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Price 11. lis. Gd. cloth. 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 Any parts of the section repealed are indicated by italics; the sub- stituted or amending section of the later Act is printed under- neath; and such notes are added us seemed likely to be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. THE ENP. LONDON : stevens & richardson, printers, 5, great qceen 8treet, Lincoln's inn fields, w.c. October, 1875. .A. OATALOG-TJI1 OP LAW BOOKS, PUBLISHED BY STEVENS AND SONS, 119, CHANCERY LANE, LONDON, W.C. ACTION AT LAW.— Lynch's Tabular Analysis of the Proceedings in. an Action-at-Law in the Superior Courts, for the use of Students. 8vo. 1873. Sewed. Nett, Is. Smith's (John W.) Action at Law. — An Elementary View of the Proceedings in an Action at Law. By JOHN WILLIAM SMITH, Esq., Author of "Leading Cases," "A Com- pendium of Mercantile Law," &c, &c. Eleventh Edition, adapted to the present Practice. 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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. 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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. *** All standard Law Works arc 7cqt in Stock, in law calf and other Mndinys. 119, CHANCERY LANE, LONDON, W.C. 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.) 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"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. %* All standard Lav: Works are kept in Stock,in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 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. * # * All standard Laio WurJcs are kept in Stock, inlaw calj and other bindings. 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- panies, Justices, Merchants, Estate Agents, Auctioneers, &c, &c. Published Annually. The Work is 8vo. size, strongly hound in cloth, and published at the following Prices : — 8. d. 1. Two days on a page, plain ....... 5 2. The above, interleaved for Attendances . . .70 3. Two days on a page, ruled, with or without money columns 5 6 4. The above, interleaved for Attendances . . . .80 5. Whole page for each day, plain 7 6 6. The above, interleaved for Attendances . . .96 7. Whole page for each day, ruled, with or without money columns 86 8. The above, interleaved for Attendances . . . 10 6 9. Three days on a page, ruled blue lines, without money columns 5 " The ' Lawyer's Companion and Diary ' is a book that ought to bo in the possession of every lawyer, and of every man of business." " The ' Lawyer's Companion ' is, indeed, what it is called, for it combines everything required for reference in the lawyer's office." — Law Times. " This is the twenty-ninth annual issue of a work which is now an indispensable adjunct to every lawyer's private room." The Lawyer's Companion — Is edited by JOHN THOMPSON, Esq. , of the Inner Temple, Barrister-at-Law ; and contains a Digest of Recent Cases on Costs ; Alphabetical Index to the Practical Statutes ; " Cases affecting Attorneys and Solicitors," brought down to the period of publication ; a Copious Table of Stamp Duties ; Legal Time and other Tables, a London and Provincial Law Directory, and a variety of matters of practical utility. The Diary is printed on paper of superior quality, and contains memo- randa of Legal Business throughout the Year. DIGESTS.— Anderson. — Vide "Criminal Law." Bedford. — Vide " Examination Guides." Chambers. — Vide "Public Health." Chitty's Equity Index. — Cbitty's Index to all the Reported Cases, and Statutes, in or relating to the Principles, Pleading, and Practice of Equity and Bankruptcy, in the several Courts of Equity in England and Ireland, the Privy Council, and the House of Lords, from the earliest period. Third Edition. By J. MACAULAY, Esq., Barrister-at-Law. 4 vols. Royal 8vo. 1853. 71. 