Court of Appeal may seem fit. 
 
 52. The Court of Appeal shall have all the powers and duties as General 
 to amendment and otherwise of the Court of First I nstance, together power of 
 with full discretionary power fco receive further evidence upon ques- pPP ea 
 tions of fact, such evidence to lie either by oral examination in court, 
 
 by affidavit, or by deposition taken before an examiner or commis- 
 sioner. Such further evidence may be given without special leave 
 upon interlocutory applications, or in any case as to matters 
 
 G 2
 
 124 
 
 SUPREME COURT OF JUDICATURE ACT, 1873. 
 
 Regulations 
 as to cross 
 appeals. 
 
 which have occurred after the date of the decision from which the 
 appeal is brought. Upon appeals from a decree or judgment upon 
 the merits, at the trial or hearing of any section or matter, such 
 further evidence (save as aforesaid) shall be admitted on special 
 grounds only, and not without special leave of the Court. The Court 
 of Appeal shall have power to give any judgment and make any 
 decree or order which ought to have been made, and to make such 
 further or other order as the case may require. The powers afore- 
 said may be exercised by the said Court, notwithstanding that the 
 notice of appeal may be that part only of the decision may be 
 reversed or varied, and such powers may also be exercised in favour 
 of all or any of the respondents or parties, although such respon- 
 dents or parties may not have appealed from or complained of the 
 decision. The Court _of Appeal shall have power to make such 
 order as to the whole or any part of the costs of the appeal as may 
 seem just. 
 
 53. It shall not, under any circumstances, be necessary for a 
 respondent to give notice of motion by way of cross appeal, but if a 
 respondent intends, upon the hearing of the appeal, to contend that 
 the decision of the Court below should be varied or altered, he shall, 
 within such time as may be prescribed by Rules of Court or by special 
 order, give notice of such intention to any parties who may be 
 affected by such contention. The omission to give such notice shall 
 not diminish the powers by this Act conferred upon the Court of 
 Appeal, but may, in the discretion of the Court, be ground for an 
 adjournment of the appeal, or for a special order as to costs. 
 
 54. When any question of fact is involved in an appeal, the 
 evidence taken in the Court below shall be brought before the Court 
 
 Mode of 
 bringing 
 
 before Court °^ Appeal in such manner as may be prescribed by Eules of Court 
 of Appeal. or by special order. 
 
 Power for 
 Court to 
 refer to 
 notes, &c. 
 
 Want of ap- 
 peal from 
 interlocutory 
 order not to 
 limit powers 
 of Court of 
 Appeal. 
 
 Limit of time 
 in appeals. 
 
 55. If, upon the hearing of an appeal, a question arise as to the 
 riding or direction of the Judge to a jury or assessors, the Court shall 
 have regard to verified notes or other evidence, and to such other 
 materials as the Court may deem expedient. 
 
 56. No interlocutory order or rule from which there has been no 
 appeal shall operate so as to bar or prejudice the Court of Appeal 
 from giving such decision upon the appeal as may seem just. 
 
 57. No appeal from any interlocutory order shall, except by 
 special leave of the Court of Appeal, be brought after the expiration 
 of twenty-one days, and no other appeal shall, except by such leave, 
 be brought after the expiration of one year. The said respective 
 periods shall be calculated from the time at which the judgment 
 or order is signed, entered, or otherwise perfected, or, in the case of 
 the refusal of an application, from the date of such refusal, or from 
 such time as may be prescribed by Eules of Court. Such deposit or 
 other security for the costs to be occasioned by any appeal shall be 
 made or given as may be prescribed by Rules of Court, or directed 
 under special circumstances by the Court of Appeal. 
 
 Appeal not to 58. An appeal shall not operate as a stay of execution or of pro- 
 stay proceed- ceedings under the decision appealed from, except so far as the 
 Court appealed from, or any Judge thereof, or the Court of Appeal, 
 may so order ; and no intermediate act or proceeding shall be in- 
 validated, except so far as the Court appealed from may direct.
 
 125 
 
 SUPREME COURT OF JUDICATURE 
 (COMMENCEMENT) ACT, 1874. 
 
 37 & 38 VICT. c. 83. 
 
 An Act for delaying the coming into operation of 
 the Supreme Court of Judicature Act, 1873. 
 
 [7th August, 1874.] 
 
 Whereas it is expedient to extend the time appointed 
 for the commencement of the Supreme Court of Judicature 
 Act, 1873 : 
 
 Be it enacted hy the Queen's most Excellent Majesty, 
 by and with the advice and consent of the Lords Spiritual 
 and Temporal, and Commons, in this present Parliament 
 assembled, and by the authority of the same, as follows : . 
 
 1. The second section of the Supreme Court of Judi- £ e P e ^! of 3 6 
 cature Act, 1873, is hereby repealed. 66, s. 2. ' 
 
 2. The Supreme Court of Judicature Act, 1873, except Commence- 
 any provisions thereof directed to take effect on the pass- preme Conrt 
 Lug of the said Act, shall commence and come into oper- °ure U Act a " 
 ation on the first day of November one thousand eight 1873. 
 hundred and seventy-five, and the said first day of 
 November one thousand eight hundred and seventy-five, 
 
 shall be taken to be the time appointed for the commence- 
 ment of the said Act. 
 
 3. This Act may be cited for all purposes as the Short title of 
 Supreme Court of Judicature (Commencement) Act, 1874.
 
 126 
 
 SUPREME COURT OE JUDICATURE ACT, 1875. 
 
 38 & 39 VICT. c. 77. 
 
 a.d. 1875. An Act to amend and extend the Supreme Court of 
 s7i. Judicature Act, 1878. 
 
 [11th August, 1875.] 
 
 Whereas it is expedient to amend and extend the Supreme 
 Court of Judicature Act, 1873 : 
 
 Be it therefore enacted by the Queen's Most Excellent 
 Majesty, by and with the advice and consent of the Lords 
 Spiritual and Temporal, and Commons, in this present 
 Parliament assembled, and by the authority of the same, 
 as follows : — 
 
 Short title, 1. This Act shall so far as is consistent with the tenor 
 Suction thereof be construed as one with the Supreme Court of 
 with 3 6 & 37 Judicature Act, 1873 (in this Act referred to as the 
 principal Act), and together with the principal Act may 
 be cited as the Supreme Court of Judicature Acts, 1873 
 and 1875, and this Act may be cited separately as the 
 Supreme Court of Judicature Act, 1875. 
 
 Commence- 2. This Act, except any provision thereof which is 
 ment of Act. c i ec i are( j to take effect before the commencement of this 
 Act, shall commence and come into operation on the 1st 
 day of November, 1875. 
 
 Sections 20, 21, and 55 of the principal Act shall not 
 commence or come into operation until the 1st day of 
 November, 1876, and until the said sections come into 
 operation, an appeal may be brought to the House of 
 Lords from any judgment or order of the Court of Appeal 
 hereinafter mentioned in any case in which any appeal or 
 error might now be brought to the House of Lords or to 
 Her Majesty in Council from a similar judgment, decree, 
 or order of any Court or Judge whose jurisdiction is by the 
 principal Act transferred to the High Court of Justice or 
 the Court of Appeal, or in any case in which leave to 
 appeal shall be given by the Court of Appeal.
 
 127 
 
 The sections whose operation is postponed would take away all g ;;; 
 second appeals from the High Court or Court of Appeal to the 
 House of Lords or Privy Council ; and wovdd authorize the transfer 
 by Order in Council of all other Privy Council appeals to the Court 
 of Appeal. 
 
 3. Whereas by s. 5 of the principal Act it is provided Explanation 
 as follows: "that if at the commencement of this Act vict. c' 11, 
 the number of puisne justices and junior barons who s - s» as to 
 
 . - - number ot 
 
 shall become Judges of the said High Court shall exceed judges, 
 twelve in the whole, no new Judge of the said High 
 Court shall be appointed in the place of any such puisne 
 justice or junior baron who shall die or resign while such 
 whole number shall exceed twelve, it being intended that 
 the permanent number of Judges of the said High Court 
 shall not exceed twenty-one;" and whereas, having regard 
 to the state of business in the several Courts whose juris- 
 diction is transferred by the principal Act to the High 
 Court of Justice, it is expedient that the number of 
 Judges thereof shoidd not at present be reduced : Be it 
 enacted, that so much of the said section as is herein- 
 before recited shall be repealed. 
 
 The Lord Chancellor shall not be deemed to be a per- 
 manent Judge of that Court, and the provisions of the said 
 section relating to the appointment and style of the 
 Judges of the said High Court shall not apply to the 
 Lord Chancellor. 
 
 4. Her Majesty's Court of Appeal, in this Act and in Constitution 
 the principal .Vet referred to as the Court of Appeal, shall A P peaT. t0 
 be constituted as follows ; There shall be rive ex-offlcio 
 Judges thereof, and also so many ordinary Judges, not ex- 
 ceeding three at any one time, as Her Majesty shall from 
 time to time appoint. 
 
 The ex-officio Judges shall be the Lord Chancellor, the 
 Lord Chief Justice of England, the Master of the Rolls, 
 the Lord Chief Justice of the Common Pleas, and the 
 Lord Chief Baron of the Exchequer. 
 
 The first ordinary Judges of the said Court shall be the 
 present Lords Justices of Appeal in Chancery, and such 
 i mi', other person as Her Majesty may be pleased to ap- 
 point by Letters Patent. Such appointment may be made 
 either before or after the commencement of this Act, 
 but if made before shall take effect at the commencement 
 of the Act. 
 
 The ordinary Judges of the Court of Appeal shall be 
 styleel Justices of Appeal.
 
 128 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 S. v. The Lord Chancellor may by writing, addressed to the 
 
 President of any one or more of the following divisions 
 of the High Court of Justice, that is to say, the Queen's 
 Bench Division, the Common Pleas Division, the Ex- 
 chequer Division, and the Probate, Divorce, and Admiralty 
 Division, request the attendance at any time, except during 
 the times of the spring or summer circuits, of an addi- 
 tional Judge from such division or divisions (not being an 
 ex-officio Judge or Judges of the Court of Appeal,) and a 
 Judge, to be selected by the division from which his atten- 
 dance is requested, shall attend accordingly. 
 
 Every additional Judge during the time that he attends 
 the sittings of Her Majesty's Court of Appeal, shall have 
 all the jurisdiction and powers of a Judge of the said 
 Court of Appeal, but he shall not otherwise be deemed to 
 be a Judge of the said Court, or to have ceased to be a 
 Judge of the division of the High Court of Justice to 
 which he belongs. 
 
 Section 54 of the principal Act is hereby repealed, and 
 instead thereof the following enactment shall take effect : 
 No Judge of the said Court of Appeal shall sit as a Judge 
 on the hearing of an appeal from any judgment or order 
 made by himself, or made by any Divisional Court of the 
 High Court of which he was and is a member. 
 
 Whenever the office of an ordinary Judge of the Court 
 of Appeal becomes vacant a new Judge may be appointed 
 thereto by Her Majesty by Letters Patent. 
 
 As to the jurisdiction of the Court of Appeal, see s. 19 of the 
 principal Act. ante, p. 54, and note thereto. As to the practice on 
 appeals, see Order LVIIL, post, p. 301, and notes thereto. 
 
 The words " was and is " in the above proviso, contrasted with 
 the words " was " in the repealed section rather seem to show that 
 " Divisional Court " means Division. 
 
 Tenure of 5. All the Judges of the Hip-h Court of Justice, and of 
 
 office 01 . • 
 
 judges, and the Court of Appeal respectively, with the exception of 
 
 office ° f ^ ie Lord Chancellor, shall hold their offices as such 
 
 judges not Judges respectively during good behaviour, subject to a 
 
 House of' e power of removal by Her Majesty, on an address pre- 
 
 Commons. sented to Her Majesty by both Houses of Parliament. 
 
 No Judge of either of the said Courts shall be capable of 
 
 being elected to or of sitting in the House of Commons. 
 
 Every person appointed after the passing of this Act 
 
 to be Judge of either of the said Courts (other than the 
 
 Lord Chancellor) when he enters on the execution of his 
 
 office, shall take in the presence of the Lord Chancellor,
 
 129 
 
 the oath of allegiance, and judicial oath as defined by the S. vi. 
 Promissory Oaths Act, 1868. The oaths to be taken by p rece 7 e nce 
 the Lord Chancellor shall be the same as heretofore. of judges. 
 
 6. The Lord Chancellor shall be President of the 
 Court of Appeal; the other ex officio Judges of the 
 Court of Appeal shall rank in the order of their present 
 respective official precedence. The ordinary Judges of the 
 Court of Appeal, if not entitled to precedence as Peers 
 or Privy Councillors, shall rank according to the priority 
 of their respective appointments as such Judges. 
 
 The Judges of the High Court of Justice who are not 
 also Judges of the Court of Appeal shall rank next after 
 the Judges of the Court of Appeal, and, among themselves 
 (subject to the provisions in the principal Act contained 
 as to the existing Judges), according to the priority of 
 their respective appointments. 
 
 7. Any jurisdiction usually vested in the Lords Justices jurisdiction 
 of Appeal in Chancery, or either of them, in relation to j ust f c r es S ; n 
 the persons and estates of idiots, lunatics, and persons of respect of 
 unsound mind, shall be exercised by such Judge or Judges 
 
 of the High Court of Justice or Court of Appeal as may 
 be intrusted by the sign manual of Her Majesty or Her 
 successors with the care and commitment of the custody 
 of such persons and estates ; and all enactments referring 
 to the lords justices as so intrusted shall be construed as if 
 such Judge or Judges so intrusted had been named therein 
 instead of such Lords Justices : Provided that each of the 
 persons who may at the commencement of the principal 
 Act be Lords Justices of Appeal in Chancery shall, during 
 such time as he continues to be a Judge of the Court of 
 Appeal, and is intrusted as aforesaid, retain the jurisdic- 
 tion vested in him in relation to such persons and estates 
 as aforesaid. 
 
 8. "Whereas by s. 11 of the principal Act it is provided Admirait/ 
 as follows: "Every existing Judge who is by this Act J r ^"ar nd 
 made a Judge of the High Court of Justice or an ordinary 
 Judge of tin- Court of Appeal shall, as to tenure of office, 
 
 rank, till'', salary, pension, patronage, and powers of 
 appointment or dismissal, and all other privileges and 
 disqualifications, remain in the same condition as if this 
 Act had not, passed; and, subject to the change effected 
 in their jurisdiction and duties by or in pursuance of the 
 provisions of this Act, each of the said existing Judges 
 shall be capable >>\' performing and liable to perform all 
 duties vrhich lie would have been capable of performing 
 or liable to perform in pursuance of any Act of Parlia- 
 
 g 5
 
 130 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 s. viii. Rient, law, or custom if this Act had not passed. No 
 
 ~ Judge appointed before the passing of this Act shall be 
 
 required to act under any commissi on of assize, nisi prius, 
 
 oyer and terminer, or gaol delivery, unless he was so liable 
 
 by usage or custom at the commencement of this Act :" 
 
 And whereas the Judge of the High Court of Admiralty 
 is by the principal Act appointed a Judge of the High 
 Court of Justice: 
 
 And whereas such Judge is, as to salary and pension, 
 inferior in position to the other puisne judges of the 
 superior courts of common law, but holds certain eccle- 
 siastical and other offices in addition to the office of Judge 
 of the High Court of Admiralty : 
 
 And whereas it is expedient that such Judge, if he be 
 willing to relinquish such other offices, should be placed 
 in the same position as to rank, salary, and pension, as the 
 other puisne Judges of the superior courts of common law : 
 
 Be it enacted that — 
 
 If the existing Judge of the High Court of Admiralty 
 under his hand signifies to the Lord Chancellor in 
 writing, before the commencement of the principal Act, 
 that he is willing to relinquish such other offices as afore- 
 said, and does before the commencement of the principal 
 Act, resign all other offices of emolument held by 
 him except the office of Judge of the High Court of 
 Admiralty, he shall, from and after the commencement of 
 the principal Act, be entitled to the same rank, salary, and 
 pension as if he had been appointed a Judge of the High 
 Court of Justice immediately on the commencement of 
 the principal Act, with this addition, that in reckoning 
 service for the purposes of his pension, his sendee as a 
 Judge of the High Court of Admiralty shall be reckoned 
 in the same manner as if the High Court of Justice had 
 been established at the time of his accepting the office of 
 Judge of the High Court of Admiralty, and he had con- 
 tinued from such time to be a Judge of the said High 
 Court of Justice. 
 
 The present holder of the office of registrar of Her 
 Majesty in Ecclesiastical and Admiralty causes, shall, as 
 respects any appeals in which lie would otherwise be con- 
 cerned coming within the cognizance of the Court of 
 Appeal, be deemed to be an officer attached to the 
 Supreme Court ; and the office, so far as respects the 
 duties in relation to such appeals as aforesaid, shall be 
 deemed to be a separate office within the meaning of 
 section seventy-seven of the principal Act. and may be 
 dealt with accordingly. He shall be entitled, in so
 
 131 
 
 far as he sustains any loss of emoluments by or in s. ix. 
 consequence of the principal Act or this Act, to prefer a 
 claim to the Treasury in the same manner as an officer 
 paid out of fees whose emoluments are affected by the 
 passing of the principal Act is entitled to do under, s. 80 
 of the principal Act. 
 
 Subject as aforesaid, the person who is at the time of 
 the passing of this Act Registrar of Her Majesty in 
 Ecclesiastical and Admiralty causes shall, notwithstanding 
 anything in the principal Act or this Act, have the same 
 rank and hold his office upon the same tenure and upon 
 the same terms and conditions as heretofore ; but it shall 
 be lawful for her Majesty by Order in Council made upon 
 the recommendation of the Lord Chancellor, with the 
 concurrence of the Treasury, to make, notwithstanding 
 anything contained in any Act of Parliament, such 
 arrangements with respect to the duties of the said last- 
 mentioned office, either by abolition thereof or otherwise, 
 as to Her Majesty may seem expedient : Provided that 
 such Order shall not take effect during the continuance 
 in such office of the said person so being registrar at the 
 time of the passing of this Act without his assent. 
 
 Every Judge of the Probate, Divorce, and Admiralty 
 Division of the said High Court of Justice appointed 
 after the passing of this Act shall, so far as the state of 
 business in the said division will admit, share with the 
 judges mentioned in s. 37 of the principal Act the duty 
 of holding sittings for trials by jury in London and 
 Middlesex, and sittings under commissions of assize, 
 oyer and terminer, and gaol delivery. 
 
 See ante, p. 47. 
 
 9. The London Court of Bankruptcy shall not be united London 
 or consolidated with the Supreme Court of Judicature, and Bankruptcy 
 the jurisdiction of that Court shall not be transferred not to be 
 under the principal Act to the High Court of Justice, but toHigh rc 
 shall continue the same in all respects as if such transfer V° s u t ^ e of 
 had not been made by the principal Act, and the prin- isy r *-*-*/■ 
 cipal Act shall be construed as if such union, consolida- 
 I ion, and transfer had not been made : Provided that — 
 
 (1.) The office of Chief Judge in Bankruptcy .shall 
 be filled by such one of the Judges of the High 
 < lourt of Justice appointed since the passing of the 
 Bankruptcy Act, 18G9, or with his consent, of such 
 one of the judges appointed prior to the passing 
 of the last-mentioned Act, as may be appointed 
 by the Lord Chancellor to that office ; and
 
 132 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 s. x. (2.) The appeal from the London Court of Bankruptcy 
 
 shall lie to the Court of Appeal, in accordance 
 with the principal Act. 
 See ante, p. 42. 
 
 of n l6 d & e " t 7 10> Whereas, by s. 25 of the principal Act, after recit- 
 vict. c. 66, ing that it is expedient to amend and declare the law to 
 ridef'onkw be thereafter administered in England as to the matters 
 upon certain next thereinafter mentioned, certain enactments are made 
 with respect to the law, and it is expedient to amend the 
 said section : Be it therefore enacted as follows : — 
 
 Sub-section one of clause twenty-five of the principal Act 
 is hereby repealed, and instead thereof the following enact- 
 ment shall take effect ; (that is to say), in the administration 
 by the Court of the assets of any person who may die after 
 the commencement of this Act, and whose estate may 
 prove to be insufficient for the payment in full of his debts 
 and liabilities, and in the winding up of any company 
 ( under the Companies Acts, 1862 and 1867, whose assets 
 1 may prove to be insufficient for the payment of its debts 
 ' and liabilities and the costs of winding up, the same rules 
 shall prevail and be observed as to the respective rights of 
 secured and unsecured creditors, and as to debts and 
 liabilities provable, and as to the valuation of annuities 
 and future and contingent liabilities respectively, as may 
 be hi force for the time being under the Law of Bank- 
 ruptcy with respect to the estates of persons adjudged 
 bankrupt ; and all persons who in any such case would be 
 entitled to prove for and receive dividends out of the 
 estate of any such deceased person, or out of the assets of 
 any such company, may come in under the decree or order 
 for the administration of such estate, or under the winding up 
 of such company, and make such claims against the same as 
 they may respectively be entitled to by virtue of this Act. 
 In sub-section 7 of the said section the reference to the 
 date of the passing of the principal Act shall lie 
 deemed to refer to the date of the commencement 
 of the principal Act. 
 The sub-section of the principal Act now repealed assi- 
 milated the Chancery rule as to the rights of secured creditors 
 in case of insolvency to that in force in Bankruptcy ; but it left the 
 ride in winding up, which was the same as the Chancery rule, un- 
 affected. The new rule places all the cases upon the same footing. 
 See note to s. 25, sub-s. 1, of the principal Act, ante, p. 61. 
 
 Provision as 11. Subject to any Rules of Court and to the provisions 
 anyHainfiir of the principal Act and this Act and to the power of 
 (subject to transfer, every person by whom any cause or matter may 
 choose in be commenced in the said High Court of Justice shall assign
 
 133 
 
 such cause or matter to one of the divisions of the said s. xii. 
 High Court as he may think fit, by marking the document what ^ vI _ 
 by which the same is commenced with the name of such sionjhje will 
 division, and giving notice thereof to the proper officer of stitutionfor 
 the court : Provided, that— te^T 
 
 (1.) All interlocutory and other steps and proceedings 
 in or before the said High Court in any cause or 
 matter subsequent to the commencement thereof, 
 shall be taken (subject to any Rules of Court and 
 to the power of transfer) in the division of the 
 said High Court to winch such case or matter is 
 for the time being attached ; and 
 
 (2.) If any plaintiff or petitioner shall at any time 
 assign his cause or matter to any division of the 
 said High Court to which, according to the Rules of 
 Court or the provisions of the principal Act or this 
 Act, the same ought not to be assigned, the Court, 
 or any Judge of such division, upon being informed 
 thereof, may, on a summary application at any 
 stage of the cause or matter, direct the same to be 
 transferred to the division of the said Court to 
 which, according to such rules or provisions, the 
 same ought to have been assigned, or he may, if he 
 think it expedient so to do, retain the same in the 
 division in which the same was commenced ; and 
 all steps and proceedings whatsoever taken by the 
 plaintiff or petitioner or by any other party in any 
 such cause or matter, and all orders made therein 
 by the Court or any Judge thereof before any such 
 transfer shall be valid and effectual to all intents 
 and purposes in the same manner as if the same 
 respectively bad been taken and made in the proper 
 division of the said Court to which such cause or 
 matter ought to have been assigned; and 
 
 (3.) Subject to Fades of Court, a person commencing 
 any cause or matter shall not assign the same to 
 the Probate, Divorce, and Admiralty Division un- 
 less he would have been entitled to commence the 
 same, in the Court of Probate, or in the Court for 
 Divorce and Matrimonial causes, or in the High 
 Conrl of Admiralty if this Act had not passed. 
 
 gee ante, p. 75, and Order V., Rule 4, post, p. 170. 
 
 12. Every appeal to the Court of Appeal shall, where sittings of 
 the subject-matter of the appeal is a final order, derive, or Appea° 
 judgment, he heard before not less than three Judges of
 
 134 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 /^C.^.Jt.f 
 
 Amendment 
 of s. 60 of 
 36 & 37 Vict 
 c. 66 as to 
 district, 
 registrars. 
 
 Amendment 
 of 36 & 37 
 Vict. c. 66, 
 s. 87, as to 
 enactments 
 relating to 
 attorneys. 
 
 the said Court sitting together, and shall, when the sub- 
 ject-matter of the appeal is an interlocutory or der, decree, 
 or judgment, he heard before not less than two Judges of 
 the said Court sitting together. 
 
 Any doubt which may arise as to what decrees, orders, 
 or judgments are final, and what are interlocutory, shall be 
 determined by the Court of Appeal. 
 
 Subject to the provisions contained in this section the 
 Court of Appeal may sit in two divisions at the same time. 
 
 As to the jurisdiction of the Court of Appeal, see s. 19 of the 
 principal Act, ante, p. 51, and note thereto, and as to the practice 
 upon appeals see Order LVIII., post, p. 301. and notes thereto. 
 
 13. Whereas by s. 60 of the principal Act it is providi 
 .that for the purpose of facilitating the prosecution in 
 
 country districts of legal proceedings, it shall be lawful 
 for Her Majesty by Order in Council from time to time t i 
 direct that there shall be district registrars in such places 
 as shall be in such order mentioned for districts to be 
 thereby defined; and whereas it is expedient to amend the 
 said section, be it therefore enacted that — 
 
 "Where any such order has been made, two persons may. 
 if required, be appointed to perform the duties of disl 
 registrar in any district named in the order, and such per- 
 sons shall be deemed to be joint district registrars, and 
 shall perform the said duties in such manner as may from 
 time to time be directed by the said order, or any Order in 
 Council amending the same. 
 
 Moreover the registrar of any inferior court of record 
 having jurisdiction in any part of any district denned by 
 such order (other than a County Court) shall, if appointed 
 by Her Majesty, be qualified to be a district registrar for 
 the said district, or for any and such part thereof as may 
 be directed by such order, or any order amending the 
 same. 
 
 Every district registrar shall be deemed to be an officer 
 of the Supreme Court, and be subject accordingly to the 
 jurisdiction of such Court, and of the divisions thereof. 
 
 As to the appointment of District Registrars and their districts, 
 see ss. 60 et seq. of the principal Act, ante, p. 88. As to proceedings 
 in District Registries see Order V., Rule 1, post, p. 168, and note 
 thereto ; Order XII., Hides 1 to 5, post, p. 181 ; Order XXXV.. 
 
 ■post, p. 212, and notes thereto. 
 
 14. Whereas under s. 87 of the principal Act, solicitors 
 and attorneys will after the commencement of that Act 
 be called solicitors of the Supreme Court : Be it therefore 
 enacted that — 
 
 The registrar of attorneys and solicitors in England
 
 135 
 
 shall be called the registrar of solicitors, and the Lord s. xv. 
 Chief Justice of England, the Master of the Rolls, the 
 Lord Chief Justice of the Court of Common Pleas, and 
 the Lord Chief Baron, or any two of them, may, from 
 time to time, by regulation adapt any enactments relating 
 to attorneys, and any declaration, certificate, or form re- 
 quired under those enactments to the solicitors of the 
 Supreme Court under s. 87 of the principal Act. 
 See ante, p. 108. 
 
 15. It shall be lawful for Her Majesty from time to Appeal from 
 time, by Order in Council, to direct that the enactments c"urt°of 
 relating to appeals from county courts shall apply to any record, 
 other inferior court of record ; and those enactments, sub- 
 ject to any exceptions, conditions, and limitations contained 
 
 in the order, shall apply accordingly, as from the date 
 mentioned in the order. 
 
 As to appeals from County Courts see s. 45 of the principal Act, 
 ante, p. 81. 
 
 16. The Eides of Court in the first Schedule to this Act Rules in ist 
 shall come into operation at the commencement of this substitution 
 Act, and as to all matters to which they extend shall £° r 36 & 37 
 
 J Vict. c. 66 
 
 thenceforth regulate the proceedings in the High Court of s . 69, and' 
 Justice and Court of Appeal. But such Eides of Court and schedule - 
 also all such other Rules of Court (if any) as may be made 
 after the passing and before the commencement of this Act 
 under the authority of the next section may be annulled 
 or alt 1 aril by the authority by which new Rules of Court 
 may be made after the commencement of this Act. 
 See ante, p. 97. 
 
 17. Her Majesty may at any time after the passing and Provision as 
 before the commencement of this Act, by Order in & c m a f king 
 Councd, made upon the recommendation of the Lord Rules of 
 Chancellor, and the Lord Chief Justice, of England, the rafter the* 
 Master of the Rolls, the Lord Chief' Justice of the ^f^fthe 
 Common Picas, the Lord Chief Baron of the Exchequer, Act,— insub- 
 and the Lord Justices of Appeal in Chancery or any five t^&^vkt 
 dI' tin ni, and the. other judges of the several Courts c. 66, 
 intended to be united and consolidated by the principal schedule! 
 A.ct as amended by this Act, or of a majority of such other 
 Judges, make any further or additional Rules of Court 
 
 for carrying the principal Act and this Act into effect, 
 and in particular for all or any of the following matters, so 
 far as they are not provided for by the, Rules in the first 
 Schedule to this Act ; that is to say,
 
 13G SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 S. xviii. (1.) For regulating the sittings of the High Court of 
 Justice and the Court of Appeal, and of any 
 Divisional or other Courts thereof respectively, 
 and of the Judges of the said High Court sitting 
 in Chamhers ; and 
 
 (2.) For regulating the pleading, practice, and procedure 
 in the High Court of Justice and Court of 
 Appeal; and 
 
 (3.) Generally, for regulating any matters relating to the 
 practice and procedure of the said Courts respec- 
 tively, or to the duties of the officers thereof, or 
 of the Supreme Court, or to the costs of proceed- 
 ings therein. 
 
 insubstitu- From and after the commencement of this Act, the 
 "eSc f ° r \"ict Supreme Court may at anytime, with the concurrence of a 
 c. 66, s. 74 . ' majority of the Judges thereof present at any meeting 
 for that purpose held (of which majority the Lord Chancellor 
 shall he one), alter and annul any Rides of Court for the 
 time being in force, and have and exercise the same power 
 of making Rules of Court as is by this section vested in 
 Her Majesty in Council on the recommendation of the said 
 Judges before the commencement of this Act. 
 
 All Rules of Court made in pursuance of this section 
 shall lie laid before each House of Parliament within such 
 time and shall be subject to be annulled in such manner 
 as is in this Act provided. 
 
 All Rules of Court made in pursuance of this section, if 
 made before the commencement of this Act, shall from 
 and after the commencement of this Act, and if made 
 after the commencement of this Act, shall from and after 
 they come into operation, regulate all matters to whicl-i 
 they extend, until annulled or altered in pursuance of this 
 section. 
 
 The reference to certain Judges in s. 27 of the principal 
 Act shall be deemed to refer to the Judges mentioned in 
 this section as the Judges on whose recommendation an 
 Order in Council may lie made. 
 
 Under the pewer given by this section of making further ami 
 additional rules after the passing and before the commencement of 
 the Act, a body of Additional Rules have been issued by Order in 
 Council. They will be found, post, p. 390. They deal with the 
 printing of documents and furnishing of copies ; costs, scales of 
 eests being given ; taxation, and review of taxation. 
 
 Provisions 18. All Rules and Orders of Court in force at the time 
 Probat? °' °f the commencement of this Act in the Court of Probate.
 
 137 
 
 the Court for Divorce and Matrimonial Causes, and the s. xix. 
 Admiralty Court, or in relation to appeals from the Chief Divorce, an d 
 Judge in Bankruptcy, or from the Court of Appeal in Admiralty 
 Chancery in bankruptcy matters, except so far as they being Rules 
 are expressly varied by the first Schedule hereto or by ££*« ?jg h 
 Rules of Court made by Order in Council before the com- substitution 
 mencement of this Act shall remain and be in force in the vfctfcfo^ 
 High Court of Justice and in the Court of Appeal s. 70. 
 respectively, until they shall respectively be altered or 
 annulled by any Rules of Court made after the commence- 
 ment of this Act. 
 
 The present Judge of the Probate Court and of the 
 Court for Divorce and Matrimonial Causes shall retain, 
 and the president for the time being of the Probate and 
 Divorce Division of the High Court of Justice shall 
 have, with regard to non-contentious or common form 
 business in the Probate Court, the powers now conferred 
 on the Judge of the Probate Court by the thirtieth sec- 
 tion of the twentieth and twenty-first years of Victoria, 
 chapter seventy-seven, and the said Judge shall retain, 
 and the said president shall have, the powers as to the 
 making of rules and regulations conferred by the fifty- 
 third section of the twentieth and twenty-first years of 
 Victoria, chapter eighty-five. 
 See ante, p. 97. 
 
 19. Subject to the First Schedule hereto and any Eides Provision as 
 of Court to be made under this Act, the practice and procedure. 
 procedure in all criminal causes and matters whatsoever in 5 ub J ect R to , 
 the High Court of Justice and in the Court of Appeal remaining ts 
 respectively, including the practice and procedure with SMtodt'"" 
 respect to Crown Cases Reserved, shall be the same as the tion for 
 practice and procedure in similar causes and matters c. 66, 3 I 71?' 
 before the commencement of this Act MR. &>.¥>• 4-3 
 
 See ante, p. 98. 
 
 20. Nothing in this Act or in the First Schedule hereto, Provision as 
 or in any Rides of Court to be made under this Act, save affecting 
 as far as relates to the power of the Court for special evidence or 
 reasons to allow depositions or affidavits to be read, shall juries,— jn 
 affect the mode of giving evidence by the oral examination for 36 "&""',- 
 of witnesses in trials by jury, or the rules of evidence, or vict - c - 6C - 
 the law relating to jurymen or juries. 
 
 See ante, p. 98. As to evidence generally see Order XXXVII. 
 and XXXVIII. post, pp. 264, 266 and notes thereto. 
 
 21. Save as by the principal Act or this Act, or by any 
 Rides of Court, may be otherwise provided, all forms and
 
 138 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Provision 
 for saving 
 of existing 
 procedure of 
 Courts when 
 not incon- 
 sistent with 
 this Act or 
 rules of 
 Court, — in 
 substitution 
 for 36 & 37 
 Vict. c. 66, 
 S. 73- 
 
 methods of procedure which, at the commencement of this 
 Act were in force in any of the Courts whose jurisdiction 
 is hy the principal Act or this Act transferred to the said 
 High Court and to the said Court of Appeal respectively, 
 under or hy virtue of any law, custom, general order, or 
 rides whatsoever, and which are not inconsistent with the 
 principal Act or this Act or with any Rules of Court, may 
 continue to he used and practised, in the said High Court 
 of Justice and the said Court of Appeal respectively, in 
 such and the like cases, and for such and the like 
 purposes, as those to which they woidd have heen 
 applicable in the respective courts of which the juris- 
 diction is so transferred, if the principal Act and this 
 Act had not passed. 
 
 Nothing in 22. Whereas hy section forty-six of the principal Act 
 tTprejudke' is enacted that " any judge of the said High Court sitting 
 right to have in flie exercise of its jurisdiction elsewhere than in a 
 
 issues sub- i-v • • • 1 rt • j. 
 
 mitted, &c. Divisional Court may reserve any case, or any point in 
 a case, for the consideration of a Divisional Court, or 
 may direct any case or point in a case to be argued 
 before a Divisional Court : " Be it hereby enacted, that 
 nothing in the said Act, nor in any rule or order made 
 under the powers thereof, or of this Act, shall take away 
 or prejudice the right of any party to any action to have 
 the issues for trial by jury submitted and left by the Judge 
 to the jury before whom the same shall come for trial, with 
 a proper and complete direction to the jury upon the law, 
 and as to the evidence applicable to such issues : 
 
 Provided also that the said right may be enforced 
 either by motion in the High Court of Justice or by 
 motion in the Court of Appeal founded upon an exception 
 entered upon or annexed -to the record. 
 
 See ante, p. 82, and Order XXX VI., Fade 22, post, p 
 notes thereto. 
 
 253, and 
 
 Regulation 
 oi circuits. 
 
 23. Her Majesty may at any time after the passing of 
 this Act, and from time to time, by Order in Council, pro- 
 vide in such manner and subject to such regulations as to 
 Her Majesty may seem meet for all or any of the follow- 
 ing matters : 
 
 1. Dor the discontinuance, either temporarily, or per" 
 manently, wholly or partially, uf any existing 
 circuit, and the formation of any new circuit by 
 the union of any counties or parts of counties, or 
 partly in one way and partly in the other, or by
 
 139 
 
 the constitution of any county or part of a county s. xxii. 
 to be a circuit by itself ; and in particular for the 
 issue of commissions for the discharge of civil and 
 criminal business in the county of Surrey to the 
 Judges appointed to sit for the trial by jury of 
 causes and issues in Middlesex or London or any 
 of them ; and 
 
 2. For the appointment of the place or places at which 
 
 assizes are to be holden on any circuit ; and 
 
 3. For altering by such authority and in such manner 
 
 as may be specified in the Order, the clay appointed 
 for holding the assizes at any place on any circuit 
 in any case, where, by reason of the pressure of 
 business or other unforeseen cause, it is expedient 
 to alter the same ; and 
 
 4. For the regulation, so far as may be necessary for 
 
 carrying into effect any order under this section, of 
 the venue in all cases, civil and criminal, triable 
 on any circuit or elsewhere. 
 
 Her Majesty may from time to time, by Order in 
 Council, alter, add to, or amend any Order in Council, 
 made in pursuance of this section ; and in making any 
 order under tins section may give any directions which it 
 appears to Her Majesty to be desirable to give for the 
 purpose of giving fidl effect to such Order. 
 
 Provided that every Order in Council made under this 
 section shall be laid before each House of Parliament 
 within such time, and shall be subject to be annulled in 
 such manner as is in this Act provided. 
 
 Any Order in Councd purporting to lie made in 
 pursuance of this section shall have the same effect in all 
 respects as if it were enacted in this Act. 
 
 The power hereby given to Her Majesty shall be deemed 
 to be in addition to and not in derogation of any power 
 already vested in Her Majesty in respect of the matters 
 aforesaid; and all enactments in relation to circiuts, or the 
 places at which assizes are to lie holden, or otherwise in 
 relation to the subject-matter of any Order under this 
 section, shall, so far as such enactments are inconsistent 
 with such Order, be repealed thereby, whether such repeal 
 is thereby expressly made or not; but all enactments 
 relating to the power of Her Majesty to alter 1 he circuits 
 of the Judges, or places at which assizes are to be holden, 
 or the distribution of revising barristers among the 
 circuits, or otherwise enabling or facilitating the carrying 
 the objects of this section into effect, and in force at the
 
 140 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 S. x.xiii. 
 
 Additional 
 power as to 
 regulation 
 of practice 
 and proce- 
 dure by 
 Rules of 
 Court. 
 
 time of the passing of the principal Act, shall continue in 
 force, and shall with the necessary variations, if any, 
 apply, so far as they are applicable, to any alterations in 
 or dealings with circuits, or places at which assizes are to 
 be holden, made or to be made after the passing of this 
 Act, or to any other provisions of any Order made under 
 tliis section ; and if any such Order is made for the issue 
 of commissions for the discharge of civil and criminal 
 business in the county of Surrey as before mentioned in 
 this section, that county shall for the purpose of the 
 application of the said enactments be deemed to be a 
 circuit, and the senior judge for the time being so com- 
 missioned, or such other judge as may be for the time 
 being designated for that purpose by Order in Council 
 shall, in the month of July or August in every year, 
 appoint the revising barristers for that county, and the 
 cities and boroughs therein. 
 
 The expression assizes shall in this section be construed 
 to include sessions under any commission of oyer and 
 terminer, or gaol delivery, or any commission in iieu 
 thereof issued under the principal Act. 
 
 24. Where any provisions in respect of the practice or 
 procedure of any Courts, the jurisdiction of which is 
 transferred by the principal Act or this Act to the High 
 Court of Justice or the Court of Appeal, are contained in 
 any Act of Parliament, Rules of Court may be made for 
 modifying such provisions to any extent that may be 
 deemed necessary for adapting the same to the High 
 Court of Justice and the Court of Appeal, without pre- 
 judice nevertheless to any power of the Lord Chancellor, 
 with the concurrence of the Treasury, to make any Rules 
 with respect to the Paymaster General, or otherwise. 
 
 Any provisions relating to the payment, transfer, or 
 deposit into, or in, or out of any Court of any money or 
 property, or to the dealing therewith, shall, for the 
 purposes of this section, be deemed to be provisions 
 relating to practice and procedure. 
 
 The Lord Chancellor, with the concurrence of the 
 Treasury, may from time to time, by order, determine to 
 what accounts and how intituled any such money or pro- 
 perty as last aforesaid, whether paid, transferred, or 
 deposited before or after the commencement of this Act, 
 i^ to be carried, and modify all or any forms relating to 
 such accounts; and the Governor and Company of the 
 Bank of England, and all other companies, bodies 
 corporate, and persons shall make such entries and altera-
 
 141 
 
 tions in their books as may be directed by tbe Lord s. xxLv. 
 Chancellor, with the concurrence of the Treasury, for the 
 purpose of carrying into effect any such order. 
 
 25. Every Order in Council and Ride of Court required ^^f^ 
 by this Act to be laid before each House of Parliament laid before 
 shall be so laid within forty days next after it is made, if and'rr^y be 
 Parliament is then sitting, or if not, Avithin forty days annulled on 
 after the commencement of the then next ensuing ses- either 5 
 sion ; and if an address is presented to Her Majesty by House - 
 either House of Parliament, within the next subsequent 
 
 forty days on which the said House shall have sat, 
 praying that any such Pule or Order may be annulled, Her 
 Majesty may thereupon by Order in Councd annid the 
 same ; and the Pide or Order so annulled shall thenceforth 
 become void and of no effect, but without prejudice to the 
 validity of any proceedings which may in the meantime 
 have been taken under the same. 
 
 This section shall come into operation immediately on 
 the passing of this Act. 
 
 26. The Lord Chancellor, with the advice and consent Fixing and 
 of the Judges of the Supreme Court or any three of them, collection of 
 
 1 -j-l il f i i m • ■■ ' ees ln High 
 
 ana witn the concurrence ot the ireasury, may, either Court and 
 before or after the commencement of this Act, by order, Appeal 
 fix the fees and percentages (including the percentage on 
 estates of lunatics) to be taken in the High Court of 
 Justice or in the Court of Appeal, or in any Court created 
 by any commission or in any office which is connected 
 with any of those Courts, or in which any business con- 
 nected with any of those Courts is conducted, or by any 
 officer paid wholly or partly out of public moneys who is 
 attached to any of those Courts or the Supreme Court, 
 or any judge of those Courts, including the masters and 
 other officers in lunacy, and may from time to time by 
 order increase, reduce, or abolish all or any of such fees 
 and percentages, and appoint new fees and percentages to 
 be taken in the said Courts or offices or any of them, or by 
 any such officer as aforesaid. 
 
 Any order made in pursuance of this section shall be 
 binding on all the Courts, offices, and officers to which it 
 refers, in the same manner as if it had been enacted by 
 Parliament. 
 
 All such fees and percentages shall (save as otherwise 
 directed by the order) be paid into the receipt of Her 
 Majesty's Exchequer and be carried to the Consolidated
 
 142 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 s. xxv. Fund, and -with respect thereto the following rules shall 
 be observed : 
 
 (1.) The fees and percentages shall, except so far as the 
 order may otherwise direct, be taken by stamps, 
 and if not taken by stamps shall be taken, applied, 
 accounted for, and paid over in such manner as 
 may be directed by the order. 
 
 (2.) Such stamps shall be impressed or adhesive, as the 
 Treasury from time to time direct. 
 
 (3.) The Treasury, -with the concurrence of the Lord 
 Chancellor, may from time to time make such rules 
 as may seem fit for publishing the amount of the 
 fees and regulating the use of such stamps, 
 and particularly for prescribing the application 
 thereof to documents from time to time in use or 
 required to be used for the purposes of such stamps, 
 and for insuring the proper cancellation of stamps 
 and for keeping accounts of such stamps. 
 
 (4.) Any document which ought to bear a stamp in 
 pursuance of this Act, or any rule or order made 
 thereunder, shall not be received, filed, used, or 
 admitted in evidence unless and until it is properly 
 stamped, within the time prescribed by the rules 
 under this section regulating the use of stamps, but 
 if any such document is through mistake or inad- 
 vertence received, filed, or used -without being 
 properly stamped, the Lord Chancellor or the Court 
 may, if he or it shall think fit, order that the same 
 be stamped as in such order may be directed. 
 
 (5.) The Commissioners of Inland Revenue shall keep 
 such separate accounts of all money received in 
 respect of stamps under this Act as the Treasury 
 may from time to time direct, and, subject to the 
 deduction of any expenses incurred by those Com- 
 missioners in the execution of this section, the 
 money so received shall, under the direction of the 
 Treasury, be carried to and form part of the 
 Consolidated Fund. 
 
 (G.) Any person who forges or counterfeits any such 
 stamp, or uses any such stamp, knowing the same 
 to be forged or counterfeit, or to have been 
 previously cancelled or used, shall be guilty of 
 forgery, and be liable on conviction to penal servi- 
 tude for a term not exceeding seven years, or to
 
 143 
 
 imprisonment with or -without hard labour for a s. xxvi. 
 
 term not exceeding two years. — 
 
 An order under this section may abolish any existing 
 fees and percentages which may be taken in the said 
 Courts or offices, or any of them, or by the said officers or 
 any of them, but subject to the provisions of any order 
 made in pursuance of this section, the existing fees and 
 percentages shall continue to be taken, applied, and 
 accounted for in the existing manner. 
 
 27. "Whereas by the Common Pleas at Lancaster Provisions 
 Amendment Act, 1869, the fees taken by the protho- caster Fee 
 notaries and district prothonotaries hi pursuance of that F V n< ?> an t d 
 
 ., tj-iji •-!, 1 ■•• r. ■, salaries, Ale, 
 
 Act, are directed to be carried to the credit of " the of officers of 
 Prothonotaries Fee Fund Account of the County Palatine Lancaster 
 of Lancaster," and certain salaries and expenses connected andDurham, 
 with the offices of the said prothonotaries and district c. 2 3 7 . 3j 
 prothonotaries, are directed to be paid out of that account : 
 
 And whereas, on the twenty-fourth day of June, one 
 thousand eight hundred and seventy-four, there was 
 standing to the credit of that account a sum of ten 
 thousand seven hundred and fift} r -five pounds Consolidated 
 three pound per Centum Bank Annuities and one thou- 
 sand eight hundred and ten pounds cash, or thereabouts : 
 
 And whereas the fees received in the Court of Pleas of 
 Durham are applied in payment of disbursements con- 
 nected with the office of the prothonotary of that Court, 
 and any surplus of such fees is paid into the receipt of 
 Her Majesty's Exchequer, and any deficiency of the 
 amount of the said fees to pay such disbursements is 
 charged on the Consolidated Fund of the United Kingdom : 
 
 And whereas after the commencement of the principal 
 Act, the jurisdiction of the Court of Common Pleas at 
 Lancaster and the Court of Pleas at Durham is by that 
 Act transferred to and vested in the High Court of Justice, 
 and it is expedient to make further provision respecting 
 the expenses of those Courts and the said stock and cash 
 standing to the credit of the prothonotaries fee fund 
 account of the county palatine of Lancaster : 
 
 Be it therefore, enacted that, — 
 
 After the commencement of the principal Act there 
 shall be paid out of moneys provided by Parliament such 
 sums by way of salary or remuneration to the protho- 
 notaries and district prothonotaries of the Court of 
 Common Pleas at Lancaster and the Court of Common 
 Pleas at Durham and their clerks, and such sums for rent, 
 taxes, and other outgoings at their offices, as the Lord
 
 144 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 S. .xxvii. 
 
 32 & 33 Vic 
 c- 37- 
 
 Annual 
 account of 
 fees and 
 
 Chancellor, with the concurrence of the Treasury, may 
 from time to time direct. 
 
 As soon as each prothonotary and district prothonotary 
 of the Court of Common Pleas at Lancaster has accounted 
 for and paid all fees and moneys which he shall have 
 received by virtue of his said office, the Chancellor of the 
 Duchy of Lancaster shall cause any security given by such 
 officer in pursuance of section seventeen of the Common 
 :. Pleas at Lancaster Amendment Act, 1869, to be can- 
 celled, and delivered up, or otherwise discharged. 
 
 As soon as may be after the commencement of the 
 
 principal Act the Treasury and the Chancellor of the 
 
 Duchy and County Palatine of Lancaster shall ascertain 
 
 the amount of stock and cash standing to the credit of 
 
 the prothonotaries' fee fund account of the County Palatine 
 
 of Lancaster, after paying thereout to the Eeceiver- General 
 
 of the revenues of the Duchy of Lancaster the amount of 
 
 the fees remaining in the prothonotary's hands on the 
 
 twenty-fourth day of October, one thousand eight hundred 
 
 and sixty-nine, and paid to that account in pursuance of 
 
 section seventeen of the last-mentioned Act, and all other 
 
 sums justly due to Her Majesty in right of Her said Duchy 
 
 and County Palatine ; and the Treasury shall by warrant 
 
 direct the Governor and Company of the Bank of England 
 
 to transfer to the Commissioners for the Eeduction of the 
 
 National Debt the amount of stock and cash so ascertained, 
 
 and either to cancel the stock in their books or otherwise 
 
 dispose of the same as may be directed by the warrant ; and 
 
 the Governor and Company of the Bank of England shall 
 
 transfer the stock and cash, and cancel or otherwise dispose 
 
 of the stock according to the warrant, without any order 
 
 from the Lord Chancellor or the Chancellor of the said 
 
 Duchy and County Palatine or any other person. 
 
 The Commissioners for the Eeduction of the National 
 Debt shall apply all cash transferred to them in pursuance 
 of this section in the purchase of Bank Annuities which 
 shall be cancelled or otherwise disposed of in like manner 
 as the said stock. 
 
 28. The Treasury shall cause to be prepared annually an 
 account for the year ending the thirty-first day of March, 
 xpenditure. showing the receipts and expenditure during the preceding 
 year in respect of the High Court of Justice and the Court of 
 Appeal, and of any Court, office, or officer, the fees taken 
 in which or by whom can be fixed in pursuance of this 
 Act.
 
 145 
 
 Such account shall be made out in such form and s. xxix. 
 contain such particulars as the Treasury, with the con- 
 currence of the Lord Chancellor, may from time to time 
 direct. 
 
 Every officer by whom or in whose office fees are taken 
 which can be fixed in pursuance of this Act, shall make 
 such returns and give such information as the Treasury 
 may from time to time require for the purpose of enabling 
 them to make out the said account. 
 
 The said account shall be laid before both Houses of 
 Parliament within one month after the thirty-first day of 
 March in each year, if Parliament is then sitting, or, if not, 
 then within one month after the next meeting of Parliament. 
 
 29. Whereas fines and other moneys paid into the Amendment 
 Court of Queen's Bench for Her Majesty's use are received pa/ments'of 
 by the Queen's coroner and attorney, and out of such senior puisne 
 moneys there is paid in pursuance of a writ of privy seal Queen's 
 an annual sum of forty pounds at the rate of ten pounds Qu"e„'- S and 
 for every term to the second Judge of the Court of Queen's coroner. 
 Bench, and by section seven of the Act of the sixth year 
 of King George the Fourth, chapter eighty-four, it is 
 enacted that the said termly allowance of ten pounds shall 
 continue to be paid to the said second judge in addition 
 to his salary. 
 
 And whereas out of the said moneys there is also 
 payable in pursuance of the said writ of privy seal an 
 annual sum of ten pounds to the Queen's coroner and 
 attorney : 
 
 And whereas it is expedient to determine such payments : 
 
 Be it therefore enacted as follows : 
 
 After the passing of this Act the said sums of forty 
 pounds and ten pounds a year shall cease to be payable 
 by the Queen's coroner and attorney out of the above- 
 mentioned moneys. 
 
 So long as the person who on the first day of March, one 
 thousand eight hundred and seventy-live, was the second 
 judge of the Court of Queen's Bench continues to be such 
 second judge, there shall Ik; payable to him out of the Conso- 
 lidated Fund of the United Kingdom the annual sum of 
 forty pounds in addition to his salary, and that annual sum 
 shall be payable to him by instalments of ten pounds at the 
 like times at which the said termly allowance of ten pounds 
 has heretofore been payable to him, or at such other times as 
 the Treasury, with the consent of the Judge, may direct. 
 
 Ho long as the, person who, on the first day of March, one 
 thousand eight hundred and seventy-live, was the Queen's 
 
 II
 
 missioned 
 
 146 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 s. xxx. coroner and attorney continues to hold that office, there 
 shall bo payable to him out of moneys provided by Par- 
 liament the annual sum of ten pounds, and such sum shall 
 be payable to him at the like time at which the said 
 annual sum of ten pounds has heretofore been payable to 
 him, or at such other lime as the Treasury, with the cpn- 
 sent "1" such Queen's coroner or attorney, may direct. 
 
 Amendment 39. Whereas by section sixteen of "The Court of 
 Vict., c. 44, Chancery Funds Act, 1872," it is enacted that an order 
 tr S an° s fer e of °^ the ( " ult "*' Chancery may direct securities standing to 
 Government the account of the Paymaster General on behalf of the 
 anTfrom the Court of Chancery to be converted into rash, and that 
 Paymaster where such order refers to Government securities such 
 behalf of the securities shall be transferred to the Commissioners for the 
 Chancer reduction of the National Debt in manner therein men- 
 
 and the tiulied : 
 
 National 
 
 lJebt Com- And whereas the said section contains no provision for 
 the converse cases of the conversion of cash into securities 
 ami tin; transfer of ecurities from the said Contmissioners 
 In the account of the Paymaster General on behalf of tic 
 Court of Chancery : 
 
 And whereas such conversion and transfer and the other 
 matters provided by the' said section, can lie more con- 
 veniently provided for by rides made in pursuance of 
 on eighteen of the said Act; and it is expedient to 
 ve doubts with respect to the power to provide by 
 such rules for the investment in securities of money in 
 Court, and the conversion into money of securities in 
 Court : 
 
 Be it therefore enacted as follows : 
 
 Section sixteen of "The Court of Chancery Funds Act, 
 1872," is hereby repealed. 
 
 Rules may from time to time be made in pursuance of 
 section eighteen of "The Court of Chancery Funds Act, 
 L872," with respect to the investment in securities i I 
 money in Court, and the conversion into money of securi- 
 ties in Court; and with respect t<i the transfer to the 
 Commissioners for the reduction of the National Debt of 
 Government securities ordered by the Court to be sold or 
 converted into cash, and to the transfer by those Commis- 
 sioners to the Paymaster General for the time being on 
 behalf of the Court of Chancery of Government s< curities 
 ordered by the Court of Chancery to be purchased 
 
 This section shall come into operation on the. passing of 
 this Act, and shall be construed together with "The Court
 
 147 
 
 of Chancery Funds Act, 1872," and shall ho subject to s. .xxxi. 
 any alteration in that Act made "by or in pursuance of the 
 principal Act or this Act. 
 
 31. Whereas under the Lunacy Regulation Act, 1853, Abolition of 
 it is provided that there shall he a secretary to the visitors secretary to 
 
 - -I . . . .•' the visitors 
 
 of lunatics therein-mentioned, and it is expedient to of lunatics, 
 abolish that office : Bo it therefore enacted as follows : c.^o.' 7 V ' ct " 
 
 After the passing of this Act there shall (case to be a 
 secretary to the visitors of lunatics. 
 
 The Treasury shall award, out of moneys provided by 
 Parliament, to the person who holds at the passing of this 
 Act the office of secretary to the visitors of lunatics such 
 compensation by way of annuity or otherwise, as, having 
 regard to the conditions on which he was appointed to his 
 office, the nature, salary, and emoluments of his office, and 
 the duration of his services, they may think just and 
 reasonable, so that the same be granted in accordance with 
 the provisions and subject to the conditions contained in 
 the Superannuation Act, 1859. 2 2Vi c t c. 26. 
 
 32. Whereas by section nineteen of " The Bankruptcy Amendment 
 " Repeal and Insolvent Act, 1869," it is enacted as follows : vilt! *. 3 l-> 
 " All dividends declared in any Court actina; under the s - z 9» and 32 
 
 OS 2* 1 Vict 
 
 " Acts relating to bankruptcy or the relief of insolvent c . 7 i, s. 116, 
 "debtors which remain unclaimed for five years after the ast °P*y- 
 
 • a ■ i- 1 ^ 1 mentofun- 
 
 " commencement 01 this Act, if declared before that com- claimed 
 " mencement, and for five years after the declaration of the persons St ° 
 " dividends if declared after the commencement of this Act, entitled. 
 " and all undivided surpluses of estates administered under 
 " the jurisdiction of such Court which remain undivided 
 •• for five years after the declaration of a final dividend in 
 " the case of bankruptcy, or five years after the close of an 
 " insolvency under this Act, shall be deemed vested in the 
 "Crown, and shall be disposed of as the Commissioners of 
 "Her Majesty's Treasury direct; provided that at any 
 "time after such vesting the Lord Chancellor may, if he 
 "thinks fit, by reason of the disability or absence beyond 
 " seas of the person entitled to the sum so vested, or for 
 '•any other reason appearing to him sufficient, direct that 
 '•(lie sum so vested shall be repaid out of moneys provided 
 "by Parliament, and shall be distributed as it- would have 
 " been if there had been no such vesting:" 
 
 And whereas a similar enactment, with respect to un- 
 claimed dividends in bankruptcy was made by section one 
 hundred and sixteen of "The, Bankruptcy Act, 1869 :" 
 
 And whereas it is expedient to give to persons entitled 32*3* Vict 
 
 11 2 c " 7 '"
 
 L48 SUPREME COURT OF JUDICATURE ACT, 187-"). 
 
 s. xxxiii. to any such unclaimed dividends or other sums greater 
 * — ,». , facilities for obtaining the same : Be it therefore enacted 
 
 32 & 33 Vict. o 
 
 cc. 83, 71. as follows : 
 
 Any Court having jurisdiction in the matter of any 
 baidu'tiptcy or insolvency, upon being satisfied that any 
 person claiming is entitled to any dividend or other payment 
 out of the moneys vested in the Crown in pursuance of 
 section nineteen of "The Bankruptcy Bepeal and Insolvent 
 Court Act, 18G9," or of section one hundred and sixteen 
 of "The Bankruptcy Act, 1869," may order payment of 
 the same in like manner as it might have done if the same 
 had not by reason of the expiration of five years become 
 vested in the Crown in pursuance of the said sections. 
 
 This section shall take effect as from the passing of this 
 Act. 
 
 Repeal. 33, from and after the commencement of this Act 
 
 there shall he repealed — 
 
 (1.) The Acts specified in the Second Schedule to this 
 Act, to the extent in the third column of that 
 schedule mentioned, without prejudice to anything 
 done or suffered before the said commencement 
 under the enactments hereby repealed ; also, 
 (2.) Any other enactment inconsistent with this Act or 
 the principal Act. 
 
 As to vacan- 
 cies in any 
 
 34. Whereas, by the seventy-seventh section of the 
 office within principal Act, it is provided that, upon the occurrence of 
 dp" °Aa" n ~ a vacancy in the office of any officer coming within the 
 provisions of the said section, the Lord Chancellor, with 
 the concurrence of the Treasury may, in the event of such 
 office being considered unnecessary, abolish the same, or may 
 reduce the salary, or alter the designation or duties thereof, 
 notwithstanding that the patronage thereof may be vested 
 in an existing judge ; but that nothing in the said act con- 
 tained shall interfere with the office of marshal attending 
 any commissioner of assize : And whereas it is expedient to 
 add to the said section : Be it enacted, that, upon the 
 occurrence of any vacancy coming within the provisions of 
 the said section, an appointment shall not be made thereto 
 fur the period of one month without the assent of the Lord 
 Chancellor, given with the concurrence of the Treasury ; 
 and, further, the Lord Chancellor may, with the concur- 
 rence of the Treasury, suspend the making any appoint- 
 ment to such office for any period not later than the first 
 day of January, one thousand eight hundred anil seventy- 
 seven and may, if it be necessary, make provision in such
 
 149 
 
 manner as he thinks fit for the temporary discharge, in the s. xxxv. 
 meantime, of the duties of such office. — 
 
 35. Be it enacted, that any person who at the time of Amendment 
 the commencement of this Act, shall hold the office of AcF.T^as 
 chamber clerk shall he eligible at any time thereafter for t0 . c ji am t>er 
 appointment to the like office, anything in the principal 
 Act to the contrary notwithstanding ; and that, if any 
 such person shall be so appointed after the commencement 
 of this Act, he shall, if the salary assigned to such office, 
 by or under the principal Act, be less than the salary 
 received by him at the time of the commencement of this 
 Act, be entitled to receive a salary not less than that so 
 formerly received by him so long as he shall retain such 
 office, but shall not be entitled to receive or claim any 
 pension in respect of his service, unless the Treasury, in 
 its absolute discretion, shall think fit to sanction the same.
 
 151 
 
 FIRST SCHEDULE. 
 
 Rules of Court.* Order i. 
 
 Form and 
 ttvt TTr , ... Commence- 
 
 [JNote. — Where no <>lhcr 'provision is made by the Act or ment of 
 these rule* the present procedure and practice remain ctlOT ^ 
 inforce^W 
 
 ORDER I. 
 
 Form and Commencement of Action, 
 
 1. All actions which have hitherto been commenced by 
 writ in the Superior Courts of Common LaAV at West- 
 minster, or in the Court of Common Pleas at Lancaster, or 
 in the Court of Pleas at Durham, and all suits which have 
 hitherto been commenced by bill or information in the 
 High Court of Chancery, or by a cause in rem or in per- 
 sonam in the High Court of Admiralty, or by citation or 
 otherwise in the Court of Probate, shall be instituted in 
 the High Court of Justice by a proceeding to be called an 
 action. 
 
 The proceedings which, under this rule, are to be instituted by 
 action are Common Law actions, suits in Chancery hitherto com- 
 tnenced by bill or information, and Admiralty and Probate suits. 
 Proceedings in any of the Courts consolidated by the Act which 
 have hitherto been instituted in any other mode, as, for instance, 
 Chancery proceedings commenced by petition or summons, are un- 
 affected by this rule ; though others of the rules may affect them ; 
 see Eor instance the rules of Order XIX. as to pleadings, which, by 
 s. 100 of the Judicature Act, 1873, ante, p. 114, include petitions 
 and summonses. By Order LXII. (post, p. 312), nothing in 
 the rules is to affect the practice or procedure in criminal pro- 
 ceedings, proceedings on the Crown side of the Queen's Bench, or 
 the revenue side of the Exchequer Divisions, or proceedings for 
 divorce or other matrimonial causes. 
 
 * These rules derive their authority from s. 16 of the foregoing 
 Act of 1875, ante, p. 135. 
 
 f See s. 73 of the Judicature Act, 1873, ante, p. 99, and s. 21 
 of the foregoing Act of ]S7- r >, ante, p. 138.
 
 152 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order I. 2. "With respect to interpleader, the procedure and 
 
 Corr^ntnce- practice now used by Courts of Common Law under the 
 
 Aaion f Interpleader Acts, 1 & 2 "Will. 4, c. 58, and 23 & 24 Vict., 
 
 _ c. 126, shall apply to all actions anil all the divisions of 
 
 the High Court of Justice, and the application by a 
 
 defendant shall be made at any time after being served 
 
 with a wait of summons and before delivering a defence. 
 
 This rule and the other provisions referred to below adopt the 
 Common Law Practice as to Interpleader, but with some im- 
 portant modifications. The subject acquires increased importance 
 by reason of s. 25, sub-s. 6 of the Act of 1873, ante, p. 63, which 
 allows a debtor or other person liable in respect of a chose in action 
 alleged to have been assigned to call upon rival claimants to inter- 
 plead. It may be well therefore, first to set out the Interpleader 
 Acts referred to in the above rule, and then to consider what the 
 practice under them, as modified by the new legislation, will be. 
 
 The Acts are as follows : — 
 
 1 & 2 Will. IV. c. 58. 
 
 An Act to enable Courts of Lav to give Relief against Adverse Claims 
 made upon persons having no interest in the subject of such Claims. 
 
 [20th Oct, 1831.] 
 
 Upon appli- S. 1. "Whereas it often happens that a person sued at law for the 
 cation by a recovery of money or goods wherein he has no interest, and which are 
 an actionVf" a ^ so dahned °f him by some third party, has no means of relieving 
 assumpsit, himself from such adverse claims but by a suit in equity against the 
 Ac, stating plaintiff, and such third party usually called a bill of interpleader, 
 ' ht th which is attended with expense and delay ; for remedy thereof, be 
 subject mat- it enacted, &c, that upon application made by or on the behalf of 
 ter is in a any defendant sued in any of His Majesty's Courts of Law at 
 third party, Westminster, or in the Court of Common Pleas of the County 
 may order Palatine of Lancaster, or the Court of Pleas of the County Pala- 
 such third tine of Durham, in any action of assumpsit, debt, detinue, or trover, 
 party to suc h application being made after declaration, and before plea, by 
 majntairfor am( l av it or otherwise, showing that such defendant does not claim 
 relinquish any interest in the subject-matter of the suit, but that the right 
 his claim, thereto is claimed or supposed to belong to some third party who 
 and in the ] las SU ed, or j s expected to sue, for the same ; and that such 
 stay pro- defendant does not in any manner collude with such third party, 
 ceeding in but is ready to bring into Court, or to pay or dispose of the subject- 
 such action, matter of the action in such manner as the Court (or any judge 
 thereof) may order or direct ; it shall be lawful for the Court, or 
 any judge thereof, to make rules and orders calling upon such third 
 party to appear and to state the nature and particulars of his claim, 
 and maintain or relinquish his claim, and upon such rule or order to 
 hear the allegations as well of such third party as of the plaintiff, 
 and in the meantime to stay the proceedings in such action, and 
 finally to order such third party to make himself defendant in the 
 same or some other action, or to proceed to trial on one or more 
 feigned issue or issues,"' and also to direct which of the parties shall 
 
 * By the 8 & 9 Vict. c. 107, s. ig, the use of feigned issues alleging 
 imaginary wagers was abolished, and a form of issue provided. For the form 
 in ordinary use, see Chitty's Forms, p. 809, 9th edit.
 
 FIRST SCHEDULE. RULES OF COURT. 153 
 
 be plaintiff or defendant in such trial, or with the consent of the Order I. 
 plaintiff and such third party, their counsel or attornies, to dispose Form and 
 of the merits of their claims, and determine the same in a summary '-ommence- 
 manner, and to make such other rules and orders therein, as to Action, 
 costs and all other matters, as may appear to be just and reasonable." — 
 
 S. 3. "And be it further enacted, that if such third party shall If such third 
 not appear upon such rule or order to maintain or relinquish his party shall 
 claim, being duly served therewith, or shall neglect or refuse to ^° c a Jjf e ear ' 
 comply with any rule or order to be made after appearance, it shall Court may 
 be lawful for the Court or judge to declare such third party, and bar his claim 
 all persons claiming by, from, or under him, to be ever barred from against the 
 prosecuting his claim against the original defendant, his executors defendant 
 or administrators ; saving, nevertheless, the right or claim of such 
 third party against the plaintiff, and thereupon to make such order 
 between such defendant and the plaintiff, as to costs and other 
 matters, as may appear just and reasonable." 
 
 S. 5. "Provided also, and be it further enacted, that if upon applica- If a judge 
 tion to a judge, in the first instance, or in any later stage of the thinks the 
 proceedings, he shall think the matter more fit for the decision of f^for"^ 01 ^ 
 the Court, it shall be lawful for him to refer the matter to the decision 
 Court, and thereupon the Court shall and may hear and dispose of of the Court, 
 the same in the same manner as if the proceeding had originally P e may refer 
 commenced by rule of court, instead of the order of a judge." 
 
 S. 6. " And whereas difficulties sometimes arise in the execution of For relief ot 
 
 process against goods and chattels, issued by or under the authority sheriffs and 
 
 of the said Courts, by reason of claims made to such goods and ?' " °„ ?" s 
 • cii ii i • i ln execution 
 
 chattels by assignees of bankrupts and other persons not being the of process 
 
 parties against whom such process has issued, whereby sheriffs against 
 and other officers are exposed to the hazard and expense of g° °s and 
 actions ; and it is reasonable to afford relief and protection in such 
 cases to such sheriffs and other officers ; be it therefore further 
 enacted, that when any such claim shall be made to any goods or 
 chattels taken or intended to be taken in execution under any 
 process, or to the proceeds or value thereof, it shall and may be lawful 
 to and for the Court from which such process issued, upon applica- 
 tion of such sheriff or other officer made before or after the return 
 brought against such sheriff or other officer, to call before them, by 
 rule of court, as well as the party issuing such process as the party 
 making such claim, and thereupon to exercise for the adjustment of 
 such claims and the relief and protection of the sheriff or other officer, 
 all or any of the powers and authorities hereinbefore contained, and 
 make such rules and decisions as shall appear to be just, according 
 to the circumstances of the case ; and the costs of all such proceed- 
 ings shall be in the discretion of the Court." 
 
 S. 7. " And be it further enacted, that all rules, orders, matters and Rules, 
 decisions to be made and done in pursuance of this act, except only orders, &c, 
 the affidavits to be filed, may, together with the declaration in the p^^^J^e , 
 cause (if any) be entered of record, with a note in the margin, this Act, 
 expressing the true date of such entry, to the end that the same may maybe 
 he evidence in future times, if required, and to secure and enforce enter «d of . 
 the payment of costs directed by such rule or order, and every such made 
 rule or order as entered shall have the force and effect of a judg- evidence, 
 ment, except only as to becoming a charge on any lands, tenements 
 or hereditaments, and in case any costs shall not be paid within Cost* 
 
 ii 5
 
 154 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order I. fifteen days after notice of the taxation and amount thereof given to 
 Form and the party ordered to pay the same his agent or attorney, executi >n 
 Commence- ma y issue for the same by fieri facias or capias ad satisfaciendum, 
 Action. adapted to the case, together with the costs of such entry, and of the 
 
 — execution if by fieri facias ; and such writ and writs may bear teste 
 
 \\ nts. on ^ n e c i a y , ,f issuing the same, whether in term or vacation ; and the 
 
 sheriff or other officer executing any such writ shall be entitled to 
 Sheriffs' fees, the same fees, and no more, as upon any similar writ grounded upon 
 
 a judgment of the Court." 
 
 Upon any S . 8. " .And whereas by a certain Act made, and jiassed in the last ses- 
 
 application s ; orl 0I Parliament, entitled : " An Act to improve the proceedings 
 "'" "' a ' nc j in prohibition and on writs of mandamus," it was among other things 
 this Act, the enacted, that it should be lawful for the Court to which appbcation 
 Court to may be made for any such writ of mandamus as is therein, on that 
 exercise such behalf mentioned, to make rides and orders calling not only upon the 
 make such person to whom such writ may be required to issue, but also all and 
 rules as are every other person having or claiming any right or interest in or to 
 given by, or ^ e ma tter of such writ to show cause against the issuing of such 
 ^thUAct w "t an< ^ payment of the costs of the application, and upon the 
 appearance of such other person in compliance with such rules, or in 
 default of appearance after service thereof, to exercise all such 
 powers and authorities, and to make all such rides and orders appli- 
 cable to the case as were or might be given or mentioned by or in 
 any Act passed or to be passed during that present session of Parlia- 
 ment, for giving relief against adverse claims made upon persons 
 having no interest in the subject of such claims ; and whereas no 
 such Act was passed during the then present session of Parliament, 
 be it therefore enacted, that upon any such application as is in the said 
 Act, and hereinbefore mentioned, it shall be lawful for the Court to 
 exercise all such powers and authorities, and make all such rules and 
 orders applicable to the case, as are given or mentioned by or in this 
 present Act." 
 
 •■ •'■ Vict. 1 & 2 Vict. c. 45. 
 
 c 45- 
 
 .1/' Act (inter alia) to extend tin jurisdiction of the Judges of the 
 Superior Courts of Common Law. 
 
 Sec. 2. S. 2 : " Whereas by another Act passed in the second year of 
 
 may exercise the rei » m of His late Ma J est y King William IV., intituled, ' An Act 
 
 such powers to enable the courts of law to give relief against adverse claims 
 
 for the relief made upon persons having no interest in the subject of such claims,' 
 
 of sheriffs, provision is made for the relief of sheriffs and other officers concerned 
 
 j jy'vinue'o?' i n * ne execution of process issued out of any of His Majesty's Courts of 
 
 i & 2 Will. 4, Law at Westminster, or of the Court of Common Pleas of the County 
 
 c. s8,_s. 6, be Palatine of Lancaster, or the Court of Pleas of the County Palatine 
 
 the several °^ l- )rir h aTn ' against goods and chattels by reason of claims made to 
 
 Courts. such goods and chattels, but such relief can only he given by rule 
 
 of court, and whereas it is expedient that a single judge should 
 
 possess the power of giving relief in that respect ; be it further 
 
 enacted, that it shall be lawful for any judge of the said Courts of 
 
 Queen's Bench, Common Pleas, or Exchequer, with respect to any 
 
 such process issued out of any of those Courts, or for any judge of 
 
 th. said < 'ourt of Common Pleas of the < lounty Palatine of Lam 
 
 or Court of Pleas of the County Palatine of Durham (being also a 
 
 judge of one of the said three Superior Courts) with respect to process
 
 FIRST SCHEDULE. RULES OF COURT. 155 
 
 issued out of the said Courts of Lancaster and Durham respectively, Order I. 
 to exercise such jiowers and authorities for the relief and protection Form and 
 of the sheriff or other officer as may by virtue of the said last- Commen ce- 
 mentioned Act be exercised by the said several Courts respectively, Action 
 and to make such order therein as shall appear to be just ; and the — 
 
 costs of such proceedings shall lie in the discretion of such judge." 
 
 C. L. P. Act 1860, 23 & 24 Vict. c. 126. 23 & 24 V j ct 
 
 c. 126. 
 
 S. 12. "Where an action has been commenced in respect of a 
 common law claim for the recovery of money or goods, or where goods 
 or chattels have been taken or are intended to be taken in execution rn 1 a y r b e eac 
 under process issued from any one of the Superior Courts, or from granted 
 the Court of Common Pleas at Lancaster or the Coiirt of Pleas at though titles 
 Durham, and the defendant in such action, or the sheriff or other e not 
 officer, has applied for relief under the provisions of an Act made origin. 
 and passed in the session of Parliament held in the first and second 
 year of the reign of His late Majesty King William the Fourth, 
 intitled ' An Act to enable the Courts of Law to give relief against c . rg, ' 4 ' 
 adverse claims made upon persons having no interest in the subject 
 of such claims,' it shall be lawful for the Court or a judge to whom 
 such application is made to exercise all the powers and authorities 
 given to them by this Act and the hereinbefore mentioned Act 
 passed in the session of Parliament held in the first and second years 
 of the reign of His late Majesty King William the Fourth, though 
 the titles of the claimants to the money, goods, or chattels in 
 question, or to the proceeds or value thereof, have not a common 
 origin, but are adverse to and independent of one another." 
 
 S. " 13. When goods or chattels have been seized in execution by a Court or 
 sheriff or other officer under process of the above mentioned Courts, judge may 
 and some third person claims to be entitled, under a bill of sale or direct sale 
 otherwise, to such goods or chattels by way of security for debt, the sei^rJin 
 Court or a judge may order a sale of the whole or part thereof execution. 
 upon such terms as to payment of the whole or part of the 
 secured debt or otherwise as they or he shall think fit, and may 
 direct the application of the proceeds of such sale in such manner 
 and upon such terms as to such Court or judge may seem just." 
 
 S. 14 '• I "p< ni the hearing of any rule or order calling upon persons p OW erto 
 to appear and state the nature and particulars of then- claims, it shall Court or 
 be lawful for the Court or judge wherever, from the smallness of J ud S ^ to 
 the amount in dispute, or of the value of the goods seized, it shall summar ;iy 
 appear to them or him desirable and right s<> to do, at the request in certain 
 of either party to dispose of the merits of the respective claims of cases - 
 such parties, and to determine the same in a summary manner upon 
 such terms as they or he shall think lit to impose, and to make 
 such other rule and orders therein as to costs and all other matters 
 just." 
 
 S. 1 5. ' : In all eases of interpleader proceedings, where the question Special case 
 is one of law and the facts are not in di pute, the judge shall beat ma y he 
 liberty, at Ms discretion, to decide the question without directing an f a *ts ui^ ^ 
 action or issue, and, if he shall think it d< arable, to order that a disputed, 
 pei id 1 a e be stated for the opinion! of the Court."
 
 156 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order I. 
 Form and 
 Commence- 
 ment of 
 Action. 
 
 Proceedings 
 on special 
 case in Court 
 below and in 
 
 Judgment 
 and decision 
 when to be 
 final. 
 
 Rules, 
 orders, &c, 
 made into 
 interpleader 
 proceedings 
 may be en- 
 tered of re- 
 cord and 
 made evi- 
 dence. 
 
 S. 16. " The proceedings upon such case shall, as nearly as maybe, 
 be the same as upon a special case stated under ' The Common Law 
 Procedure Act, 1852,' and error may be brought upon a judgment 
 upon such case ; and the provisions of ' The Common Law Procedure 
 Act, 1854,' as to bringing error upon a special case, shall apply to 
 the proceedings in error upon a special case under this Act." 
 
 S. 17. "The judgment in any such action or issue as may be directed 
 by the Court or judge in any interpleader proceedings, and the deci- 
 sion of the Court or judge in a summary manner, shall be final and 
 conclusive against the parties, and all persons claiming by, from, or 
 under them." 
 
 S. 18. "All rules, orders, matters, and decisions to be made and 
 done in interpleader proceedings under this Act (excepting only any 
 affidavits), may, together with the declaration in the cause, if any, be 
 entered of record, with a note in the margin expressing the true date 
 of such entry, to the end that the same may be evidence in future 
 times, if required, and to secure and enforce the payment of costs 
 directed by any such rule or order ; and every such rule or order so 
 entered shall have the force and effect of a judgment in the Superior 
 Courts of Common Law." 
 
 Practice in Interpleader. 
 
 Interpleader is of two kinds : — I. That for the protection of 
 ordinary persons harassed by conflicting claims. II. That for the 
 protection of sheriffs and other officers executing process. 
 I. Interpleader by ordinary persons. 
 
 Relief by interpleader, when the same thing is claimed 
 against the same person by several claimants, has long been 
 given by the Court of Chancery in the exercise of its 
 traditional jurisdiction ; and by the Common Law Courts to 
 a very limited extent at Common Law, but mainly under 
 .statutory authority. The jurisdiction, however, of the two 
 classes of courts, and the conditions of its exercise, have not 
 been identical. 
 The Common Law and Equity Courts have alike required : — 
 
 That the party seeking protection should himself claim no 
 
 interest in the subject matter ; 
 That he should be in possession of the subject matter, so as to 
 be able, as well as willing, to comply with the order of the 
 Court with respect to it. 
 But, on the one hand, Courts of Equity have refused this relief 
 where the party seeking it was under any special liabilities, other 
 than those arising from the title to the property, towards one of 
 the claimants with respect to the subject matter claimed. They 
 have always refused therefore to grant interpleader to an agent or 
 bailee as against his principal or bailor where goods were claimed by 
 another under an adverse independent title : Crawshay v. Thornton, 
 2 M. and Cr. 1 ; Story's Equity Jurisprudence, § 820. Courts of Law 
 have not been so restricted : Best v. Hai/es, 1 H. & C. 718 ; 
 Tanner v. European Bank; Law Rep., 1 Ex. 261. 
 
 On the other hand the Common Law Courts have, at least until 
 lately, given relief by interpleader only when both claims were 
 legal, as distinguished from equitable, though of late the strictness 
 of this rule has been considerably relaxed ; Rusdcn v. Pope, Law 
 Rep., 3 Ex. 269 ; Bank of Ireland v. Perry, Law Rep.. 7 Ex. 14.
 
 FIRST SCHEDULE. RULES OF COURT. 157 
 
 Again, Courts of Law have, under the Interpleader Acts, only had Order I. 
 power to give relief after an action (and an action under the 1 &, 2 Form and 
 Will. 4, c. 58, of assumpsit, debt, detinue, or trover, or under the tommence- 
 Common Law Procedure Act, 1860, in respect of a Common Law Action 
 claim for the recovery of money or goods) has been commenced _ 
 
 against the applicant by one of the claimants. Whereas in 
 Chancery it has been enough that conflicting claims have been 
 made, though no legal proceedings have been actually commenced. 
 The above rule, which says that the application by a defendant may be 
 made at the time specified, seems to contemplate that the relief may 
 also have to be sought otherwise than by a defendant. And sec. 25 
 sub-s. 6 of the Judicature Act, 1873, ante, p. 63, also appears to allow 
 relief by interpleader in cases falling within that section after notice 
 of conflicting claims without waiting for an action to be brought. 
 And generally it may probably be presumed that wherever heretofore 
 one Court has had power to give relief under circumstances in 
 which the other could not do so, the more liberal ride will for "the 
 future prevail in all divisions of the Court. See ss. 16 and 24 of the 
 principal Act. By the above rule the Common Law practice in 
 interpleader is to prevail, except of course so far as the rule itself, 
 or any other provision in the new legislation, modifies it. 
 
 Heretofore, under the Interpleader Acts, the application could 
 only be made after declaration and before plea. Under this rule it 
 may be made after service of the writ and before defence. 
 
 The application is made at chambers by summons calling upon 
 the claimant to appear and state his claim. 
 
 It is made to a Judge ; a Master of the Queen's Bench, Common 
 Pleas or Exchequer Division, has no jurisdiction ; Order LIV., 
 Rule 2, post, p. 297. Nor has a District Registrar ; Order XXXV., 
 Rule 5, iwst, p. 245. 
 
 The application is made on affidavit, showing (1 & 2 Will. IV. 
 c. 5, s. 1, ante, p. 152) that the applicant does not claim any 
 interest in the subject matter, but that the right is claimed or sup- 
 posed to belong to a third party who has sued or is expected to sue, 
 and that the applicant does not collude with such third party, but is 
 ready to bring into Court or to pay or dispose of the subject matter 
 of the action as may be ordered. 
 
 If the party summoned does not appear to maintain his claim an 
 order may be made barring it (1 & 2 Will. IV. c. 58, s. 3, ante, p. 153). 
 If the party summoned does appear to maintain his claim several 
 courses are open : — 
 
 If from the smallness of the amount in dispute or the value of 
 the goods seized it appears desirable, the judge may, on the 
 application of either party, dispose of the matter summarily 
 (C. L. P. Act, 1860, s. 14, ante, p. 155) : 
 If the question is one of law, and the facts are not in dispute, 
 the judge may in his discretion decide the question sum- 
 marily (C L. P. Act, I860, s. 15, ante, p. 155) : 
 If, as in the last case, the question is one of law, the judge 
 may order a special case to be stated for the opinion of the 
 Court : {ibid.) 
 The judge may order the claimant to make himself defendant 
 in the original action pending against the party seeking relief 
 by interpleader, or in some other action ; or may order an 
 issue to be tried, and may direct who shall be plaintiff and 
 who defendant in such issue (1 & 2 Will. IV. c. 58, s. 1, 
 ante, p. 152). 
 By the C. L. P. Act, 1860, s. 17, following 1 .1- 2 Will. IV, c. 58,
 
 158 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order II. 
 Writ of 
 
 Summons 
 and Proce- 
 dure, &c. 
 
 s. 2, the decision of the Court or a judge was made final. S. 
 19 of the Judicature Act, 1873, gives an appeal from every judgment 
 or < irder, " save as hereinafter mentioned." As the Amendment Act, 
 1875, is to be read as one with that Act, and the above rule adopting 
 the procedure under the Interpleader Acts is in the schedule, the 
 case of interpleader may perhaps be held to fall within the words 
 " save as hereinafter mentioned." If so, there will still be no appeal 
 in interpleader. But on the other hand, it may well be doubted 
 whether the right of appeal properly falls within the words " proce- 
 dure and practice " as used in the rule. It was held, however, in 
 Withers v. Parker, 4 H. & N. 810, that the appeal given by the 34th 
 section of the C L. P. Act, 1854, against a decision of the Court 
 discharging a rale after leave to move had been reserved at the trial, 
 applied to a point reserved on the trial of an interpleader issue. 
 
 II. Interpleader by sheriffs. 
 
 The second kind of interpleader in use is that for the protection 
 of sheriffs and other officers executing process. It is governed by 
 the statutes above set out, and the procedure is the same as in other 
 cases. In the ride now under comment it will be observed that 
 the provision that the application shall be made after service of a 
 writ is only in the case of a defendant. A sheriff has never had 
 to wait till an action was brought against him. 
 
 3. All other proceedings in and applications to the High 
 Court may, subject to these Rules, betaken and made in the 
 same manner as they would have been taken and made in 
 any Court in which any proceeding or application of the 
 like kind could have been taken or made if the Act had not 
 been passed. 
 
 ORDER II. 
 
 Writ of Summons and Procedure, &c 
 
 1 . Every action in the High Court shall be commenced 
 by a writ of summons, which shall be indorsed with a 
 statement of the nature of the claim made, or of the relief 
 or remedy required in the action, and which shall 
 specify the Division of the High Court to which it is 
 intended that the action should be assigned. 
 
 As to the indorsement of claim, see the next order. 
 
 The words of this rule are general, requiring the indorsement to 
 stated naturt of the claim, or of the relief or remedy required. It 
 seems then in terms to include the case in which a mandamus or an 
 injunction, or the appointment of a receiver is to be sought. On the 
 other hand, by s. 25, sub-s. 8 of the Act of 187:'. the Court is 
 empowered to grant any of these things "by an interlocutory order 
 in all casts iu which it shall appear just or convenient." And by 
 Order XII., rule 1, post, p. 182, the application may be mad. either
 
 FIRST SCHEDULE. — RULES OF COURT. 159 
 
 ex parte or with notice. It would appear therefore that if the claim Order II. 
 for a mandamus or an injunction, or the appointment of a receiver he ^ rlt °t 
 a substantive part of what the Plaintiff brings his action to obtain, ' an ^ p roce . 
 he ought to indorse his writ accordingly ; see forms in Appendix A, dure, &c. 
 p>ost, p. 323 ; but that the Court has full discretion to give such — 
 
 relief if the necessity for it arises incidentally in the course of the 
 action. By Order III., Rule 2, post, p. 65, a defective indorsement 
 may be amended. 
 
 By ss. 33 and 42 of the Judicature Act, 1873, ante, pp. 73, 80, the 
 writ of summons in an action commenced in the Chancery Division 
 must also as hitherto be marked with the name of some particular 
 Judge of that division to whom the plaintiff chooses to assign the 
 action. 
 
 As to notice to the proper officer of the choice of Division, see 
 s. 11 of the Act of 1875 ; and Order V., ride 9, post, p. 171. 
 
 By Order V., rules 2 and 3, post, p. 169, where the writ is issued 
 in a District Registry, then, if the Defendant neither resides nor 
 carries on business within the District, there must be a statement on 
 the face of the writ that he may appear either in London or in the 
 District Registry ; and if he resides or carries on business within 
 the District a statement that he is to appear there. 
 
 2. Any costs occasioned by the use of any more prolix 
 or other forms of writs, and of indorsements thereon, than 
 the forms hereinafter prescribed, shall be borne by the 
 party using the same, unless the Court shall otherwise 
 direct. 
 
 For forms of writs and indorsements, see Appendix A, j>os<, p. 315. 
 The question of undue prolixity will be enquired into by the tax- 
 ing officer ; Additional Rules, jiost, pp. 413, 414. 
 
 3. The writ of summons for the commencement of an 
 action shall, except in the cases in which any different 
 form is hereinafter provided, bo in form No. 1 in part 1 
 of Appendix (A), hereto, with such variations as circum- 
 stances may require. 
 
 OEDER II. — Writ of Summons and Frocedure. J^^^-/y6 
 2. Forms 2 and 3 in Fart 1 of Appendix A to "The Ordei n , 
 Rules of tin' Supreme Court" shall be read as if the words ue 3(a * 
 " by leave of the Court or a Judge" were not therein. 
 
 ^i.iucuy actions, l lie writ was umerent ; it gave sixteen days to 
 appear instead of, as in other actions, eight. There were no pleadings, 
 but the defendant who appeared went to trial to try the plaintiff's 
 right to recover the premises described in the writ. For the future, 
 .•in action for the recovery of land will, with a few exceptions, 
 proceedin like manner to any other action. The writ will be the 
 same, tin- Indorsement only, ;is in other actions, showing the nature 
 of the claim. There will lie pleadings us in ether actions. Tic 
 most material differences will be that the right of ;>, landlord to 
 intervene and defend is preserved (< >rder XII., Rules 18, post p. 184), 
 and that a defendant in possession need not in general plead bis 
 title (Order XIX, Rule 15, post, p. 210).
 
 160 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order ii. -1. Xo writ or summons for service out of the jurisdic- 
 
 Sum'mons tioii, or of which notice is to be given out of the jurisdic- 
 and Proce- tion, shall be issued without the leave of a Court or Judge. 
 
 dure, ffic. ° 
 
 /£4Q>l-' = 7~7 See Order XL, post, p. 179, and note thereto, where the subject 
 
 -/y n. itf/i-- is fully considered. 
 
 5. A writ of summons to be served out of the juris- 
 diction, or of which notice is to be given out of the 
 jurisdiction, shall be in form Xo. 2 in Part I. of Appendix 
 (A) hereto, with such variations as circumstances may 
 require. Such notice shall be in form Xo. 3 in the same 
 Part, with such variations as circumstances may require. 
 
 G. With respect to actions upon a bill of exchange or 
 promissory note, commenced within six months after the 
 same shall have become due and payable, the procedure, 
 under the Bills of Exchange Act, 18 & 19 Yict. c. 07, 
 shall continue to be used. 
 
 The Bills of Exchange Act, so far as it is material to set out, is 
 as follows : 
 
 The Summary PitocEDrRE on Bills of Exchange Act, 1S55. 
 18 & 19 Vict. c. 67. 
 
 An Act tofacilitatt the remedies on Bills of Exchange and Promissory 
 Notes, by the prevention of frivolous or fictitious defences to action* 
 (hereon. 
 
 (23rd July, 1853.) 
 "Whereas hond fide holders of dishonoured bills of exchange and 
 promissory notes are often unjustly delayed and put to unnecessary 
 expense in recovering the amount thereof, by reason of frivolous or 
 fictitious defences to actions thereon, and it is expedient that greater 
 facilities than now exist shoidd be given for the recovery of money 
 due on such bills and notes: be it enacted by the Queen's most 
 excellent Majesty, by and with the advice and consent of the Lords 
 spiritual and temporal, and Commons in this present Parliament 
 assembled, and by authority of the same, as follows : — - 
 
 From Oct. S. 1. " From and after the 24th day of October, 1855, all actions 
 
 a4». l8 5S». an y upon bills of exchange or promissory notes commenced within 
 b?lVs°of UP °" s * x montns after the same shall have become due and payable, 
 exchange, may be made by writ of summons in the special form con- 
 &c, may be tained in schedule A to this Act, annexed and endorsed as 
 by writ of therein mentioned ; and it shall be lawful for the plaintiff 
 form in i Q filing an affidavit of personal service of such writ within 
 
 schedule A. the jurisdiction of the Court, or an order for leave to proceed 
 Plaintiff on as provided by the 'Common Law Procedure Act, 1852,' and a 
 affidavit of C0 Py °^ the WI "it of summons and the endorsements thereon, in case 
 personal the defendant shall not have obtained leave to appear, and have 
 service may appeared to such writ according to the exigency thereof, at once to 
 at once sign, ^^n fj na ] judgment in the form contained in Schedule B to this Act 
 judgment annexed (on which judgment no proceedings in error shall lie), for 
 as form in any sum not exceeding the sum endorsed on the writ, together with 
 schedule B. interest at the rate specified (if any) to the date of the judgment, and
 
 FIRST SCHEDULE. — RULES OF COURT. 161 
 
 a sum for costs to be fixed by the masters of the Superior Courts, or Order II. 
 any three of them, subject to the approval of the judges thereof, or Writ of 
 any eight of them (of whom the Lord Chief Justices and the Lord Summons 
 Chief Baron shall be three), unless the plaintiff claim more than j^ re £° ce " 
 such fixed sum, in which case the costs shall be taxed in the '— 
 ordinary way, and the plaintiff may upon such judgment issue 
 execution forthwith." 
 
 S. 2. "A judgeof any of the said Courts shall, upon application with- Defendant 
 in the period of twelve days from such service, give leave to appear to showing a 
 such writ and to defend the action, on the defendant paying into the mer j"^° n 
 Court the sum endorsed on the writ, or upon affidavits satisfactory to have leave 
 to the judge, which disclose a legal or equitable defence, or such to appear, 
 facts as would make it incumbent on the holder to prove considera- 
 tion, or such other facts as the judge may deem sufficient to support 
 the application, and on such terms as to security or otherwise as to 
 the judge may seem fit." 
 
 S- 3. " After judgment the Court or a judge may under special cir- Judge may 
 cumstances set aside the judgment, and if necessary stay or set aside u . nder . S P C 
 execution, and may give leave to appear to the writ, and to defend stancesTet 
 the action, if it shall appear to be reasonable to the Court or judge aside judg- 
 so to do, and on such terms as to the Court or judge may seem just." ment. 
 
 S. 4. " In any proceedings under this Act it shall be competent to the Judge may 
 
 Court or a judge to order the bill or note sought to be proceeded be de ost°d 
 
 upon to be forthwith deposited with an officer of the Court, and with officer 
 
 further to order that all proceedings shall be stayed until the plaintiff of Court in 
 
 shall have given security for the costs thereof." certain 
 
 ° cases. 
 
 S. 5. " Theholderof every dishonoured bill of exchange or promissory Remedy for 
 note shall have the same remedies for the recovery of the expenses th . e recovery 
 incurred in noting the same for non-acceptance or non-payment, or of not^mr 08 
 otherwise by reason of such dishonour as he has under this Act for non-accept- 
 the recovery of the amount of such bill or note." ance of 
 
 dishonoured 
 bill. 
 
 S . 6. " The holder of any bill of exchange or promissory note may, if Holder of 
 lie think fit, issue one writ of summons according to this Act against cn-in 
 all or any number of the parties to such bill or note, and such writ issue one 
 of summons shall be the commencement of an action or actions summons 
 against the parties therein named respectively, and all subsequent a S ainst all 
 proceedings against such respective parties shall be in like manner, t j, e pities 
 so far as may be, as if separate writs of summons had been issued." to the bill. 
 
 S. 7. "The provisions of the 'Common Law Procedure Act, 1852,' Common 
 .ind the 'Common Law Procedure Act, 1854,' and all rules made V aw V roce " 
 under or by virtue of either of the said Acts shall, so far as the an d rule/ 
 same are or may lie made applicable, extend and apply to all pro- incorporated 
 ceedinga to lie had or taken under this Act." with this 
 
 Act. 
 
 S. 10. " Nothing in this Act shall extend to Ireland or Scotland." Extent of 
 
 Act. 
 
 S. 11. " In citingthisActinanyinstrument,document,orproeeedmg, Short title. 
 it shall lie sufficient to use the expression, 'The Summary Procedure 
 on Bills of Exchange Act, 1855.' "
 
 162 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order II. 
 Writ of 
 Summons 
 and Proce- 
 dure, <fec. 
 
 SCHEDULES REFERRED TO IN THE FOREGOING ACT. 
 
 (A.) 
 
 " Victoria, by the grace of God, &c 
 To C. D., of , in the county of 
 
 We warn you, that unless within twelve days after the service of 
 this writ on you, inclusive of the day of such service, you obtain leave 
 from one of the judges of the Courts at Westminster to appear, and 
 do within that time appear in our Court of in an action 
 
 at the suit of A. B., the said A. B. may proceed therein to judg- 
 ment and execution. Witness, &c. 
 
 Memorandum to be subscribed on the Writ. 
 
 N. B. — This writ is to be served within six calendar months from 
 the date hereof, or, if renewed, from the date of such 
 renewal, including the day of such date, and not afterwards. 
 
 Indorsement to be made on the Writ before service thereof. 
 
 This writ was issued by E. F., of , attorney for the 
 
 plaintiff, or this writ was issued in person by A. B., who resides at 
 (mention the city, town, or parish, and also the name of the 
 JiamUt, street, and number of tlw house of the plaintiff's residence.) 
 
 Indorsement. 
 
 The plaintiff claims ( pounds, principal and interest), 
 
 or pounds, balance of principal and interest due to him 
 
 as payee (or indorsee) of a bill of exchange or promissory note, of 
 which the foll< >wing is a copy : — - 
 
 (Here copy bill of exchange or promissory note, ai7(l all indorse- 
 ments upon it.) 
 
 And if the amount thereof be paid to the plaintiff or his attorney 
 within days from the service hereof, further proceedings 
 
 will be stayed. 
 
 Notice. 
 
 Take notice, that if the defendant do not obtain leave from one 
 of the judges of the Courts within twelve days after having been 
 served with this writ, inclusive of the day of such service, 
 to appear thereto, and do within such time cause an appear- 
 ance to be entered for him in the Court out of which this 
 writ issues, the plaintiff will be at liberty, at any time after 
 the expiration of such twelve days, to sign final judgment for any 
 sum not exceeding the sum above claimed, and the sum of £ 
 for costs, and issue execution for the same. 
 
 Leave to appear may be obtained on an application at the Judges' 
 Chambers, Serjeants' Inn, London, supported by affidavit showing 
 that there is a defence to the action on the merits, or that it is 
 reasonable that the defendant should be allowed to appear in the 
 action. 
 
 Indorsement to be made upon the Writ after Service thereof. 
 
 This writ was served by X. V. on L. M. (the defendant 
 
 the defendants), on Monday, the day of , 18 . 
 
 By -V. T."
 
 FIRST SCHEDULE. — RULES OP COURT. 163 
 
 (B.) 
 
 Order II. 
 Writ of 
 
 " In the Queen's Bench : . and Proce- 
 
 On the day of , , in the year of our Lord, dure, &c. 
 
 18 (day of signing Judgment.) 
 
 England, \A. B. in his own person (or by his attorney) 
 
 to wit. J sued out a writ against C. D., indorsed as follows : — 
 
 (Here copy Indorsement of Plaintiff's Claim.) 
 And the said C. D. has not appeared : 
 
 Therefore it is considered that the said A. B. recover against the 
 said C. D. pounds, together with pounds for cost of suit. 
 
 By Reg. Gen., November 26th, 1855. 
 
 The indorsements on writs under this Art (the <d)ore Act) may he 
 in the following form : — 
 
 This writ was issued hy E . F., of, &c, attorney for the plaintiff, 
 or by A. B., who resides at(mcntion the city, town, or parish, and also 
 the name of the hamlet, street, and the number of the house of the 
 plaintiff's resilience.) 
 
 The plaintiff claims £ , principal and interest (or 
 
 pounds, balance of principal and interest), due to him as the payee, 
 (or indorsee) of a bill of exchange (or promissory note) of which 
 the following is a copy : — 
 
 (Here copy hill of exchange or promissory vote, and all endorsements 
 upon it.) 
 
 And also shillings for noting (if noting has been paid), 
 
 and £ for costs. And if the amount thereof be paid to the 
 
 plaintiff or his attorney within four days from the service hereof, 
 further proceedings will be stayed. 
 
 Notice. 
 
 Take notice, that if the defendant do not obtain leave from one 
 of the judges of the Courts within twelve days after having been 
 served with this writ, inclusive of the day of such service, to appear 
 thereto, and do " not " within such time cause an appearance to be 
 entered for him in the Court out of which this writ issues, the 
 plaintiff will be at liberty, at any time after the expiration of such 
 twelve days, to sign final judgment for any sum not exceeding the 
 sum above claimed, and the sum of £ for costs, and issue 
 
 execution for the same. 
 
 Leave to appear may be obtained on an application at the Judges' 
 Chambers, .Serjeants' Inn, London, supported by affidavit showing 
 that there is a, defence to the action on the merits, or that it is 
 reasonable that the defendant should be allowed to appear in the 
 action. 
 
 Indorsement to he made on the Writ after Service thereof. 
 
 This writ was served by X. Y. on L. M. (the defendant), on 
 Monday, the day of 185 , by X. Y." 
 
 A cheque on a banker is a bill of exchange within this act; 
 Eyre v. Waller, 5 H. & N. 460 ; so is a note payable on demand, 
 and the six months in this ease run from the date : Malthy v. 
 Murrells, 5 H. & N. 813. The issue of such a writ after the six 
 months is only an irregularity, and may be waived by consent, 
 ibid ; or the irregularity may be amended by turning the writ 
 into one of the ordinary kind, Leigh v. Baker, 2 C. 13., N. S., 367.
 
 164 
 
 8UPKEME COURT OF JUDICATURE ACT, 1875. 
 
 By R. G. M. T., 1855, modified by R. G. H. T., 1858, no claim 
 could be joined in the same action with that upon the bill, except 
 
 Order II. 
 Writ of 
 
 7 1 p° ns _ one upon the consideration ; and the effect of the rule now under 
 dure &c. comment would seem to be to keep alive this restriction. 
 
 Application for leave to appear is made at chambers. In the 
 Queen's Bench, Common Pleas, or Exchequer Divisions, the applica- 
 tion is to a master ; Order LIV., Rule 2. 
 
 The defendant, by the terms of the Act, is entitled to be let in to 
 defend upon bringing into Court the amount indorsed on the writ. 
 But more frequently the application is based upon affidavits intended 
 t<> show that the defendant has a good defence to the action. The 
 practice with respect to giving leave to appear on this ground has 
 not always been quite uniform. But the true rule, and that now 
 acted upon, seems to be that if the defendant, by his affidavit, dis- 
 closes a real defence of whatever nature, he is entitled to leave 
 to appear; Agra Bank v. Leighton, Law Rep. 2 Ex. 56; C"s> /! <i 
 v. Darton, Law Rep. 8 C. P. 100 ; and the Court or a judge 
 will not try the truth of the defence on affidavit, but if there be 
 reason to doubt the genuineness of the defence, leave may be re- 
 fused or granted conditionally ; Agra Bank v. Leighton, ubi supra. 
 In such cases it is not unusual to require the defendant to bring into 
 Court the whole or a part of the sum claimed as the condition of 
 being allowed to defend. 
 
 The leave to appear may be rescinded if it be shown by affidavit 
 that the defence primd facie disclosed before the defendant's affi- 
 davit does not exist; Agra Bank v. Leighton, ubi supra; or for 
 other reasons, e.g., that the leave has been fraudulently obtained ; 
 Pollock v. Turnock, W. 1 H. & N. 741. 
 
 The defendant, by his affidavit, has only to show any ground of 
 defence. He is not restricted afterwards from relying on any other 
 defence which he can prove. Saul v. Jones, 1 E. & E. 59. 
 
 The Order in which the rule now under comment occurs purports 
 to deal with "writs of summons and procedure, &c," i.e. procedure 
 with respect to writs . When therefore the rule says that the pro- 
 cedure under the Bills of Exchange Act shall continue to be used, it 
 is pretty obvious that it means the procedure so far as relates to the 
 writ, its issue, and its pecidiar effect in requiring the Defendant to 
 obtain leave to appear. It cannot have been intended to keep 
 alive in this particular instance the old system of pleading and 
 procedure generally. 
 
 7. The writ of summons in every Admiralty action in 
 rem shall be in Form Xo. 4 of Part I. of Appendix (A) 
 hereto, with such variations as circumstances may require. 
 
 8. Every writ of summons and also every other writ 
 shall hear date on the day on which the same shall be 
 issued, and shall be tested in the name of the Lord Chan- 
 cellor, or if the office of Lord Chancellor shall be vacant, 
 in the name of the Lord Chief Justice of England.
 
 FIRST SCHEDULE. — RULES OF COURT. 165 
 
 -.-■>, ,,-r, TTT Order III. 
 
 OliDEIt III. Indorse- 
 
 merits of 
 
 Claim. 
 
 Indorsements of Claim. — 
 
 1. The indorsement of claim shall be made on every 
 writ of summons before it is issued. 
 
 Four different kinds of indorsement are dealt with in this 
 order : — 
 
 1. The "statement of the nature of the claim made, or of the relief 
 
 or remedy required," prescribed by Order II., Rule 1, and 
 dealt with in the first five rules of this order ; 
 
 2. The indorsement of the amount of debt and costs required, 
 
 when the claim is for a debt, by Rule 7 of this order, following 
 s. 8 of the C. L. P. Act, 1852 ; 
 
 3. The special indorsement authorized by Rule 6 of this order, as 
 
 heretofore by s. 25 of the C. L. P. Act, 1852, to warrant pro- 
 ceedings in case of default of appearance under Order XII., 
 Rules 3 and 4, or notwithstanding appearance under 
 Order XIV. 
 
 4. The indorsement of a claim for an account under Rule 8 of 
 
 this order, to warrant proceedings under Order XV. 
 
 2. In the indorsement required by Order II. , liule 1, it 
 shall not be essential to set forth the precise ground of 
 complaint, or the precise remedy or relief to which the 
 plaintiff considers himself entitled. The plaintiff may by 
 leave of the Court or Judge amend such indorsement so as 
 to extend it to any other cause of action or any additional 
 remedy or relief. 
 
 The object of this indorsement seems to be to identify the con- 
 troversy and the claim to which the action relates, so as, amongst 
 other advantages, to facilitate a settlement without; the action's 
 going further. In certain cases, as where the defendant fails to 
 appear, the indorsement will take the place of pleadings, and 
 damages may be assessed upon it ; Order XIIL, Rule 6. But if the 
 action proceeds and pleadings are delivered, the plaintiff in his 
 claim must state both his complaint and the relief he seeks. He 
 cannot rely upon his indorsement for either ; Order XIX., Rule 2. 
 
 3. The indorsement of claim may be to the effect of 
 such of the Forms in Part II. of Appendix (A) hereto as 
 shall be applicable to the case, or if none be found applic- 
 able then such othor similarly concise form as the nature 
 of the case may require. 
 
 4. If the plaintiff sues or the defendant or any of the 
 defendants is sued in a representative capacity, the indorse- 
 ment shall show, in manner appearing by the statement in 
 Appendix (A) hereto, Part II., Sec. VII 1, or by any other 
 statement to the like effect, in what capacity the plaintiff 
 or defendant sues or is sued.
 
 Claim. 
 
 1GG SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order j a. 5 j[ n -probate actions the indorsement shall show 
 
 Indorse- . 1 -i • • /»» 1 ■ -i • • • 
 
 mentsof whether the plamtifl claims as creditor, executor, admini- 
 strator, residuary legatee, legatee, next of kin, heir-at-law, 
 
 devisee, or in any and what other character. 
 
 G. In all actions where the plaintiff seeks merely to 
 recover a debt or liquidated demand in money payable by 
 the defendant, with or without interest, arising upon a 
 contract, express or implied, as, for instance, on a bill of 
 exchange, promissory note, cheque, or other simple contract 
 debt, or on a bond or contract under seal for payment of a 
 liquidated amount of money, or on a statute where the 
 sum sought to be recovered is a fixed sum of money or in 
 the nature of a debt, or on a guaranty, whether under seal 
 or not, where the claim against the principal is in respect 
 of such debt or liquidated demand, bill, cheque, or note, 
 or on a trust, the writ of summons may be specially 
 indorsed with the particulars of the amount sought to be 
 recovered, after giving credit for any payment or set-off. 
 
 The use of this indorsement is, as it always has been, purely 
 optional. But the advantage of using it is very great ; for it will 
 not only, as heretofore, entitle the plaintiff to final judgment in case 
 of default of appearance ; Order XIII., Rules 3 and 4, post, p. 186, 
 but also to final judgment notwithstanding appearance, unless the 
 defendant can satisfy a judge that he has a defence, or ought to be 
 allowed to defend ; Order XIV., post, p. 189. 
 
 This ride and the others referred to in the last note do not interfere 
 with the right to proceed under the Bills of Exchange Act, see 
 Order II., Bide 6, ante, p. 160. 
 
 This rule corresponds to s. 25 of the C. L. P. Act, 1S52, but it differs 
 in two points. First, the rule includes the case of a liquidated sum 
 payable on a trust, which the former section did not. Secondly, there 
 are no words in the rule, as there were in the section, limiting its 
 operation to cases in which the defendant resides within the 
 jurisdiction. 
 
 7. Wherever the plaintiff's claim is f or a debt or liqui- 
 dated demand only, the indorsement, beside stating the 
 nature of the claim, shall state the amount claimed U<v 
 debt, or in respect of such demand, and for costs respect- 
 ively, and shall further state, that upon payment thereof 
 within four days after sendee, or in case of a writ not for 
 service within the jurisdiction within the time allowed for 
 appearance, further proceedings will be stayed. Such 
 statement may be in the form in Appendix (A) hereto, 
 Part II., Sec. III. The defendant may, notwithstanding 
 such payment, have the costs taxed, and if more than one- 
 sixth shall be disallowed, the plaintiff's solicitor shall pay 
 the costs of taxation. 
 
 The use of this indorsement, it will be observed, is obligatory.
 
 F1EST SCHEDULE. — HULKS OF COUBT. 1G7 
 
 This rule is to the same effect as s. 8 of the C. L. P. Act, 1852. Order IV. 
 The only effect of such indorsement is to entitle the defendant to Indorsement 
 
 settle the claim by payment within four days ; the plaintiff is not " 
 
 bound by it for any other purpose ; Jacquot v. Boura, 5 M. & W. 
 155, 150'. 
 
 8. In all eases of ordinary account, as, for instance, in 
 the case of a partnership or executorship or ordinary trust 
 account, where the plaintiff, in the first instance, desires to 
 have an account taken, the writ of summons shall he 
 indorsed with a claim that such account be taken. 
 
 For proceedings when a writ is thus indorsed, see Order XV., 
 post, p. 191. 
 
 The use of this indorsement is optional ; but as, under the Order 
 referred to, it will ordinarily entitle the plaintiff to an order for an 
 account, as of course, and so give him often all that he could hitherto 
 have obtained by a Chancery suit, the advantages of its use are 
 obvious. 
 
 ORDER IV. 
 
 Indorsement op Address. 
 
 1. The solicitor of a plaintiff suing by a solicitor shall 
 indorse upon every writ of summons and notice in lieu of 
 
 ....,.;.... ~t n ™,.;t ,.f „,,,,,,„„,.. +1„, o,l,l HJCS nf fhn nlaintitf 
 
 2. Notwithstanding anything to the contrary contained Order iv. 
 
 Rule la. 
 
 in Order IV. of "The Rules of the Supreme Court," Rules 
 1 and 2 of such Order shall only apply where the writ of / 
 summons is issued out of the London Office. 
 
 where any such solicitor is only agent ol anotnev solicitor, 
 he shall add to his own name or firm and place of business 
 the name or firm and place of business of the principal 
 solicitor. 
 
 Under the ('. L. P. Act, 1852, s. 6, the attorney issuing the 
 writ, or the plaintiff, if he did so in person, was obliged to indorse 
 his name and residence. But the provision in these rules as to an 
 address for service indorsed on the writ is new. 
 
 It has not hitherto been necessary to indorse the address of the 
 plaintiff, in a case where an attorney was employed, either <>n a 
 Common law writ, or on a bill in Chancery. 
 
 2. A plaintiff suing in person shall indorse upon every 
 writ of summons and notice in lieu of service of a writ of 
 summons his place of residence and occupation, and also, 
 if his place of residence shall be more than three miles from
 
 Summons. 
 
 108 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order y. Temple Bar, another proper place, to he called his address 
 Writs of for service, which shall not he more than three miles from 
 Temple Ear, where writs, notices, petitions, orders, 
 summonses, warrants, and other documents, proceedings, 
 and written communications may he left for him. 
 
 [The, above two Rule* are to apply to all cases in which 
 the writ of summons is issued out of the London office, or 
 out of a district registry where the defendant lias the option 
 of entering an appearance cither in the district registry or 
 the London office.] 
 
 3. In all other cases where a writ of summons is issued 
 out of a district registry it shall he sufficient for the 
 solicitor to give on the writ the address of the plaintiff and 
 his own name or firm and his place of husiness within the 
 district, or for the plaintiff if he sues in person to give on 
 the writ his place of residence and occupation, and if his 
 place of residence he not within the district, an address for 
 service within the district. 
 
 ORDEE V. 
 
 Issue of Writs of Summons. 
 
 1. Place of Issue. 
 
 1. In any action other than a Prohate action, the 
 plaintiff wherever resident may issue a writ of summons 
 out of the registry of any district. 
 
 London is not expressly mentioned in this rule ; but it seems 
 obvious that the intention cannot be to prohibit the issue of writs in 
 London. 
 
 It may be convenient here to state shortly the effect of the 
 rules in this schedule with respect to the place in which proceedings 
 are to be earned on, and the jurisdiction of District Registrars : — 
 
 Any writ of summons may be issued, in the discretion of the 
 plaintiff, either in the office in London, or in any District Registry. 
 If the writ is issued in London the appearances will be entered in 
 
 London (Order XII., Rule 1). 
 If the writ is issued in a District Registry, any defendant residing 
 or carrying on business within the district must appear there 
 (Order XII., Rule 2) ; the district being by s. 60 of the Act 
 of 1873, ante, p. 88, to be fixed by Order in Council. See the 
 Order, post, p. 418. Any defendant not residing or carrying 
 on business within the district may appear either in the 
 District Registry or in London (Order XII., Rule 3). 
 In any case, a defendant, who appears elsewhere than where the 
 writ is issued, must give notice of his appearance ; Order XII. 
 Rule 6.
 
 FIRST SCHEDULE. RULES OF COURT. 169 
 
 If the defendant or all the defendants appear in the District Order V. 
 Registry the action will proceed there (Order XII., Rule 4). w"tf 
 
 If the defendant or any of the defendants appear in London the s ummons , 
 action will proceed there (Order XII., Rule 5). — 
 
 Although the action proceeds in London, the Court or a Judge 
 may still order any books or documents to be produced or accounts 
 to be taken or inquiries made in any District Registry (s. 66 of 
 Judicature Act, 1873). And in this case, as well as when the action 
 proceeds in a District Registry, the trial may be anywhere (Order 
 XXXVI., Rules 1 et seq.). 
 
 When the action proceeds in the District Registry the proceedings 
 will be taken there down to the following points : — 
 
 i. If final judgment can be entered or an order for an account 
 had by default down to such judgment or order (Order XXXV., 
 Rule 1). 
 
 ii. If an interlocutory judgment can be entered for default, either 
 of appearance or pleading, both it and after damages are assessed, 
 final judgment may be entered in the District Registry (ibid). 
 
 iii. Judgment may be entered in the Registry, unless otherwise 
 ordered (Ibid). 
 
 iv. In other cases proceedings go on in the Registry down to notice 
 of trial (S. 64 of the Judicature Act, Order XXXV., Rule 1.) 
 
 Whilst the action is in the District Registry the registrar will have 
 the jurisdiction of a judge at chambers, except in matters over winch 
 a Master of the Queen's Bench, Common Pleas, or Exchequer 
 Division has no jurisdiction (Order XXXV., Rule 4 ; Order LIV., 
 Rule 2). And an appeal lies to a judge from a district registrar 
 as from a master (Order XXXV., Rule 7). Execution may issue 
 and costs be taxed in the Registry (Order XXXV., Rule 3). 
 
