1-^ ii ■ Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1S93 IN nenoRY of JUDQE DOUQLASS BOARDMAN FIRST DEAN OF THE aCHOOL By his Wife and Daughter A. M. BOARDMAN anil ELLEN O. WILLIAMS Digitized by Microsoft® Cornell University Library KD 7149.B35 The law and practice of the Supreme cour 3 1924 021 727 783 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Corneii University Libraries, 2007. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021727783 ^ DigitizeV by Microsoft® Digitized by Microsoft® THE lAW- and practice OF THE SUPREME COURT OB JUDICATURE, COMPRISING THE SUPREME COURT OF JUDICATURE ACT, 1873, Supreme Court of Judicature (Commencement) Act, 1874, RULES OF COURT, Motes, Stcbtwtes Referred to, AND A VERY COPIOUS INDEX. WYNNE E. BAXTER, Solicitor cf the Supreme Court. LONDON : BuTTERWORTHS, 7, Fleet Street, Itaio ^puWajerS to tje eaueen'iS Man «Bj;«nEnt dMajedtj}. SiMPKiN, Marshall, & Co., Stationers Hall Court 1874. Digitized by Microsoft® Digitized by Microsoft® TO THB PAST AND PRESENT MEMBERS OF THB ARTICLED CLERKS' SOCIETY, This Velwme is dedicated b$ its Author^ IS B^MSMBILANCB OP The kind support of the profession and of liis early friends, by which he was enabled to found the Society, and of the instruc- tion derived from its meetings during tha lengthened period he was permitted to to act as its Secretary, and IN TUB HOPE That this imperfect Edition of tha most important statute passed this century in relation to the administration ofjustica may assist the Articled Clerk in his •tudies, as weU as the Lawyer in hia pnwstice. Digitized by Microsoft® Digitized by Microsoft® PREFACE, Although the operation of the Supreme Court of Judicature Act 1873 has been postponed to the ist day of Novembei:, 1875, the Lord Chancellor in a speech in the House of Lords on the third reading of the Suspension Bill (6th August, 187 4),, stated " that it was the intention of the Government to pre- ■"sent the Judicature Bills at avery early period of next Session, " and that if Parliament would address itself to them with- ■" out delay there was no reason why the Act of last year *' might not come into operation long before November — ■" may, be, by the ist of May— and it would be entirely com- ■"petent to Parliament to alter the date in the Suspension ■" Bill, and decide on a much earlier one." The interval in either case between the issue of the Rules of Court and the date when this most important Act generally comes into operation, allowing, therefore, no un- necessary time for its study, this volume has been prepared with a view of diminishing the confusion arising from an entire change of procedure in the Courts, by the publication, in a convenient form, of the Act and Rules, at the earliest possible moment. The side notes to the Act are those in the Queen's Printer's Copy, but the author is responsible for those to the Rules of Court. Any corrections of errors or suggestions for improve- ments in future editions will be gladly received. The author is pleased to avail himself of thia,opportunity ©f acknowledging the assistance courteously accorded by Digitized by Microsoft® G. B. Gregory, Esq., M.P. (vice-president of the Incorporated Law Society), by William Grantham, Esq., M.P. (of the Home Circuit), and by Geo. T. Jenkins, Esq. (conveyancing Counsel to Queen Anne's Bounty). , It is hoped that the elaborate and exhaustive character of the Index,- almost amounting to a digest, will more than compensate for any disadvantage which may be felt in the; arrangement of the work. 1 8, Laurence Pounhiey Hill, Cannon Street, E.G., Zand August, 1&74- Digitized by Microsoft® TABLE OF CONTENTS. Supreme Court of Judicature Act, 1873- SECT. SAOX. Preamble ... ... ... ' ... 1 Prelimitimy, 1. Short Title ... ... ... ... 1 2. Commencement of Act ... ... ... ,1 Part I. — Oonstitwtion and Judga of Supreme Court. 3. TTnion of existing Courts into one Supreme Court ... 2 4. Division of Supreme Court into a Court of original and a Court of appellate jurisdiction .„ ... ... 2 5. Constitution of tligh Court of Justice ... ... 2 6. Constitution of Court of Appeal ... ... 3 7. Vacancies by resignation of Judges and effect of vacancies generally ... ... ... ... 5 8. Qualifioat'ons of Judges. Not required to be Serjeants-at-Law 5 9. Tenure of ofBce of Judges, and oaths of oiSce. Judges not to sit in the House of Commons .... ... 5 10. Precedence of Judges ... ... ... 6 11. Saving of rights and obligations of existing Judges ... 6 12. Provisions for extraordinary duties of Judges of the former Courts ... ... ... ... 7 13. Salaries of future Judges ... ... ... 7 14. Eetiring pensions of future Judges of High Court of Justice, and ordinary Judges of Court of Appeal ... ... 8 13. Salaries and pensions how to be paid ... ... 8 Part II. — Jurisdiction and Law, 16. Jurisdiction of High Court of Justice ... ... 9 17. Jurisdiction not transferred to High Court ... ... 10 18. Jurisdiction transferred to Court of Appeal ... ... 11 19. Appeals from High Court ... ... ... 12 20. No appeal from High Court or Court of Appeal to House of Lords, or Judicial Committee ... ... 12 21. Power to transfer jurisdiction of Judicial Committee by Order in Council ... ... ... ... 12 22. Transfer of pending business ... ... ... 14 23. Kules as to exercise of jurisdiction ... ... 15 24. Law and equity to be concurrently administered ... 16 25. Bules of law upon certain points. Administration of assets of insolvent estates. Statutes of Limitation inapplicable to express trusts. Equitable waste. Merger. Suits for possession of land bv mortgagors. Assignment of debts and choses in action. Stipulations not of the essence of contracts. In- junctions and receivers. Damages by colUsious at sea. Infanta. Cases of conflict not enumerated.,, ... 19 Digitized by Microsoft® VIII. Supreme Court of Judiqatore Act, 1873— continued- SECT. EAGB, Pabt 111.— Sittings and Distribution of Business. 26. Abolition of terms ... ■■■ ■ ol 27. Vacations ... ... ••■ •■■ ^^ 28. Sittings in yacation ... ... ' Zt 29. Jurisdiction of Judges of High Court on circuit ... .H 30. Sittings for trial by jury in London and Middlesex ... 25 31. Divisions of the High Co.urt of Justice ... ... 25 32. Power to alter Divisions by Order in Council ... ... 27 33. Bules of Court to provide for distribution of business ... 28 34. Assignment of certain business to particular Divisions of High .. Court, subject to Kules .. .;. ... 29 35. Option for any Plaintiff (subject to Kules), to choose in what Division he will sue ... ... ... 31 36. Power of transfer ... ... ... 32 37. Sittings in London and Middlesex and on Circuits ... 32 38. Kota of JTudges for election petitions ... _ ... 33 39. Powers of one or more Judges not constituting a Divisional Court ... ... ... ... 33 40. Divisional Courts of the High Court of Justice ... 3i 41. Divisional Courts for business of Queen's Bench, Common Pleas, and Eif chequer Divisions ... ... 34 42. I)istributioll of business among the Judges of the Chancery and Probate, Divorce, and Admiralty D^vibiona of the High Court ... ... ... ... 35 43. Divisional Courts for business of the Chancery Division ... 36 44. Divisional Courts for business belonging to the Division ... 36 45. Appeals from inferior Courts to be determined by Divisional . Courts ... ... ... ... 36, 46. Cases and points may be reserved for or directed to be argued before Divisional Courts ,.. ... ... 37 47. Provision for Crown cases reserved ... ... 37 48. Motions for new trials to be heard by Divisional Comrts ... 37 49. What orders shall not be subject to Appeal ... ... 38 50. As. to discharging orders made in Chambers ... ... 38 51. Provision for absence or vacancy in the ofl^ce of a J[udge ... 38 52. Power of a single Judge in Court of Appeal ... ... 39 53. Divisional Courts of Court of Appeal ... ■ ... 39, 54. Judges not to sit on appeal from their own judgments ... 39 55. Arrangements for busmess of Court of Appeal, and for hearing Appeals transferred from the Judicisd Committee of the privy Council ... ... ... 39. Part IV .—Trial and Procedure. 56. Kef erences and assessors i.. ... ... 40 57. Power to direct trials before Kef ereea ... ... 41 58. Power of Referees and effect of their findings... ... 42 59. Powers of Court with respect to proceedings before Referees ... 42 60. Her Majesty may establish District Registries in the country for the Supreme Court ... ... ... 42, 61. Seals of District Registries ... ... "! 43 62. Powers of District Registrars ... ... ' 43 63. Pees to be taken by District Registrar ... ! 43 |4. Prooeediugs to be taken in District Registries ... !.! 43[ Digitized by Microsoft® IX. Supreme Court of Judicature Act, 1873— continued. BEOD. PAGE, 63. Power for Court to remove proceedings from District Begistries 44 66. Accounts and inquiries may be referred to District Kegiatrars... 45 67. 30 and 31 Vict., c. 142, as. 5, 7, 8, and 10 to extend to actions in High Court ... ... ... 45 68. Eules of Court may be made by Order in Council before coin- mencement of the Act. Kules to be laid before Parliament, and may be annulled on address from either House ... 45 69. Rules in Schedule to regulate procedure tiU changed by other rules after commencement of Act ... ... 46i 70. Kules of Prqbate, Divorce, Admiralty, and Bankruptcy Courts to be Rules of the High Court ... ... 47 71. Criminal procedure, subject to future Rules, to remain unaltered 47 72. Act not to affect rules of evidence or juries ... ... 47 is. Saving of existing procedure of Courts when not inconsistent with this Act or Rules ... ... ... 4S 74. Power to make and alter Rules after commencement of Act ... 48 75. Councils of Judges to consider procedure and administration of justice ... ... ... ... 49 76. Acts of Parliament relating to former Courts tp be read as applying to Courts under this Act ... ... 49, Part V. — Officers and Offices. 77. Transfer of existing staff of ofScers to Supreme Court ... 50 78. OfiBoers of Courts of Pleas at Lancaster and Durham ... 52 79. Personal officers of future Judges ... .... 54 80. Provisions as to officers paid out of fees ... ... 55 Si. Doubts as to the status of officers to be determined by Rule ... 55 82. Powers of Commissioners to administer oaths ... ... 55 83. Official Referees to be appointed ... ... 55 84. Duties, appointment, and removal of oi^oers of Supreme Court 56 85. Salaries and pensions of officers .... ... 57 86. Patronage not otherwise provided for ... ... 58, 87. Solicitors and attorneys ... ... ... 58, Part VI. — Jurisdiction of Inferior Courts. ?8. Power by Order in CouncU to confer jurisdiction on inferior Courts. ... ^... ... ... 59 89. Powers of inferior Courts having Equity and Admiralty jurisdiction ... ... ••• ••• 59 90. Counter-claims in inferior Courts, and transfers therefrom ... 60 9L Rides of law to apply to inferior Courts ... ... 60 Pabt VII. — Miscellaneous Provisions. 92. Transfer of books and papers to Supreme Court ... 60 93. Saving ai to circuits, &c. ... ... ... 61 94. Saving as to Lord Chancellor ... ... ... 61 95. Saving as to Chancellor of Lancaster ... ... 61 96. Saving as to Chancellor of the Exchequer and Sheriffs ... 61 97. Saving as to Lord Treasurer and office of the Receipt of ., Exchequer ... ... ... ■■• 62 98. Provisions as to Great Seal being in commission ... 63 99. Provision as to Commissions in Coilnties Palatine ... 62 100. Interpretation of terms ... .-. ■•• ^^ Digitized by Microsoft® Schedule.— Rules of Procedure. NO. Form of Action. PASE. 1. Form of action in High Court ... ... ... 65 Writ of Summom. 2. Actions to be commenced by writ ... ... 65 3. Form of writ ... ... ... ■■. 66 4. Acceptance of service ... ... ... 66 5. Service of writ ... ... ... ... 66' 6. Service out of the jurisdiction ... ... _ _ ... 66 7. Special endorsement oc particulars of debts or liquidated demands. See C. L. P. Act, 1852, ss. 25, 27 ... 66 8. Special endorsement of particulars in cases of account ... 67 Parties. 9. Mis-joinder or non-joinder of parties ... ... 68 10. Representation of parties having same interest ... , 68 11. Power to determine questions as against third parties ... 69 12. Provision for case of doubt as to proper parties ... 69 13. Trustees, executors, &c. ... ... ... 69 14. Actions by married women and infants ... ... 69 15. Parties where there are several liabilities on the same contract. 70 16. Abatement ... ... ... ... 70 17. Form of pleadinsts ... ... ... 70-., 18. Power to settle issues ... ... ... '71^ 19. Counter-claims by defendant ... ... ... 72 20. Power to give jud-jment for defendant for balance under counter-claim ... ... ... 72 21. Joinder of several causes of action ... ... 72 22. Power for Court to raise preliminary questions of law in .in action ... ... ... ... 72 IHscovery. 23. Kightof discovery on interrogatories ... ... 73 24. Production of documents pleaded or proved ... ... 73 25. Discovery as to documents ... ... ... 74 Place of Trial. 26. Place of trial _ ... ... ... ... 74 27. List for trials in London and Middlesex ... ... 74 Mode of Trial.. 28. Mode of trying actions ... ... ... 75 29. Notice of mode of trial to be given ... ... 75 30. Different questions arising in same action may be tried in different ways ... ... ... 75 31. Trials by Jury ... ... ... | 75 32. Proceedings before an official Referee ... '..'. 75 33. Effect of decision of Referee ... ... !. 75 Evidence. 34. Mode of giving evidence at trials ... 76 35. Evidence at interlocutory applioationa 7(v 36. Matter of affidavits ... .;. '"76 37. Admissions ..: ..-. .!,,'_ . . ' " 77 . Digitized by Microsoft® XI, Schedule— Snles of ProoeSiire— contlnned, NO. ; PAGE. Interlocutm-y Orders and Dvpcctumt, 38. Power for party to apply for order before termination of action 77 39. Power to transfer questions arising in actions ... ... 77 40. -Accounts and inquiries ... ... ... 77- 41i Interim orders aa to subject-matter of litigation ... Y& 42. Power to make orders for sale of goods ... ... V8 43. Power for Court to raali% interim orders as to preservation or examination of property, examination of witnesses, &e, ... 7S 44. Discontinuance of action ... ... ... 7* Costs. 45. Costs ... ... ... ... 80 New Trials and Appeals. 46. Eestriotion on new trials ... ... ... 80 47. Abolition of bills of exceptions and proceedings in error ... 80 48. Mode of appealing ... ... ... 80 49. Notice of appeal ... ... ... 801 50. General power of Appeal Court ... ... 81 51. Eegulatiops as to cross appeals... ... ... 81 52. Mode of bringing evidence before Court of Appeal ... 82 53. Power for Court to refer to notes, &e. ... _ _ ... 82 54. Want of appeal from interlocutory order not to limit powers of Court of Appeal ... ... ... 82 5Si Limit of time in appeals ... ... ... 82 56. Appeal not to stay proceedings... ... ... 82 Statutes referred to in the Supreme Court of Judicature Act 1873. Crown Cases Keserved Act, (11 and 12 Vict., chap.' 78> ... 84 Common Law Procedure Act, 1854 (17 and 18 Vict., chap. 125) 87 Tne County Courts Act, 1867 (30 and 31 Vict., chap. 142) ... 91 The Promissory Oaths Act, 1868 (31 and 32 Vict., chap. 72) ... 93 Common Jj&vr Procedure Act, 1852 (15 and 16 Vict., chap. 76)... 9ft Parliamentary Elections Act, 1868 (31 and 32 Vict., chap. 125) 101 Courts of Justice Act, 1869 (32 and 33 Vict., chap. 91) ... 103 Judicial Committee Act. 1871 (34 and 35 Vict., cap. 91) ... ]2& Trustees Kelief Act, 1847 (10 and 11 Vict. , cap. 96) ... 130 Trustees KeHef Act, 1849 (12 and 13 Vict., cap. 74) ... 132 Kotes. MO. 1. The Jurisdiction of the Judicial Committee of Her Majesty's Privy Council ... ... ... 133- 2. Court ... ... ... ... 133 • 3. Short Title ... ... ... -. 134 4. Except any provision thereof jvhich is declared to take eSect on the passing of this Act ... ... ••• 134 5. The High Court of Chancery of England ... ... 134 6. The Court of Queen's Bench ... ... ...138 7. The Court of Common Pleas ... ... ...139 8. The Court of Exchequer ... ... ...140 9. The High Court of Admiralty ... ... ... 142 10. -The Court of Probate ... ... ...144 11. The Court for Divorce and Matrimonial Causes ... 14& Digitized by Microsoft® XII. Notes— continued. po. ^^^^ 12. The London Court of Bankruptcy ... - 146 13. The Judges ... ... •■■ - Jfb 14. The Lord Chancellor ... ••■ ...147 15. The Lord Chief Justice of England ... ... 148 16. The Master of the Rolls ... ... ...149 17. The Lord Chief Justice of the Common Pleas.... ... 150 18. The Lord Chief Baron of the Exchequer ... ... 159 19. The several Vice Chancellors of the High Court of Chancery... 150 20. The Judge of the High Court of Admiraltjr ... ... 151 21. Except such, if any, of the aforesaid Judges as shall be appointed ordinary Judges of the Court of Appeal ... 151 22. .Letters Patent ... ... ... ... 151 23. Precedence ... ... ... ••• 151 24. Superior Courts of Common Law ... ... 152 25. The permanent number of Judges of the said High Court ... 154 '26. Such three other persons ... ... ... 154 27. Scotland ... ... ... ... 154 28. Ireland . ... ... ... ... 155 29. India ... ... ... ... 155 .30. Barrister of Ten Years' Standing ... ... 157 31. Qualified by law to be appointed a Lord Justice of the Court of Appeal in Chancery ... ... ...157 32. Lords Justices of the Court of Appeal it Chancery ... 157 33. The Degree of Serjeant-at-Law... ... ... 157 34. The Oaths to be taken by the Lord Chancellor... ... 158 35. Peers ... ... ... ... 159 36. Commissions of Assize ... ... ... 159 37. Assize ... ... ... ... 160 ,38. Nisi Prius ... ... ... ... 162 39. Oyer and Terminer ... ... ... 162 40. Gaol Delirery ... ... ... ... 162 ,41. Salary of the Lord Chancellor ... ... ... 163 42. Salary of the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Excheqiuer ... ... ... 164 .43. Salary of the Master of theEqJla ... ... 164 .44. Salary of each (^ the other Judges ... ... 164 .45. The Pension of the Lord Chief justice of England ... 164 46. The Pension of the Master of the Bolls ... ... 165 .47. The Pension of the Lord Chief Justice of the Common Pleas... 165 48. The Pension of the Lord Chief Baron of the Exchequer ... 165 49. The Pensions of Ordinary Judges of the .Court of Appeal, and of any other Judge of Her Majesty's High Court of Justice ... ... ... ... 165 50. Court of Kecord... ... ... ... 165 .51. The Jurisdiction of the High Court of Chancery as a Common Law Court as well a Court of Equity ... ... 166 52. The Jurisdiction of the Court of Queen's Bench ... 167 63. The Jurisdiction of the Court of Common Pleas at Westminster 168 |54. The Jurisdiction of the Court of Exchequer ... ...168 55. The Jurisdiction of the High Court of Admiralty ... 169 56. The Jurisdiction of the Court of Probate .. ... 170 57- The Jurisdiction of the Court for Divorce and Matrimonial Causes ... ... ... ijo Digitized by Microsoft® XIII: ifotes— continued. so. . . . • PAGE. 58. The Juriadiction of the iiondon Court of Bankruptcy ... 171 59. The Court of Common Pleas at Lancaster ... ... 172 60. Lancaster ... ... ... ... 173 61. The Court of Pleas at Durham... ... ...173 62. County Palatine... ... ... ... 174 63. Lunatics ... ... ... ... 174 64. The Great Seal of , the United Kingdom ... ... 178 65: Duchy of Lancaster ... ... ... 179 66. The Court of the Lord Warden of the Stannaries ... 179 67. Jurisdiction in Lunacy ... ... ... 180' 68. Save as hereinafter mentioned ... ... ... 180' 69; Prior Judgment and Order ... ... ... 180 70. The Jurisdiction Transferred ... ... ... 181 71. Law and Equity.;. ... ... ...182' 72. No Cause shall be Restrained by Prohibition ... ...182 73. No Cause shall be Restrained by Injunction ... ... 182 74. Administration of Assets of Insolvent Estates... ... 182 75. Express Trust ... ... ... ...183 76. Statutes of Limitations ... ... ,.. 183 77. Equitable Waste ... ... ... 184 78. Merger ... ... ... ... 18& 79. Chosein Action ... ... ... ... 185 80. The Acts for the Belief of Tmstees ... ...186 81. Stipulations in Cont*aot8 ... ... ... 187 82. Mandamus ... ... ... ... 187 83. Injunction .... ... ... ... 18» 84. Such Injunction may be granted if the Court shall think fit ... 188 85. Damages by Collisions at Sea ... ... ... 18S 86. Questions relating to the Custody and Education of Infants ... 188* 87. Terms ... ... ... ... 189 88. Circuits ... ... ... ... 190 89. The County Courts ... ... ... 190 90. Criminal Trials ... ... ... ...193 91. Mve of them at the least ... ... ... 193- 92. One of such chiefs at the least shall be part ... ... 193 93. Every motion for a new trial .,. ... ... 193 94. Judges not to sit on Appeal from their own judgments ... 193 95. Acts relating to the Judicial Committee ... ... 193 96. Such right as may now exist to have particular cases submitted to the verdict of the Jury ... ... ... 193 97. The Common Law Procedure Act, 1854 ... ... 194 98. Prothonotary or District Prothonotary of any Local Court ... 194- 99. The County Courts Act, 1867 ... ... ... 194 100. The Law relating to Jurymen or Juries ... ... 194 101. All Acts of Parliament relating to the several Courts and Judges 195 102. Queen's Bemembraucer ... ... ... 19& 103. Masters ... ... ... ... 196 104. Secretaries, Begistrars ... ... ... 196 105. Clerks of Eecords and Writs ... ... ... 196 106. Associates ... ... ... ... 196' 107. Prothonotaries ... ... ... ... 196 108. Chiefs or other Clerks ... ... ... 196 109. Commissioner to Administei' Oaths ... ... 196 110. Solicitors, Attorneys, and Prostora ... „. 197 Digitized by Microsoft® XIV. Kotes— continued. NO. PAO" 111. Position of Lord Chancellor ... ... •■• 1; 112. Commissioners of Her Majesty's Treasury ... ...IS 113. Act of Parliament ... ■•■ , •■ „ 114. Writ ... ... - - 2( Kules of Court. Order J.-rWrit of Summons and procedure, &c. ... 20 Ordei- 7/.— Indorsements of Claim ... ... 2( Order III. — Indorsement of Address ... ... 2C Ortier JF.— Issue of Writs of Summons ... ... 2C Order V. — Concurretit Writs ... ... ... 20 Order VI. — Disclosure by Solicitors and Plaintiffs ... 20 Order FJJ. -Renewal of Writ... ... ...21 Order VIII. — Service of Writ of Summons ... ... 21 Order /X.— Substituted Service... ... ...21 Order X. -Service out of the Jurisdiction ... ... 21 Order XI. — Appearance ... ... ... 21 Order XII. — Default of Appearance ... ... 21 Order XIII. — Leave to Defend where Writ specially Indorsed 22 Order XIV. —Application for Account under Rule 8 of Schedule to the Act ... ... ...22 Order XF.— Parties ... ... ... 22 Order XF/.— Joinder of Causes of Action ... ...22 Order XVII. — Actions by and and against Lunatics and Per- sons of unsound Mind ... ... ... 22 Order XF//7.— Pleading; Generally ... ...22 Order XIX. — Pleading Matters arising pending the Action ... 23 Order XX.— Statement of Claim ... ... 23 Order XX/.— Defence ... ... ... 23 Order XXII. — Reply and Subsequent pleadings ... 23 Order XXJ/7.— Close of Pleadings ... ... 23 Order XX/F.— Amendment of Pleadings ... ... 23 Order XXF.— Demurrer ... ... ... 23 Order XXFJ.— Default of Pleading ... ...24 Order XXVII. — Payment into Court in Satisfaction ... 24 Order XXVIII. — Discovery and Inspection ... ... 24 Order XXIX. — Admission of Documents ... ...24 Order XXX. — Questions of Law without Pleadings ... 24 Order XXX/.— Proceedings in District Registries ... 25 Order XXX//.— Trial ... ■ ... ... 25 ■Order XXX///.— Evidence by Affidavit ... ...25 Order XXX/F.— Motion for New Trial ... ...25 Order XXXF. ^Motion for Judgment ... ... 25 Order XXXF/.— Entry of Judgment , ... ...26 Order XXXF//.— Execution ... ... ... 26 Order XXXF///.— Writs of Fieri Facias and Elegit ... 26 Order XXX/X.- Attachment ... ... ... 26 Order XL. — Attachment of Debts ... ...26 Order Xi/.— Charging of Stock or Shares and Distringas ... 27 Order Xi//.— Writ of Sequestration ... ... 27 ■Order Xi///.— Writ of Possession 27 Order Xi/F.— Writ of Delivery ., "27 Order XiF.— Change of Parties by Death Ac...! !'. 27 Order XZrF/.— Transfers and Consolidation ... .27 Digitized by Microsoft® XV. Sules of Court- ooxLtinued. PAQS. Order XLVII. — Interlocutory Orders as to Mandamus In- junctions or Interim Preservation of Property, &o. ... 273 Order XiF7/i.— Motions and other Applications ... 274 Order XLIX. — Applications at Chambers ... ... 276 Order L. — Notices and Paper, &c. ... ...277 Order LI. — Time ... ... ... 278 Order LII. — Appeals ... ... ... 279 Order LIII. — Effect of Non-compliance ... ... 281 Order £JF.— Officers ... ... ... 281 Order LV: — Sittings and Vacations ... ... 282 Order LVI. — Exceptions from the Kulea ... ... 285 Order LYII. — Interpretation of Terms ... ...285 Schedule A to the Bules of Court. Part I. No. 1. General Form of Writs of Summons ... 287 No. 2. Writ for Service out of the Jurisdiction, or where notice in Ueu of Service is to be given out of the Jurisdiction ... ... ... 287 No. 3. Notice of Writ in lieu of Service to be given out of the Jurisdiction ... ... 288 No. 4. Writ in Admiralty action in rem ... 288 No. 5. Form of Memorandum for Eenewed Writ ... 288 No. 6. Memorandum of Appearance ... ... 289 No. 7. Notice— Ijimitation of defence ... ... 289 Part II. Section I. General Indorsements^ In matters assigned by the 34th Section of the Act to the Chancery Division No. 1. Creditor to Administer Estate ... ... 289 No. 2. Legatee to Administer Estate ... ... 289 No. 3. Partnership ... ... ... 289 No. 4. By Mortgagee ... ... ... 289 No. 5. By Mortgagor ... ... ... 290 No. 6. Ilaising Portions... ... ... 290 No. 7. Execution of Trusts ... ... 290 No. 8. Cancellation or Eectifioation ... ... 290 No. 9. Specific Performance ... ... 290 Part II, Section II. General Indorsements. Money Claims where no Special Indorsement under Kule 7 in Schedule to Act ... ... ... 290 Part IL Section III. Indorsement for Costs &c. ... 293 Part IL . Section IV. Indorsements for Damages and other Claims ... ... ... 293 Fart II, Section V. Probate Indorsements ... ... 297 No. 1. By an Executor or legatee propounding a will in solemn form ... ... ... 297 No, 2. By an Executor or legale of a former will, or a next of kin, &c., of the deceased seeking to obtain the revocation of a Probate granted in common form ... 297 No. 3. By an executor or legatee of a will when letters of administration have been granted as in an intestacy 297 No, 4. By a person claiming a grant of administration as a next of kin of the deceased, but whose interest as next of kin is disputed ... ...297 Digitized by Microsoft® XVT^ Schedule A to the Utiles of Court— continued. Part 11. Section VI. Admiralty Indorsements ... ... 2! No. 1. Damages to vessel by collision ... ... 2! No. 2. Damage to cargo by collision ... ... 2i No. 3. Damage to cargo otherwise ' ... ... 2i No. 4 to 9. In causes of possession ... ... 2! No. 10 and ll. By a part owner of a vessel ... 2! No. 12. By salvors ... ... ... 2i No. 13. Claim for towage ... ... 2E No. 14. Seamen's wages... ... ... 2£ No. 15. Por necessaries ... ... ... 2i Part II. Section VII. Special Indorsements under Clause 7 of , the Schedule ... c ... ... 2! Part II. Section VIII. Indorsements of Character of Parties ... 35 SchedtQe B to the Bules of Court. Porm 1. Notice by Defendant to third party ... 3C Porm 2. flaintifi's confession df defence ... 3C Porm 3. Notice that particulars are endorsed on writ 30 Porm 4. Notice of judgment on counterclaim by de- default ... ... ... 3C Porm 5. Notice of Payment into Court ... 3C Perm 6. Acceptance of Sum paid into Court ... 3C Porm 7. Porm of Interrogatories ... ... 3C Porm 8. Porm of Answef to Interrogatories ... 3C Porm 9. Porm of Affidavit as to Documents ... 3C Porm 10. Porm of Notice to produce Documents ... 30 Porm 11. Porm of Notice to inspect Documents ... 3C Porm 12. Porm of Notice to admit Documents ... 30 Porm 13. Setting down Spepial Case ... ... 3C Porm 14. Porm of Notice of Trial ... ... 30 Schedule C to the Rules of Court. No. i. Porm of Demurrer ... ... 30 No. 2. Memorandum of Entry of Demurrer for Argu- ment ... ... ... ... 3C Supreme Court of Judicature (commencement) Act, 1874. Sect. Preamble ... ... ... 30 1. Eepeal of sec. 2, of 36 and 37 Vict., c. 66 ... 30 2. Commencement of Supreme Court of Judicature, 1873 30 Short title of Act ... ... ... 3C Index 3C Digitized by Microsoft® JUDICATURE ACT. 36 and 3y Vict., chap. 66. An Act for the constitution of a Supreme Court, and for other purposes relating to the better Administration of Justice in England; and to authorise the transfer to the Appellate "Division of such Supreme Court of the Jurisdiction of the Judicial Committee of Her Majesty's Privy, Council. I [Sth August, 1873.] Whereas it is expedient to constitute a Supreme Court, and to make provision for the better admin- istration 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 rhost 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 Commence- is declared to take effect on the passing of this Act, """ ° shall commence and come into, operation on the second day of November, 1874. A Digitized by Microsoft® JUJJlUAiUKl!, Ai;i, JO/5' PART I. 8 3, 4, 5 Constitution and Judges of Supreme Court. Union o£ 3. From and after the time appointed for the CffurS^iuto commencement of this Act, the several Courts cSS"'™™ herein-after mentioned, (that is to say,) The High Court of Chancery of England, the Court of Queen's Bench, the Court of Common Pleas at Westminster, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, the Court for Divorce and Matrimonial Causes, and the London Court of Bankruptcy, shall be united and consoli- dated together, and shall constitute, under and subject to the provisions of this Act, one Supreme Court of Judicature in England. Division oi 4. The said Supreme Court shall consist of two court'into a permanent Divisions, one of which, under the name Court of of "Her Majesty's High Court of Justice," shall a'tourt *° have and exercise original jurisdiction, with such juSSuon appellate jurisdictionfrominferiorCoiurts as ishereia- after mentioned, and the other of which, imder the name of " Her Majesty's Court of Appeal," shall have and exercise appellate jurisdiction, with such original jurisdiction as herein-after mentioned as may be incident to the determination of any appeal. Constitution 5. Her Majest/s High Court of Justice shall be co^^rf constituted as follows :— The first Judges thereof Justice. shall be the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, the several Vice- Chancellors of the High Court of Chancery, the Judge of the Court of Probate and of the Court for Divorce and Matrimonial Causes, the several Puisne Justices of the Courts of Queen's Bench and Common Pleas respectively, the several Junior Barons of the Court of Exchequer, and the Judge of the High Court of Admiralty, except such, if any, of the aforesaid Judges as shall be appointed ordmary Judges of the Court of Appeal. Digitized by Microsoft® PART I. CONSTITUTION, AND JUDGES. 3 Subject to the provisions herein-after contained, ^ S' ® 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 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 who shall be appointed to fill the place of any other Judge of the said High Court of Justice shall be styled in his appointment " Judge of Her Majesty's High Court of Justice," and shall be appointed in the same manner in which the Puisne Justices and Junior Barons of the Superior Courts of Common Law have been heretofore appointed : Provided always, that if at the commence- ment of this Act the number of Puisne Justices and Junior Barons who shall become Judges of the' said High Court shall exceed twelve in the whole, < no new Judge of the said High Court shall be' appointed in the place of any such Puisne Justice< or Junior Baron who shall die or resign while such| whole number shall exceed twelve, it being intended; that the permanent number of Judges of the said High Court shall not exceed twenty-one. All the Judges of the said Court shall have in all respects, save, as in this Act is otherwise expressly provided, equal power, authority, and jurisdiction ; md shall be addressed in the manner which is now :ustomary in addressing the Judges of the Superior [Courts of Common Law. i The Lord Chief Justice of England for the time jeing shall be President of the said High Court of Tustice in the absence of the Lord Chancellor. 6. Her Majesty's Court of Appeal shall be con- Constitutiofl itituted as follows : — There shall be five ex officio AppS* '* J udges thereof, and also so many ordinary Judges Digitized by Microsoft® 4 JUDICATURE ACT, I»73. 5 6 (not exceeding nine at any one time) a% Her Majesty shall from time to time appoint. The ex- officio Judges shall be the Lord Chancellor, the Lord Chief Justice of Eiigland, 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 existing Lords Justices of Appeal in Chancery, the existing salaried' Judges of the Judicial Com- mittee of Her Majesty's Privy Council, appointed under the "Judicial Committee Act, 1871," and such three other persons as Her Majesty may be pleased to appoint by Letters Patent ; such appoint- ment may be made either within one month before or at any time after the day appointed for the commencement of this Act, but if made before shall take effect at the commencement of this Act. Besides the said ex officio Judges and ordinary Judges, it shall be lawful for Her' Majesty (if she shall think fit), from time to time to appoint, under Her Royal Sign Manual, as additional Judges 01 the Court of Appeal, any persons who, having held in England the office of a Judge of the Superior Courts of Westminster hereby united and con- solidated, or of Her Majesty^s Supreme Court hereby constituted, or in Scotland the office of Lord Justice General or Lord Justice Clerk, or in Ireland the office of Lord Chancellor or Lord Justice of Appeal, or in India the office of Chief Justice of the High Court of Judicature at Fort William in Bengal, or Madras, or Bombay, shall respectively signify in writing their willingness to serve as such additional Judges in the Court of Appeal. No such additional Judge shall be deemed to have under- taken the duty of sitting in the Court of Appeal when prevented from so doing by attendance in the House of Lords, or on the discharge of any other public duty, or by any other reasonable impediment. The ordinary and additional Judges of the Court of Appeal shall be styled Lord Justices of Appeal. Digitized by Microsoft® PATT r. CONSTITUTION AND JUDGES. 5 ' All the Judges of the said Court shall have, in all § ^- ''• ^- » respects, save as in this Act is otherwise expressly ""^ ~=^ mentioned, equal power, authority, and jurisdiction. Whenever the office of an ordinary Judge of the Court of Appeal becomes 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. 7. The office of any Judge of the said High VacaucJestjj Court of Justice, or of the said Court of Appeal, otTdg^" may be vacated by resignation in writing, under ™recedence of Judges. °' ^°' " 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. 10. The ex officio Judges of the Court of Appeal shall rank in the Supreme Court in the order of their present respective official precedence. The other Judges (whether ordinary or additional) of the Court of Appeal shall rank in the Supreme Court, if Peers or Privy Councillors, in the order of their respective precedence ; and the rest of the Judges of the Court of Appeal shall rank according to the priority of their respective appointments to be Judges thereof. The Judges of the High Court of Justice, who are not also Judges of the Court of Appeal, shall rank next after the Judges of the Court of Appeal, and among themselves (subject to the provisions herein- after 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 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 disquahfications, remain in the same condition as if this Act had not passed ; and, subject to the change effected in their jurisdiction and duties by or in pursuance of the provisions of this Act, each of the said existing Judges shall be capable of performing and liable to perform all duties which he would have been capable of performing or liable to perform in pursuance of any Act of Parliament, law, or custom if this Act had not passed. No Judge appointed before the passing of this Act shall be required to act under any Commission of Assize, Nisi Prius, Oyer and Terminer, or Gaol Delivery, unless he was so liable ; Saving of 'rights and obligations of existing Judges. Digitized by Microsoft® PART I. CONSTITUTION AND JUDGES. 7 by usage or custom at the commencement of this ^ ^'' ^^' ^® Act. -.' Service as a Judge in the High Court of Justice, or in the Court of Appeal, shall, in the case of an existing Judge, for the purpose of determining the length of service entitling such Judge to a pension on his retirement, be deemed to be a continuation of his service in the Court of which he is a Judge at the time of the commencement of this Act. 1 2. If, in any case not expressly provided for by ^™^^ this Act, a liability to any duty, or any authority or ordinary power, not incident to the administration of justice in jud^s°of any Court, whose jurisdiction is transferred by this theiormer Act to the High Court of Justice, shall have been imposed or conferred by any statute, law, or custom upon the Judges or any Judge of any of such Courts, save as herein-after mentioned, every Judge of the said High Court shall be capable of performing and exercising, and shall be liable to perform and empowered to exercise every such duty, authority, and power, in the same manner as if this Act had not passed, and as if he had been duly appointed the successor of a Judge liable to such duty, or possessing such authority or power, before the pass- ing 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 performed and exercised by them respectively, and by their respective successors, in the same manner as if this Act had not passed. 13. Subject to the provisions in this Act con- ^^J^|" "^ tained with respect to existing Judges, there shall judges, be paid the following salaries, which shall in each case include any pension granted in respect of any public office previously filled by him, to which the Judge may be entitled ; To the Lord Chancellor, the sums hitherto pay- able to him ; Digitized by Microsoft® JUi>lCATUKlt ACT, IO73. ^ ft 13. 14, 15 To the Lord Chief Justice of England, the ' Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, the same annual sums which the holders of those offices now respectively receive ; To each of the ordinary Judges of the Court of Appeal ; and To each of the other Judges of the High Court ; of Justice, the sum of five thousand pounds a year. No salary shall be payable to .any 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 additional Judge to any pension to which he may be by law entitled. Retiring 1 4. Her Majesty may, by Letters Patent, grant fature™ " to any Judge of the High Court of Justice, or to Hi'^h'court ^^^ Ordinary Judge of the Court of Appeal who of Justice, has served for fifteen years as a Judge in such mry^judges Courts, or either of them, or who is disabled by of Court of permanent infirmity from the performance of the ^^^ duties of his office, a pension, by way of ajinuity, to be continued during his life : In the case of the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron of the Exchequer, the same amount of pension which at present might under the same circumstances be granted to the holder of the same office : In the case of any ordinary Judge of the Court of Appeal or any other Judge of the High Court of Justice, the same amount of pension which at present might under the same circumstances be granted to a Puisne Justice of the Court of Queen's Bench. ^ peJSim,*"'' .^5- Subject to the provisions in this Act con- tow to be tained with respect to existing Judges, the salaries. If"*- allowances, and pensions payable to the Judges of Digitized by Microsoft® PART II. JURISDICTION AND LAW. .9 the High Court of Justice, and the ordinary Judges * ^^' ^® of the Court of Appeal respectively, shall be charged on and paid out of the Consolidated Fund of the United Kingdom of Great Britain and Ireland, or the growing produce thereof : such salaries and pensions shall grow due from day to day, but shall be payable to the persons entitled thereto, or to their executors or administrators, on the usual quarterly days of payment, or at such other periods in every year as the Treasury may from time to time determine. PART II. Jurisdiction and Law. 16. The High Court of Justice shall be a Superior jurisdictioii Court of • Record, and, subject as in this Act coS?of mentioned, there shall be transferred to and vested Justice. in the said High Court of Justice the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any of the Courts following; (that is to say,) (i.) The High Court ©f 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. J The Court of Queen's Bench ; (3.J 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 ; Digitized by Microsoft® 10, JUDICATURE ACT. 1873. ^ ^°- ^'^ ^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 ex- ceptions herein-after contained) the jurisdiction which, at the commencement of this Act, was vested in, or capable of being exercised by, all or any one or more of the Judges of the said Courts, respectively, sitting in Court, or Chambers, or else- where, 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 jurisdictions so transferred, juriadiotion 1 7. There shall not be transferred to or vested lemdto' in the said High Court of Justice, by virtue of this Eigh Court. Act, — (i.) Any appellate jurisdiction of the Court of Appeal in Chancery, or of the same Court sitting as a Court of Appeal in Bankruptcy : (2.) Any jurisdiction of the Court of Appeal in Chancery of the County Palatine of Lancaster : (3.) Any jurisdiction usually vested in the Lord Chancellor or in the Lords Justices of Appeal in Chancery, or either of them, in relation to the custody of the persons and estates of idiots, lunatics, and persons of unsound mind : (4.) Any jurisdiction vested in the Lord Chan- cellor in relation to grants of Letters Patent, or the issue of commissions or other writings, to be passed under the Great Seal of the United Kingdom : Digitized by Microsoft® IfART II. JURISDICTION AND LAW. 1 1 (5.) Any jurisdiction exercised by the Lord ' ^'^• Chancellor in ri^ht of or on behalf of Her Majesty as visitor of any College, or of any charitable or other foundation : (6.) Any jurisdiction of the Master of the Rolls in relation to records in London or else- where in England. 18. The Court of Appeal established by this f^^^^ Act shall be a Superior Court of Record, and there to court shall be transferred to and vested in such Court all app«=^ jurisdiction and powers of the Courts following ; (that is to say,) (i.) AH jurisdiction and powers of the Lord Chancellor and of the Court of Appeal in Chancery, in the exercise of his and its appellate jurisdiction, and of the same Court as a Court of Appeal in Bankruptcy : (2.) All jurisdiction and powers of the Court of Appeal in Chancery of the county 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 Jiidge 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 when sitting in his capacity of Judge : (4.) AUjunsdiction and powers of the Court of Exchequer Chamber : (5.) All jiuisdiction vested in or capable of being exercised by Her Majesty in Council, or the Judiaial Committee of Her Majesty's Privy Council, upon appeal from any judg- ment or order of the High Court of Admiralty, or from any order in lunacy Digitized by Microsoft® JUDICATURE ACT, 1873, S 19, 20, 21 Appeals from High Court. Wo appeal from High Court or Court of Appeal to House of IjOrds. or Judicial Committee, Power to transfer jurisdiction of Judicial Committee by Order in Council. made by the Lord Chancellor, or any other ■ person having jurisdiction in lunacy. 19. The said Court of Appeal shall have jurisdiction and power to hear and determine Appeals from any judgment or order, save as herein-after 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 allowed, as may be 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. 20. No 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, subsequent 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 Privy Council, from any prior judgment or order of any Court whose jurisdiction is hereby transferred to the High Court of Justice or to the Court of Appeal. 21. It shall be lavvful for Her Majesty,' if she shall think fit, at any time hereafter by Order in Council to direct that all Appeals and Petitions whatsoever to Her Majesty in Council which according to the laws now in force ought to be Digitized by Microsoft® (PART II. JURISDICTION AND LAW. I3 heard by or before the Judicial Committee of Her * ^^ Majesty^s Privy Covmcil, shall, from and after a "^ ' time to be fixed by such Order, be referred for hearing to and be heard by Her Majesty's Court of Appeal ; and from and after the time fixed by such Order, all such Appeals and Petitions shall be referred for hearing to a!nd 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 juris- diction now by law vested in the said Judicial Committee shall be transferred to and vested in the said Court of Appeal. The Court of Appeal, when hearing any appeals in Ecclesiastical Causes which may be referred to it in manner aforesaid, shall be constituted of such 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 Rules made with the advice of the I Judges of the said Court, or any five of them (of^ whom the Lord Chancellor shall be one), and of the/ Archbishops and Bishops who are members of Her, Majest/s Privy Council, or any two of them (and which General Rules shall be made by Order inj Council), may think fit to direct : Provided thatj such rules shall be laid before each House off Parliament within forty days of the making of the' same, if ParUament be then sitting, or if not, then within forty days of the commencement of the then. next ensuing session ; and if an address is presented" to Her Majesty by either House of Parliament; within the next subsequent forty days on which the Digitized by Microsoft® 14 JUDICATURE ACT, 1873. ^ ^^' ^^ 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. DCTdirf' °' 22. From and after the commencement of this business. Act the several jurisdictions which by this Act are transferred to and vested in the said High Court of Justice and the said Court of Appeal 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 transferred shall be made except as provided by this Act : Provided, that in all causes, matters, and proceedings whatso- ever 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 commencement of this Act, such judgment, decree, rule, or order may be given or made, signed, drawn up, passed, entered, or perfected respectively, after the com- mencement 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 commencement 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 and enforced, and, if necessary, amended or discharged by the said High Court of Justice and the said Court of Appeal respectively, in the same manner as if it had. .teen Digitized by Microsoft® PART II. JURISDICTION AND LAW. 1 5 a judgment, decree, rule, or crder of the said High ^ ^^' ^^ Court or of the said Court of Appeal; and all causes, matters, and proceedings whatsoever, whether Civil or Criminal, which shall be pending in any of the Courts whose jurisdiction is so transferred as afore- said at the commencement of this Act, shall be continued and concluded, as follows (that is to say), in the case of proceedings in Error or on Appeal, or of proceedings before the Court of Appeal in Chancery, in and before Her Majesty's Court of Appeal ; and, as to all other proceedings, in and before Her Majesty's High Court of Justice. The said Courts respectively shall have the same juris- diction 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 procediure, such causes, matters, and proceedings, or any of them, may be continued and concluded, in and before the said Courts respectively, either in the same or the like manner as they would have been continued and concluded in the respective Courts from which they shall have been transferred as aforesaid, or according to the ordinary course of the said High Court of Justice and the said Court of Appeal respectively (so far as the same may be applicable thereto), as the said Courts respectively may think fit to direct. 23. The jurisdiction by this Act transferred to Kuies m to the said High Court of Justice and the said Court juScUoo. of Appeal respectively shall be exercised (so far as regards procedure and practice) in the manner provided by this Act, or by such Rules and Orders of Court as may be made pursuant to this Act ; and where no special provision is contained in this Act or 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 Digitized by Microsoft® l6 JUDICATURE ACT, 1873. § 23, 24 gyj,jj jurisdiction shall have been transferred or by any of such Courts. Law and 24. In every civil cause or matter commenced in concmrentiy the High Court of Justice law and equity shall be adminis-, administered by the High Court of Justice and the Court of Appeal respectively according to the Rules following : (i.) If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim what- soever asserted by any defendant 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 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. (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 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 equitable defence so alleged, such and the same effect^ by way of defence against the claim of "such plaintiff or petitioner, as the Court of Chancery ought to have given if the same or the Digitized by Microsoft® PART II. JURISDICTION AND LAW.' 17 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 legaP estate, right, or title claimed or asserted by him, all such relief against any plain- tiff 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 re- lating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who shall have been duly served with notice in writing of such claim pursuant to any Rule of Court or any Order of the Court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose ; and every person served with any such notice shall thenceforth be deemed a party to such cause or matter, with the same rights in respect of his defence against such claim, as if he had been duly sued in the ordinary way by such defendant. ^ (4.) The said Courts respectively, and every Judge thereof, shall recognise and take notice of all equitable estates, titles, and rights and all equitable duties and liabili- ties appearing incidentally in the course , B Digitized by Microsoft® ' l8 JUDICATURE ACT, 1873. ^ ^* of any cause or matter, in the same man- ner in which the Court of Chancery would have recognised and taken notice of the same in any suit or proceeding duly instituted therein before the passing of this Act. (5.) No cause or proceeding at any time pending in the High Court of Justice, or before the Court of Appeal, shall be restrained by prohibition or injunction; but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained, if this Act had not passed, either uncon- ditionally or on any terms or conditions, may be relied on by way of defence 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 matterpending before it if it shall think fit ; and any per- son, whether a party or not to any such cause or matter, who would have been entitled, if this Act had not passed, to apply to any Court to restrain the prosecu- tion thereof, or who may be entitled to enforce, by attachment or otherwise, any Judgment, Decree, Rule, oi Order, con- trary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the said Courts respectively, by motion in a summary 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 forgiving effect to equilab'e rights and other matters of equity in manner aforesaid, and to the Digitized by Microsoft® PART II. JURISBICTION AND LAW. 1 9 Other express provisions oi this Act, the ' ^*' ^® said Courts respectively, and every Judge * thereof, shall recognise and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, ' and Mabilities existing by th©- Common Law or by any custom, or created by any Statute, in the same manner as the sam& vifQuld have been recognised 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 ofi Justice. {7.) The High Court of Justice and the Court of Appeal respectively, in the exercise ofi the jurisdiction vested in them by this' Act in every cause or matter pending! before them respectively, shall have poweri to grant, and shall grant, either absolutely or on such reasonable terms and condi- tions 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 re- spectively ™3-y be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided. 25. And whereas it is expedient to take occasion 5^,^^ of the union of the several Courts whose jurisdic- points, tion is hereby transferred to the said High Court of Justice to amend and declare the Law to be here- after administered in England as to the matters next hereinafter mentioned : Be it enacted as follows : (i.) In the administration by the Court of the «o^^^ assets of any person who may die after oj insolvent ' the passing of this Act, axad whose estate ^''*'*'- Digitized by Microsoft® 20' , ' judicature; Act, 1S73. ^ ^ ^ may prove to be insufficient for the pay- '*" ment in full of his debts and liabilities, ithe same rules shall prevail and be ob- served as to the respective rights of secured and unsecured creditors, and as fo 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 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 divi- dends out of the estate of any such ■deceased person may come in under the decree or order for the administration of such estate and make such claims against the same as they may respectively be entitled to by virtue of this Act. S^'taSo^ (2.) No claim of a cestui que trust against his !taippUo»Ue trustee for any property held on an express ^J?^™' trust, or in respect of any breach of such trust, shall be held to be barred by any Statute of Limitations. Stable (2.) 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, j unless an intention to confer such . right , shall expressly appear by the instrument creating such estate. ■Merger, ^^^ There shall not, after the commencement of ithis 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. ^ iSs^onot (S-) A mortgagor entitled for the time being to ■'■■nd by the possession or receipt of the rents and " ""' ° profits of any land as to which no notice of his intention to take possession pi to Digitized by Microsoft® mortgagors. PART II. JURISDICTION AND LAW. 21 enter into the receipt of the rents 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. (6.) Any absolute assignment, by writing under Assignment - the hand of the assignor (not purportmg ohoaes in to be by way of charge only), of any debt "o"""- or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, with- out the concurrence of the assignor : Pro- vided 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 conflict- ing claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice under and Digitized by Microsoft® JUDICATURE ACT, 1 873. I 25 Stipulations not of the essence of contracted Injunctions and re- Damages by- collisions at Infants, in conformity with the provisions of the Acts for the reUef of trustees. (7.) Stipulations in contracts, as to time or other- wise, which would not before the passing of this Act have been deemed to be or to ha ve become of the essence of such con- tracts in a Court of Equity, shall receive in all Courts the same construction and effect as they would have heretofore received in equity. (8.) A mandamus or an injimction may be granted or a receiver appointed by an interlocutory Order of the Court in all cases in which it shall appear to the Court to be just or convenient that such Order should be made ; and any such Order may be made either unconditionally or upon such terms and conditions as the Court shall think just ; and if an injunction is asked, either before, or at, or after the hearing of any cause or matter, to prevent any threat- ened or apprehended waste or trespass, such injunction may be granted, if the Court shall think fit, whether the person againstwhom 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 eitlier of the parties are legal or equitable. (9.) In any cause or proceeding for damages arising out of a collision between two ships, if both ships shall be found to have been in fault the rules hitherto in force in the Court of Admiralty, so far as they have been at variance with the rules in force in the Courts of Common Law, shall prevail. (10.) In questions relating to the custody and Digitized by Microsoft® f ART III. SITTINGS & DISTRIBUTION OF BUSINESS. 23 education of infants the Rules of Equity ^^^•^^■^'^ shall prevail. ~ ~~ (11.) Generally in all matters not herein-before °^«» °f * ' i- 1 1 ^' J • 1 • 1 ,1 - conflict not particularly mentioned, m which there is omunarated any conflict or variance between the Rules of Equity and the Rules of the Common Law with reference to the same nwtter, the Rules of Equity shall prevail. PART III. Sittings and Distribution of Business, 26. The Division of the legal year into terms Aijoution of shall be abolished so far as relates to the adminis- *^'™^- tration 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 transaction of any part of the business of such Courts respectively, or of such Judges or Com- missioners, or for the discharge of any duty which by any Act of Parliament, or otherwise, is required to be discharged during or after term. '27. Her Majesty in Council may from time to Vaoatiom. tirhe, upon any report or recommendation of the Digitized by Microsoft® 24 Judicature act, 1873-. 827,2 8,29 jmjggg ^y whose advice Her Majesty is herein- after authorised to make rules before the commence- ment of this Act, and after the commencement of this Act upon any report or recommendation of the Council of Judges of the Supreme Court herein- after mentioned, with the consent of the Lord Chancellor, make, revoke, or modify, orders regu- lating the vacations to be observed by the High Court of Justice and the High Court of Appeal, and in the offices of the said Courts respectively ; and any Order in Council made pursuant to this section shall, so long as it continues in force, be of the same effect as if it were contained in this Act ; and Rules of Court may be made for carrying the same into effect in the same manner as if such Order in Council were part of this Act. In the meantime, and subject thereto, the said vacations shall be fixed in the same manner, and by the same authority, as if this Act had not passed. This section shall come into operation immediately upon the passing of this Act. tImUmi™ ^^' Provision shall be made by Rules of Court for the hearing, in London or Middlesex, during vacation by Judges of the High Court of Justice and the Court of Appeal respectively, of all such applications as may require to be immediately or promptly heard. Jurisdiction 29. Her Majesty, by commission of assize or by High cfTrt" ^°y other commission, either general or special, ou circuit, may .assign to 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 exercised by the said High Court ; and any commission so granted by Her Majesty shall be of the same validity as if it were enacted Digitized by Microsoft® PATTIII. SITTINGS & DISTRIBUTION OF BUSINESS. 25 in the body of tliis<^e^-^d any Commissioner or §29,30,31 Commissioners appointed in pursuance of~ tliis ■ section shall, when engaged in the exercise of any jurisdiction assigned to him or them in pursuance of this Act, be deemed to constitute a Court of the said High Court of Justice ; and, subject to an" restrictions or conditions imposed by Rules Oi Court and to the power of transfer, any party to any cause or matter involving the trial of a question or issue of fact, or partly of fact and partly of law, may, with the leave of the Judge or Judges to whom or to whose division the cause or matter is assigned, require the question or issue to be tried and determined by a Commissioner or Commis- sioners as aforesaid, or at sittings to be held in Middlesex or London as herein-after 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. 30. Subject to Rules of Court, sittings for the p**™s= f""" . -J . J J '. "= . . tnal by jury trial by jury of causes and questions or issues 01 in London fact shall be held in Middlesex and London, and f^^ *"'^'"^ such sittings shall, so far as is reasonably practic- able, 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 Lon- don, 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. 3 1. For the more convenient despatch of business ™™™ "* in the said High Court of Justice (but not so as to court 'of prevent any Judge from sitting whenever required ■'™''°*' in any Divisional Court, or for any Judge of a different Division from his own,) there shall be in the said High Court five Divisions consisting of such number of Judges respectively as herein-after Digitized by Microsoft® 26 JUDICATURE ACT, 1873. * ^' mentioned. . Such five Divisions shall respectively include, immediately on the commencement of this Act, the several Judges foUomng; (that is to say,) (i.) One Division shall consist of the following Judges ; (that is to say,) The Lord Chancellor, who shall be President thereof, the Master of the Rolls, and the Vice- Chancellors of the Court of Chancery, or such of them as shall not be appointed ordinary Judges of the Court of Appeal : (2.) One other Division shall consist of the following Judges; (that is to say,) The Lord Chief Justice of England, who shail be President thereof, and such of the other Judges of the Court of Queen's Bench as shall not be appointed ordinary Judges of the Court of Appeal : (3.) One other Division shall consist of the following Judges; (that is to say,) The Lord Chief Justice of the Common Pleas, who shall be President thereof, and such of the other Judges of the Court of Comm.on Pleas as shall not be appointed ordinary Judges of the Court of Appeal : (4.) One other Division shall consist of the following Judges ; (that is to say,) The Lord Chief Baron of the Exchequer, who shall be President thereof, and such of the other Barons of the Court of Exchequer as shall not be appointed ordinary Judges of the Court of Appeal : (5.) One other Division shall consist of two Judges who, immediately on the com- mencement of thi5 Act, shall be the existing Judge of the Court of Probate and of the Court for Divorce and Matri- monial Causes and the existing Judge of the High Court of Admiralty, unless either of them is appointed an ordinary Judge to the Court of Appeal. The existing Judge of the Court of Probate Digitized by Microsoft® lART III. SITTINGS & DISTRIBUTION OF BUSINESS. 2f shall (unless so appointed) be the President ^ ^'' ^^ of the said Division, and subject thereto the Senior Judge of the said Division, according to the order of Precedence under this Act, shall be President. The said five Divisions shall be called respec- tively the Chancery Division, the Queen's Bench Division, the Common Pleas Division, the Exchequer Division, and the Probate, Divorce, and Admiralty Division. Any deficiency of the number of five Judges for constituting, in manner aforesaid, immediately on the commencement of this Act, any one or more of the Queen's Bench, Common Plfcas, and Ex- chequer Divisions, may be supplied by the appoint- ment, under Her Majesty's Royal Sign Manual. either before or after the time fixed for the com- mencement 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 ap- pointed as aforesaid to the Court of Appeal, to be a Judge of any Division in which such deficiency would otherwise exist. And any deficiency of the number of three Vice-Chancellors or of the two Judges of the Probate and Admiralty Divisions at the time of the commencement of this Act may be supplied by the appointment of a new Judge in his place in the same manner as if a vacancy in such office had occurred after the commencement of this Act. Any Judge of any of the said Divisions may be transferred by Her Majesty, under Her Royal 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. 52. Her Majesty in Council may from time to ^^'^f*.. time, upon any report or recommendation of the sion« by ' Digitized by Microsoft® zS jUBTcAfuSfi act; 1873." § 32, 33 Orauf la GoiincU. llul«3 of Court to provide for distribution of business. Council of Judges of the Supreme Court herein- after 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 recommendation, 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 following Judges, namely, the Chief Justice of England, the Master of the Rolls, the Chief Justice of the Common Pleas, and the Chief Baron of the Exchequer, which may be reduced, and of the salaries, pensions, and patronage attached to such offices, from the offices of the other Judges of the -fiigh Court of Justice, notwithstanding anything in this Act relating to the continuance of such offices, salaries, pension^, and patronage ; but no such Order of Her Majesty in Council shall come into operation until the same shall have been laid before each House of Parliament for thirty days on which that House shall have sat, nor if, within such period of thirty days, an address is presented to Her Majesty by either House of Parliament, praying that the same may not come into operation. Any such Order, in respect whereof no such address shall have been presented to Her Majesty, shall, from and after the expiration of such period of thirty days, be of the same force and effect as if it had been herein expressly enacted : Provided always, that the total number of the Judges of the Supreme Court shall not be reduced or increased by any such Order. 33. All causes and matters which may be com- menced in, or which shall be transferred by this Act to, the High Court of Justice, shall be dis- tributed among the several Divisions and Judges of the said High Court, in such manner as may from time to time be determined by any Rules of Court^ Digitized by Microsoft® PART III. SITTINGS & DISTRIBUTION OP BUSINESS. 29 or Orders of Transfer, to be made under the § 33, 34 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 herein-after 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. •54. There shall be assigned (subject as aforesaid) Assignment 1 ^1 T^- ■ • /- 1 -J ^ i 4 oJ certain to the Chancery Division of the said Court : Huamess to (i.) All causes and matters pending in the Court S^g^JJ'of of Chancery at the commencement of High court, this Act: ^^™'*° (2.) All causes and matters to be commenced, after the commencement of this Act, under any Act of Parliament by whicl*' ■exclusive jurisdiction, in respect to sucll causes or matters, has b«en given to the| Court of Chancery, or to any Judges or. Judge thereof respectirely, except Appeals* from County Courts : ' (3.) All causes and matters for any of the following purposes : The administration of the estates of '' deceased persons ; | The dissolution of partnerships ca- the taking of partnership or other accounts;! The redemption or foreclosure of mort- ; gages j ' [The raising of portions, or other charges on land ; The sale and distribution of the proceeds . V which might before the passing of this Act Cour™'™ have been brought to any Coiurt or Judge whose jurisdiction is by this Act transferred to &e High Court of Justice, may be heard and determined by Divisional Courts of the said High Court of Justice, consisting respectively of such of the Judges thereof as may from time to time be assigned for that purpose, pursuant to Rules of Coiut, or (subject to Rules of Court) as may be so assigned according to arrangements made for the purpose by the Judges Digitized by Microsoft® PATT III. SITTINGS & DISTRIBUTION OF BUSINESS. 37 of the said High Court. The determination of ^^'^' such Appeals respectively by such Divisional Courts L , shall be final unless special leave to appeal from the same to the Court of Appeal shall be given by the Divisional Cour' by which any such appeal from an inferior Court shall have been heard. 46. Subject to any Rules of Court, any Judge of Cases and ..1 -J TT- i_ /-I . •..• • .^1 • i- -1 points may the said High Court, sittmg m the exercise of its be reserved jurisdiction elsewhere than in a Divisional Court, JeJ^^'^e may reserve any case, or any point in a case, for argued the consideration of a Divisional Court, or may ^^ '*'"' direct any case, or point in a case, to be argued comts. before a Divisional Court; and any Divisional 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. 47. The jitrisdiction and authorities in relation Provision ■ for "Crown to questions of law arising m cnmmal trials which cases re- are now vested in the Justices of either Bench and ^^"'"^■ the Barons of the Exchequer by 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 fiirther amendment 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 firom any judgment of the said High Court in any criminal cause or matter, save for some error of law apparent upon the record, as to which no question shall have been reserved for fhe consideration of the said Judges under the said Act of the eleventh and twelfth years of Her Majesty's reign. 48. Every motion for a new trial of any cause or Motions toi Digitized by Microsoft® 38 jOD'icATUfefi Act, 1873.' 50,' 51' matter on which a verdict has been found by a . -jury, or by a Judge without a jury, and every new trials to motion in arrest of judgment, or to enter judgment DiristoSii'' ^°^ obstante veredicto, or to enter a verdict foi* CouriB. plaintiff or defendant, or to enter a nonsuit, or to reduce damages, shall be heard before a Divisional Court ; and no appeal shall lie from any judgment founded upon and applying any verdict unless a motion has been made or other proceeding taken before a Divisional Court to set aside or reverse such verdict, or the judgment, if any, founded thereon, in which case an appeal shall lie to the Court of Appeal from the decision of the Divisional Court upon such motion or other proceeding, ^jjt orders ^g. No Order made by the High Court of Justice subject to or any Judge thereof, by the consent of parties, or Appe»i. g^g (-Q costs only, which by law are left to the discretion of the Court, shall be subject to any appeal, except by leave of the Court or Judge making such order. As to dis- 50. Every order made by a Judge of the said order8°made High Court in Chambers, except orders made in in Chambers the exercise of such discretion as aforesaid, may be set aside or discharged upon notice by any Divi- sional 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. Provision for jj. Upon the request of the Lord Chancellor, it vacancy in shall be lawful for any Judge of the Court of a'jutee!' "* Appeal, who may consent so to do, to sit and act as a Judge of the said High Court or to perform any other official or ministerial acts for or on behalf of any Judge absent from illness or any other cause, or in the place of any Judge whose office . has become vacant, or as an additional Judge of any Digitized by Microsoft® PART Iir. SITTINGS & DISTRIBUTION OF BUSINESS. 39 Division ; and while so sitting and acting any such 53^'^' Judge of the Court of Appeal shall have all the ^5 power and authority of a Judge of the said High " Court. 52. In any cause or matter pending before the Power of a Court of Appeal, any direction incidental thereto, ta'^ourtoP not involving the decision of the appeal, may be Appeal. 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 pending an appeal as he may think fit ; but every such order made by a single Judge may be dis- charged or varied by the Court of Appeal or a Divisional Court thereof 53. Every appeal to the Court of Appeal shall be comw' heard or determined either by the whole Court or Court ot by a Divisional Court consisting of any number, ^^f^ not less than three, of the Judges thereof Any number of such Divisional Courts 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 think fit so to direct. 54. No Judge of the said Court of Appeal shall ^^™ °''' sit as a Judge on the hearing of an appeal from any appeal from judgment or order made by himself or made by any judg,^^. Divisional Court of the High Coturt of which he was himself a member. 55. All such arrangements as may be necessary j^™«^j^ or proper for the transaction of the business from busineBB of time to time pending before the Court of Appeal, ^^^aifand and for constituting and holding Divisional Courts toi hearing thereof, shall be made by and under the direction tiffiemd of the President and the other ex officio andfr°™^«;« ordinary Judges of the said Court of Appeal ; and Committee if Her Majesty shall be pleased by Order in Council "^^^l^'^"^ to direct that the hearing of such appeals and petitions to Her Majesty in Council as herei.n-before mentioned shall be referred to the said Court of Digitized by Microsoft® 40 JUDICATURE ACT, 1873. ^ ^^' ^ Appeal, not less than one Divisional Court of the " said Court of Appeal shall sit throughout the year (except during vacations) for the hearing of such of the appeals and petitions so referred as may from time to time be depending and ready for hearing, which Divisional Court shall be composed (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 East Indies or in any of Her Majesty's dominions beyond the seas, shall have been appointed by Her Majesty, under the Acts relating to the Judicial Committee of the Privy Council, to attend the sittings of the said Judicial Committee, may attend the sittings of any such Divisional Court of the Court of Appeal ; and with respect to the place of sitting of any such last-mentioned Divisional Court, and any attendance or service therein, or in aid of the proceedings thereof, which may be required from the Registrar or any other officer of Her Majesty^s Privy Council, all such arrangements as may be necessary or proper shall be made by the Lord Chancellor, as President of the Court of Appeal, with the con- currence of the President for the time being of Her Majesty's Privy Council ; and the President of Her Majesty's Privy Council shall from time to time give such directions to the Registrar and other officers of the said Privy Council as may be necessary or proper for the purpose of carrying such last-mentioned arrangements into effect PART IV. Trial and Procedure. References 56. Subject to any Rules of Court and to such Md asses- ^.jgjjj. ^^ j^g^y ^^^ g^jgj jQ Yyz^fe. particular cases submitted to the verdict of a jury, any question Digitized by Microsoft® PART IV. TRIAL AND PROCEDURE. 41 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 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 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. 57. In any cause or matter (other than a criminal JS.™' trials proceeding by the Crown) before the said High before Court in which all parties interested who are under ^*'^'^'^- no disability consent thereto, and also without such consent in any such cause or matter requiring any prolonged examination of documents or accounts, or any scientific or local investigation which carmot, 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 herein-after 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 proceed in the same manner as an official Referee. All such trials before Referees shall be conducted in such manner as may be prescribed by Rules of Court, and subject thereto in such manner as the Court or Judge order- ing the same shall direct. Digitized by Microsoft® 42 JUDICATURE ACT, 1 873. 158,59,60 ^g jjj ^jj j^ggg Qf ^jjy reference to or trial by Referees under this Act the Referees shall be B«tereesand deemed to be officers of the Court, and shall have tSflnd- ^^'■■^ authority for the purpose of such reference or tags. trial as shall be. prescribed by Rules of Court or (subject to such Rules) by the Court or Judge ordering such reference or trial ; and the report of any Referee upon any question of fact on any such trial shall (unless set aside by the Court) be ''equivalent to the verdict of a jury. courtwTth 59- With respect to all such proceedings before respect to Referees and their Reports, the Court or such Judge proMediDgs ^g aforesaid shall have, in addition to any other Keferees. powers, the same or the like powers as are given to any Court whose jurisdiction is hereby transferred to the said High Court with respect to references to arbitration and proceedings before arbitrators and their awards respectively, by the Common Law Procedure Act, 1854. Her Majesty go And whereas it is expedient to facilitate the may eat i- . . 1 ■ . Wish District prosecution m country districts of such proceedings thSountry" ^^ "^^V ^^ more speedily, cheaply, S.nd conveniently lor the carried on therein, it shall be lawful for Her CoS"" Majesty, by Order in Council, from time to time to direct that there shall be District Registrars in such places as shall be in such order mentioned for districts to be thereby 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 herein-after mentioned ; and Her Majesty may thereby appoint that any Registrar of any County Court, or any Registrar or Prothonotary or District Prothonotary of any local Court whose jurisdiction is hereby transferred to the said High Court of Justice, or from which an appeal is hereby given to the said Court of Appeal, or any person who, having been a District Registrar of the Court of Probate, or of the Admiralty Court, shall under this Act become and be a District Registrar of the said High Court of Justice, or who shall hereafter Digitized by Microsoft® PART IV. TRIAL AND PROCEDURE. 43 be appointed such District Registrar, shall and ea^fe.^^ 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 herein-after mentioned. This section shall come into operation immediately upon the passing of this Act. 6 1. In every such District Registry such seal Seais o« shall be ■ used as the Lord Chancellor shall from R^gi'triesJ time to time, either before or after the time fixed for the commencement of this Act, direct, which seal shall be impressed on every writ and other 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 nuTriS,"' to administer oaths and pertorm such other duties Eegistrars. in respect of any proceedings pending in the said ' High Court of Justice or in the said Court of Appeal as may be assigned to them from time to time by Rules of Court, or by any special order of the Court. Feest b 63. The Lord Chancellor, with the sanction of taken by the Treasury, may, either before or after the com- ^^S'^^^, mencement of this Act, fix, and may afterwards, with the like sanction, from time to time alter, a Table of Fees to be taken by such District Registrars in respect of all business to be done under this Act ; and such fees shall be received and collected by stamps, denoting in each case the amount of the fee payable. The provisions of the " Courts of Justice (Salaries and Funds) Act, 1869," as to fees to be taken by stamps, shall apply to the fees to be received and collected by stamps under this Act. 64. Subject to the Rules of Court in force for S'taSf the time being, writs of summons for the com- m Distriot Digitized by Microsoft® 44 JUDICATURE ACT, 1 873. ^ ^' ^^ mencement of actions in the High Court of Justice shall be issued by the District Registrars when thereunto required; and unless any order to the contrary shall be made by the High Court of Justice, or by any Judge thereof, all such further proceedings, including proceedings for the arrest or detention of a ship, her tackle, apparel, 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 judgment or to obtain an order for an account by reason ot the non-appearance of the defendant) down to and including final judgment, or an order for an account, may be taken before the District Registrar, and recorded in the District Registry, in such manner as may be prescribed by Rules of Court ; and all such other proceedings in any such action as may be prescribed by Rules of Court shall be taken and if necessary may be recorded in the same District Registry. Jrart to" ^5- Any party to an action in which a writ of «move pro- summons shall have been issued from any such romDSri uP°^ the hearing of an Appeal, a question ito refer to arise as to the ruling or direction of the Judge to a notes, &c. jyj.y Qj. assessors, the Court shall have regard to verified notes oi other evidence, and to such other ("Want of materials as the Court may deem expedient, appeaifrom c6. No interlocutory order or rule from which fery order there has been no appeal shall operate so as to bar feowire'S''* or prejudice the Court of Appeal from giving such '<;ourt of decision upon the appeal as may seem just ppea . ^^^ j^^ appeal from any interlocutory order shall, fime*iE except by special leave of the Court of Appeal, be ppeais. brought after the expiration of twenty-one days, and no other appeal shall, except by such leave, be brought after the expiration of one year. The said respective periods shall be calculated from the time at which the judgment or order is signed, entered, or otherwise perfected, or, in the case of the refusal of an application, from the date of such refusal, or from such time as may be prescribed by Rules of Court Such deposit or other security for the costs to be occasioned by any appeal shall 1^ made or gives as may be prescribed by Rules of Court, or directed under special circumstances by the_ Court' of Appeal. '"'! |ppe,»inot 58. Aji_ appeal shall not op trate ig^^y'of Digitized by Microsoft® execution or of proceed&igs undier tlie demian ^^' ^ appealed from, except so fax as th« Ceart ajg^eokd ^7rt^»« from, or any Judge thereof orth« Coa?t of Appe«d, cti^k^ may so order j and no intermediite act or proceedfaig ■' ' shall be invalidated, except gfi fej 68 fes. Qmt af>pe«led &«l^@«^ 4ksstt Digitized by Microsoft® 84 STATUTES REFERRED TO. STATUTES REFERRED TO IN THE JUDICATURE ACT, 1873. CROWN CASES RESERVED ACT, II and 12 Vict,, chap, y8, I X^" This Statute is referred to in sec. 100, page 64.] An Act for the further Amendment of the Adminisfcrafclon of thff Criminal Law. [31st August, 1848. j Whereas it is expedient to proride a better mode than titiat now In use of deciding any difficult question of law wliioh mar arise i* criminal trials in any Court of Oyer and Terminer f^ Ga(rf Delivery, a&d to make further amencbnenta in the administration of the Criminal Law : Be It enacted by the Queen's most Excellent Majesty by and vi£h the adflce and consent of the Lords SpiritoEtl and l^impOTS^ and Commons, in this present Parlisunent assembled imd by tha authority of the same, 1. That when any person shall have been convicted of :t£&y treafon, C 1> 2 felony, or misdemeanor before any Court oj Over and S^etmuter ^ or Gaol Delivery, or Court of Quarter SeaMonB, the JudUe or Qeifi'- missioneT, or Justices of the Peace b^oce whom the case Aall iJuestJonB 01 ^^ye \i^^sa_ tried may, in his or their discretion, reserve any question law may be ^f ^^ which shall have arisen on the trial Iffr tAie ocoiaiaentioB of reflerveaa4: ^j^^ justices of either Bench and Barona of tilie Bxchaquer ; and ^h^^^^^iTfnr tli6i*e"P0ii shall have authority to respite exemitloa of the judgment nSridp^ on such conviction, or postpone Use judgment iflOtEl siicsh qtiM^oa ^^at Bhall have been considered and decided, aa he or they may think fit ^ ^fr^ and ia either case the Conit in its discretion shall commit th^ person ^ ^^' convicted to prison, or sliall ta3ro a rocognlaance of boil, ivim one or two aafficdent Sureuea, and in such aum as the Conrt ihAll ^lik §t, oonditioned to appear at suoh time or times as UiB Conii j^haH direct, aind to receive jndgmei^ or to render bimaeU fax execution, as tiie case may be. 2. And be it enacted, that the Judge or CommisaloxieT «r Otnni Qoestfons ^ Quarter Besslona shall thereupon state, In a eaae edgpod i& vestfrved to the nuumear now usual, the question or qaestlona of l«" or fire of them at the least, of whom the Lord Chief Justice of the meirfes to De< Court of Queen's Bench, the Lord Chief Justice of the Court of Com- delivered In paon Fleas, and the Lord Chief Baron of the Court of Exchequer, or open Court... jone of such, chiefs at least, shall be part, being met in the Exchequer {Chamber or other convenient place ; and the judgment or judg* bnents of tjie said Justices and Barons shall be delivered in open iCourt, after hearing Counsel or the parties, in case the prosecutor op [the person convicted shall ^ink it tit that the case shall be argued, [in like manner as the judgments of the Superior Courts o£ fcommon Law at J^estmmater or Jhtbtin, as the case may be, are^ 'bow delivered. • Case or ccp- 4. And be it enacted, that the said Justices and Barons, when a case tiflcatom&yl ^As been reserved for their opinion, shall have power, if they think be sent bacU pBt, to cause the case or certificate to be sent back for amendment, foy amend- a-nd thereupon the same shall be amended accordingly, and judgment ment. shall be delivered after It shall have been amended. When Jodg- 5. And be it enacted, that whenever any vmt of eiror shall be mentis , brought upon any judgment on any indictment, information, present- reversed on ^en^ or inquisition, in any criminal case, and the Court of Error writ of crroi*, (fihfdl reverse the judgment, it shall be competent for such Court of record may iErr 6. And be It enacted, that every person who shall forge or alter, or Penalty £oc. •hall offer, titter, die^ose of, or put off, knowing the sameto be forged forgery, Digitized by Microsoft® ^S6 STATtnte R£F£RREt) TO. r alteivd, any oeriUicaiie of fr cop7 certified br a Chief JWJoe, (9 ftny . certificate of w copy certified by a Cleik ctf Assize or his Deputy^ or , the Glei^ ef tbe l^eace or his Bqput^, as ^ne case may bOr v&th istent ' to eanae any persom to be discharged from pustody, or otherwise , torerveDi the doe eovrae of jtutfcice, shall be goilty of felony, and I being eoorietod tliereof ghall be liable, at tJoe discreUon of i^e f Court, to be trastsported beyond the seaa for saxj tdim not exceedtngi tea year^ or be impdBoned for uiy term not exceedm;{ thzeel ^ yeazEL irtm or vMioat hard labour suod solitary conBnemerat, batdi! ^n not to or atttar, at the discrertijan of tha Court beforo vhich he slukll be «xtend te tjj^ jecottand^ 9 ,4jb1 be It enacted, that this Act dhan not esttend to Smaand. Act may be & And be it enacted, that this Act may be amended or repealed ammdiiri^jjw. t^ afiy Act to be passed dnring this present Session of Parliament. SCHEDULE. ^ 'Whereas tA i3ie SesstoD of the Peace for Uie Connty of held en before and «theni'&etr tellowB. [or at the Sessltm of Oyer and Texminer and ,GaaA Bellrery be^ ita the County of on b^ien, taaoag otiieia, Sk A. B. Knight, one of the J«stice8 ol the Conart of and k^r* nauM tik« ottomniy Commtestcmers. Josttces of Oyer and Toiininer and Gaol DellTffly, j A B., late of labourer,, having been found guilty oi felony, and jodgment thereupon glreB,^ thai (state the sub^ancej, the Court before whom he was tried re- serroid a' certain question of law for the consideration of tbe Justiceo of either Bench and tbe Barons of the Elzcheqoer, and exe- cutioB was theo'eupon reacted in the meantime : Xhte is to certify. Tliat titte said Justices and Barons haying met blithe Exchequer Chamber at Westminster [or Dublin, (M ih« cane may' be,] on the day of it was con- ridered by Hie said Justices and BafOi» there that tiie judgment aforesaid diould be anzuiUod, and an entry made on the record, that the said A B. on^t not, in the judgment of the said Justices and Barons, to hare been oonricted of the felony aforesaid ; and you are thffl«^i»e h^eby leq^uired fortiiwiUi to disuhacguthe said A B. fruui your custody. To 13ie Gaoler of and the Sheriff of '^ uid all others whom H may concem. (Signed) B. F. C^erk of the Peace for the County of lor derk of the Assize for - as the oaK mc^ b6]f. Digitized by Microsoft® Common law procedure act, 1852. 87 COMMON LAW PROCEDURE ACT, 1852, IS and 16 Via., chap. 76. Its' Only the sections of this Act referred to in the side not© to RiUes of Procedure, numbered 7, page 66, are here given.] An Act to amend the Process, Practice, and mode of pleading in the Superior Courts of Common Law at Westminater, and in the § 25 27 Superior Courts of the Counties Palatine of Lanoanter and Durham. q^a * [30th June, 1852.1 25. In all cases where the defendant resides within 'the jurisdic- Special tion of the Court, and the claim is for a debt or liquidated de- endorse- mand in money, with or without interest, arising upon a contract, ment of tha express or implied, as, for instance, on a Bill of Exchange, pro- particulars missory note, or cheque, or other simple contract debt, or on a bond of debts or or contract under seal for payment of a liquidated amount of liqu-'d&ted money, or on a statute where the sum sought to be recovered is' a fixed demauds sum of money, or In the nature of a debt, or on a guarantee, may be whether undffl* seal or not, where the claim a^inst the principal is mude on thft in t^pect of such debt or liquidated demand, oill, cheque, or note, writ, the plaintifiE shall be at liberty to make upon the writ of summons and copy Uiereof a special endorsement of the particulars of his claim, m the form contained in the Schedule (A.) to this act annexed, Special marked No. 4., or to the like effect ; and when a writ of summons endorse- has been endorsed in the ^cial form hereinbefore mentioned, the met t to endorsement shall be considered as particulars of demand, and no stand for further or other particulars of demand need be delivered, unless i^rticulara _ ordered by'the court or a jndge. *" demand. * * * • 27. In case of non-appeurance by the defendant, where the writ of Final judg- snmmons is endorsed in the special fonn hereinbefore provided, it ™j^ upon shall and maybe lawful for the plaintiff ,v on tiling an affidavit of ^"^. .. personal service of the writ of summons, or a judge's order for leave ^j*' zi^ 3- to proceed under the provisions of this act, and a copy of the writ n^f!^* «» of summons, at once to sign tinal judgment in the form contained aS)earanco in the Schedule (A.) to this act annexed, marked No. o.,(ou which ^^ judgment no proceeding in error shall He), for any sum not exceed- ing the sum endorsed on the writ, together with interest at the rate specitied, if any, to the date of the judgement, and a sum for costs, (to be fixed by the Masters of the said Superior Courts, or any three of them, subject to the approval of the judge's thereof^ or any eight of them, of whom the Lord Chief Justices and the Lord Chief Baron shall be three), unless the plaintiff claim more than such fixed sum, in which case the costs shall be taxed in the ordinary way ; and the plaintiff may upon such judgment issue execxition at the expiration of eight days from the last day for appearance and not before : provided always, that it shall be la^vful for me court or a judge, either before or after final judgment^ to let in the defendant to defend upon an application, supported by satisfactory ofGdavits accounting for the non-appearance, and disclosing a defence upon the merits. * « » • 235. In citing this act in any instniment, document, or proceed- S^ort titio ing, it shall be sufficient to use the expression ** The Common Law of Act. Procedure Act, 1862." Digitized by Microsoft® 88 STATUTES REFERRED TP. Schedule (A.) referrprt to in the foregoing Act. « ^- * * No. i. Special Indoraemen*. [After the mdortement required by the bth section of this act^ thig special indorsement may be innerted.] llie following are the particulars of plaintiff's claim : £ a. d. 1849. -June 20. Half-year's rent to this day of house and premises in street, 'Westminster . 25 10 Sept. 12. Ten sacks of flom- at 40s 20 Dec. 1. Money received by defendant 17 ' 62 10 P;iirards be diacl^rged or varied as ju^c^ way require, Digitized by Microsoft® CdMMON LAW PROCEDURE ACT, 1854. 91 12. If in any ca^e of arbitration tlie document authorising the § IS, 13, I«feTenc« provide that the refereaoe shall be to a single Arbitratoi', 14, 15 and all the iMurties do not, after differences have arisen, concur in the iqipointmant of an Arbitrator; or if any appointed Arbitrator refusb to act, or become incapable of acting, or die, and the terms "" (fulure t «f suidi doeument do not show that it was Intended that such Pfu't^i^^orai VRcaaoy should not be (applied, and the pa;rties do not concnr in bltrators, appointifig a new one ; or If. where the parties or two Arbitrators J""*^ "lay we at Uberty to appoint an Umpire or third Arbitrator, such partiet ^EL'iL "Lm or Afbitrators do not appoint to ttmpire or thiid Arbitrator ; or if !"