7s. Fisher's Digest of the Reported Cases deter- mined in the House of Lords and Privy Council, and in the Courts of Common Law, Divorce, Probate, Admiralty and Bank- ruptcy, from Michaelmas Term, 1750, to Hilary Term, 1870 ; with References to the Statutes and Rules of Court. Founded on the Analytical Digest by Harrison, and adapted to the present practice of the Law. By R. A. FISHER, Esq., of the Middle Temple, Barrister-at-Law. Five large volumes, royal 8vo. 1870. 121. 12s. (Continued Annual/)/.) " Mr. Fisher's Digest is a wonderful work. It is a miracle of human industry." — Mr. Justice Wille.t. " The fact is, that we have already the best of all possible digests. I do not refer merely to the works which pass under that title — though, I confess, I think it would be very difficult toimprove upon Mr. Fisher's 'Common Law Digest' — I refer to the innumerable text books of every branch of the law. What better digest of criminal law could we possibly ln>pe lor (ban 'Russell on Crimes,' and the current Koscoe and Archbold, to Bay nothing of the title, 'Criminal Law,' in 'Fisher's Digest.' " — Mr. Fitzjames Stephen, <}.('., tit his Address to the Law Amendment Society on Codification in India and England, Session 1872-3. %* A 11 standard Law Works arc kq>t in Stock, in law calf and other hindinys. 12 STEVENS AND SONS' LAW PUBLICATIONS. DIGESTS.— Continued. Harrison.— Vide " Fisher.' ; Leake.— Vide "Seal Property." Notanda Digest in Law, Equity, Bankruptcy, Admiralty, Divorce, and Probate Cases.— By E. S. MASKELYNE, Esq., and CECIL C. M. DALE, Esq., of Lincoln's Inn, Barristers-at-Law. The Notanda Digest, from the commencement, October, 18G2, to December, 1872. Half-bound. Nett, SI. 3s. Ditto, for 1873 and 1874, sewed. Nett, each, 12s. 6d. Ditto, Annual Subscription, Plain Copy and Two Indexes, or Adhesive Copy, printed on one side, for insertion in Text-Books. Payable in advance. Nett, 15s. %* Back Numbers to complete sets may be had at half the published price. DIVORCE.— Browne's Treatise on the Principles and Practice of the Court for Divorce and Matrimonial Causes :— With the Statutes, Bales, Fees, and Forms relating thereto. By GEORGE BROWNE, Esq., B.A., of the Inner Temple, Barrister-at-Law. Third Edition. (In the Press. ) Macqueenon Divorce and Matrimonial Causes. — A Practical Treatise on Divorce and Matrimonial Jurisdiction, under the Act of 1857, and New Orders ; including Scotch Marriages and Scotch Law of Divorce, &c, &c. With numerous Precedents. Second Edition, greatly enlarged. By JOHN FRASER MAC- QUEEN, Esq., Barrister-at-Law, Honorary Secretary to H.M. Divorce Commission, &c. Svo. 1860. 18s. DOMICIL.— Phillimore's (Dr. R.) Law of Domicil.— 8vo. 1847. 9s. DUTCH LAW.— Vanderlinden's Institutes of the Laws of Holland.— Svo. 1828. 11. 18s. EASEMENTS.— Goddard's Treatise on the Law of Easements.— By JOHN LEYBOURN GODDARD, of the Middle Temple, Barrister-at-Law. Svo. 1871. 14s. *** The Author was appointed by Her Majesty's Digest of Law Commissioners to prepare a specimen Digest of the Law of Easements. " Nowhere has the subject been treated so exhaustively, aucl, we may aild, so scientifi- cally, as by Mr. Goddard. We recommend it to the most careful study of the law student, as well as to the library of the practitioner." — Law Times, March 18, 1871. " As a true reflection of the cases and as an admirably complete collection of authorities no! ODly in Banc but at Nisi Prius, the book is invaluable ; and where the cases are silent the author has taken pains to ascertain what the law would be if brought into question."— Lata Journal, March 10, 1871. Woolryeh.— Vide "Lights." ECCLESIASTICAL.— Phillimore's (Sir R.) Ecclesiastical Law. — The Ecclesiastical Law of the Church of England. By Sir ROBERT PHILLIMORE, D.C.L., Official Principal of the Arches Court of Canterbury ; Member of Her Majesty's Most Honourable Privy Council. 2 vols. 8vo. 1873. 3/. 