 All documents required to be filed will be filed in the Registry 
 (Order XIX., Rule 29). 
 
 If the action would, under the rules before stated proceed in the 
 District Registry, it may be removed by any defendant as of right 
 upon notice at any time before delivering his defence, except that if 
 the writ be specially indorsed he must either have obtained leave t > 
 defend under Order XIV., or four days after appearance nmst have 
 elapsed without the jdaintiff applying for final judgment under 
 that order. And the action may, by leave of the Court or a Jui 
 be removed on the application of any party (s. 65 of the Judicature 
 Act. And conversely if the action is proceeding in London a judge 
 may remove it to a District Registry (Order XXXV., Rules 11 to 13). 
 
 2 In all cases where a defendant neither resides nor 
 carries on business within the district out of the registry 
 whereof a writ of summons is issued, there shall be a state- 
 ment on the face of the writ of summons that such defen- 
 dant may cause an appearance to be entered at his option 
 cither at the district registry or the London oihce, or a 
 statement to the like effect. 
 
 3. In all cases where a defendant resides or carries on 
 business within the district, and a writ of summons is 
 issued out of the district registry, there shall be a state- 
 ment on the face of the writ of summons that the defen- 
 dant do cause an appearance to be entered at the district 
 registry, or to the like effect. 
 
 I
 
 170 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order V. 
 Issue o{ 
 
 Writs of 
 
 2. Option to choose division in certain rates. 
 
 4. Subject to the power of transfer, every person by 
 whom any cause or matter may be commenced in the High 
 Court of Justice which would have been within the non- 
 exclusive cognizance of the High Court of Admiralty, 
 if the said Act had not passed, shall assign such cause or 
 matter to any one of the divisions of the said High Court, 
 including the Probate, Divorce, and Admiralty Division, as 
 he may think fit, by marking the document by which the 
 same is commenced with the name of the division, and 
 giving notice thereof to the proper officer of the Court. If 
 so marked for the Chancery Division the same shall be 
 assigned to one of the Judges of such division by marking 
 the same with the name of such of the said Judges as the 
 plaintiff or petitioner (subject to such power of transfer) 
 may think fit. 
 
 Section 31 of the Judicature Act assigned certain classes of 
 causes (subject to rules of court) to the various Divisions of the High 
 Court of Justice, those assigned to the Probate, Divorce, and 
 Admiralty Divisions being, in addition to pending matters, all 
 causes and matters hitherto within the exclusive cognisance of the 
 Probate, Divorce, or Admiralty Courts. Section 35 (subject to 
 rules of court and the provisions of the previous section) empowered 
 a plaintiff to lay his action in any division, not being the Probate, 
 Divorce, and Admiralty Division. The result of those sections, if 
 uncontrolled by rule, would have been to deprive suitors of the 
 power of taking into the Court of Admiralty any cause in which 
 that Court has hitherto had concurrent jurisdiction with any other 
 Court. Hence the necessity for the above rule. But the rule 
 appears now to be rendered superfluous by s, 11 of the Act of 1875, 
 which is substituted for s. 35 of the earlier Act, ante, p. 132. 
 
 As to marking the writ with the name of the division to which 
 the action is assigned, see s. 11 of the Act of 1875, ante, p. 132, and 
 Order II., Eule 1, ante, p. 158 ; as to notice to the proper officer, 
 sec ibid., and Eule 9, post. 
 
 As to marking with the name of a judge in the Chancery Division, 
 see ss. 33 and 42 of the Judicature Act, 1873, ante, pp. 73, 80. 
 
 As to transfers, see Order LI., post, p. 290, and note thereto. 
 
 3. Qeyierally. 
 
 5. Writs of summons shall be prepared by the plaintiff 
 or his solicitor, and shall be written or printed, or partly 
 written and partly printed, on paper of the same descrip- 
 tion as hereby directed in the case of proceedings directed 
 to be printed. See Order LYL, Uule 2, post, p. 299. 
 
 6. Every writ of summons shall be sealed by the 
 proper officer, and shall thereupon be deemed to be issued. 
 
 7. The plaintiff or his solicitor shall, on presenting 
 any writ of summons for sealing, leave with the officer a
 
 FIRST SCHEDULE. — RULES OF COURT. 171 
 
 copy, written or printed, or partly written and partly Order v. 
 printed, on paper of the description aforesaid, of such vvriSof 
 writ, and all the indorsements thereon, and such copy Summons. 
 shall he signed by or for the solicitor leaving the same, or 
 by the plaintiff himself if he sues in person. 
 
 8. The officer receiving such copy shall file the same,| 
 and an entry of the filing thereof shall be made in a book I 
 to be called the cause book, which is to be kept in the \ 
 manner in which cause books have heretofore been kept ] 
 by the clerks of records and writs in the Court of Chancery, 
 and the action shall be distinguished by the date of the 
 year, a letter, and a number, in the manner in which 
 causes are now distinguished in such last-mentioned cause 
 books. 
 
 ORDER V. — Issue of Writs of Summons. 
 
 3. The following words are hereby added to the end Order v, 
 of Order V., Rule 8, of " The Rules of the Supreme 21* e " / 
 Court " :— 
 
 " And when such action shall be commenced in a dis- 
 trict registry, it shall be further distinguished by the name 
 of such registry." 
 
 , ^.^ «* .uu uitimuu uuuseij, anu give nonce to tile 
 
 proper officer. 
 
 4. In Particular Actions. 
 
 10. The issue of a writ of summons in Probate actions 
 shall be preceded by the filing of an affidavit made by the 
 plaintiff or one of the plaintiffs in verification of the in- 
 dorsement on the writ. 
 
 11. In Admiralty actions in rem no writ of summons 
 shall issue until an affidavit by the plaintiff or his agent 
 has been filed, and the following provisions complied with : 
 
 (a.) The affidavit shall state the name and description of 
 the party on whose behalf the action is instituted,, 
 the nature of the claim, the name and nature of 
 the property to be arrested, and that the claim 
 has not been satisfied. 
 
 (I.) In an action of wages the affidavit shall state the 
 national character of the vessel proceeded against, ; 
 and if against a foreign vessel, that notice of the 
 institution of the action has been given to tho 
 Consul of the State to which the vessel belongs, 
 if there be one resident in London (a copy <>f tin. 
 notice shall be annexed to the affidavit.) 
 
 I 2
 
 172 SUrREME COURT OF JUDICATURE ACT, 1875. 
 
 Order vi. u \ j n an ac tion of bottomry, the bottomry bond, and 
 
 \ i fin ■ urrcnt 
 
 Writs. if in a foreign language also a notarial transla- 
 
 tion thereof, shall he produced for the inspection 
 and perusal of the Registrar, and a copy of the 
 bond, or of the translation thereof, certified to be 
 correct, shall be annexed to the affidavit. 
 (d.) In an action of distribution of salvage the affidavit 
 shall state the amount of salvage money awarded 
 or agreed to be accepted, and the name, address, 
 and description of the party holding the same, 
 (e.) The Court or Judge may in any case, if he think 
 fit, allow the writ of summons to issue although 
 the affidavit may not contain all the required 
 particulars. In a wages cause he may also 
 waive the service of the notice, and in a cause of 
 bottomry, the production of the bond. 
 
 12. If, when any property is under arrest in Admiralty, 
 a second or subsequent action is instituted against the 
 same property, the solicitor in such second action may, 
 subject to the preceding rides, take out a writ of summons 
 in rem and cause a caveat against the release of the pro- 
 perty to be entered in the Caveat Release Book herein- 
 after mentioned. 
 
 ORDER VI. 
 
 Concurrent Vrits. 
 
 1. The plaintiff in any action may, at the time of or at 
 any time dming twelve months after the issuing of the 
 original writ of summons, issue one or more concurrent 
 writ or writs, each concurrent writ to bear teste of the 
 same day as the original writ, and to be marked witli a 
 seal bearing the word "concurrent," and the date of issu- 
 ing the concurrent writ ; and such seal shall be impressed 
 upon the writ by the proper officer : Provided always, 
 that such concurrent writ or writs shall only be in force 
 for the period during which the original writ in such 
 action shall be in force. 
 
 Hitherto under s. 9 of C. L. P., 1852, a concurrent writ 
 could only be issued within, and only remained in force for, six 
 months after the issue of the original writ, that being the time for 
 which the original writ was operative. The time is by this 
 rule extended to twelve months. 
 
 By the terms of the rule the concurrent writ can only be 
 issued within the twelve months for which the original writ is
 
 FIRST SCHEDULE. — RULES OP COURT. 1 73 
 
 current. And nnder similar language in the section of the C. L. P. Order VII. 
 Act, 1852, above referred to, it was held that a concurrent writ Disclosure 
 could not be issued after the renewal of the original writ ; Cole v. by Solicitors 
 Sherard, 11 Exch. 482. tiffs. " 
 
 As to the renewal of original and concurrent writs, see Order — 
 
 VIII., post, p. 174. 
 
 2. A writ for service within the jurisdiction may be 
 issued and marked as a concurrent writ with one for 
 service, or whereof notice in lieu of service is to be given, 
 out of the jurisdiction ; and a writ for service, or whereof 
 notice in lieu of service is to he given, out of the jurisdic- 
 tion may he issued and marked as a concurrent writ with 
 one for service within the jurisdiction. 
 
 This rule is identical with s. 22 of C. L. P. Act, 1852. 
 
 ORDER VII. 
 
 Disclosure by Solicitors and Plaintiffs. 
 
 1. Every solicitor whose name shall he indorsed on any 
 writ of summons shall, on demand in writing made by or 
 on behalf of any defendant who has been served there- 
 with or has appeared thereto, declare forthwith whether 
 such writ has been issued by him or with his authority or 
 privity ; and if such solicitor shall declare that the writ 
 was not issued by him or with his authority or privity, all 
 proceedings upon the same shall be stayed, and no further 
 proceedings shall be taken thereupon without leave of the 
 Court or a Judge. 
 
 This rule is substantially the same as s. 77 of the C. L. P. Act, 
 1852, except that under that section the attorney, if he stated that 
 the writ had been issued by his authority, might further be required, 
 on pain of contempt, to state the occupation and place of abode of 
 the plaintiff. The words requiring this are omitted in this rule, 
 but by Order IV., Pule 1, ante, p. 167, the plaintiff's address must 
 be indorsed on the writ. 
 
 2. When a writ is sued out by partners in the name of 
 their firm, the plaintiffs or their solicitors shall, on demand 
 in writing by or on behalf of any defendant, declare 
 forthwith the names and places of residence of all the 
 persons constituting the firm. And if the plaintiffs or 
 their solicitor shall fail to comply with such demand, all 
 proceedings in the action may, upon an application for 
 that purpose, be stayed upon such loins as the Court or a 
 Judge may direct. And when the names of the partners
 
 I 74 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 order viu. are so declared, the action shall proceed in the same 
 
 wri t e . wa ° m anner and the same consequences in all respects shall 
 
 — follow as if they had been named as the plaintiffs in the 
 
 writ. But all proceedings shall, nevertheless, continue in 
 
 the name of the firm. 
 
 By Order XVI., Rule 10, post, p. 195, any party to an action in 
 which partners either sue on- are sued in the name of their firm may 
 apply by summons for a statement of the names of the partners, 
 to be furnished in such manner, and verified on oath or otherwise, 
 as may be ordered. 
 
 As to proceedings by and against partners in the name of their 
 firm generally, see note to Order IX., Rule 6, post. p. 176. 
 
 OEDER VIII. 
 
 Renewal of "Writ. 
 
 1. Xo original writ of summons shall be in force for 
 more than twelve months from the day of the date thereof, 
 including the day of such date ; but if any defendant 
 therein named shall not have been served therewith, the 
 plaintiff may, before the expiration of the twelve months, 
 apply to a Judge, or the District Registrar, for leave to 
 renew the writ: and the Judge or Registrar, if satisfied that 
 reasonable efforts have been made to serve svich defendant, 
 or for other good reason, may order that the original 
 or concurrent writ of summons be renewed for six 
 months from the date of such renewal, and so from time 
 to time during the currency of the renewed writ. And 
 the writ shall in such case be renewed by being marked 
 with a seal bearing the date of the day, month, and year of 
 such renewal ; such seal to be provided and kept for that 
 purpose at the proper office, and to be impressed upon the 
 writ by the proper officer, upon delivery to him by the 
 plaintiff or his solicitor of a memorandum in Form No. 5, 
 in Appendix A, Part I. ; and a writ of summons so renewed 
 shall remain in force and be available to prevent the 
 operation of any statute whereby the time for the commence- 
 ment of the action may be limited, and for all other purpi »ses, 
 from the date of the issuing of the original writ of summons. 
 
 This rule introduces two important changes. On the one hand, 
 a writ of summons has hitherto been in force, unless renewed, only 
 for six months (C. L. P. Act, 1852, s. 11) ; whereas under this rule 
 it will continue current for twelve months. On the other hand, the 
 writ, if not served, might, as of right, during its currency, be renewed 
 for >ix months from the date of renewal, and so on from time to 
 time during the currency of the renewed writ ; so as to keep the
 
 FIRST SCHEDULE. — RULES OP COURT. I - t 
 
 action alive without service, and thereby defeat the statute of Order I X 
 limitations for an indefinite time (ibid) ; whereas under this rule a ^ T \"~ e r 
 writ can only be renewed by leave, if reasonable efforts have been Summons, 
 made to serve the defendant, or for other good reason. 
 
 2. The production of a writ of summons purporting to 
 be marked with, the seal of the Court, showing the same 
 to have been renewed in manner aforesaid shall be suffi- 
 cient evidence of its having been so renewed, and of the 
 commencement of the action as of the first date of such 
 renewed writ for all purposes. 
 
 This rule is taken from s. 13 of the C. L. P. Act, 1852. 
 
 ORDER IX. 
 
 Service of Writ of Summons. 
 
 1. Mode of Service. 
 
 1. No service of writ shall be required when the 
 defendant, by his solicitor, agrees to accept service, and 
 enters an appearance. 
 
 See Order XII. , Pule Impost, p. 183. 
 
 2. When service is required the writ shall, wherever itZ& 
 is practicable, be served in the manner in which personal 
 service is now made, but if it be made to appear to the 
 Court or to a Judge that the plaintiff is from any cause 
 unable to effect prompt personal service, the Court or Judge 
 may make such order for substituted or other service, or 
 for the substitution of notice for service, as may seem 
 just. 
 
 As to the practice in obtaining an order for substituted service, 
 see Order X., post, p. 183. 
 
 Substituted service has not hitherto been in use in the Common 
 Law Courts. The equivalent practice has been that provided by 
 S. 17 of the C. L. P. Act, 1852, under which if reasonable efforts had 
 been made to effect service, and either the writ had come to the 
 defendant's knowledge, or he wilfully evaded service, an order might 
 be obtained to proceed as if personal service had been effected. 
 
 In Chancery, substituted service of a copy of the bill has been 
 allowed, by leave of the Court, in all cases in which, under the 
 older practice, substituted service of the subpoena might have been 
 allowed ; ( Ions. < Orders, Order X., Rule 2. The cases decided upon 
 this matter will be found in Morgan's Chancery Acts and Orders, at 
 p. 419, 4th edit. 
 
 In Admiralty, by Admiralty Pules, 29th Nov. 1859, Rule 170, 
 substituted service of a citation in personam might be allowed, or 
 Bervice dispensed with altogether, where personal service could not 
 be effected.
 
 176 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order IX. I n Probate cases, by Rules, Contentious Business, 1862, Rules 18, 
 
 Service of 19, citations migbt be served within Great Britain or Ireland, if per- 
 V. m of sonal service could not be effected, as the judge or registrar directed. 
 
 Out of the United Kingdom, they might be served by advertise- 
 ment, under like directions. 
 
 The new rule gives in terms a very wide discretion to the Courts, 
 for it allows substituted service to be ordered if, from any cause, the 
 plaintiff is unable to effect prompt personal service. 
 
 2. On particular Defendants. 
 
 3. "When husband and wife are both defendants to the 
 action, service on the husband shall be deemed good 
 service on the wife, but the Court or a Judge may order 
 that the wife shall be served with or without service on 
 the husband. 
 
 4. When an infant is a defendant to the action, service 
 on his or her father or guardian, or if none, then upon the 
 person with whom the infant resides or under whose care 
 he or she is, shall, unless the Court or Judge otherwise 
 order, be deemed good service on the infant ; provided 
 that the Court or Judge may order that service made or to 
 be made on the infant shall be deemed good service. 
 
 5. When a lunatic or person of unsound mind not so 
 found by inquisition is a defendant to the action, service 
 on the committee of the lunatic, or on the person with 
 whom the person of unsound mind resides or under 
 whose care he or she is, shall, unless the Court or Judge 
 otherwise orders, be deemed good service on such 
 defendant. 
 
 3. On Partners and other Bodies. 
 
 6. "Where partners are sued in the name of their firm, 
 the writ shall be served either upon any one or more of 
 the partners or at the principal place within the jurisdic- 
 tion of the business of the partnership upon any person 
 having at the time of service the control or management 
 of the partnership business there ; and, subject to the 
 Rules hereinafter contained, such service shall be deemed 
 good service upon the firm. 
 
 The power given by these rules to partners to sue and be sued in 
 the name of their firm is entirely new. The system adopted for giving 
 effect to the change is shortly as follows : — 
 
 Power to partners to sue and be sued in the name of the firm is 
 
 given by Order XVI., B,ule 10 (post, p. 195). 
 If partners are suing in the name of the firm they must, on 
 demand of the defendant, disclose the names of the partners. 
 (Order VII., Rule 2, ante, p. 173).
 
 FIRST SCHEDULE. RULES OF COURT. 177 
 
 ORDER IX. — Service of Writ of Summons. 
 4. "Where one person carrying on business in the name Order ix 
 of a firm apparently consisting of more than one person Kule oa ' 
 shall be sued in the firm name, the writ may be served at^ 
 the principal place within the jurisdiction of the business ' 
 so carried on upon any person having at the time of ser- 
 vice the control or management of the business there ; and, 
 subject to any of the Rules of the Supreme Court, such 
 service shall be deemed good service on the person so 
 sued. 
 
 or against any person admitted or adjudged to be a partner, 
 or against any person served as a partner with the writ who has 
 failed to appear. If the judgment creditor claims to be entitled 
 to issue execution against any one else as a partner in the firm, 
 he may apply for an order to that effect, and an issue may be 
 directed to try the question. 
 As to service upon corporations, whether English or foreign, see . 
 the next rule. 
 
 7. Whenever, by any statute, provision is made for 
 service of any writ of summons, bill, petition, or other 
 process upon any corporation, or upon any hundred, or 
 the inhabitants of any place, or any society or fellowship, 
 or any body or number of persons, whether corporate or 
 otherwise, every writ of summons may be served in the 
 manner so provided. 
 
 By the C. L. P. Act, 1852, s. 16, "Every such writ of summons 
 issued against a corporation aggregate, may be served on the mayor 
 or other head officer, or on the town clerk, clerk, treasurer, or secre- 
 tary of such corporation ; and every such writ issued against the 
 inhabitants of a hundred or other like district, may be served on the 
 high constable thereof, or any one of the high constables thereof ; and 
 every such writ issued against the inhabitants of any county of any city 
 or town, or the inhabitants of any franchise, liberty, city, town or 
 place not being part of a hundred or other like district, on some 
 peace officer thereof." 
 
 It has been held that a foreign corporation having a place of 
 business and trading in England may be sued in this country, and 
 served in the manner pointed out in this section, the officer in 
 England being for this purpose a head officer; Newby v. Van 
 < >/•/""- Law Rep., 7 Q. B. 293; see also per Lord »St. Leonards in 
 The Carroii Iron Company v. Maclaren, 5 H. L. < '., at p. 459. But 
 service on a mere booking clerk of a Scotch railway company at a 
 station on an English railway over which they had running powers 
 was held insufficient in Mdckereth v. Glasgow and South Western 
 Railway Company, Law Rep., 8 Ex. 149. 
 
 By the Companies Act, 1862 (25 & 26 Vict., c. 89), s. 62, "Any 
 summons, notice, order, or other document required to be served 
 upon the company may be served by leaving the same, or sending it 
 through the post in a prepaid letter addressed to the company, at 
 their n gistered "ffice.'' 
 
 i 5
 
 17' v SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 der IX. Under somewhat similar words in 19 & 20 Vict. c. 47, s. 53, it 
 
 was held that they did not include a writ of summons in an action ; 
 ins Tovme v. London and Limerick Steamship Company, 5 C. B., N. S., 
 7:''". But it seems never to have been doubted that a Bill in 
 Chancery might be served under this section ; 1 Daniell's Chancery 
 Practice, p. 368, 5th edit. ; Morgan's Chancery Acts and Orders, 
 p. 418, n., 4th edit. ; and that will be sufficient to import the section 
 into the above rule. 
 
 Similar provisions are contained in the Companies' Clauses Act, 
 
 1845 (8 Vict., c. 16), s. 135; the Lands' Classes Act, 1845 (8 Vict., 
 
 - , s. 134, with respect to service upon promoters ; the Railways' 
 
 ( 'lauses Act, 1845 (18 Vict., c. 20), s. 138. as to railway companies, 
 
 except that in all these cases writs are specially mentioned. 
 
 By 7 Will IV. & 1 Vict. c. 73, s. 26, service upon a company 
 chartered under that Act, may be made upon the clerk of the 
 company, or by leaving the writ at the head office, or, if the clerk 
 .-hall not be known or found, on any agent or officer employed by the 
 company, or by leaving the writ at the usual place of abode of such 
 agent or officer. 
 
 4. In Particular Actions. 
 
 8. Service of a writ of summons in an action to 
 recover land may, in case of vacant possession, when it 
 cannot otherwise he effected, he made by posting a copy 
 of the writ upon the door of the dwelling-house or other 
 conspicuous part of the property. 
 
 This rule is taken from s. 170 of the C. L. P. Act, 1852. 
 
 9. In Admiralty actions in rem, the writ shall he served 
 by the Marshal or Ids substitutes, whether the property to 
 be arrested he situate within the Port of London or else- 
 where within the jurisdiction of the Court, and the 
 solicitor issuing the writ shall, within six days from the 
 service thereof, hie the same in the registry from which 
 the writ issued. 
 
 10. In Admiralty actions in rem, service of a writ of 
 summons against ship, freight, or cargo on hoard is to be 
 effected by the Marshal or his officer nading or affixing 
 the original writ for a short time on the main mast or on 
 the single mast of the vessel, and, on taking off the pro- 
 i ess, leaving a true copy of it nailed or fixed in its place. 
 
 11. If the cargo has been landed or transhipped, 
 
 service of the writ of summons to arrest the cargo and 
 freight shall he effected by placing the writ for a short 
 time on the cargo, and on taking off the process by leaving 
 a true copy upon it. 
 
 12. If the cargo be in the custody of a person who will 
 not permit access to it, service of tin: writ may lie made 
 upon the custodian.
 
 FIRST SCHEDULE. RULES OF COURT. I 79 
 
 Generally. Order x. 
 
 Substituted 
 
 13. The person serving a writ of summons shall, within * r "^' 
 three days at most after such service, indorse on the writ 
 the day of the month and week of the service thereof, 
 otherwis e the plaintiff shall not be at liberty, in cast- of 
 non-appearance, to proceed by default ; and every affidavit ' 
 of service of suoh writ shall mention the day on which 
 such indorsement was made. 
 
 This Rule is identical with s. 153 of the C. L. P. Act, 1852. 
 
 ORDER X. 
 
 Substituted Service. 
 
 Every application to the Court or a Judge, under Order 
 IX., Rule 2, for an order for substituted or othei service, 
 or for the substitution of notice for service, shall be sup- 
 ported by an affidavit setting forth the grounds upon which 
 the application is made. 
 
 As to when substituted service may be ordered, see Order IX., 
 Rule 2, ante, p. 175. 
 
 ORDER XI. 
 
 Service out of the Jurisdiction. /£*• A-2.J 
 
 1. Service out of the jurisdiction of a writ of summons or 
 notice of a writ of summons may be allowed by the Court 
 or a Judge whenever the whole or any part of the subject 
 matter of the action is land or stock, or other property 
 situate within the. jurisdiction, or any act, deed, will, or 2-C-£ ?. 2~*f- 
 thing affecting such land, stock, or property, and whenever 
 the contract which is sought to be enforced or rescinded, 
 dissolved, annulled, or otherwise affected in any such 
 action, or for the breach whereof damages or other relief 
 are or is demanded in such action, was made or entered 
 into within the jurisdiction, and whenever there lias been 
 a breach within the jurisdiction of any contract wherever 
 made, and whenever any act or thing sought to be re- 
 strained or removed, or for which damages are sought to 
 be recovered, was or is to be done or is situate within the 
 jurisdiction.
 
 SUPREME COUET OF JUDICATURE ACT, 1875. 
 
 Older XL Under Order X., Rule 7, of the Consolidated Orders, the Court of 
 
 ' 'hancery has had a discretionary power to order service on a 
 
 j 1S " defendant out of the jurisdiction in any suit whatever, without any 
 
 of the qualifications expressed in this rule ; Drummond v. Drum- 
 
 '. Law Rep. 2 Ch., 32 ; Morgan's Chancery Acts and Orders, 
 
 p. 423, 4th Edit. 
 
 In the Common Law Courts, the power of serving a defendant 
 out of the jurisdiction has been governed by ss. 18 & 19 of the 
 ( '. L. P. Act, 1852, the former of these sections relating to British 
 subjects resident abroad, the latter to foreigners. Those sections 
 were limited in their operation in two respects. First, they applied 
 only to the case of persons residing elsewhere than in Scotland or 
 Ireland : This restriction seems to be quite got rid of by the above 
 rule. Secondly, proceedings upon a writ served abroad could only 
 be continued if there was " a cause of action, which arose within 
 t jurisdiction, or in respect of the breach of a contract made 
 within the jurisdiction." The words, " cause of action which arose 
 within the jurisdiction" gave rise to a remarkable conflict of 
 i ■ ision between the several Courts, only recently set at rest. See 
 .. Borch, -1 H. l\; ( '. 954 : AUhusen v. Maljarejo, Law Rep. 3 
 Q. B. 34o : Jackson v. Spittall, Law Rep., 5 C. P. 542; Durham v. 
 Spence, Law Rep., 6 Ex. 46 ; Cherry v. Thompson, Law Rep., 7 ( t ' B. 
 573 ; Vaughan v. Weldon, Lav.- Rep., 10 C. P. 47. The words of 
 ti present rule seem sufficiently wide to cover all the cases as to 
 which doubt has arisen. 
 
 In the Probate Court, under Rule 19 of the Rules for Contentious 
 Business, 1862, the practice has been to allow service of citations 
 on persons abroad by advertisement, under the directions of the 
 judge or registrars, unless personal service were ordered. But if a 
 j : son abroad had an agent in this country, the agent was served. 
 
 As regards the practice in case of service abroad, in Chancery the 
 leave of the Court has hitherto been obtained, and a time for 
 appearance has been Iimitei 1 1 ly 1 rder : Consolidated Orders, Order X. 
 i 7. And in the Probate ' !ourt, service on a person abroad has 
 
 Leeii under the direction of the judge or registrars. 
 
 The Common Law practice has been entirely different. Under 
 • and 19 of the C. L. P. Act, 1S">2, above referred to, a writ 
 service abroad, commonly known as a foreign writ, has been 
 1, and it has been served or notice of it given, as of course, 
 ut any leave obtained, the plaintiff on his own responsibility 
 "ing a reasonable time for the defendant's appearance. The 
 defendant when .served might take 110 notice of the writ, or, without 
 .ring, might apply to have it set aside if improper!}' issued, or 
 r appear. If he appeared, the action proceeded in the ordinary 
 course. If he did not appear, and the writ had not been set aside, 
 th plaintiff applied for leave to proceed with the action, notwith- 
 standing the want of appearance, which leave might be given if 
 eveiything was in order. 
 
 Under the above rule leave must in every case be obtained before- 
 l, and the order giving such leave must limit the time for 
 nance. (Order II., Rules 4 and 5, ante, p. 160, and the above 
 i 
 
 Hitherto the practice in Chancery has been to serve a copy of the 
 
 bill upon the defendant abroad, without regard to his being or not 
 
 being a British subject. The Common Law practice lias been to 
 
 writ upon a Britis;i subject, but to give notice of it to a 
 
 ; _ner. The present rules .seem to contemplate the adoption of 
 
 aon Law practice in this respect.
 
 1UJLES. 
 
 se Rules may be cited as " The Rules of the 
 Court, .Time, 1876," orjeach separate one ofthese 
 y he cited as if it had been one of " The Rules 
 preme Court," and had been numbered by the 
 f the Order and Rule mentioned in the margin. 
 
 ER II. — Writ of Summons and Procedure.
 
 OEDER XI. — Service out of the Jurisdiction. 
 
 Order XI., 5. Whenever any action is brought in respect of any 
 Rule ia. contract which is sought to be enforced or rescinded, dis- 
 solved, annulled, or otherwise affected in any such action, 
 or for the breach whereof damages or other relief are or is 
 demanded in such action, when such contract was made 
 or entered into within the jurisdiction, or whenever there 
 has been a breach within the jurisdiction of any contract 
 wherever made, the Judge, in exercising his discretion as 
 to granting leave to serve such writ or notice on a de- 
 fendant out of the jurisdiction, shall have regard to the 
 amount or value of the property in dispute or sought to 
 be recovered, and to the existence in the place of resi- 
 dence of the defendant, if resident in Scotland or Ireland, 
 of a local Court of limited jurisdiction, having jurisdiction 
 in the matter in question, and to the comparative cost 
 and convenience of proceeding in England or in the place 
 of such defendant's residence, and in all the above-men- 
 tioned cases no such leave is to be granted without an 
 affidavit stating the particulars necessary for enabling the 
 Judge to exercise his discretion in manner aforesaid, 
 and all such other particulars (if any) as he may require 
 to be shown.
 
 FIRST SCHEDULE. RULES OF COURT. 181 
 
 Serious difficulties have arisen in the Common Law Courts with Order XII. 
 respect to proceeding against foreign corporations situated abroad. Appearance. 
 It was held that s. 19 of the C. L. P. Act, 1852, which provided for ~~ 
 
 service upon persons residing abroad, not being British subjects, did 
 not apply to corporations abroad; Ingate v. Austrian Lloyds, 4 C. B., 
 N. S., 704. See also Armstrong v. Die Elbinger Gesallschaft, 23 
 W. B. 94. But this decision turned entirely upon the construction 
 of the particular Act in question. And there seems nothing in the 
 words of the present rules to limit their operation to the case of 
 natural persons, unless the words " British subject " in Rule 3 create 
 a difficulty. 
 
 As to the mode of service upon foreign corporations having a place 
 of business in England, see note to Order IX., Rule 7, ante, p. 177. 
 
 2. In probate actions service of a writ of summons or 
 notice of a writ of summons may by leave of the Court or 
 Judge be allowed out of the jurisdiction. 
 
 3. Every application for an order for leave to serve such 
 writ or notice on a defendant out of the jurisdiction shall 
 be supported by evidence, by affidavit, or otherwise, 
 showing in what place or country such defendant is or 
 probably may be found, and whether such defendant is a 
 British subject or not, and the grounds upon which the 
 application is made. 
 
 4. Any order giving leave to effect such service or give 
 sucli notice shall limit a time after such service or notice 
 within which such defendant is to enter an appearance, 
 such time to depend on the place or country where or 
 within which the writ is to be served or the notice given. 
 
 5. Notice in lieu of service shall be given in the 
 manner in which writs of summons are served. 
 
 ORDER XII. 
 Appearance. 
 
 1. Except in the cases otherwise provided for by these 
 rules a defendant shall enter his appearance in London. 
 
 As to the general effect of the rules in this schedule upon the place 
 of proceeding in actions, see note to Order V., Kule 1, ante, p. 168. 
 
 2. If any defendant to a writ issued in a district 
 registry resides ot carries on business within the district, 
 he shall appear in the district registry.
 
 1S2 8UPREME COURT OP JUDICATURE ACT, 1875. 
 
 Order xi i. 3. If any defendant neither resides nor carries on busi 
 ness in the district, h 
 registry or in London 
 
 ppearance. ness ^ n ^ e district, he may appear either in the district 
 
 4. If a sole defendant appears, or all the defendants 
 appear in the district registry, or if all the defendants 
 who appear, appear in the district registry and the others 
 make default in appearance, then, subject to the power of 
 removal hereinafter provided, the action shall proceed in 
 the district registry. 
 
 As to the power of removal, see note to Order V., Rule 1, ante, 
 p. 168 ; s. 65 of the Judicature Act, 1873, ante, p. 90; and Order 
 XXXV., Rules 11 to 14, post, p. 246. 
 
 5. If the defendant appears, or any of the defendants 
 appear, in London, the action shall proceed in London ; 
 provided that if the Court or a Judge shall be satisfied 
 that the defendant appearing in London is a merely 
 formal defendant, or has no substantial cause to interfere 
 in the conduct of the action, such Court or Judge may 
 order that the action may proceed in the district registry, 
 notwithstanding such appearance in London. 
 
 G. A defendant shall enter his appearance to a writ of 
 summons by delivering to the proper officer a memorandum 
 in writing, dated on the day of the delivering the same, 
 and containing the name of the defendant's solicitor, or 
 stating that the defendant defends in person. A defen- 
 dant who appears elsewhere than where the writ is issu< d 
 shall on the same day give notice to the plaintiff of his 
 appearance, either by notice in Avriting served in the 
 ordinary way, or by prepaid letter posted on that day in 
 due course of post. 
 
 The necessity for the latter clause of this rule arises in this way : 
 — The defendant being, under Rule 3, entitled, if the writ is issued 
 in a District Registry, and he neither resides nor carries on business 
 in the district, to appear either in the District Registry or in 
 London, the plaintiff, but for the above provision, could not enter 
 judgment by default without searching for appearance both in London 
 and in the District Registry. Under the above rule he need only 
 search in the District Registry, for if the appearance be in London 
 he is entitled to notice. 
 
 7. The solicitor of a defendant appearing by a solicitor 
 shall state in such memorandum his place of business, 
 and, if the appearance is entered in the London office, a 
 place, to be called his address for service, which shall not 
 be more than three miles from Temple Bar, and if the
 
 2 and 3 in Part 1 of Appendix A to "The Order n., 
 ■ Supreme Court" shall He read as if the words Rule 3< a )- 
 
 f the Court or a Judge" were not therein. 
 
 >EE V. — Issue of Whits of Summons. 
 
 dlowing words are/ieieby added to the end Order v, 
 '., Pule 8, of "The Kules of the Supreme Rule 8 '
 
 ORDER XII. -Appearance. 
 Order xii., 6. "Where any person carrying on business in the name 
 of a firm apparently consisting of more than one person 
 shall be sued in the name of the firm, he shall appear 
 in his own name ; but all subsequent proceedings shall, 
 nevertheless, continue in the name of the firm.
 
 FIRST SCHEDULE. — RULES OF COURT. 183 
 
 appearance is entered in a district registry, a place, to be2 rderXI1- 
 called his address for service, which shall he within the — 
 district. 
 
 As to the district of a District Registry, see s. 60 of the principal 
 Act, ante, p. 88 ; and Order in Council issued under that section. 
 post, p. 418. 
 
 8. A defendant appearing in person shall state in such 
 memorandum his address, and, if the appearance is entered 
 in the London office, a place, to he called his address for 
 service, which shall not be more than three miles from 
 Temple Bar, and if the appearance is entered in a district 
 registry, a place, to he called his address for service, which 
 shall he within the district. 
 
 9. If the memorandum does not contain such address it 
 shall not he received ; and if any such address shall he 
 illusory or fictitious, the appearance may he set aside by 
 the Court or a Judge on the application of the plaintiff. 
 
 10. The memorandum of appearance shall be in the 
 Form No. 6, Appendix (A), Part I., with such variations 
 as the circumstances of the case may require. 
 
 11. Upon receipt of a memorandum of appearance, 
 tlic officer shall forthwith enter the appearance in the 
 cause book. 
 
 12. When- partners are sued in the name of their firm, 
 they shall appear individually in their own names. But 
 all .subsequent proceedings shall, nevertheless, continue in 
 the name of the firm. 
 
 As to the general effect of the rules in the schedule upon actions 
 by and against partners, see note to Order IX., Rule 6, ante, p. 176. 
 
 1 3. If two or more defendants in the same action shall 
 appear by the same solicitor and at the same time, the 
 names of all the defendants so appearing shall be inserted 
 in one memorandum. 
 
 This is identical with Rule 2, of R. G., H. T., 1853. 
 
 14. A solicitor not entering an appearance in pursuance 
 of his written undertaking so to do on behalf of any defen- 
 dant shall be liable to an attachment. 
 
 This is identical with Rule 3 of R. G., H.T., 1853. SceOrderlX., 
 Rule 1, ante, p. 175.
 
 184 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xii. 15. A defendant may appear at anytime before judg- 
 Appearance. men ^_ jf h e a pp e ar at any time after the time limited for 
 appearance he shall, on the same day, give notice thereof 
 to the plaintiff's solicitor, or to the plaintiff himself if he 
 sues in person, and he shall not, unless the Court or a 
 Judge otherwise orders, he entitled to any further time for 
 delivering his defence, or for any other purpose, than if he 
 had appeared according to the writ. 
 
 This Rule is in substance the same as s. 29 of the C. L. P. Act, 
 1852. 
 
 1G. In probate actions any person not named in the 
 writ may intervene and appear in the action as heretofore, 
 on filing an affidavit showing how he is interested in the 
 estate of the deceased. 
 
 17. In an Admiralty action in rem any person not 
 named in the writ may intervene and appear as hereto- 
 f< ne, on filing an affidavit showing that he is interested in 
 the res under arrest, or in the fund in the registry. 
 
 18. Any person not named as a defendant in a writ of 
 summons for the recovery of land may by leave of the 
 Court or Judge appear and defend, on nling an affidavit 
 showing that he is in possession of the land either by him- 
 self or his tenant. 
 
 This and the three following rules are substantially the same as 
 ss. 172, 173 and 174 of the C. L. P. Act, 1852, and Rule 113 of R. G., 
 H. T, 1853. 
 
 19. Any person appearing to defend an action for the 
 recovery of land as landlord in respect of property where- 
 of he is in possession only by his tenant, shall state in his 
 appearance that he appears as landlord. 
 
 20. Where a person not named as defendant in any 
 writ of summons for the recovery of land has obtained 
 leave of the Court or Judge to appear and defend, he shall 
 enter an appearance according to the foregoing rules, 
 intituled in the action against the party or parties named 
 in the writ as defendant or defendants, and shall forthwith 
 give notice of such appearance to the plaintiff's solicitor, 
 or to the plaintiff if he sues in person, and shall in all 
 subsequent proceedings be named as a party defendant to 
 the action. 
 
 21. Any person appearing to a writ of summons for
 
 FIRST SCHEDULE. RULES OF COURT. 185 
 
 Default of 
 earance. 
 
 the recovery of land shall be at liberty to limit his defence Order xm 
 to a part only of the property mentioned in the writ, A p p a e " 
 describing that part with reasonable certainty in his 
 memorandum of appearance or in a notice intituled in the 
 cause, and signed by him or his solicitor ; such notice to 
 be served within four days after appearance ; and an 
 appearance where the defence is not so limited shall be 
 deemed an appearance to defend for the whole. 
 
 22. The notice mentioned in the last preceding Rule 
 may be in the form No. 7 in Part I. of Appendix (A) 
 hereto, with such variations as circumstances may require. 
 
 ORDER XIII. 
 
 Default of Appearance. 
 
 1. "Where no appearance has been entered to a writ of 
 summons for a defendant who is an infant or a person of 
 unsound mind not so found by inquisition, the plaintiff 
 may apply to the Court or a Judge for an order that some 
 proper person be assigned guardian of such defendant, by 
 whom he may appear and defend the action. But no such 
 order shall be made unless it appears on the hearing of 
 such application that the writ of summons was duly served, 
 and that notice of such application was after the expir- 
 ation of the time allowed for appearance, and at least six 
 clear days before the day in such notice named for hearing 
 the application, served upon or left at the dwellingdiouse 
 of the person with whom or under whose care such defen- 
 dant was at the time of serving such writ of summons, and 
 also (in the case of such defendant being an infant not 
 residing with or under the care of his father or guardian) 
 served upon or left at the dwelling-house of the father or 
 guardian, if any, of such infant, unless the Court or Judge 
 at the time of hearing such application shall dispense with 
 such last-mentioned service. 
 
 As to service on infants and persons of unsound mind, see Order 
 IX., Rules 4 and 5, aide, p 176. 
 
 2. Where any defendant fails to appear to a writ of 
 summons, and the plaintiff is desirous of proceeding upon 
 default of appearance under any of the following rules of 
 this order, or under Order XV., Rule 1, lie shall, before 
 taking such proceeding upon default, file an affidavit of 
 service, or of notice in lieu of service, as the case may be.
 
 186 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xin. 3, l n case f non-appearance by the defendant where 
 Appearance, the writ of summons is specially indorsed, under Order 
 III., Ride 6, the plaintiff may sign final judgment for any 
 sum not exceeding the sum indorsed on the writ, together 
 with interest at the rate specified, if any, to the date of 
 the judgment, and a sum for costs, but it shall be lawful 
 for the Court or a Judge to set aside or vary such judg- 
 ment upon such terms as may seem just. 
 
 The indorsement referred to is an indorsement of the claim 
 where the claim is merely for a debt or liquidated demand. 
 
 This rule corresponds to s. 27 of the C. L. P. Act, 1852. Under 
 that section, however, execution could not issue on the judgment 
 entered till the expiration of eight days from the last day for 
 appearance. There is no such restriction in this rule. And the 
 general rule now is that execution may issue immediately upon any 
 judgment for the recovery of money ; Order XLIL, Rule 15, pout, 
 p. 276. 
 
 Under that section, too, it was expressly provided that an applica- 
 tion to set aside a judgment must be based upon affidavits " account- 
 ing for the non-appearance and disclosing a defence upon the 
 merits." By the present rule, the matter is left at large to the dis- 
 cretion of the Court or judge, but it can hardly be supposed that a 
 judge will set aside a judgment without having the non-appearance 
 explained and a defence shown. The terms commonly imposed have 
 been the payment by the defendant of the costs of the application, 
 pleading without delay, and sometimes bringing money into court. 
 
 4. Where there are several defendants to a writ specially 
 indorsed for a debt or liquidated demand in money, under 
 Order III., Rule 6, and one or more of them appear to 
 the writ, and another or others of them do not appear, the 
 plaintiff may enter final judgment against such as have 
 not appeared, and may issue execution upon such judg- 
 ment without prejudice to his right to proceed with his 
 action against such as have appeared. 
 
 The provisions of this rule are new. Hitherto in such a case, the 
 plaintiff might sign judgment against the defendants who did not 
 appear, and might issue execution against them ; but. if he did so, 
 he abandoned his right to proceed against the other defendants. Or 
 he might, before levying execution against the defaulters, declare and 
 proceed with the action against the other defendants. But in this 
 case the judgment already signed became a mere interlocutory one ; 
 and the plaintiff could never put it in force unless and until he suc- 
 ceeded in obtaining judgment in the action against the other defend- 
 ants. See s. 33 of the C. L. P. Act, 1852 ; notes to that section in 
 Dav's Common Law Procedure Acts p. 67, 4th edit. ; 2 Chitty's 
 Archbold, p. 972, 11th edit. 
 
 5. Where the defendant fails to appear to the writ of 
 summons and the writ is not specially indorsed, but the 
 plaintiff's claim is for a debt or liquidated demand only, 
 no statement of claim need be delivered, but the plaintiff 
 may file an affidavit of service or notice in lieu of service,
 
 FIRST SCHEDULE. RULES OF COURT. 187 
 
 as the case may be, and a statement of the particulars of Order xm. 
 his claim in respect of the causes of action stated in the Appearance 
 indorsement upon the writ, and may, after the expiration 
 of eight days, enter final judgment for the amount shown 
 thereby and costs to be taxed, provided that the amount 
 shall not be more than the sum indorsed upon the writ 
 hi -sides costs. 
 
 Under s. 28 of the C. L. P. Act, 1852, the plaintiff filed a declara- 
 tion, and if no plea were pleaded he could then, if the amount 
 claimed were indorsed on the writ, sign final judgement for default 
 of a plea for the amount so shown and costs. 
 
 6. "Where the defendant fails to appear to the writ of 
 summons and the plaintiff's claim is not for a debt or 
 liquidated demand only, but for detention of goods and 
 pecuniary damages, or either of them, no statement of 
 claim need be delivered, but interlocutory judgment may 
 be entered and a writ of inquiry shall issue to assess the 
 value of the goods and the damages, or the damages only, 
 as the case may be, in respect of the causes of action 
 disclosed by the indorsement on the writ of summons. 
 But the Court or a Judge may order that, instead of a 
 writ of inquiry, the value anil amount of damages, or 
 either of them, shall be ascertained in any way in which 
 any question arising in an action may be tried. 
 
 The practice hitherto has been, under s. 28 of the C. L. P. 
 Act, 1852, that the plaintiff, in the case provided for by this rule, 
 filed a declaration, and then, if no plea were pleaded, signed interlo- 
 cutory judgment for want of a plea. Then a writ of inquiry issued 
 to assess the damages ; or if the amount of damages was substantially 
 a matter of mere calculation, it might be referred to a master, under 
 s. 94 of the C. L. P. Act, 1852. Under the present rule, it will be 
 observed, interlocutory judgment may be entered immediately upon 
 default of appearance ; and the indorsement on the writ will be 
 sufficient to govern the inquiry as to damages without any pleadings. 
 
 A far more important change is made by the last sentence of 
 this rule. The assessment of damages often involves questions 
 both of law and of fact as difficult as any that can possibly arise. 
 It may be found of great advantage that, for the future, questions 
 of damages may be ordered to be tried by a judge or a judge and jury, 
 or a judge with assessors, or a referee, official or special. See Order 
 XXXVL, post, p. 248. 
 
 7. In case no appearance shall be entered in an action 
 for the recovery of land, within the time limited for 
 appearance, or if an appearance be entered but the defence 
 be limited to part only, the plaintiff shall be at liberty 
 to enter a judgment that the person whose title is 
 asserted in the writ shall recover possession of the land, 
 or of the part thereof to which the defence does not apply. 
 
 This is in substance the same as a. 177 of the C. L. P. Act, 1852
 
 188 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xiil. 8. Where the plaintiff has indorsed a claim for mesne 
 Appearance, profits, arrears of rent, or damages for breach of contract, 
 upon a writ for the recovery of land, he may enter judg- 
 ment as in the last preceding Ride mentioned for the land ; 
 and may proceed as in the other preceding Eules of this 
 order as to such other claim so indorsed. 
 
 No claim other than those mentioned in this rule can be joined 
 with a claim for the recovery of land, without leave ; Order XVII., 
 Eule 2, post, p. 201. 
 
 9. In actions assigned by the 34th section of the Act 
 to the Chancery Division, and in Probate actions, and in 
 all other actions not by the Eules in this order otherwise 
 specially provided for, in case the party served with the 
 writ does not appear within the time limited for appear- 
 ance, upon the hling by the plaintiff of a proper affidavit 
 of service the action may proceed as if such party had 
 appeared. /^H-9? &A , 6 ' 
 
 The effect of this rule is to get rid entirely of the practice 
 hitherto in use in Chancery of entering an appearance for any party 
 in default. For the future, instead of such appearances being 
 entered and so all parties being formally before the Court, the 
 action will, upon an affidavit of service (Rule 2, supra), proceed 
 as if all parties had appeared. 
 
 10. In an Admiralty action in rem, in which an appear- 
 and' has not been entered, the plaintiff may proceed as 
 follows : — 
 
 ('/.) He may, after the expiration of twelve days from 
 the hling of the writ of summons, take out a notice of 
 sale, tn be advertised by him in two or more public 
 journals to be from time to time appointed by the judge. 
 
 (b.) After the expiration of six days from the advertise- 
 ment of the notice of sale in the said journals, if an 
 appearance has not been entered, the plaintiff shall hie in 
 the registry an affidavit to the effect that the said notices 
 have been didy advertised, with copies of the journals 
 annexed, as also such proofs as may be necessary to 
 establish the claim, and a notice of motion to have the 
 property sold. 
 
 (c.) If, when the motion comes before the Judge, he is 
 satisfied that the claim is well founded he may order the 
 property to be appraised and sold, and the proceeds to be 
 paid into the registry. 
 
 (d.) If there be two or more actions by default pending 
 against the same property, it shall not be necessary to take 
 out a notice of sale in more than one of the actions] but
 
 FIRST SCHEDULE. RULES OF COURT. 189 
 
 if the plaintiff in the first action does not, within eighteen Order xiv. 
 days from the filing of the writ in that action, take out Defend, 
 and advertise the notice of sale, the plaintiff in the second ~ 
 or any subsequent action may take out and advertise the 
 notice of sale, if he shall have filed in the registry a writ 
 of summons in rem in such second or subsequent action. 
 
 (e.) Within six days from the time when the proceeds 
 have been paid into the registry, the plaintiff in each 
 action shall, if he has not previously done so, file his 
 proofs in the registry and have the action placed on the 
 list for hearing. 
 
 (/.) In an action of possession, after the expiration of 
 six days from the filing of the writ, if an appearance has 
 not been entered, the plaintiff may, on filing in the registry 
 a memorandum, take out a notice of proceeding in the 
 action, to be advertised by him in two or more public 
 journals to be from time to time appointed by the Judge. 
 
 (g.) After the expiration of six days from the advertise- 
 ment of the notice of proceeding in the said journals, if 
 an appearance has not been entered, the plaintiff shall file 
 in the registry an affidavit to the effect that the notice has 
 been dvdy advertised with copies of the journals annexed, 
 as also such proofs as may be necessary to establish the 
 action, and shall have the action placed on the list for 
 hearing. 
 
 (h.) If when the action comes before the Judge he is 
 satisfied that the claim is well founded, he may pronounce 
 for the same, and decree possession of the vessel accord- 
 ingly. 
 
 ORDER XIY. 
 
 Leave to Defend where Writ specially Indorsed. 
 
 1. Where the defendant appears on a writ of summons /d/6./*^ 
 specially indorsed, under Order III., Rule 6, the plaintiff 
 may, on affidavit verifying the cause of action, and swear- 
 ing that in Ins belief there is no defence to the action, call 
 on the defendant to show cause before the Court or a 
 Judge why the plaintiff should not be at liberty to sign 
 final judgment for the amount so indorsed, together with 
 interest, if any, and costs ; and the Court or Judge may, 
 unless the defendant, by affidavit or otherwise, satisfy the 
 Court or Judge that he has a good defence to the action
 
 190 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xiv. on the merits, or disclose such facts as the Court or Judge 
 Defend. ma y think sufficient to entitle him to be permitted to 
 — defend the action, make an order empowering the plaintiff 
 to sign judgment accordingly. 
 
 The indorsement referred to is an indorsement of particulars of 
 the claim where the claim is merely for a deht or liquidated demand. 
 
 The procedure introduced by this order is an extension of the 
 principle embodied in the Bills of Exchange Act, 1855, though the 
 method of working it out is different. Under the Bills of Exchange 
 Act [ante, p. 160] a defendant, whose case falls within the Act and who 
 is served with a writ in the proper form, must obtain the leave of a 
 judge before he can be allowed to appear and defend. The present 
 order is of much wider application than the Bills of Exchange Act, 
 for it applies in all cases where the plaintiff's claim is merely for a 
 debt or liquidated demand, and the writ has been specially indorsed 
 [Order III., Rule 6, ante, p. 166]. Under this order the defendant 
 appears as of right without any previous leave. And it lies upon the 
 plaintiff to apply for an order for judgment notwithstanding ap- 
 pearance. As to the time for delivering a defence in such cases, 
 see Order XXII., Rule 3, post, p. 218. 
 
 There is no express provision in the rules as to whether a plaintiff 
 can proceed under this rule after the defendant has obtained leave 
 to defend under the Bills of Exchange Act. But it can hardly be 
 supposed that an order would be made under this rule in such a 
 case. 
 
 2. The application by the plaintiff for leave to enter 
 final judgment under the last preceding Rule shall be 
 made by summons returnable not less than two clear days 
 after service. 
 
 No time is limited by rule within which the plaintiff must make 
 the application. It may be presumed, however, that such applica- 
 tion will not be entertained unless made at an early opportunity. 
 
 3. The defendant may show cause against such applica- 
 tion by offering to bring into Court the sum indorsed on 
 the writ, or by affidavit. In such affidavit he shall state 
 whether the defence he alleges goes to the whole or to part 
 only, and if so, to what part, of the plaintiff's claim. And 
 the Judge may, if he think fit, order the defendant to attend 
 and be examined upon oath ; or to produce any books or 
 documents or copies of or extracts therefrom. 
 
 The grounds given in this rule and in Rule 1 for allow ing the 
 defendant to defend are : — an offer to bring the amount into Court ; 
 satisfying the judge that he has a good defence on the merits ; dis- 
 closing such facts as the judge thinks sufficient to entitle him to 
 defend. 
 
 The facts are to be shown by affidavit subject to the power of 
 directing an oral examination or the production of books or documents. 
 
 As to the grounds on which a defence is allowed in the analogous 
 case, under the Bills of Exchange Act, see ante, p. 164.
 
 FIRST SCHEDULE. RULES OF COURT. 191 
 
 4. If it appear that the defence set up hy the defendant Order xv. 
 applies only to a part of the plaintiff's claim ; or that any ^Account. 
 part of his claim is admitted to he due; the plaintiff 
 
 shall have judgment forthwith for such part of his 
 claim as the defence does not apply to or as is admitted 
 to he due, subject to such terms, if any, as to 
 suspending execution, or the payment of the amount levied 
 or any part thereof into Court by the sheriff, the taxation 
 of costs, or otherwise, as the Judge may think fit. And 
 the defendant may be allowed to defend as to the residue 
 of the plaintiff's claim. 
 
 5. If it appears to the Judge that any defendant has a 
 good defence to or ought to be permitted to defend the 
 action, and that any other defendant has not such defence 
 and ought not to be permitted to defend, the former 
 may be permitted to defend, and the plaintiff shall 
 be entitled to enter final judgment against the latter 
 and may issue execution upon such judgment without 
 prejudice to his right to proceed with his action against the 
 former. 
 
 See Order XIII., Rule 4, ante, p. 186. 
 
 6. Leave to defend may be given unconditionally or 
 subject to such terms as to giving security, or otherwise, as 
 the Court or a Judge may think fit. 
 
 ORDER XV. 
 
 Application for Account wiikre Writ indorsed under 
 Order III., Rule 8. 
 
 1. In default of appearance to a summons indorsed 
 under < >rder III., Rule <S, and after appearance unless the 
 defendant, by affidavit or otherwise, satisfy the Court or a 
 Judge that there is some preliminary question to be tried, 
 an order tor the account claimed, with aU directions now 
 usual in the Court of Chancery in similar cases, shall be 
 forthwith made 
 
 'I'll'- indorsement referred to is an indorsement of a claim for an 
 ordinary account, such as a partnership, or executorship, or ordinary 
 trust account. 
 
 There have been a large number of cases hitherto in the Court of 
 Chancery, in which an account is asked for, and in which, in the 
 absence of some exceptional circumstances, the plaintiff is entitled to
 
 192 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order XVI. and obtains an order for an account as a matter of course. But 
 Parties. hitherto there has been no summary process by which such an order 
 
 could be quickly and cheaply obtained. This rule provides for two 
 cases : first, default of apjiearance, in which case the order will be 
 made as of right ; secondly, appearance, in which case it is to be made 
 unless the defendant shows that there is some question which ought 
 to be tried first. 
 
 2. An application for such order as mentioned in the 
 last preceding Bide shall be made by summons, and be 
 supported by an affidavit filed on behalf the plaintiff, 
 stating concisely the grounds of his claim to an account 
 The application may be made at any time after the time 
 for entering an appearance has expired. 
 
 An affidavit of service must be filed before the application can be 
 made on the ground of default of appearance ; Order XIII., Rule 2, 
 ante, p. 185. 
 
 ORDEE XVI. 
 Parties. 
 
 1. All persons may be joined as plaintiffs in whom the 
 right to any relief claimed is alleged to exist, whether 
 jointly, severally, or in the alternative. And judgment 
 may be given for such one or more of the plaintiffs as may 
 be found to be entitled to relief, for such relief as he or 
 they may be entitled to, without any amendment. But 
 the defendant, though tmsuccessful, shall be entitled to his 
 costs occasioned by so joining any person or persons who 
 shall not be found entitled to relief, unless the Court in 
 disposing of the costs of the action shall otherwise direct. 
 
 The changes introduced by this and the following rules of this 
 Order are very material changes. In nothing has there been a 
 stronger contrast between Common Law and Chancery procedure 
 than in their doctrines with respect to the parties who ought to be 
 brought before the Court. 
 
 Subject to a few exceptions, the Common Law Courts have 
 been rigidly tied down to disposing of claims arising between 
 exactly the same parties upon each side, and in the same rights. 
 They could give a judgment for A. against C, or against C, 
 D. and E., but they could not give relief of one sort against C. 
 and of another sort against D. and E. ; nor could they give relief 
 of one kind to ^4. and of another kind to B., or of one kind to A. and 
 B. jointly, and another to A. separately. All the plaintiffs, if more 
 than one, had to be jointly entitled, and all the defendants jointly 
 liable with respect to every single matter upon which the Court was 
 asked to adjudicate. 
 
 In Chancery, on the other hand, the course has been to deal with 
 the controversy or transaction forming the subject matter of the
 
 FIRST SCHEDULE. RULES OF COURT. 193 
 
 action as a whole, and endeavour to do complete justice with respect Order XVI. 
 to it ; and for that object the Court has insisted on bringing before Parties, 
 it all the parties interested in the subject matter. The extreme 
 strictness of this rule has been usefully relaxed from time to time 
 in ways which, at this point, it is not necessary to specify ; but in 
 the main it has not been departed from. 
 
 The result has been that a Court of Law could not handle the 
 matter, as a whole, however desirable it might be to do so ; 
 but was obliged to confine itself to the specific claim of one person 
 against another. A Court of Equity could only deal with the 
 matter as a whole, whether that were really necessary or not, and 
 could not dispose of the mutual rights of particular persons singly, 
 however convenient it might be to do so. 
 
 The Judicature Act, 1873, and the rules of. this schedule give a 
 very wide latitude as to the matters which may be disposed of in 
 an action, the mode in which a cause may be dealt with, and the 
 persons who may be made parties to it. 
 
 By s. 24 of the Judicature Act, 1873, ante, p. 57, the plaintiff 
 may seek in any action to enforce any claim he could hitherto 
 have enforced in any Court whether of law or equity. The 
 defendant may raise any defence which would hitherto have been 
 good either at law or in equity . He may also raise by way <: f 
 counter claim, not merely a pecuniary set off, but anything that he 
 could have made the subject of a cross action or suit. And he may 
 make such counter claim not only against the plaintiff, but against 
 any third person, if only it be connected with the subject of the 
 action. 
 
 The Court in its turn is bound to " grant, either absolutely or on 
 such reasonable terms and conditions as to them shall seem just, all 
 such remedies whatsoever as any of the parties thereto may appear 
 to be entitled to in respect of any and every legal or equitable claim 
 properly brought forward by them respectively in such cause or 
 matter ; so that, as far as possible, all matters so in controversy 
 between the said parties respectively may be completely and finally 
 determined, and all multiplicity of legal proceedings concerning any 
 of such matters avoided." 
 
 On the other hand, the first clause of Rule 13, ^os£, p. 197, is 
 equally specific, that " no action shall be defeated by reason of the 
 misjoinder of parties, and the Court may in every action deal with 
 the matters in controversy so far as regards the rights and interests 
 of the parties actually before it." 
 
 The provi>ions directly relating to the selection of parties and the 
 joinder of various claims in the same action and in the same plead- 
 ings are framed so as to give effect to the provisions just referred to. 
 
 All persons claiming any relief, jointly, severally, or in the alterna- 
 tive, may be made plaintiffs ; Rule 1, supra, and Order XVII., Rule 
 6, 'post, p. 202. 
 
 All persons against whom any relief is claimed, jointly, severally, 
 or in th< niii motive, may be made defendants ; Rule 3, post, p. 194. 
 And the defendants need not all be interested in all the relief 
 claimed or all the causes of action; Rule 4. See also Rules 5 and 
 6, post, p. 194. 
 
 It is not necessary that either plaintiffs or defendants should be 
 concerned in all the matters in question in the same capacity. 
 Sul>j>:ct to a few qualifications, they maybe concerned partly in a 
 representative capacity, partly personally ; Order XVII., Rules 
 3, 4, 5, 6, post, p. 201. 
 
 The defendant also may, for the purpose of his counter-claim, bring
 
 194 
 
 SUPREME COURT OF JUDICATURE ACT. 1875. 
 
 
 Order XVI. before the Court any persons not already parties against whom he 
 Parties. seeks any relief relating to or connected with the subject matter of 
 
 the suit ; s. 24, sub-s. 3 of the Judicature Act, 1873. See 
 Order XIX., Rule 3, post, p. 205, and note thereto. 
 
 All parties may be added necessary to enable the Court effectually 
 and completely to adjudicate upon and settle all the questions in- 
 volved in the action ; Rule 13, post, p. 197. 
 
 2. Where an action has been commenced in the name 
 of the wrong person as plaintiff, or where it is doubtful 
 whether it has been commenced in the name of the right 
 plaintiff or plaintiffs, the Court or a Judge may, if satisfied 
 that it has been so commenced through a bona fide mistak e, 
 and that it is necessary for the determination of the real 
 matter in dispute so to do, order any other person or per- 
 sons to be substituted or added as plaintiff or plaintiffs 
 upon such terms as may seem just. 
 
 It has often happened that actions have been inadvertently brought 
 by the wrong person, as by cestui que trust instead of trustee, by 
 mortgagor instead of mortgagee. Often the same mistake has been 
 made, where it was matter of real difficulty to say which of two 
 persons ought to sue ; as in the case of contracts made by agents, 
 as to which it is often a question of much nicety to determine who 
 ought to sue. Though the Common Law Courts have had the 
 largest powers of adding parties, or amending misdescriptions of 
 parties, they have had no power to substitute one plaintiff for 
 another, such as this rule confers : see De Gendre v. Bogardus, Law 
 Rep., 7 C. P. 409. 
 
 3. All persons may be joined as defendants against 
 whom the right to any relief is alleged to exist, whether 
 
 \ A_32^ jointly, severally, or in the alternativ e. And judgment 
 T>j£><jS* may be given against such one or more of the defendants 
 
 as may be found to be liable, according to their respective 
 
 liabilities, without any amendment. 
 See note to Rule 1, ante, p. 192. 
 
 \c>< 
 
 3 <-v 4. It shall not be necessary that every defendant to any 
 
 <<J. 3j~<j action shall be interested as to all the relief thereby prayed 
 for, or as to every cause of action included therein ; but 
 the Court or a Judge may make such order as may appear 
 just to prevent any defendant from being embarrassed or 
 put to expense by being required to attend any proceedings 
 in such action in which he may have no interest. 
 See note to Rule Lwife, p. 192. 
 
 5. The plaintiff may, at his option, join as parlies to the 
 e action all or any of the persons severally, or jointly 
 and severally, liable on any one contract, including parties 
 to bills of exchange and promissory notes. 
 
 See note to Rule 1, ante, p. 192.
 
 ORDER XVI.— Parties. JZ>^- , 
 [rder XVI., 7. In any case in which the right of an heir-at-law or 
 the next of kin or a class shall depend upon the con- 
 struction which the Court may put upon an instrument, 
 and it shall not be known or he difficult to ascertain who 
 is or are such heir-at-law or next of kin or class, and the 
 Court shall consider that in order to save expense or for 
 some other reason it will he convenient to have the ques- 
 tion or cpiestions of construction determined before such 
 heir-at-law, next of kin, or class shall have been ascer- 
 tained by means of inquiry or otherwise, the Court may 
 appoint some one or more person or persons to represent 
 such heir-at-law, next of kin, or class, and the judgment of 
 
 the Court in the presence of such person or persons shall 
 be binding upon the party or parties or class so repre- 
 sented.
 
 "And when such action shall be commenced in a dis- 
 trict registry, it shall be further distinguished by the name 
 of such registry." 
 
 ORDER IX. — Service of WrVt of Summons. 
 4. Where one person carrying on business in the name 
 of a. firm apparently consisting of Aore than one person 
 shall be sued in the firm name, the writ may be served at 
 the principal place within the jurisdiction of the business 
 so carried on upon any person having at the time of ser- 
 vice the control or management of the business there ; ami. 
 subject to any of the Rules of the Supreme Court, such 
 service shall be deemed good service on the person so 
 sued. 
 
 final judgment shall be entered in the District Resist] 
 unless the Court or Judge shall otherwise order. 
 Where an action proceeds in the District Ri
 
 FIRST SCHEDULE. — RULES OF COURT. 195 
 
 6. "Wherein any action, whether founded upon contract Order xiv/~ 
 or otherwise, the plaintiff is in doubt as to the person from artl !l' 
 
 whom he is entitled to redress, he may, in such manner as /fC£*2). Zf 3 ' 2 - 
 hereinafter mentioned, or as may be prescribed by any Z£*.*2). 30/ JT*. 
 special order, join two or more defendants, to the intent *^- £?S~~~ 
 that in such action the question as to which, if any, of the 
 defendants is liable, and to what extent, maybe determined 
 as between all parties to the action. 
 See note to Eule 1, ante, p. 192. 
 
 7. Trustees, executors, and administrators may sue and 
 be sued on behalf of, or as representing the property or 
 estate of which they are trustees or representatives, with- 
 out joining any of the parties beneficially interested in the 
 trust or estate, and shall be considered as representing such 
 1 1; irlies in the action ; but the Court or a Judge may, at 
 any stage of the proceedings, order any of such parties to 
 lie made parties to the action, either in addition to, or in 
 lieu of, the previously existing parties thereto. 
 
 This Rule appears to be substantially the same as Rule 9 of 15 & 
 16 Viet. c. 86, s. 42, embodied in Rule 11 of this Order, post, p. 216. 
 
 8. Married women and infants may respectively sue as 
 plaintiffs by their next friends, in the manner practised in 
 I lie Court of Chancery before the passing of this Act; 
 and infants may, in like manner, defend any action by 
 their guardians appointed for that purpose. Married 
 women may also, by the leave of the Court or a Judge, sue 
 or defend without their husbands and without a next 
 friend, on giving such security (if any) for costs as the 
 Court or a Judge may require. 
 
 . 9. "Where there are numerous parties having the same 
 interest in one action, one or more of such parties may sue /&./l^&'.3'i 
 or be sued, 01 njn^^Ji e authorised by the Court to defend // ^^ > -6q 1:3. tfc /»t 
 in such action, on behalf or for the benefit of all parties so 
 interested. 
 
 This has long been the practice of the Court of Chancery. 
 
 10. Any two or more persons claiming, or being liable 
 as co-partners, may sue or be sued in the name of their 
 respective firms, if any ; and any party to an action may 
 in such ease apply by summons to a Judge for a statement 
 of the names of the persons who are co-partners in any 
 such linn, to be furnished in such manner, and verified on 
 oath or otherwise, as the Judge may direct. 
 
 As to proceedings in actions by and against partners in the name 
 of the firm, see Order VII., Rule 2, ante, p. 173 ; Order IX., Rule 6, 
 ante, p. 176, and note thereto ; Order XII., Rule 12, ante, p. 183 ; 
 Order XLII., Rule 8, post, p. 274. 
 
 K2
 
 196 SUPREME COURT OF JUDICATURE ACT, 1875. ^ VI 
 
 ij.i. 
 
 Parties. 
 
 Order xvi. 11. Subject to the provisions of the Act, and these Rules, 
 the provisions as to parties, contained in s. 42 of 15 & 16 
 Vict. c. 86, shall he in force as to actions in the High 
 Court of Justice. 
 
 By 15 & 16 Vict. c. 86, s. 42, it is enacted that : "It shall not he 
 competent to any defendant in any suit in the said Court [that is, 
 the Court of Chancery] to take any objection for want of parties to 
 such suit, in any case to which the rules next hereinafter set forth 
 extend ; and such rules shall be deemed and taken part of the law 
 and practice of the said Court, and any law or practice of the 
 said Court inconsistent therewith shall be and is hereby abrogated 
 and annulled. 
 
 Role 1. — Any residuary legatee or next of kin may, without 
 serving the remaining residuary legatee or next of kin, have a 
 decree for the administration of the personal estate of a deceased 
 person. 
 
 Rule 2. — Any legatee interested in a legacy charged upon real 
 estate, and any person interested in the proceeds of real estate 
 directed to be sold, may, without serving any other legatee or person 
 interested in the proceeds of the estate, have a decree for the 
 administration of the estate of a deceased person. 
 
 Rule 3. — Any residuary devisee or heir may, without serving 
 any co -residuary devisee or co-heir have a like decree. 
 
 Rule 4. — Any one of several cestuis que trust under any deed or 
 instrument may, without serving any other of such cestuis que trust, 
 have a decree for the execution of the trusts of the deed or instru- 
 ment. 
 
 Rule 5. — In all cases of suits for the protection of property 
 j lending litigation, and in all cases in the nature of waste, one person 
 may sue on behalf of himself and of all persons having the same 
 interest. 
 
 Rule 6. — Any executor, administrator, or trustee may obtain a 
 decree against any one legatee, next of kin, or cestui que trust for the 
 administration of the estate, or the execution of the trusts. 
 
 Rule 7. — In all the above cases the Court, if it shall see fit, may 
 require any other person or persons to be made a party or parties to 
 the suit, and may, if it shall see fit, give the conduct of the suit to 
 such person as it may deem proper, and may make such order in 
 any particular case as it may deem just for placing the defendant on 
 the record on the same footing in regard to costs as other parties 
 having a common interest with him in the matters in question. 
 
 Rule 8. — In all the above cases, the persons who, according to the 
 present practice of the Court, would be necessary parties to the suits, 
 shall be served with notice of the decree, and after such notice they 
 shall be bound by the proceedings in the same manner as if they had 
 been originally made parties to the suits, and they may, by an order 
 of Court, have liberty to attend the proceedings under the decree ; 
 and any party so served may, within such time as shall in that behalf 
 be prescribed by the general order of the Lord Chancellor, apply to 
 the Court to add to the decree. 
 
 Rule 9. — In all suits concerning real or personal estate which is 
 vested in trustees under a will, settlement, or otherwise, such trustees 
 shall represent the persons beneficially interested under the trust, in 
 the same manner and to the same extent as the executors and 
 administrators in suits concerning personal estate, represent the 
 persons beneficially interested in such personal estate ; and in such 
 cases it shall not be necessary to make the parties beneficially
 
 Vi 'Registry unless 
 
 wise order
 
 8. Any person carrying on business in the name of a 
 firm apparently consisting of more than one person may R 
 lie sued in the name of such firm.
 
 FIRST SCHEDULE. RULES OF COURT. 197 
 
 interested under the trusts parties to the suit ; but the Court may, Order XVI. 
 upon consideration of the matter, on the hearing, if it shall so think Parties, 
 fit, order such persons, or any of them, to be made parties." 
 
 For cases decided upon this section, see Morgan's Chancery Acts 
 and Orders, p. 197, 4th edit. 
 
 Compare with Rule 9 in the section cited, Rule 7 of the present 
 order. 
 
 12. Subject as last aforesaid, in all Probate actions the 
 rules as to parties, heretofore in use in the Court of 
 Probate, shall continue to be in force. /9!P--/&¥ 
 
 13. jSTo action shall be defeated by reason of the mis- 
 joinder of parties, and the Court may in every action deal 
 with the matter in controversy so far as regards the rights 
 and interests of the parties actually before it. The Court 
 or a Judge may, at any stage of the proceedings, either 
 upon or without the application of either party, and on 
 such terms as may appear to the Court or a Judge to be 
 just, order that the name or names of any party or parties, 
 whether as plaintiffs or as defendants, improperly joined, 
 be struck out, and that the name or names of any party 
 or parties, whether plaintiffs or defendants, who ought to 
 have been joined, or whose presence before the Court may 
 
 be necessary in order to enable the Court effectually and ^c 
 completely to adjudicate upon and settle all the questions ' ' 
 involved in the action, be added. No person shall be 
 added as a plaintiff suing without a next friend, or as the 
 next friend of a plaintiff under any disability, without 
 his own consent thereto. All parties whose names are so 
 added as defendants shall be served with a summons or 
 notice in manner hereinafter mentioned, or in such manner 
 as may be prescribed by any special order, and the pro- 
 ceedings as against them shall be deemed to have begun 
 only on the service of such summons or notice. 
 
 As to the first clause of this section see note to Rule 1 of this 
 order. As to the practice with respect to amendments under the 
 latter part of the rule, see the following rules. 
 
 14. Any application to add or strike out or substitute a 
 plaintiff or defendant may be made to the Court or a Judge 
 at any time before trial by motion or summons, or at the 
 trial of the action in a summary manner. 
 
 This is in accordance with the practice of the Common Law 
 ( lourts. In Chancery it takes the place of the common order to 
 amend, hut allows much greater freedom of amendment than could 
 have been had under that order. 
 
 15. Where a defe ndant is added , unless otherwise 
 ordered by the Court or Judge, the plaintiff shall lile an
 
 198 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xvi. amended copy of and sue out a writ of summons, and 
 art1 "' serve such new defendant with such writ or notice in lieu 
 of service thereof in the same manner as original 
 defendants are served. 
 
 16. If a statement of claim has been delivered 
 previously to such defendant being added, the same shall, 
 unless otherwise ordered by the Court or Judge, be 
 amended in such manner as the making such new 
 defendant a party shall render desirable, and a copy of 
 such amended statement of claim shall lie delivered to 
 such new defendant at the time when he is served with 
 the writ of summons or notice or afterwards, within four 
 days after his appearance. 
 
 1 7. Where a defendant is or claims to be entitled to 
 contribution or indemnity, or any other remedy or relief 
 
 /6i./3. V-- - '-/<Y f pttff ver against any other person, or where from any other 
 ' cause it appears to the Court or a Judge that a question in 
 
 the action should be determined not only as between the 
 plaintiff and defendant, but as between the plaintiff, de- 
 fendant, and any other person, or between any or either 
 of them, the Court or a Judge may, on notice being given *?, /j 
 
 ,fy Q J~&6 to such last-mentioned person, mak e such orde r as may be 
 proper for having the ( q uesti on so d etermine d. *- 2 / 
 
 This and the four following rules deal with cases in which ques- 
 tions arise in an action which it is important to have conclusively 
 settled, not only as between the plaintiff and defendant, between 
 whom they originally arise, but also between other persons. Their 
 object is not to enable a defendant to obtain any actual present 
 relief against the plaintiff, or against a third person. That subject 
 is dealt with by s. 24, sub-s. 3 of the Act of 1873, and in Order 
 XIX., Rule 3, post, p. 205, and Order XXII., Rules 5 to 10, post, 
 p. 219. The rules now under consideration seem intended only to 
 secure a binding decision, with a view to future relief. 
 
 Two cases are mentioned in the above rule : — 
 
 1st. Where a defendant claims to be entitled to contribution, in- 
 demnity, or other remedy or relief over against any other 
 person. 
 
 In such cases it is obviously desirable, on the one hand, that the 
 question of the defendant's liability to the plaintiff should be finally 
 settled once for all, so that the decision should be binding as against 
 the person from whom he seeks relief over. On the other hand, it 
 is equally obvious that such person ought to have an opportunity of 
 intervening in the action, and resisting the decision which is to bind 
 him. 
 
 Three examples of this kind are given in the Form No. 1 in 
 Appendix B, post, p. 327. The first is the case of an action against 
 a surety, who claims contribution from another person as co-surety. 
 The second, an action against the acceptor of a bill of exchange. 
 who claims to be indemnified by another person on the ground that 
 the bill was accepted for his accommodation. The third, an action on a
 
 Sto2/k..2>. -fat) FIEST SCHEDULE. — RULES OF COURT. 199 
 
 contract of sale, in which the defendant claims to be indemnified by Order XV I. 
 another, on the ground that he made the contract as his agent. Parties. 
 
 2nd. The second case is where from any other cause it appears to 
 the Court or a Judge that a question in the action should be 
 determined, not only as between the plaintiff and defendant, 
 but as between the plaintiff and defendant and any other 
 person, or between any or either of them. 
 Where contribution, indemnity, or other remedy or relief over is 
 sought by a defendant against a person not already a party to the 
 action, the procedure is governed by Rules 18, 20, and 21 of this 
 order. Under those rules a notice is to be served upon him as a writ 
 of summons would be served, informing him of the nature of the claim 
 against the defendant, and the grounds on which indemnity, or as 
 the case may be, is claimed from him, and calling upon him to 
 appear in the action. If he omits to appear he will be bound by 
 any judgment in the action against the defendant, whether it be by 
 consent or otherwise. If he appears he may be allowed to defend 
 the action. 
 
 In any other case the procedure will be governed by the Rule now 
 under comment, and Rule 19 of this Order. 
 
 18. Where a defendant claims to "be entitled to contribu-/* 3 *-*^ r / 
 tion, indemnity, or other remedy or relief over against any"-* " **"/ 
 person not a party to the action, he may, by leave of the 
 
 Court or a Judge, issue a notice to that effect, stamped 
 with the seal with which writs of summons are sealed. A 
 copy of such notice shall be filed with the proper officer 
 and served on such person according to the rules relating 
 to the service of writs of summons. The notice shall 
 state the nature and grounds of the claim, and shall, 
 unless ot herwise ordered by th e Court or a_Jiidge,_be 
 served within the time limi t ed for delive ring his statement 
 of defence . "Such notice may be in the form or to the 
 effect of the Form No. 1 in Appendix (B) hereto, with 
 such variations as circumstances may require, and there- 
 with shall be served a copy of the statement of claim, or if - 
 there be no statement of claim, then a copy of the writ of 
 summons in the action. 
 
 As to the service of writs, see Order IX., ante, p. 175. 
 
 19. When under Rule 17 of this order it is made to 
 appear to the < lourtor a Judge at any time before or at the 
 trial that a question in the action should be determined, 
 not only as between the plaintiff and defendant, but as 
 between the plaintiff and the defendant and any other 
 person, or be1 ween anyor either of them, the Court or a Judge , 
 before. or at the l ime o f making the ord er for hay jiui such 
 
 | ion determined , shall direct such notice to be given 
 
 by the j>laTnt]Tr at such time and to such person and in 
 
 ach manner as may be thought proper, and if made at 
 
 the trial the Judge may postpone such trial as he may 
 
 think fit.
 
 200 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order XVI. Notice to tlie " other " person of the application for an order that 
 Parties. the question in dispute shall be so determined, as that the deter- 
 
 mination shall be binding upon him, seems to be provided for by 
 Rule 17. The notice which, under this rule, the plaintiff is to be 
 ordered to give is presumably a notice of trial. 
 
 20. If a person not a party to the action, who is served 
 as mentioned in Rule IS , desires to dispute the plaintiff's 
 claim in "the action as against the defendant on whose 
 behalf the notice has been given, he must enter an 
 appearance in the action within eight days from the 
 
 ■> service of the notice. In default of his so doing, he shall 
 be deemed to admit the validity of the judgment ob- 
 tained against such defendant, whether obtained by consent 
 or otherwise. Provided always, that a person so served 
 and failing to appear within the said period of eight 
 days may apply to the Court or a Judge for leave to 
 appear, and such leave may be given upon such terms, if 
 any, as the Court or a Judge shall think fit. 
 As to appearance see Order XII., ante, p. 181. 
 
 21. If a person not a party to the action served under 
 these r ules appears pursuant to the notice, the pa rty giving 
 the notic e" n raTapj >I.y _ to the C ourt or a Judge for directions 
 as to the mode of having the question in the action 
 determined ; and the Court or Judge, upon the hearing of 
 such application, may, if it shall appear desirable so to do, 
 give the person so served liberty to defend the action upon 
 such terms as shall seem just, and may direct such plead- 
 ings to be delivered, or such amendments in any pleadings 
 to be made, and generally may direct such proceedings to 
 be taken, and give such directions as to the Court or a 
 Judge shall appear proper for having the question most 
 conveniently determined, and as to the mode and extent 
 in or to which the person so served shall be bound or 
 made liable by the decision of the question. 
 
 ORDER XVII. 
 Joinder op Causes of Action. 
 
 Action. 
 
 Order XVI I. 
 Joinder of 
 
 Causes of 1. Subject to the following rules, the plaintiff may 
 
 unite in the same action and in the same statement of 
 claim several causes of action, but if it appear to the 
 Court or a Judge that any such causes of action 
 cannot be conveniently tried or disposed of together, the 
 Court or Judge may order separate trials of any of such
 
 FIRST SCHEDULE. — RULES OF COURT. 201 
 
 causes of action to be had, or may make such other order Order xvir. 
 as may be necessary or expedient for the separate disposal cTust'To'f 
 
 thereof. Action. 
 
 At Common Law, the question of whether several claims could be 
 joined in one action depended upon considerations of a purely- 
 technical character, relating to the form of action applicable to each 
 claim. But the C. L. P. Act, 1852, s. 41, authorized the joinder of 
 any causes of action in one action, except replevin and ejectment, 
 provided they were by and against the same parties and in the same 
 right. But this was subject to the power to order separate trials, 
 and direct separate records to be made up. 
 
 In Equity, multifariousness, that is the introduction of several 3Ca* d- « 
 separate and distinct objects into one suit, has always been a good 
 ground of objection to a bill. 
 
 No practical difficulty has ever been found to arise from the power 
 of joinder given by the C. L. P. Act. Plaintiffs have too much 
 regard for their own interest to confuse their cases by an 
 inconvenient combination of claims. And the several rules of this 
 order adopt the rides of the Common Law Courts with some con- 
 siderable extensions ; Rules 2, 4, 5, 6, post. 
 
 2. No cause of action shall unless by leave of the Court or >'■' ■ 
 a Judge be joined with an action for the recovery of land,.' ■:' 
 except claims in respect of mesne profits or arrears of rent 
 
 in respect of the premises claimed, or any part thereof, 
 and damages for breach of any contract under which the 
 same or any part thereof are held. 
 
 Hitherto no claim could be joined with a claim for possession in 
 ejectment, except a claim for mesne profits in the case of landlord 
 against tenant. 
 
 3. Claims by a trustee in bankruptcy as such shall not, 
 unless by leave of the Court or a judge, be joined with 
 any claim by him in any other capacity. 
 
 4. Claims by or against husband and wife may be joined 
 with claims by or against either of them separately. 
 
 In the Common Law Courts hitherto this could not be done, 
 except to the limited extent authorised by s. 40 of the C. L. P. Act, 
 1852, by which, in an action brought by a man and his wife for an 
 injury done to the wife, in which she was necessarily joined as co- 
 plaintiff, the husband might add claims in his own right. 
 
 5. Claims by or against an executor or administrator as 
 such may be joined with claims by or against him 
 personally, provided the last-mentioned claims are alleged 
 to arise with reference to the estate in respect of which 
 the plaintiff or defendant sues or is sued as executor or 
 administrator. 
 
 Whether an executor, on the one hand, ought to sue, and, on the 
 other hand, ought to be sued as such, or in his personal capacity, 
 
 K 5
 
 Action. 
 
 202 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order XVII. sometimes turns upon very fine distinctions. See Ashby v. Asltby, 
 Joinder of ' 6 B. & C. 444 ; Corner v. Skew, 3 M. & W. 350 ; Bolingbroke v. 
 Causes of Ken% Law Rep>> j Ex 2 22 ; ilfosefc// v. Rendett, Law Rep., 6 Q. B. 
 338 ; Abbott v. Parfitt, Law Rep., 6 Q. B. 346. And great incon- 
 venience has occasionally arisen from inability to join in the Common 
 Law Courts claims by or against an executor in his personal and 
 in his representative character. This rule removes the difficulty. 
 
 6. Claims by plaintiffs jointly may be joined with 
 claims by them or any of them separately against the 
 same defendant. 
 
 See Order XVI., Rule 1, ante, p. 192, and note thereto. 
 
 7. The last three preceding rides shall be subject to 
 Kule 1 of this Order, and to the Rules hereinafter 
 contained. 
 
 See note to the next rule. 
 
 8. Any defendant alleging that the plaintiff has united 
 in the same action several causes of action which cannot 
 be conveniently disposed of in one action, may at any 
 time apply to the Court or a Judge for an order confining 
 the action to such of the causes of action as may be con- 
 veniently disposed of in one proceeding. 
 
 Rule 1 of this order gives power to " order separate trials of any 
 of such causes of action, or make such order as may be necessary or 
 expedient for the separate disposal thereof." This and the next 
 rule speak of an order " confining the action to such of the causes 
 of action as may be conveniently disposed of in one proceeding," and 
 ordering other causes of action "to be excluded." If these latter 
 rules are to be construed strictly, it seems probable that, except in 
 some very extreme case, the former and less stringent power will be 
 exercised rather than the latter and more stringent. Possibly, how- 
 ever, the first rule (which, it may be observed, is taken from the 
 original schedule to the Act of 1873) may be regarded as the 
 governing rule ; and the later rules may be read as merely providing 
 the machinery for giving effect to it. If so, an order confining the 
 action may perhaps be read as meaning no more than an order 
 under Rule 1 ; and the order for amending the proceedings men- 
 tioned in Rule 9, may be little more than an order for separate 
 records, under s. 41 of the C. L. P. Act, 1852. 
 
 9. If, on the hearing of such application as in the last 
 preceding rule mentioned, it shall appear to the Court or a 
 Judge that the causes of action are such as cannot all be 
 conveniently disposed of in one action, the Court or a 
 Judge may order any of such causes of action to be ex- 
 cluded, and may direct the statement of claim, or, if no 
 statement of claim has been delivered, the copy of the 
 writ of summons and the indorsement of claim on the 
 writ of summons to be amended accordingly, and may 
 make such order as to costs as may be just.
 
 FIRST SCHEDULE. RULES OF COURT. 203 
 
 ORDER XVIII. O r v d ni. 
 
 Actions by 
 
 Actions by and against Lunatics and Persons of ? nd against 
 
 __ Lunatics and 
 
 Unsound Mind. Persons of 
 
 Unsound 
 
 In all cases in which lunatics and persons of unsound iMind ^_ 
 mind not so found by inquisition might respectively before 
 the passing of the Act have sued as plaintiffs or would 
 have been liable to be sued as defendants in any action or 
 suit, they may respectively sue as plaintiffs in any action 
 by their committee or next friend in manner practised in 
 thr ( 'ourt of Chancery before the passing of the said Act, 
 and may in like manner defend any action by their com- 
 mittees or guardians appointed for that purpose. 
 
 In the Common Law Courts lunatics have hitherto sued and been 
 sued in person or by attorney ; 2 Chitty's Archbold, p. 126, 11th 
 edit. Idiots have appeared in person, and a next friend has then 
 been allowed to intervene ; ibid. 
 
 In Chancery, lunatics and persons of iinsound mind not so found 
 have sued by the committee of the estate, or if there was none, by 
 next friend. The committee of the estate of a lunatic so found, 
 has been a necessary party to a suit affecting that estate, and 
 defended for the lunatic. A person of unsound mind, not so found, 
 if defendant, has appeared, and then a guardian ad litem has been 
 appointed, as of course, on his own application. If he failed to 
 apply, the plaintiff might obtain such an appointment. 
 
 ORDER XIX. 
 Pleading Generally. Order xix. 
 
 Pleading 
 
 1. The following rules of pleading shall be substituted ene — y ' 
 for those heretofore used in the High Court of Chancery 
 
 il in the Courts of Common Law, Admiralty, and 
 Probate. 
 
 By s. 100 of the Judicature Act, 1873, ante, p. 113, with which 
 the Act of 1875, to which the rules form the schedule, is incorporated, 
 ante, p. 126, "pleading" includes "any petition or summons; " and 
 also "the statements in writing of the claim or demand of any 
 plaintiffs, and of the defence of any defendant thereto, and of the 
 the plaintiff to any counter claim of a defendant." 
 
 2. Unless the defendant in an actios at the time of his 
 appearance shall stab' that he does not require the delivery 
 nf a statement of complaint, the plaintiff shall within such 
 time and in such manner as hereinafter prescribed, deliver 
 to the defendant after bis appearance a statement of his
 
 204 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xix. complaint and of the relief or remedy to which he claims 
 GeneraUy. to be entitled. The defendant shall within such time and 
 in such manner as hereinafter prescribed deliver to the 
 plaintiff a statement of his defence, set-off, or counter- 
 claim (if any), and the plaintiff shall in like manner 
 deliver a statement of his reply (if any) to such defence, 
 set-off, or counter-claim. Such statements shall be as 
 brief as the nature of the case will admit, and the Court 
 in adjusting the costs of the action shall inquire at the 
 instance of any party into any unnecessary prolixity, and 
 order the costs occasioned by such prolixity to be borne 
 by the party chargeable with the same. 
 
 For the form of a Memorandum of Appearance, see Appendix (A), 
 Parti, No. 6, post, p. 317. As to delivery of pleadings, see Rule 7 
 of this Order, post, p. 208. For time for delivering claim, see 
 Order XXL, post, p. 215. For time for delivering defence, see 
 Order XXII., post, p. 217. As to counter-claims, see the next rule, 
 and Order XXII., Rules 5 to 10, post, p. 219. For time for reply, 
 see Order XXIV., post, p. 222. 
 
 The question of undue prolixity is to be inquired into by the 
 taxing officer, in the absence of any order of the Court or Judge ; 
 Additional Rules, post, p. 413 ; and either with or without the 
 application of any party ; ibid. 
 
 By s. 24 of the Judicature Act, 1873. 
 
 Sub-s. 1. If any plaintiff or petitioner claims to be en- 
 titled to any equitable estate or right, or to relief 
 upon any equitable ground against any deed, 
 instrument, or contract, or against any right, 
 title, or claim whatsoever asserted by any defen- 
 dant or respondent in such cause or matter, or to 
 any relief founded upon a legal right, which 
 heretofore could only have been given by a Court 
 of Equity, the said Court respectively, and every 
 Judge thereof, shall give to such plaintiff or peti- 
 tioner such and the same relief as ought to have 
 been given by the Court of Chancery in a suit in- 
 proceeding for the same or the I ike purpose pro- 
 perly instituted before the passing of this Act. 
 
 Sub-s. 2. If any defendant claims to be entitled to any 
 equitable estate or right, or to relief upon any 
 equitable ground against any deed, instrument, 
 or contract, or against any rigid, title, or claim 
 asserted by any plaintiff or petitioner in such 
 cause or matter, or alleges any ground of equi- 
 table defence to any claim of the plaintiff or 
 petitioner in such cause or matter, the said Courts 
 respectively, and every judge thereof, shall give
 
 FIRST SCHEDULE. — RULES OF COURT. 205 
 
 to every equitable estate, right, or ground of Order xix. 
 relief so claimed, and to every equitable defence Generally 
 so alleged, such and the same effect, by way of 
 defence against the claim of such plaintiff or 
 petitioner, as the Court of Chancery ought to 
 have given if the same or the like matters had 
 been relied on by way of defence in any suit or 
 proceeding instituted in that Court for the same 
 or the like purpose before the passing of this Act. 
 
 Sub-s. 6. Subject to the aforesaid provisions for giving 
 effect to equitable rights and other matters of equity 
 in manner aforesaid, and to the other express 
 provisions of this Act, the said Courts respectively, 
 and every judge thereof, shall recognise and give 
 effect to all legal claims and demands, and cdl 
 estates, titles, rights, duties, obligations, and lia- 
 bilities existing by the Common Law, or by any 
 custom, or created by any statute, in the same 
 manner as the same would have been recognised 
 and given effect to if this Act had not been passed 
 by any of the Courts ivhose jurisdiction is hereby 
 transferred to the said High Court of Justice. 
 
 Sub-s. 7. The High Court of Justice and the Court of 
 Appeal respectively, in the exercise of the juris- 
 diction vested in them by this Act in every cause 
 or matter pending before them respectively, shall 
 have power to grant, and shall grant, either 
 absolutely or on such reasonable terms and con- 
 ditions as to them shall seem just, all such reme- 
 dies whatsoever as any of the parties thereto may 
 appear to be entitled to in respect of any and 
 every legal or equitable claim properly brought for- 
 ward by them respectively in such cause or matter; 
 so that, as far as possible, all matters so in contro- 
 versy between the said parties respectively may be 
 completely and finally determined, and cdl mul- 
 tiplicity of legal proceedings concerning any of 
 such matters avoided. 
 
 3. A defendant in an action may set-off, or set up, by /££• *• S7& 
 way of counter-claim again s t the cl aims of the plaintiff , a„c£?2> : /£+ ? 
 any right or claim, whether such set-off or counter-claim 
 sound in damages or not, and such set-off or counter-claim 
 shall have the same effect as a statement of claim in a cross 
 action, so as to enable the Court to pronounce a final judg- 
 ment in the same action, both on the original and on the 
 cross claim. But the Court or a Judge may, on the appli
 
 206 SUPREME COURT OP JUDICATURE ACT, 1875. 
 
 Order xix. cation of the plaintiff before trial, if in the opinion of the 
 
 Generally Court or Judge such set-off or counter-claim cannot he con- 
 
 — veniently disposed of iu the pending action, or ought not 
 
 to he allowed, refuse permission to the defendant to avail 
 
 himself thereof. 2. &L ■ ^•^/ 3 **■ 
 
 By sec. 24, sub-sec. 3, of the Judicature Act, 1873, ante, p. 59. 
 
 The said Court* n spectively, and < very judge thereof, 
 shall also have power to grant to any defen- 
 dant in respect of any equitable estate or right, 
 or other matter of equity, and also in respect of 
 any legal estate, right, or title claimed or asserted 
 by hi hi, all such relief against any plaintiff or 
 petitioner as such defendant shall have properly 
 claimed by his pleading, and as the said Courts 
 respectively, or any judge thereof, might have 
 granted in any suit instituted for that purpose 
 by the same defendant against the same plaintiff 
 or petitioner : and also all such relief relating to 
 or connected with the original subject of the cause 
 or matter, and in like manner claimed against 
 any other person, whether already a .party to the 
 same cause or matter, or not, mho shall have 
 been duly served with notice in writing of such 
 claim pursuant tn mug rule of Court, or mug 
 order of the Court, as might properly liave been 
 grunted against such person if he had been made 
 a defendant to a cause duly instituted by the 
 same defendant for the like purpose : and every 
 person served with any such notice shall thence- 
 forth be deemed a party to such cause or matter, 
 with the same rights in respect of his defence 
 against such claim, as if he had been duly 
 iu the ordinary way by such defendant. 
 
 By Order XXII., Rule 10, post, p. 220. 
 
 " Where iu any action a set-off or counter-claim is established 
 as a defence against the plaintiff's claim, the Court may, if the 
 balance is in favour of the defendant, give judgment for the defen- 
 dant for such balance, or may otherwise adjudge to the defendant 
 such relief as he may be entitled to upon the merits of the case." 
 
 The section and rules above set out introduce changes of the most 
 important kind : — 
 
 First, in the case of pecuniary claims, the power of set off is no 
 longer, as has hitherto been the case, limited to debts. Claims for 
 unliquidated damages may for the fixture be set-off or set up against 
 debts, and debts against damages, and damages against damages. 
 
 Secondly, a cross claim by a defendant may not merely be used 
 by way of set-off, as a defence to the plaintiff's claim ; a defendant 
 may, by way of counter-claim, claim in the original action any relief 
 against the plaintiff, which he could hitherto have sought by a cross
 
 ORDER XIX.— Pleading generally. 
 9. In Order XIX., Rule 5, of "The Rules of the Order xix. 
 Supreme Court," the word "ten" is hereby substituted Rule s a - 
 for the word "three" before the word "folios."
 
 »= -Rpnch, Commo 
 ac Uobs m the Queen > Bene! ^ 
 
 Exchequer ^^te^nct Jtorf** 
 Associates and not m the u
 
 FIRST SCHEDULE. — RULES OF COURT. 207 
 
 action at law, or suit in equity; so that there may be a judgment in Order XIX. 
 his favour for a sum of money, if the balance of pecuniary claim Pleading 
 prove to be in his favour ; or any other remedy or relief may be (j,ene rc" 1 y- 
 adjudged to him to which he may show himself to be entitled. 
 
 Several examples of counter-claims will be found among the Pre- 
 cedents of Pleading, in Appendix (C), post, p. 333. Thus in No. 10, 
 post, p. 343, in answer to an action for freight of a ship under a time- 
 charter, a counter-claim is set up for damages for breach of a warranty 
 of speed in the charter party. In No. 24, post, p. 370, in answer to 
 an action to recover possession of a house, a counter-claim is set for 
 specific performance of an agreement to grant a lease of the house 
 to the defendant. 
 
 Thirdly, not only may relief be sought against the plaintiff by way 
 of counter-claim, but also relief relating to or connected with the 
 original subject matter of the action may be sought against any 
 other person, whether already a party to the action or not. 
 
 With respect to the case in which third parties, other than the 
 original plaintiff and defendant, are to be brought in, not to obtain 
 any present relief against them, but to obtain a decision binding as 
 against them of the original question in the action, see Order 
 XVI., Rules 17 to 21, ante, p. 198, and note thereto. 
 
 As to pleadings in cases of counter-claims, see Rules 10, 20, of this 
 Order ; Order XXIL, Rules 5 to 10, post, p. 219. 
 
 As to excluding a counter-claim when it cannot conveniently be 
 disposed of in the action, see Order XXIL, Rule 9, post, p. 220. 
 
 4. Every pleading shall contain as concisely as may be 
 a statement of tlie material facts on which the party 
 pic; uling relies, but not the evidence by which they are 
 to be proved, such statement being divided into paragraphs, 
 numbered consecutively, and each paragraph containing, as 
 nearly as may be, a separate allegation. Dates, sums, and 
 numbers shall be expressed in figures and not in words. 
 Signature of counsel shall not be necessary. Forms similar 
 to those in Appendix (C) hereto may be used. 
 
 As to the signature of pleadings, the greatest diversity of practice 
 has hitherto prevailed in the various Courts to which the rules of 
 this schedule apply. In the Common Law Courts, signature has 
 long been dispensed with. In Chancery, bills, answers and informa- 
 fcione, have required the signature of counsel, though petitions have 
 not, except in certain cases. Admiralty pleadings have been signed 
 both by counsel and proctor. In the Probate Court, pleadings have 
 not been signed. 
 
 5. Everypleadingwhich shall contain less than three folios 
 miI\ two words each (every figure being counted as one 
 
 word) ;na\ be either printed or written, or partly printed 
 
 and partly written, and every other pleading I being a 
 
 petition or summons, shall be printed. 
 
 = :JL *~" The use of printed pleadings is new, except as regards the Chancery 
 
 88.8, < A division and in Admiralty. 
 
 with t • All pleadings, when required to be printed, are to be printed by 
 be p rfies ; A.dditiona] Kul is, Orders f. to V., post, p. 391; where 
 irovisions will In: found for printing, delivery of copies, and costs 
 elating I b ireto.
 
 208 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xix. 3. Every pleading or other document required to be 
 Generaify delivered to a party, or between parties, shall be delivered 
 3C6 Q <- ^2 * n ^ ie manner now ^ use ^° ^ ie solicitor of every party 
 who appears by a solicitor, or to the party if he does not 
 appear by a solicitor, but if no appearance has been entered 
 for any party then such pleading or do cum ent shall be 
 delivered by being filed with the proper officer. 
 
 7. Every pleading in an action shall be delivered between 
 parties, and shall be marked on the face with the date of the 
 day on which it is delivered, and with the reference to the 
 letter and number of the action, the division to which, 
 and the Judge (if any) to whom the action is assigned, the 
 title of the action, the description of the pleading, and 
 the name and place, of the business of the solicitor and 
 agent (if any), delivering the same, or the name and 
 address of the party delivering the same if he does not 
 act by a solicitor. 
 
 Hitherto Chancery pleadings have been filed as well as served 
 on the parties ; so have pleadings in the Admiralty and Probate 
 Courts. In the Common Law Courts pleadings have merely been 
 served and not filed, except where it was necessary to file a declara- 
 tion upon default of appearance. (See note to Order XIII., Rules 
 5 and 6, ante, p. 186). Under the above rule, all pleadings are, in the 
 first instance, to be delivered between the parties ; but when judg- 
 ment is entered, then (by Order XLL, Rule 1, post, p. 272) a copy 
 of the pleadings is to be delivered to the proper officer, presumably to 
 be filed. As to the times for delivering pleadings, see Order XXI., 
 and notes thereto, post, p. 215; Order XXII., post, p. 217 ; 
 Order XXIV., post, p. 222 ; Order LVIL, post, p. 300. As to the 
 letter and number, see Order V., Rule 8, ante, p. 171. 
 
 8. Every statement of claim shall state specifically the 
 relief which the plaintiff claims, either simply or in the 
 alternative, and may also ask for general relief. And the 
 same rule shall apply to any counter-claim made, or relief 
 claimed by the defendant, in his statement of defence. If 
 the plaintiff's claim be for discovery only the statement of 
 claims shall show it. 
 
 9. Where the plaintiff seeks relief in respect of several 
 distinct claims or causes of complaint founded upon 
 separate and distinct facts, they shall be stated, as far as 
 may be, separately and distinctly. And the same ride shall 
 apply where the defendant relies upon several distinct 
 grounds of defence, set off, or counter-claim founded upon 
 separate and distinct facts. 
 
 As to the joinder of several causes of action, see Order XVII.. 
 ante, p. 200.
 
 FIRST SCHEDULE. — RULES OF COURT. 209 
 
 10. Where any defendant seeks to rely upon any facts Order xix. 
 as supporting a right of set-off or counter-claim, he shall, Generaify. 
 in his statement of defence, state specifically that he does 
 
 so by way of set-off or counter-claim. 
 
 See Appendix (C), Nos. 10, 14, 24, post, pp. 348, 356, 370. 
 
 11. If either party wishes to deny the right of any 
 other party to claim as executor, or as trustee, whether 
 in bankruptcy or otherwise, or in any representative or 
 other alleged capacity, or the alleged constitution of any 
 partnership firm, he shall deny the same specifically. 
 
 12. In probate actions where the plaintiff disputes the 
 interest of the defendant, he shall allege in his statement 
 of claim that he denies the defendant's interest. 
 
 13. Xo plea or defence shall be pleaded in abatement. 
 
 A plea in abatement in a Common Law action has been a plea 
 which, without disputing the cause of action alleged, stated facts 
 which showed that the plaintiff could not properly recover in the 
 action as brought. They were generally founded upon some per- 
 sonal disability of parties, or upon defect of parties. As to defect 
 of parties, see Order XVI., Rules 13 to 16, ante, p. 197. 
 
 14. ]N"o new assignment shall hereafter he necessary or 3 <^- 2*. -Z ^ 
 used. But everything which has heretofore been alleged 
 
 by way of new assignment may hereafter be introduced 
 by amendment of the statement of claim. 
 
 It has frequently happened in Common Law pleading that a 
 plaintiff has stated his cause of action in the declaration, and the 
 defendant has pleaded to it something which, if true, would seem to 
 be an answer to the plaintiff's complaint ; but that in truth the 
 defendant has, wholly or partially, mistaken the cause of action 
 to which the declaration was intended to refer. The action might 
 be for breach of covenant to repair, and the plea might allege a 
 release ; but the plaintiff might really be going for breaches sub- 
 sequent to the alleged release. Or, in an action of trespass to 
 which a justification was pleaded, the plaintiff might really mean 
 to complain of a different trespass from that sought to be justified, 
 or of acts on the occasion in question in excess of what the alleged 
 justification would cover. In such cases, the plaintiff's only course 
 was to new assign, that is to say, to restate his cause of complaint 
 with greater precision, so as to show the inapplicability of the 
 defence pleaded. The defendant then pleaded to the new assign- 
 ment. See Bullen & Leake's Precedents of Pleadings, p. 653, note (6), 
 3rd edit. ; 1 Chitty's Archbold, p. 302, 11th edit. 
 
 It is obvious that the necessity for new assignments arose solely 
 from the generality of Common Law pleadings and the absence of 
 detail in those matters of fact on which the identification of the real 
 cause of action depends. Under the new system, in which the 
 statement of claim will be a narrative of the facts of the case, it is 
 unlikely that any such misapprehensions as those which gave rise to
 
 210 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order XIX. new assignments need arise. An example of pleading in a case in 
 Pleadbg which there would hitherto certainly have been a new assignment, 
 Generally. ^ n be f oum \ in Appendix (0), No. 27, post, p. 376. 
 
 If such misapprehension does arise it may, under this rule, be 
 corrected by amendment of the statement of claim. The amend- 
 ment may be made as of right, without any order for the purpose, 
 under Order XXVII., Fade 2, post, p. 223. 
 
 15. X<> defendant in an action for the recovery of land 
 who is in possession by himself or his tenant need plead his 
 title, unless his defence depends on an equitable estate or 
 right or he claims relief upon any equitable ground 
 against any right or title asserted by the plaintiff. But, 
 except in the cases hereinbefore mentioned, it shall be 
 sufficient to state by way of defence that he is so in 
 possession, And he may nevertheless rely upon any ground 
 of defence which he can prove, except as hereinbefore 
 mentioned. 
 
 Hitherto in an action for the recovery of land, in the form of an 
 ejectment, according to the practice as regulated by the C. L. P. 
 Act, 1852, there have been no pleadings. The question tried has 
 been simply whether or not the plaintiff was entitled to the 
 possession of the land on the day laid in the writ. Under the new 
 procedure there will be no sjjecial form of action for the recovery of 
 land : See note to Order II., Rule 3, antt . p. 159. There will, there- 
 fore, be pleadings in actions to recover land as wellas in other actii >ns. 
 The above rule is for the protection of defendants in such actions in 
 the cases specified. 
 
 16. Nothing in these rules contained shall effect the 
 right of any defendant to plead not guilty by statute. 
 And every defence of not guilty by statute shall have the 
 same effect as a plea of not guilty by statute has hereto- 
 fore had. But if the defendant so plead he shall not 
 plead any other defence without the leave of the Court 
 or a Judge. 
 
 A large number of Acts, from early times down to the present, 
 have contained provisions whereby particular persons sued for 
 particular classes of acts, may plead in answer the simple plea of 
 not guilty, without further disclosing the defence on which they mean 
 to rely, and may still prove any defence in justification which they can 
 substantiate. By E..-G., T. T., 1853, Eule 21, the defendant must 
 in such case insert in the margin of such plea the words "by 
 statute," adding the year, chapter, and section of any statutes on 
 which he relies, and stating whether they are public or not. 
 
 This privilege has been most frecpuently given for the protection 
 of persons sued in respect of acts done in connection with the 
 discharge of public or official duties. But it is by no means 
 confined to such cases. See many instances collected in Bullen & 
 Leake's Precedents of Pleadings, pp. 701, et seq., 3rd edit. The 
 right of so pleading is preserved by this rule. 
 
 17. Every allegation of fact in any pleading in an
 
 PIEST SCHEDULE. — RULES OF COURT. 211 
 
 action, not being a petition or summons, if not denied Order xix. 
 specifically or by ne<vssary implication , or stated to be Generaify 
 not admitted in the pleading of the opposite party, shall — s , 
 be taken to be admitted, except as against an u ^^i^x^"^%a/ 
 lunatic, or person of unsound mind not so found by ' ' 
 
 inquisition. 
 
 The principle that each party is taken to admit those allegations 
 in the pleading of the opposite party which he does not deny has 
 always been a fundamental doctrine of Common Law pleading. It 
 lias not prevailed in Chancery. Its introduction into Chancery 
 pleadings, supplemented as it is by Rule 20 of this Order, pro- 
 hibiting mere general denials in the cases to which it applies, and 
 the disentanglement at the same time of Chancery pleadings from 
 discovery, with which they have hitherto been mixed up, may not 
 improbably have the effect of materially changing the character of 
 pleadings in the Chancery Division. 
 
 18. Each party in any pleading, not being a petition or 
 summons, must allege all such facts not appearing in the 
 previous pleadings as he means to rely on, and must raise 
 all such grounds of defence or reply, as the case may be, 
 as if not raised on the pleadings would be likely to take 
 the opposite party by surprise, or would raise new issues 
 of fact not arising out of the pleadings, as for instance, 
 fraud, or that any claim has been barred by the Statute of 
 Limitations or has been released. 
 
 19. No pleading, not being a petition or summons, 
 shall, except by way of amendment, raise any new ground 
 of claim or contain any allegation of fact inconsistent 
 with the previous pleadings of the party pleading the same. 
 
 This rule is in accordance with the rule hitherto in force both 
 at Common Law and in Chancery, except that it seems to contem- 
 plate a larger right of amendment than has been allowed in 
 Chancery. 
 
 ^ c 20. It shall not be sufficient for a defendant in his^X- 34S^o 
 1 7&< defence to deny generally the facts alleged by the state- 3S3jf~ t S6f~ ' & 
 ment of claim, or for a plaintiff in his reply to deny ny-j 
 generally the facts alleged in a defence by way of counter- - , 
 claim, but each party must deal specifically with each 
 allegation of fact of which he does no1 admii the truth. 
 
 21. Subject to tbc last preceding Rule, the plaintiff by /f-C/.. 2> z-^f-f 
 his rep ly may join issue upon the defence, and cadi party 
 in his pleading, if any, subsequent to reply, may join 
 previous pleading. Such joinder of issue 
 shall operate as a denial of every material allegation of 
 fact iii the pleading upon which issue is joined, but it may
 
 2l2 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xix. except any facts "which, the party may be willing to admit. 
 Generaify. arid shall then operate as a denial of the facts not so 
 — admitted. 
 
 The effect of these two rules taken together is, that, whether in 
 the case of a claim by the plaintiff or a counter-claim by the defen- 
 dant, the opposing party is not at liberty to deny the facts alleged 
 in general terms, but must deal with them in detail. But the party 
 who has once told his own story in detail may, by a mere joinder of 
 issue, deny in general terms what his opponent alleges in answer, 
 unless the answer be by way of counter-claim. Joinder of issue, 
 however, is to operate merely by way of denial. Of course, if the 
 party entitled to join issue is not content w T ith mere denial, and 
 wishes to introduce new facts to answer his opponent's allegations, 
 he must plead those facts under Rule 18 of this Order, or amend his 
 previous pleadings. 
 
 22. When a party in any pleading denies an allegation 
 of fact in the previous pleading of the opposite party, he 
 must not do so evasively, but answer the point of sub- 
 stance. Thus, if it be alleged that he received a certain 
 sum of money, it shall not be sufficient to deny that he 
 received that particular amount, but he must deny that 
 he received that sum or any part thereof, or else set out 
 how much he received. And so when a matter of fact is 
 alleged with divers circumstances, it shall not be sufficient 
 to deny it as alleged along with those circumstances, but 
 a fair and substantial answer must be given. 
 
 23. When a contract is alleged in any pleading, a bare 
 denial of the contract by the opposite party shall be con- 
 strued only as a denial of the making of the contract in 
 fact, and not of its legality or its sufficiency in law, 
 whether with reference to the Statute of Frauds or 
 otherwise. 
 
 24. AVherever the contents of any document are 
 material, it shall be sufficient in any pleading to state the 
 effect thereof as briefly as possible, without setting out 
 the whole or any part thereof unless the precise words of 
 the document or any part thereof are material. 
 
 25. Wherever it is material to allege malice, fraudulent 
 intention, knowledge, or other condition of the mind of 
 jany person, it shall be sufficient to allege the same as a 
 [fact without setting out the circumstances from which the 
 same is to be inferred. 
 
 26. Wherever it is material to allege notice to any 
 person of any fact, matter, or tiling, it shall be sufficient 
 to allege such notice as a fact, unless tin 1 form or the 
 precise terms of such notice he material.
 
 FIRST SCHEDULE. — RULES OP COURT. 213 
 
 27. Wherever any contract or any relation between Order xix. 
 any persons does not arise from an express agreement, but Pleading 
 
 is to be applied from a series of letters or conversations, '~ neT ^ y ' 
 or otherwise from a number of circumstances, it shall be I 
 sufficient to allege such contract _or_relati on as a fac t, and J 
 to refer generally to such letters, conversations, or circuni- 
 stances without setting them out in detail. And if in 
 such case the person so pleading desires to rely in the 
 alternative upon more contracts or relations than one as to 
 be implied from such circumstances, he may state the 
 same in the alternative. 
 
 For an example of this method of pleading, see Appendix (C.,) No. 
 5, post, p. 340. 
 
 28. Neither party need in any pleading allege any 
 matter of fact -which the law presumes in his favour, or 
 as to which the burden of proof lies upon the other side, 
 unless the same has first been specifically denied. 
 
 [E.g. — Consideration for a bdl of exchange where the 
 plaintiff sues only on the bill, and not for the considera- 
 tion as a substantive ground of claim.] 
 See Appendix C, Nos. 6 and 7, post, p. 341, 343. 
 
 29. "Where an action proceeds in a district registry all 
 pleadings and other documents required to be filed shall 
 be filed in the district registry. 
 
 As to when an action is to proceed in the district registry, see 
 Order XII., Rules 4 and 5, ante, p. 182. As to proceedings in district 
 registries generally see note to Order V., Rule 1, ante, p. 168. As to 
 filing pleadings, see Rule 7 of this Order, ante, p. 208, and note 
 thereto. 
 
 30. In actions for damage by collision between vessels, 
 unless the Court or a Judge shall otherwise order, each 
 solicitor shall, before any pleading is delivered, file with 
 the proper officer a document to be called a Preliminary 
 Act, which shall hi' sealed up and shall not be opened 
 until ordered by the Court or a Judge, and which shall 
 contain a statement of the following particulars : — 
 
 (a.) The names of the vessels which came into collision 
 and the names of their masters. 
 (h.) The time of the collision. 
 (c.) The place of the collision. 
 ('/.) The direction of the wind. 
 (e.) The state of the weather. 
 if.) The state ami force of the tide. 
 (</.) The course and speed of the vessel when the other 
 
 Was firsl seen.
 
 214 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xix. (h.) The lights, if any, carried by her. 
 Generally (''•) ^he distance and bearing of the other vessel when 
 
 — first seen. 
 
 (/>;.) The lights, if any, of the other vessel which were 
 first seen. 
 
 (I.) Whether any lights of the other vessel, other than 
 those first seen, came into view before the collision. 
 
 (///.) What measures were taken, and when, to avoid 
 the collision. 
 
 (n.) The parts of each vessel which first came into 
 contact. 
 
 If both solicitors consent, the Court or a Judge may 
 order the preliminary acts to be opened and the evid'eace 
 to be taken thereon without its being necessary to deliver 
 any pleadings. 
 
 OEDER XX. 
 
 r Order XX. PLEADING MATTERS ARISING PENDING THE ACTION. 
 
 Pleading 
 
 ing pending" x - -A- n y ground of defence which has arisen after action 
 the Action, brought, but before the defendant has delivered his state- 
 ment of defence, and before the time limited for his doing 
 so has expired, may be pleaded by the defendant in his 
 statement of defence, either alone or together with other 
 grounds of defence. And if, after a statement of defence 
 has been delivered, any ground of defence arises to any 
 set-off or counter-claim alleged therein by the defendant, 
 it may be pleaded by the plaintiff in his reply, either 
 alone or together with any other ground of reply. 
 