?1J *™" any appointed Umptoe or tUf d Arbitrator refuse to act, er become umoia. Ineapabl* of actfaig, er die, ana the terms ef the doeument authoriE- ^ kig the reference do not s^ow that it was i&tftaded that such a vacancy should not be supplied, and the p&Hies or Arbitrators respectively do n«t appoint a new one ; then in every such instance any party may serve tne remaining parties or the Arbitrators, as tho case may be, with a written notice to appoint an Arbitrator, Umpire, or third Arbitrator respectively ; and if within seven (dear days after such notice shall have been served no Arbitrator, Umpire, or third Arbitrator be wppoiftted, it sbaU. be lawful for any Judge or any of the Superior Oourbs of law or eqi^ty at Westminsterj upon summons to be taken out by the party having served such notice aa aforesaid, to afipoint an Arbitrator, Umpire, or third Arbitrator, as the C9JM may be, and such Arbitrator, Umpire, and third Arbitratoi! respeotively shall have the like power to act in the reference, anil malce an award, aa if he had been ^pointed by consent of all parties. 13. When the reference is or is intended to be to two Arbitrators, When refer one appointed by eadh party, it shall he lawful .for either party, in ence is to the ease of the death, refurral to act, or incapacity of any abritrator twwarbitra appointed by him, to substitute a new Arliitrator, unless the docu- tors and 01 meat authorizing the reference show that it was intended that the party fails 1 vacancy should not be supplied ; and if on such a reference one appoint, party bul to appoint an Arbitrator, either originally or by way of other part; substitution as aforesaid, for seven elear days after the other party '"J^.^ffi"" sball have appointed an Arbitjrator, and shall have served the party *^v}r^° so failing to appoint with notice in writing to moke the appoint- '"^ woue. ment, the party who hns ap{iointed an Arbitrator may appoint such Arbi^tor to liot as solo Arbitrator in the reference, and an award made by liim shall be iiinding on both parties as if the appoints ment had been by consent ; provided, however,, that the Court or a Judge may revoke such appointment, on such tei-ms as shall seem just. 14. When the reference is to two Arbitrators, and the terms of rji„g arbitr the document anthbilsing it do not ^ow that it was intended that ^g^ ,q^, ^ there diould not be an Umpire, or provide otherwise for the appoint- point um- Bient ef an Umpire, the two Arbitrators may appoint an Umpire at pjre. any time within the peilod during which they have power to make an award, unless they be colled upon by notice as aforesaid to make the aimomtment sooner. 16. The Arbitrator acting under any such document or compul- Award to 1 Bory order of reference aa aforesaid, «r under any order referring made in the award back, shall make his award under his hand, and (unless three such document or order respeotively shall contain a different limit paonths, u: of time) within three months after he shall have been appointed, and less parties riiaU hav« entered on the reference, or shall have been called upon or court en to act by a notice In writing from any party, but the parties may by large thue, consent in writing enlarge the term for m^Icing the award ; and it shall be lawful for the Superior Court «f which such submission, document, or order is or may be made a rule or order, or for any Jindge thereof, for good cause to be stated in the rule or order for enlarsemeiit, froa time to time to enlarge the term for malcing the awards ; and if no peno.' be gtatsd to the enjftrgemejit in such con- Digitized by Microsoft® STATUTES REFERRED TO, 515,16,X7. 99, 104, 106 Ru'o to de- liver possea- eion of land pursuant io award to be enforced as a jnrlffment in ejectment. Agreement or a u Amis- sion in ■wiitina: may be made rule rif court, un- less a con- trary inten- tion appeaf . sent or order for enlargement, it shall be deemed to Im) an enlargs- ment for one month ; and in any case -n^here an Umpire diaU. have been, appointed it i^U be lawful for him to enter on the reference lin Ueu of the Arbitrators, if the latter shall have allowed tholr 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. 16. When any award made on any such submission, docxunent^ or order of reference as aforesafd directs that possession of any laiids 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 authorizing the reference is or is made a rule or order to order ajiy party to the reference who shall be in possession of any such lands or tenements, or any person in possession of the same claiming under or put in possession by him since the making of the document authorking the reference, to deliver possession 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 m it, and execution may issue, and possession shall be delivered by the Sherfff as on a judgment in ejectment. 17. 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 WestnuTi^er, on,i^e application of any party thereto, unless such agreement or submission contain words purporting thftt the parties intend that it should not be made a Rule of Court ; aod if in assy such agreement or submission it is provided that the same shall or may be made a rule of one in particular of such Superior Courts it may be made a rule of that Court only ; and if when tbere iS' no audi provision a case be stated in the awaa-d 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, befere the publication of the award to the parties, been made a Rede erf Court, such document may be made a rule only of the Court specified in the award and, when in any case the document authorising the re- ference is or has been made a rule or order of any one of such, Superior Courts, no other of such Coxirts shall lukve any juris- diction to entertain any motion respecting the arbitratioil or award. " Interpret^' ^- ^^ *^* construction of this Act the word " Court " shall be Villus of understood to mean any one of the Superior Courts of Common Law termg. ^'^ Westmmeter ; and the word " Judge " shall be inuierstood to mean a Judge or Baron of any of the said Courts ; and the word' " JNIaater " shall be understood to mean a Master of any of the said Courts ; and the word " action" shall be understood to mean any personal action m any of the said Courts. * * * • Oommenoe- 1' 4 Tlie provisions of this Act sh'll come into operation on the mentof Act. twenty-fourth day of October in the yeai- of our Lord one thousand ^ght hundred iwid tifty-four. * » * ». Sh'^rfe laf ifi of ^^^ In citing this Act in any instrument, document, or proceeding c KIT, Hue « it ghan be sufficient to use the expression "The Common Law Proeedur© Act, 1S64." « - » tt « Act. Digitized by Microsoft® TilE COUNl-Y COURTS ACT, 1867, 93 THE COUNTY COURTS ACT, 1867, JO and J I Vict,, chap. 142, [SS" Osly tfae sections incw^rated by aec 67, page 45, are liero giTea.] , An Act to amend the Acts relatiBg to the jurisdlctien of the County Oourts. r20th August, 1867.} * * * * § 5, 7, S & U in U17 action commeuced after the pnsaing of this Act m any , of Her Mat«aty'a Soperior Ooiiuts of record the |daiatiff shall ^^^ Feoorer a sam not exoeedias twen^ poimds If the action is fotmded. ^^^^^ ^^ ^^' on'csnfaraot, op ten pounds u fomided on tort, whether by verdict, ^'^rabie m jttdipnent by default, or on dsoiurer, or otherwise, he shall not be n ^^P^^'t. cortaked to any coats of suit unlesB the Judge eertafy on the record J^^^* iao that tbero was sufiScient' reason for brin^g Huoh action in such (^coulmcL ■Sqperior Court, or unless the Court or a Judge at Chambers shall, ^^ ^ 'hj nde or order, ^low «tn^ costs. ^^^ 'L W^iore in any aotipUcation, or without such application, If he shall sea fit, to mal^e an order for such transfer, and thereupon such suit or pro- to County Courts .„i„»„ „„ „»«„» »«* B„v,« «. ,*-* ~r— - whloh might oeeding shall be carried on in the County Court t« which the same nave com- gjjjji |,g ordered to be transferred, and the parties thereto shall menced lit^ye the same right of appeal that they would have had had the euit or proceeding been commenced in the Coimty Court. therein,. Actions tor 16. It shall be lawful for any person against whom an action for malicious malicious prosecution, illegal arrest, illegal distress, assault, false prosecution, imprisonment, Ubel, slander, seduction, or other action of tort may &c. , brought be brought In a Superior Court to malce an affidavit that the plaintiff in Superior has ne visible means of paying the coats of the defendant should a ■ ^Courts may verdiot b« not found for the plaintiff, and thereupon a Judge of the be remitted Court in >irhloh the action is brought shall have power to make an n* ^^"k*^ order that unless the plaint!^ shall, within a time to be therein Court by mentioned, give full aeourity for the defendantfl costs to the satis- vudge, faction of one of the Masters of the said Court, or satisfy the Judge that he has a cause of action lit to be prosecuted in the Superior Court, all proceodinge in the action shall be stayed, or in the event lai the plabitiff being unable or unwilling to give sach sccuriW, or Akiling to satisfy the Judge ivs af oresidd, that the cause be remitted ,2or tml before ft Oounty Court to be therein named ; and thereupon t&e plaintiff shall lodge the original writ and the order with the Registrar of such County Court, who shall appoint a day for the tiearing of the cause, notice whereof shall be sent by post or other- wiae t^ the Kegia^rar to both parties or their Attorneys ; uid the County Court so nuned shall hive all the same powore «ad juiis- diction with respeti to the cause as if both parties had a^pewA, by a memorandum signed by them, thait the said County Oenrt ahevld have power to try the said action and the same \uA been com- menoed by plaint in the said Cennty Court ; and the costs of the parties in respect of the prooeedings subsequent te tiie wder of the Judg« of the Superior Couii shaU b« allowod accordmg t« tb* scale of oesta in use in the County Ooarts, and the oosta of tli* sroceed- inga in the Superior Court! jhall be alkw^ aGCfildllic i* HM Atalft u> Digitized by Microsoft® THE PROMISSORY OATHS ACT, 1868. 95 THE PROMISSORY OATHS ACT, i868, 31 and J 2 Vict., chap. 72. [SSF This statute i» referred to in sec. 9, page 6.] JU Act to amend the l*w relating to Promissory Oatos. Whereas it Is expedient to emend the law «l»4tog to PromlBSory ■oaths : Be it enacted lay the Queens most essoellent Mejeety, by 5 1, 3, S, 4, mud with the advice and ooaseat of the Lord* spWtual anil e, 6 temporal, and Oommona, in M& present Padiament assembled, and ._ ^ fcy the authority of the same, as follfflws : „ ^ ■ 1. This Act may be cited fer aU purposes as "The Pronus80ry Short title. Oaths A£t, 1868." PART I. OATHS TO BE CONTINUED. OMh 6f AUegiance. — Offieitd and JudioiaZ QathS. 2. The oath in this Act refared to as the oa^Ji 8* aUegiauce *»ll Fmw o( tie in the {arm f olloTving ; ttiti is to say, oatli of 'I do swear that I will he faithful and bear true allegiaiice allegiitBce. ' to Bar Hajesliy Ciueen Vioteiia, her heirs and successors, aocptding 'to law; 'So help me God." 3. The oath in this Aet rrferred to as the official eath shall be in Form a! i&iB form fcSlowtn^ ; 13iat ix to say, official oaths ■'I do swear that I wfll well and truly serro her Majesty ■« Queen Tliitorlfl in the ofllee of ' 80 help me (Jod.' 4 dbe oath in this Aet referred teas tht judicial oath shaJl he in FOTm of the fMm foBowiBg i «ia* Is to say, . 3™1«»1 0^™ ■'1 do Bwwiir ibat I Tyffl well and truly serve our Sorereira " Lady ^ueen Victoria iit^hs office of , and I will de ririit !* to i^ tnsnner of pe<^le after the tews a^id usages of tma t<«liB, ■• withoot fear or favour, affection «£ ffl-wflL ' So help o" />»d.' 6. *0» aMU ot aUagianae aiul olBeial eath sbail M tenaarad to remans to «nd tdnn t^ aadi of Via affiecM aamed in tbe Srst pact <4 tbe teketheoath wOiedBle amnexei h««te as soea ae mas be after Ub aom^aaee ti ai deeianM «fflae br the ol&iw, and 1^ tile luamel la tbat heteU med^ened tai and offlelal tebe sadd ^^pairt ^ ^>« "'^ «AieSlde. ^ ^ ^ o**^- e. She OBiUl of lOievlAnoe $nd )udi«ill aaM> i^ be t^ea ^ «^ Parsons to ¥% ™ »»J> of idle^ct oaths ahaffl be tendered and talEef in n^nnei ts vhl^the wMu ,ed JiSicial ceqnlred t» bo tafcm by aaeb offieef plitnMWy to tto j^^daK oath, «*ar' i^ci|Hbtion in the pnvileges of a municipal corporation, a ^edaration that i^b decliuunt will faithfully demean him- self as a member of or participator in the privileges of aucb corporation : ^3. Where beJIore the passing of tMs Act an oath was required to be taken on or as a eonStion ot admission to membership or fellowship or participation in the privileges of any guild, body corporate, society, or oompany, a declwutlon to the Hko effect of such oath ^ail be substituted ; provided that if an]; two or more of tne siemberg of sudti guud, boc^ corporate^, {society, or oompany, irtth the concurrence of the m^orlty o^ /the members ^H^sent and voting at a meeting specially sum^ moned for the purpose, object to iuiy statement contained iai sttf^ decaiwfttion oa the ground of its relating to duties whicbs i^y reason of chftnge of ctrcumstanoes have hecome obsolete^ uey may appeal to one of Her Matjesty's principal Secretaries of State to opiit nefa statement, and the decision of suclr Secretary of State ^all be final : ^ Where in a^y oase not otherwise provided for hy this Act ot . included within the saving clauses thereof an oath is re-l quired to be tsiken by any person on or as a condition of hi9i accepting any QOiployment or office^ a declaration shall b» subaUtuted for au^ oat^ to the like effect in all respects aa such OEDth : €. The i^asing a de(^rati(m in pursuance ot this section instead of oeAh ^ail in all respects have the same effect as the taking the oath for which such declaration is substituted would have had if this Act had not psissed. 13. If any person requh:ed by this Act to make a declaration in- Penalty on stead of on oAth declines or neglects to make such declaration, he not making shall be sut^eot to the same pencQties and disabilities, if any, as he dec^rataon would have been siil^ected to for declining or neglecting to take !?9*"f®? ^ ttie oath for ^^^ the declaration provided by this Act is sub- *■*"* ■^*^*'* stituted. PART III. Saving Ckvuse. 14 Nothing in tlus Act osntained shall affect— Not to affect 1. The Cl^cfbl Subscription Act, ]|.^, or The Parliamentary matters Oatha Adfc, 1^, exodpt 91 rfBmon to the form of oath in hereinstate.d mannar htoeinbef ore menti(ib9^ : 2. The Oath taksn by pliv^ couneulors of the United Kingdom, or by priyy eounci^^^ erf Ireland, with the exception £hafe the fonn itf the oath, of allegiance prSseribed by this Acti shall be substituted for ihe oath of alldgi^ince, supremacyJ and ai)jnrati(»i now requtred to be taken by fprivy councillors ^ 3. The oath of homage token by archbishops and bishops in th»| presence of Her Majesty : 4. The oath of canonicaJ obedience to i^ bishop, or the oath of, due obedience to the archbishop, taken by oudiiros on cense-, fixation, and which oaths are reserved by The Clerical Sub- acif ption Aot, 1S65 : ^ \ 6. Ahy oath taken by peers, baronets, or knights on their creation, with thl0 exception, tM) AVbsre thi^ q»ti^ of allegianco, suf re- Digitized by Microsoft® q8 STATUTES REFERRED TO.' 8. $ 14% 16, 16 tnacy, or abjuration, or any two or one of each oatlis, of say ^ oath substituted for such oathg or any of thextt are or is re- roijuired to be taken by such peers, baroneta, oi knight& Utere- shall bo aubetifcuted for such oaths, or any two or one of tibem, ■ - the oath of allegiance prescribed by this Act : 6- Any oath required to be taken in the army, the marines, f^e militia, the yeomanry, or the volunteerfl : 7. The oath taken by aliens on being uatoraUsed, with thi* ex- ception, that ^e form of the oath of allefliaince prescribed bjn this Act shall be substituted for the form of tihe oath o& aUegianoe required so to be taken by alieni previoadiy to ih» passing of tms Act : The e%hteenth section of The Merchant Shipping Act^ 1854, or any provMon to be substituted therefore, whereby certain persons c )»iT"in g to be owners of BriMth ships ar» Krequired to take the o^h of allegiance, with thie ecxcfl^tton^^ ^hat t^e form of the oaitn of allegiance as prescxft^ wj ihi» Act shall be sabstituted for the form of the oath of ollac^aiuo contained in the said Merchant Shipping Act, 1S54 : ( Q. Any power of silbstitutlng a declaration for an oam, Tested iok the Oommisaioners of Her Majesty's Treaaory by tbe Art on the session of the fifth and sucth yeara of the retga s qarit ot ths Coimu, and itluSk «t a meetlag at in* Privy Counsu In be- , land. Second Past. Sngland. The Loid OhanceUar of Great Britain. The Lord Ohiaf Justiae. The Master of tba Rattl. "Dm CUef Justise a< tba Common Pleaa. The Chief Baron of the ^xAMtaec Tbe Lord Justices of the Gaart ef Appeal in Ohancery. The Vioe-Chancelloia. The Puime Justloes of tba Qaeen's Bonah. The Pniane Juaticaa of the ODimnoB Pleas. The Puisne Barons of the Ezohaquar. The Judge of the AdmiiEdty Court. The Bacorder of London. The Judge of «i« Probate Court. Justices^f the Peace for Countiei and Boroufba. Digitized by Microsoft® lOO STATUTES REFERRED TO. Seotlatid, Tlie Lord Justioa-Gejieral and President of the Court, of Sessfoirta Scotland, the Lord Justice-Clerk of Scotland, the Judges of the Court of Session in Scotland, Sheriffs of Counties, and Justices off the Peace for the Counties and Burglis. ' IreUiTid, The Lord Chancellor of Ireland. The Lord Chief Justice. The Master of the Rolls. The Chief Justice of the Common Pleas. The Chief Baron of the Exchequer. The Lord Justice of the Court of Appeal in Chancery.. Th« Vice-ChanceUor. The Puisne Justices of the Queen's Bench. The Puisne Justices of the Common Pleas, The Puisne Barons of the Exchequer. The Judge of the Probate Court. The Judges of the Landed Estates Court. The Judge of the Admiralty Court. The Judges 5f the Court of Bankruptcy and Insolvency/ The Recorder of Dublin. Digitized by Microsoft® PARLIAMENTARY ELECTIONS ACT, l36Sf IpX PARLIAMENTARY ELECTIONS ACT, 1868; J I and ^2 Vzct.j chap. 12^. [BS" Only the soctions of this Act proTiding a rota referred to in sec 38, page 33^ are here given.] An Act for amending the l&ws relating to Election Petitions, and providing more effectually for the prevention of Corrupt Practices at Parliamentary Elections. [Slat July, 1868.1 Whereas it is expedient to amend the laws relating to Election Petitions, and to provide more effectually for the prevention.oj ^ Corrupt Practices at Parliamentary Elections : Beit enacted, by the Queen's Most Excellent Majesty, by and ^ ^ ^ -with the advice and consent of the Lords spiritual and temporal, § J jjf, ,-and Commons, in this present Parliament assembled, and ^ the ' \ authority of the same, as follows : "■ ~*| I. This Act may bo cited for all purposes as " The Parliamentary Sh«rt title ofl Elections Act, IStiS. " "^ , Act. ■ "^ « * * * ^ ' II. The following enactments shall be made with respect to the Uode o£ 1 trial of Election Petitions under this Act : trial of J. The Trial of every Election Petition shall be conducted before a election Puisne Judge of one of Her Majesty's Superior Courts of p etitio ns. ', , Common Xaw at Weatminster or Dublin, according as the '■^ same shall have been presented to the Court at Westrnvinster or Dublin^ to be selected from a rota to be formed as hereinafter mentioned : % The members of each of the Courts of Queen's Bench, Commoit Pleas, and Exchequer in England and Irelcmd shall respec'^ tively, on or before the third day of MichaelTnaa term in every) J^eax, select, by a majority of votes, one of the Puisne Judgesj of such Court, not being a member of the House of Lords, tO" be placed on the rota for the trial of Section petitions during the ensuing year : 3. If in any case the members of the said Oonrt are equally di- vided in theh* choice of a Puisne Judge to be placed on thoi rota, the Chief Jiistice of such Court (Indnding under thati expression the Chief Baron of the Exchequer) Shalt' have a second or casting vote : 4. Any Judge placed on the rota shall be re-eligible in the sr^cceed' ing or any subsequent year : 5. In the event of the death or the illness of any judgi for the time being on the rot&, or his inability to act for any reason- V able cause, tixe Court to which he belongs shall fill up th» vacancy by plaging on the rota another Puisne Judge (^ tlid sam^fjoart ;^ - - - . -- ^_ Digitized by Microsoft® I OS STATUTES REFERRED Td. S 11» 59 6, The Judges for the time being on the rota shall, according to . ■■ . ■■ their seniority, respectively try the election petitions stand- ing for trial under this Act, unless they otherwise agree among themselves, in which case the trial of each election petition shall be taken in manner provided by such agree- ment : 7. Where it appears to the Judges on the rota, after due considera- tion of the best of petitions under this Act for the time being at issue, that the trial of such election petitions will be in- conveniently delayed unless an additional Judge or Judges be appointed to assist the Judges on the rota, each of the said Courts (tha^ is to say), the Court of Exchequer, the Court of Common Pleas, and the Court of Queen's Bench, in the order named shall, on and according to the requisition of such Judges on the rota, select, in manner hereinbefore provided, one of the Puisne Judges of the Court to try election petitions for the ensuing year ; and any Judge so selected shall, during that year, be deemed to be on the rota for the trial of election petitions : 8. Her Majesty may, in manner heretofore in use, appoint an ad- ditional Puisne Judge to each of the Courts of Queen's Bence, the Common Pleas, and the Exchequer in Brigland : 9. Every election petition shall, except where it raises a question of law for the determination of the Court, as hereinafter men- tioned, be tried by one of the Judges hereinbefore in that behalf mentioned, hereinafter referr^ to as the Judge sitting in open Court without a jury : JO. Notice of the time and place at which an election petition will be tried shall be given, not less than 14 days before the day on which the trial Is held, m the prescribed manner. * * 4i :!< 59. This Act shall be in force until the expiration of three years from the passing of such Act, and to the end of the then next - Session of Parliament. [N.B. Extended by 35 and 36 yict., cha-p- 88 ; and 36 and 37 Vict,, q^ia^. 75. J - ^ ' ~^-^ Digitized by Microsoft® COUR.TS OF JUSTICE ACT, l86g. 103 COURTS OF JUSTICE ACT. 1869,. J2 and J J Vict, chap. gi. l8^ This statute is referred to in sec. 63> page 43.] An Act for Amending the law relating to the Salaries, Expenses, fluid Funds of Courts of Law in England. [i>th Aufl:ust, 1869.] >Miereas it is expedient thi>'^, the expenditure for the Courts of Justice should be (so far as i a. be) defrayed out of moneys to be provided for that purpose by l-<.^liament, or out of the Consolidated Fund: And whereas in the second part of the first and second schedides to this Act there are shown the stock and utish which on the several days mentioned in those schedules belonged to the Courts of Chancery and Bankruptcy^^as^distiuguished from the stock sgfcurities anfl cash which are the property of the suitors therein) : And whereas the charges on such stock and cash are shown in the third and fourth schedule to this Act : And whereas it is expedient that on the charges thereon being transferred to the Coraoli ^.ited Fund or moneys provided by Parliam^t, the said stock and cash should be transferred to the public : Be it enacted by the Queen's most excellent Mtijesty, 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, 2. 3- Preliminary. 1. This Act may be cited as " The Courts of Justice (Salaries and ^ort title. Fimds)Act, 1S69." 2. This Act shall not come into operation until the first day of Commence- October one thousand eight hundred and sixty nine, which date is mentuf Act., ]^ereinafter referred to as the commencement of this Act. 3. In this Act — Definition o^ The term " the Treasury" means the Commiasioners of Her terms. Majesty's Treasm-y for the time being, or any two or more of them : The term "Court of Chancery" means the High Comi; of Chancery of England, and includes all ofiices mentioned in the third schedule to this Act : The term " Court of Admiralty" means the High Court of Admiralty of England : The term " Court of Bankruptcy" meims, except where other- wise expressly mentioned, the Court of Bankruptcy in London as constituted at the passing of this Act arid the District Courts of Banki-uptcy, and includes any Court, whether constituted before or after the commencement of this Act, which for the time being exercises the powers of the late Court for the Relief of Insolvent Debtors iu; ^ugloiid, so far as r^Lites to such late Court. Digitized by Microsoft® 104 STATUTES REFERRED TO*. Transfer of 'Stook and oa«h to ->Ia1rioDal 'Debt Oom- l«aisaioners. ''out of Cou- rsolidated 'Fund to I'fiultors of ■Court of Chancery, jwDd excess ol 'ceah balance to credit of . Accountant OoneraL I 4, 5, 6, 7 Court of Chtmoary. 4. As soon as may be after the oommenoement of this Act thft OoTerowr and Cknaapany of the Bank of Bnglaud shall, upon an tfBdfft of title Lord Chancellor to be made In that behalf, and without any dralt from the Acoountant-General, or act done by him, tranefw to the aooouat of the CommiBiriouerB for the Reduction of the National Debt all sumi* of stock and cadi which on the commencement of this Act may be standing in the books of the Bank of England in the name of the Accountant-General of the Court of Chancery to the credit of any of the accounts deecribed in the second part of the first schedule to this Act, and all dividends wMch may then be or thereafter become due on such stock. & After the commencement of this Act the Consolidated Fund shajl, to the same extent as the stock and cash so transferred, be liable to make good to the suitors of the Court of Chancery the debts which at the commencement of this Act may be due to them fai cash from the Court of Chancery in manner stated in the first. part of the fiJBt schedule to this Act, and the Treasury shall in. rnanu^ provided by this Act cause the sums required for the payment of such debts to be issued out of the Consolidated Fund. . 6. Wheaever the Lord Chancellor certifies in writing to the Trea-^ snry that the cash balance for the time being standing at the Bank of Bngle^d to the credit of the Accountant-general of the Court of Chancery is less than three hundred thousand pounds, or such other snm as may be from time to time fixedly the Lord Chancellor, twith the concurrence of the Treasury (regard being had to the amount required for earrying on the business of the office of the Ac- conjotant-Gtoneral, and to the proper remuneration of the Bank of Xbigland), the Treasury shall forthwith cause to be paid into the Bank ox Bn^land to the credit and with the privity of the said AocountMtt'-General to be appUed by him as part of the common and gene^ eash of the suitors of the said Court, such sum out of the growkig produce of the Consolidated Fund as may be required ify make up the said cash balance to the sum of five hundred r'&ouBand pounds, or such other sum as may from time to time be &ced in manner aforesaid, and the liability of the Consolidated li*UQd under this Act shall be diminished by the amount of the sum so paid.. whenever the sedd cash balance exceeds the sum of five hundred thousand pounds, or such other sum as may be fixed in manner Vrforesaid, the Governor and Company of &e Bank of England shall, >iipon an order of the Lord Chancellor (to he made on the written {Requisition of the Treasury), and without any draft from the |Aebt, and on such transfer being made the Consolidated Fund shall be ftirthw liable to the extent of any sum so transferred to mnke Kood to th6 suitors of the Court of Chancery any sxun of caah due. irom the Court to them. The said Accountant-General shall keep an account in his books ahswing the amount of the debts due from the Consolidated Fund to the suitors of the Court in respect of all sums of stoi^ and cash transferred to the aiid Commissioners under thlsAot. JAs to un- ^' Where the Lord Chancellor, in pursuance of section three of idaimed theAot of the Session of the sixteenth and seventeenth years of the Wividends rel^HQ of her present Majesty, chapter utnety-^ht, "For the further , [flflnder aeot. i»Uef of the Suitors of the High Coui-t of Chanceiy," makes an order: ffi, of lOand fo* carrying any dividends or cash to the credit of "The Suitors',, a/Yict, o98 Unclaimed Dividend Account," the dividends and cash so carried over shall be paiid into the receipt of Hei- Majiesty's Exchequer and ■ ^ lOmiafi, ^ tile Consolidated FuxuL Ou ao^ oi^ wftfi^^^J^ Court,, Digitized by Microsoft® COURTS OF JUSTICE ACT, 1 869. I05 undet section two ot the same Act, for paying to a sniltor any dW- § 7, 8, 0, dendH or cash so ciUTled over, the 'IVeaaury shall, Ut required in 10, 11 vriting by the Lord Chancellor,, out of the jrrowlnff produce of the Consolidated Fund, pay the same into the Bank with the privity of the Aocountant-Geneml of the Court of Chancery to the credit of the account from which such dividends were carried. 8, Ajfter the commencement of this Act the rent of any of the Income of Master's Offices in Southampton-buildings. Chancery-lane, aU Court of brokeraite payable by the broker of the Court ot Chancery to the Chancery to wedit of the Suitors' Fee Fund, and all sums for rent receiyed by go to Con- the Solicitor to the Suitors' Fund, and payable by him to the credit solidated of any of the accounts or funds mentioned in paH two of the first fund. schedule to this Act, and all moneys which, but for the passing of this Act, would be payable to the credit of any of the said accounts or funds, shall be paid into the receipt of Her Majesty's Exchequer at such times and in such manner as the Treasury may dliect, and shall be caiTied to. the Consolidated Fund. Court of Bankruptcy 9. As soon as may be after the commencement of this Act the Transfer of Governor and Company of the Bank of Bngland shall, upon am stock and order of the Lord ChancoUor to be made in that behalf, and cash to 'without any draift from the Accountant in Bankruptcy, or act done National tiy him, transfer to the account of the Commissioners for the Debt Com- Seduction of the National Debt all sums of stock and cash which minsioners. on the commencement of this Act may be standing in the books of the Bank of England In the name of the Accountant In Bank- ruptcy to the credit of any of the accounts described In the second part of the second schedule to this Act, and all dividends which may then be or thereafter become due on such stook. 10. After the commencement of this Act the Consolidated Fund Indemnity shall be liable to make good the debts due in cash from the Court of oat of Con- Bankruptcy in resjpect of the estates of bankrupts, in manner stated ^oUdated in the Urst port of the second schedule to this Act, and the debts Fund to due in cash from the late Court for the Relief of Insolvent Debtors J?'*"'' j' in England in respect of Estates of Insolvent Debtors, in manner ^"r'"' , stated in the tirst part of the same schedule, and the Treasury shall Bankruptcy, in manner provided by this Act cause the sums required for the payment of such debts to be issued out of the Consolidated Fund. 11. Whenever the Lord Chancellor certifies to the Treasury that the Deflciency eash balance for the time being standing at the Bonk of England to and exoo^.sof the credit of the Accountant in Bankruptcy, is less than t fty oaah balance; thousand pounds, or such other sum as may from time to time be to eredit of fixed by the Lord Chancellor, with the conciu-rence of the Treasury, Accuuntant (regard beii^ had to the amount required for carrying on the inBuik- business of the office of the Accountant and to the proper remune- ruptcy* ration of the Bank of England), the Trciisury shall forthwith cause to be paid into the Bank of England to the credit of the Accountant to be applied by him- as paH of such cash balance, such sum out of the growing produce of the Consolidated Fund as may be required to make up the sold cosh balance to the sum of one hundred thou- sand pounds, or such other sum as may from time to time be fixed in mannef aforesaid. Whenever the said cash balance Exceed the sum of one hundred thousand poimds, or such other sum as may from time to time b© fixed in manner aforesaid, the Governor and Company of the Bank: of England shsai, on an order of the Lord Chancellor, to be made on the written requisition of the Treasiu'y, and without any draft! from the Accountant, or out done by him, transfer such excess, oi- such port thereof as may be specified in the order, to the account ot theiOommissioners for the Reduction of the National Debt, and on sucfe transfer being made the Consolidated Fund shall be further liivble to the extent of the sum so pi.ud to make good any sum of Digitized by Microsoft® io6 STATUTES REFERRED TO.. '14 § 11, 12, 13, cash due from the Court of Bankrptcy in respect of estates of bankrupts and insolvents. _ If under any Act passed in the present Session any of the dutieis previously performed by the Accountant in Bankruptcy are trans- ferred to any other officer, the provisions of this section shall apply in the same manner as if they had been separately enacted with respect to such officer and his omce and the duties to be performed by him, and such officer had been named herein instead of the said Accountant. Salaries of Judges charged on Consoli- dated Fund, Salmies, Pensions, dsc. 12. After the commencement of this Act the salaries and pen- sions of the judges mentioned in the first parts of the third and fourth schedides to this Act shaU be paid out of the Consolidated Fund. Compenaa- 13. After the commenp^ment of this Act all compensations, pen- tlons, pen- slons, retiring annuities, and superannuation allowances, at thafc_ sions, date chargetf on any of the stock or cash standing to any of the salaries, &c., accounts mentioned in the tirst and second schedules to this Act, or charged on on the interest of any such stock, and the salaries, charges, and annual votes payments described in the second parts of the third and fourth schedules to this Act, and the salaries of and all pensions and- superannuaition allowances which may be granted to existing and future officers, clerks, and persons employed in the Court of Chancery or the Court of Bankruptcy, and the expenses and con- tingencies of those Courts and of the offices therein, and all other sums payable under any Act relating to such Courts, out of any of the stock and cash transferred upder this Act, or the interest of such stock, including sums payable in pursuance of section six- teen of The Courts of Justice Building Act, 1865 (which relates to the purchase of compensation allowances), and also all arrears of such compensations, pensions, annuities, allowances, salaries, charges, and payments accrued before the conunencement of this Act, shall be paid, out of moneys provided by Parliament for the purpose. All compensations, pensions, annuities, allowances, and salaries Sayable under this section shaU be deemed to accrue from day to ay, but shall be payable on such days as the Treasury may&om. time to time appoint. If the moneys provided by Parliament are at any time insuffi- cient for the purposes mentioned in this section, the Consolidated- Fund ^hall be liable to make good such deficiency to the'same ex- tent to which the stock and cash, and the interest of such stock, transferred under this Act, or the income thereof, are liable at the commencement of this Act. Nothing in this Act shall deprive any person who at the com- mencement of this Act enjoys any compensation, pension, re- tiring annuity, superannuation allowance, or salary mentioned in, this section, of his right to continue to receive the same compensa- tion, pension^ retiring annuity, superannuation allowance, or salary, or of any right he may have to receive any progressive or pro- spective increase of salary or to obtain any promotion or suc- cession, or any pension, retiring annuity, or superannuation allow- ance, and nothing in this Act shall atfect or diminish any Buch right. Officers of Court. Appoint- 14. The Treasury may from time to time, by order made with ment of the concurrence of the Lord Chancellor, and also with the Offloers. concurrence of the Master of ISlie Rolls in the case of officers who are appointed or whose salaries are fixed by tiie Master of the Rolls, either solely or jointly with the Lord Chancellor, and with the concurrence of the Judge of the Court of Admiralty in the case of the officeris of that Courtj iucr.ease oi; diminish tlje numb^iv Digitized by Microsoft® COURTS OF JUSTICE ACT, 1869. I07 of oflBcers in the Courts of Chancery, Bankruptcy, and Admiralty, § 14, 15, 10 and the amounts of the salaries of such officers, and determii^e the ^ conditions on which they are to hold their offices, and regulate Uie expenses and contingencies incurred in reject of the said Courts or the officers belonging th3reto. Any officer appointed ajter the commencement of this Act shall take his office subject to any order that may thereafter he made, under this section in relation to the abolition or modification of his office, bat no order made under this section shall, without his consent, apply to any officer holding office at the date of the com- mencement of this Act, and when the conditions on which any officer is to hold his office, and the salary to be paid to him, have l^een determined by any order under under this section for the time being in force, no subsequent order under this section shall apply to such- apply to such officer without his consent. Any order made under this section shall he laid before both Houses of Parliament within fourteen days after it is made, if Parliament be then sitting, or if not, within fourteen days after the commence- ment of the next Session. It shall also be published in the Iiondon Gazette, and when so published shall be of the same force as if it weje enacted in this Act, but subject to being varied or repealed from time to time by oth^r orders mode in like, manner under this Act, and any enactment inconsistent with such order shall be re- pealed from and after the date of any such publication. The term " Officer" in this section means all officers, clerks, mes- sengers, and persons who are mentioned in the second parts of the third and fourth shedules to this Act, or are for the time being em- ployed in the said Courts of Chancery, Bankruptcy, and Admi^ty, or any of them, or the offices connected therewith. 15. The building in Basinghall-street, in the City of London, Courts and; known as the Court of Bankruptcy, and the buildings in Portugal- buildings, street, Lincoln's-inn-fields, formerly known as the Court for R^ef of Insolvent Debtors, (and occupied at the commencement of this Act by the officers of that Court, and by the Land Regbtry land the Courts of Justice Commission), shall, with the sites thereof, continue vested in the Conunissioners of Her Majesty's Works and Public Buildings, and shall he fropropriated as the Lord Chancellor, with the concurrence of the Treasury, from time to time directs. On the commencement of this Act all the rights and interest of the District Commissioners in the buildings then used for the Dis- trict Courts of Bankruptcy, and in all other buUdings vested in the 'District Commissioners as snoh, tuad in the G^tas tiiereef, and in all furniture and effects belonging to the District Coiu^^ and the offices thereof, shall be transferred to and vest in the Commissioners of Her Jffajeaty's Works and Public Buildings, and the same shaU be appro- >priated as the Lord Chancellor, with the concurrence of the Treasury, &om time to time directs. ' Fees. 16. After the commencement of this Act the Lord Chancellor, Alteration of ■ •with the advice and consent of the Lords Justices of Appeal, Master "es ini^ourc. of the R0U3, and Vice-ChanceUora, or any three of them, and with °' VP^^eiy^ the concurrence of the Treasury, may, frtwn time to time by order "increase, reduce, or abolish all or any of the existing fees Mid per- centages (includjlng the per-centage on estates of lonaticsX apd appoint new feas to be taken in relation to proceedings in the Court of Chancery, or in any of the offices mentioned in wie ttrird schedule to this Act. Until any such order is made the fees existing at the conunence- nient of tbus Act shall coatinue to be taken. . -. ^ Digitized by Microsoft® io8 STATUTES REFERRED TO* §17.18,10, 20,21,23, 23,24 Jees in Court of Admindty. Fees in Court of Bankruptcy Fees to be taken by stamps. Stamp to be impresBed or adhesive. General rules to be made by Treasury. Documents not properly stamped to be invalid. Keceipts from stamps to be paid to Conioli- dated Fund. Annual account aoid expenditure M Courts of 'Chaiioeiy and Bank- ruptoy. H. After the commencement oi this Act, the Judge of the Cour& of Admiralty mav from time to time by order, with the concurrence of the Treasury, morease, reduce, or abolish all or ajiy of the exists ing fees, and appoint new fees to be taken in relation to proceeding in the Court of Admiralty. Until any such order is made the fees existing at the commence- ment of this Act shall continue to be taken. IB, After the commencement of this Act the Lord Chancellor^ with the concurrence of the Treasury, may from time to time by order, increase, reduce, or abolish all or any of the existing fees, and appoint new fees to be tak:en in relation to proceedings m the Coui-t of Bankruptcy. Until any such order is made the fees existing at the commence- ment of tMs Act shall continue to be taken. 10. After the commencement of this Act all fees whatever, or pay- ments, in the nature or lieu of fees, for the time being payable in the Courts of Chancery, Admiralty, and Bankruptcy, or any of the> offices therein, including the per centage payable out of estates of lunatics, shall, except so far as the Lord Chancellor may from time to time otherwise by order direct, be taken by means of stampe^j and if taken in money in pursuance of any such order shall be pai(F into the receipt of Her ME^esty's Exchequer, and be carried to th» Consolidated Fund. 20. All or any stamps to be used under this Aot shaU be iupresBed or adhesive, as the Treasiu? from time to time direct. 21. The Treasury, with the concurrence of the Lord Chancellor^ or, in the case of the Court of Admiralty, of the Judge of that Court, may from time to time make suck roles as seem fit for regulating^ the use of stamps under this Act, and particularly for pr^cnlbi^^ the application thereof to documents from time to time in use or i required to be used for the pm'poses of such stamps and for Insuxiai^. the proper cancellation of adhesive stamps and keeping accounts of such stamps. 2Z. Any document which ought to bear a stamp under this Acbt shall not be of any validity unless and until it is properly stamped d but if aiay such docmnent is through mistake or ii^vertence re-j oeived, filed-, or used without being properly stamped, the Lord'- Chaneellot ot », Judge of one of the said Coiuts may, if he thinks' fit, order that the same be stamped as in such order may be directed, | and on such document being stamped accordingly the same and] every proceeding relative thereto shall be as valid as if such docu- i ment had been properly stamped in the first instance. ' 23. The Commissioners of Inland Revenue shall keep a separate account of all money received in respect of stamps under this Act ;^ and, sul^ect to the deduction of any expenses incurred by those Commissioners in the execution of this Act, the money so received shall, under the directic^ of the Treasury, be carried to and form part of the Coasolidated Fund. 24. The Treasury shall cause to be prepared annually (with respect to the Court of Chancery and tkie Court of Bankraptcy separately), an account for the year ending t^e thirty-first of March, showing on the one side the foUo'wlng receipts : 1. The dividends or interest which would have arisen from the stook transferred to the Commissioners for the Reduction of the :^7ational Debt imder this Act, and from the stock and seourities purchased with cash so transferred, if such stock and securities wei-e not cancelled ; 2. All Hnclalmed dividends, rents, brokerage, and other sums paid into the receipt of Her Majesty's Exchequer under this Act in respect of the said Courts respectively ; 3. — The amount received, after deducting the expenses, in respect - of fees and per-centages taken in relation to proceedings in the as^ Cqvv^ re^octlTe]^, qi m any of the Qfflcea th«£f9f; — ' • - ^ — Digitized by Microsoft® COURTS OF JUSTICE ACT, 1 869. IQ9 and showing on the other side the expendituie during such year S 24, 25. ' for compensations, pensions, retking annuities, superannuation 26, 27, 20^ aJlowaAces, salaries, charges, expenses, and payments incurred in 29, 30, 31, re^C(t of the said Courts respectively. 32 Where any sum has been paid in pursuance of this Act out of the f owing produce of the Consolidated Fund to the credit of the ocountant-General of the Court of Chancery, or the Accountant in Bankruptcy or other ofiScer, such allowance shall be made in the * sedd acoouAts as if on the day of such payment an amount of the Three Per Centum Consolidated Bank Aux^iities transferred raider this Act, had been sold sufficient to raise the sum so paid. The term " Com-t of Bankruptcy" in this section means the Court as defined by this Act, or as constituted by any Act of the present Application 25. So much of tbe Courts «f Law Fees Act, 1S6T, an relates to 30 and SI the account mth respect to the High Court of Admlialty, ^all be yict c 1S2 uoDstrued ta if the tees therein referred to were the fees authorized t<, Admiralty under this Act. \e,v&. 36. ISach of the said annual accounts prepared in pursuanee of . * this Act shall show the deficit or surplus of reeeipta as compared Accounts to Trtth expewtiturs, and the second of each such yearly accounts and j^*"??, •rery sabseciDent account shall show the items for two consecutive *°2 oenclt years, and the increase or decrease of any item in the second of these *° . °'"'^" _ jean as eomparsd yitk the ftrat. I^viLm^ The first of the siud annual accounts shall be made up for the J""*- pedod between the commencement of this Act and the thirty-first dM_of March, one thousand ei^ht hundred and seventy. Accounts to ST. Saoh of the said annual accounts prepared in pursuance of this -^ ^^^ Act shall be h^d before both Houses of Parliament within one month j^efcrre after the thirty-first day of March in each year, if Parliament is Houses of ttien sitting, or if not, th«i within one month after the next meeting Parliament, of Parli»m«it. Se. If in affljf year there is a deficit on either of the annual Provisioa aooounts as aforesaid, the amount of sooh deficit shaU be for deficit 09 debited to the same accsnnt in the sext following yeaa: ; pi^ aecoimts. vlded that no su<^ defleit abaH 1^ debited to any account' niless and until there baa been in some year a surplfu on tjie aame account, aud aft«- there has been such a suirpltt^ the deficit (if any) of every sulraequent year shall be so debited, but ■et tiiat of any year previous to that in which there first was a surplus. iSisc&llOfnimts. 29. The provisions of this Act with respect to the Court of ^^J*"? '"' 1 Bankruptcy, sAiall be subject to any provisions made with respect to Act of pijs-^ that Court by any Act passed In the present Session. ^°* aessioii. 30i As soon as any sums of stock have been transferred in pur- AppUoatioa suance of this Act to the Commissioners for the Reduction of the of stock and Kational Debt, the Treasury diall by warrant direct the Governor cash tcans- and Company of the Bank of England to cancel such sums in fezred to the books of the said Governor and Company. The CpmrnisSionera Commia> for the Reduction of the National Debt shaU apply ail cash trans- sioners for ferred to them in pursuance of this Act in reduction of the Ka- Reduction of tional Debt in the same manner as if such cash were a surplus of National the annual revenue. Debt. 31. The Treasury shall cause to be kept by sach persons and j„„uQtg_ In such manner as they mav from time to time direct, aoeounts of the liability of tbe Consolidated Fund under tUs Aet, and sudi accounts as may be necessarv in order to admit of the preparation of the annual aoeounts requued t^ this Act in respect of the Cowts of Chancery and Bankruptcy. ' Oiders bv 32. The Lord Chancellor may fi-om time to time make such ^ord Oban- orders as he may tbink necessary for cajfrying tbis Act into effect. ceUar. Digitized by Microsoft® no STATUTES REFERRED TO. § 33, 34 Treasury ma-y make regulatiop^. Itepeal of Acts OS ia fith^diedule 33. The Treasury from time to time may malte such rules and regulations and issue such order concerning the form and mode of transmission of certittcates and vouchers, and otherwise for- checking, controlling, and regulating the payment of the charges transferred by this Act to the Consolidated Fund or moneys pro- vided by Parliament, and for enforcing and regulating the accounting for and due payment of the stock and moneys to be transferred to the Commissioners for the Reduction of the National Debt, or to be carried to the Consolidated Fund under 'this Act, as they may think fit ; and a return of any SHch rules and regulations which may be issued by the Treasury shall be laid before both Houses of Parlia- ment within six weeks from the date of the issue thereof, if Parhament be then sitting, and if it be not then sitting, within six weeks from the day of the next ensuing meeting of Parliament. 34. The enactments desoibed in the fifth schedule to this Act, are hereby rejrealed, Priyrlded that tMs repeal shall not 'affect anything aJready done, or suffered, or any right acquired or order made, under the said enactments or any of them. Nor shall this repeal aSect the right of any p^son to receive ench salary, compensation, retiring azmulty, pension, superannuation allowance, or progressive or prospective increase of salary, or to obtain sudi promotion or succession, or pension, retiring annuity, or superannuation allowance as he might hav^ E^^eiy^^ ^ oht^ae^f if this, repesd luid not beipu «nacte(L Digitized by Microsoft® COURTS OF JUSTICE ACT, 1 869. a s EH i K << ^ ■a kH r-) FM i p5 H Iz; P« P .9 » •a •R o ■g ■ •S>-4 t»^ a Wi^ s 1! W 1— 1 n i *-< -^ P rf £ o S o o-^ K o I g Pi-g oa P* 5 oa o ■efip-t to ass ■"tig -i OiS S o a _■ .5 Digitized by Microsoft® COURTS OF JUSTICE ACT, 1869. 117 ■aSU n -31 s P ( ■to 8,13. 9 s'S . s <» -a 3 ta C « oa r ||.g.! •a s ° L U «3 Pt« ■« a -g " -a ill.! Digitized by IVIicrosoffS) ii8 STATUTES REFERRED TO. Digitized by Microsoft® COURTS OF JUSTICE ACT, l86g. 119 .9 '^ d S it 5 tS « Si i' ■i ^ i 1 •s ■Sm o I 11 " a b «1 ■si l»Ss _ S 5 fl Ph '3 g^O'S|5s ^^^ II §§ g s s o'S „g5S5oS §2 £ o jj eJ o fl d ■6 s S 0-*» Q- ft 11 I iS|i .g ? _^5 P.OT id'H do o ^■a a J4 S 2 SB'S o Da .2 00 ■=1 2 & Digitized by Microsoft® STATUTES REFERRED TO. THIRD SCHEDULE. Part I. Salaries and Pensions chfirged on the Consolidated Fund. Fund out of -which Salaries are now payable. Salaries. Acts. Consolidated Fund Lord Chancellor. Lords Commissioners of the Great SeaL Lords Justices of Appeal. Master of the Rolls. Vice-Chajicellors. ISdiievict. u. 87, s. 16. Part II. Salaries ajid Expenses of the Court of Chancery payable out of moneys provided by Parliament for the purpose. Funds out of which Charges are now payable. Charges, Expenses, and Contingencies of Offices. Acts. Suitors Fee Fund Consolidated Fund Consolidated Fund Suitors Fee Fund Suitors Fund Surplus Interest Fund Consolidated Fund Suitors Fee Fund Lord Chancellor. Salaries of principal secre- tary, gentleman of the chamber, purse bearer, train bearer, porter, and messenger to Great Seal, and messenger to Lord Chancellor when out of town, secretary of presenta- tions and secretary of commissions. 3 & 4 Will 4, c. 84. 15 & 16 Vict. c. 87, and orders of Court of Chan- cery. clerks to principal secretary. , ushers, tipstaves, per- sons to keep order in court, stokers, and court keepers. Expenses of office of clerk of presentations. Expenses and contingencies of the Court and of above officers. 3 & 4 Will. 4, c. 84. 3 & 4 Vict. c. 94. 15 & 16 Vict. c. 87, and orders of Court of Chan- cery. 3 & 4 Vict. c. 94. 50 Geo. 3, c. 164 (Local and Personal). 3 & 4 Vict. c. 94. 3 & 4 WiU. 4, c. 94. 3 & 4 WilL 4, c. 84. 15 n^iv^■ «-nA *«« ...,«« — *;-- iu- Digitized by Microsoft® In part, namely ; ■ except section eight. COURTS OF JUSTICE ACT, 1869. 125 Date of Act. Title of Act. 46 Geo. 3. u. 129. 60 Geo. 3. pa>rb. c clxiy. in 63 Geo. 3. c. 24. in paat. 2 & 3 WilL 4. 122. in 3 & 4 WilL part. 4. c. 94. in 5 & 6 WilL 4. c. ; part. 6 & 7 WiU. 4. c. 27. 7 Wm. 4. & 1 Vict. c. 46. in part. An Act to provide additional salaries to the present der^ in the office of the Accountant General of the High Court of Chancery, and to provide additional clerks for the said office, -with salaries ; and to make other payments in respect of the said office. An Act for building certain^ offices for the examiners, cursitors, clerk of the Crown, and clerks of the petty bag of the High Court of Chancery ; and for making certain regu- lations in the Examiner's office of the said court ; and for making provision for such of the examiners, deputy examin ers, and clerks as, &om length of service, or from age or infirmity, are or shall be incapacitated from the due execution of their offices ; and for maiking provision for other officers of the said court ; and for making other payments in respect of the said offices. An Act to facilitate the ad- ministration of justice. An Act for making provision for the liord High Chancellor of England in lieu of fees heretofore received by him. An Act for the regulation of the' proceedings and practice of certain offices of the High Court of Chancery in Ei^- land. An Act for investing in govern- ment securities a portion of the cash lying unemployed in the Bank of England belonging to bankrupt's es- tates, and ap;^lying the in- terest thereon in discharge of the expenses of the Court of Bankruptcy, and for the relief of the suitors in the said court, and for removing doubts as to the extent of the powers of the Court of Review and of the Sub- division Courts. An Act for investing in government securities further portions of the cash lying unemployed in the Bank of England belonging to ba^rupts' estates. An Act to vest the Rolls Estate^ in Her Majesty, and to pro- vide for the future payment of the sadary of the Master of the Rolls, and the expenses of the Rolls ChapeL Digitized by Microsoft® In part, namely ;— sections one, three, eight, fifteen to nine- teen, twenty-one, and twenty-five to twenty-eight. ^ In part, namely ; — sec- tions seven to twelve. In part, namel;;^ ; — ■ except sections ei^t to ten. In part, namely ; — sec- tions thirty-five to thirty-eight and forty-three to forty- seven. In part, namely ; — sec- tions one to four, nine to eleven, four- teen to seventeen, nineteen and twenty. In part, namely ; — sec^ tions six to nine and eleven to thirteen. 126 STATUTES REFERRED Ta Date of Act. Title of Act. 1 & 2 Vict. 0. 64. 3 & 4 Vict. c. 66. In part. 3 (![ 4 Vict. c. 94. 5 Vict. c. 5. in part. 5 & 6 Vict. o. 84. in part. 5 & 6 Vict. 0. 103. in pai-t An Act for making further investments from the money of the suitors of the Court of Chancer; and the Court of Exchequer, and for providing for the payment into> court of fees received hy certain officers of the Lord Chancellor. An Act to make provision for^j ^ namely ;-sec- thejudge,.reg^trar,andinar-^ tfons eight and tldr- shal of the High Court of Admiralty of England. An Act for facilitating the ad-" ministration of justice in the Court of Chancery. An Act to make further pro- vision for the administration of justice. An Act to alter and amend the' practice and course of pro- ceeding under commissions in the nature of writs de lunatico inquirendo. An Act for abolishing certain offices of the High Court of Chancery in England. In part, namely ;— sec- tions two, three, and four. In part,, namely; — sec- tions eleven^ twelve^ and fifty-eight to- sixty-three. 8 and 9 Vict. m. 100. in part. 12 &. 13 .Vict. c. 109. in part. 14'& 15 Vict. c. 83. in part. 15 & 16 Vict. u. 80. in part. 15 & 16 Vict. c. 87. in part. An Act for the regnlation of and treatment 01 of teen to sixteen. the care lunatics. An Act to amend an Act to' regulate certain offices in the petty bag in the High Court of Chancery, the practice of the common law side of that court, and the enrolment office of the said court. An Act to improve theadminis-' tration of justice in the Court of Chancery and the Judicial Committee of the Privy Council. An Act to abolish the- office of Master in Ordinary of the High Court of Chancery, and to make provision for the more speedy and efficient dis- patch of business in the said court. An Act for the relief of the suitors in the High Court of Chancery. Digitized by Microsoft® In part, namely ; — ex- cept section ten. In part, namely ; — sec- tions twenty, twenty- one to twenty-seven, and section twenty- nine from "and fur- ther that all divi- dends" to end of section. In part, namely •.—sec- tions th&ty-flvej, ninety-seven, and nine<7-eight. In part, namely ; — sec- tions six to eight, twenty-one, and twenty-three. In part, namely ; — sec- tion nineteen. In part namely ; — sec- tions six, forty-eight, and forty-nine. In part, namely ;— sec- tions two, six to- thirteen, forty-eight, fifty-one, fifty-three, fifty-four, and so much of section fifty- two as relates to the fund out of which the sums are to be payable COURTS OF JUSTICE ACT, l86g. 127 Bate of Act. Title of Act. 16 & 17 part. 16 & 17 part. 17 & 18 part. Vict. c. 70. in Viot. Vict. u. 78. ia 18 & 19 part. Viot. c. 134. in 25 & 2 part. Vict. c. An Act for the regulation of^ proceedings under com- missioners of lunacy, and the consolidation and amendment of the Acts respecting lunatics so found by inquisition on their estates. An Act for the relief of the suitors of the High Court of Chancery. An Act to appoint persons to' administer oaths, and to sub- stitute stamps in lieu of fees, and for other purposes^ in the High Court of Admiralty of England. An Act to make further proTi-" sion for the more speedy and efficient dispatch of business in the High Court of Chan- cery, and to vest in the Lord Chancellor the ground and buildings of the said Court, situate inSouthamptonBuHd- ings. Chancery Lane, "with powers of leasing and sale thereof. The Lunacy Regulation Act, In part, namely ; — sec- tions twenty-five, thirty, and thirty-one In part, namely ; — sec- tion two from "out of the fund" to the end of the section, and section four. In part, namely ; — sec- tions fourteen to twenty-one, both in- clusive. In part, namely ; — sec- tion fourteen, and tions seventeen to twenty-two. Section twenty-seven. Digitized by Microsoft® 128 STATUTES RtFERRED TO. JUDICIAL COMMITTEE ACT, 1871, 24 and j^ Vict. cap. gi, [SW This statute is referred to in aec. 6, page 4.] An Act t6 make further provision for the despatch of business by the Judicial Committee of the Privy Council. [21st August 1871.] Whereas it is expedient to make further provision for the despatch of business by the Judicial Committee of the 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 § 1 Commons, in this present Parliament assembled, and by the au- thority of the same, as follows : 1. Her Majesty may within twelve months after the passing of tliis Appoint- Act, by warrant under her sign manual, appoint four jwrsons quali- ment of ad- fied as in this Act mentioned, whether already members of such ditional Judicial Committee or not, to act as members of the Judicial Com- members of mittee of the Privy Council under the provisions of this Act, and the Judicial may from time to time within two years after the passing of this Act Committee, by a like warrant fill any vacancies occasioned by death or other- wise in the offices of the persons so appointed. Any persons appointed to act under the provisions of this Act as members' of the said Judicial Committee must be specially qualitied as follows ; that is to say, must at the date of their appointment be or have been judges of one of Her Majesty's Su- perior Courts at WestminsteTj or a Chief Justice of the High Court of Judicature at Fort William m Bengal, or Madras or Bombay, or of the late Supreme Court of Judicature at Fort William in Bengal Where any person appointed in pursuance of the provisions herein contained to act as a member of the said Judicial Committee is at the date of his appointment a judge as aforesaid, he shall on his ap- pointment vacate his office as such judge, but as to pension shall remain in the same position as if no such appointment had been made ; and service as a member of the Judicial Committee shall for the purposes of pension be reckoned as service in the Court from which he was removed. Whereas doubts have been entertained as to the meaning and effects pf the provisions of the Court of Probate Act and the Divorce Act as to the pension of the judge of the Probate and judge of the Divorce Courts : Be it declared and enacted, that the said pension was intended to be and shall be similar in amount and in all other respects to the pension to which the puisne judges of the superior courts of common law are entitled. Tliere shall be paid to each of the said judges of the Judicial Com- mittee so long as he shall hold such office a salary of five thousand pounds a yeai' including any pension to which he may be entitled. Digitized by Microsoft® JUDICIAL COMMITTEE ACT, 1871. I { - Any salavy payable under this Act shall be chai'gecl on and paid § 1, 2, 3. out of the Consolidated Fund of the United Kingdom of Great , Britain and Ireland, It shall grow due from day to day, and shall be payable to the person entitled thereto, or to his executors or administrators, at such intervals in every year, not being longer than three mouths, as the Ti'ea- sury may from time to tune determine. It shall be the duty of every person appointed to act as a paid member of the Judicial Committee under this Act to attend the sittings of the said committee when smnmoned thereto uuless he shall be prevented by reasonable cause ; and such members shall hold their office during good behaviom-, and shall continue to hold their offices notwithstanding the demise of the Crown, but they shall be removable by Her Majesty, her heirs and succes- soi-s, upon the address of both Houses of Parliament : Provided always, theysliall hold their offices subject to such arrangements as may be hereafter made by Pailiament for the constitution of a supreme court of appellate jurisdiction. Provided that no member of the Judicial Committee of the ^ Privy Council shall take pai-t in the heai-ing of any appeal from any decision or judgment which he has given or assisted in giving. 2. In this Act— The term " Superior Courts at Westminster" means Her Majesty's Definition Superior Courts of Law and Equity at Westminster, inclusive " Superior of the Court of Probate in England and the Court for Divorce ^""^^ *' and Matrimonial Causes, and the High Court of Admiralty of West- England. . mmster." 3. This Act shall not, except in so far as is by this Act expressly . provided, affect the Act of the session of the third and fourth years j Y'°S,°I. of the reign of Kmg William th6 Fourth, chapter forty-one, in- Actsmatii titiUed "An Act for the better admuiistration of justice in His J,° •'™;°'~ Majesty's Privy Council," or any Act amending the same. vyomnuiiee. 4. This Act may be cited as " The Judicial Committee Act, 1871," si,__|. titi. and shall, so far as is consistent with the tenor thereof, be con- °'""'' """=• strued as one with any Acts for the time being in force relating to the Judicial Committee of the Privy CoimciL Digitized by Microsoft® 130 STATUTES REFERRED TO. TRUSTEES RELIEF ACT, 1847, 10 and II Vict, cap. p6. [S^ Tliis statute is referred to in sec. 25, page 22. The third section has been repealed by 35 and 36 Vict., c. 44, s. 26, and is therefore omitted here.] An Act for better securing trust funds, and for the relief of trustees. [^nd July,^ 1847.] Whereas it is expedient to provide means for better securing trust funds, and for reheving trustees from the responsibility of ad- ministering trust funds in cases where they are desirous of being so relieved : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and § 1 2 Commons, in this present Parliament assembled, and by the au^ * thority of the same : ' 1. That all trustees, executors, administrators, or other persons, Trustees having in their hands any monies, belonging to any trust whatsoever, may pay or the major part of them, shall be at liberty, on filing an affidavit trus ; monies shortly describing the instrument creating the trust, according to the or transfer best of their knowledge and belief, to pay the same, with the Privity stocks and of the Accountant -General of the High Court of Chancery, into the securities Bank of England^ to the account of such Accountant General in the into the matter of the particular trust (describing the same by the names of Court of the parties, as accurately as may be, for the purpose of dlstinguish- Chancery. ing it), in trust to attend* the orders of the said Court ; and that all trustees or other persons having any annuities or stocks standing in their name in the books of the Governor and Company of the Baiik of England or of the East India Company, or South Sea Company, or any Government or Parliamentary Securities standing in their names, or in the names of any deceased persons of whom they shall be personal representatives, upon any trusts whatsoever, or the major part of them, shall be at Uberiy to ti-ansfer or deposit such stocks or . . f securities into or in the name of the said Accountant General, with Receipt of jjjg privity, in the matter of the particular trust (describing the same p ^ as aforesaid), in trust to attend the orders of the said Court ; and in •t if ^'i*'^ f every such case the receipt of one of the cashiers of the said Bank for ^ron r **^® money so paid, or, in the case of the stocks or secmities, the cer- officer to be t^^*^^*^ ^^ *'^® proper office^ of the transfer or deposit of such stocks B^cient ^^ securities, shall be a sufficient discharge to such trustees or other discharge persons for the money so paid, or the stocks or securities so transferred ^ * or deposited. Court of 2. And be it it enacted, That such orders as shall seem fit shall be Chancery to from time to time made oy the High Court of Chancery in respect of make orders the trust monies, stocks, or securities so paid in, transferred, and on petition, deposited as aforesaid, and for the investment and payment of any Digitized by Microsoft® TRUSTEES RELIEF ACT, 1 84 7. 131 ^ch monies, or of any dividends or interest on any such stocks or § 2, 4, 5, 6 securities, and for the transfer and delivery out of any such stocks and securities, and for the administration of any such trusts generally, upon a petition to be presented in a summary way to the Lord Chan- without Bill, «eUor or the Master of the Rolls, without bill, by such party or for applica- parties, as to the Court shaU. appear to be competent and necessary in *io^ p^ trust that behalf, and service of such petitition shall be made upon such monies and person or persons as the Court shall see fit and direct ; and every aaministra- order made upon any such petition shall have the same authority and "'^^ °^ trust. «fEect, and shall be enforced and subject to rehearing and appeal, in the same manner as if the same had been made in a suit regularly instituted in the Court ; and if it shall appear that any such trust funds cannot be safely distributed without the institution of one or more suit or suits, the Lord Chancellor or Master of the Rolls may -"O™ Chan- direct any such suit or suits to be instituted. ^f J' ^^^r * * « « Master of the. 4. And be it enacted. That the Lord Chancellor, with the assistance I'olls, &c., of the Master of the Rolls or of one of the Vice-Chancellors, shaU ^^y ™p^ have power, and is hereby authorized to make such orders as from ^^l^fi?* time to time shall seem necessary for better carrying the provisions "J^^^"- of this Act into effect. Construc- 6. .And be it enacted. That in the construction of this Act, the tion of ex- expression "The Lord Chancellor" shall mean and include the Lord pression Chancellor, Lord Keeper, and Lords Commissioners for the custody "LordChan- of the Great Seal of Great Britain for the time being. ccllor." 6. And be it enacted, That this Act may be amendTsd or repealed by any Act to be passed in this present Session of Parliament. amended &c. Digitized by Microsoft® STATUTES REFERRED TO, TRUSTEES RELIEF ACT, 1849. 12 and I J Vic, cap. ^4, ^SM" This statute is referred to in sec. 25, page 22.] § 1, 2 10 & 11 Vict., e. 96. Court of Chancery may, upon application by majority of trustees, &c., order payment or transfer of trust monies, stocks, or securities . into Court of Chancery. Act may bo amended, &c. An act for the further relief of Tmstees. [2Sth July, ]S4n.]_ Whereas difficulties have arisen in the transfer of secuiities vested in Trostees in certain cases under the provisions of an Act passed in the Session of Parliament, holden in the tenth and eleventh years of the reign of her present Majesty, intituled, ^n Act for better securing Trust Funds, and for the Relief of Trustees, and it is expedient to make further provision for carrying into effect the objects of the said recited Act : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the I-ords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same : 1, That if upon any petition presented to the Lord Chancellor or Master of the Rolls in the matter of the said Act it shall appear to the Judge of the Court of Chancery before whom such petition shall be heard that any monies, annuities, stocks, or securities are vested in any persons as trustees, executors, or administrators, or othenvisc, upon trusts within the meaning of the said recited Act, aud that the major part of such persons are desirous of transferring, paying, or delivering the same to the Accountant General of the High Court of Chancery under the provisions of the said recited Act, but that for any reason the concurrence of the other or others of them camiot be had, it shall be lawful for such Judge as aforesaid to order and direct such transfer, payment, or delivery to be made by the major part of such persons without the concurrence of the other or others of them ; and where any such monies or Government or Parliamentary securities shall de deposited mth any banker, broker, or other depository, it shall be lawful for such Judge as aforesaid to make such order for the payment or delivery of such monies, Government or Parlia- mentary securities, to the major part of such trustees, executors, administrators, or other persons as aforesaid, for the purpose of being paid or delivered to the said Accountant Generalas to the said Judge shall seem meet ; and every transfer of any amiuities, stocks, or securities, and every payment of money or delivery of securities, in pursuance of any such order, shall be as valid and effectual as if the same hod been made on the authority or by the Act of all the persons entitled to the annuities, stocks, or securities so transfeiTed, or the monies or securities so paid or delivered respectively, and shaU fully protect and indemnify the Governor and CompaJiy of the Bank of England, the East India Company, and the South Sea Company, and all other persons acting under or in pursuance of such order. 2. And be it enacted. That tliis Act may be amended or repealed in the present Session of Parliament. Digitized by Microsoft® JURISDICTION OF THE JUDICIAL COJIMITTEE. 133 NOTES. NOTE 1.— The Jurisdiction of the Judicial Committee of Her Majesty's Privy Council.— (Title, p. 1.) This tribunal was establislied in its present form by 2 and 3, Will. IV., c. 92 ; 3,and 4, Will. IV., c. 41, and 6 and 7, Vict., c. 38, for the disposal of appeals and audi other uiattei-s as the Queen may, in Council, refer to them. The principal Acts referring to the Committee are as follows : — As to transfer to Privy Coimcil of Power of Court of Delegates, see 2 and 3, WiU. IV., c. 92. As to Constitution Powers and Jurisdiction of Judicial Committee, see 3 and 4, WiU. IV., c. 41 ; 3 and 4 Vict, c. 65, s. 17 ; 6 and 7 Vict., 0. 38 ; 7 and 8 Vict., c K) : 14 and 15 Vict., c. 83, ss. 15, 16 ; 34 and 35 Vict, c. 91. As to Constitution of Judicial Committee In Ecclesiastical cases, see 3 and 4 Vict, c. 86. As to Appeals to Judicial Committee from Ecclesiastical (md Admiralty Courts, see 2 and 3 Will, IV., c. 92 ; 3 and 4 Vict. , c. 65, s. 17 ; 3 and 4 Vict, c. 66, s. 4 ; ti and 7 Vict., c. 38 ; 24 and 25 Vict, c. 10 ; 27 and 28, Vict, c. 25. As to Appeals to Judicial Committee from Colonies, see 7 and 8 Vict, c. 69. As to Appeals to Judicial Committee from India, see 8 and 9 Vict, c. 30. As to Appeals to Judicial Committee from Admiralty Court, and maJdng of general onlera by, in prize causes, see 27 and 28 Vict., c. 25. .\s to Jurisdiction of Judicial Committee to grant license for republication of books when refused by Proprietor after Author's death, see 5 and 6 Vict , c. 45, s. 5. As to Jurisdiction of Judicial Committee on the subject of Patents for In- ventions, see 5 and 6 WiU. IV., c. 83 ; 2 and 3 Vict., c. 67 ; 6 and 7 Vict., c. 38 ; 7 and 8 Vict, c. 69 ; 15 and 16 Vict, c. 83 ; 16 and 17 Vict., c. 115. As to Administration of Oath for purposes of Judicial Committee, 16 and 17 Vict., c 85. As to Appointment of Paid Members of Judicial Committee, see 34 and 35 Vict, c. 91. NOTE 2.-Court.-(§ 1, p. 1.) A Court is defined to be a place wherein .justice is judiciaUy administered (Co. Litt 58). And as by our exceUent constitution the sole executlre power of the laws is vested in the person of the SovereiKu, It avUI foUow that all Courts of Justice (which are the medium by which he administers the laws) are derived from the power of the Cro-wn. For whether created by Act of Pai'liament or lettei-s patent or subsisting by prescription— the only methods by which any Court of Judicature can eMSt (Co. Litt. 260), the King's consent in the two former i-^ expressly, and In the latter impliedly given. In all these Courts the Sovereign i,i supposed. In contemplation of law, to be always present, but as that is In fact Impossible, he Is there represented by his Judse..i, whoso power is only ;in emana- tion of the Koyal prerogative.— (3 Step. Black, 370, 5th Ed.) Digitized by Microsoft® 134 NOTES. NOTE 3. -Short Title.-(§ 1, P- 1.) The short title of the Act is the "Supreme Court of Judicature Act, 1873," but although this is short in comparison with its full title, the profession and public will probably still further shorten it by using the title employed in this work, "^he Judicature Act, 1873." NOTE 4.— Except any provision thereof which is declared to to take effect on the passing- of this Act.— (§ 2, p. l.) These exceptions are (I) section 27 on the subject of vacations (II) section 60 as to the establishment of district registries in the country for the Supreme Court, and (III; section 68 as to the making of Rules of Court. NOTE 5.— The High Court of Chancery of Eng-land.— (§ 3, p. 2.) This is the first-named Court absorbed by the Supreme Coiu^ of Judicature in England. Its name is derived from the Judge who presided there, the Lord Chancellor. The Court had two distinct tribunals, the one ordinary being a. Court of Common Law and of record, the other extraordinary being a Court of Equity and not of record. The jurisdictions of these Courts ^vill be found in the note, "The Jurisdiction of the High Court of Chancery." The history of the equitable jurisdiction is tersely given by HaJlam, as follows : — " The equitable jurisdiction, as it is called, of the Court of Chancery, appears to have been derived from that extensive judicial power which, in early times, the kings ordinary council had exercised. The Chancellor, as one of the highest officers of state, took a great share in the council's business ; and when it was not sitting, he had a Court of his own, with jurisdiction in many important matters, out of which process to compel appearance of parties might at any time emanate. It is not unlikely, therefore^ that redress, in matters beyond the legaJ province of the Chancellor, was occasionally given through the paramount authority of this Conrt. We find the council and the Chancery named together in many remonstrances of the Commons against this interference with private rights, from the time of Richard II. to that of Henry VI. It was probably in the former reign that th6 Chancellor began to establish systematically his peculiar restraining jurisdiction. This originated in the practice of f eoffeements to uses, by which the feoft'ee, who had legal seisin of the land, stood bound by private engagement to suffer another, called the cestui que use, to eiyoy its use and possession. Such fiduciary estates were well known to the Roman jurists, "but inconsistent with the feudal genius of our law. The Courts of Justice gave no redress, if the feoffee to uses, violated his trust by detaining the land. To remedy this, an Ecclesiastical Chancellor devised the writ of subpoena, com- pelling him to answer upon oath as to his trust. It was evidently necessary also to restrain him from proceeding, as he might do, to obtain possession ; and this gave rise to irgunctions, that is, prohibitions to sue at law, the violation of which was punishable by imprisonment as a contempt of Court. Other instances of breach of trust occurred in personal contracts, and others wherein, without any trust, there was a wrong committed beyond the competence of the Courts of law to redress, to all which the process of subpoena was made applicable. " This extension of a novel jurisdiction was paitly owing to a fundamental principle of our common law, that a defendant cannot be examined, so that, if no witness or written instrument could be produced to prove a demand, the plaintiff was wholly debarred of justice ; but m a still greater degree to a strange narrowness and scrupulosity of the judges, who, feai-ful of quitting the letter of their precedents, even mth the clearest analogies to guide them, repelled so many just suits, and set up rules of so much hardship, that men were thankful to embrace the relief held out by a tribunal acting in a more rational spirit. This eiTor the common lawyers began to discover, in time to resume a. great part of their jurisdiction in matters of contract, which would other- wise have escaped from tliem. They made, too, and apparently successful effort to recover their exclusive authority over real property, lay obtaining a statute for turning uses into possession ; that is, for annihilating the fictitious estate of the feofee to uses, and vesting the legal as well as equi^ble possession in the cestui que use. But this victory, if I may use such an expression, since Digitized by Microsoft® HIGH court;' of chancery of ENGLAND. I35 it would have freed them in a most important point from the Chancellor's control, they threw away by one of those timid and narrow constructions which had ab^ady turned bo much to their, prejudice and the permitted trust-estatea, by the introduction of a few more words into a conveyance to maintain their ground contra-distinguished from the legal seisin, under the protection and giubrantee as before, of the Courts of Equity."— [Hallam's Const. Hist, of Eng., chap. VI., p. 246] The principal Statutes in connection with the Court of Chancery are as follows : — 1.— Generally. As to damages on untrue suggestion in Court, see 17 Richd. II, c. 6. As to subpoena for appearance not to issue tUl after bill filed, &c., see 4 and 5 Ann, c. 3. As to transfer, Ac, by Court of Stock or East India Stock, without making Bajik of England a party, see 39 and 40 Geo. III., c. 36. As to issue of distringas, or of restraining order by Court to restrain transfer of stock, shares, &c., see 5 Yict., c. 5. As to process for enforcing orders of Court in Court of Chancery in Ireland, and vice rersa, see 41 Geo. III., c. 90. As to taking bills pro confesso in court, entering appearance for defendant, suit against person with privilege of Parliament and process of contempt, see II Geo. IV. and 1 Will. IV., c. 36 ; 2 and 3 Will. IV., c. 58 ; 23 and 24 Vict., c. 149. As to purchase of land, substitution of Court of Chancery of County Palatine . of Lancashire in certain cases for Court of Chancery, see 13 and 14 Vict., c. 43, s. 12 ; 17 and 18 Vict., c. 82, s. 13. As to payment of legacy or residuary personalty by personal representative into Goiirt of Chancery where legatee, infant, or absent, see 36 Geo. 3, c. 62, s. 32. As to payment by majority of trustees of trust money, stocks, &c., into Court of Chancery and order of Court thereon, see 10 and 11 Vict., c. 96 ; 12 and 13 Vict., c. 74. As to transfer by Court of Chancery of property or rights vested in trustee, pei^onal representative, or mortgagee, under disability, lunatic, unknown, out of jurisdiction, refuang to act, c. 71. As to general rules of County Court in Admiralty cases by assessor of Court of Passage in Liverpool, see 32 and 33 Vict., c. 51, s. 6. As to effect and execution of decree of County Court in Admiralty cases, see 31 and 32 Vict., c. 71. As to registry of judgments of County Court in Admiralty cases, see 31 and 32 Vict., c. 71. As to amount of costs limited in case of Admiralty Court, or inferior Court, ■which may be brouglit in County Coui-t, see 31 and 32 Vict., c, 71. As to costs in proceedings by or against Admiralty, see 28 and 29 Vict., c. 124 ; 31 and 32 Vict., c. 78. As to appeals to judicial committee from Ecclesiastical and Admiralty Courts, Bee 2 and 3 Will. IV., o. 92 ; 3 and 4 Vict., c. 65, s. 7 ; 3 and 4 Vict., c. 66, s. 4 ; 6 and 7 Vict., c. 38 ; 24 and 25 Vict., c. 10 ; 27 and 28 Vict., c. 25. As to appeals to judicial committee from Admiralty Court and making of general orders by judicial committee in prize causes, see 27 and 28 Vict., c. 25. As to estabUslmiient of district registry of High Court of Admiralty in Liver- pool, see 33 and .34 Vict., c. 45. As to rewards to royal navy, for attacking pirates, and inquiry and returns by Admiralty and Vice-Admiralty Courts, and salvage on British property in posses- sion of piracy, see 13 and 14 Vict., c. S». As to regulations as to pre-emption of prize by Admiralty, prize salvage, prize bounty, ransom of ship, &c., and convoy and orders in Council respecting prize, see 27 and 28 Vict., c. 25. As to regulations as to sending papers to Admiralty, taking eflfects out of prize, breaking bulk in, embezzling, ill-using persons on board ship, seized, taking, or restoring by collusion, &c., see 29 and 30 Vict., c. 109, s. 40. As to illegal prize, dealings with and restoration of prize by Court of Admiralty, see 33 and 34 Vict., c. 90, s. 14, &c. As to appointment of commissioner to administer oaths in Admiralty Court, see 17 and 18 Vict., c. 78, s. 4. As to salary and pension to Judge of Vice- Admiralty Prize Court, see 27 and 28 Vict., 0. 25, s. XL NOTE lO.— The Court of Prol)ate.-<§ 3, p. 2.) The Court of Probate was a tribunal recently established by 20 and 21 Vict., c. 77, amended by 21 and 22 Vict., c. 95, to which the jurisdiction of the Ecclesiastical Courts in testamentary matters was transferred. Its jurisdiction will be found in the note, " The Jurisdiction of the Court of Probate." The principal Statutes in connectiou with the Court of Probate are as follows : — As to transfer to Crown of testamentary jurisdiction of Ecclesiastical Courts, see 20 and 21 Vict., c. 77. As to jurisdiction and powers of Court, see 20 and 21 Vict., c. 77 : 21 and 22 Vict., c. 95. As to Judge, Registrars, District Registrars, and Officers of Court, see 20 and 21 Vict., c. 77 ; 21 and 22 Vict., c. 96. As to pension of Judge of Courtj see 34 and 35 Vict., c. 91, s. 1. As to taking oaths and affidavits for Court in and out of England, and Commissioners tlierefor, see 20 and 21 Vict., c. 77, s. 27, &c. ; 21 and 22 Vict., c. 95, s. 32, &c. As to practice and procedure in Court and appeal from Court and examination of witnesses in Court, see 20 and 21 Vict., c. 77 ; 26 and 27 Vict., c. 57. As to remittal of cause to County Court, see 20 and 21 Vict., c. 77 : ss. 55-60 ; 21 and 22 Vict., c. 95, s. 10, &e. As to who to practice before Court, see 20 and 21 Vict., c. 77 : 21 and 22 Vict., c. 95. As to fees in Court payable by stamps and account, and application thereof, see 20 and 21 Vict., c. 77 ; 21 and 22 Vict., o. 95 ; 30 and 31 Vict., c. 122. As to fees in Court payable by stamps in district registries, see 23 and 24 Vict., c. Ill, s. 23. As to sittings of Judge of Court in Chambers, see 21 and 22 Vict., c. 95. Digitized by Microsoft® COURT FOR DIVORCE AND MATRIMONIAL CAUSES. I45 As to Judge of Court, alaO Judge of the Admiralty Court, see 20 and 21 Viet.. «. 77, 9. 10. As to a building for Court of Probate, see 22 and 23 Vict., a 16 ; 25 and 26 Vict., 0. 74. .As to grant of administration through registrar of County Court, where estate does not exceed £100, see 36 and 37 vlct., 0. 52. NOTE 11.— The Court for Divorce and Uatrimoiilal Causes.— (§ 3, p. 2.) Tliis Court was a tribunal established in January, 1858, by 20 and 21 Vict.,, c 85, amended by the acts which will be found stated below. Its jurisdiction will be found in the note, "The Jurisdiction of the Court of Divorce and Matrimonial Causes.." The principal statutes in connection with this Court are as follows : — As to constitution and jurisdiction and sittings of Court and Judges, Officers, &e.j of Court, see 20 and 21 Vict., c. 85 ; S and 23 Vict., c. 61 ; 23 and 24 Vict., c. 144. As to pension of Judge of Court, see 34 and 35 Vict., c. 91, s. 1. As to transfer to court of jurisdiction of all Ecclesiastical Courts or persons in matters matrimonial, see 20 and 21 Vict., c. 85. As to powers of court and appeal from judge ordinary of court, see 20 and 21 Vict., c. 85 ; 23 and 24 Vict., c. 144. ■ As to powers of Court and appeal from judge sitting in chambers, see 21 and 22 Vict., c. 108. As to practitioners before Court, see 20 and 21 Vict., c. 85 ; 21 and 22 Vict., c. 108. As to proceedings in Court for judicial separation and eSfect thereof, see 20 and 21 Vict., c. 85 ; 21 and 22 Vict., c 108. As to proceedings in Court for judicial restitution of conjugal rights, see 20 and 21 Vict., c. 85 : 21 and 22 Vict., c. 108. As to proceedings in Court for judicial and effect of dissolution of marriage and damages from adulterer, and intervention of Queen's Proctor and others, see 20 and 21 Vict., c. 85 ; 21 and ^ Vict., c. 108 ; 23 and 24 Vict., c. 144 ; 29 and 30 Vict., c. 32. As to practice and proceedings in Court, see 20 and 21 Vict., c. 85 ; 21 and 22 Vict., c. 108 : 23 and 24 Vict., c. 144. As to taking oaths and af&davits for Court, in and out of England, and Com- missioners therefor, see 20 and 21 Vict., c. 85 ; 21 and 22 Vict., c. 108. As to regulations as to alimony, see 20 and 2] Vict., c. 85 ; 29 and 30 Vic^, c. 32. As to orders by Court as to custody, maintenance, &c,, of children of marriage, see 20 and 21 Vict., c. 85, s. 35 : 22 and 23 Vict., c. 61. As to orders by Court as to settlement of property, see 20 and 21 Vict., o. 85, a 45 ; 22 and 23 Vict., c. 61 ; 23 and 24 Vict., c. 144. As to evidence in Court and attendance, &c., and examination of witnesses, see 20 and 21 Vict., c. 85. As to competency of husband or wife to give evidence in Court, see 20 and 2Z. Vict., c. 85, s. 43 ; 22 and 23 Vict., 0. 61 ; 32 and 33 Vict., c. 68. As to fees in Court payable by -stamps, see 20 and 21 Vict., c. 85, ss. 54, 60, 61, As to powers of Registrars of Court in Chambers, see 21 and 22 Vict., c. 108. As to appeal from Court to House of Lords, see 31 and 32 Vict., c. 77. As to taxation of costs in Court, see 21 and 22 Vict., c._ 108. As to obtaining declaration of legitimacy or of a marriage being valid, or of being a British subject, from Court with appeal to Housd of Lords, ^e.e 21 aal. 22 Vict., c. 93 ; 22 and 23 Vict., c. 61t As to marriage of divorced persons, see 20 and 21 Vict., c. 85, s. 57, &e. ; 31 and 32 Vict., c. 77. As to clergymen not bound to solemnize marriage of guilty party to divorce, see 20 and 21 Vict., c. 85, s. 57. As to proceedings for and effect of nullity of marriage, and intervention of Queen's Proctor and others, see .36 and 37 Vict., c. 31. As to when husband and wife of parties competent to be witness in any pro- ceeding in consaquenoe of adultery, see 32 and 33 Vict, c 68, s. 3. Digitized by Microsoft® • ^ 146 NOTES. NOTE 12.— The London Court of Bankruptcy.— (5 S, p. i.) The principal Stetutes in connection with tliis Court are as followa : — As to London and Country Courts, comptroller in bankruptcy, registrars and iiiferior officers, solicitors practising before Court, appeal from and execution of process and decrees of Court in England, Scotland, or Ireland, and general rules of Court, see 32 and 33 Vict., c. 71. ' As to transfer of funds of Court to Commissioners for Reduction of National- Debt, and payment of salaries and pension of officers of old Court, see 32 and 33 Vict., c. 91. As to salaries of Judge charged on Consolidated Fund, and of officers on Totes, see 32 and 33 Vict., c. 71 ; 32 and 33 Vict., c. 91. As to pension to officers of superior Courts or in Bankruptcy or Lunacy, see 29 and 30 Vict., c. 68 ; 32 and 33 Vict., c. 91. As to appointment of officers of Court, see 32 and 33 Vict., c. 71 ; 32 and 33 Vict., c. 91. As to winding up of insolvency business in London and County Courts, see 32 and 33 Vict., c. 83. As to fees and stamps in Court, and annua.1 account of receipts and expendi- ture, see 32 and 33 Vict., c. 71 ; 32 and 33 Vict., c. 91. As to power of Court to order prosecution of Bankrupt, see 32 and 33 Vict., c 62, s. 16, &C. As to Courts in Scotland and Ireland, and Colonies auxiliary to each other, see 32 and 33 Vict., c 71, s. 74. As to arrest of debtor about to abscond, ifec, pending proceedings in Bank- ruptcy, see 32 and 33 Vict., c. 71 s. 86 ; 33 and 34 Vict., c. 76. - As to jurisdiction of Chancery Judge in Chambers, District Courts of Bank- ruptcy, and County Court, as to Charities, see 16 and 17 Vict., c. 137 ; 23 and 24 Vict., c. 136. As to decree and order of Bankruptcy Court to operate as judgment, see 32 and 33 Vict., c. 71. As to limitations of time for impeachment of sale by bankrupt, see 2 and 3 Vict., c. 11, s. 13. ' NOTE 13.-The Judges. -<§ 5, p. 2.) The word judge is derived from the Latin judex, through the French ;i^«. The Roman judex answered nearly to a judge sitting at Nisi Prius ; judica resembling our special jurymen. The principal statutes relating to the judges are as follows : — As to the commencement, accruer, and payment of salaries of judges, see 35 and 36 Vict., c. 51. As to duties of the judges of the Superior Courts, see 20 Edw. 111., c. 1. As to holding office during good behaviour, but removable on address from Parliament, see 12 and 13 WiU. IIL, c. 2 ; 1 Geo, III., c. 23. As to salaries, fees, and pensions of judges of Common Law Courts, see' 1 Geo. 111., c. 23 ; 39 Geo. III., c. 110, s. 7 ; 53 Geo. III., c. 153 : 6 Geo. IV., c. 82 ; 6 Geo. IV., c. 83 ; 6 Geo. IV., c. 84 ; 11 Geo. IV., and 1 WiU. IV., c. 70 ; 2 and 3 Will. IV., 0. 