Skip to main content

Full text of "A treatise on the Supreme Court of Judicature Act (Ireland) 1877, with schedule of rules, orders of court, and forms of procedure, table of fees, &c., and notes of cases"

See other formats 


COUNTY    COUETS    IN    IRELAND. 


THE 


C 


^ults 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


i'V 


EDURE 


rs, 


.(>, 


auAJ  ins, 


ND. 


J.    \V.    L./\Kl^il  1  WIN,    VJ.*-., 

Author  of  ''A  Praictical  Treatise  of  the  Law  of  Juilgnicnt  Debt  in  IrclamJ, 
Liiw  relating  to  Qualification  and  Registration  of  Parliamentary 
Voters  in  Ireland,"  and  "  The  Practice  of  Parliamentary 
Elections  in  Ireland." 


Th 


DUBLIN  :    HODGES,  FOSTER  &  FIGGIS,  104,  GEAFTON  STREET, 
•  TgooKstUrrs  lo  the  fion.  Socicin  of  Jiing's  |nns. 


Small  8vo,  price  20s. 

THE    LAW    AND    PRACTICE    OF    THE 

HIGH  COURT  OF  ADMIRALTY, 

OF  IRELAND, 

UNl!)ER  THE  COUET  OF  ADMIRALTY  (IRELAND)  ACT,  1867, 

AND   THE 

GENERAL  ORDERS  OF  1867, 

WITH    A   COMPLETE   COLLECTION    OF 

THE    STATUTES     EELATING    TO     MERCHANT     SHIPPING, 

AND  THE  DECISIONS  THEREON, 


WALTER      BOYD,       LL.D., 

BA!!RISTEK-Ar-I,AW, 

ONE    OF    THE    ADVOCATES. 


BILLS     OF     SALE. 


Second  Edition,  'price  7s.  6d. 
A    TREATISE 

-ON    THE    LAW    AND    PEACTICE 

KESPECTING 

BILLS  OF  SALE  : 

WITH    THE    PtEQISTRATION    ACT. 

BY 

JAMES    P.    BYRXE,    ESQ. 

SOLICITOR. 

^ = -^-^^^L^ 


DUBLIN :  HODGES,  FOSTER  &  EIGGIS,  104,  GEAFTON  STREET, 

'Soobscllrrs  to  the  'Son.  .Sotictu  of  iling's  |lnns. 


A    TREATISE 

ON  THE 

Sxtpxtme  Cnixrt  0f  |ittricatuit  %d 

(IRELAND)    1877. 


A   TEEATISE 

ox  THE 

Supreme    ^mut   oi   |ii"biciituit   %tt 

(IRELAND)  1877, 


SCHEDULE  OF  RULES, 

ORDERS  OF  COURT,  AND  F0R:SIS  OF  PROCEDURE, 

TABLE  OF  FEES,  &c., 

NOTES   OF  CASES. 

BY 

WILLIAM    DWYER     FERGUSON,     LL.D. 

AND 

GEO.  NAPIER   FERGUSON, 

BARKISTER-AT-LAW. 


DUBLIN  : 
HODGES,     FOSTER,     &    FIGGIS, 

BOOKSELLERS  TO  THE  HON.    SOCIETY  OF  KIKG'S  IXXS. 

1878. 


T 


\9 


^ 

^ 


PREFACE. 


The  principal  part  of  this  work — in  its  bulk  at  least — 
namely  that  which  professes  to  present  the  reader  with 
a  compendious  view  of  the  changes  introduced  into  our 
system  of  Judicature  by  the  Act  of  1877,  has  been  in 
preparation,  as  opportunity  permitted,  since  the  year 
1874,  Avhen  first  the  measure  began  to  loom,  in  what  has 
since  proved  to  be,  a  somewhat  distant  future.  In  the 
meanwhile  the  numerous  cases  which  had  been  decided 
on  the  corresponding  Act  in  England,  of  1873— the  pro- 
totype as  Avell  as  the  precursor  of  our  own — were 
collected  and  abstracted  from  the  reports,  according  as 
they  came  from  the  press.  The  latter  part  of  the  work, 
and  probably  the  more  important  for  immediate  practical 
use,  namely,  the  annotation  of  the  orders  of  the  Supreme 
Court  of  Judicature  in  Ireland,  promulgated  immediately 
before  the  Christmas  Holidays,  has  necessarily  been  pre- 
pared and  printed  with  a  rapidity  and  under  a  pressure 
by  no  means  agreeable   or    convenient,   and  under   cir- 


Vi  PRKFACE. 

cumstances  which,  it  is  to  be  feared,  may  have  left  some 
traces  of  haste.  Yet,  with  all  its  imperfections,  it  is 
hoped  the  work  may  afford  assistance  to  the  reader 
in  his  endeavour  to  comprehend  a  procedure  in  many 
respects  novel,  and  in  no  small  degree  perplexing,  from 
the  circumstance  that  it  has  to  be  traced  through  a 
variety  of  sources — some  more  or  less  appropriate  and 
in  places  at  times  little  expected — bits  of  procedure 
being  occasionally  embedded  in  clauses  dealing  with  the 
constitution  of  our  tribunals,  and  surrounded  by  enact- 
ments affecting  the  very  substance  and  body  of  tlie  law. 
This  odd  distribution  of  procedure  between  the  Statute 
itself,  the  Statutory  Rules  appended  to  it,  and  the  Orders 
of  the  Supreme  Court  framed  in  obedience  to  it,  is  attri- 
butable, doubtless,  to  the  exigencies  of  Parliamentary  law- 
makins:,  but  it  is  not  the  less  embarrassing  or  inconvenient. 
And  again,  the  dissociation  of  the  Statutory  Rules  of  Pro- 
cedure from  their  kindred  Orders  was,  probably,  a  neces- 
sary and  painful  operation  ;  but  it  is  calculated  to  lead,  and 
has  actually  led  to  grave  misconceptions  and  misunderstand- 
ings as  to  the  exact  scope  and  extent  of  the  change  intro- 
duced by  their  combined  effect.  In  order  in  some  degree 
to  mitigate  this  inconvenience,  in  the  present  edition  of  the 
Orders,  the  liberty  has  been  taken  of  placing  the  Statutory 
Rules  respectively  in  immediate  juxta  position  with  the 
Orders  upon  the  subject  to  which  they  relate,  so  that  the 
reader  may  have  presented  to   liis  view  the  entire,  and 


PREFACE.  Vll 

not  a  part,  of  the  procedure  inaugurated  by  the  Judica- 
ture Act. 

It  has  fallen  to  the  lot  of  one  of  the  present  Editors 
to  treat  of  the  Practice  and  Procedure  of  our  Courts  in 
times  long  gone  by  (1840),  and  again  under  another 
phase  of  procedure  in  1853,  and  in  adventuring  on 
a  third  and  still  more  extensive  system,  he  avails  him- 
self of  the  help  of  his  son,  who  had  the  opportunity 
of  witnessing  the  working  of  the  English  Judicature  Act, 
while  at  Chambers  in  London. 

31st  January,  1878. 
48,  MouNTJOY  Square. 


CONTENTS 


Introductory  View  of    the  Judicature    Past   and  Present, 

p.  1-52. 

PART  I. 

Judicatory, 
chap.  page 

I,  The  Supreme  Court  of  Judicature,  its  Rules  and  OfEcers  54 

II.  High  Court  of  Justice  and  its  Judges       ...  ...  SI 

III.  Divisions  of  the  High  Court  ...                  ...  ...  87 

IV.  Divisional  Courts                     ...                  ...  ...  90 

V.  Commissions  of  Assize  and  Xisi  Prius       ...  ...  03 

VI.  Court  Sittings  and  Vacations                      ./.  ...  97 
VII.  Nisi  Prius  Sittings  in  Dublin                      ...  ...  99 

VIII.   Election  Judges  ...                  ...                  ...  ...  100 

IX.  The  Court  of  Appeal               ...                 ...  ...  101 

PART  II. 

Jurisdiction. 

X.  General  Jurisdiction  transferred  to  High  Court  ...  106 

XI.  Not  transferred                        ...                  ...  ...  113 

XII.  Lunacy  Jurisdiction                ...                    ..  ...  115 

XIII.  Common  Law  Jurisdiction  of  Lord  Chancellor  ...  134 

XIV.  Landed  Estates  Court  Jurisdiction             ...  ...  143 

XV.  Probate  and  Admiralty  Jurisdiction          ..  ...  149 

XVI.  Criminal  Jurisdiction               ...                  ...  ...  154 

XVII.  Single  Judge  at  Chambers  or  Nisi  Prius    ...  ...  155 

XVIIL  Of  Court  of  Appeal                  ...                  ...  ...  loG 

PART  III. 
Distribution  of  Business. 

XIX.  Distribution  of  Business             ...                 ...  ...  164 

XX.  Option  of  Division  and  Transfers                  ...  ...  176 

A3 


PART  IV. 

CoNC'URKEXT  Administration  of  Law  and  Equity. 

{Section  27.) 

CHAP.  PAGE 

XXr.  Equitable  Claims  and  Replications,  Subs.  (1).  ...  184 

XXri.  Equitable  Defences  to  Equitable  Claims,  Subs.  (2).        ...  187 

XXIII.  Cross-Claims  against  Plaintiff,  Subs.  (3).    ...  ...  190 

XXIV.  Cross-Claims    against    Co-defendant    or    third    person, 

Subs.  (3)              ...                 ...                 ...  ...  199 

XXV.  Notice  to  bind  third  persons,  Subs.  (3)       ...  ...  205 

XXVI.  Incidental  Equities  recognised  Sub?.  (4)       ...  ...  211 

XXVII.  Equitable  Defence  ia  lieu  of  Injunction,  Subs.  (5^  ...  213 

XXVIII.  Stay  of  Proceedings,  Subs.  (5)...                 ...  ...  219 

XXIX.  Legal  Rights  recognized  Subs.  (6)                ...  ...  222 

XXX.  Plenary  Relief,  Subs.  (7)          ...                 ...  ...  223 

PART  V. 

Amendment  and  Declaration  of  Law. 

{Section  28.) 

XXXI.  Administration  of  Insolvent  Assets               ...  ...  228 

XXXII.  Express  Trusts  and  Statute  of  Limitations  ...  ...  231 

XXXIIL  Equitable  Waste     ...                 ...                 ...  ...  240 

XXXIV.  Merger  of  Estates  ...                 ...                 ...  ...  247 

XXXV.  Possessory  Actions  by  Mortgagors                ...  ...  253 

XXXVI.  Assignment  of  Glioses  in  Action                   ...  ...  258 

XXXVII.  Stipulations  not  of  the  essence  of  Contracts  ...  272 

XXXVIII.  Mandamus  and  Injunction        ...                  ...  ...  28l 

XXXIX.  Receivers                ...                 ...                 ...  ...  295 

XL.  Damages  for  Collision  at  Sea    ...                 ...  ...  303 

XLI.  Infant's  Custody  and  Education                    ...  ...  305 

XLII.  General  Prevalence  of  Equity   ...                 ...  ...  324 

PART  YI. 

The  New  Procedure. 

Xr.in.  The  New  Procedure                   ...                 ...  ...  338 

XLIV.  Pending  Causes      ...                 ...                 ...  ...  342 

XLV.  Actions                    ...                 ...                 ...  ...  353 

XLVr.  Writ  of  Summons   ...                 ...                 ...  ...  355 

XLV II.  Service  of  Writ       ...                 ...                 ...  ...  360 


CONTENTS. 


XI 


XLVIII.  Appearance 
XLIX.  Summary  Orders  before  Pleading 
L.  Parties  to  Actions  ... 
LI.  Pleadings 

LIT.  New  Rules  of  Pleading 

LIII.  Incidental  Matters  between  Pleading  and  Trial 
LIV.  Trial  and  Evidence 
LV.  Judgment  and  Execution 
LVI.  Costs 
LVII.  Appeals 

LVIII.  Final  Appeal  to  House  of  Lords 
LIX.  Interpleader 
LX.  Kemitter  of  Actions  to  Civil  Bill  Court 


PAGE 

363 
36G 
3G7 
371 
379 
389 
391 
399 
40:^ 
404-424 
425 
426 
427 


THE  SUPREME  COURT  OF  JUDICATURE  ACT,  IRELAND, 

1877. 
Arrangement  of  Clauses  ..  ...  ...  ...  429 

Statute  ...  ...  ...  ...  ...  432 


Schedule    of    Rules, 
Annexed  to  Statute. 
Form  of  Action  and  Summons 
Writ  of  Summons 
Interpleader 
Appearance 
Parties 
Pleading 

New  Trial  Motions 
Appeals 
Exceptions  from  Rules 


494 
494 
495 
495 
496 
497 
499 
499 
600 


RULES  OF  COURT. 

[N.B. — The  Schedule  Fades  rdating  to  each  subject  a^-e  prefixed  to 

the  corresponding  Order.^ 
No.  of  Order. 

I.  Writ  of  Summons,   Form  of,  &c.,  Action  to  be  com- 
menced by  Writ                   ...                  ...  ...           501 

II.  Indorsement  of  Claim               ...                 ...  ...          504 

III.  Indorsement  of  Address            ...                  ...  -..           508 

IV.  Writs  of  Summons,  Issuing,  Filing,  &c.     ...  ...          509 

V.  Concurrent  Writs  ...                  ...                  ...  ...           511 

VI.  Disclosure  by  Solicitors  and  Plaintiffs         ...  ...          512 


XU  CONTENTS. 

No.  of  Order.  Page 

VII.  Renewal  of  Writ    ...                 ...  ...  ...  612 

VIII.  Service  of  Writ  of  Summons     ...  ...  ...  614: 

IX.  Substituted  Service                   ...  ...  ...  515 

X.  Service  out  of  the  Jurisdiction  ...  ...  517 

XI.  Appearance           ...                 ...  ...  ...  522 

XII.  Default  of  Appearance              ...  ...  •-.  525 

XIII.  Leave  to  Defend  where  Writ  specially  indorsed  ...  529 

XIV.  Application   for   Account   where   Writ   indorsed    under 

Order  II.,  Rule  5                   ...  ...  ...  533 

XV.  Parties  and  Notice  Parties       ...  ...  ...  534: 

XVI.  Joinder  of  Causes  of  Action      ...  ...  ...  546 

XVII.  Actions  by  and  against  Lunatics  and  Persons  of  Unsound 

Mind                   ...                 ...  ...  ...  549 

XVIIL  Pleading  Generally                   ...  ...  ...  550 

XIX.  Pleading  Matters  arising  pending  the  Action  ...  561 

XX.  Statement  of  Claim                   ...  ...  ...  562 

XXL  Defence                  ...                 ...  ...  ...  564 

XXII.  Discontinuance      ...                 ...  ...  ...  568 

XXIII.  Reply  and  Subsequent  Pleadings  ...  ...  570 

XXIV.  Close  of  Pleadings                     ...  ...  ...  571 

XXV.  Issues                     ...                 ...  ...  ...  571 

XXVI.  Amendment  of  Pleadings         ...  ...  ...  572 

XXVIL  Demurrer               ...                 ...  ...  577 

XXVIIL  Default  of  Pleading                   ...  ...  ...  583 

XXIX.  Service  of  Notices,  &c.             ...  ...  ...  588 

XXX.  Payment  into  Court  in  Satisfaction  ...  ...  590 

XXXI.  Discovery  and  Inspection         ...  ...  ...  593 

1.  Interrogatories              ...  ...  ...  593 

2.  Production  of  Documents  ...  ...  604 

XXXII.  Admissions             ...                  ...  ...  ...  612 

XXXIII.  Inquiries  and  Accounts             ...  ...  ...  613 

XXXIV.  Questions  of  Law  ...                 ...  ...  ...  614 

XXXV.  Trial   ...                 ...                 ...  ...  ...  617 

XXXVL  Evidence  generally                    ...  ...  ...  627 

XXXVn.  Evidence  by  Affidavit              ...  ...  ...  629 

XXXVIII.  New  Trial            ...                  ...  ...  ...  631 

XXXIX.  Motion  for  Judgment                ...  ...  ...  C33 

XL.  I'lntry  of  Judgment                  ...  ...  ...  637 

XLI.  Execution               ...                 ...  ...  ...  638 

XLII.  Writs  of  Fieri  Facias  and  Elegit  ...  ...  645 

XLIII.  Attachment            ...                 ...  ...  ...  645 

XLIV.  Attichment  of  Debts                 ...  ...  ...  647 

XLV.  Cliarging  of  Stock  or  Shares,  and  Distringas  ...  651 

XLVI.  Writ  of  .Se  lue-tration               ...  ...  ...  652 

XLVIL  Writ  of  Possession                     ..  ..'.  ...  654 


CONTENTS. 


XIU 


No.  of  Order.  Page 

XLYIII.  Writ  of  Delivery     ...                 ...                 ...  ...  654 

XLIX.  Change  of  Parties  by  Death,  &c.                   ...  ...  G54 

L.  Transfers  and  Consolidation       ...                  ...  ...  660 

LI.  Interlocutory  Orders  as  to  Injunctions  or  Interim  Preser- 
vation of  Property                  ...                 ...  ...  662 

LII.  Motions  and  other  Applications                     ...  ...  665 

LIII.  Sittings  at  Chambers                  ...                  ...  ...  667 

LIV.  Nisi  Prius  Sittings  in  Dublin     ...                  ...  ...  671 

LV.  Security  for  Costs  ...                  ...                  ...  ...  672 

LVI.  Notices  and  Paper,  &c.              ...                 ...  ...  672 

LVII.  Time    ...                 ...                 ...                 ...  ...  673 

LYIII.  Appeals                   ...                 ...                 ...  ...  675 

LIX.  Effect  of  Non-compliance           ...                 ...  ...  679 

LX.  Sittings  and  Vacations               ...                  ...  ...  679 

LXI.  Short-hand  Reporting                 ...                  ...  ...  681 

LXII.  Applications  for  remitting  Ejectments  for  Non-payment 

of  Rent  to  Civil  Bill  Courts  ...                 ...  ...  682 

LXIII.  Appeals  from  Recorder  and  Chairman  of  Dublin  ...  682 

LXIV.  Courts  of  Probate  or  Court  for  Matrimonial  Causes,  &c.  682 

LXV.  Interpretation  of  Terms             ...                 ...  ...  683 


APPENDIX  A. 

Pakt  I. 

Writs  of  Summons. 

Form. 

1.  Forms  of  Writ  of  Summons,  &c.              ...                  ...  ...       684 

2.  Writ  of  Summons  (Summary  Bills  of  Exchange  Acts)  ...       685 

3.  Writ  for  Service  out  of  the  Jurisdiction,  or  where  notice  in  lieu 

of  service  is  to  be  given  out  of  the  Jurisdiction       ..  ...       686 

4.  Notice  of  Writ  in  lieu  of  Service  to  be  given  out  of  the  Jurisdic- 

tion              ...                 ...                 ...                 ...  ...       687 

5.  Form  of  Memorandum  for  Renewed  Writ                    ...  ...       688 

6.  Memorandum  of  Appearance                    ...                 ...  ...       688 

7.  Notice  to  Limit  Defence  as  required  by  Order  XL,  9  ...       688 


Part  IT. 

Section  I. — General  Endorsements. — In  matters  assigned  by 
the  36th  section  of  the  Act  to  the  Chancery  Division  :— 

1.  Creditor  to  Administer  Estate  ...  ...  ...       689 

2.  Legatee  to  Administer  Estate  ...  ...  ...       689 

3.  Partnership        ...  ...  ...  ...  ...       689 


XIV  CONTENTS. 

Section:  T. — continued.  page 

4.  By  Mortgagee                  ...                  ...  ...  •••  689 

5.  Bj'  Mortgagor                  ...                 ...  ...  ...  689 

6.  Raising  Portions              ...                  ...  ...  ...  689 

7.  Execution  of  Trusts        ..                   ...  ...  ...  689 

8.  Cancellation  or  Rectification  of  Deeds,  &c.  ...  ...  690 

9.  Specific  Performance       ...                 ...  ...  •••  690 

Section  II.  Money    Claims    where    no    special    Indorsement   under 

Order  II.,  Rule  3                    ...  ...  ...  690 

Section  III.  Indorsement  for  Costs,  &c.       ...  ...  ...  692 

Section'  IV.  Damages  and  other  Claims      ...  ...  ...  693 

Recovery  of  Land  (a)  or  (6)     ...  ...  ...  694 

Section    V.   Special  Indorsements  under  Order  II.,  Rule  3  ...  697 

Section  VI.  Indorsements  of  Character  of  Parties  ...  ..  698 


APPENDIX  B. 

Form. 

1.  Notice  by  Defendant  to  Third  Party 

2.  Confession  of  Defence 

3.  Indorsement — Statement  of  Claim 

4.  Notice  of  Counterclaim  to  third  party 

5.  Notice  of  Payment  into  Court 

6.  Acceptance  of  Sum  paid  into  Court 

7.  Interrogatories  ... 

8.  Answer  to  Interrogatories    ... 

9.  AflSdavit  as  to  Documents    ... 

10.  Notice  to  Produce  Documents  referred  to  in  Pie: 

11.  Notice  to  Inspect  Documents 

12.  Notice  to  Admit  Documents 

13.  Setting  Down  Special  Case  ... 

14.  Notice  of  Trial  ... 

15.  Certificate  of  OflBcer  after  Trial  by  a  Jury 


idin 


G99 
700 
701 
701 
701 
701 
702 
702 
702 
703 
704 
704 
705 
706 
706 


APPENDIX  C. 

Pleadings. 
Form. 

1.  Account  Stated — Statement  of  Claim      .  .  ...  ...  706 

2.  Administration  of  an  Estate— (Claim  where  no  will)  ...  707 
Statement  of  Defence — Reply                  ...                 ...  ...  708 

3.  Administration  of  an  Estate — (Claim  where  will)     ...  ...  709 

Statement  of  Defence — Reply  ...  ...  ...  710 

4.  Administration  of  an  Estate— (Claim  where  breach  of  ti-ust)       ...  711 
Statement  of  Defence — Reply                   ...                 ...  ...  714 

5.  Agent — Statement  of  Claim  ...  ..  ...  716 

Statement  of  Defence — Reply  ...  ...  ...  717 


COATENTS.  XV 

Form.  P*°^ 

6.  Bill  of  Exchange— Claim      ...                 ...                 ...  ...  718 

Statement  of  Defence— Reply                  ...                 ...  •••  718 

7.  Bill  of  Exchange  and  Consideration  of  Claim             ...  ...  720 

8.  Charter-Party— Statement  of  Claim       ...                 ...  ...  721 

Statement  of  Defence— Reply                    ...                  ...  •••  722 

Joinder  of  Issue...                  ...                  ...                  •••  •••  '"* 

9.  False  Imprisonment — Statement  of  Claim                   ...  ...  724 

Statement  of  Defence — Reply                   ...                  ...  •••  725 

10.  Foreclosure— Statement  of  Claim            ...                 ...  •••  726 

The  Defence  and  Counter-claim               ...                 ...  ...  727 

The  Reply  of  the  Plaintiff    ...                  ...                  .-•  •••  731 

11.  Fraudulent  Misrepresentation — Statement  of  Claim  ...  ...  732 

Statement  of  Defence — Reply                  ...                 •••  •••  733 

12.  Guarantee — Statement  of  Claim              ...                 ...  •••  734 

13.  Recovery  of  Land,  Rent,  &c.— Statement  of  Claim  ...  ...  735 

14.  Negligence — Statement  of  Claim             ...                 ...  •••  736 

Statement  of  Defence — Reply                   ...                 •■•  •••  737 

15.  Promissory  Note — Statement  of  Claim    ...                  ...  •••  737 

Statement  of  Defence — Reply                    ...                  ...  ••■  738 

16.  Recovery  of  Land  and  Mesne  Profits— Statement  of  Claim  ...  738 
Defence  and  Counter-claim                      ...                 ...  .••  739 

Joinder  of  Issue                     ...                 ...                 ••■  •■•  '^'^^ 

17.  Recovery  of  Land  and  Mesne  Profits — Statement  of  Claim  ...  740 
Statement  of  Defence — Reply                  ...                 ...  ••.  741 

18.  Trespass— Statement  of  Claim                 ...                 ...  ..•  742 

Statement  of  Defence — Reply                  ...                 ...  •••  743 

19.  Statement  of  Claim  (the  Vessel  "Ida")                     ...  ...  743 

Statement  of  Defence — Reply                   ...                  ...  •••  745 

20.  Demurrer           ...                  ...                  ...                    ••  •■•  745 

21.  Memorandum  of  Entry  of  Demurrer  for  Argument    ...  ...  745 

APPENDIX  D. 

Judgments. 

Forms  of  Judgment  : 

1.  Default  of  Appearance    and    Defence    in   case   of  Liquidated 

Demand     ...                 ...                 ...                 ••.  ■••  746 

2.  Judgment  in  Default   of  Appearance  in  Action  for  Recovery 

of  Land     ...                 ...                  ..                 ...  •••  746 

3.  Judgment  in  Default  of  Appearance  and  Defence  after  Assess- 

ment of  Damages         ...                 ...                 ...  ■••  74b 

4.  Judgment  at  Trial  by  Judge  without  a  Jury       ...  ...  747 

5.  Judgment  after  Trial  by  a  Jury         ...                  ...  •••  '"^' 

6.  Judgment  upon  Motion  for  Judgment                  ...  .■•  748 


APPENDIX  E. 


Execution. 


FoRsis  OF  Praecipe  : 

1.  Fieri  Facias 

2.  Elegit 

3.  Venditioni  Exponas 

4.  Writ  of  Sequestration 

5.  Writ  of  Possession 

6.  Writ  of  Delivery 

7.  Writ  of  Attachment 


748 
749 
749 
749 
750 
750 
750 


APPENDIX  F. 


FoitMS  OF  Writs  : 

1.  Writ  of  Fieri  Facias 

2.  Writ  of  Venditioni  Exponas 

3.  Writ  of  Possession 

4.  Writ  of  Delivery 

5.  Writ  of  Attachment 

6.  Writ  of  Sequestration 


751 
752 
753 
753 
754 
755 


APPENDIX  G. 

Form. 

1.  Cause  Book 

2.  General  Summons  in  Chambers  by  Judge 


756 
757 


Schedule  of  Court  Fees,  &c. 


758 


PENDING    PROCEEDINGS. 


ORDER 

IN 

CHANCERY    DIVISION. 


The  Master  of  the  Eolls  directs  that,  subject  to  any  Special 
Order  which  may  be  made  in  any  Cfcnse,  Matter,  or  Proceeding 
pending  in  his  Court  on  the  1st  of  January,  1878,  the  following 
course  of  procedure  shall  be  adopted  : — 

That  all  Causes,  Matters,  and  Proceedings,  except  Causes  in 
which  neither  Notice  of  ISIotion  for  a  Decree  has  been  served, 
nor  Eeplication  has  been  filed,  before  the  1st  January,  1878, 
shall,  so  far  as  relates  to  the  form  and  manner  of  procedure,  be 
continued  and  concluded  in  the  same  manner  as  they  would 
have  been  in  the  High  Court  of  Chancery. 

That  all  such  pending  Causes  in  which  up  to  the  1st  January, 
1878,  no  Notice  of  Motion  for  a  Decree  has  been  served,  or 
Eeplication  filed,  shall  be  continued  in  the  same  manner  as  they 
would  have  been  continued  in  the  High  Court  of  Chancery  up 
to  the  time  at  which  such  Notice  of  Motion  or  EepHcation  could 
have  been  served  or  filed,  and  shall  from  that  period  be  con- 
tinued according  to  the  ordinary  course  of  the  High  Court  of 
Justice. 

That  any  party  to  a  pending  Cause  may  apply  by  Motion  on 
Notice,  that  for  special  reasons  a  direction  may  be  given  for 
continuing  such  Cause  according  to  the  ordinary  course  of  the 
High  Court  of  Justice. 

[An  Order  in  identical  terms  has  been  made  by  the  Vice- 
Chancellor.] 


Xviii  PENDING    PROCEEDINGS. 

Okder  in  Common  Law  Division, 

The  Queen's  Bench  order  is  as  follows  : — 

"  In  order  to  avoid  the  expense  and  inconvenience  of  sepa- 
rate applications  for  directions  as  to  the  form  and  manner  of 
procedure  in  actions  commenced  before  the  1st  January,  instant, 
it  is  ordered  that,  in  the  absence  of  a  special  order  to  the  con- 
trary in  any  particular  case,  actions  commenced  before  the  1st 
January  instant,  shall  be  continued  as  follows,  viz.  : — 

(rt).  Actions  in  which  judgment  shall  be  entered  for  default 
of  pleading  shall  be  prosecuted  and  carried  on  according 
to  the  practice  of  the  late  Court  of  Queen's  Bench. 

(h).  Actions  in  which  defence  has  been  (or  shall  be)  taken, 
but  in  which  the  abstract  of  the  pleadings  and  issues  in 
fact  has  not  been  already  lodged,  shall  be  continued 
according  to  the  practice  of  the  late  Court  of  Queen's 
Bench  until  the  filing  of  the  last  pleading  ;  but  all  sub- 
sequent proceedings  shall  be  taken  according  to  the 
practice  of  the  High  Court  of  Justice,  as  if  such  action 
had  been  commenced  therein,  and  as  if  the  pleadings 
herein  had  been  closed  (within  the  meaning  of  Eule 
XXIV.  of  the  said  High  Court)  at  the  time  of  the  filing 
of  such  last  pleading. 

(c).  Actions  in  which  the  abstract  of  the  pleadings  and  issues 
in  fact  has  been  already  lodged  shall  be  continued  accord- 
ing to  the  practice  of  the  late  Court  of  Queen's  Bench." 

[An  Order  similar  to  the  above,  viutatis  mutandis,  and  alike  in 
effect,  have  been  made  in  the  Common  Pleas  and  Exchequer 
Divisions.] 


TABLE  OF  JUDICATURE  ACTS. 


TABLE  A. 

Of  Sections  of  Irish  Judicature  Act,  showing  the  correspond- 
ing Sections  of  the  English  Judicature  Acts,  ]873  &  1875. 


IRISH    JUDICATURE    ACT. 
1S7T. 
Section. 

1.  Short  Title 

2.  Commencement  of  Act 

3.  Interpretation  of  Terms 

4.  One  Supreme  Court 

5.  Division  of  Supreme  Court 

6.  (,'onstitution  of  High  Court 

7.  Judges  of  Landed  Estates  Court     ... 

8.  Judges  of  Court  of  Bankruptcy' 

9.  Judges  of  Court  of  Admiralty 

10.  Constitution  of  Court  of  Appeal     ... 

11.  Vacancies  by  Judges'  Resignation,  &c. 

12.  Qualitication  of  Judges 

13.  Tenure  of  Office  of  Judges 

14.  Precedence  of  Judges 

15.  Plights  of  existing  Judges 

IG.  Extraordinary  Duties  of  Judge 
17.  Salaries  of  existing  Judges 
IS.  Salaries  of  future  Judges 

19.  Pensions  of  future  Judges 

20.  Salaries  and  Pensions,  how  paid 

21.  Jurisdiction  of  High  Court 

22.  Jurisdiction  not  transferred  to  High  Court 

23.  Jurisdiction  transferred  to  Court  of  Appeal 

24.  Appeals  from  High  Court 

25.  Transfer  of  Pending  Business 

26.  Rules  as  to  exercise  of  Jurisdiction 

27.  Law  and  Equity  to  be  concurrently  administrated 

28.  Rules  of  Law  on  certain  points 

29.  Abolition  of  Terms 

30.  Vacation 

31.  Sittings  in  Vacation 

32.  Jurisdiction  of  Judges  of  High  Court  on  Circuit 

33.  Trial  by  Jury  in  Dublin 

34.  Divisions  of  High  Court 

35.  Rules  of  Court  for  Distribution  of  Business        .  . 

36.  Assignment  of  Business  to  Divisions 

37.  Option  of  Plaintiff  to  Choose  Divisions 

38.  Power  of  Transfer 

89.  Procedure  Before  Land  Judges 

40.  Application  to  Extend  Receiver 

41.  Sittings  in  Dublin  and  on  Circuit   ... 


ENGLISH. 


isrs. 

Section. 
1 
2 
100 
3 
4 


11 
12 
11 
13 
14 
15 
16 
17 
18 
19 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
33 
34 

.36 


37 


ISTa. 
Section. 


10 


11 


TABLE    OF    JUDICATURE    ACTS. 

Table  A. — continued. 


IS" 

'IRISH    JUDICATURE   ACT. 

ENGI 

1S7:!. 

.ISH. 

1875. 

Sec 

ion. 

Section. 

Section. 

42. 

Provisions  under  Chancery  Amendment  Act,  1858 

43. 

liota  of  Judges  for  Election  Petitions 

38 

a. 

Power  of  One  or  More  Judges 

39 

45. 

Divisional  Courts 

40 

46. 

Divisional  Courts  for  Business  of  Q.B.  C.P.  Ex.  D.'s 

41 

47. 

Business    of  Judges  of  Chancery  and    Probate 

Divisions 

42 

48. 

Cases  Reserved  for  Divisional  Courts  and  Court 

49. 

of  Appeal 
Land  Cases  Reserved   ... 

46 

50. 

Provision  for  Crown  Cases  pLCserved 

47 

51. 

Motions  for  New  Trial  to  be  heard  by  Divisional 

Courts 

48 

52. 

What  Orders  shall  not  be  Subject  to  Appeal 

49 

53. 

Costs 

54. 

Discharging  Orders  Made  In  Chambers 

50 

55. 

Provision  for  the  Absence  of  a  Judge 

51 

56. 

Power  of  Single  Judge  in  Court  of  Appeal 

62 

12 

57. 

Constitution  of  Court  of  Appeal 

4 

58. 

Arrangement  of  Business  of  Court  of  Appeal     ... 

55 

59. 

Assessors 

56 

60. 

Provisions  as  to  Arbitration 

61. 

As  to  making  Rules  of  Court  before  or  after  Act 

68 

17 

62. 

Circuits  and  Assizes 

... 

23 

63. 

Winter  Assizes 

64. 

Rules  of  Court  of  Probate  to  be  Rules  of  High  Court 

18 

65. 

Criminal  Procedure 

19 

66. 

Act  not  to  Effect  Rules  of  Evidence 

20 

67. 

Saving  existing  Procedure  when  not  inconsistent 

21 

68. 

Additional  Power  as  to  Regulation  of  Procedure 

24 

69. 

Orders  and  Rules  to  be  laid  before  Parliament ... 

25 

70. 

Councils  of  Judges  to  consider  Procedure 

75 

71. 

Acts  of  Parliament  to  be  read  as  applying 

76 

72. 

Transfer  of  existing  Officers 

77-81 

73. 

Appointment  of  future  Officers 

84 

34 

74. 

Commissioners  to  Administer  Oaths 

82 

75. 

Receiver  Master 

76. 

Salaries  and  Pensions  of  Officers     ... 

85 

77. 

Clerks  of  Assize  and  Nisi  Prius 

78. 

Solicitors  and  Attorneys 

87 

79. 

Rules  of  law  to  apply  to  inferior  Courts 

91 

SO. 

Transfer  of  Books  and  Papers  to  Court  of  Judi- 

cature 

92 

81. 

Saving  as  to  Circuits    ... 

03 

82. 

Saving  as  to  Lord  Chancellor 

94 

83. 

Great  Seal  in  Commission 

98 

84. 

Fi.xiiig  and  Collection  of  Fees 

2G 

85. 

Unclaimed  Dividends  in  Bankruptcy 

... 

32 

TABLE    OF   JUDICATURE    ACTS. 


TABLE  B. 

Of  Sections  of  the  English  Judicature  Acts  1873  and  1875, 

SHOWING     THE     CORRESPONDING     SECTIONS     OF    THE    IrISH    JUDI- 
CATURE  Act,  1877. 


J.  A.  1873. 
Section 

1.  Short  Title 

2.  Commencernent  of  Act 

3.  Union  of  existing  Courts 

4.  Division  of  Supreme  Court 

5.  Constitution  of  High  Court 

6.  Repealed 

7.  Vacancies  by  Judges 

8.  Qualifications  of  Judges 

9.  Repealed 

10.  Repealed 

11.  Saving  Kights  of  Judges 

12.  Extraordinary  Duties  of  Judges 

13.  Salaries  of  future  Judges 

14.  Eetiring  Pensions  of  future  Judges 

15.  Salaries  and  Pensions,  how  paid 

16.  Jurisdiction  of  High  Court 

17.  Jurisdiction  not  transferred 

18.  Jurisdiction  transferred  to  Court  of  Appeal 

19.  Appeals  from  High  Court 

20.  Repealed 

21.  Repealed 

22.  Transfer  of  Pending  Business    ... 

23.  Rules  as  to  exercise  of  Jurisdiction 

24.  Law  and  Equity,  concurrent  administration  of 

25.  Rules  of  Law  upon  certain  points 
2K.  Abolition  of  Terms 

27.  Vacation 

28.  Sittings  in  Vacation 

29.  Jurisdiction  of  Judges  on  Circuit 

SO.  Sitting  for  Trials  in  Loudon  and  Middlesex... 

31.  Divisions  of  High  Court  of  Justice 

32.  Power  to  Alter  Divisions 

33.  Distribution  of  Business — Rules  of  Court     ... 

34.  Assignment  of  Business  to  Division 

36.  Power  of  Transfer  ... 

37.  Sittings  in  London  and  Westminster  and  on  Circuit 

38.  Rota  of  Judges  for  Election  Purposes 

39.  Power  of  One  or  More  Judges  ... 

40.  Divisional  Courts  of  High  Court 

4L  Divisional  Courts,  Cases  Reserved  for, 


J.  A.  1ST7. 
Section 
1 
2 
4 
5 
6 

n 

12 


;  &  17 

IG 
18 
19 
20 
21 
22 
23 
24 


25 
26 
27 
28 
29 
30 
31 
32 


34 

35 
36 
38 
41 
43 
44 
45 
4G 


TABLE  OF  JUDICATURE  ACTS. 


Table  B. — continued. 


J.  A.  isrs. 

Section 

42.  Distribution  of  Business  of  Chancery  and  Probate  Division 

45.  Appeals  from  Inferior  Courts    ... 

46.  Cases  Reserved  for  Divisional  Courts 

47.  Provision  for  Crown  Cases  Reserved 

48.  Motions  for  New  Trials  Before  Divisional  Courts 

49.  Orders  not  Subject  to  Appeal    ... 

50.  Discharging  Orders  made  at  Chambers 

51.  Provision  for  Absence  of  Judge... 

52.  Power  of  Single  Judge  in  Court  of  Appeal  ... 

55.  Arrangement  of  Business  of  Appeal 

56.  Referees  and  Assessors 

75.  Council  of  Judges  as  to  Procedure 

76.  Acts  of  Parliament  to  former  Courts 

77.  Transfer  of  Officers  to  Supreme  Court 

81.  Doubts  as  to  Status 

82.  Commissioners  to  Administer  Oaths 

84.  Duties,  Appointment,  and  Removal  of  Officers 

85.  Salaries  and  Pensions  of  Officers 

86.  Patronage  not  provided  for 

87.  Solicitors  and  Attorneys 

91.  Rules  of  Law  to  apply  to  Inferior  Courts    ... 

92.  Transfer  of  Books  and  Papers 

93.  Savitig  as  to  Circuits 

94.  Saving  as  to  Lord  Chancellor 

J.  A.  1875. 

4.  Constitution  of  Court  of  Appeal 

5.  Tenure  of  Office  of  Judges,  &c. 

6.  Precedence  of  Judges 

10.  Rules  of  Law  on  Certain  Points 

11.  Option  of  Division 

12.  Sittings  of  Court  of  Appeal 

17.  Provisions  for  Making  Rules  of  Court 

18.  Rules  of  Court  of  Probate 

19.  Criminal  Procedure 

20.  Rules  of  Evidence  ... 

21.  Saving  of  Existing  Procedure   ... 

22.  Right  to  have  Issues  Submitted  to  Jury 

23.  Circuits  and  Assizes 

24.  Eegulation  of  Procedure  Rules... 

25.  Orders  and  Rules  laid  before  Parliament     ... 

26.  Fees,  Fixing  and  Collecting     ... 
32.  Unclaimed  Dividends  in  Bankruptcy 
34.  Vacancies  in  Offices 


J.  A.  1877- 
Section 

47 

48 
50 
51 
52 
54 
55 
56 
58 
59 
70 
71 
72 
72  &  13 
74 
74 
76 

78 
79 
80 
81 
82 

J.  A.  1877. 
10&57 
5  &  13 

14 

27 

37 

56 

61 

64 

65 

66 

67 
48  &  2 

62 

68 

69 

84 

85 


TABLE  OF  JUDICATURE  ORDERS. 


TABLE  C. 

Orders  of  the    Supreme    Court    of    Judicature   in  England 
AND  Ireland,  showing  the    corresponding    Order  in  each 

CASE    respectively. 


English                                                     TiTT  V 
Order.                                                       iiii^c. 

Irish 
Older. 

1.  Form  and  Commencement  of  Action  (Schedule,  Rule  1.) 

2.  Writ  of  Summons  and  Procedure 

Order  1 

3.  Indorsements  of  Claim 

2 

4.  Indorsement  of  Address 

3 

5.  Issue  of  Writ  of  Summons 

4 

6.  Concurrent  Writs 

5 

7.  Disclosure  by  Solicitors  and  Plaintiff 

6 

8.  Renewal  of  Writ 

7 

9.  Service  of  Writ  of  Summons 

8 

10.  Substituted  Service 

9 

11.  Service  out  of  Jurisdiction 

10 

12.   Appearance 

11 

13.  Default  of  Appearance 

12 

14.  Leave  to  defend  specially  indorsed  Writ 

13 

15.  Account,  application  for 

14 

16.  Parties 

15 

17.  Joinder  of  Causes  of  Action 

16 

18.  Actions  by  and  against  Lunatics 

17 

19.  Pleading  generally 

18 

20.  Pleading  matter  arising,  pending  Action     ... 

19 

21.  Statement  of  Claim 

20 

22.  Defence 

21 

23.  Discontinuance 

23 

24.  Reply  and  subsequent  Pleadings 

23 

25.  Close  of  Pleadings  ... 

24 

26.  Issues 

25 

27.  Amendment  of  Pleadings 

26 

28.  Demurrer 

27 

29.  Default  of  Pleading 

28 

—    Service 

29 

30.  Payment  into  Court 

30 

31.  Discovery  and  Inspection 

31 

32.  Admissions 

32 

33.  Inquiries  and  Accounts 

33 

34.  Questions  of  Law    ... 

34 

35.  District  Registries  ... 

36.  Trial    ... 

35 

37.  Evidence  Generally 

36 

38.  Evidence  by  Affidavit 

37 

39.  Motion  for  New  Trial 

38 

TABLE    OF    JUDICATURE    ORDERS. 


Table  C. — continued. 


English 
Order. 


TITLE. 


40.  Motion  for  Judgment 

41.  P2ntry  of  Judgment 

42.  Execution  .  . 

43.  Fieri  Facias  and  Elegit 

44.  Attachment 

45.  Attacliment  of  Debts 

46.  Charging  Stock  and  Distringas 

47.  Writ  of  Seque.stration 

48.  Writ  of  Possession  ... 

49.  Writ  of  Delivery  of  Property     ... 

50.  Change  of  Parties  by  Deatli,  &c. 

51.  Transfers  and  Consolidation 

52.  Interlocutory  Orders  as  to  Mandamus,  &c. 

53.  Motions  and  Other  Applications 

54.  Applications  at  Chambers 

—  Nisi  Prius,  Dublin... 

55.  Costs    ... 

—  Security  for  Costs  ... 

56.  Notices  and  Papers 

57.  Time    ... 

57a  Divisional  and  Other  Courts     ... 

58.  Appeals 

59.  Effect  of  Non-Compliance 

60.  OfBcers  ...  ...  J. A.  1877,  s.  72 

61.  Sittings  and  Vacations 

—  Shorthand  Reporting 

—  Remitter  of  Ejectments 

—  Appeals  from  Recorder  and  Chairman  of  Dublin 

62.  Exceptions  from  Orders 

63.  Interpretation  of  Terms 


Irish 
Order. 

39 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 
51 
52 
53 
54 

55 
56 
57 

58 
59 

60 
61 
62 
63 
64 
65 


TIME    TABLE 


FOR   ALL   PROCEEDINGS   TO   BE   TAKEN   UNDER   THE 
JUDICATURE    ACT    AND   RULES. 


ACCOUNT,  summary  order 

for Application  for  may  be  at  any  time 

after  time  for  entering  appearance 

expired 

AFFIDAVITS,  by  plaintiff 
by  way  of  evidence 

on  trial Within  14  days  (in  the  absence   of 

special   agreement   or   order)    after 
order  for  evidence  to  be  taken     .     . 


I 


by  defendant 


by  plaintiff  in  reply 


Within  14  days  after  delivery  of  plain- 
tiff's list  (in  absence  of  special  agree- 
ment or  order)     


Within  7  days  after  expiration  of  said 
14  (in  absence  of  special  agreement 
or  order)     


AMENDMENT,  statement 

of  claim Once,  without  leave  iefore  expiration 

of  tiine  limited  for  reply  (3  weeks), 
or  if  no  defence  be  delivered  within 
4  weeks  of  last  appearance      .    .    . 

copy  of  amendment  .  Copy  of  amended  statement  to  be  deli- 
vered to  new  defendant,  at  the  time 
when  he  is  served  with  writ  of  sum- 
mons, or  afterwards  within  4  days 
after  his  appearance 

of  counter  claim  or  set 

off May  amend  without  leave  any  time 

before  expiration  of  time  allowed 
defendant  for  pleading  to  the  reply 
(3  weeks)  ;  if  no  reply  before  expi- 
ration of  28  days  from  filing  defence 


application  to  disallow, 
amendment     .    .    . 


After  amendment  under  above,  oppo- 
site party  may  within  8  days  from 
delivery  of  amended  Pleading, 
apply  to  have  such  disallowed 
either  entirely  or  in  part    .  '  . '  .     . 


Order  and  Rule. 


Okd.  XIV.  R.  2. 


Oed.  XXXVII. 
R.  1. 


Okd.  XXXVI 
R.  2. 


Oed.  XXXVII, 
R.  3. 


Ord.  XXVI. 
R.  1. 


Oed.  XV.  R.  16. 


Oed.  XXVI. 
R.  2. 


Oed.  XXVL 
R.  3. 


XXVI 

AMENDMENT— co?i. 

when  leave  to  amend 
ceases     


of  writ  of  summons 
APPEAL,  from  Chambers , 


from  interlocutory  or- 
ders ...... 

from  final  order  .    .     . 

from  winding-up  order, 
or  order  in  Bank- 
ruptcy, or  other 
matter 

from  exparte  applica- 
tion refused     .     .     . 

notice  of,  from  judg- 
ment       

from  interlocutory  or- 
der     

notice  by  respondent 
in  appeal  from  final 
judgment    .... 

like  from  interlocutory 
order     

APPEAL  to  House  of  Lords 


in  case  of  disability 


in  case  of  absence   .    , 

APPEARANCE  within  the 
jurisdiction     .    .    . 


TIME   TABLE. 


If  leave  to  amend  obtained,  and  party 
does  not  amend  within  time 
allowed,  or  if  no  time  limited, 
ivitMn  14  days  froTn  leave,  such 

order  is  void Ord.  XXVL 

R.  6. 
At  any  time  by  leave  of  Court  or 

Judge Ord.  XXVL 

R.  10. 
To    Queen's  Bench,   Common   Pleas, 
and  Exchequer  Divisions,  within  8 
days    after  the   decision  appealed 

against       Ord.  LIII. 

R.  7. 

Within  21  days  from  date  of  order       Ord.  LVIII. 

R.  11. 
Within  one  year 

Within  21  days  from  date  of  order 

except  by  leave Ord.  LVIIL 

R.  5. 
Within  4  days  from  date  of  refusal, 
or  withhi  such  enlarged   time   as 

Court  may  allow Ord.  LVIIL 

R.  6. 

Must  be  a  14  days'  notice    ....        Ord.  LVIII. 

R.  2. 

Must  be  a  4  days'  notice Ord.  LVIII. 

R.  2. 

Subject  to   special   order,  respondent 

must  give  an  8  days'  notice   .    .    .       Ord.  LVIII. 

R.  3. 

Must  be  a  2  days'  notice Ord.  LVIII. 

R.  3. 

Within  1  year  from  date  of  last 
decree,  order,  or  judgment ;  ap- 
pealed from  Rouse  of  Lords'  Stand- 
ing Orders. — /.    November,  1876. 

Within  1  year  after  the  removal  of 
the  same. — H.  L.  S.  0.  I.      .     .     . 

Not  longer  than  5  years  from  date  of 
last  decree. — L.  S.  0.  I.    .    .    .     . 

Must  be  entered  by  Defendant  within 
8  days  of  service  of  writ. — App.  A. 
Part  I.,  Form  1 


APPEARANCE— coTi. 

when   not  within  the 
jurisdiction      .    .    . 


when  third  person 
served  with  notice 
under  Ord.  XV.  R. 
18 

notice  of  appearance    . 
default  of 


TllIE    TABLE. 


Within  the  time  limited  in  the  order 
giving  leave  to  serve  writ  out  of 
jurisdiction Qed.  X.  R,  3 


limit     of     time    for 
appearing   .     .     .     . 


BILL    OF    EXCHANGE, 
leave  to  defend     .    . 


CHAMBERS— Common 

Law  Division  .     . 

appeal  from    .     .    . 

CHANGE  of  parties      . 
discharge  of  order   . 


CLAIM,  statement  of,  time 
for  delivery      .    .    . 

amendment  of    .    .    . 


Within  8  days  from  service      .     .     .  Qed.  XV. 

o      1-     :,  R.'20. 

On  the  day  of  appearance  give  notice 

to  plaintiflF's  solicitor Okd.  XI.  R.  1. 

When  the  claim  is  for  liquidated 
demand  and  writ  is  specially  in- 
dorsed, plaintifi  may  on  filing  affi- 
davit of  service,  immediately  enter 
final  judgment Okd.  XII.  R,  S 

When    not   indorsed,    on    filing   affi- 
davit of  particulars,  and  after  expi- 
ration of  8  days,  he  may  enter  final  Oed   XII 
judgment R.  3  and  R-'s. 

A  defendant  may  appear  at  any  time 
hefore  judgment  (save  as  provided 
by  Ord,  XII.  R.  8.; Ord.  XL  R.  7. 

Under  Bills  of  Exchange  Act  applica- 
tion to  be  made  within  12  days 
from  service  of  writ. — 24  &  25  Vic. 
cli-  43,  s.  2 Obd.  I.  R.  2. 

Appeals  firom  decisions  to  the  said 
Courts  shall  be  by  motion  made 
within  8  days  after  decision  appealed 
against Obd.  LIIL  R.  7. 

Where  an  order  is  made  to  carry  on 
proceedings  under  Ord.  XLIX.  R. 
4,  application  to  discbarge  or  vary 
same  must  be  made  ivithin  12  days 
from  service  thereof Obd.  XLIX. 

R.  6. 

Any  person  under  disability,  and  not 
represented,  may  apply  to  discbarge 
or  vary  such  order  withhi  12  days 
after  the  appointment  of  a  guardian 
or  guardian  ad  litem Obd.  XLIX. 

R.  7. 

Within  6  weeks  from  the  time  of  the 

defendant's  entering  appearance       .     Obd.  XX.  R.  1. 

Plaintiff  may  amend  without  leave 
hefore  the  ci^piration  of  the  time 
limited  for  reply,  or  where  no 
defence  is  delivered  within  4  weelcs 

from  last  appearance Obd.  XXV I 

R.  1. 


CLAUi— can. 

copy  of  amended  state- 
ment, delivery  of     . 


COSTS,  payment  into  Court 


CROSS  -  EXAMINATION, 
notice  for,  after  evi- 
dence taken  by  affi- 
davit        


DEFENCE,  statement  of, 
delivery  in  Chancery 
Division      .... 


TIME    TABLE. 


Shall  be  delivered  to  new  defendant  at 
the  tittle  when  he  is  seized  with  the 
writ  of  summons  or  notice,  or  after- 
wards, within  4  days  after  his 
appearance 


Ord.  XV. 
R.  16. 


Where  accepted  in  full  satisfaction  of 
claim,  costs  to  be  paid  within  48 
hours  after  taxation Ord.  XXX.  R.  4. 


Must  be  served  unthin  14  days  after 
time  allowed  for  filing  afEdavits  in 
reply,  or  within  such  time  as  may 

be  appointed Ord.  XXXVII. 

R.  4. 


Within  14  days    from    delivery    of 
statement  of  claim 


in  Common  lawDivision     Within  8  days  from  delivery  of  state- 
ment   of  claim,    or   from    the  time    ' 
limited  for  appearance,  unless  such 


time  be  extended 


Ord.  XXI.  R.  1. 


where  no  statement  of 
claim  required      .     . 


At    any  time   within  8   days    after 
appearance Ord.  XXI.  R.  2. 


where    writ    specially 

indorsed  under  Okd. 

XIII Within  such  time  as  shall  be  limited 

by  order,  or  if  no  time  is  thereby 
limited,    within  8   days   after   the 

order Okd.  XXI.  R.  3. 

further  defence  or  reply 

arising   pending   ac- 
tion, and  after  party 

has  pleaded  already 

or  let  time  to  close 

expire Further     defence    or    reply     arising, 

pending  action,  may  be  delivered 
by  leave  tvithin  8  days  after  its 
arising Ord.  XIX.  R.  2. 


amendment  of  defence 


Where  a  set-off  or  counter  claim  is 
pleaded,  amendment  thereof  may 
be  made  at  any  titnc  (and  without 
leave)  before  tlie  expiration  of  the 
time  for  pleading  to  the  reply  (and 
before  pleading  thereto)  or  if  no 
reply,    tvithin   28   days  from    the 

filing  of  his  defence Ord.  XXVI. 

R.  2. 


DEFENCE— c(m. 

limited  to  part    .     . 


DEMUKRER,  time  for  de- 
livery      


time  for  entry  for  argu- 
ment       


TIME    TABLE. 

In  action  for  the  recovery  of  land 
defence  may  be  limited  to  a  part  by 
serving  notice  to  that  effect  within 
4  days  after  appearance     .... 

Within  the  same  time  as  any  other 
pleading  in  the  action,  viz.  8  days 
to  statement  of  claim  ;  3  weeks  to  a 
defence,  4  days  to  reply     .... 


Oed.  XI.  R.  9. 


Oed.  XXVII. 
R.  3. 


DISCOVERY,  time  for  de- 
livery of  interroga- 
tories       


If  the  demurrer  be  not  entered  for 
argument,  and  notice  thereof  given 
within  10  days  after  delivery  (and 
if  the  pleading  demurred  to  is  not 
amended)  the  demurrer  shall  be  held 

sufficient Ord.  XXVII 

R.;6. 


application    to    strike 
out 


Either  parties  before  close  of  pleading 
may  once  vrithout  order,  or  at  any 
time  by  leave  deliver  interrogatories 


Any  party  called  upon  to  answer 
interrogatories  may  within  4  days 
after  service  apply  to  strike  out  any 
interrogatory  as  scandalous,  irrele- 
vant, or  not  bona  fide 


answer  to 


Obd.  XXXI . 
R.  1. 


Oed.  XXXI. 
R.  5. 


DISMISSAL   for  want  of 
prosecution      .     .    . 


default  of  delivery  of 
statement  of  claim    . 


By  affidavit  to  be  filed  within  10  days 

OP  other  time  allowed Obd.  XXXI 

R.  6. 

A  defendant  instead  of  giving  notice  of 
trial  may  apply  to  have  the  action 
dismissed   for   want   of  prosecution 

(See  Trial) Obd.  XXXV. 

R.  4. 

Where  the  plaintiff  is  bound  to  deli- 
ver and  does  not  do  so  within  tTie 
time  allowed,  the  defendant  may 
apply  at  the  exjnration  of  6  weeks 
from  appearance  or  other  time 
allowed^  to  dismiss  action  with 
costs  for  want  of  prosecution  .     .     . 


default  of  answering  in- 
terrogatories, &c. 


ENTRY  of  Action  for  trial 
in  Dublin  .... 


Within  time  limited  in  order,  if  a  plain- 
tiff, his  action  may  be  dismissed  ;  if 
a  defendant  the  defence  struck  out, 
and  the  defendant  placed  in  same 
position  as  if  he  had  not  pleaded 


By  one  or  other  party,  must  be  made 
within  6  days  after  notice  of  trial  . 


Okd.  XXVIII. 

R.  1.  and 
Obd.  XX.R.  1. 


Obd.  XXXI. 
R.  19. 


Oed.  XXXV. 
R.  11. 


b2 


XXX  TIME    TABLE. 

ENTRY— con. 

for  trial When  party  giving  notice  of  trial  for 

Dublin  or  the  County  of  Dublin 
omits  to  enter  action  for  trial,  the 
party  receiving  the  notice  may 
(unless     countermanded)    enter    it 

within  4  clays Obd.  XXXV. 

E.  15. 

ot  judgment,  date  of  .  Entry  of  judgment  when  pronounced 
in  Court  shall  be  dated  as  of  the  day 
on  which  judg7ncnt  is  pronounced  .     Ord.  XL.  E.  2. 

And  in  all  other  cases  entry  shall  he 
dated  as  of  the  day  on  which  the 
requisite  documents  are  left  with 
the  proper  officer Ord.  XL.  R.  3. 


EXECUTION,     writs 
when  issued 


of, 


Where  money  or  costs  are  payable 
under  a  judgment,  the  person  enti- 
tled may  immediately  after  entry 
sue  out  a  writ  of  fieri  facias,  or 
elegit 


where  payment  ordered 
within  a  period  men- 
tioned     Then   no  writ  till  after  expiration  of 

such  period,  but  leave  may  be  given 
to  issue  execution  before,  or  to  stay 
execution  until  any  time  after  the 
expiration  of  the  period     .... 


Ord.  XLL 
E.  15. 


Ord.  XLL 
E.  15. 


duration  of  writ 


1  year  from  issue,  unless  renewed 


after  what  time  may  be 

issued As  between  original  parties  to  a  judg- 
ment, at  any  time  within  6  years 
from  judgment 


after  6  years 


FINAL  JUDGMENT,    de- 
fault of  appearance  . 


After  6  years  or  any  change  in  the 
parties,  leave  must  be  obtained  . 


See  Appearance . 


under  Ord.  XIII,  E.  1, 
on  specially  indorsed 

■writ Application  must  be  made  by  motion 

(a   motion    requires  2   clear    days 
between  service  and  hearing) 


Obd.  XLI. 
E.  16. 


Ord.  XLI. 
R.  IS. 

Ord.  XLI. 
R.  19. 


appeal  from     . 
notice  to  vary 


Within  a  year 


Notice  by  a  respondent  of  intention  to 
contend  that  the  decision  of  the 
Court  should  be  varied,  must  subject 
to  special  order,  be  an  8  days^ 
notice 


Ord.  Xin.E.2. 

Obd.  LVIII. 
E.  II. 


Ord.  LVIII, 
R.3. 


TIME    TABLE.  XX 

GUARDIAN    ad  litem   to 

appoint Notice  of  application  for  a  guardian 

ad  litein  to  be  appointed  to  a 
defendant  who  has  not  appeared, 
must  be  served  at  least  6  clear  days 
before  day  named  in  notice  for  hear- 
ing application Obd.  XII.  R. 

to  discharge  order  to 

bind Where  served  with  order  under  Ohd, 

XLIX.  R.  3,  may  apply  to  have 
same  discharged  or  varied  within 
12  days  of  service 


INSPECTION,  notice  to 


notice  that  documents 
can  be  inspected  .     . 


INTERPLEADER 


Where  persons  being  under  disability, 
and  not  having  had  a  guardian  ad 
litem  appointed  in  the  action,  is 
served  with  an  order  under  Okd. 
XLIX.  R.  3,  he  may  apply  to  have 
such  order  discharged  or  varied 
within  12  days  after  appointment 
of  such  guardian 

Inspection  of  documents  referred  to  in 
pleadings  or  affidavits  can  be  applied 
for  by  notice  in  writing  at  any  time 
before  or  at  the  hearing     .... 


Party  receiving  such  notice  shall 
within  2  days,  if  all  documents 
referred  to  therein  have  been  set  out 
in  pleadings  or  affidavits,  or  if  not 
within  4  days,  give  notice  that 
within  3  days  from  delivery  thereof 
the  documents  can  be  inspected  by 
the  opposite  party 

Application  to  be  made  by  a  defendant 
at  any  time  after  service  of  writ 
summons,  and  before  deliverwig  a 
defence 


Okd.  XLIX. 
R.  6. 


Obd.  XLIX. 
R.  7. 


Okd.  XXXI. 
R.  13. 


Ord.  XXXL 
R.  15. 


ScH.  R.  12. 


INTERROGATORIES, 

time  for  delivering   .     Either  party  may  before  close  of  plead- 
ings may  once  without  order,  or  ai 
any  time  by  leave.     (For  applica- 
application  to  strike  out       tion  to    strike   out,    &c.,   see  Dis- 

corery) Obd.  XXXL 

R.  1. 
JUDGMENT  for  costs  where 
payment  into  Court 
is    accepted    in   full 

satisfaction  .  .  .  Plaintiff  may  sign  judgment  for  costs, 
48  hours  after  taxation,  where  he 
accepts  the  payment  and  has  given 
notice  to  that  effect  to  the  defend- 
ant           Ord.  XXX. 

R.  4. 


TIME    TABLE. 


JUDGMENT— cOTi. 

where  one  party  does 
not  appear  at  the  trial 
setting  aside    .     .    . 


May  be  set  aside  on  terms  on  applica- 
tion made  within  6  days  after  trial . 


JUDGMENT,  direction  to 
enter,  subject  to  leave 
to  move,  time  for 
setting  down  action 
on  motion  for  judg- 
ment        Notice  thereof  must  be  given  within 

time  limited,  or  if  no  time  has  been 
limited,  within  10  days  after  trial  . 


when  no  direction  for 
entry  of       .... 


where  issues  and  ques- 
tions of  fact  ordered 
to  be  determined  .     . 


extent  of  time  allowed 
for  motion      .     .     . 


entry  of 


MOTION,  notice  of 


NEW  TRIAL,  application 
to  Divisional  Court  . 


The  plaintiflF  must  set  down  action  on 
motion  for  judgment,  and  give 
notice  thereof  ^vithin  10  days  after 
trial,  otherwise  any  defendant  may 
do  so 


PlaintiflF  may  set  down  action  on 
motion  for  judgment  as  soon  as 
issues  have  been  determined  ;  if  he 
does  not  within  10  days  after  his 
right  has  arisen,  and  give  notice 
thereof,  then  any  defendant  may  do 
60  and  give  notice  thereof.     .    .     . 

No  action  shall,  except  by  leave,  be 
set  down  on  motion  for  judgment 
after  the  expiration  of  1  year  from 
the  time  when  the  party  became 
entitled  so  to  do 

Entry  of  judgment  when  given  in  Court 
shall  be  dated  as  of  the  day  on 
which  such  jvdgment  is  pronounced 

In  all  other  cases,  entry  as  of  day  on 
which  the  requisite  documents  are 
left  with  proper  officer 

Must  be  served,  except  by  special 
leave,  2  clear  days  before  the  day 
named  therein  for  hearing      .     .     . 

If  the  trial  has  taken  place  in  Dublin, 
shall  be  made  ivithin  4  days  after 
the  trial,  or  on  first  subsequent  day 
that  the  Court  sits  to  hear  motions . 

If  the  trial  has  taken  place  elsewhere 
than  in  Dublin,  the  motion  shall  be 
made  ivithin  the  first  4  days  of  the 
next  following  sittings 


Ord.  XXXV. 
R.  21. 


Obd.  XXXIX. 
R.  2. 


Obd.  XXXIX. 
R.3. 


Obd.  XXXIX. 
B.  5. 


Obd.  XXXIX. 
R.  7. 


Obd.  XL.  R.  2. 


Ord.  XL.  R.  3. 


Obd.  LIL  R.  3. 


Ord.  XXXVIIL 
R.  1. 


Obd.  XXXVIII. 
R.  1. 


NEW  TRIAL— coH. 

service,   copy  of  order 
to  show  cause  .     .     . 


showing  cause 


NOTICES  of  appeal   from 
judgment   .... 

appeal  from  interlocu- 
tory judgment  order 

by  a  respondent  to 
vary  final  judgment 
and  interlocutory 
order      


TIJIE    TABLE. 


Must  be  served  imthin  4  days  after 
being  made 

The  opposite  party  must  show  cause 
at  the  expiration  of  8  days  from  the 
date  of  the  order,  or  as  soon  after 
as  tbe  case  can  be  heard      .     .     . 


Shall  he  a  14  days'  notice 
Shall  be  a  4  days'  notice  . 


of  appearance 


for  cross-examination 
when  evidence  taken 
by  affidavit      .     .     . 


of  limited  defence  to 
action  for  recoTery 
of  land 

of  entry  of  demurrer  for 
argument    .... 

of  application  for  guar- 
dian   

for  inspection  of  docu- 
ments      

of  motion  for  judgment 
where  leave  reserved. 
Where  no  direction. 
Where  issues  of  fact 
are  ordered  to  be  tried 

of  motion 

of  payment  into  Court 
in  satisfaction      .     . 

of  trial 


8  days,  if  final,  4  days  if  interlocutory 

The  defendant  on  entering  an  appear- 
ance, shall  on  the  same  day  give 
notice  thereof 


Must  be  served  imthin  14  days  after 
time  for  filing  affidavits  in  reply,  or 
within  such  time  as  is  appointed,  on 
the  party  to  be  cross-examined  at 
the  trial 


Okd.  XXXVIII. 
R.  2. 


Ord.  XXXVIII. 
R.  1. 

Ohd.  LVIII. 
R.  2. 

Ord.  LVIII. 
R.  2. 


Ord.  LVIII. 
R.  3. 


Ord.  XL  R.  1. 


Ord.  XXXVIL 
R.  i. 


Within  4  days  after  appearance      .     .      Ord.  XI.  R.  9. 

Within  10  da2/s  after  delivery  .     .     .        Obd.  XXVII. 

R  6. 

See  Guardian      .  

See  Inspection 

See  Judgment 

Must  be  .served  (except  by  special 
leave)  2  clear  days  before  day 
named  therein  for  hearing ....      Oed.  LIL  R.  3. 

See  payment  into  Court 

See  Trial 


XXXIV  TIME   TABLE. 

PARTIES,  application  to 
strike  out  or  substi- 
tute     May  be  made  at  any  time  before  trial 

by  motion  or  summons;  or  at  the 
trial  in  a  summary  manner    .     .    . 

application  to  discharge 
or  vary  order  adding 

a  party Where  an  order  is  made  under  Ord. 

XLIX.  R.  4,  application  to  vary  or 
discharge,  same  must  be  made 
within  12  days  from  service  thereof. 


where  person  is  under 
a  disability      .    .    . 


And  not  represented  may  apply  to 
discharge  or  vary  order  within  12 
days  after  appointment  of  guardian. 


Obd.  XV.  R.  14. 


Ord.  XLIX. 
E.  6. 


Ord.  XLIX. 
R.  7. 


PAYMENT  into  Court  in 
satisfaction      .    .    . 


of  acceptance  of  pay- 
ment before  defence 
delivered    .... 


after 


satisfaction    of    whole 
claim 


PLEADINGS,  statement  of 
claim,  delivery  of     . 


Defence 
Demurrer 
R'^ply  . 


If  such  payment  be  made  before  deli- 
vering his  defence,  the  defendant 
shall  thereupon  serve  notice  to  the 
plaintiff  thereof 


If  payment  is  made  before  delivery  of 
a  defence,  the  plaintiff  may  within 
4  days  after  receipt  of  notice,  or  if 
payment  is  stated  in  a  defence,  then 
before  reply,  accept  the  same,  and 
must  give  notice  to  defendant 
thereof ;  and  in  case  it  is  accepted 
in  satisfaction  of  entire  claim,  he 
may  tax  his  costs,  and  in  case  of 
non-payment  within  48  hours  sign 
judgment  for  his  costs  so  taxed  .     . 


Within  6  weehs  from  time  of  defend- 
ant entering  appearance     .     .     .     . 

See  Defence 

See  Demurrer 

See  Reply 


Ord.  XXX. 
R.  2. 


Obd.  XXX. 

R.  4. 


Ord.  XX. 
R.  1. 


REPLY,    and    subsequent 
pleading     .... 


The  plaintiff  must  deliver  his  reply 
within  3  weeks  after  the  defence, 
unless  time  extended 


further  arising  pending 

action Within  8  days   after  such  ground  of 

defence  has  arisen    ...... 


BD.  XXIII. 

R.  1. 


Obd.  XIX, 
R.  2. 


TIME    TABLE.  XXXV 

REPLY— con. 

subsequent  pleading  .  Subject  to  Ord.  XXIII,  R.  2,  every 
subsequent  reply  shall  be  delivered 
within  4  days  after  the  delivery  of 
previous  pleading,  unless  time  be 
extended Ord.  XXIII. 

STATEMENT  OF  CLAIM    See  Claim 

TIME,  montlis Months  unless  expressed  to  be  lunar, 

mean  calendar Oed.  LVII. 

R.  1. 

Sundays Where  any  limited  time  less  than  6 

dat/s  is  allowed,  Sunday,  Christmas, 
and  Good  Friday  are  excluded    .     .        Ord.  LVII. 

R.  2. 

holidays "When  time  expires  on  a  holiday,  it  is 

extended  to  the  day  on  which  ofEcs 

is  next  open Ord.  LVII. 

R.  3. 
long  vacation      .     .     .     Long  Vacation  is  not  reckoned  in  time 
allowed  (unless  by  order)  for  filing, 
amending,  and  delivering  pleadings      Ord.  LVII.  R.  5. 

TRIAL,  notice  of,  by  jury  .     May  be  given  by  Plaintiff  with  his 
reply,  or  at  any  time  after  the  close 

of  pleadings Okd.  XXXV. 

R.  2. 
notice  by  defendant      .     If  the  Plaintiff  shall  not  within  6  weeJcs 
after  the  close  of  pleadings,  or  ex- 
tended time,  give  such  notice,  then 

the  defendant  may Oed.  XXXV. 

R.2. 
notice  of  application  to 
direct  mode    of,   by 

plaintiff  or  defendant  May  be  given  by  plaintiff  with  his  re- 
ply, or  at  any  time  after  close  of 
pleadings.  And  if  plaintiff  does  not 
give  such  notice  within  6  weeks 
after  the  close  of  pleadings,  the  de- 
fendant may Ord.  XXXV. 

R.  3. 
order  by  Court  of  Judge     May  in  any  action,  at  any  time,  order 
questions  to  be  tried   by  different 

modes  of  trial Oed.  XXXV. 

R.  5. 


/ 


notice  of  trial  by  the 
plaintiff 


by  defendant . 


notice,  time  of 


The  plaintiff  may,  with  his  reply,  or 
at  any  time  after  the  close  of  the 
pleadings,  give  notice  of  trial,  and 
specify  mode  and  place  of  trial.  If 
the  plaintiff  do  not  give  notice 
within  6  weeks  after  close  of  plead- 
ings (unless  the  time  is  extended), 
defendant  may  give  such  notice 

Notice  of  trial  must  be  a  10  days' 
notice,  unless  parties  agree  to  a  short 
notice,  which  is  a  4  days'  notice  .     . 


Oed.  XXXV. 
R.  3. 


Oed.  XXXV. 
R.9. 


TRIAL— con. 

where  party  gives  notice 
of  trial  for  Dublin, 
but  omits  to  enter 
tlic  action  for  trial  on 
same  or  next  day 


TRANSFER  OF  ACTIONS 


WRIT  of  summons 


concurrent 


indorsement  of  date 


renewal 


of  execution    . 
duration  of  writ 


TIME    TABLE. 


The  party  receiving  the  notice  for 
trial  (in  the  absence  of  counter- 
mand),   may  loitliin    4   days    enter 

the  action  for  trial Ord.  XXXV. 

R.  15. 

Order  may  be  made  at  any  stage  of  the 
proceedings Ord.  L.   R.  3. 

Only  in  force  yor  12  months  from  date 

thereof       .     .     .    '. Ord.  VII.  R.  1. 

May  be  issued  within  12  months  after 
the  issuing  of  the  original       .     .     .      Ord.  V.  R.  1. 

On  which  writ  was  served  must  be 
made  by  person  serving  the  same 
within  3  days Oed.  VIII.  R.  2. 

Writ  may  be  renewed  by  leave  for  6 
months  from  date  of  such  renewal, 
and  so  from  time  to  time  during  the 
currency  of  the  renewed  writ  .    Okd.  VII.  R.  L 

See  execution 


If  unexecuted  writs  remain  in  force 
for  1  year  only  from  its  issue,  unless 
renewed 


Ord.  XLL 
R.  16. 


TABLE    OF    CASES. 


A.  B.  V.  Attorney  General,  150 

Aclieson  v.  Henry,  600 

Acktie  V.  Bolaget  Eckmans,  520 

Adams  v.  Davison,  508 

Adams  v.  O'Brien,  508 

Adcock  V.  Peters,  356,  374 

Aderis  v.  Thrigley.  381 

Ainsworth  v.  Starkie,  354,  595 

Allan  V.  Donnelly,  173 

Allan  V.  United  Kingdom  Electric 
Telegraph  Co.,  405 

Allen  V.  Kennet,  548 

Allenborough  r.  Thompson,  508 

AUertson  v.  Chichester,  268 

Allgood  V.  Gibson,  632 

Alwood  r.  Miller  or  Milman,  197 

Amies  v.  Clark,  91 

Ammerman  v.  Digges,  674 

Amos  V.  Chadwick,  6G2 

Anderson  v.  Bank  of  British  Colum- 
bia, 602 

Andrew  v.  Raebum,  98,  670 

Andrews  i:  Salt,  172,  311,314,  319 

Andrews  v.  Stewart,  531 

Anglo-Italian  Bank  v.  Wells,  531 

Apothecaries,  Society  of,  v.  Notting- 
ham, 602 

Archbold  v.  Rice,  1 10 

Armitage  v.  Fitzwilliam,  597 

Armstrong  v.  Crawley,  538 

Armstrong  v.  Waterford  RaUway 
Co.,  285 

Ashby  V.  Ashby,  329,  548 

Ashworth  v.  Browne,  173 

Ashworth  v.  Outram,  6 

Askew  V.  North  Eastern  Railway 
Co.,  385,  387,  556,  574 

Astley  V.  Weldon,  277 

Aston  V.  North  Western  Railway 
Co.,  519 

Atkins  V.  Taylor,  532,  565,  584 

Atkinson  v.  Ellison,  196 

Atkinson  v.  Newcastle  Waterworks 
Co.,  280 


Attorney-General  v.  Barrett,  656 
Attorney-General    v.    London     and 

North  Western  Railway  Co.,  586 
Attorney-General  v.  Pagham  Harbour 

Co.,  627 
Attorney-General  v.  Moas,  673 
Attorney-General  v.  Pasley,  114 
Attorney-General  v.  Ray,  28 
Attorney-General  v.  Wiltshire,  250, 

251 
Austin  V.  Austin,  311 
Ayles  V.  Cox,  275 
Aynsley  v.  Glover,  286 

Back  v.  Hay,  619 

Bacon  v.  Bacon,  602 

Bagnell  v.  Carlton,  651 

Bagnell  v.  Edwards,  19 

Baigent  v.  Baigent,  647 

Baker  v.  Newton,  599 

Baker  v.  Oakes,  402 

Baltic  Co.  (Limited)  v.  Simpson,  626 

Banahan  v.  Wallice,  571 

Bannicot  v.  Harris,  595,  599 

Baring  v.  Stanton,  407  ' 

Barnicott  v.  Hann,  380 

Barker  v.  Wood,  564 

Barlow  v.  Bartery,  663 

Barr  v.  Barr,  181,  300 

Barron  v.  Cooke,  380 

Barry  v.  Barry,  366,  308 

Barry  v.  Grogan,  556 

Barry  v.  M'Grath,  591 

Barry  v.  Scully,  605 

Bartholomew  v,  Rawlings,  196,  201, 

566,  600 
Bartlam  v.  Yates,  349,  405 
Bartlett  v.  Bartlett,  266 
Bartlett  v.  Lewis,  329,  601 
Bartlett  v.  Roche,  380 
Barton  i?.  Sampson,  419 
Bataod  v.  Hawes,  329 
Batley  v.  Kynock,  663 
Baxter  v.  West,  167 


TABLE    OF    CASES. 


Beall  V.  Smith,  120,  550 
Beauchamp,  Earl  of,  v.  Winn,   334, 

659 
Beaufort,  Dnke  of,  v.  Berty,  238 
Beavan  v.   Countess  of  Mornington, 

422 
Beddington  v.  Beddingt6n,  511,  520 
Bell  V.  Hazlerigg,  629 
Bell  V.  Lowe,  508,  .533 
Bell  w.  O'Reilly,  21 
Benecke  v.  Frost,  206,  208,  545,  546 
Benjamen  v.  Sanley,  608 
Bennett  v.  Gamgee,  657 
Bennett  v.  Griffiths,  664 
Bennett  v.  Moore,  636 
Benson  v.  Paul,  283 
Berdan  v.  Birmingham  Small  Arms 

Co..  410 
Beresford  v.  Browning,  331 
Bergin  v.  Burke,  364 
Berkly  v.  Sewell,  297 
Berridge  v.  Roberts,  531 
Berry  or  Berkly  v.  Sewell,  297,  299 
Berry  v.  Exchange  Trading  Co.,  666 
Best  V.  Pembroke,  648 
Betham  v.  Fernie,  519 
Bibby  v.  Naylor,  656 
Biekford  v.  Davey,  602 
Bigsby  V.  Dickenson,  418,  422 
Binks  V.  Wharton,  565 
Birch  V.  Williams,  623 
Blackburne  Union  v.  Brook,  628 
Blackmore  v.  Smith,  657 
Blair  v.  Massey,  610 
Blake  v.  Albion  Life  Assurance  Co., 

573 
Boake  v.  M'Cracken,  555 
Boddy  V.  Wall,  587 
Boilan  v.  Dublin  and  Belfast  Railway 

Co.,  664 
Bolivia,    Republic    of,    v.    National 

Bolivian   Navigation   Co.,  406, 

615,  636 
Bolton  V.  Corporation  of  Liverpool, 

602 
Booth  V.  Briscoe,  367 
Booth  V.  Taylor,  294 
Bostock  V.  North  Staffordshire  Rail- 
way Co.,  632 
Bottomley  v.  Brooke,  202 
Bouck  V.  Bouck,  547 
Bourke  r.  Murray,  371 
Bournes  v.  Bournes,  419 
Bowdidge  v.  Sianey,  507 
Bowen  v.  Bowen,  580 
Bower  v.  Hartley,  206,  211 
Boyce  v.  Rossborough,  151 


Boyce  v.  Simpson,  648 
Boyes  i\  Cook,  563 
Boys  V.  Ancell,  278 
Bradley  v.  James,  266,  267 
Bradshaw  v.  Lancashire  Railway  Co., 

655 
Brady  v.  Fitzgerald,  297 
Bramwell  v.  Halcomb,  293 
Brand  v.  Matson,  301 
Bredin  v.  Corcoran,  570 
Brereton  v.  Hutchinson,  233 
Breslawer  v.  Barwick,  555,  556 
Breton  v.  Mockett,  563 
Bridge   v.  Grand  Junction  Railway 

Co.,  303 
Bridgeman  v.  Gill,  233 
Bridson  v.  Budding,  586 
Eridson  v.  jM'Alpiue,  293 
Bridson  v.  Smith,  636 
Bright  V.  Legerton,  239 
British  Empire  Shipping  Co.  v.  Somes, 

595 
British   Mutual   Investment    Co.    v. 

Cobbold,  18 
British   Mutual   Investment    Co.   v. 

Smart,  170 
Brittlebank  v.  Goodwin,  232 
Broadhurst  v.  Willey,  593 
Broughton  v.  Hutt,  334 
Brown  v.  Brown,  414 
Browne  v.  Fullarton,  369 
Brunter  v.  Robertson,  520 
Bruntorf «'.  Doyle,  515 
Bubb  V.  Yelverton,  243,  246 
Buchanan  v.  Jack,  640 
Buchanan  v.  Taylor,  600 
Budding  V.  Murdock,  342,  573 
Bull  V.  Clarke,  610 
Burdick  v.  Garrick,  239 
Burford,  Corporation  of,  r.  Lenthall, 

117 
Burne  v.  Robinson,  233,  652 
Burns  v.  Irving,  651 
Burrell  v.  Cartwright,  619,  662 
Burrowe.s  v.  Gore,  233 
Bush  V.  Beavan,  283 
Bustros  V.  White,  329,  602,  603 
Butler  ?'.  Carter,  232 
Biitterworth  v.  Tee  and  Wife,  358, 

506,  538 
Byrd  v.  Nunn,  557 
Byrne  v.  Elliott,  632 
Byrne  v.  Hutchinson,  642 
Byrne  t'.  Martin,  585 

Cahill  V,  M'Dowall,  548 
Calcraft  v.  West,  284 


TABLE   OP   CASES. 


Caldwell  v.  Board  of  Works,  40,  174 
Caldwell  v.    Pagham    Harbour  Co., 

359,  535 
Calvert  v.  Gasen,  242 
Calvert  v.  Power,  624 
Callaghan  v.  Callaghan,  422 
Callan  v.  Maruni,  555 
Campbell  v.  Im  Thurn,  503,  658 
Campbell  v.  Mackey,  547 
Cannot  v.  Morgan,  180 
Cantwell  v.  Cannock,  546 
Cappelaus  r.  Brown,  193,  197,   199, 

348 
Capps  V.  Capps,  659 
Carey  v.  Cuthbert,  239 
Cargill  V.  Bower,  575 
Came  v.  ]\Ieilins,  369 
Carnegie  v.  Baird,  538 
Carr  v.  Boyce,  118 
Carr  v.  Morice,  294 
Carroll  v.  Hargreave,  233 
Carron  Iron  Co.  r.  Maclaren,  516 
Carter  v.  Dean  of  Ely,  274 
Carter  v.  Dunne,  51 7 
Carter  v.  Leeds  Daily  News,  595, 598, 

602 
Carter  v.  Uniake,  295 
Casey  v.  Arnott,  518,  520 
Cashin  v.  Craddock,  596,  605 
Cassin  v.  Sliortall,  648 
Castro  V.  Murray,  135 
Catling  V.  King,  556,  579     • 
Cave  V.  Mackenzie,  407 
Cavendish  v.  Mundy,  246 
Chamberlaine  v.  Drumgoole,  655 
Chapman  r.  Chapman,  18 
Chatfield  v.  Bertchtold,  618 
Chatterton  v.  White,  240 
Cheese  v.  Lovejoy,  396,  398,  404 
Chester  v.  Phihips,  540 
Chesterfield  and  Boythorpe  Colliery 

Co.  V.  Black,  599,  603 
Child  V.  Stenniag,  372,  535,  536, 553 
Cholmondeley  v.  Clinton,  255 
Chowue  V.  Baylis,  264 
Clark  V.  Beaumont,  612 
Clarke  v.  Bowman,  326 
Clarke  v.  Callow,  556 
Clarke  v.  Cockbum,  626 
Clarke  v.  Cookson,  626 
Clarke  v.  Cost,  191 
Clarke  v.  Roche,  646 
Clarkson    v.    British    and    Foreign 

Marine  Insurance  Co.,  370 
Clowes  V.  Hillard,  370 
Coates  V.  Sandy,  513 
Cochrane  v.  Camack,  217 


Cochrane  v.  Willis,  332 

Colebourne  v.  Colebourne,  294,  301, 

358,  505 
Collis  V.  Prendergast,  217 
Collins  V.  Thompson,  650 
Colonial    Assurance    Corporation   v. 

Prosser,  564 
Colonial  Bank  of  Australia  v.  Willan, 

136 
Colyer  v.  Lee,  417 
Comerford  v.  Watson,  135 
Commissioners   of  Charitable   Dona- 
tions V.  Wybrants,  234,  235 
Commissioners  of  Sewers  v.  Gellatby, 

354 
Commissioners  of  Waterford  v.  Neale, 

545 
Conduit  V.  Soane,  118 
Concha  v.  Murietta,  662 
Conolly  V.  Luscombe,  659 
Conolly  V.  Teeling,  527 
Cook  1-.  Dey,  516,  560 
Cook  V.  Enchmarch,  548 
Cook  V.  Hall,  173 
Cooke  V.  Oceanic  Steam  Co.,  605 
Cooper  V.  Bhssett,  356,  374,  505 
Cooper  V.  Castle,  407 
Cooper  V.  Cooper,  403,  424 
Cooper  V.  Ince  Hall  Co.,  664 
Cooper  V.  Phipps,  332,  334 
Cope  V.  De  la  Warr,  405 
Copinger  v.  Quirk,  364,  548 
Coppinger  v.  Gubbins,  240,  242 
Cormack  v.  Grofrian,  370 
Cornwall  V.  Hudson,  564 
CorseUis  v.  Corsellis,  312 
Cosby  V.  Robinson,  360 
Costa  Rica  v.  Erlanger,  341,  394,  646 
Cotching  V.  Hancock,  595 
Cotton  V,  Horseman,  564 
Courtois  V.  Vincent,  312 
Courtown,  Lord,  v.  Ward,  240 
Cowles  V.  Gale,  274 
Cox  V.  Barker,  173,  354,  369,  416 
Crane  v.  JuUion,  364,  516 
Crane  v.  Loftus,  351,  654 
Crawford  v.  Crawford,  238 
Crawford  v.  Horsea  Steam  Brick  and 

Tile  Co.,  417 
Credit  Foncier  Association  v.  Adair, 

352 
Creen  t-.  Wright,  338,  632 
Cremen  v.  Hawkes,  297 
Crichtou  v.  Collerj-,  557 
Croft  V.  Goldsmid,  278 
Croft  on  V.  Ormsby,  274 
Croly  V.  Mathew,"  241 


3d 


TABLE   OF   CASES. 


Crosbie  v.  Tliompson,  385 

Crosse  v.  Smith,  326 

Crowe  V.  Barnicott,  553 

Cruikshank  ?\  the  Floating  Swim- 
ming Baths  Co.,  348 

Cruse  V.  Kuttingall,  515 

Cullen  V.  Moran,  506 

Cullev  P.  Buttinxnt,  352,  584,  611, 
646 

Culverhouse  v.  Wilkens,  650 

Cuming  (,'.  Montgomery,  548 

Cummings  i;.  Herron,  410 

Curriers'  Co.  v.  Corbett,  286 

Curry  v.  .Johnson,  508 

Cuthbert  v.  llornsby,  659 

Daly  v.  Coghlan,  559 

Daly  V.  Nolan,  570 

Daniel  v.  Freeman,  260,  266 

Daniel  v.  M'Carthy,  217,  648 

Danson  v.  La  Capelain,  516 

Darcy  v.  VVhittaker,  353 

Darnley,  Lord,  v.  London,  Chatham, 

and  Dover  Railway  Co,,  573 
Daubney  v.  Shuttle  worth,  666,  679 
Davenport  v.  Davenport,  291 
Davey  v.  Whittaker,  654 
Davies  v.  Mac  Henry,  135 
Davis  V.  Davis,  317,  321 
Davis  V.  Garland,  513 
Davis  V.  Hone,  273 
Davis  V.  Spence,  532 
Davy  Brothers  v.  Garrett,  382 
Dawes  V.  Thornton,  207 
Dawkins  v.  Lord  Penrhyn,  235,  556, 

579 
Dawson  v.  Mailey,  648 
Day  V.  Ratcliffe,'537 
Deane  v.  Sandfbrd,  519 
Dearie  v.  Hall,  260,  265 
Debenham  v.  Lacey,  662 
Dee  v.  Dee,  571 
Dear  v.  Sworder,  20 1 
Defries  v,  Stewart,  569,  590 
De  Hart  v.  Stevenson,  540 
Delaseaux  v.  Barling,  506 
Dempster  v.  Vernon,  508 
Denison  v.  Franklyn,  359,  507,  529 
Deniiison  v.  Kcatinge,  136 
Deposit   Life  Assurance  Co.  v.  Ays- 

ccuigh,  194 
Devonshire,  Duke  of,  v.  Foot,  140 
Dickenson  i>.  Teasdale,  234 
Dickson  v.  Capes,  513 
Dixon  V.  Neath  Co.,  648 
Dillon  V.  Cruise,  233 
Dimmock  v.  Hallett,  275 


Dinwiddle  v.  Bailey,  168 

Disney  v.  Longbourne,  696 

Doe  V.  Gibbs,  255 

Doherty  r.  Allman,  242 

Doherty  v.  M-Daid,  649 

Donaldson  v.  Donaldson,  265 

Doran  v,  Carroll,  242 

Douglas  V.  Cowden,  590 

Downshire,  Marquis  of,  v.  Sandys, 244 

Doyle  V.  Kaufman,  .514 

Drake's  Patent  Concrete  v.  Demer, 
294 

Drake  r.  Wiiiteley,  595 

Drewitt  r.  Edwards,  646 

Drogheda,  Marquis  of,  v.  Hanlon,  374 

DruifT  V.  Lord  Parker,  332,  333 

Drumraond  v.  Drummond,  518 

Dymonds  i\  Croft,  515 

Dublin,  Archbishop  of,  v.  Trimbles- 
ton,  328 

Duckett  V.  Cover,  370,  371 

Duncan  v.  Vereker,  573 

Dundas  v.  Blake,  233 

Dunne  v.  Doran,  232 

Dunraven  v.  Adare  Coal  and  Iron 
Co.,  420 

Durbing  t\  Lawrence,  576,  687 

Dutch  V.  Power,  631 

Dymocks  v.  Croft,  560,  634 

Dymond  v.  Croft,  525,  528,  666 

Eadf.  v.  Jacobs,  601 

Earlv  V.  Smith,  564 

Karp^  V.  Faulkner,  342,  631 

Earp  V.  Henderson,  378 

East  Assam  Co.  v.  Roche,  631 

Ede  V.  Vyse,  535 

Edmunds  v.  Greenwood,  601 

Edwards  v.  Abrey,  119 

Edwards  i\  Lowther,  371 

Edwards  v.  Noble,  180,  214,  342 

Edwards  v.  Warden,  362 

Eldridge  v.  Bargess,  657 

Eldridge  v.  Crouchor,  119 

Ellice  V.  Roupell,  173 

Ellis  I'.  Ambler,  597 

Ellis  r.  Munson,  561,  562 

Eimna,  T/ie,  605 

I-'.mnianuel  v.  Bridijer,  649 

English  V.  'I'ottie,  329,  600,  603 

English  V.  Vestry  of  Camberwell,  293 

Eimor  7'.  Barwell,  663 

I'",theriiiglnn  v.  Wilson,  407 

Etty  V.  Bridges,  269 

Eustace  v.  Lloyd,  216 

Evans  r.  Buck,  5.35,  644 

Evaus  V.  Gunn,  194 


TABLE    OF   CASES. 


Evans  v.  Jones,  513 
Evenett  v.  Laurence,  411 
Eyre  v.  Cox,  3o6,  374,  505,  513 
Eyre  v.  Smith,  25 

Ex  parte. — 

Carpenter,  Smith  and  Batty,  137 

Cohen,  215 

Coker,  216 

Collie,  208 

Coroner  West  Riding  of  Cork, 

114 
Cowan,  139 

Devonshire,  Duke  of,  139 
Dillon,  115 

Domville,  a  Bankrupt,  26 
Fernandez,  Jose  Luis,  2,  154 
Finn  in  re  Curtis,  311 
Gillebrand,  417 
Guerin,  110 
Higgins,  137 
Hinton,  409 
Hodgekinson,  230 
Horsford,  in  re  Smith,  530 
Hughes,  215 
Leonard,  26 
Lynch,  140 
National  Bank,  51 
Pannell,  26 
Parnell,  114 
Pearson,  422 
Pannell,  215 
Price,  192 
Rensbury,  259 
Rocke  171  re  Hall,  230 
Rowe,  135 
Sawyer,  418 
Smith  171 7-e  Collie,  209 
Smith  and  Hopwood,  215 
South,  270 
'     Stirling,  421 

Union  Bank  of  Manchester,  260 
White,  119 
WiUiams,  139 

Farmer  v.  Fottrell,  593 

Farran  v.  Mercer,  419 

Fay  V.  Fay,  297 

Fayle    v.    Kingstown     Waterworks 

Co.,  517 
Fenner  v.  Bedford,  294 
Fenner  v.  Dempsey,  645 
Fenney  v.  Forward,  601 
Fenwick  v.  Johnson,  595 
Ferguson  v.  Wilson,  419,  639 
Fernie  v.  Young,  422 
Ferrard  v.  Arbuthnot,  569 


Field  V.  Field,  182,  661 

Fievet  v.  Manby,  19,  29 

Financial  Corporation  v.  Price,  648 

Finlay  v.  Barton,  518 

Finlay  v.  Lindsey,  602 

Fisher  v.  Cox,  513 

Fisher  v.  Hughes,  611 

Fisher  v.  Val  de  Travers  Asphalte 
Co.,  90,  104 

Fitzsimon  v.  Lyons,  135 

Fleming  v.  Fleming,  152 

Fletcher  v.  Egan,  651   ^■ 

Fletcher  v.  Fletcher,  263 

Flight  V.  Bolland,  639 

Flight  V.  Booth,  275 

Flood  V.  Sulton,  110 

Flower  v.  Gedye,  623 

Flower  v.  Lloyd,  161,  173,  354, 
415,  424,  610,  664 

Foley  V.  Hill,  168 

Foot  V.  Duke  of  Devonshire,  140 

Foot  V.  Lea,  285 

Forbes  v.  Carney,  280 

Forbes  v.  Moffat,  252 

Ford  V.  Tynte,  243 

Fortescue  v.  Fortescue,  607 

Foss  V.  Foss,  302 

Foster  v.  Gamgee,  562 

Fotherby  v.  Metropolitan  Railway 
Co.,  283 

Fottrell  V.  Kavanagh,  229 

Fov/ler  v.  Fowler,  170 

Fowler  v.  Knoop  and  London  Bank- 
ing Association,  210 

Fowler  v.  Zewry,  347 

Fox  V.  Bulklev,  330,  332 

Fox  V.  Wallis,'671 

Foxwell  V.  Webster,  173 

Frazer  v.  Burrows,  605 

Frederici  v.  Vanderzee,  530 

Freeman  v.  Lomax,  191 

French  v.  Lear,  530 

French  v.  Macale,  279,  280 

French  v.  MuUigau,  360 

Frew  V.  Stone,  519 

Friend  v.  London  and  Chatham  Rail- 
way Co.,  603 

Fryer  v.  Royle,  356,  374,  505 

Fryer  v.  Wiseman,  339,  539,  612, 627 

Fulton  V.  Creagh,  250 

Furlong  v.  Scanlon,  328 

Furness  v.  Booth,  202,  207 

Garbutt  v.  Fancus,  218,  221 
Gardiner  v.  Hardy,  352,  528 
Garling  v.  Royds,  350,  619,  647 
Garnett  v.  Bradley,  402 

c2 


xlii 


TABLE   OF   CASES. 


Garth  V.  Cotton,  243,  244,  246 

Gaskell  v.  Chambers,  517 

General  Steam  Navio^ation  Co,  v. 
London  and  Edinburgh  Ship- 
pnig  Company,  181,  304,  403 

Geraghty  v.  Sharkey,  648 

German  Bank  of  London  v.  Schtaidt, 
532 

Gerrard  v.  O'Reilly,  277 

Gibbons  v.  M 'Evilly,  G62 

Gilberts.  Smith,  6'l4,  G37 

Gillot  V.  Ker,  oSG,  587,  637 

Glover  i\  Danberry,  418 

Gilmour  v.  Simpson,  G47 

Glover  i\  Greenbank  Alkali  Co.,  160 

Goddard  v.  Macauley,  110 

Goddard  v.  Poole,  658 

Goff  V.  Finlan,  515 

Golding  ;'.  Wharton  Salt  Works, 
407,  575 

Good  V.  Allen,  569 

Gorman  v.  Hinks,  276 

Goss  V.  Lord  Nugent,  332 

Gosset  V.  Campbell.  584,  558 

Gourley  v.   Plimsoll,  599 

Governors  of  Chrif^t's  Hospital,  Breck- 
nock V.  Martin,  98 

Grady  v.  Hunt,  539 

Grant  v.  Banqne  Franco  Egyptienne, 
414,  636 

Graves  v.  Chamney,  119 

Gray  v.  Lawder,  618 

Great  Australian  Mining  Co.  v. 
Martin,  519 

Great  Western  Insurance  v.  CuulifFe, 
17 

Green  v.  Browning,  519 

Green  v.  Colbv,  563 

Green  v.  Pledger  204 

Greene  v.  Greene,  656 

Greene  v.  Le  Clerk,  408 

Greenonght  v.  Gaskell,  602 

Gregory  t;.  U'ilson,  278 

Griffin  V.  Hamilton,  405 

Gridin  v.  Morgan,  655 

Griffiths  V.  Taylor,  423 

Grocers'  Co.  r.  Coll,  618 

Guilfoyle  V.  Hutchinson,  630 

Eabkrshok  v.  Gill,  298 

Habgood  V.  Paul,  557 

Haigh  V.  Jagger,  290 

Hall  V.  Blackwell,  640 

Hall  V.  Eve,  378,  384,  554,  557 

Hall  V.  Hall,  167 

Hall  V.  Pritchett,  648 

Hall  V.  Khynd,  514 


Hall  V.  Smith,  41 1 

Hall  V.  Snelling,  586 

Halliday  v.  Harris,  215 

Hallum  V.  Hill,  671 

Halsey  v.  Grant,  275 

Hamii  v.  White,  170 

Hamilton  r.  Hector,  311,  316,  319 

Hammersmith  Skating  Hink  Co.  v. 
Dublin  Skating  Rink  Co.,  288 

Hammond  v.  Hammond,  22 

Hammond  v.  Messenger,  263 

Hanbury  v.  Noone,  30,  218,  661 

Hancock  v.  De  Niceville,  349,  538 

Hancock  v.  Macnamara,  194 

Hanley  v.  M'Dermott,  335 

Hanmer,  Lord,  v.  Flight,  386,  531, 
532,  533 

Hansard  r.  Robinson,  326 

Hardman  v.  Leech,  21 

Hare  v.  Hare,  615 

Harkin  v.  Montgomery,  135 

Harold  i'.  Smith,  593 

Harold  v.  Whitaker,  257 

Harpur  v.  Redder,  659 

Harris  v.  Aaron,  413 

Harris  v.  Franconia,  Ovyners  of,  519 

Harris  v.  Gamble,  200,  202,  203, 
204,  2 1 0,  553,  560 

Harris  v.  Newton,  409 

Harris  v.  Pepperell,  171 

Harrison  v.  Markins,  347 

Hartley  r.  Owen,  611 

Harvy  or  Harvey  r.  Davey,  373 

Hastie  v.  Hastie,  4,  405 

Hastings,  Corporation  of,  v.  Ivall,  293 

Hate  V.  Snelling,  586 

Hawesw.  Paveley,  32,  139,  141 

llawksworth  v.  Hawksworth,  319, 
321. 

Hawley  v.  Reade,  597 

Haxall  V.  Hodgson,  533 

Hay  V.  Le  Nave,  303 

Hayden  v.  Shearman,  645 

Hayes  v.  Price,  142 

Hazell  V.  Currie,  662 

Head  V.  Ryde,  619 

Heap  V.  Marris,  383 

Ilennessy  v.  Bnhman,  664 

Henry  ''.  Rankin,  1 10 

Herbert  v.  Greene,  298 

Herring  v.  Hi.-cliofFsheim,  658 

Ile.slop  ('.  Baker,  266 

liewetson  v.  U'hittington  Life  Insur- 
ance Co.,  594 

Hewson  ;'.  Guiiniess,  119 

Higi^inbotham  r.  Aynsley,  583 

lliggs  t'.  Northern  Assam  Tea  Co.,  270 


TABLE   OF    CASES. 


xliii 


Hill  V.  Andus,  304 

Hill  V.  Campbell,  601 

Hill  V.  Hibbet,  173 

Hillman  v.   IMavhew,  31,  178,  182, 

553,  587,  661 
Hills  V.  Rowland,  278 
Hime  v.  Campbell,  411 
Hirschfield  v.  London  General  Omni- 
bus Co.,  210 
Hitchen  v.  Birks,  299,  300 
Hobhouse  i-.  Courtney,  362 
Hobson  V.  Bell,  265 
Hodgens  v.  Hodgens,  547,  651 
Hodges  V.  Hodges,  558,  565,   579, 

581 
Hodsoll  V.  Taylor,  600.  601 
Hodson   V.    Midland   Great  Western 

Railway  Co.,  632 
Hogan  r.  Healy,  170,  330 
Holloway  t;.  York,  179 
Holmes  v.  Harvey,  181 
Holrovd  V.  ]\rarsball,  213,  327 
Holt  V.  Dewell,  267,  268 
Honahan  v.  Ahern,  585 
Honduras    Oceanic    Railway   Co.   v. 

Le  Fevre  Tucker,  371,  537 
Home  V.  Hough,  600 
Honywood  v.  Honeywood,  244 
Hooper  v.  Giles,  376,  565,  584 
Hope  V.  Banks,  386 
Hope  V.  Hope,  306,  315 
Hopev.  Threlfall,  419 
Hopewell  v.  Barnes,  32 
Hopkinson  v.  Owens,  270 
Horsley  v.  Cox,  649 
Horwell  v.  London  General  Omnibus 
Co.,  210 

Houghton  t".  London  and  County  As- 
surance Co.,  608 

Howard  v.  Bank  of  England,  336 

Huddersfield,     Corporation     of,     v. 
Jacomb,  97 

Hudson  V.  Temple,  273 

Hughes  V.  Guinness,  593 

Hughes  V.  Metropolitan  Railway  Co., 
219,  279 

Humphreys  v.  Edwards,  30,  661 

Hunt  V.  Bateman,  233 

Hunt  V.  Browne,  241 

Hunt  V.  City  of  London  Real  Pro- 
perty, 662 

Hunt  V.  Hodges,  241 

Hunter  v.  Hunter,  412,  539,  553 

Hutchinson  v.  Baslam,  25 

Hutchinson  v.  Glover,  603 

Hutchinson  v.  Hartmont,  646 


Imperial  Mercantile  Credit  Associa- 
tion IK  Huntingdon,  604 

Ingate  v.  Lloyd  Australian  Co.,  285 

Ingham  v.  Wa.skett,  656 

International  Finance  Society  v.  City 
of  Moscow  Gas  Company,  411 

Irish  Society  v.  Crommelin,  574,  605 

Isaac  V.  Grant,  152 

Isenberg  v.  East  India  House  Estate 
Co.,  285 

Ivory  V.  Cruikshank,  527,  639 

Jackson  v.  North  Eastern  Railway 

Co.,  657 
Jackson  v.  Spittal,  519 
Jacobs  V.  Brett,  139 
James   v.    South    Western  Railway 

Co.,  24 
Jaquot  r.  Bourna,  507 
Jebbs  V.  Lewis,  204,  210 
Jefferey  v.  Lysaght,  555 
Jeffryes  v.  Drysdale,  124 
Jenkins  ?\  Davies,  555,  637 
Jenney  v.  Bell,  553 
Jennings  v.  Bond,  270 
Johnasson  v.  Bonhole,  578 
Johnson  v.  INIidland  Great  Western 

Railwav  Co.,  418,  419 
Johnson  v.  Moffat,  182,  363 
Johnson  v.  Smith,  607 
Jones  V.  Ham,  110 
Jones  V.  Mackie,  590 
Jones  V.  Turner,  385 
Jones  V.  Victoria  Graving  Dock,  406 
Judd  r.  Green,  415 
Jurtings  v.  Conn,  241 
Justice  V.  Mersey  Steel  and  Iron  Co., 

420,  426 
Justice  V.  Wynne,  271 

Keant  v.  Tottenham,  553 

Kearney  v.  Kearney,  168 

Kearney  v.  Ryan,  645 

Kearney  Ryland  v.  London  &  Brigh- 
ton Railway  Co.,  325 

Keays  v.  Latie,  203 

Kelly  V.  Dixon,  518 

Kellv  r.  Kelly,  233 

Kelly  V.  Shi  tor,  591 

Kelly  V.  Solari,  334 

Kelly  V.  Staunton,  297 

Kelsey  v.  Kelsey,  297 

Kemble  v.  Farren,  276 

Kennedy  v.  Grace,  3C4 

Keogh  V.  Keogh,  204,  252 

Kisbev  v.  Holyhead  Railway  Co., 
519 


xliv 


TABLE   OF    CASES. 


Kevan  v.  Crawford,  421 

Kevil  V.  Lynch,  150 

Kelt  V.  Robinson,  519 

Keyland  v.    Corporation   of  Belfast, 

189 
Kimberley  v.  Dick,  168 
Kinalian  v.  Bolton,  iiSo 
King  V.  Corke,  342,  572 
King  V.  King-Harman,  170 
King,  The,  v.  Islay,  309 
King,  The,  v.  Moses  Soper,  312 
Kingchurch  v.  the  People's  Gardens 

Co.,  37,  108,  220 
Kino  V.  Rudkin,  17,  287,  658,  662 
Kirwan  v.  Burchall,  559 
Kitching  v.  Kitching,  548 
Knatchbull  v.  Fowle,  339,  539,  627 
Knight  V.  Lynch,  580 
Knott  w.  Fitzgibbon,  136 
Knowlman  v.  Bluett,  335 
Knox  V.  Kelly,  233 
Knox  V.  Walters,  118 
Kyne  v.  Murphy,  516 

Laikd  v.  Murray,  285 

Lake  v.  Gibson,  331 

Lake  v.  Pooley,  609 

Lamb  v.  Arton,  419 

Lane  v.  Eve,  624 

Lane  v.  Hone,  553 

Langridge  v.  Campbell,  592 

Large  v.  Large,  359 

Larkin  v.  Lawder,  564 

Lascelles  v.  Butt,  621 

Lawless  v.  Lawless,  1 52 

Lawrenson  v.  Dublin    Metropolitan 

Junction  Railway  Co.,  516 
Lea  V.  Whitaker,  277 
Leake  v.  Noble,  648 
Leathley  v.  MacAndrew,  540 
Leaver  v.  Fielder,  333 
Ledwidge  v.  Lynch,  347 
Lee  V.  Colyer,  197 
Lefroy  v.  Gore,  829 
Leitrim,  Earl  of,  v.  Maddison,  655 
Leonard  v.  Leonard,  334 
Lereculey  v.  Harrison,  373 
Lessee  of  Ashtown  v.  White,  277 
Lewcr  v.  Barnctt,  646 
Ley  V.  Marshall,  606 
Liberia,  Ilepublic  of,  v.  Roze,  611 
Life  Insurance  Association  of  Scot- 
land V.  M'Blain,  21 
LifiFard  v.  Quinn,  293 
Light  5V.  Light,  118 
Lindsey  v.  Condy,  632,  634 
Lindsay  v.  Lynch,  559 


Little  V.  Stewart,  119 

Litton  V.  Litton,  570 

Liverpool,  Brazil  Steam  Navigation 
Co.v.  London  and  St.  Katherine's 
Steam  Navigation  Co.,  621 

Livesay  v.  Harding,  268 

Lloyd's  Banking  Co.  v.  Ogle,  532 

Lloyd  V.  Lewis,  633. 

Lloyd  V.  Rossmore,  539 

Lloyd  V.  Lord  Trimbleston,  290 

London,  City  of,  v.  Pugh,  279 

London  v.  Roffey,  633 

London  &  South  Western  Railway 
Co.  V.  James,  188 

Long  V.  Littledale,  641 

Longfield  v.  Cashman,  295 

Loscombe  v.  Russell,  167 

Lovell  V.  Holland,  373 

Loveridge  v.  Cooper,  260 

Lows,  cx'jKtrte,  676 

Lowe  V.  Lucey,  293 

Lowndes  v.  Beetle,  289,  291 

Lowndes  v.  Thomas,  586 

Lowther  v.  Bellairs,  347 

Luscher  v.  Comptoir  d'  Escompt^  de 
Paris,  663 

Lydale  v.  Martinson,  625,  656 

Lynch  v.  Oversall  Coal  Co.,  540 

Lyons  v.  Bleakin  Jacob,  315,  317, 
321 

Macartney  v.  Corry,  1 00,  1 74 
Macdonald   v.  Bode,  197,  202,  212, 

543 
Mackin  v.  Salkeld,  119 
Macken  v.  Ellis,  518,  519 
Mackenzie  v.  Shepperd,  520 
Mackey   v.  Scottish    Widow's  Fund 

Co.,  286 
Mackley  v.  Chillingworth,  336 
Maclean  v.  Naughton,  423,  424 
Maclean  v.  Vaughan,  404 
MacNamara  v.  Church,  170 
Macnamara  v.  Lynch,  656 
Madeley  v.  Booth,  275 
Magdalen  Hospital,  v.  Knotts,  607. 
Magee  v.  Lavelle,  277,  278 
Maguirc!;.  Gardiner,  516 
Maguire  v.  Monahan,  508 
Mahony  v.  Lewis,  656 
Major  V.  Barton,  136 
Makin  V.  Barrow,  292 
Malins  in  Phosphate  Sewage  Co.  v. 

Ilartmont,  18 
Mallinson  v.  Mallinson,  310 
Manchester  and    Sheffield    Railway 

Co.  V.  Brooks,  194,  195,  537 


TABLE   OF    CASES. 


xlv 


Manisty  v.  Kenealy,  548,  580 

Mansell  v.  Feeny,  381 

Mansfield  v.  Childerbouse,  590 

Mansfield  v.  Crawford,  240 

Mape  v.  London  and  North  Western 

Railway  Co.,  517 
Marcus  v.  General  Steam  Navigation 

Co.,  407 
Mare  v.  Lewis,  238 
Margate   Pier   and    Harbour    Co.  v. 

Perry,  532,  565 
Marsh  v.  Dunlop,  372,  537 
Marsh  i\  Mavor  of  Pontefract,  387, 

574 
Martin  v.  Gregg,  641 
Martin  r.  Hemming,  612 
Marston  v.  Smith,  214,  336 
Martin  v.  Williams,  362 
Mason  v.  Bogg,  229 
Martin  v.  Kelly,  648 
Mathews  v.  Brise,  238 
Mattock  V.  Heath,  594,  607,  638 
Mavro  v.  Olean,  328 
Maxwell  v.  Mitchell,  279 
M'Anulty  v.  Nanties,  385 
M'Cartney  v.  Simonton,  110 
M'Corquodale  v.  Bell,  600,  602,  603 
M'Craith  v.  Quinn,  298 
M'Dermott  v.  Caldwell,  537 
M'Dermott  v.  Sullivan,  506 
M'Donnell  v.  Murray,  326 
M'Donnell  v.  White,  232 
M'Fadden  v.  Jenkins,  270 
M'Gillicuddy  v.  Galway,  217 
M'Keniiey  v.  Reynolds,  674 
M'Kenzie  v.  Hesketh,  274 
M'Lester  v.  Fagan,  5S0 
M'Mahou  V.  Burchell,  385 
M'Mahon  v.  Ellis,  656 
M'Namara  v.  Arthur,  189 
^I'Namara  v.  Waterford  and  Limerick 

Railway  Co.,  517 
M'Swiney  v.  Haynes,  285 
Meakin  v.  Sykes,  586 
Measurer  v.  Thomas,  207,  208 
Megaw  V.  De  Lizordi,  568 
Meilor  V.  SidebottoOT,  407,  637 
Meluish  i-.  Milton,  29,  31,  301 
Menbinick  v.  Turner,  574 
Menton  v.  Metcalf,  528 
Menzies  v.  Lord  Grantley,  302 
Mercantile  Mutual  Insurance  Co.    v. 

Sboesmitli,  596 
Mercantile  River  Plate  Bank  v.  Isaac, 

503,  535 
Mercier  v.  Cotton,  596 


Metropolitan  Board  of  Works,  v.  New 

River  Co.,  615 
Metropolitan  Railway  Co.  v.  Defries, 

179,  582,  381';,  408 
Meux  V.  Bell,  268,  269 
Meyrick  v.  James,  630 
Micbell  ?.-.  Lee,  648 
Mitchell  V.  Wilson,   624,  67i 
Middleton  v.  Pollock,  191,  656 
Miles  V.  Murphy,  256 
Miller -!>.  O'Brien,  516 
Miller  v.  Ship  Virgo,  419 
Miller  V.  Mvnn,  648 
Minet  v.  Moran,  602,  608 
Molloy  V.  French,  268,  270 
Molony  v.  Quail,  280 
Montgomery  v.  Blair,  139 
IMontgomery  v.  Cunningham,  240 
Montgomery  v.  Montgomery,  371 
Montreal,  Bank  of,  v.  Cameron,  530 
Moore  v.  Belfast  and  Ballymena  Rail- 
way Co.,  517 
Moore  v.  Browne,  656 
Moore   v.  City   and    County  Bank, 

221 
Moore  v.  Elliot,  538 
Moore  v.  Kempton,  17 
Moorbead  v.  Moorhead,  120 
Moorhouse  v.  Colville,  574 
Moran  v.  Moran,  151 
Mordaunt  v.  Ryan,  506,  507 
Morgan  v.  Elford,  426 
Morgan  v.  Lariviere,  18 
Morley  v.  Morley,  253 
Morrell  v.  Cowan,  173 
Morris  V.  Grant,  286 
Morris  v.  Livie,  1 70 
Mortimer  v.  Sbortall,  170 
Moseley  v.  Blake,  262 
Moseley  v.  M'Mullen,  555 
Mostyn,  New,  v.  West  Mostyn  Coal 

Co.,  29,  37,  171,  179,  195,  218, 

332,  594,  606 
Mounsey  v.  Earl  of  Lonsdale,  535 
Moylan  v.  Healy,  568 
Mulligan  V.  Chute,  570 
Mullin  V.  Bonger,  513 
Mulville  V.  Fallon,  293 
Murr  V.  Cooke,  408 
Murray  v.  Simpson,  648 
Murphy  v.  Daly,  241 
Murphv  V.  Nugent,  571 
Mutlow  V.  Bigg,  238 

Naish  v.  Macken,  326 
Nagle  V.  O'Donnell,  538 


xlvi 


TABLE    OF   CASES. 


Nagle-Gilman  v.  Christopher,  98 
Nash  V.  Dickenson,  641 
Nathan  v.  Batchelor,  678 
National  Provincial  Bank  of  England 

V.  Bradley  Bridge  Co.,  206,  209, 

546 
National  Steamship  Co.  v.  Owners  of 

"City  of  Berlin,"  421 
Naughten  v.  Midland  Great  Western 

Railway  Co.,  594 
Needham  v.  River  Protection  Co.,  221 
Needham  v.  Smith,  420 
Newbyz/.  Oppen,  516 
Newell  V.  National  Provincial  Bank, 

194,  566 
Newenham  v.  Cahill,  242 
Newington  v.  Levey,  562 
Newland  v.  Arthur,  518 
New   Westminster    Brewery   Co.   v. 

Hannah,  627 
Nichols  V.  Marsland,  325 
Nicholson  v.  Dracachis,  31 
Nicholson  v.  Jackson,  198 
Niger  Merchants  Co.  v.  Capper,  9 
Nixon  V.  Potts,  419 
Nolan  V.  Fitzgerald,  517 
Norris  v.  Beazley,  346,  373,  503 
Norris  v.  Irish  Land  Co.,  283 
Norton  &  Cannock  Coal  Co.  v.  Mer- 

riman,  195,  347 
Norton  v.  Cover,  301 
Nugent  V.  Piers,  110 

Obke  v.  Bishop,  232 

O'Brien  v.  Cecil,  570 

O'Brien  v,  Lemas,  508 

O'Brien  v.  Taggart,  574 

Ochse  V.  Redfern,  372,  538 

O'Connell  v.  Barry,  600 

O'Connor  v.  Spaight,  168 

O'Donnoll  v.  Reilly,  574 

OTerrall  v.  Burke,  362 

Oger  V.  Bradnum,  503,  516 

O'Hanlon  v.  Unthank,  655 

O'Kelly  V.  Browne,  151 

Oldfield  V.  Cobbett,  136 

O'Neill  V.  Browne,  24 

Onge  V.  Truelock,  328 

Oram  v.  Breary,  139 

Original  HartlepoolCo.i'.Gibb,  195,661 

O'Kiordan  v.  O'Riordan,  592 

Orr  V.  Cooper,  G56 

Orr  V.  Draper,  374,  595 

Osborn  v.  Gillett,  655 

Osborn  v.  London  Dock  Co.,  329,  601 

Owen  V.  Pritchard,  646 


Owens  V.  Steam  Coal  Co.,  221 

Paget  v.  London  Tramways  Co.,  90, 

157 
Padwickj/.  Scott,  178,  198 
Pad  wick  v.  Stanley,  168 
Page  V.  WilHams,  137 
Paget  V.  Ede,  510 
Palin  V.  Brookes,  351 
Parham  v.  Vincent,  505 
Parker  v.  Cathcart,  631 
Parker  v.  Siddons,  299,  300 
Parnell    v.  Great   Western   Railway 

Co.,  632 
Parson  v.  Smith,  357,  506 
Parsons  v.  Harris,  689,  636 
Parsons  v.  Tinling,  402 
Patrick  v.  Milner,  273 
Patterson  v.  Gaslight  and  Coke  Co., 

626 
Patterson  v.  Wooler,  627 
Pattison  v.  Dooler,  351 
Pattison  v,  Gilford,  173 
Paxtou  V.  Bell,  672 
Peachey,  v.  Somerset,  Duke  of,  273, 

275 
Pearce  v.  Spicket,  586 
Pearson  v.  Lane,  543 
Pease  v.  Fletcher,  298 
Peck  V.  Gurney,  326 
Peck  V.  Nolan,  601 
Peek  V.  Dear,  370 
Peek  V,  Tunsmaran  Iron  Co.,  298 
Pemberton  v.  Barnes,  172 
Penarth  Harbour  and   Railway  Co. 

V.  Cardiff  Waterworks  Co.,  609 
Pentland  v.  Sommeryille,  243,  244 
Perkins  v.  Slater,  351 
Perry  v.  Moore,  371 
i  Peru,  Republic  of,  v.  Wegueliu,  423, 
598 
Peters  v.  Vivian,  289 
Petre  i'.  Petre,  234 
Peyton  v.  Harting,  603 
Phelps  V.  Prothero,  21 
Phillips  V.  Barron,  €00 
Phillips  ?'.  Harris,    531 
Philhps  r.  M'Evoy,  539 
Phillips  V.  Munnings,  236 
PhiUips  r.  Phillips,  168,  169,  249 
Philips  V.  Pcniief'eather,  605 
Philpottw.  Lehain,  193,  644 
Phosphate  Sewage  Co.  v.  Hartmount, 

18,  410,  414,  646 
Pike  V.  Frank  Kcene,  540,  611 
Pilley  v.  Baylis,  180 


TABLE    OF   CASES. 


xlvii 


Pinney  v.  Hunt,  30 

Pitten  V.  Chattenburg,  595,  607 

Plant  V.  Bristowe,  406 

Plimpton  V.  Malcomson,  417 

Plimpton  V.  Spiller,  569 

Plum  V.  Normanton  Iron  and  Slate 

Works,  596 
Plumer  v.  Gregory,  536 
Plunket  V.  Doyle,  539 
Pollock  V.  Campbell,  360,  503,  516 
Ponsonby  v.  Flynn,  539 
Pooleyz/.  Driver,  180,  615 
Popham  V.  Eyre,  274 
Powell  V.  Atlantic  Steam  Navigation 

Co.,  519 
Powell  V.  Smith,  333 
Power  V.  College  of  Physicians,  559 
Power  V.  Cook,  538 
Powys  V.  Blagrane,  244 
Preston  v.  Daniel,  276 
Preston  v.  Lament,  519,  521,  553 
Price  V.  Price,  416 
Prosser  v.  Edmonds,  262 
Proudly  v.  Fielder,  263 
Provident  Permanent  Building  Co.  v, 

Greenhill,  852 
Prudential  Assurance  Co.  i'.  Knott, 

288 
Pullen  V.  Ready,  333 
Purcell  V.  Harding,  168 
Purnell  v.  Great  Western  Railway 

Co.,  674 
Pym  V.  Campbell,  332 
Pyne  v.  Kinna,  648 

QuEEK,  The,  V.  Chantrell,  136 

Queen  v.  Clarke,  313 

Queen  v,  Fletcher,  406 

Queen  v.  Howes,  307,  310 

Queen  v.  Hussey,  136 

Queen  v.  Justices  of  Kilkenny,  136 

Queen  v.  Marsten,  309 

Queen  v.  Riall,  137 

Queen  v.  Scott,  510 

Quilligan  v.  Quilligan,  655 

Quin  V.  O'Keeffe,  640 

Rabt  v.  Ridehalgh,  203 
Raeburn  v.  Andrews,  672 
Ramsden  v.  Brearley,  336,  346,  602 
Ranson  v.  Boyd,  645 
Raphael  v.  Ongley,  610 
Rastell  V.  Steward,  564 
Rawley  v.  Rawley,  194 
Rawson  v.  Samuel,  191 
Read  v.  M'Genuett,  600 


Redmond  v.  Butler,  387 

Regina  v.  Clarke,  307,  316 

Regina  v.  Eastern  Archipelago  Co., 

141 
Regina  v.  Race,   Alicia,   310,  312, 
113,  116,  118,  323 

Regina  v.  Upper  Mersey  Dock  Trus- 
tees, 404 

Reiner  t\  Marquis  of  Salisbury,  595 

Rendall  v.  Gardner,  646 

Republic  of  Costa  Rica,  v.  Erlanger, 
341,  598,  646,  672 

Repubhc  of  Peru  v.  Weguelin,  598 

Restall  V.  Stuart,  574 

Rex  V.  Corneforth,  308 

Rex  V.  Dolphin,  140 

Rex  y.  Greenhill,  313 

Rex  i>,  Islay,  309,  310,  312,314 

Reynold  v.  Bloomfield,  603,  611 

Rice  V.  O'Connor,  559 

Rice  V.  Rice,  271 

Rich  I'.  Anderson,  139,  140 

Richards  v.  Bayly,  189 

Richards  V.  Goddard,  630 

Richards  v.  Kitchen,  647 

Richards  v.  Richards,  253 

Richards  v.  Truell,  1 72 

Richardson  V.  Corcoran,  619 

Richardson  v.  Elmit,  648 

Riordan  v.  Cooper,  574 

Riordan  v.  Walsh,  538 

Robb  V.  Connor,  416 

Roberts  v.  Guest,  531,  532 

Robinson  v.  Bannister,  632 

Robinson  v.  Byron,  Lord,  292 

Rochardj;.  Fulton,  260 

Roche  V.  Wilson,  508 

Rochford«.  Ely,  117 

Rochford  v.  Sedley,  613 

Roe  V.  Davis,  342,  573 

Roffey  V.  Miller,  351 

Rogers  v.  Burke,  515 

Eolfe  V.  M'Claren,   195,  567,   614, 
637 

Ronaynev.  Perrin,  539 

Rooney  v.  Farrell,  641 

Rooper  v.  Harrison,  223 

Rose  V.  Clarke,  263 

Roseingrave  v.  Burke,  667 

Ross  V.  Gibbs,  564 

Roupell  V.  Parsons,  586 

Row  V,  Jacob,  619 

Rowliffe  V.  Leigh,  601,  610 

Rowe  V.  Gray,  172 

Rumsey  v.  Reade,  614 

Runnacles  v,  Misquita,  529,  531,  532 


xlviii 


TABLE    OF   CASES. 


Russell  V.  Ferguson,  648 
Kyan  v.  Horgan,  591 


Ee— 


Andrews,  Mary  Allen,  309,  310, 
312,  313,  318 

Ardfort  Presentment,  136 

Arrowsmith,  124 

Australian     Steam     Navigation 
Co.,  221 

Aylward,  137 

Baillie's  Trust,  408 

Bargent,  G65 

Barry,  116 

Bateman,  138,  148 

Batty  Estate,  145 

Belfast  and  Ulster  Brewery  Co., 
221 

Berry,  118 

Blakely  Ordnance  Co.,  651 

Bloomer,  125 

Biddulph,  119 

Biela,  The,  595 

Bonelli's  Electric  Telegraph  Co., 
621 

Boyce,  121,  129 

Boyd's  Trust,  666 

British  Im perial  Corporation,  52 1 

Brown's  Trusts,  267 

Browne,  316,318,  319,  321 

Brownes,  minors,  320 

Burke,  118,  119 

Burton,  122 

Butterworth's  Trusts,  123 

Byrnes,  infants,  309 

Caerphilly  Collieries  Co.,  422 

Carson  Estate,  148 

Civil   Service   Co-operative  So- 
ciety, 628 

Coal  Economising  Gas  Co.,  419 

Cody,  137 

Connor,  William,  an  infant,  306, 
307,  3U9,  313 

Cormacks,  minors,  296,  311,  316 

Costelloe,  116 

Crossley's  City  of  Glascow  As- 
surance Co.,  541 

Cuming,  125 

Curtis,  316 
.  Cuthbert  Estate,  148 

Dalgleish,  124 

Darceys,  infants,  316 

Davies,  132 

Dawson  Barker  v.  Dawson,  128 

Day's  Estate,  331 

Devonshire,  Duke  of,  140 


Re — continued. 

Driver's  Settlement,  123 
Dundas'  Trusts,  538 
Duuraven  Adair  Coal  Co., 
East,  121 
Everard,    ex   parte    Fitzgerald, 

137 
Fitzgerald,   116,  117 
Foster,   139 
Fynns,  infants,  311,   312    316, 

323 
Gethin,   minor,  521 
Gilbert,  674 
Goldsworthy,  322 
Good  Intent  Society,  122 
Goods  of  Cartwright,  647,  666 
Goods    of    Charaberlayne,  504, 

521 
Goods,  minors,  309 
Grimes,    an    infant,    314,    317, 

319,  320 
Haney's  Trusts,  520 
Haycock's  Pohcy,  272 
Heli,  116 

Herricks,  minors,  143 
Hewitt's  Estate,  132 
Hodson,  121 
Hoskin's  Trusts,  407 
Humphrey's  Estate,  121 
Hunt,  307,  308 
Huntley,  660 
Imperial  Land  Co.  of  Marseilles, 

407 
Jones,  123,  127 
Kaye,  308,  311 
Lambert,  407 
Lamotte,   132 

Lanesborough,  Lord  Beatty,  117 
Lawler,  116 
Lewer,    ex  parte    Garrand,  63, 

409 
Llangvnog  Lead  Mining  Co.,  672 
Lloyd',  312 

London   and    Provincial   Insur- 
ance Co.,  697 
Lowther,  Sherrard  v,  Cuffe,  125 
M'Aleece,   Daniel.  2,  154 
Macfarlane,  119 
Madden,  137 
Mason,  129 

M'Collock  V.  Drury,  309 
M'Donaghs,  minors,  329 
Meades,  minors,  321,  323,321 
Metror,  The,  303,  304 
Molyneux,  125 
Moore,  an  infant,  313,  316,  318 


TABLE   OF   CASES. 


xlix 


Re — continued. 

Moorehead  v.  Moorhead,  125 
Morgan's  Patent,  114 
Morris'  Estate,  335 
Morris'  Settlement,  123 
Mundel's  Trusts,  123 
Natal  Investment  Co.,  270 
National  Funds  Assurance  Co.. 

340,  410,  416,  C06 
Newman,  ex  ])arte  Copper,  277 

278 
Norbury,  Lord,  a  minor,  308 
Northern  Assam  Co.,  270 
Ormerod's  Will,  122 
Owen,   129 

Paris  Skating  Punk,  656 
Pearson,    a  lunatic,   123,    124, 

130 
People's  Garden  Co.,  220 
Peppitt's  Estate,  540 
Percy  v.  Kellj',  672 
Persee,   117 

Phillip's  Arbitration,  666 
Phillips,     Robert,    and    Brooke 

Gill,  354 
Plant,  deceased,  533 
Porter's  Will,   129 
Eace,    Alicia,   310,    312,    313, 

316,  318,  323 
Eio  Grande   do   Sul   Ship    Co., 

406 
Eoe,  138 

Eoyal    Marine    Life    Insurance 
Co.,  350 

Shanahan,  a  minor,  310 

Shorrock's  Trusts,  122 

Smith,  519 

Smith  V.  Hopwood,  215 

Smith's  Trusts,  124 

Sparrow,  121 

Springall  v.  Goldsack's  Contract, 
629 

Stewart,  131 

Suche,  Joseph,  &  Co.  ex  parte 
National  Bank,  51,  341 

Swan's  Estate,  328 

Swifts,  minors,  309 

Tait's  Trusts,  131 

Tayler,  119 

Taylor,  311 

Teas  Bottle  Company,  413,  414 

Tichener,  268 

Tottenham's  Estate,  145 

Vale  of  Neath  Colliery  Co.,  559 

Tickers,  121,  122,  123,  124 

Vincent,  Parham,  ti.Viucent,  505 


Re — continued. 
Walker,  122 
Walsh  Estate,  145 
Walton,  ex  parte  Reddish,  415 
Warnock  E&tate,  148 
Westbourne  Grove  Drapery  Co., 

230 
White,  130 

Wiltshire  Iron  Works  Co.,  418 
Wortley,  542 

Sainter  v.  Ferguson,  278 

Salkeld  v.  Abbott,  328 

Salter  v.  Cavanagh,  235 

Salvidge  v.  Hyde,  536 

Sampson  v.  Seaton  Railway  Co. ,  649 

Sanders  v.  Heathfield,  335 

Sanders  v.  Lord  Lisle,  302 

Sandys  v.  Murray,  291 

Sargent  v.  Read,  294,  300 

Saull  V.  Browne,  23 

Saunders  r.  Bournford,  239,  250 

Saunders  v.  Miller,  666 

Saunderson  V.  Claggett,  143 

Scarth  v.  General  Steam  Navigation 
Co.,  632 

Schomberg  v.  Zoebelli,  564 

Scott  V.  Hastings,  Lord,  264 

Scott  V.  Jones,  236 

Scott  V.  Midland  Great  Western  Rail- 
way Co.,  332 

Scott  V.  Royal  Wax  Candle  Co.,  520, 
525 

Scottish  Amicable  Life  Insurance  Co, 
V.  Barker,  298 

Scottish  Amicable  Society  v.  Fuller, 
21 

Scutt  V.  Freeman,  633 

Segrave  v.  Barber,  381 

Segrave  v.  Duffv,  589 

Seligman  v.  Hutt,  193,  194 

Seligman  t;.  Mansfield,  206,  208 

Senior  v.  Hereford,  687 

Seton  V.  Slade,  275 

Shaw  V.  Shaw,  309 

Shaw  V.  Warmington,  517 

Sheffield  Waterworks  r.  Yeomans,  173 

Shelley  v.  Westbrooke,  3 1 1 

Shepherd  v.  Beane,  202,  560 

Sherwin  v.  Shakespear,  421 

Shirreflt  f.  Hastings,  327 

Shortall  v.  Farrell,  527 

Sickles  V.  Norris,  417,  614 

Simmons  v.  Norton,  241,  242 

Sinnott  v.  The  People's  Provident  In- 
surance Co.,  597 


D 


1 


TABLE   OP   CASES. 


Skate  V.  Bishop  Storlford  Local  Board, 

G'28 
Slater  v.  Slater,  5C4 
Sleight  V.  Lawson,  572 
Slevin  V.  Manders,  585 
Sloman  i\  Governor  of  New  Zealand, 

517 
Sloper  V.  Cottrell,  186 
Smith  V.  Berry,  602 
Smith  V.  Daniel,  602 
Smith  V.  Haselline,  537 
Smith  V.  Kay,  557 
Smith  V,  Peters,  663 
Smith  V.  Smith,  286,  287,  539 
Smith  V.   \\'e.st,  386 
Smith  V.  Whichard.  662 
Sneesby  v.  Lancashire  and  Yorkshire 

Railway  Co.,  415 
Snow  V.  Sherwell,  215 
Society  of  Apothecaries  v.  Notting- 
ham, 602 
Sollory  V.  Seaven,  297 
South  Eastern  Railway   Co.  v.  Mar- 
tin, 169 
Sowerby  v.  Brooks,  267 
Sparkes  v.  Blacquire,  564 
Sparks  v.  Younge,  648 
Sparrow  v.  Paris,  278 
Spencer  v.  Peek,  173 
Spickernell  v.  Holtliam  Kay,  233 
Spurr  V.  Hall,  591 
Stackpoole  v.  Parkinson,  256,  257 
Standtord  v.  Hurlstone,  295 
Stanley,  Lady  of  Anderly,  v.  Earl  of 

Shrewsbury,  285,   286 
Staples  V.  Smith,   328 

Staples  V.  Young,  1 95,  403 
Steele  v.  Cobham,  296 

Stern  ik  Sevastopnld,  601 

Sterne  v.  Beck,  276 

Stevelly  v.  Murphy,  297 

Stevens  v.  Phillips,  327 

Stevins  v.  Maunders,  582 

Stewart  v.  Bank  of  Kngland,  504 

Stewart  v.  ("ockereil,  368 

Stewart  V.  Robinson,  574 

Stewart  v.  Smith,   601 

Stewart  v.  Stewart,  334 

Stokes  V.  Hartnell,  574 

Stokes  V.  Russell,  257 

Stone  V.  Stone,  232 

Stourton  v.  Stourton,  821 

Street  v.   Gover,  204,  210 

Strong  V.  Tappin,  595 

Slubber  v.  Roe,  371 

Stuart  V,  Marquis  of  Bute,  173 


Studdert  v.  Lgary,  515 
Sturla  V.  Freccia,  407 
Sugden  V.  St.  Leonards,  405 
Sullivan  v.  Mason,  548 
SuUivan  v.  National  Shipping  Co.,  624 
Sultan  of  Turkey  v.  Union  Bank  of  j 
London,   665  I 

Summers  v.  City  Bank,  336  ' 

Sutton  V.  Hnggins,  587 
Swansea    Shipping  Co.    v.    Duncan, 

206,  519,  544,  545 
Swifte  V.  Swifte,  319 
Swindell  v.  Birmingham  Syndicate, 

410 
Swiney  v.  Enniskillen  and  Bundoran 

Railway  Co.,  (150 
Swire  v.  Redman,  597 
Sykes  v.  Firth,  619 

Taff  Vale  Railway  Co.  v.  Nixon,  169 
Talbot,  Earl,  v.  Hope  Scott,  290,  291, 

299 
Tawell  V.  Slate  Co.,  540 
Taylor  v.  Dowla,  407 
Tavlor  v.  Duckett,  563 
Taylor  v.  Eckersley,  299,  oOO 
Taylor  v.  Jones,  674 
Taylor  v.  Oliver,  607 
Taylor  w.  Taylor,  192 
Tebbs  V.  Lewis,  204,  210,  545 
Tennant  v.  Walton,  347 
Thomas  v.  Buxton,  657 
Thomas  v.  Elsom,  670 
Thomas  v.  The  Queen,  196,  347 
Thomas  v.  Thomas,  238 
Thompson  v.  Bennett,  336 
Thompson  v.  Eastwood,  233,  239,  334 
Thompson  v.  Hudson,  275 
Thompson  v.  Thompson,  276 
Thompson  v.  Wynne,  597 
Thorncloe  1?.  Skoiues,  294 
Thorp  V.  Hold  worth,  379,  557 
Tibbitts  V.  George,  270 
Tichborne  v.  Tichborne,  300 
Tildersley  v.  Harper,  370,  537 
Tilloy  V.  Thomas,  274 
Tisdall  V.  Ilumpiireys,  312 
Tom  V.   Nagle,  50S 
Toole  V.  Duffey,  135 
Torrance  i'.  Bolton,  332 
Tozer  v.  Walford,   295 
Tracey  v.  Open  Stock  Exchange,  135 
Traill !'.  Jackson,  410 
Trelcaven    v.   Bray,  200,  203,  209, 

211 
Trent  V.  Hnnt,  257 


TABLE    OF   CASES. 


Trevena  v.  Watts,  348 

Tudor  V.  Furlong,  590 

Tullett  V.  Armstrong,  335 

Turkey,  Sultan  of,  v.  Union  Bank  of 

London,  665 
Turner  v.  M'Aule\-,  217 
Turner  v.  Robinson,  285 
Turner  v.    Samson,  581 
Turner  v.  Wright,  242,  244,   245 
Turquand  v.  Wilson,  613,  614 
Twinbarrow  v.  Braid,  662 
Twycroft  v.  Grant,  611 
Tyne  Alkali  Co.  v.  Lawson,  625 

Ujifreville  v.  Johnson,  368 
Underwood  v.  Darracott,  621,  624 

Vagg  v.  Shippey,  20 
Vallance  v.  Birmingham    and    Mid- 
land Land  Company,  374 
Vandeleur  v.   Smith,  515 
Vane,  Earl,  v.  Rigden,  335 
Vaughan  v.  Wilson,  515 
Vane  v.  Vane,    119,354,   550 
Vennall  t'.  Garner.  303 
Vibant  v.  Vibant,  656 
Vignoles  v.   Bowen,   275 
Viner  v.  Vaughan,  240 
Volans  V.  Carr,   1 1 8 
Voysey  v.  Cox,  599 

Wahlberg  V.  Young,   188 

Wake  V.  Harrop,  332 

Wakelee  r.   Davis,  556 

Waldron  v.  Parrott,  651 

Walke  V.   Fanderbeide,   140 

Walker  t'.  Balfour,  210,  211 

Walker  v.  Banagher  Distillery  Co., 
220 

Walker  v.  Bartlett,  421 

Walker  v.  Bennett,  629 

Walker  v.  Blackmore,  658 

Walker  v.  Hicks,  507 

Wall  V.  Dunne,  413 

Wallace  v.  Allan,  141 

Wallice  v.  Great  Southern  and  Wes- 
tern Railway  Co.,  631 

Wallice  V.  iM'Cann,  651 

Wal;h  V.  Bishop  of  Lincoln,  407 

Walsh  V.  Wilson,   136 

Ward  V.  Sittingbourne  and  Sheer- 
ness  Railway  Co.,  547 

Warde  v.   Warde,  323 

Ware  v.  Gwynne,   348 

Ware  v.  Ware,  240 

Waring  v.  Lacey,  629,  631 


Warne  v.  Bell,  167,  169 
Warner  v.  Murdock,  626 
W'arner  v.  Twining,  202,  208 
Warwick  v.  Queen's  College,  173 
Waterford,      Commissioners     of,    v. 

Veale,  545 
Waterpark,  Lord,  r.  Austin,  240 
Watson  V.  Atlantic  Steam  Navigation 

Co.,  519 
Watson  V.  Hawkins,  577,  578,   579 
Watson  V.  Rod  well,  383,  384,  407 
Watts  I'.   Hyde,  572 
Watts  V.  Symes,  421 
Watts  V.  Watts,  31,663 
Webb  V.  Fitzgerald,  667 
Webb  V.  Mansel,  416 
\Vebster  v.  Thorne,  537 
Wedderburn  v.  Wedderburn,   232 
Weir  V.  Barnett,   558 
Welleslev  v.  Duke  of  Beaufort,   172, 

306,  313,  314,  315 
Wellesley  v.  Wellesley,  311 
West    of  England  Bank    v.    Canton 

Insurance  Co. 
AVestman  v.  Aktie  Bolaget  Sckm;!ns, 

517 
Whateley  v.  Crowter,  601 
\Mietstone  v.   Dewy,   30,  548 
Whistler  r.  Handcock,  638 
Whitaker  v.  Forbes,  618 
Whitaker  v.  Thur.'iton,  560 
White  V.  Main  waring,  633 
White  V.  iMansfield,   206 
White  V.  Seaver,  364 
AMiite  V.  Tudor,   306 
White  V.  Tvrrell,  674 
White  V.  Witt,  410 
Whitehaven,  Bank  of,   v.  Thompson, 

516 
Whitley  v.  Honej^well,   516 
Whittle  r.  Henning,  249 
Whytei;.  Hill,  519 
Widgery  v.  Tepper,  651 
Wiicocks  V.  Carter,  23 
Wilkinson  v.  Letch,  119 
Williams    v.    Andrews,    331,    348, 

372 
Williams  r.  Cardwell,  589,  634 
Wills  V.  Harris,  581 
Wilson  V.  Dundas,  212,  327,  647 
Wilson  V.  Smith,  344 
Wilton  V.  Brignell,  590 
A\'ingood  v.  Cox,  564 
Winters  v.  Dabbs,  599 
Witt  V.  Corcoran,  407 
Witt  V.  Parker,  404 


Hi 


TABLE   OF   CASES. 


Witty  V.  Marshall,  319 

Wolfe  V.  Wolfe,  550 

Wood  V.  Anglo  Italian  Bank,  653, 

610 
Wood  V.  Browne,  402 
Woodhouse  v.  Woodhouse,  232 
Woodley    v.    Metropolitan     District 

Railway  Co.,  417 
Woolf  V.  Pemberton,  538 
Woollam  V.  Hearn,  333 
Woolstan  v.  Piaines,  531 
Worraker  v.  Pryer,  356 


Worthington  v.  Jeffries,  140 
Wright  V.  Cattell,   143 
Wright  V.  Goodlake,  GOO 
Wright  V.  Maidstone,  32() 
Wrixon  v.  Condran,  291 

Young  V.  Brassey,  204,  210 

504,  594 
Young  V.  King,  181 
Young  V.  Wilton,  233 

Zychlenski  v.  Maltby,  COl 


ADDENDA. 


Page    17 — Note  n,  Kino  v.  Rudkin,  now  reported  in  L.  K.  6  Chan.  D.  160. 

add  White  v.  Boby,  20  \V.  R.  133,  A.  C. 
,,      23 — Note  b,  add  see  Kerr  v.  Corporation  of  Preston,  L.  R.  6  Chan.  D. 

463. 
,,      25— Note  g,   add  Eyre  v.  Smith,  L.  R.  2  C.  P.  D.  435,  where  fraud 

"was  alleged. 
„      26 — Note  h,  Ex  parte  Pannell,  now  reported,  L.  R.  6  Chan.  D.  335. 
,,      30 — Note  s,  Pinney  v.  Hunt,  now  reported  in  L.  R.  6  Chan.  D.  98. 
,,      32 — Note  a,  Hopewell  v.  Barnes,  now  reported  in  L.  K.  1  Chan.  D.  630. 
,,      48 — Line  9  from  bottom,  after  "<o"  insert  "  the". 
,,      49 — Line  8  from  bottom,  before  "  certain  "  insert  "  to  ". 
,,       63 — Note  a.  In  re  Lewer,  now  reported,  L.  R.  5  Chan.  D.  61. 
,,       98 — Note  d,  Governors  of  Christ's  Hospital  v.  Martin,  now  reported 

in  L.  R.  3  Q.  B.  D.  16. 
,,     104 — Note  u,  Fisher  v.   Val  de  Travers  Co.,  now  reported,    L.  R.   1 

C.  P.  D.  259. 
,,     114 — Note  d,   Ex  parte  Pannell,   reported  in  L.  R.  6  Chan.  D.  335, 

A.  C. 
„     135— Note  e,  for  "  L.  K.",  read  "  L.  R  ". 
,,     136— Note  q,for  "2  Chan.  Rep.",  read  "2  Irish  Chan.  Rep." 
„     139— Note  c,  line  2,  for  "  I.  R.",  read  "  L.  R." 
,,    142— After  line  8,   add,   "unless  Order  58,  R.  1,  infra  has  impliedly 

abolished  the  Writ,  together  with  the  Bill  of  Exceptions  ". 
,,     161 — Note  n,  Flower  v.  Lloyd,  now  reported  in  L.  R.  6  Chan.  D.  297. 
„    172— Note  ff,  before  "  1  Chan.  D.  "  insert  "  L.  R." 
,,    178 — Note  k,  Pudwick  v.  Scott,  now  reported,  L.  R.  2  Chan.  D.  70. 
,,    179 — Note  I,  for"  east"  read  "  west." 
„     181— Note  V.  for  "  60  "  read  "  80." 

„    195— Note  rr,  add  Ellis  v.  Munsen,  W.  N.,  1876,  253  A.  C. 
,,    201 — Note  d,  for  "  Deer,"  read  "  Dear  ". 
,,    202 — Note  g,  for  "  Deane,"  read  "  Beane  ". 
,,    208 — Note  I,  for  "  Benecker  "  read  "  Benecke  ". 
,,    209 — Note  I,  Horwell  v.  London  Omnibus  Co.,  now  reported,  L.  R.  2, 

Ex.  D.365. 


liv  ADDENDA. 

Pa "-e  221 — Note   i,  add,    "see  Mashach   v.    Anderson,'"  W.  N.   1877,  252, 
20  W.  K.,  100  Ex.  D. 
235— Line  15-16,  dele  words  "  by  the  terms  of  the  will." 
^^     240— Line  5,  from  bottom,  for  "  by  "  read  "  for  ". 

241— Note  i-,  add,    "see  Maunsell.  v.  Ilort,"  Ir.  Rep.,   11    Eq.  478, 

M.  R. 
24G— Note  Z,  add,    "see  Lowndei  v.  Norton,''   L.  R  6  Chan.  D.  139, 
V.  C.  M.  "  as  to  proceeds  of  timber  cut  and  sold  by  tenant  for 
life  impeachable  of  waste  ". 
^^    287— Note  b,  for  "  Kind  "  read"  Kino  ". 

,,    288— Note  d,  add  "  but  see  Einrichs  v.  Berndes,'"  W.  N.,  1S78,  11,  M.  R. 

Thorley's   Cattle  Food  Co.  y.  Massam,"  L.  R.  6  Chan.  D.  582. 

SOO—Note  «/,  Taylor  v.  Echerslcij,  now  reported,  L.   R.  2  Chan.  U. 

302. 

^^    304— Note  ^,  General  Steam  Navigation  Co.,  (^c,  now   reported,  L.  R., 

2  Prob.  D.  187,  A.  C. 
„    338— Notea,/or  "  254"reaci  "354". 

,,    355— Sectioa  434,  add,   "  Order  1   R.   3  infra,  requires  leave  of  the 
Court  to  issue  a  writ  to  be    served  out  of  the  jurisdiction", 
see  p.  504  infra. 
382— Note  o,  add  Davy  Brothers  v.  Garrett,  reversed,  W.  N.   1878-7, 
26  W.  R.  225,  22  "  Sol.  Jour."  224,  A.  C.  Statement  of  Claim, 
prolix  and  embarrassing,  and  introducing  evidences  set  aside. 
^^     402— Note  6,  General  Steam  Navigation   Co.,  ^-c,  now  reported,  L.  R. 
2  Ex.  D.  467. 
410— Note  y,  Berdan  v.   Birmingham  Small  Arms   Co.,  now  reported, 

L.  R.  7  Chan.  D.  24. 
j03— Note  b,  add  "  see  Kirwan  v.  Roche,"  12  Ir.  Law  Times,  59  Ex.  D. 
after  leave  giveu  to  appear  and  defend  an  application  for  sum- 
mary judgment  under  Ord.  13  R.  1,  refused. 
,,    503— Note  c,  add  "and  see  Smith  v.  Smith,   12  Ir.  Law  Times,  46 
Barry,  J." 
504 — After  Rule  3  add  "Service  out  of  the  jurisdiction"  has  been 
interpreted  in  some  cases  to  include  "substitution  of  service" 
on  an  agent  iu  Ireland — see  Wood  v.  Ilesmondal,  12  "Ir.  Law 
Times,"  22;  Stephens  v.   Black,   ib.    24;  Jury   v.  Live  Stock 
Insurance  Co.,  ib.  36.     If  so,  the  above  Rule  .seems,  in  so  far, 
scarcely  compatible  with  Rule  10  in  Schedule  to  Act  (ante 
p.  495  and  p.  514  infra),  or  in  conformity  with  the  previous 
practice  of  the  Courts  of  Common  Law  in  Ireland.     A  writ  to 
be  actually  served  within  a  foreign  or  other  territorial  jurisdic- 
tion  may   possibly,     from    the  comity   of  nations,   require  to 
be  guarded  as  to   its  issue  by  the   personal  discretion  of  the 
judge,  but  for  service  at  home,  and  in  a  mode  to  be  prescribed 
by  the  judge  it  seems  unuccessury  and  purposeless.     In  Wright 


ADDENDA.  Iv 

V.  Drapers  Co.,  London,  12  Ir.  Law  Times,  58,  Mr.  Justice 
Fitzgerald  is  stated  to  have  taken  this  view,  and  iu  another 
Division  (C.  P.)  the  Lord  Chief  Justice  intimated  the  Paile 
would  probably  undergo  an  early  revision. 
Page  504 — Note  t,  add,  In  some  cases  (mentioned  above)  it  seems  to  have 
been  considered  necessary  or  expedient  to  have  separate  orders, 
one  to  issue  and  the  other  to  serve  the  writ.  The  Vice-Chan- 
cellor  of  Ireland  is  reported  to  entertain  a  different  opinion,  and 
to  follow  the  English  practice,  which  is  less  expensive,  and 
English  Judges  of  the  Chancery  Division,  iu  order  further  to 
save  expense,  have  directed  application  for  leave  to  issue  a 
writ  out  of  the  jurisdiction,  to  be  made  by  leaving  the  un- 
sealed writ  at  Chambers,  with  an  affidavit  when  required,  the 
judge's  leave  to  be  written  on  the  writ  thus  :  "  Let  this  writ 
be  issued,"  "A.  B.,  Chief  Clerk,"  and  this  to  be  followed  by 
directions  as  to  service  if  necessary — see  22  "Sol.  Jour., 
p.  245. 
,,  510— To  Comment  on  this  Ptule,  add  "  If  the  copy  writ  be  not  lodged 
with  officer  within  two  days  it  may  be  refused,"  see  "Dixon 
V.  Russell,"  12  Ir.  Law  Times,  23,  Dowse  B. 
,,    520— Note  i;u,  add,  see   "  Wood  \.  Hesmondalgh,"  12  Ir.  Law  Times, 

22,  coram  Dowse  B. 
,,    521— Note  c,  add,  "  see  I»ra;?ers  C'>.    v.   M' Cam,"  12  Ir.  Law  Times, 
46  V.C.   "service  of  an  originating  summons  under  Vendor 
and  P.  Act,  1874". 
,,    524— Note  d,  "  see  Henncssi/  v.   Eennessy,"  12    Ir.  Law  Times,  49; 

ejectment  for  rent. 
„    531— Note  (/,  add  "  S.  C.  W.  N.  1878,  10  A.  C  ". 
,,    535— Notez,  after  "  Child  v.  Slenning,''  add  "  see  finalhearing  of  S.  C". 

22  "Sol.  Jour.  246."     Fry  J. 
,,     601 — Note  nn,  add,  "see  Saunders  v.  Jones,  26  W.  R.  226  A.  C. 
,,     606— Note  e,    add,  Kavanayh  v.    Gabbett,   12  Irish   Law  Times,    47  ; 

Barry,  J. 
,,  624— Note  l,lno  proof  of  service  of  notice  of  trial  necessary,  "  see  James 
V.  Crowe,  26  W,  Pt.,  236;  Fry,  J.,  following  Eobson  v.  Eobson, 
22,  Sols.  .Jour.  70,  ex  parte  Lows,  26,  W.  R.  229,  and  over- 
ruling Cockle  V.  Joyce,  L.R.  7  Chan.  D.  56  26  W.  R.  41 ;  Fry,  J. 
and  dismissed  notwithstanding  plaintiff's  Bankruptcy,  Eldridfje 
V.  Burgess  W.  N.  1848,  14  ;  Fry,  J. 
,,     648 — Note  i,for  "  Wynn  "  read  "  Mynn  ". 


A5T 

INTRODUCTORY  VIEW 

OF   THE 

PAST  AND  PEESENT 
JUDICATUEE 


1.  Supreme  Court  of  Judicature  and  its  Constituents,  p. 

2.  Aula  Regis,  4. 

3.  Equitable  Jurisdiction  of  the  Chancellors,  5. 

4.  Equity  the  Development  of  Law,  8. 

5.  Conflict  between  Equity  and  Law,  9. 

6.  Diversity  of  Courts,  IL 

7.  Advantages  of  Special  Tribunals,  13. 

8.  Uncertainty  of  the  Forum,  16. 

9.  Competition  of  the  Forum,  20. 

10.  Insufficiency  of  the  Forum,  21. 

11.  Collision  of  the  Forum,  23. 

12.  Modern  enlargement  of  Jurisdiction,  21. 

13.  One  Court  of  Plenary  Jurisdiction,  20. 

14.  Fusion  of  Law  and  Equity,  33. 

15.  Concurrent  Administration  of,  33. 
IG.  Fusion  of  Judicatures,  34. 

17.  Separate  Administration  in  Divisions,  36. 

18.  Redistribution  of  Business,  37. 

19.  Option  of  Division  and  Transfer,  40. 

20.  Abolition  of  Terms,  41. 

21.  Single  Court  of  Intermediate  Appeal,  43. 

22.  Final  Appeal  to  House  of  Lords,  44. 

23.  County  Court  Judicature,  45. 

24.  Amendment  of  Law,  50. 


(1.)  "  The  Supreme  Court  of  Judicature  (Treland),   introduc- 
Act,  1877,"  has  united  and  consolidated  into  one  great  ^'"'^^"'• 
court,  all  the  superior  courts  of  law  and  equity  in  c"^*!!"^? 
the  kino'dom.     This  new  court,  "  The  Supreme  Court  Judicature 
01  J  udicature  m  Ireland,    is  invested  with  almost  stituents. 
every  part  of  the  jurisdiction  possessed  by  each  and 
every  of  the  superior  courts  ;  and,  moreover,  with 
the  jurisdiction  exercised  by  certain  occasional  courts, 
extemporized  under  Commissions  of  Assize,  Oyer  and 


2  SUPREME   COURT   OF  JUDICATURE. 

iiifro'hic-  Terminer  and  Gaol  Delivery,  Courts  which  ranked 

tori/  yieiv.  _  . 

'■ —      as   Superior,   thoagh    "less   principal"    Courts    of 

Supreme       -n  \  /    ^ 

Court  of      Jtvecord(a). 

aiui  it's  con-  The  Supreme  Court  is  further  to  embrace  the 
stituents.  jurisdiction  belonging  to  a  class  of  courts  originally 
in  the  rank  of  inferior  courts,  but  in  recent  times 
advanced  into  the  grade — not  of  superior  courts — 
but  of  Principal  Courts  of  Record,  and  which  though 
of  subordinate  rank,  had  been  entrusted  with  large 
and  independent  powers  over  certain  limited  sphei'es, 
subject  only  to  the  review  of  the  Court  of  Appeal 
in  Chancery  and  of  the  House  of  Lords. 

These  modern  Courts  of  Record  may  be  shortly 
described  as  follows  : — 

1st.  The  Court  of  Probate,  the  statutable  repre- 
sentative of  the  ecclesiastical  courts,  as  regards  their 
testamentary  jurisdiction,  and  constituted  a  Court 
of  Record  by  the  Act  20  &  21  Vic,  c.  79  (a.d.  1857). 

2nd.  The  still  more  recent  Court  for  Matrimonial 
Causes  and  Matters,  created  a  Court  of  Record  by 
the  Act  33  &  34  Vic,  c  110  (a.d.  1870). 

8rd.  The  Landed  Estates  Court,  representing  the 
Court  of  the  Commissioners  for  Sale  of  Incumbered 
Estates  in  Ireland,  created  a  Court  of  Record  by  the 
Act  12  &  13  Vic,  c.  77  (a.d.  1849),  and  invested 
with  a  jurisdiction  for  sale  and  transfer  of  landed 
estates,  and  for  the  administration  of  the  proceeds, 
a  jurisdiction  abstracted  from  the  Court  of  Chancery, 
but  armed  in  its  new  hands  with  an  authority 
infinitely  more  transcendent  than  the  Court  of 
Chancery  ever  possessed,  viz.,  that  of  giving  to  the 
purchaser  an  unchallengeable  title  to  the  land.  This 
court  had  been  afterwards  reconstituted  with  an 
enlarged  sphere  of  jurisdiction  under  the  name  of 

(«)  See  Ex  parte  Jose  Luis  Fernandez,  10  C.  B.  N.  S.  S.  C.  3,  G  H. 
&  N.  7l.'G.     In  re  Daniel  M'Aleece.     Ir.  Rep.,  7  C.  L.  140,  Q.  13. 


SUPREME   COURT   OF  JUDICATURE.  8 

the  "Landed  Estates  Court  in  Ireland"  by  Act  21   introduc- 

^       ,  ^  ^    ^  ^  iory  View. 

&  22  Vic.,  c.  72  (A.D.  1858).  _ 

Tlie  above-mentioned  courts  are,  presently,  an- 
nexed to  the  Supreme  Court  of  Judicature,  but  in 
addition  to  these,  there  is  one  other  court  which  it 
is  proposed  shall  be  absorbed  into  the  Supreme 
Court,  on  the  occurrence  of  a  vacancy  in  the  office 
of  the  Judge  who  at  present  presides  over  it.  This 
is — 

4th.  The  High  Court  of  Admiralty,  constituted  a 
Court  of  Record  by  the  Act  80  &  81  Vic,  c.  114 
(a.d.  18G7),  and  which  is  to  be  united  and  c"onsoli- 
dated  with  the  Supreme  Court  of  Judicature,  when 
the  existing  Judge  of  the  Court  of  Admiralty  shall 
die,  resign,  or  otherwise  vacate  his  office,  and  its 
jurisdiction  is  to  be  exercised  provisionally  by  some 
Judo-e  of  the  Hio-h  Court  of  Justice,  until  the  fillino: 
up  of  the  vacancy  next  ensuing  in  the  office  of  Judge 
of  the  Probate  and  Matrimonial  Division  of  the 
High  Court  (6). 

The  idea  originally  entertained  of  uniting  and 
consolidating  the  Court  of  Bankruptcj'"  with  the 
Supreme  Court  of  Judicature,  has  been,  for  reasons 
obviously  sufficient,  abandoned  both  in  England  (c) 
and  in  Ireland.  Its  Judges  and  its  jurisdiction  re- 
main as  they  were  before,  but  appeals  from  its  orders 
are  attached  to  the  Court  of  Appeal  newly  consti- 
tuted by  the  Act  (d). 

The  Court  of  Appeal  in  Chancery  is  not  included 
by  name  in  the  list  of  courts  to  be  absorbed  in  the 
Supreme  Court  of  Judicature.  In  this  respect,  our  Act 
follows  the  Judicature  Act  of  1873,  which  treated  the 
English  Chancery  Appeal  Court  as  identical  with 
or  included  in  the  High  Court  of  Chancery,  and 

(6)  Judicature  Act,  1877,  s.  9.  (c)  J.  A.  1875,  s.  9. 

(d)  J.  A.  1877,  s   8. 