 2. Where any ground of defence arises after the de- 
 fendant has delivered a statement of defence, or after the 
 time limited for his doing so has expired, the defendant 
 may, and where any ground of defence to any set-off or 
 counter-claim arises after reply, or after the time limited 
 for delivering a reply has expired, the plaintiff may, 
 within eight days after such ground of defence has arisen, 
 and by leave of the Court or a Judge, deliver a further 
 defence or further reply, as the case may be, setting forth 
 the same. 
 
 3. Whenever any defendant, in his statement of defence, 
 or in any further statement of defence as in the last Rule 
 mentioned alleges any ground of defence which has arisen 
 after the commencement of the action, the plaintiff may
 
 FIRST SCHEDULE. RULES OF COURT. 215 
 
 deliver a confession of such defence, which confession may Order xx. 
 be in the form No. 2 in Appendix (B.) hereto, with such Matters S aris- 
 variations as circumstances may require, and he may in s pending 
 thereupon sign judgment for his costs up to the time of 
 the pleading of such defence unless the Court or a Judge 
 shall, either before or after the delivery of such confession, 
 otherwise order. 
 
 The provisions of this order are in substance the same, with a few- 
 exceptions, as those of ss. 68 and 69 of the C. L. P. Act, 1852, and 
 Rules 22 and 23 of R. G-., T. T., 1853. But by the older rules the right 
 to confess the plea, and take judgment for costs, was expressly excluded 
 where the matter arising after action was pleaded by one of several 
 defendants. There is no such limitation in this order. 
 
 The extension also in express terms of the right of setting up a 
 defence arising after action brought to the case of a plaintiff 
 answering a set-off or counter claim, is new. As to when matter so 
 arising could hitherto be replied see Eyton v. Littledale, 4 Ex. 159 ; 
 .V; wi in/ton v. Levy, Law Rep. 5 C. P. 607 ; Law Rep. 6 C. P. 180. 
 It will be observed that the right to confess under Rule 3, is limited 
 to the plaintiff. 
 
 Such a confession of a defence as that here provided for, does not 
 operate as a mere discontinuance of the action, or leave the plaintiff 
 at liberty to commence a fresh action. It is a determination of the 
 matters in litigation, and precludes any second action for the same 
 cause. Nciciwjton v. Levy, ubi supra. 
 
 ORDER XXI. 
 
 Statement of Claim. Order xxi. 
 
 Statement of 
 
 1. Subject to Fades 2 and 3 of this Order, the delivery . - 
 of statements of claim shall be regulated as follows : — //v J) / 
 
 («.) If the defendant shall not state that he does not re- 
 quire the delivery of a statement of claim the plaintiff shall, 
 unless otherwise ordered by the Court or a Judge, deliver 
 i! within six weeks from the time of the defendant's 
 entering his appearance. 
 
 (A.) The plaintiff may, if he think fit, at any time after 
 the issue of the writ of summons, deliver a statement of 
 claim, with the writ of summons or notice in lieu of 
 writ of summons, or at any time afterwards, either before" 
 or after appearance, and although the defendant may have 
 appeared and stated that he docs not require the delivery 
 of a statement of claim : Provided that in no case where 
 a defendant has appeared shall a statement be delivered 
 i tliau six weeks after the appearance has been entered, 
 unless otherwise ordered by the Court or a Judge.
 
 216 SUPREME COURT OF JUDICATURE ACT, 18ZJ. 
 
 Order xxi. (c.) Where a plaintiff delivers a statement of claim 
 claim" 16 "' ° f without being required to do so, the Court or a Judge 
 — may make such order as to the costs occasioned thereby as 
 shall seem just, if it appears that the delivery of a state- 
 ment of claim was unnecessary or improper. 
 
 The statement that the defendant does not require a statement of 
 claim is to lie at the time of appearance. See Order XII., Ride 10, 
 ante, p. 183 ; Appendix (A), Form No. 6, post, p. 317 ; Order XIX., 
 Rule 2, ante, p. 203. 
 
 Hitherto the plaintiff in a Common Law action has, of strict 
 right, had the whole of the term next after the appearance of the 
 defendant to deliver his declaration. If he did not declare within 
 that time, after notice to declare, he was liable to judgment of non 
 pros. If no such judgment was entered, he had a year after service 
 of the writ to declare in, after which he was out of Court. See 
 C. L. P. Act, 1852, ss. 53, 58, notes to those sections in Day's 
 Common Law Procedure Acts; 1 Chitty's Archbold, p. 222, 11th 
 edit. 
 
 In Chancery, no question on this point could arise, the bill or 
 statement of claim being itself the commencement of the action. 
 
 Under Order XIX., Rule 2, and this Rule, the plaintiff must 
 deliver a statement of claim, if the defendant has appeared and has 
 not given notice at the time of appearance, dispensing with its 
 delivery. 
 
 He may deliver one, although either the defendant has not 
 appeared, or has appeared and disj)ensed with its delivery. But as 
 to costs, see also Additional Rules, post, p. 414. 
 
 The statement of claim may be served with the writ of summons, 
 or, in ordinary cases, at any time between that and six weeks after 
 appearance ; but the time may be enlarged. 
 
 In Probate cases, the time may be longer, since, by Rule 2, if the 
 defendant has appeared, the plaintiff has eight days from the filing 
 of the defendant's affidavit of scripts for delivering his statement. 
 In Admiralty actions in rem, by Rule 3, the statement of claim 
 must be delivered within twelve days from appearance. Where a 
 ship is under arrest, it might well be unjust to allow any delay on 
 the part of the plaintiff before disclosing his claim. 
 
 These times may be either enlarged or abridged by order of a 
 judge, and an order for enlargement may be made either before or 
 after the prescribed time has expired. Order LVIL, Ride 6, post, 
 p. 300. 
 
 No pleadings can be either delivered or amended in the long- 
 vacation, except by order of the Court or a judge ; and the period 
 of the long vacation is not to be reckoned in computing the time for 
 delivering any pleading, unless an order to the contrary is made. 
 Order LVIL, Rules 4, 5, post, p. 300. 
 
 By Order LVIL, Rule 2>,post, p. 300, "Where the time for doing 
 any act or taking any proceeding expires on a Sunday, or other day 
 on which the offices are closed, and by reason thereof such act or pro- 
 ceeding cannot be done or taken on that day," the next day is allowed. 
 
 2. In Probate actions the plaintiff shall, unless other- 
 wise ordered by the Court or a Judge, deliver his statement 
 of claim within six weeks from the entry of appearance by 
 the defendant, or from the time limited for his appearance,
 
 FIRST SCHEDULE. — RULES UE COURT. 
 
 21' 
 
 in case he has made default ; but where the defendant has Order 
 appeared the plaintiff shall not be compelled to deliver it statement of 
 untd the expiration of eight days after the defendant has Ciaim^ 
 filed his affidavit as to scripts. 
 
 3. In Admiralty actions in rem the plaintiff shall, within 
 twelve days from the appearance of the defendant, deliver 
 his statement of claim. 
 
 4. "Where the writ is specially indorsed, and the defen- 
 dant has not dispensed with a statement of claim, it shall 
 be sufficient for the plaintiff to deliver as his statement of 
 claim a notice to the effect that his claim is that which 
 appears by the indorsement upon the writ, \udess the Court 
 or a Judge shall order him to deliver a further statement. 
 Such notice may be either written or printed or partly 
 written and partly printed, and may be in the form No. 3 
 in Appendix ( I?), hereto, and shall be marked on the face in 
 the same maimer as is required in the case of an ordinary 
 statement of claim. And when the plaintiff is ordered to 
 deliver such further statement it shall be delivered within 
 such time as by such order shall be directed, and if no time 
 be so limited then within the time prescribed by Rule 1 of 
 this Order. 
 
 The special indorsement referred to is where the claim is merely 
 for a debt or liquidated demand, and the writ is indorsed with par- 
 ticulars of the claim, under Order III., Rule 6, ante, p. 166. 
 
 It is probable that in all the simpler classes of money claims, as 
 for the price of goods, arrears of rent or salary, money lent, on bills 
 or notes, and the like, the cheap and easy process provided by this 
 section will be universally adopted. The special indorsement on 
 the writ, if fairly framed, in the groat majority of cases gives the 
 defendant all the information lie can need as to the claim he has to 
 meet. If in any case the indorsement is insufficient for this 
 purpose, an application for further particulars can be made under 
 this rule. 
 
 ORDER XXII. Order 
 
 Defence. 
 
 Defence. 
 
 1. Where a statement of claim is delivered to a defen- 
 dant he shall (hdjym^Jujijl^fjjni^e within eight, days from 2. ^C 
 the, delivery of the statement of claim, or from the time 
 limited fur appearance, whichever shall be last, unless 
 such time is extended by the ('miit or a Judge. 
 
 Hitherto the defendant in a Common Law action has had eight 
 days to plead ; ('. L. P. Act, 1852, s. 63. The time has always been
 
 218 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Defence. 
 
 Order freely enlarged when necessary, but as a general rule only upon 
 
 XXII. terms, the material one of which has been that the defendant 
 
 should take short notice, that is a four days' notice, of trial. See 
 Order XXXVI., Rule 9, post, p. 25. In Chancery a defendant 
 required to answer has had twenty-eight days from the delivery of 
 the interrogatories : See Order XX XVII., Rule 4, of the Consoli- 
 dated Orders, and notes thereto in Morgan's Chancery Acts and 
 Orders, p. 564, 4th edit. 
 
 In Admiralty suits the time to answer has been twelve days ; 
 Adm. Rules 68. In Probate suits the time to plead has been 8 days ; 
 Rule 38, Contentious Business. 
 
 The time being now fixed at so short a period as eight days in all 
 the divisions, further time to plead will probably have to be obtained 
 in the great majority of cases. 
 
 As to the extension or reduction of the time for pleading, and 
 as to the computation of time, and vacations, see note to Order 
 XXI., Rule 1, ante, p. 216, and Orders LVIL and LXL, post, 
 pp. 300, 308. 
 
 As to the time for delivering a further defence, founded upon 
 matters arising after defence delivered, see Order XX., Riile 2, 
 ante, p. 214. 
 
 -!. A defendant who has appeared in an action and 
 stated that he does not require the delivery of a state- 
 ment of claim, and to whom a statement of claim is not 
 delivered, may deliver a defence at any time within 
 eight days after his appearance, unless such time is 
 extended hy the Court or a Judge. 
 
 If the plaintiff has delivered a statement of claim, then, under 
 Order XIX., Rule 2, and Rule 1 of this Order, the defendant is 
 bound to deliver a defence. If he fail to do so, judgment may be 
 had againtt him by default, under Order XXlX., Rules 2 to 11. 
 But if the statement of claim has been delivered uncalled for and 
 improperly, the plaintiff may be ordered to pay the costs occasioned 
 thereby : Order XXI., Rule 1, ante, p. 216 ; and Additional Rules, 
 post, p. 414. 
 
 If the defendant at the time of his appearance (Order XII., 
 Rule 10, ante, p. 183, Appendix (A), Form No. 6, post, p. 317, Order 
 XIX., Rule 2, ante, p. 203), dispenses with the delivery of a state- 
 ment of claim, and if the plaintiff takes advantage of the notice and 
 delivers none, then the defendant is, by this rule, not bound to 
 deliver any defence. The effect appears to be that in such a case 
 pleadings are dispensed with by mutual consent, the indorsement on 
 the writ alone identifying the controversy to be decided. This rule, 
 however, reserves to the defendant the right to deliver a defence, 
 although no statement of claim has been delivered. 
 
 3. Where leave has heen given to a defendant to defend 
 under Order XIV., Eide 1, he shall deliver his defence, if 
 any, within such time as shall he hmited hy the order 
 giving him leave to defend, or if no time is thereby 
 limited, then within eight days after the order. 
 
 This refers to the case of a writ specially indorsed, when the 
 plaintiff has; applied for judgment notwithstanding appearance.
 
 FIRST SCHEDULE. RULES OF COURT. 219 
 
 4. "Where the Court or a Judge shall be of opinion that Order 
 any allegations of fact denied or not admitted by the Defence, 
 defence ought to have been admitted, the Court may make — 
 such order as shall be just with respect to any extra costs 
 occasioned by their having been denied or not admitted. 
 
 By Order XIX., Rule 17, mite, p. 210, any allegation not denied 
 or stated not to be admitted is to be taken as admitted. Admissions 
 may also be made by notice apart from the pleadings. Order XXXII., 
 Fade I, post, p. 239. 
 
 5. "Where a defendant by his defence sets up any counter- _ 
 claim, which raises questions between himself and the l^OC. £.&.y& 
 plaintiff along with any other person , or persons , he shall *'fc *S 
 
 add to the title of his defence a further title similar to tin- 
 title in a statement of complaint, setting forth the names 
 of all the persons who, if such counter-claim were to be 
 enforced by cross action, would be defendants to such cross 
 action, and shall deliver his defence to such of them as are 
 parties to the action within the period within which he is 
 required to deliver it to the plaintiff. 
 
 The right of a defendant to join other persons besides the plaintiff 
 in a counter-claim depends upon s. 24, subs. 3, of the Judicature Act, 
 1873. See Order XIX., Rule 3, ante, p. 205, and note thereto. 
 
 G. Where any such person as in the last preceding Rule 
 mentioned is not a party to the action, he shall be sum- 
 moned to appear by being served with a copy of the defence, 
 and such service shall be regulated by the same Hides as 
 are hereinbefore contained with respect to the service of 
 a writ of summons, and every defence so served shall be 
 indorsed in the Form No. 4 in Appendix (Y>) hereto, or to 
 the like effect. 
 
 As to service of writs of summons, see Orders IX., X., XI., ante, 
 p. 175. 
 
 7. Any person not a defendant to the action, who is 
 served with a defence and counter-claim as aforesaid, must 
 app ea r thereto as if he had been served with a writ of sum- 
 mons to appear in an action. 
 
 As to appearance, see Order XII., ante, p. 181. 
 
 8. Any person named in a defence as a party to a 
 counter-claim thereby made may deliver a reply, within the 
 time within which he might deliver a defence if it were a 
 statement of claim. 
 
 The time to deliver a defence is eight days, unless the time is- 
 enlarged ; Hide 1 of this Order, ante, p. 217. 
 
 * L 2
 
 220 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 XXII. 
 Defence. 
 
 
 ftX-?). to &. 
 
 9. Where a defendant by bis statement of defence sets 
 up a counter-claim, if the plaintiff or any otber person 
 named in manner aforesaid as party to such counter-claim 
 contends that the claim thereby raised ought not to be dis- 
 posed of by way of counter-claim, but in an independent 
 action, he may at any time before reply, apply to the 
 Court or a Judge for an order that such counter-claim may 
 
 !" be excluded, and the Court or a Judge may, on the hearing 
 of such application, make such order as shall be just. 
 See Order XIX., Rule 3, ante, p. 205. 
 
 10. Where in any action a set-off or counter-claim is 
 established as a defence against the plaintiffs claim, the 
 Court may, if the balance is in favour of the defendant, 
 give judgment for the defendant for such balance, or may 
 otherwise adjudge to the defendant such relief as he may 
 be entitled to upon the merits of the case. 
 
 See sec. 24. subs. 6. of the Judicature Act, 1873 ; Order XIX., 
 Rule 3, ante, p. 205, and note thereto. 
 
 11. In Probate actions the party opposing a will may, 
 with bis defence, give notice to the party setting up the 
 will that be merely insists upon the will being proved in 
 solemn form of law, and only intends to cross-examine the 
 witnesses produced in support of the will, and he shall 
 thereupon be at liberty to do so, and shall be subject to 
 the same liabilities in respect of costs as he would have 
 been under similar circumstances according to the practice 
 of the Court of Probate. 
 
 This rule is in accordance with the practice hitherto existing in 
 the Probate Court under Rule 41 of Rules Contentious Business, 
 30th July, 1862. 
 
 Order 
 XXIII. 
 Discon- 
 tinuance. 
 
 ORDER XXIII. 
 Discontinuance. 
 
 The plaintiff may, at any time before receipt of the 
 defendant's statement of defence, or after the receipt 
 thereof before taking any other proceeding in the action 
 (save an interlocutory application), by notice in writing, 
 wholly discontinue his action or withdraw any part or 
 parts of his alleged cause of complaint, and thereupon he 
 shall pay the defendant's costs of the action, or, if the 
 action be not wholly discontinued, the defendant's costs 
 occasioned by the matter so withdrawn. Such costs shall
 
 
 FIRST SCHEDULE. — RULES OP COURT. 221 
 
 2) 2%b e taxed, and such discontinuance or withdrawal, as the Order 
 case may be, shall not be a defence to any subsequent ^^n- 
 action. Save as in this Rule otherwise provided, it shall tinuance. 
 not be competent for the plaintiff to withdraw the Eecord 
 or discontinue the action without leave of the Court or 
 a Judge, but the Court or a Judge may, before, or at, or 
 after the hearing or trial, upon such terms as to costs, and 
 as to any other action, and otherwise as may seem fit, 
 order the action to be discontinued, or any part of the 
 alleged cause of complaint to be struck out. The Court 
 or a Judge may, in like manner, and with the like discre- 
 tion as to terms, upon the application of a defendant, order 
 the whole or any part of his alleged grounds of defence or 
 counter-claim to be withdrawn or struck out, but it shall 
 not be competent to a defendant to withdraw his defence, 
 or any part thereof, without such leave. 
 
 ORDER XXIII.— Discontinuance. *^^ / 
 10. A defendant may sign judgment for the costs of order 
 an action if it is wholly discontinued, or for the costs jjPj 111 '' 
 occasioned by the matter withdrawn, if the action be not 
 wholly discontinued, 
 on payment of costs ; after decree, only by consent. 
 
 It has also been the right of the party who entered a cause for 
 trial to withdraw the record at any time before the jury were sworn 
 to try the cause ; in which case he had to pay the costs of the day. 
 The effect of withdrawing the record has been to revoke the entry of 
 the cause for trial (causes having been entered for trial by delivering 
 the Nisi Prius record to the officer of the Court). But it left the 
 right of re-entering the cause for trial subsequently. 
 
 This rule is one of several in the present body of rules which 
 materially curtail the plaintiff's freedom of control over the conduct - 
 of the cause, and leave him much less fully dominus litis than he has 
 hitherto been. He must for the future deliver his statement of claim 
 within six weeks after appearance ; Order XXL, Rule 1, ante, p. 
 215 ; and his reply within three weeks after defence ; Order XXIV., 
 Rule 1, pout. His right to discontinue is by this rule restrained. 
 If he fail to give notice of trial within a limited time, the 
 defendant may do so ; Order XXXVI. , Rule 4, post, p. 250. He 
 cannot by this rule withdraw the record, except by leave. Nor 
 can he countermand notice of trial if he has once given it, except 
 by consent or with leave; Order XXXVI., Rule 13, post, p. 251. 
 And he cannot, as heretofore, elect to be nonsuited, reserving the 
 right to bring a fresh action for the cause. A nonsuit will be 
 equivalent to a judgment on the merits for the defendant, subject 
 to its being set aside for cause ; Order XLL, Rule 6, post, p. 273. 
 
 If tin; statement of defence sets up matters arising after the 
 issue of the writ of summons, the truth of which the plaintiff 
 cannot deny, and which afford a good answer in law, the proper 
 course for the plaintiff will be, not to discontinue under this order, 
 but to enter a confession of the defence, and take judgment for his 
 costs under Order XX., Rule 3, write, p. 214.
 
 222 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 OKDER XXIY. 
 
 Eeplt and Subsequent Pleadings. 
 
 Order 
 XXIV. 
 Reply and 
 Subsequent 
 Pleadings. 
 
 1. A plaintiff shall deliver his reply, if any, within 
 three weeks after the defence or the last of the defences 
 shall have been delivered, unless the time shall he extended 
 by the Court or a Judge. c£n^< <rf^/^~4&..&. 3^ff 
 
 The time for reply in Common Law Courts has hitherto been 
 unlimited, subject to the right of the defendant to call upon the plain- 
 tiff to reply ; C. L. P. Act, 1852, s. 53. In Admiralty suits six 
 days have been allowed ; Adm. Rules, Rule 68 ; in Probate suits 
 eight days, Rules Contentious Business, Rule 39. 
 
 In Chancery replications might be filed within four weeks after 
 answer : but they have been used less frequently than at law. Any 
 matter which the plaintiff has found it necessary to bring forward in 
 addition to what he stated in his bill has been introduced ordinarily 
 by way of amendment of his bill. 
 
 As to extension of time for pleading, the computation of time, 
 and vacations, see note to Order XXI., Rule 1, ante, p. 216. 
 
 As to the time for delivering a further reply to a counter-claim 
 founded upon matter arising- after reply or the time for reply, see 
 Order XX., Ride 2, ante, p. 214. 
 
 2. No pleading subsequent to reply other than a joinder 
 of issue shall he pleaded without leave of the Court or a 
 Judge, and then upon such terms as the Court of Judge 
 shall think fit. 
 
 3. Subject to the last preceding Rule, every pleading 
 subsequent to reply shall be debvered within font days 
 after the delivery of the previous pleading, unless the time 
 shall be extended by the Court or a Judge. 
 
 Order XXV. 
 Close of 
 Pleadings. 
 
 7 
 
 Order 
 XXVI. 
 Issues. 
 
 OEDEK XXV. 
 ( i.< >> k of Pleadings. 
 
 As soon as either party has joined issue Upon ally plead- 
 ing of the opposite party simply without adding any f urther 
 or other pleading thereto, the pleadings as between such 
 parties shall be deemed to be closed. 
 
 OEDEK XXVI. 
 
 Issues. 
 
 Where in any action it appears to a Judge that the 
 statement of claim or defence or reply does not sufficiently 
 define the issues of fact in dispute between the parties, he 
 may direct the parties to prepare issue.-, and such iss 
 -hall, if the parties differ, be settled by the Judge.
 
 FIRST SCHEDULE. — RULES OP COURT. 223 
 
 OKDER XXVII. Orfer 
 
 . -,-, Amendment 
 
 Amendment of Pleadings. of Pleadings. 
 
 1. The Court or a Judge may, at any stage of the pro- /& .<$. ^Z^,, 
 ceerlings, allow either party to alter his statement of claim ■ zz ^-^- 7^f / 
 or defence or reply, or may order to he struck out or 
 
 amended any matter in such statements respectively which 
 
 may he scandalous, or which may tend to prejudice, ?\w-3C&. ( />. /o o 
 
 harrass, or delay the fair trial of the action, and all such 
 
 amendments shall be made as may he necessary for the 
 
 purpose of determining the real questions or question in 
 
 controversy between the parties. 
 
 The very large powers of amendment given by this rule have 
 long been possessed and freely exercised by the Common Law Courts ; 
 C. L. P. Act, 1852, s. 222 ; C. L. P. Act, 1854, s. 96 ; C. L. P. Act, 
 1860, s. 36. 
 
 By Rule 6 of this Order, an api)lication to amend may be made to 
 the Court or to a judge at chambers, or to the judge at the trial. 
 
 As to when amendments may be made without leave, see the next 
 following rules. 
 
 As to amendments by striking out, adding, or substituting parties, 
 see Order XVI., Rides 13 to 16, ante, p. 197. 
 
 As to the case of claims inconveniently joined, see Order XVII., 
 Rules 1, 8, 9, ante, p. 200 ; and as to counter-claims inconveniently 
 raised, see Order, XXII. , Rule 9, ante, p. 220. 
 
 By Order LVIIL, Rule 5, post, p. 304, the Court of Appeal has all 
 the powers as to amendment of the Court of First Instance. 
 
 By Order XXVIII., Rule 7, no order for amendment is to be 
 made while a demurrer is pending, except on payment of the 
 costs of the demurrer. 
 
 2. The ulaintiff may, without any leave, amend his 
 
 6. The Court, or a Judge, may, at any stage of the pro- o^ 
 ceedings, allow the Plaintiff to amend the writ of summons SS 
 m such manner, and on such terms, as may seem just. 
 
 Order XXIV, Ride 1. 
 
 No amendment can be made without leave while a demurrer is 
 pending, and such leave can only be given on payment of the costs 
 of the demurrer. Order XXV11I., Rule 7, post, p. 227. 
 
 •".. A defendant who lias set up in Ins defence any set- 
 off or counter-claim may, without any leave, amend such 
 set-off or counter-claim at any time before the expiration 
 nf the time allowed him for pleading to the reply, and 
 before pleading thereto, or in case there be no reply, then 
 at any time before the expiration of I wenty-ei^lit days 
 from the Sling of his defence. 
 
 As to the time to plead to a reply, see Order XXIV, Rule 3.
 
 224 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order 4. Where any party lias amended his pleading under 
 
 Amendment either of the last two preceding Eides, the opposite party 
 of Pleadings, may, within eight days after the delivery to him of the 
 amended pleading, apply to the Court or a Judge, to 
 disallow the amendment, or any part thereof, and the 
 Court or Judge, may, if satisfied that the justice of the 
 case requires it, disallow the same, or allow it subject to 
 such terms as to costs or otherwise as may seem just. 
 
 5. Where any party has amended his pleading under 
 Ride 2 or 3 of this Order, the other party may apply to 
 the Court or a Judge for leave to plead or amend his 
 former pleading within such time and upon such terms as 
 may seem just. 
 
 It will be observed that under this order there is no absolute right 
 in either party to amend his pleading or plead further because his 
 opponent has amended ; an order must be obtained under this rule. 
 
 6. In all cases not provided for by the preceding Rules 
 of this Order, application for leave to amend any pleading 
 may be made by either party to the Court or a Judge in 
 
 //"Z < 'hambers, or to the Judge at the trial of the action, and 
 
 such amendment may be allowed upon such terms as to 
 costs or otherwise as may seem just. 
 
 7. If a party who has obtained an order for leave to 
 amend a pleading delivered by him does not amend the 
 same within the time limited for that purpose by the 
 order, or if no time is thereby limited, then within four- 
 teen days from the date of the order, such order to amend 
 shall, on the expiration of such limited time as aforesaid, 
 or of such fourteen days, as the case may be, become ipso 
 facto void, unless the time is extended by the Court or a 
 Judge. 
 
 8. A pleading may be amended by written alterations 
 in the pleading which has been delivered, and by additions 
 on paper to be interleaved therewith if necessary, unless 
 the amendments require the insertion of more than 144 
 words in any one place, or are so numerous or of such a 
 nature that the making them in writing would render the 
 pleading difficult or inconvenient to read, in either of 
 which cases the amendment must be made by delivering a 
 print of the pleading as amended. 
 
 As to when pleadings generally may be written and when they 
 must be printed, see Order XIX., Eule 5, ante, p. 207.
 
 FIRST SCHEDULE. — RULES OP COURT. 220 
 
 9. "Whenever any pleading is amended, such pleading Order 
 when amended shall he marked with the date of the Amendment 
 order, if any, under which the same is so amended, and of of Pleadings 
 the day on which such amendment is made, in manner 
 following, viz. : "Amended day of ." 
 
 10. Whenever a pleading is amended, such amended 
 pleading shall be delivered to the opposite party within 
 the time alloAved for amending the same. 
 
 OKDEE XXVIII. Order^ 
 
 Demurrer. 
 
 1. Any party may demur to any pleading of the oppo- 
 site party, or to any part of a pleading setting up a distinct 
 cause of action, ground of defence, set-off, counter-claim, 
 reply, or, as the case may be, on the ground that the facts 
 alleged therein do not show any cause of action, or ground of 
 defence to a claim or any part thereof, or set off, or 
 counter-claim, or reply, or, as the case may be, to which 
 effect can be given by the Court as against the party 
 demurring. 
 
 In Chancery a demurrer has lain only to a bill, not to an answer. 
 The Common Law practice of allowing a demurrer to any pleading, 
 or any separate ground of claim or defence in any pleading, is here 
 adopted. In Admiralty, demurrers have not hitherto been in use 
 But objections to the sufficiency of pleadings in point of law have 
 been taken by the analogous proceeding of a motion to disallow the 
 pleadings ; Williams' and Bruce Adm. Practice, p. 250. 
 
 2. A demurrer shall state specifically whether it is to 
 the whole or to a part, and if so, to what part, of the 
 pleading of the opposite party. It shall state some 
 
 • ground in law for the demurrer, but the party demurring 
 shall not, on the argument of the demurrer, be limited to 
 tin ground so stated. A demurrer may be in the 
 Form 28 in Appendix ((') hereto. If there is no ground, 
 or only a frivolous ground of demurrer stated, the Court 
 or .Fudge may set aside such demurrer, with costs. 
 
 3. A demurrer shall be delivered in the same manner 
 and within the same time as any other pleading in the 
 action. 2.«-^? f'*- 
 
 As to delivery of pleadings, see Order XIX., Rules 6, 7, ante, 
 p. 208. 
 
 As to times for pleading, see Order XXI., Rule 1, and note 
 thereto, ante, p. 215 ; Order XXII., Rules 1, 2, 3, 8, ante, p. 217 ; 
 Order XXIV., Rules 1, 3, ante, p. 222. 
 
 I, O 
 
 Demurrer
 
 22G SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order 4. A defendant desiring to demur to part of a state- 
 
 XXVIII • • 
 
 Demurrer, ment of claim, and to put in a defence to the other part, 
 — shall combine such demurrer and defence in one pleading. 
 And so in every case where a party entitled to put in a 
 further pleading desires to demur to part of the last 
 pleading of the opposite party he shall combine such 
 demurrer and other pleading. 
 
 There is nothing, it will he observed, in this rule authorizing any 
 party as of right to plead and demur to the same matters, but only 
 to different matters contained in the same pleading. But, apparently 
 under the rule, whenever any party demurs and pleads at the same 
 time, the pleading and demurrer must be one document, and not be 
 delivered separately. 
 
 5. If the party demurring desires to be at liberty to 
 plead as '/."ill a- demur to the matter demurred to, lie may, 
 before demurring, apply to the Court or a Judge for an 
 order giving Mm leave fco do so; and the Court or Judge, 
 if satisfied that there is reasonable ground for the demurrer, 
 may make an order accordingly, or may reserve leave to 
 him t<> ] ile nl after the demurrer is overruled, or may make 
 such other order and upon such terms as may be just. 
 
 Where any party desires to demur without precluding himself from 
 also pleading to the same matter to which he demurs, three courses 
 are open : 
 
 1. He may obtain leave, under this rule, to plead as well as demur. 
 
 This is in accordance with the practice hitherto observed in 
 the Common Law Courts, under the C. L. P. Act, 1852, s. 80. 
 
 2. He may also under this rule obtain an order reserving him leave 
 
 to plead in case the demurrer be overruled. 
 
 In either case leave is only to be given if the Court or judge 
 is >atisfied that there is reasonable ground for the demurrer, 
 and terms may be imposed. 
 
 3. He may proceed with his demurrer simply, and leave it to the 
 
 ( 'mirt if it overrules his demurrer to give him leave to plead, 
 under Rule 12 of this Order. 
 
 6. When a demurrer either to the Avhole or part, of a 
 pleading is delivered, either party may enter the demurrer 
 for argument immediately, and the party so entering such 
 demurrer shall on the same day give notice thereof to the 
 other party. If the demurrer shall not be entered and 
 notice thereof given within ten days after delivery, and if 
 the party whose pleading is demurred to does not within 
 such time serve an order for leave to amend, the demurrer 
 shall be held sufficient for the same purposes ami with the 
 same residt as to costs as if it had been allowed on 
 argument. 
 
 This rule is similar to Order XIV., Rules 14 and 15 of the 
 Consolidated Orders. 
 
 Although this rule leaves it open t" either party to enter a
 
 FIRST SCHEDULE. RULES OF COURT. 227 
 
 demurrer for argument, its practical effect is to compel the party Order 
 demurred to, to enter the demurrer, unless he amends his pleading ; XXVIII. 
 since the omission to take one or other of these courses within ten Demurrer, 
 days will be equivalent to judgment against him on the demurrer 
 with costs. As to the effect of judgment allowing a demurrer, see 
 Eules 8, 9, 10 of this Order. 
 
 As to amendment pending a demurrer, see the next rule ; and as 
 to amendments generally, see Order XXVII., ante, p. 223. 
 
 7. "While a demurrer to the whole or any part of a 
 pleading is pending, such pleading shall not be amended, 
 unless by order of the Court or a Judge ; and no such 
 order shall be made except on payment of the costs of the 
 demurrer. 
 
 See as to amendment, Order XXVII., ante, p. 223. 
 
 8. Where a demurrer to the whole or part of any 
 pleading is allowed upon argument, the party whose 
 pleading is demurred to shall, unless the Court otherwise 
 order, pay to the demurring party the costs of the 
 demurrer. 
 
 9. If a demurrer to the whole of a statement of claim 
 be allowed, the plaintiff, subject to the power of the 
 Court to allow the statement of claim to be amended, 
 shall pay to the demurring defendant the costs of the 
 action, unless the Court shall otherwise order. 
 
 10. "Where a demurrer to any pleading or part of a 
 pleading is allowed in any case not falling within the last 
 preceding Rule, then (subject to the power of the Court 
 to allow an amendment) the matter demurred to shall 
 as between the parties to the demurrer be deemed to be 
 struck out of the pleadings, and the rights of the parties " 
 shall be the same as if it had not been pleaded. 
 
 11. Where a. demurrer is overruled the demurring 
 party shall pay to the opposite party the costs occasioned 
 by the demurrer, unless the Court shall otherwise direct. 
 
 12. Where a demurrer is overruled the Court may 
 make such orderand upon such terms as to the Court shall 
 seem right for allowing the demurring party to raise by 
 pleading any case he may be desirous to set up in opposi- 
 tion to the matter demurred to. 
 
 See note to Kule f> of this Order. 
 
 13. A demurrer shall lie. entered for argument by 
 delivering to the proper officer a- memorandum of entry in 
 the Form No. 29 in Appendix (C).
 
 228 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order 
 XXIX 
 
 Default of 
 Pleading. 
 
 ORDER XXIX. 
 
 Deeault of Pleading. 
 
 3C6-® *&' 
 
 
 1. If the plaintiff, being bound to deliver a statement of 
 claim, does not deliver the same within the time allowed 
 for that purpose, the defendant may at the expiration of 
 that time, apply to the Court or a Judge to dismiss the 
 action with costs, for want of prosecution ; and on the 
 hearing of such application the Court or Judge may, if no 
 statement of claim have been delivered, order the action to 
 be dismissed accordingly, or may make such other order on 
 such terms as to the Court or Judge shall seem just. 
 
 As to time, see Order XXI., Rule 1, and note thereto, ante, p. 215. 
 
 2. If the plaintiff's claim he only for a debt or liquidated 
 demand, and the defendant does not, within the time 
 allowed for that purpose, deliver a defence or demurrer, 
 the plaintiff may, at the expiration of such time, enter final 
 judgment for the amount claimed, with costs. 
 
 This is in accordance with the Common Law practice under the 
 ('. L. P. Act, 1852, s. 93. 
 
 3. When in any such act inn as in the last preceding 
 Rule mentioned there are several defendants, if one of 
 them make default as mentioned in the last preceding Ride, 
 the plaintiff may enter final judgment against the defen- 
 dant so making default, and issue execution upon such 
 judgment without prejudice to his right to proceed with 
 his action against the other defendants. 
 
 This provision is new. See note to Order XIII., Ride 1, ante, p. 186. 
 
 4. If the plaintiff's claim tie for detention of goods and 
 pecuniary damages, or either of them, and the defendant 
 makes default as mentioned in Rule 2. the plaintiff may 
 enter an interlocutory judgment against the defendant. 
 and a writ of inquiry shall issue to assess the value of the 
 goods, and the damages, or the damages only, as the case 
 may be. But the Court or a Judge may order that, 
 instead of a writ of inquiry, the value and amount of 
 damages, or either of them shall lie ascertained in any 
 way in which any question arising in an action may lie 
 tried. 
 
 Hitherto damages in such a case could only lie assessed by a 
 sheriff's jury under a writ of inquiry, or by a master in cases within 
 s. 94 of the C. L. P. Act, 1852. See note to Order XIII., Rule 6, 
 ante, p. 187.
 
 FIRST SCHEDULE. — HULKS OF COURT. 229 
 
 5. When in any such action as in Rule 4 mentioned there ( >der 
 are several defendants, if one of them make default as Default of 
 mentioned in Rule 2, the plaintiff may enter an inter- fading. 
 locutory judgment against the defendant so making- 
 default, and proceed with his action against the others. 
 And in such case, damages against the defendant making 
 default shall be assessed at the same time with the trial of 
 the action or issues therein against the other defendants, 
 unless the Court or a Judge shall otherwise direct. 
 
 This is in accordance with the practice in the Common Law 
 Courts hitherto. 
 
 (5. If the plaintiffs claim be for a debt or liquidated 
 demand, and also for detention of goods and pecuniary 
 damages, or pecuniary damages only, and the defendant 
 makes default as mentioned in Rule 2, the plaintiff may 
 enter final judgment for the debt or liquidated demand, 
 and also enter interlocutory judgment for the value of the 
 goods and the damages, or the damages only, as the case 
 may be, and proceed as mentioned in Rule 4. 
 
 7. In an action for the recovery of land, if the defen- 
 danl makes default as mentioned in Rule 2. the plaintiff 
 niay cuter a judgment that the person whose title is 
 asserted in the writ of summons shall recover possession 
 of the land, with his costs. 
 
 Hitherto there have been no pleadings in such actions, the pro- 
 ceedings being by action of ejectment. See note to Order II., 
 Rule 3, (nite, p. 159. 
 
 8. Where the plaintiff has endorsed a claim for mesne 
 profits, arrears of rent, or damages for breach of contract 
 upon a writ for the recovery of land, if the defendant 
 makes default as mentioned in Ride 2, or if there be more 
 than one defendant, some or one of the defendants make 
 such default, the plaintiff may enter judgment against the 
 defaulting defendant or defendants, and proceed as men- 
 tioned in Rules 4 and - r ). 
 
 !). in Probate actions, if any defendant make default in 
 filing and delivering a defence or demurrer, the action may 
 proceed, notwithstanding such default. 
 
 10. In all other actions than those in the preceding/^ 
 rules of this older mentioned, if the defendant makes 
 default in delivering a defence or demurrer, the plaintiff 
 may set down the action on motion for judgment, and such '
 
 230 
 
 Order 
 XXIX. 
 
 Default of 
 Pleading. 
 
 3<**1>. 16?*- 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 judgment shall be given as upon the statement of claim 
 the Court shall consider the plaintiff to be entitled to. 
 
 This rule applies in all actions other than actions for a debt, or 
 damages, or the recovery of goods, or lands, or Probate actions. 
 As to motion for judgment see Order XL., post, p. 269. 
 
 11. Where, in any such action as mentioned in the 
 last preceding rule, there are several defendants, then, if 
 one of such defendants make such default as aforesaid, the 
 plaintiff may either set down the action at once on motion 
 for judgment against the defendant so making default, or 
 may set it down against him at the time when it is entered 
 for trial or set down on motion for judgment against the 
 other defendants. 
 
 12. If the plaintiff does not deliver a reply or de- 
 murrer, or any party does not deliver any subsequent 
 pleading, or a demurrer, within the period allowed for that 
 purpose, the pleadings shall be deemed to be closed at the 
 expiration of that period, and the statements of fact in 
 the pleading Last delivered shall be deemed to be admitted. 
 
 13. In any case in which issues arise in an action other 
 than between plaintiff and defendant, if any party to any 
 such issue makes default in delivering any pleading, the 
 opposite party may apply to the Court or a Judge for such 
 judgment, if any, as upon the pleadings he may appear to 
 be entitled to. And the Court may order judgment to 
 be entered accordingly, or may make such other order as 
 may be necessary to do complete justice between the 
 I tarties. 
 
 See s. 24, sub-s. 3 of the Judicature Act, 1873, and Order XIX., 
 Rule 3, ante, p. 205, and note thereto. 
 
 14. Any judgment by default, whether under this order 
 or under any other of these Rules, may be set aside by the 
 Court or a Judge, upon such terms as to costs or otherwise 
 as such Court or Judge may think fit. 
 
 Order 
 XXX. 
 Payment 
 into Court ir 
 Satisfaction. 
 
 ORDER XXX. 
 Payment into Court in Satisfaction. 
 
 1. "Where any action is brought to recover a debt or 
 damages, any defendant may at any time after service of 
 the writ, and before or at the time of delivering his defence.
 
 FIRST SCHEDULE. RULES OF COURT. 231 
 
 or by leave of the Court or a Judge at any later time, pay Order xxx. 
 into Court a sum of money by way of satisfaction or ^toCourt in 
 amends. Payment into Court shall be pleaded in the Satisfaction. 
 defence, and the claim or cause of action in respect of 2£r.QJ z 8/ 
 which such payment shall be made shall be specified 
 therein. 
 
 The practice of paying money into Court in satisfaction of the 
 plaintiffs claim has hitherto been governed by several statutes. 
 
 By the 6' & 7 Vict., c. 92, s. 2, in an action for a libel contained in 
 any public newspaper or periodical publication, the defendant may 
 plead that the libel was inserted without actual malice and without 
 gross negligence, and that before the commencement of the action, 
 or at the earliest opportunity afterwards, an apology was published 
 or offered, and may pay money into Court by way of amends. 
 
 By s. 70 of the C. L. P. Act, 1852, payment into Court was 
 allowed in all actions except actions for assault and battery, false 
 imprisonment, libel, slander, or malicious arrest or prosecution, or 
 debauching the plaintiff's daughter or servant. But s. 2 of 6 it 7 
 Vict., c. 92 was left unaffected. 
 
 The C. L. P. Act, ISb'O, gave to plaintiffs in replevin the right to 
 pay into Court, by s. 23; and allowed defendants in actions upon 
 common money bonds, and actions for the detention of goods, to do 
 the same thing, by leave of the Court or a judge by s. 25. 
 
 The language of the above rule, " any action .... brought to 
 recover a debt or damages," seems to be wide enough to cover all the 
 cases included in any of the Acts just referred to, except perhaps the 
 case of a plaintiff in replevin. As to the case of rejdevin and any 
 other cases, if any there be, not covered by this rule, the Acts which 
 have hitherto authorized payment into Court will do so still. See 
 ss. 23 and 76 of the Judicature Act, 1873, ante, pp. 57, 100 ; and 
 s. 21 of the Act of 1875, ante, p. 138. 
 
 And the present rule omits all the exceptions contained in s. 70 of 
 flu- *'. L. P. Act, 1852, supra; so that money may be paid into 
 Court for the future, in the cases heretofore excepted. 
 
 The practice as to payment into ( Jourt has hitherto been governed 
 by ss. 70, 71, 72, and 73 of the C. L. P. Act, 1852, and Rules 11, 
 12, and 13 of ];. (;., TT. T., 1853. 
 
 The most materia) change of practice introduced by the present 
 order is that, whereas hitherto money could only be paid into Court 
 at the time of pleading, for the future it may be paid in at any 
 time after service of the writ, down to and including the time of 
 deluding the defence, or afterwards by leave. Heretofore a defen- 
 dant who paid money into Court, if it turned out that the amount 
 paid in was sufficient, has been entitled to costs from the date of 
 the payment into Court. It may be presumed that the same rule 
 will hereafter prevail; and it may, therefore, be of importance to 
 pay money into Court as early as possible. If the money be paid in 
 with leave after defence, it would scon that the defence must be 
 amended. By ss. 70, 72 of the C. L. I'. Act, 1852, though a sole 
 defendant, or all the defendants jointly, could pay into Court as of 
 right, one of several had to obtain leave to do so. The above ride 
 contains no such restriction. 
 
 Questions of great difficulty have hitherto often arisen as to the 
 effect of payment into Court by way of admission, especially where 
 the declaration has contained common money counts. Under the new 
 system of pleading it is probable that these difficulties will not 
 arise.
 
 232 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xxx. 2. Such sum of money shall be paid to the proper 
 inti Court in °ffi cer > who shall give a receipt for the same. If such 
 Lction. payment he made before delivering his defence the de- 
 fendant shall thereupon serve upon the plaintiff a notice 
 that he has paid in such money, and in respect of what 
 claim, in the Form No. 5, in Appendix (B.) hereto. 
 
 Hitherto the money being paid in at the time of pleading, the 
 receipt has been written in the margin of the plea ; s. 72 of C. L. P. 
 Act, 1852. And the notice has been given only by plea. 
 
 3. Money paid into Court as aforesaid may. unless 
 otherwise ordered by a Judge, be paid out to the plaintiff, 
 or to his solicitor, on the written authority of the plaintiff. 
 No affidavit shall be necessary to verify the plaintiff's 
 signature to such written authority unless specially re- 
 quired by the officers of the court. 
 
 This rule is the same in effect with s. 72 of V. L. P. Act, 1852, 
 and Rule 11 of Reg. (Jen. H. T. 1853, with the exception of the 
 words "unless otherwise ordered by a judge," which are new. 
 
 i SL 7> z&( ''' T"be plaintiff, if payment into Courtis made before 
 
 delivering a defence, may within four days after receipt of 
 notice of such payment, or if such payment is first stated 
 in a defence delivered then may before reply, accept the 
 same in satisfaction of the causes of action in respect of 
 which it is paid in ; in which case he shall give notice to 
 the defendant in the Form No. 6 in Appendix (B.) hereto, 
 and shall be at liberty, in case the sum paid in is accepted 
 in satisfaction of the entire cause of action, to tax his 
 costs, and in case of non-payment within forty-eight hours, 
 to sign judgment for his costs so taxed. 
 
 Hitherto by s. 73 of the ('. L. P. Act, 1852, the plaintiff in the 
 case dealt with by the Rule, accepted the sum in satisfaction by his 
 replication. 
 
 Sxxi. ORDER XXXI. 
 
 Discovery 
 
 inspection. Discovery axd Inspection. 
 
 1. The plaintiff may, at the time of delivering his 
 statement of claim, or at any subsequent time not later 
 than the close of the pleadings, and a defendant may, at 
 the time of delivering his defence, or at any subsequent 
 time not later than the close of the pleadings, without 
 any order for that purpose, and either party may at any • u 7 " 
 time, by the leave of the Court or a Judge, deliver interro- 
 gatories in writing for the examination of the opposite
 
 FIRST .SCHEDULE. — RULES OP COURT. 233 
 
 party or parties, or any one or more of such parties, with Order 
 a note at the foot thereof, stating which of such interroga- Discovery 
 tones each of such persons is required to answer : Provided and 
 that no party shall deliver more than one set of interroga- nspe I . lor 
 tories to the same party without an order for that purpose. 
 
 This rule will effect a very material change of practice in the Queen's 
 Bench, Common Pleas, and Exchequer Divisions. In these Courts 
 discovery by interrogatories has hitherto depended on ss. 5 and 52 of 
 the C. L. P. Act, 1854. These sections, as they have been con- 
 strued, allowed interrogatories to be put only by leave of a judge ; 
 and the practice has been not to give leave to interrogate 
 generally, or even to interrogate upon such and such matters, 
 but to settle at chambers the specific questions to be allowed. 
 This practice has worked in a very unsatisfactory manner, for in 
 many cases it is quite impossible to say whether a particular 
 question ought to be answered or not until the answers to the other 
 questions have been seen. And, further, the application had ordi- 
 narily to be based upon an affidavit, both of the party and his 
 attorney, that there was a good cause of action or defence upon the 
 merits. This requirement often wrought injustice ; for in many 
 cases, the very reason why interrogatories are needed is because the 
 validity of the cause of action or defence may depend upon the 
 result of the discovery. 
 
 In the Chancery division too, the changes introduced by this rule 
 will be very material. Interrogatories by a plaintiff have hitherto 
 been an echo of the Bill, covering the whole field covered by the 
 Bill. For the future a party may interrogate at an early stage, and 
 on an extensive scale, if such a course be in the particular case 
 necessary. He may, on the other hand, wait till the pleadings 
 have disclosed how far the parties are really at issue, and limit his 
 interrogatories accordingly. And the next rule, as to the costs of 
 needless interrogatories, may probably be found to exercise a useful 
 check. 
 
 Under the above rule interrogatories will be administered as of 
 right within the periods specified. But this is subject to the right 
 to apply to strike out any question under Rule 5, or to object to 
 answer it under Rule 8 of this Order. 
 
 2. The Court in adjusting the costs of the action shall, 
 at the instance of any party, inquire or cause inquiry to be 
 made into the propriety of exhibiting such interrogatories, 
 
 and if it is the opini if the taxing master or of the 
 
 ('miii or Judge that such interrogatories have been exhi- 
 bited unreasonably, vexatiously, or at improper length, 
 the cost occasioned by the said interrogatories and the 
 answers thereto shall be borne by the party in fault. 
 
 The Taxing Officer is to inquire into the matters referred to in 
 this rule, whether specially ordered or not, and whether applied to 
 further purposes or not ; Additional Rules, post, p. 413. 
 
 3. Interrogatories may be in the Form No. 7 in 
 Appendix (B) hereto, with such variations as circumstances 
 may require.
 
 234 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 xxxi ^ ^ an y P ar ty *° an action be a body corporate or a 
 
 Discovery joint stock company, whether incorporated or not, or any 
 inspection. °tber body of persons, empowered by law to sue or be 
 — sued, whether in its own name or in the name of any 
 officer or other person, any opposite party may apply at 
 chambers for an order allowing him to deliver interroga- 
 tories to any member or officer of such corporation, com- 
 pany, or body, and an order may he made accordingly. 
 
 This rule is borrowed from s. 51 of the C. L. P. Act, 1854. In 
 < 'hancery it has been hitherto necessary to make the officer a party 
 in order to obtain discovery from him, or to file a cross bill. 
 
 5. Any party called upon to answer interrogatories 
 whether by himself ox by any member or officer, may, 
 within four days after service of the interrogatories, apply 
 at chambers to strike out any interrogatory, on the ground 
 that it is scandalous or irrelevant, or is not put bona, fide 
 for the purpose of the action, or that the matter inquired 
 after is not sufficiently material at that stage of the action. 
 or on any other ground. And the Judge, if satisfied that 
 any interrogator}' is objectionable, may order it to be 
 struck out. 
 
 Two modes are provided for objecting to a question : first, by 
 applying to strike it out under this ride ; secondly, by objecting on 
 oath to answer it under Rule 8. It may probably be presumed that 
 in ordinary cases the objection will be required to be taken in the 
 latter mode. See note to Rule 1, ante, p. 233. 
 
 6. Interrogatories shall be answered by affidavit to be 
 filed within ten days, or within such other time as a Judge 
 may allow. 
 
 7. An affidavit in answer to interrogatories shall, unless 
 otherwise ordered by a Judge, if exceeding three folios, be 
 printed, and may be in the Form No. 8 in Appendix (B) 
 hereto, with such variations as circumstances may require. 
 
 Such affidavits have not hitherto been printed in the Common 
 Law Courts. 
 
 In Chancery they have been printed. The printing of such 
 affidavits in Chancery has hitherto been done by the Officers of the 
 < "int. For the future this, like all other printing, will be done by 
 the parties; Additional Rules, Orders I. to Y., post, p. 391, where 
 provisions will be found as to printing, delivery of copies, and costs. 
 
 8. Any objection to answering any interrogatory may 
 taken, and the ground thereof stated in the affidavit. 
 
 See note to Ride 5, ante. 
 
 9. No exceptions shall be taken to any affidavit in 
 answer, but the sufficiency or otherwise of any such
 
 usiness to be referred, to tne umciai icererees 
 nder the; Supreme Court of Judicature Act, 
 fcrftmted among such Official Eeferees 
 y the clerks to the Registrars of the Supreme 
 eery Division, in like manner in all respects 
 
 >so referred tn ,■< ,n vi <v:mcin"- ROimSftl mnwmiteil
 
 OEDEE XXXL— Discovery and Inspection. 
 11. In Order XXXL, Rule 7, of "The Eules of the n 
 Supreme Court," the word "ten" is hereby substituted x 
 tor the word " three " before the word " folios." Rl
 
 FIRST SCHEDULE. — RULES OF COURT. 235 
 
 affidavit objected to as insufficient shall be determined by ° r ^* r . 
 the Court or a Judge on motion or summons. Discovery 
 
 The mode of objecting in Chancery to the sufficiency of an answer inspection. 
 has been by exception. A summary process is substituted by this — 
 
 ride. 
 
 10. If any person interrogated omits to answer, or 
 answers insufficiently, the party interrogating may apply 
 to the Court or a Judge for an order requiring him to 
 answer, or to answer further, as the case may be. And an 
 order may be made requiring him to answer, or answer 
 further, either by affidavit or by viva voce examination, as 
 the Judge may direct. 
 
 As to the former practice in the Common Law Courts, see s. 53 
 of the C. L. P. Act, 1854. As to the practice in Chancery, see 
 note to the last rule. 
 
 11. It shall be lawful for the Court or a Judge al any Z^.%. f4-o 
 time during the pendency therein of any action or pro- 
 ceeding, to order the production by any party thereto, Z6£. 3. <$A4- 
 upon oath, of such of the documents in his possession or /J?y3. 3. 4-23 
 power, relating to any matter in question in such action or 
 proceeding, as the Court or Judge shall think right ; and 
 
 the Court may deal with such documents, when produced, 
 in such manner as shall appear just. 
 
 The earlier rules of this order having dealt with the first branch 
 of discovery, that by interrogatories, Rules 11 to 19, proceed to deal 
 with discovery as it affects documents. 
 
 The subject obviously embraces two parts : first, discovery 
 simply, that is to say, the power of compelling your opponents to 
 disclose- what documents he has in his possession ; secondly, the 
 power of compelling their production. The above rule (which it 
 may be noted is repeated from the original schedule to the Act of 
 1873), appears, from the words " production upon oath," to deal with 
 both branches of the subject ; and it gives very wide powers to the 
 judge. 
 
 The subject of discovery simply is dealt with in Rules 12 and 13. 
 That of production or inspection of documents as of right without 
 1 1m intervention of a judge in Rules 14 to 17. That of production 
 and inspection by order of a judge in Rides 18 and 19. 
 
 12. Any party may, without filing any affidavit, apply 
 to a Judge for an order directing any other party to the 
 action to make discovery on oath of the documents which 
 are or have been in his possession or power, relating to 
 any matter in question in the action. 
 
 The right to discovery of documents has long been enforced in 
 Courts of Equity. In the Common Law Courts it has depended 
 upon s. 50 of the C. I>. P. Act, 1851. That section gave the right 
 to obtain an order for discovery, but only upon an affidavit tracing 
 lome one document, to the production of which the applicant was
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order 
 
 XXXI. 
 
 Discovery 
 
 and 
 
 Inspection. 
 
 entitled, into the possession or power of the opposite party. This 
 often gave rise to difficulty. It has for many years been customary 
 to evade the difficulty by inserting a question as to documents in 
 interrogatories delivered under the 51st section, instead of proceeding 
 under the 50th. The above rule dispenses with any affidavit. 
 
 13. The affidavit to be made by a party against whom 
 such order as is mentioned in the last preceding Rule has 
 In 'i 'ii made, shall specify which, if any, of the documents 
 therein mentioned, he objects to produce, and it may be 
 in the Form No. 9 in Appendix (B) hereto, with such 
 variations as circumstances may require. 
 
 The form provided is the same which has been in use in the Court 
 of Chancery under Regulations, 8th Aug., 1857, 24 ; Morgan's 
 Chancery Acts and Orders, p. Ivii., 1th edit. 
 
 14. Every party to an action or other proceeding shall 
 lie entitled, at any time before or at the hearing thereof, 
 by notice in writing, to give notice to any other party, in 
 whose pleadings or affidavits reference is made to any 
 document, to produce such document for the inspection of 
 the party giving such notice, or of his solicitor, and to 
 permit him or them to take copies thereof ; and any 
 party not complying with such notice shall not afterwards 
 be at liberty to put any such document in evidence on 
 his behalf in such action or proceeding, unless he shall 
 satisfy the Court that such document relates only to his 
 own title, he being a defendant to the action, or that he 
 had some other sufficient cause for not complying with 
 such notice. 
 
 15. Notice to any party to produce any documents 
 referred to in his pleading or affidavits shall be in the 
 Form No. 10 in Appendix (B) hereto. 
 
 By Additional Rules, post, p. 413, no costs of a notice or inspec- 
 tion, under this rule, is to be allowed, unless it is shown to the 
 satisfaction of the Taxing Officer that there was good reason for it. 
 
 1G. The party to whom such notice is given shall, 
 within two days from the receipt of such notice, if all the 
 documents therein referred to have been set forth by him 
 in such affidavit as is mentioned in Ride 13, or if any of 
 ,] the documents referred to in such notice have not been 
 j set forth by him in any such affidavit, then within four 
 days from the receipt of such notice, deliver to the party, 
 giving the same a notice stating a time within three 
 days from the delivery thereof at which the documents, or 
 such of them as he does not object to produce, may be 
 inspected at the office of his solicitor, and stating which 
 (if any) of the documents he objects to produce, and on
 
 FIRST SCHEDULE. — RULES OF COURT. 231 
 
 what ground. Such notice may be in the Form No. 11 in Order 
 Appendix (B) hereto, with such variations as circumstances f^^ery 
 may require. and 
 
 Inspection. 
 
 17. If the party served with notice under Rule 15 
 omits to give such notice of a time for inspection, or 
 objects to give inspection, the party desiring it may apply 
 to a Judge for an order for inspection. 
 
 18. Every application for an order for inspection of docu- 
 ments shall be to a Judge. And except in the case of 
 documents referred to in the pleadings or affidavits of the 
 party against whom the application is made, or disclosed 
 in his affidavit of documents, such application shall be 
 founded upon an affidavit showing of what documents 
 inspection is sought, that the party applying is entitled to 1 1 
 inspect them, and that they are in the possession or power 
 of the other party. 
 
 The power to compel production and inspection of documents is 
 given in very wide terms by Rule 11, ante, p. 235. Courts of 
 Equity have long compelled the production of documents. The 
 Common Law Courts did so to a very limited extent at Common 
 Law, but mainly under 14 & 15 "Vict., c. 99, s. 6. This Act 
 authorises inspection to be granted in an action or proceeding in all 
 cases in which it might be obtained by proceedings in Equity. There 
 seems to be nothing in these rides to alter the rules hitherto in force 
 as to what documents any party is entitled to inspect. 
 
 By s. 66 of the Act of 1873, it may be ordered that books or 
 documents be produced at the office of any district registry. 
 
 As to the mode of taking copies of documents, and the costs to 
 be paid, see Additional Rules, post, pp. 392, 403. ' 
 
 19. If the party from whom discovery of any kind or 
 inspection is sought objects to the same, or any part 
 thereof, the Court or a, Judge may, if satisfied that the right 
 to the discovery or inspection sought depends on the deter- 
 mination of any issue or question in dispute in the action, 
 or that for any other reason it is desirable that any issue or 
 question in dispute in the action should lie determined 
 before deciding upon the right to the discovery or inspec- 
 tion, order that such issue or question be determined first, 
 and reserve the question as to the discovery or inspection. 
 
 It often happens that one party to an action alleges some fact, 
 such as partnership or agency, for example, which the other denies. 
 If the fact alleged were admitted to be true, it would clearly entitle 
 the party alleging it to discovery. If it were admitted to be untrue 
 he would as clearly be disentitled t<> it. By dealing with the question 
 of discovery either way before the other question, on the solution of 
 which the right to discovery really depends, injustice may be done. 
 The difficulty has been felt both by Common Law and Equity 
 Judges. It is probable that in many cases the above ride will be 
 found convenient. Compare Order XXXVI. , Rule 6, post, p. 250.
 
 238 
 
 SUPREME I OURT OP JUDICATURE ACT, 1875. 
 
 Order 
 XXXI. 
 
 Discovery 
 
 and 
 
 Inspection. 
 
 20. If any party fails to comply with any order to 
 answer interrogatories, or for discovery or inspection of 
 documents, he shall be liable to attachment. He shall 
 also, if a plaintiff, be liable to have his action dismissed 
 for want of prosecution, and, if a defendant, to have his 
 I defence, if any, struck out, and to be placed in the same 
 I position as if he had not defended, and the party interro- 
 gating may apply to the Court or a Judge for an order to 
 the effect, and an order may be made accordingly. 
 
 The ordinary method of enforcing an order for discovery has been 
 by attachment ; but to procure an attachment is often tedious, 
 troublesome, and expensive, and not always efficacious. In the 
 Common Law Courts, the want of some readier method of com- 
 pulsion has been much felt. In the case of plaintiffs, the Court 
 would stay proceedings till they answered ; but there was no corre- 
 sponding method of dealing with defendants. The present rule 
 affords an easy method of compulsion, applicable to most of the 
 wimple cases in which it was most needed. 
 
 21. Service of an order for discovery or inspection made 
 against any party on his solicitor shall be sufficient service 
 to found an application for an attachment for disobedience 
 to the order. But the party against whom the applica- 
 tion for an attachment is made may show in answer to the 
 application that he has Lad no notice or knowledge of 
 the order. 
 
 22. A solicitor upon whom an order against any party 
 for discovery or inspection is served under the last rule. 
 who neglects without reasonable excuse to give notice 
 thereof to his client, shall be liable to attachment. 
 
 23. Any party may, at the trial of an action or issue, 
 use in evidence any one or more of the answers of the 
 opposite party to interrogatories without putting in the 
 others : Provided always, that in such case the Judge may 
 look at the whole of the answers, and if he shall be of 
 opinion that any other of them are so connected with 
 those put in that the last-mentioned answers ought not to 
 be used without them, lie may direct them to be put in. 
 
 In the Common Law Courts no one has been able to use any 
 answer of his opponent to interrogatories without using all of them. 
 The consequence has been that what might be one of the great uses 
 of interrogatories, viz., the saving of expense by proving by admission 
 the facts not really in dispute, has been prevented ; for the answers 
 containing such admissions have stood side by side with others, 
 which the party who has interrogated could not safely make a part 
 of his case.
 
 FIRST SCHEDULE. RULES OF COURT. 239 
 
 OEDEE XXXII. Order 
 
 XXXli. 
 
 Admissions. Admissions. 
 
 1. Any party to an action may give notice, by his own 
 statement or otherwise, that he admits the truth of the 
 whole or any part of the case stated or referred to in the 
 statement of claim, defence-, or reply of any other party. 
 
 In the first report of the Judicature Commission, p. 14, the Com- 
 missioners say : — " We think that a similar practice (to that as to 
 admission of documents) might with advantage be extended to the 
 admission of certain facts as well as documents ; and therefore we 
 recommend that if it be made to appear to the judge, at or before 
 the trial of any case, that one of the parties was, a reasonable time 
 before the trial, required in writing to admit any specific fact, and 
 without reasonable cause refused to do so, the judge should either 
 disallow to such party, or order him to pay (as the case may be) the 
 costs incurred in consequence of such refusal." The present rule does 
 not carry out this recommendation. It allows parties to make admis- 
 sions of facts, but it does not apply to facts generally the system 
 of notice to admit, embodied, as to documents, in the following 
 rules. 
 
 2. Either party may call upon the other party to admit 
 any document, saving all just exceptions ; and hi case of 
 refusal or neglect to admit, after such notice, the costs of 
 proving any such document shall be paid by the party so 
 neglecting or refusing, whatever the residt of the action 
 may be, unless at the hearing or trial the Court certify 
 that the refusal to admit was reasonable ; and no costs of 
 proving any document shall be allowed unless such notice 
 be given, except where the omission to give the notice is, 
 in the opinion of the taxing officer, a saving of expense. 
 
 This and the two following rules correspond to ss. 117 and 118 of 
 the < !. L. P. Act, 1852, and Rule 29 of It. G-. H T. 1853 ; and as to 
 Chancery to s. 7, of 21 & 22 Vict. c. 27. 
 
 3. A notice to admit documents may be in the Form 
 No. 12 in Appendix (I!) hereto. 
 
 4. An affidavit of tins solicitor or his clerk, of the due 
 signature of any admissions made in pursuance of any 
 notice to admit documents, and annexed to the affidavit, 
 shall be sufficient evidence of such admissions. 
 
 OEDEE XXXIII. xxxm. 
 
 Inquiries 
 INQUIRIES AND ACCOUNTS. and 
 
 Accounts. 
 
 The Court or a Judge may, at any stage of the proceedings /r ,~c\ (?S^ 
 
 a cause of matte]-, direct any necessary inquiries or " '' 
 
 3 Culo . /o&
 
 MO 
 
 SUPREME COURT <>!' JUDICATURE ACT, 1875. 
 
 ( )rder 
 XXXIII. 
 
 'Inquiries 
 
 and 
 
 Accounts. 
 
 accounts to be made or taken, notwithstanding that ii 
 may appear that there is sonic special or farther relief 
 sought for or some special issue to be tried, as to which it 
 may be proper that the cause or matter should proceed in 
 the ordinary manner. 
 
 As to the various modes in which questions in an action may be 
 tried, see Order XXXVI., Ride 2, post, p. 248, and notes thereto. 
 
 By s. GG of the Judicature Act, 1873, ante, p. 90: — 
 
 It shall be lawful for the Court, or any judge of the 
 division to which any cause or matter pending in the said 
 High Court is assigned, if if shall be thought fit, to order 
 flint any boohs or documents may be produced, or any 
 accounts taken or inquiries made, in tin- office of or by any 
 such <list rirt registrar as aforesaid; and in any such case the 
 district registrar shall proceed to carry all such directions 
 into effect in the manner prescribed ; and in any case in 
 which any such accounts or inquiries shall have been directed, 
 to be taJcen or made by any district registrar, the report in 
 writing of such 'list rid registrar as to the result of such 
 accounts or inquiries may be acted upon by the Court, as to 
 the Court shall seem lit. 
 
 Order 
 XXXIV. 
 Questions 
 of Law. 
 
 ORDEK XXXIV. 
 
 Questions of Law. 
 
 1. The parties may, after the writ of summons has 
 been issued, concur in stating the questions of law arising 
 in the action in the form of a special case for the opinion of 
 the Court. Every such special case shall be divided into 
 paragraphs numbered consecutively, and shall concisely 
 state such facts and documents as may be necessary to 
 enable the Court to decide the questions raised thereby. 
 Upon the argument of such case the Court and the parties 
 shall be at liberty to refer to the whole contents of such 
 documents, and the Court shall be at liberty to draw from 
 the facts and documents stated in any such special case 
 any inference, whether of fact or law, which might have 
 been drawn therefrom if proved at a trial. 
 
 The power of stating a special case in the Common Law Courts 
 
 has hitherto depended upon 3 & •! Will. I, c. )■_', s. 25, and ss. 46, 
 47, and 179 of the C. L. P. Act, 1852. This right has been con- 
 stantly exercised ; the ordinary practice being that, if the parties 
 cannot agree upon the statement of the case, it is settled by an 
 arbitrator. In Chancery, the power to proceed by special case has 
 depended on 13 and 14 Vict., c. 35.
 
 FIRST SCHEDULE. Bl LES OF COl i: I. - I 1 
 
 The provision enabling the Court to refer to documents is new in Order 
 the Common Law Courts; hitherto the Court has been confined XXXIV. • 
 within the four corners of the ease, so that it has often been neces- Questions of 
 sary to set out in the case, or by way of appendix to the case, '_ 
 documents, only a part of which is likely to prove material. The 
 power to draw inferences of fact has also not existed in Common 
 Law Courts as of right, though it has commonly been specially 
 reserved to the Court in well drawn eases. In cases stated in the 
 Court of Chancery, the Court has hail both these powers under ss. 
 cS and 1 4 of 1:3 and 14 Vict., c. 35. 
 
 2. If it appear to the Court or a Judge, either from the 
 statement of claim or defence, or reply or otherw , is ,e. that/^-^ 
 there is in any action a question of law, which it would he <* 
 convenient to have decided before any evidence is given or 
 any question or issue of fact is tried, or before any refer- 
 ence is made to a referee or an arbitrator, the Court or 
 Judge may make an order accordingly, and may direct such 
 question of law to be raised for the opinion of the Court, 
 either by special case or in such other manner as the 
 ('mill, or Judge may deem expedient, and all such further 
 proceedings as the decision id' such question of law may 
 render unnecessary may thereupon be stayed. 
 
 The last rule enables the parties to state a case by consent. The 
 present rule enables a judge to raise a question of law by special case 
 or otherwise, without reference to consent. 
 
 3. Every special case shall be printed by the plaintiff, 
 and signed by the several parties or their solicitors, ami 
 shall be filed by the plaintiff. Printed copies for the use 
 of tlie Judges shall lie delivered by the plaintiff. 
 
 Special eases in the Common Law Courts have not necessarily 
 been printed hitherto. This rule is extended to special eases stated 
 under 13 and 14 Vict., c. 35, by Additional Rides ; Order IV.. pout , 
 ]>. 391. As to printing, delivery of copies, and costs, see Additional 
 Rules," Order V.,post, p. 392. 
 
 4. No special ease in an action to which a married 
 woman, infant, or person of unsound mind is a party shall 
 be set down for argument without leave of the Court or a 
 Judge, the application for which must be supported by suf- 
 ficient evidence that the statements contained in such special 
 case, SO I'av as the same affect the interest, of such married 
 woman, infant, or person of unsound mind, are true. 
 
 5. Either party may enter a special ease for argument 
 by delivering to the proper officer a, memorandum of entry, 
 in the Form No. 13 in Appendix (B) hereto, and also it 
 any married woman, infant, or person of unsound mind be 
 a party to the action, producing a copy of the order giving 
 leave to enter the same for argument. 
 
 M
 
 242 SUPREME COURT OF JUDICATUBE ACT, 1875. 
 
 o«te OEDEE XXXV. 
 
 Pioceedings 
 
 in District EROCEEDINGS IN DISTRICT EEGISTRIES. 
 
 Registries. 
 
 1. Where an action proceeds in the district registry 
 all proceedings, except where by these rules it is otherwise 
 provided, or the Court or a Judge shall otherwise order, 
 shall he taken in the district registry, down to and including 
 the entry for trial of the action or issues therein ; or if the 
 plaintiff is entitled to enter final judgment or to obtain an 
 order for an accoimt by reason of the default of the 
 defendant, then down to and including such judgment or 
 order ; and such judgment or order as last aforesaid shall 
 be entered in the district registry in the proper book, in 
 the same manner as a like judgment or order in an action 
 proceeding hi London would be entered in London. Wliere 
 the writ of summons is issued out of a district registry 
 and the plaintiff is entitled to enter interlocutory judgment 
 under Order XIII., Evde 6, or where the action proceeds 
 in the district registry and the plaintiff is entitled to enter 
 interlocutory judgment under Order XXIX., Bide 4 or 5, 
 in either case such interlocutory judgment, and, when 
 damages shall have been assessed, final judgment shall be 
 entered in the district registry, unless the Court or a Judge 
 shall otherwise order. 
 
 Where an action proceeds in the district registry, 
 final judgment shall be entered hi the district registry, 
 unless the Judge at the trial or the Court or a Judge shall 
 otherwise order. 
 
 The Judicature Act, 1873, enacts as follows : — 
 s. CO. Anil whereas it is expedient to facilitate tin 1 pro- 
 secution in country districts of such proceedings as may h 
 more speedily, cheaply, and conveniently carried <>n therein 
 it slmll belaioful for Her M<<j< sty, by Order in Council, 
 from time /<> time /<> direct that there shall In- distric 
 registrars in such places as shall be in such order men 
 tioned for districts l<> be thereby defined, from which writ 
 of summons for the commencement of action* in tin- Higt 
 Court of Justin- maybe issued, and in which such pr 
 ceedingsmay be taken and recorded as are hereinafter /n> 
 tioned ; and Her Majesty may thereby appointt \d thot ai 
 registrar of any County Court, or on;/ r<<ji*tror <,r />* 
 thonotary or <li*lri<-l protJwnotary "f any local Cou 
 whose jurisdiction is hereby transferred /<> tin- said Hig 
 Court of Justice, or from which an appeal is hereby, gim 
 to the said Court of Appeal, or any person who, horn,
 
 ^oaa rorcrrcx* v „ „„„ . ^j „._, -- -rr ■*""■ 
 
 Act of the 15th and 16th Vict., cap. 80, section 
 eted to he distributed by the second of the 
 ed General Orders of /the Court of Chancery, 
 en an Order shall have been made referring 
 ess to the Official/lteferee in rotation, such 
 a duplicate ofyft, shall be produced to the 
 Clerk, whose duty it is to make such distribu- 
 oresaid ; ana such clerk shall (except in the 
 ded for b*y Parle 29c of this Order) endorse 
 note specifying the name of the Official lieferee 
 . to whom such business is to be referred ; and 
 so endorsed, shall be a sufficient authority for 
 1 Referee top*uceed with the business so re- 
 
 ! two last preceding Rules of this Order are not 
 c with the power of tin; ( 'oiirt, or of the Judge 
 •is, to direct or transfer a reference to any one 
 
 ii oi the said Official Referees, where it appears 
 
 urt or the Judgij, to be expedient; but every 
 
 mce or transfer -hull be recorded in the manner 
 
 in bide, 2 of the second of the said Consoli- 
 
 r.-d i Orders, and a note to that effect be endorsed 
 ler of Reference or transfer; and in case any
 
 ORDER XXXV. — Proceedings in District Registries. 
 
 12. Order XXXV., Rule 1, of "The Rules of the 0rder 
 Supreme Court" is hereby annulled, and the following xxxv. 
 shall stand in lieu thereof : — 
 
 1 . Where an action proceeds in the District Registry- 
 all proceedings, except where by any of the rules of the 
 Supreme Court it is otherwise provided, or the Court or 
 a Judge shall otherwise order, shall be taken in the Dis- 
 trict Registry, down to and including final judgment, and 
 every final judgment and every order for an account by 
 reason of the default of the defendant or by consent 
 shall be entered in the District Registry in the proper 
 book, in the same manner as a like judgment or order in 
 an action proceeding in London would be entered in 
 London. 
 
 Where the writ of summons is issued out of a District 
 Registry and the plaintiff is entitled to enter interlocutory 
 judgment under Order XIII. , Rule 6, or where the action 
 proceeds in the District Registry and the plaintiff is 
 entitled to enter interlocutory judgment under Order 
 XXIX., Rule 4 or 5, in either case such interlocutory 
 judgment, and when damages shall have been assessed, 
 
 final judgment shall be entered in the District Registry, 
 unless the Court or Judge shall otherwise order. 
 
 Where an action proceeds in the District Registry, 
 final judgment shall be entered in such Registry, unless 
 the Judge at the trial or the Court or a Judge shall other- 
 wise order. 
 
 Actions in the Queen's Bench, Common Pleas, and 
 Exchequer Divisions shall be entered for trial with the 
 Associates and not in the District Registries.
 
 FIRST SCHEDULE. — RULES OP COURT. 243 
 
 been a district registrar of the Court of Probate, or of the Order 
 Admiralty Court, shall under this Act become and be a proceedings 
 district registrar of the said High Court of Justice, or j£ District 
 ■irlio shall hereafter be appointed such district registrar, v '-^ Ies - 
 shall and may be a district registrar of the said High 
 Court for the purpose of issuing such writs as aforesaid, 
 and having such proceedings taken before him as are 
 hereinafter mentioned. This section shall come into 
 operation immediately upon the passing of this Act, 
 
 S. 13 of the Act of 1S75 amends this section by adding : — 
 
 Where any such order has been made t two 'persons 'may, 
 if required, be appointed to perform the duties of district 
 registrar in any district named in the order, and such per- 
 sons shall be deemed to be joint district registrar*, and shall 
 perform- the said duties in such manner as mag from trine 
 tn time be directed by the said, order, or any order in 
 council amending the same. 
 
 Moreover, the registrar of any inferior Court of Record 
 having jurisdiction in any part of any district defined by 
 sue// order (oflar than a County Court) shall, if ap- 
 pointed, by Her Majesty, tie qualified to be a district 
 registrar for the said district, or for any and such part 
 thereof as may be directed toy such order, or any order 
 amending the same. 
 
 Every district registrar shall be deemed to be an officer 
 of the Supreme Court, and be subject accordingly to the 
 jurisdiction of such court, and of the divisions thereof. 
 
 s. 61. In every such, district registry such seal shall be used 
 as the Lord Chancellor shall from time to time, either 
 Injure or after the time fixed for the commencement of 
 litis Act, direct, which seal shall be impressed on every 
 writ ami oilier document issued, out of or filed in such 
 district registry, and all such writs and documents, and all 
 exemplifications and copies /hereof, purporting to be 
 
 Sealed with the seat of any SUCh district registry, shall in 
 
 all parts of the United Kingdom he received in evidence 
 without further proof thereof. 
 
 B. 02. All such district registrars ehatl have power to 
 administer oaths and perform such other duties in respect of 
 any proceedings funding in the said High Court of Justice 
 or in the said Court of Appeal as may he assigned to /hem 
 from, time to time by rules of court, or by any special 
 order of the Court. 
 
 m2
 
 Registries. 
 
 244 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order s. 64. Subject to the rules of court in force for tlie time 
 
 Proceedings ohing, writs of summons for the commencement of action* 
 in District ( n {lie H'tqli Court of Justin- shall be issued bti the distrief 
 registrars when thereunto required; and unless any order 
 to the contrary shall be made by the High Court of Justice, 
 or by any judge thereof all such further proceedings, 
 including proceedings for the arrest or detention of a ship, 
 her tackle, apparel, furniture, cargo, or freight, as may 
 and ought to be taken by the respective parties to such 
 action in the said High Court down to and including entry 
 for trial, or (if the plaintiff is entitled to sign final judg- 
 ment or to obtain art order fur an account by reason of the 
 'non-appearance of the defendant) down to and including 
 final judgment, or an order for an account, may be taken 
 before the district registrar, and recorded in the distrief, 
 registry, in such manner as may be prescribed by rules of 
 court ; and all such other proceedings in any such net ion 
 as may be prescribed by rules of Court shall be taken and 
 if necessary may be recorded in the same district registry. 
 
 s. 66. It shall be lawful for the Court, or any judge of 
 the division to which any cause or /natter pending in the 
 said High Court, is assigned, if it shall be thought fit, to 
 order that any books or documents may be produced, or 
 any accounts /"ken or inquiries made, in the office of or by 
 any such district registrar as aforesaid ; and in any such 
 case the district registrar shall proceed to carry all such 
 directions into effect in the manner prescribed ; and in any 
 case in which any such accounts or inquiries shall have 
 been directed to be taken or made by arty district registrar, 
 the report in writing of such district registrar as to the 
 result of such accounts or inquiries may be ceded upon by 
 the Court, as to the Court shall seem ft. 
 
 As to the districts of District Registrars, see Order in Council, 
 12th Aug., 1875, post, p. 418. 
 
 As to when an action is to proceed in the district registry, see 
 Order V., Rule 1, ante, p. 168, and notes thereto, and Order XII., 
 ante, p. 181, where see also as to the issue of writs and the entrance 
 of appearances in district registries. 
 
 2. Subject to the foregoing rules, where an action 
 proceeds in the district registry the judgment and all such 
 orders therein as require to be entered, except orders made 
 by the district registrar under the authority and jurisdic- 
 tion vested in him under these rules, shall be entered in 
 London, and an office copy of every judgment and order
 
 FIRST SCHEDULE. RULES OP COURT. 245 
 
 so entered shall be transmitted to the district registry to Order 
 be filed with the proceedings in the action. Proceedings 
 
 in District 
 
 3. Where an action proceeds in the district registry all egls ^ les - 
 writs of execution for enforcing any judgment or order 
 therein shall issue from the district registry, unless the 
 Court or a Judge shall otherwise direct. Where final 
 judgment is entered in the district registry costs shall be 
 
 taxed in such registry unless the Court or a Judge shall 
 otherwise order. 
 
 4. Where an action proceeds in a district registry the 
 district registrar may exercise all such authority and 
 jurisdiction in respect of the action as may be exercised 
 by a Judge at chambers, except such as by these Rides a 
 Master of the Queen's Bench, Common Pleas, or Exchequer 
 Divisions is precluded from exercising. 
 
 As to the jurisdiction of a master at chambers, see Order LIV., 
 Rule 2, post, p. 297. 
 
 5. Every application to a district registrar shall be 
 made in the same manner in which applications at cham- 
 bers are directed to be made by these Rules. 
 
 See Order LIV., post, p. 297. 
 
 6. If any matter appears to the district registrar proper 
 f( ir the decision of a Judge, the registrar may refer the 
 same to a Judge, and the Judge may either dispose of the 
 matter or refer the same back to the registrar with such 
 directions as he may think fit. 
 
 This and the three following rules assimilate, in the matters to 
 which they refer, proceedings before a district registrar and before a 
 master. See Order LIV., Rules 3, 4, 5, post, p. 298. 
 
 7. Any person affected by any order or decision of a 
 district registrar may appeal to a Judge. Such appeal 
 may be made notwithstanding that the order or decision 
 was in respect of a proceeding or matter as to which the 
 district registrar had jurisdiction only by consent. Such 
 appeal shall be by summons within four days after the 
 decision complained of, or such further time as may be 
 allowed by a Judge or the registrar. 
 
 8. Aa appeal from a district registrar shall be no stay of 
 proceedings unless so ordered by a Judge or the registrar. 
 
 9. Every district registrar and other officer of a district 
 registry shall be subject to the orders and directions of
 
 246 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order the Court or a Judge as fully as any other officer of the 
 Proceedings Coiu't, and every proceeding in a district registry shall he 
 in District subject to the control of the Court or a Judge, as fully as 
 egismes. a j^. Q p rocee( ji n g jjj London. 
 
 10. Every reference to a Judge hy or appeal to a Judge 
 from a district registrar in any action in the Chancery 
 Division shall he to the Judge to whom the action is 
 assigned. 
 
 11. In any action which would, under the foregoing 
 rules, proceed in the district registry, any defendant may 
 remove the action from the district registry as of right hi 
 the cases, and within the times, following : 
 
 "Where the writ is specially indorsed under Order III., 
 Ride G, and the plaintiff does not within four days 
 after the appearance of such defendant give notice of 
 an application for an order against him under Order 
 XIV • then such defendant may remove the action as 
 of right at any time after the expiration of such four 
 days, and before delivering a defence, and before the 
 expiration of the time for doing so : 
 
 Where the writ is specially indorsed and the plaintiff has 
 made such application as in the last paragraph men- 
 tioned, and the defendant has obtained leave to defend 
 in manner provided by Order XIV ; then such 
 defendant may remove the action as of right at any 
 time after the order giving hini leave to defend, and 
 before delivering a defence and before the expiration 
 of the time for doing so : 
 
 Where the writ is not specially indorsed any defendant 
 may remove the action as of right at any time after 
 appearance, and before delivering a defence, and before 
 the expiration of the time for doing so. 
 
 12. Any defendant desirous to remove an action as of 
 right under the last preceding rule may do so by serving 
 upon the other parties to the action, and delivering to the 
 district registrar, a notice, signed by himself or Ms solicitor, 
 to the effect that he desires the action to be removed to 
 London, and the action shall be removed accordingly: Pro- 
 vided, that if the Court or a Judge shall be satisfied that 
 the defendant giving such notice is a merely formal defen- 
 dant, or has no substantial cause to interfere in the conduct 
 of the action, such Court or Judge may cider that the 
 action may proceed in the district registry notwithstanding 
 such notice.
 
 FIRST SCHEDULE. — RULES OF COURT. 247 
 
 13. In any case not provided for by the last two pre- Order 
 
 t • - XXXV 
 
 cedmg rules, any party to an action proceeding in a Proceedings 
 district registry may apply to the Court or a Judge, or to in District 
 the district registrar, for an order to remove the action egls _^ ies> - 
 from the district registry to London, and such Court, Judge, 
 or registrar, may make an order accordingly, if satisfied 
 that there is sufficient reason for doing so, upon such 
 terms, if any, as shall seem just. Any party to an action 
 proceeding in London may apply to the Court or a Judge 
 for an order to remove the action from London to any 
 district registry, and such Court or Judge may make an 
 order accordingly, if satisfied that there is sufficient reason 
 for doing so, upon such terms, if any, as shall seem just. 
 
 By the Judicature Act, 1873 : — 
 
 s. 65. Aug party to an action in which a writ oj summons 
 shall have been issued from any such, district registry shall 
 be at liberty at any time to apply, in such manner as shall 
 be prescribed by rule* <>/ court, to the said High Court, or 
 to a judge in chambers of the division of the said High 
 Court to which the action may be assigned, to remove the 
 proceedings from such district registry into the proper office 
 of thr. said High Court : and the Court or judge may, if 
 it be thought jit, grunt such application, and in such case 
 the proceedings and such original documents, if any, asmay 
 he filed therein shall upon receipt of such order be trans- 
 mitted by the district registrar to the proper office of the 
 said High Court, and the said action shall thenceforth 
 proceed in the said High Court in the same manner as if 
 it had been originally commenced by a writ of summons 
 issued out of the proper office in London; or the Court or 
 judge, if it be tliought right, /nag thereupon direct that 
 the proceedings mug continue to be taken in such, district 
 registry. 
 
 The power to remove as < >f right given by Rule 13 is limited to 
 defendants, and can only be exercised within the periods defined. The 
 power given by this section to apply to a judge, and by the above 
 rule, to apply to the district registrar, for an order of removal is 
 
 ial. 
 
 14. Whenever any proceedings are removed from the 
 i regi try to London, the district registrar shall 
 transmit to the proper officer of the High Court of Jus- 
 lice ;ill original documents (if any) filed in the district 
 registry, and a copy of all entries in the hooks of the 
 district registry, of the proceedings in the action.
 
 248 SUPREME COURT OF JUDICATURE ACT, 1875, 
 
 Order ORDER XXXVI, 
 
 XXXVI. 
 
 Trial. Trial. 
 
 1. There shall he no local venue for the trial of any 
 action, but when the plaintiff proposes to have the action 
 tried elsewhere than in Middlesex, he shall in his state- 
 ment of claim name the county or place in which he pro- 
 poses that the action shall be tried, and the action shall, 
 unless a Judge, otherwise orders, be tried in the county or 
 place so named. Where no place of trial is named in the 
 statement of claim, the place of trial shall, unless a Judge 
 otherwise orders, be the comity of Middlesex. Any order 
 of a Judge, as to such place of trial, may be discharged or 
 varied by a Divisional Court of the High Court. 
 
 Hitherto Common Law actions have been either local, in which 
 the venue could only be laid in the county in which the cause of action 
 arose, though the trial might be ordered to take place elsewhere 
 (1 Chitty's Archbold, p. 307, 11th edit.) ; or transitory, in which the 
 plaintiff might lay his venue where he pleased, subject to the power 
 of the Court or a judge to order it to be changed. 
 
 The practice as to changing the venue hitherto has been that either 
 party might apply for an order for that purpose. The plaintiff, if the 
 application was his, must show reasonable ground for the change ; 
 2 Chitty's Archbold, p. 1345, 4th edit. If the application was the 
 defendant's, he had to show distinctly a preponderance of convenience 
 in favour of trying where he proposed, instead of where the venue 
 was laid ; Church v. Bamett, Law Rep. 6 C. P. 116. See the 
 cases fully collected in Day's C. L. P. Acts, pp. 93 et seq., 4th edit. 
 
 The words of the above ride seem to leave the matter entirely in 
 the discretion of the judge, to be exercised according to the balance 
 of convenience. 
 
 2. Actions shall be tried ami heard either before a Judge 
 or Judges, or before a Judge sitting- with assessors, or before 
 a Judge and Jiuy, or before an official or special Referee, 
 with or without assessors. 
 
 This rule speaks of actions being tried and heard. The term trial 
 alone is used throughout the following rides. 
 
 It may be convenient to state here, in a summary form, the effect 
 of the principal provisions of the Acts and Pules relating to the 
 mode of trying questions of fact. 
 The trial of an action may be : — 
 Before a judge or judges ; 
 Before a judge with assessors (See rule 28, post, p. 256, 
 
 and note thereto) ; 
 Before a judge (i.e., a single judge, unless a trial before 
 several be specially ordered. Rule 7. post, p. 250,) 
 with a jury ; 
 Before an official referee (See rules 30, et seq., post, p. 256, 
 
 and note thereto) ; 
 Before a special referee (See rules 30, et seq., post, p. 256, and 
 
 note thereto) ; 
 Before an official or spi cial ref< ree with assessors. (See rule 
 28, post, p. 256, and note thereto) 
 
 St* /j./y? * * A. fa £. pr
 
 FIRST SCHEDULE. RULES OF COURT. 249 
 
 The plaintiff can select the place of trial by naming it in his Order 
 claim ; but the Court or a judge may change it. Rule 1, ante. XXXVI. 
 
 TV' plaintiff may likewise choose the mode of trial by giving Trial, 
 notice of trial by one of the modes mentioned. Rule 3, post. 
 
 If the plaintiff fails to do so within six weeks after the close of 
 the pleading, the defendant may give notice of trial and choose the 
 mode. Rule 4, post. 
 
 The 2>arty to whom notice of trial by any mode, other than a 
 jury, is given, may, within four days, by notice, require that the 
 issues of fact be tried by a jury. Rules 3 and 4, p>ost. 
 
 If neither party has required the issues of fact to be tried by 
 a jury, the judge may order the trial to be by any other mode than 
 that of which notice has been given. Rule 5, post. 
 
 A judge may order different questions of fact to be tried in dif- 
 ferent ways, and may direct the order in which and the place at 
 which the several issues of fact shall be tried. Rule 6, post. 
 
 A judge may order any question of law to be determined before 
 the trial of questions of fact. Order XXXIV., Rule 2. 
 
 A judge may direct the trial without a jury of any question which 
 (•null I hitherto, without consent, be tried without a jury. Rule 26, post. 
 
 A judge, either before or at the trial, may order an issue of fact 
 to lie tried by a jury. Rule 27, 2 : >ost. 
 
 Subject to these rules, where a question of fact, or partly of law 
 and partly of fact, is in issue, any party may by leave of a judge 
 require the issue to be tried at the assizes or the Middlesex or 
 London sittings ; s. 29 of the Judicature Act, 1873, ante, p. 69. The 
 same thing may lie done by consent, though no facts are in issue ; 
 ibid. 
 
 A judge may at any time order any question of fact, or mixed law 
 and fact, to be tried at the assizes or at the sittings in London or 
 Middlesex. Rule 29,2^ost. 
 
 A judge may at any stage of the action direct any necessary 
 inquiries or account to be made or taken, and that either in London 
 or in a district registry. Order XXXIII. ; s. 66 of the Judicature 
 Act, 1873, ante, p. 90. 
 
 A judge may, subject to the rules the effect of which has been 
 briefly stated, refer any question for inquiry and report to an official 
 it special referee. See s. 56 of the Act of 1873, and Rules 30, ct 
 >"/., 'post, )>. 256, and notes thereto. 
 
 A judge may by consent, or where a prolonged investigation of 
 documents or accounts or any scientific or local investigation is 
 required, may without consent, order any question of fact or any 
 question <>f account to be tried before an official or special referee; 
 s. 57 of the Act of 1873, ante, p. 87. See rules 30, etseq., post, p. 256, 
 and note. 
 
 3. Subject 1<i tlic provisions of the following Rules, the j, j%. 
 
 plaintiff may, with his reply, or at anytime after the close 
 of the pleadings, give notice of trial of the action, and 
 thereby specify one of the modes mentioned in Rule 2; 
 and the defendant may, upon giving notice within four 
 days from the time of the service of the notice of trial, or 
 within such extruded time as a Court or Judge may allow, 
 to the effect that he desires to have the issues of fact tried 
 before a Judge and Jury, be entitled to have the same so 
 iv\,-il.2.aC.'2.f?J;4e / 4 i 6fy 
 
 M 5
 
 250 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 J«. %^& 2.6: ^-3^..^. /2.J? 
 Order 4. Subject to the provisions of the following Eules, if 
 
 X THai. 1 ' the plaintiff does not within six weeks after the close of 
 — the pleadings, or within such extended time as a Court or 
 Judge may allow, give notice of trial, the defendant may, 
 before notice of trial given by the plaintiff, give notice of 
 trial, and thereby specify one of the modes mentioned hi 
 Ride 2 ; and in such case the plaintiff, on giving notice 
 within the time fixed by Ride 3 that he desires to have 
 the issues of fact tried before a Judge and Jury, be entitled 
 to have the same so tried. 
 
 5. In any case in which neither the plaintiff nor defen- 
 dant has given notice under the preceding Eules that he 
 desires to have the issues of fact tried before a Judge and 
 Jury, or in any case within the 57th section of the Act, if 
 the plaintiff or defendant desires to have the action tried 
 in any other mode than that specified in the notice of 
 trial, he shall apply to the Court or a Judge for an order to 
 that effect, within four days from the time of the service 
 of the notice of trial, or within such extended time as a 
 Court or Judge may allow;. 
 
 6. Subject to the provisions of the preceding Eules, the 
 Court or a Judge may, hi any action at any time or fri im 
 time to time, order that different cpiestions of fact arising 
 therein be tried by different modes of trial, or that one or 
 more questions of fact be tried before the others, and may 
 appoint the place or places for such trial or trials, and in 
 all cases may order that cue or more issues of fact be tried 
 before any other or others! 
 
 As to ordering a question of law to he argued before trying the 
 facts, see Order XXXIV., Fade 2, ante, p. 240. 
 
 7. Every trial of any cpiestion or issue of fact by a jury 
 shall be held before a single Judge, uuless such trial be 
 specially ordered to be held before two or more Judges. 
 
 8. Notice of trial shall state whether it is for the trial 
 of the action or of issues therein ; and in actions in the 
 Queen's Bench, Common Eleas, and Exchequer Divisions, 
 the place and day for which it is entered for trial. It 
 may be in the Eorm ]S"o. 14 in Appendix (B), with such 
 variations as circumstances may require. 
 
 9. Ten days' notice of trial .shall be given, unless the 
 party to whom it is given has consented to take short
 
 , defendant may arf '™SS or for to costs «,L 
 discontinued.
 
 ORDER XXXVI.— Trial. 7~<«^ fsy& 
 
 Order 13. The Defendant, instead of giving notice of trial, 
 
 kuie 4 a. ' ma y a Pply to the Court or Judge to dismiss the action for 
 want of prosecution ; and on the hearing of such appli- 
 cation, the Court or a Judge may order the action to he 
 dismissed accordingly, or may make such other order, and 
 on such terms, as to the Court or Judge may seem just.
 
 ^/t/fc^/-r ~ ^~—$- i*-^*^/*^ 
 
 FIRST SCHEDULE. — RULES OF COURT. 251 
 
 notice of trial ; and shall be sufficient in all cases, unless Order 
 otherwise ordered by the Court or a Judge. Short notice X ^^ L 
 of trial shall be four days' notice. 
 
 These are the periods hitherto in use in the Common Law Courts ; 
 C. L. P. Act, 1852, s. 97 ; R. G. H. T. 1853, Rule 35. 
 
 10. Notice of trial shall be given before entering the 
 
 art inn for trial. 
 
 11. Notice of trial for London or Middlesex shall not be 
 or operate as for any particular sittings ; but shall be 
 deemed to be for any day after the expiration of the notice 
 on which the action may come on for trial in its order 
 upon the list. 
 
 By the Judicature Act, 1873 : — 
 
 s. 30. Subject to rules of court, sittings for the tried by jwry 
 
 in. 
 
 rt 
 
 ¥:■' 
 
 of causes "ml questions <>r issues of fact shall be TbeTd in 
 Middlesex and London, and such sittings shall, so far as is 
 •easonably practicable, and subject to vacations, be heldcon- 
 nuously throughout the year by as many judges as the 
 Usiness to be disposed of may render necessary. Any Judge 
 of the High Court of Justice sitting for the trial of causes 
 and issues in Middlesex or London, at any place heretofore 
 accustomed, or to be hereafter determined by rules of court, 
 
 s/n/ll l,r ilrrninl In n I//.4 it III 'r II Cn/ifi of llw Said High 
 
 ( 1 ourt of Justice. 
 
 The periods of vacation arc prescribed in Order LXL, post, p. 308. 
 As to the lists for trial in London and Middlesex, see Rule 16. 
 
 12. Notice of trial elsewhere than in London or Middle- 
 sex shall be deemed to be for the first day of the then next 
 
 a -i/es at the place for which notice of trial is given. 
 
 As to the assizes, see s. 29 of the Judicature Act, 1873, ante, p. 69, 
 and notes thereto. 
 
 13. No notice of trial shall be countermanded, except 
 by consent, or by leave of the Court or a Judge, which 
 leave may be given subject to such terms as to costs, or 
 otherwise, as may be just. 
 
 Hitherto notice of trial might l>r count, imanded by a four days' 
 notice ; C. L. P. Act, 1852, s. 98; R. <!., It. T. 1853, Ride 34. 
 
 See as to this and several other points in which the plaintiff's 
 power of controlling the conduct of an action is cm-tailed, note 
 to Order XXIIL, ante, p. 221. 
 
 14. If the party giving notice of trial for London or 
 Middlesex omits to enter the action for trial on the day or
 
 252 SUPREME COURT OF JUDICATURE ACT, 18*S 5, 
 
 Order day after giving notice of trial, the party to whom notice 
 ' Trial. ' has been given may, unless the notice has been counter- 
 — manded under the last rule, within four days enter the 
 action for trial. 
 
 15. If notice of trial is given for elsewhere than in 
 London or Middlesex, either party may enter the action 
 for trial. If both parties enter the action for trial, it shall 
 be tried in the order of the plaintiff's entry. 
 
 1G. The list or lists of actions for trial at the sittings in 
 
 London and Middlesex respectively shall be prepared and 
 
 the actions shall be allotted for trial without reference to 
 
 1 the Division of the High Court to which suchactions may 
 
 be attached. 
 
 17. The party entering the action For trial shall deliver 
 to the officer a copy of the whole of the pleadings in the 
 action, for the use of the Judge at the trial. Such copy 
 shall be in print, except as to such parts, if any, of the 
 pleadings as are by these Rules permitted to be written. 
 
 As to how far pleadings may be in writing, see Order XIX., 
 Rule 5, ante, p. 207 ; Order XXVII., Rule 8, cmte, p. 224. 
 
 18. If, when an action is called on for trial, the plaintiff 
 appears, and the defendant does not appear, then the 
 plaintiff may prove his claim, so far as the burden of 
 
 proof lies upon him. 
 
 Hitherto, in actions of ejectment, if the defendant did not appear 
 at the trial, the plaintiff has been entitled to a verdict without any 
 proof ; R. G., H. T. 1*53, Tai\e 114. 
 
 19. If, when an action is called on ha- trial, the 
 defendant appears, and the plaintiff docs not appear, the 
 defendant, if he has no coimter-claim, shall he entitled 
 to judgment dismissing the action, but if he lias a counter- 
 claim then he may prove such claim so far as the burden 
 of proof lies upon him. 
 
 20. Any verdict or judgment obtained where one party 
 does not appear at the trial, may he set aside by the 
 Court or a Judge upon such terms as may seem fit, upon 
 an application made within six days after the trial ; such 
 application may be made either at the assizes or in 
 Middlesex. 
 
 21. The Judge may, if he think it expedient for the 
 interests of justice, postpone or adjourn the trial for such 
 time, and upon such terms, if any. as he shall think tit.
 
 FIRST SCHEDULE. RULES OF COURT. 253 
 
 22. Upon the trial of an action, the Judge may, at or after Order 
 such trial, direct that judgment be entered for any or either ^r^J 1 ' 
 party, as he is by law entitled to upon the findings, and — ^ 
 either with or without leave to any party to move to set 
 aside or vary the same, or to enter any other judgment, 
 upon such terms, if any, as lie shall think fit to impose ; or 
 he may direct judgment not to be entered then, and leave 
 any party to move for judgment. N<> judgment shall be 
 entered after a trial without tin- order of a Court or judge. 
 
 By the Judicature Act, 1S73 : — 
 
 s. 29. Her Majesty, by commission >>j' assize <>r by any 
 otJier commission, either general <<r special, may assign to 
 any judge or judges of the High Court of Justice <>r other 
 persons usually name'd in commissions of assize, the duty 
 of trying and determining within any place or district 
 specially fixed fir that purpose by such commission, any 
 causes "/• matters, or any ijnesiinns <>r issues if fact or of 
 law, or partly of fact and partly of law, in any cause or 
 matter depending in the said High Court, or lie exercise 
 of a n n civil or criminal jurisdiction capable of being 
 exercised by tin- said High, Court; and any commission so 
 granted by Her Majesty shall In 1 of the same validity as if 
 il were enacted in the body of tin'*- Art: unit any com- 
 missioner or commissioners appointed in pursuance of this 
 section shall, wlien engaged in tin- exercise if any juris 
 diction assigned to him or them in pursuance of this Act, 
 be deemed to constitute u Court of tin' said High Court of 
 Justice : and, subject to any restrictions or conditions 
 imposed by rules of court unit In tin' power of transfer, 
 mill party to any cause or mutter involving the trial of a 
 question or issue of furl, or partly of fact and partly if 
 law, nuii/, with tlw /cure of the judge or judges to whom 
 nr to whose division the cause or mutter is assigned, require 
 I he question or issue to he /rial and determined by a 
 commissioner or commissioners us aforesaid or at sittings 
 In he held in Middlesex and London as hereinafter in /hi 
 Act mentioned, and such question m- issue shall he fried, 
 and determined accordingly. 
 
 A cause or matter not involving any question or issue of 
 fuel tun// he tried and determined in tile manner with the 
 consent if all the parties thereto, 
 
 s. 30. Any Judge of the High t 'ourt of Justice sitting for 
 the trial of causes and issues in Middlesex or London, at any 
 
 place heretofore aCCUStomed, or In he hereuffer ilelcrmilieii 
 
 tii/ rules of court, shall be deemed to constitute a Court of 
 tj/e said High Court of Justice.
 
 254 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order s. 46. Suhjed to o.inj rules < >f court, an y judge of the said 
 
 * friai. ' High Court, sitting in the exercise of itsjurisdictionelsewhere 
 — than in a Divisional Court, may reserve any ease, or any 
 ■point in o case, for the consideration of a Divisional Court, 
 or may direct any case, or point in a case, to be argued 
 before a Divisional Court; and any Divisional Court of the 
 said High Court shot/ have power to hear mid determine any 
 such case or point so reserved or so directed to tie argued* 
 
 This last section is, however, qualified by s. 22 of the Act of 1875, 
 which provides that nothing in the Acts or rules " shall take away 
 or prejudice the right of any party to any action to have the issues 
 for trial by jury submitted and left by the judge to the jury, before 
 whom the same shall come for trial, with a proper and complete 
 direction to the jury upon the law, and as to the evidence applicable 
 to such issues : Provided also that the said right may be enforced 
 either by motion in the High Court of Justice, or by motion in the 
 Court of Appeal founded upon an exception entered upon or annexed 
 to the record." As to the effect of the two sections taken together, 
 see note, ante, p. 82. 
 
 Hitherto in the Court of Chancery the judge at the hearing 
 has disposed both of questions of fact and of questions of law 
 together. He has decided not only whether the plaintiff has 
 proved the truth of the case, or the defendant the truth of the 
 defence alleged by him, but also whether the claim or the defence 
 is valid in law. 
 
 At Common Law it has been otherwise. The judge at Nisi Prills 
 has been a commissioner to try the issues of fact joined between the 
 parties as appearing upon the record, and to direct a verdict for 
 plaintiff or defendant accordingly. He has of course had power 
 to decide questions of law arising incidentally in the course of the trial 
 of the issues of fact, and in many other ways to deal with matters 
 of law ; but the broad question whether the plaintiff's claim, 
 assuming his facts proved, is good in law, or whether the defendant's 
 defence, if true infact,isgood in law, it has not been within his province 
 to determine. Those questions coidd be brought before the Court 
 in banc by demurrer, or by motion for judgment non obstante 
 vi r, dicto, and sometimes in other ways, but not before the judge at 
 the trial. This strict separation of issues of law from issues of fact 
 has by no means always been convenient. It is often, if not 
 generally, more convenient that the whole of the law of the case 
 should be decided when the facts are ascertained. By s. 29 of the 
 Judicature Act, 1873, ante, p. 69, every commissioner of assize, 
 and by s. 30 a judge at the London or Middlesex sittings, constitutes 
 a Court of the High Court. And the present rule leaves, it will be 
 observed, three courses open to the judge at the trial of an 
 action : — 
 
 To direct judgment to be entered for the party entitled to it 
 
 simply ; 
 To direct such judgment, subject to leave to move to set it aside ; 
 To direct that no judgment be then entered, and leave any party 
 
 to move for judgment. 
 In the first case, when judgment is ordered absolutely, where the 
 registrar or other officer to enter judgment is not the officer at the trial, 
 the associate's certificate will under Rule 24 of this Order entitle the 
 successful party to enter judgment accordingly. See Order XLL, 
 post, p. 272. And execution may issue forthwith, unless execution is
 
 FIRST SCHEDULE. — RULES OF COURT. 255 
 
 stayed ; Order XLIL, Rule 15, post, p. 276. As to moving for a new Order 
 trial by a party dissatisfied, see Order XXXIX., post, p. 267. And as XXXVI. 
 to when a party may move to set aside such a judgment and enter Trial. 
 another, see Order XL., Rules 4 and 5, post, p. 270. A motion for 
 either of these purposes will be only for a rule nisi in the first 
 instance ; Order XXXIX., Rule 1 ; Order XL., Rule 6, post, 
 pp. 267, 270. 
 
 In the second case, where the judge orders judgment subject to 
 leave to move, the judgment may be entered as in the last case, upon 
 the associate's certificate, Rule 25 ; Order XLL, post, p. 272. As 
 to the practice, on moving to set aside the judgment, see Order XL., 
 Rule 2, post, p. 269. The motion in such case will be upon notice 
 without any rule nisi, Order LIIL, Rule 2, post, p. 295. 
 
 As to moving for judgment where the judge orders no judgment 
 to be entered, see Order XL., Rule 3, post, p. 269. There will be no 
 rule nisi; Order LIIL, Rule 2, post, p. 295. 
 
 This rule, it will be observed, applies only where the trial is of the 
 action. A trial may still be ordered of specific issues only. 
 
 23. Upon every trial at the assizes, or at the London 
 and Middlesex sitting of the Queen's Bench, Common 
 Pleas, or Exchequer Division, where the officer present at 
 the trial is not the officer by whom judgments ought to he 
 entered, the associate shall enter all such findings of fact 
 as the Judge may direct to he entered, and the directions, 
 if any, of the Judge as to judgment, and the certificates, if 
 any, granted by the Judge, in a hook to he kept for the 
 [impose. 
 
 24. If the Judge shall direct that any judgment he 
 entered for any party absolutely, the certificate of the 
 associate to that effect shall he a sufficient authority to the 
 proper officer to enter judgment accordingly. The certifi- 
 
 may he in the Form No. 15 in Appendix (£) hereto. 
 
 25. If the Judge shall direct that any judgment he 
 entered for any party subject to leave to move, judgment 
 shall be entered accordingly upon the production of the 
 ass< iciate's certificate. 
 
 Hitherto when a cause was entered for trial, a copy of the record 
 showing tin: issues to be tried, called the nisi prius record, was de- 
 po ited with the officer. After the trial the nisi prius record was 
 endorsed with the postea, showing the result of the trial, and de- 
 livered to the successful party as soon as he was entitled to sign 
 judgment. The possession of the postea proved his right to judg- 
 ment, and was the warrant to tin: ] in >per "Hirer t<> enter the judg- 
 ment. There will for the future be no nisi prius record, though 
 under Rule 17 of this Order a copy of tin: pleadings for the use of 
 the judge is to be deposited on entering the action for trial. The 
 certificate provided by these rules will take the place of the postea. 
 As to entry of judgment, see Order XLL, post, p. 272. 
 
 26. The Court or a Judge may, if it shall appear desir- Jc/. 2,/zy 
 able, direct a trial without a jury of any question or issue 4'6- Sy//
 
 256 SUPEEMB COURT OF JUDICATURE ACT, 1875. 
 
 Order of fact, or partly of fact and partly of law, arising in any 
 ' Trial. ' cause or matter which previously to the passing of the 
 — Act could, without any consent of parties, be tried with- 
 out a jury. 
 
 See note to Rule 2, ante, p. 248. 
 
 27. The Court or a Judge may, if it shall appear either 
 before or at the trial that any issue of fact can be more 
 conveniently tried before a jury, direct that such issue 
 shall be tried by a Judge with a jury. 
 
 See note to Rule -. mitt, p. 248. 
 
 28. Trials with assessors shall take place in such manner 
 
 and upon such terms as the Court or a Judge shall direct. 
 
 By the Judicature Act, 1873, 
 
 s. 56. Tin- High Court or the Court of Appeal may also, 
 /// any such cause <>r matter ns aforesaid in which if may 
 think if expedient so In do, mil in tin' aid of <>m- or more 
 assessors specially qualified, mnl try and hear such cause 
 or mutter wholly or -partially with the assistance of such 
 assessors. The remuneration, if any, t<> be /»'/'</ to such 
 
 assessors shall be determined by tin: 
 
 Court. 
 
 See Rule :_', ante, p. 2 IS, and note thereto. 
 
 29. In any cause the Court or a Judge of the division 
 to which the cause is assigned may, at anytime or from 
 time to time, order the trial and determination of any 
 question or issue of fact, or partly of fact and partly of 
 law, by any commissioner or commissioners appointed in 
 pursuance of the 29th section of the said Act, or at the 
 sittings to lie held in Middlesex or London, and such 
 question or issue shall be tried and determined accor- 
 dingly. 
 
 See s. -J',', fii/i, }>. 69 ; and note to Rule 2, ante, p. 248. 
 
 30. Where any cause or matter, or any question in any 
 cause or matter, is referred to a Referee, lie may, subject 
 bo the order of the Court or a Judge, hold the trial at or 
 adjourn it to any place which he may deem most con- 
 venient, and have any inspection or view, either by him- 
 self or with his assessors (if any), which he may deem ex- 
 pedient for the better disposal of the controversy before 
 him. He shall, unless otherwise directed by the Court or 
 a Judge, proceed with the trial de die in diem, in a similar 
 manner as in actions tried bv a jury.
 
 15 When an Order shall have been made referring 
 Ori, meS % t0 r he ° fficialEeW in rotation72 
 
 tf 1^ J Wh °'T dut l lfc is t0 make such d ^ibu- 
 -ion as aforesaid; and such clerk shall (except in the 
 jse provided for by Rule 29c of tWs 0r der) endorse 
 hereon a note specifying the name of the Official Referee 
 n rotation to whom such business is to be referred • and 
 
 he o£dT f d0rS 1 ShaU * a SuffiGient -thority for 
 the Official Referee to proceed with the business so re- 
 
 1 6. The two last preceding Rules of this Order are not 
 to interfere with the power of the Court, or of the Judge 
 at Chambers, to direct or transfer a reference to any one 
 in particular of the said Official Referees, where it appears 
 to the Court or the Judge to be expedient ; but every 
 such reference or transfer shall be recorded in the manner 
 mentioned in Rule 2 of the second of the said Consoli- 
 dated General Orders, and a note to that effect be endorsed 
 on the Order of Reference or transfer ; and in case any 
 
 such reference or transfer shall have been or shall be 
 made to any one in particular of the said referees, then 
 the clerk in making the distribution of the business 
 according to such rotation as aforesaid shall have regard 
 to any such reference or transfer. 
 
 Inspection. 
 XXL^DiBCOVfflff AW) o£ th 
 
 XXXL, Rule 7, ( Of. g Th8 by subatitu tod gft 
 n the word ten (( [qs „ 
 
 ihre e" before the woid 
 
 v District Registries. 
 
 V ._.p R OCEEDl>'GS 1. ^^ o{ thc0ri , pr 
 
 otxv., ^ e *' °
 
 supreme Uourt " is hereby anjrulled, : 
 shall stand in lieu thereof : — ./ 
 
 1. Where an action proceeds in th 
 all proceedings, except where by any < 
 Supreme Court it is otherwise provid 
 a Judge shall otherwise order, shall be 
 trict Kegistry, down to and including 1 
 every final judgment and eterjr order 
 reason of the default of the defend 
 shall be entered in the District Reg 
 
 an action proceeding in London would 
 London. 
 
 Where the writ of summons isassued ou 
 Registry and the plaintiff is entitled to ente: 
 judgment under Order XIII., Rule 6, or wl 
 proceeds in the District Registry and th 
 entitled to enter interlocutory judgment 
 XXIX., Rule 4 or 5, in either case such 
 judgment, and when damages" shall have 
 
 order U. The business to be referred to the Official Referees 
 
 SbS" appointed under the Supreme Court of Judicature A,,, 
 
 t , 1873, shall be distributed among such Official Referees 
 
 J »~'*fi in rotation by the clerks to the Registrars of the Supreme 
 
 Court, Chancery Division, in like manner m all respects 
 
 as the business referred to conveyancing counsel appointed 
 
 under the Act of the 15th and 16th Vict,, cap. 80 section 
 
 41, is directed to be distributed by the second of the 
 
 Consolidated General Orders of the Court of Chancery.
 
 sllowin 
 
 Registry 
 s of the 
 
 Court O" FIRST SCHEDULE. — RULES OF COURT. 257 
 
 the Die 
 
 ent, ail B y the Judicature Act, 1873, 0rder 
 
 ;ount n s * 56. Subject to any rules of court and to such right as ^^J 1 ' 
 coTxs&hay now exist to have particular cases submitted to thever- 
 e proph"'^ of a jury, any question arising in any cause or mutter 
 order >tta r than a criminal proceeding by the Crown) before the 
 in Hi'jh Court of Justice or before the Court of Appeal, may 
 be referred by the Court or by any Divisional Court or 
 Judge before ibhom such cause or matter may be pending, 
 for inquiry and report to any official or special referee, and, 
 the report of any such referee may be adopted wholly or 
 partially by the Court, and may (if so adopted) be 
 enforced as a judgment by the Court. The remuneration 
 {if any) to be paid to such special referees shall be deter- 
 mined by the Court. 
 
 s. 57. In any cause or matter (other than a criminal pro- 
 ceeding by the Cfown) before the said High Court in which 
 'ill parties interested ir/m ore under no disability consent 
 thereto, and also without such consent in any such cause or 
 matter requiring any prolonged examination of documents 
 or accounts, or any scientific or I neat investigation which 
 cannot, in the opinion of the Court or a judge, conveniently 
 be im nlc before a jury, or conducted by the Court through 
 its ordinary officers, the Court or a judge may at any time, 
 on such terms as may be thought proper, order any ques- 
 tion or issue of fact or any question of account arising 
 /herein to be tried either before, an official referee, to be 
 appointed as hereinafter provided, or before a special 
 referee to be agreed on between the parties- .• and any 
 
 SUCh special referee SO Oijreed an shall have the so me powers 
 
 and duties and proceed in the some manner as an official 
 referee. All such trials before referees shall be conducted 
 in such manner as may be prescribed by rules of court, and 
 subject thereto in such ma unci- as the ('our/ or judge order- 
 ing the same *hall direct. 
 
 s. 58. In all cases of any reference to or trial by refera 
 under this Act the referees shall be deemed to be officers of the 
 Court, and shall have such authority for the purpose of such 
 reference or trial as shall be prescribed by rules of court or 
 (subject to such rules) by the Court or judge ordering such 
 reference or trial : and the report of any re/eree upon any 
 question of fact on any such trial shall (unless set aside 
 la/ the Court) be equivalent to the verdict of a jury. 
 
 s. 59. Willi respect to all such proceedings before referees 
 
 and I heir reports, the Court Or sue// judge as aforesaid 
 
 shall have, in addition to any oilier powers, the same or
 
 258 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order the like powers as are r/ioen to any Court whose jtirisdic- 
 
 Trial. f '"" JS hereby transferred to trie said High Court with 
 
 respect to references hi arbitration and proceedings before 
 
 arbitrators and their awards respectively, by the Common 
 
 Law Procedure Ad, 1854. 
 