116 ; 14 and 15 Vict., c. 41 ; 35 and 36 Vict., c. 51. As to appointment of judges as members of Judicial Committee of Privy Council, see 34 and 35 Vict., c. 91. As to powers of judges to make rules and alter forms of proceedings, see 11 Geo. IV., and 1 WiU. IV., c. 70 ; 1 and 2 WiU. IV., c. 58 ; 2 and 3 WUl. IV., c. 39 ; 3 and 4 WUl. IV., c. 42 ; 15 and 16 Vict., c. 78, s. 223 ; 17 and 18 Vict., c. 125, s. 97 ; 19 and 20 Vict, c 97; 23 and 24 Vict., c 126. As to powers of judges to make rules as to Irish and Scotch judgments, and security for costs, see 31 and 32 Vict., c. 54. As to powers of judges to make rules as to arrest of defendant in action, see 32 and 33 Vict., c. 62. As to powers of judges to make rules for carrying out Juries Act, see 33 and 34 Vict., c. 77, s. 24. As to power of existing judges to make rules for regulation of sittings of, circuits, procedure, &c., in Supreme Court of Judicature, see 36 and 37 Vtct. c. ^6, B. 60. Digitized by Microsoft® THE LORD CHANCELLOR. 1 47 As to making of ordinances by Guild or Corpoiation against common profit of people, and approval of Corporatioa by Chancellor and Judges, see 19 Hen. VII., c. 7. ' As to eflfect of demise of the Crown on Judges, see 1 Geo. III., c. 23. As to trial by judges at Nisi Prius, see 13 Edwd. I., c. 30 ; 27 Edwd. L, c 4 : 12 Edwd. IL, c. 3 ; 2 Edwd. III., c. 16 ; 14 Edwd. HI., stat I., c. 16 ; 42 Edwd, III., c. 11 ; 18 Bliz., e. 12 ; 12 Geo. L. c. 31 ; 1 Geo. IV., c. 21 : 15 and 16 Vict.. c. 76 ; 17 and 18 Vict., c. 125 ; 33 and 34 Vict., c. 6, s. 6. As to attendance at Quarter Sessions of the Judges when Justices of the Peace, see 12 Ric. IL, c. 10. As to form of oath by judges, see 31 and 32 Vict., c. 72 ; 34 and 35 Vict., «. 48, s. 2. As to places in Parliament of certain judges, see 31 Hen. VIIL. c. 10. As to oonstitutiOn of Suprdme (jourt of J udicature and transfer to such Court of Judges and jurisdiction of Existing Courts (on 2nd November, 1874), see 36 and 37 Vict., c. 66 ; see also notes, " The Lord Chancellor ;" *' The Master of the Rolls;" "The High Court of Chancery of England;" "The Court of Queens Bench;" "The Court of Common Pleas;" "The Court of Exchequer;" "The High Court of Admiralty ;" " The Court of Probate ." " The Court for Divorce and Matrimonial Causes ;" "The Loudon Court of Bankruptcy." NOTE. 14.— The Lord Chancellor.— (§ 5, p. 2.) The word chancellor (Latin canceUarius) is derived either (l^ from the act of cancelling the King's letters patent whe;n granted contrary to law, or (ii) from the little bars (caneclli) for fencing off^ the multitude from the recess or chancel, in which sat the door-keeper or usher of the Court of Justice. — [Cam. Ch. L] The office has existed in Englap*i from the most remote antiquity. The almost fabulous British King Arthur is said to have appointed a Chancellor. — [Mirror of Justices]. The original duty of the Chancellor was to frame writs for the King — appealed to in early times for justice, gi-ants of dignities, of offices, and of lands made by the King, These grams were veriHed by the Great Seal, th3 custody of which was given to the Chancellor. The Chancellor was at first his Confessor, and hence became the "keeper of the King's conscience." In addition to the Common Law and Equitable Jurisdiction obtained by ambitious Chancellors, he can grant a writ of Habeas Corpus either in term or in vacation (Crawley's case 2 Swanst. 6), and writs of prohibitions (per Lord Redesdale 2 sch. and Lef. 136 ; see 4 Inst 81 ; 2 P. Wms. 202), and writ of ne exeat regno (De Carriere V. Calonne 4 Ves 577. See Beames writ ne exeat regno and Beames Chancery orders, p. 39), and writ de coronatore eligendo (F. N. B. 163. 1 Black 347. ) He also decides in the Court of Chancery questions arising as to the validity of the election (re Coroner Co. Stafford 2 Russ. 475), and he may remove him for sufficient reasons from his office (ex parte Pamell 1 Jac. and W. 451 ; ex parte Pasley 3 Drur. and War. 34. ) He is ex officio Prolocutor or Speaker of the House of Lords whether he be a peer or not. Without any commission or express authority for the poi-pose he always presides there when present. This privilege is said to belong to him by prescription, and he hns enjoyed it many centuries, although in the reigns of Richard I, John, and Henry III (within time of legal memory), it was exercised by the Chief Justiciary. Tlie Cro^vn may, by commission, name others to pre- side in the House of Lords in the absence of the Chancellor ; and no Speaker appointed by the Crown being present, the Lords, of their own authority, may choose one of themselves to Act as Speaker— which the^ have often done of late years in hearing appeals, but all these Speakers are immediately superseded when the Chancellor enters the House. (Camp. L. C. 1. 16). Lord Chief Baron Gilbert suggests that the Chancellor sits on the Woolsack as Steward of the King's Court Baron, and draws an ingenious but fanciful parallel between the Court Baron of a Manor and the House of Lords (Gilb Ev. 42). By an old standing order of the House of Lords his constant attendance there is required. By 25 Edwd. III., c. 2, to stay him in the execution of his office is high treason. If a commoner he cannot speak or vote. From darly times he was Digitized by Microsoft® I4S NOTSS. nsually employed to address the two Houses on the meeting of the new TiaSm- ment in the presence of the King. On the trial of a peer for treason or felony, the Lord High Steward presides, but he has generally been nominated to that office. Since the institution of Justices of the Peace in the reign of Edwd. III., h» has had the power of appointing and removing them (1 Edwd. III., stat. Z, c. 16; 28 Hen. VI., c. II.) He, however, generally takes the advice of the Lord Lieutenant or custos rotu lorum in each county, but when any extraordinai? case arises, it is his duty and bis practise to act upon- his own judgment. See also notes, "Position of Lord Chancellor ;" " Precedence ;" " Salary of th» Lord Chancellor ;" "The Oaths to be taken by the Lord Chancellor." The principal statutes relen-ing to the Lord Chancellor are as follows : — As to his pension, see 2 and 3 Will. IV., c. Ill ; 32 and 33 Vict., c. 91. As to his purse bearer and secretary of presentations, see 3 and 4 Will IV., 0. 84 ; 32 and 33 Vict., c. 91. As to salaries and fees of his secretaries and officers, see 15 and 16 Vict., c. 87 ; 32 and 33 Vict., c. 91. As to salary and payment of his fees to suitors' funds, see 14 and 15 Vict., c. 83 ; .15 and 16 Vict., c. 87 ; 32 and 33 Vict., c. 91. As to delivery by Lord Chancellor of judgment after resignation, see 15 and 16 Vict., c. 80. As to sale of Advowson in gift of Lord Chancellor and augmentation out of proceeds, see 26 and 27 Vict., c. 120. As to appointment by Lord Chancellor of Commissioners to enquire into gifts to Cliarities, see 43 Eliz., c. 4. As to ordinances by Corporation, making of, against common profit of people, &a., and approval of by Lord Chancellor, see 19 Hen. VII., c. 7. As to the place in Parliament of the Lord Chancellor, see 31 Hen. VIII., e. 10. As to nomination of Sheriffs by Lord ChancellM* and others on the morrow of St. Martin, 9 Edwd. II., stat. 2 ; 14 Edward III., stat. 1, 0. 7; 21 Hen. VIII., c. 20 ; 24 Geo. II., c. 48, s. 12. See also notes on "Judges," "The High Court of Chancery of England," " Great Seal of the United Kingdom," " Lunatics," " Sheriff." NOTE 15.— The Lord Chief Justice of Eng-land.— (§ 5, p. 2.) The office of Chief Justice, or Chief Justiciar, was introduced into England by William the Conqueror, from Normandy, where it had long existed. Of the two names, "Justice" and "Justiciar," we have tliia account by Spelman: "Justitia al. Justitiarius. Prior vox in juris nostri foruMilis, solum-modo videtur usitata, usque ad setatem Henrici .3. altera jam se efferente, hieo paulatim disparuit : sed inde hodie in vemaculo et juris annalibus GaUico- Nonnanicis *a' vel 'vn Justice^ dicimus, non ^Justicer.*" In Scotland, where this office was introduced, along with almost every other which existed in England underthe Norman King, the word Jitstitiarius prevailed, and hence we now have the "Court of Justiciary." (See Campbell's "laves of the Chan- cellors, vol. 1. p. 5.) The functions of such an officer would have ill accorded with the notions of our Anglo-Saxon ancestors, who had a great antipathy to centralisation, and prided themselves upon enjoying the rights and the advan- tages of self-government. The shires being parcelled into hundreds, and other sub-divisions, each of these had a court, in which suits, both civil and criminal, might be commenced. A more exteiisive jurisdiction was exercised by the County Court, a tribunal of high dignity, over wliich the Bishop, and' the Earl, or Alderman, presided jointly. Cases of impor^ce and difficulty were occasionally brought by appeal before the Witenagemote, and here they were disposed of by the voice of the majority of those who constituted this assembly. We do find, in the Anglo-Saxon records, a notice of "Totius AnglicB Aldermannus," but such a creation seems to have taken place only on rare emergencies, aud we have no certain account of the duties intousted to the person so designated. (Dugd. Or. Jur. ch. VII., Mad. Ex. oh. 1, SpeL Gloss. " Justitia^" Lord Coke's 2nd Inst., ch. VII.) In Normandy the inter- ference of the supreme government was much more active than in England, and there existed an officer caUed Chief Joaticiar, who superintended tl>» Digitized by Microsoft® THE MASTER OF THE ROLLS. 1 49 ftdmlnlstration of justice over the whole dukedom, and on whom, according to the manners of the age, both military and civil powers of gi'eat magnitude were conferred. It is curious to observe that, notwithstanding the sweeping change of laws and institution introduced at the conquest the characteristin difference between Frenchmen and Englishmen, in the management of local affairs, still exists after the lapse of so many centuries ; and that wliile with na parish vestries, town councils, and county sessions, are the organs of the petty confederated repubhcs into which England is parcelled out, — in France, whether the form of government be nominally monarchical or republican, no one can alter the direction of a road, build a bridge, or open a mine, without tbe authority of the "Ministredes Fonts et Ckaussees," In Ireland, there being much more Celtic than Anglo-Saxon blood, no self reliance is felt, and a disposi- tion prevails to throw everything upon the government.. Before William had entirely completed his subjugations of England, eager to introduce into it the laws and institutions of his own country, so favour- Able to princely prerogative, — while he separated the civil and ecclesiastical jurisdiction, and confined the County Court (from which the Bishop was banished) to the cognizance of petty suits, — preparatory to the establishment of the feudal systcmi in its utmost rigour, he constituted the office of Chief Justiciar. His plan was to have a grand central tribunal for the whole realm, which should not only be a Court of Appeal, but in which all causes of importance should originate and be finally decided. This was afterwards called Cmia Regis, and sometimes Aula Regis, because it assombled in the hall of the King's paLice. The great officers of state, the Constable, tlie Mareschal, the Seneschal, the Chamberlain, and the Treasurer, were the judges, and over them presided the grand Justiciar. "Next to the King himself, he was chief in power and authority, and when the King was beyond peas (wmch frequently happened), he governed the realm like a viceroy," (Madd. Exch. XI., where it is said, "he was wont to be styled Justicia Regis, Justiciarius Regis, and absolutely Justicia or Justiciarius ; aftenvards he was sometimes styled J'listiciarius Regis Anglice, probably to distinguish him from the King's Justiciar of Ireland, Normandy," Ac.) He was at all times the guardian of the public peace as Coroner-General (the Chief Justice of the King s ^ench ia still Chief Coroner of England), and he likewise had a control over the finances of the kingdom. (It is supposed to be a remnant of this power, that, upon the sudden death or resignation of the Chancellor of the Exchequer, the Chief Justice of the King's Bench did the formal duties of the office till a successor is appointed). In rank he had precedence of all the nobility, and his power wa3 greater than that of all other magistrates. (" Dignitate omnes regni proceres^ potestate omnes superabat inagistratus. " — Spel. Gloss, p. 331.) The administration of justice continued nearly on the same footing for eight reigns, extending over rather more than two centuries. Although, during the whole of this period, the Aula Regis was preserved, yet, for convenience, causes according to their different^atures, were gradually assigned to different com- mittees of It,— to which may be traced the Court of King's Bench, the Court of Common Pleas, the Court of Exchequer, and the Court of Chancery. A distinct tribunal for civU actions was rendered necessary, and was fixed at Westminster by the enactment of Magna Charta — " Communia placita non sequantur curiam nostram, sed teneantur m aliquo certo loco ;" but the suitors in other causes were long after obliged to resort alternately to York, Winchester, Gloucester, and other towns in which the King sojourned at different seasons of the year. At last a great legislator modelled our judicial institutions almost exactly in the fashion in which, after a lapse of six centuries, they presented themselves at the establishment of the Supreme Court of Judicature, showing a fixity unexampled in the history of any other nation. The Chief Justiciar was then considerably lowered in rank and power, but the identity of the office is to be distinctly, traced. — [Camp. Lives of the Chief Justices, voL 1, pp. 1-3.] KTOTE 16.— The IVEaster of the EoUs.-(§ 5, p. 2.) The judicial duties of the Court of Equity had been long in some measure shared by an officer of high rank, called the Master of the Rolls, originally appointed only for the superintendence of the writs and records appertaining to its common law department (4 Inst. 82), but accustomed also to sit on th» Digitized by Microsoft® 1 50 NOTES. Equity side as a separate though subordinate judge. The Master of the Rolls "was properly the chief of a body of officers, called the MasterB in Chancery^ of whom there had been until recently, ten others, including the Accountant General (4 Inst. 82 ; Smith's Commonw. bk. ii. c.12 ; 3 and4 WiU. IV., c. 94; 10 and 11 Vict. 60, 97). But subsequently by 15 and 16 Vict. c. 80, a. 59, these offices werb abolished with certain temporary reservations(I7and 18 Vict, c. 100; 23 and 24 Vict. c. 149, s. 1), and with a reservation also of the rights, duties, and privileges of the AeemmtoMt GemrtU. But now by 35 and 36 Vict. c. 44, s. 4, the office of Accountant General is abolished, and the Paymaster General exercises the powers and authorities of the former office. Concerning the authority of the Master of the Bolls to hear and determine causes, and his general power in the Court of Chancery, there were formerly divers questions and disputes very warmly agitated ; to quiet which, it was declared by 3 George II, c. 30, that all orders and decrees made by him, except such as by the course of the Court were appropriated to the Great Seal alone, shall be deemed valid, subject, never- theless, to be discharged or altered by the Lord Chancellor, and so as they shall not be enrolled till the same are signed by his lordship (3 HI. Comm. 450). And by the statute, 3 and 4 Will. IV., c. 94, s. 24, the Master of the Rolls was specially directed to hear motions, pleas, and demurrers as well as causes generally. Tne principal statutes relating to the Master of the Rolls, are as follows : — As to authority of orders, and decrees of Master of the Rolls, see 3 Geo. II, c. 30. As to pension of the Master of Rolls, see 39 Geo. III., c. 110 ; 53 Geo. III., c. 153 ; 6 Geo. IV., c. 84 ; 32 and 33 Vict., c. 91. As to ssStary of Master of the Rolls, see 7 WiU IV., and 1 Vict., c. 46 ; 14 and 15 Vict., c. 83 ; 32 and 33 Vict., c. 91. As to jurisdiction of Master of the Rolls, see 3 and 4 Will. IV., c. 94. As to lease of estate of Master of the Rolls for Judge s Chambers, see 6 and 7 Will. IV., c. 49 ; 7 Will IV and 1 Vict., c. 46. As to estate of Master of the Rolls vested in Crown, and as to regulation of fees and officers of Master of Bolls, see 7 Will IV., and 1 Vict., c. 46 ; 32 and 33 Vict., c. 91. As to superintendence of public records by Master of the Rolls, see 1 and 2 Vict., c. 94. See also notes on "Judges," "High Com-t of Chancery of England ;" "the salary of the Master of the Bolls ; " " the pension of the Master of the Rolls." NOTE 17-— The Lord Chief Justice of the Common Fleas.— (§ 6, p. 2.) The salary and pension of this Judge will be found stated in notes thereon i7\fra. NOTE 18.— The Lord Chief Baron of the Exchequer.— (§ 6, p. 2.) The salary and pension of this Judge \vill be found stated in notes thereon infra. NOTE 19 — The several Vice Chancellors of the Hig'h Court of Chancery.— (§ 5, p. 2.) The vast increase of business, the progress of which had been more particularly marked during the last half of the century, having at length become such as to render the antient force of the Court of Chancery wholly inadequate to the labours it had to perform, it was found necessary in the year 1813 {53 Geo. Ill, c. 24), to appoint another assistant under the title of Vice Chancellor of England ; and after the transfer to that Court in 1841 of t le Equity business of the Exchequer, two more Vice Chancellors were added to its judicial hst (5 Vict.c. 5, s. 19.) As to one of these Vice Chancellorships, the Act provides that nothing therein contained shall authorise the appointment of a successor. The appointment of a successor, however, was authorised by 14 and 15 Vict, c. 4, and that of another successor by 15 and 16 Vict, c, 80, ss. 52-58 (Step Black ' III, 426.) Digitized by Microsoft® LETTERS PATENT. 151 NOTE 20.— Tbe Jud^e of the Higrh. Court of Admiralty.— (§5, p. 2.) This Judge aat properly as the Deputy of the Lord High Admiral of England, while there was an officer of that description in use. By 20 and 21 Vict., c. 77, 8. 10, it is provided that upon the next vacancy in the office of Judge of the Admiralty Court or of Judge of the Court of I^obate, the two be united if Her' Majesty so thinks tit. And by 21 and 22 Vict., c. 95, s. 1, it is provided that the Judge of the Admiralty Court and the Judge of the Probate Court may sit for one another either in open Court or in Chambers. 'NOT'E 21.— Except such, if any, of the aforesaid Judges as shall be appointed ordinary Judges of the Court of Appeal.— C§ 5, p. 2.) By sec. 6, the first ordinary Judges, are to be : — 1. The two Lords Justices of Appeal in Chancery. 2. The four salaried Judges of the Judicial Conunittee of the Privy Council. 3. Such three other persons as Her Majesty may be pleased to appoint bj Letters Patent. NOTE. 22.— Letters Patent.— <§ 5, p. 3.) Letters Patent or Letters overt (Uteres patentes) are writings of the Queen sealed with the Great Seal of England. They are so-called because they are not sealed up, but open with the seal affixed and ready to be shown for con6nnation of the authority thereby given. The Great Seal is usually pendant at the bottom and the letters are for the most part directed or addressed by the Sovereign to all subjects of the realm. And therein they differ from certain other letters of the Sovereign sealed also with the Great Seal, but directed to particular persons and for particular purposes ; which, therefore, not being proper for public inspection^ are closed up and sealed on the outside, and are, thereupon, called writs close, literce clausce, and are recorded in the close rolls^ Grants or letters patent must first pass by bill; which is prepared by the Attorney and Solicitor General, in consequence of a warrant from the Crown ; and is then signed, that is, superscribed at the top with the Sovereign's own sign manual) and sealed with the privy signet, which is always in the custody of the ];Hincipal Secretary of State ; and then sometimes it immediately passes under the Great Seal, in which case the patent is subscribed) in these words, per ipsam reginam (2 Rep. 17 b.) Otherwise the course is to carry an extract of the bill to the keeper of the privy seal, who makes out a writ or warrant there- upon to the Chancery ; so that the sign manual is the wurrant to the privy seal, and the privy seal is the warrant to the Great Seal ; and in this last case the - patent is subscribed, per breve de privato sigillo (2 Rep. 17 b. ; 2 Inst. 555). But there are some grants which only pass through certain offices as the Admiralty or Treasury, in consequence of a sign manual, without the con- firmation of either the sigTiet, the great or the privy seal (see 3 and 4 Edwd. VI,, c. 4 ; 13 Eliz., c. 6). NOTE 23.— Precedence.— (§ 5, p. 3.) The precedence of the Lord Chancellor is fixed by 31 Henry VIII., c. 10, s. 4, as follows : — ^And forasmuche as suche other psonage wch nowe have and here- after shall happen to have other great offices of the realme, that is to saye, the offices of the Lorde ChaunceUour, the Lorde Tresorer, the Lorde President of the Kinge most Honorable Counsell, the Lorde Privey Seale, the Great Chamberleyn of Englande, the Constable of Englande, the Marciall of Englande, the Lorde Admyrall, the Graimde Maister, or Lorde Stewarde of the Kinge most Honorable Housholde, the Kiuges Chamberleyn, and the Kinges Secretarie, bathe not heretofore bene appointed and ordered for the placinge and sittin^e in the Kinge moste Highe Coiurte of Parliament, by reason of their offices, it is therefore nowe ordeyned and enacted by thauctoritie aforesaide, that the Lorde ChaunceUour, the Lorde Treasourer, the Lorde Precident of the Kinge Counsell, and the Lorde Privey Seale, beinge of the degre of Barons of the Parliament, or above, shall sytt and be placed, aawell in this p'aent Pairliament as in all other Digitized by Microsoft® Ija NOTES. Farliamente hereafter, to be holden, on the lylte syde of the salde Parliiunent Chamber on the higher parte of the fourme of the same side above all Dukes, excepte onlie suche as shall happen to be the Kinges sonne, the Kinges brother, the Kinges uncle, the Kinges nephewe, or the Kinges brothers or sisters sonnes. The Chief Justice of the Queen's Bench, the Master of the Rolls, the CMef Justice of the Common Pleas, and the Chief Baron of the Exchequer, appear in this list in the above order, next after Barons' eldest sons. They are entitled to this rank by Letters Patent 9, 10, and 14, Jao. 1. (see Seld. Tit. of Hon. II., 6, 46). Next following these Judges are— The Two Lords Justices of Appeal in Chancery by 14 and 16 Vict., c. 83 ; then the Three 'Vice-Chancellors by 53 Geo. , III., c. 24, and 5 Vict., c. 5, s. 25, and then the Pusine Judges and Barons. NOTE 24.— Superior Courts of Common La-w.— (§ 5, p. 3.) The principal statutes relating to the Superior Courts of Common Law at ■Westminster, are as follows : — As to practice, pleadings, and proceedings in Court, see 4 and 5 Ann, c. 3 ; 1 'VVUl IV., c. 7 ; 3 and 4 Will. IV., c. 42 ; 15 and 16 Vict., c. 76, s. 27 ; 17 and 18 Vict., c, 125 ; 23 and 24 Vict., c. 126. As to appeal from Court to Exchequer Chambers, see 11 Geo. IV., and 1 WilL IV., c. 70. As to abolition of real actions in Court, see 3 and 4 Will. IV., u. 27, d. 36 ; 23 and 21 Vict., c. 126, s. 26, As to fees of court, and accounts by officers of court, and compensations oa abolition of office, see 3 Geo. IV., c. 69; 11 Geo. IV., and 1 Will. IV., c. 58: 1 and 2 Will. IV., c. 35 ; 7 WiU. IV., and 1 Vict., c. 30 ; 15 and 16 Vict., c. 73; 28 and 29 Vict., c. 45 ; 29 and 30 Vict., c. 101 ; 30 and 31 Vict., c. 122 : 32 and 33 Vict., c. 18. As to payment of fees of Court by stamps, see 28 and 29 Vict., c. 45. As to aimual account of fees and expenditure of Superior Court, see 29 and 30 Vict., c. 101 ;: and 31 Vict., c. 122 ; 32 and 33 Vict., c. 91. As to times of Sittmg of Court, see 11 Geo. IV., and 1 Will. IV., c. 70 : 17 and 18 Vict., c. 125, s. 95. As to power of Court to sit in two divisions at one time in Banc, see 33 and 34 Vict., c. 6. As to jurisdiction of Court extended to Cheshire and Wales, see 11 Geo. IV., and 1 Wm. IV.^ c. 70. As to examination of witnesses for Court abroad upon interrogatories and otherwise, see 1 Will. IV., c. 22. As to special case in Court, see 3 and 4 WilL IV., c. 42 ; 17 and 18 Vict., c. 125. As to abolition of offices in Court, see 7 WilL IV., and 1 Vict., c. 30 ; 8 and 9 Vict., c. 34. As to payment of money into Court, see 7 WilL IV., and 1 Vict., c. 30 : 15 and 16 Vict., c. 76, ss. 70-3 ; 23 and 24 Vict., c. 126. As to power of judge of one court to make, on circuit, order in any cause as if in own court, see 1 Geo. IV., c. 55. As to power of Justices of Assize to take inquisitions of all pleas in Courts of Queens Bench, Common Pleas, or Exchequer, see 13 Edwd. I. tStat West. 2). c. 30 ; 2 and 3 Vict., c. 22. As to power of judge of one court, as to proceedings in other courts, and as to certiorari, habeas corpus, bail, estreats, crown debts, &c., see 1 and 2 Vict., c. 45. As to power of judge of one court to sit and assist in another court, see 33 and 34 Vict., c. 6. As to seahng of writs of Court, see 8 and 9 Vict., c. 34. As to number, appointment, salaries, Ac, of associates and officers in court, and prohibition on taking gratuities, paying money, for appointment, &c., see 15 and 16 Vict., c. 73 ; 17 and 18 Vict., c. 94 ; 22 Vict., c. 26 ; 30 and 31 Vict, As to Clerk of Assize not to be Counsel on Circuit, see 33 Hen. VIII., c. 24. Aa to salary of Clerk of Assize in lieu of f^es, both as Clerk of ' ' Digitized by Microsoft® SUPERIOR COURTS OF COMMON LAW. 1 53 araociiite on circuit, and Clerk of the Crown, see 15 and 16 Vict., c. 73 : IS and 19 Vict., c. 126 : 26 and 27 Vict., c. 122. As to qualiti cation for office of Clerk of Assize, and regulatioii as to his fees, see 32 and 33 Vict., c. 89. As to pension to officers of Superior Courts, or in bankruptcy or lunacy, see 29 and 30 Vict., c. 68 ; 32 and 33 Vxct., c. i)l. As to trial of issues in court, witiiout formal pleadings and proceedings thereon, see 15 and 16 Vict., c. 76, ss. 42-48. As to language and form of pleadings in Court, see 15 and 16 Vict., t. 76, ss. 49-91. As to use of English language in Court, and in ^vTits, indictments, &c., see 27 Hen. VIII., c. 26 ; 4 Geo. II., c. 26 ; 5 Geo. II., c. 27. As to use of English language in Court, and pleadings, orders, &c., to be in common hand, see 6 Geo. II., c. 14. As to writ of Inquiry to assess damages .before Sheriff, see 8 and 9 Will. III., c. 11 ; 3 and 4 WiU. IV., c. 42, s. 16 ; 2 and 3 Vict , c. 16, s. 16. As to ascertainment of damages by Master of Court, instead of under writ of inquiry, see 15 and 16 Vict., c. 76, s. 94. As to notice of trial and countermand by Court, see 15 and 16 Vict., c. 76, ss, 97-101. As to trial of cause on plaintiff not proceeding in Court, see 15 and 16 Vict., c. 76, s. 101. As to trial of question of fact by judge of court, see 17 and 18 Vict., c. 125. As to interrogatories to Court, and examination of parties to action, see 17 and 18 Vict., c. 125. As to discrediting witnesses at trial before Court, cross-examination as to previous statement in writing, and examination of disputed handwriting, see 17 and 18 Vict., c. 125. As to rule for new trial in Court, or to enter a verdict or nonsuit, see 17 and 18 Vict., c. 125. As to inspection of documents or property by party, Jury, &c., in Court, see 17 and 18 Vict., 0. 125. As to equitable pleas and replications in Court, see 17 and 18 Vict., c. 125, ss. 83-86. As to mode of appearance in Court, and judgment in default of, see 15 and 16 Vict., c. 76, S3. 27-33. As to Rules as to appearance of defendant in Court, see 13 Cha. II., st. 2, c. 2 ; 6 Geo. II., c. 27 ; 15 and 16 Vict., c. 76, ss. 24-33. As to officers of common law side of Court of Exchequer, see 2 and 3 Will. IV., c. 110. As to proceedings in Court in lieu of feigned issue, see 8 and 9 Vict., u. 109, S.19. As to summoning, &c., of special juries for superior Courts in London and Middlesex, see 33 and 34 Vict., c. 77, ss. 16-18. As to appeal from Justice of the Peace in summary proceeding by special case to superior Court, see 20 and 21 Vict., c. 43. As to affidavit by Justice of the Peace in superior Court of grounds of decision when questioned, see .34 and 35 Vict., c. 26. As to ascertainment in one part of United Kingdom of law administered in another part by sending special case to Court, see 22 and 23 Vict., c. 63. As to appointment of llpstaff of Court of Chancery and Common Law, and security by Tipstaff, see 25 and 26 Vict., e. 104. As to writs, none toucliing the common law, to go forth under any of the petty seal, see 28 Edw. I. (art. sup. cart), c. 6. As to sergeant or pleader committing deceit in Court, see 3 Edw. I., c. 29. As to writs to remove cause from inferior to superior Courts, regulated and restrained, see 43 Eliz., c. 5 ; 21 J.i. I., c. 23 ; 12 Geo. L, c. 29 ; 19 Geo. IIL, 0. 70 ; 7 and 8 Geo. IV., c. 71 ; 8 and 9 Vict., c. 127. As to removal of Replevin for lord's distress to a higher tourt by writ of recordari, see 13 Edw. I (Slat. West. 2.), c. 2. As to actions of Replevin in superior courts, see 19 and 20 Vict., c 108, s. 05, &c. ; 23 and 24 Vict., c. 126. As to abolition of Hui Chamber and other courts, see 16 Cha. L, e. 18. Digitized by Microsoft® 154 NOTES. As to a/bolition of rations inferior Courts, see 12 Cha. II., c. 24; 9 and 10 Vict., 0. 95 ; 12 and 13 Vict., c. 101. As to remission of actions by writ of Procedences to inferior Courts, see 21 Ja. II., c. 23. As to inferior and local Courts of Record, districts, judges, fees, suitor money judgment, witnesses, afBdavits, and execution, &c., see 7 and 8 Vict., c. iJ6 ; 8 and 9 Vict., c. 127 ; 35 and 36 Vict., c. 86. As to seal of Courts and forgery thereof, and of process of, see 7 and 8 Vict., c. 19. As to powers of Court to award imprisonment in lieu of transportation, see 9 and 10 Vict., c. 24. As to imprisonment by judge of superior county or inferior court of person having means and refusing to pay Judgment Debt, see 32 and 33 Vict. - c. 62. As to compensation to officers of certain courts, see 8 and 9 Vict., c. 78. .As to providing new buildings for concentration of Superior Courts in London, and transfer of jurisdiction, and application of fees of Courts thereto, see 28 and 29 Vict., c. 48 ; 28 and 29 Vict., c. 49 ; 29 and 30 Vict., c. 63 ; 30 and 31 Vict., c. 122 ; 34 and 35 Vict. c. 37. See also notes on "Judges;" Masters;" "Commissioners to administer oaths;" "The Court of Queen's Bench;" "The Court of Common Pleas ;"" The Court of Exchequer ;" "Trials by Jury :" "Commission of Assize ;" "Lunatics ;" " Masters ;" Nisi Prius ;" "Terms;" "Writs." NOTE 25.— The permanent number of Judges of the said Eig'h Court.- -(§ 5, p. 3.) Mr. W. Paterson, in his convenient " Practical Statutes for 1873," makes the following remarks : — " The Lord Chancellor was never intended, as the Act was originally framed, to have been a Judge of this Court, but only of the Court of Appeal. There is, therefore, omission of his name amongst those of the Chief Justices, Master of the Rolls, and Chief Baron, and if any future Lord Chancellor were to be appointed a Judge of the High Court, he would come under this part of the section which would require him to be styled in his appointment, ' Judge of Her Majesty's High Court of Justice,' and to be 'appointed in the same manner in which Puisne Judges and Junior Barons of the Superior Courts of Common Law have been heretofore appointed.' This is absurd ; moreover, the addition of the Lord Chancellor makes the number of the .ludges exceed twenty-one, which this section says it is not Intended it should do. And, as by sec. 54 no Judge of the Court of Appeal is to sit and hear an appeal from any Divisional Court of which he is a member, the Lord Chancellor will be unable to hear any appealfrom the Chancery, Division.' — Pat Siat. 1873, p. 124. NOTE S6.— Such three other persons.— (§ 6, p. 4.) By sec. S of this Act the qualiScation for this appointment is the same as if now required for the OfiSce of Lord Justice in Chancery, viz. : the having been a barrister of 15 years' standing. It is intended that the three who are to be first appointed shall be three of the present Puisne Justices or Barons of the Superior Common Law Courts. NOTE 27.-Sootland.-(§ 6, p. 4.) Scotland waa united to England by 5 Anne, c. 8 (May 1, 1707). The supreme Criminal Court is called the High Court of Justiciary, and is composed of five of the lords of session, added to the Lord Justice General and Lord Justice Clerk, of whom the former, and in his absence, the latter is president. The supreme Civil Court is called the Court of Session, instituted A.D, 1532, and formerly consisting of fifteen judges,— that number being reduced in lS30 by ■11 Geo. IV., and 1 WiU. IV., c. 69, s. 20, to thirteen, viz., the Lord President, the Lord Justice Clerk, and eleven ordinary lords. This Court is required by 48 Geo. III., c, 161, to sit is two divisions ; the Lord President, with thrM Digitized by Microsoft® INDIA. 155 ordinary lords, forms the first divisioa ; and the Lord Justice Clerk and three other ordinary lords form the second division. The Lord President of the Court of Session is by 11 Geo. IV., and 1 Will. IV., c. 69, to be the Lord Justice General. Attached equally to both of the previously mentioned divisions are five permanent Lords Ordinal^. The nomination and appointment of the Judges is in the Crown. No one can be appointed who has not served as an advocate or principal clerk of session for ove years, or a writer to the signet for ten years. NOTE a8.-Ireland.-(§ 6, p. 4.) Ireland was a distinct kingdom until January 1, 1801, when by 39 and 40 Geo. III., c. 67, "The United Kingdom of Great Britain and Ireland" was formed. The salary and fees of the Lord Chancellor are settled by 2 and 3 Will. IV., c. 16. The oath of office, so as to exclude reference to religious belief, was altered by 30 and 31 Vict., c. 75, ss. 1-3, and 31 and 32 Vict., 0. 72. The appointment, salary, 2Ex., 543. In such a case two day's notice of the motion was sufficient. Attorney General v, Hallet, 15 Mee, and W. 97 ; 3 D. aad L. 685. Formerly the Court of Exchequer had a general equitable jurisdiction ; but this had been transferred to the Court of Chancery by the 5 Vict., c. 5. its equity jurisdiction in revenue cases, however still remained. Attorney OeneraZ V. Sailing, 15 Mee and W. 687. Attorney Generai v. Corporation of London, 8 Beau. 270 ; H. of L. C. 440. NOTE 55.— The JurisdictloiL of the Hig:h Court of Admiralty.— (§ 16, p. 9). The Admiralty Courts— of which there are two divisions, the Instance Court and the Prize Court — had jurisdiction and power to try and determine all maritime causes or injuries on the high seas. Generally speaking, and with the exception of any case otherwise specially provided for by Act of Parliament all admiralty causes must be causes arising wholly upon the sea, and not within the precincts of any county. For the statute, 13 Ric. II., c. 5, directs that the admiral and his deputy shall not meddle with anything, but only things done upon the sea ; and the statute 15 Ric. II., c. 3, declares that the Court of the Admiral hath no manner of cognizance of any contract or of any other thing done within the body of any county (as to what is infra corpiis comitattis, see Com. Dig, Admiralty (E. 14) ; Jac. Law Diet. "Admiral"), either by land or by water, nor of any wreck of the sea, for that must be cast on land before it becomes a wreck. It is provided, however, by the statute, 17 and 18 Vict. c. 104. ss. 460, 464, 468, 476, 492-498, that the Court of Admiralty shall, in certain cases, have jurisdiction on claims of salvaye, and by sect. 476, that such juris- diction shall attach whether the salvage service was performed at sea or by land or partly at sea, and partly by land. But it is otherwise of things, Jlotsam, jetsam, and ligan ; for over them the admiral hath jurisdiction, as they are in and upon the sea. If part of any contract (or other cause of action) arose upon the sea and part upon the land, the common law excluded the Admiralty Court from its juristUction ; for, part belonging properly to one cognizance, and part to another, the common or general law took place of the particudar (Co. iJtt. 261). Therefore, though pure maritime acquisitions, which were earned and became due on the high seas — as seamen's wages — were one proper object of the admiralty jurisdiction, even though the contract for them were made upon land (1 Vent., 146 But, as to claim for wages under £50, see 17 and 18 Vict., c. 104, ss. 188-189 ; and 24 and 25 Vict., c. 10, a. 10), yet in general if there were a contract made in England, and to be executed upon the seas — as a charter-party or covenant that a ship shall sail to Jamaica, or shall be in such a latitude by such a day ; or a contract, made upon the sea to be performed in Eng- land — as a bond made on shipboard to pay money in London, or the like ; these kinds of mixed contracts belonged not to the admiralty jurisdiction, but to the courts of common law (see Bridgman's case. Hob. 23 ; Hale. Hist. C. L. 35 ; Le Caux. V. Eden, Doug. 672). It is to be observed, however, that where the Admiralty Court had jurisdiction of the original subject matter in the cause it had also jurisdiction of all consequential questions, though properly determin- able at common law (13 Rep. 63 ; Ridley v. Egglesfleld, 2 Lee 25 ; Hardr. 183j. Wherefore, among other reasons, a suit for beaconage of a beacon standing on a rock in the sea might be brought in the Court of Admiralty, the admiral having an original jurisdiction over beacons (Crosse v. Digges^ 1 Sid, 158). In Edition to his general jurisdiction over maratime causes the judge of the Admiralty had a special commission from the Crown to adjudicate on prize qf Digitized by Microsoft® r 70 NOTES- toar (2 Chit. Gen. Pr. 638a ; 1 Doug, 694 ; Lindo t. Rodney, 2 Doug. 613n ; Mitchell V. Rodney (in error), 2 Bro. P. C. 423 ; Faith v. Pearson, 6 Taunt. 439,, and moreover had to decide on hooty of war (Le. prize on shore), when specially referred to him by Her Majesty (3 and 4 Vict., c. 65, s. ^). NOTE 56.— The Jurisdiction of the Court of Probate.— (§ 16, p. 9.) By the third section of the "Court of Probate Act, 1857," it is enacted that " the voluntary and contentious jurisdiction and authority of all ecclesiastical, "royal peculiar, peculiar, manorm and other courts, and persons in England at ** the passing of the act, having jurisdiction or authority to grant or revoke "probate of wills or letters of adnunistration of the effects of deceased persons, " shall, in respect of such matters, absolutely cease, aud no jurisdiction or •* authority in relation to any matters or causes testamentary, or. to any matter "arisin^r out of, or connected with the grant or revocation of probate or admin- " istration, shall belong to or be exercised by any such court or person." The fourth section provides that, "the voluntary and contentious jurisdiction "and authority, in relation to the granting or revoking probate of wills and "letters of administration of the effects of deceased persons now vested in, or " which can be exercised by any court or person in England, together with full "authority to hear and determine all questions relating to matters and causes "testamentary, shall belong to and be vested in Her Majesty, and shall, except "as hereinafter is mentioned, be exercised in the name of Her Majesty, in a " court to be called the Court of Probate, and to hold its ordinary sittings, and " and to have its principal registry at such place or places in London or Middle- " sex as Her Majesty in Council shall from time to time appoint." As this act had omitted to transfer the custody of and legal succession to the personal estate of persons deceased, which had been theretofore vested in the ordinarms loci, the "Court of Probate Act, 1858," partially supplied the defect by its nineteenth section, as follows, viz : — "From and after the decease of any " person dyin^ intestate, and until letters of administration shall be granted in " respect of . his estate and effects, the personal estate and effects of such deceased "person shall be vested in the Judge of the Court of Probate for the time being " in the same manner and to the same extent as heretofore they vested in the "ordinary." The twenty-third section of " The Court of Probate Act, 1857," provides that, '* The Court of Probate shall be a court of record, and such court shall have the "powers, and its grants and orders shall have the same effect throughout all "England, and In relation to the personal estate in aU. parts of England of "deceased persons, as the Prerogative Court of the Archbishop of Canterbury, " and its grants and orders respectively now have in the province of Canterbury, " or in the parts of such province witMn its jurisdiction, and in relation to those "matters and causes testamentary, and those effects of deceased persons which " are within the jurisdiction of the said Prerogative Court ; and all duties which " by statute, or otherwise, are imposed on ot should be performed by ordinaries ''generally, or on or by the said Prerogative Court in respect of probates, "administrations, or matters or causes testamentary, within their respective "jurisdictions, shall be performed by the Court of Probate : provided that no- '* suits for legacies or suits for the distribution of residues sh^dl be entertained " by the court, or by any court or person whose jurisdiction as to matters and * ' causes testamentary, is hereby abolished. " NOTE 57-— The Jurisdiction of the Coui-t for Divorce and ^VCatrimonial Causes.— (§ 16, p. 9.) In January, 1858, the Divorce Act (20 and 21 Vict., c. 85) came into operation and the jurisdiction of the Ecclesiastical Courts in England in respect of ^ suits and matters matrimonial except so far as relates to the granting of marriage licenses was transferred to the Court for Divorce and Matrimonial causes. The Act also gave the Court a jurisdiction to dissolve marriages, and to deal with the property of persons whose marriage was dissolved, and with the custody of their children. Any husband may obtain a dissolution of his marriage upon proving to the satisfaction of the court that his wife has been guilty of adultery ; and any wife may obtain a dissolution who can prove that Digitized by Microsoft® COURT FOR DIVORCE AND MATRIMONIAL CAUSES. 1 7 1 her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy, or bestiality, or of adultery, coupled with cruelty, or with desertion without reasonable excuse for two years and upwards (ss. 27 and 31). !But if the petitioner has been accessory to or comiiving at the adultery or the other party to the marriage, or has condoned the adultery complained of, of has presented or prosecuted the petition in collusion with the other parties to the suit, the court is bound to dismiss the petition (s. 30). And if the petitioner has been guilty of unreasonable delay in presenting or prosecuting the petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complaoned of, and without reasonable excuse, or of such wilful neglect, or misconduct, as has conduced to the adultery, the court has a discretionary power either to pronounce or refuse a decree (s. 31). It is not known by what sirname a woman can properly be known after she is divorced from a husband by a decree of dissolution of marriage. A woman judicially separated from a husband retains his name ; and one whose marriage has been adjudged null and void reverts to her maiden name. Divorces a m&nsd et tkoro are abolished by the Act, and judicial separations are substituted (ss. 6-7). A sentence of judicial separation may be obtained, either by a husband or wife, on the ground of adultery or cruelty, or desertion, without cause for two years and upwards. A sentence of judicial separation has the same force and effect as a divorce a mensd et thoro formerly had (ss. 7-16), it also places the vrife in the position of a/eme sole with respect to property from the date of the sentence as long as the separation continues, and in the event of her dying intestate, her property is dealt with as if her husband were dead (s. 25). She is also considered as a/eme sole for the purposes of contracts, wrongs, and injuries, and suing and being sued in any civil proceedings (s. 26). Her husband is in no way liable for her contracts or torts, except in cases where he has neglected to obey an order for the payment of alimony to her when he is liable for necessaries (s. 26). The law respecting the jurisdiction of the courts of one country to determine the validity or invalidity of marriage contracts between subjects of another country, or between subjects of their own country who have been married abroad, and respecting their jurisdiction to dissolve such marriages is so un- certain and imsettled, that it is impossible to give a clear or correct summary of it. It may, however, be useful to direct attention to a few of the principal decisions since the passing of the Divorce Act. An English court has jurisdiction to enquire into and determine the validity or invalidity of any marriage which has been solemnised in England. Thus, were two French persons came to this country for the purpose of evading the law of France and were married here, and returned immediately after the mar- riage, and the marriage was held null and void by the French court, the EngUsh Court held it to be viJid (Simonin v. Mallac. 2, Sw. and Tr. 67). In a case where marriages were alleged to have taken place in Scotland and in Ireland, but the husband had never been domiciled in England, the Court refused to entertain a petition for restitution of conjugal rights presented by the wife (Yelverton v. Telverton 1, Sw. a/nd Tr. 574). In suits for dissolution by a husband it is necessary to satisfy the court that the husband has a bond JUU domicile in England at the time of the commence- ment of the suit (Brodie v. Brodie 2, Sw. and Tr. 259). But in one case where it did not appear whether the fiusband's domicile was English or Irish, the court made a decree at the instance of the wife {Bond v. Ji As to the restraint of Ecclesiastical Court by writ, see 13 Edw. I. (stat. circ. ag.) ; 18 Edw. I. (.stat. de consiUt.) ; 9 Edw. II., stat. 1 (Art. ClerL), cc. 1, 2, 5 ; 45 Ed. III., c. 3 ; 50 Edw. III., c. 4 ; 13 Chas. II., stat. I, c. 12. NOTE 73 — ^No Cause shall be restrained by Injunction.— (§ 24, p. 18). As prohibition interfered in a dispute as to jurisdiction, so injunction lied from the Court of Chancery to the Common Law Courts, wherever there appeared to be an insufflcient recognition of the principles of equity, or anyone was attempting to make a Court of Law an instrument of injustice. As equit- able estates, rights, and titles, will tor the future be equally recognised in all divisions of the Supreme Court, restraint of any proceedings in the High Court or Court of Appeal by injunction is useless and unnecessary ; and smce the Ulterior Courts up to their jurisdiction have similar powers to the High Court fertile concurrent administration of law and equity, (see ss. 89-90), the proceed- ings for injunction to inferior Courts ^vill be seldom resorted to. NOTE 74.— Administration of Assets of Insolvent Estates.— (§ 25, p. 19). In the administration of the legal assets of a deceased insolvent, the Court of nquity has hitherto given priority to different classes of creditors by which precedence has been given to judgment and specialty creditors over simple con- Digitized by Microsoft® EXPRESS TRUST. 1 83 tract creditOTS. lu the distribution of Equitable assets, a different rule has pre- vailed. In bankruptcy the assets ai-e distributed ^aW^asii/ amongst all the creditors and a creditor who holds secmity on the property of the bankrupt must either give It up or give credit for its value, or be excluded from all share in any dividend • (see Bankruptcy Act, 1869, 32 and 33 Vict., c. 71, s. 40). There seems no reason why the estate of an insolvent should be administered in a different way when he IS dead from what it is when he is living ; and it was well, therefore, to assimilate theone with the other. It is difficult to understand, however, why different divisional courts should be selected, and why the administration of the estate of the insolvent when he is dead should be assigned to the Chancery division and when he is alive to the Exchequer division : (Pat. Stat., 1873, p. 138). This enactment displaces in favour of the rule in bankruptcy, the rule in Equity as established in Mason v. Bogg, 2 Mylne and Craig, 443, allowing a creditor mortgagee to prove for his debt, realise his security, and receive a dividend rateably with other creditors of the deceased on his whole debt. It appears to have escaped attention that the equitable rule prevails also in cases arising under the Winding-up Acts (see Kellock's ca>^e, Law Rep. 3, Ch. 769), and in default of further statutory enactment it must, by sub-section 11, still preva^ in these cases : (Hayne's Judicature Act annotated, p. 14). NOTE 75.— Express Trust.— (§.25, p. 20.) A trust is defined to be a confidence reposed in one person, who is termed the Trustee for the benefit of another who is termed the Cestui que trust, and it is a confidence respecting property which is thus held by the former for the benefit of the latter. Out of this confidence arise two estates in the property which is the subject of it. (I.) a legal estate in trustees, which consists essentially in obligation ; and (II.) an Equitable Estate in the cestui que trust which consists in right and beneficial enjoyment. So that a trust embraces the two ideas of an obligation on the part of one person, and a corresponding right on the part of the' other, both growing out of the radical idea of faith and confidence. Trusts may be thus classed : — I. Express. (a) Trusts executed, perfect, complete, or constituted. (&) Trusts executory, imperfect, incomplete, or directory. II. Arising by operation of law. (a) Constructive. (&-) Resulting. (c) Implied. Eitpress trusts are generally, I. Trusts created in marriage settlements. II. Trusts created in conveyances to purchasers. III. Trusts created in conveyances by way of mortgage or otherwise, for the payment of debts. IV. Trusts created in assignment of choses in action. Mr Hayne, in his annotated edition of the Judicature Act (p. 15), makes the following remarks- on this provision : — " So far as it goes, it states what is undoubted by the rule in Equity, but it suggests a less extensive rule than that which now obtains. Eor instance, a guardian in possession of an infant's real estate (though not holding on an express trust), is treated as a trustee, and the Statute of Limitations is no answer to a bill for an account : Matthew v. Brise, 14 Beavan 341 ; Thomas v. Thomas, ,2 Kay and Johns 79. So again the, Statute of Limitations has been held to be no defence to a suit against actual participators in a breach of trust, though not trustees : BrigTnan v. GiU, 2^ B^eavan 302. So again the personal representative of a trustee who has committed a breach of trust caimot successfully set up the statute as a defence to a claim against the Trustee's estate : Brittlebank v. Qoadvnn, Law Rep. 5 Eq., 545." NOTE 76.— Statates of Limitations — (§ 25, p. 20.) The principal statutes of limitations are as follows : — As to limitation of time for suits for recovery of realty, see 32 Hen. VIII., c. 2. As to limitation of time for actions and suits, see 21 Ja. I., c. 16 ; 19 and 20 Vict., c. 97. As to limitation of time for prosecution for treason, see 7 and 8 Will. III., c. 3. Digitized by Microsoft® 1 84 NOTES. As to limitation of time for writ of error, see 10 Will. III., c. 20. As to limitation of time for suits for seamen's wages, see 4 and 5 Ann, c, 3, ss. 17-19. As to limitation of time for removal by certiorari of proceedings before justices, see 13 Geo. II., c. 18. As to limitation of time for suits for land by the Crown, see 9 Geo. III., c. 16 ; 24 and 25 Vict., c. 62. As to limitation of time for various suits in ecclesiastical Courts^ see 27 Geo. III., c. 44 ; 3 and 4 Vict., c. 86, s. 21. As to limitation of time for information in quo warranto, see 32 Geo. III., c. 58. As to limitation of time for action for debts of heir apparent of Crown, see 35 Geo. III., c. 125. As to wliat aclcnowledgment vrill talie contract out of statutes of limitation of time, see 9 Geo. IV., c. 14 ; 3 and 4 Wm. I V., c. 27 ; 3 and 4 Wm. IV., c. 42 ; 19 and 20 Vict., c. 97. As to statutes of limitation of time applied to set off, see 9 Geo. IV., c. 14. As to limitation of time for suits respecting land, rent, advowson, tithes, mortgages of land, legacy, arrears of dower and interest, see 3 and 4 Will. IV., c. 27 ; 7 Will. IV., and 1 Viet., c. 28 ; 19 and 20 Vict., c. 97. As to limitation of time for actions on specialty, debts, or on awards, for fine, for copyholds, escape, money levied on, fi. fa., &c., see 3 and 4 WilL IV., c. 42 19 and 20 Vict., c. 97. As to limitation of time for actions on penal statutes, see 3 and 4 Will. IV., 0. 42 ; 11 and 12 Vict., c. 43, s. 36. As to liiuitation of time for quo warranto against mayor, &c., in borough, see 7 WilL IV., and 1 Vict., c. 78 ; 6 and 7 Vict., c. 89. As to limitation of time for impeachment of sale by bankrupt, see 2 and 3 Vict., c. 11, s. 13. As to limitation of time for suits against clergy for eccle^astical offences, see 3 and 4 Vict., c. 86. As to limitation of time for actions for anything done under Local Act, see 5 and 6 Vict., c. 97. As to limitation of time for complaint in summary proceedings, see 11 and 12 Vict., c. 43. As to limitation of time for actions against justices, see 11 and 12 Vict., c. 44. As to limitation of time for actions or suits of account, see 19 and 20 Vict., c. 97. As to limitation of time for error on revenue side of Exchequer, see 22 and 23 Vict, c, 21. As to limitation of time for suits to recover personal estate of intestate, see 23 and 24 Vict., c. 38, s. 13. As to limitation of time for suits respecting realty by Duke of Cornwall, see 23 and 24 Vict., c. 53 ; 24 and 25 Vict., c. 62. As to length of notice of action where notice required, see 5 and 6 Vict., c. 97. As to salvage to recaptors of British ships and goods from enemy, and limi- tation of time for action, see 27 and 28 Vict., c. 25. 'KOTE 77-— Equitable Waste.— (§ 25, p. 20.) Waste from the Latin vastum is a spoil or destruction in houses, gardens, trees, or other corporeal hereditaments, to the disherison of him tliat has the remainder or reversion in fee simple or fee tail. Co. Litt. 53. Waste is either : — I. Voluntary, which is an act of commission, as pnlUng doWn a house, or II. Permissive, which is a matter of omission only as by suffering it to fall for want of necessary reparation. Whatever does a lasting damage to the freehold or inheritance is waste. 4 Co. 64. ' Again waste is either : — I. Legal. II. Equitable, which comprehends acts not deemed waste at common law. To prevent parties, subject to waste, from suffering by the ordinary common law liability, it is not unusual to insert a clause by which they are not to be Digitized by Microsoft® MERGER. 185 subject to impeachment for waste. The intention of thLs clause is to enable the tenant to do many things, such as cutting down trees or opening new mines, which would, by the construction of the common law, amount to waste ; but it does not extend to allow destructive or malicious waste, such as cutting down timber which serves for the shelter or ornament of the estate. Packmgton's case, 3 Atk. 215. The privilege thus given by the words, "without impeachment of waste, " is annexed to the privity of estate ; so that if the person to whom that privilege is given changes his estate^ he loses the privilege. Co. Litt. 22i), n.I. ; 3 Wood. 399. A tenant for life, "without impeachment of waste," has as full power to cut down trees and open new mines for his own use, as i£ he had an estate of inheritance ; and is in. the same manner entitled to the timber, if severed by others (Pyne v. Dor, 1 T.R. 64) ; but the words, "without impeach- ment of waste," will not permit a tenant for life to unload a house and pull down the tiles. Vane v. Lord Barnard, 1 T.R., 56n ; 2 Vem. 738. See also, as to this, Gent V, Harrison, Johns. 517 ; 29 L.J. Ch. 68. Morris v. Morris, 3 De Gex. and J. 323. Field v. Brown, 27 Beav. 90. Micklethwait v. Micklethwait, 1 De Gex. and J. 504 ; 26 L. J. Ch. 721. Vincent v. Spicer, 22 Beav. 380 ; 25 L.J. Ch. 589. NOTE 78.— Brereer.-<§ 25 p. 20) Merger is described to be whenever a greater estate and less coincide, and meet in one and the same person, without any intermediate estate ; whereby the less is immediately annihilated, or is said to be merged, that is sunk or drowned in the greater. Thus, if there he tenant for years, and the reversion iu fee simple, descends to or is purchased by him, the term of years is merged iu the inheritance, and shall never exist any more. Shep. Touch. 341^ ed. Hillyard ; 2 BL Com. 177. The object of merger is to accelerate the possession, or at least the estate, in which the merger takes place. 3 Prest. Conv. 6. It is an act of law, and seems entitled to the denomination of the extinguishment by act of law of one estate in another by the union of these two estates. To consolidate two estates and confound them into one estate, are its effects. The estate thus blended -will give the precise time of enjoyment originally limited by the more remote of the two estates, and no more ; for the estate in which the merger takes place is not enlarged by the occasion of the preceding estate. (Id.) And see Smith v. Lord Camelford, 2 Ves. Jun., 714 ; Webb v. RusselL 3 T.R., 394 ; Brook, Exting., pL 60 ; ISaimd, 387 ; Salk, 326 ; 2 Co. Litt., p. 557. In order to effect a merger the following circumstances hitherto must have cpncurred : — (I.) There must of necessity be two estates at least in the same property, or in the same part of the same property, which must vest in the same person. Merger however, will operate between three or more estates, as weU as between two. (II.) The several estates must be immediately expectant upon each other ; the more remote estate must be without any intervening vested estate or contingent remainder created in the same instant of time and by the same means, which originated the other estates ; and the determination or acquisition of an inter- mediate estate may be the cause of merger, as between estates kept distinct by means of such intermediate estate. (III.) The estate in reversion or remainder must he larger than the preceding estate, for there cannot be a merger as between equal estates of freehold. For the future another element will be necessary for merger to operate, viz : — (IV.) The beneficial interest must be deemed to be merged in equity. Merger was not favoured in equity, except to promote the intention (Phillipa V. Phillips 1, P. Wms. 41) ; and, therefore, though there might, as to equitable estates, be an union in equity as well as at law, yet equity would not permit an acceleration of charges, incumbrances, &c., as a consequence of the imion against the justice of the case or contrary to the intention. NOTE 79,— Chose in Action.— (§ 25, p. 21.) A chose In action, otherwise caUed a chose in sv^enso is a right — in potentia rather than in esse — ^to receive or recover a debt, or money or damages for breach of contract, or for a tort connected with contract, but which caimot be Digitized by Microsoft® 1 86 NOTES. enforced without action, and therefore, termed a chose, or thing in action, see Com. Dig. Biens. ; 2 Black Com., 396 ; 1 Chit. Gen. (Pr.) 99. The necessity for the rule contained in this section of the Act arose from the fact that the Courts of Law and Equity, now to be united, administered a different law on the subject of choses m action. At law^ with the exception of negotiable instruments, bills of exchange, &c., a chose m action could not be assigned. When, therefore, a debt or bond was assigned over, it was still necessary to be sued in the original creditors name, and the person to whom it was transferred assumed rather the character of an attorney than an assignee, unless the debtor assented to the transfer, but Courts of Equity totally dis- regarded this nicety. They gave effect to assignments of trusts, and possibilities of tnists, and contingent interests, whether they were in real or personal estates, as well as to assignments of choses in action, such equitable transfer being in the nature of an agreement, of which the Court of Chancery directed the performance. [Co. Litt. 214a ; 2 Bl. Com. 442 ; 2 Sanders on uses 40 ; 2 Story's, Eq. Jmis. 278; Watkins Com. 36.] For the future the two essentials for an assignment absolutely of a cho^e in acticm are (I.) An assignment by writing under the hand of the assignor ; (II.) Express notice in writing to the person from whom the assignor woiSd be entitled to claim the chose in action. NOTE 80.— The Acts for tlie Relief of Trustees-— (§ 25, p. 22.) These Acts are 10 and 11 Vict., c. 96, and 12 and 13 Vict., c. 74, and -will be found at length among the "Statutes Referred to," pp. 130-131. Section 3 of 10 and 11 Vict., c. 96, is repealed by 35 and 36 Vict., c. U, s. 26. The jurisdiction of the Court of Chancery, to a limited extent, has been extended to County Courts, by 28 and 29 Vict., c. ^, and by 30 and 31 Vict., c. 142. By the 5th clause of section 1 of the 28 and 29 Vict., c. 99, jurisdiction is given to the County Courts in all proceedings under tha Trustees Rehef Acts, or under the Trustees Acts, or under any of such Acts, in which the Trust Fund to which the proceeding relates shall not not exceed m amount or value the sum of £500. The sections of "The County Courts Act, 1867" (30 and 31 Vict., c. 142),. referring to the subject, are as follows : — Trustees 24. Any moneys, annuities, stocks, or securities vested in any may pay persons as trustees, executors, administiutors, or otherwise, upon tmst trusts within the meaning of an Act passed in the session of Par- moneys, or liament, holden in the tenth and eleventh years of the reign of Her transfer present Majesty, chapter ninety-six,, "for better securing Trust stock and Funds, and for the Relief of Trustees," where the same does not securities exceed in amount or value the sum of five hundi'ed pounds, upon the into the filing by such trustees or other persons, or the major part of them. Court. to or mth the registrar of the county court^ within the district of which such persons or any of them shall reside, an affidavit shortly describing the instrument creating the trust according to the best of their loiowledge, may, in the case of money, be paid into a post- office savings' bank established in the town, in which the County Court is held in the name of the registrar of such Court, in trust to attend the orders of the Court, and upon such persons filing with the registrar, the receipt, or other document given to them by the officer of the said bank, the registrar shall record the same, and give to them an acknowledgment in such form as may be dh-ected by any rule of practice, which acknowledgment shall be a sufficient dis- charge to such persons for the money so paid, and in the case of stocks or securities may be trajisferred or deposited into or in the names of the treasurer and registrars of sucla Court, in trust to attend the orders of the Court, and the certificate of the jffoper officer of the transfer, or deposit of such stocks or securities, shall be a sufficient discharge to such persons for the stocks or securities so transferred or deposited, provided that where there is not a treasurer a person shall be nominated by rule of practice, to whom the transfer or deposit in conjunction mth the registrar may be made. Digitized by Microsoft® STIPULATIONS IN CONTRACTS. 187 Extension of 25. For the purposes of the last section all the powers and powers given authorities given to the Coui-t of Chancery by the Act passed in by 12 and 13 the session of Pai'liament, holden in the twelfth and thu-teenth Jn' ^ * ' YQ^s of the reign of her present Majesty, chapter seventy -four, to court ot "for the further Relief of Trustees," shall be possessed and cnancery, to exercised by the County Courts, and any order made by virtue of county gmjh powers and authorities shall fully protect and indenmify all courts. persons acting under or in pursuance of such order. NOTE 81.— Stipulations in Contracts — (§ 25, p. 22 ) Although sub-section 11 of this section would have decided any conflict between the Common Law and Equity Courts on this subject, the view taken by some Common Law Judges antagonistic to the decisions of the Court of Chancery, may have occasioned the prominence given to this particular case of conflict. Por instance, in the case of Preston v. Bania and another (27 L.T.N.S., 612), an action on a bond conditioned for the payment of money by instalments, a plea of payment into Court of money suflBcient to satisfy the claim of the plaintiff iu respect of the unpaid instalments, for default In payment of which the action ■was brought, was held by the Court of Exchequer to be bad. Mr. Earon Bram- well iji delivering judgment making the following remarks : — Originally, no doubt, at common law the penalty named in the bond was the debt to be recovered. The courts of law, considering that it was most probable that the obligor, upon entering into the bond, knew what he was about, and meant and intended what he said or put his hand to ; said that if a man bound himself to pay a penalty in a certain event, he should, if that event occurred, pay it. The Court of Chancery, however, seems to have thought that it knew the obligor's meaning better than he knew it himself, and thereupon took upon itself, most unfortunately in my opinion, to relieve the obligor from the payment of the penalty upon the payment of the sum named in the defeasance and the costs. This practice having been once begun, soon, of course, became general. It was taken for granted that in such cases equity of course was right, and that the common law was wrong ; and so what was called the equitable construction had to be maintained. The Legislature, then, in order to relieve defendants from having to apply to a Court of Equity for redress in such actions, and also to take away the necessity of two suits being instituted, the one at Common Law and the other in Equity in the case of evei-y bond, passed the Act of the 8 and 9 W. and M., c. IL NOTE 82.-mandamus.-<§ 25, p. 22 ) The principal statutes in connection with the writ of mandamus are as follows : — As to amendment of writs of mandamus, quo warranto, and error by extension of statutes of jeofails, see 9 Ann, c. 25, s. 7 ; 5 Geo. I., c. 13. As to writ of mandamus for election of a mayor, see 11 Geo. I., c. 4. As to proceedings as to returns to writ of mandamus, &c., and protection of officers to whom directed, see 9 Ann, c. 25 ; 1 Will. IV., c. 21. As to demurrer to return, error on, and protection of persons obeying writ of mandamus, see 6 and 7 Vict., c. 67. As to practice on writ of mandamus respecting municipal corporations, see 6and7Vict., c. 89. _ _^_ As to claim of, in action and issue of writ of mandamus, see 17 and 18 Vict., u. 125, ss. 68-/5 ; 23 and 24 Vict., c. 126. As to proceedings by motion for prerogative, see 17 and 18 Vict., c. 125, s. 76. As to writ of mandamus to compel admission to borough as freemen, &c., see 12 Geo. III., c. 21, s. 1. , ,„ , „. „. . As to writ of mandamus to judge of Coimty Court, see 19 and 20 Vict., c. ■ 108 ; 21 and 22 Vict., c. 74. . , , As to protection of Justice of the Peace in actions against them for acts done in the execution of their office, and writ of mandamus to, see 11 and 12 Vict., c. 44. Digitized by Microsoft® 1 88 NOTES. NOTE 83 -InjTmotion.-(§ 25, p. 22.) The principal statutes in connection with the grant of an injunction are as follows:— ji„,T._i As to grant of injunction in action at Conunon Law, see 17 and IB Vict., u. 125, S8. 79-82 ; 2.3 and 24 Vict., c. 126, s. 22. . „, j . As to the manner of enforcing an injunction against a corporation, see Zi and 24 Vict., c. 126, s. 33. NOTE 84.— Such Injtinotioii may be grranted if the Coiort shall think fit.-(§ 25, p. 22.) Mr. Hayne (Judicature Annotated, p. xvi.) draws attention to the cases of Talbot V. Hope-Scott 4 Kay, and Joiins, 96 ; Lowndes v. Settle, 10 Jur. N.S. 226 ; S.C. 33 L.J.N.S. Chanc. 451 ; Stanford v. Hurlatone, L.R. 9, Ch. 116. NOTE 85— Damages hy Collisions at Sea.— (§ 25, p. 22.) In the case of a collision between two ships, where both ships are to blame, the rule in the Admiralty Court is to ascertain the sum total of the joint damage, and then to divide it between the two ships, so that each contributes half the cost of repairing the damage the other has received. The ship Which had received the least damage would have, therefore, to pay something to the one which had received the most. For example, if one slip was injured to the extent of £1,000 and the other to the extent of JE9,000, the former would have to pay to the latter £4,000, being the moiety of £10,000, after deducting the £1,000, the extent of the damage which the vessel least injured had received. The rule at common law is very different, for if an action be brought for the damage occasioned in a collision either between two carriages or two vessels, through the negligence of the def endant^ if the plaintiff be found to have been guilty of contributory negligence, he fails in h^ action ; so that if each party has been to blame each bears the damage inflicted by the collision, and the plaintiff in addition has to pay the whole costs of the action. As the Admiralty and Common Law Courts are to become divisional courts of one and the same high court it was proper to have one rule in each instead of such conflicting rules, and the Lord Chancellor proposed to substitute the rule at common law for that in the Admiralty Court, but the Legislature rejected this, and required the rule in the Admiralty Court to prevail as being not only the more equitable one, but as being the universal one amongst maritime nations, with the single exception of Prussia. The causes arising out of collisions at sea, over which the Admiralty Court has hitherto had exclusive jurisdiction, are to be assigned to the Admiralty division ; and, therefore, in those causes the enactment in sub-section 9, declaring that the Admiralty rule is to prevail, will produce no change ; but there are many cases in which an action at common law would lie for the iiyury resulting from any such collision, notwithstanding it was one over which the Court of Admiralty had jurisdiction, as shown by the case of Nelson V. Couch (15 C.B., N.S. 91; 33 L. J., N.S. 46, C.P). In the detemunation of such cases for the future, the above enactment will make a considerable change.— Pat. Stat. 1873, p. 141. NOTE 86.— Questions relating to the Custody and Education of Infants.— (§ 26, p. 22 ) The cases of Ee Kwry Ellen Andrews, 28 L.T.N.S., 355 ; Andrews v. Salt, 28 L.T.N.S.^ 686 ; illustrates the conflict of the Common Law and Equity Courts on this subject. In that case an agreement was made between a husband and wife before their marriage that the sons of the marriage should be brought up as Cathohcs and the daughters as Protestants. In 1862 a daughter was bom, and was baptized by a Protestant clergyman in the absence of the father, who, however, made no objection. In 1863 the father died, having by his will du-ected his children to be brought up as Catholics, and having appointed his Digitized by Microsoft® CUSTODY AND EDUCATION OF INFANTS. l8g brother, who was a Catholic, their guardian. The daughter was maintained by the wife's relatives and brought up by them as a Protestant from the time of the fathers death down to 1871, when the guardian for the first time informed them of the existence of the will, and demanded that the daughter should be given up to him to he educated as a Catholic. On their refusal to do so, the giardian obtained a writ of habeas corpus against them in the Court of Queen's ench. The Lords Justices of Appeal, however, held that the legal right of the father to have his children educated in his own religion had been waived by him in his lifetime, and subsequently by the guardian, and that as they had thus rendered it for the benefit of the daughter to be left in the custody of the mothers relatives, an injunction must be granted to restrain the guardian from interfering with her custody or education. The principal statutes on this subject are as follows : — As to suit of infant by next friend, ^see 13 Edw. I. {StaU West 2), c. 15. As to capacity of chUd in ventre sa mere to take in remainder, see 10 Will, III., c. 22. Aa to no action upon contract of infant unless ratification in writing, see 9 Geo. IV., c. 14. As to maintenance of infant out of dividends by order of Court of Chancery, see 11 Geo. IV., and 1 WUL IV., c. 65, s. 32. As to order of Court of Chancery for access to, or custody of infant by mother, and agreement in separation deed with respect thereto, see 36 and 37 Vict., c. 12. As to voluntary custody of infant convicted of felony, see 3 and 4 Vict., u. 90. As to power of infant in certain cases to make binding, marriage settlement, see 18 and 19 Vict., c. 43 ; 23 and 24 Vict., c. 83. As to national status of infant, see 33 and 34 Vict., c. 14, s. 10. As to administrator during minority of infant executor, see 38 Geo. III., >;. 87. As to exposing or abandoning child, see 24 and 25 Vict., c. 100, s. 27. As to taking away child under 14 from parent, see 24 and 25 Vict., c. 100, s. 56. As to neglect of child by parent, see 31 and 32 Vict., c. 122. As to child under one year of age, registry, and regulation of houses for reception of, and inquest on death of child, see .35 and 36 Vict., c. 38. As to admission to copyhold, of infants and married women, and payment of their tines and abolition of forfeiture of copyhold by them, see 11 Geo. IV., and 1 Wm. IV., c. 65; 16 and 17 Vict., c. 70. As to guardian for purpose of consenting to mazriage of infant, see 4 Geo. IV., c. 76, s. 16. As to power of attorney for receipt of dividends on stock of joint tenant where one is lunatic or infant, see 33 and 34 Vict., c. 71, s. 19. As to renewal of lease where infant or married woman is lessee or lessor, or where lessor is out of jurisdiction, see 11 Geo. IV., and 1 Will. IV., c. 65. As to lease by Court of Chancery of estate of infant, see 11 Geo. IV., and 1 Will. IV., c. 65. As to power of infant to sue for wages in County Court, see 9 and 10 Vict., c. 95, s. 64 As to trustee's investment of funds, application of infants' property to hia maintenance, and accumulation of surplus, see 23 and 24 Vict., c. 145. As to education of children of persons in receipt of out-door relief, see 36 and 37 Vict., c. 86, ss. 3, 4. As to children under age of eight, not to be employed in agriculture except by parent, see 36 and 37 Vict., c. 67, s. 5. As to certificates of attendance at school of children between the ages of eight and twelve employed in agriculture, see 36 and 37 Vict., c. 67. NOTE 87.-Terms.-{§ 26, p. 23). The date and length of legal terms were settled by 11 Geo. IV., and 1 Will. IV., c. 70; IWill. IV. c. 3. Digitized by Microsoft® 190 NOTES. NOTE 88.-Cirouits.- As to rembv^ of bonds from Common PlesLS Begister. see 19 and 20 Viet., !;■.■«. 108. ..,,-, ' . --,-.. :x , , As to suitors money in County Court, see 9 and 10 Vict. , c. 95, s. 112. ' ' ' "As to Suitor^ monfey in County Court in equitable matters, see 30nand,Sl' Vict., c- 142. -■•,-. 'I .,. , 1, wt'cd As to fees in County Court, see 19 and 20 Vict., c. 108 : 21 and 22 Vict., c. 95 : ■28and-29Vlct., c. 99; 30and31Vict., c. 131, s. 46. ;■ ' •■ -t M to suing Judge of County Court in a4ioining distsieiy see il^ and 20 Vict., V. 108. .,,„.AstO,vacatJon.fQr Judge of County Court in September, &c., see 28iaid29 ^y Vict., c. 99. ..' ■ " ■■ 1 ■ 1 . ' ., - -. . >' c ■ ,■...,>■ As to attome?- wten to be heard in County Court, see 16 and 16 -Vicl.fKBn54, ». 10. ! fT lii Digitized by Microsoft® MOTION FOR A NEW TRIAL. 193 Aa to >)aJlliS of County Court authorized to act as broker, see 12 and 13 Vict^ As to reference by Chancery Court of matters to County Coutt. see 9 and 10 Vict, c. 95, s. 22 ; 28 and 29 Vict., c. 99. As to reference by Chancery Court of winding up of company to County Court, «ee 30 and 31 Vict., c. 131, sa. 41-6. As to jurisdiction of Chancery Judge in Chambers, district Courts of Bank- ruptcy, and County Court as to charities, see 16 and 17 Vict., c. 137 ; 23 and 24 Vict., c. 136. As to Shire or County Courts itt Couftty Palatine of Chester, see 27 Hen. VIII. t 5 ; 32 Hen. VIII , c. 43 ; 33 Hen. VIII., c. 13. As to execution of judgment in Inferior Court by County Court, see 35 and 36 Vict., c. 86, s. a As to grant of Probate and adnlinistration through registrar of County Court Where estate does not exceed £100, see 36 and 37 Vict., 0. 52. NOTE 90.— Criminal Trials.— (§ 47, p. 37.) The Act for the further amendment of the administration of the Criminal Law (11 and 12 Vict., c 78), will be found at length among the " Statutes Referred to "(pp. 84-86). NOTE 91.— Five of them at the least— (§ 47, p. 37.) The quorum here mentioned is the same totidem uerbis as that provided by aecUon 3 of 11 and 12 Vtct, c 78. ITOTE 92.— One of such chie& at the least shall be part.— (§ 47, p. 37.) By seo. 32 (p. 28), Her Majesty in Council may order the abolition, on vacancy, ef tile distinction of the offices of the chiefs here mentioned. NOTE 93 —Every motion for a new trial (§ 48, p. SI). In note 69 (p. 180) the four cases in which no appeal is to lie from the High Court of Justice to the Court ot Appeal are set out. By Rule of Procedure 48 in the schedule to the Act (p. 80) new trials are further restricted. By it a new trial is not to be granted on the ground of mis- direction, or of the improper admission or rejection of evidence, unless in tha •pinion of the Court there lias been some substantial wrong or miscarriage. NOTE 94.— Judges not to sit on Appeal from their own judg- ments.— {§ 54, p. 39.) Tliis section will prevent the Lord Chancellor from sitting in the Court of Appeal on the hearing of an Appeal from the Chancery Division of the High Court, since the effect of sections 5 and 31, is to make the Lord Chancellor a ' member of such Divisional Court. This will probably be amended by some future Act, since the Lord Chancellor will rarely, if ever, sit in the Court of First Instance, and it will be most desirable to have the beneRt of his services on Appeals from the Chancery Divisional Court. — ^Pat. Stat. 1873, p. 156. NOTE 95.— Acts relating to the Judicial Committee.— (§ 5S, p. 40.) These Acts are given in Note 1 (p. 133). The proviaion specially referred to here is 3 and 4 WiU. IV., c. 41, s. 30. NOTE 96.— Such right as may now exist to have particular cases suubmitted to the verdict of a Jury.— {§ 86, p. 40 ) For Elxamplo : — 20 and 21 Vict, c. 77, a. 35, |?ves an heir at law who is party to Probate Cause, upon making application to the Court for that purpose, the right in all cases to have (tueatisiu of fa«t tried by a jury. M Digitized by Microsoft® ■ 1 94 ■NOTfiS. ■' 20 and il Vict,, c. 85, a. 2% gives the right to eirtier party in suits for fliasolution of marriage to insist on having contested matters of fact tried by a jury. I^OTE 97— The Common La-w Prooednre Act, 1854 — (§ 59, p. 42.) The sections of this Act here referred to will be found among the " Statiites Referred to." NOTE 98.— Prothonotary or District Porthonotary of any liocal Court.— (§ 60, p 42.) '32 and 33 Vict., c. 37, authorizes the appointment of District Prothonotaries of the Court of Common Pleas of the County Palatine of Lancaster ; bui by the Judicature Act, 1873, the Court has been united and consolidated with tho Supreme Court, and, therefore, on the 2nd November, 1S74, ceases to exist. NOTE 99.— The County Courts Act, 1887.— C§ e.7, p. 45.) The provisions of this Act, made applicable to the High Court, will be found among the" Statntes Refen-ed to " (pp. 91-93). Note lOO.— The Law relating to Jurynjpn or Juries.— {§ 72, p. 48.) The principal statutes in connection with this subject are i^ follows : — As to indictor not to serve on jury at trial of indicted, see 25 Edw. III., Stat. 5, u. 3. As to delivery of copy of panel of jury, before session, see 42 Edw. Ill;, ' c. 11. As to who to serve on jury on inqixest by escheator, see 8 Hen. VI., c. 16. ■ As to bailiff, &c., not to return his officers on jury, see 23 Hen. VI., c. 9 ; 6 Geo. IV., c. 50, s. 62. As to qualification for juror in towns by possession of personal estate, see 23 Hen. VIII., c. 13. As to oath of sheriff, bailiff, &c., as to return of jurors, see 27 Eliz., cl 12. As to writ of attaint against juror abolished but embracery punishab e, see 6 Geo. IV., c. 50. As to regulation of all matters relating to special, .and common jury" excevfc juries of coroners, or of sheriffs in cities and Ubei'ties, see 6 Geo. IV., c. 50 ; ^ and 26 Vict., c. 107. As to challenge of jury in criminal trial, see 7 and 8 Geo. IV., c. 28, s. 3. As to service on jury and removal of exemptions in boroughs, see 5 and 6 Will. IV., c. 76, ss. 121-123 ; 7 Will. IV,, and I Vict., c. 78, s. 36 ; 33 and 34 Vict., c. 77, s. y. As to summoning -of jury to adjourned quarter sessions, see I'and 2 Vict,, c, 4. As to taking of affinnation, by jury, not to be stated in setting out legal proceedings, see 6 and 7 Vict., c. ,S5. As to expenses of making out lists of jurors, see 7 and 8 Vict., c. 101, s. 60.- As to summoning, Digitized by Microsoft® SOLICITORS, ATTORNEYS, AND PROCTORS. 1 97 NOTE 110 —Solicitors, Attorneys, and Prootors— (§ 87, p. B8.) The principal statutes in connection with this subject are as follows : — • As to doing suit to county, hundred, tithing, or lords court, by attorney, see aO Hen. Ill,, c. 10. As to in what cases defendants may make attorney, see 6 Edw. I., c. 8 ; ^ Wz., c. 5 ; 31 Eliz., c. 10. As to making a general attorney for whole circuit, see 13 Edw. I. (Stat. West. 2), e. W. As to making attorney by persons beyond the seas, or at a distance, see ST Edw. I. (,0r± de. lib. Perq.), c. 5 ; 7 Eic II., c. 14, As to making attorney by outlaw, see 7 Hen. IV., c. 13. As to acting as attorney after conyiction for forgery, perjury, or barretry, see 12 Geo. I., c. 29. As to fees of attorney on service of writs, see 5 Geo. II., c. 27. As to articled clerks of attorney, and of notaries public, &c., see 6 Geo. IV,, c. 46 ; 6 and 7 Vict., c. 73. As to articled clerks of attorney, not disqualified though attorney, Ac, ia uncertifioat"?d, see 7 and 8 Vict., c. 86, s. 4. As to exemption of attorney from serving on juries, see 6 Geo. IV,, c. 60, a. 2 ; 33 and34 Vict, -0.77, s. 9. As to exemption of attorney from serving as parish constable, see 5 and 6 Vict. , c. 109, s. 6. As to competency of person appointed by Queen, Treasury, Customs, Inland Revenue, &c., to act as attorney, see 9 Geo. IV., c. 25; 6 and 7 Vict, c. 73 : 16and 17 Vict, c. 107, s. 323. As to practice as attorney on revenue side of Exchequer, see 6 and 6 Vict., t. 86. As to enrolment of copy of articles of clerkship of attorney, where articles lost, see 2 and 3 Vict., c. 3.1, s. 9. As to articled clerks to examination, admission, and enrolment of attorney, registrar of (Incorporated Law Society), regulations respecting practice by, and , practice as, of unqualified persons forbidden, see 6 and 7 Vict,, c. 73 ; 7 and S Vict,, c. 86 ; 14 and 15 Vict., c. 88 : 23 and 24 Vict,, c. 127. " As to annual certificate of attorney, see 6 and 7 Vict., c. 73 ; 23 and 24 Vict, c. 127 : 33 and 34 Vict., c. 97, ss. 59-64. As to admission as attorney of Scotch writers to the signet, solicitors, and procurators, see 23 and 24 Vict., c. 127, s. 15. As to admission as attorney, of Scotch members of the faculty of advocates, see 35 and 36 Vict., c, 81. As to taxation of bill of cost of attorney, see 6 and 7 Vict., c. 73 ; 14 and 15 Vict, c. 88 ; 23 and 24 Vict, c. 127 ; 33 and 34 Vict,, c. 28. As to attorney, not exempt by privilege from County Court, see 12 and 13 Vict., c, 101, s, 18, As to practice as attorney on common law side of Court of Chancery, see 12 and 13 Vict., c. 109, • As to when attorney to be heard in County Court, see 15 and 16 Vict,, c. 54, o. 10, As to admission of colonial attorney to practice in England, see 20 and 21 Vict., c. 39. As to lien of attorney for costs on property recovered and interest on costs, see 23 and 24 Vict., c. 127. As to registry of appointment of attorney, as commissioners to take oaths, affidavits, acknowledgments, Ac, see 23 and 24 Vict., c. 127. ,r As to appointment of attornies by company, out of United Kingdom, see 25 and 26 Vict, c. 89, s. 55 ; 27 and 28 Vict., c. 19. : As to agreement by attorney with client for remuneration, see 33 and 34 Vict., c. 28, ss. 1-15. ,„ J „, . ^ . As to power of attorney to take security for future costs, see 33 and 34 Vict., e- 28, 8. 16. . _x oo J : As to power of attorney to act as proctor, except in certam courts, see 33 and 34 Vict, c. 28, s. 20. ^ .^ Ab to taxation at bill of attorney, for business of samtary authority, see 35 and 36 Vict., c. 79, s. SO. Digitized by Microsoft® rgS -NOTES, As to recovery, tuxation, and lUUDunt of costs of agent or attorney on piiWfl bills (I.) in House of Commons, boo 10 iind 11 Vict., c. 69; (11.) in House of Juorda, see 12 and 13, Vict., c. 78. As to disqualification of attorney or proctor as Justice of the Peace in county ■where practising, see 34 and 35 Vict., o. 18. . ,, As to taxation and payment of costs of attorney after death of lunatic, see 23 and 24 Vict., c. 127, s. 29. As to when attorney may be admitted as notary public, see 3 and 4 WilL lY., B. 70. As to admission of proctor and of ai-ticled clerk of, as attorney or solicitor, see 20 and 21 Vict., c, 77, ss. 43-44. As to stamp duty for admission of colonial attorney in England, see 20 and 21 Vict., 0. 39, s. 6. As to stamp duties, special regulation in case of (I.) certificate of attorney and others, see 33 and 34, Vict., c. 97, ss. 59-64 ; (II.) letters of attorney, proxie and note papers, see 33 and 34 Vict., c. 97, ss. 102-104. NOTE 111.— Position of Lord ChauoeUor.— {§ 94, p. 61.) Precedence. — By 31 Heii. VIII., c. 10, he has precedence above all temporal peers, except the King's sons, nephews, and grandsons, whether he be a peer or a commoner. If he be a peer he ought regularly to be placed at the top of the Duke's bench on the left of the throne ; and if a commoner, upon " the upper- most sack in the Parliament Chamber, called the Lord Chancellor's Woolsack." For convenience here he generally sits, though a peer, then he puts the question and acts as prolocutor ; but this place is not considered within the House, ajid when he is to join in debate as a peer, he leaves the woolsack and stands 'in front of his proper seat, at the top of the Duke's' bench (Lamb, L C 1. 16). Appointment. — The appointment to the ottice (which is not affected by this Act) in very remote times was by patent or ^vrit of Privy Seal, or by suspending the Great Seal by a chain round his neck (see 4 Just, 87 ; Camden, p. 131), but for many ages the Sovereign has conferred the office by simply deUvering the Great Seal to the person who is to hold it, verbally addressing him by the title which he is to bear. He then instantly takes the oaths (see note to § 9), and is clothed with all the autliority of the office, although usually before entering upon the public exercise of it, he has been installed in it mth great pomp and solemnity. Tenure of Office.— The proper tenure of office is during pleasure, and it is de- termined by the voluntary surrender of the Great Seal into the hands of the Sovereign, or by his demanding it in person, or sending a messenger for it with s, warrant under the Pi-ivy Seal or sign manual. Miqiiette.—'By a standing order of the House of Lords the Lord Chancellor, when addressing their lordships, is to be uncovered ; but he is covered when' he addresses others, including a deputation of the Commons. 'Wlien he appears in his o^cial capacity in the presence of the Sovereign, or receives messengers of the House of Commons at the bar of the House of Lords, he bears in his hand the purse containing (or supposed to contain > the Great Seal. On other occa- sions it is canied by liis purse bearer, or lies before him as the emblem of his authority. 'When he goes .before a Committee of the House of Commons he wears his robes, and is attended by his ma«e bearer and purse bearer. Being seated, he puts on his hat to assert the dignity of the Upper Houso, and then having uncovered, give his evidence. Although he no longer addresses the two Houses at the opening and close of a Session of Parliament, he stUl is tlio bearer of the Royal Speech, which, kneeling, he delivers into the hand of tlie Sovereign. When the Piince of Wales is to take tlje oaths for any purpose in the Court of (Chancery, the Lord Chancellor meets him as he approaches Westminster Hall, and waits upon him into Court. Tlie Prince's Chancellor holds the boolc, and the oaths are read by the Master of the RoUm. The Lord Chancellor sits covered, while the oaths are administered' the Bar standing. The Lord Chancellor then waits on the Prince to the end of Westmmster Hall (Dickens XXIX i. When a younger son of the King is to take the oaths, the Lord Chancellor meets him at the stops leading from the Hall to - the Court, and conducts liim into Court. The Master of the Rolls reads, the oaths, and the Senior Master in Chancery holding the book. His Lordship sits Digitized by Microsoft® COMMISSIONERS OF HER MAJESTY'S TREASURY. ,.199 emrered, tlie Ba,r stsinding. Ho then uncovers, takes the purse in. his hand, and ' attends His RojTil HiglUiess down the steps into the Hall (Dickens XXX). When Peers take the oaths before the Loi-d Chancellor the Deputy-Usher holds the books, while a Deputy of the Clerk of the Cro'vvn reads the oaths. The Lord Chancellor sits covered dui-ing the time the Peers are in Court, except at their enti-ance and departure, when he rises and bows to them (Dickens XXXTl). When the Lord Mayor of London comes into the Court of Chancery on Lord Mayor's-day, and by the Recorder invites the Lord Chancellor to dinner at Guildhall, the Lord Chancellor remains covered, and does not return any ajiswer to the invitation (Camp Chan. I., 28). Apptrrel. — By stat. 24, Hen. VIII., c. 13, he is entitled " to weare in his apparel! velvet satene and other silkes of any colours eacejote purpure, and any manner of furres except cloke genettes.*' NOTE 112'.— Commissioners of Her Majesty's Treasury.— (§ 100, p. 61.) The- principal statutes in couuectipn with the Commissioners are as follows : — As to powei-s of Commissioners of Her Majesty's Treasury in Scotland, see 6 Ann, c. 53. As to offices of Lord High Treasurer of Great Britain and of Ireland united, end may be executed' by commission, and two Commissioners for Ireland, see 56 Geo. III., c 9S. As to all officers of public revenue under control of Commissioners of Her Majesty's Treasury, see .56 Geo. III., c. ^'^. As to accounts to be laid before Pai'liament by Commissioners of Her Majesty's Treasury, see 56 Geo. HI., c. 98. .43 to powers of Commissioners of Her Majesty's Treasury as to revenues of CroAvn in Scotland, see 5 and 6 Will. IV., c. 58. As to sisnatuj'es of two Conmiissioners of Her Majesty's Treasury sufficient see 12 and 13 Vict., c. 89. As to powers of Commissionei"s of Her Majesty's Treasury as to certain pay- ments out of, and to public moneys, see 17 and 18 Vict. c. 94. As to limitation of amount, and application of chest fund of Commissioners ■ of Her Majesty's Treasury, see 24 and 2.3 Vict., c. 12r ; 36 and 'M Vict., c. 5^. As to credits for supply services, issues to principal accountants, regulation of, and powers as to audit of accounts of public accountants, and other quasi — public accounts, see £M) ami 30 Vict., c. 39. As to interpretation of Act of Parliament, " Commissioners of Her Jlajesty'^ Treasury," see 53 Geo. III., c. 98. As to return of Hnes, forfeitures, and recognizances by Clerk of Parliamenirot House of Commons, by officers of common law court, coroners, clerks of assize, of market, of commissions, A;c., and to-y thereof for commissioners of Ti-easury, see 3 and 4 WiU. IV., c. 99 ; 2-2 and 2:3 Vict., c. 21. NOTE 113. -Act of Parliament — (§ 100, p. 62.) The principal statutes in connection with Acts of Parliament are as follows :— As to Royal assent to Act of Parliament, see 33 Hen. VIII., c. 21. As to Act of Parhament relating to Court of Request or Concience to ba public, see 27 Geo. II., c. 16. , . 