B  2 


4  THE  AULA  REGIS. 

j>:frnduc-  exercisincf  nothinej  more  than  the  appellate  iuris- 

ton/  View.  o  o  I  I  j 

- —  '  diction  of  the  Lord  Chancellor.  But  the  Court  of 
Appeal  in  Chancery  in  Ireland  was  something  diffe- 
rent from  this.  It  had  conferred  upon  it  not  merely 
the  appellate  jurisdiction  of  the  Lord  Chancellor 
over  the  subordinate  branches  of  his  own  court,  but 
also  the  appellate  jurisdiction  of  the  Privy  Council 
from  orders  of  the  Incumbered  Estates  Court,  and 
the  freshly  created  jurisdiction  of  appeal  from  the 
Courts  of  Probate,  Matrimonial  Causes  and  Matters, 
Admiralty,  Landed  Estates,  and  Bankruptcy. 

However,  though  not  expressly  named  among  the 
courts  to  be  consolidated  with  the  Supreme  Court 
of  Judicature,  the  Court  of  Appeal  in  Chancery  is 
virtually  extinguished  or  absorbed  by  the  operation 
of  secti(ms  5,  10,  and  23,  transferring  its  sole  per- 
manent Judge  and  its  entire  jurisdiction  to  another 
court,  constituted  under  the  name  of  Her  Majesty's 
Court  of  Appeal  in  Ii'eland,  a  court  which  it  is  to 
be  observed  is  essentially  distinct  from  and  superior 
to  the  Hio;li  Court  of  Justice  in  all  its  divisions,  the 
Chancery  Division  included  (e). 
Aula  Regis.  (2.)  The  general  conception  and  plan  of  the 
Supreme  Court  of  Judicature,  may  probably  have 
been  taken  from  the  ancient  court  of  ./Iw^a  Regis, 
in  its  original  unity  and  entirety,  and  before  its 
functions  had  been  parcelled  amongst  the  four 
Superior  Courts  of  Law  and  Equity.  But,  with 
what  we  must  hope,  may  not  prove  tlie  foreshadow- 
ing of  a  similar  destiny,  this  attribute  of  unity  with 
wliich  the  new  court  is  so  ostentatiously  invested 
at  its  birth,  by  the  second  section,  is  almost  imme- 
diately ignored  in  the  seventh,  and  the  "  one 
Sui»rcme  Court  of  Judicature  "  is  divided  into  two, 
namely,  the  High   Court  of  Justice  and  Her  Ma- 

(e)  See Ilastic  v.  Ilastic,  L.K. , 2  Chan.  D.  3U4  ;  20  Sol.  Jour.  G'J] ,  A.  C. 


EQUITABLE  JURISDICTION  OF  THE  CHANCELLOES.  5 

iestv's  Court  of  Appeal,  while  the  HvAi  Court  of  ^«''-"'?"^- 
Justice  in  like  manner,  is  afterwards  split  up  into      - — 
five  divisions,  which  are  to  all  intents  and  purposes 
different  courts. 

(3.)  The  time  and  manner  of  the  disruption  of  The 
Aula  Regis,  into  the  different  courts  of  Westminster  jurisdiction 
Hall,  and  the  distribution  of  its  judicial  functions  ^^^^Z 
amongst  the  Superior  Courts  of  Law  and  Equity,  c^iiori. 
are  matters  presumably  within  the  knowledge  of 
every  student  of  the  law,  and  require  no  further 
notice  here  ;  nor  need  we  trace  the  rise  and  progress 
of  the  separate  equitable  jurisdiction  of  the  Court 
of  Chancery.  It  is  enough  to  say  that  the  reports 
of  the  Ilecord  Commissioners  establish,  that  it  was 
in  operation  in  the  reign  of  Richard  II.,  commencing 
A.D.  1377,  exactly  500  years  from  the  present  date. 
The  chief  cause  and  occasion  for  the  equitable  inter- 
position of  the  Chancellors  had  been  expressed 
almost  a  century  before,  in  the  Statute  of  West- 
minster (2nd),  A.D.  128.5,  to  the  effect  "that  divers 
of  this  realm  are  disherited  by  reason  that,  in  many 
cases  where  remedy  should  have  been  had,  there 
was  none  provided."  The  remedy  for  this  so  great 
defect  of  justice,  was  also  suggested  by  the  same 
statute,  namely,  that  new  writs  should  be  granted 
as  necessity  arose,  "  Quia  in  novo  casu,  novum  re- 
medium  est  aijponendum"  in  other  words,  that  the 
common  law  jurisprudence  should  be  expanded,  and 
its  procedure  enlarged,  to  meet  the  new  exigencies 
of  society  ;  and  it  is  almost  a  matter  of  certainty, 
that  had  new  writs  been  issued,  and  new  actions  on 
the  case  freely  entertained  as  often  as  occasion  re- 
quired, there  would  never  have  arisen  in  these 
countries,  the  singular  distinction  between  courts 
of  law  and  courts  of  equity,  and  the  jurisdiction 
of    the    Court   of    Chancery    would   have    formed 


()  EQUITABLE  JURISDICTION  OF  THE  CHANCELLORS. 

introduc-  pj^^t  of  the  Ordinary  iurisdiction  of  the  courts  of 

tory  View.   ^  ,  "^    "^ 

—      law. 

But  the  Gommon  law  jurisprudence  of  England 
had  been  framed  in  times  when  men's  relations 
towards  each  other  were  comparatively  simple,  and 
its  remedies  were,  doubtless,  fairly  adequate  to  their 
first  occasion.  When  foreign  commerce  and  internal 
trade  increased,  with  their  accompanying  wealth, 
civilization,  and  complications,  new  relations  sprung 
up,  and  new  rights  and  duties  arose,  unknown  to 
the  common  law,  and  the  Judges  deemed  the  j  uris- 
prudence  which  they  were  administering,  inapplic- 
able or  incapable  of  expansion  or  adaptation  to  the 
new  state  of  things,  or,  what  is  more  probable,  they 
found  themselves,  from  defects  in  their  education 
and  training,  incapable  of  conducting  the  delicate 
process.  From  whatever  cause,  it  is  stated,  that  the 
common  law  Judges  steadily  declined  to  act  upon 
new  writs  outside  their  ancient  formulae,  or  to  adapt 
their  forms  of  pleading  or  "  counting  "  to  them — 
and  thus  the  common  law  jurisprudence  was  pre- 
maturely checked  in  its  natural  development  and 
chained  within  the  narrow  bounds  of  an  artificial 
system  of  pleading.  For  example,  the  common  law 
Judges  absolutely  refused  to  look  into  the  intricate 
and  delicate  relations  of  partners  inter  se,  of  guar- 
dians with  their  wards,  of  trustees  with  their  cestui 
que  trusts,  or  to  distinguish  between  the  marital 
rights  of  the  husband  and  the  separate  property  of 
the  wife.  As  expressed  by  Lord  Justice  James  in 
a  very  recent  case(/) : — "  In  former  years,  and  down 
to  times  within  our  recollection,  Judges,  of  what 
used  to. be  the  common  law  courts  of  this  realm, 
delighted  in  applying  rigidly  and  strictly,  a  scries 

(/)  Ashworth  V.  Outram,  L.  R.,  5  Ch.,  'J4I,  25  W.  R.,  at  p.  S'J8. 
17  May,  1677. 


EQUITABLE  JURISDICTION  OF  THE  CHANCELLORS. 

of  rules  and  maxims  which  their  predecessors  had 
delighted  themselves  in  devising,  although  they  did 
not  always  commend  themselves  to  the  apprehension 
of  the  million.  Amongst  these  maxims  was  one,  by 
which  a  married  woman  was  held  incapable  of 
taking  a  gift  either  from  her  husband  or  from  a 
stranger:  that  the  moment  she  took  it  it  became  her 
husband's  property.  But  the  Court  of  Chancery 
invented  that  blessed  word  and  thing,  the  separate 
use  of  a  married  woman  ;  and  as  that  Court  never 
allowed  itself  to  be  impeded  or  obstructed  by  mere 
technicalities,  it  provided,  that  whenever  it  was 
necessary  to  give  effect  to  that  separate  use  of  a 
married  woman,  the  husband  should  be  made  a 
trustee  of  whatever  property  came  to  him  in  his 
marital  right,  which  ought  to  be  so  held.  That  is, 
the  legal  right  was  not  interfered  with,  but  the  hus- 
band was  made  trustee  for  his  wife." 

It  was  on  this  account,  as  put  by  the  late  Lord 
Westbury  (then  Sir  Richard  Bethel),  that  "the  ad- 
ministration of  justice  founded  upon  accident,  mis- 
take, fraud  ill  its  more  subtle  and  less  gross  forms, 
trusts  and  fiduciary  relations,  the  prevention  of  in- 
justice by  restraining  the  commission  of  meditated 
wrong,  the  direct  and  specific  performance  of  con- 
tracts, was  banished  from  the  established  judicature 
of  the  country  and  remitted  to  another  tribunal, 
presided  over  by  the  king's  Chancellor,  who  being 
commonly  an  educated  ecclesiastic  and  versed  in 
the  Eoman  civil  law,  was  better  qualified  to  ad- 
minister a  jurisprudence  more  comprehensive  and 
flexible,  more  enlightened  and  just  than  the  rude 
common  law  of  England."  The  assumption  of  the 
equitable  jurisdiction  of  the  Court  of  Chancery  was 
thus,  not  so  much  an  invasion  of  the  domain  of  law, 
as  an  occupation  of  an  important  field  which  the 


Inlrnduc- 
tory  View. 


tS  EQUITY  THE  DEVELOPMENT  OF  LAW. 

introduc-   commoii  law  Judo-es  had  neoflected  and  allowed  to 

tory  View.  .  »  ^ 

—  remain  sterile  and  unworked. 
Equity  the  (4.)  The  equitable  Jurisprudence  administered 
iiu'iit  of  by  the  Chancellors,  considered  in  itself,  will  be  found 
to  be  nothing  more  than  the  natural  growth  and 
development  which  appertains  to  the  common  or 
municipal  law  of  every  civilized  community  ;  for, 
as  truly  as  law  is  the  science  of  human  experience, 
it  must  enlarge  and  develop  as  the  society  for 
which  it  is  intended  makes  progress. 

Equity,  in  the  primary  and  philosophical  sense  of 
the  term,  is  presumably  the  basis  of  all  law,  or,  as 
it  is  expressed  by  Bracton,  is  a  "  quality  of  law ;" 
for  every  system  of  law  professes  to  give  expression 
to  the  eternal  principles  of  equity  and  justice.  But 
the  term  "  Equity"  in  most  systems  of  jurisprudence 
is  used  in  a  secondary  and  more  artificial  sense,  and 
as  denoting  something  differeiit  from  that  mere  na- 
tural justice  which  is  the  vital  quality  or  basis  of 
law.  It  is  then  used  in  a  relative  sense,  and  has 
been  well  described  as  the  handmaid  and  interpreter 
of  law.  Thus,  as  the  positive  or  written  law,  how- 
ever complete  and  perfect  it  may  have  been  in  its 
inception,  must,  when  time  advances  and  the  com- 
munity makes  progress,  ftiil  to  meet  the  new  exi- 
gencies of  society  and  the  enlarged  requirements  of 
justice,  it  must  necessarily  be  supplemented,  whe- 
ther by  the  direct  legislation  of  the  Supreme  power, 
or  (as  most  commonly  hai)pens)  by  the  indirect 
legislation  of  the  Judge  wlio  executes  it,  and  who 
presumaljly  derives  his  inspiration  from  the  prin- 
ciples of  natural  justice  and  equity.  In  this  sense, 
equity  represents  the  development  and  enlargement 
in  some  directions,  and  the  modification  and  rectifi- 
cation in  otlicis,  wliicli  the  positive  or  written  law 
requires;   and    in    our    own  jurisprudence    Equity 


CONFLICT  OF  LAW  AND  EQUITY.  9 

represents  most  of  those  enlightened  principles  by  ^^"''''j'''*"^ 

which   the    Municipal   Law  of  England  has  been      

enabled  in  some  degree  to  adapt  itself  to  the  growth 
and  grandeur  of  the  British  empire. 

To  effectuate  this  gradual  development  has  been 
hitherto  the  chief  function  and  duty  of  our  Courts  of 
Equity.  As  stated  by  Sir  George  Jessel  recently,  (g) 
"  Courts  must  take  into  account  the  needs  of  the  time 
as  they  arise  and  accommodate  themselves  thereto ;" 
and  in  the  application  of  this  principle,  we  find  the 
Chancery  Division  of  the  High  Court  of  Justice,  in  the 
case  referred  to,  assuming  jurisdiction  to  restrain  an 
alleged  creditor  from  exercising  his  statutory  right, 
to  present  a  petition  to  wind  up  a  public  company, 
there  being  just  grounds  for  apprehending  that,  in 
the  assertion  of  a  doubtful  right,  an  irreparable  in- 
jury might  be  done  to  a  solvent  company.  (Ji) 

(5.)  In  neither  of  the  senses  of  the  term  Equity,  Conflict  of 

'  .  1  XI       'aw  and 

already  alluded  to — the  primary  and  natural,  or  the  equity, 
secondary  and  relative — was  there  any  inherent  or 
necessary  antagonism  between  Equity  and  Law. 
Indeed,  we  should  expect  the  one  to  be  the  exact 
complement  of  the  other.  "  Each  of  the  two  great 
systems  in  reality  pre-supposes  the  co-existence  of 
the  other.  Each,  while  in  appearance  counteracting, 
has  really  propped  up  the  other."(^') 

Nevertheless,  it  was  by  no  means  accurate  to  say, 
that  as  between  the  systems  of  jurisprudence  ac- 
tually being  administered  by  our  Courts  of  Law  and. 
Equity,  there  was  no  antagonism  or  difference,  save 
merely  one  of  procedure,  or  of  the  particular  forurti 
to  be  resorted  to — a  difference  expressed  by  a  Scot 

{g)  Niger  Merchants  Company  v.  Capper,  25  W.  R.,  365,  M.  R.  2Gtli 
January,  1877. 
(/O  lb. 

(0  See  "The  Science  of  Law,"  by  Sheldon  Amos,  pp.  3S0-T. 

B  o 


3  0  CONFLICT  OF  LAW  AND  EQUITY. 

introihic-  i\^\^  \\\^^Q,  soiiie  little  time  ae'o,  in  an  address  to  the 

tory  I  ieu\  jo  o    ' 

—  Jurisprudence  Department  of  a  Social  Science  Con- 
gress, to  be  "  not  as  to  what  the  right  was  or  what 
the  remedy  should  be,  but  solely  from  what  tribunal 
redress  can  be  given."(j)  Nor  can  we  take  the  cor- 
rection given  by  a  celebrated  English  judge  with  a 
Scottish  education  (Jc)  of  what  he  deemed  to  be  a 
popular  error,  to  be  more  sound,  when  he  says  : — 
"  It  is  a  more  correct  description  of  the  Courts  of 
Equity  to  say,  that  they  deal  with  questions  of  law 
different  from  those  which  the  Courts  of  Common 
Law  deal  with,  than  to  say  that  laAV  and  equity  are 
different." 

Not  merely  were  the  actual  subjects-matter  of  the 
jurisdiction  of  the  Courts  of  Law  and  Equity  in 
most  cases  different,  but  the  same  subjects  were 
regarded  from  almost  opposite  points  of  view,  and 
what  was  a  common  law  right,  might  have  been  an 
equitable  wrong.  What  a  court  of  law  looked  on 
as  being  of  the  essence  and  affecting  the  vital  ex- 
istence of  a  contract,  a  Court  of  Equity  might  ti'eat 
as  capable  of  being  dispensed  with,  condoned,  or 
compensated  for;  whilst,  conversely,  contracts  which 
a  court  of  law  treated  as  broken  and  subjects  merely 
for  compensation  in  damages,  a  Court  of  Equity 
would  hold  to  be  subsisting  so  far  that  they  should 
be  carried  into  full  specific  execution.  Courts  of 
law  would  feel  themselves  constrained  to  hold  de- 
fences untenable  which  in  the  equity  courts  would 
be  valid,  so  that  a  Court  of  Law  was  bound  to  give 
a  judgment  in  favour  of  a  plaintiff  which  the  Court 
of  Equity  would  restrain  him  from  executing. 
Their  views  upon  questions  relating  to  waste, 
merger  of  estates,  extinguishment  of  charges,  en- 

(j)  Lord  Justice  Clerk  (Moncreiff),  Sept.  30,  1874. 
(/,)  Lord  Bruugliam's  Works,  vol.  xi.,  p.  313. 


DIVERSITY  OF  COURTS.  1 1 

forcement  of  penalties  and  clauses  of  forfeiture,  and  l^j.^'^yl''^ 
even  respecting   the  application  of  the  Statute  of      — 
Frauds,  were  diverse  and  conflicting. 

Besides  all  this,  their  forms  of  procedure  were  dif- 
ferent in  quality  and  ahiiost  opposite  in  direction. 
The  Common  Law  offered  redress  for  an  injury  after 
it  was  committed  and  suffered,  as  in  the  case  of  the 
ancient  remedy  by  Writ  of  Estrepement,  whilst 
Equity  endeavoured  to  prevent  the  commission  of 
the  inj iiry  beforehand.  The  common  law  professed 
to  adopt  the  maxim  : — "  Prcestat  cautela  quam  me- 
dela,"  but  its  brevia  antici'pantia  were  so  tardy  and 
inefficient  that  before  the  prompt  and  timely  in- 
junction of  the  Court  of  Chancery  they  fell' into 
obsolescence.  In  the  same  way,  in  the  face  of  de- 
crees for  actual  specific  performance  of  the  very 
thing  contracted  for,  or  the  delivery  of  the  identical 
chattel  detained,  enforced  by  direct  pressure  on  the 
person  of  the  delinquent,  the  remedy  by  way  of 
damages  was  found  to  be  wholly  inadequate,  espe- 
cially in  respect  of  certain  chattels  such  as  family 
pictures  or  plate,  or  other  heirlooms  and  title-deeds, 
which  would  be  incapable  of  due  estimation  or  re- 
compense. 

(6.)  It  seems  at  least  probable  that  antagonism  Diversity  of 
and  divergence,  to  this  extent,  could  scarcely  have 
developed  themselves  in  English  Jurisj)rudence,  had 
law  and  equity  been  associated  in  a  common  forwm, 
and  administered  by  one  and  the  same  tribunal. 
But  when,  instead  of  law  and  equity  travelling  to- 
gether pari  passu,  law  stopped  short  at  a  certain 
point,  whilst  equity  was  progressing  and  was  being- 
administered  in  a  different  court,  from  the  ordinaiy 
tribunals  of  the  country,  it  became  inevitable  that 
law  and  equity  should  become  not  merely  disso- 
ciated and  estranged  from  one  another,  but  that  in 


12  DIVERSITY  OF  COURTS. 

introduc-   course  of  time,  they  would  take  different  and  oppo- 

torij  I  lew.  .  .  . 

—  site  views  respecting  the  same  subject-matter,  until 
at  length  the  term  "  equity"  would  acquire  a  signi- 
fication denotino;  something  entirely  different  from 
and,  as  it  were,  antagonistic  to  common  law.  In  the 
event,  equity  law  became  a  separate  and  distinct 
science  from  common  law,  and  was  as  Lord  Justice 
Christian  has  tersely  described  it,  "  the  more  ad- 
vanced and  beneficent  code  which  had  been  nurtured 
by  the  Chancellors." 

The  remission  of  equity  to  a  different  tribunal 
from  the  ordinary  courts  of  law  was,  as  the  reader 
is  aware,  a  peculiarity  of  English  juiisprudence.  In 
the  principal  states  of  Eui'ope,  as  in  Scotland,  the 
administration  of  law  and  equity  was  committed  to 
one  and  the  same  tribunal,  and  there  was  no  abso- 
lute reason  in  the  nature  of  the  subjects,  why  the 
Jud^i-es  who  administered  the  common  law  of  Eng- 
land,  should  not  also  have  recognised  and  respected, 
if  they  did  not  administer,  that  department  of  law 
which  we  call  equity.  Indeed  the  separation  has 
been  accounted  for  historically,  as  an  accident,  or  a 
misadventure,  attributable  chiefly  to  the  circum- 
stance, that  the  Roman  c,\Y\\\a,\Y,  fontes  i'psissimi 
juris,  which  had  been  partially  administered  in  Bri- 
tain during  the  300  years  of  the  Roman  occupation, 
was,  after  the  Norman  conquest,  and  probably  in 
deference  to  the  jealousy  and  prejudices  of  the  Saxon 
people,  banished  from  the  courts  of  common  law, 
and  driven  to  take  refuge  in  the  universities  and  the 
spnitual  courts,  not,  however,  before  that  many  of  its 
maxims  and  principles  had  become  incorporated  with 
the  common  law. 

From  tills  untoward  circumstance  it  happened, 
that  the  minds  of  Englisli  common  lawyers  became 
estranged  from  the  most  important  branches  of  legal 


ADVANTAGES  OF  SPECIAL  TRIBUXALS.  lo 

science,  and  were  allowed  to  waste  their  enero-ies,    inti'odiu- 

®  torn  yicw. 

for  the  most  part,  on  the  barren  study  of  feudal  — - 
tenures  and  special  pleading,  the  latter,  a  branch  of 
the  merest  driest  technical  art  rather  than  of  leaal 
science,  and  their  consequent  isolation  from  the 
broader  and  larger  jurisprudence  of  the  Roman 
empire,  gave  occasion  for  the  establishment  of  a 
separate  court  in  which  the  more  advanced  and 
enlightened  principles  of  equity  might  be  adminis- 
tered. It  also  necessitated  the  establishment  of 
another  set  of  courts  and  another  and  distinct  order 
of  lawyers,  versed  in  the  same  civil  law,  to  whom 
the  administration  of  the  law  relating  to  wills,  mar- 
riage, and  divorce,  became  appropriated  ;  and  lastly, 
from  the  same  cause,  a  third,  and  very  important 
branch  of  law — a  portion  of  the  Jus  Gentium — was 
devolved  on  the  Court  of  Admiralty,  and  became 
the  inheritance  of  a  separatii  body  of  practi- 
tioners (I). 

(7.)  The  existence  of  separate  courts,  with  special  Advantag.s 

^     "^  .       .     , .      .  .  I  .  of  special 

and  distinct  jurisdictions,  ranging  over  subjects  tribunals, 
well  defined  and  clearly  distinguished  must,  when 
regarded  from  a  certain  point  of  view,  be  admitted 
to  be  a  wise  and  convenient  division  of  labour, 
involving,  doubtless,  an  extra  expenditure  of  judi- 
cial and  official  power,  but  amply  compensating  the 
loss  in  that  direction,  by  the  superior  value  of  the 
work  done,  by  the  greater  accuracy  and  knowledge 
and  competency  with  which  the  particular  business 
entrusted  to  each  tribunal  would  be  dealt  with, 
being  disposed  of  by  Judges  whose  attention  was 
confined  to  the  administration  of  one  branch  of  the 
law  and  not  distracted  amongst  many.  In  some 
branches  of  jurisdiction,  the  subjects  are  so  special, 

(/)  See  Essay  on  this  subject  by  Lord  Westbury,  then  Sir  K.  Bethel, 
read  before  Law  Amendment  Society. 


14  ADVANTAGES  OF  SPECIAL  TRIBUNALS. 

introduc-   take,  for  example,  Admiralty  cases,  that  "  the  value 

tory  J  lew.  ^  "^  \ 

—  can  scarcely  be  overrated  of  havinrj  a  Judo'e  to 
preside,  skilled  in  sea-craft,  and  habituated  to  the 
incidents  of  navigation  and  the  peculiar  turns  of 
thought  and  speech  which  characterize  seafaring 
people,"  and  to  which  ordinary  Judges  cannot  be 
expected  to  attain  or  reasonably  asked  to  acquire. 
So  again,  although  there  may  not  be  any  such 
marked  peculiarity  or  entire  specialty  in  equity 
jurisprudence  as  contrasted  with  law,  yet  we  may 
presume,  that  certain  judges,  being  confined  to  the 
department  of  trusts  and  fiduciary  relations,  the 
protection  of  the  interests  of  married  women,  in- 
fants, &c.,  the  correction  of  fraud  in  its  more  subtle 
phases  and  kindred  subjects,  would  develop  a  higher 
order  of  judicial  instinct,  and  a  superior  habit  of 
moral  discrimination,  capable  of  following  the* 
faintest  traces  of  misrepresentation  or  undue  in- 
fluence, or  the  accidental  or  acquired  dominion  of 
one  member  of  society  over  another,  than  would,  in 
all  probability,  be  attained  by  a  Judge,  whose  mind 
was  as  frequently  engaged  in  the  hurry  and  bustle 
of  Nisi  Prius  or  criminal  or  political  trials,  as  in  the 
hearing  of  equity  causes. 

The  experiment  has  already  been  on  its  trial  in 
England,  of  committing  the  determination  of  nice 
questions  of  equity  jurisprudence  to  Judges  trained 
in  other  Courts — such,  for  example,  as  the  amount 
of  independent  advice  and  protection  which  a  pur- 
chaser buying  property  from  an  inexperienced 
young  man  emerging  from  minority,  is,  by  the 
principles  of  equity,  bound  to  establisli  in  proof 
as  having  been  afibrded  in  order  to  sustain  his  pur- 
chase-deed when  challenged  and  impeached  on  the 
ground  of  inadequacy  of  the  consideration.  The 
committing  of  such  questions  to  the  determination 


ADVANTAGES  OF  SPECIAL  TEIBUNALS.  15 


of  judges,  whether  in  the  primary  or  the  appellate  '^"'^''''' 
courts,  exclusively  trained  in  the  broader  and  less  — ^ 
exact  principles  of  the  common  law,  must  necessarily 
be  attended  with  no  little  danger  to  the  interests  of 
society,  at  least  during  that  stage  of  transition 
through  which  the  English  courts  must  have  to 
pass,  before  their  common  law  judges  shall  have 
become  familiar  with  the  principles  of  equity.  In 
the  w^ell-known  case  of  Bolinbroke  v.  O'Rorke,  which 
came  before  the  House  of  Lords  on  appeal  from  Ire- 
land, and  turning  mainly  on  the  nice  point  of  equity 
law  noticed  by  way  of  illustration  above,  three 
Lords  of  Parliament,  two  of  whom  had  their  train- 
ing and  practice  in  Courts  of  Common  Law,  and  one 
in  the  Scotch  courts,  happened  to  differ  from  and 
overrule  the  most  experienced  if  not  the  highest 
authority  on  Equity  Law  in  England.  They  also, 
of  course,  differed  from  the  two  eminent  Juderes  of 
the  Irish  Court  of  Appeal  in  Chancery,  although 
supported  by  the  very  high  authority  of  the  Master 
of  the  Rolls  in  Ireland,  a  Judge  whose  experience 
had  been  acquired  in  Courts  of  Equity  as  well  as 
in  Courts  of  Law. 

However,  w^e  are  so  far  fortunate  in  Ireland,  that 
most  of  the  judges  upon  the  common  law  bench, 
have  had  their  more  ripened  faculties  and  maturer 
years  employed  in  Courts  of  Equity,  at  times  more 
or  less  recent,  and  to  them  the  joint  administration 
of  law  and  equity  will  not  prove  to  be  a  trial  of  so 
much  difficulty  or  danger  as  it  may  be  in  England. 
But  it  seems  that  neither  the  great  American  jurist, 
Mr.  Justice  Story,  nor  Lord  Cottenham,  probably 
the  most  profound  lawyer  who  has  been  Chancellor 
.  since  Lord  Eldon,  were  favourable  to  this  union  of 
different  jurisdictions  in  the  same  judicature.  Lord 
Cottenham,  so  far  from  advocating  it,  declared  it  as 


'hir- 

iew. 


16  UNCERTAINTY  OF  THE  FORUM. 

introdnc-  ^]^g  result  of  loiio;  experience  to  be  an  evil  and  an 

tor  [I  luu;  o         1  P  T  t        r"      ' 

—  inconvenience,  and  he  preferred  not  the  fusion  oi 
jurisdictions,  but  their  separation,  and,  therefore, 
carried  the  Act  for  abolishing  the  equity  jurisdiction 
of  the  Court  of  Exchequer,  and  vesting  it  in  the 
Court  of  Chancery  (m). 
uncer-  (g  )  £^t  liowcver  o;i'eat  and  undoubted  may  have 

taintv  of  ^    '^  rv  i   n  l  i       •     • 

the  fonni.  been  the  advantages  onered  by  a  separate  adminis- 
tration of  distinct  branches  of  jurisdiction,  it  cannot 
be  denied  that  it  was  attended  with  some  consider- 
able drawbacks  and  inconveniences,  which  appeal 
more  strongly  to  the  popular  mind  than  any  imagi- 
nable perfection  in  the  article  of  justice  which  the 
particular  tribunal  was  capable  of  putting  forth. 
The  first  and  most  prominent  of  these  was  the  occa- 
sional uncertainty  as  to  which  was  the  proper 
tribunal  to  be  resorted  to. 

When  the  precise  limits  of  jurisdiction  became  in 
any  degree  uncertain  or  intermixed,  especially  where 
the  bounds  were  approximate  or  conterminous,  but 
not  absolutely  the  same,  much  of  the  special  advan- 
tage to  be  derived  from  the  existence  of  separate 
Courts  was  apt  to  be  imperilled  or  lost ;  for  if  the 
suitor  mistook  the  tribunal  which  properly  had 
cognizance  of  his  suit,  he  might  fail  altogether  in 
his  attempt  to  obtain  relief.  It  was  a  misfortune, 
and  not  unnaturally  considered  a  reproach  to  justice, 
that  a  suitor  having  good  and  substantial  ground  of 
complaint  should  encounter  difficulty,  or  danger  of 
mistake,  in  finding  the  appropriate  tribunal  to  ad- 
minister relief. 

The  series  of  cases  collected  in  the  2nd  volume  of 
Daniel's  Chancery  Practice,  5th  edition,  p.  947,  in 
note  (a),  might  be  cited  as  examples  to  illustrate 

(m)  See  "Expositiou  of  our  Judicial  System,"  by  W.  F.  Fiiilasoii, 
p.  U. 


UNCERTAINTY  OF  THE  FORUM.  17 

this.  In  most  of  the  cases  enumerated  the  plaintiffs  /«'''"'/."c- 

■•-  torn  1  u'xr. 

bill  for  specific  performance  of  a  contract  had  been      

dismissed  from  Chancery,  without  prejudice  to  his 
beeinninof  de  novo  at  law.  Assuming  that  his  case 
was  true,  each  plaintiff  was  plainly  entitled  to  relief 
either  in  the  shape  of  specific  performance  of  the 
contract  or  at  least  in  damages  for  its  breach.  The 
Court  of  Chancery  could  give  relief  in  either  form 
in  one  class  of  cases,  but  it  so  happened  that  in  the 
class  to  which  the  plaintiff's  contention  belonged, 
the  Court  of  Chancery  had  no  option  but  to  decree 
specific  performance,  or  dismiss  the  bill  if  the  plain- 
tiff was  not  entitled  to  that.  Under  the  Judicature 
Act  the  branch  of  the  Court  appealed  to  may  in 
every  case  either  direct  an  inquiry  as  to  damages 
or  grant  the  primary  relief  prayed  for,  subject,  how- 
ever, to  the  reasonable  qualification,  that  the  plain- 
tiff must  make  a  case  for  and  apprize  his  adversary 
that  he  seeks  this  alternative  relief  {n). 

In  suits  to  recover  land  if  the  plaintiff  went  into 
a  court  of  law,  and  his  title  turned  out  to  be  equit- 
able, he  was  non-suited,  if  he  went  into  equity  and 
his  title  proved  to  be  legal  his  bill  was  dismissed  as 
an  ejectment  bill,  (o)  Again  if  a  plaintiff  filed  a 
bill  in  Chancery  against  his  agent  for  an  account, 
and  the  result  of  the  evidence  was  to  establish  a  case 
involving  mainly  the  element  of  negligence,  he  found 
he  had  gone  to  the  wrong  tribunal,  and  he  was  dis- 
missed under  circumstances  which  his  legal  advisers 
might  not  easily  have  foreseen,  (j))  At  one  time  it 
was  matter  of  uncertainty  whether  or  not  the  Court 

00  See  Kino  v.  Riidkin,  W.  N.,  1877,  p.  170.  21  Sol.  Jour.  CS'J. 
Jry,  J. 

(o)  See  a  recent  case  of  this  nature,  Moore  v.  Kempton,  Ir.  Rep.  4  Eq., 
306,  v.  C. 

(p)  See  Great  Western  Insurance  v.  Cunliffe,  L.  R.,  9  Ch.,  525. 


18  UNCERTAINTY  OF  THE  FORUM. 

introduc-   of  Chancery  could  a:ive  relief  ao-ainst  an  as:ent   or 

tory  View,  ^  o  o  o 

solicitor  for  negligence,  apart  from  fraud,  or  whether 

a  court  of  law  had  not  the  exclusive  jurisdiction. 
Vice-Chancellor  Stuart  thought  the  Court  of  Chan- 
cery had  jurisdiction,  {q)  later  Judges  have  held 
that  it  had  not,  (r)  but  under  the  new  judicature, 
the  claim  can  be  sustained  in  the  Chancery  Divi- 
sion as  in  any  other  division,  because  they  are  now 
all  one  court,  (s) 

Sometimes  a  plaintiff's  claim  might  lie  along  the 
border-land  of  contract  and  trust,  and  as  the  bound- 
aries were  somewhat  obscurely  marked,  the  suitor 
ran  considerable  risk  of  finding  himself  landed  in 
the  wrong  territory.  Thus  in  one  case  (t)  a  Vice- 
Chancellor  had  held  that  the  facts  proved  in  evidence 
constituted  a  trust  to  be  executed  in  equity,  but  the 
House  of  Lords  considered  that  they  amounted  to 
no  more  than  a  personal  engagement  by  the  defend- 
ant in  favour  of  the  plaintiff,  subject  to  certain 
conditions  to  be  performed  by  him,  and  that  the 
plaintiff's  claim  resolved  itself  into  a  mere  money 
demand,  and  was  the  subject  for  an  action  at  law. 
This  case  had  been  ingeniously  brought  into  equity 
as  one  of  trust,  to  evade  the  stringent  terms  of  the 
contract  as  to  time,  in  respect  of  which  the  Court  of 
Chancery  happened  to  hold  less  strict  views  than 
did  courts  of  law,  the  case  thus  illustrating  at  once, 
the  uncertainty  of  the  forum,  and  the  different 
quality  of  justice  which  tlie  two  tribunals  of  law 
and  equity  were  in  the  habit  of  administering. 


Ql)  ( 'hapnian  v.  Cliapmaii,  L.  R.,  9  Eq.,  294. 

(7-)Mare  v.  Lewis,  Ir.  Rep.,  4  Eq.,  219,  V.  C.  British  Mutual  Invest- 
ment Company  v.  Cobbold,  L.  R.,  19  Eq.,  C27. 

(s)  See  jierW.  C.  Malins  in  Phospliate  yewai,'c  Company  v.  Ilartniout, 
L.  R.,  5  Chan.  D.,  at  p.  44;5. 

(0  Morgan  v.  Lariviuic,  L.  R.,  9  IT.  L.  C,  423. 


UNCERTAINTY  OF  THE  FORUM.  19 

In  a  recent  case  in  our  own  courts  (u)  the  plain-  ^>  ''w{.'*'- 

tiff  sought  the  assistance  of  the  Court  of  Chancery      

for  specific  jDerformance  of  a  contract  of  partner.sliip, 
a  kind  of  relief  exclusively  within  its  jurisdiction. 
In  evidence  it  turned  out  that  the  only  breach  of  the 
contract  established  against  the  defendant  was  his 
failure  to  pay  in  a  certain  share  of  the  capital, 
whereby  the  other  partner,  the  plaintifi*  was  con- 
strained to  advance  his  own  money  to  meet  current 
expenses,  but  this  again  resolved  itself  into  a  mere 
payment  of  money  entitling  the  plaintiff  to  be  re- 
paid his  advance  with  interest,  and  that  again  was 
a  claim  which  should  properly  have  been  enforced 
by  an  action  at  law,  and  accordingly  the  plaintiff's 
bill  was  dismissed  from  Chancery  of  necessity  and 
with  seeming  reluctance,  as  it  was  dismissed  with- 
out costs.  The  consequence  of  such  a  mistake  as 
this  in  many  instances  was,  that  the  claim  though 
well  founded  and  brought  forward  originally  in  good 
time,  was  afterwards  too  late  for  a  Iresh  action  in 
another  court,  and  would  there  be  defeated  by  the 
Statute  of  Limitations,  (v) 

A  remarkable  illustration  of  the  nature  and  value 
of  the  change  in  judicature  regarded  in  this  aspect 
occurred  immediately  after  the  English  Act  came 
into  operation.  A  cause  had  been  pending  in  the 
Court  of  Chancery,  and  was  transferred  to  the  High 
Court  of  Justice.  The  bill  had  been  demurred  to 
on  the  ground  that  the  suit  should  have  been  by 
action  at  law  as  for  a  mere  money  demand,  like  as 
in  the  two  cases  already  cited.     The  demurrer,  for- 

Cw)Baguell  v.  EUwards,  Ir.  Rep.,  10  Eq.,  215,  V.  C. 

(y)  See  a  case  of  this  nature  in  Fievet  v.  Mauby,  24  W.  R.  699  V.  C.  M., 
where  the  plaintiff's  debt  was  kept  alive  in  the  Common  Pleas  by 
section  11  of  15  &  16  Vic.,  c.  76,  a  writ  having  been  issued  in  due 
time,  but  was  nevertheless  barred  in  the  Court  of  Chancery  by  the 
Statute  of  Limitations. 


20 


COMPETITION  OF  THE  FOEUM. 


Competi- 
tion ot  the 
loruni. 


jiitroduc-   tunatelv  for  the  plaintiff,  remained  over  to  be  aro'iied 

ton/  Vip)>,        .  ».  1  '  o 

in  the  High  Court  of  Justice,  and  it  was  at   once 

overruled,  on  the  ground  that,  though  the  action 
was  proper  for  the  Common  Law  division  rather 
than  for  the  Chancery  division,  yet  now,  both  form- 
ing one  and  the  same  Court,  the  action  was  brought 
in  the  proper  Court,  and  could  not  be  dismissed, 
though  it  might  be  transferred,  (tu) 

(9.)  The  uncertainty  of  the  forum  was  exhibited 
in  a  still  more  aggravating  form,  where  the  different 
tribunals,  ex.  gr.  Courts  of  Law  and  Equity,  hap- 
pened to  exercise  a  jurisdiction  in  common  or 
practically  concurrent  in  respect  of  the  same  subject- 
matter.  Take,  for  example,  the  subject  of  fraud 
and  misrepresentation,  and  the  case  of  a  policy  of 
life  insurance  alleged  to  have  been  entered  into 
under  false  representations  of  the  health  and  habits 
of  life  of  the  assured.  An  action-  was  brought  by 
the  assignee  of  the  policy  to  recover  the  amount 
secured  by  it.  The  company  might,  at  the  same 
time  or  immediately  after,  file  a  bill  in  Cliancery 
to  have  the  same  policy  declared  void,  and  to  re- 
strain the  institution  of  prosecution  of  the  action  at 
law.  The  one  party  preferred  to  have  the  case  tried 
at  law  ;  the  other  wished  to  have  it  determined  in 
equity.  The  Court  of  Law  had  undoubted  jurisdic- 
tion to  entertain  the  action,  and  the  Court  of 
Chancery  had  equally  undouljtcd  and  complete  juris- 
diction to  withdraw  the  question  from  the  Court  of 
Law,  and  to  restrain  the  action  from  proceeding,  if, 
in  its  discretion,  the  case  apjieared  to  be  one  more 
proper  to  be  tried  in  equity  ;  or,  conversely,  if  it 
thought  it  better  suited  for  a  jury,  it  might  stay  its 
own  proceeding,  and  permit  the  action  to  i)rocecd 


(«•)  Vagg  V.  Shii.pey,  20 Sol.  Jour.,  131. 


INSUFFICIENCY  OF  THE  FORUM.  21 

at  la^v.  The  discretion,  doubtless,  was  aiudicial  dis-  Jntroduc- 

"  tory  view. 

cretion,  exercised  subject  to  challenge,  and  to  review,  — 
and  reversal,  if  it  were  not  a  sound  discretion ;  but 
no  amount  of  sagacity  beforehand  on  the  part  of  the 
legal  advisers  on  either  side,  could  insure;  the  suitor 
how  and  in'  what  manner  "  the  question  of  the 
foni^n"  might  be  determined,  or  which  tribunal 
would  ultimately  retain  possession  of  the  lis.  One 
equity  judge  might,  from  the  conflict  of  evidence, 
consider  that  the  action  ought  to  proceed  at  law ;  (x) 
Avhilst  another  iudire  mio'ht  think  the   balance  of 

JO  O 

convenience  inclined  towards  withdrawing  the  ques- 
tion from  law  to  equity,  and  accordingly  would  re- 
strain the  action. 

The  Court  of  Chancery,  when  it  once  entertained 
a  suit  in  relation  to  any  matter,  dealt  as  far  as  it 
could  with  the  whole  case,  and  not  with  a  part  of 
it  only ;  (y)  and  from  the  laudable  desire  to  prevent 
multiplicity  of  suits,  would  not  permit  any  party, 
without  its  leave,  to  bring  a  complaint  touching  it 
before  another  Court ;  and  it  was  sometimes  dis- 
posed to  treat  the  bringing  of  an  action  or  suit 
before  another  tribunal  overhauling  an  account 
taken  before  itself,  as  a  contempt  of  its  authority 
punishable  by  attachment,  (z) 

(10.)  Where  the  jurisdiction  exercised  by  one  of  insuffi- 
several  Courts  was  neither  exclusive  nor  concurrent,  the  lorum. 
but  auxiliary  and  supplemental  to  that  of  another 
Court,  and  necessary  to  enable  the  latter  to  do  full 
and  complete  justice  in  its  own  proper  department, 

(x)  See  Scottish  Amicable  Society  v.  Fuller.  Ir.  Rep.,  2  Eq.,  53 ;  Life 
Insurance  Association  of  Scotland  v.  M-Blain,  Ir.  Rep.,  9  Eq.,  176, 
M.  R. 

(jO  See  Phelps  v.  Prothero,  7  De  Gex,  M.  &  G.,  734.  per  L.  .J.  Turner. 

(s)  See  Bell  v.  O'Reilly,  2  Scho.  &  Lef.,  430  ;  audHardman  r.  Leech, 
Ir.  Rep.,  8  Eq.,  400  Y.  C.    . 


22  INSUFFICIENCY  OF  THE  FORU-M. 

introdnc-  our  jurisprudence  was  exposed  to  just  criticism  on 
—  the  ground  of  its  insufficiency.  It  was  held  forth  as 
a  scandal  to  a  judicial  system,  that  any  one  of  its 
tribunals  should,  in  matters  properly  within  its 
cognizance,  have  need  of  the  aid  of  another  tribunal, 
or  that  a  remedy  should  be  sought  partly  in  one 
Court  and  partly  in  another.  Yet  in  this  manner, 
even  in  very  recent  times.  Courts  of  Law  used  to 
call  in  aid  the  jurisdiction  of  a  Court  of  Equity,  and 
a  Court  of  Equity  the  jurisdiction  of  a  Court  of 
Law,  or  of  the  Court  of  Probate,  or  of  Landed  Estates, 
to  effectuate  and  complete  their  own  proper  func- 
tions, and  finally  dispose  of  the  contention  submitted 
to  them. 

A  striking  instance  of  this  imperfection  of  juris- 
diction is  to  be  found  in  a  recent  case  in  the  Court 
of  Probate,  (a)  A  dispute  arose  between  three 
brothers  respecting  the  admission  of  a  certain 
testamentary  paper  to  probate.  The  afiair  was 
prudently  compromised,  and  an  arrangement  sanc- 
tioned by  the  judge  and  embodied  in  a  coEseht 
under  which  the  right  to  probate  was  conceded  to 
one  brother,  and  a  leasehold  estate  in  land  belong- 
ing to  testator,  of  which  another  brother  had  pos- 
sessed himself,  was  to  be  retained  by  him,  on  condi- 
tion that  he  should  execute  a  mortgage  of  portion 
of  it  to  the  executor  to  secure  a  debt  which  he  had 
OAved  to  the  testator.  Nothing  remained  but  that 
the  mortgage  should  be  executed  and  its  terms 
settled  in  case  the  parties  differed.  The  parties  did 
differ,  but  on  a  very  small  point  indeed — namely, 
whether  the  mortgage  should  be  given  to  the  exe- 
cutor in  his  personal  or  in  his  representative 
capacity.     The  Court  of  Probate  felt  bound  to  de- 

(a)  Hammond  v.  Hammond,  Jr.  Rep.,  8  Eq.,  322. 


COLLISION  OF  THE  FORUM.  ^  23 

cline  to  make  the  consent  a  rule  of  Court  or  to  I'ltrodnc- 

,  .  ,  ,     ,  torn  View. 

enforce  its  execution,  on  the  ground  that  it  had  no  — 
jurisdiction  or  official  machinery  to  settle  deeds  or 
administer  assets.  The  result  was  a  suit  in  Chan- 
cery— two  years  of  litigation — costs  of  the  successful 
party  over  £7G,  which  he  never  recovered,  while 
the  dispute  concerned  a  sum  of  £33  Qs.  8d.,  the  dis- 
puted third  of  the  mortgage  money. 

The  Court  of  Chancery,  as  we  have  said,  when  it 
once  entertained  a  suit  dealt  with  the  whole  case  as 
far  as  it  could  and  not  with  a  part  of  it  only ;  but 
sometimes  in  the  endeavour  to  deal  with  the  whole 
subject-matter  of  the  contention  it  found  that  its 
powers,  though  otherwise  so  great  and  flexible, 
proved  inadequate  to  do  full  and  complete  justice 
between  the  parties  without  the  aid  of  some  external 
tribunal. 

(11.)  But  probably  the  most  anomalous  and  collision  of 
vexatious  feature  of  our  recent  judicature,  was  the  ^^  "'"™" 
jurisdiction  exercised  by  one  Court  to  restrain  pro- 
ceedings in  another  Court,  although  co-ordinate  in 
rank  with  itself,  and  one  over  which  it  had  no 
direct  or  appellate  authority ;  yet  by  an  order 
addressed  not  directly  to  the  judges,  but  to  the 
suitor,  it  practically  interrupted,  modified,  or  an- 
nulled the  decision  of  th(}  Court  whose  proceedings 
were  restrained.  Very  frequently  the  interdicting 
Court  (usually  the  Court  of  Chancery),  had  no 
jurisdiction  in  itself  to  determine  the  controversy. 
It  might  be  a  case  within  the  exclusive  jurisdiction 
of  a  Court  of  Law,  or  of  a  Court  of  Probate,  (6)  or 
even  a  Court  of  Criminal  Jurisdiction,  (c)  or  relating 
to  the  liberty  of  the  subject,  upon  an  application  for 


(i)  See  Wilcocks  v.  Carter,  L.  R.,  10  Chan.  440. 
(c)  See  Saull  v.  Browne,  L.  R  ,  10  Cliau.  64. 


24  MODERN  ENLARGEMENT  OF  JURISDICTION. 

introrhtc-  a  Writ  of  Jiahecis  corjpus.  In  these  cases,  the  object 
oiy^ew.  ^^  ^^^  interposition  of  the  Court  of  Chancery  was 
to  prevent  the  jurisdiction  of  another  Court  of 
Justice  being  invoked  unjustly,  or  its  procedure 
fraudulently  taken  advantage  of  and  abused  (d'). 
Occasionally  one  injunction  might  overlap  another, 
the  restraining  Court  itself  being  controlled  by  a 
third  Court,  as,  for  example,  the  Court  of  Admiralty 
restraining  an  action  in  the  Court  of  Common  Pleas, 
and  itself  afterwards  counter-restrained  by  way  of 
prohibition  by  the  Court  of  Exchequer  in  the  very 
.same  matter,  (e) 

A  jurisdiction  which  virtually  constituted  one 
Court  of  Justice  custos  morum  of  another,  control- 
ling and  counteracting  its  procedure  and  preventing 
its  judgments  being  converted  into  instruments  of 
injustice,  could  scarcely  have  been  tolerated  but 
under  a  system  of  judicature,  which  compelled 
certain  Courts  to  administer  law  rigidly,  inflexibly, 
and  irrespective  of  natural  justice  ;  while  it  estab- 
lished other  Courts  to  correct  the  injustice  which 
they  did,  and  the  remedy  provided  was,  at  the 
very  best,  circuitous  and  dilatory,  alike  expen- 
sive and  vexatious,  and  eminently  calculated  to 
bring  the  entire  administration  of  justice  into  dis- 
repute. 
Modern  (12.)  The  policy  of  modern  legislation  has  been 

enhuge-      ^^  fumish  evcrv  court  of  justice  with  full  and  indc- 

111 t'llt  01  •/  *^ 

jurisdiction,  pendent  powers,  adequate  for  the  complete  determi- 

•     nation  of  the  suit  or  matter  intrusted  to  it.     Upon 

this  principle,  the  Common  Law  Procedure  Acts 

had  conferred  upon  the  courts  of  common  law  some 

of  the  most  valuable  portions  of  the  former  jurisdic- 

(d")  See  O'Neill  v.  I'.rowne,  9  Ir.  Eq.  Kop.  131,  L.  C.  Sugdeii. 
((')  See  The  Normandy,  L.  K.,  3  Atlm.  &  Eccl.  152  ;  James  v.  South- 
western Ituilway  Comiiany,  L.  K.,  7  Exch.  287. 


MODERN  ENLARGEMENT  OF  JURISDICTION.  2' 

tion  of  courts  of  equity,  notably,  as  reo-ards  dis-   Tntroduc- 

_  ^  ^  tory  I  lew 

coveiy  and  production  of  documents,  equitable  de-  — 
fences,  and  injunctions.  On  the  other  hand,  the 
Acts  for  the  improvement  of  the  jurisdiction  of 
equity,  and  those  called  after  Lord  Cairns  and  Sir 
John  Rolt,  conferred  many  of  the  distinctive  powers 
and  duties  of  courts  of  common  law  upon  the  equity 
courts.  Other  statutes  have  conferred  extensive 
powers  on  the  Court  of  Probate  and  the  Court  of 
Admiralty,  ancillary  to  their  primary  jurisdiction. 
This  policy  received  a  remarkable  development  in 
the  enactments  which  armed  not  merely  the  Court 
of  Bankruptcy,  but  every  County  Court  in  England 
having  bankruptcy  jurisdiction,  with  "  all  the 
powers,  jurisdiction,  and  privileges  possessed  by 
any  Judge  of  the  Court  of  Chancery,  or  of  the 
Superior  Courts  of  Common  Law,"  (/)  and  more- 
over, with  powers  to  determine,  as  a  matter  of  fact, 
the  expediency  or  necessity  for  entertaining  and 
deciding  any  question  whether  of  fact  or  law  which 
affects  the  realization  and  distribution  of  the  pro- 
perty of  the  bankrupt,  subject  only  to  an  appeal  to 
the  Court  of  Appeal  in  Chancery.  So  complete  and 
self-contained  has  this  jurisdiction  been  made,  that 
to  a  bill  filed  by  an  insolvent  against  his  trustee  for 
rectification  of  a  deed  and  to  take  accounts,  a 
demurrer  was  allowed  on  the  ground  that  the  Court 
of  Btankruptcy  had  jurisdiction  to  give  the  plaintiff 
the  relief  which  he  sought,  (g)  and  this  jurisdiction 
reaches  not  only  the  immediate  parties  to  the  pro- 
ceeding before  the  court,  or  persons  who  inter- 
vene and  submit  to  the  jurisdiction,  but  third 
persons  who  happen  to  interfere  with  its  proceed- 


(/)  See  corresponding  provision  in  Bankruptcy  Act  (Ireland),  1872, 
35  &  36  Vic,  c.  58,  s.  (J. 

(g)  Hutchinson  v.  Baslam,  25  W.  E.,  54  V.C.B. 

C 


2C  ONE  COUKT  OF  JUDICATURE. 

jntrodnc-   jjj~g  ^^  ^q  obstruct  its  proccss.  (Ji)     On  the  other 

tory  J  leic.         °  i  \    / 

—  hand,  the  Court  of  Bankruptcy  itself  -wsls  not  sub- 
ject to  be  restrained  or  interfered  with  in  the  exe- 
cution of  its  powers,  save  by  the  action  of  an  appeal 
to  the  Chancery  Appeal  Court  and  the  House  of 
Lords,  (i). 
One  Court  (13.)  The  Judicature  Act  carries  this  modem 
jurisdiction  policy  of  Parliament  to  its  ultimate  possible  de- 
velopment, in  the  union  and  consolidation  of  every 
court  of  the  higher  order  into  one  comprehensive 
Court  of  Judicature,  armed  with  the  powers  apper- 
taining to  each  and  ever}^  of  its  constituent  mem- 
bers, and  of  which  every  division  and  every  single 
judge  is  invested  with  every  part  of  the  contentious 
jurisdiction  formerly  belonging  to  all  the  former 
courts  ;  whilst  all,  moving  upon  identical  or  parallel 
lines  of  procedure,  are  controlled  and  regulated  by 
one  and  the  same  Court  of  Intermediate  Appeal, 
and  the  one  Court  of  Final  Appeal  in  the  House  of 
Lords.  Whatever  may  be  the  merits  or  defects  of 
the  plan,  as  regards  the  intrinsic  value  and  perfec- 
tion of  the  judicial  work  to  be  produced,  in  quantity 
or  quality,  or  in  cost  of  time  or  money,  it  is  at  all 
events  a  bold  step  towards  terminating  the  long- 
fought  battle  of  the/b/'M77i,  the  controversy  between 
the  several  courts  of  the  Queen,  the  uncertainty  as 
to  the  tribunal  to  be  appealed  to,  and  the  occasional 
insufficiency  of  its  powers  to  do  full  justice  in  the 
matter  of  the  contention,  and,  above  all,  in  the 
removal  of  the  wall  of  partition  which  has  for  500 

(//.)  See  Ex  parte  Domville  a  Bankrupt,  Ir.  Rep.,  9  Eq.  456,  Ch,  Ap.  Ct. 
and  Ex  parte  Leonard,  24  W.  R.  l.S2,  A.  C.  However  it  has  been  held 
that  the  Court  of  Bankruptcy  cannot  properly  restrain  a  mortgagee  from 
foreclosing  the  equity  of  redemption  against  the  trustees,  though  they 
allege  the  mortgage  was  a  pretence  to  defeat  creditors.  See  Ex  parte 
Pannell,  25  W.  R.,  188;  21  Sol.  Jour.  748,  A.  0. 

(?)  See  Bankruptcy  Act  (Ireland),  1872,  s.  66. 


ONE  COURT  OF  JUDICATURE.  27 

years,  more  or  less,  separated  the  administration  of  /"f''^^^'"; 
equity  from  that  of  law.  — 

The  Supreme  Court  of  Judicature,  uniting  and 
consolidating  the  several  courts  already  enumerated, 
is  to  consist  of  two  permanent  divisions  "  Her  Ma- 
jesty's High  Court  of  Justice  in  Ireland,"  and  "  Her 
Majesty's  Court  of  Appeal  in  Ireland."(y)  Each  of 
these  courts,  the  primary  and  the  appellate,  is  con- 
stituted "  a  Superior  Court  of  Record."  (k)  The 
Hicfh  Court  of  Justice  has  transferred  to  and  vested 
in  it,  all  the  jurisdiction  which  at  the  commence- 
ment of  the  Act  was  vested  in  or  capable  of  being- 
exercised  by  all  or  any  of  the  courts  enumerated  as 
being  united  and  consolidated  with  it.  And  its 
duties  and  those  of  the  Court  of  Appeal  are 
summarized  as  follows  : — "  The  High  Court  of  Jus- 
tice and  the  Court  of  Appeal  respectively,  in  the 
exercise  of  the  jurisdiction  vested  in  them  by  this 
Act,  in  every  cause  or  matter  depending  before  them 
respectively,  shall  have  power  to  grant,  and  shall 
grant,  either  absolutely  or  on  such  reasonable 
terms  and  conditions  as  to  them  shall  seem  just,  all 
such  remedies  whatsoever  as  any  of  the  parties 
thereto  may  appear  to  be  entitled  to,  in  respect  of 
any  and  every  legal  or  equitable  claim  properly 
brought  fortuard  by  them,  respectively,  in  such  cause 
or  matter,  so  that  as  far  as  possible  all  matters  so 
in  controversy  between  the  said  parties,  respectiveh', 
may  be  completely  and  finally  determined,  and  all 
multiplicity  of  legal  proceedings  concerning  any  of 
such  matters  avoided."  (l) 

Henceforth,  according  to  the  intention  of  the  Act, 
and  subject  only  to  the  fallibility  that  appertains  to 
all  human  institutions,  it  is  expected  that  a  suitor 
having  a  well-founded  claim  shall  not  be  disap- 

0')  J.  A.,  1S77,  s.  5.  ao  J.  A.,  1877,  ss.  21  aud  23. 

(0  J.  A.,  1S77,  8.27,  subs.  (7). 

c2 


28  ONE  COURT  OF  JUDICATURE. 

tnr^i^yiei-  pointed  of  the  relief  or  protection  to  which  he  is 
—  entitled,  provided  his  claim  be  brought  forward 
within  proper  time  and  with  reasonable  certainty. 
The  formidable  question  of  the  foruvi  is  reduced  to 
the  more  easily  solved  question  of  the  division. 
Every  form  of  action  is  within  the  competency  of 
every  division,  and  every  judge  of  the  court.  The 
distribution  of  business  and  the  assignment  of  cer- 
tain classes  of  actions  to  particular  branches  of  the 
court,  will  be  matter  of  internal  arrangement  and 
convenience,  for  the  more  effective  discharge  and 
ready  despatch  of  public  business,  but  opens  no 
question  of  jurisdiction  debarring  any  suitor  from 
his  proper  rights  or  remedies.  In  what  was  for- 
merly the  exclusive  prerogative  of  the  Queen,  that 
she  could  sue  in  whatever  court  she  pleased,  ex  gr. 
seek  a  money  demand  by  information  in  the  Court 
of  Chancery  (r/i),  the  substantial  advantage  of  this 
]-oyal  prerogative  has  been  placed  at  the  service  of 
every  subject  of  the  realm. 

The  reform  in  our  judicial  system  (as  it  has  been 
neatly  expressed  by  a  learned  Member  of  Parlia- 
ment) (n),  is  such  that  now  for  the  first  time  in  its 
history,  the  suitor  might  feel  confident  that  he  would 
not  be  turned  out  of  the  Temple  of  Justice  because 
he  got  in  by  the  wrong  door. 

In  case  he  mistakes  the  division  to  which  he 
should  have  assigned  his  action,  it  is  merely  matter 
of  transfer  ;  if  he  mistakes  the  form  of  his  claim,  it 
is  matter  of  amendment  according  to  the  discretion 
of  the  Court.  If  he  commences  his  action  in  due 
time,  but  in  a  wrouof  division,  the  court  is  bound, 
nevertheless,  to  entertain  it,  transferring  it,  if  needs 
1)6,  to  a  more  convenient  branch  of  the  same  court. 


(m)  See  a  recent  case,  Attorney-General  v.  Ray,  L.  II.  9  Cli.  404. 
(«;  Mr.  Osborne  Morgar,  II.  C,  23  Feb.,  2877. 


ONE  COURT  OF  JUDICATURE.  2!) 

which  ao^ain  is  bound  to  take  it  up  from  the  staoje    rmrodac- 
it  had  reached,  and  to  continue  it  without  break  or      '■ — 
interruption  to  the  end,  and  without  the  suit  en- 
countering: the  bar  of  the  Statute  of  Limitations 
which  might  have  presented  itself  to  a  fresh  action 
instituted  in  another  court,  (o) 

The  question  decided  by  the  House  of  Lords  in 
Allen  V.  Macpherson  (p),  viz.,  that  the  Court  of 
Chancery  had  no  jurisdiction  to  deal  with  a  ques- 
tion of  fraud  in  obtaining  a  will  of  personal  estate, 
and  could  not,  after  a  particular  will  had  been  ad- 
mitted to  probate,  declare  a  legatee  to  be  a  mere 
trustee  for  another  person  of  the  property  be- 
queathed, would,  if  raised  now,  present  itself  in  a 
wholly  different  aspect;  and  the  judge  of  the  Chan- 
cery Division,  having  theoretically,  at  least,  full 
power  to  recall  or  set  aside  probate,  might,  if  a  case 
warranting  such  a  step  had  been  established  or 
admitted,  act  on  the  assumption  that  it  was  re- 
called (q),  or  in  a  case  less  clearly  proved,  order  the 
claim  to  be  amended  as  one  specifically  asking  for 
relief  of  that  nature,  and  transfer  the  action  to  the 
Probate  Division.  Of  course  it  is  not  to  be  taken 
for  granted  that  because  every  Judge  of  the  High 
Court  possesses  this  almost  universal  jurisdiction, 
that  he  is  likely  to  exercise  it  lightly,  or  in  all 
cases  in  which  he  is  asked.  For  example,  a  Chan- 
cery Judge  in  a  suit  seeking  for  partition  and  to 
establish  a  will  under  which  the  plaintiff  claims 
title,  has  in  the  abstract,  full  jurisdiction  to  direct 


(o)  See  Fievet  v.  Manby,  24  W.  R.,  699,  V.  C.  M. 

(j9)l  H.  L.  C.  191,  followed  latelj- in  Meluish  r.  Milton,  W.  N.,  1876, 
158  ;  2  Sol.  Jour.  548,  A.  C. 

(j)  See  Mostj-n  v.  WestMostyn  Coal  Company,  L.  R.,  1  C.  P.  D.,  145, 
24  W.  R.  401,  where  a  Common  Law  Division  acted  on  the  assump- 
tion that  a  deed  admitted  to  be  erroneous,  had  been  rectified,  and  gave 
effect  to  a  defence  or  counter-action  relying  on  the  error. 


30  ONE  COURT  OF  JUDICATURE. 

infrodnc-    probate  of  the  -will,  but  it  does  not  follow,  that  it 

tory  1  WW.    '^  ^  ' 

—  would  be  a  sound  exercise  of  his  discretion,  or 
otherwise  than  highly  inconvenient  if  he  were  to 
do  so,  there  being  a  division  specially  fitted  for 
dealing  with  such  matters  (r),  but  he  can  stay  the 
action  pending  an  application  for  probate  (s). 

Again  by  reason  of  the  unification  of  the  several 
Courts,  it  will  be  competent  for  the  suitor  to  com- 
bine, in  one  and  the  same  action,  claims  for  relief 
which,  though  arising  under  one  and  the  same 
instrument,  should  heretofore  have  formed  the 
subject  of  several  actions,  and  in  different  Courts  ; 
as  for  example,  an  ejectment  to  assert  title  to  real 
estate  devised,  and  an  administration  suit  as  to  the 
real  and  personal  estate  bequeathed  by  the  same 
testator  and  in  the  same  will  (t),  so  a  claim  for 
payment  of  a  mortgage  debt  may  now  be  com- 
bined with  a  claim  for  the  possession  of  the  mort- 
gaged estate  (u).  On  the  other  hand  as  regards 
parties  brought  into  Court  as  defendants,  whether 
in  the  Chancery  or  in  a  Common  Law  Division, 
what  would  be  a  good  defence  in  the  former 
division  will  be  an  equally  good  defence  iu  the 
latter.  Equitable  defences  which  were  entertained 
in  actions  at  law,  with  great  reserve  and  serious 
limitations,  will  now  be  as  free  and  as  efiectual  in  a 
common  law  action  as  in  one  in  the  Chancery 
Division.  So  from  the  universal  powers  confeiTed 
on  each  division  and  judge  of  the  Court,  whatever 
turn  the  cause  may  happen  to  take,  whatever  inci- 

(r)  See  Humphreys  v.  Edwards,  L.  R.,  4  Ch.  D.  112,  M.  R.,  a  case 
involving  a  question  of  salvage  which  the  Master  of  the  Rolls  considered 
ought  to  be  transferred  to  the  Admiralty  Court. 

(s)See  Finney  v.  Hunt,  W.  N.,  1877,  150,  Sir  Geo.  Jessel,  M.  R., 
where  this  was  done. 

(0  See  Whetstone  v.  Dewis,  L.  R.,  1  Ch.  D.  99  ;  W.  N.,  1875,  22G  ; 
24  W.  R.  93,  v.  C.  H. 

(w)See  Ilanbury  v.  Noone,  W.  X.,  1875,  260;  20  Sol.  Jour.  IGl. 


ONE  COURT  OF  JUDICATURE.  61 

dental  riofhts  or  obligations  may  arise,  the  division  in'roiinr- 
or  judge  before  whom  the  action  is  pending,  will  — 
be  able  to  deal  with  it,  and  to  follow  and  control 
it.  For  example,  in  an  action  for  probate,  the 
judge  of  the  Probate  Division  can  grant  an  in- 
junction to  secure  the  property  of  the  intestate 
pendente  lite  (v)  ;  or  in  a  suit  to  recall  probate  or 
administration,  he  may  grant  an  injunction  to 
restrain  the  executor  or  administrator  from  dealing 
with  the  assets  {w).  Even  in  a  divorce  suit,  the 
judge  in  England  may  by  injunction  restrain  the 
husband  from  selling  or  incumbering  the  property 
settled  on  his  wife  and  children  by  a  post-nuptial 
settlement  {x).  In  a  winding-up  matter  the  Master 
of  the  Rolls  or  a  Vice-Chancellor  can  direct  the 
issue  of  a  writ  of  niandaifYius  to  compel  the 
directors  of  the  company  to  convene  a  special 
meeting,  {y) 

Again,  although  each  particular  action  must  be 
assigned  to  some  particular  division  as  its  more 
proper  business,  it  is,  nevertheless,  competent  for 
any  judge  of  the  High  Court  to  deal  with  any 
matter  arising  incidentally  in  the  action,  as  though 
he  were  a  judge  of  the  division  to  which  it  stands 
assigned,  a  power  which  doubtless  will  not  be 
exercised  without  due  considerations  of  expediency 
and  convenience.  Thus  a  judge  at  chambers  may 
order  an  action  assigned  to  one  division  to  be 
transferred  to  another,  although  not  a  member  of 
either  division  himself  [z).  So  a  judge  of  the 
Chancery   Division    may    make    a   stop    order   on 

(«)  See  Melhuish  v.  Milton,  24  W.  R.  679;  20  Sol.  J.  562,  Prob.  D. 
(yj)  See  Nicholson  v.  Dracachis,  2i  W.  R.  4G1,  Prob.  D. 
(x)  See  Watts  v.  Watts,  20  Sol.  Jour.  412. 

(y)  See  Paris  Skating  Rink  Company,  W.  N.,  1877,  168  ;  25  W.  l\. 
767,  V.  C.  H. 

{z)  See  Hillman  v.  Mayhew,  L.  R.,  1  Ex.  D.  132. 


32  ONE  COURT  OF  JUDICATURE. 

introduc-   funds  in  Court  upon  a  iuda;ment  recovered  in  a 

torij  Vim:  '■  t  t      • 

Common    Law  Division,  without  the    prehmmary 

chargino:  order  of  the  latter  Court,  which  was 
formerly  necessary  (a),  and,  indeed,  the  latter 
division  might  liave  made  the  stop  order  on  funds 
in  the  Chancery  Division,  if  it  had  been  deemed 
convenient  or  prudent. 

On  the  other  hand  the  several  divisions  of  the 
High  Court  of  Justice,  although  distinct  and  sepa- 
rate courts  for  most  purposes,  being  all  members 
nevertheless  of  one  and  the  same  court,  it  would 
seem  to  follow  that  when  an  application  for  a  writ 
of  prohibition  has  been  made  to  one  division  and 
refused  by  it,  it  cannot  be  renewed  in  another 
division,  but  the  decision  of  the  first  division  may 
be  reviewed  by  the  Court  of  Appeal  (h). 

Again,  the  anomaly  of  one  court  of  justice  inter- 
fering with  the  action  of  another  court  of  co- 
ordinate authority  is  put  an  end  to,  at  least  so  for 
as  the  several  branches  of  the  High  Court  inter  se 
are  concerned.  It  is  almost  a  logical  sequence 
from  the  unilication  of  the  courts,  that  as  a  court 
cannot  restrain  itself,  "  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  the  matter  of  equity 
on  which  an  injunction  against  the  prosecution  of 
the  cause  or  proceeding  might  be  obtained  may  be 
relied  on  by  way  of  defence  thereto  "  (c). 

Lastly,  although  as  a  matter  of  fact,  the  in- 
stances in  which  the  several  jurisdictions  have, 
Avithin  recent  years,  actually  clashed,  has  been 
inconsiderable  compared  with  the  number  of  cases 

(a)  Hopewell  v.  Barnes,  W.  X.,  187G,  28;  24  W.  R.  G29,  V.  C.  M. 
(5)  See  Ilawes  v.  Paveley,  L.  R.,  1  0.  P.  D.,  418  ;  24  W.  R.,  895,  20 
Sol.  Jour.,  640  A.  C. 

(c)  J.  A.,  1877,  s.  27,  Subs.  5;  J.  A.,  1873,  s.  23. 


FUSION  OF  LAW  AXD  EQUITY.  8,S 

in  which  they  have  worked  smoothly,  each  in  its    Tntroduc- 

•^  _  "^  tory  View. 

proper  groove,  still  there  can  be  no  doubt  of  the      

value  of  an  enactment  which  sets  at  rest  the 
occasional  rivalry  of  two  systems,  and  gives  to 
each,  some  of  the  remedies  which  it  has  either 
wanted  or  had  been  unwilling  to  adopt. 

(1 4.)  But  although  the  Judicature  Act  professes  Fusion  of 

^        ^  ^  .....  'aw  and 

to  put  an  end  to  the  conflict  of  jurisdictions,  and  equity, 
the  clashing  of  courts,  which  administered  opposite 
systems  of  law  and  equity,  and  to  introduce  some- 
thing like  harmony  and  symmetry  into  English  law, 
it  does  not  pretend  to  accomplish  anything  answering 
to  the  popular  idea  of  a  mysterious  fusion  of  law 
and  equity.  Law  and  equity,  as  we  have  already 
noticed,  although  perhaps  not  essentially  distinct 
and  separate  systems,  are  different  stages  of  the  same 
system.  Equity,  might  from  time  to  time  have  been 
annexed  to  or  incorporated  with  the  body  of  the 
law,  or  law  mio-ht  be  advanced  to  the  stage  at  which 
its  more  progressive  sister  had  arrived,  and  they 
mic^ht  abide  tofjether  for  a  time,  but  the  continuous 
growth  of  equity  is  "  a  constant  ever-recurring 
phenomenon,"  and  if  its  principles  were  embodied  in 
a  code  of  law,  howsoever  complete  and  perfect  in 
itself  it  might  be,  equity  must  in  time  outgrow  the 
strict  limits  of  its  abode,  and  tend  towards  a  fresh 
departure. 

In  the  language  of  Sir  George  Jessel,  already 
quoted,  courts,  meaning  Comets  of  Equity,  must  take 
into  account  the  needs  of  the  time,  as  they  arise,  and 
accommodate  themselves  thereto. 

(15.)  The  idea  of  a  general  fusion  of  law  and  Concurrent 
equity  is  a  delusion,  {d)  though  there  are  a  few  cases  tion  onaw 
in  which  incidentally,  in  the  exercise  of  one  juris-  ^°  '-')"'f>- 
diction,  the  exercise  of  another  might  be  desirable, 


(d)  Lord  Brougham. 

c  3 


'i4  CONCURRENT  ADMINISTRATION. 

/ntrodiic-  r^j^(2  the  Judicature  Act  instead  of  aimiuej  at  an  im- 
—  possible  fusion  of  law  and  equity,  prescribes  cer- 
tain rules  (e)  for  what  it  designates,  the  concurrent 
administration  of  law  and  equity.  These  rules  are 
obviously  applicable,  not  to  all  actions — as  the 
marginal  note,  "  Law  and  equity  to  be  concurrently 
administered,"  would  seem  to  impl}^ — but  are  from 
the  necessity  of  the  case,  limited  to  occasions,  com- 
paratively few  in  number,  in  which  the  combined 
or  conflicting  action  of  law  and  equity  might  have 
been  hitherto  brought  to  bear  on  the  same  subject- 
matter.  Where  the  matter  before  the  court  is  one 
purely  of  common  law  or  purely  of  equity  law  the 
preceding  section  (26  of  J.  A.,  1877)  provides  that 
the  jurisdiction  shall  be  exercised  as  it  might  have 
been  exercised  by  the  court  from  which  the  juris- 
diction has  been  transferred,  and  in  such  cases  the 
joint  administration  of  law  and  equity  can  have  no 
place.  Its  application  is  in  those  mixed  cases  in 
which  the  relief  afforded  by  one  court  was  assisted 
or  supplemented,  modified  or  controlled  by  the 
action  of  another,  ex.  gr.  of  equity,  or  vice  versa, 
where  the  action  of  a  Court  of  Equity  was  stayed 
till  some  legal  rioht  was  ascertained  at  law,  or  where 
in  the  progress  of  a  legal  claim,  equitable  estates, 
rights,  or  duties  incidentally  appeared, 
consoiida-  (1^0  It  nmst  be  obvious,  therefore,  that  the  con- 
jlfdicatui-.'s  solidation  effected  by  the  Judicature  Act,  is  a  con- 
''"^^^  J"""'""  solidation  not  of  iurisdictions,  but  of  iudicatures  ; 

tlictioiis.  ''  . 

and  that  a  fusion  of  judicatures  is  a  totally  different 
thing  from  a  fusion  of  jurisdictions.  Jurisdictions 
relating  to  different  subjects,  whether  they  be  of 
law  or  equity,  of  probate  or  of  admiralty  matters,  are 
so  far  distinct  in  their  nature  that  they  caniiot  be 
fused ;    and    though    they   may    be    administered 

(e)  J.  A.,  1877,  8.  27;  J.  A.,  1873,  s.  2.1. 


CONSOLIDATION  OF  JUDICATURES. 

together  in  the  same  court  and  by  the  same  judges, 
yet  the  administration  must  be  for  the  most  part 
distinct  and  separate,  and  can  only  be  joined  on  very 
few  occasions  in  the  same  proceeding  between  the 
same  parties  and  for  the  same  object.  There  is  an 
association  rather  than  a  fusion  or  blending  of 
jurisdictions.  Many  very  different  departments  are 
vested  in  the  same  coui-t,and  every  individual  judge 
is  competent  to  exercise  every  part  of  it,  whether  it 
be  civil  or  criminal,  legal  or  equitable  ;  but  it  is  not, 
therefore,  intended  that  the  special  jurisdiction,  say, 
of  the  Probate  or  Landed  Estates  Court  is  to  be  con- 
fused with  the  ordinary  administration  of  law  and 
equity.  Each  department  of  jurisdiction  remains 
as  distinct  and  separate  as  before,  and  in  its  com- 
plete integrity  and  full  force ;  and  although  its 
administration  is  committed  potentially  to  every 
member  of  the  High  Court,  yet  if  any  division  or 
judge  other  than  the  one  to  whom  a  particular  class 
of  business  is,  for  convenience'  sake,  assigned,  is 
called  upon  to  exercise  functions  outside  his  or  its 
usual  routine,  the  division  or  judge  is  required  to 
observe  the  same  principles  and  rules  which  would 
have  governed  the  special  court  in  like  matters 
heretofore  ;  and  as  regards  procedure,  is  required  to 
apply  it  "  as  nearly  as  may  be  in  the  same  manner 
as  the  same  might  have  been  exercised  by  the  re- 
spective courts  from  which  the  jurisdiction  shall  have 
been  transferred."  (/) 

Accordingly,  the  Judicature  Act,  whilst  it  brings 
several  kinds  of  jurisdiction  together  into  one  court, 
takes  special  care  to  keep  them  as  distinct  and 
separate  as  before,  and  to  secure  this,  and  to  prevent 
confusion  between  them,  provides  that  the  High 
Court  shall  sit  in  separate   divisions,  each  division 

(/)J.  A.,  1877,  s.  26. 


Tiitrodiir- 
iuri/  I  itii . 


36  SEPAEATE  ADMINISTRATION. 

jntroduc-  q^^  f.^^  j^g  possible  exercisinsf  a  separate  iurisdiction 

tory  View.  '^  . 

—      peculiarly  assigned  to  itself. 
Separate  (17.)  Indeed,  even  the  fusion  of  judicature  is  more 

tion  by  or  less  a  convenient  fiction,  and  the  combination  of 
( ivihion.  ggygjj  Qj.  eight  distinct  courts  into  one  coui-t,  though 
complete  in  theory  and  in  name,  has  but  very  little 
of  practical  reality  about  it.  The  one  Supreme 
Court  of  Judicature,  in  its  entirety,  can  scarcely  be 
said  to  have  any  existence  at  all.  As  a  Court  of 
Justice  it  has  none.  It  can  exercise  no  function,  nor 
can  it  assemble  in  bodily  shape  for  any  purpose, 
judicial  or  ministerial,  save  to  make  or  unmake  rules 
of  Court  for  carrying  the  Judicature  Act  into  effect, 
{g)  or  as  a  council  to  inquire  into,  consider,  and 
report  to  the  Chief  Secretary  of  the  Lord  Lieutenant 
what  amendments  or  alterations,  if  any,  it  may,  in 
the  judgment  of  the  judges  present,  be  expedient  to 
make  in  the  Judicature  Act  or  otherwise  in  the 
administration  of  justice,  {li)  or  as  a  court,  in  some 
inconceivable  manner  to  exercise  jurisdiction  over 
the  solicitors  of  the  Court  of  Judicature  (i) — a 
function,  by  the  way,  previously  delegated  to  the 
Lord  Chancellor,  (j) 

Again,  as  regards  the  first  member  of  the  Supreme 
Court — namely,  the  High  Court  of  Justice — it  does 
not  seem  that  its  judges  can  sit  as  a  single  court 
except  for  the  one  purpose — of  hearing  Crown  cases 
i-eserved — when  "  the  judges  of  the  High  Court  of 
Justice,  or  five  of  them,  &c,"  (Ic)  may  sit.  In  the 
Fiunconia  case  fourteen  judges  sat,  and  of  course 
all  might  have  sat.  Its  judges  may  also  assemble 
for  the  purpose  of  making  arrangements  respecting 
its  Divisional  Courts,  (l)  but  for  all  other  pur- 
poses, and  certainly  for  the  administration  of  justice 
in    civil    actions    or   matters,    the    High    Court   of 

(</)  See  J.  A.,  1877,  s.  01.  (//)  Sec  s.  70.  {I)  S.  78. 

0')  S.  73,  par.  (15).  (A)  J.  A.,  1877,  s.  50.  {!)  S.  46. 


EE-DISTEIBUTION  OF  BUSINESS.  'h 

Justice  has  no  existence  except  in  contemplation  of  /"<'w'"c- 

law.     It  cannot  sit  except  in  separate  divisions  or      

by  single  judges.  These  divisions,  as  expressed  by 
Sir  Alexander  Cockburn,  "  are  virtually  different 
courts  ;"  (m)  and  in  each  of  these  divisions,  corres- 
ponding both  in  name  and  in  nature  with  the 
former  distinctive  courts,  the  old  jurisdiction  is  for 
all  practical  purposes  and  subject  to  occasional 
transfers  exclusively  vested. 

The  word  "  Court "  throughout  the  Judicature 
Act  seems  to  mean  either  a  Divisional  Court  or  a 
Single  Judge,  and  even  in  section  27  (n)  of  our 
Act  the  expression,  "  The  High  Court  of  Justice," 
means  the  division  of  the  High  Court  in  which  the 
cause  is  pending,  (o) 

(18.)  The  High  Court  of  Justice  is  divided  into  Ee-distii- 
five  separate  divisions,  each  consisting  of  special  business, 
judges,  but  yet  not  so  as  to  prevent  any  judge  from 
sitting  whenever  required  in  any  divisional  court, 
or  for  any  judge  of  a  different  division  from  his 
own.  To  each  of  these  five  divisions  is  assigned 
the  special  cognizance  of  some  distinct  heads  of 
jurisdiction  with  which  the  presiding  judges  have 
been  already  familiar.  Thus  while  giving  to  every 
division,  power  to  administer  all  the  equities  that 
arise  in  the  course  of  their  ordinary  business,  as, 
for  example,  to  the  Common  Pleas  Division  when 
disposing  of  an  action  for  rent  claimed  to  be  due 
on  a  lease,  to  dispose  of  the  equitable  right  of  the 
defendant,  to  have  the  lease  cancelled  on  the  • 
ground  of  fraudulent  concealment  of  material 
facts ;  (p)  to  the  Chancery  Division,  are  assigned, 

(to)  Kingchurch  v.  The  People's  Gardens  Co.,  L.  R.,  1  C.  P.  D.,  45, 
24  W.  Il.,41. 

(/OJ.  A.,  1873,  s.  24. 

(o)  Kingchurch  v.  People's  Gardens  Co.,  tibi  ante. 

(p)See  Mostyn  v.  West  Mostyii  Coal  and  Iron  Company,  L.  E.  1  C. 
P.  D.,  145,  24  W.  E.  401. 


38  RE-DISTRIBUTION  OF  BUSINESS. 

Mroduc-   {^  addition  to  those  matters  in  which  by  statute 

lory  J  iew.  "^ 

—  tlie  Court  of  Chancery  and  the  Landed  Estates 
Court  had  exclusive  jurisdiction,  several  heads  of 
equitable  jurisdiction  which  were  the  peculiar 
heritage  of  the  Court  of  Chancery  in  former  times. 
All  these  are  now  more  distinctly  than  ever  allotted 
to  the  Chancery  judges  as  their  sole  and.  special 
business.  These  consist  of  the  administration  of 
assets  of  deceased  persons,  the  dissolution  of  part- 
nerships, or  taking  of  partnership  or  other  accounts, 
the  redemption  or  foreclosure  of  mortgages,  the 
raising  of  portions  or  other  charges  on  land,  the 
sale  and.  distribution  of  the  proceeds  of  property 
subject  to  any  lien  or  charge,  the  execution  of 
trusts,  charitable  or  private,  the  rectification  or 
setting  aside  or  cancellation  of  deeds  or  other 
written  instruments,  the  specific  performance  of 
contracts,  the  partition  and  sale  of  estates, 'and  the 
wardship  of  infants  and  the  care  of  their  estates,  (q) 
The  above  are  subjects  which  do  not  often  require 
the  ordeal  of  a  trial  by  j  ury,  and  can  generally  be 
dealt  with  more  satisfactorily  by  a  single  judge 
through  the  more  perfect  machinery  of  the  equity 
courts.  Many  subjects  of  the  former  equitable 
jurisdiction  in  Chancery  remain  unassigned,  but 
they  consist  chiefly  of  matters  in  which  the  right 
was  a  legal  one,  and  recourse  was  had  to  equity 
only  for  some  assistance  such  as  discovery,  the  per- 
petuation of  testimony,  the  appointment  of  re- 
ceivers, the  restraining  infringement  of  certain 
legal  rights,  such  as  copyrights,  patents,  trade- 
marks, ancient  lights  and  watercourses,  the  pre- 
servation of  timber,  fisheries,  mines,  and  the  abate- 
ment of  nuisances.  To  these  may  be  added,  bills 
of  peace,  and  for  declaration  of  rights. 

(2)  J.  A.,  1877,  3.  30 ;  J.  A.,  1873,  s.  3i. 


RE-DISTRIBUTION  OF  BUSINESS.  39 

To  tlie  Queen's  Bench  Division  are  assisjned  all    Mrodyr. 

^  ...  ^'^^y  I  tew. 

causes  and  matters,  civil  or  criminal,  which  would  — 
have  been  within  the  exclusive  cognizance  of  the 
Court  of  Queen's  Bench  in  the  exercise  of  its 
original  j  urisdiction.  This  will  include  all  business 
in  the  name  of  the  Crown,  or  of  a  public  natui'e, 
not  being  fiscal,  criminal  informations,  quo  war- 
ranto, and  review  of  the  decisions  of  inferior  courts 
of  criminal  jurisdiction.  As  regards  civil  actions 
if  the  language  of  the  statute  be  taken  strictly, 
it  would  assign  to  the  Queen's  Bench  Division 
actions  vi  et  ariwis,  and  none  other,  for  such  alone 
were  "  within  its  exclusive  cognizance  in  the 
exercise  of  its  original  jurisdiction."  The  term 
"  original "  may  probably  have  been  used  in  contra- 
distinction to  the  statutable  jurisdiction  of  the 
Court  of  Queen's  Bench. 

To  the  Common  Pleas  Division,  in  like  manner, 
are  assigned  all  causes  and  matters  which  would 
have  been  within  the  exclusive  cognizance  of  the 
Court  of  Common  Pleas,  if  the  Act  had  net  passed. 
This  would  formerly  have  embraced  real  actions, 
such  as  dower  (now  abolished  as  a  real  action),  and 
quare  hnpedit,  which  has  become  obsolete  in 
Ireland.  It  stiU  may  include  the  special  juris- 
diction under  the  Parliamentary  Elections  Act 
(1868),  31  &  32  Vic,  c.  125,  and  under  the  Local 
Government  Act,  34  &  35  Vic,  c.  109.  (r) 

To  the  Exchequer  Division,  are  assigned  all 
causes  and  matters  which  would  have  been  within 
the  exclusive  cognizance  of  the  Court  of  Exchequer, 
either  as  a  Court  of  Revenue  or  as  a  Common  Law 
Court,  if  the  Act  had  not  passed ;  this  would  pro- 
bably include  a  class  of  actions  which  by  statute 

(r)  As  to  appointment  of  Commissioners  for  taking  Acknowledgments 
of  Married  Women  under  4  &  5  Wm.  IV.,  c.  92,  s.  72,  see  new  J.  A., 

1877,  s.  74. 


40  CHOICE  OF  DIVISION. 

iorrvieu-    "^^^re  required  to  be  brought  in  the  Court  of  Exche- 
—      quer,  and  by  its  leave,  (s) 

So  in  like  manner  to  the  Probate  and  Matri- 
monial Division  are  assigned  all  causes  and  matters 
which  would  hitherto  have  been  peculiar  to  these 
branches  of  the  Court. 

It  is  to  be  observed  that  the  ordinary  common 
law  actions  are  not  expressly  assigned  by  the 
statute,  to  any  particular  division,  and  not  even  to 
the  three  Common  Law  divisions  in  common.  In 
England  there  is  nothing  to  prevent  such  actions 
being  brought  in  the  Chancery  Division,  but,  doubt- 
less, the  last  paragraph  of  section  So  of  our  Act  was 
drawn  with  the  idea  that  the  ordinary  common  law 
actions  were  to  be  distributed  between  the  Queen's 
Bench,  Common  Pleas,  and  Exchequer  Divisions 
under  the  name  of  "  the  general  business,"  which 
was  to  be  divided  in  some  equitable  manner,  having 
regard  to  the  special  jurisdiction  vested  in  each  of 
these  divisions  respectively,  and  so  as  to  apportion 
the  business  fiiirly  between  them  ;  whereas  the 
rotation  of  writs  in  use  formerly,  supposed  to  divide 
the  common  law  actions  between  the  three  Courts 
of  Law  equally,  gave,  perhaps,  an  undue  share  of 
business  to  the  Court  of  Queen's  Bench,  having 
regard  to  its  prerogative  and  criminal  jurisdiction. 
Option  for  (19.)  Subject  to  the  assignment  by  statute  or  by 
ciioose  his  rulcs  of  Court  of  particular  actions  or  business  to 
power  of  special  divisions,  and  to  the  power  of  transfer  vested 
trauster.  ^^  ^-^^^  court,  the  suitor  may  exercise  an  option  and 
choose  in  what  division  he  may  think  fit  to  sue,  by 
marking  the  writ  or  document  by  which  the  pro- 
ceeding is  commenced,  with  the  name  of  the  division 
which  he  prefers,  giving  due  notice  thereof  to  the 
proper  officer  of  the  court.     If  the  suitor  happen 

(«)  See  Caldwell  v.  Board  of  Works,  1  Ir.  Jur.,  N.  S.,  lOG  Ex. 


ABOLITION  OF  TERMS.  4-1 

to  assign  his  cause  to  a  division  to  which  it  ought  ^^"/^"^--^t., 
not  to  be  assigned,  the  Court  may  direct  it  to  be  — 
transferred  to  the  proper  division,  or  may  retain  it 
where  it  is,  although  it  be  not  the  proper  division ; 
and  everything  done  in  the  assigned  division  will  be 
as  valid  and  effectual  as  if  it  had  been  done  in  the 
proper  division,  (t)  So  in  like  manner  the  cause 
may  be  transferred  at  any  stage  from  one  division 
to  another,  or  it  may  be  retained,  as  the  Court  may 
deem  expedient.  To  reconcile  these  respective 
rights  of  choice  on  the  part  of  the  suitor,  and  of 
transfer  on  the  part  of  the  Court,  it  seems  obviously 
expedient  and  convenient  that  where  common  law 
rights  are  exclusively  concerned,  the  litigation  should 
be  committed  to  the  cognizance  of  the  common  law 
divisions,  whose  judges  are  more  familiar  with  such 
questions  than  the  equity  judges  presumably  are, 
and  especially  where  the  verdict  of  a  jury  may  be 
called  into  requisition.  On  the  other  hand,  where 
the  subject  of  the  action  is  one  dealing  with  a 
subject  of  equitable  cognizance  and  administration 
— as,  for  example,  where  the  relief  prayed  by  the 
writ  was  to  charge  the  separate  estate  of  a  married 
woman — the  cause  would  probably  be  transferred 
from  the  Common  Law  to  the  Chancery  division,  (u) 

(20.)  Terms  are  abolished,  and  the  "ugly"  word  Terms 
"  sittings "  usurps  the  place  of  a  venerable  and 
"  classical "  expression.  The  legal  year  of  the 
future  is  to  be  continuous,  with  the  exception  of 
the  Long  Vacation  and  the  Short  Vacations  usually 
given  at  Christmas,  Easter,  and  Whitsuntide,  which 
the  Lord  Lieutenant  and  Privy  Council  are  autho- 
rized, on  the  recommendation  of  the  judges,  to  fix.  (v) 

(t)  J.  A.,  1877,  ss.  37,  38. 

(m)  See  Anon.,  W.  K,  1876,  22  ;  20  Sol.  J.,  2i2,  Lindley,  J.,  where 
this  was  done. 

(f)  J.  A.,  1873,  s.  26;  J.  A.,  1877,  s.  29. 


42  ABOLITION  OF  TERMS. 

lutroduc-       Complaints  are  still  beinoj  made  in  England,  at 

tory  ytew.  ^  o  o  ' 

—  what  is  called  the  preposterous  length  of  the  Long 
Vacation — the  two  and  a  half  months  of  suspension 
of  legal  business,  the  enforced  idleness,  and  con- 
sequent delay  of  justice.  But  it  would  be  difficult, 
if  not  impossible,  to  do  without  it.  It  might, 
perhaps,  be  easy  enough  to  arrange  relays  of  judges 
and  officers,  so  that  the  Courts  would  be  in  session 
all  the  year  round,  as  there  are  already,  in  fact, 
vacation  judges  to  dispose  of  work  which  will  not 
brook  delay.  But  the  difficulty  of  maintaining 
continuous  sittings  and  perpetual  litigation  through- 
out the  year  lies  in  this,  that  neither  barristers  nor 
solicitors  can  be  found  to  endure  continuously,  the 
strain  and  toil  inseparable  from  the  conduct  and 
prosecution  of  legal  business ;  whilst,  on  the  other 
hand,  legal  business  is  not,  in  the  main,  of  such 
immediate  and  vital  urgency  that  it  cannot  be  post- 
poned for  a  season,  but  must  be  dealt  with  and 
disposed  of  as  it  arises,  like  matters  of  health, 
religion,  locomotion,  or  correspondence.  Even  each 
one  of  these  in  their  several  degree  must  have  a 
pause.  Th3  doctor  and  the  clergyman  will  take  his 
holiday,  and  so  railway  and  post  office  officials  must 
sometimes  intermit,  and  so  must  also  the  leading 
members  of  both  branches  of  the  legal  profession. 

It  is  highly  probable  that  there  would  be  no  lack 
of  barristers  or  solicitors,  able  and  willing  to  conduct 
the  work  of  litigation  during  the  months  of  Sep- 
tember and  October,  whilst  the  great  practitioners 
are  taking  their  holidays,  on  the  same  terms  and 
conditions  as  substitutes  are  provided  in  other  pro- 
fessions ;  but,  we  believe,  that  the  great  body  of  the 
public — the  suitors — would,  except  in  cases  of  special 
emergency,  be  little  satisfied  to  transfer  their 
business,  perhaps  in  medio,  from  the  skilled  and 
trusted  advocate  and  solicitor  of  their  selection,  to 


SINGLE  COURT  OF  APPEAL.  43 

a  provisional  substitute — a  stranger.  So  long  as  ^^".f^^^; 
suitors  will  rush  after  a  few  distinguished  practi-  — 
tioners,  and  have  none  other,  the  conduct  of  the 
business  of  the  Courts  must  be  more  or  less  regu- 
lated with  reference  to  the  powers  of  endurance  of 
a  strictly  limited  class  ;  and  even  in  the  interest  of 
the  suitors  themselves,  there  must  be  occasional 
intervals  of  time  between  different  stages  of  the 
legal  process,  sufficient  to  allow  reasonable  oppor- 
tunity to  the  parties  for  the  more  complete  pre- 
paration of  their  cases,  (^y) 

(21.)  The    second    permanent    division    of   the  single 

oi^  n      T      T  ■    L  "TT        Court  of 

Supreme  Court  of  Judicature  consists  oi  "  Her  intemie- 
Majesty's  Court  of  Appeal  in  Ireland."  It  is  con-  .^ppeai. 
stituted  a  Superior  Court  of  Record,  having  the 
appellate  jurisdiction  and  powers  of  the  Lord 
Chancellor  and  of  the  Court  of  Appeal  in  Chancery, 
of  the  Court  of  Exchequer  Chamber,  of  the  Court 
for  Land  Cases  Reserved,  and  a  newly  created  inter- 
mediate jurisdiction  by  way  of  writ  of  error  in 
criminal  cases,  on  appeal  from  the  Queen's  Bench 
Division,  (x)  Its  supervision  is  thus  extended,  not 
alone  over  the  departments  of  law  and  equity. 
Probate  and  Matrimonial,  Admiralty,  and  Bank- 
ruptcy matters,  but  also  over  land  causes,  criminal 
causes,  and  political  causes  affecting  the  right  to 
vote  in  Parliamentary  elections. 

The  sphere  of  appellate  jurisdiction  has  also  been 
considerably  enlarged  by  extending  it  to  interlocu- 
tory as  well  as  to  final  orders,  to  orders  affecting 
matters  of  practice  or  procedure,  as  well  as  orders 
deciding  on  the  facts  and  merits  of  the  case.  For 
the  first  time,  and  contrary  to  the  analogy  of  the 
English  Judicature  Acts,  the  intermediate  Court  of 

(u;)  See   articles    in    the   Solicitors'  Journal   for  1877,  from  which 
much  of  the  above  has  been  taken. 
{x)  J.  A.  1873,  8.  23. 


44  FINAL  APPEAL. 

hitrodyc-  Appeal  in  Ireland  has  been  brought  into  privity 
—  with  cases  involving  questions  affecting  the  delicate 
relations  of  Landlord  and  Tenant,  and  the  political 
franchise  of  Parliamentary  voters  ;  and  highest  and 
most  serious  of  all,  affecting  the  life  and  liberty  of 
the  subject  in  criminal  matters:  a  programme  of 
business  which  will  give  ample  occupation  to  its 
Judges,  and  which,  it  is  to  be  hoped,  may  not  over- 
wlielm  the  Court  that  must  practically  be,  in  the 
great  majority  of  cases,  the  only  Court  of  Appeal  for 
Ireland. 
Final  i^^-)  The  final   appeal  from  all  decisions,  judg- 

House  of  ments,  decrees,  and  orders  of  the  Court  of  Appeal,  is 
Lords.  ^Q  ^l^g  House  of  Lords,  in  the  like  cases  and  under 
the  like  conditions  under  which  decisions,  judg- 
ments, decrees,  or  orders  of  the  Court  of  Appeal  in 
Cliancery,  or  of  the  Court  of  Exchequer  Chamber, 
would  have  been  subject  to  appeal  to  the  House  of 
Lords,  or  to  the  Queen  in  Council,  (y)  if  the  Judica- 
ture Act  had  not  passed;  (2^)  and  no  direct  appeal 
can  henceforth  be  brought  from  any  judgment, 
decree,  or  order  of  the  High  Court  of  Justice,  or  from 
any  division  of  it,  nor  from  the  Court  of  Admiralty  or 
Bankruptcy  to  the  House  of  Lords,  but  only  through 
the  Court  of  Appeal  constituted  by  the  Act.  (a) 

The  appellate  jurisdiction  of  the  House  of  Lords 
(as  constituted  by  the  Appellate  Jurisdiction  Act, 
1876),  (h)  is  to  be  exercised  by  Lords  of  Appeal, 
consisting  of  such  peers  as  have  held  or  hold  certain 
high  judicial  offices,  and  two  (and  eventually  four) 
Lords  of  Appeal  in  Ordinary  appointed  under  the 
Act.  (h)  Not  less  than  three  Lords  of  Appeal  must 
be  present  to  constitute  a  Court.  The  Lords  of 
Appeal  have  authority  and  power  to  hear  and  deter- 
mine appeals,  not  merely  during  the  sittings  of  the 

(1/)  ^ic  in  the  Act.  (z)-T-  A.  1877,  s.  86.  (jt)  lb. 

(h)  39  &  40  Vic.  c.  59. 


COUNTY  COURT  JUDICATURE.  45 

House  of  Lords,  but  after  a  prorogation  or  dissolu-  l^*^''f^"^^; 
tiou  of  Parliament.    The  Lords  of  Appeal  in  Ordinary      — 
are  constituted  Lords  of  Parliament  virtute  q^cii,  and 
while  they  continue  in  office,  like  the  Peers  Spiritual. 

(23.)  The  highest  ideal  of  a  complete  system  of  county 
judicature  would  seem  to  be  one,  which  would  estab- judicature, 
lish  a  direct  connexion  and  interdependence  between 
all  the  judicial  institutions  of  the  kingdom — reach- 
ing from  the  House  of  Lords  above  to  the  County 
Courts  below.  The  natural  basis  of  such  a  structure 
should  be  a  well-regulated  system  of  local  courts, 
which,  although  necessarily  of  an  inferior  order, 
might  be  associated  with  the  Supei-ior  Courts  in 
matters  of  jurisdiction  and  procedure,  and  entrusted 
with  authority  so  far  similar  and  sufficient  as  to  be 
enabled  to  assist  and  lighten  the  labours  of  the 
Superior  Courts ;  to  act  as  Courts  of  first  instance, 
affiliated  both  as  feeders  to,  and  auxiliaries  of,  the 
High  Court  of  Justice,  controlled  and  regulated  by 
the  double  check  of  appeal  and  removal ;  with  power 
in  the  superior  Court,  on  the  one  hand,  to  remit  to 
the  inferior  Court  cases  of  small  amount  and  simple 
character,  and,  on  the  other  hand,  to  remove  from 
the  inferior  into  the  superior  Court  cases  of  difficult}^, 
novelty,  or  exceptional  importance.  The  County 
Officers  and  Courts  (Ireland)  Act,  1877,  (c)  to  a  great 
extent  embodies  this  idea. 

Its  professed  object  is  to  improve  the  character 
and  extend  the  jurisdiction  of  our  principal  local 
Courts,  called  the  Civil  Bill  Courts,  whilst  the  Judi- 
cature Act  ((/)  has  provided,  that  the  important 
rules  of  law  which  it  has  enacted  and  declared  re- 
specting legal  and  equitable  rights  and  principles(e) 
are  to  be  enforced  and  to  receive  effi^ct  in  all  Courts, 
inferior  as  well  as  superior,  in  all  matters  to  which 

0)  40  &  41  Vic.  c.  50.  (.d)  J.  A.  1877,  s,  79, 

(e)  J.  A.  1877,  s.  28. 


4(>  COUNTY  COURT  JUDICATURE. 

intrnduc  they  relate,  so  far  as  they  are  cognizable  in  such 
■ —  '  Courts.  And  further,  it  has  j)rovided  that  the  Rules 
of  the  Supreme  Court  of  Judicature  as  to  Pleading, 
Practice,  and  Procedure,  may  be  made  applicable  to 
the  Recorder's  and  (/)  Local  Courts  of  Record  in 
Ireland,  by  an  order  of  the  Lord  Lieutenant  in 
Council,  {g) 

The  Civil  Bill  jurisdiction  now  existing  in  the 
thirty-two  counties  of  Ireland  was  first  given  by  the 
Act  2  Geo.  I.,  c.  11  (a.d.  3  715),  to  be  exercised  by 
the  Judges  of  the  Superior  Courts  of  Common  Law 
when  going  their  respective  Circuits  as  Judges  of 
Assize.  The  jurisdiction  was  originally  limited  in 
amount  to  the  sum  of  £10,  of  late  Irish  currency,  in 
cases  of  debt  or  assumpsit,  and  to  £5  in  cases  of 
trover,  quantum  meruit,  trespass,  or  detinue  of 
goods,  but  60  as  title  to  land  was  not  involved.  By 
the  1  Geo.  II.,  c.  14,  the  amount  was  extended  to 
£20,  in  respect  of  specialties,  bills  of  exchange,  and 
promissory  notes.  Afterwards  the  entire  Civil  Bill 
jurisdiction,  with  some  trifling  exceptions,  was  trans- 
ferred from  the  Judges  to  Chairmen  at  Quarter 
Sessions,  in  a  Court  created  by  the  36  Geo.  III.,  c. 
25,  reserving  to  the  going  Judge  of  Assize  for  the 
County  an  appeal  from  their  decisions.  A  later 
Statute,  56  Geo.  III.,  c.  88,  conferred  jurisdiction  in 
ejectment  in  cases  of  deserted  tenements,  overholding 
tenants,  and  for  non-payment  of  rent. 

The  Statutes  did  not  enable  the  Civil  Bill  Court 
to  recognise  or  assert  claims  of  an  equitable  nature, 
although  they  enabled  a  defendant  to  rely  upon  any 
defence  which  he  could  have  in  any  Court  of  Equity, 
and  thereby  conferred  an  incidental  power  of  appeal- 
ing to  the  plaintiff's  oath.  (K) 

(/)  The  word  "other  "  seems  to  have  been  omitted. 

{g)3.  A.  1877,8.  79. 

(A)  See  Napier  ou  Civil  Bills,  p.  CO — Edition  of  183G. 


COUNTY  COURT  JUDICATURE.  47 

The  statutes  6  &  7  Wm.  IV.,  c.  75,  A.D.  ]83o,  en-  /««'-f«c- 

tory  View. 

larged  the  jurisdiction  in  amount  from  £20  Irish  to       

£20  British  currency,  and  extended  it  to  recovery 
of  annuities  charged  on  real  estate,  legacies  charged 
on  same,  and  to  legacies,  pecuniary  or  specific,  where 
the  assets  did  not  exceed  £200;  to  replevin  between 
landlord  and  tenant  £50,  and  for  adjusting  disputes 
as  to  the  mere  possession  of  land  not  involving 
questions  of  title,  where  the  rent  did  not  exceed  £20 
or  the  fine  £50.  Further  on,  in  point  of  time,  A.D. 
1851,  the  statute  14  &  15  Vic,  c.  57,  so  far  increased 
the  jurisdiction  of  the  Civil  Bill  Courts  as  to  include 
all  disputes  and  differences  between  party  and  party 
for  any  sura,  damages,  or  penalty  not  exceeding  £40, 
excepting  cases  of  slander,  libel,  breach  of  promise 
of  marriage,  and  criminal  conversation.  As  we  have 
seen  before,  the  tendency  of  later  legislation  seems 
to  be  to  enlarge  the  jurisdiction  of  our  several 
judicial  tribunals  in  general,  and  gradually  do  away 
with  limitations  of  pecuniary  amount  (which,  after 
all,  is  not  a  true  test  either  of  the  difficulty  or  of 
the  importance  of  a  contention),  substituting  in  its 
stead  the  double  safeguard  of  an  appeal  and  a  power 
of  removal  to  a  higher  Court.  Accordingly,  the 
County  Officers  and  Courts  (Ireland)  Act,  1877,  has 
increased  the  old  common  law  jurisdiction  of  the 
Civil  Bill  Courts  in  actions  for  debt  or  damages  from 
£40  to  £50,  (i)  and  in  ejectment  from  £20  to  £30 
annual  value,  {j)  and  has  conferred  a  jurisdiction  in 
equitable  cases  almost  entirely  new,  and  of  so  very 
extensive  a  range,  that  it  is  all  but  conterminous  as 
to  subjects  with  that  of  the  old  Court  of  Chancery, 
embracing  administration  suits,  execution  of  trusts, 
foreclosure  and  redemption  of  mortgages,  specific 
performance  of  contracts  as  to  realty,  reformation 

(t)  40  &  41  Vic,  c.  56,  s.  50.  0')  S.  53. 


48  COUNTY  COURT  JUDICATURE. 

rifrorn-^.  and  cancellation  of  written  agreements  relating  to 

tort/  View.  .    .  ry  t        i 

—  the  same,  partnership  accounts,  partitions  or  land, 
prevention  of  waste  between  landlord  and  tenant, 
maintenance  and  care  of  the  property  of  infants, 
injunctions,  proceedings  under  the  Married  Women's 
Property  Act,  1870,  the  Trustee  Eelief  Acts,  and  the 
Trustee  Acts — in  fact  everything  embraced  in  the 
assignment  of  business  to  the  Chancery  Division  of 
the  High  Court  of  Justice  except  the  raising  of 
portions  and  charges  on  land,  and  sale  of  land  sub- 
ject to  lien  or  charge.  The  above  subjects  are  gene- 
rally limited  in  amount  by  the  sum  of  £500  in  cash 
and  £30  per  annum  of  annual  value  of  the  property 
involved  in  the  suit  or  matter. 

The  inter-communication  between  the  Civil  Bill 
Courts  and  the  Superior  Courts  in  common  law  ac- 
tions, by  way  of  appeal,  is  still  preserved  to  the 
Judges  of  the  High  Court  of  Justice  on  their  circuits, 
or  in  the  Consolidated  Nisi  Prius  Court,  as  regards 
the  County  Court  of  Dublin ;  and  as  regards  the 
newly  conferred  equitable  jurisdiction,  an  appeal  is 
given  to  the  Lord  Chancellor  by  name,  (/»■)  but  in 
effect  to  such  of  the  judges  of  the  Chancery  Division 
as  the  Lord  Chancellor  may  allot  the  business  to, 
by  General  Order. (/-) 

Then,  as  regards  transfer  of  causes  from  the  lower 
to  higher  jurisdiction,  it  is  provided  that  the  Lord 
Chancellor  (i.e.  such  of  the  Chancery  Judges  to 
whom  he  may  allot  the  business),  on  the  application 
of  any  party  to  the  suit  or  matter,  may  transfer  the 
suit  or  matter  to  the  Chancery  Division,  and  the 
Chairman  may,  if  he  finds  in  the  progress  of  the 
suit  or  matter  that  the  subject-matter  exceeds  in 
amount  the  strict  limits  of  his  jurisdiction,  direct  it 
to  be  transferred  to  the  Chancery  Division  of  the 

(/•)  40  &  41  Vic,  c.  5G,  s.  43.  (0  S.  45. 


COUNTY  COURT  JUDICATURE.  49 

Hio-h  Court,  unless  the  parties  wish  to  have  it  re-   Jn(ro<'u.'- 

tained  and  so  consent  by  memorandum  in  writing,      

in  which  latter  case,  the  Chairman  is  authorized  to 
proceed  and  determine  the  matter ;  but  if  the  cause 
is  transferred  to  the  High  Court,  the  error  or  excess 
in  amount  does  not  affect  any  decree  or  order  made 
previously  by  the  Chairman,  and  the  Chancery 
Judge  may  either  retain  the  cause  and  determine  it, 
or  direct  it  to  proceed  in  the  inferior  court,  and  his 
order  to  that  effect  confers  jurisdiction  on  the  court 
below.(m) 

The  jurisdiction  of  the  High  Court  is  also  made 
ancillary  to  that  of  the  Civil  Bill  Court  by  per- 
mitting any  party  to  a  suit  or  proceeding  below, 
durino-  the  intervals  between  the  sittings  of  the 
Civil  Bill  Court,  to  apply  to  the  proper  Judge  of  the 
Chancery  Division  for  an  injunction  in  any  suit  in- 
stituted below,  (n) 

On  the  other  hand,  when  any  suit  or  proceeding 
is  pending  in  the  Chancery  Division  of  the  High 
Court,  which  might  have  been  commenced  in  a  Civil 
Bill  Court,  the  Judge  before  whom  it  is  pending 
may,  on  the  application  of  any  party  to  it,  or  with- 
out any  application,  and  of  his  own  accord,  transfer 
the  suit  to  the  Civil  Bill  Court,  where  it  shall  be 
carried  on  as  if  it  had  originated  there. (o) 

The  provisions  of  the  Common  Law  Procedure 
(Ireland)  Act,  1870,  {p)  whereby,  in  addition,  certain 
actions  on  contract,  actions  for  malicious  prosecu- 
tion, illegal  arrest,  illegal  assault,  false  imprison- 
ment, libel,  slander,  seduction,  or  other  actions  of 
tort  brought  in  one  of  the  Superior  Courts,  might 
be  remitted  for  trial  in  the  Civil  Bill  Division  of 
the  county  in  which  a  defendant  usually  resides, 
where  the  plaintiff  has  no  visible  means  of  paying 

(m)  40  &  4i  Vic,  c  56,  s.  37.  (»)  S.  44.  (o)  S.  36. 

ip)  33  &34  Vic,  c  100,  ss.  5  aud  6. 


50  COUNTY  COUET  JUDICATURE. 

introdnc-  t,he  costs  of  the  action,  in  case  a  verdict  should  be 

tory  Vino. 

found  for  the  defendant,  and  fails  to  give  security 

for  the  costs,  or,  show  that  he  has  a  cause  of 
action  fit  to  be  prosecuted  in  the  Superior  Court, 
are  extended  to  actions  of  detinue  and  for  breaches 
of  contract  where  the  claim  is  for  unliquidated 
damages ;  {q)  and  in  all  such  cases  of  remitted  ac- 
tions the  Civil  Bill  Court  jurisdiction,  as  to  amount 
of  damages  to  be  awarded,  is  made  co-extensive  with 
that  of  the  Superior  Court. (r) 

The  County  Officers  and  Courts  (Ireland)  Act, 
1S77,  further  provides  for  a  reduction,  in  the  future, 
of  the  number  of  the  County  Court  Judges,  from 
thirty-three  to  twenty-one  first  class  district  chair- 
manships, merging  nineteen  of  the  present  offices, 
and  at  the  same  time  uniting  with  the  office  of 
Chairman  of  the  Count}'',  the  five  Recorderships  of 
Dublin,  Cork,  Londonderry,  Belfast,  and  Gal  way.  (s) 
The  office  of  Chairman  of  the  Civil  Bill  Court  was 
usually  filled  by  a  barrister,  non-resident,  and  oc- 
cupied, as  to  the  greater  portion  of  his  time,  in  the 
pursuit  of  private  practice — circumstances  which, 
though  doubtless  maintaining  and  enhancing  his 
general  legal  knowledge  and  aptitude  for  the  dis- 
charge of  judicial  functions,  were,  nevertheless,  not 
specially  favourable  to  the  regularity  of  the  pro- 
cedure of  the  Civil  Bill  Courts,  or  the  calm  and 
deliberate  consideration  of  the  small  but  often 
tangled  contentions  of  country  suitors.  Under  the 
new  regime,  all  Chau-men  appointed  after  the  14th 
August,  1877,  are  prohibited  from  practising  at  the 
Bar  or  being  concerned  as  solicitors  (t). 
Amend-  (24.)  The  Lofjislature  has  taken  the  occasion  of 

law.  the  reconstruction  and  consolidation  of  our  principal 

Courts  into  one  Supreme  Court  of  Judicature,  to 

(2)  40 &  41  Vic,  c,  50,  s.  51.  (?•)  S.  52. 

(s)  Sees.  85  and  80.  («)  S.  93. 


AMENDMENT  OF  LAW.  51 

amend  and  declare  the  law  to  be  hereafter  admi-  introduc- 
tory Vuw. 

nistered  in  the  High  Court  of  Justice,  and  also  in       

inferior  Courts,  {u)  so  as  to  make  it  uniform  in  the 
several  divisions  of  the  Court,  and  elsewhere,  and 
to  reconcile  different  rules  on  the  same  subject, 
where  they  conflict.  The  Act  (y)  enumerates  ten 
subjects  in  respect  of  which  the  law  is  expressly 
amended  or  declared,  including,  (1)  the  adminis- 
tration of  assets  of  insolvent  estates,  in  which  the 
rule  of  the  Court  of  Bankruptcy  is  adopted  in 
preference  to  the  rule  of  the  Court  of  Chancery ; 
(2)  the  Statutes  of  Limitations  and  their  applica- 
tion in  cases  of  express  trust ;  (3)  equitable  waste  ; 
(4)  merger  by  operation  of  law;  (5)  possessory 
actions  by  mortgagors  in  their  own  names  and 
right;  (6)  assignment  of  debts  and  other  legal 
choses  in  action ;  (7)  stipulations  in  contracts 
which  are  not  of  the  essence  of  the  contract ;  (8 ) 
the  right  to  injunctions  and  to  receivers  ;  (9)  the 
standard  for  damages  in  cases  of  collision  between 
ships,  in  which  the  rule  of  the  Court  of  Admiralty 
is  adopted  in  preference  to  that  of  the  common 
law ;  (10)  the  custody  and  education  of  infants  in 
which  the  rules  of  Courts  of  Equity  are  to  prevail 
over  those  of  a  Court  of  Common  Law  ;  and  finally. 
Rule  11  enacts  that  generally  in  all  matters  not 
particularly  mentioned,  the  rules  of  equity  are  to 
I  prevail  over  those  of  a  Court  of  Common  Law, 
■  where  they  relate  to  the  same  matter  and  happen  to 
'  conflict.  Sir  George  Jessel,  M.R.,  has  said  (w)  that 
'  the  2nd  subsection  of  this  section — 25th  in  England 
and  28th  in  Ireland — is  declaratory  of  the  law  as  it 
1  existed  before:  whilst  all  the  other  subsections 
I — 

(u)  J.  A.,  1873,  s.  91 ;  J.  A.,  1877,  s.  79. 

(i-)  J.  A.,  1873,  s.  25,  and  J.  A.,  1875,  s.  10;  J.  A.,  1877,  s.  28. 
(>/•)  In  re  Joseph  Suche  and  Company,  Limited,  Ex  parte  the  National 
Bunk,  L.  R.  1  Ch.  D.  48 ;  24  W.  R.,  184 ;  vide  infra,  Part  V.,  chap.  23. 

d2 


52  AMENDMENT  OF  LAW. 

jiitrodnr.  ygiate  to  and  involve  alterations  of  the  law.     They 

t(irti  Vieio.  ^  ^  _  ' 

—  are  of  very  serious  importance,  and  will  probably 
lead  to  many  doubts  and  decisions,  both  in  the 
superior  and  in  the  inferior  courts  of  justice  in 
which  they  may  be  in  force.  In  Part  5  of  what 
follows,  an  attempt  has  been  made  in  some  degree 
to  explain  these  subsections,  not  so  much  in  the 
hope  of  very  much  assisting  the  reader  in  the 
application  of  them,  as  to  indicate  the  external 
bounds  and  limits  of  the  rules,  in  regard  to  subjects 
which  may  seem  not  very  germane  to  an  Act  on 
Judicature. 


PART  I. 


JUDICATORY. 


Chapter      I. — The  Supreme  Court  of  Judicature,  its  Rules 
AND  Officers. 

II. — High  Court  of  Justice  and  its  Judges. 

III. — Divisions  of  the  High  Court. 

IV. — Divisional  Courts. 

Y. — Commissions  of  Assize  and  Nisi  Prius. 

VI. — Court  Sittings  and  Vacations. 

VII. — Nisi  Prius  Sittings  in  Dublin. 

VII  [. — Election  Judges. 

IX. — The  Court  of  Appeal. 


CHAPTER  I. 

The  Supreme  Court  of  Judicature,  its  Rules 
AND  Officers. 


23.  The  Supreme  Court  of  Judicature,  55. 

26.  The  President,  55, 

27.  Twofold  Division  of,  56. 

28.  Jurisdiction  and  Functions  of,  56. 

29.  Council  of  Judges — Annual  Report,  57. 

30.  Preliminary  Rules  of  Court,  58. 

31.  Future  Rules,  60. 

32.  Regard  to  English  Rules,  and  Parliamentary  Sanction,  61. 

33.  Schedule  Rules,  62. 

3i.  Rules  of  Probate  Court,  62. 

35.  Rules  of  other  Courts  transferred,  63. 

36.  Rules  of  Bankruptcy  Court,  63. 

37.  Other  Powers  as  to  Rules,  63. 

38.  Force  and  Effect  of  Judicature  Rules,  6-t. 

39.  Books  and  Papers  transferred  to,  64. 

40.  Transfer  of  Officers  to,  65. 

41.  Rank  and  Position  retained,  65. 

42.  Rights  of  Succession, -66. 

43.  Officers  Attached  to  Divisions,  G6. 

44.  Personal  Offic(TS,  67. 

45.  Redistribution  of  Business,  67. 

46.  Transfer  of  Officers  from  Divisions,  67. 

47.  Present  Consolidation  of  Offices,  GS. 

48.  Future  Consolidation  of  Offices,  68. 

49.  Officers'  Duties  not  provided  for,  69. 
60.  Analogous  Duties,  69. 

51.  Lord  Chancellor  may  alter  Duties  and  Designation  of  certain 

Officers,  69. 

52.  Officers  of  Court  of  Appeal,  70. 

53.  Retirement  of  Officers,  72. 

64.  Consent  of  existing  Officers  to,  73. 

55.  Compensation  for  Loss,  73. 

56.  Increase  of  Salary  with  Duty,  73. 

57.  Proximate  Reorganization  of  Offices,  T'-i.' 

58.  Future  Vacancies  Suspended,  74. 

59.  Rights  of  Patronage,  74. 

60.  Junior  Clerkships  open  to  Competition,  75. 

61.  Appointments  in  Chancery  Division,  75. 

62.  Other  Divisions,  76. 

63.  Of  Personal  Officers,  76. 

64.  Of  General  Officers  by  Lord  Chancellor,  76. 

65.  Removal  of  Officers,  76. 

66.  Autiiority  of  Courts  over  Officers,  how  exercised,  77. 

67.  Salary  of  Future  Otticers,  77. 

68.  Pensions  of  Future  Officers,  77. 

69.  Solicitors  and  Attorneys,  78. 

70.  Jurisdiction  over,  78. 


SUPREME  COURT  OF  JUDICATURE.  55 


71.  Apprentices,  78. 

72.  Commis.sioners  to  Administer  Oaths,  78. 

73.  Limit  of  Place  removed,  79. 

74.  Answers  and  Affidavits,  how  taken,  79. 

75.  Acknowledgment  of  Deeds,  79. 

76.  Receiver  Master,  80. 

77.  Officers  of  Receiver  Master,  80. 

78.  Officers  of  Land  Judges  and  Local  Government  Board,  81. 


(2.5.)  Since  tlie  1st  day  of  January,  1878,  the  The 
High   Court   of  Chancery,  the  Court   of  Queen's  'SlurTof 
Bench,  the  Court  of  Common  Pleas,  the  Court  of ''""!:i:i"'^- 
Exchequer,  the  Court  of  Probate,  the  Court  for  Ma- 
trimonial  Causes   and   Matters,   and  the    Landed 
Estates  Court,  have  been  united  and  consolidated 
together,  and  henceforth  constitute  one  Supreme 
Court  of  Judicature  in  Ireland,  {x) 

The  former  Courts  have  ceased  to  exist,  so  far 
that  the  jurisdiction  formerly  vested  in  them  can 
no  longer  be  exercised,  and  no  further  appointments 
can  be  made  to  them.  (//) 

TheCourt  of  Judicature  is  designated  a  "Supreme" 
Court  like  its  sister  in  England,  which  was  properly 
so  named  by  the  framers  of  the  original  Act,  when 
by  its  plan  the  decisions  of  the  Court  were  to  be 
final  and  not  subject  to  review  in  or  by  any  higher 
Court.  Since  the  change  of  plan,  and  return  to  the 
House  of  Lords  as  the  final  Court  of  Appeal,  the 
description  of  "  Supreme  "  seems  to  be  something 
of  a  misnomer,  inasmuch  as  the  House  of  Lords 
sitting  in  Paiiiament  seems  by  usage  and  by  its 
jurisdiction  of  appeal,  exclusively  entitled  to  the 
epithet  of  "  Supreme." 

(26.)  The  statute  does  not  say  who  is  to  be  the  The 
President  of  the  Supreme  Court  of  Judicature,  but 
it  may  be  assumed  that  the  Lord  Chancellor,  from 
the  nature  of  his  office  and  from  his  being  intrusted 
with  the  duty  of  fixing  the  time  and  convening  the 

{x)  J.  A.,  1877,  s.  4.  {y)  S.  25. 


5G  TWOFOLD  DIVISION. 

'J'he  meetincrs  of  the  Council  of  the  Jud^^es  of  the  Su- 

Court.  preme  Court  of  Judicature  (with  the  concurrence 
of  the  Lord  Chief  Justice),  (a)  and  having  an  abso- 
lute veto  on  all  rules  and  orders  to  be  made  after 
the  commencement  of  the  Act,  to  alter  or  annul  any 
rules  of  Court  (although  he  has  no  such  absolute 
veto  as  to  orders  to  be  recommended  to  the  Lord 
Lieutenant  between  the  passing  and  the  commence- 
ment of  the  Act),  is  intended  to  act  as  President  of 
the  Supreme  Court.  (6) 
Twofold  C27 )  The  Supreme  Court  of  Judicature  consists 

divisions  of  ^        '  •■ 

of  two  divisions — one  of  which,  under  the  name  of 
I.  High      "  Her  Maiesty's  High  Court  of  Justice,"  is  to  have 

Court  of  .......  -11 

Justice.  and  exercise  original  jurisdiction,  with  such  appel- 
late jurisdiction  from  inferior  Courts  as  is  by  the 
Act  afterwards  to  be  mentioned,  (c)  The  English 
statute  (d)  mentions  appeals  from  inferior  Courts, 
such  as  Petty  Sessions  and  County  Courts,  and 
provides  for  their  being  brought  before  a  Divi- 
sional Court,  but  no  such  mention  is  to  be  found  in 
our  Act,  and  appeals  from  Civil  Bill  Courts  must 
probably  be  heard  before  a  single  Judge  of  the  High 
Court  as  heretofore. 
IT.  Court  of  The  other  division  is  "Her  Majesty's  Court  of 
Appeal  in  Ireland,"  having  appellate  jurisdiction 
with  such  original  jurisdiction  as  may  be  incident 
to  the  determination  of  any  appeal,  (e) 
jnrisdic-  (28.)  No  particular  jurisdiction  is  conferred  on 
functions  of  the  Supreme  Court  of  Judicature  as  such,  except  a 
Court.'"^  nominal  jurisdiction  over  solicitors,  attorneys,  and 
proctors,  who  are  deemed  to  be  its  officers,  and  over 
whom  it  may  exercise  the  same  jurisdiction  as  any 
one  of  the  Superior  Courts  of  Law  or  Equity  might 
previously  have  done.  (/)  It  is  barely  conceivable 
that  the  Supreme  Court  might  be  summoned  and 

(a)  J.  A.,  1877,  .s.  70.  (6)  S.  CI.  (c)  S.  5. 

((0  J.  A.,  1873,  s.  45.  (e)  S.  5.  {/  )  S.  78. 


Apneal. 


COUNCIL  OF  JUDGES.  ^7 

sit  to  exercise  iurisdiction  over  its  delinquent  offi-  Tiie 

''  1   •  1  Supreme 

cers,  but  this  dut}'-  is  delegated  to  and  is  to  be  exer-  court. 
cised  by  the  Lord  Chancellor,  (</)  otherwise  the 
Supreme  Court  has  no  judicial  or  juridical  function 
except  as  a  consultative  body  to  recommend  the 
making  or  annulling  of  rules  for  the  organization  of 
the  business  of  the  High  Court  of  Justice  and  of 
the  Court  of  Appeal,  (A-)  and  to  report  on  the  ope- 
ration of  the  Judicature  Act,  and  the  working  of  the 
offices  connected  with  it,  and  on  any  defects  which 
may  appear  to  exist  in  the  system  of  procedure,  or 
the  administration  of  the  law  within  its  own  pre- 
cincts, or  in  any  other  of  the  courts  affiliated  to  it 
by  way  of  appeal,  (i) 

(29.)  A  council  of  the  Judges  of  the  Supreme  council  of 
Court  of  Judicature  (of  which  due  notice  is  to  be  annual 
given  to  all  the  judges  thereof),  is  required  to  assem-  ^^p°'"*- 
ble  once  at  least  in  every  year  on  such  day  or  days 
as  shall  be  fixed  by  the  Lord  Chancellor  (with  the 
concurrence  of  the  Lord  Chief  Justice),  for  the  pur- 
pose of  considering  the  operation  of  the  Judicature 
Act,  and  of  the  Rules  for  the  time  being  in  force, 
and  also  the  working  of  the  several  offices,  and  the 
arrangements  relative  to  the  duties  of  the  officers 
of  the  said  courts  respectively,  and  of  inquiring  and 
examining  into  any  defects  which  may  appear  to 
exist  in  the  system  of  procedure  or  the  administra- 
tion of  the  law  in  the  High  Court  of  Justice  or  the 
Court  of  Appeal,  or  in  any  other  court  from  which 
any  appeal  lies  to  the  High  Court  or  any  judge  of 
it,  or  to  the  Court  of  Appeal.  The  council  are  re- 
quired to  report  annually  to  the  Chief  Secretary  to 
the  Lord  Lieutenant  of  Ireland  what  (if  any)  amend- 
ments or  alterations  it  would  in  their  judgment 
be  expedient  to  make  in    the  J  udicature  Act   or 


is)  S.  73.,  §  15.  Qi)  S.  70.  (0  S.  70. 

D  3 


58  PRELIMINARY  RULES. 

The  otherwise  relating  to  the  administration  of  justice, 

'coilrL^  and  what  other  provisions  (if  an}')  which  cannot 
be  carried  into  effect  without  the  authority  of 
Parliament  it  would  be  expedient  to  make  for  the 
better  administration  of  justice.  An  extraordinary 
council  of  the  judges  of  the  Supreme  Court  may 
also,  at  any  time,  be  convened  by  the  Lord  Chan- 
cellor, {j) 

It  does  not  appear  that  the  report  must  neces- 
sarily be  the  unanimous  report  of  the  entire  body, 
or  even  of  a  majority  of  the  judges ;  and  it  would 
seem  that  individual  members  of  the  council  are 
not  precluded  from  reporting  their  opinions, 
rreiimia-        ('?>0.)  The  Lord  Lieutenant  was  empowered  by  an 

ary  rules  ^        '  . 

tor  the  Act.  order  in  Council  made  at  any  time  before  the  1st 
January,  1878,  upon  the  recommendation  of  the  Lord 
Chancellor,  the  Lord  Justice  of  Appeal,  the  Chief 
Justice,  (Ic)  the  Master  of  the  Rolls,  the  Chief  Jus- 
tice of  the  Common  Pleas,  and  the  Chief  Baron,  or 
any  three  of  them,  and  of  the  other  judges  of  the 
several  courts  about  to  be  consolidated,  or  of  the 
majority  of  such  other  judges,  to  make  rules  to  be 
styled  Rules  of  Court  for  carrying  the  Judicature 
Act  into  effect  generally,  and  in  particular  for  all 
or  any  of  the  following  matters  : — 
Sittings  of       1.  For  reo-nlatiiiof  the  sittings  of  the  High  Court 
of  Justice  and  the  Court  of  Appeal,  and  of  any 
divisional  or  other  courts  of  the  same,  and  of  the 
Judges  of  the  High  Court  sitting  in  Chambers. 
ricadin?:,         2.  For  regulating  the  pleading,  practice,  and  pro- 
ali'd  '  '^'      cedure  in  the  High  Court  of  Justice  and  Court 
procedure.    ^^  Appeal,  including  all  matters   connected  with 
writs,  forms  of  actions,  parties  to  actions,  evidence 
and  mode  and  place  of  trial,  and  for  the  reporting 
giiort-iiand  by  a  Competent  short-hand  writer  of  the  evidence  in 

reports. 

(J)  S.  70.  (k)  Hie  iu  the  Statute. 


PRELIMINARY  RULES.  ,  59 

all  cases  of  trials  by  jury  whenever  it  is  expedient  tup. 

.      .      .  ,  ,    '  Supreme 

or  desu'abie  so  to  do.  court. 

3.  Generally  for  regulating  any  matters  relating  Dut^^f 
to  the  practice  and  procedure  of  the  courts  respec-  '^*'='"^*- 
tively,  or  to  the  duties  of  the  officers  of  the  same, 

or  of  the  Supreme  Court,  or  to  the  costs  of  pro-  costs. 

ceedinors  in  the  courts  (includino:  the  costs  to  be 

allowed  to  solicitors  of  the  Supreme  Court  in  respect 

of  business  transacted  in  or  before  any  of  the  courts 

or  the  offices  thereof,  or  the  fees,  remuneration,  and  Remunera- 

expenses  to  be  allowed  to  witnesses,  or  the  fees  to  wituesses. 

be  payable  to  or  receivable  by  Sheriffs  for  the  dis-  Fees  t.> 

charge  of  any  duties  under  the  Act  or  in  obedience 

to  any  order  of  the  Supreme  Court,  or  any  division 

or  master  thereof),  or  relating  to  the  conduct  of  civil  Conduct  of 

or  criminal  business  coming  within  the  cognizance  criminal 

of  the  said  courts  respectively  for  which  no  express 

provision  is  made  by  the  Act. 

4.  For  regulating  the  sittings  of  judges  in  cham-  Sittings  in 
bers,  the  issuing  and  hearing  of  summonses,  and 

the  allowance  or  disallowance  of  the  expense  of 
the  attendance  of  counsel  upon  such  hearings,  and 
generally  for  the  efficient  despatch  of  chamber 
business  under  the  provisions  of  the  Act. 

5.  For  pi'escribing,  regailating,  or  doing  anything  General. 
which,  under  the  Judicature  Act,  may  be  prescribed, 
regulated,  or  done  by  rules  of  court,  (l) 

6.  In  addition  to  these,  the  Lord  Lieutenant  in  v^catiors. 
council  is  authorized  in  like  manner  and  on  like 
recommendation  to  make  rules  before  or  after  the 
commencement  of  the  Act  to  make,  revoke,  or 
modify  orders  regulating  the  vacations  to  be 
observed  by  the  High  Court  of  Justice  and  the 
Court  of  Appeal,  and  in  the  offices  of  the  said  courts 
respectively,  (m) 

(i)  J.  A.,  1877,  s.  Gl.  (m)  S.  30. 


60  FUTURE  RULES  OF  COURT. 

The  7.  Also  for  the  hearing  in  Dublin  during  vaca- 

c'oZT'  tion  by  Judges  of  the  High  Court  of  Justice  and  the 
vac^n  Judges  of  the  Court  of  Appeal  respectively  of.  all 
judges.        g^^gj^  applications  as  may  require  to  be  immediately 

or  promptly  heard,  (n) 

Kuies  of  (a.)  There  is  an  express  exception  to  the  power 

nota'ffJc'ted.  by  rulcs  to  alter  the  course  of  procedvn-e,  namely, 

as  regards  the  mode  of  giving  evidence  by  the  oral 

examination  of  witnesses  in  trials  by  jur^^ ;  this  the 

court  cannot  alter  or  interfere  with,  save  so  far  that 

for   special   reasons   it   may  allow  depositions    or 

affidavits  to  be  read,  (o) 

Juries.  Qj^-^  go  ^Iso  it  is  bcyoud  the  power  of  the  rules  to 

alter  the  law  relating  to  jurymen  or  juries,  {p) 
statutory         Provisious  in  respect  to   the  practice  and  pro- 
iiK?J  be "     cedure  of  any  court  whose  jurisdiction  is  transferred, 
''^'^"'^'       although  contained  in  an  Act  of  Parliament,  may 
be  modified  by  rules  of  the  Court  of  Judicature  to 
any   extent  that    may   be   deemed   nece&sary    for 
adapting  them  to  the  High  Court  of  Justice  and 
Reiatin!?  to  the  Court  of  Appeal,  {q)     And  provisions  relating 
!!i'.'n!ey  in '^  to  the  payment,  transfer,  or  deposit  into,  or  in,  or 
Coin!''  °^   out  of  court  of  any  money  or  property,  or  to  the 
dealing  with  same,  are  to  be  deemed  provisions  re- 
lating to  practice  and  procedure,  {r) 
Xecossary        fj^g  majoritics  required  of  the  Chief  Judges  and 

iir.ij<  rities  -,  .      -,  ,  •        t        •  T 

Of  Judges,  of  the  other  judges  respectively  m  recommendmg 
these  initiator u  rules  is  not  stated  to  be  a  majority 
of  those  actually  present  at  a  meeting,  but  would 
seem  to  require  an  absolute  majority  of  all  the  judges 
of  each  order,  they  being  duly  convened,  {s) 
Future  (31.)  After  the  Judicature  Act  has  come  into  opera- 

cou'n."  ti<  )n,  theLord  Lieutenant  is  empowered — at  any  time 
— with  the  concurrence  of  a  majority  of  the  Judges  of 
the  Supreme  Court  present  at  any  meeting  for  that 

(«)  J.  A.,  1877,  s.  31.  (o)  S.  G(J.  (/O  lb. 

i^q)  J.  A.,  1877,  s.  G8.  (0  Jb.  (s)  S.  (Jl. 


REGARD  TO  ENGLISH  RULES.  61 

purpose  held  (of  which  majority  the  Lord  Chancellor  The 
must  be  one)  by  order  in  council  to  alter  or  annul  court. 
any  rules  of  court  for  the  time  being  in  force. 

He  may  also  by  a  like  order  in  council  have  and 
exercise  the  same  power  of  making  rules  of  court 
as  is  by  the- previous  part  of  the  section  ver.ted  in 
the  Lord  Lieutenant  on  the  recommendation  of  the 
judges  in  the  section  already  specified  before  the 
commencement  of  the  Act.  (t) 

As  reo;ards  these  future  rules,  and  also  in  case 
there  should  happen  to  be  no  rules  made  previous 
to  the  Lst  January,  1878,  it  would  seem  the  Lord 
Lieutenant  in  council  may  act  on  the  recommend- 
ation of  an  absolute  majority  of  all  the  Judges 
of  the  High  Court,  without  regard  to  rank,  provided 
the  Lord  Chancellor  be  included  in  the  majority; 
and  it  is  presumed  provided  the  entire  body  of  the 
judges  have  been  duly  convened  for  the  purpose. 
The  corresponding  provision  in  the  English  Judi- 
cature Act,  1875,  (u)  secures  to  the  Lord  Chancellor, 
as  the  minister  responsible  to  Parliament  for  the 
working  of  the  judicial  system,  not  merely  a  veto  in 
the  making  or  the  alterinor  of  the  rules  of  the  Court 
of  Judicature,  but  a  preponderating  influence,  vesting 
in  him  the  power  of  selecting  the  greater  number  of 
the  members  of  the  limited  tribunal. 

(32.)  The  statute  imposes  as  a  condition  or  qualifi-  Regard  to 
cation  of  the  power  of  making,  altering,  or  annulling  English** 
rules    of   court,  that  regard   shall  be  had    to   the  ^"''^^• 
rules  of  court  for  the  time  being  in  force  in  England, 
under  the  provisions  of  the  Supreme  Court  of  Judi- 
cature Acts,  1873  and  1875,  so  as  that  the  pleading, 
practice,  and  procedure  in  the  High  Court  of  Justice 
and  Court  of  Appeal  in  Ireland,  shall,  so  far  as  may 
be  practicable  and  convenient,  having  regard  to  the 

(OS.  6L  00  s.  17. 


G2 


RULES  IN  SCHEDULE. 


The 

Supreme 

Court. 


Parlia- 

im-iitary 

sanction. 


Scliedule 
liules. 


lliiles  of 
I'roliate 
Court 
adopted. 


difference  of  the  laws  and  circumstances  of  the  two 
countries,  be  the  same  as  the  pleading,  practice,  and 
procedure  in  the  High  Court  of  Justice  and  Court 
of  Appeal  in  England,  {v) 

In  addition  to  this,  all  rules  of  court  made  under 
the  Act  must  be  laid  before  each  House  of  Parlia- 
ment within  forty  days  after  they  are  made,  if 
Parliament  should  be  then  sitting,  or  if  not,  within 
forty  days  after  the  commencement  of  the  next 
session,  and  may  be  annulled  on  an  address  from 
either  House  within  100  days  subsequent,  but 
without  prejudice  to  the  validity  of  proceedings 
meanwhile  taken  under  them,  {lu) 

(33.)  Certain  rules  of  procedure  are  prescribed  in 
the  schedule  to  the  Act,  thirty-eight  in  number,  and 
chiefly  borrowed  from  the  English  rules,  and  they 
are  to  be  read  and  taken  as  part  of  the  Act,  and  they 
are  in  operation  from  the  1st  day  of  January,  lb78, 
and  so  far  as  they  extend  regulate  the  proceedings 
in  the  High  Court  of  Justice  and  Court  of  Appeal 
until  altered  or  varied,  and  although  contained  in 
the  Act  they  are  mere  Rules  of  Court,  capable  of 
being  annulled  or  altered  like  any  other  rules  (x). 

(34.)  All  rules  and  orders  which  were  in  force  in 
the  Court  of  Probate,  and  the  Court  for  Matrimonial 
Causes  and  Matters  respectively,  at  the  time  of  the 
commencement  of  the  Act,  excei)t  so  far  as  they 
shall  by  rules  of  the  Court  of  Judicature  be  ex- 
pressly varied,  remain  and  are  in  force  in  the  High 
Court  of  Justice,  and  in  the  Court  <  if  Appeal  res- 
pectively in  the  same  manner  as  if  they  had  been 
Rules  of  Court  under  the  Judicature  Act  {y). 

The  full  force  of  this  reservation,  and  of  the 
words  "  expressly  varied,"  is  not  very  clear.  The 
Judicature    Act,    1875,  (z)   includes    in   a   similar 


(«;)  J.  A.,  1877,  s.  61. 
ijj)  S.  GJt. 


(w)  S.  69  (x)  S.  61. 

(.-)  S.  18. 


EULES  OF  OTHER  COURTS.  Oo 

cateo-orv  rules  in  relation  to  appeal  in  bankruptcy,  The 

°  ..  f>iii       Supreme 

a  court  whose  jurisdiction  is  not  transterred  to  the  com-t. 
Supreme  Court,  though  affiliated  to  it  by  way  of 
appeal,  and  its  orders  as  to  appeals  are  subordi- 
nate to  those  made  by  the  High  Court  where  they 
conflict  (a). 

CSS.")  By  virtue  of  another  section  (h)  all  General  Rules  of 

......        other 

Orders  and  Rules  of  any  court  whose  jurisdiction  courts 
is  transfeiTed  regulating  forms  and  methods  of  pro- 
cedure in  force,  when  the  Judicature  Act  came  into 
operation,  and  which  are  not  inconsistent  with  the 
Act  and  its  schedule,  are  continued,  and  are  in 
force  in  the  High  Court  of  Justice  and  the  Court 
of  Appeal  until  otherwise  provided  by  rules  of  the 
Court  of  Judicature,  in  such  and  the  like  cases  as 
those  to  which  they  would  have  been  applicable 
in  the  Court  so  transferred  if  the  Act  had  not 
passed. 

Under  these  provisions  all  the  pre-existing  rules 
of  the  particular  courts  are  to  be  considered  as  if 
written  into  the  schedule  by  way  of  addition  to 
those  already  there,  and  the  conjoint  effect  to  be  as- 
certained. But  each  particular  set  of  rules  is  to  be 
applied  to  its  appropriate  class  of  proceedings,  and 
in  the  absence  of  express  variation  by  the  Act  and 
its  schedules,  or  absolute  inconsistency,  the  particu- 
lar Rules  must  stand  until  altered  by  Rules  of  the 
Court  of  Judicature.  The  task  of  construing  toge- 
ther the  judicature  and  the  particular  Rules  may 
not  be  free  from  difficulty. 

(36.)  Rules  and  Orders  of  the  Court  of  Bank-  Rules  of 
ruptcy  for  regulating  its  procedure,  and  the  power  Bankruptcy 
to   make  them  are  untouched  by  the  Judicature 
Act. 

(a)  See  In  re  Lewer,  ex  parte  Garrard,  25  W.R.,  3Gi;  W.N.  1877, 
53  A.C. 

(6)  J.  A.,  1877,  s.  67. 


G4  FORCE  AND  EFFECT  OF  RULES. 

The  Appeals  from  the  orders  of  its  Judges  lie  in  the 

Court.        same  manner,  and  in  respect  of  the  same  proceed- 

ings  as  heretofore  to  the  Court  of  Appeal,  save  so 

far  as  the  procedure  on  appeals  may  be  altered  by 

any  rules  of  the  Court  of  Judicature  (c). 

Other  C37_~)  The  powers  to  make   Rules  of  Court  con- 

powers  as  to  . 

Kuiesiiot  tained  in  section  61  are  not  to  affect  special  pro- 
visions in  the  Act  enabling  rules  to  be  made  in 
particular  instances,  for  example,  by  sections  7  and 
39  as  to  Landed  Estates  Court  business,  and 
section  75  as  to  receiver  business  b3'  the  Lord 
Chancellor  and  the  Land  Judges,  by  section  8  as  to 
bankruptcy  business,  by  section  43  as  to  rota  of 
Judges  for  election  petitions,  by  section  46  as  to 
direction  and  superintendence  of  Divisional  Courts, 
by  section  49  as  to  land  cases  reserved,  and  by 
section  84  as  to  fees  {d). 
Force  and  (38.)  Rulcs  of  Court  made  in  pursuance  of  the 
jiKiicature  forcffoinff  provisions,  if  made  befoi'e  the  commence- 
ment  of  the  Act,  come  into  operation  immediately 
after  its  commencement,  and  rules  made  after  the 
Act  come  into  operation  at  th^  time  stated  in  the 
rules,  and  thencefoi-th  regulate  all  matters  to  which 
they  extend  until  annulled  or  altered  in  pursuance 
of  the  Act  (e). 
Books  and  (39.)  All  books,  documeuts,  papers,  and  chattels 
transCirrea  in  the  posscssiou  of  any  court  whose  jurisdiction  is 
j'udi'catur"'.  transferred  to  the  High  Court  of  Justice  or  the  Court 
of  Appeal  or  of  any  officer  or  person  attached  to  any 
such  court  as  such  officer,  or  by  reason  of  his  being 
so  attached,  have  been  transferred  to  the  Supreme 
Court  of  Judicature,  and  are  to  be  dealt  with  by  the 
officer  or  person  in  possession  of  tliem  in  such  man- 
ner as  the  High  Court  of  Justice  or  the  Court  of 
Appeal  may  V)y  order  direct.     And  any  person  fail- 

(c)  S.  8  ;  and  see  lu  re  Lewer,  uhi  supra, 
id)  J.  A.,  1677,  s.  Gl,  §  10.  (f)  S.  GO,  §  'J. 


EXISTING  OFFICERS,  TRANSFER  OF.  65 

ing  to  comply  with  any  order  made  for  the  purpose  The 
of  giving  etiect  to  this  transfer,  will  be  guilty  of  a  court. 
contempt  of  the  court  making  the  order  {f). 

(40.)  The  Judicature  Act  has  attached   to   the  Transfer  of 

oxistiii "" 

Supreme  Court  of  Judicature  from  the  1st  day  of  staff  of  ° 
January,  1878,  all  officers  and  persons  who  on  that  court  of 
day  were  connected  with  any  court  whose  jurisdic- 
tion has  been  transferred  to  the  High  Court  of  Jus- 
tice or  to  the  Court  of  Appeal,  viz. : 

The  Receiver  Master,  the  Accountant- General  in 
Chancery — and  the  Masters  of  the  Courts  of  Com- 
mon Law — the  Clerk  of  the  Crown  and  Hanaper — 
the  Clerk  of  the  Crown  of  the  Queen's  Bench — the 
Taxincr  Masters— Secretaries — Registrars — Clerk  of 
Records  and  Writs — Examiner  in  the  Court  of  Chan- 
cery— Registrar  of  the  Consolidated  Nisi  Prius  Court 
— Clerks  of  the  Rules  and  Pleadings — Record  Assis- 
tants— Chief  and  other  Clerks — Commissioners  to 
take  oaths  or  affidavits,  or  the  acknowledgment  of 
deeds  b}^  married  women — Stamp  Distributors — 
Messengers — Court  and  Office-keepers — Hall  por- 
ters (g) — Tipstaves,  Criers,  and  other  officers  and  as- 
sistants, and  also  all  registrars,  clerks,  officers,  and 
other  persons  engaged  in  the  preparation  of  com- 
missions or  writs,  or  in  the  registration  of  judgments 
or  any  other  ministerial  duties  in  aid  of  or  connected 
with  any  of  the  said  courts  ;  also  all  persons  who 
were  officers  of  or  connected  with  tlie  late  Masters 
of  the  Court  of  Chancery  or  their  offices,  (/t) 

(41.)  The  officers  so  attached  or  transferred  to  the  Rank  and: 

r^  PT     T  •       1  11         position  of j 

Court  01  Judicature,  are  to  retain  the  same  rank  and  to  officers 
hold  their  offices  by  the  same  tenure  and  upon  the  same  retained, 
terms  and  conditions,  and  receive  the  same  salaries, 
and  if  entitled  to  pensions,  are  entitled  to  the  same 
pensions  as  if  the  Act  had  not  passed.     And  any 

(/;  J.  A.,  1877,  s.  80.  {g)  Sic.  (^A)  J.  A.,  1877,  s.  72,  SI. 


06  OFFICERS:    HOW  ATTACHED. 

The  officer  who  is  removable  by  the  court  to  which  he 

Supreme  .  i       i         -ii  i 

Court.  was  lormerly  attached,  will  henceforth  be  removable 
by  the  court  or  division  to  which  he  is  attached 
under  the  Act,  or  by  the  majority  of  the  judges 
thereof,  and  for  the  same  causes  as  heretofore,  (i) 
Specially  excluded  from  the  above  provision  are  the 
existing  third  assistant  in  the  Writ  and  Seal  Office 
and  the  existing  clerk  of  errors,  who,  as  the  Act 
prescribes  may  cease  to  be  officers  of  the  High 
Court  upon  an  order  of  the  Lord  Chancellor  to 
that  effect,  and  without  being  entitled  to  compen- 
sation, {j) 
hi^ciiancery  ('^^O  ^^^^  cxisting  registrars,  assistant  registrars, 
KeKistrars'  and  clerks  of  the  registrars  in  Chancery,  and  also 

and  Luw  ^  '' 

Courts        the  officers  of  the  three  law  courts,  so  lono;  as  they 

offices.  .  '  o  J 

continue  officers  of  the  courts,  retain  any  right  of 
succession  secured  to  them  by  Act  of  Parliament, 
so  as  to  entitle  those  who  are  thus  secured  in  their 
respective  offices,  or  in  any  substituted  offices,  to 
the  succession  to  appointments  with  duties  similar 
or  analogous  duties,  and  with  equivalent  salaries.  (/.) 
This  provision,  however,  should  be  considered  in 
connexion  with  paragraph  17  of  the  same  section, 
72,  (l)  and  paragraph  1  of  section  73.  (in) 
ofTiwrs:  (43.)    All    officers    transferred    to  the    Supreme 

attached  to  Court  of  Judicature  are  attaclied  to  the  respective 

Divisions.        ....  /•      i         tt-    i       /-i  f     x         •  i   •    i 

division  oi  the  High  Court  oi  Justice  which  cor- 
responds with  the  special  court  to  which  they  for- 
merly belonged,  viz.  : — 

oiiancry,  (^^^  •)  Qfficers  formerly  attached  to  tlie  Court  of 
Chancery,  or  any  Judge  or  Master  of  it,  are  now 
attached  to  the  Chancery  Division  of  the  High  Court. 

Landed  (cfc  1.)  Officers  of  the  Landed  Estates  Court  are 

Kstates 

Court.  now  attached  to  the  Land  Judges  of  the  Chancery 
Division. 

(0  J.  A.,  1877,  s.  72,  §  ■>.      (J)  /6.  §  3 :  see  i'>/ru  (oL').       (/,-)  S.  72,  §  4. 
(/)  Vide  i/i/'ra  {iJo).    ,  (z/t)  Vide  infra  (57). 


RE-DISTRIBUTION  OF  BUSINESS. — TRANSFERS.  G7 

(h.)  Officers  of  the  Court  of  Queen's  Bench  are  The 
attached  to  the  Queen's  Bench  Division.  court. 

(c.)  Officers  of  the  Court  of  Common  Pleas  are  Queeu^ 
attached  to  the  Common  Pleas  Division.  Bench. 

(d.)  Officers  of  the  Court  of  Exchequer  are  at- pieas. 
tached  to  the  Exchequer  Division.  Exchequer. 

(e.)  Officers  of  the  Court  of  Probate  .and  the  Court  rrobate. 
for  Matrimonial  Causes  and  Matters  are  attached  to 
the  Probate  and  Matrimonial  Division.  (71) 

(44.)  All  clerks  and  other  officers  attached  to  any  Personal 

.      .  .  .         officers  of 

existing  judge  who  becomes  a  Judge  of  the  High  Judge. 
Court  of  Justice  or  of  the  Court  of  Appeal,  will 
continue  attached  to  such  judge,  and  is  bound  to 
perform  the  same  duties  as  those  which  he  has 
hitherto  performed,  or  duties  analogous  thereto,  and 
will  have  the  same  rank  and  hold  his  office  by  the 
same  tenure  and  upon  the  same  terms  and  condi- 
tions, and  receive  the  same  salary,  and  if  entitled 
to  a  pension,  be  entitled  to  the  same  pension  as  if 
the  Act  had  not  passed.  (0) 

(45.)  The  business  to  be  performed  in  the  respec-  Re-dtstri- 
tive  Divisions  of  the  High  Court  of  Justice  is  to  be  business, 
distributed  among  the  several  officers,  &c.,  attached 
to  each,  and  the  duties  to  be  discharged  by  them, 
and  any  re-arrangement  connected  therewith  is  to  be 
regulated,  controlled,  and  directed,  by  Rules  of  the 
Court  of  Judicature,  (p)  Pending  this  re-arrangeraent 
it  is  presumed  that  where  any  duty  is  to  be  dis- 
charged under  the  Act  which  had  heretofore  been 
discharged  by  any  particular  officer,  such  officer 
shall  continue  to  be  proper  officer  to  discharge  same. 

(46.)  Where  the  services  of  any  officer  attached  to  Transfer 
any  division  is  not  required  in  the  division  to  which  "rom  '''^'^* 
he  is  attached,  the  Lord  Chancellor  may,  with  the  ^'^^^i""^- 
concurrence  of  the  other  Presidents  of  Divisions  or 

00  S.  72,  §  5.  (0)  S.  72,  §  0.  if)  S.  72,  §  7. 


CONSOLIDATION  OF  OFFICES. 


Future  con 
soliilation 
of  oUioL'S. 


two  of  them,  by  order,  transfer  such  officer  to  some 
other  office  of  the  High  Court  of  Justice,  or  some 
Division  of  it,  subject  to  the  conditions  imposed 
as  to  the  nature  of  the  duties  that  they  shall  be 
either  the  same,  or  similar,  or  analogous  to  his  former 
duties.  (7) 

(47.)  Certain  offices  are  to  be  consolidated  at 
dates  to  be  fixed  by  the  Lord  Chancellor,  with  the 
concurrence  of  the  Treasury,  but  within  two  years 
from  the  commencement  of  the  Act,  viz. : — 

(a.)  The  Taxing  Offices  of  the  Common  Law 
Courts,  and  of  the  Landed  Estates  Court  with  the 
Taxing  Office  of  the  Court  of  Chancery,  so  as  to 
have  but  one  Taxing  Office  for  the  Supreme  Court, 
and  the  several  Courts  and  Divisions  of  same. 

(6.)  The  Office  of  Accountant  in  the  Landed 
Estates  Court  with  the  Office  of  Accountant-General 
in  the  Court  of  Chancery,  so  as  to  have  but  one 
Accountant  Department  for  the  Supreme  Court  and 
all  Courts  and  Divisions  of  same. 

(c.)  The  Writ  and  Seal  Office  of  the  Law  Courts, 
with  the  Record  and  Writ  Office  in  Chancery,  so 
as  to  have  but  one  office,  out  of  which  all  writs  and 
summons  to  commence  proceedings  in  the  High 
Court  or  any  Division  thereof  may  issue,  and  in 
which  the  records  of  all  proceedings  therein  may  be 
preserved. 

(d.)  The  Notice  Office  of  the  Landed  Estates 
Court  with  the  Notice  Office  of  the  Court  of 
Clianccry.(')') 
■  (4)8.)  The  Lord  Chancellor  and  the  three  other 
Chief  Judges,  or  any  two  of  them  (the  Lord 
Chancellor  being  one),  with  the  concurrence  of  the 
Treasury,  may  by  order,  consolidate  any  other 
offices  of  the  Courts  whose  jurisdiction  is  transferred 


(;^)  J.  A.,  1877,  s.  72,  §  8. 


(r)  S.  72,  §  'J. 


ANALOGOUS  DUTIES.  69 

to  the  Supreme  Court  in  any  cases  where  the  union  me 

r^  '  n  /-^  1  Supreme 

of  existing  Courts  into  one  bupreme  Court  renders  court. 
it  no  longer  necessary  or  expedient  to  retain  such 
offices  separate,  and  the  distribution  of  business  in 
the  offices  so  united  and  consolidated,  and  the  duties 
to  be  discharged  by  the  officers  are  to  be  regulated 
and  directed  by  Rules  of  Court,  (.s) 

This  consolidation  and  regulation  of  duties  is, 
however,  subject  to  the  provisions  of  the  Act  as  to 
tenure  and  salary  of  existing  officers,  and  to  the  dis- 
charge by  them  of  analogous  duties  only.(^) 

(49.)  As  to  officers  and  persons  attached  to  the  officprs' 
Supreme  Court,  but  whose  duties  are  not  otherwise  uot  pro- 
provided  for,  they  shall  have  their  duties  defined  by  "^^^    ^^' 
the  Lord  Chancellor. (u) 

(50.)  The  re-distribution  or  change  of  business  Analogous 
amongst  officers  is  subject  to  this  limitation,  in 
favour  of  existing  officers,  that  an  existing  officer, 
whether  attached  to  the  Supreme  Court  generally 
or  to  any  Court  or  Division  of  it,  shall  not  be  re- 
quired to  discharge  any  duties  which  are  not,  either 
the  same  as,  or  similar  or  analogous  to  those  which 
he  performed  immediately  before  the  1st  day  of 
January,  1877.  And  in  case  of  question  as  to  the 
duties  proposed  to  be  imposed  upon  any  officer  being 
similar  or  analogous,  the  Lord  Chancellor  is  to  decide, 
having  regard  to  the  rank  and  position  previously 
held  by  the  officer,  (v) 

(51.)  The  Lord  Chancellor  may,  with  the  concur-  Lord 
rence  of  the  Treasury,  abolish  or  alter  the  duties  and  may  alter 
designation  of  any  officer,  whether  in  the  Lunacy  designaHou 
Department   or   attached  to  himself,  and   fix   the  oncers!'" 
salaries  of  such  of  them  as  shall  be  retained,  but  so 
as  that  no  existing  officer  holding  office  during  good 


(s)S.  72,  §10&  11.  (/)/6.  §10. 

((/)  S.  72,  §  12.  (i;)  S.  ib  §  13. 


APPEAL  COURT  OFFICERS. 

behaviour  shall  receive  a  less  salary  than  heretofore, 
or  hold  office  otherwise  than  as  he  did.  (w) 

(52.)  The  Judicature  Act,  1877,  has  not  in  terms 
assigned  or  attached  any  officers  or  clerks  for  the 
service  of  the  new  Court  of  Appeal,  although  it 
assumes  there  shall  be  some  such  officers  in  thefuture. 
Under  the  heading  "Appointment  of  future  Officers," 
section  74,  par.  10,  it  enacts  that  all  officers  assigned 
to  perform  duties  with  respect  to  the  Court  of  Appeal, 
shall  be  appointed  by  the  Lord  Chancellor,  and  par. 
1 5  of  the  same  section  enacts  that  the  authority  of 
the  Court  of  Appeal  over  any  officers  attached  to  it 
generally,  with  respect  to  any  duties  to  be  dis- 
charged by  such  officers,  may  be  exercised  by  the 
Lord  Chancellor.  It  does  not  indicate  who  or  what 
these  officers  are  to  be. 

The  Chancery  Appeal  Court  (Ireland)  Act  pro- 
vided no  special  staff  of  registrars  or  clerks  for  the 
then  newly  constituted  Court,  such  as  was  done  in 
England  by  the  addition  of  two  or  three  regis- 
trars and  a  corresponding  number  of  clerks,  but 
it  enacted  that  the  registrar,  secretary,  and  other 
officers  attached  to  the  Court  of  the  Lord  Chan- 
cellor should  attend  the  Court  of  Appeal  in 
Chancery,  in  the  same  manner  as  the  English 
Judicature  Act,  1873,  s.  77,  provides  that  all  the 
duties  with  respect  to  appeals  from  the  Court  of 
Chancery  of  the  County  Palatine  of  Lancaster, 
which  are  now  performed  by  the  Clerk  of  the 
Council,  shall  be  performed  by  "the  Registrars,  Tax- 
ing Masters,  and  other  officers  by  whom  like  duties 
are  discharged  in  the  Supreme  Court."  There  is 
nothing  similar  in  the  Judicature  Act,  1 877. 

In  England  the  service  of  the  two  branches  of  the 
New  Court  of  Appeal  is  provided  for  (j-)  by  rer|uiring 

(w)  S.  82.  (x)  Order  CO,  K.  2. 


APPEAL  COURT  OFFICERS.  71 

officers  attached  to  any  division  to  follow  the  appeals  ne 
or  rehearings  from  the  same  division,  and  to  perform  ^court"'^ 
in  the  Court  of  Appeal  analogous  duties  in  reference 
to  such  appeals  as  the  Registrars  and  officers  of  the 
Court  of  Chancery  usually  performed,  as  to  rehear- 
ings in  the  Court  of  Appeal  in  Chancery,  and  as  the 
Masters  and  officers  of  the  Queen's  Bench,  Common 
Pleas,  and  Exchequer,  respectively  performed  as  to 
appeals  heard  by  the  Court  of  Exchequer  Chamber. 
This  left  for  the  two  branches  of  the  Court  of 
Appeal,  two  out  of  the  twelve  Registrars  of  the 
Chancery  Division,  and  the  fifteen  Masters  attached 
to  the  three  Common  Law  Divisions,  in  addition  to 
the  officers  of  the  Probate  and  Admiralty  Division. 
To  these  further  have  been  added,  two  special  secre- 
taries, two  clerks  of  Court,  and  one  principal  clerk 
attached  to  the  Court  of  Appeal. 