 The provisions of the C. L. P. Act, 1854, with respect to arbitra- 
 tions are contained in ss. 3 to 1 7. They are as follows : — 
 
 s. 3. " If it be made appear, at any time after the issuing of the 
 writ, to the satisfaction of the Court or a judge, upon the 
 application of either party, that the matter in dispute con- 
 sists wholly or in part of matters of mere account, which 
 cannot conveniently be tried in the ordinary way, it shall be 
 lawful for such Court or judge, upon such application, if 
 they or he think fit to decide such matter in a summary 
 manner, or to order that such matter, either wholly or in 
 part, be referred to an arbitrator appointed by the parties, 
 < a- t< i an officer of the Court, or in country causes to the judge 
 of any County Court, upon such terms as to costs and other- 
 wise as such Court or judge shall think reasonable ; and the 
 decision or order of such Court or judge, or the award or 
 certificate of such referee, shall be enforceable by the same 
 process as the finding of a jury upon the matter referred." 
 
 This is repealed as to County Court Judges by 21 & 22 Vict. 
 c. 71, s. 5. As to the classes of cases to which this section applies, 
 see note on the section in Day's C. L. P. Acts, p. 426, 4th edit. 
 
 s. 4. " If it shall appear to the Court or a judge that the allowance 
 or disallowance of any particular item or items in such 
 account depends upon a question of law fit to be decided 
 by the Court, or upon a question of fact fit to be decided 
 by a jury, or by a judge upon the consent of both parties as 
 hereinbefore provided, it shall be lawful for such Court or 
 judge to direct a case to be stated, or an issue or issues to be 
 tried ; and the decision of the Court upon such case, and the 
 finding of the jury or judge upon such issue or issues, shall 
 be taken and acted upon by the arbitrator as conclusive." 
 
 s. 5. " It shall be lawful for the arbitrator upon any compulsory 
 reference under this Act, or upon any reference by consent 
 of parties where the submission is or may be made a rule 
 or order of any of the Superior Courts of Law or Equity at 
 Westminster, if he shall think fit, and if it is not provided 
 to the contrary, to state his award, as to the whole or any 
 part thereof, in the form of a sjiecial case for the opinion 
 of the Court, and when an action is referred, judgment, if 
 so ordered, may be entered according to the opinion of the 
 ( *ourt." 
 
 See Rule 34, post, p. 264. Hitherto error has not lain from the 
 derision of the Court upon a case so stated. But see now s. 19 of 
 the Judicature Act, 1873, ante, p. 54. 
 
 s. 6. " If upon the trial of any issue of fact by a judge under this 
 .Vet it shall appear to the judge that the questions arising 
 thereon involve matter of account which cannot conveniently 
 
 lie tried before him, it shall be lawful for him, at his discre-
 
 FIRST SCHEDULE. — RULES OF COURT. 
 
 259 
 
 tion, to order that such matter of account be referred to an 
 arbitrator appointed by the parties, or to an officer of the 
 Court, or, in country causes, to a judge of any County Court, 
 upon such terms, as to costs and otherwise, as such judge 
 shall think reasonable ; and the award or certificate of such 
 referee shall have the same effect as hereinbefore provided 
 as to the award or certificate of a referee before trial ; and 
 it shall be competent for the judge to proceed to try and 
 dispose of any other matters in question, not referred, in like 
 manner as if no reference had been made." 
 This section seems to be practically superseded by the larger pro- 
 vision of ss. 56 and 57 of the Judicature Act, 1873, set out above. 
 
 s. 7. " The proceedings upon any such arbitration as aforesaid shall, 
 except otherwise directed hereby or by the submission or 
 document authorizing the reference, be conducted in like 
 manner, and subject to the same rules and enactments, as to 
 the power of the arbitrator and of the Court, the attendance 
 of witnesses, the production of documents, enforcing or 
 setting aside the award, and otherwise, as upon a reference 
 made by consent under a rule of Court or judge's order." 
 
 s. 8. " In any case where reference shall be made to arbitration as 
 aforesaid, the Court or a judge shall have power at any 
 time, and from time to time, to remit the matters referred, or 
 any or either of them, to the reconsideration and redetermina- 
 tion of the said arbitrator, upon such terms, as to costs and 
 otherwise, as to the said Court or judge may seem proper." 
 
 s. !'. " All applications to set aside any award made on a compulsory 
 reference under this Act shall and may be made within the 
 first seven days of the term next following the publication of 
 the award to the parties, whether made in vacation or term ; 
 and if no such application is made, or if no rule is granted 
 thereon, or if any ride granted thereon is afterwards dis- 
 charged, such award shall be final between the parties." 
 
 s. 10. " Any award made on a compulsory reference under this Act 
 
 may, by authority of a judge, on such terms as to him may 
 
 a reasonable, be enforced at any time after seven days 
 
 fn ii ii the time of publication, notwithstanding that the time 
 
 for moving to set it aside has not elapsed." 
 
 This power seems l<> be imported into all references under the 
 .1 udicature Act, 1873, by s. 59, suprd. 
 
 Order 
 
 XXXVI. 
 
 Trial. 
 
 11. " Whenever tile parties to any deed or instrument in writing 
 1" be hereafter made or executed, or any of them, shall agree 
 that any then existing or future differences between them or 
 any of them shall be referred to arbitration, and any one or 
 mere of the parties so agreeing, or any person or persons 
 claiming through or under him or them, shall nevertheless 
 commence any action at law or suit in equity against tin: 
 ether party or parties, or any of them, or against any person 
 or persons claiming through or under him or them in respect 
 of the matters so agreed to be referred, or any of them, it 
 shall bo lawful for the Court in which action or suit is 
 brought, or a judge thereof, on application by the defendant
 
 260 SUPREME COURT OF JUDICATURE ACT, 187"!. 
 
 Order or defendants, or any of them, after appearance and before 
 
 £ ■ , *• plea or answer, upon being satisfied that no sufficient 
 
 reason exists why such matters cannot be or ought not to be 
 referred to arbitration according to such agreement as afore- 
 said, and that the defendant was at the time of the bringing 
 of such action or suit, and still is, ready and willing to join 
 and concur in all acts necessary and proper for causing such 
 matters so to be decided by arbitration, to make a rule or 
 order staying all proceedings in such action or suit, on such 
 terms as to costs and otherwise as to such Court or judge may 
 seem fit ; provided always, that any such ride or order may 
 at any time afterwards be discharged or varied as justice may 
 require." 
 
 s. 12. "If in any case of arbitration the document authorizing 
 reference provide that the reference shall be to a single 
 arbitrator, and all the parties do not, after differences have 
 arisen, concur in the appointment of an arbitrator ; or if any 
 appointed arbitrator refuse to act, or become incapable of 
 acting, or die, and the terms of such document do not show 
 that it was intended that such vacancy should not be supplied, 
 and the parties do not concur in appointing a new one ; or 
 if, where the parties or two arbitrators are at liberty to 
 appoint an umpire or third arbitrator, such parties or 
 arbitrators do not appoint an umpire or third arbitrator ; or 
 if any appointed umpire or third arbitrator refuse to act, or 
 become incapable of acting, or die, and the terms of the docu- 
 ment authorizing the reference do not show that it was 
 intended that such a vacancy should not be supplied, and the 
 parties or arbitrators respectfully do not appoint a new one ; 
 then in every such instance any party may serve the remain- 
 ing parties or the arbitrators, as the case may be, with a 
 written notice to appoint an arbitrator, umpire, or third arbi- 
 trator respectively ; and if within seven clear days after such 
 notice shall have been served, no arbitrator, umpire, or third 
 arbitrator be appointed, it shall be lawful for any judge 
 of any of the Superior Courts of Law or Equity at West- 
 minster, upon summons to be taken out by the party having 
 served such notice as aforesaid, to appoint an arbitrator, 
 umpire, or third arbitrator as the case may be, and such arbi- 
 trator, irmpire, and third arbitrator respectively shall have 
 the like power to act in the reference and make an award as 
 if he had been appointed by consent of all parties." 
 
 s. 13. "When the reference is or is intended to be to two 
 arbitrators, one appointed by each party, it shall be lawful 
 f'( >r either party, in the case of the death, refusal to act, or in- 
 capacity of any arbitrator appointed by him, to substitute a 
 new arbitrator, unless the document authorizing the reference 
 show that it was intended that the vacancy should not be 
 supplied : and if on such a reference one party fail to appoint 
 an arbitrator, either originally or by way of substitution as 
 aforesaid, for seven clear days after the other party shall 
 have appointed an arbitrator, and shall have served the 
 party so failing to appoint with notice in writing to make 
 the appointment, the party who has appointed an arbitrator 
 may appoint such arbitrator to act as sole arbitrator in the 
 reference, and an award made by him shall he binding on
 
 i [RST SCHEDULE. i:( LES OF COURT. 261 
 
 T 
 
 n.il 
 
 both parties as if the appointment had been by consent ; pro- Order 
 vided, however, that the Court or a judge may revoke such X ,XXVI. 
 appointment, on such terms as shall seem just." 
 
 s. 14. " When the reference is to two arbitrators, and the terms 
 of the document authorising it do not show that it was 
 intended that there should not be an umpire, or provide other- 
 wise for the appointment of an umpire, the two arbitrators 
 may appoint an umpire at any time within the period during 
 which they have power to make an award, unless they be 
 called upon by notice as aforesaid to make the appointment 
 sooner." 
 
 s. 1 5. " The arbitrator acting under any such document or compulsory 
 order of reference as aforesaid, or under any order referring 
 the award back, shall make his award under his hand, and 
 (unless such document or order respectively shall contain a 
 different limit of time) within three months after he shall have 
 been appointed, and shall have entered on the reference, or 
 shall have been called upon to act by a notice in writing from 
 any party, but the parties may by consent in writing enlarge 
 the term for making the award ; and it shall lie lawful for the 
 superior Court of which such submission, document, or order 
 is or may be made a rule or order, or for any judge thereof, 
 for good cause to be stated in the ride or order for enlarge- 
 ment, from time to time to enlarge the term for making the 
 award ; and if no period be stated for the enlargement in such 
 consent or order for enlargement, it shall be deemed to be an 
 enlargement for one month ; and in any case where an umpire 
 shall have been appointed, it shall be lawful for him to enter 
 on the reference in lieu of the arbitrators, if the latter shall 
 have allowed their time or their extended time to expire 
 without making an award, or shall have delivered to any party 
 or to the umpire a notice in writing stating that they cannot 
 agree." 
 
 s. 16. " When any award made on any such submission, document, 
 or order of reference as aforesaid, directs that possession of 
 any lands or tenements, capable of being the subject of an 
 action of ejectment shall be delivered to any party, either 
 forthwith or at any future time, or that any such party is 
 entitled to the possession of any such lands or tenements, it 
 shall be lawful for the Court of which the document autho- 
 rizing the reference is or is made a rule or order to order any 
 party to the reference who shall be in possession of any such 
 lands or tenements, or any person in possession of the same 
 claiming tinder or put in possession by him since the making 
 of the document authorising the reference, to deliver posses- 
 sion of the same to the party entitled thereto, pursuant to the 
 award, and such rule or order to deliver possession shall have 
 the effect of a judgment in ejectment against every such party 
 or person named in it, and execution may issue, and possession 
 shall be delivered by the sheriff as on a judgment in ejectment." 
 
 s. 1 7. " Every agreement or submission to arbitration by consent, 
 whether by deed or instrument in writing not under seal, 
 may be made a rule of any one of the Superior Courts of Law 
 or Equity at Westminster, on the application of any party 
 thereto, unless such agreement or submission contain words
 
 262 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Trial. 
 
 Order purporting that the parties intend that it should not be made 
 
 XXXyi. a rule of court ; and if in any such agreement or submission 
 
 it is provided that the same shall or may be made a ride of 
 one in particular of such Sujjerior Courts, it may be made a 
 rule of that Court only ; and if when there is no such pro- 
 vision a case be stated in the award, for the opinion of one 
 of the Superior Courts, and such Court be specified in the 
 award, and the document authorizing the reference have not, 
 before the publication of the award to the parties been made 
 a rule of court, such document may be made a rule only of 
 the Court specified in the award ; and when in any case 
 the document authorizing the reference is or has been made 
 a ride or order of any one of such Superior Courts, no other 
 of such Courts shall have any jurisdiction to entertain any 
 motion respecting the arbitration or award." 
 A submission which can merely be made a rule of court under 
 that section is not thereby rendered irrevocable under 3 & 4 Will. 4, 
 c. 42,. s. 29 ; that section applying only to a submission by rule of 
 court in an action, or a submission containing an agreement that 
 it may be made a rule of court, Mills v Bayley, 2 H. & C. 36 ; 
 Thomson v. Anderson, Law Rep., 9 Eq. 523 ; Me Bouse and Mela; 
 Law Rep., 6 C. P. 212. 
 
 Three kinds of references have heretofore been in habitual use 
 (besides those under the Lands' Clauses Act, and other Acts of the 
 same class) : — 
 
 First. — References to arbitration by consent of controversies, as 
 
 to which no action or suit is pending, but in which, if the 
 
 conditions of the Acts be complied with, the submission may 
 
 be made a rule of court, and the award may be enforced 
 
 under 9 & 10 Will. 3 c. 15, and sec. 17 of the C. L. P. Act, 
 
 1854, supra. 
 
 Such arbitrations as these do not appear to be affected by the 
 
 Act or the rides ; the clauses relating to references being seemingly 
 
 limited to references occurring in actions or matters pending before 
 
 the Court. 
 
 Secondly. — References of actions by consent of the parties. 
 
 Such references have usually taken one or another of three forms. 
 The submission has been of the action simply ; or of the action and 
 all matters in difference, so as to refer all controversies though 
 not included in the action ; or of the action and all matters in 
 difference with power to say what shall be done, so as to enable the 
 arbitrator not only to determine rights or award damages, as the 
 case may be, but to direct the doing of such acts as may be desirable. 
 
 Thirdly. — Compidsory references to the Masters of the Common 
 Law Courts in cases in which the matter in disrjute consists 
 wholly or in part of matters of mere account under ss. 3 to 10 
 of the C. L. P. Act, 1854, supra. 
 There appears to be nothing in the Act or rules to take away the 
 power of compidsory reference to a Master under the last-men- 
 tioned sections. 
 
 But the new legislation, in the first place, largely extends 
 the power of compidsory reference, and allows such references 
 to others besides Masters ; for by s. 56 of the Act, svprd, subject to 
 the right of trial by jury, any question may be referred for inquiry 
 or report. And by s. 57, supra, any question or issue of fact, or any 
 question of account, may be compulsorily referred in any cause of
 
 FIRST SCHEDULE. — RULES OF COURT. 263 
 
 matter requiring any prolonged examination of documents or accounts, Order 
 or any scientific or local investigation, which cannot conveniently be X £~^ I- 
 made before a jury, or conducted by the Court through its other 
 ordinary officers. And in either case the reference may be either 
 to an official referee (as to whose appointment, see s. 83 of the 
 Judicature Act, 1873, ante, p. 106), or to a special referee agreed 
 upon by the parties. 
 
 In the second place, material changes are made in the practice of 
 arbitration and the respective powers of the arbitrator and the Court, 
 whether the reference of an action or a question in an action be com- 
 pulsory or by consent. 
 
 Hitherto an arbitrator's decision on facts, on the admission of 
 evidence, on law, has in ordinary cases been final and conclusive. 
 Unless the submission gave the parties the right to require him to 
 state a case for the opinion of the Court under s. 5 of the C. L. P. 
 Act, 1854, set out above, or unless he chose in his discretion to do 
 so, there has been no means of reviewing his decision. The oidy 
 thing that could be done was to set aside the award if he exceeded 
 his authority, or was guilty of misconduct, and in a few other cases. 
 
 The new provisions place an arbitrator to whom questions in an 
 action, or the trial of an action, is referred, in an entirely different 
 position. 
 
 If a question be referred to him for inquiry and report under 
 s. 56, set out above, the Court may or may not adopt his rejiort. 
 
 If the trial of the action, or of any questions in it, be referred to 
 him under s. 57, set out above, or under Rule 2, ante, p. 248, he 
 becomes for the purpose an officer of the Court, and amenable to its 
 control ; s. 58, set out above. 
 
 His report upon a question of fact is, by the same section, equiva- 
 lent to a verdict. And it may be set aside, as the verdict of a jury 
 might be set aside. 
 
 Further, the trial of an action by a referee is to be conducted in 
 the same manner as before a judge, and he is to have the same 
 authority as a judge; Rules 31 and 32, post. Having found the 
 facts, therefore, the duty of the referee will be, under Rule 22, 
 ante, p. 253, either to direct simply a judgment for any party, or a 
 judgment subject to leave to move, or to direct no judgment, and 
 leave any party to move. 
 
 If on the facts found he has applied the law improperly, and 
 directed a wrong judgment, the Court may correct him and enter the 
 proper judgment (Order XL., Rule 5) without any leave reserved. 
 If he reserves leave to move or abstains from ordering any entry of 
 judgment, application may be made to the Court to give the proper 
 judgment ; Order XL., Rules 2, 3. 
 
 If he states a case or finds the facts specially, the Court may 
 require his reasons and explanations, and if necessary send the 
 matter back to him or another referee ; Rule 34, post. 
 
 31. Subject to any order to be made by the Court or 
 Judge ordering tlio same, evidence shall he taken at any 
 trial before. :i Referee, and the attendance of witnesses may 
 be enforced by subpoena, and every such trial shall be con- 
 ducted in the same manner, as nearly as circumstances will 
 admit, as trials before a Judge of the High (Joint, but not 
 so as to make the tribunal of the Referee a public Court of 
 Justice.
 
 264 SUPREME COl RT Oi JUDICATURE ACT, IS' I . 
 
 Older To compel the attendance of a witness before an arbitrator it has 
 
 XXXVI. hitherto been necessary to obtain a judge's order under 3 & 4 
 Trial. will. 4, c. 42, s. 4. 
 
 32. Subject to any such order as last aforesaid, the 
 Referee shall have the same authority in the conduct of any 
 reference or trial as a Judge of the High Court when 
 presiding at any trial before him. 
 
 33. Nothing in these hides contained shall authorise 
 any Referee to commit any person to prison or to enforce 
 any order by attachment or otherwise. 
 
 34. The Referee may, before the conclusion of any trial 
 before liim, or by his report under the reference made to 
 him, submit any question arising therein for the decision 
 of the Court, or state any facts specially, with power to the 
 Court to draw inferences therefrom, and in any such case 
 the order to be made on such submission or statement shall 
 be entered as the Court may direct ; and the Court shall 
 have power to require any explanation or reasons from the 
 Referee, and to remit the cause or matter, or any part 
 thereof, for re-trial or further consideration to the same or 
 any other Referee. 
 
 The powers given by this section are analogous to, but more ex- 
 tensive than those conferred by s. 5 of the C. L. P. Act, 1854, supra. 
 That section simply enabled an arbitrator to state his award as to 
 the whole or any part thereof in the form of a special case for the 
 opinion of the Court. And the Court could only deal with the 
 case as stated. Under this rule the Court may require of the 
 arbitrator explanations or reasons, or send the matter back for 
 re-trial or reconsideration, and to another referee if it thinks fit. 
 The Court, too, may enter the order of the Court as it thinks fit. 
 
 See also s. 58 of the Judicature Act, 1873, and note to Rule 30, 
 ante, p. 263, as to the control of the Court over referees. 
 
 9Lc&J^ -&1> t<X - C 2>. #{/■ 
 
 Order ORDER XXXVII. 
 
 XXXVII. 
 
 Evidence -t-« t-\ 
 
 Generally. EVIDENCE GENERALLY, 
 
 1. In the absence of any agreement between the parties, 
 and subject to these rides, the witnesses at the trial of 
 any action or at any assessment of damages, shall be 
 examined viva voce and in open court, but the Court or a 
 Judge may at any time for sufficient reason order that any 
 particular fact or facts may be proved by affidavit, or that 
 the affidavit of any witness may be read at the hearing or 
 trial, on such conditions as the Court or Judge may think 
 reasonable, or that any witness whose attendance in Court
 
 FIRST SCHEDULE. — RULES OF COURT. 2G5 
 
 ought for some sufficient cause to be dispensed with, be Order 
 examined by interrogatories or otherwise before a commis- Evidence' 
 sioner or examiner ; provided that where it appears to the Generally. 
 Court or Judge that the other party bona fide desires the 
 production of a witness for cross-examination, and that 
 such witness can be produced, an order shall not be made 
 authorising the evidence of such witness to be given by 
 affidavit. 
 
 By the Act of 1875, in substitution for s. 72 of the Judicature 
 Act," 1873:— 
 
 s. 20. Nothing in this Act or in the first schedule hereto, 
 or in any rules of court to he made under this Act, save as 
 far as relates to the power of the Court for special reasons 
 to allow depositions or affidavits to he read, shall affect the 
 mode of giving evidence by the oral examination of wit- 
 nesses in trials by jury, or the rules of evidence, or the law 
 relating to jurymen on juries. 
 
 As to taking evidence by affidavit by consent, see the next 
 Order. 
 
 As to depositions, see Rule 4 of this Order, and notes thereto. 
 
 2. Upon any motion,, petition, or summons evidence 
 may be given by affidavit ; but the Court or a Judge may, 
 on the application of either party, order the atten dance. 
 for _ cross-examination of the person niakin g any such 
 affidavit. 
 
 Cross-examination in the case provided for by this rule, has 
 hitherto in Chancery been before an examiner, 15 & 16 Vict., 
 c. 86, s. 40. 
 
 3. Affidavits shall be confined to such facts as the 
 witness is able of his own knowledge to prove, except 
 on interlocutory motions, on which statements as to his 
 belief, with the grounds thereof, may be admitted. The 
 costs of every affidavit which shall unnecessarily set forth 
 matters of hearsay, or argumentative matter, or copies of 
 or extracts from documents, shall be paid by the party 
 filing the same. 
 
 The power given by the last clause of this rule, is, in the absence 
 of any special order of the Court or judge, to be exercised by the 
 taxing officer ; Additional Rules, post, p. 413. 
 
 4. The Court or a Judge may, in cause or matt it where 
 it shall appear necessary for the purposes of justice, make 
 any order for the examination upon oath before any officer 
 of the Court, or any other person or persons, and at any 
 place, of any witness or person, and may order any depo-
 
 2G6 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order 
 XXXVII. 
 Evidence 
 Generally. 
 
 sition so taken to be filed in the Court, and may empower 
 any party to any such cause or matter to give such depo- 
 sition in evidence therein on such terms, if any, as the 
 Court or a Judge may direct. 
 
 This rule is a repetition in somewhat different language of the 
 1 Will. IV., c. 22, s. 4, the statute under which the Common Law 
 Courts have hitherto had power to order the depositions of witnesses 
 to be taken. 
 
 In the Common Law Courts, witnesses have been examined before 
 the trial : 
 
 1. When within the jurisdiction ; 
 
 2. When out of the jurisdiction. 
 
 Within the jurisdiction, depositions have been taken when it has 
 been shown that a necessary witness was either going abroad, or was 
 from illness, age, or other infirmity, likely to be unable to attend the 
 trial. 
 
 Commissions to examine witnesses abroad have been issued when- 
 ever such examination has been shown to be necessary for the pur- 
 poses of justice. 
 
 As to the practice under 1 Will. IV. c. 22, see 1 Chitty's 
 Archbold, 329, et seq., 11th edit. 
 
 A deposition to be used under this order must be printed, unless 
 otherwise ordered, or unless it has been previously used in manu- 
 script ; Additional Rules, Orders I. and II., post, p. 391. As to 
 mode of printing, delivery of cojiies, costs, &c, see ibid., Order V. 
 
 Order 
 XXXVIII. 
 
 Evidence by 
 Affidavit. 
 
 OEDEE XXXVIII. 
 
 Evidence by Affidavit. 
 
 /&£.£} -2.7% r 6&A 1- Within fourteen days after a consent for taking- 
 evidence by affidavit as between the plaintiff and the 
 defendant has been given, or within such time as the 
 parties may agree upon, or a Judge in Chambers may allow, 
 the plaintiff shall file his affidavits and deliver to the 
 defendant or his solicitor a list thereof. 
 
 By Order XXXVIL, Rule 1, subject to the qualifications there 
 stated, the evidence in an action cannot be taken by affidavit 
 without consent. The effect of these orders upon affidavit evidence 
 is very material. 
 
 In the Common Law Courts such evidence has not hitherto been 
 in use at all upon the trial of a cause. It may for the future be 
 used by consent, subject to the provisions of this order. 
 
 In the Court of Chancery it has been the kind of evidence 
 ordinarily used. For the future it can only be adopted by consent 
 at the trial of an action. And the cross-examination of witnesses 
 will in all cases be in open Court at the healing, instead as con- 
 stantly heretofore before an examiner. 
 
 2. The defendant within fourteen days after delivery of 
 such list, or within such time as the parties may agree upon, 
 or a Judge in Chambers may allow, shall file his affidavits 
 and deliver to the plaintiff or his solicitor a list thereof.
 
 FIRST SCHEDULE. — RULES OP COURT. 267 
 
 3. Within, seven days after the expiration of the said Order 
 fourteen days, or such other time as aforesaid, the plaintiff E^denceby 
 shall file his affidavits in reply, which affidavits shall Affidavit. 
 he confined to matters strictly in reply, and shall deliver 
 
 to the defendant or his solicitor a list thereof. 
 
 4. "When the evidence is taken by affidavit, any party 
 desiring to cross-examine a deponent who has made an 
 affidavit filed on behalf of the opposite party, may serve 
 upon the party by whom such affidavit has been filed, a 
 notice in Writing, requiring the production of the deponent 
 for cross-examination before the Court at the trial, such 
 notice to be served at any time before the expiration of 
 fourteen days next after the end of the time allowed for 
 filing affidavits in reply, or within such time as in any case 
 the Court or a Judge may specially appoint ; and unless 
 such deponent is produced accordingly, his affidavit shall 
 not be used as evidence unless by the special leave of the 
 Court. The party producing such deponent for cross- 
 examination shall not be entitled to demand the expenses 
 thereof in the first instance from the party requiring such 
 production. 
 
 5. The party to whom such notice as is mentioned in the 
 last preceding ride is given, shall be entitled to compel the 
 attendance of the deponent for cross-examination in the 
 same way as he might compel the attendance of a witness 
 to be examined. 
 
 6. When the evidence in any action is under this order 
 taken by affidavit, such evidence shall be printed, and the 
 notice of trial shall be given at the same time or times 
 after the close of the evidence as in other cases is by 
 these I Jules provided after the close of the pleadings. 
 
 Affidavit evidence taken under this order is to be printed by the 
 parties ; Additional Rules, Order V., post, p. 392 ; where see as to 
 printing, delivery of copies, costs, &c. By Order II., ibid., affidavits 
 need not be printed, if they have been previously used in manuscript. 
 
 As to the time for giving notice of trial, see Order XXXVI., 
 Rules 3 and 4, ante, p. 249. 
 
 Any other affidavit than those required by this rule to be printed, 
 may be printed, either by consent, or by an order; Additional 
 Eules, Order III., post, p. 391. 
 
 ORDER XXXIX. Ord« x 
 
 Motion for New Trial. N°w K Tri!iT 
 
 1. A party desirous of obtaining a new trial of any 
 cause tried in the Queen's Iicncli, Common Pleas, or 
 Exchequer Divisions on which a verdict has "been found! by a
 
 26S SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order jury, or by a Judge without a Jury, must apply for the 
 
 Motion for same to a Divisional Court by motion for an order calling 
 New Trial- upon the opposite party to show cause at the expiration of 
 eight days from the date of the order, or so soon after as 
 the case can he heard, why a new trial should not he 
 directed. Such motion shall he made within four days 
 after the trial, if the Divisional Court is then sitting, or 
 within the first four days after the commencement of the 
 sitting of the Divisional Court next after the trial, or 
 within such extended time as the Court or a Judge may 
 allow. 
 
 This is in accordance with the practice hitherto prevailing in the 
 Common Law Courts, as are also Rules 2 and 5 of this order. In 
 Chancery, an application for a re-hearing has been made to the 
 judge who heard the cause. 
 
 As to the constitution of Divisional Courts, see ss. 40, 41, 43, 44 
 of the Judicature Act, 1873, ante, pp. 79 and 81. 
 
 2. A copy of such order shall he served on the opposite 
 party within four days from the time of the same being 
 made. 
 
 3. A neAV trial shall not be granted on the ground of 
 misdirection or of the improper admission or rejection of 
 evidence, unless hi the opinion of the Court to Avhich the 
 application is made some substantial wrong or miscarriage 
 has been thereby occasioned in the trial of the action ; and 
 if it appear to such Court that such wrong or miscarriage 
 affects part only of the matter in controversy, the Court 
 may give final judgment as to part thereof, and direct a 
 new trial as to the other part only. 
 
 4. A new trial may lie ordered on any question hi an 
 action, whatever lie the grounds for the new trial, without 
 hiterfering with the finding or decision upon any other 
 •question. 
 
 Rules 3 and 4 introduce material changes. Hitherto a misdirec- 
 tion by the judge in point of law, or the improper admission or 
 rejection of evidence in any material matter, has been ground for a 
 new trial as of right. Under the first part of Rule 3 this practice is 
 changed. Again, it often happens that there may have been a mis- 
 carriage affecting only a part of the claim in question, and not at all 
 affecting the rest, or affecting some one question in the cause and not 
 at all another. Hitherto the Courts have only had the power to grant 
 a new trial of the action generally. Under these rules they can 
 grant a new trial as to so much of the matter as the miscarriage 
 affects. 
 
 5. An order to show cause shall be a stay of pro- 
 ceedings in the action, unless the Comt shall order that 
 it not be so as to the whole or any part of the action.
 
 FIRST SCHEDULE. RULES OF COURT. 2G9 
 
 ORDER XL. GrderXL 
 
 Motion for 
 
 Motion for Judgment. 
 
 2 ^. 1. Except where by the Act or by these Rules it is 
 
 V provided that judgment may be obtained in any other 
 
 manner, the judgment of the Court shall be obtained 
 
 by,motion for judgment. Cr^. ^ ^v/L^ si™-**^- ^Z-*-*- 
 
 Judgment may be obtained by default in various cases provided 
 for by the foregoing rules; Orders XIII., XXIX., XXXI., Ride 
 20, ante, pp. 185, 228, 238. Or judgment may be pronounced, or 
 directed to be entered, by the judge, at or after the trial ; Order 
 XXXVI., Rule 22, ante, p. 253. But there are many cases to 
 which neither of those methods applies. Default may be made in 
 pleadings, in a case not of such a simple character that the proper 
 judgment can be entered by the parties entitled themselves, without 
 the intervention of a Court ; the decision of the ("curt may 
 be necessary to say what the proper relief is ; see Order XXIX., 
 Rules 10, 11,13, ante, p. 229. The judge at the trial of the action may 
 not have ordered judgment to be entered, or he may have ordered 
 judgment to be entered for one side, with leave to the other side to 
 move to set it aside and enter some other judgment ; Order 
 XXXVL, Rule 22, ante, p. 253. Or he may have ordered judg- 
 ment to be entered absolutely ; but that judgment may be wrong 
 in law, having regard to the facts actually found ; post, Rules 4 and 
 5. Or there may not be one single trial of the action, but different 
 issues or questions may have been ordered to be determined in 
 different ways or at different times ; Order XXX VI., Ride 6, 
 ante, p. 250, Rule 7, post, p. 271. To any of such cases the present 
 order will apply, and the judgment of the Court may be obtained 
 upon motion. 
 
 As to the time of moving for judgment, see Ride 9 of this Order. 
 
 As to when the motion is to be for a rule to show cause, and 
 when not, see Rule 6 of this Order, and Order LIIL, Rule 2, post, 
 P. 295. 
 
 As to the practice on motions, see ibid. 
 
 2. Where at the trial of an action the Judge or a Referee 
 has ordered that any judgment be entered subject to leave 
 to move, the party to whom leave lias been reserved shall 
 set down the action on motion for judgment, and give 
 notice thereof to the other parties within the time limited 
 by the Judge in reserving leave, or if no time has been 
 limited, within ten days after the trial. The notice of 
 motion shall state, the grounds of ihe motion, and the 
 relief sought, and that the motion is pursuant to. leave 
 
 ved. 
 
 3. Where at the trial of an action the Judge oi Referee 
 abstains from directing any judgment to be entered, the 
 
 plaint ill' may set down the act ion on motion for judgment. 
 If he does not so set it down and give notice thereof to
 
 270 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order XL. 
 Moti m for 
 Judgment. 
 
 
 the other parties within ten days after the trial, any defen- 
 dant may set down the action on motion for judgment, 
 and give notice thereof to the other parties. 
 
 See Order XXXVI.. Rule 22, ante, p. 253. 
 
 Under the practice hitherto in force in the Common Law Courts, 
 although a point were reserved by the judge at the trial, the motion 
 to the Court in pursuance of it could only be for a rule nisi in the 
 first instance. Now by Order LIIL, Rule 2, and the above rules, 
 such motion will be made for a rule absolute, and will be made on 
 notice simply. And hitherto the motion for a ride nisi has been, as 
 will still substantially be the case with rules for new trials, within 
 four days if the trial were in term, within the first four days of the 
 next term if the trial were not in term. Under these rules the 
 motion for judgment must be entered and notice of it given within 
 tun days after the trial, unless the judge limits a different time, 
 whether the Court is sitting or not. 
 
 4. "Where at the trial of an action hefore a jury the 
 Judge has directed that any judgment he entered, any 
 party may, without any leave reserved, move to set aside 
 such judgment, and enter any other judgment, on the 
 ground that the judgment directed to he entered is wrong 
 by reason of the Judge having caused the finding to he 
 entered wrongly, with reference to the finding of the jury 
 upon the question or questions submitted to them. 
 
 5. Where at the trial of an action the Judge or a Eeferee 
 has directed that any judgment be entered, any party may, 
 without any leave reserved, move to set aside such judg- 
 ment, and to enter any other judgment, on the ground 
 that upon the finding as entered the judgment so directed 
 is wrong. 
 
 According to the practice of the Common Law Courts hitherto, 
 unless leave were reserved by the judge at the trial, any party 
 dissatisfied with the trial could, under any circumstances, only move 
 for a new trial, never for a verdict or judgment. The above two 
 rules alter this practice in two instances. It may often happen that 
 the issue agreed upon may be general in its terms, for example, 
 partnership or no partnership at a given time. When the case is 
 fully gone into it may be found that the cpiestion the jury have 
 really to determine is some smaller one, say for instance the 
 date of execution of a particular deed. Having taken the opinion 
 of the jury upon this last question, it may become the duty of the 
 judge to construe the deed and direct the finding upon the issue to be 
 entered accordingly. And upon this finding the result of the cause 
 may depend. Again when all the issues have been found the judge 
 may, under Order X^XVL, Rule 22, direct such judgment to be 
 'i:t< red as any party is by law entitled to. In either of these cases, 
 if the judge is mistaken his mistake may under the above rules 
 be corrected without leave reserved, and without a new trial. 
 
 G. On every motion made under either of the last two 
 preceding Hides, the order shall bean order to show cause,
 
 FIRST SCHEDULE. RULES OF COURT. 271 
 
 and shall be returnable in eight days. The motion shall Order XL. 
 be made within four days after the trial if the Divisional judgment! 
 Court is then sitting, or within the first four days after the 
 commencement of the sitting of the Divisional Court 
 next after the trial, or within such extended time as a 
 Court or Judge may allow. 
 
 Motion for judgment will, in cases other than those provided for by 
 this rule, be upon notice without any rule to show cause ; Order LIIL, 
 Rule 2. A motion for a new trial will, under Order XXXIX., 
 Rule 1, be for a rule to show cause. 
 
 7. Where issues have been ordered to be tried, or issues 
 or questions of fact to be determined in any manner, the 
 plaintiff may set down the action on motion for judgment 
 as soon as such issues or questions have been determined. 
 If he does not so set it down, and give notice thereof to the 
 other parties within ten days after his right so to do has 
 arisen, then after the expiration of such ten days any 
 defendant may set down the action on motion for judg- 
 ment, and give notice thereof to the other parties. 
 
 8. Where issues have been ordered to be tried, or issues 
 or questions of fact to be determined in any manner, and 
 some only of such issues or questions of fact have been 
 tried or determined, any party who considers that the 
 result of such trial or determination renders the trial or 
 determination of the others of them unnecessary, or 
 renders it desirable that the trial or determination thereof 
 should be postponed, may apply to the Court or a Judge 
 for leave to sit down the action on motion for judgment, 
 without wailing for such trial or determination. And the 
 Court or Judge may, if satisfied of the expediency 
 thereof, give such leave, upon such terms, if any, as shall 
 appear just, and may give any directions which may 
 appear desirable as to postponing the trial of the other 
 questions of fad. 
 
 9. No action shall, except by leave of the Court or a 
 Judge, lie set down on motion for judgment, after the ex- 
 piration of one year from the time when the party seeking 
 to set down the' same first became entitled .so to do. 
 
 10. Upon a motion llor judgment, or for a new trial, 3 ££_/). /o£ 
 the Court may, if satisfied that it has he fore it all the 
 material- necessary for finally determining the questions 
 
 in dispute, or any of them, or for awarding any relief 
 sought, give judgment accordingly, or may, if it shall be
 
 272 SUPREME COURT OF JUDICATURE- ACT, 1875. 
 
 Order XL. of opinion that it has not sufficient materials before it to 
 
 jud"men°t r enable it to give judgment, direct the motion to stand over 
 
 for further consideration, and direct such issues or questions 
 
 to be tried or determined, and such accounts and inquiries 
 
 to be taken and made as it may think fit. 
 
 11. Any party to an action may at any stage thereof t 
 
 -. apply to the Court or a Judge for such order as he may r 
 
 it /^£ upon any admissions of fact in the pleadings , be entitled 
 
 -J ' to, without waiting for the Vletermniatfon of any other 
 
 *" - question between the parties. The foregoing Rules of this 
 
 Order shall not apply to such applications, but any such 
 
 application may be made by motion, so soon as the right 
 
 of the party applying to the relief claimed has appeared 
 
 from the pleadings. The Court or a Judge may, on airy 
 
 such application, give such relief, subject to such terms, if 
 
 any, as such C ourt or Judge may think_fit. JZ. 
 
 Order XLI. ORDER XLI. 
 
 Entry of 
 
 Judgment. 
 
 Entry of Judgment. 
 
 1. Every judgment shall be entered by the proper 
 officer in the book to be kept for the purpose. The 
 party entering the judgment shall deliver to the officer a 
 copy of the whole of the pleadings in the action other 
 than any petition or summons ; such copy shall be in 
 print, except such parts (if any) of the pleadings as are by 
 these Rides permitted to be written : Provided that no 
 copy need be delivered of any pleading a copy of which 
 has been delivered on entering any previous judgment in 
 such action. The forms in Appendix (D) hereto may be 
 used, with such variations as circumstances may require. 
 
 All pleadings are in the first instance to be delivered simply 
 between parties ; Order XIX., Ride 7, ante, p. 208, and not filed in 
 Court. By the present rule if the action goes on to judgment, and 
 there have been pleadings delivered, a copy of the pleadings is to be 
 delivered to the officer for the purpose, it may be presumed, of being 
 filed. 
 
 2. "Where any judgment is pronounced by the Court or 
 a Judge in Court, the entry of the judgment shall be dated 
 as of the day on which such judgment is pronounced, 
 and the judgment shall take effect from that date. 
 
 3. In all cases not within the last preceding rule, the 
 entry of jugdment shall be dated as of the day on which
 
 FIRST SCHEDULE. RULES OF COURT. 273 
 
 the requisite documents are left with the proper officer for Order xli. 
 the purpose of such entry, and the judgment shall take judgment 
 effect from that date. 
 
 4. Where under the Act or these Rules, or otherwise, it 
 is provided that any judgment may be entered or signed 
 upon the filing of any affidavit or production of any 
 document, the officer shall examine the affidavit or docu- 
 ment produced, and if the same he regular and contain all 
 that is by law required he shall enter judgment accor- 
 dingly. 
 
 5. "Where by the Act or these Rides, or otherwise, any 
 judgment may be entered pursuant to any order or certi- 
 ficate, or return to any writ, the production of such order 
 or certificate sealed with the seal of the Court, or of such 
 return, shall be a sufficient authority to the officer to enter 
 judgment accordingly. 
 
 6. Any judgment of nonsuit, unless the Court or a 
 Judge otherwise directs, shall have the same effect as a 
 judgment upon the merits for the defendant ; but in any 
 case of mistake, surprise, or accident, any judgment of 
 nonsuit may be set aside on such terms, as to payment of 
 costs and otherwise, as to the Court or a Judge shall seem 
 just._ 
 
 This is a material change. Hitherto a judgment of non-suit left 
 the plaintiff free to commence another action for the same cause. 
 See note to Order XXIII., ante, p. 221. 
 
 ORDER XLII. order XLir. 
 
 Execution. 
 
 Execution. 
 
 1 . A judgment for the recovery by or payment to any 
 person of money may be enforced by any of the modes by 
 which a judgment or decree for the payment of money of 
 any Court whose jurisdiction is transferred by the said 
 Act might have been enforced at the time of the passing 
 thereof. 
 
 2. A judgment for the payment of money into Court 
 may be enforced by writ of sequestration, or in cases in 
 which attachment is authorised by law, by attachment. 
 
 See Order XLIV., post,p. 279 ; Order XL VII., post, p. 286. 
 
 X 5
 
 274 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 OrderXLii. 3. A judgment for the recovery, or for the delivery of 
 
 Execution. ^ e p OSsess i on f land may be enforced by writ of possession. 
 
 4. A judgment for the recovery of any property other 
 than land or money may be enforced : 
 
 By writ f Or the delivery of the property : 
 By writ of attachment : 
 By writ of sequestration. 
 
 As to writ of delivery see Order XLIX., post, p. 287 ; as to 
 attachment, see Order XLIV., post, p. 279 ; and as to Sequestra- 
 tion, see Order XLVIL, post, p. 286. 
 
 5. A judgment requiring any person to do any act other 
 than the payment of money, or to abstain from doing any- 
 thing, may be enforced by writ of attachment, or by 
 
 committal. 
 
 G. In these Bules the term " writ of execution " shall 
 include writs of fieri facias, capias, elegit, sequestration, 
 and attachment, and all subsequent writs that may issue 
 for giving effect thereto. And the term "issuing execu- 
 tion against any party " shall mean the issuing of any 
 such process against his person or property as under the 
 preceding Bides of tins Order shall be applicable to the 
 case. 
 
 7. "Where a judgment is to the effect that any party is 
 entitled to any relief subject to or upon the fiilfilnient of 
 any condition or contingency, the party so entitled may, 
 upon the fulfilment of the condition or contingency, and 
 demand made upon the party against Avhoni he is entitled to 
 relief , apply to the Court or a Judge for leave to issue exe- 
 cution against such party. And the Court or Judge may, 
 if satisfied that the right to relief has arisen according to 
 the terms of the judgment, order that execution issue 
 accordingly, or may direct that any issue or question 
 necessary for the determination of the rights of the parties 
 be tried in any of the ways in which questions arising in 
 an action may be tried. 
 
 8. Where a judgment is against partners in the name of 
 the firm execution may issue in manner following : 
 
 ('(.) Against any property of the partners as such: 
 (b.) Against any person who has admitted on the 
 
 pleadings that he is, or has been adjudged to he a 
 
 partner :
 
 FIRST SCHEDULE. — RULES OF COURT. 275 
 
 ('-.) Against any person who has been served, as a Order xlii. 
 partner, with the writ of summons, and has failed xeci ^ lon - 
 to appear. 
 
 If the party who has obtained judgment claims to be 
 entitled to issue execution against any other person as being 
 a member of the firm, he may apply to the Court or a Judge 
 for leave so to do ; and the Court or Judge may give such 
 leave if the liability be not disputed, or if such liability 
 be disputed, may order that the liability of such person 
 be tried and determined in any manner in which any 
 issue or cpiestion in an action maybe tried and determined. 
 As to' proceedings by and against partners generally, see note to 
 Order IX., Rule 6, ante, p. 176. 
 
 9. Xo writ of execution shall be issued without the 
 production to the officer by whom the same should be 
 issued, of the judgment upon which the writ of execution 
 is to issue, or an office copy thereof, showing the date of 
 entry. And the officer shall be satisfied that the proper 
 time Las elapsed to entitle the judgment creditor to 
 execution. 
 
 10. Xo "writ of execution shall be issued without the 
 party issuing it, or his solicitor, filing a praecipe for that 
 purpose. The praecipe shall contain the title of the action, 
 the reference to the record, the date of the judgment, and 
 of the order, if any, directing the execution to be issued, 
 the names of the parties against whom, or of the firms 
 against whose goods, the execution is to be issued; and 
 shall be signed by the solicitor of the party issuing it, or 
 by the party issuing it, if he do so in person. The forms 
 
 OEDEE XLII.— Execution. 
 17. Order XLII., Eule 10, of "The Eules of the Order 
 Supra ime Court" shall be read as if the words "or on g^ 
 penall of had been inserted after the words "signed 
 
 by. ° 
 
 J , „„„,. u,iu uilkj vvnu onau miu unu tut; 
 
 same as agent for another solicitor, the name and place 
 of abode of such other solicitor shall also be indorsed 
 upon the writ ; and in case no solicitor shall be employed 
 to issue the writ, then it shall lie indorsed with a memo- 
 Ira expressing that the same has been sued out by 
 the plaintiff or defendant in person, as the case maybe, 
 mentioning the city, town, or parish, and also the name 
 of the hamlet, street, ami number of the house of such 
 plaintiff's or defendant's residence, if any such there be. 
 This is in accordance with R. G., H. T. 1853, Rule 73.
 
 27G SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order xlii. 12. Every writ of execution shall bear date of the day 
 Execution. Qn w j 1 ^ c ] 1 ft fa i ssue d. The forms in Appendix (F) hereto 
 
 may be used, with such variations as circumstances may 
 
 require. 
 
 It is so provided as to all writs by Order II., Rule 8, ante, p. 164. 
 
 13. In every case of execution the party entitled to 
 execution may levy the poundage, fees, and expenses of 
 execution, over and above the sum recovered. 
 
 This is taken from the C. L. P. Act, 1852, s. 123. 
 
 14. Every writ of execution for the recovery of money 
 shall be indorsed with a direction to the sheriff, or other 
 officer or person to whom the writ is directed, to levy the 
 money really due and payable and sought to be recovered 
 under the j udgment, stating the amount, and also to levy 
 interest thereon, if sought to be recovered, at the rate of 
 4/. per cent, per annum from the time when the judgment 
 was entered up, provided that in cases where there is an 
 agreement between the parties that more than 41. per 
 cent, interest shall be secured by the judgment, then the 
 indorsement may be accordingly to levy the amount of 
 interest so agreed. 
 
 This is in accordance with R. G., H. T. 1853, Ride 76. 
 
 15. Every person to whom any sum of money or any 
 costs shall be payable under a judgment, shall immediately 
 after the time when the judgment was duly entered, be 
 entitled to sue out one or more writ or writs of fieri facias, 
 or one or more wrjt or writs of elegit to enforce payment 
 thereof, subject nevertheless as follows : 
 
 (ft.) If the judgment is for payment within a period 
 therein mentioned, no such writ as aforesaid shall 
 be issued until after the expiration of such period. 
 
 (6.) The Court or Judge at the time of giving judgment, 
 or the Court or a Judge afterwards, may give leave 
 to issue execution before, or may stay execution 
 until any time after the expiration of the periods 
 hereinbefore prescribed. 
 
 Hitherto, where judgment followed upon the verdict of a jury, 
 execution could not issue till fourteen days after verdict, unless the 
 judge at the trial, or the Court or a judge afterwards ordered it to 
 issue earlier ; C. L. P. Act, 1852, s. 120 ; R. G., H. T. 1853, Rule 
 57. It might be stayed for any longer period. 
 
 Under the new provision, in all cases alike, the judge at the trial 
 may order judgment to be entered ; Order XXXVI., Rule 22, ante, 
 p. 253. If, as will be the case on circuit and at the Nisi Prius 
 sittings in London and Middlesex, the officer in Court is not the 
 officer by whom judgments are entered, judgment will be entered
 
 FIRST SCHEDULE. RULES OF COURT. 277 
 
 at the proper office on the production of the associate's certi- OrderXLII. 
 ficate of the judge's directions ; Order XXXVI., Rules 23, 24, 25, Execution. 
 ante, p. 255 ; Order XLL, ante, p. 272. And, by the above rule, 
 execution may issue as soon as judgment is entered. No fixed 
 interval is provided for between any of these successive steps. It 
 would appear, therefore, to be necessary for the future that, in all 
 cases, any one wishing to avoid immediate execution should apply 
 for a stay of execution under the above rule. 
 
 16. A writ of execution if unexecuted shall remain in 
 force for one year only from its issue, unless renewed in 
 the manner hereinafter provided ; but such writ may, at 
 any time before its expiration, by leave of the Court or a 
 Judge, be renewed, by the party issuing it, for one year 
 from the date of such renewal, and so on from time to 
 time during the continuance of the renewed writ, either 
 by being marked with a seal of the Court bearing the 
 date of the day, month, and year of such renewal, or by 
 such party giving a written notice of renewal to the 
 sheriff, signed by the party or his attorney, and bearing 
 the like seal of the Court ; and a writ of execution so 
 renewed shall have effect, and be entitled to priority, 
 according to the time of the original delivery thereof. 
 
 This rule is in substance the same as s. 124 of the C. L. P. Act, 
 1852. It will be observed that a writ of execution may be renewed 
 by leave without the restrictions imposed in the case of a writ of 
 summons under the new practice ; Order VIII., Rule 1, ante, p. 174. 
 
 17. The production of a writ of execution, or of the 
 notice renewing the same, purporting to be marked with 
 such seal as in the last preceding rule mentioned, showing 
 the same to have been renewed, shall be sufficient evidence 
 of its having been so renewed. 
 
 This is the same as s. 125 of the C. L. P. Act, 1852. 
 
 18. As between the original parties to a judgment, exe- 
 cution may issue at any time within six years from the 
 recovery of the judgment. 
 
 This is in substance the same as s. 128 of the C. L. P. Act, 1852. 
 
 19. Where six years have elapsed since the judgment, 
 or any change has taken place by death or otherwise in the 
 parties entitled or Liable to execution, the party alleging 
 himself to be entitled to execution may apply to the Court 
 or a Judge for leave to issue execution accordingly. And 
 such Court or Judge may, if satisfied that the party so 
 applying is entitled to issue execution, make an order to 
 that effect, or may order that any issue or question neces- 
 sary to determine the rights of the parties, shall be tried 
 in any of the ways in which any question in an action may
 
 278 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 OrderXLii. be tried. And in either case such Court or Judge may 
 xecunon. i m p 0se guc | 1 terms as to costs or otherwise, as shall seem 
 just. 
 
 The practice in reviving pecuniary judgments for the purpose of 
 execution, after the lapse of six years or the death of parties, has 
 hitherto been governed by ss. 129 to 134 of the C. L. P. Act, 1852. 
 Under those provisions the party seeking execution could apply to 
 the Court or a judge for leave to enter a suggestion to the effect that 
 such party was shown to be entitled to execution, and to allow exe- 
 cution to issue. And if the case was made clear, the suggestion and 
 the consequent execution were allowed. If the case were not made 
 clear, the suggestion and execution consequent upon it were dis- 
 allowed, and the party was left to his writ of revivor. This was a 
 new action in which by the ordinary processes of pleading the 
 questions in dispute were brought to issue and decided. 
 
 The above rule preserves alternative processes, according as the 
 right to execution is or is not sufficiently clear to be enforced 
 summarily by a judge. But a somewhat simpler process is provided. 
 If the case be clear the judge may order execution to issue. If it 
 be not he may direct an issue to try the right. 
 
 20. Every order of the Court or a Judge, whether in an 
 action or matter, may he enforced in the same manner as a 
 judgment to the same effect. 
 
 A rule of court has hitherto in a Common Law Court been 
 enforceable by attachment for contempt. And as since the Debtors' 
 Act, 1869, 32 & 33 Vict. c. 62, a debtor cannot generally be arrested 
 for debt, there has been practically no direct means of enforcing a 
 rule for payment of money. Execution may for the future issue 
 upon it. 
 
 21. In cases other than those mentioned in Eule 18 
 any person not being a party in an action, who obtains 
 any order or in whose favour any order is made, shall be 
 entitled to enforce obedience to such order by the same 
 process as if he were a party to the action ; and any person 
 not being a party in an action, against whom obedience to 
 any judgment or order may be enforced, shall be liable to 
 the same process for enforcing obedience to such judgment 
 or order as if he were a party to the action. 
 
 22. Xo proceeding by audita querela shall hereafter be 
 used ; but any party against whom judgment has been 
 given may apply to the Court or a Judge for a stay of 
 exeeution or other relief against such judgment, upon the 
 ground of facts which have arisen too late to be pleaded : 
 and the Court or Judge may give such relief and upon 
 such terms as may be just. 
 
 Audita querela was a process in the nature of an action, whereby 
 a party against whom judgment had been obtained might prevent 
 execution on the ground of some matter of defence which there was
 
 FIRST SCHEDULE. RULES OF COURT. 279 
 
 no opportunity of raising in the original action ; see Turner v. Davies, 2 OrderXLII. 
 Notes to Williams' Saunder, p. 439. By R G., H. T., 1852, Rule 79, Execution, 
 this process could only be issued by leave of the Court or a judge; 
 and it has been almost wholly disused. 
 
 23. Nothing in any of the Eules of this Order shall take 
 away or curtail any right heretofore existing to enforce or 
 give effect to any judgment or order in any manner or 
 against any person or property whatsoever. 
 
 24. Nothing in tins Order shall affect the order in which 
 writs of execution may he issued. 
 
 ORDER XLIII. Order 
 
 XLIII. 
 
 "Writs of Fieri Facias and Elegit. FieriVadas 
 
 1. Writs of fieri facias and of elegit shall have the 
 same force and effect as the like writs have heretofore had, 
 and shall he executed in the same manner in which the 
 like writs have heretofore heen executed. 
 
 2. Writs of venditioni exponas, distringas nuper vice- 
 coniitem, fieri facias de "bonis ecclesiasticis, sequestrari facias 
 de "bonis ecclesiasticis, and all other writs in aid of a writ 
 of fieri facias or of elegit, may he issued and executed in 
 the same cases and in the same manner as heretofore. 
 
 ORDER XLTV. gg^ 
 
 Attachment. 
 
 1. A v. rii of attachment shall have the same effect as a 
 writ of attachment issued out of the Court of Chancery 
 has heretofore had. 
 
 Attachment. 
 
 \OL$r*t 
 
 2. No writ of attachmenl shall be issued without the«V 
 leave of the Court or a Judge, to be applied for on notice 
 iw thi party against whom the attachment is to he issued. 
 
 An attachment is a writ directed to the sheriff, commanding him 
 
 to attach the person against whom it is issued, and have him before 
 
 ourt to answer his contempt. The writ must be returned by 
 
 riff, like other writs of execution. The practice in Chancery 
 
 has hitherto been governed by Order, 7th Jan., 1870. See 1 Dan. 
 
 Ch. I'r., pp. 907, ct acq., 5th edit. 
 
 The second of the above rules introduces a change in the Chancery 
 hi ; inasmuch as a writ can never, for the future, issue as of 
 tight without an order, granted after notice to the pai-ty. This has 
 been already the rule in the Common Law Courts, except in the case 
 of an attachment against a sheriff for disobeying an order to return 
 a writ, in which case the rule has been made absolute ex parte. See 
 11. C, E. T. 1353, Rule 168.
 
 280 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order XLV. 
 
 Attachment ORDER XLV. 
 
 of Debts. 
 
 Attachment of Debts. 
 
 1. Where a judgment is for the recovery by or payment 
 to any person of money, the party entitled to enforce it 
 may apply to the Court or a Judge for an order that the 
 judgment debtor lie orally examined as to whether any 
 and what debts are owing to him, before an officer of the 
 court, or such other person as the Court or Judge shall 
 appoint ; and the Court or Judge may make an order for 
 the examination of such judgment debtor, and for the 
 production of any books or documents. 
 
 The power of enforcing judgments by attaching debts due by third 
 persons to the judgment debtor has existed in the Common Law 
 Courts since 1854. It was given by the C. L. P. Act, 1854 ; and the 
 procedure has hitherto been governed in part by that Act, and in 
 part by the C. L. P. Act, 1860. The present order applies the 
 practice of attachment of debts to all divisions of the Court. 
 The several rules are in substance a reproduction of the sections 
 relating to the subject in the C. L. P. Acts of 1854 and 1860 ; with 
 the exception that s. 28 of the C. L. P. Act, 1860, which enabled a 
 judge to refuse to interfere by attachment where, from the smallness 
 of the amount to be recovered, or of the debt sought to be attached, 
 or otherwise, the remedy sought would be worthless or vexatious, is 
 not repeated. 
 
 The above ride is taken from s. 60 of the C. L. P. Act, 1854. 
 
 It has been !; :ld under that section that there was no power to 
 examine an officer of a Corporation as to debts due by it to a judg- 
 ment debtor; Dickson v. Neath and Brecon Ry. Co., Law Rep., 
 4 Ex. 87. 
 
 2. The Court or a Judge may, upon the ex parte appli- 
 cation of such .judgment creditor, either before or after 
 such oral examination, and upon affidavit by himself or 
 
 his solicitor stating that judgment has been recovered, and 
 that it is still unsatisfied, and to what amount, and that 
 any other person is indebted to the judgment debtor, and 
 is within the jurisdiction, order that all debts owing or 
 accruing from such third person (hereinafter called the 
 garnishee) to the judgment debtor shall be attached to 
 answer the judgment debt; and by the same or any sub- 
 sequent order it may be ordered that the garnishee shall 
 appear before the Court or a Judge or an officer of the 
 Court, as such Court or Judge shall appoint, to show cause 
 why he should not pay the judgment creditor the debt 
 due from him to the judgment debtor, or so much thereof 
 as may be sufficient to satisfy the judgment debt. 
 
 This is taken from s. 61 of the C. L. P. Act, 1854.
 
 FIRST SCHEDULE. — RULES OF COURT. 281 
 
 What the Court or judge is empowered to attach is debts owing or Order XLV. 
 accruing to the judgment creditor. Rent due by a tenant is a debt Attachment 
 attachable ; Mitchell v. Lee, Law Rep., 2 Q. B. 259. So is money in of De ^ s - 
 the hands of a sheriff the proceeds of an execution levied by him ; 
 Murray v. Simpson, 8 Ir. C. L., App. xlv. Upon a judgment against 
 a company, money in the hands of an official liquidator may be 
 attached ; ex parte Turner, 2 D. F. & J. 354. Upon a judgment against 
 an executor, as such, a debt due to the testator's estate may be 
 attached ; Burton v. Roberts, 6H.&N. 93 ; Fowler v. Roberts, 2 Giff. 
 226. And where such an order of attachment has been made its 
 enforcement will not be restrained on the ground that a decree for 
 administration has been made after the order, or it would seem 
 after the judgment, though before the order, ibid. 
 
 After the analogy of afi.fa., under which the goods of any one 
 of those against whom it is issued may be taken, a debt due to 
 one of several judgment debtors may be attached to satisfy the 
 judgment against all ; Miller v. Myna, 1 E. & E. 1075. 
 
 Unliquidated damages cannot be attached : Johnson v. Diamond, 
 11 Ex. 73 ; even though their amount has been ascertained by the 
 verdict of a jury, but no judgment yet had ; Jones v. Thompson, 
 E. B. & E. 63. Independently of the Judicature Act, 1873, ss. 24 and 
 25, it has been held that a debt can only be attached to which 
 the judgment debtor is himself entitled both at law and in equity, 
 and not one which he has assigned ; Hirsch v. Coates, 18 C. B. 757. 
 As to pensions and superannuation allowances see Innes v. E. I. 
 Company, 17 C. B. 351 ; Dent v. Dent, Law Rep. 1 P. & D. 366 ; 
 Ex parte Hawker, Law Rep. 7 Ch. 214. 
 
 By the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), s. 233, 
 seamen's wages whether due or accruing cannot be attached. Nor, 
 by 33 & 34 Vict. c. 30, can workmen's wages. 
 
 The section in express terms applies to debts accruing as well as 
 debts actually owing ; see Sparks v. Younye, 8 Ir. C. L. 251 ; Tapp 
 v. Jones, Q. B. E. T. 1875. 
 
 The section authorises a judge to do two things — first, to attach 
 the debt, as to the effect of which see the next rule ; secondly, to 
 order its payment to the judgment creditor. This latter power may 
 be exercised by the same order which attaches the debt, or by a sub- 
 sequent one. It may also be exercised with respect to debts accruing 
 as well as debts owing. Such debts may be ordered to be paid 
 when they fall due ; and it is not necessary to wait and obtain a 
 fresh order for payment of each as it becomes payable ; Tapp v. 
 Jones, Q. B. E. T. 1875. 
 
 3. Service of an order that debts due or accruing to the 
 judgment debtor shall he attached, or notice thereof to the. 
 garnishee, in such manner as the Court or Judge shall 
 direct, shall hind such debts in his hands. 
 
 This is taken from s. 62 of the C. L. P. Act, 1854. 
 
 The effect of the words " shall bind such debts " has often under- 
 gone discussion. Under the Bankruptcy Act, 1 849, it was held that a 
 judgment creditor who had obtained an order attaching a debt, or 
 :ui order for payment, was a creditor holding security, but not a cre- 
 ditor having a lien within the meaning of s. 184 of that Act ; and that, 
 therefore, if bankruptcy intervened before actual payment the assignee, 
 not the jinl iim ill, creditor, was entitled ; Holmes v. Tutton, 5 E. & B. 
 65; Turner v. Jones, 1 H. &N. 878 ; Tilbury v. /Iron;,, 30 L. J. (Q.B.) 
 46. But a payment by the garnishee in obedience to an order to pay,
 
 282 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order XLV. and to avoid an execution, where he either had no notice of adjudi- 
 Attachment cation in bankruptcy, or what was the same thing the registration of 
 of Debts. a jjgg^ { arrangement under the Bankruptcy Act, 1861, or where he 
 had no opportunity of applying to set aside the order, was a good 
 payment as far as he was concerned ; Wood v. Dunn, Law Rep., 
 2 Q. B. 73. The enactments of the Bankruptcy Act, 1869, as to 
 the rights of secured creditors, are entirely different from those 
 in force, when the above cited cases were decided ; Slater v. Pinder, 
 Law Rep., 7 Ex. 95, Expartt Roche, Law Rep., 6 Ch. 795. And under 
 the present law a creditor who has obtained a garnishee-order is in 
 the same position as an execution creditor who has seized. He has 
 a charge on the debt which is good against the trustee in bank- 
 ruptcy ; Emanuel v. Bridger, Law Rep. 9 Q. B. 286; Stevens v. 
 Philips, Law Rep. 10 Ch. 417. Ex parte Green/way, Law Rep. 16 
 Eq. 619, seems to be overruled. 
 
 The debts are bound from the date of the order of attachment, 
 and no set-off, and nothing affecting the state of the accounts between 
 the garnishee and the judgment debtor arising after that date can 
 be taken into account ; Tapp. v. Jones, Q. B. E. T. 1875 ; though it 
 would seem that a set-off existing at that date might avail; Sa't 
 v. Seaton an B er By. Co., Law Rep. 10 Q. B. 28. The garnishee 
 cannot set-off a debt due to him by the judgment creditor; Ibid. 
 
 As to the effect of an attachment upon an attorney's lien, see 
 Hough v. Edward, 1 H. & X. 171 ; Eisdell v. Coningham, 28 L. J. Ex. 
 213 ; Sympson v. Prothero, 26 L. J. Ch. 671. 
 
 The order binds the defendant in the hands of the garnishee only : 
 and, therefore, if the amount has been paid into the Court of 
 Chancery, it is not bound, and that Court will not interfere to give 
 effect to the order ; Stevens v. Philips, ubi supra. 
 
 4. If tin- garnishee does not forthwith pay into court 
 the- amount due from him to the judgment debtor, or an 
 amount equal to the judgment debt, and does not dispute 
 the debt due or claimed to be due from him to the 
 judgment debtor, or if he does not appear upon summons, 
 then the Court or Judge may order execution to issue, 
 and it may issue accordingly, without any previous writ or 
 proces . to li w the amount due from such garnishee, or so 
 much thereof as may be sufficient to satisfy the judgment 
 debt. 
 
 This is taken from s. 63 of the C. L. P. Act, 1854. 
 
 5. If the garnishee disputes bis liability, the Court or 
 Judge instead of making an order that execution shall 
 issue, may order that any issue or question necessary for 
 determining his liability be tried or determined in any 
 manner in which any issue or question in an action may 
 be tried or determined, 
 
 This is taken from s. 64 of the C. L. P. Act, 1S54. 
 
 6. Whenever in proceedings to obtain an attachment of 
 del its it is suggested by the garnishee that the debt sought 
 to be attached belongs to some third person, or that any
 
 FIRST SCHEDULE. RULES OF COURT. 283 
 
 third person has a lien or charge upon it, the Court or Order xlv. 
 Judge may order such third person to appear, and state ^Deb™ 6 "' 
 the nature and particulars of his claim upon such debt. 
 This is taken from s. 29 of the C. L. P. Act, I860. 
 
 7. After hearing the allegations of such third person 
 under such order, and (if any other person whom by the 
 same or any subsequent order the Court or Judge may 
 order to appear, or in case of such third person not 
 appearing when ordered, the Court or Judge may order 
 execution to issue to levy the amount due from such 
 garnishee, or any issue or question to be tried or 
 mined according to the preceding Rules of tins Order, 
 and may bar the claim of such third person, or make such 
 other order; as such Court or Judge shall think fit, upon 
 such terms, in all cases, with respect to the lien or charge 
 (if any) of such third person, and to costs, as the Court 
 or Judge shall think just and reasonable. 
 This is taken from s. 30 of the C. L. P. Act, 1860. 
 
 S. Payment made by, or execution levied upon the 
 garnishee under any such proceeding as aforesaid shall be 
 a valid discharge to him as against the judgment debtor, 
 to the amount paid or levied, although such proceeding- 
 may be set aside, or the judgment reversed. 
 This is taken from s. 65 of the C. L. P. Act, 1854. 
 
 9. There shall be kept by the proper officer a debt 
 attachment book, and in such book entries shall be made 
 of the attachment and proceedings thereon, with names, 
 dates, and statements of the amount recovered, and other- 
 vise ; and copies of any entries made therein may be taken 
 by any person upon application to the proper officer. 
 
 This is taken from s. 66 of the C. L. P. Act, 1854. 
 
 10. The costs of any application for an attachment of 
 debts, and of any proceedings arising from, or incidental 
 to such application, shall lie in the discretion of the Court 
 or a Judge. 
 
 This is taken from s. 67 of the C. L. P. Act, 1854. 
 
 ORDER XLVI. Order 
 
 r . o o -r-. Charging of 
 
 Charging of Stock or .sharks and Distringas. stock or 
 
 SI mres and 
 
 1. An order charging stock or shares may be made by Distringas, 
 any Divisional Court, or byany Judge, and the proceedings /££7Qr ^
 
 284 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order 
 XLVI. 
 
 Charging of 
 Stock or 
 Shares and 
 Distringas. 
 
 Judgment, 
 a charge on 
 public stock 
 and shares in 
 companies, 
 &c, by 
 order of a 
 judge. 
 
 Order of 
 judge to be 
 made in first 
 instance 
 ex parte 
 and on no- 
 tice to the 
 bank or com- 
 pany to 
 operate as a 
 distringas. 
 
 Order may 
 be dis- 
 charged or 
 
 varied. 
 
 for obtaining such order shall be such as are directed, and 
 the effect shall be such as is provided by 1 & 2 Vict. c. 
 110, ss. 14 and 15, and 3 & 4 Vict. c. 82. s. 1. 
 
 Byl &2 Vict. c. 110, s. 14:— 
 
 " If any person against whom any judgment shall have been 
 entered up in any of Her Majesty's superior Courts at West- 
 minster shall have any Government stock, funds, or annuities, 
 or any stock or shares of, or in any public company in England 
 (whether incorporated or not), standing in his name in his own right, 
 or in the name of any person in trust for hiin, it shall be lawful 
 for a judge of one of the superior Courts, on the application of 
 any judgment creditor, to order that such stock, funds, annuities, 
 or shares, or such of them or such part thereof respectively as he 
 shall think fit, shall stand charged with the payment of the amount 
 for which judgment shall have been so recovered, and interest 
 thereon ; and such order shall entitle the judgment creditor to all 
 such remedies as he would have been entitled to if such charge had 
 been made in his favour by the judgment debtor, provided that no 
 proceedings shall be taken to have the benefit of such charge until 
 after the expiration of six calendar months from the date of such 
 order." 
 
 By s. 15 : — "Every order of a judge charging any Government 
 stock, funds, or annuities, or any stock or shares in any public com- 
 pany, under this Act, shall be made, in the first instance, ex parte, and 
 without any notice to the judgment debtor, and shall be an order to 
 show cause only ; and such order, if any Government stock, funds, or 
 annuities, standing in the name of the judgment debtor in his own 
 right, or in the name of any person in trust for him, is to be affected 
 by such order, shall restrain the Governor and Company of the 
 Bank of England from permitting a transfer of such stock in the 
 meantime, and until such order shall be made absolute or dis- 
 charged ; and if any stock or shares of or in any public company, 
 standing in the name of the judgment debtor in his own rights, or 
 in the name of any person in trust for him, is or are to be affected 
 by any such order, shall in like manner restrain such public com- 
 pany from permitting a transfer thereof ; and that if, after notice 
 of such order to the person or persons to be restrained thereby, or 
 in case of corporations to any authorized agent of such coloration, 
 and before the same order shall be discharged or made absolute, 
 such corporation, or person or persons, shall permit any such transfer 
 to be made ; then, and in such case, the corporation, or person or 
 persons so permitting such transfer, shall be liable to the judgment 
 creditor for the value or the amount of the property so charged and 
 so transferred, or such part thereof as may be sufficient to satisfy 
 his judgment ; and that no disposition of the judgment debtor in 
 the meantime shall be valid or effectual as against the judgment 
 creditor ; and, further, that unless the judgment debtor shall, within 
 a time to be mentioned in such order, show to a judge of one of the 
 said superior Courts sufficient cause to the contrary, the said order 
 shall, after proof of notice thereof to the judgment debtor, his 
 attorney, or agent, be made absolute ; provided that any such judge 
 shall, upon the application of the judgment debtor, or any person 
 interested, have full power to discharge or vary such order, and to 
 award such costs upon such application as he may think fit." 
 
 By 3 & 4 Vict. c. 82, s. 1, passed to remove doubts as to
 
 FIRST SCHEDULE. — RULES OF COURT. 28-J 
 
 the construction of the former Act, it is enacted that " The Order 
 aforesaid provisions of the said Act shall he deemed and taken XLVI. 
 to extend to the interest of any judgment debtor, whether ^' har g in g ° { 
 in possession, remainder, or reversion, and whether vested or shares and 
 contingent, as well in any such stocks, funds, annuities, or shares Distringas, 
 as aforesaid, as also in the dividends, interest or such produce of 
 any annual stock, funds, annuities or shares ; and whenever any 
 such judgment debtor shall have any estate, right, title, or interest, 
 vested or contingent in possession, remainder, or reversion, in, 
 to, or out of any such stocks, funds, annuities, or shares, 
 as aforesaid, which now are or shall hereafter be standing in 
 the name of the Accountant-General of the Court of Chancery, 
 or the Accountant-General of the Court of Exchequer, or in, to, 
 or out of the dividends, interest, or annual produce thereof, it 
 shall be lawful for such judge to make any order as to such stock, 
 funds, annuities, or shades, or the interest, dividends, or annual pro- 
 duce thereof, in the same way as if the same had been standing in 
 the name of a trustee of such judgment debtor ; provided always, 
 that no order of any judge as to any stock, funds, annuities, or shares 
 standing in the name of the Accountant-General of the Court of 
 Chancery, or the Accountant-General of the Court of Exchequer, or 
 as to the interest, dividends, or annual produce thereof, shall pre- 
 vent the Governor and Company of the Bank of England, or any 
 public company, from permitting any transfer of such stocks, funds, 
 annuities, or shares, or payment of the interest, dividends, or annual 
 produce thereof, in such manner as the Court of Chancery or the 
 Court of Exchequer respectively may direct, or shall have any 
 greater effect than if such debtor had charged such stock, funds, 
 annuities, or shares, or the interest, dividends, or annual produce 
 thereof, in favour of the judgment creditor, with the amount of the 
 sum to be mentioned in any such order." 
 
 The things which may be charged under these sections are stock 
 or shares which the judgment debtor has standing in his own name 
 in his own right, or in the name of any person in trust for him 
 (under the first Act), and (under the second) the interest of the 
 judgment debtor whether in possession, remainder, or reversion, 
 vested or contingent, in such stock, funds, annuities, or shares, or in 
 the dividends, interest, or annual produce of them. Such property 
 standing in the name of the Accountant-General of the Court of 
 Chancery in which the judgment debtor had any interest was 
 also expressly included in the second Act. And s. (! of 35 & 36 
 Vict., c. 4i, seems to continue the same right as to shares in the 
 hands of the Paymaster-General, who now tills the place of the 
 Accountant-General. 
 
 In Watts v. Porter, 3 E. & B. 743, the majority of the Court of 
 Queen's Bench held that stock standing in the name of trustees for 
 the judgment debtor, but which he had mortgaged, though no 
 notice of the mortgage had been given to the trustees, might be 
 charged, so as to give the judgment creditor priority over the 
 mortgagee. But this view was disapproved in Beavan v. Lord 
 Oxford, 6 D. M. & C 507 ; see Kinderley v.Jervis, 22 73eav. 1. If, 
 notwithstanding the assignment, the judgment debtor still retains an 
 equitable interest, that interest at least may be charged ; Baker v. 
 Tynte, 2 E. & E. 897 ; Cragg v. Taylor, Law Rep., 2 Ex. 131. 
 But where a testatrix left her whole estate and effects to trustees in 
 trust to pay debts and legacies, with a direction to pay the legacies 
 as soon as her means could be converted into cash, and as to the 
 residue in trust for the judgment debtor and others, it was held
 
 286 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order 
 XLVI. 
 
 Charges of 
 Stock or 
 Shares and 
 Distringas. 
 
 /££.*$. 6 '30 
 
 that the judgment debtor, though interested in the proceeds of the 
 estate, was not interested in stock and shares of which the estate in 
 part consisted, so as to make them chargeable; Dixon v. Wrench, 
 Law Rep., 4 Ex. 154. In Fuller v. Earle, 7 Ex. 796, and Oragg v. 
 Taylor, Law Eep., 1 Ex. 148, it was held in Courts of Law that it 
 was no answer to an application to charge shares of which the judg- 
 ment debtor was the registered holder, to show that he held them 
 subject to trusts. But those cases only decided that a Court of Law 
 would make the charge, leaving a Court of Equity to give to it its 
 proper effect, and determine all questions of priority. See also 
 Rogers v. HoUoway, 5 M & G-. 292. For the future every Court must 
 recognise equitable rights incidentally appearing ; s. 24, sub-s. 4, of 
 the Judicature Act, 1S73, ante, p. 59. Whether this change may 
 affect thegranting of an order in such cases may give rise to aquestion. 
 
 Hitherto the application, if in aid of a Common Law judgment, 
 could only be made to a Common Law Judge ; a Judge in Chancery 
 had no jurisdiction : Miles v. Presland, 4 M. & Cr. 431. The above 
 rule is express that the application may be to any judge. Compare, 
 however, s. 11, sub-s. 1, of the Amendment Act, 1875, ante, p. 133. 
 
 A charging order when made absolute operates as frqm the date 
 of the order nisi, and binds the stock charged as from that date ; 
 Hull a v. Barry, Law Rep., 3 Ch; 452. A charging order upon 
 dividends of stock standing in the books of the Bank of England in 
 the names of legal owners in trust for the judgment debtor does not 
 throw any duty upon the Bank as to the distribution of the fund : 
 it is bound simply to pay to the legal owners ; Churchill v. Bank of 
 England, 11 M. & W. 323. 
 
 2. Any person claiming to be interested in any stock 
 transferable at the Bank of England standing in the name 
 of any other person may sue out a writ of distringas pur- 
 suant to the statute 5 Vict. c. 8, as heretofore. Such 
 writ to be issued out of any office of the High Court in 
 London, where writs of summons are issued. 
 
 The above ride as to distringas occurs amongst rules relating to 
 execution. But the process of distringas is in no sense of the nature 
 of execution. It is simply a process by which any person claiming 
 stock or shares may restrain the Bank of England or other company 
 from parting with the stock or shares or any dividend upon them. 
 The practical effect of a distringas is to secure that the property is 
 not dealt with without notice to the person putting on the distringas. 
 The writ was originally issued out of the Equity side of the Ex- 
 chequer. But when the equity jurisdiction of that Court was taken 
 away, the Act intended no doubt to be referred to in the above rule, 
 transferred the power of issuing it to the Court of Chancery. But 
 the rule speaks of 5 Vict. c. 8, by mistake, it would seem, for c. 5. 
 The practice is governed by the Act and by Order XXVII. of the 
 Consolidated Orders. See Morgan's Chancery Acts and Orders, 
 p. 508, 4th edit. ; 2 Daniel's Chancery Practice, 1537, 5th edit. 
 The above rule allows a distringas to be obtained in any division, but 
 it will be observed, only against the Bank of England. 
 
 Order 
 XLVII. 
 
 Writ of Se- 
 questration. 
 
 OEDEE XLVII. 
 Writ of Sequestration. 
 Where any person is by any judgment directed to pay
 
 FIRST SCHEDULE.- — RULES OF COURT. 287 
 
 money into Court or to do any other act in a limited time, Order 
 
 • YT VTT 
 
 and after due service of such judgment refuses or neglects writ of Se- 
 to obey the same according to the exigency thereof, the questration. 
 person prosecuting such judgment shall at the expiration 
 of the time limited for the performance thereof, he 
 entitled, without obtaining any order for that purpose, to 
 issue a writ of sequestration against the estate and effects 
 of such disobedient person. Such writ of sequestration 
 shall have the same effect as a writ of sequestration in 
 Chancery has heretofore had, and the proceeds of such 
 sequestration may be dealt with in the same manner as 
 the proceeds of writs of sequestration have heretofore been 
 dealt with, by the Court of Chancer}'. 
 
 A writ of sequestration is a writ directed to commissioners requir- 
 ing them to take possessson of all the property real and personal 
 of the person against whom it is issued. Originally it was a mere 
 process of contempt analogous to attachment, for compelling obe- 
 dience to the orders of the Court. But, upon final process, it has 
 long been the practice to apply the proceeds of the sequestration in 
 satisfaction of the liability in respect of which it issues. See 1 Dan. 
 Ch. Pr. pp. 912 et seq., 5th edit. 
 
 OEDEE XLVIII. Order 
 
 XLViir. 
 Writ of Possession. Session. 
 
 1. A judgment that a party do recover possession of 
 any land may be enforced by writ of possession in manner 
 heretofore used in actions of ejectment in the Superior 
 
 i s of Common Law. 
 For the form of this writ see No. 7, in Appendix F., post, p. 3S7. 
 
 2. Where by any judgment any person therein named 
 is directed 1 » > deliver up possession of any lands to some 
 other person, the person prosecuting such judgment shall, 
 without any order for that purpose, be entitled to sue out 
 a writ of possession on filing an affidavit showing line 
 service of such judgment and that the same lias not been 
 obeyed. 
 
 OEDEE XLIX. Order 
 
 XLIX. 
 
 Writ of Delivery. Delivery. 
 
 A writ for delivery of any property other than land or 
 money may be issued ami enforced in t lie manner heretofore 
 in use in actions of detinue in the Superior Courts of 
 Common Law.
 
 288 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order This writ was given by s. 78 of the C. L. P. Act 1854, which is as 
 
 XLIX. follows : — 
 
 Writ of ' ; The Court or a judge shall have power, if they or he see 
 
 e 1V ^P ' fit so to do, upon the application of the plaintiff in any action for the 
 detention of any chattel, to order that execution shall issue for the 
 return of the chattel detained, without giving the defendant the 
 option of retaining such chattel upon paying the value assessed, and 
 that if the said chattel cannot be found, and unless the Court or a 
 judge should otherwise order, the sheriff shall distrain the defendant 
 by all his lands and chattels in the said sheriff's bailiwick, till the 
 defendant render such chattel, or, at the option of the plaintiff that 
 he cause to be made of the defendant's goods the assessed value of 
 such chattel; provided that the plaintiff shall, either by the same or 
 a separate writ of execution, be entitled to have made of the 
 defendant's goods the damages, costs, and interest in such action." 
 For the form of this writ see ISTo. 8 in Appendix F., post, p. 387. 
 
 Order L. ORDER L. 
 
 Change of 
 
 Parties by 
 
 Death, &c. CHANGE OF PARTIES BY DEATH, &C. 
 
 x, u>**^- *4-jU*7**>- 1. An action shall not become abated by reason of the 
 -•4T^*y<% 4.<Z.2). marriage, death, or bankruptcy of any of the parties, if 
 /^4_ the cause of action survive or continue, and shall not 
 
 become defective by the assignment, creation, or devolu- 
 tion of any estate or title pendente lite. 
 
 Both in the Common Law Courts and in the Court of Chancery, 
 the old and inconvenient methods of making good a suit which has 
 become defective by reason of death or otherwise have long been 
 superseded by simple inexpensive methods of procedure. But the pro- 
 cedure has been different in the several courts. 
 
 In the Common Law Courts the practice has been governed by 
 ss. 135 to 142 of the C. L. P. Act, 1852, and s. 92 of the C. L. P. 
 Act, 1854. Under those enactments the procedure has varied 
 slightly according to the nature of the defect which has occurred, 
 and the stage at which it has occurred. In the case of death, the 
 plaintiff was empowered to enter a suggestion of the death, and 
 proceed with the action in the name of or against the proper parties. 
 And the truth of that suggestion might have been traversed and 
 tried. If the plaintiff omitted to enter the necessary suggestion, 
 the defendant might by summons recpiire him to do so, and in 
 default might do so himself. 
 
 In Chancery the matter has been governed by s. 52 of 15 & 16 
 Vict. c. 86, and Cons. Ord., Order XXXII, Eule 1. See notes thereto 
 in Morgan's Chancery Acts and Orders pp. 210 and 526, 4th edit. 
 
 The present Order adopts in substance the Chancery procedure. 
 
 There is nothing in the aliove rule to alter the existing law as to 
 what causes of action do and what do not survive. 
 
 Where after judgment it is merely desired to issue execution, and 
 rights or liabilities have become changed by death or otherwise, the 
 person seeking to issue execution may proceed under Order XLII.. 
 Eule 19, ante, -p. 27 7.
 
 FIRST SCHEDULE. — RULES OP COURT. 289 
 
 2. In case of the marriage, death, or bankruptcy, or Order L. 
 devolution of estate by operation of law, of any party to partiesb^ 
 an action, the Court or a Judge may, if it be deemed Death, &c 
 necessary for the complete settlement of all the questions 
 involved in the action, order that the husband, personal 
 representative, trustee, or other successor in interest, if any, 
 
 of such party be made a party to the action, or be served 
 with notice thereof in such manner and form as herein- 
 after prescribed, and on such terms as the Court or Judge 
 shall think just, and shall make such order for the 
 disposal of the action as may be just. 
 
 3. In case of an assignment, creation, or devolution of 
 any estate or title pendente lite the action may be con- 
 tinued by or against the person to or upon whom such 
 estate or title has come or devolved. 
 
 4. Where by reason of marriage, death, or bankruptcy, 
 or any other event occurring after the commencement of 
 an action, and causing a change or transmission of interest 
 or liability, or by reason of any person interested coming 
 into existence after the commencement of the action, it 
 becomes necessary or desirable that any person not already 
 a party to the action should be made a party thereto, or 
 that any person already a party thereto should be made a 
 party thereto in another capacity, an order that the proceed- 
 ings in the action shall be carried on between the con- 
 tinuing parties to the action, and such new party or parties, 
 may be obtained ex parte on application to the Court 
 or a Judge, upon an allegation of such change, or trans- 
 mission of interest or liability, or of such person interested 
 having come into existence. 
 
 5. An order so obtained shall, unless the Court or 
 Judge shall otherwise direct, be served upon the con- 
 tinuing party or parties to the action, or their solicitors, 
 ami also upon each such new party, unless the person 
 making the application be himself the only new party, 
 and the order shall from the time of such service, subject 
 nevertheless to the next two following Rules, be binding 
 on the persons served therewith, and every person served 
 therewith, who is not already a party to the action shall 
 be bound to enter an appearance thereto within the .same 
 time and in the same manner as if he had been served 
 with a writ of summons. 
 
 6. "Where any person who is under no disability or 
 
 o
 
 290 SUPBEME COURT OF JUDICATURE ACT, 1S75. 
 
 Order i,. under no disability other than coverture, or being under 
 Partilsfby all . v disability other than coverture, but having a guardian 
 Death, &c. a fj litem in the action, shall be served with such order, 
 sue]] person may apply to the Court or a Judge to dis- 
 charge or vary such order at any time within twelve days 
 from the service thereof. 
 
 7. Where any person being under any disability other 
 than coverture, and not having had a guardian ad litem 
 appointed in the action, is served with any such order, 
 such person may apply to the Court or a Judge to dis- 
 charge or vary such order at any time within twelve days 
 from the appointment of a guardian or guardians ad litem 
 for such party, and until such period of twelve days shall 
 have expired such order shall have no force or effect as- 
 against such last-mentioned person. 
 
 Order LI. ORDER LI. 
 
 rYansfers 
 
 d' a fi V 1 '." 1> Transfers and Consolidation. 
 
 I. Any action or actions may he transferred from one 
 division to another of the High Court or from one .fudge to 
 another of the < ihancery Division by an order of the Lord 
 Chancellor, provided that no transfer shall be made from 
 or to any division without the consent of the President of 
 the Division. 
 
 Three methods of transfer are provided for by the rules of this 
 order and the sections set out below— 
 
 i. Where an action is commenced in the wrong division, the Court 
 or a judge of the division in which it is commenced may either 
 transfer the cause to the proper division or keep it where it is, s. 11 
 of the Act of 1875, ante, p. 133^ 
 
 ii. The Lord Chancellor may transfer an action from one division 
 & J/uf&tj to an( ,ther, with the consent of the presidents of both divisions ; 
 
 &/},ycL an( j may, as hitherto, transfer an action from one judge of the 
 
 Chancery Division to another ; Eule 1. 
 
 iii. An action may be transferred at any stage, and either on the 
 application of any party or without it, by a Court or Judge of the 
 division in which it is pending, with the consent of the president of 
 the division to which it is to be transferred. An example will 
 be found in Appendix (C), No. 24, post, p. 371, of an application to 
 transfer an action to the Chancery Division being made in the 
 answer, the answer raising, by way of counter-claim, a claim for 
 specific performance of an agreement for a lease ; Kule 2. 
 
 By s. 11, of the Act of 1875 :— &£,+** 4r tu~ f r~L, jfi *. 
 Suli--s. 2. If any \tiaintiff or ■petitioner slioM at anytime 
 assign Jiis cause or matter to any division of the said High 
 Court to which, according in the rules of court or the provi-
 
 ORDER LI. — Transfers and Consolidation. 
 18. When an order has been made by any Judge of Order li„ 
 the Chancery Division for the winding up of any company 
 under the Companies Acts, 1862 and 18G9, or for the ad- 
 ministration of the assets of any testator or intestate, the 
 Judge in whose Court such winding up or administration 
 shall be pending shall have power, without any further 
 cori 'id, to order the transfer to such -Judge of any action 
 pending in any other division brought or continued by or 
 against such company, or by or against the executors or ad- 
 ministrators of the testator or intestate whose assets are 
 being so administered, as the case may be.
 
 FIRST SCHEDULE. RULES OF COURT. 291 
 
 sions of the principal Act or this Act, the same ought not to Order li. 
 be assigned, the Court, or any judge of such division, upon ancTcoasoli- 
 being informed thereof, may on a summar t/ application at dation. 
 any stage of the cause or matter, direct the same to be 
 transferred to the division of the said Court to which, 
 according to such rides or provisions, the same ought to have 
 been assigned, or he may, if he think it expedient so to do, 
 retain the same in the division in which the same teas 
 commenced; ami all steps ami proceedings whatsoever taken 
 by the plaintiff or petitioner, or by any other party in any 
 such cause or matter, and all order* matte therein by the 
 Court or any Judge thereof before any such transfer, shall 
 tie valid and effectual to all intents and purposes, in the 
 same manner as if the same respectively had been taken and 
 made in the proper division of the said Court to which such 
 cause or matter ought to have been assigned. 
 
 By the Judicature Act, 1873 : — • 
 
 S. 36. Any cause or matter may ai any time, and cd any 
 stage thereof, and either with or without application from 
 any of the parties thereto, tie transferred by such authority 
 and in sue/, manner as rules of court may direct, from 
 one, division or Judge of the High Court of Justice to any 
 otlnr division or fudge thereof, or may by the like authority 
 be retained in the division in which the same, was commenced,, 
 at though such may not be the proper it i vision to which the 
 same cause or matter ought, in the first instance, to have 
 been assigned. 
 
 2. Any action may, at any stage, be transferred from 
 one division to another by an order made by the Court or 
 any Judge of the Division to which the action is assigned : 
 Provided that no snch transfer shall be made without the 
 consent of the President of the Division to which the action 
 is proposed to be transferred. 
 
 3. Any action transferred to the Chancery Division or 
 e Probate Division, shall, by the order directing the 
 msfer, be directed to be assigned to one of the Judges 
 Such I Mvision to be named in the order. 
 
 4. Action; in any division or divisions may be conso-,4<fi£. 2>. 5*^*7 
 [ated by order of the Court or a Judge in the mannei 
 
 eretofore in use in the Superior Courts of Common Law 
 
 The term, consolidation of actions, is used in two sense?. First, 
 
 a plaintiff brings two actions against the same defendant, for 
 
 matters which might properly be combined in one action, and the
 
 292 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order LI. double proceeding is shown to be vexatious, the Court, in the exercise 
 
 Transfers of its ordinary power to prevent any abuse of its own process, will con- 
 
 and Consoh- so ijj a te the actions ; that is to say, will stay proceedings absolutely 
 
 i_ in one action, and require the plaintiff to include the whole of his 
 
 claims in the other ; and this has been done with costs against the 
 
 plaintiff. See Cecil v. Brigges, 2 T. R. 639 ; Anon, 1 Chitty's Rep. 
 
 709 (n.); Beardsall v. Cheetham, E. B. & E. 243; 1 Tidd's Practice, 
 
 p. 614, 9th edit. ; 2 Chitty's Archbold, p. 1347, 11th edit. 
 
 But the term consolidation is more frequently used in a different 
 sense. Where actions are brought by the same plaintiff against 
 different defendants, but the questions in dispute in all are substan- 
 tially the same, the Com-t will, on the application of the defendants, 
 stay proceedings in all the actions except one until that one action 
 has been determined, upon the terms that the various defendants 
 agree to be bound by the event of the action which proceeds. This 
 practice was first introduced in the Queen's Bench under Lord 
 Mansfield, in the case of actions against the several underwriters upon 
 policies of insurance. (See 1 Tidd's Practice, p. 614, 9th edit.) But it 
 has since been applied in many other cases ; as in the case of separate 
 guarantees by different instruments of separate parts of a debt ; 
 Sharp v. Lethhridge, 4 M. & C 37 ; joint and several obligors of a bond 
 conditioned for the good behaviour of another person, Anderson v. 
 Towgood, 1 Q. B. 245 ; principal and sureties on a replevin bond, 
 Bartlett v. Bartlett, 4 Scott, N. R. 779 ; the several members liable 
 upon a mutual insurance policy, Lev:is v. Barhes, 4 C. B. X. S. 330. 
 So where a number of actions against different defendants may be 
 reduced to classes, those of each class raising the same questions, 
 the Court may allow one action of each class to proceed, and stay 
 the rest ; Sycrs v. PickersgiH, 27 L. J. Ex. 5. 
 
 The order is made on the application of the defendant, and without 
 the necessity of any consent on the plaintiff's part ; Hollingsworth v. 
 Brodricl', 4 A. & E. 646. It binds the defendants in the actions 
 which are stayed to abide the event of the one which proceeds : 
 but it does not bind the plaintiff to do so ; and if the result of the 
 first action is against him, he may proceed with another ; Doyle v. 
 Anderson, 1 A. & E. 635 ; Doyle v. Douglas, 4 B. & Ad. 544. 
 
 A consolidation order may be obtained at any time after service of 
 the writ ; Hollingsworth v. Brodrick, 4 A. & E. 646. 
 
 The Court may re-open the consolidation order and allow a second 
 action to be defended, notwithstanding that the plaintiff has suc- 
 ceeded in the first action. But it will require a very strong 
 case to induce it to do so. Probably a case must be shown at least as 
 strong as woidd be required to procure a new trial. See Foster v. 
 Alrez, 3 Bing. N. C. 896. 
 
 The whole of the cases upon the consolidation of actions, many of 
 which are difficult to reconcile, will be found collected in 2 Chitty's 
 Archbold, pp. 1347-8, 11th edit. ; 2 Lush's Practice, p. 962, 3rd edit., 
 by Dixon. 
 
 The form of order in general use will be found in Chitty's Forms, 
 p. 788, 9th edit. 
 
 Order LII. ORDEE LIT. 
 
 Interlocu- 
 tory Orders. INTERLOCUTORY ORDERS AS TO MANDAMUS INJUNCTIONS OR 
 
 Interim Preservation of Property, &c. 
 1 . When by any contract a prima facie case of liability
 
 FIRST SCHEDULE. RULES OF COURT. 293 
 
 is established, and there is alleged as matter of defence a Order lii. 
 right to be relieved wholly or partially from such liahdity, t ory r Orders, 
 the Court or a Judge may make an order for the preserva- — . 
 tion or interim custody of the subject matter of the^'*' **"^ 
 litigation, or may order that the amount in dispute be 
 brought into Court or otherwise secured. » 
 
 The several rules of this Order and the sections cited below give 
 very important powers to the Court for preserving the rights of the 
 parties uninjured during the pendency of litigation. 
 
 i. By Rule 1, when a prima facie case of liability, under a contract, 
 is established, and the party prima facie liable seeks to be relieved 
 from his liability, an Order may be made for payment into Court of, 
 or otherwise securing, the amount of the claim, or for the preserva- 
 tion of the subject-matter. The meaning of the word " established " 
 seems to be (Rule 5, post), — admitted on the pleadings, if there are 
 pleadings, or shown to the satisfaction of the Court or judge if there 
 are no pleadings. As to enforcing such Orders as those referred to, 
 see Order XLIL, Rules 2, 5, and 20. 
 
 ii. By Rule 2, an Order may be made for the sale of goods which 
 are perishable, or which for other reasons it is desirable to have sold 
 at once. 
 
 iii. In any case (not, as under Rule 1, in the case of liability 
 under a contract only) an Order may be made for the preservation 
 of the subject-matter of the action, or for inspection of property, or 
 the taking of samples, or making observations or experiments ; 
 Rule 3. 
 
 iv. A mandamus or an injunction may be granted, or a receiver 
 appointed if it be just or convenient ; s. 25, sub-s. 8 of the Act of 
 1873, and Rule 4, post. 
 
 v. Where property other than lands is claimed, and the defence to 
 the claim is founded upon an alleged lien, an Order may be made 
 for delivering up the property to the claimant on payment into 
 Court of the amount of the alleged lien, with a sum for interest and 
 costs, if the Court or judge think fit. 
 
 2. It shall be lawful for the Court or a Judge, on the 
 application of any party to any action, to make any order 
 fur the sale, by any person or persons named in such 
 order, and in such manner, and on such terms as to the 
 < !ourt or Judge may seem desirable, of any goods, wares, 
 or merchandise which may be of a perishable nature or 
 likely fco injure bum keeping, or which for any other just 
 and sufficient reason it may be desirable to have sold at 
 once. 
 
 The power given by this Rule is new. Compare s. 13 of the 
 C. L. P. Act 1860. 
 
 3. It shall be lawful for flic Court or a Judge, upon the 
 application of any party to an action, and upon such 
 terms as may seem just, to make any order for the 
 detention, preservation, or inspection of any property, 2.^>-^ 
 being the subject of such action, and for all or any of the
 
 294 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order Lll. purposes af oresaid to authorise any person or persons to 
 tory r orders. en t er upon or into any land or building in the possession 
 — of any party to such action, and for all or any of the 
 purposes aforesaid to authorise any samples to be taken, or 
 any observation to be made or experiment to be tried, 
 which may seem necessary or expedient for the purpose of 
 obtaining full information or evidence. 
 
 The powers given by this Rule are very much wider than the 
 mere power to allow inspection given by s. 58 of the C. L. P. 
 
 Act, 1854. 
 
 4. An application for an order under section 25, sub- 
 section 8, of the Act, or under Rules 2 or 3 of this Order, 
 
 /Ct.ty. 6oo may be made to the Court or a Judge by any party. If 
 the application be by the plaintiff for an order under the 
 said sub-section 8 it may be made either ex parte or with 
 notice, and if for an order under the said Rules 2 or 3 
 of this Order it may be made after notice to the defendant 
 at any time after the issue of the writ of summons, and if 
 it be by any other party, then on notice to the plaintiff, 
 and at any time after appearance by the party making the 
 application. 
 
 By s. 25 of the Judicature Act, 1873 : — 
 
 Sub-s. 8. A mandamus or an injunction may be granted 
 or a receiver appointed by an interlocutory order of 
 the Court in all cases in which it shall appear to the 
 Court to be just or convenient that such order should 
 be made ; and any such order may be made either 
 unconditionally or upon such terms and conditions 
 as the Court shall think just; and if an injunction 
 is asked, either before, or at, or after the /tearing of 
 any cause or matter, to prevent any threatened or 
 apprehended waste or trespass, such injunction may 
 be granted, if the Court shall think fit, whether the 
 person against whom such injunction is sought is or 
 is not in possession under any claim of title or other- 
 wise, or (if out of possession) does or does not claim 
 a right to do the act sought to be restrained under 
 any colour of title ; and whether the estates claimed 
 by both or by either of the parties are legal or 
 equitable. 
 
 As to the effect of this sub-section, see notes thereto, ante, p. 64. 
 
 5. Aii application for an order under Rulel may be made 
 by the plaintiff at any time after his right thereto appears 
 from the pleading s ;|or, if there be rib plradiugs, is made 
 to appear by affidavit or otherwise to the satisfaction of 
 the Court or a Judge.
 
 FIRST SCHEDULE. — RULES OF COURT, 295 
 
 6. Where an action is brought to recover, or a defendant Order Lir. 
 in his statement of defence seeks hy way of counter claim t"ry r orders. 
 to recover specific property other than land, and the party — 
 from whom such recovery is sought does not dispute the 
 title of the party seeking to recover the same, hut claims 
 to retain the property hy virtue of a lien or otherwise as 
 security for any sum of money, the Court or a Judge may, 
 at any time after such last-mentioned claim appears from 
 the pleadings, or, if there he no pleadings, hy affidavit or 
 otherwise to the satisfaction of such Court or Judge, order 
 that the party claiming to recover the property he at 
 liberty to pay into Court, to abide the event of the action, 
 the amount of money in respect of which the lien or 
 security is claimed, and such further sum (if any) for 
 interest and costs as such Comt or Judge may direct, and 
 that upon such payment into Court being made, the pro- 
 perty claimed be given up to the party claiming it. 
 
 The power given by this Rule is new. 
 
 OEDEE LIIL Order LIII. 
 
 Motions and 
 other Appli- 
 -nir t cations. 
 
 Motions and other Applications. 
 
 1 . Where by these Eules any application is authorised 
 to be made to the Court or a Judge in an action, such ap- 
 plication, if made to a divisional Court or to a Judge in 
 Court, shall be made by motion. 
 
 Applications to a Judge at Chambers must, under the next Order, 
 be made by .summons. 
 
 2. Kb Eule or Order to show cause; shall be granted in 
 any action, except in the cases in which an application for 
 such Eule or Order is expressly authorised by these Eules. 
 
 The ordinary practice in the Common Law Courts, except in the 
 few cases in which a rule was made absolute ex parte, and except where 
 the parties chose to show cause in the Erst instance, that is on the 
 original mo1 ion, has been to move for and obtain a rule to show cause ; 
 and upon cause being shown, the rule was discharged or made absolute. 
 The CC«i1 rary will now be the general rule. And, notice having been 
 given, the matter will bo disposed of upon the original motion. 
 
 A motion for a new trial (Order XXXIX., ante, p. 267) and a 
 motion to enter judgment after the trial where no leave has been 
 ed (Order XL., Rules 4, 5, 6, ante, p. 270) must still be for a 
 rule to show cause.
 
 296 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order liii 3. Except where by the practice existing at the time of 
 other° Appif- ^ e passing of the said Act any order or rule has hereto- 
 cations. fore been made ex parte absolute in the first instance, and 
 ~~ except where by these Bules it is otherwise provided, and 
 except where the motion is for a ride to show cause only, no 
 motion shall be made without previous notice to the parties 
 affected thereby. But the Court or Judge, if satisfied that 
 the delay caused by proceeding in the ordinary way would 
 or might entail irreparable or serious mischief may make 
 any order ex parte upon such terms as to costs or other- 
 wise, and subject to such undertaking, if any, as the 
 Court or Judge may think just; and any party affected by 
 such order may move to set it aside. 
 
 An application for a mandamus or injunction or the appointment 
 of a receiver under s. 25, sub-s. 8 of the Judicature Act, 1873, ante, 
 p. 64, or for the sale or protection of property under Order LIL, Rules 
 2 and 3, may be made ex parte ; Order LII., Eule 4. 
 
 4. Unless the Court or Judge give special leave to the 
 contrary there must be at least two clear days between the 
 service of a notice of motion and the day named in the 
 notice for hearing the motion. 
 
 5. If on the hearing of a motion or other application 
 the Court or Judge shall be of opinion that any person to 
 whom notice has not been given ought to have had such 
 notice, the Court or Judge may either dismiss the motion 
 or application, or adjourn the hearing thereof, in order 
 that such notice may be given upon such terms, if any, as 
 the Court or Judge may think fit to impose. 
 
 6. The hearing of any motion or application may from 
 time to time be adjourned upon such terms, if any, as the 
 
 Court or Judge shall think iit. 
 
 7. The plaintiff shall, without any special leave, be 
 at liberty to serve any notice of motion or other notice, 
 or any petition or summons upon any defendant, who, 
 having been didy served with a writ of summons to appear 
 in the action, has not appeared within the time limited 
 for that purpose. 
 
 8. The plaintiff may, by Leave of the Court or a Judge 
 to be obtained ex parte, serve any notice of motion upon 
 any defendant along with the writ of summons, or at any 
 time after service of the writ of summons and before the 
 time limited for the appearance of such defendant.
 
 ORDER LIV. 
 
 4. The exception contained in Rule 2 of Order LIV. is Order i.i 
 hereby repealed so far as regards the proceedings hereinafter 
 mentioned before the Masters of the Queen's Bench, 
 Common Pleas, and Exchequer Divisions, and such Masters 
 
 may exercise all such authority and jurisdiction as may be 
 exercised by a Judge at Chambers in respect of : 
 
 Discovery, whether of documents or otherwise, and 
 inspection, except inspection under Order LIL, 
 Rule 3 ; 
 
 Orders nisi for charging stock funds, annuities, or share 
 of dividends, or annual proceeds thereof ; 
 
 Interpleader, except where all parties concerned consent 
 to a final determination of the question in dispute 
 without a Jury or Special Case, and except where 
 the sum in dispute is less than 50£, and one of the 
 parties desires such a determination. In such cases 
 the question shall be determined by the Judge, 
 unless the parties agree to refer it to the Master. 
 
 Cairns, C. 
 
 G. Jessel, M.R. 
 
 Fitzboy Kelly, L.C.B.
 
 Stevens and Sons, Law Publishers, 119, Chancery Lane, Lor 
 
 RULES. 
 
 1. These Eules may be cited as " The Rules of 
 Supreme Court, November, 1878," or each separate II 
 may be cited as if it had been one of the Eules of i 
 Supreme Court, and had been numbered by the num 
 of the Order and Rule mentioned in the margin. 
 
 2. These Rules shall come into operation on the II 
 November, 1878.
 
 FIRST SCHEDULE. RULES OF COURT. 297 
 
 ORDER LIT. Order LIV. 
 
 Applications 
 . ^ at Chambers 
 
 Applications at Chambers. _ 
 
 1. Every application at chambers authorised by tbese 
 Rules shall be made in a summary way by summons. 
 
 2. In the Queen's Bench, Common Pleas, and Exchequer 
 Divisions a master, and in the Probate, Divorce, and Ad- 
 miralty Division a registrar, may transact all such business 
 and exercise all such authority and jurisdiction in respect 
 of the same as under the Act, or the Schedule thereto, or 
 these Rules, may be transacted or exercised by a Judge at 
 chambers, except in respect of the following proceedings 
 and matters; that is to say, — 
 
 All matters relating to criminal proceedings or to the 
 liberty of the subject : 
 
 The removal of actions from one division or Judge to 
 another division or Judge : 
 
 The settlement of issues, except by consent : 
 
 Discovery, whether of documents or otherwise, and in- 
 spection, except by consent : 
 
 Appeals from district registrars : 
 
 Interpleader other than such matters arising in inter- 
 pleader as relate to practice only, except by consent : 
 
 Prohibitions : 
 
 Injunctions and other orders under sub-section 8 of 
 section 25 of the Act, or under Order LIT, Rides 
 1, 2, and 3 respectively : 
 
 Awarding of cosl s, other than the costs of any proceeding 
 before such master : 
 
 I, ''viewing taxation of costs : 
 
 Charging orders on stock funds, annuities, or share of 
 dividends or annual produce thereof : 
 
 Acknowlcdiinients of married women. 
 
 ORDER LIV. — Applications at Chambers. 
 19. The authority and jurisdiction of the District Order liv. 
 le-dstrar or of a Master of the Queen's Bench, Common Ku,e 2a - 
 Pleas, or Exchequer Divisions shall not extend to granting 
 leave for service out of the jurisdiction of a writ of sum- 
 lu' mis or of notice of a writ of summons. 
 
 the masters were empowered to exercise all the jurisdiction of a 
 judge at chambers, except (unless by consent) in a specified list of 
 matters. The matters so excepted correspond, except in a few points, 
 with that given in the above rule 
 
 The differences are these. The old list of exceptions included the 
 following matters not mentioned in the new : — 
 
 The removal of causes from inferior Courts ; 
 
 o 5
 
 298 
 
 SUPREME COURT OP JUDICATURE ACT, 1875. 
 
 Order LIV. 
 
 Applications 
 at Chambers 
 
 The referring of causes under the C. L. P. Act. 1854 ; 
 
 The rectifying of omissious or mistakes in the register under the 
 Joint Stock Companies Acts ; 
 
 Staying proceedings after verdicts ; 
 
 Leave to sue in forma pauperis. 
 
 The new list of exceptions contains the following matters not 
 in the old : — 
 
 The removal of actions from division to division, or judge to judge; 
 
 The settlement of issues ; 
 
 Appeals from district registrars ; 
 
 Orders for the protection of property, analogous to injunctions. 
 
 Under the old rules all the excepted matters were subject to the 
 general qualifications, except by consent. Jurisdiction by consent is 
 only provided for under the new rule with respect to the settlement 
 of issues, discovery, and interpleader. 
 
 The following rules of this order continue the existing practice 
 unchanged. 
 
 Similar powers to those here given to the masters are given to 
 district registrars by Order XXXV., Rule 5, ante, p. 215. 
 
 No costs of counsel's attendance at Chambers can be allowed with- 
 out a certificate that the case is fit for counsel ; Additional Rules, 
 post, p. 413. 
 
 As to costs thrown away by default of attendance at Chambers, 
 or by any party not being ready, and as to the costs of attendance in 
 special instances ; see Ibid. 
 
 3. If any matter appears to the master proper for the 
 decision of a Judge the master may refer the same to a 
 Judge, and the Judge may either dispose of the matter or 
 refer the same back to the master with such directions as 
 he may think fit. 
 
 4. Any person affected by any order or decision of a 
 master may appeal therefrom to a Judge at chambers. 
 Such appeal shall be by summons, within four days after 
 the decision complained of, or such further time as may be 
 allowed by a Judge or master. 
 
 5. An appeal from a master's decision shall be no stay 
 of proceedings unless so ordered by a Judge or master. 
 
 G. In the Queen's Bench, Common Pleas, and Ex- 
 chequer Division every appeal to the Court from any 
 decision at chambers shall be by motion, and shall be made 
 
 within eight days after the decision appealed against. 
 
 Order LV. 
 Costs. 
 
 OEDEE LV. 
 
 Costs. 
 
 Subject to the provisions of the Act, the cists of and 
 incident to all proceedings in the High Court shall be in
 
 7. In any cause, or matter, in which security for costs O r ' 
 is required, the security shall he of such amount, and he 
 given at such time or times, and in such manner and form 
 as the Court or a Judge shall direct. 3 C
 
 FIRST SCHEDULE. — RULES OF COURT. 299 
 
 the discretion of trie Court; but nothing herein contained Order LV. 
 
 shall deprive a trustee, mortgagee, or other person of any ts- . # 
 
 right to costs out of a particular estate or fund to which he^ ^^r 
 
 would he entitled according to the rules hitherto acted 
 
 upon in Courts of Equity : Provided that where any action 
 
 or issue is tried by a jivry, the costs shall follow the event, 
 
 unless upon application made a t the trial for good cause 2<??>3.0. /// 
 
 shown the Judge before whom such action or issue is tried 
 
 or t he Court shall otherwise order. 
 
 Under the various statutes affecting costs, the rule in the Common 
 Law Courts has been that costs follow the event. In Chancery, except 
 in the case, ref erred to in the rule, of a trustee or mortgagee, they have 
 been in the discretion of the Court. But the rule acted upon has 
 been that the party failing pays the costs in the absence of special 
 circumstances. 
 
 This rule must be read subject to the provisions of the County 
 Courts Act, 1867, depriving a plaintiff of costs who recovers not more 
 than 201. in an action founded on contract, or 10?. in one of tort, 
 without a certificate or order (see^s. 67 of the Judicature Act, 1873, 
 ante, p. 91 and note thereto), as well as to Lord Denman's Act, 
 3 & 4 Vict., c. 24, s. 2, depriving a plaintiff of costs who recovers 
 less than 40**. in an action of tort unless the judge certifies that the 
 the tort was wilful and malicious, or the action brought to try a right ; 
 and the 21 Jac. 1, c. 16, s. 6, whereby a plaintiff recovering less than 
 forty shillings in slanders can have no more costs than damages. 
 
 For scales of costs, the discretion of the taxing officer, the mode of 
 taxing and reviewing the taxation of costs and other matters relating 
 to costs, see Additional Fades, post, p. 394. 
 
 ORDER LYT. Order LVI. 
 
 Notices and 
 
 Paper, <fcc. 
 
 Notices and Paper, &c. - - 
 
 !. All notia - required by these Rules shall be in "writ- 
 ing, unless expressly authorised by a Court or Judge to he 
 given orally. 
 
 2. Proceedings required to he printed shall ho printed 
 
 ii cream wove machine drawing foolscap folio paper, 
 
 19 lbs. per mill ream, or thereabouts, in pica type Leaded, 
 
 with an inner margin about three quarters of an inch wide, 
 
 and an outer margin about two inches and a. half wide. 
 
 For regulations as to printing, delivery of copies, costs, &c, see 
 Additional Rules, Order V., post, p. I'.'.rj.. 
 
 4. Any affidavit may he sworn to either in print or in 
 manuscript, or partly in print and partly in manuscript. 
 
 See Additional Rules, Order V., post, p. 392.
 
 300 
 
 Order LVII. 
 Time. 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 OBDEE LVII. 
 Time. 
 
 1. Where by these Eules, or by any judgment or order 
 given or made after the commencement of the Act, time 
 for doing any act or taking any proceeding is limited by 
 months, not expressed to be lunar months, such time shall 
 be computed by calendar months. 
 
 2. " Where any limited timc_ less than six days from or 
 after any date or event is appointed or allowed for doing 
 any act or taking any proceeding, Sunday, Christmas Day, 
 and Good Friday shall not be reckoned in the computation 
 of such limited time. / f .CA.. r 2.y*j£t 
 
 3. "Where the time for doing any act or taking any pro- 
 ceeding expires on a Sunday, or other day on which the 
 offices are closed, and by reason thereof such act or pro- 
 ceeding cannot be done or taken on that da}', such act or 
 proceeding shall, so far as regards the time of doing or 
 taking the same, be held to be duly done or taken if done 
 or taken on the day on which the offices shall next be 
 open. 
 
 4. Xo pleadings shall be amended or delivered in tin- 
 long vacation, unless directed by a Court or a Judge. 
 
 Hitherto in the Common Law Courts no pleadings could be de- 
 livered during the long vacation. It may now be done if an order 
 for the purpose be obtained. 
 
 5. The time of the long vacation shall not be reckoned 
 in the computation of the times appointed or allowed by 
 tin se Eules for filing, amending, or delivering any pleading, 
 unless otherwise directed by a Court or a Judge. 
 
 G. A Court or a Judge shall have power to enlarge or 
 abridge the time appointed by these Rules, or fixed by any 
 order enlarging time foi doing any act or taking any pro- 
 ceeding, upon such terms (if any) as the justice of the case 
 may require, and any such enlargement may be ordered 
 although the application for the same is not made until 
 after the expiration of the time appointed or allowed. 
 
 By Additional Rules, post, p. 414, the costs of one application for 
 extension of time are (subject to any special order) to be allowed as 
 costs in the cause. But, unless specially ordered, no costs of any 
 further application can be allowed to the parties making it.
 
 FIRST SCHEDULE. RULES OF COURT. 301 
 
 ORDER LVIII. gd« 
 
 Appeals. 
 
 Appeals. 
 
 1 . Bills of exceptions and proceedings in error shall be 
 abolished. 
 
 There have hitherto been several modes, according to the practice 
 of the Common Courts, of reaching the Exchequer Chamber. One 
 has been by Bill of Exceptions, excepting to the direction in point 
 of law of the judge at the trial. A second has been by proceedings 
 in error, where the miscarriage complained of appeared upon the 
 face of the recorded proceeding. A third has been by appeal from 
 judgments refusing, discharging, or making absolute rules for new 
 trials, or to enter verdicts under the C. L. P. Act, 1852, ss. 34 to 44. 
 Such appeals have been upon cases stated for the purpose. Bills of 
 Exceptions and proceedings in Error are abolished by this rule, and 
 cases on appeal by the next rule, one uniform method of appeal by 
 way of rehearing upon motion being adopted from all the divisions. 
 But though bills of exceptions are in form abolished, the right to 
 go direct from the judge at the trial to the Court of Appeal in many 
 of the same cases, and for the same purposes as hitherto by Bill of 
 exceptions, is preserved. See s. 22 of the Act of 1875, ante, p. 138, 
 and note to s. 46 of the Act of 1873, ante, p. S2. 
 