1 j , ^ . As to indoreement on Act of Parliament of date of Royal Assent, and date of commencement of operation, see 33 Geo. III., c. 13. As to Queen' Printers copies of English and Irish Arts of Parhament before 1801, evidence in the other coimtry, see 41 Geo. HI., c. 90. s. 9. A3 to effect on expirln.9; Act of Parliament, of continuing Act passed after the expiration, see 48 Geo. in., c. 106. ^ ^ . ,.j x . ... , As to reference to deceased Sovereign, as livms not to invaUdate Act of ParUament, see 11 Geo. IV., audi WUl. IV., c. 71 ; 7 Will. IV., and 1 Vict., c, 60. As to division of Act of Parliament into sections without enacting words, see 13andl4Vict., c. 2L . ', 1 , ,r * 01 As to citation in Act of Parliament of pnor Act, see 13 and 14 Vict., c. M. As to repealed Act not revived by repeal of repealing Act, see 13 and 14 Viot.^ 'e. 3L Digitized by Microsoft® aOO NOTES. As to cpntinaance of repealed Act of Parliament untfl Biibstttuted pruT^on* come inio force, eee 13 and 14 Vict., c. 21. As to Act of Parliament to be public unless contrary declared, see 13 and 14 Vict., c. 21. As to reference by Church Building Commissioners to sections of Acts of Parliament by numbers, see 7 and 8 Vict., c. 56, b. 5. As to evidence of cenain official and public certificates, ofiQcial documenf^ proceedings of company, bye law, registers, die, made admissabie by Act- of Parliament receivable without proof of seal or stamp, see 8 and 9 Vict., c. 113. As to confirmation of Acta of Parliament, notwithstanding defect of writs, nee 12 Chas II., c. 1 ; 1 WUl. and Mar., c. 1 ; 2 Will, and Mar., c. 1. INTERPRETATION OP WORDS. " England," including Wales and Berwick-upon-Tweed, see 20 Geo. II., c, 42.. *' Commissioners of His Majesty's Treasury," see 56 Geo. III., c. 98. "GaJlou,*' in Excise Acts, see 6 Geo. IV., c. 58, s. 6. Masculine, plural, ajid singular words, &c., in all criminal statutes, see 7 and 8 Geo. IV., c. 28. "England," "Great Britain," and "United Kingdom," in Excise Acts, see 7 and 8 Geo. IV., c. 53, s. 3. Masculine and singular words, and of " writing," &C., in Excise Acts, see 4 and 6 WiU. IV., c. 51, s. 30. Acts requiring publication of notices in Church, see 7 Will. IV., and 1 Vict., c. 45. Division of county, including Ely, see 7 WiU. IV^ and 1 Vict., c. 53. -''Spirits," in Excise Acts, see 11 and 12 Vict.,, c. 122, s. 25. Various terms as to Excise stamps and taxes in Acts and documents after establishment of Inland Revenue office, see 12 and 13 Vict., c. 1, s, 17. Act requiring signature of three Commissioners of the Treasury, see 12 and 13 Vict., 0. 89. Masculine, plural, and singular words, and of "month." "county," "land," "oath," "swear," "affidavit," in, see 13 and 14 Vict., c. 21. " Municipal Corporations in Ei^land," see 16 and 17 Vict., c. 79. "Legally or duly qualified medical practitioner," see 21 and 22 Vict., c. 90, s. 34. Acts referring to 4 and 5 Will. IV., c. 24 (superannuation), see 22 Vict., c. 26. " The Board of Trade," see 24 and 25 Vict., c. 47. Division of County as regards Sussex, see 28 and 29 Vict., c. 37. " County Court," see 30 and 31 Vict., c. 142, s. 35. *' United Church of England and IrelaJid,"in acts and documents, &c., see 32 and 33 Vict., c. 42, s. 69. "Poor Law Board," "Secretary of State," and "Privy Council," in various Acts, &c., after establishment of Local Government Board, see 34 and 35 Vict., c. 70, s. 7. NOTE 114.- Writ.— (E.P. 2, p. 65 ) Although the jn'actioe of the Courts is to a very great extent altered, and with it many of the provisions respecting writs, the various statutes in force at the parsing of the Judicature Act on the subject of writs, may be found useful by the student, if not by the practitioner. The principal statutes connected with this subject are as follows : — As to time for delivery of writ before justices, see 13 Edw. 1. (Stat. West.) e. 10. As to false return to writ, see 13 Edw. I. (Stat. West), t. 39 ; 28 Edw. I. (,Art. sup. Cart.), c. 16. As to writ to be provided for suitors in all cases, see 13 Edw. I. (Art. mm. Cart.), c. 50. As to writs, none touching the common law to go forth under any of the petty seal, see 28 Edw. I. (Art. sup. Cart.),e. 6. As to writ to be in King's name, see 27 Hen. VIII., c. 24. As to description of defendant in writ, see 1 Hen. V., c. 5 ; 5 Eliz., c. 23. Digitized by Microsoft® WRIT. 201 fsuite, see 5 6eo. II., c. 27. As to abolition of Tiurlous writs, see 3 and 4 Will. IV., s. 27, s. 36 ; 23 and 24 Viot.,.c. 126. As to sealing of Tmt on abolition of separate seal ofBce of Queen's Bench and Commen Pleas, see 8 and 9 Vict., o. 34. As to form, issue, renewal, &c., of writ for coi^mencenient of actions^ and duties of attorney, with respect to them, see 15 and 16 Vict., c 76, ss. 2-25. As to service of writ in and out of jurisdiction, see 15, and 16 Vict., o. 76, ss. 14-25. As to indorsement on writ of particulars of demand, see 15 and 16 Vict., c. 76, s. 25. As to new forms of writ, see 15 and 16 Vict., c. 76, s. 224 ; 17 and 18 Vict., c. 125, s. 98 ; 23 and 24 Vict., c. 126.. As to new forms of writ on revemie side oJ Bxche^uer, see 22 and 23 Vict., c. 21 ; 28 and 29 Vict., c. 104. As to priority of writ issuing from diiferent courts, see 19 and 20 Vict., c. IDS, .fl.47. As to amendment of writ, pleading, <&c., on account of misjoinder of parties at trial, or on plea of abatement, see 15 and 16 Vict., c. 76, ss. 34-9 ; 23 and 24 Vict., c. 126. As to writ for arrest of crunlnal In one county when Indicted in another, see 5 Edw. III., c. 11. As to writ of capias for arrest of felon, see 20 Edw. III., st. 5i o. 14. As to giving bail by person brought up on writ of habeas corpus, see 56 Geo. III., c. 100. , As to writ of execution to fix bail returnable in vacation, see 17 and IS Vict., c. 125, s. 90. " As to service of writs in detached parts of county, see 2 and 3 Will. IV.j c. 39- As to execution of judgment In Inferior Court, restrictions as to staying "by ■writ of error, see 19 Geo. III., o. 70 ; 7 and 8 Geo. IV., c. 71. As to writs of oxecution, see 1 and 2 Vict., c. 110. As to issue and renewal of writs for execution on common law judgment, sea 15 and 16 Vict., c. 76 ; 17 and 18 Vict., c. 125, s. 94. Digitized by Microsoft® RULES OF COURT. RULES OF COURT UNDER THE Supreme Court of Judicature Act, 1873, 36 and 37 Vict., c. 66. [Note. — Where no other provision is made by the Act or these rules the present procedure and practice remain infoi'ce.} ORDER I. ORDER I Wn'i of Summons and Procedure, ="°''8. affidavit made by the plaintiff or one of the plaintiffs in verification of the indorsement on the writ. 11. In Admiralty actions in rem no writ of sum- Affidavits in mons shall issue until an affidavit by the Plaintiff or acttons S his agent has been filed, and the following provi- ■^«m- sions 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. (b.) In an action of wages the affidavit shall state flie- national character of the vessel proceeded against ; and if against a foreign vessel, that notice of Digitized by Microsoft® 2o8 RULES OF COURT. iPiiTa '^^ institution of the action has be given to the o. V. ■ Consul of the State to which the vessel belongs, if __5li_ there be one resident in London [a copy of the notice shall be annexed to th£ affidavit\ (c). In an action of bottomry, the bottomry bond, and if in a foreign language also a notarial translation thereof, shall be produced for the in- spection 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. (^. 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, jud'ema ('^)- '^'^^ Court Of Judge may in any case, if he waive think fit, allow the writ of summons to issue although affidavit, to!, jjjg 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. Admiralty 12. If, when any property is under arrest in Son. Admiralty, a second or subsequent action is in- stituted against the same property, the solicitor in such second action may, subject to the pre- ceding Rules, take out a writ of summons in rem and cause a caveat against the release of the pro- perty to be entered in the Caveat Release Book hereinafter mentioned. ORDER V. Concurrent Writs. Issue of ooa- *• The plaintiff in any action may, at the time eumnt writs of or at any time during twelve months after the issu- WI16n DOW • ■ • • and for how ing of the Original writ of summons, issue one or '""K- more concurrent writ or writs, each concurrent writ to bear teste of the same day as the ori- ginal writ, and to be marked with a seal bearing the word " concurrent," and the date of issuii^ the concurrent writ ; and such seal shall be im- Digitized by Microsoft® IQISCLOStTRE BY SOLICITORS & PLAINTIFFS. 20^ pressed upon the writ by the proper officer : Pro- ^ ^-^ vided always, that such concurrent writ or writs o'. vi." Aall only be in force for the period during which ^" ^' ^' . the original writ in such action shall be in i" 'o™ *«'■ f same period ■tuAi^c. as writ. 2. A writ for service within the jurisdiction ^^.j^^, ^j^^j^ may be issued and marked as a concurrent writ concurrent with one for service, or whereof notice in lieu of ^t''o?"'^° service is to be given, out of the jurisdiction ; and jurisdiction a writ for service, or whereof notice in lieu of versa? service is to be given, out of the jurisdiction may be issued and marked as a concurrent writ with one for service within the jurisdiction. ORDER VI. Disclosure by Solicitors and Plaintiffs. 1. Every solicitor whose name shall be indorsed Endorsed on any vmt of summons shall> on demand in decS.re'^ii" writing made by or on behalf of any defendant P"»y *<• ™'* who has been served therewith or has appeared thereto, declare forthwith whether such writ has been issued by him or with his authority or privity 5 ■arid if such solicitor shall declare that the writ was jj not privy not issued by him or with his authority or privity, s*ay.of pro- all, proceedings upon the same shall be stayed, "^^ "^" and no further proceedings shall be taken there- upon without leave of the Court or a Judge. 2. When a writ is sued by partners in the ^'^I'^ia,^ name of their firm, the plaintiffs or their soUcitors «ffs to de- , ,, , / ^ *^ . > ,' , , ,^ Clare part- shall, on demand m writing by or on behalt ners names of any defendant, declare forthwith the names ^^^533^3 and' 'plaj:es of residence of all the persoj^is constituting" the firm. And if the plaintiffs on pain of of their solicitors shall fail to comply, with such s'^."* Pf* demand, all proceedings in the action may,, upon "^ "^ ai! application for that purpose, be stayed upon sufch terms as the Court or a Judge maiy direct. ASd When the names of the partners are so declared, eoSued hi the action shall proceed in the ganje manner „an^ nj™ oi X!a.€ kme ' cbrisequenCdS in' all respect's shall follow ^ Digitized by Microsoft® j^ RULES OF COURT. O.VII. R. 1-2. as if they had been named as the plamtiffs m the writ. But all proceedings shall, nevertheless, con- tinue in the name of the firm. Writ to be in force twelve months. Judge or District Begistrar may renew writ. Form of memoran-. dum for renewal. Seal of Court evi- dence of re- newal. ORDER VII. Renewal of Writ. 1. No 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 such defendant, or for other good reason may order that the original or concurrent writ of summons be renewed for six months from t^e date of such renewal, and so from time to time dur- ing 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 piu-pose at the proper office, and to be impressed upon the writ by the proper officer, upon delivery to him by the plain- tiff or his solicitor of a memorandum in Form No. 5 in Schedule (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 j3ie time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons. 2. The production of a writ of summons purport- ing to be marked with the seal of the Court, show- ing the same to have been renewed in manner aforesaid shall be sufficient evidence of its having been so renewed, and of the commencement of flie action as of the fhrst date of such renewed writ for all purposes. Digitized by Microsoft® SERVICE OF WRIT OF SUMMONS. 211 ORDER VIII. ^rT™.- Service of Writ of Summons. I. ON PARTICULAR DEFENDANTS. 1. When husband and wife are both defendants b^ndaSd to the action service on the husband shall be wife, deemed good service on the wife, but the Court or a Judge may order that the wife shall be served with or without dispensing with service on the husband. 2. When an infant is a defendant to the action °° ™'*°*- service on his or her father or guardian, or if none then upon the person with whom the infant resides or under whose care he or she is shall, unless the Court or Judge otherwise orders, be deemed good service on the infant ; provided that the Court or Judge niay order that service made or to be made (5h the infant shall be deemed good service. 3. When a lunatic or person of unsound mind 0'i'"»='*i<=3 not so found by inquisition is a defendant to the found, action service on the committee of the lunatic or on I the person with whom the person of unsound mind t tesides or under whose care he or she is shall, unless the Court or Judge otherwise orders, be deemed good service on such defendant. 2. ON PARTNERS AND OTHER BODIES. 4. Where partners are sued in the name of their onpartuera , flrm, the writ shall be served either upon any one nameof or more of the partners or at the principal place ^™- !^,^thin the jurisdiction of the business of the partner- - ship upon any person having at the time of service ,-the control or management of the partnership business there ; and, subject to the Rules herein- after contained, such service shall be deemed good service upon the firm. 5. Whenever, by any statute, provision is made '^^^^ for service of any writ of summons, bill, petition, or provided by •.1 ' r~, i- ™y statute. ,^ 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 Digitized by Microsoft® 212 RULES OF COURT. b'. 5^ persons, whether corporate or otherwise, every writ — ^— — -of summons may be served in the manner so prb- vided. 3. IN PARTICULAR ACTIONS. For pojsos- 6. Service of a writ of summons in an action to ^°t land, recover land may, in case of vacant possession, when it cannot otherwise be effected, be made by postmg a copy of the writ upon the door of the dweUinghouse or other conspicuous part of the property. In admiralty 7, In Admiralty actions in rem, the writ shall be J^mrsei^oe Served by the Marshal or his substitutes, whether by msmhai. the property to be arrested be situate within the Port of London or elsewhere within the jurisdiction of the Court, and the solicitor issuing the writ shall, within six days from the service thereof, file the same in the registry. In admiralty 3 jjj Admiralty actions in rem service of a writ actions .•',..., i_ J in rem iiow of summons against ship, freight, or cargo on board l&ot^ is to be effected by the marshal or his officer nailing 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 process, leaving a true copy of it nailed or fixed in its place. iandeI°or 9- ^^ ^'^ Cargo has been landed or transhipped, transiiipped. service of the writ of summons to arrest the cargo and freight shall be effected by placing the writ for a short time on the cargo, and on taking off the process by leaving a true copy upon it. fused tc? "' i°- If t^s cargo be in the custody of a person who oaigo. will not permit access to it, service of the writ may be made upon the custodian. GENERALLY. Endone- IX. The pcrson serving a writ of summons shall, "™imeof within. three days at most after such service, in- servioe. dorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall j^j5,,jt not be at liberty, in case of non-appearance, to thereon. proceed by default j and every affidavit of service Digitized by Microsoft® SERVICE OUT OF THE JURISDICTION-. ZIJ of such writ shall mention the day on which such ^ ^ indorsement was made. O.'x. B. 1—3. ORDER IX. Substituted Service. Every application to the Court, or a Judge, AiMaTit to under Rule 5 of the Schedule to the said Act, for pS^n ''''" an order for substituted or other service, or for "'"i"^^-^' the substitution of notice for service, shall be sup- ported by an affidavit setting forth the grounds upon, which the application is made. ORDER X. Service out of the jurisdiction. 1. Service out of the jurisdiction of a writ ofwhensar- summons or notice of a writ of summons may be Ju^dioMon' allowed by the Court or a Judge whenever the whole may be or any part of the subject-matter of the action is "** " land or stock, or other property situate within the jurisdiction, or any act, deed, will, or thing affecting such land, stock, or property, and whenever the contract which is sought to be enforced or rescinded, dissolved, annulled, or otherwise affected in any such action, or for the breach whereof damages or other relief are or is demanded in such action, was made or entered into within the jurisdiction, and when- ever there has been a breach within the jurisdiction of any contract wherever made, and whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was or is to be done or is situate within the juris- diction. 2. In probate actions service of a writ of sum- ij^.p^''**^ mons 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 2^^^ °t?' such writ or notice on a defendant out of the juris- ffiv™ on application. Digitized by Microsoft® 214 RULES OF COURT. E?^5. diction ghall be supported by evidence, by affidavit, E^'i-s" °^ otherwise, showing in what place or country — : l_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 ser- vice or give such 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. Notices to be e Notice in lieu of service shall be given in writs. the manner in which writs of summons are served Order to Lmit time for appear- ance. When in London. When in District Eegisfciy. When in either. When action to proceed in district registry. When action to proceed in Loudon. ORDER XL Appearance. 1. Except in the cases otherwise provided for by these rules a defendant shall enter his appearance in London. 2. If any defendant to a writ issued in a district registry resides or carries on business within the district, he shall appear in the district registry. 3. If any defendant neither resides nor carries on business in the district, he may appear either in the district registry or in London. 4. If a sole defendant appears, or all the defend- ants appear in the district registry, or if all the defendants who appear in the district registry and the others make default in app)earance, then, subject to the power of removal herein-after pro- vided, the action shall proceed in the district registry. 5. If the defendant appears, or any of the defend- ants 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 Digitized by Microsoft® APPEARANCE. 215 action may proceed in the district registry notwith- ^5^3 standing such appearance in London. 6. A defendant shall enter his appearance to a Memoran- writ of summons by delivering to the proper officer p^noe^''" a memorandum in writing, dated on the day of oontsnts. the delivering the same, and containing the name of the defendant's solicitor, or stating that the defendant defends in person. ,'7. The solicitor of a defendant appearing by a |?ice*of''* solicitor shall state in such memorandum his place ^!'°''V"* of business, and, if the appearance is entered in the service. London office, a place, to be called his address for service, which shall not be more than three miles from Temple Bar, and, if the appearance is entered in a district registry, a place, to be called his address for service, which shall be within the district. 8. A defendant appearing in person shall state 'wiion de- in such memorandum his address, and, if the appear- appears ance is entered in the London office, a place, to be ™ person, called his address for service, which shall not be more than three mUes from Temple Bar, and if the appearance is entered in a district registay, a places to be called his address for service, which shall be within the district. 9. If the memorandum does not contain such a^o°en' or address, it shall not be received ; and if any such flctwious address shall be illusory or fictitious, the appear- °'"''™ • ance may be set aside by the Court or a Judge, on the application of the plaintiff. 10. The Memorandum of Appearance shall be ^e™ ren- in the Form No. 6, Schedule (A), Part I, withdum- such variations a-s the circumstances of the case may require. 11. Upon receipt of a Memorandum of Appear- f^p'^^..^.. ance, the officer shall forthwith enter the appear- ance in the cause book. 12. Where partners are sued in the name of their Partnerato , 1 11 -J- -J II • ii. • appear mdl.. firm, they shall appear mdividually m their own viduaUy.. names. But all subsequent proceedings shall, nevertheless, continue in the name of the firm. tw ^ f h 13. If two or more defendants in the same action. anfaapp'^I Digitized by IVIicl-osoft® 2l6 RULES OF COURT. E. i3— 20. shall appear by the same solicitor and at the sarrie jj, by same t'™^' ^^^ names of all the defendants so appear- soiieitor. ing shall be inserted in one memorandum. Solicitor 14. A solicitor not entering an appearance in undjtaliiig pirsuance of his written undertaking so to do on. to appear, behalf of any defendant shall be liable to an attachment. BPpelSnoe. ^S- -^ defendant may appear at any time before judgment. If he appear at any time after the time limited for appearance he shall, on the same day, give notice thereof to the plaintiffs solicitor, or to the plaintiff himself if he sues in person,, and he shall not, unless the Court or a Judge other- wise orders, be entitled to any further time for delivering his defence, or for any other purpose,. In probate ^^^^ ^ ^ ^^^ appeared according to the writ, notionsi i6i In probate actions any person not named im 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. action"in ^ 1 7- In an Admiralty actiou in rem any person "«■"• not named in the writ may intervene and appear as^ heretofore, on filing an affidavit lowing that he is interested in the res under arrest, or in the fund in the Registry, of land?™"^ p8- Any person not named as a defendant in a writ of summons for the recovery of land may by Appearance leave of the Court or Judge appear and defend, on poaSn'" filing an affidavit showing that he is in possession not a party, of the land either by himself or his tenant. Appearance ^9- Any person appearing to defend an action of landiori for the recovery of land as landlord in respect of property whereof he is in possession only by his. tenant, shall state in his appearance that he appears^ as landlord ^a^Mce*"" 20. Where a person not named as defendant in rot™S™ ^"^ ^^^ °^ summons for the recovery of land has- appe"™" obtained leave of the Court or Judge to appear and defend, he shall enter an appearance according ta the foregoing rules, intituled in the action against the party or parties named in the writ as defendant Digitized by Microsoft® DEFAULT OF APPEARANCE. 217 or defendants, and shall forthwith give notice of jj^^Sg. such appearance to the plaintiffs solicitor, or to the b. Xii. plaintiff if he sues in person, and shall in all sub- ^'^' sequent proceedings be named as a party defendant Notice of to the action. appearance. 21. Any person appearing to a writ of summons u°ii°%f de- fer the recovery of land shall be at liberty to limit fence to part his defence to a part only of the property mentioned "' ^""^ in the writ, 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 service 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 mentibned in the last preceding ^0™ rule may be in the farm No. 7 in Part I of Schedule °°'"'*' A hereto, with such variations as circumstances may require. ORDER XII. Default of Appearance. I. Where no appearance has been entered to a PiaintaFmagr writ of summons for a defendant who is an infant or ^S'Sfa.n^ be a person oi unsound mind not so found by inquisi- ^v°y*^ ^ ■ 1 1 • • rr 1 1 ^ T -. to infant or tion, the plamtilf may apply to the Court or a Judge lunatic. for an order that some proper person be assigned guardian erf 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 ap- plication that the writ of summons was duly served, and that notice of such application was after the expiration of the time allowed for appear- ance, and at least six clear days before the day in such notice named for hearing the application, prenmi. served upon or left at the dwelling-house of the naries toap- person with whom or under whose care such de- P'^'=*''°"- fendant was at the time of serving such writ of summons, and also (in the case of such defendant beiiag an infant not residing with or under the care Digitized by Microsoft® 2l8 RULES OF COURT. o. xii: R 1-5. Affidavit of of his father of 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. 2. Where any defendant fails to appear to a uX/r. p. writ of summons, and the plaintiff is desirous of '' *■ proceeding upon default of appearance under Rule 7 or 8 of the Schedule to the said Act or under any of the following Rules of this order, he shall, before taking such proceeding upon default, file an affidavit of service, or of notice in lieu of service, as the case may be. 3. Where there are several defendants to a writ specially indorsed for a debt or liquidated demand in money, under Rule 7 of the Schedule to the said Act, and one or more of them appear to the writ, and another or others of them do not appear, the plaintiff may enter final judgment against such as have not appeared, and may issue execution upon such judgment without prejudice to his right to proceed with his action against such as have appeared. 4. Where the defendant fails to appear to the writ of summons and the writ is not specially in- dorsed, but the plaintiffs claim is for a debt or li- quidated demand only, no statement of claim need be delivered, but the plaintiff may file an affidavit of service or notice in lieu of service, as the case may be, and a statement of the particulars of his claim in respect of the causes of action stated in the indorsement upon the writ, and may, after the expira- tion of eight days, enter final judgment for the amount shown thereby and costs to be taxed, pro- vided that the amount shall not be more than the sum indorsed upon the writ besides costs. 5. Where the defendant fails to appear to the writ ment'by^de- of summons and the plaintiffs claim is not for a S damag?s'° debt or hqui^ated demand only, but for detention of goods and pecuniary damages, or either of them, no statement of claim need be delivered, but inter- locutory judgment may be entered and a writ of Judgment against de- faulting dC' fendants under R. R 7. ■when one appears. Judgment by default when claim is for debt. Interlocu- Digitized by Microsoft® DEFAULT OF APPEARANCE. 219 inquiry shall issue to assess the value of the goods ^fl^g and the damages, or the damages only, as the case : may be, in respect of the causes of action disclosed mqui?y. by the indorsement on the writ of summons. But the Court or a Judge may order that, instead of a writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way in which any question arising in an action may be tried. 6. In case no appearance shall be entered in an . , action for the recovery of land, withm the time by default in limited for appearance, or if an appearance be entered recnve/y'of but the defence be hmited to part only, the plaintiff laud- shall be at liberty to enter a judgment that the person whose title is asserted in the writ shall recover pos- session of the land, or of the part thereof to which the defence does not apply. 7. Where the plaintiff has indorsed a claim for i" ™«™e mesne profits, arrears of rent, or damages for breach ^™ ' of contract, upon a writ for the recovery of land, he may enter judgment as in the last preceding Rule mentioned for the land ; and may proceed as in the other preceding Rules of this order as to such other claim so indorsed. 8. In actions assigned by the 34th section of the a"si^ei ^^ said act to the Chancery Division, and in Probate chancery actions, and in all other actions not by the Rules in pro'S' "" this order otherwise specially provided for, in case J2j,°"n'(, t™"* the party served with the writ does not appear specially within the time limited for appearance, upon P™vided£or. the filing by the plaintiff of a proper affidavit of service the action may proceed as if such party had appeared. 9. In an Admiralty action in rem, in which an proceedings appearance has not been entered, the plaintiff may Sf^mira^ty proceed as follows: — action in (a.) He may, after the expiration of twelve days "™' from the filing of the writ of summons, take out a notice of sale, to be advertised by him in two or more public journals to be from time to time appointed by the judge. (b.) After the expiration of six days from the Digitized by Microsoft® 2ZO RULES OF COURT. %,^J^' advertisement of the notice of sale in the said • journals, if an appearance has not been entered, iTpondSt the plaintiff shall file in the registry an affidavit to in admiralty the effect that the said notices have been duly rem " ™ 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 pro- perty sold. (c) If, when the motion comes before the Judge, he is satisfied that the claim is well founded he may order the property to be appraised and sold, and the proceeds to be paid into the registry. (d) If there be two or more actions by default pending against the same property, it shall not be necessary to take out a notice of sale in more than one of the actions ; but if the plaintiff in the first action does not, within eighteen days from the filing of the writ in that action, take out and adver- tise 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 regis- try 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 actionshall, if he has not previously done so, file his proofs in the registry and have the action placed on the list for hearing. (f.) In an action of possession, after the expiration of six days from the filing of the writ, if an appear- ance has not been entered, the plaintiff may, on filing in the registry a memorandum, take out a notice of proceeding in the action, to be advertised by him in two or more public journals to be from time to time appointed by the Judge. (g.) After the expiration of six days from the advertisement of the notice of proceedings 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 duly advertised with copies of the journals annexed, as also such Digitized by Microsoft® O. XII. E, 9. DEFENCE TO SPECIALLY INDORSED WRIT. 221 proofs as may be necessary to establish the action, jj g and shall have the action placed on the Ust for o.xiii. hearing. ^- 1~^ (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 accordingly. ORDER XIII. Leave to Defend where Writ specially Indorsed. 1. The application by the plaintiff for leave -^pp""*"™' to enter final judgment after appearance to a writ specially indorsed under Rule 7 of the Schedule to the said Act shall be made by summons return- able not less than two clear days after service. 2. The defendant may show cause against such J^^eSfd- application by offering to bring into Court the sum ant may indorsed on the writ, or by afiSdavit. 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 shall 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. 3. If it appear that the defence set up by the Judgment defendant applies only to a part of the plaintiff's where'de- claim ; or that any part of his claim is admitted to fence goes be due ; the plaintiff shall have judgment forthwith ™^^ '° ^ ' for such part of his claim as the defence does not apply to or as is admitted to be due, subject to such terms, if any, as to suspending execution, or the payment of the amount levied or any part thereof into Court by the Sheriff, the taxation of 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. 4. If it appears to the Judge that any defendant a^iS™ne has a good defence to or ought to be permitted to and 1^1°™ to defend the action, and that any other defendant has def. ud by ' "' other. Digitized by Microsoft® -^ RULES OF COURT. o. xin. R. 4-5. O. XIV. O. XV. B. 1—2. Terms of de^ fence. not such defence and ought not 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 executioii upon such judgment without prejudice to his right to proceed with his action against the former. 5. Leave to defend may be given unconditionally or subject to such terms as to giving security, or otherwise as the Court or a Judge maythink fit. How and when appli- cation to be made. ORDER XIV. Application for Account under Rule 8 of Schedule to the Act. An application for an account under Rule 8 of the Schedule to the said Act shall be made by summons, and be supported by an affidavit filed on behalf of the plaintiff, stating concisely the grounds of his claim to an account. The appHcation may be made at any time after the time for entering an appearance has expired. All persons maybe joined as plaintiffs Costs for misjoinder. All persons may be joined as defendants. ORDER XV. Parties. 1. Ail persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alterna- tive. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person or persons who shall not be found entitled to relief, unless the Court in disposing of the costs of the action shall otherwise direct. 2. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the altema- Digitized by Microsoft® PARTIES. 223 -tive. And judgment may be given against such r.'^Xs one cr more of the defendants as may be found to — '■ be liable, according to their respective liabilities, swithout any amendment. 3. Where an action has' been commenced in the Substitution name of the wrong person as plaintiff, or where it °J plaS. 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 is has been so commenced through a &ond fide mistake, and that it is necessary for the ,determination of the real matter in dispute so to do, order any other person or persons to be substituted or added as plaintiff plaintiffs upon such terms as may seem just. 4. Subject to the provisions of the said Act, and is and is the schedule thereto, and these rules, the provisions 3.^42, to' te^in as to parties, contained in section 42 of 15. 6-16 ^°^'^- Victoria, chapter 86, shall be in force 'as to actions in the High Court of Justice. 5. Subject as last aforesaid, in all Probate actions Probate the rules as to parties, heretofore in use in the ^iSes to be Court of Probate, shall continue to be in force. "* '°''<=*- 6. Any application to add or strike out or sub- ^pp/^"™^ stitute a plaintiff or defendant may be made to the parties. Court or a Judge at any time before trial by motion or summons, or at the trial of the action in a sum- mary manner. 7. Where a defendant is added, unless otherwise Y^f^. ^^ t 11 1 .-. -r 1 1 1 • -rr 1 'n feudant IS ordered by the Court or Judge, the plaintiff shall added, writ file an amended copy of and sue out a writ of^^j^^j^ summons, and serve such new defendant with such writ or notice in lieu of service thereof in the same manner as original defendants are served. 8. If a statement of claim has been delivered and amend- previously to such defendant beiiig added, the same ^ent'to shall unless otherwise ordered by the Court or be delivered. ' 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 be delivered to such new defendant at the , time when he is served with the writ or summons Digitized by Microsoft® 224 RULES OF COURT. ' E*'^Yi. °^ notice or afterwards, within four days after liif ; ' — : r appearance. Issue o( 9. Where a defendant claims to be entitled to J°J^'°'^_ contribution, indemnity, or other remedy or relief ■ fendant over against any person not a party to the actionj . parties'."'"'' 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 Filing. gygjj 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 Contents, notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the Court or a Judge, be served within the time limited > for delivering his statement of defence. Such ■ notice may be in the form or to the effect of the Fonn. Form No. I in Schedule (B) hereto with such i variations d.s circumstances may require, and there- statement to ''^ith shall be served a copy of the statement of be served. cli,im, Or if there be no statement of claim, then : a copy of the writ of summons in the action. piaiiiuff't'I) ^°- '^^^^ under Rule 12 of the Schedule to the s third parties said Act it is made to appear to the Court or a ■ under R.P. jmjgg a.t any time before or at the trial that a question in the action should be determined, pot • only as between the plaintiff" and defendant but as between the plaintiff and the defendant and any other person, or between any or either of them, the Court or a Judge, before or at the time of making the order for having such question determined, shall direct such notice to be given by the plaintiff at such time and to such person and in such., manner as may be thought proper, and if made at • the trial the Judge may postpone such trial as he may think fit. Dispute of 1 1. If a person not a party to the action, who is tSpMty. ^^^^'^ ^s mentioned in Rule 9, desires to dispute . the plaintiff's claim in the action as against the de- fendant on whose behalf the notice has been given, he must enter an appearance in the action within " eight days from the service of the notice. In de- Digitized by Microsoft® JOTNDER OF CAUSES OF ACTION. 22$ fault of his so doing, he shall be deemed to admit ^-^2 the validity of the judgment obtained against such o.' xVi.' defendant, whether obtained by consent or other- ^■^-^- wise. 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 12. If a person not a party to the action served MadeottrW under these Rules appears pursuant to the notice, ?hW{^tiea. the party giving the notice may apply to the Court or a Judge for directions as to the mode of having the question in the action determined; and the Court or Judge, upon the hearing of such applica- tion, may, if it shall appear desirable so to do, give the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pleadings to be delivered, or such 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 XVI. Joinder of Causes of Action. 1. No cause of action shall unless by leave of No cause ta the Court or a Judge be joined with an action for ^th "ctton the recovery of land, except claims in respect oiiorwcmets 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. 2. Claims by a trustee in bankruptcy as such S'JJ^''^'"' shall not, unless by leave of the Court or a Judge, be "'"'■ joined with any claim by him in any other capacity. Hujhjnj 3. Claims by or against husband and wife may be »n weeks iif f.er appear- ance. but judge may make order as to costs of state- ment not lequired, In probate actions. In admiralty actions in rem. In specially endorsed writs. Form ol notice. Time for delivery of further statement. Statement of claim : Provided that in no case where a defendant has appeared shall a statement be de- livered more than six weeks after the appearance has been entered unless otherwise ordered by jthe Court or a Judge. . ; (c.) Where a plaintiff delivers a statement of claim without being required to do so, the Court or a Judge may make such order as to the costs oc- casioned thereby as shall seem just, if it appears ii^SLt the delivery of a statement of claim was un- necessary or improper. 2. In Probate actions the plaintiff shall, unless otherwise ordered by the Court or a Judge, deliver his statement of claim within six weeks frQm«the entry of appearance by the defendant, or from the time limited for his appearance, in case he has made default ; but where the defendant has appeared the plaintiff shall not be compelled to deliver it until the expiration of eight days after the de- fendant has filed his affidavit as to scripts. 3. In Admiralty actions in rem the plaintiff shall, within twelve days from the appearance of the de- fendant, deliver his statement of claim. 4. Where the writ is specially indorsed, and the defendant 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 bis claim is that which appears by the indorsement upon the writ, unless the Court or a Judge shall order him to deliver a further stat^ ment. Such notice may be either written or printed or partly written and partly printefi, and may be in the form No. 3 in Schedule B. hereto, and shall be marked on the face in the same manner 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 prescjribed by Rule i of this Order. Digitized by Microsoft® DEFENCE. 235 ORDER XXI. O- f^- Defence. 1. Where a statement of claim is delivered to a Time defendant he shall deliver his defence within eight I^en state- days from the delivery of the statement of claim, ment oi or from the time limited for appearance, whichever delivered, shall be last, unless such time is extended by the Court or a Judge. 2. A defendant who has appeared in an action ,^™„ot**" and stated that he does not require the delivery of delivered, a statement of claim, and to whom a statement of claim is not delivered, may deliver a defence at any tinfe within eight days after his appearance, unless such time is extended by the Court or a Judge. 3. Where leave has been given to a defendant to when leave defend under Rule 7 in the Schedule to the Act, he fend under^ shall deliver his defence, if any, within such time ^•^- '• as shall be limited by the order giving him leave to defend, or if no time is thereby limited, then within eight days after the order. 4. Where the Court or a Judge shall be of opinion Order auid by the defence ought to have been admitted, the ^mit*^!™ Court may make such order as shall be just with not denied, respect to any extra costs occasioned by their having been denied or not admitted. 5. Where a defendant by his defence sets up any Tit'eofde- counter-claim which raises questions between him- '™°^ paSa self and the plaintiff along with any other person are deiend- pr persons, he shall add to the title of his defence oounter- a further title similar to the title in a statement of "'a™- complaint, setting forth the names of all the per- ■ . . ' sons who, if such counter-claim were to be enforced by cross action, would be defendants to ^uch 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 . tslaintiff. " 6. Where any such person as in the last pre- Such third ' ceding rule mentioned is not a party to the action, JS^oMd!* Digitized by Microsoft® Form. 236 RULES O^ COURT. E. So. he shall be summoned to appear by being served O.' XXIl! with a copy of the defence, and such service shall ^' ^' be regulated by the same rules as are herein-before 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 Schedule B hereto, or to the like effect. Appearance 7- Any person not a defendant to the action, of third yf)^Q ig served with a defence and counter-claim as par les. aforesaid, must appear thereto as if he bad been served with a writ of summons to appear in an action.' Reply by g. Any person named in a defence as a party to third parties. ^ 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. Order to g_ Where a defendant by his statement of defence counter- sets up a counter-claim, if the plaintiff or any other claim on person named in manner aforesaid as party to such application ^ . -, . i-ii oi any party, counter-claim contends that the claim thereby raised ought not to be disposed of by way of counter-claim, but in an independent action, he may at any time before reply, apply to the Court or a Judge for an order that such counter-claim may be excluded, and the Court or a Judge may, on the hearing of such application, , make such order as shall be just In probate lo. In probate actions the i>arty opposing a will acions. ^^y^ ^^j^ j^j^ defence, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses producedan 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. ORDER XXII. Reply and Subsequent Pleading. Timefoi' I. A plaintiff shall dehver his reply, if any,- "''''■ within three weeks after the defence or the last of Digitized by Microsoft® PLEADINGS. 237 the defences shall have been delivered, unless the ^,^'^ time shall be extended by the Court or a Judge. o. xkin. 2. No pleading subsequent to reply other than a e. 1—3. ' joinder of issue shall be pleaded without leave of jj^ pieadinga the Court or a Judge, and then upon such terms as after reply the Court or Judge shall think fit ^^^^°^^ 3. Subject to the last preceding rule, every Time for pleading subsequent to reply shall be delivered p^^^ ^'" within four days after the delivery of the previous pleading, unless the time shall be extended by the Court or a Judge. ORDER XXIII. C/ose of Pleadings. Assoon as either party has joined issue upon any pi,adingsto pleading of the opposite party simply without 9i™e on adding any further or other pleading thereto, the issSe.^'^ ° pleadings as between such partifes shall be deemed to be closed. ORDER XXIV. Amendment of Pleadings. I. The plaintiif may, without any leave, amend oneamend- his statement of claim once at any time before the pMntiff expiration of the time limited for reply and before J^'j^^^""* replying, or, where no defence is delivered, at any time before the expiration of four weeks from the ^ime. appearance of the defendant who shall have last appeared. - 2. A defendant who has set up in his defence Ji™«''"'^ ^ ^ , . ^. , , defendant any set-off or counter-claim may, without any leave, to amend amend such set-ofF or counter-claim at any time ^®'"°*- before the expiration of the time allowed him for pleading to the reply, and before pleading thereto, or in case there be no reply, then at any time be- fore the expiration of twenty-eight days from the filing of his defence. 3. Where any party has amended his pleading ^^^It' under either of the last two preceding rules, the ^^^™.^J^ opposite party may, within eight days after the de- out feavo. '■'• - - Digitized by Microsoft® " 238 RULES OF COURT. 's.'^sf ■ livery to him of the amended pleading, apply tS — ^ '— 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. Order to 4. Where any party has amended his pleading aSmdiS under Rule i or 2 of this order the other party may by other applv to the Court or a Judge for leave to plead or party with- ^^ ■',,._ »V--i* i- j out leave, amend his former pleadmg withm such time and upon such terms as may seem just. Order for j. In all cases not provided for by the pre' amendment Ceding rules of this order, application for leave to on terms, amend any pleading may be made by either party to the Court or a Judge in Chambers, or to the Judge at the trial of the action, and such amend- ment may be allowed upon such terms as to costs or otherwise as may seem just. Order to 6. If a party who has obtained an order for by'?apse of leave to amend a pleading delivered by him does time. not amend the same within the time limited for that purpose by the order, or if no time is thereby limited, then within fourteen 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. ■"(Tiat 7- A pleading may be amended by written j^tb™™ alterations in the pleading which has been deli- printed. vered, and by additions on paper to be interleaved therewith if necessary, unless the amendments re- quire 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, amende! "' ^" Whenever any pleading is amended, such pleadings, pleading when amended shall be marked with the date of the order, if any, under which the same Digitized by Microsoft® DEMURRER. 239 \s sp amended, and- of the day on which such °;^-^^^' aj)t)endment is : made, in manner following, viz. : o. xxv. '(Amended day of ." ^±±1_ ,, 9. Whenever a pleading is amended, such Delivery of ^mended pleading shall be delivered to the oppo- pieadmgs. site party within the time allowed for amending ihesame. "; ORDER XXV. Demurrer. 1. Any party may demur to any pleading of the By whom, opposite party, or to any part of a pleading setting joj'^hat^'^ up a distinct cause of action, ground of defence, cause. setoff, 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 tso 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. 2. A demurrer shall state specifically whether it To state is^to the whole or to apart, and if so, to what if'to'l",^!^ part, of the pleading of the opposite party. It « part, shall state some ground in law for the dernurrer, but the party demurring shall not, on the argument of the demurrer, be hmited to the ground so stated. A demurer may be in the Form i in Schedule C. Form. hereto. If there is no ground, or only a frivulous ground of demurrer stated, the Court or Judge may set aside such demurrer, with costs. Costs. ; 3. A demurrer shall be delivered in the same Delivery, manner and within the same time as any other pleading in the action. 4. A defendant desiring to demur to part of a combination statement of claim, and to put in a defence to the °nd°'™°° other part, shall combine such demurrer and de- demurrer, fence 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. "' Digitized by Microsoft® 240 RULES OF COURT. Entry of demurrer for argument. £■ ^a 5- If the party demurring desires to be at liberty ' -^ '- to plead as well as dernur to the matter demurred demuTrerto to, he may, before demurring, apply to the Court a. demurrer, q]- a Judge for an order giving him leave to do so ; and the Court or Judge, if satisfied that there is reasonable ground for the demurrer, may make an order accordingly, or may reserve leave to him to plead after the demurrer is overruled, or may make ' such other order and upon such terms as may be just. 6. When a demurrer either to the whole or part of a pleading is deUvered, 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 deUvery, 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 suflScient for the same purposes and with the same result as to costs as if it had been allowed on argument. 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 pay- ment of the costs of the demurrer. 8. Where a demurrer to the whole or part of demurrer to 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 other- wise order. 10. Where a demurrer to any pleading or part of a pleading is allowed in any case not falHng within the last preceding Rule, then (subject to the Pleadiiig;s not to be amended while demurrer pending. Costs of successful The like to statement of daim. Effect of successful demurrer in other Digitized by Microsoft® DEFAULT OF PLEADING. 24I power of the Court to allow an amendment) the §' ^^13. matter demurred to shall as between the parties to o! XXVL 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 demur- Costs of ring party shall pay to the opposite party the costs demumer. occasioned by the demurrer, unless the Court shall otherwise direct. 12. Where a demurrer is overruled the Court ^°g^J[°f may make such order and upon such terms as to mun-erover- the Court "shall seem right for allowing the de-"^ ^ murring party to raise by pleading any case he ■may be desirous to set up in opposition to the matter demurred to. 13. A demurrer shall be entered for argument Entry of by delivering to the proper officer a memorandum of entry in the Form No. 2 in Schedule C. ORDER XXVL Default of Pleading. I. If the plaintiff, being bound to deliver a state- Application ment of claim, does not deliver the same within the ^^^°f' o( time allowed for that purpose, the defendant may, statement ot at the expiration of that time, apply to the Court or °^™" a Judge to dismiss the action with costs for want of pJosecution, 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 dis- order there- missed accordingly, or may make such other order '"'■ on such terms as to the Court or Judge shall seem just. ■2. If the plaintiffs claim be only for a debt or ^^Jj^^^l" liquidated demand, and the defendant does not, ment upon within the time allowed for that purpose, deliver a *''*"'*• defence or demurrer, the plaintiff may, at the expi- ration of such time, enter final judgment for the amonnt claimed, with costs. 3. When in any such action as in the last pre- ceding Rule mentioned there are several defendants, Digitized by Microsoft® ^ 342 RULES OF COURT. O. XXVI. B. 3 -7. Betault by some defend- ants. In claim for damao;es in- terlecutory judgmenb upon default and writ of enquiry. Order to assess dam- ages Other- wise. Default by some defen- dants in action for Default in action for debt ; also for damages. In action for recovery of land. if one of them make default as mentioned in the last preceding Rule, the plaintiff may enter final judgment against the defendant so making default, and issue execution upon such judgment without prejudice to his right to proceed with his action against the other defendants. 4. If the plaintiff's claim be for detention of goods and pecuniary damages, or either of theni^ and the defendant makes default as mentioned in Rule 2, the plaintiff may enter an interlocutory judgment against the defendant, and a writ of in- quiry shall issue to assess the value of the goods, and the damages, 01 the damages only, as the case may be. But the Court or a Judge may ordeir that, instead of a writ of inquiry, the value and amount of damages, or either of them, shall be ascertained in any way in which any question arising in an action may be tried. 5. When in any such action as in Rule 4 men-' tioned there are several defendants, if one of them make default as mentioned in Rule 2, the plaintiff may entet an interlocutory judgment against the defendant so making default, and' proceed with his action against the others. And in such case, damages against the defendant making default shall be assessed at the same time with the trial of the action or issues therein against the other defend- ants, unless the Court or a Judge shall otherwise direct. 6. If the plaintiffs claim be for a debt or liqui- dated 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 in- terlocutory judgment for the value of the goods and the damages, or the damages only, as the case may be, and proceed as mentioned in Rule 4. 7. In an action for the recovery of land, if the defendant makes default as mentioned in Rule z, the Plaintiff may enter a judgment that the person Digitized by Microsoft® DEFAULT OF PLEADING. 243 ■whose title is asserted in the writ of summons shall ^ ^?^' recover possession of the land, with his costs. 8. Where the plaintiff has endorsed a claim for mesne pro- mesne profits, arrears of rent, or damages for *'^.> *?-..'^™ i_ 1 r - r 1 ,- claimed m tjreacn of contract upon a writ for ttie recovery of action lor land, if the defendant makes default as mentioned ^7"^ "' in Rule 2, or if there be more than one defendant, some or one of the defendants make such default, the plaintiff may enter judgment against the de- faulting defendant or defendants and proceed as mentioned in Rules 4 and 5. 9. In probate actions, if any defendant make de- 1" probate fault in filing and delivering a defence or demurrer, *° '°'^' the action may proceed, notwithstanding such de- fault. 10. In all other actions than those in the pre- 1" ?u <>">» ceding rules of this Order mentioned, if the de- ■*" '" fendant makes default ia delivering a defence or demurrer, the plaintiff may set down the action on motion for judgment, and such judgment shall be given as upon the statement of claim the Court shall consider the plaintiff to be entitled to. 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 Pleadings demurrer, or any party does not deliver any sub- default?™ sequent pleading, or a demurrer, within the period pleadings. 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 J?j5?^« ^. . other than between plaintiff and defendant, if any ^* '°^ party to any such issue makes default in delivering Digitized by Microsoft® 244 RULES OF COURT. E.'^^'' any pleading, the opposite party may apply to the O^xyti Court or a Judge for such judgment, if any, as —J upon the pleadings he may appear to be entitled to. And the Court may order judgment to be entered accordingly, or may make such other order as may be necessary to do complete justice between the parties. Setting aside 1 4- Any judgment by default, whether under this dejS™"'^ 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 XXVir. Payment into Court in Satisfaction. Time of pay- i. Where any action is brought for a debt or Court!" " pecuniary damages, any defendant may at any time after service of the writ, and before or at the time of delivering his defence, or by leave of th^ Court or a Judge at any later time, pay into Court a sum of money by way of satisfaction or amends in respect of any such cause of action. Payment teSiSed" ^^'^ Court shall be pleaded in the defence, and the claim or cause of action in respect of which such payment shall be made shall be specified therein. To whom to 2. Such sum of money shall be paid to the ° ^*' ■ proper bfficer, who shall give a receipt for the same. If such payment be made before delivering his de- . fence the defendant shall thereupon serve upon the piaintV plaintiff a notice that he has paid in such money, and in respect of what claim, in the Form No. 5 in the Schedule B. hereto. piymlnt°o«t 3- Money paid into Court as aforesaid shall 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 vsrritten authority unless specially required by the officer of the Court. 4. The plaintiff, if payment into Court is made before delivering a defence, may within four days Digitized by Microsoft® DISCOVERY AND INSPKCTION. 245 after receipt of notice of such payment, or if such °" ^74^' payment is first stated in a defence delivered then °^?Y|^'- may before reply, accept the same in satisfaction — ^ — of the causes of action in respect of which it is paid fccep'tinfuu in ; in which case he shall give notice to the de- and sign fendant in the Form No. 6 in Schedule (B.) hereto, Jo^Ssts.'^ 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. ORDER XXVIII. Discovery and Inspection. 1. The plaintiff may, at the time of delivering ^™m™of his statement of claim, or at any subsequent time delivering not later than the close of the pleadings, and a de- tories. ° fendant 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 pur- pose, and either party may at any time, by leave of the Court or a Judge, deliver interrogatories in writing for the examination of the opposite party or parties, or any one or more of such parties, with a note at the foot thereof, stating wliich of such interrogatories each of such persons is required to answer : Provided that no party shall deliver more oniy one set than one set of interrogatories to the same party ™ae°"' without an order for that purpose. 2. Interrogatories may be in the Form No. 7 in porm. Schedule (B) hereto, with such variations as cir- cumstances may require. 3. If any party to an action be a body corporate ^erro^w or a joint stock company, whether incorporated or feabody ' ,,ir ji. Corporate. not, or any other body of persons, empowered by Jaw to sue or to be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply at chambers for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly. Digitized by Microsoft® 246 RULES OF COURT. O XXVIII E. 4-10. Application to strike out objection- able interro- gatory. How answered. When printed, form of of answer. Objection may be taken. Application on neglect to answer. Application for discovery. Affidavit as to documents. Form, 4. Any party called upon to answer interroga- tories, whether by himself or by any member or officer, may, within four days after service of the interrogatories, apply at chambers to strike out any interrogatory, on the ground that it is scandalous or irrelevant, or is not put bona fide for the pur- poses 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 interrogatory is objectionable, may order it to be struck out. 5. Interrogatories shall be answered by affidavit to be filed within ten days, or within such further time as a Judge in chambers may allow. 6. An affidavit in answer to interrogatories shall, if exceeding three folios, be printed and may be ia the Form No. 8 in Schedule (B) hereto, with such variations as circumstances may require. 7. Any objection to answering any interrogatory, may be taken, and the ground thereof stated in the affidavit mentioned in the preceding rule. 8. 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 re- quiring him to answer or answer further either by affidavit or by viva voce examination, as the Judge may direct. 9. Any party may, without filing any affidavit, apply to a Judge in chambers for an order direct- ing 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. 10. The affidavit to be made by a party against whom such order as is mentioned in the last pre- ceding rule has been made, shall specify which, if any, of the documents therein mentioned, he ob- jects to produce, and it may be in the Form No, 9 in Schedule (B) hereto, with such variations as circumstances may require. Digitized by Microsoft® DISCOVERY AND INSPECTION. 247 11. Notice to any party to produce any docn-^^^^l^^ itients referred to in his pleading or affidavits shall ~ ^ be in the Form No. lo in Schedule (B) hereto. noSw 1 2. The party to whom such notice is given p>;oiiuoe. shall, within two days from the receipt of such Notice of notice, if all the documents therein referred to i^pe'tion. have been set forth by him in such affidavit as is mentioned in Rule iq, or if any of the documents referred to in such notice have not been set forth by him in any such affidavit, then within four days from the receipt of such notice, de- liver 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, inay be inspected at the office of his solicitor, and stating which (if any) of the documents he objects to pro- duce, and on what ground. Such notice may be in the Form No 1 1 in Schedule (B) hereto, porm. with such variations as circumstances may require. 13. If the party served with notice under Rule Default of 1 1 omits to give such notice of a time for inspec- notice. tion, or objects to give inspection, the party desiring it may apply to a Judge in Chambers for an order for inspcQtion. 14. Every application for an order for inspection AppUcatiou of documents shall be to a Judge at Chambers. ingpeotU) ° 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 docu- ments inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. 1 1;. If the party from whom discovery of any when 1 ■ J • S ■ T-i u- i i iU objection IS kind or inspection is sought objects to the same, or made to any part thereof, the Court or a Judge may, if satis- ?^p°™_'" fied that the right to the discovery or inspection sought depends on the determination of any issue Digitized by Microsoft® 248 RULES OF COURT. B^— iS °^ question in dispute in the action, or that for any other reason it is desirable that any issue or ques- tion in dispute in the action should be determined orto "^^ before deciding upon the right to the discovery or question to inspection, order that such issue or question be to toed. determined first, and reserve the question as to the discovery or inspection. M*cMe"rder ■'^- ^^ ^"y party fails to comply with any order not complied to answer interrogatories, or for discovery or in- ™*''" spection of documents, he shall be liable to attach- ment, lie shall also, if a plaintiff]^ be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court or a Judge for an order to that effect, and an order may be made accordingly. no™?rtM . ^7- Service of an order for discovery or inspec- oi order. tion made against any party on his solicitor shall be sufficient service to found an application for an attachment for disobedience to the order. But the party against whom the application for art attachment is made may show in answer to the ap- plication that he has had no notice or knowledge of the order. rf?e*Sttog 18. A solicitor upon whom an order against any soUcitor. party for discovery or inspection is served under the last rule, who neglects without reasonable ex- cuse to give notice thereof to his cHent, shall be liable to attachment, answerato . ^9- Any party may, at the trial of an action or interroga- issue, use in evidence any one or more of the tri™^ °'' aiiswers of the opposite party to interrogatories- without putting in the others : Provided always, that in such case the Judge may look at the whole of the answers,' and if he shall be of opinion that any other of them are so connected with those put in that the last-mentioned answers ought not to be used without them, he may direct them to be put in. Digitized by Microsoft® QUESTIONS OF LAW WITHOUT PLEADINGS. 249 ORDER XXIX. °B^S^' ^ T . ■ r O.XXX. Admission of Documents. R- 1—3. 1. A notice to admit documents may be in the Form of Form No. i? in Schedule (B) hereto. °°''°^- 2. An affidavit of the soUcitor in the cause, or Affidavit by his clerk, of the due signature of any admissions evldenS of made in pursuance of any notice to- admit docu- admissions. ments, and annexed to the affidavit, shall be sufficient evidence of such admissions. ORDER XXX. Questums of Laiv without Pleadings. 1. The parties may, after the writ of summons ^TuesWon* has been issued, concur in stating the questions of ot law, 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 ^^j"^^"" 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 in- ference, whether of fact or law, which might have been drawn therefrom if proved at a trial. 2. Every special case shall be printed by the How printea plaintiff, and signed by the several parties or their-™''*"'*' solicitors, and shall be filed by the plaintiff. Printed copies for the use of the Judges shall be delivered by the plaintiff. 3. No special case in an action to which a when leave married woman, infant, or person of unsound mind °«<'«^s'"7- is a party shall be set down for argument without leave of the Court or a Judge, the application, for , which must be supported by sufficient evidence that the statements contained in such special case, so Digitized by Microsoft® 250 RULES OF COURT. B. 3, 4. D. Xkx R. 1—3. Entry. Ponn. Arex of district rejjiotriea. B. 3?" f^'" ^s the same affect the interest of such married O^ xxxr. woman, infant, or person of unsound mind, are true. 4. Either party may enter a special case for argu- ment by dehvering to the proper officer a memor- andum of entry, in the Form No. 13 in Schedule (B) hereto, and also if any married woman, infant, or person of unsound mind be a party to the action, producing a copy of the order giving leave to enter the same for argument. ORDER XXXI. Proceedings in District Registries. 1. For the purpose of these rules the district of every district registry in the county of Lancaster shall mean the district thereto assigned by any order of Her Majesty in Council, and the district of every district registry elsewhere than in the county of Lancaster, shall mean a circle with a radius of tliree mdles, as the crow flies, from the registry. 2. Where an action proceeds in the district registry all proceedings, except where by these rules it is otherwise provided, or the Court or a Judge shall otherwise order, shall be taken in the district registry, down to and 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 account by reason of the default of the defendant, then down to and including such judg- ment or order ; and such judgment or order as last aforesaid shall be entered in the district registry in the proper book, in the same manner as a like judgment or order in an action proceeding in Lon- don would be entered in London. 3. Where an action proceeds in the district registry the judgment and all such orders therein as require to be entered, except such judgment or orders for account as mentioned in the last pre- ceding rule, and except orders made by the district registrar under the authority and jurisdiction vested Digitized by Microsoft® Wlixt procaedings ti7 be talsen in district registries. Wliat entries to be made in London and how. PROCEEDINGS IN DISTRICT REGISTRIES. 25 1 in him under these rules, shall be entered in Lon- % ^^' don, and an office copy of every judgment and '- order so entered shall be transmitted to the district registry to be filed with the proceedings in the aption. 4. Where an action proceeds in the district ^exeoSiMi registry all writs of execution for enforcing any judg- to issue from ment or order therein shall issue from the district registry, registry, unless the Court or a judge shall otherwise direct. 5. Where an action proceeds in a district registry ^utiionty of the district registrar may exercise all such authority '^^s'^^'^ar. and jurisdiction in respect of the action as may be exercised by a judge at chambers, except such as by these Rules a Master of the Queen's Bench, Common Pleas, or Exchequer Divisions is pre- cluded from exercising. 6. Every application to a district registrar shall Applications , j.-',^^ . ,.,=•,.. to regktrars. be made in the same manner m which applications at chambers are directed to be made by these Rules. 7.' If any matter appears to the district registrar Eeferenoety proper for the decision of a Judge, the registrar may judger"^ °* 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. 8. Any person affected by any order or decision Appeal from of a district registrar may appeal to a Judge. Such ho^. '^'"^*" 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. 9. An appeal from a district registrar shall be no No stay ot stay of proceedings unless so ordered by a Judge ^™"^ "'^■" or die registrar. 10. Every district registrar and other officer of a Registrar district registry shall be subject to the orders and coStroi o? directions of the Court or a Judge as fully as any judge, other officer of the Court, and every proceeding in a district -registry shall be subject to the control of the Court or a Judge, as fully as a like proceeding in London. Digitized by Microsoft® 252 RULES OF COURT. O. XXXI. R. 11-13. Appeals in chancery division. "When de- fendant may remove action from district registry as of riglifc. How defend- ant may remove action. 11. Every reference to a Judge by or appeal, to a Judge from a district registrar in any action in the Chancery Division shall be to the Judge to whom the action is assigned. 12. In any action which would, under the fore- going rules, proceed in the district registry, any defendant may remove the action from the district registry as of right in the cases, and within the times, following : — , , ; Where the writ is specially indorsed under sect. 7 of the schedule, 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 XIII. j 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 mentioned, and the defendant has obtained leave to defend in manner pro- vided by Order XIII. ; then such defendant may remove the action as of right at any time after the order giving him leave to defend, and before delivering a defence and before the ex- piration of the time for doing so : Where the writ is not specially indorsed any de- fendant may remove the action as of right at any time after appearance, and before deliver- ing a defence, and before the expiration of the time for doing so. 13. Any defendant desirous to remove an action as of right under the last preceding rule may do so by serving upon the other parties to the action, and delivering to the district registrar, a notice, signed by himself or his solicitor, to the effect that he desires the action to be removed to London, and the action shall be removed accordingly : Provided, that if the Court or a Judge shall be satisfied that the defendant giving such notice is a merely formal Digitized by Microsoft® TRIAL. 253 defendant, or has no substantial cause to interfere §; ^.^5. in the conduct of the action, such Court or Judge o'xxxli'. may order that the action may proceed in the dis- ^ ^~"^' trict registry notwithstanding such notice. 14. In any case not provided for by the last two Application preceding rules, any party to an action proceeding o?herTosesr iti a district registry may apply to the Court or a Judge, or to the district registrar, for an order to remove the action from the district registry to London, and such Court, Judge, or registrar, may make an order accordingly, if satisfied that there is sufficient reason lor doing so, upon such terms if any, as shall seem just 1 5. Whenever any proceedings are removed ^"JSon ot from the district registry to' London the district documenia registrar shall transmit to the proper officer of the 'oaseT""™ High Court of Justice all original documents (if any) filed in the district registry, and a copy of all entries in the books of the district registry of the proceedings in the action. ORDER XXXIL Trial. 1. Subject to the provisions of the following ^hra™o1,ioe rules, the plaintiff may, with his reply, or at any ot trial may time after the close of the pleadings, give notice of ^^ ^"'™' trial of the action, and thereby specify one of the modes mentioned in Rule 30 of the schedule to the Act. 2. If the plaintiff does not within six weeks Default by after the close of the pleadings, or within such ex- giveVotioe. tended time as a Court or Judge may allow, give notice of trial, the defendant may, before notice of trial given by the plaintiff, give notice of trial, and thereby specify one of the modes mentioned in Rule 30 of the schedule to this Act. 3. If the plaintiff or defendant desires to have ^pp^^*J''°£ the action tried in any other mode than that trial not specified in the notice of trial, he shall apply to S'notef the Court, or a Judge, for an order to that effect, Digitized by Microsoft® 854 RULES OF COURT. o.xxxn, B. 3-11 Contents of notice of trial. Form. Length of notice. Nfttice before entry. Operation of notice in London and Middlesex. Elsewhere. Hnw notice to be counter- manded. DefTOlt to enter cause after notice. Entry for trial. • 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. 4. Notice of trial shall state whether it is for the trial of the action or of issues therein ; and in actions in the Queen's Bench, Common Pleas, and Exchequer Divisions, the place and day for which it is entered for trial. It may be in the Form No. , 14 in Schedule (B), with such variations as circumstances may require. 5. Ten days' notice of trial shall be given, un- less the party to whom it is given has consented to take short notice of trial ; and shall be sufficient in all cases, unless otherwise ordered by the Court, or a Judge. Short notice of trial shall be four days' notice. 6. Notice of trial shall be given before entering the action for trial. 7. 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 expira- tion of the notice on which the action may come on for trial in its order upon the list. 8. Notice of trial elsewhere than in London or Middlesex shall be deemed to be for the first day of the then next assizes at the place for which notice of trial is given. 9. 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. 10. If the party giving notice of trial for London or Middlesex omits to enter the cause for trial on the day or day after giving notice of trial, the party to whom notice has been given may, unless the notice has been countermanded under the last rule, within four days enter the cause for trial. 11. 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 plain- tiff's entry. Digitized by Microsoft® TRIAL. 255 1?. 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 T^entry lor 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. 13. If, when an action is called on for trial, the 'wiien de- plaintiff appears, and the defendant does .not appear, 'rap^pelrlv then the plaintiff may prove his claim, so far as the '""'■ burden of proof lies upon him. 1 4. If, when an action is called on for trial, the when defendant appears, and the plaintiff does not appear, fo'ippirl''^ the defendant, if he has no counter claim, shall be entitled to judgment dismissing the action, but if he has a counter claim, then he may prove such claim so far as the burden of proof lies upon him. 15. Any verdict of judgment obtained where one Application party does not appear at the trial, may be set aside JSd|ment° by the Court or a Judge upon such terms as may obtained on seem fit, upon an application made within six days after the trial ; such application may be made either at the assizes or in Middlesex. 16. The Judge may, if he think it expedient for Adjoum- the interests of justice, postpone or adjourn the ™™'°"™'- trial for such time, and upon such terms, if any, as he shall think fit. 17. Upon the trial of an action, the Judge may, Powerof at or after such trial, direct that judgment be intfy or'" entered for any or either party, as he is by law ?on-entry oi 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 he shall think fit to impose ; or he may direct judgment not to be entered then, and leave any party to move for judg- irient. No judgment shall be entered after a trial without the order of a Court or Judge. 18. Upon every trial at the assizes, or at the Entry of Lpndon and Middlesex sitting of the Queen's f^f"^ °^ Bench, Common Plea,s, or Exchequer Division, oases, where the officer present at the trial is not the Digitized by Microsoft® 256 RULES OF COURT. O. XXXII. E. 18-25. Entry of absoiute judgment how authorised. The like when judg- ment subject to leave. Power to direct trials without jury. Power to direct trials before judge and jury. Trials with Power to order trial by com- missions under sec. S9. Trials before a referee. officer by whom judgments ought to be entered, the, associate shall enter all such findings of fact as the,, Judge may direct to be entered, and the directions,, if any, of the Judge as to judgment, and the certi-, ficates, if any, granted by the Judge, in a book, to. be kept for the purpose. 19. If the Judge shall direct that any judgment be entered for any party absolutely, the certificate, of the associate to that effect shall be a sufficient authority to the proper officer to enter judgment accordingly. 20. If the Judge shall direct that any judgment be entered for any party subject to leave to move, judgment- shall be entered accordingly upon the production of the associate's certificate. 21. The Court or a Judge may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which previously to-> the passing of the Act could, without any consent of parties, be tried without a jury. 22. The Court or a Judge may, if it shall appears 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. 23. Trials with assessors shall take place in suchi manner and upon such terms as the Court or a, Judge shall direct. 24. In any action the Court or a Judge of the division to which the action is assigned may, at ajiy time or from time to time, order the trial and deter- mination of any question or issue of fact, or partly of fact and partly of law, by any commissioner or commissioners appointed in pursuance of the 29th. section of the said Act, or at the sittings to be held; in Middlesex or London, and such question or issue shall be tried and determined accordingly. 25. Subject to any order to be made by the. Court or Judge ordering the same, evidence shall b% taken at any trial Isefore a referee, and the attend- ance of witnesses may be enforced by subpoena, Digitized by Microsoft® EVIDENCE BY AFFIDAVIT. i^'J and every such trial shall be conducted in the same bI^^t! manner, as nearly as circumstances will admit, as oxxxiii trials before a Judge of the High Court, but not so ^" ^'"^' ■as to make the tribunal of the referee a public court of justice. 26. Subject to any such order as last aforesaid, i^^^*^'* 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. 2 7. Nothing in these rules contained shall Limitatioit authorise any referee to commit any person to l\ nSw^^ prison or to enforce any order by attachment or otherwise. ORDER XXXIII. JEvidefice by Affidavit 1. Within fourteen days after a consent for taking de™veiy of evidence by affidavit as between the plaintiff and '■f^Yiff^ "*' 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 soli- citor a list thereof. 2. The defendant within fourteen days after Time for delivery of such list, or within such time as the f^JJ^^'^^L parties may agree upon, or a Judge in Chambers defendant, may allow, shall file his affidavits and deliver to the plaintiff or his solicitor a list thereof. ■?. Within seven days after the expiration of the J>°?e *<"■ . said fourteen days, or such other time as aforesaid, affidavits in the plaintiff shall file his affidavits in reply^ which "p^^- affidavits shall be 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 cros* party desiring to cross-examine a deponent who has oM^JJenu made an affidavit filed on behalf of the opposite notice and party, may serve upon the party by whom such ZT^vm. affidavit has been filed, a notice in writing, requiring the production of the deponent for cross-examina- Digitized by Microsoft® 8 58 RULKS OF COURT.' ^R^&^ tion before the Court at the trial, such notice to be O XXXIV 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 produc- ing such deponent for cross examination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production. HOW attend- g. The party to whom such notice as is men- deponent to tloned in the last preceding Rule is given, shall be compelled entitled to compel the attendance of the depoheilt for cross-examination in the same way as he might compel the attendance of a witness to be examined. Affidavits to 6. When the evidence in any action is under be printed, this order taken by affidavit, such evidence shall be printed, and the notice of trial shall be given at the same time ob times after the close of the evidence as in other cases is by these Rules provided after the close of the pleadings. ORDER XXXIV. Motion for New Trial. to?newtri°i, ^- ^ P^''^ desirous of obtaining a new trial how, and ' must apply for the same to a Divisional Court by rbtoe°d!'* motion for an order calling upon the opposite party to show cause at the expiration of eight days ft-om the date of the order, or so soon after as the case can be heard, why. a new trial should not be directed Such motion shall be made within foiu- 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 Coiu-t next after the trial, or within such extended time as the Court or a Judge may allow. wpyTrde'r. ^- f ^°Py ^^ ^"^^ o'^der shall be served on the opposite party within four days from the time of the same being made. Digitized by Microsoft® iiOTION FOR Jtr&GlilEltT; 259 ?^ 5. A new trial may be ordered on any question °^^^^ :m an action, whatever be the grounds for the new o. x±xV trial, without interfering with the finding or -^liz;^ decision upon any other question. when new 4- An order to show cause shall be a stay of orderS? *" proceedings in the action, unless the Court shall gg^^t „j \ order that it shall not be so as to the whole or any orfef to part of the action. showca-ose. ORDER XXXV. Motion for Judgment. 1. Except where by the Act of the Schedule Howjudp thereto, or by these rules, it is provided that judg- "btoLed ment may be obtained in any other manner, the judgment of the Court shall be obtained by motion for judgment. 2. Where at the trial of an action the Judge ot where jud?- a Referee has ordered- that any judgment be "^^1™!'^°°' entered subject to leave to move, the party to whom leave has been reserved shall set down the action on motion for judgment, and give notice thereof to the other parties within the time limited by the Judge in reserving leave, or if no time has been limited, within teii days after the trial. The notice of motioil Shall State the grounds of the motion, and the relief sought, and that the motion is pursuant to leave reserved. 3. Whete at the trial of an action the Judge or Motion fo* Referee abstains from directing any judgment to be when"not :„entered, the plaintiff may set down the action on biTeutered. motion for judgment. If he does not so set it down and give notice thereof to the other parties within ten days after the trial, any defendant may set down the action on motion for judgment, and give notice thereof to the other parties. 4. Where at the trial of an action before a jury Motion to the Judge has directed that any judgment be judgment entered, any party may, without any lea\ e reserved, directed to : rpove to set aside such judgment, and enter any byjudge other judgment, on • the ground that the judgment ''*'°" J""' Digitized by Microsoft® a6o RULES or court. *\?^^T' directed to Tje entered is wrong by reason of th« '- Judge having caused the finding to be entered wrongly; with reference to the finding of the jury" upon the question or questions submitted to them. Without 5. Where at the trial of an action the Judge or a ^'^^- Referee has directed that any judgment be entered; any party may, without any leave reserved, move to set aside such judgment, and to enter any other judgment, on the ground that upon the finding as entered the judgment so directed is wrong. mo™ii'*and ^- Ori every motion made under the provisions time of'hear- of the 48 th section of the Act, or under either of B°l8. ^' the last two preceding rules the order shall be an order to show cause, and shall be returnable in eight days. The motion shall be made within four days after the trial if the Divisional Court is then sitting, or within the first, four days after the com- mencement of the sitting of the Divisional Court next after the trial, or within such extended time as a Court or Judge may allow. jMu'eror" 7- Where issues have been ordered to be tried, questions of 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 motiori for judgment, and give notice thereof to the, other parties. Application 8. Where issues have been ordered to be tried. wnere some . , . ,. ^ , , . , . ' oniyof isKuea or issues Or questions of fact to be determined m any ha™ been™ rnanner, and some only of such issues or questions tried. of fact have been tried or determined, any party who considers that the result of such trial or de- termination 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 Digitized by Microsoft® ENTRY OF JUDGMENT. 26 1 leave to set down the action on motion for judg- Si.'^^^i^ ment, without waiting for such trial or determina- OXxxvi tion. 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 fact. 9. No action shall, except by leave of the Court i-eavs or 'a Judge, be set down on motion for judgment mot?o"itM after the expiration of one year from the time o"ey«"'- when the party seeking to set down the same first became entitled so to do. 10. Upon a motion for judgment, or for a new O'df "P"" trial, or any other motion made under the provi- under s. is. sions of the 48th section of the Act, the Court may, if satisfied that it has before it all the mate- rials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, iif it shall be of opinion that it has not sufficient rhate- rials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made as it may think fit 1 1. None of the rules of this order shall apply Appiici^ioni to applications under s. 40. of the Schedule to the 40! " Act, 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 plead- ings. The Court or a Judge may, on any such application, give such relief, subject to such terms, if any, as such Court or Judge may think fit. ORDER XXXVI. Entry of Judgment. I. Every judgment shall be entered by the proper Mode oi 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 Digitized by Microsoft® a 62 RULES OF COURT. °^^— Z ^ the action, such copy shall be in print, except such ^ o^^ parts (if any) of the pleadings as are by these rules E. 1, 2. ' permitted to be written. j^^j 2. Where any judgment is pronounced by the entiy when , Court or a Judge in Court, the entry of the judg^'' iySrtor nient shall be dated as of the day on which such Judge in judgment is pronounced, and the judgment shall take effect from that date, entry °fn 3" ^^ ^^^ Gases not within the last preceding rule,, other cases, the enfjy 'of judgment shall be dated as of the day on which the requisite documents are left with the ' proper officer for the purpose of such entry, and the judgment shall take effect from that date. ^mLl" 4- Where under the Act, or the Schedule thereto,^^ affidavits or thesc rules, or otherwise, it is provided that any entrroF '" judgment may be entered or signed upon the filing judgment, of any affidavit or production of any document, the officer shall examine the affidavit or document pro- duced, and if the same be regular and contain all that is by law required he shall enter judgment' accordingly. Entiyof e Where by the Act, or Schedule, or these' luagment .'^ , -^ . .' , ' on return of rules, or Otherwise, any judgment may be entered wit '"^ pursuant to any order or certificate, or return to any writ, the production of sucli order or certificate sealed with the seal of the Court, or of such re- turn, shall be a sufficient authority to the officer to enter judgment accordingly. ORDER XXXVII. Eocecution. mteotas ^- -^ judgment for the recovery by or paymeti^ Judgment to any person of money may be enforced by any of of m^ey.™* ^^^ 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 Forpayment 2. A judgment for the payment of money into totS^TOiSt. Court may be enforced by writ of sequestration, or in cases in which attachment is authorized by law, by attachment. .„. ^^ ' Digitized by Microsoft® EXECUTION. ^63 , 3. A judgment for the recovery or for the de- xXxvil livery of the possession of land may be enforced B- s-8." by writ of possession. Forrecovery 4. A judgment for the recovery of any property "' ^'^^• other than land or money may be enforced : For recovery By writ for delivery of the property : property By writ of attachment : By writ of sequestration. 5. A judgment requiring any person to do any ^ ° "^o "'•»« act other than the payment of money, or to abstain from doing anything, may be enforced by writ of attachment, or by committal. 6. In these Rules die term " writ of execution" interpreta- shall include writs of fieri facias, capias, elegit, ot'exicu^'" sequestration, and attachment, and all subsequent t;9n.'>n4 writs that may issue for giving effect thereto. And exSiln." the term " issuing execution against any party" shall mean the issuing of any such process against his person or property as under the preceding rules of this order shall be appUcable to the case. 7. Where a judgment is to the effect that any Application party is entitled to any relief subject to or upon the t?on^on°"" fulfilment of any condition or contingency, the ?°S"''*'°^*^ party so entitled may, upon the fulfilment of the con-''" ^^^' dition or contingency, and demand made upon the party against whom he is entitled to relief, apply to the Court or a Judge for leave to issue execution against such party. And the Court or Judge may, if satisfied that the right to relief has arisen ac- cording to the terms of the judgment, order that execution issue accordingly, or may direct that any issue or question necessary for the determination or 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 Execution name of the firm, execution may issue in manner *° "a^e of r ^^ ■ partners. foUowmg : — (a.) Against any property of the partners as such : (d.J Against any person who has admitted on the pleadings that he is, or has been adjudged to be a partner : Digitized by Microsoft® a64 RULES of COURT. XXXVII. C^-) Against any person who has been served, as 3 B- 8-11. partner, with the writ of summons, and has failed to appear. totesue*'°° ^^ *^^ party who has obtained judgment claims to, execution be entitled to issue execution against any other ^sonl""''" 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 dis- puted, may order that the liability of such person be tried and determined in any manner in which any issue or question in an action may be tried and determined. fop/To b*e" 9- No writ of execution shall be issued without produced on the production to the officer by whom the same Baumg. 