In  Ireland,  the  Registrars  of  the  Court  of  Chan- 
cery (including  the  Registrar  hitherto  attached  to 
the  Court  of  the  Lord  Chancellor)  are  by  force  of 
section  72,  par.  5,  attached  to  the  Chancery  Division 
of  the  High  Court  of  Justice,  and  although  they 
may  be  transferred  to  another  division  there  seems 
no  power  of  direct  transfer  to  the  Court  of  Appeal.  (3/) 
The  Clerk  of  Errors  is  to  cease  to  be  an  officer  of 
the  High  Court  on  an  order  of  the  Lord  Chancellor 
to  that  effect,  (2)  but  this,  i.e.  the  High  Court,  it 
may  be  observed  is  a  Court  to  which  the  Clerk 
of  Errors  does  not  belong,  either  by  attachment, 
transfer,  or  the  nature  of  his  former  duties,  he  being 
simply  transferred  to  the  Supreme  Court  of  Judica- 
ture by  force  of  section  72,  par.  1,  and  having  no 
relations  with  or  duties  to  discharge  in  the  High 
Court  of  Justice ;  so  that  it  is  difficult  to  see  how 
he  can  cease  to  belong  to  it.     As  regards  the  official 

(jj')  Vide  ante.  (46),  at  p.  57.     (2)  Vide  ante  (41),  at  p.  66. 


/  li  EETIREMENT  OF  OFFICERS. 

^''^  attendance,   preparation,   and   issue   of  its   orders, 

Supreme  •>        r^  ^  i    .        .  . 

Court  the  Court  of  Appeal  in  its  singularly  multifarious 
jurisdiction,  of  law  and  equity.  Landed  Estates 
Court,  probate  and  matrimonial,  and  admiralty,  and 
criminal  cases,  land  cases  reserved,  and  reo-istration 
of  voters,  no  provision  seems  to  be  made,  for  the  im- 
mediate service  of  the  Court,  nor,  as  matters  stand  at 
present,  does  any  seem  available  beyond  the  possible 
escape  from  threatened  extinction  of  the  Clerk  of 
Errors,  and  the  Registrar  formerly  attached  to  the 
Court  of  the  Lord  Chancellor  who  of  course  can 
follow  the  Chancery  appeals. 

Ketirement  (53.)  In  casc  it  should  apjDcar  to  the  Lord  Chan- 
cellor that  by  reason  of  the  consolidation  or  abolition 
of  officers  under  the  Act,  the  continuance  of  the 
services  of  any  officer  holding  during  good  behaviour, 
or  during  good  behaviour  subject  to  removal  for 
cause  by  some  Court  or  Judge,  is  unnecessary,  the 
Lord  Chancellor  may,  with  the  concurrence  of  the 
Treasury,  make  arrangements  for  the  release  of  such 
officer  from  his  duties,  and  thereupon  the  Treasury 
may  award  to  such  officer  such  compensation  as 
having  regard  to  his  period  of  service,  to  the  tenure 
of  the  office  held  by  him,  the  Treasury  consider  just 
and  reasonable,  subject  to  the  limitation  following — 
That  if  the  officer  has  served  for  a  period  not  ex- 
ceeding fifteen  years  the  annual  amount  of  compen- 
sation to  be  awarded  shall  not  be  more  than  one-half 
of  tlie  salary  and  emoluments  of  the  office  held  by 
him. 

For  each  year  of  completed  service  exceeding 
fifteen  years  there  may  be  awarded  in  addition  to 
the  oue-half,  one-thirtieth  part  of  the  salary  and 
emoluments  of  the  office,  but  in  no  case  can  the  sum 
exceed  thrce-fourtli  parts  of  the  salary  and  emolu- 
ments of  the  office. 

If  the  officer  retiiing  has,  by  statute,  any  right  of 


CONSENT  OF   OFFICER — REORGANIZATION.  73 

succession  to  a  position  of  higher  rank  and  emolu-  The 
ment,  the  Lord  Chancellor,  with  the  concurrence  of  cwT^ 
the  Treasury,  may  award  to  the  officer  in  addition 
to  the  ordinary  compensation  specified  above,  such 
further  compensation  in  respect  of  such  rights  of 
succession,  as  having  regard  to  the  circumstances  of 
the  case  and  to  the  amount  awarded  as  ordinary 
compensation,  may  appear  just  and  reasonable,  (r) 
In  certain  cases  the  Treasury  are  bound  to  state 
their  reasons  for  granting  a  special  compensation, 
and  to  submit  a  copy  of  same  to  Parliament,  (s) 

(54.)  No  officer  appointed  before  the  passing  of  consent  of 
the  Judicature  Act,  and  holding  during  good  be-  officers" 
haviour,    or    during    good   behaviour     subject    to 
removal  for  cause,  can  be  discharged  or  released 
without  his  consent,  merely  because  the  continuance 
of  his  services  may  have  become  unnecessary,  {t) 

(55.)  Any  existing  officer  whose  emoluments  or  Compensa- 

.    t  ,  c-  i.  •  •  ^'o*!  fo""  loss 

statutory   rights    oi    promotion   or    succession    are  ofemoiu- 
atfected  by  the  Act  may  prefer  a  claim  to  the  Trea-  J^^Ht^  "J^ 
sury,  and  the  Treasury,  if  it  considers  the  claim  to  be  o^'eS^n"' 
established,  may  award  to  such  officer  such  sum  officers, 
either  by  way  of  compensation  or  as  an  addition  to 
his  salary  as  it  thinks  just,  having  regard  to  the 
tenure  of  office  by  such  officer,  and  to  the  other 
circumstances  of  the  case,  (u) 

(56.)  The  Lord  Chancellor  is  empowered,  with  increase  of 

1  /.    1       m  ,        •  i  1  1  salary  with 

the  consent  of  the  Treasury,  to  increase  the  salary  duty, 
of  any  officer  who  is  attached  to  the  Supreme  Court, 
or  any  court,  division,  or  judge  thereof,  and  whose 
duties  are  increased  by  reason  of  the  passing  of  the 
Judicature  Act.  (v) 

(57.)  Within  two  years  from  the  commencement  proximate 
of  the  Act,  i.e.,  before  1st  January,  1880,  the  Lord  XT''"" 
Chancellor  and  the  three  Chief  Judges,  or  any  two  °'^"*^  ^^^^■ 

{r)  J.  A.,  1877,  9.  72,  §  15.         (s)  lb.  §  IC.         («)  S.  72,  §  Vo. 
(«)  S.  72,  §  17.  (r)  S.  72,  §  U. 

E 


7-t 


FUTURE  VACANCIES — PATRONAGE. 


The 

Supreme 

Court. 


Future 
vacancies ; 
appoint- 
ments 
suspended. 


Pifrhts  of 
patronage : 
licnv  Car 
jireserved. 


of  them  (the  Lord  Chancellor  being  one),  are,  with 
the  concurrence  of  the  Treasury,  to  determine  what 
officers,  clerks,  or  other  persons  holding  subordinate 
positions  requisite  for  the  permanent  organization 
of  the  official  staff  of  the  Supreme  Court  and  every 
court  or  division  thereof,  shall  be  retained  or  em- 
ployed, and  may  abolish  any  unnecessary  office,  or 
reduce,  or  in  case  of  additional  duties,  increase  the 
salary  of  an  office,  or  alter  the  designation  or  duties 
thereof,  notwithstanding  that  the  patronage  thereof 
may  be  vested  in  an  existing  judge,  {tu)  This  power 
is  subject  to  the  rights  of  now  existing  officers  as 
secured  by  the  foregoing  provision,  and  also  to  the 
right  to  compensation  to  be  given  to  any  junior 
officer  for  any  loss  of  succession  to  any  office  abo- 
lished, and  in  which  he  had  a  direct  or  qualified 
right  of  succession  secured  by  the  Act,  sach  com- 
pensation to  be  measured  by  the  Lord  Chancellor 
with  the  concurrence  of  the  Treasury,  {w) 

(58.)  When  any  vacancy  has  occurred,  or  shall 
occur  in  any  office  after  the  14th  of  August,  1877, 
(the  passing  of  the  Act),  no  appointment  can  be 
made  thereto  for  the  period  of  one  month  without 
the  assent  of  the  Lord  Chancellor  given  with  the 
concurrence  of  the  Treasury. 

And  the  Lord  Chance]  lor  may,  with  the  concurrence 
of  the  Treasury,  suspend  the  making  of  the  appoint- 
ment to  the  office  for  any  period  not  later  than  the 
1st  day  of  December,  1879.  He  may,  if  it  be  ne- 
cessary, with  the  like  concurrence,  make  provi- 
sion in  such  manner  as  he  thinks  fit  for  the  tem- 
porary discharge  in  the  meantime  of  the  duties  of 
the  office,  {x) 

(59.)  All  rights  of  patronage  are  expressed  to  be 
preserved  to  existing  judges,  (_y),  but  this  is  after- 


(jf)  J.  A.,  1877,  3.  73,  §  1.        (x)  S.  73,  §  2. 


(^)  See  s.  15. 


EIGHTS  OF  PATRONAGE — OPEN  COMPETITION.  75 

wards  apparent!}''  made  subject  to  the  power  of  sus-  The 
pension  of  any  office  vacated  between  the  passing  of  court!^ 
the  Act  and  the  1st  December,  1879.  (0)  Future 
vacancies  in  offices  not  abolished  are  to  be  filled  up 
in  manner  prescribed  by  the  Act,  (a)  but  subject  to 
any  existing  qualification  required  for  appointments 
to  the  particular  office,  (h)  But  all  statutory  powers 
enabling  any  officer  to  appoint  to  any  office  or  to 
employ  any  persons  in  duties  appertaining  to  any 
office,  are  summarily  repealed,  and  the  right  of 
appointing  to  such  offices,  if  continued  is  vested 
in  the  President  of  the  Division  in  case  of  offices 
attached  to  divisions,  and  in  other  cases  in  the 
Lord  Chancellor,  but  no  vacancy  is  to  be  filled  up 
without  the  concurrence  of  the  Treasury,  (c) 

Certain  rights  of  appointment  vested  in  the  Dis- 
trict Registrars  of  the  Court  of  Probate  are  excepted 
from  this  enactment,  whilst  the  appointments  be- 
longing to  the  Registi-ars  of  the  Court  of  Chancery 
are  taken  from  them,  {d)  These  provisions  have,  as 
might  be  expected,  no  counterpart  in  the  English 
Judicature  Act. 

(60.)  All  junior  clerkships  in  the  High  Court  of  junior 
Justice  are  to  be  filled  up  by   open  competition  ;  byVpen^* 
but  this  provision  does  not  apply  to  any  person  t^^™'"^"" 
holding  any  office  or  clerkship  at   the  time  of  the 
passing  of  the  Act.  (e)     The  Lord  Chancellor,  with 
the  concurrence  of  the  Civil  Service  Commissioners, 
is  required  to  make  regulations  as  to  the  qualifi- 
cations of  candidates  and  the  subjects  of  exami- 
nation. (/) 

It  would  seem  that  this  provision  does  not  over- 
ride the  right  of  patronage  expressed  to  be  pre- 
served to  existing  judges. 

(61.)  All  officers  attached  to  the  High  Court  of  Divisional 

■ officers, 

{z)  S.  73,  §  2.  (a)  S.  73,  §  3.  Q>)  S.  73,  §  13.  Chancery, 

(c)  S.  73,  §  12.  ((T)  lb.  (e)  S.  73,  §  4.  (/)  lb.  §  5. 

E  2 


DIVISIONAL   OFFICERS — REMOVAL   OF   OFFICERS. 


Other 

dh  isional 
oHictTS. 


The.  Justice,  or  the  Chancery  Division  of  it,  who  have 

C'oMr<.  been  heretofore  appointed  by  the  Master  of  the  Rolls 
or  Vice-Chancellor,  save  those  to  be  appointed  by 
public  competition,  continue,  while  so  attached,  to 
be  appointed  by  the  Master  of  the  Rolls  and  Vice- 
Chancellor,  and  their  successors  respectively  in  the 
same  manner  and  on  the  same  conditions  and 
occasions  as  heretofore,  {g)  All  officers  of  the  Chan- 
cery Division  attached  to  the  land  judges  heretofore 
appointed  by  such  judges,  or  who,  under  the  pro- 
visions of  the  Act,  are  attached  to  the  land  judges, 
save  those  to  be  appointed  l>y  competition,  are  to  be 
appointed  by  them  with  such  approval  as  hereto- 
fore, (/t) 

(62.)  The  appointment  of  all  officers  attached  to 
any  division  of  the  High  Court  other  than  those  of 
the  Chancery  Division  heretofore  appointed  by  the 
Master  of  the  Rolls,  or  the  Vice-Chancellor,  or  the 
land  judges,  belongs  to  the  President  of  the  Division 
(subject  to  the  provisions  as  to  open  competition). 

But  officers  who  have  been  heretofore  appointed 
by  the  Lord  Lieutenant  cannot  hereafter  be  ap- 
pointed without  his  approval,  (i) 

(G3.)  All  officers  attached  to  any  judge  are  to 
be  appointed  by  the  judge  to  whom  they  are 
attached,  {j). 

(64.)  The  appointment  of  all  officers  assigned  to 
perform  duties  with  respect  to  the  Court  of  Judi- 
cature generally,  or  attached  to  the  High  Court  of 
chauccUor.  Justice  generally,  or  to  the  Court  of  Appeal,  and 
all  Commissioners  to  take  oath  or  affidavits  in  the 
Supreme  Court  of  Judicature,  belongs  to  the  Lord 
Chancellor.  {Ic) 

(65.)  Any  officer  of  the  Supreme  Court  of  Judi- 
cature, or  of  the  Court  of  Appeal,  or  of  the  High 


Personal 

OlfiCLTS. 


Appoint- 
ments nf 
general 
otiicers  liy 
Lord 


llemoval  of 
otlictrs. 


(^)  J.  A.,  1877,  s.  73,  §  r,. 


(,h)  S.  73.  §  7.        (0  S.  73,  §  11. 
{k)  S.  73,  §  10. 


AUTHORITY  OVER  OFFICERS — SALARIES — PENSIONS.  77 

Court,  or  of  any  division  or  judge  other  than  such  The 
officers  attached  to  the  person  of  a  judge  who  may  'court. 
be  removed  by  him  at  his  pleasure,  is  subject  to 
be  removed  by  the  person  having  the  right  of 
appointment  to  the  office  held  by  him,  with  the 
approval  of  the  Lord  Chancellor,  and  for  reasons  to 
be  assigned  in  the  order  of  removal.  {I)  Existing 
officers  transferred  to  the  Court  of  Judicature  hold 
their  offices  by  the  same  tenure  and  upon  the  same 
terms  and  conditions  as  if  the  Act  had  not  passed,  (in) 

(60.)  The  authority  of  the    Supreme    Court  of  Authority 
Judicature,  and  of  the  Court  of  Appeal,  and  of  the  otscers. 
High  Court  of  Justice,  over  all  or  any  of  the  officers  cised. 
attached  to  such  courts,  or  any  of  them  generally 
with  respect  to  any  duties  to  be  discharged  by  such 
officers  respectively,  may  be  exercised  by  the  Lord 
Chancellor,  {n) 

As  to  officers  attached  to  any  division  of  the 
High  Court,  the  authority  with  respect  to  any 
duties  to  be  discharged  by  them  respectively  may 
be  exercised  by  the  President  of  the  Division,  (n) 

(67.)  Every  salaried  officer  hereafter  appointed  in  salary  of 
pursuance  of  the  Act  is  to  be  paid  such  salary  out  api)ointed 
of  moneys  provided  by  Parliament  as  shall  be  deter-  ^^^^'^  ^'^^' 
mined  by  the  Treasury  with  the  concurrence  of  the 
Lord  Chancellor,  (o) 

(68.)  Every  officer  to  be  appointed  in  pursuance  officers 
of  the  Act  (other  than  an  officer  attached  to  the  per-  pensious!"' 
son  of  a  Judge),  whose  whole  time  shall  be  devoted 
to  the  duties  of  his  office,  is  to  be  deemed  to  be 
employed  in  the  permanent  Civil  Service  of  Her 
Majesty,  and  becomes  entitled  to  a  pension  or  com- 
pensation in  the  same  manner  and  upon  the  same 
terms  and  conditions  as  the  other  permanent  civil 
servants  of  Her  Majesty  are  entitled  to  pension  or 

(I)  S.  73,  §  U.  (to)  S.  72,  §  2.  (ji)  S.  73,  §  15. 

(o)  S.  76. 


78 


SOLICITORS — APPRENTICES — COMMISSIONERS. 


The 

Supreme 

Court. 

rersoual 
officers  not 
entitled  to 
pension. 

Solicitors, 
Attorneys, 
and  Proc- 
tors to  be 
called 
Solicitors 
of  Court  of 
Judicature. 


Jurisdic- 
tion over. 


Appren- 
tices, &c. 


Commis- 
sioner to 
adniiuistcr 
outlis. 


compensation.  {iJ)  But  no  officer  attached  to  the 
person  of  a  Judge  will  be  entitled  to  any  pension  or 
compensation  in  respect  of  his  retirement  from  or 
the  abolition  of  his  office,  except  so  far  as  he  may 
be  entitled  to  it  independently  of  the  Act.  {q) 

(G9.)  All  persons  admitted  as  solicitors,  attorneys, 
or  proctors  of,  or  by  law  empowered  to  practise  in 
any  Court  whose  jurisdiction  is  transferred,  are  to 
be  called  solicitors  of  the  Court  of  Judicature,  and 
are  entitled  to  the  same  privileges  and  are  subject 
to  the  same  obligations,  so  far  as  circumstances  will 
permit,  as  if  the  Act  had  not  passed.  (■>*) 

(70.)  They  are  to  be  deemed  officers  of  the  Court 
of  Judicature,  and  that  Court  as  well  as  the  High 
Court  of  Justice,  and  the  Court  of  Appeal,  or  any 
division  or  Judge  of  the  same,  may  exercise  the 
same  jurisdiction  in  respect  of  such  solicitors  or  attor- 
neys, as  any  one  of  Her  Majesty's  Superior  Courts 
of  Law  or  Equity  might,  previously  to  the  yjassing 
of  the  Act,  have  exercised  in  respect  of  any  solicitor 
or  attorney  admitted  to  practise  therein,  (s) 

(71.)  All  persons  who,  from  time  to  time,  if  the 
Act  had  not  passed,  would  have  been  entitled  to  be 
admitted  as  solicitors,  attorneys,  or  proctors  of,  or 
been  empowered  to  practise  in  any  of  the  Courts 
transferred,  will  be  entitled  to  be  admitted  and 
called  solicitors  of  the  Court  of  Judicature,  and  so 
far  as  circumstances  will  permit,  will  be  entitled,  as 
such  solicitors,  to  the  same  privileges  and  be  subject 
to  the  same  obligations,  as  if  the  Act  had  not 
passed,  {t) 

(72.)  Every  person  who,  at  the  commencement  of 
the  Act,  was  authorized  to  administer  oaths  in  any 
of  the  Courts  whose  jurisdiction  is  transferred  to  the 
High  Court  of  Justice,  has  become  a  commissioner 

ip)  J.  A.,  1.S77,  s.  7G.       \q)  lb.       {r)  S.  78,  §  1.       (s)  lb.  §  2. 
(0  S.  78,  §  1. 


;     COMMISSIONERS   TO   ADMINISTER  OATHS.       .  79 

to  administer  oaths  in  all  causes  and  matters  what-  The 

,   .    ,  r,  .  ,1-  v       J  T  Supreme 

soever  which  may,  irom  time  to  time,  be  depeiiding  court. 
in  the  High  Court  or  in  the  Court  of  Appeal,  (w) 

(73.)  Every  Commissioner  of  the  Supreme  Court  without 
of  Judicature,  if, a  solicitor,  is  authorized  by  the  piace.*^ 
statute  to  exercise  his  functions  as  such  Commis- 
sioner in  any  part  of  Ireland,  without  regard  to  any 
limit  of  place  specified  in  his  commission,  {v) 

(74.)  All  answers,  disclaimers,  examinations  and  Answers 
afiidavits,  in  causes  and  matters  depending  in  any  davits  now 
of  the  Courts  whose  jurisdiction  is  transferred  to  ^ithL 
the  Supreme  Court,  or  in  the  High  Court  of  Justice  ^^minioas 
or  Court  of  Appeal,  may  be  sworn  and  taken  in 
England  or  Scotland,  or  the  Isle  of  Man,  or  the 
Channel  Islands,  or  in  any  colony,  island,  plantation, 
or  place,  under  the  dominion  of  Her  Majesty  in 
foreign   parts,   before    any    Judge,    Court,    Notary 
Public,  or  person  lawfully  authorized  to  administer 
oaths  in  such  country,  colony,  island,  plantation,  or 
place,  respectively. 

Also  before  any  of  Her  Majesty's  consuls  or  vice-  in  foreign 
consuls  in  any  foreign  parts  out  of  Her  Majesty's  ^^'^*' 
dominions. 

The  Judgesand otheroflBcersoftheseveral divisions  judicial 
of  the  High  Court  or  Court  of  Appeal,  are  required  "^"'"^^  "^" 
to  take  judicial  notice  of  the  seal  or  signature,  as 
the  case  may  be,  of  any  such  Court,  Judge,  notary 
public,  person,  consul  or  vice-consul,  attached,  ap- 
pended, or  subscribed  to  any  such  document,  (w) 

(75.)  So,  in  like  manner,  all  acknowledgments  re-  Acknow- 
quired  for  the  purpose  of  enrolling  any  deed  in  any  of  of  deeds  for 
the  Courts  transferred  to  the  High  Court,  or  affidavits  and*'*"^"' 
to  memorials  for  the  purpose  of  registering  deeds  in  ""^^^istry. 
Ireland,  may  be  sworn  and  taken  by  the- like  class 
of  officials  in  places  within  Her  Majesty's  dominions, 
and  in  foreign  parts  ;  and  the   registrar  and  other 

Cm)  S.  74.  {v)  lb.  {w)  lb. 


80 


RECEIVER-MASTER   AND   HIS   OFFICERS. 


The 

Supreme 

Court. 


Receiver- 
Master. 


Officers  in 
]{eceivt  r- 
Master's 
oHice. 


officers  of  the  office  for  the  Registry  of  Deeds  in 
Ireland,  are  in  like  manner  required  to  take  judicial 
notice  of  the  seal  or  signature  of  the  Court  or 
officer,  (x) 

(76.)  To  the  Receiver-Master  of  the  Court  of 
Chancery  no  successor  is  to  be  appointed,  and  the 
Lord  Lieutenant,  with  the  consent  of  the  Lord 
Chancellor,  may  release  the  existing  Receiver- 
Master  from  the  further  discharge  of  his  duties  as 
the  Lord  Chancellor  was  empowered  to  do  by  the 
Chancery  (Ireland)  Act,  1867.  {y)  The  Lord  Lieu- 
tenant, with  the  consent  of  the  Lord  Chancellor, 
may,  if  he  think  fit,  release  the  Receiver-Master 
immediately  after  the  passing  of  the  Act  and  before 
its  commencement,  {z)  As  to  the  transfer  of  the 
duties  hitherto  discharged  by  the  Receiver-Master 
as  a  Master  in  Lunacy,  see  chap,  xii, ;  as  a  Master 
in  Chancery,  see  chap.  x.  ;  as  Receiver-Master  gene- 
rally, see  chap.  xiv. 

(77.)  All  officers  connected  with  the  office  of 
the  Receiver-Master  are  to  be  transferred  and 
attached  to  the  Land  Judges,  and  the  officers  so 
transferred  are  to  be  emploj'ed  in  duties  similar 
or  analogous  to  those  which  they  discharged  at  the 
time  of  the  passing  of  the  Act ;  and  they  are  en- 
titled to  hold  their  offices  by  the  same  tenure  and 
upon  the  same  terms  and  conditions,  and  receive 
the  same  salaries,  and  if  entitled  to  pensions  are 
entitled  to  the  same  pensions  and  chargeable  upon 
and  payable  out  of  the  same  funds  as  if  the  Judica- 
ture Act  had  not  passed,  {a)  They  may  also  be 
transferred  to  the  Local  Government  Board  or  any 
other  substituted  authority,  under  similar  condi- 
tions and  subject  to  such  control  as  the  Lord 
Lieutenant  in  Council  may  prescribe;  (6)  and  they 


{x)  J.  A.,  1877,  8.  74. 
(«)  S.  75,  §  0. 


(y)S.  75,  §1.         (c)S.75,§U. 
{h)  lb.  §  10. 


LAND   OFFICERS.  81 

are  subiecfc  likewise  to  the  provisions  as  to   the  The 

.        .  -,  ,       r.     A2  /  x     Supreme 

re-organization  and  new  arrangement  oi  omces.  \c)    court. 

(78.)  The  Lord  Lieutenant  in  Council  may,  by  officers  of 
order,  require  any   of    the    officers    transferred  or  j„"ggg  ^^ 
attached  to  the  Land  Judges  to  give  assistance  by  oJ^'^ru-''*''** 
the  discharge  of  duties  similar  or  analogous  to  those  '"ent^ 
which  they  discharged  at  the  time  of  the  passing  of 
the  Act,  to  the  Local  Government  Board  or  other 
substituted  authority  in  like  manner  as  is  provided 
in  respect  to  the  officers  of  the  Receiver-Master,  {d) 


CHAPTER  IL 
High  Court  of  Justice  and  its  Judges. 

79.  First  Judges  of,  81. 

80.  Permanent  number  of,  82. 

81.  Style  and  authority  of,  82. 

82.  Rights  and  obligations  of  existing  Judges,  83. 

83.  Office  of  Lord  Chancellor,  83. 

84.  Chief  Judges,  85. 

85.  Theother  Judges,  85. 

86.  Qualification  of  Judges,  8G. 

87.  Tenure  of  Ofiice,  86. 

88.  Incapacities,  86. 

89.  Precedence,  86. 

90.  Salaries  and  Pensions,  8G. 

91.  Resignations,  86. 

92.  Judges  of  Appeal  may  act  as  Judges  of  High  Court,  87. 


(79  )  Her  Maiesty  s  High  Court  of  Justice  is  con-  m^h  Court 

\  ^  ,,  T        7.       ,      T      1  ±^        T        J   0/ Justice. 

stituted  as  follows  :— Its  hrst  Judges  are  the  Lord       

Chancellor,  the  Lord  Chief  Justice  (of  Ireland),  the  judges  of. 
Master  of  the  Rolls,  the  Lord  Chief  Justice  of  the 
Common  Pleas,  the  Lord  Chief  Baron  of  the  Exche- 
quer, the  Vice-Chancellor,  the  three  Puisne  Justices 
of  the  Court  of  Queen's  Bench  and  the  two  of  the 
Common  Pleas  respectively,  the  three  Junior  Barons 
of  the  Court  of  Exchequer,  the  Judge  of  the  Court 
of  Probate  and  of  the  Court  for  Matrimonial  Causes 

(c)  lb.  §  11.  id)  S.  75,  §  10. 

E  3 


82  JUDGES — PERMANENT  NUMBER — STYLE. 

wgh  Court  and  Matters,  and  the  two  Judges  of  the  Landed 
— '  Estates  Court,  except  such,  if  any,  of  the  Judges 
named  as  may  be  appointed  an  ordinpry  Judge  of 
the  Court  of  Appeal. (a)  The  Lord  Chancellor  (or  in 
his  absence  the  Lord  Chief  Justice)  is  President  of 
the  High  Court  of  Justice,  {ad) 

Permanent  (80.)  The  vacancy  already  existing  in  the  Court 
of  Common  Pleas,  and  any  vacancy  in  the  office  of 
a  Junior  Baron  of  the  Exchequer,  when  first  such 
vacancy  may  occur,  are  not  to  be  filled  up,  (6)  and 
the  first  vacancy  which  may  happen  in  the  ofiice  of 
a  Judge  of  the  Landed  Estates  Court  is  not  to  be 
filled  up  for  forty  days  after  a  Royal  Commission 
shall  have  made  its  report  as  to  whether  the  busi- 
ness in  connexion  with  the  Chancery  Division  of 
the  High  Court  makes  it  requisite  that  an  appoint- 
ment should  be  made,  (c)  When  the  existing 
Judge  of  the  High  Court  of  Admiralty  shall  vacate 
his  office  no  person  is  to  be  appointed  to  succeed 
him  in  that  office,  but  thereupon  the  High  Court 
of  Admiralty  shall  be  united  and  consolidated  with 
the  Supreme  Court  of  Judicature  in  Ireland,  {d). 

Thus  the  number  of  the  Judges  of  the  High  Court, 
including  the  Lord  Chancelloi',  at  the  passing  of  the 
Act  was  seventeen.  This  number  is  to  be  reduced  by 
one  {i.e.  to  sixteen),  on  occasion  of  the  first  vacancy 
occurring  in  the  office  of  a  Junior  Baron  of  the  Ex- 
chequer, (e)  and  is  subject  to  bofuiiher  reduced  {i.e. 
to  fifteen)  on  the  report  of  a  Royal  Commission 
affecting  the  ofiice  of  land  judge  in  the  Chancery 
Division  upon  the  first  vacancy.  (/) 

style  and        (81.)  All  the  Judgcs  of  the  Supreme  Court  are  to 

orjudl'(>s.  be  addressed  in  the  manner  which  was  customary 
in  addressing  the  Judges  of  tlie  Superior  Courts  of 


(a)  J.  A.  1877,  s.  0,  §  1.     (aa)Ib.%S.     (i)  S.  G,  §  5.     (c)  S.  C,  §  G 

OO  s.  9,  §  a.         (0  s.  G,  §  5.         (y)  ib.  §  g. 


JUDGES — RIGHTS   AND  OBLIGATIOXS.  83 

Common   Law   in  Ireland.  ( g)     They  have  in  all  mnh  court 
respects  (save  as  in  the  Act  otherwise  expressly  pro-      — ^~' 
vided)  equal  power,  authority,  and  jurisdiction,  {h) 

(82.)  Every  existing  judge  (that  is  existing  at  the  Rights  and 
time  appointed  for  the  commencement  of  the  Act)  of  existing 
who  has  been  by  the  Act  made  a  Judge  of  the  Higli  sa^ed!* 
Court  of  Justice,  or  an  Ordinary  Judge  of  the  Court 
of  Appeal,  remains  in  the  same  condition  as  to 
tenure  of  office,  rank,  between  himself  and  the  other 
existing  judges,  title,  patronage,  {i)  and  powers  of 
appointment  and  dismissal,  and  all  other  privileges 
and  disqualifications,  and  also  as  to  salaiy  and  pen- 
sion (save  as  hereafter  mentioned)  as  if  the  Act  had 
not  passed,  and  subject  to  the  change  effected  in  his 
jurisdiction  and  duties  by  or  in  pursuance  of  the 
Act,  is  capable  of  performing  and  liable  to  perform 
all  duties  which  he  would  have  been  capable  of  per- 
forming or  liable  to  perform  in  pursuance  of  any 
Act  of  Parliament,  law,  or  custom  if  the  Act  had  not 
passed.  (/)  But  no  judge  appointed  before  the  1st 
day  of  January,  1875,  except  a  land  judge,  {k)  can 
be  required  without  his  own  consent  to  act  under 
any  Commission  of  Assize,  Nisi  Prius,  Oyer  and  Ter- 
miner or  Gaol  Delivery,  or  for  the  trial  of  crimes  and 
ofi'ences,  unless  he  was  so  liable  by  usage  or  custom  at 
the  time  of  the  passing  of  the  Act;  {k)  but  every  judge 
appointed  after  the  said  date,  {k)  whether  of  the 
High  Court  or  Court  of  Appeal,  is  capable  and  bound 
to.act  on  such  a  commission  if  named  in  it.  (Z) 

(83.)  The  Lord  Chancellor  is  to  be  appointed  and  Office  of 
to  hold  his  office  in  the  same  manner  as  heretofore,  ceiior. 
i.e.  by  Her  Majesty's   Letters  Patent,  (m)  and  with 
the  same  rank,  salary,  and  pension  attached  to  the 


{g)  S.  6,  §  7.     Query  has  the  title  "  His  Houor,"  usually  addresse.l 
to  the  Master  of  the  Rolls,  become  obsolete  ? 

(A)  S.  6,  §  7.  (0   Vide  ante  (59),  p.  74.  (/)  S.  15,  §.  1. 

{k)  Sic  in  Act.  (l)  S.  15,  §  2,         (m)  S.  G,  §  2. 


84  LORD   CHANCELLOR — JUDICLA.L   FUNCTIONS. 

High  Court  office   Rs   heretofore;  {n)   and    the    officers   in  the 

of  Justice.      -,-  __ 

—      Lunacy    Department,   and  the   ofncers    personally 

attached  to  or  connected  with  the  Lord  Chancellor, 

continue  attached  to  him  in  the  same  manner  as 

heretofore,  (o) 

Judicial  The  Lord  Chancellor  is,  when  present,  President 

1  unctions  _  ^  ' 

oi.  of  the  High  Court  of  Justice,  {p)  and  also  of  the 

Court  of  Appeal,  {q)  as  well  as  President  of  the 
Chancery  Division,  (r)  But  except  in  matters 
specially  reserved  to  the  Lord  Chancellor  himself 
by  the  Judicature  Act,  or  some  other  Act,  he  is 
not  bound  or  required  to  exercise  any  of  the  func- 
tions of  a  Judge  of  the  High  Court  or  of  the  Chancery 
Division  of  the  same,  unless  he  shall  by  special  order, 
direct  that  any  matter  shall  be  disposed  of  by  him- 
self; but  all  such  matters  shall  be  disposed  of  by 
one  of  the  other  judges  of  the  Chancery  Division, 
and  the  Lord  Chancellor  is  in  relation  to  such 
matters  to  exercise  only  the  functions  of  a  Judge  of 
the  Court  of  Appeal,  (s) 

This  restores  the  Lord  Chancellor  to  his  natural 
and  historic  position  as  head  of  his  own  court,  from 
which  he  was  displaced  by  the  first  of  the  General 
Orders  of  the  Court  of  Chancery,  1867,  in  effect  re- 
ducing him  to  the  position  of  a  judge  of  first 
instance,  co-ordinate  in  rank  and  distribution  of 
business  with  the  other  judges  of  his  court. 

Lords  coTT.  When  the  Great  Seal  of  Ireland  is  in  commission 
the  Lords  Commissioners  represent  the  Lord  Chan- 
cellor for  all  the  purposes  of  the  Judicature  Act, 
save  as  to  the  presidency  of  the  Court  of  Appeal, 
and  the  appointment  and  approval  of  officers,  or  the 
sanction  of  any  order  for  the  removal  of  officers,  or 
any  other  act  to  which  the  concurrence  or  presence 

(/<)  J.  A.,  1877,  a.  82.       {o)  lb.     (p)  S.  G,  §  8.         (q)  S.  10,  §  5. 
(r)  S.  34,  §  1.  is)  S.  10,  §  5. 


iiussioners. 


CHIEF   AND   OTHER   JUDGES.  8o 

of  the  Lord  Chancellor  is  made  necessary  by  the  nigh  court 

Act,  in  all  which  cases  the  powers  given  to  the  Lord       ' 

Chancellor  may  be  exercised  by  the  senior  Lord 
Commissioner  for  the  time  being,  (t) 

(84.)  When  any  future  vacancy  occurs  in  the  chief 
office  of  Lord  Chief  Justice,  Master  of  the  Rolls, 
Lord  Chief  Justice  of  the  Common  Pleas,  or  Lord 
Chief  Baron,  a  new  judge  may  be  appointed  to  till 
the  vacancy  in  the  office  by  Her  Majesty  by  Letters 
Patent,  and  the  person  so  appointed  shall  have  the 
same  precedence,  and  be  appointed  by  the  same  title 
and  in  the  same  manner  as  heretofore,  (it) 

(85.)  Whenever  the  office  of  a  judge  (other  than  The  other 
the  Lord  Chancellor  and  the  Chief  Judges  men-  "  ^^^' 
tioned  above,  (84),  or  the  office  of  a  land  judge,  or 
Judge  of  the  Court  of  Exchequer,  mentioned  in 
(80),  shall  become  vacant,  a  new  judge  may  be 
appointed  thereto  by  Her  Majesty's  Letters  Patent,  {v) 
The  judge  appointed  to  till  the  vacant  place  is  to  be 
styled  in  his  appointment  Judge  of  Her  Majesty's 
High  Court  of  Justice  in  Ireland(  w)  generally  and  not 
of  any  particular  division,  so  that  the  ancient  desig- 
nation of  Judges  of  the  Queen's  Bench  or  Common 
Pleas  or  of  the  Barons  of  the  Exchequer  will  in  course 
of  time  be  disused,  as  occurred  recently  in  the 
appointment  of  Mr.  Justice  Hawkins,  to  fill  the 
office  vacated  by  a  Baron  of  the  Exchequer  in 
England.  Still  on  such  an  appointment  the  new 
judge  becomes  ipso  facto  a  member  of  the  division 
to  which  the  judge  whose  place  has  become  vacant 
belonged,  (x) 

Any  vacancy  occurring  in  the  office  of  Judge  of 
any  Court  whose  jurisdiction  is  transferred — unless 
such  is  under  suspension  as  stated  in  (80) — may 
be  supplied  by  the  appointment  of  a  new  Judge  in 

(0  S.  83.  (m)  S.  6,  §  4  {v)  S.  6,  §  3. 

(w)  S.  6,  §  4.  (x)  S.  34,  §  10. 


8G 


JUDGES — QUALIFICATION,  &;C. 


High  Court 
o/Justice. 

Qualifica- 
tion of 
Judges. 


Oaths  of 
office. 


Tenure  of 
office. 


Incapa- 
cities. 


Precedence 
of  Judges. 


Salaries 

iuid 

pensions. 


Vacancy  by 
rosicnation. 


his  place  in  the  same  manner  as  if  the  vacancy  had 
occurred  after  the  commencement  of  the  Act.  (?/) 

(86.)  Any  person  who  has  practised  for  not  less 
than  ten  years  at  the  bar  of  Ireland  is  qualified  to  be 
appointed  a  Judge  of  the  High  Court  of  Justice,  (z) 

Every  Judge  of  the  High  Court  of  Justice,  other 
than  the  Lord  Chancellor,  when  he  enters  on  the 
execution  of  his  office,  is  required  to  take  in  the 
presence  of  the  Lord  Chancellor,  the  oath  of  alle- 
giance and  judicial  oath,  as  defined  by  the  Promissory 
Oaths  Act,  1868.  The  oaths  to  be  taken  by  the 
Lord  Chancellor  are  the  same  as  heretofore,  (a) 

(87.)  Every  Judge  of  the  High  Court,  other  than 
the  Lord  Chancellor,  holds  his  office  for  life,  subject 
to  the  power  of  removal  by  Her  Majesty  on  an  ad- 
dress presented  to  Her  Majesty  by  both  Houses  of 
Parliament.  (6) 

(88.)  No  Judge  of  the  High  Court  is  capable  of 
being  elected  to  or  of  sitting  in  the  House  of  Com- 
mons, or  while  he  continues  such  Judge  can  here- 
after, unless  otherwise  provided  by  Parliament,  be 
appointed  to  any  place  of  profit  under  the  Crown 
except  on  a  transfer  to  another  judicial  appoint- 
ment, (c) 

(89.)  The  Judges  of  the  High  Court  of  Justice, 
who  are  not  also  Judges  of  the  Court  of  Appeal, 
have  rank  next  after  the  ordinary  Judges  of  the 
Court  of  Appeal,  and  amongst  themselves  (subject 
to  the  provision  as  to  existing  Judges),  (d)  according 
to  the  priority  of  their  respective  appointments,  (e) 

(90.)  The  salaries  payable  to  the  Judges  have 
been,  in  certain  cases,  increased,  (/)  and  the  salaries 
of  future  Judges  diminished,  (y)  and  provision  is 
made  for  retiring  pensions.  (A) 

(91.)  The  office  of  any  Judge  of  the  High  Court 

(»/)J.A.,1877,s.  34,  §8.     (z)S.l2.    (o)  S.  13.     (6)  S.  13.     (c)  76. 
{d)  Vide  ante  (S2).     (e)  S.  14.     (/)  S.  17.     (</)  S.  18.     (A)  S.  19. 


JUDGES   OF  APPEAL  MAY  ACT   IN   HIGH  COURT.  87 

of  Justice  or  of  the  Court  of  Appeal,  may  be  vacated  High  court 

If.-,  -,         -,  ■,  T    of  Justice. 

by  resignation  in  writing  under  his  hand,  addressed       

to  the  Lord  Lieutenant,  without  any  deed  of  surren- 
der, or  by  a  Judge  of  the  High  Court  being  appointed 
to  the  office  of  ordinary  Judge  of  the  Court  of 
Appeal. 

The  Court  is  to  be  deemed  duly  constituted  during 
and  notwithstanding  any  vacancy  in  tlie  office  of  a 
Judge  {%) 

(92.)  In  case  from  the  amount  of  business  in  the  Judges  of 
Chancery  Division  of  the  High  Court  of  Justice,  or  may  act  as 
in  any  division  of  the  Court  from  the  absence  of  a  t,"y  fj^fg^j 
Judge  or  Judges  through   illness,  it  shall  be  found  ^*^^'"'- 
expedient  that  some  or  one  of  the  ordinary  Judges 
of  the  Court  of  Appeal,  appointed  after  the  passing 
of  the  Act,  should  assist  in  transacting  the  business 
of  the  division,  it  will  be  lawful  for  them  or  him  so 
to  do,  and  while  so  sitting  and  acting  the  Judge  will 
have  all  the  power,  jurisdiction,  and  authority  of  a 
Judge  or  Judges  of  the  High  Court  of  Justice,  (j) 


CHAPTER  in. 
Divisions  of  the  High  Court  of  Justice. 

93.  Five  Divisions,  p.  87. 

94.  Vacancies  supplied,  89. 

95.  Transfer  of  Judges,  89. 

96.  Judges  may  sit  in  any  Division,  89. 


(93.)  For  the  more  convenient  despatch  of  busi-  Five 
ness  in  the  High  Court  of  Justice,  it  is  made  to  con-  of'nigh  ^ 
sist  of  five  divisions,  (a)  viz.  : —  Court, 

1.  The    Chancery    Division,   containing    as   its  chancery 
judges  the  Lord  Chancellor,  who  is  President;  the  ^^^^^'°"' 
Master  of  the  Rolls,  the  Vice-ChanceUor,  and  the 
Judges  of  the  Landed  Estates  Court,  one  of  whose 

(0  S.  11.  O")  S.  55.  (a)  S.  34,  §  1. 


88 


QUEEN  S  BENCH — COMMON  PLEAS — EXCHEQUER 


r>-!visu)n.i  of 
Iliyh  Court. 

Queen's 

Bench 

Division. 


Common 

I'leas 

Division. 


Exchequer 
Division. 


Probate 
and  Matri- 
monial 
Divibiou. 


offices   is    liable    to    be    suppressed    on    the    first 
vacancy. (6) 

2.  The  Queen's  Bench  Division,  having  the  Lord 
Chief  Justice  (of  Ireland)  as  President,  and  the  other 
Judges  of  the  Court  of  Queen's  Bench  not  being 
more  than  four  in  all.  {hh) 

3.  The  Common  Pleas  Division,  having  the  Lord 
Chief  Justice  of  the  Court  of  Common  Pleas,  and 
the  other  Judges  of  the  Common  Pleas  Division,  not 
being  more  than  three  in  all;  but  with  the  occa- 
sional accession  of  a  fourth  judge  from  the  Queen's 
Bench  Division  for  Parliamentary  election  business, 
as  mentioned  below. 

'Sa.  The  Act  provides  that  whenever  the  Common 
Pleas  Division  is  engaged  in  the  hearing  or  despatch 
of  any  business  relating  to  a  Parliamentary  election, 
within  its  exclusive  coo-nizance,  and  there  being 
but  three  judges  attached  to  the  division,  the  junior 
puisne  judge  of  the  Queen's  Bench  Division  is 
empowered  and  bound  to  attend  and  take  part  in 
the  hearing  and  despatch  of  the  business,  and  is  for 
the  purpose  constituted  a  fourth  member  of  the 
Common  Pleas  Division,  (c) 

4.  The  Exchequer  Division,  having  the  Lord 
Chief  Baron  as  President,  and  the  other  Barons  of 
the  Exchequer,  not  being  more  than  three  in  all — 
after  the  next  vacancy,  (d) 

5.  The  Probate  Division,  having  the  Judge  of 
the  Court  of  Probate,  who  is  also  the  Judge  for 
matrimonial  causes  and  matters,  and  whose  successor 
in  some  future  event  is  to  exercise  the  jurisdiction 
of  the  Court  of  Admiralty,  (e) 

After  the  Admiralty  jurisdiction  has  become 
vested  in  the  Judu'c  of  tlie  Probate  and  Matrimonial 


(6;  S    G,  §  C.  (bl)  S.  30,  §  2. 

id)  S.  3C,  §  5. 


(c)  S.  3(),  §  3  &  -i. 
CO  S.  9,  §  3. 


VACANCIES — TRANSFER,  89 

Division,    the    fifth    division   is    to    be    called    the  nh-hionso/ 
"Probate,  Matrimonial,  and  Admiralty  Division."  (/)       

(94.)  Upon  any  vacancy  happening  among  the  vacancies 
Judges  of  the   High   Court  of  Justice,  the  judge  '"p^^^^^''' 
appointed  to  till  the  vacancy  shall  (subject  to  any 
rules  of  Court)  become  a  member  of  the  division  to 
which  the  judge  whose  place  has  become  vacant 
belonged,  (g) 

(95.)  Any  judge  of  any  of  the  divisions  may  be  Transfer  of 
transferred   by   Her   Majesty,    under    Royal   Sign  fronfwie 
Manual,  from  one  to  another  division,  provided  that  auother.'" 
in  the  case  of  any  judge  existing  at  the  commence- 
ment of  this  Act  such  transfer  shall  not  be  made 
without  his  own  consent,  {h) 

(96.)  Any  Judge  of  the  High  Court  is  competent  judfjesmay 
to  sit  whenever  requii  ed  in  any  Divisional  Court,  division.^ 
or  for  any  judge  of  a  different  division  from  his 
own;  (i)  and  the  junior  judge  of  the  Queen's 
Bench  Division  is  required,  in  certain  events,  to  sit 
in  and  form  a  fourth  member  of  the  Common 
Pleas  Division  on  the  hearing  of  election  petition 
matters,  {j) 


if)  S.  34,  §  G.  iff)  S.  3i,  §  10. 

(k)  S.  U,  §  9. 

(0  S.  34,  §  1.  U)  S.  3G,  §  4. 


90  DIVISIONAL  COURTS — BUSINESS. 


CHAPTER  IV. 


Divisional  Courts. 


97.  For  -what  businesg,  p.  90. 

98.  How  constituted,  91. 

99.  Attendance  of  Judges,  91. 

100.  Arrangement  of  business,  91. 

101.  Jurisdiction  of,  92. 

102.  Cases  and  points  reserved,  92. 

103.  New  Trial  Motions,  92. 


Divisional        (97.)  A  divisional  court  is  a  difierent  thing  from 
"  — '-      a  division.  («)     Divisional  courts  are  to  be  formed 

bus'iiies'I  for  the  purpose  of  hearing  such  causes  and  matters  as 
are  not  proper  to  be  heard  by  a  single  judge,  (6)  and 
generally  all  business  belonging  to  the  Queen's 
Bench,  Common  Pleas,  and  Exchequer  Divisions 
which,  according  to  the  practice  formerly  existing 
in  the  Superior  Courts  of  Common  Law  in  Ireland, 
would  have  been  proper  to  be  transacted  and  dis- 
posed of  by  the  court  sitting  in  Banc,  may  be  dis- 
posed of  by  one  of  these  divisional  courts. 

Thus  cases  and  points  reserved  (c)  are  to  be  argued, 
and  motions  for  new  trials,  motions  in  arrest  of  judg- 
ment or  to  enter  judgment  non  obstante,  or  to  enter 
a  nonsuit,  are  to  be  heard  before  a  divisional  court, 
{d)  and  appeals,  from  orders  made  by  a  judge  in 
chambers  may  be  discharged  by  a  divisional  court. (c) 
A  divisional  court  formed  of  judges  of  any  one  divi- 
sion, ex.  (jr.  the  Queen's  Bench  Division,  may  hear 
appeals  from  a  judge  at  chambers  belonging  to  a 
different  division.  (/) 

In  Chan-  It  docs  not  appear  that  a  divisional  court  is  con- 


eery  busi- 


(a)  See  Fisher  v.  Val  de  Travers  Aepbalte  Co.,  24  W.  R.  198. 

(6)  J.  A.,  1877,  s.  40.  (c)  S.  48,  §  1.  (rf)  S.  51. 

(0  S.  54,  §  1. 

(/)  See  Pacey  v.  London  Tramways  Co.,  20  Sol.  Jour.  412,  where  the 

Queen's  I'.ench   Division  sustained  the    F.-xchequer  Division  practice, 

though  different  from  that  of  the  Queen's  Beuch  Divi^jion. 


ATTENDANCE   OF   JUDGES — ARRANGEMENTS.  91 

templated  for  the  Chancery  business,  at  least  in  ixnsionai 

ordinary  cases,  though  it  is  presumed  that  it  wiii      

be  competent  for  the  Lord  Chancellor  or  the  Master 
of  the  Rolls,  as  heretofore,  or,  indeed,  for  any  judge 
of  the  Chancery  division  to  request  the  assistance 
of  another  Judge  of  the  High  Court  to  assist  in 
deciding  on  novel  or  important  questions.  In 
one  case  a  Chancery  Judge  seemed  to  think  a 
divisional  court  might  advantageously  be  consti- 
tuted in  the  Chancery  Division,  (g) 

(98.)  A  divisional  court  is  constituted  by  two  or  now  con- 

..  1  -r-1  Ti  ^ii       stituted. 

more  judges  Sitting  together.  Jl.  very  Judge  oi  the 
High  Court  is  qualified  and  empowered  to  sit  in  any 
divisional  court,  and  any  number  of  divisional  courts 
may  sit  at  the  same  time.  The  senior  judge  of 
those  present,  according  to  the  order  of  their  pre- 
cedence, will  be  president  of  the  court,  (/i) 

In  England  a  divisional  court  maybe  constituted  in 
vacation  by  two  vacation  judges  sitting  together,  (i) 

(99.)  Every  Judge  of  the  High  Court  who  is  not  Attendance 
for  the  time  being  occupied  in  the  transaction  of 
any  business  specially  assigned  to  him,  or  in  the 
business  of  any  other  divisional  court,  is  bound  to 
take  part,  if  required,  in  the  sittings  of  such  divi- 
sional comets  as  may  from  time  to  time  be  necessary 
for  the  transaction  of  the  business  assigned  to  the 
Queen's  Bench,  Common  Pleas,  and  Exchequer 
Divisions. 

Each  divisional  court  should,  so  far  as  may  be 
found  practicable,  include  one  or  more  judge  or 
judges  attached  to  the  particular  division  of  the 
court  to  which  the  cause  or  matter  out  of  which 
the  business  arises  has  been  assigned,  (j) 

(100.)  The  necessary  and  proper  arrangements  for  Aminge- 

..  TIT  T     •    •  1  jr       ment.s  as  to 

constitutmcj   or   holdimr  divisional  courts,  ana.  tor  business. 

(g)  See  Amies  v.  Clark,  W.  N.  1875,  210  V.  C.  M. 

(h)  S.  45.  (0  Ord.  55,  R.  6.  (;)  S.  46. 


92 


JURISDICTION — CASES — NEW  TRIALS. 


Jurisflic- 
tion  of. 


Cases  and 

points 

reserved. 


Divisional  the  proper  transaction  of  that  part  of  the  business 
— -  of  the  Queen's  Bench,  Common  Pleas,  and  Exchequer 
Divisions,  which  ought  to  be  transacted  by  one  or 
more  judges  not  sitting  in  a  divisional  court,  are 
to  be  made  from  time  to  time  under  the  direction 
and  superintendence  of  the  Judges  of  the  High 
Court  of  Justice,  and  in  case  of  any  difference 
amongst  them,  in  such  manner  as  the  majority  of  the 
Judges  of  the  High  Court  with  the  concurrence  of 
either  the  Lord  Chancellor  or  the  Lord  Chief  Justice 
shall  determine,  (k) 

(101.)  A  divisional  court  for  the  purpose  of 
hearing  causes  and  matters  brought  before  it,  has 
and  may  exercise  all  or  any  part  of  the  jurisdiction 
of  the  High  Court.  (I) 

(102.)  Any  Judge  of  the  High  Court  sitting  in 
the  exercise  of  its  jurisdiction  elsewhere  than  in  a 
divisional  court,  may  reserve  any  case  or  any  point 
in  a  case  for  the  consideration  of  a  divisional  court, 
or  may  direct  any  case  or  point  of  a  case  to  be  argued 
before  any  such  court,  and  any  such  court  has  power 
to  hear  and  determine  the  case  or  point  so  reserved 
or  directed  to  be  argued,  (m) 
Motions  for      (103.)  All  motious  for  new  trials  of  any  cause  or 

new  trials,  •    •         •        i       /-\ 

&c.  matter  arising  in  the  Queen  s  Bench,  Common  Pleas 

and  Exchequer  Divisions,  on  which  a  verdict  has  been 
found  by  a  jury,  or  by  a  judge  without  a  jury,  and  all 
motions  in  arrest  of  judgment,  or  to  enter  judgment 
noil  obstante  veredicto,  or  to  enter  a  verdict  for 
plaintiff  or  defendant,  or  to  enter  a  non-suit,  or  to 
reduce  damages,  must  be  heard  before  a  divisional 
court,  (7?)  otherwise  no  appeal  will  lie  from  the  judg- 
ment, but  when  the  divisional  court  does  decide  on 
any  such  motion  or  proceeding,  an  apjjeal  lies  from 
its  decision  to  the  Court  of  Ajtpcal.  (o) 


(_k)J.  A.,  1677,  s.  iG.     (l)  S.  1,-.     (»,)  S.  48,  §  1.     («)  S.  51.     (o)  lb. 


COMMISSIONS   TO   TRY   QUESTIONS   OF   FACT.  93 

CHAPTER  V. 

Commissions  of  Assize  and  Nisi  Prius. 

104.  Commissions  to  tn-  questions  of  law  and  fact,  p.  93. 

105.  Circuits  and  Assizes  to  continue,  93. 

106.  Power  to  re-arrange  circuits,  94. 

107.  Winter  Assizes,   94. 

108.  Judges  for  ordinary  commissions,  &c.,  95. 

109.  One  Judge  for  Dublin  Commission,  96. 

1 10.  Clerks  of  Assize  and  Nisi  Prius,  96. 


(104.)  Her  Majesty  is  authorized  by  commission  Commis- 
of  assize  or  by  any  other  commission,  either  general  ^ssue  and 

or  special,  to  assign  to  any  Judge  or  Judges  of  the    '*' "'"' 

High   Court   of  Justice   or   other    persons  usually  Commis- 

.  ..  „         .  ,-,  sions  to  try 

named  in  commissions  ot  assize,  the  duty  of  trying  questions  of 
and  determining  within  any  place  or  district  spe- 
cially fixed  for  that  purpose  by  the  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  High  Court,  or 
the  exercise  of  any  civil  or  criminal  jurisdiction 
capable  of  being  exercised  by  the  High  Court,  and 
any  commissioner  or  commissioners  appointed  ac- 
cordingly will,  when  engaged  in  the  exercise  of  any 
jurisdiction  assigned  to  him  or  them,  be  deemed  to 
constitute  a  court  of  the  High  Court  of  Justice,  (a) 
This  would  seem  to  authorize  the  hearing  of  a  cause 
from  the  Chancery  Division,  or  an  issue  on  a  ques- 
tion of  law  to  be  had  in  the  country,  (a) 

(105.)  The  Act  provides  that  its  provisions  shall  Circuits 
not  affect  the  circuits  of  the  Judges,  or  the  issue  of  to  continue. 
any  Commissions  of  Assize,  Nisi  Prius,  Oyer  and 
Terminer,  Gaol  Delivery,  or  other  commissions  for 
the  discharge  of  civil  or  criminal  business  on  cir- 
cuit or  otherwise,  unless  or  until  other  commissions 

(a)  S.  32,  §  1. 


94 


CIRCUITS — WINTER  ASSIZES. 


Commis- 
sions of 
Jsnize  and 
Alsi  Prius. 


Tower  to 

rf-arran{,'e 

circuits. 


Winter 
assizes. 


are  issued  in  pursuance  of  the  Act,  {h)  or  any  pa- 
tronage vested  in  the  Judges  going  circuit,  or  the 
position,  salaries,  or  duties  of  any  officers  transferred 
to  the  Court  of  Judicature  who  were  officers  of  the 
courts  of  common  law  and  perform  duties  in  rela- 
tion to  either  the  civil  or  criminal  business  trans- 
acted on  circuit,  (c)  except  as  is  by  the  Act  expressly 
directed,  (c)  ex.  gr.  as  to  registrars  and  clerks  of 
Assize  or  Nisi  Prius.  (d) 

(106.)  The  Lord  Lieutenant  is  authorized  from 
time  to  time,  after  the  1st  day  of  January,  1878,  by 
an  Order  in  Council,  to  re-arrange  the  several  cir- 
cuits or  reduce  their  number,  and  direct  what  coun- 
ties and  towns  shall  be  upon  each  circuit,  (e) 

All  Orders  in  Council  made  in  pursuance  of  this 
provision  are  to  be  laid  before  each  House  of  Parlia- 
ment within  such  time  and  are  subject  to  be  an- 
nulled in  such  manner  as  is  provided  in  the  Judica- 
ture Act.  (/) 

(107.)  The  provisions  of  the  Winter  Assizes  Act, 
1876,  {g}  except  section  5,  are  extended  to  Ire- 
land, and  its  powers  vested  in  the  Lord  Lieutenant 
and  the  Privy  Council,  by  whom  provision  may  be 
made  by  an  Order  in  Council  for  the  hearing  and  des- 
patch at  any  Winter  Assizes,  as  well  of  criminal 
business  as  also  of  such  civil  business  as  may  be  by 
such  order  prescribed,  {h)  The  Winter  Assizes  Act, 
1876,  provides  (i)  that  where  it  appears  that  by 
reason  of  the  small  number  of  prisoners  or  other- 
wise it  is  usually  inexpedient  to  hold  separate 
Winter  Assizes — that  is,  assizes  to  be  held  in  the 
months  of  November,  December,  or  January,  (j)  a 
later  statute  adds  the  months  of  September  and 


(i)  See  fupra  (104.) 
(d)  See  in/ra  {no.)         (e)  S  62, 

(-7)  39  &  40  Vic,  c.  57. 
(0  31)  &  40  Vic,  c  67.  s.  2. 


(c)  J.  A.  1877,  s.  81. 

(/)  lb.,  and  see  ante  (32). 

(//)  J.  A.,  1877,  8.  63. 
0)  3'J  &  40  Vic.  c.  57,  s.  6. 


ORDIXARY   COMMISSIONS — JUDGES   FOR.  95 

October,  but  this  is  not  extended  to  Ireland,  (k) —  commis- 
for  any  county,  by  Order  in  Council  from  time  to  Assize  and 

time,  provision  may  be  made  for  uniting  one  county  ^  **! "^' 

with  any  neighbouring  county  or  counties,  and  ap- 
pointing a  place  or  places  at  which  the  Winter  As- 
sizes shall  be  held  for  the  united  counties  in  each  or 
in  different  years,  and  for  regulating  the  jurisdiction 
of  the  court,  the  attendance,  authority,  and  duty  of 
sheriffs,  gaolers,  officers,  jurors,  and  other  persons  ; 
the  use  of  prisons,  the  alteration  of  commissions, 
wi^its,  precepts,  indictments,  recognizances,  pro- 
ceedings, and  documents,  and  their  transmission; 
the  expenses  of  prosecutors  and  witnesses,  and  of 
maintaining  and  removing  prisoners.  Any  such 
Order  in  Council  purporting  to  be  made  in  pur- 
suance of  the  Act  is  invested  with  the  same  force 
and  effect  as  if  it  were  enacted  in  the  statute,  and  for 
all  the  purposes  of  the  holding  of  the  Winter  As- 
sizes, the  counties  united  by  the  order  are  to  be 
deemed  one  county,  and  the  Assizes  as  if  held  in 
and  for  each  of  the  constituent  counties.  Those 
Orders  in  Council  may  be  revoked  or  altered  by 
-future  Orders  in  Council,  and  are  required  to  be 
laid  before  each  House  of  Parliament  in  the  usual 
way.  (/)  All  other  enactments  as  to  alteration  of 
circuits  or  places  for  holding  Assizes,  (m)  or  other- 
wise relating  to  Assizes  and  circuits  are  made  ap- 
plicable to  the  winter  assizes,  {n) 

(108.)  Subject  to  any  arrangements  which  may  Judges  for 
be,  from  time  to  time,  made  by  mutual  agreement  commis^ 
between  the  Judges  of  the  High  Court,  the    sit-  gltungs^at 
tings  for  trials  by  jury  in  Dublin,  and  the  sittings  i^sipnus. 
of  Judges  of  the  High  Court  under  Commissions  of 
Assize,  Oyer  and  Terminer  and  Gaol  Delivery,  will 
be  held  by  or  before  Judges  of  the  Queen's  Bench, 

ik)  40  &  41  Vic.  c.  46.  (0  39  &  40  Vic.  c.  57,  s.  2. 

im)  See  ante  (104).  (ji)  39  &  40  Vic.  c.  57,  s.  4. 


96 


DUBLIN   COMMISSION. 


C'ommiS' 
sioiis  of 
Assize  and 
Am  Prius. 


One  Jud^e 
for  Dublin 
Commis- 
sion. 


Clerks  of 
assize  and 
nisi  prius. 


Common  Pleas,  and  Exchequer  Divisions  of  the 
Higli  Court.  But  Her  Majesty  may,  if  she  so 
think  fit,  include  in  any  such  commission  any 
ordinary  Judge  of  the  Court  of  Appeal,  or  any 
Judge  of  the  Chancery  Division  appointed  after  the 
1st  day  of  January,  1875.  Also  any  of  her  Ser- 
geants-at-Law  and  counsel  learned  in  the  law  who, 
for  the  purposes  of  the  commission,  will  have  all 
the  power,  authority,  and  jurisdiction  of  the  High 
Court,  (o)  The  Act  then  makes  provision  for  pay- 
ment of  a  commissarv  not  being  a  Judge  of  the 
High  Court,  and  in  certain  cases  for  a  deduction 
from  the  salary  of  the  Judge  in  whose  place  the 
commissary  is  sent.(2)) 

(109.)  The  Act  provides  that  it  shall  not  be  ne- 
cessary, as  heretofore,  in  any  commission  for  the 
trial  of  crimes  and  offences  in  the  county  of  the  city 
and  county  of  Dublin,  to  nominate  more  than  one 
Judge  to  preside,  nor  for  more  than  one  Judge  to 
preside  under  any  commission  existing  at  the  com- 
mencement of  the  Act.  (g) 

(110.)  Clerks  of  Assize  and  Nisi  Prius  on  circuit 
and  at  Winter  Assizes  may  be  appointed  and  paid 
in  the  same  manner  as  heretofore ;  clerks  of  Nisi 
Prius  in  Dublin  are  to  be  appointed  by  the  existing 
Chief  Judges  of  the  Queen's  Bench,  Common  Pleas, 
and  Exchequer  Divisions,  and  shall  be  paid  as  here- 
tofore, but  this  right  of  appointment  will  not  be 
c(mtinvied  to  their  successors,  and  other  provisions 
are  to  be  made  for  the  discharge  of  the  duties  now 
discharged  by  such  clerks  under  the  provisions  of 
the  Judicature  Act  relating  to  future  officers  of  the 
Court,  (r) 


io)  J.  A.,  1877,  s.  41. 


(l>)  Ih. 


(.y)S.  41.  0)S.  77. 


[     97    ] 

CHAPTER  VI. 
Court  Sittings  and  Vacations. 

111.  Abolition  of  Terms,  p.  97. 

112.  When  Measures  of  Time,  97. 

113.  Courts  may  sit  at  any  time  or  place,  98. 

114.  Court  Sittings,  98. 

115.  Vacations  regulated,  98. 

116.  Vacation  Judges,  99. 


(111.)  The  division  of  the  legal  year  into  Terms  Abolition 
is  abolished  so  far  as  relates  to  the  administration 
of  justice.  There  will  no  longer  be  "  terms  "  appli- 
cable to  any  sitting  or  business  of  the  High  Court 
of  Justice  or  of  the  Court  of  Appeal,  or  of  any  Com- 
missioners to  whom  any  jurisdiction  may  be  assigned 
under  the  Act. (a) 

(112.)  In  all  other  cases  than  as  relates  to  the  when 
administration  of  justice,  in  w^hich  under  the  exist-  of  time, 
ing  law,  the  "  terms  "  into  which  the  legal  year  was 
divided,  were  used  as  a  measure  for  determininsr  the 
time  at,  or  within  which  any  act  is  required  to  be 
done,  the  same  may  be  continued  to  be  referred  to  for 
the  same  or  the  like  purpose,  unless  and  until  provi- 
sion is  otherwire  made  by  some  laAvful  authority.(6) 
Thus  the  statute  9  &  10  Wm.  III.  c.  15,  s.  2  (Engl.)  cor- 
responding to  the  10  Wm.  III.  c.  14  (Irish)  required 
that  any  application  to  set  aside  an  award,  under  its 
provisions,  shaR  be  made  before  the  last  day  of  the 
next  term  after  the  award  shall  be  made  and  pub- 
lished, (c)  This  limitation  of  time  still  existing,  as 
regards  the  duration  of  the  old  term,  in  certain 
periods  of  the  year,  is  calculated  to  make  it  difficult, 
if  not  impossible,  to  have  such  application  made  in 
time;  thus,  where  an  award  was  madp  on  the  28th 

(a)  J.  A.,  1877,  s.  29.  (b)  lb. 

(c)  As  to  its  application  hitherto  see  Corporation  of  Huddersfield 
V.  Jacomb,  L.  R.,  17  Eq.  476,  V.  C.  M. ;  S.  C.  on  Appeal,  L.  K.,  10 
Chan.  92,  L.  JJ.,  Com.  Law  Pro.  Act,  1856,  s.  12. 

F 


98 


COURT   SITTINGS — VACATIONS. 


Court 

Sittings  and 

Vacation. 


Courts  may 
sit  at  any 
time  or 
place. 


Court 
sittings. 


Vacations 
regulatod 
by  Order 
in  Council. 


March,  1877,  an  application  to  set  it  aside  made  on 
a  day  after  the  8th  May  following,  on  which  Easter 
Term  used  to  end,  was  too  late  and  refused. ((i*) 

(113.)  Subject  to  Rules  of  Court,  the  High  Court 
of  Justice,  the  Court  of  Appeal,  and  the  Judges  of 
same  respectively,  or  any  Commissioners  to  whom 
any  jurisdiction  is  assigned  under  the  Act,  have 
power  to  sit  at  any  time,  and  at  any  place  for  the 
transaction  of  any  part  of  the  business  of  their 
Courts,  respectively,  or  of  such  Judges  or  Commis- 
sioners or  for  the  discharge  of  any  duties  which  by 
any  Act  of  Parliament  or  otherwise,  is  required  to 
be  discharged  during  or  after  terms,  (e)  Of  course 
it  should  not  be  assumed  from  this,  that  any  court  or 
judge  will  sit  in  private  to  hear  (even  by  consent 
of  parties)  matters  which  the  public  interest  requires 
to  be  investigated  in  public.  The  affairs  of  lunatics 
and  wards  of  court,  and  peculiar  cases,  in  which  a 
public  trial  would  defeat  the  ends  of  justice,  are 
exceptions  to  this  Rule.(/) 

(114.)  The  Judges,  with  certain  sanctions  and 
consents,  are  authorized (gr)  to  make  Rules  of  Court 
for  regulating  the  Sittings  of  tlie  High  Court  of 
Justice  and  the  Court  of  Appeal,  and  of  an}^  Divi- 
sional or  other  Courts  and  of  the  Judges  of  the  High 
Court  sitting  in  Chamber. 

(115.)  The  Lord  Lieutenant  and  Privy  Council, 
on  the  report  of  the  judges  or  council  of  judges, 
(and  with  the  consent  of  the  Lord  Chancellor)  from 
time  to  time  may  by  order  regulate  the  vacations  to 
be  observed  in  the  High  Court  of  Justice,  the  Court 
of  Appeal,  and  in  the  offices  of  the  respective  courts; 

(d)  Governors  of  Clirist's  Hospital,  Brecknock,  v.  Martin,  25  W.  K. 
C37;  W.  N,,  1877,  132,  A.  C. 

(e)  J.  A.,  1877,  s.  21). 

(/)  See  Andrew  v.  Raeburn,   L.  R.,  9  Ch.,  522.     Naglc  Oilman  v. 
Christopher,  W.  N.,  1876,  280  M.  R. 
(y)    Vide  ante,  p.  58. 


VACATION  JUDGES— NISI  PRIUS.  99 

and  the  Order  in  Council,  so  long  as  it  is  in  force,  conrt 
shall  be  of  the  same  effect  as  if  contained  in  the  Act;  vacation. 
and  Rules  of  Court  may  be  made  for  carrying  these 
regulations  into  effect,  as  if  the  Order  in  Council 
were  part  of  the  Judicature  Act.  Meanwhile  the 
vacations  shall  be  fixed  in  the  same  manner  and  by 
the  same  authority  as  heretofore,  (h) 

(116.)  Provision  is  to  be  made  for  the  hearing  in  vacation 
Dublin   during   vacation,  by  Judges   of  the  High    "  ®*^'*' 
Court  of  Justice  and  the  Judges  of  the  Court  of 
Appeal  respectively,  of  all  such  applications  as  may 
require  to  be  immediately  or  promptly  heard,  (i) 


CHAPTER  VII. 

Nisi  Prius  Sittings,  Dublin. 

117.  Sittings  to  be  continuous,  99. 

118.  Judges  for,  99. 

(117.)  Sittings  for  the  trial  by  jury  of  causes  and  Dublin 
questions  or  issues  of  fact,  are  to  be  held  in  Dublin,  sittings 
and   such   sittings   shall,  so   far   as   is   reasonably  continuous. 
practicable,  and  subject  to  vacations,  be  held  con- 
tinuously throughout  the  year,  by  as  many  judges 
as  the  business  to  be  disposed  of  may  render  neces- 
sary, (a) 

(118.)  Subject  to  any  arrangements  which  may  Judges  for 
be  from  time  to  time  made  by  agreement  between  sittings, 
the  Judges  of  the  High  Court,  the  sittings  for  trials 
by  jury  in  Dublin,  are  to  be  held  before  Judges  of 
the  three  Common  Law  Divisions  of  the  High 
Court  ;(6)  of  course  every  Judge  of  the  High  Court 
has  full  power  and  jurisdiction  to  sit  for  trial  of 
issues  without  reference  to  the  Division  from  which 
they  come.  When  so  sitting  he  will  be  deemed  to 
constitute  a  Court  of  the  High  Court  of  Justice,  (c) 

(k)  J.  A.,  1877,  s.  30.  (t)  lb.,  s.  31.  (a)  lb.,  s.  33. 

ih)  lb.,  s.  41.  (c)  lb.,  s.  33. 

F2 


[     100    ] 

CHAPTER  VIII. 
Election  Judges. 

119.  Rota  of  Judges  for  Election  Petitions,  100. 


Rota  for  (H^-)  The  judges  to  be  placed  on  the  rota  for  the 

peTitioas.  trial  of  election  petitions  for  Ireland  in  each  year, 
under  the  provisions  of  the  "  Parliamentary  Elec- 
tions Act,  1868,"  81  &  32  Vic,  c.  125,  are  to  be 
selected  out  of  the  Judges  of  the  three  Common  Law 
Divisions  of  the  High  Courts  of  Justice,  in  such 
manner  as  may  be  provided  by  any  Rules  of  Court 
to  be  made  for  that  purpose. (a)  In  the  meanwhile 
and  subject  thereto,  the  judges  are  to  be  selected 
out  of  the  Common  Law  Divisions  by  the  judges 
of  the  same,  as  if  such  divisions  had  been  named 
instead  of  the  Courts  of  Queen's  Bench,  Common 
Pleas,  and  Exchequer,  respectively,  in  the  Act,  and 
the  judges  who  at  the  commencement  of  the  Act 
shaU  be  judges  upon  the  rota  for  the  trial  of  election 
petitions  during  the  year  1878  continue  upon  such 
rota  for  the  same  period,  and  in  the  manner  as  if 
the  Judicature  Act  had  not  passed. (6) 

The  exclusive  jurisdiction  belonging  to  the  former 
Court  of  Common  Pleas  for  the  general  disposal  of 
election  matters  save  and  except  the  trial  (c)  is  re- 
served to  the  Common  Pleas  Division.  The  junior 
Judge  of  the  Queen's  Bench  Division  is  required  to 
sit  with  and  form  a  fourth  member  of  the  Common 
Pleas  Division  when  engaged  in  the  hearing  or 
despatch  of  any  part  of  this  business  so  within  its 
exclusive  jurisdiction. (cZ) 

(a)  Semhle  under  section  25  of  the  Election  Petitions  Act,  and  not 
under  the  Judicature  Act. 

(6)  J.  A.,  1877,  «.  43. 

(c)  See  as  to  this,  Macartney  r.  Corry,  Ir.  Rep.  7  C.  L.  242,  Coram 
Fitzgerald,  J.,  in  Chamber. 

{d)  J.  A.,  1877,  s.  30,  §  4. 


[     101     ] 

CHAPTER  IX. 
The  Court  of  Appeal,  Constitution  of. 

120.  Constituent  members  of,  p.  101. 

121.  First  ordinary  members,   101. 

122.  Lord  Chancellor,  President,  102. 

123.  Authoritj'  of  Judges,  and  business  arrangements,   102. 

124.  Vacancies,  how  filled,  103. 

125.  Qualifications  and  disabilities,  103, 

126.  Precedence  of  Judges,  103. 

127.  May  act  on  Commissions  of  Assize,  103. 

128.  May  sit  in  Chancery  Division,or  for  other  Judge,  duringillness,104. 

129.  No  Judge  to  sit  on  appeal  from  his  own  order,  104. 


n  20.")  The  second  but  higher  permanent  division  Constituent 

^  '  o  A  •  f>     TT       memberboi. 

of  the  Supreme  Court  of  Judicature  consists  of  "  Her 
Majesty's  Court  of  Appeal  in  Ireland,"  and  is  con- 
stituted as  follows : — 

1st.  Five  ex-officio  Judges,  namely,  the  Lord 
Chancellor,  Lord  Chief  Justice,  Master  of  the  Roils, 
Lord  Chief  Justice  of  the  Common  Pleas  and  Lord 
Chief  Baron  of  the  Exchequer. 

2nd,  2\oo  ordinary  Judges,  styled  Lords  Justices 
of  Appeal. 

3rd.  Additional  Judges,  consisting  of  ex-judges 
who  have  at  one  time,  held  the  office  of  Lord 
Chancellor  or  of  Chief  Justice,  Master  of  the  Rolls, 
Chief  Justice  of  the  Common  Pleas,  or  Chief  Baron 
of  the  Exchequer  in  Ireland,  and  shall  signify  in 
writing  their  willingness  to  serve  as  such  additional 
judges.  They  may  be  appointed  such  by  Her 
Majesty  under  Her  Royal  Sign  Manual  with  the 
style  of  Lord  Justice  of  Appeal. (a) 

(121.)  The  first  ordinary  judges  of  the  court  are  First 
the  existing  Lord  Justice  of  Appeal  in  Chancery,  judge^.^ 
and  such  other  person  as  Her  Majesty  may  appoint 
by  Letters  Patent  either  before  or  after  the  com- 
mencement of  the  Act,  upon  the  terms  as  to  salary 
and  otherwise,  and  subject  to  the  conditions  and  in 
the   manner  provided   by  the   "Chancery  Appeal 

(a)  J.  A.,  1877,  s.  10. 


102 


PRESIDENT — ARRANGEMENT   OF  BUSINESS. 


Lord 

Chancellor 
President. 


Court  of   Court  (Ireland),  Act,  1856,"  in  respect  of  the  office  of 

A^i.     -^^^.^  Justice  thereby  created.(6) 

The  existing  judge  in  ordinary,  viz.,  the  Lord 
Justice  of  Appeal  in  Chancery  remains  in  the  same 
condition  as  to  tenure  of  office,  rank,  title,  patronage, 
and  powers  of  appointment  or  dismissal,  and  all 
other  privileges,  &c.,  and  as  to  salary  and  pension, 
and  obligations,  as  heretofore.  He  is  not  bound, 
without  his  own  consent,  to  act  in  any  commission 
of  assize.(c) 

(122.)  The  Lord  Chancellor  is  the  President  of 
the  Court  of  Appeal,  (d)  and  the  Judicature  Act 
provides  that  he  shall  not  be  bound  or  required  to 
exercise  any  of  the  functions  of  a  judge  of  the  High 
Court  of  Justice,  or  of  the  Chancery  Division  of 
same,  unless  he  shall  by  special  order  direct  that 
any  shall  be  disposed  of  by  himself.  But  all  matters 
of  first  instance  shall  be  disposed  of  by  one  of  the 
other  Judges  of  the  Chancery  Division,  so  that  the 
Lord  Chancellor  shall  in  relation  to  such  matters 
exercise  only  the  functions  of  a  Judge  of  the  Court 
of  Appeal. (e)  The  result  of  the  Lord  Chancellor 
discharging  business  of  a  first  instance  nature,  is 
that  an  appeal  from  his  order  will  be  impracticable, 
or  he  must  retire  from  the  Court  of  Appeal  and 
cease  to  act  as  President  of  it,  inasmuch  as  no  judge 
can  sit  on  the  hearing  of  an  appeal  from  any  order 
made  in  a  cause  or  matter  heard  by  himself  (/) 
Authority  (123.)  All  the  Judges  of  the  Court  of  Appeal 
have  in  all  respects,  save  where  otherwise  expressly 
provided  by  the  Act,  equal  power,  authority,  and 
jurisdiction.(f7) 

All  such  arrangements  as  may  be  necessary  or 
proper  for  the  transaction  of  the  business  from  time 
to  time  pending  before  the  Court  of  Appeal  are  to 


of  Judges. 


Arrange- 
ment of 
buiiiuead. 


{b)  J.  A.,  1877,  S.  10,  §  5. 
(,1)  S.  10,  §  6. 
(/)  See  s.  57,  infra  (129). 


(c)  S.  15. 

(c)  rh. 

(y)  S.  10,  §  3. 


VACANCIES — QUALIFICATIONS.  103 

be  made  by  and  under  the  direction  of  the  President    Court  o/ 
and  the  other  Judges  of  the  court. (/i)  —  ' 

(124.)  When  the  office  of  Judge  of  the  Court  of  vacancies. 
Appeal  becomes  vacated  (as  it  may  be  by  simple 
resio-nation  in  writing  under  his  hand  addressed  to 
the  Lord  Lieutenant), (i)  a  new  judge  may  be  ap- 
pointed by  Letters  Patent  as  provided  by  the 
Chancery  Appeal  Court  (Ireland)  Act,  1856.(j)  But 
the  court  is  to  be  deemed  duly  constituted  notwith- 
standing any  vacancy  in  the  office  of  any  judge.(A;) 

(125.)  The  qualification  required  for  the  office  of  Quaiifica- 
ordinary  judge  of  the  Court  of  Appeal  is  "a  fit  person  disabmties. 
who  shall  have  exercised  the  office  of  Lord  His^h 
Chancellor  of  Ireland,  or  who  shall  have  practised 
at  the  bar  for  not  less  than  fifteen  years,"(Z)  or  has 
been  a  Judge  of  the  High  Court  of  Justice  of  not 
less  than  one  year's  standing. (m)  The  tenure  and 
oaths  of  office  anddisabilitieo  attached  to  the  office  are 
the  same  as  those  of  a  Judge  of  the  High  Court.(?i) 

(126.)  The    ex-ojfficio    Judges    of  the    Court    of  Precedence 
Appeal  take  rank  in  the  Supreme  Court  of  Judica-  " 

ture  in  the  order  of  their  respective  official  prece- 
dence. The  ordinary  judges  of  the  court  take  rank 
as  provided  by  the  Chancery  and  Common  Law 
Officers  (Ireland)  Act,  1867,  i.e.  "  next  after  the  Lord 
Chief  Baron  of  the  Court  of  Exchequer  in  Ire- 
land."(o)  The  ordinary  judges  if  not  entitled  to 
precedence  as  Peers  or  Privy  Councillors,  take  pre- 
cedence as  between  themselves,  according  to  the 
priority  of  their  respective  appointments. (p) 

(127.)  Any  Judge  of  the  Court  of  Appeal  ap- May  act 
pointed  after  the  1st  day  of  January,  1875,  is  capable  commission 

Qi)  J.  A.,  1877,  s.  58.     In  the  J.  A.,  1873,  s.  55, it  is  "  The  President 
and  the  other  ex-officio  and  ordinary  judges." 
(0  J.  A.,  1877,  s.  11. 

(j)  Ih.,  s.  10;  and  see  19  &  20  Vic,  c.  92,  s.  3. 
{k)  J.  A.,  1877,  s.  11.  (/)  19  &  20  Vict.,  c.  92,  s.  3. 

(wi)  J.  A.,  1877,  s.  12.  (?i)  76.,  s.  13,  and  vide  ante  (80). 

(o)  30  &  31  Vic,  c  129,  s.  Zi.  (jj)  lb.,  s.  14. 


lOi  NO  JUDGE  IX  APPEAL  FROM  HIMSELF. 

Court  of    and  bound  to  act  under  any  Commission  of  Assize, 
—  ■    Nisi  Prius,  Oyer  and  Terminer  or  Gaol  Delivery,  or 
for  the  trial  of  crimes  and  oftences.(5') 

Any  Judge  of  the  Court  of  Appeal  appointed 
•  before  the  day  above  mentioned  cannot  be  so  re- 
quired to  act  without  his  own  consent. (9) 

It  would  seem  that  any  Common  Law  Judge  ac- 
cepting the    office    of  Lord  Justice  of  Appeal  in 
.  ordinary  would,  according  to  the  language  of  the  Act, 
be  bound  to  act  in  such  a  commission  if  named. 
Judge  may       (128.)  In  casc,  in  the  Chancery  Division  of  the 
Chancery    High  Court  of  Justicc,  from  the  amount  of  business, 
for  other     or  in  any  Division  of  the  Court,  from  the  absence  of 
during        a  judge  or  judges  through  illness,  it  is  found  ex- 
iiiness.        pedient  that  some  or  one  of  the  ordinary  Judges  of 
the  Court  of  Appeal,  appointed  after  the  passing  of 
the  Judicature  Act  (?')  should  assist  in  transacting 
the  business  of  the  Division,  he   may  do   so,  and 
while  so  sitting  and  acting  the  judge  will  have  all 
the  power,  jurisdiction,  and  authority  of  a  Judge  or 
Judges  of  the  High  Court  of  Justice.(s) 
No  Judge         (129.)  No  Judge  of  the  Court  of  Appeal  can  sit 
appeal         as  a  judgc  on  the  hearing  of  an  appeal  from  any 
own"order.  judgment  or  order  made  in  a  cause  or  matter  heard  by 
himself  either  sitting  alone  or  with  other  judges. (/) 
The  Lord  Chancellor  being  the  permanent  Presi- 
dent of  the  Court  of  Appeal,  if  he  were  to  act  as  a 
judge  of  first  instance,  some  embarrassment  would  be 
created  if  an  appeal  were  taken  to  his  own  order.     A 
judge  of  a  divisional  court  cannot  sit  on  appeal  from  a 
decision  in  which  he  has  taken  a  part,  yet  any  other 
judge  of  the  same  division  may  sit  on  the  appeal. (it) 

(9)  J.  A.,  1877,  s.  15,  §  2,  but  see  as  to  date  1st  January,   lb75, 
infra  (128). 

(r)  This  is  not  in  harmony  as  to  date  with  s.  15,  vide  ante  (127). 

(0  S.  55.  (0  S.  57. 

(«)  Fisher  v.  Val  de  Travers  Asphalte  Co.,  24  W.  R.  198. 


PART  II. 


JURISDICTION. 


Chapter      X. — Transferred  to  High  Court. 
XL — Not  transferred. 
XII. — Lunacy  Jurisdiction. 
XIII. — Common  Law  Jurisdiction  of  Lord  Chancellor. 
XIV. — Landed  Estates  Court  Jurisdiction. 
XV. — Probate  and  Admiralty  Jurisdiction. 
XVI. — Criminal  Jurisdiction. 
XVII. — Of  Single  Judge  at  Chambers  or  Nisi  Prius. 
XVIII. — Of  Court  of  Appeal. 


f3 


106  GENERAL  JURISDICTION   OF   HIGH  COURT. 

CHAPTER  X. 
General  Jurisdiction  of  High  Court. 

130.  Jurisdiction  in  General,  p.  106. 

131.  Acts  of  Parliament  applied,  107. 

132.  The  Court,  108. 

133.  Powers  of  a  Single  Judge,  108. 

134.  Statutory  Powers  of  Masters  in  Chancery,  108. 

135.  Chancery  Powers,  111. 

136.  Receiver-Masters,  111. 

137.  Public  Accounts  Audit,  112. 

138.  Authorities  not  incident  to  Administration  of  Justice,  112. 


jurisdic-         (130.)  The  High  Court  of  Justice  is  constituted  a 
n'igii'court.  "  Superior  Court  of  Record,"  and  there  is  transferred 
generally.    ^.^  ^^^  vested  in  it  the  jurisdiction  which,  at  the 
commencement  of  the  Act,  was  vested  in  or  capable 
of  being  exercised  by  all  or  any  of  the  Courts  follow- 
ing, that  is  to  say : — 

1.  The  High  Court  of  Chancery  as  a  Common 
Law  Court,  as  well  as  a  Court  of  Equity,  including 
the  jurisdiction  of  the  Master  of  the  Rolls,  as  a 
Judge  or  Master  of  the  Court  of  Chancery,  and  any 
jurisdiction  exercised  by  him  or  the  Lord  Chancellor 
in  relation  to  the  Court  of  Chancery  as  a  Common 
Law  Court,  and  including  any  jurisdiction  of  the 
Masters  in  Chancery. 

2.  The  Court  of  Queen's  Bench. 

3.  The  Court  of  Common  Pleas. 

4.  The  Court  of  Exchequer  as  a  Court  of  Revenue 
as  well  as  a  Common  Law  Court. 

5.  The  Court  of  Probate. 

6.  The  Court  for  Matrimonial  Causes  and 
Matters. 

7.  The  Landed  Estates  Court,  including  the  con- 
trol and  direction  of  the  Record  of  Title  Office  of 
the  said  Court,  and  all  powers  and  authorities  exer- 
cised by  the  Judges  of  that  Court  or  auy  of  them, 
under  the  Record  of  Title  Act,  1865. 


STATUTES  CONSTRUED  TO  APPLY.  107 

8.  The  Court  created  by  Commissions  of  Assize,  Juris(UcUo:i 
of  Oyer  and  Terminer  and  of  Gaol  Delivery,  or  any     cm!^rt. 
of  such  Commissions,  (a) 

The  jurisdiction  transferred  to  the  High  Court  of 
Justice  includes  all  the  jurisdiction  which  was  vested 
in  or  capable  of  being  exercised  by  all  or  any  one  or 
more  of  the  judges  of  the  courts  transferred  respec- 
tively, sitting  in  court  or  chambers  or  elsewhere,  or 
by  any  Master  of  the  Court  of  Chancery,  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,  masters 
or  master  by  any  statute ;  and  also  all  ministerial 
powers,  duties,  and  authorities,  incident  to  any  and 
every  part  of  the  jurisdiction  so  transferred. (6) 

(L31.)  All  Acts  of  Parliament  relating  to  the  Acts  con- 
several  courts  and  judges  whose  jurisdiction  is  appiyingto. 
transferred  to  the  High  Court  of  Justice  (and  to  the 
Court  of  Appeal),  or  wherein  any  of  such  courts  or 
judges  are  mentioned  or  referred  to,  are  to  be  con- 
strued and  take  efiect,  so  far  as  relates  to  anything 
done  or  to  be  done  after  the  commencement  of  the 
Judicature  Act,  as  if  the  High  Court  of  Justice  (or 
the  Court  of  Appeal)  and  the  judges  thereof  respec- 
tively, as  the  case  may  be,  had  been  named  therein 
instead  of  such  courts  or  judges  whose  jurisdiction 
is  so  transferred  respectively  ;  and  in  all  cases  not 
expressly  provided  for,  in  which,  under  any  such 
Act,  the  concurrence  or  the  advice  or  consent  of  the 
judge,  or  any  judges,  or  of  any  number  of  the  judges 
of  any  one  or  more  of  the  courts,  whose  jurisdiction 
is  so  transferred  to  the  High  Court  of  Justice,  is 
made  necessary  to  the  exercise  of  any  power  or 
authority  capable  of  being  exercised  after  the  com-- 
mencement  of  the  Act,  such  power  or  authority  may 

(a)  J.  A.,  1S77,  s,  21.  (6)  lb. 


108 


THE   COURT — SINGLE   JUDGE. 


The  Court. 


Powers  of 
a  single 
Judge. 


Jurisdiction  be  cxercised  by  and  with  the  concurrence,  advice,  or 

^Cou?t.     consent  of  the  same  or  a  like  number  of  judges  of 

the  High  Court  of  Justice.     But  any  provisions  of 

such  Acts  inconsistent  with  the  provisions  of  the 

Judicature  Act  are  repealed. (c) 

(132.)  The  jurisdiction  so  transferred  to  the  High 
Court  of  Justice  is  to  be  exercised  by  its  divisions 
or  by  divisional  courts,  or  by  courts  consisting  of  a 
single  judge.  The  High  Court  of  Justice  itself  does 
not  sit  as  a  court  in  civil  matters,  and  the  word 
"  Court"  throughout  the  Judicature  Act  seems  to 
mean  either  a  divisional  court  or  a  single  judge. ((^) 

(133.)  Any  Judge  of  the  High  Court  of  Justice 
may  (subject  to  any  Rules  of  Court)  exercise  in 
court  or  in  chambers  all  or  any  part  of  the  jurisdic- 
tion vested  in  the  High  Court,  in  all  such  causes 
and  matters,  and  in  all  such  proceedings  in  any 
causes  and  matters  as  before  the  passing  of  the  Act 
mio-ht  have  been  heard  in  court  or  in  chambers 
respectively  by  a  single  judge  of  any  of  the  courts 
whose  jurisdiction  is  hereby  transferred,  or  as  may 
be  directed  or  authorized  to  be  so  heard  by  any  Rules 
of  Court  to  be  made. 

In  all  such  cases,  any  judge  sitting  in  Court  is  to 
be  deemed  to  constitute  a  court,  (e) 

So  any  Judge  of  the  High  Court,  sitting  for  trial 
of  causes  and  issues  in  Dublin,  is  to  be  deemed  a 
Court  of  the  High  Court  of  Justice.(/) 

(134-.)  All  jurisdiction  possessed  by  any  Master  of 
th<i  Court  of  Chancery,  and  all  powers  given  to  any 
ciiancery.    ;p^Xaster  or  Mastcrs  by  any  statute  have  been  trans- 
ferred to  the  High  Court  of  Justice. (r/) 

The  Clerks  or  Masters  in   Chancery   (of  whom 


Jurisdic- 
tion of 
Masters  in 


(c)  J.  A.,  1877,  s.  71. 

(f/)  Kingchurch  v.   People's  Garden  Co.,  L.  R.,  1  C.  V.  D.,  45,  24 
"W.  R.,  41,  vide  ante  (17). 

(0  S.  44.  (/)  S.  33.  G/)  S.  21. 


JUllISDICTION   OF  MASTERS   IN    CHANX'ERY.  109 

the  Master  of  the  Rolls  was  the  chief)  originally  jurisdiction 
assisted  the  Lord  Chancellor  in  framing  and  issuing     %^rt 

writs,  and  latterly  in  working  out  the    details  of      

his  decretal  orders. 

The  statute  28  Geo.  III.,  c.  35,  enacted  that 
where  the  Court  of  Chancery  has  decreed  a  sale  of 
lands  to  a  purchaser,  and  difficulty  arises  as  to  the 
execution  of  any  deed  of  conveyance  by  any  proper 
or  necessary  party  to  the  deed,  who  is  bound  by 
the  decree,  and  ought  to  execute  it,  but  obstinately 
refuses  or  declines  to  execute  the  same,  or  cannot 
be  found,  or  by  being  out  of  the  jurisdiction  cannot 
be  compelled  to  obey  the  decree  or  order,  the  Court 
may  order  one  of  the  Masters  of  the  Court  to 
execute  any  such  deed  by  signing,  sealing,  and 
delivering  the  same  in  the  name  of  the  party  so 
bound  and  ordered  to  execute  it,  and  such  execution 
by  the  Master  is  declared  to  be  a  valid  and  effectual 
execution  in  law  of  the  deed  by  the  person  who 
ought  to  have  executed  it. 

The  statute  4  &  5  Wm.  IV.,  c.  78,  sec.  8,  enacted 
that  when  any  person  who  has  been  directed  by 
any  decree  or  order  of  the  Court  of  Chancery  to 
execute  any  deed  or  other  instrument,  or  make  a 
surrender  or  transfer,  or  to  levy  a  fine  or  suffer  a 
recovery,  if  it  shall  appear  upon  affidavit  to  the 
satisfaction  of  the  Court  that  such  person  refuses, 
declines,  or  neglects  to  execute  same,  the  Court 
may,  after  the  expiration  of  ten  days  from  the 
service  of  the  decree  or  order  personally,  and 
tender  of  such  deed  for  execution,  make  an  order 
upon  motion  in  open  Court  that  one  of  the  Masters 
in  ordinary  of  the  Court  shall  execute  such  deed 
or  other  instrument,  or  make  such  surrender  or 
transfer,  or  levy  such  fine,  or  suffer  such  recovery,  in 
the  name  of  such  person,  and  do  all  acts  necessary 
to   give   validity   and   operation   to   such    fine   or 


110  JUEISDICTION    OF   MASTERS   IN   CHANCERY. 

Jurisdiction  recovery,  and  to  lead   the  uses   thereof,  and   the 

%S'!     execution  of  the  deed,  &c.,  by  the  Master  shall  in 

all  respects  have  the  same  force  and  validity  as  if 

the  same  had  been  made  and  executed,  levied,  or 

suffered  by  the  party  himself. 

These  statutes  as  to  execution  of  deeds  by  a 
Master,  did  not  apply  to  the  case  of  an  infant,  he 
not  being  sui  juris, Qi)  nor  to  that  of  a  married 
woman,  (i)  But  it  was  held  that  an  infant  might 
be  ordered  to  execute  a  deed  'proprio  manu  as  an 
adult, (j)  though  he  could  not  write,  and  an  order 
for  an  attachment  has  been  made  for  his  refusal, 
he  being  of  fifteen  years  of  age, (A;)  and  where  the 
infant  had  refused,  an  order  that  the  Master  do 
execute  has  been  made.(^) 

The  Eenewable  Leasehold  Conversion  Act  (1 2  & 
13  Vict.,  chap.  103,  sec.  27),  contained  a  similar 
provision,  where  the  owner  of  the  reversion  refuses 
to  execute  the  fee-farm  grant,  and  enabled  a  Master 
of  the  Court  of  Chancery  to  execute  on  his  behalf 
under  the  order  of  the  Court. (m) 

The  Chancery  (Ireland)  Act,  1867,  enacted  that 
all  or  any  of  the  powers,  authorities,  and  juris- 
diction given  to  the  Masters  in  ordinary  of  the 
Court  by  any  Act  or  Acts  then  in  force  may  be 
exercised  by  the  Master  of  the  Rolls  and  Vice- 
Ghancellor  respectively. (-/I) 

The  same  Act  (o)  conferred  on  the  Master  of  the 


(Ji)  M'Cartney  v.  Simonton,  5  Ir.  Eq.  Rep.  694,  Ex.  Flood  v.  Sutton. 
Flan,  and  Kel.  179.     Goddard  v.  Macauluy,  6  Ir.  Eq.  Rop.  221,  M.R. 

(0  Nugent  V.  Piers,  12  Ir.  Eq.  Rep.,  1!)«,  M.R. 

(/)  Jones  V.  Ham.,  3  Ir.  Eq.  Rep.,  G8,  Ex.  Archbold  v.  Rice,  5 
Ir.  Eq.  Rep.,  33,  Ex.     Henry  v.  Rankin,  4  Ir.  Eq.  Rep.  GSl,  E.\;. 

(JS)  M'Cartney  v.  Simonton,  uhi  supra. 

(I)  Goddard  v.  IMacauley,  6  Ir.  Eq.  Kep.,  223. 

(to)  See  Kx  ■parte  Guerin,  Ir.  Rep.,  4  Eq.,  407,  M.R. 

(n);50&  31  Vic,  c.  44,  s.  143. 

io)  lb.,  s.  144. 


RECEIVER-MASTER — CHANCERY   BUSINESS.  Ill 

Rolls    and   Vice-Chancellor    respectively    all     the  Jurisdiction 
special  powers  for  winding  up  causes  and  matters     caurt. 
depending  before  them  respectively  in   chambers, 
which   the   Masters   in   Chancery   acquired   under 
sections  31  to  38  of  the  Chancery  Act. 

The  pov^ers  of  executing  deeds  on  behalf  of 
owners  who  refuse  to  obey  the  order  of  the  Court, 
have  Mien  into  partial  disuse  by  reason  of  the 
Trustee  Acts,  1850  and  1852.  Section  29  of  the 
Trustee  Act,  1850,  enabled  the  Court  of  Chancery 
to  declare  parties  seized  of  lands  ordered  to  be  sold, 
to  be  deemed  trustees  of  same,  and  by  its  mere 
order  to  vest  the  lands  in  the  purchaser.  Section 
30  contains  a  similar  provision  where  the  Court 
decrees  specitic  performance  of  a  contract  for  sale  of 
lands,  or  a  partition  or  exchange.  The  Trustee  Act, 
1852,  sec.  1,  enacts  that  generally  in  all  cases 
where  a  decree  or  order  is  made  directing  a  sale  of 
lands  for  any  purpose,  all  persons  seized  of  the 
lands,  and  bound  by  the  decree  shall  be  deemed 
trustees  of  it,  and  the  Court  is  enabled  to  make 
vesting  orders  in  favour  of  the  purchaser. 

(135.)  Upon  the  death,  resignation,  or  release  of  chancery 

..  .  /\ii  I,  ii         matters  in 

the  existing  Receiver-Master,(2:>)  all  matters  other  Receiver- 
than  his  duties  as  a  Master  in  Lunacy, (5)  and  in  omce!^ 
reference  to  the  management  of  estates  and  super- 
vision of  Receivers,(r)  and  the  audit  of  public  ac- 
counts,(.§)  which  shall  be  then  pending  in  the  office  of 
the  Receiver-Master  shall,  subject  to  rules  of  Com-t 
and  to  the  power  of  transfer,  be  distributed  among 
the  Judges  of  the  Chancery  Division  of  the  High 
Court  as  the  Lord  Chancellor,  with  the  concurrence 
of  any  two  of  the  judges  of  that  division  shall 
direct.  (^) 

(136.)  Upon  the  death,  resignation,  or  release  of  Receiver 

— — business. 

(j-j)  As  to  which  see  ante  (76).  (5)  See  Chapter  xii. 

(»•)  See  Chapter  xiv.      («)  See  infra  137.     {t)  J.  A.,  1877,  s  75,  §  3. 


112 


AUDIT  OF   PUBLIC   ACCOUNTS. 


Court. 


Jurisdiction  tliG  existing  Receiver-Master(it)  the  powers  and 
of  High  ^i^^-gg  vested  in  and  performed  by  him  in  reference 
to  the  management  of  lauded  estates  and  the  super- 
vision and  control  of  receivers  over  the  same,  are 
to  be  exercised  by  the  Land  Judges,  or  the  junior  of 
them,  so  long  as  there  are  two,(t')  and  all  matters  and 
business  which  shall  be  then  pending  in  the  office 
of  such  Receiver-Master,  in  reference  to  receivers 
appointed  over  any  estates,  by  or  in  pursuance  of 
any  order  of  the  Court  of  Chancery,  or  of  the  Lord 
Chancellor  acting  in  Lunacy,  and  the  accounting  of 
such  receivers,  and  the  letting  and  management  of 
the  estates  over  which  any  such  receivers  shall  have 
been  appointed,  shall  be  thereupon  transferred  to  the 
Land  Judges,  and  shall  thenceforth,  subject  to  any 
rules  of  Court  to  be  made  by  the  Lord  Chancellor, 
with  the  concurrence  of  the  Land  Judges  or  either 
of  them,  be  prosecuted  and  conducted  before  such 
judges  or  one  of  them,  in  the  same  manner  as  the 
same  would  have  been  prosecuted  or  conducted  be- 
fore the  Receiver-Master  heretofore. (ly) 

(137.)  The  jurisdiction  of  the  Receiver-Master  to 
audit  certain  public  accounts  (including  the  accounts 
of  the  Commissioners  of  Charitable  Donations  and 
Bequests  in  Ireland),  and  ever}--  other  jurisdiction 
not  in  reference  to  causes  or  matters,  or  proceedings 
in  Chancery  vested  in  him  shall  (unless  the  Lord 
Lieutenant  in  Council  shall  otherwise  direct),  after 
the  death,  resignation  or  release  of  the  existing 
Receiver-Master  vest  in  and  be  exercised  by  the 
Local  Government  Board  of  Ireland,  subject  to  such 
rules  and  regulations  as  the  Lord  Lieutenant  in 
Council  may  see  lit  to  provide.(x) 
Authority  (138.)  Generally,  until  not  otherwise  specially 
tTiii'i"-^  provided,  where  a  liability  to    any    duty,  or   any 

tratiou  of ~    '     ^      ~  [ 

justice.  (u)    Vide  ante  (135).  ((-■)  J.  A.,  1677,  s.  7.>,  §  13. 


Audit  of 

public 

accounts. 


(w)  lb.,  s.  75,  §  2. 


(x)  lb.,  s.  75,  §.  8. 


GENERAL  AUTHORITY.  113 

power  or  authority  not  incident  to  the  administra-  jurisdiction 
tion  of  justice  has  been  imposed  or  conferred  by  any  court. 
statute,  law,  or  custom  upon  the  judges  or  any  judge 
of  a  court  whose  jurisdiction  is  now  transferred  to 
the  High  Court,  every  judge  of  the  latter  court  is, 
unless  otherwise  expressed  by  the  Act,  capable  of 
performing  and  exercising  and  is  liable  to  perform 
and  empowered  to  exercise  every  such  duty, 
authority,  and  power  in  the  same  manner  as  if  the 
Act  had  not  passed,  and  as  if  such  judge  had  been 
appointed  the  successor  of  the  judge  liable  to  such 
duty  or  possessing  such  authority  or  power  before 
the  passing  of  the  Act.  But  where  the  duty, 
authority,  or  power  happens  to  be  imposed  or  con- 
ferred on  the  Lord  Chancellor,  the  Lord  Chief 
Justice,  the  Master  of  the  Rolls,  the  Lord  Chief 
Justice  of  the  Common  Pleas,  or  the  Lord  Chief 
Baron,  it  will  still  continue  to  be  performed  and 
exercised  by  them  respectively,  and  by  their  respec- 
tive successors,  in  the  same  manner  as  if  the  Act 
had  not  passed.  (^) 


CHAPTER  XI. 

Jurisdiction  not  transferred  to  High  Court 
OF  Justice. 

139.  Appellate  Jurisdiction,  p.  113. 

140.  Prerogative  Jurisdiction,  114. 

141.  Visitorial  Jurisdiction,  114. 

142.  Record  Jurisdiction  of  tlie  Master  of  the  Rolls,  114. 


(139.)  The  appellate  jurisdiction  of  the  Court  of  Jurisdic- 
Appeal  in  Chancery,  or  of  the  same  Court  si  tting  as  chancery 
a  Court  of  Appeal  from  the  Court  of  Probate,  the  co^^ 
Court   for   Matrimonial   Causes   and   Matters,   the 
Landed  Estates  Court,  the  Court  of  Bankruptcy,  or 

0)  J.  A.,  1877,  s.  16. 


114  PREROGATIVE   WRITS — VISITORIAL   JURISDICTION. 

Jurisdiction  the  High  Couvt  of  Admiralty,  is  not  transferred  to 

jerred.     the  High  Court  of  Justice.(a) 
Prei^tive      (14)0.)  The  jurisdiction  vested  in  the  Lord  Chan- 
wiits:         cellor  in  relation  to  grants  of  Letters  Patent  or  the 

Letters 

Patent.       issue  of  Commissions  or  other  writings  under  the 
Commis-     Great  Seal  of  Ireland,  is  not  transferred  to  the  High 
Court.(6) 

This  reservation   would  seem   to   include   Com- 
missions de  lunatico  inquirendo,  Commissions  of 
the  Peace  and  Supersedeas,  for  Assizes  and  General 
Gaol  Delivery,  for  swearing  in  high  functionaries, 
such  as  Judges  and  Lieutenants  of  counties. 
Writs  De         Writs  De  coronatore  eligendo  are  issued  under 
eiiyendo,  et  the  Great  Seal  on  certificate  to  the  Lord  Chancellor 
ej,oiteran    .  ^£  ^  vacancy  from  the  Foreman  of  the  Grand  Jury 
or  two  Justices  of  the  county,  or  on  memorial  from 
the  Grand  Jury  on  loss  of  qualification ;(c)  and  writs 
Be  coronatore  exonerando  are  also  issued  to  remove 
a  coroner  for   misconduct  or  non-residence  in  his 
county.     The  latter  writ  is  usually  accompanied  by 
the  writ  De  core,  eligendo. (d) 
Lord  Chan-       (141.)  Any  iurisdictiou   exercised   bv  the   Lord 

cellor's  \  /  J    J  - 

yisitoriai      Chanccllor  in  right  of  or  on  behalf  of  Her  Majesty, 
tion,  as  visitor  of  any  college  or  of  any  charitable  or 

other  foundation,  is   not  transferred  to  the   High 

Court  of  Justice. (e) 
Master  of         (142.)  Any  jurisdiction   of  the   Master   of    the 
Record       Rolls  in  relation  to  records  in  Dublin  or  elsewhere  in 
tion.  Ireland  is  not  transfeiTed.(/)  It  would  seem  that  the 

jurisdiction  conferred  on  the  Master  of  the  Rolls  by 

(a)  J.  A.,  1877,  s.  22,  §(1).     (6)  s.  22,  §  (3).      (c)  9&  10  Vic.,c.  36. 

(d)  Ex  parte  Coroner  West  Riding  of  Cork,  1  L.  R.  O.S.,  373; 
Attorney-General  v.  Pasley,  3  Dr.  &  War.  34 ;  Ex  parte  Parnell,  1 
Jac.  &  W.  451, 

(«)  S.  22,  §  r4). 

(/)  Jb.  §  (5);  see  Johnson's  Patent,  L.R.,  5  Ch.  0.,  503,  M.  R.;  and 
in  re  Morgan's  Patent,  24,  W.R.,  24,  W.N.,  1876,  27,  M.  R. 


RECORD   JURISDICTION    OF   MASTER   OF   ROLLS.  115 

certain  Acts,  e.g.,  Improvement  of  Land  Act,  1864,  JuHsdictwn 
under  -whicli  the  petition  should  be  addressed  and     /erred. 
presented  to  him  personally,  (^)  is  transferred  to  the 
Supreme  Court  of  Judicature. 


CHAPTER  XII. 
The  Lux  act  Jurisdiction. 

143.  Special  Jurisdiction  under  Queen's  Letter,  p.  115. 

144.  At  Common  Law,  117. 

145.  Authority  Ministerial,  117. 

146.  Appeal  from,  117. 

147.  Officers  in  Lunacy,  117. 

148.  Receiver-Master's  Duties,  118. 

14'J.  Analogous  Jurisdiction  in  other  Divisions,  118. 
1.50.  Statutory  Jurisdiction  and  Trustee  Acts,  120. 

151.  Chancery  Appointment  of  new  Trustee  in  lieu  of  a  Lunatic 

Trustee,  120. 

152.  Divesting  Order  of  Estate  of  a  Lunatic  in  Chancery,  124, 

153.  Appointment  of  Trustees  in  Lunacy,  120. 

154.  Diverting  Estate  of  Lunatic  in  Lunacy,  127. 

155.  Appointing  Person  to  convey,  127. 

156.  Divesting  Stock  and  Choses  in  Action  in  Lunacy,  127. 

157.  When  both  Objects  can  be  attained  in  Lunacy,  128. 

158.  Territorial  Limits  of  the  Jurisdiction,  131. 

159.  Exercise    of   powers   of  Appointment    of   Trustees   vested    in 

Lunatic  donee,  132. 


(143.)  The  iurisdiction   usually   vested    in    the  Special 

.  .  1  i?      1       jurisdic- 

Lord  Chancellor,  in  relation  to  the  custody  of  the  tionin 
persons  and  estates  of  idiots,  lunatics,  and  persons 
of  unsound  mind,  is  not  transferred  to  the  High 
Court  of  Justice,  (a)  and  will  still  be  exercised 
usually  by  the  Lord  Chancellor  in  the  lunacy 
department. 

The  jurisdiction  in  lunacy  is  so  far  intermixed 
and  impinges  on  the  Chancery  jurisdiction  in  certain 
matters,  that  it  may  be  useful  to  define  and  distin- 
guish them  in  so  far  as  they  approach  each  other. 

The  Lord  Chancellor  has  usually,  but  not  neces- 
sarily, vested  in  him  by  special  letters,  under  the 

0)  Ex  parte  DiUon,  Ir.  Rep.,  7  Eq.,  443,  M.  R. 
(a)  J.  A.,  1877,  s.  22,  subs.  (2). 


116  SPECIAL  JURISDICTION   IN   LUNACY. 

Lunacy     J{,oyal  Sign  Manual,  countersigned  by  two  or  more 
tion.       Lords  of  the  Treasury,  the  care  and  commitment  of 
the   persons   and   estates   of    idiots,   lunatics,   and 
persons  of  unsound  mind. 

Before  the  Lunacy  Regulation  (Ireland)  Act, 
1871,  the  authority  of  the  Lord  Chancellor  in 
lunacy,  except  as  to  issue  of  the  commission,  com- 
menced with  the  finding  of  a  jury  on  inquisition, 
without  which  he  had  no  power  to  take  on  himself 
the  care  of  the  person  or  property  of  an  individual 
on  the  ground  of  his  being  of  unsound  mind,(6) 
and  the  jurisdiction  ceased  with  the  life  of  the 
lunatic,  except  so  far  as  to  making  the  committee 
of  the  estate  account. (c) 

In  some  few  cases  of  special  emergency,  orders 
had  been  made  to  protect  the  property  or  person  of 
lunatics  and  persons  of  unsound  mind  pending  a 
commission  which  was  awarded,  ex.  gr.,  to  prevent 
the  lunatic  being  taken  out  of  the  jurisdiction,((i) 
or  his  property  being  made  away  with  ;(e)  but 
such  orders  were  provisional  and  ad  interim,  and 
to  prevent  the  jurisdiction  being  fraudulently 
defeated.  In  one  case  the  commission  thus  awarded 
had  been  suspended  as  to  its  execution  for  a  con- 
siderable time  on  the  ground  of  the  great  age  and 
infirmity  of  the  party  whose  health  might  be 
affected  by  its  execution,(/)  but  the  prolonged 
continuance  of  this  state  of  things  was  deemed  of 
doubtful  legality,  and  the  Lunacy  Regulation  Act 
has  enabled  the  Lord  Chancellor  to  act  before  a  com- 
mission is  issued  or  executed. 

(6)  See  now  34  Vic,  c.  22. 

(c)  In  re  Barrj-,  1  Mol.  414 ;  see  in  re  Fitzgerald,  2  Sch.  and  Sef. 
441 ;  but  see  now  Lunacy  Regulation  (Ireland)  Act,  1871,  ss.  52, 
64,  65. 

(d)  In  re  Costelloe,  L.  C.  O'llagan,  19  December,  1870. 

(e)  In  re  Heli,  3  Atk.  635. 

(/)  In  re  Lawler,  L.  C.  Blackburne,  27  A.pril,  18G7. 


COMMON   LAW  JURISDICTION   IN   LUNACY,  117 

(144.)  The  Lord  Chancellor's  action  in  matters  of    Lunnc;/ 

lunacy  is  not  exclusively  under  the  powers  conferred      twli^' 

by  the  Queen's  Letters.     As  Keeper  of  the  Great  con^n 

Seal  he  issues  the  commission  which  is  in  the  nature  la^  Juris- 
diction. 

of  a  writ  de  lunatico  inquirendo,  and  as  incident  to 
his  office  he  has  power  to  control  the  execution  of 
the  commission,  and  make  orders  relating  to  the 
superintendence  and  conduct  of  the  committee,  and 
the  management  both  of  the  person  and  property  of 
the  lunatic,  and  these  orders  being  founded  on  his 
Common  Law  Jurisdiction  were  perhaps  subject  to 
review  in  the  House  of  Lords  by  Writ  of  Error.  (^) 

(1 45.)  The  authority  conferred  by  the  letters  in  Authority 
lunacy  is  chiefly  ministerial  and  administrative.    So 
far  so  that  the  Lord  Chancellor  may  act  ex  mero  motu, 
or  on  any  private  information  that  may  reach  him.(^) 

(14G.)  The  appeal  from  his  acts  in  this  behalf  is  Appeal 
to  the  Queen  in  her  Privy  Council  in  England,  and 
not  to  the  House  of  Lords,  ex.  gr.,  from  an  order 
appointing  a  committee  or  directing  payments  to  be 
made  in  the  management  of  the  estate.(i) 

The  English  Judicature  Act  gives  an  appeal  now 
from  the  order  of  the  Lord  Chancellor  or  Lords 
Justices  intrusted  in  lunacy,  to  the  new  Court  of 
Appeal,  but  the  Irish  Judicature  Act  has  not  done  so. 

(147.)  The    Judicature  Act  {j)  enacts  that  the  officers  la 
officers  in  the  Lunacy  Department  shall  continue  "^^^" 
attached  to    the   Lord  Chancellor    as  before,   and 
confers  power  on  the  Lord  Chancellor  with  the  con- 

(^g)  Corporation  of  Burford  u.  Lenthall,  2  Atk.  553,  per  Lord  Hard- 
wicke.  In  re  Fitzgerald,  2  Sch.  and  Lef.  438,  per  Lord  Redesdale;  and 
see  Lord  Campbell's  Lives  of  the  Chancellors,  vol.  1,  p.  13,  Edition  of 
1857,  3  Blacks.  Com.  427. 

(A)  In  re  Persse,  1  Mol.  219 ;  see  Anon.  4  L.  R.  0.  S.  127,  per  Lord 
Pluuket. 

(t)  Rochfort  V.  Ely,  1  Brown  P.  C.  450.  See  In  re  Lord  Lanes- 
borough,  Beatty,  638,  where  orders  of  Privy  Council  reversing  Lord 
Chancellor  are  mentioned. 

(/)  J.  A.,  1877,  s.  82. 


118 


ANALOGOUS  JURISDICTION   IN   OTHER   COURTS. 


Lunanj 
Jurisdic- 
tion. 


Duties  of 
Receiver- 
Master. 


Juris- 
diction 

analo.srous 
to  tliat  iu 
lunacy. 


cuiTence  of  the  Treasury  to  abolish  or  alter  the 
duties  and  designation  of  any  of  the  officers  in  the 
Lunacy  Department,  and  to  fix  the  salaries  of  such  as 
may  be  retained,  saving  the  rights  of  existing  officers. 

(148.)  The  powers  and  duties  in  lunacy  matters 
vested  in  and  performed  by  the  Receiver-Master, 
other  than  those  connected  with  land,  after  a 
vacancy  in  the  office  of  Receiver-Master,  are  thence- 
forth to  be  exercised  and  performed  by  the  Lord 
Chancellor  and  the  officers  attached  to  him  accord- 
ing to  the  course  of  procedure  in  his  court  and 
offices.(/c)  The  duties  and  business  as  to  Receivers 
appointed  in  lunacy  will  be  transferred  to  the  junior 
of  the  Land  Judges. (^) 

(149.)  The  Court  of  Chancery,  and  the  Courts  of 
Common  Law  at  times,  exercised  a  power  to  make 
orders  respecting  the  application  of  moneys  belong- 
ing to  persons  of  unsound  mind,  and  who  happened 
to  be  parties  in  suits  or  matters  pending  before 
them,  not  very  unlike  the  peculiar  jurisdiction  of 
the  Lord  Chancellor  in  Lunacy,  (w)  and  where 
the  amount  of  property  w^as  small,  to  avoid  the 
expense  of  a  Commission  in  Lunacy,  the  court  has 
directed  an  inquiry  into  the  state  of  mind  and  body 
of  the  party  affected,  by  whom  he  had  been  taken 
care  of,  what  would  be  a  proper  amount  to  be  ex- 
pended on  his  future  maintenance,  and  to  whom  it 
should  be  paid.('n) 

In  other  cases  where  an  inquiry  was  deemed  to 
be  unnecessary,  dividends  have  been  paid  to  the 
next  friend  or  nearest  relation  of  an  idiot  on  his 
undertaking  to  apply  them  properly.(o)    Surplus  in- 


(k)  J.  A.,  1877,  8.  75,  §  ].  (0  IL,  §  13. 

(to)  See  Light  v.  Light,  25  Bear.,  248. 

(n)  Knox  v.  Walters,  10  Ir.  Eq.  Rep.  358,  L.  C. 

(o)  Carr  v.  Boyce,  13  Ir.  Eq.  Rep.,  102,  L.  C.  Volan.s  v.  Carr,  2 
De  Gex  and  Sma.  242.  See  In  re  Burke,  2  De  Gex  F.  and  Jo.,  124. 
In  re  Berry  13  Beav.  455.     Conduit  v.  Soane,  5  Myl.  and  Cr.  11. 


ANALOGOUS   JURISDICTION   IN   OTHER  COURTS.  119 

eome  has  been  applied  towards  payment  of  debts  in-  Lunacy 
curredfor  past  maintenance  of  a  lunatic  defendant.Q^)  tion. 
but  it  was  considered  questionable,  whether  any 
judge  but  the  Lord  Chancellor,  intrusted  by  the 
Queen's  letters  in  lunacy,  could  dispose  of  surplus 
property  for  the  benefit  of  relations  of  the  party  as 
the  Lord  Chancellor  might  do  in  lunacy,  although 
somethino:  like  this  was  done  on  more  than  one 
occasion. (g)  Where  the  capital  of  the  fund  was  very 
small  it  has  been  handed  over  altogether  to  be 
applied  for  the  benefit  of  the  lunatic.(7-)  This  juris- 
diction has  been  exercised  in  regard  to  persons  in- 
capable of  managing  their  own  affairs,  from  infirmity 
of  age,(.9)  or  from  being  deaf  and  dumb.(f) 

This  jurisdiction,  however,  was  exercised  only  in 
respect  of  property  actually  in  Court  and  under  the 
administration  of  the  Court  in  some  cause  or 
matter  ;(m-)  it  might  be  a  trustee  relief  matter,(i') 
or  an  action  at  common  law.  (it?) 

The  Chancery  Division  of  the  High  Court  of 
Justice  can,  in  like  manner,  make  orders  relating  to 
the  past  and  future  maintenance  and  support  of 
persons  of  unsound  mind  not  so  found  by  inquisi- 
tion, where  the  property  is  small  and  under  the 
control  of  the  Court,  and  there  is  no  likelihood  of  a 
Commission  in  Lunacy.(a::) 

{p)  Wilkinson  v.  Letch,  2  Coop.  temp.  Cotteuham,  11*5.  Machin  v. 
Salkeld,  ib.  148.     See  Edwards  v.  Abrey,  2  Ph.  37. 

{q)  Graves  v.  Chamney,  L.  C.  O'Hagan,  20  Nov.,  1869.  See  also 
Hewson  v.  Guinness,  5  March,  1870. 

(r)  Ex  parte  White,  Ir.  Rep.,  6  Eq.  82  ;  a  case  under  the  Lunacy 
Regulation  Act,  1871. 

is)  Eldridge  v.  Croucher,  2  Coop.  Cottenh.,  196. 

(0  In  re  Biddulph,  5  De  Gex  and  Sm.  469. 

(m)  See{«  reTaylerper  L.J.Turner,  2  De  Gex,  Fish,  and  Jo.,  at  p.  127. 

(y)  In  re  Macfarlane,  2  J.  and  H.  473.  In  re  Burke,  2  De  Gex,  F. 
and  Jo.  124.     Whitby's  Trusts,  W.  N.,  1877,  208,  V.C.M. 

(w)  Little  V.  Stewart,  Ir.  Rep.  1  C.  L.  Ex.  566. 

(x)  See  Vane  v.  Vane,  L.  R.  2  Ch.  D   124 ;  24  W.  R.  602,  M.  R. 


120 


STATUTORY  JURISDICTION   IN   LUNACY. 


Lunacy 

Jurisdii' 

Hon. 


Statutory 
jurisdic- 
tion. 


Chancery 
appoiut- 
meut  of 
nf w  trustee 
in  lieu  of  a 
luuatic. 


But,  on  the  other  hand,  mere  lunacy  or  unsound- 
ness of  mind  does  not  as  infancy  does,  per  se  afford 
jurisdiction  to  the  Chancery  Division,  and  it  cannot 
undertake  the  management  of  the  estate  of  a  living 
person.  (2/) 

(150.)  The  Lord  Chancellor,  in  his  character  as 
delegate,  intrusted  with  the  care  and  custody  of 
lunatics,  has  conferred  on  him  by  statute  law,  certain 
special  powers,  especially  by  the  Trustee  Act,  1850, 
sections  3,  4,  5,  10,  20, 32,  33  and  34,  and  the  Trustee 
Act,  1852,  sections  9,  10,  chiefly  for  the  purpose  of 
vesting  estates  of  trustees  who  have  become  lunatic 
(including  persons  of  unsound  mind  though  not 
found  to  be  lunatic  or  incapable  of  managing  their 
own  affairs.)  These  functions  are  peculiar  to  the 
Lord  Chancellor,  and  could  not  be  exercised  by 
any  other  Chancery  Judge, (z)  and  the  language  of 
the  J.  A.,  1877,  sec.  22,  subs.  (2)  would  seem  to 
reserve  them  still  to  the  Lord  Chancellor. 

By  the  not  over-precise  language  of  the  Trustee  Acts, 
the  lunacy  and  chancery  j  urisdictions  are  somewhat 
intermixed,  if  not  confused,  and  this  has  occasioned 
a  considerable  number  of  decisions  by  no  means  easy 
to  understand  or  to  reconcile  with  one  another. 

(151.)  The  Court  of  Chancery  (as  distinguished 
from  the  Lord  Chancellor  intrusted  in  Lunacy),  had 
under  the  T,  A.,  1850,  in  analogy  to  its  ancient  juris- 
diction, exclusive  powers  to  appoint  new  trustees 
in  all  cases,  including  the  case  of  incapacity  by  the 
unsoundness  of  mind  of  an  existing  trustee.  Under 
the  32nd  section  of  the  T.  A.,  1850,  in  all  cases  of 
difficulty,  including  cases  in  which  there  was  no 
power  to  api)oint  new  trustees  contained  in  the 
instrument  creating  the  trust,  or  where  the  donee 


(>/)  Bealli).  Smith,  L.  R.,  9  Ch.  95. 
(z)  See  Smith's  Trusts,  Ir.   Kep.  i   Eq. 
Moorhead,  Ir.  Rep.  2  Eq.  492. 


180,  }l.  R. ;  Moorhead   v. 


APPOINTING  TRUSTEE  INSTEAD   OF  LUNATIC.  121 

of  the  power  was  dead,(6)  or  was  resident  abroad  uwony 
or  disclaimed,(c)  or  was  incapable  of  exercising  ex.  tion 
gr.  by  being  a  hinatic.  In  all  these  cases,  a  difficulty 
arose  within  the  terms  of  s.  82,  enabling  the  Court 
of  Chancery  to  appoint  the  trustee.(c?)  But  not  so 
where  there  was  a  donee  of  a  power  living  and  able 
and  willing  to  exercise  it.(e)  Where  the  power  to 
appoint  was  exercisable  by  the  surviving  trustees, 
and  one  of  them  was  incapable  of  exercising  it,  by 
reason  of  lunacy,  a  jurisdiction  arose  in  the  Court  of 
Chancery  to  appoint  new  trustees  not  by  exercising 
the  power  conferred  on  the  lunatic  by  the  deed, 
but  by  an  independent  statutory  power  under  sec- 
tion 32.(/)  Where,  however,  a  power  was  con- 
ferred on  the  trustees  for  the  time  being,  to  appoint 
in  lieu  of  a  trustee  dead  or  incapable  of  acting,  the 
capable  trustee  was  authorized  to  execute  the 
power,((7)  and  the  Court  of  Chancery  would  in  such 
a  case  decline  to  interfere. (^) 

Where  the  order  to  appoint  a  new  trustee  is 
founded  upon  the  fact  of  an  existing  trustee  being  a 
lunatic,  and  the  fact  is  disputed  or  uncertain,  a  diffi- 
cidty  would  seem  to  arise  as  regards  the  safety  of  an 
order  made  by  the  Court  of  Chancery  to  appoint 
under  such  circumstances,  as  it  will  be  observed 
that  the  language  of  T.  A.,  1850,  sec.  44,  which 
makes  certain  allegations, e.^r.  the  personal  incapacity 
of  the  trustee,  on  the  faith  of  which  the  order  is 
made,  conclusive  evidence  of  the  matter  so  alleged, 
seems  to  point  to  a  vesting  order  rather  than  an 


(6)  Inre  Boyce,  4  De  Gex,  Jo.  &  Smith,  207;  10  Jur.  N.  S.,  138;  12 
W.  R.,  359. 

(0  In  re  Humphrey's  Estate,  1  Jur.  N.  S.  921,  V.  C.  W. 

{d)  In  re  Sparrow,  L.  R.  5  Ch.  662,  followed  in  Morgan's  Trusts,  L. 
0.  O'Hagan,  10  May,  1873. 

(e)  In  re  Hodson,  9  Hare,  118. 

if)  In  re  Vickers,  L.  R.  3  Ch.  D.  112. 

(^)  See  in  re  East,  L.  R.  8  Ch.  735. 

G 


122  APPOINTING  TRUSTEE  INSTEAD   OF   LUNATIC. 

i.tinacy  Order  to  appoint  new  tiiistees,(/t)  and  the  power 
tion.  to  direct  a  commission  de  lunatico  is,  under  sec.  52, 
confined  to  the  Lord  Chancellor,  intrusted  a  power 
which  it  would  l3e  very  undesirable  to  exercise  for 
such  a  purpose,  involving  the  family  of  the  lunatic 
trustee  in  a  controversy  in  which  they  had  no  sort 
of  interest.(^) 

But  apart  from  this,  when  the  object  is  merely  to 
fill  up  the  place  of  a  lunatic  trustee  or  mortgagee,  and 
no  vesting  order  is  sought  for  or  necessary,  and  no 
appointment  under  a  power  is  attainable,  the  order 
should  be  had  by  petition  to  the  Chancery  Division 
alone  and  not  to  the  Lord  Chancellor  intrusted  in 
lunacy.(^')  Probably  there  are  not  many  cases  of  this 
nature,  as  a  vesting  order  is  generally  required,  but 
where,  for  example,  the  legal  estate  in  the  trust 
fund  is  outstanding  in  a  third  person,  and  may  be 
obtained  by  direct  conveyance  without  a  vesting 
order,  the  application  should  be  to  Chancery,  (/v) 

In  the  case  of  In  re  Burton(/)  and  in  some  other 
cases(^)  it  is  stated  in  the  report,  that  a  petition  to 
appoint  a  new  trustee  in  the  place  of  one  who  has 
become  lunatic  or  imbecile,  and  not  been  so  found 
by  inquisition,  can  only  be  disposed  of  by  the  Lord 
Chancellor  in  Lunacy,  but  the  proposition  seems  to 
be  put  too  broadly,  although  probably  on  the  facts  of 
each  of  the  cases  (the  trustee  in  In  re  Burton  refusing 
to  sign  checks,  &c.),  a  vesting  order  was  also  required, 
and  for  this  purpose  the  lunacy  jurisdiction  would 
certainly  be  required  in  order  to  make  a  complete 
or  useful  order. 

In  one  of  the  earliest  cases,  "Oraierod's  Will"(m) 

(/i)  And  see  in  re  Shorrock's  Trusts,  1  Myl.  &  Cr.  31.  See  in  re 
Walker,  Cr.  &  Ph.  147. 

(i)  See  in  re  Walker,  ttbi  supra. 

0')  In  re  Vickers,  L.  R.  3  Ch.  D.  112.  (/)  //;. 

(0  In  re  Burton,  Ir.  Rep.  6  Eq.  270,  V.  C,  following  the  case  of  in 
re  Good  Intent  Society,  2  W.  R.  671. 

(m)  Onnerod's  WUl,  3  De  Gex  and  Jo.  249. 


APPOINTING  TRUSTEE  INSTEAD   OF  LUNATIC.  123 

the  Lords  Justices  Turner  and  Knight  Bruce,  are  Lunocu 
reported  to  say  that  it  was  settled  by  the  decided  uon. 
cases  that  the  power  to  appoint  new  trustees  in  the 
place  of  persons  of  unsound  mind,  not  so  found  by 
inquisition,  is  by  the  Trustee  Acts  given,  not  to  the 
Court  of  Chancery,  but  to  the  Lord  Chancellor  in- 
trusted in  Lunacy.  In  that  case,  the  trust  estate  was 
vested  in  the  lunatic  and  two  other  trustees.  It 
was  therefore  necessary  to  have  resort  to  the  Lunacy 
jurisdiction  to  divest  whatever  estate  was  in  the 
lunatic,  and  it  does  not  appear  from  the  report, 
whether  the  order  afterwards  was  made  in  Lunacy 
alone,  or  in  Chancery  and  Lunacy;  nor  did  the  diffi- 
culty suggested  in  Pearson's  CQ&e,,(n)  by  Lord  Justice 
James,  viz. :  that  if  the  order  was  made  in  Lunacy 
alone  it  could  not  affect  the  estate  of  the  two  con- 
tinuing trustees,  and  would  sever  the  joint  tenancy, 
appear  to  be  present  to  the  mind  of  the  court.  At  all 
events  the  broad  proposition  laid  down  in  the  case(o) 
is  entirely  inconsistent  with  the  current  of  later 
cases  and  with  the  precise  terms  of  the  Trustee  Acts. 
Where  a  trustee  is  already  appointed  under  a  power, 
it  does  not  seem  clear  whether  the  Court  of 
Chancery  will  go  through  the  fictitious  process  of 
re-appointing  him  for  the  purpose  of  making  a 
vesting  order  under  the  T.  A.,  1850,  s.  34,  or  will 
hondjide  appoint  one  or  more  new  trustees,  (p)  In 
the  latest  case  of  a  petition  to  vest  leaseholds  under 
s,  34  in  trustees  appointed  under  a  power,  the  last 
survi\dng  trustee  being  dead  and  having  no  repre- 
sentative, the  Court  of  Appeal  refused  to  comply 

(n)  /n  re  Pearson,  a  lunatic,  L.  R.  b  Ch.  D.  982,  25  W.  E.,  853,  L.JJ. 

(o)  See  in  re  Vicars,  L.  R.  3  Cli.  D    112. 
■    (p)  In  re  Drivers'  settlement,  L.  R.,  19  Eq.,  352.     In   re  Butter- 
•worths'  trusts,  9  Ir.  Law  Times,  65,  contra.     In  re  Mundel's  trusts,  8 
W.  R.  683.     In  re  Morris'  settlement,  4  N.  R.  480 ;  and  see  the  case  of 
in  re  Jones,  L.  R.,  2  Ch.  71,  L.JJ.,  infra,  p.  127. 

G  2 


trustee  in 
Chancery. 


124  DIVESTING   ESTATE   OF    A   LUNATIC   TRUSTEE. 

Luiiacy    with  the  prayer,  and  ordered  the  petition  to  be 
tio7i.      amended  for  a  re-appomtment  of  the  new  trustees 
on  a  proper  affidavit  of  their  fitness,  (q) 
Divesting         (152.)  But  where  the  principal  object  is,  as  it 
lunatic        usually  is,  to  divest  an  estate  vested  in  a  lunatic 
trustee   or  mortgagee,  resort  must  be  had  to   the 
jurisdiction   of  the  Lord    Chancellor  intrusted   in 
Lunacy  (r)  with  one  or  two  exceptions  to  be  men- 
tioned presently. 

The  first  exception  is  where  a  trustee  or  mort- 
gagee is  a  person  of  unsound  mind  but  not  found 
a  lunatic  and  happens  also  to  be  an  infant ;  in  that 
case,  the  jurisdiction  both  to  appoint  the  new  trustee 
and  to  transfer  the  estate  vested  in  the  former 
belongs  to  the  Chancery  Division.  This  is  from  the 
terms  of  the  definition  of  "a  person  of  unsound 
mind,"  which  excludes  the  case  of  an  infant,  whilst 
the  power  to  divest  the  estate  of  an  infant  trustee 
in  land  is  given  to  the  Court  of  Chancery  by  T.  A., 
1850,  s.  7,  and  in  personalty  by  T.  A.,  1852,  s.  3  ;  (.s) 
but  there  is  no  similar  exception  in  respect  of  an 
infant  trustee  found  by  inquisition  to  be  a  lunatic, 
nor  in  respect  of  a  lunatic  trustee  being  resident 
out  of  the  jurisdiction,  (t) 

Another  apparent  exception  to  the  exclusive  juris- 
diction of  the  Lord  Chancellor  intrusted  in  Lunacy 
to  divest  the  estate  of  a  lunatic  or  person  of  unsound 
mind,  being  a  trustee,  is  created  by  the  T.  A.,  1852, 
s.  1,  under  which,  when  the  Chancery  Division  by 
decree  or  order  directs  the  sale  of  lands  for  any 
purpose  (the  T.  A.,  1850,  s.  29,  was  confined  to  sales 
for  payment  of  debts)  "  every  person  being  a  party 
and  bound,  is  to  be  deertied  a  trtistee  seized  or  pos- 

(7)  In  re  Dalgleish,  I.  R.  4  Ch.  D.,  143 ;  25  W.  R.  122,  A.  C. 
(/•)  In  re  Vickers,  ubi  supra.     Jeffryes  v.  Drysdale,  9  W.  R.  428. 
(s)  See  in  re  Arrowsmitli,  4  Jur.  N.  S.  1123;  G  W.  11.  642 
{tj  bmitU's  trusts,  Ir.  Kep.  4  Eq.  80,  M.  R. 


DIVESTING   ESTATE   OF   A   LCJNATIC   TRUSTEE.  125 

sessed   or   entitled   in  a  trust,  and   the    Court    of    Lmmcy 

/•c>'     -I  T  c  ^  c    Jurisdic- 

Chancery  may  (if  it  be  expedient  lor  the  purpose  ol      tion. 
carrying  out  the  sale  by  order)  vest  such  land  for 
such  estate  as  it  thinks  proper,  either  in  a  purchaser 
or  some  other  person." 

Thus,  where  after  a  decree  for  a  dissolution  of 
partnership,  part  of  the  property  being  leasehold,  was 
vested  in  the  plaintiff  and  defendant,  and  the  latter 
being  a  person  of  unsound  mind  and  unable  to  concur 
in  the  assignment  of  the  legal  estate  (to  a  purchaser 
under  a  sale  directed  by  the  Court), (it)  the  Court, 
(consisting  of  Lord  Cairns,  L.C.,  and  Wood  and 
Selwjm,  L.JJ.),  directed  the  order  to  be  made  in 
Chancery  without  resort  to  the  Lunacy  Jurisdic- 
tion, (v) 

But  where  the  decree  is  for  a  partition  without 
sale,  or  for  exchange  of  lands,  and  a  co-owner  is  a 
person  of  unsound  mind,  and  under  T.  A.,  ]850, 
s.  30,  declared  a  trustee  of  the  share  vested  in  him, 
the  divesting  order  must  be  made  by  the  Lord 
Chancellor  intrusted,  (jj) 

So  where  the  heir  of  a  deceased  vendor  of  real 
estate  became  lunatic  the  lunacy  jurisdiction  be- 
came necessary  to  appoint  a  person  to  convey  the 
lands  to  the  purchaser,  (z)  Where  in  a  partition 
suit  a  co-owner  was  a  lunatic  tenant-in- tail,  an  order 
was  made  in  lunacy  appointing  the  committee  of  her 
estate  to  execute  the  necessary  disentailing  deed ;  (ft) 
but  this  was  under  the  Lunacy  Regulation  Act  (6). 

(m)  This,  though  not  stated,  is  manifestly  so,  as  the  order  was  made 
under  T.  A.,  1852,  s.  1. 

(v)  Herring  v.  Clarke,  L.  R.  4  Ch.  167. 

(y) /«  re  Molj-neux,  4:  De  Gex,  F.  &  Jo.,  361.  In  re  Bloomer, 
2  De  Gex  &  Jo.,  88.  In  re  Moorehead  v.  Moorehead,  Ir.  Rep., 
2  Eq.,  492. 

(2)  /nreCuming,L.R.5Ch.,72.  See CoUingwood's Trusts, 6  W.R.,  536. 

(a)  In  re  Sherrard  Lowther  v.  Cuffe.     1  De  Gex,  Jo.  &  Sm.,  431. 

(6)  16  &  17  Vic,  c.  70,  ss.  124,  136,  137. 


126 


DIVESTING   ESTATE  OF   A  LUNATIC  TRUSTEE. 


Lunacy 
Jurisdic- 
tion. 

Trustees 
appoiuted 
ill  lunacy. 


(153.)  As  we  have  seen,  under  the  T.  A.,  1850, 
the  Lord  Chancellor  intrusted  in  lunacy  had  no 
power  to  appoint  new  trustees  even  in  lieu  of  a 
lunatic  trustee,  and  to  do  so,  the  chancery  jurisdiction 
had  to  be  resorted  to ;  and  on  the  other  hand  the 
chancery  jurisdiction  did  not  enable  that  Court 
to  make  an  order  divesting  the  estate  of  a  lunatic 
trustee  (except  in  the  special  cases  mentioned  in 
(152).  So  that  when  an  appointment  and  a  vesting 
were  required,  both  jurisdictions  were  required  to 
act. 

This  involved  duplicate  orders,  or  the  incongruity 
of  one  compound  order  made  by  two  wholly  differ- 
ent jurisdictions,  entered  separately  in  the  books  of 
chancery  and  lunacy,  a  process  which  might  prove 
embarrassing  in  the  possible  event  of  an  appeal  to 
two  different  tribunals  from  one  and  the  same 
order. 

This  led  to  the  enactment  in  the  T.  A.,  1852, 
s.  10.  viz.  : — "  That  where  the  Lord  Chancellor 
intrusted,  &c.,  has  jurisdiction  to  order  a  convey- 
ance or  transfer  of  land  or  stock,  or  to  make  a 
vesting  order,  he  may  also  make  an  order  appoint- 
inar  new  trustees  in  like  manner  as  the  Court  of 
Cliancery  may,  without  its  being  necessary  that  the 
order  should  be  made  in  chancery  as  well  as  in 
lunacy,  or  be  passed  or  entered  by  the  registrar  of 
the  Court  of  Chancery." 

Thus  the  Lord  Chancellor  intrusted,  &c.,  is 
enabled  to  perform  the  double  operation  of  divest- 
ing the  estate  of  a  lunatic  trustee  or  mortgagee, 
and  appointing  a  new  trustee  in  his  stead,  in  all 
cases  in  which  he  has  jurisdiction  to  vest  or  transfer 
the  land  or  stock.  This,  of  course,  throws  us  back 
on  the  inquiry — in  what  cases  the  Lord  Chancellor 
has  the  primary  jurisdiction  of  divesting  the  estate 
of  the  lunatic  ? 


diVesting  estate  of  a  lunatic  trustee.  127 

(154.)  As  to  vesting  orders  the  Lord  Chancellor    Lunacy 

'  ^  Jurisdic- 

intrusted  in  lunacy  is  enabled  by  T.  A.,  1850,  s.  3,      tion. 
to  make  a  vesting  order  of  lands  vested  in  a  lunatic  Divesting 
or  person   of  unsound   mind   by  way  of  trust  or  lunatic 
mortgage,  and  the  order  has  the  same  effect  as  if  Lwd^^  "^^ 
the  trustee  or    mortgagee,  being   sane,   had    duly  t^iianceiior. 
executed  a  conveyance  of  the  land.      Lender  s.  4 
he  may  release  or  dispose  of  a  contingent  right  in 
lands   vested    in   a  trustee   or   morto^ao'ee   who  is 
lunatic  or  of  unsound  mind. 

(155.)  Under  T.  A.,  1850,  s.  20,  the  Lord  Chan-  Appointing 
cellor  intrusted,  &c.,  instead  of  an  order  divesting  convey.  ^ 
lands  out  of  a  lunatic  trustee  or  mortgagee,  or 
releasing  a  contingent  right  in  lands  under  s.  4, 
may,  if  he  should  deem  it  more  convenient  to  do  so, 
make  an  order  appointing  a  person  to  convey  or 
assign  the  lands  or  to  release  or  dispose  of  the 
contingent  right. 

Where  two  new  trustees  had  been  appointed 
under  a  power  in  place  of  a  lunatic  trustee,  the 
same  persons  were  appointed  by  an  order  in  lunacy 
to  assign  the  legal  estate  in  the  mortgaged  property 
to  a  mortgagor,  (c) 

The  provisions  of  the  T.  A.,  1850,  ss.  3  and  4, 
enabling  the  Lord  Chancellor  intrusted,  &c.,  to 
divest  or  release  the  estate  or  contingent  right  or 
interest  of  a  lunatic  trustee  or  mortgagee  in  land 
(when  contrasted  with  the  language  of  the  sections 
5  and  6,  which  follow,  as  to  stock  or  choses  in  action), 
would  seem  to  be  substantially  if  not  entirely  con- 
fined to  cases  in  which  the  lunatic  was  solely  seized 
of  the  land  or  interest,  or  of  some  share  of  it, 
whether  by  original  right  or  by  survivorship. 

(156.)  ,  Under  T.  A.,  1850,  s.  5,  the  Lord  Chancellor  Divesting 
intrusted,  &c.,  may  vest  the  right  to  transfer  stock  or  cUosesTu 

action. 

(c)  In  re  Jones,  L.R.,  2  Ch.,  71,  L.JJ. 


128  APPOINTMENT   AND   DIVESTING   IN   ONE   ORDER. 

Lunacy  clioses  in  action  to  which  a  trustee  or  mortgagee, 
Tjow."^  being  lunatic  or  of  unsound  mind  is  solely  entitled 
in  any  person  appointed  by  the  Lord  Chancellor, 
or  where  the  lunatic  trustee  or  mortgagee  is  en- 
titled jointly  with  another  person  or  persons  not  of 
unsound  mind,  the  order  may  vest  the  right  of 
transfer  or  suit  in  the  other  trustee  or  trustees  so 
jointly  entitled,  or  in  them  with  any  other  person 
or  persons  the  Lord  Chancellor  may  appoint.  So 
under  T.A.,  1850,  s.  6,  where  the  personal  representa- 
tive of  any  deceased  person  in  whose  name  any  stock 
or  chose  in  action  may  stand  or  be  vested,  happens  to 
be  a  lunatic,  the  Lord  Chancellor  intrusted  may  vest 
the  right  to  transfer  the  stock  or  receive  the  dividends, 
or  to  sue  for  the  chose  in  action,  in  any  person  or 
persons  the  Lord  Chancellor  may  choose  to  appoint. 
Under  T.  A.,  1 850,  s.  20,  the  Lord  Chancellor  in- 
stead of  making  an  order  under  s.  5,  vesting  the 
right  to  transfer  stock  in  some  particular  person, 
may  direct  some  officer  of  the  bank  to  make  or  join 
in  making  the  transfer  to  some  person  or  persons 
named  in  the  order. 

The  order  may  go  to  transfer  stock  into  Court.  ((/) 

When  both       (157.)  As  the  Lord  Chancellor's  jurisdiction  in 

bf ■'attained  luuacy  to  appoint  new  trustees  is  expressly  limited 

in  lunacy.    ^^  cascs  in  which  he  has  jurisdiction  in  lunacy  to 

order  a  conveyance  or  transfer  of  land  or  stock,  or 

to  make  a  vesting  order  (see   T.  A.,  1852,  s.  10), 

it  would  seem  tliat  as  regards  land  if  the  lunatic 

trustee  or   mortgagee  is  not  solely  seized  of  the 

land,  the  Lord  Chancellor  has  no  jurisdiction  either 

to  make  a  complete  divesting  order  or  consequently 

an  order  to  appoint  new  trustees  in  the  place  of  a 

lunatic  or  person  of  unsound  mind. 

If  the  lunatic  trustee  is  solely  seized  of  land  the 

((Z)  See  in  re  Dawson  Barber  v.  Daw.son,  G  N.H.,  34G,  L.  J  J. 


APPOINTMENT   AND   DIVESTING   IN    ONE   ORDER.  129 

Lord  Chancellor  may  both   divest  the  estate,  and     L^macy 
appoint  one  new  trustee  or  several,  comj)letino-  the      uon.'' 
full  number  of  the  trustees,  although  some  of  the 
vacancies   have   been  occasioned   by   other  events 
than  lunacy,  (e) 

The  doubts  expressed  by  Lord  Westbury  in  a 
case  like  this — In  re  Boyce(f) — where  he  required 
the  order  to  be  made  both  in  chancery  and  in 
lunacy  will  be  found  when  examined  to  arise  from 
the  circumstance,  that  it  was  not  altogether  certain 
whether  the  lunatic  trustee  was  seized  of  any  estate 
at  all,  which  could  be  divested,  or  was  merely 
invested  with  a  naked  power  to  sell.  Lord  West- 
bury  inclined  to  the  opinion  that  the  trustee  had 
by  implication  an  estate  in  the  land,  and  if  he 
had  been  solely  seized  he  had  jurisdiction  to  divest 
the  estate,  and  appoint  new  trustees,  but  for 
security's  sake  he  directed  that  the  order  should  be 
made  in  both  jurisdictions,  to  appoint  new  trustees 
in  place  of  the  original  trustee  under  T.  A.,  1850, 
s.  32,  and  to  vest  such  estate  (if  any)  as  was 
vested  in  the  original  trustee. 

In  the  case  of  in  re  Mason, ((/)  the  trust  estate 
consisted  of  realty  and  personalty,  and  was  vested 
in  three  persons  as  devisees  of  a  deceased  trustee, 
and  one  of  them  was  a  lunatic,  the  other  two 
declining:  to  act.  As  the  Lord  Chancellor's  order 
in  lunacy  could  not  divest  the  estate  in  the  realty 
out  of  the  latter,  it  became  necessary  to  resort  to  the 
Chancery  jurisdiction  in  respect  of  them,  appointing 
two  new  trustees  and  a  person  to  convey  the  estate 
vested  in  the  three  devisees  of  the  surviving 
trustee,  together  with  a  vesting  order  as  to  the  per- 

(e)  In  re  Owen,  L.R.,  4  Ch.,  782,  L.  J.  Giffard. 
(/")  In  re  Boyce,  4  De  Gex,  Jo.  &  Smith,  205,  and  see  in  re  Porter's 
Will,  3  W.R.,  583. 

(^)  In  re  Mason,  L.  R,,  10  Ch.  273. 

g3 


l')0  APPOINTMENT  AND   DIVESTING  IN   ONE   ORDER. 

Lunacy  sonalty.  If  the  two  devisees  who  were  of  sound  mind 
Hon.  had  elected  to  act,  it  is  doubtful  whether  the  Lord 
Chancellor's  order  in  lunacy  could  have  transferred 
the  estate  of  the  lunatic  to  the  acting  trustees,  and 
if  it  could,  it  would  occasion  a  severance  of  the  estate 
in  joint  tenancy  which  would  be  inconvenient  in  a 
case  of  this  nature. 

In  re  Pearson,  a  lunatic,  (K)  the  trust  estate  con- 
sisted of  realty  and  personalty,  and  was  vested  in 
three  trustees,  one  of  whom  became  a  lunatic,  and  a 
new  trustee  had  been  duly  appointed  in  his  stead 
under  a  power  in  the  settlement ;  a  vesting  order 
was  sought  in  Lunacy  of  the  real  estate  and  for  the 
right  to  call  for  a  transfer  of  the  personal  estate  in 
the  two  continuing  trustees  and  the  new  trustee, 
but  L.  J.  James  required  the  petition  to  be  first 
amended  by  entitling  it  in  the  Chancery  Division 
as  well  as  in  Lunacy,  for  if  the  order  was  made  in 
Lunacy  only,  it  could  not  affect  the  two  continuing 
trustees,  and  would  sever  the  joint  tenancy,  (i) 

In  re  White  (ji)  the  trust  estate  consisted  of  canal 
shares,  probably  personalty,  and  became  vested  in 
three  executors,  one  of  whom  became  of  unsound 
mind,  and  the  other  two  refused  to  act  or  make  a 
transfer.  A  petition  was  presented,  entitled  both  in 
Chancery,  and  in  Lunacy,  by  the  cestui  que  trusts  for 
a  transfer  of  the  canal  shares  under  T.  A.,  1850,  ss. 
5  and  24.  The  L.  J.  James,  thought  tlie  case  was 
perhaps  not  within  the  strict  letter  of  the  Act,  but 
that  as  an  order  might  be  made  vestinor  the  share  of 
the  lunatic  executor  in  the  other  two  executors  of 
sound   mind  who   declined   to   act,   and   on   their 

Qi)  In  re  Pearson,  a  lunatic,  L.  R.  5  Ch.  D.  982,  L. J.J.,  25  W.  K.  853. 

(t)  See,  however,  statute  22  &  23  Vic,  c.  35.  s.  21,  as  regards  lease- 
hold, whether  the  order  might  vest  chattels  real  in  the  new  and  iu 
continuing  trustee  jointly, 

O')  //.  re  White,  L.  K.,  5  Ch.  G'Jd. 


TERRITORIAL   LIMITS   OF   THE  JURISDICTION.  131 

refusal  to  transfer,  a  second  order  might  vest  the     Lunacy 
right  in  the  petitioners  he  considered  that,  to  avoid      Hon. 
circuity,  one  order  might  be  made  to  accomplish  the 
desired  result. 

If  the  trust  fund  were  altogether  pure  personalty, 
stock,  or  choses  in  action,  and  one  trustee  became 
lunatic,  the  Lord  Chancellor  by  an  order  in  Lunacy 
mi'j-ht  vest  the  ri^ht  of  transfer  and  suit,  in  the 
other  trustees  or  in  them  jointly  with  other  persons 
named :  T.  A.,  1850,  s.  4.  But  if  the  latter  refuse 
to  act,  or  are  resident  out  of  the  jurisdiction,  a 
difficulty  occurs  again,  and  the  Chancery  jurisdiction 
must  be  resorted  to,  as  was  done  in  the  case  of  in  re 
Stewart,  (/c) 

(15S.)  The  powers  conferred  by  the  T.  A.,  1850,  Territorial 
on  the  Court  of  Chancery  and  on  the  Lord  Chan-  powers  of 
cellor  in   England  intrusted   in  lunacy,  are  more  andLimacy. 
extensive  than  those   given   to  the  corresponding 
authorities  in  Ireland. 

The  order  of  the  Court  of  Chancery  in  England 
may  affect  lands  and  personal  estate  situated  any- 
where within  the  Queen's  dominions  and  colonies, 
except  Scotland  only,  thus  reaching  lands  and  per- 
sonalty in  Ireland  (T.  A.,  1850,  s,  54).  {V) 

The  order  of  the  Lord  Chancellor  of  England 
intrusted  in  lunacy,  may  affect  lands  and  personal 
estate  situated  anywhere  within  the  Queen's  domi- 
nions and  colonies  except  Ireland  and  Scotland 
(T.  A.,  1850,  s.  56).  Thus  the  Court  of  Chancery 
in.  England  has  a  more  extensive  range  of  juris- 
diction than  the  Lord  Chancellor  of  England  in- 
trusted in  lunacy,  as  the  Court  of  Chancery  can 
and  the  Lord  Chancellor  cannot  affect  property  in 
Ireland. 

Qc)  In  re  Stewart,  8  W.  R.  297. 

(0  See  in  re  Tait's  Trusts,  W.N.,  1870,  257;  M.  R.  made  such  au 
order  "  after  some  hesitation." 


132  TERRITORIAL   LIMITS   OF   THE   JURISDICTION, 

Lunacy        The  powGi's  of  the  English  Court  of  Chancery  are 

tion.       so  far  concurrent  with  those  of  the  Irish  Court  of 

Chancery  as  both  can  affect  property  in   Ireland, 

but  not  so  as  regards  the  jurisdiction  of  the  Lord 

Chancellor  in  lunacy. (771) 

In  a  recent  case  "  In  re  Lamotte  '\n)  it  was  con- 
sidered that  although  the  English  lunacy  juris- 
diction could  not  reach  lands  in  Ireland,  yet  by  an 
order  made  in  both  chancery  and  lunacy  in  Eng- 
land, the  estate  of  a  sole  surviving  trustee  of  lands 
in  Ireland,  he  being  a  lunatic,  might  be  divested. 
This  seems  strange,  for  as  the  powers  of  the  Court 
of  Chancery  in  England  do  not  reach  the  estates  of 
lunatics  in  England,  it  is  hard  to  see  how  they  can 
be  made  to  reach  lands  in  Ireland  similarly  circum- 
stanced. 

The  powers  given  to  the  Court  of  Chancery  in 

Ireland,    and   to   the   Lord  Chancellor   of  Ireland 

intrusted,  &c.,  are  strictly  confined  to    lands    and 

personalty  in  Ireland,  and  do  not  reach  property  of 

any  kind  in  England,  Scotland,  or  the  Colonies. (0) 

Power  (159.)  Under  the  Lunacy  Regulation  Acts,  Eng- 

hmSc  may  l^^d,  1853,  and  Ireland,  1871,(^)  where  a  power  is 

be  exercised  vested  in  a  luuatic  in  the  character  of  trustee  or 

by  com- 
mittee,       guardian,  &c.,  and  it  appears  to  the  Lord  Chancellor 

intrusted  as  aforesaid  to  be  fit  and  expedient  that  the 

power  should  be  exercised,  &c.,  &c.,  the  Committee  of 

the  estate,  in  the  name  and  on  behalf  of  the  lunatic, 

under  an  order  of  the  Lord  Chancellor  intrusted  as 

aforesaid,  made  upon  the  application  of  any  person 

interested  in  the  exercise  of  the  power,  may  exercise 

the  power,  he,  in  such  manner  as  the  order  shall 

(to)  See  in  re  Davies,  3  Mac.  &  G.,  278.     In  re  Hewitt's  Estate,  (J 
W.  R.,  537,  V.  C.  K. 

(n)  In  re  Lamotte,  L.  R.,  4  Ch.  D.,  325;  25  W.R.,  140. 

(o)T.  A.,  1850,  ss  55  and  57. 

00  16  &  17  Vic,  c.  70,  8.  137 ;  34  Vic,  c  22,  s.  87  (Ireland.) 


EXECUTION  OF  POWERS  BELONGING  TO  LUNATIC.  133 

direct;  and  by  another  section  of  the  same  Lunaa/ 
statute  {q) — "Where  under  this  Act  the  committee  tkili^' 
of  the  estate  under  order  of  the  Lord  Chancellor 
intrusted  as  aforesaid,  exercises  in  the  name  and  on 
behalf  of  the  lunatic  a  power  appointing  new 
trustees  vested  in  the  lunatic,  the  person  or  persons 
who  shall,  after  and  in  consequence  of  the  exercise 
of  the  powders,  be  the  trustee  or  trustees,  shall  have 
all  the  same  rights  and  powers  as  he  or  they  would 
have  had  if  the  order  had  been  made  by  the  Court 
of  Chancery  under  the  T.  A.,  1850,  or  any  Act  amend- 
ing the  same,  or  if  he  or  they  had  been  appointed 
by  a  decree  of  that  Court  in  a  suit  duly  constituted,  • 
and  the  Lord  Chancellor  intrusted  as  aforesaid 
may,  in  any  such  case,  where  it  seems  to  him  to  be 
for  the  lunatic's  (r)  benefit,  and  also  expedient, 
make  any  and  every  order  respecting  the  land  or 
stock  or  choses  in  action,  subject  to  the  trust,  as 
might  have  been  made  in  the  same  case,  under  the 
provisions  of  the  T.  A.,  1850,  or  any  Act  amending 
the  same,  on  the  appointment  thereunder  of  a  new 
trustee  or  new  trustees." 


(?)  16  &  17  Vic,  c.  70,  s.  138;  34  Vic,  c  22,  s.  87  (Ireland.) 

(/•)  Sic. 


[     134     ] 


CHAPTER  XIII. 

Common  Law  Jurisdiction  of  the  Court  of 
Chancery. 

159.  What  it  consists  of,  134. 

160.  Writ  of  Error,  13-1:. 

161.  Writ  of  Certiorari,  135. 
1G2.   Writ  of  Habeas  Corpus,  136. 

163.  Writ  of  Prohibition,  138. 

164.  Writ  of  Scire  facias,  141. 

165.  Writ  to  Judge  to  sign  Bill  of  Exception,  141. 

166.  Writ  of  Ne  Exeat,  142. 

167.  Common  Law  Jurisdiction  of  Master  of  the  Rolls,  142. 


Common 
law  juris- 
diction of 
Court  of 
Chancery. 


Writs  of 
Error. 


(159.)  The  jurisdiction  of  the  Court  of  Chancery 
as  a  court  of  common  law,  inchiding  the  juris- 
diction of  the  Master  of  the  Rolls  as  the  Judge  or 
Master  of  the  Court  of  Chancery  as  a  common  law 
court  is  transferred  to  the  High  Court  of  Justice. (a) 

For  all  practical  purposes  this  Common  Law 
Jurisdiction  of  the  Court  of  Chancery  may  be  con- 
sidered under  the  following  heads,  as  it  regards: — 
1.  Writs  of  Error;  2.  Writs  of  Certiorari;  3.  Writs 
of  Habeas  Corpus ;  4.  Writs  of  Prohibition;  5.  Writs 
of  Scire  facias;  6.  Writs  to  Judges  to  sign  Bills  of 
Exception  ;  7.  Writs  jS^e  Exeat  Regno. 

We  shall  afterwards  consider  the  Common  Law 
Jurisdiction  of  the  Master  of  the  Rolls. 