3s. Rogers' Ecclesiastical Law. — A Practical Arrangement of Ecclesiastical Law, including a Treatise on Prohibition, and showing the Practice of the Ecclesiastical Courts. Second Edition. By F. N. ROGERS, Esq., one of Her Majesty's Counsel. Svo. 1S49. U. 16s. Stephens.— Vide " Church and Clergy." %* All standard Lav: Works are kept in Stock, in lav: calf and other bindings 119 CHANCERY LANE, LONDON, W.C. 13 ELECTIONS.— Fitzgerald.— Fide "Ballot." Rogers on Elections and Registration.— With an Appendix of Statutes and Forms. Twelfth Edition. By F. S. P. WOLFEBSTAN, Esq., of the Inner Temple, Barrister-at-Law. (Ready in November.') ENGLAND, LAWS OF.— Bowyer.— Vide " Constitutional Law." Broom and Hadley. — Vide " Commentaries." Syms' Code of English Law (Principles and Practice) for handy reference in a Solicitor's office. By F. li. SYMS, Solicitor. 12mo. 1870. 16s. It may be remarked that this Work is founded upon the usual prac- tical Text Books as loell as on Blackstone. EQUITY and Vide CHANCERY. Chitty.— Vide "Digests." Seton's Forms of Decrees in Equity.— Fourth Edition. Specially adapted to the Rules of Procedure under the Judicature Act. By R. H. LEACH, Esq., Senior, Registrar of the Court of Chancery ; and F. G. A. WILLIAMS, Esq., of Lincoln's Inn, Barrister-at-Law. (In Preparation.) Smith's Manual of Equity Jurisprudence.— A Manual of Equity Jurisprudence founded on the Works of Story, Spence, and other writers, and on the subsequent cases, comprising the Fundamental Principles and the points of Equity usually occur- ring in General Practice. By JOSIAH W. SMITH, B.C.L., Q.C., Judge of County Courts. Eleventh Edition. 12mo. 1873. 12s. Qd. "To sum up all in a word, for the student and the jurisconsult, the Manual is the nearest approach to an equity code that the present literature of the law is able to furnish."— Law Times. " It will be found as useful to the practitioner as to the student."— Solicitors' Journal. " Mr. Smith's Manual has fairly won for itself the position of a standard work."— Jurist. " It retains, and that deservedly, the reverence of both examiners and students.'' — From a Lecture on a Course of Reading by A. K. Kollit, LL.D., Gold Medallist of the University of London, and Prizeman of the Incorporated Law Society. " There is no disguising the truth ; the proper mode to use this book is to learn its pages by heart." — Laic Magazine and Review. Smith's (Sidney) Principles of Equity.— Svo. 1856. 11. 5s. EVIDENCE.— Arehbold.— F^e " Criminal." Norton. — Vide " Indian Lav/." Phillimore's Law of Evidence.— The History and Principles of the Law of Evidence as illustrating our Social Progress. By J. G. PHILLIMORE, Esq., Q.C. 8vo. 1850. 16s. RoSCOe— Vide " Criminal.'" Roscoe. — Vide " Nisi Prius." EXAMINATION GUIDES— Anderson— Vide "Criminal." Bedford's Guide to the Preliminary Examina- tion for Solicitors.— Fourth Edition. 12mo. 1874. Nell, lit,: Bedford's Digest of the Preliminary Examina- tion Questions mi English and Latin, Grammar, Geography. 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Sir EDWARD VATIGHAN WILLIAMS, late one of the Judges of Her Majesty's Court of Common Pleas, and WALTER VAUGHAN WILLIAMS, Esq., Barrister-at-Law. 2 vols. Royal Svo. 1873. 3?. 16s. FACTORY ACTS. — Notcutt's Factory and Workshop Acts. —Comprising all the Laws now in force (including the Act of 1874) for the regulation of Labour in Factories and Workshops, with Introduction, Explanatory Notes, and Notes of decided cases, by GEORGE JARVIS NOTCUTT, Esq., of the Middle Temple, Barrister-at-Law. 12mo. 1874. 9s. "The book s a very creditable and useful work, and the cases cited are all of con- siderable authority and well-recognised standing. We cau recommend the book to all who require a handy compilation of a lew special statutes." — Law Times. FARM, LAW OF.— Cooke.