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 ofl&cer shall be satisfied that the proper time has elapsed to- entitle the judgment creditor to execution, pracipe. lo. No 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 ta 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 s& in person. EndoTsment u. Every writ of execution shall be indorsed: mme on with the name and place of abode or office of ^el^ion. business of the solicitor actually suing otrt the same, and when the solicitor actually suing out the writ shall sue out the same as agent for another soli- citor, the name and place of abode of such other solicitor shall also be indorsed upon the writ ; and in case no solicitor shall be employed to- issue the writ, then it shall be indorsed with a memorandum expressing that the same has been sued out by the plaintiff or defendant in persor^ as the case may be. Digitized by Microsoft® EXECUTION. 265 mentioning the city, town, or parish, and also the xxxvir. name of the hamlet, street, and number of the b. 11— 15. house of such plaintiffs or defendant's residence, if any such there- be. 12. Every writ of execution shall bear date of i'"*^"'™'*'- the day on which it is issued. 13. In every case of execution the party entitled Levy of to execution may levy the poundage, fees, and p'>"'«5=««' expenses of execution, over and above the sum recovered. 14. Every writ of execution for the recovery of ^pf P™™'- • 1 1 1 , • 1 T ■ T T • 1 o£ direction money shall be mdorsed with a direction to the to sheriff, sheriff; or other officer or person to wham the writ is directed, to levy tlie money really due and pay- able and sought to be recovered under the judg- ment, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate, of 4/ percent, per annum from the time when the judgment was entered up, provided that in cases where there is an agreement between the parties tiiat more than 4/. per cent, interest shall be secured by the judgment, then the indorsement may be accordingly to levy the amount of interest so agreed. 15. Every person to whom any sum of money or Whenwiit any costs shall be payable under a judgment, shall S *"* 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 writ or writs of elegit to enforce payment thereof, subject nevertheless- as follows: — (a,) If the judgment is for payiftent within a period therein mentioned, no such writ as aforesaid shall be issued until after the expiration of such period. (k) The Court or Judge at the time of giving judgment, or the Coiwt or a Judge after- wards, rtlay give leave to issue execution before, or may stay execution until any time after the expiration of the period* ^,7.. herein-before prescribed. 1 i Digitized by Microsoft® 2 66 RULES OF COURT. O. XXXVII. R. J6-20. Writ how loni? in force and bow renewed. Evidence of renewal. Execution within six years. Application to iasue execution after six years. How orders entor^ied. 1 6. A writ of execution if unexecuted shall re- main in force for one year only,/rom its issue, unless renewed in the manner herein-after 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 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 re- : newed, shall be sufficient evidence of its having- been so renewed. 18. As between the original parties to a judg- ment, execution may issue at any time within six years from the recovery of the judgment 19. Where six years have elapsed since the judg- ment, or any change has taken place by death or other- wise in the parties entitled or liable to execution, the party alleging himself to be entitled to execu- tion 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 necessary to determine the rights of the parties, shall be tried in any of the ways in which any ques- tion in an action may be tried. And in either case such Court or Judge may impose such terms as to costs or otherwise, as shall seem just. 20. Every order of the Court or a Judge, whether in an action or matter, may be enforced in the same manner as a judgment to the same effect. Digitized by Microsoft® EXECUTION. 267 21. In cases other than those mentioned in Rule xxxvlr. 1 8 any person not being a party in an action, who R- 21—24. obtains any order or in whose favour any order is xxxviil made, shall be entitled to enforce obedience to such R- ^- ^- order by the same process as if he were a party to How orders the action ; and any person not being a party in an ^["^"j'J^ij^ action, against whom obedience to any judgment or partieB. order ntay 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. No proceeding by audita querela shall here- qu^e'a after be used ; but any party against whom judg- aboushed. ment has been given may apply to the Court or a Judge tor a stay of execution 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. 23. Nothing in any of the rules 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 what- soever. 24. Nothing in this order shall affect the order in which writs of execution may be issued. ORDER XXXVIII. Wrtis of Fieri Facias and Elegit 1. Writs of fieri facias and of elegit shall have the m. fa. and same force and effect as the like writs have hereto- ^'°2'*- fore had, and shall be executed in the same manner in which the like writs have heretofore been executed. 2. Writs of venditioni exponas, distringas nuper '"^"'s to uddi, vice comitem, 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 be issued and executed in the same cases and in the same manner as heretofore. Digitized by Microsoft® 368 RULES OF COURT. O XXXIX E. 1, 2. o. Xjl.. R. 1, 2. Effect of writ. Leave, necessary. OJIDER XXXIX Attachment. 1. A writ of attachment shall have the' same effect as a writ of attachment issued out of the Court of Chancery has heretofore had. 2. No writ of attachment shall be issued with- out the leave of the Court or a Judge, to be applied for on notice to the party against whom the attach- ment is to be issued. Application for order to examine judgment debtor. Order to attach. Order to garnishee to Bppear. ORDER XL. 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 be orally examined as to whether any and what debts are owing to him, before an officer of the Court, or such- other person as the Court or Judge shall appoint; and the Court or Judge may make an order for the examination of such judgment debtor, and for the production of any books or documents. 2. The Court or a Judge may, upon the ex parte application 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 jurisdic- tion, order that all debts owing or accruing from such third person (herein-after called the garnishee) to the judgment debtor shall be attached to answer the judgment debt; and by the same or any subse-;' quent 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 ma,y be; sufficient to satisfy the judgment debt. Digitized by Microsoft® ArrACHMENT OF DEBTS. 269 3. Service of an order tliat debts due or ac- ^■^■ cruing to the judgment debtor shall be attached, or : ' notice»thereof to the garnishee, in such manner as atucLd in the Court or Judge shall direct, shall bind such garnishee's debts in his hands. ^™'*'- 4. If the garnishee does not forthwith pay into execution court the amount due from him to the judgment again-t debtor, or an amount equal to the judgment debt, S''™'^''^- 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 ac- cordingly, without any previous writ or process, to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment debt. 5. If the garnishee disputes his liability, the Order where Court or Judge, instead of making an order that d™uter 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. 6. Whenever in proceedings to obtain an attach- order for ment of debts it is suggested by the garnishee that *„ ^pp^a?^ the debt sought to be attached belongs to some it interest third person, or that any third person has a lien or ^"sgested. charge upon it, the Court or Judge may order such third person to appear, and state the nature and particulars of his claim upon such debt. 7. After hearing the allegations of such third Order person under such order, and of any other person Jhhd^rt^. 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 determined ac- cording to the preceding rules of this order, and may bar the claim of such third person, or make Digitized by Microsoft® ajo RULES OF COURT, O.XL. R. *7-10. O. XLI. B. 1, 2. Discharge ofgaruiahee. Debt attach- ment book. Costs. 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 jiist and reasonable. 8. Payment made by or execution levied upon the garnishee under any such proceeding as afore- said shall be a valid discharge to him as against the judgment debtor, to the amount paid Or. levied, although such proceeding may be set aside, or the judgment reversed. 9. There shall be kept by the proper officer a. debt attachment book, and in such book entries shall be made of the attachment and proceedings thereon, with names, dates, and statements of the amount recovered, artd otherwise ; and copies of any entries made therein may be taken by any person upon application to the proper officer. 10. The costs of any application for an attach- ment of debts and of any proceedings arising from or incidental to such application, Shall be in thfe discretion of the Court or a Judge. ORDER XLI. tSharging atock. t)istringiis. Charging of Stock or Shares and Distringas^ 1. An order charging stock or shares may be made by any divisional Court or by any Judge, and the proceedings for obtaining such order shall, be such as are directed, and the effect shall be such as is provided by i and 2 Vict c. no. ss. 14 and 15., and 3 and 4 Vict. c. 82. s. i. 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 pursuant to the statute 5 Vict. g. 8, as heretofore. Such writ to be issued out of any office of the High Court in London, where writs of summons are issued. Digitized by Microsoft® WRIT OF SEQUESTRATION. 27 I ORDER XLII. o. XLg. Writ of Sequestration. O. XLiv. Where any person is by any judgment directed writ how to pay money into Court or to do any other aCt in effect! a limited time, and after due service of such judg- ment refuses or neglects to obey the same ac- cording to the exigency thereof, the person prose- cuting such judgment shall at the expiration of the time limited for the performance thereof, be entitled, without obtaining any order for that purpose, to issue a writ of sequestration against the estate and effects of such disobedient person. Such writ of sequestration shall have the same effect as a writ Of sequestration in Chancery has heretofore had, and the proceeds of such sequestration may be dealt with in the same manner as the proceeds of writs of sequestration have heretofore been dealt with by the Court of Chancery. ORDER XLIII. Writ of Possession. 1. A judgment that a party do recover possession Mode of of any land may be enforced by writ of possession ^^swAoiai in manner heretofore used in actions of ejectment land. in the Superior Cfourts of Common Law. 2. Where by any judgment any person therein ''^"' °*. .. J J ij If JT 'DOSS6SS10I1 named is directed to deliver up possession of any how issued lands to some other person, the person prosecuting ^^^^_ such judgment shall, without any order for that purpose, be entitled to sue out a writ of possession on filing an affidavit showing due service of such judgment and that the same has not been obeyed. '■ ORDER XLIV. Writ of Delivery. A writ for delivery of any property other than M.miict' of Jand or money may be issued and enforced in the manner heretofore in use in actions of detinue in the Superior Courts of Common Law. Digitized by Microsoft® ■372 RULES OF COURT. O.XLV. R. 1-3. Order on change of parties, when and how obtained. Service of order on whom and effect. Application to discharge or vary where persons under no disability. ORDER XLV. Change of Parties by Death, &>€. 1. Where by reason of marriage, death, or bank- ruptcy, or any other event occurring after the com- mencement of an action, and causing a change or transmission of interest or liabiHty, or by reason of any person interested coming into existence after the commencement of the action it becomes neces- sary 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, ^n order that the proceedings in the action shall be carried on between the continuing parties to the action, ' and such new party or parties, may be obtained ex parte on application to the Court or a Judge, upon an allegation of such change, or transmission of interest or liability, or of such person interested having come into existence. 2. An order so obtained shall, unless the Court ' or Judge shall otherwise direct, be served upon the continuing party or parties to the action, or their solicitors, and also upon each such new party, unless the person making the 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. 3. Where any person who is under no disability or under no disability other than coverture, or being under any disability other than coverture, but having a guardian ad litem in the action, shall be served with such order, such person may apply to the Court or a Judge to discharge or vary such order at any time within twelve days from the service therecrf". Digitized by Microsoft® TRANSFERS AND CONSOLIDATION. 273. 4. Where any person being under any disability °'^^^;, other than coverture, and not having had a guardian O-Xhin. ad litem appointed in the action is served with any o^xtvil. such order, such person may apply to the Court or K. i. . a Judge to discharge or vary such order at any Suoh appli- time within twelve days from the appointment of a persmunde? guardian or guardians ad litem for such party, and diaabmty. until such period of twelve days shall have expired, such order shall have no force or effect as against such last-mentioned person. ORDER XLVI. Transfers and Consolidation. 1. Any action or actions may be transferred from hovftrauster one division to another of the High Court or from anTfro^'™ one Judge to another of the Chancery Division by judge. an order of the Lord Chancellor, provided that no transfer shall be made from or to any division with- out the consent of the President of the Division. 2. Any action may, at any stage be transferred ^/f^Jf*" from one division to another by an order made by from division the Court or any Judge of the Division to which the action is assigned : Provided that no such transfer shall be made without the consent of the President of the Division to which the action is proposed to be transferred. 3. Any action transferred to the Chancery ^^'e^*' Division or the Probate Division, shall, by the order 5'^'™ "" directing the transfer, be directed to be assigned to Division, one of the Judges of such Division to be named in the order. 4. Actions in any division or divisions may be cdnsou- consolidated by order of the Court or a Judge in '^'''"'• the manner heretofore in use in the Superior Courts of Common Law. ORDER XLVIL Interlocutory Orders as to Mandamus Injunctions or ',, Interim Preservation of Property, &r'c. to^^^i"^ I. An application for an order under section 25, ™^®^%^^;j sub-section 8, of the Act, or under Rules 44 or 45 ^345.' ' Digitized by Microsoft® ^ 274 RULES OF COURT. : i °^f^°' of the Schedale to the Act may be made to the o XLViii Court or a Judge by any party. If the appHcation ^•^" be by the plaintiff for an order under the saidi sub- section 8 it may be made either ex parte or with notice, and if for an order under the said section 44 or 45 it may be made after notice to the de- fendant at any time after the issue of the writ of summons, and if it be by any other party thfen.on notice to the plaintiff, and at any time aftfer appearx ance by the party making the application. f^?'Sto°° 2- An application for an order under Rule 43 _df under the Schedule to the Act may be made by the plains R.P. 43. ^jjy ^^ ^j^y ^j^g g^^g^ y^ j.jgjj^j. ^jjgjgto appears from the pleadings ; or, if there be no pleadings, is made to appear by affidavit or otherwise to the satisfaction of the Court or a Judge. tato^oomr'' 3- Where an action is brought to recover, or a specific pro- defendant in his statement of defence seeks by^ way which ™en of counterclaim to recover specific property other claimed. ^-j^gj^ land, and the party from whom such recovery is sought does not dispute the title of the party- seeking to recover the same but claims to retain tthe property by 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 be no pleadingSj by affidavit or otherwise to the satisfaction of such Court or Judge, order that the party. claiming to recover the property be at Uberty to pay into Court, to abide the event of the action, the amoimt of money in respect of which the lien or secxrrity is claimed, and such further sum (if any) for interest and costs as such Court or Judge may direct, and that upon such payment into Court being made, the property claimed be given up to th6 party claiming it. -.} ORDER XLVIII. Motions and other Applications. kpDWriS ^' ^^^"^^ ^y t'^^se rules any application' is c»urt or to authorised to be made to the Court or a Judge in Digitized by Microsoft® Motions and other applications. 275 an action, such application, if made to a Divisional ^b?^^??^ Court or to a Judge in Court, shall be made by ■ _ ' — — motion. Court, "to b. 2. No rule or order to show cause shall be ^^ ™o'ion- granted in any action, except in the cases in which ^° ""■<*«•■ '» ° ,..■'- 'i .'^ ,. , show cause an application for such rule . or order is expressly except thoa* authorised by these rales. , ^ ^"^^^""^ ^^ 3. Except where by the practice existing at the -^^^^^ lime of the passing of the said Act any order or motion may rule has heretofore been made ex parte absolute in without the first instance, and except where by these rules proyioiui it is otherwise provided, 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 otherwise, and subject to such undertaking, if any, as the Court or Judge may think just j and any party affected by such order may move to set it aside. 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 appli- 2^^^^^"^" cation the Court or Judge shall be of opinion that not been any person to whom notice has not been given ^™°- ought to have or to have had such notice, the Court Or Judge may either dismiss the motion or appUca- tion,' or adjourn the hearing thereof, in order th#t 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 ^^^j."™- from time to time be adjourned upon such terms, if any, as the Court or Judge shall think fit. 7. The plaintiff shall, without any special leave, ^'^^y^^''J be at liberty to serve any notice of motion or other motion may iiotice, or any petition or summons upon any de- ^ithimt fgndan^ who, liaving been duly served with a writ leave. Digitized by Microsoft® 276 RULES OF COURT. °^^s^ of summons to appear in the action, has not ap- O.xiix. peared within the time Hmited for that purpose. "• ^' ^- 8. The plaintiff may, by leave of the Court or a When leave Judge to be obtained ex parte, serve any notice of neceaaary. jj^^jj^jj ^p^^ ^jjy defendant along with the writ of summons, or at any time after service of the writ of summons and before the time limited few: the ap- pearance of such defendant ORDER XLIX. Bow made. Applications at Chambers. I. Every application at chambers authorised by these rules shall be made in a summary way by summons. taana^r 2. In the Queen's Bench, Common Pleas, and business and Exchequer Divisions a master, aind in the Ptobatej *''*'■ Divorce, and Admiralty Division a registrar, may transact all such business and exercise all such authority and jurisdiction in respect of the same as under the Act, or the Schedule thereto, or these rules, may be transacted or exercised ty a Judge at chambers, except in respect of the following proceedings and matters ; that is to say, — All matters relating ta criminal proceedings or ta the liberty of the subject : The removal of actions from one division or Judge to another division or Judge : The settlement of issues, except by consent : Discovery, whether of documents or otherwise, and inspection, except by consent : Appeals from district registrars : Interpleader other tlian such matters arising in interpleader as relate to practice only, except by consent : Prohibitions : Injunctions and other orders under sub-section S of section 25 of the Act, or under Rules 43, 44, and 45 respectively of the Schedule to the Act ; Awarding of costs, other than the costs of: any jaroceeding before such master -^ Digitized by Microsoft® NOTICES AND PAPER. 277 Reviewing taxation of costs : 'b^-^?' Charging orders on stock funds, annuities, or 6. L. ' share of dividends or annual produce thereof : ^' ^~^' ' Acknowledgments of married women. 3. If any matter appears to the master proper Eeterence to 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 Se by" Chambers. Such appeal shall be by summons, s™™"""- 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 Appsai no stay of proceeding unless so ordered by a Judge or ^'°^" master. 6. In the Queen's Bench, Common Pleas, and Appeal from Exchequer Division every appeal to the Court from coS^y^ *" any decision at chambers shall be by motion, and motion. shall be made within eight days after the decision appealed against ORDER L. Notices and Paper, &=€. 1. All notices required by these rules shall be in Notieeatobe writing, unless expressly authorised by a Court or ™ '"' ^' Judge to be given orally. 2. Proceedings required to be printed shall be Paper and printed on cream wove machine drawing foolscap p^^ted folio paper, 19 lbs. per mill ream, or thereabouts, proceedings. in pica t5rpe leaded, with an inner margin about three quarters of an inch wide, and an outer margin about two inches and a half wide. 3. Where by the Act or these rules, or by any 10 copies of order of the Court (whether of appeal or otherwise) ^rooMdinga or a Judge, any pleading or evidence or other to be J o 7 J J ^ iT • J. J u -4. delivered at document is ordered to be pnnted by any party, j^. per folio, such party shall, upon request and upon payment therefor at the rate of halfpenny per folio of 72 Digitized by Microsoft® 278 RULES OF COURT. O. L. E. 3-10. O. LI. E. a. Swearing affidavits. men affidavits filed under consent to be printed under direction of officer. When other affidavits to be printed. Fair copy of affidavit on Sling. Office copies of filed affidavits. Office copy to be a printed copy. Printed office copy to be taken by person filing at 2d. per folio. Other copies at Id. per folio. words, deliver any number of copies not exceeding 10 to any party. _ ' 4. Any afifidavit may be sworn, either in print or in manuscript. 5. Every affidavit filed under a consent to take the evidence in an action by affidavit, shall, unless the Court Or a Judge shall otherwise order, be printed under the direction of the officer with whom it is filed, in the same manner in which affidavits have heretofore been printed under the direction of the record and writ clerks in the Court of Chancery. 6. Any affidavit other than those mentioned in _ the last Rule may be printed in manner thereby provided, if all the parties interested consent thereto, or the Court or a Judge so order. 7. The party filing an affidavit required^ or ordered to be printed, shall leave with the officer with whom it is filed a fair copy thereof, such copy to be written on draft paper on one side only.' 8. Any party requiring a copy of any affidavit filed by any other party shall take an office copy. 9. An office copy of any affidavit required or ordered to be printed under these rules shall be a printed copy. 10. The party filing any affidavit required or ordered to be printed shall take a printed office copy, pa3dng therefor at the rate of twopence per folio. Every other" printed office copy shall be paid for at the rate of one penny per folio. Months to mean calendar months. ORDER LI. Titne. I. Where by these rules, or by any judgment or order given or made after the commencement of the Act, time for doing any Act or taking any pro- ceeding is limited by months, not expressed to be lunar months, such time shall be computed by calendar months. Digitized by Microsoft® TIME. , 279 O.LI. !i 2. Where any limited time less than six days ^'^q, from or after any date or event is appointed or o Lii. Hallowed for doing any act or taking any proceeding. ' ' " Sunday, Christmas Day, and Good Friday shall not |[J_™ . be reckoned in the computation of such limited Christmas. ; lime. Good Friday, ^. Where the time for doing any act or taking not to be J. . oj^i.j reckoned. , ' any proceedmg expires on a bunuay, or other day , ' on which the offices are closed, and by reason p™™'™ ' .-, 1- IT as to acts thereof such act or proceeding cannot be done or to be done ;, taken on that day, such act or proceeding shall, so^o^Jf^"®™' far as regards the time of doing or taking- the same, p be Jield. to be duly done or taken if done or taken on the, day on which the offices shall next be open. 4. No pleadings shall be amended or delivered No pleading' in the long vacation, tmless directed by a Court vaoSn""^ or a Judge. 5. The time of the long vacation shall not be Long reckoned in the computation of the times ap- J^'^fP^ ""* pointed or allcwed by these rules for filing, amend- reckoned in ingj: or delivering any pleading, unless otherwise pi^£^. directed by a Court or a Judge. 6. A Court or a Judge shall have power to ^^^™g*°^ enlarge or abridge the time appointed by these enSrge" rules, or fixed by any order enlargijig time for doing *™^- any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, an,d 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. ORDER LII. I. Notice of appeal from any judgment, whether Length ot . final or interlocutory, shall be a fourteen days °<"''i''- - potice, and notice of appeal from any interlocutory - order shall be a four days notice. 2 Subiect to any special order which may be Length of ' ■' . , ■' "^ I , J i- J f noticeunder made, notice by a respondent under section 53 of r.p. 53, the schedule shall in the case of any appeal from a Digitized by Microsoft® 28o RULES OF COURT. n.2^. fi'^*! judgment be an eight days notice, and in the '— case of an appeal from an interlocutory order a two days notice. Proceedipga , -pjjg party appealing from a judgment or order on entering , -J, i'^ -^ ,^ /-^ ? ^i ,-. .. r appeal. shall produce to the proper officer of the Court or Appeal the judgment or order or an office copy thereof, and shall leave with him a copy of the notice of appeal to be filed, and such officer shall thereupon set down the appeal by entering the same in the proper list of appeals, and it shall come on to be heard according to its order in such list, unless the Court of Appeal or a Judge thereof shall otherwise direct, but so as not to come into the paper for hearing before the day named in the notice of appeal, ^eafm 4- The time for appealing from any order or companies dccision made or given in the matter of the winding and Stere up of a Company under the provisions of the Com- aottcm panies Act, 1862, or any Act amending the same, or any order or decision made in the matter of any bankruptcy, or in any other matter not being an action, shall be the same as the time limited for appeal from an interlocutory order under rule 57 in the schedule to the said Act. Appeal from 5. Where an exparte application has been refused courTto ex by the Court below, an application for a similar parte appii- purpose may be made to the Court of Appeal ex parte within four days from the date of such refusal, or within such enlarged time as a Judge of the Court below or of the Appeal Court may allow. Evidence in 6. Where any question of fact is involved in an ^^^^ ' appeal, the evidence taken in the Court below bear- ing on such question shall, subject to any special order to be made under section 54 of the schedule to the Act, be brought before the Court of Appeal as follows : (a.) As to any evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed. Digitized by Microsoft® APPEALS. (b.) As to any evidence given orally, by the r ''elg production of a copy of the Judge's notes, or o." Liii.' such other materials as the Court may °r^i^" deem expedient. 7. Where evidence has not been printed in the order to Court below the Court below or a Judge thereof, or P"idenoe in the Court of Appeal or a Judge thereof, may order '""rt teiow. the whole or any part thereof to be printed for the purpose of the appeal. Any party printing evi- dence 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. 8. Wherever under these rules or under the ^Stion schedule to the Act an application may be made ^4*°tJ® either to the Court below or to the Court of Appeal, comt or or to a Judge of the Court below, or of the Court of ^""^^ ''°""'- Appeal, it shall be made in the first instance to the Court or Judge below. 9. Every appUcation to a Judge of the Court of Aw^jf^^'j*' Appeal shall be by motion, and the provisions of appeal. Order 48 shall apply thereto. ORDER LIII. Effect of Non-compliance. Non-compliance with any of these rules shall not Not to render the proceedings in any action void unless the proceedings Court or a Judge shall so direct, but such proceed- ^i"*- ings may be set 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 LIV. Officers. I. All officers who at the time of the com- tito^°^ mencement of the said Act shall be attached to the officers. Court of Chancery shall be attached to the Chancery Division of the said High Court ; and all officers who at the time of the commencement of the said Act shall be attached to the Coiu-t of Digitized by Microsoft® RULES OF COURT. O: LIV. B. 1, 2. O. LV. E. 1. Allocation of former officers. Duties of officers of Court of Appeal. Sittings. Queen's Bench shall be attached the Queen's Bench Division of the said High Court ; and all officers . who at the time of the commencement of the said Act shall be attached to the Court of Common Pleas shall be attached to the' Common Pleas Division of the said High Court ; and all officers who at the time of the commencement of the said Act shall be attached to the Court of Exchequer and the London Court of Bankruptcy shall be attached to the Exchequer Division of the said High Court ; and all officers who at the time of the commencement of the said Act shall be attached to the Court of Probate, the Court of Divorce, and the Court of Admiralty respectively shall be at- tached to the Probate, 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 per- form in the Court of Appeal analogous duties in referenee to. such appeals as the registrars and officers of the Court of Chancery usually performed as to re^hearings in the Court of Appeal in Chancery, and as the Masters and officers of the Courts of Queen's Bench,. Common Pleas, and Exchequer respectively performed as to appeals heard by the Court of Exchequer Chamber. ORDER LV. Sittings and Vacations. I. The sittings of the Court of Appeal and the sittings in London and Middlesex of the High Court of Justice shall be four in every year, viz., the Michaelmas sittings, the Hilary sittings^ the Easter sittings, and the Trinity sittings. The Michaelmas sittings shall commence on the 2nd of November and terminate on the 21st of December ; the Hilary sittings shall commencei on the I ith of January and terminate on the Wednes- day before Easter ; the Easter sittings shall com- mence on the Tuesday after Eastsr week and ter- minate on the Friday before Whitsunday. Digitized by Microsoft® SITTINGS AND VACATIONS. 283 The Trinity sittings shall commence on the ^'^5 Tuesday after Whitsun week and terminate on the — '- 8th of August. 2. The vacations to be observed in the several '^'"'"■*'"™- courts and offices of the Supreme Court shall be four in every year, viz., the Long vacation, the Christmas vacation, the Easter vacation, and the Whitsun vacation. The Long vacation shall commence on the loth of August and terminate on the 24th of October. The- Christmas 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 Monday, and the Whitsun vacation sliall commence on the Saturday before Whitsunday and shall terminate on the Tuesday after Whitsunday. 3. The days of the commencement and termi- nation of each sitting and vacation shall be included in such sitting and vacation respectively. 4. The several offices of the Supreme Court shall offices when be open on ever}' day of the year, except Sundays, wSdosed. Good Friday, Monday, and Tuesday in Easter week, Whit Monday, Christmas Day, and the next follow- ing working day, and all days appointed by pro- clamation to be observed as days of general fast, humiliation, or thanksgiving. 5. Two of the Judges of the High Court shall ^„'J™ be selected at the commencement of each long judges, vacation for the hearing in London or Middlesex during vacation of all such applications as may require to be immediately or promptly heard. Such two Judges shall act as vacation Judges for one year from their appointment. In the absence of arrangement between the Judges, the two vacation Judges shall be the two Judges last appointed (whether as Judges of the said High Court or of any Court whose jurisdiction is by the said Act transferred to the said High Court) who have not already served as vacation Judges of any such Digitized by Microsoft® 284 RULES OK COURT. O. LV E. 5—9. Vacation judges may sit separately or together. Vacation judge ol Court of Appeal, Powers of vacation judge of Court of Appeal, and nf vacation judge .. _ Court, and if there shall riot be two Judges for the tinae being of the said High Court who shall not have so served, then the two vacation Judges shall be the Judge (if any) who has not so served and the senior Judge or Judges who has or have so served once only according to seniority of appointment, whether in the said High Court or such other Court as aforesaid. The Lord Chancellor shall not be liable to serve as a vacation Judge. 6. The vacation Judges may sit either separately Or together as a divisional Court as occasion shall require, and may hear and dispose of all actions, matters, and other business to whichever division the same may be assigned. No order made by a vacation Judge shall be reversed or varied except by a divisional Court or the Court of Appeal, or a Judge thereof, or the Judge who made the order. Any other Judge of the High Court may sit in vacation for any vacation Judge. 7. One of the ordinary judges of the Court of Appeal shall be selected at the commencement of each long vacation, for the hearing in London or Middlesex of all such applications as may require to be immediately or promptly heard. Such Judge shall act as vacation Judge for one year from his ap- pointment. In the absence of arrangement between the Judges, the Judge who is junior in rank who has not already served as vacation Judge of the Court of Appeal shall be the vacation Judge, and if there shall be no such Judge then the senior ordinary Judge who has so served once only according to seniority of rank. 8. The vacation Judge of the Court of Appeal may discharge or vary any order made by a single vacation Judge of the High Court, but every such order made by a vacation Judge of the Court of Ap- peal may be discharged or varied by the Court of Appeal or a Divisional Court thereof; any other Judge of the Court of Appeal may sit in vacation for the vacation Judge. 9. The vacation Judges of the High Court, or Digitized by Microsoft® INTERPRETATION OF TERMS. 285 Court of Appeal respectively, , may dispose of all ^^^' actions, matters, and other business of an urgent O. LVI. nature during any interval between the sittings of '. any division of the High Court to which such busi- ness may be assigned, or of the Court of Appeal, as the case may be, although such interval may not be called or known as a vacation. ORDER LVI. Eocceptions from the Rules. Nothins; in these rules shall affect the practice or Exceptions , ° . ^ ,. J. ,, . ^ from rules. procedure m any of the following causes or matters : — Criminal proceedings ; Proceedings on the Court side of the Queen's Bench Division : Proceedings on the Revenue side of the Ex- chequer Division : Proceedings for Divorce or other Matrimonial Causes. ORDER LVII. Interpretation of Terms. In the construction of these rules, unless there is tatio^V anything in the subject or context repugnant thereto, t«™B- the several words hereinafter mentioned or referred to shall have or include the meanings following :— Words importing the singular number shall in- clude the plural, and words importing the plural number shall include the singular : Words importing the male sex shall include females : " Person" shall include a body corporate or politic : " Probate actions" shall include actions and other matters relating to the grant or recall of probate or of letters of administration other than common form business : Digitized by Microsoft® 286 RULES OF COURT. '^■^'^'^- " Proper officer" shall, unless and until any rule ^oper 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 hereto- fore been discharged by an 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 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 division by the President of the division, and in the case of an officer attached to any Judge, by such Judge : " The Act" and " The said Act" shall respectively mean the Supreme Court of Judicature Act, 1873. Digitized by Microsoft® SCHEDULE. 2^7 SCHEDULK SCHEDULE (A.)— Part I.— Forms of Writs of Summons, &c. No. 1.— General Form, 187 . [Here put the letter and number.^ In the High Coxirt of Justice. Between A.B. Plaintiff, Division. and CD. and E.F. Defendants. "Victoria, by the grace of God, = The plaintiff's claim is i. for money deposited with the defendant as a hanker. No. 12.— I^ees, &o., as solicitors. The plaintiff's claim is I. for fees for work done [and 2. money ea^ended] as a solicitor. No. 13.— Commission. The plaintiff's claim is L for commission earned as [state character as auctioneer, cotton broker, dErc.]. No. 14.— Medical attendance, &o. The plaintiff's claim is I. for medical attendances. No- 15-— Return of premium. The plaintiff's claim is I. for a return of premiums paid upon policies of insurance. No. 16.— "Warehouse rent. The plaintiff's claim is Z. for the warehousing- of goods. No. 17.— Carriage of groods. The plaintiff's claim is I. for the carriage of goods by railway. No. 18 — ITse and occupation of houses The plaintiffs claim is I. for the use and occupation of a house. No. 19.— Hire of g-oods The plaintiff's claim is I. for the hire of [fm^iturel. No. 20 —"Work done. "The plaintiff's claim is I. for work done as a surveyor- No. 21.— Board and lodging. The plaintiff's claim is I. for hoard and lodging. No. 22 —Schooling: The plaintiff's claim ia I. for the board, lodging, and tuition otX.T. No. 23 — DToney received- The plaintiff's claim is I. for money received by the defendant as solicitcr [or factor, or collector, or, (fee. J of the plaintiff. No. 24.— Fees of office. .The plaintiff's claim is I. for fees received by the defendant under colour of the office of . No. 25 — HToney overpaid. The plaintiff's claim is I. for a return of money overcharged for the carriage of goods by railway. The plaintiff's claim is I. for a return of fees overcharged by the defendant as No. 26.— Return of money by stakeholder. The plaintiff's claim is I. for a return of money deposited with the defendant as stakeholder. No. 27.— Money won, from stakeholder. The plaintiff's claim is I. for money entrusted to the defendant aa rtakeholdT and become ^Sfl)?i^^8Wforosofm ^t)2 KtTLES OF COURT. ' No. 28.- Money entrusted to agrent. Tiie plaintiff's claiin is I. for a return of money entrusted to the' defendant ia agent o{ the plaintiff, No. 89.— Money obtained by fraud. The plaintiff's claim is Z. fos a return of money obtained from the' plaintiff by fraud. TSo. 30.^Money paid by mistake. The plaintiff's claimi i* I. f ora return of mMiey paid to the defendant by ndstake. No. 31.^Money paid for consideration which has failed. The plaintiff's claim is 2. i&c atre^um of money paid to the defendant- for [t^o^fc tb be done, Ufi UTidone ; or, a MU to be taken up ; not takenwp, or'&c.'^ The plaintiff's claim is I. fov a return of money paid as a deposit upon shares to be allotted, No. 32.— Money paid by surety for defendant. The plaintiff'^ claim is I. for money paid for the defendant as his^ surety. No. 33.— Bent paid. The plaintiff's claim' is I. for money paioG for rent duo by the' defendant. No. 84.— Money paid on accommodation bill. The plaintiff^ claim is I. upon a bill of exchange accepted lor indxirse^ tor the defendant* » aeeommodatlon. ' ' No. 35,— Contribution by surety. The plaintiff's claimiis T. for a contribution in respect of money paid. 13y the plaintiff as surety. 1, - -,.r. - ■ - . Note 36.— By co-debtor. ■^ Thepiidnfefl's claini is . T f or a contribution m respect of a joint debt of the plaintiff and the defendant, paid by the plaintiff. Note 37.— Money paid for calls. The pl^ntiff '9 claim- is I. for money paid for calls upon shares, against which the defendant was bound to indemnify the p^intiff. Note 38.— Money payable under award. Hie plaintiff'^ claim is I. for money payable under an award. No. 39.— Life policy. The plaintiff's claimiis I. upon a policy of insurance upcm the life of X.Y., deceased.. No. 40— Money bond. Tl)e plaintiff's claim is I. upon a bond to secure payment of £1,000. and iiite'rest. ' No. 41.— Foreign judgment. The plaintiff's claim is I. upon a judgment of the Court, in- me Empire of Russia. ' No. 42.— Bills of ezchanss:&c. The plaintiff's claim Is I. upon a cheque drawn by the defendant. or i^<^fi™b?therendant '' "P"""' " *"" '"«="''"»^ ^'^"^'^ «^ *™» & /rnVb^JiTdetllSiti' '• "5™ " Vro^^^r:, note made for »m,iS^feW'?'^ '^ .. j!-»?ainstthedefendant4.B. as acceptor, and., agamst the defendant CD, as drawer (or Endorser) of a. biU of exchange. Digitized by Microsoft® SCHEDULE. 293 No. 43.— Surety. The plMntilFs elwmis I. against the defendant as surety for the price ot gogds sold. The plaintiff's claim ii I. agwnst the defendant A.B. as principal, and against the defendant Ci^. as surety, for the price of goods sold (or arrewrt «/ rent, or far motley lent, or for money receimd ty the defendant A.B. as traveller for the plaintiff^, or, i&c.) No. 44.— Del credera agent. The plaintiff's claim is L against the defendant as a del credere agent for the price of goods sold (or' as losses under a poUcy). No. 45.— OaUs. The plaintlff'a claim is I. for calls upon shares. No. 46.— Waygoing: crops, &o. The plaintiff^s claim is I. for crops; tillage, manures [or at the case may be) left hy the defendant as ou)tgoing tenant of a farm. SCHEDULE (A.)— Part IL— Section III.— Indorsement for Costs, &c. [add to the above Forms]. And I. for costs; and if the amotint claimed he paid to the plaintiff or his solicitor within four days {or if the writ is to be served, out of the jurisdiclion^ or Tiotice in lieu of service allowed^ insert the tinie for appearancs limited by the OTder"] from the service hereof, further proceedings will be stayed. SCHEDULE (A.)— Part II.— Section IV.— Damages and other Claims. No. 1.— Agent, &o. The plaintiff's claira is for damages for breach of a contract to employ the plaintiff as traveller. The plaintiff's claim is for damages for wrongful dismissal from the defend- ant'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 plainttfE's claim is for damages for breach of duty as factor (or (to.) ot the idaiQtiff (a7u2 I. for rrumey received as factor, tSsc.) No. 2.— Apprentices. The plaintiff's claim is for damages for breach of the terms of a deed of apprenticeship of X.F. to the defendant (or plaintiff)- No- 3.- Arbitration. The plaintiff's claim is for damages for non-compliance with the award of X.T. No. 4.— Assault, &c. The plaintiff's claim is for damages torassault (and false imprisonment, and for malicious prosecution) . No. 6— By husband and wife. The plaintiff's claim is tor damiigea for assault and lalsa Impriionment el tha plaintiff CD. Digitized by Microsoft® 594 RULES OF COURT. No. 6.— Against husband and wife- The plaintiffs claim is for damages for assault by tlie defendant CD. ' " • - No. 7.-Solicitor. The plaintiffs claim is for damages for injury by the defendant's negligence as voli'citor of the plaintiff. No. 8 —Bailment- The plaintiffs claim is for damages for negligence in the custody of goods (and f&r wrongfully detaining the game). No. 9— Pledge. The plaintiff's claim is for damages for negligence in the keeping of goods pawned (and for wrongfully detaining the sa/mA). No. lO—Hire. The plaintiffs claim is for damages for negligence in the custody of tumituro lent on hire (o^' a carriage lent), (and far wrongfully, tbc.) No. 11.— Banket. The plaintiS's claim is for damages for wrongfully neglecting (or refusing) to pay the plaiatiff's cheque. No. 12.-Bin. The plaintiff's claim is for damages for breach of a contract to accept the plaintiff's drafts. Wo. 13.— Bond, The plaintiff's claim is upon a bond conditioiied not to cany on the trade of a No- 14. — Carrier. The plaintiff's claim is for damages for refusipg to cany the plaintiff's goods by railway. - , The plaintiff's claim is for damages for refusing to carry the plaintiff by rail- way. The plaintiff's claim is for damages for breach of duty in and about the carriage and delivery of coals by railway. The plaintiff's claim is for damages for breach of duty inandabout the carriage and delivery of machinery by sea. No. 15 —Charter-party, The plaintiff's claim is for damages for breach of charter-party of ship (Mary).- No. 16 —Claim for return of groods ; damages. The plaintiff's claim is for return of household furniture, or, &c., or their value, and for damages for detaining the same. No. 17,— Damag-es for depriving: of goods. The plaintiff's claim is for wrongfully depriving plaintiff of goods, household furniture, &c. No. 18.— Defamation. The plaintiff's claim is for damages for libel. The plaintiff's claim is for damages for slander. No. 19.— Distress— Replevin. The plaintiff's claim is in replevin for goods wrongfully distrained. No. 20.— WrongiHil distress. The plaintiff's claim is for damages for improperly distraining. (This Form shall be sufficient whether the distress complained of be wrongful or excessive^ or irregular, and whether the clavm be for damages only, or for double value.) No. 21.— Ejectment. The plaintiff's claim is to recover poBsession of a house. No. in , street, or of a farm culled Blackficre, situate in Uie parish of In tii» •ouiltyof Digitized by Microsoft® SCHEDULE. 295 yov 22.— To establish, title and recover rents. The plaintiff's claim is to establish his title to {here describe propert^l, and to tecover the rents thereof. {The two previoits Forms may be co7n^ined,'\ No. 23.— Dower. The plaintiff's claim is for dower. No. 24.— Fishery. the plaintitf's claim is for damages' for infringement of the plaintiff's right of fishing^i * No. S5.— Fraud. . The plaintifPs claim is for dajnages for fraudulent misrepresentation on the salo of a horse for a bttsiness, or shares, or, d-c] The plaintiff's olaim is for damages for fraudulent misrepresentation of tha credit of A.B, No. 26.- Guarantee. The plaintiff's claim is for damages for breach of a contract of guarantee foTA.B^ ' The plaintiff's claim is for damag-es for breach of a contract to indemnify the plaintiff as the defendant's agent to distrain. No. 27.— Insurance. The plaintiff's claim is for a loss under a policy upon the ship, " Royal Charleir," and freight or cargo (or for retwm qf preimumfi.) (This Form shall be suffitdent whether iHe.loss claimed be total or pcerlial). No. 28.— Fire Insurance. The plaintiff's claim is for a loss under a policy of fire insurance upon house and fondtura The plaintiff's claim is for damages for breach of a contract to insure a house. No. 29.— Landlord and Tenant. ^ The plaintiff's claim is for damages for breach of contract to keep a house in repair. The plaintiff's claim is for damages for breaches of covenants contained in a lease of a farm. No. 30.- Medical man* The platatiffs claim is for damages for injury to the plaintiff from the defendant's negligence as a medical man. No. 31-— Mischievous animal. The plaintiff's claim is for damages for injury^by the defendant's dog. , r No. 32.— Negligence. . The plaintiff's claim is for damages for injury to the plaintiff (or, ifj>y Husband and wife, to the plaintiff, CD.) by the neghgent driving of the defendant or his servants. The plaintiff's claim is ft)r damages for injury to the plamtiff 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 rajlway station, from the defective condition, of the station. No. 33.— liOrd Caznphell's Act. The plaintiff's claim is as executor of A.B. deceased, for damages for the death of the said A.B., from injiiries received while a passenger on the defendant's rail- way, by the negligence' of the defendant's servants. No. 34.— Promise of marriage. The plaintiff's claim is for damages for breach of promise of marruig«. No. 35.— Quare impedit. The plaintiff's claim is m quare impedit for c No. 38.— Seduction. a The plaintiff's claim u for damages for the seduction of the plaintiff's daughter* Digitized by Microsoft® 296 RULES OF COURT. No. 87— Sale of g'oods. The plaintiff's claim is lor damages for breach of contract to accept and pay for goods. The plaintiffs claim is for damages for non-delivery [or short delivery, or defective quality, or otlUir breach of contract of sale] of cotton [or, ifcc.] The plaintiff's claim is for damiages for breach of warranty of a horse. No- 38.— Sale of land. The plaiutifTa claim is for damages for breach of a contract to sell (or purchase) land. The plaintiff's claim is for damages for breach of a contract to let (or take) a house. The plaintiff's claim is for damages for breach of a contract to sell (orpurehase) the lease, with goadwill, fixtures, and stock in trade of a public house; The plaintiff's claim is for damages for breach of covenant for title (or far quiet enjoyrnentf or, iSic) in a conveyance of land. No. 39.— Trespass to land. The plaintiff's claim is for damages for wrongfully entering the plaintiff's land and drawing water from his well (or cutting his groM^ or pvXling down his timber, or puUijiq down Ms fences, or renwvmg his gate, or uHng his road or path, or crossing his field, or depoHfvng. swnd there, or ca/rrying away gravel from, thcTice, or carrying away stoTies front his river.) No. 40.— Support. The plaintiff's claim is lor damages for wrongfully taking away the support of plaintiff's land (or house^ or mithe). No. 41.— Way. The plaintiff's plaim is lor damages for wrongfully obstructing a way (publie highway or a primate way ). No. 4S.— ■Watercourse &o. The plaintiff's claim is for damages lor wrongfiilly diverting (or ohslructing, or polluting, or diverting water from) a watercourse. The plaintiff's claim is for damages for wrongfully discharging water iipon the plaintiff's land (or into the plaintiff's mine). The plaintiff's claim is for d£nages for wrongfully obstructing the plaintiff's use of a well. No. 43.- Pasture. The plaintiff's claim Is for damages for the infringement of the plaintiff's right of pasture. (This form shall be sufficient whalmer the nature of the right to pasture be.) No. 44.-Lig-lit. t The plaintiff's claim is for damages for obstructing the access of hght to plaintiff's house. ' No. 45.— Sportinff. The plamtifl's claim is {or damages for the Infringement of the plaintiff's right of sporting. No. 46.— Patent. The plaintiff's claim is for damages for the infringement of the plaintiff's patent. No. 47 -Copyright. The plaintiff's claim is for damages lor the infringement of the plaintiff's copyright. No. 48.— Trademark. The plaintiff's claim is tor damages for wrongfully using (or imitating) the plaintiff's trade mark. No. 49.— Work. The plaintiff's claim is for damages for breach of a contract to build a ship (or to repair a house, &c.) The plaintiff's claim is lor damages for breach of a ooHtreot to employ the plaintiff to build a ship, iio. Digitized by Microsoft® SCHEDULE. 297 No. 50.— Nuisance. The plaintiff's olaim is for damages to his liouse, trees, orops, &o., caused by noxious vapours from the defendant's factory (or, ctc.J The plaintiff's claim is for damages from nuisance bv noise from the, defendants voTks (or stables, or,, The defendant claims to bs indemnified by you against liability under the said bill, on the ground that it was accepted for your accommodation.] ** ©r [to reeover-damagea for a breach of a contract for the sale and delivery to the plaintwof 1,000 tons of coal. , The defendant claims to be indemnified by you against liability in respect of the* said contract, or any brei^ thereof, on the ground that it was made by him on your fcehalt tmd as your agent.] And tal£e notice that, if you wish to dispute the plaintiff's claim in this action as against the defendant CD'., you must cause an appearance to be entered for you within eight days after service of this notice- In d^ult of your so appearing, you- will not be entitled in any future proceeding between the defendant CD; and yourself to dispute the validity of the judgment in- this action whether obtained by consent or otherwise. (Signed) KT. Or, X.Y., Appeara&ce t<>be entered at Form S. Solicitor for the defendant.- E.T. In the High Court. Queen's Bench Division. 187 ' . [Here put the letter and nwnZier. J Between A.B. plaintiff, and CD., defendant. The plaintiff confesses the defence stated in the paragraph of the defendant'9- statement of defence [or, of tlie defendant's further statement of defence]. Form 3. 187 \Bereput the letter andmuwier.Ti In the High Court of Justice. Divisi&n. Between A.B., plaintiff, and CD.,, 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- sununons. Form 4. " To the within-named X.Y. " Talceuotice that if you do not appear to the within counter-claim of the within- " named CD. within eight days from the service of this defence and counter-claim* ** upon you, you will he liable to have judgment given against you in your absence. VAppearances are to be entered at Form 5 — Notice of payment into court' IntheHighCourt 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 Bum is enough to satisfy the plaintiff's claim [or the pluvntiffs claim ft his inspection the foUowius documents referred to in your [statament of claim or a^ence, or Oiffidavit, dated tlie^ day qf a.d.] Describe documents required. X.T., _ _ Solicitor to the To^., Solicitor for Form 11 — Form of notice to inspect documents. In the High Court of Justice. Q. £. Division. A, B. v. C. D. .Take notice that you can inspect the documents mentioned in your notice of tl^e day of A.D. [except the deed numbered in that n-ticej at my office on Thursday next the instant, between the hours of 12 and 4 o'clock. Or, that the { plainHff or defendanf] objects to giving you inspection of the documents m^ ntioned in your notice of the day of a.l. on. the ground that [state the ground] : — '' Form IS.— Form of notice to admit documents. In fhe High Court of Justice. Division, A. B. V. C. D. Take notice that the plaintiff [or defendanf] in this cause proposes to adduce in evidence the several docimients hereunder specified, and tlw,t the same may be inspected by the defendant [or plaintiff\ his solicitor or agent, at on , between the hours of ; and the defendant [or plainUff\ is hereby required, within forty-eiifht 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 r^pectively ; saving all just exceptions to the admissibility of all such documents as evidence in this cause. Dated, &c. To E. F.J solicitor [or agenf] '"or defendant [or plaintiff]. G. H., solicitor [or agenf] for plaintiff [or defendanf], [Here describe the documents, the manner of doi-ng whioh may be as follows : — ] Originals. Description of Documents. Deed of covenant between -!.£. and C.X>, first part, and^.J^. second part Indenture of lease from A.B. to CD Indenture of release between A.B., CD. first part, &e Letter, defendant to plaintiff Policy of insiuunce on goods by ships " Isabella," on voyage from Oporto to London Memorandum of a^eement between CD.j captain of said sMp^ mdS.F. Bill of exchange for £100 at three months, drawn by A.B. on and accepted by CD , indorsed by E. F. and G.H Dates. January 1, 1848. February 1, 1848. February 2, 1848. March 1, 1848. December 3, 1847. January 1, 1848 May 1, 1849. Digitized by Microsoft® '304 RULES OF COURT. CopmB. Deacription of Documents, Reg:iater pt baptism of A.B. in the ' parish of X. * . * / . Letter — plaintiff to defendant . . . Notice to produce papers .' Record of a Judgment of the Court of Queen's Bench in an action, J.S.V.J.N. Letters Patent of King Charles 11. in the Rolls Chapel Dates. January 1, 1848 . . February I, 1848 March 1, 1848.,.. Trinity Term, 10th Vic. January 1, 1680. Original or Duplicate served, sent, or delivered, when, how, and by whom. Sent by General Post, February 2, 1848. Served March 2, 1848, on defendant's attorney by S.:0'. of Forza 13.— Setting do-^n special case. 1875 B. NOv In the High Court of Justice. Division. Between A. B., PlaiutiiS, and G. D. and others, Defendants. Set down for afgument the special case filed in this action on the day of ,187 . XF"., solicitor for Porm 14.— Form of notice of trial- In the High Court of Justice. Division. A. B. V. a D. Take notice of trial of this action {or of the issues in this action ord&red to he tried'] by a judge and jury \or as the case 'may 6e] in Middlesex [or as the case may *e] for the day of next. X. F.J plaintifl's solicitor [or as the case may fte]. Dated To Z., defendant's solicitor [or as the case may be]. SCHEDULE (C.) No. 1.— Form of demurrer. In the High Court of Justice. Division. A.B. V. CD. The defendant [plaintiS] demurs to the [plaintiff's statement of complaint or defendant's statement of defence, or of set-oft, or of counter-claim], \or to so much of the plaintiff's statement of complaint as claims or as alleges as a breach of contract the matters mentioned in paragraph 17, or as the case may be] and says that the same is bad in law on the ground that [Aere sdite a (TroMTOjijr ■dewwrrer] and on other grounds, aulBcient in law to sustain this demurrer. Digitized by Microsoft® SCHEDULE. 305 Nt>. 2.— sremorandum of entry of Semurrer for argaiment. 1874. B. No. In the High Court of Justice. Division. I A. B. V. C. D. JSnter tor &e argument the demurrer of X.T., fi*Ucit«r t«r the plaiutil [or, Jse.\ Digitized by Microsoft® 3o6' JUDICATURE ACT, 1 874. THE' SUPREME COURT OP JUDICATURE (commencement) ACT 1874. 3Y und jers, and other chattels in possession of Cts. and their o£Q.cers shall be dealt with, s. 92, p. 61. judge of C.A. may sit as judge of H.C. in absence from illness of latter s. 51, p. 38. a single judge may give any direction incidental to appeal, not involving decision of appeal, s. 52, p. 39. a single judge may, during vacation, make any interim order to prevent prejudice to claims of any parties pending an appeal, subject to discharge or variation of D. C, s. 52, p. 39. rules for concurrent administration of law and equity ia C.A., s. 24, p. 16, see Rules. no error or appeal from C.A. to House of Lords, s. 20, p. 12. practice and procedure in criminal cases in C.A. to remain, subject to R.C., s. 71, p. 47. Acts of Parliament relating to former Cts. to be read as applying to C.A., s. 76, p. 49. general powers of C.A., R,P. 52, p. 81. D. Cts. of C.A., s. 53, p 39, see Divisional Courts of Court of AppeaL cross appeals in C.A., R.P. 53, p. 81, see Cross Appeals. appeals from H.C. of Admiralty or In Lunacy, transferred to C.A., s. 18, p. 11. ■'- terms of appeals from H.C. to C.A., to be regulated by- R.C. and Orders of Court, 3. 19, p. 12. Digitized by Microsoft® 3l6 INDEX- APPEAL, COURT OF.— continued, costs of appeals, R.P. 52, p. 81. every application tp.a judge of the C.A. shall be by motion, O, 52, r. 9 p, 2M. wherever an application may be made either to Ct. belqw or to the C. A., or to a judge of Ct. below or of the C.A. it shall be made in the fli-at instfance to the Ct. or judge below, O. 52, r. 8, p. 281. APPEAL, COURT OF, IN CHANCERY— see also Lord Juaticea of Appeal ; Lancaster. interpretation of term, g. 100, p. 63. jurisdiction oif, not transferred to H.C., s. 17, p. 10. jurisdiction of, and of same Ct. as C.A. in Bankruptcy; transferred to C.A. s. 18, p. 11. pending proceedings before, to be continued in C.A., s, ^, p. 15. APPEARANCE. deft, to enter appearance by delivering to proper officer a memorandum in wi'itirig, O. 11, r. 6, p. 215. If two or more defta. in the same action shall appear (I.) by same solicitor, and (II.) at same time, the names of aU defts. so appearing shall be inserted in one memorandum, O. 11, r. 13, p. 216. Place to enter apppearcmce. in London, if not otherwise provided, O. 11, r. 1, p. 214. in district registry if deft, resides or carries on business in district of the issuing registry, 0. 11, r. 2, p. 214 ; O. 4, r. 3, p. 206. in 'either London or the issuing registry if deft, does not reside or carrj' on business in district of issuing registry, O. 11, r. 3, p. 214 ; O. 4, r. 2, p. 206. Proceadiiigs to continue in dintrict registry. (a) if sole deft, appears in district registry. ^6) if all defts. appear in district registry. (c) if all defts. appearing, appear in district registry (the others making default), O. 11, r. 4, p. 214. proceedings, to continue subject to power of removal, O. 11, i. 4, p. 214. Proceedi/ngs to continue in London, (a) if deft, appears in London. (6) if any of defts. appear in London, 0. 11, r. 5, p. 214. Ct. or Judge may order action to proceed in country if satisfied ttiat deft, appearing in London (I.) is a merely formal deft, or (IL) has no substantial cause to mterfere In the conduct of the action, O. 11, r. 5, p. 214. Memorandum of ceppearantie. 1. to be in writing. 2. to be dated on the day of the delivering thereof. 3. to contain name of defts. solicitor. 3a. or that deft, defends In person, O. 11, r. 6, p. 215. 6. to state address of deft, and (a) if deft, appears by solicitor in London a place to be called hia address for service (not more than three miles from Temple Bar), O. 11, r. 7, p. 215. (&) if deft, appears in district registry by solicitor a place to be called his address for service within the district, O. 11, r. 7, p. 215. (e) if deft, appears in person in London a place to be callea his address for service (not more than three miles from Temple Bar)., 0. 11, r. 8, p. 215. (d) if deft, appears in person in district registry, a place to be called Ms address for service within the district, 0. 11, r. 8, p. 215. no memorandum to be received without such address, O. 11, r. 9, p. 215. if address be illusory or fictitious, the appea^'aiice ma^ be set aside by Ct. or judge on. ap[dication of pi., O. 11, r. 9, p. 215. form provided for, 0. 11, r. 10, p. 215. --The form. Schedule A, pt. 1, form 6, p. 215 form to be used with such variations as circumstances of the case may require, O. U, r. 10, •^. 215. if two or more defts. in the same action shall appear (1.) by the same ''- - solicitor ; and (II.) at the same time, the names of all the defta. soappear- jng shall be inserted in one memorandum^ O. 11, r. J 3, p. 215. Digitized by Microsoft® INDEX. 3 1 7 APPEARANCE.— continued. JUntrtf qf appearance. upon receipt of memorandum of appearance, oflficer to enter fortUwitb an appearance in the cause book, O. 11, r. 11, p. 215. Unde'-t/tking to appear. no service of writ ahnll be required when deft., by bia solicitor, pgreoia to accept service and enters an appearand^, R.P. 4, p. 66. a solicitor not entering an appearance in pursuance of, his written , under- taking, shall be liable to an attachment, O, 11, r, 14, p. 216. rims for appearance. a deft, may appear at any time before iudgraent, 0. 11, r. 15, p. 216. if deft, appear at any time after time limited for appearance, he shall on the same day give notice thereof to fl.) the pl.'s solicitor, or (II.> pi., if pi. sues in person, O. 11, r. 15, p. 216. he shall not be entitled to any further time for delivering his defence, or for any other pm'pose than if he had appeared accord- ing to the >vrit, unless Ct. or Judge otherwise orders, O. 11, r. 15, p. 216. Partners sued in name qf firm. to appear individually in their own names, but all subsequent proceeding nevertheless, to be taken in name of firm, O. 11, r. 12, p. 215. /':* probate action. any person not named in writ may Intervene and appear in action as bereto- fore, on filing an affidavit how he is interested in the estate of deceased, 0. 11, r. 16, p. 216. In admiralty action ia rem. any person not named in writ may intervene and appear as heretofore, on tiling an affidavit showing that he is interested in the res under arrest or in the fund in the registry, O. 11, r. 17, p. 216. In actvt7i for recovery of land. aSiy other person not named as deft, in writ^ may by leave appear and deft, on tiling an affidavit showing that he is in possession of the land either by himself or his tenant, O. 11, r. 18, p. 216, , . any person appearing to defend as landlord in respect of property, whereof be is in possession only by his tenant, shall state in his appearance that he appears as landlord, O. 11, r. 19, p. 216. where a person not named in the writ has obtained leave of Gt. or judge to appear and defend, he shall enter appearance as provided in R.G., intituled in the action against the party or parties named in the writ as deft, or defts., and shall forthwith give notice of such appeaxance to the pl.'s solicitor, or to pi., if pL sues in person, O. U, r. 20, p. 216. any person appearing to a writ shall be at liberty to limit his defence to a part only of the property mentioned in the writ, describing that part ' with reasonable certainty in his memorandum of appearance, or in a notice intitnled in the cause, O. 11, r. 21, p. 217. form of notice provided for, 0. 11, r. 21, p. 217.— The form, Schedule A, pt. 1, form 7, p. 289. an appearance where defence is not*limited, shall be deemed an appear- ance to defend for the whole, O. 11, r, 21, p. 217. APPEARANCE, PROCEEDINGS IN DEFAULT OF. Where deft, under disability. pi. may apply to Ct. or judge upon default, for an order that some person be assigned guardian to a deft., if deft, is (I.) an infant ; or (11.^ a person of unsound mind, not so found by inquisition, O. 12, r. 1, p. 217. no order shall be made imless it appears on the heaiing of such appli- cation. 1. that a copy of the writ of summons was duly served. 2. that notice of sudi application was (o) after the expiration of the time allowed for appearance ; and (&) at least six clear days before the c^y,in such notice named for hearing the application, served upon or left at the dwelling house of the person with whom or under whose care such deft, was at the time of serving such wiib Digitized by Microsoft® 318 INDEX. APPEARANCE, PROCEEDINGS IN DEFAULT OF.— continued. ' ^ 2a, and also (in case of such deft, being an infant not residing^ with, or under the care of his father or guardian), served upon or left at the dwelling house' of his father or guardian of such infant, unless the Ct. or judge at the tirae 'of hearing such application shall dispense with such last mentioned service, O. 12, r. 1, p. 217. In writs specially endorsed for debt or liquidated dematid in money. — (Under R.P. 7, p. 66). in case of non-appearance by deft., pi. may sign final judgment for any sum not exceeding the sum endorsed on writ, together with interest at the Kite specified (if any), to date of judgment, and a sum for cost, R.P. 7, p. 67. it shall be lawful for Ct. or judge to set aside or vary such judgment upon such terms as may seem just, R.P, 7, p. 67. where deft, fails to appear, before taking proceeding for default pL shall tile an affidavit of service or of notice in lieu of service as the case may be, O. 12, r. 2, p. 218. where there are several defts , and one or more of them appear to writ, and another or others of them do not appear, pi. may enter final judgment against such as have not appeared, and may issue execution upon such judgment without prejudice to his right to proceed with his action against such as have appeared, O. 12, r. 3, p. 218. before taking proceedings for default, affidavit of service must be filed, O. 12, r. 2, p. 218. In vnrits specially endorsed for accownt (under R.P. 8, p. 67). in defaidt of appearance, an order for the account claimed with all directions now usual in Ct. Ch. in similar cases, shall be forthvri.th made, R.P. 8, p. 68. / . where deft, fails to appear, before taking^ proceedings for default, pL shall file an affidavit of service, or of notice in lieu of service, as the case may be, O. 12, r. 2, p. 218. Where pV 8 claim is for detention of goods and pecuniary da/mages Qmi not for a debt, or liquidated demand only), no statement of claim need be filed or delivered, O. 12, r. 4, p. 218. before taking proceedings for default, pi. shall file an affidavit of service, or of notice in lieu of service, as the case may be, O. 12, r. 2, p. 218. interlocutory judgment made be entered, and a writ of inquiry shall issue to assess the value of the goods and damages in respect of the causes of action disclosed by the endorsement on writ, O. 12, r. 5, p. 219. Ct. or judge may order that instead of writ of enquiry, the value and amount of damages shall be ascertained in any way in which any question arising in an action may be tried, O. 12, r. 5, p. 219. WherepVs claim is for debt or liqiiidated demand. — (AVrit not being specially endorsed), no statement of claim need be filed or delivered. O, 12, r. 4, p. 218. before taking proceedings for default, pi. may file — 1. an affidavit of service, or of notice in lieu of service as the case may be, O. 12, r. 4, p. 218. 2. a statement of the particulars of his claim in respect of the causes of action stated in the endorsement upon the writ, O. 12, r. 4, p. 218. final judgment may, after eight days, be entered by pi. tiling affidavit and statement for amount shown in statement and costs to be taxed, provided that the amount shall not be more than the sum endorsed upon the writ besides costs, 0. 12, r. 4, p. 218. In action for recovery qf land. ' * ' ^ in case no appearance shall be entered, pi. to be at liberty to enter judgnient that person whose title is asserted in writ shall recover possession of the land, O. 12, r. 6, p. 219. On filing an affidavit of service, or of notice in lieu of service as the case may be, 0. 12, r 6, p. 219. In case an appearance be entered, but the defence be limited to part only," pi. to be at liberty to enter judgment, that person whose title is asserted in writ shall recover Jtossession of the part thereof to which the defence does not apply, 0. 12, t. 6, p. 219. Digitized by Microsoft® INDEX. 319 APPEARANCE, PROCEEDINGS IN DEFAULT OF.— continued. , ■ when pi. has endorsed a claim for waste, mesne profits, arrears of rent, or damages for breach of contract upon a writ for the recovery of land, he may enter judgment and proceed aa in the case of land, O. 12, r. 7, p. i!l9. In actions assigned to Chancery Division^ in Probate actions, and in all other actioThs not ^ecially provided for, inicase the party served with the writ does not appear within the time limited for appearance upon filing a proper affidavit of service, the action may proceed as if such party had appeared, O. 12, r. 8, p. 219; , In odTniralty action in rein. where no appearance has been entered the following proceedings may be be taken, O. la, r. 9, pp. 219, 220, 221. 1. notice of sale may be taken out by pi. after the expiration of twelve days from filing of writ, 0. 12, r. 9a, p. 219. notice of sale to be advertised by pi. in two or more public journals, to be from time to time appointed by the -judge, O. 12, r. 9a, p. 219. if there be two or more actions by default pending against the same property, not necessary to take out notice of sale in more than one of the actions, O. 12, r. 9d, p. 220. if pi. in first action does not within eighteen days from the filing of the writ in that action, take out and advertise the notice of sale, pi. in second or any subsequent action may take out and advertise notice of sale, if he shall have tiled in the registry a writ of sum- mons in rem in such second or subsequent cause, O. 12, r. 9c2, p. 220. within six days from the time when the proceeds have been paid into the registry, the pi. In each action shall, if he has not done so, file his proofs in the registry and have the action placed on the Ust for hearing, O. 12, r. 9e, p. 2iO. 2. after expiration of six days from advertisement of notice of sale in public journals, if an appearance has not been entered, pi. to file in the registry. (a) an atfidavit to the effect that the said notices havebeen duly advertised with copies of the journals annexed. ^ (b) such proofs as may be necessary to estaWish the claim. (c) a notice of motion to have the property sold, O. 12, r. 96, p. 220. 3. judge may order property to be appraised and sold, and the proceeds to be paid into registry if judge is satisfied that the claim is well founded when the motion comes before him, O. 12, r. 9c, p. 220. 4. in an action of possession, after the expiration of six days from the filixig of the writ, if an appearance has not been entered, the pi. may, on filing in the registry a memoradum, take out anotice of proceed- ing in the action, to be advertised by him in two or more pubUc journals to be from time to time appointed by the judge, O. 12, r. ij/", p. 320. 4a. after the expiration of six days from the advertisement of the notice ■ of proceedings in the said journals, if an appearance has not been entered the pi. shall (a) file in the registiy an affidavit to the effect that the notice has been duly advertised, with copies of the journals annexed, (fc) tile in the regietry such proofs as may be necessary to establish the action, (c) have the action placed on the list for hearing, 0. 12, r. 9^, pp. 220-221. 4&. judge may pronounce for claims when action comes before him, and decree possession of the vessel accordingly, if he is satisfied that claim is weU founded, O. 12, r. 9A, p. 221. APPKLLATE JURISDICTION. from inferior Cts., vested in H.O., s, 4, p. 2. vested in C.A., s. 4, p. 2. of C.A. in Ch., or in bankruptcy, not transferred to H.C., a. 17, p. 10. of C.A. in Ch., and in bainkrupt<^, transferred to C.A., s. 18, p. 11. APPLICATION. —See also Orders. to transfer cause from Inferior Ct. to H.C, may be made to H.C. by any party to a cause beyond jurisdiction of Inferior Ct., s. 90, p. 60. for stay of proceedings may be made by motion in a summary way, s. 24, p. 18- Digitized by Microsoft® 320 INDE3C APPLICATION.— continued, to be commenced as heretofore, if not heretofore commenced by action, Bull> cause or citation, R.P. 1, p. 65. for correction of mis-joinder or non-joinder of parties may be made, R.P. 9, p. 68. for names of co-partners suing or being sued in name of firm may be miade, R.P. 11, p. 69. to disallow counter-claim as inconvenient, may be made by pi., K.P. 20, p. 72. to have action tried in any of the ways, may be made by deft., R.P. 31, p. 75— See also Trial, where by R.C. any application is authorised to be mad« to the Ct. or a judge in an action, such application if made to a D.C. shall be made by motion, O. 48, r. 1, p. 274.— See Motion, eveiy application to the judge of C.A. shall be by motion, O. 52, r. 9, p. 281. wherever an application may be made either to Ct. below or to C.A., or toa judge of Ct. below or of C.A., it shall be made in the first instance to the Ct. or judge below, O. 52, r. 8, p. 281. APPLICATIONS AT CHAMBERS.— See Chambers. APPOINTMENT. of judges of H.C. to be by letters patent, s. 5, p. 3. of L.C.J. of England, M.R., C.J. of C.P., andC.B. to be same as heretofore, s. S, p. 3. manner of appointment of judges of H.C. to be as Puisne Justices and Puisne Barons of Superior Cts., have heretofore been appointed, s. 6, p. 3. no fresh appointment to be niade while whole number of Puisne Justices and Junior Barons exceeds twelve, s. 5, p. 3. of the three unnamed, ordinary judges of C.A., to be either within one month of, or after commencement of Act, b.^6, p. 4. of the three unnamed ordinary judges of C. A.' to be by letters patent, s. 6, p. 4. of additional judges of C.A. to be by Royal sign manual, s. 6, p. i. of judge of H.C. as judge of C.A., vacates former office, a. 7, p. 5. qualifications for appointment of judges, B. 8, p. 5. no further appointment of judge to any Ct., transferred to B.C. or C.A., s. 22, p. 14. of ordinary and additional judges of C.A. (if not Peers or P.C.), to dettrmine rank in Supreme Ct., B. 10, p. 6. of judges of H.C. (if not judiges of C.A.X to determine rank in Supreme Ct., s. 10, p. 6. power of appointment, belonging to existing judges, to be retained it appointed judges of H.C. or ordmaiy judges of C.A., a. 11, p. 6. of assessors by H.C. or C.A., s. 66, p. 41. of official referees, s. 83, p. 65, see also Referees Official of officers of Supreme Ct., b. 84, pp. 56-57. of (I.) officers to perform duties to Supreme Ct. generally ; (IL) officers attached to H.C. ; (III.) officers attached to C.A. ; (IV.) commisffloneis to take oaths or affidavits in Supreme Ct., to be by Ld. Ch., B. 84, pp. 56-57. of offii;ers attached to C. Div. of H.C, who have been heretofore appointed by M.R., to continue, while so attadtied, with MR., s. 84, p. 57. of all other officers attached to any division of H. C. , by president of division, s. 84. p. 57. of all officers attached to any judge to be made by such judge, s. 84, p. 57. of sheriffs to be same as to order, and course in Ex. Biv. of H.C, as here- tofore in Ct. of Ex., s. 96, p. 62. ARBITRATORS— See Referees (generally) ; Referee (official) ; Referee (special). ARCHBISHOPS. and bishops eligible to sit as assessors in Ecclesiastical causes in C.A., s. 21, p. 13. if P.C, to advise as to O.R., as to asaesaoxs in Eocleaiafitical causes in C. A., s. 21, p. 13. ASSEMBLY— See also Council of Judges. of council of Judees of Supreme Ct. to be once at least in every year, on daya to be fixed by Ld. Ch., with concunence of C.J. of England, s. 76, p. &■ Digitized by Microsoft® INDEX. 321 ASSEMBLY.— continued. of council of judges to consider (I.) operation of judicature Act, 1§73 f (fl.) E.G. (III.) working of offices; (IT.) arrangements relative to duties of officers, and_ also to ; (V.) inqmre and examine into any defects in existing procedure or adiniiustration of laV in H.C., or C.A., or in any inferior Ct. to whicli appeal lies to C.A. or H.O., s. 75, p. 49. ASSESSORS. of Ct. of Lord Warden of the Stannaries transferred to C.A, s. 18, p. 11. iio^ assist-in C.A., in hearing appeals in Ecclesiastical causes, s. 21, p. 13. in Ecclesiastical causes may be, archbishops and bishops, s. 21, p. 13. Ct. may call in aid of one or more assessors specially qualified, s. 56, p. 41. Ot. may try and hear causes mth assistance of one or more assessors specially qualified, s. 56, p. 41. remtmeration to be paid such special, to be determined by Ot., s. 56, p. 41. trial before judge or referee sitting with, R.P. 30, p. 75, see Trial. ASSETS. of insolvent estates to be administered as in bankruptcy, s. 25, p. 19. ASSIGNMENT. of action to division of H. C. to be endorsed on writ of summons, R. P. 2, p. G6, of debts and choses in action, s. 25, p. 21, see Choses in Action. action not to abate by death, marriage, or banlcruptcy, if action does not become defective by, E.P. 17, p. 70. ,of estate or title pendente lite, action may be continued against person upon ' whom such estate or title has devolved, R.P. 17, p. 70. ASSIGNMENT OF BUSINESS.— See Distribution of Business. ASSISTANCE— See also Assessors ; Referees. .of^ assessors in Ecclesiastical causes in C.A., a. 21, p. 13. ' ''' of referees and assessors, s. 56, p. 41. ASSIZE, COMMISSION OP. ' appointment of, s. 29, p. 24. questions of fact may be ordered to be tried by commissioners under, s. 29, p. 25. causes not involving questions of fact may, by consent, be tried by com- - missioners mider, s. 29, p. 25. ' no judges appointed before passing of Act, not liable to act on, to be now _ nable to act on, s^ 11, p. 6. '^jurisdiction of judges named in, s. 29, p. 24. -to be held before judges of Q.B., CJ"., and E.X., D. W., s. 37, p. 32. (i.) ordinary judges of C.A., (II.) judges of C.Div., (IlL) sergeants at law, (IV.) two Ct's. may be included in, s. 37, p. 32. ' commissioners may sit at any time and place, s. 36, p. 23. . marshal attending not to be interfered with by Act, s. 77, p. B2. commissions granted by H.M. to be as valid as if named in, Act, s. 29, p. 24. commissioners sitting on, to be deemed to constitute a Ctiy of H.C., s. 29, jurisdiction of Cts. created by, transferred to H.C., s. 16, jUaO. in Counties Palatine of Lancaster and Durliam, provision a^ to, s. 99, p. bi , saving as to, s. 93, p. 61. JlSSOCiATBS— See Officers. of transferred Cts. to be attached to Supreme Ct., s. 77, p. 5U. Att'ACHMENT. , ^ ... persons entitled tp enforce judgments, &c., by, may apply by motion m a suinnuCry way to restrain proceediiigs, s. 24, p. 18. ATTAdHMBNT OP DEBTS; , ^, j u ^ j ..^ judgment debtor may he orally examined as to whether any and what debts^ are owing to liim, 6. 40, r. 1, p. 268. ^' Application for Order to Examine. . , - ' may be made -where a judgmentis for the recovery by or payment to any . person of money, 0. 40, r. 1, p. 268. . ,. „ .n , ooo may be made by party entitled to enforce judgment, O. 40, r. 1, p. *8. may be made to the Ct. or a judge that debtor be orally exammed before (I.) an officer of the Ct. or (II.) such other person as. Ct. or judge shall -.■• " ■ appoiiit, t)."40, r. 1", p.^ ~ ;: . ^ ' . . , _ U Digitized by Microsoft® 34? INDEX. ATTACHMENT OF DEBTS.— continued. Order for Examination^ dsc. ^ Ct. or judge may make an order (I.) tor the examination of judgment dehtor, and (II.) lor the production of any books or documents, O. 40, r. 1, p. 21)8. Gfbrnlshee Order. Ct. or judge may order that all debts owmg or accruing from garnishee to judgment debtor shall be attached to answer judgment debt, O. 4u, r. 2, p. 268. application for order may be ex parte by judgment creditor, O. 40, r. ^2, p. 268. ■■ ' ' . . ' application for order may be either before or after oral examination, O. 40, r. 2, p. 268. _ ' ' application for order may be upon affidavit (I.) by judgmentcreditor, or(lI.^ .,, Jhis 3olicitor stating (cp) that judgment has beenrrecovered(&) that it is sClll unsatistied (c) to what amount (d) that any other person is indebted to judgment debtor, and is within the jurisdiction, O. 40, r. 2, p. 268. - '^ garnishee may be ordered' by same or subsequent order to appear before Ct. or a judge or an ofBcer of Ct., as Ct. or judge shall appoint to how cause why he should not paly judgment creditor the debt due from him to ■ the judgment debtor, or so much thereof as may be sufficient to satisfy judgment debt, O. 40, r. % p. 268 ' 1 debts in hands of garnishee to be bound by (I.) service of order that debts due or accruin.; to judgment dSebtor shall be attached, or (II.) notfce thereof, O. 40, r. 3, p; 269. *• Execution against Oamishee. > ^ Ct. or judge may order execution to issue if (I.) garnishee does not forth- with pay into Ct. (a) the amount due f ronn him to the judgment debtor (>r (&) an amount equal to judgment debt, and (c) does not dispute debt due ... or claimed to. he due fromhim to judgment debtor or if (11.) he does not appear upon summons, O. 40, r. 4, p. 2^. ' ' ., execution may issue without any previous writ or process to levy (fc) the amount due from garnishee or (II.) so much thereof as may be sufficient to satisfy judgment debt O. 40, r. 4, p. 269*. payment made by or execution levied upon garnishee to be a valid di^harge to him as against judgment debtor to theamouut paid or levied, although such proceedings may be set: aside or judgment reversed, O. 40, r. 8, p. 270. Dispute qf Liability by Garnishee, if garnishee disputes. his liability, Ct. or judge, instead of making onfer , that execution shall issue^ may order that any issue or question necessajy for determining his liability be tried or determined in any manner ini which any issue or question in an action may be tried or determined, O. 40, r. 5, p. 269. whenever it suggested that the debt sought to b» attached belongs to some third person or that any third person has a lien or chai^ upon it, Ct. or judge may order such third person to appear and state' the nature an^ particulars of his claim upon such debt, O. W, r. 6, p. 269. -'-' after hearing allegations of third party or any other person ordered to appeax < or jn case of third party not appearing Ct. or judge may order (a) execution to issue to levy amount due from garnishee or (b) any issue or question to be tried or determined and (D.-may bar claim of third party or (II.) may make such order as shall seem fit on: terms, 0. 40, r. 7, p. 269. . Debt attachment book, a, debt attachment book shall be kept by proper officer, O. 41, r. 9, p. 270. to contain entries of attachment and proceedings thereon with (I.) names (II.) dates (III.) statements of amount recovered (IV.) and otherwise, O. 40, r. 9, p. 270. copies of any entries made therein may be taken on application to proper officer, O. 40, r. 9, p. 270. Costs, of application or any attachment of debts and of any proceedings arisiag from or incidental to such application shall be in the discretiou of Ct'-or , ^udge, 0, 40. r. 10, R. 270. .. ., . Digitized by Microsoft® INDEX. 323 ATTACHMENT— WRIT OF. a writ of attachment to have same effect as -writ of attachment issued out of Ct. Ch. has heretofore had, O. 39, r. 1, p. 268. no Avrit of attachment to be issued without leave of Ct. or judge, O. 39, r. 2, p. 268: application may he made on notice to party against whom attachment ia to be issued, O. 39, r. 2, p. 268. ATTENDANCE. Ct. may make order to prevent deft. '3, in an action in which he has no interest, E.P. 23; p. 72. in House of Lords, an excuse of non-attendance of additional judges of C. A., s. (^ p. 4. " " ATTORNEYS — See Solicitors of Supreme Ct. ; Commissioners of Supreme Ct. jurisdiction of Cts. over, 3. 87. pp. 58-59. AUTHORITY— See also Jurisdiction. ! of -judges of H.C. to be equal, 3. 5. p. 3. of judges of C.A. to be equal, s. 6, p. 5. t .not incident to admiustration of justice, to be exercised by every judge of ' H.C. (except those to be performed by Ld. Ch., C. J. of England, M.E.. C.J. of C.P., and C.B.), s. 12, p. 7. incident to jurisdictions transfen^d to H.C, to be included in jurisdiction so transferred, s. 16, p. 10. AWARD OP. ARBITRATORS— See Referees (generaUy); Referee, Special; Referee, OfBciaL BAIANCE. •under counter-claim ; Ct. may give judgment for deft, for E.P. 21,: p. 72. BANC. . all business belonging to Q.B., C.P., and Ex. Div., which would foitaerly , havebeen transacted by Ct3. sitting in, may be transacted by, s. 41, p. 34. BANK OF ENGLAND.— See Distringas. BANKRUPTCY.— See also Pleading (7J, Marriage, Death, and Bankruptcy of Parties, insolvent estates of deceased persons 60 be Administered as in, s. 25, p. 19. of parties not to abate action if cause of action survive or continue and does not become defective, R-P. 17, p. 70. in case of bankruptcy of any pslity to an action Ct. may order trustee or other successor in interest to be made a party or be served with notice, .R,P. 17, p. 70. BANKBUPTCYj OHIBF JUDGE IN: to be included in term, London Ct. of Bankruptcy, s. 100, p.. 63. BANKRUPTCY, C.A. in, jurisdiction of C.A, in Chancery, sittingas, ntft transferred to H.C., s. 17, p. 10, but transferred to C. A., s. 18, p. 11. ' BANKRUPTCY, LONDON COURT OP ;. interpretation of term, 3. 100, p. '63 to be united and consolidated with other Cts., the whole to constituta Supreme Ct., 3. 3, p. 2. 1 jiurisdictionof, transferred to H.C, s. 16, p. 10. appeals from, transferred to C.A., 3. 18; p. 11. ^: pending business in, transferred to Ex. Div., s. 3t p. 30. exclusive jurisdiction' of, assigned to Ex. Div., s:''34, p. 31. rules and orders of Ct. of (except so far as expressly varied), to be in f orco in H.C. and C.A., s, 70, p. 47. the statutes referring to, p. 146. •BARR.ED.._..o;,..":': -l: .'.;;■-■ : ' " nb claim of cestui que trust against his tnistee for any property held, on express trust, or in respect of breach of trust to be, by statute of .limitations, . . - B.-25, p. 20. " ' ■ '■■' gARRISTBE AT LAW. Barristers of ten years standing eligible for judgeships of H.C, 9. 8; p. S. note on, p. 157. Digitized by Microsoft® 3^4 INDEX, BARONS OF EXCHEQUER— See also Lord Chief Baron of the Exchequer, the several junior barons to be first judges of H.C., s. 5, p. 2. appointment of such of, as shaJl not be appointed judges of C.A., to Ex. Div. of H.C.,8. 31, p. 26. BENEFICIAL INTEREST. not being merged in Equity, no merger to take place by operation of law only, 3. 25, p. 20. BENGAL, FORT WILLIAM IN— See India. BILL IN CHANCERY. abolished and replaced Iw- an action R.P. 1, p. 65, commenced by a "writ of summons, R.P. 2, p. 65. BILL OF EXCHANGE. action on, writ may be specially endorsed, R.P. 7, p. 66. all or any persons severally, or jointly and severally, liable on, maybe joined. as parties) R.P. 16, p; 70. BILLS OF EXCEPTIONS, abolished, E.P. 49, p. 80. BISHOPS. and archbishops eligible to sit as assessors in Ecclesiastical causes as provided by G.R., 3. 21, p. 13. if P.C., to advise as'to GvR., as to assessors in Ecclesiastical Causes in C.A.,. s. 21, p. 13. BOMBAY— See India. BOND. for payment of liquidated amount, writ may be specially endorsed in action. on, R.P. 7,p. 66. BOOKS. for entry of attachments and proceedings thereon, O. 40, r. 9^ p. 270. cause book for filing of copy writs on issue of same, O. 4, r. 8, p. 207. caveat release book, 0^.4, r, 12, p. 208. documents, papers, and other chattels in possession of any Gt. or office,, transferred to Supreme Ct., d. 92, p. 60. BUSINESS. of H.C., C.A., or Divisional or other Ct., or in Chambers to be distributed among several officers as may be directed by R.C., s. 77, p- 51. transfer of pending business, s. 22, pp. 14-15, see also distribution of business. BREACH OF TRUST. cestui que trust not to be barred by statutes of limitations against his^ trustee for, s. 25, p. 20. BRIEF— See also Costs. statements to be as brief as the nature of the case admits, R.P. 18, p. 71. CANCELLATION. of deeds and other written instruments, causes as to, assigned to C. Div.„ s. 34, p. 29. CAPABILITY. of existing judges to perform all duties (subject to change), which they are now capable of performing, s. II, p. 6. CARGO. proceedings to be taken in D.R. may include proceedings for arrest or detention of a ships, s. 64, p. 44. CASES. and points may be reseiTed for or directed to be argued before D. Cts., s. 46, p. 37. CAUSE -See also Action. interpretation of term, s. 100, p. 63. CAUSES AND MATTJSRS— See also Transfen-ed Causes ; Ecclesiastical Causes ;. Pending Business ; Distribution of Business, assigned to an improper Div., may on a summary application be transferred: to proper Div,, s. 35, pp, 31-32. pending in H.C. and C.A. not to be restrained by prohibition or iiyunction,, hut matter of equity to be relied on by way of defence, s. 24, p. 18. Digitized by Microsoft® INDEX. 32s CAUSES AND MATTERS.