(160.)  The  issue  of  writs  of  error  to  reverse  judg- 
ments of  the  courts  of  common  law  which  belongfed 
to  Chancery,  was  abolished  as  regards  civil  actions 
by  the  Common  Law  Procedure  Act  (Ireland),  1853, 
and  all  that  remains  of  this  jurisdiction  pertains  to 
Writs  of  Error  in  criminal  cases.  Writs  of  Error  to 
the  House  of  Lords  in  cases  on  the  Crown  side  of 
the  Queen's  Bench  Division,  may  issue  in  like  man- 
ner and  subject  to  the  like  conditions  and  permission, 
and  in  respect  of  the  like  proceedings  as  such  writ 


(a)  J.  A.,  1877,  s.  21. 


WKITS   OF   ERROR — CERTIORARI.  135 

would  have  been  issued  from  the  Court  of  Queen's    common 
Bench  if  the  Judicature  Act  had  not  been  passed.  (6)   diction  of 
It  was  assumed  at  one  time,  that  a  Writ  of  Error     '"'"^^ 
was  of  right  in  criminal  cases,  except  in  cases  of 
felony  or  treason,(c)  but  even  in  cases  of  misde- 
meanour the  Writ  of  Error  in  practice  only  issued 
on  the  warrant  of  the  Lord  Lieutenant  which  was 
grounded    on    the    certificate    of    the    Attorney- 
General  •,{d)  but  it  is  now  settled  that  in  no  case 
should  it  issue,  without  the  fiat  of  the  Attorney- 
General,  whether  in  cases  of  misdemeanour"  or  of 
felony,  (e) 

Writs  of  Error  have  been  issued  from  Chancery 
returnable  into  the  Queen's  Bench  to  reverse  the 
judgments  of  inferior  Courts  of  Record. (/) 

(161.)  Writs  of  Certiorari  issued  from  and  were  certiorari, 
returnable  into  Chancery,  in  analogy  to  the  Writ  of 
Certiorccri  of  the  courts  of  common  law  to  reverse 
proceedings  of  inferior  courts  where  the  right  sued 
for  was  equitable. (^)  A  plain  tifi*  could  have  this 
writ  only  upon  filing  a  bill.(/i)  The  common  law 
Writ  of  Certiorari  in  civil  cases  was  regulated  by 
general  orders.(i)  It  was  used  sometimes  to  bring  up 
a  record,  e.g.,  decree  of  an  Assistant  Barrister's  Court 
for  inspection  on  a  plea  of  judgment  recovered,  (ji) 

In  ordinary  cases  when  used  for  the  purpose  of 
removing  proceedings,  it  was  confined  to  such  as 
were  according  to  the  course  of  the  common  law  and 

(6)  J.  A.,  1877,  s.  65,  §  2. 

(c)  Ex  parte  Rowe,  2  Mol.  27,  per  L.  Maaners,  L.C. 

(d)  Jb.  see  Mr.  Sauren  at  p.  28. 

(e)  Castro  v.  Murray,  L.  K.,  10  Exch.  21?. 

(f)  SeeTooley.Duffey,2Dr.&War.  380.  See  Harkin  r.  Montgomery, 
3  Ir.  L.  R.  471. 

(^)  See  Davies  v.  MacHeury,  L.  R.,  3  Ch.  200.  Tracy  v.  Open  Stock 
E.xchange,  L.  R.,  11  Eq.  556. 

(A)  Mitford  on  Pleading,  50.  (0  See  149,  152,  G.  O.,  1854. 

(;■)  See  Fitzsimou  v.  Lyons,  4  Ir.  L.  R.  222,  C.  P.  Comerford  v. 
Watson,  5  Ir.  Jur.  37. 


136 


WRITS   OF   HABEAS   CORPUS, 


Common 
Law  Juris- 
diction of 
Chancellor. 


Habeas! 
Corpus. 

A  d  iestifi- 
canduin. 


not  founded  on  statute  merely,  {k)  In  criminal 
cases  the  Court  of  Queen's  Bench  issued  another 
kind  oi  certiorari ;  ex.  where  a  summary  conviction 
Avas  in  excess  of  the  jurisdiction,  (I)  or  to  quash  a 
presentment,  {in) 

In  many  cases  the  removal  of  proceedings,  civil 
or  ci'iminal,  by  certiorari  is  forbidden  by  statute.  {>/) 

(162.)  Several  kinds  of  writs  of  Habeas  Corpus 
issued  from  Chancery. 

a.  Habeas  Goiyus  ad  testijicandum  where  a 
witness  was  in  prison  under  some  common  law 
process,  (o)  The  Statute  44  Geo.  III.,  c.  102, 
enabled  any  Judge  or  Baron  of  the  Common  Law 
Courts  or  Justice  of  Oyer  and  Terminer  or  Gaol 
Delivery  to  award  a  writ  of  Habeas  Corpus 
to  bring  up  a  prisoner  detained  in  any  gaol  or 
prison  before  any  such  Court,  or  at  nny  sitting  of 
Nisi  Prius,  or  before  any  other  Court  of  Record  in 
Ireland  to  be  examined  as  a  witness,  or  to  testify 
before  any  grand,  petit,  or  other  jur}^  in  any  cause 
or  matter,  civil  or  criminal,  depending  or  to  be  in- 
quired into  or  determined  in  any  of  the  said  Courts. 

h.  Habeas  Corpus  ad  faciendu^n  issued  in  order 
to  execute  an  attachment  against  a  person  already 
in  custody  under  civil  processof  some  other  Court;(yy) 
or  to  bring  up  a  person  in  arrest  under  an  attach- 
ment to  attend  a  taxation  of  costs,  (q) 

(k)  See  Kuott  v.  Fitzgibbon,  4  Ir.  Jur.  28  Q.  B.  ■  See  3  &  4  Vic, 
c.  108,  s.  175,  SuUivau  v.  Burke,  10  Ir.  L.  R.,  201. 

(0  Queen  v.  Justices  of  Kilkenny,  Ir.  Rep.,  5  C.  L.,  3'J-l. 

(to)  In  re  Ardfert  Presentment,  Ir.  Rep.  3  C.  L.  IG. 

(«)  As  to  the  effect  of  this  see  Queen  v.  Chantrell,  L.  R.,  10 
Q.  B  ,  587,  and  Colonial  Bank  of  Australasia  v.  Willan,  L.  R.,  5 
Pr.  C.  417. 

(o)  Daniels  Ch.  Br.  p.  842. 

{,p)  See  Oldfield  v.  Cobbett,  2  Ph.  239. 

(})  See  Walsh  v.  Wilson,  2  Chan.  Rep.  79 ;  Dcnnison  v.  Keatingc, 
3  L.  R.  N.  S.  191  Q.  B. ;  but  see  Major  v.  Barton,  1  Ir.  Jur.,  N.  S. 
408.  Seethe  Queen  v.  Ilussey,  11  Ir.  C.  L.  Rep.  xx.  to  bring  uji  a 
prisoner  in  order  that  bail  might  be  sworn  in  bis  presence. 


WRITS   OF   HABEAS   CORPUS.  137 

c.  Habeas  Corpus  ad  suhjiciendunn  to  brins;  up    Common 
the  body  of  a  person  restrained  oi  his  liberty  in  a  diction  o/ 
common  gaol,  or  by  a  private  person,  by  the  common      — 
law,  issued   from    Chancery    as   well   as    from  the 
Queen's  Bench  or  Common  Pleas. 

The  Lord  Chancellor  is  also  one  of  the  Judges 
mentioned  by  name  in  the  first  Habeas  Corpus  Act 
(Ireland),  (r)  and  was  bound  equally  with  the  Judges 
of  the  Queen's  Bench  and  Common  Pleas  (Barons  of 
the  Exchequer  were  not  included),  to  issue  the  writ 
to  bring  up  the  body  of  a  person  in  the  custody  of 
a  sheriff,  gaoler,  or  other  person  under  colour  of 
legal  process  for  any  criminal  or  supposed  criminal 
matter  (unless  for  treason  or  felony  plainly  and 
specially  expressed  in  the  warrant  of  commitment), 
under  a  penalty  of  £500  for  delay  of  issuing  the 
writ,  (s) 

The  second  Habeas  Corpus  Act  (t)  included  the 
Barons  of  the  Exchequer  as  well  as  the  Judges  of 
the  Queen's  Bench  and  Common  Pleas,  but  omitted 
the  Lord  Chancellor.  It  applies  where  any  person 
is  confined  or  restrained  of  liberty  unjustly,  ex. 
gr.,  persons  confined  on  an  allegation  of  lunacy  {u) 
(but  not  for  some  criminal  or  supposed  criminal 
matters,  a  class  of  cases  provided  for  by  the  first 
Act),  excepting  persons  imprisoned  for  debt  or  by 
process  in  any  civil  suit  (v)  which  included  an  attach- 
ment for  contempt  from  the  Court  of  Chancery,  (lu) 

(r)  21  &  22  Geo.  III.,  c.  11,  a.d.,  1781,  correspoadiug  to  31  Car.  II., 
c.  2,  English. 

(_s)  lb.  s.  9. 

{t)  See  ex  parte  Carpenter,  Smith,  and  Batty,  81 ;  Queen  v.  Riall,  11 
Ir.  C.  L.  R.,  279,  K.  B.     In  re  Cody,  5  Ir.  Jur.,  N.  S.  175. 

(m)  56  Geo.  III.,  c.  100,  a.d.,  1816,  E.  and  J. 

(y)  See  Page  v.  Williams,  1  Ir.  C.  L.  R.  527,  and  see  an  arrest  after 
an  escape,  in  re  Everardea;  ^ar/e,  Fitzgerald,  J.,  7  Ir.  Jur.  N.   S.  346. 

iw)  Ex  parte  Higgins,  9  Ir.  L.  R.,  414,  C.  P.  In  re  Madden,  Ir. 
Rep.  5  C.  L,  396.     In  re  Aylward,  12  Ir.  C.  L.  R.  448,  C.  P. 


133  HABEAS  CORPUS — PROHIBITION. 

Common        It  gave  power  to  the  Court  to  examine  into  tl:e 
fiicHon  of  truth  of  the  return  in  a  summary  way,  if  it  were 

Chancellor.     ^■  ,     ^         ^  ij.i  i  ii 

disputed,  whereas  at  the   common  law  and  under 

the  first  Act,  if  the  truth  of  the  return  was  challenged 
the  Judge  could  only  direct  an  action  to  be  brought 
for  a  false  return. 

Lord  Redesdale  is  reported  (most  probably  erro- 
neously) (a?)  to  have  refused  to  issue  a  writ  oi  Habeas 
Corpus  while  the  Common  Law  Judges  were  sitting. 
Lord  Eldon  treated  the  writ  as  of  common  right, 
whether  under  the  common  law  or  under  the  fii'st 
statute,  and  used  not  to  refuse  it,  but  recommended 
the  parties  to  apply  to  the  law  courts,  because  they 
had  power  (which  he  had  not),  under  the  second  Act 
to  inquire  summarily  into  the  truth  of  the  return. 

This  difficulty  no  longer  has  weight,  but  the 
Lord  Chancellor  from  the  inevitable  pre-occupation 
of  his  time  in  administrative  and  political,  as  well  as 
judicial  affairs,  is  probably  the  least  convenient 
tribunal  to  resort  to  for  a  summary  remedy. 

As  one  superior  Court  would  not  allow  a  Habeas 
Corpus  to  bring  up  a  person  in  custody  under  com- 
mittal of  another  superior  Court,  it  seems  a  fortiori 
that  one  Division  of  the  High  Court  will  not  do  so 
in  regard  to  another  division.  Every  branch  of  the 
High  Court,  however,  is  competent  to  consider  the 
use  made  of  the  powers  of  the  High  Court. 
Writ  of  (1G3.)  Prohibition  to  restrain  proceedings  in  an 

tjon^'*^'  Inferior  Court  was  a  Prerogative  writ  issued  from  the 
Hanaper  Office  in  Chancery  in  Ireland  ;  and  in  re- 
spect of  it  the  Lord  Chancellor  exercised  a  jurisdic- 
tion similar  to  that  of  the  Superior  Courts  of  Common 
Law,  with  this  advantage — that  it  could  be  exercised 
in  vacation  as  well  as  in  term  time,  (y)     It  was  ex- 


(x)   /«  re  Roe,  1  jMoI.  280. 

(j/)  See  in  re  Bateinaa,  L.K.,  9  Eq.  66,  V.  C.  James. 


WRIT   OF   PROHIBITION. 


139 


tended  to  criminal  matters  as  well  as  civil,  (a)  and    common 
after  iudsfment  or  conviction  and  award  of  execu-   diction  of 

*'        °  •  f>    11       Chancellor. 

tion  as  well  as  before,  but  not  after  execution  luily      — 
executed.  (6) 

It  is  inapplicable  generally  where  an  appeal  is 
provided  by  statute,  (c)  or  where  a  statute  has 
taken  away  a  plea  to  the  jurisdiction  of  the  Court ;  (d) 
one  Superior  Coui-t  could  not  prohibit  another,  (e) 
and,  of  course,  one  division  of  the  High  Court  can- 
not prohibit  the  proceedings  in  another  division,  (/) 
nor  is  it  likely  that  after  a  prohibition  has  been  re- 
fused in  one  division,  it  will  be  granted  in  another 
division ;  indeed  it  would  seem,  the  order  of  refusal 
would  estop  any  further  application,  but  the  appli- 
cant can  take  the  case  to  the  Court  of  Appeal,  (g) 

Applications  to  the  Lord  Chancellor  (or  to  Chan- 
cery Judges  in  England  who  were  competent  to 
entertain  them),  were  not  frequent,  and  were  incon- 
venient, Qt)  inasmuch  as  if  the  writ  was  granted,  it 
was,  of  necessity,  returnable  into  the  Court  of 
Queen's  Bench  or  Common  Pleas,  where  a  jury 
might  be  had  to  try  issues  in  fact ;  and  where  the 
Common  Law  Courts  were  open,  the  Court  of  Chan- 
cery sometimes  refused  to  entertain  such  applica- 
tions, even  if  the  proceeding  originated  in  vacation,  (i) 
unless  the  application  had  been  made  and  refused  at 


(a)  Exp.  Duke  of  Devonshire,  Ir.  Rep.,  3  Eq.  412,  L.  C. 
(6)  Rich  V.  Anderson,  3  Ir.  Chan.  Rep.  463,  L.  C. 

(c)  Hawes  v.  Paveley,  L.R.  1  C.P.D.  418,  24  W.R.  895,  A.C., 
overruliug  Worthington  v.  Jeffries,  I.  R.  10  C.P.,  379  ;  and  see  Oram 
V.  Breary,  I.  R.  2  Ex.  D,  346;  Jacobs  v.  Brett,  L.R.,  20  Eq.  1,  M.R. 

(d)  Exp.  Williams,  34  Beav.,  370. 

(e)  See  Exp.  Cowan,  3  B.  and  A,  123. 
(/•)  J.  A.,  1877,  s.  27,  subs.  (5.) 

{g)  See  Hawes  v.  Paveley,  I.  R.,  C.  P.  D.  418,  24  W.  R.  895; 
20  Sol.  J,  640,  A.  C. 

(Ji)  See  Jacobs  v.  Brett,  L.  R.  20,  Eq.  1,  M.  R. 

(j)  In  re  Foster,  24  Beav.,  428.  Montgomery  v.  Blair,  2  Sch.  and 
Lef.  136. 


140  WRIT   OF   PROHIBITION. 

Common    Common  Law,  (k)  or  that  it  was  very  desirable  to 
iiktio7i  of  have  a  matter  decided  by  a  particular  Court,  ex.  gr., 
Chancellor,  ^j^^  ^^^^^  ^^  Queeu's  Bench,  and  which  could  not  be 
reviewed  by  another  Court,  put  in  train  for  recon- 
sideration in  the  Court  of  Exchequer  Chamber.  (I) 

In  Chancery,  it  was  usual  to  gTant  only  a  con- 
ditional order  that  a  writ  do  issue,  which  operated 
as  an  interim  stay  on  the  proceedings,  (th)  Either 
party  then  might  apply  on  affidavit  to  discharge  or 
make  absolute  the  conditional  order.  In  cases  of 
difficulty,  the  Court,  instead  of  making  the  condi- 
tional order  absolute,  would  direct  the  complainant 
to  declare  in  prohibition,  and  proceed  to  an  issue  of 
law  or  fact,  and  aU  proceedings  on  the  conditional 
order  were  suspended  meanwhile ;  (n)  but  the 
plaintiff  in  the  Court  below  had  no  absolute  right 
to  put  the  applicant  to  declare  in  prohibition,  (o) 

If  a  demurrer  were  taken  to  the  declaration  it 
was  heard  by  the  Lord  Chancellor,  (p)  and  from  his 
judgment,  an  appeal,  by  way  of  a  writ  of  error,  lay 
to  the  Court  of  Exchequer  Chamber  by  the  statute 
40  Geo.  III.,  c.  39,  s.  2.  (q)  When  an  issue  in  fact 
resulted  the  cause  was  remitted  to  the  Court  of 
Queen's  Bench,  as  the  Lord  Chancellor  had  not  power 
to  summon  a  jury,  the  verdict  was  returned  into 
Chancery  and  judgment  entered  there  at  the  Petty 
Bag  side,  either  for  the  plaintiff,  quod  stet  'prohihi- 
tio,  (r)  or  for  the  defendant,  that  the  writ  of  pro- 
hibition do  not  issue, 

(k)  See  Exp.  Lynch,  1  Mad.  Rep.  15 ;  24,  Walke  v.  Fanderbeide,  1 
Dick,  336. 

(0  See  in  re  Duke  of  Devonshire,  Ir.  Rep.  3  Eq.  412,  L.  C. 

(/ft)  Rich  V.  Anderson,  3  Ir.  Clian.  Kep.  403  ;  Jixp.  Duke  of  Devon- 
shire, L.  C.  Brewster,  4  July,  1868. 

(re)  Exp.  Duke  of  Devonshire,  L.  C.  O'Hagan,  19  April,  1809. 

(o)  WorthinRton  v.  Jeffries,  L.  R.,  10  C.  P.  379. 

(/))  Foot  V.  Duke  of  Devonshire,  Petty  Bag,  Ir.  Rep.  5  Eq.  310. 

(q)  See  Rex  v.  Dolphin,  2  Mol.  20,  Duke  of  Devonshire  v.  Foot,  Ir. 
Rep,  7  Eq.  305,  Ex  ch. 

(r)  Exp.  Duke  of  Devonshire  v.  Foot,  Ir.  Rep.  5  Eq.  314,  L.  C. 


SCIRE    FACIAS — BILL   OF   EXCEPTIONS.  141 

The  statute  1  Wm.  IV.  c.  21,  A.D.  1831,  has  hn-  Common 
proved  the  proceedings  in  prohibition  and  prescribes  dktion  o/ 
the  form  of  procedure,  whether  on  affidavits  or  on  '^^'"■■ 
regular  ])leading.  It  enacts,  sec.  1,  "  Tliat  the  party 
in  whose  favour  judgment  shall  be  given,  whether 
on  nonsuit,  verdict,  demurrer,  or  otherwise,  shall  be 
entitled  to  the  costs  attending  the  application  and 
subsequent  proceedings,  and  have  judgment  to  re- 
cover the  same  ;  and  in  case  a  verdict  shall  be  given 
for  the  party  plaintiff  in  such  declaration,  it  shall 
be  lawful  for  the  jury  to  assess  damages,  for  which 
judgment  shall  also  be  given,  but  such  assessment 
shall  not  be  necessary  to  entitle  the  plaintiff  to 
costs."  (s)  Under  the  Judicature  Act  an  appeal 
lies  from  the  decision  of  the  High  Court  of  Justice 
to  the  Court  of  Appeal,  in  prohibition. (^) 

(161.)  Pleas  by  way  of  Scire  facias  were  held  by  fidre 
the  Common  Law,  at  the  Petty  Bag  side  of  the 
Court  of  Chancery,  to  enforce  execution  on  recogni- 
zances and  statutes  staple  taken  in  the  Cornet  of 
Chancery,  and  this  jurisdiction  was  exercised 
according  to  the  course  of  the  Common  Law.  The 
orders  were  made  up  on  petition  in  the  office  of  the 
Clerk  of  the  Hanaper,(i(,)  but  issues  in  fact  were 
sent  for  trial  to  the  Court  of  Queen's  Bench. 

(165.)  The  mandatory  writ,  directed  to  a  Judge  writ  to 
under   the    statute    of    Westminster,  commanding  sign^Biu  of 
him  to  seal  a  Bill  of  exceptions,  also  issued  from  ^-'^•^^p"*^"*- 
Chancery.     How  far  this  writ  has  become  obsolete 
in  civil  actions  may  become  a  question  for  consider- 
ation having  regard  to  the  provision  in  the  Judi- 
cature Act,(y)  that  the  right   to   have  issues   for 

{$)  As  to  costs  where  no  pleading  has  talien  place  and  order  made 
absolute.    Wallace  v.  Allen,  L.  R.  10  C.  P.  607. 

it)  See  Hawes  v.  Paveley,  L.  R.,  1  C.  P.  D.  418  ;  24  W.  R.  895,  A.C. 

(m)  See  Rej^'inai;.  Eastern  Archipelago  Company,  4  De  Gex,  M.  &  G. 
199. 

(y)  J.  A.,  1877,  s.  48,  §  2. 


142 


NE  EXEAT  REGNO — MASTER  OF  ROLLS. 


Common 
Jmw  Jm-iif' 
diction  of 
Chancellor. 


Ke  Exeat 
Rtgno. 


Master 
of  Rolls' 
common 
law  juris- 
diction. 


trial  submitted  to  a  jury  witli  a  proper  and  com- 
plete direction  upon  the  law,  and  the  evidence 
applicable  to  such  issues  may  be  enforced  by 
motion  in  the  High  Court  of  Justice,  and  by 
motion  in  the  Court  of  Appeal  founded  upon  an 
exception  entered  upon  or  annexed  to  the  Record, 
remains  to  be  decided.  The  writ  would  seem  to 
have  its  use  still.  (^(;) 

(1G6.)  The  writ  of  Ne  Exeat  Regno,  originally 
applicable  only  to  state  purposes,  was  another  of 
the  High  Prerogative  writs  formerly  issued  from 
the  Hanaper  Office,  but  latterly  from  the  Record 
and  Writ  Office.  It  required  a  person  about  to 
leave  the  kingdom  to  evade  payment  of  an  equitable 
claim,  ex.  gr.,  an  executor  making  away  with 
assets,  to  give  sufficient  bail  or  security  in  a  fixed 
sum,  not  to  go  into  parts  beyond  the  sea  without 
the  leave  of  the  Court.  It  was  not  issued  except 
in  a  plenary  suit,  and  was  refused  on  an  adminis- 
tration summons,  (i^;) 

This  writ  was  in  Ireland  issued  by  all  the  Chan- 
cery Judges,  and  of  coui-se  can  be  had  on  the 
order  of  any  Judge  of  the  High  Court  under  like 
circumstances,  but  in  Common  Law  cases  a  writ  of 
an  analogous  character  has  been  introduced  under 
the  provisions  of  Debtors  Act. (if) 

(167.)  The  Judicature  Act(a:)  professes  to  trans- 
fer to  the  High  Court  of  Justice  "  any  jurisdiction 
exercised  by  the  Master  of  the  Rolls  in  relation  to 
the  Court  of  Chancery  as  a  Common  Law  Court." 
The  Master  of  the  Rolls  in  England  is  by  vh'tue  of 
his  office  "  Clerk  of  the  Petty  Bag,"  and  was 
described  as  assistant  to  the  Chancellor  in  matters 


(w)  See  Hayes  v.  Price,  3  Jo.  &   Lat.,  5G8,  not  iu  criminal  cases, 
and  see  North  v.  Crofton,  Walliss  Kept,  by  Lyne,4L 
(a;)J.  A.,  1877,  3.21. 


MASTER  OF  ROLLS*  JURISDICTION  AT  COMMON  LAW.  143 

of  Common  Law,(v)  and  he  accordingly  used  to    common 
entertain  applications  for  writs  of  prohibition.  (0)    diction  of 
But  in  Ireland  the  Master  of  the  Kolls  has  declined      — *"^' 
to  make  orders  at  the  Petty  Bag  side  of  the  Court. (a) 
"Whether  this   was   a  just  view  of  his   powers 
seems  now  to  be  matter  of  less  importance,  as  of 
course,  all  the  Common  Law  jurisdiction  of   the 
Lord  Chancellor  is  communicated  to  the  Master  of 
the  Rolls  and  the  Vice-Chancellor  in  common  with 
the  other  Judges  of  the  High  Court  of  Justice. 


CHAPTER  XIV. 
Landed  Estates  Jurisdiction, 

169.  Land  Judges,  p.  143. 

170.  Jurisdiction  of  Chancery  matters,  144. 

171.  Rules  and  Orders  of  Landed  Estates  Court,  144. 

172.  Separate  seal,  144. 

173.  Original  powers  of  Court,  145. 

174.  Auxiliary  to  other  Courts,  145. 

175.  Bound  to  determine  incidental  Controversies,  146. 

176.  Procedure  in,  147. 

177.  Binding  parties  to  accounts,  147. 

178.  Administration  of  appeals,  147. 

179.  Receiver  matters,  l48. 

180.  Appointment  of  Receiver,  148. 

1 81.  References  to,  148. 

182.  Attending  Receiver,  148. 

183.  Appeals  from,  149. 


(169.)  The  existing  Judges  of  the  Landed  Estates  i-and 
Court,  and  their  successors,  are  constituted  judges  of 
the  Chancery  division,  and  are  to  be  distinguished 
as  the  Land  Judges  of  that  division,  (a) 

Every  proceeding  within  the  exclusive  jurisdiction 
of  the  Landed  Estates  Court  is  to  be  commenced  in 

(y)  See  Lord  Campbell's  Lives  of  the  Chancellors,  vol.  ii.,  p.  342. 
(z)  See  Saunderson  v.  Claggett,  1  P.  Wm.,  6133.     Wright  v.  Cattell, 
13  Beav.  81. 

(a)  See  Herricks  Minors,  3  Ir.  Chan.  Rep.,  p.  81,  per  M.  R.  (Smith). 
(a)  J.  A.,] 877,  s.  7. 


144 


LAND  JUDGES   TO   ASSIST  CHANCERY   BTTSINESS. 


Landed 
Estates 
Jurisdic- 
tion. 


I>and 
Judges  to 

assist 

Cliaiicery 

business. 


Jurisdic- 
tiou  of 
Land 
Judges. 


Chancery- 
Judges. 


Rules  and 
orders  of 
Landed 
Estates 
Court. 


Separate 
seal. 


the  Chancery  division  and  addressed  to  the  Land 
Judges  of  that  division.  (&)  This  is  repeated  in 
another  clause  qualified  by  the  words  subject  to  any 
rules  of  Court  and  to  the  power  of  transfer,  (c) 

On  the  other  hand  if  the  state  of  business  in  con- 
nexion with  the  peculiar  jurisdiction  of  the  Land 
Judges  of  the  Chancery  division  shall  permit,  they 
are  bound,  in  addition  to  their  ordinary  business, 
from  time  to  time  to  assist  in  the  general  business 
of  the  Chancery  division,  {d) 

(170.)  The  peculiar  jurisdiction  formerly  exercised 
by  the  Judges  of  the  Landed  Estates  Court  is  still 
to  be  exercised  by  them  and  by  the  judges  who  may 
from  time  to  time  be  appointed  to  succeed  them,  and 
in  the  case  of  the  iUness,  absence,  or  other  inability  of 
them  or  either  of  them  to  discharge  their  duties,  or 
of  a  vacancy  in  the  office  of  the  judges,  then  by  any 
other  judge  of  the  Chancery  division  of  the  High 
Court,  (e) 

(171.)  The  rules  and  orders  and  practice  of  the 
Landed  Estates  Court  are  to  be  used  in  proceedings 
before  the  Land  Judges  for  the  sale  or  partition  of 
estates,  declaration  or  record  of  titles,  and  all  other 
proceedings  which  would  have  been  within  the  ex- 
clusive cognizance  of  the  Landed  Estates  Court  if 
the  Act  had  not  passed,  unless  and  until  altered  by 
the  Lord  Chancellor  and  the  Land  Judges.  The 
Lord  Chancellor  and  the  Land  J  udges,  or  either  of 
them  may  alter  the  rules,  orders,  and  practice,  but 
all  such  new  rules  must  be  laid  before  each  House 
of  Parliament  in  the  usual  way.  (/) 

(172.)  There  is  to  be  still  a  separate  seal  for  the 
Land  Judges,  and  conveyances  executed  with  that 
seal  have  the  same  force  as  those  executed  with  the 
seal  of  the  Landed  Estates  Court,  (g) 

{/,)  J.  A.,  1877,  s.  37,  §  4.  (c)  S.  -17.  {d)  S.  7,  §  :i. 

«  S.  7,  §  1.  (/)  S.  7,  §  3.  (^)  S.  7,  §  4. 


ORIGINAL  LANDED  ESTATES  COURT  POWERS.  145 

(173.)  The  great  powers  of  the  Landed  Estates    Landed 
Court,  of  sale  and  conveyance  of  estates,  incumbered   Junsdic- 
and  unincumbered,  giving   declarations  of  an  in-      — ■ 
defeasible   title,  were    of    course   to   be    exercised  powders  of 
subject  to  a  sound  and  wise  discretion,  (li)     Where  ^^^  ^°'^'' 
the  person  claiming  to  be  owner  was  not  in  pos- 
session, or  where  the  title  to  the  estate  was  in  dis- 
pute, it  was  the  duty  of  the  court  to  decline  to  act 
until  the  right  was  established,  (i)     Where  the  title 
was  a  legal  title,  and  clear  as  such,  but  affected  by 
alleged  equities  which  might  possibly  avoid  it,  the 
court  would  sometimes  give  opportunity  to  establish 
the  avoidance  by  a  suit  in  Chancery  or  an  issue.  (_;') 
Now  it  may  be  the  duty  of  the  court  to  take  upon 
itself  to  determine  all  such  questions,  (li) 

The  powers  of  the  court  as  regards  the  land,  ceased 
with  the  conveyance  of  it  to  a  purchaser ;  it  could 
not  afterwards  declare  him  to  be  a  trustee  for  another 
on  the  ground  of  fraud  or  mistake.  (Z) 

Ancillary  to  its  primary  jurisdiction,  the  Landed 
Estates  Court  had  power  to  convert  a  perpetual 
leasehold  into  a  fee-farm,  (m)  to  appoint  or  change 
and  remove  trustees ;  to  make  vesting  orders  under 
the  Trustee  Act,  1850,  {n)  to  redeem  charges,  (o) 
to  apportion  rents,  {p)  to  partition  property,  (9)  to 
sanction  exchanges,  {r)  and  to  divide  intermixed 
lands,  (s) 

(174.)  The  Landed  Estates  Court  had  been  con-  Auxiliary 

-\       ^        p  '  •  i-r>  1        *°  Other 

stituted  the  functionary  to  carry  into  effect  sales  Courts. 

(h)  21  &  22  Vic,  c.  72,  s.  53. 

(/)  See  Acheson's  estate,  Ir.  Rep.  3  Eq.  105,  A.  C. 
Ir.  Rep.  6  Eq.  469. 

(;■ )  See  Coffee's  estate,  Ir.  Rep.  4  Eq.  47,  L.  E.  C. 

(/-•)   Vide  infra  (175). 

(/)  Tottenham's  estate,  Ir.  Rep.  3  Eq.  528,  A.  C. 
Ir.  Rep.  1  £q.  399,  A.  C. 

(to)  21  &  22  Vic.,  c.  72,  s.  GO.     ,  (n)  Ih.  ss.  66,  67. 

(i?)  lb.  s.  72,     (2)  lb.  s.  79.         (r)  lb.  s.  80. 


Batty '3 

estate. 

Walsh's 

estate, 

{o)Ib 

.68. 

(s)  lb.  s.  83. 

H 

146 


BOUND  TO  DETERMINE  CONTROVERSIES. 


Landed  Ordered  or  decreed  by  the  Court  of  Chancery  or  by 
juHsdic-  the  Court  of  Bankruptcy,  unless  on  the  representation 
f!!!!l  of  the  parties,  or  on  consideration  of  the  small  value 
of  the  property,  the  Court  of  Chancery  or  the  Court 
of  Bankruptcy  thought  proper  to  retain  the  sale  to 
itself  ('?()  It  also  distributed  the  purchase-money  of 
sales  from  Chancery  unless  the  Court  of  Chancery 
directed  or  the  Landed  Estates  Court  thought  it  right 
to  have  the  money  lodged  to  the  credit  ol  the  Court 
of  Chancery  •,{v)  but  when  the  sale  was  made  under 
the  order  of  the  Court  of  Bankruptcy,  the  purchase- 
money  was  to  abide  the  orders  of  the  Court  of  Bank- 
ruptcy as  if  the  sale  had  been  made  directly  under 
that  Court  {v). 

When   it   sold   the   land  it  conferred  an    inde- 
feasible title  on  the  2:)urchaser ;  if  it  considered  the 
title  insufficient  or  such  as   should  not  be  sold  by 
it,  in  its    ordinary  course  it   refused  to   sell,   and 
reported   the  refusal  and  reason  to  the  Court  of 
Chancery.(i'j) 
Bound  to         (175.)  In  any  proceeding  before  a  Land  Judge, 
incidental    Under  the  Original  jurisdiction  of  the  Landed  Estates 
TersTet       Court,  the  Judge  is  bound  to  decide  all  controversies 
and  questions  as  to  the  validity  or  effect  of  any  deed, 
instrument,  or  contract  affecting  the  land,  or  any 
charge  or  incumbrance  thereon,  and  as  to  the  con- 
struction  or  effect  of  any  devise  or  bequest  of  any 
estate  or  interest  in,  or  of  any  charge  or  incumbrance 
upon  the  land  which  it  may  be  necessary  to  decide 
for  the  purpose  of  such  proceeding,  including  the 
validity  or  effect  of  any  lease  or   instrument   of 
tenancy  affecting  land,  and  i-equisite  to  be  ascertained 
for  the  due  settlement  of  a  rental.(a:;) 

The  Lauded  Estates  Court  had  already  power  to 

(w)  21  &22  Vic  ,c.  72,  s.  49;  and  see,  as  to  Church  Commissioners 
Act,  1869,  32  &  33  Vic,  c.  42,  s.  54. 

(vj  21&22  Vic,  c.  72,  s.  50.        {w)  lb.        (j)  J.  A.,  1877,  s..  39. 


PROCEDURE — BINDING  PARTIES — ADMINISTER  ASSETS.  147 

have  any  matter  of  fact  arising  in  the  exercise  of  its     Landed 

T  ..-,...  j-11  •    I  Estates 

ordmaiy  jurisdiction  tried  by  a  special  or  common  jurisaic- 
jury  before  the  Court  itself,(2/)  and  it  had  the  same  !!^ 
jurisdiction  as  the  Court  of  Chancery  for  sale  of 
settled  estates  under  the  Act  19  &  20  Vic,  c.  120.(5) 
It  had  the  powers  of  the  Court  of  Chancery  to 
enforce  specific  performance  of  contracts  of  sale  of 
land  in  certain  cases. (a) 

(176.)  The  procedure  in  such  cases,  i.e.,  of  trying  Procedure 
a  question  or  controversy,  is  to  be  settled  by  Rules 
of  Court,  to  be  made  by  the  Lord  Chancellor  and 
the  Land  Judges  or  one  of  them.(&) 

(177.)  Any  person,  whether  already  a  party  to  Binding 
the  proceeding  in  any  cause  or  matter  before  the  "^^^  ^'^^ 
Land  Judges  or  not,  who  shall  have  been  duly 
served  with  notice  in  writing  pursuant  to  the 
Rules  of  the  Court,  will  thenceforth  be  deemed 
a  party  to  the  cause  or  matter,  with  the  same 
rights  in  respect  of  his  claim  or  defence  as  if  he 
had  duly  sued  or  been  sued  in  a  suit  instituted 
for  the  purpose  of  deciding  the  question  or  con- 
troversy, (c) 

(178.)  The  Land  Judge  is  also  bound  to  take  To  take 
accounts,  and  administer  the  assets  of  any  deceased  and 

1  ..  1  J,  T    ,    •     administer 

person  whenever  it  may  be  necessary  lor  a  distri-  assets. 
bution  of  the  purchase-money  of  land  sold  before 
him  (provided  there  be  not  then  depending  before 
any  of  the  Judges  of  the  High  Court,  a  suit  for  the 
administration  of  such  assets),  and  it  will  not  be 
necessary  to  institute  any  other  cause  or  matter  for 
any  such  purpose. (cZ) 

Formerly  the  Landed  Estates  Court  did  not 
possess  jurisdiction  for  the  general  administra- 
tion of  an  estate  under  the  trusts  of  a  will,  after 

0)  21  &  22  Vic,  c.  72,  s.  38.  (z)  lb.  s.  4(5. 

(a)  Ih.  s.  48.  {b)  J.  A.,  1877,  s.  39. 

(c)  lb.  s.  39.  (d)  lb.  s.  39. 

H2 


148 


EECEIVER's  matters — JURISDICTION. 


Landed 
Estates 
Jurisdic- 
tion. 


Eeceirer 
matters. 


May 

appoint 

Keceiver. 


Eeferences 
to  appoint 
Iteceirer. 


Extending 
Receiver. 


payment  of  specific  charges,  but  used  to  direct  the 
surplus  to  remain  in  Court  to  give  opportunity  for 
the  parties  interested  to  institute  proceedings  in 
Chancery,(e)  and  accordingly  it  would  not  make 
an  order  for  sale  of  land  on  foot  of  a  general  charge 
of  debts  created  by  will,(/)  nor  for  payment  of  a 
legacy  not  specifically  charged  on  the  land.((7). 

(179.)  On  a  vacancy  in  the  ofiice  of  Receiver- 
Master,  the  powers  and  duties  vested  in  and  per- 
formed by  the  Receiver-Master  in  reference  to  the 
management  of  landed  estates  and  the  supervision 
and  control  of  Receivers  over  same,  are  to  be  exercised 
by  the  junior  of  the  Land  Judges,  and  all  matters 
and  business  pending  in  the  office  of  the  Receiver- 
Master  in  reference  to  Receivers  in  Chancery  or 
Lunacy,  and  the  accounting  of  Receivers,  and  the 
lettino;  and  manairement  of  estates  are  to  be  trans 
ferred  to  the  Land  Judges,  or  one  of  them,  in  the 
same  manner  as  they  would  have  been  prosecuted 
and  conducted  before  the  Receiver-Master.  (/?) 

(180.)  Applications  to  appoint  a  Receiver  over 
land,  where  the  land  is  the  subject  of  a  proceeding 
before  the  Land  Judges,  are  to  be  made  to  the  Land 
Judge  to  whom  the  proceeding  is  attached. (i) 

(181.)  All  future  references  to  appoint  Receivers 
over  lands  made  by  any  Judge  of  the  High  Court  or 
in  Lunacy  (where  the  Receiver  is  not  appointed  by 
the  Judge  himself)  shall  be  made  to  the  junior  of 
the  Land  Judges.(y) 

(182.)  When  once  a  Receiver  is  appointed  over 
land,  either  by  a  Land  Judge  or  by  any  other  Judge 
of  the  High  Court  having  power  to  appoint  one,  it 

(e)  In  re  Bateman,  6  Ir.  Jur.  N.S.,  1G2. 
(/)  In  re  Wamock's  Estate,  Ir.  Rep.,  8  Eq.,  239,  L.  E.  C. 
((/)  In  re  Carson's  Estate,  Ir.  Kep.,  4  Eq.,  555.     In  re  Cuthbert's 
Estate,  Ir.  Rep.,  4  Eq.,  573. 
(A)  J.  A..,  1877, 8.  75,  §  2  &  §  13.  (i)  lb.  s.  39. 

ij)  lb.  3.  75,  §  4  &  §  13. 


EXTENDING  RECEIVER'S  TO  OTHER  CLAIMS.  149 

will  not  be  necessary  for  any  party  claiming  to  be  Landed 
entitled  to  or  interested  in  the  rents  of  the  lands  juHsiUc- 
over  which  the  Receiver  has  been  appointed  to  file  i^ 
any  bill,(/v)  or  institute  any  other  cause  or  proceed- 
ings to  have  the  Receiver  extended  to  his  claim,  but 
he  may  apply  by  summary  motion  to  a  Land  Judge 
to  have  the  Receiver  extended  to  his  claim.  On 
hearing  such  an  application,  the  Judge  may  either 
grant  the  application  or  order  a  bill  to  be  filed,  or 
other  proceeding  to  be  instituted  for  the  purpose  of 
ascertaining  the  rights  of  the  party  applying  ;  and 
the  costs  of  a  suit,  cause,  or  other  proceeding,  the 
object  of  which  shall  be  the  taking  an  account  on 
foot  of  any  mortgage  or  other  security  affecting  land, 
and  the  extension  of  a  Receiver  already  appointed 
to  the  matter  of  said  suit,  cause,  or  other  proceed- 
ing, shall  not  be  allowed  unless  it  shall  have 
been  commenced  by  direction  of  one  of  the  Land 
Judges.(^) 

(183.)  All  appeals  from  orders  of  the  Land  Judges  Appeals 
as  to  receiver  matters  are  to  be  brought  to  the 
Court  of  Appeal  and  not  to  the  particular  Judge 
who  made  the  reference. (771)  In  other  matters  than 
receiver  matters  the  appeal  is  also  to  the  Court  of 
Appeal. 


CHAPTER  XY. 
Probate  and  Admiralty  Jurisdiction. 

184.  Testamentary  and  Matrimonial  Matters,  p.  149. 

l.So.  Establishment  of  Wills  as  to  Realty,  150. 

186.  Rules  and  Orders  of  Court,  152. 

187.  Admiralty  annexed  to  Probate,  153. 


(184.)  One  clause  of  the  Judicature  Act  provides  Testament 
that  every  testamentary  or  matrimonial  proceeding  matri^." 


(A-)  Sic  in  J.  A.,  1877, 3.  40.      (/)  lb.  s.  40.       (m)  lb.  s.  75,  §  6. 


monial 
matters. 


150  TESTAMENTARY  MATTERS — ESTABLISHMENT  OF  WILLS. 

Prohate  and  niiist  be  commenced  in  the  Probate  and  Matri- 
^/urisdic-  monial  Division,  and  addressed  to  the  Judge  of 
^'"""-  that  Division  for  the  time  being,  (a)  Another 
clause  declares  that,  subject  to  any  rules  of  Court 
and  the  power  of  transfer,  all  causes  and  matters 
which  would  have  been  wdthin  the  exclusive  cogni- 
zance of  the  Court  of  Probate  or  the  Court  for 
Matrimonial  Causes  and  Matters  shall  be  assigned 
to  the  Judge  of  the  Court  of  Probate  and  Matri- 
monial Division.  (6) 

Whether  these  two  provisions  are  to  be  referred 
to  the  same  class  of  causes  and  matters  testamen- 
tary, it  is  not  very  clear. 

Perhaps  the  expression  "  testamentary  proceed- 
ings "  is  to  be  understood  as  referring  to  "  matters 
and  causes  testamentary,"  defined  in  the  Probate 
Act  as  comprehending  "  all  matters  and  causes 
relating  to  the  grant  and  revocation  of  probate  of 
wills  or  of  administration. (c) 

The  latter  clause  will  probably  include  cases  by 

way  of  appeal  from  Chairmen  at  Quarter  Sessions, 

under  the  20  &  21  Vic,  c.  79,  s.  62,{d)  and  cases 

under  the  Legitimacy  Declaration  Act,  18G8.(e) 

Establish-        (185.)  The  establishment  of  will.s,  both  as  to  real 

ment  of  '  ii  ti 

wills.  and  personal  property,  would  seem  to  be  peculiarly 

appropriate  for  assignation  to  the  Probate  Division, 
but  it  was  not  within  the  exclusive  juri.sdiction  of 
the  Court  of  Probate  in  our  former  judicature,  as  the 
question  of  fact  might  be  tried  in  an  action  of  eject- 
ment, in  any  of  the  Common  Law  Courts,  and  the 
Court  of  Chancery  might  entertain  a  suit  to 
establish  a  will  where  necessary  for  the  adminis- 
tration   or    mai-shalling   of   assets,   or    where   the 

(a)  J.  A.,  1877,  s.  37,  §  3.  (i)  lb-  s.  47. 

(c)  20  &  21  Vic,  c.  79,  s.  2. 

(f/)  See  as  to  form  of  Kevil  r.  Lynch,  Ir.  Rep.,  f)  Eq.,  249,  Pro. 
(e)  See  A.  B.  v.  Attorney-General,  Ir.  Rep.,  4  Eq.,  5G  Pro. 


ESTABLISHMENT  OF  WILLS  AS  TO  REALTY.  151 

devisee  of  the  le^al  estate,  who  was  in  possession,  Probateand 

°  '         ^     _  ,      ^  .  Admiralty 

claimed  to  obtain  a  perpetual  injunction  against  a   jurisdic- 
person  who  claimed  to  be  heir-at-law,  but  who  had      — ." 
brought  no    action   of   ejectment  as   yet,  to   pre- 
vent  him   afterwards   attempting  to  impeach  the 
wiU.(/) 

Wills  affecting  real  estate  as  well  as  personal  might 
be  proved  in  the  Probate  Court  in  solemn  form,  or  in 
a  contentious  suit,  provided  the  heir  or  devisee  was 
cited, (<7)  and,  if  proved,  the  decree  of  the  Court  was 
binding  on  all  persons  interested  in  the  real  estate  so 
far  as  the  validity  and  contents  of  the  will,(/i)  and 
probate  copies  of  all  wills  made  after  1st  January, 
1858,  were  made  conclusive  evidence  of  the  will  in 
questions  of  real  estate  as  well  as  of  personal,(i)  and 
as  regards  other  wills,  a  probate  and  office  copy  may 
be  made  evidence  of  the  will,  in  lieu  of  producing 
the  original,  in  questions  of  real  property,  on 
giving  notice  of  the  intention  to  use  it,  unless  a 
counter-notice  is  given  by  a  party  that  he  disputes 
the  validity  of  the  will.(j) 

Where  the  will  related  to  realty  and  personalty, 
although  the  heir-at-law  was  not  cited,  yet  if  he  had 
notice  or  knowledge  of  the  testamentary  suit  he 
was  held  bound  by  the  decree,  so  far  as  the  person- 
alty, and  he  might  dispute  it  as  to  the  realty.  (I') 

But  where  the  will  was  exclusively  conversant 
wath  real  property,  the  Court  of  Probate  had  no 
jurisdiction  as  regards  the  heir-at-law  to  grant  pro- 
bate, although  the  testator  charged  his  debts  and 
legacies  to  be  paid  out  of  it  \{l)  but  if  the  heir  con- 

(/)  See  Boyse  v.  Rossborough,  Kay  71,  Story,  §  1445-7. 
{g)  Probate  Act,  20  &  21  Vic,  c.  79,  s.  65 ;  see  b.  41. 
Qi)  Ih.  s.  66.  (0  Ih.  s.  66.  U  )  Ih.  s.  68. 

(/t)  Moran  v.  Moran,  Ir.  Rep.,  8  Eq.,  303 ;  see  O'Kelly  v.  Browne, 
Ir.  Rep.,  9  Eq.,  353,  Prob. 

(0  Bootle  in  re  L.  R.,  3  Prob.  &  Div.  177. 


152 


RULES  AND  ORDERS  OF  COURT  OF  PROBATE. 


Bules  and 
orders  of 
Probate, 
&c. 


Probate  and  sciited  Or  had  notice  he  might  be  bound  by  probate 
Iruri^dk-   as  regards  the  personalty,  (m) 
!!!!!;  The  heir-at-law  is  entitled  to  a  trial  by  jury,(w) 

which  may  be  directed  to  the  assizes,  but  is  gene- 
rally had  in  Dublin. (o) 

The  Court  of  Probate  was  prohibited  from  enter- 
taininfif  suits  for  legacies  or  for  the  distribution  of 
residue,  its  old  jurisdiction  in  that  respect  having 
been  abolished,  (p) 

(186.)  The  rules  and  orders  of  the  Court  of  Pro- 
bate and  the  Court  for  Matrimonial  Causes  and 
matters,  in  force  on  the  1st  day  of  January,  1877, 
are,  except  so  far  as  they  shall  be  by  rules  of  Court 
expressly  varied,  to  remain  in  force  in  the  High 
Court  of  Justice  and  in  the  Court  of  Appeal  in  all 
respects  as  if  they  had  been  rules  of  Court  under 
the  Judicature  Act.(q) 

The  Court  of  Probate  in  aid  of  proceedings  in  the 
Court  of  Chancery  used  sometimes  relax  its  rules 
as  to  requiring  from  an  administrator  justifying 
security  on  granting  administration,  and  it  provided 
for  the  safety  of  the  assets  by  impounding  the  grant 
and  allowing  it  to  be  used  as  circumstances  might 
require,  (r) 

Where  a  decree  for  administration  in  favour  of 
the  administratrix  had  been  made,  but  not  passed 
until  the  production  of  the  letters,  the  Judge 
directed  the  officer  of  the  Probate  Court  to  attend 
the  Registrar  of  the  Court  of  Chancery,  with  the 
letters  of  administration,  at  any  proper  time  that 
might  be  named,  and  when  the  decree  had  been 


(ot)  Lawless  V.  Lawless,  Ir.  Kep.,  3  Eq.  87. 

(«)  20  &  21  Vic,  c.  79,  s.  41.  See  Isaac  v.  Grant,  Ir.  Rep.,  8  Eq., 
253,  Rrob.,  as  to  form  of  issues,  (o)  See  Fleming  v.  Fleming,  Ir.  Rep., 
7  Eq.,  409,  Prob. 

(],)  See  20  &  21  Vic,  c  79,  s.  28.  (q)  J.  A.,  1877,  s.  04. 

(r)  See  in  re  Goods  of  Vaughan,  Ir.  Rep.,  10  Eq.,  1  Prob. 


ADMIRALTY  JURISDICTION  ANNEXED  TO  PROBATE,  153 

passed  the  party  might  apply  to  the  Court  of  Probate  Probate  and 

f         ■.    T  ?     1        1  ,1  1      •     •   J.  Admiralty 

lor  dehvery  out  oi  the  letters  to  the  admmistra-    jurisdic- 

,    .      /  X  tion. 

trix.(s)  . — 

(187.)  When  the  existing  Judge  of  the  High  Court  Admiralty 
of  Admiralty  shall  die  or  resign,  no  person  shall  be  annexed  to 
appointed  to  succeed  him  in  his  office,  and  all  the 
jurisdiction  vested  in  him  will  be  transferred  to 
the  High  Court  of  Justice  to  be  exercised  by  some 
J  udge  of  the  High  Court  of  J  ustice  appointed  to  be 
a  Judge  since  the  1st  day  of  January,  1874,  or  such 
Judge  appointed  before  that  date,  who  shall  consent 
thereto,  to  be  nominated  by  the  Lord  Lieutenant. (^) 
This  arrangement  is  provisional,  and  until  the 
vacancy  next  ensuing  after  the  passing  of  the  Act, 
in  the  office  of  Judge  of  the  Probate  and  Matri- 
monial Division,  shall  have  been  filled  up,  after  which 
all  the  jurisdiction  in  Admiralty  matters  then  vested 
in  the  Judge  appointed  by  the  Lord  Lieutenant  will 
be  transferred  to  and  vested  in  the  new  Judge  of 
the  Probate  Division,  and  all  causes  and  proceedings 
in  Admiralty  are  to  be  heard  before  him.(u) 

The  Court  of  Admiralty  has  jurisdiction  to  award 
damages,  under  Lord  Campbell's  Act,  for  loss  of  life 
occasioned  by  improper  navigation  of  ships,  (v) 

(s)  See  in  re  Goods  of  John  O'Brien,  Ir.  Rep.,  9  Eq.,  214,  Prob.; 
and  see  in  re  Goods  of  Richardson,  35  Law  Times,  767,  where  it  is  stated 
the  Judge  acted  on  the  certificate  of  the  Judge  of  the  Chancery  Division 
that  it  was  expedient  to  issue  the  grant. 

(0  J.  A.,  1877,  s.  9.  (m)  n. 

Iv)  See  the  Franconia,  L.  R.  2,  Prob.  D.  163. 


h3 


[  1'^^  ] 


Jurisdic- 
tion of 
commis- 
sions of 
assize 
and  gaol 
delivery. 


Criminal 
procedure. 


"Writ  of 
error  in 
criminal 
matters. 


CHAPTER  XVI. 

Criminal  Jurisdiction  and  Courts  of  Assize. 

188.  Jurisdiction  of  Courts  of  Assize  and  Gaol  Delivery,  p.  lo'i. 

189.  Criminal  procedure,  15-i. 

190.  "Writ  of  error  in  criminal  matters,  154. 

191.  No  appeal  except  for  error  apparent,  155. 

192.  Crown  cases  reserved,  155. 

193.  Decisions  final,  155. 


(188.)  The  Act  expressly  includes  within  the 
courts  whose  jurisdiction  is  transferred  to  the  High 
Court  of  Justice,  the  courts  created  by  commis- 
sions of  assize,  of  Oyer  and  Terminer,  and  of  Gaol 
Delivery,  or  any  of  such  commissions,  and  declares 
that  nothino-  contained  in  the  Act  shall  abridge  or 
alter  the  jurisdiction  conferred  by  any  statute  upon 
any  judge  or  judges,  Commissioner  or  Commissioners 
of  Assize. ((x) 

Courts  of  Oyer  and  Terminer  and  Gaol  Delivery, 
and  of  Assize  and  Nisi  Prius,  were  Superior  Courts, 
and  could  as  such  commit  for  contempt  upon  a 
general  warrant  not  stating  the  nature  of  the  con- 
tempt or  the  facts  showing  there  was  a  contempt,  as 
Inferior  Courts  were  bound  to  do.  (6) 

(18.9.)  Until  rules  of  court  are  made  pursuant  to 
the  Act,  the  practice  and  procedure  in  all  criminal 
causes  and  matters  in  the  High  Court  of  Justice 
(including  the  practice  and  procedure  with  respect 
to  Crown  cases  reserved)  will  be  the  same  as  the 
practice  and  procedure  in  similar  causes  and  matters 
were  before  the  Act.(c) 

(190.)  A  writ  of  error  to  the  House  of  Lords  may 
issue  in  cases  on  the  Crown  side  of  the  Queen's 
Bench  Division  in  like  manner  and  sulycct  to  like 


(a)  J.  A.,  1877,8.21. 

(6)  Ex  parte  Jose  Luis  Fornnndez,  10  C.  B. 
M'Aleece,  Jr.  Rep.  7  C.  L.  HG,  Q.  B. 
(c)  J.  A.,  1877,  3.  G5. 


N.  S.  3.     In  re  Daniel 


WRIT  OF  ERROR  AND  APPEAL.  155 

conditions  and  permission  (d)  and  in  respect  of  like    Criminal 
proceedings  as  such  writ  would  have  issued  from      uon.  '  ' 
the  Court  of  Queen's  Bench  if  the  Act  had  not 
passed,  (e) 

(191.)  No  appeal  will  lie  from  any  judgment  of  No  appeal 
the  High  Court  of  Justice  in  any  criminal  cause  or  for  error 
matter,  save  for  error  apparent  on  the  record  and  as  '^pp^''*'"*- 
to  which  no  question  has  been  reserved  for  the  con- 
sideration of  the  judges  by  the  Act  11  &  12  Vic,  c. 
78.(/) 

(192.)  The  jurisdiction  and  authorities  in  relation  crown 
to  questions  of  law  arising  in  criminal  trials  for-  reserved, 
merly  vested  in  the  twelve  Common  Law  Judges  by 
Act  11  &  12  Vict.,  c.  78,  is  now  vested  in  the  Judges 
of  the  High  Court  of  Justice,  or  any  five  of  them,  of 
whom  one  at  least  of  the  three  Chief  Judges  shall 
be  part.(^) 

(193.)  The  determination  by  the  Judges  of  the  Decision 
High  Court  of  any  question  of  law  reserved  is  final 
and  without  appeal. (/«.) 


CHAPTER  XVII. 
Jurisdiction  of  Single  Judge. 

194.  Jurisdiction  iu  Court  or  at  Chambers,  p.  155. 

195.  Judge  at  Nisi  Prius,  156. 

196.  Commissioner  to  try  causes,  &c.,  156. 

198.  Discharging  orders  made  at  Chambers,  157. 


(194.)  Any  single  Judge  of  the  High  Court  of  junsdic- 
Justice,  may  exercise  in  Court  or  in  Chambers,  all  or  gjngie  judge 
any  part  of  the  iurisdiction  vested  in  the  Hicfh  in  court  and 

•^     1-  -J  t>      chambers. 

Court,  in  all  such  causes  and  matters,  and  in  all  such 
proceedings  in  any  causes  or  matters,  as  before  the 
passing  of  the  Act  might  have  been  heard  in  Court 


(cQ   Vide  ante  (160),  p.  135. 

(e)  J.  A.,  1877,  s.  65,  and  vide  infra,  s.(202). 

(/)  lb.  s.  50.  (^)  lb.  s.  50.  (/i)  lb.  s.  50. 


JUDGE  AT  NISI  PEIUS  FOR  COMMISSIONS. 


Single 

Judge, 

Jurisdic- 

tio7i  of. 


Right  of 
guitor  to 
resort  to. 


or  in  chambers  respectively  by  a  single  Judge  of 
any  of  the  Courts,  whose  jurisdiction  has  been 
transferred  to  the  High  Court,  or  as  may  be  directed 
or  authorized  to  be  so  heard  by  rules  of  Court.  In 
all  such  cases  any  Judge  sitting  in  Court  consti- 
tutes a  Court,  (a)  In  matters  pertaining  to  the 
Chancery  division,  a  single  Judge  will  be  competent 
as  heretofore  to  hear  and  determine  causes  in  Court, 
whereas  in  causes  belonging  to  the  Common  Law 
divisions — those  formerly  disposed  of  in  Banco — a 
single  Judge  will  probably  not  be  competent  to  act 
alone  unless  by  consent  of  parties,  or  unless  rules  of 
Court  make  provision  in  that  behalf. 

(195.)  Any  Judge  of  the  High  Court  of  Justice 
sitting  for  the  trial  of  causes  and  issues  in  Dublin,  (6) 
at  any  place  heretofore  accustomed,  or  to  be  here- 
after determined  by  rules  of  Court,  is  to  be  deemed 
a  Court  of  the  High  Court  of  Justice.  (6)  This 
appears  to  confer  on  the  Judge  every  jurisdiction 
which  the  High  Court  possesses.  Formerly  Courts 
of  Nisi  Prius  and  of  Assizes  on  Circuit  were  mere 
Courts  of  trial,  and  had  no  power  to  give  judgment, 
except  in  rare  statutory  cases. 

(196.)  Any  Judge  or  other  person  appointed 
under  a  commission  to  try  and  determine  causes 
or  matters,  or  questions  or  issues  of  law  or  of  fact, 
or  partly  of  fact  and  partly  of  law,  in  any  cause  or 
matter  depending  in  the  High  Court,  when  engaged 
in  the  exercise  of  the  jurisdiction  assigned  to  him 
under  the  32nd  section  of  the  Judicature  Act, 
constitutes  a  Court  of  the  High  Court  of  Justice.(c) 

(197.)  Subject  to  the  power  of  transfer,  any  party 
to  any  cause  or  matter  involving  the  trial  of  a  ques- 
tion or  issue  of  fact,  or  partly  of  fact  and  partly  of 
law,  may  with  the  leave  of  the  Judge  or  division 


(«)  J.  A.,  1877,  s.  44.         (_h)  lb.  s.  33.         (c)  lb.  s.  '^'l 


DISCHARGING  ORDERS  MADE  AT  CHAMBERS.  157 

to  which  the  cause  or  matter  is  assigned,  require     sjyie 

•11  Judge, 

the  question  or  issue  to  be  tried  and  determined  by  juHsdic- 
a  Commissioner,  or  at  sittings  in  Dublin,  and  me  — 
question  or  issue  shall  be  tried  and  determined 
accordingly,  (d)  By  consent  of  all  the  parties  to 
the  cause,  any  cause  or  matter,  though  not  involving 
any  question  or  issue  of  fact,  may  be  tried  and  de- 
termined at  a  commission  or  sittings. (e) 

(198.)  Every  order  made  by  a  Judge  of  the  High  Discharging 
Court  in  chambers,  except  orders  made  in  the  exer-  chambers. 
cise  of  his  discretion  as  to  costs  in  cases  where, 
under  the  Act,  a  right  of  appeal  is  not  expressly 
given,  may  be  set  aside  or  discharged  upon  notice, 
by  any  divisional  Court,  or  by  the  Judge  sitting  in 
Court,  according  to  the  course  and  practice  of  the 
division  of  the  High  Court  to  which  the  particular 
cause  or  matter  in  which  the  order  is  made,  may  be 
assigned.  No  appeal  lies  from  any  such  order,  un-  Appeals 
less  such  a  motion  to  set  it  aside  or  discharge  it  has 
been  made,  or  unless  the  Judge  making  the  order, 
or  the  Court  of  Appeal  specially  gives  leave  to 
appeal. (/)  If  the  appeal  should  come^  as  it  may, 
before  a  divisional  Court,  different  from  that  to 
which  the  cause  is  attached,  the  Court  will  decide 
the  case  according  to  the  practice  of  the  latter 
division,  though  different  from  that  of  the  division 
to  which  the  Judges  happen  to  belong,  (^r) 


(d)  J.  A.,  1877,  s.  32.  (e)  lb.  if)  lb.  s.  54. 

{g)  See  Pacey  v.  Loudon  Tramways  Co.,  20  Sol.  Jour.  412. 


[     158     ] 

CHAPTER  XVIII. 

Jurisdiction  of  Court  of  Appeal. 

198.  Jurisdiction  transferred  to,  p.  158. 

199.  Appeals  from  Orders  of  High  Court,  158. 

200.  Where  no  Appeal  lies,  1 59. 

201.  Land  Cases  Reserved,  159. 

202.  Criminal  Cases,  159. 

203.  Primary  Jurisdiction,  160. 

204.  Number  of  Judges  to  constitute  Court,  161. 

205.  Incidental  Directions  by  Single  Judge,  161. 

206.  Authority  over  Officers,  161. 


A  Court  of  (198.)  The  Court  of  Appeal  is  constituted  a 
Superior  Court  of  Record,  and  there  is  transferred 
to  and  vested  in  it  all  the  jurisdictions  and  powers 
following : — 

jurisdic-  1st.  All  jurisdiction  and  powers  of  the  Lord  Chan- 

ferred.  cellor  and  of  the  Court  of  Appeal  in  Chancery  in 
the  exercise  of  his  and  its  appellate  jurisdiction, 
and  of  the"  same  Court  of  Appeal  sitting  on  appeals 
from  the  Court  of  Probate,  the  Court  for  Matri- 
monial Causes  and  Matters,  the  Landed  Estates 
Court,  the  High  Court  of  Admiralty,  or  the  Court 
of  Bankruptcy. 

Exchequer  2nd.  All  jurisdiction  and  powers  of  the  Court  of 
Exchequer  Chamber,  including  its  appellate  juris- 

RegiRtni-     diction  in  appeals  under  the  Registration  of  Voters 

*'?"*"        \cN 

Toters.  PILOUS. 

Land  cases       '3rd.  All  j  urisdiction  and  powers  of  the  Court  for 
reserved.     Lj^^j  Cases    Reserved    at  Dublin  under  the  pro- 
visions of  the  Landlord  and  Tenant  Act,  1870.(«) 

4th.  The  jurisdiction  on  writs  of  error  in  criminal 
cases  on  appeal  from  the  Queen's  Bench  Division  of 
the  High  Court  of  Justice. (6) 
Appeals  (199.)  The  Court  of  Appeal  has  jurisdiction  and 

from  orders  ,        ,  i      i    i  •  i        r 

of  High       power  to  hear  and  detcrmme   appeals  .irom   any 
^°"'^^'        judgment  or  order  (with  some  exceptions)(c)  of  the 

(o)  33  &  34  Vic,  c.  46.  (6)  J.  A.,  1877,  s.  23,  subs,  (4) 

(c)  See  infra,  s.  (200). 


WHERE  XO  APPEAL  LIES.  159 

High  Court  of  Justice  or  of  any  Judges  or  Judge    Covrt  of 
thereof,  subject  to  such  rules  and  orders  of  Court    juHsdic- 
for  reofulatino-  the  terms  and  conditions  on  which      f!^ 
the  appeal  shall  be  allowed  as  may  be  made  pur- 
suant to  the  Judicature  Act.(d) 

Appeals  from  the  Court  of  Bankruptcy  are 
noticed  in  s.  8,  and  from  the  High  Court  of  Admi- 
ralty in  s.  9. 

(200.)  No  appeal  can  be  taken  to  any  order  made  where  no 
by  the  High  Court  of  Justice,  or  any  Judge  of  it, 
by  consent  of  parties,  or  as  to  costs  only,  being 
costs  which  by  law  are  left  to  the  discretion  of  the 
Court,  unless  by  leave  of  the  Court  or  Judge 
making  such  order.(e) 

Nor  can  an  appeal  be  taken  from  any  judgment 
founded  upon  and  applying  any  verdict,  unless  a 
motion  has  been  made  to  a  Divisional  Court  to  set 
aside  or  reverse  the  verdict  or  the  judgment,  if  any, 
founded  upon  it,  but  if  this  be  done  an  appeal  lies 
to  the  Court  of  Appeal  from  the  decision  of  the 
Divisional  Court.(/) 

(201.)  Any  person  aggrieved  by  any  decision  or  Land  cases 
order  upon  any  question  of  law  made  by  any  Judge  Appeal 
or  Judges  of  Assize  under  the  Landlord  and  Tenant 
(Ireland)  Act,  1870,  or  in  the  case  of  the  county  or 
the  county  of  the  city  of  Dublin  made  b}'  the 
Judges  mentioned  in  that  Act,  in  that  behalf,  may 
require  the  Judge  or  Judges  making  such  decision 
or  order  to  reserve  such  question  of  law  by  way  of 
case,  stated  for  the  consideration  of  the  Court  of 
Appeal,  and  the  same  thereupon  will  be  reserved 
in  the  foi-m  and  manner  prescribed  by  rules  made 
•in  pursuance  of  section  Sl{g)  of  that  Act.(/t) 

(202.)  In  criminal  cases  no  appeal  lies  from  any  Criminal 


(d)  J.  A.,  1877,  s.  24.  (0  lb.  s.  52  (f)  lb.  s.  51. 

(^)  33  &  34  Vic,  c.  46,  s.  31.  (^0  J-  A.,  1877,  s.  49. 


IGO  CRIMINAL  CASES — PRIMARY  JURISDICTION. 

Court  of  judgment   of    the  High   Court,   except    for    error 
Jurisdic-    apparent  on  the  record,  nor  from  any  case  reserved 
^^      for  the  consideration  of  the  Judges.(i) 

When  error  appears  on  the  face  of  the  judgment 
or  order  in  a  criminal  matter,  an  appeal  will  lie  to 
the  Court  of  Appeal. 

A  writ  of  error  also  may  issue  to  the  House  of 
Lords  in  like  manner,  and  subject  to  like  conditions 
and  permission,  and  in  respect  of  like  proceedings, 
as  such  writ  would  have  issued  from  the  Court  of 
Queen's  Bench  before  the  Judicature  Act.{^' ) 

It  does  not  appear  whether  the  resort  to  a  writ 
of  error  is  to  be  an  alternative  to  the  right  to 
appeal,  or  whether  after  an  appeal  in  a  case  on  the 
Crown  side  of  the  Queen's  Bench  Division,  a  writ 
of  error  may  issue  to  the  House  of  Lords, 
rrimary  (203.)  For  all  the  purposes  of  and  incidental  to 

'  the  hearing  and  determination  of  an  appeal  within 
its  jurisdiction,  and  the  amendment,  execution,  and 
enforcement  of  any  judgment  or  order  made  on  the 
appeal,  and  for  the  purpose  of  every  other  autho- 
rity expressly  given  to  the  Court  of  Appeal  by  the 
Act,  it  possesses  all  the  power,  authority,  and  juris- 
diction vested  in  the  High  Court  of  Justice. (/v) 

The  jurisdiction  of  the  Court  of  Appeal  is  there- 
fore simply  appellate,  and  it  has  no  original  or  first 
instance  jurisdiction,  save  so  far  as  it  may  be  inci- 
dent to  the  determination  of  a  case  brought  before 
it  by  way  of  appeal,  (l) 

It  cannot  entertain  a  motion  fit  for  the  Chancery 
Division  although  the  Master  of  the  Rolls  be  sitting 
in  the  Court, (9>i)  nor  can  it  entertain  an  application 
to  rehear  or  set  aside  a  decree  made  on  fraudulent 

(i)  J.  A.,  1877,  s.  50.  (.;)  Ih.  s.  G5. 

(k)  lb.  s.  24.  (/)  lb.  s.  5. 

(to)  Glover  tJ.  Greenbank  Alkali  Co.,  W.N.  187G,  157,  A.  C. ;  and  see 
In  re  Oxeiiden,  21  Sol.  Jour.,  707,  L.JJ. 


NUMBER  OF  JUDGES — INCIDENTAL  ORDERS.  161 

evidence,  it  being  the  subject  of  an  action  to  set    Court  of 
aside  the  judgment  on  the  ground  of  fraud.(9i)  juHsdic- 

(204.)  Where  the  subject-matter  of  appeal  is  a      ^" 
final  order,  decree,  or  judgment,  the  appeal  must  be  Number  of 
heard  before  not  less  than  three  judges  of  the  court  constitute 
sitting  together.    Where  the  appeal  is  from  an  inter- 
locutory  order,  decree,  or  judgment,   it  must    be 
heard    before   not   less   than    two    judges    sitting 
together. 

Any  doubt,  whether  a  decree,  order,  or  judgment, 
is  final  or  interlocutory  is  to  be  determined  by  the 
Court  of  Appeal  itself  (o)  It  is  not  said  that  the 
presence  of  the  Lord  Chancellor,  as  the  President  of 
the  Court,  is  essential  to  the  legal  constitution  of  the 
Court. 

(205.)  Any  direction  incidental  to  a  proceeding  incidental 

\  ^  -J  ^  •  f-      1  1  directions 

in  appeal  not  involving  the  hearing  of  the  decree,  by  single 
judgment,  or  order,  whether  final  or  interlocutory, 
may  be  given  by  a  single  judge  of  the  court.(p) 

A  single  judge  may  at  any  time  in  vacation  make  interim 
any  interim  order  to  prevent  prejudice  to  the  claim  vacation, 
of  any  parties  pending  an  appeal  which  he  may 
think  fit,  but  any  such  order  may  be  discharged  or 
varied  by  the  Court  of  Appeal.  ((7) 

(206.)  The  authority  of  the  Court  of  Appeal  over  Authority 
the  ofiicers  attached  to  the  Court  with  respect  to  officers. 
any  duties  to  be  discharged  by  them  may  be  exer- 
cised by  the  Lord  Chancellor. (r) 


(n)  See  Flower  v.  Lloyd,  25  W.  R.  793,  A.  C. 
(o)  J.  A.,  1877,  s.  56,  §  2.  {p)  lb.  §  3.  (2)  lb. 

(/•)  lb.  s.  73,  §  15. 


PART  III. 


DISTRIBUTION   OF   BUSINESS. 


Chapter  XIX. — Distribution  of  Business. 

XX. — Option  of  Division  and  Transfers. 


[  164  ] 

CHAPTER  XIX. 

Distribution  of  Business. 

207.  Transfer  of  pending  causes  to  Supreme  Court,  p.  IGi. 
20S.  Distribution  by  General  Orders,  165. 

209.  Partial  distribution  by  Statute,  165. 

210.  Appropriation  of  pending  business,  165. 

211.  Future  business,  appropriation  of,  165. 

212.  Chancery  Division — 

(o)  Administration  suits,  166. 

(b)  Partnership  dissolutions,  and  accounts  of,  167. 

(c)  Action  of  Account,  168. 

(d)  Bill  in  Equitj'for  an  Account,  168. 

(f)  Redemption  and  Foreclosure  of  Mortgages,  169. 

(/)  Raising  portions,  169. 

(^r)  Sale  for  lien,  170. 

(^)  Execution  of  trusts,  170. 

(i)    Rectification  and  cancellation  of  deeds,  170. 

(_/)  Specific  performance,  171. 

(!•)  Partition  and  sale  of  estates,  171. 

(/)    Wardship  of  infants,  172. 

213.  Audit  of  Public  Accounts,  173. 

214.  Chancery  matters  not  assigned,  173. 

215.  Queen's  Bench  Division,  173. 

216.  Common  Pleas  Division,  174. 

217.  Exchequer  Division,  174. 

218.  Common  Law  Actions  not  assigned,  174. 

219.  Assignment  to  a  single  Judge,  175. 


(207.)  The  Judicature  Act(a)  directs  that  all 
causes, matters,  and  proceedings  whatsoever,  whether 
civil  or  criminal,  which  shall  be  pending  in  any  of 
the  courts  whose  jurisdiction  is  transferred  to  the 
Supreme  Court  of  Judicature,  shall  be  continued 
accordino^  to  its  nature  and  character,  viz.  : — 1st. 
Proceedings  in  error  and  on  appeal,  and  proceedings 
before  the  Court  of  Appeal  in  Chancery,  or  in  the 
Court  for  Land  Cases  Reserved  at  Dublin,  in  and 
before  the  Court  of  Appeal.  2nd.  As  to  all  other 
proceedings  in  and  before  the  High  Court  of  Justice. 

The  Court  of  Appeal  and  the  High  Court  of 
Justice  respectively  have  conferred  upon  them  the 
same  jurisdiction  in  relation  to  the  causes  and 
matters  and  proceedings  thus  transferred  to  them  as 
if  they  had  been  commenced  in  the  High  Court  of 

('/)  J.  A.,  1877,  s.  25. 


DISTRIBUTION  BY  ORDER — BY  STATUTE.  165 

Justice  or  the  Court  of  Appeal,  as  the  case  may  be,    Distribu- 

„  ,  Hon  of 

down   to   the   point   at  which   the   transier    took    Business. 

place.  (6)  Di^tribu 

C208.)  The  causes  and  matters  so  transferred  to  tion  by 

^  '  Ti  1  1       General 

the  High  Court  of  Justice,  as  well  as  those  to  be  orders, 
hereafter  commenced  in  the  High  Court  itself,  are 
to  be  distributed  amongst  its  several  divisions  and 
judges  in  such  manner  as  may  from  time  to  time  be 
determined  by  general  orders,  or  orders  of  transfer 
made  under  the  authority  of  the  Act.  (c) 

(209)  Until  rules  of  Court  for  the  purpose  are  Partial  cis- 

^  ^  •        ij?  1         tributionby 

made  and  subject  thereto,  the  statute  itself  makes  statute. 
a  partial  distribution  of  business,((i)  leaving  the 
matter  otherwise  in  the  option  of  the  plaintiff 
(subject  to  orders  of  transfer)  to  select  the  division 
to  which  he  will  assign  any  cause,  action,  or  matter 
to  be  hereafter  initiated,  (e) 

('210.)  Thus  the  statute  assigns  to  the  Chancery  Appropri- 

^  '  ■=  .  .  ,       ation  of 

Division  all    causes   and  matters  pending   in    the  pending 

lousiness* 

Court  of  Chancery  at  the  commencement  of  the  Act. 

]  st.  And  also  all  matters  pending  in  the  Landed 
Estates  Court,  to  be  attached  to  the  Land  Judges 
of  the  Chancery  Division. 

2nd.  To  the  Queen's  Bench  Division,  all  causes  and 
matters,  civil  and  criminal,  pending  in  the  Court  of 
Queen's  Bench. 

3rd.  To  the  Common  Pleas  Division  the  business 
pending  in  the  Court  of  Common  Pleas. 

4th.  To  the  Exchequer  Division,  all  the  business 
pending  in  the  Court  of  Exchequer. 

5th.  To  the  Probate  and  Matrimonial  Division,  all 
the  business  pending  in  the  Court  of  Probate  or 
Court  for  Matrimonial  Causes.  (/) 

(211.)  As  to  future  business,  the  statute  further  ^/^p'f^Xf 
assigns  to   each  Division   all  causes   and    matters  ^"^1°,?^^! 

(P)  J-  A.,  1877,  s.  25.  (c)  lb.  s.  35.  {d)  lb.  foJmer '^  ^^ 

(e)  lb.  s.  37.  (/)  lb-  s.  37,  subs.  (3).  Courts. 


166 


CHANCERY  DIVISION — ASSIGNMENT  TO. 


Distribu- 
tion of 
Biisitiess. 


which  belonged  to  the  exclusive  jurisdiction  of  the 
former  Court,  which  was  corresponding  to  the  new 
division,  ex.  gr. : 

1st.  To  the  Chancery  Division,  all  causes  and  mat- 
ters under  any  Act  of  Parliament  by  which  exclusive 
jurisdiction  was  given  to  the  Court  of  Chancery  or  its 
Judsres,  or  to  the  Landed  Estates  Court  or  its  Judges. 
But  every  proceeding  in  any  other  matter  within 
the  exclusive  jurisdiction  of  the  Landed  Estates 
Court,  before  or  under  the  provisions  of  the  Judica- 
ture Act,  though  commenced  in  the  Chancer}^  Divi- 
sion, is  to  be  addressed  to  the  Land  Judges  of  that 
Division,  (g) 

2nd.  To  the  Queen's  Bench  Division,  all  causes  and 
matters,  civil  or  criminal,  which  would  have  been 
within  the  exclusive  jurisdiction  of  the  Court  of 
Queen's  Bench,  in  the  exercise  of  its  original  juris- 
diction. 

3rd.  To  the  Common  Pleas  Division,  all  causes  and 
matters  wdiich  would  have  been  within  the  exclu- 
sive cognizance  of  the  Court  of  Common  Pleas. 

4th.  To  the  Exchequer  Division,  all  causes  and 
matters  which  vv^ould  have  been  within  the  exclu- 
sive cognizance  of  the  Court  of  Exchequer,  either  as 
a  Court  of  Revenue  or  as  a  Common  Law  Court. 

5th.  To  the  Probate  and  Matrimonial  Division,  all 
causes  and  matters  within  the  exclusive  cognizance 
of  the  Court  of  Probate,  or  Court  for  Matrimonial 
Causes  and  matters.  (Jt) 

(212.)  The  J.  A.(i)  specially  assigns  to  the  Chan- 
cery Division  ten  heads  of  the  former  special  juria- 
assignment.  ^^^^j^^^  ^f  ^-^^  Court  of  Chancery,  viz.,  all  causes 
and  matters  for  any  of  the  following  purposes : — 

{(I.)  Administration  suits,  and  matters  for  the 
administration  of  the  estates  of  deceased  persons. 


Chancery- 
division, 
special 


Adminis- 
tration 
suits. 


(jr)  J.  A.,  1877,  s.  37,  §  4. 


(A)  S.  3G,  §  G. 


(i)  J.  A.,  1«77,  s.  36,  §  1. 


PARTNERSHIP  AND  OTHER  ACCOUNTS.  167 

(h.)  The  dissolution  of  partnerships,  or  the  taking  Distribu- 
of  partnership  or  other  accounts.  Budn^s. 

An  account  was  almost  invariably  consequent  on  Diss^ion 
a  dissolution,  and  where  a  dissolution  was  not  souo-ht  of  .i^'^rtiier- 

o        siiip. 

an  account  of  the  partnership  affairs  would  not  be 
directed  unless  under  circumstances  which  would 
entitle  the  plaintiff  to  a  dissolution  if  he  had  prayed 
for  it ;( j)  indeed  an  action  for  an  account  by  one 
partner  against  another  necessarily  involved  a  disso- 
lution -jQc)  so  a  receiver  or  manager  of  partnership 
property  was  not  appointed  except  with  a  view  to 
dissolution.  (^) 

The  form  of  indorsement  of  claim  in  partnership 
given  in  the  schedule  of  forms('i7i)  indicates  that  the 
action  is  not  only  to  have  the  accounts  taken  of  the 
partnership  dealings  but  to  have  the  affairs  of  the 
partnership  wound  up. 

As  formerly  an  action  at  law  might  be  brought  by 
one  partner  against  another,  in  respect  of  any  parti- 
cular isolated  adventure  for  a  share  of  an  ascertained 
balance  after  a  partnership  had  closed,  so  now 
where  a  division  of  profits,  ex.  gr.,  on  a  simple  pub- 
lishing account,  is  sought  as  between  two  persons 
not  involving  complicated  accounts,  the  action  is 
not  necessarily  to  be  brought  in  the  Chancery  Divi- 
sion. (71) 

As  other  accounts  besides  partnership  accounts 
seem  to  be  assigned  to  the  Chancery  Division,  it 
may  be  well  to  notice  briefly  the  former  practice  and 
jurisdiction  of  Courts  of  Law  and  Equity  in  matters 
of  account. 


(_/)  See  Loscombe  v.  Eupell,  4  Sim.  10. 

(Jc)  In  the  Roman  law  it  operated  as  such.     Dig.  Lib.  1 7,  title  2, 
lex.  65. 

(0  Hall  V.  Hall,  3.  Mac.  &  Gor.  79 ;  Baxter  v.  West,  28  L.  J.  Ch.,  169. 
(m)  See  Appendix  of  Forms,  Part  ii.,  s.  1,  No.  3. 
(«)  See  Warne  v.  Bell,  W.  N.,  1875,  259. 


168  ACTION  OF  ACCOUNT  AT  LAW  AND  EQUITY, 

Distribu-       (c.)  At  law  an  action  of  account  might  be  broiiglit 

Business.  — Ist.  Against  a  bailiff  or  receiver  appointed  by  the 

ActioiTof    plaintiff  or  a  guardian  appointed  by  law  ;  2nd.  By 

account  at   ^^^  merchant  against  another,  regarded  in  the  light 

of  his  receiver ;  3rd.  By  one  joint  tenant  against 

another  who  received  more  than  his  share  of  the 

rents,  under  the  statute  6  Anne,  c.  10,  s.  23.  (o) 

Relief  in         {cl.)   In  a  Court  of  Equity  a  bill  for  an  account 

^*^"'  ^'        lay  in  the  following  cases  : — 

1st.  Between  a  principal  and  his  agent  or  steward, 
because  of  the  confidence  placed  by  the  former  in  the 
latter,  and  that  the  particulars  of  their  transactions 
were  almost  exclusively  in  his  knowledge.(p)  In 
the  converse  case,  i.e.,  between  agent  and  principal, 
there  was  ordinarily  no  such  element  of  trust  or 
special  knowledge  to  entitle  the  agent  to  an  account 
from  his  principal. (g') 

2nd.  Between  cestui  que  trust  and  his  trustee. 
The  remedy  was  not  open  as  between  debtor  and 
creditor  simply,  nor  as  between  a  customer  and  his 
banker  unless  the  transactions  were  long  and  com- 
plicated. (7') 

3rd.  Where  mutual  receipts  and  disbursements 
have  been  made  by  two  parties  each  for  the  other.(s) 
4th.  Where  special  complication  of  accounts 
exist,  such  that  they  could  not  be  taken  by  a 
jury,(^)  but  mere  multiplicity  of  items  did  not  war- 
rant a  resort  to  a  Court  of  Equity,  although  a  Judge 
at  Nisi  Prius  might  urge  the  parties  to  refer  the 

(o)  Kearney  v.  Kearney,  13  Ir.  Com.  Law  Kep.  314,  Q.  B. ;  Purcell 
V.  Harding.  15  W.  R.  128,  Q.  B.,  Ireland. 

(j))  See  Dinwiddie  v.  Bailey,  6  Ves.  141. 

(<7)  Padurek  v.  Stanley,  9  Hare,  C27. 

(r)  Foley  v.  Hill,  2  H.  L.  C,  28  ;  see  Pott  v.  Clegg,  16  M.  &  W.  321 ; 
see  as  between  an  architect  and  his  employer,  Kimberley  v.  Dick,  L.  K. 
13  Eq.  1. 

(«)  Phillips  V.  Phillips,  9  Hare,  471,  V.  C.  Turner. 

(<)  O'Connor  v.  Spaight,  1  Sch.  &  Lef.  305. 


REDEMPTION  AND  FORECLOSURE  OF  MORTGAGE.  169 

matter  to  arbitration, (it)  and  still  more  so  now  DisfrWutioi 
where  the  Common  Law  Judges  have  the  power,  '"'"^^^" 
on  the  application  of  either  party,  and  it  appearing 
that  the  matter  in  dispute  consists  wholly  or  in 
part  of  matters  of  account  which  cannot  con- 
veniently be  tried  in  the  ordinary  way,  either  to 
decide  such  matter  in  a  summary  way  or  to  order  the 
matter  to  be  referred  to  an  arbitrator  to  be  appointed 
by  the  parties,  or  to  the  Master  of  the  Court,  or 
in  country  causes  to  the  Assistant  Barrister  of  any 
county  or  riding  on  such  terms  as  to  costs  and  other- 
wise as  the  Court  or  Judge  shall  think  reasonable."(v) 

5th.  Account  in  equity  was  given  as  incidental  -otiior 
to  other  heads  of  relief,  such  as  administration  of '""'^'^^""'' 
assets,  foreclosure  and  redemption  of  mortgages, 
dissolution  of  partnership,  and  in  respect  of  equit- 
able claims  generally  ;  and  this  would  seem  to  be 
the  scope  of  the  clause  assigning  "  other  accounts  " 
to  the  Chancery  Division,  but  it  does  not  seem  to 
contemplate  that  every  case  growing  out  of  privity 
of  contract,  which  may  happen  to  involve  an 
account  simple  and  ordinary  in  its  character,  should 
be  attached  to  the  Chancery  Division,  (w) 

(e.)  The  redemption  or  foreclosure  of  mortgages.  Redemp- 
A  form  of  indorsement  of  claim  by  mortgagee  for  forecio^re 
an  account  and  foreclosure  of  sale  is  given  in  the  ga^g'^^' 
Form  No.  4,  and  by  mortgagor  for  an  account  and 
redemption.  No.  5  of  Appendix  A,  part  2,  sect.  1. 

(/.)  The  raising  of  portions  or  other  charges  on  Raising 
land.     A  form  of  indorsement  of  claim  to  raise  a 
portion   by  younger  children  provided   by  settle- 
ment wiU  be  seen  in  Form  No.  6  of  same  appendix. 

(«)  South-Easteru  Ry.  Co.  v.  Martin,  2  Ph.  758 ;  see  T.  Phillips  v. 
Phillips,  9  Hare,  at  p.  474,  V.  C.  Turner;  but  where  the  rights  of  third 
parties  are  intermixed,  see  Taff  Vale  Ry.  Co.  v.  Nixon,  1  H.  L.  C.  Ill, 

(y)  See  C.  L.  Pro.  Act,  1856,  s.  6.     Ferg.  2nd  Edn.  303. 

(w)  See  Warne  v.  Bell,  W.  N.  1875,  259. 

I 


SALE  FOR  LIEN — EXECUTION  OF  TRUSTS. 


Distrlhntion 
of  Business. 


((J.)  The  sale  and  distribution  of  the  proceeds  of 
property,  subject  to  any  lien  or  charge. 

For  the  purpose  of  this  subsection  it  will  be 
well  to  observe  the  distinction  between  a  lien  and 
a  debt.(a;) 

(A.)  The  execution  of  trusts  whether  charitable 
or  j)rivate. 

This  does  not  seem  to  include  actions  simply  for 
a  declaration  of  trust,  and  not  its  execution. (v/) 

(i.)  The  rectification  or  setting  aside  and  cancel- 
lation of  deeds  or  other  written  instruments. 

In  order  to  the  rectification  of  a  written  instru- 
ment on  the  ground  of  mistake,  the  mistake  must 
be  common  to  all  parties,  and  in  such  a  state  of 
things  relief  may  be  had  in  respect  even  of  a 
marriage  settlement. (0)  But  where  the  mistake  is 
one-sided  the  instrument  cannot  be  reformed  (a) 
though  it  may  be  rescinded,  provided  the  Court 
can  remit  the  parties  to  their  original  position.  If, 
however,  the  mistake  is  one-sided,  and  this  restitutio 
in  integrum  cannot  be  accomplished  (as  in  the  case 
of  a  marriage  contract),  equity  will  not  interfere ; 
whereas,  if  the  mistake  were  mutual,  it  might  do  so, 
and  the  mistake  being  unilateral  even  a  Court  of  law 
would  consider  it  a  defence  to  an  action  on  an  instru- 
ment although  forming  part  of  a  completed  contract 
of  marriage.  (6)  But  although  rectification  for  mis- 
take on  one  side  could  not  in  any  case  be  forced  on 
a  defendant  in  equity,  the  Court  might  offer  liim  the 


(x)  See  British  Mutual  Livestment  Company  v.  Smart,  L.  K.,  10 
Ch.,  567.  Morris  v.  Livie,  1  You.  &  C,  Ch,  380,  ]\LicNamara  v. 
Church,  1  Law  Rec.  N.  S.,  I  L.  C. 

(y)  See  Anon.,  W,  N.,  187G,  Denman,  J. 

(z)  llamil  V.  White,  3  Jo.  &  Lat.,  G'Jj.  King  v.  King-ILirman,  Ir. 
Rep.,  7  Eq.,  446,  V.  C. 

(rt)  Mortimer  v.  Shortall,  2  l>r.  &  War.,  363,  see  Fowler  v.  Fowler, 
4  De  Gcn:  &  Jo.,  273. 

(6)  See  Hogan  v.  Ilealy,  Ir.  Kep.,  11  C.  L.,  119,  E.\ch.  Cii. 


RECTIFICATION  AND  CANCELLATION  OF  DEEDS.  171 

alternative  of  having  the  contract  rescinded,  or  oi  DistrV.uUon 
taking  it  in  the  form  the  plaintiff  intended  it  to  be,  "  ^^***- 
and  of  course  restoring  the  defendant  to  his  original 
position. (c)  Concealment  of  a  material  fact  aifect- 
ing  the  subject-matter  of  the  contract  known  to 
one  party,  and  kept  back  from  the  otlier,  was  a 
ground  for  cancellation  of  the  instrument,  e.g.,  a 
lease,  and  not  for  reforming  it.(cZ) 

(/.)  The  specific  performance  of  contracts  be-  Specific 
tween  vendors  and  purchasers  of  land,  including  manoe. 
contracts  for  leases. 

And  also  the  specific  performance  of  any  other 
contracts  in  respect  of  which  a  Court  of  Equity 
decrees  performance. 

The  corresjDonding  section  of  the  J.  A.  1873,(e) 
omits  the  latter  clause,  and  is  apparently  confined 
to  cases  between  vendor  and  purchaser  of  real 
estates,  including  therein  contracts  for  leases,  and 
leaving  out  contracts  of  sale,  whether  of  leaseholds 
or  other  personaltj". 

(k.)  The  partition  or  sale  of  real  estates  (including  Partition 
chattels  real).     The  J.  A.,  1873,  s.  84,  omits  the  e rtltTs."  °^ 
inclusion  of  chattels  real,  the  partition  of  and  sale  of 
which  were  always  enforced  on  the  same  principles 
as  of  real  estates. 

The  Partition  Act,  1868,  31  &  32  Vic.  c.  40,  has 
made  a  considerable  change  in  the  jurisdiction  of 
the  Court  by  enabling  it  in  certain  cases  to  direct  a 
sale  instead  of  a  partition  of  the  common  property 
under  s.  4.  A  plaintiff  having  the  interest  in  a 
moiety  of  leasehold  property,  may  have  a  sale,  not- 
withstanding the  opposition  or  disability  of  the 
owner  of  the  other  moiety,   unless  the   objecting 

(c)  See  per  Lord  Romilly,  Ilairis  v.  Pepperell,  L,  R.,  5  Eq.,  at  p.  5. 
{(1)  See  Mostyn  v.  the  West  Mostyn  Coal  Company,  24  W.  R.,  401, 
C.P.D. 
(0  J.  A.,  1S73,  s.  34. 

i2 


172  PARTITION  OF  ESTATES — WARDSHIP  OF  INFANTS. 

Dhtrihniion  party  will  purchasG  under  section  5,  or  the  Court 

umMess.  ^^^^  good  rcason  why  a  sale  should  not  be  made.(/) 

It   is   not   good    cause    that   the   income   will    be 

materially    diminished    by    the   sale    of   a   lease- 

ho]d.(^) 

Wardship        (l\  The  Wardship  of  inftmts  and  care  of  infants' 

of  infanta.  ^    '^  ^ 

estates. 

The  protective  jurisdiction  of  the  Court  of  Chan- 
cery in  the  wardship  of  infants  was  of  a  judicial 
character,  and  as  such,  pertained  to  all  the  J  udges 
of  the  Court,  and  was  subject  to  appeal  to  the 
House  of  Lords. 

Whether  or  not  the  jurisdiction  was  independent 
of  the  possession  of  property,  the  Court,  as  a  gene- 
ral rule,  declined  to  exercise  it  where  there  was  no 
property  to  be  administered. (^-)  To  meet  this 
difficulty,  by  way  of  a  legal  fiction,  in  some  cases, 
even  small  sums,  such  as  £20,  have  been  vested  in 
trustees  for  the  benefit  of  the  infant.(i) 

The  jurisdiction  was  attached  by  the  mere  insti- 
tution of  a  suit  or  petition  preferred  in  relation  to 
the  person  or  estate  of  an  infant,  whether  as  plain- 
tiff or  as  defendant,  he  becoming  'vpso  facto  a  ward 
of  Court,  (y)  even  before  the  petition  has  been 
fiated,(/i;)  and  an  order  made  under  the  Trustee 
Relief  Act  in  respect  of  money  belonging  to  a 
minor  directing  payment  of  maintenance  to  his 
testamentary  guardian   would   have   this  effect,(Z) 

(/)  Pemberton  v.  Barnes,  L.  R.,  6  Ch.  G85,  L.  C. 

(.7)  See  Rowe  v.  Gray,  1  Ch.  D.  2G.'3,  V.  C. 

{h)  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  21. 

(0  Andrews  v.  Salt,  L.  R.,  8  Ch.  G27.  In  re  O'JIalleys  Mi.,  8  Ir. 
Chan.  Rep.  291. 

0")  In  re  Graham,  L.  R.  10  Eq.  530;  Richards  v.  Truell,  6  L.  R. 
N.  S.  383,  M-  R. 

ik)  In  re  Baldwin,  3  L.  R.  N.  S.  48. 

(/)  In  re  Hodi^es'  Settlement,  3  K.  &  J.  213  ;  see  also  In  re  Graham, 
L.  R.,  10  Eq.,  530. 


CHANCERY  MATTERS  NOT  ASSIGNED.  173 

and  an  order  for  the  appointment  of  a  guardian  in  a  DistrUntUou 
suit  for  an  account  of  the  property  of  the  infant,  (m)        "^""^^^' 

Semble  now  will  the  acquisition  of  property  by 
the  judgment  of  the  Common  Law  Division  of  the 
High  Court  constitute  an  infant  plaintiif  a  ward  of 
Court. 

(213.)  Many  subjects  of  ordinary  Chancery  juris-  chancery 
diction  have  been  left  unappropriated.  Some  of  assiglud. 
these  had  been  already,  in  some  measure,  brought 
within  the  jurisdiction  of  the  Connnon  Law  Courts, 
such  as  Injunction,  Interpleader,  Discovery.  Others 
seem  now  for  the  first  time,  made  matter  of  co-ordi- 
nate authority  in  the  Common  Law  Divisions,  and 
subject  to  the  election  of  the  suitor.  Among  these 
may  be  mentioned,  actions  to  perpetuate  testi- 
mony,('/i)  and  in  the  nature  of  bills  of  peace,(o) 
Quia  timet,(p)  for  Declaration  of  rights, (g)  for 
review  and  reversal  of  judgments  and  decrees  of  the 
High  Court,  obtained  by  fraud  or  surprise.(r) 

So  an  action  to  declare  a  charge  on  the  separate 
estate  of  a  married  woman,  ex.  gr.,  in  respect  of  a 
guarantee  given  by  her,(s) 

(214.)  The  Queen's  Bench  Division  has  specially  Queen's 
assigned  to  it  besides  its  old  original  criminal  juris-  Division. 

(m)  Stuart  v.  Marquis  of  Bute,  9  H.  L.  C.  457. 

(n)  In  re  Tayleur  L.  R.  6  Cli.  416,  Earl  Spencer  v.  Peek,  L.  R, 
3  Eq.  415.  See  EUice  v.  Roupell,  32  Beav.  299  ;  and  as  to  mode  of 
taking  the  evidence,  see  Cook  v.  Hall,  9  Hare,  App,  xx.,  and  our 
Chancery  Act,  1867,  s.  98,  contra;  and  when  it  can  be  used,  see  Hill 
V.  Hibbet,  L.  R.  7  Eq.  421. 

(o)  See  Storey,  853  ;  Foxwellv.  Webster,  4  De  Gex,  Jo.  &  Sm.  77; 
Slieffield  Waterworks  v.  Yeomans,  L.  R.,  2  Ch.  8.  Allan  v.  Donnelh', 
5  Ir.  Chan.  Rep.  229.  Ashworth  v.  Browne,  10  Ir.  Chan.  Rep.  421, 
M.R.  Warwick  v.  Queen's  College,  L.  R.  10  Eq.  105,  6  Ch.  716. 
Commissioners  of  Sewers  v.  Glasse,  L.  R.  7  Ch.  464. 

(p)  See  Pattison  v.  Gilford,  L.  R.  1 8  Eq.  259.  Woolridge  v.  Norris, 
L.  R.  6  Eq.  410. 

(q)  See  Cox  v.  Barker,  W.  N,  1876,  210,  V.  C.  B. 

(r)  See  Flower  v.  Lloyd,  25  W,  R.,  793,  A.  C. 

(s)  See  MorreU  v.  Cowan,  25  W.  R.  808,  Ch.  D. 


174  queen's  bench — common  pleas — EXCHEQUER. 

DistrihtMon  diction,  and  superintendence  over  the  inferior  Courts 

0/ Business.     ^       .      .       ,  .       .    j.    ,.  j  ,        .    ., 

—  oi  criminal  jurisdiction,  and  as  regards  civil  causes 
and  matters,  such  only  as  would  have  been  within 
the  exclusive  cognizance  of  the  Court  of  Queen's 
Bench,  in  the  exercise  of  its  original  jurisdiction. 
This  latter  limitation,  if  taken  literally,  would 
appear  to  confine  it  to  actions  of  trespass  vi  et 
arrais. 
ComTnon  (215.)  To  the  Common  Pleas  Division,  the  assign- 

rieas  ^'  I'l  Till 

Division,  mcut  is  of  causes  and  matters  which  would  have  been 
within  the  exclusive  cognizance  of  the  Court  of 
Common  Pleas.  This  would  seem,  if  taken  liter- 
ally, to  be  limited,  as  regards  actions,  to  real  actions 
now  abolished.  It  preserves  to  the  Court  the 
former  jurisdiction  of  the  Common  Pleas,  under 
several  statutes,  such  as  the  Parliamentary  Elections 
Act,  1868,  31  and  32  Vic,  c.  125,  which  commits  to 
the  Court  itself (^^)  the  general  control  of  the  matter, 
though  it  be  specially  attached  for  trial  to  a  par- 
ticular Judge  on  the  rota.(v)  Special  cases  under 
section  ]  1  may  be  referred  to  \i.(%v) 

Also  certain  jurisdiction  under  the  Local  Govern- 
ment Act,  84  &  35  Vic,  c  109. 

Exchequer  (216.)  The  assignment  to  the  Exchequer  Division 
as  regards  civil  actions,  seems  to  be  confined  to  certain 
actions  against  debtors  to  the  Crown,  or  actions 
specially  limited  to  the  Court  of  Exchequer  by 
statute  where  a  public  body,  ex.  gr.,  the  Board  of 
Works,  could  be  sued  only  by  leave  of  the  Court  of 
Exchequer,  (a;)      Probably  such   leave   should  still 

Probate  be  sought  from  the  Exchequer  Division.  All  causes 
and  matters  within  the  exclusive  cognizance  of  the 

(m)  See  as  to  attendance  of  junior  Judge   of  the  Queen's  Bench 
Division  on  that  occasion,  s.  36. 

(v)  See  Macartney  v.  Corry,  Ir.  Rep.  7  C.  L.  242. 

(w)  See  Athlone  Election  Petition,  Ir.  Kepw  8  C.  L.  240. 

(ar)  See  Caldwell  v.  Board  of  Works,  1  Ir.  Jar.,  N.  S.  106,  E.\. 


ASSIGNMENT  TO  SINGLE  JUDGES.  175 

Court  of  Probate    or    the  Court  for  Matrimonial  mstrihution 
Causes,  are  assigned  to  the  Judge  of  the  Probate      — 
and  Matrimonial  Division,  and  all  matters  within 
the  exclusive  jurisdiction  of  the  Landed   Estates 
Court  are  assigned  to  the  Land  Judges. (2/) 

(217.)  Thus  the  Judicature  Act  assigns  to  the  Common 
Queen's  Bench,  Common  Pleas,  Exchequer,  and  Pro-  Divisions, 
bate  Divisions  all  the  jurisdiction  over  which  the  cor- 
relative courts  of  former  times  respectively  had  ex- 
clusive jurisdiction,  and  to  the  Land  Judges  of  the 
Chancery  Division  the  peculiar  jurisdiction  of  the 
Landed  Estates  Courts.  It  then  specially  assigns 
to  the  Chancery  Division  a  selection  out  of  the 
matters  over  which  the  Court  of  Chancery  had  ex- 
clusive jurisdiction,  leaving  a  portion  of  the  juris- 
diction previously  peculiar  to  Courts  of  Equity 
and  all  matters  in  which  there  had  been  concurrent 
jurisdiction  at  law  and  in  equity,  unenumerated,  and 
in  respect  of  these  a  plaintiff  is  as  it  seems  em- 
powered to  select  his  own  division. 

Common  Lawactions,  so  far  as  they  were  not  within 
the  exclusive  cognizance  of  the  Courts  of  Queen's 
Bench  and  Common  Pleas  and  Exchequer  are  un- 
assigned.(2;) 

(218.)  All  business  of  a  character  which  hereto-  A=sifrnment. 
fore  was  accustomed  to  be  disposed  of  by  a  Judge  judge." 
only,  as  in  the  Court  of  Chancery,  and  the  Probate 
and  Matrimonial  Courts,  and  in  the  Landed  Estates 
Court,  will  still  be  transacted  and  disposed  of  in 
the  first  instance  by  a  single  judge,  and  is  assigned 
to  the  same  judge,  to  whose  court  it  was  attached. 

{]/)  J.  A.  1877,  s.  47.  (s)   Vide  ante  (18),  p.  40. 


[     17G    ] 

CHAPTER  XX. 

Option  of  Division  and  Transfers. 

219.  Option  as  to  Division,  how  far,  p.  176. 

220.  Marliing  name  of  Division,  176. 

221.  Assignment  to  wrong  Division,  176. 

222.  Power  of  transfer  and  retainer,  177. 

223.  Grounds  of  transfer  generally,  177. 

224.  To  Chancery  Division,  177. 

225.  To  Common  Law  Division,  180. 

226.  To  Probate  Division,  181. 

227.  Pendenc}'  of  a  suit  relating  to  same  subject,  181. 

228.  The  order  of  transfer,  182. 


Option  as  (219.)  Subject  to  the  provisions  made  for  the 
^dlvisi'on^  °^  assignment  of  certain  business  to  particular  divi- 
sions, mentioned  in  the  previous  Chapter  XIX,  and 
to  the  power  of  transfer  from  one  division  to  another, 
by  order  of  court,  it  is  optional  with  a  suitor  com- 
mencing any  cause  or  matter  to  assign  it  to  such 
one  of  the  divisions  of  the  High  Court  of  Justice 
as  he  may  think  fit;  but  after  the  first  assign- 
ment all  interlocutory  and  other  steps  and  pro- 
ceedings in  the  cause  or  matter  must  be  taken  in 
the  division  to  which  the  cause  or  matter  is  for  the 
time  being  attached.(ct) 
Marking  (220.)  Evciy  pcrsou  commencing  a  suit  or  matter 

^V'i!,*!c^n  in  the  High  Court  of  Justice  must  assign  it  to  some 
particular  division  of  the  High  Court  by  marking 
the  document  by  which  the  proceeding  is  com- 
menced with  the  name  of  the  division  and  giving 
notice  of  it  to  the  proper  officer  of  the  court.  (6) 
Cause  (221.)  If  the  cause  or  matter  is  assigned  to  a  wrong 

assigned  to  (Jiyision  of  the  Court,  i.e.  to  one  which,  according  to 

wrong  '  '  => 

division,  the  provisions  of  the  Act  or  the  rules,  it  ought  not  to 
be  assigned,  the  Court,  or  any  Judge  of  the  division  to 
which  it  is  so  assigned,  upon  being  informed  thereof, 
may,  on  a  summary  application  at  any  stage  of  the 

(«)  J.  A.  1877,  s.  37,  subs.  (1 ).  (6)  lb.,  s.  37. 


POWER  TO  TRANSFER — GROUNDS.  177 

cause  or  matter,  direct  it  to  be  transferred  to  the  Option  of 
proper  division  to  which   it  ought   to  have  been  anT^^^^ 
assigned,  or  he  may,  if  he  thinks  it  expedient  so  to  -''""^ff"*" 
do,  retain  it  in  the  division  in  which  it  has  been 
commenced;  and  all   steps  and  proceedings  taken 
and    orders   made    in   the  cause  or  matter  before 
such   transfer  will   be  valid   and   effectual   to   all 
intents  and  purposes  as  if  taken  and  made  in  the 
proper  division,  (c) 

(222.)  Any  cause  or  matter  may,  at  any  time  or  Power  to 
at  any  stage  of  it,  and  either  with  or  without  appli-  retain, 
cation  from  any  of  the  parties  thereto,  by  an  order 
in  that  behalf,  be  transferred  from  one  division  or 
Judge  of  the  High  Court  of  Justice  to  another  divi- 
sion or  judge,  or  by  a  like  order  may  be  retained  in 
the  division  in  which  it  has  been  commenced, 
although  it  be  not  the  proper  division  to  which  it 
ought  in  the  first  instance  to  have  been  assigned. (tZ) 

(223.)  The  mere  consent  of  the  parties  has  been  Ground 
deemed  not  a  sufiicient  ground  for  transfer  of  a  cause  ^^^^^^  ^^ 
from  one  division  to  another,  and  from  a  Common 
Law,  to  the  Chancery  Division. (e)     But  the  order 
may  be  had  on  showing  any  sufiicient  grounds  of 
convenience  or  expediency. 

(224.)  Certain  actions,  though  originally  proper  Ground  for 

[>  r^  X  -r\'     •    •  •  11         transfer  to 

lor  a  Common  Law  Division,  may  in  progress  develop  chancery 
grounds  for  transfer  to  the  Chancery  Division,  as  '^'®*°"- 
for  example,  where  the  writ  was  issued  in  the 
Exchequer  Division  to  recover  possession  of  lands, 
and  the  defence  was  by  way  of  counter-claim  for 
specific  performance  of  an  agreement  for  a  lease,  and 
there  was  no  other  question  to  be  tried  but  that  of  the 
existence  of  the  agreement  for  which  the  defendant 
had  made  out  b,  prima  facie  case,  such  that  the  Court 
of  Chancery  would  have  granted  an  injunction  to 

(c)  J.  A.,  1877,  s.  38.  (d)  lb. 

(e)  Anon.  W.  N.  1870,  55,  Archibald,  J. 

i3 


178  GROUNDS  FOR  TRANSFER  TO  CHANCERY. 

/ 

Opfinnof  restrain  the  action,  it  was  transferred  to  the 
fl,!r""'  Chancery  Division,  in  which  the  question  could  bo 
'jwn^s.  ^^^^  conveniently  disposed  of.(/  )  So  where  the 
action  was  to  charge  the  separate  estate  of  a  married 
woman,  it  was  transferred  from  the  Queen's  Bench 
to  the  Chancery  Division,  reserving  the  costs  in  the 
Q.  B.  D.  to  be  disposed  of  there. ((/)  So  where  the  real 
dispute  though  arising  in  a  common  law  action  for 
goods  sold,  resolves  itself  into  a  question  involving 
not  merely  equitable  principles  which  the  Common 
Law  Judges  are  fully  competent  to  apply,  but 
matters  which  can  hardly  be  dealt  with  satisfactorily 
in  Courts  of  Law,  as  demanding  something  of  equit- 
able administration,  requiring  the  official  machinery 
of  the  Chancery  Division  in  taking  of  complicated 
accounts,  the  specific  performance  of  contracts  and 
inquiries  into  title,  or  the  setting  aside  of  written  in- 
struments on  grounds  of  equitable  fraud,  it  will  pro- 
bably be  found  more  convenient  to  transfer  the  action 
to  the  Chancery  Division,  at  least  until  the  official 
staff  of  the  Common  Law  Divisions  shall  have  been 
assimilated. (A.)  Thus,  where  to  an  action  on  a  deed 
the  sole  question  left  for  decision  being  whether 
the  deed  should  be  set  aside  on  the  ground  of  undue 
influence,  the  action  was  transferred  to  the  Chancery 
Division.(i)  In  another  action,  of  ejectment,  the 
defence  being  a  counter-claim  for  specific  perfor- 
mance of  an  agreement  for  a  lease,  and  that  being 
the  real  question  to  be  tried,  the  action  was  trans- 
ferred.(;')  And  where  an  action  was  brought  in  the 
Exchequer  Division  by  a  purchaser  to  recover  back 

(/)  HiUman  v.  Mayhew,  L.  R.  1  Ex.  D.  132,  24  W.  R.  435. 

O7)  Anon.  W.  R.  187G,  22,  20,  Sol.  J.  242,  Lindley,  J. 

(h)  See  Padwick  v.  Scott,  W.  N.  187G,  74,  20  Sol.  J.  299,  320, 
Archibald,  J. 

(i)  lb. 

(j)  Hillman  v.  Mayhew,  L.  K.  1  Exch.  D.  132,  W.  N.  1S7G,  98, 
24  W.  R.  435. 


GROUNDS  FOR  TRANSFER  TO  CHANCERY  DIVISION.  179 

his  deposit  on  the  ground  of  delay,  in  completing  Optimo/ 

^  °  "■  Division 

the  purchase,  and  the  vendor  tiled  a  counter-claim  and 
for  specific  performance  of  the  same  contract,  the  — 
Court  (sustained  by  the  Appeal  Court)  thinking  it 
raised  a  bond  fide  dispute  as  to  title,  and  that  if  the 
vendor  was  right,  the  Chancery  Division  alone,  by 
its  more  perfect  machinery,  could  give  the  proper 
remedy,  ordered  the  action  to  be  transferred  to  that 
division.(^)  But  where  the  equitable  impeachment 
raised  by  the  counter-claim  was  admitted  by  being 
demurred  to  by  the  plaintiff,  and  on  the  demurrer  the 
Court  was  clearly  of  opinion  that  it  sufficiently 
established  the  defendant's  right  on  the  facts  stated 
and  admitted,  to  have  the  deed  set  aside  or  reformed, 
the  Common  Law  Division  proceeded  on  the 
assumption  that  the  deed  was  actually  reformed, 
and  thought  it  unnecessary  to  transfer  the  action  to 
the  Chancery  Division. (^)  Where  the  relief  prayed 
for  falls  short  of  the  precise  subject  reserved  for  the 
Chancery  Division,  a  transfer  has  been  refused,  as 
an  action  to  recover  in  the  alternative,  payments  of 
an  annuity  in  arrear,  or  a  gross  sum  in  lieu  of  it,  or 
the  investment  of  the  latter  sum  in  the  name  of 
trustees  for  the  benefit  of  the  plaintiff  and  her 
children,  seeking  the  creation  of  a  trust  and  not  the 
execution  of  a  trust,  (in) 

\\Tiere  the  action  was  for  an  occupation  rent, 
brought  in  the  Queen's  Bench  Division  by  a  vendor 
against  his  purchaser,  it  was  contended  the  claim 
should  be  made  in  the  Chancery  Division,  but  the 
Court  did  not  yield  to  the  contention.  (71) 

An  action  on  a  bill  of  exchange  may,  under  certain. 

{k)  HoUoway  v.  York,  25  W.  R.  403,  21  Sol.  Jour.  360,  A.  C. 

(I)  Mostyn  v.  East  Mostyn  Coal  and  Iron  Company,  L.  R.  1  C.  P.  D. 
145,  24  W.  R.  401. 

(to)  Anon.  20  Sol.  Jour.  342,  Denman,  J. 

(n)  Vide  Metropolitan  Railway  Company  v.  Defries,  L.  R.  2  Q.  B. 
D.  378  A.  C. 


GROUNDS  OF  TRANSFER  FROM  CHANCERY  DIVISION. 

circumstances,  be  properly  brought  in  the  Chancery 
Division,  for  example,  where  the  plaintiff  seeks  a  de- 
claration that  the  defendants  were  partners  in  a 
certain  firm,  and  liable  for  its  debts,  and  for  all  bills 
drawn  by  or  in  the  name  of  the  firm  and  praying  the 
usual  accounts. (o) 
From  (225.)  Where  in  a  Chancery  action  for  specific  per- 

commo^  °  formance  of  an  agreement  entered  into  by  an  agent, 
jjirision.  the  principal  question  raised  was  the  authority  of  the 
agent,  and  the  plaintiflf  might  probably  have  a  right 
to  select  his  mode  of  trial  by  jury,  and  to  have  his 
claim  for  damages  brought  before  it,  yet  it  was  so 
peculiarly  within  the  jurisdiction  of  the  Chancery 
Courts,  that  the  judge  declined  to  transfer  it  to  a 
Common  Law  Division,  stating  that  the  claim  for 
damages  could  be  as  well  tried  in  Chancery  as  before 

a  jury.(iJ) 

Where  the  claim  is  of  a  nature  common  to  both 
Chancery  and  Common  Law,  for  example,  to  make 
a  defendant  answerable  for  untrue  representations 
made  to  the  plaintiff",  the  Chancery  Division  w^ill 
probably  consider  that  the  right  of  choice  given  to 
the  plaintiff"  ought  not  to  be  interfered  with,  though 
the  relief  sought  is  by  way  of  damages.  (^) 

Where  a  suit  had  been  instituted  in  the  Court  of 
Chancery  to  restrain  an  action  at  law,  and  an  in- 
junction was  granted  to  the  hearing,  and  after  the 
passing  of  the  Judicature  Act,  it  being  then  un- 
lawful to  continue  or  perpetuate  the  injunction,  the 
Chancery  Division  transferred  the  suit  to  the 
Common  Law  Division  in  which  the  action  was 
pending,  (r) 


(o)  See  Pooley  v.  Driver,  L.  R.  5  Ch.  D.  458,  M.  R. 
(p)  Pilley  V.  Baylis,  L.  R.  5  Ch.  D.  241  V.  C.  M. 
{q)  See  Cannot  v.  Morgan,  L.  R.  1  Ch.  D.  1,  24  W.  R.  91,  whore 
this  view  was  taken. 

(r)  Edwards  v.  Noble,  W.  N.  1876,  81,  24  W.  R.  390,  V.  C.  B.^ 


TRANSFER  TO  PROBATE  OR  ADMIRALTY  DIVISION.  181 

(226.)  An  action   being  brought  for  a  purpose  option  of 
ancillary  to  a  suit  pending  in  another  division,  which  and 
that  division  may  itself  as  properly  entertain,  the  ^'■«^^- 
second  action  will  probably  be  transferred,  ex.  gr.,  Ji^Jfo^.^*^ 
an  action  for  a  receiver  or  administrator,  or  for  an 
injunction  against  an  administrator  meddling  with 
property  pending,  a  suit  for  probate  has  been  trans- 
ferred to  the  Probate  Division,  (s) 

On  similar  grounds  in  England,  in  actions  for  Admiralty 
damages  occasioned  by  collision  between  two 
vessels,  where  one  is  at  anchor,  and  the  right  turns 
simply  on  a  question  of  negligence,  the  Court  has 
refused  to  transfer  the  action  from  a  Common  Law 
Division  to  the  Admiralty  Division,  although  pro- 
bably if  it  had  involved  a  question  of  seamanship, 
especially  on  the  high  seas,  it  would  have  done  so.(^) 

(227.)  If  there   be   a   suit   already  pending   in  suit 
another    division    relating    to   the   same    subject- r^iatinf  to 
■  matter,  and  the  parties  are  in  privity  with  each  'Xject. 
other,  this  may- form  a  ground  for  a  transfer  of  the 
action,  ex.  gr.,   an   action   for   possession   of  land 
brought    by    a    mortgagee    in    a    Common    Law 
Division,   has   been   transferred   to   the  Chancery 
Division,  in  which  another  action  was  pending,  by 
the  mortgagor  for  redemption  of  the  same  land.(i/.) 

An  action  brought  in  the  Exchequer  Division 
for  breach  of  an  acrreement,  and  for  fraudulent  mis- 
representation  in  connexion  with  it,  was  transferred 
to  the  Chancery  Division,  in  which  an  action  for 
specific  performance  of  the  same  agreement  was 
pending,  although  some  of  the  matters  might  be 
more  fitting  for  a  jury. (y) 

(s)  Barr  v.  Barr,  20  Sol.  J.  272,  Prob. 

(«)  See  General  Steam  Navigation  Company  v.  London  and  Edinburgh 
Shipping  Company,  W.  N.,  1876,  56,  20  Sol.  J.,  282,  Archibald,  J. 

(a)  Young  v.  King,  20  Sol.  J.,  218,  Lindley,  J. 

(v)  Holmes  v.  Harvey,  25  W.  R.,  60;  W.  N.,  1876,  276,  21  Sol. 
Jour.,  68. 


182 


p::xdency  of  suit  in  another  division. 


Option  of 
Dimsion 
and 
Transfers. 


The  order 
of  transfer. 


However  the  pendency  of  another  suit  in  a 
different  division  commenced  by  the  defendant 
against  a  third  person,  although  growing  out  of  the 
same  transaction,  might  not  be  considered  a  suffi- 
cient reason  for  transferring  the  plaintiffs  action, 
as  where  the  plaintiff,  an  auctioneer,  sued  a  vendor 
for  money  paid  to  him,  who  again  had  instituted  a 
suit  against  the  purchaser  for  specific  performance 
of  the  contract  of  sale  in  the  Chancery  Division, 
the  auctioneer's  claim  not  being  mixed  up  with  the 
question  of  title  involved  in  the  equity  suit  a  transfer 
was  refused,  (w) 

An  action  being  brought  in  one  division,  appa- 
rently in  violation  of  the  order  of  another  division, 
is  a  ground  for  transfer  to  the  latter,  (a-) 

(228.)  The  order  for  transfer  may  be  made  by 
any  Judge  of  the  High  Court  sitting  at  Chambers, 
and  must  not  necessarily  be  made  by  a  Judge  of 
the  division  in  which  the  action  is  attached.(2/) 

By  the  rules  no  transfer  can  be  made  from  or  to 
any  division  without  the  consent  of  the  President 
of  the  division.(s) 

Such  an  order  has  been  made  ex  jx-trte,  leaving 
it  to  the  other  parties  to  have  it  discharged  if 
desired,  (a) 

The  transfer  of  an  action  for  trial  in  another 
division  was  not  considered  equivalent  to  a  transfer 
of  the  cause  absolutely  so  as  to  warrant  an  appli- 
cation for  a  new  trial  being  made  in  the  latter 
division.  (6) 


(w)  Anon.,  W.  N.,  187(i,  55. 

(jt)  Johnson  v.  Moffat,  W.  N.,  1870,  21 ;  20  Sol.  J.,  2-tO,  Lindley,  J. 

(j/)  Hillman  v.  Mayhew,  uhi  supra. 

(z)  Ord.  51,  English.     See  infra  Part  VI.  for  Irish. 

(a)  Field  V.  Field,  W.  N.,  1877,98  V.  C.  M. 

lb)  Anon.,  20  Sol.  J.,  292. 


PAET  TV. 


CONCURRENT  ADMINISTRATION   OF   LAW 
AND   EQUITY. 

(Section  27.) 


Chapter   XXI. — Equitable  Claims  and  Replications,  SiiLs.  (I ). 

XXII. — Equitable  Defences  to  Equitable  Claims, 
Subs.  (2). 

XXIII. — Cross-Claims  against  Plaintiff,  Subs.  (3). 

XXIV. — Cross-Claims  against  Co-defendant  or  ththd 
PERSON,  Subs.  (3). 

XXV. — Notice  to  bind  third  persons,  Subs.  (3). 

XXVI. — Incidental  Equities  recognised,  Subs.  (4). 

XXVI  [. — Equitable  Defence  in  lieu  of  Injunction, 

Subs.  (5). 

XXVIII. — Stay  of  Proceedings,  Subs.  (5). 
XXIX. — Legal  Rights  recognised,  Subs.  (6). 
XXX.—  Plenary  Relief,  Subs.  (7). 


[     184     ] 

CHAPTER  XXI. 
Equitable  Claims  and  Replications. 

Section  27,  Subsection  (1). 

229.  Concurrent  Administration,  what  it  means,  p.  ISi. 

230.  Equitable  Claims  enforced,  184. 

231.  Kijuitable  Replications,  186. 


Concurrent  (229.)  The  Judicature  Act  (a)  enacts  that  in 
uon'o/Law  eveiy  civil  cause  or  matter,  commenced  in  the  High 
and  Equity.  Qq^j.^  of  Justice,  Law  and  Equity  shall  be  adminis- 
tered both  in  the  High  Court  of  Justice  and  in  the 
Court  of  Appeal,  respectively,  according  to  certain 
rules  set  out  in  sevensubsectionsof  section  27.  These 
rules  are  manifestly  not  applicable  to  all  actions  and 
matters,  as  the  marginal  note,  "  Law  and  Equity  to 
be  concurrently  administered,"  would  seem  to  indi- 
cate, but  are  confined  to  those  cases  in  which  the 
combined  or  conflicting  action  of  law  and  equity  can 
be  brought  to  bear  on  the  same  subject-matter. (6) 
Efiuitabie  (230.)  The  first  rule  forming  subsection  (1),  of 
enforced,  scction  27,  is  as  follows: — "In  any  cause  or  matter 
Subs.  u).  commenced  in  the  High  Court  of  Justice,  if  any 
plaintiff"  or  petitioner  claims  to  be  entitled  to  any 
equitable  estate  or  right,  or  to  relief,  upon  any 
equitable  ground,  against  any  deed,  instrument,  or 
contract,  or  against  any  right,  title,  or  claim  whatso- 
ever, asserted  by  any  defendant  or  respondent  in  the 
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  {i.e.  the 
High  Court  of  Justice  and  the  Court  of  Aj)peal) 
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  Chan- 
cery, in  a  suit  or  proceeding  for  the  same  or  the  like 

(rt)  J.  a.,  1877,  s.  27;  J.  A.,  1873,  s.  24.     (6)  See  ante  (15),  p.  33.. 


EQUITABLE  CLAIMS  ENFORCED.  185 

purpose,  properly  instituted  before  the  passing  of  concurrent^ 
this  (Judicature)  Act.'Yc)    The  exact  scope  intended  uon  of  Law 

...  ,  1  Ti_  and  Equity. 

by  this  provision  is  not  very  clear,     it  seems  unneces-      

sary,  as  regards  the  several  classes  of  action  specially 
assigned  to  the  Chancery  Division,  and  although 
every  other  division  of  the  High  Court  is  competent 
to  entertain,  and  give  relief  in  respect  of,  any  claim 
which  a  plaintiff  or  petitioner  may  think  proper  to 
make,  as  being  entitled  to  any  equitable  estate  or 
right,  or  to  be  relieved  upon  some  equitable  ground, 
against  any  deed,  or  contract,  or  right,  or  title,  which 
may  be  asserted  by  the  person  whom  he  brings  into 
court  as  a  defendant,  it  can  hardly  have  been  in- 
tended to  propound,  neither  more  nor  less,  that  "  the 
plaintiff  may  assert  an  equitable  claim  in  any  court," 
or  "  that  the  plaintiff  may  obtain  an  equitable 
remedy  in  any  court,"  (cZ)  mere  truisms  in  form  of 
expression  and  theory,  inasmuch  as  every  division 
of  the  High  Court,  is  a  Court  of  Equity,  but  fallacies 
in  practical  reality,  as  any  plaintiff  would  find  to  his 
cost,  who  sought  by  an  original  claim,  in  a  Common 
Law  Division,  or  in  the  Probate  Division,  to  be  re- 
lieved against  a  deed  on  the  gi'ound  of  fraud.  The 
plaintiff  may  obtain,  in  the  High  Court  of  Justice, 
every  form  and  kind  of  equitable  relief  which  he 
might  have  had  in  a  Court  of  Equity,  in  a  suit  pro- 
perly instituted,  but  it  would  seem  not  to  follow 
from  this,  that  he  can  have  the  like  relief  in  any  or 
every  division  of  the  High  Court,  unless  in  a  pro- 
ceeding properly  instituted,  according  to  the  Statu- 
tory and  Curial  Rules  regulating  its  procedure,  and 
in  this  sense  and  with  this  limitation,  it  seems  little 
more  than  an  emphatic  repetition  of  so  much  of 
section  21  as  enacts  that  the  High  Court  of  Justice 

(c)  J.  A.,  1877,  s.  27,  subs.  1 ;  J.  A.,  1873,  s.  24. 
{d)  See  Wilson's  Judicature  Acts,  p.  58,  where  tlie  corresponding 
provision  in  England  is  so  expounded. 


180  EQUITABLE  REPLICATIONS. 

Concurrent  shall  have  vestetl  in  it  all  the  jurisdiction  which 
thmo/Law  was  vGsted  in  or  capable  of  being  exercised  by  the 
aw  ^ity.  jjj-'gi^  Court  of  Chancery,  as  a  Court  of  Equity. 
jSiica-*'         (-31-)  It  may  also  be  intended  to  convey,  that  a 
tions.  plaintiff  or  petitioner  shall  have  the  full  benefit,  by 

way  of  equitable  replication,  of  any  relief  against  a 
deed  or  title  asserted  by  a  defendant  in  Ids  defence. 
Under  the  C.  L.  Pro.  Act  (Ireland),  1856,  sec.  87, 
a  plaintiff  could  (but  only  by  the  permission  of  the 
Court  or  a  Judge)  reply  in  answer  to  the  pleading  of 
the  opposite  party,  facts  which  avoided  the  pleading 
on  equitable  grounds.  The  same  relief  maj^  now, 
it  would  seem,  be  had  under  the  terms  of  this  sub- 
section (1).  Thus,  if  a  defendant  relies  on  a  deed  of 
release,  the  plaintiff  may,  by  replication,  insist  that 
he,  the  plaintiff,  was  induced  to  execute  the  deed 
by  the  fraudulent  representation  of  the  defendant, 
(e)  or  if  the  defendant  relies  on  an  equitable  defence, 
the  plaintiff  may  show,  by  his  replication,  that  he 
has  an  earlier  and  a  better  equity, (/)  or  that  he 
was  a  purchaser  for  value,  without  notice  of  the 
defendant's  title.  (^)  But  a  plaintiff  cannot,  in  his 
replication,  shift  his  claim  from  a  legal  ground  to 
an  equitable  one,  as  for  example,  where  by  his  action 
he  claimed  a  personal  debt,  founded  on  a  guarantee 
given  by  a  married  woman,  to  which  she  pleaded 
her  coverture,  the  plaintiff  was  not  allowed  to  shift 
his  ground  in  his  replication,  and  insist  upon  relief 
upon  equitable  grounds,  and  to  attach  the  debt  on 
her  separate  estate ;  but  in  a  case  of  this  nature 
the  writ  would  probably  be  amended  in  the  indorse- 
ment of  claim. (/i) 

(e)  Ilirschfekl  v.  London  and  Brighton  Railway  Company,  L.  R.,  2 
Q.  B.  D.  1. 

{f)  See  Sloper  v.  Cottrell,  G  El.  &  Bl.,  407. 

in)  See  Ferguson's  Com.  Law  Pro.  Acts,  2iid  Edition,  p.  381. 

(Ji)  Anon.  20  Sol.  J.,  242,  Lindley  J. 


[    1S7    ] 

CHAPTER  XXII. 
Equitable  Defences  to  Equitable  Claims. 

Section  27,  Subsection  (2). 

232.  Equitable  Defences  to  Equitable  Claims,  p.  187. 

233.  Limited  to  Equitable  Claims,  187. 
2'di.  Cross-Claim  dispensed  with,  189. 


(232.)  Section  27,  subsection  (2)  enacts  as   fol-  ^'?«?<«Wc 

^  ■'  '  ^    ^  Defences  lo 

lows  : Equitable 

.  •11  Claims. 

"  If  any  defendant  claims  to  be  entitJed  to  any  — 
equitable  estate  or  riglit,  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  the  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  (i.e.,  the  High 
Court  and  Court  of  Appeal)  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  peti- 
tioner, as  the  Court  of  Chancery  ought  to  have 
o'iven,  if  the  same  or  the  like  matters  had  been 
relied  on  by  way  of  defence  in  any  suit  or  i^roceed- 
ing  instituted  m  that  Court  for  the  same  or  the 
like  purpose  before  the  passing  of  this  (Judicature) 
Act."(a) 

(233.)  The  obiect  of  the  provision  in  this  sub-  Limited  to 

^  '  **  '  IT  1      equitable 

section  (2)  would  seem,  from  its  concludmg  words,  claims, 
to  be  confined  to  declaring  the  mode  in  which  the 
High  Court  is  to  exercise  its  jurisdiction  as  to  de- 
fences to  equitable  claims  asserted  by  any  plaintiff, 

(a)  J.  A.,  1877,  s.  27,  subs,  (2)  ;  J.  A.,  1873,  s.  24. 


CROSS-CLAIMS  DISPENSED  WITH. 

and  that  the  defendant  is  to  be  allowed  the  same 
benefit  as  he  might  have  had  in  the  Court  of 
Chancery  if  the  same  claim  had  been  made  in  any 
suit  or  proceeding  instituted  in  the  Court  of  Chan- 
cery." Equitable  defences  to  legal  claims  would 
seem  to  come  more  properly  within  the  provisions 
of  subsection  (5). 

In  a  recent  case,  (6)  an  action  being  brought  by 
owners  of  a  ship  for  negligence  in  performing  a 
contract  of  towage,  alleging  that  the  defendant's 
servant  and  agent,  the  master  of  the  tug-vessel,  had 
refused  to  obey  the  orders  of  the  pilot,  and  other- 
wise neglected  to  exercise  due  and  proper  care  in 
managing  the  tug,  whereby  the  plaintiffs'  vessel  in- 
curred damage,  a  defence  was  sustained  on  demurrer, 
not  denying  that  defendants' agents  and  servants  had 
not  used  due  diligence,  but  claiming  the  benefit  of 
the  provision  of  the  Merchant  Shipping  Act, 
1862,  s.  54,  to  limit  the  amount  of  the  defendant's 
liability  to  £8  per  ton  on  the  tonnage  of  the  vessel, 
a  relief  which,  before  the  Judicature  Act,  might  be 
enforced  in  equity  by  injunction. (c)  It  was  assumed 
that  this  class  of  defence  was  opencdby  subsection  (2) 
of  the  J.  A,  1873,  sec.  24  ;  and  that  the  proper,  and, 
in  fact,  only  possible  way  of  claiming  such  a  de- 
fence, was  to  plead  it  in  the  statement  of  defence ; 
but,  semble,  does  not  this  defence  more  properly 
belong  to  subsection  (5)  infra,  as  an  equitable 
defence  to  a  legal  claim  ? 

(234.)  This  sul)section  (2),  as  interpreted  by  Yice- 
Chancellor  Bacon,  would  seem  to  disi)ensc  with  the 
necessity  of  an  independent  counter-claim  in  the 
nature  of  a  cross-bill. 


(6)  Wahlbcrg  v.  Young,  24  W.  K.,  847,  C.  P.  D.,  per  Coleridge, 
L.  C.  J.  at  pp.  847-8. 

(c)  See  London  and  South-western  Paihvuy  Company  v.  James, 
L.  R.  8Ch.  241,  A.  C. 


CROSS-CLATMS  DISPENSED  WITH.  189 

Thus  in  a  suit  ('/)  by  a  mortgagee  in  posses-  F.quUaUe 
sion  seeking  to  foreclose  the  mortgage,  and  pray-  Equitable 
ing  for  an  account  of  what  was  due  on  foot  of  the  """"" 
mortgage  deeds,  but  insisting  on  certain  stipulations 
in  the  mortgage  deed  in  favour  of  the  mortgagee, 
purporting  to  entitle  him  to  charge  commission  and 
discount,  and  for  costs  and  charges  as  a  solicitor, 
and  binding  the  defendant  (the  mortgagor)  to 
certain  settled  accounts.  The  defendant,  by  his 
answer,  alleged  that  the  accounts  were  signed  with- 
out examination,  and  under  pressure,  and  contained 
errors — a  defence  which,  probably,  under  the  former 
system,  should  have  been  made  by  cross-bill  (e)  and 
which  it  was  insisted  should  still  be  raised  by  cross- 
bill, or  counter-claim  ;  yet,  the  Vice-Chancellor 
(Bacon)  said:  "Nothing  can  be  more  comprehensive, 
universal,  and  plain  than  the  Act,  section  24,  (/) 
subs.  (2),  and  so  long  as  such  a  defence  is  raised  upon 
the  record,  it  was  the  duty  of  the  Court  to  deal  with 
it.  just  as  much  as  if  a  cross-bill  had  been  filed,  and 
the  defendants  were  entitled  to  have  the  accounts 
opened  without  filing  a  counter-claim." 

(d)  Eyre  v.  Hughes,  L.  E.  2  Ch.  D.  148 ;  24  W.  E.,  597 ;  W.  N., 
1876,80,  V.  C.  B. 

(e)  SeeEichards  v.  Bayly,  1  Jo.  &  Lat.  120;  Keyland  v.  Corporation 
of  Belfast,  2  Ir.  Jur.  N.  S.  180,  M.  E.  ;  sed  contra,  S.  C  per  L.  C. 
p.  189 ;  M'Namara  v.  Arthur,  2  Ball  &  B.  349. 

(y)  Corresponding  to  our  Section  27. 


[     190     ] 

CHAPTER  XXIII. 

Cross  Relief  by  way  of  Set-off  and  Couxter- 

CLA.IM. 


235. 
236. 
237. 
238. 
239. 
240. 
241. 
242. 
243. 
244. 


Section  27,  Subsection  (3). 

Relief  by  Set-off  and  Counter-claim,  p.  190. 

Set-off  by  Common  Law  and  Statute,   190. 

Set-off  ill  Equity,  191. 

Debts  in  same  right,  191. 

Set-off  in  Bankruptcy,  192. 

Under  the  Judicature  Act,  192. 

One  trial  and  judgment,  195. 

Examples  of  Cross-Claims,  195. 

]\Iust  not  be  incongruous,  19G. 

How  far  confined  to  same  transaction,  198. 


(235.)  Subsection  (3)  enables  a  defendant  to  assert 
by  way  of  counter-claim  against  the  plaintiff,  any 
claim,  legal  or  equitable,  which  he  might  have 
raised  by  a  cross-suit  or  independent  action,  either 
at  law  or  in  equity.     It  enacts  as  follows : — 

Subsection  (3) — "The  said  Courts  {i.e.,  High 
Court  and  Court  of  Apj)eal)  respectively,  and  every 
judge  thereof,  shall  also  have  power  to  grant  to  any 
defendant,  in  respect  of  any  equitable  estate  or 
right  or  other  matter  of  equity ;  and  also  in  respect 
of  any  legal  estate,  right  oi-  title,  claimed  or  asserted 
by  him,  all  such  relief  against  any  plaintiff,  or 
petitioner,  as  such  defendant  shall  have  properly 
claimed  by  his  pleading,  and  as  the  said  Courts 
respectively,  or  any  judge  thereof,  might  have 
granted,  in  any  suit  instituted  for  that  purpose,  by 
the  same  defendant  against  the  same  plaintiff  or 
petitioner,  &c.,  &:c."(«') 

The  rest  of  the  subsection (6)  relates  to  claims 
against  third  persons(/>) 

(23G)  Tlie  principle  of  set-off  by  way  of  allow- 
ance of  credits  against  debits  in  a  connected  account. 


(„),!.  A.,  1S73,    s.  24;  J.  A. 
{b)  Sec  in/ru,  chapter  xxiv. 


1877,  s.  27,  subs.  3,  part  of. 


SET-OFF  IN  EQUITY — EELIEF  IX  SAME  EIGHT.  191 

and  arisinof  in  the  same  transaction  was  admitted  at  Scf-offnmi 

-T  n  •       -r-        -i  Coiinter- 

Common  Law  as  well  as  m  Jiquity.  claim. 

The  statutes  of  set-off  (consolidated  by  the  Com- 
mon  Law  Procedure  Act,  1853(c)  made  mutual  debts 
of  a  liquidated  nature,  and  arising  in  the  same  right, 
and  whether  in  the  same  or  in  different  transac- 
tions capable  of  being  relied  on  by  way  of  set-off, 
provided  the  defendant's  claim  was  of  equal  or 
greater  amount  than  that  of  the  plaintiff  (cZ) 

(237.)  The  mere  existence  of  cross  demands  Set-off  in 
which,  had  they  been  both  legal  demands,  might  *^*^"'  ^ " 
have  been  the  subject  of  set-off  at  law,  was  not 
sufficient  to  entitle  either  party  to  come  into  equity 
and  ask  for  its  interposition  by  way  of  set-off ;  but 
the  jurisdiction  of  Equity  must  have  been  first 
attached  on  some  other  ground  independently  of  the 
question  of  set-off.  (e)  Thus  the  assignee  of  a  legal 
chose  in  action  could  not,  by  coming  into  a  Court 
of  Equity,  get  the  benefit  of  a  set-off  which  was  not 
available  to  him  atlaw.(/) 

(238)  Debts  due  in  different  rights  could  not  be  Debi<ia 
set-off  either  at  common  law  or  under  the  statutes.  ^^^^  "^ 

Equity,  following  the  analogy  of  the  Eoman  Law, 
likewise  did  not  permit  demands  existing  in  diffe- 
rent rights  to  be  set-oflf  one  against  the  other, 
except  under  special  circumstances,  from  which  an 
agreement  express  or  implied  could  be  raised  be- 
tween the  parties,  making  it  inequitable  for  the 
plaintiff"  to  enforce  his  demand  without  giving 
credit  for  the  other. ((/) 

Thus  it  was  refused  in  Equit}'  where  the  plain- 
Co)  16  &  17  Vic,  c.  113,  s.  40. 

(d)  See  Ferg,  C.  L.  Pro.  Act.s,  2  Edn.  p.  61. 

(e)  Clarke  v.  Cost,  2  Cr.  &  Ph.  15-1 ;  Rawson  v.  Samuel,  Cr.  &  Ph.  178. 
If)  Middleton  v.  Pollock,  L.  E.,  20  Eq.  at  r-  36,  per  M.  R. 

(g)  Eawson  v.  Samuel,  ubi  supra,  j^er  Lord  Cottenham,  see  Freeman 
V.  Lomax,  9  Hare, /)«•  V.  C.  Turner  at  p.  IH;  Middleton  v.  PoUock, 
L.  R.,  20  Eq.  29  M.  R. 


TD2 


SET-OFF  IN  BANKRUPTCY — UNDER  J.  ACT. 


s<if-njf  and   tiff  s  claim  was  in  autre  droit,  as  executor,  and  the 

Counter-  rv  1  '  c  • 

claim.  set-ofi  sought  was  m  respect  of  a  private  debt  due 
from  the  executor  to  the  defendant,  the  allowance 
of  which  might  alter  the  amount  or  distribution  of 
the  assets  of  the  deceased  party ;  but  in  the  con- 
verse case  where  the  plaintiff  sued  for  his  share  of 
the  residue  of  his  father's  estate  in  the  hairas  of  the 
defendant,  as  administrator,  the  defendant  was 
allowed  to  set  off  a  personal  debt  due  from  the 
plaintiff  in  his  own  right,  because  this  could  occa- 
sion no  disturbance  in  the  administration  of  the 
assets.  (A) 

(239).  The  Bankruptcy  Act  in  England(/)  gave  a 
more  extensive  right  of  set-off,  extending  it  to 
"  mutual  debts  or  other  mutual  dealings."(7)  The 
Bankruptcy  Act,  Ireland,  18G7,(/'')  extended  the 
right  of  set-off  to  "  mutual  credits  or  mutual  debts." 

(240.)  Number  22  of  the  Statutory  Rules  appen- 
ded to  this  Act  by  way  of  Schedule,  interprets  the 
scope  and  meaning  of  this  part  of  the  subsection  (3.) 
It  provides  that, "  A  defendant  in  an  action,  may  set 
off  or  set  up,  by  way  of  counter-claim,  against  the 
claims  of  the  plaintiff,  any  right  or  claim,  whether 
such  set-off  or  counter-claim  sound  in  damages  or 
not,  and  such  set-off  or  counter-claim  shall  have  the 
r.ame  effect  as  a  statement  of  claims  in  a  cross  action, 
so  as  to  enable  the  Court  to  pronounce  a  final  judg- 
ment in  the  same  action,  both  on  the  original  and 
on  the  cross-claims.  But  the  Court  or  Judge  may, 
on  the  application  of  the  plaintiff  before  trial,  if  in 
the  opinion  of  the  Court  or  Judge  such  set-off  or 
counter-claim  cannot  be  conveniently  disposed   of 


In  Bank- 
ruptcy. 


Under  the 
Juilicature 
Act  and 
Kults. 


(A)  Taylor  v.  Taylor,  L.  R.  20  Eq.  155  .M.  R. 
(0  S.  39. 

0")  See  Ex  parte  Price  L.    R.  10  Ch.  G48,  L.J  J.,   as  to  wliat  are 
mutual  dealings. 
(^)  S.  251. 


SET-OFF   UNDER  JUDICATURE  ACT.  193 

in  the  pending  action,  or  ought  not  to  be  allowed,  Set-offana 
refuse    permission  to  the  defendant  to  avail  him-    ^ctejT" 
self  thereof."  (i) 

The  Judicature  Act  has  thus  conferred  on  a 
defendant,  in  the  way  of  set-off  or  counterclaim, 
advantages  vastly  transcending  anything  which  he 
possessed  before,  either  at  law  or  in  equity,  or 
even  in  bankruptcy ;  it  enables  him  to  have  the 
benefit  of  set-off  for  amounts  either  greater  or  less 
than  the  plaintiff  demands,  and  for  unliquidated  dam- 
ages as  well  as  for  ascertained  debts.  Even  a  liability 
to  costs  under  a  judge's  order  may  be  the  subject  of 
a  set-off.  (h)  It  may  be  made  available  in  an  action  of 
trover  or  trespass,  as  well  as  in  any  other  action,(Z) 
and  probably  one  set  of  unliquidated  damages  may 
be  set  ofi"  against  another  of  the  same  nature.  "  It 
was  "  (as  stated  by  Mr.  Justice  Quain)  "the  scandal 
of  our  past  procedure,  that  A  might  have  a  liquidated 
claim  against  B,  and  B  a  claim  for  damages  against 
A,  and  yet  B  could  not  set  up  his  counterclaim  in 
an  action  by  A,  but  must  bring  a  fresh  action." (m) 
But  the  plaintiff  might  be  resident  abroad,  and  there 
might  be  difficulty  in  serving  him  with  the  writ  in 
the  cross  action,  or  the  plaintiff's  demand  might  be 
indisputable,  and  he  might  have  judgment  and  the 
fruits  of  it  long  before  the  defendant  could  recover 
his  cross  demand. 

Again,  the  plaintiff"s  action  might  be  for  goods 
sold  and  delivered,  and  the  only  answer  to  it  might 
be  that  the  plaintiff  had  been  guilty  of  fraudulent 
misrepresentation  as  to  the  nature  of  the  goods, 
which  might  fail  him,  by  way  of  defence,  if  it 
happened  that  he  had  accepted  and  kept  the  goods, 

O")  Rule  22  in  Schedule,  Ord.  19  R.  3,  J.  A.  1875. 
(k)  See  Philpott  v.  Lehain,  20  SoL  Jour.  605  C.  P.  D. 
(0  See  Seligman  v.  Hutt,  W.  N.  1875,  249 ;  20  Sol.  Jour.  139. 
(m)  Cappelaus  v.  Brown,  W.  N.  1875,  231 ;  20  Sol.  Jour.  98. 

K 


194  SET-OFF   UNDER   JUDICATURE   ACT. 

Set-off  and  ov  made  part  payment,  without  prompt  repudiation, 
claim. '  and  in  that  case  he  had  no  defence  to  the  action, 
although  he  might,  by  way  of  cross  action,  recover 
the  damages  he  was  entitled  to.  The  statute  relieves 
the  defendant  from  all  difficulty,  by  enabling  him  to 
add  a  counterclaim  for  damages,  in  addition  to  his 
defence  of  fraud. (71) 

So,  where  an  action  was  brought  against  an  insur- 
ance company  claiming  damages  for  breach  of  a 
contract  to  execute  and  deliver  a  policy  of  assurance 
to  the  Plaintiff,  after  the  company  accepting  pay- 
ment of  a  premium,  which  they  had  tendered  back 
on  discovery  of  material  circumstances,  which  they 
alleged  were  fraudulently  concealed  from  their  know- 
ledge, and  the  plaintiff  having  refused  to  accept  the 
tender,  this  might  probably  furnish  no  defence  to  the 
action,  and  the  company  were  without  remedy, 
except  that  of  filing  a  bill  in  Chancery, (0)  but  now 
the  statute  enables  the  defendant  to  resist  the  action 
by  a  counterclaim  to  have  the  agreement  set  aside 
on  the  ground  of  fraud. 

•  Of  course  a  cross  demand  on  which  no  action 
could  be  maintained,  cannot  be  relied  on  by  way  of 
set-off,  ex.  (jr.  a  debt  contracted  by  an  infimt,  and 
not  ratified  in  writing  (this  was  before  the  Act  87 
&  38  Vic.  c.  62,  s.  2),(p)  or  a  demand,  the  enforce- 
ment of  which  by  action  would  be  restrained,  ex. 
gr.  after  an  order  made  for  the  administration  of  the 
estate  of  a  deceased  person. ((/) 

The  counterclaim  may  sound  in  damages, (?■)  but 

(«■)  See  Evans  v.  Gann,  W.  N.,  1875,  191),  Lush,  J. 

(o)  See  Hancock  j;.  Macnamara,  Ir.  Rep.  2,  Eq.  48G;  Deposit  Life 
Assurance  Company  v.  Ayscough,  6  El.  &  Bl,,  764. 

(/))  Rawley  v.  Rawley,  L.  R.  1,  Q.  B.  I).  4G0  ;  24  W,  R.  993. 

(q)  Newell  V.  National  Provincial  Bank,  L.  R.  1,  0.  P.  D.,  496;  24 
W.  R.,  458;  see  Seligraanv.  Hutt,  W.  N.  1875,  249,20  Sol.  Jour.  139; 
a  case  of  administration  of  an  estate  in  Bankruptcy. 

(r)  Manchester  and  Sheffield  Railway  Company  v.  Brooks,  L.  R.  2, 
Ex.  D.  243;  25  W.  R.  413. 


ONE  TRIAL   AND  JUDGMENT.  195 

limited  to  date  when  writ  issued. (rr)     Where  two  Set-offami 
or  more  plaintiffs  sue  for  a  joint  claim,  the  defendant     claim. 
is  at  liberty  to  set  up  one  or  more  counterclaims 
against  each  plaintiff,  (s) 

(241.)  One  of  the  objects  of  the  subsection  3  is  to  One  trial 
avoid  multiplicity  of  suits,  so  that  there  may  be  but  judgment, 
one  action  in  relation  to  the  same  subject-matter. 
Two  actions  are  converted  into  one,  the  claim  and 
the  counterclaim  being  tried  simultaneously,(^)  and 
the  Court  is  enabled  to  give  the  defendant  specific 
relief  in  regard  to  his  cross  claim, (u)  and  to  pro- 
nounce a  final  judgment  in  the  one  action,  both  on 
the  original  and  cross  claim. (i;)  If  tlie  case  be  one  of 
pecuniar}^  demands,  and  the  balance  prove  to  be  in 
favour  of  the  defendant,  the  Court  may  give  judg- 
ment for  the  defendant  in  respect  of  such  balance, 
or  may  otherwise  adjudge  to  him  such  relief  as  he 
may  be  entitled  to  upon  the  merits  of  the  case,('Z<;) 
and  on  the  other  hand,  if  the  amount  of  the  counter- 
claim be  less  than  the  plaintiff's  demand,  the  Court 
will  give  him  credit  for  it,  pro  tanto,  whereas  here- 
tofore he  was  allowed  no  credit  whatever. (a:)  If 
the  plaintiff's  claim  be  reduced  by  the  counterclaim, 
he  recovers  only  the  balance,  and  the  question  of 
costs,  under  the  County  Courts  Acts,  must  be  decided 
with  reference  to  that  balance.  (?/) 

(242.)  As  examples  of  cases  in  which  cross  claims  Examples 

^  ^  ^  _  ,  of  cross 

have  been  allowed,  the  following  may  be  mentioned,  claims. 

(rr)  Original  Hartlepool  Company  v.  Gibb,  L.  R.  5  Chan.  D.  713,  A.  C. 

(s)  Manchester  Railway  Company  v.  Brooks,  ubl  supra. 

(jf)  See  Norton  and  Cannock  Coal  Company  y.  Merriman,  W.  N.  1875, 
219. 

(m)  See  Ord.  xix,  R.  3,  English. 

(v)  See  Rule  22  of  Schedule. 

(w)  See  Ord.  xxii,  R.  10,  English,  and  Rolfe  v.  M'Claren,  L.  R.  3 
Ch.  D.  106,  24  W.  R.  816. 

(a;)  Mostyn  v.  The  West  Mostyn  Coal  and  Iron  Company,  L.  R.  1, 
C.  P.  D.  145 ;  24  W.  R.  401. 

0)  Staples  V.  Young,  L,  R,  2,  Ex.  D.  324,  25  W.  R.  804. 

k2 


congruous. 


196  EXAMPLES   OF   CROSS   CLAIMS — NATURE   OF. 

Sei-offand  Action  for  rent  on  a  lease,  counterclaim  for  breach 
claim.  of  covcnant  in  the  lease,(s)  action  for  price  of  shares, 
counterclaim  for  fraudulent  misrepresentation  of 
value  of  shares,((x)  action  for  price  of  iron  sold  and 
delivered,  counterclaim  for  breach  of  warranty  of 
quality  of  the  iron,  and  for  damages  accrued  by 
defendant's  sale  of  the  same  iron  to  third  par- 
ties, and  being  obliged  to  allow  certain  deductions 
owing  to  its  inferior  quality, (6)  action  for  price  of 
goods,  consisting  of  machinery,  counterclaim  for 
damages,  owing  to  bad  packing  of  same,(c)  petition 
of  right  against  the  Crown,  for  money  due  as  a 
reward  for  improvements  in  artillery  invented  by 
plaintiff,  counterclaim  for  expenses  occasioned  in 
connexion  with  same.((:?) 

Counter-  (243.)  The  defendant  seems  to  be  "  entitled  to  set 

claim  must  ■         i    •        n      j    • 

not  be  iu-  up  any  counterclaim  that  is  not  so  incongruous  as 
to  be  incapable  of  being  conveniently  tried  with  the 
original  claim."(e)  Thus,  in  an  action  to  recover  bal- 
ance of  purchase-money  on  sale  of  a  public  house,  a 
counterclaim  was  allowed,  seeking  to  recover  back 
the  deposit  paid,  on  the  ground  that  the  sale  was 
induced  by  false  representations  of  the  value  of  the 
business  made  to  the  defendant,  it  being  considered 
that  both  claims  might  be  very  conveniently  tried 
together.  (/)  But  the  Court  has  a  large  discretion 
to  disallow  a  counterclaim  where  it  thinks  it  ought 
not  to  be  combined  with  the  original  claim,  and  it 
certainly  would  embarrass  both  the  plaintiff  and 
the  judge  and  jury,  to  consider  two  claims  alto- 
gether incongruous  in  their  nature,  as  for  example, 

(z)  Atkinson  v.  Ellison,  W.  N.  1875,  19'J. 
(a)  Anon.  20  Sol.  Jour.  81. 
{b)  Anon.  20  Sol.  Jour.  81,  Lush,  J. 
(c)  Anon.  W.  N.  1875,  218. 
id)  Thomas  v.  The  Queen,  W.  N.  1875,  218. 

(e)  Bartholomew  v.  Kawlings,  W.  N.  1876, 56;  20  Sol.  Jour.  281,  per 
Archibald,  J, 
(0/6. 


COUNTERCLAIM   NOT  INCONGRUOUS.  197 

where  in  an  action  for  assault  and  battery  of  the  set-ofand 

cotmter- 

plaintift,  the  defendant  attempted  to  set  up  a  counter-  daim. 
claim  against  the  plaintiff  for  his  seduction  of  the 
defendant's  daughter.(5r)  So  in  an  action  for  assault 
and  battery  and  defamation,  a  counterclaim  for 
breach  of  an  agreement  to  repair  the  premises  in 
regard  to  which  the  dispute  arose,  was  considered 
not  sufficiently  connected  with  the  plaintiff's  cause 
of  action. (/i)  Where,  in  an  action  for  rent,  the 
defendant  pleaded  a  set-off  for  price  of  butchers' 
meat,  and  a  counterclaim  for  specific  performance 
of  an  agreement  for  lease  of  the  premises,  and  sought 
damages  for  non-performance,  the  Judge  deemed 
the  counterclaim  not  sufficiently  embarrassing  to 
be  struck  out,  and  is  reported  to  have  said,  that  to 
do  so  would  be  against  the  spirit  of  the  Act,  to 
have  two  proceedings  where  everything  could  be 
decided  in  one,  and  that  it  was  not  even  a  case  /\ 
for  transfer  to  the  Chancery  Division.(i)  Again,  /  ' 
in  an  action  on  a  bill  of  exchange,  defence 
that  the  bill  was  held  by  plaintiff  as  a  trustee  for 
A  B,  a  counterclaim  was  allowed  to  the  effect  that 
A  B  and  the  defendant  were  jointly  engaged  in  one 
employment,  and  agreed  that  their  earnings  should 
be  jointly  divided,  and  that  A  B  had  fraudulently 
refused  to  account  for  his  share  of  the  receipts  ' 
A  B,  being  made  a  party  to  the  counterclaim. (/)  On 
the  other  hand,  where  the  action  was  for  libel 
published  by  a  shareholder  in  a  public  company  on 
one  of  its  directors,  charging  the  plaintiff  with 
being  guilty  of  conspiracy  and  fraud,  a  counterclaim 
for  losses   sustained   in  respect    of  shares   bought 

{g)  See  Cappelaus  v.  Brown,  W.  N.,  1875,  231  ;  20  Sol.  Jour.  98, 
Quain,  J. 

{h)  Lee  V.  Colyer,  W.  N.,  1876,  8  ;  20  SoL  Jour.  177,  Quain,  J. 

(0  Alwood  V.  Miller,  or  Milraan,  W.  N.,  1876,  11 ;  20  Sol.  Jour. 
218,  Lindley,  J. 

0")  Macdonald  v.  Bode,  W.  N.,  1876, 23 ;  20  Sol.  Jour.  241,  Lindley,  J. 


198  COUNTERCLAIM — SAME  TEAXSACTION. 

Set-ofand  On  false  representations,  involving  not  only  the 
claim,  plaintiff,  but  the  other  directors  of  the  company  not 
named,  was  disallowed,  being  long  and  embarrassing, 
and  so  the  more  likely  to  prejudice  the  plaintiff  in 
the  trial  of  his  action,  and  rendering  it  difficult  to 
keep  the  jury  from  mixing  up  the  two  cases.  But  the 
order  of  refusal  was  made  not  only  without  preju- 
dice to  any  action  the  defendant  might  bring,  but 
on  the  terms  that  the  plaintiff  in  the  original  action 
should  not  issue  execution  on  any  judgment  hje 
might  recover  without  leave  of  the  Court.(/i(;) 
Where  a  trustee  brought  an  action  against  his 
cestui  que  trust,  seeking  to  be  indemnified  in  re- 
spect of  a  sum  of  money,  which  the  plaintiff  had 
been  compelled  to  pay  by  reason  of  an  innocent 
breach  of  trust,  induced  by  the  joint  and  several 
covenant  of  the  defendant  and  the  defendant's 
father  to  indemnify  the  plaintiff,  the  defendant 
pleaded  by  way  of  counterclaim,  that  the  covenant 
had  been  obtained  by  duress  and  fraud  of  his 
father — that  plaintiff  and  one  E.  S.  (made  a  party) 
were  executors  of  his  father,  and  had  assets  suffi- 
cient to  satisfy  the  breach  of  covenant,  the  Court 
excluded  the  counterclaim,  as  it  required  in  default 
of  an  admission  of  assets,  an  administration  of  the 
estate  of  the  father,  and  the  original  action  ought 
not  to  be  stayed  for  the  purpose,  and  as  being  also 
so  separated  from  the  original  claim  as  that  to 
allow  it  would  be  doing  the  plaintiff  an  injustice.(^) 
ConntfT-  (24<4.)  The  examples  of  counterclaims  given  in 
farconiined  the  forms  10,  14,  24  of  tlic  Appendix  C  to  the  Judi- 
tran'l^ction  caturc  Act,  1875  (m)  are  such  as  had  grown  out 
of  the  same  transactions  which  gave  rise  to  the 

(/O  Nicholson  V.  Jackson,  W.  N.,   1876,  38,  20   Sol.  Jour.  259, 
Linriley,  J. 

(0  i'atlwick  V.  Scott,  L.  R.  2,  CIi.  D.,  73G;  24  W-  R.  723  V.  C.  H. 
(m)  Vide  infra,  Appendix,  Part  2. 


CROSS  RELIEF  AGAINST  OTHER  PERSONS.  199 

plaintiff's  claim.  Some  of  the  Judges  in  England,  Set-offami 
however,  seem  to  have  considered  that  it  need  not,  '^liaim.' 
in  any  way,  relate  to,  or  be  connected  with,  the 
original  claim  of  the  plaintiff.  For  example — that 
to  an  action  for  the  price  of  timber  sold  and  de- 
livered, a  counterclaim  might  be  maintained  for 
damages  in  respect  of  an  insufficient  delivery  of 
timber  in  respect  of  other  cargoes,  and  on  an  earlier 
contract.  (>«,) 


CHAPTER  XXIV. 

Cross  Relief  against  Co-defendants  and  Third 

Persons. 

Section  27.     Subsection  (3.) 