— Tide " Agricultural Law." Dixon's Law of the Farm — A Treatise on the Law of the Farm ; including the Agricultural Customs of England and Wales. Third Edition. With an Appendix of Cases to the end of Hilary Term, 1863. 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By LEONARD FIELD and EDWARD CLENNELL DUNN, Barristers-at-Law, and JOHN BIDDLE, of the Master of the Rolls' Chambers. Second Edition. By JOHN BIDDLE. 8vo. 1871. 11. 12s. Moore's Solicitor's Book of Practical Forms.— 12mo. 1852. 7s. 6d. HICHWAYS.-Bateman's General Highway Acts.— Second Edition. By W. N. WELSBY, Esq. With a Supplement containing the Highway Act of 1864, &c. With Notes and a Revised Index by C. MANLEY SMITH, Esq., of the Inner Temple, Barrister-at-Law. 12mo. 1865. 10s. 6d. Shelford's Law of Highways. — The Law of Highways ; including the General Highway Acts for England and Wales, and other Statutes, with copious Notes of the Decisions thereon ; with Forms. The Third Edition, corrected and enlarged. By LEONARD SHELFORD, Esq., Barrister-at-Law. _ With a Supplement containing the Highway Act, 1864, &c. ; with Notes and a revised Index by C. MANLEY SMITH, Esq., Barrister-at- Law. 12mo. 1865. 15s. * # * The Supplement may be had separately, price 3s. sewed. INCLOSURES.— Vide " Commons." INDIAN LAW — Montriou; the Hindu Will of Bengal With an Introductory Essay, &c. Royal 8vo. 1870. Nctt, 11. 10 Norton's Law of Evidence applicable to India. By JOHN BRUCE NORTON, late Advocate-General of Madras. Eighth Edition. Royal Svo. 1873. Nctt, 20s. Norton's Leading Cases on the Hindu Law of Inheritance.— 2 vols. Royal Svo. 1870-71. Nett, 21. 10s. INFANTS.— Ebsworth's Lav/ of Infants.— A Handy Book of the Law of Infants. By JOHN EBS WORTH, Esq., Solicitor. 12mo. 1861. - 3s. Forsyth's Law relating to the Custody of Infants in Cases of difference between Parents or Guardians.— 8vo. 1850. 8s. INSURANCE.— Arnould on the Law of Marine Insu- rance.— Fourth Edition. By DAVID MACLACHLAN, Esq., Barriste"r-at-Law. 2 vols. Royal Svo. 1872. 21. 12s. 6c/. Hopkins' Manual of Marine Insurance.— 8vo. 1867. 18*. Lowndes.- Fide "Average." INTERNATIONAL LAW- — Amos' Lectures on Inter- national Law. — Delivered in the Middle Temple Hall to the Students of the Inns of Court, by SHELDON AMOS, M.A., of the Inner Temple, Barrister-at-Law ; Professor of Jurisprudence (including Internationa] Law) to the Inns of Court; Professor of Jurisprudence in University College, London. Royal 8 vo. 1874. 10s. ikl %* All standard Law Works arc kept in Stock, in law calf and other bindings. lt> STEVENS AND SONS' LAW PUBLICATIONS. INTERNATIONAL LAW. -Continued. Kent's International Law. — Kent's Commentary on International Law, Revised, with Notes and Cases brought down to the present time. Edited by J. T. ABDY, LL.D., Barrister-at- Law. Svo. 1866. 16s. " Dr. Abdy has done all Law Students a great service in presenting that portion of Kent's Commentaries which relates to public International Law in a single volume, neiiher large, diffuse, nor expensive." " Altogether Dr. Abdy has performed his task in a manner worthy of his reputation. His book will be useful not only to Lawyers and Law Students, for whom it was primarily intended, but also lor laymen. It is well worth the study ot every member of an enlightened and civilized community." — Solicitors' Journal, March 15th, 18G7. Levi's International Commercial Law. — Being the Principles of Mercantile Law of the following and other Countries — viz. : England, Ireland, Scotland, British India, British Colonies, Austria, Belgium, Brazil, Buenos Ayres, Denmark, France, Germany, Greece, Hans Towns, Italy, Netherlands, Norway, Portugal, Brussia, Russia, Spain, Sweden, Switzerland, United States, Wiirtemberg. By LEONE LEVI, Esq., F.S.A., E.S.S., of Lincoln's Inn, Barrister- at-Law, Frofessor of the Principles and Practice <>f Commerce at King's College, London, &c. Second Edition. 2 vols. Royal Svo. 1863. 11 15s. Vattel's Law of Nations.