 Appeals to the Court of Appeal in Chancery have been by peti- 
 tion for rehearing, or where the order appealed from was made on 
 motion, by appeal motion. 
 
 2. All appeals to the Court of Appeal shall be by way 
 
 of rehearing, and shall be brought by notice of motion in $*&(> *. & 
 a summary way, and no petition, case, or other formal pro- 
 ceeding other than such notice of motion shall be necessary. 
 The appellant may by the notice of motion appeal from 
 the whole or any part of any judgment or order, and the 
 notice of motion shall state whether the whole or part only 
 of such judgment or order is complained of, and in the 
 latter case shall specify such part. 
 
 By the Judicature Act, 1873 : — 
 
 S. 19. The said Court of Appeal shall have jurisdiction 
 and power to hear and determine appeals from any judg- 
 ment or order, save as hereinafter mentioned, of Her 
 Majesty's High Court of Justice, or of any judges or 
 judge thereof, subject to the provisions of this Act, and to 
 such rules and orders of Court for regulating the terms and 
 conditions on which such appeals shall be alloioed, as may 
 be made pursuant to this Act. 
 
 S. 40. No order madeby theHighCourt of Ju iice or any 
 Judge thereof, by the consent of parties, or as to costs only, 
 which by law are left to the discretion of the Court, shall 
 In- subject to any appeal, except by leave of the Court or 
 judge making such order.
 
 302 
 
 SUPBEME COURT OF JUDICATURE ACT, 1875. 
 
 2vnr ^' ^" F jVcr U or der made by a Judge of the said High 
 
 Appeals Court in Chambers, except orders made in the exercise of 
 such discretion as aforesaid, may be set aside or disch 
 upon notice by any Divisional Court, or by the judge 
 sitting in Court, according to the course and practice of 
 the division of the High. Court to which the particular 
 cause or matter in which such order is made may be as- 
 signed : and no appeal shall lie from any such order, to 
 set aside or discharge which no such motion has hem made, 
 unless by special leave of the judge by whom such ■ 
 was made, or of the Court of A}>, 
 
 By the Act of 1375 :— 
 
 S. 12. Em-// appealto the Court of Appeal shall, where the 
 subject-matter of the appeal is a final order, decree, or judg- 
 ment, be hoard before not less than, three judges of the said 
 court sitting together, and .-dad, when the subject matter of 
 the appeal is an interlocutory order, decree, or judgment, he 
 heard before not less than hoo judges of the said Court sit- 
 ting together. 
 
 Any doubt which may arise as to what decrees, orders, or 
 judgments are final, and what are interlocutory, shall be 
 ■determined by the Court of Appeal. 
 
 By the Judicature Act, 1873 : — 
 
 S. 52. Inany cause or matter pending before the Court of 
 Appeal, any direction incidental thereto, not involving the 
 decision of the appeal, may be given by a single Judge of 
 the Court of Appeal ; ami a single Judge of the Court of 
 Appeal may at any timeduring vacation malm any interim 
 order to pn •■■ nt prejudice to the claims of any parties 
 pending an appeal as he nun/ thud: fit : but every such 
 order made by a single Judge may be discharged or varied 
 by the Court of Appeal or a Divisional Court thereof. 
 
 8. 28. Provision shall be made by Rules of Court for 
 the hearing, in London or Middlesex, during vacatio; 
 Judges of the High Court of Justice and the Court of 
 Appeal respectively, of all such applications as may 
 require to be immediately or promptly heard. 
 
 By the Act of 1S75 :— 
 
 S. 4. No Judge of tin- said Court ofAppi cd sJiall sit as a 
 Judge on the hearing of an appeal from any judgment or 
 order made by himself, or mad,,' by any Divisional Court of 
 the High Court of which he was and is a meml \ 
 
 By s. 4 5 judgments on appeal from inferior Courts are to be final 
 unless leave to appeal be given. By s. 17 judgments of the Court of
 
 FIRST SCHEDULE. RULES OF COURT. 303 
 
 Criminal Appeal are without appeal. By s. 50 an appeal does not Order 
 lie direct to the Court of Appeal from a Judge at Chambers unless LVIII. 
 leave so to appeal be given. ppea s. 
 
 The provisions of the order, and of the sections set out below in- 
 troduce changes of the most important character, especially in the 
 procedure of the Queen's Bench, Common Pleas, and Exchequer 
 Divisions. 
 
 Hitherto there has been no mode of reviewing the decision of a 
 Common Law Court except, first, by proceedings in error for defects 
 apparent on the face of the record ; or, secondly, in certain cases 
 under the C. L. P. Act, 1852, against a judgment, refusing, dis- 
 charging, or making absolute a rule for a new trial, or to enter a 
 verdict. From the vast number of judgments and rules not falling 
 under either of these heads there has been no appeal. For the 
 future an appeal will lie from any judgment or order, except those 
 specified below (s. 19 of the Act of 1S73). And this section is 
 not limited to judgments and orders in any action, but is general 
 in its terms ; it includes, too, interlocutory orders, as well as final 
 judgments. 
 
 Every appeal will be a rehearing upon motion, after notice ; 
 Rule 2. The Court of Appeal will have full power over the whole 
 subject matter, with power to give any judgment that ought to be 
 given, and with all the powers of the Court of first instance ; 
 Pule 5. Eresh evidence may be used in the cases provided for in 
 the same rule. No cross appeal will be necessary ; but the re- 
 spondent has only to give notice under Rule 6 if he has to complain 
 of anything in the decision appealed against, and even the omission 
 of the notice will not be fatal ; Rule 6. 
 
 An appeal from a final judgment must be heard before three 
 judges ; one from an interlocutory order may be heard before two ; 
 s. 12, of the Act of 1875. 
 
 The time within which an appeal must be brought is, by Rule 15, 
 twenty-one days from an interlocutory order, and a year from a 
 final judgment, unless the time be enlarged by the Court of Appeal. 
 And the notice of appeal must in the case of a judgment, final or 
 interlocutory, be a fourteen days' notice, and in the case of an 
 interlocutory order a four days' notice ; Rule 4. 
 
 It will be observed that an appellant need not give security for 
 costs unless ordered to do so by the Court of Appeal ; Rule 15. 
 
 Incidental orders may, by s. 52 of the Act of 1873, svprd, be 
 made by a single Judge of the Court of Appeal. 
 
 It will be observed that s. 28 of the Act of 1873, cited above, 
 directs that provision shall be made by Rule of Court for the 
 hearing of matters of urgency during vacation, by Judges of the 
 Court of Appeal, as well as by Judges of the High Court. But 
 though the rules do provide (Order LXL, post, p. 308), for the atten- 
 dance of vacation Judges of the High Court ; there is no such pro- 
 vision with regard to Judges of the Court of Appeal. 
 
 3. The notice of appeal shall he served upon all parties 
 directly affected by the appeal, and it shall not he neces- 
 sary to serve parties not so affected ; but the Court of 
 Appeal may direct notice of the appeal fco be served on all 
 or any parties to the action or other proceeding, or upon 
 anyperson aot a party,and in the meantime may postpone 
 or adjourn the hearing of the appeal upon such terms as
 
 £*£<^/L~& s* f,^r£Z^ ^/^^^ /P^Z. 2&-J. 4 & 2>. 2^ 
 
 304 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order may seem just, and may give such judgment and make 
 
 Appeal's. such order as might have been given or made if the persons 
 
 served with such notice had been originally parties. Any 
 
 notice of appeal may be amended at any time as to the 
 
 Court of App>eal may seem fit. 
 
 4. Notice of appeal from any judgment , whether final 
 or interlocutory, shall be a fourteen days' notice, and notice 
 of appeal from any interlocutory order shall be a four days' 
 notice. 
 
 5. The Court of Appeal shall have all the powers and 
 duties as to amendment and otherwise of the Court of 
 First Instance, together with full discretionary power to 
 receive further evidence upon questions of fact, such 
 evidence to be either by oral examination in court, by 
 affidavit, or by deposition taken before an examiner or 
 commissioner. Such further evidence may be given 
 withou t special leave iipon interlocutory applications , or in 
 any case as to matters which have occurred ai'ter the date of 
 the decision from which the appeal is brought. Upon 
 appeals from a judgment after trial or hearing of any caus e 
 or matter upon the merits, such further evidence (saA-e as to 
 matters subsequent as aforesaid) shall be admitted on 
 special grounds only, and not without special leave of the 
 Court. The Court of Appeal shall have power to give any 
 judgment and make any order which ought to have been 
 made, and to make such further or other order as the case 
 may require. The powers aforesaid may be exercised by 
 the said Court, notwithstanding that the notice of appeal 
 may be that part only of the decision may be reversed or 
 varied, and such powers may also be exercised in favour 
 of all or any of the respondents or parties, although such 
 respondents or parties may not have appealed from or 
 complained of the decision. The Court of Appeal shall 
 have power to make such order as to the whole or any 
 part of the costs of the appeal as may seem just. 
 
 
 As to amendments. See Order XVI., Kvile 13, ante, p. 197 ; 
 Order XXVII., ante, p. 223. As to the mode of bringing before 
 the Court of Appeal the evidence taken in the Courts below, see 
 Rule 11, post, y>. 303. And as to printing evidence, Rule 12, post, 
 p. 303. As to security for costs upon appeal, see Rule 15, jx>st, p. 303. 
 
 6. It shall not, under any circumstances, be necessary 
 
 /f/Z.Q. y/f-rf ^ or a respondent to give notice of motion by way of cross 
 
 appeal, but if a respondent intends, upon the hearing of 
 
 the appeal, to contend that the decision of the Court below 
 
 shoidd be varied, he shall, within the time specified hi the
 
 FIRST SCHEDULE. RULES OF COURT. 305 
 
 next Rule, or such time as may be prescribed by special Order 
 order, give notice of such intention to any parties who Appeals. 
 may be affected by such contention. The omission to give 
 such notice shall not diminish the powers conferred by the 
 Act upon the Court of Appeal, but may, in the discretion 
 of the Court, be ground for an adjournment of the appeal, 
 or for a special order as to costs. 
 
 It will be observed that the language of this rule, dispensing with 
 the necessity for notice of motion by way of cross appeal, is perfectly 
 general ; it is not limited to the case in which a respondent seeks to 
 have the decision of the Court below varied as against the party 
 appellant alone. But if the matter of his complaint affects a third 
 party, as, for instance, a co-respondent, the rule requires him to give 
 notice to the party so affected. And an omission to give such notice 
 would of course be ground for the Court exercising the power given 
 to it in the last clause of the rule. 
 
 7. Subject to any special order which may be made, 
 notice by a respondent under the last preceding ride shall 
 in the case of any appeal from a final judgment be an eight 
 days' notice, and in the case of an appeal from an inter- 
 locutory order a two days' notice. 
 
 The party appealing from a judgment or order shall r 2 > <«*> f "~t'*£'*'z- 
 
 produce to the proper officer of the Court of Appeal the e ffi^ — ' 
 
 judgment or order or an office copy thereof, and shall leave 3 c 
 
 with him a copy of the notice of appeal to be hied, and / //^^^^r* 
 
 such officer shall thereupon set down the appeal by entering '4,*? p~ *~^>~— <-<-u 
 
 the same in the proper list of appeals, and it shall come*^!^A <%*-~J> £» 
 
 on to be heard according to its order in such list, unless 4&- 
 
 the Court of Appeal or a Judge thereof shall otherwise 
 
 direct, but so as not to come into the paper for hearing 
 
 before the day named in the notice of appeal. 
 
 9. The time for appealing from any order or decision A &■■ &. 3* <£~~ 
 made 01 given in the matter of the winding up of a com- 
 pany inn lor th. • provisions of the Companies Act, 1862, or 
 
 any Act amending Hie same, or any order or decision made 
 in the matter of any banjsujjtcy, <>r in any other matter J^^/iS/l. y8S~^ 
 not being an action , shall be the same as the time limited J&7 "?*?*+ 
 for appeal from an interlocutory order under Rude L5. 
 
 The time for appealing from an interlocutory order is three weeks ; 
 Rule IT), pout. This is the same time prescribed for notice of appeal 
 from an order in Winding up by s^lirf of the Companies Act, 1862. 
 The same period is fixed in hauk'rfljitcy by Kulo lb; of the Bank- 
 ruptcy Kules, 1870. 
 
 10. Where an ex parte application has been refused by 
 the Court below, an application for a similar purpose may
 
 306 SUPREME COURT OF JUDICATURE ACT, 187-5. 
 
 Order l>e made to the Court of Appeal ex parte within four days 
 
 Appeal's. from the date of such refusal, or within such enlarged 
 
 — time as a Judge of the Court below or of the Appeal Court 
 
 may allow. 
 
 11. "When any question of fact is involved in an appeal, 
 the evidence taken in the Court below bearing on such 
 question shall, subject to any special order, be brought be- 
 fore the Court of Appeal as follows : 
 
 (a.) As to any evidence taken by affidavit, by the pro- 
 duction of printed copies of such of the affidavits 
 as have been printed, and office copies of such of 
 them as have not been printed. 
 
 (b.) As to any evidence given orally, by the production 
 of a copy of the Judge's notes, or such other 
 materials as the Court may deem expedient. 
 
 As to receiving fresh evidence, see Ride 5, ante, p. 304. 
 
 12. Where evidence has not been printed in the Court 
 below, the Court below or a Judge thereof, or the Court of 
 Appeal or a Judge thereof, may order the whole or any 
 part thereof to be printed for the purpose of the appeal. 
 Any party printing evidence for the purpose of an appeal 
 without such order shall bear the costs thereof, unless the 
 Court of Appeal or a Judge thereof shall otherwise order. 
 
 Evidence taken by affidavit under a consent must be printed ; 
 Order XXXVIII., Rule 6, p. 226. As to the mode of printing, 
 delivery of copies, costs, &c, see Order LVL, Rule 2 ; Additional 
 Rules, Order V., post, p. 392. 
 
 1 3. If, upon the hearing of an appeal, a question arise 
 as to the riding or direction of the Judge to a jury or 
 assessors, the Court shall have regard to verified notes or 
 other evidence, and to such other materials as the Court 
 may deem expedient. 
 
 14. No interlocutory order or rule from which there has 
 been no appeal shall operate so as to bar or prejudice the 
 Court of Appeal from giving such decision upon the appeal 
 as may seem just. 366 7 
 
 15. No appeal from any iiibsrloc utory ord er shall, except 
 /{(%■% /3^f by special leave of the Court of Appeal, be brought/rafter 
 
 the expiration of twenty-one days, and no other appeal 
 shall, except bv such leav e, be brought after the expiration 
 of one year. The said respective periods shall be calculated 
 from the time at which the judgment or order is signed,
 
 FIRST SCHEDULE. RULES OF COURT. 307 
 
 entered, or otherwise perfected, or, in the case of the refusal lvhi 
 2 ^^ of an application , from the date of such refusal . Such Appeals. 
 . deposit or other security for the costs to he occasioned by 
 any appeal shall he made or given as may he directed under _, n -y&z 
 special circumstances by the Court of Appeal. 2Gf- *jl ^Z^ ' 
 
 It will be observed that these rules contain no provision' for any 
 deposit or security for costs or otherwise by an appellant, except the 
 power given by this rule to the Court of Appeal to order security 
 for costs under special circumstances. 
 
 16. An appeal shall not operate as a stay of execution 
 
 or of proceedings under the decision appealed from, excep t _f/^g j^^d 
 so far as the Court 'appealed from , or any Judge thereof, or 
 the Court of Appeal, ma y so order ; and no intermediate 
 act or proceeding shall he invalidated, except so far as the 
 Court appealed from may direct. 
 
 17. Wherever under these Eules an application may be 
 made either to the Court below or to the Court of Appeal, 
 or to a Judge of the Court below or of the Court of Appeal, 
 it shall be made in the first instance to the Co ur t or Judge 
 below. ""■"* 
 
 18. Every application to a Judge of the Court of Appeal 
 shall be by motion, and the provisions of Order 53 shall 
 apply thereto. 
 
 OEDEE LIX. Order LIX. 
 
 Effect of 
 Non-com- 
 
 Effect of Nox-compliaxce. phance. 
 
 Non-compliance with any of these Rules shall not render 
 the proceedings in any action void unless the Court or a 
 Judge shall so direct, but such proceedings maybe set 3ft£.QJ. /06 
 aside either wholly or in part as irregular, or amended, or 
 otherwise dealt with in such manner and upon such. terms 
 as the Court or Judge shall think fit. 
 
 ORDER LX. Order LX. 
 
 ( ll'licers. 
 
 Officers. ~ 
 
 1. All officers who, at the time of the commencement 
 of the said A.ct shall be attached to the Court of 
 Chancery shall be attached to the Chancery Division of
 
 308 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Order LX. 
 
 Officers. 
 
 the said Higli Court ; and all officers who at the time of 
 the commencement of the said Act shall he attached to 
 the Court of Queen's Bench shall he attached to the 
 Queen's Bench Division of the said High Court; and 
 all officers who at the time of the commencement of the 
 said Act shall he attached to the Court of Common Pleas, 
 shall he attached to the Common Pleas Division of the 
 said High Court ; and all officers who at the time of the 
 commencement of the said Act shall he attached to the 
 Court of Exchequer, shall he attached to the Exchequer 
 Division of the said High Court ; and all officers who at the 
 time of the commencement of the said Act shall he attached 
 to the Court of Prohate, the Court of Divorce, and the 
 Court of Admiralty respectively shall he attached to the 
 Prohate, Divorce, and Admiralty Division of the said 
 High Court. 
 
 2. Officers attached to any division shall follow the 
 appeals from the same division, and shall perform in the 
 Court of Appeal analogous duties in reference to such 
 appeals as the registrars and officers of the Court of Chan- 
 cery usually performed as to rehearings in the Court of 
 Appeal in Chancery, ami as the Masters and officers of 
 the Court of Queen's Bench, Common Pleas, and Ex- 
 chequer respectively performed as to appeals heard hy the 
 Court of Exchequer Chamher. 
 
 See also as to officers, Part V. of the Judicature Act, 1873, ante, 
 pp. 101, ct seq ; and the definition of " proper officer " in Order 
 IjXII.,post, p. 312. 
 
 Order LXI. 
 Sittings and 
 Vacations. 
 
 ORDER LXI. 
 Sittings and Vacations 
 
 1. The sittings of the Court of Appeal and the sittings 
 in London and Middlesex of the High Court of Justice 
 shall he four in every year, viz., the Michaelmas sittings, 
 the Hdary sittings, the Easter sittings, and the Trinity 
 sittings. 
 
 The Michaelmas sittings shall commence on the 2nd of 
 Novemher and terminate on the 21st of Decemher ; the 
 Hilary sittings shall commence on the 11th of January 
 and terminate en the Wednesday before Easter ; the Easter 
 sittings shall commence on the Tuesday after Easter week 
 and terminate on the Friday before "Whitsunday. 
 
 The Trinity sittings shall commence on the Tuesday 
 after Whitsun week and terminate on the 8th of August.
 
 FIRST SCHEDULE. RULES OF COURT. 309 
 
 By the Judicature Act, 1873 : — Order LXI. 
 
 S. 20. The division of the legal year into terms shall be abo- fKK?* 
 lished so far as relates to the administration of justice; and 
 there shall no longer be terms applicable to any sitting or busi- 
 ness of the High Court of Justice, or of the Court of Appeal, 
 or of any Commissioners to lohom any jurisdiction may be 
 assigned under this Act; but in all oilier cases in which, 
 under tin- law now existing, the terms into which the legdl 
 year is divided are used as a measure fur determining the 
 time id or within which any act is required to be done, the 
 same may continue to be referred to for the same or the like 
 purpose, taxless and until provision is otherwise made by any 
 lawful authority. Subject to rides of Court, the High Court 
 of justice and the Court of Appeal, and the judges thereof 
 respectively, or any such Commissioners as aforesaid, shall 
 hare power to sit and act, at any time, and at any place, 
 for the transaction of any part of the business of such 
 Courts respectively, or of such judges or commissioners, or 
 for the discharge of any duty which by any Act of Parlia- 
 ment, or otherwise, is required to be discharged during or 
 after term. 
 
 S 29. Her Majesty, by commission of assize or by any other 
 commission, either general or special, may assign to any 
 Judge or Judges of the High Court of Justin- or other per- 
 sons usually named, in commissions of assize, the duty of 
 trying and determining within any place or district specially 
 fixed for that purpose by such commission, any causes or 
 matters, or any questions or issues of fact or of law, or 
 partly of fact and partly of law, in any cause or matter 
 ili- pending in the said High Court, or the exercise of any 
 civil or criminal jurisdiction capable of being exercised by 
 I lie said High Court; and any commission so granted by 
 Her Majesty shall be of the same validity as if it were 
 enacted in the body of this Act ; and any Commissioner or 
 Commissioners appointed in pursuance of this section shall, 
 when engaged in the exercise of any jurisdiction assigned la 
 him or them in pursuance of this Act, be deemed to consti- 
 tute a Court of the said High Court of Justice; and, sub- 
 ject to any restrictions or conditions imposed by Hides of 
 Court and fo the power of transfer, any parly to any cause 
 or matter involving the trial of a question or issm- of fact, 
 or partly of fact and partly of law, may. with the leave of 
 the judge or judges to whom or to whose division tin- cause 
 or matter is assigned, require the question or issue fo be 
 tried and determined by a Commissioner or Commissioners 
 as aforesaid, or at sittings to be held in Middlesex or
 
 310 SUPREME COURT OF JUDICATURE ACT, 1875 
 
 Order lxi. London as hereinafter in this Act mentioned, and. such 
 
 Vacation^ question or issue shall be tru d and determined accordingly. 
 
 — A cause or matter not involving any question or issue of 
 
 fact, may be tried and determined in like manner with the 
 
 consent of all the parties thm to. 
 
 8. 30. Subject to Rules of Court, sittings for tin- trial by 
 jury of causes and questions or issues of fact shcdl be held 
 in Middlesex and London, and such sittings shcdl, so far 
 as is reasonably practicable, and subject to vacation*, be 
 held continuously throughout the year by as many judges 
 as the business to be disposed of may render necessary. 
 Any judge of the High Court of Justice sitting for the 
 trial of causes and issues in Middlesex or London, at any 
 place heretofore accustomed, or to be hereafter determined 
 by Rules of Court, shall be deemed to constitute a Court of 
 the said High Court of Justice. 
 
 2. The vacations to be observed in the several courts 
 and offices of tlie Supreme Court shall be four in every 
 year, viz., the Long vacation, the Christmas vacation, the 
 Easter vacation, and the Whitsun vacation. 
 
 The Long vacation shall commence on the 10th of 
 August and terminate on the 24th of October. The 
 Christinas vacation shall commence on the 24th of 
 December and terminate on the 6th of January. 
 
 The Easter vacation shall commence on Good Friday 
 and terminate on Easter Tuesday; and the Whitsun 
 vacation shall commence on the .Saturday before "Whit- 
 sunday and shall tenninate on the Tuesday after Whit- 
 sunday. 
 
 By the Judicature Act, 1873 : — 
 
 8. 20. Her Majesty in Council may from time to ti 
 upon any report or recommendation of the judges by whose 
 od_ rice Her Majesty is hereinafter authorised to make rules 
 before the commencement of this Act, and after the com- 
 mencement of this Art upon any report or recommendation 
 of the Council of Judges of the Supreme Court hereinafter 
 mentioned, with the consent of the Lord Chancellor, make, 
 revoke, or modify, orders regulating the /-oration* to 
 observed by the High Court of Justice and the High Court 
 of Appeal, and in the offices of the said Courts respectively ; 
 and any Order in Council made pursuant to this section 
 shall, so long as it continues in force, h of the samt effect 
 as if it were contained in this Act ; and Rules of Court
 
 FIRST SCHEDULE. — RULES OF COURT. 311 
 
 may be made for carrying the same into effect in the same OiderLXi. 
 manner as if such Order in Council were part of this Act. vacatfonf. ad 
 In the meantime, and subject thereto, the said vacations — 
 shall lir fixed in the same manner, and by the same 
 authority, as if this Ad, hud not passed. This section 
 shall come into operation immediately upon the passing of 
 this Act. 
 
 3. The days of the commencement and termination of 
 each sitting and vacation shall he included in such sitting 
 and vacation respectively. 
 
 4. The several offices of the Supreme Court shall he 
 open on every day of the year, except Sundays, Good 
 Friday, Monday and Tuesday in Easter week, Whit 
 Monday, Christmas Day, and the next following working- 
 day, and all days appointed hy proclamation to he ohserved 
 as days of general fast, humiliation, or thanksgiving. 
 
 5. Two of the Judges of the High Court shall he selected 
 in the commencement of each long vacation for the hearing 
 at London or Middlesex during vacation of all such appli- 
 cation as may require to he immediately or promptly heard. A> £&>. 3~4/ 
 Such two Judges shall act as vacation Judges for one year 
 
 from their appointment. In the absence of arrangement 
 between the Judges, the two vacation Judges shall he the 
 two Judges last appointed (whether as Judges of the said 
 High Court or of any Court Avhose jurisdiction is hy the 
 said Act transferred to the said High Court) who have not 
 already served as vacation Judges of any such Court, and 
 if there shall not he two Judges for the time being of the 
 said High Court who shall not have so served, then the 
 I \v< i vacation Judges shall be the Judge (if any) who has 
 not so served and the seinor Judge or Judges who has or 
 have so served once only according to seniority of appoint- 
 ment, whether in the said High ( !ourt or such other Court 
 as aforesaid. The Lord Chancellor shall not be liable to 
 serve as a vacation Judge. 
 
 By the Judicature Act, 1873 : — 
 
 S. 28. Provision shall be made by rules of Court for the 
 hearing, in London or Middlesex, during ran//;,,,, by Judges 
 of the High Court of Justice and the Court of Appeal 
 respectively, of all such applications as may require to be 
 immediately or promptly heard. 
 
 No provision, it will be observed, is made for the attendance of 
 Vacation Judges of the Court of Appeal.
 
 312 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 order lxi. 6. The vacation Judges may sit either separately or 
 Vacations; together as a Divisional Court as occasion shall require, 
 and may hear and dispose of all actions, matters, and 
 other business to whichever division the same may he 
 assigned. Xo order made by a vacation Judge shall he 
 reversed or varied except by a Divisional Court or the 
 Court of Appeal, or a Judge thereof, or the Judge who 
 made the order. Any other Judge of the High Court may 
 sit in vacation for any vacation Judge. 
 
 9. The vacation Judges of the High Court, may dispose 
 of all actions, matters, and other business of an urgent 
 nature during any interval between the sittings of any divi- 
 sion of the High Court to which such business may be 
 assigned, although such interval may not be called or 
 known as a vacation. 
 
 Order LXI I, 
 Exceptions 
 from the 
 Rules. 
 
 ORDER LXII. 
 
 Exceptions from the Rules. 
 
 Nothing in these Rides shall affect the practice or 
 procedure in any of the following causes or matters : — 
 Criminal proceedings : 
 Proceedings on the Crown side of the Queen's Bench 
 
 Division : 
 Proceedings on the Revenue side of the Exchequer 
 
 Division : 
 Proceedings for divorce or other matrimonial causes. 
 
 See ?. 21 of the Act of IS 75, ante, p. 138 ; and note to title of this 
 schedule, ante, p. 151. 
 
 < )rder 
 LXIII. 
 Interpreta- 
 tion of terms 
 
 OEDEE LXIII. 
 
 Interpretation of Terms. 
 
 The provisions of the 100th section of the Act shall 
 apply to these Eules. 
 
 In the construction of these Rides, unless there is any- 
 thing in the subject or context repugnant thereto, the 
 severals words hereinafter mentioned or referred to shall 
 have or include the meanings following: — 
 
 "Person" shall include a body corporate or politic :
 
 FIRST SCHEDULE. RULES OF COURT. 313 
 
 " Probate actions " shall include actions and other Order 
 matters relating to the grant or recall of probate i^rareta- 
 or of letters of administration other than common tiori of terms 
 form business : 
 
 " Proper officer" shall, unless and until any rule to the 
 contrary is made, mean an officer to lie ascertained 
 as follows : — 
 
 ("). Where any duty to he discharged under the Act or 
 these Rides is a duty which has heretofore been 
 discharged by any officer, such officer shall continue 
 to be the proper officer to discharge the same : 
 
 (b). Where any new duty is under the Act or these 
 Pules to be discharged, the proper officer to dis- 
 charge the same shall be such officer, having pre- 
 viously discharged analogous duties, as may from 
 time to time be directed to discharge the same, in 
 the case of an officer of the Supreme Court, or the 
 High Court of Justice, or the Court of Appeal, not 
 attached to any division, by the Lord Chancellor, 
 and in the case of an officer attached to any divi- 
 sion, by the President of the division, and in the 
 case of an officer attached to any Judge, by such 
 Judge : 
 
 •' The Act " and " the said Act" shall respectively mean 
 the Supreme Court of Judicature Act, 1873, as 
 amended by this Act. 
 
 See s. 100 of the Judicature Act, 1873, ante, p. 113. 
 As to officers, see ss. 77 to 84 of the Judicature Act, 1873, ante, 
 pp. 101-108 ; and Order LX., ante, pp. 101, 107.
 
 315 
 
 APPENDIX (A). 
 
 PART I. Parti. r 
 
 V orms of 
 
 Forms of Writs of Summons, &c. wnts^ 
 
 No. 1. 
 187 . [Here put the letter and number.] A - D - l8 75- 
 In the High Court of Justice. Between A. B. Plaintiff, Titled full.. 
 
 Division. and 
 
 C. D. and E. F. Defendants, 
 Victoria, by the grace of God, &c. 
 To C. D., of in the county of and E. F., of 
 
 We command you, That within eight days after the service o£ 
 this writ on you, inclusive of the day of such service, you do cause 
 an appearance to be entered for you in the Division of Our 
 
 High Court of Justice in an action at the suit of A. B. ; and take 
 notice, that in default of your so doing the plaintiff may proceed 
 therein, and judgment may be given in your absence. Witness, &c. 
 Memorandum to be subscribed on the writ. 
 
 N.B. — This writ is to be served within {twelve) calendar 
 months from the date thereof, or, if renewed, from the 
 date of such renewal, including the day of such date, 
 and not afterwards. 
 The defendant [or defendants] may appear hereto by entering 
 an appearance [or appearances] either personally or by 
 solicitor at the [ ] office at 
 
 Indorsements to be made on the writ before issue thereof. 
 The plaintiff's claim is for, die. 
 
 This writ was issued by E. F., of solicitor for the said 
 
 plaintiff, who resides at , or, this writ was 
 
 issued by the plaintiff in person who resides at 
 [mention tin city, town, or parish, and also tht name of the street and 
 number of the house of the plaintiff's residence, if any]. 
 Indorsement to be made on the writ after service /hereof. 
 This writ was served by X. )'. mi L. M. [the defendant or one of 
 the defendants], on Monday, the day of , IS . 
 
 (Signed) X. Y. 
 
 No. 2. 
 
 Writ fo tervia out of the jurisdiction, or when notict in lieu of 
 i vice is tu In given out of the jurisdiction. 
 
 187 . | Hi i' /"i f '/"' letter and number.] 
 En the High Court of Ju Between .4. B. Plaintiff, 
 
 Division. and 
 
 < '. I>. and /'. I'. Defendants. 
 Victobia, by the grace of God, &c. 
 To 0. V., of 
 We command you, 0. D., Thai within [here insert i In- number of 
 days directed by th '' " '' or " Judy ordering the service or notice] 
 
 P 2
 
 316 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Part I. after the service of this writ [or notice of this writ, as the case may be] 
 
 Writs! on vou ' inclusive of the day of such service, you do cause an appear- 
 
 — ance to he entered for you in the division of Our High 
 
 Court of Justice in an action at the suit of A. B. ; and take notice, 
 / rr that in default of your so doing the plaintiff mayAly leave of the 
 
 fit- P 1 Court or a Judg(pproceed therein, and judgment may he given in 
 
 %- ^ ^-.tf— your absence. Witness, &c, 
 ty^ 3-/ Memorandum and Indorsements as in Forni Xo. 1. 
 
 3 ^ Indorsement to he made on the vcrit before the issue thereof. 
 
 X.B. — This irrit is to be used where the defendant or all the defen- 
 dants or one or more defendant or defendants is or are end of the 
 jurisdiction. 
 
 Xo. 3. 
 
 Notice of Writ in lieu of service to be given out of the jurisdiction. 
 
 187 . [Here put the letter and number.] 
 Between A. B. Plaintiff, 
 
 and 
 C. J'.. E. R, and G. II., Defendants. 
 
 To a. a., of 
 
 Take notice that A. B., of has commenced 
 
 an action against you, G. II., in the division of Her Majesty's 
 
 High Court of Justice in England, by writ of that Court, dated the 
 day of , a.d. IS ; which writ is indorsed as 
 
 follows [copy in fidl the indorsements], and you are required within 
 days after the receipt of this notice, inclusive of the day of 
 such receipt, to defend the said action, by causing an appearance t<> 
 be entered for you in the said Court to the said action ; and in 
 default of your so doing, the said A. B. may/T>y leave of the Court or 
 a Judge proceed therein,. and judgment may he given in your absence. 
 You may appear to fhe said writ by entering an appearance per- 
 sonally or by your solicitor at the [ ] office at 
 
 (Signed) A. B., of Ac. 
 
 or 
 X. )'., of ,lv. 
 
 In the High Court of Justice. Solicitor for A.B. 
 
 Division. 
 
 Xo. 4. 
 
 Writ in Admiralty action in rem. 
 
 187 . [Hereput tlie letter and number.] 
 
 In the High Court of Justice. 
 Admiralty Division. 
 
 Between .4. B., plaintiff, 
 and 
 Owners. 
 Victoria, &c. 
 To the owners and parties interested in the ship or vessel [Mary] 
 [or cargo, dr., us tin cose may be] of the port of 
 
 We hereby authorize officer of Our Supreme Court, 
 
 ami all and singular his substitutes, to arrest the ship or vessel 
 [Mary], of the port of and the cargo laden therein 
 
 [or cargo, lie, as the case may be], and to keep the same under safe 
 arrest until he shall receive further orders from Us. And We 
 command you, the owners and other parties interested in the said 
 ship and cargo ["/• cargo, &c, as the case may be] that within eight
 
 FIRST SCHEDULE. APPENDIX (a). 317 
 
 days after the arrest of the said vessel [or cargo, c(r., as the case may Part I. 
 be] you do cause an appearance to be entered for you in the w"yJ s 
 Admiralty Division of our High Court of Justice in an action at the ~l. 
 suit of A. B. ; and take notice that in default of your so doing Our 
 said Court will proceed to hear the said action and to pronounce 
 judgment therein, your absence notwithstanding. 
 
 No. 5. 
 
 Form of Mememorandum for Renewed Writ. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 Seal renewed writ of summons in this action indorsed as follows 
 
 [Copy original writ and the indorsements.} 
 
 No. 6. 
 Memorandum of Appearance. 
 
 187 . [Here put the letter and number.'] 
 
 High Court of Justice. 
 
 [Chancer)/] Division. 
 
 A. B. v. C. I)., and others. 
 
 Enter an appearance for 
 in this action. 
 
 Dated this day of 
 
 The place of business of A'. V 
 His address for service is 
 
 A*. Y., 
 
 Solicitor for the Defendant. 
 
 or [C. 1)., 
 
 Defendant in person. 
 The address of C. D. is 
 His address for service is 
 
 The said defendant [requires, or, does not require] a statement of 
 complaint to be filed and delivered. 
 
 No. 7. 
 
 [Here put the letter and number.] 
 In the High Court of Justice. 
 Queen's Bench (or Chancery, C. P., <>r, &c.) Division. 
 Between A. IS., plaintiff, 
 and 
 C. />., and 
 E. /•'., defendants. 
 The defendant C. />. limits his defence to part only of the property 
 mentioned in the writ in this action, that i- to say, to the close 
 called "the Big field.'' 
 
 yours, &c, 
 
 <;. //., 
 
 Solicitor for the said defendant C. />. 
 To Mr. A". >'., plaintiff's solicitor.
 
 4T,'C. &Z+& 
 
 318 supreme court of judicature act, 1875. 
 
 Indorse- PART II. 
 
 merits. 
 
 Section* I. 
 
 General Indorsements. 
 
 In Hatters assigned hg the 34 'A Section of the Act to the Chancery 
 Division. 
 
 1. Creditor to administer Estate. 
 
 /& T>. dcy / The plaintiff's claim is as a creditor of X. T., of 
 
 Ji £4* /oct deceased, to have the [real and] personal estate of the said X. T. 
 
 administered. The defendant C. D. is sued as the administrator of 
 the said X. Y. [and the defendants E. F. and G. H. as his co-heirs- 
 at-law], 
 
 2. Legatee to administer Estate. 
 
 The plaintiff's claim is as a legatee under the will dated the 
 day of IS , of X. Y. deceased, to have the 
 
 [real and] personal estate of the said X. Y. administered. The 
 defendant C. D. is sued as the executor of the said X. Y. [and the 
 defendants E. F. and G. II. as his devisees]. 
 
 3. Partnership. 
 
 The plaintiff's claim is to have an account taken of the partnership 
 dealings between the plaintiff and defendant [under articles of 
 partnership dated the day of ], 
 
 and to have the affairs of the partnership wound up. 
 
 4. By Mortgagee. 
 
 The Plaintiff's claim is to have an account taken of what is due 
 to him for principal, interest, and costs on a mortgage dated the 
 
 day of made between 
 
 [or by eleposit of title deeds], and that the mortgage may be enforced 
 by foreclosure or sale. 
 
 5. By Mortgagor. 
 
 The plaintiff's claim is to have an account taken of what, if any 
 thing, is due on a mortgage dated and made 
 
 between [parties], and to redeem the property comprised therein. 
 
 6. liaising Portions. 
 
 The plaintiff's claim is that the sum of /., which by 
 
 an indenture of settlement dated , was provided for the 
 
 portions of the younger children of may be raised. 
 
 7. Execution of Trusts. 
 
 The plaintiff's claim is to have the trust-: of an indenture dated 
 and made between , carried into 
 
 execution. 
 
 8. Cancellation or Rectification. 
 
 The plaintiff's claim is to have a deed dated and made 
 
 between [parties], set aside or rectified.
 
 FIRST SCHEDULE. APPENDIX (a). 
 
 319 
 
 9. Specific Performance. P arl IE 
 
 1 J . J Indorse- 
 
 The plaintiff's claim is for specific performance of an agreement ments. 
 elated the day of , for the sale by the plaintiff to the — 
 
 defendant of certain [freehold] hereditaments at . 
 
 Section II. 
 
 Money Claims where no Special Indorsement under Order III., Rule 6. 
 The plaintiff's claim is /. for the price of goods sold. 
 
 [This Form shall suffice whether the claim he in respect of rjoods sold 
 and delivered, or of goods bargained and sold.] 
 
 Goods sold. 
 
 The plaintiff's claim is 
 The plaintiff's claim is 
 
 i if goods sold, and 
 
 interest. 
 
 The plaintiff's claim is 
 The plaintiff's claim is 
 
 [or as the case may be.] 
 The plaintiff's claim is 
 The plaintiff's claim is 
 
 bution. 
 
 The plaintiff's claim is 
 The rjlaintiff's claim is 
 The plaintiff's claim is 
 The plaintiff's claim is 
 
 /. for money lent [and interest]. 
 I. whereof I. is for the price 
 
 for money lent, and I. for 
 
 /. for arrears of rent. 
 
 I. for arrears of salary as a clerk 
 
 I. for interest upon money lent. 
 I. for a general average contri- 
 
 7. for freight and demurrage. 
 /. for lighterage. 
 /. for market tolls and stallage. 
 I. for penalties under the Statute 
 
 I. for money deposited with the 
 
 [ 
 
 The plaintiff's claim is 
 defendant as a banker. 
 
 The plaintiff's claim is I. for fees for work done [and 
 
 I. money expended] as a solicitor. 
 
 The plaintiff's claim is I. for commission earned as [state 
 
 character as auctioneer, cotton, broker, <Cr.]. 
 
 The plaintiff's claim is /. for medical attendances. 
 
 The plaintiff's claim is 
 upon policies of insurance, 
 
 The plaintiff's claim is /. for the warehousing of goods 
 
 Money lent. 
 
 Several 
 
 demands. 
 
 Rent. 
 Salary, &c. 
 
 Interest. 
 
 General 
 average. 
 
 Freight, &c. 
 
 Tolls. 
 Penalties. 
 
 Bankers ha- 
 lance. 
 
 Fees, &c, as 
 solicitors. 
 
 Commission. 
 
 Tin- plaintiff's claim is 
 railway. 
 
 The plaintiff's claim is 
 house. 
 
 /. for the carriage of goods 1 >y 
 I. for the use and occupation of a 
 
 Medical at- 
 tendance, &c. 
 /. for a return of premiums paid Return of 
 
 premium. 
 Warehouse 
 rent. 
 
 Carriage of 
 goods. 
 
 Use and 
 occupation 
 of houses. 
 Hire of 
 goods. 
 Work clone. 
 Board and 
 lodging. 
 Schooling. 
 
 Money re- 
 ceived. 
 
 Fees of 
 office. 
 
 Money 
 overpaid. 
 
 /. for the hire of [furniture]. 
 
 I. for work done as a surveyor. 
 
 /. for hoard and lodging. 
 
 /. for the board, lodging and tuition 
 
 The plaintiff's claim is 
 
 The plaintiff's claim is 
 
 The plaintiff's claim is 
 
 The plaintiff's claim is 
 of X. )'. 
 
 The plaintiff's claim is /. for money received by the de- 
 
 ndant as solicitor [or factor, or collector, or, <kc. j of the plaintiff. 
 
 The plaintiff's claim is /. for fees received by the defendant 
 
 under colour of the office of 
 
 The plaintiff 's claim is I. for a return of money over- 
 
 ! for the carriage of goods by railway. 
 
 The plaintiff's claim is I. for a return of fees overcharged 
 
 by the defendant as 
 
 The plaintiff's claim is /. for a return of money deposited 
 
 with the defendant as stakeholder. 
 
 Return of 
 money by 
 stakeholder.
 
 320 
 
 Part II. 
 Indorse- 
 ments. 
 
 Money won 
 from stake- 
 holder. 
 Money en- 
 trusted to 
 agent. 
 Money 
 obtained by 
 fraud. 
 
 Money paid 
 by mistake. 
 
 Money paid 
 for conside- 
 ration which 
 has failed. 
 
 iSUPREMK COURT OF .TUDICATl'RE ACT, lS7-~>. 
 
 Money paid 
 by surety foi 
 defendant. 
 
 Rent paid. 
 
 Money paid 
 on accommo- 
 dation bill. 
 
 Contribution 
 by surety. 
 
 By co-debtor 
 
 Money paid 
 for calls. 
 
 Money pay- 
 able under 
 award. 
 Life policy. 
 
 Money bond 
 
 Foreign 
 judgment. 
 
 Bill of ex- 
 change, «.ti 
 
 The plaintiff's claim is /. for money entrusted to the 
 
 defendant as stakeholder, and become payable to plaintiff. 
 
 The plaintiff's claim is /. for a return of money entrusted 
 
 to the defendant as agent to the plaintiff. 
 
 The plaintiff's claim is /. for a return of money obtained 
 
 from the plaintiff by fraud. 
 
 The plaintiff's claim is I. for a return of money paid to 
 
 the defendant by mistake. 
 
 The plaintiff's claim is /. for a return of money paid to 
 
 the defendant for [icorh to bt done, left undone : or, a bill to be token 
 a ji : not taken up, dr.] 
 
 The plaintiff's claim is I. for a return of money paid as a 
 
 deposit upon shares to be allotted. 
 
 The plaintiff's claim i> /. for moneypaid for the defendant 
 
 as his surety. 
 
 The plaintiff's claim is I. for m< mey paid for rent due by 
 
 the defendant. 
 
 The plaintiffs claim is /. upon a bill of exchange accepted 
 
 [or indorsed] for the defendant's accommodation. 
 
 The plaintiff's claim is /. for a contribution in respect of 
 
 money paid by the plaintiff as surety. 
 
 The plaintiff's claim is I. for a contribution in respect of 
 
 a joint debt of the plaintiff and the defendant, paid by the plaintiff. 
 
 The plaintiff's claim is I. for money paid for calls upon 
 
 shares, against which the defendant was bound to indemnify the 
 plaintiff. 
 
 /. for money payable under an 
 
 The plaintiff's claim is 
 award. 
 
 The plaintiff's claim is 
 the life of X. Y., deceased. 
 
 The plaintiff's claim is 
 of 1,000?., and interest. 
 
 The plaintiff's claim is 
 Court, in the Empire of Russia. 
 
 The plaintiff's claim is 
 defendant. 
 
 The plaintiff's claim i 
 
 /. upon a policy of insurance upon 
 /. upon a bond to secure payment 
 /. upon a judgment of the 
 /. upon a cheque drawn by the 
 
 Suret\ 
 
 Del crcden 
 
 agent. 
 
 Calls. 
 
 Waygoing 
 crops, &c. 
 
 /. upon a bill of exchange accepted 
 [or drawn or indorsed] by the defendant. 
 
 The plaintiff's claim is I. upon a promissory note made [or 
 
 indorsed] by the defendant. 
 
 The plaintiff's claim is /. against the defendant A. B. as 
 
 acceptor, and against the defendant C. I>. as drawer [or indorser] 
 of a bill of exchange. 
 
 The plaintiff's claim is I. against the defendant as surety 
 
 for the price of goods sold. 
 
 The plaintiff's claim is 7. against the defendant A. B. as 
 
 principal, and against the defendant C. 1). as surety for the price of 
 goods sold [or arrears of rent, or for money lent, or for money received 
 by thf defendant A. B., as traveller for the plmntijjs, or,&c] 
 
 The plaintiff's claim is I. against the defendant as a del 
 
 credere agent for the price of goods sold [or as losses under a policy]. 
 
 The plaintiffs claim is /. for calls upon shares. 
 
 The plaintiff's claim is /. for crops, tillage, manure [or as 
 
 the case may be] left by the defendant as outgoing tenant of a farm.
 
 FIRST SCHEDULE. APPENDIX (a). 321 
 
 Part II. 
 Indorse- 
 SECTION III. ments. 
 
 Indorsement for Costs, d-c. [add to the above Forms]. 
 And 1. for costs ; and if the amount claimed be paid to 
 
 the plaintiff or his solicitor within four days [or if the writ is to be 
 served out of the jurisdiction, or notice in lieu of service allowed, insert 
 the time for appearance limited by the order] from the service hereof, 
 further proceedings will be stayed. 
 
 Section IV. 
 Damages and other Claims. 
 
 The plaintiff's claim is for damages for breach of a contract to Agent, &c. 
 employ the plaintiff as traveller. 
 
 The plaintiff's claim is for damages for wrongful dismissal from 
 the defendant's employment as traveller [and I. for arrears 
 
 of wages]. 
 
 The plaintiff's claim is for damages for the defendant's wrongfully 
 quitting the plaintiff's employment as manager. 
 
 The plaintiffs claim is for damages for breach of duty as factor 
 [or, d-c.] of the plaintiff [and I. for money received as factor, dc] 
 
 The plaintiff's claim is for damages for breach of the terms of a Apprentices, 
 deed of apprenticeship of X. Y. to the defendant [or plaintiff]. 
 
 The plaintiff's claim is for damages for non-compliance with the Arbitration. 
 award of X. Y. 
 
 The plaintiff's claim is for damages for assault [and false im- Assault, &c. 
 prisonment, and for malicious prosecution]. 
 
 The plaintiff's claim is for damages for assault and false impri- *- y . " u ?° and 
 somnent of the plaintiff C. D. 
 
 The plaintiff's claim is for damages for assault by the defendant band and U "~ 
 C. D. w ife. 
 
 The plaintiff's claim is for damages for injury by the defendant's Solicitor, 
 negligence as solicitor of the plaintiff. 
 
 The plaintiff's claim is for damages for negligence in the custody Bailment. 
 uf goods [and for wrongfully detaining the same]. 
 
 The plaintiff's claim is for damages for negligence in the keeping Pledge. 
 of goods pawned [and for icrongfutty detaining the same]. 
 
 The plaintiff's claim is for damages for negligence in the custody Hire. 
 <>f furniture lent on hire [or a carriage lent], [and far wrongfully d-c.]. 
 
 The plaintiff's claim is for damages for wrongfully neglecting [or Banker 
 refusing] to pay the plaintiff's cheque. 
 
 The plaintiff's claim is for damages for breach of a contract to Bill, 
 accept the plaintiff's drafts. 
 
 The plaintiff's claim is upon a bond conditioned not 
 the trade of a 
 
 The plaintiff's claim is for damages for refusing t 
 plaintiff's goods by railway. 
 
 The plaintiff's claim is for damages for refusing t 
 plaintiff by railway. 
 
 Tin plaintiff's claim is for damages for breach of i 
 about the carriage and delivery of coals by railway. 
 
 The plaintiff's claim is for damages for breach of i 
 about the carriage and delivery of machinery by sea. 
 
 The plaintiff's claim is for damages for breach of charter-party <>f Charter- 
 ship [Afary]. i' artv - 
 
 The plaintiff's claim is for return of household furniture, or, &c, Claim foi 
 or their value, and for damages for detaining the same. return of 
 
 goods ; da- 
 
 to carry on 
 
 Bond. 
 
 ;< i carry the 
 
 Carrier 
 
 ;< i carry the 
 
 
 luty in and 
 
 
 luty in and 
 
 
 I' •> 
 
 mages.
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 322 
 
 Part II. 
 Indorse- 
 ments. 
 
 Damages for The plaintiff's claim is for wrongfully depriving plaintiff of goods, 
 
 depriving of uouse hold furniture, &c. 
 
 goods. 
 
 The plaintiff's claim is for damages for libel. 
 The plaintiff's claim is for damages f < >r .slander. 
 The plaintiff's claim is in replevin for goods wrongfully distrained. 
 The plaintiff's claim is for damages for improperly distraining. 
 [This Form shall be sufficient whether the distress complained of he 
 wrongful or excessive, <</■ irregular, mid whether the claim be 
 for damages only, or for double value}. 
 The plaintiff's claim is to recover possession of a house, No. 
 in street, or of a farm called Blackacre, situate in the 
 
 parish of in the county <if 
 
 To establish The plaintiff's claim is to establish his title to [here describe pro- 
 title and perty], and to recover the rents thereof. 
 
 [The two previous Forms may he combined}. 
 The plaintiff's claim is for dower. 
 
 The plaintiff's claim is for damages for infringement of the 
 plaintiff's right of fishing. 
 
 The plaintiff's claim is for damages for fraudulent misrepresenta- 
 tion on the sale of a horse [or a business, or ska/res, or, <fcc] 
 
 The plaintiff's claim is for damages for fraudulent misrepresenta- 
 tion of the credit of A. B. 
 
 The plaintiff's claim is for damages for breach of a contract of 
 guarantee for A. B. 
 
 The plaintiff's claim is for damages for breach of a contract to 
 indemnify the plaintiff as the defendant's agent to distrain. 
 
 The plaintiff's claim is for a loss under a policy upon the ship 
 " Royal Charter," and freight or cargo [or for return of premiums], 
 [This form shallbe sufficient whether the loss claimed be total or partial.] 
 The plaintiff's claim is fur a loss under a policy of fire insurance 
 upon house and furniture. 
 
 The plaintiff's claim is for damages for breach of a contract to 
 insure a house. 
 
 The plaintiff's claim is for damages for breach of contract to 
 keep a house in repair. 
 
 The plaintiff's claim is fcr damages for breaches of covenants con- 
 tained in a lease of a farm. 
 
 The plaintiff's claim is for damages for injury to the plaintiff from 
 the defendant's negligence as a medical man. 
 
 The plaintiff's claim is for damages fur injury by the defendant's dog. 
 The plaintiff's claim is for damages for injury to the plaintiff [or, 
 if by husband and wife, to tin plaintiff, G. U.] by the negligent 
 driving of the defendant or his servants. 
 
 The plaintiff's claim is for damages for injury to the plaintiff while 
 a passenger on the defendant's railway by the negligence of the 
 defendant's servants. 
 
 The plaintiff's claim is for damages for injury to the plaintiff at the 
 defendant's railway station, from the defective condition of the station. 
 The plaintiff's claim is as executor of A. B. deceased, for damages 
 fur the death of the said -1. B., from injuries received while a pas- 
 senger on the defendant's railway, by the negligence of the 
 defendant's servants. 
 
 The plaintiff's claim is for damages for bread) of promise of 
 marriage. 
 
 The plaintiffs claim is in quare impedit for 
 
 The plaintiff's claim is for damages for the seduction of the 
 plaintiff's daughter. 
 
 Defamation. 
 
 Distress. 
 Replevin. 
 Wrongful, 
 distress. 
 
 Ejectment. 
 
 recoverrents 
 
 Dower. 
 
 Fishery. 
 
 Fraud. 
 
 Guarantee. 
 
 Insurance. 
 
 Fire insu- 
 rance. 
 
 Landlord 
 And tenant. 
 
 Medical man 
 
 Mischievous 
 
 animal. 
 
 Negligence. 
 
 Lord Camp- 
 Act. 
 
 Promise of 
 marriage. 
 
 ^Juare 
 
 impedit. 
 
 Seduction.
 
 FIRST SCHEDULE. APPENDIX (a). 323 
 
 Part II. 
 
 Indorse- 
 ments. 
 
 The plaintiff's claim is for damages for breach of contract to accept $ a i e f 
 and pay for goods. goods. 
 
 The plaintiff's claim is for damages for non-delivery [or short 
 delivery, or defective quality, or other breach of contract of sale] of 
 cotton [or, <Lr.] 
 
 The plaintiff's claim is for damages for breach of warranty of a 
 horse. 
 
 The plaintiff's claim is for damages for breach of a contract to sell Sale of land. 
 [or purchase] land. 
 
 The plaintiff's claim is for damages for breach of a contract to let 
 [or take] a house. 
 
 The plaintiff's claim is for damages for breach of a contract to sell 
 [or purchase] the lease, with goodwill, fixtures, and stock in trade of 
 a public-house. 
 
 The plaintiff's claim is for damages for breach of covenant for title 
 [or for quiet enjoyment, or, &c] in a conveyance of land. 
 
 The plaintiff's claim is for damages for wrongfully entering the Trespass to 
 plaintiff's land and drawing water from his well [or cutting hi* grass, l all d. 
 or pulling dovm his timber, or pulling down his fences, or removing hi* 
 gate, or using his road or 'path, or crossing his field, or depositing sand 
 there, or carrying away gravelfrom thence, or carrying away stones 
 from his river]. 
 
 The plaintiff's claim is for damages for wrongfully taking away Support, 
 the supporrt of plaintiff's land [or house, or mine]. 
 
 The plaintiff's claim is for damages for wrongfully obstructing a Way. 
 way [public highway or a private way]. 
 
 The plaintiff's claim is for damages for wrongfully diverting [or Watercourse 
 obstructing, or polluting, or diverting water from] a watercourse. ° :c - 
 
 The plaintiff's claim is for damages for wrongfully discharging 
 water upon the plaintiff's land [or into the plaintiff's mine]. 
 
 The plaintiff's claim is for damages for wrongfully obstructing the 
 plaintiff's use of a well. 
 
 The plaintiff's claim is for damages for the infringement of the Pasture. 
 plaintiffs right of pasture. 
 
 [This Form shall be sufficient whatever thi naiurt of the right to 
 pasture be.] 
 
 The plaintiff's claim is for damages for obstructing the access of Light. 
 light to plaintiff's house. 
 
 The plaintiff's claim is for damages for the infringement of the Sporting. 
 plaintiff's right of sporting. 
 
 The plaintiff's claim is for damages for the infringement of the Patent. 
 plaintiff's patent. 
 
 The plaintiff's claim is for damages for the infringement of the Copyright. 
 : Lff'g copj right. 
 
 The plaintiff's claim is for damages for wrongfully using [or Trade mark. 
 imitating] the plaintiff's trade mark. 
 
 The plaintiff's claim is for damages for breach of a contract to Work. 
 build a ship [or to repair a house, <lr.j 
 
 The plaintiff's claim is for damages for breach of a contract to 
 employ the plaintiff to build a ship, &c. 
 
 The plaintiff's claim is for damages to his bouse, trees, crops, &c., 
 d by noxious vapours from the defendants factory [or, &c] 
 
 Tin- plaintiff's claim is for damages from nuisance by noise from Nuisance, 
 bhi ' j ' i' ndant's works [or stables, or, dec] 
 
 The plaintiff's claim is for damages for loss of the plaintiff's Innkeeper. 
 ■_ Is in the defendant's inn. 
 
 Add to Indorsement : — 
 
 And for a mandamus. Mandamus.
 
 324 
 
 Part I f . 
 Indorse- 
 ments. 
 
 Injunction. 
 
 Mesne 
 profits. 
 Arrears of 
 rent. 
 
 Breach of 
 covenant. 
 
 SUPREME COURT OF JUDICATURE ACT, 1S7"». 
 
 Add to Indorsement : — 
 
 And for an Injunction. 
 [Add to Indorsement where claim is to land, or to establish title, m 
 loth,] 
 
 And for mesne profits. 
 
 And for an account of rents or arrears of rent. 
 And for breach of covenant for [repairs]. 
 
 Section V. 
 Probate. 
 
 1. By an executor or legatee propounding a will in solemn form. 
 
 The plaintiff claims to be executor of the last will dated the 
 day of of C. II'., late of 
 
 Gentleman, deceased, who died on 
 the day of 
 
 and to have the said will established. This writ is issued against 
 you as one of the next of kin of the said deceased [or as the cast 
 may be]. 
 
 2. By 'in executor or legatee of •< former will, or next of Jem, &c, 
 of the deceased seeking to obtain the revocation of o Probate granted 
 in common form. 
 
 The plaintiff claims to be executor of the last will dated the 
 
 day of of C. 1)., late of 
 
 Gentleman, deceased, who died on 
 the day of 
 
 and to have the probate of a pretended will of the said deceased, 
 dated the day of revoked. 
 
 This writ is issued against you as the executor of the said pretended 
 will [or as the case may be]. 
 
 3. By a n executor or legatee of a icill when letters of administration 
 have been granted as in an intestacy. 
 
 The plaintiff claims to be the executor of the last will of C. />.. 
 late of Gentleman, deceased, who 
 
 died nil the day of 
 
 dated the day of 
 
 The plaintiff claims that the grant of letters of administration of 
 the personal estate of the said deceased obtained by you should be 
 revoked, and probate of the said will granted to him. 
 
 4. I)'/ a person claiming a rjrant of administration as a next of 
 I'm nf tin deceased, but wliost interest as next of kin is disputed. 
 
 The plaintiff claims to be the brother and sole next of kin < if 
 C. I)., of Gentleman, deceased, who 
 
 died on the day i if 
 
 intestate, and to have as such a grant of administration to the 
 personal estate of the said intestate. This writ is issued against 
 you because you have entered a caveat, and have alleged that you 
 are the sole next of kin of the deceased [or as the case may be]. 
 
 (g) Section VI. 
 
 Admiralty. 
 
 1. Damagt to ressel by collision. 
 
 The plaintiffs a> owners of the vessel "Mary," of the port of 
 claim KM - -" the brig or vessel ••.lane" for
 
 FIRST SCHEDULE. APPENDIX (a). 325 
 
 damage occasioned by a collision which took place in the North Sea Part II 
 in the month of May last. > ndorse 
 
 _ _ 7 ,,. . mcnts. 
 
 1. Damage to cargo by collision. 
 
 The plaintiffs as owners of the cargo laden on board the vessel 
 "Mary," of the port of , claim £ against the 
 
 vessel "Jane," for damage done to the said cargo in a collision in the 
 North Sea in the month of May last. 
 
 [The two previous forms may be combined.] 
 
 3. Damage to cargo otherwise. 
 
 The plaintiff as owner of goods laden on board the vessel "Mary," 
 on a voyage from Lisbon to England, claims from the owner of the 
 said vessel £ for damage done to the said goods during 
 
 such voyage. 
 
 4. In causes of possession. 
 
 The plaintiff as sole owner of the vessel "Mary," of the port of 
 claims to have possession decreed to him of the said vessel. 
 
 5. The plaintiff claims possession of the vessel "Mary," of the 
 port of as owner of 4S-64th shares of the said vessel against 
 U. D., owner of 16-6 4th shares of the said vessel. 
 
 6. The plaintiff as part owner of the vessel "Mary," claims against 
 C. />., part owner and his shares in the said vessel £ as part 
 of the earnings of the said vessel due to the plaintiff. 
 
 7. The plaintiff as owner of 48-64th shares of the vessel "Mary," 
 of the port of , claims possession of the said brig as against 
 V. D., the master thereof. 
 
 8. The plaintiff under a mortgage, dated the day of 
 claims against the vessel "Mary," £ , being the amount of 
 his mortgage thereon, and £ for interest. 
 
 9. The plaintiff as assignee of a bottomry bond, dated the 
 
 day of , and granted by C. D., as master of the vessel "Mary," 
 
 of the port of , to A. B., at St. Thomas's, in the West 
 
 Indies, claims £ against the vessel "Mary," and the cargo 
 
 laden thereon. 
 
 10. By a 'part owner of the vessel. 
 
 The plaintiff as owner of 24-64th shares of the vessel "Mary," 
 being dissatisfied with the management of the said vessel by his co- 
 owners, claims that his co-owners shall give him a bond in £ 
 for the value of the plaintiff's said shares in the said vessel. 
 
 11. The plaintiffs as owners of the derelict vessel "Mary," of the 
 port < >f , claim to be put in possession of the said 
 vessel and her cargo. 
 
 12. By salvors. 
 
 The plaintiffs as the owners, master, and crew of the vessel 
 " Caroline," of the port of , claim the sum of £ 
 
 for salvage services performed by them to tin- vessel " Mary," off 
 the ( Inodwin Sands, on the day of 
 
 l:;. ( 'In!, ii for towage. 
 
 The plaintiffs as owners of the steam-tug "Jane," of the port of 
 , claim ' for towage services performed 
 
 by the said steam-tug to the vessel " Mary," on the day 
 
 of 
 
 1 I. Seamen's wages. 
 
 TIm plaintiffs as seamen on board the vessel "Mary," claim 
 £ for wages due to them, as follows (1), the mate 30/. for 
 
 two months' wages from the day of
 
 merits. 
 
 32G SUPREME COURT OP JUDICATURE ACT, 187*'. 
 
 Part II. 15. For necessaries. 
 
 Indorse- 'Yh.e plaintiff's claim £ for necessaries supplied to the 
 
 vessel " Mary," at the port of Xewcastle-on-Tyne, delivered on the 
 day of and the day of 
 
 Section VII. 
 
 Special Indorsements under Order III.. Rule G. 
 1. The plaintiff's claim is for the price of goods sold. The follow- 
 ing are the particulars : — 
 1873— 31st December- 
 Balance of account for butcher's meat to this £ s. d. 
 
 date 35 10 
 
 1874 — 1st January to 31st March. — 
 
 Butcher's meat supplied . . . 74 5 
 
 1874— 1st February. -Paid .... 
 
 Balance due . . 64 15 
 
 2. The plaintiff's claim is against the defendant A. B. as principal, 
 and against the defendant C. D. as surety, for the price of goods sold 
 to A. B. The following are the particulars : — 
 
 1874 — 2nd February. Guarantee by C. D. of the price of woollen 
 goods to be supplied to A. B. 
 
 £ s. d. 
 
 2nd February — To goods . . . . 47 15 
 
 3rd March— To goods 105 14 
 
 17th March— To goods 14 12 
 
 5th April— To goods . . . . .340 
 
 202 1 
 
 3. The plaintiff's claim is against the defendant, as maker of a 
 promissory note. The following are the particulars : — 
 
 Promissory note for 250/., dated 1st January 1S74, made by 
 defendant, payable four months after date. 
 
 £ 
 Principal ......... 250 
 
 Interest ......... 
 
 4. The plaintiff's claim is against the defendant A. B. as accejjtor, 
 and against the defendant Q. 1). as drawer, of a bill of exchange. The 
 following are the particulars : — 
 
 Bill of exchange for 500/., dated 1st January. 1874, drawn by 
 defendant C. I). upon and accepted by defendant A. B., jiayable three 
 months after date. 
 
 £ 
 
 Principal 500 
 
 Interest ......... 
 
 5. The plaintiff's claim is fur principal and interest due upon a 
 bond. The following are the particulars : — 
 
 Bond dated 1st January, 1873. Condition for payment of 100?. on 
 the 26th December, 1873. 
 
 £ 
 Principal due ........ 50 
 
 Interest ......... 
 
 6. The plaintiff's claim is for principal and interest due under a 
 covenant. The following are the particulars : — - 
 
 Deed dated covenant to pay 100/. and ;
 
 FIRST SCHEDULE. APPENDIX (b). 327 
 
 £ Part II. 
 
 Principal due SO [ndorse- 
 
 Interest ment l 
 
 Section VIII. 
 
 Indorsements of Character of Parties. 
 
 The plaintiff's claim is as executor [or administrator] of O. D., Executors. 
 deceased, for, &C. 
 
 The plaintiff's claim is against the defendant A. B., as executor [or, 
 tfcc] of C. D; deceased, for, dbc. 
 
 The jjlaintiffs claim is against the defendant A. B., as executor of 
 X. Y. , deceased, and against the defendant C. I)., in his personal 
 capacity for, &c. 
 
 The claim of the plaintiff C. 1). is as executrix of X. Y., deceased, By husband 
 and the claim of the plaintiff A. B. as her husband, for and wife, 
 
 The claim of the plaintiff is against the defendant C. JD., as ' . 
 executrix of the defendant C. I)., deceased, and against the defendant bmid' n and 1US 
 A. B., as her husband, for wife, exe- 
 
 The plaintiff's claim is as trustee under the bankruptcy of A. B., cutrix. 
 for 
 
 The plaintiff's claim is against the defendant as trustee under the Trustee in 
 bankruptcy of A. B., for bankruptcy. 
 
 The plaintiffs claim is as [or the plaintiff's claim is against the Trustees 
 defendant as] trustee under the will of A. B. [or under the settlement 
 upon the marriage of A. B. and X. Y., his wife]. 
 
 The plaintiff's claim is as public officer of the Bank, for 
 
 The plaintiff's claim is against the defendant as public officer of Public 
 the Bank, for officer. 
 
 The plaintiff's claim is against the defendant .4. B. as principal, 
 and against the defendant C. D. as public officer of the Bank, 
 
 as surety, for 
 
 The plaintiff's claim is against the defendant as heir-at-law of Heir and 
 .1. //., deceased. devisee. 
 
 The plaintiff's claim is against the defendant CD. as heir-at-law, 
 and against the defendant E. F. as devisee of lands under the will 
 of A. B. 
 
 The plaintiff's claim is as well for the Queen as for himself, Q»i tam 
 for action - 
 
 APPENDIX (I)). 
 
 Form 1. 
 
 Notia by Defendant !•> Third Parti/. 
 
 187 . [Sere put the letter and number.] 
 Notice filed , 187 . 
 
 hi tin; High < 'ciurt. 
 
 i'cmli Division. 
 
 Between A. B., plaintiff, 
 and 
 ( '. /'., defendant. 
 To Mr. A'. T. 
 
 Take notice that this action has been brought by the plaintiff
 
 328 SUPREME COURT OF JUDICATURE ACT, 187-">. 
 
 Forms. against the defendant [as surety for M. N., upon a bond conditioned 
 
 for payment of 2000?. and interest to the plaintiff. 
 
 The defendant claims to be entitled to contribution from you t< > 
 the extent of one-half of any sum which the plaintiff may recover 
 against him, on the ground that you are (his co-surety under the 
 said bond, or, also surety for the said M, N., in respect of the said 
 matter, under another bond made by you in favour of the said 
 plaintiff, dated the day of , a.d. )]. 
 
 Or [as acceptor of a bill of exchange for 500?., dated the 
 day of , A.D. , drawn by you before and accepted by 
 
 the defendant and payable three months after date. 
 
 The defendant claims to be indemnified by you against liability 
 under the said bill, on the ground that it was accepted for your 
 accommodation.] 
 
 Or [to recover damages for a breach of a contract for the sale and 
 delivery to the plaintiff of 1000 tons of coal. 
 
 The defendant claims to be indemnified by you against liability in 
 respect of the said contract, or any breach thereof, on the ground 
 that it was made by him on your behalf and as your agent.] 
 
 And take notice that, if you wish to dispute the plaintiff's claim 
 in this action as against the defendant C. D., you must cause an 
 appearance to be entered for you within eight days after service 
 of this notice. 
 
 In default of your so appearing, you will not be entitled in any 
 future proceeding between the defendant C. D. and yourself to 
 dispute the validity of the judgment in this action whether obtained 
 by consent or otherwise. 
 
 Or 
 
 X. )'., 
 
 (Signed) E. T. 
 
 Appearance to be entered at 
 
 Solicitor for the defendant, 
 E. T. 
 
 Form 2. 
 
 187 . [1 fire put the letter and number.] 
 In the High Court. 
 (Queen's Bench Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. I)., defendant. 
 
 The plaintiff confesses the defence stated in the paragraph of the 
 
 .defendant's statement of defence [or, of the defendant's further 
 
 statement of defence]. 
 
 Form 3. 
 
 1S7 . [Hen put the letter and number.] 
 
 In the High Com-t of Justice. 
 Division. 
 
 Between A. B., plaintiff, 
 
 and 
 
 C. D., defendant. 
 
 The particulars of the plaintiff's complaint herein, and of the 
 
 relief and remedy to which he claims to be entitled, appear by the 
 
 indorsement upon the writ of summons,
 
 FIRST SCHEDULE. — APPENDIX (b). 329 
 
 FORM 4. Forms. 
 
 " To the within-named X. Y. 
 " Take notice that if you do not appear to the within counter- 
 claim of the within-named C. J>. within eight days from the service 
 of this defence and counter-claim upon you, you will be liable to 
 have judgment given against you in your absence. 
 " Appearances are to be entered at 
 
 Form 5. 
 Notice of Payment into Court. 
 In the High Court of Justice. 1875. B. No. 
 
 Q. B. Division. 
 
 A. B. v. C. D. 
 Take notice that the defendant has paid into Court £ , and 
 
 says that that sum is enough to satisfy the plaintiff's claim (or the 
 ■plaintiff's claim for, <ir.) 
 To Mr. X. Y., 
 
 the Plaintiff's Solicitor. 
 
 Z., 
 
 Defendant's Solicitor^. 
 
 Form 6. 
 Acceptance of sum paid into Court. 
 In the High Court of Justice. 1875. B. No. 
 
 Q. B. Division. 
 
 A. B. v. C. D. 
 Take notice that the plaintiff accepts the sum of £ paid 
 
 by you into Court in satisfaction of the claim in respect of which it 
 is paid in. 
 
 Form 7. 
 Form of Interrogatories. 
 In the High Court of Justice. 1874. B. No. 
 
 Division. 
 
 Between A. B., Plaintiff, 
 and 
 ( '. IK, E. F., and G. II, Defendants. 
 Interrogatories on behalf of the above-named [plaintiff "or defen- 
 dant, C. />.] for the examination of the above-named [defendant* 
 /:. /•'. and G. II, or plaintiff], 
 1. Did not, &c. 
 '2. Has not, &c. 
 
 &c. &c. &c. 
 
 [The defendant E. V. is 'required to answer the inter- 
 rogatories nnudiered .] 
 [The defendant G. H. is required to answer the inter- 
 rogatories mi inhered, .] 
 
 Form 8. 
 Form of Answer to Interrogatories. 
 
 In the High Court of Justice. 1871. B. No. 
 
 I >i\ ision. 
 
 Between A. /!., Plaintiff, 
 and 
 C. />., K. /•'.. and G. II, Defendants. 
 The answer of the above-named defendant E. /•'. to the inter- 
 rogatories for his examination by the above-named plaintiff.
 
 330 .SUPREME COURT OP JUDICATURE ACT, 187't. 
 
 Forms. In answer to the said interrogatories, I, the above-named K. 1'.. 
 
 — make oath and say as follows : — 
 
 Form 9. 
 
 Form of Affidavit as to Documents. 
 In the High Court of Justice. 1874. B. Xo. 
 
 Division. 
 
 Between A. B., Plaintiff, 
 and 
 C. I)., Defendant. 
 I, the above-named defendant C. D., make oath and say as 
 follows : — 
 
 1. I have in my possession or power the documents relating to the 
 matters in question in this suit set forth in the first and second ports 
 of the first schedule hereto. 
 
 2. I object to produce the said documents set forth in the second 
 part of the said first schedule hereto. 
 
 3. That [here state upon what grounds tic objection is made, and 
 verify thefacts as far as may be~\. 
 
 4. I have had, but have not now, in my possession or power the 
 documents relating to the matters in question in this suit set forth 
 in the second schedule hereto. 
 
 5. The last-mentioned documents were last in my possession or 
 power on [state when], 
 
 6. That [hert statt what Juts become of the last-mentioned documents, 
 and in whose possession they im> r are]. 
 
 7. According to the best of my knowledge, information, and belief, 
 I have not now, and never had in my possession, custody, or power, 
 or in the possession, custody, or power of my solicitors or agents, 
 solicitor or agent, or in the posses-ion. custody, or power of any 
 other persons or person on my behalf, any deed, account, book of 
 account, voucher, receipt, letter, memorandum, paper, or writing, or 
 any copy of or extract from any such document, or any other docu- 
 ment whatsoever, relating to^Jhe matters in question in this suit, or 
 any of them, or wherein any entry has been made relative to such 
 matters, or any of them, other than and except the documents set 
 forth in the said first and second schedules hereto. 
 
 Form 10. 
 Form of Notict to product Documents. 
 
 In the High Court of Justice. 
 Q. B. Division. 
 
 A. B. v. 0. IK 
 Take notice that the [jplaintiff <</• defendant] requires you to pro- 
 duce for his insfiection the following documents referred to in your 
 [statement of claim, or defence, or affidavit, dated the day of 
 
 A.D. ]. 
 
 Describe documents required. 
 X. V., 
 
 Solicitor to the 
 To Z., 
 
 Si ilicitor for
 
 FIRST SCHEDULE. APPENDIX (b). 331 
 
 Form 11. Form ^ 
 
 Form of Notice to inspect Documents. 
 
 In the High Court of Justice. 
 Q. B. Division. 
 
 A. B. v. C. D. 
 
 Take notice that you can inspect the documents mentioned in 
 
 .your notice of the day of a.d. [except the deed 
 
 nn inhered in that notice] at my office on .Thursday next, the 
 
 instant, between the hours of 12 and 4 o'clock. 
 
 Or, that the [plaintiff or defendant] objects to give you inspection 
 
 of the documents mentioned in your notice of the day of 
 
 a.d. , on the ground that [state the ground] : — - 
 
 Form 12. 
 Form of Notice to admit Documents. 
 
 In the High Court of Justice. 
 Division. 
 
 A. B. v. C. D. 
 
 Take notice that the plaintiff [or defendant] in this cause pro- 
 poses to adduce in evidence the several documents hereunder 
 specified, and that the same may be inspected by the defendant [or 
 plaintiff], his solicitor or agent, at , on , 
 
 between the hours of ; and the defendant [or 
 
 plaintiff] is hereby required, within forty-eight hours from the last- 
 mentioned hour to admit that such of the said documents as are 
 specified to be originals were respectively written, signed, or 
 executed, as they purport respectively to have been ; that such as 
 are specified as copies are true copies ; and such documents as are 
 stated to have been served, sent, or delivered, were so served, sent, 
 or delivered respectively ; saving all just exceptions to the 
 admissibility of all such documents as evidence in this cause. 
 
 Dated, &c. 
 
 To E. /•'., solicitor [or agent] for defendant [or plaintiff], 
 
 G. J I., solicitor [or agent] for plaintiff [or defendant]. 
 [Here describe the documents, the manner of doing which mag be as 
 folloics: — ] 
 
 Originals. 
 
 I (escription of Documents. 
 
 Deed of covenant between A. B. and C. D. first part, and 
 
 E. F. second part 
 
 Indenture of lease from A. B. to C. /'..... 
 
 Indenture of release between .1. II., ( '. />. first part, &C. . 
 Letter, defendant to plaintiff ...... 
 
 Policy of insurance on goods by ship " rsabella,"on voyage 
 
 from < (porto to I >ondon ...... 
 
 Memorandum of agreement between C. /'., captain of said 
 
 ship, and E. /'*. 
 
 Bill of exchange for ^ioo at three mi ith drawn by A. B. 
 
 on and accepted by C. />., indorsed by E. F. ami (7. //. 
 
 Dates. 
 
 January i, 1848. 
 February, 1, 1848. 
 February 2, 1848. 
 March 1, 1848. 
 
 December 3, 1847. 
 
 January 1, 1848. 
 
 May 7, 1849.
 
 332 
 
 Fornix. 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 Copies. 
 
 Description of Documents. 
 
 Original or Duplicate 
 
 served, sent, or 
 
 I delivered, when, how, 
 
 and by whom. 
 
 Register of baptism of A. B. in 
 
 the parish of A'. 
 Letter — plaintiff to defendant 
 
 Notice to produce papers 
 
 Record of a Judgment of the 
 Court of Queen's Bench in an 
 action, J. S. v. J. N. 
 
 Letters Patent of King Charles II. 
 in the Rolls Chapel . 
 
 January i, 184 
 February 1, i£ 
 
 March 1, 1848 
 
 Trinity Term, 10th 
 Vict. 
 
 January 1, 1680 
 
 Sent by General Post, 
 February 2, 1848. 
 
 Served March 2, 1848, 
 on defendant's attor- 
 ney by E. F., of— 
 
 Form 10. 
 Setting doicn Special Case. 
 
 IS"-. B. X... 
 In the High Court of Justice. 
 Division. 
 
 Between A. B., Plaintiff, 
 and 
 C. D. and others, Defendants. 
 Set down for argument the special case filed in this action 011 the 
 day of , 187 . 
 
 A'. }'., solicitor for 
 
 Form 14. 
 Form of Notice of Trial. 
 In the High Court of Justice. 
 Division. 
 
 A. B. v. C. />. 
 Take notice of trial of this action [or of tlir. issues in t/tis action 
 ordered to h tried] by a judge and jury [or as the case may be] in 
 Middlesex, [or as the case may be] for the day of 
 
 next. 
 
 X. Y., plaintiffs solicitor [or as tin: case may be]. 
 Dated. 
 To Z., defendant's solicitor [or ax the case may be]. 
 
 Fork 15. 
 Form of Certificate of Officer after Trial b>/ a Jury. 
 30th November, 187b'. 1S76. No. 
 
 In the High Court of Justice. 
 Division. 
 
 Between A. B., Plaintiff, 
 and 
 t '. 1)., Defendant. 
 I certify that this action was tried before the Honourable Air 
 Justice and a special jury of the county of 
 
 on the 12th and 13th days of November, 1876. 
 The jury found [state findings].
 
 FIRST SCHEDULE. APPENDIX (o). 
 
 133 
 
 Plaintiff, 
 
 Defendant. 
 , in the county of 
 
 The Judge directed that judgment should be entered for the pi ea dings. 
 plaintiff for I. with costs of summons [or as the case mat/ be]. 
 
 A. B., 
 [Title of Officer.] 
 
 Form lb'. 
 Affidavit of Scripts. 
 In the High Court of Justice. 
 Probate Division. 
 Between A. B. . . , 
 
 and 
 CD. 
 
 l, -l. B; Of 
 
 , party in this cause, make oath and say, that 
 no paper or parchment writing, being or purporting to be, or having 
 the form or effect of a will or codicil or other testamentary disposi- 
 tion of E. F., late of , in the county of 
 deceased, the deceased in this cause, or being or purporting to be 
 instructions for, or the draft of, any will, codicil, or testamentary 
 disposition of the said E. F., has at any time, either before or since 
 his death, come to the hands, possession, or knowledge of me, this 
 deponent, or to the hands, possession, or knowledge of my solicitors 
 in this suit, so far as is known to me, this deponent, save and 
 except the true and original last will and testament of the said 
 deceased now remaining in the principal registry of this Court [or 
 hereunto annexed, or as the case may be], the said will bearing date 
 the day of 18 [or as the 
 ruse may be], also save and except [here add the dates and particu- 
 lars of any other testamentary papers of which the deponent has ami 
 knowledge.] 
 
 (Signed) A. B. 
 
 Sworn at on the day of 18 . 
 
 Before me, 
 
 [Person authorized to administer oaths under the Act.] 
 
 APPENDIX (C.) 
 
 Xo. 1. 
 
 Tn the High Court of Justice. 
 Division. 
 Writ issued 3rd August, 187;" 
 
 185 
 
 B. No. 
 
 Between A. B. 
 E. F. 
 
 ami 
 
 Plaintiff, 
 I lefendant. 
 
 Vccoi ■ i 
 
 STATED. 
 
 State iii i nt of ( 'In i hi. 
 
 1. Between the 1st of January and the 28th of February, 1875, Claim. 
 the plaintiff supplied to the defendant various articles of drapery ; 
 and accounts and invoices of the goods so supplied, and their 
 prices, were from time to time furnished to the defendant, and pay- 
 ments on account were from time to time made by the defendant. 
 
 '_'. On the 28th of February, 1875, a balance remained due to 
 the plaintiff of 751. 9*., and an account was on that day sent by the 
 plaintiff to the defendant showing that balance.
 
 334 
 
 SUPREME COURT OF JUDICATURE ACT, 187-5. 
 
 Pleadings. 3. On the 1st of March following, the plaintiff's collector saw the 
 
 defendant at his house, and asked for payment of the said balance, 
 and the defendant then paid him by cheque 25?. on account of the 
 same. The residue of the said balance, amounting to 50/. 9s., has 
 never been paid. 
 
 The plaintiff claims £ 
 
 The plaintiff proposes that this action should be tried in the 
 county of Northampton. 
 
 Adminis- 
 tration OF 
 Estate. 
 
 Claim. 
 
 Defence. 
 
 No. 2. 
 
 [1870. B. No. 233.] 
 In the High Court of Justice. 
 Chancery Division. 
 [Name of Judge."] 
 
 Writ issued 22nd December, 1876. 
 In the matter of the estate of A. B., deceased. 
 
 Between E. F. Plaintiff. 
 
 and 
 G. II. Defendant. 
 
 Statement of Claim. 
 
 1. A. B., of K., in the county of L., died on the 1st of July, 1875, 
 intestate. The defendant G. II. is the administrator of A. B. 
 
 2. A. B. died entitled to lands in the said county for an estate of 
 fee simple, and also to some other real estate and to personal estate. 
 The defendant has entered possession of the real estate of A. B., and 
 received the rents thereof. The legal estate in such real estate is 
 outstanding in mortgages under mortgages created by the intestate. 
 
 3. A. B. was never married ; he had one brother only, who pre- 
 deceased him without having been married, and two sisters only, 
 both of whom also pre-deceased him, namely .1/. N. and P. Q. The 
 plaintiff is the only child of M. N., and the defendant is the only 
 child of P. Q. 
 
 The plaintiff claims — 
 
 1. To have the real and personal estate of A. B. administered in 
 this Court, and for that purpose to have all proper directions 
 given and accounts taken. 
 
 2. To have a receiver appointed of the rents of his real estate. 
 
 3. Such further or other relief as the nature of the case m.i 
 recpiire. 
 
 [1S76. B. No. 233.] 
 In the High Court of Justice. 
 Chancery Division. 
 [JVame of Judge.] 
 
 In the matter of the estate of A. B., deceased. 
 
 Between E. F. Plaintiff, 
 
 and 
 G. II. ...... Defendant. 
 
 Statement of Defence. 
 
 1. The plaintiff is an illegitimate child of M. N. She was > 
 married. 
 
 2. The intestate was not entitled to any real estate at his death, 
 except a copyhold estate situate in the county of 7.'., and held of tin 
 manor of S. According to the custom of that manor, when the 
 copyholder dies without issue, and without leaving a brothel 
 issue of a deceased brother, the copyhold descends to his elder sister
 
 FIRST SCHEDULE. APPENDIX (c). 335 
 
 and her issue in preference to his younger sister and her issue. P. Q. Pleadings. 
 was older than M. N. 
 
 3. The personal estate of A. B. was not sufficient for the payment 
 of his debts, and has all been applied in payment of his funeral and 
 testamentary expenses, and part of his debts. 
 
 [1876. B. No. 233.] 
 In the High Court of Justice. 
 Chancery Division. 
 [Name of Judge.~\ 
 
 In the matter of the estate of A. B., deceased. 
 
 Between E. F. Plaintiff, 
 
 and 
 G. II. .... Defendant. 
 
 Reply. 
 
 The plaintiff joins issue with the defendant upon his defence. RejJvt 
 
 No. 3. 
 
 [1S76. B. No. 234. | 
 In the High Court of Justice. 
 Chancery Division. 
 [Name of Judge. } 
 
 Writ issued 22nd December, 1876. 
 In the matter of the estate of A. B., deceased. 
 
 Between E. F. Plaintiff, 
 
 and 
 G. II. . . . . . Defendant 
 
 1. A. B., of K., in the county of L,, duly made his last will, dated Clai 
 the 1st day of March, 1873, whereby he appointed the defendant 
 and M. N: (who died in the testator's lifetime) executors thereof, and 
 devised and bequeathed his real and personal estate to and to the 
 use of his executors in trust, to pay the rents and income thereof to 
 the plaintiff for his life ; anil after his decease, and in default of 
 his having a son who should attain 21, or a daughter who should 
 attain that age, or marry, upon trust as to his real estate for tho 
 person who would be the testator's heir-at-law, and as to his 
 personal estate for the persons who would be the testator's next of 
 Inn if he had died intestate at the time of the death of the plaintiff, 
 and such failure of his issue as aforesaid. 
 
 2. The testator died on the 1st day of July, 1873, and his will 
 was proved by the defendant on the 4th of October, 1873. The 
 plaintiff has not been married. 
 
 3. The testator was at his death entitled to real and personal 
 estate ; the defendant entered into the receipt of the rents of the 
 real i tati and ot in the personal estate ; be has sold some part of 
 the real estate. 
 
 The plaintiff claims — 
 
 1. To have the real and personal estate of .1. B. administerecl 
 in this Court, and for that purpose to have all proper direc 
 
 tions given and accounts taken. 
 
 2. Such further or other relief as the nature of the case may 
 I | ore.
 
 -''•°>G SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings. [1876. B. No. 234.] 
 
 In the High Court of Justice. 
 Chancery Division. 
 [Name of Judge."] 
 
 In the matter of the estate of A. B., deceased. 
 
 Between E. F. Plaintiff, 
 
 and 
 G. II. Defendant. 
 
 Statement of Defence. 
 Defence. 1. A. B.'s will contained a charge of debts ; he died insolvent : 
 
 he was entitled at his death to some real estate which the defendant 
 slod, and which produced the net sum of 4300/., and the testator 
 had some personal estate which the defendant got in and which 
 produced the net sum of 1204?. The defendant applied the whole 
 <>f the said sums and the sum of 84/. which the defendant received 
 from rents of the real estate in the payment of the funeral and 
 testamentary expenses and some of the debts of the testator. The 
 defendant made up his accounts and sent a copy thereof to the 
 plaintiff on the 10th of January, 1875, and offered the plaintiff free 
 access to the vouchers to verify such accounts, but he declined ti > 
 avail himself of the defendant's offer. The defendant submits that 
 the plaintiff ought to pay the costs of this action. 
 
 [1876. B. Xo. 234.] 
 [n the High < iourt of Justice. 
 
 Chancery Division. 
 [Name of Judge.] 
 
 In the matter of the estate of A. B., deceased. 
 
 Between E. F. .... Plaintiff, 
 
 and 
 
 G. II. . . . . Defendant. 
 
 Reply. 
 
 Reply The plaintiff joins issue with the defendant upon his defence. 
 
 No. 4. 
 
 [1876. B. Xo. 235.] 
 In the High Court of Justice. 
 Chancery Division. 
 [Nairn of Jduge.] 
 
 In the matter of the estate of II*. II.. deceased. 
 
 Writ issued 22nd December, 187^. 
 
 Between A. B. and C. his wife . . . Plaintiffs, 
 
 and 
 
 E. F. and G. II. . . . Defendants. 
 
 Statement of Claim. 
 
 Claim 1. W. H., of H., in the county of L., duly made his last will dated 
 
 the 19th day of March, 1861, whereby he appointed the defendants 
 the executors thereof, and bequeathed to them all his personal estate 
 in trust, to call in, sell, and convert the same into money, and there- 
 out to pay his debts and funeral and testamentary expenses, and to 
 divide the ultimate surplus into three shares, and to pay one of such 
 three shares to each of his two children, T. H., and E., the wife of 
 E. \V., and to stand possessed of the remaining third share upon trust 
 for tlie children of the testator's son, J. H., in equal shares to be divided 
 among them when the youngest i if such children should attain the
 
 FI11ST SCHEDULE. APPENDIX (c). 337 
 
 age of 21 years. And the testator devised his real estates to the Pleadings. 
 
 defendants upon trust until the youngest child of the said J. H. should 
 
 attain the age of 21 years, to pay one third part of the rents thereof to 
 
 the said T. H., and one other third part thereof to the said E. W., and 
 
 to accumulate the remaining third part by way of compound interest, 
 
 and so soon as the youngest child of the said J. H. should attain the 
 
 age of 21 years, to sell the said real estates, and out of the proceeds 
 
 of such sale to pay the sum of 1000?. to the said T. H., and to invest 
 
 one moiety of the residue in manner therein mentioned, and stand 
 
 possessed thereof in trust to pay the income thereof to the said E., 
 
 the wife of the said E. W., during her life for her separate use, and 
 
 after her death for her children, the interests of such children being 
 
 contingent on their attaining the age of 21 years, and to divide the 
 
 other moiety of such proceeds of sale and the accumulations of the 
 
 third .diare of rents therein-before directed to be accumulated among 
 
 such of the children of the said J. H. as should be then living, and 
 
 the issue of such of them as should be then dead, in equal shares per 
 
 stirpes. 
 
 2. The testator died on the 25th day of April 1873, and his said 
 will was proved by the defendants in the month of June IS 73. 
 
 3. The testator died possessed of one third share in a leasehold 
 colliery called the Paradise colliery, and in the engines, machinery, 
 stock in trade, book debts, and effects belonging thereto. He was 
 also entitled to real estate, and other personal estate. 
 
 4. The testator left T. H. and E., the wife of E. W., him sur- 
 viving. J. H. had died in the testator's lifetime, leaving four children, 
 and no more. The plaintiff C. B. is the youngest of the children of 
 J. H., and attained the age of 21 years on the 1st of June 1871. The 
 other three children of J. H. died without issue in the lifetime of the 
 testator. 
 
 5. E. W. has several children, but no child has attained the age 
 of 21 years. 
 
 6. T. H. is the testator's heir-at-law. 
 
 7. The defendants have not called in, sold, and converted into 
 money the whole of the testator's personal estate, but have allowed 
 a considerable part thereof to remain outstanding ; and in particular 
 the defendants have not called in, sold, or converted into money the 
 testator's interest in the said colliery, but have, from the death of 
 the testator to the present time, continued to work the same in 
 partnership with the other persons interested therein. The estate of 
 tin- testator has sustained considerable loss by reason of such interest 
 not having been called in, sold, or converted into money. 
 
 8. The defendants did not upon the death of the' testator sell the 
 testator's furniture, plate, linen, and china, but allowed the testator's 
 widow to possess herself of a great part thereof, without accounting 
 for the- same, and the same has thereby been lost to the testator's 
 -.•state. 
 
 :•. The defendants have not invested the share of tin- testator's 
 
 esiduary personal < state given by his will to the children of the 
 
 testator's son .1. II., and have not, accumulated one third of the rents 
 
 and profits of his real estate as directed by the said will, but have 
 
 ed thi ame share and rents with their own moneys, and em- 
 ployed them in business on their own account. 
 
 Q
 
 338 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings. 10. The defendants have sold part of the real estates of the testator 
 
 but a considerable part thereof remains unsold. 
 
 11. A receiver ought to be appointed of the outstanding personal 
 estate of the testator, and the rents and profits of the real estate 
 remaining unsold : 
 
 The plaintiffs claim : — 
 
 1. That the estate of the said testator may be administered, and 
 
 the trusts of his will carried into execution under the direction 
 of the Court. 
 
 2. That it may be declared that the defendants, by carrying on 
 
 the business of the said colliery instead of realizing the same, 
 have committed a breach of trust, and that the parties inte- 
 rested in the testator's estate are entitled to the value of the 
 testator's interest in the said partnership property as it stood 
 at the testator's death, with interest thereon, or at their 
 election to the profits which have been made by the defen- 
 dants in respect thereof since the testator's death, whichever 
 shall be found most for their benefit. 
 
 3. That an account may be taken of the interest of the testator in 
 
 the said colliery, and in the machinery, book debts, stock, and 
 effects belonging thereto, according to the value thereof at 
 the testator's death, and an account of all sums of money 
 received by or by the order, or for the use of the defendants, 
 or either of them, on account of the testator's interest in the 
 said colliery, and that the defendants may be ordered to 
 make good to the estate of the testator the loss arising from 
 their not having realized the interest of the testator in th< 
 said colliery within a reasonable time after his decease. 
 
 4. That an account may be taken of all other personal estati of 
 
 the testator come to the hands of the defendants, or either of 
 them, or to the hands < if any i >ther person by their or either 
 of their order, or for then - or either of their use, or which, but 
 for their wilful neglect or default, might have been so received : 
 and an account of the rents and profits of the testator's real 
 estate, and the moneys arising from the sale thereof, po- - 
 or received by or by the order, or for the use of the defen- 
 dants, or either of them. 
 
 5. That the real estate of the testator remaining unsold may be sold 
 
 under the direction of the Court. 
 
 6. That the defendants may be decreed, at the election of the 
 
 parties interested in the testator's estate, either to pay interes 
 at the rate of 51. per cent, per annum upon such moneys b 
 longing to the estate of the testati >r as they have improperly 
 mixed with their own moneys and employed in business on 
 their own account, and that half -yearly rests may be mad< 
 in taking such account as respects all moneys which by the 
 said will were directed to be accumulated, or to account for 
 all profits by the employment in their business of the said 
 trust money. 
 
 7. That a receiver may be appointed of the outstanding pers 
 
 estate of the testator, and to receive the rent;-, and profits of 
 his real estate remaining unsold. 
 
 8. Such further or other relief as the nature of the case may 
 
 require.
 
 FIRST SCHEDULE.— APPENDIX (c). 339 
 
 [1876. B. 235.] Pleadings. 
 In the High Court of Justice. 
 Chancery Division. 
 [Name of Judge.'] 
 
 Between A. B. and C. his wife . . Plaintiffs, 
 
 and 
 E. F. and G. II. ... Defendants. 
 
 Statement of Defence of the above-named Defendants. 
 
 1. Shortly after the decease of the testator, the defendants, as his Defence, 
 executors, possessed themselves of and converted into money the 
 testator's personal estate, except his share in the colliery mentioned 
 
 in the plaintiff's statement of claim. The moneys so arising were 
 applied in payment of part of the testator's debts and funeral and 
 testamentary expenses, but such moneys were not sufficient for the 
 payment thereof in full. 
 
 2. The Paradise Colliery was, at the testator's decease, worked by 
 him in partnership with J. Y., and W. Y., and T. Y., both since 
 deceased. No written articles of partnership had been entered into, 
 and for many years the testator had not taken any part in the 
 management of the said colliery, but it was managed exclusively 
 by the other partners, and the defendants did not know with 
 certainty to what share therein the testator was entitled. 
 
 3. Upon the death of the testator, the defendants endeavoured 
 to ascertain the value of the testator's share in the colliery, but the 
 < ither partners refused to give them any information. The defendants 
 thereupon had the books of the colliery examined by a competent 
 accountant, but they had been so carelessly kept that it was im- 
 possible to obtain from them any accurate information respecting 
 the state of the concern ; it was, however, ascertained that a 
 considerable sum was due to the testator's estate. 
 
 4. Between the death of the testator and the beginning of the 
 year 1874, the defendants made frequent applications to J. Y., 
 W. Y., and T. Y., for a settlement of the accounts of the colliery. 
 Such applications having proved fruitless, the defendants in January 
 1874, filed their bill of complaint in the Court of Chancery against 
 J. Y., W. Y., and T. Y., praying for an account of the partnership 
 dealings between the testator and the defendants thereto, and that 
 the partnership might be wound up under the direction of the 
 Court. 
 
 5. The said T. Y. died in the year 1874, and the suit was revived 
 against J. P. and T. S., his executors. The suit is still pending. 
 
 G. As to the Paradise Colliery, the defendants have acted to the 
 best of their judgment for the benefit of the testator's estate, and 
 they deny being under any liability in respect of the said colliery 
 not having been realized. They submit to act under the direction 
 ■ if tin- Court as to the further prosecution of the said suit, ami 
 generally as to the realization of the testator's interest in the said 
 colliery. 
 
 7. With respect to the statements in the eighth paragraph of the 
 statemenl of claim, the defendants say, that upon tin- death of the 
 testator, they sold the whole of Ins furniture, linen, and china, and 
 also all his plate, except a few silver teaspoons of very small value, 
 which \\> re taken possession of by his widow, and they applied the 
 proceeds of such sale as part of the testator's personal estate, and 
 they den, being under any liability in respect of such furniture, 
 linen, china, and plate.
 
 340 SUPREME COURT OP JUDICATURE ACT, 1875. 
 
 Pleadings §. With respect to the statements in paragraph seven of the statement 
 
 of claim, the defendants say that all moneys received by them, or either 
 of them, on account of the testator's estate, were paid by them to 
 their executorship account at the bank of Messrs. H. & Co., and 
 until the sale of the testator's real estate took place as hereinafter 
 mentioned, the balance to their credit was never greater than was 
 necessary for the administration of the trusts of the testator's will, 
 and they therefore were unable to make any such investment or 
 accumulation as directed by the testator's will. No moneys be- 
 longing to the testator's estate have ever been mixed with the 
 moneys of the defendants, or either of them, nor has any money of 
 the testator's been employed in business since the testator's decease, 
 except that his share in the said colliery, for the reason herein-before 
 appearing, has not been got in. 
 
 9. In 1874, after the plaintiff C. B. had attained her age of 21 
 years, the defendants sold the real estate of the testator for sums 
 amounting to 15,080/., and no part thereof remains unsold. They 
 received the purchase moneys in December 1874, and on the 
 day of , 1875, they paid such 
 
 proceeds into Court to the credit of this action, with the exception 
 of 500/. retained on account of costs incurred and to be incurred 
 by them. 
 
 In the High ( '<>urt of Justice. [1876. B. No. 235.] 
 
 Chancery Division. 
 [Name of Judt/c.~\ 
 Between A. B. and C. his wife . . Plaintiffs, 
 and 
 E. F. and G. II. Defendants. 
 
 Reply f 
 
 The plaintiff joins issue with the defendants upon their defence. 
 
 No. 5. 
 
 agent. In the High Court of Justice, 187 . B. No. 
 
 Division. 
 
 Writ issued 3rd August 1S75. 
 Between A. B. and Company . . . Plaintiffs, 
 and 
 E. F. and Company . . . Defendants. 
 
 Statement of Claim. 
 Claim. 1. The plaintiffs are manufacturers of artificial manures, carrying 
 
 on business at , in the county of 
 
 2. The defendants are commission agents, carrying on business in 
 London. 
 
 3. In the early part of the year , the plaintiffs com- 
 menced, and down to the 187 , continued to consign 
 to the defendants, as then- agents, large quantities of their manures 
 for sale, and the defendants sold the same, and received the price 
 thereof and accounted to the plaintiffs theref< ir. 
 
 4. Xi i ex j ness agreement has ever been entered into between the 
 plaintiffs and the defendants with respect to the terms of the 
 defendants' employment as agents. The defendants have always 
 charged the plaintiffs a commission at per cent, on all sales 
 effected by them, which is the rate of commission ordinarily charged
 
 FIRST SCHEDULE. — APPENDIX (c). 341 
 
 by del credere agents in the said trade. And the defendants, in fact, Pleadings, 
 always accounted to the plaintiffs for the price, whether they received 
 the same from the purchasers or not. 
 
 5. The plaintiffs contend that the defendants are liable to them 
 as del credere agents, but if not so liable are under the circum- 
 stances hereinafter mentioned liable as ordinary agents. 
 
 6. On the , the plaintiffs consigned to the defen- 
 dants for sale a large quantity of goods, including 
 
 tons of 
 
 7. On or about the , the defendants sold 
 tons of part of such goods to one G. II. for 
 
 L, at three months credit, and delivered the same to him. 
 
 8. G II. was not, at that time, in good credit, and was in insolvent 
 circumstances, and the defendants might, by ordinary care and 
 diligence, have ascertained the fact. 
 
 9. G. II. did not pay for the said goods, but before the expiration 
 of the said three months for which credit had been given was 
 adjudicated a bankrupt, and the plaintiffs have never received the 
 said sum of I., or any part thereof. 
 
 The plaintiffs claim : — 
 
 1. Damages to the amount of /. 
 
 '2. Such further or other relief as the nature of the case may 
 
 require. 
 The plaintiffs propose that this action should be tried in the 
 county of 
 
 [Title as in claim, omitting date of issue of writ.] 
 
 Statement of Defence. 
 
 1. The defendants deny that the said commission of j:>er cent. Defence, 
 mentioned in paragraph 4 of the claim is the rate of commission 
 ordinarily charged by del credere agents in the said trade, and say 
 
 that the same is the ordinary commission for agents other than del 
 credere agents, and they deny that they ever accounted to the 
 plaintiffs for the price of any goods, except after they had received 
 th«- same from the purchasers. 
 
 2. The defendants deny that they were ever liable to the plaintiffs 
 as del credere agents. 
 
 3. With respect to the eighth paragraph of the plaintiffs' statement 
 of claim, the defendants say that at the time of the said sale to the 
 said <•'. //., tin: said G. If. was a person in good credit. If it be true 
 that the said G. II. was then in insolvent circumstances (which the 
 defendants do not admit), the defendants did not and had no reason 
 to suspect the same, and could not by ordinary care or diligence have 
 :i scertained the fact. 
 
 [Title as in defence. | 
 Reply. 
 Tin- plaintiffs join issue upon the defendants' statement of defence. Reply 
 
 No. 6. 
 
 137 . P.. No. 
 Tn the High Court of Justice. 
 Division. 
 
 Writ issued 3rd August 187(>. 
 Between A. B. and C. I). . . . Plaintiffs, 
 
 and 
 E. F. and G. II. .... Defendants. 
 
 Bill of 
 
 Exchange.
 
 342 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings. 
 
 Claim. 
 
 Defence. 
 
 Reply. 
 
 Statement of Claim, 
 
 1. Messrs. M. N. & Co., on the day of 
 
 drew a bill of exchange upon the defendants for I. payable to 
 
 the order of the said Messrs. M. X. <£ Co. three months after date, 
 and the defendants accepted the same. 
 
 2. Messrs. M. X. dj Co. indorsed the bill to the plaintiffs. 
 
 3. The bill became due on the , and the defendant 
 has not paid it. 
 
 The plaintiffs claim :— 
 
 [Title.] 
 
 Statement of Defence. 
 
 1. The bill of exchange mentioned in the statement of claim was 
 drawn and accepted under the circumstances hereinafter stated, and 
 except as hereinafter mentioned there never was any a osideration 
 for the acceptance or payment thereof by the defendants. 
 
 2. Shortly before the acceptance of the said bill it was agreed 
 between the said Messrs. M. X. <L- ( 'o., the drawers thereof, and the 
 defendants, that the said Messrs. M. X. <£■ Co. should sell and 
 deliver to the defendants free on board ship at the port of 
 
 1200 tons of coals during the month of , 
 
 and that the defendants should pay for the same by accepting the 
 said Messrs. M. X. d- Co.'s draft for /. at six 
 
 months. 
 
 3. The said Messrs. .V. .V. & Co. accordingly drew upon the de- 
 fendants, and the defendants accepted the bill of exchange now sued 
 upon. 
 
 4. The defendants did all things which were necessary to entitle 
 them to delivery by the said Messrs. M. X. <t' Co. of the said 1200 
 tons of coals under their said contract, and the time for delivery has 
 long since elapsed; but the said Messrs. M. X. & Co. never delivered 
 the same, or any part thereof, but have always refused to do so, 
 whereby the consideration for the defendants' acceptance has 
 wholly failed. 
 
 5. The plaintiffs first received the said bill, and it was first 
 indorsed to them after it was overdue. 
 
 6. The plaintiffs never gave anv value or consideration for the said 
 bill. 
 
 7. The plaintiffs took the said bill with notice of the facts stated 
 in the second, third, and fourth paragraphs hereof. 
 
 [Title.] 
 Reply. 
 
 1. The plaintiff joins issue upon the defendants' statement of 
 defence. 
 
 2. The plaintiff gave value and consideration for the said bill in 
 manner following, that is to say, on the day of 
 187 , the said Messrs. M. X. & Co. were indebted to the plaintiff 
 in about L, the balance of an account for goods sold from 
 time to time by him to them. On that day they ordered of the 
 plaintiff further goods to the value of above I., which 
 last mentioned goods have since been delivered by him to them. 
 And at the time of the'order for such last mentioned goods it wTis 
 agreed between Messrs. M. X. <fc Co. and the plaintiff, and the order
 
 FIRST SCHEDULE. APPENDIX (c). 343 
 
 was received upon the terms, that they should indorse and hand Pleadings' 
 over to him the bill of exchange sued upon, together with various 
 other securities on account of the said previous balance, and the 
 price of the goods so ordered on that day. The said securities, 
 including the bill sued upon, were thereupon on the same day 
 indorsed and handed over to the plaintiff. 
 
 No. 7. 
 
 137 . B. No. 
 In the High Court of Justice, f^Zcz 
 
 Division. AND con- 
 
 Writ issued 3rd August 1876. sideration. 
 
 Between A. B. and C. D. Plaintiffs, 
 
 and 
 E. F. and G. II. Defendants. 
 
 Statement of Claim. 
 1. The plaintiffs are merchants, factors, and commission Claim, 
 
 agents, carrying on business in London. 
 
 '2. The defendants are merchants and commission agents, carrying 
 on business at Hong Kong. 
 
 3. For several years prior to the 1875, the plaintiffs 
 
 had been in the habit of consigning goods to the defendants for sale, as 
 their agents, and the defendants had been in the habit of consigning 
 goods to the plaintiffs for sale, as their agents ; and each party 
 always received the price of the goods sold by him for the other ; 
 and a balance was from time to time strack between the parties, and 
 paid. 
 
 On the of , the moneys so received by 
 
 the defendants for the plaintiffs, and remaining in their names, 
 largely exceeded the moneys received by the plaintiffs for the defen- 
 dants, and a balance of /. was accordingly due to the 
 plaintiffs from the defendants. 
 
 1. On or about the 1875, the plaintiffs sent to the 
 
 defendants a statement of the accounts between them, showing the 
 said sum as the balance due to the plaintiffs from the defendants 
 and the defendants agreed to the said statement of accounts as 
 correct, and to the said sum of I. as the balance due by 
 
 them to the plaintiffs, and agreed to pay interest on such balance if 
 time were given to them. 
 
 5. The defendants requested the plaintiffs to give them three 
 months time for payment of the said sum of /., and the 
 
 plaintiffs agreed to do so upon the defendants accepting the bills of 
 exchange hereinafter mentioned. 
 
 <;. The plaintiffs thereupon on the 
 drew two bills of exchange upon the defendants, one for I. 
 
 and the other for I,, both payable to the order of the 
 
 plaintiffs three months after date, and the defendants accepted the 
 bills. 
 
 The said bills became due on the 1 87 , and 
 
 the defendants have not paid the bills, or either of them, nor the said 
 sum of /. 
 
 The plaintiffs claim : 
 
 I. and interest to the date of judgment. 
 
 The plaintiffs propose that the action should be' tried in London.
 
 34-i 
 
 Pleadings. 
 
 Claim. 
 
 SUPREME COURT OF JUDICATURE ACT, 1B75. 
 Xo. 8. 
 
 In the High Court of Justice. 
 Division. 
 
 187 . B. No. 
 
 Writ issued [ ]. 
 
 [THE "IDA."]* 
 
 Between A. B. and C. I>. 
 
 and 
 
 E. /•'. and G. II. 
 
 Plaintiffs 
 Defendants. 
 
 Statement of Claim. 
 
 [1. The " Ida " is a vessel of which no owner or part owner was, 
 at the time of the institution of this cause, domiciled in England or 
 Wales.Jf 
 
 2. In the month of February 1873, Messrs. L. and Company, of 
 Alexandria, caused to be shipped 6110 ardebs of cotton seed on 
 board the said vessel, then lying in Port Said (Egypt), and the then 
 master of the vessel received the same, to be carried from Port 
 Said to Hull, upon the terms of three bills of lading, signed by the 
 master, and delivered to Messrs. L. and Company. 
 
 3. The three bills of lading, being in form exactly similar to one 
 another, were and are, so far as is material to the present case, in 
 the won Is, letters, and figures following, that is to say : — 
 
 " Shipped in good order and well conditioned by L. & < !o., Alex- 
 dria (Egypt) in and upon the good ship called the 'Ida,' 
 whereof is master for the present voyage Ambrozio Chiapella, 
 and now riding at anchor in the port of Port Said (Egypt) 
 and bound for Hull, 6110 ardebs of cotton seed being marked 
 and numbered as in the margin, and are to be delivered in 
 the like good order and well-conditioned at the aforesaid port 
 of Hull (the act of God, the Queen's enemies, fire, and all 
 and every other dangers and accidents of the seas, rivers, and 
 navigation of whatever nature and kind soever, save risk of 
 boats so far as ships are liable thereto, excepted), unto order or 
 to assigns paying freight for the said goods at the rate of 
 (19s.) say 19.s-. sterling in full per ton of 20 cwt. delivered 
 with 10/. gratuity. Other conditions as per charter-part}, 
 dated London, 4th October, 1872, with primage and average 
 accustomed. In witness whereof the master or purser of the 
 said ship hath affirmed to three bills of lading all of thi- 
 tenor and date, the one of which three bills being accom- 
 plished the other two to stand void. Dated in Port Said 
 (Egypt) 6th February 1873. 100 dunnage mats. Fifteen 
 working days remain for discharging." 
 
 4. The persons constituting the firm of Messrs. L. and Company 
 are identical with the members of the plaintiffs' firm. 
 
 '>■ The vessel sailed on her voyage to Hull, and duly arrived 
 there on or about the 7th day of May 1873. 
 
 6. The cotton seed was delivered to the plaintiffs but not in as 
 good order and condition as it was in when shipped at Port Said ; 
 but was delivered to the plaintiffs greatly damaged. 
 
 * In Admiralty action insert name of ship. 
 
 t A statement to this effect may be inserted if the action be under sect. 6 of 
 Admiralty Act, 1861.
 
 FIRST SCHEDULE. APPENDIX (c). 345 
 
 7. The deterioration of the cotton seed was not occasioned by any Pleadings, 
 of the perils or causes in the bills of lading excepted. 
 
 8. By reason of the premises the plaintiffs lost a great part of 
 the value of the said cotton seed, and were put to great expense in 
 and about keeping, warehousing, and improving the condition of the 
 said cotton seed, and in and about having the same surveyed. 
 
 The plaintiffs claim the following relief : — 
 
 1. /. for damages, [*and the condemnation of the 
 said vessel and the defendant and his bail in the same] ; 
 
 2. Such further relief as the nature of the case requires. 
 
 [Title.] 
 
 Defence. Defence. 
 
 Statement of : — 
 
 1. They deny the truth of the allegations contained in the sixth, 
 seventh, and eighth articles of the said petition. 
 
 2. The deterioration, if any, to the cotton seed was occasioned by 
 the character and quality of the cotton seed when shipped on board 
 the "Ida," and by the inherent qualities of the cotton seed, and by 
 shipping water in a severe storm which occurred on the 
 
 day of in latitude during the voyage, or 
 
 by some or one of such causes. 
 
 [Title.] 
 Reply. 
 The plaintiffs join issue upon the statement of defence. 
 
 No. "< Bottom K'V. 
 
 In the High Court of Justice. 
 Admiralty Division. 
 
 Writ issued [ ]. 
 
 THE "ONWARD." 
 Between A. B. and C. I). ... Plaintiffs. 
 
 and 
 E. F. and G. H. ... Defendants. 
 
 Statement of Claim. 
 
 1. The "Onward," a ship of 933 tons register, or thereabouts, Claim, 
 belonging to the United States of America, whilst on a voyage from 
 Moulmein to Queenstown or Falmouth, for orders, and from thence 
 
 to a port of discharge in the United Kingdom or on the Continent, 
 between Bordeaux and Hamburg, both ports inclusive, laden with 
 a cargo of teak timber, was compelled to put into Port Louis, in the 
 island of Mauritius, in order to repair and refit. 
 
 2. The master of the "Onward," being without funds or credit at 
 Port Louis, and being unable to pay the expense of the saidrepairs, 
 and the necessary disbursements of the said ship at Fort Louis, so 
 as to enable the said ship to resume and prosecute her voyage, and 
 after having communicated with his owners, and with the owners 
 and consignees of the cargo, was compelled to resort to a loan of 
 24,369 dollars on bottomry of the said ship, her cargo and freight, 
 
 * This may be inserted if the action be an Admiralty action ill rem. 
 
 Q 5
 
 346 
 
 SUPREME COURT OF JUDICATURE ACT, 1ST-"). 
 
 Pleadings 
 
 Defence. 
 
 for the purpose of enabling him to pay the said expenses and dis- 
 bursements, which sum Messrs. H. and Company, of Port Louis, at 
 the request of the master by public advertisement, advanced to the 
 said master at and after the rate of 128 dollars for every 100 
 dollars advanced, and accordingly the said master, by a bond of 
 bottomry, dated the 13th of October 1870, by him duly executed 
 in consideration of the sum of 24,369 dollars, Mauritius currency, 
 paid to him by the said Messrs. H. and Company, bound himself and 
 the said ship and her cargo, namely, about 940 tons of teak timber, 
 and her freight, to pay unto Messrs. H. and Company, their 
 assigns, or order or indorsees, the said sum of 24,369 dollars with the 
 aforesaid maritime premium thereon, within twenty days next after 
 the arrival of the " Onward " at her port of discharge, from the 
 said intended voyage, the said payment to be made both in capital 
 and interest in British sterling money, at and after the rate of 4s. 
 for every dollar with a condition, that in case the said ship and 
 cargo should be lost, during her voyage from Port Louis to Queens- 
 town or Falmouth, for orders, and thence to her port of discharge 
 in the United Kingdom or on the Continent between Bordeaux 
 and Hamburg, both ports inclusive, then, that the said sum of 
 24,369 dollars, and maritime premium thereon, should not be 
 recoverable. 
 