— continued. may be transferred from one Div. or judge of H.C. to any other Div. or judge, s. 36, p. 32. commenced in or transferred to H.C, to be distributed among the Divs. and judges of H.C, s. 33, p. 28, see also Distribution of Business, assigned to particular Divs. of H.C, subject to E.C., s. 34, p. 29, see Distribution of Business, pending, arrangements for transfer of, a. 22, pp. 14-15, see also Tronsfen'ed Causes ; Pending Business, depending, assignment (subject to power of transfer) of, to vaiioua Divs. of H.C, s. 42, p. 35. fully lieai'd at commencement of Act, provided for, s. 22, p. 14. assigned to C Div. and to P.D. and A. Div., to be transacted and disposed of in first instance by one judge only, s. 4a, p. 35. not proper to be heard by a single judge, to be heard by D.C., s. 40, p. 34. CAUSES OF ACTION. "s J -^ . joinder of several, R.P. 22, p. 72. if cause of action survive, action not to abate by marriage, death, or banlc- ruptcy of any party, R.P. 17, p. 70. if it appear that several causes of action cannot conveniently be tried together, Ct or judge may order separate trials, R.P. 22, p. 72. forms of writ and endorsement, see Writ of Summons. CESTUI QUE TRUST. not to be barred by statute of limitations against his trustee, where property is held on express trust or in respect of breach of trust, s. 25, p. 20. CHAMBER— See Exchequer Chamber, Court of. CHAMBERS. jurisdiction of judges sitting in, to be included in jurisdiction transferred to H.C, s. 16, p. 10. R.C may be made by order in council, before commencement of Act, for the regulation of the judges of the H.C sitting in, s. 68, p. 45. orders made by judge in (except orders by consent, and as to costs left in discretion of judge), may be set aside or discharged by D.C or judge sitting in Ct;, s. 50, p. 38. CHAMBERS, APPLICATIONS AT. every application authorized by R.C. to be made in a summary way by summons, O. 49, r. 1, p. 276. all business to be transacted, and all authority and jurisdiction in respect of the same as under the Act, R.P. or R.C may be transacted or exercised by a judge at Chambers, to be transacted and exercised in Q.B., C.P., and Ex. Div. by a master, and in P.D. and A. Div. by a registrar, with exceptions, O. 49, r. 2, p. 278. The following proceedings and matters not to be transacted by master or registrar : — 1. All matters relating to criminal proceedings or to the liberty of the subject. 2. The removal of actions from one division or judge to another division or judge. 3. The settlement of issues, except by consent. 4. Discovery whether of documents or otherwise and inspection, except by consent. 5. Appeals from district registrars. 6. Interpleader other than such matters arising in interpleader as relate to practice only, except by consent. 7. Prohibitions. 8. Injunctions and other orders under sub-section 8 of sec. 25, or under R.P. 43, 44, and 45. 9. Awarding of costs other than the costs of any proceeding before such master. 10. Reviewing taxation of costs. 11. Charging orders on stock funds, annuities, or share of dividends, or annual produce thereof. 12. Acknowledgments of married women, 0." 49, r. 2, pp. 276-277. Digitized by Microsoft® 3z6 INDEX. CHAMBERS, APPLICATIONS AT.— continued. , i, miiater may refer to a judge any matter which appears to him proper for the decision of a judge, O. 49, r. 3, p 277. judge may either (a (dispose of the matter, or (&) refer the same back to the master with such directions as he may think fit, O. 49, r. 3, p. 277. any person may appeal from any order or decision of a jnaater affecting him to a judge at Chambers, 0. 49, r. 4, p. 277. . , appeal to be by summons (a) within four days after the decision com; , plained of, or (&) such further time as may be allowed by a judge or maater, O. 49, r. 4, p. 277. . %peal to be no -stay of proceeding unless so ordered by a judge ,or master, O. 49, r, 5, p. 277. every appeal to the Ct. from decision at Chambers in Q.B., C.P., and Ex. Div. to be by motion, and to be made within eight days after decision appealed against, O. 49, r. 4, p. 277, i i CHANCELLOR— See Lord Chancellor ; Vzoe-Chancellorg. CHANCELLOR OF DUCHY AND COUNTY PALATINE OF LANCASTER, appellate jurisdiction, transferred to C.A., s- 18,- p. .11. office, position, and functions of, not to be affected, s. 95, p. 61. CHANCELLOR OF THE EXCHEQUER, not to be judge of H.C. or C.A., and to cease to exercise any judicial functions exercised by him as judge of Ct. of Ex., a. 9B, p. 61, U duties, salaries, and other incidents of office not to be affected, s. 96, pp. 61-62. CHANCERY — See Appeal, Court of, in Chancery ; Lancaster, C.A., in Chancery. CHANCERY DIVISION. to be one of five DivS. of H.C, s. 31, p. 27. first judges of, to consist of (I.) Ld. Ch. (president) : (IL) M.R. ; (HI.) the three Vice-ChanceDors (if nm appointed jndgtfs of C.A.), s. 31, p. 26. , assignmei^t of certain business to, viz: — (I.) business pending in C^.- Ch. ; ill.) business given to Ct, Ch., by Act of Parliament (except appeals from County Courts) ; (III. ) various special subjects indicated, s. 34, p. 29. distribution of business among judges of, s. 42, p. 35. causes in, to be disposed of in mst instance by one judge (subject to E.C.) a. 42, p. 35. pending business in Ct. Ch., to be heard before same judge of, s. 42, p. 35. f utui;e business in, may be assigned to particular judge by marking cause with name of desired judge, s. 42, p. SS. D. Cts. of, may be held with concurrence of president of, 8. 43, p. 36. appointment of officers attached to, s. 84, p. 57. CHANCERY, HIGH COURT OF. interpretation of term, s. 100, p. 62. , united and consolidated with other Cts., the whole constituting Supreme Ct., s. 3, p. 2. jurisdiction of, as Common Law Ct., as well as Ct. of Equity, transferred to H.C., 8. 16, p. 9. jurisdiction transferred to C. A., s. 18, p. 11. assignment of causes and matters pendm^ in, to C. Div., s. 34^ p. 29 ; and to same judge of C. Div., s. 42, p. 35. same relief as ought to have been given by, to be given to pi. or deft. claiming any equitable estate or right, s. 24, p. 16. same recogrution of equitable estates, titles, rights, liabilities, incidentally appearing in a cause as would be observed by, s. 24, p. 17. directions usual in cases of account to be given when writ specially endorsed for account, R.p. 8, p. 68. procedure as to next friend of married women and infants, to be continued. R.P. 15, p, 70. matters (the exclusive jurisdiction of which, is given by Act of Parliament to) assigned. to C. Div., s. 34, p. 29. new rules of pleading to be substituted for those used in, R.P. 18, p. 71'. ' lules as to right of trustees, mortgagees, and other persons, to payment of costs, on of particular estate or fund, tb be continued, B.P. 47, p. 80. Digitized by Microsoft® INDEX. 327 CHANCERY, HIGH COURT OF.— continued. " " . j suits hithavto commendert by bUl, or information in, to be instituted in H.C by action, R.P. 1, p, 65. note on the Ct., pp. 134-138. CHARGE. salaries, aUowancfes, and pensions of judges to be a charge on Consolidated Fund, a. 15, p. 9. CHARGES ON LAND. causes refeiTing to, raising of portions and other, assigned to C. Div., n. 34, c»ui«s xs to sale and distribution of proceeds of property, subject to lien or charge, assigned to C. Div., s. 34, p. 29. CHARGING OP STOCK AND SHARES AND DISTRINGAS.-See Stock : Distringas. CHARITY. jurisdiction of Ld. Ch. as Tisltor of, not transferred to H.C. s. 17. p. 11. CHARITABLE TRUSTS. causes as to execution of, assigned to C. Div., a. 34, p. 29. CPATTELS-See Boots. ' ' " . CHEQUE. yrnt may be specially endorsed in action on, R.P. 7, p. 6K. CHIEF JUSTICE— See Lord Chief Justice oi England ; Lord Chief Justice of Common Pleas. CHIEF JUSTICE OF H.C. OF JUDICATURE. at Fort William In Bengal, or Madras or Bombay, eligible »s additional judges of C.A., s. 6, p. 4. CHIEF BARON— See Lord Chief Baron of the Excheauer. CHOSES IN ACTION. may be absolutely assisned by (I.) writing under hand of assignor ; (IL) ex- ^ ' - pr«.!S notice in ■writing given to person, from whom assignor would be entitled to claim chose in irction, 5. 25, p. 21. aisslgnment by way of charge only, excluded from rule, s. 25, p. 21. prior equities not destroyed by, assignment of, s: 25, p. 21. legal right to, to pass from date of notice, 3. 25, p. 21. assignment to pass aU legal and other remedl'e.s and power to give discharge " ■• ■ for same, without concurrence of assignor, s. 25, p. 21. debtor, trustee, or other person liable in respect of chose in action, may, if he have notice of conflicting claims (I.) call on persons claiming to interplead, or (11.) pay same into H.C. under Trustee Relief Acts, 9. 25, p. 21. CHRISTMAS DAY not to be reckoned in computation of limited time, 0.51, "•' r; 2, p. 279. CHURCH OP ENGLAND. archbishops and bishops Df, eligible to sit ais assessors in Ecclesiastical causes in C.A., as provided by G.R., s. 21, p. 13. CIRCUIT — See also Assize, Commissions of. jurisdiction of judges of H.O. on, s. 29, pp. 24-25. sittings on, a. ,37, SP- 32^33. saving as to, s. 93, p. 61. R.C. may be madeby order in council before commencement of Act, for regulation of, 3. 68, p. 45. , R.C. to provide times and jdaces, at which circuits are to be holden and business to be transacted thereat, s. 6Sj p. 46. . patronage of judges going, not to be affected, s. 93, p. 61. Circuits and issue of commissioners not to be affected^ except as expressly directed by Act, or until new commissions are issued in pursuance thereof, 3. 93, p. 61. position salaries and duties of officers of Superior Cts. Who perform duties in relation to either the civil or criminal business transacted on circuit not to be affected, s. 93, p. 61. ' CITATIONS. ...... „ , . , in Probate Ct. abolished, R.P. 1, p. 65. Digitized by Microsoft® 328 INDEX. CIVIL CAUSE— See also Action ; Cause. law and equity to be concuiTently administered by H.C. and C.A. in every, commenced in H.C, s. 24, pp. 16, 17, 18, 19, see Rules, continuation of pending, a. 22, p. 15, see Pending Business. CLAUSE— See Saving Clause. CLAIM — See also Statement of Complaint. legal to be recognized (subject to recognition of equitable claims), s. 24, p. 18. ' nature of, to be endorsed on writ of summons, R.P. 2, p. 65. to chose in action when disputed, person liable may (I. ) call on claimant to interplead, or (II.) pay amount into H.C. under lYustee Relief Acts, s. 25, p. 21. printed statement of, to be filed and delivered by pi., B.P. 18, p. 71. may be altered, K.P. 18, p. 71. when statement of, insufficient, judge may direct issue to be prepared, B.P. 19, p. 71. CLERKS OF RECORDS AND WRITS— See also Officers. of any transferred Ct. to be attached to Supreme Ct., s. 77, p. 50. COLLEGE. jurisdiction of Ld. Ch. as visitor of, not transferred to H.C, s. 17, p. 11. COLLISIONS. at sea, where both ships in fault, rules of Ct. of Admiralty to prevail over . those of Cts. of Common Law, s. 25, p. 22- COMMENCEMENT OP JUDICATURE ACT, 1873. generally, 2nd November, 1874, 3. 2, pi 1 ; postponed to 1st November, 1875, p. 306. ' exceptions as to vacations, s. 27, pp. 23-24. exceptions as to D.R., s. 60, pp. 42-43. exceptions as to R.C., s. 68, pp. 45-46. ' three ordinary judges of C.A. may be appointed within one month before, s. 6, p. 4. ' COMMISSION — See Assize ; Nisi Prius ; Oyer and Terminer ; Gaol Delifery ; Circuits. COMMISSIONS. for discharge of civil and criminal business on circuit, not to. be affected except as expressly directed, s. 93, p. 61. jurisdiction as to issue of, not transferred to H.C^ s. 17, p. 10. in couties palatine, provided for, s. 99, p. 62. COMMISSIONERS— See Treasury. appointed under Act, to be deemed to constitute a Ct. of H.C, s. 29, p. 25. may sit at any time or place, s. 26, p. 23. any party with leave, may require c^uestions of fact or partly of fact, and partly of law, to be tried by, sitting in London or Middlesex s. 29, p. 25. witnesses whose attendance in Ct. for sufficient cause may be di-pensed with, may be examined before, R.P. 36, p. 76. COMMISSIONERS TO TAKE OATHS AND AFFIDAVITS. every person authorized at commencement of Act, to administer oaths in any Ct. transferred to H.C, to be, in all causes and matters in H.C. andf C.A., s. 82, p. 55. Id. Ch. to appoint aU, s. 84, pp. 56-57: COMMON LAW COURT. jurisdiction of Ct. Ch. as a, transferi'ed to. H.C, s. 16, p. 9. new rules of pleading substituted for those used in Common Law Cts,, R.P. 18, p. 71. rules of, in collisions at sea where both ships in fault to give way to rules of" Ct. of Admiralty, s. 25, p. 22. COMMON LAW PROCEDURE ACT, 1852. sections 25 and 27 referred to R.P. 7; p. 66. the sections at length pp. 99-100. COMMON LAW PROCEDURE ACT, 1854. powers of ct. as to references givepiby, given to H.C, s. 59, p. 42. sections referring to references at length, pp. 87-90. Digitized by Microsoft® INDEX. 329 COIIMON PLEAS, COURT OF. to be untted and consolidated witli other Cts., the whole to constitute Sapreme Ct., s. 3, p. 2. jurisdiction of, transferred to H.C., s. 16, p. 9. exclusive jurisdiction of, assigned to C.P. Div., s. 34, p. 30. COMMON PItBAS, COURT OF, AT LANCASTER— see Lancaster,' Court o£ COMMON PLEAS, DIVISION. to be one of the five Divs. of H.C., s. 31, p. 26. fii'st judges of, to consist of {I.)C.J., of C.P. (president); (II.), the other judges of C.P. fif not appointed ordinary judges of C.A.), s. 31, p. 26. assignment of certain business to, viz., (I.), business pending in G.P., the Ct. of C.P. at Lancaster, and Ct. of Pleas at Durham ; (II.), causes and matters in exclusive jurisdiction of C.P., s, 34, p. 31. judges of, to be five in number, s. 31, p. 27. deficiency in number to be supplied by appointment under H.M.'s Royal Sign Manual, s. 31, p. 27. business belonging to, which, according; to practice of Superior Cts. of C.L., would be disposed of by Ct. sitting in Banc, to be transacted by D.C.'s, s. 41, p. 35. divisional Cta. for business of, s. 41, p. 34. COMMON PLEAS, LORD CHIEF JUSTICE OF— see Lord Chief Justice of C.P. ; Puisne Justices. COMMONS — see House of Commons. COMPENSATION. of officers attached to person of judges to be only such as they may be entitled independently of this Act, s. 85, p. 57. COMPLAINT— see Statement of Complaint. CONCURRENT. administration of law and equity, s. 24, p. 16 — see also Rules. CONDITION. on which appeals from H.C. to C.A. granted to be regulated by R.C. and orders of Ct., 3. 19, p. 12. CONFLICT. between Rules of Equity and Rules of C,L., with reference to the same matter, Rules of Equity, to prevail, s. 25, p. 2.3. CONSENT, TO TAKE EVIDENCE BY.— See Affidavit. evidence by orders made by consent not to be subject to appeal except by leave of Ct. or judge, s. 49, p. 38. of pi. without next friend, and of next friend, of pi., to be obtained before adding as party, R.P. 9, p. 68. CONSOLIDATED FUND. to be charged with salaries, allowances, and pensions of judges, a. 15, p. 9. CONSOLIDATION. , ^ „^ . ^ . actions in any div. or divs. may be consolidated by order of Ct. or judge in manner heretofore in use in the superior Cts. of C.L., O. 46, r. 4, p. 273. CONSTITUTION. of Supreme Ct., s. 3, p. 2. of H.C, s. 6, p. 3. of C.A., s. 6, p. 3. of C.A. when hearing Ecclesiastical causes, s. 21, p. U. . . , of Cts. to be deemed good, notwithstanding vacancy in office of judge, a. 7, p. 5. CONSTRUCTION. of terms used in Act, s. 100, p. 62, CONTEMPT OF SUPREME CT. ■ ,. , j ^i. persons failing to comply with order of H.C. or C.A^ as to boots and other chattels in his custody to be guilty of a, 3. 92, p. 61. CONTINUATION. of pending business provided for, s. 22, p. 15. CONTRACT. .^ , , ^ ^ ■ \.i .^ . ,. relief to be given pi. or deft, claunjng, equitable estate, or right against s, 24, p. 16. • ■ - Digitized by Microsoft® 30 INDEX. CONTRACT.— continued. _ '-"' . action on simple, or under seal, express or implied may hare special enc^orse- ment, R.P. 7, p. 66. ' all or any persons severally or jointly and severally liable on one, may be joined as parties, R.P. 16, p. 70. causes ajs to rectitication, setting aside, or cancellation of written, assigned to C. Div., s. 34, p. 29. causes as to specific performance of between vendor and purchaser (in- cluding contracts for leases), assigned to C. Div., s. 34, p. 29. made by mortgagor jointly with any other person, and a exception to the new rule as to suits for possession of land by mortgagors, s. 25, p. 20. rules of Cts. of Equity as to stipulations as to time, &c., not of the essence of the contract, s. 25, p. 23. ^ CONTRIBUTION. claimed by deft, from third parties, order may be made on notice to determine question, R.P. 12, p. 69. COPIES OF DOCUMENTS— See also Documents, may be obtained on notice, R.P. 26j p. 74. to be evidence in United Kingdom if purporting to be sealed with seal of D R., s. 61, p; 43. CO-PARTNERS. -^ee also Partners. may sue or be sued in name of firm, R.P. 11, p. 69. judge may direct names of co-partners suing or being sued in name of 'firm to be furnished, R.P. 11, p. 69. COSTS. of, an incident to all proceedings in H.C., to be in discretion of Ct. (Subject , to ■provisions of Act), R.P. 47, p. 80. of trustee, mortgagee, or other persons hitherto payable under Rules of Equity out of particular fund, to be still so payable, R.P. 47, p. 80- orders made by H.C. or any judge as to coats in discretion of Ct. not to be subject to any appeal except by leave, s. 49, p. 38. incurred by use of any more prolix or other forms of writs and endorse- ments, than those prescribed by R.C., to be home by party using same unless Ct. otherwise directs R.P. 3, p. 66 ,, .may be included in jud^ent wheni signed on specially endorsed writ in default of appearance, K. P. 7, p. 67. may be included in judgment on specially endorsed writ, where deft. appears, but fails to satisfy Ct. that he has good defence, R.P. 7, p. 67. , married women may sue or defend without husband or next friend by leave of ' - Ct. or judge on giving such security for costs as Ct. or judge may require, R.P. lS,p. 70. . Ct. in adjusting costs, to inquire at instance of any party (I.) into any unnecessary prolixity in statements and order costs, occasioned by, such ^ prohxity, to- be borne by party chargeable, R.P. 18, p. 71 ', (II.) intc^pro- " priety of exhibiting interrogatories, and if taxing master, Ct. forjudge are of opinion that such interrogatories have been eSiibited (a) unreasonably, (b) vexatiously, (c) or if improper length the costs occasioned by the > , .said interrogatories and answers to be borne by party in fault, R.P. ^, p. 73. of every affidavit which shall unnecessarily set forth (a) matters of hearsay, . (b) argumentative matter, (o) copies of documents, (d) extracts from documents to be paid by party filing same, R.P. 38, pp. 76-77. of proving documents Vvhere notice to admit has been disregarded, to be borne by party neglecting or refusing to admit, R.P. 39, p. 77. Ct. may, however, Tat heairing or trial, certify that refusal to admit was reasonable, R.P. 39, p. 77. . of proving documents not to be allowed unless such notice be given, except where omission to give notice is in the opinion of taking officer a ^vijng of expense, R.P. 39, p. 77. of deft, on discontinuance of action or withdrawal of part of complaint - to be paid by pi., R.P. 46, p. 79. ' of deft, in pl.'s discontinued action, or withdrawn complaint, to be taxed a* prescribed by R,C.,R.P. 46, p. 79. '^ • ^ Digitized by Microsoft® INDEX. ; 331 COaiS.— continued. , of deft, in action ordered to be discontinued, or of p^rt of complaint to be struck out to be provided for in order, R.P. 46, p. 79. of pL in defence or coimter claim ordered to be withdrawn, or struck out to be provided for, in order, R.P. 46, p. 79. of judgment of nonsuit set aside on ground of mistake, surprise, or accident to be provided for by Ct. R.P. 46, p. 79. C.A. to liave power to mnJce such order as to whole or any part of costs of appeal as may seem just, R.P. 52, p. 81. omission to give notice of intention to contend that decision of Ct. below should be varied or altered, to be ground for special order as to costs. E.P. 5.3, p. 82. such deposit or other security for costs, occasioned by appeal, to be made or given as may be prescribed by R.C., or directed under special clrcum. stances, by C.A., R.P. 57, p. 82. of application for an attachment of debts and of any proceedings arising from or incidental to same, to be in discretion of Ct. or judge, O. 40, r. 10» J p. 270. COUNCIL — See Her ^lajesty in Council ; order in Council. COUNCIL OF JUDGES OF THE SUPREME COUNCIL. shall assemble once at least in every year, on such day or days as shall be fixed by Ld. Ch., with concun'ence of, C. J., s. 76, p. 49. , due notice of meeting to be given to all the judges, s. 75, p. 49. objects of meeting of, to be to consider ,(!.) the operation of the Judicature Act, 1873; (II.) the operation of R.C. in force; (III.) the working of several offices and arrangements relative to duties of officers of Cts. ; (IV.) to inquire and examine into an^ defects existing in system of procedure, or(V.) administration of lilwm H.C., C.A., or in any other Ct. from which any appeal lies to H.C., or any judge thereof, or to C. A., s. 75, p. 49. to report annually to one of H.M.'s principal Secretaries of State, what, if any amendments or alterations they advise, should be made in Act. or otherwise in administration of justice,^ and what other provisions (if any^, which cannot be carried into effect without authority of Parliament, it would be expedient to make for the better administration of justice, s. 75, p. 49. extraordinary meetings of, may at any time be convened by Ld. Ch., a. 75, p. 49. , may report or recommend to H.M. (I.) reduction in number of Divs. of H.C. ; (11.) increase in number of Divs. of H.C. :i (III.) reduction in number of judges attached to any Div. ; (IV.)' increase of same ; (V.) abolition on vacancy of distinction of offices of C.J. of England,. M.R., C.J. of C.P., and C.B., which may be reduced, s. 32, pp. 27-28. COUNTER-CLAIM— See also Statement ; Statement of Defence. SoWerto give relief to deft., in respect of, s. 24, p. 17. efts, statement of defence to contain statement of any, R.P. 18, p. 71. Pis. statement of reply to be a reply to such, R.P. 18, p. 71. Btatement of defence may include any counter claim whether it sound in damages or hot, R.P. 20, p. 72. to have same effect as statement of claim in cross action, R.P. 20, p. 72. : judgment in case of, may be given as a balance in favour of deft, R.P. 21, p. 72. Where it cannot he conveniently disposed of in pending action, Ct. may disallow, R.P. 20, p. 72. jn inferior Cts., inferior Cts. to have as ample power up to their junsdictibn '- as H.C, s. 89, p. 59'. . in inferior Cts. : being beyond jurisdiction of such Ct., relief not- to exceed jurisdiction, but cause may be transferred to H.C, s. 90, p^ 60. may be withdrawn or struck out by leave of Ct. or judge. Upon such terms as to costs and otherwise, as may seem fit, R.P. 46, p; 79. 1 COUNTIES PALATINE— See Lancaster ; Oourt Df Common- Fleas at Lancaster ; (3ounty Palatine of ; Chancellor of Duchy and County Palatine ^ of Lancaster ; Durham, Court of Pleas at ; Durham, County Palatine of, Digitized by Microsoft® 332 INDEX. COUNTS. to Le named in pis. statement of complaint if pi. desire cause to be tried elsewhere than in Middlesex, K.P. 28, p. 74. COUNTY OOUETS. appeals from not assigned to C. Div., s. .34, p. 29. appeals from, which hitherto might have been brought to any Ct. or judge transferred to H.C., maybe heard and determined by D.C.'s of H.C., for purpose of hearing appeals from, D.C.'s of H.C., to consist of judges — (I.), assigned pursuant to R.C., or (II.) subject to R.C. assigned according to arrangements, made for the purpose, by judges of H.C., s. 45, pp. 36-37. determination of appeals from, by D.C. to be final unless special leave to appeal from same to C.A. be given by D.O., before whom appeal from inferior Ct. shall have been heard, s. 45, p. 37. to have as ample power up to their jurisdiction as H.C., s. 89, p. 59. jurisdiction of, in equity, and admiralty, may be given to inferior Ots., s. 88, p. 59. COUNTY COURTS ACT, 1867. sections 5, 7, 8, and 10, extended to all actions, commenced or pending in H.C., s. 67, p. 45. The sections at length, pp. 91-92. COURTS — See Admiralty, High Court of ; Appeal, Court of ; Appeal ; Court of, in Chancery ; Assize ; Bankruptcy, Court of Appeal in ; Bankrupted,' London Court of ; Chancery, High Court of ; Common Law Courts ; Common Pleas, Court of ; Divorce and Matrimonial Causes, Court of ; Durham, Court of Pleas at ; Exchequer Chamber, Court of'; Exchequer, Court of; Equity, Court of; Gaol Delivery ; Higli Court of Justice ; Inferior Courts ; Judges ; Lancaster, Court of Appeal in Chancery of County Pahitine of ; Lancaster, Court of Common Pleas at ; Lord Warden of the Stannaries, Court of ; Orders by Court or Judge ; Oyer and Terminer ; Probate, Court of ; Revenue, Court of ; Rules of Court ; Supreme Court of Judicature. COURT OF FIRST INSTANCE. C.A. to have all powers and duties of the, R.P. 52, p. 81. COURT OF PLEAS AT DURHAM— See Durham, Court of Pleas at. COURTS OF JUSTICE ACT, 1869 (32 and 33 Vict., c. 91). referred to, s. 63, p. 43. the Act at length, pp. 103-127. CREATION. in case of creation of any estate or title, pendente lite, action may be continued by, or against the person to, or upon whom such estate or title has come or devolved, R.P. 17, p. 70. action not to abate by marriage, death, or bankruptcy, if not defective by, R.P. 17, p. 70. CREDITORS. of insolvent estates of deceased persons to receive dividends as in bank- ruptcy, s. 25, p. 20. CRIMINAL--See also Crown Cases Reserved. proceeding by Crown, included in term " Cause," s. 100, p. 63. practice and procedure in criminal causes and matters in H.C. and C.A. (subject to R.C.), to be same as before, s. 71, p. 47, O. 56, p. 285. jurisdiction as to questions of law arising in criminal trials 'to be' exercised by judges of H.C, s. 47, p. 37. CROSS ACTION— See also Counter-claun. counter-claim to have the same effect as statement of claim in, R.P. 20, p. 72. necessary if judge considers counter-claim cannot be conveniently disposed of in pending action, R.P. 20, p. 72. CROSS APPEALS— See also Appeal ; Appeal, Court of ; Notice of Motion on Appeal ; Evidence in C.A. ; Judges of C.A. under any circumstances unnecessary for respondent to give notice of motion by way of cross appeal, R.P. 53, p. 81. Digitized by Microsoft® INDEX. 33J CROSS APPEALS. -continued. if respgndent intends upon hearing of appeal to contend that the decision of Ct. below should be varied, he shall (within time prescribed by E.C. or special order), give notice of such intention to all parties afflected, R.P. Oo, pp. ol-o^, consequences of omission to give notice (I.) not to diminish powers of C.A ; (11.) OTOund for adjournment of appeal ; (III.) special order as to costs, CROSS EXAMINATION. Ct. or judge nmy, on application of either party, order attendance of person giving evidence in interiocutmy api^cations by affidavit for, R.P. 37, p. 76, CROWN. amy criminal proceeding by, to be included in term " cause," s. 100, p. 63. CROWN CASES, RESERVED. interpretation of term, s. 100, p. 64. jurisdiction as to, to be exercised by judges of H.C., or any five, of whom one shall be one of the C.J.'s or C.B., s. 47, p. 37. determination of judges as to, to be final and without appeal, s. 47, p. 37. no appeal as to criminal causes from H.C., except for error 6f law apparent on record, s. 47, p. 37. practice and procedure in H.C. and C,A., to be same as before, subject to- amy E.C. s. 71, p. 47, O. 56, p, 285. CROWN CASES RESERVED ACT, 1848 (II and 12 Vict., c. 78). the statute at length, pp. 84^6^ CUSTODY. jurisdiction as to custody of idiots and lunatics not transferred to H.C, s. 16, p. 10. of infants, Rules of Equity to prevail relating to, s. 25, p. 23. ClrSTOM. , legal estates, <&c., existing by, to be recognized (subject to provisions as to Equitable Estates, &c.) s. 24, p. 19. jurisdiction vested by, in judge of any Ct. transferred to H.C, to be included! in jurisdiction transferred to H.C, s. 16, p: 10. diities imposed by, on existing judges (subject to change), still to be per- formed, s. 11,. p. 6. jud^s appointed before passing of Act, not liable by, to serve on commis- sions of Assize, &c., not now to be liable, s. 11, p. 6. duties imposed by (not incident 'to administration of justice), to be per- formed by every judge of H.C, s. 12, p. 7. procedure of Cts. under any, may be contiimed when not inconsistent with Act, R.P. or E.C, s. 73, p. 48. BAMAGES. by collisions a* sea, where both ships in fault. Rules of Ct. of Admiralty to prevail over Rules of Cts. of Common Law, s. 25, p. 22. by trespass, mortgagor in possession without notice from mortgagee, to take possession may sue in his own name to recover, s. 25, p. 20. witnesses at assessments of, to be examined viva voce (subject to R.C), R.P. 36, p. 76, see also Evidence. DAYS.— See Time. DEATH. in case of death of person insolvent, assets to be administered as in bankruptcy, .s. 25, p. 19. of parties, not to abate action if cause survive, R.P. 17, p. 70. in case of death of any party to an action, Ct. may order personal repre- sentative, trustee, or other successor, in interest, to be made a party, or be served with notice, R.P. 17, p. 70. DEBT. attachment of, O. 40, p. 268.— See Attachment of Debts. writ to recover, may have special endorsement, K.P. 7, p. 65, see writ of summons, assignment of, rule of law as to, s. 25, p. 21, see Glioses in Action. Digitized by Microsoft® 334 INDEX. DEBTS AND LIABILITIES. ' of peraons dying insolvent to be pai I as in Bankruptcy, a, 25, p. 19. DECEASED PERSONS. suits for administration of estates of, assigned to C. DiV,, s. 34, p. 29. DECLARATION. of rules of law upon certain points, s. 25, p. 19, see Rules of Law. DECREE. in pending suit may be made as If Act had not passed if cause be fully heard, s. 22, p. 14. . perfected, may be executed, enforced, amended, or discharged by H.C. and C.A., 3. 22 p. 14. persons entitled to enforce, by attachment, niay apply by motion in a summary way to restrain proceedings, ^ 24, p. 18. DEED. of surrender unnecessary on resignation of judge^ s. 7, p. 5. relief against to be riiven either to pi. or deft, claiming on equitable grounds as fully as Gt. Ch. ought to have done, s. 24, p. It), causes referring te rectification, or setting aside, or cancellation of, assigned toC. Div., 3. 34, p. 29. DEFAULT. of appearance to writ specially endorsed, pL may sign final judgment, R.P. 7, p. 67, see Appearance ;■ Judgment. ' DEFENCE— See also Defendant. of set-off or counter-claim having been established, Gt, may give judgment for balance in favour of deft., K.P. 21, p. 72. on specially endorsed writ, if deft, appears and pi. files affidavit against defence, deft, must satisfy judge he has good, R.P. 7, p. 67. matter of Equity on which ii^unction might have been obtained, to Ije relied on by way of, s. 24, p. 18. deft, to deliver printed Statement of, R.P. 18, p, 71. ' statement of, may be altered or amended, R.P. IS, p. 71, where statement of, insufficieut, judge may direct issues to be. prepared, K.P. 19,p. 7L r F ininferiorCts., to be as ample up to its jurisdiction, asinH.G,, s, 89, p, 59. defence in inferior Cts., not to exceed the jurisdiction of such Gt., hut pro- , ceeding may be tran^erred to H.C., s. 90, p. 60. leave to defend may be granted on certain terms, ll.P. 7, p. 67. where parties to action are numerous, one or more, may be authorised to, R.P. 10, p. 68, see Representation ; Parties. DEFENDANT.— See also Defence ; Parties ; Writ of Summons : Statement ; Statement of Complaint ; Statement of Defence ; Statement of Reply ; Judgment ; Married Women ; Infants ; Pleadings ; Rules of Pleadings, any proceeding between pi. and deft, included in term " Cause," s. 100, p. 63. interpretation of- term, s. 100, v. 63. claiming relief on any equitable ground to be entitled to such relief as the Ct. of Ch. ought to have given, s. 24, p. 16, to be entitled ^to all relief against pi, which deft, might hitherto have obtained by cross-action, s. 24, p, 17. when service of" writ, accepted by solicitor of deft, apd appearance is entered, service not required, R.P. 4, p. 66. in case of non-appearance of deft, to specially endorsed writ, pi. may sigh final judgment for debt, interest, and costs, K.P. 7, p. 67. deft, must satisfy Ct. or Judge he has good defence tp specially endorsed Avrit if pi. make an affidavit of belief that there is no defence to action, R.P. 7, p. 67. to prevent order for account on writ specially endorsed, deft, must (I.) enter appearance ; (11.) by affidavit or otherwise, satis^ Ct. or Judge that there is some preliminary questions to be tried, R.P. 8, p. 67. ...... names of defts. improperly joined may be struck out on such terms as may seem just, R.P. 9, p. 68. - names of defts, may be added, but when added, summons or notice tb be served on them as prescribed by R.C„ or by special order, R.P. 9, p. 68. Digitized by Microsoft® INDEX. 335 DEFENDANT.— continued. prooeedings as against added defts., to be deemed to have begun onlv from service of notice, R.P. 9, p. 68. one deft, may be authorized to defend (or others having same interest, R.P. ■ 10, p. 68. when deft, claims contiibntion, indemnity or other relief against third parties, Ct. or Judge may, on notice being given to such ttdrd parties, make such order as may be proper to detjermme questions, E.P. 12, p. 69, two or more persons may be joined as defts. where pi. is in doubt as to parties, B.P. 13, p. 69. trustees, executors, and administrators may be defts. without persons beneficially interested being pai^ties, R.P. 14, p. 69. Infants may be defts. by their guaxdians appointed for that purpose, R.P. 15, p. 70. man-ied women may, by leave of Ct. or Judge, be defts. without their husband Oi' next friend on giving security for costs, R.P. 15, p. 70. all or any parties jointly or severally liable on one contract (including bills of exchange and promissory notes), may be joined as defts., R.P. 16, p. 70. ■ '■ pi. to flle and deliver to deft, printed statement of complaint (unless deft. states he does not require it), R.P., IS, p. 71, see Statement : Statement of Complaint, deft, to file and deliver to pi. printed statement of defence, E.P. 18, p. 71, see Statement ; Statement of Defence, pi to file and deliver to deft, printed statement of reply, R.P. 18, p. 71, see Statement ; Statement of peply. deft, may set off counter-claim, and such counter-claim to have same effect as statement of claim in cross-action, R.P. 20, p. 72, see Counter-claim ; Statement of Defence, power tb give judgment for deft, for balance under cpunter-elajm, R.P. 21, p. 72, see Counter-claim ; Statement of Defence, need not be Interested as to all relief prayed for, or as to every cause of action included in an action, R.P. 23, p. 72. ~Ct. or"'j'udge may make order to prevent deft, from being embarrassed or put to expense by being required to attend proceedings in action, in which he may have no interest, R.P. 23, p. 72. deft. 'may administer interrogatories to pi. and obtain discovery, R.P. 25, p. 73, see Interrogatories : Costs, deft, may have issues of fact tried by judge and jury on giving proper notice, E.P. 31, p. 75, see Trial, deft, may apply to Ct. or Judge to have trial in some other way than that proposed by pi., and Ct. or Judge shall then decide mode, R.P. 31, p. 75, see Trial, defts. costs of action or part discontinued to be paid by pi., R.P. 45, p. 79. Ct. or Judge may authorize deft, to withdraw whole or part of defence or counter-claim, R.P. 45, p. 79. 'DEFICIENCY. in number of judges of Q.B., C.P., and Ex. Divs. may be supplied under H.M.'s Royal Sign Manual, s. 31, p. 27. in number of the Vice Chancellors, or bf judges of Probate and Admiralty Div., may be supplied by appointment of new judge, s. 31, p. 27. DEGREE. of Sergeant-at-Iiaw not necessary to be taken by person appointed judge of either Ct., s. 8, p. 5. note thereon, pp. 157-158. DELAY. matters in any statement which may lead to, may be struck out, R.P. 18, p. 71, See Statement. DELIVERY— See Gaol DeUvery. DELIVERY— See also Statement ; Statement of Complaint ; Statement of Defence ; Statement pf Reply, of pis. printed statement of complaint, R.P. 18, p. 71. of defts. printed statement of defence, aet-oS or counter-claim, B.F. 18, Digitized by Microsoft® 336 INDEX. BELIVERY.— cohtmned. of pis. printed statement of reply, R.P. 18, p. 71. of statement of complaint may be waived by deft, on appearance, R.P. 18, p. 71. DELIVERY, WRIT OP. a \mt for delivery of any property other than land or money may be issued and enforced in the manner heretofore in use, in actions of detinue in the Superior Ots. of C.L., O. 44, p. 271. DEMAND — See Claim ; liquidated Demand. DEMURRER. to any statement to be filed in manner prescribed by R.C., R.P. 18, p. 71. DEPOSIT. as security for costs to be made as prescribed by R.C., or required by 0. A., B.P. 57, p. 82, see Costs. DETENTION. of property, for preservation of, evidence may, on application, be ordered, K.P. 45, p.78. DETERMINATION. of appeals from inferior Cts. by D.C. to be final, unless special leave be given, s. 45, p. 37. of appeals from H.C. to C.A. to be subject to R.C. and orders of Ct,, ». 19, p. 12. of every appeal to C.A. must be by whole Ct. or D.C, consisting of not less than three judges, s. 53, p. 39. ' of appeals, C.A, to nave all powers of H.C, s. 19, p. 12. of judges as to Crown cases reserved to be nnal, s. 47, p. 37. of aU matters between parties to be complete, and so as to avoid multiplicity of legal proceedings, s. 24, p. IS. DEVOLUTION. of estate or title, pendente lite action may be continued by or against the person to or upon whom such estate or title has come or devolved, R.P. 17, p. 70. action not to abate by marriage, death, or bankruptcy, if not defective by, R.P. 17, p. 70.— See Pleading (7), Marriage, Death, or Bankruptcy. DIFFERENT QUESTIONS. " arising in same action, may be tried in different ways, and one or more questions before the others, R.P. 32, p. 75. DlBBCTIONS^see also Orders by Court or Judge. usual in Ct. Ch. in cases of account to be made in case of writ specially endorsed for account, R.P. 8, p. 68. DISABILITY. by permanent infirmity to entitle judges of H.C, and ordinary judges of C.A. to pension, s. 14, p. 8. next friend of pi. under, not to be added without consent, R.P. 9, p. 68. DISCHARGING ORDERS. made in chambers, as to, s. 50, p. 38. DISCONTINUANCE. of action, power to pi., to discontinue action wholly or in part, on payment of defts. costs, R.P. 46, p. 79. costs of discontmued claim to be taxed as prescribed by R.C., R.P. 46, p. 79. not to be a defence to any subsequent action, R.P. 46, p. 79. Ct. or judge may order, on application of defendant, the withdrawal of defence, wholly or in partj on payment of costs, R.P. 46, p. 79. DISCOVERY — See Interrogatories ; Costs ; Documents. pi. and deft, may exhibit intenogatories and obtain, R.P. 25, p. 73. See Intei-rogatories. • on oath of documents by any party may be ordered by Ct., R.P. 27, p. 74. ' See Documents. DISMISSAL. power of, belonging to existing judges, to be retained it appointed judges of H.C. or ordinary judges of C.A.; s. ll, p. 6. Digitized by Microsoft® INtEX. 337 tolSPlITED. claims to ohoae in action, person liable may (I.) caJl on claimant to inter- plead, or (II> pay amount into H.C vmder Trustee Relief Act, s. 25, p. 21. appertaining to existing judge to continue, if appointed judge of H C or ordinai7 judge of C.A., s. 11, p. 6. DISSOLUTION. of partnership, matters referring to, assigned to C. Diy., s. 34, p. 29. DISTRIBUTION. o . a , t, v " of proceeds of property, subject to lien or charge, causes as to. assisned to C. Di¥., s. 34, p. 29. • e DISTRIBUTION OF BUSINESS transferred to H.C, among the several Divs. and judges ef H.C, to be provided by R.C. or ordei-s of transfer, s. 33, p. 28. «very document by which any cause or matter may be commenced, to be marked with name of Div. or with name of judge to which same is assigned, s. 33, p. 29. assignment of certain business t« particular Divs. of H.C, subject to R.C., s. 34, p. 29, see C. Div. ; Q.B. Div. ; CP. Div. ; Ex. Div. ; P.D. and A. Div. option for any pi. (subject to R.O.) to choose in what Div. he wlU sue (except P.D. and A. Div.) by marking document with name of Div., and giving notice to proper officer of Ct., s. 35, p. 31. interlocutory and other steps to be taken in Div. of H.C, to which cause assigned, s. 35, p. 31. Ct. or judge may either transfer or retain causes assigned contrary to R.C, or provision of Act, s. 35, pp. 31-32. causes may be transferred from and to Divs. and judges as directed by R.C, s. 36, p. 32. sail business arising out of cause assigned to C Div. or P.Di and A. Div. of H.C, to be disposed of in first instance by one judge only (subject Hio R.C% 3. 42, p. 35. pending matters in Ct. Ch., Ct. of Probate, and for Divorce, and H.C. of Admiralty (subject to transfer), to be assigned to same judge, in whose Ct cause may be depending, s. 42, p. 35. causes commenced in C. Div. of H.C. to be assigned to one judge by mark- ing same with najne of judge chosen (subject to transfer), by pL, s. 42, pp. 35-36. causes formerly in exclusive cognizance of H.C of Admiralty to be assigned (subject to R.C., power of transfer and provisions as to trials by com- missioners or in Middlesex), to present judge of Admiralty Ct., s. 42, p. 36. causes assigned to P.D. and A. Div. may be heard at request of President of Div., with concurrence of President, of H.C, by any other judge of H.C, s. 44, p. 36. of H.C. and C.A., and in D. Ots. or other Cts., or in Chambers, amongst several offices attached to supreme Ct., s. 77, p. 51. lid. Ch., with concurrence of C.J. of England, may order questions of law or fact to be transferred from and to any judge or trial, to be before any other judge of H.C, with power to deal with whole matter, R.P. 41, p. 77- DISTRICT REGISTRARS— See also District Registries. H.M. may, by order in Council, direct that there shall be, a. 60, p. 42. district of, to be defined in order in Council, s. 60, p. 42. H.M. may appoint as (I.) Registrar of County Cts. ; (II.) Registrar of local Cts. ; (HI.) Prothouotary of local Ct. ; (IV.) District Prothonotary of local Cts. ; (V.) District Reristrar of Probate Ct. ; (VI.) District Registrar of Admiralty Ct., s. 60, p. 42. Powers and duties. to have power to administer oaths and perform duties in respect of pro- ceedings in H.C and C.A. assigned to them by R.C. or any special order of Ct., s. 62, p. 43. may exercise all such authority and jurisdiction in respect of action as may be exercised by a judge at Chambers, O. 31, r. 5, p. 251. Digitized by Microsoft® 338 TNDEX. DISTKICT EEQISTEARS— continued. except such as & master of Q.B., C.P., or Ex. Divs. is precluded bj R.C. from exercising, O. 31, r, 5, p. 251. applications to registrar to be made in same manner in which applicatioibs at Chambers are by R.C. directed to be made, O. 31, r. 6, p. 2S1. — See Chambers. table of fees to be taken by, to, be fixed and altered by U. Ch. with sanction of 'Treasury, s. -63, p. -43. ' fees of , to be received and collected by stamps, s. 63, p. 43. ■'provisions of Courts of Justice Act, 1869, to apply to fees of, 8. 63, p. 43. writs of summons for commencement of actions in H.C. to 'be issued by, subject to K.C., s. 64, p. 44. 'further proceedings (unless H.C. or Jndge order the contrary), including proceedings for arrest or detention of a ship down to and including entry for trial or down to and including signing final judgment or order for account to be taken 'before, s. 64, p. 44v to transmit proceedings and documents to proper office of H.C. on receipt of order from B.C., a 65, p. 44. H.C. may order books br'documents to be produced or accounts to be taken or enquiries to be made by, s. 66, p. 45. to carry into effect order of H.C. in manner prescribed as to prodncticn o£, books and documents and taking of accounts and enquiries by, s. 66, p. 45. 'to report in writing as to «nch accounts and inquiries, s. 66, p. 45. report of as to accounts and inquiries, may be acted upon by H.C, s. 66, p. 45. registrar may refer to a judge any matter which appears to district registrar proper for decision of a judge, O. 31, t. 7, p. 251. judge may either dispose of the matter, or refer the same back to the registrar with such directions as he'may think fit, O. 31, r. 7, p. ^1. 'every district registrar and oth^r officer of ^D.R. shall be subject to the orders and directions of the Ct. or judge as fully as any other officer of the Ct., 0. 31, r. 10, p. 251. Aji^taifrtmi registrar. any person affected by any order or decision of a district registrar may appeal to a judge, O. 31, r. 8, p. 251. appeal shall be by summons within four days after the decision com- plained of, or such further time as may be allowed by a jndge or the registrar, O. 31, r. 8, p. 251. appeal from district registrar sliall be no stay of XH*oceedings, O. 31, i. 9, p. 251. unless so ordered by judge or registrar, O. 31, r. 9, p. 251. DISTRICT REGISTRIES— See also District Registrars. Ct. or judge may order books and documents to be produced, or accoimts to -, ^ be taken in office of, although cause commenced in London, s. 66, p. 45. in case of reference to, District Registrar to carry directions into effect as ,. prescribed, s. 66,;p, 45, ; , Recounts andtoquu^es directed to be made by, to be reported on in Writing byDistrictEegistr&,r,'a'nd report may be acted upon by H.C, s. S&, p. 45. , ©very proceeding in a D.K. shall be subject to the control of Ct. or judge as fimy as a like proceeding in London, O. 31, r. 10, p. 251. to be defined in order in Council directing that there shall be District Registrars, s. 60, p. 42. «uch orders may b? issued from time to time after passing of Act, 6th August, 1873, s.'eO, p. 43. ^ ^ the district of D.R. in county of Lancaster shall mean district thereto assigned by any order of H.M. in Council, O. 31, r. 1, p. 2S0. the district of any other D.R. shall mean a circle with a radius of three miles as a crow flies from the registry, 0. 31, r. 1, p. 260. What proceeding to he taken in, writs of summons for commencement of action in H.C. may be issued from, 8.60, p. 42. Digitized by Microsoft® INDEX. 339 DISTRICT REGISTRIES— continued. , , . . ( ,1' ;• proceedings (unlesa H. C. or judge order the contrary'), iilciuiilng procsedfeigs for arrest or detention of a sliip, down to and including entry for trial, or . .1 . down to and induding siming final order for an account, may be recorded in manner prescribed by R.C., s. 64, p. 44 all other proceedings prescribed by R.C. to be taken, and it necessary, recorded in, s. 64, p. 44. when an action • proceeds in the D.R. all proceedings (except where other- wise lu-ovided by R.C. or the Ct. or judge Otherwise orders), shall be taken • in D.R. down to and including the entry for trial of the action or issues therein, O. 31, r. 2, p. 250. if the pi. is entitled to enter final judgment or to obtain an order for an account by reason of the default of a deft, then down to, and including such judgment or order, 0. 31, r. 2, p. 250. but such judgment or order shall be entered in the D.R. In the proper book in the same manner as a like judgihent or order in an action proceeding in Xioudon Would be entered in London, O. 31, r. 2, p. 250. the judgment and all such orders in an action as require to be entered shall be entered in London when action proceeds in D,R., O. 31, r 3, p. 250. an office copy of every judgment and order so entered shaU be trans- mitted to the D.R., to be tiled with the proceedings in the action, , O. 31, r. 3, p. 251. " exceptions :— judgments and orders for account which may be simed in ■ D.R., and orders made by registrar imder E.C., O. 31, r. 3, p. ^. all writs of execution for enforcing any judgment or order in action which proceeds in D.R., shall issue from registry, O. 31, r. 4, p. 251. unless Ct. or judge shall otherwise direct, O. 31, r. 4, p. 251. as to authority of, applications to, reference by, appeal from, and control ' of district registrars, see District Registrars. lUTtioval qf proceedings to London as of right. any deft, may remove action from D.R. as of right : — (ij^where writ is specially endorsed under R.P. 7, and the pi. does within four days after appeiirance give notice of an application for an order against him imder order 13, O. 31, r. 12, p. 252. - - deft, may remove at any time after expiration of such four days, and 'before delivering a defence, and before the expiration of time for so doing, O. 31, r 12, p. 252. (II.) where writ is specially endorsed under R.P. 7, and pi. lias made appli- cation under Order 13, and deft, has obtained leave to appear under Qrder 13, 0..31,r. 12, p. 25a deft, may remove at anytime after order, giving him leave to defend, and before delivering a defence, and before the expiration of the time for so doing, O. 31, r. 12, p. 252. (III.) where writ is not specially endorsed, 0. 31, r. 12, p. 252. deft, may remove at any time after appearance, and before delivering a defence, and before the expiration of the time for so doing, O. 31, r. 12, p. 252. any ,def t. desirous to remove an action as of right may do so by servii^ upon tlie parties to the action and delivering to the district reg^trar a%otice, O. 31, r. 13, p. 252. notice to be signed by himself or his solicitor to the effect that he desires the action to be removed to London, 0. 31, r. 13, p. 252. the action shall be removed to London according to notice, O. 31, r. 13, p. 252. ^ :,. <3t. or judge may order that action proceed in D.R. notwithstanding notice (a) if Ct. or judge shall be satisfied that deft, giving such notice - is merely a formal deft., or (b) has no substantial cause to interfere in conduct of action, 0, 31, r. 13, p. 252. AwpliJiatitms to remove in other, cases. . ., any party m»y apply (in manner prescribed by R C.) to H.C., or to Jiidge.in Chambers, to iriove proceedings from, to proper oifice of H.C., a. 6^,p. 44 Ct. <)r judge may, on application for removal (o H.C., direct proceeding* to be c<)MinuLed in, 9. 65, p. 44. * Digitized by Microsoft® 340 INDEX. DISTRICT REGISTRIES— continued. application may be made to Ct. or judge or district registrar by any party for an order to remove action from D.R. to London, O. 31, r. 14, p. 253. Ct., 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, O. 31, r, 14, p. 253. Effect of remoml. whan Ct. or judge grants application for removal from D.R. proceedings and original'documents filed to be transmitted to proper office of H.C., s. 65, p. 44. » on removal from, action to proceed in H.C., as if "writ of summons had been issiied out of proper office in London, s. 65, p. 44. district registrar shall transmit to proper office of H.C. all original dociiments (if any) filed in the D.R. and a copy of all entries in books of D.R. of the ' proceedings in the action, O. 31, T. 15, p. 253. Seals of D.R. seals of, to be under direction of Ld. Ch., s. 61, p. 43. seals of, to be impressed on every "writ and other document issued out of or filed in, s. 61, p. 43. writs, documents, exemplifications and coines bearing seal of, to be evidence without further proof, in all parts of United Kingdom, s. 61, p. 43. DIVISIONS. supreme Ct. to consist of two permanent divisions, viz. (I.) H.C. and (II.) C.A., s. 4, p. 2. of H.C. to be five, s. 31, p. 25. of H.C. to be designated (I.) Ch., (II.) Ci.B., (IIL) C.P., (IV.) Ex., (V.) P.D. and A., s. 31, p. 27. judges of, s. 31. pp. 25-26, see also a Div. ; Q.B. Div. ; C.P. Div. ; Ex. Div. ; P.D. and A. Div. power to alter, by order in council, s. 32, p. 28. D. Cts. for business belonging to, s. 44, p. 36, see also D. Cts. writ of summons to specify the division to which action should be assigned, R.P. 2, p. 66. of H.C. to be for more convenient despatch of business, but not to prevent judge sitting in diflferent divisions from his own, s. 31, p. 25. pi. may choose (subiect to R.C.) in which division he will sue (except P.D. and A. Div.), s. 35, p. 31. DIVISIONAL COURTS— See High Ct. ; Appeal, Ct. of. of H.C, constitution and judges of, s. 40, p. 34. causes and matters not proper to be heard by single judge, to be he^d by, s. 40, p. 34. to exercise all or any part of jurisdiction of H.C. while hearing such causes, s. 40, p. 34. ~e -, any number of D. Cta. of H.C. may sit at same time, s. 40, p. 34. D. Cts. of H.C. to be constituted by two or three, and no more judges, s. 40, p. 34. except through ijressure of business or other cause, D. Cts. of H.C. to comprise thi-ee judges, s. 40, p. 34. every judge capable of sitting in D. Cts. of H.C, s. 40, p. 34. president of every D.C. of H.C. to be the senior judge present according to order of precedence under Act, s. 40, p. 34. business of (J.B., C.P., and Ex. Div., which according to existing practice would be transacted by Ct. sitting in banc, may be transacted by D. Cts., s. 41, p. 34. ' ... ' D. Cts. of H.C. to include, as far as practicable, one or more of judges attached to Div. to which cause assigned, s. 41, p. 34. duty of every judge not othermse engaged to take part in sittings in D. Cts., s. 41, p. 34. judges of H.C to maJce necessary arrangements for D. Cts., and in case of dulerences as agreed upon by majority, with concurrence of C.J. of England, s. 41, p. 35. may be held for any paa-t of the business of the C Div., which judge to whom business assigned, with concurrence of President, thinks proper, 3. 43, p. 36. Digitized by Microsoft® INDEX. 341 DIVISIONAL COURTS— continued. may be held for any pai-t of business belonging to P.D. and A. Div. which judges, with concurrence of President, deem proper, s. 44, p. 36. ' appeals from mf erior Cts. to be determined by D. Cts, of H.C. s 45, p 36 cases iuid points may, by direction of judge, be reserved for, or directed to be argued before, s. 46, p. 37. every motion for new trials to be beard by, s. 48, p. 38. no appeal to be previous to motion before, s. 48, p. 38. B.C. of C. A. may discbarge or vary order made by single judge, 3. 52, p 39 «f C.A., constitution, and sittings of, s. 53, p. 39. any number of D.C. of C.A. may sit at one time, s. 53, p. 39. no judge of C.A. shall sit on appeal from D.C. of H.C. of which he was 3, member, s. 51, p. 39. Ld. Ch. to make arrangements as to constituting and holding DC of C A s. 55, p. 39. ■ ' ■' may discharge or vary order made by judge as to place of trial, R.P. 28, arrangements for hearing appeals transferred from Judicial Committee of P.O., s. 55, pp. 39.40. DIVORCE AND MATRIMONIAL CAUSES, JUDGE OF THE COURT OP. — See Probate Court, Judge of DIVORCE AND MATRIMONIAL CAUSES, THE COURT FOR. to be united and consolidated ^rith oUier Cts., the whole to, constitute supreme Ct., s. 3, p. 2. jurisdiction of, trsmsferred to, s. 16, p. 9. to f prm part of fifth division, s. 31, p. 27. assignment, P.D. and A. Div. of pending business, and matters of exclusive jurisdiction, 3. 34, p. 31. business of, to be assigned to judge before whom commenced, s. 42, p. 35. nothing In R.C. to affect practice and procedure in proceedings of Divorce and Mati'imouial Causes, O. 56, p. 285. rules and orders of, to be rules of H.C, s. 70, p. 47. DOCUMENTS— See also Books. cost of affidavits, unnecessarily settinz forth copies of or extracts from,, to be paid by party filmg, E.P. 38, pp. 76-77. purporting to be sealed with seal of D.R., to be evidence in all parts of United Kingdom, s. 61, p. 4.3. filed in D.R. to be transmitted to H.C. upon receipt of order, s. 65, p. 44. by which any cause may be commenced in H.C, to be marked with name of Div., or with name of judge, to which or to whom the same is assigned, s. 33, pp. 28-29. Admission qf Documents. eitiier party in an action may call on the other side to admit a document, saving all just exceptions, R.P. 39, p. 77. notice to admit provided for, O. ^, r. 1, p. 249. the form. Schedule B., form I2, p. 303. in case of refusal to admit, after notice, cost of proving to be paid by party refusing unless Ct. certify refusal was reasonable, R.P. 39, p. 77. no costs of proving to be allo^ved unless notice to admit be given, unless taxing officer thmks omission to give notice is a saving of expense, R.P. 39, p. 77. an affidavit of solicitor in cause, 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 admission, O. 29, r. 2, p. 249. J)iscovery by Interrogatories. — See Interrogatories. IHscovery as to Documents. Ct. or judge may order the production by any party upon oath of such of the documents in his possession or power relating to any matter in question in such suit, or proceeding as Ct. or judge shall think fit, R.P. 27, p. 74. order may be made at any time during pendency of action, R.P. 27, p. 74. , Ct may deal -with such documents when produced in such maoner as shall appear just, K.P. 27, p. 74 Digitized by Microsoft® 342 INDEX- ■-■■■■ ■ . . Ji E»pCUMBNTS— continued. Applieation for disciyvery of order. . . any party may without filing any affidavit apply to a judge in Chambers for an order directing any other party to the action to make discovery in oath ; of the documents, which are or have been in his possession or power relating to any matter in question in the action, O. 28, r, 9, p. 246. tbe aflSdavit to be made by party agMnst whom order for discovery has been bbtainfedi O. 28, r. 10, p. 24f>. aflSdavit to specify, which if any, of the documents mentioned in order he objects to produce, O. 28, r. 10, p, 246. form of affidavit provided for, O. 28, r. 10, p. 246. : :■: the form Schedule B, form 9, p. 302. .JSfptice to produce. ^ every party to an action, or other proceeding, shall be entitled at any time before, or at the hearyig thereof, by notice in writing, to give notice to any other party in' whose pleadings or affidavits reference iemade to any docu- ment, 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, R.P. 26,, p. 73. form of notice proved for, O. 28, r. 11, p. 247. the form Schedule B., form 10, p. 247. the party to whom such notice is given shall deliver to the party givingjthe same a notice 'stating a time, vrithin three days from the delivery thereof, at which the documents, or such of them, as he does not object to produce, may be inspected at the office of his solicitor, and stating which {if any) of the documents he objects to produce, and on what ground, O. 2^ r. iS, p. 247. form of notice provided for, O. 28, r. 12, p. 247. the form Schedule B., form 11, p. 247. notice to be given vn.thin two days from receipt of notice of all the documents therein referred to have been set forth in an affidavit jnade on order to discover, or within four days, if any of the documentste- feiTsd to in such notice have not been set forth in such affidavit, O. 28. r. 12, p. 247. any party not complying with notice to produce shall not afterwards be at liberty to pufr any such document in evidence on his behalf in such action or proceeding, R.P. 26, p. 74. unless he shaU satisfy Ct. (a) that such document relates only to his OAvn title he being a deft, to the action, or (fr) that he had some other sufficient cause for not complying with such notice, E.P-^ 26, p. 74.' if party served with notice to produce omits to give notice of time ior inspection, or objects to give inspection, th« party may apply to a judge in Chambers for aii order for inspection, O. 28, r. 13, p. 247. Order to inspect. every .application for an order for inspection of documents shall be to. a judge at Chambers; O. 28, r. 14, p. 247. such applicatipn shall be founded upon an affidavit, showing (a) <>£ what documents inspection is sought, (fr) that the pMi;y applying is entitled to inspect them and (c) that they are in the possession or power of the other - party, O. 28, r. 14, p. 247. except in the case of documents (a) referred to in the pleadings or aflSdavits of the party against whom the appUcation 13 made or (,&) disclosed in his affidavit of documents, O. 28, r. 14, p. 247, Cbiectiim to discover or allow imtpection. . .. Ct., or judge inay order any question or issue to be determined first, and may reserve question as to discovery or inspection of party from whom discovery of any kind or inspection is sought objects to same or any part thereof, Ct. or, judge m£uy, if satisfied that (a) the right to discovery or inspection sougbt depends ou the determination of any issue or question in tiie action, Or (6) that for any Other reason it is desii'able that anyissue^or question in dispute in the action should be determined before deciding upon the right to the discovery or inspection, 0. 28, r. 15, pp. 247-248. Digitized by Microsoft® INDEX. 34S DOCUMENTS— continued. Jittactvment for disobedience to. orderSi service of orders on party's solicitor shall toe sufficient service to found tax jjp- plication for an attachment for disobedience, to the order, 0. 28, r.J 17, p. 248. party against whom, the application for an attachment is made may show in answer to the application that he has had no notice or~ knowledge of ihe order, Q. 28, r. 17, p. 248.. a solicitor upon an order against any party for discoyery or inspe'ction ~ is served who neglects without^reasonable excuse to give notice there* of to his client shall be liable to attachment, 0. 28, r. 18, p. 248. DOUBT. as to parties to be sued, pi. may (subject to RC. or special order) join two or more defts. to determine, which, if any, is liable, R.P. 13, p. 69. a£ to status of officers attached^to ousting Judge or Ct. to be determined by R.C., s. 81, p. 55. DUCHY OF LANCASTER— see Lancaster, Chancellor of Duchy. DURATION. . of pension to judges to be for lif& s, 14, p.. 8.. DURHAM, COURT OF PLEAS. AT. pending matters in assigned to C.P. Div., s. 34, p. 30.. jurisdiction of transferred to H.C., s. Ij6, p. 10. DURHAM, counts: PALATINE OF. to cease to be County Palatine as to issue of commissions of assize, s. 99,, p. 62. DUTIES— see also Equitable. Estates ; Legal Estates. of existing officers, to be similar to those now perform^, S..77, pp. 50.52. of officers of Supreme Ct., s. 84, pp. 56-57, see officers. of officers of Ld. Ch..to continue, s. 96,. p. 61. which existing judges capable of or liable to, to be performed by judges (subject to change, by Act), s. 11, P- 6.. councU of judges of Supreme Ct: aonua&y to consider duties of officers, s. 75, p. 49. not incident to administration of justice to whifeh former judges were liable to be performed by every judge of H.C. (except those to be performed, by Ld. Ch., C.J. of England, M.R., C.J. of C.P: or C.B.), s. 12, p. 7. incident to jurisdictions traiisferred to H.C. to be included in jurisdiction so transferred, s. 16, p. 10. EASTER SITTINGS.^ shall commence on the Tuesday after Easter week, and terminate on tha Friday before Whitsunday, O. 55, r. I, p. 282. EASTER VACATION. shall commence on Good Friday, and terminate on Easter Monday, O. 65, T. 1, p. 282. EASTER WEEK. „„ offices to be closed on Monday and Tuesday in, O. 55, T. 1, p. 282. ECCLESIASTICAL CAUSES.— See General Rules. constitution of Ct. when hearing, s. 21, p. 13. G.R. may be made by order in council as to, s. 21, p. 13- EDUCATION. ^ „, „- of infants. Rules of Equity to prevail in all questions as to, s. 25, p. S.. ELECTION. „ „ , no judge capable of election to House of Commons, s. 9, p. 5. ' ELECTION PETITIONS. , ^. .,.„„„ „- ,„ J rota of judges for, under Parliamentary Elections Act, ISbo, s. Jo, p. M. section of Parliamentary Elections Act, 1868, referring to rota of judges for, pp. 101-102. ELEGIT, WRIT OF. , ^ ^ „ „o , o»t to have same effect as like writ has heretofore had, O. 3S, r. 1, p. J67. to be executed in same manner in. which, wiit has heretofore been executed O. 88, r. 1 p. 267. Digitized by Microsoft® 344 INDEX, EMBARRASS. matter in any statement tending to, fair trial, may Be sfrac* aat,. K.P. IS, p. 71. CI may make order to prevent embarrassment of deft, in action in- which he has no interest, R.P. 21^, p. 72. ENDORSEMENT ON WRIT— See Writ of Smnmons ; Appearance. la^FORCEMENT. of judgment or order onappeal, C.A. to have all powers of H.C. in, b. 19, p. 12. ENGLAND, BANK OF.— See Distringas. ENGLAND, LORD CHIEF JUSTICE OF— see Lord Chief Jostiee of England. ENGLAND, CHURCH OP— see Church of England. ENTRY OF JUDGMENT. -See Judgment, Entry of, ENQUIRIES— see Inquiries.. EQUITABLE ESTATES, TITLES, & RIGHTS, DUTIES, & LIABILITIES, appearing incidentally to be recognised in same manner as Ct. Ch. wouldl have dfiDB, s, 24, p, 17. EQUITABLE WASTE. Estate for life without impeachment of waste, not to confer on tenant for life legal light to commit equitable waste withont express Intentloa appears, s. 25. p. 20. * EQUITIES. priority of, not to h& affected by rule as. to assignment of choses in action, s. 25, p. 21. EQUITY. and. law to be admonistered concurrently, s. 24, p. 16, see Rnles. if beneficial interest deemed not to be extinguished in, merger not to take: place by operation of law only, s. 25, p; 20. jurisdiction, powers of inferior Cts. having to be as ample as H.C., s. 89, p. 59. rules of, as to stipulations in contracts, not of the essence, to be followed, s. 25, p. 22.' . rules of, to prevail in all questions relating to custody and meintenance of infants, s. 25, p. 23. matter of,, on wl^h an injunction might have heeaa ohtamed to be relief only b^ way of defence, s. 24, p. 18. to prevail in cases of conflict or variance between Rules of- Equity an(£ Rules of Common Latw, s. 25, p. 23. EQUITY, COURT OF. jurisdiction of Ct. Ch. as a, transferred to H.C., ». 1^ p. ft- ERROR. proceedings in, abolition of, R.P. 49, p; 80i no error to lie from juctgmeut of H.C. or C.A., or Cfc Ch. of Cbnnty Filiating of Lancaster to House of Lords or to Judicial Committee, but pending, . matters not to be affected, s. 20, p. 12. pending proceedings In, to be contmued in. C.A., s. 22, p. 15. of law, appai'ent on record, the only cause for appeal in Crown cases: reserved, s. 47, p. 37^ ESSENCE. rules of Cts. of Equity as to stipulations in contract not hi^g.of the, to be: followed, s. 25; p. 23. ESTATE. not to be merged by operation of law only, if bene&cial interest in, would! not be deemed to be merged' or extinguished in equity, s. 25, p. 20. of idiots and lunatics, jurisdiction a» to, not transferred to H.C., s. 17,. p. 10. parties representing',, may sue and be sued without those beneficially interested being jomed, R.P. 14, p. 69. sn case of assignment, creation, or devolution of any estate predente hte, the action may be continued by, or against the person to, or upon whorm such estate or title has come or devolved, R.P. 17, p. 70. insolvent, of deceased persons to be administered as in bankruptcy, s, 25>, pp. 19-20. Digitized by Microsoft® INDEX, 345 ESTATE FOR LIFE. I without impeachment of waste, not to confer upon ten&nt any legal right to commit eq^uitable waste unless intention expressly appear, s. 25, p. 20. ESTATES— See also Equitable Estates; Legal Estates; Particular Estate; Real Estates ; Infants Estates, suits as to administration of, of deceased persons assighed to C. Diy. , s. 34, p. 29. EVIDENCE— See also Evidence in C.A. ; AiBdayit. ' mode of giving, by oral examination of witnesses in trial by jury not to be affected by Act, R.P. or any R.C., except as to power of Ct. for special reasons to allow depositions or -affidavits to be read, s, 72, p. 47. parties may agree as to mode of giving^ R.P, 36, p. 76, R.C. applicable to particular classes of cases contemplated, RP. '36, p. 76. of witnasses at trial, or assessment of damages to be vioa voce, and in open Ct., R.P. 36, p. 76. et. may order any particular facts to be proved by afBda.vit, and affidavit read. at hearing or trial, subject to any conditions, R.P. 36, p. 76. Ct. may order exarainatidn by interrogatories, or before a commissioner or examiner of -svitness absent for good reasons, R.P. 36^ p. 76, zio order authorising, by affida.vit, if witness bond fide required for cross- examination, R.P. 36, p. 76. Ct. or judge may make order for examination upon oatlj before officer of Ct. or any other person, and at any place, and may order deposition so taken to be filed in Ct., RP. 45, pp. 78-79. power of Ct. to try preliminary questions of law before going into, R.P. 24, pp. 72-73. documents cannot be put in, it notice to produce has been disregarded, R.P. 26, p. 74. may be given by affidavit upon interlocutory application, R.P. 37, p. 76. on application of either party Ct. or judge' may order attendance for cross- examination of person making affidavit on interlocutory application^ R.P. 37, p. 76. lEEBproperly admitted or rejected, not to be ground of new trial, unless; subsfcanfeal wrong occasioned, R.P. 48, p. 80. EVIDENCE .IN CO CRT OF APPEAL— See also Evidence ; Affidavit. C.A. may receive further, on questions of fact, R.P. 52, p. 81. further evidence in C.A. to be either by (I.) oral examination in Ct., (II.> affidavit, (III.) deposition before examiner, (IV.) deposition before cont- missioner, RP. 52, pi 81. i . . further evidence upon interlocutory applications in C.A. may be given with- out special leme, R.P. 52, p. 81. further evidence in C.A. may be given as to matters occurring in interval since decision appealed a^iinst, R,P. 52, p. 81. special grounds and special leave of C.A. necessary for further evidence, except as above, R.P. 52, p. 81. evidence taken in Ct. below to be brought up to C.A. (when question of face involvedi, as prescribed by R.O., or Special order, R.P. 54, p. 82. evidence of Ct. below may be referred to m C.A., where question as to ■ ruling or direction arises, R.P. 55, p. 82. evidence taken in Ot. below bearing on question shall be brought bef orer C.A., where any question of law is involved in an appeal, O. 52 r. 6, p. 280, subject to any special order under R.P. 54, O. 52, r. 6, p. 280. any evidence taken by affidavit to be brought before C.A. by production of printed copies of such of affidaivits as have been printed, and office copies of such of them as have not been printed, O. 52, r. 6, p-. 280. any evidence- given orally to be brought before C.A. by production of copy of judges notes, or suxsh other materials as Ct. may deem ex- pedient, 0. S, r. 6, p. Z81, There evidence has not been printed in Ct. below, the Ct. below, or a judge . thereof, or the C.A., or a judge thereof, may ordfer the whole, or any part thereof, to be printed for the purpose of the appeal, O. 52, r. 7, p. 281. any person printing evidence for the purpose of an appeal without such order shall bear the costs thereof unless the C.A., or a judge thereof, Bhall otherwise order, 0. 52, r. 7, P'. 281. Digitized by Microsoft® 346 INOEX. EXAMINATIONS— see Examiner ; Evidence ; Evidence in C.A, Ct. u; judge may make order for examination of mtnessea, upon oath before omcer of .Ct., or any (fther person, and at any place, and may order depositions so taken to be filed in Ct., R.P. 45, pp. 78-79. mode of giving eviden(ie by oral, of witnesses in trials by juries, not to be affected by Act, E.P. or E.C., s. 72, p. 47. EXAMINER. examination of vritnesses may be taken l^ interrogatories or otherwise before, E.P. 36, p. 76. EXCEPTIONS. BUls of, abolition of, R.P. 49, p. 80. to answer to interrogatories to bei taken only on insufficiency, R. P. 25, p. 73, see Interrogatories ; Costs. EXCEFIIONS FROM R.C. nothing in R.C. shall affect practice or procedure in {a) criminal proceedinga, (b) proceedings on the Ct. side of the Q.B. Div., (c) proceedings on the Revenue side of the Ex. Div., {d) proceedings for Divorce, or other matrimonial causes, O^ 56, p. 2S6. EXCHAJSGE— See Bills of Bxchahge. EXCHEQUER— See Lord Chief Baron of the Exchequer; Chancellor of Exchequer ; Barons of Court of Exchequer. EXCHEQUER, COURT OF. to be united and consolidated with other Cts., the wrhole to constitute Supreme Ct , 8. 3, p. 2. jurisdiction of, transferred to H.C., s. 16, p. 9. exclusive jurisdiction of, as Ct. of Revenue and as Common Law Ct , assigned to Ex. Div., s. 34, p. 30. pending business in, assigned to Ex. Div., s. 34, p. 30. Lord Treasurer not to exercise any functions as judge of, s. 97, p^ 62. Ch. Ex. not to exercise any functions as judge of, s. 96, p. 61. EXCHEQUER CHAMBER, COURT OF. jurisdiction transferred to C.A., s. 18, p. 11. EXCHEQUER DIVISION. , establishment of D.C. for business of, s. 41, p. 34, see D. Cts. order of appointment of sheriff's heretofore used in Ex., to be used in, 3. 96, p. 62. deficiency in number of judges in, provided for, s. 31, p. 27. president and judges of, s. 31, p. 26. matters relating to (I.) pending business in Ex., (II.) exclusive jurisdSetion of Ex., whether as Ct. of Revenue or Common Law Ct., (III.) pending business in London Ct. of Banlcruptcy, (IV.) exclusive jurisdiction of London Ct. of Bankruptcy, assigned to, s. 34, pp. 30-31. nothing in R.C. to affect practice and procedure in proceedings on Revenue side of Ex. Div., O. 56, p. 285. EXECUTION. of trusts, charitable or private causes, referring to, assigned to C. Div., s. 34, p. 29. of judgments and orders on appeal, C.A. to have all powers of H.C. in, s. 19, p. 12. except so far as ordered^ appeal shall not operate as a stay of, K.P. 58> p. 82 meaning of words, "writ of execution " in K.C., O 37, r. 6, p. 263. mean ng of words, "issuing execution against any party ' in B.C., 0. 37, r. 6, p. 263 nothing in B.C. shall take away or curtail atiy riglit heretofore existing to enforce or give effect to any judgment nr oriier in any manner or agaieat any person or property whaUoeTer, O. 37, r. 23, p. 267. nothing in £.0. shall effect the order in whioh writs of ezeoation may be issued, O. 37. r. 24, p. 267. Uanner of enforeing judgment in different easet. a judgment for the recovery by or payment to any person of money may ba enforced by any of the modes by whioh a judgment or decree for the pay- meat of money of any Ct. whose jurisdiction is transferred by the Judicature Aot might have been eaforoed at the time of the passim of tta* •aid Aot, 0. 37, r. 1, p. 262. Digitized by Microsoft® INDEX. 347 EXECUTION— oontinuod. a judgment for payment of mone^ Into Ct. may be enforced by writ of eeqneatiation, or in caaea in which attachment is authorized by law by attachment, O. 37, r. 2, p. 262. a judemeot for recovery or for delivery of posseESion of land may be enforced by writ of pcssession, O. 37, r. 3, p. 263. a j adgment for recovery of any property (other than land or money), may be enrorued by (o) writ for rtnlivery of property, (6) writ of attachment, (c) wrir, of sequeytraticiD, O. 37, r. 4, p. 263. B j u(tgmeDt reqairing an? petsoD (a) to do any other Act than payment of ^ mouey, or (b) ce abstain from doing anything, may be enforced by writ ef attachment or by committal, O. 37, r. 5^ p. 263. application^ may be made to Gt. or judge for leave to isBue execnticn where a judgment is to the effect that any party is entitled to any relief, subject to or upon the fulfilment of anv condition or contiogeocy, the party so entitled may upon the fulfilment of the condition or contingeocy, and demand made upon the party against whom he is entitled to relief, O. 37, r. 7. p. 263. Ct. (p judge may order fa) that execution issue accordingly, or (&) may direct, that any issue or question necessary for the determioation or the rights of the parties be tried in any of the ways in which questions arising in an action may be tried, if Gt. or judi-e be satiefied that the right to relief has arisen according to the terms of the judgmeat, O. 37, r. 7, p. 263. execution may issue when jndrment is against partiiers (a) against any propetty of partners as such, (b) against any person who haa admitted on the pleadings that he is or has been adjudged to be a partner, (c) against any person who has been served as a partner with the writ ofsuumous, and has failed to appear, O. 37. r. 8, p. 263. application may be made to Gt. or judge if party wbo has obtained judgment claims to be entitled to is^ne execution Birainst any other person as being a member of the firm, O. 37, r. 8, p. 264. Ct. or jud?e may give such leave If the liability be not Qispnted, O. 37, r. 8, p. 264. Ct. or j adge may order that liability (if disputed) of sncb person be tried and determined in any manner in which any issue or question in an action may be tried and determined, O. i:'7, r. 8, p. 264. Issue of writ of execution. no writ sball bo issued without the production to pmper officer of the judg- ment upon nhich the writ is to itsue, or an office copy thereof, show.* ing the date of entry, O. 37, r. 9, p. 264. the ffficer Ghall be satisfied that the proper time has elapsed to entitle creditor to execution, O. 37, r. 9, p. 261. writ shall be issntd without the party issuing it, or bis solicitor filings prseeipe for that purpose, O. 37, r. 10, p. 264. pisecipe to contain (a) title of the »ciion,(6)reference to the record, (c) date of the judgment, (rf.) date of the older, if any, directing the execution to be issued, (e) the names of the parties against whom, or (ee) of the firms against whose goods the execntioB is to be issued, O. 37, r. 10, p. 264. jiteisipe to be sieneii by the solicitor of the party issuinir it, or by the party issuinsr it, if be do so in person, O. 37, r. 10, p. 264. Sate and endorgements of writ. ^. ^ .^ . . ^ „ ™ ,„ oveiy wilt shall bear date of the day en which it is issued, O, 37, r. 12, every w'riS shall be endorsed with name and place of abode, or office of business of the solicitor actually suing out the same, O. 37, r. 11, p. 264. when solicitor actually suing out the writ shall sue as agent, writ to ba ;1so endorsed with name and place of abode of such other solicitor, O. 37, r. 11, p. 264. in case no solicitor shall be employed to issue the writ, then it shall be endorsed with a memorandum expressing that the same has been sued out by the pi. or deft, in person, as the oaae may be, mentlODiog tba Digitized by Microsoft® 348 INDEX, EXECUTION— coDtiBOsa. city, town, or parish, and also the name of the bamlet, street, or nnmi- bar of the house of ench pi's, or deft's. residence-, if any such there be, 0.37, r. 11, pp. 264-2C5. every writ of execution for the rsoovery of money shall be endorsed with a direction to the sheriff or other officer or person to whom the writ is directed (a) to levy the money really due and payable, and sought to be recovered under the judgment stating the amonnt, and (9j also to levy interest thereon, if sought to be reoovered at the rate of 4 per cent. per annum from the time when the jcdgmeat wa» entered up, O. 37> r. 1^ p. 265. where there is an agreement between the parties that more than £4 per cent, interest shall be secured by the judgment then the endorsement may be accordingly to levy the amount of iutezest so agreed, 0. 37, r. 14, p. 265. IdCiyy of poundage. in every case of execution the party entitleife to execution may levy th& poundage, fees, and expenses of eaecutiou over ana above the sum reoovered, O. 37, r. 13, p. 265i Time of issue of writs, 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 6. fa., or one or more writ or writs of elegit to enforce payment thereof, O. 37, r. 15; p, 265-. if judgment is for paymeat within a period therein mentioned, no such writ shall be issued until after the expiration of such period, O. 37, r. 15, p. 265. Ct. or j>udge may {a) either at time 0$ giving judgment, or (f>) afterwards give leave to issue execution before, or may stay execution until any time after the expiration of the period prescribed, O^ 37, r. 15, p. 265» as between the originai parties to an action, execution may issue at any time within six years from the recovery of the judgment, O. 37, r. 18, p. 266; ivbere six years have elapsed since the judgment or any ebange has taken place by death or otherwise in the parties entitled, or liable to execution, the party alleging himself to be entitled may apply to Gt. or judge for leave to issue execution, O. 37, r. 19, p. 266^. Ct. or j'odge may (») order execution to issue if satisfied, that the party applying is entitled, or (EiO may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the wajs in which any question in an action may be tried, O. 37, r. 19, p. 266. Ct. or judge may in either case impose such terms as to costs or other' wise as shall seem just, O. 37, r. 19, p. 266. Writ, how long' in force and renewal of wnt. writ if unexecuted to remain in force for one year only i^om its issue, O. 37, r. 16, p. 266. writ may be renewed by the party issuing it, O. 37, r. 16, p. 266. renewal may be at any time before its expiration, O. 37, r. 16, p. 266. renewal must be by leave of Ct. or judge, O. 37, r. 16, p. 266. renewal to be for one year from date of renewal, and so on from time to time during the continuance of the renewed writ, O. 37, r. 16, p. 266. renewal to be (a) either by writ being marked with a seal of the Ut. bearing the date of the day, month, and year, of snob renewal, or (6) by party giving a written notice of renewal to the sheriff signed by the party or his attorney, and bearing the like seal of the Ct., 0.37,r.l6,p. 266. renewed writ to have same effect, and be entitled to priority according to the time of the original delivery thereof, O. 37, r. 16, p. 266i production of writ of execution or of notice renewing same purporting to be marked with seal of Ct. showing same to have been renewed to be sufficient evidence of writ having been renewed, O, 37, r. 17, p. 266. Bow orders enforced, cmd ly cmd against third parties. every or • 1- . :»' .. jni^es, retiring pensions of, a. 14^ p. 8. Digitized by Microsoft® INDEX. 351 CSAOL DELIVERY, COMMISSION OP. no jftflge appotnted before passing of Act, not liable to act on, to be liable to act on, s. 11, p. 6. . not to be affectea except as expressly directed, s. 93, p. 61. jurisdiction of Cts. created by, transferred to H.C., a. 16, p. la GARNISHEE.— See Attachment of Debts. GENERAL. power of C.A., R.P. 52, p. 81. GENERAL RULKS AS TO ECCLESIASTICAL CAUSES. may be made as to assessors in Ecclesiastical causes, s. 21, p. 13, as to a.sse.ssor in Ecclesiastical causes to be laid before Houses of Parliament, a. 21, p. 13. may be annulled by order in Council on address from Parliament, 3. 21, n. 13. GOOD FRIDAY. > v "■ not to be counted in computation of limited time, 0. 51, r. 2, p. 279. offices not to be opened on, O. 55, r. 4, p. 283. GRANTS. of Letters Patent, jurisdiction as to, not transferred to H.C., ». 17, p. 10. GREAT SEAL-See also Lord Keeper of Great Seal. jurisdiction as to issue of commissions and other \mtings under great seal not Ijransferred to H.C., s. 17, p. 10. in commission, provisions as to, 3. 98, p. 64. GUARANTY. action on, for payment of money, writ may be specially endorsed, R. P. 7, p. 66. GUARDIANS AD LITEM. of infants may defend action, R.P. 15, p. 70. BEARED CAUSES. in which judgment not pwf ected) provided for, s. 22, p. 14. HEARING— See ■also Trial. of appeals from H.C. to C.A. to be subject to R.C. and orders of Ct:, s. 19, p. 12. of appeals, C.A. to have all powers of H.C., s. 19, p. 12. HER MAJESTY— See also Appeal, Court of ; High Court of Justice ; Judicial Committee, jurisdiction exercised by Ld. Ch. as visitor on behalf of H.M., not transferred to H.C., s. 17, p. 11. jurisdiction vested in H.M. in Council, on appeal from H.C. of Admiralty, or from orders in lunacy, transferred to C.A., s. 18, p. 11. Pmaer of H.M. by Letters Patent. to fill up vacancies in office of judge of H.C., s. 5, p. 3. to appoint three ordinary judges of C. A., s. 6, p. 4. to appoint to vacancies in ordinary judgeships of C.A., s. 6, p. 5. to grant pensions to judges of H.C. or ordinary judges of G A., s. 6, p. 5. Power of H.M. 6y Royal Siyn Mamual. to appoint additional judges of C. A., o. 6, p. 4. Ptywer of H.M. by order in Cmmcil. to confer on Inferior Cts. the same jurisdiction in Equity and Admiralty aa County Cts. shall have, s. 88, p. 59. to transfer jurisdiction of Judicial Committee to C.A., s. 21, p. 12. to make general rules as to Ecclesiastical Causes in C.A., with advice of judges, s. 21, p. 13. to annul general rules as to Ecclesiastical assessors, on address from either House of Parliament, 3. 21, p. 14. :■ &om time to time, to order reduttion or increase in Divs. of H.C, or in number of judges, and such order may provide for abolition or reduction on vacancy of G.J. of England, M.R., G.J. or C.P., and C.B., and of their salaries, pensions, and patronage, s. 32, p. 27. ' to transfer to G.A., appeals and petitions to H.M. in Council, s. 21, pp. 12-13. nothing in Act to prejudice any right existing at commencement of Act to prosecute any pending writ of terror or appeal,- to bring error or appeal to H.M. in Counral, s. 20, p. 12. Digitized by Microsoft® 352 INDEX. HBK MAJESTY— continued. ' to make, revoke, or modify orders regulating vacations, on recoutmenaation of CouncU of Judges, s. 27, p. 24. HIGH COURT OF ADMIRALTY— See Admiralty, High Court of. HIGH COURT OF CHANCERY IN ENGLAND— See Cliancery, High Court of, HIGH COURT OF JUSTICE— See also Judges of H.C. ; Divisional Cts. one of the two divisions of supreme Ct., a. 4, p. 2. to have original jurisdiction askd appellate jurisdiction from inferior Cts., B 4, p. 12!" "■ constitution of, s. 5, p. 2. fii-st judges to be (I.) Ld. Ch., (II.) C.J. of England, (III.) M.R., (IV.) C.J. of C.P,, (V.) C.B., (VI ) the three Vice-ChaBcellor.s, (IX, ) Judge of Ct. of Probate, (X.) the several puisne justices and bai'ons of Cts. of Q.B., p,P., and Ex. respectively, (XXV.) judge of H.C. of Admiralty (except such as may be appointed ordinary judges of 0. A. ), s. 5, p. 2. new judges may be appointed by letters patent, s. 5, p. 3. judges of H.C. to liave equal power, authority, and jurisdiction, s. 5, p. 3. judges to be addressed in manner now customary in addressing judges of ■ supetior Cts., s. 5, p. 3. judges not to exceed 21 in number, s. 5, p. 3. C.J. of England to be president in absence of Ld. Ch., 9. 5, p. 3. H.C. to be deemed duly constituted duiing vacancy in ofSce of judge, s. 7, p. 5. baiTister of ten years standing eligible as judge of H.C, s. 8, p. 5. .iudges to hold office for life, subject to power of removal by H.M. on address from both Houses of Parliament, s. 9, p. 5. oaths of office to be taken by judges of H.C, s. 9, p. 6. duties not incident to administration of justice to be exercised by every judge, s. 12, p. 7. to be a superior Ct. of record, s. 16, p. 9. jurisdiction of various Cts. transferred to H.C, s. 16, p. 9, and to be exercised only by H.C, s. 22, p. 14. jurisdiction not transferred to, s. 17, p. 10. appeals from H.C. to be to C.A., s. 19, p. 12. jurisdiction of H.C. given to C.A., as to appeals, s. 19, p, 12. no appeal from H.C. to House of Lords or Judicial Committee, s. 20, p. li pending proceedings (except those in error, on appeal or before C.A. in^ , in Ch.), to be continued in, s. 22, p. 15. may execute, enforce, amend, or discharge perfected judgments, s. 22, p. 14. jurisdiction transferred by Act to, exercises (so far as regards practice and procedure) in manner provided by Act, R.C. and orders of CJt., s. 23, p. 15. in absence of special provision in Act, R.C. or orders of Ct., practice and procedure, to be as nearly in same manner, as same might have been exercised by respective Cts., from which jurisdiction transferred, s. 23, pp. 15-16. law and equity to be concurrently administered in H.C, a. 24, p. 16, see Rules, to consist of five Divs^ s. 31, p. 25, see Divisions ; C. Div. ; Q.B. Div. ; C.P. Div. ; Ex. Div. ; P.D. and A. Div. H.C may sit at any time or place (subject to R.C.), s. 26, p. 23. jurisdiction of judges of H.C. on circuit, s. 29, pp. 24-25, see Assize ; Circuit, a commissioner of assize to constitute a Ct. of H.C, s. 29, p. 25. one judge sitting in London or Middlesex for trial by jury to constitute Ct. of H.C, s. 30, p. 25. provision for maMng up any deficiency in number of judges at commence- ment of Act, s. 31, p. 27. power to transfer a judge from one Div. to another, s. 31, p. 27. judge appointed to fill vacancy become member of, save Div. to which his predecessor belonged, 8. 31, p. 27. payment of disputed chose in actions into H.C. under Trustee Relief Acts, s. 25, p. 23, see Chose in Action, power to alter Div., by order in Council, s. 32, p. 28, see Divisions. Digitized by Microsoft® INDEX. 353 HIGH COURT OF JUSTlCE-continued. BndSes™ "' ''''^«^^ '0 provided by, E.C. 33, p. 29, see Distribution of asslmment of certain business to particular Dim of H.C. (subject to R.CA A hiy^' ' ^^ ' ^®- ^''' ' '^■^- °^^- ' E''- ""• ; I'D. and yoTvers of a single judge (subject to R.C.\ a. 39, p. 33. ijivmonal Cts. of H.C, s. 40, p. 34, see Divisional Courts Divisional Cts. of H.C. for business of Q.B. Div. ; C.P. Div. and Ex. Div. s. 41, p. 34. ' business assigned to a single judge in C. Div. and P.D. and A. Div., s 42. p. 35. > — I D.C. for business of C. Div., s. 43, p. 36, see Divisional Courts. IXC. for business of P.D. and A. Div., s. 44, p. 36. President of H.C. to concur as to what causes are proper for D.C, s. 44, no order mads by H.C, by consent, or as to costs, to be subiect to appeal except by leave of Ct., s. 49, p. 38. power to refer to an official or special referee, s. 56, p. 41, see Referee ; Referee Official ; Referee Special, power to call in the aid of assessors, a. 56, p. 41, see Assessors. provisions of County Courts Act, 1867, ss. 5, 7, 8, and 10, a. 67, p. 45 to be applicable to actions iu H.C, s. 67, p. 45. Acta of Parliament relating to former Cts. to be applicable to H.C., s. 76, p. 49. duties of officeta attached to judges of H.C, a. 77, p. 52. H.C may direct how papers and documents, and other 'chattels in posaeasion of Cts., and their officers, shall be dealt with, a. 92, p. 60. powers of H.C. extended to inferior Cts., but within its jurisdiction, s. 8?, H.C. may order transfer from inferior Cts. of cause beyond jurisdiction of such Cts., s. 90, p. 60. practice and procedure in criminal cases in H.C. to remain as before, subject to B.C., s. 71, p. 47. costs of proceedings in, to be in discretion of Ct, R.P. 47, p. 80, see Cost. HILARY SITTINGS AND VACATIONS.— See Sittings and Vacations. HOUSE OF COMMONS. judges not capable of being elected to or of sitting in, a. 9, p. 5. HOUSE OF LORDS. no appeal to be brought from judgments obtained prior to commencement of , Ac^ a. 20, p. 12. additional judges of C.A. when in attendance in, not bound to sit in C.A., s. 6, p. 4. HOUSES OF PARLIAMENT— See Parliament. HUSBAND. married women may sue or defend vrlthout husband, on giving security for costs, E.P. 15, p. 70. Ct. may order husband to be made a party, or be aerved with notice in case of marriage of either of the partiea to an action, R.P. 17, p. 70. IDIOTS— See also Lunatica. jurisdiction as to persons and estates of, not transferred to H.C, s. 17, p. 10. IMPEACHMENT OP WASTE-Bee Waste. INCIDENT. duties not incident to administration of jostice to be exercised by every judge, s. 12, p. 7. powers, duties, and authorities incident to jurisdiction, transferred to H.C, to be included in jurisdiction so transferred, s. 16, p. 10. for purposes incident to appeal, CA. to have all powers of H.C, a. 19, p. 12. INDEMNITY. where claimed from third parties by deft., order may be made to detenuine question, R,P. 12, p. 69. W Digitized by Microsoft® 354 INDEX. INDIA. persons who have been C.J. of H.O. of Judicature at^ Fort William in Bengal or Madras or Bombay, eligible as additional judges of C.A., s. 6, p. 4. INB0B3BMENT ON WRIT— See Writ of Summons ; Appearance. INPANrS. in questions relating to custody and education of, Rules of Equity to prevaily s. 25, p. 2-1. , 1 ' ■ r causes as to wardship of, and care of infants' estates assigned to G. Div.» s. 34, p. 30. may sue by next friend and defend by guardian ad litem, B.P. IS, p. 70. INTERIOR COURTS. appellate jurisdiction of Inferior Cts. vested in, H.C., s. i, p. 2. appeals from, to be determined by D.C., s. 45, p. 36, see Div. Cts. leave of I>.C. to appeal to C. A. nmst be obtamed, s. 45, p. 37. jurisdiction in Equity and Admiralty may be given to, similar to County Court, s. 88, p. 59. having jurisdiction in Equity, or in Law and Equity, and Admiralty, to have all powers of H.C. within their jurisdiction, s. 89, p. 59. to give no relief to deft, beyond its jurisdiction, where defence or counter- fHaim involves matter beyond its jurisdiction, but cause may be toansferred to H.C, 3. 90, p. 60. rules of law enacted and declared by Act^to apjdy.to, a 91, p. 60, see Rules of Law. INFIRMITY. permanent infirmity to entitle judges of H.C, and ordinary judges of CA. to pension, s. 14, p. 8. INFORMATION. in Chancery abolished, R.P. 1, p. 65. INJUNCTIONS.— See Interlocutory Orders. may be granted by interlocutory order, s. 25, p. 22. — See Interlocutory Order, may be granted in all cases in which it shall appear to the Ct. just or convenient, s. 25, p. 22. may be granted either (1.) unconditionally, or (II.) on conditions and terms. s. 25, p. 22. asked for before, after, or at hearing of cause to prevent apprehended waste or trespass, may be granted whether person is or is not in posses- sion, or does or does not claim right, or whether estates are legal or equitable, s. 25, p. 22. no proceeding iu H.C or CA. to be restrained by, s. 24, p. 18. matter of Equity on which an injunction nnght have been obtained to be relied on by way of defence, s. 24, p. 18. INaUIRIES. may be referred to District Registrar, s. 66, p. 45, see also District Registrar, report of District Registrar as to, how to be used, s. 66, p. 45. may be directed to be made at any stage of proceedings, B.P. 42, p. 77. 