245.  Cross  relief  against  co-defendant  and  third  person,  p.  199. 

246.  Must  relate  to  original  subject  of  the  suit,  200. 

247.  Must  include  relief  against  the  Plaintiff,  202. 

248.  Other  Collateral  relief  between  co-defendants,  203. 

249.  By  way  of  interpleader,  204. 

250.  Not  for  third  person,  204. 


(245.)  Under  the  latter  clause  of  Subsection  (8)  cross  relief 
of  section  27(a)  the  High  Court  of  Justice  and  the  attlntnt 
Court  of  Appeal  have  power  to  grant  to  any  defend-  ^^^  ^^^^^ 

1  -t^  sr  o  J  persons. 

ant  in  respect  of  any  equitable  estate  or  right  or 
other  matter  in  Equity,  and  also  in  respect  of  any 
legal  estate,  right  or  title  claimed  or  asserted  by  him, 
not  alone  against  the  plaintiff,  but  "  also  all  such 
relief  relating  to  or  connected  with  the  original 
subject  of  the  cause  or  matter,  and  in  like  manner 
claimed  (i.e.  properly  claimed  in  his  pleading) 
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 

(«)  Cappelausy.  Brown,  W.  N.,  1875,  231;  20  Sol.  Jour.  98,Quain,  J. 
(a)  J.  A.,  1877,  s.  27,  sub.  3 ;  J.  A.,  1873,  s.  24. 


200 


SHOULD   RELATE  TO   SAME  MATTER. 


against 

other 

persons. 


Should 
relate  to 
ori,irinal 
subject  of 
the  suit. 


'rossrdief  against  such  person,  if  he  had  been  made  a  defendant 
to  a  cause  instituted  by  the  same  defendant  for  the 
same  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  served  in  the  ordinary  way  by  such  defend- 
ant." 

(246.)  A  counterclaim  must  of  necessity  relate 
to  or  be  connected  with  the  original  subject  of  the 
cause  or  matter ;  therefore  whether  the  counterclaim 
includes  a  co-defendant  or  a  third  person  it  should 
be  confined  strictly  to  the  same  specific  property 
and  transaction  which  is  the  subject-matter  of  the 
original  action, (6)  and  where  it  is  of  such  a  nature 
that  it  would  in  the  opinion  of  the  Court  bring  in  a 
new  subject-matter,  which  could  be  better  dealt 
with  in  a  separate  action,  or  if  the  allowing  of  it 
would  unfairly  prejudice  or  delay  the  plaintiff,  it 
will  be  refused.  Thus  in  a  suit  for  specific  per- 
formance of  a  contract  for  sale  of  land  entered  into 
by  the  defendant  and  the  plaintiff,  where  the 
defendant  was  only  the  equitable  owner  of  the 
property,  the  legal  estate  being  outstanding  in  a 
trustee  who  (as  alleged)  improperly  refused  to  con- 
cur, and  thereby  prevented  the  defendant  from 
fulfilling  his  contract,  in  respect  of  which  wrongful 
refusal  the  defendant  sought  indemnity  from  him,  the 
Court  refused  to  allow  a  counterclaim  to  that  effect 
to  be  filed,  but  gave  liberty  to  serve  the  trustee 
with  a  notice  to  bind  him  under  the  English  Order 
xvi,  R.  18.(c)  But  where  the  counterclaim  set  up 
a  case  not  only  closely  connected  with  the  original 
cause  of  action,  but  raising  a  question  in  which  the 

(b)  Harris  v.  Gamble,  W.  N.,  1877,  U2,  V.  C.  H. 

(c)  Treleavan  ».  Bray,  L.  R.,  1  Ch.  D.  176  ;  24  W.  R.  198;  20 
Sol.  Jour.  112. 


persons. 


SHOULD  RELATE  TO   SAME  MATTER.  201 

plaintiff  was  materially  interested,  and  had  impli-  Cross  claims 
cated  himself  by  his  conduct  or  consent,  and  was  third 
necessary  to  enable  the  Court  to  decide  the  plaintiff's 
contention,  and  to  give  the  proper  rehef,  the  Court 
refused  to  set  it  aside;  as  where  it  alleged  that 
the  plaintiff,  a  second  mortgagee,  was  not  entitled  to 
the  relief  he  sought  against  the  defendant,  a  first 
mortgagee  of  the  same  property,  seeking  an  account 
of  what  was  due  to  defendant,  and  a  redemption  of 
the  property,  because  the  defendant  had  entered  into 
an  agreement  to  sell  the  property  to  a  third  person, 
under  a  power  of  sale  in  his  mortgage,  and  that 
plaintiff  had  also  agreed  to  concur  in  the  sale  and 
was  a  necessary  party  to  the  conveyance,  but  had 
refused  to  execute  it.  Thus  the  matter  as  between 
the  plaintiff,  defendant,  and  purchaser  was  at  a  dead 
lock  until  the  question  was  decided  whether  the 
plaintiff  should  or  not  be  ordered  to  concur,  and 
therefore  the  defendant  was  entitled  to  have  the 
purchaser  brought  before  the  Court  in  a  crossclaim 
for  specific  performance  of  the  contract  of  sale,  and 
the  whole  might  be  determined  in  one  and  the  same 
action. (6?)  So  where  an  action  was  brought  to 
recover  balance  of  purchase-money  on  a  sale  of  a 
public  house,  in  addition  to  a  defence  on  the  ground 
of  fraud,  a  counterclaim  was  allowed  by  the  defen- 
dant as  purchaser,  against  the  plaintiff  and  a  third 
person,  his  broker  and  agent,  to  recover  back  the 
deposit  already  paid  on  the  sale,  on  the  ground  of 
false  representation  as  to  the  value  of  the  business 
made  by  the  plaintiff  through  his  agent,  (e) 

As  regards  set-off,  where  a  direct  relation  is 
alleged  to  subsist  between  the  plaintiff  and  a  third 

id)  Deer  v.  Sworder,  L.  R.  4,  Ch.  D.  476;  25  W.  R.  124  V.  C.  H. 

(e)  SeeBartholomewi;.Rawlings,W.N.  1876.56;  20  Sol.  Jour.  281, 
reported  manifestly  by  same  hand  in  both  publicjitions  and  inaccurate 
in  each  as  to  names. 

K.3 


202  MUST  INCLUDE   RELIEF  AGAINST  PLAINTIFF. 

Cross  relief  person,  ex.  QT.,  a  trustee  and  cestui  que  trust,  it  is 
"^other      competent  for  the  defendant,  when  sued  by  the 
persons.    ^j.^g|^gg  f^p  ^j^^^^  third  person,  under  the  wide  powers 
conferred  by  this  subsection,  to  make  the  cestui  que 
trustee  a  defendant,  and, by  counterclaim  against  him 
and  the  plaintiff,  have  the  benefit  of  any  set-off 
-which  would  have  been  available  if  the  real  plaintiff 
had  sued.(/) 
Must  (247.)  V.  C.  Hall  is  represented  to  have  held,  that 

relief  wliere  a  defendant  seeks  to  raise  a  question  as 
pfaTiulff.*'**'  between  himself  and  his  co-defendants,  to  be  fol- 
lowed by  direct  relief  in  the  same  action,  he  may 
do  this  by  way  of  counterclaim  as  against  the 
defendant  alone,  without  making  the  plaintiff  a 
party  to  it.((/)  What  was  sought  in  that  case  was,  to 
raise  questions  of  priority  and  marshalling  as 
between  two  sub-mortgagees  of  a  first  mortgagee  in 
a  foreclosure  suit  brought  by  a  second  mortgagee 
against  mortgagor,  first  mortgagee  and  his  sub- 
mortgagee, delivering  a  copy  of  the  defence  and 
counterclaim  to  his  co-defendant  alone.  The  Vice- 
Chancellor  considered  this  was  the  proper  course, 
and  not  by  way  of  notice  under  Ord.  xvi.  R. 
17,  18.  But  this  has  been  questioned  and  dis- 
puted by  Sir  George  Jessel,(/i)  and  since  repudi- 
ated by  V.  C.  Hall  himself,(i)  and  it  is  now  quite 
settled  in  England  that  a  counterclaim  which  does 
not  seek  relief  against  the  plaintiff  but  against 
a  co-defendant  alone(j)  or  against  a  third  person 

(f)  Macdonald  v.  Bode,  W.  N.  187G,  23;  20  Sol.  Jour.  241,  per 
Lindley,  J.  See  Bottomley  v.  Brooke,  cited  1  T.  li.  G2;3,  as  to  set-off 
at  law  of  a  debt  due  to  the  defeudant  h\  the  plaintiff  and  hisc.  q.  t. 

(<7)  Shepherd  v.  Deane,  L.  R.  2,  Ch.  D.  223;  24  W.  R.  3G3;\V.  N., 
187G,  OG ;  20  Sol.  Jour.  332  V.  C.  H. 

{h)  Furncss  v.  Booth,  L.  R.  4,  Ch.  D.  586 ;  25  W.  R.  2G7,  M.  R. 

(i)  Harris  v.  Gamble,  W.  N.,  1877,  142  V.  C.  H. 

0)  WarnLT  v.  Twining,  24  W.  1!.,  53G  M.  K.  Furness  v.  Booth, 
vbi  supra. 


COLLATERAL   RELIEF  BETWEEN    CO-DEFENDANTS.  203 

alone  ex.  gr.,  for  indemnity,  cannot  be  allowed.  (7^)  Cross  reiie/ 
As  expressed  by  Lord  Justice  Mellish,  a  counter-     "oth^r^ 
claim  against  a  third  person,  between  whom  and  the    p*^^^*- 
plaintiff  there  is  no  privity  or  relation,  would  be  an 
absurdity,  and  it  would  be  intolerable  that  the  plain- 
tiff, who  might  have  a  perfectly  good  case  against  the 
original  defendant,  should  be  kept  waiting  for  his 
remedy  while  the  defendants  were  fighting  inter  86.(1) 

(248.)  However,  itis  scarcely  to  beassumedthatthe  Collateral 
High  Court  is  now  precluded  from  giving  collateral  between  co- 
relief  as  between  co-defendants,  and  in  the  same  suit,  *^*'^^'^'*^'^^^- 
although  in    a  form  and   manner   not   accurately 
expressed  by  the  term  counterclaim,  which  means 
ex  vi  termini,  a  claim  counter  or  in  opposition  to 
the  claim  of  the  plaintiff,  or  that  this  form  of  relief 
is  not  open  because  it  is  not  a  counterclaim  against 
the    plaintiff.      For    example,   in    a    suit    against 
trustees  of  a  marriage  settlement,  charging  them 
with  a  breach  of  trust  in  lending  the  trust  fund  on 
the  personal  security  of  the  husband,  and  making 
the  husband,  who  was  tenant  for  life  of  the  fund,  a 
party  defendant,  the  breach  of  trust  having  been 
committed  at  his  instance  and  for  his  benefit,  the 
Court  of  Chancery  has,  without   any  claim  being 
specifically  made  or  prayed  by  the  plaintiff  or  by  the 
trustees  further  than  by  the  latter  making  the  case 
by  their  answer,  decreed  and  ordered  the  defendant 
the  cestui  que  trust  for  life  to  recoup  the  trustees. (-su) 
In  a  later  case  following  the  authority  of  this(w) 
a  like  decree  was  made  in  favour  of  the   trustees 
and  it  does  not  appear  whether  the  case  was  specific- 

(fc)  Harris  i;.  Gamble,  ubi  supra ;  Treleavan  v.  Bray,  24  W.  R.  198 
A.  C,  per  Mellish,  L.  J. 

(0  Treleavan?;.  Bray,  20 Sol.  Jour.  112;  A.  C.  S.  C.inL.R.  1,  Ch.  D. 
176,  and  24  W.  R.  198,  but  observation  of  the  Lord  Justice  is  not  men- 
tioned. 

(m)  Raby  v.   Ridehalgh,  7  De  Gex,  M.  &  G.  109. 

(«)  Keays  v.  Lane,  Ir.  Rep.  3,  Eq.  1,  Brewster,  L.  C. 


204  COUNTERCLAIM  BY  THIRD  PERSON — INTERPLEADER. 

Cross  relief  ally  raised  by  the  trustees  in  their  affidavits  by  way 
"oaef     of  answer ;  but  the  Lord  Chancellor  (Brewster)  said, 
persona.    ^-^^  tenant  for  life  was  a  necessary  party  to  the  suit 
in  order  that  full  justice  might  be  done  in  it,  and 
relief  might  be  given  against  him  in  that  suit  with- 
out hardship  or  surprise  and  without  a  cross  bill. 

There  is  another  class  of  cases  in  which  the  Court 
of  Chancery  was  in  the  habit  of  deciding  questions 
between  co-defendants,  i.e.,  where  the  decision  was 
requisite  to  work  out  the  equity  to  which  the  plain- 
tift'  was  entitled,  ex.  gr.,  a  question  as  between  the 
devisees  and  heirs-at-law  of  a  testator,  (o) 
By  way  (249.)  In  One  case  the  Court  refused,  at  least  in 

pleader.  the  abscuce  of  the  plaintiff,  to  strike  out  a  counter- 
claim by  a  defendant  against  the  co-defendant  and 
plaintiff,  which  sought  to  raise  a  question  in  the 
nature  of  an  interpleader,  the  plaintiff  and  co- 
defendant  both  claiming  the  same  fund  from  the 
defendant  who  counterclaimed,  and  V.  C.  Hall  is 
reported  to  say,  the  section  must  not  be  narrowed 
down  so  as  to  exclude  a  form  of  pleading  which  the 
plaintiff  might  think  a  convenient  mode  of  settling 
the  question  and  ascertaining  the  rightsof  theparties 
once  for  all.(p) 
Nocounter-  (250.)  It  would  secm  that  a  third  person, made  a 
thtrT  ^  ^  defendant  by  way  of  counterclaim,  is  not  at  liberty 
person.  ^^  introducc  a  fourth  person,  nor  can  he  make  a 
counterclaim  against  the  defendant  who  brought 
him  before  the  Court  by  way  of  counterclaim,  on 
the  ground  that  this  would  make  the  record  in  such 
a  state  that  it  would  be  untriable.(g) 

(o)  See  Keogh  v.  Keogh,  Ir.  Rop.  8  Eq.  201,  per  M.  R.  (Sullivan), 
aflSrmed  in  Court  of  Appeal,  ib.  p.  149 ;  Green  v.  Pledger,  3  Hare,  1G5. 

(p)  Young  V.  Brassey,  21  Sol.  Jour.,  48  V.C.H. ;  and  see  also  Jebbs  v. 
Lewis,  20  Sol.  Jour.  56,  infra  (254)  p.  209. 

(q)  Street  v.  Gorer,  W.N.,  1877,  Ur>  ■  24  W.R.,  750,  Q.  B.  D. ; 
Sec  Harris  v.  Gamble,  W.N.,  1877,  l42  V.C.II.,  whore  the  couiiterclaim 
was  against  a  co-defendant  including  other  property. 


[     205     ] 

CHAPTER  XXV. 
Binding  Third  Persons  in  a  future  Action. 

Section  27.     Subsection  (3.) 

251.  Notice  of  future  claim,  p.  205. 

252.  Examples  of  notices  to  bind,  205. 

253.  No  direct  relief  given,  207. 

254.  By  way  of  interpleader,  209. 

255.  Notice  by  a  third  person,  210. 

256.  Leave  to  serve  refused,  211. 


(251.)  The  section  27,  subsection  (3),  as  inter-  Notice  of 
preted  by  the  Rules  of  Court,  made  in  pursuance  (."^"m^ 
of  its  intention,(a)  provides  that  where  a  defendant 
is  or  claims  to  be  entitled  to  contribution,  indem- 
nity, or  other  relief,  over  against  any  other  person 
(i.e.,  than  the  plaintifi),  or  where  from  any  other 
cause  it  appears  to  the  Court  or  a  Judge  that 
a  question  in  the  action  should  be  determined  not 
only  as  between  the  plaintiff  and  defendant,  but 
as  between  the  plaintiff,  defendant,  and  any  other 
person,  or  as  between  any  or  either  of  them, 
the  Court  or  Judge  may,  on  notice  being  given 
to  such  last -mentioned  person,  make  such  order 
as  may  be  proper  for  having  the  question  so  de- 
termined. (6)  Before,  or  at  the  time  of  making  such 
an  order,  the  Court  or  Judge  may  direct  such 
notice  to  be  given  by  the  plaintiff,  and  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  the  trial  as  he  thinks  fit.(c) 

(252.)  The  examples  given  in  the  Schedule  B,  Examples 
Form  1,  point  to  the  following  cases  : — A  defendant  f^  ^['nd"^ 
sued  as  surety  claims  to  be  entitled  to  contribution 
from  a  co-surety.     A  defendant  sued  as  acceptor  of 
a  bill  of  exchange  claims  indemnity  from  the  drawer 

(a)  Ord.  xvi.  RR.  17, 18, 19,  E.  (6)  Ord.  xvL  R.  17,  E. 

c)  Ord.  xvi.  R.  19,  E. 


206  EXAMPLES   OF   NOTICE   TO   BIND   THIRD   PERSON. 

Binding  for  whosG  accommodation  the  bill  has  been  drawn.(cZ) 
persom  by  A  defoiidant  sued,  as  being  an  agent,  claims  in- 
^_^^-  demnity  from  his  principal. (e)  But  it  is  open  to  a 
defendant  sued  for  breach  of  a  contract  to  provide 
goods  of  a  certain  quality,  to  notice  the  person  from 
whom  he  bought  a  portion  of  the  same  goods  under  a 
similar  contract,  one  of  the  questions  being  identical 
though  not  being  the  single  question  in  the  case,  (f) 
It  is  not  necessary  that  the  whole  cause  of  action 
between  the  plaintiff  and  the  defendant  should  be 
identical  with  that  between  the  defendant  and  the 
third  person,  •  but  there  must  be,  prima  facie,  a 
material  question  in  the  case  which,  without  pre- 
judicing or  delaying  the  plaintiff,  can  be  advan- 
tageously tried  and  decided  as  between  the  defen- 
dant and  the  third  person,  as  well  as  between  the 
plaintiff  and  the  defendant  ;(^)  and  where  the  action 
was  by  the  owner  of  a  ship  against  the  owner  of  the 
cargo  for  demurrage,  and  the  defendant  claimed  in- 
demnity from  the  buyer  of  the  cargo  as  being  the 
cause  of  the  delay  in  not  unloading  with  proper 
despatch,  the  Court  of  Appeal  (overruling  the 
decision  of  the  Queen's  Bench  Division)  held  that 
the  question  of  delay  as  between  the  defendant  and 
the  purchaser  was  the  same  as  that  between  the 
plaintiff  and  the  defendant,  although  the  measure  of 
the  liability  might  be  very  different. (/t)  In  one 
case  a  defendant  sued  by  a  builder  for  extra  work 

(_d)  Sec  /ra  re  Pearson  v.  Lane,  W.  N.  1S7.3,  248  ;  20  Sol.  Jour.  122, 
Qiiain,  J.,  National  Provincial  Bank  of  England  v.  Bradley  Bridge 
Co.,  W.N.  1876,  63;  20  Sol.  Jour.  297,  a  case  of  partial  failure  of  con- 
sideration. 

(e)  See  Seligman  v.  Mansfield  and  White  t).  Mansfield,  W.  N.  1S75, 
210;  20  Sol.  Jour.  121,  Quain,  J. 

(/)  Benecke  v.  Frost,  L.R.  1,  Q.  B.  D.  419,  2i  W.  R.  GG9. 

(a)  lb. 

(/«)  Swansea  Shipping  Companj- r.  Duncan,  L.R.  1,  Q.  B.  I).  G44,  25 
W.  R.  23:3 ;  see  also  Bower  v.  Hartley,  L.R.  1,  Q.  B.  D.  GJ2 ;  24  W.R. 
941 ;  20  Sol.  Jour,  743,  A.C. 


DIRECT   RELIEF   NOT   GIVEN.  207 

beyond  the  contract,  was  allowed  to  serve  notice  of   Binding 
indemnity  on  his  architect,  on  the  ground  that  the  persons  by 
latter  had  ordered  the  extras  without  the  defendant's      II!!' 
authority. (i)      In  another  case  in  equity  seeking 
an  injunction  against  a  defendant  and  five  of  his 
tenants   permitting    sewage    from  their  houses  to 
flow  into  plaintiff's  watercourse,  the  defendant,  a 
tenant,  delivered  a  counterclaim  against  the  prin- 
cipal defendant  on  his  covenant  for  quiet  enjoyment, 
and  for  indemnity  against  any  damages  and  costs  he 
might  be  ordered  to  pay  the  plaintiff,  and  the  Court 
held  this  was  not  a  case  for  a  counterclaim,  but  for  a 
notice  to  bind  the  co-defendant  under  Ord.  16,  R.  17, 
English.(j) 

(253.)  The  language  of  the  subsection  (3),  is  very  n^  ^jj-ect 
comprehensive  enabling  the  Court  to  grant  to  a  de~  ""^^'^^s^^'^"- 
fendant  in  the  action,  all  such  relief  relating  to 
or  connected  with  the  original  subject  of  the  cause 
or  matter  as  might  be  claimed  against  his  co-defen- 
dant, or  against  any  other  person  duly  served  with 
notice  in  writing  of  the  claim,  pursuant  to  any 
Rule  of  Court,  as  might  properly  have  been 
granted  against  the  thiixl  person,  in  a  suit  duly 
instituted  by  the  defendant  for  the  purpose.  It  would 
seem  to  indicate  that  the  Legislature  intended  a 
much  more  extensive  application  of  this  collateral  or 
secondary  relief  to  defendants,  than  the  cases  above 
referred  to  have  carried  out;  but  in  making  the 
Rules  of  Court  in  England,  the  Judges  (as  stated  by 
the  late  Lord  Justice  Mellish,  who  was  one  of  the 
Committee  of  Judges  who  settled  the  Rules),  having 
very  carefully  considered  the  meaning  of  this  pro- 
vision, came  to  the  conclusion  that  although  there 


(t)  Dawes  v.  Thornton,  W.  N.  1876. 74,  20  Sol.  Jour.  299,  Archibald, 
J. ;  and  see  Measurer  v.  Thomas,  W.  N.  1875,  203;   20  Sol.  Jour.  55. 
0)  Furness  v.  Booth,  L.  K.  4  Ch.  D.  586;  25  W.R.  267,  M.R. 


208  PERSONS  BOUND  IN  THE  FUTURE. 

Binding  was  power  SO  to  do,  it  would  not  be  advisable  to 
persontby  make  any  rule  which  would  enable  one  defendant 
xouce.  ^^  obtain  relief  against  another,  unless  in  the  class 
of  cases  in  which  the  plaintiff  was  directly  interested 
or  involved  in  the  relief  so  given.  Accordingly  the 
Merely  Euo-lish,  and  doubtless  the  Irish,  Eules  of  Court 
future!  respecting  notice  to  a  co-defendant  or  a  third  party, 
are  restricted  to  the  object  of  making  the  decision  in 
the  particular  action  between  the  plaintiff  and  de- 
fendant, binding  on  third  parties  conclusively  in  any 
future  proceeding,  and  are  scarcely  available  beyond 
the  simple  cases  of  suretyship  or  agency.  There  used 
to  be  cases  in  which  an  action  having  been  brought 
against  a  surety  on  a  bond,  and  the  sum  being  re- 
covered, the  surety  brought  his  action  against  the 
principal,  and  the  whole  question  had  to  be  tried 
afresh.(yt)  It  was  to  prevent  this  monstrous  injustice 
to  defendants  of  having  to  litigate  the  same  matters 
twice  over  as  between  different  parties,(?)  and 
to  obviate  the  scandal  of  having  it  differently 
decided  by  different  juries,  this  enactment  was 
passed,  (m)  to  estop  the  third  party  bound  to  indem- 
nify the  defendant  from  disputing  the  amount 
which  the  defendant  may  be  held  liable  to  pay.(n) 
It  also  enables  a  defendant  who  has  no  defence  to 
the  plaintiffs  action,  with  safety  to  consent  to  a 
judgment  against  him,  and  precludes  the  third 
person  from  saying  that  the  case  had  not  been 
properly  defended. (o)  The  object  contemplated  by 
these  rules,  therefore,  is  merely  to  bind  the  third 
party  in  a  future  proceeding;  but  if  the  original 

(k)  See'Selignan  v.  Mansfield,  W.  N.  1875, 240,  Quain  J. ;  20  Sol.  Jour. 
121. 

(0  Per  L.  J.  Blackburn,  Benecker  v.  Frost,  L.  R.  1  Q.  B.  D.  419,  A.C. 

(m)  Ex  parte  CoUie,  L.  R.  5  Ch.  D.  51 ;  24  W.R.  310 ;  20  Sol.  Jour., 
291,  A.C. 

(n)  Measurer  v.  Thomas,  W.  N.  1875,  205  ;  Sol.  Jour.,  Lush,  J. 

(o)  Warner  v.  Twing,  24  W.  R.  53G. 


BY  WAY  OF  INTERPLEADER.  209 

defendant  wants  to  get  direct  relief,  by  way  of  in-    Binding 

third 

demnity,  or  contribution,  or  otherwise,  against  the  perso7is  by 
third  party,  he  must  bring  an  action  against  him  '' — _' 
for  that  pui'pose,  because  it  would  be  intolerable 
that  the  plaintiff,  who  might  have  a  perfectly  good 
case  against  the  original  defendant,  should  be  kept 
waiting  for  his  remedy,  while  the  defendant  and  a 
third  person  were  fighting  inter  se,  in  a  matter  in 
which  the  plaintiff  was  indifferent, (j?)  and  the  pJain- 
tiflF  should  not  be  mixed  up  in  controversies  with 
which  he  has  no  natural  connexion. (g')  Of  course 
by  consent  of  the  plaintiff  and  of  the  thii'd  person, 
direct  relief  over  may  be  administered  in  the  same 
action;  as  where  the  action  was  on  a  bill  of  exchange, 
by  holder  against  the  acceptor,  and  the  defendant 
claimed  indemnity  over  against  the  drawer,  on  the 
gi'ound  of  partial  failure  of  consideration  for  the 
acceptance,  but  which  the  drawer  denied,  the 
defendant  offering  to  pay  the  amount,  the  only 
question  remaining  in  dispute  would  be  between 
drawer  and  acceptor,  and  the  acceptor  was  substi- 
tuted as  plaintiff  instead  of  the  holder,  on  the  terms 
of  the  defendant  paying  what  he  admitted  to  be 
due,  i.e.,  the  amount  of  the  bill,  less  the  amount  of 
the  alleged  failure  of  consideration,  and  the  drawer 
ta  pay  the  difference  and  to  continue  the  action 
against  the  acceptor  for  same.(?') 

(2b4>.)  In  one  instance  it  is  stated  this  provision  By  way 

.  •    n  1  ^  °^  inter- 

has  been  allowed  in  analogy  to  the  relief  by  way  of  pleader. 

interpleader,  to  give  the  defendant  protection  against 

a  double  claim,  ex.  gr.,  in  an  action  brought  against 

an  auctioneer  for  a  return  of  a  deposit  on  a  purchase, 

(p)  See  Treleavaa  v.  Bray,  L.  R.  1  Ch.  D.  176  ;  24  W.R.  198;  W.N. 
1875,234;  20  Sol.  Jour.  112. 

(5)  See  exparte  Smith,  In  re  Collie,  L.  R.  2  Ch.  D.  51 ;  24  W.  R.  310  ; 
20Sol.  Jour.  291,  A.C. 

(r)  See  the  National  Provincial  Bank  of  England  v.  Bradley  Bridge 
Co.,  W.  N.  1876,  63;  20  Sol.  Jour.  207;  Archibald  J. 


210 


NOTICE   BY  THIRD   PERSONS. 


Notice  by 
a  third 
person. 


Binding  by  the  purchaser,  where  the  defendant  had  reason 
persons  ly  to  fear  a  similar  action  being  brought  by  the  ven- 
1^'  dor.(.s)  But  it  is  not  competent  for  a  defendant  in 
an  action  of  tort,  ex.  gr.  for  negligence,  to  bring  a 
third  person  before  the  Court  by  notice  alleging 
that  he,  and  not  the  defendant,  is  the  party  responsible, 
and  thus  to  raise  this  question  between  the  third 
pei'son  and  the  plaintiff;  for  the  plaintiff  ought  not 
to  have  a  person  made  defendant  against  his  will, 
and  the  only  question  in  the  cause  is,  is  the  defendant 
guilty  of  the  negligence  that  caused  the  damage  to 
the  plaintiff,  and  besides  there  can  be  no  contribu- 
tion or  indemnity  or  relief  over  as  between  wrong- 
doers.(^) 

(255.)  In  one  case  it  was  considered  in  an  action 
for  damages  for  delay  in  unloading  a  cargo,  a  third 
person  served  with  such  a  notice  and  allowed  to 
defend  the  action  conjointly  with  the  defendant 
miofht  serve  a  similar  notice  on  and  bring  in  a  fourth 
party  against  whom  the  third  party  considered  him- 
self entitled  to  relief  over.(u)  In  another  and  later 
case  it  was  held  that  the  rule  was  not  to  be  read 
as  giving  any  person  brought  in  as  a  defendant  a 
right  to  bring  in  other  persons  toties  quoties,  which 
might  hinder  the  plaintiff  indefinitely ;  but  in  that 
case  the  Court  also  considered  it  would  not  be  a  wise 
exercise  of  its  discretion  to  allow  it,  as  it  would 
prejudice  the  plaintiff (f) 

(s)  Jebb  V.  Lewis,  20  Sol.  Jour.  56,  Lush,  J.,  and  sec  Young  v.  Brassey, 
21  Sol.  Jour.,  48,  V.  C.  H.,  which  was  the  case  of  a  counterclaim;  ante, 
(250). 

(<)  norwell  V.  London  General  Omnibus  Co.,  23  W.  R.  010,  A.  C; 
see  per  Cockburn,  L.  G.  J.,  at  p,  GI3,  overruling  S.  C,  25  W.  R.  512; 
W.  N.  1877,  p  102,  Ex.  D. 

(m)  Fowler  v.  Knoop  and  London  Banking  Assoc.  W.  N.  1877,  68, 
E.X..  D.,  5  March,  1877. 

(r)  Walker  v.  Balfour,  25  W.  R.  511,  C.  P.  D.,  11  April,  1877; 
and  see  also  Harris  v.  Gamble,  W.  N.  1877,  142,  V.  C.  H. ;  Street  v. 
Cover,  W.  N.  1877,  145,  Q.  B.  D. — cases  of  counterclaim. 


LEAVE   TO   SERVE.  211 

(2o().)  The  givino-  leave  to  a  defendant  to  serve  a    Binding 
third  person  with  notice  to  bind  him,  is  discretionary  persons  by 
with  the  Court  or  judge,  and  where  the  plaintiff      fj^' 
might  be  prejudiced  by  the  introduction  of  a  third  ^erv^*^ 
person  into  the  action  the   Court   has  refused  to  refused. 
allow  it,(i(;)and  it  has  been  granted  in  some  instances 
conditionally  on  obtaining  the  consent  of  the  plain- 
iiK{x) 


CHAPTER  XXVI. 

Incidental  Equities. 

Section  27.     Subsection  (4). 

257.  Incidental  Equities  to  be  noticed,  p.  211. 

258.  Probable  scope  of  this,  211. 


(257.)  Subsection  (4)  of  section  27, (a)  provides  incidental 
"that  the  said  Courts  ('i.c.,the  High  Court  of  Justice  be  noticed. 
and  the  Court  of  Appeal)  respectively,  and  every 
judge  thereof,  shall  recognise  and  take  notice  of  all 
equitable  estates,  titles,  and  rights,  and  all  equitable 
duties  and  liabilities  appearing  incidentally  in  the 
course  of  any  cause  or  matter,  in  the  same  manner 
in  which  the  Court  of  Chancery  would  have  recog- 
nised and  taken  notice  of  the  same  in  any  suit  or 
proceeding  duly  instituted  therein,  before  the  pass- 
ing of  this  (the  Judicature)  Act." 

(258.)  The  exact  purport  and  application  of  this  probable 
subsection  are  not  easy  to  foresee.  The  High  l^j^^  ° 
Court  of  Justice  is  required  not  merely  to  give 
effect  to  the  equitable  rights  of  a  plaintiff  or  defend- 
ant when  specially  claimed,  but  it  is  bound  to 
recognise  and  take  notice  of  all  equitable  estates, 
titles  and  rights,  duties  and  liabilities  which  may 

(v!)  See  Bower  v.  Hartley,  L.  R.  1  Q.  B.  D.  653  ;  24  W.  R.  941;  20 
Sol.  Joan,  743,  A.  C;  Walker  v.  Balfour,  25  W.  R.  511,  C.  P.  D. 

(x)  Treleavan  v.  Bray,  L.  R.,  1  Ch.  D.  176 ;  24  W.  R.  198 ;  20 
Sol.  Jour.,  112,  A.  C. 

(a)  J.  A.,  1877,  s.  27,  subs.  (4j;  J.  A.,  1873,  s.  24. 


212  INCIDENTAL  EQUITIES  NOTICED. 

Incidental  appear  incidentally  in  the  course  of  the  proceeding 
^!^^'  in  any  case  or  matter.  It  does  not  say  whether  the 
Court  is  to  give  effect  to  the  right  or  liability  as 
well  as  recognise  or  notice  it.  It  would  seem  that 
the  Court,  in  a  common  law  action,  will  recognise 
and  give  eifect  to  equitable  rights  so  far,  and  in  the 
same  manner,  as  a  Court  of  Equity  would  have  done 
in  the  like  circumstances.  But  it  may  be  questioned 
how  far  it  would  require  or  justify  the  application 
of  the  equitable  right  of  a  married  woman  to  a 
settlement  out  of  funds  realized  in  her  right,  through 
the  action  of  a  Court  of  Equity,  to  funds  realized  in 
her  right  in  a  common  law  action.  Again,  whether 
it  will  extend  the  garnishee  principle  of  attaching 
and  impounding  funds  to  answer  equitable  as  well 
as  legal  debts,  or  give  effect  to  a  solicitor's  lien  on 
the  sum  recovered  by  his  client  in  a  common  law 
action.(c6)  Itmay  have  application,  if  it  should  appear 
that  the  plaintifl  was  suing  as  a  mere  trustee  for 
another  and  that  the  cestui  que  trust  was  indebted  to 
the  defendant  in' respect  of  the  same  or  some  other 
transaction,  which  would  have  entitled  the  defend- 
ant to  a  set-off  or  counterclaim  if  the  real  defendant 
had  sued  ;  but  in  such  a  case  the  Court  would, 
probably,  require  the  real  owner  of  the  debt  to  be 
made  a  party  to  the  action. (6) 

An  instance  of  the  application  of  this  subsection 
(4)  appears  in  a  case  arising  on  an  interpleader  sum- 
mons, where  a  Sheriff  had  seized  certain  goods  under 
an  execution  against  a  husband.  It  appeared  that 
by  his  marriage  settlement  he  had  vested  in 
trustees  for  the  benefit  of  his  wife  all  his  household 
goods,  and  also  all  after-acquired  property  of  a 
similar  nature,  to  which  latter  class  the  goods 
seized  in  execution  belonged,  and  which,  accord- 

(a)  See  Wilson  i;.  Dundas,  W.  N.,  1875,  232. 

(6)  See  Macelonald  v.  Bode,  W.  N.,  187G;   20  Sol.  Jour.,  241. 


INCIDENTAL   EQUITIES   NOTICED.  213 

ing  to  the  decision  of  the  House  of  Lords,  incidental 
in  Holroyd  v.  Marshall,  (c)  were  bound  by  the  —  ' 
trusts  of  the  settlement.  Before  the  Judicature  Act 
the  Court  of  Law  would  be  bound  to  hold  the  execu- 
tion creditor  entitled  to  the  floods  brought  in  since 
the  settlement;  but,  on  application  to  the  Court 
of  Chancery,  the  Sheriff  would  have  been  restrained 
from  interfering  with  them.  Now  Mr.  Justice 
Lush  considered  himself  bound  to  administer  equity 
and  follow  the  decision  of  the  House  of  Lords  and 
order  the  Sheriff  to  with  draw,  (c?)  and  this  decision 
was  followed  by  Mr.  Justice  Archibald,  consider- 
ing that  the  principle  of  the  common  law,  that 
a  bill  of  sale,  purporting  to  transfer  property 
acquired  since  its  execution,  was  now  abrogated  by 
J.  A.,  1873,  section  25,  subs.  11,  and  that,  as  the 
Sheriff  seized  subject  to  the  equities  attaching  on 
the  property,  this  equity  should  be  noticed  and 
recognised,  (e) 


CHAPTER  XXVII. 

Equitable  Defences  in  lieu  of  Injunctions 
AGAINST  Legal  Claims. 

Section  27.     (Subsection  5.) 

259.  Proceedings  not  to  be  stayed  by  injunction,  p.  213. 

260.  Exceptions  to  this.  214. 

261.  Injunctions  from  Bankruptev,  215. 

262.  From  High  Court  in  England,  216. 

263.  Matter  of  Equity  to  be  pleaded,  216. 


(259.)  Section  27,  subsection  5,(a)  enacts  as  fol-  Proceed- 

,  ings  not  to 

lows  : be  stayed 

"  No  cause  or  proceeding  at  any  time  pending  in  tion!'^""*'' 
the  High  Court  of  Justice  or  before  the  Court  of 
Appeal    shall    be    restrained    by   prohibition   or 

(c)  Hob-oyd  V.  Marshall,  10  H.  L.  C,  191. 

(i)  Anon.  W.  N.,  1875,  203;  per  Lush,  J. 

(e)  Anon.  W.  N.,  1876,  24. 

(a)  J.  A.  1877,  s.  27,  subs.  (5);  J.  A.  1873,  s.  24,  subs.  (5). 


214  NO   INJUNCTION   AGAINST   ACTIONS. 

Equitable   injunction;  but  every  matter  of  equity  on  which  an 

J)efence  ill    .     ,  ,  .  •        ,    ,^  i  -  p  i 

lieu  Of  injunction  against  the  prosecution  oi  any  such  cause 
Injunction.  ^^  proceeding  might  have  been  obtained  if  this  (the 
Ju  dicature)  Act  had  not  passed,  either  unconditionally 
or  on  any  terms  or  condition,  may  be  relied  on  by 
way  of  defence  thereto."  The  remainder  of  the 
subsection  provides  for  stay  of  proceedings  by 
application  to  the  Court  in  which  they  are  pend- 
ing.{6) 

Since  the  Judicature  Act  passed,  one  division 
of  the  High  Court  has  no  jurisdiction  to  grant  an 
injunction  to  restrain  proceedings  in  another  (with 
some  exceptions  to  be  mentioned),  (c) and  the  Chancery 
Division  cannot  even  continue  an  inj  unction  granted 
before  the  commencement  of  the  Judicature  Act;(cZ) 
and  on  such  an  application  being  made,  the  Court 
directed  the  cause  to  stand  over  to  await  the  trial 
of  the  action  at  law,  with  liberty  to  the  plaintiff  in 
the  injunction  suit  to  apply  as  he  might  be  advised 
to  the  Common  Law  Division,  intimating  that  if  it 
should  direct  a  transfer  of  the  action  to  the 
Chancery  Division,  the  Judge  of  the  latter  would 
not  object  to  try  it. 

In  one  case  reported  in  the  High  Court  of  Justice 
an  injunction  is  stated  to  have  been  gi-anted  by  the 
Chancery  Division  at  the  suit  of  a  married  woman 
to  restrain  a  sheriff  and  parties  from  removing  or 
selling  furniture  under  an  execution  in  an  action  at 
law  against  her  husband,  the  furniture  being  pur- 
chased out  of  her  savings  while  living  separate  from 
her  husband,  and  although  an  interpleader  summons 
was  pending,  (e) 
Exceptions      (260.)  Notwithstanding   the    generality   of  the 

to  thia  ^  ^  ,  »  '^    ..  *      , .  . 

provision,    enactment  that  no  cause  or  proceeding  pending  in 

(6)  Vide  infra,  (267).  (c)  Vide  infra,  (.201). 

id)  Edwards  v.  Noble,  24  W.  R.,  3!)0;  W.  N.,  187G,  81,  V.  C.  B. 

(e;  Marston  v.  Smith,  W.  N.,  1877;  169,  V.  C.  H. 


INJUNCTIONS   FROM   COURT   OF   BANKRUPTCY.  215 

the  High   Court  shall  be  restrained  by  injunction,    Equitable 
its  application  has  been  limited  to  injunctions  from      iim  of 
the  High  Court  of  Justice,  and  it  is  not  to  be  under-  "•^'"'^^"^"' 
stood  as  interfering  with  the  special  powers  of  other 
Courts,  ex.  gr.,  the  Court  of  Bankruptcy  or  Courts 
of  Equity  in  England  as  regards  Irish  actions,  and 
vice  versa,  or  even  the  Chancery  Division  of  the  High 
Court  itself  in  special  cases,  ex.  gr.,  under  the  Wind- 
ing-up Acts,  to  restrain  actions  pending  in  other 
divisions  of  the  High  Court. 

(26 J.)  The  special  powers  conferred  by  the  Legis-  injunctions 
lature  on  the  Court  of  Bankruptcy (/)  to  restrain  Iup"c^^"^" 
proceedings  in  any  action,  suit,  or  other  process 
agauist  a  debtor  in  respect  of  whom  a  petition  has 
been  lodged,  for  the  special  purpose  of  duly  dis- 
tributing the  assets  of  the  bankrupt,  and  on  grounds 
wholly  irrespective  of  the  merits  of  the  action,  have 
not  been  in  any  degree  affected  or  diminished  by 
the  above  provision  in  subsection  {o).{g)  Thus  it 
can  restrain  the  execution  of  a  writ  of  sequestration 
issued  from  the  Court  of  Chancery,(/i)  or  an  action 
at  law  against  the  trustee  of  the  estate  in  liquida- 
tion, (i)  and  a  County  Court  Judge  having  Bank- 
ruptcy jurisdiction  may  exercise  the  same  jurisdic- 
tion. (^')  How  far  the  Court  of  Bankruptcy (^)  can 
restrain  an  action  for  foreclosure  of  a  mortgage  pend- 
ing in  the  Chancery  Division  brought  by  a  mortgagee 

(/)  See  Bankruptcy  (Ireland)  Amendment  Act,  1872,  :io  &  36  Vic 
C.  58,  s.  68. 

iff)  See  In  re  Ditton,  L.  R.,  1  Ch.  D.  557;  24  W.  R.,  289,  A.  C; 
In  re  Collie,  L.  R.  2  Ch.  D.  51,  S.  C.  nomine ;  Ex  parte  Smith  v. 
Hopwood,  24  W.  R.  310 ;  20  Sol.  Jour.,  291,  A.  C. 

(h)  Ex  parte  Hughes.     In  re  Browne,  L.  R.,  12  Eq.,  137. 

(0  Ex  parte  Cohen.    In  re  Sparke,  L.  R.  7  Ch.  20;  Morley  v.  White, 
L.  R.  8  Ch.  214;  Domvile,  a  Bankrupt,  Ir.  Rep.  9  Eq.  456,  A.  C. 
.     (i)  See  Halliday  v.  Harris,  L.  R.  9  C.  P.  668. 

{Jc)  See  Snow  v.  Sherwell,  25  W.  R.  433,  A.  C;  and  contra,  Ex  parte 
Pennell,  25  W.  R.  433,  A.  C.  See  In  re  Lloyd,  Ex  parte,  W.  N. 
1877,  197;  21  Sol.  Jour.  748,  A.  C. 


216 


MATTER  OF  EQUITY  TO  BE  PLEADED. 


Equitable 
Dejence  in 

lieu  of 
Injunction. 


By  High 
Court  in 
England. 


Matter  of 
equity  to 
be  pleaded 


of  the  bankrupt,  seems  to  be  doubtful.  This  juris- 
diction, of  course,  is  to  be  exercised  according  to  a 
sound  discretion,  and  where  there  happens  to  be  a 
substantial  question  to  be  tried  as  to  the  validity  of 
a  composition,  it  should  refuse  to  restrain  a  creditor's 
action  against  the  trustee. (Z)  The  Court  has  no 
power  to  restrain  a  suit  or  action  to  which  the 
bankruptcy  would  not  be  any  defence  or  bar 
or  ground  of  staying  proceedings,  ex.  gr.,  to  a  suit 
in  Equity  for  repayment  of  money  obtained  by 
fraud,  (m) 

(262.)  The  High  Court  of  Justice  in  England  may 
o-rant  an  injunction  against  proceedings  in  the  Court 
of  Chancery  in  Ireland,  and  give  liberty  to  serve 
the  order  in  Ireland ;  and  conversely,  the  High 
Court  of  Justice  in  Ireland  can  restrain  a  party 
from  proceedings  in  England. (7t)  So  an  injunction 
has  been  granted  by  the  Chancery  Division  in 
England  under  the  Companies  Act  to  restrain  a  suit 
or  action  in  Ireland.(o) 

(263.)  As  one  (and  the  principal)  substitute  for  the 
power  of  restraining  causes  and  proceedings  pending 
in  the  High  Court  of  Justice  by  injunction  on  equit- 
able grounds, the  subsection  (5)  provides  "that  every 
matter  of  equity  on  which  an  injunction  against  the 
prosecution  of  such  cause  or  matter  might  have 
been  obtained  either  unconditionally  or  on  any  terms 
or  conditions,  may  be  relied  on  by  way  of  defence 
thcreto.'Xl?)  This  subsection  (5)  seems  to  deal  with 
equitable  defences  to  legal  claims,  which  formerly 
were  put  forward  by  Bill  in  Equity  for  an  injunction 
to  restrain  further  prosecution  of  the  action  at  law, 

(I)  See  In  re  Lopes,  25  W.  K.  41'J,  A.C. 
(m)  Ex  parte  Coker,  L.  R.  lO  Ch.  652 ;  24  W.  K.  145,  L.  J.J. 
(»)  Eustace  v.  Lloyd,  W.  N.  187G,  299;  25  W.  R.  211,  V.  C.  B. 
(o)  In  re  International  Pulp  and  Paper  Co.,  L.  R.  3  Ch.  D.  594, 
M.  K. 

(/>)  J.  A.,  1877,  8.27,  subs.  (5). 


MATTER    OF    EQUITY   PLEADED.  217 

as  subsection  (2)  seems  to  apply  to  equitable  defences  Equitable 
to  equitable  claims,  which  were  formerly  for  the     ueuof 
the  most  part  made  by  way  of  cross  bill.  njuntwn. 

By  the  Common  Law  Procedure  Act,  1856,((2)  the 
defence  to  actions  at  law  on  equitable  grounds  was 
practically  limited  to  the  small  class  of  cases  in 
which  a  Court  of  Equity  would  have  granted  an 
injunction  absolutely  and  unfettered  by  conditions, 
and  final  in  its  character,  so  as  to  leave  nothing  to 
be  done  after  the  order  was  made,  ex.  gr.,  to  take 
an  iicccount.(r)  This  was  unavoidable  so  long  as 
Courts  of  Law  were  incapable  of  adapting  their 
simple  unvarying  form  of  judgment  so  as  to  adjust 
the  equities  between  the  parties,  and  while  doing 
equity  to  the  defendant  not  to  disregard  the 
countervailing  equities  of  the  plaintiff,  (s)  For  ex- 
ample, where  an  executrix  was  sued  on  a  promissory 
note  made  and  given  by  herself,  a  defence  that  the 
note  had  been  drawn  by  mistake  to  charge  her 
personally,  it  being  the  intention  that  the  testator's 
assets  alone  should  be  charged,  was  deemed  inad- 
missible because  a  Court  of  Equity  would  not  in 
such  a  case  have  given  an  injunction  absolutely,  but 
on  terms,  such  as  that  the  defendant  should  give  a 
new  note  charging  her  as  executrix  in  her  represen- 
tative capacity.  (^J 

Now  the  High  Court  of  Justice  is  competent,  in 
every  division  of  it  to  pronounce  a  conditional  or 
qualified  judgment  and  to  impose  terms,  such  as 
may  be  just,  so  as  to  give  due  effect  and  no  more,  to 
the  equity  set  up  by  way  of  defence  to  a  legal  claim. 

(5)  16  &  17  Vic,  c.  113,  s.  85. 

(r)  See  Cochrane  v.  Camack,  7  Ir.  C.  L.  R.  10 

(s)  See  Turner  v.  M'Auley,  6  Ir.  C.  L.  R.  245,  Q.  B. ;  Daniel  v. 
M'Carthy,  7  Ir.  C.  L.  R.  23,  Q.  B. ;  ColUs  v.  Prendergast,  7  Ir.  C.  L.  R. 
542,  Q.  B. 

(0  M'GiUicuddy  v.  Galway,  Ir.  Rep.  2  C.  L.  237,  C.  P. 

L 


218  MATTER   OF   EQUITY   PLEADED. 

Equitable  Thus  to  an  ej ectment  brought  b}^  a  m ortgagee  against 
Veu  of  his  mortgager,  the  Court  can  give  effect  to  a  defence 
Injunction.  ^^^^^-^^^^  q^  \^\^q  Equity  of  redemption,  on  condition 
that  the  defendant,  the  mortgagee,  shall  bring 
into  Court  the  debt  and  interest  due. (it)  And 
where  an  action  is  brought  on  a  bill  of  exchange 
and  the  defendant  relies  on  a  parol  agreement  for 
value,  not  to  sue,  instead  of  applying  for  an  injunc- 
tion to  stay  the  action,  he  should  plead  the  equitable 
defence  or  file  a  counter-action  for  specific  perfor- 
mance of  the  agreement.(v)  In  an  action  for  rent 
onanindenture  of  lease,  where  the  defendant  relies  on 
an  Equity  to  have  the  lease  set  aside  or  cancelled, 
on  the  g-round  of  concealment  of  material  facts 
affecting  the  title  to  part  of  the  premises,  the  Com- 
mon Law  Division  in  which  the  action  may  be 
pending  is  bound  to  give  effect  to  the  Equity  so  far 
as  it  is  incidental  to  the  purposes  of  the  defence, 
and  though  it  may  not  cancel  the  lease  so  as  to 
destroy  its  Q&Qci  in  fiituro  or  in  omnibus,  it  may 
treat  it  as  if  cancelled  for  the  purpose  of  the 
action.('w;)  So  again  the  defendant  may  set  up  by 
way  of  defence  a  case  which  Avould  entitle  him  in 
the  Chancery  Division  to  have  the  lease  reformed 
and  rectified,  and  the  Common  Law  Division  though 
it  will  not  usually  reform  the  deed,  nor  in  any  case 
do  so  without  a  counterclaim  to  that  effect  properly 
pleaded,  yet  may  give  effect  to  the  defence  as  an 
answer  to  the  action,  and  where  the  case  for  refor- 
mation is  not  denied,  read  the  deed  is  as  if  it  were 
duly  reformed. («) 

(«)  See  Hanbury  v.  Noone,  W.  N.  1875,  2fi0,  20  Sol.  Jour.  IGl, 
Huddlestone,  B. 

(i;.)  See  Garbutt  v.  Fancus,  L.  R.  1  Ch.  D    lot,  24  W.  R.  89  A.  C. 

(w)  Mostj-n  V.  West  Mostyn,  Coal  and  Iron  Company,  L.  R.  C.  P.  D. 
145,24  W.  R.  401. 

(x;  Mostyn  f.  West  Mostyn,  Coal  and  Iron  Company,  ubi  supra. 


STAY   OF   PROCEEDINGS.  219 

After  judgment  in  ejectment  recovered  before  the    EquitaUe 
Judicature  Act  came  into  force,  on  a  forfeiture  of  a     ueu  of 
lease  for  breach  of  covenant  to  repair,  where  the   'y^^^"- 
plaintiff  had  led  the  defendant  to  suppose  he  would 
not  take   advantage  of  the   non-performance   for 
covenant,  the    Court    of  Appeal   (affirmed  by  the 
House  of  Lords)  stayed  the  execution  of  the  judg- 
ment on  equitable  grounds.     Some  of  the  Judges 
doubted  whether  the  application  was  not  too  late 
after  judgment,   but  inasmuch    as    under   the    old 
system  this  defence  was  not  available  in  the  action 
of  ejectment,  they  gave  the  defendant  the  benefit  of 
it  on  summary  application. (i/)     Henceforth  such  a 
case  should  be  made  by  pleading   the   matter  of 
Equity  as  a  defence. 


CHAPTER  XXVIII. 

Stay  of  Proceedings. 

Section  27,  Subsection  (5.) 


264.  Application  to  stay,  p.  219. 

265.  Proper  Court  to  apply  to,  220. 


(264.)  By  way   of  a  second  substitute  for    the  Appiica- 
remedy  by  way  of  injunction,  subsection  (5)  of  sec-  stay  ofpro- 
tion  27(a)  makes  the  following  proviso: — "Provided  *'^^*^'^ss. 
always,  that  nothing  in  this  (the  Judicature)  Act  con- 
tained shall  disable  either  of  the  said  Courts  {i.e.,  the 
High  Court  of  Justice  or  the  Court  of  Appeal)  from 
directing  a  stay  of  proceedings  in  any  cause  or  matter 
pending  before  it  if  it  shall  think  fit ;  and  any  person, 
whether  a  party  or  not  to  any  such  cause  or  matter, 
who  would  have  been  entitled  if  the  Act  had  not 
passed,  to  apply  to  any  Court  to  restrain  the  prose- 
cution thereof,  or  who  maj^  be  entitled  to  enforce 

(y)  Hughes  v.  Metropolitan  Railway  Company,  25  W.  R,  680  H.  L. 
S.  C,  L.  R.  1  C.  P.  D.  120 ;  24  W.  R.  652,  A.  C. 

(a)  J.  A.  1877,  s.  27,  subs.  (.5),  §  3,  J.  A.  1873,  s.  24,  sub.  5. 

l2 


220  PROPER  COURT  TO  APPLY  TO, 

Stay  of  by  attachment  or  otherwise,  any  judgment,  decree, 
''  — !  ^  ■  rule  or  order,  contrary  to  which  all  or  any  part  o\ 
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  purpose  of  justice  ;  and  the  Court  shall  thereupon 
make  such  order  as  shall  be  just." (6) 
Proper  (265.)  Much  controversy  arose  in  England  at  first 

apply  to.  as  to  the  branch  of  the  High  Court  to  which  the 
application  to  stay  proceedings  should  be  ad- 
dressed, under  this  proviso,  at  least  in  one  class  of 
cases,  namely,  winding  up  matters ;  i.e.  where  an 
order  had  been  made  for  winding  up  the  affairs  of  a 
company,  whether  the  application  to  stay  proceed- 
ings in  an  action  in  a  Common  Law  Division,  should 
be  made  to  that  Division  or  to  the  Judge  of  the 
Chancery  Division,  to  whose  Court  the  winding  up 
matter  was  attached.  The  Master  of  the  Kolls(c)  and 
the  Queen's  Bench  Division((Z)  both  considered  the 
application  would  be  more  appropriate  to  the  par- 
ticular Court  or  Division  in  which  the  action  was 
pending.  The  Common  Pleas  Division  took  an 
opposite  view(e),  and  the  Court  of  Appeal  held  that, 
although  in  all  other  cases  it  would  be  against  the 
letter  and  the  spirit  of  the  Judicature  Act,  that  one 
Division  should  stay  or  enjoin  proceedings  in 
another,  yet  from  the  special  terms  of  the  winding- 
up  statutes,  this  jurisdiction  was  attached  to  and 
more  conveniently  exercised  by  the  Vice-(Jliancellor 

(i)  J.  A.  1877,  s.  27,  subs.  (5),  J.  A.  1873,  s.  2-i,  subs.  (.j). 

(c)  People's  Garden  Co.,  L.  R.  1  Ch.  D.  44;  24  W.R.  40  M.  R. 
Kingchurch  v.  People's  Garden  Co.,  L.  R.  1  Ch.  D,  4rj  M.  R. 

{(l)  Walker  v.  Ranagher  Distillery  Co.,  L.  R.  I,  Q.  B.  D.  129. 

(e)  Kingchurch  v.  People's  Garden  Co.,  L.  R.  1  C.  P.  D.  45;  24 
W.  R.  41. 


PROPER  COURT  TO  APPLY  TO.  221 

or  Master  of  the  Rolls,  it  being  unconnected  with    stay  of 

.   ,  .  ,      .     Proceedings 

the  merits  of  the  case  and  more  wit  am  their  — 
cognizance,  whether  it  was  expedient  to  have  a 
double  litigation  proceeding  or  not,(/)  and  that  they 
may  therefore  restrain  an  action  or  suit  in  any  of 
the  Common  Law  Divisions  or  in  the  Admiralty((/) 
and  in  any  part  of  the  United  Kingdom,  (/i)  It 
was  doubted  whether  the  jurisdiction  extended  to 
matters  of  voluntary  winding  up  or  liquidation. (i) 
But  the  doubt  seems  to  have  been  closed  by  the 
English  Ord.  li.  Rule  2a.  of  June,  1870,  which 
enables  the  Judge  of  the  Chancery  Division  in 
which  a  winding  up  order  or  an  order  for  adminis- 
tration of  assets  is  pending,  to  order  the  transfer  to 
himself  of  any  action  pending  in  another  division. 
It  has  not  been  settled  whether  a  Judge  of  the 
Chancery  Division,  acting  in  a  petition  matter  under 
the  Solicitor's  Act,  and  making  an  order  for  taxation 
of  costs,  has  authority  now  to  stay  an  action  in 
a  Common  Law  Division  in  respect  of  these  costs  as 
he  formerly  had.  It  was  stated  that  the  Master  of 
the  RoUs  (Sir  Geo.  Jessell)  said,  he  had  now  no 
power  to  stay  proceedings  at  Common  Law.  Mr. 
Justice  Lush  thought  that  whatever  Division  of  the 
Court  made  the  order  for  taxation,  that  Division 

(/■)  Garbutt  v.  Fancus,  L.  R.  1  Ch.  D.  154 ;  24  W.  R.  89  A.C.  See 
Tn  re  Stapleford  Colliery  Co.,  24  W.  R.  175,  W.  N.  1875,  256,  20  Sol. 
Jour.,  132,  V.  C.  B. 

(ff)  AustraUan  Steam  Navigation  Co.,  L.  R.  20  Eq.  325  M.  R. 

(h)  In  re  International  Paper  and  Pulp  Co.,  24  W.  R.  535,  W.N. 

1876,  151  M.  R. 

(0  Moore  v.  QMy  and  County  Bank,  W.  N.  1875,  240  Quain,  J. ; 
Owens  V.  Steam  Coal  Co.,  W.  N.  1876,  9  Quain  J.,  but  see  Needhamu. 
Rivers  Protection  Co  ,  L.  R.  1  Cii.  D.  253;  24  W.  R.  317,  V.  C.  M. 
•where  this  distinction  was  not  observed,  see  Belfast  and  Ulster  Brewery 
Co.,  Ir.  Rep.  7  Eq.  441,  M.  R.  In  re  Poole  v.  Fire  Brick  Clay  Co., 
L.  R.  18  Eq.,  542.     See  South  of  France  Potteries  Syndicate,  W.  N. 

1877,  205,  21  Sol.  Jour.,  768,  A.  C,  action  against  a  surety  for  con- 
tributory not  restrained. 


222  LEGAL   RIGHTS  RECOGNISED. 

f^tay  of    should  restrain  the  action,  such  an  order  not  beinor 

Proceedings,  ...  i  •  i  •       i  .  „ 

an  injunction  order  withm  the  meaning  of  suKsection 

5,  but  part  of  the  order  to  tax.fj)  However,  in  a 
later  case  Mr.  Justice  Lindley  made  such  an  order 
at  Chambers  to  stay  an  action  after  a  summons  had 
been  taken  out  at  the  Rolls  for  an  order  to  tax.(/i;) 

It  seems  to  have  been  held  that  a  mort^asree 
seeking  to  enforce  his  mortgage  is  not  to  be  stayed, 
because  of  a  winding  up  under  the  Companies 
Act.(Z) 


CHAPTER  XXIX. 

Legal  Rights. 

Section  27,  Subsection  (6.) 

266.  Legal  Estates  and  Rights  to  be  recognised,  p. ! 


Legal  (266.)  The  6th  subsection  of  section  27(a)  is  as 

estates  and        ^  ^  r^    t  •  i  n  -i  •• 

rights  to  be  follows  : — "  Subject  to  the  aforesaid  provisions  for 
°  *  giving  effect  to  equitable  rights  and  other  matters 
of  equity  in  manner  aforesaid,  and  to  the  other  ex- 
press provisions  of  this  (the  Judicature)  Act,  the  said 
Courts  {i.e.  the  High  Court  of  Justice  and  the  Court 
of  Appeal)  respectively,  and  every  Judge  thereof, 
shall  recognise  and  give  effect  to  all  legal  claims  and 
demands,  and  all  estates,  titles,  rights,  duties,  obli- 
gations, and  liabilities,  existing  by  the  Common  Law 
or  by  any  custom,  or  created  by  any  statute,  in  the 
same  manner  as  the  same  would  have  recognised  and 
given  effect  to,  if  this  (the  Judicature)  Act  had  not 
passed,  by  any  of  the  Courts  whose  jurisdiction  is 
hereby  transfeired  to  the  High  Court  of  Justice." 
This  seems  to  be  equivalent  to  saying,  that  while 

(/)  Anon.  20  Sol.  Jour.  32. 
(k)  Anon.  W.  N.  1876,  a!>. 

(0  Sec  Inre  D.  Lloyd  and  Co.,  21  Sol.  Jour.  74S;  W.  N.  1877,  197 
A.C.  andffn<e(261). 

(a)  J.  A.,  1877,  3.  27,  subs.  (6);  J.  A.,  187:'.,  ?.  24. 


PLEXARY   RELIEF.  223 

the  e'ivino-  effect  to  equitable  riohts  is  to  be  the      Legal 

&  C3  -1-  o  _  Bifjlttx. 

paramount  duty  of  the  Judges  of  the  Hight  Court,  - — ' 
and  while  rules  of  equity  are  to  prevail  over  and 
supersede  the  Eules  of  Law  where  they  happen  to 
conflict  in  their  application  to  the  same  subject- 
matter,  and  subject  thereto,  they  are  to  follow 
the  practice  of  former  Courts  of  Equity,  which  while 
breaking  in  upon  the  Common  Law,  where  necessity 
or  good  conscience  required  it,  not  only  recognised 
but  protected  all  legal  claims  and  titles,  estates  and 
duties,  as,  for  example,  they  protected  the  marital 
right  of  the  husband  from  a  conveyance  made  in 
fraud  of  it  and  followed  the  analogy  of  the  law  in  a 
variety  of  ways,  especially  in  the  devolution  of 
estates  created  by  way  of  trusts  executed.  They 
further  allowed  possession  of  the  legal  estate,  a 
superior  force  and  value  as  between  titles  and  claims 
purely  equitable,  giving  to  the  holder  of  it  preference 
over  the  person  who  had  an  equal  and  even  an 
earlier  equitable,  title.(6) 


CHAPTER    XXX. 
Plenary  Relief. 

Section  27,  Subsection  (7.) 


267.  All  matters  in  controversy  to  be  disposed  of,  p.  223. 

268.  Plenary  relief  between  all  parties  interested,  224. 

269.  Controversy  to  be  single,  225. 

270.  Court  may  deal  with  the  whole  matter,  225. 

271.  Relief  must  be  properly  claimed,  226. 


(267.)  Subsection  7  of  section  27(rt)is  as  follows: —  court  to 
"The  High  Court  of  Justice  and  the  Court  of  Appeal  aiT matters 
respectively,   in  the   exercise   of    the    jurisdiction  trov°e"sy. 
vested  in  them  by  this  (the  Judicature)  Act,  in  every 

(6)  See  Rooper  v.  Harrison,  2  Kay  and  J.  at  pp.  108,  109,  per  V.  C. 
Sir  Page  Wood. 

(a)  J.  A.,  1877,  s  27,  subs.  (7) ;  J.  A.,  1873,  s.  24,  subs.  (7). 


224 


PLENARY  RELIEF   BETWEEN  ALL   PARTIES. 


Plenary 
Relief. 


Plenary 
relief 
between 
all  parties 
interested. 


cause  or  matter  pending  before  them  respectively, 
shall  have  power  to  grant,  AND  shall  grant,  either 
absolutely  or  in  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  irro-pevly  brought  fonvard  by 
them  respectively  in  such  cause  or  matter,  so  that, 
as  far  as  possible,  all  matters  in  controversy  between 
the  said  parties  respectively  may  be  completely  and 
finally  determined,  and  all  multif)licity  of  legal  pro- 
ceedings concerning  any  such  matters  avoided." 

By  somewhat  of  a  legal  hyperbole  it  has  been 
said,  "  If  the  closing  words  of  this  section  be  verified 
by  experience,  this  Act  will  prove  a  second  Magna 
Charta  to  the  suitor.(6) 

(268.)  It  w^as  a  cardinal  principle  of  Chancery 
Procedure,  as  exemplified  in  what  was  termed 
distinctively  the  "  plenary  suit,"  to  deal  with  the 
entire  controversy  or  matter  which  formed  the  sub- 
ject of  the  suit  as  a  whole,  and  to  endeavour  to  do 
complete  and  exhaustive  justice  with  respect  to 
every  part  of  it ;  and  in  order  to  this  it  requii-ed 
that  everybody  who  was  interested  in  the  subject- 
matter  should  be  before  the  Court,  either  individu- 
ally or  by  a  suitable  representation  of  his  class  or 
interest.  Similarly,  the  High  Court  is  enabled  by 
one  of  the  scheduled  rules (c)  at  any  stage  of  the  pro- 
ceedings, and  either  upon  or  without  the  application 
of  either  party,  to  order  that  the  name  or  names  of 
any  party  or  parties,  wdiether  plaintiffs  or  defend- 
ants, who  ought  to  have  been  joined,  or  whose 
presence  before  the  Court  may  be  necessary  in  order 
to  enable  the  Court  efiectually  and  completely  to 


(i)  Mr.  Charley's  Judicature  Acts,  p.  o\. 
(c)  Schedule,  rule  I'J. 


MULTIFARIOUS   RELIEF.  225 

adjudicate  upon  and  settle  all  the  questions  involved  Plenary 
in  the  action,  may  be  added."  By  another  of  the  rules  ^'^ ' 
in  the  same  schedule,  the  Chancery  plan  is  adopted, 
by  which  numerous  parties  having  the  same  interest 
in  the  action  might  be  represented  by  one  or  more  of 
them  suing  or  defending  the  action  on  behalf  of  or 
for  the  benefit  of  all  parties  so  interested. (c^) 

269.  It  was  another  rule  of  Equity  procedure  that  Contro- 
the  suit  should  be  confined  to  one  entire  contro-  single. 
versy,  and  the  combination  of  several  distinct  and 
separate  controversies  in  one  suit  was  open  to  the 
objection  (at  one  time  fatal)  of  multifariousness,  or 
the  misjoinder  of  controversies  or  matters  of  litiga- 
tion in  which  some  of  the  defendants  only  were 
interested.  On  the  other  hand,  in  actions  at  law 
considerable  latitude  was  allowed  as  to  the  joinder 
of  distinct  causes  of  action,  provided  the  parties  to 
the  claims  were  in  all  cases  the  same, 

(270.)  In  common  law  actions,  as  regards  each  Court  may 
matter  of  controversy,  the  Court  could  only  whole 
dispose  of  the  claim  of  the  particular  plaintiff  "^^"^'^' 
as  against  the  particular  defendant,  whether 
it  were  for  a  debt  or  for  damages  or  for 
title  to  land,  without  attempting  to  settle  col- 
lateral or  consequential  claims,  rights,  or  duties,  or 
even  mutual  claims  arising  out  of  the  same  trans- 
actions, except  by  way  of  set-ofF.  Indeed,  the 
simple  form  of  judgment  which  a  court  of  law  was 
obliged  to  pronounce  either  for  the  plaintiff  or  for 
defendant,  absolute  and  without  quahfication  or 
condition,  and  founded  mostly  on  simple  issues 
answered  in  the  affirmative  or  negative  by  a  jury, 
rendered  it  impossible  fairly  to  adjust  complex 
rights  or  to  admeasure  justice  in  exact  accordance 
with  the  requirements  of  equity.     The  High  Court 

{d)  Schedule,  rule  20. 

L.3 


22fi 


COURT   TO   DEAL   WITH   WHOLE   MATTER. 


rienarrj 
Relief. 


Belief 
must  be 
properly 
claimed. 


of  Justice,  however,  as  now  constituted,  may, 
in  every  action,  when  so  required,  enforce  a  par- 
ticular claim  against  a  particular  person  abso- 
lutely or,  s^ib  modo,  on  such  reasonable  terms 
and  conditions  as  shall  seem  just;  and  it  may, 
if  so  required,  deal  with  the  whole  matter 
out  of  which  the  claim  arises,  and  settle  the 
rights  of  all  parties  concerned,  that  not  only  the 
controversy  between  the  original  parties  may  be 
finally  determined,  but  also  all  multiplicity  of  legal 
proceedings  concerning  any  of  the  questions  in 
the  action  may  be  avoided.  With  this  view  the  right 
is  given  to  combine  in  one  action,  by  way  of  counter- 
claim, what  would  formerly  have  been  the  subject 
of  two  or  more  suits,  deciding,  once  for  all,  several 
matters  in  controversy  between  the  same  parties, 
and  even  introducing  third  persons,  strangers  to  the 
suit,  where  the  relief  is  reasonably  connected  with 
the  original  subject  of  the  claim.(e) 

(271.)  It  was  scarcely  intended  that  the  High 
Court  of  Justice,  in  the  exercise  of  the  plenary 
and  almost  universal  jurisdiction  with  which  it  is 
vested,  "  to  grant  all  such  remedies  whatsoever  to 
which  any  of  the  parties  to  the  suit  may  be  entitled 
to  in  respect  of  every  legal  and  equitable  claim," 
should  do  so  without  regard  to  the  appropriate  form 
of  the  proceeding.  The  requisition  itself  is  governed 
by  the  words,  "  properly  brought  forward  by  them 
respectively." 


(e)    ric/e  ante  (243),  p.  IDG. 


PART  V. 


AMENDMENT  AND  DECLARATION  OF  LAW. 

Section  28. 


Chapter    XXXI. — Administration  of  Insolvent  Assets. 

XXXII. — Express   Trusts  and  Statute  of  Limita- 
tions. 

XXXIII. — Equitable  Waste. 

XXXIV. — Merger  of  Estates. 

XXXV. — Possessory  Actions  by  Mortgagors. 

XXXVI. — Assignment  of  Choses  in  Action. 

XXXVII. — Stipulations  not  of  the  essence  of  Con- 
tracts. 

XXXVIII. — Mandamus  and  Injunction. 

XXXIX.— Receivers. 

XL. — Damages  for  Collision  at  Sea. 

XLI. — Infant's  Custody  and  Education. 

XLII. — General  Prevalence  of  Equity. 


[     228     ] 


CHAPTER  XXXI. 

Administration  of  Assets  of  Insolvent 

Estates. 

Section  28,  Subsection  (1.) 

272.  Amendment  of  Law,  section  28,  p.  228. 

273.  Rule  in  Bankruptcy  to  prevail,  228. 

274.  Former  rule  in  Chancery,  229. 

275.  Act  not  retrospective,  230. 

276.  Debts  and  Liabilities,  what  are,  230. 

277.  Secured  creditors,  230. 


Amend-  (272.)  The  Judicature  Act,  1877,  section   28,(a) 

law  for  all  rccitcs  that  "  it  is  expedient  to  take  occasion  of  the 
union  of  the  several  Courts  whose  jurisdiction  is 
(hereby)  transferred  to  the  High  Court  of  Justice  to 
amend,  and  declare  the  law  to  be  hereafter  adminis- 
tered in  Ireland"  in  certain  matters  enumerated 
under  ten  heads  or  subsections,  which  are  intended 
as  amendments  and  declarations  of  the  law,  so  as  to 
make  it  uniform  in  the  several  divisions  of  the  High 
Court  and  also  in  all  other  Courts,  inferior  or  princi- 
pal, throughout  the  kingdom,  in  which,  by  section  79, 
the  several  rules  of  law  enacted  and  declared  by  the 
Judicature  Act  shall  be  in  force  and  receive  effect 
so  far  as  the  matters  to  which  such  rules  relate  shall 
be  cognizable  by  such  Courts,  and  with  the  further 
object  of  reconciling  different  rules  on  the  same 
subject  where  they  conflict. 

(273.)  Subsection  (1)  of  section  28  is  as  follows  : — 
"  In  the  administration  by  the  Court  of  the  assets  of 
any  person  who  may  die  after  the  commencement  of 
this  (the  Judicature)  Act,  {i.e.,  after  the  1st  day  of 
January,  1878),  and  wdiose  estate  may  prove  to  be 
insufficient  for  the  payment  in  full  of  his  debts  and 
liabilities,  and  in  the  winding  up  of  any  company 
under  the  Companies  Acts,  18G2  and  1867, 
whose  assets  may  prove  to  be  insufficient  for  the 
payment  of  its  debts  and  liabilities  and  the  costs  of 
winding  up,  the  same  rules  shall  prevail  and  be 

(a)  J.  A.,  1877,  s.  28 ;  J.  A.,  1875,  s.  10. 


Adminis- 
tr.ation  of 
insolvent 
estates. 


SECURED   AND   UNSECURED   CREDITORS.  229 

observed  as  to  the  respective  ricrhts  of  secured  and  ^^mimstra 

....         ''<^'*  "^ 
unsecured  creditors,  and  as  to  debts  and  liabilities    insou-ent 

provable,  and  as  to  the  valuation  of  annuities  and  — 
future  or  contingent  liabilities  respectively,  as  may 
be  in  force  for  the  time  being  under  the  law  of  bank- 
ruptcy with  respect  to  the  estates  of  persons  ad- 
judged bankrupts  in  Ireland,  and  all  persons  who, 
in  any  such  case,  would  be  entitled  to  prove  for  and 
receive  dividends  out  of  the  estate  of  any  such 
deceased  person,  or  out  of  the  assets  of  any  such 
company,  may  come  in  under  the  decree  or  order  for 
the  administration  of  such  estate,  or  under  the 
winding-up  of  such  company,  and  make  such  claims 
against  the  same  as  they  may  respectively  be  entitled 
to  by  virtue  of  this  (the  Judicature)  Act."  (6) 

(274.)  According  to  the  rule  adopted  by  the  Court  Former 
of  Chancery  both  in  England  and  in  Ireland  (c)  and  chancery, 
followed  by  the  Landed  Estates  Court  in  Ireland,  (d) 
a  creditor  of  an  insolvent  estate,  whose  debt 
appeared  to  be  secured  either  by  way  of  mortgage 
or  lien,  might  fu-st  prove  for  and  receive  a  dividend 
out  of  the  general  assets  in  common  with  other 
unsecured  creditors  on  the  full  amount  of  his  debt, 
and  afterwards  realize  his  security  for  the  unpaid 
balance,  handing  over  the  surplus  (if  any)  after  pay- 
ment of  his  demand,  for  the  benefit  of  the  unsecured 
creditors.  A  similar  rule  was  applied  by  the  Court 
of  Chancery  in  respect  to  the  assets  of  insolvent 
companies  administered  under  the  Winding-up 
Acts;  the  secured  creditor,  by  taking  a  dividend  in 
common  with  the  unsecured  creditors,  did  not  waive 
the  benefit  of  his  security,  (e) 

In  Bankruptcy  the  secured  creditor  was  bound  to 

(6)  J.  A.,  1877,  s.  28,  subs.  (1);  J.  A.,  1875,  s.  10,  subs.  (1). 

(c)  See  ]\Iason  v.  Bogg,  2  Mylne  and  Cr.  443 ;  Fottrell  v.  Kavanagh ; 
Ir.  Rep.  10  Eq.  256,  V.  C. 

(d)  In  re  Rooney's  Estate,  Ir.  Rep.,  9  Eq.,  204,  L.  E.  Ct. 

(e)  Kellock's  Estate,  L.  R.,  3  Ch.  769.     See  Fottrell  v.  Kavanagh, 
uiii  supra. 


230 


ENACTMENT   NOT   RETROSPECTIVE. 


Administra- 

fion  of 

Insolvent 

Estates. 


Act  not  re- 
trospective. 


Debts  and 
liabilities, 
what  are. 


Pecured 
creditors. 


elect  between  resting  on  his  security  and  being 
excluded  from  dividend,  or  giving  up  the  security 
and  having  it  valued  or  realized  and  taking  his 
share  of  the  general  assets,(/)  but  he  was  not 
called  upon  to  make  the  election  until  the  time 
came  for  proving  his  debt.((7) 

(275.)  The  analogous  provision  in  the  English  Act, 
has  been  held  not  to  have  a  retrospective  operation, 
and  that  it  does  not  withdraw  the  benefit  of  the  old 
Chancery  Rule  from  a  secured  creditor  in  a  winding- 
up  case  where  he  had  sent  in  his  claim  for  the  full 
amount  before  the  Act  came  into  operation. (/i) 

(276.)  The  expression,  "  debts  and  liabilities,"  is  not 
defined  or  expanded  by  the  Judicature  Act  as  it  is 
in  the  English  Bankruptcy  Act.  (i)  However,  it  has 
been  held  that  it  does  not  comprise  obligations  of  a 
company  in  liquidation  arising  under  covenants  in 
a  lease  before  breach  has  taken  place,  ex.  gr.,  not  to 
assign  without  consent,  (j) 

(277.)  Neitheris  the  expression,"  secured  creditors," 
defined  by  the  Judicature  Acts.  It  is  defined  in 
both  the  English  and  Irish  Bankruptcy  Acts  thus — 
"  Any  creditor  holding  any  mortgage  charge  or  lien 
on  the  bankrupt's(/v)  estate  or  any  part  thereof  as 
security  for  a  debt  to  him."(0 

A  creditor  having  executed  an  execution  by  seizure 
under  a  ji  fa,  before  an  act  of  Bankruptcy  was  held 
to  be  a  secured  creditor,  so  far  that  he  might  realize 
his  debt.(m) 

(/)  In  re  Carmarthen  Anthracite  Coal  Co.,  2-i  W.  R.,  109,  ]M.  R. 

{g)  S.  C,  and  see  ex  parte  Hodgekinson,  W.  N.,  1876,  57,  Bey. 

(/t)  III  re  Joseph  Suche  and  Co.,  Limited,  L.  R.,  1  Ch.  D.  48;  24 
W.  R.,  184;  20  Sol.  Jour.  92,  M.  R.  In  re  Phoenix  Bessemer  Steel 
Co.,  24  W.  R.  19;  W.  N.,  1875,  187. 

(i)  It  is  not  defined  in  the  Irish  Bankruptcy  Act. 

(?)  Westbourne  Grove  Drapery  Co.,  L.  R.  5  Ch.  D.  218,  V.  C.  B. 

{k)  "  Debtors'  "  Estate  in  Iri.sh  Act. 

t,J)  Bankruptcy  Act  (England),  18G9,  s.  IG,  subs.  5  ;  Bankruptcy 
(Ireland)  Amendment  Act,  1872,  s.  4. 

(m)  ^xijarte Rocke;  /nre Hall,  L.  i;.,CCh.,atp.SOO,perMellish,L.  J. 


[     231     ] 

CHAPTER  XXXII. 

ExPKESs  Trusts  and  Statute  of  Limitations. 
Section  28,  Subsection  (2.) 

278.  Statutes  not  to  apply  to  express  trusts,  p.  231. 

279.  How  far  declaratory,  231. 

280.  For  charges  on  land,  233. 

281.  What  are  express  trusts,  234. 

282.  Real  Property  Limitation  Act, 

283.  Other  fiduciary  relations, 

284.  Doctrine  of  Laches, 


(278.)  Subsection   2  of  section  28(«)  is  as  fol- statute  of 

1  Limitations 

lows  :  not  to  apply 

"  No  claim  of  a  cestui  que  trust  against  his  JrustT"^*^*^ 
trustee  for  any  property  held  on  an  express  trust,  or 
in  respect  of  any  breach  of  such  trust,  shall  be  held 
to  be  barred  by  any  Statute  of  Limitations.  This 
provision,  however,  is  not  to  affect  the  enactments 
contained  in  the  10th  section  of  the  Real  Property 
Limitation  Act,  1874,(6)  when  the  same  shall  come 
into  effect." 

(279.)  Sir  George  Jessel,  M.R.,  is  reported  to  say.  How  far 
"  All  the  other  subsections  of  the  Act   relate  to  decStory 
alterations  in  the  law,  except  the  second,  which  is 
declaratory  of  the  law  as  it  existed  before."(c)     The  as  to 
statute  is  certainly  declaratory  as  regards  claims  of  fn°iand^ 
a  cestui  que  trust  against  bis  trustee  himself,  for 
property  in  the  nature  of  real  estate,  includingtherein 
leaseholds  and  the  incorporeal  hereditament  called 
rent,  held  by  the  trustee  upon  an  express  trust. 
The  claim  was  not  barred  by  any  statute  of  limi- 
tation so  long  as  the  property   continued  in  the 
hands   of    the   trustee   himself,   or   of    volunteers 
deriving  under  him,  and  in  this  state  of  facts  the 

(a)  J.  A.  1877,  s.  28,  subs.  (1);  J.  A.  1875,  s.  10. 

(b)  37  &  38  Vic,  c.  57. 

(c)  In  re  Joseph  Suche  &  Co.,  L.  R.  1  Ch.  D.  48 ;  24  W.  R.  184,  20 
Sol.  Jour.,  92  M.  R. 


232  BREACHES  OF  TRUST — TRUSTEE  AND  HIS  REPRESENTATIVE. 

Express    right  to  follow  tliG  property  was  limited  only  by 
'%'atutZf  the  ordinary  rule  of  equity  as  to  stale  demands,  (c?) 
Luuitations.      r^^^  statute  3  and  4  Wm.  IV.,  c.  27,  s.   25,  intro- 
duced no  change  in  this  respect.     It  only  gave  pro- 
tection to  a  purchaser  for  valuable  consideration,  by 
limiting  the  time  within  which  any  claim  might  be 
made  against  him,  to  twenty  years  from  the  date  of 
his  conveyance  from  a  trustee  who  had  held  on  an 
express  trust ;  but  as  regards  the  trustee  himself  and 
volunteers  claiming  under  him,  the  statute,  rather 
by   the   implication   of    silence    than   by    express 
declaration,  treated  them  as  entitled  to  no  protec- 
tion other  than  such  as  the  ordinary  rules  of  equity 
mii2;ht  afford. 
As  to  The  statute  is  also  declaratory  in  respect  of  claims 

of  trust.  by  a  cestui  que  trust  against  his  trustee  himself  for 
breach  of  trust.  In  the  case  of  an  express  trust, 
lapse  of  time  was  no  answer  to  a  claim  for  an 
account  of  transactions  between  cestui  que  trust  and 
trustee,  so  long  as  the  relation  lasted  and  the  trans- 
actions were  unclosed,  or  where  the  delay  was 
attributable  to  the  trustee  himself  having  failed  to 
furnish  his  cestui  que  trust  with  the  information 
to  which  he  was  entitled. (e) 
Astorepre-  So,  as  regards  the  personal  representative  of  an 
trusft^r*^"  express  trustee,  the  Statute  of  Limitations  was  held 
in  Eno-land  to  be  no  bar  to  an  action  to  make  good 
any  loss  occasioned  by  a  breach  of  trust  to  the 
extent  of  the  assets  in  his  hands. (/)  An  opposite 
view  was  taken  by  the  Court  of  Exchequer  in 
Ireland,(f/)  and  followed  by  Lord  Chancellor  Brady  in 

{d)  See  M'Donnell  v.  White,  11  H.  L.  C.per  Lord  Westbury,  at  page 
579. 

(e)  Wedderburn  v.  Wedderburn  ;  4  Jlyl.  &  Cr.,  52. 

( /■)  Obee  V.  Bisliop,  1  DeGex,  F.  &  Jo.,  137 ;  Butler  v.  Carter,  L.  R. 
5  Eq.  27G  ;  Brittlebank  v.  Goodwin,  L.  R.  5  Eq.  54  o  ;  Woodhouse  v. 
Woodhouse,  L.  U.  8  Eq.  514;  Stone  v.  Stone,  L.  II.  5  Ch.  74. 

(y)  Dunne  v.  Doran,  13.  Ir.  Eq.  Rep.  545. 


TRUST  TERMS   FOR    CHARGES.  233 

Chancery,(/0  and  submitted  to  reluctantly  by  the    Express 

'' ^^    '  "^         *l  TruHts  and 

Master  of  the  Rolls  (Mr.  Smith),(0  and  by  the  Vice-   statute  of 
Chaneellor.(ji')     Probably  this  conflict  of  authority    "'^'J^"^- 
may  be  terminated  by  the  direct  or  indirect  effect 
of  this  subsection. 

As  third  persons  taking  a  loan  of  trust  moneys 
from  an  express  trustee,  and  having  notice  of  the 
trust,  become  themselves  trustees;  they  cannot  rely 
upon  the  Statute  of  Limitations  to  bar  the  trust.  (A;) 

(280.)  The  provision  in  section  25  of  the  statute  3  Trust  for 

^_  -    .  •         n       charges  on 

&  4  Wm.  IV.,  c.  27,  applied  m  terms  to  suits  tor  laud. 
recovery  of  the  land  and  not  for  recovery  of  charges 
on  land;  but  by  a  liberal  interpretation  of  its  meaning, 
or  by  analogy  to  its  provision,  the  same  exemption 
has  been  worked  out  as  to  trusts  for  securing  moneys 
charged  on  the  land  or  on  a  rent  in  favour  of  a  cestui 
que  trust,  as  if  his  claim  extended  to  the  land  or  rent 
itself.  {I)  Such  was  the  final  result  of  the  long  conflict 
of  authority  in  Ireland,  closed  by  the  House  of  Lords 
in  Burro wes  v.  Gore,(m)  which  settled  that  neither 
section  40  nor  section  42  of  the  statute  could  be 
apj^lied  where  there  was  an  express  trust,  to  secure 
any  particular  charge  upon  the  land.(?i)     The  only 

(Ji)  Breretou  v.  Hutchinson,  3  Ir.  Chan.  Rep.  361. 

(t)  Brereton  v.  Hutchinson,  2  Ir.  Chan.  Rep.  568. 

0")  Carroll  v-  Hargreave,  Ir.  Rep.  5  Eq.  123  V.  C. 

{k)  See  Ernest  Croysdill,  2  De  Gex.  F.  &  Jo.  at  page  1 98,  L.  J.  Turner ; 
Spickernell  v.  Hotham  Kay,  G69,  and  Bridgeman  v.  Gill,  24  Beav. 
302. 

(/)  See  Lord  St.  Leonards  on  Real  Property  Statutes,  2nd  edition, 
p.  103. 

(to)  Burrowes  v.  Gore,  6  H.  L.  C.  97,  affirming  Kelly  v.  Kelly,  6  L. 
R.  N.  S.  222  Sir  M.  O'Loghlen,  1838;  Dillon  v.  Cruise,  3  Ir.  Eq. 
Rep.  70,  M.  R.  1840;  Hunt  v.  Bateman,  10  Ir.  Eq.  Rep.  360  Ex., 
184:0,  overruling  Burne  v.  Robinson,  1  D.  and  AVal.,  688  Lord  Pluu- 
kett,  1889;  Knox  v.  Kelly,  6  Ir.  Eq.  Rep.  288;  Blackburn,  M.  R. 
1844  ;  Young  v.  Wilton,  10  Ir.  Eq.  Rep.  10 ;  Smith,  M.  R. ;  Dundas  v. 
Blake,  11  Ir.  Eq.  Rep.  138  Brady,  L.  C.  1848. 

(n)  See  Thompson  v.  Eastwood,  L.  R.,  2  H.  L.  at  p.  239,  jt^r  Lord 
Cairns,  L.C. 


234;  EXPRESS   TRUSTS — WHAT   ARE. 

Express    difficulty  was  to  distinguish  between  what  was  a  mere 
.statute  of  charge  of  debts  and  what  was  a  trust  for  payment 

Limitations,     r.    ,i  ^ 

' ot  the  charge. 

What  are  (:>81.)  In  the  statute  3  &  4  VVm.  IV.,  c.  27,  s.  25, 
tr^u^tr*  and  probably  in  the  Judicature  Act,  the  words 
"express  trust"  are  used  byway  of  opposition  to 
trusts  arising  by  implication,  to  resulting  trusts  or 
trusts  by  operation  of  law.(')^)  All  trusts,  as  regards 
land  or  rent,  were  barred  by  section  24  unless  saved 
by  section  25.(o)  The  saving  of  section  25  did  not 
include  trusts  by  implication  of  law,  such  as  result- 
ino-  trusts,  nor  constructive  trusts  arising  out  of 
principles  of  equity,  such  as  holding  a  vendor  a 
trustee  for  the  purchaser  in  respect  of  balance  of 
unpaid  purchase-money,  or  a  tenant  for  life  a  trustee 
as  to  renewals  taken  by  way  of  graft.  The  definition 
most  approved  of  an  express  trustee  is  that  given  by 
Vice-Chancellor  Kindersley  in  Petre  v.  Petre,(j7)  to 
this  effect — "The  25th  section  is  confined  to  express 
trusts — that  is,  trusts  expressly  declared  b}^  a  deed  or 
a  will,  or  some  other  written  instrument ;  it  does  not 
mean  a  trust  that  is  to  be  made  out  by  circumstances. 
The  trustees  must  be  expressly  appointed  by  some 
written  instrument;  and  the  effect  is,  that  a  person 
who  is  under  some  instrument  an  express  trustee,  or 
who  derives  title  under  such  trustee  is  precluded,  how 
long  soever  he  may  have  been  in  enjoyment  of  the 
property,  from  setting  up  the  statute.  But  if  a  per- 
son has  been  in  possession,  not  being  a  trustee  under 

(«)  Dickenson  v.  Teasdale,  1  De  Gex.,  Jo.  &  Smith,  at  p.  59,  per  Lord 
Westbury,  L.C. 

(o)  Commissioners  of  Charitable  Donations  v.  Wybrants,  7  Ir.  Eq. 
Rep.,  at  p.  587,  per  Sir  Edward  Sudden,  L.C.  Perhaps  there  should  be 
added,  "or  b}'  section  20  on  the  {ground  of  concealed  fraud,"  i.e. 
''  designed  fraud  "  which  could  not  with  reasonable  diligence  be  known  to 
the  plaintiff.  See  V.  C.  Kindersley  in  Petre  v.  Petre,  1  Drewry,  at  p. 
307. 

(y))  Petre  v.  Petre,  1  Drewry,  at  p.  393. 


EXPRESS   TRUSTS — WHAT   ARE.  235 

some  instrument,  but   still  being  under   such   cir-     Express 

'  „  .  Tnists  and 

cumstances  that  the  court,  on  the  principles  of  equity,    statute  oj 

,,  .  p  Limitations. 

would  hold  him  a  trustee,  then  the  2oth  section  ot  — 
the  statute  does  not  apply,  and  if  the  possession  of 
such  a  constructive  trustee  has  continued  for  more 
than  twenty  years  he  may  set  up  the  statute  against 
the  party,  who,  but  for  lapse  of  time,  would  be  the 
right  owner."  In  Petre  v.  Petre,  the  legal  tenant  for 
life  of  a  renewable  leasehold,  it  being  in  settlement, 
took  a  renewal  in  his  own  name  without  noticing 
the  trust,  and  the  property  was  enjoyed  by  him  and 
those  deriving  under  him  for  more  than  twenty 
years  before  the  commencement  of  the  suit  by  the 
remainder  man,  and  this  was  held  to  be  a  con- 
structive trust  barred  by  the  statute  by  the  terms 
of  the  will.  It  would  seem  that  a  party  who 
becomes  an  express  trustee  of  land  under  a  will, 
remains  such  as  well  for  the  undeclared  and  result- 
ing trusts  as  for  those  expressly  set  forth  in  the 
will. (5')  The  trust  is  an  express  trust,  because  it 
arises  on  the  face  of  the  instrument  itself  and  does 
not  require  to  be  made  out  by  evidence  clehors.(r) 
In  this  sense  the  seeming  paradox  expressed  in 
Salter  v.  Cavanagh  of  an  implied  trust  being  an 
express  one  within  the  Act,  may  be  understood. (s) 

As  regards  personal  property  in  the  hands  of  an 
executor,  a  distinction  seems  to  be  taken  between 
the  general  legal  trust  which  exists  between  an 
executor  and  the  creditors  and  legatees  of  his  tes- 
tator, and  a  special  or  direct  trust  for  some  creditor 
or  legatee  in  particular.    The  former  clearly  will  not 

(2)  See  Salter  v.  Cavanagh,  1  Drury  and  Walsh,  668,^67-  Lord 
Plunkett,  at  p.  687. 

(r)  See  Commissioners  of  Charitable  Donations  v.  Wybrants,  2  Jo. 
and  L.  at  196,  7  Ir.  Eq.  Rep.  388. 

(s)  See  Dawkins  v.  Lord  Penrhyn,  26  W.  R.,  6  A.  C,  a  case  of  an 
express  trust  not  to  bar  an  estate  tail,  and  Statute  of  Limitations,  see  25. 


236  EXPRESS  TRUSTS  AS  TO  PERSONALTY. 

Express  prevent  the  bar  of  the  Statute  of  Limitations,  and  it 
statute  of  may  be  assumed  that  it  is  not  intended  by  this 
mijijans.  ^^jJ^^qq^^^qj^  ^2)  to  interfere  with  the  pre-existing  law 
on  the  subject. 

Two  eases  illustrate  the  distinction.  The  case  of 
Scott  V.  Jones,  (0  in  the  House  of  Lords,  resembled  an 
express  trust  fastened  upon  an  executor  for  creditors; 
a  fund  being  created  by  a  testator  for  payment  of 
his  debts  by  sale  of  property  which  he  supposed  to 
be  real  estate,  but  which  in  reality  was  a  chattel 
interest,  or  term  for  years.  He  vested  the  property 
in  his  executor  on  trust  to  sell  it  and  pay  his  debts. 
If  the  property  had  been  freehold,  the  statute  would 
not  have  applied,  but  being  personalty  it  was  held 
to  be  no  more  than  a  legal  trust,  like  that  of  an 
executor  for  creditors  under  ordinary  circumstances, 
and  therefore  one  that  offered  no  answer  to  the 
earlier  Statute  of  Limitations. 

On  the  other  hand,  in  Phillipo  v.  Munnings,(tt)  an 
executor,  by  severing  a  legacy  from  the  general  estate, 
and  appropriating  it  to  the  particular  purpose  pointed 
out  by  the  will,  did  the  same  as  if  he  paid  it  to  a  trustee, 
and  thereupon  he  was  no  longer  acting  as  executor 
but  as  trustee,  and  the  suit  was  regarded  not  as  for 
a  legacy,  but  to  compel  the  performance  of  a  trust. 

Neither  the  Court  of  Chancery  nor  the  Landed 
Estates  Court,  by  holding  possession  of  land  ormoney, 
the  produce  of  land  'hi  usiim  jus  habentls,  were 
considered  to  stand  in  the  relation  of  a  public 
trustee  for  tlie  parties  interested  in  the  lands  sold, 
so  as  to  arrest  the  operation  of  the  statute  or  the 
analogous  rule  as  to  limitation  to  a  creditor's 
demand  on  the  fund.(v) 

(0  See  Scott  v.  Jones,  i  CI.  &  F.  382. 
(«)  Phillipo  V.  Munnings,  2  Mylne  &  Craig,  309. 
(f)  lit  re  Nixon's  Estate,  Ir.  Kep.  9  Eq.  7  A.  C. ;    see  contra  In  re 
Colclough's  estate,  8  Ir.  Chan.  Rep.  at  page^338,i«r  L.  C.  Brady. 


REAL   PROPERTY  LIMITATION  ACT.  237 

(276.)  Questions   as   regfards   the    creation   and     Express 

\  /     ^  3  Trusts  and 

operation  of  express  trust  to  secure  charges  upon   statute  of 

,        ,  ,     ,  , .       ,  .  ,        ,    •      Limitations. 

land  or  rent,  become  comparatively  ummportant  m      — 
the  future,  in  consequence  of  the  provision  in  the  j-roperiy 
Eeal  Property  Limitation  Act,  1874,('m;)  by  which  ^J.";'"^""" 
after  the  commencement  of  the  Act,  i.e.,  1st  January, 
1879,  "  no  action,  suit,  or  other  proceeding  shall  be 
brought  to  recover  any  sum  of  money  or  legacy 
charged  upon  or  payable  out  of  any  land  or  rent  at 
law  or  in  equity,  and  secured  by  an  express  trust, 
or  to  recover  any  arrears  of  rent  or  of  interest,  ex- 
cept within  the  time  within  which  the  same  could 
be  recoverable  if  there  were  not  any  such  trust." 

Nothing  well  can  be  more  comprehensive  than 
the  language  of  this  provision,  to  destroy  every 
protection  which  an  express  trust  could  afford,  to 
preserve  a  claim  to  any  sum  of  money  or  legacy 
charged  upon  or  payable  out  of  land  or  rent,  or  any 
arrears  of  rent  or  of  interest,  from  the  ordinary 
operation  of  the  Statutes  of  Limitation  applicable  to 
the  subject,  regarded  irrespective  of  the  express 
tiTist. 

The  passage  often  cited  from  Lord  St.  Leonard's 
Essay  on  the  Real  Property  Statutes,  regarding  the 
intentions  of  the  framers  of  the  Statute  of  Limitation, 
8&4  Wm.IV.,c.  27, as  regards  charges  on  land  secured 
by  express  trust,  must  now  be  read  in  directly  oppo- 
site terms  as  regards  the  intention  of  the  framers  of 
the  new  Real  Property  Limitation  Act.  "  It  is 
plain  that  the  framers  of  the  Act  did  intend  to 
keep  open  a  remedy  against  a  trustee  of  land  or 
rent,  where  the  cestui  que  trust  is  entitled  to  the 
very  subject,  and  to  close  the  door  against  a 
cestui  que  trust  of  the  produce  of  the  subject, 
however    extensive    his    right."      It    can    hardly 

(«;)  37  &  38  Vic.  c.  59,  s.  10. 

(x)  Page  104,  1st  Edition ;  page  103,  2nd  Edition. 


238  OTHER   FIDUCIARY   RELATIONS. 

Express  be  said  any  longer  "  the  plaintiff's  claim  is  not 
"^statutTof  to  a  legacy  but  to  a  share  of  the  property  specifi- 
Limitatiom.  ^^^^^  ^_^^^^  ^^  triistces,  to  be  sold  for  the  beneficial 

owner."(2/) 
other  (277.)  It  may  be  questioned  how  far  subsection  2 

rei'atiolil  was  intended  to  comprehend  or  exclude  from  the 
protection  of  the  Statute  of  Limitations,  a  class  of 
persons  who,  in  equity  were  regarded  as  trustees, 
though  not  acting  under  an  express  trust  as  defined 
in  Petre  v.  Petre.  Thus  the  case  of  a  guardian  in 
socage,  (0)  or  of  the  father  of  an  infant  entering  on 
his  estate,  was  treated  as  acting  in  fiduciary  capacity 
and  not  protected  by  the  Statute  of  Limitations,  at 
least  until  the  infant  had  attained  the  age  of  twenty- 
one  years.  In  the  case  of  a  testamentary  guardian 
of  an  infant,  the  statute  was  held  to  be  inapplicable, 
where  an  account  of  the  rents  of  the  infant's  estate 
was  sought  against  him,(«-)  but  possibly  he  might 
be  considered  as  an  express  trustee,  being  nominated 
to  his  office  by  a  writing  with  duties  attached 
thereto  by  law. (6) 

The  mere  relation  of  a  solicitor  to  his  client, 
although  fiduciary,  does  not,  per  se,  involve  that  of 
trustee,  or  cestui  que  trust, so  as  to  exclude  the  Statute 
of  Limitations.(c)  But  where  a  solicitor,  holding  a 
power  of  attorney  to  sell  property  of  his  client  and 
invest  the  proceeds  in  his  name,  received  moneys 
under  the  power  and  placed  them  with  his  own 
and  to  his  own  credit,  he  was  held  to  be  a  trustee 
for  his  principal  and  that  the  Statute  of  Limitations 

(7,)  See  Mutlow  v.  Bigg,  L.  R.  at  p.  18  Eq.  248,  V.  C.  H.  ;  L.  R.  1 
Ch.  D.  385,  A.  C. 

(s)  Duke  of  Beaufort  v.  Berty,  1  P.  Wm.  7()4. 

(o)  Tliomas  v.  Thomas,  2  Kay  and  John,  70. 

(i)  Mathews  v.  Brise,  14  Beav.  341. 

((•)  See  Crawford  v.  Crawford,  L.  R.  1  Eq.  43C,  M.  R.  reversed  on 
appeal,  S.  C.  Ch.  Ap.  Court  (Ire.),  13th  November,  18G7;  Mare  v.  Lewis, 
Ir.  Rep.  4  Eq.  211),  V.  C.  afHrmed  by  Ch.  Ap.  Court,  3rd  Juue,  1870. 


DOCTRINE    OF   LACHES.  239 

had  no  application  and  did  not  bar  a  suit  b}^  the    E.,j>nss 

^  Trusts  enid 

client. (c/)  statute  of 

(278.)  But  although  time  or  the  Statute  of  Limi-  ""l^^"^- 
tations  may  be  no  bar  to  a  claim  for  performance  of  ladieJ."''  "^ 
an  express  trust,  yet  a  Court  of  Equity  did  not 
oive  effect  to  the  claim  against  the  estate  of  a 
trustee,  when,  by  reason  of  the  death  of  parties  and 
otlier  change  of  circumstances,  the  means  of  resist- 
ing it,  if  unfounded,  may  have  perished  and  the 
trustee  is  charged  with  nothing  which  he  ought  to 
have  performed  within  twenty  years  before  the 
filing  of  the  bill.(e) 

The  Statute  of  Limitations,  3  &  4  Wm.  IV.,  c.  27,  s. 
27,  specially  declares  that  nothing  in  its  provisions 
shall  interfere  with  any  rule  or  jurisdiction  of  Courts 
of  Equity  in  refusing  relief  on  the  ground  of  acqui- 
escence or  otherwise,  to  any  person  whose  right  to 
bring  a  suit  may  not  be  barred  by  the  Act.  And 
though  the  demands  may  not  be  barred,  yet  the 
Court  in  dealing  with  the  question  of  interest  will 
have  regard  to  the  principle  of  the  statute,  where  a 
long  period  of  time  has  elapsed.  (/) 

(d)  Burdick  V.  Garrick,  L.  R.  5  Ch.  233. 

(e)  Bright  v.  Legerton,  2  De  Gex,  F.  &  Jo.  at  p.  616,  30  L.  J.,  N.  S. 
SS8,pe7-  Lord  Campbell,  L.C.,  S.  C.  iu  29  Beav.  64;  Carey  v.  Cuthbert, 
Ir.  Rep.,  7  Eq.  542  M.  R. 

(J)  Thompson  v.  Eastwood,  L.  R.  2  H.  L.  215. 


[     240     ] 


Equitable 
waste  by 
tenant  for 
life. 


"Waste  at 
common 
law. 


CHAPTER  XXXITI. 

Equitable  Waste. 

Section  28,  Subsection  (3.) 

285.  Equitable  waste  by  tenant  for  life,  p.  240. 

286.  Waste  at  Common  Law,  240. 

287.  Legal  waste  restrained  in  equity, 

288.  Meliorating  waste, 

289.  Tenants  dispunishable  of  legal  waste, 

290.  Equitable  waste  restrained, 

291.  Conflict  between  Law  and  Equity, 


(285.)  Section  25,  subsection  3, (a)  enacts  as  fol- 
lows : — 

"  An  estate  for  life  without  impeachment  of  waste 
shall  not  confer,  or  be  deemed  to  have  conferred, 
upon  the  tenant  for  life  any  legal  right  to  commit 
waste  of  the  description  known  as  equitable  waste, 
unless  an  intention  to  confer  such  right  shall 
expressly  appear  by  the  instrument  creating  such 
estate." 

(286.)  The  Common  Law  idea  of  waste,  was  a 
substantial  injury  to,  or  the  destruction  of,  the  inheri- 
tance by  a  limited  or  partial  owner,  lessee  or  tenant, 
of  the  land.  Thus  it  was  legal  waste  for  tenant  for 
life  or  for  years  to  cut  timber  trees,  open  fresh 
mines,  clay  pits,  or  quarries,  to  cut  turf  beyond  the 
requirements  of  the  occupation  of  the  land,  ex.  gr., 
by  sale(6)  unless  bog  was  demised  ex  nomine  and 
by  itself,  and  could  be  enjoyed  in  no  other  way  ;(c)  or 
to  work  for  profit  or  sale  quarries  already  open, 
and  neither  excepted  nor  reserved. ((?)  Open  mines 
were  under  a  different  category.     So  generally  to 

(a)  J.  A.  1877,  s.  28,  subs.  (3);  J.  A.  1873,  s.  25. 

(6)  Lord  Courtown  v.  Ward,  1  Sch.  &  Lefr.  8 ;  Viner  v.  Vaughan, 
2  Beav.  4G6. 

(f)  Montgomery  v.  Cunningham,  2  Mol.  53G;  see  Lord  Watcrpark  ?;. 
Austen,  1  Jones,  G27  Eq.  Ex. ;  Coppinger  v.  Gubbins,  3  Jo.  &  Lat.  397  ; 
Chatterton  v.  White,  1  Ir.  Eq.  Kep.  200,  M.  K. 

{d)  Mansfield  v.  Crawford,  9  Ir.  Eq.  Rep.  271,  M.  R. 


LEGAL  WASTE  RESTRAINED.  241 

alter  the  nature  and   quality   of  the  land,  as  by   Eqwtahie 
ploughing  ancient  meadow  and  converting  it  into      -JJ' 
arable    land,   because    years,   perhaps   ages,   must 
elapse  before  the  sod  can  be  restored  to  the  state  in 
which  it  was  before  ploughing. (/) 

Land  acquired  the  character,  in  law,  of  ancient 
meadow  or  pasture,  when  not  broken  up  for  twenty 
years  before  the  execution  of  the  lease  or  settlement 
under  which  it  was  being  enjoyed. ((/) 

To  plough  up  a  rabbit  warren  and  stop  or  destroy 
the  burrow  on  the  land  was  legal  waste,  provided 
the  warren  was  by  charter  or  prescription,  but  land 
only  stored  with  conies  or  rabbits  was  not  a  legal 
warren, (/i)  although  possibly  if  it  were  demised  as  a 
warren,  an  injunction  might  be  had  in  equity  to 
restrain  its  destruction,  (i)  Again,  to  convert 
ordinary  land,  not  let  for  the  purpose,  into  a  ceme- 
tery, was  legal  waste,  as  being  foreign  to  the  purpose 
for  which  it  was  let,  and  altering  its  character  and 
value,  (/)  or  to  convert  a  stable,  yard,  and  garden 
attached  to  a  house  into  a  lead  factory  with  a  large 
furnace  and  chimney.(/i;) 

As  between  landlord  and  tenant  it  was  waste  to 
Durn  the  land,  although  not  ancient  meadow.(^) 

(287.)  To   prevent  waste   of  this  character,  i.e.  i-egai 

\        '    /  r  waste: 

legal  waste,  in  addition  to  the  remedy  at  law.  Courts  when 

^  nil'  restrained 

of  Equity   lent   the   assistance  ot   their  summary  in  equity. 
interposition  by  way  of  injunction,  when  the  right 
was  clear  and  the  party  injured  came  without  delay. 
But  if  the  damage  done  was  merely  nominal,  and 

(/)  Simmons  v.  Norton,  7  Bingh.  at  p.  647,  per  Tindal,  C.  J. 
ig)  Murphy  v.  Daly,  13  Ir.  C.  L.  R.  239,  Exc.  Cham. 
{h)  Jurtings  v.  Conn,  1  Ir.  Chan.  Rep.  273,  M.  R. 
(*•)  Ih. 

(J)  Croly  V.  Mathew,  1  Cr.  &  Dig,  ab  cas.  8G ;  Hunt  v.   Browne, 
San.  &  So.  178;  Cregan  v.  CuUen,  16  Ir.  Chan.  Rep.  339,  M.  R. 
(/j)  Hunt  V.  Hodges,  1  Ir.  Jur.  33  L.  C. 
(0  Ware  v.  Ware,  2  Legal  Rep. 227,  M.  R. 

M 


242  MELIORATING  WASTE. 

EnnUdbu  the  delinquent  did  not  contemplate  any  repetition 
.mi'  of  it,  or  assert  a  right  to  do  it,  an  injunction  was 
not  usually  granted,  (m) 
-Mc-iiorating  (288.)  Courts  of  Equity  exercised  a  discretion 
in  granting  injunctions  to  restrain  what  might  be 
legal  waste,  and  if  they  found  that  a  harsh  or  im- 
proper use  was  being  made  of  the  legal  right,  as  in 
the  case  of  meliorating  waste,  it  refused  to  interfere, 
as  for  example  building  a  valuable  house  upon  the 
land,(rt)  or  where  a  tenant  under  a  lease  for  999 
years  altered  a  store  into  dwelling-houses,  increasing 
the  security  for  therent.(o) 

However,  cutting  of  turf  for  sale  on  an  allegation 
that  it  was  intended  for  the  improvement  of  the  land 
was  restrain  ed.(^:>) 
Tenants  (289.)  The  owucr  of  an  estate   in   land   might 

•ibT™f  *^^"  ''acquire  the  privilege  of  being  dispunishable  of  waste 
waste.  at  law,  either  by  the  express  terms  of  the  instru- 
ment creating  his  estate,  as  for  example  tenant  for 
life,  or  by  the  nature  and  quality  of  the  estate  itself : 
viz.,  1st,  by  the  estate  being  an  absolute  estate  in  fee; 
2nd,  by  his  being  tenant  in  tail  in  possession  after 
possibility  of  issue  extinct ;((/)  and  3rd,  probably  a 
tenant  in  fee-simple  subject  to  an  executory  devise 
over.(r) 

The  privilege  was  at  one  time  claimed  for  a 
tenant  for  lives  renewable  for  ever,  and  though 
admitted  by  Lord  Redesdale,(s)  was  denied  by  sub- 
sequent judges, (^)   but   it   has  been  confeiTed   by 

(m)  See  Doran  v.  Carroll,  11  Jr.  Chan.  Rep.  370,  L.  C. 

(«)  Coppinger  v.  Gubbiiis,  3  Jo.  &  Lat.  at  page  412,  per  Sir  Edward 
Sugden,  L.  C,  S.  C,  9  Ir.  Eq.  Rep.  311;  and  see  L.  J.  Tindal  in 
Simmons  v.  Norton,  7  Bingh.  at  page  G-i7. 

{<))  Uoherty  v.  Allman,  Ir.  Hep.  10  Eq.  4G0,  A.  C. 

{p)  See  Newenham  v.  Caliill,  G  L.  K.  N.  S.  373,  31.  R. 

(7)  See  Turner  v.  Wright,  2  De  Gex,  F.  &  Jo.  247. 

(r)  See  Storj-,  §  518a. 

(s)  Calvert  v.  Gasen,  2  Sch.  &  Lef.  oGl. 

(f)  Coppinger  v.  Gubbins,  3  Jo.  &  Lat.  397. 


TENANTS  DISPUNISHABLE  OF  WASTE.  248 

statute,  (-?(.)  in  respect  of  trees  planted  by  the  tenant   ErjmtaiL'. 
himself. (v)      Where   possessed    by  tenani   for   life      '!l!ff' 
simply,  of  course  it  arises  solely  by  the  permissive 
terms  of  the  settlement  or  will  creating  the  estate. 

(290.)  But  although  tenant  in  tail  after  possibility,  Equitable 
was  at  law  dispunishable  of  waste,  yet  Lord  Not-  restrained, 
tiugham  was  clearly  of  opinion  to  grant  an  injunction 
to  restrain  his  committing  waste  in  timber,  which  was 
for  the  ornament  of  the  mansion  house,  and  this  has 
been  followed  since  as  regards  tenant  for  life  and 
other  partial  owners,  unimpeachable  of  waste  at 
law,  attempting  to  pull  down  a  mansion  house,  or  to 
cut  timber  growing  for  shelter  or  ornament  of 
the  mansion  house,(u')  unless  their  proximity  to  the 
mansion  house  caused  it  to  be  unhealthy,  in  which 
case  the  court  would  itself  du'ect  trustees  to  cut 
them  down.(a3) 

What  is  ornamental  timber  is  a  matter  for  inquiry 
and  depends  on  the  circumstances  of  the  case,  and 
very  much  on  the  taste  or  want  of  taste  of  the 
settlor  who  planted  and  left  them  standing  for 
ornament.  (2/) 

The  principle  of  equity,  as  regards  equitable 
waste,  is  involved  in  the  proposition,  that  wdiere  a 
legal  right  is  acquired  or  exercised  by  fraud  or  col- 
lusion, or  contrary  to  conscience,  the  court  will  enjoin 
the  act  or  decree  a  compensation. (s)  Equitable  or  un- 
conscientious waste,  therefore,  is  anything  tending 
to  the  destruction  or  wanton  spoliation  of  the  land, 
or  that  which  a  prudent  man  would  not  do  in   the 

(u)  5  Geo.  III.,  c.  17;  7  Geo.  III.,  c.  20,  s.  1,  confers  same  privilega 
on  a  tenant  in  fee-farm. 

(y)  See  Pentland  v.  Somerville,  2  Ir.  Chan.  Rep.  299. 

(n;)  Garth  v.  Cotton,  1  Ves,  Sen.  546 ;   1  White  &  Tudor,  L.  C.   C57. 

(x)  See  1  White  &  Tudor,  notes,  p.  G91. 

{U)  See  Ford  v.  Tynte,  2  De  Gex,  Jo.  &  Smyth,  at  p.  131, /jcr  L.  J. 
Turner ;  Bubb  v.  Yelverton,  L.  R.  10  Eq.  465,  M.  R. 

(s)  Garth  v.  Cotton  ;  1  White  &  Tudor,  654,  per  Lord  Hardwicke. 

iM  2 


244<  EQUITABLE  WASTE  RESTRAINED. 

EqintaUe   management  of  his  own  property,  and  may  include 
__'     things  done  without  any  malicious  motive,  (a) 

The  principle  has  been  extended  from  trees  plan- 
ted for  ornament  of  the  house  to  outhouses,  and 
grounds,  plantations,  vistas,  avenues,  and  all  the 
rides  about  the  estate  for  ten  miles  round, (6)  and  to 
trees  planted  to  exclude  objects  from  view,(c)  also 
to  cutting  timber  too  young,  in  an  unhusbandlike 
manner,  (c?) 

Permissive  waste,  such  as  allowing  the  mansion 
house  to  fall  into  dil;ipidation,  is  not  the  subject  of 
equitable  interference  or  ground  for  an  account.((0 
But  a  voluntary  and  collusive  permission  to  a  third 
person  to  commit  waste,  by  one  who  is  dispunish- 
able himself,  is  equitable  waste.  (/) 

Where  equitable  waste  has  been  actually  commit- 
ted, a  Court  of  Equity  would  not  probably  allow 
the  person  committing  it  to  have  the  property  in 
what  was  wrongfully  done  or  cut.(^) 
Conflict.  (291.)  The  conflict,  or  rather  variance,  which  ex- 

isted between  the  rules  of  Law  and  Equity  as  regards 
the  subject  of  waste,  was  not  confined  to  the  case  of 
tenant  for  life  sans  waste.  Neither  had  it  its  origin 
in  that  class  of  partial  owners.  It  arose,  equally  and 
])rimarily,  as  we  have  seen,  and  continued  to  prevail 
where  the  tenant  had  an  estate  in  fee-simple,  subject 
to  an  executory  devise  over ;  ex.  gr.,  in  the  event  of 
his  dying  without  issue  living  at  his  decease,  or  was 
tenant  in  tail  after  possibility  of  issue  extinct,  or 

(a)  Turner  y. Wright,  2  DeGex,  F.  &  Jo.  at  p.  •2\i,jier  Lord  Camp- 
bell, L.  C. 

(6)  Marquis  of  Downsliire  v.  Sandys,  6  Vt's.  110,  ^)er  Lord  Eldon. 

((•)  1  '\Miito  &  Tudor,  notes,  p.  C7G. 

((/)  Pentland  v.  Somcrville,  2  Ir.  Chan.  Rep.  2S9. 

(e)  Powys  V.  IMagrave,  4  De  Gex,  M.  &  G.  44S. 

(y^  See  Garth  v.  Cotton,  ubi  supra. 

(ff)  See  Honywood  i;.  llonywood,  L.  II.  18  Kq.  at  p.  311,;^er  Sir 
George  Jessel,  M.  R. 


CONFLICT  OF  LAW  AND  EQUITY  ABOUT  WASTE.  2i5 

was  tenant  for  a  term  of  years,  and  even  against    Eqmtaii: 

IVastr, 

a  mortgagor  or  mortgagee  in  possession  com-  — 
mitting  or  threatening  to  commit  waste.  In  every 
such  case,  though  dispunishable  of  waste  at  law, 
the  tenant  was  held  answerable  in  equity  for 
abuse  of  his  legal  powers.(/t)  It  is,  therefore, 
difficult  to  see  why  this  enactment,  when  deemed 
necessary  at  all,  was  confined  to  the  case  of  a  tenant 
for  life ;  neither  does  it  seem  easy  to  discover 
what  the  precise  object  was,  which  the  legislature 
had  in  view  in  framing  this  particular  enactment, 
unless  it  was  to  direct  Courts  of  Law  or  their 
representatives,  the  Common  Law  Divisions,  to 
recognise  and  have  regard  to  the  principle  of  equity, 
as  to  the  abuse  of  legal  rights  or  privileges  conferred 
upon  limited  owners  of  property,  to  commit  what 
would  ordinarily  be  treated  as  waste,  and  to  enable 
a  plaintiff  complaining  in  a  Common  Law  action  on 
the  case  for  wasba,  who  heretofore  might  be  met 
with  a  defence  relying  on  the  defendant's  privilege 
to  commit  waste,  to  reply  something  to  the  effect, 
that  the  waste  committed  was  not  done  in  the  bond 
Jide  exercise  of  his  legal  privilege,  but  wantonly  and 
unconscientiously  in  abuse  of  it,  and  in  a  manner 
ruinous  to  the  interests  of  other  parties. 

It  might  have  enlarged  the  sphere  of  the  old  action 
of  waste,  founded  partly  on  the  Common  Law,  and 
partly  on  the  Statute  of  Gloucester,  under  which  the 
"tenant  who  was  attainted  of  waste  was  adjudged 
to  lose  the  thing  that  he  hath  wasted,  and  more(wer 
should  recompense  thrice  so  much  as  the  waste  shall 
be  taxed  at."(i)  But  the  action  of  waste  was  of  rare 
occurrence  in  modern  times,  and  an  action  on  the  case 
in  the  nature  of  waste  took  its  place,  whenever  a 

(A)  Turner  v.  Wright,  2  De  Gex,  F.  &  Jo.  at  p.  247,  per  Lord 
Campbell,  L.  C. 

(J)  See  Statutes  revised,  vol.  i.,  p.  31 ;  Story,  Eq.  Jur.,  §  909. 


24G  DAMAGES  FOE  EQUITABLE  WASTE, 

Eqmtnhu  i-emeclj  was  sought  at  law,  until  the  old  action  of 
— '  ^^'aste  was  wholly  abolished  by  the  statute  3  »&  4 
Wm.  ly.,  c.  27,  s.  36,  and  probably  the  remedy  will 
now  rather  be  sought  by  action  in  the  nature  of  a 
Bill  in  Chancery  to  restrain  waste,  for  under  it  not 
only  can  an  account  of  the  waste  done  and  compen- 
sation for  the  injury  be  obtained,  but  also  all  future 
waste  may  be  prevented. 
Damages.  For  the  thing  commonly  (although  with  no  great 
propriety  of  language)  called  equitable  waste,  the 
measure  of  compensation  was  such  an  amount  as 
a  jury  could  reasonably  award  to  the  reversioner 
fur  the  injury  done  to  the  inheritance.  If  no  real 
damage  was  done  the  claim  was  usually  dismissed 
with  costs.(  j)  The  rule  settled  in  Garth  v. Cotton,(^') 
and  cases  Ibllow^ing  it,  that  if  timber  is  wrongfully 
cut  by  tenant  for  life,  the  produce  at  once  be- 
comes the  property  at  law  of  the  tenant  of  the  first 
vested  remainder  of  inheritance,  who  might  bring 
an  action  of  trover  for  it,  or  file  a  bill  in  Equity  for 
an  account ;  but  this  was  subject  to  be  controlled  in 
favour  of  contingent  remainder-men  not  yet  in  esse 
by  their  trustees,  when  there  is  collusion  between 
the  tenant  for  life  and  remainder-man  entitled  to 
the  first  vested  estate  of  inheritance.  Lord  Romilly 
laid  down  a  different  rule,  viz.,  that  so  long  as  there 
was  a  possibility  of  a  prior  tenant  in  tail  coming 
into  es^se,  the  later  tenant  in  tail  had  no  such  rights; 
but  Sir  George  Jessel,  M.  R.,  has  restored  the  old 
rule.(/) 

0")  See  Bubb  v.  Yelverton,  L.  R.  10  Eq.  4G5,  M.  K. 
(/>■)  Garth  v.  Cotton,  1  White  &  Tu.  033,  3rd  Edition. 
(./)  Cavendish  v.  Mundy,  W.  X.  1S77,  ItLS,  M.  K. 


[     247     ] 

CHAPTER  XXXIV. 

Merger  of  Estates. 
Section  28.     Subsection  (4.) 

292.  Merger  of  Estates  by  operation  of  Law,  p.  24:7. 

293.  Merger  and  extinguishment,  247. 

294.  Merger  at  Law,  248. 

295.  Merger  in  Equity,  248. 

296.  Merger  of  Estates,  2o0. 

297.  By  operation  of  Law,  250. 

298.  Merger  of  charges,  252. 


(2.92.)  Section   28,   subsection   4,  enacts   as  fol- Jterger  of 

'  estates  hy 

lows  : operation 

"  There  shall  not  after  the  commencement  of  this 
Act  be  any  merger,  by  operation  of  law  only,  of  any 
estate,  the  beneficial  interest  in  which  would  not 
be  deemed  to  be  merged  or  extinguished  in  equity." 

('293.)  Mero-er  has  been  defined  to  be  the  annihila-  Merger  and 

\  /  o  ^  extinguish- 

tion  by  act  of  law,  of  the  less  m  the  greater  oi  two  ment. 
vested  estates  meeting,  without  any  intervening 
estate,  in  the  same  person  and  in  the  same  right,  or 
if  in  different  rights  meeting  in  the  same  person  by 
act  of  the  party,  and  not  by  mere  act  of  law,  and  so 
that  the  person  in  whom  the  estates  thus  meet  in 
different  rights  by  act  of  the  party,  shall  have  au 
absolute  power  of  alienation  over  both  estates.((',) 

"Extinguishment"  expressed  a  different  thing,  viz., 
the  annihilation  of  a  collateral  subject,  right  or 
interest,  in  the  estate  out  of  which  it  svas  derived, 
as  a  rentcharrre  in  the  fee  of  the  inheritance  on 
which  it  was  charged. 

There  was  also  at  law  what  was  called  a  merger 
of  securities,  i.e.  of  one  security  in  another  of  higher 
order,  as  a  bill  of  exchange  in  a  bond. 

Subsection  4  is  confined  to  the  first  of  these 
subjects,  viz.,  the  merger  of  estates,  wdiilst  the  other 

(a_)  G  Cruise's  Digest,  407,  4th  Edition. 


2-iS  MERGER  AT  LAW  AND  IN  EQUITY. 

M,rf,erof  subjects,  the  extinguishment  of  charges  and  merger 
EHUues.     ^^  securities,  not  being  estates,  so  far  as  there  may 
haijpen  to  be  any  conflict  between  the  rules  of  law 
and  equity  in  regard  to  them,  are  remitted  to  the 
general  scope  of  subsection  11. 
Merger  of        (294.)  At  law  the  intention  of  the  parties  did  not 
.-states  at     ^^^.^^.^^^  ^i^^  \(igi\\  conscqueuce  of  the  union  of  two 
estates  in  the  same   person,   in   the   same   right, 
whether  by  act  of  the  parties  or  by  act  of  law. 
I  Merger  w^as  an  operation  of  law  which  took  place 

in  either  case  irrespective  and  sometimes  in  spite  of 
the  intention.     By  the  express  saving  of  the  Statute 
of  Uses,  an  estate  in  a  relessee,  or  feoffee,  or  grantee, 
to  uses  for  a  third  person  did  not  merge  by  its 
momentary  union  with  the  seizin  of  the  freehold, 
and  so  also  by  the  statute  de  donis,  an  estate  tail 
did  not  merge  in  a  remainder  or  reversion  in  fee, 
although  the  two  estates  liappened  to  unite  in  the 
same  person  and  in  the  same  right. (6) 
Merger  in        (295.)  But  although  in  this  and  in  other  cases, 
equity.        mero-er  was  the  inevitable  consequence  of  the  union 
of  two  estates  as  between  the  parties  to  the  trans- 
action themselves,  yet   where   third    persons    had 
interests  derived  out  of  the  estate  merged,  Equity 
interfered  in  their  behalf  to  preserve  the  benefit  of 
the  charge  or  other  interest,  although  at  law  merger 
had   taken    place    as  regards    the    estate   out    of 
which  the  charge  or  interest  was  derived.     Thus 
equity,  to   protect   the   interest   of  third  persons, 
would  either  decree  possession  of  the  land  for  the 
period  of  the  estate  merged,  or  decree  a  conveyance 
to   revive   the   legal   estate,  so   as   to   answer   the 
})urposes  of  justice,  and  this  whether  the  merger 
took  place  by  direct  conveyance  or  act  of  the  party, 
or  by  act  of  law  such  as  by  descent. (c) 

(6)  6  Cruise  Dig.  481. 

(c)  G  Cruise's  Dig.  493,  Saunders  v.  BournforJ,  cas.  temp.  Finch,  424. 


MERGER  AT  LAW  AND  IN  EQUITY.  24-9 

In  contemplation  of  equity,  merger  was  said  to  be  Mcmer  of 
"  odious,"  and  never  allowed  to  prevail,  unless  for  "ill^' 
special  reasons. ((/)  Two  estates  might  meet  with- 
out any  intervening  estate,  in  the  same  person  and 
in  the  same  right  without  merger,  and  on  the  other 
hand  between  estates  separated  by  an  intervening 
estate,  merger  might  take  place  according  to  the 
intention  or  the  interest  of  the  parties.  On  the  same 
principle,  equity  would  not  permit  interests  in  per- 
sonalty, or  in  equitable  choses  in  action  to  coalesce, 
or  become  extinguished  contrary  to  the  intent  of 
the  settlors  or  the  interest  of  the  parties,  as  for 
example,  where  a  married  woman,  who  is  disabled 
by  the  ordinary  rules  of  equity  from  parting  with 
her  reversionary  interest  in  a  fund  in  Court  dui'iug 
coverture,  attempted  to  accelerate  the  accruer  of  her 
interest  in  possession,  by  accepting  a  conveyance  of 
the  previous  interest  in  the  fund,  in  order  to  alien 
her  property,  contrary  to  the  intention  of  the  settle- 
ment, equity  would  not  permit  this  to  be  done,  or 
allow  the  previous  interest  to  be  deemed  extin- 
guished, (e) 

So,  as  regards  the  union  of  estates  at  law,  if  the 
two  estates  met  in  the  same  person  by  his  own  act, 
there  was  merger  at  law,  although  the  owner  of  the 
estate  was  a  trustee  for  others,  whereas  in  equity 
the  beneficial  interest  would  be  maintained  and  pre- 
served, and  the  effect  of  the  statute  seems  to  be  to 
preserve  and  maintain  the  legal  estate  as  a  subsist- 
ing est-ate,  as  if  it  had  been  assigned  to  a  trustee  for 
the  legal  owner,  instead  of  to  the  legal  owner  him- 
self of  the  greater  estate.  Thus  where  the  trustee 
of  a  term  for  years  acquires  the  estate  of  inheritance 
in  the  same  lands  by  his  own  act,  ex.  gr.,  by  purchase, 
inasmuch   as   the   beneKcial  interest   in   the   lease 

id)  1  PhiUips  V.  Phillips,  1  P.  Wm.  41. 
(e)  See  Whittle  v.  Henning,  2  Ph.  731. 

m3 


250  LEGAL  ESTATES — BY  OPERATION  OF  LAW. 

Merf/cr  of  woulcl  not  be  suffered  to  merge  or  be  extinguished  in 
" — _  '  e(|uity,  so  now  there  shall  be  no  merger  of  the 
legal  term  for  years  by  operation  of  law  only.  "  A 
trust  of  a  term  for  years  would  be  supj)orted  in 
equity  though  the  term  was  merged  in  the  iuheri- 
tance.'X/)  "A  mere  merger  of  the  estate  in  the  lease, 
in  the  reversion  in  fee,  will  not  in  equity  affect  or 
alter  the  rights  of  persons  claiming  under  the  lessee 
during  the  continuance  of  the  lease."(gf)  Now  it  is 
presumed  the  legal  estate  in  the  lease  will  be 
held  to  be  subsisting  and  not  merged. 

Merger  of        (296.)  The  subscctiou  speaks  of  the  merger  "  of 

legal  or  any  estate,"  having  in  view,  probably,  rather  the 
merger  of  one  legal  estate  in  another  legal  estate. 
A  similar  result,  i.e.,  merger,  was  the  consequence  of 
the  union  of  two  equitable  estates  in  the  same  per- 
son, as  where  the  beneficial  ownership  of  a  lease 
became  vested,  whether  by  descent  or  conveyance 
in  the  owner  of  the  revei'sion  u])on  that  lease. (A) 
But  where  an  equitable  fee  and  a  particular  legal 
estate,  or  the  legal  fee  and  a  particular  equitable 
estate  met  in  the  same  person  there  was  no  merger 
by  operation  of  law,  simply  because  courts  of  law 
did  not  recognise  equitable  estates.  Now,  however, 
they  must  do  so,  but  as  there  had  been  no  merger 
formerly  in  such  a  conjunction  of  estates,  so  neither 
will  there  be  now. 

By  opera-         (297.)  The  subscction  says  there  shall  be  no  mer- 

tum  ol  law  ^  ■'  ^  ^ 

only.  gei-  "  by  operation  of  law  only,"  an  expression  wliich 

seems  open  to  some  ambiguity,  as  to  whether  it  is 
applicable  to  the  mode  by  which  the  estates  meet,  i.e., 
by  act  of  law  (as  distinguished  from  by  act  of  tlie 
party),  or  to  the  legal  consequence  of  their  meeting, 

(/;  Saunders  v.  liduniford,  Finch's  Kepts.  temp.  Fincli,  421. 
(.</)  Fulton  V.   Croayli,   9  Ir.  Eq.  Rep.,  at  p.  294,  per  Sir  Edward 
Siigden,  L.  C. 

(//)  C  CruLsc  Dig.  481,  sect.  CO. 


MERGER  BY  OPERATION  OF  LAW.  251 

as  an  act  or  oijeration  of  law  independent  of  inten-   lUerr/cr  n/ 

'■  ^  Estates. 

tion.  

In  the  latter  sense,  and  that  -which  seems  most  to 
accord  with  the  grammatical  strncture  of  the  sen- 
tence, the  subsection  would  include  every  case  in 
which  merger  actually  took  place,  whether  the 
estates  met  by  act  of  the  parties,  ex.  gr.,  by  direct 
conveyance  or  by  act  of  law,  as  by  marriage,  descent, 
or  devise.  In  the  former  but  more  probable  sense, 
the  provision  would  be  confined  to  a  single  one  of 
the  three  possible  combinations  or  classes  of  cases  in 
which  merger  did  take  place,  namely,  that  class  of 
cases  in  which  two  estates  meet  in  the  same  person, 
in  different  rights,  and  by  act  not  of  law,  but  hy  act 
of  the  pai-ty.  In  respect  to  the  merger  of  estates 
meeting  in  the  same  person,  they  might  meet  either 
by'  act  of  the  party,  or  by  act  of  law,  and  they  might 
meet  either  in  the  same  right  or  in  different  rights. 
There  are  thus  four  combinations  or  classes  of  cases 
in  which  two  estates  can  meet  in  the  same  person. 
In  the  first  class,  the  estates  meet  in  the  same  person 
and  in  the  same  right,  and  by  act  of  the  party,  an^l 
here  merger  took  place,  and  will  still  take  place. 
In  the  second  class  the  estates  meet  in  the  same 
person  and  in  the  same  right,  but  by  act  of  law. 
There  also  merger  took  place  and  wiU  still  take  place. 
In  the  third  class  the  estates  meet  in  the  same  per- 
son, but  in  different  rights,  and  by  act  of  law.  There 
no  merger  took  place  either  at  law  or  in  equity, 
and  of  course  the  subsection  does  not  apply,  as  where 
one  estate  was  held  by  the  party  in  his  own  right, 
whilst  the  other  was  in  autre  droit,  ex.  gr.,  as  hus- 
band and  wife,  executor  or  administrator,  or  as  a  mem- 
ber of  a  corporation  aggregate.  In  the  fourth  and 
last  class,  the  estates  meet  in  the  same  person  in 
different  rights,  but  by  act  of  the  party.  There  mer- 
ger took  place  at  law,  but  frequently  in  contem- 


252  MERGER  OF  CHARGES. 

Merger  of  plation  of  a  Court  of  Equity,  the  estate  was  not 

jistotes.  .^.gj    13^^,^  ^y.^s    deemed   to  subsist  in   order   to 

support  the  beneficial  interest  of  the  person  entitled 

to   the   benetit   of  the   legal   estate   in   the  estate 

merged. 

(298.)  Perhaps  the  chief  importance  of  the  doc- 
trine of  merger  appeared  with  reference  to  charges 
on  estates.  An  intending  purchaser,  apprehensive  of 
further  and  unknown  incumbrances  turning  up,  used 
to  take  a  conveyance  of  the  earlier  incumbrances  paid 
off  out  of  his  purchase-money  to  a  trustee  for  him- 
self, in  order  to  protect  him  as  with  a  shield 
a^'ainst  other  estates  or  claims. 

If  the  pvirchaser  took  an  assignment  of  the  charge 
to  himself,  becoming  the  owner  of  the  charge  and 
of  the  estate,  the  charge  became  extinguished  at  law, 
but  would  in  many  cases  be  preserved  in  equity. 
So  if  the  owner  of  the  charge  became  the  purchaser 
of  the  estate  charged,  the  charge  was  extinguished 
at  law.  Tlius  as  regards  legal  charges,  such  as  judg- 
ments, mortgages,  and  portions  secured  by  legal 
terms,  "  upon  this  subject  a  Court  of  Equity  is 
not  guided  by  the  rules  of  law.  It  will  sometimes 
hold  a  charge  extinguished  where  it  would  subsist 
at  law,  and  sometimes  preserve  it  where  at  law  it 
would  be  merged.  The  question  is  upon  the  inten- 
tion, actual  or  presumed,  of  the  person  in  whom  the 
interests  are  united."(rt)  The  doctrine  has  been 
expressed  in  a  recent  case  in  Ireland. (6) 

"The  entire  doctrine  of  equity  is  founded  not 
merely  on  the  circumstances  or  expressed  intention 
of  the  party  who  pays  off  the  charge,  but  further  on 
the   condition   and   position   of    the   estate   itself, 

(a)  Forbes  v.  jNIoffat,  18  Ves.,  at  page  390,  per  Sir  Wm.  Grant, 
^I.  R. 

(6)  See  Kcogh  v.  Kcogh,  Ir.  Rep.,  8  Eq.  at  page  l'J5,  ;;er  Sullivan, 
M.  R. 


MERGER  OF  CHARGES.  253 

whether  they  are  such  as  to  make  it  for  the  benefit  Merger  of 
of  the  owner  that  the  charge  should  remain ;  and  ' —  ' 
case  after  case  establish  that  the  union  of  the  owner- 
ship of  the  charge  and  the  estate,  whether  in  tail  or 
in  fee,  will  not,  apart  from  express  intention,  cause 
the  charge  to  merge,  if  it  is  for  his  benefit,  having 
regard  to  the  circumstances  of  the  estates  and  other 
charges  existing  thereon  it  should  not  merge."(c) 

Henceforth  it  is  presumed  that  the  equitable 
doctrine  of  intention  as  regards  the  merger  of  charges 
will  be  recognised  at  law,  and  it  may  no  longer  be 
so  necessary  to  incur  the  expense  of  assigning  legal 
charges  or  terms  to  trustees,  for  the  benefit  of  the 
owner  of  the  inheritance. 


CHAPTER  XXXV. 
Possessory  Suits  by  Mortgagor. 

Section  28.    Subsection  (5), 

299.  Mortgagor  in  possession,  p.  253. 

300.  Position  of  Mortgagor  at  Law,  254. 

301.  Equitable  views,  25G. 

302.  Statutory  powers  conferred,  256. 

303.  Exceptions  to  these  powers,  257. 

30i.  Terminate  witli  notice  from  Mortgagee,  258. 


(299.)  Section   28,   subsection  5,  enacts   as   fol-  Mortgagor 

In  posses- 
lows  : sion. 

"  A  mortgagor  entitled  for  the  time  being  to  the 
possession  or  receipt  of  the  rents  and  profits  of  any 
land,  as  to  which  no  notice  of  his  intention  to  take 
possession,  or  to  enter  into  the  receipt  of  the  rents 
and  profits  thereof,  shall  have  been  given  by  the 
mortgagee,  may  signia)  and   cause  to  he   served, 

(c)  See  also  Ricliards  z;.  Richards,  John.  766;  Morley  v.  Morley,  5 
De  Gex.  M.  &  G.  610  ;  Lord  Compton  v.  Oxenden,  2  Ves.  Jun.  261. 

(«)  The  passages  in  italics  are  not  in  the  corresponding  subsection 
of  the  English  Act. 


254  MORTGAGOR  IN  POSSESSION  AT  LAW. 

Suitsjor  notices  to  quit,  determine  tenancies,  or  accept  sur- 
^yMort-''  renders  thereof,  and  sue  for  the  possession,  or  for  the 
r;ogor.  ■  recover  J  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  con- 
tract made  by  him  jointly  with  any  other  person ; 
and  such  action,  suit,  or  pi^oceedAng  shall  not  he 
defeated. by  proof  that  the  legal  estate  in  the  lands, 
the  possession  of  %vhich  is  sougJct  to  be  recovered  or 
in  respect  of  ivhich  tJte  rents  and  profits  are  sought 
to  be  recovered,  or  in  respect  to  ivhich  the  trespass 
or  other  wrong  has  been  committed,  is  vested  in 
such  mortgagee. 

"  Provided  ahuai/s  that  a  mortgagor  shall  not  be  at 
lioerty  to  exercise  any  of  the  powers  hereby  conferred 
if  an  express  declaration  that  they  shall  'not  be 
exercised  is  contained  in  the  mortgaged (h) 
Position  of  (300.)  At  common  law  after  the  execution  of  a 
at  iiiw.°  legal  mortgage,  the  mortgagee  was  regarded  as  the 
owaier  of  the  estate  and  of  the  title  deeds,  and  as 
such,  entitled  immediately  to  enter  into  possession 
or  receipt  of  the  rents,  and  to  have  and  to  withhold 
the  title  deeds,  and  to  refuse  to  produce  them  until 
his  debt  was  paid.  But  notwithstanding  this  legal 
right,  for  convenience  sake,  and  from  the  natural 
reluctance  of  mortgagees  to  encounter  the  serious 
responsibilities  attaching  on  the  position  of  a 
mortgagee  in  possession,  it  was  customary,  either 
by  tacit  consent  or  by  express  provision  in  the  deed 
of  mortgage,  to  permit  the  mortgagor  to  retain  the 
possession  or  receipt  of  rents  till  default  has  been 
made  in  payment  of  the  interest  on  the  mortgage 
debt. 

Where,  by  the  express  terms  of  tlic  deed,  the 

(i)  J.  A.  1877,  s.  28,  sub.  5  ;  J.  A.  1873,  s.  2. 


MORTGAGOR  IX  POSSESSION  AT  LAW.  255 

mortgagor  is  allowed  to  remain  iu  jDOssession  until    suUs/or 
default,  tins   may  be    regarded  as    in  the  nature    ly  Mon- 
of  a  redemise  by  the  mortgagee  to  the  mortgagor     ^f^'' 
during  the  currency  of  the  period  given  for  repay- 
ment of  the  mortgage  money. 

Where  the  mortgagor  retained  possession  without 
any  such  special  provision,  his  right  to  the  possession 
was  more  precarious  than  that  of  any  other  cestui 
que  trust,  for  the  mortgagee  might  resume  the 
possession  whenever  he  pleased;  and  even  in  equity 
the  mortgagor  in  possession  was  regarded  ■  as  only 
tenant  at  will  to  the  mortgagee,  or  rather  in  the 
still  lower  position  of  tenant  at  sufferance,  liable  to 
be  treated  as  a  tenant  or  as  a  trespasser  at  the 
option  of  the  mortgagee,  and  ejected  without  notice 
to  quit,  or  demand  of  the  possession.(c)  On  the 
other  hand  he  was  not  regarded  as  a  bailiff  or 
receiver  to  the  mortgagee,  inasmuch  as  he  was  not 
bound  to  account  with  him  for  the  rents  received.  He 
was  in  fact,  as  one  who  having  parted  with  his  estate, 
remained  in' possession  at  the  pleasure  and  consist- 
ently with  the  rights  of  the  mortgagee,  and  liable 
to  be  treated  as  a  tenant  or  a  trespasser  at  his 
pleasure,  (c?) 

As  regards  the  tenants  of  the  estate  in  morto-affe, 
their  position  was  also  anomalous.  If  a  new 
tenancy  were  created  by  the  mortgagor  after  the 
execution  of  the  deed  of  mortgage,  the  tenant  was 
ordinarily  estopped  from  disputing  his  lessor's  title 
at  law,  but  on  the  other  hand,  the  tenant  was  liable 
to  disturbance  and  eviction  at  the  hands  of  the 
morto;ao-ee,  the  morto-ao-or  beino-  at  the  same  time 
liable  for  breach  of  hiscovenant  for  quiet  enjoyment. 

As  regards  pre-existing  tenants,  the  mortgagor 

(c)  2  Cruise  Dig.  80,  note  («) ;   see  Doe   v.   Giles,  5  Biiigli.   431  ; 
Cholmonddey  v.  Clinton,  2  Meriv.  359. 
((/)  See  Fisher  on  Mortgages,  2ud  Ed.  4Gi. 


256 


EQUITABLE  VIEWS — STATUTORY  POWERS. 


Suits  b>/ 
Mortgnynr 
ill  Posses- 
sion. 


Equitable 
views 
enforced 
at  law. 


h'tatutory 

powtrs 

coaicricd. 


having  departed  with  his  reversion,  became  as  it 
were  a  stranger  in  law  to  the  estate  and  the  tenantry. 
He  had  no  right  to  serve  a  notice  to  quit,  or  to  sue 
for  any  rent,  or  for  breaches  of  covenant  in  the  lease, 
or  to  distrain,  unless  so  far  as  authority  in  that 
behalf  could  be  proved  or  implied  from  the  niort- 
sfao-ee,  to  act  as  his  agent  or  his  bailiff  and  in  his  the 
mortgagee's  name. 

Thus  a  mortgagor  although  suffered  to  remain  in 
possession  as  the  ostensible  proprietor  of  the  estate, 
was,  by  reason  of  the  mortgage,  which  might  not  be 
for  one-half  its  value,  by  certain  rules  of  law 
seriousl}^  hindered  in  the  management  of  his  pro- 
perty, and  prevented  from  getting  rid  of  an  unskil- 
ful or  dishonest  tenant,  or  punishing  trespassers, 
except  under  colour  of  an  authority  from  an  absent 
and  passive  incumbrancer,  and  the  mere  relation  of 
mortgagor  and  mortgagee  did  not  in  itself  imply  an 
authority  from  the  latter  to  the  former  to  give  a 
notice  to  quit  to  any  tenant  on  the  estate,  although 
the  mortgagor  was  allowed  to  remain  in  possession 
as  the  ostensible  owner  of  the  estate. (e) 

(301.)  On  the  other  hand,in  Equity  the  mortgagor 
was  reijarded  as  the  real  owner  and  the  mort^atree 
as  the  merely  nominal  owner  of  the  estate,  and 
even  at  Common  Law  Judges  in  latter  times  have 
struggled,  as  far  as  they  possibly  could,  to  relieve  a 
mortgagor  in  possession  from  the  anomalous  conse- 
quences of  the  position  in  which  he  stood  at  law, 
and  in  doing  so  have  been  driven  to  exercise  their 
utmost  ingenuity  in  looking  out  for  circumstances 
sufhcient  to  establish  a  sort  of  general  authority 
from  the  mortgagee  enabling  the  mortgagor  to  act 
on  his  behalf  (/) 

(o()2.)  This  subsection  5  confers  upon  amortgagor, 

(c)  See  Miles  v.  Murphy,  Ir.  Rep,  5  C.   L.  382,  il  B. 
(_/")  See  Stacpoole  v.  rarkiuson,  Ir.  Rep.  S  C.  L.  u(Jl,  Ex. 


EXCEPTIONS  TO  STATUTORY  POWERS.  257 


while  suffered  to  remain  in  possession  or  receipt  of    Svus  u,, 

.  1  ,  M»rt  'anor 

the  rents,  valuable  proprietory  rights  m  the  nature  in  Passes- 
of  statutable  powers,  enabling  him  to  manage  and      '!!!!! 
protect  his  estate,  and  sue  in  his  own  name  as  the 
ostensible  owner,  and  not  as  the  mere  agent   or 
representative  of  his  mortgagee. 

Under  these  powers  he  may  sign  and  cause  to  be 
served  a  notice  to  quit  to  determine  tenancies  in  his 
own  name ;  he  may  bring  an  ejectment  to  recover 
the  possession  in  his  own  name,  and  he  may  sue  for 
the  rent  and  probably  distrain  for  it(^)  in  his  own 
name.  He  may  also  apply  for  an  injunction  to  restrain 
waste  or  trespass  on  the  estate,  or  sue  for  damages 
in  respect  of  it  in  his  own  name,  and  probably  he 
may  also  sue  for  a  breach  of  covenant  in  the  lease, 
although  running  with  the  land,  and  hitherto  in  the 
right  of  the  legal  assignee  of  the  reversion. 

(303.)  The  subsection  (5)  excludes  from  its  opera-  Exceptions 

\  /  ^    ■'  .to  powers. 

tion  cases  in  which  the  cause  of  action  arises  upon 
a  lease  or  other  contract  made  with  the  mortgagor 
jointly  with  any  other  person.  This  seems  to  be 
somewhat  strange,  and  would  exclude  a  case  like 
that  of  Stacpoole  v.  Parkinson, (/i)  where  the  lease 
was  made  by  both  mortgagor  and  mortgagee.  Even 
at  common  law,  where  the  covenants  were  made 
with  the  mortgagor  himself,  he  was  entitled  to  sue 
in  his  own  name,  the  covenants  being  in  the  gross,  (i) 
and  when  they  were  made  with  mortgagor  and 
mortgagee  jointly,  the  mortgagor  might  possibly 
be  entitled  to  sue  in  his  own  name,  when  the  mort- 
gage money  had  been  paid  off,  provided  the  redden- 
dum and  the  covenants  in  the  lease  were  framed 
with  that  view(J). 

(i?)  See  Trent  v.  Hunt,  9  Ex.  14. 

(Ji)  Stacpoole  v.  Parkinson,  ubi  supra. 

(0  Stokes  V.  Rupell,  3  T.R.  G78. 

(j)  Harold  V.  Whitaker,  11  Q.  B.  U7. 


2o8  STATUTORY  POWERS  TERMINATED  BY  NOTICE. 

f!»mfnr        (304.)  The  statutory  rights  conferred  by  subsec- 

^ol^^Aiun^  tion   5   on  the  mortgagor  in  possession  terminate 

nof?or-      ^yj^^ij  notice  given  by  the  mortgagee  of  his  intention 

to  take  possession  or  to  enter  into  the  receipt  of  the 

rents  and  profits. 
Termiuated      The  statute  docs  not  say  to  whom  the  notice  is  to 
from  be   given  whether   to    the    mortgagor   or    to  the 

tenants ;  nor  does  it  prescribe  any  particular  form 

of  notice,  or  state  whether  it  should  be  in  writing 

or  by  parol. 


mortgaoree. 


CHAPTER  XXXVI. 

Choses  in  Action,   Assignment  of. 

Section  28.     Subsection  (6). 

30,").  Assic;ninent  of  Debts,  and  Glioses  in  Action,  p.  258. 
30(5.  What  are  Choses  in  Action,  250. 

307.  Confined  to  Legal  Choses,  2G0. 

308.  How  far  assignable  hitherto,  2G1. 

309.  Future  Assignments  Effectual,  202. 
310    Is  Statute  Compulsory,  2G3. 

311.  Writing  underhand  of  Assignor,  204. 

312.  Absolute  and  not  b}'  M'ay  of  Charge,  204. 

313.  Notice  to  Debtor,  2C5. 

314.  Notice  to  be  express,  207. 

315.  Notice  to  be  iu  writing,  208. 

310.  Notice  by  Whom,  208. 

317.  Notice  to  Whom,  208. 

318.  Notice  aliunde  to  subsequent  Assignee,  209. 

319.  Effectual  from  date  of  Notice,  209. 

320.  Assent  of  Debtor  not  necessary,  270. 

321.  Subject  to  Equities  affecting  Assignor,  270. 

322.  Equities  between  Assignees,  270. 

323.  Debtor  called  to  Interplead,  271. 

324.  Lodgment  under  Trustee  Relief  Acts,  272. 


Assignment      (305.)  Scction  28,   subsection  (C),  of  the  Judica- 

and'icpai     ^^^^"^  -^^^  cnacts  as  follows : — 

acuoi! '"  "  ^"^y  absolute  assignment,  by  writing,  under  the 
hand  of  the  assignor  (not  purj)orting  to  be  by  way 
of  charge  only)  of  any  dcl)t  or  other  legal  chose  in 
action,  of  which  express  notice  in  writing  shall  have 
been  given  to  the  debtor,  trustee,  or  other  person 


WHAT  AIIE  CHOSES  IN  ACTION,  259 

from  whom  the  assiirnor  would  have  been  entitled  Assignment 

.  •  1     11      of  Glioses 

to  receive  or  claim  such  debt  or  chose  m  action,  shall  in  Actiou. 
be,  and  be  deemed  to  have  been  effectual  m  law 
(subject  to  all  equities  which  would  have  been  en- 
titled 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  the  chose  in  action,  from  the 
date  of  such  notice,  and  all  legal  and  other  remedies 
for  the  same,  and  the  power  to  give  a  good  discharge 
for  the  same,  without  the  concurrence  of  the  assignor  ; 
provided  always,  that  if  the  debtor,  trustee,  or  other 
person  liable  in  respect  of  such  debt  or  chose  in 
action,  shall  have  had  notice  that  such  assignment 
is  disputed  b}^  the  assignor,  or  anyone  claiming 
under  him,  or  of  any  other  opposing  or  conflicting 
claims,  to  such  debt  or  chose  in  action,  he  shall 
be  entitled,  if  he  think  fit,  to  call  upon  the 
several  persons  making  claim  thereto,  to  interplead 
concerning  the  same,  or  he  may,  if  he  think  lit,  pay 
the  same  into  the  High  Court  of  Justice,  under  and 
in  conformity  with  the  provisions  of  the  Acts  for 
the  relief  of  trustees,  "(a) 

(306.)  As   to  what  is  a  chose  in  action  besides  what  are 

^  '  _  _  choses  m 

ordinary  debts,  bills  of  exchange  and  promissory  action, 
notes,  policies  of  life  insurance,  &c.,  may  be  men- 
tioned the  debentures  of  a  public  company,  e.g.,  a 
mining  company  undertaking  to  pay  a  certain  sum 
on  a  fixed  day,  and  though  they  propose  to  give  a 
charge  on  the  property  of  the  company,  they  are 
not  therefore  the  less  choses  in  action.(6) 

But  shares  in  a  public  company,  transferable  in 
the  books  of  the  comjian}^  are  not  things  in  action 
at  all,  and  are  reo-arded  as  goods  and  chattels,  at 
least  within  the  meaning  of  the  order  and  disposi- 
tion clause  of  the  English  Bankruptcy  Act,  82  &  83 

(a)  J.  A  ,  1877,  s.  28,  subs.  (J.     J.  A.,  1873,  s. 
(6)  Ex  parte  Reusbury,  2j  W.  li.  432  V.  C.  B. 


2G0  LEGAL  CHOSES  IN  ACTION. 

Assignment  Vic.  c.  71,  s.  15,  subs.  5.(c)  An  interest  in  real 
in  Acttort.  Gstate,  like  the  equity  of  redemption,  is  not  an 
equitable  chose  in  action,  but  merely  an  estate  in 
the  land/cZ)  and  a  transfer  of  it  does  not  require 
notice  to  be  given  to  the  trustee  or  mortgagee  to 
perfect  the  transfer  or  to  secure  its  priority,(cZ)  but 
a  money  fund  vested  in  trustees  ultimately  raisable 
out  of  land  by  v/ay  of  charge  is  not  an  equitable 
estate  in  land  as  regards  the  cestui  que  trusts 
ofit.(e) 
Confined  to  (307.)  The  subsectiou  (6)  appears  to  draw  the 
ijractioa.  distinction  between  debts  and  other  legal  choses  in 
action  recoverable  in  a  court  of  law  and  equitable 
claims  in  the  nature  of  choses  in  action  recoverable 
only  in  a  court  of  equity,  and  it  seems  to  deal 
exclusively  with  the  former,  leaving  the  transfer  of 
equitable  interests  as  it  was  before.  Some  a[)parcnt 
ambiguity  would  seem  to  arise  as  to  this  by  the 
introduction  of  the  word  "  trustee "  twice  in  the 
subsection,  when  speaking  of  the  person  chai-geable 
or  from  whom  the  assignor  would  be  entitled  to 
receive  or  claim  the  debt  or  chose  in  action,  and  to 
whom  the  notice  of  the  assignment  is  to  be  given. 
This  expression  would  suggest  the  idea  that  the 
subsection  was  intended  to  apply  to  equitable 
debts  and  claims  as  well  as  legal,  but  such  a  con- 
struction seems  to  be  scarcely  reconcileable  with 
the  general  expression  "  debt  or  other  legal  chose 
in  action,"  in  the  early  part  of  the  clause,  and  which 
seems  to  govern  the  entire  provision.  Besides  this, 
equitable  interests  were  already  assignable  under 
conditions  almost  similar  to  those  annexed  now  to 

(c)  Ex  parte  Union  Bank  of  Manchester,  12  Eq.  354,  C.  J.  B.,  L.K. 

00  Uochard  v.  Fulton,  7  Jr.  Eq.  Kep.  131,  1  Jo.  &  Lat.,  413  ; 
Dearie  v.  Hall,  3  Kuss.  1 ;     Loveridge  v.  Cooper,  3  I?uss.  3.'). 

(e)  Daniel  v.  Freeman,  Ir.  Kep.  11  Eq.  at  p.  248;  Dearie  v.  Hall, 
ubi  siipra. 


CHOSES  IN  ACTION  HOW  FAR  ASSIGNABLE.  261 

the  assignment  of  legal  choses  in   action    by  this  Assignment 

,    .  of  Choses 

provision.  in  Action. 

(308,)  At  the  Common  La\y,  with  some  few  Ho\77rr 
exceptions,  a  possibility,  right,  title,  or  thing  in  ijitJfg"to.^® 
action  could  not  be  transferred  to  a  third  person  by 
assignment.  Hence,  a  debt  or  other  chose  of  action 
was  said  not  to  be  assignable,  or  rather  the  assign- 
ment was  not  recognised  at  law  as  valid  or 
effectual  to  pass  title  to  the  debt  or  to  confer  a 
rio-ht  of  suit  in  respect  of  it.  However,  if  the 
debtor  assented  to  the  transfer,  the  right  was  con- 
ferred on  the  assignee  to  maintain  a  direct  action 
against  the  debtor,  but  this  was  upon  an  implied 
promise  to  pay  the  debt  resulting  from  the 
assent. (/)  Bills  of  exchange  and  promissory  notes 
became  an  exception  to  this  rule  by  the  custom  of 
merchants  and  the  necessities  of  trade  and  com- 
merce, and  by  various  statutes,  bailbonds,  replevin, 
Exchequer  and  railway  bonds,  bills  of  lading  en- 
dorsed, and  at  one  time  Irish  judgments,  and  more 
recently  policies  of  life  assurance (^r)  and  marine 
insu  ranee,  (/t) 

Courts  of  Equity,  on  the  other  hand,  long  since 
took  notice  of  such  assignments,  and  enforced  rights 
growing  out  of  them,  acting  in  accordance  with  the 
principles  of  the  civil  law  and  the  jurisprudence 
of  the  modern  commercial  nations  of  Continental 
Europe,  hy  which  the  assignment  of  debts  and  con- 
tracts is  recognised  as  free  from  objection,  and 
effectual  to  pass  the  property  and  to  entitle  the 
assignee  to  sue  in  his  own  name. 

In  Courts  of  Equity,  assignments  of  legal 
choses  in  action,  and  of  equitable  interests  went 
under  the  common  designation  of  equitable  assign- 
ments and  were  allowed  to  transfer  tlie  property 

(/•)  See  Story,  Eq.  Jur.  §  10,  39.      (g)  30  &  ol  Vie.  c.  Ui. 
(^)  31  &  32  Vic.  c.  86. 


262  FUTURE  ASSIGNMENTS  EFFECTUAL  AT  LAW. 

Assignment  SO   effectually   that   the    assignee    might    sue   for 

of  CliO^os 

in  Action,  and  recover  them  in  their  courts  in  his  own  name, 
subject  only  to  reasonable  conditions  for  the  pro- 
tection of  the  party  chargeable.  But  the  assign- 
ment of  a  bare  right  of  action  for  a  tort  was  void 
both  in  law  and  equity,  fj)  There  must  be  some 
substantial  possession  and  capability  of  personal 
enjoyment  in  the  matter  transferred, (/i)  and  the 
assignment  of  a  bare  right  to  file  a  bill  for  fraud 
committed  on  the  assignor  was  held  void  as  being- 
contrary  to  public  policy  and  savouring  of  the 
offence  called  maintenance. (i)  Lately  the  assign- 
ment of  a  debt,  together  with  the  right  to  proceed 
with  a  petition  to  wind  up  a  public  company  in 
respect  of  the  debt,  was  considered  to  be  such  as 
could  not  be  permitted,  from  the  mischief  and 
oppression  that  might  be  occasioned  if  a  person 
were  allowed  to  come  in  and  buy  up  the  right  to 
proceed,  (j/) 
Future  (309.)  The  subsection  (G)(/o)  with  some  little  vari- 

assv|nmeut  ^^^^^^  extcuds  to  the  Commou  Law  Divisions  of  the 
^JS;''  High  Court  the  doctrine  held  by  Courts  of  Equity 
as  to  the  transferability  of  debts  and  other  legal 
choses  in  action,  by  enacting  that  any  absolute  as- 
signment thereof,  of  which  express  notice  in  writing 
shall  be  given  to  the  debtor,  trustee,  or  other  person 
from  whom  the  assignor  would  have  been  entitled 
to  receive  or  claim  such  debt  or  chose  of  action, 
shall  be  deemed  to  be  effectual  in  law  to  pass  the 
ler'al  rio-ht  to  the  debt  or  chose  in  action  from  the 
date  of  the  notice,  and  all  legal  and  other  remedies 
for  the  same,  and  to  the  power  to  give  a  good  dis- 

(</)  Story,  Eq.  Jur.  §  1040  h. 
Qi)  Prosser  v.  Edmonds,  1  You.  and  Col.  E.x.  481. 
(0  Storj',  §  1040  h. 