— A New Edition. By JOSEPH CHITTY, Esq. Royal Svo. 1834. £1 1*. Wildmail's International Law.— Institutes of Inter- national Law, in Time of Peace and Time of War. By RICHARD WILDMAN, Barrister-at-Law. 2 vols. Svo. 1849-50. 1?. 2s. 6c/. JOINT STOCKS.— Jordan's Joint Stock Companies.— A Handy Book of Practical Instructions for the Formation and Management of Joint Stock Companies. Fifth Edition. 12mo. 1875. Nett, 2s. 6d. Thring's (H.) Joint tock Companies' Law.— The Law and Practice of Joint Stock and other Public Companies, in- cluding the Statutes, with Notes, and the Forms required in Making, Administering, and Winding-up a Company, with a Supplement containing the Companies' Act, 1867, and Notes of Recent Decisions. By Sir HENRY THRING, K.C.B., The Parliamentary Counsel. Third Edition. By GERALD A. R. FITZGERALD, Esq., of Lincoln's Inn, Barrister-at-Law, and Fellow of St. John's College, Oxford. 12mo. 1875. 20s. JUDGMENTS. — Pask's Judgments, Executions, and Crown Debts. — The Judgments Law Amendment Acts relating to Real Property, 22 & 23 Vict., c. 35, and 23 & 24 Vict., c. 38, 23 & 24 Vict. c. 115, and 27 & 28 Vict. c. 112. With Notes, References to Cans, and Index : forming an Appendix to "The Practice of Registering," &c. By JAMES PASK, Chief Clerk to the Registrar to the Court of Common Pleas, Westminster. Third Edition. 12mo. 1866. Sewed. Nett, 2s. *#* All standard Law Works arelept in Stock, in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 17 JUDICATURE ACTS.— Clowes' Compendious Index to the Supreme Court of Judicature Acts, and to the Orders and Rules issued thereunder. By W. CLOWES, E^q., one of the Registrars of the Court of Chancery. {Uniform in size with the Queen's Printers Edition of the Acts and Rales.) 1875. 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(In preparation.) Stephen's Judicature Acts 1873 and 187S con- solidated, Rules and Orders. With Notes and an Index. By J. FITZJAMES STEPHEN, one of Her Majesty's Counsel. (In the press.) Lynch's Tabular Analysis of the Supreme Court of Judicature Acts, 1873 and 1875, for the Use of Students. Royal Svo. 1875. Nett, Is. Wilson's Judicature Acts, Rules and Forms. With Notes and a copious Index, forming a Complete Guide to the New Practice. By ARTHUR WILSON, of the Inner Temple, Esq., Barrister-at-Law. Royal 12mo. 1875. 18«. (Bound in lim/> leather for the pocket, price 22s. 6d.) %* A LARGE paper Edition of the above (for marginal notes), in r.oyal Svo, cloth, 25s. (Bound in limp leather, price 30s.). JURISPRUDENCE. — Amos, Law as a Science and as an Art. — An introductory lecture delivered at University College at the commencement of the session 187-1-5. By SHELDON AMOS, Esq., M.A, Barrister-at-Law. Svo. 1874. Is. 6d. Phillimore's (J. G.) Jurisprudence. — An Inaugural Lecture on Jurisprudence, and a Lecture on Canon Law, delivered at the Hall of the Inner Temple, Hilary Term, 1851. By J. G. PHILLIMORE, Esq., Q.C. Svo. 1851. Sewed. 3s. 6d. JUSTICE OF THE PEACE.— Arnold's Summary of the Duties of a Justice of the Peace out of Sessions. — Summary Convictions. By THOMAS JAMES ARNOLD, Esq., one of the Metropolitan Police Magistrates. Svo. 1860. ' 1/. 6*. Burn's Justice of the Peace and Parish Officer. ■ — Edited bv the following Barristers, under the General Superinten- dence of JOHN BLOSSETT MAULE, Esq., Q.C., Recorder of Leeds. The Thirtieth Edition. Vol. I. containing titles "Abatement" to " Dwellings for Arti/.aus ;" byTHOS. SIRRELL %* All standard Law Works arc kepi in Stock, in law calf and other bindings. 13 STEVENS AND SONS' LAW PUBLICATIONS. JUSTICE OF THE PEKCE -Continued. PRITCHARD, Esq., of the Innei Temple. Vol. II. containing titles " Easter Offering " to "Hundred ;" by SAML. BOTELER BIUSTOWE, Esq., of the Inner Temple. Vol. III. containing titles " Indictment ' to " Promissory Notes ;" by LEWIS W CAVE, Esq., of the Inner Temple. Vol. IV. confining the whole title "Poor;"' by JAMES EDWD. DAVIS, Esq., Stipendiary Magistrate for Stoke-upon-Trent. {Sold separately, price £1 lis. 6d. ) VoL V. containing titles "Quo Warranto" to "Wreck;" by JOHN BLOSSETT MAULE, Esq., Q.C., Recorder of Leeds. Eive vols. Svo. 1869. 