1 INSOLVENT ESTATES. administration of assets of, to be as in bankruptcy, ». 25, p. 19. INSPECTION.— See Documents. of documents pleaded or refen'ed to, on notice, R.P. 26, p. 73, see also Document, of documents generally, R.P. 27, p. 74. under references, R.P. 34, p. 75, see Referee, of property, R.P. 45, p. 78. INSTRUMENT. relief to be given, pi. or deft, claiming equitable estate or right against, s. 24, p. 16. INSUFFICIENCY. for payment of debts by deceased persons, s. 25, p. 19, see also Insolvent Estates, of answers to inten-ogatories to be determined by Ct, R.P. 25, p. 73, sea also Interrogatories ; Costs. Digitized by Microsoft® INDEX. 355 INTEREST. '"wltrRPrr^^W* "*^ ^^ deluded in judgment on specially endbraed *ot" „"™„?f 'bTS'^™?o^ *°''°°' ^"' Ct. may preTent liia embarnesment vL ojtpensej jtv.Jr, Zo, p. 715. where beneficial interest does not merge in equity, no merger to take place. by operation of law only, s. 25. p. 20 INTERIM ORDERS. . F "• as to subject matter of litigation and as to payment of amount in. dispute: fj any objection to answering any interrogatory may be taken, and the ground thereof stated in the affidavit, O. 2S, r. 7, p. 246. ' ' ' BO exception shall be taken to any answer, K.P. 2S, p. 73. the siifiiciency or otherwise of any answer objected to as insufficient sliall be determined by the Ct. or judge in a summary way, R.P. 25, p. 73. if any person interrogated omits to answer or answers insufficieiitly, the ^arty interrogating may apply to the Ct. or a judge for an order requiring him to answer or to answer further as the case may be, O. 28, r. 8, p. 246. an order may be made requiring him to answer or to answer further either by affidavit, or by viva voce es!anlination as the judge may direct, O. 28, r. 8, p. 246. 3f toy party fails to comply vrith any order to answer interrogatories shall be liable to attachment, 0-. 28, r. 16, p. 248. pi. shall also be liable to have his action ^[smi^ed for want of prosecution, G. 28, r. 16, p. 248. deft, ahall also be liable to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, 6. 28, r. 16, p. 248'' the party interrogating may apply to Ct. or judge for an order to that effect, G. 28, r. 16, p. 248 "order may be made aocofdingly, O. 28, r. 16, p. 248 anyone or more answers to interrogatories may be used in evidence at the trial of an action or issue by the opposite party, without putting in the Others, G. 28, r. 19, p. 248 the judge may look at the whole of the answers, and if of opinion that any other of the answers are so connected *ith those put in, that those used ought not to be used without the other, he may direct them to be put in, O. 28, r. 19, p. 248 Cbsts of improper interrogatories. Ct. in adjusting costs of action shall) at the instance of any party, inquire or cause inquiry to be made into the propriety of exhibiting such in- terrogatories, R.P. 25, p. 73 if it is the opinion of the taxing master or of the Ct. or judge that; such interrogatories have been exhibited (a) unreasonably, (6) vexatiouBly, or (e) at toiproper length, the costs occasioned by the said interrogatories, and the answers thereto, shall be borne by the party in fault, R.P. 25, p. 73 IRBIAND. persons who have been Ld. Ch. or C.J. of Appeal in, eligible as additional judges of C.A., s. 6, p. 4. IRRELEVANCY. any party may object to interrogatories on ground of, R.P. 25, p. 73, see Interrogatories : Costs. ISSUE. jurisdiction as to issue of commissions and other writings under Great Seal not transferred to H.C., s. 17, p. 10. of Commissions of Assize, Nisi Prlus, Oyer and Terminer, Gaol Delivery, not to be affected, except as expressly directed, s. 93, p. €1. Digitized by Microsoft® INDEXi 3S> irsstrus of t\ct. where statement inaufflciently discloses issues of fact, judgft may orde* S, R.P 1^"^* ' """"^ ''^"^' *" ^^ '^'"^* ^^ '''""'^ " P^'*'^' questions of law may be tried before questions or, R.P 21, p 72 notS:^R'^r3lT%,1ei'^i^TNo^rci"'^" '^^ ^"^ °" '^"^ P"P» may be ordered to be tried by Commissioners of Assize, s 29 p 25 causes not involTlug, may by consent be tried by Commissioners of Assize, o. juto may direct pai-ties to prepai-e (and if they differ may settle same)! U statements of claun, defence, and reply do not sufficiently disclose issues of fact, R.P, 19, p. 71. JOINDER— See Mis-Joinder ; Non-Joinder : Parties, JOINDER OP CAUSES OF ACTION. pi. may (subject to R.C.) unite in same action, and in same statement of claim, several causes of action, R.P. 22, p. 72. Bkim by pis. jomtly may (subject to R.P. 22» be joined with claims by them or any of them separately against the same deft., 0. 16, r. 5-6 p 226 claims by or against husband and wife, may (subject to R P ^) b9 joined with claims by or against either of them separately, O. 16. r 3-6. pp. 225-226. r J. 1 . claims by or against an executor or administrator as such may (subject to E.P. 22) be joined with claims by or against him personally, provided the last mentioned clauns are alleged to arise with reference to the estate in respect of which the pi. or deft, sues, or is sued as executor or administrator, O. 16, r. 4-6, p. 226. every deft, in any action need not be interested as to all relief thereby prayed for, or as to every cause of action included therein, R.P. 23, p. 72. Exceptions. no cause of action shall be joined with an actios for the recovery of land. O. 16, r. 1, p. 225. unless by leave of the Ct. or a judge, O. 16, r. 1, p. 225. except {a) claims in respect of mesne profits (&) arrears of rent in respect of the premises claimed or any part thereof (c) damages for breach of any contract under which same or any part thereof are held, 0. 16, r. 1, p. 225. claims by a trustee in bankruptcy, as such shall not be joined with any claim by him in any other capacity, O. 16, r. 2, p. 226. unless by leave of the Ct. or a judge, O. 16, r. 2, p. 225. Application for order to confine and exclude. Ct. or judge may make such order as may appear just (a) to prevent any deft, from being embarrassed, or (&) put to expense by being required to attend any proceedings in suc^ action in which he may have no Interest, K.P. 23, p. 72. Ct. or judge may (ai order separate trials of several causes of action (united by pL in same action, and in same statement of claim) to be had or may (b) make such other order as may be necessary or expedient for the sepai-ate disposal thereof, if it appear to Ct, or judge that any such causes cannot be conveniently tried or disposed of together, R.P. 22, p. 72. any deft, alleging that the pi. has united in the same action severa causes of action which cannot be conveniently disposed of in one action may at any time apply to the Ct. or a judge for an order con- fining the action to such of the causes of action as may be con- veniently disposed ot in one proceeding, O. 16, r. 7, p. 226. if on hearing of application it shall appear to the Ct. or a judge that the causes of action axe such as cannot ail be conveniently disposed of in one action, the Ct. or judge may order (a) any of such causes of action to be excluded, and (b) may direct the statement or claim, or-^b) if lio statement of claim has been delivered the copy of the writ of aura- Digitized by Microsoft® 36o INDEX. JOINDER OP CAUSES OF ACTION.— continued. mons, and the endorsement of claim on the \mt of snmmons to te amended accordingly, and (c) may ma:ke such order as to costs as may be just, O. 16, r. 8, p. 226. JUDGES (GENERALLY)— See also Judges of High Court ; Judges of Court of Appeal ; Lord Chancellor ; Lord Chief Justice of England ; Master of the Rolls ; Lord Chief Justice of Common Pleas ; Lord Chief Baron ; Bankruptcy, Chief Judge in ; Admiralty, Judge of High Court of ; Probate, Jud^e of Court of ; Chancellor of Duchy and County Palatine of Lancaster ; Chief Justice of High Court of Judicature ; Puisne- Justices ; Council of Judges of the Supreme Court ; Orders by Court or . Judge ; Lord Warden of the Stannaries ; Judges of Transferred Courts ; Judge in Chambers ; Judges Marshall ; Assize ; Circuit ; and the varioua Courts enumerated under the head of Courts. not capable of being elected to or sitting in House of Commons, s. 9, p. 5. to hold o£ace for life subject to removal on address by both Houses of Par- liament, s. 9, p. 5. oaths on appointment, s. 9, pi 6^ every judge (except Ld. Ch.) to take oaths in presence of Ld. Ch., s. 9, p. 5. saving of rights and obligations of existing judges, s. 11, p. 6. service for pension, s. 11, p. 6. salaries of future judges, s. 13, pp. 7-8. letirmg pension of future judges, s. 14, p. 8. salaries and pensions how to belaid, s. 1^ pp. 8-9. provision f w absence or vacancy in office of judg^ s. 51, pp. 38-39. personal officers of future judges, s. 79, p. 54. patronage inoidemt toia judge not otherwise provided for, s. 86, p. 58. JIUDGES OP C.A. to consist of (I.) ex-officH), (11.) ordinary, (III.) additional, s. 6, pp. 3-5. all judges to have equal power, authority, and jurisdiction, s. o, p. 5. office t® be vacated by resignation in writing, adidressed to Ld. Ch., b. 7y p. 5i ffippomtment of judge of H.C to be judge of C.A., vacates former office, s, 7, p. 5. to hold office for life; subject to removal on address by both Houses of Parliament, s. 9, pi S. &.R. as to assessors in Ecclesiastical causes, to be made with advice of. s. 21, p. 13. number to be five, s. 6, p. 3. to be (L) Ld. Ch., (IL) C-T. of EngXamd, (Til.) M.B., (IV.) O.J. of C.P., (V.) C.B., a. 6, p. 4. to rank In Supreme Ct. in order of present official precedence^ s, 10, p. 6. Ordinary. number not to exceeitnine, s. 6. p. 4. first ordinary judges to be (I.) existing Lords Justices of A ppeal in Ch., (HI.) exlstii^ salaried judges of Judicial Committee^ (VBL) three other persons to be appointed by H,M. by letters patent, s. 6, p. 4. new judges to be appointed on vacancy by letters patent, s. 6, p: 5. Saving of rights and obligations of existim; judges, if appointed ordinary judges of C.A. s. 11, p. 6. ..—b™, salary to be £5000 a year, s. 13, p. 8. pension to be amount now payable to puisne justices of Q.B., a. 14, p. 8. pension, salary, and allowances to be payable out of Consolidated Fund on usual quarter days, s. 15, p. 9. quaUflcation to be (I.) any person who would have been qualified heretofore as Lord Justice of C.A. in Ch., (11.) having been, a judge of H.C. of one year's standing, s. 8, p. 6. to be styled Lords Justices of Appeal, s. 6, p. 4. on appointment not required to take or to have taken degree of serieant-at- law, B. 8, p. 5. = -.. to rank (if Peers or P.O.) in order of present precedence, if not in order o£ appomtment, s. 10, p. 6. Digitized by Microsoft® nSTDEX. 361 JUDGES OE C. A. —continued. ^ Addiliffnat. any number may be appointed by Royal Sign Jlamial, s. 6, p. 4. qualiflcations, having held the office (I.) in England, of judge of Superior Ct., or of H.M. Supreme Ct, ; (II)) in Scotland, of Lord Justice General or Lord Justice Clerk ; (III.) in Ireland, of Ld. Ch., or Lord Justice of Appeal ; (IV.) in India, of C. J., of H.C., of Judicature at Fort WiUiam, in Bengal or Madras, or Bombay, s. 6, p. 4. % to signify in "writing their willingness to serve^ s. 6, p. 4. not bound to sit when prevented by other duties, s. 6, p. 4. to be styled Lord Justices of Appeal, s. 6, p. 4. no salary to be payable, but any pension to which they may be entitled not to be prejudiced, s. 13, p. 8. to rank (if Peers or P.O.) in order of present precedence, if not in order of appointment, s. 10, p. 6. JXTDGBS OF H.C. first judges to be (I.) Ld. Ch., (IL) C.J. of England, (IIL) M.R., (IT.) C.J. of C.P., (V.) C.B., (VL) the three Vice-ChanceUors, (IX.) judge of Ct. of Probate, (&.) the several puisne justices and barons of Ct^. of Q.B., C.P., and Ex. respectively, (XXV.) judge of H.C. of Admiralty (except such as may be appointed ordinary judges of C.A.), s. 5, p. 2. new judges may be appointed by letters patent, s. 5, p. 3. to be styled in appointment. Judge of H.M.'s H.C. of Justice, s. 5, p. 3, to be appointed in same manner as puisne justices and junior barons of Superior Cts. have heretofore been appointed, s. 5, p. 3. permanent number not to exceed 21, s. 5, p. 3. to have equal power, authority, and jurisdiction, s. 5, p. 3. to be addressed in manner customary in addressing judges of Superior Cts. of C.L., s. 5, p. 3. office to be vacated by resignated in writing addressed to Ld. Ch., s. 7, p. 6. appointment of judge of H.C, to be judge of C. A., vacates former office, s. 7, p. 5. qualification to be barrister of ten years standing, s, 8, p. 5. after one year as judge of H.C, eligible for appointment as judge of C.A., s. 8, p. 5. on appointment not required to take, nor to have taken degree of Sergeant- at-Law, s. 8, p. 5. those not also judges of C A. to rank next after judges of C.A., and an order of appointment, s. 10, p. 6. existing judges, appointed judges of H.C, to retain existing rights, imdto be subject to existing obligations, s. 11, p. 6. to exercise duties not incident to administration of justice, s. 12, p. 7. salary of, to be j£S,000 a year, s. 13, p. 8. pension to be amount now payable to puisne justices of C.B., s. 14, p. 8. salaries, allowances, and pension to be payable out of Consolidated Fund on usual quarter days, s. 16, p. 9. to hold office for life subject to removal on address by both Houses of Par- liament, s. 9, p. 5. jurisdiction in criminal cases under Crown Cases Reserved Act, lo4b, to be exercised by, s. 47, p. 37. JtTDGES OF TRANSFERRED COURTS. ^ . 1. ^ duties, authorities, and powers not incident to administration of justice to be performed by, s. 12, p. 7. , , ... „. ' Acts of ParHament relating to former Cts. to be read as applymg to Cts. under the Act, s. 6, p. 49. JUDGE IN CHAMBERS. applicition to, may be made for names of copartners suing or being sued as a firm, R.P. 11, p. 69. JUDGES MARSHALL. office of, not interf erred with, s. 77, p. 52. „„, ^ , , ^ ^ . ,^ JUDGMENT.— See Attachment of Debts ; Pleading (13) ; Judgment by Default ; Execution: interpretation of term, s. 100, p. 64. Digitized by Microsoft® 362 INDEX. JUDGMENT.— continued. , . „ may be signed on non-appearance of deft., where wnt specially endorsedj subject to variation by Ct., R.P. 7, pi 67. final may be signed after appearance on affidavit, verifying cause of action, unless judge is satisfied that there is a good defence. E.P. 7, p. 67. on appeal, C. A. to have all powers of H.C., as to, s. 19, p. 12. counter-'ClaJms by deft, may be made in statement of defence, so that Ct. » may pronounce K.P. 20, p. 72, see counter-claims, may be given for deft, for balance under counter-claim, R.P. 21, p. 72. persons entitled by attachment to enforce, may apply by motion in a sum- mary way to restrain proceedings, s. 24, p, 18. may be given as to part of action with new trial, as to the other part, R.P. 48, p. 80. of nonsuit, unless Ct. or judge othenvise directs, to have same effect as judgment upon the merits for deft., R.P. 46, p. 79. of H.C. or C,A., no appeal from, to House of Lords or Judicial Committee, but appeal still to exist from judgments obtained previous to commence- ment of Act, s. 20, p. 12. in pending suits may be given as if Act had not passed, if cause be fully heard, s. 22, p. 14. perfected, may be executed, enforced, amended, or discharged by H.C. and C.A., s. 22, p. 14. How judgment obtained. judgment of Ct. shall be obtained by motion for judgment, O. 35, r. 1, p. 259> except when by H. Ct., R.P., or R.C., it is provided that judgment may be obtained in any other manner, O. 35, r. 1, p. 259. Motion for judgment BKtion shall be set down on motion for judgment where at the trial judge or a referee has ordered that any judgment be entered subject to leave to move, O. 35, r. 2, p. 259: party to whom leave has been reserved shall set down action, 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 witJiin 10 days after the trial, O. 35, r. 2, p. 259. notice of motion shall state (o) the ground of the motion, (6) the relief sought, and (0) that the motion is pursuant to leave reserved, O. 35, r. 2, p. 259. pi. may set down action on motion for judgment when at the trial of an action the judge or referee abstains from directing any judgment to be entered, O. 36, r. 3, p. 259. any deft, may set down the iwtion on motion for judgment, and give notice thereof to the other parties if pi. does not so set it down, and give not ce thereof to the other parties Avlthin 10 days of the trial, O. 35, r. 3, p. 259. Motion to set aside judgment. any party may without any leave reserved move to set aside judgment where at the trial of an action before a jury the judge has directed that any judgment be entered, O. 36, r. 4, p. 259. any party may move to set aside such judgment, and enter any other judgment on the ground that the judgment directed to be entered is wi'ong, by reason of the judge having caused the finding to be entered wrongly with reference to the finding of the jury, upon the question or questions submitted to them, 0. 36, r. 4, p. 259, When issues have been ordered to be tried. pi. may set down the action on motion for judgment where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, O. 35, r. 7, p. 260 pi. may set down action as soon as such issues or questions have been determined, O. 35, r. 7, p. 260 deft, may set it down and give notice to other parties if pi. does not so set it down and give notice thereof to the other parties within ten days alter his right so to do has arisen, 0. 3£ r. T, p. 260. , ~t . Digitized by Microsoft® INDEX, 363 •JUDGMENT— oohtlntted. ,. 'ow>Uc»tion may be made to Ct. or judge for leave to set down action on motion (or judgment where issues have been ordeled to be tried, or issues or questions of fact to be determined in any manner, and some only of sucai issues or questions of fact have been tried or detei-mined, O. 35. r 8. p. 260 * * * application may be made by any party who considers that the result of such tnal or determination renders the trial or detennination of the others o< them unnece sary, or renders it desirable that the trial or determination thereof should be postponed, O. 35, r. 8, p. 260 application maybe made without waiting for such trial or detei-mina- tion, O. 35, r. 8) p. 261 Ct. or judge may give such leave, If satisfied of the expediency thereof, upon such terms, if any, as shall appear just, and may give any directions which may appear desirable as to postponing the trial of the other questions of fact, O. 35, r. 8, p. 261. Motion fi>r judgment after one year. no action shall be set down on motion for judgment after the expiration of one year from the time when the party seeking to set down the same first became entitled so to do, O. 35, r. 9, p. 261 except by leave of Ct, or judge, O. 35, r. 9, p. 261 ■any party may without any leave reserved move to set aside judgment where at the trial judge or referee has directed that any judgment be entered. 0. 35, r. 5, p. 260. ■'■''= . any party may move to set aside judament, and to enter any other judgment on the ground that upon the findinga,s entered the judgment so directed is ^vrong, O. 35, r. 5, p. 260. en motions to set aside judgments and all motions under sec. 48, the order shall be an order to show cause, and shall be returnable in eight days. O. 35, r. 6, p. 260. s J . the motion shall be made within four days after the trial, if D.C. is their sitting, or within the first four days after the commencement of the sitting of the D.C. next after the trial 01: within such extended time as Ct. or judge may allow, O. .35, r. 6, p. 260. Ct. may give judgment accordingly, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute or any of them, or for awarding any relief sought, O. 35, r. 10, p. 261. Ct. may direct the motion to stand over for further consideration, and direot such issues or questions to be tried or determined, and such accounts and inquiries to be talcen and made as it may think fit, if it shall be of opinion that it has not sufiicient materials before it to enable it to give judgment, O. 34, r. 10, p. 261. Xnterlooutory orders R.C as to judgments not to apply to interlocutory orders under R P. 40, O. :«, r. 11, p. 261. any application for such orders may be made by motion so soon as the richt .^of the party applying to the relief claimed has appeared from the plead- ings, O. 35, r. 11, p 261^ Ct. or judge may give such relief, subject to such terms, if any, as such Ct. or judge may think fit, O. 35, r. 11, p. 261. Entry qf judgment. every judgment shall be entered by the proper officer in the book to be kept for the purpose, O. 36, r. 1, p. 261. ' party entering shall deliver to the officer a copy of whole of pleadings in the action, O. 36, r. 1, p. 261. such copy to be in print, except such parts (if any) of the pleadings as are permitted by K.C. to be written, O. 36, r. 1, p 262. entry of jndgment to be dated as of the day on wluch judgment is pro- nounced when judgment is pronounced by Ct. or judge in Ct., O. 36, r. 2, p. 262 ' ' judgment shall take effect from that date, O. 36, r, 2, p. 262 entry of jndgment to be dated as of the day on which the requisite docnments are left with the proper officer for the purpose of au(di entry Digitized by Microsoft® 364 INDEX. JUDGMENT.— continued. wliere judgment is not pronounced by Ct. or judge in Ct., O. 36, r. 3, p. 262 judgment shall take effect from that date, O. 36, r. 3, p. 262 proper oilicer shall examine affidavit or document produced where it is pro- vided by H. Ct., R.P., E.C., or otherwise that any judgment may be entered or signed upon the filing of any such affidavit or production of any document, O. 36, r. 4, p. 262 he shall enter judgment accordingly if the same be regular, and contain all that is by law required, O. 36, r. 4, p. 262 production of order or certificate sealed with the seal of the Ct., or of a return, shall be sufficient authority to officer to enter judgment accord- ingly, where by Act R.P., R.C., or otherwise, any judgment may be entered piursuant to any order or certificate, or return to any writ, O. 36, r. 5, p. 262. JUDICATURE, SUPREME CT. OF— See Supreme Ct. of Judicature. JUDICATURE ACT, 1873— See Act, Supreme Ct. of Judicature. JUDICIAL COMMITTEE OP H.M.'S PRIVY COUNCIL. existing salaried judges of, to be some of first ordinary judges of C.A., 3. 6, p. 4. jurisdiction of, upon appeal from H.C. of Admiralty, or in lunacy transferred to C.A., s. 18, p. 11. no appeals to, from H.C. or C. A., from any judgment, subsequent to com- mencement of Act, s. 20, p. 12. P.C., who, having held office of judge in East Indies, or in any of H.M.'a dominions beyond the seas, shall have been appointed to attend sittings of Judicial Committee, may attend D.C. of C.A., to which causes from Judicial Committee, shall have been transferred, s. 55, p. 40. appeal and petitions usually heard by, and jurisdiction of, may, by order in Council be transferred to C.A., s. 21, p. 13. JUDICIAL COMMITTEE ACT, 1871. salaried judges appointed by, to be some of first judges of C.A., s. 6, p. 4. The Act at length, pp. 128-129. JUDICIAL oath; to be taken by all judges (except Ld. Ch.), s. 9, p. 6. defined by Promissory Oaths Act, K68, s. 9, p. 6. JUNIOR BARONS. and puisne justices not to exceed 12 in number, s. 5, p. 2. JURISDICTION. of H.C. to be original and appellate from inferior Cts., s. 4, p. 2. of C.A. to be appellate, with original jurisdiction incident to appeal, s. 4, p. 2. of judges of H.C. to be equal, s. 5, p. 3. of H.C, s. 16, p. 9. of various Cts. and judges to be vested in H.C, s. 16, p. 9. What the jurisdiction of Cts. transferred shall include, s. 16, p. 10. not transferred to H.C, s. 17, p. 10. of H.C. as to Crown Cases Reserved, s. 47, p. 37, see Crown Cases Reserved. transferred to C.A., s. 18," p. 11. of appeals from H.C. or any judge thereof given to C.A., 3. 19, p. 12. of Judicial Committee may be transferred by order in Council to CA., s. 21, pp. 12-13. rules as to exercise of, s. 23, p. 15. vested by Act in H.C. and C.A., to cease to be exercised, except by H.C. and C.A., s. 22, p. 14. of judges of H.C. on circuit, s. 29, p. 24. to be exercised as to practice and procedure, as provided by Act, E.C. and Orders of Ct., and in absence of special provision, as nearly as before, s. 23, p. 15. of supreme Ct., H.C. and C.A. over solicitors, attorneys, and proctors, s. 87, p. 68, see Solicitors, of inferior Cts., ss. 88-91, pp. 59-60, see Inferior Courts, in equity and admiralty, may be given to inferior Cts., similar to County Cts., s. 88, p. 59. Digitized by Microsoft® INDEX. 365 JURISDICTION— continued. power of inferior Cts. having equity and admiralty jurisdiction, s, 89, p. 59. service of writ out of, E.P. 6, p. 66, see Writ of Summons. JURY— See also Evidence ; Tiial. cases which cannot conveniently be made before a jury, may be tried before a Referee, s. 57, p. 41, see Referee ; Referee Offldal ; Referee Special, report of referee on questions of fact (unless set aside by Ct.,) to be equivalent to verdict of, 3. 68, p. 42. law relating to juries not to be affected by Act, R.P. or E.C., s. 72, p. 48. trial before judge and jury, R.P. 30, p. 75, see Trial, issues of fact to be tried before judge and jury if deft, gives proper notice of such desire, R.P. 31, p. 75, see Trial ; Notice, trial by jury tobeheldbeforeonejudge, unless otherwise specially ordered, R.P. 33, p. 75. sittings for trial by, to be held in London and Middlesex continuously as far as practicable, s. 30, p. 25. JURYMEN. law relating to, not to be affected by Act, R.P. or R.C., s. 72, p. 48. JUSTICE — See Lord Chief Justice of England ; Lord Chief Justice of Common Pleas. JUSTICES — See Puisne Justices ; Lords Justices of Appeal. LANCASTER — See Lancaster, Duchy of ; Lancaster, Court of Common Fleas at ; Lancaster, County Palatine of ; Chancellor of. Duchy. LANCASTER, DUCHY OF— See also ChanceUor of Duchy. derk of council not to be ofELcer of Supreme Ct., s. 77, p. 51. note on Lancaster, p. 173. LANCASTER, COURT OP COMMON PLEAS AT— See pending matters in, assigned to C.P. Div., s. 34, p. 30. jurisdiction of, transferred to H.C., s. 16, p. 10. form of action in, R.P. 1, p. 65. officers of, s. 78, p. 52. note on the Ct. of C.P. at Lancaster, pp. 172-173. LANCASTER, COUNTY PALATINE OF. jurisdiction of C.A. in Ch. of, not transferred to H.C., s. 17, p. 10. jurisdiction of C.A. in Ch. of, transferred to C.A., s. 18, p. 11. to cease to be a County Palatine as to issue of commissions of assize, s. 99, p. 62. no error or appeal from Ct. Ch. of, to House of Lords or Judicial Committee, after commencement of Act, but judgment previously obtained to be subject to appeal, s. 20, p. 12. officers of, s. 78, p. 52. note on County Palatine, p. 174. siiits for possession of may be taken by mortgagor, if mortgagee has not given notice to take possession, s. 25, p. 20. ... causes referring to raising of portions or other charges on, assigned to C. Div., s. 34, p. 29. ^. ^ ^ . ^ or buildings, belonging to party m action, may, on order, be entered, R.P. 45, p. 78. any duty imposed by, on existing judges (subject to change), still to be per- formed, s. 11, p. 6. .... J, T 1- > i ., duties imposed by (not incident to administrations of Justice;, to be per- formed by every Judge of H.C., s. 12, p. 7. and Equity to be concurrently administered, s. 24. jurisdiction given by, to any judge of Ct. transfeiTedto H.C., to bemduded in jurisdiction transferred to H.C., s. 16, p. 10. question of, may be raised previous to trial of fact, R.P. 24, p. 72. where beneficial interest not deemed merged in Equity, estate not to merge only by operation of, s. 25, p. 20. Digitizeb by Microsoft® 366 INDEX. LAW AND EQUITY. Inferior CtB. baTin^ jurisdiction In, to have has ample powers as H.C. n. 89, p. 59. to be concurrently administered, s. 24, p. 16, see Rules. LEASE. made by mortgagor jointly with some other person, an exception to new rule as fo suits by mortgagors for possession, &c., in respect of such lease^ s. 25, p. 20. causes as to specific performance of, assigned to C. Div., a. 34, p. 29. LEGAL. claims, demands, &c., to be recognised (subject to provisions for recognition of e^iuitable claims, dEc), s. 24, p. 19. year, division of, into terms abolished, s. 26, p. 23. LEGAL ESTATES, TITLES,' RIGHTS, DUTIES, OBLIGATICHSTS, AND LIABILITIES, existing by common law or custom, to be recognised (subject to provisions for giving effect to equitable estates, &c.), s. 24, p. 19. ' LENGTH. of interrogatories or answers, if improperly long, costs to be borne by party in fault, R.P. 25, p. 73, see Interrogatories ; Costs. of service of existing judges, how to be computed, 3. 11, p. 7. LETTERS PATENT. vacancies in .Judge of H.C. to be filled up by, s. 5, p. 3. three ordinary judges of C,A. may be appointed by, s. 5, p. 4. vacancies in judge of C.A. may be filled up by, S'. 6; p. '5. pensions may be granted to judges of H.C. and ordinary judges of C.A. by, s. 14, p. 8. jurisdiction as to grants of, not to be transferred to H.C, s. 17, p. 10. LIABILITY. of existing judges to perform all duties (subject to change) which they are now liable to perform, s. 11, p. 6. to serve on commissions of assize, (fee, not to extend to judges appointed before passing of this Act, not liable, s. 11, p. 6. of every judge of H.C. to perfoi-m duties not incident to administration of justice, previously performed by any judge, s, 12 p. 7. where there are several on the same contract, all or any persons liable may be joined as parties R.P. 16 p. 70. LIABILITIES — See Equitable Estates, Liabilities, die. ; Legal Estates, no exceptions to answe]^ B.P. 25, p. 73. no injunction, s. 24, p. ,18. no legal terms, s. 26, p. 23.. no local venu^ R.P. W, p. 74. no new trial (unless, &c.),' KP. 48, p. 80. no prohibition, s. 24 p. 18, ' no proceedings in error, R,P. 49, p. 80, no order by consent to be subject to appeal, except by leaver s. 49,. p; 3S NON-APPEARANCE— See Appearance. NON-COMPLIANCE. non-compliance with any B.G. shall not render the proceedings in anyactioiv void, O. 63, p. 281. unless the Ct. or jadge shaH so direct, O. 53, p. 281. such proceeding may be set aside either wholly or in part as irregulav, ''OX amended or otherwise dealt with in such manner and upon such terms as the Ct. or judge shall think fit, 0. 53, p. 281. NON-JOINDER. action not to be defeated by, ot parties, but necessary parties to be addedl. R.P. 9, p. 68. > *■ • •> r -^ y NON,SUIT. ,„ ; judgment of non-suit (unless Ct. or Judge otherwise directs), to have same: effect as judgment upon merits for deft., K.P. 46, p. 79. jud^ent of, non-suit in case of mistake-, surprise, or accident, may b^ set aside on terms, R.P. 46, p. 79. NOTE— See Promissory Note. NOTES.. of proceedings may on verification be regarded, if upon hearing of anappealV a question arise as to ruling or direction of a Judge to a jury or assessors, R.P. 55, p. 82. -6 J J "> KOTICE— See Notice of Motion on Appeal. of motion^by way of cross appeal unnecessary, E.P. 63, p. 81. el respondent intend^ upon heniing of appeal, to- contend t^at dedsipn o£ Digitized by Microsoft® INDEX. -!•!■} NOTICE.— continued. pt, below should be varied or altered, he must give notice of mtention to any parties affected, R.P. 53; p. 82. "iocuuou m noMoe of such contention to be given T?ithin such times aa may be prescribed byR.C. on special order, R.P. 53, p. 82. effect of omission to give such notice (1.) not to diminish powers of Ct • (II.) ground for adjoumment of appeal; (III.) ground' for special order as' to costs, R.P. 53, p. 82. > by service of, persons may be made parties if connected with original subject , of cause, s. 24, p. 17, such notice to be served according to R C or order of Ct., s. 24, p. 17. to be served on defts. added, as prescribed by R.C., R P. 9 p. 68. uiay be given by any party for production of documents pleaded,' R. P. 26, p. 7?. ^' m writing to person liable to chose in action, necessary to effect assignment of chose in action, s. 25, p. 21, see Chose in Action. by persons liable to chose m action of disputed claim, s. 25, p. 21, see Chose in Action, of mode of trial, may be given by jfl., B.P. 31, p. 75^ see Trial, may be given by deft, (within time prescribed by R.C.) to have issues of fact tried before a judge and jury, R.P. 31, p. 75, see Trial. - , of writ, in lieu of service of writ, E.P. 5, p. 66, see also Writ of Summons, to husband, personal representative, trustee, or other successor may be ordered by Ct. to prevent abatement of action, R.P. 17, p. 70. all notices required by E.C. to be in writing unless expressly authorized by Ct. or Judge to be given orally, 0. 50, r. 1, p. 277. to third party when question to be tried affects him, R.P. 12, p. 69. NOTICE OF MOTION ON APPEAI. appeals to C.A. to be brought by, in a summary way, R.P. 50, p. 80. no petition, case, or other formal proceeding to be necessary other than, R.P. 50, p. 80. appellant may appeal from whole or any part of judgment or order by, R.P. 50, p. 80. . - ^ -. . to state whether whole or jiart only of judgment or order is complained of, and in latter case to specify such part, R.P. 50, p. 80. ' to be served upon all parties directly affected by appeal, R.P. 51, p. 80. need not be served on parties not affected; R.P. 51, p. 80. C.A. may direct service of, on all or any parties to a^ion or other proceed- ing, B.P. 51, p. 80. C.A. may direct service of,~ on any person not a party, R.P. 51, p. 80. C.A. may postpone or adjourn on just terms appeals where service on parties ordered, R.P. 51, p. 81. C.A. may give ^cfrjudgment and make such order as if parties served with, had been original parties, R.P. 51, p. 81. may be amended at anytime as tO C.A. may seem fit, R.P. 51, p. 81. NUMBER 05" JXIDGES. appointed in place of puisne justices or juiiior barons, not to exceed twelve, s. 5, p. 3. of H.C. not to exceed twenty-one, s. 5, p. 3. '~ ex-officio judges of C.A. to be five, s. 6, p^. 3. of ordinary judges of Ct. of C.A. not to exceed nine, s. 6, p. 3. pi D.C. to be t£ee, except through pressure of business or any other cause '' ' " ' it be not found convenient, s. ^, p, 34. of C.A. or its D.C, to be any number not less than three, s. 53, p. 39. of Supreme Ct. not to be reduced or increased, s. 32, p. 28. OATH. "'>': interpretation of term, a. 100, p. 64: - ~ OATHS. ■ - ' - ■■' :. ■ ■ : , ' power of commissioners to administer, a. 82, p. 65, see Commissioners to Administer Oaths. -'' - • * of judges, to be oath of ' alledance and judicial oath, s. 9, p. 6. to be taken in presence of La. Ch., B. 9, p. 6; Digitized by Microsoft® 374 INDEX. OATHS — continued. to be taken by Ld. Ch. to be same as heretofore, ». 9, p. 6. of office to be taken by judges, s. 9, p. 6. OBJECTION. ' , to interrogatories on ground of irrelevancy, R.P. 25, p. 73, see Interrog»6ofie«. OBLIGATIONS— See Legal Estates, <£c. ; Equitable Estates, &c. OFFICE, oaths of, how to be taken s. 9, p. 6. OFFICE COYY OF AFFIDAVITS. any party requiring a copy of any affidavit filed by any other person shall take an ofSoe copy, O. 50, r. 8, p. 278. an office copy o^ any aflSdavit required or ordered to be x>rinted under I? C. shall be a printed copy, O. 50, r. 9, p. 278. the party filiug any affidavit reqi'ired or ordered to be printed shall t;ike % printed office copy, paying -therefore at the rate of 2d. per f oho, 0. 50, r. 10, p. 278. every other printed office copy shall be paid for at the rate ol Id. pir folio, O. 5fl, r. 10 p. 278. OFFICE OF JUDGE— See Judge ; Tenure of Office. OFFICES.— See Sittings and Vacations. of the Cts, during vacation, s. 27, p. 24. OFFICERS— See also Queen's Remembrancer ; Judges Marshall, transfer of existing staff of, to Supreme Ct,, s, 77, p. 50. rank, tenure, salaries, and pensions of to remain as before, s. 77, p. Si. of Ct. of Pleas at Lancaster and Durham shall, subject to H.C., perform same duties as heretofore, s. 78, p. 53. appoint^nent and salary of personal officer of future judges, s. 79, p. 54. doubts as to status of, to be determined by R.C., s. 81, p. 55. compensation to officers abolishedwhere previously paid out of fees, s. 80, p. 55. duties, appointment, and removal of officers of Supreme Ct., s. -84^ pp. 56-57. of M.R. to be appointed as heretofore, s. 84, p. 57. of Supreme Ct. generally to be appointed by Ld. Ch., s. 84, p. 56.' of Div.j shall be appointed by president, s. 84, p. 57. papers in possession of officers to be dealt vrith as H.G. or C.A. shall direct; , s. 92, p. 60. attached to judge, shall be appointed by him, s. 84, p. 57. of Ld. Ch., to continue to be attached to him, and required to perform in the future, duties heretofore required by him, s. 94, p. (Jl. Balaries and pensions of, s. 85, p. 57. of Inferior Cts. to transnut to H.C. record of causes, transfered to H.C., s. 90, p. 60. Ld. Ch. with concurrence of Treasury, may on vacancy abolish office of any officer, reduce his salary, or alter designation or duties, s. 77, p. 52. OFFICERS. All oncers who at the time of the commencement of the act shall he attached to the former courts shall be attached to the Divs. of the H.C, as follows, O. 54, r. I, p, 281. _ Former Court. Divisions of H. C. Court of Chancery. Chancery Division. Queen's Bench. Queen's Bench Div. Common Fleas. Common Pleas Diy- LoudoD"court of Bankruptcy. } Sxchequer Div. Court of Probate. 1 ti_ ». x nr.. .» Court of Divorce. >• ^^^*'^ P.'^?!?®- *"'' Court of Divorce. ) Admiralty Div. Officers attached to any Div. shall follow the appeals from the same IMr., and shall perform in C. A. analogous duties in reference to snch appeals as the registrars and officers of Ct. Ch. usually performed as to re-hearin|:;9 in the C.A. in Ch., and as the masters and officers of the Q.B., C.P., and Ex. respectively performed as to appeali heard by the Ct. of Es. Cbawbs^ O. 54, r, 2, p. 282. Digitized by Microsoft® INDEX. 37S , OFFICIAL. precadence of judges, s. 10, p. 6. OFFICIAL REFEBBE-See Eeferee ; Referee Offloial OPINION. "^Tpn °??^ be taken on questions of law, before trial of questions of fact, R.-r. 24, p. 73. ORAL EXAMINATION. of mtnesses in trials by juries not to be affected by Act, R.P. or R.C., ORDER— See ^Iso Judgment. interpretation of term, s. 101^ p. 64. ,in lunacy, appeal from, transferred to C.A., s. 18, p. 11, on appeal, C.A. to have all powers of H-G as to, s. 19, p. 12. of C.A. or H.C., as to papei-s and other chattels, persons failing to comply with, to be guilty of contempt of Supreme Ct., s. 92, p. 61. ,„ to pending suit may be perfected as if Act had not passed, provided cause has been fully heard, s. 22, p. 14. perfected, may be executed, enforced, amended, or discharged by H C and C.A., s. 22, p. 14. ORDER IN COUNCIL power by, to transfer jurisdiction of Judicial Committee to C.A., s. 21, p. 12. power by, to make G.R. as to assessors in Ecclesiastical Causes in C.A., s. 21, p. 13. power by, to aimul G.R. as to Ecclesiastical assessors, s. 21, p. 14. regulating vacations to have force of Act, s. 27, p. 24. may alter Divs. and number of judges, and abolish distinction of office of ' certain judges, s. 32, p. 28. to be laid before Parliament and have force of Act, s. 32, p. 28. required for establishment of D.R., s. 60, p. 42. may be made before 2nd November, 1874, making R.C., s. 68, p. 46. what shall be provided for by such rules, s. 68, pp. 45-46. power to confer jurisdiction in Equity and Admiralty on Inferior Ct»., similar to that of County Cts., s. 88, p. 59. ORDER BY LORD CHANCELLOR. with concurrence of L.C.J, of England, to transfer any question of law,' or of fact from any one judge to any other judge, R.P. 41, p. 77. ORDERS.— See Execution. what shall not be subject to appeal, s. 49, p. 38. as to discharging, made in chambers, s. 50, p. 38. ORDERS BY COURT OR JUDGE, as to the following subjects: (c— court; j.— judge ; c. or j. — court or judge). . abatement (c. or j.) to make trustee, husband, personal representative or successor in interest, parties, R.P. 17, p. 70. account (c. or j.) R.P. 8, p. 68. accounts (c. or j.) at any stage, R.P. 42, p. 77. action (c. or j.) discontinuance of, R.P. 46, p. 79. action (c. or j.) to defend on terms, R.P. 7, p. 67. Affidavit (c. or j.) attendance of person making, for cross-examination, R.P. 36, p. 76. affidavit (c: or j.) may be read at hearing or trial, R.P. 36, p. 76. affidavit (c. pr j.) proof of any particular facts, R.P. 36, p. 76. attachment of defts. (o. orj.) O. 40, r. 1, p. 270. amendment (o. orj.) of statements, R.P. 18, p. 71. charging Cp.C. or j.) stock or shares, O. 41, r. 1, p. 270. co-partners (j.) names of, R.P. 11, p. 69. costs (c.) of prolix forms of, R.P. 3, p. 66. counter-claim (c. orj.) defendant not to use inconvenient, R.P. 20, p. 72. counter-claim (c. orj.) withdrawal of, R.P. 46, p. 79. cross claim (o. or j. ) defendant not to use inconvenient, R.P. 20, p. 72. , custody (e. orj.) of subject matter of litigation, R.P. 43, p. 78. decree (c.) stay of proceedings on, s. 24, p. 18. defence (c. orj.) withdrawal of, R.P. 43, p. 79. documents (c. orj.; production of, R.P. 27, p. 74. Digitized by Microsoft® 376 INDEX. ORDERS BY COURT OR JUDGE— continued. exumiimtions of judgment debtor (0. or j.) O. 40, r. 1, p, 268. jjluBbund (c. or j.) to be made a party on abatement, R.P. 17, p. 70,. uiterhn.(c. or j.>a8 to custody of subject matter of Utigation, R.F. 43,, p. 7^ interlocutory order (c. or j.)by either party, R.P. 41), p. 77. interrogatories (c. or j.) objection to irrelevant, R.P. '&, p. 73. incLuiries (c. or j.) at any stage, R.P. 42, p. 77. issues (JV RP. 19, p. 71. joinder (c. or j.) of parties, R.P. 9, p.68. -. judgment (c. or j.) by default to set aside or vary on specially endorsed writ„ R.P. 7, p. 67. judgment (c.) stay of proceedings on, s. 24, p. 18. judgment (c. or j,) .wlxeregpod defence not she>rai on.specially endorsed, writ,, judgment debtor (c. or j.) to be examined, O. 40, r. 2, p. 288.. R.P. 7, p. 67. married women (0. or j..) to sue or defend, R.P". 15, p. 70. misjoinder (c. or j.) of parties, R.P. 9, p. 68. new trial (c), R.P. 48, p. 80. non-joinder (c. or j.) of parties, R.P. 9, p. 68. 1 non-suit (c, or j.) judgment for defendant on merits, R.P. 46, p. 79. notice (c. or j.) of wrii in lieu of service, R.P.. 6, p. ^ order (c.) stay_ of proceedings on, s. 24, p. 18. parties (c. or j.l beneficially interested to be added as, R.P. 14, p. 69i parties (c. or j.) joinder, mis-joinder, or non-joinder of, R,P. 9,. p. 68. parties (c.)provisioafor case of doubt, as to proper, R.P. 13, p. 69. parties (c.) representation Iiaving same interest, R.P. 10^ p. 68. parties (c. or j.) ttiird, RJP. 12, p. 69. personal rex>resentative(c.orj.)to be madeapartygaabatement, R.P: 17,p.70i possession (c. orj.)of property in. dispute, R.P. 45, p. 78. preservation ([c. or j.) of property, R.P, 43 and 45, p. 78. record (c. or j.) withdrawal of, R.P. 46, p. 79. ' ■' — - "■,p.75. referees (c. or j.) trial de die in diem, R.P. 34, p. 75. rule (c.) stay of proceeding on, 3. 24, p. 18. sale (c. or j .) of goods, wares, merchandise by whom, how, and on what terms, R.P. 44, p. 78. samples (c. or j.) of subject matter, RP. 45, p. 78. security (c. or jO of subject matter of litigation, R.P, 43, p. 78. service (c. or j.) of writ out of jurisdiction, R.P. 6, p. 66. service (0. or j.) substituted of writ, R.P. 6, p. 66. set-off (c. or j.) defend^mt not to use inconvenient, R.P. 20, p. 72. shares (D.C. or j.) charging, O. 4, r. 1, p. 270. statement to. or j.) alteration^ or amendment, R.P: 18, p. 71. stay of proceedings (c. or j.) on ajipeal to C.A., RP. 58, p. 83. stay (c.) of proceedings onjudgment, decree, rule or order, s. 24, p. 18. stock(D.C..or j.)chatgmg, O. 4, r. 1, P..270. successor in interest (c. or j.) to be made a party on.abatement, R,P. 17, p. 7bi trialfe or j.) as to mode of on application of defendsnt, R.P. 31, p. 75. trial (c. or j. j by jury by more tlian single judge, R.F. 33, p. 75. trial (c. or j.J of different questions in, same action in, djfflerent ways ani places, R.P. 32,, p. 75. trial (0. or j.) of preliminary questions of law, R.P. 24, p. 73. trial (c. orj.)place,of not namedinplajmtiU's statement, R.P. a8,p.74. trial (c. or J.) plade of, otherwise thaji Middlesex, R.P. 28, p. 74. trial (c. or j.) separate of several causes found, R.P. ^, p. 72. trustee (c. or j.) to be made a party on abatemeat, R.P. 17, p. 70. ■witness (c. orj.) cross-examination of, R.P. 36, p. 76. witness (0. orj. )depoBitions of, examined by officers of Ct. , to be filed, R.P. 45„ witness (c. or j.) depositions of, examined by officers., cfcc, to be used in evidence on terms, R.P. 46, p. 78. Digitized by Microsoft® INDEX. 377 ORDERS BY COURT OR JUDGE— continued. -• s^. witness (c. or j.)exiVnun»tion of by interrogatories oi' before commist^oner or exa,miner of witness tor good cause unable to attend, R.P. 36, p. 76. witness (c. or j.) examination by officers of Ot., or 6th6r persons at any place, R. P. 45, p. 7^. ' '^ writ (c.) costs and prolix form ot, R.P. 3, p. 66. ■ORDERS INTERLOCUTORY— See Interlocutory Orders. ORDERS INTERIM— See Interim Ordera. ORDINARY JUDGES OP COURT OF APPEAL— See also Judges' of C.A. ; Appeal, Court of. ' ' ' not to exceed nine in number, s. 6, p. 4. ■who shall be the first, s. 6, p. 4. nol! boond to sit in Ct. when preveuted.&e., s. 6, p. 4. to be styled Lords Justices of Appeal, s. 6. p. 4. not required to take de^ee of serjeant-at-law, s. 8, p. 5. vacancy in oflSce to be lilled up by letters patent, s. 6. p. 5. rank of in Supreme Ct., when Peer, when P.C.,.s. 10, p. 6. salaries of, s. 13, p. 8. ORIGINAL. documents filed in D,R., transmission of to H.C.; provided for, s. 65, p. 44. ORIGINAL JURISDICTION. to be exercised by H.C., s. 4. p. 3. certain, to be exercised by C.A., s. 4, p. 2. OYER AND TERMINER. no judge appointed before passing of Act, not liable to act on, to be liable to act on, s. 11, p. 6. - commission of, not to be affected except as expressly directed^ s. 93, p." 61. . jurisdictiou ot Cts. created by, transferred to H.C., s; 16, p. 10. PAPER. to be used for proceedings ordered to be printed, to be cn^am wove, macliine! drawing, foolscap folio paper, ISDia. per mill reant, O. 50, r. 2, p. 277 PAPERS— See Books. PARLIAMIENT — See also House ot Commons ; House ot Lords. on address from both Houses Ot, H.M. may remove judges of H.C. andC.A., s. 9, p. 5. ' . orders of H.M. in council altering divisions, abolishing offices, and altermg; salaries and pensions, to be laid before, s. 32, p. 28. ■ ''' power to annul such order by address to H.M., s.. 32. p. 28. must be laid before, mthin forty days of making, s. 68, p. 46. on address from either House. G-.R. as to assessors in Ecclesiastical causes in C.A. to be annulled, s. 21, pp. 13 14. P-ARLIAMENTAKY ELECTIONS ACT, 1868. rota of judges tor election petitions under s. 38 p^ 33. section of referring to rota at length; pp. 101-102. " PARTICULAR ESTATE OR FUND; .„i-. to bear costs of trustees and mortgagees as hitherto m Cts.. of Eljmty, R.P. 47, p. 80. PARTIES. iuterpretatlbn of term "party,"3. 100, p. 63. ' - pei-sons may be made parties to an action by notice if oonnectea, witu original subject ot cause, s; 24, p. 17. i. . ^ , action not to.be defeated by mUjoinder or'iion-jpmder ot, pajlies raiprdperly joined may be struck out, parties who ought to be joined may be added^ R.P. 9, p. 681 ■' ' • ■ .■ '" ■' '-'--■ '\ where numerous, having same interestj one or more may sue or be sued, or may be authorized to defend, R.P. 10, p. 68. - _ co-partners may sue or be sued in name ot firm, R.P. U, p. 68. may apply for names of co-partners suing or being sued in name of firm^. It P 11 D 69 . > power 'to cletenmnB qnestlons as against third' parties; R.P. 12, p. 69.' * provision in case ot doubt as to proper, R.P. 13, p. 69. ^, . . . . tensteeSi executors, and administrators may sue or he sued without joimng persons beneficially interested, R.P. Wy p. 69.. Digitized by Microsoft® 378 INDEX. PARTIES- -continued. beneiieially interested in any trust or estate, may be joined in action, R.P. 14, p. fi9. may be substituted in lieu of others, R.P. 14, ■p. 69. married women and infants may sue by next friends, R.P. 15, p. 69- infants may defend by guardians ad litem, R.P. 15, p. 70. married women, by leave of Ct., may sue or defend without husband or next friend, on giving security for costs, R.P. 15, p. 70. all or any, jointly and severally liable on any one contract, may be joined, R.P. 16, p. 70. marriage, death, or bankruptcy of parties not to abate action, If cause survive; R.P. 17, p. 70. Ct. may order husband, personal representative, trastee^ or other successor ,in interest, to be made pa-rty in case of marriage, death, or bankruptcy of any party, R.P. 17, p. 70. joinder of several causes of action between same, R.P. 22, p. 72. may exhibit interrogatories and obtain discovery from any, R.P. 25, p. 72, see Interrogatories ; Costs. may obtain production of documents pleaded, by notice, R.P. 26, pp. 73 & 74. lijcerpretatu>u of teriu "piirty," w 100, p. iS'S provi-^ions i I 15 and IGVicf., c 86. s. 42 ahull he in force in all actions in H C, suhjpct tu Art. R.P. and R.C., 0. 16, r. 4. p. 2-^3. Marriaije. death, or hwnJcruptcy of parties — see Pleading. no actiun shalt be defeated by reason of the misjoinder of parties, R.P, 9, p. 68 thb ct. may. In every action deal with the master in controversy,, so far ag regards the rights and iuterests of the parties actu;iily befure it, R.P. 9, p. fi8. Representation of parties. where tiiere are numerous parties having the same interest in one action, one or more of such parties may ?ub or be sueii, or m ly be autlmrisf-d by the Ct. to defend in such aciuii on behalf of Auyi fur the benefit of aU parties so interested, R.P 10, p. 68. Plaintiffs all perHons may be joined as pis. in whom the right to any relief 'claimed is allegffi to exist, whether jointly, severally, or in the alternative, O. 15, r. 1, p. 222. juitgmeiit may be given for such one or more of pis. as may be found to be eiitit'ed to relief for such relief «s he or they may be entitled to, without any amendment, O. 15, r. 1, p. 222. but thedefenilant, thoxi^h unsuccessful, shall be entitled to his costs occasioned by so joining any person or persons who shall not be so found entitled to reliff, unless Ct. in disposing of the costs of the action shall otherwise direct, O. 15, r. 1, p. 22'2. persons m;iy be ordered by Ct. or judge to be substituted or added as pis. upon such terms as may seem just (I.) where an action has been com- menced in the name of the wrong person as pL, or (II.) where it is doubtful whether it has been commenced in the name of the right pi. or pis. if Ct. or judge satisfied (a) that it has been so commenced through a hand fide mistake, and (&) that it is necessary for the determination of the real matter in dispute so to do, O. 15, r. 3, p. 223. pi. may at his option jnin as parties to the same action all or any of the persons severally or jointly, or jointly and severally, liable on any one action, including parties to bills of exchange and promissory notes, R.P. 16, p. 70. all persons may be joined as defts. against whom the right to any relief is alleged to exist, whether jointly, 'severally, or In the alternative, O. 15, r. Z^ p, ^22. judgment may be given ngainst such one or more of the defts. aa may be found to be liablp. according to their respective liabllitieB. without any amendment, O. 15, r. 2, p. W. Digitized by Microsoft® INDEX. 379 PARTIBS.-coTitinued. Ihird parties. *^L''^^'i?^'^ ??" hare power to grant to any deft, in respect of any equitable estate or right or other matter of equity, and also in respect of any leaal estate, right, or title claimed or asserted by him, all such re.ief relating to or connected with the original subject of the cause or matter, and claimed against any other person than the pi., whether already a party to the same cause or matter or not who shall have been ttuly served with, notice In writing of sucli claim pursuant to any R C or any order of the Ct as might properly have been sr-mte-l aRainst such person if he had been made a deft, to a cause Instituted by the same deft, for the like p.irpose, s. 24, p. 17. every person served with notio shall thenceforth be deemed a party to such cause or matter with the same rights in respect of hia defence against such claim as if he had been duly served in the ordinary way by such deft., s. 24, p. 17. Ct. or judge may ion notice being given in snch manner and fnrm as prescribed by R.C.), make such order as may be proper for having question determined (a), where a deft, is or claims to be entitled to contribution or indeitnity, or any other remedy or relief over against any other per.son, or (6), where from any other cause it appe^irs to the Ct or judge, that the question in the action, should be determined, not only as between pi. and deft., but as between pi., deft., and any other person, cr between any or either of them, R.P. 12, p. 6). Ct. or judge before or at the time of making order for having question deteimined, shall direct such notice to be given by pi. at such timp and to such person as may be thought proper, O. 15 r 10 p. 224. , if made at the trial, the judge may postpone trial as he may think fit, O. 15, r. 10, p. 224. deft. miy,_by l^ave, issue a notice that he claims to be entitled to contribu- bution, indemnity, or other remedy, or relief over against a persou not a party, O. 15. r. 9, p. 224. notice to be stamped with seal with which writs are sealed, O. 15, r. 9. p 224. copy of notice to be (a) filed with proper officer, and (&) served on such pprson according to the rules relating to the servica of writs of sum- mons, O. 15, r. 9 p. 2.'4. notice to state nature and grounds of claim, 0. 15, r. 9, p. 224. notice to be ser.ved within time limited for delivering statement of de- fence (unless otherwise ordered), 0. 15, r. 9, p. 224. form or notice provided lor, O. 15, r. 9, p. 224.— The form Schedule B, form 1. p. 300. copy of statement of clairo, or if no statement of claim, then copy of writ to he served with the notice, O. 15, r. 9, p. 2241 if party served deslies to dispute pl.'s claim as against deft, on whose behalf notice has been given, he must enter appearance in action within 8 days from service of notice, O. 15, r. 11, p. 224. in default he shall be deemed to admit validity of judgment obtained a>i:ainst such deft., whether obtained by consent or otherwise, O. 15, r. 11, p. 225. failing to appear within 8 days, he may, however, apply to Ct. or judge for leave to appear, and leave may he given upon such terms; if any. as Ct. or judge shall think fit, O. 15, r. 11, p. 225. if third p^rty appears pursuant to notice, party giving notice mav apply to Ct. or judge for directions as to mode of having question in action deter- mined, O. 15, r 12, p. 225. Ct. or judge, on hearing such applications (a), may, if it shall appear de- sirable so to do, give the person so served liberty, to defend action upon such terms a^ shall seem just, and (&) may direct such pleadings to he delivered, or (&&) such amendments in any pleadings to be made, and (e) generally ma.y direct such proceedings to be taken, and give such directions as to Ct, or judge sludl appear proper for IiaTing ques- Digitized by Microsoft® 380 INDEX. PARTIES.- continued. tion most conveniently determined, and id) as to the mode and extent in or to which the person so served shall be hound or made liable by the decision uf the question, 0. 15, r. 12, p. 225. In probate actions. rules heretofore in use in Ct. of Probate to continue in force, subject (0 act, R.P. and R.C., 0. 15, r. 5, p. 2i3. In case of Iwnatics. lunatics and persons of unsound mind not so found may (a) sue as pis. by committee or next friend, or (b) defend by committee or guardians ap- pointed for that purpose, in manner practiced in Ct. Ch., in all cases iii vfaich they might have done so previous to act, O. 17, p. 226. no person shall be added as a pi. suing without a next friend or as the next friend of a pi. under disability without his own consent thereto, KF. 9, p. 68. Slarried women. may sue as pis. by their next friend in manner practised in Ct. Gh. before passing of act, a. 15, p. 7&. hy leave of Gt. or a judge may sue or defend without their husbands, and without a next friend, on giving such security, if any, as Gt. or judge may require, 3. 15, p. 70. Infants. may (a) sue as pis. by next friend, and (&) defend by their guardians ap- pointed for that purpose, in manner practised in Gt. Gh. before passing of act, s. 15, p. 70. Partners. any two or more persons claiming or being liable as co-partneit may sue or be sued in the name of their respective firms (if any), R.P. 11, p. 69. anv party to an action may 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, E.P., 11, p. 69. Trustees^ executors and aditiinistrdtors. may sue and be sued on behalf of or as representing the property or estate of which they are trustees or representatives without joining any of the parties beneficially interested in the trust or estate, and shall be con- sidered as representing such p^rties in the action, R.P. 14, p. 69. Ct. or judge may at any stage of the proceedings order any of parties beneficially interested to be made parties to the action, either in ad? dition to or In lieu of the previously existing parties thereto, R.P., 14, p. ti9. r .r 6 !■ . , AddititioYb, striMng out, and substitution of parties. Ct. or judge may order (a) that the name or names of any party or parties, whether as pis. or dfts. (a) improperly joined be struck out and ffi) that the name or names of any party or parties, whether pis. or dfts., who ought to have been joined, (c) or whose presence before the Ct. mav be necessary in order to enable the Gt. effectually and completely to adjudi- cate upon and settle all the questions involved in the action, be a^ldedj R.P. 9, p. 68. order may be made at any stage of the proceedings, E.P. 9, p. 68. order may be made either (I.) upon, or (I.I.) vrithout the application of either party, R.P. 9, p. 68. order may be made in the manner prescribed by R.C., R.P. 9 p. 68. order may be made on such terms as may appear to Gt. or judge to be just, K.P. 9, p. 68. no person shall be added as a pi. suing without a next friend, or as the next friend of a pi., under any disability, mthout his own consent thereto, R.P. 9, p. 68. all persons added as dfts. shall be served with a summons or notice, in such manner as may he prescribed by R.G... or by any special order, and the proceedings as against them shall be deemed to have begua only on the service of such summons or notice, R.P. 9, p. 68. ' application may be made to Ct. or judge at any time before trial by motion or summons, or at the trial of action in a summary manner, 0. 15, r. 6, p. 223. Digitized by Microsoft® INDEX. 381 PARTIES —continued. whsre defendant is added, unless otherwise ordered, pi. (I.) to file amended copy Of, and sue out a writ of summons and serve »uoh new dft. with such writ or notice in same manner as original dfts. are served, O. IS r 7 p BM, and (II.) If statement of clidm has been delivered, same to be amended in such manner as making sueh new defendant a party shaU render desirable (unless otherwise orderedX and (III.^ copy of amended statement of claim to be delivered to new dft. at tune when he is served with writ or notice or afterwards within four days after his appearance, 0. 15, r. 8, p. PARTS OF JUDICATURE ACT. Pait 1. of Judicature Act, 1873, s. 5-15, " Constitution and Judges of Supreme Court," pp. °" " ^ 187i " 2. of Judicature Act, 1873, s. 16-25, "Jurisdiction and Law," pp 9-23 " 3. of Judicature Act, 1873, s. 26-55, " Sittings and DistribuMon of Business," pp. ^-40. " 4. of Judicature Act, 1873, s. 56-76, " Trials and Procedure," pp 40-50 S. of Judicature Act, 1873, s. 77-87, " Officers and Offices," pp 60-59 " 6. of Judicature Act, 1873, s. 88-91, " Jurisdiction of Inferior Courts," pp. 59-60. ' " 7. of Judicature Act, 1873, s. 92-100, " Miscellaneous Provisions," pp. 60-64. PARTITION. causes as to, of real estates, assigned to C. Div., s. 34 p. 30. PARTNERS— See also Co-partners. "may sue or be sued in name of firm, R.P. 11, p. 68. Judge may direct names of co-partners suing or being sued in name of firm to be furnished, R.P. 11, p. 69. PARTNERSHIPS. matters referring to dissolution of, and taUng partnerships, accounts assigned to C. Div., s. 34, p. 29. PARTNERSHIP ACCOUNTS. writ of summons to be endorsed with a claim that pi requires an accounfe in cases of ordinary, R.P. b, p. 67. PASSING. of Judicature Act, 1873— 5th August, 1873 (title),— p. 1. PATENT— See Letters Patent. PATRONAGE. of existing judges, appointed judges of H.C., ordinary judges of C.A., to remain as if Act hiid not been passed, s. 11, p. 6. power to abolish, by order in council in certain cases, s. 32, p. 28. exercise of, where not specially provided for, s. 86, p. 58. PATMENT. of salaries, aUowaiices, and pensions to judges to be out of Consolidated Fund, s. 14, p. 9. of disputed chose in action into H.G. under Trustee Relief Acts, s. 25, p. 21, PAYMENT INTO COURT IN SATISFACTION. any deft, may pay into Ct. a sum of money by way of satisfaction or amends in respect of cause of action, where action is brought for a debt or pecnniary damages, O. 27, r. 1, p. 244. deft, may pay into Ct. at any time after service of the writ, and before. or at the time of delivering his defence, O. 27, r. 1, p. 244. by leave of Ct. or judge, deft, may pay into Ct. at any later time, O. 27, r. 1, p. 244. payment into Ct. shall be pleaded in defence, and the claim or cause of action in respect of whi(& snch payment shall be made shall be specified therein, O. 27, r. 1, p. 244. such sum of money shiji be paid to the proper officer, O. 27, r. 2, p. 244. proper officer shall give receipt f er same, O. 27, r. 2, p. 241. deft, shall serve npon pi. a notice that he has paid in money, and in respect •f what chum, if such payment be made before deliveiing bis defence, 0. 27, r. ^ p. 244. fonu of notice provided for, 0. 27, r. 2, p. 244. Digitized by Microsoft® 382 INDEX. PAYMENT INTO COURT IN SATISFACTION.— eontinued. the form, Schedule B, form fc, p. 301. money paid into C:. sh'iU be paid out to pi. or to his solicitor, on written authority of pi., O. 27, r. 3, p. 24i. , no jiffiilavit Bhall be necessary to verify the pis. signature to such written authority, unless specially required by the officer of the Ct., 0. 27, r. 3, p. 244. pi. may accept the money paid into Ct. in satisfaction of the cau;ies of action in respect of which it is paid in, O. 27, r. 4, p 244. provided payment into Ct. is made before delivering a defence, 0. 27, r. 4, p. 244. pi. must accept same within 4 days after receipt of notice of such pay- ment, O. 27, r._4, p. 244. if payment is first stated iu a defence delivered, then pi. may accept be- fore reply, O. 27, r 4, p. iH5. pi. shall give notice to deft, of acceptance, O. 27, r. 4, p. 245. form of notice provided for, O. *27, r. 4, p. 245. the form Scherlule B,, form 6, p. 3j2. pi. shall be at liberty (it sum paid in is accepted in satisfaction of entire cause of action) to tux Iiis costs, and in case of non-payment wirhin 48 hours, to sigu jud^mout for his costs so taxed, O- 27, r. 4, p. 245. PEERS. when ordinary or additional judges of C. A. to rank in Supreme Ct. in order of present precedence, s. 10, p. 6. PENDING BUSINESS. pending writs of error, or appeaJ, may be prosecuted to House of Lords, or to H.M. iu Council, or to Judicial Committee of P.C, s. 20, p. 12. .'. error or appeal may be brought to same Cts. if judgment or order obtained previous to commencement of Act, s. 20, p. 12. transfer of, provided for viz. ; — proceedings fully heard, but in wliieh judg- ment not perfected to be perfected by the old judges, but when judgment perfected new Cts. and judges to have jurisdiction, pending proceedings in error, or on appeal, to be continued by C.A., other proceedings by H.C., s. 22, p. 14. . : form of procedure, whether of old or new Cts., to be determined upon by Cts. as to, continued by H.C. and C.A^ s. 22, p. 15. in Ct. Ch. assigned to C. Div., s. 34, p. 29. in Q.B. (whether civil or criminal', assigned to Q.B. Div., s. 34, p. 30. in C.P. the Ct. of C.P. at Lancaster, and C.P. at Durham, assigned to C.P. Div., s. 34, p. 30. in Ex. and London Ct. of Bankruptcy, assigned to Ex. Div., s 34, p. 30. in Ct. of Probate, Ct. for Divorce and Matrimonial causes, and in H.C. of Admiralty, assigned to P.D. and A. Div., 3. 34, p. 31. PENSION. interpretation of term, s. 100, p. 64. of existing judges, appointed judges of H.C. or ordinary judges of C.A., to remain as if Act had not passed, s. 11, p. 6. of existing judges becoming judges in H.C. or C.A., time to count in latter capacity, s. 11, p. 7. of existing judges to be included in salaries payable under Act, s. 13, p. 7. of additional judges not to be affected by Act, s. 13, p. 8. of future judges of H.C. and of ordinary judges of C.A. to be amount now granted to puisne justices of Q.B., s. 14, p 8. of L.C.J, of England, M.R., t.C.J. of L.P. and L.C.B., to be amount now payable to, s. 14, p. 8. to be paid out of consolidated fund on usual quarter days, 3. 15, pp. 8-9. .officer attached to ajudge not entitled to, unless entitled thereto indepen- dently of Act, s. as, p. 57. officers transferred to Supreme Ct. to be entitled to same pension, s. 77, p. 51. power to abolish, on vacancy of certain offices, s. 32, p. 28. Digitized by Microsoft® INDEX. 3S3 PENSION.— continued. of officers appoiiitoil in pursuance of Port V. of Judicature Act, 1873 whose whole time shall be devoted to duties of his office to be entitled to pension payable to permanent civil servants of H.M., s. 85, pp. 57-58. PERFORMANCE (SPECIFIC). causes as to, of contracts between vendor ikud purchaser (including contracts for leivses) assigned to C. Div., s. 34, p. 29. PERISHABLE GOODS. power to make order for sale of, R.P. 44 p. 78. PERMANENT, infirmity to' entitle judges of'H.C. and ordinai-y judges of C.A. to pension, s. 14 p. 8. PERSONS. interpretation of term 'person' in R.C., O. 57, p. 2.'55. of idots and limatics, jm'isdiction as to custody of. not transferred to H C. s. 17, p. 10. not parties to action may be made so by notice if connected with original subject of c^use s. 24, p. 17. PERSONAL REPRESENTATIVE. may be made party to action or served with notice in case of death of any of the parties to an action R.P. 17, p. 70. claims by a^inst insolvent estates' s. 25, p. 19. PERSOiNAL SERVICE— See Writ of Summons. PETITION. in cases of appeal not to be necessary, R.P. 50, p. 80. PETITIONER. interpretation of tei-m s. 100, p. 63. claiming any equitable estate or right to have same relief as ought to have been given by Ct. Ch., s. 24, p. lu. PETITIONS. elections, rota of judges for, s. 38, p. 33. to H.M. in council may be transferred to C.A. by order in council, s. 21, p. 12. PETTY SESSIONS— See Inferior < ourts. a-'i eals from, to be determined by D.C., a. 45, p. 36. PLA( E OF TRIAL— See Trial. PLAINTIFF — See also Parties ; Writ of Summons ; Statement ; Statement of Complaint ; Statement of Defence ; Statement of Reply ; Judgment ; Maiiied Women ; Infants ; Pleadings ; Rules of Pleadings, any proceeding between and deft, included in term cause, s. 100, p. 63. inter, retation of term, s. 100, p. 63, when improperly joined may be struck: out, R,P. 9, p. 68. may be aidded but when added must be served with summons or notice, R.P. 9, p. 68. may join two or more defts. where he is in doubt as to persons from whom he is entitled to redress, R,P. 13 p. 69. may join all or any i arties severally or jointly, and severally liable on one contract, R.P. 16, r- 70. may give notice of trial by any mode. R.P. 31, p. 75, see Trial ; Notice, to tUe and deliver ,to deft, printed statement of complaint, unless deft, at apiearance states he does not require it, R.P. 18, p. 71, see Statement of Complaint, deft, to file and deliver to, printed statement of defence, set-off, or counter- claim, R.P. 18, p. 71, see Statement of Defence, to file and deliver to deft, printed statement of reply, R.P. 18, p. 71. counter-claims by deft., R.P. 20, p. 72, see Counter-claim, may unite several causes of action in same statement, R.P. 22, p. 72. may exhibit interrogatories to deft, and obtain discovery, R.P. 25, p. 73. may name place of trial in statement, R.P. '28 p. 74, see Trial, claiming equitable estate or right, to be entitled to such and same relief as ought to have been given by Ct. Ch., s. 24, p. 16. may choose in which Div. he will sue, s. 35, p. 31. PLEADING. interpretation of term, s. 100, p. 63. Digitized by Microsoft® 384 INDEX. PLEADING continued. new rules of pleading substituted for those heretofore used in Ct. Ch., and in Cts. of Common Law, Admiralty and Probate, R-P. 18, p. 71. viz. : — as to 1. pl.'s printed statement of complaint, R.P. 18, p. 71. 2. defts. printed statement of defence, set-off, or counter-claim, R.P. 18, p. 71. 3. pl.'3 printed statement of reply, R.P. 18, p. 71. 4. demurrer to any statement, R.P. 18, p. 71. 5. amendment of any statements, R.P. 18, p. 71. 6. issues, their preparation by parties, and settlement by judge, R.P. 19, p. 71. 7. counter-claim by defendant, R.P. 20, p. 72. 8. judgment to deft, for balance of counter-claim, R.P. 21, p. 72. 9. joinder of several causes of action, R.P. 22-23, p. 72. 10. preliminary questions of law to be raised by Ct., R.P. 24, p. 72. if pleadings disclose documents, same to be produced on notice, R.P. 26, pp. 73-74. PLEAIJING.— The reference on this subject are thus sub-divided :— (1.) generally ; (2.) Statement of Claim ; (3.) Statement of Defence, set off Counter claim ; (4.) Statement of reply ; (5.) Amendment of pleadings ; ' (6.) Demurrer ; (7.) Marriage, death, or Bankruptcy of parties ; (8.) Denial of facts in pleadings ; (9.) Mode of pleading special pleas ; (10.) Pleading matters arising pending the action; (11.) The Probate and Admiralty ; (12.) Joinder of issue and close of pleadings ; (13.) Default of pleading. PLEADING (1.) GENERALLY.— See also Joinder of Causes of Action ; Parties. the rules of pleading in the Schedule to the Judicature Act, 1873, to be sub- stituted for those heretofore used in Ct. Ch., and in Cts. of Common Law, Admiralty, and Probate, R.P. 18, p. 71. where an action proceeds in a district requesting all pleadings and other documents reqmred to be ^ed shall be tiled in the district registay, (X 18, r. 26, p. 231. staibueuib shall be as brief as the nature of the case will admit, R.F. 18, p. 71. . tha Ct. in adjastlng tbe costs of the action shall enquire at the ingtanee of auy party into any uneecessary prolixity, and order tbe costs of such pro- lixity to be bourne by the party ebargeable with the same, B F. 18. p. 71. every pleading shall coatain, as concisely aa may be, a statement of the mao terial facts on wbicb ibe party pleadiDg reliee:, but not tbe evidence by which they are to lie proved, O. 18, r. 1, p. 227. statements to bo divided into paragraphs, numbered consecutively, and each paragraph containing, as nearly as may be, a separate atlegatiou, O, IS, r. 1, p. 227. dates. Bums, and numbers shall be expressed in figures and not in words, O. 18, r. 1, p. 227. Biguatures of couosel shall not be necessary, O. 18, r. 1, p. 227. every pleading may be eitber printed or written if it shall contain less than 3 tolios of 7^ words each (every figure being counted as one word, O. IS, r. 2, p. 227. every pleading shall be printed if it do not contain less than 3 foliea of 72 words each (every figure being counted as one word), O. IS, r. 1. p. 227. every pleading shall be delivered between parties, 0. 18 r. 4, p. 227. every pleading or other docnraant required to be delivered to a party or be- tween parties shall be delivered in the manner now in use to tbe solicitor of every party, who appears by a solioitor, or to the party iJf he does not appear by solicitor, O. 18, r. 3, p. 227. If no appearance has been entered for any party every pleading or other document required to be delivered to a party, or between paries, sball be delivered by being filed with the proper officer, 0. 18, r. 3, p. 127. every pleading sball be marked en the face with (a) the day of the date on which it is delivered. lib) tha reference to the letter and namber of the action. Digitized by Microsoft® INDEX. 385 Pl.E4DlNa— oontinned. (c) the diviaiuD to which the action is aaaigned. fco) the jndge (if any) to which the aoiion is assigned. (a) the title of the action. (e) the description of the pleading. (/) the name and place o( business of the solicitor and agent (if any) de- livenng the same, or (/) the name and address of the party deUveting the same, if he does . not act by a solicitor, 0. 18, r. 4, p. W. neither pariy need in any pleading allege any matter of fact which the law ptesomes in his favour, or as to which the burden of proof lies upon the otiier side, unless the same has been first speciBoally denied, 0. 18, r. 25, p. ^Jl. ie.g. consideration for bill of ixchange. where pi. sae? only on bill and SSf 1°' <""isideration as a substantive ground of claim, 0. 18, r. 25, p. denial to bo ^peoiBo if either party wishes to deny the right of any other party to claim as (a) executor, (S) trustee, whether in bankruptcy or other- wise. Ic) or in any representation, or (d) other alleged capacity, («) or the alleged constitution of any partnership firm, 0. 18, r. 8, p. 228. . no plea or defence shall be pleaded in abatement, 0. 18, r. 10, p. 225. general denial (a) by deft, in his defence of facts alleged by statement of cUim IS) or by a pi. in his reply of facts alleged in a defence by way of conoter claim not to be sufficient but, each party must deal specifically wi'h each allegation of fact of which be does not admit the truth, 0. 18, r. 17, p. 229. every allegation of fact shall be taken to be admitted (except as against an infant lunatic or person of unsound mindX if not denied (a) speci* fically, (6) by necessary implication, or stated to be not admitted in the pleading of the opposite party, 0. 18, r. 14, p. 229. each party in any pleading must 1. allege all such facts not appearing in the previous pleadings as he means to rely on. 2. raise all such grounds of defence or reply as the case may be as if not raised on the pleadings (a) wonld be likely to take the opposite parley by surprise, or (6) wonld raise new issues of fact not arising ont the pleadings, leg. fraud; barred by the statute of limitations; re- leased], 0. 18, r. 15, p. 229. no new ground of claim te be raised in any pleading except by way of au)end- ment, 0. 18, r. 16. p. 229. no allegation of fact inconsistent with previous pleadings of party filing same to be contained in any pleading, 0. 18, r. Id, p. 229, Admiegion qf facU. every allegation of fact in any pleading shall be taken as admitted (except as against infants, lunatics, and persons of unsound mind not so found) if not denied specifically or by necessary implication, or stated to be not ad« mitted in thp pleading of the opposite party, O. IS, r. 14, p. 229^ joinder of issae may, except any facts which the party may be willing to admit. 0. 18. r. 18, p. 230. Assign-mant, creati&n, or devolution. in case of an assignment, creation, or . devolution of any estate or title pendente lite, the action may be.continned by or against the person to or upon whom such estate or title has come or devolved, K.P. 17, p. 70.— Sea also above, "Marriage, death, or bankruptcy." New Assigmnet. no new assignment shall hearafter be necessary or used, 0. 18, r. 11, p. 228i everything which has heretofore been alleged by way of new as^gnment may hereafter be introduced by amendment of the statement ef claim, O. 18, r. 11, p. 228. PLEADIITG.— (2) SriTEMENT OP Claims.— See also Pleading (Generally): - Amendment of Pleadings; Demurrer. pi. shall within such time, and in such manner as shall be {irescribsd by B.C., file and deUver to the deft., after his appearaaoe, a printed statement of Digitized by Microsoft® 386 INDEX. PLEADING— (2) Staiembnt ov Claims.— continnert. compIainti'aDd of the relief or remedy to which he claims to be entitled, BP. 18,p. 71. unless the deft, at the time of his appearance shall state that he does not require the delivery of a statement of complaint, B.P. IS, p. 71. erery statement sf claim shall state (I.) speoiflcally the relief nblcb pi. claims (a) either simply or (!>) alternatirely, and (II.) may also ask for gene- ral relief, 0. 18, r. 5, p. 228. if pl.'s claim be for discovery only, the statement of claim shall show it, 0. 18, r. 5, p, 228. where pi. seeks relief in respect of several distinct claims or causes of com.< plaint foanded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly, 0. 18, r. 6, p. S2S. when pi. proposes to have action tried elsewhere than in Middlesex he shall in his statement of claim name the countv or place in which he proposes that the action shall be tried, B.P. 28, p. 74.— See Trial. Time of Delivery. pi. to deliver statement of claim within 6 weeks from time of deft.'s entering his appearance, O. 20, r. Inc., p. 233. If deft, shall not state that he does net require the delivery, O. 20, r. Is, p. 233. aniess otherwise ordered by Ct. or Judge, O. 20, r. la , p. 223. ' pi. may, if he think &t, deliver a statement of claim with the writ or notice (a) at any time after the issue of the writ of summons, or (b) at any time afterwards, either before or arter appearance, and (c), although the deft, may have appeared and stated that be does not require the delivery of a statement of claim, 0. 20, r. V>. p. 223. in no case shall a statement be delivered more than 6 weeks after the appear- ance has been entered, O. 20. r. lb, p. 234. unless otherwise ordered by the Ct. or Judge, O. 26, r. lb, p. 234. when a pi. delivers a statement of claim without being required to do so, Ct. or Judge may make such order as to costs occasioned thereby as shall seem just, if itappears tbat the delivery of a statement of claim was unnecessary or improper, Q. 20, r. Ic. p. 234, In Pfobate Actions {'C\aMol delivery, pi. shall deliver his statement of claim within 6 weeks (a) from the entry of appearance, or (!i) from time limited for appearance in case deft, has mads default, O. 20, r. 2. p. 234. unless otherwise ordered by Ct. or Judge, O. 20, r. 2, p. 234. pi. shall not be compelled to deliver statement of claim until 8 days after deft, has filed his affidavits as to scripts, where deft, has appeared, O. 29, r. 2, p. 934. In Admiralty Actions in rem, (time of delivery), pi. shall deliver his statement of claim within 12 days from tin appearance of the deft., O. 20. r. 3, p, 234. In specially endorsed writs, a notice to the effect that pl.'s claim is that which appears by the indorae- ment upon the writ to be suScient delivery of statement. O. 20, r. 4, p. 234. • . -1 unless Ct. or jnflge shall order pi. to deliver a further statement. O. 20. r. 4, p. 234. such further statement to be delivered within such time as by such order shall be directed, and if no time be so limited, then within time limited for ordinary statement of claim, O. 20, r. 4, p. 231.— See Time of Delivery supia. notice unnecessary if pi. has dispensed with statement, 0. 20, r. 4, p. 234, nojjjs may be either written or printed, or partly written and partly printed, O. 20, r. 4, p. 234. form prescribed, O. 20, r. 4, p. 234. the form Schedule B, form 3. p. 301. notice to be marked on the face in the same manner as is required in the case of an ordinary statement of claim, O. 20, r, 4, p. 234.— See Pleading Generally. Digitized by Microsoft® INDEX. 387 PLKADING.— (S) Statement of Defence, Set Off or Counter Claims.— See also Pleading (1) Generally ; Pleading (S) Amendment : Pleadlne («l Demurrer. > printed statement of defence, set oflf, or connter claim, ahall be filed and deliTered by deft, to pi. within such time, and in auch manner us sliall ba prescribed by R.O., R.P. 18, p. 71. » pi. may set off or set up by way of counter claim against the claims of tha pi. any right or claim, K.P. 20, p. 72. such set off or coauter claim may sound in damages or not, R P. 20, p. 72. such set off or couoter claim shall have the same effect as a statement of claim in a cross action, so as to enable the Ct. to pronounce a finaL judgment in the same action both on the original and on the cross claim. R.P. 20, p. 72. every deft, to any action need not be interested (a) as to all the relief thereby prayed for, or (l>) as to every cause of acUon included therein, K.P. 23, 5. 72. Ct. or judge may make such srder as may appear just to pjevent any deft, (a) from being embarrassed, or (&) put to expense by beins; re- quired to attend any proceedings in such action in which he may haTO no interest, R.P. 23. p. 72. every statement of couotsr claim, or relief claimed by the deft, in his state- ment of defence sbail state (I) specifically the relief which he claims either (n) simply or (b) in the alternative, and (11) siay also ask for general relief, 0. 18, r. 5, p. 228. when the defL relies upon several distinct grounds of defence, set off or counter claim founded upon separate and distinct facts they shall be stated as far as may be separately and distinctly, 0. 18, r. 6, p. 228. where any deft, seeks to rely upoo anv facts as supporting a right of set off or counter claim he shall state specifically that he does so by way of set off or counterclaim, 0. 18, r. 7, p. 228. deft, in possession by himself, or his tenant in action for recovery of land need not plead^ his title, but it shall be sufficient to state by way of de^ fence that he is so in possession, 0. 18. r. 19, p. 229. unless ilia defence depends on an equitable estate or right, or he claims relief upnu and equitable eroaad against any right or title asserted by the pi., O 18, r. 12, p. 229. he may nevertheless relr upon any ground of defence whioh he can prove, O. 18, r. 12. p. 229. "not guilty by statute" may be pleaded by any deft., notwithstanding anything in E.G., 0. 18, r. 13, p. 229. the plea to have same effect as heretofore, 0. 18, r, 13, p. 229. when pl-aded, no other defence to be pleaded without leave of Ct; or judge, 0, 18, r. 13, p. 229 denial generally by defendant in hie defence of facts alleged by statement of claim not to be sufficient, 0. 18, r. 17, p. 229. facts not deemed specifically or by implication, or stated not to be ada mitted to be taken as admitted (except as against infants, lunatics, and persons of unsound mind not so fouud), 0. IS. r, 14, p. 229. each allegation of fact, if not admitted, must be dealt with specifioally, 0. 18, r. 17, p. 230 Judgment for ialcmce under counter claim - ,. . . when m any action a set off or couuier claim is established as a defence against pl.'s claim, the Ct. may if the balance is in favour of deft, (a) give judgment for the deft, for snob balance, or (S) may otherwise adjudge to th<- deft, such relief as he may be entitled to upon the merits of the case, K P. 21, p. 72. Time/or delivery of defence, . , , j, , t j. „ wneii statemeut of claim is delivered within eight days from such delivery or fri m time limited for appearance whichever shall be last, O. 21. r. 1, p. 235, unless such term is extended by Ct. or judge, O. 21, r. 1, p. 235. where delt. has appeared, and stated he does not require delivery of state- ment of claim, and to whom such a statement is not delivered at any time within eight days after his appearance, 0. 21, r. 2, p. 235. Digitized by Microsoft® 3'88" INDEX. PLEADING— (3) Statement op Defence,— continued. UDiess BQCb time is exteoded by Ct. or judge, O. 21, r. 2, p. 235. vben leave has been given to adeft, to defend nnder R.P. 7— W witbin eneh- time as eball be limited by order giving leave, or (b) if no time is thereby limited then vrithin eight days after order, O. 21, r. 3, p. 235. Extra eosta, occasioned by allegations of fact having been denied or not admittod, which Ct. orjadge shall be of opinion ought to have been admitted, to be snbject to such order of Ot. as shall be jast, 0. 21, r. 4^ p. 235. Third pd/rtie». deft, shall add to the title of bia defence a further title where lie sets up 307 counter claim which raises questions between himself and t he pi. along with any other person or persons, O. 21, r. 5, P. 235. further title to be similar to the title in a statement of complaint, O. 21, r. S; p. 235> farther title to set forth the names of all the persons who, if snch counter claim were to be eaforced by cross action would be defts. to such cross action, 0.21, r.6, p. 235. deft, shall deliver his defence to such of them as are parties to the action, witbin the period within which he is required to deliver it to- the pi., 0.21, r. 5,p. 235. where any such person is not a party to the action be shall be summoned to appear by being served with a copy of defence, O. 21, r. 6, p. 236. such service shall be regulated by the same rules as are prescribed with respect to writ of summons, O. 21, r. 6, p. 236. everry defence so served shall be endorsed, O. 21, r. 6, p. 236. form prescribed, O. 21, r. 6, v. 236. the form schedules, form 4 p. 301. appearance by any person not a deft, to the action who is served with de-- _ fence, and counter claim must appear then as if he bad been served with a writ of summons to appear in an action, O. 21, r. 7, p. 238. a reply by any person named in a defence as a party to a counter claim thereby made, may be delivered within the time witbin which he might deliver a defence if it were a statement of claim, O. 21, r. 8, p, 236. Order to exclude coimter claiiih on the application of the pi. before trial, Ct. or judge may refuse permission , to deft, to avail himself of a set off or counter claim, if in opinion of Ct. or judge (») such set off or counter claim cannot be conveniently dis- posed of in pending action, or (l>) ought not to be allowed, R.P. 20; p. 72. application may be made to Ct. or judge for an o/der that a counter claim set up by a deft, is his statement of defence may be excluded, O. 21, r. 9; such application may be made at any time before reply, by the pi. or any other person named as party to such counter claim, O. 21, r, 9, p. 236. grounds of application to be that the claim raised by counter claim ought not to be disposed of by way of counter claim, but in an inde- pendent action, O. 21, r. 9, p. 236. Ct. or judge may on the hearing of the application make such order as shall be just, O. 21, r.*9, p. 236. Mitt proiate actions. the party opposing a will may with his defence give notice to the party setting up the will, (a) that he merely insists upon the will being proved in solemn form of law, (ft) and only intends to cross-examine the witnesses produced in support of the will, O. 21, r. 16, p. 236. he may thereupon be at liberty to do so, 0. 21, r. 10, p. 236. he shall be subject to the same liabilities in respect ot costs, as he woufd have been under similar circumstances according to the prao tioe of the Ct. ot Probate, O. 21, r. 10, p. 236. PLEADING.— (4) Statement op Reply,— See also Pleading m Generally t Pleading CS) Amendment. , the pi, shall, in such manner as may be prescribed by B.C., file and deliver a printed statement of his reply, It any, to the defence, set oflF, or counter slaim of deft.,.R.P. 18, p. 7a. Digitized by Microsoft® UNBEX. 289 PLEADrNG-(4) STATEMENT OF Reply.— oontinned. Tl^^^S^"7^^ * P.'v'l'"! "P'y.'" ""' '"<='' »"«««* '0 « defence by way of oonnter claim Dot to be deemed snffloient, 0. 18, r, 17 p 229 ' 0. 18 ri?™ "la'o °'' '' ""' "*°'"*°^' """s' be dealt with specifically, facts not deni'ed apeoiflcally or by neoesaary implication, or' stated to be not admitted to be taken to be admitted, except .as Bgatnst infants mnatica, or persons otnnsound mind not so found, O., 18, r 14 n 229 ^ J\u i)^" •>'? ™Ply. if aoy. within 3 weeks after the defence ot'the laat or the defences shall have been delivered, 0. 22, r. 1, p. 236. unless the time shall be extended by the Ct. or judge, O. 22 r. 1 n 237 no pleading subsequent to reply shall be pleaded, O. 22, r. Z, p. 237. except joinder of issue, 0.22, r. 2, p. 237. except by leave of Ct. or judge, O. 22, r. 2, p. 237. every pleading subsequent to reply shall be delivered within 4 days after delivery of the previous pleading, unless time shall be extended bv Ct. or judge, O. 22, r, 3, p. 237. PLEADINGS.— (5) Amendment op Pleadinos. Ct. or judge may at any stage of the proceedings allow either party to alter his statement of claim or defence, or reply, E.P. 18, p. 71, Ot. or Judge may at any stage of the proceedings order to be struck out or amended any matter in snob statements respectively which may be scan- dalons, or which may tend to prejudice, embarrass, or delay the fair trial ot the action, E.P. 18, p. 71. All such ainendments shall be made as may be necessary for the purpose of determining the real questions or question in controversy between the par- ties, R.P, 18. p. 71. ■ Amendment vn&mift leave^^nd counter amendments hereon. pi. may witbout any leave amend his statement of claim once at any time before the exniration of the time limited for reply and before replymg, O. 24, T. 1, p. 237. where no defence is delivered, such amendment may )}e made at any time before the expiration ot four weeks from the appearance of the deft, who ahall have last appeared, 0. 24, r. 1, p. 237. deft, who has set up in his defence any set-off or counter claim may with- out any leave amend such set-off or counter clai^ at any time before ex- piration of time allowed him for pleading in reply and before pleading thereto, O. 24, r. 2, p. 237. in case there be no reply, such amendment may be at any time before the expiration of- 28 days from the filing of his defence, O. 24, v. 2, p. 237. application may be made to Ct, or judge by opposite party to disallow the amendment of pleading without leave, or any part thereof, O. 24, r. 3, p. 237. application to be made within eight days after delivery to him of the amended pleading, O. 24, r. 3, p.237. Ct. or judge (if satisfied that the justice of the case requires it m ay fa) disallow the same or (jb) allow it, subject to such terms as to costs or otherwise as may seem jnst, O. 24, r 3, p. 238. application may be made to Ct. or judge by the other party for leave to plead or amend his former pleading, where any party has amended his pleading, O. 24, r. 4, p. 238. leave to amend to be given within such time and upon such terms as may seem just, O. 24, r, 4, p. 238. Other amendments. application for leave to amend any pleading (except those amendable with- out leave) may be made by either party (a) to Ct., or (6) judge at chambers, or (c) to the judge at' the trial of the action O. 24, r. 5, p. 2^. such amendment may be allowed upon such terms as to costs or other- wise as may seem just, O. 24, r. 5, p. 238. order obtained for leave to amend a pleading^ shall become ipso facto, void (a) if ameBdments is not made within the time limited for that purpose by the order, or (h) if no time is limited then if amendment is mads within 14 days from the date of this order, O. 24, r. 6, p, 238. Digitized by Microsoft® 390 INDEX, MiBADIlfa.— (5) AMENDMENT OF PLEAMNQS.—ContlDnea. I unless the tlm« is extended by the Ct. or jadge, O. 24, r. 6, p. 238. pleadiDg not ba amended while a demurrer to whole or part ot pleading Is pending, O. 26, r. 7, p. 240. nnless by order of Ct. orjodge, O. 25, r. 7, P- 240. no sncb order shall be made, except on payment of costs of demurrer, O. 25, r. 7, 240. When to be printed. amendment must be made by delivering a print of tbe pleading as amended (a) if more than 144 words be required to be inserted in any one place, or (&) if amendments are so numerous, or of such a nature that tbe making them in writing would render tbe pleading difficult, or ioconTenient to lead, O. 24, r. 7, p. 238. in other eases a pleading may be amended by written alteralims in the pleading which has been delivered and by additions on paper, to be interleaved therewith if necessary, O. 24, r. 7, p. 23S. Uarlcvng of amended pleadings. to be markea (a; with date uf order (if any) under which same is so amended and (b) of tbe day on which such amendment is made, O. 24, r. 8, p. 238. Dateof amendment to be marked '' Amended day of ," O. 24. r. 8. p. 239. Delivery of amended pleadinge. To be delivered witiiin the lime allowed for amending the same, O. 24, r. FLEADrNOS.— (6) Demurrer. a demurrer to any statement may bB filed in such manner and form as may be prescribed by ^.C, E.P. 18. p. 71. any party may demur to any pleading of the opposite party, or to any part of a pleading setting up a distinct cause of action, ground of defence, set- o£f, counter claim, or reply, or as the case may be, (>. 