(.;■)  In  re  Paris  Skating  Rink  Co.  L.  R.  5  Cli.  D.  at   p.   9G2,   per 
L.  J.  James,  A.C. 

(/.)  J.  A,,  1^11,  s.  28,  subs.  (<;).     J.  A.,  1873,  s.  25. 


ASSIGNMENTS  EFFECTUAL  AT  LAW.  263 

charge  for  it  without  the  concurrence  of  the  assignor.  Assignment 
The  precise  effect  of  this  provision  may  not  be  imme-  f,;  acuoZ 
diately  apparent,  since  by  reason  of  the  extension  of 
equitable  jurisdiction  to  every  branch  of  the  High 
Court  of  Justice,  the  substantial  difference  between  a 
legal  and  an  equitable  assignment  and  the  remedy 
by  way  of  suit  in  law  and  equity  has  greatly 
lessened  if  it  has  not  altogether  disappeared.  But 
there  may  be  a  difference  in  the  remedy  if  not  in 
the  right,  of  an  assignee  of  a  legal  chose  in  action 
suing  in  the  High  Court  of  Justice,  as  compared 
with  his  position  hitherto  in  a  Court  of  Equity,  viz., 
that  whereas  formerly  the  assignor  was  a  necessary 
party  to  the  suit,  and  the  assignee  had  no  right  to 
go  into  equity  unless  the  assignor  had  refused  to 
allow  him  to  use  his  name,  or  had  done  some  act 
to  his  prejudice  at  law,  and  the  mere  equitable(^) 
title  to  the  money  secured  by  the  chose  in  action 
was  not  of  itself  sufficient  to  entitle  the  party  in- 
terested to  sue  the  debtor  in  equity  for  payment  of 
his  money. (7u)  Now  the  assignee  having  the  legal 
right  and  the  power  to  give  a  discharge  without  the 
concurrence  of  the  assignor,  may  it  is  presumed  sue 
the  debtor  without  making  the  assignor  a  co-defend- 
ant,  and  probably  if  the  debtor  claims  to  have  the 
benefit  of  any  equity  between  himself  and  the 
assignor  he  should  ask  to  have  him  made  a  party 
to  the  action.  "Where  a  married  woman  was 
entitled  to  choses  in  action  settled  to  her  separate 
use  an  assignment  might  be  made  by  her  in 
equity('?i)  and  semble  now  at  law. 

(310.)  It  may  become  a  question  as  regards  certain  is  the 
legal  choses  in  action  already  made  assignable  at  imperat 


statute 

ive. 


(?)  Hammond  v.  Messenger,  9  Simons,  327.    Fletcher  v.  Fletcher,  4 
Hare,  67. 

(j«)  See  Rose  v.  Clarke,  1  You.  and  Col.  N.  S.  ooi. 
00  See  Proudley  v.  Fielder,  2  Myl.  and  K.  57. 


-2i)t 


IS  STATUTE  IMPERATIVE. 


in  Action. 


i^Mpnmevt  \r^y^  'by  particular  statutes  or  in  some  particular 
'■  "'***  manner, how  far  any  such  choses  in  action  may  be  also 
effectually  assigned  in  the  manner  prescribed  by 
subsection  6. 

But  it  would  seem  that  its  provision  is  permissive 
and  not  compulsory,  and  that  absolute  assignments 
of  leo-al  choses  in  action  so  far  as  they  were  com- 
petent and  effectual  before  by  any  particular 
mode  or  process  of  assignment,  will  continue  to  be 
so  independently  of  the  Judicature  Act.  Thus  a 
bill  of  lading  may  be  transferred  by  simple  indorse- 
ment, with  the  absolute  right  in  the  indorsee  to  sue  for 
and  give  a  legal  discharge,  and  free  from  or  subject 
to  equities,  according  as  the  indorsement  was  before 
or  after  the  bill  became  due. 

In  other  cases  where  the  assignments  were 
hitherto  merely  equitable  assignments,  and  the 
provisions  of  the  Judicature  Act  are  not  strictly 
followed,  it  is  presumed  that  the  assignment  will 
amount  to  nothing  more  than  an  equitable  assign- 
ment as  it  was  understood  before  the  Act,  but  will 
be  good  so  far  and  operate  as  such. 

(311.)  The  subsection  G  does  not  prescribe  any 
particular  form  of  assignment,  or  define  in  terms 
what  is  an  assignment  further  than  that  it  must  be 
by  writing  under  the  hand  of  the  assignor,  and  not 
purport  to  be  by  way  of  charge  only. (71) 

A  judgment  creditor  is  therefore  not  an  assignee 
in  any  sense,  having  an  equity  until  he  obtains  a 
charging  order  ;  but  having  done  so  if  he  omits  to 
give  notice  of  it  by  means  of  a  stop]order,  in  case  of  a 
fund  in  Court,  a  subsequent  purchaser  for  value  may 
acquire  a  preferable  title  by  notice.  (0) 

(312.)  The  assignment  mentioned  by  subsection 


Assiirn- 
mont  by 
writing 
under 
liaml  of 
assignor, 


Absolute 

and 

complete 


(n)  See  Chowne  v.  Baylis,  31  Beav.  351,  as  to  equitiibU 
ments. 
(y)  See  Scott  v.  Lord  Hastings,  4  K.  &  J.  G33. 


NOTICE  TO  DEBTOR  ESSENTIAL  TO  TITLE.  265 

6  must  be  "  absolute  "  and  "  not  purporting  to  be  by  A^^-vgnme,  t 

.J,    ,  f.    of  Chuses 

way  of  charge  only,"  and  query  if  by  way  ot  in  Action. 
morto-ao-e.  It  would  seem  that  it  should  purport  to 
pass  the  entire  interest  of  the  assignor,  and  that  a 
partial  assignment  of  his  interest  will  not  operate 
as  a  legal  assignment  under  the  Act,  although  it  may 
be  a  good  equitable  assignment  p?'o  tanto  as  before. 

C313  )  "  Express  notice  in  writing  "  of  the  assign-  Notice  to 

\  ■'  I-  111       debtor 

ment  to  be  given  to  the  debtor  or  person  chargeable,  essential  to 
seems  to  be  made  essential  to  the  efficacy  of  the  ''^^ 
assignment  in  law,  to  the  transfer  of  the  legal 
rights  and  remedies  of  the  assignee  and  to  the 
power  to  give  a  good  discharge  independently  of 
the  assignor.  Notice  would  therefore  seem  to  hold 
a  different  place  in  legal  from  what  it  did  in  equit- 
able assignments.  In  legal  assignments  under  this 
provision,  notice  is  matter  of  title  essential  to  the 
validity  of  the  transfer,  and  not  merely  material 
as  regards  security  and  priority  in  reference  to 
other  transfers.  In  equitable  assignments  notice  to 
the  trustee  or  debtor  is  not  necessary  to  validate  or 
complete  the  transfer,  as  against  the  assignor,  but 
only  to  secure  the  assignee  against  the  title  of  some 
third  person  who  by  his  superior  diligence  in  giving 
notice  might  acquire  an  earlier  equity,(p)  and  the 
absence  of  notice  exposed  the  assignee  to  the  risk  of 
payment  being  made  of  the  debt  to  the  assignor  in 
the  interval  between  the  assignment  and  the  notice 
ofit.(g) 

The  absence  of  notice  as  regards  legal  assign- 
ments opens  the  question  of  "consent  and  permis- 
sion" in  reference  to  "the  order  and  disposition" 
clause  in  the  Bankruptcy  Acts.  Notice  after  bank- 
ruptcy may  be  too  late(r)  although  given  before  the 

0)  See  Hobson  v.  Bell,  2  Beav.  23  ,  Dearie  v.  Hall,  3  Kuss.  1 ;  In  re 
Pryce.  25  W.  R.  432,  V.  C.  B. 

(7)  Donaldson  17.  Donaldson,  Kdy.  7 19. 

(r)  In  re  Webb's  PoUcy,  36  L.  J.  Chan.  341,  V.  C.  M. 

N 


2G6  NOTICE  TO  DEBTOE  ESSENTIAL  TO  TITLE. 

Assignment  assignee  in  Bankruptc}^  gives  notice.  The  omission 
in  Action,  ou  the  One  hand  leaves  the  chose  in  action  in  the 
power  of  the  assignor  to  assign  to  another  assignee, 
and  leaves  it  on  the  other  as  a  chattel  in  danger  of 
being  confiscated  under  the  order  and  disposition 
clause  in  bankruptcy,  and  seized  and  sold  for  the 
benefit  of  the  creditoi's  of  the  bankrupt. (^)  Under 
the  Bankruptcy  Acts  in  force  in  Ireland,  and  in  the 
earlier  English  Acts, (it)  choses  in  action  are  doubt- 
less goods  and  chattels  which  may  be  left  in  the 
order  and  disposition  of  a  bankrupt,  with  the 
consent  and  permission  of  the  true  owner,  an  assig- 
nee for  value,  whose  neglect  to  give  notice  may  be 
2>rhnd  facie  evidence  oi  laches,  or  consent;  but  the 
general  assignee  acquires  no  titJe  to  the  chattel, 
until  an  order  for  sale  and  disposition  has  been 
made  by  the  Court  of  Bankruptcy,  though  once  a 
sufficient  order  has  been  made,  it  seems  to  relate 
back  to  the  date  of  the  bankruptcy,  and  possibly 
although  made  after  action  brought  or  bill  filed.(i') 
But  an  order  giving  assignee  leave  to  litigate  the 
question  or  to  intervene  in  a  pending  suit  does  not 
amount  to  an  order  determining  that  the  goods 
were,  at  the  time  of  the  Bankruptcy,  in  the  order 
and  disposition  of  the  Bankrupt,  with  the  consent 
of  the  ti'ue  owner  and  for  sale  (^t'). 

So  far  in  the  event  of  bankruptcy  the  title  of 
the  particular  assignee  who  neglects  to  give  notice, 
is  liable  to  be  jeopardized  if  not  divested  by  an 
order  for  sale  under  the  reputed  ownership  clause — 
provided  the  order  made,  be  specific,  anil  be  pro- 

(/)  See  /«  re  Ilickey,  a  bankrupt,  Ir.  Rep.  JO  Eq.  117,  A.  C.  ;  al.'.o 
Bartlett  v.  Bartlett,  1  De  Gex.  &  Jo.  127,  per  L.J.  Turner;  Daniel  v. 
Freeman,  Ir.  Hep.  11  Eq.  233,  M.  K. 

(«)  12  &  13  Vic.  c.  107,  Ir. ;  20  &  21  Vic.  c.  60,  .s.  313  Ir. ;  12  & 
13  Vic.  c.  lOG,  Engl;  but  the.v  are  exeluded  by  the  last  Act,  32  &  33 
Vic.  c.  71,  3.  15  sub.  5,  Engl. 

00  -See  Heslop  v.  Baker,  8  Ex.  411. 

(w)  Bradley  v.  James,  Ir.  Kep.  10  Com.  L\w  441,  E. 


EXPRESS  NOTICE.  267 

duced  in  proper  time,  (a;)    How  far  an  order  by  way  Assignment 
of  express  adjudication  made  by  the  Court  of  Bank-  InAcUm. 
ruptcy  under    its   extended  jurisdiction,    and  not 
appealed  from,  is  conclusive  upon  the  true  owner, 
does  not  appear  to  have  been  expressly  decided. 

It  is  to  be  noticed  that  under  the  English  Bank- 
ruptcy Act,  32  &  33  Vic.  c.  71,  s.  15,  sub.  5,  choses 
in  action  (other  than  debts  due  to  the  bankrupt  in 
the  course  of  his  trade)  are  no  longer  to  be  deemed 
goods  and  chattels  within  the  meaning  of  the  order 
and  disposition  clause,  or  as  such  distributable 
among  creditors. 

In  the  Irish  statutes  the(6)  order  and  disposition 
clause  is  declared  not  to  apply  to  any  transfer  or  assign- 
ment of  any  ship  or  vessel  or  share  thereof  made  by 
way  of  security,  duly  registered ;  but  there  is  nothing, 
as  far  as  we  can  find,  corresponding  to  the  exempting 
clause  in  the  English  Act. 

Notice  by  an  assignee  of  an  equitable  chose  in 
action  to  the  trustee,  was  necessary  under  the  earlier 
statutes  to  prevent  the  assignor  assigning  over,  even 
after  his  bankruptcy  or  insolvency,  and  in  the  latter 
case  if  the  subsequent  assignee  gave  formal  notice, 
he  might  oust  the  title,  not  only  of  the  first  assignee, 
but  also  of  the  general  assignee  in  bankruptcy  or  in- 
solvency who  neglected  to  give  notice  before-hand. (c) 

(314.)  The  notice    spoken  of,  in   order  to   give  Express 
effect  to  an  assignment  of  a  legal  chose  in  action,  "ot'^«- 
must  be    "express"    notice   and   not   constructive 
notice.      In   equitable   assignments   notice   to   the 
trustee   should   be    direct   notice,    and   the    casual 
knowledge  of  it  acquired  aliunde  e.g.  by  the  solicitor 

(a-)  Daniel  r.  Freeman,  Chan.  Ap.  Ct.  (Ire.)  30  April,  1877,  revers- 
ing on  latter  point  S.  C.  vbi  supra,  and  see  Bradley  v.  James,  supra. 

(6)  See  12  &  13  Vic,  c.  106,  s.  125 ;  20  &  21  Vic.  c.  60,  s.  313. 

(c)  Holt  V.  Dewell,  4  Hare  447  ;  In  re  Brown's  Trusts,  L.  R.,  5  Eq. 
90.  V.  C.  W.  ;  Lloyd  v.  Banks,  L.  R.,  4  Eq.  222  ;  Sowerby  v.  Brooks, 
4  B.  &  A.,  523. 

n2 


must  be  in 
ivritiug. 


:>G8  NOTICE   IN   WKITING. 

Assignment  of  the  trustcGs  was  not  sufficient.(f?.)     "Wliere  the 
hiArtToH.  trustee  had  actual  notice  of  the  prior  assignment,  it 
did  not  matter  whether  the  knowledge  was  acquired 
in  the  same  transaction  or  in  a  different  one.(c) 
Notice  (315.)  Although  no  particular  form  of  notice  is 

prescribed  by  the  Act,  yet  it  must  be  in  writing. 
This   was  not    necessary   in    regard   to   equitable 
assignments.      Parol  notice  to  a  trustee  was  suffi- 
cient if  it  was  express.  (/")     It  was  made  so  as  regards 
the  legal  transfer  of  policies  of  life  insurance  by  the 
statute  30  &  31  Vic,  c.  144,  s.  3. 
By  uiiom.        (316.)  Subsection  (6)  does  not  say  by  whom  the 
notice  in  writing  is  to  be  given.     It  is  presumed  it 
should  be  given  by  the  assignee,  and  for  safet}^  sake 
it  had  better  be  signed  by  him,  though  probably  a 
notice  given  by  a  person  acting  as   his  agent  or 
solicitor  on  his  behalf  might  be  deemed  sufficient, 
and  if  so,  notice  given  by  the  assignor  might  be  taken 
to  be  notice  given  by  or  on  behalf  of  the  assignee. 
To  wiiom.        (317.)  The  notice  must  be  given  to  the  debtor, 
trustee  or  other  person  from   whom  the  assig-nor 
would  have  been  entitled  to  claim  the  debt  or  chose 
in  action.     In  case  of  an  equitable  assignment  of  a 
legacy  charged  on  a  particular  fund  but  to  be  paid 
out  of  the  assets,  notice  given  to  the  executor  was 
held  sufficient.(^)     Where  a  fund  was  in  the  Court 
of  Chancery  to  the  credit  of  a  cause,  notice  should 
be  given  to  the  Accountant- General  and  only  by 
means  of  a  stop  order,  restraining  transfer  without 
notice  to  the  assignee. (/t)     Where  the  funds  stood 

(rf)  See  /«  re  Brown's  Trusts,  L.  It.,  5  Eq.  88  V.  C.  W.  ;  Lloyd  v. 
Banks,  L.  R.,  4  Eq.  222  ;  !n  re  Tichener,  35  Beav.  317. 

(e)  Meuxr.  Bell,  11  Hare  73. 

(/)  In  rf.  Tichener,  35  Beav.  317;  Allertson  v.  Chichester,  L.  K. 
10,  C.  P.  3'-"J. 

(o)  Molloy  V.  French,  13  Ir.  Eq.  Rep.  261,  L.  C.  ;  but  see  Holt  v. 
Dewell,  4  llare,  446. 

(A)  Stuait  V.  Cockcrell,  L.  K.  8  Eq.  at  p.  601);  but  sec  Livesay  v. 
Harding,  28  Beav.  141. 


NOTICE  TO  SUBSEQUENT  ASSIGNEE.  269 

in  the  books  of  the  Bank  of  England  in  the  name  Assiynment 
of  a  sole  trustee  who  was  dead  and  without  a  repre-  in  Action. 
sentative,   a  distrino-as   lodo-ed  at    the    bank  was 
deemed  sufficient,  (i) 

In  equitable  assignments  where  there  were  several 
trustees,  notice  to  one  was  equivalent  to  notice  to  all, 
so  long  as  circumstances  remained  unaltered,  as  for  ex- 
ample, by  the  death  or  retirement  of  that  trustee. (y) 

(318.)  The  notice  spoken  of,  i.e.,  to  the  debtor  or  Notice 
trustee  is  of  course  a  different  thing  from  actual  to  the 

f,    ,  1  .  .  ,  1  .  1  subisequent 

notice  01  the  prior  assignment  reaching  a  second  assiguee. 
assig-nee  before  his  purchase.  The  doctrine  of 
Dearie  v.  Hall  assumes  that  neither  the  incum- 
brancer giving  the  notice,  nor  the  trustee  at  the 
time  of  such  notice  being  given,  has  not  notice  of 
any  prior  incumbrance  affecting  the  fund.(/i;) 

(319.)  The  assignment  if  duly  made,  and  notice  Effectual 
given  to  the  debtor,  is  effectual  in  law  to  pass  and  of  service, 
transfer  the  leo-al  rio-ht  to  the  debt  or  chose  in 
action  from  the  date  of  such  notice.  The  statute, 
however,  does  not  say  whether  from  the  date  of 
the  notice  being  given  or  being  received.  It  is 
presumed  from  the  latter,  and  it  seems  doubtful 
whether  a  notice  duly  posted  but  never  received, 
would  be  effectual  for  this  purpose.  (Z) 

The  notice  should  for  prudence  sake  be  given  at 
the  earliest  possible  moment. 

If  the  debt  be  in  present!  payable  in  futuro,  of 
course  the  assignee  can  acquire  no  earlier  right  to 
sue  than  the  assignee  had. 

As  between  the  assignor  and  assignee,  an  assigTi- 
ment  perfected  by  notice  would  seem  to  take  the 
property  in  the  chose  in  action  out  of  the  assignor, 

(i)  Etty  V.  Bndges,  2  You.  and  C.  C.  C  486. 
(i)  Meux  V.  Bell,  1  Hare,  73. 

(k)  See  Meux  v.  Bell,  1  Hare,  at  p.  84,  ^Jer  V.  C.  Wigram. 
(0  See  In  re  Hickey,  a  bankrupt,  Ir.  Eep.  10,  Eq.  117,  Chan.  A.  C, 
L.  J.  Christian. 


debtor  not 
necessary. 


270  ASSIGNMENT  SUBJECT  TO  EQUITIES. 

Assignviciit  and  divGst  him  of  the  right  to  recover  payment  or 

in  ActZn.   give  a  valid  discharge  for  it. 

Ass^i^of  (820.)  The  assignment  of  a  debt  under  subsection 
(^6)  becomes  effectual  at  law  without  the  assent  of 
the  debtor,  so  f;ir  following  the  analogy  of  the  rule  in 
equity. (')7i)  The  rule  at  common  law  was  otherwise, 
and  an  assifrnee  of  a  legal  debt  could  not  sue  the 
debtor  without  his  assent,  and  as  on  a  fresh  contract 
and  assumpsit. (ti) 

Subject  to        (321.)  The  assicmment  though  effectual  at  law  is 

equities  ^  °  . 

between  made  "  subject  to  all  equities  which  would  have 
anVdebtor.  been  entitled  to  priority  over  the  right  of  the  as- 
signee if  this  (Judicature)  Act  had  not  passed." 
The  assignee  takes  subject  first  to  the  existing 
equities  between  the  original  parties  to  the  debt  or 
chose  in  action (o)  provided  they  arise  in  the  same 
transaction,  and  are  not  collateral  or  subsequent 
to  the  transfer,  (p) 

The  chief  equities  between  assignor  and  debtor 
are  part  payment,  set  ofl,  calls  by  a  public  com- 
pany, lien  of  a  solicitor  or  an  executor,  and  right  of 
stoppage  in  transitu.  However,  the  debtor  may  by 
his  original  contract  with  his  creditoi",  or  by  the 
subsequent  dealings  between  him  ajid  the  assignee, 
limit  or  lose  this  right  to  set  up  an  equity. (g) 
Equities  (822.)  As  bctwcen  scvcral  assiguccsfor  valuc  of  the 

between  ^',  ,  .°  ^         n      •       ' 

assignees,  same  chosc  in  action,  the  assignee  who  first  gives 
notice  will,  cceteris  paribus,  render  his  assignmeut 
effectual  against  all  others ;  but  if  he  has  notice 
of  a  previous  assignment  for  value,  although 
the  latter  be  imperfect  in  law  from  want  of  notice 

(m)  See  ex  parte  South  3  Swanst.  39U ;  M'FadUen  v.  Jeukjns,  I  Thil. 
ir,7.  («)  Tibbits  v.  George,  5  Ad.  and  El.  IIG. 

(o)  In  re  Natal  Investment  Co.  L.  R.  3  Cb.  355;  Jennings  v.  Bond,  2 
Jo.  and  Lat.  720,  8  Ir.  Eq.  Kep.  755. 

(p)  Molloy  V.  French,  13  Ir.  Eq.  Rep.  2G1  ;  but  see  Ilopkinson  v. 
Owens,  1  Mol.  562. 

(7)  See  Higgs  v.  Northern  Assam  Tea  Co.,  L.  K.,  4  Exch.  ?87  ;  In 
re  Northern  Assam  Tea  Co.,  L.  II.  10  Eq.  458. 


EQUITIES  BETWEEN  ASSIGNEES.  271 

to    the    debtor    or    trustee,  the    second    assignee  Assigvment 
may  probably  be  held  to  have  taken  subject  to  the  inActi 


tion. 


equitable  title  of  the  previous  assignee  for  value. (.s) 
A  volunteer  could  raise  no  equity  as  between  him- 
self and  a  later  assignee  for  value  whether  notice  was 
given  to  the  debtor  or  not(^), although  against  the  as- 
signor himself  if  the  gift  or  trust  was  fully  executed 
and  complete,  his  title  was  good, and  also  against  per- 
sons derivins:  under  him  as  volunteers,  even  without 
notice,  although  probably  not  against  creditors 
under  the  statute  of  Elizabeth,  and  the  later  volun- 
teer by  giving  notice  did  not  make  his  title  the 
better,  (u)  In  fact,  as  between  volunteers  notice  to 
the  debtor  did  not  affect  priorities. (y)  Whichever 
assignment  was  the  earlier  in  date  took  priority. (i{;) 
As  between  two  volunteers,  if  the  one  that  was  puisne 
had,  by  diligence  and  w^ithout  fraud,  realized  the 
fund,  the  Court  probably  would  not  interfere  or 
deprive  him  of  tlie  fruits  of  his  diligence. (a;)  Now 
if  with  knowledge  of  a  previous  assignment  to  an- 
other person,  although  a  volunteer,  a  second  volun- 
tary assignee  first  gives  notice  it  may  be  a  question 
how  far  he  can  acquire  advantage  thereby. (?/) 

(323.)  The  subsection  (6),  for  the  further  security  Debtor 
of  the  debtor  contains  this  proviso,  viz. — "Ifthedebtor,  for  inter 
trustee,  or  other  person  liable  in  respect  of  such  debt,  or  ^  ®^  ^'^' 
chose  inaction,  shall  have  had  notice  that  suchassign- 
ment  is  disputed  by  the  assignor  or  anyone  claim- 
ing under  him,  or  of  any  other  opposing  or  conflict- 

{s)  See    Justice  v.  Wynne,    12  Ir.   Chan,  Rep.  309,  per  Ball,    J. 
and  cases  cited  there. 

(0  Semper  Ball,  J.  at  p.  308.     L.  C.  at  p.  305. 

(«)  Justice  V.  Wynne,  12  Ir.  Ch.  Rep.  287,  C.  A. 

(r)  Rice  v.  Rice,  2  Drewry  85  ;  Justice  v.  Wj-nne,  nhi  supra. 
■     {to)  See  Justice  v.  Wynne,  12  Ir.  Chan.,  Rep.  309,  per  Mr.  J.  Ball, 
and  cases  cited  there. 

(x)  S.  C.  per  Blackburae.  L.  J.  A.  at  p.  299,  300. 

(J/)  See  lb.  p.  300. 


272  INTERPLEADER — LODGMENT  T.  R.  ACTS. 

Assignment  ing  claims  to  siich  debt  or  chose  in  action,  he  shall 
ZacZZ  be  entitled,  if  he  think  fit,  to  call  upon  the  several 
persons  making  claim  thereto,  to  interplead  concern- 
ing the  same." 

Debtor  (324")  So  also  the  debtor  or  trustee  chargeable, 

may  lodge  ^  '  .  i     •  t  i      i 

money  having  notico  of  an  assignment  bemg  disputea,  or 
Trustoe  of  Conflicting  claims  to  the  debt  or  chose  in  action, 
Relief  Acts.  .^  ^^^^^^^  ^^y  subscctiou  (6),  (s)  if  he  thinks  fit,  to 
pay  the  same  into  the  High  Court  of  Justice  under 
and  in  conformity  with  the  provisions  of  the  Acts 
for  the  relief  of  trustees." (ct)  Hitherto  a  debtor  had 
no  such  right,  and  an  insurance  company  in  ordinary 
cases  could  not  lodge  the  amount  of  the  policy  in 
court.  (6) 


CHAPTER   XXXVII. 

Stipulations  not  of  the  Essence  of  Contracts. 

Section  28.     Suhsectio7i  (7). 

325.  Stipulations  not  of  Essence  of  a  Contract,  p.  272. 

326.  Conflict  between  Law  and  Equity,  273. 

327.  Stipulations  as  to  time,  273. 

328.  Stipulations  as  to  Quantity,  274. 

329.  Relief  against  Penalties,  275. 

330.  What  is  Penalty  and  what  Liquidated  Damages,  27G. 

331.  Relief  against  Forfeitures,  278. 

332.  Liquidated  Damages  and  Option  to  do  the  Act,  2  79. 


Mico  of 
contracts 


stipuia-  (325.)  Section  28  of  the  Judicature  Act,  Subsec- 

onhe"°*     tion  (7),  (a)  enacts  as  follows  : — 

"  Stipulations  in  contracts,  as  to  time  or  otherwise, 
which  would  not,  before  the  commencement  of  the 
Judicature  Act,  have  been  deemed  to  be,  or  to  have 
become  of  the  essence  of  such  contracts  in  a  Court 
of   Equity,    shall  receive  in  all   courts  the    same 

(2)  J.  a.,  1877,  s.  28,  sub.  6 ;  J.  A.,  1873,  a.  25. 

(a)  See  10  &  11  Vic,  c.  96;  12  &  13  Vic,  c  74. 

(i)   Vide  In  re  Haycock's  Policy,  L.  R.,  1  Cli.  D.  Gil,  U.  R. 

(a)  J.  A.  1877,  3.  28,  sub.  (7) ;    J.  A.  1873,  s.  25,  sub. 


STIPULATIOXS  AS  TO  TIME.  273 

construction  and  effect  as  they  would  have  thereto-    supuia- 

r.  •        1   •      T-1        -1      )j  tions  not  of 

tore  received  m  Jiiquity.  Essence  <>/ 

(326.)  The  divergence  of  equity  from  law  was  °'^_^'^'*- 
nowhere  more  marked  than  in  the  way  in  which  a  tet'^veen 
Court  of  Equity  dealt  with  stipulations  in  contracts,  [^'^^'^^  ^"*^ 
as  to  time  or  otherwise,  and  the  consequent  relief  it 
afforded  in  causes  of  mortgages,  forfeitures,  penalties, 
and  misdescriptions  in  contracts  generally.  The 
common  law  was  supposed  to  act  on  the  literal 
terms  and  language  of  contracts ;  equity  to  re- 
gard the  spirit  and  not  the  letter,  to  look  to  the 
intent  rather  than  the  form  of  the  contract, (6)  and 
a  Court  of  Equity  frequently  decreed  specific  per- 
formance of  contracts  where  the  action  at  law  had 
been  lost,  by  the  default  of  the  party  seeking  the 
specific  performance  ;  ex.  gr.,  where  the  terms  of 
the  agreement  had  not  been  strictly  performed, 
and  where  to  sustain  an  action  at  law  performance 
should  be  averred  according  to  the  very  terms  of 
the  contract,  and  yet  it  would  be  unconscientious 
that  the  agreement  should  not  be  carried  out.(c) 

(327.)  Stipulations  as  to  time  were  not  ordinarily  stipuia- 
regarded  in  Equity  as  of  the  essence  of  a  contract, 
although  time  might  be  made  essential  by  express 
stipulation  of  the  parties  ;  ex.  gr.,  a  stipulation  that 
in  consideration  of  punctual  payment  on  or  before 
a  certain  day  a  reduced  rent  or  amount  of  interest 
should  be  received,  (c?)  It  may  also  appear  from 
the  general  character  of  the  property,  the  sub- 
ject of  the  contract,(e)  where  lapse  of  time  changed 
the  value  and  nature  of  the  thing  contracted  for, 
or  affected  the  persons  to  participate  in  the  benefit 


(t)  See  Peachey  v.  Duke  of  Somerset,  2  White    &  Tudor,  L.    C. 
970. 

(c)  Davis  V.  Houe,  2  Sch.  &  Lef.,  at  p.  437,  per  Lord  Redesdale. 

(d)  See  Hudson  v.  Temple,  29  Beav.  536. 

(e)  See  Patrick  v.  Milner.  23  W.  K.  790,  C.  P.  D. 

N  3 


tious  as  to 
time. 


274  STIPULATIONS  AS  TO  QUANTITY. 

stipuia-     of  it;  ex.gr.,  a  reversion  expectant  on  a  life  an- 

Esaence  of  nuity  or  an  ecclesiastical  lease,(/)  or  where  the  pro- 

ov^jH  s.   ^^^j.^y  ^^g  ^jP  ^  fluctuating  variable  character,  and 

Avas  sold  for  some  immediate  purpose  of  trade,  as  a 
public  house  sold  as  a  going  concern,  with  a  certain 
amount  of  customers  attached  to  it,(^)  or  where 
the  object  of  one  party  to  the  contract  would  be 
defeated  by  the  delay,  it  being  to  meet  some 
particular  exigency,  as  where  an  immediate  sale 
was  contracted  for  with  a  view  to  pay  off  incum- 
brances bearinoj  a  hio-h  rate  of  interest  out  of  the 
purchase  money,  (/i)  In  a  recent  case(i)  a  party 
contracted  to  purchase  a  residence,  and  that  pos- 
session should  be  given  by  a  certain  day,  and  the 
vendor  tendered  the  possession,  but  failed  to  show 
title  by  that  day.  The  Court  of  Chancery  held 
that  the  stipulation  as  to  time  was  of  the  essence 
of  the  contract,  and  the  construction  of  it,  as  regards 
giving  possession,  should  be  the  same  in  a  Court  of 
Equity  as  in  a  Court  of  Law,  and  therefore  the  pos- 
session spoken  of  must  be  held  to  be  possession  with 
a  good  title  previously  shown, 
stipuia-  (328.)  In    equity,    stipulations   as   to    quantity, 

qijiintity.  cvcn  in  land,  when  arising  in  mistake  or  uninten- 
tional misdescription,  were  not  regarded  as  of  the 
essence  of  a  contract,  provided  the  amount  was  so 
far  small  and  unsubstantial,  that  the  deficiency 
might  be  reasonably  compensated  for  in  money. 
Thus  where  the  acreage  of  an  estate  sold,  as  des- 
ciibed  in  the  contract  is  slightly  inaccurate, (/■)  or 
term  of  years  contracted  for  as  being  twenty-one 
years,  proves  short  by  an  insignificant  amount  such 

(/•)  Carter  r.  Dean  of  I'ly  7  Sim.  211. 
0/)  Cowlcs  V.  Gale,  L.  R.  7  Ch.  V2. 

(Ji)  See   Popliam  v.    Eyre,  cited  in    Crofton  r.   Orinsl)y,  2  ScL.   & 
Lef.  G04:. 

(0  Tilley  V.  Thomas,  L.  R.  3  Ch.  (51. 

{k)  See  M'Keuzic  v.  Hesketh,  W.  N.  1877,  24f),  Fry,  J. 


RELIEF  AGAINST  PENALTIES.  1 1  •-> 

as  a  quarter,  these  defects,  thoudi  they  mioht  defeat    supuia- 

.  1  1  -11°  i_-         XT      ^  tionsnot  ot 

an  action  at  law,  lay  so  clearly  m  compensation  tnat  i^^ssence  <f 
a  Court  of  Equity  would  enforce  the  execution  of  "'1^  *' 
the  contract. (J)  But  where  the  misdescription  was 
in  a  material  point  of  the  contract  such  that  it  maybe 
reasonably  supposed  the  party  might  never  have 
entered  into  it  if  he  had  been  aware  of  the  misdes- 
cription, it  could  not  be  relieved  against  either  in 
equity  or  at  law.(^')  A  misdescription  of  the  tenure 
of  the  estate  contracted  to  be  sold,  ex.  gr.,  as  copy- 
hold, whereas  it  proved  so  be  partly  freehold,  was 
always  fatal  in  equity,(^)  so  where  the  contract  was 
for  a  lease,  whereas  the  contractor  could  only  give 
an  under-lease,  (m) 

(329.)  Penalties  inserted  in  contractsto  secure  per-  Relief 
formance  of  some  act  or  the  enjoyment  of  some  penalties 
riffht,  although  considered  at  law  absolute,  were 
relieved  against  in  equity,  in  cases  in  which  all  the 
material  parts  of  the  contract  were  or  might  still  bo 
performed,  the  Court  requiring  the  covenantee  or 
obligee  in  such  case  to  be  satislied  with  the  sub- 
stantial performance  of  his  contract,  giving  him  by 
way  of  recompense  all  that  really  was  expected  or 
desired  according  to  the  intention  of  the  parties.(9i) 

Relief  from  penalties,  ex.  gr.  of  a  larger  sum  of 
money  for  the  non-payment  of  a  smaller  sum  on  a 
particular  day,  was  the  most  ordinary  instance  of 
the  exercise  of  this  jurisdiction.      A  court  of  law 

(_/)  See  Seton  v.  Slade,  7  Ves.265;  2  White  &  Tudor,  468.  Halsey 
V.  Graut,  13  Ves.,  at  p.  77,  Lord  Erskiue,  L.  C.  Vignoles  v.  Boweii, 
12  Ir.  Eq.  Rep.  194,  M.  R. 

(A)  Flight  V.  Booth,  1  Bingh.,  N.  C,  at  p.  377,  Tindal,  C.  J.  Dim- 
mock  i:  Hallett,  L.  R.,  2  Ch.  21,  L.  JJ. ;  and  see  cases  cited  in  Addi- 
son on  Contracts,  7th  Ed.,  40?-3. 

(0  Aylesu.  Cox,  16  Beav.  23. 

(m)  Madeley  v.  Booth,  2  De  Gex  &  Sma.  US. 

(«)  Peachy  v.  Duke  of  Somerset,  1  Strange,  447,  2  White  &  Tudor, 
977.  See  Thompson  v.  Hudson,  L.  R.,  4  II.  L.,  at  p.  15,  per  Lord 
Hatherlev. 


276  PENALTY  OR  LIQUIDATED  DAMAGES. 


stipuia-  would  award  judgment  for  the  full  amount  men- 
£Hsence  of  tioned  in  the  bond,  and  a  Court  of  Equity  issued  its 
oiij^c  s.  -^^j^^j^g^-Qj^  ^Q  restrain  execution,  the  plaintiff  in 
equity  offering  to  pay  the  amount  actually  due  for 
debt  and  damages.  This  led  to  the  enactment  of 
the  statutes,  9  Wm.  Ill,  c.  10,  Ir.;  8  &  9  Wm.  III.,  c. 
11,  s.  8,  Engl,  making  the  penalty  of  a  bond  or  other 
penal  sum  for  the  non-performance  of  any  covenant 
or  agreement  contained  in  any  deed  or  writing,  a 
security  only  for  the  damages  really  sustained  and 
providing  that  no  more  should  be  recoverable  at 
law  than  would  be  allowed  to  be  recovered  in 
equity.  Accordingly,  the  statute  requires  the 
plaintiff  to  assign  particular  breaches,  and  take  the 
opinion  of  a  jury  as  to  the  amount  which  he  ought 
under  the  circumstances  be  permitted  to  levy.  It 
applies,  however,  only  to  penalties  for  non-perfor- 
mance of  contracts  or  agreements,  to  bonds  condi- 
tioned for  the  payment  of  one  sum  in  globo,  and 
where  the  agreement  is  to  pay  by  instalments,  ex.  gr., 
an  annuity,  it  did  not  apply,  (o) 
What  is  a  (330.)  A  penalty  is  a  punishment  or  infliction  for 
aurwhjit  not  doing  or  for  doing  something,  (/>)  but  an  engage- 
dama^'lcs.'^  Hicnt  for  full  payment  of  money  actually  due  on  an 
existing  contract,  in  case  of  failure  to  pay  a  smaller 
sum  on  acertain  day  cannot  be  treated  as  a  penalty.((j^) 
So  where  a  creditor  agrees  to  receive  his  debt  with 
interest  by  certain  instalments,  with  a  proviso  that 
in  default  of  punctual  payment  of  any  instalment 
the  entire  unpaid  portion  of  the  debt  shall  become 
immediately  payable,  this  proviso  is  not  a  pcn- 
alty.(r) 

(o)  See  Preston  V.  Daniel,  L.  R.  8  Exdi.  IK;  Gorman  v.  Ilinks, 
Batty,  527  ;  and  see  cases  cited,  Ferg.  Prac.,  pp.  447,  448. 

(/O  See  Thompson  v.  Thompson,  L.  R,,  4  H.  L.  at  p.  28,  ]>er  Lord 
Westbury. 

(7)  76.  at  p.  23  ;  and  see  Kemble  v.  Farren,  G  Biugh.  KL 

(r)  Sterne  v.  Bock,  1  De  Gex,  Jo.  &  Smith,  5'J5. 


PENALTY  OR  LIQUIDATED  DAMAGES,  277 

Neither  is  it  a  penalty  where  damages  are  of  an  supuia- 
uncertain  nature,  and  the  parties  choose  to  stipulate  Essence  oj 
beforehand,  each  to  deposit  a  specific  sum  to  be  °''12^''- 
forfeited  by  way  of  liquidated  damages  on  failure  to 
complete  the  agreement ;  this  agreement  being  an 
independent  part  of  the  contract  may  be  enforced 
according  to  its  terms,  and  the  liquidated  damages 
as  such  assessed  at  law.(s)  So  where  a  tenant 
acrreed  with  his  landlord  not  to  raise  a  certain 
building  higher  under  a  penalty  of  double  rent  to 
be  recovered  by  distress,  even  a  Court  of  Equity 
treated  that  as  not  in  the  nature  of  a  penalty  but 
of  liquidated  damages.(^)  So  where  it  is  agreed 
that  if  a  party  do  such  a  particular  thing,  such  a 
sum  shall  be  paid  by  him,  there  the  sum  stated  may 
be  treated  as  liquidated  damages,  (u) 

On  the  other  hand,  where  the  contract  contains  a 
variety  of  stipulations  of  different  degrees  of  impor- 
tance, and  one  large  sum  is  stated  at  the  end,  to  be 
paid  on  breach  of  performance  of  any  of  them,  this 
must  be  considered  as  a  penalty,(v)  as  where  a  con- 
tractor agrees  to  pay  £1,000  as  liquidated  damages 
in  case  his  contract  shall  not  be  in  all  things  duly 
performed.  (ir;) 

The  question  of  "  penalty "  or  "  liquidated 
damao-es  "  is  one  of  intention  to  be  gathered  from 
a  consideration  of  the  entire  instrument  and  de- 
cided by  the  judge  as  a  question  of  law,  and  Courts 

(«)  Lea  V.  Whitaker,  L.  R.,  8  C.  P.  70. 

(0  Gerrard  v.  O'Reilly,  3  Dru.  &  War.  414 ;  see  Lessee  of  Ash- 
town  V.  White,  11  Ir.  L.  R.,  400,  M.  R. 

(m)  Astley  v.  Weldon,  2  B.  &  P.  353,  per  Mr.  Justice  Heath, 
approved  of  by  L.  J.  James  in  In  re  Newman  ea;jja/te  Capper,  L.  R., 
4Ch.  D.  at  p.  731. 

(y)  Magee  v.  Lavelle,  L.  R.,  9  C.  P.  107,  per  Lord  Coleridge,  C,  J. 
Kemble  v.  Farron,  G  Bingh.  141. 

{w)  In  re  Newman  ex  parte  Capper,  L.  R.,  4  Ch,  D.  724;  25  W.  R. 
244,  A.  C. 


278  RELIEF  AGAINST  FORFEITURE. 

stipnia-    do  not  feel  themselves  bound  by  the  parties  them- 

tions  not  f>f  ,,       ^ 

Essenceoj  selves  Calling  a  thing  " liquidated  damaoes     where 

'   the  nature  of  the  thing  and  the  manifest  intention 

is  tliat  it  shall  be  a  penalty  ;(ic)    nor  conversely  by 
their  calling  that  a    "  penalt}^  "    which   is  plainly 
intended  as  liquidated  damages.(^) 
Keiief  (331.)  As  regards  relief  against   forfeitures    the 

forfeiture,  principal  instances  of  such  relief  as  given  in  equity 
ai'ose  in  case  of  mortgages  of  estates,  which  at  law 
were  forfeited  for  non-payment  of  a  specific  sum 
of  money  on  a  certain  day,  but  which  in  equity 
were  redeemable  on  reasonable  terms  until  fore- 
closure. The  ejectment  statutes  follow  this  analogy 
in  respect  to  the  forfeiture  of  leases  for  non- 
payment of  rent,  limited  by  certain  conditions. 
The  statute  22  &  23  Vic,  c.  35,  s.  4,  extends  it  to 
forfeitures  for  breaches  of  covenants  or  conditions 
to  insure  against  loss  or  damage  by  fire,  in  cases 
where  no  actual  loss  or  damage  has  happened,  and 
the  breach  has  in  the  opinion  of  the  Court  been 
committed  through  accident  or  mistake,  or  otherwise 
without  fraud  or  gross  negligence,  and  there  is  an 
insurance  on  foot  at  the  time  of  the  application  to 
the  Court  in  conformity  with  the  covenant.  The 
ordinary  principle  of  a  Court  of  Equity  was,  not  to 
relieve  against  forfeitures  incurred  by  breach  of 
covenants  in  leases  where  a  money  payment  was 
not  complete  compensation;  ex.  (jr.,  a  covenant  to 
repair,(5;)  or  to  build  within  a  given  time,(a)  or  to 
cultivate  in  a  husbandlike  manner,(?;)  unless  the 
forfeiture  was  brought  about  by  surprise,  mistake,  or 

(x)  Boys  V.  Ancell,  7  Scott,  364  ;  Magee  p,  Lavelle,  L.  R.,  1)  C.  1'. 
107.     In  re  Newman  ex  parte  Capjier. 

(^)  Sparrow  v.  Paris,  7  Hurl.  &  Norm,  at  p.  5Lt7,  yw/'  Cliauiiel],  B. ; 
Sainter  v.  Ferguson,  7  C.  B.  727. 

(?)  Gregory  v.  Wilson,  1)  Hare,  GS3. 

00  Croft  V.  GoUlsniid,  24  Beav.  312. 

(b)  Hills  V.  Rowland,  4  De  Ge.x,  ilac.  &  G.  430. 


LIQUIDATED  DAMAGES  AND  OPTIOX.  279 

inevitable  accident,  or  conduct  on  the  part  of  tlie    supuia. 
landlord,  by  which  the  lessee  was  misled  into  sup-  Essence  of 

posing  that  the  covenant  would  not  be  insisted  on,       *' 

and   it   would   be  inequitable  for  the  landlord  to 
do  so.(c) 

(332.)  But  where  there  is  an  express  covenant  or  Liquidated 
agreement  not  to  do  a  certain  act,  ex.  gr.,  not  to  and^opTion. 
plough  up  more  than  a  given  number  of  acres 
within  a  certain  time,  and  a  penalty  or  penal  rent 
is  attached  to  the  doing  of  the  act ;  in  such  a  case 
equity  would  prohibit  the  party  from  violating  his 
contract,  and  would  not  give  him  an  option 
which  the  contract  did  not  intend  to  give  him,  of 
paying  the  penalty  in  order  to  do  the  act  covenanted 
against.  If  the  act  is  already  done,  the  penalty 
must  be  paid  and  the  amount  is  unimportant. (cZ) 

The  general  rule  of  equity  is,  that  if  a  thing  be 
agreed  upon  to  be  done,  although  there  is  a  penalty 
annexed  to  secure  its  performance,  yet  the  very 
thing  itself  must  be  done,  and  the  party  will  not  be 
allowed  to  pay  the  forfeit  and  avoid  liis  agreement. 
So  if  a  man  covenant  to  abstain  from  doina*  an  act, 
just  as  in  the  converse  case,  he  cannot  elect  to  break 
his  engagement  by  paying  for  his  violation  of  the 
contract. (e)  This  had  been  decided  by  the  House 
of  Lords  in  the  City  of  London  v.  Pugh,(/)  on  the 
ground  that  if  a  man  covenants  not  to  do  an  act,  his 
payment  of  a  penalty,  annexed  to  his  doing  that 
act,  does  not  oust  the  Court  of  Equity  of  its  juris- 

(c)  See  Hughes  v.  Metropolitan  Railway  Company,  L.  R.  1  C.  P.  D. ; 
24  W.  R.  652,  A.  C. ;  S.  C.  25  W.  R.  680,  H.  L. 

(cZ)  See  French  v.  Macale,  2  Dru.  &  War.  at  pp.  27-1-5,  per  Sir 
Edward  Sugden,  L.  C,  S.  C.  4Ir.  Eq.  Rep.  512  ;  see  Maxwell?;.  Mitchell, 
1  Ir.  Eq.  Rep.  368,  M.  R. ;  French  v.  Macale,  2  Dr.  &  War.  at 
■p.  281. 

(e)  Per  Sir  Edward  Sugden,  L.  C,  French  v.  Macale,  2  Dru.  &  War. 
at  pp.  274-5. 

(/)  City  of  Loudon  v.  Pugh,  i  Bro.  P.  C.  395,  Toml.  Ed. 


280  LIQUIDATED  DAMAGES  AND  ELECTION. 

stipuin-  diction  to  prevent  his  doing  the  act,  and  the  amount 
'Sr/o/ of  the  penalty  cannot  influence  the  Court. ((/)  In 
coniracts.  ^j^^  ^^^^  ^f  Molouj  V.  Quail,(/i)  whcrc  a  lease  con- 
tained a  clause  that  it  should  not  be  lawful  for  the 
tenant  to  till  or  turn  up  more  than  ten  acres  of  the 
land  at  any  one  time  without  the  landlord's  consent, 
under  a  penalty  of  £12  for  each  acre  to  be  turned 
up,  was  treated  as  liquidated  damages,  and  an  inter- 
locutory injunction  to  restrain  the  breaking  up  was 
refused ;  but  Sir  Edward  Sugden  considered  it  in 
direct  opposition  to  all  the  decisions,  including  that 
of  the  House  of  Lords,  (i) 

The  amount  of  the  sum  to  be  paid,  however  dis- 
proportionate to  the  damage  contemplated,  ought  to 
have  no  operation  on  the  action  of  the  Court  in 
restraining  an  act  which  the  defendant  covenants 
not  to  do.(jf) 

On  the  other  hand,  where  the  contract  allows  the 
party  to  do  such  an  act  on  payment  of  an  additional 
rent  as  an  equivalent,  whether  it  be  called  penalty  or 
liquidated  damages,  equity  in  that  case  would 
neither  restrain  the  doing  of  the  act,  nor  the  enforce- 
ment of  the  (so-called)  penalty,  because  in  fact  it 
was  intended  as  stipulated  damages,  (/o)  In  certain 
cases  a  statute  imposes  a  penalty  for  breach  of  a 
duty,  to  be  recovered  by  a  common  informer,  and 
this  may  afiect  the  right  of  an  individual  who  has 
suffered  injury  from  the  neglect  to  sustain  an  action 
for  damages  for  breach  of  the  same  duty.(^) 

(<7)  Per  Sir  Edward  Sugden,  in  French  v.  Macalc,  2  Dru.  &  War. 
p.  281. 

(/t)  Molony  v.  Quail,  4  L.  R.,  N.  S.  107,  M.  K. 

(i)  French  v.  Macule,  at  p.  283. 

0')  S.  C.  See  per  Sir  Edward  Sugden,  at  p.  2S0. 

(A)  French  v.  Macale,  ubi  supra ;  Forbes  v.  Carney ;  Wallis  by 
Lyne,  38. 

(/)  See  Atkinson  v.  Newcastle  Waterworks  Company,  25  W.  K. 
7'J-l,  A.  C,  where  tiiis  subject  is  discuseed. 


[     281     ] 
CHAPTER  XXXYIII. 

MANDA3IUS  AND   INJUNCTION. 

Section  28.     Subsection  (8). 

Jilandamus. 

333.  Mandamus,  Injunction  and  Receiver,  p.  281. 

334.  Prerogative  Mandamus,  282. 

335.  Statutory  action  of  Mandamus,  282. 

336.  Mandamus  under  Judicature  Act,  283. 

Injunction. 

337.  Injunction  under  Common  Law  Procedure  Act,  284. 

338.  Mandatory  Injunction,  2S5. 

339.  Injunction  under  Judicature  Act,  287. 

340.  Against  Waste  or  Trespass,  288. 

341.  Distinction  between  Waste  and  Trespass.  288. 

342.  Trespass  by  defendant  in  possession,  289. 

343.  Trespass  on  Plaintiff  in  possession,  291. 

344.  In  Protection  of  other  legal  righits,  2y2. 

345.  Application  for  Mandamus  or  Injunction,  293. 

346.  By  Defendant,  294. 

347.  Not  against  Third  Person,  295. 

348.  On  Terms,  296. 


(833.)  The  section  28  of  the  T.  A. (a)  subsection  (8)  Mandamus. 

injunction, 

enacts  that : —  and 

"A  mandamus,  or  an  injunction,  may  be  granted,  '■'^'=^'^*^''- 
or  a  receiver  appointed,  by  an  interlocutory  order 
of  the  court,  in  all  cases  in  which  it  shall  appear 
to  the  court  to  be  just,  or  convenient,  that  such 
order  should  be  made;  and  any  such  order,  may 
be  made  unconditionally,  or  upon  such  terms  and 
conditions  as  the  court  shall  think  just ;  and  if  an 
injunction  is  asked,  either  before,  or  at,  or  after  the 
hearing  of  any  cause  or  matter,  to  prevent  any 
threatened  or  apprehended  waste,  or  trespass,  such 
injunction  may  be  granted,  if  the  court  shall  think 
fit,  whether  the  person  against  whom  such  injunc- 
tion 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 

(a)  J.  A.,  1877,  s.  28,  subs.  (8);  J.  A.,  1873,  s.  25,  subs.  C8). 


282 


PREEOGATIVE   MANDAMUS. 


Injunction. 

Preroga- 
tive 
mandamus. 


Mandamus  whether  the  estates  claimed  by  both,  or  by  either 
°'"^       of  the  parties  are  legal  or  equitable." 

(334.)  The  Prerogative  Writ  of  Mandamus  issued 
from  the  Court  of  Queen's  Bench  only,  to  compel 
the  performance  of  some  particular  duty,  Avhere  a 
public  inconvenience  or  a  private  wrong,    was  oc- 
casioned by  the  omission   of  a    public  or   official 
duty,  or  one  imposed  by  Act  of  Parliament  for  the 
benefit    of    individuals,   and   where    no   sufficient 
remedy  was  afforded  by  action  of  damages.     Thus, 
in  more  recent  times,  it  has  been  applied  to  compel 
railway  and  other  public  companies  to  do  certain 
works  for  the  benefit  of  individuals — to  make  com- 
munications  between  lands   intersected,   to  make 
roads,  and  as  directed  by  their  private  acts.     The 
Common  Law  Procedure  Act,  1856,  sec.  78,  authorized 
the  Court  of  Queen's  Bench  to  make  the  rule  abso- 
lute  for   a  mandamus    in  the    first  instance,  if  it 
thought  fit  without  the  tedious  and  expensive  form  of 
a  preliminary  application  for  a  return,  and  an  action 
at  law  brought  to  try  its  falsity.     The  writ  might 
bear  date  on  the  day  of  issue,  and  be  made  return- 
able forthwith,  and  the  provisions  of  the  Common 
Law   Procedure    Act,    1853,   as    to   pleading    and 
practice,  were  made  applicable  to  the  Prerogative 
Mandamus  by  Common  Law  Procedure  Act,  1856, 
s.  79.(6) 
statutory         (335.)  By  the  Common  Law  Procedure  Act,  1856, 
ralndamu-.  scc.  70,  a  plaiutift^  might  in  any  Writ  of  Summon 
and  Plaint  in  any  personal  action,  i.e.,  other  than 
for  replevin  or  ejectment,  claim  a  Writ  of  Mandamus 
commanding   the  defendant  to  fulfil  any  duty  in 
the  fulfilment  of  which  the  plaintifi"  was  personally 
interested,  and  by   the  non-perlbrmance   of  which 
he  showed  he  sustained  or  might  sustain  damage. (o) 

{h)  See  Ferg.  C.  L.  Fro.  Act,  2iid  Ed.,  p.  'MG. 
(c)  lb.,  p.3G0. 


MAXDAMUS  UNDER  JUDICATURE  ACT.  283 

Mandamus  became,  in  ftict,  a  new  form  of  personal  3randa7)ius 
action  which  might  be  brought  in  any  of  the  Com-  injunction. 
mon  Law  Courts,  by  means  of  which  the  court  might 
give  redress  similar  to  what  a  Court  of  Equity 
formerly  did,  to  protect  or  vindicate  common  law 
rights.  But  in  practice  the  Statutory  Writ  of  Man- 
damus was  held  applicable  to  enforce  fulfilment  of 
duties  of  a  public  nature  only,  as  distinguished  from 
such  as  arise  simply  by  personal  contract,  such 
as  an  agreement  to  execute  a  lease,  the  enforce- 
ment of  which  belonged  to  Courts*  of  Equity,  (e) 
Whilst  it  did  apply  to  compel  a  public  company 
to  enter  the  name  of  a  party  on  a  register  as  a  share- 
holder as  required  by  their  charter,  f/)  The  plain- 
tiff should  be  personally  interested  in  the  duty  and 
have  no  other  equally  effectual  remedy. ((/)  It  was 
not,  however,  necessary  that  actual  damage  had 
been  akeady  sustained. (A.)  The  writ  could  only  be 
issued  after  j  udgment,  and  seemed  to  be  almost  con- 
terminous in  its  scope  with  the  Prerogative  Writ. 

(330.)  The  statutory  action  seems  to  be  open  still  Mandamus 
and  may  be  instituted  by  Writ  of  Summons  with  judicature 
an  indorsement  claiming  damages  and   a  Writ  of 
Mandamus,  (i) 

To  what  class  of  cases  the  subsection  (8)  was 
intended  to  apply  is  not  so  clear,  nor  whether  it 
will  be  confined  to  the  cases  in  which  the  Writ  of 
Mandamus  has  been  used  in  the  Common  Law 
Courts  under  the  Common  Law  Procedure  Act. 

Under  the  terms  of  the  subsection  (8)  the  writ 
may  be  issued  by  every  branch  of  the  court,  in  all 
cases  in  which  it  shall  appear  to  the  court  just  or 

(e)  See  Benson  v.  Paul,  6  El.  and  Bl.  273. 
•    (/")  Norris  v.  Iri-h  Land  Co..  8  El.  and  Bl.  512. 
O7)  Bush  V.  Beavan,  1  H.  and  C.  500. 

(A)  Fotherby  v.  Metropolitan  Railway  Co.,  L.  R.,  2  C.  P.  188. 
(j)  See  Form,  Schedule  A,  part  2,  sec.  iv. 


284  INJUNCTION — COMMON  LAW  PKOCEDURE. 

Mandamus  Convenient  by  an  interlocutory  order  as  well  as  by 
Injunction.  ^  final  judgment  and  probably  without  it  being 

claimed  by  the  writ  or  by  the  pleadings. 

A  Vice-Chancellor  in  a  winding  up  matter  can 

order  a  Writ  of  Mandamus  to  issue  to  compel  the 

directors  of  the  company  to  convene  a  meeting  of 

shareholders.(j) 

Injunction       (337.)  The Commou  Law  Proccdurc  (Ireland)  Act, 

Common     lS56,(/i;)   enabled   the   Common   Law  Courts  or  a 

Law  Pro-    J  udo'e,  in  all  cases  of  breach  of  contractor  other 
cedure  Act.  o   ' 

injury,  where  an  action  could  be  maintained  and  had 
been  brought  by  the  party  injured  for  damages,  to 
grant  an  injunction  against  the  repetition  or  con- 
tinuance of  the  breach  of  contract  or  other  injury, 
or  the  committal  of  any  breach  of  contract  or  injury 
of  the  like  kind  arising  out  of  the  same  contract  or 
relating  to  the  same  property  or  right,  or  an  ex  parte 
application,  either  before  or  after  judgment,  on  such 
terms  as  to  the  duration  of  the  writ,  keeping  an 
account,  giving  security  or  otherwise,  as  the  Court 
might  think  reasonable  and  just. 

This  stcitutory  injunction  was  confined  to  cases  in 
which  an  injury  had  actually  been  committed  and 
not  merely  threatened,  and  an  action  brought  to 
recover  damages  in  respect  of  it.  It  could  hardly 
be  had  in  an  independent  action  seeking  it  and 
nothing  more. 

The  Patent  Amendment  Act,  1852,(/)  likewise 
enabled  Courts  of  Law  in  any  action  for  infringe- 
ment of  letters  patent,  to  make  such  order  for  an 
injunction,  inspection,  and  account,  as  it  thought 
fit.(m)     The  statute  25  and  26  Vic,  c.  88,(71)  gave 

(y)  Paris  Skating  Kink  Co.,  L.  11.,  G  Chan.  D.  731 ;  2.j  W.  K.  707  ; 
1G8,  V.  C.  II. 

(k)  19  &  20  Vic,  c.  102,  s.  84. 

(0  15  it  16  Vic,  c.  82,  s.  42. 

(m)  See  in  Equity,  Calcraft  v.  West,  2  Jo.  &  Lat.  123,  8  Ir.  Eq. 
Rep.  74. 

(n)  S.  2. 


MANDATORY   INJUNCTIONS.  285 

like   power   as    to  trade   marks,  similar    to  those  Mandamus 
exercised  by  the   Court  of  Chancery(o)  iu  case  oi  injunction. 
fraudulent  imitation  of  trade  marks,  (o)  or  violation 
of  copyright.(29) 

(338.)  It  is  probable  that  the  subsection  (8)  intends  Mandatory 

\  '  i-  ...         lujuuction. 

to  confirm  and  extend  the  valuable  jurisdiction 
claimed  by  Courts  of  Equity,  and  exercised  some- 
what indirectly  in  the  form  of  what  was  called  a 
mandatory  injunction,  partaking  of  the  character 
both  of  the  mandamus  and  of  the  injunction;  a 
jurisdiction,  at  one  time  somewhat  doubtful  and 
always  exercised  in  a  roundabout  form  ;  for  example, 
to  abate  a  nuisance  by  removing  a  dam  across  a 
river,((2')  to  restore  land  to  its  original  condition,(r) 
to  permit  plaintiff  to  go  on  defendant's  land  to  repair 
a  watercourse. (s)  The  most  common  instance  of 
this  form  of  injunction  was  in  respect  of  the 
obstruction  of  ancient  lights,  and  it  usually  assumed 
the  shape  of  a  decree  or  order  enjoining  the  defendant 
not  to  continue  the  wrongful  act,  or  to  keep  erected 
so  much  of  his  wall  or  building  as  was  opposite  to 
the  premises  of  the  plaintiff  so  as  in  any  manner  to 
obstruct  any  of  the  ancient  lights  or  windows  of 
the  same.  Where  the  buildings  have  been  fully  or 
substantially  completed  before  the  bill  was  filed,(^) 
or  before  the  interlocutory  order  has  been  made,  a 
mandatory  injunction  to  pull  them  down  was  not 
usually  granted,  although  an  inquiry  as  to  damages 

(o)  See  cases  in  Equity,  Foot  v.  Lea,  13  Ir.  Eq.  Rep.  484,  M.  K. ; 
Kinahan  v.  Bolton,  15  Ir.  Chan.  Rep.  75,  L.  C. 

(/j)  See  Turner  v.  Robinson,  10  Ir.  Chan.  Rep.  121,  M.R.  S.  C;  lb. 
510  A.  C.  copying  picture  of  the  death  of  Chatterton. 

(2)  Laird  v.  Murray,  3  Ir.  Jur.  244,  L.  C. 

(?•)  Armstrong  v.  Waterford  Railway  Company,  10  Ir.  Eq.  Rep.  GO, 
M.  R. 

(s)  M'Swiney  v.  Haynes,  1  Ir.  Eq,  Rep.  322,  M.  R. 

{t)  Isenberg  v.  East  India  House  Estate  Company,  3  De  Gex,  Jo.  & 
Smith,  263 ;  Lady  Stanley  of  Alderley  v.  Earl  of  Shrewsbury,  L.  R. 
19  Eq.  G16,  V.  C.H. 


286  MANDATORY   INJUNCTIONS. 

Man,jnwus  might  have  been  given,(u)    and  where  the}^  are 
iHjanaion.  actually  completed,  even  so  late  as  at  the  time  of 

the  hearing  of  the  cause,  it  was  not  a  matter  of 

course  to  grant  such  an  order.(t')     But  it  may  be 
where  works  were  continued  after  due  notice  from 
the  Court  on  an  interlocutory  application   that  it 
was  at  the  peril  of  the   party,  and  that  the  cause 
should  be  heard  as  if  no  further  progress  had  been 
made,(iy)  the  application  for  the  injunction  being 
directed  to  stand  for  the  hearing,  and  the  defendant 
being  put  under  terms  to  abide  such  order  as  the 
Court  may  make  at  the  hearing,  to  remove  any  por- 
tions of  the  building  in  course  of  erection.  In  a  recent 
case  where  the  building  of  a  porch  was  actually 
complete  before  bill  filed,  but  after  express  notice 
from  the  plaintiff,  the  Court  ordered  its  removal. (a?) 
In  a  certain  class  of  cases  instead  of  a  mandatory 
injunction  the  Court  has  a  discretion  under  Lord 
Cairns'  Act  to  substitute  damages  instead  of  an 
injunction  not  on  interlocutory  motion  but  at  the 
hearino-,  as  where  the  injury  done  was  of  a  com- 
paratively trifling  nature  compared  with  the  injury 
wliich  would  be  inflicted  on  the  defendant  by  the 
crranting  of  the  injunction,  and  to  prevent  a  plaintiff 
from   practising   oppression    or   extortion   on    the 
defendant  by  the  exercise  of  his  legal  right.(//) 
But  acquiescence,  or  unwarrantable  delay  amount- 


(?«)  CuiTiers' Company  V.  Corbett,  2  Dm.  &  Sma.  3G0;  See  Lady 
Stanley  of  Alderley  v.  Earl  Shrewsbury,  vM  supra,  -where  an  inquirj' 
-vvas  directed  though  not  prayed  by  the  Bill. 

(v)  Ajmsley  v.  Glover,  L.  R.  18  Eq.  544,  per  Sir  Geo.  Jessell.  M.  R. ; 
Curriers'  Company  v.  Corbett,  2  Dr.  and  Sm.,  uhi  xvpra. 

(w)  See  Mackey  ;;.  Scottish  Widows'  Fund  Company, Ir.  Hep.  10  Eq. 
116,  V.  C.  S.  C.  Ch.  Ap.  Ct.  7  July,  1877. 

(x)  Morris  v.  Grant,  24  W.  R.  55  V.  C  H. 

(y)  See  Smith  v.  Sniith.  L.  R.  20  Eq.  at  p.  504,  per  Sir  Geo.  Jc?scll, 
M.  U.  ;  Aynsley  v.  Glover,  L.  R.  18  Eq.  at  p.  555,  Sir  Geo.  Jessel, 
M.  R. 


INJUNCTION  UNDER  JUDICATURE  ACT.  287 

ino-  to  acquiescence,  on  the  part  of  the  plaintiff  wonhl  Mandamus 
be  no  reason  why  the  court  should  reduce  the  injunction. 
greater  to  the  lesser  remedy,  because  if  the  plaintiff 
has  lost  the  right  to  a  mandatory  injunction  he  has 
also  lost  his  right  to  damages.(5r)  Nor,  on  the 
other  hand,  in  granting  a  mandatory  injunction  the 
court  does  not  mean  that  a  man  injured  could  not 
be  compensated  by  damages,  but  that  the  case  was 
one  in  which  it  is  difficult  to  assess  damages,  and 
in  which,  if  it  were  not  granted,  the  defendant 
would  be  allowed  practically  to  deprive  the  plaintiff 
of  his  property  whether  he  wished  or  not,  provided 
only  he  gives  him  a  price  for  it.  Since  Lord 
Cairns'  Act,  though  the  court  has  a  discretion  to 
substitute  damages  for  the  injunction,  it  will  be  so 
exercised  as  to  prevent  the  defendant  doing  a  wrong- 
ful act,  and  thinking  he  can  merely  pay  damages 
for  it.  (a) 

On  the  other  hand,  even  since  the  Judicature  Act, 
an  injunction  to  restrain  obstruction  of  ancient  lights 
will  not  be  granted  unless  the  plaintiff  proves  sub- 
stantial damage.(6) 

(339.)  Under   the    Judicature  Act,    section    28,  injunction 
sub.  (8),  an  injunction  may  be  granted  by  every  jua^ature 
branch  of  the  High  Court,  by  an  interlocutory  order  ^''^^ 
in  all  cases  in  which  it  shall  appear  to  the  court  to 
be  just  or  convenient  that  such   order  should  be 
made,  either  unconditionally  or  upon  such  terms  and 
conditions  as  the  court  shall  think  just.     How  far 
this  is  intended  to  enlarge  the  jurisdiction  of  the  court 
in  issuing  writs  of  injunction  and  to  extend  it  to 
new  classes  of  rights,  and  new  subject-matter  may 
be  doubtful.     It  is  probable  it  will  still  be  confined 
to  cases  of  injury  to  ])roperty  or  health  or  enjoy- 

(z)  See  Smith  v.  Suiith  L.  R.,  20  Eq.,   at  p.  oOa,  per   Sir  Geo. 
Jesse),  M.  R. 
(rt)   lb. 
Q>)  Kind  V.  Rudkeu,  L.  R.,  G  Chan.  D.  ICO,  Fry,  J. 


2^8  INJUNCTION  AGAINST  WASTE  AND  TRESPASS. 

Mandamus  meiit  of  life  in  wliich  damages  at  law  would  not  be 
Injunction,  a  Complete  compensation  for  the  wrong  complained 
of,  or  to  prevent  the  continuance  of  vexatious  acts, 
leaving  mere  personal  injuries  of  a  character  such 
as  libel  or  slander  to  be  redressed  as  heretofore,  and 
otherwise  than  by  the  extreme  remedy  of  injunc- 
tion. As  for  example  the  publisher  of  a  pamphlet 
drawing  unfavourable  conclusions  with  regard  to  the 
plaintiff  (a  company),  and  alleged  to  be  injurious  to 
their  trade  or  business,((:Z)  or  an  advertisement  stat- 
ing that  an  article  introduced  by  the  plaintiff  was 
an  infringement  of  the  defendant's  patent(e). 

As  we  have  seen  no  injunction  can  now  be 
granted  by  the  High  Court  of  Justice  to  restrain 
proceedings  in  any  cause  or  matter  pending  in  the 
High  Court  itself  or  the  Court  of  Appeal,  but  the 
matter  of  equity  on  which  an  injunction  might  have 
been  had  before  the  Judicature  Act  is  to  be  relied 
on  by  way  of  defence  to  the  action.  (/) 
Against  ('340.)  If  an  ini unction  is  asked  either  before,  or 

\va>tf  or  ^  '  . 

trespass,  at,  or  after  the  hearing  of  any  cause  or  matter  to 
prevent  any  threatened  or  apprehended  waste 
or  trespass,  such  injunction  may  be  granted  if  the 
court  think  fit,  whether  the  person  against  whom 
the  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 
or  whether  the  estates  claimed  by  both  or  by  either 
of  the  parties  are  legal  or  equitable. ((/) 
Distinction  (341.)  The  Common  Law  notion  of  waste  rested 
waste  anil    ou  the  privity  of  estate,  whereas  spoliation  or  injury 

trcsiiats.        . __^ 

{(D  See  Prudential  Assurance  Company  v.  Knott,  L.  R.,  10  Ch,  at 
p.  144. 

((>)  See  Ilamniorsmitli  Skating  IJink  Company  v.  Dublin  Skatinff 
r.ink  Company,  Ir.  Rep.,  10  Eq.,  2^5,  V.  C. 

(/•)   IVr?^  ante  (250),  p.  21,3. 

(</)  J.  A.,  1877,  s.  28,  sub.  (8)  ;   J.  A.,  1873,  s.  25,  sub.  (8). 


WASTE  AND   TRESPASS.  289 

to  property  by  strangers,  in  no  privity  of  estate  Mandamus 
with  the  complainant,  was  regarded  as  a  mere  tres-  ivjnnrHon. 
pass.  The  ground  of  relief  by  way  of  injunction 
in  regard  to  the  former,  i.e.,  waste,  originated  in  the 
position  of  confidence  and  duty  in  which  the  person 
rightfully  in  possession  of  a  particular  estate  stood 
towards  others,  to  protect  the  inheritance,  and  when 
this  trust  was  abused,  by  the  tenant  himself  com- 
mitting acts  injurious  to  the  property,  equity  inter- 
posed by  injunction  and  by  giving  an  account  against 
the  party  guilty  of  the  waste.  On  the  other  hand 
where  there  was  an  entire  want  of  privity,  or  equity 
affecting  the  conscience,  between  a  plaintiff  entitled 
at  law  and  a  defendant,  the  Court  of  Chancery 
did  not  interfere,  and  as  regards  ordinary  acts  of 
spoliation  committed  by  persons  claiming  by  adverse 
title,  it  suffered  redress  to  be  sought  at  law  by  way 
of  damages.  The  tendency  of  modem  decisions, 
however,  had  been  to  break  down  this  rather  re- 
fined distinction  between  waste  and  trespass  in 
these  respects,  (a)  Originally  in  equity,  and  at  law 
always,  as  regards  things  excepted  from  the  demise, 
the  tenant  in  possession  was  regarded  as  a  stranger, 
without  privity  of  estate  with  his  landlord,  and 
his  wrongful  acts  of  injury  to  the  things  excepted 
were  regarded  as  mere  trespass  and  not  as  acts  of 
waste  to  be  prevented  by  injunction. (6) 

(342.)  The  cases  of  injunctions  against  trespass.  Trespass  by 
have  been  classified  under  two  heads,  first  where 
the  defendant  is  in   possession,  second  where  the 
plaintiff  is  in  possession  and  asks  the  court  to  pro- 
tect his  estate. 

In  the  former  case,  i.e.,  where  the  defendant  is  in 
possession,  the  court  was  more  reluctant  to  entertain 

(a)  Lowndes  v.  Bettle,  33  L.  J.  X.  S.  Ch.  451;  12  W.  R.,  399;  10 
Jur.  N.  S.  226. 

(6)  Peters  v.  Vivian,  8  East.  190. 

O 


in  posses- 
sion. 


290  TRESPASS   BY  DEFENDANT   IN   POSSESSION. 

Mandamus  a  siiit  for  an  injunction  than  where  he  was  not 
jnjunction.  in  possessioii.  In  Talbot  (Earl)  v.  Hope  Scott,(d5.) 
the  plaintiff  was  out  of  possession  claiming  under 
title  of  law,  pending  a  claim  to  the  peerage  Arhich 
was  then  before  the  House  of  Lords,  and  he  sought 
a  Receiver  over  the  rents  and  an  injunction  to  re- 
strain v,^aste  against  the  defendant  who  was  in 
possession,  and  the  court  held  that  it  would  not 
interfere  at  the  instance  of  a  person  so  claiming,  there 
being  no  privity  between  the  parties,  or  restrain 
waste  except  malicious  or  destructive  waste,  such 
as  stripping  the  estate  of  its  timber,  pulling  down 
the  mansion  house  upon  it,  or  other  like  acts,  which 
no  owner  would  do,  or  which  would  destroy  the 
property  before  the  acts  could  be  arrested  at  law  ; 
but  in  the  latter  class  of  cases  it  would  interfere, 
although  the  plaintiff  was  out  of  possession,  and 
his  title  was  denied  on  oath  by  the  defendant.  (6) 
In  such  a  case  the  plaintiff  should  satisfy  the 
court  that  there  was  an  action  pending  at  law  be- 
tween him  and  the  defendant  in  possession  which 
will  try  the  right  as  between  him  and  the  defend- 
ant.(c)  Where  the  defendant  acquired  possession 
by  fraud  or  collusion  with  the  tenants  of  the  estate, 
the  court  might  interfere  to  restrain  acts  of  trespass 
in  the  nature  of  waste  ;  but  what  Sir  Anthon}"  Hart 
called  "  a  possession  by  favour  of  the  occupiers"(c^) 
as  wanting  the  quality  of  an  authorized  possession, 
where  a  devisee  was  let  into  possession  by  the  oc- 
cupying tenants  to  the  prejudice  of  the  heir-at-law, 
has  been  criticised  and  disputed  unless  it  be  con- 
fined to  the  case  of  a  fraudulent  or  forcible  posses- 
sion which  the  law  will  not  recognise  ;  but  would  be 

(«)  Talbot  (Earl)  v.  Hope  Scott,  4  K.  and  J.  9G.,  V.  C.  Wood. 
(6)  Ilaigh  V.  Jagger,  2  Coll.  231,  V.  C.  K,  Bruce, 
(c)  Talbot(Earl)  r.  Hope  Scott,  4  K.  and  J.  at  p.  lo5,  ;>erV.  C.  Wood. 
(J)  Lloyd  V.  Lord  Trimleston,  2  Mol.  81. 


TRESPASS — PLAINTIFF   IN   POSSESSION.  291 

inapplicable  to  the  case  of  a  devisee  obtaining  pos-  Mandamus 
session  merely  by  the  tenants  attorning  to  him  in  lujuncuoa. 
the  ordinary  way,  under  which  he  acquires  a  riglit       ' 
and  title  at  law,  to  hold  the  estate  until  some  other 
person  can  show  that  he,  as  heir  or  otherwise,  has 
a  better  right   to   possession.  (6)      The   case  of  a 
tenant   to    the  plaintiff  entering  and    committing 
waste  upon  a  neighbouring  bog  belonging  to  the 
plaintiff  upon  which  he  had  no  right  to  enter  or 
cut  turf,  would  come  nearer  to   that  of  a  fraudu- 
lent   entry    and    such   has    been    restrained    by 
injunction.(c) 

(S^S.)  Where  the  plaintiflf  is  himself  in  possession  Trespass  on 
the  defendant  may  either  claim  under  colour  of  right  possession. 
or  he  may  be  an  absolute  stranger.(J)  If  the 
defendant  be  a  mere  stranger  and  trespasser,  an 
injunction  used  not  to  be  granted  unless  the  stranger 
was  in  collusion  with  the  actual  tenant,  or  the  mis- 
chief threatened  was  irreparable,  or  taking  away  of 
the  substance  of  the  inheritance. (e) 

Where  the  plaintiff  being  in  possession  the  tres- 
pass is  done  by  invading  his  possession  under 
colour  of  right  or  title,  ex.  gr.,  a  railway  company 
taking  lands  under  the  compulsory  powers  given  by 
Parliament, (/)  or  as  in  Lowndes  v.  Bettle,((/)  where 
plaintiff  and  his  ancestors  were  in  possession  for 
eighty  years,  and  defendant  claiming  as  heir-at-law 
entered  upon  it,  and  exercised  acts  of  ownership 
by  felling  timber,  he  was  restrained. 

(6)  Talbot  (Earl)  v.  Hope  Scott,  4  K.  and  J.  at  p.   117,  per   V.   C. 
Page-Wood. 

(c)  See  Wrixon   v.  Condran,  1    Ir.   Eq.   Rep.  at   p.  381.  per    Sir 
M.  O'Loghlen,   M.  R. ;   but  see  Sandys  v.  Murraj^  1   Ir.  Eq.    Rep., 
29   Eq.  Ex. 
.   (d)  Lowndes  v.  Bettle,  33  L.  J.,  Ch.  451,  per  Kindersley,  V.  C. 

(e)  See  cases  mentioned  by  V.  C.  Kindersley  in  Lowndes  v.  Bettle. 

(/)  See  Davenport  v.  Davenport,  7  Hare,  217,  V.  C.  Wigram. 

{(/)  Lowndes  v.  Bettle,  83  L.  J.,  Ch.  531. 

o  2 


292  TRESPASS — PLAINTIFF   IN    POSSESSION. 

Mamimnus  In  some  cases  it  is  difficult  to  say  which  party  is 
ivjw.rtion.  in  possession  as  in  Robinson  v.  Lord  Byron,(/0 
wliere  plaintiff  was  in  possession  of  his  own  water- 
mills,  and  defendant  was  the  owner  of  the  water 
above  the  mills,  and  to  vex  the  plaintiff,  sometimes 
kept  back  the  water  from  the  mills  and  sometimes 
delufred  them,  and  there  the  Court  restrained  Lord 
Byron  from  so  using  the  stream  as  to  do  mischief 
to  the  plaintiff's  mills. 

In  Stanford  u  Ilurlstone('i)  the  plaintiff  was  in 
possession  for  twenty  years,  and  defendant  claiming 
title  to  the  estate  had  brought  an  action  of  eject- 
ment against  him  in  which,  however,  he  elected  to 
be  non-suited.  He  afterwards  cut  down  a  tree  and 
threatened  to  cut  down  more  in  assertion  of  his 
right  of  ownership,  the  Court  granted  an  injunction 
to  restrain  him,  approving  and  following  in  this 
respect  Lowndes  v.  Bettle. 

In  a  case  since  the  Judicature  Act  the  trespass 
complained  of  was  the  erection  of  a  building,  i.e.,  a 
buttress,  by  a  defendant  on  his  own  land,  but  en- 
croaching on  the  land  of  the  plaintiff,  and  an 
interlocutory  injunction  was  refused, (A;)  and  as 
regards  other  acts  of  trespass  by  defendant's  carts 
passing  over  plaintiffs  lands,  the  injury  not  being 
shown  to  be  sufficiently  permanent  or  substantial 
was  left  to  be  compensated  by  damages.  (^) 
111  rirotec-        ('344.)  Where  an  injunction  was  sought  to  restrain 

tiou  of  ^  '      .  "^  .  ® 

other  legal  the  invasion  of  a  legal  right  other  than  to  land, 
e.rj.,  to  copyright,  and  there  was  any  doubt  as  to 
the  exclusive  legal  right  of  the  plaintiff,  the  Court 
would  not  exercise  jurisdiction  without  giving  an 
opportunity  of  trying  the  legal  title  by  proceedings 

(/«■)  Robinson  v.  Lord  Byron,  1  Brown  C.  C.  (Belt)  588. 
(/■)  Stanford  v.  Huvlstonc,  L.   \l.,\)  Ch.  IIG,  coram,  L.  C.  Selborne 
and  L.  J.  J.  James  and  Mellish. 

(A)  Rtakin  v.  Barrow,  ^^'.  N.,  187G,  105.  (/)   lb. 


PROTECTION   OF   OTHER  LEGAL  RIGHTS.  293 

at  law,(a)  to    where  the  right  depended    on  the  Maniwuus 
construction  of  a  doubtful  covenant.  (6)  injuurthm. 

As  regards  land,  a  possessory  title  was  generally 
sufficient  as  against  a  mere  trespasser,  ex.  gr.,  to 
prevent  cutting  turf  on  plaintiffs  bog.(c)  Latterly 
the  Court  of  Chancery  itself  determined  the  legal 
right,  and  when  reasonably  clear  enforced  it  without 
requiring  an  action  to  be  brought.  (cZ) 

(345.)  An  application  for  a  mandamus  or  injunc-  Api.Hca- 
tion  may  be  made  to  the  court  or  judge  by  any  party,  mjuuciion. 
If  the  application  be  by  the  plaintiff  it  may  be 
made  either  ex  'parte  or  with  notice. (e) 

It  has  not  been  the  practice  in  Chancery  to  grant 
injunctions  in  Chamber  when  the  Courts  were 
sitting.  It  was  considered  to  be  a  kind  of  business 
which  ought  not  to  be  conducted  in  Chamber,(/) 
and  probably  the  practice  of  the  Court  of  Chancery 
will  be  followed  by  the  Common  Law  Divisions. 
Unless  in  cases  of  emergency,  an  injunction  was 
not  granted  ex  'parte  and  without  hearing  both  sides, 
and  ordinarily  notice  is  requked  to  be  given  for  an 
early  day.(r/) 

In  Ireland  the  practice  has  been  on  ex  parte 
applications  of  a  character  so  urgent  that  delay 
might  be  dangerous,  to  give  a  conditional  order 
restraining  the  proceedings,  with  a  direction  to  stay 
in  the  meanwhile,  i.e.,  imtil  cause  shown. 

In  some  cases  of  special  urgency,  in  where  the  object 

(a)  Bramwell  v.  Holcomb,  3  Myl.  &  C.  737;  Bridson  v.  M' Alpine, 
8  Beav.  229. 

(6)  Lowe  V.  Lucey,  1  Jr.  Eq.  Rep.,  93,  Cr.  &  Dix,  Ab.  Car.  634. 

(c)  Lifford  v.  Quinn,  Ir.  Rep.  7  Eq.  347 ;  see  as  to  trespassers  on 
foreshore,  Corporation  of  Hastings  v.  Ivall,  L.  R.,  19  Eq.  558,  V.  C.  M. 

id)  Mulville  v.  Fallon,  Ir.  Rep.,  6  Eq.  458,  V.  C. 

(e)  Ord.  52,  R.  4,  Engl. ;  Ord.  51,  R.  4,  infra. 

(/)  See  English  v.  Vestry  of  Camberwell,  W.  N.  1875,  256,  V.  C.  M., 
20  Dec.,  1875. 

is)  Anon.  W.  K,  1876, 12  ;  20  Sol.  Jour.  219,  Lindley,  J. 


294  APPLICATION   FOR  INJUNCTION. 


Mandamus  of  tliG  injunction  would  be  frustrated  by  giving 
injnncliov.  uoticG,  tliG  application  may  be  made  ex  parte,  ex.  gr., 
to  prevent  a  bill  of  exchange  being  negotiated(a) 
or  a  house  being  pulled  down. (6)  In  such  cases  it 
would  be  well  that  the  writ  should  be  endorsed 
specially  as  for  an  inj unction. (c)  To  this  it  would 
seem  defendant  can  now  plead.((:Z} 

In  some  cases  an  order  has  been  made  uno  flatu 
to  substitute  service  of  the  writ  and  for  an  inj  unc- 
tion, (e)  In  certain  cases  an  injunction  has  been 
granted  before  filing  of  the  bill,  the  oiRces  being 
closed.  (/) 
i?y  defend-  (346.)  A  defendant  may  now  apply  for  an  injunc- 
tion against  a  plaintiff  even  before  judgment,  and 
in  a  case  where  the  plaintiff  had  also  served  notice 
for  a  like  purpose,  an  order  was  made  on  the  two 
motions,  and  the  conduct  of  the  proceedings  in 
general  given  to  the  plaintiff.  (^)  A  defendant  in  a 
common  law  action  having  by  way  of  counterclaim 
prayed  for  an  injunction  was  held  at  liberty  to 
abandon  it  and  bring  an  independent  action  for  an 
injunction  in  the  Chancery  Division.(A) 
Not  against  (347.)  In  Ordinary  cases  an  injunction  cannot  be 
i-trsuns.  granted  against  third  persons,  not  being  parties  to 
the  action  or  servants  or  agents  of  a  party,  and  in 
an  action  on  certain  bills  of  exchange  an  injunction 
to  restrain  third  persons,  purchasers  of  property 

(«)  Anon.  W.  N.,  1876,  21,  Lindler,  J. 

(i)  Drakes  Patent  Concrete  r.  Demer,  "W.  N.,  1875,  230;  20  Sol. 
Jour.  98,  Quain,  J. ;  Femier  v.  Bedford,  W.  N.  1875,  238 ;  20  Sol.  Jour. 
120,  Quain,  J. 

(c)  Colebourne  v.  Colebourne,  L.  K.,  1  Ch.  D.  GOO,  V.  C.  II. ;  see 
Form  No.  9,  in  Appendix  A. 

(fZ)  See  Booth  r.  Taylor,  4  H.  &  C.  70. 

(b)  Anon.  W.  N.,  1876,  21,  Lindley,  J. 

(/■)  Carr  v.  Morice,  L.  R.  16  Eq.  125  ;  Thorncloc  v.  Skoiues,  L.  R. 
16  Eq.  126. 

{>/)  Sargent  v.  Read,  L.  R.  1  Ch.  D.  600,  >!.  R. 

(Ji)  Anon.  20  Sol.  Jour.  391,  Q.  B. 


THIRD    PERSONS — TERMS.  295 

belono-ins:  to  the  defendant,  from  paying  the  pnr-  Mandamus 

o      is  "r  1  1      •  "'"^^ 

chase-money  to  the  defendants  was  reiused  as  being  injunction. 
an  attempt  to  get  an  attachment  of  a  debt  before 
judgment,  (i) 

(348.)  The  order  for  an  injunction  may  be  made  On  terms, 
on  terms,  such  as  the  phiintiif  undertaking  to  speed 
the  action,  and  consenting  that  if  the  jury  find 
for  the  defendant,  the  plaintiff  will,  if  so  ordered, 
pay  to  the  defendant  any  sum  of  money  which  the 
Court  or  the  jury  may  award  as  compensation  for 
the  damage  sustained  by  reason  of  the  inj unction,  (j) 
Where  the  action  stayed  or  restrained  was  on  a  bill 
of  exchange  the  terms  usually  wei-e  that  the  party 
applicant  should  lodge  the  amount  in  Court. (A;) 


CHAPTER  XXXIX. 
Receivers. 

Section  28.     Subsection  (8.) 

349.  Receiver,  appoiiitnieut,  of,  p.  295. 

350.  Ordinary  grounds  for,  29G. 

351.  Where  lihiintiff  lias  legal  estate  or  power  of  distress,  29G, 

352.  Power  of  sale,  21)8. 

353.  Against  mortgagee  in  possession,  298. 
35-t.  On  disputed  title,  299. 

355.  Over  personal  estate,  299. 
o5G.  Pendente  lite,  300. 

357.  At  instance  of  defendant,  300. 

358.  Application  ex  parte,  300. 

359.  Indorsement  of  claim,  301. 

360.  Appointment  by  Judge,  301. 

361.  Immediate  appointment,  301. 

362.  Security  for,  302. 

363    Extend'ing  Receivers,  302. 
36i.  Appeals  from  Orders,  302. 


(349.)  A  Receiver  may  be  appointed  by  an  inter-  Receiver 
locutory  order  of  the  Court,  in  all  cases  in  which  it  ^pp^oiuted. 
shall  appear  to  the  Court  to  be  just  or  convenient 

.    (0  Anon.  W.  N.,  1876,  8 ;  20  Sol.  Jour.  298,  Quaiu,  J. 

(i)  See  Longfield  v.  Cashman,  11  Ir.  Com.  L.  R.   App.  23,  Q.  B.  ; 
Tozer  v.  Walford,  W.  N.  1875,  250;  20  Sol.  Jour.  140,  Quaiu,  J. 

{k)  Carter  v.  Uniake,  4  Ir.  Chan.  Rep.  30,  M.  R. 


296 


OEDINARY   GROUNDS   FOR  APPOINTING. 


jteceirers.  that  such  Older  sliould  be  made :  and  any  such  order 
may  be  made  either  conditionally  or  upon  such 
terms  and  conditions  as  the  Court  shall  think  just. (a) 
Ordinary  (350.)  The  Court  of  Chanccry  used  to  appoint 
fpjoint'-^"'^  a  Receiver  to  protect  property  in  land  or  goods 
ment.  requiring  special  protection ,  as  the  estate  of  an  infant, 
in  the  absence  of  a  testamentary  guardian,  and  even 
when  there  were  one,  if  from  any  cause  his  receipt 
of  the  rents  of  the  estate  was  likely  to  prove 
iijjurious  to  the  interests  of  the  infant.  So  again 
when  trustees  were  appointed  to  take  charge  of  the 
estate  the  Court  did  sometimes,  though  not  on  light 
grounds,  appoint  a  Receiver  ;  as,  for  example,  on 
accountofthemisconduct,mismanagement,(6)negiect, 
bankruptcy,(c)  or  absence  as  the  sole  trustee  or  guar- 
dian for  nurture  of  the  infant. 

(851.)  Although  the  last  clause  in  subsection  (8), 
viz.,  "  And  whether  the  estates  claimed  by  both  or 
either  of  the  parties  are  legal  or  equitable  "  would 
seem  to  be  added  in  reference  to  the  remedy  by  way 
of  injunction  rather  than  to  that  by  Receiver,  yet  the 
extensive  words  used  in  the  previous  sentence,  "  In 
all  cases  in  which  it  shall  appear  to  the  Court  to  be 
just  or  convenient "  would  enable  the  High  Court 
to  grant  a  Receiver  at  the  instance  of  a  plaintiff 
though  he  possessed  the  advantage  of  havingthe  legal 
estate  and  its  powers  possibly  may  not  be  limited  by 
the  old  rule  in  Equity  which  was  not,  except  under 
special  circumstances,  to  appoint  a  Receiver  at  the 
instance  of  a  person  who  has  a  legal  title,  ex.  (jr.,  as 
legal  mortgagee,  which  he  might  enforce  by  eject- 
ment, or  one  who,  being  an  equitable  incumbrancer 
had  his  charge  secured  by  a  trust  term  or  a  power 
of  distress  and  entry  vested  in  himself  or  a  trustee 

(«)J.  A.,  1877,8.28,  §8. 

(i)  See  in  re  Cormacks,  Minors,  2  Ir.  Eq.  Rep.  2G4,  jNf.  U. 

(c)  Steele  v.  Cobham,  L.  11.  1  Ch,  325. 


Where 
plaintiff 
has  legal 
estate  or 
powers  of 
distress. 


WHERE  PLAINTIFF  HAS  LEGAL  ESTATE  OR  CAX  DISTRAIN.     -i)7 

for  him,  and  this  although  the  remedy  at  law  was  ikceircr.t. 
full  of  difficulties, (fZ)  or  in  the  case  of  a  rentcharger      ' 
or  an  annuitant  who  could  have  recovered  his  arrears 
by  distress. 

In  Ireland  the  supposed  power  of  a  legal  rent- 
charger  to  help  himself  by  entry  and  distress  was 
usually  very  difficult  to  enforce  at  law  from  the 
embarrassments  of  title  and  the  multitude  of  incum- 
brancers, and  the  legal  remedy  was  at  best  less  com- 
plete and  effectual  than  the  remedy  by  Receiver,  and 
by  a  sort  of  local  equity,  coui'ts  in  Ireland  adopted 
a  less  strict  rule  in  granting  Receivers  in  annuity, 
cases.  In  some  cases  a  Receiver  was  appointed  for 
recovery  of  a  fee-farm  rent  although  the  grant  con- 
tained powers  of  distress  and  re-entry  for  non- 
payment of  it.(e)  In  a  later  case(/)  Lord  Chancellor 
Brady  departed  from  this  view,  and  considered  that 
Courts  of  Equity  had  not  a  concurrent  jurisdiction 
to  relieve  a  party  by  Receiver,  who  had  a  power  of 
distress  and  no  substantial  difficulty  to  prevent  him 
availing  himself  of  it. 

But  where  a  mortgagee  was  obliged  to  make  ad- 
vances to  prevent  an  eviction  for  non-payment  of  rent 
of  the  leasehold  premises  mortgaged,  a  receiver  was 
appointed  although  no  interest  was  due  on  the 
mortgage. (^)  It  doubtless  will  not  be  deemed 
"just  or  expedient "  to  exercise  the  power  merely  to 
save  a  mortgagee  from  the  risk  of  entering  into  pos- 
session of  the  mortgaged  property,  or  to  assist  a 
landlord  seeking  to  eject  his  tenant,  by  appointing 
a  receiver  to  take  care  of  the  property  'pendente  lite, 

{d)  Berkly  v.  Sewell,  Jae.  and  Wal.  647.  See  Sollorj-y.  Seaver,  L.  R. 
9  Eq.  22  ;    Kelsey  v..  Kelsey,  L.  R.  17,  Eq.  495.     V.  C.  M. 

(e)  Stevelly  v.  Murphy,  2  Ir.  Eq.  Rep.  448.    Fay  v.  Fay,  2  Jones,  350. 

(/)  Brady  v.  Fitzgerald,  12  Ir.  Eq.  Rep.  273,  founded  on  Cremen  v. 
Hawkes,  2  Jo.  and  Lat.  at  p.  680 ;  8  Ir.Eq.  Rep.  153. 

{g)  Kelly  v.  Staunton,  1  Hogan,  393. 

03 


2!J8 


PENDING   SALE— MORTGAGEE   IN   POSSESSION. 


Ueceivers. 


Towers  of 
sale. 


Against 
mortgapoc 
in  posses- 
sion. 


and  it  has  been  refused  on  an  allegation  that  the 
premises  were  being  allowed  to  fall  into  disrepair  in 
breach  of  a  covenant. (/i)  But  in  a  proper  case  the 
jurisdiction  has  been  recently  exercised  on  behalf  of 
a  mortgagee  seeking  to  foreclose  his  mortgage,  where 
the  property  was  a  mining  concern,  a  receiver  and 
manager  being  appointed  to  secure  the  property. (i) 
So,  where  the  applicant  was  legal  mortgagee  of  some 
part  of  the  property,  and  equitable  mortgagee  of  the 
other  parts,  so  intermixed  that  it  would  be  incon- 
venient if  a  receiver  were  appointed  over  the  pro- 
perty equitably  mortgaged,  the  appointment ,  was 
made  over  both,  although  there  was  no  adverse  pos- 
session, the  order  being  made  without  prejudice  to 
the  prior  incumbrancers  taking  possession  under 
their  securities,  if  so  advised.  (;') 

(352.)  The  court  was  slow  to  appoint  a  receiver 
over  rents  and  profits  where  the  applicant  had  the 
right  of  sale,  especially  if  he  was  proceeding  to  exer- 
cise his  right.  But  if  his  security  was  insufficient, 
or  insecure  as  a  charge  or  a  life  estate,  or  a  leasehold 
liable  to  be  evicted,  or  heavily  incumbered  by  prior 
creditors,  it  has  done  so.(/i;)  So  where  a  mortgagee 
might  be  placed  in  serious  difficulty  by  withholding 
his  interest  money  for  an  unreasonable  period,  ex.  gr., 
two  years,  a  receiver  was  granted  pending  a  sale,  al- 
though the  security  was  adequate. (Z) 

(353.)  The  court  did  not  appoint  a  receiver  at 
the  instance  of  a  second  mortgagee  an  equitable  in- 
cumbrancer, Avhcre  the  first  mortgagee  was  in  pos- 

(A)  llabershon  v.  Gill,  W.  N.,  1875,  231  ;  20  Sol.  Jour.  98,  Quain,  J. 

(i)  Peek  v.  Trinsmaran  Iron  Company,  L.  R.  2  Ch.  D.  115,  M.R. 

(y)  Pease  v.  Fletcher,  L.  K.  1  Ch.  D.  273  ;  24  \V.  IJ.  1J8;  20  Sol. 
Jour.  152,  V.  C.  B. 

(/•)  See  M'Craith  v.  Quinn,  Ir.  Kep.,  7  Er|.  .324,  *L  K.  See  Herbert 
V.  (ireene,  2  Ir.  Chan.  liep.  at  p.  274,  per  JI.  If. 

{I)  Scottish  Amicable  Life  In.Mirance  Conijian}'  v.  Barker,  Ir.  Ecp., 
9  Eq.  510,  V.  C. 


DISPUTED   TITLE.  299 

session,  so  long  as  anything  was  due  to  him  on  his  Receivers. 
mortgage  security,  if  he  swore  to  the  fact,  unless  the 
second  mortgagee  offered  to  pay  what  was  claimed  to 
be  due,  or  unless  special  circumstances  existed  and 
were  proved  at  the  hearing,  such  as  gross  mis- 
management. (771) 

(354.)  So,  where  the  title  to  an  estate  was  in  dis-  Onciisputed 

.      title. 

pute  between  two  parties,  the  Court  of  Chancery  did 
not  grant  a  receiver  at  the  instance  of  the  party  out 
of  possession  as  against  thq  party  in  possession,  in 
the  absence  of  fraud  or  privity  of  estate  between 
them,(%)  and,  generally  speaking,  the  Court  of  Chan- 
cery declined  to  appoint  a  receiver  in  a  simple  case 
of  disputed  heirship,  or  in  case  of  a  disputed  will,(o) 
but  if  neither  the  devisee  nor  the  heir  was  in  actual 
possession  of  the  rents,  possibly  the  court  might  ap- 
point a  receiver.  (j9) 

(355.)  The  Court  of  Chancery  used  to  appoint  a  over 
receiver  over  personal  estate  or  chattels  only  in  J^gYa^e"^ 
rare  and  exceptional  cases,  ex.  gr.,  where  the  chattels 
were  of  peculiar  value,  or  the  property  was  a  trust 
fund  in  risk  of  immediate  loss  ;  but  in  an  ordinary 
action  of  trover  for  goods  (even  since  the  Judica- 
ture Act),  it  has  been  refused. (5')  In  an  action  for 
specific  performance  of  an  agreement  to  give  a  bill 
of  sale  of  furniture  on  the  faith  of  which  plaintiff 
signed  a  bill  of  exchange,  enabling  defendant 
thereby  to  raise  money,  the  court  did  grant  a  re- 
ceiver to  protect  the  property,  it  being  a  case  of  im- 
mediate danger  to  personal    chattels. (r)      So  the 

(to)  Berry  v.  Sew  ell,  1  Jac.  and  Walk.  647. 

(«)  Talbot,  Earl  of,  v.  Hope  Scott,  4  K.  &  J.  96. 

(0)  See  Hitchea  v.  Birks,  L.  R.  10  Eq.  471.  Carrow  v.  Ferrior, 
L.  K.  3  Ch.  719. 

(,2^)  See  Parker  v.  Seddons,  L.  E.  16  Eq.  34. 

(q)  See  Anon.  20  Sol.  Jour.  101,  Quain,  J. 

(/•)  Taylor  p.  Eckersiey,  L.  K.  2  Ch.  D.  302  ;  24  W.  R.  420  ;  20 
Sol.  Joiur.  391,  A,  C. 


300  PENDENTE  LITE — FOE  A  DEFENDANT. 

iiecehers.   court  liRs  formerly  appointed  a  receiver  over  personal 

estate  pending  grant  of  probate. (^) 
Pendente-  ^  (356.)  The  Court  of  Chancery  sometimes  used  to 
exercise  jurisdiction  to  appoint  a  receiver  to  pre- 
serve moveable  property  pendente  lite  in  another 
Court,  but  declined,  unless  under  very  special  cir- 
cumstances, to  do  so,  where  the  Court  of  litigation 
had  itself  power  to  appoint  one,  or  had  already 
granted  administration. (u)  But  since  the  Judicature 
Act  application  for  an  order  for  a  receiver  under  sub- 
section (8)  should  be  made  to  that  division  of  the 
Court  in  which  the  action  is  pending ;  and  where  an 
action  was  brought  in  the  Chancery  Division  for  a 
receiver  over  real  estate  of  a  testator  pending-  pro- 
ceedino-s  in  the  Probate  Division  to  determine  the 
validity  of  the  will,  the  action  and  motion  were 
both  transferred  to  the  Probate  Division,  (v) 
At  instance  (357.)  An  application  for  a  receiver  may  be 
defendant,  made  by  any  party  to  the  action,  ex.  gr.,  by  a  de- 
fendant, without  his  bringing  a  cross  action  •,(w)  and 
where  applications  were  made  by  both  plaintiff  and 
defendant,  the  order  was  made  on  both  motions,  but 
the  conduct  of  the  proceedings  was  given  to  the 
plaintiff  who  had  first  given  notice.(a;) 
Application  (358.)  A  receiver  has  been  appointed  ex  parte, 
Tx  pine.  <'^nd  before  defendant  has  appeared  to  the  writ,(2/) 
and  even  before  service  of  the  writ  in  a  case  of  a 
great  and  immediate  risk  of  loss.(c) 

(«)  Parkin  v.  Seddons,  L.  R.  IG  Eq.  34. 

(u)  Ilitchen  v.  Berks,  L.  R.  10  Eq.  471 ;  Verct  v.  Duprcy,  L.  R. 
G  Eq.  329 ;  see  Tichborne  v.  Tichborne,  L.  R.  1  Pro.  &  Div.  730 ; 
L.  C.  L.  R.  2  Pro.  &  Div.  41. 

{v)  Barr  v.  Barr,  W.  N.  1876,  44 ;  20  Sol.  Jour.  201,  M.  R. 

{w)  See  formerlj-  Robinson  v.  Hadlcy,  11  Beav.  G14. 

{x)  Sargent  v.  Read,  L.  R.  1  Ch.  D.  GOO,  M.  R. ;  and  see  Shcpliard 
V.  Beane,  W.  N.  187G,  Gl  V.  C.  II. 

(y)  Taylor  r.  Eckersley,  24  AV.  R.  430,  W.  N.  187G,  115;  20  Sol. 
Jour.  391,  A.  C. 

(2)  In  re  H.'s  Estate,  L.  R.  1  Ch.  D.  27G  V.  C.  II.;  II.  v.  II.,  21  W.  R. 


APPOINTMENT  BY  JUDGE  DIRECT.  301 

(359.)  A  receiver  may  be  appointed  in  an  action  Receivers. 
though  not  claimed  in  the  indorsement  of  the  writ,  (ft)  in(iors7- 
Where  the  substantial  object  of  tlie  action  is  for  "laim.'" 
a  receiver,  the  writ  had  better  be  indorsed  with  a 
claim  for  a  receiver.(6) 

(360.)  Though    ordinarily,  receivers    are    to   be  Appoint- 
appointed   by  the   Receiver   Master,   or   after  his  receiver  by 
release    by   one    of   the   Land    Judges,    notwith-'''^'^^^" 
standing  this,  any  Judge  of  the  High  Court,  or  the 
Lord  Chancellor  in  Lunacy,  may  himself  appoint  a 
receiver  over  land  or  over  personal  estate  other  than 
land,  in  any  case  in  which  he  may  think  it  expe- 
dient so  to  do ;  and  he  may  also,  by  order,  direct 
that  all  subsequent  proceedings  with  regard  to  such 
receiver,   shall  be   taken   in   his   own  court ;  and 
thereupon  all  such  proceedings  shall  be  taken  be- 
fore such  Judge  or  his  officers,  (c) 

In  case  the  receiver  is  appointed  over  personal 
estate  other  than  land,(sic)  the  order  should  direct 
the  subsequent  proceedings  to  be  taken  in  the 
judge's  own  Court. (c) 

(361.)  Occasionally  an  immediate  appointment  is  immediate 
made  ad  interiini  of  a  person  named  in  the  order,  mem'."  " 
ex.  gr.  of  the  plaintiff  himself,  for  a  given  number  of 
days,  without  giving  security,  and  usually  on  the 
plaintiff  undertaking  not  to  deal  with  the  property 
except  under  the  direction  of  the  Court,  and  to 
abide  any  order  it  may  make  as  to  damages  or 
otherwise,  (d^) 

(362.)  Where   a  receiver  is  appointed  upon  his  Security 
giving  security  in  the  usual  way,  the  person  is  not 

317,  Anon.  W.  N.  1875,  236;  20  Sol.  Jour.  9  V.  C.  H.;  see  as  to  adminis- 
trator 2)endente  lite.  Brand  v.  Matson,  24  W.  R.  534,  I'rob.  Jleluish 
t;.  Milton,  24  W.  R.  679  ;  20  Sol.  Jour.  562  Prob. 

(a)  Colebourne  v.  Colebourne,  L.  R.  1  Ch.  D.  690,  V.  C.  H. 

(b)  Norton  v.  Gover,  W.  N.  1877,  206  M.  R. 

(c)  J.  A.,  1877,  s.  75,  §  5.  {d)  Taylor  v.  Eckersley,  ubi  supra. 


802  EXTENDING   RECEIVER. 

Receivers.  R  receiver  until  it  is  certified  he  has  given  security, 
at  least  so  far  as  to  entitle  him  to  take  possession  of 
the  property  or  demand  rent.(a) 

The  security  of  a  guarantee  society  has  been  re- 
ceived, subject  to  the  Judge  or  proper  ofiicer  being 
satisfied  of  its  solvency(6) ;  and  in  Ireland,  that  the 
company  shall  have  assets  which  can  be  made 
available  in  Ireland. 
Kxtending       (303.)  The  Court  of  Chancery  in  Ireland  would 

;i  receiver.  t-i-  •     ,     -i     •  tj  -i     j 

order  a  Keceiver  appointed  m  a  creditor  s  suit  to 
pay  an  annuit}''  charged  on  the  lands  according  to 
its  priority  without  requiring  a  fresh  bill  to  be  filed 
by  the  annuitant.^ c)  This  was  not  done  in  England, 
unless  it  were  for  the  benefit  of  the  parties,  to  save 
expense,  or  with  the  consent  of  the  creditors  who 
obtained  the  Receiver  originally,  (d )  Under  the  Judi- 
cature Act,  lS77,(c)  it  will  not  be  necessary  for  any 
party  claiming  to  be  entitled  to  or  interested  in  the 
rents  of  lands  over  which  a  Receiver  has  been 
appointed  to  file  any  bill(/)  or  to  institute  any  other 
cause  or  matter  to  extend  the  Receiver,  but  the  party 
may  apply  to  a  Land  Judge  to  extend  the  Receiver 
already  appointed. 
Appeals  (304?.)  Appeals  from  orders  made  by  the  Land 

as  to  ^^  ^^^  Judges  with  regard  to  matters  connected  with 
receiver.  Receivers  or  the  management  of  land  lie  to  the 
Court  of  Appeal  and  not  to  the  Court  or  Judge  by 
whom  the  reference  to  appoint  or  take  the  accounts 
of  a  Receiver  may  have  been  made,  and  no  order  so 
made  shall  require  to  be  confirmed  by  the  latter 
Court  or  Judge.((/) 

(a)  See  Edwards  v.  Edwards,  24  W.  K.  713,  W.  N.  187G,  107  V.  C; 
Merry,  S.  £.  L.  K.  1  Ch.  D.  4.J4  and  24  W.  K.  201,  V.  C.  M. 
(h)  Menzies  v.  Lord  Grantley,  20  Sol.  Jour.  252  Prob. 
(c)  *'oss  V.  Foss,  15  Jr.  Chan.  Kep.  215.     M.  K. 
((/)  See  Sanders  v.  Lord  Lisle,  Ir.  Rep.  4  Eq.  43.    V.  C. 
(c)  J.  A.,  1877,  s.  40;  seea^^e  (182).     (/)  Sic  in  statute. 
0/)  J.  A.,  1877,  s.  75,  §  6. 


[     303     ] 

CHAPTER  XL. 

Damages  by  Collision  of  Ships  at  Sea, 
Section  28.     Subsection  (9). 

SCto.  Damages  by  Collision,  p.  303. 

3G6.  Conflict  of  law  respecting,  303. 

367.  Limitation  of  Liability  by  Merchant  Shipping  Act,  SOi. 


(365.)  Section  28  of  J.  A.,  1877,  subsection  (9),  Damajres 

enacts  as  follows  :(a) sionsat.sea, 

"  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  High  Court  of  Admiralty, 
so  far  as  they  have  been  at  variance  with  the  niles 
in  force  in  the  Common  Law  Courts,  shall  prevail." 

(306.)  By  the  rules  of  the  Common  Law  in  an  conflict 
action  for  negligence  by  the  master  and  crew  of  the  respecting, 
defendant's  ship,  the  plaintiff  could  not  recover  if 
his  own  ship  were  in  any  degree  in  fault  in  not 
endeavouring  to  prevent  the  collision.  In  other 
words,  if  the  mischief  Avas  the  result  of  the  combined 
negligence  of  the  two  ships,  they  should  both  remain 
in  statu  quo,  and  neither  party  could  recover  against 
the  other. (6) 

In  such  a  case  "  the  Law  Maritime  required  that 
as  the  sufferer  was  not  herself  blameless,  the  damage 
should  be  divided  equally  between  them."(c)  That 
is,  the  plaintiff  would  recover  half  his  loss  from  the 
defendant,  and  the  defendant  might  recover  half  his 
from  the  plaintiff  in  a  cross  suit,  each  ship  thus 
bearing  a  moiety  of  the  aggregate  damage  done  to 
both,  although  one  ship  might  be  much  more  to 
blame  than  the  other.{d)     If  the  Common  Law  rule 

(a)  J.  A.,  1S77,  s.  28,  sub.  (9);  J.  A.,  1873,  s.  25,  sub.  (9). 

(b)  Seejier  Bayley,  B.  in  Yennall  v.  Garner,  1  Cromp  &  Mee  at  p. 
•22.  See  Bridge  v.  GrandJunction  Railway  Company,  3  Mee  &  Wels. 
48 ;  per  Parke,  B.,  to  contributory  negligence  in  ordinary  cases. 

(c)  The  Meteor,  In  re  Ir.  Eep.  9  Eq.  at  p.  579,  per  Cliristian,  L.J.A. 
(rfj  Hay  V.  Le  Neve,  2  Shaw,  Scotch  Ap.  Cas.  395.  The  Meteor,  ubi  mpra. 


304  LIABILITY  UNDER  MERCHANT  SHIPPING  ACT. 

Damages  hij  wRs  a  hard  One,  the  Admiralty  rule  scarcely  awarded 
at  Sea.  a  full  mcasure  of  justice.  "  I  think,"  said  a  learned 
Judge  in  respect  of  this  rule,  "  it  is  to  be  regretted 
that  the  Admiralty  doctrine  is  so  rigid  as  to  subject 
all  cases  alike  to  a  procrustean  rule  in  Equity.  It 
strikes  me  it  would  be  better  if  some  regard  could 
be  had  to  the  relative  degrees  of  misconduct."(e)  It 
is  curious,  if  true,  that  in  the  earlier  prints  of  the 
Judicature  Bill  of  1873  the  Common  Law  rule  was 
preferred  to  that  of  the  Admiral ty.(/)  But  qua 
cunque  via  the  subsection  has  produced  uniformity 
of  rule  between  the  two  branches  of  the  High  Court. 
But  it  would  seem  that  the  Common  Law  Divisions 
of  the  High  Court  of  Justice  in  England  are  not 
disposed  to  apply  the  principle  of  the  rule  one  step 
beyond  its  strict  terms,  and  decline  to  follow  the 
Admiralty  rule  as  to  costs  where  damage  arises  from 
a  collision,  and  the  verdict  is  given  on  the  ground 
of  compulsory  pilotage,  in  which  case  the  Admiralty 
Court  would  give  no  costs.  (^) 
Limit  of  (367.)  The  Merchant  Shipping  Act,  1854,(/i)  im- 

.Merchant  poscs  Certain  limits  to  the  liability  of  owners  of 
^^ipping  ggr^.gQJQg  ships  for  loss  or  damage  which  may  happen 
without  their  actual  fault  or  privity  in  regard  to 
certain  matters,  and  also(i)  enables  the  Court  to 
entertain  proceedings  at  the  suit  of  any  owner 
to  determine  the  amount  of  the  liability  and  the 
distribution  of  such  amount  rateably  amongst  the 
several  claimants,  and  with  power  to  stop  all  actions 
and  suits  pending  in  any  other  Court  relating  to  the 
same  subject-matter.(^') 

(e)  The  Meteor,  ubi  supra.     (  f)  Trower's  Manual  of  Equity,  p.  80. 
(5r)  General  Steam  Navigation  Conipan}'  v.  London  and  Edinburgh 
Shippine:  Company,  25  W.  K.  094.     W.  N.,  1877,  156.     Ex.  D. 
(/*)  17  &  18  Vic,  c.  lO-l,  s.  503.  (»)  lb.,  s.  514. 

0')  See  Hill  v.  Audus,  1  Kay  &  J.,  2G3,  a  bill  of  this  nature. 


[     305     ] 

CHAPTER  XLI. 
Custody  and  Education  of  Infants. 

Section  28.     Subsection  (10.) 

368.  Custody  and  Education  of  Infants,  p.  305. 

369.  Several  kinds  of  Guardians,  305. 

370.  Guardian  by  nature,  305. 

371.  Guardian  for  nurture,  306. 

372.  Guardian  by  testament,  308. 

373.  Guardian  by  election,  310. 

374.  Guardian  by  Court  of  Cliancery,  311. 

375.  Mother's  right  of  access,  311. 

376.  Illegitimate  children,  312. 

377.  Eight  to  custody  at  law,  312. 

378.  Right  in  equity,  314. 

379.  Kight  to  direct  Religious  Education  at  Law,  316. 

380.  Right  in  Equity,  317. 

381.  Effect  of  contract,  318. 

382.  Effect  of  acqiuescence,  319. 

383.  Rules  of  equity  to  prevail,  321. 

384.  Conditions  necessary  to  exercise,  322. 


(368.)  The   J.   A.,  1877,   section  28,   subsection  Questions 
(10),  (ft)  enacts  as  follows  :—  ;",V;,7i- 

"  In  questions  relating  to  the  custody  and  educa-  of  "rifant" 
tion  of  infants,  the  rule  of  equity  shall  prevail." 

The  custody  and  education  of  infants  involve 
considerations  as  to  the  appointment  and  duties  of 
guardians  and  access  to  and  management  of  the 
infant. 

(369.)  Of  guardians  there  are  several  kinds  re-  several 
cognised  by  the  law  of  England,  of  which  it  is  only  guardians, 
necessary  to  mention  the  following: — 1st,  by  nature; 
2nd,  by  or  for  nurture ;  3rd,  by  testament ;  4th, 
by  election;  and  5  th,  by  appointment  of  the  Court 
of  Chancery,  or,  as  we  are  now  to  call  it,  by  the 
Chancery  Division  of  the  High  Court  of  Justice,  to 
which  "  the  wardship  of  infants,  and  the  care  of 
infants'  estates  "  are  assigned. 

(370.)   Guardianship   by   nature    was   of  feudal  Guardians 
origin,  and  belonged  to  the  father  or  mother  or  ^^  '^^'"'■^• 


(«)  J.  a.  1877,  s.  28,  sub.  10 ;  J.  A.  1873,  s.  24,  s.  10. 


306  GUARDIAN  FOR  NURTURE. 

Cii.ofochjond  otliei'  ancGstor  in  regard  to  his  or  her  heir  apparent. 

ofiiifantl  The  expression,  guardian  by  nature,  when  applied 
to  children  other  than  the  heir,  was  used  in  a  sense 
not  strictly  accurate. (a)  This  guardianship  con- 
tinued until  the  infant  attained  twenty-one  years.(?>) 
It  extended  only  to  the  infant's  person,  and  con- 
ferred no  right  to  retain  the  profits  of  his  lands  as 
guardianship  in  socage  did.  It  was  defeated  by  the 
appointment  of  a  testamentary  guardian. 

Guardian         (371.)  Guardianship  by  nurture,  or  "  for  nurture," 

for  nurture.  ,.„  -tim  t 

arose  where  the  mxant  was  without  other  guardian. 
None  could  have  this  except  the  father  or  mother 
of  the  infant.  It  extended  no  further  than  the 
custody  and  government  of  the  infant's  person  and 
education,  and  had  nothing  to  do  with  his  lands.  It 
might  be  where  there  were  no  lands. (c)  The  fjither 
is,  in  this  sense,  the  legal  guardian  of  his  child  by 
title  paramount,  and  while  he  Jives.  Even  the  Court 
of  Chancery  did  not  appoint  another  person  to  be 
guardian  in  his  stead,  though  in  certain  cases  it 
nominated  something  like  a  curator,  to  take  care 
of  the  child  and  protect  him  against  some  prejudice 
during  the  life  of  the  father. (cZ) 

The  father  is  entitled  to  the  guardianshi})  for 
nurture  although  he  resides  abi-oad,(e)  and  though 
the  child  is  born  and  resident  abroad,(/)  and  as 
such,  he  has  the  right  to  the  custody,  and  to  direct 
the  education  of  his  children.  On  the  death  of  the 
father,   without  appointing  a   testamentary  guar- 

(a)  Co.  Lit  88  B.     Hargr.  note  12,  1  Thomas  Co.  Lit.,  p.  15-1. 
(6) /«  re  William  Connor,  an  Infant,  16  Ir.   Com.  L.  K.   112,  ^^er 
O'Brien,  J.,  lb.  per  Fitzgerald,  J.,  at  p.  121. 

(c)  Co.  Lit.  88  B.  Hargr.,  note  12. 

(d)  Barry  v.  Barry,  1  Mol.  210,  per  Lord  Manners,  Ex  parte  Mount- 
ford,  15  Ve3.  447,  per  Lord  Eldon. 

(c)  See  1  White  v.  Tudor,  L.  C.  97. 

(/)  Hope  V.  Hope,  8  De  Gex,  Mac.  and  Got.  731 ;  but  see  Wellesley 
V.  Uuke  of  Beaufort,  2  Russ.  1,  where  the  child  is  made  a  ward  of  Court. 


GUARDIAN   FOR  NURTURE.  307 

dian,  the  mother  survi^dn2:  was  reojarded  at  Com-  Custodyand 

_  -  •   1     i-L  Education 

mon  Law,  as  guardian  for  nurture,  with  the  same  ofiv/ants. 
right  to  custody  of  the  chikl,  and  to  direct  its  edu- 
cation, subject,  however,  to  this,  that  it  is  her  duty, 
whether  as  guardian  for  nurture  or  as  testamentary 
guardian,  under  ordinary  circumstances,  to  conduct 
the  reho-ious  education  of  the  child  according  to 
the  wishes  and  intention  of  the  father,  and_pri?na/acie 
according  to  his  profession  of  rehgious  doctrine.(g') 

Guardianship  for  nurture  terminates  like  that  of 
socage,  at  fourteen  years  as  regards  boys,  but  at 
sixteen  years  as  to  girls. 

The  Statute  4  and  5  Ph.  and  Mary,  c.  8,  made  a 
boy  of  fourteen  years  responsible  for  the  abduction 
of  a  female,  and  at  the  same  time  made  the  abduc- 
tion of  a  female  infant  of  sixteen  years  a  crime,(/i) 
and  in  terms  which  implied  that  the  custody  of  the 
female  {i.e.  a  maiden  under  sixteen),  should  belong- 
to  the  father  or  mother  of  the  child  ;(i)  and  that  at 
fourteen  the  boy  should  become  responsible  for  his 
£icts  for  all  purposes  of  the  criminal  law.(/i;)  Short 
of  these  periods  the  infant  had  no  discretion  to 
consent  t(j  leave  its  guardian ;(Z)  and  a  Court  of 
Law  would,  without  any  examination  of  the  child, 
order  it  to  be  delivered  to  its  legal  guardian ;  (-wi) 
and  any  person  endeavouring  to  baffle  the  order  of 
the  Court,  and  keep  back  a  girl  under  this  age, 
might  become  liable  to  conviction  on  an  mdictment 
for  the  offence  of  abduction. (7i) 

{g)  III  re  Hunt,  2  Con.  and  Law,  373. 

Qi)  See  also  10  Geo.  3,  c.  34-,  s.  24  ;  9  Geo.  4,  c.  31,  s.  20,  both  now 
repealed  ;  and  see  24  &  25  Vic.  c.  100,  s.  53,  in  which  the  age  of  the 
female  is  raised  to  twenty-one. 

(i)  See  The  Queen  v.  Howes,  3  El.  and  EL,  at  p.  334,  -per  Black- 
burn, J. 

(/.)  And  see  In  re  Connor,  an  Infant,  16  Ir.  Com.  Law  Eep.,  at 
p.  121,  per  Fitzgerald,  J. 

(/)  Queen  )•.  Howes,  uhi  supra,  p.  337,  per  Cockburn,  C.  J. 

(w)  Regina  v.  Clarke,  7  El.  and  EL,  p.  193.  (re)  lb. 


308 


TESTAMENTARY   GUARDIAN. 


Custody  and 
Edticatiou 
oj  Infants. 

Guardian 
by  testa- 
ment. 


(372.)  The  Statute  12  Car.  2,  c.  24,  s.  8,  Engl. ; 
and  14  &  15  Car.  2,  c.  19,  s.  6,  Irish,  enables  a  father 
by  deed  or  will,  attested  by  two  witnesses,  to 
appoint  who  shall  be  guardian  after  his  decease  of 
his  children  born  or  to  be  born,  and  being  unmarried 
and  under  the  age  of  twenty-one  years  at  the  time 
of  his  death. 

This  power  is  conferred  exclusively  on  the  father, 
and  does  not  devolve  on  the  mother  surviving, (a) 
or  on  the  grandfather,  nor  is  it  conferred  on  the 
putative  father  of  an  illegitimate  child,  whose 
appointment  was  ineffectual; (6)  but  the  Court  of 
Chancery  notwithstanding,  so  far  respected  his 
wishes  so  expressed,  that  it  usually  adopted  his 
nominee  (if  a  suitable  person)  where  he  has  settled 
property  on  the  infant,(/'>)  and  so  an  assumed 
appointment  by  a  mother  would  be  taken  into  con- 
sideration by  the  Court  of  Chancery,  (c)  Under 
the  Statute  4  &  5  Ph.  &>  Mary,  c.  8,  it  was  held 
that  a  father  had  power  to  appoint  a  guardian  to 
his  illegitimate  child.  (tZ) 

The  question  as  to  what  terms  will  constitute  an 
appointment  of  a  testamentary  guardian  was  lately 
considered  by  the  Lord  Chancellor  of  Ireland,  and 
it  was  held  that  naming  a  person  guardian  of  the 
estate  of  an  infant  child  was  not  sufficient  to  con- 
stitute the  person  testamentary  guardian. (e) 

Where  the  will  was  not  admitted  to  Probate  by 
reason  of  there  being  no  property  to  administer, 
and  any  serious  question  arose  as  to  the  validity  of 
the  will,  or  the  capacity  of  the  father  to  make  one, 

(a)  III  re  Hunt,  2  Con.  &  Law,  373  ;  In  re  Kaye,  L.  R.,  1  Ch.  387, 
L.  JJ. 

(6)  Barrj'  v.  Barry,  1  JIol.  211,  Davey's  Infants,  11  Ir.  Com.  Law 
R.  298,  and  see  Cairncross  Minors,  4  L.  R.  0.  S.  113,  Lord  Plunket. 

(c)  In  re  Kaye,  ubi  supra. 

(d)  Rex  V.  Corneforth,  2  StrangellG2. 

fe)  lit  re  Lord  Norbury,  a  Minor,  Ir.  Rep.,  8  Eq.  145,  Ball.  L.  C. 


TESTAMENTARY   GUARDIAN,  309 

or  of  the  will  being  his  own  voluntaiy  act,  the  Court  cmtodi/and 
of  Law  on  an  application  for  Habeas  Corpus  would  ofinfanil. 
not  determine  the  question  on  affidaAdts,  but  re- 
quired  the  person  claiming  the  guardianship  to  take 
an  issue  to  establish  the  will  by  the  verdict  of  a 
jury.(a) 

The  testamentary  guardian,  when  aprtointed, 
superseded  the  guardian  by  socage  and  the  rights  ot 
the  next  of  kin.(6)  The  statute  enables  him  to 
manage  the  estate  of  the  infant,  and  he  can  make 
leases  of  his  lands  during  the  minority, (c)  and  even 
the  Court  of  Chancery  did  not  interfere  with 
him  unless  it  became  absolutely  necessary  to  do 
so.(cZ) 

Although  by  the  statute  the  appointment  of  a 
testamentary  guardian  continues,  until  the  infant 
attains  twenty-one  years,  unless  the  father  directs 
otherwise,  yet  this  does  not  regulate  the  right  of 
the  guardian  to  the  custody  of  the  child  on  an 
application  for  a  Habeas  Corpus,  as  the  Court 
would  not  hand  a  child  over  even  to  its  father,  after 
it  had  attained  an  age  of  sufficient  discretion  to 
enable  it  to  exercise  a  wise  choice  for  its  own 
interests.  If  the  child  has  attained  this  age,  it  may 
elect  his  own  guardian  and  his  place  of  residence. 
But  before  this  period(e)  has  arrived  the  Court  of 
Law  on  an  application  for  Habeas  Corpus  had  no 
discretion  but  to  order  the  child  to  be  delivered  to 


(a)  See  hire  Andrews,  L.  R.8Q.  B.,atpp.  158-160,  Archibald,  J.; 
The  Queen  v.  Marsten,  Ir.  Rep.,  4  Com.  Law,  52  Q.  B. ;  In  re  Byrnes 
Infants,  Ir.  Rep.  7  Com.  Law,  199  Q.  B. 

(6)  Rex  V.  Islay,  5  Ad.  &  El.  441. 

(c)  See  Shaw  v.  Shaw,  Ver.  '&,  Scri.,  607,  but  see  Roe  v.  Hodgson, 
2  Wils.  129. 

(d)  In  re  Goods  Minors,  1  Ir.  Chan.  Rep.  256 ;  and  In  re  Swifts 
Mi.,  2  Mol.  330 ;  In  re  M'Colloch  v.  Drury,  276,  6  Ir.  Eq.  Rep.  393. 

(e)  Connors  Infants  a  tp.  118,  per  Fitzgerald,  J. ;  The  Queen  v. 
Howes,  3  El.  &  El.  at  p.  336,  per  Cockburn,  C.  J.  and  see  infra. 


310  GUARDIAN    BY   ELECTION. 

custodyan'i  the  testamentary  guardian  if  lie  was  not  a  very 

Education  n,  /,  \ 

o//ft/a7i^..  unfit  person. (a) 
—7  (373)  Guardianship  by  election  arose  originally 

by  election,  when  from  defect  of  law  the  infant  had  no 
guardian,  as  happened  in  case  of  guardian  in  socage 
after  fourteen  years,  or  guardianship  for  nurture 
after  it  ceased,  i.e.,  when  the  infant  reached  years  of 
discretion,  at  which  he  was  allowed  to  choose  his 
own  custody.  This  age  of  discretion  was  not 
affected  by  the  intellectual  deficiency  or  precocity 
of  the  individual  infant,  and  was  neither  hastened 
nor  retarded  thereby  ;  but  the  Court,  {i.e.,  of 
Common  Law),  following  the  guide  afforded  by 
the  statutes  of  Ph.  &  Mary,  fixed  the  age  of 
sixteen  as  regards  females  and  fourteen  as  regards 
males — short  of  which  a  child  had  no  discretion 
to  consent  to  leave  his  legal  guardian.(6)  Bat 
when  the  infant  was  of  years  to  elect  for  itself,  the 
Court  of  Law  merely  interfered  so  far  as  to  get  it 
free  from  illegal  restraint,  leaving  it  then  at  liberty 
to  go  where  it  pleased. 

A  deaf  mute  arrived  at  this  age  was  consulted  as 
to  his  own  desire  in  the  matter,  and  electing  to 
remain  in  the  public  school  in  which  he  had  been 
placed,  the  Court  refused  to  remove  him.(c) 

In  the  case  of  an  illegitimate  child  after  it  has 
passed  the  period  of  tender  years  entitling  its  mother 
to  apply  for  access  or  custody,  it  seems  there  is  no 
legal  guardian  or  custody  excc])t  what  it  may  choose 
for  itself  (c^) 

(a)  The  King  v.  Islay,  5  Ad.  &  El.  441 ;  /nre  JIary  Ellen  Andrews 
an  infant,  L.  E.,  8  Q    B.  l.-^S. 

(1))  See  The  Queen  v.  Howes,  3  El.  &  El.  at  p.  337,  per  Cockburn, 
C.  J.,  and  In  re  Connors,  10  Ir.  Com.  L.  K.  il2;  In  re  Andrews, 
L.  E.,  8  Q.  B.  158;  Cartledg;  v  Cartlcdge,  2  Swa.  &  Tris.  307; 
Malliuson  V.  Mallinson,  L.  K.,  1  Pro.  &  Div.,  2'Jl. 

(f)  In  re  Shanalian,  a  Minor,  5  Ir.  Jiir.,  58  Q.  B. 

{d)  See  Inrc  Alicia  Race,  7  El.  &.  BL  108,  pe/'Lord  Cauipbcll,  C  J. 


CHANCERY   GUARDIAN — MOTHER'S   ACCESS.  ■        311 

(374.)  Where  an   infant  ward  of  Court   had  no  Ciistodyana 
father  or  testamentary  guardian,  or  the  guardian  re-  ofin/mts. 
fused  to  act,  the  Court  of  Chancery  exercised  jurisdic-  GuaTdkn 
tion  to  appoint  a  suitable  person  to  be  guardian  of  ^^^^11°"-*  ^^ 
the  person  and  fortune,  and  also  where  the  le-^'al 
guardian,  even  the  father,  was  unfit  to  have  the 
direction  of  the  character  or  morals  of  the  child,((x) 
or  had  neglected  his  duty  or  abused  his  trust,(6)  the 
Court  of  Chancery  might  appoint  a  person  to  act 
qua  guardian,  (c) 

(375.)  Latterly  the  legal  guardian's  right  to  the  Mother's 
custody  was  made  subject  to  the  mother's  right  of  SL?^ 
access  to  the  child,  being  of  tender  years.    Talfourd's 
Act,  2  &  3  Vic,  c.  54,  extended  by  36  &  37  Vic, 
c.  1 2,  enabled  the  Court  of  Chancery  to  order  that      • 
the    mother  of  the    child    should    have    access  to 
or  have  the  custody  of  the  child,  being  under  six- 
teen years.  (cZ) 

A  Roman  Catholic  child  has  been  allowed  to 
remain  in  the  care  of  a  Protestant  mother  uncon- 
trolled until  it  arrived  at  the  age  of  seven  years, 
after  which  she  should  be  instructed  in  the  doctrines 
of  the  Roman  Catholic  Church,  and  further  direc- 
tions given.(e)  By  the  statute  the  matter  is  placed 
absolutely  in  the  discretion  of  the  Judge,  and  the 
interests  of  the  child  are  primarily  to  be  considered 
by  liim.(/) 

The  Act  if  it  does  not  enable  a  mother  to  resist 


(a)  Ex  parte  Mountford,  15  Ves.  447. 

(b)  Shelley  v.  Westbrooke,  Jac.  2GG ;  Welleslev  v.  Wellesley  2 
Bligh.,  N.  S.  104. 

(c)  In  re  Kaye,  L.  R.,  1  Ch.  387.  In  re  Cormicks  Mi.,  2  Ir.  Eq. 
Rep.,  264,  M.  R.  ;  Hamilton  «.  Hector,  L.  R.,  6  Ch.  701 ;  Andrews  v. 
Salt,  L.  R.,  S  Eq.  622. 

(d)  See  In  re  Fynii,  13  Jur.  483.  In  re  Taylor  an  infant,  L.  R.,  4 
Ch.  D.  157;  25  W.  R.,  69  M.  R. 

(c)  Austin  V.  Austin,  34  Bear.  257. 

ij  )  In  re  Taylor,  L.  R.,  4  Ch.  D.  157  M.  R. 


812  ILLEGITIMATE   CHILDREN. 

Custody  and  her  liuslDand's  application  for  the  custody  of  the  child 
0/ Infants,  at  law,  enables  her  to  apply  for  an  order  of  access ;  (a) 
and  a  Court  of  Equity  would  bear  in  mind  that  were 
the  child  to  be  placed  in  the  father's  custody  to-day, 
the  mother  would  be  entitled  to  present  a  petition  to- 
morrow under  the  statute,  and  probably  with  eflfect.(6) 
Illegitimate  (376.)  The  putativo  father  of  an  illegitimate  child 
can  assert  no  legal  right  to  its  custody,  even  though 
he  may  become  chargeable  in  respect  of  it  under 
the  Poor  Laws.(c)  Nor  has  he  any  right  to  appoint 
a  testamentary  guardian  to  it.{d)  So  neither  has 
the  mother  of  the  illegitimate  child  any  right  to  its 
custody  as  guardian,  (e)  although  she  may  have  a 
mother's  right  of  access  to  it  while  of  tender  years.  (/) 
In  such  a  case  there  seems  to  be  no  person  legally 
entitled  to  the  custody  or  guardianship  of  the  child, 
and  there  is  no  other  criterion  to  enable  the  Court 
to  determine  in  whose  custody  it  should  remain, 
except  the  choice  and  wishes  of  the  child  itself  (r/) 
iJi.'iitto  (*^77.)  We   have   seen  that  by  the  rules  of  the 

of  au"iufau^  Commou  Law  the  guardian  of  the  infant,  whether 
at  law.  ji^y  nature  or  for  nurture,  or  by  testamentary  appoint- 
ment, has  the  legal  right  to  the  custody  of  the  infant 
until  the  infant  reached  years  of  discretion,  when 
the  child  was  deemed  of  sufficient  age  to  choose  its 
own  custody ;  and  a  Court  of  Law  was  bound  to 
deliver  the  child  to  its   legal  guardian. (/i)     Upon 

(a)  Corsellis  v.  Corsellis,  1  Dru.  &  War.  235. 

(6)  In  re  Fynn,  2  De  Gex  &  Sm.,  at  p.  475;  per  Sir  L.  Sliadwell. 

(c)  In  re  Lloyd,  3  Man.  &  Gr.  547.  See  The  King  v.  Moses  Soper,  5 
T.  R.,  278. 

id)  Vide  ante,  (372).     But  see  In  re  Cairncross,  4  L.  R.,  0.  S.  113. 

(e)  In  re  Lloyd,  iibi  supra. 

(/)  See  Courtois  v.  Vincent,  Jae.  2G8,  note;  sec  Cairncross  Minors, 
tdji  supra. 

{fj)  See  /rare  Alicia  Race,  7 El.  &  Bl.  108  ;  per  Lord  Campbell,  C.  J.; 
In  re  Lloyd,  S'lpra. 

(A)  Re.N:  v.  Isley,  5  Ad.  &  El.  441 ;  In  re  Andrews,  L.  R.,  8  Q.  B., 
at  p.  158. 


LEGAL   RIGHT  TO   CUSTODY.  313 

an  application  for  a  writ  of  habeas  corpus,  all  that     custod,/ 
a  Court  of  Common  Law  could  do  was  to  deter-  Edvmtina 
mine  the  legal  custody  of  the  child  at  the  particular  <>/-^"/«"<^- 
time  when  its  aid  was  invoked,  (a)     If  the  child  was 
detained  from  the  custody  of  the  legal  guardian  it 
was  unlawfully  imprisoned,  and  when  delivered  to 
its  guardian  it  was  supposed  to  be  set  at  liberty.(6) 
It  had  no  discretion  but  to  enforce  the  right  of 
the  legal  guardian,  unless  the  infant  had  reached 
years   of  discretion   to  judge  for  itself  as  to  its 
custody.     It  had  no  machinery  enabling  it  to  select 
a  fit  and   proper   person   to   be  guardian   of  the 
child,  (c) 

However,  the  guardian,  even  a  father,  might  at 
the  Common  Law  forfeit  his  right  to  the  custody  of 
his  child,  if  acts  of  cruelty  on  his  part,  or  on  that  of 
the  person  to  whom  he  had  entrusted  the  child,(c/) 
or  any  well  grounded  apprehension  of  cruelty,  or  of 
contamination  in  consequence  of  his  criminal(e)  or 
gross  profligacy  exhibited  before  the  child,  were 
substantiated.  (/ ) 

But  short  of  this,  even  where  the  father  was 
living  in  open  adultery,  so  long  as  the  child  was 
not  brought  into  immediate  contact  with  the  para- 
mour, but  had  been  placed  by  the  father  in  a 
position  otherwise  unobjectionable,  a  Court  of 
Law  could  not  remove  the  child  from  his  control. (^) 

(a)  See  /rare  Moore  an  Infant,  11  Ir.  Cora.  Law  Rep.  1  Q.  B. 

(6)  The  Queen  v.  Clarke,  7  El.  &  BL,  at  p.  193 ;  per  Lord  Campbell, 
C.J. 

(c)  In  re  Moore,  supra,  per  Hayes,  J.,  at  p.  15. 

{d)  See  Lord  St.  Leonards'  Handy  Book  of  Property,  p.  83. 

Ce)  In  re  Moore,  11  Ir.  Com.  Law  Rep.  1,  as  to  perjury;  per  Lefroy, 
C.  J.,  and  Hayes,  J. 

(y)  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  1;  In  re  Andrews,  L.  R., 
8Q.  B.,atp.  158;  pe?- Archibald,  J.,  Anon.  Jacob,  254  ;  per  Lord  Eldon. 

{g)  See  Rex  v.  Greenhill,  4  Ad.  &  El.  624  ;  In  re  Alicia  Race,  7  El.  & 
BL  200;  per  Lord  Campbell,  C.  J. 

P 


814  EIGHT   TO   CUSTODY   IN   EQUITY. 

Custody  And  it  would  seem  that  a  mere  habit  of  intemperance 
r.ftucation  or  incontinence  in  itself  would  not  justify  the  inter- 
of  Infants,  ^^.^^g^ce  of  the  Court.(«) 

Therefore  Courts  of  Law  had  no  discretion  but  to 
declare  the  custody  of  the  child  in  any  other  hands 
than  those  of  the  guardian  to  be  illegal.  In  many 
cases  this  caused  the  Courts  of  Law  to  act  with 
great  regret  and  apparent  harshness,  and  they  have 
expressed  the  desire  to  have  the  discretion  which 
the  Court  of  Chancery  possessed.  They  have  also 
sometimes(6)  stayed  their  order  to  enable  an  appli- 
cation to  be  made  in  Chancery  to  have  the  child 
made  award  of  that  court,  and  obtain  an  injunction 
to  restrain  the  legal  guardian  from  interfering  with 
the  custody  or  education  of  the  infant,  and  for  a 
settlement  of  a  proper  scheme  for  its  education  and 
the  appointment  of  a  pereon  to  act  as  guardian.  In 
fine,  Courts  of  Law  could  enforce  the  rights  of  the 
father  or  other  guardian,  but  they  were  not  equal 
to  the  office  of  enforcing  the  duties  of  the  father. 
They  could  neither  compel  him  to  give  the  child  a 
moral  and  religious  education,(c)  nor  could  theyj 
appoint  a  fit  and  proper  person  to  do  so  in  his^ 
stead. 

iripiit  of  (878.)  But  the  Court  of  Chancery,  exercising  thej 
e'lui'ty.^ '"  prerogative  of  the  sovereign  as  ixirens  patrifc,  had  aj 
more  extensive  jurisdiction  than  belonged  to  the} 
Courts  of  Law  or  to  the  Lord  Chancellor  himself  J 
when  acting  under  his  Common  Law  jurisdiction! 
in  an  application  for  a  writ  of  habeas  coijnis  ;  and] 
while  l»aying  regard  to  the  rights  and  wishes  orj 
assumed  wishes  of  the  father  or  other  guardian  asl 

Qi)  In  Skinner,  9  B.  Moore,  278,  the  fatlicf  was  in  gaol  and  living 
in  ••iilultery ;  as  to  same  rule  in  Equity,  see  Ball  v.  Ball,  2  Sim.  35. 

(/>)  See  The  King  v.  Islay,  5  Ad.  &  El.  441.  Andrews  v.  Salt,  L.  K. 
8  Q.  B.  153;  Grimes,  an  infant,  Q.  B.  (Ireland),  Trinity  Term,  1877. 

(c)  See  Wellesley  v.  Duke  of  Beaufort,  2  Uuss.  ]. 


RIGHT   TO   CUSTODY  IX   EQUITY.  315 

to  the  custody  and  education  of  the  child,  assumed    Custodj 
authority  to  conti'ol  these  rights  and  wishes  when  Edxcation 
they  came  in  conflict  with  the   welfare  and  real  '     ' 
interest  of  the  infant  coming  within  its  wardship. 

In  the  Court  of  Chancery  the  guardian's  rights 
were  deemed  to  be  in  the  nature  of  a  trust,  and  if 
not  solely  for  the  benefit  of  the  child,  certainly  not 
for  his  own  gratification,  but  with  reference  to  his 
duties  and  the  public  welfare,(a)  and  whenever  the 
exercise  of  those  rights  was  calculated  to  become 
prejudicial  to  the  health  or  happiness(6)  or  wel- 
fare, and  in  certain  cases  to  the  pecuniary  interests 
of  the  child,  they  might  be  controlled.  Where  the 
legal  guardian  (even  the  father)  was  unfit  to  have 
the  direction  of  the  character  or  morals  of  the  child, 
or  had  neglected  his  duty  or  abused  his  trust  ;(c) 
and  if  a  father  were  living  in  habitual  drunken- 
ness, incapacitating  himself  from  taking  care  of  his 
children's  education,  he  will  be  dealt  with  as 
unable  to  discharge  the  duties  of  a  parent.  ((?) 
Again,  where  the  father  had  willingly  handed  over 
the  custody  of  his  child  to  a  stranger  in  considera- 
tion of  pecuniary  advantage  to  the  child  or  to  him- 
self, and  it  would  be  detrimental  to  the  interests  of 
the  child  for  him  to  rer.ume  it,  the  Court  of 
Chancery  would  prevent  him  from  doing  so,  and 
from  withholding  from  the  child  the  education  to 
which  it  was  entitled. (?) 

But  when  a  father  has  not  forfeited  or  abused 
his  natural  right  to  the  custody  of  his  child,  the 
Court  would  not  deprive  him  of  it  on  the  ground 


(a)  Hope  V.  Hope,  8  De  Gex,  Mac.  &  G.  at  p.  743,  ^e?-  Turner, 
L.  J. 

(6)  See  III  re  Browne,  2  Ir.  Chan.  Eep.  161. 

(c)  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  at  p.  30,  Lord  Elclon. 

(rf)  lb. 

(e)  Lyons  v.  Bleukin  Jacob,  245. 

p2 


816  EELIGIOUS   EDUCATION   AT   LAW. 

^'amf^    of  poverty  merely,  unless  it  was  manifestly  pre- 
Ecincntion  uidicial  to  the   child's  interests. (a)     Latterly  the 

of  Infants.    '  .  .  ^    ^  "^ 

—  Court  of  Divorce  in  England  has  been  armed  with 
powers  of  saying,  whenever  it  sees  the  necessity  for 
a  divorce,  what  is  right  and  proper  to  be  done  with 
the  children.  (6) 

Even  in  the  most  ordinary  case  where  a  child  was 
made  a  ward  of  the  Court  of  Chancery,  the  Court  so 
far  controlled  the  father's  or  testamentary  guardian's 
rights  as  to  prohibit  him  from  removing  the  child 
from  the  jurisdiction  of  the  Court  without  its 
special  leave. 

But,  in  order  to  deprive  a  father  of  the  custody  of 
his  child,  the  Court  should  be  satisfied  that  he  has 
conducted  himself  so  as  to  render  it  not  merely 
better  but  essential  to  its  safety  and  welfare  that  the 
father's  rights  should  be  interfered  with.(c) 

(379.)  On  an  application  for  a  writ  of  habeas 
MimfiUou  corpus  the  Court  of  Law  could  not  enter  into  the 
at  law.  question  of  religion — what  was  the  religion  of  the 
deceased  father,  or  in  what  religion  the  mother  or 
other  relative  may  intend  to  educate  the  child.(c?) 
Lord  Campbell,  C.J.,(e)  expressed  it  thus : — "The 
Court  knows  no  distinction  between  different  re- 
lioions,  and  will  not  interfere  with  the  discretion  of 
guardians  as  to  the  faith  in  which  they  educated 
their  wards." 

So,  where  an  application  was  made  to  the  Lord 

(a)  Exparte  Fynn,  2  De  Gex  &  Sniale,  457  ;  In  re  Curtis,  28  L.  J. 
Ch.  458;  See  /«  re  Moore,  11  Ir.  Com.  Law  Rep.  at  p.  38,  per 
O'Brien,  J. 

(6)  See  Hamilton  v.  Hector,  L.  R.  G  Chan.,  701. 

(c)  In  re  Curtis,  28  L.  J.  Chan.  458,5  Jur.  N.  S.  1147;  In  re 
Fynn,  2  De  Gex  &  Sniale,  457;  see  In  re  M'Cormicks,  Jli.,  2  Ir.  Eq. 
Rep.  2G4,  M.  R. 

((/)  Regina  v.  Clarke,  7  El.  &  Bl.  at  p.  193 ;  In  re  Darceys,  Infant.'!, 
11  Ir.  Com.  Law  Rep.  298. 

(0  Reijiua  V.  Alicia  Race,  7  El.  &  Bl.  at  p.  202. 


RELIGIOUS  EDUCATION  IN  EQUITY.  317 

Chancellor   (Eldon)   for   a   habeas  corpus,   in  liis    Custoiij 

...  ,  .  "'"^^ 

Common  Law  jurisdiction,  and  questions  arose  as  to  Educatioi 

religious   impressions  of    the  child,  he   directed   a      — 
petition  to  be  presented  to  him  in  Chancery  in  the 
minor  matter,  because  it  is  only  where  the  infant 
becomes  a  ward  of  the  Court  that  such   circum- 
stances could  be  attended  to.(a) 

(380.)  The  Court  of  Chancery  also  knew  no  rule  Reiidous 

!••  1  1  pni'1  Ti-  1  education 

as  to  religion  but  that  oi  the  highest  morality  and  in  equity. 
the  preservation  of  those  sacred  relations  which 
existed  between  father  and  child,  and  no  form  of 
the  Christian  faith  is  inconsistent  with  that  rule  of 
morality  or  the  observance  of  the  right  which 
Providence  has  conferred  upon  the  parent  of  super- 
intending, directing,  and  taking  upon  himself  the 
sole  responsibility  of  the  religious  education  of  his 
child.(6) 

As  expressed  in  the  most  recent  case  on  this  Eights  as 
subject,  the  position  of  a  Court  of  Equity  in  relation  in  equfty. 
to  morals  and  to  religion  is  different.  It  assumes 
as  incontrovertible  the  great  principles  of  moralit}^, 
and  so  assuming  it  protects  them  in  the  child,  and 
prohibits  the  parent  from  disturbing  them.  Of 
religious  systems — how  far  true,  how  far  in  error — it 
pronounces  nothing;  it  neither  favours  nor  condemns 
any,  and  views  the  claims  and  rights  of  all  with 
perfect  im2:)artiality.(c)  The  court  has  held  it  to  be 
no  abuse  of  the  parental  authority  if  the  father 
exercise  his  right  to  educate  his  child  in  his  own 
religion — althouoh  the  court  might  think  that  the 
child  would  be  more  happy  and  contented  or  better 

(a)  Lyons  v.  Blenkin  Jacob,  245 ;  see  Lord  St.  Leonards'  Handy- 
Book,  pp.  82,  83. 

(6)  Davis  V.  Davis,  10  W.  R.  245,  V.  C.  Wood,  and  see  Lord  Eldon, 
Lyons  v.  Blenkin  Jacob,  245  ;  In  re  Grimes,  an  Infant,  Chancerj',  L. 
C.  Ball,  Ir.  Rep.  11  Eq.  465. 

(c)  In  re  Grimes,  uhi  supra,  at  p.  470. 


SIS 


CONTRACT  AND   ACQUIESCENCE. 


Citstodu  provided  for,  if  left  to  those  who  might  have  had  the 
EchKotion  care  of  it,(a)  or  merely  because  the  father  refuses  to 
0/  Infants,  .^j^jjg  j^^  ^  contract  or  agreement  to  that  effect.(6) 
So  again,  although  the  father  has  not  the  power 
of  reo-ulating  after  his  death  the  faith  in  which  his 
children  are  to  be  brought  up,  yet  the  Court  of 
Chancery  considered  that  the  child  being  a  ward  of 
court,  must  be  brought  up  according  to  the  wishes 
or  in  the  religion  of  the  father  in  the  absence  of 
special  circumstances  to  the  contrary,  and  that 
neither  the  mother  nor  the  testamentary  guardians 
can  be  permitted  to  bring  up  the  child  in  any  other 
religion.(c)  However,  a  Protestant  parent  appoint- 
ing a  Roman  Catholic  guardian  to  his  child,  cannot 
more  distinctly  indicate  the  faith  in  which  he 
wishes  his  child  to  be  brought  up.(cZ) 

(381.)  The  Court  of  Chancery  regarded  the  rights 
of  a  guardian,  especially  of  a  father,  as  being  so 
quiescence,  j^^^^h  of  a  trust  with  duties  annexed  to  it,  that  it 
cannot  be  waived  or  renounced  or  divested  by  con- 
tract merely  ;(e)  and,  indeed  neither  at  law(/)  nor 
in  equity  can  a  father  by  any  covenant  or  agree- 
ment either  ante-nuptial  or  post-nuptial,  deprive 
himself  of  the  right  to  the  custody  or  to  control  the 
religious  education  of  his  infant  children.(/)  Such 
agreements  ought,  however,  to  have  weight  in  con- 
sidering whether  a  father  has  abdicated  his  right  to 
have  the  custody  and  to  direct  the  education  of  his 


Kffect  of 
contract 
and  ac- 


(a)  Andrews  v.  Salt,  L.  E.  8  Cli.  022. 

(i)  In  re,  Browne,  2  Ir.  Chan.  Kep.  at  p.  160. 

(c)  Andrews  v.  Salt.,  L.  R.  8.  Ch.  at  p.  627. 

(cT)  Talbot  V.  Earl  Shrewsbury,  -t  M.  and  Co.  486,  per  Lord 
Cottenham. 

(e)  Hope  V-  Hope,  8  De  Gex,  Mac.  and  Gord.  731;  Tn  re  Browne, 
2  Ir.  Chan.  Rep.  150;  And^e^vs  v.  Salt,  L.  R.  8  Ch.  622. 

(/)  In  re  Alicia  Race,  7  El.  &  Bl.  204 ;  In  re  Andrews,  L.  R.  S  Q.  B. 
p.  158,  per  Archibald,  J. ;  In  re  Moore,  11  Ir.  Com.  Law.  Kep.  1 
Q.  B. 


ACQUIESCENCE   IN  ACTS  DONE.  319 

children  in  liis  own  religion  ;(a)  and  the  court  will    Castochj 
pay  attention  to,  and  sometimes  enforce  any  reason-  Education 
able  agreement  entered  into  as  to  the  child  spending  ^■f^"-f""'^- 
part  of  his  time  or  holidays  with  particular  rela- 
tives, (6)     It  appears  to  have  been  held  that  a  deed 
of  separation  giving  the  custody  or  control  of  infants 
to  their  mothers  may  be  enforced  if  it  be  for  the 
benefit  of  the  infants. (c) 

(382.)  And  a  father  may  abdicate  his  authority  Acquies- 
or  right  to  direct  the  religious  education  of  his  acts  done, 
children, by  acquiescence  in  their  being  brought  up  in 
a  religion  from  which  he  dissents,  provided  the 
child  has  arrived  at  that  period  of  life  when  he 
or  she  would  be  capable  of  forming  particular 
religious  impressions  of  a  permanent  character.  If 
such  impressions  have  been  actually  formed  even  a 
father's  interference  with  them  wotdd  be  reg-arded 
as  an  abuse  of  the  parental  authority,(cZ)  inasmuch 
as  an  attempt  to  alter  the  religious  opinions  of  the 
child  might  lead  to  fatal  results  in  unsettlino-  its 
religious  faith  altogether,  and  landing  it  in  scepti- 
cism or  infidelity,(e)  and,  moreover,  to  imperil  the 
ha^ppiness  and  tranquillity  of  the  child  by  raising  a 
conflict  between  conscience  and  obedience.(/)  Even 
if  a  child  had  been  stolen  from  its  parents  for  the 
sake  of  proselytism,  and  had  been  brought  up  in 
a  particular  form  of  religion,  after  a  certain  age 
even  in  such  a  case,  the  court  would  hardly  compel 
the  child  to  be  educated  in  a  different  religion, ((/) 
and  the  same  rule  was  observed  by  the  court  where 

(a)  Andrews  v.  Salt,  uM  supra. 

(b)  See  Hamilton  v.  Hector,  L.  R.  6  Ch.  701.      (c)  Swifte  v.  Swlfte, 
11  Jut.  N.  S.  458. 

(d)  In  re  Browne,  2  Ir.  Chan.  Eep.  at  p.  ICl.     See  Kellers,  Mi., 
5  Ir.  Chan.  Eep.  328,  M.  R. 

(e)  Hawksworth  v.  Hawksworth,  L.  R.  6  Chan,  at  p.  542  ;  James, 
L.  J. ;  Witty  v.  Marshall,  1  You.  and  Col.  Ch.  Ca.  68. 

(y)  In  re  Grimes,  ubi  supra,  p.  471. 

((?)  Hawksworth  v.  Hawksworth,  at  p.  545,  per  L.  J.  Mellish. 


820  ACQUIESCENCE  IN   ACTS  DONE. 

Custody  the  child  was  surreptitiously  taken  abroad  from  its 
Education  control  Rud  in  defiance  of  its  order,  and  educated 
of  nfants.  -^  ^  rcligion  difierent  from  what  the  court  had 
directed. (a)  So  far,  Courts  of  Equity  both  in 
England  and  Ireland  have  felt  bound  to  protect 
the  conscientious  convictions  of  a  minor,  although 
adverse  to  the  religion  or  even  the  declared  wishes 
of  the  father,  living  or  deceased,  looking  to  the 
welfare  of  the  child,  in  which  are  involved  health, 
happiness,  and  tranquillity  essential  to  moral  im- 
provement. (6) 

But  nothing  but  the  most  coercive  case  can  justify 
interference  with  the  authority  of  a  father  over 
his  child  and  a  jurisdiction  to  do  so,  imperatively 
demands  extreme  caution  in  its  exercise,  and  the 
Court  must  see  that  it  is  not  dealing  with  transitory 
impressions,  easily  adopted  and  readily  abandoned, 
and  it  requires  that  it  be  established  with  reasonable 
certainty  that  opinions  of  this  character  have  some 
root,(c)  and  where  the  child  has  varied  considerably 
in  its  professions  the  Court  can  scarcely  make  any 
confident  prediction  what  will  be  the  views  it  may 
ultimately  adopt,  and  the  conditions  indispensable 
to  justify  its  interposition  do  not  exist.(c.) 

The  Court  must  be  judicially  satisfied  that  its 
ward  is  competent  to  form  and  has  formed  settled 
religious  convictions,  and  usually  ascertains  this  by  a 
j)ersonal  examination  of  the  child,  and  having  ascer- 
tained the  fact  it  is  its  duty  to  provide  that  they 
shall  be  respected  in  good  faith  by  all  who  have 
access  to  ii(d)  and  not  overborne  by  paramount 
authority. 

The  question  has  been  raised  as  to  the  earliest 


(n)  In  re  Brownes,  Minors,  8  Ir.  Chan.  Rep.  172. 
(b)  In  re  Grimes,  an  Infant,  ubi  supra,  at  p.  471. 

(0  lb. 

(d)  In  re  Browne,  8.  Ir.  Chan.  Rep.  1 7G. 


EULES   OF   EQUITY   TO   PREVAIL.  321 

time  when  it  is  advisable  to  attempt,  by  a  personal  cmtody 
interview  with  a  child,  to  ascertain  if  permanent  im-  Ediwatiou 
pressions  have  been  made  on  its  mind.  The  age  of  "  HI!!  "' 
seven  was  considered  too  early,(a)  and  so  eight  years 
and  six  months  in  another  case. (6)  In  the  celebrated 
case  of  Stourton  v.  Stourton,(c)  the  child  was 
nine  and  a  half  years,  of  precocious  intellect,  and 
prematurely  instructed  by  a  proselytizing  mother 
in  matters  of  religious  controversy,  but  subsequent 
Judges  have  declared  that  experiment  had  been 
carried  to  the  very  verge  of  safety.(cZ)  At  the 
ages  of  nine  and  eio-ht  the  Lord  Chancellor  has 
examined  children.(e)  In  one  case(/)  V.  C.  Wood, 
after  examining  a  child  of  twelve  years  and  finding 
it  had  unquestionably  strong  religious  impressions, 
nevertheless  treated  them  as  not  necessarily  per- 
manent and  irrevocable,  so  as  to  overbear  the  high 
and  sacred  right  of  the  father.  At  these  early  ages 
the  Court  has  sometimes  contented  itself  with  a 
modified  form  or  order,  not  removing  the  child  from 
its  former  custody  with  a  near  relative,  but  directing 
it  should  be  brought  up  and  educated  in  the  religion 
of  its  father  and  under  a  resident  governess  of  the 
same  faith. (/)  In  one  case  this  indulgence  resulted  in 
the  defeat  and  disappointment  of  the  intentions  and 
authority  of  the  Court,  by  the  removal  of  the  child  to 
France,  until  its  religious  views  had  been  irrevocably 
fi:xed.(f/) 

(383.)  The  sub-section  10  of  section  28  directs  Rules  of 

equity  to 

prevail, 
(a)  In  re  Browne,  2  Ir.  Chan.  Rep.  p.  161. 
(6)  Hawksworth  v.  Hawksworth,  L.  R.  6  Chan.  539,  L.  J.J. 

(c)  Stourton  v.  Stourton,  8  De  Gex,  Mac.  &  Gor.  760. 

(d)  Hawksworth  v.  Hawksworth,  ubi  supra,  per  L.  J.  James  and 
L.  J.  Mellish,  at  pp.  543,  544. 

(e)  Meades,  Minors,  Ir.  Rep.  5  Eq.  98. 

(./)  Davis  V.  Davis,  10,  W.  R.  245,  V.  C.  W. 

{g)  See  In  re  Browne,  8  Ir.   Chan.  Rep.  172 ;   See  also  Lyons  v. 
Blenkin  Jacob,  24.5. 

p3 


0-22,  RULES   OF   EQUITY   TO   PREVAIL. 