 3. The "Onward " subsequently proceeded on her voyage, and on 
 the 7th of February, 1871, arrived with her cargo on board at the 
 port of Liverpool, which was her port of discharge. 
 
 4. The bond was duly endorsed and assigned to the plaintiffs. 
 
 5. The ship has been sold by order of the Court, and the proceeds 
 of the sale thereof have been brought into Court, and the freight 
 has also been paid into Court. 
 
 6. The said sum of 24,369 dollars with the maritime premium 
 thereon, still remain due to the plaintiffs. By a decree made on the 
 10th of May, 1871, the Court pronounced for the validity of the 
 bond, so far as regarded the ship and freight, and condemned the 
 proceeds of the ship and freight in the amount due on the bond. 
 The principal and premium still remain owing to the plaintiffs, and 
 the proceeds of the said ship and freight available for payment 
 thereof are insufficient for such payment. 
 
 The plaintiffs claim : — 
 
 1. That the Court pronounce for the validity of the bond so far 
 
 as regards the cargo. 
 
 2. That the Court condemn the defendants and their bail in so 
 
 much of the amount due to the plaintiffs on the bond, for 
 principal maritime premium, and for interest, from the time 
 when such principal and premium ought to have been paid 
 as the proceeds of the ship and freight available for payment 
 of the bond shall be insufficient to satisfy, and in costs. 
 
 3. Such further relief as the nature of the case requires. 
 
 [Title.] 
 
 Defence. 
 
 The defendants say that the — 
 
 1. Several averments in the second article of the statement con- 
 tained are respectively untrue, except the averment that the bottomry 
 bond therein mentioned was given and executed.
 
 FIRST .SCHEDULE. APPENDIX (c). 347 
 
 3. The " Onward" proceeded on the voyage in the first paragraph Pleadings. 
 of the claim mentioned, under a charter party made between the 
 defendants and the owners of the vessel, who resided at New York. 
 
 And the cargo in the said paragraph mentioned belonged to the 
 defendants, and was shipped at Moulmein, by Messrs. T. F. and 
 Company, of Moulmein, consigned to the defendants. 
 
 4. "When the " Onward " put into Port Louis, the master placed 
 his ship in the hands of Messrs. H. & Company, the persons in 
 the second paragraph of the claim mentioned, and the repairs and 
 disbursements in the said second article mentioned were made, 
 directed, and expended under the orders, management, and on the 
 credit of said Messrs. H. and Company, who at the outset con- 
 templated the necessity of securing themselves by the hypotheca- 
 tion of the ship, freight, and cargo. 
 
 '>. The master of the " Onward " and Messrs. H. and Com- 
 pany did not communicate to the said shippers of the cargo, or to 
 the defendants who carried on business at Glasgow, as the master 
 knew the intention of hypothecating the ship, freight, and cargo, or 
 the circumstances which might render such hypothecation advisable 
 or necessary, but, on the contrary, without reasonable cause or 
 excuse, abstained from so doing, although the comparatively small 
 value of the ship and freight to be earned, rendered it all the more 
 important that such communication should have been made. 
 
 6. A reasonable and proper time was not allowed to elapse 
 between the advertisements for the bottomry loan and the accept- 
 ance of Messrs. H. and Company's offer to take such loan, 
 
 [Title.] 
 
 Reply. 
 
 1. The plaintiffs say that the defendants, since the 31st day of Reply. 
 December 1868, have been the only persons forming the firm of 
 T. P. and Co., of Moulmein, mentioned in the third jDaragraph of 
 the defence. 
 
 ■1. After the master of the "Onward" put into Port Louis as 
 aforesaid, he employed Messrs. H. and Company, in the claim 
 mentioned, ;is his agents, and by his directions they by letter com- 
 municated to the defendants' firms at Moulmein and Glasgow the 
 circumstances of the ship's distress, and the estimated amount of her 
 repairs. 
 
 3. The said Messrs. H. and Company shortly after the said ship 
 was put into their hands at Port Louis, offered the said master, in 
 case he should recpiire them to do so, to make the necessary ad- 
 vances for the ship's repairs, and to take his draft at 90 days sight 
 on Messrs. B. Brothers, of London, at the rate of 5 per cent, discount 
 for the amount of the advances, together with a bottomry bond on 
 ship, cargo, and freight as collateral security, the bond to be void 
 should tin- draft lie accepted. The said master, and the said 
 Mi •--!■-. II. and. Company by letter, communicated to the owners 
 (jf the "(inward'' the circumstances of the said ship's distress, and 
 the aforesaid offer of the said Messrs. H. and Company, and the said 
 master by his letter requested the said owners to give him their 
 directions on the subject. The said owners shortly after receiving 
 such letters, by letter communicated with the defendants at Glasgow, 
 and forwarded to them CO] ies of the said lastly-mentioned letters of 
 the said master, and of the said Messrs. H. and Co.
 
 348 
 
 SUPREME COURT OF JUDICATURE ACT, 187."). 
 
 Pleading.--. 4. The defendants' houses at Moulmein and Glasgow respectively 
 
 received the letters referred to in the second paragraph of this reply 
 in time to have communicated with the said master at Port Louis 
 1 ief( >re the giving of the said bottomry bond. 
 
 5. The defendants received the said copies of letters referred to in 
 paragraph 4 of this reply, in time for them to have communicated 
 thereon with the said master at Port Louis before the giving of the 
 said bond. 
 
 6. The defendants did not at any time answer the said communi- 
 cations of the said Messrs. H. and Company, or in any way com- 
 municate, or attempt to communicate, with the said master, or to 
 direct him not to give, or prevent him from giving the said bottomry 
 bond on the said cargo. 
 
 7. The said bond was duly advertised for sale, and was subse- 
 quently, and after a proper interval had elapsed, sold by auction in 
 the usual way. There were several bidders at the sale, and the said 
 Messrs. H. and Company were the lowest bidders in premium, and 
 the said bond was knocked down to them. The said bond was not 
 advertised for until the said ship was ready for sea, and up to that 
 time the master of the said ship had expected to hear from her 
 owners, and had hoped to be put in funds, and had not finally deter- 
 mined to resort to bottomry of the said ship, or her cargo, or freight. 
 
 8. Save as herein appears the plaintiffs deny the truth of the 
 several allegations contained in the said answer. 
 [Note. — The facts stated in this reply shi >uld, in general, be introduced 
 
 by amendment into the statement of claim.] 
 
 [Title.] 
 Hi joinder. 
 Rejoinder. The defendants' join issue upon the plaintiffs' Reply. 
 
 )an>*i6 
 
 No. 10. 
 Charter 187 . B. No. 
 
 Party. T_ n the High Court of Justice. 
 
 Division. 
 
 Writ issued 3rd August, 1876. 
 
 Between A. B. and V. 1> Plaintiffs, 
 
 and 
 E. F. and 0. If. . . . . Defendant-. 
 
 Statement of Claim. 
 Claim. I. The plaintiffs were, on the 1st August 1874, the owners of the 
 
 steam ship "British Queen." 
 
 2. On the l3t August 1S74, the ship being then in Calcutta, a 
 (.barter party was there entered into between John Smith, the 
 master, on behalf of himself and the owners of the said ship, of the 
 one part, and the defendants of the other part. 
 
 3. By the said charter party it was agreed, amongst other things, 
 that the defendant should be entitled to the whole carrying power 
 of the said steamship for the period of four months certain, com- 
 mencing from the said 1st August 1874, upon a voyage or voyages 
 between Calcutta and Mauritius and back ; that the defendants 
 should pay for such use of the said steamship to the plaintiffs' agents at 
 Calcutta, monthly, the sum of 1000/. ; that the charter should 
 terminate at Calcutta ; and that if at the expiration of the said
 
 FIHST SCHEDULE. APPENDIX (c). 349 
 
 period of four months the said steamship should be upon a voyage, then Pleadings 
 the defendants should pay pro rata for the hire of the ship up to her 
 arrival at Calcutta, and the complete discharge of her cargo there. 
 
 4. The " British Queen " made several voyages in pursuance of the 
 said charter party, and the first three monthly sums of 1000/. each 
 were duly paid. 
 
 5. The period of four months expired on the 1st December 1874, 
 and at that time the steamship was on a voyage from Mauritius to 
 Calcutta. She arrived at Calcutta on the 13th December, and the 
 discharge of her cargo there was completed on the 16th December 
 1874. 
 
 6. The plaintiffs' agents at Calcutta called upon the defendants to 
 pay to them the fourth monthly sum of 1000/., and a sum of 500/. 
 for the hire of the steamship from the 1st to the 10th December 
 1874, but the defendants have not paid any part of the said sums. 
 
 The plaintiffs claim — 
 
 The sum of 1500/. and interest upon 1000/., part thereof, from the 
 
 1st December 1874, until judgment. 
 The plaintiffs propose that this action should be tried in London. 
 
 [Title.] 
 
 Statement of Defence. 
 
 1. By the charter party sued upon it was expressly provided that Defence, 
 if any accident should happen to, or any repairs should become neces- 
 sary to the engines or boilers of, the said steamship, the time occupied 
 
 in repairs should be deducted from the period of the said charter, 
 and a proportionate reduction in the charter money should be made. 
 
 2. On the repairs became necessary to the engines 
 and boilers of the steamship, and ten days were occupied in effecting 
 such repairs. 
 
 8. On the an accident happened to the engines of the 
 
 steamship at Mauritius, and two days were occupied in effecting the 
 repairs necessary in consequence thereof. 
 
 4. The defendants are therefore entitled to a reduction in the 
 
 charter money of 400/. 
 
 By way of set-off and counter-claim the defendants claim as fol- Coiinter- 
 i claim. 
 
 lows : — 
 
 5. By the charter party it was expressly provided that the char- 
 terers should furnish funds for the steamship's necessary disburse- 
 ments, except in the port of Calcutta, without any commission or 
 
 interest on any sum so advanced. 
 
 6. The defendants paid for the necessary disbursements of tin- 
 ship in the port of Mauritius between the and the 
 
 1874, sums amounting in all to 025/. 14*. 6d. 
 
 7. The charter party also contained an express warranty that the 
 steamship was at the date thereof capable of steaming nine knots an 
 hour <m a consumption of 30 tons of coal a day, and it was further 
 provided by the charter party that the charterers should provide coal 
 for tin- use of the said steamship. 
 
 8. 'Hie steamship was at the date of the charter party only capable 
 of steaming less than eight knots to an hour, and that only on a con- 
 sumption of more than 35 tons of coal a- day.
 
 350 
 
 SUPREME COURT OF JUDICATURE ACT, 187-5. 
 
 Pleadings. 9. In consequence of the matters mentioned in the last paragraph, 
 
 the steamship finally arrived at Calcutta at least fifteen days later, 
 and remained under charter at least fifteen days longer than she would 
 otherwise have done. She was also during the whole period of the said 
 charter at sea for a much larger number of days than she would 
 otherwise have been, and consumed a much larger quantity of coal 
 on each of such days than she would otherwise have done, 
 whereby the defendants were obliged to provide for the use of the 
 steamship much larger quantities of coal than they would otherwise 
 have been. 
 
 The defendants claim— 
 
 I. damages in respect of the matters stated in this set- 
 off and counter-claim. 
 
 [Title.] 
 Reply. 
 Reply 1. The plaintiffs join issue upon the second, third, and fourth 
 
 paragraphs of the defendants' statement of defence. 
 
 2. With respect to the alleged set-off stated in paragraph six 
 the plaintiffs do not admit the correctness of the amount therein 
 stated. And all sums advanced by them for disbursements were paid 
 i ir allowed to them by the plaintiffs by deducting the amount thereof 
 from the third monthly sum of 1000^. paid (subject to such deduc- 
 tion) to the plaintiffs' agents at Calcutta by the defendant on or 
 about the 12th November 1S74. 
 
 3. With respect to the alleged breach of warranty and the alleged 
 damages therefrom stated in the seventh, eighth, and ninth para- 
 graphs, the plaintiffs say that the steamship was at the date of the 
 charter party capable of steaming nine knots an hour on a consumption 
 of 30 tons of coal a day. If the steamship did not, during the said 
 charter,steam more than eight knots an hour, and that on a consump- 
 tion of more than 35 tons a day, as alleged (which the plaintiffs do not 
 admit), it was in consequence of the bad and unfit quality of the 
 coals provided by the defendants for the ship's use. 
 
 [Title.] 
 
 Joinder <<f /ssut. 
 
 Rejoinder- The defendants join issue upon the plaintiffs reply to their set-off 
 
 and counter-claim. 
 
 Collision. 
 
 Claim. 
 
 No. 11. 
 
 In the High Court of Justice. 
 Admiralty Division. 
 
 Writ issued [ 
 
 THE "AMERICAN." 
 
 Between A. B. and C. I). . 
 
 and 
 E. F. and G. II. . 
 
 18/ 
 
 B. No. 
 
 Plaintiffs. 
 
 Defendants. 
 
 Statement of Claim. 
 1. Shortly before 8 a.m. on the 9th of December, 1874, thehrigan- 
 tine "Katie," of 194 tons register of which the plaintiffs were owners, 
 manned by a crew of eight hands all told, whilst on a voyage from 
 Dublin to St. John's, Newfoundland, in ballast, was in latitude 
 about 46° N., and longitude 40° 42' W., by account.
 
 FIRST SCHEDULE. — APPENDIX (o). 351 
 
 2. The wind at such time was about W. by S., a strong breeze, Pleadings, 
 and the weather was clear, and the "Katie" was under double — 
 reefed mainsail, reefed mainstaysail, middle staysail, lower topsail, 
 
 reefed fore staysail, and jib, sailing full and by on the port tack, 
 heading about N.W. J N., and proceeding at the rate of about five 
 knots and a half per horn-. 
 
 3. At such time a steamship under steam and sail, which proved 
 to be the screw steamship " American," was seen at the distance of 
 three or four miles from the "Katie," broad on her port bow, and 
 steering about E. or E. by S. The master of the "Katie," not 
 having been able to take observations for several days, and her 
 chronometer having run down, and the said master wishing to ex- 
 change longitudes with the "American," caused an ensign to be 
 hoisted, and marked his longitude by account on a board which he 
 exhibited over the port side. The "Katie" was kept full and by, 
 and the "American" approached rapidly, and attempted to pass 
 ahead of the "Katie," and caused immediate danger of collision, 
 and although thereupon the helm of the " Katie " was put hard 
 a-port and her mainsheet let go, the " American " with her stem 
 struck the " Katie " on her port side, almost amidships, cutting her 
 nearly in two, and the " Katie " sank almost immediately, her crew 
 being saved by the steamer. 
 
 4. The "American" improperly neglected to keep clear of the 
 " Katie." 
 
 5. The " American " improperly attempted to pass ahead of the 
 "Katie." 
 
 6. The " American " improperly neglected to ease her engines, and 
 improperly neglected to stop and reverse her engines in due time. 
 
 The plaintiff claims — 
 
 1. That it may be declared that the plaintiffs are entitled to the 
 damage proceeded for. 
 
 2. That the bail given by the defendants be condemned in 
 such damage, and in costs. 
 
 3. That the accounts and vouchers relating to such damage be 
 referred to the Registrar assisted by merchants to report the 
 amount thereof. 
 
 4. Such further and other relief as the nature of the case may 
 require. 
 
 [Title.] 
 
 Statement of Defence. 
 The defendants say as follows : — Defence. 
 
 1. The " American " is a screw steamship, of 1368 tons register, 
 with engines of 200-horse power nominal, belonging to the port of 
 Liverpool, and at the time of the occurrences hereinafter men- 
 tioned was manned by a crew of forty hands all told, laden with a 
 
 .i i of general merchandise, and bound from Port-au-Prince in 
 the Wi it I in lies to Liverpool. 
 
 2. Ali'iut 8.5 a.m. on the 28th of November 1874, the " American " 
 was in latitude -1G ,J NT., longitude 38° 16' \Y.. steering E. by S. true 
 magnetic, making under all sail and steam about 12 knots an hour, 
 the win. I being about S.W. by S. true magnetic, blowing a strong 
 breeze and the weather hazy, when a vessel, which afterwards 
 proved to be the brigantine "Katie," was observed on the
 
 352 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Fleiulinn 
 
 " American's " starboard bow about four miles distant, bearing 
 about S.E. by E. true magnetic, close-hauled to the wind, and 
 steering a course nearly parallel to that of the " American." 
 
 3. The " American " kept her course, and when the " Katie " was 
 about three miles distant her ensign was observed by those on 
 board the "American" run up to the main, and she was seen to 
 have altered her course, and to be bearing down towards the 
 "American." The "American's" ensign was afterwards runup, 
 and her master, supposing that the " Katie " wanted to correct her 
 longitude, or to speak the " American," continued on his course 
 expecting that the " Katie," when she had got sufficiently close to 
 speak or show her black board over her starboard side, would luff to 
 the wind, and pass to windward of the " American." 
 
 4. The master of the "American" watched the "Katie" as she 
 continued to approach the " American," and when she had 
 approached as near as he deemed it prudent for her to come, he 
 waved to her to luff, and shortly afterwards, on his observing her to 
 be attempting to cross the bows of the " American," the helm of the 
 latter was immediately put to starboard and engines stopped and 
 reversed full speed; but notwithstanding, the "American" with 
 her stem came into collision with the port side of the "Katie," a 
 little forward of the main rigging. 
 
 5. The " American " engines were then stopped, and when the 
 crew of the "Katie" had got on board of the "American,*' the 
 latter 's engines were reversed to get her clear of the "Katie," which 
 sunk under the " American's " bows. 
 
 6. The " Katie " improperly approached too close to the 
 " American." 
 
 7. Those on board the " Katie " improperly neglected to luff, 
 and to pass to windward of the "American." 
 
 8. Those on board the " Kati 
 the bows of the " American." 
 
 improperly attempted to cross 
 ' Katie " improperly ported her helm 
 
 Reply. 
 
 9. Those on board the 
 before the said collision. 
 
 10. Those on board the "Katie" improperly neglected to star- 
 board her helm before the said collision. 
 
 [Title.] 
 Reply. 
 
 The plaintiffs join issue upon the defendants' statement of defence. 
 
 Xo. 12. 
 
 Kni n M, n r i n the High Court of Justice. 
 Admiralty Division. 
 
 Writ issued [ 
 
 1S7 . B. No. 
 ]■ 
 
 THE "TWO ELLENS." 
 
 Between A. B. and C. l>. . . .Plaintiffs, 
 ami 
 B. F. Defendant. 
 
 Statement of (//aim. 
 Claim. 1. The said vessel was and is a British colonial vessel, belonging
 
 FIRST SCHEDULE. — APPENDIX (c). 353 
 
 to the Port of Digby in Nova Scotia, of which no owner or part Pleadings. 
 owner was at the time of this action or is domiciled in England or 
 Wales. 
 
 2. At the time of the commencement of this action the said 
 vessel was under arrest of this Court. 
 
 3. About the month of February 1868, the said vessel was lying 
 in the Port of London, in need of repairs, and of being equipped 
 and supplied with certain other necessaries. 
 
 4. By the order of Messrs. K. L., who were duly authorised, the 
 plaintiffs equipped and repaired the said vessel as she needed, and 
 provided the vessel with necessaries, and there is now due to the 
 plaintiffs for such necessary repairing and equipping, and other 
 necessaries, the sum of 305'. 3*., together with interest thereon from 
 the 19th day of February ISMS. 
 
 The plaintiffs claim— 
 
 1. Judgment for the said sum of 305/. 3s., with such interest 
 
 thereon as aforesaid until judgment. 
 
 2. The condemnation of the ship and the defendant and his bail 
 
 therein and in the costs of this suit. 
 
 3. Such further relief as the nature of the case requires. 
 
 [Title]. 
 Statement of Defence. 
 
 1. By an instrument of mortgage, in the form and recorded as defence. 
 prescribed by the Merchant Shipping Act, 1854, bearing date the 
 
 9th of March 1867, and executed by C. M., blacksmith, D. F., 
 master mariner, and W. H., farmer, all of Weymouth, in the county 
 of Digby, in Nova Scotia, the registered owners of 64-64ths parts or 
 shares in the vessel, the said C. M., D. F., and W. H. mortgaged 
 64-64ths parts in- shares in the vessel, of which the said D. F. was 
 also master, to (I. T., of Nova Scotia, in consideration of the sum 
 of 5oo(» dollars advanced by him to the said owners, and for the 
 purpose of securing the repayment by them to him of the said sum 
 with interest thereon. 
 
 2. By an instrument of transfer, dated the 16th of July 1868, in 
 the form prescribed by the said Act, and executed by G-. T., in con- 
 sideration '>f the sum of 5000 dollars to G-. T.,paid by the defendant, 
 <J. T. transferred to the defendant the mortgage security. 
 
 ::. The said sum of 5000 dollars, with interest thereon, still 
 remains due on tin; said security. 
 
 4. Tin- vessel was not under the arrest of tins Court at the time 
 of the commencement of this action. 
 
 5. Th.: vessel « 1 1 < 1 not need to be equipped or repaired as in the 
 fourth paragraph of the plaintiffs' claim mentioned, and she did not 
 at the time of the supply of the articles referred to in the said 
 fourth paragraph as "necessaries" stand in need of such articles. 
 On the contrary, the said vessel could have gone to sea and proceeded 
 on and prosecuted her voyage without such equipments, repairs, 
 and articles referred to as aforesaid, and such equipments, repairs, 
 and other articles were done and effected and supplied for the 
 purpose of reclassing the said vessel, and not for any other purpose ; 
 and the claim of the plaintiffs is not a claim for necessaries within 
 the meaning of the Admiralty Court Act, 1861, s. 5.
 
 354 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings. (j. The alleged necessaries were not supplied on tb.e credit of the 
 
 said vessel, but upon the personal credit of J. B., •who was the 
 broker for the vessel, and upon the agreement that the plaintiffs 
 were not to have recourse to the vessel. 
 
 7. The defendant did not, nor did G. T., in any way, order, 
 authorise, or become liable for, and neither of them is in any way 
 liable in respect of the said alleged supplies or any part thereof, and 
 the said vessel was at the time of the commencement of this 
 action and she still is of a less value than the amount which, irre- 
 spective of the sums refei-red to in the next article of this answer, is 
 due to the defendant on the said mortgage security. 
 
 8. The defendant, in order to save the vessel from being sold by 
 this Court at the instance of certain of her mariners having liens on 
 the said vessel for their wages, has been compelled to pay the said 
 wages, and he claims, if necessary, to be entitled to stand in the 
 place of such mariners, or to add the amounts so paid by him for 
 wages to the amount secured by the said mortgage, and to have 
 priority in respect thereof over the claim of the plaintiffs. 
 
 [Title.] 
 Reply. 
 1. The plaintiffs admit that 64-64th shares in the said ship, the 
 " Two Ellens," were on or about the 9th day of March 1S67, mort- 
 gaged by the said C. M., D. F., and W. H., all of Weymouth, in 
 the county of Digby, Nova Scotia, to the said G. T. 
 
 "2. Save as aforementioned, all the several averments in the said 
 answer contained are respectively untrue. 
 
 3. If there was or is any such instrument of transfer as is men- 
 tioned in the second article of the said answer, the same has never 
 been registered according to the provisions of the Merchant Shipping 
 Act, 1854. 
 
 4. The said Gr. T. has never been domiciled in or resided in the 
 United Kingdom, and is now resident in Xova Scotia, and the 
 registered owners of the said vessel in the first paragraph of the 
 said defence mentioned were always and are domiciled in Nova 
 Scotia, and resident out of the United Kingdom. 
 
 [Title]. 
 ./,'. Joinder. 
 
 The defendant joins issue upon the third and fourth paragraphs 
 of the Reply. 
 
 Reply. 
 
 Rejoinder. 
 
 No. 13. 
 
 1S7 . B. No. 
 
 False Iu tne Hi S' n Court of Justice. 
 
 Imprison- Division. 
 
 > ,ENT - Writ issued 3rd August, 1876. 
 
 Between A. B Plaintiff, 
 
 and 
 K. F. .... Defendant. 
 
 Stati mi at of Claim. 
 1. The plaintiff is a journeyman painter. The defendant is a 
 builder, having his building yard, and carrying on business 
 at and for six months before and up to the 22nd 
 
 August 187 , the plaintiff was in the defendant's employment as a 
 journeyman painter.
 
 FIRST SCHEDULE. APPENDIX (c). '" 355 
 
 2. On the said 22nd August 187 , the plaintiff came to work as Pleadings, 
 usual in the defendant's yard, at about six o'clock in the morning. 
 
 3. A few minutes after the plaintiff had so come to work the 
 defendant's foreman X. Y., who was then in the yard, called the 
 plaintiff to him, and accused the plaintiff of having on the previous 
 day stolen a quantity of paint, the property of the defendant, from 
 the yard. The jilaintiff denied the chaige, but X. Y. gave the 
 plaintiff into the custody of a constable, whom he had previously 
 sent for, upon a charge of stealing paint. 
 
 4. The defendant was present at the time when the plaintiff was 
 given into custody, and authorised and assented to his being so 
 given into custody ; and in any case A'. Y., in giving him into 
 custody, was acting within the scope and in the course of his 
 employment as the defendant's foreman, and for the purposes of the 
 defendant's business. 
 
 5. The plaintiff upon being so given into custody, was taken by 
 the said constable a considerable distance through various streets, 
 on foot, to the police station, and he was there detained in 
 a cell till late in the same afternoon, when he was taken to the 
 police court, and the charge against him was heard before the 
 magistrate then sitting there, and was dismissed. 
 
 6. In consequence of being so given into custody, the plaintiff 
 suffered annoyance and disgrace, and loss of time and wages, and 
 loss of credit and reputation, and was thereby unable to obtain any 
 employment or earn any wages for three months. 
 
 The plaintiff claims I. damages. 
 
 The plaintiff proposes that this action shoidd be tried in 
 Middlesex. 
 
 [Title.] 
 
 Statement of Defence. 
 
 1. The defendant denies that he was present at the time when Defence 
 the plaintiff was given into custody, or that he in any way autho- 
 rised "i- assented to his being given into custody. And the said 
 
 X. }"., in giving the plaintiff into custody, did not act within the 
 scope or in the course of his employment as the defendant's fore- 
 man, or for the purposes of the defendant's business. 
 
 2. At some time about five or six o'clock on the 
 
 being the evening lief ore the plaintiff was given into custody, a 
 large quantity of paint had been feloniously stolen by some person 
 or persons from a shed upon the defendant's yard and premises. 
 
 3. At about 5.30 o'clock on the evening of the 
 
 the plaintiff, who had left off work about half an hour previously, 
 was seen coming out of the shed when no one else was in it, 
 although his work lay in a distant part of the yard from, and he had 
 no business in or near, the shed. He was then seen to go to the 
 back of a stack of timber in another part of the yard. Shortly 
 afterwards the paint was found to have been stolen, and it was 
 found concealed at the back of the stack of timber behind which 
 the plaintiff had been seen to go. 
 
 4. On the following morning, before the plaintiff was given into 
 custody, he was asked by A. )'. what he had been in the shed and 
 behind the stack of timber for, and he denied having been in either 
 place. A'. }'. had reasonable and probable cause for suspecting, and 
 did suspect that the plaintiff was the person who had stolen the 
 paint, and thereupon gave him into custody.
 
 3.5G 
 
 Pleadings. 
 Reply. 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 [Title.] 
 Reply. 
 
 The plaintiff joins issue upon the defendant's statement of defence. 
 
 No. 14. 
 
 closure. I J1 the High Court of Justice, 
 Chancery Division. 
 [Name of Jud<je.~\ 
 
 Writ issued [ 
 Between E. W. 
 
 and 
 O. S. and J. B. . 
 
 1S76. 
 
 Claim. 
 
 W. No. 672. 
 
 ]• 
 Plaintiff, 
 
 Defendants. 
 
 Statement of Claim. 
 
 1. By an indenture dated the 25th of March 1867, made between 
 the defendant O. S. of the one part, and the plaintiff of the other 
 part, the defendant O. S., in consideration of the sum of 10,000?. 
 paid to him by the plaintiff, conveyed to the plaintiff and his heirs 
 a farm containing 398 acres, situate in the parish of B., in the 
 county of D., with all the coal mines, seams of coal, and other 
 mines and minerals in and under the same, subject to a proviso for 
 redemption of the same premises on payment by the defendant O. S... 
 his heirs, executors, administrators, or assigns, to the Plaintiff, his 
 executors, administrators, or assigns, of the sum of 10,000/., with 
 interest for the same in the meantime at the rate of 4?. per cent. 
 per annum, on the 25th day of September then next. 
 
 2. By an indenture dated the 1st day of April 1867, made between 
 the defendant O. S. of the one part, and the defendant J. B. of the 
 other part, the defendant O. S. conveyed to the defendant J. B. and 
 his heirs the hereditaments comprised in the herein-before stated 
 security of the plaintiff, or some parts thereof, subject to the plaintiff's 
 said security, and subject to a proviso for redemption of the same 
 premises on payment by the defendant O. S., his heirs, executors, 
 administrators, or assigns, to the defendant J. B., his executory 
 administrators, or assigns, of the sum of 15,000/., with interest for 
 the same in the meantime at the rate of 5/. per cent, per annum. 
 
 3. The whole of the said sum of 10,000?., with an arrearof interest 
 thereon, remains due to the plaintiff on his said security. 
 
 The plaintiff claims as follows : — 
 
 1. That an account may be taken of what is due to the plaintiff 
 
 for principal money and interest on his said security, and that 
 the defendants may be decreed to pay to the plaintiff what 
 shall be found due to him on taking such account, together 
 with his costs of this action, by a day to be appointed by the 
 court, the plaintiff being ready and willing, and herebj 
 offering, upon being paid his principal money, interest, and 
 costs, at such appointed time, to convey the said mortgaged 
 premises as the court shall direct. 
 
 2. That in default of such payment the defendants may be fore- 
 
 closed of the equity of redemption in the mortgaged premises. 
 
 3. Such further or other relief as the nature of the case may 
 
 require.
 
 FIRST SCHEDULE.— APPENDIX (c). 3i 
 
 1876. W. No. 672. Pleadings, 
 In the High Court of Justice, 
 ( Ihancery Division. 
 [Name of Judge.] 
 
 Between E. W Plaintiff, 
 
 and 
 
 0. S. and J. B Defendants, 
 
 (by original action) 
 
 And between the said 0. S. . . . . . Plaintiff, 
 
 and 
 The said R. W. and J. B. and J. W. . Defendants, 
 
 (by counter-claim) 
 Tltc Defence and Counter-claim of the above-named 0. S. 
 
 1. This defendant does not admit that the contents of the Defence, 
 indenture of the 25th day of March 1867, in the plaintiff's statement 
 
 of complaint mentioned, are correctly stated therein. 
 
 2. The indenture of the 1st day of April 1867, in the statement 
 of claim mentioned, was not a security for the sum of 15,000/. and 
 interest at 5/. per cent, per annum, but for the sum of 14,000?. only, 
 with interest at the rate of 4/. 10s. per cent, per annum. 
 
 3. This defendant submits that under the circumstances in his 
 
 counterclaim mentioned, the said indentures of the 25th day of March 
 
 1867, and the 1st day of April 1S67, did not create any effectual 
 
 security upon the mines and minerals in and under the lands in the 
 
 same indentures comprised, and that the same mines and minerals 
 
 ought to be treated as excepted out of the said securities. 
 
 And by way of counter-claim this defendant states as follows : — Counter- 
 claim. 
 
 1 . At the time of the execution of the indenture next hereinafter 
 
 stated, J. C. A. was seised in fee simple in possession of the 
 lands described in the said indentures, and the mines and 
 minerals in and under the same. 
 
 2. By indenture dated the 24th of March 1860, made between the 
 
 said J. < '. A. of the first part, E. his wife, then E. S., spinster, 
 of the second part, and this defendant and the above-named 
 • I. W. of the third part, being a settlement made in contem- 
 plation of the marriage, shortly after solemnized, between the 
 said .1. ('. A. and his said wife, the said J. C. A. granted to 
 this defendant and the said J. W., and their heirs, all the coal 
 mines, beds of coal, and other the mines and minerals under 
 the said lands, with such powers and privileges as in the now- 
 stating indenture mentioned, for the purpose of winning, 
 working, and getting the same mines and minerals, to hold 
 the same premises to this defendant and the said J. W. anil 
 their heirs to the use of the said J. ( '. A., his heirs and 
 assigns, till the solemnization of the said marriage, and after 
 the solemnization thereof to the use of this defendant and the 
 said .1. YV., their executors and administrators, for the term 
 i i 500 v ars, from the day of the date of the now stating in- 
 denturc, u]ioii the trusts tin rein mentioned, being trusts for 
 the benefit of the said .1. < '. A., and his wife and the children 
 of thi ir marriagi , and from and after the expiration or other 
 di termination of the said term of 500 years, and in the mean- 
 time subject thereto, to the use of the said J, C. A., his heirs 
 and assigns for ever.
 
 358 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings. 3. By indenture dated the 12th of May 1S60, made between the 
 
 said J. C. A. of the one part, and "W. N. of the other part, 
 the said J. C. A. granted to the said W. N. and his heirs the 
 said lands, except the coal mines, beds of coal, and other mines 
 and minerals thereunder, to hold the same premises unto and 
 to the use of the said W. N., his heirs and assigns for ever, 
 by way of mortgage, for securing the payment to the said 
 W. N., his executors, administrators, or assigns, of the sum 
 of 26,000/. with interest as therein mentioned. 
 
 4. On the 14th of January 1S64, the said J. C. A. was adjudi- 
 
 cated a bankrupt, and shortly afterwards J. L. was appointed 
 creditor's assignee of his estate. 
 
 5. Some time after the said banknote}', the said W. INT., under a 
 
 power of sale in his said mortgage deed, contracted with this 
 defendant for the absolute sale to this defendant of the 
 property comprised in his said security for an estate in fee 
 simple in possesion, free from incumbrances, for the sum of 
 26,000?., and the said J. L , as such assignee as aforesaid, 
 agreed to join in the conveyance to this defendant for the 
 purpose of signifying his assent to such sale. 
 
 6. By indenture dated the 1st of September 1866, made 
 
 between the said W. X. of the first part, the said J. L. of 
 the second part, the said J. C. A. of the third part, and this 
 defendant of the fourth part, reciting the said agreement for 
 sale, and reciting that the said J. L., being satisfied that 
 the said sum of 26,0007. was a proper price, had, with the 
 sanction of the Court of Bankruptcy, agreed to confirm the 
 said sale, it was witnessed that in consideration of the sum 
 of 26,0007., with the privity and approbation of the said 
 J. L., paid by this defendant to the said W. N., he the said 
 W. N. granted, and the said J. C. A. ratified and confirmed 
 to this defendant and his heirs, all the hereditaments com- 
 prised in the said security of the 12th day of May 1860, 
 with their rights, members and appurtenances, and all the 
 estate, right, title, and interest of them, the said W. M. and 
 J. C. A. therein to hold the same premises unto and to the 
 use of this defendant, his heirs and assigns for ever. 
 
 7. The sale to this defendant was not intended to include anything 
 
 not included in the security of the 12th of May 1860, and 
 the said J. L. only concurred therein to signify his approval 
 of the said sale, and did not purport to convey any estate 
 vested in him ; and the lastly herein-before stated indenture 
 did not vest in this defendant any estate in the said mines 
 and minerals. 
 
 8. The plaintiff and the defendant J. B. respectively had before 
 
 they advanced to this defendant the moneys lent by them on 
 their securities in the plain tiff's claim mentioned, full notice 
 that the mines and minerals under the said lands did not 
 belong to this defendant. This fact appeared on the abstracts 
 of title delivered to them before the preparation of their said 
 securities. A valuation of the property made by a survey. >r 
 was furnished to them respectively on behalf of this defendant 
 before they agreed to advance their money on their said 
 securities ; but although the said lands are in a mineral 
 district the mines and minerals were omitted from Mich 
 valuation, and they resjieetively knew at the time of taking
 
 FIRST SCHEDULE. — APPENDIX (c). 359 
 
 their said securities that the same did not include any interest Pleadings, 
 in the mines and minerals. — 
 
 9. At the time when the securities of the plaintiff and the 
 
 defendant J. B. were respectively executed, the plaintiff and 
 the defendant J. B. respectively had notice of the said inden- 
 ture of settlement of the 24th day of March 1860. 
 
 10. At the time when the plaintiff's security was executed, the 
 
 mines and minerals under the said lands, with such powers 
 ami privileges as aforesaid, were vested in this defendant and 
 the said J. W. for the residue of the said term of 500 years, 
 and subject to the said term, the inheritance in the same 
 mines, minerals, powers and privileges was vested in the said 
 J. L. as such assignee as aforesaid. 
 
 1 1 . The said securit}- to the plaintiff was by mistake framed so as 
 to purport to include the mines and minerals under the said 
 lands, and by virtue thereof the legal estate in moiety of the 
 said mines and minerals became and now is vested in the 
 plaintiff for residue of the said term of 500 years. 
 
 The defendant 0. S. claims as follows : 
 
 1. That it may be declared that neither the plaintiff nor the 
 
 defendant J. B. has any charge or lien upon that one 
 undivided moiety, which in manner aforesaid became vested 
 in the plaintiff for the residue of the said term of 500 years, 
 of and in the mines and minerals in and under the lands 
 mentioned in the plaintiff's said security. 
 
 2. That it may be declared that the said mines and minerals, 
 
 rights, and privileges which by the said indenture of settle- 
 ment were vested in the defendant O. S. and the said J. \V. 
 for the said term of 500 years, upon trust as therein men- 
 tioned, ought to be so conveyed and assured as that the same 
 may become vested in the defendant O. S. and the said J. W. 
 for all the residue of the said term upon the trusts of the said 
 settlement. 
 
 3. That the said R. W. and J. W. may be decreed to execute all 
 
 such assurances as may be necessary for giving effect to the 
 declaration secondly herein-before prayed. 
 
 •1. To have such further or other relief as the nature of the case 
 may require. 
 
 1876. W. Xc 672. 
 In the High Court "f Justice. 
 ( !haaicery Division. 
 
 i Na/nu of Jvdgi , 
 Between Et. W Plaintiff, 
 
 and 
 ( ). S. and J. B. . . Defendants. 
 
 (by original action,) 
 
 And between tin- said 0. S. . . Plaintiff, 
 and 
 The said II. W., and .1. B., and -T. W. Defendants, 
 
 (by counter-claim).
 
 SCO surrtE'ME court of judicature act, 1875. 
 
 Pleadings. The Reply of the PMntijj /.'. II". 
 
 1. The plaintiff joins issue with the defendants upon their several 
 defences, and in reply to the statements alleged by the defendant 
 Reply. <j_ g^ \,y wav n f counter-claim, the plaintiff says as follows : 
 
 1. The plaintiff does not admit the execution of any such inden- 
 
 ture as is stated in the said counter-claim to bear date the 
 24th of March 1860. 
 
 2. The plaintiff does not admit that the indenture of the 12th of 
 
 May I860, is stated correctly in the statement of claim. 
 
 3. When the defendant O. S., in the year 1866. applied to the 
 
 plaintiff to advance him the sum of 10,000?,, he offered to 
 the plaintiff as a security the lands which were afterwards 
 comprised in the indenture of the 25th of March 186", 
 including the mines and minerals which he now allege-, were 
 not to form part of the security, and the plaintiff agreed to 
 lend the said sum upon the security of the said lands, includ- 
 ing such mines and minerals. During the negotiations for 
 the said loan a valuation of the property to be included in 
 the mortgage was delivered to the plaintiff on behalf of the 
 said defendant. Such valuation included the mines and 
 minerals; and the plaintiff consented to make the loan on 
 the faith of such valuation. The plaintiff did not know 
 when he took his security that it did not include any interest 
 in the said mines and minerals ; on the contrary, he believed 
 that the entirety of such mines and minerals was to be included 
 therein. 
 
 4. The plaintiff does not admit the contents of the indenture of 
 
 the 1st of September 1866, to be as alleged, or that it was .-. . 
 framed as not to include the said mines and minerals, or that 
 it was not intended to include anything not included in the 
 security of the 12th of May 1860, or that J. L. in the 
 counter-claim named only concurred therein to signify his 
 approval of the said sale, and did not purport to convey any 
 estate vested in him. 
 
 5. Save so far as the plaintiff's solicitor may have had notice by 
 
 means of the abstract of title that the mines and minerals 
 under the said lands did not belong to the defendant O. S., 
 the plaintiff had not any notice thereof, and he does not admit 
 that it appeared from the abstract of title that such was the 
 case. The mines were not omitted from any valuation 
 delivered to the plaintiff as mentioned in the counter-claim. 
 
 6. The plaintiff admits that when he took his security he was 
 
 aware that there was indorsed on the deed by which the said 
 lands were conveyed by J. C. A. in the counter-claim named 
 a notice of a settlement of 21th March 1860, but he had no 
 further or other notice thereof, and though his solicitor 
 inquired after such settlement none was ever produced. 
 
 7. The plaintiff submits that if it shall appear that no further 
 
 interest in the said mines and minerals was conveyed to him 
 bv his said security than one undivided moiety of a term of 
 500 years therein, as alleged by the said counter-claim, such 
 interest is effectually included in the plaintiff's said security, 
 and that he is entitled to foreclose the same.
 
 FIRST SCHEDULE. APPENDIX (c). 3G1 
 
 No. 15. Pleading-. 
 
 187 . B. No. 
 In the High Court of Justice. 
 
 Division. Fraud. 
 
 Writ issued 3rd August 1876. 
 
 Between A. B Plaintiff, 
 
 and 
 E. F. Defendant. 
 
 Statement of Claim. 
 
 1. In or about March 1875, the defendant caused to be Claim, 
 inserted in the Daily Telegraph Newspaper an advertisement, in 
 which he offered for sale the lease, fixtures, fittings, goodwill, and 
 stock-in-trade of a baker's shop and business, and described the same 
 
 as an increasing business, and doing 12 sacks a week. The advertise- 
 ment directed application for particulars to be made to X. Y. 
 
 2. The plaintiff having seen the advertisement applied to X Y., 
 who placed him in communication with the defendant, and negoci- 
 ations ensued between the plaintiff and the defendant for the sale 
 to the plaintiff of the defendant's bakery at with 
 the lease, fixtures, fittings, stock-in-trade, and goodwill. 
 
 3. In the course of these negociations the defendant repeatedly 
 stated to the plaintiff that the business was a steadily increasing 
 business, and that it was a business of more than 12 sacks a week. 
 
 4. On the 5th of April 1875, the plaintiff, believing the said 
 statements of the defendant to be true, agreed to purchase the said 
 premises from the defendant for 500?., and paid to him a deposit of 
 200/. in respect of the purchase. 
 
 5. On the 15th April the purchase was completed, an assignment 
 of the lease executed, and the balance of the purchase money paid. 
 On the same day the plaintiff entered into possession. 
 
 6. The plaintiff soon afterwards discovered that at the time of 
 the negociations for the said purchase by him and of the said 
 agreement, and of the completion thereof, the said business was and 
 had long been a decUning business ; and at each of those times, and 
 for a long time before, it had never been a business of more than 
 8 sacks a week. And the said premises were not of the value of 
 500/., or any saleable value whatever. 
 
 7. The defendant made the false representations herein-before 
 mentioned well knowing them to be false, and fraudulently, with 
 tin- intention of inducing the plaintiff to make the said purchase on 
 the faith of them. 
 
 The plaintiff claims I. damage-. 
 
 [Title.] 
 
 Stati im at of Defence. 
 
 1. The defendant says that at the time when ho made the Defence, 
 representations mentioned in the third paragraph of the statement 
 of claim and throughout the whole of the transactions between the 
 plaintiff and defendant, and down to the completion of the purchase 
 and the relinquishment by the defendant of the said shop and 
 business to the plaintiff, the said business was an increasing business, 
 and was a business of over 12 sacks a week. And the defendant 
 denies tin; allegations of tin; sixth paragraph of the statement of 
 claim.
 
 362 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings. 2. The defendant repeatedly during the negotiations told the 
 
 plaintiff that he must not act upon any statement or representation 
 of his, but must ascertain for himself the extent and value of the 
 said business. And the defendant handed to the plaintiff for this 
 purpose the whole of his books, showing fully and truthfully all the 
 details of the said business, and from which the nature, extent, 
 and value thereof could be fully seen, and those books were 
 examined for that purpose by the plaintiff, and by an accountant 
 on his behalf. And the plaintiff made the purchase in reliance 
 upon his own judgment, and the result of his own. inquiries and 
 investigations, and not upon any statement or representation 
 whatever of the defendant. 
 
 [Title.] 
 Reply. 
 Reply. The plaintiff joins issue upon the defendant's statement of defence. 
 
 No. 16. 
 
 187 . B. No. 
 
 r::r - In the High Court of Justice. 
 Division. 
 
 Writ issued 3rd August 1S76. 
 
 Between A. B. and CD Plaintiffs, 
 
 ami 
 E. F. and G. IT. . . . . Defendants. 
 
 Stati ./" nt of Claim. 
 
 Claim. \ The plaintiffs are brewers, carrying on their business at 
 
 under the firm of X. Y. <i- Co. 
 
 2. In the month of March 1872, M. N. was desirous of entering 
 into the employment of the plaintiffs as a traveller and collector, and 
 it was agreed between the plaintiffs and defendants and M. N., that 
 the plaintiffs should employ M. N. upon the defendant entering into 
 the guarantee herein- after mentioned. 
 
 3. An agreement in writing was accordingly made and entered 
 into, on or about the 30th March 1872, between the plaintiffs and 
 the defendant, whereby in consideration that the plaintiffs would 
 employ M. N. as then- collector the defendant agreed that he would 
 be answerable for the due accounting by M. N. to the plaintiffs for 
 and the due payment over by him to the plaintiffs of all moneys 
 which he shoidd receive on their behalf as their collector. 
 
 4. The plaintiffs employed M. N. as their collector accordingly, 
 and he entered upon the duties of such employment, and continued 
 therein down to the 31st of December 1873. 
 
 5. At various times between the 29th of September and the 25th 
 of December 1873, M. N. received on behalf of the plaintiffs and as 
 their collector sums of money from debtors of the plaintiffs amount- 
 in" - in the whole to the sum of 950?. ; and of this amount M. X. 
 neglected to account for or pay over to the plaintiffs sums amounting 
 in the whole to 227?., and appropriated the last-mentioned sums to 
 his own use. 
 
 6. The defendant has not paid the last-mentioned sums, or any 
 part thereof to the plaintiffs. 
 
 The plaintiffs' claim : —
 
 FIRST SCHEDULE. APPENDIX (c). 363 
 
 No. 17. Pleadings. 
 
 187 . B. No. 
 In the High Court of Justice, 
 
 Probate Division. Interest 
 
 Between A. B Plaintiff, ' Suit 
 
 and (Probate). 
 
 CD Defendant. 
 
 Statement of Claim. 
 
 1 . M. N., late of No. High Street, Putney, in the county of Claim. 
 Surrey, grocer, deceased, died on or aboxit the day of , 
 
 at No. 1, High Street, Putney, aforesaid, a widower, without child, 
 parent, brother or sister, uncle or aunt, nephew or niece. 
 
 2. The plaintiff is the cousin-gerinan, and one of the next of kin 
 of the deceased. 
 
 The plaintiff claims : — 
 
 That the Court decree to him a grant of letters of administration 
 
 of the personal estate and effects of the said deceased as his 
 
 lawful cousin-german, and one of his next of kin. 
 
 [Title.] 
 Defend . 
 
 1. The defendant admits that M. N. died a widower, without Defence. 
 child, parent, brother or sister, uncle or aunt, or niece, but he denies 
 
 that he died without nephew. 
 
 2. The deceased had a brother named G. B., who died in his life- 
 time. 
 
 3. G. B. was married to E. H. in the parish chiu*ch of in 
 the county of on the day of and had 
 issue of such marriage, the defendant, who was born in the month of 
 
 and is the nephew and next of kin of the deceased. 
 
 The defendant therefore claims : — 
 
 That the Court pronounce that he is the nephew and next of kin 
 of the deceased, and as such entitled to a grant of letters of 
 administration of the personal estate and effects of the deceased. 
 
 [Title.] 
 
 Reply. 
 
 1. The plaintiff denies that G. B. was married to E. II. Reply. 
 
 2. He also denies that the defendant is the issue of such marriage. 
 
 No. IS. 
 
 In the High Court of Justice. 187 . B. No. Landi.oko 
 
 Division. ,,, AND 
 
 I tNAST. 
 
 Writ issued 3rd August, 1876. 
 
 Between A. B. Plaintiff, 
 
 and 
 CD Defendant. 
 
 Statement of Claim, 
 
 1. On llii- day of the plaintiff, by deed, let claim. 
 
 to tin' defendant a house ami premises No. 52, Street, in the 
 
 City of London, for a term of 21 years from the day of 
 
 at the yearly rent of 120/., payable quarterly. 
 
 R 2
 
 364 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings 
 
 2. By the said deed the defendant covenanted to keep the said 
 house and premises in good and tenantable repair. 
 
 3. The said deed also contained a clause of re-entry, entitling the 
 plaintiff to re-enter upon the said house and premises, in case the 
 rent thereby reserved whether demanded or not should be in arrear 
 for 21 days, or in case the defendant should make default in the 
 performance of any covenant upon his part to be performed. 
 
 4. On the 24th June 187 a quarter's rent became due, and on 
 the 29th of September 187 another quarter's rent became due ; on 
 the 21st October 187 both had been in arrear for 21 days, and both 
 are still due. 
 
 5. On the same 21st October 187 the house and premises were 
 not and are not now in good or tenantable repair, and it would 
 require the expenditure of a large sum of money to reinstate the 
 same in good and tenantable repair, and the plaintiff's reversion is 
 much depreciated in value. 
 
 The plaintiff claims : — 
 
 1. Possession of the said house and premises. 
 
 2. I. for arrears of rent. 
 
 3. /. damages for the defendant's breach of his 
 covenant to repair. 
 
 4. I. for the occupation of the house and premises 
 from the 29th of September 1S7 to the day of recovering 
 possession. 
 
 The plaintiff proposes that this action should be tried in London. 
 
 Neces- 
 saries for 
 shit. 
 
 Claim. 
 
 187 
 
 No. 
 
 ■ ]• 
 
 . Plaintiffs, 
 . Defendants. 
 
 No. 19. 
 
 In the High Court of Justice. 
 Admiralty Division. 
 
 Writ issued [ 
 
 THE " ENTERPRISE." 
 
 Between A. B. and CD.. 
 
 and 
 E. F. and G. II. . 
 
 Statement of Claim. 
 
 1. The plaintiffs were at the time herein-after stated and are 
 engineers and ironfounders, carrying on business at Liverpool in the 
 county of Lancaster. 
 
 2. In the month of January 1872, whilst the above-named steam- 
 ship " Enterprise," belonging to the port of London, was in the port 
 of Liverpool, the plaintiffs, having received orders from the master 
 in that behalf, executed certain necessary work to her and supplied 
 her with certain necessary stores and materials, and caused her to 
 be supplied upon their credit with certain necessary work, labour, 
 materials, and necessaries, and thereby supplied the said ship with 
 necessaries within the meaning of the fifth section of the Admiralty 
 Court Act, 1861. 
 
 3. There is due to the plaintiffs in respect of such supply of neces- 
 saries to the said ship the sum of 577/. 2s. 6cL, and the plaintiffs can- 
 nut obtain payment thereof without the assistance of the Court.
 
 FIRST SCHEDULE. APPENDIX (c). 365 
 
 The plaintiffs claim :— Pleadings. 
 
 1. Judgment pronouncing for the claim of the plaintiffs. 
 
 2. The condemnation of the defendants and their bail therein, 
 
 with costs. 
 
 3. A reference, if necessary, of the claim of the plaintiffs to the 
 
 registrar, assisted by assessors, to report the amount thereof. 
 
 4. Such further relief as the nature of the case requires. 
 
 [Title.] 
 Defence. Defence. 
 
 1. The defendants deny the allegations contained in the third 
 paragraph of the statement of claim. 
 
 2. The defendants admit that the plaintiffs executed certain work 
 to the said ship, and supplied her with certain materials, but they 
 say, that a portion of the work so executed was executed badly and in- 
 sufficiently, and of the materials so supplied, some were bad and insuffi- 
 cient, and a portion of the work in the claim mentioned was done in and 
 about altering and endeavouring to make good such bad and insufficient 
 work and materials. The defendant has paid in respect of the work 
 and materials in the claim mentioned the sum of 356?. 17s. 9d., and 
 the said sum is sufficient to satisfy the claims of the plaintiffs. 
 
 3. The defendants deny the allegations contained in the second 
 paragraph of the claim, so far as they relate to any claim beyond the 
 said sum of 356/. 17s. 9d., and say that if the plaintiffs did execute 
 any work or did supply any materials other than the work and 
 materials mentioned in the second paragraph of this defence, such 
 work was not necessary work, and such materials were not necessary 
 materials, within the meaning of the fifth section of the Admiralty 
 Court Act, 1861, and were not supplied in such circumstances as to 
 render the defendants liable to pay for the same. 
 
 [Title.] 
 Reply. 
 1. The plaintiffs join issue iipon the statement of defence. Reply. 
 
 No. 20. 
 In the High Court of Justice. 187 B. No. 
 
 Division. 
 
 Writ issued 3rd August 1876. 
 
 Between A. B. . . . . . . Plaintiff. 
 
 and 
 E. F. Defendant. 
 
 Statement of Claim. 
 
 1. The plaintiff is a shoemaker, carrying on business at 
 
 The defendant is a soap and candle manufacturer, of Claim 
 
 2. On the 23rd May 1875, the plaintiff was walking eastward 
 along the south side of Fleet Street, in the city of London, at about 
 three o'clock in the afternoon. He was obliged to cross 
 
 Street, which is a street running into Fleet Street at right angles on 
 the south side. While he was crossing this street, and just before 
 he could reach the foot pavement on the further side thereof, a two- 
 horse van of the defendant's, under the charge and control of the 
 defendant's servants, was negligently, suddenly, and without any 
 
 Negligence
 
 366 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings, warning, turned at a rapul and dangerous pace out of Fleet Street 
 into Street. The pole of the van struck the 
 
 plaintiff and knocked him down, and he was much trampled by 
 the horses. 
 
 3. By the blow and fall and trampling the plaintiff's left arm was 
 broken, and he was bruised and injured on the side and back, as well 
 as internally, and in consequence thereof the plaintiff was for four 
 months ill and in suffering, and unable to attend to his business, and 
 incurred heavy medical and other expenses, and sustained great loss 
 of business and profits. 
 
 The plaintiff claims /. damages. 
 
 [Title.] 
 Statement of Defence. 
 Defence. j # The defendant denies that the van was the defendant's 
 
 van, or that it was under the charge or control of the defendant's ser- 
 vant. The van belonging to Mr. John Smith, of , 
 a carman and contractor employed by the defendant to carry and 
 deliver goods for him ; and the persons under whose charge and 
 control the said van was were the servants of the said Mr. John 
 Smith. 
 
 2. The defendant does not admit that the van was turned out of 
 Fleet Street, either negligently, suddenly, or without warning, or at 
 a rapid or dangerous pace. 
 
 3. The defendant says, that the plaintiff might and could, by the 
 exercise of reasonable care and diligence, have seen the van 
 approaching him, and avoided any collision with it. 
 
 4. The defendant does not admit the statements of the third 
 paragraph of the statement of claim. 
 
 [Title.] 
 Reply. 
 Reply. The plaintiff joins issue upon the defendant's statement of 
 
 defence. 
 
 No. 21. 
 In the High Court of Justice. 187 
 
 of S Sh S ip° N Admiralty Division. 
 
 Writ issued [ 
 THE "LADY OF THE LACE." 
 
 B. No. 
 
 Claim. 
 
 Between A. B. . 
 E.F. . 
 
 and 
 
 . Plaintiff, 
 . Defendant. 
 
 Statement of Claim. 
 
 1. On or about the 15th of July 1S68, an agreement was entered 
 into between the plaintiff and /. D., who was then the sole owner 
 of the abovenamed barque " Lady of the Lake," whereby J. D. 
 agreed to sell, and the plaintiff agreed to purchase, 32-t.Uth parts or 
 shares of the vessel for the sum of 500?. ; payment 300/. in cadi, 
 and the remainder by purchaser's acceptances at three and six 
 months date, and it was thereby agreed that the plaintiff was to be 
 commander of the vessel. 
 
 2. The plaintiff accordingly paid to J. D. the sum of 300/., and 
 gave him his (the plaintiff's) acceptances at three and six months
 
 FIRST SCHEDULE.— APPENDIX (c). 367 
 
 date for the residue of the said purchase money, and J. D. by bill Pleadings, 
 of sale transferred 32-64th parts or shares in the vessel of the 
 plaintiff, which bill of sale was duly registered on the ISth of July 
 1868 ; the plaintiff has since been and still is the registered owner of 
 such 32-6 4th share. 
 
 3. The vessel then sailed under the plaintiff's command on a 
 voyage from Sunderland to the Brazils and other ports, and then on 
 a homeward voyage to Liverpool, where she arrived on the 18th of 
 June 1869, and having there discharged her homeward cargo she 
 sailed thence under the plaintiff's command with a cargo to the 
 Tyne, and thence to Sunderland, at which port she arrived on the 
 9th of August 1869. 
 
 4. The plaintiff then made several ineffectual applications to 
 J. D., with a view to obtaining another charter for the said vessel, 
 and after she had been lying idle for a considerable time, the 
 plaintiff on or about the 16th of September 1869, obtained an advan- 
 tageous charter for her to proceed to Barcelona with a cargo of 
 coals, and with a view to enable her to execute such charter the 
 plaintiff paid the dock dues, and moved the vessel into a slipway in 
 order that her bottom might be cleaned, but on or about the 17th 
 of September, whilst the vessel was on shore adjoining the slipway 
 the defendant, to whom the said J. L>. had in the meantime trans- 
 ferred his 32-(J4tli parts, forcibly took the vessel out of the possession, 
 of the plaintiff, and refused and still refuses to allow the plaintiff, 
 to take the vessel on her said voyage to Barcelona, and by reason 
 thereof heavy loss is being occasioned to the plaintiff. 
 
 The plaintiff claims — 
 
 1. Judgment giving possession of the vessel "Lady of the 
 Lake " to the plaintiff. 
 
 ± The condemnation of the defendant in cost of suit, and in all 
 losses and damages occasioned by the defendant to the 
 plaintiff : 
 
 3. Such further relief as the nature of the case recprires. 
 
 [Title.] 
 Defence. 
 
 1. The defendant says that the acceptances in the second para- Defence. 
 graph of the claim mentioned were respectively dishonoured by the 
 plaintiff, and have never yet been paid by him. 
 
 2. It was agreed between the plaintiff and /. I)., that /. I), should 
 act, and he has since always acted, as ship's husband of the " Lady 
 of the Lake." 
 
 3. On the 31st of August 1869, /. J), sold to the defendant, for 
 the sum of 400/., and by bill of sale duly executed, transferred to 
 ldm his 32-64th shares, and the: bill of sale was duly registered on 
 the 1 tth of September following. 
 
 1. After the " Lady <>f the Lake " had arrived at Sunderland, and 
 after the defendant had purchased from J. Z>. his 32-64th shares of 
 
 the "Lady of the Lake," the defendant placed the vessel in the 
 ■ I'll 111 ' ' £ a Bhipkeeper. The plaintiff, however, un- 
 lawfully removed her from nil, possi 3ion, and thereupon the 
 defendant had the- vessel taken into the South Dock of the harbour 
 at Sunderland, with orders that she should be kept tin re. What the
 
 3G8 SUPREME COURT OP JUDICATURE ACT, 1875. 
 
 Pleadings, defendant did, as in this article mentioned, he did with the consent 
 and full approval of /. D. 
 
 5. At the time of the sale of the " Lady of the Lake " by /. D. to 
 the defendant as afore-mentioned, there was and there still is due 
 from the plaintiff, as part owner of the " Lady of the Lake," to / 
 D., as part owner and ship's husband, a sum of money exceeding 
 300Z. in respect of the vessel and her voyages over and above the 
 amount of the unpaid acceptances. 
 
 6. Save as herein appears, the averments in the fourth paragraph 
 of the claim contained are untrue, and if the charter-party mentioned 
 in that paragraph was obtained by the plaintiff as alleged, which 
 the defendant does not admit, it was obtained by him without the 
 authority, consent, or knowledge of J. D. or the defendant. 
 
 7. Before the defendant took possession of the vessel as afore- 
 mentioned, the plaintiff ceased to be master of her, with the consent 
 of /. D. or the defendant. 
 
 8. /. D. has instituted an action against the said vessel in 
 
 in order to have the accounts taken between him and the 
 plaintiff, and to enforce payment of the money due from the plaintiff 
 to him. 
 
 [Title.] 
 
 Reply. 
 
 1. The plaintiff says in reply to the first paragraph of the defence 
 that the bills therein mentioned were dishonoured by the plaintiff 
 because J. D. was indebted to the plaintiff in a large amount for his 
 wages as master, and for his share of the earnings of the " Lady of 
 the Lake," and refused payment thereof. 
 
 2. J. D. did not place the vessel in the exclusive custody or pos- 
 session of a shipkeeper as in the fifth paragraph of the defence stated 
 or implied. On the contrary, the vessel continued in the custody 
 and possession of the plaintiff, who still holds her register. A man 
 was sent on board the vessel by /. D. to look after /. D.'s share in 
 the said vessel while she was in dock, but he did not dispossess the 
 said plaintiff or take exclusive possession of the vessel, and the 
 plaintiff was not dispossessed of the vessel until on or about the 
 17th of September last. 
 
 3. Except as herein-before appears the plaintiff joins issue upon 
 the defendant's statement of defence. 
 
 [Title.] 
 
 Rejoinder. 
 Rejoinder. The defendant joins issue upon the first and second paragraphs of 
 
 the Reply. 
 
 No. 22. 
 
 1S7 . B. No. 
 
 Promissory In the Hi^h Covirt of Justice. 
 NoTE - Division. 
 
 Writ issued 3rd August IS 76. 
 
 Between A. B Plaintiff, 
 
 and 
 E.F. Defendant.
 
 FIRST SCHEDULE. APPENDIX (c). ?> GO 
 
 Statement of Claim. 
 
 1. The defendant on the day of made his Pleadings. 
 promissory note, whereby he promised to pay to the plaintiff or his ru:" 
 order I. three months after date. 
 
 2. The note became due on the day of 1S74> 
 and the defendant has not paid it. 
 
 The plaintiff claims : — 
 
 The amount of the note and interest thereon to judgment. 
 The plaintiff proposes that this action should be tried in the 
 county of 
 
 [Title.] 
 
 Statement of Defence. Defence. 
 
 1. The defendant made the note sued upon under the following 
 circumstances : — The jdaintiff and defendant had for some years 
 been in partnership as coal merchants, and it had been agreed 
 between them that they should dissolve partnership, that the 
 plaintiff should retire from the business, that the defendant should 
 take over the whole of the partnership assets and liabilities, and 
 should pay the plaintiff the value of his share in the assets after 
 deducting the liabilities. 
 
 2. The plaintiff thereupon undertook to examine the partnership 
 books, and inquire into the state of the partnership assets and 
 liabilities ; and he did accordingly examine the books, and make 
 the said inquiries, and he thereupon represented to the defen- 
 dant that the assets of the firm exceeded 10,000/., and that the 
 liabilities of the firm were under 3,000/., whereas the fact was that 
 the assets of the firm were less than 5,000/., and the liabilities of the 
 firm largely exceeded the assets. 
 
 3. The misrepresentations mentioned in the last paragraph 
 induced the defendant to make the note now sued on, and there 
 never was any other consideration for the making of the note. 
 
 [Title.] 
 Reply. Reply. 
 
 The plaintiff joins issue on the defence. 
 
 No. 23. 
 
 187 . B. No. 
 In the High < !ourt of Justice, Probate of 
 
 ,, , , -rv . . Will in 
 
 Probate .Division. 
 
 Writ issued [ ]. 
 
 Between A. B Plaintiff, 
 
 and 
 E. F. .... Defendant. 
 
 Statement of Claim. 
 
 1 . C. T.. late of Bicester, in the county of Oxford, gentleman, Clair 
 deceased, who died on the 20th of January 1875, at Bicester, bi ing 
 of the age of 21 years, made hislastwill, with one codicil thereto, 
 the Baid will bearing date the first day of October 1874, and the said 
 codicil the first of January L875, and in the said will appointed the 
 plaintiff sole executor thereof. 
 
 2. The said will and codicil were Bigned by the deceased [or, by 
 X. Y., in the presence and by the directions of the deceased, or 
 signed by the deceased who acknowledged his signature, or «.■>■ the. 
 
 R 5 
 
 SOLEMN 
 FORM.
 
 370 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings. cn« nnnj //e] in the presence of two witnesses present at the same 
 time, the said will in the presence of H. P. and J. R., and the said 
 codicil in the presence of J. D. and G. £., and who subscribed the 
 same in the presence of the said deceased. 
 
 3. The deceased was at the time of the execution of the said will 
 and codicil respectively of sound mind, memory, and understanding. 
 The plaintiff claims : — 
 
 That the Court shall decree probate of the said will and codicil 
 in solemn form of law. 
 
 [Title.] 
 
 Statement of Defence. 
 The defendant says as follows : — 
 Defence. i. The said will and codicil of the said deceased were not duly 
 
 executed according to the provisions of the statute 1 Vict. c. 26. 
 
 2. The deceased at the time the said will and codicil respec- 
 tively purport to have been executed was not of sound mind, 
 memory, and understanding. 
 
 3. The execution of the said will and codicil was obtained by the 
 undue influence of the plaintiff [and others acting with him, whose 
 names are at present unknown to the defendant]. 
 
 4. The execution of the said will and codicil was obtained by the 
 fraud of the plaintiff, such fraud, so far as is within the defendant's 
 present knowledge being [state the nature of the fraud]. 
 
 5. The said deceased at the time of the execution of the said will 
 and codicil olid not know and approve of the contents thereof, or of 
 the contents of the residuary clause in the said will [as the case 
 may be]. 
 
 6. The deceased made his true last will, dated the 1st day of 
 January 1873, and in the said will appointed the defendant sole 
 executor thereof. [Propound this will as in paragraphs two and three 
 of claim.] 
 
 The defendant claims : — 
 
 1. That the Court will pronounce against the said will and 
 codicil propounded by the plaintiff : 
 
 2. That the Court will decree probate of the said will of the said 
 deceased, dated the 1st of January 1873, in solemn form of law. 
 
 [Title.] 
 Reply. 
 
 Reply. 1. The plaintiff joins issue upon the statement of defence of the 
 
 defendant, as contained in the first, second, third, fourth, and fifth 
 paragraphs thereof. 
 
 2. The plaintiff says that the said will of the said deceased, dated 
 the 1st of January 1S73, was duly revoked by the will of the said 
 1st of October 1873, propounded by the plaintiff in his statement 
 
 Recovery 
 
 OF LAND. 
 
 No. 24. 
 In the High Court of Justice. 187 
 Common Pleas Division. 
 
 . B. No. 
 
 Landlord 
 
 Writ issued 3rd August 1876. 
 
 
 TENANT. 
 
 Between A. B 
 
 and 
 CD 
 
 Plaintiff, 
 Defendant.
 
 FIRST SCHEDULE. APPENDIX (c). 371 
 
 Statement of Claim. Pleading. 
 
 1. On the clay of the plaintiff let to Claim. 
 
 the defendant a house, No. 52, Street, in the city of f/^ry,^.J^£f^ 
 
 London, as tenant from year to year, at the yearly rent of 120?., 
 payable quarterly, the tenancy to commence on the 
 day of 
 
 2. The defendant took possession of the house and continued 
 tenant thereof until the day of last, 
 when the tenancy determined by a notice duly given. 
 
 3. The defendant has disregarded the notice and still retains 
 possession of the house. 
 
 The plaintiff claims : — 
 
 1. Possession of the house. 
 
 2. 1. for mesne profits from the day of 
 
 The plaintiff proposes that this action should be tried in London. 
 
 In the High Court of Justice, 1S7 . No. 
 
 Common Pleas Division. 
 
 Between A. B. . . . Plaintiff, 
 
 and 
 CD.. . . . Defendant, 
 
 (by original action) 
 
 And between CD.. . . . Plaintiff, 
 
 and 
 A. B. . . . . Defendant, 
 
 (by counter claim). 
 The defence and counter claim of the above named C D. 
 
 1. Before the determination of the tenancy mentioned in the Defence, 
 statement of claim, the Plaintiff A. B., by writing dated the 
 
 day of , and signed by him, agreed to grant to the 
 
 defendant C. D. a lease of the house mentioned in the statement of Counter- 
 claim, at the yearly rent of 150?., for the term of 21 years, com- claim. 
 mencing from the day of , when the defendant 
 
 (J. D.'b tenancy from year to year determined, and the defendant 
 lias since that date been and still is in possession of the house under 
 the said agreement. 
 
 2. By way of counter claim the defendant claims to have the 
 agreement specifically performed and to have a lease granted to 
 him accordingly, and for the purpose aforesaid, to have this action 
 transferred t<> the Chancery division. 
 
 187 . No. 
 In the High < lourt of Justice, 
 < ihancery I >i\ ision. 
 (Transferred by order dated day of .) 
 
 Between .1. B Plaintiff, 
 
 and 
 
 CD Defendant, 
 
 (by original action) 
 
 And between C. B Plaintiff, 
 
 and 
 
 A.B Defendant, 
 
 (by counter-claim).
 
 372 
 
 SUPREME COURT OP JUDICATURE ACT, 1875. 
 
 Pleadings. 
 Reply. 
 
 Recovery 
 
 OF LAND. 
 
 Claim. 
 
 Defence. 
 
 The reply of the plaintiff A. B. 
 
 The plaintiff A. B. admits the agreement stated in the defendant 
 C. -Z?.'s statement of defence, but he refuses to grant to the defendant 
 a lease, saying that such agreement provided that the lease should 
 contain a covenant by the defendant to keep the house in good repair 
 and a power of re-entry by the plaintiff upon breach of such covenant, 
 and the plaintiff says that the defendant has not kept the house in 
 good repair, and the same is now in a dilapidated condition. 
 
 [Title.] 
 Joinder of Issue. 
 The defendant C. D. joins issue upon the plaintiff A. B.'s state- 
 ment in reply. 
 
 Xo. 25. 
 
 In the High Court of Justice, 
 Common Pleas Division. 
 
 Writ issued 3rd August 1876. 
 
 Between A. B. and C. D. 
 
 and 
 E.F. 
 
 187 
 
 B. No. 
 
 Plaintiffs, 
 Defendant. 
 
 Statement of Claim. 
 
 1. K. L., late of Sevenoaks in the county of Kent, duly executed 
 his last will, dated the 4th day of April 1870, and thereby devised 
 his lands at or near Sevenoaks, and all other his lands in the county 
 of Kent, unto and to the use of the plaintiffs and their heirs, upon 
 the trusts therein mentioned for the benefit of his daughters Mar- 
 garet and Martha, and appointed the plaintiffs executors thereof. 
 
 2. K. L. died on the 3rd day of January 1875, and his said will 
 was proved by the plaintiffs in the Court of Probate on or about the 
 4th day of February 1875. 
 
 3. K. L. was at the time of his death seised in fee of a house at 
 Sevenoaks, and two farms near there called respectively 
 
 the Home farm containing 27 b' acres, and the Longton farm con- 
 taining 700 acres, both in the County of Kent. 
 
 4. The defendant, soon after the death of K. L., entered into 
 possession of the house and two farms, and has refused to give them 
 up to the plaintiff. 
 
 The plaintiff claims : — 
 
 1. Possession of the house and two farms : 
 
 2. I. for mesne profits of the premises from the death 
 of A'. L. till such possession shall be given. 
 
 The plaintiff proposes that this action should be tried in the 
 County of Kent. 
 
 [Title.] 
 
 Stot cm tut of Defence. 
 
 1. The defendant is the eldest son of I. L. deceased, who was the 
 eldest son of A'. L., in the statement of claim named. 
 
 2. By articles bearing date the 31st day of May 1827, and made 
 previous to the marriage of A'. L. with Martha his intended wife, 
 A'. L., in consideration of such intended marriage, agreed to settle 
 the house and two farms in the statement of claim mentioned (and
 
 FIRST SCHEDULE. — APPENDIX (c). 373 
 
 of which he was then seised in fee) to the use of himself for his life, Pleadings, 
 with remainder to the use of his intended wife for her life, and after 
 the survivor's decease, to the use of the heirs of the body of the said 
 K. L. on his wife begotten, with other remainders over. 
 
 3. The marriage soon after took effect ; K. L., by deeds of lease 
 and release, bearing date respectively the 4th and 5th of April 
 1828, after reciting tlie articles in alleged performance of them, con- 
 veyed the house and two farms to the use of himself for his life, 
 with remainder to the use of his wife for her life, and after the 
 decease of the survivor of them, to the use of the heirs body of K. L. 
 on the said Martha to be begotten, with other remainders over. 
 
 4. There was issue of the marriage an only son Thomas L 
 
 and two daughters. After the death of Thomas L , which 
 
 took place in February 1864, K. L., on the 3rd May 1864, executed 
 disentailing assurance, which was duly enrolled and thereby con- 
 veyed the house and two farms to the use of himself in fee. 
 
 [Title.] 
 Reply. 
 The plaintiffs join issue upon the defendant's statement of defence. Reply. 
 
 No. 26. 
 In the High Court of Justice. Salvage. 
 
 Admiralty Division. 
 
 Writ issued [ ]. 
 
 THE "CAMPANIL.*' 
 Between A. B. and 0. D. Plaintiffs, 
 
 and 
 E. F. and G. II. ... Defendants. 
 
 Statement of Claim. 
 
 1. The "Brazilian" is a screw steamer belonging to the port of claim 
 Newcastle, of the burthen of 1,359 tons gross registered tonnage, 
 
 and propelled by engines of 130 horse power, and at the time of the 
 rendering of the salvage services hereinafter mentioned she was 
 navigated by her master and a crew of twenty-four hands. She left 
 the port of Newcastle on the 27th of November 1873, on a voyage 
 to Genoa, and thence by way of Palmaras and Aguilas to the Tyne, 
 and about 10 a.m. on the 26th of December 1873, in the course of 
 her homeward voyage, with a cargo of merchandise, she was off the 
 coast of Portugal, the Tsland of Ons bearing about S.E. by E., when 
 those on board her sighted a disabled steamer about four points on 
 their starboard bow, in-shore, flying signals of distress. A strong 
 gale was blowing at the time, and there was a very heavy sea 
 running. 
 
 2. The "Brazilian" at once made towards the disabled steamer, 
 which proved to be the " Campanil," the vessel proceeded against in 
 this action. She was heavily laden with a cargo of iron ore. The 
 "Brazilian" as she approached the "Campanil" signalled to her, 
 and the "Campanil" answered by signal that her engines had 
 broken down. By this time the "Campanil " was heading in-shore, 
 rolling heavily, and shipping a large quantity of water. The 
 "Brazilian" came under the lee of the "Campanil" and asked if 
 she wanted assistance. Her master replied that he wanted to be
 
 374: SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings, towed to Vigo as his vessel had lost her screw. The master of the 
 " Brazilian " then asked those on board the " Campanil " to send 
 him a hawser, and for a long time those on board the " Brazilian " 
 made attempts to get a hawser from the " Campanil," and exposed 
 themselves and their vessel to great danger in doing so. The wind 
 and sea rendering it impossible to get the hawser whilst the 
 "Brazilian" was to leeward of the " Campanil," the "Brazilian" 
 went to windward and attempted to float lines by means of life 
 buoys to the "Campanil.'' During all this time the "Campanil" 
 was quite unmanageable, and yawed about, and there was very 
 great difficulty in manoeuvring the "Brazilian " so as to retain com- 
 mand over her and keep her near the "Campanil." It was necessary 
 to keep constantly altering the engines of the " Brazilian," setting 
 them on ahead and reversing them quickly, and in consequence the 
 engines laboured heavily and were exposed to great danger of being 
 strained. 
 
 3. Whilst the " Brazilian " was endeavouring to float lines to the 
 " Campanil," the "Campanil " made a sudden lurch and struck the 
 " Brazilian ' ' on her port quarter, knocking in her port bulwark and 
 rail, and causing other damage to the vessel. After many unsuccess- 
 ful efforts by those on board the " Brazilian," and after they had lost 
 two life buoys and a quantity of rope, a hawser from the " Campanil " 
 was at length made fast on board the " Brazilian," and the " Brazil- 
 ian " with the "Campanil " in tow steamed easy ahead. A second 
 hawser was then got out and made fast with coir springs, and the 
 " Brazilian " then commenced to tow full speed ahead, each hawser 
 having a full scope of ninety fathoms. 
 
 4. The " Brazilian " made towards Vigo, which was about thirty- 
 five miles distant : the vessels made about two knots an hour, the 
 "Brazilian" keeping her engines going at full speed. The 
 " Brazilian " laboured very heavily, and both vessels shipped large 
 quantities of water. 
 
 5. About noon one of the tow ropes broke, and both vessels were 
 in danger of being driven ashore, broken water and rocks appearing 
 to leeward, distant about two miles. After great difficulty the 
 broken hawser was made fast again with a heavy spring of a 
 number of parts of rope, and the "Brazilian" towed ahead under 
 the lee of Ons Island. 
 
 6. Shortly afterwards the weather moderated and the sea went 
 down a little, and the "Brazilian" was able to make more way, 
 and about 7 p.m. the same day she towed the " Campanil " into 
 Vigo harbour in safety. 
 
 7. The " Brazilian " was compelled to remain in harbour the 
 next day to pay port charges and clear at the Custom House. 
 
 8. The coast off which the aforesaid services were rendered is 
 rocky and exceedingly dangerous, and strong currents set along it, 
 and but for the services rendered by the " Brazilian " the 
 " ( 'ampanil " must have gone ashore and been wholly lost, together 
 with her cargo, and in all probability her master and crew would have 
 been drowned. No other steamer was in sight, and there was m it 
 any other prospect of any other efficient assistance. 
 
 9. In rendering the said service the " Brazilian " and those on 
 board her were exposed to great danger. Owing to the heavy sea, 
 and the necessity of towing with a long scope of hawser, there was
 
 FIRST SCHEDULE. APPEXDIX (c). 375 
 
 great clanger of fouling the screw of the " Brazilian," and it Pleadings. 
 required constant vigilance on the part of the master and crew to 
 prevent serious accident. The master and crew of the " Brazilian " 
 underwent much extra fatigue and exertion. 
 
 10. The damage sustained by the "Brazilian" in rendering the 
 said services amounts to the sum of 150?., and the value of the extra 
 quantity of coal consumed in consequence of the said services is 
 estimated at 16?., and U. Is. 5c?. was paid by the owners of the 
 " Brazilian " for harbour dues and other charges at Vigo. 
 
 11. The value of the " Campanil," her cargo and freight, at the 
 time of the salvage services, was as follows that is to say : The 
 " Campanil " was of the value of 13,000?., her cargo was of the 
 value of 300?., and the gross amount of freight payable upon 
 delivery of the cargo laden on board her at Barrow-in-Furness was 
 675?. 
 
 12. The value of the " Brazilian," her freight and cargo was 
 about 25,050?. 
 
 The plaintiffs claim : — 
 
 1. Such an amount of salvage as to the Court may seem just : 
 
 2. That the defendants and their bail be condemned in costs : 
 
 3. Such further or other relief as the nature of the case may 
 require. 
 
 [Title.] 
 
 Statement of Defence. 
 
 1. The defendants say that upon the 22nd of December 1873, Defence. 
 the iron screw steamship " Campanil," of the burden of 660 tons 
 register gross, propelled by engines of 70 horse power, navigated by 
 David Boughton, her master, and a crew of sixteen hands, left 
 Porman, bound to Bai'row-in-Furness, laden with a cargo of iron ore. 
 
 2. At about 8 a.m. of the 26th of December, whilst the " Campanil " 
 was prosecuting her voyage, the shaft of her propeller broke outside 
 the stern tube, and she lost her propeller. The " Campanil " was 
 then brought to the wind, which was south by east, blowing fresh, 
 and she proceeded under sail for Vigo, and continued to do so till 
 about 9.30 a.m., when two steamships which had been for some time 
 in sight, and coming to the northward, apj)roaehed the "Campanil." 
 The ensign of the "Campanil" was hoisted, union up, as a signal 
 to one of such steamships, which afterwards came to the "Cam- 
 panil," and proved to be the "Brazilian," whose owners, master, 
 and crew are the plaintiffs. 
 
 3. The "Brazilian" then signalled the "Campanil" and inquired 
 what was the matter, and was signalled in reply that the " Campanil " 
 had lost her propeller, and required to be towed to Vigo, upon which the 
 " Brazilian " signalled for the rope of the " Campanil," in order to take 
 her in tow. After this the "Brazilian" steamed round the 
 "Campanil" and up on her starboard bow, and in so doing the 
 "Brazilian" came with her port quarter into the starboard bow of the 
 
 ■< lampanil" and did her considerable damage. 
 
 4. The "Brazilian" then threw a heaving line on board the 
 "Campanil," and one "f the " Campanil's " hawsers was attached 
 to the line and hauled on board the " Brazilian," which passed one 
 of her hawsers to the " Campanil " by means of life buoys, and 
 when such hawsers had been secured between the two vessels the
 
 37G SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Pleadings. << Brazilian " commenced to tow the " Campanil " for Vigo, it being 
 at the time about 10.30 a.m. and Ons Island then bearing about 
 south-east by south, and distance about 15 miles. 
 
 5. The "Brazilian" proceeded with the "Campanil" in tow, but 
 owing to the two vessels being laden, and to the small power of the 
 " Brazilian," she was only able to make very slow progress with the 
 "Campanil," and it was not until 6.30 p.m. of the said day that the 
 "Brazilian" arrived at Vigo with the "Campanil," which then 
 came to anchor off the town there. 
 
 6. The defendants on the day of 
 
 tendered to the plaintiffs and have paid into Court the sum of 350/. 
 for the services so as aforesaid rendered to the " Campanil " and her 
 said cargo and freight, and offered to pay the costs, and submit 
 that the same be ample and sufficient. 
 
 [Title.] 
 
 Reply. 
 
 Reply- 1. The plaintiffs admit the first and second articles of the answer, 
 
 and they admit that the " Brazilian " came into collision with the 
 
 " Campanil," and caused slight damage to the "Cainpanil," but save 
 
 as aforesaid they join issue upon the statement of defence. 
 
 Xo. 27. 
 
 187 . No. 
 Trespass In the High Court of Justice. 
 to Land. Division. 
 
 Writ issued 3rd August 1876. 
 Between A. B. . . . . . . Plaintiff, 
 
 and 
 E. F. Defendant. 
 
 Statement of Claim. 
 
 Claim. 1. The plaintiff was on the 5th March 1876, and still is the owner 
 
 and occupier of a farm called Highfield Farm, in the parish of 
 and county of 
 
 2. A private road, known as Highfield Lane, runs through a 
 portion of the plaintiff's farm. It is bounded upon both sides by fields 
 of the plaintiff's, and is separated therefrom by a hedge and ditch. 
 
 3. For a long time prior to the 5th March 1876, the defendant 
 had wrongfully claimed to use the said road for his horses and car- 
 riages on the alleged ground that the same was a public highway, and 
 the plaintiff had frequently warned him that the same was not a 
 public highway, but the plaintiff's private road, and that the defen- 
 dant must not so use it. 
 
 4. On the 5th March 1876, the defendant came with a cart and 
 horse, and a large number of servants and workmen, and forcibly 
 used the road, and broke down and removed a gate which the plain- 
 tiff had caused to lie placed across the same. 
 
 5. The defendant and his servants and workmen on the same 
 occasion pulled down and damaged the plaintiff's hedge and ditch 
 upon each side of the road, and went upon the plaintiff's field beyond 
 the hedge and ditch, and injured the crops there growing, and dug 
 up and injured the soil of the road ; and in any case the acts men- 
 tioned in this paragraph were wholly unnecessary for the assertion 
 of the defendant's alleged right to use, or the user of the said road 
 as a highway.
 
 FIRST SCHEDULE. APPENDIX (c). 377 
 
 The plaintiff claims : Pleadings. 
 
 1. Damages for the wrongs complained of. 
 
 2. An injunction restraining the defendant from any repetition 
 of any of the acts complained of. 
 
 3. Such further relief as the nature of the case may require. 
 
 [Title.] 
 Statement of Defence. 
 
 1. The defendant says that the road was and is a public highway Defence. 
 for horses and carriages ; and a few days before the 5th March 
 
 1876, the plaintiff wrongfully erected the gate across the road for 
 the purpose of obstructing and preventing, and it did obstruct and 
 prevent the use of the road as a highway. And the defendant on 
 the said 5th March 1876, caused the said gate to be removed, in 
 order to enable him lawfully to use the road by his horses and car- 
 riages as a highway. 
 
 2. The defendant denies the allegations of the fifth paragraph of 
 the statement of claim, and says that neither he nor any of his 
 workmen or servants did any act, or used any violence other than 
 was necessary to enable the plaintiff lawfully to use the highway. 
 
 [Title.] 
 
 Reply. 
 
 The plaintiff joins issue upon the defendant's statement of defence. Reply. 
 
 No. 28. 
 
 Form, of Demurrer. 
 
 In the High Court of Justice, 
 Division. 
 
 A. B. v. C. D. 
 
 The defendant [plaintiff] demurs to the [plaintiff's statement of 
 complaint or defendant's statement of defence, or of set-off, or of 
 counter-claim], [or to so much of the plaintiff's statement of com- 
 plaint as claims or as alleges as a breach of contract the 
 
 matters mentioned in paragraph seventeen, or as the case may be], 
 and says that the same is bad in law on the ground that [here state a 
 ground of demurrer] and on other grounds, sufficient in law to 
 sustain this demurrer. 
 
 No. 29. 
 Memorandum of Entry of Demurrer for Argument. 
 
 1874. B. No. 
 In the High Court of Justice, 
 Division. 
 
 A. R. v. C. D. 
 
 Enter for the argument the demurrer of 
 to 
 
 X Y., 
 
 Solicitor for the plaintiff [or, <Lr.]
 
 378 SUPREME COURT OF JUDICATURE ACT, 187-5. 
 
 Judgments. APPENDIX D. 
 
 Eorjis of Judgment. 
 
 1. Default of Appearance and Defence in Case of Liquidated 
 
 Demand. 
 
 1876. B. No. 
 In the High Cotirt of Justice, 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and E. F. . . . Defendants. 
 
 30th November 1876. 
 
 The defendants [or the defendant C D.] not having appeared to 
 the writ of summons herein [or not havi red any statement of 
 
 defence'], it is this day adjudged that the plaintiff recover against the 
 said defendant /., and costs, to be taxed. 
 
 2. Judgment in default of Appearance in Action for Recovery of 
 
 Land. 
 
 [Title, &c] 
 30th November 1876. 
 
 No appearance having been entered to the writ of summons 
 herein, it is this day adjudged that the plaintiff recover possession of 
 the land in the said writ mentioned. 
 
 3. ./ ' defaxdt of Appearand and Defence after Assess- 
 
 ment of Damages. 
 
 1876. B. No. 
 
 In the High Court of Justice, 
 Division. 
 
 Between A. B. and CD. . . . Plaintiffs, 
 
 and 
 E. F. and G. U. . . . Defendants. 
 
 30th November 1876. 
 
 The defendants not having appeared to the writ of summons here- 
 in [or not having delivered a statement of defence'], and a writ of 
 inquiry, dated 1876, having been issued directed to the 
 
 sheriff of to assess the damages which the plaintiff 
 
 was entitled to recover, and the said sheriff having by his return 
 dated the 1876, returned that the said damages have 
 
 been assessed at I., it is adjudged that the plaintiff 
 
 recover /., and costs to be taxed. 
 
 4. Judgment at Trial by Judge without a Jury. 
 
 [ Fear, letter, and number.] 
 Division. 
 
 day of 18 
 
 \If in Cham-cry Division, name of Judge.] 
 
 Between A. B. . . . . Plaintiff, 
 
 and 
 C D., E. K, and G. IT. . Defendants. 
 
 This action coming on for trial [the day of
 
 FIRST SCHEDULE. APPENDIX (d). 379 
 
 and] this day, before in the presence of counsel Judgments. 
 
 for the plaintiff and the defendants [or, if some of tit c deft ndants do not 
 appear, for the plaintiff and the defendant C. I)., no one appearing for 
 the defendants E. F. and G. H., although they were duly served with 
 notice of trial as by the affidavit of filed the day of 
 
 appears,] upon hearing the probate of the will of , 
 
 the answers of the defendant C. D., E. F., and G. II, to interroga- 
 tories, the admission in writing, dated and signed 
 by [Mr. the solicitor for] the plaintiff A. B. and by Mr. 
 the solicitor for] the defendant C. D., the affidavit of 
 filed the day of , the affidavit 
 of filed the day of , the evidence 
 of taken on their oral examination at the trial, and 
 an exhibit marked X., being an indenture dated, &c. and made 
 between [parties], and what was alleged by counsel on both sides. 
 This court doth declare, &c. 
 
 And this Court doth order and adjudge, &c. 
 
 5. Judgment after trial by a Jury. 
 
 [Title, &c] 
 15th November 1876. 
 
 The action having on the 12th and 13th November 1876, been 
 tried before the Honourable Mr. Justice and a 
 
 special jury of the county of , and the jury having 
 
 found [state findings as in officer's certificate], and the said Mr. 
 Justice having ordered that judgment be entered for 
 
 the plaintiff for I. and costs of suit [or as the case may be] : 
 
 Therefore it is adjudged that the plaintiff recover against the defen- 
 dant I. and /. for his costs of suit [or that the 
 plaintiff recover nothing against the defendant, and that the defen- 
 dant recover against the plaintiff /. for his costs of defence, 
 or as the case may be]. 
 
 6. Judgment after Trial before Referee. 
 
 [Title, &c] 
 30th November 1876. 
 
 The action having on the 27th November 1876, been tried before 
 X. V., Esq., an official [or special] referee; and the said X. Y. 
 having found [state substance of referees certificate], it is this day 
 adjudged that 
 
 7. Judgment upon Motion for Judgment. 
 
 [Title, &c] 
 30th November 1876. 
 
 This 'lay liefore Mr. A', of counsel for the plaintiff 
 
 [or as the can may &< !, moved on behalf of the said 
 
 Judgment moved for], and the said .Mi-. X. having been heard of 
 counsel for and .Mr. )'. of counsel for 
 
 l "int adjudj i d
 
 380 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Praecipes. 
 
 APPENDIX E. 
 
 Forms of Precipe. 
 1. Fieri facias. 
 
 1876. B. No. 
 In the High Court of Justice, 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and others .... Defendants. 
 Seal a writ of fieri facias directed to the sheriff of to levy 
 
 against C. D. the sum of I. and interest thereon 
 
 at the rate of !. per centum per annum from the 
 
 day of [and I. costs] to . 
 
 Judgment [or order] dated day of 
 
 [Taxing master's certificate, dated day of .] 
 
 X. Y. solicitor for [pa/rty on whose 
 behalf writ is to issue.] 
 
 2. Elegit. 
 
 187 . B. No. 
 In the High Court of Justice. 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and others .... Defendants. 
 
 Seal a writ of elegit directed to the sheriff of 
 against of in the county of 
 
 for not paying to A. B. the sum of I., together with interest 
 
 thereon, from the day of [and the sum of I. 
 
 for cost,] with interest thereon at the rate of 4?. per centum per 
 annum. 
 
 Judgment [or order] dated day of 18 
 
 [Taxing master's certificate, dated day of 18 .] 
 
 X. I., 
 
 Solicitor for 
 
 3. Venditioni Exponas. 
 
 187 . B. No. 
 In the High Court of Justice. 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and others .... Defendants. 
 Seal a writ of venditioni exponas directed to the sheriff of 
 to sell the goods and of C. D. taken under a writ of fieri 
 
 facias in this action tested day of 
 
 X. Y., 
 
 Solicitor of
 
 FIRST SCHEDULE. APPENDIX (e). 381 
 
 4. Fieri Facias de Bonis Ecclesiasticis. Praecipes. 
 
 187 . B. No. 
 In the High Court of Justice, 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 CD Defendant. 
 
 Seal a writ of fieri facias de bonis ecclesiasticis directed to the 
 bishop [or archbishop as the case may be] of to levy against 
 
 C. D. the sum of I. 
 
 Judgment [or order] dated day of 
 
 [Taxing master's certificate, dated day of ]. 
 
 X. Y., 
 
 Solicitor for 
 
 5. Scquestrari Facias de Bonis Ecclesiasticis. 
 
 187 . B. No. 
 In the High Court of Justice, 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and others . . Defendants. 
 Seal a writ of seimestrari facias directed to the Lord Bishop 
 of against C. I). for not paying to A. B. 
 
 the sum of I. 
 
 6. Writ of Sequestration. 
 
 187 . B. No. 
 In the' High Court of Justice, 
 r ,H0' Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and others . . Defendants. 
 Seal a writ of sequestration against C. D. for not 
 
 at the suit of A. B. directed to [names of Commissioners]. 
 Order dated day of 
 
 7. Writ of Possession. 
 
 187 . B. No. 
 In the High Court of Justice, 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and others . . Defendants. 
 Seal a writ of possession directed to the sheriff of 
 to deliver possession to A. B. of 
 
 Judgment dated day of 
 
 8. Writ of Delivery. 
 
 187 . B. No. 
 In the High Court of Justice, 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. 1). and others . . Defendants. 
 Seal a writ of delivery directed to the sheriff of to 
 
 make delivery to A. B. of
 
 382 
 
 Writs of 
 
 Execution. 
 
 Forms of 
 Writs. 
 
 SUPREME COURT OF JUDICATURE ACT, 1875. 
 9. Writ of Attachment. 
 
 In the High Court of Justice, 
 Division. 
 Between A. B. . 
 
 and 
 
 C. D. and others 
 Seal in pursuance of order dated 
 an attachment directed to the sheriff of 
 not delivering to A. B, 
 
 187 . B. No. 
 
 . Plaintiff, 
 
 . Defendants, 
 day of 
 against C. D. for 
 
 APPENDIX F. 
 
 Forms of Writs. 
 
 1. Writ of Fieri Facias. 
 
 In the High Court of Justice, 
 Division. 
 
 Between A. B. . 
 
 and 
 C. D. and others 
 
 1S7 . B. No. 
 
 . Plaintiff, 
 . Defendants. 
 
 Victoria, by the Grace of God of the United Kingdom of Great 
 Britain and Ireland Queen, Defender of the Faith. 
 To the sheriff of greeting. 
 
 We command you that of the goods and chattels of C. D. in your 
 bailiwick you cause to be made the sum of 1. and also 
 
 interest thereon at the rate of I. per centum per annum 
 
 from the day of * which said sum of 
 
 money and interest were lately before us in our High Court of 
 Justice in a certain action [or certain actions, as the case may &i 
 wherein A. B. is plaintiff and C. D. and others are defendants [o/'in 
 a certain matter there depending intituled " In the matter of E. F." 
 as the case may be] by a judgment [or order as the case may be] of 
 our said Court, bearing date the day of 
 
 adjudged [or ordered, as the case may be] to be paid by the said 
 C. D. to A. B., together with certain costs in the said judgment 
 [or order as the case may be] mentioned, and which costs have been 
 taxed and allowed by one of the taxing masters of our said Court at 
 the sum of L as appears by the certificate of the said 
 
 taxing master, dated the day of . And 
 
 that of the goods and chattels of the said C. D. in your bailiwick you 
 further cause to be made the said sum of /. [costs], together 
 
 with interest thereon at the rate of 41. per centum per annum from 
 the day of ,+ and that you have that 
 
 money and interest before us in our said Court immediately after 
 the execution hereof to be paid to the said A. B. in pursuance of 
 the said judgment [or order as the case may be]. And in what 
 manner you shall have executed this our writ make appear to us in 
 < air said Court immediately after the execution thereof. And have 
 there then this writ. 
 Witness, &c. 
 
 * Day of the judgment or order, or day on which money directed to be paid, 
 or day from which interest is directed by the order to run, as the case may be. 
 
 t The date of the certificate of taxation. The writ must be so moulded as to 
 follow the substance of the judgment or order.
 
 FIEST SCHEDULE. APPENDIX (f). 383 
 
 2. Writ of Elegit. Writs of 
 
 187 . B. No. Execution. 
 In the High Court of Justice, 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. B. and others .... Defendants. 
 
 Victoria, by the grace of God of the United Kingdom of Great 
 
 Britain and Ireland Queen, Defender of the Faith. 
 
 To the sheriff of greeting. 
 
 Whereas lately in our High Court of Justice in a certain action 
 
 [or certain actions, as the case may he] there depending, wherein A. B. 
 
 is plaintiff and C. D. and others are defendants [or in a certain 
 
 matter there depending, intituled " In the matter of E. F.," as the 
 
 case may he] by a judgment [or order, as the case may he] of our said 
 
 Court made in the said action [or matter, as the case may he], and 
 
 bearing date the day of , it was adjudged 
 
 [or ordered, as the case may he] that C. B. should pay unto A. B. the 
 
 sum of /., together with interest thereon after the rate of 
 
 I. per centum per annum from the day of 
 
 together also with certain costs as in the said judgment [or order, as 
 the case may he] mentioned, and which costs have been taxed and 
 allowed by one of the taxing masters of the said Court, at 
 
 the sum of 1. as appears by the certificate of the said taxing 
 
 master, dated the day of . And afterwards 
 
 the said A. B. came into our said Court, and according to the statute 
 in such case made and provided, chose to be delivered to him all the 
 goods and chattels of the said C. D. in your bailiwick, except his 
 oxen and beasts of the plough, and also all such lands, tenements, 
 rectories, tithes, rents, and hereditaments, including lands and here- 
 ditaments of copyhold or customary tenure, in your bailiwick as the 
 said C. D., or any one in trust for him, was seised or possessed of on 
 the day of in the year of our Lord J or at 
 
 any time afterwards, or over which the said C. B. on the said 
 day of or at any time afterwards had any disposing power 
 
 which he might without the assent of any other person exercise for 
 his own benefit, to hold to him the said goods and chattels as his 
 proper goods and chattels, and to hold the said lands, tenements, 
 . rectories, tithes, rents, and hereditaments respectively, according to 
 the nature and tenure thereof to him and to his assigns, until the 
 said two several sums of I. and 1., together 
 
 with interest upon the said sum of /., at the rate of 
 
 I. per centum per annum from the said ^J^ 
 
 day of and on the said sum of 1. (costs) 
 
 at the rate of 41. per centum per annum from the [aflAHOifi day 
 
 of shall have been levied. Therefore we command'you 
 
 that without delay you cause to be delivered to the said A. B. by a 
 reasonable price and extent all the goods and chattels of the said 
 C. D. in your bailiwick, except his oxen and beasts of the plough, 
 and also all such lands and tenements, rectories, tithes, rents, and 
 hereditaments, including lands and hereditaments of copyhold or 
 tomary tenure, in your bailiwick as the said 0. D., or any person 
 or persons in trust fur him was or were seized or possessed of on 
 the said day of ,§ or at any time after- 
 
 wards, or over which the said C. B. on the said day of §, 
 
 t The clay on which the judgment or order was made. 
 § The day on which the decree or order was made.
 
 384 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Writs of or at any time afterwards had any disposing power which he might 
 Execution -without the assent of any other person, exercise for his own benefit, to 
 hold the said goods and chattels to the said A. B. as his proper goods and 
 chattels, and also to hold the said lands, tenements, rectories, tithes, 
 rents, and hereditaments respectively, according to the nature and 
 tenure thereof, to him and to his assigns until the said two several sums 
 of /. and I. together with interest as afore- 
 
 said, shall have been levied. And in what manner you shall have 
 executed this our writ make appear to us in our Court aforesaid, 
 immediately after the execution thereof, under your seals, and the 
 seals of those by whose oath you shall make the said extent and 
 appraisement. And have then this writ. 
 Witness ourself at Westminster, &c. 
 
 Writ of Venditioni Exponas. 
 
 1875. B. No. 
 In the High Court of Justice, 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and others .... Defendants. 
 Victoria, by the grace of God of the United Kingdom of Great 
 Britain and Ireland Queen, Defender of the Faith. 
 To the sheriff of greeting. 
 
 Whereas by our writ we lately commanded you that of the goods 
 and chattels of C. D. [here recite the fieri facias to the end."] And on the 
 day of you returned to us in 
 
 the Division of our High Court of Justice afore- 
 
 said, that by virtue of the said writ to you directed you had taken 
 goods and chattels of the said V. D., to the value of the money and 
 interest aforesaid, which said goods and chattels remained in your 
 hands unsold for want of buyers. Therefore, we being desirous that 
 the said A. B. should be satisfied his money and interest command 
 you that you expose to sale and sell, or cause to be sold, the goods 
 and chattels of the said C. D., by you in form aforesaid taken, and 
 every part thereof, for the best price that can be gotten for the same, 
 and have the money arising from such sale before us in our said 
 Court of Justice immediately after the execution hereof, to be paid 
 to the said A. B. And have there then this writ. 
 
 Witness ourself at Westminster, the day of 
 
 in the year of our reign. 
 
 Writ of Fieri facias cle Bon is Ecclesiasticis. 
 
 1875. B. No. 
 In the High Court of Justice, 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and others . . . Defendants. 
 
 Victoria, by the grace of God of the United Kingdom of Great 
 Britain and Ireland Queen, Defender of the Faith : To the Bight 
 Reverend Father in God [John] by Divine permission Lord Bishop 
 of greeting : We command you, that of the eccle- 
 
 siastical goods of C. D., clerk in your diocese, you cause to be made 
 I. which lately before us in our High Court of Justice in
 
 FIRST SCHEDULE.— APPENDIX (f). 385 
 
 :i certain action [or certain actions, as tht cast may be] wherein A. B. Writs of 
 is plaintiff and C. D. is defendant [or in a certain matter there Execution, 
 depending, intitided " In the matter of E. F." as the case may be], 
 by a judgment [or order, as the case may be] of our said Court bearing- 
 date the day of , was adjudged [or ordered, 
 as the case may be] to be paid by the said C. D. to the said A. £., 
 together with interest on the said sum of at the rate 
 of J. per centum per annum, from the day of 
 
 and have that money, together with such interest as 
 aforesaid before us in our said Court immediately after the execution 
 hereof, to be rendered to the said A. B., for that our sheriff of 
 
 returned to us in our said Court on [or 
 
 " at a day now past "] that the said C. I), had not any goods or 
 chattels or any lay fee in his bailiwick whereof he could cause to be 
 made the said I. and interest aforesaid or any part thereof, 
 
 and that the said C. D. was a beneficed clerk (to wit) rector of rectory 
 [or vicar of the vicarage] and parish church of , in the 
 
 said sheriff's county, and within your diocese [as in the return], and 
 in what manner you shall have executed this our writ make appear 
 to us in our said Court immediately after the execution hereof, and 
 have you there then this writ. Witness ourself at Westminster, the 
 day of in the year of our Lord. 
 
 5. Writ of Fieri Facias to the Archbishop tie Bonis Ecclesiasticls 
 during the vacancy of a Bishop s See. 
 
 Victoria [&c. as in the preceding form] : To the Eight Reverend 
 Father in God [John] by Divine Providence Lord Archbishop of 
 Canterbury, Primate of all England and Metropolitan, greeting : 
 We command you, that of the ecclesiastical goods of C. I)., clerk in 
 the diocese of which is in the province of Canterbury, 
 
 as ordinary of that church, the episcopal see of now 
 
 being vacant, you cause to be made [&c, conclude as in the preceding 
 form]. 
 
 6. Writ of Sequcstrari Facias de Bonis Ecclesiasticis. 
 
 1875. B. No. 
 In the High Court of Justice. 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and others .... Defendants. 
 
 Victoria, by the C race of God <>f the United Kingdom of Great 
 Britain and Ireland Queen, Defender of the Faith : To the Right 
 Reverend Father in God [John] by Divine permission Lord Bishop 
 of greeting : Whereas we lately commanded our 
 
 sheriff of that he should omit not by reason of any 
 
 liberty of his comity, but that lie should enter the same, and cause 
 [to be made, if after the return to << Jit ri facias, or delivered, if after 
 the return, to an elegit, <(■'•., and m either casi recite the former writ ]. 
 And whereupon our said sheriff of on 
 
 [or " at a day past "] returned to us in the division of 
 
 our said Court of Justice, that the said C. D. was a beneficed clerk ; 
 that is to say, rector nf the rectory [or vicar <if the vicarage] and 
 ]'ii ih church iif in the county of , and 
 
 a
 
 386 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 Writs of within your dioce.su, and that he had not any goods or chattels, or 
 Execution. an y j a y £ ee j Q j^ bailiwick [here follow the words of the sheriff's 
 return]. Therefore, we command you that you enter into the said 
 rectory [or vicarage] and parish church of , and take 
 
 and sequester the same into your possession, and that you hold the 
 same in your possession until yon shall have levied the said /. 
 
 and interest aforesaid, of the rents, tithes, rentcharges in lieu of 
 tithes, oblations, obventions, fruits, issues, and profits thereof, and 
 other ecclesiastical goods in your diocese of and belonging to the 
 said rectory [or vicarage] and parish church of and to 
 
 the said ft I), as rector [or vicar] thereof to be rendered to the said 
 A. B., and what you shall do therein make appear to us in our said 
 Court immediately after the execution hereof, and have you there 
 then this writ. Witness ourself at Westminster, the day 
 
 of in the year of our Lord 
 
 7. Writ of Possession. 
 
 187 . B. No. 
 
 In the High Court of Justice, 
 Division. 
 
 Between A. B. Plaintiff, 
 
 and 
 ft D. and others . . . Defendants. 
 
 Victoria, to the sheriff of , greeting : 
 
 Whereas lately in our High Court of Justice, by a judgment of the 
 Division of the same Court [A. B. recovered] or [E. F. 
 was ordered to deliver to A. B.] possession of all that 
 
 with the appurtenances in your bailiwick : Therefore, we 
 command you that you omit not by reason of any liberty of your 
 county, but that you enter the same, and without delay you cause 
 the said A. B. to have possession of the said land and premises with 
 the appurtenances. And in what manner you have executed this 
 our writ make appear to the Judges of the Division of 
 
 our High Court of Justice immediately after the execution hereof, 
 and have you there then this writ. Witness, &c. 
 
 8. Writ of Delivery-. 
 
 187 . B. No. 
 
 In the High Court of Justice, 
 Division. 
 
 Between A. B. Plaintiff, 
 
 and 
 • ft D. and others . . . Defendants. 
 
 Victoria, by the grace of God of the United Kingdom of Great 
 Britain and Ireland Queen, Defender of the Faith, to the sheriff of 
 greeting : We command you, that without delay you 
 cause the following chattels, that is to say [here enumerate tin 
 chattels reeorered hi/ the judgment for the return of which execution 
 has been ordered to issue], to be returned to A. B., which the said 
 A. B. lately in < mr recovered against ft. D. [or 
 
 ft D. was ordered to deliver to the said A. B.] in an action in the 
 Division of our said Court. And we further command 
 you, that if the said chattels cannot be found in your bailiwick, you
 
 FIRST SCHEDULE. APPENDIX (f). 38 
 
 distrain the said 0. D. by all his lands and chattels in your baili- Writs of 
 wick, so that neither the said C. D. nor any one for him do lay hands Execution. 
 on the same until the said C. D. render to the said A. B. the said 
 chattels ; and in what manner you shall have executed this our writ 
 make appear to the Judges of the Division of our High Court of 
 Justice, immediately after the execution hereof, and have you there 
 then this writ. Witness, &c. 
 
 The like, but instead of a distress until the chattel is returned, com- 
 manding the Sheriff to levy on defendant's goods the assessed * 
 value of it. 
 [Proceed as in the preceding form until the, * and then thus:] 
 And we further command you, that if the said chattels cannot be 
 found in your bailiwick, of the goods and chattels of the said C. D. 
 in your bailiwick you cause to be made I. [the assessed 
 
 value of the chattels], and in what manner you shall have executed 
 this our writ make appear to the Judges of the 
 
 Division of our High Court of Justice at Westminster, immediately 
 after the execution hereof, and have you there then this writ. 
 Witness, &c. 
 
 9. Writ of Attachment, 
 
 187 . No. 
 In the High Court of Justice, 
 Division. 
 
 Between A. B. Plaintiff, 
 
 and 
 C. D. and others . . Defendants. 
 
 Victoria, &c. 
 
 To the sheriff of greeting. 
 
 We command you to attach C. I), so as to have him before us in 
 the Division of our High Court of Justice where- 
 
 soever the said Court shall then be, there to answer to us, as well 
 touching a contempt which he it is alleged hath committed against 
 us, as also such other matters as shall be then and there laid to his 
 charge, and further to perform and abide such order as our said 
 Court shall make in this behalf, and hereof fail not, and bring this 
 writ with you. Witness, &c. 
 
 10. Writ of Sequestration. 
 
 187 . B. No. 
 In the High Court of Justice. 
 Division. 
 
 Between A. B Plaintiff, 
 
 and 
 C. D. and others .... Defendants. 
 
 Victoria, &c. 
 
 To [names of not las than four Commissioners] greeting. 
 Whereas lately in the Division of our High Court of 
 
 Justice in a certain action there depending, wherein A. B. is 
 
 plaintiff and ( '. />. and others arc defendants \<ir, in a certain matter 
 then depending, intituled " Tn the matter of E. I<\," as the case may 
 be] by a judgment [or order as the case may be] of our said Court 
 made in the said action [or matter], and bearing date the 
 
 S2
 
 388 SUPREME COURT OF JUDICATURE ACT. 1875. 
 
 Writs of day ( ,f 137 j jt was ordered that the said C. D. should [pay into 
 xecution. ( < our t i t ne C r e dit of the said action the sum of I. ; or, as the 
 case may be}. Know ye, therefore, that we, in confidence of your 
 prudence and fidelity, have given, and hy these presents do give 
 to you, or any three or two of you, full power and authority to enter 
 upon all the messuages, lands, tenements, and real estate whatsoever 
 of the said C. />., and to collect, receive and sequester in to your hands 
 not only all the rents and profits of his said messuages, lands, tene- 
 ments, and real estate, but also all his goods, chattels, and personal 
 estates whatsoever ; and therefore we command you, any three or 
 two of you, that you do at certain proper and convenient days and 
 hours, go to and enter upon all the messuages, lands, tenements, and 
 real estates of the said C. D., and that you do collect, take and get 
 into your hands not only the rents and profits of his said real estate, 
 but also all his goods, chattels, and personal estate, and detain and 
 keep the same under sequestration in your hands until the said C. D. 
 shall [pay into Court to the credit of the said action the sum of 
 I., or, as the case may fee,] clear his contempt, and our said 
 Court make other order to the contrary. Witness, &c.
 
 SECOND SCHEDULE. 
 
 389 
 
 SECOND SCHEDULE. 
 
 Session and Chapter. 
 
 6 Geo. 4. c. 84. 
 
 32 & 33 Vict. c. 71. 
 
 32 & 33 Vict. c. 83. 
 
 36 & 37 Vict. c. GG. 
 
 Title. 
 
 An act to provide for 
 the augmenting the 
 salaries of the Master 
 of the Rolls and the 
 Vice-Chancellor of 
 England, the Chief 
 Baron of the Court of 
 Exchequer, and the 
 Puisne Judges and 
 Barons of the Courts 
 in Westminster Hall, 
 and to enable His 
 Majesty to grant an 
 annuity to such Vice- 
 Chancellor, and addi- 
 tional annuities to 
 such Master of the 
 Rolls, Chief Baron, 
 and Puisne Judges 
 and Barons on their 
 resignation of their 
 respective offices. 
 
 The Bankruptcy Act 
 1869. 
 
 The Bankruptcy Re- 
 peal and Insolvent 
 Court Act 1869. 
 
 Supreme Court of 
 Judicature Act 1873. 
 
 Extent of Repeal. 
 
 Section seven. 
 
 Section one hundred 
 and sixteen, from 
 " provided that at any 
 time," inclusive, to 
 the end of the section. 
 
 Section nineteen from 
 " provided that at any 
 time," inclusive, to 
 the end of the section. 
 
 So much of sections 
 three and sixteen as 
 relates to the London 
 Court of Bankruptcy, 
 section six, section 
 nine, section ten, so 
 much of section thir- 
 teen as relates to ad- 
 ditional judges of the 
 Court of Appeal, sec- 
 tion thirty-four from 
 ' ' all matters pending 
 "in the London 
 " Court of Bank- 
 " ruptcy," to " Lon- 
 " don Court of Bank- 
 " ruptcy," section 
 thirty-five, section 
 forty-eightj section 
 fifty-three, section 
 sixty-three, section 
 sixty-eight, section 
 sixty-nine, section 
 seventy, section 
 
 seventy-one, section 
 seventy-two, section 
 seventy-three, section 
 seventy-four, and the 
 whole of the schedule.
 
 390 SUPREME COURT OF JUDICATURE ACT, 1875. 
 
 AT THE COURT AT OSBORNE HOUSE.. 
 ISLE OF WIGHT. 
 
 The Y-lth day of August, 1875. 
 
 Present, 
 
 THE QUEEN'S MOST EXCELLENT MAJESTY 
 
 IN COUNCIL. 
 
 Whereas by an Act passed in the present Session of 
 Parliament, intituled "An Act to amend and extend the 
 Supreme Court of Judicature Act. 1873," it is enacted 
 that Her Majesty may, at any time after the passing and 
 before the commencement of the said Act, by Order in 
 Councd, made upon the recommendation of the Lord 
 Chancellor, the Lord Chief Justice of England, the Master 
 of the Rolls, the Lord Chief Justice of the Common 
 Pleas, the Lord Cliief Baron of the Exchequer, and the 
 Lords Justices of Appeal in Chancery, or any five of 
 them, and the other judges of the several courts intended 
 to be united and consolidated by the said principal Act 
 as amended by the said Act, or of a majority of such 
 other judges, make any further or additional Rules of 
 Court for carrying the said principal Act and the said 
 Act into effect, and in particular for all or any of the 
 following matters, so far as they are not provided for by 
 the Rules in the first schedule to the said Act ; that is to 
 say, (1) for regulating the sittings of the High Court of 
 Justice and the Court of Appeal, and of any Divisional 
 or other Courts thereof respectively, and of the judges of 
 the said High Cornet sitting in Chambers ; and (2) for 
 regulating the pleadings, practice, and procedure in the 
 High Court of Justice and Com't of Appeal : and (3) 
 generally for regulating any matters relating to the practice 
 and procedure of the said Courts respectively, or to the 
 duties of the officers thereof or of the Supreme Court, or 
 to the costs of proceedings therein :
 
 ADDITIONAL RULES. 391 
 
 Now, therefore, Her Majesty, in pursuance of the said 
 Act, and by and with the advice of Her Privy Council, 
 and upon the recommendation of the Lord Chancellor, the 
 Lord Chief Justice of England, the Master of the Eolls, 
 the Lord Chief Justice of the Common Pleas, the Lord 
 Chief Baron of the Exchequer, and the Lords Justices of 
 Appeal in Chancery, and a majority of the other judges of 
 the several courts intended to he united and consolidated 
 by the said principal Act as amended by the said Act, is 
 pleased to make and issue the Additional Rules of Court 
 following for the purposes aforesaid. 
 