25, r. 1, p. S39. demurrer 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 Gt, as t^ainst the patty demurring, O. 25, r. 1, p. 239. Form qf derrmrrer. demurrer shall state 1. specifically whether it is to the whole or to a part, and if ao, to what part of tbe pleading of tbe Apposite party. 2, some ground in law for the demurrer, but the party demnrring-shall n«t, on the argameot of the demurrer, be limited to the ground so stated, O. 25, r. 2, p. 239. form of demurrer provided for, 0. 25, rule 2, p. 239. The form Schedule C. form 1, p. 3U4. demurrer may be aet aside by Ct. or judge with costs if (a) there is no ground, or(b) only a frivolous ground of demurrer stated, 0. 25, r.2, p. 2j9. Delivery. to be in the same manner and within the same time as any other pleading in tbe action, O. 25. r. 3. p. 2,'9. Pleading combined with demu/rrer. demurrer and defence shall be combined in one pleading if deft, desires to demur to part of statement of ohtim, and to put in defence to the other part, O. 25, r. 4, p. 2.39. demurrer and other pleading shall be combined in one pleading if a party entitled to put in a further pleading desires to demur to part of last plead- ing of the opposite party, O. 26, r. 4, p. 239. application to Ot. orjodge for an order for leave to plead as well as demur to the matter demurred to, may be made before demurring if party demurring desires, O. 25 r. 5, p. 240. Ct. or judge if satisBed that there is reasonable ground for the demurrer may (a) make an order accordingly, or (&) may reserve leave to him to plead after the demurrer is overruled, or (c) may make such other Older and upon such terms as may be just, 0, 25, r, 5, p, 24U. Digitized by Microsoft® INDEX. 391 PLEADING.— (6) Demurrer — continnea. Entry ^ demurrer for arguirmnt. Buy be mads by eimer paity immediately when r demurrer either to the whole or part of the pleading is delivered, O. 25, r. 6, p. 240. party so entering shall on the same day give Boti'oe thereof te the other party, O. 25. r. 6. p. 240. entry to be made by delirerlng memorandum to proper officer, O. 25, r. 13, p. 241. form of memorandum provided for, O. 25, r. 13, p. 241.— The form Schedule O, form 2, p. 305. if the demurrer shall not be entered and notice thereof given within 10 days after delivery, and if the party whose pleading is demurred to does nut withia snch time serve an order for leave to amend the demurrer shall be held sufficient for the same purposes and with the same result as to eosts as if it had been allowed on argument, O. 25, r. 6, p. 240. JiTnendment of pleading whiU demurrer pendvng. pieadiug not tu be amunaea wbile a aemurrer to whole or part of pleading is pending, O. 25, r. 7, p. 240. unless by order of Gt. or judge, O. 25, r. 7, p. 240, no such order shall be made except on payment of costsof the demurrer. O. 25, r. 7. p. 240. C 16, r. 14, p. 229. joinder of issue to operate as a denial of every material allegation of fact in the pleading upon which issue is joined, 0. 18, r. 18, p. 230. jalndsr of issue may except any facts which the party may be willing to. Digitized by Microsoft® INDEX. 203 PLEADING.-(8) Denial op Facts in Pleadings, -continued. admit, and shall then operate as a Ueuial of the facta not so admittecl. O. IB, r, lo, p. 230. denUI of facts in the previous pleadings must not bo evasiTO, but to the point of substance, O. 18. r. 19. p. 23l). [e.^r., if it be alleged that A received! a certain sum of money, denial that be received that particular sum shall not bo sufficient, but he must deny that he received that sum, or any part thereof, or else set out how much he received, 0. 18, r. 19, p. 230]. Denial of a matter of fact alleged, with divers circumstances, must not be denial, as alleged, along with those circumstances, but a fair and substan- tial answer must bo given, 0. 18, r. 19, p. 230. bare denial of a contract alleged in any pleading shall be construed as a denial of the making of the oootraot in fact, and not of its legality or its sufficiency in law, whether with relerence to the Statute of Frauds or otherwise, 0. 18, r. 20, p. 230. neither party need in any pleadlns allege any matter of fact which the law presnmea in his favour, or as to which the burden of proof lies upon the other side, unless the same has first beea specifically denied, 0. 18, r. 25, p. 213. le.g. consideration for a bill of exc*hange where the pi. sues only on the bill, and not for the conaideratien as a substantive ground of claim. O IS. T.2,1, r. 2.31. PLEADING.— (9) Mode of Pleading Special Pleas. 1. — Docutnents, wherever the contents of any document are material, the effect as briefly as possible to be sufficient, without setting out the whole or any part thereof. O. 18, r. 21, p. 230. unless the precise words of the document or any part thereof are mate- rial, O. 18, r. 21, p. 230. S. — Malice, fraudvZent intentifm, knowledge, &c. ■'~ wherever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind <^ any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred, 0. 18, r. ^, p. 230. 3.— Notice. wherever it is material to allege notice to any person of amy fact, matter, or thing, it shall be sufficient to allege such notice as d. fact, O. 18, r. 23, p. 231. unless the form or the precise terms of such notice be material, O. 18, r. 23, p. 231. 4. — Implied contract or relation. wherever any contract or any relation between any persons does not arise, from any express agreement, but is to be implied from a series of letters, or conversations, or otherwise from a number of circumstances, it shall be sufficient to allege such contract or relation as a fact, and to refer gene- rally to such letters, conversations, or circumstances, without setting them out in deiaU, O. 18, r., 2^ p. 23it. if person 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, O. 18, r. 24 p. 231. PLEADING.— <10) PLKA.DING Matters Arising. Pending the Action.!' after action brought, but before delivery of statement of defence, and before time limited for doing so, grounds of defence which have arisen, may be pleaded in statement of defence either alone or with other grounds of defence, 0. 19, r. 1, p. 232. after delivery of statement of defence, any ground of defence arising to any set off or counter claim alleged therein by deft., may be ple£^ed by pi. in reply either alone or with other grounds of reply, O. 19, r. 1, p. 232. after delivery of statement of defence or time limited for so doing has expired; deft, may (a) within 8 days after ground of defence has arisen, and (it) by leave of Ot. or judge deliver further defence setting forth grouoda ", p. »■ of cts. t>f Q.B. and C.P. to be first judges of H.C., s. 5, p. 2. and junior Barons not to exceed twelve in number, s. 5, p. 3. pension payable to, to be the amount in future payable to ordinarv iud^ea of C.A., and to judges of H.C., s. 14. p. 8. ^ eligible to suppljr vacancies s. 31 p. 27. manner of appointing, to be followed in appointment of judges of H C ■s. 5 p. 3. ■ '' PURCHASERS. causes as to specific performance of contracts between vendors, and (includ- ing contracts for lease; assigned to 0. Div., s. 34, p. 29. > QUALIFICATION. of judge of H.(!. to be barrister of 10 years standing, s. 8, p. 5. of an ordinary judge of C. A. to be (I. ) same as that heretofore of Lord Justice of C.A. inth. ; or (II.) having been judge of H.C. of one year's standing, s. 8, p. 5. QUARTER DAYS. salaries, allowances, and pensions of judges to be payable on usual, s 14, p 9 QUARTER SESSIONS— See Inferior Courts. appeals from, to be determined by D. < '. of H.C, s. 45, p. 36. determination of appeals from to D.C. to be final, unless special leave to appeal from same to C.A. be given by D.C. before whom appeal from inferior Ct. shall have been beared, s. 45, p. 37. QUEEN S BENCH, LORD CHIEF JUSTICE OF— See Lord Chief Justice of England. QUEEN'S BENCH, COURT OF. united and consolidated with other Cfcs., whole constituting Supreme Ct.. s. 3, p. 2. jurisdiction of, transferred to H.C, s. 16, p. 9. exclusive jurisdiction, civil and criminal of, assigned to Q.B. Div.- s. 34, p. 30. QUEEN'S BENCH DIVISION. to be one of first five Divs. of H.C, s. 31, p. 26. first jiidges of, to consist of (I.) C.J. of England (president) ; (II.) the other judges of Q.B. (if not appointed ordinary judges of C.A.), a. 31, p. 26. assignment of certain busmess to, viz. (I.) business pending in Q.B. ; (II.) causes, civil and criminal, exclusively cognizable by Q.B., s. 34, p. 30. judges 01, to be five in number, s. 31, p. 27. deficiency in number of, to be supplied by appointment under H.M.'s Royal Sign Manual, s. 31, p. 27. busiaess belonging to Ct., which, according to practice of Superior Cta of C.L. would be disposed of, Ct. sitting in banc, to be transacted by D.C's., s. 41, p. 35. Digitized by Microsoft® 400 INDEX. QUEEN'S BENCH DIVISION— continued. , D.C.'s for business of. s. 41, p. 34. nothing in E.C. to affect practice and procedure in proceedings, in Ct. side of Q.B. Div., 0. 56, p. 285. QUBEN'3 REMEMBRANCER— See also Officers, to be attached to Supreme Ct,, s. 77, p. 50. to have same Tank, salary, and pension, s. 77, p. 51. QTTESTIONS. of fact, report of referee on, equivalent to Verdict of jury, a. 58, p. 42, see Referee, as against third parties, R.P. 12, p. 69. real in controversy, to be determined, R.P. 18, p. 71. of fact, different in same action may be tried by different modes, times, and places, R.P. 32, p. 76, see Trial, of law reserved in criminal trials, s. 47, p. 37, see Crown Cases Reserved, O. 30, p. 249. , of law may be raised previous to trial of questions of fact, 1LF. 2A, p. 72. — See special case. RAISING. of positions or other charges on land, causes referring to, assigned to C. Div., s. 34, p. 29. EAITK. of ex-offico judges of C. A. to be in order of present precedence, s. 10 p. 6. of ordinary and additional judges of C.A., if Peers or Privy CounciUors, to he in order of present precedence, s. 10, p. 6. ' of other judges of C.Ji. to be in order of appointment, s. 10, p. 6. of judges of H.C. (not judges of C.A.) to be next after judges of C.A., and among themselves in order of their appointments, s. 10, p. 6. of existing judges appointed judges of H.C. or ordinary judges of C.A. to remain as if Act had not passed, s. 11, p. 6. REAIi ESTATES. causes as to specific performance of contracts between vendors and purchasers of .(including contracts for leases), assigned to C. Div., s. 34, p. ^. causes as to partition or sale of, assigned to C. Div., s. 34, p. 30. RECEIPT OP EXCHEQUER. office of, not to be affected by Act, s. 97, p. 62. RECEIVERS. may be appointed by interlocutory order, s. 25, p. 23. RECOGNITION. of legal claims, demands, estates, rights, duties, titles, obligations, and liabilities (subject to provisions for recognition of equitable estates, &c.), s. 24, p. 19. REOOED. error of law apparent on, only cause for appeal in Crown Cases Reserved, s. 47, p. 37, see Crown Cases Reserved, to be transmitted by Registrar of Inferior Ct. to H.C., or transfer of cause, s. 90, p. 60. H.C. to be a superior Ct. of, b. 16, p. 9. RECORDS. jurisdiction of M.E. in relation to, not transferred to H.C, s. 17, p. U. RECOEDS AND WEITS. clerks of, of any Ct. transferred to be attached to superior Ct., s. 77, p. 51, see Officers. RECTIFICATION. of deeds and other written instruments, causes as to, assigned to 0. Div., s. 34, p. 29. REDEMPTION. of mortgages, causes referring to, assigned to C. Div., s. 34, p. 29. REDRESS- See EeUef. REDUCTION. of divisions or number of judges may be made by order in oouooll, s. 32, p. 28. Digitized by Microsoft® INDEX. 401 REFEREES (GBNERALLY>-aee Referee Official ; Referee Special ; Trial to be deemed officers of the Ct., s. 58, p. 42. to liave such authority as shall be prescribed by R.C., and subject thereto by Ct. or judge, s. 58, p. 42. report of, upon any question of fact, unless set aside by Ct. be equivalent to verdict of a jury, s. 58, p. 42. Ct. or judge to have (in addition to other powers) powers as to proceed- ings before Referees, and their reports given by Common Law Procedure Act, 1854, s. 59, p. 42. may (subject to order of Ct. or judge) hold Ct, and adjourn where most convenient, and have view or inspection with or without his assessors wluch he may deem expedient, R.P. 34, p. 75. shall (unless otherwise directed by Ct. or judge) hold trial in open Ct., de die in^diem., as actions tried by jury, R.P. 34, p. 75. may before conclusion, or by report, submit any question for decision of Ct., or state facts specially with power to Ct. to draw inferences when order to be entered as Gt. dii'ects, R.P. .SS, p. 75. Ct. may require explanation or reason from, R.P. 35, p. 76. Ct. may remit action, or any part, for re-trial or further consideration to same, or other, R.P. 35, p. 76. preliminary questions of law may be tried before reference to, R.P. 24, p. 72. the evidence shall be taken before the 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 adnait as trials before a judge of H.C., O. 32, r. 25, p. 256. but not so as to make the tribunal ef the referee a public Ct. of Justice, O. 32, r. 25, p. 257. subject to any order to be made by the Ct. or judge ordering the same, O. 32, r., 25, p. 256 reference shall have the same authority iisi the conduct of any reference or trial as a judge of H.O. when presidiBg at any trial before him, O. 32, r. 26, p. 257. subject to any order to be made by the Ct. or judge ordering the same, O. 32i r. 26, p. 257. nothing in R.C. shall authorize any referee to commit any person to prison or to enforce any order by attachment or otherwise, O. 32, r. 27, p. 257. JREFEREE, 0EFICL4I,— See Referees, Referee Special ; Trial. to be attached to Supreme Ct. as permanent officers, s. 83, p. 55. number, qualifications, and tenure of offices of, to be determined by L.C., with concurrence of majority of Presidents, of Divisions, of H.C. (of whom L.C. J. of England to be one), and with sanction of Treasury, s. 83, p. 56. to perform duties in London or country, directed by order of H.C. or C.A., s. 83, p. 56. travelling expenses incurred by, to be paid by Treasury out of moneys provided by Parliament, s. 83, p. 56. salaries of, to be out of money provided by Parliament, as may be deter- mined by Treasury, with concurrence of Ld. Ch., s. 85, p. 57. pensions of, s. 85, p. 58. one of the modes of trial to be before, with or without assessors, R.P. 30, p. 75. any question may be referred by Ct. or judge for enquiry, or report to, s. 56, p. 41. reference to, to be subject to, R.C., s. 56, p. 40. no reference in any case where right now exists to h^-ve particular, cases submitted to verdict of jury, s. 56, p. 40. no criminal proceeding by the Crown to be referred to, s. 56, p. 41. report of, may be adopted wholly or in part, s. 56, p. 41. report if adopted may be enforced as a judgment by the Ct., s. 56, p. 41. if all parties consent any cause or matter, may be ordered by Ct. or judge, tried by, s. 57, p. 41. 2. Digitized by Microsofi® 402 INDEX. KEFBREE OFFICIAL— continued. _ , any qiwstisn of iact or account in cause, or -matter^ requiring proloB^M examination of documentSj or accounts, orany scientific or local investiga- tion, may be ordered by Ct. or judge, to be tiied by, s. 57, v.. 41- Ct. or judge to determine terms of compulsory reference to, s. 57, p. 41. .such trials before, to be. conducted as prescribed by B.C., and subject there- to as. directed by Ct. or judge, si 57, p. 41. KEFBREB, SPECIAL— See Referees, Referees Official ; Trial. one of the modes of trial to be before, with or vritbout assessors, R.P. 30, p. 75. any question may be referred by Ct. or judge Jor inquiry, and repcirt to, a. 66, p. 41. reference to, to be subject to R.C., s. 56, p. 40. no reference in any case where right now exists to have particular; cases sub- mitted to verdict of jury, s. 56, p. 40. no criminal proceeding by the Crown to be referred to, s. 56, p. 41. report of, may be adopted wholly or in part, s, 56, p. 41. report if adopted, may be enforced as a judgment by the Ct^ ». 56, p. 41. remuneration to be paid to, to be determined by the Ct., s. 56, p. 41. '^ ,if all partie? consent any cause or matter, may be ordered by Ct. or judge, to be tried by, s. 57, p. 41. any question of account, or fact in cause, or matter requiring prolonged examination of documents, or accounts, or any scientific or local investiga- ,tion, may be ordered by Ct. or judge, to be tried by, to be agreed on by " the parties, S. '57, p. 41. Ct. or judge to determine terms of compulsory references to, s. 57, p. 41. agreed on, to have same powers and duties, and to proceed, insane manner, as official referee, s. 57, p. 41. - such trials before to be conducted as prescribed' by R.C., and subject there- to as directed by Ct. or judge, s. 57, p. 41. KEGISTRARSv-See also Officers. of Cts. transferred to be attached to Superior Ct., s. 77, p. 50. of inferior Lts. to transmit record to H.C. when cause is transferred, s, 90, p. 60. ™. » of District Registries, see District Registrars. BEGISTRIBS, district— See District Registries. RB-HEARING. of appeals before a greater number of judges, s. 53, p. 39. all ai peals shall be by way of, s. 50, p. 38. i REJECTION. of evidence not to be ground of new trial, unless substantial wrong occasioned^ R.P. 48, p. SO. RELEVANCY. of interrogatories, R.P. 25, p. 73, see Interrogatories ; Costs. ■ RELIEF OR" REMEDY. nature of to be endorsed on writ of summons, R.P. 2, p. 65. may be given in inferior Cts., up to its jurisdiction asamply as H.C, », 89, p. 59. not to be given by inferioi: Cts, beyond its jurisdiction, but cause may be transferred to H.C, s. 90, p. 60. printed statement of complaint, to contain also statement if desired, R.P. 18, p. 71, see Statement of Defence. where deft., not interested as to relief prayed for, R. 23, p. 72. to pL, claiming equitable estate or rirfit to be given as fully as ought to have been givenby Ct. Ch., s. 24, p. 16. to deft., to be such as a deft, might ha»e obtained against pL by a suit for the purpose, s." 24, p. 17. lb deft., to be given against any other rersoB, party to action or not, if served with notice if connected with original subject of the cause, s. 24, p. 17. all relief to which all parties are entitled to be granted so that all matters may be determined and multiplicity of prooeeffings may be avoided, s, 2A, REMEDY— See Relief: Digitized by Microsoft® INDEX. 403 RSMOTAL. of judges to be by H.M. on address by both Houses of ParHsment, b. 9, rf causes from inferior Cts. to H.C., see Inferior Cts. EEPTTS. mortgagor in possession -without notice from mortgagee to take possession or rents, may sue in his ovn name for, exceut in relpect of lease made.by mortgagor jointlymth some otlier person, s, 25, p. 20. ' SEPLY— See Statement of Kr-ply. pi. to file and deliTer printed statements of, E.P. IS, p. 71. statements of, may be altered and amended, E,P. 18, p. 71. where statement of insutiicient judges may direct issues to be prepared. R.P. 19, p. 71. *■ 1- ~. REPORT. of referee, as to special facts, R.P. 35, p. 75, see Referee. REPRESENTATION. . of parties having same interest, R.P. 10 p. 68. REPRESENTATIV'E— See Personal RepresentatiTe. RESIGNATION. of judges to be in writing addressed to M. Ch., without any deed of smTender, s. 7, p. 5. RESTRAIN. V t. not to, by prohibition or injimction, s. 24, p. 18. application to, proceedings may be made by motion in a summary way, a. 24^ p. 18, RESTRI( TIONS. on new triaJs, R.P. 48, p. 80. RETIREMENT. of existing judges, service ia H.C or C.A, to be deemed continuation of service in calculation for pension, 5. 11, p. 7. EE-TRIAl. by referee may be ordered, R.P. 35, p. 76, see Referee. REVENUE. COURT OF. jurisdiction of Ex. as transferred to H.C., s. 16^ p. 9. RIGHTS — See Equitable Estates, Rights, &c. ; Xe^ Estates, Rights, &c' ROLLS <'OURT jurisdiction of, transferred to H.C, -s. 16, p. 9. ROLLS, MASTER OF -See Master of the Rollf ROTA, of judges for election expenses, s. 38, p. 33. ROYAL SIGN MANUAL. H.M. may appoint additional judges of C.A. by, s. 6, p. 4 RULE. 'in pending matters may be made, &c., as if Act had not passed, if causa fully heaj-ed, s. 22 p. 14. perfected may be executed, amended, and discharged by H.C. and C.A., • -8.22, p. 14. persons entitled by attachment to enforce, may apply by motiou in a summary way to restrain proceedings, s. 24, p. 18. RULES— See Rule ; Rules of Admiralty i.t. ; Rules of .Bankruptcy Ct, ; General Rules for Ecclesiastical Causes ; Rules of Common Law ; Rules of Law ; Rules of Equity ; Rules for the 'Concurrent Administration of Law and Equity ; Rules of (,t. ; Rules 0/ Pleading ; Rules of Evidence ; Rules of Inferior Cts. ; Rules of Probate Ct. ; Rules of Procedure. RULES OP ADMIRALTY COURT. as to collisions at sea where both ships in fault, to prevail over Rules of C.L. . •■ of existing judges, appointed judges of H. 0. or ordinary judges of C. A., to lemaia as if Act bad cot passed, s, II, p. 6. Digitized by Microsoft® INDEX. 407 SALARIES— coniaiiued o£ future judges, s. 13, p 7. no salary to be payable to ordinary judges of C.A., S. 13 p. 8 of judges to be payable out of ConsoUdated Funds, and to be paid on usual quarter days, 3. 15, y. 9. ^ of officers, provisions for abolition of, in certain cases, s. 32 p. 28 _ of S.C. to be same as if Act had not passed, s. 77, p. 51. increase of, for increase of work, s. 77, p 52 reduction of, s. 77, p. 52. of existing officers of judges, s. 77, p. 62. andrpension of officers generally, s. 85, p. 57. SALE. of goods, waies, and merchandise of a perishable nature may be ordered. R.P. 44, p. 78. and distribution of proceeds of property, subject to lien or chirge, causes as to, assigned to (J. Div., s. 34, p. ffl. causes as to partition or sale of real estates assigned to C. Diy., s. 34, SAMPLES OF GOODS. may be taken under order of Ct. for evidence, R.P. 45, p. 78. SAVING CLAUSES. ' *^ as to rights and obligations of existing judges, s. 11, p. 6. as to existing procedure of Cts. when not inconsistent with Act, E.P or R.C., s. 73, p 48. as to circuits of the judges^ s. 93, p. 61. as to issue of any Commissions of Assize, Nisi Prius, Oyer and Terminer. Gaol Delivery, as other Commissions for discharge of Civil or Criminal business on circuit, s. 93, p. 61. SB to patronage vested in any judges going circuit, s. 93, p. 61. as to position, salaries or duties, of any officers transferred, who perform duties in relation to civil or criminal business transacted on circuit, s. 93. p. 61. ' as to Ld. Ch. and his officers, s. 94, p. 61. as to Ch. of County Palatiue of Lancashire, s. 95, p. 61. as to Ch. of Exchequer on appointment of Sheriffs, s. 96, p. 61. as to Ld. Treasurer and office of Receipt of Exchequer, 3. 97,, p.. 62. as to mode of giving evidence, rules of evidence, and law relating to juries and jurymen, s. 72, p. 47. SCANDALOUS MATl'ER. may be ordered to be struck out of any statement, R.P; 18, p. 71. SCHEDULE. rules of procedure iu to he R.C., s. 69, p. 46. to regulate procedure tlU changed by R.<;., s. 69;. p.. 47; to be taken as part of Act, s. 69, p. 46. SCIENTIFIC INVESTIGATIONS. cases requiring may be tned before referee, a. 57, p. 41. SCOTLAND. persons who have held office of Lord Justice General or Lord Justice Clerk in, eligible as additional judge of C.A., s. 6, p. 4. SEA. collisions at, damages by, rules of law as to, s. 25, p. 22. SEAL OF UNITED KINGDOM— See Great Seal ; Lord Keeper of Great SeaL SEALS. of district registries, s. 61, p. 43. documents sealed with, to be received as evidence in United Kingdom, s. 61, p. 4.3. SECRETARIES— See also Officers. fo transferred Cts. to be attached to Supreme Ct., s. 77, p. 50. SECURED CREDITORS— See Creditors. SECURITY FOR COSTS. ', married woman may sue or defend witliout husbands or next ^iend on giving R.P. 15, p. 70. in case of appeal, R.P. 57i p. 82. Digitized by Microsoft® .o8 INDEX. BQUBSTRATION (WRIT OF) writ of 9eg[uestration may Issue (a) where any person is by any judgn>ent directed to pay money into Ct., or (2>) to. do any other act in a limited time, and after due service of such judgment, refuses or neglects to obey the same according to the exigency thereor, O. 42, p. 271. the person prosecuting judgment sbalT, at the time, limited for the performance thereof be entitled to issue writ, 0. 42, p. 271. writ to issue without any order for that purpose, O. 42, p. 271. writ to issue against the estate and effects of such disobedient person^ O. 42, p. 271. writ t^ have same effect as a writ of sequestration in Chancery has heretofore had, O. 42, p. 271. proceeds of sequestration may be dealt with in the same manner as the proceeds of writs of sequestration have heretofore been dealt with by the Ct. Gt., O. 42, p. 271. EQUBSTKARI FACIAS KB BONIS BCCLBSIASTICIS.— See Writs in Aid. ERJEANT-AT-LAW. degree of, not required to be taken by judge of either Ct., s. 8, p. 5. note on the degree of serjeant-at law, p. 167. BRVICE. by existing judge as j;udge in H.C. or C. A., to count in calculating time for pension, s. 11, p. 7. by judge of H.C. or ordinary judge of C.A. for 15 years, to entitle to pension,, s. 14, p: 8. ERVIOE OF NOTrCK— See Notice. BRVICB OF WRIT -See Writ of Summons. ET-OFF. may be directed in endorsement of pis. particulars, R.P. 7, p. 67. defts. statement of defence to contain statement of any set-off, R.P. 18, p. 71, see Statement of Defence, pis. statement of reply, to reply to such,-^Il.P. 18, p. 71. may include any set-off or Counter-claim, whether it sound in damages or not, R.P. 20, p. 72, to have same effect as a statement of claim in cross-action, R.P. 20, p. 72. Ct. may disallow, if it cannot be convenieiitly disposed of, in pendiiu; action, R.P.21,p.72. , f ^k judgment in case of,, may be given as a balance in favour of deft., R.P. 21, p.' 72. ;etting aside. of deeds and other written instruments, cause as to, assigned to C. Div... s. 34, p. 29. lETTLING ISSUES OF FACT. if parties differ in, judge may settle same, R.P. 19, p. 71. IHARBS.-See Stock Distringas. IHBRIFFS. order of appointment of, to be observed iu Bx. Div. of H.C. as heretofore observed in Ct. of Ex., s. 96, p. 61. IHIPS. damages by collision of, at sea where both in fault, R.C. of Admiralty to. prevail over those of Cts. of Common Law, s. 25, p. 22. arrest or detention of, proceedings for, may be taken in D.E., s. 64. d. 44 IHORT TITLE— See Title. > > f IHOW CAUSE. on appearance, to writ specially endorsed, pL by affidavit may call on deft, to, why final judgment should not be signed, E.P. 7. p. 67. IGNING JUDGMBNT-^ee Judgment. IMPLE CONTRACT DEBT. action on, writ may be specially endorsed, E.P. 7, p. 66. ITTING. .- -. .f no judge capable of sitting in House of Commons, s. 9, p. 5. ITTINGS— See also Distribution of Business ; London and Middlesex. in London and Middlesex for trial by jury, held continuously, aubiect to vacations, s. 30, p. 26. Digitized by Microsoft® INDEX. 409 SITTINGS— continued in London and Middlesex, lists for, to be prepared without reference to div. ofCt. to which action attiwlied as prescribed by R.C., E.t'.29,p.74. for trial by jury in London and Middlesex, to be continuous, s. 30, p. 26. in London and Middlesex and on circuit,, to be before judges pf Q.B.) C.P., and Ex. Divs., but judges niay_ agTee amongst thems^ly^s, and ordinary judges of C.A., judges of Ch. Div., Serjeauts-at-Law, and Queen's Counsel, may be included, s. 37, p. 32. may be held at any time or place, s. 26, p. 23. in vacation, s. 28, p. 24. SITTINGS IN BANC. assignment of causes and matters which heretofore would have been disposed of by Ct. sitting in Banc, s. 41, p. 34. of Ct. may be held at any time, subject to R.C., a. 26, p. 23. shall be provided for by II.C., s. 68, p. 45. during vacation in London and Middlesex, provision for, 3. 28, p. 24. SITTINGS AND VACATIONS. the sittings of the C.A. and the sittings in London and Middlesex of the H.C. shall be 4 In every year, viz. : — The Michaelmas sittings, the Hilary sittings, the Easter sittings, and the Trinity sittings, 0. 55, r. 1, p, 282, the sittings shall commence as follows (O. 55, r. 1, p. 282) : — Sittings Commmence Terminate. Michaelmas 2nd November 21st December Hilary 11th January Wednesday before Easter Easter Tuesday after Easter week Friday before Wliit-Sunday Trinity Tuesday after Whitsun week 8th August the vacations to be observed in the several courts and officers of the Supreme Ct. shall be four in every year, viz. :— The Long vacation, the Christmas vacation, the Easter vacation, and the Whitsun vacation, 0. 55, r.,2, p. 283. the vacations shall commence and terminate as follows (0. 55, r. 2, p. 283):— Vacation Commence Tesminate. The Long 10th August 24th October Christmas 24th December 6th January Easter Good Friday Easter Monday Wiitsun Saturday before Whitsunday Tuesday after Whit Sunday the days of the commencement and termination of each sitting and vaca- tion shall be included in such sitting and vacation respectively, O. 55, r. the" several offices of the Supreme Ct. shall be open on every day of the year except Sundays, Good Friday, Monday and Tuesday in Easter-week, Whit Monday, Christmas Day and the next following working days, and all days appointed by proclamation to be be observed aa days of general fast, humiliation, or thanksgiving,' O. 55, r. 4, p. 283. SOLICITOE. . -J -t « of deft, by acceptmg service and entering appearance, avoids necessity ot personal service, R.P. 4, p. 66. „„„„„„ , may inspect documents on notice, E.P. 26, p. 73, see Documents. SOLICITOES— See also Commissioners to administer Oaths. to be styled Solicitors of Supreme Ct., s. 87, p. 59. jurisdiction of Ct. over, s. 87, p. 59. what privileges and obligations, s. 87, p. 59. ^^^powOT oi^Ct to order questions of law to be decided by, before trial of question of fact, K.P. 24, p. 72. ..... „ . the parties may concur in statiig questions of law arising m the action m the form of a special case for the opinion af the Ct., O. 30, r. 1. P- 249. the parties may after the writ of summons has been issued, O. 30, r. 1, V 249 every special case shaU be divided into paragraphs, numbered conseontiyely, to state'such facts and documents as may be necessary to enable Ct. to decide the questions raised thereby, 0. 30, r. 1, p. 219. Digitized by Microsoft® 41 INDEX. SPECIAL CASB.— continued. . " S upon the arguments of the case, the Ct. and the parties shall be at libertj to refer to the whole contents of such documents, and the Gt. 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 liave been drawn tlierefrom if proved at a trial, O. 30, r. 1, p. 249. every special case shall be printed by the pi. and signed by the several par- ties or their solicitors, O. 30, r. 2, p. 249. to be filed by the pi., O. 30, r 2, p. 249. printed copies for the use of the judges shall be delivered by the pi., O. 30, r. 2, p. 249. no special case to be set down for argument without leave of Cfc. or judge where a married woman, infant, or person of unsound mind is party to the action, O. 30, r. 3, p. 249. application for leave must be supported by sufficient evidence that the statements contained in the special case are true so far as the same affect the intere-t of such married woman, infant, or person of un- sound mind, O. 30, r. 3, p. 249. either party may enter special case for argument by delivering to the proper officer a memorandum of entry, O. 30, 'r. 4, p. 260. form of memorandum provided for, O. 30, r. 4^ p. 250. the form schedule B, form 13, p. 304. in case married woman, infant, or person of unsound mind is a party, a copy of the order giving leave to enter same for argument must be producpd, O. 30, r. 4, p. 250. IPECIAL INDORSEMENT— See Writ of Summons ; Appearance. IPBCIAL ORDER. may be issued as to time, within which notice of cross-appeal shall be given, R.P. 53, p. 81. IPBCIAL REFEREE— See Referee ; Referee, Special. IPECIPIC PERFORMANCE. causes as to, of contracts between vendors and purchasers, including con- tracts for Ifeases assigned to C.Div., s. 34, p. 29. STAMPS. fees in D.R. to be taken by, s. 63, p. 43. Cts. of Justice (salaries and funds) Act, 1869, application of provisions as to rayment of fees by stamps generally, s. 63, p. 43. STANNARIES. jurisdiction of Lord Warden of, transferred to C.A., s. 18„ p. 11. 5TATBMENTS.-See Pleadings (1) Generally; (2) Statement of Claim; 1 (.3) Statement of Defence, Set-otf , or Counter-claim ; (4i Statement of Reply. STATUTE— See also Act of Parliament. duties imposed by(not incident to administration of justice) to be performed" by every judge of H.C., s. 12, p. 7. jurisdiction given by any, to any judge of Ct. transferred to H.C., so trans- ferred to H.C , s. 16, p. 10. powers given by any, to Ct. judges or judge transferred to H.C, to be included in jurisdiction transferred to H.C, s. IB, p. 10. contract on, where fixed sum is sought to be recovered, writ may be specially endorsed, R.P. 7, p. 66. STATUTES AT LENGTH. Supreme Court of Judicature Act (36 and 37 Vict., c. 66), pp. 1-83. Croiyn Cases Reserved Act, 1848 (11 and 12 Vict., c. 78), pp. 84-86. Promissory Oaths Act, 1868 (31 and .32 Vict., c. 72), pp. 9;J:98. Courts of Justice Act, 1869 (32 and 33 Vict., c. 91), pp. 103-127. Judicial Committee Act, 1871 (34 and 35 Vict., c. 91), pp. 128-129. Trustee Relief Act, 1847 (10 and 11 Vict., c. 96', pp. 130-131. Trustee Relief Act, 1849 (12 and 13 Vict., c. 74), p. 132. STATUTES, PART OF, AT LENGTH. Common Law Procedure Act, 1852 (15 and 16 Vict., c. 76) pp. 99-100. Common Law Procedure Act, 1854 (17 and 18 Vict., c. 125), pp. 87-90. County Courts Act, 1867 (30 and 31 Vict., o. 142), pp. 91-92. Parliamentftiy Elections Act, 1868 (31 tod 32 Vict.» o; -135), pp. 101-102. Digitized by Microsoft® INDEX. 41 r STAY OF PROCEEDINGS. may at any time be directed, s. 24, p. 18. any person, wliether party or not, may at any time apply for, by motiom in a summary -way, s 24, p. 18. appeal shijl not operate as a, R.P. 58, p. 83. which decision, of preliminary questions of law, may render unnecessary, R P. 24, p. 72 STIPULATIONS. as to time or otherwise, not of the essence of contracts, rules of Cts. of Equity to be followed as to, s. 25, p. 23. STOCK AND SHARKS. an order charging stuck or shares may be made by any D.C, or by any judge, and the prf^ceeding* for obtMining sucb order shall be such as are directed. and the effect shall be such as is provided by 1 and 2 Vict., c. 110, 'S.s, 14, and 15, and 3 and 4 Vict., c. 82 s. I, O. 41, r. 1, p. 270. any peison claiming to be interested in any stock transferable ;t the Bank of E iglaiui, standing in the name of any other person, may sue out a writ uf distringas pui-suant to the Statute 5 Vict., c. 8. 0. 41, r. 2, p. 270. writ of distringas to be -issued out of any office of the H.O., in London, wb*»re writs of summons are issued, O. 41, r. 2, p. 270. STRIKING OUT. matter in statements, scandalous, attending to prejudice, embanass or delay fair trial, R P. 18, p. 71. STYLE. oi judge of High Ct. in his api'ointment, s. 5, p. 3. SUBSTITUTED SERVICE— See Writ of Summons. SUBSTITUTION OF PARTIES. orders as to may be made at any stage of proceedings, R P. 14, p. 69. SUCCESSOR IN INTEREST. may be made party or be served with notice in case of marriage, death, or bankruptcy of any party to an action, R.P. 17, p. 70. SUFFICIENCY. of answer to interrogatories to be determined by Ct., R.P. 25, p. 73, see Interrogatories ; Costs. SUIT-r^ee also Action. included in term cause, s. 100, p. 63. interpretation of terra, s. 100, p. 63. for possession of land by mortgagors, s. 25, p. 20. SUITS. ^ ^ ^ _^^ hitherto commenced by bill or information in Ct. Ch. to be neneeforth instituted by action in H.C , R P. 1, p 65 SUMMARY— See Motion in a Summary Way ; Interrogatories. SUMMONS— See also Writ of Summons. on persons added as defts , to be served as prescribed by B.C., B.P. 9, p..68. names of co-partners suing or being sued, as firm may be applied for by, in chambers, R.P. 11, p. 69. SUNDAY. offices not to be opened on, O. 56, r. 4, p. 283. Sundry not to be reckoned in computation of limited tmie of less than six days, O. 51, r. 2, p. 279. SUPERIOR COURT OF RECORD. H.C to be a, s 16, p 9. SUPERIOR COURTS AT WESTMINSTER. persons who have been judges of, eligible as additional judges of C.A., s. 6, SUPREME COURT OF JUDICATURE— See also Contempt; Council of Judges ; Books ; Solicitors ; Officers. constitution and judges of (Parti), pp. 1-9. _. . . . existiiig Superior Cts. Ch., Common Law, Admiralty, Divorce, Protate, and Baiikruptcy, to be united and to constitute the Supreme Ct , s. 3, p. 2. to consist of two permanent Divs , viz :— (I.) H C , ^.) C.A., s. i, p. 2. precedence of judges in, 8. 10, p. 6. Digitized by Microsoft® 412 INDEX. SUPRESE court op judicature— continued. total number of judges of, cannot be increased or reduced by Order in Coun- cil, s. 32, p. 28. ■vrith concurrence of majority of judges present at council, may tiiake, alter, or annul R.C., s. 74, p. 48 transfer of books and papers to, s 92, p 60 persons who have been judge of, eligible as additional judges of C.A., s 6, p. 4, SURRENDER. deed of, unnecesary on resignation of judge, s. 7, p. 5. TENANT EOR LIFE. without impeachment not to have legal right to equitable waste, Unless intention expressly appears, s. 25, p. 20- TENURE OP OPPIGB. of all judges of H.C. or C. A. to be for life, subject to removal on address by both Houses, s. 9, p. 5. to existing judges to remain, as i^ Act had not passed, s. 11, p. 6. TERMS. interpretation of, s. 100, p 62. interpretation of, in R.C., O. 57, p. 285. interpretation of terms, "writs of execution," and "issuing execution against any person," O. 37, r. 6, p. 263. abolition of, as divisions of the year for sittings, but not as limit of time, s. 26, p. & H.C. and C.A. and all judges to discharge at anytime duties required to be discharged in, s. 26, p. ^. on which appeals from H C. to C.A. allowed to be regulated by R.C. and orders of Ct., s 19, p. 12. TERMINER— See Oyer and Terminer. THIRD PARTIES- See Parties. TIME. rule of Cts. of Equity to be followed as to stipulations in contracts as to, not being deemed of the essence, s 25, p. 23. as to limit of, in appeals, how to be calculated, R P. 57, p. 82, months shall mean calasdar months, whereby R.C. or by any judgment or order given or made after the commencement of the Act, the time for doing any act or taking any proceeding is limited by months, 0. 51, r. 1, p. 279. unless expressed to be lunar montiis, O. 51, r. 1, p. 279. Sunday, Christmas Day, and Good Friday shall not be reckoned in the com- putation of any limited time, O. 51, r. 2, p. 279. limited time to mean where any limited time less than 6 days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, O. H., r. 2, p. 279. Sunday or other day on which the offices are closed not to be counted where the time for doing any act or taking any proceeding expires thereop, and by reason thereof such act or proceeding cannot be done or taken on that day, 0. 51, r. 3, p. 279. 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 opened, O. 51, r. 3, p. 279. during long vacation no pleadings shall be amended or delivered unless di- rected by Ct. or judge, O. 51, r. 4, p. 279. the time of the long vacation shall not be reckoned in the computation of the times appointed or allowed by R.C. tor Sling, amending, or deliver- ing any pleading, unless otherwise directed by Ct. or judge, O. 51, r. 5, p. 259. Ct. or judge shall have power to enlarge or abridge the time appointed by R.C. or tixcd by any order enlarging time for doing any act oi taking any proceeding, 0. 51, r. 6, p. 279. abridgement or enlargement to be upon such terms, if any, as tlie justice of the case may require, 0. 51, r. 6, p. 279. Digitized by Microsoft® INDEX. 415 TIME— continued. any such enlargement may be ordered, although the application for the same is not made until after the expiration ol the time apoointed or allowed, O. 51, r. 6, p. 279. TITLE. of Judicature Act, 1873, p. 1. C.L.P.A , 1852, p. 99. C,L.P.A., 1854, p. 90. Promissory Oaths Act, 1868, p. 93. Cts. of Justice Act, 1869, p. 103. Judicial Committee Act, 1871, p. 128. documents relating to parties need not be produced, R.P. 26, p. 73. in case of an assignment, creation or devolution of any title predente lite, action may be continued by or against the person to or upon whoba such title has come or devolved, R.P. 17, p. 70. of L.C. J. of England, M.E , L.C.J, of O.P., andL.C.B. and their successors, to be the same as heretofore, s. 5, p. 3. of existing judges, appointed judges of H.C., or ordinary judges of C.A., to remain as if Act had not passed, s. 11, p. 6. TITLES— See Equitable Estates, Titles, &c. ; Legal Estates, Ac. TRANSFER -See also Officers ; Transferred Causes. of jurisdiction of various Cts. to H.C., s. 16, p. 9. of books and papers to S.C., s. 92, p. 60. of proceedings from inferior Cts., s. 90, p. 60. of cause, power of judge to order, s. 90, p. 60. of pendiiig business provided for, s. 22, p'. 14, see Pending Business. of questions in actions, R P. 41, p. 77. questions of law or fact may be transferred from one judge to another, R.P. 41, p. 77. of existing staff of officers, s. 77, p. 50. TEANSEERKED CAUSES. transfers from Inferior Cts. to H.C. may be made on application of any party where cause is beyond jurisdiction of Inierior Ct , s. 90, p. 60. transferred causes from Inferior Cts. to be continued in H.C. as if originally commenced therein, s. 90, p. 60. any action or actions may be transferred from one Div. to another of the H.C, or from one judge to another of the C. Div., by an order of the Ld. Ch., O. 46, r. 1, p. 273. provided that no transfer shall be made from or to any Div. without the consent of the President of the Div., O 46, r. 1, p. 273. any action may at any stage be transferred from one Div. to another by an order made by Ct. or any >udge of Div. to which the action is attached, O. 46, r. 2, p. 273. provided that no such transfer be made vnthout the consent of the Presi- dent of the Div. to which the action is proposed to be transferred, O. 46, r. 2, p. 273. any action transferred to the C. Div. or the Probate Div. shall, by the order directing the transfer, be directed to be assigned to one of the judges of such Div. to be named in the order, O. 46, r. 3, p. 273. TREASURY— interpretation of term, s. 100, p. 63. may determine the periods in every year, when salaries, allowances, and pensions of judges shall be payable, s 14, p. 9. TRESPASS- mortgagor in possession, without notice by mortgagee to take possession^ may sue in his own name to prevent or recover damages in respect of any, s. 25, p. 20. injunction to prevent apprehended may be granted by interlocutory order, 3. 25, p. 23. TRIAL —See also Judgment ; Referee ; Fact. matter in statements tending to prevent fair, to be struck out, R.P. 18> p. 71. Digitized by Microsoft® 414 INDEX, TRIAL— continued. and procedure, see, s. 5S-TS, pp. 40-50. order for separate, when causes joined cannot be conveniently tned togethei*, R P. 22, p 72 modes of, R.P. 30, p. 75. questions of law may be raised and tried before questions of fact, K.P. 24, p. 72. Place of Trial. no local venue for trial of any action, R P. 28, p. 74. when pi. proposes to hare action tried out of Middlesex, statement must name county or place, R P. 28, p. 74 action to be tried in county or place named by pi., unless a judge otherwise directs, R.P. 28, p. 74. where no place of trial is named in statement, place of tnal to be Middlesex, unless a judge otherwise orders, R P. 28, p 74. ^ orders of judge as to place of trial may be discharged or varied by D C. of H.O,RP. 28, p 74. Ct may order different questions arising in same action, to be tried in different ways, and may appoint place or places 'of trial, R.P. 32, p. 75. Trial by Jury sittings for trial by jury in Middlesex and London to be held, o. 30, p 25. to be held continuously as far as is reasonably practicable, and subject to vacations, s. 30, p. 25. trial of issue of fact by a July, to be before a single judge, unless specially otherwise ordered, R P. 33, p. 75. of references, R.P. 34, p. 75, see Referee, trial by jury to be before a single judge unless otherwise specially ordered to be before two or more judges, R P 33, p 75. mode of giving evidence by oral examination of witnesses in, not to be affected by Act, R.P. or R.C., s 72, p 47. Tories of Trial. to be (I ) before a judge or judges ; (II ) before a judge sitting with assessors ; (III.) before a judge and jury ; (IV,) before an official referee with assessors ; (V ) before an official referee without assessors; (VI.) before a special referee with assessors ; and (VII.) before a special referee without assessors, R P 30, p 75 pi. may give notice of trial by any of the modes, R P. 31, p. 75 deft, may have issues of fact tried by judge and jury by giving proper notice, R.P. 31, p 75. deft, may apply to Ct. or a judge to have action tried in any other way, and Ct. shall then decide the mode, R P. 31, p. 75. different questions of fact in same action may be tried in different ways, and at different times and places, R F. 32, p 75. Lists for trial in London and Middlesex. in London and Middlesex to be prepared and action allotted for trial as prescribed by R.C., without reference to division of H C. to which action attached, R.P. 29, p. 74. Ifotice of Trial. pi. may give notice of trial and thereby specify one of the modes mentioned in R.P. 30, O. 32, r. 1, p. 253. Dl. may give uotic? with his reply or at any time after close of pleadings, " O. S2, r. 1, p. 263. deft, may give notice of trial and thereby specify one of the modes men- tioned in R.P. 30, if pi. does not within 6 weeks after the close of the pleaiiings, or within such extended time as a Ct. cr judge may allow, O. 32, r 2, p. 2 3. dofh. may give notice before notice of trial given by pi., O. 32, r. 2, p. 253. if pi. or deft, desires to have action tried in any other mode than that speci- fied in notice, he shall apply to Ct. or judge for order to that effect, 0. 3% .». 3, p. 253. Digitized by Microsoft® t INDEX. 41 g TRIAL— continued. application to be made within 4 days from the time of the service of the notice, or within such extended time as a Ct. or judge may allow, \j. 6^, r. J, p.'254. °°therein'o*S2^ l"'" ^""^^ " " '" *''* trial of action or of issues in actions in Q.B., C.P., and Ex. Diva, to state the place and day for which It is entered for trial, O. 3-', r. 4, p. 25t form of notice provided for, O. 32, r. 4, p. 254. the form, schedule B, form 14, p. 304. ten days' notice of trial to be given, O. 32, r. 5, p. 264. unless pnrty to whom it is given has consented to talie short notice of trial, O. 32, r. 5, p. 254, such notice shall be sufficient in all cases unless otherwise ordered by the Ct., O. 32, r. 5, p. 254. Bhort notice shall be four daya" notice, O. 32, r. 5, p. 254 notice to be given before entering action for trial, O. 32, r. 6, p. 254. notice fir London or Middlesex shall not operate as for any particular sit- tings, O. 32, r. 7, p. 254. , it shall be deeded to be for any day after the expiration of the notice on which the action may come on for trial in its order unon the list O. 32, r. 7, p. 254. ' notice elstwhore than in London and Middlesex shall be deemed to be for the first day of the then next assizes at the place for which notice of trial is given, O. 32, r. 8, p. 254. no nctice .shjiU be countermanded except by consent or by leave of Ct. or judge, O. 32, r. 9, p. 254. leave may be given subject to such terms as to costs or otherwise as may beju-t. O. 32, r. 9, p. 254. Entry for trial. either party may enter the action for tnial if notice of trial is given else- where than in London or Middlesex, O. 32, r. 11, p. 254. if both parties enter the action for trial It shall be tried in the order of the pl.'s entry, O. 32, r. 11, p. 254. if party giving notice of trial for London of Middlesex omits to enter cause for trial on the day or day after giving notice of trial, the party to whom notice has been given may enter cause for trial, O. 32, r. 10, p. 254. unless notice has been countermanded by consent or leave, O. 32, 1. 10, p. 254. . party entering action for trial shall deliver to the ofiKcer a copy of tlie whole of the pleadings in the action for the use the of judge at the' trial, O. 32, r. 12, p. 255. such copy shall be in print, except as to such parts (if any) of the plead- ings as are by R C. permitted to be written, O. 32, r. 12, p. 255. 2fon-appeara7ice at trial. . pi. may prove his claim so far as the burden of proof lies on him if when action is called on for trial the pi. appears and the deft.' does not appear, O. 32, r. 13, p. 255. deft., if he has no counter claim shall be entitled to judgment dismisstng the action, if when the action is called on for trial the deft, appears and pi. does not appear, O. 32, r. 14, p. 255. if deft, has counter claims then he may prove such counter claim, so so far as the burden of proof lies on him, O. 32, r. 14,'p. 255. Setting aside judgment for non-appearance. any verdict or judgment obtained where one party does not appear at trial, may be set aside by Ct. or judge upon such terms as may seem fit, O. 32, r. 15, p. 255. application for the purpose must be made within 6 days after trial, O. 32, r. 15, p. 255. application may be made either at the assizes or in Middlesex, O. 32, r. 15, p. 255. Adjoum/mant of trial. judge may postpone or adjourn trial for snch tim« and upon such terms, 1 any, as be-shaU think fit, O. 32, r. 16, p. 25S. Digitized by Microsoft® 41 6 INDEX. TRIAL - continued if he thinks it expedient for the interests of justice, O. 32, r. 16, p. 255: Entry of judgment. judge may direct judgment be entered for any or either party, as he is by law entitled to upon the findings, O. 31, r. 17, p. 255. direction may be at or after such trial, O. 32, r. 17, p. 255. direction may be either with or without leave to any party to move to set aside or vary the same, or to enter any other judgment upon such . terms, if any, as he shall think fit to impose, O. 3^ r. 17, p. 255. direction may be that judgment be not entered then, and Ct. may leave any party to move for judgment, O. 32, r. 17, p. 255, no judgment shall be entered after a trial without the order of a Ct. or judge, O. 32, r. 17, p. 265. associate shall enter (a) all findings of fact directed by judge to be entered (6) all directions of the judge as to judgment, and (c) certificates granted by the judge, O. 32, r. 18, p. 256. entries to be made by the associate upon every trial at the assizes or at the London and Middlesex sitting of the Q.B., C.P., and Ex. Div. ■where the officer present at the trial is not the officer by -whomjudgments ought to be entered, O. 32, r. 18, p. 255. entries to be made in a book, to be kept for that purpose, O. 32, r. 18, p. 256. certificate of associate that judge directed judgment to be entered for any party absolutely, shall be sufficient authority to proper officer to enter judgment accordingly, 0. 32, r. 19, p. '.^56. certificate of associate that judge directed judgment to be entered for any party subject to leave to move shall be sufficient authority to proper officer to enter judgment accordingly, 0. 32, r, 20, p. 256., Mocie- of trial— divectitm hy judge. Ct. or judge may direct a trial without a jury of any question or issue of fact, or partly of fact, and partly of law arising in any cause or matter TThich previously to passing of Act could, without any consent of parties be tried without a jury, O. 32, r. 21, p. 256. direction may be made if Ct. or judge deem it advisable, O. 32, r. 21, p. 256. Ct. or judge may direct that any issue of fact shall be tried by a judge "with a jury, O. 32, r. 23, p. 256. direction to be made if it shall appear either before or at the trial that the issue can be more conveniently tried before a jury, O. 32, r. 22, p. 256. Ct. or judge of Siv. to which action is assigned may order trial and determi- hation of any question or issue of fact, or partly of fact and partly of law, by any commissioner or commissioners appointed under sec. 29, or at the sittings to be held in Middlesex or London, O. 32, r. 24, p. 256. order may be made at any time or from time to time, O. 32, r. 24, p. 256. Such question or issue shall be tried and determined accordingly, O. 32, ' r. 24, p. 256. Trials with assessors, trials with assessors shall take place in such maimer and upon such terms as Ct. or judge shall direct, O. 33, r. 23, p. 256. TRIAL BEFORE EEPEREES— See also Referees ; Referee Special ; Referee Official, requiring prolonged examination of documents or accounts or scientific investigation or local investigation, may take place before referee, s. 66, p. 41 before referees, power to direct, a. 57, p. 41. effect of their findings, a. 58, p. 42. powers of Ct. with reapect to proceedings before, s. 59, p. 42 TRINITY SITTINGS AND VACATIONS— See Sittings and Vacations. TRUST ACCOUNT. writ of summons to be endorsed "with claim that pi. requines account in ordinary cases of, R P. 8, p. 67. Digitized by Microsoft® INDEX. 417 TRUSTEE. Ot. may order trustee to be made party to an action in case of marriage, death, or bankruptcy of any party to an action, R.P. 17, p. 70: may sue and be sued without joining parties beneficially interested, R.P. 14, p. 69. right of, to costs, out of a particular estate or fund, to be same as he would have according to rules hitherto acted upon in Gts. of Equity, R.P. 47, p. 80. no claim of cestui que trust against his for property held on express trust or in respect of breach of trust to be barred by statute of limitations, s. 25, p. 20. TRUSTEE RELIEF ACTS. where there are disputed claims payment by person liable to chose in action into H.C. under, s. 25. p. 21. Trustee Relief Act, 1847 (10 and 11 Vict., c. 96), pp. 130-131. Trustee ReUef Act, 1849 (12 and 13 Viet., c. 74), p. 132. TRUSTS statutes of limitation not applicable to express, or to breach of, s. 25, p. 20. execution of charitable and private, causes as to, assigned to 0. Div., s. 34, p. 29. TYPE. to be used in proceedings ordered to be printed, to be pica leaded, O. 50, r. 2, p. 277. UNNECESSARY PROCEEDINGS. deft, not to be embarrassed by, or bear expenses of, R.P. 23, p. 72. UNREASONABLE. , . , ,^ „ „ „. „n interrogatories, coat of, to be borne by party in fault, R.P. 25, p. 73, see Costs ; Interrogatories UNSECURED CREDITORS— See Creditors. ■UNSOUND MIND. , , , ^ , ., ^ t, ,> jurisdiction as to persons and estates of persons of, not transferred to U.t/., s. 17, p. 10. TTQJ A f^'C' judges appointed before paasrng of Act not liable by, toperve on commissions of assize, &c., not to be liable, s. 11, p. 6. in office of judge of H.C. to be ffUed up by appointment by letters patent, s 5 p 2 by resignation of judge to be effected by writing to M. Ch., s 7, p. 5. in office of judge of H.C. by appointment as judge of C.A., s .7, P- 5 in office of jud|e of either Ct., Cts. to be deemed duly constituted during, s. 7, p 5 ^■^Ld Ch' may abolish certain offices and distinctions on vacancy occurring, s. 77, p. 52 VACATIONS. ^ . ™ „ ™, H.M. may make orders as to, a. .S, p. iJ . ... ,11. » „„t ioto ^ section as to, to come into operation on passing of Act 5th August, 1873, a. K.c' to provide for sittings in London aad Middlesex, of vacation, judges, to dispose of urgent business, s. 28, p. 24 ^"^^tio'rfVe^tos'of the H.C. shall be selected at the commencement of *™a«hlo^STonforthe hearing, in i-onimoT mi^e^^d^S^'^^ tion of all auch agpUcations as may reqiuue to be immediately or ^T^ZT^ii£s^mi^i>^^tionmage.loroneye^rbom their ap- i„''the*^*^n<^of 'aJiaig^eS between the judges, the two.»acatiop "ji^efsSrbe the t,^ judges .last appointed>heth« the H.C. ot of any Ct. whose junaeUction w by the said Act trans- XA Digitized by Microsoft® 41 S INDEX. VACATION JUDGES— continued fer ed to the H.C.) who have not already served as vacation judges of any such Cfc., O. 55, r. 5, p. 283. if there be nut two such judges for the time being of the H.C. who shall not have so served, then the two vacation judges shall be the judge (if any) who has not so served, and the senior judge or judges who has or have so served once only, according to seniority of ax>- pointment, whether in the H.C. or sueh other Ct. as aforesaid, O. 55, r. 5, p. 284. the Ld. Gh. shall not be liable to serve as a vacation judge, O. 55, r. 6, p. 281. vacation judges may sit either separately or together as a D.C., as occasion shall require, and ntay hear and dispose of all actions, matters, and other business to whichever Oiv. the same may be assigned, O. 55, r. 6, p. 2^4. No order made by a vacation judge shall be reversed or varied except by a D.C. or C.A., or a judge of C.A., or the judge who made the order, O. 55, r. 6, p. 284. any other judge of the H.C. may sit in vacation for any other judge, O. 55, • r. 6., p. 284. one of the ordinary judges of G.A. shall be selected at the commencement of the long vacation for the hearing in London or Middlesex of all such applications as may require to be immediately or promptly heard, 0. 5^ r. 7, p. 284. such judge shall act as vacation judge for one year from his appoint- ment, O. 55, r. 7, p. 284. in the absence of arrangement between the judges, the judge who junior in rank, who has not already served as vacation judge of the G.A., shall be the vacation judge, and if there shall be no such judge, then the senior ordinary judge who has so served once only, according to seniority of rank, O. 55, r. 7, p. 284. vacation judge may discharge or vary any order made by a single vacation judge of H.C- ; but every such order may be varied or discharged by the G.A. or a D.C. thereof, O. 55, r. 7, p. p. 284. any other judge of G.A. may sit in vacation for the vacation judge, O. 55, r. 7, p. 284. the vacation judges of H.C. or C.A. respectively, may dispose of all actions, matters, and Other business of aa urgent nature during the interval between the sittings of any Div. of H.C. to which such business may be assigned, or of the C.A., as the case may be, although such interval may not be called or known as a vacation, O. 55, r. 9, p. 284. VALUATION. of aimuities, and future and contingent liabilities in ijosolvent estates, rules as to, to be same as in bankruptcy, s 25, p. 20 VENDITIONI EXPONAS.— See Writs in Aid. VENDORS AND PURCHASERS. causes aa to specific performance of contracts between, iucluding contracts for leases assigned to C. Div., a. 34, p. 29 VENUE. no local, for trial of any action, E.P. 28, p. 74, see Trial. VESTING. in H.C. of jurisdiction of various Cts.. s. 16, p. 9 in H C. of every duty, power, and authority of judges, s. 16, p. 10 VEXATIOUS. J J s , , F interrogatories, costs of, to be borne by party in fault, R.P. 25, p. 7S, see Costs; Interrogatories. VICE-CHANCELLORS OP THE HIGH CT. CH. the several, to be first judges of H.C, s, 5, p. 2 appointment of, as judges of H.C., s. 31, p. 27 VISITOR. jurisdiction of Ld. Ch. as, of college or charitable foundation not transferred to H.O., s 17, p. H VIVA VOCE EXAMINATION. shall be the rule at trials of any cause or assessment »i damages unless otherwise arranged, R.P. 36, p. 76 Digitized by Microsoft® INDEX. ^i^ VOID. non-compUance with R.C., not to render proceedings void, 0. 53, p. 281. ■WARDSHIP. AVASTE^™**' "^"^^^ ^ '"' i^signed to C. Div., s. 34. p. 30 "^^n^it^y^^^^ irithout impeachment of, not to confer legaj' right to commit equitable, unless intention expressly appear, s. 26 p 20 imunctionto prevent apprehended, may be granted by interlocutory order, SE^SS?/^^^^. RECOKD-^ee Discontinnance of Action. WliNBSb — See Evidence. examination of, generally to be viva voce, R.P. 36 p. 76 by interrogatories, R P. 36, p. 7B before Commissioner or Examiner, R.P. 36, p. 76 power to make interim order as to, R.P. 45 o 78 WOMEN— See Married Women. WORDS. used in Act to have certain interpretation, unless anything repugnant in context, s. 100, p. 62. j s t- b ■WRIT OP ATTACHMENT.— See attachment. WR[T OF DISTRINGAS.— See Distringas. WRIT OF DELIVERY. a writ for the delivery of any property, other than land or money, may be issued or enforced in the manner heretofore in use in actions of detinue in the Superior Cts. of C.L., O. 44, r. 271. WRIT OF ELEGIT. to have same force and effect as the like writ has heretofore had, O. 38 r. 1, p. 267. to be executed in the same manner in which the like writs have heretofore been oxpcnted, O. 38, r. 1, p. 267. WRIT OP ERROR. pending at commencement of Act may be prosecuted to House of Lords, H M; in Council, or Judicial Committee, s. 20, p. 12 WRIT OF EXECUTION.— See Execution Wiit of. WRIT OP FRIRI FACIAS. to have same force and effect as the like writ has before had, 0. 38, r. 1, p. 267. ' • . • to be executed in the same manner in which the like writ has heretofore been executed, 0, 38, r. 1, p. 267. WRITS IN AID- OF FI. : FA. : OR ELEGIT. writs of venditioni exponas, distringas nuper vice comitem, fieri facias, de bonis ecclesiasticis, sequestrari facias de bonis ecclesiasticis, and all other ' vnits in aid of a writ of tieri facias O'' of Elegit may be issued and exe- cuted in the same cases, and in the same manner as heretofore, O. 38, r. 2 p. 2f7. WRIT OF POSSESSION. a judgment that a party do recover possession of any laud may be enforced by writ of possession in manner heretofore used in actions of ejectment in the Superior Cts. of Common Law, 0. 43, r. 1, p. 271. Writ of possession may be issued by person prosecuting judgment, O. 43, r. 2, p. 271. Writ may be sued out without any order for that purpose, O. 43, r 2, p. 971. Writ may be sued out on filing an affidavit showing (a) due service of judg- ment and lb- that judgment has not been obeyed, O. 43, r. 2, p. 271. WRIT OF SEQUESTRATION. writ of sequestration may issue (a) where any person is by any judgment directed to pay money into Ct., or _(&) to do any other act in a limited time, and after due service of such judgment, refuses or neglects to obey the same according to the exigency thereof, 0: 43, p. 271. the person prosecuting judgment shall, at the time limited for the per- formance thereof be eotitled to issue writ, 0, 42, p. 271. Digitized by Microsoft® 42:0 INDEX. WRIT OF EXECUTION— continued. writ to issue without any order for that purpose, O. 42, p. 271. trrit to issue against tile estate and effects of such disobedient person^ O. 42, p. 271. Tnit to have same eSent as a writ of seg,uestration in Chancery has hereto- fore had, O. 42, p. 27L proceeds of sequestration may be dealt with in the same manner as the pro- ceeds of writs of sequestration have heretofore been leal**" with by the Ct. Ch., O. 42, p. 271. WEIT OF SUMMONS. — The references on thia subject are thus Bub-diTided : — (1.) Fonn of writ ; (2.) Date and teste of writ ; (3.) Endorsements of dainv on writ ; (4.) Special endorsements of writ ; (5.) Endorsement of address on writ ; (6.) Issuing of writs ; (7.) Endorsement of character of parties ; (8.) Concurrent writs; (9.) Disclosure by solicitors and plaintiffs; (10 j Renewal of writs ; (11.) Duration of writs ; (12.) Service in the jurisdic- tion ; (13.) Service out of jurisdiction- WRIT OF SUMMONS.— (I.) FORM OP WEIT. forms of writ of summons appUcabU to several ordinary causes of action to be prescribed by R.C., R.P. 3, p. 66. costs incurred by use of any more prolix or other f orm^ than those prescribed, by R.C., to be home by party u^ng same, unless Ct. shall otherwise direct, R.P. 3, p. 66, general form provided for, O. 1, r, 1, p..202. — The form Schedule A, pt. 1, form 1, p. 287. farm for service out of jurisdiction provided for, 0» 1, r. 3, p. 202. — ^The form. Schedule A, pt. 1, form 2, p. 287. form where notice in lieu of. service out of the jurisdiction is to be given, provided for, O. 1, r. 3, p. 202.— The form Schedule A, pt. 1, form 3, p. 288. form, in an action upon a bill of exchange or promissory note commenced, within six months after same shall have become due, to remain unaltered. O, 1, r. 4, p. 202. proceauie in interpleader to be as provided under Interpleader Acts O. 1, , r. 5, p. 203. form in Admiralty action in rem provided for, O. 1, r. 6, p. 203.— The form Schedule A, pt. 1, form 4, p. 289. WRIT OF SUMMONS.— (2.) Date AND TESTE OP WRIT. every writ of summons and also evqry other wi"it to bear date on the day on which the same shall be issued, O. 1, r. 7, p. 203. every writ of summons to be tested in the name of the Ld. Ch., or if office of Ld. Ch. be vacant in name of C. J. of England O. 1, r. 7, p. 203. WRIT OF SUMMONS.— (3 ) Endorsements of claim on writ.— See also. Special Endorsements infra. In all coAes. every writ of summons shall be endorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action, R.P. 2, p. 65. endorsement of claim shall be made on a writ of sunmions before it is issued, 0. 2, r. 1, p. 203. not to be essential to set forth therein — 1. the precise ground of complaint. 2. the precise remedy or relief to which the pi. considers himself entitled^ O. 2, r. 2, p. 203. pi. may by leave of Ct. or Judge amend endorsement so as to extend it to — 1. any other cause of action. 2. any additional remedy or relief, O. 2, r. 2, p. 203. 2n particular cases. 1. where pi. sues, or any of the defts. is sued in a representative capacity,. endorsement to show in what capacity he sues, O. 2, r. 4, p. 204. — For forms Schedule A, pt. 2, sec. 8, p. 300. 2. in probate actions the endorsement to show whether pi. claims as creditor, executor, administrator, residuary legatee, legatee, next, of kin, heir-at-law. or otherwise.— O. 2, r. 5. d. 204. Digitized by Microsoft® INDEX. 421 WRIT OF SJJMM0NS-(3) Endorsements of Claim on WaiT-continued J. m action wheu pL s claim is for debt or liqmdated demand only, endorse- ment to state — (a) nature of claim. (i) amount clainaed tor debt and costs respectively. (c) tliat upon payment of debt and costs witliin 4 days after service (or m case of writ not for service within jurisdiction, within tne time allowed for appeai-ance), f urtlier proceedinKs will be stayed, O. 2, r. 6, p. 204. torn provided for^ O. 2, r. 6, p. 204.— Form may be as in Schedule A, pt. 2, sec. 3, p. 293. deft, maor have costs taxed, notwithstanding, payment aocordins to notice, O. 2, r. 6, p. 204. => i- j s v if more than one sixth of costs be disallowed, pl.'s solicitor to pay costs of taxation, O. 2, r. 6, p. 204. General forms of endoraements. to be prescribed by R.C., R.P. 3, p. 66. costs incurred by use of more prolix or other forms shall be borne by party usmg same, unless Ct. shall otherwise order, R.P. 3, p. 66. general forms of endorsements provided for, O. 2, r. 3, p. 203.— The forma Schedule A, pt. 2, pp. 289-300. Special forms of endorsetnents. form applicable to particular case to be used or endorsement to be in such other similarly concise form as nature of case may require, O. 2, r. 3,, 1. forma applicable to matters assigned by the Act to the Ch. Div., Schedule A, pt. 2, sec. 1, pp. 289-290. (a) creditor to administer estate. Schedule A, pt. 2, sec. 1, form 1, p. 289. (b) legatee to administer estate. Schedule A, pt. 2, sec. 1, form 2, p. 289. (c) partnership. Schedule A, pt. 2, sec. 1, form 3, p. 289. (d) by mortgagee, Schedule A, pt. 2, sec. 1, form 4, p. 289. (e) by mortgagor, Schedule A, pt. 2, sec. 1, form 5, p. 290. (f) raising portions. Schedule A, pt. 2, sec. 1, form 6, p. 290. Cg) execution of trusts. Schedule A, pt. 2, sec. 1, form 7, p. 290. (h) cancellation or rectification, Schedule A, pt. 2, sec. 1, form 8„ p. 290. (i) specific performance. Schedule A, pt. 2, sec. 1, form 9, p. 290. 2. forms applicable to money claims (where no special endorsement under R.P. 7), Schedule A, pt. 2, sec. 11, pp. 290-293. 3. forms for endorsements for costs, Schedule A, pt. 2, sec. 3,, p.' 293 4. forms of endorsements where claim is for damages or other like claims,, Schedule A, pt. 2, sec. 4, pp. 293-297 5. forms of endorsements in probate causes. Schedule A, pt. 2, sec. 5, p. 297 (a) by an executor or legatee propounding a wiU in solemn form,. Schedule A, pt. 2, sec. 5, form 1, p. 297 (b) by an executor or legatee of a former wiH, or a next of kin, &c., of the deceased, seeking to obtain a revocation of a Probate granted in common form,- Schedule A, pt. 2, sec. 5, form 2. p. 297 (c) by an executor or legatee of a will when letters of administration have been granted, as in an intestacy. Schedule A, pt. 2, sec. 5, form 3, p. 297 (d) by a person claiming a grant of administration as a next of kin of the deceased, but whose interest as next of kin is disputed,. Schedule A, pt. 2, sec. 5, form 4, p. 297 t. forms in admiralty causes, Schedule A, pt. 2, sec. 6, p. 298 (a) damage to vessel by collision, Schedule A, pt. 2, sec. 6, form 1, p. 298 (k) damage to cargo by collision, Schedule A, pt. 2, sec. 6, forms 2, p. 298 Digitized by Microsoft® 422 INDEX. WRIT OF SUMMONS— (3) Endorsements of Claim on Writ— continued. (c) damage to cargo otherwise, Schedule A, pt. 2, sec. 6, form 3, p. 298 (d) in causes of possession. Schedule A, pt. 2, sec. 6, forms 4, 5, 6, 7, 8j and 9, p. (e) by a part owner of a vessel, Schedule A, pt. 2, sec. 6, forms 10 and 11, p. 298 (f) by salvors, Schedule A, pt. 2, sec. 6, form 12, p. 298 (g) claim for towage. Schedule A, pt. 2, sec. 6, form 13, p. 298 (h) seamen's wages, Schedule A, pt. 2, sec. 6, form 14, p. 298 (i) for necessaries, Schedule A, pt. 2, sec. 6, form 15, p. 298 7. forms of endorsement of character of pai-ties provided for, O. 2, r. 4, p. 204.— The forms Schedule A, pt. 2, sec. 8, p. 300 WRIT OF SUMMONS.— (4.) Special endorsements of writ.— For endorse- ments in ordinary cases, see infra. (I.) Debts and liquidated demands. writ of summons may be specially endorsed with particulars of the amount sought to be recovered after giving credit for any payment or set-off where pi. seeks to recover (1) debt ; (2) liquidated demand in money papable by deft., with or without interest, arising upon a contract, express or implied, as for instance : — (R.P. 7, p. 66.) (a) bill of exchange. — For form see Schedule A, sec. 7, form 4, p. 299 (b) promissory note. — For form see Schedule A, sec. 7, form 3, p. 299 (c) cheque. (d) other simple contract debt. — For form see Schedule A, sec. 7, form 1, p. 299 (e) bond.— For form see Schedule A, sec. 7, form 5, p. 299 (f) contract under seal for payment of a liquidated amount of money. —For form see Schedule A, sec. 7, form 6, p. 299 (ff) statute where sum sought to be recovered is a fixed sum of money or in the nature of a debt. (h) guaranty, whether under seal or not, where claim against the principal is in respect of such debt or liquidated demand, bill, cheque, or note. — For form see Schedule A, sec. 7, form 2, p. 299 (i) on a trust. In case qf non appearance of defendant. pi. may sign final judgment for any sum not exceeding the sum endorsed on the writ, together with interest at the rate specified, if any, to the date of judgment, and a siim for costs, R.P. 7, p. 67. Ct. or judge may set aside or vary such judgment upon such terms as may seem just, R.P. 7, p. 67. In case of appearcmce of defendant. pL may on affidavit (I.) verifying cause of action ; (Il.)swearingthat inhis belief there is no defence to the action, call on deft, to show cause before Ct. or judge why ^pl. should not be at liberty to sign final judgment for amount endorsed, together with interest if any, and costs, R.P. 7, p. 67. deft, may defend action if by affidavit or otherwise (I.) he satisfy Ct. or judge that he has a good defence to the action on the merits ; (II.) or discloses such facts as the Ct. or judge may think sufficient to entitle him to defend, R.P. 7, p. 67. pi. may be empowered, by order, to sign judgment if deft, fail to satisfy Ct. or judge of his defence, R.P. 7, p. 67. Application to enter final judgment and leave to defend. shall be made by summons returnable not less than two clear days after service, 0. 13, r.^ 1, p. 221 deft, may show cause against application (I.) by offering to bring into Ct. the sum endorsed on the wi-it, or (II.) by affidavit, 0. 13, r. 2, p. 221. » . » affidavit to state whether defence he alleges goes to whole or to part only, and if so, to what part of pl'.s. claim, O. 13, r. 2, p. 221. judge may order deft, (a) to attend and be examined on oath (b) or Digitized by Microsoft® INDEX. 423 WRIT OF SUMMONS— (4) Special Endorsements op Writ— continued to produce any books or documents, or copies of or extracts therefrom, 0. 13, r. 2, p. 221. pi. may have judgment forthwith for undefended part if (a) defence applies only to part of pi's, claim, or (b) part of his claim is admitted to he due, any deft, may he allowed to defend as to residue, O. 13, r, 3, p. 221. such judgment may be subject to terms as to (a) suspending execution, or (6) payment of ajnount levied or any part thereof into Ct. by sheriff (c) taxation of costs, or (d) otherwise as jud^e may think fit, O. 13, r. 3, p. 221. pi. may enter final judgment and issue execution against deft, without defence if it appears to judge that one deft, has defence, but that another deft, has no defence, without prejudice to pi's, right to proceed against deft, defending, O. 13, r. 4, p. 222. leave to defend may be given (a) unconditionally, or (!>) subject to such terms as to giving security, or (c) otherwise as Ct. or judge may think fit, O. 1, r. 5, p. m (II.) In Cases of Accocnt. writ of summons shall be endorsed with a claim for accounts in all cases of ordinary account, as for iuBtance in the cases of : — (a) partnership accounts. (6) executory accounts. (c) ordinary trust accounts, where the pi. in the first instance desires to have an account taken, R.P. 8, p. 67. In default of appearance of defendant. an order for the account daimed with all directions usual in Ct. Ch. Jn similar cases shall be forthwith made, R.P. 8, p. 68. In cases of appearance of defendant. deft, may, by affidavit, satisfy Ct. or judge that there is some pre- liminary question to be tried, R.P. 8, p. 68. deft, failing to satisfy Ct., order for account claimed, with aU directions usual in Ct. Ch. in smulai cases, shall be forthwith made, R.P. 8, p. 68. The application. ,,, ™,j -xi.tj 1.1.1* to be made by summons and be supported by an aihdavit bled on behali of the pi. stating concisely the grounds of his claim to an account, O. 14, p. ffi2. . , / . u May be made at any time after the time for entermg an appearance has expired, O. 14, p. 222. WRIT OF SUMMONS.— (5.) ENDOESEMENT OF ADDRESS ON WRIT AND NOTICE IN LIEU OF SERVICE OF WRIT. ^ ^. . ■ ^ ■ ^ i. (I ) When writ is issued out of London oflee or out of district registry where defendant has option of entering an appearance m district registry or London offixe (see O. 4, r 2, p. 205). 1 if nl. sues by solicitor. , ,. .^ a e ■ (a) in proper business, address of pi., name of solicitor, or firm of soUcitors, and place of busin&s O. 3, r^ 1, p. .204. _ „ ,„ if place of business more than three miles from Temple Bar another place to be called his address for service, within that distance, to be endorsed where proceedings may be left, O. 3, r. 1, p. 204. IV\ in agency business, in addition to address of pi. and name of agent or firm of agents, and place of busmess, the name or firm and place of business of the prmcipal solicitor, O. i, r. 1, p. 205. ^- "n^L™o/j?.,'pire of residence and occupation and also of place within three mUes of Temple Bar, if his residence is not withm that distance, O. 3, r. 2, p. 205. ^ ^. , . .. . , /,„„ n i ^ ^ (It) Jn other eases where writ is issued out of district registry (see O. 4, r. 3, 1. if ph' ISes by solicitor, address ef pi., name of solicitor •r firm of Digitized by Microsoft® 424 INDEX. WRIT OF SUMMONS— (5i Endorsement op Adbeess, &g— continued solicitors, and his other place of business within the district, O. 3, r. 3, p. 205. 2. if pi. sues In person, his place of residence and occupation, and if his place of residence be not within the district, an address for serrica withm the district, O. 3, r. 3, p. 205. WRIT OF SUMMONS.— (6.) ISSUINU OF WRITS. writs to be prepared by pi. or liis solicitor, O. 4, r. 5, p. 206. writs to be written or printed or partly written and partly printed on paper of the same description as directed in case of proceednigs directed to be printed, O. 4, r. 5, p. 206. proceedings required to be printed shall be printed on cream wove machine drawing foolscap folio paper I9Ibs. per mill ream or thereabouts, O. 50, r. 2, p. 277. writs to be sealed by the proper officer, and thereupon to be deemed to be issued, O. 4, r. 6, p. 206. Place of Issue. writ may issue out of registry of any district wherever pL may reside (except in probate action), O. 4, r. 1, p 205. if deft, neither resides nor carries on business within district of issuing registry deft, may appear either (I.) in the issuing registry or (II.) in London office and writ must have on its face statement to that effect, O. 4, r. 2, p. 206. if deft., resides or carries on business within district of issuing re- gistry, deft, must appear in such registry, and writ must have on its face, statement to that effect, O. 4, i. 3, p. 206. Choice qf Division, &c. cause or matter may be commenced in any Div. of H. C. (except in actions hitherto within the non-exclusive cognizance of H.C. of admiralty) O. 4, r. 4, p. 206. cause to be so assigned by (I.) markmg document by which same is com- menced with name of Division, and (II.) giving notice thei-eof to proper officer, O. 4, r. 4, p. 206. if marked for C. Div., cause to be assigned to one Of Judges of Div. by marking same with name of Judge chosen by pi., O. 4, r. 4, p. 206. assignments to particular Div. or particular Judge to be subject to power of transfer, O. 4, r. 4, p. 206. WRIT OF SUMMONS.— (7.) Bndobsement op Character of Parties. if pi. sues or deft, or any of defts. is sued in a representative capacity, the endorsement shall show in what capacity pl. or deft, sues oi- is sued, O. 2, r. 4, p. 204. form of endorsement provided for, O. 2, r 4, p. 204. — The Forms Schedule A, pt. 2, sec. 8, p. 300. in probate actions the endorsement shall show in what capacity pl. claims, 0. 2, r. 5, p. 204. ■ Cepy of Writ. to be left with proper officer on presenting any writ of summons for sealing, O. 4, r. 7, p. 207. to be written or printed on paper of same description as directed, in case of proceedings directed to be printed, G. 4, r. 7, p. 207. to be signed — 1. by or for the solicitor leaving the same, or 2. by the pl. himself if he sues in person, O. 4, r. 7, p. 207. to be filed by officer receiving same, O. 4, r. 8, p. 207. entry of filing to be made in a book to be called the Cause Book kept in the manner in which Cause Books have hitherto been kept by the Clerks of Records and Writs in Ct. Ch., O. 4, r. 8, p. 207. action to be distinguished by the date of the year, a letter and a number in the manner in which causes are now distinguished in Cause Bookk kept by Clerks of Records and Writs in Ct. Ch., O. 4, r. 8, p. 207. Proceedings to be JUed in the Registry in particular casts prsviout to issue of vtrit : — 1. in probate actions, Digitized by Microsoft® INDEX. 425 ^^^'^ •^Sf„Y,^*^T!-9^''°°=^™'^''^ O^ CHARACTER, Ac-continued ^^^%^\Cm '"' ^''- *" *^"'"=='*'»" of t-^^ endremenf ' 2. in admiralty actions in rem. affidavit by pi. or his agent setting forth— °St ™^ description of the party on whose behalf the action is (b) nature of the claim. (c) name and nature of the property to be arrested. ( (e) the national ch-iracter of the vessel proceeded against,, O. 4, r. 11 Inactiouof wages against Foreign ship (in addition to above a, 6, c d andc) (/).affidavit shall state that notice of the institution of the action has been given to the Consul of the State to which the vessel belonss if there be one resident in London, O. 4, r. 11 b, p. 208 (g) copy of notice to be annexed to the affidavit, O. 4, r. 11 b, p. 208 Ct. or judge however, may, waive the service of the notice 6 4 r. 11 e, p. 208. ' ' in action of bottomry (in addition to above a, b, c, and d). (e) the bottomry bond, and if in a foreign language a notarial trans- lation thereof, to be produced for the inspection and perusal of the Registrar, O. 4, r, 11 c, p. 208. (/) copy of the bond or of the translation thereof, certified to be correct, to be annexed to the affidavit, 0. 4, r. 11 c, p. 208. Ct. or judge may, however, waive production of bond, O. 4, r. 11 e, p. 208. in action of distribution of salvage (in addition to above a, b, c, and <«). (e) affidavit to state amount of salvage money awarded or agreed to be accepted, O. 4, r. 11 d, p. 208. , . (f) aifidavit to state name, address, and description of the party holding salvage moneyi O. 4, r. 11 d, p. 208. Second or subsequent action against property when under ari-est in adrrdrdlty. jsoUcltor in second action may take out summons in rfem'(snbject to rules applicable to first summonses), O, 4, r. 12, p. 208. .: solicitor in second action may cause a caveat against the release of the property to be entered In the Caveat Release Book, O. 4, r. 12, p. 208. WRIT OF SUMMONS.— (8.) Concurrent writs. one or more may be issued at instance of pL 1. At the time of issue of original writ of summons, O. 5, r. 1, p. 208. 2. at any time during twelve months after issue of original writ, O. 5, r. 1, p. 208. . ' ' ' to bear teste of the same day as original writ, O. 5, r. 1, p. 208. to be marked (I.) with a seal bearing word ' Concurrent ;' (II.) the date of issuing the concurrent writ, O. 5, r. 1, p. 208. seal to be impressed upon the writ by proper officer, O. 5, r. 1, p. 209. to be in force only for the period during which the original writ in such action shall be in force, 0. 5, r. 1, p. 209. writ for service within jurisdidtion may be issued and' marked as a con- current writ with one for service (or whereof notice in lieu of service is to be given), out of th^ jurisdiction, O. 5, r. 2, p. 209. writ for service (or whereof notice iii lieu of Service is to be given), out of the jurisdiction^ may be issued and marked as a concurrent writ with one for service within the jurisdiction, O. 5, r. 2, p. 209, VSERIT OF SUMJiONS,— (9.) Disclosure by solicitors and plaintipfs. Generally. -,. pj^ demajid in writing by, or on behalf of deft, who has (I.) been served with Writ, or' (II.) has appeared to vfrit':^ ■ - every solicitor, whose name shall be endorsed on writ, shall declare Digitized by Microsoft® 426 INDEX. WRIT OF'SUMMONS— (9) DISCLOSUEE BY SOLICITOUS, &o— continued forthwith whether such writ has been issued by him, or with his authority or privity, O. 6, r. 1, p. 209. Proceedings to be stayed if without his authority, and no further proceeding taken without leave of Ot. or Judge, O. 6, r. 1, p. 209. When writ issued by partners in name of firm. on demand in writing by or on behalf of any deft., pis. shall declare forth- with; — 1. names of all persons constituting firm. 2. places of residence of all persons constituting firm, O. 6, r. 2, p. 209. pis. failing to comply with demand all proceedings in action shall, on application for that purpose, be stayed upon terms, O. 6, r. 2, p. 209. when names of partners are so declared, action to proceed in same manner, and same consequences to follow as if they had been named in the writ, 0. 6, r. 2, p. 210. all proceedings, however, to be continued in name of firm, 0. 6, r. 2, p. 210. WRIT OP SUMMONS.— (10.) RENEWAL OF WRIT. no original writ to be in force for more than twelve months from day of the date thereof, including the day of such date, O. 7, r. 1, p.210. application to judge or registrar to renew writ may be made by pi. before expiration of twelve months, if deft, has not been served, O. 7, r. 1, p. 210. judge or registrar if satisfied that reasonable efforts have been made to serve " deft. , may order that original or concurrent writ be renewed for six moriths from date of such renewal, and so from time to time during the currency of the renewed writ, O. 7, r. 1, p. 210. writ to be renewed, by being marked with a seal bearing date of day, month and year of such renewal, O, 7, r. 1, p. 210. seal to be provided and kept for that purpose at the proper offices of the Cts., O. 7, r. 1, p. 210. seal to be impressed upon the writ by the proper ofiicer upon delivery to him' by the pi. or his solicitor of a memorandum, O. 7, r. 1, p. 210. fOrin' of memorandum provided for, O. 7, r. 1, p. 210. — ^The form Schedule A, pt. 1, form 5, p. renewed writ of sununons to remain in force and be available to prevent the operation of any statute whereby the time for the commencement of an action may be limited, and for aU other purposes from the date of the issuing of the original writ of summons, O. 7, r. 1, p. 210. production of writ purporting to be marked with seal of Ct., showing_the same to have been duly renewed, to be sufiicient evidence of its having been so renewed, and of the commencement of the action as if tlie first date of such renewed writ for all purposes, O. 7, r. 2, p. 210. WRIT OF SUMMONS.— (11.) DURATION OF wlilT. if original, no writ to be in force for more than twelve months from the day of the date thereof, includmg the day of such date, O. 7, r. 1, p. 210. it concurrent, for the period during which the original writ in such action shall be ih-force, O. 5, r. 1, p. 203. it renewed tor six months from date of such rene\val, O. 7, r. 1, p. 210. See Writ 'Of Summons ; Renewal of Writ. WRIT OF SUMM0NS.-(12.) Service in the jurisdiction. Acceptance of service. no semce of iviit shall be required when deft, by his solicitor (I.) agrees to accept service, and (II.) enters an appearance, R.P. 4, p. 66. Personal senice. ' wlien service Is required the writ shall, whenever it is practicable, be served in the manner in which personal service is now made, R.P. 5, p. 66. Bndorsement Qf service on writ. persons sei-vins writ within three days at most after such service, to .endorse on the wi'tiJthe day of the month and week of the service therectO. 8, r. 11, p: 212. ■ in default ot endorsement, pi. not to be at liberty, in case of non- appearance, to proceed by default, 0. 8, r. 11, p. 212, Digitized by Microsoft® INDEX. 427 ^%^*^^,^y'^'*^?^^— ^l'^> S«™'=» ^ the jmisdiotion—contmued. AJidavit of service. to mention the day on which endorsement of service was made on writ, 0. 8, Service of notice in lieu qf service. to be in same maimer in which writs are served, 0. 10. i 5 d 214 Si^shtuted service. > "• i- '^■'■ if it be made to appear to Ct. or judge that the pi. is from any cause unable K^f-i i''I°™P* personal service, Ct. or judge may make such order for substituted or other service, or for the substitution of notice for service as may seem just, E.P. 5, p. 66. every application to be supported by an affidavit setting forth the grounds on which the application is made, O. 9, p. 213 On husband and wife. service on Jjjisband to be deemed good service on wife when husband and wife are both defts., O. 8, r. 1, p. 211. Ct. may order wife to be served (I.) with or (II) without dispensing with service on husband, O. 8, r. 1, p. 211. On infant. service on (I.) father (II.), guardian or if none on (III.) person with whom infant resides or (IV) under whose care it is to be deemed good service on infant, O. 8, r. 2, p. 211. Ct. may otherwise order, O. 8', i. 2, p. 211. Ct. may order service ma^e or to be made on infant to be deemed good service, O. 8, r. 2, p. 211. On lunatics not so found. service on committee of lunatic or on person with whom person of unsound mind (a) resides or (b) imder whose care he or she is, shall be deemed good service on lunatic or person of unsound mind, O. 8, r. 3, p. 211. Ct. may otherwise order, O. 8, r. 3, p. 211. On partners sued in name of firm. , writ to be served either (I.) upon pne or more of partners or (II.) at .prin- cipal place of business within the jurisdiction of the partnership, .upon any person having at the time of service, the control or maiiagement of the partnership business there, O. 8, r. 4, p. 211. such service to be a good service on the firm, subject to B.C., O. 8, i. 4, p. 211. On corporations, societies, &c. whenever, by any statute, provision is made for service, of .any writ of g.i;im- mons, bill, petition, or other process, upon any ^corporation or. upon any hundred, or the inhabitants of any place, of any society or fellowship, or any body or number of persons, whether corporate ,or otherwise, every T^t may be served in the manner so provided, O. 8i r. 5, p. 211. In action to recover land. , in case of vacant possession, service may be made, .wlien, it cannot otherwise be effected by posting a copy of the writ upon the dobf of the dwelling house or other conspicuous part of property, O. 8, r. 6, p. 212. In admiraZty actions in rem. writ to be served by the Marshal or his substitutes, .whether the pr<^erty to be arrested be situate within the port of London or elsewhere .within the jurisdiction of the Ct., O. 8, r. 7, p. 212. solicitor issuing the wiit shall, within six days of the service thereof, file the same in the registry, O. 8, r. 7, p. 212. service of writ against ship freight or cargo on board to be effected by Marshal or his officer^ nailing or affixing the original writ for a short time oh the main mast of on'the single mast of the vessel, and on taking off the process^ leaving a true copy of it nailed or fixed in its place, O. 8, r. 8, p. 212. if cargo has been landed or transhipped, service of vnnt to arrest cargo and freight to be effected by placing writ for a short time on cargo, and on taking off the process by leaving a true copy upon it, O. 8j r- 9, P- 212. if cargo be in custody- of person who will not peimit access to it, service of writ may be made upon custodian, 0. 8, r. 10, p. 212. Digitized by Microsoft® 428 INDEX. WRIT OP SUMMONS.— (13) Service out of Jurisdiction. ■No writ of summons for service out of the jurisdiction, or of wtdch notice is to be given out of the jurisdiction shall be issued vi^ithout leave of Ct. or Judge, O. 1, r. 2, p. 202. Ct. or judge may allow service, or notice in lieu of service, on any person out of the jurisdiction of the Ct., to be made or given in such mannpr and on such terms as may aeem just : — 1. whenever it appears fit to the Cfc. or to a jud^e. 2. In a case in which the cause of action has arisen within the jurisdiction. 2a. or is properly cognizable against a deft, within the jurisdiction of the Ct., R.P. 6, p. 66. service out of jurisdiction of a writ or notice may be allowed by Ct. or Judge. 1. whenever the whole or any part of the subject matter of the action is (a) land or stock or other property situate within the jurisdiction or (b) any act deed vrill or thing affecting such land stock or property, O. 10, r. 1, p. 213 ; and 2. whenever (a) the contract sought to be enforced or rescinded dissolved annulled, or otherwise affected in any such action or (&) for the breach whereof damages or other reUef are or is demanded in such action was made or entered into within the jurisdiction, O. 10, r. 1, p. 213. ; and 3. whenever there has been a breach withhi the jurisdiction of any con- tract whenever made, O. 10, r. 1, p. 213 ; and , 5. Whenever any act or thing sought to be restrained or removed, or for which damages are sought to be recovered was or is to be done or is situate within the jurisdiction, O.IO, r. 1, p. 213. application for order for leave to serve writ or notice on deft., to be sujjported by evidence (by afifidavit or otherwise), showing 1. in what plate or country such deft, is, or probably may be found. 2. whether deft, is a British subject or not. 3. the grounds upon which the application is made., O. 10, r. 3, p. 213. order to limit a time after such service or notice within which deft, is to enter an appearance, such time to depend^n the place or counby where _ or within which writ is to be served or notice given^ 0. 10, r. 4, p. 214. notice in lieu of service shaU. be given in ifianner in which writs are served, O. 10, r. 6, p. 214. In probate actions. service of writ or notice may be allowed out of jurisdiction by leave of Ct. or Judge, O. 10, r. 2,.p. 213. WRITING. ' all notices required .by R.C. to be in writing, unless expressly ordered by Ct. or judge to be given orally, O. 50, r. 1, p. 277 WRITINGS, jurisdiction as to issue of, under great seal, not transferred to H. C, s. 17, p, 10. YEARS. fifteen years' service by judge of H.C. or ordinary judge of C.A., to entitle to pension, s. 14, p. 8. PRINTED AT THE " SUSSEX EXPRESS " OFFICE, LEWES. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®