11. 7s. Siucc the publication in 1845 of the former Edition of Burn's Justice of the Peace and Parish Officer the whole range of the Law which Magistrates had to administer has undergone more or less alteration, and, indeed, the time which has elapsed since that publication appeared has doubtless worked as great a change in the Magistrates them- selves : so that to very many of the Gentlemen now composing the body of Justices the Encyclopedic Work of Burn must be, if not entirely unknown, at least unfamiliar as a book of reference. Paley. — Vide "Convictions.' Stone. — Vide " Petty Sessions." LAND DRAINAGE.— Thring's Land Drainage Act.— With an Introduction, Practical Notes, an Appendix of Statutes relating to Drainage, and Forms. By THEODORE THRING, Esq., Barrister-at-Law. 12mo. 1861. 7s. LAND TAX.— Bourdin's Land Tax.— An Exposition of the Land Tax ; its Assessment and Collection, with a statement of the rights conferred by the Redemption Acts. By MARK A. BOUR- DIN, of the Inland Revenue Office, Somerset House (late Registrar of Land Tax). Second Edition. Crown Svo. 1S70. 4s. LANDLORD AND TENANT.— Woodfall's Law of Landlord and Tenant.— A Practical Treatise on the Law of Landlord and Tenant, with a full Collection of Precedents and Forms of Procedure. Tenth Edition. By W. E. COLE, Esq., Barrister-at- Law. Royal Svo. 1871. 1/. 18s. LAW, GUIDE TO.— A Guide to the Law for General Use. By a Barrister. Twenty-first Edition. Crown Svo. 1875. Nett 3s. 6d "There may be many students of both branches of the profession who will find the follow itig pages an assistance to them in the course of their reading, not in substitution of but together with, or preliminary to, the voluminous and highly technical works which they have necessarily to examine." LAW LIST Law List (The). — Comprising the Judges and Officers of the different Courts of Justice, Counsel, Special Pleaders, Draftsmen, Conveyancers, Attorneys, Notaries, &c, in England and Wales ; to which are added the Circuits, Judges, Treasurers, Registrars, and High Bailiffs of the County Courts, District Registries and Registrars under the Probate Act, Lords Lieu- tenant of Counties, Recorders, Clerks of the Peace, Town Clerks, Coroners, Colonial Judges, and Colonial Lawyers having English Agents, Metropolitan Police Magistrates, Law Agents, Law and Public Officers, Circuits of the Judges and Coimsel attending Circuit and Sessions, List of Sheriffs and Agents, London Commis- sioners for taking Oaths in Chancery, Queen's Bench, Common Pleas and Exchequer, &c, &c, and a variety of other useful matters so far as relates to Special Pleaders, Draftsmen, Conveyancers, %* All standard Lav: Works an kept in Stock, in law calf and other bindings. 110, CHANCERY LANE, LONDON, W.C. LAW LIST.— Continued. Attorneys, Solicitors, Proctors and Notaries. Compiled by WILLIAM HENRY COUSINS, of the Inland Revenue Office, Somerset House, Registrar of Certificates. Published annually. By authority. 10s. 6d. LAW REPORTS.— ^de pages 26-7. LAWYER'S COMPANION.— Vide "Diary." LEGACIES.— Roper's Treatise on the Law of Lega- cies.— Fourth Edition. By H. H. WHITE. 2 vols. Royal 8vo. 1847. 3?. 3s Trevor. — Vide, "Succession." LEXICON Vide "Dictionary." LICENSINC— Lely and Foulkes' Licensing Acts, 1828, 1869, 1872, and 1874; Containing the Law of the Sale of Liquors by Retail and the Management of Licensed Houses ; with Notes to the Acts, a Summary of the Law, and an Appendix of Forms. Second Edition. By J. M. LELY and W. D. I. FOULKES, Esqrs., Barristers-at-Law. Royal 12mo. 1874. 