 C. L. PEEL. 
 
 ADDITIONAL RULES OF COURT UNDER THE 
 SUPREME COURT OF JUDICATURE ACT. 1875. 
 
 ORDER I. 
 
 "Where any written deposition of a witness has been 
 tiled for use on a trial, such deposition shall be printed, 
 unless otherwise ordered. 
 
 ORDER II. 
 
 The Rules of Court as to printing depositions and 
 affidavits to be used on a trial shall not apply to depositions 
 and affidavits which have previously been used upon any 
 proceeding without having been printed. 
 
 ORDER III. 
 
 Other affidavits than those required to be printed by 
 Order XXXVIIL, Rule G, in the schedule to the Supreme 
 Court of Judicature Art, lS7r>, maybe printed if all the 
 parties interested consent thereto, or the Court or Judge 
 so order. 
 
 ORDER IV. 
 
 The third Rule of the Order XXXIV. in the lirst 
 chedule to the Supreme Court of Judicature Act, liS7.">, 
 
 shall apply to a special case, pursuant to the Act of l."> 
 
 & 14 Victoria, c. 35.
 
 392 ORDER IN COUNCIL. 
 
 OEDEE V. 
 
 Where, pursuant to Eiiles of Court, any pleading, 
 special case, petition of right, deposition or affidavit is 
 to be printed, and where any printed or other office copy 
 thereof is to be taken, the following regulations shall be 
 observed : — 
 
 1. The party on whose behalf the deposition or affi- 
 davit is taken and filed is to print the same in the manner 
 provided by Enle 2 of Order LVI. in the first schedule 
 to the Supreme Court of Judicature Act, 1875. 
 
 2. To enable the party printing, to print any deposi- 
 tion, the officer with whom it is filed shall on demand 
 deliver to such party a copy written on draft paper on 
 one side only. 
 
 3. The party printing shall, on demand in writing, 
 furnish to any other party or his solicitor any number of 
 printed copies, not exceeding tin, upon payment therefor 
 at the rate of Id. per folio for one copy, and £d. per 
 folio for every other copy. 
 
 4. The solicitor of the party printing shall give credit 
 for the whole amount payable by any other party for 
 printed copies. 
 
 5. The party entitled to be furnished with a print shall 
 not be allowed any charge in respect of a written copy, 
 unless the Court or Judge shall otherwise direct. 
 
 6. The party by or on whose behalf any deposition, 
 affidavit, or certificate is filed shall leave a copy with the 
 officer with whom the same is filed, who shall examine it 
 with the original and mark it as an office copy ; such 
 copy shall be a copv printed as above provided where 
 such deposition or affidavit is to be printed. 
 
 7. The party or solicitor who has taken any printed or 
 written office copy of any deposition or affidavit is to 
 produce the same upon every proceeding to which the same 
 relates. 
 
 8. Where any party is entitled to a copy of any deposi- 
 tion, affidavit, proceeding, or document filed or prepared 
 by or on behalf of another party, which is not required 
 to be printed, such copy shall be furnished by the party by 
 or on whose behalf the same lias been tiled or prepared.
 
 ADDITIONAL RULES. 393 
 
 9. The party requiring any such copy, or his solicitor, 
 is to make a written application to the party by whom 
 the copy is to be furnished, or his solicitor, with an under- 
 taking to pay the proper charges, and thereupon such copy 
 is to be made and ready to be delivered at the expiration of 
 twenty-four hours after the receipt of such request and 
 undertaking, or within such other time as the Court or 
 Judge may in any case direct, and is to be furnished 
 accordingly upon demand and payment of the proper 
 charges. 
 
 10. In the case of an ex parte application for an in- 
 junction or writ of ne exeat regno, the party making such 
 application is to furnish copies of the affidavits upon which 
 it is granted upon payment of the proper charges imme- 
 diately upon the receipt of such written request and 
 undertaking as aforesaid, or within such time as may be 
 specified in such request, or may have been directed by 
 the Court. 
 
 11. It shall lie stated' in a note at the foot of every 
 affidavit filed on whose behalf it is so filed, and such note 
 shall be printed on every printed copy of an affidavit or 
 set of affidavits, and copied on every office copy and copy 
 furnished to a party. 
 
 12. The name and address of the party or solicitor by 
 whom any copy is furnished is to be endorsed thereon in 
 like manner as upon proceedings in Court, and such party 
 or solicitor is to be answerable, for the same being a true 
 copy of the original, or of an office copy of the original, 
 of which it purports to lie a copy, as the case may be. 
 
 13. The folios of all printed and written office copies, 
 and copies delivered or furnished to a party, shall be 
 numbered consecutively in the margin thereof, and such 
 written copies shall lie written in a neat and legible manner 
 on the same paper as in the case of printed copies. 
 
 II. In case any party or solicitor who shall be required 
 to furnish any such written copy as aforesaid shall either 
 refuse or, for twenty-four hours from the time when the 
 application for such copy has been made, neglect to 
 furnish the same, the person by whom such application 
 shall be made shall lie at, Liberty to procure an office copy 
 from the office in which the original shall have been filed, 
 and in such case, no costs shall lie dm; or payable to I lie 
 solicitor so making default in respect of the copy or copies 
 SO applied for. 
 
 8 5
 
 394 ORDER IN COUNCIL. 
 
 15. Where, by any Order of the Court (whether of 
 appeal or otherwise) or a Judge, any pleading, evidence, or 
 other document is ordered to be printed, the Court or 
 Judge may order the expense of printing to be borne and 
 allowed, and printed copies to be furnished by and to such 
 parties and upon such terms as shall be thought fit. 
 
 OBDEB VI. 
 
 The following regulations as to costs of proceedings in 
 the Supreme Court of Judicature shall regulate such costs 
 from the commencement of the Supreme Court of Judi- 
 cature Acts, 1873 and 1875 : — 
 
 1. Solicitors shall be entitled to charge and be allowed 
 the fees set forth in the column headed " loAver scale " in 
 the schedide hereto — 
 
 In all actions for pmposes to which any of the forms of 
 indorsement of claim on writs of summons in Sections II., 
 IV., and VII. in Part II. of Appendix A., referred to in 
 the third Eule of Order III. in the schedule to the 
 Supreme Court of Judicature Act, 1875, or other similar 
 forms, are applicable (except as after provided in actions 
 for inj unctions) ; 
 
 In all causes and matters by the 34th section of the 
 Supreme Court of Judicature Act, 1873, assigned to the 
 Queen's Bench Division of the Court ; 
 
 In all causes and matters by the 34th section of the said 
 Act assigned to the Common Pleas Division of the Court ; 
 
 In all causes and matters by the 34th section of the 
 said Act assigned to the Exchequer Division of the Court ; 
 
 In all causes and matters by the 34th section of the said 
 Act assigned to the Probate, Divorce, and Admiralty 
 Division of the Court ; 
 
 And also hi causes and matters by the 34th section of 
 the said Act assigned to the Chancery Division of the 
 Court in the following cases ; (that is to say,) 
 
 1. By creditors, legatees (whether specific, pecuniary, or 
 
 residuary), devisees, (whether in trust or otherwise), 
 heirs-at-law or next-of-kin, in which the personal or 
 real or personal and real estate for or against or in 
 respect of which or for an account or administratis in 
 of Avliich the demand may be made shall lie under 
 the amount or value of 1,000?. 
 
 2. For the execution of trusts or appointment of new 
 
 trustees in Avhich the trust estate or fund shall be 
 under the amount or value of 1,000/.
 
 ADDITIONAL RULES. 395 
 
 3. For dissolution of partnership or the taking of 
 partnership or any other accounts in which the 
 partnership assets or the estate or fund shall be 
 under the amount or value of 1000/. 
 
 ■4. For foreclosure or redemption, or for enforcing any 
 charge or lien in which the mortgage whereon the 
 suit is founded, or the charge or lien sought to he 
 enforced, shall he under the amount or value of 
 1,000?. 
 
 5. And for specific performance in which the purchase 
 
 money or consideration shall be under the amount 
 or value of 1,000/. 
 
 6. In all proceedings under the Trustees Relief Acts, or 
 
 under the Trustee Acts, or under any of such Acts, 
 in which the trust estate or fund to which the 
 proceeding relates shall be under the amount or 
 value of 1,000/. 
 
 7. In all proceedings relating to the guardianship or 
 
 maintenance of infants in which the property of 
 the infant shall be under the amount of or value 
 of 1,000/. 
 
 8. In all proceedings by original special case, and in all 
 
 proceedings relating to funds carried to separate 
 accounts, and in all proceedings under any Rail- 
 way or Private Act of Parliament, or under any 
 other statutory or summary jurisdiction, and 
 generally in all other cases where the estate or 
 fund to be dealt with shall be under the amount or 
 value of 1,000/. 
 
 2. Solicitors shall be entitled to charge and be allowed 
 the fees set forth in the column headed "higher scale " in the 
 schedule hereto ; in all actions for special injunctions to 
 restrain the commission or continuance of waste, nuisances, 
 breaches of covenant, injuries to property and infringe- 
 ment of rights, easements, patents and copyrights, and 
 other similar eases where the procuring such injunction is 
 the principal relief sought to be obtained, and in all eases 
 either than those to which the U-<^ in the column headed 
 "lower scale" are hereby made applicable. 
 
 • '>. Notwithstanding these Rules, the Court or Judge
 
 396 ORDER IX COUNCIL. 
 
 may in any case direct the fees set» forth in either of the 
 said two columns to he allowed to all or either or any of 
 the parties, and as to all or any part of the costs. 
 
 4. The provisions of Order LXIII. in the first schedule 
 to the Supreme Court of Judicature Act, 1875, shall apply 
 to these Rules. 
 
 The SCHEDULE above referred to. 
 
 An Order or Rule herein referred to by number shall mean the 
 Order or Rule so numbered in the First Schedule to the Supreme 
 Court of Judicature Act, 1875. 
 
 Writs. Summonses, axo Warrants. 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. d. 
 
 Writ of summons for the com- 
 ment of any action - - -DOS 13 4 
 
 And for endorsement of claims, if 
 special ----- 
 
 Concurrent writ of summons 
 
 Renewal of a writ of summons - 
 
 Notice of a writ for service in lieu 
 of writ out of jurisdiction 
 
 Writ of inquiry - - - - 
 
 Writ of mandamus or injunction 
 
 Or per folio - 
 
 Writ of subpoena ad testificandum 
 
 duces tecum - - G 8 6 S 
 
 And if more than four folios, for 
 
 each folio beyond four - - 1 4 Oil 
 
 Writ or Avrits of subpoena ad testi- 
 ficandum for any number of 
 persons not exceeding tln*ee, and 
 the same for every additional 
 number not exceeding three - (i 8 8 
 
 
 
 5 
 
 
 
 
 
 5 
 
 
 
 
 
 G 
 
 8 
 
 
 
 G 
 
 8 
 
 
 
 6 
 
 8 
 
 
 
 6 
 
 S 
 
 
 
 4 
 
 
 
 
 
 5 
 
 
 
 1 
 
 1 
 
 
 
 1 
 
 1 
 
 
 
 
 
 10 
 
 
 
 1 
 
 1 
 
 
 
 
 
 1 
 
 4 
 
 
 
 1 
 
 4
 
 ADDITIONAL RULES. 391 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ 8. d. 
 
 Writ of distringas, pursuant to 
 
 statute 5 Vict. c. 8 - - 13 4 13 4 
 
 Writ of execution, or other writ 
 
 to enforce any judgment or order 7 10 
 And if more than four folios, for 
 
 each folio beyond four - - 1 4 14 
 Procuring a writ of execution or 
 
 notice to the sheriff, marked 
 
 with a seal of renewal - -068 G 8 
 Xotice thereof to serve on sheriff 4 5 
 Any writ not included in the 
 
 above - - - - 7 10 
 
 These fees include all endorse- 
 ments and copies, or praecipes, 
 
 for the officer sealing them, and 
 
 attendances to issue or seal, but 
 
 not the Court fees. 
 Summons to attend at Judges' 
 
 Chambers - - - 3 6 8 
 
 Or if special, at taxing officer's 
 
 discretion, not exceeding^ 
 Copy for the judge, when required 
 Or per folio ... - 
 Original summons for proceedings 
 
 in chambers in the Chancery 
 
 division 13 4 110 
 
 And attending to get same and 
 
 duplicate sealed, and at the 
 
 proper office to file duplicate 
 
 and get copies for service 
 
 stamped .... 
 
 Copy for the judge 
 ( )r per folio .... 
 Endorsing same and copies under 
 
 8th ride of the 35th of the Con- 
 solidated General Orders of the 
 
 Court of Chancery - - - 6 8 6 
 
 Services, Notices, and Demands. 
 
 Service of any Avrit, summons, 
 warrant, interrogatories , peti- 
 tion, order, notice, or demand 
 on a party who has not entered 
 an appearance, and if not autho- 
 rised to be served by post - 5 5 
 
 6 
 
 8 
 
 1 
 
 1 
 
 
 
 2 
 
 
 
 
 
 o 
 
 
 
 — 
 
 
 
 
 
 
 4 
 
 13 
 
 4 
 
 13 
 
 4 
 
 2 
 
 
 
 2 
 
 
 
 — 
 
 
 
 
 1
 
 398 ORDER IN COUNCIL. 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. d. 
 
 If served at a distance of more 
 
 than two miles from the nearest 
 
 place of business, or office of the 
 
 solicitor serving the same, for 
 
 each mile beyond such two miles 
 
 therefrom - - 1 1 
 
 "Where in consequence of the dis- 
 tance of the party to be served, 
 
 it is proper to effect such service 
 
 through an agent (other than 
 
 the London agent), for corre- 
 spondence in addition - - 7 7 
 Where more than one attendance 
 
 is necessary to effect service, or 
 
 to ground an application for sub- 
 stituted service, such further 
 
 allowance may be made as the 
 
 taxing officer shall think fit. 
 For service out of the jurisdiction 
 
 such allowance is to be made as 
 
 the taxing officer shall think fit. 
 Service where an appearance lias 
 
 been entered on the solicitor or 
 
 party - - - - 2 6 2 6 
 
 Or if authorised to be served by post 16 16 
 Where any writ, order, and notice, 
 
 or any two of them, have to be 
 
 served together, one fee only for 
 
 service is to be allowed. 
 In addition to the above fees, the 
 
 following allowances are to be 
 
 made : — 
 As to writs, if exceeding two 
 
 folios, for copy for service, per 
 
 folio beyond such two - - 4 4 
 As to summons to attend at the 
 
 Judges' Chambers, for each copy 
 
 to serve 
 
 Or per folio - 
 
 As to notices in proceedings to 
 
 wind up companies, for prepar- 
 ing or tilling up each notice to 
 
 creditors to attend and receive 
 
 debts, and to contributories to 
 
 settle list of contributories -Old 01 
 
 1 
 
 
 
 2 
 
 
 
 4 
 
 4 

 
 ADDITIONAL RULES. 399 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. d. 
 
 And for preparing or filling up 
 each notice to contributories to 
 be served with a general order 
 for a call, or an order for pay- 
 ment of a call - 1 10 
 And for drawing notice to be 
 served on contributories or 
 
 creditors of a meeting, per folio 10 10 
 For each copy of the last-men- 
 tioned notice to serve, per folio 4 4 
 For preparing or filling up for 
 service in any other cause or 
 matter, each notice to creditors 
 to prove claims, and each notice 
 that cheques may be received, 
 specifying the amount to be 
 received for principal and in- 
 terest, and costs, if any - - 1 10 
 For preparing notice to produce 
 
 or admit, and one copy - - 5 7 6 
 If special or necessarily long, such 
 allowance as the taxing officer 
 shall think proper, not exceed- 
 ing per folio - - - 8 14 
 And for each copy beyond the 
 first, such allowance as the taxing 
 master shall think proper, not 
 exceeding per folio - 
 For preparing notice of .-notion - 
 Or per folio • 
 Copy for service 
 Or per folio - 
 
 For preparing any necessary or 
 proper notice, not otherwise 
 
 provided for and demand - 1 6 16 
 
 Or if special, and necessarily 
 exceeding three folios, for pre- 
 paring same, for each folio 
 
 beyond three - - 1 1 
 
 And for each copy for service, 
 
 per folio beyond such three - 4 4 
 Copies for service of interroga- 
 tories and petitions, and of 
 orders with necessary notices 
 (if any) to accompany, per folio 4 4 
 
 1) 
 
 
 
 4 
 
 
 
 
 
 4 
 
 
 
 2 
 
 
 
 
 
 5 
 
 
 
 
 
 1 
 
 
 
 
 
 1 
 
 1) 
 
 
 
 1 
 
 
 
 
 
 1 
 
 
 
 
 — 
 
 
 
 
 
 
 4
 
 400 
 
 ORDER IN COUNCIL. 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. d. 
 
 Except as otherwise provided, the 
 
 allowances for services include 
 
 copies for service. 
 "Win 're notice of filing affidavits 
 
 is required, only one notice is 
 
 to he allowed for a set of affi- 
 davits filed, or winch ought to 
 
 he filed together. 
 In proceedings to wind up a com- 
 pany, the usual charges relating 
 
 to printing shall he allowed in 
 
 lieu of copies for service, where 
 
 the fee for copies would exceed 
 
 the charges for printing, and 
 
 amount to more than 31. 
 Where any appointment is or 
 
 ought to be adjourned, service 
 
 of a notice of the adjournment, 
 
 or next appointment, is not to 
 
 be allowed. 
 
 Appearances. 
 
 Entering any appearance - - G <S 6 8 
 
 If entered at one, time, for more 
 than one person, for every de- 
 fendant beyond the first - 1 2 
 
 If a person appearing to a writ 
 of summons to recover land 
 limits his defence by his memo- 
 randum of appearance, in addi- 
 tion to the above - - 6 8 6 8 
 
 Instructions. 
 
 To sue or defend 
 
 For statement of complaint 
 
 For statement or further statement 
 of defence - 
 
 For counter claim 
 
 For reply by plaintiff when de- 
 fendant sets up a counter claim 13 4 1 10 
 
 For reply or further reply in any 
 other case by plaintiff or other 
 person, with or without joinder 
 of issue .... 
 
 For confession of defence - 
 
 6 
 
 8 
 
 13 
 
 4 
 
 13 
 
 4 
 
 2 2 
 
 
 
 6 
 
 8 
 
 13 
 
 4 
 
 6 
 
 8 
 
 13 
 
 4 
 
 (i 
 
 G 
 
 8 
 
 13 
 
 4 
 
 
 
 G 
 
 8 
 
 13 
 
 \
 
 G 
 
 8 
 
 13 
 
 4 
 
 G 
 
 8 
 
 13 
 
 4 
 
 6 
 
 8 
 
 G 
 
 8 
 
 13 
 
 4 
 
 1 1 
 
 
 
 ADDITIONAL RULES. 401 
 
 Lower Scale. Higher Scale. 
 . . £ s. d. £ s. d. 
 
 lor joinder of issue without other 
 
 matter and for demurrer - 6 8 13 4 
 
 For special case, special petition, 
 any other pleading (not being a 
 summons), and interrogatories 
 for examination of a party or 
 
 witness 
 
 To amend any pleading - . - 
 For affidavit in answer to inter- 
 rogatories, and other special 
 affidavits - 
 To appeal .... 
 
 To add parties by order of Court 
 
 or judge - - - 6 8 13 4 
 
 For counsel to advise on evidence 
 when the evidence in chief is 
 
 to be taken orally - - - G 8 G 8 
 Or not to exceed - - - 13 4 110 
 For counsel to make any applica- 
 tion to a Court or judge where 
 
 no other brief - - G 8 10 
 
 For brief on motion for special 
 
 injunction - - 13 4 110 
 
 For brief on hearing or trial of 
 action upon notice of trial 
 given, whether such trial be 
 before a judge, with or without 
 a jury or, before an official or 
 special referee, or on trial of an 
 issue of fact before a judge, 
 commissioner, or referee, or on 
 
 assessment of damages - - 1 1 2 2 
 For such brief, and for brief on 
 the hearing of an appeal when 
 witnesses are to be examined or 
 cross-examined, such fee may 
 be allowed as the taxing officer 
 shall think fit, having regard to 
 all the circumstances of the case, 
 and to other allowances, if 
 any, for attendances on wit- 
 nesses and procuring evidence. 
 The fees for instructions for brief 
 are not to apply to a hearing 
 on further consideration.
 
 Lower Scale. 
 £ s. d. 
 10 
 1 
 5 
 1 
 
 Higher Scale. 
 £ s. d. 
 1 1 
 1 
 10 
 1 
 
 5 
 1 
 
 
 
 
 1 1 
 1 
 
 
 
 5 
 
 
 
 10 
 
 
 
 
 
 1 
 
 
 
 1 
 
 
 
 402 order in council. 
 
 Drawing Pleadings and other Documents. 
 
 Statement of claim 
 
 Or per folio 
 
 Statement of defence 
 
 Or per folio ... 
 
 Statement of defence and counter 
 
 claim - . - - 
 Or per folio 
 Eeply, with or without joinder 
 
 of issue, confession of defence, 
 
 joinder of issue without other 
 
 matter, demurrer, and any other 
 
 pleading (not being a petition 
 
 or summons) and amendments 
 
 of any pleading - 
 ( >r per folio - 
 Particulars, breaches, and objec- 
 tions, when required, and one 
 
 copy to deliver - - - 5 6 8 
 Or such aim nint as the taxing 
 
 officer shall think fit, not ex- 
 ceeding per folio - -008 014 
 If more than one copy to be 
 
 delivered, for each other copy 
 
 per folio - 4 4 
 
 Special case, whether original or in 
 
 an action, affidavits in answer 
 
 to interrogatories and other spe- 
 cial affidavits, special petitions, 
 
 and interrogatories, per folio - 1 10 
 Brief, on trial or hearing of cause, 
 
 issue of fact, assessment of 
 
 damages, examination of wit- 
 nesses, demurrer, special case 
 
 and petition before a Court or 
 
 judge, sheriff, commissioner, 
 
 referee, examiner, or officer of 
 
 the court, when necessary and 
 
 proper in addition to pleadings, 
 
 including necessary and proper 
 
 observations, per folio 
 Brief on application to add parties 
 Or per folio - 
 Brief on further consideration, per 
 
 sheet of 10 folios - - 6 8 6 8 
 
 
 
 1 
 
 1 
 
 
 
 
 
 6 8 
 
 10 
 
 
 
 (1 
 
 1 
 
 1 
 

 
 RULES OF THE SUPREME COURT (COSTS). 
 
 20. The Schedule to " The Rules of the Supreme 
 Court (Costs) " is hereby altered in the following particu- 
 lars : — 
 
 The allowance for printing a document not exceeding 
 fcen folios shall be 10s., and, in addition, for every twenty 
 beyond the first twenty copies of any document not ex- 
 ceeding twenty-four folios, 2s.
 
 ADDITIONAL RULES. 403 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. d. 
 
 Accounts, statements, and other 
 documents for the Judges' 
 Chambers, when required, and 
 fair copy to leave, per folio - 8 1 4 
 
 Advertisements to be signed by 
 judge's clerk, including attend- 
 ance therefor - 6 8 13 4 
 
 Bill of costs for taxation, in- 
 cluding copy for the taxing 
 officer - ' - - *"- 8 8 
 
 Copies* 
 
 Of pleadings, briefs, and other 
 
 documents where no other pro; 
 
 vision is made, at per folio - 4 1 
 Where, pursuant to Rules of 
 
 Court any pleading, special 
 
 case or petition of right, or 
 
 evidence is printed, the soli- 
 citor of the party printing shall 
 
 be allowed for a copy for the 
 
 printer (except when made by 
 
 the officer of the court), at per 
 
 folio 4 4 
 
 And for examining the proof print, 
 
 at per folio - - 2 2 
 
 And for printing the amount 
 
 actually and properly paid to 
 
 the printer, not exceeding per 
 
 folio - - - - 1 10 
 
 Ai id in addition for every 20 
 
 beyond the first 20 copies, at 
 
 per folio - 1 1 
 
 And where any part shall properly 
 
 be printed in a foreign lan- 
 guage, or as a fac-simile, or in 
 
 any unusual or special manner, 
 
 in' where any alteration in the 
 
 document being printed becomes 
 
 necessary after the first, proof, 
 
 such further allowance shall be 
 
 made as the taxing officer shall 
 
 think reasonable. 
 These allowances arc to include all 
 
 attendances on the printer.
 
 •104 ORDER IN COUNCIL. 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. d. 
 
 The solicitor for a party entitled 
 to take printed copies shall he 
 allowed, for such numher of 
 copies as he shall necessarily or 
 properly take, the amount he 
 shall pay therefor. 
 In addition to the, allowances f< »r 
 printing and taking printed 
 copies, there shall be allowed 
 for such printed copies as may 
 he necessary or proper for the 
 following hut no other purposes 
 (videlicet) : — 
 Of any pleading for delivery to 
 the opposite party, or filing in 
 default of appearance 
 Of any special case for filing 
 Of any petition of right for pre- 
 sentation, if presented in print, 
 and for the solicitor of the 
 Treasury, and service on any 
 party - - 
 Of any pleading, special case, or 
 petition of right, for the use of 
 the Court or judge - 
 Of any affidavit to be sworn to in 
 
 print - 
 And of any pleading, special case, 
 petition of right, or evidence 
 for the use of counsel in Court, 
 and in country agency causes 
 when proper to be sent as a close 
 copy for the use of the country 
 
 solicitor, at per folio - 2 3 
 
 Such additional allowances for 
 printed copies for the Court or 
 judge, and for counsel, are not 
 to be made where written copies 
 have been made previously to 
 printing, and are not in any 
 case to be made more than 
 once in the progress of the cause. 
 Close copies, whether printed or 
 written, are not to be, allowed 
 as of course, but the allowance
 
 ADDITIONAL HULKS. t05 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. d. 
 
 is to depend on the propriety of 
 making or sending the copies, 
 which in each case is to be 
 shown and considered by the 
 taxing officer. 
 
 Inserting amendments in a printed 
 copy of any pleading, special 
 case, or petition of right, when 
 not reprinted - 
 
 Or per folio 
 
 - 
 
 - 
 
 1 
 
 
 
 
 
 5 
 
 
 
 RUSA 
 
 - 
 
 LS. 
 
 
 
 4 
 
 
 
 
 
 4 
 
 Of statement of complaint, state- 
 ment of defence, reply, joinder 
 of issue, demurrer, and other 
 pleading (not being a petition 
 or summons) by the solicitor of 
 the party to whom the same 
 are delivered - - - G 8 
 
 Or per folio .... — 
 
 Of amendment of any such plead- 
 ing in writing - -068 
 
 Or per folio ... - — 
 
 If same reprinted - - G 8 
 
 Or per folio of amendment - 
 
 Of interrogatories to be answered 
 
 by a party by his solicitor - G 8 
 
 Or per folio - - — 
 
 Of special case by the solicitor of 
 any party except the one by 
 whom it is prepared - - G S 
 
 Or per folio .... — 
 
 Of copy order to add parties, 
 notice of defendant's claim 
 against any person not a party 
 to the action under Older XVI., 
 Rule 18, and of defendant's 
 statement of defence and coun- 
 ter claim served on a person 
 not a party under Order XXII. , 
 Rule 6, by the solicitor of the 
 party served therewith, and in 
 these, several eases the perusal 
 of the plaintiff's statement of 
 
 1) 
 
 13 
 
 4 
 
 
 
 
 
 4 
 
 
 
 6 
 
 8 
 
 
 
 
 
 4 
 
 
 
 13 
 
 4 
 
 
 
 
 
 4 
 
 1) 
 
 13 
 
 4 
 
 
 
 
 
 4 
 
 D 
 
 13 
 
 4 
 
 
 
 
 
 4
 
 106 ORDER IN COUNCIL. 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. d. 
 
 complaint is also to be allowed 
 
 unless the solicitor has been 
 
 previously allowed such perusal 6 8 13 4 
 Or per folio - - — 4 
 
 Of notice to produce and notice ■ 
 
 to admit by the solicitor of the 
 
 party served - G 8 13 4 
 
 Of affidavit in answer to interro- 
 gatories by the solicitor of the 
 
 party interrogating, and of other 
 
 special affidavits by the solicitor 
 
 of the party against whom the 
 
 same can be read, per folio - 4 4 
 
 Attendances. 
 
 To obtain consent of next friend 
 
 to sue in his name - - -0 8 0134 
 
 To deliver or file any pleading (not 
 being a petition or summons) 
 and a special case - - -034 0G8 
 
 To inspect, or produce for inspec- 
 tion, documents pursuant to a 
 notice to admit 
 
 Or per hour - 
 
 To examine and sign admissions - 
 
 To inspect, or produce for inspec- 
 tion, documents referred to in 
 any pleading or affidavit, pur- 
 suant to notice under Order 
 XXXI. , Rule 14 - 
 
 Or per hour 
 
 To obtain or give any necessary or 
 
 proper consent - - - G 8 6 8 
 
 To obtain an appointment to exa- 
 mine witnesses - - - 6 8 6 8 
 
 On examination of witnesses 
 before any examiner, commis- 
 sioner, officer, or other person - 013 4 013 4 
 
 Or according to circumstances, not 
 
 to exceed - - - - 2 *2 2 2 
 
 Or if without counsel, not to 
 
 exceed ----- — 330 
 
 On deponents being sworn, or by 
 a solicitor or his clerk to be 
 
 
 
 6 
 
 8 
 
 13 
 
 4 
 
 
 
 G 
 
 8 
 
 6 
 
 8 
 
 
 
 6 
 
 8 
 
 13 
 
 4 
 
 6 8 
 
 6 
 
 8 
 
 6 8 
 
 G 
 
 8
 
 ADDITIONAL KULE.s. 407 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. d. 
 
 sworn, to an affidavit in answer 
 to interrogatories or other 
 
 special affidavit - - - 8 G 8 
 On a summons at Judges' Chambers 6 8 G S 
 Or according to circumstances not 
 
 to exceed - - - - 1 1 110 
 Tn the Chancery division, all 
 allowances for attending at the 
 Judges' Chambers are to be by 
 the judge or chief clerk as here- 
 tofore. 
 To file chief clerks' and taxing 
 masters' certificates, and get 
 
 copy marked as an office copy - G 8 6 8 
 On counsel with brief or other 
 papers — 
 
 If counsel's fee one guinea - 3 4 G 8 
 If more and under five 
 
 guineas - - - - G 8 G 8 
 If five guineas and under 20 
 
 guineas - 
 If 20 guineas 
 If 40 guineas or more - 
 On consultation or conference 
 
 with counsel - - - - 13 4 13 4 
 To enter or set down action, 
 demurrer, special case, or appeal, 
 
 for hearing or trial - - -0G8 0G8 
 In Court on motion of course and 
 
 on counsel and for order - -0 100 0134 
 To present petition for order of 
 
 course and for order - -068 0134 
 
 In Court on every special motion, 
 
 each day .... 
 
 On same when heard each day - 
 
 Or according to circumstances 
 
 On demurrer, special case, or 
 
 special petition, or application 
 
 adjourned from the Judge's 
 
 Chambers, when in the special 
 
 paper for the day, or likely to 
 
 be heard - - - 6 8 10 
 
 On same when heard - - 1 3 4 110 
 
 Or according to circumstances, 
 
 not to exceed - -110 2 2 
 
 6 
 
 8 
 
 13 
 
 4 
 
 13 
 
 4 
 
 1 1 
 
 
 
 — 
 
 
 2 2 
 
 
 
 G 
 
 8 
 
 13 
 
 4 
 
 13 
 
 4 
 
 13 
 
 4 
 
 1 1 
 
 
 
 2 2 
 

 
 10 
 
 
 
 10 
 
 (I 
 
 13 
 
 4 
 
 1 1 
 
 
 
 2 2 
 
 
 
 2 2 
 
 
 
 108 ORDER IN COUNCIL. 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. </. 
 
 On hearing or trial of any cause. 
 or matter, or issue of fact, in 
 London or Middlesex, or the 
 town where the solicitor resides 
 or carries on business, whether 
 before a judge with or without 
 a jury, or commissioner, or re- 
 feree, or on assessment of dam- 
 ages, when in the paper - 
 
 "When heard or tried - 
 
 Or according to circumstances 
 
 "When not in London or Middle- 
 sex, nor iu the town where the 
 solicitor resides or carries on 
 business, for each day (except 
 Sundays) lie is necessarily ab- 
 sent 2 2 3 3 
 
 And expenses (besides actual rea- 
 sonable travelling expenses) 
 each day, including Sundays 1 1 110 
 
 Or if the solicitor has to attend on 
 more than one trial or assess- 
 ment at the same time and 
 place, in each case - - -110 111G 
 
 The expenses in such case to be 
 rateably divided. 
 
 To hear judgment when same ad- 
 journed G 8 13 4 
 
 Or according to circumstances - 13 4 110 
 
 To deliver papers (when required) 
 for the use of a judge prior to 
 a hearing - - - - 6 8 G 8 
 
 If more than one judge - -0134 0134 
 
 On taxation of a bill of costs - 6 8 6 8 
 
 Or according to circumstances, not 
 
 to exceed - - - - 2 2 2 2 
 
 In causes for purposes within the 
 cognizance of the Court of Chan- 
 cery before the Act passed, 
 such further fee as the taxing 
 officer may think fit, not ex- 
 ceeding the allowances hereto- 
 fore made. 
 
 To obtain or give an undertaking 
 to appear ... - 
 
 6 S G 8
 
 ADDITIONAL RULES. 100 
 
 Lower Scale. Higher Scale. 
 £ 8. d. £ s. d. 
 
 To present a special petition, and 
 
 for same answered - - -0Gb 0G8 
 On printer to insert advertisement 
 
 in Gazette - - - G 8 G 8 
 
 On printer to insert same in other 
 
 papers, each printer - - — 6 8 
 
 ( >r every two - - - G 8 — 
 
 ( >n registrar to certify that a 
 
 cause set down is settled, or for 
 
 any reason not to come into the 
 
 paper for hearing - - 6 8 G 8 
 
 For an order drawn up by chief 
 
 clerk, and to get same entered - G 8 6 8 
 On counsel to procure certificate 
 
 that cause proper to be heard 
 
 as a short cause, and on regis- 
 trar to mark same - - 6 8 G 8 
 To mark conveyancing counsel or 
 
 taxing master - - G 8 G 8 
 
 For preparing and drawing up an 
 
 order made at chambers in pro- 
 ceedings to wind-up a company 
 
 and attending for same, and to 
 
 get same entered - - 13 4 13 4 
 
 And for engrossing every such 
 
 order, per folio - 4 4 
 
 Note. — An order of course 
 
 means an order made on an ex 
 
 /in rfc application, and to which 
 
 a party is entitled as of right on 
 
 his own statement and at his 
 
 own risk. 
 
 Oaths and Exhibits. 
 
 Commissioners to take oaths or 
 affidavits. For every oath, de- 
 claration, affirmation, or attes- 
 tation upon honour in London 
 or the country - 1 G 
 
 The solicitor for preparing each 
 
 exhibit in town or country - 1 10 
 
 1 he commissioner for marking 
 each exhibit - - - - 1 10 
 
 T
 
 •110 ORDER IN COUNCIL. 
 
 Term Fees. 
 
 Lower Scale. Higher Scale. 
 £ s. d. £ s. d. 
 
 For every term commencing on 
 
 the day the sittings in London 
 
 and Middlesex of the High 
 
 Court of Justice commence, 
 
 and terminating on the day pre- 
 ceding the next such sittings, 
 
 in which a proceeding in the 
 
 cause or matter, by or affecting 
 
 the party, other than the 
 
 issuing and serving the writ of 
 
 summons, shall take place - 15 15 (| 
 And further, in country agency 
 
 causes or matters, for letters .060 C <> 
 Where no proceeding in the cause 
 
 or matter is taken which carrii - 
 
 a term fee, a charge for letters 
 
 may be allowed, if the circum- 
 stances require it. 
 In addition to the above an allow- 
 ance is to be made for the 
 
 necessary expense of postaj; 
 
 carriage and transmission of 
 
 documents. 
 
 SPECIAL ALLOWANCES AND GENERAL 
 PEOYISIONS. 
 
 1. As to writs of summons requiring special indi 
 ment, original special cases, pleadings and affidavits in 
 answer to interrogatories, and otherspecial affidavits, when 
 the higher scale is applicable, the taxing officer may. in 
 lieu of the allowances for instructions and preparu 
 drawing, make such allowance for work, labour, and ex- 
 penses in or about the preparation of uch documents as in 
 bis discretion he may think proper.
 
 ADDITIONAL RULES. ! 1 1 
 
 2. As to drawing any pleading or other document, the 
 fees allowed shall include any copy made for the use of 
 the solicitor, agent, or client, or for counsel to settle 
 
 3. As to instructions to sue or defend, when the higher 
 scale is applicable, if in consequence of the instructions 
 being taken separately from more than three persons (not 
 being co-partners) the taxing officer shall consider the fee 
 above provided inadequate, he may make such further 
 allowance as he shall in his discretion consider reasonable. 
 
 4. As to affidavits, when there are several deponents to 
 be sworn, or it is necessary for the purpose of an affidavit 
 being sworn to go to a distance, or to employ an agent, such 
 
 reasonable allowance may lie made as the taxing officer in 
 his discretion may think fit. 
 
 5. The allowances for instructions and drawing an affi- 
 davit in answer to interrogatories and other special affida- 
 vits, and attending the deponent to be sworn, include all 
 attendances on the deponent to settle and read over. 
 
 G. As to delivery of pleadings, services, and notices, the 
 fees are not to be allowed when the same solicitor is for 
 both parties, unless it be necessary for the purpose of 
 making an affidavit of service. 
 
 7. As to perusals the fees are not to apply where the 
 same solicitor is for both parties. 
 
 8. As to evidence, such just and reasonable charges and 
 expenses as appear to have been properly incurred in pro- 
 curing evidence, and bhe attendance of witnesses, are to be 
 allowed. 
 
 9. As to agency correspondence, in country agency 
 causes and matters, if it be shown to the satisfaction of 
 I he taxing officer that such correspondence has been special 
 and extensire, he is to be at liberty to make such special 
 allowance in respeel thereof as in In's discretion he may 
 think propi 
 
 10. As to attendances at the Judges' Chambers, where, 
 foom the Length of the attendance, or from the difficulty 
 oi the case, the judge or master shall think the highest of 
 the air.- :': an insufficient remuneration Eor the services 
 performed, or where the preparation of the case or matter 
 
 T 9.
 
 il- ORDER IN COUNCIL. 
 
 to lay it before the judge or master in chambers, or on a 
 summons, shall have required skill and labour for which 
 no fee has been allowed, the judge or master may allow 
 such fee in lieu of the fee of 11. Is. above provided, 
 not exceeding 2/. 2s., or where the higher scale is applic- 
 able 37. 3s., or in proceedings to wind upacompany 57. 5s., 
 as in his discretion he may think tit ; and where the pre- 
 paration of the case or matter to lay it before a judge at 
 chambers on a summons shall have required and received 
 from the solicitor such extraordinary skill and labour as 
 materially to conduce to the satisfactory and speedy dis- 
 posal of the business, and therefore shall appear to the 
 judge to deserve higher remuneration than the ordinary 
 fees, the judge may allow to the solicitor, by a memo- 
 randum in writing expressly made for that purpose and 
 signed by the judge, specifying distinctly the grounds of 
 such allowance, such fee. not exceeding 10 guineas, as in 
 his discretion he may think ht, instead of the above fees 
 of 2/. 2s., 3/. 3s., and 57. 5s. 
 
 11. As to attendances at the Judges' Chambers, where 
 by reason of the non-attendance of any party (and it is not 
 considered expedient to proceed exparte), or when- by 
 reason of the neglect of any party in not being prepared 
 with any proper evidence, account, or other proceeding, tin 1 
 attendance is adjourned without any useful progress being 
 made, the judge may order such an amount of costs (if 
 any) as he shall think reasonable to be paid to the party 
 attending by the party so absent or neglectful, or by his 
 solicitor personally ; and the party so absent or neglectful 
 is not to be allowed any fee as against any other party, or 
 any estate or fund in Avhich any other party is interested. 
 
 12. A folio is to comprise 72 words, every figure com- 
 prised in a column being counted as one word. 
 
 13. Such costs of procuring the advice of counsel on 
 the pleadings, evidence, and proceedings in any cause or 
 matter as the taxing officer shall in his discretion think 
 just and reasonable, and of procuring counsel to settle 
 such pleadings and special affidavits as the taxing officer 
 shall in his discretion flunk proper to be settled by coun- 
 sel, are to be allowed; but as to affidavits a separate fee 
 is not to be allowed for each affidavit, but one fee for all 
 the affidavits proper to be so settled, which are or ought 
 to be filed at the same time.
 
 ADDITIONAL RULES. 413 
 
 14. As to counsel attending at Judges' Chambers, no 
 costs thereof shall in any case be allowed, unless the judge 
 certifies it to be a proper case for counsel to attend. 
 
 15. As to inspection of documents under Order XXXI., 
 Rule 14, no allowance is to be made for any notice or 
 inspection, unless it is shown to the satisfaction of the 
 taxing officer that there were good and sufficient reasons 
 for giving such notice and making such inspection. 
 
 16. As to taking copies of documents in possession of 
 another party, or extracts therefrom, under Rules of Court 
 or any special order, the party entitled to take the copy 
 or extract is to pay the solicitor of the party producing 
 the document for such copy or extract as he may, by 
 writing, require, at the rate of 4d per folio ; and if the 
 solicitor of the party producing the document refuses or 
 neglects to supply the same, the solicitor requiring the 
 copy or extract is to be at liberty to make it, and the 
 solicitor for the party producing is not to be entitled to 
 any fee in respect there* if. 
 
 17. Where a petition in any cause or matter assigned to 
 the Chancery division is served, and notice is given to the 
 party served that in case of his appearance in Court his 
 costs will be objected to, and accompanied by a tender of 
 costs for perusing the same, the amount to be tendered 
 shall be 21. 2s. The party making such payment shall be 
 allowed the same in his costs, provided such service was 
 proper, but not otherwise ; but this order is without pre- 
 judice to the rights of either party to costs, or to object to 
 costs where no such tender is made, or where the Court or 
 judge shall consider the party entitled, notwithstanding 
 such notice, or tender, to appear in Court. In any oilier 
 case in which a solicitor of a party served necessarily or 
 properly peruses any such petition without appearing 
 thereon he is to lie allowed a fee not exceeding 21. 2s. 
 
 18. The Courl or judge may, at the hearing of any 
 cause or matter, or upon any application or procedure in 
 any cause or matter in Court or at chambers, and whether 
 the same is objected to or not, direct the costs of any 
 pleading, affidavit, evidence, notice to cross examine 
 witnesses, account, statement, or other proceeding, or any 
 pari thereof, which is improper, unnecessary, or contains 
 unnecessary matter, or is of unnecessary length, to lie 
 disallowed, or may direct the taxing officer to look into the
 
 414 ORDER IN COUNCIL. 
 
 and to disallow the a ists thereof, or of such part ther< ■ >f 
 as he shall find to be improper, unnecessary, or to contain 
 unnecessary matter, or to be of unnecessary length ; and 
 in such case the party whose costs are so disallowed shall 
 pay the costs occasioned to the other parties by such 
 unnecessary proceeding, matter, or length ; and in any 
 case where such question shall not have been raised 
 before and dealt with by the Court or judge, the 
 taxing officer may look into the game (and. as to 
 evidence, although the same may be entered as read 
 in any decree or order) for the purpose aforesaid, and 
 thereupon the same consequences shall ensue as if he had 
 been specially directed to do so. 
 
 19. hi any case in which, under the preceding rule 
 No. 18, or any other rule of Court, or by the order or 
 direction of a Court or judge, or otherwise, a party en- 
 titled to receive costs is liable to pay costs to any other 
 party, the taxing officer may tax the costs such party is 
 so liable to pay. and may adjust the same by w 
 deduction or se1 off, or may. if he shall think tit, delay 
 the allowance of the costs such party is entitled to receive 
 until he has paid or tendered the costs he is liable to pay : 
 cer may allow or certify the costs to be paid, 
 and the same may be recovered by the party entitled 
 thereto in the same manner as costs ordered to be paid 
 may be recovered. 
 
 l'o. Where in the Chancery division any question as 
 to any costs is under the preceding rule 18 dealt with at 
 chambers, the chief clerk is to make a note thereof, and 
 state the same on his allowance of the fees for attendances 
 at chambers, or otherwise as may be convenient fox the 
 information of the taxing officer. 
 
 21. Where any parly appears upon any application 
 or proceeding in Court or at chambers, in which he is 
 nol interested, or upon which, according to the pi 
 
 of the Court, he. ougbl not to attend, he is not to he 
 allowed any costs of such appearance unless the ( !ourt or 
 judge shall expressly direct such costs to he allowed. 
 
 22. As to applications to extend the time for taking any 
 proceeding limited by Rules of Court (subject to any 
 special order as to the costs of and occasioned by any such 
 
 application), the costs of one application are, without 
 special order, to be allowed as costs in the cause or matter.
 
 ADDITIONAL RULES. 415 
 
 hut (unless specially ordered) no costs are to be allowed of 
 any further application to the party making the same as 
 against any other party, or any estate or fund in which 
 any other party is interested. 
 
 23. The taxing officers of the Supreme Court, or of any 
 division thereof, shall, for the purpose of any proceeding 
 before them, have power and authority to administer oaths, 
 1 1 ml shall, in relation to the taxation of costs, perform all 
 such duties as have heretofore been performed by any of 
 the masters, taxing masters, registrars, or other officers of any 
 of the courts whose jurisdiction is by the Act transferred to 
 the High Court of Justice or Court of Appeal, and shall, 
 in respect thereof, have such powers and authorities as 
 previous to the commencement of the Act were vested in 
 any of such officers, including examining Avitnesses, direct- 
 ing production of books, papers, and documents, making 
 separate certificates or allocaturs, requiring any party to be 
 represented by a separate solicitor, and to direct and adopt 
 all such other proceedings as could be directedand adopted 
 by any such officer on references for the taxation of costs, 
 and taking accounts of what is due in respect of such costs, 
 and such other accounts connected therewith as may be 
 directed by the Court or a judge. 
 
 24. The. taxing officer shall have authority to arrange 
 and direct what parties are to attend before him on the 
 taxation of costs to be borne by a fund or estate, and to 
 disallow the costs of any party whose attendance such 
 officer shall in his discretion consider unnecessary in con- 
 sequence of the interest of such party in such fund or 
 estate being small or remote, or sufficiently protected by 
 "I her parties interested. 
 
 25. When any party entitled to costs refuses or neglects 
 bo bring in his costs for taxation, or to procure the same to 
 he taxed, and thereby prejudices any oilier parly, the tax- 
 ing officer shall he at, liberty to certify the costs of the other 
 parties, and certify such refusal or neglect, or may allow 
 such party refusing or neglecting a, nominal or other sum 
 lor such costs, so as to prevent any other party being pre- 
 judiced by such refusal or neglect. 
 
 26. As to costs to he paid or borne I iy a iinther party, no 
 ire to be allowed which do not appear to the taxing 
 
 officer to have been necessary or proper for the attainment 
 of justice or defending the rights 01 the party, or Which
 
 -116 ORDER IX COUNCIL. 
 
 appear to the taxing officer to have heen incurred through 
 over-caution, negligence, or mistake, or merely at the desire 
 of the party. 
 
 27. As to any work and labour properly performed and 
 not herein provided for, and in respect of which fees have 
 heretofore heen alh rwed, the same or similar fees are. to he 
 allowed for such work and labour as have heretofore heen 
 allowed. 
 
 28. The rules, orders, and practice of any Court whose 
 jurisdiction is transferred to the High Court of Justice or 
 Court of Appeal, relating to costs, and the allowance of 
 the fees of solicitors and attorneys, and the taxation of 
 costs, existing prior to the commencement of the Act, 
 shall, in so far as they arc not inconsistent with the Act, 
 and the Rules of Court in pursuance thereof, remain in 
 force and be applicable to costs of the same or analogous 
 proceedings, and to the allowance of the fees of solicitors 
 of the Supreme Courl and the taxation of costs in the 
 High Court of Justice and Court of Appeal. 
 
 29. As to all fees or allowances which are discretionary, 
 the same are, unless otherwise provided, to be allowed al 
 the discretion of the taxing officer, who, in the exercise oi 
 such discretion, is to take into consideration the other fees 
 and allowances to the solicitor and counsel, if any. in 
 respect of the work to which any such allowance applies, 
 the nature and importance of the, cause or matter, the 
 amount involved, the interest of the parties, the fund or 
 persons to bear the costs, the general conduct and costs of 
 the proceedings, and all other circumstances. 
 
 30. Any party who may be dissatisfied with the allow- 
 ance or disallowance by the taxing officer, in any hill of 
 costs taxed by him, of the whole or any part of any item 
 or items, may, at any time before the certificate or allo- 
 catur is signed, deliver to the other party interested therein. 
 and carry in before the taxing officer, an objection in 
 writing to such allowance or disallowance, specifying 
 therein by a list, in a short and concise form, the item or 
 items, or parts or part thereof, objected to, and may there- 
 upon apply to the taxing officer to review the taxation in 
 respect of the same. 
 
 31. Upon such application the taxing officer shall re- 
 consider and review his taxation upon such objections, and
 
 ADDITIONAL RULES. 417 
 
 he may, if he shall think fit, receive further evidence in 
 respect thereof, and, if- so required hy either party, he shall 
 state either in his certificate of taxation or allocatur, or hy 
 reference to such objection, the grounds and reasons of his 
 decision thereon, and any special facts or circumstances 
 relating thereto. 
 
 32. Any party who may be dissatisfied with the certi- 
 ficate or allocatur of the taxing officer, as to any item or 
 part of an item Avhich may have been objected to as afore- 
 said, may apply to a judge at chambers for an order to 
 review the taxation as to the same item or part of an item, 
 ami the judge may thereupon make such order as to the 
 judge may seem just ; but the certificate or allocatur of 
 the taxing officer shall be final and conclusive as to all 
 matters which shall not have been objected to in manner 
 aforesaid. 
 
 33. Such application shall he heard and determined by 
 the judge upon the evidence which shall have been brought 
 in hefore the taxing officer, and no further evidence shall 
 he received upon the hearing thereof, unless the judge 
 shall otherwise direct. 
 
 34. When a writ of summons for the commencement of 
 an action shall lie. issued from a district, and when an 
 action proceeds in a district registry, all fees and allowances, 
 and rules and directions relating to costs, which would be 
 applicable to such proceeding if the writ of summons were 
 issued in London, and if the action proceeded in London, 
 shall apply to such writ of summons issued from and 
 other proceedings in the district registry. 
 
 CAIBNS, C. JOHN MELLOE. 
 
 A. K COCKBUEN. EOBT. LUSH. 
 
 G. JLSSEL. WM. BALIOL BRETT. 
 
 COLERIDGE A. CLEASBY. 
 
 KITZROY KELLY. W. K. GEOYE. 
 
 W. M. JAMES. 4. R. QTTAIN. 
 
 GEOEGE MELLISH. JAMES 1IA.WTA. 
 
 EtICHD. MALINS. C. E. POLLOCK. 
 
 JAMES BACON. W. V. FIELD. 
 
 CHAELES HALL. 4. YV. JIUI>1)LKST<L\. 
 
 G. BEAMWELL. NATHANL. LINDLEY. 
 COLIN BLACKBTJEN. 
 
 i ."»
 
 4nl£ ORDER IN COUNCIL. 
 
 AT THE COURT AT OSBORNE HOUSE, 
 ISLE OF WIGHT. 
 
 TJie VII l> day of August, 1875. 
 
 Present, 
 
 THE QUEEN'S MOST EXCELLENT MAJESTY 
 IX COUNCIL, 
 
 Whereas by "The Supreme Court of Judicature Act, 
 1873," it is enacted thai it shall be lawful for Her 
 Majesty, by Order in Council, from time to time to direct 
 thai there shall be District Registrars in such places as 
 shall be in such order mentioned for districts to be thereby 
 defined, from which writs of summons for the commence- 
 ment of actions in the High Court of Justice may be 
 issued, and in which such proceedings may be taken and 
 recorded as are herein-after mentioned ; and Her Majesty 
 may thereby appoint that any Registrar of any County 
 Court, or any Registrar or Prothonotary or District Pro- 
 thonotary of any local Courl whose jurisdiction is hereby 
 transferred to the said High Court of Justice, or from 
 which an appeal is hereby given to the said Court of 
 Appeal, or any person who, having been a District Regis- 
 trar of the Court of Probate, or of the Admiralty ( lourt, 
 shall under this Act become and be a District Registrar of 
 the said High Court of Justice, or who shall hereafter be 
 appointed such District Registrar, shall and may be a 
 District Registrar of the said Eigh Court for the purpose 
 of issuing such writs as aforesaid, and having such pro- 
 ceedings taken before him as are herein-after mentioned : 
 
 And whereas by "The Supreme Court of Judicature 
 Act, 1875," it is provided that where any such Order has 
 been made, two persons may, if required, be appointed to
 
 DISTRICT REGISTRIES. 419 
 
 perform the duties of District Registrar in any district 
 named in the Order, and such persons shall be deemed to 
 be joint District Registrars, and shall perform the said 
 duties in such manner as may from time to time be directed 
 by the said < )rder, or any Order in Council amending the 
 same : 
 
 And whereas it has seemed fit to Her Majesty, by and 
 with the advice of Her Privy Council, that there should 
 be District Registrars in certain places in England : Now, 
 therefore, Her Majesty, by and with the advice aforesaid, 
 is pleased to order, and it is hereby ordered, as follows: — 
 
 That there shall be District Registrars in the places of 
 Liverpool, Manchester, and Preston, and the District 
 Registrar at Liverpool of the High Court of Admiralty, 
 and the District Prothonotary at Liverpool of the Court 
 of ( lornmon Pleas at Lancaster shall be and are hereby ap- 
 ]>< intedtheDistrict Registrars in Liverpool ; and the District 
 Prothonotary at Manchester of the said Court of Common 
 1 'has shall be and is hereby appointed the District Registrar 
 in Manchester ; and the District Prothonotary at Preston of 
 the said Court of Common Pleas shall be and is hereby 
 appointed the District Registrar at Preston; and that the 
 district for each such place shall be the district now 
 assigned to each such District Prothonotary, under the 
 provisions and authority of " The Common Pleas at Lan- 
 caster Amendment Act, 1869." 
 
 That there shall be a District Registrar in Durham, and 
 that the District Prothonotary of the Court of Pleas at 
 Durham shall be and is hereby appointed the District 
 Registrar in Durham ; and that the district shall be the 
 district, for the time being, of the County Court holdenat 
 I Mirham. 
 
 That, in the places mentioned in the Schedule annexed, 
 there shall he District Registrars, and that the Registrar 
 of the County Court held in any such place shall be and 
 is hereby appointed the District Registrar in such place, 
 and that the district for each such place shall be the dis- 
 trict, for the time being, of the County Court holden at 
 sinh place. 
 
 C. L. PEEL.
 
 420 
 
 ORDER IX COUNCIL. 
 
 SCHEDULE. 
 
 Bangor. 
 
 Barnsley. 
 
 Barnstaple. 
 
 Bedford. 
 
 Birkenhead. 
 
 Birmingham. 
 
 Boston. 
 
 Bradford. 
 
 Bridgewater. 
 
 Brighton. 
 
 Bristol. 
 
 Bury St. Edmund-. 
 
 Cambridge. 
 
 ( lardiff. 
 
 Carlisle. 
 
 Carmarthen. 
 
 Cheltenham. 
 
 Chester. 
 
 Colchester. 
 
 Derby. 
 
 Dewsbury. 
 
 Dover. 
 
 Dorchester. 
 
 Dudley. 
 
 East Stonehouse. 
 
 Exeter. 
 
 ( rloucester. 
 
 Great Grim shy. 
 
 ( Mvat Yarmouth. 
 
 Halifax. 
 
 Hanley. 
 
 Hartlepool. 
 
 Hereford. 
 
 Hudders field. 
 
 Ipswich. 
 
 Kingston-on-Hull. 
 
 Kings Lynn. 
 
 Leeds. 
 
 Leicester. 
 
 Lincoln. 
 
 Li westoft. 
 
 Maidstone. 
 
 Newcastle-upon-Tyne. 
 
 Newport, Monmouth. 
 
 Newport, Lsle of Wight. 
 
 Newtown. 
 
 Northampton. 
 
 Norwich. 
 
 Nottingham. 
 
 Oxford. 
 
 Pembroke Docks. 
 
 Peterborough. 
 
 Poole. 
 
 1 •( iilsmouth. 
 
 Ramsgate. 
 
 Rochester." 
 
 Sheffield. 
 
 Shrewsbury. 
 
 Southampton. 
 
 Stockton-on-T< 
 
 Sunderland. 
 
 Swansea. 
 
 Truro. 
 
 Totnes. 
 
 Wakefield. 
 
 Walsall. 
 
 Whitehaven. 
 
 Wolverhampton. 
 
 Worcester. 
 
 York. 

 
 I N D E X. 
 
 Note. — The Index does not extend to the introduction. 
 
 Abatement : 
 
 plea in abatement abolished, 209. 
 action not to abate by death, &c., 288. 
 
 Abolished Courts : 
 
 pending business, 56-57, 73-5. 
 
 functions not incident to administration of justice, 49. 
 
 ministerial powers and duties incident to jurisdiction, 52. 
 
 patronage, &c, 108, 111. 
 
 acts of Parliament, &c, applying to, 100-1, 1 10. 
 
 concurrence of judges, how replaced, 101. 
 
 commissions to their judges, 101. 
 
 officers attached to the Supreme Court &c, 101-103, 106, 10 ' 
 
 111, 307-8. 
 documents and chattels transferred to Supreme Court, 111. 
 
 Accounts : 
 
 assigned to Chancery Division, 7 ; ^, 7 I. 
 
 order by reason of defendant's non-appearance, 89, 90. 
 
 district registry, talcing accounts in, 90, 91, '240. 
 
 referees, sending questions of account for trial to, 87, 257. 
 
 indorsement of claim for, 107, 191-2. 
 
 directing accounts to be taki a, generally, 239-2 1". 
 
 Act of Parliament : see Statutt 
 
 Action- : 
 
 "action," meaning of, 113, 151. 
 substituted for what proceedings, 151, 158. 
 withdrawing, 220-221. 
 
 Address for Service: 
 
 indorsement on writ, 167, 168. 
 defendant on appearing is to give, 182-3. 
 
 Administration or Deceased Persons' Estates": (As to tru ts generally 
 see Trusts ; as to letters of administration see Probate Division). 
 assigned to Chancery Division, 73-7 t. 
 
 insolvent estates to be administered as in bankruptcy, 61-2. 
 parties to actions for, 196. 
 forms of indorsement of claim, 318 : of pleadings, 334-340. 
 
 Administrator : 
 
 joining claims by or against, 201. 
 
 action by or against administrator on behalf of estate, 195. 
 
 Admiralty Court : 
 
 consolidated with the Supreme Court, 42. 
 jurisdiction transferred to High Court, 51. 
 
 elusive jurisdiction: to whom assigned, 1~>. 80-81.
 
 422 index. 
 
 Admiralty Court — continued. 
 
 Privy Council jurisdiction in appeals from, transferred to Court of 
 
 Appeal, 53. 
 judge's position in High Court, 42-3, 48, 71-2, 81. 
 pending business, 75, 80-1. 
 
 rides in force in the new courts where not altered, 98. 
 cause in rem or in personam superseded by action in High Court, 151. 
 county court jurisdiction in Admiralty may be conferred upon other 
 inferior courts, 109-110. 
 
 Admiralty Division : see also Probate, Divorce, ami Admiralty Did, ion. 
 writ for commencing action in rem, form of, 164, 316, 324-6. 
 affidavit for issue of, 171-2. 
 service of, 89, 178. 
 
 caveat against release of property sued in prior action, 17:!. 
 intervening in action in rem, 184. 
 default of appearance in action in rem, 185, 183-9. 
 
 ement of claim, time for delivering, 21 7. 
 forms oi plei dings 2 13), (207), 34 1-8, 350-4, 364-8, 3/3-6. 
 damage by collision, preliminary Act in actions for, 210-1 1. 
 cause within concurrent jurisdiction of Admiralty Court may be 
 assigned to it, 170. 
 
 Admissions : 
 
 notice to admit documents, 239. 
 
 evidence of admission of documents, 239. 
 
 notice of admission of facts, 239. 
 
 pleadings, admissions in 239. See also Pleadings. 
 
 Affidavit : 
 
 evidence by, 99, 2i>4-7 : at trial, without consent, 264-6 ; by consent, 
 
 266-7 ; on summons, &c, 265. 
 printing, delivery of copies, &c, 299, 391 - 1. 
 commissioners to take, attached to Supreme Court, 101, 106, 107. 
 
 Affirmation: 
 
 "oath" includes, 111. 
 
 Amending : fin*'* 2 2.3 
 
 irregular proceed! 'ally, 307. 
 
 parties, amendment by substituting, adding or striking otit, 194, 
 
 197-21 . 
 indorsement of claim, 165. 
 pleadings, generally, 223-5. 
 
 new assignment, amendment in lieu of, 209-210. 
 
 while demurrer pending, 227. 
 in appeals, 54, 304. 
 abolished court-, judgments of, 56-57. 
 
 Amendments of Law : see A 
 
 Appeal, Court of : (As to appeals not to Court of Appeal see Appeals.) 
 constitution, 42-51. 
 
 ex-officio judges, 45 ; ordinary, 45, 46, 50 ; additional, 45 ; presi- 
 dent, 47. 
 
 judges irrernoveable during good behaviour, 46. 
 
 two divisions may sit, 85. 
 
 judge not to sit on appeal from order made by himself, or by a 
 " Divisional Court" of the High Court of which he was, "and 
 is." a member, 45, 85. 
 
 appeals from final orders to be heard by three judges, 85. 
 
 appeals from interlocutory orders may lie hoard by two ju<L< 

 
 INDEX. 423 
 
 Appeal, Court of — continued. 
 jurisdiction, 42, 53-61. 
 
 courts whose jurisdiction is transferred, 53. 
 
 privy council jurisdiction in admiralty and lunacy Appeals, 53. 
 
 power to transfer appeals generally, postponed, 55-56. 
 appeal lies to it from the Bankruptcy Court, 182. 
 pending business in abolished Courts, what jurisdiction as to, 56-57. 
 appeal lies from High Court or any judge thereof in all cases not 
 excepted, 54. 
 
 crown case reserved, no appeal on, 83. 
 
 criminal cause, no appeal in, save for error in law apparent on 
 
 the record, 83. 
 costs, no appeal without leave as to discretional, 84. 
 consent, no appeal without leave from order by, 84. 
 inferior court, special leave necessary for further appeal from, 
 
 81-82. 
 judge's order at chambers, no direct appeal without leave, 84. 
 procedure generally, 57, 99, 301-7. 
 
 incidental directions by single judge, S4. 
 interim order during vacation by single judge, 84. 
 exception in, to judge's direction at trial, 138. 
 sittings, 68, 308 ; vacation judges, 69, 311. 
 mode of appeal, 301. 
 parties to be served, 303- 1. 
 time required in notice, 304. 
 time limited for appeal, 305-6. 
 cross-appeals, substitute for, 304-5. 
 evidence, admitting further, 304. 
 amendments, powers of court as to, 304. 
 costs of appeal, 304 ; security for costs, 307. 
 judgment, 304. 
 officers : — 
 
 of divisions are to follow appeals, 308. 
 attaching officers to Court of Appeal, 107. 
 authority over officers of the Supreme Court, 108. 
 registrar in ecclesiastical and admiralty causes, 48, 49. 
 district registrars empowered to perform duties assigned by special 
 order, 89. 
 
 See further Officer*. 
 llaneous provisions : — 
 acts of Parliament, &c, to be read as applying to the new courts, 
 
 instead of former courts, 100-101, 140. 
 lunacy jurisdiction may be vested in judge of < !ourt of Appeal, 53. 
 ordinary judge may be included in commission of assize, 77, and 
 
 may sit for judge of High Court, 84. 
 application under rules to be made in first instance to High Court 
 judges where competent, 307. 
 
 Appeals : 
 
 to House of Lords, none from High Court or Court of Appeal after 
 
 1st, Nov. 1876, 54, 126; meanwhile, 54-55, L26-12Z. 
 to Privy Council, none from Court of Appeal or High Court after 1st 
 Nov. 1876, 54, 126; meanwhile appeal from Court of Appeal to 
 House of Lords instead of P. C, 54-55, 126. 
 power to transfer all appeals to < 'ourt of Appeal, postponed, 55-56, 
 I $5-86), 126. 
 fco i 'on rt, of Appeal : see above : — Appeal, Court of. 
 to the i I igli i 'ourt from inferior courts : — 
 how to be heard, 81-82.
 
 IL'1 INDEX. 
 
 Appeals— continued. 
 
 special leave to appeal to Court of Appeal, 81-82. 
 
 enactments as to county court appeals may be extended, 135. 
 from district registrars, 245-6. 
 from master to judge at chambers, 298. 
 from chambers to the Court, 84, 298. 
 
 from judge elsewhere. See Motions to set aside judgment, &c. ; and 
 see above, Appeal, Court of. 
 
 Appearance : 
 
 generally, 181-5. 
 
 place, 181-2 ; mode, 182-3 : time, 184-5, 181. 
 
 time if defendant abroad, 181. 
 
 notice to plaintiff if appearance not where writ issued, 182. 
 
 „ when after time, 184. 
 intervening in probate action, I s !. 
 
 ,, admiralty action, 184. 
 
 by landlord, &c, in action for land, 184. 
 stranger served with notice, •J 1 "'. 
 counterclaim, appearance to, 219. 
 of pari ' cession, &c, 289. 
 
 rtaking to appear, breach of, 183. 
 fictitious address, setting aside for, 
 notice on writ as to place of, 169. 
 default of, 179, 185-189. See further Default. 
 
 Applications : 
 
 in an action, 295-8, 307. 
 
 miscellaneous applications, l." Q . 295-8, 207. 
 
 Arbitrators : see Referees. 
 
 ENT : 
 directing argument, 82-3, 241, 254. 
 
 entering demurrer for, 226, "227 : form. 077. 
 special case, 240-1. 
 
 Arrest of Ship, &c. : see 
 
 Assessors : 
 
 trial, &c, with aid of assessors, 86, 248, 25i 
 remuneration, 86. 
 
 Assignment : 
 
 of debt or other chose in action, 63. 
 
 of matter to division or judge, 73, 7'!. N ". 158, 1 70, 171. 
 
 A i/i s : 
 
 jurisdiction under assize commissions, &c, transferred to Hr'h Court 
 
 51, 111. 
 issue of commissions, general or special, to judges and others, 69, 77. 
 jurisdiction and powers of commissioners, '19-70, 82, 253-5. 
 circuits not affected, save where expressly altered by or under the 
 
 Acts, 111 ; power to regulate circuits, 138-140. 
 notice of trial for, 251. 
 judgment, &c, at, 253-5. 
 i — ues, sending for trial particular, 256. 
 marshal attending commissioner of assize, 103. 
 
 ii i \te : 
 
 entry of judgment, &c., by or through, 255.
 
 INDEX. 425 
 
 Attachment : 
 
 of person, 279 ; form, 387. 
 
 " writ of execution " includes, 274. 
 
 referee cannot enforce order by, 264. 
 
 solicitor undertaking to appear and not appearing, 183. 
 
 discovery, &c, attachment for not granting, 238. 
 of debts, 280-3. 
 
 Attorneys : 
 
 to be solicitors of the Supreme Court, 108-101). 
 registrar of solicitors to be name of registrar, 134-5. 
 enactments as to attorneys may be adapted to solicitors, 135. 
 
 Audita (Querela : 
 abolished, 278. 
 
 Banc : 
 
 business proper to be disposed of by court in banc to be disposed of by 
 divisional court, 79-80. 
 
 Bankruptcy : 
 
 London Court 
 
 remains a separate court (42), 131. 
 
 chief judge to be appointed from judges of High Court, 131. 
 
 included in expression 'London Court,' &c, 113. 
 appeal lies to the new Court of Appeal, 132. 
 appellate jurisdiction in bankruptcy transferred from the Court of 
 Appeal in Chancery to the new Court of Appeal, 53. 
 
 existing rules as to bankruptcy appeals maintained whore not 
 
 altered, 98. 
 time for appeal, 305. 
 party to action, bankruptcy of, 288-290. 
 
 trustee in bankruptcy, joinder of claims by 201. 
 winding-up and administration of insolvent estates assimilated to 
 
 bankruptcy, 01-02. 
 unclaimed dividends, &c, 147-8 ; repeal of powers, 389. 
 
 Bill in Chancery. Hoe Chancery, Court op. 
 
 Bill of Exceptions : 
 
 abolished, 301 ; but retained in substance, 301. 
 
 Bills of Exchange : 
 
 summary procedure in actions on, 160-164. 
 parties to actions on, 194. 
 
 Body, LTnincorporate ob Corporate: 
 
 service upon, 177. 
 
 Books : 
 
 See Docurru nts. 
 
 Bottom in : 
 
 affidavit before writ in bottomry action in rem, 1 72. 
 
 Business of the Courts : 
 
 distribution and arrangements generally, 68-86. 
 
 Cancelling Instruments : 
 
 proceedings for cancelling ai signed to < lhancery di\ ision, 73-7 t. 
 
 Case Reserved : 
 
 provision a bo r< erving case, 82 ; note thereon, 82-3.
 
 426 INDEX. 
 
 " Cause " : 
 
 proceedings included in expression, 113. 
 
 Cause-Book : 
 
 to be kept as in Chancery, 171. 
 
 ( Iause of Action : 
 
 idment of indorsement, as to, 165. 
 
 joinder of causes of action, 200-202. 
 against defendant abroad, 179-181. 
 
 See further, Statement of Claim, Parties, &c. &c. 
 
 < 'avkat : 
 
 in Admiralty proceedings : see Admiralty division. 
 in Probate „ ., Probate division. 
 
 Central Criminal Court : 
 
 judges of abolished courts, saving of commissions to, 101. 
 
 ( 'ham; 
 
 judge at chambers, powers of, 78-79. 
 
 r by, how it may lie set aside, 84, 298. 
 removal of proceedings from district registry by, 90. 
 re at chambers, 297-8. 
 as judge at chambers, 215, 297-8. 
 practice at chaml 
 clerks at, 105. 
 sittings at chaml- be regulated by Rules of Court, 96. 
 
 Chancellor, Lord ; 
 
 not affected, save by express provisions, 111. 
 " judge and president of the High Court. 12-43. 
 not a permanent judge of High Court, 127. 
 appointment and style not within provision as to other High 
 
 Court judges, 127. 
 president of Chancery Division of High Court, 71-72. 
 ex -officio judge of the Court of Appeal, 45. 
 president of the Court of Appeal, 47. 
 
 can empower appellate judge to act as judge of High Court, S4. 
 •us, 40. 
 removeability, 4C, 12". 
 
 appellate jurisdiction transferred to Court of Appeal, 53. 
 "Court of Chancery" and "Court of Appeal in Chancery" include 
 
 Lord Chancellor where context, &c. permit, 113. 
 lunacy jurisdiction of, 52, ">:'>. 
 visitor, his jurisdiction as, 52. 
 
 ( heat Seal, and letters-patent, his jurisdiction as to, 52. 
 non-judicial functions, 19. 
 officers of or in aid of, 111. 
 
 money or property in court, orders by Lord Chancellor as to, 96-97. 
 rules as to paymaster general or otherwise, his power of making, 9»i-!'7. 
 testing writs in case of vacancy of office of, 16 I. 
 represented how, when (4reat Seal in commission, 112 ; lord keeper 
 
 "included, 113. 
 Lancaster, transfer to the Lord Chancellor of powers of the Chancellor 
 as to officers, lot. 
 
 Chancellor of the Exchequeb : 
 how far affected, 112. 
 
 I !hAN( i i:v. ( !0URT OF : 
 
 ! ; '!; ted with the Supreme Court, 42. 
 \ ice chancellors made j the High Court, 42-43 ;
 
 ix 1 1 ex. 427 
 
 Chancery, Court of — con tinned. 
 
 members of Chancery division, 71-72. 
 jurisdiction transferred to High Court, 51. 
 
 exclusive statutory jurisdiction assigned to Chancery division, 73. 
 pending business assigned to Chancery division, 73. 
 and to same judge in Chancery division, 80. 
 appellate business, and procedure, 56-7. 
 bill or information, action in High Court substituted for suit 
 
 by, 151. 
 officers and their successors required to aid Lord Chancellor as 
 hitherto, 111. 
 
 Chancery, Court op Appeal in: See also Lords Justices of Appeal in 
 
 Chancery ; 
 appellate jurisdiction transferred to the new Court of Appeal, 53. 
 pending business, 56-57. 
 chancellor included where context permits, 113. 
 
 Chancery Division : 
 first members, 71-72. 
 judge appointed after commencement of act may be required to go 
 
 circuit, &c, 77. 
 business of, 73-74. 
 
 ponding business from Court of Chancery, sec Chancery, Court of. 
 business is to be disposed of in first instance by single judge, 80. 
 divisional courts may be held when, 81. 
 
 marking cause with name of judge, 73, S0-S1, 170 (159). 
 
 assignment to judge on transfer of action to, 291. 
 
 transfer from judge to judge, 290. 
 indorsement of claim, forms of, 318-31'.'. 
 default of appearance, 188. 
 
 transferring proceedings to County Court, 91, 92, 94. 
 district registrar, appeals, &c, from, 246. 
 officers attached to, by whom appointed, 107. 
 
 existing officers attached to, 307-308. 
 
 officers' duties in aid of Lord Chancellor, 111. 
 president of : see Chancellor. 
 
 ( Ihancery Funds Act. 146. 
 
 Charge : 
 
 on land, proceedings for raising portions or other charges, assigned 
 
 to Chancery division, 73-7 I. 
 proceedings for sale, &c, of property subject to charge, assigned to 
 
 Chancery division, 73, 7 I. 
 order charging stock or shares in execution, 283-6. 
 
 < Iharitebs. See also Trusts. 
 
 visitor, Lord Chancellor's jurisdiction as, not transferred, 52. 
 
 ( 'hattki, : 
 
 detention oi : ■■■ Dt t( nlimi. 
 
 I ' 1 1 1 j : i ■ Baron of the Excheqi 
 appointed as heretofore, 43 ; 
 
 office ma v be abolished, 72, 73, 
 judge of the High Court, 12, 13. 
 
 president of Exchequer division of High Court, 71, 72. 
 an ex-officio judgi of the Couri of \.ppeaL 45. 
 non-judicial fund ion . 19.
 
 428 INDEX. 
 
 Chief Justice of England : 
 
 to lie appointed as heretofore, 43 ; 
 
 office may be abolished, 72-73. 
 judge of the High Court, 42-43. 
 
 president of the High Court in absence of Lord Chancellor, 43. 
 
 president of Queen's Bench division of High Court, 71-72. 
 ex-officio judge of the Court of Appeal, 45. 
 non-judicial functions, 49. 
 
 Chief Justice of Common Pleas : 
 appointed as heretofore, 43. 
 
 office may be abolished, 72-73. 
 judge of the High Court, 42-43. 
 
 president of Common Pleas division of High Court, 71-72. 
 an ex-officio judge of the Court of Appeal, 45. 
 mm-judieial functions, 49. 
 
 Chose in Action : 
 assignment of, 63. 
 
 ( 'incurs : 
 
 how far affected (70), 111, 138-140 ; as to powers, &c, of judges on 
 
 circuit, see Assizes. 
 orders in council may be made for altering circuits, for Surrey business, 
 
 assize towns, &e., change of commission-day, &c, and for subsidiary 
 
 purposes, 13S-140 ; saving of existing powers and application of 
 
 existing enactments, 139-140. 
 what judges an- to go circuit, 77. 
 
 Citation : 
 
 in Probate Court ; see Probate Court. 
 
 ( lLAIM : 
 
 indorsement of claim, 158, 165 : see Indorsement of ('/"int. 
 statement of, 203-4, 215-217 : sec Statt mi nt <>f Claim. 
 joinder of causes of action, 200-202 : see also Parties. 
 joinder of parties : sic Parties. 
 counter-claim : see Counterclaim. 
 claim of relief over : see Third Parti/. 
 
 ( 'lf.iiks : see Officers. 
 
 Close of Pleadings : 
 rules as to, 222, 230. 
 
 Collision Between Ships : 
 
 Admiralty rule to apply when both ships in fault, (36-67. 
 preliminary Act, 213-214. 
 
 Commencement of Clauses : 
 
 the Acts generally (41), 125, 126. 
 particular clauses: — 
 
 appeals to House of Lords abolition postponed (41), 54, 126. 
 Privy Council appeals from Court of Appeal. &c, entire pri \< n 
 tion postponed, but appeal to House of Lords substituted : 
 (41), 54. 126. 
 Privy Council appeals from other courts, power to transfer to 
 
 Court of Appeal postponed ; (41), (55-56), (85-86), 126. 
 vacations, power to regulate, 68-69. 
 district registries, power to establish, 88 S9. 
 rules, power to make, '."'>. 
 laying rides, &c, before Parliament, 97.
 
 INDEX. 1 29 
 
 Commencing Proceedings : 
 
 document commencing proceedings to be marked with division or judge, 
 
 73, 76-77, SO, 158, I/O; notice to officer, 70, 171. 
 rules generally as to, 151-181. 
 district registries, writs from, SS, 168 ; see also Writs and District 
 
 Registries. 
 action in the High Court substituted for certain proceedings, 151. 
 
 commenced by writ of summons, 15S. 
 applications not specially provided for how to be made, 158. 
 "cause" extends to original proceedings generally, 113. 
 
 Commissioners of Assize, &c. See Assizes. 
 Commissioners for taking Oaths, &c. 
 
 existing commissioners attached to Supreme Court, 101-102. 
 
 made commissioners in all matters, 106. 
 
 appointed by whom, 107. 
 
 fees, 409. 
 
 Commissions to Examine Witnesses : 
 provision for, 264-6. 
 
 Common Pleas, Court of. 
 
 consolidated with the .Supreme ( lourt, 42. 
 
 jurisdiction transferred to High Court, 51. 
 
 its exclusive jurisdiction assigned to Common Pleas division, 74. 
 
 pending business, 56-7, 74. 
 
 puisne justices made judges of the High Court, 42-43 ; 
 
 members of Common Pleas division, 71, 72. 
 Chief Justice of. See Chief Justict of Common Pleas. 
 
 Common Pleas Division : 
 first members, 71-72. 
 business assigned to, 7 i. 
 
 pending business of Court of < lommoii Pleas, 50-7, 74. 
 divisional courts for business of, 79-80. 
 officers attached to, 107, 30S. See further Officers. 
 master's powers to act for judge at chambers, 297-8. 
 president. See Chief Justice if Common. Pleas. 
 
 ( Iommon Law : 
 
 all legal rights, &c, to be recognized, subject to express provisions, 
 
 (58), 60. 
 general provisions as to administration of law and equity, 57-61, 67. 
 equity t<> prevail in ease of conflict net specified, 67. 
 contributory negligence in collisions between ships to have same effect 
 
 as in Admiralty Court, 66-67. 
 other amendments of law, 61-7. 
 
 ( loMPANI : 
 
 service of writ upon, 176-178. 
 
 Complaint, Statement of, see Statement of Claim. 
 
 Concurrent Writs : 
 
 provision for, 172-3 ; renewal, 174. 
 
 ( lONFESSION OF Defence : 215, form 328. 
 Consolidation of Actions, 291-2. 
 Contempt of < Iourt: 
 
 Contempt "f Supreme Court by disobedience of certain orders of High 
 
 ( lourt or < lourt of Appeal, 111. 
 Hi«b. Court and Court of Appeal are superior courts of record, 51, 53.
 
 430 INDEX. 
 
 Contracts : 
 
 equitable relief against, 57-58. 
 
 stipulations not essential in equity to have .same effect at law, 63-6 i. 
 
 defendant abroad, but contract made or broken within the iurisdictio'i 
 
 179. 
 joining parties iu actions as to contracts, 194-5. 
 tran sf erriny action on contract to County Court, 91-94. 
 costs when plaintiff recovers only £20, 91, 92, 94. 
 specific performance : see Specific Performance. 
 
 I lONTKIBUTOKY NEGLIGENCE : 
 
 in collisions between ships, Admiralty rule to apply, 66-67. 
 
 Copies : 
 
 taking copies on inspection, 230. 
 delivery, &c, of copies, 391-394. 
 exemplifications and copies from district registries, 89. 
 
 Corporation : 
 
 service of writ upon, 177. 
 
 Costs : (as to fixing and collection of office fees, see Fees.) 
 rules as to costs, general power to make, 96. 
 schedule rules specially relating to costs, 298-9. 
 additional rules specially relating to costs, 394-6, 410-417, tables of, 
 
 396-410. 
 existing rules, &c, to apply so far as consistent, 416. 
 general provision as to discretion of the court, 298-9. 
 in relation to particular matters : (for amounts see below) : — 
 
 admissions, not making in defence due admissions, 219. 
 not making, as to documents, 239. 
 not giving notice to admit documents, 239. 
 
 affidavits containing hearsay, &c, 265. 
 
 appeal to appeal court, costs of, 304. 
 
 attachment of debts, 283. 
 
 attending proceedings without having interest, &c, 414. 
 
 confession of defence. 215. 
 
 copies, 391-4. 
 
 county court jurisdiction, costs as to cause within, 91-92, 94. 
 
 demurrer, 225, 226, -'27. 
 
 evidence, 411. 
 
 inspection of documents, 413. 
 
 interrogatories, 233. 
 
 joining too many plaintiffs, 192. 
 
 non-attendance, &c, at chambers, 412. 
 
 payment into court, 232. 
 
 probate in solemn form, 220. 
 
 prolixity in pleadings, 204. 
 
 slander, action for, when less than tOs. recovered, 92. 
 
 statement of claim when not required, 21(3. 
 
 time, application to extend. 414. 
 
 tort, action for, when less than 40*. recovered, 92. 
 
 withdrawal of claim or defence, 220-221. 
 
 writs not in prescribed form, 159. 
 taxation and review of taxation, 415-17; in distrid registry, 245 
 
 notwithstanding payment, in action for debt, 166. 
 appeal as to costs, 84. 
 execution for costs, 276. 
 security for costs of appeal. 307.
 
 INDEX. 431 
 
 Costs — continued. 
 
 .security under County Courts Act, 18(57, 91, 93-94. 
 
 action or issue tried by jury, costs in, 299. 
 
 trustee, &c, right of, to costs out of estate, 299. 
 
 district registry, proceedings in, 417. 
 
 needless proceedings, causing expense to opponent, 413-41 1. 
 
 scales, &c. of costs : — ■ 
 
 writs, summonses, and warrants, 396-7 
 
 services, notices, and demands, 397-400. 
 
 appearances, 400. 
 
 instructions, 400-1. 
 
 drawing pleadings and other documents, 402. 
 
 copies, 403-5. 
 
 perusals, 405. 
 
 attendances, 406-9. 
 
 oaths and exhibits, 409. 
 
 term fees, 410. 
 lower scale, cases for, 394-6. 
 special allowances or disallowances, 410-43 7. 
 
 Council of Judges : 
 
 meetings and general purposes, 100. 
 
 alteration in divisions of High Court upon recommendation of, 
 
 72-73. 
 vacations to be regulated upon recommendation of, 68-69. 
 
 Counsel : 
 
 signature of, not necessary to pleadings, 207. 
 
 Counterclaim : 
 
 power to defendant to make counterclaim, 59, 205-7 ; and to include 
 third party, 59, 219-220; exclusion of counterclaim where inconve- 
 nient, 205-6, 220 ; pleading in relation to counterclaim, 204, 208-9, 
 219-220 ; amending, 223-4 ; forms of counterclaim, 349, 357, 371. 
 
 service, &c, on third party brought in by counterclaim, 219-220. 
 
 " plaintiff," interpretation as to person making counterclaim 113. . 
 
 as to relief to defendant against third party by relief over see 
 Third Part;/. 
 
 County Court : 
 
 transfer of causes to County Court, 91, 92-94. 
 
 costs in High Court when County Court could have given relief 91-92 
 
 94. 
 costs in cases sent from Jfigli Court, 93, 94. 
 appeals from. 
 
 how heard, 73, 81-82. 
 
 business of Chancery division does not include County 'Court, 
 
 appeals to Court of * lhancery, 73. 
 no appeal from High Court without leave, 81 82. 
 enactments as to appeals from < lounty ( Jourts may be extended to 
 other inferior courts, 1 35. 
 equity and Admiralty jurisdiction of county courts maybe conferred 
 
 upon oilier inferior courts, L09. 
 procedure and powers of courts which have equity and Admiralty 
 
 jurisdiction, 110. 
 registrar may lie appointed district registrar of High < lourt 88. 
 See also Inferior Courts. 
 
 I !oURTS. For th 
 
 le name. 
 
 Abolished Cow i i. 
 
 ITS. For the respective courts, new or old, see the distinctive par 
 the name. For general provisions as to the abolished courts 
 
 tof 
 
 re
 
 1:32 INDEX. 
 
 duets continued. 
 
 the rules of law enacted and declared are t<> lie in force in all courts 
 
 so far, &c, 110. 
 
 Creditors' Suit : 
 
 bankruptcy rule- to prevail iu administration of insolvent estate of 
 
 person dying after commencement of Act, 01-02. 
 See also Administration of Estates. 
 
 ( Iriminal Proceedings : 
 
 practice the same except where expressly altered, 98. 
 
 excepted from the rules, 312. 
 Crown Cases Reserved, 83, 98, 114. 
 appeal from High Court in criminal causes, S3, 
 belonging to Court of Queen's Bench assigned to Queen's Bench 
 
 division, 74. 
 "cause'' extends to criminal proceedings, where consistent with 
 context, &c, 113. 
 
 ( Iross-Claim : 
 
 See Counter dab n and Set-off. 
 
 Crown Cases Reserved : 
 the court for, 83, 98, 114. 
 
 Crown Side of Queen's Bench Division: 
 
 excepted from the Rules, 312. 
 
 Damage by Collision at Sea : 
 
 contributory negligence to have same effect as in Admiralty Court, 
 
 66, 67. 
 preliminary act, 213-214. 
 
 Damages : 
 
 assessment of damages on default of appearance, 187. 
 on default of pleading, 228-230. 
 
 1 >ATE : 
 
 every writ to be dated of day of issue, 164. 
 concurrent writ, double date in, 172. 
 pleadings to be marked with, 'J |!< . 
 amended pleadings, 225. 
 
 Death : 
 
 of party, its effect on action, 288-290. 
 
 Debts : 
 
 assignment of, 63. 
 
 interpleader and other rights of debtor, 63. 
 special indorsement on writ in action for debt, 166, (326), 185-6 
 
 189-191, 217. 
 ordinary indorsement on writ in action for debt, 166. 
 judgment for default of pleading, 228-230. 
 attachment of debts in execution, 280-3. 
 
 Deceased Persons : 
 
 administration of their estates. — See Administration. 
 
 Declaration, Statutory. : 
 "oath" includes, 114. 
 
 Decree : 
 
 "judgment" includes d< cree, 114. — See Judgment. 
 
 Deed : 
 
 equitable relief against, 57-58. 
 
 rectification and cancelling, assigned to Chancery division 73-74.
 
 INDEX. 433 
 
 Default : 
 
 generally, 230 
 Of Appearand : 
 
 general provisions, 1/9, 185-189, 208, 296. 
 
 indorsement of service necessary for proceedings in, 179. 
 affidavit of service, 185. 
 filing documents in lieu of delivering, 208 
 service of notices, &c, without special leave, 296. 
 in particular cases : 
 
 account claimed in indorsement, 185, 191-192. 
 special indorsement of debt, &c, 185-G. 
 debt, &c\, not specially indorsed, 185, 1S6-7. 
 value of goods detained, 185, 187. 
 damages, 1S5, 187. 
 land, recovery of, 185, 187-8. 
 Admiralty actions in rem, 185, 188-9. 
 infant or lunatic defendant, 185. 
 Chancery actions, 188. 
 Probate actions, 188. 
 actions not specially provided for, 188. 
 counterclaim bringing in third party, 219. 
 notice to third party of claim to relief over, 200. 
 Of Pleading : 
 
 statement of claim not delivered, 22S. 
 defence not delivered : — 
 
 debt or liquidated demand, 228. 
 
 ,, several defendants, 22S 
 goods detained, 228 
 
 several defendants, 229. 
 damages, 228, 229. 
 
 several defendants, 229. 
 land and mesne profits, &c, 229. 
 probate actions, 229. 
 other actions, 229-230. 
 
 discovery not granted, treating as equivalent to default of 
 defence, 238. 
 subsequent pleadings, 230. 
 third party introduced, 230. 
 Of Prosecution : 
 
 statement of claim not delivered, 228. 
 discovery, &c, not granted, 238. 
 non-appearance at trial, see Trial. 
 
 Defence : 
 
 limiting appearance in action for land, 185. 
 statement of defence : (See Pkadiiujs for general provisions as to 
 pleadings and forms.) 
 generally, 203-15, 217-2(1. 
 
 equitable defence, 58-60, 204-5. See also Equity. 
 set-off of cross-claim, 205-7, 208-9, 219-220. 
 counterclaim, 59, 205-7, 208-9, 219-220. 
 
 See also Counterclaim. 
 relief over, 59, 198-200, 206-7. See also Third Party. 
 time for delivering, &c, 217'219. 
 
 not extended by late appi arance, 18-1. 
 optional delivery, 218. 
 abatement, abolition of plea in, 209. 
 statute, not guilty by, 210. 
 
 U
 
 l-'il INDEX. 
 
 Defence — continued. 
 
 general denials insufficient in, 211. 
 
 title to land need not be shown in, unless, &c, 210. 
 
 payment into court. 
 
 in satisfaction, 230-2. 
 
 on conflicting claims to debt assigned, G3. 
 
 as security, 292-5. 
 due admissions not made, costs where, 219. 
 interpleader by defendant may be at any time before defence, 152. 
 
 See further Interpleader. 
 amending, generally, 223-5, 307. 
 withdrawing, 220-221. 
 striking out, for not granting discovery, 238. 
 
 Defendants : 
 
 joinder of defendants, liberty to plaintiff for, 194-5, (193). 
 non-joinder, and substitution, addition &c, of defendants, 19G-200. 
 objection by, as to wrong plaintiffs, 192-200. 
 
 See also Parties for general provisions as to parties, 
 representative character is to be shown on writ, 165. 
 service of writ upon, 175-181. See further Writ and Service. 
 out of jurisdiction, service of writ or notice upon, 100, 179-181. 
 new defendants, service on, 197-200, 219-220. 
 appearance by, 181-5. See further Appearance. 
 intervening in probate action, 184. 
 
 admiralty, 184. 
 land, appearance by stranger in action for, 184. 
 service of notices, &c, on defendant who has not appeared, 296. 
 freeing defendant from attending particular proceedings, 194. 
 statement of defence. See Defence. 
 
 counterclaim by, 59, 204-9, 219-220, 223-4. See also Counterclaim. 
 relief over, power to defendant to claim, 59, 198-200, 206, 207 : see 
 
 also Third Party. 
 interpleader by, 152-8. 
 
 co-defendants, default in appearing or pleading by one of, 186, 228-230. 
 " defendant " applicable to person served with process or notice of 
 
 proceedings or entitled to attend proceedings, 113, 312, 396. 
 " plaintiff " applicable to every person asking any relief otherwise than 
 
 by way of counterclaim as a defendant, 113, 312, 396. 
 
 Delivery of Pleadings, &c. : 
 mode in general, 208. 
 filing when no appearance entered, 208. 
 as to time, &c, see Pleadings and other titles. 
 
 Delivery, Writ of : 274, 287-8 ; form 3SG. 
 
 Demurrer : 
 
 generally, 225-7. 
 
 form, (225), 377. 
 
 argument, entering demurrer for, 226 : form (227), 377. 
 
 ovemded, pleading after, 22G, 227. 
 
 Depositions : 
 
 admissibility at trial, 99, (137), 264-6. 
 admissibility in Court of Appeal, 304. 
 mode of taking, generally, 264-6. 
 mode of taking in Court of Appeal, 304. 
 printing and delivery, &c, of copies, 391-4.
 
 INDEX. 435 
 
 Detention of Goods : 
 
 default of appearance in action for, 185, 187. 
 „ pleading „ 228-230. 
 
 delivery, writ of, in action for, 274, 2S7-8, 386. 
 lien claimed, deposit in court of, 295. 
 
 Directing Jury : see Trial. 
 
 Disclosure as to Parties, &c. : 
 
 solicitor's declaration whether writ by his authority, 170. 
 partners suing or sued as firm, 173-1, 195. 
 
 Discontinuance : 
 
 of claim, defence, or counterclaim, 220-1. 
 
 Discovery : 
 
 action for discovery, statement of claim in, 208. 
 incidental to action : 232-8. 
 
 right to deliver interrogatories, 232-3. 
 
 objection to, 234, 237. 
 
 answering, 234, 235, 207. 
 
 corporation or body, interrogatories to, 234. 
 
 form of interrogatories (233), 329 ; of answer (234), 329. 
 
 costs of interrogatories, 233. 
 
 using answers in evidence', 238. 
 
 production, &c, of documents, 235-8. 
 
 dismissal of action or defence for not granting discovery, 23 ■ 
 inspection, &c, of subject-matter of action, 293-4. 
 
 Dismissal of Action :/C- aso*^/~- r^'/h^** <z£~c-U*±%. z.^'^y- 
 
 default in delivery of statement of claim, 228. 
 non-appearance of plaintiff at trial, 252. 
 discontinuance, 220-1 ; nonsuit, 273. 
 for failure to grant discovery, &c, 23S. 
 
 Distribution of Business : 68-86. 
 
 District Registries : 
 
 generally, 88-91, 168, 169, 242-7, 418. 
 order in council establishing, 418. 
 
 districts appointed, (244), 418. 
 appointment of registrars, SS, 418 ; joint registrars, 88, 11 8. 
 seal, 89 ; sealing documents, 8!'. 
 
 what proceedings to be taken generally in district registries, 89, 90 : 
 168, 169 ; 242-7. 
 issue of writs of summons from, 8S, 89, 90 ; 168, 169. 
 
 arrest of ships, &c, 89, !io,178. 
 appearance in, 181-4 ; (16S, 169). 
 proceedings after appearance, 182. 
 what proceedings are to !><■ in district registries when "action pro- 
 ceeds" there, 213, 212, 211, 215; and powers of the registrar in 
 such cases, 'J 15. 
 
 judgment, 242, 'J I . ; execution, 215 ; tiling documents, 213, 
 242, 211. 
 action "proceeds" fch re in whal cases, 168-9, 181-4. 
 removal of proceedings from district registry, 90, 216-7. 
 by defendant as of right, 246. 
 by discretional order, 247. 
 transmission of documents, &c. upon, 90, 247. 
 ival to by discretional order, 247. 
 mode of application I i 245. 
 
 i; 2
 
 436 INDEX. 
 
 District Registries— continued. 
 
 reference from registrar to judge, 245. 
 appeals, &c, from registrar, 245-6. 
 miscellaneous matters : — 
 
 inquiries and accounts, 90-91, (239-240). 
 
 production of documents, 90-91, (237). 
 
 administering oaths, 89. 
 
 power to perform duties assigned by rules or special order, S9. 
 fees, (89), 141-3 ; costs, 417 ; taxation of costs, 245, 415-417. 
 
 Distringas : 
 
 writ of, against Bank of England, 28b'. 
 nuper vicecomitem, 279. 
 
 Divisional Courts of the High Court of Appeal : 
 
 interim orders of a single judge may be discharged by divisional court. 
 
 84. 
 clause as to arrangements for holding, suspended, 85-86, 126 ; but see 
 
 enactment for sitting of two divisions, 85 and 133-4 ; and provision 
 
 for making rules as to divisional courts, 96, 136. 
 
 Divisional Courts of the High Court. 
 As to divisions, see Divisions. 
 matters not proper to be heard by single judge to be heard by 
 
 divisional courts, 79. 
 how formed, 79, 80. 
 
 for business of Queen's Bench, Common Pleas, or Exchequer 
 division, 79, 80. 
 what business of Queen's Bench, Common Pleas, and Exchequer 
 divisions to be so disposed of, 79-80. 
 of Chancery division, 81. 
 
 of Probate, Divorce, and Admiralty division, 81. 
 appeals from inferior courts to be heard by, 81-82. 
 setting aside order of judge at chambers by, 84 
 reserving points for, 82, 254. 
 vacation judges sitting as, 312. 
 
 Divisions of the Court of Appeal : 
 
 two " divisions " may sit at same time, 85. 
 see Divisional Courts. 
 
 Divisions of the High Court : 
 generally, 70- S 4. 
 
 High Court divided for despatch of business into five divisions, 70-72. 
 For special provisions as to each see titles of respective divisions, 
 viz.: Chancery, Queen's Bench, Common Pleas, Exchequer, and 
 Probate, Divorce, and Admiralty. 
 provisions as to administration of law and equity in all divisions, 57-61 , 
 
 61-67. 
 distribution of business may be determined by Kules of Court, 73. 
 
 subject thereto, how distributed, 73-77. 
 the five divisions maybe altered, 72-73. 
 any judge may sit in a division not his own, 71. 
 transfer of judges by the Crown, 72. 
 successor to a judge of High Court succeeds to same division in default 
 
 of rules, &c, 72. 
 appellate judge may act as additional judge of any division, 84. 
 document commencing proceedings to be marked with division 73, 
 76-77, 158, 170 : notice to officer 76, 171 ; extent of option as to 
 division 73, 76-77, 17c
 
 INDEX, 437 
 
 Divisions of the High Court — continued. 
 
 mistake as to division not to invalidate proceedings 76. 
 interlocutory proceedings to be taken in division to which cause is 
 attached 76. 
 pleadings to be marked with division 208. 
 transfer of cause from division to division, 76-77, 290-291. 
 allotment of action for trial in London or Middlesex to be without 
 
 reference to division, 252. 
 officers attached to, 107-8, 307-308. 
 officers are to follow appeals from, 308. 
 
 interpleader practice of common law courts to apply to all divisions, 
 152. 
 
 As to "divisional courts" of the High Court, see Divisional 
 Courts. 
 
 Divisions op the Supreme Court : 
 
 The court to consist of two permanent divisions, High Court and 
 Court of Appeal, 42. 
 
 As to each, see High Court and Appeal Court. 
 
 Divorce Court : 
 
 consolidated with the Supreme Court, 42. 
 
 judge of, made judge of High Court, 42, 43, and president of the P., 
 
 D. & A. division, 71, 72. 
 jurisdiction transferred to High Court, 51. 
 
 exclusive jurisdiction assigned to P., D. & A., division, 75. 
 pending business assigned to P., D. & A. division, 75, and to same 
 judge, 80. 
 rules in force in the new Courts till altered, 98 (136, 137), 312. 
 power of making rules, to whom given, 98. 
 
 Divorce Division : see also Probate, Divorce and Admiralty Division, 
 and Divorce Court. 
 exclusive jurisdiction of Divorce Court, assigned to whom, 71, 72. 
 exception of divorce proceedings, &c. from the rules, 98, 312. 
 special power of making rules, 98. 
 
 Documents : 
 
 admit, notice to, 239. 
 
 discovery, inspection, &c, of, 235-8. 
 
 trial by referees in cases requiring long examination of, 87, 257. 
 
 delivering pleadings and other documents, mode of, 208. 
 
 copies, delivery &c. of, 236, 391-4. 
 
 Durham : 
 
 Court of Pleas at, its jurisdiction transferred to High Court, 51. 
 
 pending business assigned to C. P. division, 74. 
 
 action in, superseded by action in High Court, 151. 
 
 officers and their successors, their duties, &c, 103, 104. 
 
 rules of Court, 104. 
 
 salaries, &c. of officers, 143, 144. 
 assize commissions, &c, comity palatine abolished as to, 112, 113. 
 
 Ecclesiastical & Admiralty Causes, Registrar in, 48-9. 
 
 Education : 
 
 equity to prevail as to education of infants, 67. 
 
 Ejectment : 
 
 no special action of ejectment in future, 159. 
 See Land, action for.
 
 438 INDEX. 
 
 Election Petitions : 
 judges for, 78. 
 
 Elegit : 
 
 writ of, 274, 276, 279 • and form, 383. 
 
 Entry for Trial : see Trial. 
 
 Equity : 
 
 general provisions as to administration by High Court and Court of 
 
 Appeal, 57-61, 67, 61-67. 
 claim of equitable right or relief to be allowed as by Court of Chancery, 
 
 57-58. 
 defence on equitable grounds to have effect as in Court of Chancery, 
 
 58-59. 
 all equitable rights, &c, incidentally appearing to be recognized as 
 
 in Court of Chancery (58), 59. 
 defence on ground for injunction (58), 60. 
 waste, equitable to be deemed also legal, 62. 
 merger, 62. 
 stipulations not of the essence in equity to have same effect in all 
 
 courts, 63-64. 
 infants' custody and education, equity to prevail as to, 67. 
 conflicting with common law is in general to prevail (61), 67. 
 jurisdiction of inferior courts in, 109-110. 
 all courts to give effect to the amendments of law, 110. 
 certain matters assigned for better despatch of business to Chancery 
 
 division, 70, 73-4. 
 
 Error : 
 
 abolition of proceedings in error generally, 301. 
 
 in criminal cases, appeal lies from High Court only for error on the 
 record, 83. 
 
 Estates : 
 
 administration of, assigned to Chancery division, 73-4. 
 representation of, 192-200. 
 costs out of, 299. 
 
 Evidence : 
 
 generally, 99, 264-7. 
 
 trial by jury, oral examination at, not in general to be affected by Act 
 
 or rules, 99. 
 depositions or affidavits, leave for use at trials, 99, 264-6. 
 affidavit-evidence by consent, 266-7. 
 rules of evidence in general not to be altered, 99. 
 direction to jury as to evidence, clause requiring, and note, 82 (138), 
 
 254. 
 new trial for improper admission or rejection of, 268. 
 referees, at trial before, 263. 
 motions, petitions, evidence on, 265. 
 in Appeal Court, 304. 
 documents wanting fee-stamp, 142. 
 
 not produced for inspection, 236. 
 
 admissions of documents, 239. 
 seal of district registry, 89. 
 renewed writ of summons, 1 75. 
 execution, 277. 
 interrogatories to opponent, using in evidence answers to, 238. 
 commissions, &c, for examination of witnesses, 2t!4-(J. 
 obtaining e - * Ldence bj inspection, &c. of property, 293, 29 t. 

 
 INDEX. 4:3'J 
 
 Examiners : 
 
 examination of witnesses before, 264-7. 
 
 Exception, Objection by : 
 
 answers to interrogatories, exceptions in Chancery to, superseded, 
 
 234, 235. 
 judge's ruling, &c, bill of exceptions to, abolished, 301, but partially 
 replaced, 82, 138, 301. 
 
 Exchequer Chamber : 
 
 jurisdiction and powers transferred to Court of Appeal, 53. 
 
 Exchequer, Chief Baron of : see Chief Baron. 
 
 Exchequer, Court of : 
 
 consolidated with the Supreme Court, 42. 
 
 junior barons made judges of the High Court, 42-43 ; and members of 
 
 exchequer division, 71-2. 
 jurisdiction transferred to High Court, 51. 
 
 its exclusive jurisdiction assigned to exchequer division, 75. 
 pending business, 56-7, 74. 
 Chancellor of the Exchequer and Lord Treasurer cease to be judges, 
 
 112 ; otherwise not affected, 112. 
 receipt of the exchequer not affected, 112. 
 Chief Baron of. See Chief Baron. 
 
 Exchequer Division : 
 first members, 71-72. 
 business, 74-75. 
 
 divisional courts for business of, 79-80. 
 master's power to act for judge at chambers, 297-8. 
 revenue side excepted from rules, 312. 
 officers attached to, 107, 308. 
 sheriff's appointment in, 112. 
 president. See Chief Baron. 
 
 Execution : 
 
 generally, 273-288. 
 
 praecipe required for issue of execution, 275. 
 order in which writs may issue, saving as to, 279. 
 pre-existing rights, saving as to, 279. 
 dating writ, 276. 
 indorsement of address, &c, 275. 
 expenses of execution, levying, 276. 
 duration and renewal of writ, 277. 
 " writs of execution," interpretation of, 274 (396). 
 '• issuing execution against," interpretation of, 274 (396). 
 for particular objects : — 
 money, 273. 
 
 indorsement of amount, 276 ; interest, 276 ; fi. fa. or elegit, 
 276-7, 279 ; time by which execution may issue, 276 ; 
 stay, 276. 
 land, 274, 287. 
 
 property other than land or money, 274, 287-8. 
 act or abstention required, 274, 286-7. 
 particular writs, &c, special provisions as to : 
 
 fi. fa., elegit, and v. rits in aid of them, 274, 276, 279 ; forms 382-5. 
 attachment of person, 273, 27 I, 279 : form 387. 
 of debts, 280-3.
 
 440 INDEX. 
 
 Execution — contin ued. 
 
 particular writs, &c, special provisions as to — continued. 
 
 sequestration, 273, 274, 286-7 ; form 387 ; against ecclesiastical 
 property, 279 ; form 385. 
 
 capias, 274. 
 
 delivery, writ of, 274, 287-8 ; form 386. 
 
 possession, writ of, 274, 287 ; form 3S6. 
 
 charging order and distringas, 283-6. 
 co-defendants, execution on judgment by default agaiust one of, 186, 
 
 191, 228. 
 firm, execution against, 274. 
 conditional relief, judgment for, 274. 
 judge's order, &c, execution on, 278. 
 stay, &c, on ground of facts too late for pleading, 278. 
 on old judgment or after change of parties, 277-8. 
 stranger to action, execution by or against, 278. 
 abolished courts, execution on judgments of, 56-57. 
 appeal to Appeal Court whether a stay, 307. 
 Court of Appeal, execution from, 54, 304. 
 district registry, execution from, 245. 
 
 Executors : 
 
 suing or being sued on behalf of Estate, 195. 
 representative character must be shewn on writ, 165. 
 joining claims, by or against, 201. 
 title must be denied specifically, 209. 
 
 Exemplifications : 
 
 from district registries, 89. 
 
 Fact, Trial of Issues op : 
 
 sittings in London and Middlesex for trial by jury to be held subject 
 to rules, &c, throughout the year, 70. 
 
 regidations as to sittings and vacations, 308-312. 
 right to trial by jury, 249, 250, 255-6. 
 
 right to trial before assize commissioners or at the London and Mid- 
 dlesex sittings, 69. 
 trial of issues of fact generally, 24S-264, 264-266. 
 see further Trial, EvicU nee, dr. 
 
 Fees, Official : (as to other fees see Costs.) 
 
 may be fixed by the Chancellor with any three judges and the Trea- 
 sury, 141-143. 
 existing fees to be taken, subject to order, 143. 
 stamps, fees to be taken by, except as otherwise directed, 141, 142. 
 regulations as to stamps, power to make, 141, 142. 
 documents unstamped, 142. 
 annual account to be laid before Parliament, 144, 145. 
 
 Fieri Facias : See Execution. 
 
 Filing : 
 
 in lieu of delivery when no appearance, 208. 
 in district registry, 89, 213. 
 pleadings, 208, 213. 
 
 Final Orders, &c : 
 
 appeals to Court of Appeal from, to be heard by three judges, 85. 
 district registry, when final judgment may be had in, 89-90, 242. 
 See also Judgment, &c.
 
 INDEX. 441 
 
 Firm : ?S>k G~~/^~^— — *— ^ '77' '**-*'* 6 
 
 action by or .against, 173, 176, 183, 195, 274. 
 
 power to sue or be sued 195 : disclosure of partners, &c, 173, 
 195; service, 176 ; appearance, &c, 183 ; pleading denial of, 209; 
 execution, 274. 
 Foreclosure : 
 
 assigned to Chancery division, 73-74. 
 
 Foreign Country, &c. : 
 
 action against defendant in, 160, 179-181. 
 notice to consul in action of wages against ship of, 171, 172. 
 action against foreign corporation, 177. 
 Forms : 
 
 appearance, memorandum of (183), 317. 
 
 limiting defence in action for land (185), 317. 
 claim by notice referring to indorsement (217), 328. 
 confession of defence (215), 328. 
 demurrer (225), 377. 
 
 entering for argument (227), 377. 
 documents, affidavit as to (236), 330. 
 notice to admit (239), 331. 
 notice to produce for inspection, (236), 330. 
 notice to inspect (237), 331. 
 execution, writs of (276), 382-8. 
 
 praecipe for (275), 380-2. 
 interrogatories (233), 329. 
 answer to (234), 329. 
 judgment (272), 378-9. 
 payment into court, notice of (232), 329. 
 
 acceptance (232), 329. 
 pleadings (207), 333-377 : sue Pleadings. 
 scripts, affidavit of, 333. 
 special case, setting down (241), 332. 
 
 third party, notices by defendant to (199), 327, (219), 329. 
 trial, notice of (250), 332. 
 
 certificate after (255), 332. 
 writs of summons, 159, 315-317, 318-327. 
 general form (159), 315. 
 
 admiralty action in rem (164), 316. 
 
 bills and notes, summary procedure on, 160, 164. 
 
 out of jurisdiction, for service or notice (160), 315-316. 
 
 general and special indorsements in action for debt, 166, 321, 
 
 326. 
 indorsements of claim (165), 318-327 :see Indorsements of Claim. 
 indorsement of representative character of plaintiff or defen- 
 dant (165), 327. 
 renewal of writ, memorandum for (174), 317. 
 Fraud : 
 
 pleading necessary, 211. 
 
 Gaol Deliver* : 
 
 jurisdiction undo- commissions of, transferred to High Court, 51. 
 
 issue of commissions not affected till, &c, 111. 
 Sit also Assizes. 
 Garnishee : 
 
 procei ding i against, 280-3. 
 Goods : 
 
 detention of : sec DeU ntion.
 
 442 INDEX. 
 
 Guaranty : 
 
 notice to guarantor or co-guarantor to defend action, 198-200. 
 
 Guardianship of Infants : see Infa 
 
 Guardianship of Lunatics: see Luna 
 
 Hearing : see Trial, <(r. 
 
 High Court : 
 
 constitution, 42-49, 51. 
 
 division of Supreme Court into High Court and Court of Appeal 
 
 42. 
 judges : — 
 
 first, 42, 43 ; saving of their powers, &c., 47. 
 subsequent, appointment of, 43; qualification, 46 ; oaths, 46. 
 number, (43), 127. 
 I nation, 45. 
 
 e vacated by judge being appointed an ordinary judge of 
 ( !ourt of Appeal, 15. 
 
 otherwise if only appointed additional judge, 45. 
 irremovable during good behaviour, 46, except Lord Chan- 
 cellor, 46, 127, and existing judges, 4 7. 
 House of Commons, cannot sit in, 46. 
 precedence, 47. 
 
 equal in power save where otherwise provided, 43. 
 Appeal Court judge may act as judge of High Court in certain 
 
 cases, 8 1. 
 commissioners of assize may be empowered to exercise any juris- 
 diction of the High Court, 69 (70). 
 
 are a court of the High Court, 69 (70). 
 judge at the Middlesex, &c, sittings is a court of High Court, 7". 
 superior court of record, Hi°:h Court is a, 51. 
 divisions : see Divisions < if the High Court. 
 divisional courts : see Divisional Court/! of the High Court. 
 single judge: see Judge. 
 jurisdiction, 42, 51-61. 
 
 courts whose jurisdiction is transferred, 51-53. 
 
 bankruptcy court's jurisdiction is not transferred, 131. 
 
 assize, oyer and terminer, and gaol delivery, jurisdiction under such 
 
 commissions transferred to High Court, 51. 
 ministerial powers incident to jurisdiction pass with jurisdiction to 
 
 High Court, 51-7.2. 
 pending business of abolished courts, 56-57. 
 equity and law how to be administered, 57-61, 67, 61-7. 
 prohibition cannot issue to, 60. 
 appeals from the High Court. 
 
 judgment or order of Court or Judge is subject to appeal to Court 
 
 of Appeal, save in excepted cases, 5 ! : see Appeal Court. 
 no appeal to House of Lords or Privy Council after 1st Nov., 1876, 
 54; meanwhile appeal from Court of Appeal to House of Lords, 
 54-55. 
 procedure. 
 
 failing special provision, to be same as in Court from which juris- 
 diction transferred, 57. 
 existing procedure of, &c, may be adopted when consistent with 
 Acts and Rules, 99. 
 eneral provisions, in civil causes. 57-61.
 
 INDEX, 443 
 
 High Court — continued. 
 
 sittings may be at any time and place, 68 : see also Sittings. 
 
 terms abolished, (38. 
 
 vacations, 68-69 : see also Vacations. 
 
 As to procedure, see further Rides, <ir. 
 officers. 
 
 attaching officers to High Court, 107. 
 
 authority over officers of the Supreme Court, 108. 
 
 See further Officers. 
 district registrars empowered to perform duties assigned to them 
 by special order, 89. 
 miscellaneous provisions. 
 
 Acts of Parliament, &c, applying to High Court, &c, instead of 
 
 former Courts, 100, 101, 140-1. 
 extra-judicial functions of judges of abolished Courts attach to 
 
 High Court judges, 49. 
 concurrence of judges of High ( lourt substituted for that of judges 
 
 of former courts, 101 
 chief judge in bankruptcy to be appointed from High Court 
 
 judges, 131. 
 lunacy jurisdiction may be vested in judge of High Court, 53. 
 judges how to be addressed, 43. 
 
 existing judges, their rights and duties saved, 47. 
 
 lb n, i hays : 
 
 As to the regular vacations, see Vacations. 
 reckoning time with regard to holidays, &c, 300. 
 what days are holidays, &c, in the offices, 311. 
 vacation judges' powers in intervals not called vacations, 312. 
 
 House of Commons : 
 
 judge of High Court or Court of Appeal cannot sit in, 46. 
 election petitions, judges for, 78. 
 
 House of Lords: 
 
 no appeal from Court of Appeal or High Court after 1 Nov. 1876, 
 54, 55, 126, 127, meanwhile, 54, 55, 126, 127; substitution of House 
 of Lords for Privy Council, 54, 55. 126, 127. 
 
 Hundred : 
 
 service of writ, &c., upon, 1 77. 
 
 Husband and Wife : 
 
 service inaction against, 176. 
 
 joining claims by or against, with separate claims, 201. 
 
 action by or against wife, 195. 
 
 marriage of party to action, 288-290. 
 
 IDIOTS : see Lunatics. 
 
 [Immediate Proceedings : 
 
 power to Court or judge to shorten time fur any proceeding, 300. 
 pressing applications during vacation to lie provided for, both as to 
 High Court and Court of Appeal, 69; provision made as to High 
 Court judges, 311, 312 ; none as to appellate judges, 311. 
 execution, 276, 277. 
 
 Indorsement of Claim : 
 
 (for other indorsements on writ of summons, see Writ). 
 generally, 158-160, 165-7. 
 
 directed, 158 ; to be made before issue of writ, 165 ; precision not 
 required, 165 ; amendment, 165.
 