Custody  that  in  all  such  questions  relating  to  the  custody 
EdHcoHon  and  education  of  infants  the  rules  of  equity  shall 
of  Infants.  pj.gyg^|]^  ^^^  accoi'dingly  in  a  case  occurring  since 
the  English  Judicature  Act/ a)  where  a  father 
applied  for  a  writ  of  Habeas  Corpus  to  get  the 
possession  of  his  child  from  the  custody  of  his 
maternal  grandmother,  and  it  appeared  that  the 
applicant  was  a  person  of  intemperate  habits  and 
vicious  life,  in  the  habit  of  using  gross  and  disgusting 
language  as  well  as  personal  violence  to  his  wife, 
the  Queen's  Bench  Division  of  the  High  Court 
refused  to  interfere  with  the  custody  of  the  child, 
considering  that  to  do  so  could  not  but  be  seriously 
prejudicial  to  the  moral  safety  and  welfare  of  the 
cliild.  And  so  far  the  action  or  rather  inaction  of 
the  Court  was  easy  and  clear.  But  if  the  application 
had  been  to  remove  the  child  from  the  custody  of 
its  father  or  other  legal  guardian,  the  action  of  the 
Court  would  be  more  or  less  dependent  on  conditions 
such  as  these  : — The  ability  to  provide  another  fit 
and  proper  guardian  over  whom  the  Court  could 
exercise  a  proper  surveillance  with  suitable  directions, 
and  the  ability  to  secure  some  permanent  provision 
for  the  maintenance  and  education  of  the  child ;  and 
in  view  of  these  requirements,  even  should  they  be 
fulfilled,  the  Court  would  probably  transfer  the 
proceeding  to  the  Chancery  Division  to  which 
belongs  the  wardship  of  infants  in  general. 
Conditions  (384.)  It  will  be  observed  that  those  equitable  and 
beneficial  grounds  on  which  the  interposition  of  the 
Lord  Chancellor  on  behalf  of  infants  were  called 
into  action,  arose  only  in  regard  to  such  as  had 
become  wards  of  the  Court  of  Chancery.  When  the 
Lord  Chancellor  was  acting  under  his  Common 
Law  j  urisdiction  as  on  an  application  to  him  for  a 


(a)  In  re  Goldswortliy,  L.  R.  2  Q.  B.  D.  75. 


RULES  OF   EQUITY  TO   PREVAIL.  323 

writ  of  Habeas  Corpus,  his  arm  was  as  short,  and  Cmtody 
his  discretion  as  limited  as  those  of  any  other  Judge  EiUuation 
at  the  Common  Law.  "-^  "fonts. 

But  to  exercise  this  jurisdiction  of  interference 
with  the  legal  rights  of  guardians  as  to  the  custody 
and  education  of  their  wards  to  any  good  purpose, 
the  court  should  have  some  guarantee  of  a  compe- 
tent maintenance  or  provision  being  made  for  the 
infant  ward,  and  faihng  this  has  refused  to  change 
its  custody,(a)  not  from  want  of  jui'isdiction,  but  a 
want  of  means  to  exercise  it,  for  the  court  could  not 
take  u])on  itself  the  maintenance  and  education  of 
all  the  children  in  the  kingdom. (6) 

In  some  cases  the  court  has  acted  on  an  un- 
dertaking to  support  the  children,  (c)  In  other  cases 
it  has  required  a  suitable  sum  to  be  lodged  in  court 
to  maintain  the  children  in  a  manner  suitable  to 
their  condition.  This  provision  might  come  from 
strangers,  as  in  the  case  of  Alicia  Ilace.((i)  But  In 
re  Fynn,(e)  the  court  refused  to  act  on  the  covenant 
of  the  children's  grandmother  to  provide  for  them. 

In  Shelley's  case  a  sum  of  £2,000  was  trans- 
ferred by  the  grandfather  to  trustees  for  the  sup- 
port of  the  children. 

(a)   III  re  Fynii,  2  De  Gex  &  Sma.  457. 

(6)  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  \,  per  Lord  Eldon. 

(c)  Warde  v.  Warde,  2  Ph.  786 ;  Regiua  v.  Alicia  Race,  uhi  supra  ; 
O'Malleys,  Minors,  8  Ir.  Chan.  Rep.  291. 

(rf)  Not  reported  on  this  point,  but  see  In  re  Meades,  Minors,  Ir.  Rep. 
5  Eq.,  at  p.  99,  where  V.  C.  Kindersley's  order  Avas  produced  in  court. 

(e)  In  re  Fynus,  infants,  2  De  Gex  &  Smale.  457. 


[     324     ] 

CHAPTER  XLII. 

General  Prevalence  of  Equity. 

Section  28,     Subsection  (11). 

385.  General  Preyalence  of  Rules  in  Equity,  324. 

386.  Accident,  325. 

387.  Actio  Pei-sonalis,  326. 

388.  Administration  of  Assets,  Legal  and  Equitable,  327. 
3811.  After-acquired  Propertv,  327. 

390.  Attachment  of  Equitable  Debts,  327. 

391.  Glioses  in  Action,  328. 

392.  Contribution,  328. 

393.  Discovery,  329. 

394.  Equity  to  a  Settlement,  380. 

395.  Fraud  in  Deeds,  330. 

396.  Interest,  Rate  of,  330. 

397.  Jus  Accrescendi,  331. 

398.  Lien,  331. 

399.  Mistalve  in  Written  Instruments,  332. 

400.  Mistake  of  Law,  333. 

401.  Partnership,  334. 

402.  Part  Performance,  335. 

403.  Retainer  and  Preference,  385. 

404.  Separate  Estate,  335. 

405.  Taxation  of  Costs,  336. 


equity. 


General  (385.)  Section  28,  subsection  (11)  (a)  is  as  fol- 

prc'valence    , 

of  rules  of     lOWS  : 

"  Generally,  in  all  matters  not  hereinbefore  parti- 
cularly mentioned  in  which  there  is  any  conflict  or 
variance  between  the  rules  of  Equity  and  the  rules  of 
the  Common  Law  ivWi  reference  to  the  same  matter, 
the  rules  of  Equity  shall  prevail." 

Some  eminent  authorities,  and  amongst  them  Lord 
Cairns,  are  said  to  have  expressed  themselves  that  it 
was  a  fallacy  to  suppose  that  the  rules  of  Law  and 
Equity  did  or  could  conflict,  seeing  that  they  re- 
lated to  different  classes  of  cases,  and  that  these  en- 
actments have  been  introduced  in  deference  to  the 
apprehension  of  certain  judges — notably  Lord  Chief 
Justice  Cockburu  and  the  late  Lord  Romilly — who 
entertained  notions  that  the  rules  of  Law  and  Equity, 

(«)  .1.  A.,  1877,  s.  28,  subs.  (11). 


ACCIDENT.  325 

were  sometimes  different  on  the  same  facts  and  aemmi 
questions,  or  "  with  reference  to  the  same  matter,"  of  Equity'. 
as  the  subsection  expresses  it.(a)  Without  pretend- 
ing  to  offer  anything  like  a  complete  or  exhaustive 
catalogue  of  instances  in  which  the  rules  of  Law  and 
Equity  did  conflict  or  were  supposed  to  conflict,  it 
may  not  be  without  use  to  enumerate  in  alpha- 
betical order  some  few  instances  which  have  oc- 
curredto  us  by  way  of  illustration  merely,  on  a  matter 
which  has  become  of  interest  if  not  of  importance. 

(386.)  The  rules  or  principles  of  Law  and  Equity  Accident. 
as  regards  the  relief  which  "  accident "  entitles  a 
party  to,  as  a  plaintiff  or  as  a  defendant,  were  some- 
what difierent.  At  law  inevitable  accident  was  a 
defence  to  an  action  for  damages  occasioned  by  acts 
done.  It  was  defined,  such  as  arises  from  act  of  God 
or  vis  major,  an  earthquake,  a  storm  or  flood  of  rain 
causing,  for  example,  an  artificial  pond  to  overflow, 
there  being  no  negligence  in  the  construction  or 
maintenance  of  the  work.  (6)  In  equity,  "  accident" 
meant  something  more,  and  included  such  unfore- 
seen events,  misfortunes,  losses,  acts,  and  omissions 
as  are  not  the  result  of  any  negligence  or  miscon- 
duct of  the  party. (c)  Equity,  treated  it  as  inequit- 
able that  loss  should  fall  upon  a  party  from  circum- 
stances beyond  his  own  control,  or  from  his  acts  done 
in  entire  good  faith  and  in  the  performance  of  a 
supposed  duty.((i)  Thus  it  afforded  relief  in  respect 
of  lost  deeds  and  bonds  requiring  an  affidavit  of  the 
loss  accompanying  the  claim,  to  prevent  wanton 
change  of  the  forum,  which  probably  may  now  be- 
come unnecessary. 

So  as  regards   lost  bills   of  exchange   or   other 

(a)  See  Finlason's  New  Judicial  System,  p.  125,  and  vide  a)ife{o)  p.  IJ. 
(6)  See  Nichols  v.  Marsland,  L.  K.  10  Exch.  255 ;  Ryland  Kearney 
V.  London  and  Brighton  Railway  Companj',  L.  R.  5  Q.  B,  411. 
(c)  Story,  Eq.  Jur.  §  78.     (d)  lb.  §  89. 


32G  ACTIO    PERSONALIS. 

General    necfotiable  instruments  until  lately(a)  a  Court  of 

Prevnlevre         ^  t    r.  i  •  i  i 

ofEquUij.  Law  could  give  no  reliei,  because  it  could  not  settle 
a  proper  indemnity  against  future  claims.  As  to 
negotiable  instruments  not  merely  lost  by  accident 
but  destroyed,  there  seems  to  be  some  doubt  whetlier 
there  was  a  variance  between  the  rule  of  law  as  laid 
down  by  C.  J.  Tindal,  in  Hansard  v.  E,obinson,(6) 
and  in  Equity,(c)  but  the  doubt  now  has  no 
further  value.  There  was  a  further  doubt  whether 
a  Court  of  Law  could  settle  an  indemnity  where 
the  action  was  not  on  the  bill  directly,  but  upon 
the  consideration  for  it,  ex.  gr.,  goods  sold  and 
delivered,  or  where  the  defence  was  that  a  bill  of 
exchange  had  been  given  on  account  of  the  cause 
of  action.  (cZ)  This  doubt  is  no  longer  material.  The 
application  for  the  indemnity  should  be  made  before 
plea  pleaded. (e)  Accidental  loss  or  misapplication 
of  assets,  bond  fide,  and  without  negligence  by  a 
personal  representative  of  a  deceased  person  was 
ground  for  relief  in  Equity,  although  it  was  not  avail- 
able at  Law  under  a  plea  oi  plene  adminidravit.(f) 
Actio  (."JST.)  The  rule   actio  persoTialis  moritur   cum 

personalis.  rp^y^Q-^i^  which  prevailed  at  Law  was  recognised  and 
adopted  in  Equity  in  its  administration  of  assets, 
ex.  gr.,  where  compensation  in  the  nature  of  damages 
was  sought  on  the  ground  of  fraud,  or  misrepre- 
sentation on  the  part  of  a  deceased  person  whose  assets 
were  being  administered  unless  it  were  proved  that 
the  assets  had  received  benefit  from  the  deceit. (^) 

(a)  See  Com.  Law  Pro.  Act,  185G,  s.  9U  ;  aud  see  JI'Doiiuell  v. 
Murray,  9  Ir.  Com.  Law  Rep.,  495  Ex. 

(h)  Hansard  i;.  Robinson,  7  B.  &  C.  95. 

(c)  See  Wright  v.  Lord  Maidstone,  1  Kay  &  J.  708. 

(<i)  Naisli  V.  Macken,  Ir.  Rep.  5  C.  L.,  51  Ex. 

(e)  See  Clarke  v.  Bowman,  7  Ir.  Com.  Law  Rep.,  49  Ex. 

(/)  See  2  Williams  on  Executors,  pp.  1807-8,  7tli  Edition.  Crosse 
V.  Smith,  7  East,  205. 

((/)  Peck  V.  Gurney,  L.  R.,  G  H.  L.  C.  377. 


ADMINISTEATIOX  OF  ASSETS — ATTACHMENT  OF  DEBTS.  327 

(388.)  As  to  the  distinction  between  leo-al  and     General 
equitable  assets  and  the  mode  of  their  administra-  of  Equity. 
tion   there   can  scarcely  be   said  to  have   been  a  Adminis- 
vaviance   with  reference  to  the   same  matter — an  asget°" " 
executor  dealt  with  legal  assets  according  to  certain  |fiu/J"iy, 
established  priorities  and  the   Court  of  Chancery 
with  equitable  assets — generally  without  regard  to 
priorities  amongst  creditors  of  all  grades,  'pari passu. 
But  legal  assets  were  disposed  of  in  the  like  way  in 
Equity  as  at  Law.     The  statute  32  &  33  Vic,  c.  46, 
had,  as  regards  estates  of  persons  dying  on  or  after  1st 
Januar3^  18 70,  levelled  the  priority  of  specialty  debts 
over  simple  contract  debts  in  the  administration  of 
legal  assets,  saving  any  specific  lien  or  charge.    Under 
this  it  has  been  held  that  rent  secured  by  covenant 
has  now  no  priority  over  simple  contract  debts  ;(a) 
and  subsection  (1)  of  iiiis  section  28  of  the  J.  A.  has 
further  taken  away  some  advantage  of  secured  credi- 
tors on  deficient  estates. 

After  an  executor  has  paid  away  the  assets  under 
the  orders  of  the  Chancery  Division  of  the  Court,  it 
would  seem  almost  of  course  for  any  other  Division 
to  stay  an  action  by  a  creditor  in  respect  of  the 
same  assets.  (?>) 

(389.)  As  to  the  validity  of  the  transfer  of  "  after-  After- 
acquired  property  "  included  in  a  bill  of  sale  or  deed  property. 
of  settlement  which  was  regarded  void  at  Law  but 
valid  in  Equity,  the  conflicting  rule  of  Equity  must 
now  prevail  and  be  effectuated,  (c) 

(390.)  The  distinction  between  legal  and  equitable  Attacii- 
debts  has  been  so  far  modified  that  a  trust  debt  can  equitable 
not  only  be  the  subject  of  claim  by  way  of  action  and 
specially  indorsed  on  the  writ  as  such,  but  further 
it  may  now  be  attached  under  a  garnishee  order.fc/) 

(a)  Shirreff  v.  Hastings,  25  W.  R.  342,  V.  C.  M. 

(J)  See  Stevens  v.  Phillips,  L.  R.  10  Chan.  423,  per  Mellish,  L.  J. 

(c)  See  Anon,  W.  K,  187G,  G4,  Archibald,  J. ;  Anon,  \V.  N.,  1875, 
203  ;  Holroyd  v.  Marshall,  10  H.  L.  C.  191. 

(d)  WUson  V.  Dundas,  W.  N.,  1875,  232  ;  20  Sol.  Jour.  99,  Quaiu,  J. 


328 


CHOSES   IN   ACTION — CONTRIBUTION. 


Glioses  in 
action. 

Contribu- 
tion. 


General        (391.)  The  different  rules  of  Law  and  Equity  as 

Prevalence    ,  .  ,       f      ^  •  l'  ^  ^  c 

of  Equity,  to  assignment  oi  choses  in  action  as  have  been  tor 
the  most  part  reconciled,  as  we  have  seen  in  a  pre- 
vious chapter  xxxvi,  p.  258. 

(392.)  As  regards  the  right  to  contribution  be- 
tween co-debtors,  co-sureties,  and  co-contractors, 
incurring  a  common  liability  in  respect  of  one  and  the 
same  debt  or  transaction,  the  rules  of  Law  and 
Equity  did  conflict,  although  as  between  tortfeasers, 
the  rules,  both  of  Law  and  Equity,  so  far  agreed 
that  there  should  be  no  contribution.  However 
costs  paid  by  one  defendant  under  a  decree  against 
two,  were  treated  as  of  the  nature  of  debt,  and  not 
damages,  (ft) 

At  law  the  right  to  contribution  was  supposed  to 
arise  out  of  contract :  in  equity,  it  was  founded  on 
the  natural  duty  expressed  in  the  maxim.  Qui  sent  it 
comriioduin  sentire  debet  et  onus,  so  that  it  might 
arise  between  strangers ;  but,  of  course,  contract 
may  modify  or  alter  the  right.  The  maritime  law 
of  genera]  average  and  contribution  was  founded  on 
the  same  principle.(6)  The  Common  Law  doctrine 
being  based  on  a  supposed  contract,  did  not  con- 
sider that  it  involved  more  than  a  restoration  of  a 
rateable  share  of  the  sum  actually  paid,  and  that, 
without  interest,  whereas  equity  regarding  it  as  an 
obligation  of  complete  indemnity,  it  covered  the 
interest  as  well  as  the  principal  money.(c)  Again, 
in  case  of  the  death  or  insolvency  of  some  of  the 
parties  bound  to  contribute,  the  plaintiff  could  only 
recover  from  the  solvent  or  surviving  parties,  their 
aliquot  shares,  according  to  the  original  number  of 

(f()  Staples  V.  Smith,  6  Ir.  Eq.  liep.  211,  Ex.;  Archbishop  of  Dublin 
V.  Trimbleston,  13  Ir.  Eq.  Uep.  08 ;  and  see  Furlong  v.  Scanlan,  Ir. 
Rep.,  9  Eq.,  V.  C.  202. 

(&)  See  Mavro  v.  Olean,  Marine  In.s.  As.,  L.  K.,  10  C.  P.  414,  per 
Blackburn,  J. 

(c)  See/rt  re  Swan's  Estate.  Ir.  Rep.  4  Eq.  211,  Ch.  Ap.  Ct.  over- 
ruling Onge  V.  Truelock,  2  Mol.  42 ;  Salkeld  v.  Abbott,  Hay.  and  Jo.  1 10. 


DISCOVEEY. 


329 


the  contribiitories  liable ;  whereas,  in  equity,  the  f^^auL 
obligation  of  complete  indemnity  involved  that  the   of  Equity. 
solvent  and  surviving  parties  should  contribute  to- 
wards making  up   the  shares  of  the  insolvent  or 
deceased  contributories.(rt) 

The  right  of  a  co-surety  who  is  obHged  to  pay 
the  entire  debt  to  sue  at  law  the  executors  of  his 
deceased  co-surety,  had  been  questioned. (6) 

(393.)  As  regards  the  extent  of  discovery  which  Discovery. 
a  party  litigant  was  entitled  to  get  from  his  adver- 
sary upon  interrogatories,  or  by  way  of  inspection, 
there  seemed  to  be  some  slight  variance  between  the 
rules  of  law  and  equity.  In  equity  a  class  of  inter- 
rogatories were  demurrable  as  tending  to  criminate 
the  party  required  to  answer,  which  might  be 
administered  at  law,  viz.,  in  an  action  of  libel 
interrogatories,  asking  defendant  whether  he  had 
not  been  instrumental  in  publishing  a  libel,  the  sub- 
ject of  the  action.(c)  On  the  other  hand,  equity 
was  in  the  habit  of  enforcing  inspection  in  certain 
cases  in  which  it  was  denied  at  law,  for  example, 
letters  between  a  defendant  and  his  agent.((/j 
So  as  to  the  practice  of  the  Court  of  Cliancery 
to  order  the  production  of  a  document  which  was 
not  sufficiently  protected  by  the  affidavit  of  the 
party  who  has  the  custody  of  it,  and  that  the  Judge 
has  no  discretion  in  the  matter,  but  is  bound  to 
order  the  production,  unless  there  be  grounds  for 
permitting  a  further  affidavit  to  be  made.(e) 

(«)  Lefroy  v.  Gore,  1  Jo.  and  Lat.  570,  7  Ir.  Eq.  Rep.  220.  In  re 
M'Donaghs,  Minors,  Ir.  Rep.  10  Eq.  at  p.  271,  L.  C.  Ball. 

(6)  Story,  §  497.  Contra,  Bataod  v.  Hawes,  2  El.  and  Bl.,  at  p.  297, 
per  Lord  Campbell.  C.  L.  Ashby  v.  Ashby,  7  B  &  C.  44-4,  Bayley,  J. 
See  infra,  (397). 

(c)  Bartlett  v.  Lewis,  12  C.  B.  N.  S.,  249,  Osborn  v.  London  Dock 
Cr.  10  Ex.  698,  Hill  v.  Campbell,  R.  L.  10  C.  P.  222. 

(<f)  See  English  v.  Tottie,  L.  R.,  1  Q.  B.  D.  141,  24  W.  R.  393. 

(e)  See  Bustros  v.  White,  L.  R.  1  Q.  B.  D.  423,24  W.E.,  721,  20  Sol. 
Jour.  585,  A.  C,  a  decision  of  eight  judges. 


ooO  EQUITY   TO   SETTLEMENT — FRAUD. 

General  (394.)  As  regards  a  wife's  equity  to  a  settlement 
of  Equity,  out  of  Hioneys  recovered  in  a  Court  of  Equity,  it 
Equity~to  a  was  asked  by  Lord  Chief  Justice  Cockburn,  whether 
ofwi^fe.*^"^  this  rule  of  equity  should  apply  to  cases  in  which 
the  husband  may  recover  in  a  Common  Law  Divi- 
sion of  the  High  Court  personal  property  in  right  of 
his  wife,  since  every  division  of  the  Court  is  a 
Court  of  Equity. (a)  The  obvious  answer  to  such  a 
question  would  seem  to  be,  that  it  must  prevail  in 
all  cases  in  which  the  High  Court  is  asked  to  exer- 
cise its  jurisdiction  as  a  Court  of  Equity  to  realize 
the  fund,  in  which  case  the  Court,  is  bound  to  exer- 
cise the  jurisdiction  as  nearly  as  may  be,  in  the  same 
manner  as  the  same  might  have  been  exercised  in 
the  Court  of  Chancery  ;(6)  and  the  rule  was  never 
applied  by  a  Court  of  Equity  to  the  recovery  of 
l^roperty  by  the  husband  on  a  purely  legal  title  ; 
but  in  pursuance  of  the  principle  expressed  in  the 
maxim,  that  he  who  seeks  equity  must  do  equity.(c) 
d^fd '^  ^^  (o!)5.)  Fraud  in  the  shape  of  misrepresentation 
or  concealment  of  material  facts  was  a  good  defence 
to  an  action  on  a  covenant  in  a  deed  at  law  as 
well  as  in  Equity.(rZ)  It  may  now  be  relied  on 
by  a  plaintitf  in  reply  to  a  deed  relied  on  by  a 
defendant. (e)  But  that  class  of  fraud  wliich  con- 
sisted of  obtaining  the  execution  of  deeds  or  other 
instruments  by  reason  of  undue  influence,  or  taking 
advantage  of  the  mental  incapacity  of  the  grantor, 
was  not  generally  cognizable  at  law. 
Interest,  (396.)  In  an  action  at  law,  in   tlie   absence  of 

rate  of.  ii       •       ,i        t 

contract,  the  rate  oi  interest  was  usually  in  the  dis- 
cretion of  a  jury.  In  a  Court  of  Equity  it  was  in 
the  discretion  of  the  Court,  regulated,  however,  in 

(a)  Finlason.  p.  120.  (6)  J.  A.,  1877,  s.  2(J. 

(c)  See  Fox  v.  Bulkley,  L.  R.,  3  Chan.  U.  508,  25  W.  R.,  170,  A.  C. 

(d)  See  Evans  v.  Edmonds,  13  C.  B.  777;  Ilogaii  v.  llealy,  Ir.  Kej). 

10  C.  S.  6  c.  r. 

(0    Vide  ante  (203). 


INTEREST. — JUS   ACCRESCENDI — LIEN.  SSI 

ordinary  cases  by  a  o;eneral  order  as  to  a  certain  fixed    General 

Prevoleitce 

rate  called  the  Court  rate.     But  even  in  a  Court  of  of  Equity. 
Equity  where  the  demand  was  a  legal  demand,  it 
might  give  such  interest  as  a  jury  in  its  discretion 
might  have  given,   and  at  the  rate  in  use  when 
interest  first  became  payable. (a) 

(397.)  There  was  a  variance  between  the  rules  in  Jus 

^  '  acciescendi. 

law  and  Equity,  where  two  or  more  persons  were 
entitled  to  a  common  right  or  subject  to  a  common 
liability  and  one  or  other  of  the  parties  happened 
to  die  before  the  right  or  liability  was  ascer- 
tained or  adjudicated  upon.  Thus  where  several 
persons  make  a  joint  purchase  for  the  purpose  of 
a  joint  undertaking  or  partnership,  either  in 
trade  or  in  any  other  dealing,  although  they  were 
joint  tenants  at  law,  and  as  to  the  legal  estate,  yet 
in  equity  they  were  considered  as  tenants  in  com- 
mon as  to  the  beneficial  interest,  and  the  survivors 
were  deemed  to  be  trustees  for  those  who  happened 
to  die. (6)  So  similarly  liabilities  which  at  law  were 
only  joint,  were  treated  as  joint  and  several  in 
Equity,  and  tlie  assets  of  the  deceased  i)arty  might 
be  resorted  to.  Thus  for  a  bond  the  consideration 
of  which  was  a  partnership  debt.(c) 

It  would  seem  that  since  the  Judicature  Act  it  is 
competent,  where  one  of  two  joint  debtors  dies,  to 
sue  the  surviving  debtor  and  the  executors  of  the 
deceased,  (c^) 

(398.)  The  High  Court,  even  in  the  Chancery  Lien, 

^  ^  »  '  "^    equitable 

Division,  will  not  apply  equitable  rules  to   legal  aud  legai. 
estates,  so  as  to  work  recoupment  by  way  of  equit- 
able lien,  out  of  the  estate  of  a  trustee  guilty  of  a 

(a)  In  re  Day's  Estate,  Ir.  Rep.  10  Eq.  201,  L.  E.  Ct. 
(h)  Lake  v.   Gibson,   1  Eq.   Cases,  ab.  294,   3  Peere.  Wms.   158  ; 
1  White  &  Tudor,  168. 

(c)  Beresford  v.  Browning,  L.  K.  20  Eq.  564,  M.  R. 

(d)  See  Williams  v.  Andrews,  20  Sol.  Jour.  100. 


332  MISTAKE  IN   FACT. 

(ienerai    breach  of  trust,  or  a  tenant  for  life  eoncurrino-  in  it, 

Prevalence    .  .  •,•  f>ii  i/>ji 

of  Equity,  in  misappropriation  oi  tne  property  oi  the  cesqm  que 
trust  or  remainder-men,  where  the  estate  is  a  legal 
estate  acquired  by  direct  devise,  and  not  through 
the  action  of  the  Court. (a) 
Mistake  in  (399.)  The  rules  of  law  did  not  admit  parol 
agreements,  evidence  to  Vary  the  terms  of  an  agreement  in  writ- 
ing, even  by  way  of  defence,  to  an  action  on  the 
contract,  although  they  did  allow  of  parol  evidence 
in  aid  of  a  defence  to  show  that  there  was  no 
definitive  agreement  at  all,  ex.  gr.,  that  when  the 
defendant  signed  the  agreement  it  was  agreed 
collaterally  that  the  writing  should  be  no  agreement 
until  approved  of  by  a  third  person,(6)  or  that  an 
agreement  after  being  reduced  into  wTiting  had  been 
waived,  or  dissolved,  or  annulled,  by  a  fresh  agree- 
ment, (c)  But  in  no  case  could  a  plaintiff  bring  for- 
ward a  document  on  which  he  founded  his  right,  and 
be  allowed  to  say  that  the  instrument,  by  accident 
or  mistake,  did  not  express  the  real  agreement,  (c?) 

By  the  rules  of  Equity  when  a  written  instrument 
evidencing  a  contract  was  sought  to  be  enforced 
specifically,  it  was  competent  to  the  defendant  to 
show  by  parol  evidence  that  the  contract  was  en- 
tered into  by  mistake  or  upon  the  faith  of  a  state  of 
things  which  did  not  exist,(e)  as  plaintift  he  might 
seek  to  have  it  cancelled(/)  or  rectified,  and  after  it 

(a)  Foxy.  Buckley,  L.  R.  3  Chan.  D.  508,  25  W.   R.  170  A.  C. 
ButseeNewMostyni?.  West  Mostyn Coal  Company,  2-t  W.  R.401. 
(i)  See  Pym  v.  Campbell,  at  p.  370,  per  Erie,  C.  J. 

(c)  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  G5,  per  Lord  Denman,  C.  J. ;  Scott 
V.  Midland  Great  W^estern  Railway  Company,  3  Ir.  Com.  Law  Rep.  64, 
pcrMonahun,  C.  J. 

(d)  Druiff  V.  Parker,  L.  R.  5  Eq.  at  p.  137,  per  Wood,  V.  C. ;  Wake 
V.  Harrop,  6  Hurl.  &  Norm.  7G8. 

(f )  Emmerson's  case,  L.  R.,  1  Chan.,  433 ;  Coclirane  v.  Willis,  L.  R., 
1  Ch.  58. 

(f)  Cooper  V.  Phibbs,  L.  R.,  1  11.  L.  1G8;  Torrance  v.  Bolton, 
L.  R.,  SCh.  118. 


MISTAKE  IN   LAW.  333 

was  rectified,  and  not  before,  he  might  enforce  it  at    General 
law,  or  have  specific  performance  of  it. (a)  oj  Equity. 

A  remarkable  instance  of  the  exercise  of  this 
jurisdiction  to  rectify  an  instrument  in  order  to 
make  it  available  at  law  arose  before  Sir  William 
Page  Wood,  V,  C.,(6)  where  a  bill  of  exchange 
was  intended  to  be  indorsed  to  the  plaintiff  as  a 
renewal  of  a  former  bill  drawn  by  the  defen- 
dant, but  the  plaintiff's  name  was  inserted  by 
mistake  above  the  place  where  the  drawer's  name 
was  afterwards  inserted.  The  plaintiff  having  sued 
as  indorsee  at  law,  the  defendant,  the  real  drawer, 
relied  on  the  fact  of  the  plaintiffs  name  being 
appearing  on  the  bill  as  drawer,  to  which  the 
plaintiff  demurred ;  but  feeling  his  success  at  law  to 
be  doubtful,  filed  his  bill  in  Equity  to  rectify  the 
mistake.  In  a  similar  case,  it  is  presumed  that 
the  rules  of  Equity  would  prevail  as  to  the  admis- 
sion of  parol  evidence  to  correct  the  mistake. 

(400.)  Mistake  in  matter  of  law  was  not  a  ground  ^li^take  in 
in  a  Court  of  Equity  any  more  than  in  a  Court 
of  Law  for  relief  from  agreements  deliberately 
entered  into.  In  both  jurisdictions  the  maxim 
ignorantia  legis  haud  excusat  prevailed,  and  every- 
body who  enters  into  an  agreement  is  bound  to 
know  what  the  law  is  and  what  the  les^al  conse- 
quences  of  his  acts  are.(c)  Equity  introduced  the 
qualification  that  the  mistake  of  law  should  not  be 
brought  about  by  misrepresentation  or  misplaced 
confidence,  undue  influence  or  mental  incapacity 
overreached,  (c?)  Apart  from  these  special  circum- 
stances,  which  were    mostly   if  not  entirely  cog- 

(a)  See  WooUam  v.  Hearii,  2  White  &  Tudor,  403,  3rd  Ed. ;  Leaver 
V.  Fielder,  32  Beav.  1. 

(b)  Dniiff  V.  Lord  Parker,  J.  R.,  5  Eq.  131,  V.  C.  Wood. 

(c)  PuUen  V.  Ready,  2  Atk.,  591 ;  PoweU  v.  Smith,  L.  R.,  14  Eq. 
85,  M.  R. 

{d)  Storj',  §118. 


334 


PARTNEESHIP, 


General 
Prevalence 
of  Equity. 


Partner- 
ship 
actions. 


nisable  in  Equity,  ignorance  or  mistake  of  law, 
with  full  knowledge  of  the  facts,  furnished  no  ground 
to  rescind  agreements  or  to  set  aside  solemn  acts  of 
the  parties.  ((() 

The  maxim,  however,  applies  only  to  the  general 
or  ordinary  and  well-known  law  of  the  land,  and 
not  to  private  rights  such  as  ownership  of  land, (6) 
or  other  property,  which  is  matter  of  fact  as  well  as 
of  law.  Mistake  in  respect  of  this  might  be 
ground  for  relief  in  Equit3^,(c)  or  still  more  so,  where 
the  mistake  was  mutual,  and  a  man  took  a  lease  of  his 
own  property, (d)  or  where  it  arises  on  the  construc- 
tion of  the  meaning  of  an  obscurely  worded  docu- 
ment, (e) 

(401.)  In  matters  of  partnership  a  plaintiff  could 
not  at  law  maintain  an  action  against  a  firm  of 
which  he  himself  happened  to  be  a  partner.  This 
deprived  a  partner  of  all  remedy  at  Common  Law 
for  money  lent,  or  goods  supplied  to  or  work  done  by 
him  for  his  firm  while  a  member  of  it.  If  the  same 
individual  happened  to  be  a  member  of  two  firms, 
no  action  could  be  brought  by  either  firm  against 
the  other  in  re.spect  of  contracts  entered  into 
between  them.(/)  In  a  Court  of  Equity  no  such 
difiiculty  stood  in  the  way  of  justice. 

It  is  presumed  that  this  variance  is  at  an  end. 
Co-partners  may  be  sued  in  the  name  of  their  firm, 
and  the  action  cannot   be  defeated   by  any  mis- 


(rt)  Stor3-,§  137;  Stewart  v.  Stewart,  6  CI.  &  F.,  at  p.  OC").  per 
Lord  Cottenham  ;  Kelly  v.  Solari,  9  M.  &  W.,  at  p.  58,  per  Lord 
Abinger,  C.  B. 

(fc)  See  Leonard  v.  Leonard,  2  Ball  &  B.  at  p.  182;  and  see 
Thompson  v.  Eastwood,  L.  R.,  2  H.  L.,  at  p.  2.'34r. 

(c)  Broughton  v.  Ilutt,  3  De  Gex  &  Jo.,  501. 

{d)  Cooper  v.  Phibbs,  L.  R.,  2  H.  L.  at  p.  170,  overruling  S.  S., 
17  Ir.  Chan.  Rep.,  73. 

(e)  Earl  Beauchamp  v.  Winn,  L.  R.,  G  II.  L.  223. 

(y )  See  Addison  on  Contracts,  p.  988,  7th  Edition. 


RETAINER — SEPARATE  ESTATE.  835 

joinder  of  a  common  partner,  even  if  it  be  now  a    oenemi 

...      -  Prevalence 

misjoinder.  oj  Equity. 

(402.)  Part  performance  on  an  agreement  was  in  parTpTr- 
equity  considered  to  take  the  case  out  of  the  Statute  ^°™^"'^^- 
of  Frauds ;  and  it  appears  the  rule  was  the  same  at 
law,  on  the  ground  that  the   contract  was  then  no 
longer  executory,  but  executed,  (a) 

(403.)  As  regards  the  right  of  an  executor  or  ad-  Rptainer 
ministrator  to  retainer  of  the  assets  to  satisfy  his  preference, 
own  debt,  equity  followed  the  law  as  to  legal  debts 
and  legal  assets,(6)  and  extended  it  further  to  equit- 
able debts,(c)  and  where  an  executor  was  a  trustee 
for  others,  it  compelled  the  executor  to  take  satisfac- 
tion by  way  of  retainer  out  of  legal  assets,  when 
otherwise  he  would  have  trenched  upon  equitable 
assets  to  the  prejudice  of  his  cestui  que  trusts. (cZ) 
So,  as  regards  an  executor's  right  of  preference  of 
one  creditor  over  another  of  equal  degree,  equity  fol- 
lowed the  law,  and  upheld  an  equitable  assignment 
b}^  an  executor  of  the  debts  of  his  testator  to  secure 
the  demand  of  a  particular  creditor,  (e) 

(404.)  The  variance  which  existed  between  the  rules  separate 
of  the  Common  Law  by  which  a  married  woman  could 
hold  no  property  apart  from  her  husband,  and  therules 
of  equity  by  which  she  was  deemed  capable  of 
possessing  property  to  her  separate  use,  indepen- 
dent of  her  husband,  with  all  its  privileges  and  in- 
cidents, including  the  jus  disponendi,  controlled 
only  by  conditions  expressly  restraining  alienation 
by  way  of  anticipation  of  reversionary  property  in 
personalty(/)  has  been  already  terminated  to  some 

(fl)  Knowlman  v.  Bluett,  L.  E.  9  Exch.  307. 

Qj)  Hanley  v.  M'Dermott,  Ir.  Rep.,  Eq.,  35,  V.  C. 

(c)  In  re  Morris'  Estate,  L.  R.,  10  Chan.,  p.  72,  Sir  Geo  Mellish,  L.  J. 

{d)  Sanders  v.  Heathfiekl,  L.  R.,  19  Eq.  21,  V.  L.  M. 

(e)  Earl  Vane  v.  Rigden,  L.  R.,  5  Chan.  6G9. 

(/)  Tullett  V.  Armstrong,  4  M.  &  C. ;  Purden  v.  Jackson,  1  Russ.  1. 


TAXATION  OF   COSTS. 


General 
Prtninlence 
of  Equity. 


Taxation 
of  costs. 


extent  by  statute.  The  Act  33  k  34.  Vic,  c.  93, 
the  Married  Women's  Property  Act,  1870,  enables 
a  married  woman  to  acquire  a  legal  title  to  certain 
classes  of  property  and  to  protect  them  by  proceed- 
ings in  a  court  of  law  independently  of  her  husband. 
Thus  her  wages  and  earnings  in  any  em]3loyment  or 
trade  carried  on  separately  from  her  husband,  and 
any  money  acquired  by  her  labours  or  artistic  or 
scientific  skill,  have  become  her  separate  property 
as  if  settled  to  her  separate  use,  and  deposits  in 
savings  banks  in  her  own  name,  or  moneys  in  the 
public  stocks  or  funds  over  £20  standing  in  her 
name,  or  in  joint-stock  companies,  or  in  policies  of 
insurance  effected  by  herself,  and  for  all  these,  so  far 
as  they  lie  in  action,  she  may  maintain  an  action  or 
have  the  same  remedies,  civil  or  criminal,  against  all 
persons  as  if  they  belonged  to  her  as  an  unmarried 
woman. (a)  Thus  she  may  sue  for  an  injunction  in 
the  Chancery  Division  to  prevent  a  sheriff  or  creditors 
of  her  husband  selling  her  separate  property  pur- 
chased out  of  her  earnings. (6)  The  savings  out  of 
her  earnings  are  distributed  after  her  death  as  equi- 
table assets,  (c) 

(405.)  As  a  small  item  of  variance  between  the  rules 
of  law  and  equity  may  be  noticed  that  Courts  of 
Equity  allowed  the  costs  of  a  witness  qualifying 
himself  for  examination,  whereas  Courts  of  Law  di^ 
not.  Since  the  Judicature  Act,  the  Common  Law 
Divisions  in  England  all  follow  the  rule  of  equity. ((/) 


(a)  See  Summers  v.  City  Bank,  L.  R.  9  C.  P.  580.  Ranisden  v. 
Brearley,  L.  II.,  10  Q.  B.  147.  But  as  to  her  right  of  disposal  of  her 
property  as  if  unmarried,  see  Howard  v.  Bank  of  England,  W.  N., 
1875,  211,  M.R. 

(i)  See  Marston  v.  Smith,  W.  N.,  1877,  1G9  V.  C.  H. 

(f)  Thompson  v.  Bennett,  L.  R.  G  Ch.  D.  739. 

((/)  Mackley  v.  Chillingworlh,  L.  R.,  2  C.  P.  D.  273,  25  W.  P.  G50. 


PART  VI. 


THE   NEW  PROCEDURE. 


Chapter  XJ JIL— The  New  rROCEDURE. 

,,  XLIY. — Pending  Causes. 

„  XLV. — Actions. 

„  XLVI. — Writ  of  Summons. 

„  XLVII. — Service  of  Writ. 

„  XLVIIl. — Appearance. 

„  XLIX. — Summary  Orders  before  Pleading. 

})  L- — Parties  to  Actions. 

»  LI. — Pleadings. 

„  LII. — Xew  Rules  of  Pleading. 

„  LIIL— Incidental  Matters  between  Pleading  and 
Trial. 

5?  LIY. — Trial  and  Evidence. 

j>  LV. — Judgment  and  Execution. 

„  LVI. — Costs. 

„  LVII. — Appeals. 

„  LVIII. — Final  Appeal  to  House  of  Lords. 

„  LIX. — Interpleader. 

„  LX. — Remitter  of  Actions  to  Civil  Bill  Court. 


[     338     ] 

CHAPTER  XLTII. 

The  New  Procedure. 

400.  The  New  Procedure,  338. 

407.  Pre-existiug  Procedure,  338. 

408.  Scope  of  the  Rules  as  to  procedure,  339. 

409.  Exceptions  from,  340. 

410.  Proceedings  other  than  Actions,  340. 

411.  Act  and  Rules  how  far  retrospective,  341. 


The  new  (406.)  The  proceclure  and  practice  which,  with 

procedure,  ^g^.^^^'j^  exceptions  mentioned  hereafter,  are  hence- 
forth to  govern  the  proceedings  in  the  High  Court 
of  Justice  and  in  the  Court  of  Appeal,  are  to 
be  found  partly  in  the  Judicature  Act  in  the 
Rules  of  Court  contained  in  the  first  schedule  to 
the  Act,  and  in  the  Orders  made  subsequently 
thereto,  and  partly  in  the  pre-existing  practice  of 
the  Courts  whose  jurisdiction  has  been  transferred 
to  the  High  Court,  and  which  remains  in  force 
where  no  other  provision  is  made  by  the  Act  or 
Rules.(«) 
Pre-  (407.)  Thus  it  is  enacted  that  "  the  jurisdiction 

priSdure.  transferred  to  the  High  Court  of  Justice  and  the 
p'reTerved.  Court  of  Appeal  respectively,  shall  be  exercised  (so 
far  as  regards  procedure  and  practice)  in  the  manner 
provided  by  the  Act  and  the  Rules  and  Orders  of 
Court  contained  in,  or  made  pursuant  to  the  Act, 
with  reference  thereto."(6) 

But  where,  and  so  far  as,  the  Judicature  Act 
or  the  Rules  of  Court  contained  in  it  or  made 
under  it,  contains  no  special  provision  the  jurisdic- 
tion is  to  be  exercised  as  nearly  as  may  be  in  the 
same  manner  as  the  same  might  have  been  exercised 
l>y  the  respective  Courts  from  which  such  jurisdic- 
tion shall  have  been  transferred,  or  by  any  of  the 

(«)  See  Creen  v.  Wright,  L.  K.,  2  C.  P.  D.  254  A,  C. 
(6)  J.  A.,  1677,  s.  2G;  J.  A.,  1873,  s.  23. 


SCOPE   OF  THE  EULES,  33l) 

Coiirts,(c)  and  save  as  is  otherwise  provided  by  The  xnu 
the  Act  or  Kules,  "  all  forms  and  methods  of  pro-  — 
cedure  which  at  the  commencement  of  the  Act 
were  in  force  in  any  of  the  Courts  whose  jurisdic- 
tion is  transferred  to  the  High  Court  and  to  the 
Court  of  Appeal  respectively,  under  or  by  virtue  of 
any  law,  custom,  general  orders,  or  rules  whatso- 
ever, and  not  inconsistent  with  the  Act  or  with  the 
rules  of  Court  may  continue  to  be  used  and 
practised  in  the  High  Court  of  Justice  and  the 
Court  of  Appeal  respectively,  in  such  and  like  cases, 
and  for  such  and  the  like  purposes  as  those  to 
which  they  wovild  have  been  applicable  in  the 
respective  Courts  of  which  the  jurisdiction  is  so 
transferred  if  the  Act  had  not  been  passed,"((:^) 

Thus  as  regards  a  party,  being  an  infant,  con- 
senting by  his  guardian  to  have  the  evidence  taken 
by  affidavit,  the  former  practice  is  to  be  considered 
as  though  it  were  embodied  in  the  new  order  en- 
abling infants  defendants  to  defend  by  guardian,(e) 
there  baing  nothing  in  the  statute  or  in  the  rules 
inconsistent  therewith. 

In  fact,  neither  the  Act  nor  the  Rules  profess  to 
furnish  anything  like  a  complete  code  of  procedure, 
they  form  in  reality  but  a  general  outline  which 
may  be  filled  hereafter,  but  must  at  present  be 
filled  in  by  the  pre-existing  and  unrepealed  rules 
as  to  procedure  and  practice. 

(408.)  The  scope  of  the  procedure  as  governed  by  scope  of 
the  rules  in  the  statute  and  in  the  New  Orders 
extends  to  all  proceedings  in  actions  whether  at 
Common  Law  or  Equity,  and  formerly  commenced 
by  summons  and  plaint  or  by  bill  or  information  in 

(c)  J.  A.,  1877,  s.  26. 

(d)  J.  A.,  1877,  s.  67;  J.  A.,  1875,  s.  21. 

(e)  Fryer  v.  Wiseman,  24  W.  K.  205,  20  Sol.  Jour.,  211;  Knatch- 
bull  V.  Fowler,  L.  E.,  1  Chan.  D.  604, 24  W.  K.,  62i),  M.  R. 

q2 


;34.0  EXCEPTIONS   FROM, 


ThoKm'  Chancery.  In  some  respects  they  apply  to  pro- 
procedure.  ggg^jjjjo-s  by  petition  or  summons  in  the  Chancery 
Division,  as  for  example  the  rules  as  to  plead- 
ino-s  which  are  defined  to  include  petitions  and 
summonsesf/)  and  the  rules  as  to  discovery  of 
documents  have  been  held  to  apply  to  proceedings 
under  the  Companies'  Act,  1862.(^) 
Exceptions  (409.)  Among  the  exceptions  from  the  general 
application  of  the  New  Procedure,  it  is  provided 
"that  the  practice  and  procedure  in  all  criminal 
causes  and  matters  whatsoever  in  the  High  Court 
of  Justice  and  in  the  Court  of  Appeal  respectively, 
including  the  practice  and  procedure  with  respect 
to  Crown  cases  reserved,  shall  be  the  same  as  the 
practice  and  procedure  in  similar  causes  and  matters 
before  the  commencement  of  the  Act." 

The  Schedule  Rules  and  New  Orders,  except 
Order  L.,  Rules  1  &  2,  and  Order  LVIII.,  have  no 
application  to  business  within  the  exclusive  cogni- 
zance of  the  Court  of  Probate  or  the  Court  for  Matri- 
monial Causes — nor  to  proceedings  before  the  Land 
Judges  heretofore  within  the  exclusive  jurisdiction 
of  the  Landed  Estates  Court.  Neither  do  they 
apply  to  criminal  proceedings  or  proceedings  on  the 
Crown  side  of  the  Queen's  Bench  Division,  or  on 
the  Revenue  side  of  the  Exchequer  Division.(/i) 
Proceed-  (410.)  All  other  proceedings  (than  actions)  and 

ti'.an""'"^  applications  to  the  High  Court  may,  subject  to  any 
rules  to  the  contrary,  be  taken  and  made  in  the 
same  manner  as  they  would  have  been  taken  and 
made  in  any  Coui-t  in  which  any  proceeding  or 
application  of  the  like  kind  could  have  been  taken 
or  made  if  the  Judicature  Act  had  not  been 
passed,  (i) 

(/•)  J.  A.,  1S77,  s.  ;5. 

(<l~)  In  re  Xatioiial  Funds  Assurance  Association,  W.  K.  77-i,  A.  C. 

(/()  Sch.  K.  38,  Ord.  Ixiv.  injra.  (J)  Schedule  K.  1. 


uuuons. 


JUDICATURE  ACT,   HOW   FAR   RETROSPECTIVE,  841 

(411.)  As  regards  the  question  how  far  the  pro-    The  New 
visions  of  the  Judicature  Act  have  a  retrospective      — 
operation,  it  is  to  be  observed  that  while  as  regards  Act  j^o  "^ 
alterations  in  rights  and  liabilities  and  matters  of  ^^^'/Ju-T 
principle  new  enactments  will  be  construed  as  in- 
tended  to   govern  future    rights  and    not   rights 
already  acquired,  unless  clear  and  express   words 
are  used,  manifestly  sufficient  to  make  the  enact- 
ment retrospective ;   yet,   so   far  as  an  enactment 
deals  with  questions  of  procedure  only  or  the  means 
of  establishing  rights,   ordinary  words    are    suffi- 
cient to  make  them  retrospective,(a)  for  suitors  have 
no  vested  interest  in  defective  procedure. (6) 

Acting  on  this  distinction,  the  Court  has  sanc- 
tioned the  application  of  the  new  procedure  to 
enable  a  defendant  to  have  the  benefit  of  a  counter- 
claim or  set-off,  so  that  he  might  have  judgment  for 
the  balance  if  found  to  be  in  excess,  considering 
that  this  effected  no  alteration  of  legal  rights  but 
an  alteration  of  procedure  merely,  and  giving  a 
defendant  a  better  remedy  for  enforcing  the  same 
right,(c)  and  some  of  the  judges  have  considered 
that  sec.  22  of  the  Judicature  Act,  1873,  enabled 
them  to  permit  judgment  to  be  marked  in  a  summary 
way,  on  a  wi'it  issued  before  the  Act  came  into 
operation^  it  being  indorsed  in  manner  similar  to 
that  required  by  the  new  procedure. (tZ) 

The   procedure   introduced   by   the   new   Rules  New  Rules-, 
in  England  has   been   held,   in   certain   cases,    to  spective. 
apply  to    past    transactions,    e.g.,    the   additional 
rules  30,  31  and  32  as  to  costs ;  in  a  case  where  a 

(a)  In  re  Joseph  Suche  &  Co.,  24  W.  R.  134. 
(h)  Republic  of  Rica  v.  Erlanger,  L.  R.,  3  Ch.  D.  62,  24  W.  R. 
955. 

(c)  Anon.  W.  N.,  1875,  229 ;  20  Sol.  Jour.  201,  Quain,  J. 

(d)  Anon.  20  Sol.  Jour.  162,  Huddlestone,  B. ;  Anon.  20  Sol.  Jour. 
219.  Lindley,  J. ;  sed contra;  Anon.  20  Sol.  Jour.  101,  Quain,  J. 


342  NEW   RULES,   WHEN   RETROSPECTIVE. 

The  New   taxation  had  been  already  had  and  an  appeal  sought 
rrocedure.  ^^  ^^  taken  without  the  preliminary  objection  be- 
ing made  before  the  taxing  officer,  as  required  by 
the  rules,  (c) 

Thus  where  a  pending  cause  was  ordered  to  be 
continued  according  to  the  old  procedure,  the  new 
Rules  were  applied  as  regards  amendment  of  plead- 
in  o-s  at  any  stage  of  the  proceedings  where  desir- 
able. (fZ)  In  one  case,(e)  after  issued  joined  before 
the  Act,  the  bill  was  amended  at  the  hearing  under 
the  new  Rules  by  alleging  a  specific  act  of  wilful 
default  against  a  trustee.(/) 

In  a  pending  cause  in  the  Chancery  Division,  in 
which  an  injunction  had  been  granted  against  pro- 
ceeding in  an  action  at  law,  the  injunction  could  be 
continued  no  longer,  but  the  suit  might  be  trans- 
ferred to  the  Court  and  Division  in  which  the 
action  was  pending. (r/) 

So,  where  a  nde  nisi  for  a  new  trial  on  the  gi'ound 
of  admission  of  improper  evidence  had  been  gi-anted 
before  the  Order  89  (English)  came  into  operation, 
the  Court  discharged  it  afterwards  on  the  ground 
that  although  the  evidence  was  inadmissible  the 
verdict  of  the  jury  could  not  have  been  in  any  way 
influenced  by  it.{h) 


(c)  Anon.  W.  K.  1875,  p.  219,  Lush,  J. 

id)  Budding  y.  Murdock,  L.  R.,  1  Ch.  D.  42  ;  24  W.  R.  23. 
(e)  King  V.  Corke,  L.  R.  1  Ch.  D.  57  ;  24  W.  R.  23,  V.  C.  B. 
(/)  See  also  Roe  v.  Davis,  L.  R.  2  Ch.  D.  729 ;    24  W.  R.  COO, 
v.  C.   B. 

(y)  Edwards  v.  Noble,  24  W.  R.,390;  W.  R.,  187G,  p.  81,  V.  C.  B. 
{h)  Eurp  V.  Faulkner,  W.  N.,  187G,  p.  181;  24  W.  K.  774,  A.  C. 


[     343     ] 

CHAPTER  XLIY. 

Pending  Causes. 
Procedure. 

412.  Pending  business  transferred,  343. 

413.  Causes  fully  heard,  judgment  not  perfected,  343. 

41 4.  Judgment  perfected,  but  not  executed,  344. 

415.  Error  and  Appeals,  344. 

416.  Other  proceedings  in  High  Court,  344. 

417.  Jurisdiction  to  deal  ^\•ith  old  causes,  345. 

418.  Form  and  manner  of  procedure,  as  to,  345, 

419.  ISlode  of  continuance  in  law  division,  345. 

420.  Special  orders  for,  34 G. 

421.  To  let  in  a  counter-claim,  347. 

422.  To  introduce  new  parties,  348. 

423.  For  other  purposes,  348. 

424.  To  change  nature  of  action,  349. 

425.  Appeals  when  under  new  procedure,  340. 

426.  Special  orders  in  Chancery  Division,  349. 

427.  Before  notice  of  motion  for  decree  or  replication,  350. 

428.  Setting  down  causes  for  hearing  and  evidence,  350. 

429.  After  notice  of  motion  for  decree  or  replication  served,  351. 

430.  Other  matters  than  causes,  351. 

431.  Special  orders,  352. 


(412.)  Since  the  former  Courts  of  Justice  have  Pending 
cased  to  exist  and  their  jurisdiction  has  been  trans-  oursuUs'" 
ferred  to  the  High  Court  of  Justice  and  the  Court  '^^^^^.''^l 
of  Appeal,  it  became  necessary  to  make  provision 
for  the  transaction  and  disposal  of  pending  business 
in  suits  and  actions  commenced  before  the  Judica- 
ture Act  came  into  operation,  and  this  is  done  by 
J.  A.  1877,  sec.  25,  which  has  in  effect  transferred 
all  business  pending  in  the  old  tribunals  to  the 
new. 

(413.)  In  the  fii'st  place,  as  regards  causes,  matters  Causes  fur.y 
and  proceedings  which  have  been  fully  heard,  but  judgment 
in  which  judgment  has  not  been  actually  given,  or  perfected. 
if  given  (or  pronounced),  it  has  not  been  signed, 
drawn  up,  passed,  entered,  or  otherwise  perfected 
at  the  commencement  of  the  Act,  such  judgmeno, 
decree,  rule,  or  order  may  be  given,  made,  signed, 
drawn  up,  passed,  entered,  or  perfected  after   the 
commencement  of  the  Act  in  the  name  of  the  same 


r.44 


JUDGMENTS  PERFECTED   BUT   NOT  EXECUTED. 


Pen  fling 

Causes. 


Judgments 
perfected, 
but  not 
executed. 


Error  and 
iippi  als  in 
Appeal 
Court. 


Other  pro- 
t  ('(linj,'!!  in 
High  Court. 


(defunct)  court,  and  by  the  same  judges  and  officers 
and  generally  in  the  same  manner  in  all  respects 
as  if  the  Judicature  Act  had  not  passed.  And  the 
judgment,  decree,  rule,  or  order  will  take  effect  to 
all  intents  and  purposes  as  if  it  had  been  perfected 
before  the  commencement  of  the  Act.{a) 

(414.)  Where  the  judgment,  decree,  or  order  is 
duly  perfected  before  the  commencement  of  the 
Act,  it  may  be  executed  and  enforced,  and,  if  neces- 
sary, amended  or  discharged,  by  the  High  Court  or 
the  Court  of  Appeal  in  the  same  manner  as  if  it 
had  been  a  judgment,  decree,  or  order  of  its  own. 
(b)  Thus,  where  an  order  for  taxation  of  a 
solicitor's  bill  had  been  made,  and  the  balance 
found  due  by  him  was  ordered  to  be  paid  within 
twenty-one  days  from  the  date  of  the  certificate  of 
taxation,  and  the  solicitor  failed  to  pay  the  balance, 
it  was  held  that  an  attachment  to  enforce  this  order 
should  issue  under  the  new  ])rocedure,  and  tliere- 
fore  notice  should  be  given  of  the  application. (c) 

(415.)  Proceedings  in  error,  or  by  way  of  appeal, 
and  proceedings  before  the  Court  of  Appeal  in 
Chancery,  or  in  the  Court  for  land  cases  reserved 
at  Dublin,  in  causes  or  matters,  whether  civil  or 
criminal,  and  which  have  not  been  fully  heard 
before  the  transfer,  are  to  be  continued  and  con- 
cluded in  and  before  the  new  Court  of  Appeal. ((?) 

Thus,  in  an  appeal  from  an  order  made  before 
the  Act,  the  Appeal  Court  might  direct  security  t(.» 
be  given  for  costs  under  special  circumstances, 
under  Ord.  58,  K  11,  i7ifm  ;  Ord.  58,  R.  15,  K{e) 

(416.)  All  other  proceedings  (than  by  way   of 

(n)  J.  A.,  1877,  s.  25,  §2 ;  J.  A.,  1873,  s.  22. 
(6)  J.  A.,  1877,  s.  25,  §  3  ;  J.  A.,  1873,  s.  22. 

(c)  Li  re  a  Solicitor,  W.  N.,  1875,  243;  M.  R. 

(d)  J.  A.,  1877,  s.  25,  §  4 ;  J.  A.,  1873. 

(e)  WUson  v.  Smith,  L.  R.  2  Oh.  D.  67;  24  W.  R.,  421. 


JURISDICTION   TO   DEAL   WITH   OLD   CAUSES.  345 

error  or  appeal),  and  not  fully  heard  at  the  time  of  ^^^u'^o 
transfer,  are  to  be  continued  and  concluded  in  and  — ' 
before  the  High  Court  of  Justice.((t) 

(417.)  For  the  disposal  of  pending  business,  the  jurisdie- 
High  Court  of  Justice  and  the  Court  of  Appeal  are  wiTi/our"* 
invested  with  the  same  jurisdiction  in  all  causes,  trrnsferred. 
matters,  and  proceedings  thus  transferred  to  them, 
as  if  the  same  had  been  commenced  in  the  High 
Court  of  Justice  or  the  Appeal  Court  itself,  and  had 
been  continued  in  it  down  to  the  point  at  which 
the  li-ausfer  has  taken  place. (&) 

('418.)  As  to  the  form  and  manner  of  procedure  Form  and 

I  /■  1      X         XT-      nianuer  of 

in  old  causes  and  matters  transierred  to  the  procedure 
High  Court  and  the  Appeal  Court,  they  may  be  causes. 
continued  and  concluded  either  in  the  same  or  the 
like  manner  as  they  would  have  been  continued  or 
concluded  in  the  Courts  from  which  they  have  been 
transferred,  or  according  to  the  ordinary  course  of 
the  new  Courts,  so  far  as  the  same  may  be  applicable 
thereto,  as  the  latter  Courts  may  think  tit  to  direct.(c) 

(419.)  The  statute  contemplates  that  the  several  Modenf 
divisions  of  the  new  Court  shall  direct  which  of  the  auce. 
two  alternative  modes  of  procedure — the  old  or  the 
new — shall  govern  pending  causes  transferred  to 
the  High  Court.      In  the  English  Common  Law 
Divisions,  in  order  to  save  expense  and  inconveni- 
ence of  separate  applications,  and  subject  to  any 
special  order  made   to   the   contrary,   the  judges   . 
directed  that  where  the  actions  had  been  commenced, 
and  the  writ  served,  but  no  declaration  delivered, 
the  action  should  be  continued   according  to  the 
ordinary  course  of  the  High  Court  of  Justice,  as  if 
it  had  been  commenced  in  that  Court. (r?) 

(a)  J.  A.,  1S77,  s.  25,  §  4;  J  A.,  lS7a,  s.  22. 
(6)  J.  A.,  1877,  s.  25,  §  5 ;  J.  A.,  1873,  s.  22. 
(c)  J.  A.  1877,  s.  25,  §  6. 

{d)  Ord.  2  Nov.,  1875,  and  see  a  ease  illustrating  tliis  where  priiitiu^ 
was  required;  Anon.  W.  N.,  1875,  198,  20  Sol.  Jour.  31,  Lush,  J. 

Q  3 


346 


SPECIAL   ORDERS   FOR  NEW   PROCEDURE. 


Pending 
Causes, 


Special 
orders  for 
new  pro- 
cedure. 


In  all  other  cases  where  declaration  had  been 
delivered,  the  action  was  to  be  continued  to  the 
close  of  the  pleadings  according  to  the  old  practice 
of  the  Court  in  which  it  was  brought,  and  after- 
wards, i.e.,  after  issue  joined,  then  according  to  the 
provisions  of  the  Judicature  Act. (a) 

Under  the  English  rules,  without  a  special  order 
it  was  not  competent  for  either  party  to  avail  him- 
self of  the  benefit  of  the  new  procedure  where  the 
action  at  the  time  of  transfer  had  reached  the  stage 
of  the  delivery  of  the  declaration,  equivalent  as 
nearly  as  possible  to  the  service  of  our  Summons 
and  Plaint. 

Thus,  a  defendant  could  not  deliver  an  equitable 
defence  without  leave,(6)  nor  plaintiff  deliver  in- 
terroo-atories  without  an  order  as  heretofore. (c) 

(420.)  The  judges  in  England  at  the  first  starting 
of  the  Judicature  Act  used  to  exercise  their  power 
very  liberally  to  order  proceedings  to  be  continued 
under  the  new  system,  in  order  to  bring  into  use 
as  early  as  possible  the  benefits  of  the  new  pro- 
cedure. Thus,  a  declaration  delivered  has  been 
ordered  to  stand  as  a  statement  of  claim,  the  title 
being  altered  to  the  High  Court  of  Justice;  and  it 
has  been  customary  to  combine  in  one  order  a 
direction  that  the  action  be  continued  according  to 
the  course  of  the  High  Court  of  Justice,  with  an 
order  to  allow  interrogatories  to  be  exhibited,((^) 
;-nd  where  an  action  had  been  commenced  under 
the  Bills  of  Exchange  Act,  defendant  got  leave  to 
appear  and  continue  under  the  new  Procedure.(e) 
But  where  the  defendant  was  served  abroad,  and 


(«)  Eng.  Ord.,  2  Nov.,  1875. 

(J)  Anon.  W.  N.,  1876,  52. 

(<•)  Anon.  20  Sol.  Jour.,  32  and  82,  Lush,  J. 

(f/;  liamsdeii  i'.  lircarlev,  20  Sol.  Jour.  30,  Lusli,  J. 

CO  ^- orris  V.  Beazley,  L.  U.,  2  C.  P.  D.  80;  25  W.  R.  320. 


TO   RAISE  COUNTERCLAIM.  347 

was  living  there,  and  the  declaration  was  not  de-     Pending 
livered  until  after  the  Judicature  Act  came  into       "J!l^' 
force,  the  Court  refused  to  make  an  order  ex  parte 
for  liberty  to  mark  judgment  under  the  new  pro- 
cedure as  for  default  of  appearance. (a) 

(421.)  So  where  a  defendant  desired  to  plead  a  To  raise 
counter-claim  or  set-off  to  the  declaration  which  had  claim. 
been  delivered,  and  there  appeared  to  be  a  bona  fide 
ground  for  a  cross  action,  it  had  been  almost  as,  of 
course,  to  direct  the  proceedings  to  be  continued 
under  the  new  procedure  in  order  to  enable  two  ac- 
tions to  be  tried  simultaneously,  or  practically  to  be 
converted  into  one.(aa)  So,  to  enable  defendant  to 
have  the  benefit  of  a  set-off  under  the  new  system, 
and  recover  the  balance  should  it  be  in  excess  of  the 
plaintiff's  claim.(6)  This  has  been  allowed  in  a 
petition  of  right  to  enable  the  Crown  to  set  up  a 
counter-claim, (c)  and,  at  the  instance  of  one  of  seve- 
ral defendants,  to  enable  him  to  claim  a  set-off 
against  plaintiff  and  contribution  from  the  defen- 
dants.(<:^)  But,  on  these  occasions  the  Court  usually 
required  from  the  defendant  an  affidavit  showing  a 
good  cause  of  action  on  his  part.fe) 

Where  there  seemed  no  substance  in  the  counter- 
claim or  set-off,  the  Court  left  the  defendant  to  his 
remedy  under  the  old  law.(/) 

The  opportunity  to  plead  a  counter-claim  under 
such  circumstances  was  generally  afforded  on  terms, 

(a)  Fowler  v.  Zewry,  W.  N.,  1875,  232,  Quain,  J. 

(aa)  Norton  Cannock,  Coal  Co.  t;.Merriinan,W.K,  1875,219,  Lush,  J. 

(6)  Anon.  W.  N.,  1875,  230,  Quain,  J. 

(c)  Thomas  v.  The  Queen,  W.  N.,  1875,  218,  20  Sol.  Jour.  79, 
Lush,  J. 

((f)  Harrison  v.  Markins,  W.  N.,  1875,  200,  20  Sol.  Jour.  161, 
Huddlestone,  B. 

(e)  Anon.  W.  N.,  1875,  21,  Lush,  J. ;  Lowther  v.  Bellairs,  W.  N., 
1875,  220,  Lush,  J. 

(/)  Tennant  v.  Walton,  W.  N.,  1875,  219;  20  Sol.  Jour.  79, 
Lush,  J. 


348 


TO   INTRODUCE  NEW   PARTIES. 


C"uses. 


To  intro- 
duce IK'W 
parties. 


Other 
purposes. 


such  as  defendant  bringing  into  covirt  the  amount 
claimed  by  the  plaintiff,  and  in  most  cases  giving 
plaintiff  time  to  elect  whether  to  go  on  with  his  ac- 
tion or  abandon  it  as  on  a  defence  arising  after 
action  brought,  getting  in  the  latter  case  his  costs 
up  to  the  date  of  order,(a)  more  especially  where 
the  counter-claim  was  unconnected  with  the  original 
claim.(6)  Where  there  was  much  delay,  ex.  gr.,  ex- 
ceeding a  month,  after  issue  joined  liberty  to  file 
a  counter-claim  has  been  refused  to  a  defendant,  (c) 

(422.)  Another  ground  of  seeking  the  application 
of  the  new  procedure  has  been  to  enable  the  defen- 
dant to  have  contribution  (or  rather  to  lay  grounds 
for  having  it)  (d)  against  a  co-defendant  or  to  bring 
the  real  plaintiff  before  the  court  with  a  view  of 
getting  discovery  from  him  which  the  ostensible 
plaintiff  is  unable  to  give.(e) 

After  an  action  coming  on  for  trial  and  adjourn- 
ment the  court  thought  it  too  late  at  that  stage  to 
allow  a  third  person  to  be  joined  as  a  defendant  who 
could  not  have  been  made  so  before  the  Judicature  Act, 
viz. :  theexecutorof  a  deceased  person  jointly  liable. (/) 

(42.S.)  The  new  procedure  has  been  rendered  ap- 
plicable to  pending  actions  for  various  other  pur- 
poses, e.g.,  to  enable  a  defendant  to  have  a  refer- 
ence under  the  English  Judicature  Act,  1873,  sec. 
o7,  Ord.  S6.{g) 

(a)  Anon.  W.  N.,  1875,  229  ;  20  Sol.  Jour.  201  ;  Quain,  J. ;  Trevena 
V.  Watts,  W.  N.  1875,  250  ;  20  Sol.  Jour.  140,  Quain,  J. 

(b)  Capellaus  v.  Brown,  W.  N.,  1875,  231;  20  Sol.  Jour.  98, 
Quain,  J.  ;  see  Fowler  v.  Lee,  W.  N.,  1876,  86. 

(c)  Ware  v.  Gwynne,  W.  N.  1875,  240.     (d)  See  ante  (25.3). 

(«■)  Clarkson  v.  British  and  Foreign  IMarine  Insurance  Company, 
AV.  N.,  1876,9;  20  Sol.  Jour.  177,  Quain,  J. 

(  /•)  Williams  v.  Andrews,  W.  N.,  1875,  237  ;  20  Sol.  Jour.  100, 
Quain,  J. 

(.</)  See  Anon.  20  Sol.  Jour.  80,  Lush,  J.  See  Cruikshank  v.  The 
Floating  Swimming  Baths  Company,  W.  N.,  1876,  154 ;  20  Sol. 
Jour.  IL'I,  C.  P.  i). 


TO   CHANGE  NATURE   OF  ACTION,  3+9 

(424.)  But  where  it  was  sought  to  chan^je  the  ^  Pending 

•  \  n     ^  .  n  l-  1  CaUStS. 

entu'e  character  of  the  action  irom  an  action  at  law  — 
to  a  suit  in  equity  it  was  refused,  ex.  gr.,  an  action  nature  of 
against  a  female  for  goods  sold  and  delivered,  pleas  '^'="°°- 
of  coverture,  never  indebted,  replication,  the  defen- 
dant in  her  proper  person  had  undertaken  to  pay, 
and  thereby  charged  her  separate  estate  and  that 
she  was  living  apart  from  her  husband,  and  there- 
fore her  separate  estate  was  liable.  This  replication 
had  been  set  aside  on  the  grround  that  it  did  not 
allege  that  defendant  had  any  separate  estate  and 
was  therefore  embarrassing.  The  plaintiff  having 
amended  his  replication  by  stating  that  the  defen- 
dant was  possessed  of  separate  estate,  asked  leave  to 
proceed  under  the  Judicature  Act  in  order  to  avail  him- 
self of  this  replication  which  might  be  a  good  answer 
in  equity  to  a  plea  of  coverture,  and  thus  to  convert 
the  suit  from  an  action  against  her  personally  to  one 
for  relief  against  her  separate  estate.  The  court  re- 
fused to  allow  this  unless  plaintiff  paid  all  costs 
from  the  writ  downwards  converting  the  declaration 
into  a  statement  of  claim. (a) 

(425.)  Where  a   party  wishes  to  appeal  from  a  Appeal 
decree  or  judgment  and  no  petition  of  appeal  has  i^ew^no-'^'^ 
been    presented  when  the  Judicature  Act   comes  <=*-''i"'''^- 
into  operation  the  case  is  not  within   the  mean- 
ing  of    section    22  of   Judicature   Act,    1873,    as 
amatter  or  proceeding  pending  and  the  appeal  should 
be  brought  according  to  the  new  procedure  without 
special  directions. (6) 

(426.)  In  the  Chancery  Division  in  England  theMas-  chancery 
ter  of  the  Rolls  and  the  Vice -Chancellors  gave  general  spJei^/" 
directions  as  to  the  course  of  procedure  to  be  adopted,  "'■'^*-""  '"• 
subject,  however,  to  any  special  order  which  might 

(a)  Hancock  v.   De  Niceville,  W.   N.    1875,  204  &  230 ;  20  Sol. 
Jour.  98,  Lush,  J. 

ifi)  Barthaiu  v.  Yates,  L.  K.  1  Ch.  D.  13;  2i  AV.  R.  19,  A.C. 


350  CAUSES   BEFORE   NOTICE   OF   MOTION. 

Pfir^cUng    be  made  in  any  particular  cause,  matter,  or  proceed- 

caiis,^.     .^^^  pending  in  their  respective  courts  on  the  day 

of  transfer.  («) 

Causes  {'^-'i-)  Pending  causes  in  which,  when  the  Judi- 

notiT  of     cature  Act  came  into  operation,  notice  of  motion 

motion  for  £^^^.  .^  decrce  had  not  been  served,  nor  replication 

decree  or  ,  .        , 

replication,  fljed,  wcrc  to  be  Continued  m  the  same  manner  as 
they  would  have  been  continued  in  the  High  Court 
of  Chancery  up  to  the  time  at  which  such  notice  of 
motion  would  have  been  served  or  replication  tiled 
under  the  old  system. (6)  In  a  case  in  which  a  de- 
fendant was  in  default  for  not  answering  interroga- 
tories before  the  Judicature  Act  came  into  force,  it 
was  considered  that  the  plaintiff  was  entitled  to 
issue  an  attachment  for  want  of  an  answer,  under 
the  old  practice  in  England,  i.e.,  ex  ])arte.{c) 
Setting  (428.)  From  and  after  the  stage  at  which  notice 

heilrui  and  ^f  motion  for  decree  could  have  been  served  or  re- 
evidence,  plication  filed  the  cause  was  to  proceed  according 
to  the  ordinary  course  of  the  High  Court  of  Justice 
— that  is  to  say,  the  cause  should  be  set  down  to  be 
heard  on  motion  for  judgment,  and  the  hearing, 
and  all  proceedings  relating  thereto,  should  be 
under  the  new  procedure :  for  example,  issue  should 
be  joined,  and  the  evidence  taken  under  the  Judi- 
cature Act  and  Rules,((Z)  unless  by  consent  or 
special  order,  and  evidence  by  way  of  affidavits, 
could  not  be  used  in  England  as  lieretofore,  nor 
could  the  plaintiff  use  by  way  of  evidence  in  chief 
aflidavits  filed  for  an  interlocutory  motion  for  an 
injunction,  and   a  special  order  to  that  effect  ex 

(a)  Notice,  3  Nov.,  1875  ;    20  Sol.  Jour.,  33. 

(6)  Garling  v.  Koyds,  L.  R.  1  Cli.  D.  81,  V.  C.  H. 

(c)  Royal  Marine  Life  Assurance  Company,  20  Sol.  Jour.  25  M.  R. ; 
Attorney  Gen.  v.  Wiltshire,  L.  R.,  1  Ch.  D.  S'J,  V.  C.  H. 

(d)  Perkins  .;.  Slater.  L.  R.  1  Ch.  D.  83;  24  W.  R.  39,  V.  C.  H. ; 
Attornoy-Geiieral  v.  WiUsliiro,  L.  R.  1  Ch.  D.  8U,  V.  C.  11.;  20  Sol. 
Jour.  47,V.  C.  II. 


AFTER  NOTICE  OR  REPLICATION  SERVED.  Sol 

parte  was  refused. (t()      Even  where  the  affidavits     PendUnj 

■*  Causes. 

had  been  already  prepared  the  Court  refused  to  — 
use  them,  there  being  no  sufficient  reason  offered 
for  not  following  the  prescribed  practice. (6)  An 
order  was  made  for  liberty  to  proceed  under  the 
old  system,  to  take  the  bill  pi'O  confesso  against  a 
very  aged  defendant,  when  it  was  not  desirable  to 
proceed  by  way  of  attachment  for  not  answering 
interrogatories,  (c  ) 

In  one  case,  on  a  consent  in  that  behalf,  the  Court 
allowed  the  cause  to  be  set  down  on  a  motion  for 
judgment  instead  of  motion  for  decree,  as  a  short 
cause ;  although  the  defendant's  time  for  delivery  of  a 
defence  had  not  expired,  and  there  was  no  default.(r/) 

(429.)  Where  the  Judicature  Act  came  into  opera-  After  notice 
tion,  alter  notice  oi  motion  lor  decree  served,  or  for  decree 
replication  filed,  proceedings  were  to   be  continued  tion!^'''''' 
and  concluded  in  the  same  manner  as  they  would 
have  been  in  the  Court  of  Chancery.     They  were 
heard  in  the  same  manner  and  on  the  like  evi- 
dence as  heretofore.       When  they  became  abated 
they  were  to  be  revived  under  the  old  procedure.(e) 

(+30.)  All  matters  and  proceedings  (otlier  than  other 
causes)  were  to  be  continued  and  concluded  in  the  thancruses. 
same  manner  as  they  would  have  been  in  the  Hicch 
Court  of  Chancery.  Where  a  sole  petitioner  to  a 
petition  died  after  an  order  made  thereon,  the  Court 
ordered  that  the  proceedings  be  continued  and  car- 
ried on  by  the  executors  of  the  late  petitioner.(/) 

(a)  Perkins  v.  Slater,  %ihi  supra;  and  see  as  to  usins;  affidavits  on 
the  hearing  where  no  consent  is  given;  Royal  Marine  Life  Assurance 
Company;  20  Sol.  Jour.  25,  M.  R. ;  Attorney-General  v.  Wiltshire 
uhi  supra. 

(0)  Pattison  V.  Dooler,  W.  N.  1875,  255,  V.  C.  M. 

(c)  Culling  V.  Buttifant,  L.  R.  1  Ch.  D.  84;  21  W.  R.  55,  V.  C.  H. 

{d)  Palin  v.  Brookes,  W.  N.,  1875,  188,  V.  C.  B. 

(e)  See  Crane  v.  Loftus,  24  W.  K.  93,  V.  C.  H.,  Roffey  v.  Miller, 
W.N.  1875,  225,  M.  R. 

(/)  In  Atkius,  Estate,  L.  E.,  1  Ch.  D.  82  V.  C.  H. 


352 


SPECIAL  ORDERS. 


Pending 
Causes. 

Special 
orders. 


(431.)  But  any  party  to  a  pending  cause  waa 
permitted  to  apply  by  summons  at  chambers  that 
for  special  reasons  a  direction  might  be  given  for 
continuing  the  cause  according  to  the  ordinary 
course  of  the  High  Court  of  Justice. («)  Thus  an 
order  has  been  made  after  answer  tiled,  to  treat  it  as 
a  statement  of  defence  and  counter-claim,  and  so 
prevent  the  necessity  of  a  cross  action,  plaintiff  to 
be  at  liberty  to  amend  his  bill  if  so  advised.  (A) 
So,  where  a  bill  has  been  served  on  several  defen- 
dants and  interrogatories  on  one  who  did  not  appear 
or  answer,  to  enable  plaintiff  to  proceed  to  enter 
judgment  for  want  of  an  appearance  or  defence 
under  the  new  procedure,  the  cause  was  ordered  to 
proceed  under  it,  and  that  the  bill  be  headed  as  a 
statement  of  claim. (c)  A  like  application  was  re- 
fused where  interrogatories  had  been  served  after 
an  appearance  by  the  defendant,  but  before  he  was 
in  default  in  not  pleading,  plaintiff  being  required 
to  proceed  by  attachment  to  have  his  bill  taken 
2)ro  con/esso,  though  the  actual  execution  of  the 
attachment  was  dispensed  with.{(:?) 


(«)  See  Anon.,  20  Sol.  Jour.  80,  Lush,  J. 

(Jj)  Credit  Fonder  As.  v.  Adair,  W.  N.,  1876,  10,  M.  R. 

(c)  Provident  Permanent  Buildings  As.  v.  Greenliill,  L.  R.,  1  Ch. 
D.  G24,  M.  R. ;  Gardiner  v.  Hardy,  W.  X.,  1870,  185.  V.  C.  B. 

(d)  Gulling  V.  Buttivant,  L.  R.,  1  Ch.  D.  Si;  2i  W.  R.  oo. 


[     853     ] 

CHAPTER  XLV. 

New  Actions. 


431.  All  Suits  called  Actions,  353. 

432.  What  is  an  Action,  353. 

433.  Other  proceedings,  354. 


C431 ")  All  actions  which  have  hitherto  been  com-  Aii  actions 

V  /  .  .  1        iind  suits  to 

menced  by  Writ  of  Summons  and  Plaint  n\  the  be  called 
Superior  Courts  of  Common  Law  in  Ireland,  and 
all  suits  which  have  been  hitherto  commenced  by 
Bill  or  Information  in  the  High  Court  of  Chancery, 
are  to  be  henceforth  instituted  in  the  High  Court 
of  Justice  by  a  proceeding  called  "  an  action."(ft) 

C432 )  The   word  action   is   defined  by    section  Actions. 

^  ''  what  are. 

3(/>)  to  mean  "a  civil  proceeding  commenced  by 
writ,  or  in  such  other  manner  as  may  be  prescribed 
by  rules  of  court,  and  shall  not  include  a  criminal 
proceeding,  by  or  in  the  name  of  the  Crown."  The 
term  action  is  to  be  used  in  future  instead  of  the 
term  "  suit "  in  equity  proceedings  ;  but  a  suit  com- 
menced by  Bill  before  the  Judicature  Act,  is  not  an 
action  within  its  meaning,  and  it  must  be  revived 
in  the  way  used  heretofore.(c) 

It  does  not  seem  to  include  (as  the  term  does  in 
the  English  Rules)  a  suit  commenced  by  citation  in 
the  Court  of  Probate,  nor  does  it  include  a  proceed- 
ing in  the  Chancery  Division  before  the  Land  Judges 
in  respect  of  matters  formerly  in  the  exclusive 
jurisdiction  of  the  Landed  Estates  Court.  Neither 
can  it  include  a  cause  in  rem  or  in  personam  in  the 
High  Court  of  Admiralty  as  the  term  does  under 
the  English  Rules,  (c?) 

.    (a)  Sch.  R.  1,  part  of  Ord.  1,  K.  1,  E. 
(6)  J.  A.,  1877,  s.  3. 

(c)  Darcy  v.  Whittaker,  24  W.  R.  244  ;  W.  K  1876,    17,  V.  C.  B. 
{d)  See  Ord.  1,  R.  1,  English. 


354  OTHEK  PROCEEDINGS. 


Arfi 


ceediui; 


A'eu!  Among  the  Chancery  actions  there  will  still  be 

open  one  for  discovery  in  aid  of  an  action  in  con- 
templation,(6)  or  in  aid  of  proceedings  by  way  of 
arbitration, (c)  and  for  declaration  of  rights, (cZ)  and 
to  quiet  title  in  the  nature  of  a  Bill  of  Peace,  to 
preserve  testimony  in  support  of  some  future 
assertion  of  title,(e)  to  enforce  a  decree,(/)  or  to  set 
aside  a  decree  or  judgment  for  fraud.(f/) 

Of  course  Chancery  proceedings  by  way  of  Peti- 
tion or  Summons  are  not  included  in  the  category 
of  actions, 
other  pro-  (433.)  All  othcr  proceeding  in  and  applications 
to  the  High  Court,  may  be  taken  and  made  in  the 
same  manner  as  they  would  have  been  taken  and 
made  in  any  court  in  which  any  proceedings  or 
application  of  the  like  kind  could  have  been  taken 
or  made,  if  the  Judicature  Act  had  not  passed.(/i) 
This  includes  other  proceedings  of  a  civil  nature 
than  by  way  of  action  which  used  to  be  taken  in 
the  Court  of  Chancery  or  Courts  of  Common  Law, 
and  they  are  to  proceed  as  heretofore,  ex.  gr.,  pro- 
ceeding to  enforce  or  set  aside  awards. (i) 

(/;)  Orr  v.  Draper,  L.  It.  4  Cli.  D.  92  ;  25  W.  R.  23,  V.  C.  II. 

(c)  See  Ainsworth  v.  Starkie,  W,  N.  187C,  p.  8;  20  Sol.  Jour.  1G2, 
Quain,  J. 

(rf)  See  Cox  y.  Barker,  W.  N.  187G,  p.  210,  V.  C.  B.  /i.,  231; 
A.  C. 

(e)  See  Vane  v.  Vane,  24  W.  R.  5G5,  Ch.  D. 

(/)  See  Commissioners  of  Sewers  v.  Gellatby,  W.  N.  187G,  p.  201; 
24  W.  R.  1050,  M.  R. 

{y)  See  Flower  v.  Lloyd,  L.  R.  G  Chan.  D.  297,  25  W.  R.  793,  A.  C. 

(/()  Sch.  R.  I,  part  of  Ord.  1,  R.  3,  E. 

(i)  Robert  Phillips  and  Brooke  Gill,  in  re  arbitration,  L.  R.  1,  Q.  B.  I). 
78;  24  W.  R.  158;  20  Sol.  Jour.  132. 


[     355     ] 

CHAPTEH  XLVI. 
The  Writ  of  Summons. 

434.  All  Actions  commenced  by,  355. 

435.  Preparation  of  the  Writ,  355. 

436.  Form  of  Writs,  356. 

437.  Title  of  Court  and  Division,  356. 

438.  Title  of  Cause,  356. 

439.  Date  and  Teste,  356. 

440.  Indorsement  of  Claim,  357. 

441.  Nature  of  ground  of  Comjilaint,  357. 

442.  Sealing  and  issue,  358. 

443.  Copy  filed  and  numbered,  358. 

444.  Amendment  of  Writ,  359. 


(434.)  Every  action  in  the  High  Court  must  be  ah  actions 

y  /  '^  1        1  •      1       commencfd 

commenced  by  writ  of  summons,  (a)  whether  it  be  by  writ  of 
a  Chancery  action  or  a  common  law  action,  for  debt, 
damages,  ejectment,  replevin,  and  instead  of  filing 
a  bill  first,  and  serving  an  endorsed  copy  of  it,  or 
issuing  a  WTit  of  summons  and  plaint,  a  new  form 
of  writ  (to  be  had  at  any  law  stationer's)  is  to  be 
filled  up  and  endorsed,  and  then  brought  to  the 
Record  and  Writ  ofiice,  if  it  be  a  Chancery  action, 
and  to  the  Writ  and  Seal  Office  if  assigned  to 
either  the  Queen's  Bench,  Common  Pleas,  or 
Exchequer  Division,  together  with  a  copy  to  be 
stamped.  This  writ  of  summons  is  the  only  way 
of  commencing  an  action,  wdiether  against  a  peer, 
member  of  Parliament,  corporation,  or  solicitor. 
Forms  of  writs  of  summons  are  given  in  the  Ap- 
pendix A,  part  1,  Nos.  1  and  2,  according  as  the 
writ  is  to  be  served  within  the  jurisdiction,  or  out- 
side the  jurisdiction. 

(435.)  The  writ  of  summons  is  to  be  prepared  by  rrepara- 

\  -'  i       1  ./    ^ioii  of  writ 

the  plaintiff"  or  his  solicitor,(6)  and  then  produced  by  solicitor, 
to  the  proper  officer  to  be  sealed,  after  which  it  is 
deemed  to  be  issued. 

(a)  Sehed.,  Rule  2,  Ord.  2,  R.  1,  E. 

(b)  Sch.  R.  J,  Ord.  5,  R.  5,  E. 


356 


TITLE   OF   COURT   OR   DIVISION. 


Writ  of 
Summoyis, 

Form  of 
writs. 


Title  of 
court  or 
division. 


Title  of 
cause. 


Date  and 
teste. 


(436.)  Every  writ  of  summons,  and  the  endorse- 
ment thereon,  may  be  in  one  of  the  forms  given  in 
Appendix  A ;  and  any  costs  incurred  by  the  use  of  any 
more  prohx,  or  other  forms  of  writ,  or  of  endorse- 
ments thereon,  must  be  borne  by  the  party  issuing 
the  same,  unless  the  Court  shall  otherwise  pre- 
scribe. («) 

(437.)  The  writ  should  be  entitled  in  the  High 
Court  of  Justice,  and  must  specify  the  division  of 
the  High  Court  to  which  it  is  intended  that  the 
action  should  be  assigned. (6) 

The  solicitor,  by  leaving  a  copy  of  the  proposed 
writ  with  the  officer,  specifying  the  division,  suffi- 
ciently gives  notice  of  the  division  to  which  the 
action  is  to  be  attached,  under  the  Judicature  Act, 
1877,  sec.  37. 

(438.)  The  writ  should  contain  the  correct  title  of 
the  cause,  by  giving  the  names  of  all  the  plaintilfs 
and  defendants  in  full. 

In  actions  for  the  administration  of  assets  of  a 
deceased  person,  the  title  should  be  prefaced,  "  In 
the  matter  of  the  estate  of  A.  B.,  deceased,"  (c)  and 
probably  it  should  state  it  is  on  behalf  of  the 
plaintiff,  and  all  other  creditors. (cZ) 

After  the  writ  is  entered  in  the  Cause  Book,  the 
action  receives  a  distinguishing  date,  letter,  and 
number. 

(439.)  Every  writ  of  summons  and  every  other 
writ  must  bear  date  on  the  day  which  it  is  issued 
and  be  tested  in  the  name  of  the  Lord  Chanctdlor, 


(«)  Sch.  R.  3,  Ord.  2,  K.  2  &  3,  E. 
(6)  Sch.  R.  3,  Ord.  2,  R.  1,  E. 

(c)  See  Eyre  v.  Cox,  24  W.  R.  317 ;  20  Sol.  Jour.  311,  M.  R. 

(d)  Worraker  v.  Prjer,  24  W.  R.  269 ;  W.  N.,  1876,  p.  44,  M.  R. ; 
Fryer  v.  Boyle,  W.  N.,  1876,  p.  139;  Adcock  v.  Peters,  W.  N.,  1876, 
p.  139.  Contra— See  Cooper  v.  Blii5sett,  L.  R.  1  Ch.  D.  G9I  ;  24 
W.  R  235  ;  W.  N.,  1876,  p.  17,  V.  C.  II ;  Fryc  v.  Wiseman,  20  Sol. 
Jour.  292,  v.  C.  II. 


INDORSEMENT   OF   CLAM.  ^Oi 

or  if  the  office  of  Lord  Chancellor  be  vacant,  in  the     if'nv  o/ 

1         1  /    \  Stimnions. 

name  of  the  Lord  Chief  Justice  of  Ireland.(a)  

(440.)   The  writ  of  summons  is  to  be  indorsed  indorse- 

^  '^  .  ment  of 

with  a  statement  of  the  nature  of  the  claim  made,  claim, 
or  of  the  relief  or  remedy  required  in  the  action,(6) 
and  this  indorsement  is  to  be  made  on  the  writ 
before  it  is  issued. (c)  A  variety  of  concise  forms  of 
indorsement  applicable  to  different  kinds  of  claims, 
both  equitable  and  legal,  are  given  in  the  Appendix 
A.,  part  2,  sections  1  &  2,  which  may  be  followed 
in  effect  so  far  as  they  may  be  applicable  to  the 
case.  But  if  none  of  the  forms  referred  to  be 
applicable  to  the  plaintiff's  case,  such  other  similar 
and  concise  forms  may  be  used  as  the  nature  of  the 
case  may  require. (tZ)  Where  the  demand  is  on 
foot  of  an  account,  ex.  gr.,  for  goods  sold,  consisting 
of  a  crreat  number  of  items,  it  will  be  sufficient  to 
say — for  balance  of  account,  (e) 

As  to  indorsement  of  liquidated  demands  with  a 
view  to  final  judgment  in  case  of  non-appearance, 
or  notwithstanding  appearance,  see  Order  II.,  R.  2 
and  3,  infra,{f)  or  for  account  see  Rule  5.(g) 

The  indorsement  should  not  be  altered  after  the 
writ  is  sealed. (/i) 

(441.)  In  the  indorsement  of  the  claim  it  is  not  Precise 
essential  to  set  forth  the  precise  ground  of  com-  compLaii.t 
plaint  or  the  precise  remedy  or  relief  to  which  the  es"lntiai. 
plaintiff  considers  himself  entitled,  and  the  plaintiff 
may,  by  leave  of  the  Court  or  a  judge,  amend  the 

(a)  Sch.  R.  4,  Ord.  2,  R.  8,  E. 
(&)  Sch.  E.  2. 

(c)  Sch.  R.  5,    Ord.  3,  R.  I. 

(d)  Sch.  R.  6,  part  of  Oid.  3,  R.  2,  E. 

(e)  Anon.  20.  Sol.  Jour.  81,  Lush,  J.  S.  C.  ;  called  Parson  v.  Smith, 
20  Sol.  Jour.  93,  A.  C. 

(/•)  Ord.  11,  11.  2  &  3,  infra. 

(g)  Ord.  11,  R.  5 ;  Ord.  3,  R.  G,  7  &  8,  E. 

(A)  Anon.,  20  Sol.  Jour.  31,  Lush,  J. 


358  SEALING  AND   ISSUING. 

m-it  of    indorsement  so  as  to  extend  it  to  any  other  cause 

Summons.  ,  it,-  -,  ^  ^•    c  ,     \ 

—       01  action  or  any  additional  remedy  or  reiiei.(a) 

It  would  seem  therefore  that  the  plaintiff  is  not 
required  at  the  initiatory  step  of  the  action  to 
determine  the  precise  legal  character  of  his  com- 
plaint, while  perhaps  his  solicitor  has  not  yet  fully 
ascertained  the  facts.  And  doubtless  he  may  obtain 
an  injunction  or  mandamus  or  receiver  if  it  ap- 
pears to  be  just  or  convenient  that  he  should 
have  it  although  he  has  not  mentioned  it  in 
the  indorsement. (5)  But  where  the  substantial 
object  of  the  action  is  to  have  an  injunction  or 
receiver,  the  writ  should  be  endorsed  accordingly. (c) 
And  generally  speaking  the  relief  should  be  in 
harmony  with  the  nature  of  the  claim  indicated  by 
the  indorsement,  and  where  it  was  on  a  guarantee 
for  price  of  goods  sold  and  delivered,  signed  by  a 
female  defendant  sued  with  her  husband,  making 
no  reference  to  separate  estate,  this  would  scarcely 
enable  the  Court  to  give  judgment  charging  the 
debt  on  her  separate  estate. (cZ) 
Seaiingand      (442.)  Evcrv  Writ  of  summons  is  to  be  sealed  by  the 

issuing.  \  y  J  •/    ^ 

proper  officer,  i.e.,  the  Clerk  of  Records  and  Writs, 
and  when  sealed  is  deemed  to  be  issued. (e) 
Copy  filed        (443.)  The  plaintiff  or  his  solicitor,  on  or  within 

and  action  ^  ^  '■  ,       .         .  ,  •       c 

distin-  two  days  from  after  the  issuing  the  writ  of  summons, 
a  number,  is  to  Icavc  witli  the  Clerk  of  the  Records  and  Writs 
in  Chancery  actions,  and  in  other  actions  with  the 
Pleadings  Assistant  of  the  Division,  a  correct  copy 
of  it  with  all  its  indorsements  signed  b}',  or  for  the 
solicitor  leaving  the  same,  or  by  the  plaintiff  himself 

(n)  Sch.  R,  6,  part  of,  Ord.,  3,  R.  2,  E. 

(6)  Sec  J.  A.,  1877,  s.  28,  sub.  8,  and  p.  2S1,  chapter  xxxviii. 
(c)  See  Colbourne  v.  Colbourne,  L.  R.,  1  Ch.  D.  090,  V.  C.  H. 
((/)  See  Ikitterworth  v.  Tec  &  "Wife,  W.  N.,  1870,  9;  20  Sol.  Jour. 
178,  Quain,  J. 
(e;  Sch.  R.  7,  Ord.  5,  R.  G,  E. 


AMENDMENT   OF   WEIT,  859 

where  he  sues  in  persoii.(a)  The  officer  thereupon  files   ^J'j^^J^'^f^ 
the  copy  and  makes  an  entry  of  it  in  a  book  called  the      — 
Cause  Book,  (6)  and  attaches  the  date  of  the  year, 
and  a  letter   and  number  by  which  the  action  is 
thenceforth  distingvushed,  similar  to  that  used  in 
Chancery  causes  under  273  G.  0.,  1867. 

(444.)  The  Court  of  a  judge  may  at  any  stage  of  ^^^^^f^"^- 
the  proceedings  allow  the  plaintiff  to  amend  the  writ, 
writ  of  summons  on  such  terms  as  may  seem  just. (&6) 
Where  the  writ  is  amended  in  the  name  of  any  of 
the  parties  and  affidavits  have  been  filed  in  that 
case,  a  little  difficulty  arises,  and  it  would  seem  the 
affidavits  must  be  re-sworn  unless  the  parties  con- 
sent to  use  them  as  they  are.(c) 

A  writ  and  statement  of  claim  have  been 
amended  and  altered  into  an  information  and  action, 
having  first  obtained  the  sanction  of  the  Attorney- 
General,  (c/) 

As  regards  the  indorsement,  generally  speaking, 
after  statement  of  claim  delivered,  amendment  of 
the  indorsement  becomes  unnecessary. (e) 

A  writ  issued  before  the  Judicature  Act  has  been 
amended  by  inserting  in  the  indorsement  dates  to 
enable  the  plaintiff  to  sign  final  judgment  in  default 
of  appearance,  on  a  liquidated  demand,  notwith- 
standing an  appearance.  (/) 

(a)  Ord.  iv.  R.  2,  infra,  but  see  Sch.  R.  8,  Ord.  5,  R.  7,  E. 

lb)  Sch.  R.  9,  Ord.  5,  R.  8,  E. 

(Ift)  Ord.  xxvi.  R.  10,  infra;  Ord.  27,  R.  11,  Feb.,  1876,  E. 

(c)  See  Mouell's  Estate,  20  Sol.  Jour.,  451. 

(d)  See  Caldwell  v.  Pagham  Harbour  Cr.,  L.  R.,  2  Ch.  D.  221 ;  24: 
W.  R.  790,  V.  C.  H. 

(e)  Large  v.  Large,  W.  N.,  1877,  198,  M.  R. 

(J)  Denison  v.  Franklyn,  20  Sol.  Jour.  198,  Lindley,  J. ;  Anon.  "W. 
N,,  1876,  53,  Archibold,  J. 


[     3G0     ] 

CHAPTER   XLVII. 

Service  of  Writ. 

445.  Service  of  Writ.  p.  360. 
44G.  Substitution  of  Service,  361. 

447.  Service  out  of  the  Jurisdiction,  362, 

448.  Disputed  Service,  3G2. 


wnl 


scrvicu  of  (445.)  The  writ  of  summons  is  to  be  served  in 
the  same  manner  as  process  from  the  court  whose 
jurisdiction  is  transferred  to  the  High  Court  might 
have  been  served  if  the  Judicature  Act  had  not 
}Dassed,(a)  i.e.,  writs  marked  for  the  Chancery 
Division  are  to  be  served  in  the  same  manner  as  a 
copy  of  the  bill  which  was  in  the  nature  of  process 
might  have  been  served,  and  writs  marked  for  any 
one  of  the  Common  Law  Divisions  may  be  served  in 
the  manner  in  which  writs  of  summons  and  plaint 
mio-ht  hitherto  have  been  served. 

Service  of  the  writ  in  Common  Law  actions  will 
still  be  governed  by  the  Common  Law  Procedure 
Act,  1853,  s.  82.  When  defendant  is  within  the  juris- 
diction it  should  be  served  personally,  if  practicable, 
with  due  and  reasonable  diligence,  or  failing  that  by 
leaving  the  copy  at  the  defendant's  house  or  place 
of  business  with  a  member  of  his  family  or  servant 
or  clerk  aged  sixteen — leaving  a  copy  and  showing 
the  original  writ  or  a  concurrent  writ.  (6^ 

Bodies  corporate  and  aggregate  are  to  be  served 
as  directed  by  sec.  33  of  same  statute.  A  defendant 
may  be  served  in  a  prison  when  undergoing  penal 
servitude  without  any  order  of  the  court.(c) 

Personal  service  is  absolutely  necessary  to  take 
advantage  of  the  Bills  of  Exchange  Act,  and  service 
on  a  paiiner  will  not  suffice.((?) 

(a)  Sch.  R.  10,  part  of. 

(b)  See  Frencli  v.  INIullijjan,  Ir.  Rep.  5  Com.  Law,  50,  Ex. 

(c)  Cosby  V.  Robinson,  f*  Ir,  Jur.  N.  S.  87,  Keogh,  J.;  see  Wl;ite  v. 
Barry,  Ver.  &  Scri.  287,  Ex. 

(of)  Pollock  V.  Campbell,  L,  R,  1  Ex.  U,  50 ;  24  W,  R.  248. 


SUBSTITUTION   OF   SERVICE.  oOl 

In  England,  without  an  order,  nothins;  less  than   Servhe  o/ 

o  '  ^  o  Writ. 

personal  service  will  be  sufficient,  («)   but  as  this      — 
was  not  absolutely  necessary  before  in  Ireland,  it 
does  not  seem  to  be  necessary  now. 

In  actions  for  possession  of  land  under  the  Land- 
lord and  Tenant  Act,  1860,  ss.  55  and  74,  when  for 
non-payment  of  rent,  or  for  overholding,  service 
must  be  made  on  all  persons  in  actual  possession  of 
the  land  as  tenants  or  under-tenants,  and  in  actions 
on  the  title  it  is  also  necessary  to  serve  all  persons 
in  receipt  of  the  rents  and  profits,  or  claiming  to  be 
entitled  thereto— C.  L,  Pro.  Act,  1853,  s.  197. 

In  Chancer}^  actions,  service  of  copy  of  the  writ 
is  effected  personally,  or  by  leaving  the  copy  with 
a  servant  or  some  member  of  the  family  aged  six- 
teen years  and  upwards,  at  his  dwelling-house  or 
usual  place  of  abode.(?j) 

(446.)  The  High  Court  has  the  same  power  ofsubstitu- 
directing  substitution  of  service,  of  that  any  service  service. 
already  made  shall  be  deemed  good  service,  or  that 
notice  shall  be  substituted  for  service  {i.e.  probably 
in  respect  of  writs  for  service  out  of  the  jurisdiction) 
as  might  have  been  exercised  by  the  Courts  whose 
jurisdiction  is  transferred  to  the  High  Court  if  the 
Judicature  Act  had  not  passed.(c)  ^^— - 

Substitution  of  service  as  to  Common  Law  writs 
was  and  still  is  regulated  by  the  C.  L.  Pro.  Act, 
1853,  s.  34,  which  requires  that  it  shall  be  made 
appear  to  the  satisfaction  of  the  Court  or  Judge,  that  / 

a  defendant  in  an  action,  the  cause  of  which  has         / 
arisen  within  the  jurisdiction,  has  not  been  served 
and  has  not  appeared,  and  that  due  and  proper  means 
have  been  used  to  serve  him,  on  which  the  Court  or 
Judge  may,  on  application  after  the  time  for  ap- 

(«.)  Anon.  W.N.  1875,  202,  Lusli,  J. 
(6)  See  25  G.  0.,  Oct.  31,  1SG7. 
(c)  Sch.  R.  10,  part  of. 

R 


802 


SERVICE   OUT   OF  JURISDICTION. 


of  jurisdic- 
tion. 


Service  of  pearing  has  expired  and  while  the  writ  is  in  force, 

'      authorize  such  substitution  of  service  through  the 

post  office,  or  in  such  manner  and  with  such  ex- 
tension of  time  for  service  and  appearance  as  may 
seem  fit. 

Substitution  of  service  in  Chancery  suits  in  Ire- 
land was  had  by  special  order  and  usually  by  service 
upon  some  agent  in  Ireland  managing  the  affairs  of 
the  defendant,  if  abroad  and  in  communication  with 
him,(r6)  or  by  service  on  the  defendant  himself  in 
person,  if  living  abroad.  Without  an  order  of  a 
Judge,  nothing  short  of  personal  service  is  sufficient 
in  England.(/j) 

Service  out  (447.)  Scrvicc  of  a  writ  of  summons  out  of  the 
jurisdiction  can  only  be  made  by  leave  of  the  Court  or 
Judge,  and  only  in  certain  classes  of  cases  in  which 
the  whole  or  some  part  of  the  subject-matter  of  the 
action  is  land  or  stock  or  other  property  within  the 
jurisdiction,  or  in  respect  of  a  contract  made  within 
the  jurisdiction  or  broken  within  it.(c) 

448.  Where  defendant  swears  he  has  not  been 
served  and  has  had  no  knowledge  of  the  writ,  it  has 
been  usual  to  set  aside  judgment  by  default  without 
an  affidavit  of  merits.(cZ)  If  defendant  admits  the 
debt  he  may  be  required  to  lodge  it  and  the  costs, 
the  latter  to  abide  result  of  prosecution  for  perjury 
against  process-server,  (e)  If  the  service  be  admitted, 
but  alleged  to  be  irregular,  ex.  gr.,  out  of  jurisdic- 
tion, defendant  by  appearing,  without  moving  to  dis- 
charge the  order  for  service  waives  the  objection.(/) 


Disputed 
service. 


(a)  See  Hobhouse  v.  Courtney,  12  Sim.  140. 

(6)  Anon.  W.  N.  1875,  203,  Lush,  J. 

(c)  Viilc  Ord.  X.,  injra. 

{d)  ]\Iartin  v.  Williams,  Ir.  Rep.  3  Com.  Law,  5  Q.  B.  overruling 
S.  C. ;  Ir.  Rep.  2  Com.  Law,  84  ;  and  sec  Tisdall  v.  Humphreys,  Ir 
Rep.  1  Com.  Law,  1  C.  P. ;  Jloseley  v.  Blake,  28  L.  J.  35  Ex.  Ch. 

(e)  OTerrall  v.  Burke,  Ir.  Rep.  2  Com.  Law,  82  Ex. 

(J)  Edwards  v.  'AVarden,  L.  R,  9  Chan.  495. 


[     SG3     ] 

CHAPTER  XLVIII. 

Appearance. 

448.  Defendant  bound  to  appear,  p.  3G3. 

449.  Appearance  without  Defence,  3G3. 

450.  Time  for  Appearance,   3G3. 

451.  Mode  of  Appearance,  3G4. 

452.  Address  for  Service,  365. 

453.  Entry  of  Appearance,  365. 

454.  Liberty  to  Appear  and  Defend,  365. 

455.  Same  as  Landlord,  365. 

456.  Default  of  Appearance,  365. 


(448.)  A  defendant  served  with  a  writ  of  sum-  Defendant 

bound  tc 
appear. 


mons  is  bound  to  appear  to  the  writ  at   such  time 


and  in  such  manner  as  is  directed  by  the  rules  of 
court,  (a) 

The  writ  of  summons  requires  the  defendant  to 
cause  an  appearance  to  be  entered  for  him  in  the 
assigned  division  of  the  High  Court  and  contains  a 
memorandum  at  foot  apprizing  him  that  he  may 
appear  to  it  by  entering  an  appearance  either  per- 
sonally or  by  solicitor,  at  the  proper  office  (naming 
it).     See  Appendix  A.,  Part  I.,  No.  6. 

(449.)  It  is  not  necessary  for  a  defendant  when  Appear- 
entering  an  appearance  to  the  writ  of  summons  to  without 
file  any  defence  or  answer  thereto.(6)  defence. 

(450.)  The   ordinary  time  for  appearance,  where  Time  for 
the  service  is  within  the  jurisdiction,  is  within  eight 
days  after  the  service  of  the  writ  upon  the  defen- 
dant, inclusive  of  the  day  of  service. 

Where  the  writ  of  summons  or  notice  of  its  issue 
is  to  be  served  out  of  the  jurisdiction  the  number 
of  days  allowed  for  appearance  is  fixed  by  the  judge, 
and  counts  from  the  service,  but  inclusive  of  the 
day  of  service. 

Where  substituted  service  is  ordered,  the  time  to 
appear  is  reckoned  from  the  date  of  the  taking  effect 
of  the  order  for  the  substituted  service,  (c)     Even 

(a)  Sch.,  R.  9.  (b)  Sch.,  E.  14,  part  of. 

(c)  Johnson  v.  Moffatt,  W.  R.,  1875,  p.  248 ;  20  Sol.  Jour.  139 

e2 


:i(3i  MODE   OF   APPEAEANCE, 

Appcm-oncc.  after  the  allotted  time  for  appearance  a  defendant 

may  appear  at  any  time  before  judgment.(c) 
Mode  of  (4'51-)  The  mode  of  a  defendant  entering  an  ap- 

appearance.  ,  •  i       i-  •      i  i    t         • 

pearance  to  a  writ  oi  summons  is  by  delivering 
to  the  proper  officer  (that  is,  the  Clerk  of  Re- 
cords and  Writs  in  actions  assigned  to  the  Chancery 
Division,  and  in  other  divisions  the  Pleadings 
Assistant),  a  memorandum  in  writing,  dated  on  the 
day  of  delivering  the  same,  and  containing  the  name 
of  his  solicitor  or  stating  that  he  defends  in  person,  (c^) 
The  names  of  several  defendants  appearing  by  the 
same  solicitor  may  be  included  in  one  memo- 
randum.(c) 

It  should  state  that  the  defendant  requires  or  does 
not  require  a  statement  of  complaint  to  be  filed  and 
delivered. 

Where  husband  and  wife  are  sued  together  the 
husband  should,  under  ordinary  circumstances,  ap- 
pear by  attorney  for  both.(/)  If  the  husband  ap- 
])eared  alone  without  leave,  the  appearance  might 
be  set  aside.  So  an  appearance  entered  for  the  wife 
alone  would  be  set  aside  at  law.(r/) 

It  was  otherwise  in  equity.  (/<)  A  married  woman, 
if  sued  alone  must  appear  in  person  and  not  by  soli- 
citor.(i)  Afterwards  by  leave  of  the  court  or  a 
judge  she  may  defend  without  her  husband,  and 
without  a  next  friend  on  giving  security  if  re- 
quired. (/<;) 

Quain,  J.  See  Crane  v.  Jullion,  L.  R.,  2  Ch.  D,,  220;  24  W.  R., 
GDI,  V.  C.  II. 

(c)  See  Ord.  XI.,  R.  7,  hifra;  Ord.  12  R.  15,  E. 

(rf)  Sch.,  R.  U;  Onl.  12,  R.  (!,  E. 

0)  See  infra,  Ord.  XL,  R.  2. 

(/)  White  V.  Seaver,  6  Ir,  C.  L.  R.,  465,  Q.  B,  Copingcr  v.  Quirk, 
4  Ir.  C.  L.  R.  442  ;  7  Ir.  Jur.  330,  C.  P. 

(y)  2  Fcrg.  Prac.  72G.  (A)  1  Daniel,  Ch.  Pr.  405,  4th  Edn, 

(0  Bcrgiii  V.  Burke,  4  Ir.  C.  L.  R.  90  ;  7  Ir.  Jur.  27,  C,  P., 
Ki'iincdj'  V.  Grace,  7  Ir.  Jur.  28,  C.  P, 

(/t)  Ord,  XV.,  R.  8,  hfra. 


ADDRESS   FOR   SERVICE.  305 

(452.)  Where  defendant  appears  by  solicitor  the  Jppmrant,: 
appearance  should  state  in  the  memorandum  his  re-  Address  for 
gistered   residence.      If  the  defendant  appears   in 
person  he  should  state  in  the  memorandum  his  ad- 
dress and  a  place  to  be  called  his  address  for  service 
which  must  be  in  Ireland. (/) 

(453.)  The  officer,  on  receipt  of  the  memorandum  Entry  of 

.  1    f       1        •   1  1  appearance. 

of  appearance  is  bound  forthwith  to  enter  tlie  aji- 
pearance  in  the  Cause  Book.((/) 

(454.)  Any  person  not  named  as  a  defendant  in  a  Liberty  to 
writ  of  summons  for  the  recovery  of  land  may  by  defend  in 
leave  of  the  court  or  judge  appear  and  defend  on  ^^^^  ""^"  ' 
tiling  an  affidavit  showing  that  he   is  in  possession 
of  the  land  either  by  himself  or  his  tenant.  (/O 

(455.)  Any  person  appearing  to  defend  an  action  Same  by 
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  appeal's 
as  landlord.(i) 

(456.)  The  entering  by  the  plaintiff  of  an  appear-  Default  of 
ance  for  a  defendant  who  is  m  default  m  not  enter- 
ing an  appearance  for  himself  is  discontinued  and 
instead  thereof  the  plaintiff  is  generally  entitled 
upon  an  affidavit  of  service  to  sign  judgment  inter- 
locutory or  final  according  as  the  nature  of  the 
demand  is  liquidated  or  otherwise,  and  in  Chancery 
actions  to  proceed  as  if  an  appearance  had  been  en- 
tered by  defendant. (A;)  , 

Where  defendant  is  an  infant  or  person  of  un- 
sound mind,  the  plaintiff  must  first  apply  to  appoint 
a  guardian  to  defend.(/) 

(/)  Sch.,  R.  14,  part  of. 

(S)  Sch.,  R.  IG,  Orel.  12,  R.  11,  E. 
.     (h)  Sch.,  R.  17,  Ord.  12,  R.  18,  E. 

(i)  Sch.,R.  18;  Ord.  12,  R.  19,  E.  See  Com.  Law  Pro.  Act,  1853, 
s.  200. 

ik)  See  Ord.  XII.  R.  11,  infra.  (0  Ord.  XII.,  R.  1,  infra. 


[     3GG     ] 

CHAPTER  XLIX. 
SuMMAEY  Orders  for  Relief  before  Pleading. 

458.  Judgment  for  default  of  Appearauce,  p.  3G6. 

459.  After  appearance  on  specially  endorsed  Writ,  3GG. 

460.  For  an  Account,  300. 


Judgment        (458.)  Where  any  defendant,  or  any  one  of  several 

lor  want  of         ^       ^  ,     .        t         ,  •  . 

appearance,  defendants,  does  not  m  due  time  enter  an  appear- 
ance to  the  action,  the  plaintiff  is  entitled,  npon 
filing  an  affidavit  of  service  of  the  writ  or  of  the 
notice  in  lieu  of  service,  if  the  claim  be  for  a 
debt  or  liquidated  demand,  specially  indorsed  on 
the  writ,  he  may  then  sign  final  judgment  for  any 
.sum  not  exceeding  that  indorsed,  with  interest, 
if  any,  to  date  of  judgment  and  a  sum  for  costs. (a) 
If  the  claim  be  for  an  unliquidated  demand  he  may 
sicrn  interlocutory  judgment  and  proceed  to  assess 
his  damages. 
Summary  (4.59.)  After  appearance  to  a  writ  specially  en- 
judgment  clorsed  with  a  claim  for  a  liquidated  demand  and 
appearance,  costs,  the  plaintiff,  on  a  proper  affidavit,  verify- 
ing his  cause  of  action,  and  of  his  belief  that 
there  is  no  defence,  may  call  on  the  defendant  to 
show  cause  why  he,  the  plaintiff,  should  not  sign 
judgment  for  the  amount  with  interest  and  costs,  and 
the  Court,  unless  defendant  can  satisfy  it  that  he 
has  a  good  defence  to  the  action  on  the  merits,  may 
allow  judgment  to  be  signed.(6) 
Summary         mqq x  g^    either   in   default   of    appearance    or 

order  f or  an         ^  '  ' 

account,      after  it,  where  the  writ  is  indorsed  for  an  account, 
tlie  Court  may  order  one  to  be  taken.(c) 

(«)  See  Ord.  xii.,  R.  3  infra;  Ord.  R.  xiii.,  3,  E. 
(6)  See  Ord.  xii.,  R.  G  infra  ;  Ord.  xiv.,  R.  1,  E. 
(c)  See  Ord.  xiv.  infra ;  Ord.  xv.  E. 


[    SG7    ] 

CHAPTER  L. 

Parties  to  Actiox. 

461.  Misjoinder  not  to  defeat  action,  p.  3G7. 

462.  Misjoinder  of  Plaintiff,  367. 

463.  Joinder  of  new  Plaintiff,  368. 

464.  Parties  may  be  added,  369. 

465.  Adding  Plaintiff,  369. 

466.  Consent  of  Plaintiff,  370. 
4C7.  Joinder  of  Defendants,  371. 

468.  Service  with  notice,  373. 

469.  J'arties  struck  out,  373. 

470.  Representative  of  numerous  parties,  374. 


4G1.  No  action  can  be  defeated  by  reason  of  the  No  action 
misjoinder  of  parties,  and  the  Court  may  in  every  defeated  by 
action  deal  with  the  matter  in  controversy  so  far  as  ^f  paruer 
reo-ards    the    rights    and   interests   of  the  parties 
actually  before  it.(a) 

Since  the  Judicature  Act,  eight  persons,  trustees 
of  a  charity,  being  libelled  in  one  and  the  same 
letter,  were  deemed  entitled  to  bring  a  joint  action 
of  libel  against  the  defendant  for  the  libel,  as  a 
separate  wrong  to  each  man  who  complained  of  it, 
but  the  damages  ought  to  be  assessed  separately 
(except  in  cases  of  partnership). (6) 

462.  The  misjoinder  of  plaintiffs,  i.e.,  the  adding  Misjoinder 
of  a  plaintiff  who  had  no  interest  in  the  suit,  or  °  ^^^^^  ** 
whose  interest  was  in  conflict  with  the  interests  of 
his  co-plaintiffs,  or  as  to  whom  there  was  a  complete 
defence,  was  fatal  both  at  law  and  in  equity,  and 
precluded  the  other  plaintiffs  from  having  any  relief 
whatever.  This  inconvenient  rule  was  mitigated  in 
Common  Law  actions  by  requiring  the  defect  to  be 
pointed  out  by  notice  and  enabling  the  Court  to 
remove  the  defect  by  amending  the  record.  Com. 
Law  Pro.  Act  (Ire.)  1853,  sec.  84. 

In  Equity  the  Court  was  latterly  enabled,  instead 
of  dismissing  the  bill,  whenever  it  appeared  that 

(a)  Sch.,  R.  19,  part  of  ;  Ord.  16  R.  13,  E. 

lb)  Booth  V.  Briscoe,  L.  R.  2  Q.  B.  D.  496;  25  W.  R.  838,  A,  C. 


plaintiffs. 


338  JOINDER   OF   PLAINTIFFS. 

I'arfi/'!!  to  notwithstanding  the  conflict  of  interest  in  the  co- 
Artwn.  p^.^^-^^^^^g^  QY  the  want  of  interest  in  some  of  them, 
or  the  existence  of  some  ground  of  defence  affecting 
some  one  or  more  of  them,  the  plaintiffs  or  some  of 
them  are  or  is  entitled  to  relief,  to  give  such  relief 
and  modify  its  decree  according  to  the  special  cir- 
cumstances of  the  case,  and  for  that  purpose  direct 
such  amendments  as  might  be  necessary,  and  to  treat 
any  one  or  more  of  the  plaintiffs  as  if  he  were  a 
defendant.  Where  the  plaintiff,  having  an  interest 
died,  leaving  a  plaintiff  on  the  record  without  any 
interest,  the  Court  might,  at  the  hearing  of  the 
cause,  order  it  to  stand  revived,  and  if  it  saw  fit 
proceed  to  a  decision. (a) 
Joinder  of  (463.)  All  parties  may  be  joined  as  plaintiffs  in 
whom  the  right  to  any  relief  claimed  is  alleged  to  ex- 
ist, whether  jointly,  severally,  or  in  the  alternative. 
And  judgment  may  be  given  for  such  one  or  more  of 
the  plaintiffs  as  mr.y  be  found  entitled  to  relief,  for 
such  relief  as  he  or  they  may  be  entitled  to  without 
amendment.  But  the  defendant,  though  unsuccess- 
ful, 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.(6) 

In  a  recent  case  two  adjoining  owners  of  property 
joined  as  co-plaintiffs,  complaining  of  a  common 
nuisance,  and  the  case  of  one  failed  while  that  of  the 
other  succeeded,  the  bill  was  dismissed  as  to  the 
first,  with  costs  to  be  paid  to  tlie  defendant  so  far  as 
they  had  been  occasioned  by  reason  of  his  being 
made  a  plaintiff,  and  deducted  from  the  costs  which 
the  defendant  was  ordered  to  pay.((') 

(a)  See  15  &  16  Vic.  c.  8G,  sec.  40,  English  aiul  Chan.  (Ire.)  Act, 
1867,  sec.  154. 
io)  See  Ord.  xv.  R.  1,  infra;  Ord,  16,  R.  1  E. 
(c)  Umfreville  v.  Johnson,  L.  R.  10  Chan.  580. 


PARTIES  MAY   BE  ADDED.  309 

('464.')  It  was  stated  to  be  the  clear  intention  of  the   Parties  to 

^  '  .  Action. 

Act,  that  all  persons  interested,  and  every  question      — - 
that  can  arise  should  be  brought  before  the  Court,  so  bradded."'^ 
as  to  dispose  once  for  all  of  the  whole  matter,  and  this 
although  some  of  the  parties  may  not  be  interested 
in  the  entire  matter,  (a) 

The  Court  or  Judge  may  either  upon  or  without 
application,  order  the  name  or  names  of  any  party 
or  parties,  whether  plaintiffs  or  defendants,  who 
oun-ht  to  be  joined  or  whose  presence  before  the 
Court  may  be  necessary  in  order  to  enable  the  Court 
effectually  and  completely  to  adjudicate  upon  and 
settle  the  questions  involved  in  the  action  be 
added.  (6) 

(465.)  The  non-joinder  of  a  person  who  ought  to  Addin": 
have  been  a  co-plaintiff  was  a  fatal  objection  at  plaintiff. 
Common  Law  when  the  action  was  on  a  contract, 
but  in  tort  an  objection  should  be  taken  by  plea  in 
abatement.  The  Com.  Law  Pro.  (Ire.)  Act,  1853, 
s.  84,  required  the  objection  to  be  taken  by  notice, 
and  allowed  it  to  be  cured  by  amendment.  Now  it 
would  seem  that  any  objection  of  this  nature  must 
be  made  by  application  to  add  the  plaintiff  under 
the  statutory  rule. 

Even  under  the  old  procedure  a  new  plaintiff  has 
been  added  on  the  eve  of  a  trial  where  the  Statute 
of  Limitations  would  have  barred  a  fresh  action. (c) 

Since  the  Judicature  Act,  1873,  where  a  nominal 
plaintiff  sueing  for  the  benefit  of  an  absent  party, 
the  defendant  was  baffled  in  his  effort  to  obtain  dis- 
covery of  papers  from  the  real  plaintiff,  a  foreigiier, 
not  therefore   amenable  to  the  Court,  the   Court 

(o)  Cox  V.  Barker,  L.  R.  3  Chan.  D.,  359,  Y.  C.  B. ;  affirmed  W.  N. 
1876,  231,  A.  C.     A  case  of  a  defendant  added. 

(6)  Sch.,  R.  19,  part  of;  Ord.  16  R.  13,  E. 

(c)  Brown  v.  FuUarton,  13  M.  &  W.  55G;  Carne  v.  Meilins,  6  Exch. 
803. 

r3 


S70  CONSENT  OF   PLAINTIFF. 

rartiex  io  Ordered  that  lie  should  be  made  a  co-plaintifF,  or 
— '  that  the  action  be  stayed. (a)  It  was  refused  where 
the  object  was  merely  to  have  further  security  for 
costs  of  an  action,  or  the  benefit  of  a  counter- 
claim.(6)  A  new  plaintiff  will  be  added  at  the  in- 
stance of  the  original  plaintiff,  only  where  there  has 
been  a  bond  jid.e  mistake  made  ;  and  where  a  party 
institute  a  suit  on  speculation  or  expectancy,  and 
when  met  by  a  demurrer  for  his  want  of  title,  sought 
to  cure  the  defect  by  joining  the  right  person  as 
plaintiff,  it  was  refused,  (c)  But  where  there  was 
a  mistake,  either  of  fact  or  law,  as  to  the  title  to 
sue,  and  the  right  happened  to  be  in  one  of  the  de- 
fendants, the  plaintiff  was  allowed  to  amend  by 
making  that  defendant  a  co-plaintiff,  reserving 
defendant's  right  to  costs.((/)  The  Court  refused 
to  st]-ike  out  the  name  of  a  plaintiff  trustee,  and 
substitute  the  infant  cedui  que  trusts,  on  an  ex  iKtrte 
application.(e) 
•Plaintiff  or  (466.)  No  pcrson  cau  be  added  as  a  plaintiff, 
not  added  suciug  witliout  a  ucxt  frieud,  or  as  the  next  friend  of 
consent.  a  plaintiff,  under  any  disability,  without  his  own  con- 
sent thereto.  (/)  Thus  a  plaintiff  was  not  permitted 
to  add  as  co-i^laintiff,  without  his  consent,  a  third 
i:)erson  alleged  to  be  interested  in  the  action  as  a  part 
owner,  and  in  order  that  he  should  become  partly 
liable  to  a  counter-claim  set  uj)  by  the  defendant. (f/) 

(rt)  Clai-ksoii  V.  British  and  Foreign  JMarine  Insurance  Comiiany, 
W.  N.  1876,  9  ;  20  Sol.  Jour.  177,  Quain  J. 

(6)  Peek  V.  Dear,  W.  N.  1876,  40;  20  Sol.  Jour.  26,  Lindley,  J. 

(c)  Clowes  V.  Hillard,  L.  R.  2  Ch.  D.,  413,  U.  R.;  and  see  New 
Wefitminster  Brewery  v.  Hannah,  W.  N.  1876,  15;  24  W.  R.,  899,  V. 
('.  II.  afiirmed  W.  N.  1877,  35 ;  21  Sol.  Jour.  278  A.  C. ;  Smith  v. 
Ilasdtine,  W.  N.  1875,250. 

(^0  Duckett  V.  Cover,  L.  R.  G  Chan.  D.  82  ;  25  W.  R.  455,  M.  R. 

(e)  Tildesley  v.  Harper,  L.  R.  3  Cli.  I).  277,  V.  C.  II. 

(./')  Sch.,  R.  19,  part  of. 

If))  Cormack  i-.  Grofrian,  W.  N.  1870,  22;  20  Sol.  Jour.  240,  Lind- 
ley, J. 


ADDITION    OF   DEFENDANT.  871 


Where  a  person  was  named  plaintiff  without  his  Parties  to 
consent,  it  was  as,  of  course,  to  strike  the  name  out  _ — ' 
of  the  record  on  his  application,  though  offered  an 
indemnity,(c)  but  if  he  were  a  trustee  for  the  other 
plaintifi'  in  ejectment,  it  might  be  otherwise.(tO 
Even  one  tenant  in  common  had  no  right  to  use 
the  name  of  his  co-tenant.(e) 

As  to  what  was  evidence  of  consent,  see  Perry  v. 
Moore.(/)  As  to  filing  consent  of  a  person  as  next 
friend  to  any  infant  or  married  woman,  see  Chan. 
(Ire.)  Act,  1867,  s.  G2 ;  Com.  Law.  Pro.  Act,  1853,  s. 
50.  •  The  application  to  strike  out  the  name  of  a 
plaintiff  introduced  on  the  record  without  his  con- 
sent, can  only  be  made  by  the  party  whose  name 
has  been  used.(r/) 

(4t)7.)  The  addition  of  a  defendant  has  been  Addition  of 
allowed  at  the  instance  of  the  plaintiff,  where  he 
was  ignorant  of  the  party  primarily  responsible, 
when  he  brought  his  action,  ex.  gr.,  in  libel, (/<-)  and 
.  in  an  action  for  non-performance  of  a  contract 
brought  against  a  principal,  but  made  by  a  third 
party  as  agent  acting  on  his  authority,  where  the 
defendant  denied  the  authority  of  the  agent,  the 
plaintiff  was  allowed  to  make  the  latter  person  a 
defendant,  and  seek  alternative  relief  against  each, 
i.e.,  against  one  on  the  contract,  and  against  the 
other  for  breach  of  warranty,  that  he  had  authority 
from  his  alleged  principal. (i)  So,  where  the  origi- 
nal claim  was  for  an  injunction  to  restrain  trespassers 

(c)  Bourke  v.  Murray,  10  Ir.  Com.  Law  R.  11,  Q.  B. 

((/)  Montgomery  v.  Montgomery,  6  Ir.  Com.  Law  R.  522,  Q.  B. ; 
Sullivan  v.  SuUivaa,  6  Ir.  Com.  Law  Rep.  523. 

(e)  Stubber  v.  Roe,  15  Ir.  Com.  Law  R.  506,  C.  P. 

(/;  Perry  v.  Moore,  Ir.  Rep.  7  C.  L.  99,  C.  P. 

{g)  Duckett  v.  Cover,  L.  R.  G  Chan.  D.  82  ;  25  W.  R.  554. 

Qi)  Edwards  v.  Lowther,  21  W.  R.  421 ;  20  Sol.  Jom-.  351,  C.  P.  D. 

(i)  Honduras  Oceanic  Railway  Company  v.  LeFevre,  L.  R.  2  Ex. 
D.  301 ;  25  \V.  R.  310, 


*S72  ADDITION    OF   DEFENDANT. 

Parties  to  OH  the  plaintiff 's  land,  and  defendant  relied  on  a 
"  1^'  right  of  way  acquired  from  a  third  person,  the  for- 
mer owner  of  the  lands,  and  under  whom  plaintiff 
derived,  the  plaintiff  was  permitted  to  make  him  a 
defendant,  and  pray,  as  alternative  relief,  compen- 
sation from  him. 

It  was  held  by  the  Court  of  Appeal  that  this 
was  proper,  although  the  alternative  reliefs  prayed 
were  inconsistant,  and  that  both  questions  should 
be  tried  by  the  same  jury,  for  if  plaintiff  be 
right,  he  was  entitled  to  succeed  against  one  or 
other  of  the  defendants  and  the  rule  was  intended 
to  avoid  the  risk  of  plaintiff  failing  in  two  separate 
actions  from  the  juries  taking  different  views  of  the 
same  evidence,  (a) 

The  joinder  of  a  new  defendant  at  the  instance  of 
the  plaintiff  was  refused  after  the  cause  had  been  in 
the  list  for  trial.  (6) 

Where  the  plaintiff  is  in  doubt  as  to  the  person 
from  whom  he  is  entitled  to  redress  he  may  join 
two  or  more  defendants,(c)  subject  of  course  to  the 
penalty  of  costs,{d)  and  one  or  more  of  several  per- 
sons jointly,  or  jointly  and  severally,  liable  on  a  con- 
tract, (e) 

As  to  adding  new  defendants  at  the  instance  of  a 
dejendant,  where  a  married  woman  was  sued  alone, 
she  was  allowed  to  claim  to  have  her  husband  or 
her  trustees  made  parties  defendants. (/) 

But  where  a  defendant  desired  to  have  a  third 
person,  who  claimed  title  adverse  to  the  plaintiff, 

(rt)  Child  V.  Stenning,  L.  K.,  5  Ch.  D.  304,  V.  C.  II.  s.  c;  reverst'd 
L.  R.,  5  Ch.  D.  095;  25  W.  R.  519  ;  21  Sol.  Jour.  297,  A.  C. 

(i)  Williams  V.  Andrews,  W.  N.,  1875,  237;  20  Sol,  Jour.  100, 
Quain,  J. 

(0  See  Ord.  xv.,  R.  6  infra  ;  Ord.  xvi.,  R.  G,  E. 

fil)  Marsh  v.  Dunlop,  21  Sol.  Jour.  75. 

(  )  Ord.  XV.,  R.  5  infra ;  Ord.  xvi.,  R.  5,  E 

(/■)  Ochse  V.  Redfern,  20  Sol.  Jour.  5G0,  Q.  B.  D. 


SERVICE   WITH  NOTICE.  oiS 

made  a  party  defendant,  it  was  refused, (a)  or  where   Parties  to 

.  „  ,     ,.  Articiii. 

the  object  was  to  compel  a  plain tm  to  sue  a  deien-  — 
dant  whose  liability  he  does  not  assert,  and  so  to 
shift  the  liability  from  the  party  he  has  made 
defendant, (/i)  and  where  a  third  party — a  company 
for  whom  the  defendant  alleged  he  was  acting  as 
a  trustee,  in  the  matter  of  the  action — sought 
to  be  made  a  defendant  in  order  that  it,  the 
company,  might  raise  a  counter-claim  against  the 
plaintiff  for  fraudulent  representations,  it  was  re- 
fused on  the  ground  that  it  was  not  intended  to 
admit  on  the  record  a  defendant  against  whom  the 
plaintiff  does  not  choose  to  prosecute  a  claim,  but 
whom  the  actual  defendant  wishes  to  add"  for  his 
own  convenience,  (i) 

(468.)  All  parties   whose   names   are   so   added  ^^",Y'^'' 
shall  be  served  with  a  summons  or  notice  in  the  notice. 
manner  prescribed  by  rules  or  by  any  special  order, 
and  the  proceedings  as  against  them  will  be  deemed 
to  have  begun  only  on  the  service  of  such  summons 
or  notice. (^) 

(469.)  The  Court  or  a  Judge  may  at  any  stage  of  Parties  may- 
the  proceedings  either  upon  or  without  the  appli-  out. 
cation  of  either  party  in  the  manner  prescribed  by 
the  rules  and  on  such  terms  as  may  appear  to  the 
Court  or  a  Judge  to  be  just,  order  that  the  name  or 
names  of  any  party  or  parties,  whether  as  plaintiffs 
or  as  defendants  improperly  joined  shall  be  struck 
out,(Z)      In  this  way  the  Court  has  power  now,  to  do 

(g)  Harvy  or  Harvey  v.  Davey,  L.  E.,  2  Ch.  D.  721,  24  W.  R. 
676,  V.  C.  B. 

(Ji)  See  Lereculey  v.  Harrison,  W.  N.,  1876,  39,  20  Sol.  Jour.  250, 
Lindley,  J.  See  Lovell  v.  HoUancl,  W.  X.,  1876,  53  20  Sol.  Jour.  27L», 
Archibald,  J.     Anon.  W.  N.,  1875,  200,  Lush,  J. 

{i)  Norris  v.  Beazley,  L.  R.  2  C.  P.  D.  80,  25  W.  R.  320. 

QS)  Sch.,  R.  19,  part  of,  see  Ord.  xv.,  R.  16  infva  ;  Ord.  xvi.,  R. 
13,  Ex. 

(0  Sch.,  R.  19,  part  of;   Ord.  16,  R.  13,  Ex. 


374  EEPRESEXTATIVE   OF   NUMEROUS   PARTIES. 

Parties  to   before  the  hearing  or  trial,  what  formerly  it  could 

■     only  do  at  the  hearing — to  strike  the  name  of  a 

defendant  out  of  the  record  on  his  own  application, 
whom  the  Court  might  think  not  a  proper  party  to 
it,  and  where  the  plaintiff  has  delivered  a  statement 
of  claim  to  him,  but  had  in  another  suit,  entered  into 
a  consent  oi'der  virtually  abandoning  his  claim 
against  the  same  defendant,  the  name  was  struck 
out  with  costs  from  the  date  of  the  consent 
order,  (a) 

Such  an  application  ought  to  be  made  as  early  as 
possible  after  it  appears  that  it  is  needless  or  im- 
proper that  the  defendant  should  be  a  ])arty.(6) 

Numerous        (470.)  Where  there  are  numerous  parties  having 

parties.  ^  '  _  ^  ^ 

the  same  interest  in  one  action  one  or  more  of  such 
parties  may  sue  or  be  sued,  or  may  be  authorized 
by  the  Court  to  defend  in  such  action  on  behalf  or 
for  the  benefit  of  all  parties  so  interested,  (c) 

In  a  creditoi''s  action  for  administration  of  real  and 
personal  estate,  or  either,  it  would  rather  seem  that 
the  writ  of  summons  should  expressly  state  that  he 
sues  on  behalf  of  himself  and  all  other  the  creditors 
for  the  inquiry  must  go  for  all  debts  generally.  (<:/) 

Where(e)  one  person  sued  on  behalf  of  a  number 
joint-owners  of  a  ship  against  a  charterer,  it  was 
sought  that  the  others  should  be  made  co-plaintiffs 
merely  to  give  the  defendant  better  security  for  his 
costs,  it  was  refused  as  an  attempt  to  return  to  the 

(a)  Vallance  v.  Birmingham  and  Midland  Laud  Company,  L.  R.  2 
Ch.  D.  369,  2i  W.  R.  454,  V.  C.  M. 

(b)  Ihid. 

(c)  Sch.,  R.  20;  Ord.  IG,  R.  9,  Ex. 

(cO  Cooper  v.  Blissett,  L.  R.  1  Ch.  D.  691,  24  W.  R.  235,  V.  C.  H. 
Eyre  v.  Cox,  24  W.  R.  317,  20  Sol.  Jour.  311,  M.  R.  Worraker  v. 
Pryer,  L.  R.  2  Ch.  D.  109,  24  W.  R.  269.  Adcock  r.  Peters,  W.  N., 
1876,  139,  Y.  C.  M.  Fryer  v.  Royle,  L.  R.,  5  Ch.  D.  540,  25  W.  R. 
528,  21  Sol.  Joui-.  499,  V.  C.  B. 

(0  De  Fait  v.  Stevenson,  L.  R.  1  Q.  B.  D.  313,  24  W.  R.  367,  20 
Sol.  Jour.  332. 


STATEMENT   OF   CLAIM,   WHEN   EEQUIRED.  oto 

old  system  of  pleading  in  abatement,  although  had  ^^f^J^ 
the  plaintiff  been  a  man  of  straw  put  up  by  others      — 
to  fight  their  battle  it   would   be  ground  for  an 
application  for  security  for  costs. 


CHAPTER  LI. 
Pleadings. 

471.  Statement  of  Claim  wlien  required,  p.  375. 

472.  Default  of,  375. 

473.  Statement  of  Defence,  37G. 

474.  Default  of,  376. 

475.  Set-otfand  countpr-claim,  376. 

476.  Time  to  reply,  377 

477.  Reply  to  set-off,  377. 

478.  Default  of,  377. 

479.  No  pleading  after  reply  -without  leave,  377. 

480.  Close  of  Pleadings,  377. 

481.  Application  to  settle  issues,  377. 

482.  Demurrer,  when  to  be  tiled,  377. 

483.  Special  cases,  378. 

484.  Forms  of  Pleadings,  378. 

485.  Printing  Pleading,  378. 

486.  Signature  of  Counsel,  378. 


(471.)  After  an  appearance,  unless  the  defendant  statement 

,.  ,,!,•  f  ^  •  xj.of  claim, 

m  the  action  at  the  time  ot  his  appearance  states  when 
that  he  does  not  require  a  statement  of  complaint,  ^^<=^s^'*''5'- 
the  plaintiff  is  bound  to  deliver  one,  and  a  statement 
of  the  relief  or  remedy  to  which  he  claims  to  be 
entitled,  (a) 

The  plaintiff  may  if  he  pleases,  at  any  time  after 
issue  of  the  writ  of  summons,  deliver  a  statement  of 
claim  at  the  risk  of  being  ordered  to  abide  the  costs 
of  it  if  deemed  unnecessary. (6) 

The  statement  of  claim  after  an  appearance, 
should  be  delivered  within  six  weeks  from  the 
appearance.  (6) 

(472.)  If  the  plaintiff  being  bound  to  deliver  a  Default  of 

statement. 

(«)  Sch.  R.  21,  part  of;  Ord.  19  E.  2,  E. 
Qj)  Ord.  XX.,  R.  1,  infra  ;  Ord.  21,  R.  1,  E. 


376 


STATEMENT   OF   DEFENCE. 


Pleadings. 


Pttxtement 
of  defence. 


Default  of 
defence. 


Defence, 
SL-t-oflT,  and 
ciiunter- 
claim. 


statement  of  claim  does  not  do  so  within  the  time 
allowed,  defendant  may  apply  to  dismiss  his  action 
with  costs  for  want  of  prosecution,  (c) 

(473.)  No  statement  of  defence  is  required  where 
there  has  been  no  statement  of  claim  or  notice 
equivalent. ((?-)  But  where  a  statement  of  claim  has 
been  delivered  the  defendant  is  bound,  unless  he  in- 
tends to  let  judgment  go  by  default,  to  deliver  a 
defence  within  fourteen  days  in  actions  assigned  to 
the  Chancery  Division,  and  eight  days  in  actions 
assigned  to  a  Common  Law  Division,  from  the  de- 
livery of  the  claim  or  from  the  time  for  appearance 
whichever  be  last.(e)  A  defendant,  however,  may 
deliver  a  defence,  although  no  claim  has  been  filed 
and  though  he  has  dispensed  with  it,  and  this  within 
eight  days  after  appearance.  (/)  He  is  not  bound  to 
do  so,  nor  can  judgment  be  entered  as  by  default  if 
he  does  not. 

(474.)  If  defendant  being  under  obligation  to 
deliver  a  defence  fails  to  do  so  within  the  prescribed 
time,  plaintifFmay  sign  judgment  as  by  default  where 
the  action  is  assigned  to  a  Common  Law  Division, (r/) 
and  when  for  a  claim  assigned  by  the  Statute 
to  the  Chancery  Division  he  may  set  down  the 
action  on  motion  for  judgment. (A) 

(475.)  The  defendant  may  wathin  the  time  for 
delivering  a  defence,  deliver  a  statement  of  his 
defence  by  way  of  set-off  or  counter-claim  against 
the  claim  of  the  plaintiff,  whether  such  set-off  or 
counter-claim  sound  in  damages  or  not,(i)  and  to 

(c)  Ord.  xxviii.,  K.  l.iufra;  Ord.  21),  K.  1,  E. 
((0  Hooper  V.  Giles,  W.  N.  1876,  10;  20  Sol.  Jour.  217. 
(e)  Ord.  xxi.,  R.  1,  infra;  Ord.  22,  K.  1., 
(/)  Ord.  xxi.,  R.  2,  infra. 

ig)  Ord.  xxviii.,  R.  2  to  R.  8,  infra;  Ord.  20,  P..  2  to  R.  9,  E. 
(A)  lb.  R.  10,  injru  ;  and  R.  10,  E. 

(i)  Sch.,  R.  22,  &.  Ord.  xviii.,  R.  4;  &  Ord.  xxi.,  R.  5,  infra  ;  Ord. 
19  R.  3,  E. ;  see  chap,  xxiii.,  ante.,  p.  I'JO. 


TIME   FOR  REPLY — PRINTING  PLEADINGS.  377 

this   the  pLaintiff  may  in  like  manner  deliver  a  Headings. 
statement  in  reply,  (a) 

(476.)  The  plaintiff  should  deliver  his  reply,  if  any,  Time  for 
to  a  defence,  set-off,  or  counter-claim,  within  three  '"'"^  \y^ 
weeks  after  the  defence  or  the  last  of  the  defences 
set-off,  or  counter-claim,  has  been  delivered,  unless 
the  time  is  extended  by  the  Court  or  Juclge.(6) 

(477.)  If  the  plaintiff  do  not  deliver  a  reply  or  Default  of 
demurrer  to  the  defence  within  the  time  allowed 
for  the  purpose,  he  will  be  deemed  to  have  admitted 
the  statement  of  facts  in  the  defence,  and  the  plead- 
ings will  be  deemed  to  be  closed,  (c) 

(478.)  No  pleading  subsequent  to  the  reply  (other  No  pieixi- 
than  a  joinder  of  issue)  can  be  pleaded  without  reply. 
leave  of  the  court. (c?) 

(479.')  As  soon  as  either  party  has  joined  issue  Close  of 

*•  .  '      1.         •         1       pleadings. 

upon  any  pleading  of  the  opposite  party  smiply, 
without  adding  any  further  pleading  thereto,  the 
pleadings  as  between  such  parties  shall  be  deemed 
to  be  closed.(e) 

(480.)  Every  pleading  in  the  Chancery  Division  Printing 
exceeding  ten  folios  of  seventy-two    words,  each  ^ '^^""^'" 
figure  being  counted  as  a  word,  must  be  printed  ; 
when  under  ten  folios  it  may  either  be  printed  or 
written  partly  or  v/holly.     In  the  other  divisions  it 
is  optional  to  use  printing  or  writing.(/) 

(4S1.)  The  signature  of  counsel  is  not  necessary  signature 

.  1  T  /     N  of  COUUSfl. 

now  to  any  pleading.  ((/; 

(482.)  The  practice  as  to   serving  and   settling  Appiica- 
issues  under  the  Common  Law  Procedure  Act,  1853,  j,\°,ge*^j, 
s.  102,  is  abolished.     But  if  any  party  considers  it  ^^^^^ 
expedient  from  the  state  of  the  pleadings  to  have 

(rt)  Sch.,  R.  21,  post. 

(6)  See  Ord.  xxiii.,  R.  1,  infra;  Ord  24  R.  1,  E.      V-^ 

(c)  Ord.  xxviii.,  R.  12,  infra ;  Ord.  29  R.  12,  E. 

(d)  Ord.  xxiii.,  R.  2,  infra  ;  Ord.  24,  R.  2,  E. 

(e)  Ord.  xxiv.,  infra ;  Ord.  25  E.         (/)  Ord.  xviii.,  R.  2,  infra, 
(c,)  Sch.,  R.  23,  part  of;  Ord.  19  R.  4,  E. 


;378 


DEMURRER,   WHEN   TO   BE   DELIVERED. 


Special 
cases. 


Forms  of 
ijleadings 


riemUngs.  issues  Settled  he  may  apply  to  a  judge  in  chamber 

for  the  purpose,  (g') 
Demurrer,        (483.)  A  demurrer  should   be  delivered  in  the 

ivhen  to  be         ^  ' 

leiivered.  same  manner  and  within  the  same  time  as  any 
other  pleading  in  the  action,  i.e.,  within  eight  days 
after  statement  of  claim,  three  weeks  after  defence, 
and  four  days  after  reply  on  subsequent  pleading. (7') 

(iS^.)  The  parties  may,  after  the  writ  of  summons 
has  been  issued,  concur  in  stating  the  questions  of 
law  arising  in  the  action  in  the  form  of  a  special 
case  for  the  opinion  of  the  court. (s) 

(485.)  The  forms  of  pleadings  referred  to  in  the 
statutory  rules,  are  the  forms  prescribed  by  the 
Supreme  Court  of  Judicature  Act,  1875. (^) 

These  forms  are  reproduced  it  is  presumed  for  the 
sake  of  convenience  in  the  schedules  attached  to  our 
Orders  of  ISth  December,  1877,  and  are  copied  for 
the  most  part  with  literal  accuracy,(it)  and  omit- 
ting such  only  as  relate  to  admiralty  or  probate  pro- 
cedure. 

The  forms  given  in  the  appendix  are  not  made 
obligatory,  nor  even  are  they  authenticated  by  auy 
formal  declaration,  but  doubtless  are  to  be  consi- 
dered as  recommended  for  use,  by  the  fact  of  their 
being  referred  to  by  the  Judicature  Act,  1877,  and 
being  annexed  as  they  are  to  our  Orders.  Some  of 
them  have  been  challenged  as  being  erroneous,  but 
with  no  great  success  so  far.(t') 


(<?)  Ord.  Kxv.,  infra,  see  Ord.  26  E. 

(r)  Ord.  xxvii.,  R.  3,  infra,  Ord.  28,  R.  3,  E. 

(s)  Sch.,  K.  31,  and  Ord.  xxxiv.,  injra  Ord.  34,  R.  1,  E. 

(/)  Sch.,  R.  37. 

(m)  See  Appendix  C,  Form  No.  2,  par.  2,  line  3,  wnrd  "into" 
omitted  in  both  Schedules. 

(i;)  See  Earp  i'.  Ilcnder-jon,  siqira.,  and  Hall  v.  Eve,  L.  11.,  4  Ch.  D. 
321;  25  W.  R.  177. 


[     379     ] 

CHAPTER  LII. 

New  Rules  of  Pleading. 

486.  New  Pailes  substituted  for  Old,  p.  379. 

487.  Material  Facts  and  not  Evidence,  381. 

4S8.  Statement  of  Claim  should  not  anticipate  Defence,  384. 

489.  Pleading  Admissions,  385. 

490.  Inferences  of  Law,  386. 

491.  Pleadings  to  be   Brief,  386. 

492.  Paragi-aphs  Numbered,  387. 

493.  Statement  of  Claim  to  State  Relief,  387. 

494.  General  Denial  not  Permitted,  388. 

495.  Payment  into  Court  Pleaded,  388, 

496.  Settling  Issues,  388. 

497.  Amendment  of  Pleading,  389. 


(486.)  The  rules  included  in  order  xxviii.  infra  in  New  rules 

N  '  _  of  pleading 

addition  to  those  contained  in  the  schedule  to  the  substituted 

,       .  T  /•         1  1  •   1  ,  for  former 

statute  have  been  substituted  lor  those  hitherto  used  rules, 
in  the  High  Court  of  Chancery  and  in  the  three 
Common  Law  Courts  in  Ireland.(«) 

It  would  therefore  seem  that  all  rules  of  pleading 
heretofore  used  in  Courts  of  Equity,  or  in  Courts  of 
Common  Law,  on  the  same  subject,  are  swept  away, 
and  in  their  stead  are  given  a  few  elementary  rules 
leaving  the  ground  practically  clear  for  the  pleader 
of  the  future  to  create  a  new  system  of  pleading. 

The  object  of  pleadings  under  the  new  system  (as 
expressed  by  Sir  George  Jessel,  M.R.)  (6)  is  to  bring 
the  parties  to  an  issue,  and  the  meaning  of  the  rules 
in  Order  xix.  (English),  (c)  is  that  the  issue  be  not 
enlarged  so  as  to  prevent  either  party  from  knowing 
what  the  real  point  to  be  decided  is,  and  by  nar- 
rowing the  issue,  to  diminish  expense  and  delay,  es- 
pecially as  regards  the  amount  of  testimony  required 
on  either  side  at  the  hearing.  As  sketched  by  the 
statutory  rules,  it  would  seem  to  be  something  in- 

(«)  See  Ord.  xviii.,  R.  1,  Ord.  19,  R.  1,  E. 

(i)  Thorp  V.  Holdsworth,  L.  R.  3  Chan.  D.,  at  p.  G39. 

(c)  Order  19,  English,  corresponding  to  Order  xviii.,  infra. 


380  NEW   RULES   SUBSTITUTED    FOR   OLD. 

Neio  Rules  termecliate  between  tlie  full  particularity  of  equity 
_!fL*"^*  pleading,  and  the  vague  generality  of  Common  Law 
pleading.  To  require  eacli  party  respectively  to  set 
forth  all  material  facts  on  which  he  has  occasion  to 
rely  and  to  state  these  facts  clearly  and  concisely 
would  seem  to  be  the  aim  of  the  Judicature  Act. 

Thus  a  statement  of  claim  should  give  the  defen- 
dant sufficient  information  of  the  real  nature  of  the 
complaint  and  be  something  more  specific  than  the 
usual  form  of  a  common  law  pleading. 

For  example,  a  claim  for  damages  against  an  agent 
employed  by  the  plaintiff  to  dispose  of  certain  shares 
must  tell  something  more  than  that  defendant  had 
given  a  false  account  of  the  shares,  and  had  so 
fraudulently  conducted  himself  towards  the  plaintifi 
that  the  shares  became  of  no  value  to  him.  Here, 
fraud  being  the  ground  of  relief  and  being  a  com- 
plex thing,  it  would  hardly  be  fair  to  call  upon  the 
defendant  to  answer  the  charge  without  more  specific 
information.  (cZ) 

Nevertheless  old  forms  of  pleading,  although  no 
longer  obligatory  or  universally  applicable  may  still 
in  certain  cases  be  allowable  and  useful  as  models, 
especially  those  of  the  simple  type,  of  money  had 
and  received  by  the  defendant  to  the  use  of  the 
plaintiff,  and  such  a  statement  may  be  sufficient 
where  the  only  material  fjicts  are  that  defendant 
did  receive  the  money  and  that  he  received  it  for 
])laintiff's  use,  and  it  would  be  unnecessary  and 
improper  to  set  out  the  circumstances  under  which 
the  defendant  did  receive  the  money,  or  when, 
Avhere,  and  under  what  circumstances  a  particular 
account  was  stated  between  the  plaintiff'  and  de- 
fendant, (e) 

(^0  Barron  v.  Cooke,  W.  N.  1875  ;  220,  Lush,  J. 
00  SeeBartlett   v.   Roche,   W.   N.  187G,  54   Archibald,  J.,  and  as 
to  pleas,  see  liai'uicott  v,  Hann,  W.  N.  187G,  24  ;  20  Sol.  Jour.  242.  • 


MATERIAL   FACTS  AND   NOT  EVIDENCE.  381 

(487.)  Every  pleading;  (in  which  term  is  included  Neio  Rvies 

V  /  -J    \-  ..„-,-..  1  J  of  Pleading. 

every  statement  m  writmgf  of  the  claun  or  demand      — 

Material 

of  the  plaintiif  and  of  the  defence  of  any  defendant  facts  and 
thereto  and  of  the  reply  of  the  plaintiff  to  any  ""fcience. 
counterclaim  of  the  defendant,  as  also  every  petition 
or  summons)(/)  is  required  to  contain,  as  concisely 
as  may  be,  a  statement  of  the  material  facts  on 
which  the  party  pleading  relies,  but  not  the  evidence 
by  which  they  are  proved. ((/)  This  varies  but 
slightly  from  the  direction  as  to  bills  of  complaint 
in  Chancery,  and  only  so  far  that  the  latter  required 
a  "  narrative  "  instead  of  a  "  statement "  and  the 
sul^ject  of  the  narrative  included  besides  the  material 
facts  also  "  matters  and  circumstances  "  upon  which 
the  plaintiff  relies. (/i)  In  Chancery  pleading  every 
fact  which  it  was  intended  to  prove  should  be  stated 
in  the  pleading,  and  as  to  the  evidence  by  which 
the  party  intended  to  establish  the  fact  it  was  not 
necessary  to  state  it  except  for  the  purpose  of  pro- 
curing admissions,  (i)  The  Common  Law  Procedure 
Act  required  a  plaintiff  to  set  out  such  material 
facts  as  grounded  or  supported  the  cause  of  action 
or  defence  as  distinguished  from  details  of  circum- 
stances which  precede,  surround,  or  follow  it,  and 
which  were  mostly  immaterial  in  statement  how- 
ever useful  in  evidence.(/t') 

It  was  an  ancient  rule  of  common  law  pleading 
that  evidence  of  material  facts  should  not  be  pleaded 
but  only  the  matter  of  fact  itself.(^)  And  under 
the   Judicature    Act   in    England,   paragi-aphs   in 

(/)  J.  A.  1877,  s.  3. 

Ig)  Sch.  E.  22,  part  of  Ord.  xix.,  R.  4,  E. 

(A)  Chan.  (Ire.)  Act,  1867,  s.  61. 

(0  See  Mansell  v.  Feeny,  2  John  &  H.  at  p.  313,  Sir  W.  Page 
Wood,  V.C. 

Qc)  See  in  iibel  C.  L.  Pro.  Act,  1853,  s.  65. 

(0  Dowman's  case,  9  Rep.  9  b.  Stephen  on  Pleading  388,  and  see 
Segrave  v.  Barber,  5  Ir.  Com.  Law  Rep.  67. 


382  MATERIAL    FACTS   AND   NOT   EVIDENCE. 

xew  Rules  pleacUngs  infringing   this   rule   have   been   struck 

"-^^^"■"^•out.(7r0" 

Thus  in  an  action  for  malicious  prosecution  a 
statement  of  claim  was  ordered  to  be  amended, 
because,  instead  of  stating  as  a  matter  of  fact  that 
there  was  reasonable  or  probable  cause,  it  set  forth 
a  narrative  of  the  res  gestce  affording  evidence  of  an 
absence  of  reasonable  cause.(//) 

Although  the  rules  of  pleading  are  to  be  the 
same  in  all  divisions  of  the  High  Court,  yet  it  is 
manifest  that  their  application  must  be  somewhat 
different  when  dealing  on  the  one  hand  with  the 
more  complex  questions  which  usually  form  the 
occasion  for  Chancery  actions,  and  on  the  other  hand 
the  more  plain  and  simple  controversies  which  com- 
mon law  actions  generally  raise.  No  one  inflexible 
rule  or  style  of  pleading  can  be  adapted  to  every 
action  and  to  every  defence.  Some  Chancery  actions 
may  be  as  plain  and  simple  as  an  action  of  debt  on  a 
bond  and  require  a  statement  as  simple,  and  some 
Common  Law  actions  and  defences  may  require 
treatment  as  full  as  an  equity  pleading.  The  cir- 
cumstances of  each  individual  case  must  more  or 
less  determine  and  justify  the  character  of  the  state- 
ment. Thus  an  action  for  an  account  may  be 
founded  on  particular  circumstances  and  arise  out 
of  a  lono-  series  of  dealings  and  transactions  with 
various  parties,  and  the  statement  of  claim  may 
properly  set  forth  a  series  of  letters  or  other  docu- 
ments in  detail  which  the  Court  may  be  unwilling 
to  strike  out.(o)  So  a  defence  in  a  Common  Law 
action  on  equitable  grounds  may  arise  out  of  a 
number  of  circumstances  which  taken  together  may 
be   sufficient    to   avoid    the    contract   sued   u]ion, 

(;«)  Anon.  20  Sol.  Jour.  102,  Quaiu,  J. 

(h)  Aderis».  Thriglcy.W.  N.187G;  oG,20  Sol.  Jour.282,  Arcliibald,  J. 

(o)  Davy  Bros.  v.  Garrett,  2G  W.  R.  110,  W.  N.  1877,  2G2,V.  C.  11. 


STATEMENTS   OF   CLAIM.  388 

although  one  or  more  of  thera  taken  singly  would  ^^ew  Rules 
not  have  that  effect  and  this  may  require  the  — 
pleader  to  set  forth  in  more  or  less  of  detail  the  facts 
on  "which  he  relies  according  to  the  practice  of  the 
Court  of  Chancery,  and  it  would  be  both  unfair 
and  unreasonable  to  require  the  defence  simply  to 
allege  that  the  contract  sued  on  was  obtained  by 
the  duress  and  undue  influence  of  the  plaintiff.  On 
a  case  of  this  nature  coming  before  a  Common  Law 
Division,  Mr.  J.  Field  stated,  that  the  inteotion  of 
the  Legislature  in  introducing  this  new  practice 
and  procedure  was  to  follow  as  guides  the  practice 
and  procedure  previously  existing  in  the  Court  of 
Chancery,  and  that  this  is  a  matter  not  to  be  for- 
gotten in  construing  the  Judicature  Act ;  and  a 
reference  to  the  forms  given,  Appendix  C,  shows 
that  it  was  intended  to  supersede  the  forms  of 
pleading  existing  at  common  law,  and  that  an 
equitable  defence  may  be  pleaded  as  an  answer  to  a 
bill  in  Chancery  used  to  be.  It  may  be  somewhat 
prolix  and  not  quite  so  convenient  at  a  trial  with  a 
jury,  but  it  is  useful,  and  even  with  a  jury  would 
not  prejudice  the  fair  trial  of  the  action.(|7) 

In  one  case  V.  C.  Malins  is  reported  to  have 
carried  this  idea  somewhat  further,  and  to  say 
generally  that  where  allegations  of  fact  are  such  as 
would  not  have  been  improper  in  an  old  pleading 
in  Chancery,  the  Court,  i.e.,  the  Chancery  Division, 
would  now  decline  to  treat  them  as  improper  on 
motion,(g)  but  in  the  Court  of  Appeal  the  Lords 
Justices  (Mellish  and  Baggally)  both  dissented  from 
this  view,  especially  from  the  proposition  that  the 
charging  part  of  a  bill  which  gave  merely  the 
statement  of  the  pleader's  views  of  the  equities  of 
•the  case,  or  of  matters  of  evidence  would  be  now 

(p)  Heap  •;.  Marris   L.  R.  2,  Q.  B.  D.  680. 

Oy)  Watson  V.  Rodwell,  W.  N.  1876,  Vid.  Y.  C.  M. 