8s. "Messrs. Lely and Foulkes's plan is to print in full the three principal Acts of 1828, 1SG9, and 1872, and to interpolate between the sections of each of these statutes all sub- sidiary enactmonts distinguishing them by brackets and marginal notes .... to most of the sections of the Act of last Session notes are added. These notes are usually sensible and to the point, and give evidence both of care and knowledge of the subject." 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. %* All standard Law Works arc Jtept in Stock, in law ccdf and other bindings. 20 STEVENS AND SONS' LAW PUBLICATIONS. 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 for the use of Commissioners to Administer Oaths in Chancery; 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 COLE, Solicitor. Foolscap 8vo. 1859. Nctt 2s. "This is a uceful little work, particularly to Commissioners appointed under the Statute 22 Vict. c. 16. It contains the forms of Oaths and Affirmations to be administered in special and other cases, and the Forms and Recognisances of Bail in Error, to which are appended Explanatory Notes and Observations by Mr. Cole, which will be found of prac- tical utility. "—Solicitors' Journal, 15th Oct., 1859." PATENTS.— Hindmareh's Treatise on the Law rela- ting to Patents.— Svo. 1846. 21s. %* All standard Law Works are kept in Stock, in lav: calf and other binidngs. 119, CHANCERY LANE, LONDON, W.C. 21 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 Pleading in Civil Actions ; comprising a Summary Account of the 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 Vol. IV. of Burn's Justice of the Peace. 8vo. 1869. 11. lis. 6d. POWERS.— Farwell on Powers. — A Concise Treatise on Powers. By GEORGE FARWELL, B.A., of Lincoln's Inn, Bar- rister-at-Law. Svo. 1874. 11. Is. " Wc recommend Mr. Farwell's book as containing within a small compass what would otherwise have to be sought out in the pages of hundreds of confusing reports.'' — The Law, November, 1874. PRINCIPAL AND AGENT.— Petgrave's Principal and Agent. — A Manual of the Law of Principal and Agent. By E. C. PETGRAVE. 12mo. 1857. 7s. Qd. PRIVY COUNCII Lattey's Handy Book on the Prac- tice and Procedure before the Judicial Com- mittee of Her Majesty's Most Honourable Privy Council.— By ROBERT THOMAS LATTEY, Attor^ 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. %* All itaitUard Laio Works arc Tcept in Mud; in lav: cedf and other hindingg, 22 STEVENS AND SONS' LAW PUBLICATIONS. PROBATE— Continued. Dodd and Brooks' Probate Court Practice,— The Law and Practice of the Court of Probate, Contentious and Common Form: with the Pules, Statutes and Forms. By PHILIP 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. "This hook contains all that such a book should contain. The arrangement is clear and 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*. *** All standard Law Works arc lq<t in Stock, in law calf and other bindings. 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?. *** All standard Law Works arckq>l in Slock, in law calf and other bindings. 24 STEVENS AND SONS' LAW PUBLICATIONS. SHIPPING, and vide " Admiralty." Greenhow's Shipping Law Manual. — A concise Treatise on the Law governing the Interests of Ship Owners, Merchants, Masters, Seamen, and other persons connected with British ships, together with the Acts of Parliament, Forms, and Precedents relative to the subject, being specially intended for 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 the United Kingdom after the 1st January, 1871, and of Former Duties, &c, &c. By EDWARD HUGH TILSLEY, of the Inland Revenue Office. 8vo. 1871. 18*. 