 444: INDEX. 
 
 Indorsement op Claim — continued. 
 
 character of parties to be shewn, 165 ; in probate actions, 166. 
 mandamus, injunction or receiver, how far indorsement necessary for, 
 
 158-9. 
 bills of exchange, &c, summary procedure on, 160-4. 
 claim for ordinary account, 167 ; proceedings thereon, 191-2. 
 general indorsement in action of debt, &c, 166, form 321. 
 special indorsement of debt, &c, 166, 326. 
 
 default of appearance after, 185, 186. 
 requiring defendant to shew defence, 1S9-191. 
 notice referring to, in lieu of statement of claim, 217. 
 f rms in particular cases (159), (165-7), 318-327 : — 
 
 chancery claims, 318-19 ; probate (165-6), 321 ; admiralty, 321-6 ; 
 
 damages, 321-4; other money claims, 319-321 ; general indorsement 
 
 in action for debt (166), 321 ; special indorsement of debt (166), 
 
 326 ; miscellaneous claims, including injunction and mandamus, 
 
 321-4 ; character of parties (165), 327. 
 
 Infant : 
 
 custody and education of, equity to prevail as to, 67. 
 wardship, and care of estates, assigned to Chan, div., 73-74. 
 action by or against, 176, 185, 195, 197, 211 :— 
 
 power to sue by next friend and defend by guardian, 195. 
 
 service on, 176. 
 
 default of appearance by, 185. 
 
 admission by not pleading denial does not apply against, 211. 
 
 Inferior Courts : 
 
 equity and admiralty jurisdiction may be conferred upon, 109. 
 
 powers and procedure, if having such jurisdiction, 109-110. 
 
 transfer to High Court when counterclaim or defence beyond 
 jurisdiction 110. 
 amendments of law, &c, to be in force in all Courts so far as, &c, 111. 
 appeals from 
 
 how heard, 81-82. 
 
 determination of High Court final, saving leave, 81-82. 
 
 may be assimilated to County Court Appeals, 135. 
 registrar of, when he may be appointed district registrar of Hi'di 
 
 Court, 88. 
 
 Information : 
 
 Chancery suit by, superseded by action in High Court, 151. 
 
 Inhabitants : 
 
 service upon, 177. 
 
 Injunction : 
 
 cause in High Court or Court of Appeal not to be restrained by (58), 60. 
 matter of equity on which injunction might have been obtained to be 
 
 ground of defence or stay of proceedings (58), 60. 
 proceeding in High Court or Court of Appeal contrary to, may be 
 
 stayed, 60. 
 amendment of law as to, 64 ; note thereon, 6 ! on. 
 interlocutory order, 64 (64-66), 158-9, 292-4. 
 indorsement on writ of claim for, how far required, 158-9. 
 
 ISQUTRT : 
 
 may be ordered at any stage of proceedings, 239-240. 
 district registries, inquiries in, 90-91, 240. 
 writ of, 187, 228-230.
 
 INDEX. 145 
 
 Insolvency : 
 
 unclaimed dividends &c, in bankruptcy and insolvency, 147-8 ; repeal 
 
 of powers, 389. 
 administration of insolvent estates, assimilated to bankruptcy, 61-62. 
 
 Inspection : 
 
 documents, inspection of, 235-8. 
 subject of litigation, inspection of, 293-4. 
 
 Interest : 
 
 special indorsement containing claim for, 186. 
 execution for, 276. 
 
 Interim Orders. See also Interlocutor)/ Orders : 
 generally, 292-5. 
 pending appeal, 84. 
 
 Interlocutory Orders : 
 
 mandamus by, 64, 65, 158-9, 292-4. 
 
 injunction by, 64, 64-66, 158-9, 292-4. 
 
 receiver by, 64, 64-66, 158-9, 292-4. 
 
 interim preservation, &c, of property, 292-5. 
 
 delivery of property subject to liun, 295. 
 
 inspection, &c, of subject-matter of action, 293 : 4. 
 
 appeals to Court of Appeal from, may be heard by two judge; 
 
 time for appeal, 306 ; length of notice, 304. 
 appeal not to be barred by, 306. 
 
 As to interlocutory judgments by default, &c, see Default and 
 Judgment. 
 
 Interpleader : 
 
 generally 152-158. 
 
 common law practice to apply to all actions and all divisions, 152. 
 
 note thereon, 152-158. 
 by sheriff, 158. 
 by ordinary persons, 156-158. 
 application may be made by defendant at any time before defence, 152. 
 
 note thereon 157, 158. 
 assignment of chose in action; right of debtor or trustee, &c., to inter- 
 pleader, 63. 
 
 Interpretation Clauses : 
 
 general clauses, 113-114, 312-313, 396. 
 
 INTEBROGATOKIES : 
 
 to opposite party, 232-238. 
 right to deliver, 232-3. 
 objection to, 234, 237. 
 answering, 234, 235, 237. 
 
 body corporate or unincorporate, interrogatories to, 23 I. 
 dismissing action or defence for not obeying order as to, 238. 
 evidence, using answers to interrogatories in, 238. 
 form of (233), 329 ; of answer (234), 329. 
 costs of, 233. 
 witness, iutoiTogatovi' s for < •; animation of, 264-6, 
 
 Intervening : 
 
 in probate action, 184. 
 in admiralty action, 184. 
 in action for land, 184. 
 
 As to appearance by third party to defend upon notice from 
 defendant, ee Thvrd Party, and as to Interpleader see Inter- 
 pleader.
 
 446 
 
 INDEX. 
 
 Irregularity : 
 
 non-compliance with rules not to avoid proceedings unless ordered, 
 307. 
 
 Issues : 
 
 joining issue, 211, 212, 222. 
 preparing and settling by order of judge, 222. 
 
 for trial by jury to be submitted with complete direction ; enactment 
 and note, 82, 83, (138), 254, 255. 
 
 trial of particular issue, directions for, 250, 255-6. 
 sending particular issues of fact to assizes, &c, 256. 
 directed as to right to execution mi old judgment, 277-8. 
 
 on conditional judgment, 274. 
 law, issues of, 225-7, 240, 241. 
 
 see also Fact, Law, Trial. 
 
 Join i 
 
 of parties, 192-200. 
 
 of causes of action, 200-202. 
 
 of issue, 211-212, 222. 
 
 Judge : 
 
 every judge competent to sit in any divisional court, 7?. 
 duties as to taking part in divisional courts, 80. 
 . appellate judge may act in certain cases, 84. 
 non-judicial functions attach with jurisdiction to judges of High 
 Court, 49. 
 concurrence of High Court judges substituted for concurrence of 
 
 judges of former courts, 101. 
 as to non-judicial powers, see further Abolished Courts. 
 judge at chambers, 
 powers of, 78-9 ; 
 setting aside order of, 84, 298. 
 enforcing order of, 278. 
 
 removal of proceedings from district registry by, 90. 
 practice at chambers, 297-S ; clerks, 105. 
 master, &c, acting as, 297-8. 
 district registrar acting as, 245, 2'.'7- v . 
 single judge in open court. 
 
 judge in court is a court, 7S. 
 
 judge at the jury sittings is a court of the High Court, 70. See 
 
 L. & M. Sittings. 
 judge or commissioner at the assizes also, 69. See Assizes. 
 re generally, 78-9. 
 appeals from chambers, 84, 298. 
 chancery, and probate, divorce and admiralty business, to be dis- 
 posed of by single judge, 80-1 ; see further Chancery Division, &c. 
 marking document commencing proceedings with name of judge, 
 73, 80. See further Chancery division. 
 officers attached to judges, 102-3, 104-5, 107-8. See also Officers. 
 vacation judye. See Vacation. 
 appellate judge. See Appeal, Court of. 
 ■ salaries. See Salaries. 
 
 appointment and removal, &c. See High Covrt (and Appeal, Court of.) 
 
 Judgment : 
 
 decree is included in "judgment," 114. 
 
 equitable claims and defences, &c, to be o-iven effect to, 57-61. 67. 
 
 all remedies to be granted, 57-61.
 
 INDEX. 447 
 
 Judgment — continued. 
 
 parties for or against whom judgment may lie given, &c, 192-200. 
 
 notice of decree to persons not parties, 196. 
 by default generally, 
 
 setting aside, 230. 
 
 third party, judgment by default on issues affecting, 230. 
 by default of appearance, 185-189 : see further Default. 
 by default of pleading, 228-230 : see further Default. 
 for not shewing defence to indorsed claim for debt, &c, 189-191. 
 confession of defence, signing judgment for costs on, 215. 
 discontinuance or withdrawal of claim, 220. 221. 
 nonsuit, 273. 
 
 default in granting discovery, 23S. 
 demurrrer, judgment on, 227. 
 counterclaim or set-off, judgment on, 205, 220. 
 see also Counterclaim and Set-off. 
 third party, power to give relief against, otherwise than upon counter- 
 claim, 59, 198-200. 
 trial, judgment at or after, 252, 253-5. 
 
 entering, &c, judgment at, 252, 253-5. 
 
 ex parte trial, setting aside judgment on, 252. 
 
 new trial as to part of matter and final judgment for residue, 267. 
 motion for judgment, 269-272. 
 
 generally required, 269. 
 
 general note as to modes of obtaining judgment, 269. 
 entry of, generally, 272-3. 
 
 date of judgment, 272-3. 
 district registry, judgment in, 242-247. 
 conditional relief , execution on judgment for, 274. 
 interest on judgment, 276. 
 judge's order, &c, may be enforced as, 278. 
 relief against judgment on ground of new facts, 278. 
 execution of judgment : see Execution. 
 attachment of debts in execution of, 280-283. 
 abolished courts, pending business in, 56-7. 
 
 Judicial Committee. See Privy Council. 
 
 • Jurisdiction- : 
 
 High ( 'ourt, jurisdiction of. See High Court. 
 
 < -'ourt of Appeal, jurisdiction of. See Appeal, Court of. 
 Divisions, business of. See Divisions and the respective divisions. 
 Divisional Courts, powers of. See Divisional Courts. 
 
 Single judge of High ( 'ourt, powers of. See Judge. 
 defendant out of the jurisdiction, 160, 179-181. 
 
 Jory: 
 
 law as to jurymen and juries remains unaltered, 99. 
 
 London and Middlesex sittings to be held for trial by, 70. 
 right to trial by, 249, 250, 255-6. 
 
 See also Trial. 
 
 Justices of Appeal : 
 
 ordinary judges of the new court of appeal to be styled justices of 
 appeal, 15. 
 
 Lancaster : 
 
 < 'ommon Pleas at, 
 
 jurisdiction transferred to High Court, 51. 
 
 pending business assigned to Common Pleas division, 74.
 
 4:48 INDEX. 
 
 Lancastee — continued. 
 
 •action by writ superseded by action in High Court, 151. 
 
 officers and their successors, their duties, &c, 103-4. 
 
 powers of the Chancellor as to officers vested in the Lord 
 
 Chancellor, 104 (112). 
 rules, how to be made, 104 (112). 
 < hancery Court, appeals from, transferred to the Court of Appeal, 53 
 
 (112) ; as to further appeal, see 54-5, 126-7. 
 Chancery Court is not itself affected (112). 
 Clerk to the Council not an officer of the Supreme Court, 102 (112). 
 
 his duties, by whom discharged, 102 (112). 
 • isting Queen's Counsel, their precedence preserved, 103. 
 ( ihancellor not affected save by express provisions, 112. 
 assize commissions, &c, county palatine abolished as to, 112-113. 
 fee-fund and salaries, etc., of officers, 104, 143-144. 
 
 Land. 
 
 action for recovery of : — 
 
 in general similar to other actions, 159. 
 
 joining claims in, 201. 
 
 ■vice of writ in vacant possession, 178. 
 
 appearance by person not named in writ, 1S4. 
 
 limiting defence, 184-5. 
 
 judgment by default of appearance, 185, 187-8. 
 
 statement of defence need not shew title unless, &c, 210. 
 
 judgment for default of pleading, 229. 
 
 writ of possession. 274. 287, : J S| '. 
 chancery division, certain proceedings as to land assigned to, 73-4 
 defendant abroad, 160, 179. 
 
 amendment of law as to waste, 62, 64 ; merger, 62; mortgage, 62-3 ; 
 injunction against waste or trespass, 64. 
 
 Law : 
 
 all courts are to give effect to the rules of law enacted or declared, 110. 
 
 amendments, &c, of law, 61-67. 
 
 . quity to prevail in case of conflict not specified, 67. 
 
 general directions as to administration of law and equity, 57-61, 67. 
 
 questions of law :— 225-7, 240-1,253-4, 269-272. 
 
 special ease by consent or by order, 240-1. 
 
 demurrer, 225-227. 
 
 reserving points for divisional court, 82-83, 254. 
 
 jury to be fully directed as to the law, clause requiring ; 82, 138, 
 254 ; note thereon, 82-83, 254-255. 
 
 may by consent be tried at assizes, &c, 69, 70, 253. 
 
 motion for judgment, 269-27"-'. 
 
 in criminal cause 
 
 Leases : 
 
 ecific performance of contracts for leases, assigned to Chancery 
 division, 73-74. 
 
 Leave : 
 
 to defend claim for debt, &c, specially indorsed, 189-91. 
 
 ,, action on bill of exchange, 160-4. 
 to sue defendant out of jurisdiction, 160, 179. 
 to i-sTK- execution. See Execution. 
 
 Letters Patent : 
 
 jurisdiction of Lord Chancellor as to. 52.
 
 INDEX. 449 
 
 Lien : 
 
 sale, &c, of property subject to lien, proceedings for, assigned to 
 
 Chancery division, 73-74. 
 delivery of property subject to, on deposit in Court, 295. 
 
 Limitation, Statutes of : 
 
 express trust and breach not barred as between cestui que trust and 
 
 trustee by, 62. 
 renewal of writ to save, 174. 
 pleading necessary, 211. 
 
 Liquidated Demand. See Debt. 
 
 London and Middlesex. 
 
 sittings for trial by jury in London and Middlesex, 70, 251. 
 before whom, 77. 
 notice of trial for, 251. 
 lists for trial, 252. 
 sittings of the High Court in generally, 308. 
 vacation-sittings in London or Middlesex to be provided by rides of 
 
 Court, 69 : see Vacation. 
 trial to be in Middlesex, unless, &c, 248. 
 
 Surrey business, civil and criminal, commissions for, may be 
 directed by Order in Council to issue to the judges of the 
 sittings, 138-140. 
 judge at sittings is a Court of High Court, 70, 251. 
 
 London Court of Bankruptcy. See Bankruptcy. 
 
 London Office : 
 
 general note as to London office and district registries, 168-9. 
 issue of writs from, 168. 
 
 appearance in, 169, 181-5. 
 removal of proceedings from district registries to, 90, 246-7. 
 removal of proceedings to district registries from, 247. 
 entry of judgment, &c, in, 244-5. 
 transmission of documents, &c, from district registries to, 90, 247. 
 
 Long Vacation. See Vacation. 
 
 Lord Chancellor. See Chancellor. 
 
 Lord Chief Justice, &c. See Chief-Justice, <{■<■. 
 
 Lords Justices of Appeal in Chancery : 
 
 jurisdiction in lunacy, by whom to be exercised, 52, 53. 
 existing lords justices made ordinary judges of the new court of 
 appeal, 45. 
 
 Lunacy : 
 
 appellate jurisdiction of Privy Council in, transferred to Court of 
 
 Appeal, 53. 
 jurisdiction in, who to exercise, 52-53. 
 secretary to visitors abolished, 147. 
 fees and percentages, power to regulate, 141-3. 
 actions by and against lunatics : — 
 
 ] lower to sue or defend, by committee, next friend, &c, 203. 
 service on lunatic, 176. 
 default of appearance by, 185. 
 
 admission of facts by not pleading denial does not apply against 
 211.
 
 450 
 
 INDEX. 
 
 Mandamus : 
 
 enactment as to, 64 ; note thereon, 64-65. 
 
 indorsement on writ of claim for, how far required, 158-9. 
 
 interlocutory order, mandamus by, 64 (65), 292-4. 
 
 Marking with Division or Judge : 
 
 option as to division, &c, extent of, 73, 76-77, 170. 
 mode, &c, of assigning, 7-3, 76, 80, 158, 170-1. 
 pleadings to he marked, 208. 
 
 Marriage : 
 
 effect upon action of marriage of party, 288-290. 
 
 action by or against married woman, 195. See also Husband and Wife. 
 
 Marshal : 
 
 judge's marshal, his office not affected, 103. 
 of admiralty division, 178. 
 
 M\-ter : 
 
 powers of judge at chambers, exercise by master of, 297-8. 
 See also Officers, Cos's, dr. 
 
 Master of the Rolls : 
 
 appointed as heretofore. 43. 
 
 office may be abolished, 72-73. 
 judge of the High Court, 42-43. 
 
 member of Chancery division, 71-72. 
 an ex-officio judge of the Court of Appeal, 45. 
 officers attached to Chancery division, appointed in certain ca si 
 
 by, 107. 
 jurisdiction transferred to High Court. 51, 52. 
 non-judicial functions remain as heretofore, 49. 
 
 Matrimonial Causes : See Divorce Court and Divorce Division. 
 
 Merger : 
 
 amendment of law as to, 62. 
 
 Middlesex. See London & Middlesex for provisions common to both, 
 trial to be in Middlesex unless, &c, 248. 
 
 Mis-Direction.' See Trial. 
 
 Mis-joinder of Parties : 
 
 no action to be defeated by, 197 — See further Parties. 
 
 Monet, &c, in Court : 
 
 dealings of paymaster general, &c, with, 146. 
 
 regulations as to payment in or out of (96), 140. 
 
 paying out to plaintiff money paid in in satisfaction, 232. 
 
 AlnXTH : 
 
 meaning and computation of, 300. 
 
 MORTG .<i : 
 
 redemption and foreclosure assigned to Chancery division, 73-4. 
 mortgagor's power to sue in his own name for trespass, &a, 62-63.
 
 INDEX. 
 
 451 
 
 Motions : 
 
 applications in court to be by motion, 295. 
 
 procedure as to, 295-6. 
 
 new trial, motion for, generally, 267-8, 271-2. 
 
 mis-direction or non-direction, 82 (138), 254. 
 judgment, motion for, generally, 269-272. 
 
 on default of pleading, 229-230. 
 
 upon admissions in pleadings, 272. 
 
 trial, leaving parties to move for judgment after, 253. 
 
 after leave reserved, 269. 
 
 without leave reserved, 270. 
 
 when no judgment directed at trial, 269-270. 
 
 after order for trial of particular issues, 271. 
 
 limit of time for, 271. 
 
 further consideration, 271-2. 
 appellate judge, application to, to be by motion, 307. 
 Appeal Court, exception to judge's direction by motion in, 82, 138. 
 appeals to be by notice of motion, 301. See Appeal Court. 
 "petitioner" and "plaintiff" extended to applicant by motion, 113 
 (312), (396). 
 
 Multifariousness : 
 
 objection to action on the ground of, 200-2. 
 
 Multiplicity of Proceedings : 
 to be avoided, 60-61. 
 in inferior courts, 110. 
 
 New Trial : 
 
 motion for, generally, 267-8, 271-2. 
 
 on ground of misdirection, non-direction, &c, 82 (138), 254. 
 See also Motion for Judgment. 
 
 Next Friend : 
 
 not to be added without consent, 197. ' 
 See further Infant, dr. 
 
 Nisi Prius : 
 
 issue of commissions of, 51, 69, 77, 111 
 
 Non-joinder : See Parties. 
 
 Nonsuit : 
 
 effect of, 273. 
 withdrawing claim, 220-1. 
 
 Noticts : 
 
 writing generally required for, 299. 
 
 service of, before appearance, 296. See also Delivery. 
 
 Particular Notices : 
 
 writ against defendant out of jurisdiction, notice of, 160, 179-181 ; form 
 
 (160), 316. 
 writ generally, notice in lieu of service of, 175-179. 
 lam], limiting appearance in action for, 185; form, 317. 
 appearance not where writ issued, notice "f, 182. 
 appearance after time, notice of, 184. 
 inspection, &c, notice to produce for, 236 ; form, 330. 
 inspection, notice of readiness to produce for, 236-7 ; form, 331. 
 admit, notice to '2'-'M ; form, 331. 
 admission, notice of, 239.
 
 452 INDEX, 
 
 Notices — continued. 
 
 Particular Notices — rontin ued. 
 trial, notice of, 249-252, 267. 
 
 mode of trial, as to, 249, 250. 
 
 length of, 250-1 ; short notice, 251. 
 
 time for giving, 249-251 ; after consent to affidavit evidence, 267. 
 
 effect of notice as to time, 251. 
 
 countermand of, 251. 
 
 form of notice, 250, 332. 
 
 third party, notice to, 199-200. 
 third party, notice to, of claim to relief over, 59, 198-200. 
 
 counterclaim against plaintiff and third party, notice of, 59, 219. 
 
 questions in general affecting, notice of, 198-200. 
 decree, notice, of, 196. 
 
 motions and other applications, notice of, 295-6. 
 appeal court, notice of appeal to, 301, 303-5. 
 
 Oaths : 
 
 district registrars may administer, 89. 
 
 commissioners to take, attached to Supreme Court, 101. 
 
 made commissioners in all matters, 106. 
 
 appointed by whom, 107. 
 
 fees of, 409. 
 "oath" includes affirmation and declaration, 114. 
 judges' oaths, 46. 
 
 Officers : 
 
 general provisions, 101-9. 
 
 rules of court may be made as to their duties, 96, 102, 106. 
 
 distributio'n of business in default of rules, 102. 
 "proper officer" meaning of (103), 313, (396). 
 appeals, officers as to, 48-9, 107, 308. 
 
 ecclesiastical and admiralty registrar, his duties as to, 48-9. 
 appointment and removal of, 107-8, 148. 
 abolition or alteration of office, 103, 148. 
 authority over officers, by whom to be exercised, 108. 
 attaching officers to divisions and judges, 107-8. 
 judges, personal officers of, 104-5. 
 marshal of assize commissioner, 103. 
 marshal of admiralty division, 89, 178. 
 chamber clerks, 105. 
 
 oaths, commissioners for taking, 101, 106, 107, 409. 
 official referees, appointment and duties of, 106-7. 
 circuit business, officers assisting in, 111. 
 lord chancellor, officers of, or in aid of, 111. 
 Lancaster and Durham, officers of courts of, 103-4. See also Lancaster 
 
 and Durham. 
 registrar in ecclesiastical and admiralty causes, 48-49. 
 solicitors. See Solicitors. 
 district registrars, 88. See also District Registries. 
 
 existing officers attached to Supreme Court, 101-103 ; and to corre- 
 sponding divisions, 307-8. 
 
 of judges remain attached to them, 102-3. 
 
 duties of, 102-3, 106. 
 
 position of, may be determined by rule, 106. 
 
 removeability of, 102. 
 
 compensation for loss of fees, 106. 
 salaries, &c, of officers appointed under the acts, 10S. 
 documents, &c, of abolished courts, disobedience of officer as to, 111.
 
 INDEX. 453 
 
 Offices : 
 
 closing of offices, 311 ; computation of time as to, 300. 
 See Officers, London Office, District Registries. 
 
 Official Fees : 
 
 power to regulate court-fees, &c, 141-3. 
 
 existing fees to be taken, subject to alteration, 143. 
 
 Official Keferees : ^w^»^r a^> f& u*. a^ 6-j f l-$~2 
 
 appointment and duties, 106-7. 
 
 See further Referees. 
 salary and pension, 108. 
 travelling expenses, 107. 
 
 Order in Council : 
 
 circuits, power to regulate by, 13S-140. 
 
 divisions of High Court, altering by, 72-73. 
 
 vacations, power to regulate by, (J8-69. 
 
 rules of procedure, power to make, before commencement of act by, 96. 
 
 rules so made may be altered as other rules of court, 95. 
 
 order in council made, 390-417. 
 district registries, power to establish by, 88. 
 
 order establishing, 418-419. 
 inferior courts, power to extend enactments as to appeals from county 
 courts, 135. 
 
 power to confer equity and admiralty jurisdiction upon, 109. 
 parliament, laying before, 96, 97. 
 
 Oyer and Terminer : 
 
 jurisdiction under commissions of, transferred to High Court, 51, 
 
 issue of commissions not affected till, &c, 111. 
 issue of commissions under the Act, 69, 77, 111. 
 See also Assizes. 
 
 Paper : 
 
 for printed proceedings, 299. 
 
 Parliament : 
 
 parliamentary election petitions, judges for, 78. 
 laying Orders in Council and Hides before Parliament, 96, 97. 
 See also House <>f Commons. 
 
 Particulars : 
 
 special indorsement of particulars of debt, 166, 217. 
 of debt not specially indorsed, 186. 
 
 Parties : 
 
 general provisions as to, 192-200, 200-2, 203, 288-290. 
 
 joinder of plaintiffs, liberty for, 192, 197, 202. 
 
 joinder of defendants, liberty for, 19 1-5, 197. 
 
 non-joinder of certain parties immaterial as in chancery, 196. 
 
 mis-joinder and non-joinder, general effect of, 197. 
 
 substituting, adding, or striking out parties, 194, V.)G, 197, 19S. 
 
 proceedings against new defendants, 197-8. 
 partners suing or sued in name of firm, 173, 176, 1S3, 195, 274. 
 representing estate, 195. 
 
 „ numerous parties, 195. 
 
 conduct of action, 196. 
 lunatics, 203. 
 infants, 195, 197.
 
 i5i INDEX. 
 
 Parties — contin ued. 
 
 married women, 195, 197, 201. 
 
 husband and wife, joining claims by or against, 201. 
 trustee in bankruptcy, joining claim by, 201. 
 executor or administrator, joining claim by, 201-2. 
 separating claims inconveniently joined, 200, 202. 
 indorsement of character upon writ, lb'5 ; forms, 327. 
 death, marriage or bankruptcy of party, 288-290. 
 change of interest by assignment, &c, 288-290. 
 probate actions, 197. 
 
 defendant's right to relief against plaintiff or third party, 59. 
 counterclaim calling in new parties, 206, 219-220. 
 proceedings against the new parties, 219-220. 
 relief over to defendant against a third person, 59, 198-200. 
 complete settlement of controversies, strangers called in for, 193, 197- 
 
 200. 
 stranger, default of pleading when issues affect, 230. 
 stranger served with notice by defendant becomes a party, 59. 
 execution by or against stranger or new parties, 277-8. 
 " party," interpretation of, as including any person served with notice 
 
 of any proceeding or attending any proceeding, 113. 
 discovery from opposite party, see Discovery. 
 
 See also Plaintiff or Defendant when matter peculiar to either. 
 
 Partition* : 
 
 of real estate, assigned to Chancery division, 73-74. 
 
 Partners : 
 
 firm may sue or be sued, 195. 
 
 disclosure of partners, &c, 173, 195; service, 170 ; appearand 
 183 ; pleading denial of firm, 209 ; execution, 274-5. 
 dissolution and accounts assigned to Chancery division, 73-4. 
 
 Patents : 
 
 jurisdiction of Lord Chancellor as to grant of letters patents, 52. 
 
 pATRONAIdE : 
 
 of judges of abolished courts. — See Abolished Cowrts and the respective 
 courts. 
 
 Paymaster General : 
 
 power to make rules as to, 96. 
 
 power to adjust statutory provisions as to, 96. 
 
 dealings by, with money or securities in Court, 146. 
 
 Payment into Court : 
 
 in satisfaction, 230-232. 
 
 to abide event, 292-5. 
 
 by debtor, &c, sued for debt assigned, 63. 
 
 sequestration, &c, to enforce order for. 273. 
 
 statutory provisions as to, may be adapted to the now courts, 96. 
 
 Pending Proceedings : 
 
 in abolished courts generally, 56-7, 73-4. 
 
 See also the respective courts, 
 suspended clause saving appeals to House of Lords and Privy Council 
 
 from past judgments, 54. 
 as to interim orders, see Int< rim ' ' • . 
 
 Pension.- : 
 
 See Salaries and Pensions.
 
 INDEX. 455 
 
 Per-centaues : 
 
 power to fix fees and per-centages, 141. 
 
 Petition : 
 
 "plaintiff" applicable to petitioner, 113, (312), (396). 
 "petitioner" applicable to applicant by motion or summons, 113. 
 "pleading" applicable to petition, 114, (203), (312), (39G). 
 
 exception of petitions from certain rules of pleading, 211. 
 evidence on petitions, 265. 
 
 As to election petitions, see Election Petitions. 
 
 Petty Sessions : 
 
 appeals from, how heard, 81-82. 
 
 no appeal from High Court without leave, 81-82. 
 
 Plaintiffs : 
 
 joining plaintiffs, liberty as to, 192, 202. 
 substitution or addition of, 194. 
 
 See also Parties for general provisions, 
 assigning matter to division, &c, 73, 76-7, 80, 158, 170-1. 
 mortgagor suing for trespass, &c, 62-63. 
 assignee of chose in action, action by, 63. 
 indorsement of address, &c, when suing in person, 167, 168. 
 "plaintiff" applicable to every person asking relief otherwise than by 
 way of counterclaim as a defendant, 113, 312, (396). 
 
 Pleading : 
 
 general provisions as to, 203-214. 
 counsel's signature not needed, 207. 
 marking with date, title, division, &c, 208. 
 printing, 207. 
 
 delivery of pleadings generally, 203-4, 207-S, 213. 
 filing in lieu of delivering, 208. 
 in district registry, 213. 
 generally, 208. 
 drawing pleadings, general directions as to, 203-4, 207-213. 
 admitting by not denying, 210-211. 
 denial must answer the point of substance, 212. 
 denial of contract, 212. 
 ,, character, 209. 
 
 ,, facts of claim or counterclaim, 211-212. 
 
 joining issue, 211-212. 
 specific allegations required, 211. 
 departure not allowed, 211. 
 matters arising after action brought, 214-215. 
 amendment of, 223-5. 
 
 while demurrer pending, 227. 
 upon addition of new parties, 197-200. 
 compulsory amendment of unfair pleadings, 223. 
 withdrawing claim or defence, 220, 221. 
 demurrer, 225-227 ; form, 377. 
 default of pleading, 228, 230. 
 statement of claim, 203, 204, 208, 215-217. 
 optional delivery of, 215-217. 
 special indorsement referred to in lieu of, 21 7. 
 time for delivering, 215. 
 
 in Probate actions, 216. 
 in Admiralty actions in rem, 217. 
 place of trial, naming iii, 248. 
 relief desired, 203-4, 208.
 
 456 ixdex. 
 
 Pleading — contin tied. 
 
 new assignment, amendment in lieu of, 209-210. 
 
 probate actions, denial of defendant's interest in, 209. 
 statement of defence. 
 
 general provisions, 203-4, 205-15, 217-220. 
 
 optional delivery of, 218. 
 
 time for delivering, 217-219. 
 
 not extended by late appearance, 184. 
 
 general denials insufficient in, 211. 
 
 due admissions not made, 219. 
 
 abatement, abolition of plea in, 209. 
 
 statute, not guilty by. 210. 
 
 title to land, 210. 
 
 set-off of counterclaim 205-6, 209. See also Counters '■ 
 
 counterclaim, 59, 205-7, 208-9,219-220. See also Counterclaim. 
 power to include third party, 59, 205, 219-220. See also 
 Counterclaim. 
 
 relief to defendant over, 59, 198-200, 206-7. See Third Party. 
 
 payment into court. 
 
 in satisfaction, 230-2. 
 
 on conflicting claims to debt assigned, 63. 
 
 as security, 292-5. 
 
 interpleader by defendant may lie at any time before, 152. See 
 Interpleader. 
 
 striking out, for not granting discovery, 233. 
 counterclaim, 59, 205-7, 203, 209, 219-220. See also Counterclaim. 
 reply, 222. 
 
 time for, 222. 
 
 counterclaim including new parties, reply to, 219-220. 
 
 joining issue, 211. 
 subsequent pleadings, 222. 
 
 close of pleadings, 222, 230. 
 
 issues, 222. 
 precedents of pleading : (207), 333-377. 
 
 account stated, 333 
 
 administration of estates, 334-340. 
 
 agent for sale sued for insolvency of buyer, 340. 
 
 bills and notes, 341-3, 368. 
 
 bottomry, 345-8. 
 
 charter-party and eoiuiterelaim, 349-350. 
 
 collision at sea, 350-2. 
 
 damage to cargo, 344. 
 
 foreclosure and counterclaim, 356-360. 
 
 fraud on a sale, 361-2. 
 
 guaranty for due accounting, 362. 
 
 imprisonment, 354-5. 
 
 land and rent, &c, 363-4, 370-3. 
 
 necessaries, &c. for ship, 352-4, 364. 
 
 negligent driving, 365-6. 
 
 probate and administration, 363, 369. 
 
 salvage, 373-6. 
 
 shipowner against co-owner for possession, 366-8. 
 
 specific performance claimed in counterclaim, 371. 
 
 trespass to land and claim of injunction, 376-7. 
 inspection, &c, of documents referred to in, 236. 
 copy on entering judgment, 272. 
 
 collision between ships, preliminary acts before or in lieu of pleadings 
 in. 210-21 J.
 
 INDEX. 457 
 
 Pleading — continued. 
 
 long vacation, pleadings in, 300. 
 
 petition and summons included in, 113 (312), 396. 
 
 rules may be made as to pleading, 96. 
 
 Point Eeserved : 
 
 power to reserve point or direct argument, 82. 
 See also Law, questions of. 
 
 Portions : 
 
 raising, assigned to Chancery Division, 74. 
 
 Possession : 
 
 writ of, 274, 287 ; form, 386. See Land. 
 
 Powers, Miscellaneous : 
 
 powers not incident to jurisdiction transferred with jurisdiction, 49. 
 powers incident to jurisdiction transferred with jurisdiction, 52. 
 See also Abolished Courts. 
 
 Practice. See also Procedure. 
 
 jurisdiction to be exercised as to procedure and practice according to 
 rules of court, &c, 87. 
 
 Preliminary Act : 
 
 required in cases of damage by collision at sea, 213. 
 consent to »ubstitution of, for pleadings, 21 4. 
 
 President : 
 
 of division. See the respective divisions. 
 of divisional court. See Divisional Court. 
 
 Printing : 
 
 paper and type for, 299. 
 pleadings, 207; amended pleadings, 224. 
 answers to interrogatories, 234. 
 affidavit evidence taken by consent, 267. 
 evidence for Appeal Court, 306. 
 affidavit may be sworn to in print, 299. 
 special case, 241. 
 r> > additional rules as to printing, 391-394. 
 
 Privy Council : / 
 
 jurisdiction in Admiralty and Lunacy Appeals transferred to Court of 
 
 Appeal, 53. 
 jurisdiction in appeals generally, power to transfer postponed, 55, 56, 
 
 126, 127. 
 appeals from Court of Appeal, &c, 54, 55, 126, 127. 
 
 Probate, Court of : 
 
 consolidated with the Supreme Court, 42. 
 judge of, made judge of High Court, 42, 43. 
 
 and president of Probate, Divorce, and Admiralty division, 71, 72. 
 jurisdiction transferred to High Court, 51. 
 
 exclusive jurisdiction assigned to Probate, Divorce, and Admiralty 
 division, 75. 
 pending business assigned to Probate, Divorce, and Admiralty Divi- 
 sion, 75 ; and to same judge, 80. 
 rules in force in the new courts where not altered, 98. 
 
 power of making rules, to whom given, 96, 98. 
 suit commenced by citation or otherwise superseded by action in High 
 Court, 151.
 
 458 INDEX. 
 
 Probate Division: 
 
 See Prolate, Divorce, and Admiralty Division for provisions not 
 peculiar to probate proceedings ; and see Divorce Division and 
 Admiralty Division for matters peculiar to Divorce, <fcc, and 
 to Admiralty, 
 rules of Probate Court remain, save where altered, 98. 
 
 power of making rules, 96, 98. 
 action substituted for citation, &c, 151. 
 parties in probate actions, 197. 
 
 "probate action" includes action as to administration, 313 (396). 
 writ, place of issue of, 168. 
 
 indorsement on, 165-6 ; forms, 324. 
 affidavit verifying indorsement on, 171. 
 service of, out of jurisdiction, 181. 
 intervening, 184. 
 default of appearance, 188. 
 pleading to be according to the new rules, 203. 
 denial by plaintiff of defendant's interest, 209. 
 time for delivering statement of claim, 216. 
 proof in solemn form, notice requiring only, 220. 
 default in filing defence, &c, 229. 
 registrar acting as judge at chambers, 297-8. 
 Probate, Divorce, and Admiralty Division : 
 
 For admiralty proceedings : see also Admiralty Division and Admiralty 
 Court. 
 „ divorce ,, „ Divorce Division and Divorce Court. 
 
 „ probate „ „ Probate Division and Probate Court. 
 
 members, 71-72, president, 71. 
 
 any judge of High Court may hear a cause for judge of, 81. 
 single judge to dispose of business in first instance, 80. 
 
 divisional courts, when, 81. 
 admiralty jurisdiction to be exercised by whom, 81. 
 judge hereafter appointed may be required to go circuit, &c. (77), 131. 
 its business, 75. 
 plaintiff not to assign cause to it \inless he coidd have sued in Court of 
 
 Probate, Divorce, or Admiralty, 76-77. 
 pending business of Courts of Probate, Divorce, and Admiralty : see 
 
 those courts, 
 rules of Probate, Divorce, and Admiralty Courts remain where not 
 altered, 98. 
 
 president's power to make rules, 98. 
 existing officers attached to, 308. 
 registrar acting as judge at chambers, 297, 312. 
 assignment to judge on transfer of action to, 291, 312. 
 
 Procedure : 
 
 general enactments as to, 57-61, 86-101. 
 
 rules, power to make : see lluh><. 
 
 schedule rules, 151-313 ; forms, 315-388. 
 
 additional rules, 390-396, 410-417, table of cost-?, 396-410. 
 
 failing rules, &c, 57, 99, 100-101, 151, 158. 
 
 ministerial powers incident to jurisdiction transferred, 51, 52. 
 
 criminal procedure, generally unaltered, 9S, 312. 
 
 exceptions from the rides, 312. 
 
 non-compliance with rules, 307. 
 
 see further, the respective Courts, divisions, && 
 Proctors : 
 
 made solicitors of the Supreme Court, 10S-9. 
 See Solicitors.
 
 INDEX. 409 
 
 Production of Documents : 
 for inspection, &c, 235-8. 
 of copies, 392-4. 
 district registry, may be in, 90-91. 
 
 Prohibition : 
 
 cause in High Court or Court of Appeal not to be restrained by, 60. 
 
 Promissory Notes : see Bills of Exchange. 
 
 Prompt Proceedings : 
 
 vacation judges of High Court and Court of Appeal, rules of court to 
 provide for, 69 ; provision made as to High Court, 311; none as to 
 
 Court of Appeal, 311. 
 may act in intervals not called vacations, 312. 
 shortening time of proceedings, general power for, 300. 
 
 Proper Officer : 
 
 interpretation of, 317 (396). 
 
 Property : 
 
 effect on action of assignment, &c, pendente lite, 288-290. 
 defendant abroad, but action as to property within the jurisdiction, 179. 
 See also Land, $c. 
 
 Prosecution of Action : 
 
 dismissal for want of, 228, 230, 238, 252, 273. 
 
 in not delivering statement of claim, 228. 
 
 in not appearing at trial, 252. 
 
 in disobeying order for discovery, 238. 
 discontinuance, 220-1. 
 nonsuit, 273. 
 judgment by default generally, 230. 
 
 PROTHONOTARIES. See Officers. 
 
 Purchasers of Real Estate : 
 See Vendors and Purchasers. 
 
 Quarter Sessions : 
 
 appeals from, how heard, 81-82. 
 
 no appeal from High Court without Lave, Sl-82. 
 
 Queen's Bench, Court of : 
 
 chief justice of, see Chief Justice of Enr/lond. 
 
 consolidated with the Supreme Court, 42. 
 
 puisne justices made judges of the High Court, 42, 43 ; and members 
 
 of Queen's Bench division, 71, 72. 
 jurisdiction transferred to High Court, 51. 
 
 pending business assigned to Queen's Bench Division, 56-7, 74. 
 its exclusive jurisdiction assigned to Queen's Bench Division, 71. 
 
 Queen's Bench Division : 
 first members, 71, 72. 
 business assigned to it, 74. 
 divisional courts, for business of, 79, 80. 
 judge or judges not sitting in divisional courts, 80. 
 Crown side excepted from the rule*, 312. 
 existing officers attached to, 308. 
 master acting as judge at chambers, 297, 298. 
 president: see Chief Justice of England, 
 
 x 2
 
 460 IXDEX. 
 
 Queen's Remembrancer : 
 
 attached to the Supreme Court, 101. 
 
 Questions of Law: 
 
 generally, 240-241, 225-227, 253-254, 269-272. 
 special case by consent or by order, 240-241. 
 demurrer, 225-227. 
 reserving points, &c, 82-83, 241, 254. 
 at jury trial, 82-83, 138, 254-255. 
 sending by consent to assizes, &c, 69-70, 253. 
 motion for judgment, 269-272. 
 in criminal causes, 83. 
 
 Questions of Fact. See Trial. 
 
 Real Estate: 
 
 Chancery Division, certain proceedings as to real estate assigned to, 
 
 73-4. 
 amendments of law as to, 62-4. 
 See also Land. 
 
 Receiver : 
 
 enactment as to, 64 ; note thereon, 66. 
 indorsement of claim for, how far required, 158-9. 
 interlocutory order for, 64, 66, 292-4. 
 
 Record : 
 
 withdrawing, 221. 
 
 Master of the Rolls, his powers as to records, 52. 
 
 clerks of records and writs, 101. 
 
 cause-book, 171. 
 
 entry of judgment, 272-3. 
 
 district registry, records in, 89-90, 247. 
 
 See also Filing. 
 abolished courts, their books, papers, &c, 111. 
 inferior courts of, enactments as to County Court appeals may be 
 
 extended to other, 135. 
 superior courts of, High Court and Court of Appeal are, 51, 53. 
 
 Rectificatk 'X : 
 
 of instruments, assigned to Chancery division, 73-74. 
 
 generally, 86-7, 106-7, 248-250, 256-264. 
 
 official referees, appointment and duties of, 106-7. 
 
 salaries, 108 ; travelling expenses, 107. 
 special referees to proceed as official referees, 87. 
 questions which may be referred, 86-7, 248-250 ; under incorporated 
 
 clauses, 258-263 ; general note, 262-3. 
 inquiry and report, reference for, 86-7, 263-4 ; under incorporated 
 
 clauses, 258-263 ; note, 262-3. 
 trial, reference for, 87, 248-250, 263-4 ; under incorporated clauses, 
 
 258-263 ; note, 262-3. 
 procedure of, and powers over, generally, 87, 106-7, 256, 263-4 ; under 
 
 incorporated clauses, 258-263 ; note, 262-3. 
 tribunal of, not a public court, 263. 
 evidence before, 263. 
 witnesses' attendance before, 263. 
 place of trial, &c, 106-7, 256. 
 special case, &c, stated by, 264. 
 enforcing his own order, 264.
 
 INDEX. 461 
 
 Registrar : 
 
 of Probate, Divorce, and Admiralty division, acting aa judge at 
 
 chambers, 297-298, 312. 
 ecclesiastical and Admiralty registrar, 48-49. 
 district registrars : see District Registries. 
 see also Officers. 
 
 Relief : 
 
 equitable relief to plaintiff as in chancery, 57-58. 
 
 equitable defence to be allowed as in chancery, 58, 60. 
 
 common law rights, recognition of, 60, 67. 
 
 defendant, power to give relief as in independent suit to, 59 : see further 
 
 Counterclaim and Third Party. 
 all remedies to be granted and multiplicity of suits avoided, 60-61. 
 parties need not all be interested in, 192-194 : see also Parties. 
 indorsement on writ of relief claimed, 158, 165-167. 
 statement of claim and counterclaim, specifying relief in, 203-204, 208. 
 execution for the various kinds of relief : see Execution. 
 conflicting claims, relief against : see Interpleader. 
 
 Remedy. See Relief. 
 
 Remitting a Case : 
 to referee, 264. 
 to district registrar, 245. 
 
 As to transfer, see Transfer, &c. 
 
 Removing Proceedings : 
 
 to or from district registry : see District Registry. 
 to another division or judge : see Divisions and Chancery Division. 
 See also Transfer. 
 
 Renewal of Writ : 
 of summons, 174-5. 
 of execution, 277. 
 
 Reply (in Pleading) : 
 
 generally, 204, 211, 222. 
 
 time for, 222. 
 
 joining issue in, 211. 
 
 denial of facts of counterclaim, 211. 
 
 to counterclaim, including new parties, 219-220. 
 
 Representative : 
 
 action by or against, on behalf of estate, 195-7. 
 writ by or against, is to shew character, 165. 
 denial of representative character, 209. 
 
 Reserving Points, &c: 
 generally, 82, 253-4. 
 at jury trial, 82-3, 138, 253-4. 
 in criminal proceedings. See Crown Cases Reserved. 
 
 Retaining Causes: 
 
 wrong division, cause commenced in, may be retained, 76-77. 
 
 Revenue : 
 
 jurisdiction of Court of Exchequer as a court of, transferred to High 
 Court, 51 ; assigned to Exchequer division, 75 ; excepted from the 
 rules, 312.
 
 4G2 i.vdex. 
 
 Revising Babbisteks : 
 
 orders in Council as to circuits, their effect as to, 138-140. 
 
 Rolls, Master of the. See Master of the Rolls. 
 
 Rules : 
 
 power to make rules before commencement of Acts, 96, 97*. 
 power to make rules after commencement of Acts, 96, 97. 
 
 subjects generally, 96. 
 subjects especially mentioned : — 
 
 schedule rides, afteration of, 95, 96. 
 
 additional rules, alteration of, 95, 96*. 
 
 sittings, time and place of, 68, 70. 
 
 vacations, effectuation of order in council as to, 6S-69. 
 
 pressing applications in vacation to be provided for, 69. 
 
 appeals from High Court, terms and conditions of, 54. 
 
 distribution of business among the divisions, &c, 73. 
 
 divisions of the High Court, vacancies in, 72. 
 
 division, marking cause with, 76-77. 
 
 divisional courts, their business, &c, 79-81. 
 
 divisional courts for appeals from inferior courts, S1-S2. 
 
 district registrars' powers, S9. 
 
 single judge's powers, 78-79. 
 
 right of trial at assizes or the London or Middlesex sitting*, Q9. 
 
 reserving points, 82-83, 138. 
 
 pleadings, 96. 
 
 evidence by affidavit or deposition in certain cases, 99. 
 
 criminal procedure, 98. 
 
 costs, 96. 
 
 fees to be fixed by Chancellor, three judges, and Treasury, 141. 
 
 fee-stamps to be regulated by Treasury and Chancellor, 1 £2. 
 
 money in court, 96, 146. 
 
 officers' duties, 96, 102-3, 106. 
 
 solicitors, power of adapting enactments to, 135. 
 
 probate practice, by whom rules to be made as to non-contentious, 9 8. 
 
 divorce practice, by whom rules to be made, 98. 
 
 admiralty practice, alteration of rules as to, 98. 
 
 bankruptcy appeals, „ „ 98. 
 
 Lancaster and Durham Pleas, 103-4. 
 
 procedure and practice generally, 57, 96. 
 
 statutory provisions as to procedure, adaptation of, 96 t 
 
 See also Orders in Council. 
 non-compliance with the schedule rules, effect of, 307* 
 
 Salaries and Pensions : 
 
 judges', 47, 50, 145 ; officers', 101-103, 105, 108, 145, 149. 
 
 Sale : 
 
 specific performance of contract for sale of land, assigned to Chancery 
 Division, 73-74. 
 
 by court of property subject to charge, &c, assigned to Chancery Divi- 
 sion, 73-74. 
 
 S VLVAGE : 
 
 distribution of, affidavit before writ in action in rem for, 172. 
 
 Scandalous Matter : 
 
 striking out from pleadings, 223 ; from interrogatories, 234..
 
 INDEX. 403 
 
 Schedule Rules : 
 
 power to alter, 95. 
 
 effect of non-compliance with, 307. 
 
 Seal : 
 
 of district registry, 89. 
 great seal. See Chancellor. 
 
 Secretaries. See Officers. 
 
 Sequestration : 
 
 ordinary writ of, 273-2/4, 2S6-287 ; form, 337. 
 ecclesiastical property, writ against, 279 ; form, 385. 
 
 Serjeant-at-law : 
 
 judge of High Court or Court of Appeal not required to be, 46. 
 
 Service : 
 
 address for, 167-168, 182-183. 
 
 of writ of summons, 175-181 : see also Writ. 
 
 of counterclaim including new parties, 219. 
 
 of notice of claim to relief over, 199. 
 
 on new parties generally, 197-200. 
 
 of notice of decree, 196. 
 
 on firm, 176. 
 
 on defendant before appearance, 20S, 296. 
 
 Set off : 
 
 defence of, 205-207, 208-209, 219-220. 
 See also Counterclaim. 
 
 Setting Aside : 
 
 irregular proceedings, 307. 
 
 judgment by default generally, 230. 
 
 nonsuit, 273. 
 
 ex parte verdict, &c, 252. 
 
 order of judge at chambers, 84, 298. 
 
 judgment wrongly entered at trial, 269-272. 
 
 Sheriffs : 
 
 appointment of, 112. 
 interpleader by, 158. 
 
 Shewing Cause: 
 
 rule to shew cause exceptional, 295. 
 See Motions. 
 
 Ship : 
 
 contributory negligence in collisions between ships, 66. 
 arrest of, 89-90, L78. 
 
 See further Admiralty Division, 
 
 Single Judge. See Judge. 
 
 Sittings : 
 
 generally, 68-86, 308-312. 
 time of, 68-70, 308-312. 
 
 terms abolished, 68. 
 
 subject to rules, power to sit at any time, 68 ; rules, 308-312. 
 
 vacations, 68-69, 308-312 ; judges for, 69, 311-312.
 
 464 INDEX. 
 
 Sittings — continued. 
 
 place of, 68-70, 308-312. 
 
 subject to rules, power to sit at any place, 68 ; rules, 808-312. 
 vacation-sittings to be provided in London or Middlesex, 69 ; rules, 
 311-312. 
 jury-sittings in London and Middlesex, 70, 308. See also London and 
 
 Middlesex. 
 assizes. See Assizes. 
 rules before or after commencement of Act may regulate, 96. 
 
 Slander : 
 
 costs when plaintiff recovers only 40s., 92. 
 
 Solicitors : 
 
 existing solicitors, attorneys and proctors made solicitors of the Supreme 
 
 Court, 108-109. 
 admission of solicitors of the Supreme Court, 109. 
 position, privileges and obligations, 109. 
 enactments as to attorneys may be adapted to, 135. 
 registrar of solicitors, 134-5. 
 writ to be indorsed with address, &c, 167, 168. 
 
 declaration by solicitor, whether writ issued by him, 173. 
 
 „ as to names, &c, of plaintiffs suing as firm, 173-4. 
 
 undertaking to appear and not appearing, 183. 
 attachment against for neglecting to give notice of order for discovery, 
 
 238. 
 costs. See Costs. 
 
 Special Case: 
 
 generally, 240-1. 
 by consent, 240-1. 
 by order, 241. 
 by referee, 264. 
 
 Special Indorsement of Debt: 
 
 writ may be indorsed with, 166 ; forms, 326. 
 
 default of appearance after, 185-186. 
 
 leave to defend after, 189-191. 
 
 notice referring to, in lieu of statement of claim, 217. 
 
 Specific Performance of Contracts : 
 
 for sale or lease of land, assigned to Chancery division, 73-74. 
 
 Speedy Proceedings : 
 
 power to shorten time for any proceeding, 300. 
 execution, 276, 277. 
 vacation judges, 69, 311-312. 
 
 Stamps : 
 
 fee stamps : see Fees. 
 
 Stannaries : 
 
 Warden's jurisdiction transferred to Court of Appeal, 53. 
 
 Statement of Claim : 
 
 generally 203-4, 208, 215-17. 
 time for delivering generally, 215. 
 
 in Probate actions, 216. 
 
 in Admiralty actions in rem, 217. 
 
 on special indorsement of debt, 217.
 
 INDEX. 465 
 
 Statement op Claim — continued. 
 
 optional delivery of, generally, 203, 215-16. 
 
 on special indorsement of debt, 217. 
 default in delivering, dismissing action for, 228. 
 pleading, common rules of, 203-4, 207-13. 
 relief desired, statement of, 203-4, 208. 
 joinder of causes of action in, 200-2. 
 place of trial, naming in, 248. 
 
 denial in probate action of defendant's interest, 209. 
 new assignment, amendment in lieu of, 209-210. 
 amending, generally, 223-5. 
 
 amending, &c, on addition of new parties, 198-200. 
 demurrer to, costs on, 227. 
 
 as to pleading generally, and forms, see Pleading. 
 
 as to indorsement of claim, see Indorsement of Claim. 
 
 Statement of Defence. See Defence. 
 
 Statute : 
 
 pleading not guilty by, 210. 
 
 repeal of enactments inconsistent with the Acts, 148. 
 
 application of former enactments, 100-1, 140 (96). 
 See also Abolished Courts. 
 
 circuits, &c, repeal of enactments when inconsistent with Order in 
 Council, 138-140 ; application as to arrangements on altering cir- 
 cuits, 138-140. 
 
 attorneys, enactments as to, may be adapted to solicitors, 135. 
 
 service of process upon corporations and bodies, application of statutes 
 as to, 177. 
 
 Statutory Declaration : 
 
 "oath" includes, 114, (312), (396). 
 
 Stay of Proceedings : 
 
 where injunction might have been or has been obtained, 60. 
 debt and costs indorsed, stay on payment of, 166. 
 solicitor's name used without authority, stay when, 173. 
 partners' names, &c, not disclosed, stay when, 173-4. 
 execution, stay of. See Execution. 
 
 See also the various causes of stay. 
 
 Stock : 
 
 defendant abroad, but action as to stock or other property within the 
 
 jurisdiction, 179. 
 charging order and distringas, 283-286. 
 
 Stranger. See TJdrd Party. 
 
 SUBrCENA : 
 
 witnesses' attendance before referee, enforced by, 263. 
 
 Summons : 
 
 writ of. See Writ. 
 
 chambers, applications at, to be by summons, 297. See Chambers. 
 " pleading" interpretation of as including summons, 113-14, 203 (312), 
 (396). 
 exception of, from certain rules of pleading, 211. 
 " plaintiff" or "petitioner/' interpretation of, as including applicant 
 by, 113 (312), (396).
 
 4GG INDEX. 
 
 Supreme Court : 
 
 constitution and judges, 42-51. 
 
 consolidation of various courts into Supreme Court, 42. 
 
 bankruptcy court not included, 131. 
 
 division into High Court and Court of Appeal, i2. 
 rides to be made by, 96. See Rales. 
 council of judges of, 100. 
 offices, closing of, 311. 
 
 officers of abolished courts attached to, 101-2. 
 appointment and removal of officers of, 107-8. 
 
 attaching officers to divisions and judges, 107. 
 authority over officers, by whom to be exercised, 10S. 
 district registrars are officers of, 88. 
 
 registrar in ecclesiastical and admiralty causes, 48-49. 
 officers' duties may be defined by Hides of Court, 96. 
 
 See further Officers. 
 solicitors of, 108-109. 
 contempt of, by disobedience to Order of High Court and Court of 
 
 Appeal in certain cases, 111. 
 documents, &c, of abolished courts transferred to it, 111. 
 
 ♦Surrey. 
 
 Orders in Council as to Surrey business, power to make, 13S-140. 
 revising barristers for, 138-140. 
 
 Taxation of Costs. See Costs. 
 
 Tenant for Life : 
 waste by, 62. 
 
 Terms : 
 
 abolition of, QS. 
 
 Testing Writs : 
 generally, 164. 
 concurrent writs, 172. 
 
 Third Party : 
 
 claim by defendant against, generally, 59, 19S-200, (206-207), 219-220. 
 
 counterclaim by defendant against plaintiff and,59, 219-220, (206-2"7). 
 
 claim by defendant against, for reUef over, 59, 198-200. 
 
 execution by or against, 278. 
 
 default of pleading when questions affect, 230. 
 
 introduction of, otherwise than by defendant, 197-200. See also Parties. 
 
 Time : 
 
 computation of, 300. 
 
 shortening or extending, 300. 
 
 late appearance does not entitle defendant to further time. IS 4. 
 
 terms may still be used as a measure of time in non-judicial matters, 
 
 68. 
 contracts, time in, 63-64. 
 
 Title : 
 
 defendant need not produce for inspection document of title, 236. 
 defence to action for land need not shew title unless, Sec, 210. 
 
 Tort : 
 
 transferring action of tort to County Court, 91-94. 
 
 costs when plaintiff recovers only £10, 91-92, 94; when only 40s., 92.
 
 IXDEX. 407 
 
 'Transfer of Causes : 
 
 to another division or judge, 73, 76-77, 290-2. 
 
 to county court, 91-94. 
 
 from inferior court when counterclaim, &c, beyond jurisdiction, 110. 
 
 district registry, to or from. See District Registry. 
 
 Transfer of Judges. See Divisions, &c. 
 
 Treasury : 
 
 interpretation of, 113. 
 
 powers as to fees, 141-3 ; as to paymaster-general, 96-7. 
 
 Trespass : 
 
 injunction against, 64 (65-66). 
 mortgagor suing for, 63. 
 
 Trial : 
 
 generally, 86-101, 248-264. 
 
 general note on mode of trial, 248-9. 
 
 place of, 248. 
 
 before whom, 248-250. 
 
 jury, right to, 86, 249, 250, 255-6. 
 
 order for trial without, 255-256 ; with, 256. 
 
 single judge to preside unless, &c, 250. 
 
 law as to jurymen unaltered, 99. 
 
 sittings to be held in London, &c, for trial by jury, 70. 
 assessors, trial with, 86, 248, 256. 
 referee, trial by, 256-264. See also Referees. 
 separate trials of separate causes of action, 200, 202. 
 
 of separate questions, 250, 255-6. 
 questions ordered for trial at assizes, &c, 256. 
 
 damages, trial as to, on default of appearance, 187 : of pleading, 223-230. 
 county court, sending case for trial to, generally, 91-94. 
 
 action of contract claiming only £50 ; 92-93-94. 
 
 action of tort when plaintiff too poor to pay costs, 93-94. 
 
 chancery claims within jurisdiction of County Court, 93-94. 
 
 other claims within jurisdiction of County Court, 91-94. 
 notice of trial, 249-252. 
 
 mode of triabin, 249-250. 
 
 form, &c, 250, 332. 
 
 length of notice, 250-1. 
 
 after entry for trial, notice cannot be, 251. 
 
 affidavit evidence, notice in cause to be tried upon, 267. 
 
 sittings, &c, construction as to time of, 251. 
 
 countermand of, 251. 
 
 third party, notice to, 200. 
 ■entry for trial, 89-90, 242, 251-2. 
 •copy of pleadings for judge, 252. 
 amendment of parties at trial, 197. 
 
 of pleadings at, 224. 
 non-appearance of either party at, 252. 
 postponement or adjournment of, 252. 
 evidence at trial, 99, 264-267. See Evidence. 
 
 oral examination in trial by jury especially preserved, 99. 
 jury to have issues submitted with full direction, clause requiring, 82 
 138, 254. 
 
 note thereon, 82-83, 254-255. 
 judgment, &c, at trial, 252, 253-5. 
 motion for new trial, 267-8, 271-2. 
 assizes. See Assizes. 
 sittings in London and Middlesex. See London and Middlesex.
 
 468 INDEX. 
 
 Trust : 
 
 execution of, assigned to Chancery division, 73-74. 
 
 parties to actions for execution of, 196. 
 action by or against trustee on behalf of trust, 195. 
 limitation as to trusts, 62. 
 
 payment into Court under trustee relief acts, 63. 
 special indorsement of liquidated claim on, 166. 
 
 Urgenot : 
 
 hearing in vacation of urgent cases, 69, 311-12. 
 vacation judges' power to act at other times, 312. 
 general power to shorten time for proceedings, 300. 
 
 Vacations : 
 
 generaUy, 68-70, 308-312. 
 
 Order in Council may be made for regulating, 68-69. 
 
 rules of court to be made for effectuating it, 68-69. 
 time at present appointed, 310-311. 
 single holidays, &c, 311-312. 
 
 computation of time when vacations, &c, intervene, 300. 
 pleadings in long vacation, 300. 
 
 vacation judges of High Court and Court of Appeal to be provided, 
 69 ; provision made as to High Court, 311 ; none made as to Court 
 of Appeal, 311. 
 
 power to act in intervals not called vacations, 312. 
 appeal, single judge of Court of Appeal may in vacation make interim 
 order as to, 84. 
 
 Vendors and Purchasers of Land : 
 
 specific performance between, assigned to Chancery division, 73-74. 
 
 Venue : 
 
 abolition of local venue in actions, 248. 
 
 Order in Council as to circuits, &c, may regulate venue, civil or 
 criminal, 139. 
 
 Verdict : 
 
 motion for new trial after, 267-8. 
 
 setting aside verdict obtained in absence of opponent, 252. 
 
 Visitor : 
 
 chancellor's jurisdiction as, 52. 
 
 lunacy, abolition of secretary to visitors in, 147. 
 
 Wages, action by Seamen : 
 
 affidavit before writ in action against ship, 171-2. 
 
 Ward. See Infant. 
 
 Waste : 
 
 equitable to be deemed also legal waste, 62. 
 injunction against, 64. 
 
 Westminster. See Middlesex. 
 
 Winding-up : 
 
 administration of assets as in bankruptcy, 61-62. 
 time for appeal in, 305.
 
 index. 4G9 
 
 Witness : 
 
 oral examination of, in trials by jury specially preserved, 99. 
 to be in general examined in open court, 264. 
 
 cross-examination of deponents, &c, 265, 267. 
 admissibility of depositions, &c, 99, 264-7. 
 attendance of, before referee, 263. 
 
 Wife. See Husband and Wife. 
 
 Writs : 
 
 dating and testing of writs in general, 164. 
 execution, writs of. See Execution, 
 inquiry, writ of, 187, 228-230. 
 
 Wbit op Summons : ^^-c— ' 
 generally, 158-181. 
 action to be commenced by, 158. 
 dating and testing, 164, 172. 
 place of issue, (88-90), 168-169. 
 mode of issue, 170-1. 
 paper and writing, 170-1. 
 entry in cause-book, 171. 
 division to be specified, 158. 
 
 notice to officer, 171. 
 judge in Chancery division to be specified, 73, SO, 170, (159). 
 concurrent writs, 172-3. 
 
 out of jurisdiction, leave for use, 160, 179-181. 
 affidavit before issue in probate actions, 171 ; in admiralty actions, 
 
 171-172. 
 indorsements on writ, 158-168. 
 
 address, 167-168. 
 indorsement of claim, 158-160, 165-7. 
 
 to be made before issue, 165. 
 
 precision not required, 165. 
 
 amendment, 165. 
 
 representative capacity of plaintiff or defendant, 165, 327. 
 
 probate actions, 166. 
 
 debt, 166. 
 
 special indorsement of debt, 166; effect, 185-6, 189-191, 217. 
 
 mandamus, injunction or receiver, how far indorsement necessary 
 for, 158-9. 
 
 account, 167 ; effect, 191-2. 
 
 forms in particular cases, 165, 318-327 : — 
 
 money claims, 319-21 ; general indorsement of debt and costs, (166), 
 321 ; special indorsement of debt, 326 ; damages, 321-4 ; miscella- 
 neous claims, including injunction and mandamus, 321-4 ; 
 chancery claims, 318-19; probate, 324; admiralty, 324-6; 
 character of parties, 327. 
 
 effect of using other forms, 159. 
 form of writ itself (159), 315. 
 
 in admiralty action in rem, 164, 316. 
 
 defendant out of jurisdiction, 160, 315-316. 
 duration and renewal, 172-174. 
 service of, 175, 181. 
 
 personal, 175 ; substituted, 175-179 ; notice in lieu of, 175. 
 
 husband and wife, 176 ; infant, 176 ; lunatic, 176 ; firms and 
 bodies, 176-8. 
 
 vacant possession of land, 178. 
 
 admiralty actions, 89-90, 178.
 
 470 INDEX. 
 
 Writ of Summons — continued. 
 service of — continued. 
 
 out of jurisdiction, leave for and mode of, 179-181. 
 
 new defendant, service on, 197-8, 199. 
 
 indorsement of service, 179. 
 
 affidavit of service, 179. 
 firm, disclosure of partners suing as, 173-174. 
 solicitor's name used without authority, 173. 
 bills of exchange, summary procedure on, 160-164. 
 
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 Act and Eules ; with an Index to the Bankruptcy, Debtors, Bank- 
 ruptcy Eepeal, and Insolvent Court Acts, 1869, and the various 
 Eules made under those Acts ; to which is added an Alphabetical 
 List of the Forms published with the Eules. By FEANK E. 
 PAEKEK, one, &c. Folio. 1870. 5s. 
 
 Scott's Costs in Bankruptcy. — Vide" Costs." 
 
 Smith's Manual on Bankruptcy. — A Manual relating 
 to Bankruptcy, Insolvency, and Imprisonment for Debt ; comprising 
 the New Statute Law verbatim, in a consolidated and readable form. 
 With the Eules, a Copious Index, and a Supplement of Decisions. 
 By JOSIAH W. SMITH, Esq., B.C.L., Q.C., Judge of County 
 Courts. 12mo. 1873. 10s. 
 
 *** The Supplement may be had separately, nett, 2s. 6d. 
 
 Williams' New Law and Practice in Bank- 
 ruptcy, comprising the Bankruptcy Act, the Debtors Act, and 
 the Bankruptcy Eepeal and Insolvent Court Act of 1869, and the 
 Eules and Forms made under those Acts, with a comparative Sum- 
 mary of the Cases Decided under the former Laws. By BO LAND 
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 VAUGHAN WILLIAMS, Esq., of the Inner Temple, Barristers-at- 
 Law. Second Edition. (Preparing for Publication.) 
 
 BILLS OF EXCHANGE— Chitty on Bills of Exchange 
 and Promissory Notes.— A Treatise on Bills of Exchange, 
 Promissory Notes, Cheques on Bankers, Bankers' Cash Notes, and 
 Bank Notes ; with Eeferences to the Law of Scotland, France, and 
 America. The Tenth Edition. By JOHN A. EUSSELL, LL.B., 
 and DAVID MACLACHLAN, M.A., Barristers-at-Law. Eoyal 
 8vo. 1859. II. 8s. 
 
 BILLS OF SALE — Millar and Collier's Bills of Sale.— A 
 
 Treatise on Bills of Sale, with an Appendix containing the Acts for 
 the Registration of Bills of Sale, 17 & 18 Vict. c. 36, and 29 & 30 
 Vict. c. 96, and Precedents, &c. Third Edition. By F. C. J. 
 MILLAE, Barrister-at-Law. 12mo. 1871. 10s. 6d. 
 
 BOOK-KEEPING.— Bedford's Intermediate Examina- 
 tion Guide to Book-keeping.— 12mo. 1872. 
 
 Nett, Is. 
 
 CANAL TRAFFIC ACT.— Lely's Railway and Canal Traf- 
 fic Act, 1873. — And other Eailway and Canal Statutes ; with 
 the General Orders, Forms, and Table of Fees. Post 8vo. 1873. 8s. 
 
 CARRIERS.— Browne on Carriers.— A Treatise on the Law of 
 Carriers of Goods and Passengers by Land and Water. Willi 
 References to the most recent American Decisions. By J. H. 
 
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 CARRlERS-Con/m««i. 
 
 BALFOUR BROWXE, Esq., of the Middle Temple, Barrister-afe. 
 Law, Registrar to the Railway Commission. 8vo. 1873. 18s, 
 
 CHANCERY and Vide " EQUITY.'' 
 
 Daniell's Chancery Practice.— The Practice of the High 
 Court of Chancery, with some observations on the Pleadings in that 
 Court. By the late EDMUXD ROBERT DAXIELL, Barrister-at- 
 Law. Fifth Edition, by LEOXARD FIELD and EDWARD 
 CLEXNELL DUXX, Barristers-at-Law; with the assistance of 
 JOHX BIDDLE, of the Master of the Rolls' Chambers. 2 vols. 
 8vo. 1871. 41. 4s. 
 
 Supplemental volume to the above. 
 The Practice of the High Court of Chancery and the Court of Chan- 
 cery (Funds) Act, 1S72, together with Appendices containing the 
 Act, and the Rules and Orders thereunder, and a Collection of 
 Forms. By LEOXARD FIELD and EDWARD CLEXXELL 
 DUXN, Barristers-at-Law. Svo. 1870. 8s. 6d, 
 
 It is the merit of Mr. Daniell's ' Practice ' that it takes nothing as known. Tha 
 reader i3 minutely instructed what he is to do aud how he is to do it, and if he closely 
 follows his guide he cannot go wrong.'' — Law Times. 
 
 "This completes the new edition of Daniell's Chancery Practice, whioh has become in 
 equity what Tidd was in the common law — emphatically the Practice. With successive 
 editions it has received successive improvements, and of course enlargements. Its merits 
 are well known to every reader, and there are few practitioners in the equity courts who 
 have not used it as their test-book for many years." — Law Timet. 
 
 Daniell's Chancery Forms. — Forms and Precedents of 
 Pleadings and Proceedings in the High Court of Chancery, with 
 Practical Notes and Observations, and References to the Fourth 
 Edition of Daniell's Chancery Practice ; and incorporating the Forms 
 in Braithwaite's Record and Writ Practice. By LEOXARD 
 FIELD and EDWARD CLEXXELL DUXX, Barristers-at-Law, 
 and JOHX BIDDLE, of the Master of the Rolls' Chambers. 
 Second Edition. By JOHX BIDDLE. Svo. 1871. 11. 12s. 
 
 Jarman's New Chancery Practice. — The Practice 
 of the High Court of Chancery in the Conduct of Suits by Bill 
 or Original Summons, including Proceedings in the Judges' Cham- 
 bers, Forms of Costs, and numerous other Forms. The Practice 
 relating to Special Cases and Petitions of Right. Acts concerning 
 Trustees, Executors, Administrators, and Mortgagees, including inter 
 alia the Trustees Act, and the Trustees Relief Acts. Acts relating 
 to Charitable Trusts. The Settled Estates Acts and the Infants' 
 Marriage Settlement Acts, with the General Orders and Decisions 
 of the Court thereunder, and a copious index. By HEXRY JAR- 
 MAX. The Third Edition, much enlarged. 12mo. 1864. 11. 4s. 
 
 Morgan's Chancery Acts and Orders. — The Statutes, 
 General Orders, and Regulations relating to the Practice, Pleading, 
 and Jurisdiction of the Court of Chancery ; with Copious Xotes, 
 containing a Summary of every reported Decision thereon. Fourth 
 Edition, considerablv enlarged. By GEORGE OSBORXE MOR- 
 GAX, M.A., and CHALOXER W. CHUTE, of Lincoln's Inn, 
 Barristers-at-Law. 8vo. 1868. 11. 10s. 
 
 "■We have noticed the former Editions of this useful work as they have successively 
 appeared. This one has added the many statutes and orders that have been promul- 
 gated since the publication of its predecessors. All the cases have been noted, and the 
 Index, a most important portion of such a volume, is constructed with great care, aud 
 is unusually copious. It will now be required by those who practise in the County 
 Courts."— Law Times, Jan. 18, 1868. 
 
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 CHANCERY.— Continued. 
 
 Morgan and Davey's Chancery Costs.— Vide "Costs. 
 
 Orders and Rules of the High Court of Chan- 
 eery. — Published by authority as issued. 
 
 Smith's Chancery. — The Practice of the Court of Chancery, 
 including the Joint Stock Companies' Acts, with an Appendix of 
 Forms and Precedents of Costs, adapted to the last New Orders. 
 By JOHN SIDNEY SMITH, Esq., M.A., Barrister-at-Law. The 
 Seventh Edition, revised and enlarged by the Author and ALFBED 
 SMITH, Esq., M. A., Barrister-at-Law. 2 vols. 8vo. 1862. 31. 3s.. 
 
 CHURCH AND CLERGY.— Phillimore.— F^e"EcclesiasticalLaw." 
 
 Stephen's Laws relating to the Clergy.— 2 vols. 
 Eoyal 8vo. 1848. 21. 18s. 
 
 CIVIL LAW -Bowyer's Commentaries on the Modern 
 Civii Law.— By Sir GEORGE BOWYEB, D.C.L., Royal 
 8vo. 1848. 18s. 
 
 Bowyer's Introduction to the Study and Use 
 of the Civil Law.— By Sir GEORGE BOWYER, D.C.L. 
 Royal 8vo. 1874. 5s 
 
 Cumin's Manual of Civil Law.— A Manual of 
 
 Civil Law, containing a Translation of, and Commentary on, the 
 Fragments of the XII. Tables, and the Institutes of Justinian ; the 
 Text of the Institutes of Gains and Justinian arranged in parallel 
 columns ; and the Text of the Fragments of Ulpian, and of Selec- 
 tions from Paul's Receptee Sententia?. By P. CUMIN, M.A., 
 Barrister-at-Law. Second Edition, enlarged. Medium, Svo. 1865. 
 
 18s. 
 Greene.— Vide "Roman Law." 
 
 Phillimore.— Vide " Roman Law." 
 
 COLLISIONS.— Lowndes' Admiralty Lav/ of Collisions 
 
 at Sea.— 8vo. 1867. 7s. 6d. 
 
 COLONIAL LAW.— Clark's Colonial Law.— A Summary of 
 Colonial Law and Practice of Appeals from the Plantations. 8vo. 
 1834. 1?. 4s. 
 
 Vanderlinden.— Vide "Dutch Law." 
 
 COMMENTARIES ON THE LAWS OF ENGLAND.— Bowyer.— 
 
 Vide "Constitutional Law." 
 
 Broom and Hadley's Commentaries on the 
 
 Laws of England.— By HERBERT BROOM, LL.D., of 
 
 the Inner Temj ile, Barrister-at-Law; Reader in Common Law to 
 
 the Inns of Court : Author of " A Selection of Legal Maxims," 
 
 &c. ; and EDWARD A. HADLEY, M.A., of Lincoln's Inn, 
 
 Barrister-at-Law ; late Fellow of Trinity Coll., Cambridge. 4 vols. 
 
 Svo. 1869. 31. 3s. 
 
 " Messrs. Broom and Iladlcy Lave been unsparing in tlicir editorial labours. There 
 
 are abundant reference notes, bo that the diligent student can consult I tie authorities 
 
 il Ik; is so disposed. Jii idi s i table "i contents, there arc an appendix and a 
 
 copious index tc each volume. Nothing that could be done to make the work useful 
 
 and handy has been kit undone.'' — Law Journal, .Nov. 19, 1869. 
 
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 COMMERCIAL LAW.— Levi's International Commercial 
 Law. — Being the Principles of Mercantile Law of the following 
 and others Countries — viz. : England, Scotland, Ireland, British 
 India, British Colonies, Austria, Belgium, Brazil, Buenos Ayres, Den- 
 mark, France, Germany, Greece, Hans Towns, Italy, Netherlands, 
 Norway, Portugal, Prussia, Russia, Spain, Sweden, Switzerland, 
 United States, Wlirtemburg. By LEONE LEV'_, Esq., F.S.A., 
 F.S.8., of Lincoln's Inn, Barrister-at-Law, Professor of the Principles 
 and Practice of Commerce at King's College, London, &c. Second 
 Edition. 2 vols. Royal 8vo. 1863. 11. 15s. 
 
 Smith. — Vide "Mercantile Law." 
 
 COMMON LAW.— Archtaold's Practice of the Court of 
 Queen's Bench in Personal Actions and Eject- 
 ment.— By THOMAS CHITTY, Esq. New Edition. By 
 PRENTICE. Including the Practice of the Courts of Common 
 Pleas and Exchequer. A New and Improved Edition (the Twelfth), 
 embracing the New Pules and Common Law Procedure Acts, 1852, 
 1854, and 1860. By SAMUEL PRENTICE, Esq., Barrister-at- 
 Law. 2 vols. Royal 12mo. 1866. 21. 12s. Qd. 
 
 And see " Forms,"— CHITTY. 
 Cole.— Vide "Oaths." 
 Fisher.— Vide " Dige?t3," 
 Smith's Manual of Common Law.— A Manual of 
 
 Common Law, comprising the fundamental principles and the points 
 most usually occurring in daily life and practice ; for the Prac- 
 titioner, Student, and General Reader. By JOSIAH W. SMITH, 
 B.C.L., Q.C., Judge of County Courts. Sixth Edition. 12mo. 
 1874. 14s. 
 
 •' Admirably conceived and executed Eminently lucid and concise . . . 
 
 . . . A pocket-book of pith and essence of common law." — Leguleian. 
 
 " Mr. Josiah Smith possesses, in an eminent degree, that kind of logical skill which exhibits 
 itself in the simple arrangement, but exhaustive division, of wide and complicated subjects, 
 and is, moreover, gifted with the rare powe; of accurato condensation." — Solicitors' Journal, 
 April 30, 1864. 
 
 " To more advanced students, and to the practitioner, whether barrister or attorney, we 
 
 think the 'Manual of Common Law ' a most useful aud convenient companion 
 
 It is compiled with the scrupulous caro and the ability which distinguish Mr. Smith's 
 previous works." — JurUt, July 30, 1864. 
 
 " Smith's Manuals of Common Law and Equity must be resorted to as the open sesames 
 to the learning requisite in the Final Examination of the Incorporated Law Society."— From 
 dv.. Uolut's Lecture, p. 11. 
 
 COMMONS AND INCLOSURES.— Cooke on Inclosures.— 
 
 The Acts for facilitating the Inclosure of Commons in England 
 and Wales ; with a Treatise on the Law of Rights of Commons, in 
 reference to these Acts, &c, &c. With Forms as settled by the 
 Inclosure Commissioners. By G. WINGROVE COOKE, Esq., 
 Barrister-at-Law. Fourth Edition. 12mo. 1S64. 16s. 
 
 Finlaison on Enclosure of Commons, Waste 
 Lands, &C— 8vo. 1867. Sewed. Nett, 2s. 6d. 
 
 Woolryeh's Treatise on the Law of the Rights 
 Of Common.— Second Edition. 8vo. 1S50. 16s. 
 
 CONSTITUTIONAL LAW.-Bowyer's Commentaries on 
 the Constitutional Law of England. — By Sir 
 GEORGE BO WYER, D.C.L. Second Edition. Hoyal 8vo. 1S46 
 
 11. 2s. 
 
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 CONTRACTS.— Addison on Contracts.— Being a Treatise on 
 the Law of Contracts. By C. G. ADDISON, Esq,, Author of 
 the " Law of Torts." Seventh Edition. By L. W. CAVE, one 
 of Her Majesty's Counsel, Recorder of Lincoln. Royal 8vo, 
 1875. 11. 18s. 
 
 "At present this is by far the best book upon the Law of Contract possessed by the 
 Profession, and it is a thoroughly practical book." — Law Times. 
 
 " We cannot speak too highly of the great amount of well-arranged information which 
 is to be found in this second book. It is a magazine of learnins which the legal practi- 
 tioner will find of very great value." — Solicitors' Journal, March 20, 1875. 
 
 " Mr. Cave, aided by Mr. Horace Smith, has done more than sustain the reputation of 
 this treatise— he has greatly added to it." — Law Journal, March 27th, 1875. 
 
 " Mr. Cave's edition of Addison must prove a great acquisition to every lawyer's library. 
 To the practitioner the last book on the stamp laws will prove of great service." — Law 
 Times, April 3, 1S75. 
 
 " Mr. Cave has not confined himself to simply noting up the cases. He has, he tells us in 
 a somewhat lengthy preface, 'ventured to make very considerable alterations in the 
 arrangement of the work.' " — Law Times, April 3, 1875. 
 
 Leake Oil Contracts. — The Elements of the Law of Con- 
 tracts. Second Edition. By STEPHEN MARTIN LEAKE, 
 
 of the Middle Temple, Barrister-at-Law. (Preparing for publication). 
 
 Pollock's Principles of Contract at Law and in 
 Equity ; being a Treatise on the General Principles relating to the 
 Validity of Agreements, &c. By FREDERICK POLLOCK, 
 Esq., of Lincoln's Inn, Barrister-at-Law. (Ready in November). 
 
 Smith's Law of Contracts. — The Law of Contracts, 
 By the late JOHN WILLIAM SMITH, Esq., Author of " Leading 
 Cases," "A Treatise on Mercantile Law," &c. Sixth Edition. 
 By VINCENT T. THOMPSON, Esq., Barrister-at-Law. 8vo. 
 1874. 16s. 
 
 "We hail with great satisfaction a new Edition of Smith's 'Lectures on tho Law of 
 Contracts.' Ever since they were published, these Lectures have been most popular with 
 all branches of the Profession." — Law Magazine. 
 
 CONVEYANCINC.-Greenwood's Manual of Convey- 
 
 aneillCf. — A Manual of the Practice of Conveyancing, showing 
 the present Practice relating to the daily routine of Conveyancing 
 in Solicitors' Offices. To which are added Concise Common Forms 
 and Precedents in Conveyancing ; Conditions of Sale, Conveyances, 
 and all other Assurances in constant use. Fourth Edition. By 
 H. N. CAPEL, Esq., LL.B. (In preparation.) 
 
 "The information under these heads is just of that ordinary practical kind which is 
 learned from experience, and is not to be gathered from treatises. 
 
 " The work is well done, and will bo very useful to the class for whom it is intended." — 
 Jurist, May 3, 1 856. 
 
 " It is an educational as well as practical compendium, and it conveys that special kind 
 of information which the student has generally the greatest difficulty in discovering from 
 books. 
 
 "A careful study of these pages would probably arm a dilligent clerk with as much 
 useful knowledge as he might otherwise take years of desultory questioning and observing 
 
 to acquire All that can be done to put an old head upon young shoulders ia 
 
 effected (so far as its own subject is concerned) by Mr. Greenwood's lucid and business- 
 like Manual." — Solicitors' Journal. 
 
 Housman's Precedents in Conveyancing.— A 
 
 Selection of Precedents in Conveyancing ; designed as a Hand-book 
 of Forms in frequent use, with Practical Notes, including Notes on 
 the Conveyancing Act of 1860, and the adoption of its provisions in 
 actual practice. By FRANCIS HOUSMAN, Barrister-at-Law. 
 8vo. 1861. 51a. 
 
 *** All standard Law Works are kept in Stock, in law calf and other Undiwjs,
 
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 CONVEYANCING.-Ow»«»h«1. . 
 
 Prideaux's Precedents in Conveyancing. — With 
 
 Dissertations on its Law and Practice. Seventh Edition. By 
 FREDERICK PRIDE AUX and JOHN WHITCOMBE, Esqrs., 
 Barristers-at-Law. 2 vols. Boyal Svo. 1873. 21. 3s. 
 
 " We really can hardly imagine a conveyancer being required to prepare any instrument 
 which he will not And sketched out in the work under notice . . . We can cordialiy 
 recommend the hook to both branches of the Profession. It is cheaper and more por- 
 table than Mr. Davidson's valuable work, and we believe quite as useful.'' — Law Journal. 
 "This is a revised edition of a work to which the most favourable criticism cannot add 
 reputation." — Law Tunes. 
 
 Smith.— Vide " Real Property." 
 
 CONVICTIONS.— Paley on Summary Convictions.— 
 Fifth Edition. By H. T. J. MACNAMARA, Esq., Barrister-at- 
 Law. Svo. 1866. 11. Is. 
 
 " Great pains have been evidently taken to render the present edition very complete. It is 
 enriched with several excellent notes besides the one to which we have already called 
 attention ; amongst these is one on the subject of words usedin a statute being compulsory 
 or only directory, and another in which there is a review of decisions under the Masters 
 and Servants' Act (4 G This edition, of what may be considered a standard 
 
 work, incorporates all the statutes and decisions from the date of the last edition, and, as 
 far as we have been able to examine (and we have put it to some test), the work has been 
 prepared with great care and accuracy. It is a good, practical, and valuable treatise, 
 which we can safely recommend to the profession. " — The Law Journal. 
 
 " ' Paley on Convictions' has enjoyed a high reputation and extensive popularity. 
 Devoted exclusively to the jurisdictic n in summary convictions, it collects and conveys to 
 the magistrate and his clerk the fullest and most accurate information as to the practice 
 to be observed in the hearing of charges which the magistrate is empowered to dispose of 
 summarily. Ten years have elapsed since the last edition. During the Interval many 
 important changes have been made in the law, and there has been a general call for a new 
 editiou. No better man could have been found for such a work than Mr. ilacnamara, 
 &c." — Law Times, May 5, 1866. 
 
 COPYHOLDS.-Cuddon's Copyhold Acts.— A succinct Trea- 
 tise on the Copyhold Acts, the practical Working and Effect thereof, 
 and the mode of Procedure under the same for effecting Enfranchise- 
 ment. By JAMES CUDDON, Esq., Barrister-atXaw. Royal 
 Svo. 1865. 10s. 6d. 
 
 COPYRIGHT.-Phillips' Law of Copyright.— The Law of 
 Copyright in Works of Literature and Art, and in the Appli- 
 cation of Designs. With the Statutes relating thereto. B 
 CHARLES PALMER PHILLIPS, of Lincoln's Inn, Esq., 
 Barrister-at-Law. Svo. i 12s. 
 
 "Mr. Phillips has shown not only great diligence in collecting cases bearing upon the 
 various topics which he has treated, but considerable judgment in the manner in which he 
 has dealt with them. He has spared no pains to make his work reliable as a legal text 
 book, and at the same time equally uselul to publishers, authors, artists, and other persons 
 who are interested in works ot literature, art, or design. In a word, such a book has long 
 been wanted, and Mr. Phillips has given abundant proof of his ability to meet the 
 desideratum."— Solicitor^ Journal, Nov. 14, 1S63. 
 
 " Mr. Phillips' work is at once an able law-book and a lucid treatise, in a popular form, 
 on the rights of authors and artists. The wants and interests of the legal practitioners 
 are consulted by a careful collection and discussior of all the authorities, while the non- 
 professional reader will find in the book a well-written and perfectly intelligible statement 
 of the law upon the matter of which it treats.'' — Jurist, Jan. 9, 1864. 
 
 CORONERS.— Jervis on the Office and Duties of 
 Coroners. — With Porms and Precedents. Third Edition. By 
 C. W. LOYESY, Esq., of the Middle Temple, Barrister-at-Law. 
 12mo. 1866. 12s. 
 
 COSTS.— Carew's Precedents of Bills of Costs, for 
 
 obtaining Grants of Probate and Letters of Administration iu the 
 Principal Registry of the Court of Probate. 1869. 5s. 
 
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 COSTS. — Continued. 
 
 Morgan ana Davey's Treatise on Costs in 
 Chancery.— By GEORGE OSBORNE MORGAN, M.A., 
 
 Barrister-at-Law, late Stowell Fellow of Universitv College, Oxford, 
 and Eldon Scholar ; and HORACE DAVEY, M.A., Barrister-at- 
 Law, late Fellow of University College, Oxford, and Eldon Scholar. 
 With an Appendix, containing Forms and Precedents of Bills of 
 Costs. 8vo. 1865. 11. Is 
 
 Scott's Costs in the Superior Courts of Com- 
 mon Law, and Probate and Divorce, and in Conveyancing; 
 also in Bankruptcy (Act of 1869). Proceedings in the Crown Office, 
 on Circuit and at Sessions, and in the County Court ; together with 
 Costs of Interlocutory Rules and Orders under the Common Law 
 Procedure Acts 1852 and 1854, Bills of Exchange Act 1855, &c, 
 &c, and the Railway and Canal Traffic Act, 1854. With an 
 Appendix, containing Costs under Parliamentary Elections Act, 
 1863. By JOHN SCOTT, Esq., of the Inner Temple, Barrister-at- 
 Law. Third Edition. Royal 12mo. 1868-73. 24s. 
 
 %* The Supplement, containing " Bankruptcy Costs (Act of 
 1869)," may be had separately. Nett, s. 
 
 " Mr. Scott's work is well known to the profession. It is an extensive collection of 
 taxed bills of costs in all branches of practice, supplied to him probably by the taxing 
 masters. Such a work speaks for itself. Its obvious utility is its best recommenda- 
 tion." — Law Times, 
 
 " ' Taxation of Costs. '—In re Foster — Vice-Chancellor Wood said that Mr. Scott's 
 book was a competent authority upon the subject." — Times. 
 
 Webster's Parliamentary Costs. — Private Bills, 
 Election Petitions, Appeals, House of Lords. By EDWARD 
 WEBSTER, Esq., of the Taxing Office, House of Commons, and of 
 the Examiners' Office, House of Lords and House of Commons. 
 Third Edition. Post 8vo. 1867. 20s. 
 
 "The object of this work is to give the scale of costs allowed to Solicitors in relation 
 to private bills before Parliament, the conduct of Election Petitions and Appeal Causes, 
 and the Allowance to Witnesses. The connection of the author with the Taxing- Office 
 of the House of Commons gives authority to the work, which has been compiled with 
 some skill, and contains a very useful Index, by which the costs allowed for attendances, 
 time, drawing, copying, and perusing, in the several parliamentary proceedings may be 
 easily ascertained." — Solicitors' Journal. 
 
 COUNTY COURTS.— Falconer on County Courts, Local 
 
 Courts of Record, and on the changes proposed to be made in such 
 Courts in the Second Report of the Judicature Commissioners. By 
 THOMAS FALCONER, Esq., one of the Judges of County Courts. 
 8vo. 1873. 5s. 6d. 
 
 Will's County Courts Act, 1867.— With Notes, New 
 Rules, and Forms ; Practice in Discovery, Interrogatories, Attach- 
 ment of Debts, Equitable Defences, &c. By J. SHIRESS WILL, 
 Esq., Barrister-at-Law. 8vo. 1868. 15s. 
 
 CRIMINAL LAW,— Archbold's Pleading and Evidence 
 in Criminal Cases. — With the Statutes, Precedents of 
 Indictments, &c., and the Evidence ni cessary t<> support them. By 
 JOHN JERVIS, Esq. (late Lord Chief Justice of Her Majesty's 
 Court of Common Pleas). Eighteenth Edition, including- the 
 Practice in Criminal Proceedings by Indictment. By WILLIAM 
 BRUCE, of the Middle Temple, Esq., Barrister-at-Law, and 
 Stipendiary Magistrate for the Borough of Leeds. Royal 12mo. 
 1875. 11. lis. 6d. 
 
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 A 3
 
 10 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 CRIMINAL LAW. -Continued, 
 
 A nderson's Digest of Bankruptcy and Criminal 
 Law.— By C. H. ANDEKSON, Esq., Barrister-at-Law, of the 
 Inner Temple. 8vo. 1867. Is. Qd. 
 
 Cole on Criminal Informations and Quo War- 
 ranto.— By W. R. COLE, Esq., Barrister-at-Law. 12mo. 1843. 
 
 12s. 
 
 Greaves' Criminal Law Consolidation and 
 Amendment Acts of the 24 & 25 Viet.— With 
 Notes, Observations, and Forms for Summary Proceedings. By 
 CHAELES SPRENGEL GREAVES, Esq., one of Her Majesty's 
 Counsel, who prepared the Bills and attended the Select Committees 
 of both Houses of Parliament to which the Bills were referred. 
 Second Edition. Post 8vo. 1862. 16s. 
 
 Roscoe's Digest of the Law of Evidence in 
 Criminal Cases.— Eighth Edition. By HORACE SMITH, 
 Esq., Barrister-at-Law. Royal 12mo. 1874. 1Z. lis. 6d. 
 
 Russell on Crimes and Misdemeanors.— Intended 
 
 as a Court and Circuit Companion. Fourth Edition. By 
 
 CHARLES SPREXGEL GREAVES, Esq., one of Her Majesty's 
 
 CounseL 3 vols. Royal 8vo. 1865. 51. 15s. Qd. 
 
 In this Edition of " Russell " the Editor has endeavoured to make such a statement 
 
 in each case of the facts, the decision, and the grounds of it, wherever they appear, as 
 
 may enable the reader to understand what the decision really was ; and, although this 
 
 course has necessarily much increased the size of the work, yet it renders it much more 
 
 useful, especially to all who may not be in a position to refer to the original reports of 
 
 the cases. This course is the same as was adopted in the last Edition, which was found 
 
 in practice to be so very useful whenever any question suddenly arose in Court, before 
 
 Magistrates, or elsewhere. 
 
 This treatise is so much more copious than any other upon all the subjects contained 
 in it, that it affords by far the best means of acquiring a knowledge of the Criminal Law 
 in general, or of any offence in particular ; so that it will be found peculiarly useful as 
 well to those who wish to obtain a complete knowledge of that law, as to those who 
 desire to be informed on any portion of it as occasion may require. 
 
 This work also contains a very complete treatise on the Law of Evidence in Criminal 
 Cases, and in it the manner of taking the depositions of witnesses, and the examinations 
 of prisoners before magistrates, is fully explained. 
 
 "What better Digest of Criminal Law could we possibly hope for than 'Russell on 
 Crimes?' " — Mr. Fitzjames Stephen's Speech on Codification, Dec, 1872. 
 
 Thring's Criminal Law of the Navy.— The Crimi- 
 nal Law of the Navy, comprising an Introductory Sketch of 
 the Early State and Discipline of the Navy ; the Naval Discipline 
 Act of 1860, with Notes ; Criminal Offences and their Punishment ; 
 the Constitution and Jurisdiction of Courts-Martial ; the Forms of 
 Procedure, and Law of Evidence applicable to Trials by Courts- 
 Martial, with the New Regulations of the Admiralty, and a copious 
 Index. By THEODORE THRING, of the Middle Temple, Esq., 
 Barrister-at-Law. 12mo. 1861. 8s. 6d. 
 
 DICTIONARY. — Wharton's Law Lexicon. — A Law Lexicon, 
 
 or Dictionary of Jurisprudence, explaining the Technical Words and 
 Phrases employed in the several Departments of English Law ; in- 
 cluding the various Legal Terms used in Commercial Business, 
 together with an Explanatory as well as Literal Translation of the 
 Latin Maxims contained in the Writings of the Ancient and Modern 
 Commentators. Fifth Edition. Revised and enlarged by J. 
 SHIRESS WILL, Esq., of the Middle Temple, Barrister-at-Law. 
 Super royal 8vo. 1872. Nett 21. 2s. 
 
 %* All standard Laio Works are kept in Stock, in law calf and other bindings.
 
 119, CHANCERY LANE, LONDON, W.C. 11 
 
 DIARY.— Lawyer's Companion (The), Diary, and Law- 
 Directory. — For the use of the Legal Profession, Public Com- 
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 DIGESTS.— Anderson. — Vide "Criminal Law." 
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 Chitty's Equity Index. — Cbitty's Index to all the Reported 
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 1847. 9s. 
 
 DUTCH LAW.— Vanderlinden's Institutes of the Laws 
 
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 INCLOSURES.— Vide " Commons." 
 
 INDIAN LAW — Montriou; the Hindu Will of Bengal 
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 JUDICATURE ACTS.— Clowes' Compendious Index to 
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 Stone. — Vide " Petty Sessions." 
 
 LAND DRAINAGE.— Thring's Land Drainage Act.— With 
 
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 LAW REPORTS.— ^de pages 26-7. 
 LAWYER'S COMPANION.— Vide "Diary." 
 
 LEGACIES.— Roper's Treatise on the Law of Lega- 
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 LEXICON Vide "Dictionary." 
 
 LICENSINC— Lely and Foulkes' Licensing Acts, 
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 most of the sections of the Act of last Session notes are added. These notes are usually 
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 Solicitors' Journal, Oct. 10, 1S74. 
 
 LIEN.— Cross' Treatise on the Law of Lien and 
 Stoppage in Transitu.— 8vo. 1840. 15s. 
 
 LIGHTS — Woolryeh's Practical Treatise on the Law 
 of Window Lights. — Second Edition. 12mo. 1864. Gs. 
 
 LUNACY Elmer's Lunacy Practice.— Fifth Edition. By 
 
 JOSEPH ELMER, of the Office of the Masters in Lunacy. 8vo. 
 1872. 21s. 
 
 MAGISTERIAL LAW.— Burn.— Vide " Justice of Peace." 
 Paley. — Vide " Convictions." 
 Pritchard. — Vide " Quarter Sessions." 
 Stone. — Vide " Petty Sessions." 
 
 MAINTENANCE AND CHAMPERTY. — Tapp on Main- 
 tenance and Champerty. — An Inquiry into the present 
 state of the Law of Maintenance and Champerty, principally as 
 affecting Contracts. By WM. JOHN TAPP, Esq. , of Lincoln's Inn, 
 Barrister-atJ-iaw. 12mo. 1861. 4s. 6d. 
 
 MANDAMUS. — Tapping on Mandamus. — The Law and 
 Practice of the High Prerogative Writ of Mandamus as it obtains 
 both in England and Ireland. Royal 8vo. 1848. 11. Is. 
 
 MARINE INSURANCE — Vide " Insurance." 
 
 MARTIAL LAW — Finlason's Treatise on Martial Law, 
 as allowed by the Law of England in time of Rebellion ; with 
 Practical Illustrations drawn from the Official Documents in the 
 Jamaica Case, and the Evidence taken by the Royal Commission of 
 Enquiry, with Comments Constitutional and Legal. By W. P. 
 FINLASON, Esq., Barrister-at-Law. 8vo. 1866. 12s. 
 
 MERCANTILE LAW— Brooke— Vide "Notary." 
 Russell. — Vide "Agency." 
 
 Smith's Mercantile Law. — A Compendium of Mercantile 
 Law. By the late JOHN WILLIAM SMITH, Esq. Eighth 
 Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., 
 one of Her Majesty's Counsel. Royal 8vo. 1871. 1/. 16s. 
 
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 MERCANTILE LAW -Continued. 
 
 Tudor's Selection of Leading Cases on Mer- 
 cantile and Maritime Law.— With Notes. By 0. D. 
 TUDOR, Esq., Barrister-at-Law. Second Edition. Royal 8vo. 
 1868. 11. 18s. 
 
 MINES.— Rogers' Law relating to Mines, Minerals, 
 and Quarries in Great Britain and Ireland; 
 with a Summary of the Laws of Foreign States and Practical 
 Directions for obtaining Government Grants to work Foreign Mines. 
 By ARUNDEL ROGERS, Esq., Barrister-at-Law. Svo. 1S64. 
 
 11. 10s. 
 
 MORTCAGE Coote's Treatise on the Lav/ of Mort- 
 gage.— Third Edition. Royal Svo. 1850. Nctt, 11. 
 
 MUNICIPAL ELECTIONS .-Vide "Ballot." 
 
 NAVAL LAW Thring.— Vide "Criminal Law." 
 
 NISI PRIUS.— Roscoe's Digest of the Law of Evidence 
 on the Trial of Actions at Nisi Prius.— Thirteenth 
 Edition. By JOHN DAY, one of Her Majesty's Counsel, and 
 MAURICE POWELL, Barrister-at-Law. Royal 12mo. 1875. 21. 
 
 (Bound in one thick volume calf or circuit, 5s. Gd., or in two convenient roh. 
 calf or circuit, 10s. nctt extra.) 
 
 " Eoscce's Digest Las always been a work of reference absolutely necessary to the 
 com iron law practitioner; it retains this ] osition now under very greatly improved 
 conditions, and we are sure that the profession will thoroughly appreciate the intelligent 
 labour, which has been bestowed upon the work." — Law Times, July 24th, 1875. 
 
 Selwyn's Abridgment of the Law of Nisi 
 Prius.— Thirteenth Edition. By DAVID KEANE, Q.C., 
 Recorder of Bedford, and CHARLES T. SMITH, M.A., one of the 
 Judges of the Supreme Court of the Cape of Good Hope. 2 vols. 
 Royal Svo. 1869. 21. 16s. 
 
 NOTARY.— Brooke's Treatise on the Office and Prac- 
 tice of a Notary of England. — With a full collection of 
 Precedents. Third Edition. By LEONE LEVI, Esq., F.S.A., of 
 Lincoln's Inn, Barrister-at-Law, Professor of the Principles and 
 Practice of Commerce in KiDg's College, London, &c, &c. 8vo. 
 l Q 'i7. 21s. 
 
 NUISANCES — Fitzgerald.— Vide "Public Health." 
 
 OATHS.— Braithwaite's Oaths in Chancery.— A Manual 
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 1 ieing a collection of officially recognised Forms of Jurats and Oaths, 
 with Explanatory Notes and Observations. Second Edition. By 
 THOMAS W. BEAITHWAITE, of the Record and Writ Clerks' 
 Office. Foolscap 8vo. 1864. 3s. 6(/. 
 
 Cole's (R.) Oaths in Common Law.— By ROBERT 
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 appended Explanatory Notes and Observations by Mr. Cole, which will be found of prac- 
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 PAWNBROKERS.— Turner's Pawnbrokers' Act, 1872.— 
 With Explanatory Notes. By FRANCIS TURNER, Esq., Bar- 
 rister-at-Law, Author of the "Contract of Pawn." 12mo. 1873. 
 
 Nett 2s. 
 
 PERSONAL PROPERTY. — Smith's Real and Personal 
 Property. — A Compendium of the Law of Real and Personal 
 Property Primarily Connected with Conveyancing ; Designed as a 
 Second Book for Students, and as a Digest of the most useful 
 Learning for Practitioners. By JOSIAH W. SMITH, B.C.L., 
 Q.C., Judge of County Courts. Fourth Edition. 2 vols. 8vo 
 1870. 11. 18a. 
 
 PETTY SESSIONS.— Stone's Petty Sessions Practice — 
 
 With the Statutes, a list of Summary Convictions, and an Appendix 
 of Forms. Seventh Edition. By THOMAS BELL, and LEWIS 
 W. CAVE, of the Inner Temple, Escprs., Barristers-at-Law. 12mo. 
 1863. 18«. 
 
 PLEADING— Archbold.—F^e " Criminal." 
 
 Bullen and Leake's Precedents of Pleadings.— 
 
 Precedents of Pleadings in Actions in the Superior Courts of Com- 
 mon Law, with Notes. By EDWARD BULLEN, Esq., and 
 STEPHEN MARTIN LEAKE, Esq., Barristers-at-Law. Third 
 Edition. 8vo. 1868. 1/. lis. Qd. 
 
 Stephen on Pleading. — A Treatise on the Principles of 
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 whole proceedings in a Suit at Law ; being the Seventh Edition of 
 Mr. Serjeant Stephen's work under that title, with Alterations 
 adapting it to the Present System. Seventh Edition. By FRANCIS 
 F. PINDER, Barrister-at-Law. Svo. 1S66. 16s. 
 
 POOR LAW.— Davis' Treatise on the Poor Laws, — Being 
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 POWERS.— Farwell on Powers. — A Concise Treatise on 
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 rister-at-Law. Svo. 1874. 11. Is. 
 " Wc recommend Mr. Farwell's book as containing within a small compass what would 
 
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 November, 1874. 
 
 PRINCIPAL AND AGENT.— Petgrave's Principal and 
 
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 PRIVY COUNCII Lattey's Handy Book on the Prac- 
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 ncy of the Court of Queen's Bench, and of the High Court of Bengal ; 
 and Advocate of the Courts of British Burmah. 12mo. 1869. 6s. 
 
 PROBATE.— Browne's Probate Practice : a Treatise on the 
 Principles and Practice of the Court of Probate, in Contentious and 
 Non-Contentious Business, with the Statutes, Rules, Fees, and 
 Forms relating thereto. By GEORGE BROWNE, Esq., Barrister- 
 at-Law. (Author of ' ' I'ractice for Divorce and Matrimonial 
 Causes.") Svo. 1873. 11. Is. 
 
 "A cursory glance through Mr. Browne's work shows that it has been compiled with 
 more than ordinary caro and intelligence. We should consult it with every Confidence, 
 and consequently recommend it to those who require an instructor in Probate Court prac- 
 tice.' 1 — Law Times, June 21, 187U. 
 
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 PROBATE— Continued. 
 
 Dodd and Brooks' Probate Court Practice,— The 
 
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 WILLIAM DODD, Solicitor, and GEOPGE HENPY BROOKS, 
 Proctor in Doctors' Commons. Svo. 1865. 11. lis. GcZ. 
 
 PUBLIC HEALTH.— Chambers' Sanitary Acts Amend- 
 ment Act, 1874. By GEOPGE F. CHAMBERS, F.R.A.S., 
 of the Inner Temple, Barrister-at-Law, late a Supernumerary 
 Inspector of the Local Government Board. Imperial Svo. 1874. 
 
 Nat, Is. M. 
 
 Chambers' Digest of the Statutes relating to the 
 
 Public Health. — A Handy-book for all Sanitary Authorities, 
 
 with a Table of Cases and a Copious Index. Seventh Edition. 
 
 Imperial Svo. 18s. 
 
 Fitzgerald's Public Health Act, 1875.— The Law 
 
 relating to Public Health and Local Government, as contained in 
 
 the Public Health Act, 1875, with Introduction and Notes, showing 
 
 all the alterations in the Existing Law, with reference to the Cases, 
 
 &c. By GERALD A. R. FITZGERALD, Esq., of Lincoln's Inn. 
 
 Barrister-at-Law. (In the Press). 
 
 * .. * The Author was employed by the Government as the Draftsman of 
 
 the Public Health Bill. 
 PUBLIC LAWi— Bowyer's Commentaries on Uni- 
 versal Public Law.— By Sir GEORGE BOWYER, 
 D.C.L. Royal Svo. 1854. 1?. 1*. 
 
 QUARTER SESSIONS.— Pritchard's Quarter Sessions. 
 The Jurisdiction, Practice, and Procedure of the Quarter Sessions 
 in Criminal, Civil, and Appellate Matters. By THOS. SIRRELL 
 PRITCHARD, of the Inner Temple, Barrister-at-Law, Recorder 
 of Wenlock. Svo. 1875. 2/. 2s. 
 
 " We congratulate Mr. Pritchard on the state of order he has produced out of the 
 chaotic mass he has dealt with, and we think much credit is due to him for his evident 
 painstaking." — Law Journal, April 24, 1875. 
 
 " We can confidentally say that it is written throughout with clearness and intelligence, 
 and that both in legislation and in case law it is carefully brought down to the most 
 recent Hate."— Solicitors' Journal, Way 1, 1875, 
 RAILWAYS.— Browne.— Tuft; " Carriers." 
 
 Lely's Railway and Canal Traffic Act, 1873.— 
 
 And other Railway and Canal Statutes ; with the General Orders, 
 
 Forms, and Table of Fees. By J. M. LELY, Esq., Baz-rister-at-Law. 
 
 Post Svo. 1873. Ss. 
 
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 convenient, and from it at a glance can be seen the subject matter of complaint, the 
 
 decil ion of the Court, and the ground of each decision. — Late Magazine, April, 1S74. 
 
 Simon's Law relating to Railway Accidents, 
 
 including an Outline of the Liabilities of Railway Companies as 
 
 Carriers generally, concisely Discussed and Explained. 12mo. 
 
 1862. 3s. 
 
 REAL PROPERTY — Dart.— Vide "Vendors and Purchasers." 
 
 Leake's Elementary Digest of the Law of Pro- 
 perty in Land. — Containing — Introduction. Part I. The 
 Sources of the Law. Part II. Estates in Land. By STEPHEN 
 MARTIN LEAKE, Barrister-at-Law. Svo. 1874. 22s. 
 
 %* The above forms a complete Introduction to the Study of the Law of 
 Real Property. 
 Shelford's Real Property'Statutes.— Eighth Edition. 
 By THOMAS H. CARSON, Esq., of Lincoln's Inn, Barrister- 
 atLaw. Svo. 1874. 11. 10*. 
 
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 119, CHANCERY LANE, LONDON, W.C. 23 
 
 REAL PROPERTY -Continued. 
 
 Smith's Real and Personal Property.— A Com- 
 pendium of the Law of Ileal and Personal Property, primarily 
 connected with Conveyancing. Designed as a second book for 
 Students, and as a digest of the most useful learning for Practi- 
 tioners. By JOSIAH W.SMITH, B.C.L., Q.C. Fourth Edition. 
 In two convenient volumes. Svo. 1870. 11. 18*. 
 
 "As a refresher to the memory, and a repository of information that is wanted in daily 
 practice, it will be found of great value." — Jurist. 
 
 "It will be seen from this outline that the work is extremely well planned; the topics 
 are arranged in the natural order as they How out of one another, and thus immensely aid 
 the reader's memory. He writes like a man who is master of his theme, clearly and con- 
 cisely." — Law Times. 
 
 " A portly, admirable volume. ... He has given to the student a book which he may 
 read over and over again with prolit and pleasure." — Law Times, Jan. 21, 1805. 
 
 "The work before us will, we think, be found of very great service to the practitioner. 
 — Solicitors' Journal. 
 
 "By far the most valuable of the advanced text books on Conveyancing is the thick 
 volume of Mr. J. \V. Smith. ... I know of no volume which so entirely fulfils the 
 requirements of a student's text book." — From Dk. Rollu's Lecture. [The first three 
 editions were in one vol.] 
 
 RECORD AND WRIT.— Braithwaite's Record and Writ 
 
 Practice. — With Practical Directions and Observations. By 
 
 T. W. BRAITHWAITE, of the Record and Writ Clerks' Office. 
 
 Svo. 1858. 18s. 
 
 REFEREES' COURT.— Will's Practice of the Referees' 
 
 Courts ill Parliament, in regard to Engineering Details, 
 Efficiency of Works, and Estimates, and Water, and ( 5-as Bills ; with 
 a Chapter on Claims to Compensation. By JOHN SHIRESS 
 WILL, Esq., Barrister-at-Law. Svo. 1866. 11. Is. 
 
 REPORTS.— Vide pages 26-7. 
 
 ROMAN LAW.— Cumin.— Vide "Civil." 
 
 Greene's Outlines of Roman Law- Consisting chiefly 
 of an Analysis and Summary of the Institutes. For the use of 
 Students. By T. WHITCOMBE GREENE, B.C.L., of Lincoln's 
 Inn, Barrister-at-Law. Third Edition. Foolscap Svo. 1875. 7s. Gd. 
 Phillimore's Introduction to the Study and 
 History of the Roman Law. — Svo. ISIS. 15s. 
 
 SAUNDERS' REPORTS.— Williams' (Sir E. V.) Notes to 
 Saunders' Reports. — Notes to Saunders' Reports. By the 
 late Serjeant WILLIAMS. Continued to the present time by the 
 Right Hon. Sir EDWARD VAUGHAN WILLIAMS. 2 vols. 
 Royal 8vo. 1871. 2Z. 10«. 
 
 " Instead of the old text of 'Saunders' Reports,' which contains so large an extent of 
 what is now useless matter, we have here an abridgment of the several eases, to which 
 tlir old notes are applied. The Pleadings also are omitted, as entirely without value iu 
 the existing state of the law. The present work is in fact an adaptation of 'Williams 
 Saunders' to the law as it now exists; and this is effected in a manner advantageous for 
 practical purposes, but without rendering less solid the learning which is here so amply 
 displayed."— Law Magazine, August, 1871. 
 
 SETTLED ESTATES.— Brickdale's Leases and Sales of 
 Settled Estates Act.— 19 & 20 Vict., c. 120, and the 
 General Orders and Regulations relating thereto. With an Intro, 
 duction and Notes, and a Supplement, containing the Amending Act, 
 21 and 22 Vict., c. 77, and the Cases and Decisions down to the end 
 of Easter Term, 1861. By M. I. FORTESCUE BRICKDALE, 
 of the Middle Temple and Lincoln's Inn, Barrister-at-Law. 12mo. 
 1861. 5?. 
 
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 SHIPPING, and vide " Admiralty." 
 
 Greenhow's Shipping Law Manual. — A concise 
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 Merchants, Masters, Seamen, and other persons connected with 
 British ships, together with the Acts of Parliament, Forms, and 
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 popular use in Seaport Towns. By 'WILLIAM THOMAS 
 GBEENHOW, of the Middle Temple, Esq., Barrister-at-Law. 8vo. 
 1862. 20s. 
 
 STAMP LAWS.— Tilsley's Stamp Laws— A Treatise on the 
 Stamp Laws, being an Analytical Digest of all the Statutes and 
 Cases relating to Stamp Duties, with practical remarks thereon. By 
 tlie late HUGH TILSLEY, Assistant Solicitor of Inland Revenue. 
 Third Edition. With Tables of all the Stamp Duties payable in 
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 STATUTES ixml dde " Acts of Parliament." 
 
 Bicldle's Table of Statutes.— A Table of References to 
 unrepealed Public General Acts, arranged in the Alphabetical Order 
 of their Short or Popular Titles. By JOHN BIDDLE, of the 
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 and Corrected (by a Supplement) to the end of the Session, 1870 ; 
 including References to all the Acts in Chitty's Collection of 
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 8vo. 1865. 121. 12s. 
 
 Supplemental Volume to the above, comprising the Statutes 
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 Lynch's StatLlte Law of 1870, for the use of Student 
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 „ ,, 1872. Svo. Sewed. Nett, Is. 
 
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 SUCCESSION DUTY. —Continued. 
 
 Trevor on the Taxes on Succession. — A Digest of the 
 Statutes and Cases (including those of Scotland and Ireland) relating 
 to the Probate, Legacy, and Succession Duties. With Practical 
 Observations and Official Forms. Second Edition, considerably 
 enlarged. By C. C. TREVOR, Esq. 12mo. 1860. 13s. 
 
 TORTS.— Addison on Wrongs and their Remedies. — 
 Being a Treatise on the Law of Torts. By C. G. ADDISON, Esq., 
 Author of " The Law of Contracts." Fourth Edition. By F. S. P. 
 WOLFERSTAN, Esq., Barrister-at-Law. Royal 8vo. 1873. 
 
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 TRAMWAYS.— Sutton's Tramway Acts. — The Tramway 
 Acts of the United Kingdom, with Notes on the Law and Practice, 
 and an Appendix containing the Standing Orders of Parliament, 
 Rules of the Board of Trade relating to Tramways, and Decisions 
 of the Referees with respect to Locus Standi. By HENRY 
 SUTTON, B.A., of Lincoln's Inn, Barrister-at-Law. Post 8vo. 
 1874. 2s. 
 
 USES.— Jones (W. Hanbury) on Uses.— 8vo. 1862. 
 
 VENDORS AND PURCHASERS.— Dart's Vendors and Pur- 
 chasers. — A Treatise on the Law and Practice relating to Ven- 
 dors and Purchasers of Real Estate. By J. HENRY DART, of 
 Lincoln's Inn, Esq.. Barrister-at-Law, one of the Six Conveyancing 
 Counsel of the High Court of Chancery. Fifth Edition. By the 
 AUTHOR and WILLIAM BARBER, of Lincoln's Inn, Esq., 
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 WATERS.— Woolryeh on the Law of Waters.— Including 
 Rights in the Sea, Rivers, Canals, &c. Second Edition. 8vo. 851. 
 
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 Goddard. — Vide " Easements." 
 
 WILLS,— Montriou.— Fi'tfe " Indian Law." 
 
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 structions for Wills.— 8vo. 1874. 4s. 
 Williams. — Vide " Executors." 
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