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 Master of the Rolls' Chambers. Second Edition, much Enlarged, and Corrected (by a Supplement) to the end of the Session, 1870 ; including References to all the Acts in Chitty's Collection of Statutes. Royal 8vo. 1S70. (Published at 9s. 6d.) A r ett,2s. 6d. Chitty's Collection of Statutes, with Supple- ments, to 1873. — A Collection of Statutes of Practical Utility ; with notes thereon. The Third Edition, containing all the Statutes of Practical Utility in the Civil and Criminal Administration of Justice to the Present Time. By W. N. WELSBY and EDWARD BEAVAN, Esqrs., Barristers-at-Law. In 4 very thick vols. Royal 8vo. 1865. 121. 12s. Supplemental Volume to the above, comprising the Statutes 1865—72. By HORATIO LLOYD, Esq., Barrister-at-Law. Vol. I. Royal 8vo. 1872. 3/. 4s. Vol. II. Part I. for 1873. Sewed. 7s. Qd. Vol. II. Part II. for 1874. Sewed. 6s. *** Continued Annually. lu the Debate on the proposed consolidation of the Statutes, on the 9th of February 1S54, Lord Campbell said "that all the Statutes which were usually required by lawyers lor reference might he found in four octavo volumes, compiled by his learned friend, Mr. Welsby. When he (Lord Campbell) was upon the Bench he always had this work by him, and no statutes were ever referred to by the Ear, which he could no find in it. Lynch's StatLlte Law of 1870, for the use of Student for the Incorporated Law Society's Examinations. 8vo. Sewed. Nett, Is. „ ,, 1872. Svo. Sewed. Nett, Is. ti „ 1873. Svo. Sewed. Nett, Is. 6d, ;, „ 1874. Svo. Sewed. Nett, Is. SUCCESSION DUTY-Diseount Tables, for Calculating the amount of Discount to be allowed on Successions to Real and Leasehold Estates, on a Novel Plan, showing at a glance the Rate and Amount of Discount to be allowed on Successions to Real and Leasehold Estates, when it is desired to pay the duty in advance, under the provisions of the 40th Section of the Statutes 16 and 17 Vict., cap. 51. By an Accountant. 1861. 8vo. Nett, 2s. 6d. *** All standard Law Works are Jcept in Stocky in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 25 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. 11. 18s. 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., Barrister-at-Law. {Ready in December.) WATERS.— Woolryeh on the Law of Waters.— Including Rights in the Sea, Rivers, Canals, &c. Second Edition. 8vo. 851. Nett, 10s. Goddard. — Vide " Easements." WILLS,— Montriou.— Fi'tfe " Indian Law." Rawlinson's Guide to Solicitors on taking In- structions for Wills.— 8vo. 1874. 4s. Williams. — Vide " Executors." WRONGS.— Wife "Torts." A General Catalogue of Modern Law Books preparing for publication. BINDING. STEVENS $c SONS EXECUTE ALL BINDING IN THE BEST MANNER, AT LOWEST PRICES, AND WITH THE GREATEST DISPATCH. THE LAW REPORTS BOUND TO OFFICE PATTERNS, AT OFFICE PRICES. %* All standard Law Works a/relcept in Stool, in law calf and other bindings. 26 STEVENS AND SONS' LAW PUBLICATIONS. REPORTS. STEVENS AND SONS HOLD THE QUIRE STOCK OF THE FOLLOWING, AND HAVE A LARGE STOCK OF SECOND- HAND REPORTS ;-PRICES ON APPLICATION Aclolphus and Ellis, Queen's Bench, 12 vols., 1834-40. „ „ N. S. 15 vols., 1841-50. Barnewall and Adolphus, King's Bench, 5 vols., 1830-34. „ „ Alderson, „ 5 vols., 1817-22. ,, „ Cresswell, „ 10 vols., 1822-30. Barron and Austin, Election Cases, 1 vol., 1842. Barron and Arnold, „ „ 1 vol., 1843-46. Beavan, Rolls Court, 36 vols., 1838-66. Bell, Crown Cases, 1 vol., 1858-60. Calthrop, King's Bench, 1 vol., 1609-18. Cary, Chancery, 1 vol., 1557-1604. Central Criminal Court Sessions Papers {pub- lished after every Session). Clark and Finnelly, House of Lords, 12 vols., 1831-46. Craig and Phillips, Chancery, 1 vol., 1841. Common Bench Reports, vols. 1 to 8, 1845-9. Cooper temp. Cottenham, Chancery, 2 vols., 1834-48. „ temp. Eldon, Chancery, 1 vol., 1815. Curteis, Ecclesiastical, 3 vols., 1834-44. Dearsley, Crown Cases, 1 vol., 1852-56. „ and Bell, Crown Cases, 1 vol., 1856-58. De Gex, Macnaghten and Gordon. Chancery, 8 vols., 1851-57. „ and Jones, „ 4 vols., 1857-60. „ Fisher and Jones, „ 4 vols., 1860-62. „ Jones and Smith, „ 4 vols., 1862-66. 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