384;  STATEMENTS   OF   CLAIM. 

x<w  Rules  admissible.    Facts  and  not  evidence  are  to  be  pleaded, 
^^uig.  ^^^  charges  which  amount  merely  to  a  statement  of 
the  pleader's  views  of  the  equity  of  the  case  are  to  be 
omitted  ;  on  the  other  hand,  pleadings  ought  to  give 
a  clear  statement  of  facts  on  which  the  party  relies, 
in  contradistinction  to  the  old  system  of  pleading. (-)') 
statements       (488.)  Again,  it  is  no  part  of  the  statement  of 
should  not   claim  to  anticipate  the  defence  or  to  state  what 
tue^defence  plaintiff  may  have  to  say  in  reply  to  it.     In  one 
"'•reply-      case,    where   a    statement    in    reply    denied    the 
truth  of  the  statement  made  in  the  defence,  and 
then  pleaded  that  even  if  true  the  plaintiff  was 
entitled   to   relief  on   various    equitable    grounds 
which  might  have  appeared   in  the  statement  of 
claim,   Yice-Chancellor   Bacon  ordered   the   state- 
ment in  reply  to  be  set  aside  with  liberty  to  amend 
the  original  claim, (s)  but  the  Court  of  Appeal  re- 
versed this  decision,  holding  that  instead  of  antici- 
pating defences  and  answering  them  beforehand,  as 
a  bill  in  Chancery  might  have  done,  the  proper 
course  was  for  plaintiff  to  state  his  own  case,  and  if 
he  wished  to  confess  and  avoid  the  defence,  to  reply 
specially  in  forms  like  those  given  in  Appendix  C 
to  the  Orders. 

As  Mr.  Justice  Twisden  said  of  old,  a  party 
.should  not  leap  before  he  comes  to  the  stile.  Those 
who  framed  the  rules  intended  the  pleadings  to  go 
as  far  as  the  replication,  and  it  was  a  mischievous 
practice  to  anticipate  the  defence  because  the  plain- 
tiff could  not  tell  what  defence  will  be  raised,  and 
so  he  would  bo  bound  to  anticipate  all  the  possible 
defences  that  could  be  raised  which  must  lead  to 
great  length  of  pleadings. (^) 

((•)  Watson  V.  Roihvcll,  24  W.  R.  1,000 ;  20  Sol.  Jour.  7.<2  A.  C. 
(s)  Hall  V.  Eve,  W.  Is.  1S7G,  282  V.  C.  V. 

(0  S.  C.  L.  R.,  4  Chan.  3-ij  ;  25  W.  R.  177;  21    Sol.  Jour.   148; 
Bramwell,  J.  A.,  A.  C. 


PLEADING  ADMISSIONS.  385 

(489.)  To    set    forth    statements    of    what    the  Ay^o  Rules 
opposite  party  told  the  party  pleading  or  admitted      — 
to  him,  or  to  his  solicitor,  has  been  deemed  open  to  admi^ssiMis. 
the  objection  of  pleading  evidence. (w)     Even  letters 
written  by  parties  were  not  properly  pleaded  at 
law  and  might  be  proved  and  used  in  equity  as 
evidence  of  facts,    such    as   notice    of  fraudulent 
purpose   without   being   directly   put   in  issue  in 
pleadings. 

But  when  intended  to  be  used  as  admissions  or 
confessions  of  facts,  the  rule  in  equity  used  to  require 
them  to  be  put  in  issue  by  the  pleading  to  enable 
the  opposite  party  to  explain  them.(v) 

The  rule  was  latterly  less  strictly  stated  by  Lord 
Cottenham,(i(;)  to  extend  only  so  far,  that  if  the 
other  side  be  taken  by  surprise  by  the  letters  not 
being  stated  in  pleading,  it  might  afford  ground  for 
giving  them  further  opportunity  to  explain,  (a;) 

The  opportunities  now  open  for  oral  examination 
would  seem  in  most  cases  to  remove  all  reason  for 
diversity  of  practice  in  regard  to  pleading  admis^ 
sions. 

There  are  certain  cases  in  which  facts  and  evi- 
dence are  so  mixed  up  that  they  are  almost  undis- 
tinguishable,  as  for  example,  where  defendant 
pleaded  that  a  guarantee  was  given  to  the  plaintiff 
in  consideration  of  his  undertaking,  to  make  certain 
advances  which  he  had  failed  to  do,  in  such  a  case 
it  would  not  be  a  violation  of  the  rule  as  to  not 
jDleading  evidence  to  set  forth  whether  the  under- 
taking was  verbal  or  in  writing,  when  made  and 

(u)  Jones  V.  Turner,  W.  N.  1875,  239;  20  Sol  Jour.  121 ;  Askew  y. 
North  Eastern  Railway  Company,  W.N.  1875,  238;  20  Sol.  Jour. 
120. 

(y)  Austen  v.  Chambers,  6  CI.  &  Fin.  33. 

(w)  M'Mahon  v.  Burchell,  2  Ph.  127. 

(a;)  See  Crosbie  v.  Thompson,  11  Ir.  Eq.  Rep.  400,  L.  C. 

S 


8SG  INFERENCES   OF   LAW. 

yeic  nuies  between  what  parties  ;(y)  and  in  a  recent  case  a 

series  of  letters  being  set   forth    as    containing   a 

contract  to  take  a  honse,  the  Judge  refused  to  strike 
them  out.(0) 
Inferences  (490.)  Though  a  pleading  should  contain  all  such 
allegations  as  are  necessary  to  establish  the  legal 
rights  of  the  party,  it  need  not  state  specifically 
what  form  those  legal  rights  assume ;  that  is  an 
inference  of  law  to  be  drawn  by  the  Court  from  the 
facts  averred  on  either  side.  For  example,  where 
plaintiff  claims  certain  sums  of  money  by  way  of 
rent  he  is  not  required  in  his  pleading  to  disclose  in 
what  precise  form  of  action  he  wishes  to  recover 
the  amount  whether  as  for  use  and  occupation  or 
under  a  covenant,  (a) 

So,  if  on  the  statement  of  a  claim,  a  cause  of 
action  appears,  it  is  not  essential  that  it  should  he 
stated  in  any  particular  legal  form,  ex.  gr.,  where  it 
relies  on  the  liability  of  a  vendor  remaining  in 
possession  after  the  day  fixed  for  completion  of  the 
contract  to  make  compensation,  it  need  not  set  it 
forth  as  for  use  and  occupation  of  the  premises.(6) 

As  to  inferences  of  fact,  under  the  Com.  Law  Pro. 

Act,  1853  s.  G3,  a  plaintiff  might  set  forth  the  words 

actually  spoken  or  written,  and  state  as  a  matter  of 

fjict  they  were  used  in  a  defamatory  sense,  without 

any  prefatory  averment  (or  inducement)  to  show 

how  they  were  used. 

■pieadinETs         (491.)  All  statements  of  claim,  defence,  &c.,  shall 

co^tsnf   *  ^^^  ^^  brief  as  the  nature  of  the  case  will  admit, 

prolixity,     ^t^^^  the  Court  in  adjusting  the  costs  of  the  action  is 

{y)  Smith  V.  West,  W.  N.  1876,  55 ;  20  Sol.  Jour.,  28  Archibald,  J. ; 
and  see  Hope  v.  Banks,  W.  N.  187G,  38  Lindley,  J. 

(«)  Ibid. 

(«)  Lord  Ilanmer  v.  Flight,  24  W.  K.  34G,  W.  N.  1876,  54 ;  20 
Sol.  .Tour.  280,  C.  P.  D. 

(//)  Metropolitan  Kailway  Corapany  t'.  Dcfries,  L.  R.,  2  Q.  B.  D. 
387 ;  25  W.  R.  271  A.  C. 


paragRx^lPhs  to  be  numbered.  387 

bound  to  inquire  at  the  instance  of  any  party  into  i^'ew  livies 

T      ■,  1  -I  n  I       of  P/eridiiiO. 

any   unnecessaiy   prolixity,    and    order   the    costs       

occasioned  by  sucli  prolixity  to  be  borne  by  the 
party  chargeable  with  same.((:Z) 

Conciseness,  it  has  been  said,  is  the  very  soul  of 
the  new  rules  of  pleading,  and  that  all  that  is  re- 
quired in  most  cases  is  to  notify  simply  the  ground 
of  the  complaint  or  defence,(e)  and  where  a  plead- 
ing sets  forth  matters  with  unnecessary  prolixity 
the  offending  paragraphs  may  be  struck  out  with 
leave  to  substitute  a  more  condensed  statement.(_/) 

(492.)  Every  statement,  whether  of  claim,  counter-  Paragraphs 
claim,  defence  or  reply,  should  be  divided  into  para-  iTumbered. 
graphs  numbered  consecutively,  and  each  paragraph 
should  contain  as  near  as  may  be  a  separate  allega- 
tion.    Dates,  sums,  and  numbers  are  to  be  expressed 
in  figures  and  not  in  words.  ((/) 

The  34  Gen.  Ord.  of  1854  at  Common  Law  as  to 
each  cause  of  action  and  further  plea  and  the  Chan. 
(Ire.)  Act,  1867,  s.  61,  contained  similar  provi- 
sions, (/i) 

(493.)   Every   statement   of  claim   should   state  statement 
specifically   the    relief  which   the  plaintiff  clain.s,  sfaSiS. 
either  simply  or  in  the  alternative,  and  may  also 
ask  for  general  relief.      The  same  rule  applies  to  a 
counterclaim  made  or  relief  claimed  by  a  defendant 
in  his  defence,  (i) 

If  the  plaintiff's  claim  is  for  discovery  only  the 
statement  of  claim  should  show  it.(/:) 

(O  Sch.  R.  21,  part  of,  Ord.  19,  R.  1.  E.  ;  see  Chan.  (Ire.)  Act, 
1867,  s.  70,  147,  G.  0.,  1867  (Chan.) 

(e)  Aske^nr  v.  North  Eastern  Railway  Company,  W.  N.,  1875,  238; 
20  Sol.  Jour.  120,  per  Quain,  J. 

(/)  See  Marsh  v.  Mayor  of  Pontefract,  W.  N.,  1876,  7 ;  20  Sol. 
Jour.  161,  Huddleston,  B. 

(g)  Sch.  R.  23,  part  of  Ord.  19,  R.  4,  E. 

(Ji)  See  Redmond  v.  Butler,  4  Ir.  Com.  Law  Rep.  287;  7  Jr.  Jur. 
391 ;  M'AnuIty  v.  Nanties.  13  Ir.  Com.  Law  Rep.,  391  App.  40  Ex. 

(i)  Sch.  R.  24,  Ord.  19,  R.  8  E.  (/(■)  lb. 

s  2 


S88 


GENERAL  DENIAL  NOT  PERMITTED. 


Now  Rules 
of  Pleading. 

General 
denial  not 
permitted. 


Payment 
into  court 
pleaded. 


Settlement 
of  issues. 


(494.)  It  will  not  be  sufBcieut  for  a  defendant 
[unless  in  some  cases  otherwise  specially  provided 
for]  in  his  defence  to  deny  generally  the  facts 
alleged  by  the  statement  of  claim  or  for  a  plaintiff 
in  his  reply  to  deny  generally  the  facts  alleged  in  a 
defence  by  way  of  counterclaim,  but  each  party, 
must  deal  specifically  with  each  allegation  of  fact 
of  which  he  does  not  admit  the  truth.(c) 

The  object  of  this  rule  is  to  oblige  a  defendant  to 
discover  his  points  of  defence  and  put  an  end  to  the 
general  traverse,  called  the  general  issue.  However, 
the  privileged  defence  of  not  guilty  by  statute  is 
still  preserved  in  England,(c^)  and  has  been  restored 
in  Ireland,  (e) 

(495.)  Payment  of  money  into  Court  should  be 
pleaded  in  the  defence  and  the  claim  or  cause  of 
action  in  respect  of  which  such  payment  shaU  be 
made  should  be  specified  therein. (/) 

A  plea  of  payment  cannot  be  accompanied  by  a 
denial  of  the  cause  of  action  in  respect  of  which  the 
payment  is  made. 

(496.)  The  Judicature  Act  seems  to  contemplate 
that  the  issues  of  fact  or  law  for  trial  by  a  judge  or 
jury  or  by  the  Court  will  in  general  be  evolved  from 
the  pleadings  themselves,  but  where  this  does  not 
happen  to  take  place  a  procedure  something  like 
that  of  our  Common  Law  Procedure  Act,  1853, 
itself  (borrowed  from  that  of  the  Scotch  Courts) 
must  be  resorted  to,  and,  for  this  purpose  it  is  pro- 
vided that  where,  in  any  action,  it  appears  to  a 
judge  that  the  statement  of  claim  or  defence  or 
reply  does  not  sufficiently  define  the  issues  of  fact 
in  dispute  between  the  parties  he  may  direct  the 


(c)  Sch.  K.  25,  Ord.  19,  R.  20,  E. 

(d)  See  Ord.  19,  R  16,  E. 

(e)  Ord.  xviii.,  R  9  infra, 

if)  Sch.  R.  30,  part  of  Ord.  31,  R.  1.  E. 


AJyiENDMENT  OF  PLEADINGS.  389 

parties  to  prepare  issues ;  and  such  issues  shall,  if  y^ew  Ruks 

./V-,  Til  1        T     1         /    \       r\        Of  Pleading. 

the  parties  difier,  be  settled  by  the  Judge. (^)  Our  — 
Order  xxv.  further  declares  that  the  practice  hereto- 
fore in  use  under  the  Common  Law  Procedure  Act, 
1853,  as  to  serving  and  settling  of  issues  is  abolished. 
But  if  any  party  considers  it  expedient  from  the 
state  of  the  pleadings  to  have  issues  settled  he  ma}'- 
apply  to  a  Judge  in  Chamber  for  the  purpose. 

(497.)  The  Court  or  Judge  may  at  any  stage  of  Amend- 
the  proceedings  allow  either  party  to  alter  his  pleadings, 
statement  of  claim  or  defence  or  reply,  or  may  order 
to  be  struck  out  or  amended  any  matter  in  such 
statements  respectively  which  may  be  scandalous, 
or  which  may  tend  to  prejudice,  embarrass,  or  delay 
the  fair  trial  of  the  action,  and  all  such  amendments 
shall  be  made  as  may  be  necessary  for  the  purpose  of 
determining  the  real  questions  in  controversy  be- 
tween the  parties  ;  and  all  parties  shall  have  also 
such  further  powers  of  amendment  as  shall  be  pre- 
scribed by  the  rules.  (^) 


CHAPTER  LIII. 

Incidental  Proceedings  between  Pleadings 
AND  Teial. 

499.  Discontinuance  of  Action,  p.  389. 

500.  Withdrawing  Defence,  390. 

501.  Payment  of  Monej^  into  Court,  390. 

502.  Discovery  and  Evidence,  390. 


(499.)  Plaintiff  may    before    defence    or  before  Discon- 
taking    any   step   after   it  (save  an    interlocutory  of^actiol 
application),   discontinue    the    action    by    serving 
notice  to  that  effect  or  he  may  withdraw  an}^  part 
of   his   complaint   and    thereupon    he    must    pay 

if)  Sch  R.  27,  Ord.  26  E. ;  see  Com.  Law  (Ire.)  Pro.   Act,  1853, 
s.  102. 

(A)  Sch.  R.  28,  Ord.  27  E. 


500 


"WITHDRAWING  DEFENCE. 


Incidental 

Proceedings 

between 

Pleadings 

and  Trial. 


"With- 
drawing 
defence. 


PajTnent 
of  mouey 
into  Court. 


Discovery 

and 

evidence. 


defendant's  costs  of  the  action,  or  the  costs  occasioned 
by  the  part  withdra"wn.(a.)  But  cther"wise  the 
plaintiff  cannot  "withdra-w  a  record  (except  on 
consent  of  both  parties),  or  discontinue  the  action 
without  leave. (6)  The  defendant  may  sign  judg- 
ment for  his  costs  on  a  notice  of  discontinuance 
of  part  or  the  entire  action.(c) 

(500.)  A  defendant  may  be  allo"wed  by  order 
to  withdraw  the  whole  or  any  part  of  his  defence 
or  counter-claim  but  he  cannot  do  so  without 
leave.  (fZ) 

(501.)  Where  any  action  is  brought  to  recover  a 
debt  or  damages  any  defendant  may  at  any  time 
after  service  of  the  writ  and  before  or  at  the  time 
of  delivering  his  defence  or  by  leave  of  the  Court 
or  Judge,  at  any  later  time,  pay  into  Court  a  sum 
of  money  by  "way  of  satisfaction  or  amends. (e) 

As  we  have  seen  this  plea  cannot  be  joined  with 
a  denial  of  the  right  of  action. (/) 

(502.)  Very  ample  powers  are  given  to  the  parties 
respectively  to  obtain  discovery  of  facts  and  inspec- 
tion of  documents,  at  periods  fixed  by  the  Rules,((/) 
and  to  call  for  admission  of  documents.(/t) 

But  otherw^ise  the  rules  of  evidence  or  mode  of 
giving  evidence  by  oral  examination  of  witnesses  in 
trials  by  jury  are  not  aifected  or  altered  by  the 
Judicature  Act  or  Rules,  save  the  power  of  the  Court 
for  special  leasons  to  allow  depositions  or  affidavits 
to  be  read.(i) 


(a)  See  Order  xxii.  K.  1,  infra  Ord.  23,  R.  1  E. 

(h)  II. 

(c)  Ord.  xxii.  K.  3,  Ord.,  June,  I87C,  E. 

(fO  Ord.  xxii.  R.  1.  infra. 

(,')  Sch.  R.  30,  part  of,  Ord.  31,  R.  1.  E 

(/)  See  ante  (495),  p.  388. 

(.7)  See  Ord.  xxxi.  R.  1  &  5,  infra  Ord.  31,  E. 

(/i)  See  Ord.  xxxii.  ittfra  Ord.  32,  E. 

(i)  J.  A..  1877,  sec  G6;  J.  A.  1875,  s.  20. 


[    391     ] 

CHAPTER  LIV. 

Teials  and  Evidence. 

504.  County  and  place  of  Trial,  p.  391. 
605.  Different  modes  of  Trial,  392. 

506.  Trial  bj'  Jury,  Right  to,  392. 

507.  Notice  of  Trial  by  Jury,  392. 

508.  Judge  may  order  different  modes  and  times  of  trial,  392. 

509.  Assessors  may  be  called  in  aid,  392. 

510.  Provision  as  to  Arbitration,  393. 

511.  Notice  of  Trial  without  Jury,  393. 

512.  Dismiss  for  want  of  proceeding  by  Notice,  393. 

513.  Notice  of  Trial  by  Defendant,  394. 

514.  No  countermand,  except  by  consent  or  leave,  394. 

515.  General  Lists  for  Dublin,    394. 

51G.  Entry  for  Trial  by  opposite  side,  394. 

517.  Two  copies  of  Pleadings  to  be  lodged,  394. 

518.  Trial,  394. 

519.  Shorthand  Writer's  Notes,  394. 

520.  Non-appearance  at  Trial,  395. 

521.  Right  to  proper  Directions,  395. 

522.  Right  enforced  by  exceptions,  396. 

523.  Exception  to  a  direction,  396. 

524.  Order  for  Judgment,  396. 

525.  Evidence  on  Trial  by  Jury,  396. 

526.  Affidavits  as  to  particular  fact^,  396. 

527.  Evidence  on  other  Trials,  397. 

528.  Evidence  on  Affidavits,  397. 

529.  New  Trial,  application  for,  397. 

630.  Admission  or  rejection  of  Evidence,  398. 

631.  New  Trial  as  to  part,  398. 

532.  Without  interfering  with  the  rest,  398. 


(504.)  The  plaintiff  is  required  in  the  document  county  or 
by  which  each  cause  is  commenced  to  name  the  friTfto  be 
county  or   place   in  which  he  proposes  that  the  ^^'*'^'^'^- 
cause  shall  be  tried  or  proceeding  shall  take  place, 
but  the  Court  or  Judge  may  in  their  or  his  dis- 
cretion direct  the  same  to  be  tried  in  any  other 
county  or  place,  and  so  far  as  shall  be  reasonably 
consistent  and  speedy  discbarge  of  the   business, 
every  issue  and  question  of  fact  submitted  to  a  Jury 
shall  be  tried  in  the  county  or  place  where  the 
cause  of  action  has  arisen,  (a) 

Any  order  of  a  Judge  as  to  the  place  of  trial  may 
be  discharged  or  varied  by  a  Divisional  Court. (6) 

(a)  J,  A.  1877,  s.  33,  part  of.  (fi)  lb. 


392  DIFFERENT  MODES   OF   TRIAL. 

Trials  and  Unless  wliere  the  trial  is  to  be  by  jury  it  is  un- 
Evi^^ewx.  j^gggggg^jy  jjj  ^i^e  writ  to  specify  any   county   or 

place.  (6) 
Trial—  (505.)  Actions  may  be  tried  in  three  different 

modes'of.     ways,    first,   before  a  Judge    or    Judges ;   second, 
before  a  Judge  sitting  with  assessors  ;  third,  before 
Judge  and  Jury  with  or  without  assessors.(c) 
Trial  by  (506.)  It  is  cxprcssly  provided,  by  the  Judicature 

rightT  -^ct,  that  nothing  contained  in  it  or  in  any  rule 
made  under  its  provisions  shall  take  away  or  pre- 
judice the  right  of  any  party  to  any  action  to  have 
questions  of  fact  tried  by  a  jury  in  such  cases  as 
he  might  heretofore  of  right  have  required  \i.{d) 
Notice  of  (507.)  Accordingly  the  curial  rule(e)  on  the  subject 
^^'^^^  declares,  that  in  cases  where  heretofore  any  party 

to  the  action  might  of  right  have  required   any 
question  of  fact  to  be  tried  by  a  Jury,  the  plaintiff 
may,  with  his  replication,  or  after  the  close  of  the 
pleadings,  give  notice  of  trial  by  Judge  and  Jury 
and  have  the  action  so  tried.     If  the  plaintiff  fails 
to  do  so  within  six  weeks  of  the  close  of  the  plead- 
ings, defendant  may  give  notice  of  trial  before  a 
Judge  and  Jury  ;  and  if  no  place  be  named  in  the 
writ  defendant  may  name  the  county  in  which  he 
proposes  the  trial  should  be  held. 
Judge  may       (508.)  Subject  to  the  right  to  a  trial  by  jury  the 
rtlfferent      Court  or  Judge  may  order  different  questions  of 
t"mtsT'^   flict  to  be  tried  by  different  modes  of  trial   and 
*"^'-  appoint  the  place  and  order  in  which  the  issues  of 

fact  shall  be  tried.(/) 
Assessors         (509.)  Subject  to  any  right  that  may  exist  to  have 
raUedL      particular  cases  submitted  to  the  verdict  of  a  jury, 


aid. 


{}>)  Ord.  1,  R.  1,  infra. 

(c)  Ord.  XXXV.  R.  1,  infra ;  Ord.  36,  R.  2  E. 

{d)  3.  A.  1877, 8.  48,  §  2. 

(c)  See  Ord.  xxxv.  R.  2,  infra. 

If")  Ord.  XXXV.  R.  6,  infra ;  Ord.  36,  R.  6  E. 


PROVISION  AS  TO   AEBITRATION.  398 

the  High  Court,  or  the  Court  of  Appeal,  may,  in  any  Trials  and 
civil  cause  or  matter  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 
the  cause  or  matter  wholly  or  partially  with  the 
assistance  of  the  assessors.  The  remuneration,  if 
any,  to  be  paid  the  assessors,  will  be  determined  by 
the  Court,  (^r) 

(510.)  The  provisions  (sections  6  to  20,  both  in-  Provision 
elusive)  of  the  Common  Law  Procedure  Act  (Ire-  arbitration. 
land)  1856,  in  reference  to  arbitrations,  are  made 
applicable  to  the  High  Court  of  Justice  and  the 
several  Divisions  of  it  and  the  Judges  of  same,  in 
the  same  manner  as  formerly  to  the  Superior  Courts 
of  Common  Law  and  the  Judges  of  same  respec- 
tively. (A) 

(511.)  Where  the  action  is  not  of  right  triable  by  Notice  of 

'  .       ,.,  trial  by 

Judge  and  Jury,  the  plaintiff  may  m  like  manner  other 
and  time  give  notice  oi  an  application  to  a  Judge 
to  direct  the  mode  and  if  necessary  the  place  of  the 
trial  of  the  action.  In  default  the  defendant  may 
give  such  notice,  upon  this  application,  the  Judge 
may  direct  the  action  to  be  tried  in  such  mode,  and 
if  before  Judge  and  Jury,  in  such  county,  and  also 
give  such  directions  as  to  the  evidence  upon  the 
trial  as  he  may  think  jSt.('i) 

C512.)  In  default  of  the  plaintiff  giving  notice  of  Dismiss 

^  ■'  ■*•  ^ .  for  want 

trial  by  jury,  or  of  an  application,  as  m  the  case  last  of  prose- 
mentioned,  to  have  the  mode  of  trial  directed  by  a  *^"  '°'^' 
Judge,  the  defendant  instead  of  giving  notice  of  trial, 
or  giving  notice  of  application  to  direct  the  mode  of 
trial  (as  in  last  section),  may  apply  to  dismiss  the 
action  for  want  of  prosecution,  on  which  the  action 
may  be  dismissed  or  such  other  order  be  made  as 
.  may  seem  just.(A^) 

ig')  J.  A.  1877,  8.  59.  (A)  J.  A.  1877,  s.  60. 

\i)  Ord.  sxxv.R.  3,  infra.  (Jc)  Ord.  xxxv.,  R.  4-,  infra. 

S  3 


594 


NOTICE   OF  TRIAL   BY   OTHER  MEANS. 


Tj'ials  and 
Evidence. 

Notice  of 
trial  by 
defendant. 


Counter- 
mand only 
by  consent 
or  leave. 
General 
Dublin 
lists. 


Entry  by 

opjjosite 

party. 


Two  copies 
of  plead- 
ings to  be 
lodged. 


Trial. 


Sliort- 
hand 
writer's 
rcjiort  of 
evidence. 


(513.)  If  the  plaintiff  in  an  action  triable  of  right 
by  jury  do  not,  within  six  weeks  after  the  close  of 
the  pleadings,  give  notice  of  trial  by  jury,  the  de- 
fendant may  give  such  a  notice,  and  name  a  county 
for  trial  if  none  be  mentioned  in  the  writ.(Z) 

(514.)  Notice  of  trial  cannot  be  countermanded 
except  by  consent  or  by  leave  of  the  court,  (r/i) 

(515.)  In  Dublin  for  county  and  city  the  lists  for 
trial  are  to  be  prepared  and  allotted  for  trial  withour 
reference  to  the  division  to  which  the  action  may 
be  attached. (ti) 

(516.)  When  the  action  is  for  trial  in  Dublin,  if 
the  party  giving  notice  omits  to  enter  the  action 
for  trial  on  the  day  or  day  after  giving  the  notice, 
the  opposite  party  may  do  so  within  four  days.(o) 
Where  the  notice  is  for  trial  elsewhere  than  in 
Dublin,  either  party  may  enter  it.(p) 

(517.)  There  is  no  such  thing  as  a  Record  of 
Nisi  Prius,  instead  thereof  the  party  who  enters  the 
action  for  trial  is  to  deliver  to  the  officer  two  copies 
of  the  whole  of  the  pleadings,  one  of  which  is  for 
the  use  of  the  judge,(a)  and  the  other  presumably 
for  the  use  of  his  Registrar. 

(518.)  It  is  probable  the  Registrar  will  jn-ovide 
himself  with  a  book  in  which  may  be  entered  the 
judge's  dh-ections  as  to  judgments  and  exceptions 
to  his  charge  if  any,  for  the  purpose  of  supplying 
something  in  the  nature  of  a  permanent  official  re- 
cord of  these  proceedings  at  the  trial. 

(519.)  The  J.  A.,  1877,  s.  61,  §  2,  enables  the 
proper  authorities  to  make  rules  of  court  "  for  the 
reporting  by  a  competent  shorthand  writer  of  the 
evidence  in  all  cases  of  trials  by  jury,  wdicnever  it 
may  be  expedient  or  desirable  to  do  so."    The  Gene- 


(0  Ord.  x.x.xv.  K.  3,  infra. 
(h)  lb.  R.  17,  infra. 
(p)  Ih.  K.  16,  infra. 


(jii)  Ord.  x.xxv.,  R.  14,  infra. 
{(>)  Ord.  XXXV.,  R.  15,  infra, 
(a)  Ord.  XXXV.,  R.  18,  infra. 


XON-APPEARANCE  AT  TEIAL.  395 

ral  Order  LXL  accordingly  provides  that  Avhen  any  Trials  and 
party  wishes  to  have  the  evidence  at  a  trial  by  jury  — 
reported  by  a  shorthand  writer,  he  may  apply  to 
the  judge  in  whose  list  the  case  may  be  entered  for 
trial  within  four  days  after  service  of  notice  of  trial 
or  such  further  term  as  may  be  allowed,  for  an  order 
that  the  evidence  shall  be  reported.  The  judge,  if  he 
thinks  it  right,  may  make  an  order  accordingly,  and 
appoint  a  shorthand  writer,  and  direct  a  sum  of 
money  to  be  deposited  for  his  payment.  He  may 
also  direct  copies  of  the  report  to  be  furnished  to 
himself  and  to  the  parties.  The  expenses  of  the 
shorthand  writer  are  to  be  borne  by  the  party  ask- 
ing for  the  order,  unless  the  judge  immediately  after 
the  trial  certifies  that  in  his  opinion  it  was  expedient 
the  evidence  should  be  reported.  On  such  a  certifi- 
cate the  costs  become  costs  in  the  cause.  The  scale 
of  fees  to  be  paid  to  the  shorthand  writer  is  fixed  by 
Rules  of  Court. 

(520.)  If,  when  the  action  is  called  on  for  trial,  Non 

^  '  ap'pearance 

the  plaintiff  appears,  but  defendant  does  not  appear,  at  trial, 
the  plaintift  must  prove  his  case  so  far  as  the  bur- 
then of  proof  lies  on  him,(q)  but  if  the  defendant 
appears  while  the  plaintifi"  does  not,  the  defendant 
is  entitled  to  have  judgment  dismissing  the  action  ; 
if  he  has  a  counter  claim  he  should  prove  it  so  far 
as  the  burthen  of  proof  lies  on  him.(r) 

(521.)  Nothing  in  the  Judicature  Act  or  Rules  Right  to 

i\iT  .TIT  •ij-i"  ^      liuve  issues 

shall  take  away  or  prejudice  the  right  ot  any  party  jeftto 
upon  any  trial  before  a  jury  to  have  the  issues  for  prope"  '^ 
trial  by  jury  submitted  and  left  by  the  judge  to  the  ^i'^^ti'^ns. 
jury  before  whom  the  same  may  come  for  trial  with 
a  proper  and  complete  direction  to  the  jury  upon 
the  law,  and  as  to  the  evidence  applicable  to  such 
issues,  (.s) 

(2)  lb.  E.  19,  infra.  ('•)  ib.  E.  20,  infra. 

(s)  J.  A.  1877,  s.  is,  §  2,  part  of. 


396 


EIGHT   ENFORCED  BY  EXCEPTIONS. 


Trials  and 
Evidence. 

Right 
enforced 
by  motion 
on  an 
exception. 

Exceptions 
to  direc- 
tions. 


Order  for 
judgment. 


Evidence— 
witnesses 
examined 
viva  I'ncp, 
or  trial  by 
jury, 

AflBdavits 
as  to 

particular 
iacts. 


(522.)  The  party's  right  to  have  his  case  properly 
submitted  to  the  jury  may  be  enforced  by  motion 
to  the  High  Court,  or  by  motion  in  the  Court  of 
Appeal  grounded  upon  an  exception  entered  upon 
or  annexed  to  the  record.  (^) 

(523.)  Formal  bills  of  exceptions  are  abolished  by 
Order  Iviii,,  E.  1,  and  there  is  now  realLy  no  record 
upon  or  to  which  the  exception  can  be  entered  or 
attached  unless  it  be  the  Registrar's  Book.(u)  It 
is  presumed  the  proper  course  will  be  to  hand  in  a 
memorandum  or  dominical  of  the  objection  raised 
or  exception  taken  which  the  judge  may  attach  to  his 
note  of  the  evidence  or  to  the  pleadings,  or  probably 
direct  the  Registrar  to  make  an  entry  of  it  on  his 
book. 

Upon  this  exception  the  party  has  the  option  to 
move  the  Divisional  Court,  or  move  the  Court  of 
Appeal  by  way  of  appeal  from  the  judge's  direction 
or  ruling',  (v) 

(524.)  The  judge  may  at  or  after  the  trial  direct 
judgment  to  be  entered  for  either  party  or  adjourn 
the  case  for  further  consideration  or  leave  the  party 
to  move  for  judgment. (-ly) 

But  no  judgment  can  be  entered  after  a  trial 
without  an  order  of  a  court  or  judge. («) 

(525.)  In  the  absence  of  agreement  between  the 
parties  all  witnesses  on  a  trial  of  an  action  before  a 
judge  and  jury  or  at  any  assessment  of  damages  are 
to  be  examined  vivd  voce  in  open  court.(2/) 

(526.)  However  the  court  or  judge  may  for 
sufficient  reason,  at  any  time  order  any  particular 
fact  to  be  ])roved  by  affidavit  or  that  an  affidavit  be 
read  at  tlie  hearing  or  trial,  or  that  any  witness 


(0  J.  A.  1877,  s.  48,  §3. 

(!/)  See  Cheese  v.  Lovejoy,  25  W.  R.  4o3,  A.  C.  (r)  lb. 

(»')  Ord.  xsxv.  K.  23,  infra.  (x)  lb. 

(y)  See  Ord.  xxxvi.  11.  1,  infra. 


I 


EVIDENCE  ON   OTHER   TRIALS.  397 

-whose  attendance  in  court  oudit  for  some  sufficient  Tnais  and 

.        ,  ,        .     ,  Evidence. 

cause  be  dispensed  \\rith,  be  examined  by  mterroga-      — 
tories  before  a  commissioner  or  examiner. (s)     Where     *, 
the  evidence  at  the  hearing  is  taken  by  affidavit  the   ly/^ 
witnesses  may  be  required  to  attend  for  cross-exam-  '^ 
ination.((t) 

(526.)  In  trials  before  a  iudge  alone,  or  before  a  On  other 

\  /  .  .  ,       trial" — 

iudere  with  or  without  assessors,  evidence  is  to  be  evidence 

as  to. 

taken  as  the  court  shall  direct.  (6) 

So  that,  as  it  seems,  a  direction  as  to  evidence 
must  be  had  from  the  judge  in  every  case  except 
where  the  trial  is  before  a  jury  and  presumably  at 
the  close  of  the  pleadmgs. 

('527.')  If  the  iudo-e  directs  the  evidence  at  the  Evidence 

1  rt-  n       •         1  ncn       •  °^  affidavit 

hearing  to  be  taken  by  affidavit,  the  affidavits  are 
to  be  filed  in  a  series  of  three,  to  be  filed  and  printed 
as  on  motion  for  decree  in  the  Court  of  Chancery. 
There  is  this  difierence  that  the  time  fixed  for  filing 
each  set  can  be  varied  by  agreement  between  the 
parties. (c)  In  this  case  either  party  wishing  to  cross- 
examine  a  deponent  who  has  made  an  affidavit  on 
behalf  of  the  opposite  side  has  an  absolute  right 
within  a  prescribed  time  to  call  for  his  production. 

The  party  who  seeks  to  use  his  affidavit  must 
produce  the  deponent,  at  the  peril  of  its  being  re- 
jected, unless  by  special  leave,  and  this  without  the 
party  calling  for  the  production  of  the  witness, 
tendering  his  expenses  in  the  first  instance. (c?) 

(528.)  Application  for  anew  trial  of  any  cause  New  trials 
tried  in  a  Common  Law  Division,  before  a  jury  or  cation  for. 
by  a  judge  without  a  jury  may  be  made  to  Divisional 
Court,  by  motion  for  an  order  to  show  cause  at  the 
expiration  of  eight  days  from  the  date  of  the  order  or 
so  soon  after  as  the  case  can  be  heard,  why  a  new  trial 

(z)  Ord.  xxxvi.,  R.  1,  infra.      (a)  Ord.  xxxvii,  R.  4,  infra. 

(6)  Ord.  xxxvi,  R.  4,  infra.      (c)  Ord.  xxxvii.  RR.  1,  2,  3,  infra. 

(d)  Ord.  xxxvii,  R.  4,  infra. 


398  APPLICATION   FOE   NEW  TRIAI.. 

Trials  and  slioulcl  iiot  be  directed.     The  motion  is  to  be  made 
— ' '   within  four  days  after  the  trial,  if  the  Divisional 
Court  be  sitting,  or  four  days  after  the  following 
sittings  commence. (e) 

Unless  such  an  application  is  made  to  a  Divisional 

Court,  no  appeal  will  lie  to  the  judgment  entered 

after  a  verdict  unless  in  case  of  an  exception  taken 

to  the  directions  of  a  judge  and  entered  of  record  in 

which  case  the  party  may  move  either  a  Divisional 

Court  or  the  Appeal  Court. (/) 

New  trial         (52.9.)  No  uew  trial  can  be  granted  on  the  ground 

nu^s^ion  or    of  misdirection  or  of  the  improper  admission  or  re- 

evfden°e—  jectiou  of  evidence  unless  in   the  opinion  of  the 

not  unless    (jourt  to  whicli  the  application  is  made,  some  sub- 

substantial  '_  J-  _ 

mi'^-.  stantial   wrong   or  miscarriage   has   been   thereby 

occasioned  in  the  trial  of  the  action. (r/) 
New  trial  (530.)  If  it  appear  to  the  Court  that  the  wrong  or 
without  miscarriage  (however  substantial)  affects  part  only 
the  re?t."°  of  the  matter  in  controversy,  it  is  competent  for 
the  Court  to  give  final  judgment  as  to  the  other 
part  thereof  only  and  direct  a  new  trial(/i) 
New  trial  (531.)  A  new  trial  may  be  ordered  on  any 
question  questioii  in  an  action,  whatever  be  the  grounds  for 
huerfering  the  new  trial,  without  interfering  with  the  finding 
rest!  "'*^      01"  decision  upon  any  other  question.(i) 

(e)  Ord.  xxxviii,  R.  1. 

(/)  Cheese  v.  Lovejoy,  25  W.  R.  453;  21  Sol.  Jour.  457. 

(g)  Sch.,  R.  32,  part  of ;  Ord.  39,  R.  3,  E. 

(/t)  Sch.,  R.  32,  part  of. 

(0  lb. 


1 


[     899     ] 

CHAPTER  LV. 
Judgment  axd  Execution. 

532.  Motion  for  Judgment,  p.  399. 
633.  Motion  to  set  aside  Judgment,  400. 
534.  Judgment,  how  enforced,  400. 
635.  Execution,  riglit  to  immediate,  401. 
53().  Attacliment  of  tlie  person,  401. 
537.  Orders,  how  enforced,  401. 


(532.)    Unless   when  some   special   direction  is  Motion  for 
given  as  to  obtaining  judgment,  the  pai'ty  consider-  ^"  °^^'^ ' 
ing  himself  entitled  to  it  must  apply  to  the  Court 
by  motion  for  judgment. ((i) 

Judgment  may  be  entered  without  such  an  appli- 
cation in  certain  cases,  as  for  default  of  appearance 
or  for  default  of  defence  or  replication. 

But  after  a  trial  by  a  Judge,  or  Judge  and  Jury, 
no  judgment  can  be  entered  without  an  order  for 
the  purpose.  (6)  This  application  may  be  to  the 
Judo-e  himself  at  the  trial  who  is  constituted  a 
Court  of  the  High  Court(c)  for  this  purpose,  and 
has  all  the  powers  of  the  Court  to  deal  with  the 
action — so  he  may  apply  the  law  to  the  facts  found 
and  pronounce  the  proper  judgment  and  direct  it  to 
be  entered,  (c?) 

If  he  does  so  direct,  the  party  in  whose  favour  it 
is  given  may  obtain  a  certificate  from  the  Judge's 
Registrar  to  that  effect,  and  upon  production  to  the 
proper  ofiicer  in  Dublin  the  latter  will  enter  the 
judgment, (e)  or  where  there  are  several  issues  or 
questions  ordered  to  be  tried  in  different  ways,  in 
that  case  judgment  will  be  obtained  by  motion  for 
judgment.(/) 

In  the  Chancery  Division  in  England  motions 

(a)  Ord.  xxxix.,  E.  1,  infra ;  Ord.  40,  R.  1,  E. 

(b)  Ord.  XXXV.,  R.  23,  infra.  (c")    Vide  ante  (195)  p.  156, 
(<)  Ord,  XXXV.,  R.  23,  injra.  (e)  Ord.  xxxv.,  E.  25,  infra, 
(f)  Ord.  xxxix.,  E.  5,  infra. 


400 


MOTION   TO  SET   ASIDE  THE  JUDGMENT. 


and 
Execution. 


Judgment  for  judgment  are  set  down  in  the  cause  book 
and  brought  on  as  causes  and  not  as  ordinary 
motions. 

But  the  Judge  may,  in  directing  judgment  to  be 
entered,  also  reserve  leave  to  any  party  to  move  to 
set  aside  or  vary  the  judgment  or  to  enter  some 
other  judgment,  and  in  that  case  the  party  to  whom 
leave  is  reserved  should  set  down  the  action  on 
motion  for  judgment  (not  on  motion  to  show  cause) 
and  give  notice  thereof  to  the  other  side,  stating 
the  grounds  thereof,  within  the  time  limited  by  the 
Judge,  or,  if  no  time  is  limited  then,  within  ten 
days  after  the  trial. (a) 

If  the  judge  at  the  trial  gives  no  direction  as  to 
entry  of  the  judgment,  the  plaintiff  should  set  down 
the  action  on  motion  for  judgment  and  give  notice, 
and  failing  to  do  so  within  ten  days  after  the  trial, 
the  defendant  may  set  it  down.(6) 

(533.)  Where  the  judge  at  the  trial  directs  a  judg- 
ment to  be  entered  the  opposite  party  may,  without 
any  leave  reserved  apply  by  motion  to  the  Divi- 
sional Court  that  the  judgment  as  entered  be  set 
aside  and  to  enter  some  other  judgment  on  the 
ground  that  the  judge  has  caused  the  finding  of  the 
jury  to  be  entered  wrongly,(c)  or  has  entered  a 
wrong  judgment  upon  the  finding.((:7) 

(534.)  Every  judgment  of  the  High  Court  for  the 
recovery  or  payment  of  money,  whether  in  the  Chan- 
cery or  the  Common  Law  Divisions,  may  be  en- 
forced by  one  and  the  same  process.  Common  Law 
judgments  maybe  enforced  by  sequestration  and  by 
attachment  of  the  person  in  cases  in  which  attach- 
ment is  authorised  by  law  (by  the  Debtors'  Act), 
and    Chancery    Judgments    may   be   enforced    or 

(a)  Ord.  xxxix.,  R.  2,  infra  ;  Onl  40,  K.  2,  E. 
(i)  Ord.  xxxix.,  R.  3,  infra ;  Ord  40,  K.  3,  E. 
(c)  Ord.  xxxix.  R.  4,  infra.  {J)  lb.  R.  5. 


Motion  to 
set-aside 
the  judg- 
ment. 


Judgments 
— how- 
en  forced. 


RIGHT  TO   IMMEDIATE   EXECUTION,  401 

realized  by  attacliment  of  debts. (c)     Judgments  for  Judgment 
the  recovery  or  delivery  of  the  possession  oi  land  Execution. 
may  be  enforced  by  writ  of  possession,(f?)  and  for 
recovery  or  delivery  of  other  property  oy  writ  of 
delivery,  attachment,  or  sequestration. (e) 

Co35.)  The  right  to  have  execution  of  the  judg-  Execution 

\  /  o  1       i"         -i.  — right  to 

ment  for  a  sum  of  money  or  for  costs  whether  it  immediate, 
follow  upon  the  verdict  of  a  jury  or  not  is  imme- 
diate unless  there  be  some  order  made  to  the  con- 
trar3^(/) 

(536.)  Every  judgment  of  the  High  Court   re-  By  attach- 
quiring  any  person  to  do  any  act  other  than  the 
payment  of  money  or  to  abstain  from  doing  any 
act,  may  be  enforced  by  writ  of  attachment  or  by 
committal.  (^) 

But  no  writ  of  attachment  can  be  issued  without 
special  leave  of  the  court  or  judge  to  be  applied  for 
on  notice  to  the  party  to  be  attached. (/i) 

(537.)  Every  order  of  the  High  Court  or  a  judge-  Order 

,      enforced 

in  an  action,  cause,  or  matter,  may  be  enforced  m  asjudg- 
the  same    manner   as   a   judgment   to    the   same 
effect,  (i) 

(c)  See  Ord.  xli.,  R.  1  &  2,  infra.  (.d)  lb.  R.  3. 

(e)  /&.,  R.  4.  (/)  Ord.  xli.,  R.  15,  infra, 

(g)  Ord.  xli.,  R.  5,  infra.  (h)  Ord.  xliii.,  R.  2,  injra. 

(J)  Ord.  xli.,  K.  21,  j»yra. 


[     402     ] 


Costs 
generally 
in  dis- 
cretion of 
Court. 


Costs  of 
action 
tried  by 
juiy. 


CHAPTER  LYI. 
Costs. 

538.  Costs  generally  in  discretion  of  Court,  p.  402. 
53!).  Costs  of  Actions  tried  by  Jury,  402. 

540.  Statutory  Limitations  as  to  Costs,  403. 

541.  Trustees  and  Mortgagees,  408. 

542.  Party  and  party  Costs,  403. 


(538.)  Subject  to  certain  exceptions  provided  by 
tlie  Judicature  Act  and  of  any  Eules  of  Court,  the 
costs  of  and  incident  to  every  proceeding  in  tlie 
High  Court  of  J  ustice  and  in  the  Court  of  Appeal 
are'  placed,  in  the  discretion  of  the  Coi\vt.{a) 

(539.)  Subject  to  all  existing  enactments  limiting 
regulating  or  affecting  the  costs  payable  in  any 
action  by  reference  to  the  amount  recovered,  the 
costs  of  every  action,  question,  and  issue  tried  by  a 
Jury  follow  the  event,  unless  the  Judge  at  the  trial 
or  the  Court,  shall  for  special  cause  shown  and 
mentioned  in  the  order  otherwise  direct.  How- 
ever, any  order  of  a  Judge  as  to  such  costs  may  be 
discharged  or  varied  by  a  Divisional  Court.(6)  This 
jurisdiction  cannot  be  exercised  by  the  Judge  w^ho 
tried  the  case  at  Chambers.(c)  In  England,  as  in  Ire- 
land the  statutes  relating  to  costs  in  actions  of  libel, 
slander,  &c.,  and  under  County  Courts  Acts  are  still 
in  force,  although  it  wo.s  at  one  time  considered  they 
w^cre  repealed  by  operation  of  Order  55,  English. (r/) 
Where  the  amount  of  plaintiff's  claim  is  reduced  by 
the  counter-claim  the  amount  must  be  decided  with 


(a)  J.  A.  1877,  s.  53,  §  2  ;  OriL  53,  K. 

Q/'j  lb. ;  see  Ord.  55,  E. ;  see  Wood  v.  Browne,  20  Sol.  Jour.,  782, 
Probate  Ct. 

(c)  Baker  v.  Oakes,  L.  R.,  2  Q.  B.  D.  171  ;  25  W,  R.  220  A. 

(J)  Garaett  v.  Bradley,  L.  R.,  2  Exch.  349  ;  25  W.  R.,  653  A.  C. ; 
overruling  Parsons  v.  Tiuliug,   L.    R.,  2   C.  P.   D.  119;    25  1». 


STATUTES   LIMITING   COSTS.  403 

reference  to  the  balance. («)  "  The  Court  may  make      costs, 
an  order  as  to  costs  notwithstanding  that  no  appli- 
cation was  made  at  the  trial.  (6) 

fo-iO.)  All existino- enactments  limitinor,reg:ulating,  statutes 

V  /  f3  •  1  r         limiting 

or  affecting  costs  payable  in  any  action  by  reier-  costs, 
ence  to  the  amounfc  recovered  therein,  are  undis- 
turbed by  the  Judicature  Act,  and  more  particularly 
in  all  actions  for  libel  where  the  jury  give  damages 
under  forty '  sliillings,  the  plaintiff  will  not  be 
entitled  to  more  costs  than  damages. (c) 

(541.)  The  Judicature  Act  does  not  alter  the  rule  costs  of 
of  equity  by  which  a  trustee,  mortgagee,  or  other  mort- 
person,  was  considered  entitled  to  costs  out  of  a  s^sees, 
particular  estate  or  fund  to  which  he  would  have 
been  entitled,  according  to  the  rules  hitherto  acted 
on  in  Courts  of  Equity.(cZ) 

(542.)  Where  in  any  proceeding   in   the   High  Party  and 

\  /  J     1  o  o      pai'ty  costs 

Court  of  Justice  or  Court  of  Appccil,  other  than  for  may  include 

solicitor 

the  recovery  oi  a  penalty,  the  costs  oi  any  party  to  and  cUeut's 
the  proceeding  are  ordered  to  be  paid  or  borne  by  *^°* "' 
another  party  to  the  proceeding,  or  by  a  fund  or 
estate,  these  costs  shall,  if  the  Court  so  directs, 
include  in  addition  to  the  costs  which  at  the  time 
of  the  passing  of  the  Judicatux^e  Act  w^ould  be 
allowed  as  between  party  and  party,  all  or  any 
other  costs,  charges,  and  expenses,  reasonably 
incurred  for  the  purposes  of  the  proceeding,  (e) 

(a)  Staples  v.  Young,  L.  K.,  2  Ex.  D.,  324;  25  W.  R.  304. 

(b)  General  Steam  Navigation  Company  v.  London  Shipping  Com 
pany,  W.  N.  1877,  156 ;  25  W.  R.  G94,  Ex.  D. 

(c)  J.  A.  1877,  s.  53,  §  3.  (d)  /&.§!,  Ord.  55  E, 
(e)  lb.  §  4.                     ' 


[     404     ] 

CHAPTER  LVII. 

Appeals. 

643.  What  Orders  may  be  appealed  from,  p.  404. 

644.  Decrees  of  Chancery  Division,  405. 

545.  Criminal  matters,  405. 

546.  Consent  Orders,  406. 

547.  Costs  and  discretion,  406. 

548.  Orders  at  Chambers,  407. 

549.  Appeal  from  part  of  Decree  or  Order,  408. 

550.  Limit  of  time  for  appealing,  408. 

551.  Ex  parte  applications,  401).  " 

552.  Periods,  how  computed,  409. 

553.  Extension  of  time,  410. 

654.   Appeal  to  be  by  way  of  notice,  411. 
555.  Service  of  notice,  411. 

656.  Respondent  not  put  to  Cross  Appeal,  412. 

657.  Setting  down  and  listing,  413. 

658.  Deposit  and  security  for  costs,  413, 

659.  Appeal  by  way  of  rehearing,  415. 

660    Evidence,  how  brought  before  Court,  416. 

661.  Further  e\idence,  418. 

662.  Further  evidence  without  leave,  420. 

563.  Power  of  Court  to  amend,  420. 

564.  Proper  judgment  to  be  given,  420. 

665.  Power  as  to  costs,  421. 

666.  Printing  evidence,  421. 

667.  Interlocutorv    Orders   not    to    prejudice    Appeal   from    final 

Orders,  422. 
568.  Stay  of  proceedings,  422. 
669,  Application  to  Court  below,  424. 


What  (543.)  Every  order  of  the  High  Court  whether 

Tj^'eaied     interlocutory  or  not  (with  some  few  exceptions) 
from,  jj^a^y  ]3e  appealed  from. (a) 

Thus  orders  on  interpleader(6)  or  a  decision  of  the 
C  P.  Division  in  an  action  referred  to  them  by  an 
inferior  Court,  (c)  and  possibly  from  an  order  for  a 
prerogative  writ  of  mandamus. (cQ  On  exceptions 
to  a  direction  of  a  judge  it  is  optional  to  proceed  by 
motion  in  the  Court  of  Appeal  or  by  motion  in  the 
High  Court,  i.e.,  a  Divisional  Court  thereof  (e)   From 

(a)  J.  A.,  1877,  8.  24. 

(b)  Witt  V.  Parker,  25  W.  R.  518,  A.  C. 

(c)  Maclean  v.  Vaughan,  20  Sol.  Jour.  723,  A.  C. 

(rf)  See  Reg.  v.  Upper  Mersey  Dock  Trustees,  20  Sol.  Jour.  150, 
Q.  B.  D. 

(e)  J.  A.,  1877,  9.  48  §3;  see  Cheese  v.  Lovejoy,  L.  R.  4  Ch.  V. 
421,  25  W.  R.  453 ;  21  Sol.  Jour.  457,  A.  C. 


i 


DECREES   OF   CHANCERY  DIVISION.  405 

a  judgment  or  a  decree  of  a  single  Judge  without  a    Appeals. 
jury  on  a  question  of  fact  an  appeal  lies  without 
applying  for  a  new  trial. (f) 

(oM.)  Decrees  of  the  Chancery  Division  may  be  Decrees  of 

^  ^  "^  "^  Chancery 

appealed  from  whether  enrolled  or  not.     Em'olment  Division 
only  affected  the  action  of  the  Court  of  Chancery  of  chan- 
itself  as  to  rehearing,  but  not  that  of  a  Court  of  '^°^^' 
Appeal  proper,  distinct  from  itself  ((/) 

A  decree  of  the  former  Court  of  Chancery  if  en- 
rolled cannot  be  appealed  from  to  the  new  Court  of 
Appeal  unless  the  enrolment  be  first  vacated.(/i) 
This  can  only  be  done  by  order  of  the  Lord  Chan- 
cellor. Such  decrees  probably  must  still  be  enrolled 
in  order  to  an  Appeal  to  the  House  of  Lords  and 
application  made  to  the  tribunals  representing  the 
Judge  and  the  Chancery  Appeal  Court  as  under 
the  General  Orders,  31  Oct.,  1867  (Chancery.) (^) 

Decrees  and  orders  of  the  Court  of  Chancery 
passed  and  entered,  but  not  enrolled,  may  be 
appealed  from,  and  are  to  be  prosecuted  under  the 
new  rules,  (j) 

If  not  passed  and  entered  they  may  still  be  re- 
considered and  minutes  varied  without  rehearing. (Z:) 

(545.)  No  appeal  lies  from  judgments  or  orders  in  criminal 
of  the  Queen's  Bench  Division  (nor  from  the  former 
Court  of  Queen's  Bench)  in  any  criminal  cause  or 
matter,  save  for  error  apparent  on  the  record,  and 
not  reserved  under  the  11  &  12  Vic.  ch.  78.(1)    Thus 

(/)  Sugden  V.  St.  Leonards,  Lord,  L.  R.  1  Pro.  D.  154,  24  W.  R. 
479 ;  Foster  v.  Roberts,  W.  N.,  1877,  11  A.  C. 

(3)  Hastie  V.  Hastie,  L.  R.,  2  Ch.  D.  304;  20  Sol.  Jour.  391,  411. 

(It)  Allan  V.  United  Kingdom  Electric  Telegraph  Company,  24 
W.  R.  898 ;  20  Sol.  Jour.  703,  A.  C. 

(0  See  Cope  v.  De  la  Warr,  L.  R.,  5  Chan.  D.  6G6;  21  Sol.  Jour. 
360,  A.  C. 

( j  )  See  chap.  xliv.  ante  Bartlam  v.  Yates,  L.  R.  1  Ch.  D.  13,  24 
W.  R.  19,  A.  C. 

(k)  Griffin  v.  Hamilton,  Ir.  Rep.  7  Eq.  141,  V.  C. 

(0  J.  A.,  1877,  s.  50,  §  2. 


406 


CONSENT   ORDERS, 


Consent 
orders. 


Appeals,  no  appeal  lies  from  an  order  discharging  a  rule 
for  a  writ  of  certiorari  to  bring  up  a  summary  con- 
viction (■7?i)  or  from  an  order  on  a  special  case  from 
an  inferior  Court,  on  a  conviction  for  keeping  a 
gaming  house. (7^) 

(546.)  No  appeal  lies  from  an  order  made  on 
consent  of  parti  es.(o)  No  order  can  be  so  treated 
unless  it  be  expressed  to  be  so  made,  but  in  one 
case  where  this  was  omitted  the  Court  of  Appeal 
appears  to  have  given  leave  to  apply  to  the  Court 
below  to  alter  the  form  of  the  order,(/))  and  the 
Judge  below  amended  it  by  expressing  that  it  had 
been  made  by  consent,  wdiereupon  the  Court  of 
Appeal  ordered  the  appeal  to  be  struck  out.(5) 

It  seems  where  the  order  is  purely  by  consent  no 
appeal  can  be  reserved  by  the  parties  themselves  (r) 

A  special  case  directed  by  an  arbitrator  partakes 

of  this  character  of  consent. (s) 

Orders  as         (547)  No  appeal  lies  from  an  order  as  to  costs 

matters  of    Only,  which  by  law  are  left  to  the  discretion  of  the 

discretion.    Qq^^j,.^^  unless  by  leave  of  the  Court  or  Judge  making 

the  same.(^) 

Where  an  order  in  its  terms  deals  merely  with 
costs,  but  in  reality  involves  a  question  of  law  and 
principle  though  for  costs  an  appeal  will  lie,(it)  or 
where  the  Judge  awarded  costs  against  a  plaintiff 
on  a  declaration  that  no  breach  of  an  injunction 

(w)  The  Queen  v.  Fletcher,  L.  R,  2  Q.  B.  D.  48,  25  AV.  K.  149;  see 
The  Queen  v.  Steel,  L.  R.  2  Q.  B.  D.  3". 

(«)  Metropolitan  Ry.  Coy,  v.  Defries,  L.  R.  2  Q.  B.  D.  387,  A.  C. 

(o)  J.  A.,  1877,  s.  52. 

(p)  See  Plant  v.  Bristowc,  20  Sol.  Jour.  584  A.  C. 

(?)  S,  C.  20  Sol   Jour.  603,  A.  C, 

(r)  The  Republic  of  Bolivia  v.  National  Bolivian  Navigation  Com- 
pany, 20  Sol.  Jour.  311,  M.  R. 

(.S-)  Jones  u.  Victoria  Graving  Dock,  L.  R,  2  Q.  B.  D.  314. 

(0  J.  A.,  1877,  s.  52,  §  1, 

(ri)  Tn  re  Rio  Grande  do  Sul  Ship  Cy.,  L.  R.  5  Ch.  D.  282  :  21  Sol. 
Jour,  54,  A.  C. 


ORDERS  MADE  AT   CHA:\IBERS.  407 

had  "been  committed, (v)  or  where  the  Judge  had  Appeals. 
exercised  no  discretion  in  the  matter  of  costs,  as  he 
ought  to  do,  but  awarded  them  on  a  principle  that 
is  wrong,  (ft)  Where  trustees  were  ordered  to  pay 
costs  personally  of  a  petition  under  T.  R.  Act,  it  was 
held  they  could. appeal  from  this. (6)    //../ 

Matters  left  to  the  discretion  of  a  Judo;e  cannot 
generally  be  made  subject  of  appeal,  as  where  a 
Judge  at  Nisi  Prius  strikes  out  a  case  out  of  his 
list(c)  or  refuses  to  amend  a  pleading, (c/J)  or  to 
dismiss  a  bill  for  want  of  prosecution,(e)  or  to  act  on 
an  admission  in  pleading  as  a  ground  for  immediate 
judgment,(/)  or  to  issue  a  commission  to  examine  a 
witness  abroad. (^') 

By  leave  of  the  Court  or  Judge  making  the 
order  an  appeal  may  be  taken,  and  this  leave  may 
be  applied  for  at  the  time  of  making  the  order  or 
subsequently.  ((/) 

(548.)  No  appeal  lies  from  any  order  made  at  orders 
Chambers,  unless  a  motion  to  set  it  aside  or  vary  it  chambers, 
has  been  made,  i.e.,  to  a  Divisional  Court,  or  unless 
the  Judge  making  the  order  or  the  Court  of  Appeal 
specially  gives  leave  to  appeal.(/i)     To  obtain  this 
leave  from  the  Court  of  Appeal  it  is  required  in 

(y)  Witt  V.  Corcoran,  L.  R.  2  Ch.  D.  69,  2-i  W.  E.  501 ;  20  Sol. 
411,  A.  C. 

(a)  Sturla  v.  Freccia,  W  'S.,  1877,  188;  21  Sol.  Jour.  73,  A.  C. 

(&)  Hoskin's  Trusts,  L.  R.  6  Chan.  D.  280,  25  W.  R.  779,  A.  C. ; 
Taylor  v.  Dowla,  L.  R.  4  Ch.  697 ;  but  see  Etherington  v.  Wilson,  24 
W.  R.  303,  A.  C. 

(c)  Cave  V.  Mackenzie,  W.  N.,  1876,  237  ;  20  Sol.  Jour.  7-14,  A.  C. 

Id)  Golding  V.  Wharton,  L.  R.  1  Q.  B.  D.  374;  24  W.  R.  423, 
A.  C.  ;  Watson  v.  Rodwell,  24  W.  R.  1009 :  20  Sol.  Jour.  782,  A.  C. 

(e)  Cooper  v.  Castle,  21  Sol.  Jour.  457,  A.  C. 

(/)  Mellor  V.  Sidebottom,  L.  R.  5  Chan.  D.  342,  25  W.  R.  401  ; 
21  Sol.  Jour.  379,  A.  C. 

(/)  Tn  re  Imperial  Land  Co.  of  Marseilles,  W.  N.  1877;  244  A.  C. 

(g)  Walsh  v.  Bishop  of  Lincoln,  20  Sol.  Jour.  73,  M.  R. 

(A)  J.  A.,  1877,  s.  54. 


408  APPEAL   FROM  JUDGMENT. 

Apjteais.    England  as  regards  Chancery  orders  that  the  Chief 

Clerk  or  the  Judge  should  certify,  or  that  it  should 

appear  on  the  order  itself,  that  the  matter  has  been 

fully  argued  before  the  Judge. (i) 

Appeal  (549.)  An  appeal  may  be  brought  from  the  whole 

ov^p^noi    or  any  part  of  a  judgment  or  order,  but  the  notice 

judgment.    ^^  appeal  must  state  whether  the  whole   or  part 

only  of  the  judgment  or  order  is  complained  of,  and 

in  case  part  must  specify  the  part.(y)     At  Common 

Law  a  judgment  was  an  entire  thing  and  could  not 

be  reversed  in  part  and  affirmed  in  part,  but  now  it  is 

otherwise  and  the  appeal  may  be  made  accordingly. 

So  an  appeal  may  be  taken  to  a  judgment  by  one 

or  more  of  several  plaintiffs  or  defendants  although 

others  may  refuse  to  join.(/i;) 

Time  for         (550.)  An   appeal   from   an  interlocutory  order 

must  be  brought  within  twenty-one  days  and  from 

any  other  order  not  after  the  expiration  of  one  year 

except  by  special  leave  of  the  Court  of  Appeal.(^) 

Appeals  from  the  Probate  Division  are  included 
in  this  K,ule.(77i)  But  as  regards  appeals  from 
orders  or  decisions  made  under  the  Companies 
Acts,(7i)  and  from  orders  made  in  the  Court  of 
Bankruptcy(o)  or  in  any  other  matter  not  being  an 
action,  they  are  to  be  governed  by  the  limit  mentioned 
above  as  to  interlocutory  orders,  i.  e.  within  twenty- 
one  days.  (2?) 

Thus  an  appeal  from  an  order  made  under  the 
Trustee  Relief  Acts  must  be  brought  within  twenty- 
one  days.(9') 

(i)  Murr  V.  Cooke,  24  W.  R.  750,  W,  N.,  1876,  l'J3  V.  C.  H.  ; 
Thomas  v.  Elsom,  L.  R.  6  Chan.  D.  346,  A.  C. 

0')  Sch.  R.  33,  part  of. 

ik)  See  Greene  r.  LeCIerk,  17  Ir.  Com.  Law  Rep.  357,  Ex. 

(0  Ord.  IviiL,  R.  11,  infra.  (m)  See  Order  Ixiv.,  R.  1. 

(n)  Order  Iviii,  R.  5,  infra.  (")  Jb.  (p)  lb. 

(ry)  In  re  BailUo's  Trust,  25  W.  R.  310,  W.  N.  1877,  41.' ;  21  Sol. 
Jour.  231. 


TIME   FOR   EX   PARTE  APPLICATIOX.  409 

It  is  stated'that  an  order  made  on  petition,  in  an    Appeals. 
old  suit,  directing  payment  to  the  person  entitled 
on  the  death  of  tenant  for  life,  of  the  capital  of  a 
fund,  was  considered  by  the  Court  of  Appeal  as  a 
final  order  and  appealable  within  twelve  months. (r) 

(551.)  In  case  an  ex  parte  application  is  made  to  Time— 

V  /  J-  ±  i    ^      ^  ...         €3  parte 

the  Court  below  and  refused,  a  similar  application  application. 
may  be  made  to  the  Court  of  Appeal  within  four 
days  from  the  date  of  such  refusal  or  such  enlarged 
time  as  a  judge  of  the  Court  below  or  of  the  Court 
of  Appeal  may  allow,  (s)  The  four  days  mean  days 
during  which  the  Court  of  Appeal  is  sitting. (^) 

(552.)  The  periods  of  twenty-one  days  and  of  one  p^J'^'*''''^— 
year  for  appealing  are  to  be  calculated  from  the  time  computed. 
at  which  the  judgment  or  order  is  signed,  entered, 
or  otherwise  perfected.(i(,)     But  in  case  of  a  refusal 
of  an  application  from  the  date  of  such  refusal,  (v) 

This  latter  clause  has  been  strictly  acted  on  ; 
and  thouo-h  the  Recdstrars  office  was  closed  on  the 
twenty-ftrst  day  where  notice  was  not  served  on 
that  day  the  appeal  was  held  too  late.(w) 

Where  an  interlocutory  motion  was  made  to  vary 
a  chief  clerk's  certificate  and  refused,  and  then  a 
final  order  was  made  on  further  consideration  and 
an  appeal  brought  from  both  orders  after  the  twenty- 
one  days,  it  was  held  to  be  too  late  as  regards  the 
former  order,  and  that  it  was  not  intended  that 
anything  in   the   nature  of  a  finding   or  verdict, 


(r)  Harris  v.  Newton,  21  Sol.  Jour.  630,  A.  C,  and  see  Baring  v. 
Stanton,  20  Sol.  Jour.  5G1,  A.  C,  as  to  quorum  of  three  judges. 

(*■)  Ord.  Iviii,  R.  6,  injra. 

(0  Marcus  v.  General  Steam  Navigation  Co.,  20  Sol.  Jour.  211, 
A.  C. 

(m)  Ord.  Iviii,  R.  11,  part  of,  infra.  See  in  re  Lewer  exjiarte  Gerrard, 
L.  R,  5  Chan.  D.  61;  25  W.  R.  364  A.  C,  and  see  formerly  ex  parte 
Hinton,  L.  R.  19,  Eq.  2G6. 

(v)  Ord.  same  as  above. 

(w)  In  re  Lambert,  L.  R.  5  Chan.  D.  365  ;  25  W.  R.  572. 

T 


410  EXTENDING   TIME. 

Appeals,  although  it  might  really  determine  the  suit,  should 
he  open  on  an  appeal  from  the  final  order,  but 
becomes  conclusive  if  the  time  limited  for  appealing 
from  it  has  expired.  («) 

So  where  the  order  appealed  from  was  made  on  a 
summons  containing  several  applications  and  some 
are  granted  and  some  refused,  it  was  held  that  the 
appeal  as  to  the  latter  should  be  brought  within 
twenty-one  days  from  the  refusal,(2/)  so  where  some 
items  are  admitted  ami  others  not  included. (s) 

This  distinction  as  to  appeals  from  orders  grant- 
ing or  refusing  an  application  was  made  purposel}', 
because  when  an  application  is  granted,  the  exact 
terms  of  the  order  may  be  material  with  regard  to 
the  appeal,  and  in  that  cnse  the  time  to  appeal  does 
not  run  till  the  order  is  perfected  and  appellant  iias 
the  opportunity  of  knowing  its  exact  terms,,  but 
when  refused  nothing  can  turn  on  the  the  terms  of 
the  order. («) 
Extending  (553.)  An  extcusion  of  the  time  for  appealing  can 
now  only  be  given  by  the  Court  of  Appeal.  The 
court  has  refused  to  extend  time  to  appeal  for  a 
mere  inadvertence  or  misapprehension  of  the  party 
or  his  solicitor,  although  it  was  the  first  case  under 
the  new  rule,(6)  but  otherwise  when  the  l^arty  was 
misled  by  the  officer  of  the  court.(e) 

Time  has  been  extended  after  a  year  in  favour  of 

(x)  White  V,  Witt,  L.  R.  5  Chan.  D.  589,  25  W.  R.  435,  21  Sul. 
Jour.  379,  A.  C,  Cummins  f.  Herron,  25  W.  R.  325,  21  Sol.  Jour. 
219,  A.  C. 

(y)  Berdan  r.  Bermingham  Small  Arms  Co.,  20  W.  R.  8!>,  A.  C. 

(3)  Trail  V.  Jackson,  L.  R.  4.  Chan.  D.  7,  21  Sol.  Jour.  28,  A.  C. 

(«)  Swindell  v.  Birmingham  Syndicate,  L.  R.  3  Chan.  D.  lL'7.  24 
W.  R.  911,  21  Sol.  Jour.  720,  A.  C. 

(b)  National  Funds  Assurance  Co.,  L.  R.,  4  Chan.  D.  305;  2:.  W.  R. 
l'2r.  A.  C,  Swindell  v.  Bermingham  Syndicate,  L.  R.,  3  Chan.  D.  127, 
24  \V.  R.  911,  21  Sol.  Jour.  720,  A.  C. 

('•)  The  Phosphate  Sewage  Co.  v.  Ilartmount,  21  Sol.  Jour.  457, 
A.C. 


time 


APPEALS   BY   WAY   OF   NOTICE.  411 

parties  not  served  with  notice  of  decree  but  who    Appmis. 
lately  had  obtained  leave  to  attend  proceedings,  (c?) 

Extension  of  time  to  appeal  after  the  time  limited 
has  expired,  must  be  given  by  "special  leave  of  the 
Court "  of  Appeal,  and  the  Court  in  England  has 
held  it  cannot  do  so  on  an  ex  parte  application,  (e)  and 
that  it  should  be  granted  only  in  cases  like  whera 
the  enrolment  of  a  decree  would  have  been  vacated 
by  reason  of  the  applicant  being  misled  by  the  con- 
duct of  his  opponent,  or  some  mistake  of  an  officer 
or  some  inevitable  accident. (/) 

Time  is  sometimes  enlarged  on  the  terms  of  bring- 
ing into  court  any  money  or  costs  ordered  to  be 
paid.(5f) 

(554.)  All  appeals  to  the  Court  of  Appeal  are  to  Appeals 
be  brought  on  by  notice  of  motion  in  a  summary  notkef  '^ 
way  and  no  petition,  case,  or  other  formal  proceed- 
ing other  than  such  notice  is  necessary.(A) 

The  notice  of  appeal  may  be  amended  at  any 
time,  as  to  the  Court  of  Appeal  may  seem  fit.(?') 

Fourteen  days  notice  of  motion  by  way  of  appeal 
must  be  given  from  a  judgment  whether  final  or 
interlocutory,(j)  andfrom  an  orderof  an  interlocutory 
character  four  days  notice  of  motion.  (Z.;) 

(555.)  The  notice  of  motion  by  way  of  appeal  service  of 
should  be  served  on  all  parties  directly  affected  by  motion, 
the  appeal,  but  it  is  not  necessary  to  serve  parties 
not  so  afiected.(?j 

However,  the  Court  of  Appeal  may  direct  notice 

{d)  Hime  v.  Campbell,  21  Sol.  Jour.  417,  A.  C. 

(0  Evenett  v.  Laurence,  L.  K.,  4  Chan.  D.  139,  25  W.  Pt.  107;  21 
Sol.  Jour.  109,  A.  C. 

(/)  International  Finance  Society  v.  City  of  Moscow  Gas  Co., 
W.  N.  1877,  256,  22  Sol.  Jour.  131,  A.  C. 

((/)  Hall  V.  Smith,  20  Sol.  Jour.  31,  Lush,  J. 

(A)  Sch.  R.  33,  part  of,  Ord.  58,  E.  2.  E. 

(i)  Sch.  R.  34,  part  of. 

0")  Ord.  Iviii,  R.  2,  infra.     Ord.  58,  R.  2.  E.  (^0  lb. 

(0  Sch.  R,  34,  part  of,  Ord.  53,  R.  3,  E. 

T  2 


412  RESPONDENT  NOT   PUT  TO   CROSS   APPEAL. 

Apprais.  to  be  served  on  all  or  any  parties  to  the  action  or 
proceeding  or  upon  any  person  not  a  party,  and  in 
the  meantime  may  postpone  or  adjourn  the  hearing 
of  the  appeal  upon  such  terms  as  may  seem  just, 
and  may  give  such  judgment  and  make  such 
order  as  might  have  been  given  or  made  if  the 
persons  served  with  the  notice  had  been  originally 
parties.  (071) 

Where  a  fund  was  claimed  by  three  parties,  A, 
B,  and  C,  and  the  Vice-Chancellor  decided  in 
favour  of  C,  A  appealing  and  serving  notice  on  C 
only,  the  court  directed  notice  to  be  served  on  B 
also,  and  B  having  been  served  the  court  dismissed 
the  appeal  as  between  A  and  C,  B  then  asked  to  be 
heard  as  against  C,  and  the  court  allowed  this  under 
this  rule  postponing  the  case  for  a  few  days. (71) 
Respon-  (556.)  It  is  uot  neccssarv  for  the  respondent  under 

(lent  not  ^         ,  /  .  „  .  , 

put  to         any   circumstances  to    give    notice  oi  motion    by 

cross 

upiH'iii.  way  of  cross  appeal,  but  if  he  intends  upon  the 
hearing  to  contend  that  the  decision  of  the  Court 
below  should  be  varied,  he  must,  in  case  of  an  appeal 
from  a  final  order,  give  eight  days'  notice,  and  in 
case  of  an  appeal  from  an  interlocutory  order,  two 
days'  notice  of  such  intention  to  any  parties  who 
may  be  affected  by  his  contention.  However,  the 
omission  to  give  this  notice  does  not  dimhiish  the 
powers  of  the  Court,  but  it  may  in  its  discretion, 
be  ground  for  adjournment  of  the  appeal  or  for  a 
special  order  as  to  costs.(o) 

Where  plaintiff  appealed  from  a  dismissal  of  liis 
bill  without  costs,  and  the  Court  of  Appeal  affiimed 
the  decision  without  hearing  defendant's  counsel, 
the  latter  was  not  permitted  to  argue  that  the  bill 

(«/)  Sch.  K.  34,  part  of,  Ord.  58,  R.  .3,  E. 

(70  Hunter  v.  Hunter,  24  W.  R.  504  and  507,  20  Sol.  Jour.  43G, 
A.  C. 

(o)  Sch.,  R.  36,  Ord.  Iviii.,  K.  3. 


SETTING   DOWN   AND   LISTING   APPEAL.  411 

ought  to  have  been  dismissed  with  costs,  having    Appeals. 
given  no  notice  of  his  intention  to  do  so,  and  pro- 
bably if  he  did   it  would  not    be    open    on    ap- 
peal, (o) 

(557.)  The  party  appealing  is  required  to  pro-  Setting 
duce  to  the  proper  officer  of  the  Court  of  Appeal  the  usting 
judgment  or  order,  or  an  office  copy  thereof  appealed  ^^^^^ ' 
from,  and  to  leave  with  him  a  copy  of  the  notice  of 
appeal  to  be  filed ;  and  such  officer  shall  thereupon 
set  down  the  appeal  by  entering  same  in  the  proper 
list  of  appeals,  and  it  will  come  on  to  be   heard 
according  to  its  order  in  the  list,  unless  otherwise 
ordered.  (|>)  It  cannot  come  into  the  list  for  liearing 
before  the  day  named  in  the  notice  of  appeal. (g) 

The  Order  does  not  say  within  what  time  the 
notice  of  appeal  is  to  be  entered  with  the  officer, 

(558.)  No  deposit  is  necessary  now  in  order  to  an  security 
appeal,  but  the  Court  of  Appeal  may,  under  special 
circumstances,  direct  such  deposit  or  other  security 
for  the  costs  of  the  appeal,  as  it  may  think  fit.('j') 

Without  special  circumstances  no  deposit  or 
security  for  costs  can  be  required,  even  in  admiralty 
appeals  where  it  was  the  practice  formerly  to  re- 
quire it,(.s)  and  applications  for  such  security  or 
deposit  ought  not  to  be  rashly  made,  especially 
against  persons  engaged  in  trade. (^) 

These  special  circumstances  are  generally  re- 
ducible to  two  heads,  insolvency,  or  residence  abroad 
of  the  appellant,  (tt)  Where  appellant  was  alleged 
to  be  insolvent,  and  as  evidence  thereof  that  he  had 
been  imprisoned  for  non-payment  of  a  small  debt, 

(o)  Harris  v.  Aaron,  L.  R.,  4  Chan.,  D.  749 ;  25  W.  R.  353 ;  21  Sol. 
Jour.  60  A.  C. 

(rt  Ord.  Iviii.,  R.  4,  infra;  Ord.  58,  R.  8,  E.  (q)  lb. 

(r)  Same  Ord.,  R.  11,  part  of,  infra;   Ord.  58,  R.  15,  E.  part  of. 
(s)  See  Victoria,  L.  R.,  1  Pro.  D.,  280 ;  24  W.  R.,  596  A.  C. 
(i)  Wall  V.  Dunne,  20  Sol.  Jour.  5G1  A.  C. 
(m)  Li  re  Teas  Bottle  Company,  20  SoL  Jour.  584  A.  C. 


414!  SECURITY  FOR   COSTS. 

Appeals,  and  this  was  not  satisfactorily  denied,  the  order  was 
made.(v)  Where  an  appellant  company  had  passed 
a  resolution  to  wind  up,  though  the  assets  might  be 
more  than  sufficient  to  meet  the  respondent's  debts, 
this  was  dealt  with  as  a  case  for  an  order. (w) 

So  where  appellant  was  a  foreigner  domiciled 
abroad,  fa;) 

But  even  where  an  appellant  was  insolvent,  the 
order  has  been  refused  when  the  question  at  issue  was 
one  that  had  not  been  previously  considered  in  a 
Court  of  KxvoY.{y) 

No  leave  is  necessary  to  serve  notice  of  motion 
for  security  for  costs.  (5) 

It  is  too  late  to  apply  after  costs  incident  to  the 
appeal  have  been  actually  incurred  and  the  appeal 
partly  heard. (a) 

All  that  can  be  required  under  the  Rule  is  to 
secure  "  the  costs  to  be  occasioned  by  the  appeal," 
and  it  cannot  be  asked  for  to  cover  the  sum  awarded 
below  or  the  costs  below. 

The  amount  of  security  of  course  depends  upon 
the  nature  and  magnitude  of  the  appeal.  Where  a 
large  sum  of  £65,000  was  ordered  to  be  paid,  and 
several  bankruptcy  petitions  had  been  presented 
against  appellant,  a  sum  of  £200  was  ordered  to  be 
secured  and  proceedings  stayed  meanwhile.(6) 
Where  the  evidence  was  very  voluminous  and  the 

(v)  III  re  Teas  Bottle  Company,  20  Sol.  Jour.  oS-t  A  C. ;  and  see 
Clarke  v.  Roche,  25  W.  R.  309 ;    21  Sol.  Jour.  319,  A.  C. 

{w)  Brown  v.  Brown,  21  Sol.  Jour.  48  A.  C. 

(j-)  Grant  v.  Banque  Fraiico-Egyptienne,  L.I!.,  2  C.  P.  D.,  143 
A.  C. ;  24  W.  R.  339. 

(y)  Rourke  v.  AVliite  Moss  Colliery,  L.  R.,  1  C.  P.  D.,  550. 

(i)  Grills  V.  Dillon,  L.  K.,  2  Ch.  D.  325,  24  W.  R.  481 ;  20  Sol. 
Jour.  412. 

(a)  Grant  v.  The  Banque  Franco-EK.vpticnne,  24  W.  R.,  339  A.  C. 

(i)  Phosphate  Sewage  Comjiany  v.  Hartniont,  L.  R.,  2  Ch.  D.  811  ; 
20  Sol.  Jour.  G05,  A.  C. ;  in  Judd  v.  Green,  20  Sol.  Jour.  500,  a  deposit 
of  £150  was  ordered. 


BY   WAY   OF   RE-HEAPJXG.  415 

appellant  in  humble  circumstances,  the  order  was    Appmu. 
to  lodge  £50  to  meet  the  costs.(c) 

Where  several  respondents  applied,  being  in  the 
same  interest,  the  order  was  for  one  deposit  of 
f20.((0 

The  Court  has  declined  to  order  that  in  default 
of  a  deposit  made,  or  security  given  within  a 
certain  time,  the  appeal  should  stand  dismissed,((') 
but  after  lapse  of  a  reasonable  time,  if  not  complied 
with,  the  respondent  may  apply  to  dismiss  the 
appeal(/)  with  costs  of  the  motion. ((/) 

(559.)  All  appeals  are  to  be  by  way  of  re-hear-  Byway 
ing,(A)  but  the  Court  will  not  re-hear  a  cause  on  the  hearing-, 
ground  of  fraud  in  obtaining  the  decision  below 
which  is  more  properly  the  province  of  the  Court 
of  first  instance  on  a  bill  of  review.(ii) 

It  is  not  open  to  a  party,  therefore,  to  raise  on  the 
appeal  a  case  totally  inconsistent  with  that  which 
he  raised  below,  althouoh  tlie  evidence  mifxht  have 
supported  it.{j)  But  the  Court  may  go  into  fresh 
facts  and  fresh  evidence  in  certain  cases.(/r) 

As  to  hearing  counsel  the  uniform  practice 
derived  from  the  Court  of  Appeal  in  Chancery  in 
England,  is  to  hear  two  counsel   for  each  side.((^) 

(c)  Wilson  V.  Smith,  L.  R.,  2  Ch.  D.  67 ;  24  W.  R.  421  A.  C. 

(d)  Cashing.  Cradock,  20  Sol.  Jour.  723  A.  C.  ;  like  rule  in  Judd  y. 
Green,  20  Sol.  Jour.  500  A.  C. ;  amount  £150. 

(e)  WOsoa  v.  Smith,  supra. 

(J)  Valer.  Oppert,  L.  R.,  5  Ch.  D.  633;  25  W.  R.  610  A.  C. 

{g)  Judd  V.  Green,  L.  R.,  4  Ch.  D.  789  ;  25  W.  R.  293 ;  21  Sol. 
Jour.  257  A.  C. 

(h)  Sch.,  R.  33,  part  of, 

(0  Flower  v.  Lloyd,  L.  R.,  6  Chan.  D.  297;  25  W.  R.  793  A.  C. 

(J)  In  re  Walton,  exp.  Reddish,  L.  R.,  5  Chan.  D.  882;  25  W.  R. 
741;  21  Sol.  Jour.  631  i^.  C. 

{k)  See  Anon.  20  Sol.  Jour.  81  Lush,  J.  ;  Anon.  W.  N.  1875, 
250. 

(I)  Sneesbj-  v.  Lancashire  &  Yorkshire  Ry.  Cy.  L.  R.,  1  Q.  B.  D.  42 ; 
See  Lord  Cairns'  statement,  9  Nov.  1875,  W.  N.  1875,  p.  186. 


416 


HOW   EVIDENCE   BROUGHT   BEFORE   COURT. 


Jppenls. 


Evidence, 

how 

brought 

before 

Court. 


The  practice  in  Ireland  was  similar,  allowing,  where 
the  respondents  had  diverse  interests,  one  counsel  to 
address  the  Court  for  each  in  respect  of  the  special 
case  of  his  client.  Although  only  two  counsel  on 
each  side  can  address  the  Court,  costs  of  a  third 
counsel  have  been  allowed  in  taxation  between 
j)arty  and  party  in  cases  of  difficulty,  (m) 

Cases  will  now  be  listed  in  the  order  in  which 
they  have  been  set  down,  and  of  course  may  be 
advanced  when  circumstances  require. («-) 

The  rule  fixes  no  limit  of  time  for  setting  down 
or  entering  the  appeal. 

The  old  practice  in  England  was,  that  the  party 
moving  should  get  the  appeal  set  down  before  the 
day  named  in  the  notice  of  appeal.  If  the  Court 
be  not  sitting  on  the  day,  then  for  the  next  day 
on  which  it  sat,  and  in  default  the  respondent  is 
entitled  to  have  the  motion  treated  as  abandoned,(o) 
and  may  have  the  costs  of  the  day  by  special  appli- 
cation.(^)  In  Ireland  the  setting  down  of  the 
appeal  was  one  and  the  same  act  with  the  lodging 
of  the  appeal. 

(560.)  When  any  question  of  fact  is  involved  in 
an  appeal  the  evidence  taken  in  the  court  below, 
bearing  on  the  question,  shall,  subject  to  any  special 
order  to  the  contrary,  be  brought  before  the  Court 
of  Appeal  as  follows  : — 

(a).  As  to  evidence  taken  by  aflidavit,  by  the 
production  of  printed  copies  of  such  of  the  affidavits 
as  have  been  printed,  and  ofiice  copies  of  such  of 
them  as  have  not  been  printed. 

(6).  As  to  any  evidence  given  orally,  by  the  pro- 

(.wi)  Robb  V.  Connor,  Ir.  Rep.  9,  Eq.,  573,  M.  R. 

(«)  Ord.  Iviii.,  R.  4.     See  Cox  v.  Barker,  20  Sol.  Jour.  723  A.  C. 

(o)  The  National  Funds  Association  Company,  L.  R,  4  Chan.  D. 
30.-,;  25  W.  R.  151  ;  W.  N.  187C,  287;  21  Sol.  Jour.  109  A.  C. 

(/))  Webb  V.  Mansel,  L.  R.  2  Q.  B.  D.  117  ;  25  W.  R.  389  A.  C  ; 
Price  V.  Price,  21  Sol.  Jour.  478  A.  C. 


HOW  EVIDENCE  BROUGHT  BEFORE   COURT.  417 

duction  of  a  copy  of  the  judge's  notes;  where  the    Appeals. 
appeal  is  from  the  Master  of  the  EoUs  or  the  Vice- 
Chancellor,  the  notes  of  the  clerk  in  court  or  such 
other  materials  as  the  court  may  deem  expedient. (5) 

As  to  'printing  affidavits,  where  the  evidence  was 
very  voluminous,  the  court  intimated  that  it  would 
not  be  necessary  to  have  additional  office  copies  of 
affidavits  taken  out  for  the  members  of  the  court, 
but  would  accept  ordinary  copies  and  briefs  of  junior 
counsel. (r)  In  another  case  where  the  affidavits  used 
below  were  voluminous  and  had  not  been  printed, 
the  Court  of  Appeal  accepted  written  copies. (s) 

As  to  oral  evidence — The  judge's  notes  are  con- 
clusive and  formerly  the  sole  materials  on  which 
the  Court  of  Appeal  could  proceed  unless  the  parties 
agreed  to  use  the  shorthand  writer's  notes. (i) 

An  appeal  to  the  judge's  notes  of  evidence  was 
generally  found  inconvenient.  The  j udges  generally 
refused  to  give  them  to  the  parties  and  merely 
handed  them  to  the  Judges  of  the  Court  of  Ap- 
peal, (tt)  and  the  Court  of  Appeal  in  England  used 
to  decline  to  let  copies  be  taken  for  the  parties,  ob- 
serving that  counsel  were  supposed  to  take  notes 
of  the  evidence  for  themselves. (v) 

Shorthand  Writers  Notes. — Latterly  in  England 
the  Court  of  Appeal  has  always  taken  the  shorthand 
writer's  notes,  probably  because  consent  became 
universal,  so  much  so  that  a  copy  of  the  judge's  notes 
are  not  entered  on  the  order  of  the  judge  below. (w) 

(g)  Ord.  IviiL,  R.  7,  infra. 

(?•)  Crawford  v.  Hornsea  Steam  Brick  and  Tile  Company,  24  W.  R., 
422  A.  C. 

(«)  Sickles  V.  Morris,  24  W.  R.,  102 ;  20  Sol.  Jour.  112,  A.  C. 

{t)  Ex  parte  Gillebrand,  L.  R.,  10  Chan.  52,  per  Lord  Cairns,  L.  C. 

(m)  Woodley  v.  Metropolitan  District  Railway  Company,  20  Sol. 
■Jour.,  450. 

(?;)  Colyer  v.  Lee,  20  Sol.  Jour.  451,  A.  C. 

ly})  Plimpton  v.  Malcomson,  W.  N.,  187G,  89,  M.  R. 

T  3 


418  MAY   RECEIVE   FURTHER   EVIDENCE. 

Appeals.  Where  shorthand  writer's  notes  were  used  the 
costs  of  transcribing  and  printing  them  have  been 
allowed  as  part  of  the  costs  of  the  appeal, (a?)  but  not 
the  costs  of  the  shorthand  writer's  attendance. (2/) 
Our  Order  LXL,  infra,  has,  in  deference  to  the 
direction  given  by  the  J.  A.,  1877,  s.  61,  §  2,  placed 
this  matter  on  a  more  methodical  basis  as  regards 
reporting  evidence  given  on  trials  before  juries  by 
shorthand  writers. (0) 
May  (561.)  The  Court  of  Appeal  has  full  discretionary 

receive  ^  ^  •         p        i  •  i  •  <• 

further  powcr  to  reccivc  further  evidence  upon  questions  of 
fact,  such  evidence  to  be  either  by  oral  examination 
in  court,  by  affidavit,  or  by  deposition  taken  before 
an  examiner  or  commissioner,  (a) 

Whei-e  the  appeal  is  from  a  judgment,  after  tiial 
or  hearing  of  any  cause  or  matter  upon  the  merits, 
further  evidence  (save  as  to  matters  subsequent)  can 
he  admitted  only  on  special  grounds  and  not  with- 
out special  leave  of  the  court.(6) 

Formerly  in  the  Chancery  Appeal  Court  fresh 
evidence,  except  on  some  interlocutory  motions  on 
matters  of  practice,  could  not  be  offered  by  either 
party  without  special  leave,  and  that  leave  was 
seldom  given  except  in  favour  of  documentary  evi- 
dence which  could  not  be  well  manufactured  or 
tampered  with,(c)  but  evidence  actually  taken  before 
the  first  hearing,  though  not  used(c?)  or  entered  on 
the  decree,  has  been  received  on  appeals. (e)     But 

(a-)  Ex  parte  Sawyer,  W.  N.,  1876,  18,  B. 

0/)  Bigsbyu.  Dickenson,  L.  R,,  4  Ch.  D.  24;  25  AV.  E.  8i). 

(2)  Chap,  liv.,  p.  394,  a7ite. 

(a)  Sch.,  E.  35,  part  of ;  Ord.  58,  R.  5,  E.         (i)  fb. 

(c)  See  Wiltsliire  Injn  Works  Company,  L.  R.,  3  Chan.  443;  John- 
son V.  Midland  Great  \\'e»tern  Railway  Company,  5  Ir.  Clian.  Rep.  204, 
Ld.  Chan.  Brady. 

((/)  Glover  v.  Dauberry,  4  De  Gex,  F.  &  J.  501  ;  French  v.  Coppen- 
gcr,  G  Ir.  Chan.  Rep.  577,  Ch.  Ap.  Ct. 

(e)  Johnson  v.  Midland  Great  Western  Railway  Company,  siipi-a. 
Simpson  v.  Frew,  5  Ir.  Chan.  Kep.  517,  L.  C. 


MAY   RECEIVE   FURTHER   EVIDEXCE.  -ill) 

fresh  pai'ol  evidence  or  fresh  affidavits  (unless  to  Appenu. 
identify  documents),  and  which  the  opposite  party 
had  not  opportunity  to  meet  below,  were  usually 
disallowed,(/)  unless  the  opposite  party  consented 
or  acquiesced  by  answering  them  in  the  Court  of 
Appeal.  (5r) 

Evidence  of  facts  occurring  after  the  original  hear- 
ing was  not  admissible, (A)  nor  of  facts  discovered 
after  dec7'ee(i)  as  it  may  be  now. 

Although  it  was  always  competent  to  a  Court  of 
Appeal  to  resort  to  oral  examination  of  a  witness 
who  had  not  been  examined  below,(y)  yei  it  was 
usual  to  refuse  to  do  so, (A')  unless  the  point  was  of 
such  importance,  that  the  court  would,  under  the 
old  practice,  have  directed  an  issue. (?) 

In  a  recent  case  the  Court  of  Appeal  in  England 
gave  leave  to  subpoena  a  witness  who  had  made  no 
affidavit  below  to  attend  for  examination  at  the 
hearing  of  the  appeal,  but  without  jjrejudice  to  the 
question  whether  his  evidence  should  be  admitted 
and  proper  explanation  of  his  not  being  examined 
before,  (m) 

The  Landed  Estates  Court,  Bankruptcy  Court, 
and  Admiralty  Court  Acts,  conferred  on  the  Court 
of  Appeal  in  Chancery  express  power  to  receive  fur- 
ther evidence  if  it  should  think  fit,  and  as  reo^ards 


(/)  Johnson  v.  MiiUand  Great  Western  Railway  Company,  supra. 
Simpson  v.  Frew,  5  Ir.  Chan.  Rep.  517.  L.  C. 

(y)  Bournes  v.  Bournes,  Chan.  Ap.  Court,  25  November,  1869.  See 
Pole  V.  Joel,  2  De  Gex  &  J.,  285. 

Qi)  Lamb  v.  Orton,  33  L.  J.  N.  S.,  Chan.  81. 

(<■)  Barton  v.  Sampson,  10  Ir.  Chan.  Rep.  161,  Chan.  Ap.  Court 
refused.     Miller  v.  Ship  "  Virgo,"  20  Sol.  Jour.  456,  A.  C. 

(;■)  Hope  V.  Threlfall,  33  L.  J.  N.  S.,  631  Ch. 

Qc)  Farran  v.  Mercer,  6  Ir.  Jur.  N.  S.  26,  Ch.  Ap.  Ct. 

(0  Ferguson  v.  Wilson,  L.  R.,  2  Chan.  77,  L.  J.  J.  Xixou  r.  Potts, 
Chan.  Ap.  Ct.  (Ire.),  6  June,  1872. 

{m)  Coal  Economising  Gas  Company,  24  W.  K.,  36  A.  C. 


420 


FURTHER   EVIDENCE   WHEN   WITHOUT   LEAVE. 


Appeals. 


Further 

evidence, 

when 

without 

leave. 


Powers  of 
tlie  Court 
as  to 
amend- 
meat. 


Court  to 
Rive 
proper 
judgment 
though  not 


Cliancery  appeals,  they  being  strictly  re-hearings, 
the  power  of  the  court  to  do  so  was  nndoubted. 

In  Enoland  the  Court  of  Appeal  has  held  that  it 
is  not  necessary  that  any  preliminary  motion  should 
be  made  to  obtain  leave,  but  that  the  appellant  should 
give  notice  to  the  respondent  of  his  intention  to 
make  application  at  the  hearing  to  bring  further 
evidence  before  it,  stating  its  nature  sufficiently. (w) 

(562.)  Further  evidence  in  the  Court  of  Appeal 
may  be  given  without  special  leave  upon  interlo- 
cutory applications,  or  in  any  case  as  to  matters 
which  have  occurred  after  the  date  of  the  decision 
from  which  the  appeal  is  brought.(o) 

This  would  seem  to  cover  the  case  of  a  witness 
on  whose  evidence  the  order  below  was  given  hav- 
ing been,  subsequently  to  decree  convicted  of  per- 

juiy-Ci?) 

(563.)  As  incident  to  the  re-hearing  by  way  of 
appeal,  the  Court  of  Appeal  has  all  the  powers  and 
duties  as  to  amendment  and  otherwise  of  the  court  of 
first  instance.(g)  Thus  the  Court  of  Appeal  when  of 
opinion  that  the  facts  were  not  fully  before  it  or 
that  the  pleadings  did  not  raise  all  the  material 
issues,  may  order  the  hearing  to  stand  over,  with 
liberty  to  amend  the  statement  of  claim. 

But  except  as  incident  to  the  appeal,  the  court 
can  exercise  no  first  instance  jurisdiction,  ex.  <jr.,  it 
cannot  make  an  order  on  an  original  petition,  except 
on  appeal. (i') 

(564.)  The  Court  of  Appeal  has  power  to  give 
any  judgment  and  make  any  order  which  ouglit  to 
have  been  made,  and  to  make  sucli  fnrtli<'r  or  other 

(;/ )  Justice  V.  jNIersey  Steel  and  Iron  Company,  24-  W.  It.  l!t:i ;  20 
Sol.  Jour.  151,  A.  C.     Hastie  v.  Hastie,  L.  R.  1  Ch.  D.  nr.i,  A.  C. 

(o)  Sch.  R.  35,  part  of.     Ord.  58,  R.  5  E. 

{p)  Needham  v.  Smith,  2  Vern.  403.  (q)  Sch.  K.  o.">. 

(r)  Dunraven-Adarc  Coal  and  Iron  Co.,  W.  N.  1875.  rj2,  24  W., 
R.  ;'.7,  A.  C. 


POWER  AS   TO   COSTS.  421 

order  as  tlie  case  may  require,  and  this  power  may    Appeals. 
be    exercised,  notwithstanding  that  the  notice  of  asked  for, 
appeal  be,  that  part  only  of  the  decision  may  be  JartieTwho 
reversed  or  varied,  and  it  may  be  exercised  in  favour  Ijppg^^"^. 
of  all  or  any  of  the  respondents  or  parties  although 
such  respondents  or  parties  may  not  have  appealed 
from  or  complained  of  the  decision,  (s) 

Thus  the  court  may  vary  a  decree  in  favour  of  the 
respondent  as  against  the  appellant  independently 
of  any  notice  by  him,(i)  but  as  regards  his  co- 
respondent or  third  parties,  ex.  gr.,  creditors  not 
before  the  court,  it  is  a  different  matter.  (7^) 

(565.)  The  Court  of  Appeal  has  power  to  make  J'J'^^^^^^" 
such  order  as  to  the  whole  or  any  part  of  the  costs 
of  the  appeal  as  may  seem  just.('y) 

The  modern  rule  as  to  costs  in  the  Chancery 
Appeal  Court  was,  that  they  almost  invariably 
folio  wed,  and  unless  underveryspecial  circumstances, 
were  awarded  according  to  the  result,  as  on  writ  of 
error  at  law,  the  Common  Law  Courts  following  the 
same  rule  as  to  appeals  from  rulings  as  to  new 
trials,  (ir) 

In  England  the  rule  is  applied  to  appeals  in 
admiralty  cases  notwithstanding  the  old  practice 
of  the  Privy  Council  which  refused  costs  to  a  suc- 
cessful appellant,  where  the  appeal  was  about  amount 
of  salvage,  (a;) 

(oQG.)  Where  the  evidence  has  not  been  printed  Printing 

^  ■'  .  evidence 

in  the  court  below,  the  court  below  or  a  judge  for  an 


appeal. 


(s)  Sch.  R.  35,  part  of. 

(<)  Kevan  v.  Crawford,  21  Sol.  Jour.  668,  A.  C.  See  Watts  v. 
Symes,  1  De  Gex,  M.  and  G.  240;  Sherwin  v.  Shakespear,  5  De  Gex, 
M.  and  G.  517. 

(m)  See  ex  parte  Stirling,  6  Ir.  Chan.  Rep.  180,  Chan.  Ap.  Court. 

(y)  Sch.  R.  35,  part  of. 

(w)  Walker  v.  Bartlett,  18  C.  B.  845. 

(x)  The  National  Steam  Ship  Co.  v.  Owners  of  "City  of  Berlin," 
L.  R.  2  Prob.  Div.  187,  A.  C. 


422 


INTERLOCUTORY   ORDERS   UNAPPEALED    FROM. 


Appeals. 


Inter- 

locutory 

orders  uu- 

appealed 

from 

not  to 

prejudice 

appeal 

from  final 

order. 


Appeal  is 
no  stay  of 
proceed- 
ings. 


thereof  or  the  Court  of  Appeal  or  a  judge  thereof 
may  order  the  whole  or  any  part  thereof  to  be 
printed  for  the  purpose  of  the  appeal.  But  any 
party  printing  evidence  for  the  purpose  of  an  appeal 
without  such  an  order  will  have  to  bear  the  costs  of 
it  unless  the  Court  of  Appeal  or  a  judge  thereof 
shall  otherwise  order. (?/) 

The  cost  of  transcribing  and  printing  short  hand 
notes  of  viva  voce  evidence  has  been  allowed,  the 
transcript  being  bona  fide  taken  for  the  use  of  the 
court  and  largely  used.(3) 

(5G7.)  An  interlocutory  order  or  rule  from  which 
there  has  been  no  appeal  does  not  operate  so  as  to 
bar  or  prejudice  the  Court  of  Appeal  from  giving 
such  decision  upon  the  appeal  as  may  be  just.(«) 
Under  the  old  procedure  an  appeal  from  a  decree 
involved  a  review  of  all  interlocutory  orders  which 
depended  for  their  operation  on  the  decree  ;(6)  but 
no  prior  decree  unless  specially  included  in  the 
appeal. (c)  But  where  a  decree  founded  upon  issues 
found  by  a  jury  was  appealed  from  it  was  not  open 
to  consideration  whether  a  new  trial  should  have 
been  given.  (cZ) 

The  present  rule  seems  to  be  framed  on  the  fact 
that  interlocutory  orders  are  not,  per  se,  appealable 
after  a  limited  time,  and  it  might  be  contended  that 
after  that  time  they  interposed  a  bar  to  an  appeal 
on  the  merits  generally. 

5(38.  An  appeal  does  not  operate  as   a  stay  of 


(y)  Ord.  Iviii.,  R.  8,  infra. 

(s)  Caerphilly  v.  Collieries  Co.,  ex  parte  Pearson,  25  W.  R.  G18 
A.  C.  See  Bigsby  v.  Dickenson,  L.  R.  4  Ch.  D.  L'-t,  25  W.  R.  89, 
A.  C. 

(a)  Ord.  Iviii.,  R.  10,  infra. 

(b)  Beavan  v.  Countess  of  Mornington,  8  II.  L.  C.  525,  and  see 
Corr  V.  Corr,  Ir.  Rep.  7  Eq.  397,  M.  R. 

(f)  Callaghan  v.  Callaghan,  S  CI.  and  F.  Hi. 
(d)  Feruie  v.  Y'jung,  L.  R.  1  II.  L.  G3. 


APPEAL   IS  NO   STAY   OF   PROCEEDINGS.  423 

execution  or  of  proceedings  under  the  decision  Aj.peoJs. 
appealed  from,  except  so  far  as  the  Court  appealed 
from,  or  any  Judge  thereof,  or  the  Court  of  Appeal 
may  so  order,  and  no  intermediate  act  or  pro- 
ceeding will  be  invalidated,  except  so  far  as  the 
Court  appealed  from  may  direct. (d) 

This  was  the  rule  of  procedure  both  in  Chancery 
and  at  Common  Law.  In  the  latter  bail  in  error 
was  a  stay  of  execution  on  the  judgment,  but  not  a 
stay  of  proceedings  otherwise,  ex.  gr.,  as  to  a  new 
trial.(/)  Under  this  rule  it  is  intended  that  notice 
of  appeal  shall  not  prevent  the  party  who  has 
obtained  judgment  in  his  favour  from  proceeding 
to  execution,  and  the  Court  of  Appeal  will  not 
order  a  stay  without  a  substantial  reason. (^) 

The  application  should  be  made  to  the  Judge  in 
the  Court  below  in  the  first  instance,(/i)  but  when 
afterwards  made  to  the  Court  of  Appeal  it  is  not  by 
way  of  appeal,  but  as  a  primary  application. (i) 

The  application  must -be  made  on  notice,  and  the 
Court  will  not  grant  it  exparte,(j)  but  may  give 
leave  to  serve  a  short  notice  of  motion. (/;) 

An  order  to  stay  proceedings  has  been  made  where 
they  would  render  the  appeal  nugatory,  ex  gr., 
where  the  order  below  was  for  an  inspection  by 
plaintiff  of  defendant's  process  of  manufacture,  on 
an  allegation  of  infringement  of  plaintifi"s  patent, 
in  which  case  if  the  order  happened  to  be  wrong  the 

(e)  Ord.  Iviii.  R.  12,  in/ra. 

(f)  See  Callan  v.  Marum,  Ir.  Rep.,  5  Com.  Law,  115  Q.  B. 

(.7)  Griffiths  V.  Taylor,  20  Sol.  Jour.  586,  C.  P.  D. ;  Republic  of 
Peru  V.  Weguelin,  24  W.  R.  297  ;  20  Sol.  Jour.  292. 

(A)  Cooper  v.  Cooper,  L.  R.,  2  Ch.  D.  492  ;  20  Sol.  Jour,  469. 

(j)  Maclean  v.  Naughau,  20  Sol.  Jour.  723  A.  C. ;  Cooper  u.  Cooper, 
stipra. 

(J)  Maclean  v.  Naughan,  supra ;  Republic  of  Peru  v.  Weguelin, 
supra ;  see  Ord.  Iviii.  R.  14  and  Ord.  lii. 

(k)  Maclean  v.  Naughan,  supra  ;  Cooper  v.  Cooper, Si(/j;'«. 


424  APPLICATION  TO  COURT  BELOW. 

Appeals,  injury  done  to  the  appellant  defendant  might  be 
irremediable.  (Z)  So  where  the  plaintiff  respondent 
after  judgment  on  demurrer  in  his  favour,  was  pro- 
ceeding to  try  issues  in  fact,  and  tax  his  costs, 
which  would  be  nugatory  if  the  judgment  was 
wrong.(77i) 

The  order  when  made  is  usually  made  on  terms 
of  applicant  bringing  money  into  Court,  (ii)  unless 
the  appeal  is  clearly  frivolous,  (o) 
When  (56.9.)  Whenever  an  application  under  the  rules 

opeii"aVtT  of  Ord.  58,  may  be  made  either  to  the  Court  below, 
App?a"^  o^  to  the  Court  of  Appeal,  or  to  a  Judge  of  the 
below '*  Court  below,  or  of  the  Court  of  Appeal,  it  should  be 
to  the         made  in  the  first  instance  to  the  Court  or  Judge 

latter  first. 

below(.p) 

The  second  motion  to  the  Court  of  Appeal  is 
deemed  an  original  and  not  an  appeal  motion.(g') 

(0  Flower  v.  Lloyd,  20  Sol.  Jour.  584  A.  C. ;  W.  N.  1877,  81 
V.  C.  M.,  S.  C. ;  Phosphate  Sewage  Cy.,  W.  N.  1876, 192;  20  Sol. 
Jour.  603  A.  C. 

{m)  Grant  v.  The  Banque  Franco- Egyptienne,  20  Sol.  Jour.  298, 
W.  N.  1876,  74. 

(n)  Cooper  v.  Cooper,  24  VV.  R.  628,  W.  N.  1876,  149  A.  C.  sed 
vide  Southwell  v.  Rowditch,  W.  N.  1876,  38  ;  21)  Sol.  Jour.  259. 

(o)  Phosphate  Sewage  Cy.  v.  Hartmont,  24  W.  K.  530,  V.  C.  M., 
S.  C,  W.  N.  1876,  192  ;  20  Sol.  Jour.  603  A.  C. 

0^)  Ord.  Iviii.,  R.  13.  infra. 

(jl)  See  Maclean  v.  Naughan,  supra  ;  Cooper  v.  Cooper,  supra. 


[     425     ] 

CHAPTER  LVIII. 
Final  Appeal  to  House  of  Lords. 

570.  Appeal  to  House  of  Lords  from  Court  of  Appeal,  p.  425 

571.  No  direct  Appeals  from  subordinate  Courts,  425. 

572.  Time  to  appeal,  425. 

573.  Stay  of  Execution,  426. 


• 


(570.)  All    decisions,    judgments,    decrees,    and  ^PP^f  Jj- 
orders  of  the  Court  of  Appeal  are  subject  to  appeal  Lords  from 

'■  ^  "^  -^  Court  of 

to  the  House  of  Lords  in  the  cases  and  under  the  Appeal, 
conditions  in  and  under  which  the  like  decisions, 
Szc,  of  the  Court  of  Appeal  in  Chancery,  or  of  the 
Court  of  Exchequer  Chamber   would   have    been 
subject,  (rt) 

(571.)  Except  as  to  error  from  the  Crown  side  of  No  direct 

^  '^  ^  ^  appeal 

the  Queen's  Bench  Division  in  the  cases  already  men-  from  sub- 
tioned,(6)  neither  error  nor  an  appeal  can  be  taken  courts, 
to  the  House  of  Lords  in  the  first  instance  from 
any  judgment,  decree,  or  order  made  subsequent  to 
the  commencement  of  the  J.  A.  (i.e.  1st  January, 
1878),  by  the  High  Court  of  Justice,  or  any  Division 
or  Judge  thereof,  or  of  the  Courts  of  Admiralty  or 
Bankruptcy,  and  appeals  from  Divisions  must  in  all 
cases  henceforth  be  brought  only  to  the  Court  of 
Appeal,  and  not  directly  to  the  House  of  Lords  or 
Queen  in  Council,  (c) 

(572.)  Under  the  standing  orders  of  the  House  of  Time  to 

^  ■^  °  .        appeal. 

Lords  no  petition  of  appeal  can,  unless  otherwise 
specially  provided  by  some  statute,  be  received 
unless  lodged  in  the  Parliament  office  for  presenta- 
tion to  the  House,  within  one  year  from  the  date  of 
the  last  decree,  order,  or  judgment  appealed  {rom.(d) 
If  the  period  expires  during  the  recess  of  the 
House,  it  is  extended  to  the  third  sitting  day  of  the 

.      (a)  J.  A.  1877,  s.  86. 

(6)  Ante  p.  154  (190),  vide  J.  A.,  1877,  s.  50,  §  2. 

(r)  J.  A.,  1877,  s.  86,  §  2. 

(d)  See  Standing  Order  1,  under  Appellate  Jurisdiction  Act,  1876. 


42G 


STAY   OF   EXECUTIOX. 


Final 
Apjjeal  to 
House  of 

Lnrrtf. 


Stay  of 
execution. 


next  ensuing  meeting  of  the  House. (e)  In  cases  in 
which  the  person  entitled  to  appeal  is  within  the 
age  of  twenty-one  years,  or  covert,  non  compos 
mentis,  imprisoned,  or  out  of  Great  Britain  and 
Ireland,  an  appeal  may  be  brought  within  one  year 
next  after  the  disability  or  absence  has  ceased,  but 
in  no  case  of  absence  is  a  longer  time  allowed  than 
five  years  from  last  decree. (/) 

(573.)  If  the  appeal  be  from  a  judgment  originally 
that  of  Common  Law  Division,  and  it  is  desired  to 
stay  execution,  bail  in  error  must  be  given  under  the 
old  practice,  and  if  the  time  is  passed  for  that,  the 
party  must  apply  to  the  division  to  which  the  action 
is  attached,(<)') 

If  from  the  Chancery  Division,  whether  affirmed 
or  reversed  in  the  Court  of  Appeal,  it  would  seem 
the  Court  of  Appeal  has  jurisdiction  to  stay  execu- 
tion. (A) 


Inter- 
pleader 
continued 
and 
(.'Xtended. 


CHAPTER  LIX. 
Interpleader. 

574.  Interpleader  continued  and  extended,  p.  426. 


(57-i.)  The  procedure  and  practice  used  before  the 
[tassing  of  the  Judicature  Act,  with  respect  to  inter- 
pleader, by  Courts  of  Common  Law  in  Ireland,  is 
now  applicable  to  all  the  divisions  of  the  High  Court 
of  Justice,  and  the  application  by  a  defendant  may 
be  made  at  any  time  after  being  served  with  a  writ 
of  summons,  and  before  delivering  a  defence. (a) 

(e)  Standing  H.  L.  Older  vii. 

(/)  Standing  Order  II.  L.  I. 

{g)  Justice  v.  Mersey  Steel  and  Iron  Works,  T/.  R.  1  C.  V.  D.  o'o, 
24  W.  R.  955,  A.  C. 

(h)  Morgan  v.  Elfonl,  L.  R.,  4  Glum.  D.  352,  25  W.  R.  13G  ;  21 
Sol.  Jour.,  2G  A.  C. 

(a)  Sch.,  R.  12.      Ord.  1,  II.  2,  E. 


[     427     ] 

CHAPTER  LX. 
Remitter. 

575.  Powers  conferred  by  C.  L.  Pro.  Act,  1870,  p.  i2'i 

576.  Ejectment  for  Non-payment  of  Rent,  427. 

577.  Detinue  and  certain  Breaches  of  Contract,  427. 


(575.)  The  powers  conferred  by  the  5  &  u  sections  Power  to 
of  the  Common  Law   Procedure   Act,  1870,  upon  actions  to 
the  superior  Courts  of  Common  Law  and  the  judges  civil  Bin 
of  same,  of  remitting  certain  actions  to  be  tried  in  ^°^^^^- 
Civil  Bill  Courts,  are  made  applicable  to  the  High 
Court  of  Justice,   the   Divisions   thereof,  and  the 
the  judges  of  the  divisions  respectively  in  the  same 
manner  as  formerly  to  the  Superior  Courts  of  Com- 
mon Law  and  the  judges  of  same  respectively. (6) 

(576.)  The  power  of  remitting  actions  to  be  tried  Ejectment 
in  the  Civil  Bill  Courts,  has  been  extended  so  as  payment 
to  include  ejectments  for  non-payment  of  rent  com- 
menced or  pending  in  the  High  Court  of  Justice 
where  the  same  shall  be  within  the  jurisdiction  of 
the  Civil  Bill  Courts,  and  may  be  exercised  upon 
such  application,  and  in  such  manner  as  may  be 
provided  by  general  rules  of  court.(c) 

(577.)  Under  the  County  Officers  and  Courts  (Ire-  Detinue 
land)  Act,  1877,  the  provisions  of  the  Com.  Law  breaciies  of 
Pro.  (Ireland)  Act,  3  870,  as  to  remitter  of  actions,  *^°"  ^^'^ ' 
are  extended  to  actions  of  detinue,  and  for  breaches 
of  contract   where   the    claim    is   for  unliquidated 
damages,  and  the  power  of  the  Civil  Bill  Court  as 
to  the  amount  of  damages  to  be  awarded,  is  made 
co-extensive  with  that  of  the  Superior  Court.(cZ) 

(6)  J.  A.,  1877,  s.  GO,  §  2.  (c)  40  &  41  Vic,  c.  50,  s.  51. 

((i)  lb.,  sec.  52. 


J 


[     429     ] 

SUPREME  COURT  OF  JUDICATURE  ACT 

(IRELAND),  1877. 

(40  &  41  Vict.,  c.  57.) 


ARRANGEMENT  OF  CLAUSES. 


Preliminary. 

Section.  Page 

1.  Short  title,     .             .  .            .            .             .            .432 

2.  Commencement  of  Act,  .....     432 

3.  Interpretation  of  terms,  .....     432 

Part  I. 

Constitution  and  Judges  of  Court  of  Judicature. 

i.  Union  of  exii5ting  Courts  into  one  Supreme  Court  of  Judicature,     435 

5.  Division  of  Supreme  Court  into  a  Court  of  original  and  a  Court 

of  appellate  jurisdiction,    .....  435 

6.  Constitution  of  Higli  Court  of  Justice  in  Ireland,       .  .  435 

7.  As  to  Judges  of  Landed  Estates  Court,  .  .  .  436 

8.  As  to  Judges  of  Court  of  Bankruptcy,  .  .  .  437 

9.  As  to  existing  Judge  of  High  Court  of  Admiralty,    .  .  438 

10.  Constitution  of  Court  of  Appeal,        ....     439 

11.  Vacancies  by  resignation  of  Judges,  and  effect  of  vacancies 

generall)',  .......  440 

12.  Qualitications  of  Judges,        .....  440 

13.  Tenure  of  office  of  Judges,  and  oaths  of  office,  .  .  441 

14.  Pi-ecedence  of  Judges,  .....  441 

15.  Saving  of  rights  and  obligations  of  existing  Judges,  .  441 

16.  Provisions  for  extraordinary  duties  of  Judges  of  the  former 

Courts,      .......  442 

17.  Salaries  of  certain  existing  Judges,    ....  443 

18.  Salaries  of  future  Judges,       .....  443 

19.  Retiring  pensions  of  future  Judges  of  High  Court  of  Justice, 

and  ordinary  Judges  of  Court  of  Appeal,  .  .     444 

20.  Salaries  and  pensions  how  to  be  paid,  .  .  .     444 

Part  II. 
Jurisdiction  and  Law. 

21.  Jurisdiction  of  High  Court  of  Justice,  .  .  .  445 

22.  Jurisdiction  not  transferred  to  High  Court,  .  .  446 

23.  Jurisdiction  transferred  to  Court  of  Appeal,  .  .  446 

24.  Appeals  from  High  Court,      .....  447 

25.  Transfer  of  pending  business,  ....  447 

26.  Rules  as  to  exercise  of  jurisdiction,    ....  448 

27.  Law  and  equity  to  be  concurrently  administered,       .  .  449 

28.  Rules  of  law  upon  certain  points.     Administration  of  assets 

of  insolvent  estates.  Statutes  of  Limitation  inapplicable 
to  express  trusts.  Equitable  waste.  INIerger.  Suits  for 
possession  of  land  by  mortgagors.  Assignment  of  debts 
and  choses  in  action.  Stipulations  not  of  the  essence  of 
contracts.  Injunctions  and  receivers.  Damages  by  col- 
lisions at  sea.    Infants.    Cases  of  Conflict  not  enumerated,     451 


430         SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 


Part  III. 
Sittings  and  Distrihution  of  Business. 

Section. 

•I'd.  Abolition  of  terms,     ...... 

30.  Vacation,       .  .  .... 

31.  Sittings  in  vacation,  ..... 

32.  Jurisdiction  of  Judges  of  High  Court  on  circuit, 

33.  Sittings  for  trial  by  jury  in  Dublin, 

34.  Divisions  of  the  High  Court  of  Justice, 

35.  Rules  of  Court  to  provide  for  distribution  of  business, 

3G.  Assignment  of  certain  business  to  particular  Divisions  of 
High  Court,  subject  to  rules,  .... 

37.  Provision  as  to  option  for  any  plaintiff  (subject  to  rules)  to 
choose  in  what  Division  he  will  sue, 

3S.  Power  of  transfer,       ...... 

39.  Directions  as  to  procedure  before  Land  Judges, 

40.  Application  to  extend  receiver  shall  be  made  by  summary 

motion  to  a  Land  Judge  unless  otherwise  ordered  by  Judge, 

41.  Sittings  in  Dublin  and  on  circuits,      .... 

42.  Provisions  of  21  &  22  Vict.,  c.  27,  and  of  25  &  26  Vict.,  c. 

46,  to  apply  to  this  Act,    ..... 

43.  Rota  of  Judges  for  election  petitions, 

44.  Powers  of  one  or  more  Judges  not  constituting  a  Divisional 

Court,        ....... 

45.  Divisional  Courts  of  the  High  Court  of  Justice. 

46.  Divisional  Courts  for  business  of  Queen's  Bench,  Common 

Pleas,  and  Exchequer  Divisions,   .  .  .  . 

47.  Distribution  of  business  among  the  Judges  of  tlie  Chancery 

and  Probate  Divisions  of  the  High  Court, 

48.  Cases  and  points  may  be  reserved  for  or  directed  to  be  argued 

before  Divisional  Courts  or  Courts  of  Appeal. 

49.  Land  cases  reserved,  ...... 

50.  Provision  for  Crown  cases  reserved, 

51.  Motions  for  new  trials  to  be  heard  by  Divisional  Courts, 

52.  What  orders  shall  not  be  subject  to  appeal,    . 

53.  Costs,  ....... 

54.  As  to  discharging  orders  made  in  Chambers, 

55.  Provision  for  absence  or  vacancy  in  the  office  of  a  Judge, 

56.  Power  of  a  single  Judge  in  Court  of  Appeal, 

57.  Constitution  of  Court  of  Appeal  when  hearing  appeals, 

58.  Arrangements  for  business  of  Court  of  Appeal, 


Page 
454 
454 
455 
455 
456 
456 
458 

458 

460 
461 
461 

462 
463 

463 
464 

464 
464 

465 

465 

466 
467 
467 
467 
468 
468 
468 
46!) 
469 
469 
469 


Part  IV. 
Trial  and  Procedure. 

59.  Assessors,       ....... 

60.  Provisions  as  to  arbitration,  &c.,        .... 

61.  Provision  as  to  making  of  Pules  of  Court  before  or  after  tlic 

commencement  of  the  Act,  .... 

62.  Circuits  and  Assizes,  ..... 

63.  Winter  Assizes,  ...... 

64.  Rules  of  C(mrts  of  Probate  and  for  Matrimonial  Cau>es  to  bo 

rules  of  the  High  Court.    ..... 

G5.  Criminal   procedure,  subject  to  future  rules,  to  remain  un- 
altered,     ....*.. 

66.  Act  not  to  affect  rules  of  evidence,      .... 

67.  Savin"-  of  existing  procedure  of  Courts  when  not  inconsistent 

with  this  Act  or  Rules,      ..... 


470 

470 

470 
472 
473 

473 

473 
473 

474 


40  &  41  Vict.,  c.  57. 


431 


Section.  Page 

68.  Additional  power  as  to  regulation  of  practice  and  procedure 

by  Rules  of  Court,  .  .  .  •  .  .     47-t 

69.  Orders  and  Rules  to  be  laid  before  Parliament,  and  may  be 

annulled  on  address  from  either  House,      .  .  .     47-1: 

70.  Councils  of  Judges  to  consider  procedure  and  administration 

of  justice,  .  .  .  .  .  .474 

71.  Acts  of  Parliament  relating  to  former  Courts  to  be  read  as 

applying  to  Courts  under  this  Act,  .  ,  -     47o 


73. 
74. 
75. 

76. 

77. 
78. 


Part  Y. 
Officers  caul  Offices. 

Transfer  of  existing  staff  of  officers  to  Court  of  .Judicature, 

Appointment  of  future  officers  of  Supreme  Court, 

Powers  of  commissioners  to  administer  oaths. 

Receiver- Master,        .... 

Salaries  and  pensions  of  officers, 

Clerks  of  Assize  and  Nisi  Prius, 

Solicitors  and  attorneys, 


Part  VI. 

Jurisdiction  of  Inferior  Courts. 
79.  Rules  of  law  to  apply  to  inferior  Courts, 


Part  VII. 

3fiscellaneous  Frovisions. 

80.  Transfer  of  books  and  papers  to  Court  of  .Judicature, 

81.  Saving  as  to  circuits,  &c.,       .... 

82.  Saving  as  to  Lord  Chancellor, 

83.  Provisions  as  to  Great  Seal  being  in  commission, 


Part  IX. 

Unclaimed  Dividends  in  Banhruptcy. 

85.  Amendment  of  the  Irish  Bankrupt  and  Insolvent  Act,  1857, 
with  respect  to  the  unclaimed  dividend  account,    . 


Part  X. 
Final  Appeal. 

Final  appeal  to  the  House  of  Lords,  . 

Schedule  of  Kui.es, 


47G 
480 
483 
4>3 

487 
487 
487 


488 


489 

489 
489 
490 


Part  VIII. 

Court  Fees. 

84.  Fixing  and  collection  of  fees  in  High  Court  and  Court  of 

Appeal,     ...  T  ...     490 


4'J2 


493 
494 


432    SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 


40  &  41  Victoria,  Chapter  57. 


An  Act  for  the  constitution  of  a  Supreme  Court  of 
Judicature,  and  for  other  purposes  relating  to  the 
better  Administration  of  Justice  in  Ireland. 

[14th  August,  1877.] 

Preamble.  Whereas  it  is  expedient  to  constitute  a  Supreme  Court 
of  Judicature,  and  to  make  provision  for  tlie  better 
administration  of  jvistice,  in  Ii'eland  : 

Be  it  therefore  enacted  by  the  Queen's  most  Excellent 
Majesty,  by  and  Avith  the  advice  and  consent  of  the 
Lords  Sphitual  and  Temporal,  and  Commons,  in  this 
present  Parliament  assembled,  and  by  the  authority  of 
the  same,  as  follows  : 

Preliminary. 
Section  1.        1.  This  Act    may  be   cited  for   all    purposes   as   the 
ShoiTtTtle.   "Supreme  Coui-t  of  Judicature  Act  (Ireland),  1877." 
Commence-       2.  This  Act,  except  where  otherwise   expressly  pro- 
nient  of       vided,  shall  commence  and  come  into  operation  on  the 
'^^'  first   day  of  January,   one  thousand   eight  hundred   and 

seventy-eight, 
interpreta-       3.  In  the  construction  of  this  Act,  unless  there  is  any- 
tion  of         thing  in  the  subject  or  context  repugnant  thereto,  the 
J  \    1870  several  expressions  hereinafter  mentioned  shall  have,  or 
s.  100.        '  include,  the  meanings  follo^ving;  (that  is  to  say,) 
Chancery.         ''  High  Coui-t  of  Chancery  "  and  "  Court  of  Chancery  " 
respectively  shall  mean  the  High  Court  of  Chan- 
cery  in    Ireland,    and    shall    include   the    Lord 
Chancellor. 
Queen's  "  Court  of  Queen's  Bench  "  shall  mean  the  Court  of 

i^ench.  Queen's  Bench  in  Ireland. 

Common  "  Court  of  Common  Pleas  "  shall    mean  the  Court  of 

Pleas.  Common  Pleas  in  Ireland. 

Exchequer.      "  Court  of  Exchecpier  "  shall  mean  the  Court  of  Ex- 
chequer in  Ireland. 
Admiralty.       "  High   Court  of  Admu'alty  "    shall  mean   the    High 

Court  of  Admiralty  of  Ireland. 
I'robate.  "  Court  of  Probate  "  shall  mean  the  Court  of  Probate 

in  Ireland. 


40  &  41  Vict.,  c.  57.  433 

"  Court  for  Matrimonial  Causes  and  Matters  "  shall    Section  3. 

mean   the    Court    for   Matrimonial   Causes    and  jiafrT" 
Matters  in  Ireland.  .  moniai 

"  Landed  Estates    Court  "    shall    mean    the    Landed  ^''"'''• 

Estates  Court,  Ireland.  ^^_ 

"  Court    of   Bankruptcy "    shall    mean    the    Court    of  Bank- 
Bankruptcy  in  Ireland.  mptcy. 
"  Lord  Lieutenant "  shall  mean  the  Lord  Lieutenant 

or  other  Chief  Governor  or  Governors  of  Ireland 

for  the  time  being. 
"  Lord  Chancellor "   shall   mean   Lord   Chancellor   of  Lord 

Ireland,   and  shall  include  Lords  Commissioners  ClJ:"icelIor. 

and  Lord  Keeper  of  the  Great  Seal  of  Ireland. 
"The  Lord  Chief  Justice"  shall  mean  the  Lord  Chief 

Justice  of  Ireland. 
"  Master  of  the   Rolls  "  shall  mean  the  Master  of  the 

Rolls  in  Ireland. 
"  Lord  Justice  of  Appeal  "  shall  mean  the  Lord  Justice 

of  Appeal  in  Chanceiy  in  Ireland. 
"  Vice-Chancellor  "  shall  mean  the  Vice-Chancellor  of 

Ireland. 
"High  Court  "shall  mean  Her  Majesty's  High  Court  Wi.crh 

of  Justice  in  Ireland  established  by  this  Act.  t;oart. 

"Court  of  Appeal"  shall  mean  Her  Majesty's  Court 

of  Appeal  in  Ireland  established  by  tlais  Act. 
"  The   Treasury "  shall   mean   the    Commissioners    of 

Her  Majesty's    Treasury  for  the  time  being,  or 

any  two  of  them. 
"  Bules  of  Court "  shall  include  forms.  'R\\\es  of 

"Cause"    shall    include    any   action,    suit,    or   other    °"^*' 

original    proceeding    between    a    plaintiff  and    a 

defendant,  and    any  criminal  proceeding  by  the 

Cx'own. 
"  Suit  "  shall  include  action.  Suit. 

"  Action  "  shall  mean  a  civil  proceeding  commenced  by  Action. 

writ,  or  in  such  other  manner  as  may  be  prescribed 

by  Bules  of  Court,  and  shall  not  include  a  criminal 

proceeding  by  or  in  the  name  of  the  Crown. 
"Plaintiff"    shall  include   every   person   asking   any  Plaintiff. 

relief  (otherwise  than  by  way  of  counter-claim  as  a 

defendant)  against  any  other  person  by  any  form 

of  proceeding,   whether   the   same   be   taken  by 

cause,(a)  action,  suit,  petition,  motion,  summons, 

or  otherwise. 


(a)  Sic.    Not  in  ED^liah  Act. 


434)        SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 


Section  3. 
Petitioner. 

Defendant. 
Tarty. 

flatter, 
rieading. 

Judgment. 
Oath. 


Existing. 


Land. 


Officers. 


'  Petitioner "  sliall  include  every  person  making  any 
apj)lication  to  the  Court,  either  by  petition, 
motion,  or  summons,  otherwise  than  as  against 
any  defendant. 

•  Defendant"  shall  include  every  person  served  with 
any  writ  of  summons  or  jirocess,  or  served  with 
notice  of,  or  entitled  to  attend  any  proceedings. 

■  Party  "  shall  include  every  person  served  with  notice 

of,    or   attending    any    proceeding,    although   not 
named  on  the  Record. 

jMatter  "  shall  include  every  proceeding  in  the  Court 
not  in  a  cause. 

Pleading"  shall  include  any  petition  or  summons,  and 
also  shall  include  the  statements  in  writing  of  the 
claim  or  demand  of  any  plaintiff",  and  of  the  de- 
fence of  any  defendant  thereto,  and  of  the  re]~»ly  of 
the  plaintiff  to  any  counter-claim  of  a  defendant. 

Judgment "  shall  include  decree. 

Order  "  shall  include  rule. 

Oath  "  shall  inckide  solemn  affirmation  and  statutory 
declaration. 

Crown  cases  reserved  "  shall  mean  such  questions  of 
law  reserved  in  criminal  trials  as  are  mentioned 
in  the  Act  of  the  eleventh  and  twelfth  years  of 
Her  Majesty's  reign,  chapter  seventy-eight. 
'  Pension  "  shall  include  retirement  and  superannua- 
tion allowance. 

■  Existing  "  shall  mean  existing  at  the  time  appointed 

for  the  commencement  of  this  Act. 

'  Registration  of  Voters  Acts  "  shall  mean  the  Act  of 
the  session  of  tlie  thirteenth  and  foui-teenth  years 
of  the  reign  of  Her  present  Majesty,  chapter 
sixty-nine,  and  all  other  Acts  or  parts  of  Acts 
relating  to  the  registration  or  qualification  of 
persons  entitled  to  vote  at  the  election  of  members 
to  serve  in  Parliament  for  Ireland. {«) 

'  Land  "  shall  have  the  same  meaning  as  in  the  Act  of 
the  session  of  the  twenty-first  and  twenty-second 
years  of  the  reign  of  Her  present  Majesty,  chapter 
seventy-two,  intituled  "  An  Act  to  facilitate  the 
sale  and  transfer  of  land  in  Ireland."(a) 

'  Officers"  shall  include  "  clerks."((0 


(«)  Not  in  the  English  Act. 


40  &  41  YiCT.,  c.  57.  435 

PART  I. 

Constitution  and  Judges  of  Court  of  Judicature. 

4.  From  and  after  the  time  appointed  for  tlie  com-   section  4. 

mencement  of  this  Act,  the   several  Courts   hereinafter       _ 

mentioned  (that  is  to  say),  the  High  Court  of  Chancery,  g'g^  '  ■^^'  • 
the  Court  of  Queen's  Bench,  the  Court  of  Common  Pleas,  uuion  of 
the  C^ourt  of  Exchequer,  the  Court  of  Probate,  the  Court  oxi-^ring 
for  Matrimonial  Causes  and  Matters,  and  the  Landed  j^X'^ono 
Estates  Court,  shall  be  united  and  consolidated  together,  Supreme 
and  shall  constitute,  under  and  subject  to  the  provisions  j'^J}['^. ?^ 
of  this  Act,  one  Supreme  Court  of  Judicature  in  Ire- 
land. 

5.  The  said  Supreme  Court  shall  consist  of  two  per-   section  5. 

manent  Divisions,  one  of  which,  under  the  name  of  "  Her       

Majesty's  High  Court  of  Justice  in  Ireland,"  shall  have  g'^"^"'  ^^''^' 
and  exercise  original  jurisdiction,   with  such  appellate  pi^igion  of 
jurisdiction  from  inferior  Courts  as  is  hereinafter  men-  Supreme 
tioned,  and  the  other  of  which,  under  the  name  of  "  Her  ^""^^  "'*" 
Majesty's  Court  of  Appeal  in   Ireland,"  shall  have  and  orijdnaland 
exercise  appellate  jurisdiction,  with   such  origrnal  juris-  a  Court  of 
diction  as  hereinafter  mentioned  as  may  be  incident  to  the  j^urisdic-^ 
determination  of  any  appeal.  tion. 

6.  Her  Majesty's  High  Court  of  Justice  in  Ireland    Sect  inn  r,. 
shall  be  constituted  as  follows  : — -The  first  Judges  thereof  j   /       ... 
shall  be  the  Lord  Chancellor,  the  Lord  Chief  Justice,  the  s.  .5.  ' 
Master  of  the  Rolls,  the  Lord  Chief  Justice  of  the  Com-  "i.?ii 
mon  Pleas,  the  Lord  Chief  Baron  of  the  Exchequer,  the  ju^tke*^ 
Vice-Chancellor,  the  several  Puisne  Justices  of  the  Courts        r  j 

of  Queen's  Bench  and  Common  Pleas  respectively,  the  First 
several  Junior  Barons  of  the   Court  of  Exchequer,  the  •^"^s^^^- 
Judge  of  the   Court  of   Probate  and  of  the  Court  foi 
Matrimonial  Causes  and  Matters,  and  the  Jiidges  of  the 
Landed  Estates  Court,  except  such,  if  any,  of  the  afore- 
said Judges  as  shall  be  appointed  an  ordinary  Judge  of      fffnllf 
the  Court  of  Appeal.  

The  Lord  Chancellor  shall  be  appointed  and  shall  hold  j^^^l '' 
his  office  in  the  same  manner  as  heretofore. («)  ciiunceilor. 

Whenever   the  office    of  a  Judge    of  the   said  High        §  3. 
Court,  other  than   the  Lord    Chancellor,    shall   become  J'^'^^o'^s- 
vacant,  a  new  Judge  may  be  ajDpointed  thereto  by  Her 
Majesty  by  Letters  Patent. 

All  persons  to  be  hereafter  appointed  to  fill  the  places        5  4. 
of  the  Lord  Chief  Justice,  the  Master  of  the   Rolls,  the  JuJiJes. 
Lord  Chief  Justice  of  the  Common  Pleas,  and  the  Lord 
Chief  Baron,    and    their    successors    respectively,    shall 

U  2 


43G  SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1S77. 


Serf  ion  G. 


§5. 
Vacancies 
not  to  be 
lilled. 


Landed 

Estates 
Judt;e. 


§7. 
Style  and 
jurisdic- 
tion. 


President. 


Si:ctinn  7. 

$  1. 
Landed 
li.-itates 
Court 
Judtris  to 
exe^ci^e 
forini-r 
jiiri-^dic- 
tion. 


continue  to  be  appointed  to  the  same  respective  offices, 
Avitli  the  same  precedence,  and  by  the  same  respective 
titles,  and  in  the  same  manner  respectively  as  heretofore. 
Every  Judge,  otlier  than  the  Lord  Chancellor  and  the 
Judges  last  mentioned,  who  shall  be  appointed  to  fill  thq 
place  of  any  Judge  of  the  High  Court  of  Justice,  shall  be 
styled  in  his  appointment  "  Judge  of  Her  Majesty's  High 
Court  of  Justice  in  Ireland." 

The  vacancy  now  existing  in  the  office  of  Puisne 
Justice  of  the  Court  of  Common  Pleas,  and  any  vacancy 
which  may  exist  at  the  time  of  the  passing  of  this  Act  in 
the  office  of  Junior  Baron  of  the  Court  of  Exchequer,  or 
in  case  there  be  no  such  vacancy  at  that  time,  then  the 
first  such  vacancy  which  shall  occur  after  the  passing  of 
this  Act  shall  not  be  filled  up. 

Provided  always,  that  when  first  after  the  commence- 
ment of  this  Act  one  of  the  existing  Judges  of  the 
Landed  Estates  Court  shall  die,  resign,  or  otherwise 
vacate  his  office,  the  vacancy  thus  occasioned  shall  not 
be  filled  up  until  a  Commission  shall  have  been  issued  by 
Her  Majesty  under  Her  Ptoyal  Sign  Manual  to  ascertain 
and  report  whether  the  business  in  connexion  with  the 
Division  of  the  High  Court  of  Justice  (hereinafter  termed 
the  Chancery  Division)  makes  it  requisite  that  such 
appointment  should  be  made,  nor  until  the  expij-ation  of 
a  period  of  forty  days  after  the  date  of  such  report,  if 
Parliament  be  then  sitting,  and  if  Parliament  be  not 
then  sitting,  xmtil  the  expiration  of  a  period  of  forty  days 
ofter  the  commencement  of  the  then  next  Session  of 
Parliament. 

All  the  Judges  of  the  Supreme  Court  shall  be  addressed 
in  tlie  maimer  which  is  now  customary  in  addressing  the 
Judges  of  the  Superior  Courts  of  Common  Law  in  Ire 
land,  and  shall  have  in  all  respects,  save  as  in  this  Act 
otherwise  expressly  provided,  equal  power,  authority,  and 
jurisdiction. 

The  Lord  Chancellor  for  the  time  being,  or  in  his 
absence  the  Lord  Chief  Justice  for  the  time  being,  shall 
be  President  of  the  High  Court  of  Justice. 

7.  The  jurisdiction  exercised  by  the  Judges  of  thy 
Landed  Estates  Court  shall  continue  to  l)e  exercised  be 
them,  and  by  the  Judges  who  may  from  time  to  time  be 
a[ipointed  to  succeed  them,  and,  in  the  case  of  illness, 
absence,  or  other  inability  of  them  or  cither  of  them  to 
discharge  their  duties,  or  of  a  vacancy  in  the  office  of  the 
si\id  Judges  or  either  of  tliom,  by  any  other  Judge  of  the 
Chancery  Division  of  the  High  Court. 


40  &  41  Vict.,  c.  57.  437 

If  tlie  state  of  business  in  connexion  with  tlieu- peculiar    ^.^^  r. 
jurisdiction  shall  permit,  the  said  Judges  shall  in  addition        .  2. 
be  bound  from  time  to  time  to  assist  in  the  general  busi-  Ami  uid 
ness  of  the  Chancery  Division.  Ci'visiouf 

The  existing  Judges  of  the  Landed  Estates  Court,  and       ^  3_ 
their  successors,    shall   be  Judges  of  the  said  Chancery  Land 
Division,  and  shall  be  distinguished  as  the  Land  Judges  ^|'fj|ce"y 
of  the  said  Division.     The  rules  and  orders  and  practice  Division, 
of  the  Landed  Estates  Court  shall  continue  to  be  used  in  Practice  to 
proceedings  for  the  sale  or  partition  of  estates,  declara-  continue, 
tion  or  record  of  titles,  and  all  other  proceedings  which 
would  have  been  within  the  exclusive  cognizance  of  the 
Landed  Estates  Court  if  this  Act  had  not  passed,  before 
the  Land  Judges,  unless  and  until  altered  by  the  Lord 
Chancellor  and  the  said  Judges.       The  Lord  Chancellor  Rules  may 
and  the  Land  Judges,  or  either  of  them,  may  from  time  ^'^  "^^'^'''^^i 
to  time   alter  the   rules  and  orders  and  practice  in.  all 
proceedings  before  the  Land  Judges,  and  make  new  itiles 
and  orders  for  the  regulation  of  such  practice  and  pro- 
ceedings, and  for  the  distribution  of  business  between  the 
Land   Judges.       All  rules   made   in  pursuance  of  this 
section  shall  be  laid  before  each  House  of  Parliament 
within  such  time,  and  shall  be  subject  to  be  annulled  in 
such  ]nanner,  as  is  in  the  sixty-ninth  section  of  this  Act 
jirovided. 

There  shall  be  a  separate  seal  for  the  Land  Judges,        §  4. 
and  conveyances  executed  with  this  seal  shall  have  the  j^g!J}''"^"^ 
same  force  as  those  executed  with  the  seal  of  the  Landed 
Estates  Court. 

8.  The  existing  Judges  of  the  Court  of  Bankruptcy,    S<^ction  s. 
and  their  successors  in  such  offices  respectively,  shall  be  jm-,7^Qf 
appointed  in  the  same  manner  as  heretofore,  and  shall,  as  Courc  of 
to  tenure  of  office,  rank,  title,  patronage,  rights,  privileges,  J^JI"^"^. 
and  powers  of  appointment  and  dismissal,  salary,  pension,  appoin't- 
jiu-isdiction,  powers,  and  authority  respectively,  remain  meut  ami 
and  be  in  the  same  condition  and  be  liable  to  discharge  tion  as 
the  same  duties  respectively,  and  none  other,  as  if  this  before. 
Act  had  not  been  passed. 

The  practice  and  procedure  of  the  Court  of  Bankruptcy,  Practice  to 
and  the  powers  to  make  rules  and  orders  regulating  the  continue. 
same,  shall  continue  and  be  exercised  in  the  same  manner  I^^les- 
as  if  this  Act  had  not  been  passed.     The  tenure,  salaries, 
pensions,  rights,  privileges,  and  duties,  of  the  officers  of 
the  said  Court  shall  also  continue  the  same  as  if  this  Act 
had  not  been  passed. 

Appeals  from  orders  of  the  Judges  of  the  said  Court  Appeals 
shall  lie  to  the  Co  art  of  Appeal  constituted  by  this  Act  f^"^^- 


438        SUPEEZ^IE  COURT  OF  JUDICATUEE  ACT  (IRELAND),  1877. 


Orders  by 
way  of 
appeiil. 


Section  9. 

§1- 
Iligli 
(/ourt  of 
Admii-alty. 

§2. 
Appeals 
from. 


§3. 

No  suc- 
cessor to 
.Tiid"e. 


.Section  s.  in  the  same  manner  and  in  respect  of  the  same  proceed- 
ings as  heretofore  to  the  Court  of  Appeal  in  Chancery, 
save  so  far  as  the  procedure  on  appeals  may  be  altered  by 
any  rules  or  orders  to  be  made  in  pursuance  of  this  Act, 
Every  order  of  the  Judges  of  the  said  Court  made  on 
appeal  from  any  order  of  a  chairman  may  be  appealed 
from  to  the  Court  of  Appeal  constituted  by  this  Act  in 
the  same  manner  as  appeals  from  other  orders  of  the 
J  udges  of  the  said  Court. 

9.  The  existing  Judge  of  the  High  Court  of  Admiralty 
shall  retain  the  same  juiisdiction,  authority,  rights  of 
patronage,  and  of  dismissal,  rank,  and  salary  as  if  this 
Act  had  not  been  passed. 

Appeals  from  his  orders  and  decrees  shall  lie  to  the 
Court  of  Appeal  constituted  by  this  Act  in  the  same 
manner  and  in  respect  of  the  same  proceedings  as  hereto- 
fore to  the  Court  of  Appeal  in  Chancery,  save  so  far  as 
the  procedure  on  aj)peals  may  be  altered  by  any  rules  or 
ordei's  to  be  made  in  pursuance  of  this  Act. 

When  the  existing  Judge  of  the  High   Court  of  Ad- 
miralty shall  die,  resign,  or  othenv-ise  vacate  his  office,  no 
person  shall  be  appointed  to  succeed  him  in  his  said  office  ; 
and  thereupon  the  High  Court  cf  Admiralty  in  Ireland 
shall  be  united  and  consolidated  with  the  Supreme  Court 
of  J  udicature  in  Ireland,  and  all  the  jurisdiction  vested 
in  and  capable  of  being  exercised  by  the  Judge  of  the  said 
Court  of  Admiralty,  and  all  causes  and  proceedings  then 
pending  in  the   said  Court,  shall  be  transferred  to  the 
Jurisdiction  High  Coui't    of  Justice.       The  jurisdiction   theretofore 
to  be  vested  vested  in  and  capable  of  being  exercised  by  the  Judge  of 
of  HMf"**   the  said  Court  of  Admiralty  shall  thenceforth,  and  until 
Court  to  be  the  vacancy  next  ensuing  after  the  passing  of  this  Act 
nominated.  -^^  ^^^^  ^^^^  ^,f  ^j^g  Judge  of  the  Probate  and  Matrimonial 
Division  hereinafter  constituted  shall  be  filled  iip  by  the 
appointment  of  a  new  Judge,  be  vested  in  and  may  be 
exercised  by  such  Judge  of  the  High  Court  appointed  to 
Ije  a  Judge  since  the  first  day  of  Januarj',  one  thousand 
eight  hundred  and  seventy-four,  or  such  Judge  of  the  High 
Court  apj)ointed  before  that  day,  and  who  shall  consent 
l.hcreto,  as  the  Loixl  Lieutenant  shall  by  order  under  his 
hand  nominate  in  that  behalf. 

The  power  of  nommation  conferred  l)y  this  section 
upon  the  Lord  Lieutenant  may  be  exercised  hy  him  in 
the  manner  aforesaid  at  any  time  after  the  passing  of 
this  Act,  and  thereafter  from  time  to  time  whenever  any 
Judge  so  nominated  by  him  shall  die,  or  resign,  or  become 
incapable  of  executing  the  duties  so  imposed  upon  him. 


§4. 
Nomina- 
tiou. 


40  &  41  YiCT.,  c.  57.  439 

In  case  any  Judge  appointed  before  the  said  first  day   Section  9. 
of  January,  one  thousand  eight  hundred  and  seventy-four,        ~ 
shall  be  so  nominated,  he  shall  be  paid  for  the  perfor-  Additional 
mance  of  the  duty  so  imposed  uj^on  him  such  additional  salary, 
salary  as  the  Lord  Lieutenant,  with  the  consent  of  the 
Treasuiy,  shall  appoint. 

Upon  the  fiJling  up  of  the  vacancy  next  ensuing  after        §  g. 

the  passing  of  this  Act  in  the  office  of  the  Judge  of  the  ^°  ^^'^^ . 
I  o  o      ^  viicancy  in 

Probate  and  Matrimonial  Division  hereinafter  constituted  office  of 
by  the  appointment  of  a  new  Judge,  all  the  jurisdiction  ^''^^^^': 
then  vested  in  any  Judge  nominated  in  that  behalf  by  the  miraity 
Lord  Lieutenant  in  pureuance  of  the  preceding  provisions  causes  to 
of  this  section  shall  be  transferred  to  and  vested  in  and  fm-jg^jl ''" 
may  be  exercised  by  such  new  Judge,  and  the  power  of 
nomination   conferred   by  this   section   upon   the  .  Lord 
Lieutenant  shall  thereupon  cease  ;   and  all  causes  and 
proceedings    in    Admiralty,    whether  so   transferred  or 
afterwards  commenced,  shall  proceed  and  be  heard  before 
the  Judge  in  whom  such  Adniu-alty  jurisdiction  shall  for 
the  time  being  be  vested  under  the  preceding  provisions 
of  this  section.      Until  such  transfer  of  jurisdiction  to  rro vision 
the  High  Court  of  Justice  as  aforesaid  the  Lord  Chan-  lor  official 
cellor,  with  the  concurrence  of  the  Treasury,  shall,  on 
vacancy  in  the  offices  of  the  Admiralty  Court,  make  pro- 
vision for  the  temporary  discharge  of  the  duties  of  such 
offices. 

10.   Her  Majesty's  Court  of  Appeal  in  Ireland  shall  be  SecHim  lo. 
constituted    as  follows  : — There   shall    be  five  ex-officio  q^^^^  ^^ 
Judges  thereof,  and  two  ordinary  Judges,  who  shall  from  Appeal. 
time  to  time  be  appointed  by  Her  Majesty.     The  ex-  J- ^-  ^^''^^ 
officio  Judges  shall  be  the  Lord   Chancellor,   the  Lord   '   '  §  i. 
Chief  Justice,  the  Master  of  the  Rolls,  the  Lord  Chief  Judges  of. 
Justice  of  the  Common  Pleas,  and  the  Lord  Chief  Baron  ^'^jj 
of  the  Exchequer.     The  first  ordinary  Judges  of  the  said  ordinary. 
Court  shall  be  the  existing  Lord  Justice  of  Appeal  in  ^^^  j^^^^ 
Chancery,  and  such  other  person  as  Her  Majesty  may  be  Justice  of 
pleased  to  appoint  by  Letters  Patent ;  such  appointment  ^PP^ai- 
may  be  made  either  before  or  after  the  commencement 
of  this  Act,  and  if  made  before  shall  take  effect  from  the 
commencement  of  this  Act,  and  may  be  made  upon  the 
terms  as  to  salary  and  otherwise,  and  subject  to  the  con- 
ditions and  in  the  manner  provided  by  the  "  Chancery 
Appeal   Court  (Ireland)   Act,   1856,"  in  respect  of  the 
office  thereby  created. 

Besides  the  said  ex-officio  Judges  and  ordinary  Judges,        §  2. 
it  shall  be  hu\-ful  for  Her  Majesty  (if  she  shall  thmk  fit)  to  A'J^J^^"^^ 
appoint  under  Her  Royal   Sign  Manual,   as  additional 


440         SUPREME  COUET  OF  JUDICATURE  ACT  (IRELAND),  1877. 


Section  10. 


§3. 

Style  and 
jurisdiction. 


§4. 
Vacancies 
filled. 


§5. 

President 
of. 

§6. 
Not  re- 
quired to 
act  as  a 
judge  in 
first 
instance. 


Section  11. 

J.  A.  1873, 
S.  7. 

Vacancies 
by  resigna- 
tion of 
Judges. 
Effect  of 
vacancies 
generally. 

Section  12. 

Qualifica- 
tions of 
Judges. 
J.  A.,  1873, 
s.  8. 


Judges  of  the  C(  ui't  of  Appeal,  any  persons  who,  having 
hekithe  office  of  Lord  Chancellor  or  of  Chief  Jnstice, 
Master  of  the  Rolls,  Chief  Justice  of  the  Common  Pleas, 
or  Chief  Baron  of  the  Exchequer  in  Ireland,  shall  signify- 
in  writing  their  willingness  to  serve  as  such  additional 
Judges,  (a) 

The  ordinary  and  additional  Judges  of  the  Court  of 
Appeal  shall  be  styled  Lords  Justices  of  Appeal.  All 
the  Judges  of  the  said  Court  shall  have  in  all  respects, 
save  as  in  this  Act  is  otherwise  expressly  provided, 
equal  power,  authority,  and  jurisdiction. 

Whenever  the  office  of  an  ordinary  Judge  of  the  Court 
of  Appeal  becomes  vacant,  a  new  Judge  may  be  ap- 
pointed thereto  hj  Her  Majesty  by  Letters  Patent,  as 
provided  by  the  "  Chanceiy  Appeal  Court  (Ireland;  Act, 
185G." 

The  Lord  Chancellor  for  the  time  being  shall  be 
President  of  the  Court  of  Appeal. 

Except  in  matters  which  are  by  this  Act,  or  by  some 
other  Act,  specially  reservetl  to  the  Lord  Chancellor,  he 
shall  not  be  bound  or  required  to  exercise  any  of  the 
functions  of  a  Judge  of  the  High  Court,  or  of  the 
Chancery  Division  of  the  same,  unless  he  shall,  by  special 
order,  direct  that  any  matter  shall  be  disposed  of  by  him- 
self, but  all  such  matters  shall  be  disposed  of  by  one  of 
the  other  Judges  of  the  Chancery  Division,  and  the  Lord 
Chancellor  shall  in  relation  to  such  matters  exercise  only 
the  functions  of  a  Judge  of  the  ('ourt  of  Appeal. («) 

IL  The  office  of  any  Judge  of  the  Court  of  Appeal,  or 
of  any  Judge  of  the  High  Court  of  Justice,  may  l)e 
vacated  by  resignation  in  writing  under  his  hand  addressed 
to  the  Lord  Lieutenant,  without  any  deed  of  surrender  ; 
and  the  office  of  any  Judge  of  the  said  High  Court  shall 
be  vacated  by  his  being  appointed  to  the  office  of  ordinary 
Judge  of  the  Court  of  Appeal.  The  said  Courts  respec- 
tively shall  be  deemed  to  be  duly  constituted  during  and 
notwithstanding  any  vacancy  in  the  office  of  any  0  udge. 

12.  Any  person  who  has  practised  (a)  for  not  loss  than 
ten  years  at  the  Bar  of  Ireland  shall  be  qualified  to  be 
appointed  a  Judge  of  the  said  High  Court  of  Justice  ; 
and  any  ])erson  who  if  this  Act  had  not  passed  would 
have  been  qualified  b}'  law  to  V)e  a])i)ointed  Lord  Justice 
of  the  Court  of  Ajjpeal  in  Chancery  in  Ireland,  or  has 
been  a  Judge  of  the  High  Court  of  Justice  of  not  less 
than    one  year's  standing,   shall    be  qualified  to  bo  ap- 


((()  Not  in  Englisli  Act. 


40  &  41  YiCT,  c.  57.  441 

pointed  to  the  office  of  ordinary  Judge  of  tlie  said  Court  Sacfion  la. 
of  Appeal. 

13.  Evexy  Judge  of  tlie  Higli  Court  of  Justice  other  Teuure  of 
than  the  Lord    CJiancellor,  and  every  ordinary  Judge  of  o^ce  of 
the    Court  of  Appeal,    shall  hold  his    office  for  life{«),  oathsof 
subject  to  a  power    of  removal  by  Her  Majesty  on  an  office. 
address    presented  to    Her  Majesty  by  both  Houses  of  g'^"  ^'*'^''* 
Parliament.     No    Judge    of   either  of   the    said    Courts  Incapacities 
shall  be  capable  of  being  elected  to  or  of  sitting  in  the  "^  Judges. 
House  of  Commons.     Every  Judge  of  either  of  the  said 

Courts  (other  than  the  Lord  Chancellor)  when  he  enters 
on  the  execution  of  his  office,  shall  take,  in  the  presence 
of  the  Lord  Chancellor,  the  oath  of  allegiance,  and 
judicial  oath  as  defined  by  the  Promissory  Oaths  Act, 
1868.  The  oaths  to  be  taken  by  the  Lord  Chancellor 
shall  be  the  same  as  heretofore.  No  Judge  of  the  High  Places  of 
Court  of  Justice,  while  he  continues  such  Judge,  shall  i"'^'^*- 
hereafter,  unless  otherwise  provided  by  Parliament,  be 
appointed  to  any  place  of  Profit  under  the  Crown  except 
on  a  transfer  to  another  judicial  appointment. (6) 

14.  The  ex-officio  Judges  of  the  Court  of  Appeal  shall  Section  u. 

rank  in  the  Supreme  Court  of  Judicature  in  Ireland  in  ^       ~ 

1  ^  ^  1  recedenc* 

the  order  of  their  present  respective  official  precedence,  of  Judges. 
The  ordinary  Judges  of  the  Court  of  Appeal  shall  rank  J-  -^-i  is 75, 
as  provided  by  The  Chancery  and  Common  Law  Officers 
(Ireland)  Act  (1867),  and  if  not  entitled  to  jirecedence  as 
Peers  or  Privy  Councillors,  between  themselves  accord- 
ing to  the  priority  of  their  respective  appointments. 

The  Judges  of  the  High  Coiu-t  of  Justice,  who  are  not 
also  Judges  of  the  Court  of  Appeal,  shall  rank  next 
after  the  ordinary  Judges  of  the  Court  of  Appeal,  and 
among  themselves  (subject  to  the  provisions  hereinafter 
contained  as  to  existing  Judges)  according  to  the  priority 
of  theii-  respective  appointments. 

1-5.   Every  existing  Judge  who  is  by  this  Act  made  a  section  la. 
Judge  of  the  High  Court  of  Justice  or  ordinary  Judge       — — 
of  the  Court  of  Appeal  shall,  as  to  tenure  of  office,  rank  Rights  ami 
between  himself  and    the  other  existmg  Judges,  title,  obligations 
patronage,  and  powers  of  appointment  and  dismissal,  and  L(^^Js.''"^ 
all  other  privileges  and  discjualifications,  and  also  as  to  J.  a.,  1 873, 
salary  and  pension,  save  as  is  herein  provided,  remain  in  the  ^-  ^^• 
same  condition  as  if  this  Act  had  not  passed  ;  and,  sub- 
ject to  the  change  effected  in  theii*  jurisdiction  and  duties 
by  or  in  pursuance  of  the  provisions  of  this  Act,  every 

(a)  During  good  behaviour  in  English  Act. 
\b)  Not  in  Englisli  Act. 

u3 


442         SUPREME  COUHT  of  judicature  act  (IRELAND),  1877 


Si-dion  1  .' 


§2. 
Judges 
going  on 

assizes. 


§3. 
Service  for 
peuaiou. 


§4. 
Lord  Clian 
cellor. 

Section  IC. 

Extraor- 
dinary 
duties  of 
Judges  uf 
the  former 
Courts. 
J.  A.,  1873. 
S.  12. 


such  existing  Judge  shall  be  capable  of  pei'forming  and 
liable  to  perform  all  duties  which  he  -would  have  been 
capable  of  performii>g  or  liable  to  perform  in  pursuance 
of  any  Act  of  Parliament,  law,  or  custom,  if  this  Act  had 
not  passed. 

No  Judge,  whether  of  the  High  Court  of  Justice  or 
of  the  Court  of  Appeal,  who  was  appointed  before  the 
tirst  of  January,  one  thousand  eight  hundred  and  seventy- 
five,  except  a  Land  Judge,  shall  be  required,  without  his 
own  consent,  to  act  under  any  Commission  of  Assize, 
Nisi  Prius,  Oyer  and  Terminer,  or  Gaol  Delivery,  or  for 
the  trial  of  crimes  and  offences,  unless  he  was  so  liable  by 
usage  or  custom  at  the  time  of  the  passing  of  this  Act  ; 
but  every  Judge,  whether  of  the  High  Court  of  Justice 
or  of  the  Coui-t  of  Appeal,  appointed  after  the  said 
date  shall  from  and  after  the  passing  of  this  Act  be 
capable  and  bound  to  act  in  such  Commission,  if  named 
therein. 

Service  as  a  Judge  in  the  High  Court  of  Justice,  or  as 
an  ordinary  Judge  in  the  Court  of  Appeal,  shall,  in  the 
case  of  an  existing  Judge,  for  the  purpose  of  determining 
the  leng-th  of  service  entitling  such  Judge  to  a  pension  on 
his  retirement,  be  deemed  to  be  a  continuation  of  his 
service  in  the  Court  of  Avhich  he  is  a  Judge  at  the  time 
of  the  commencement  of  this  Act. 

The  provisions  of  this  section  shall  not  apply  to  the 
Lord  Chancellor. 

IG.  If,  in  any  case  not  expressly  provided  for  by  this 
Act,  a  liability  to  any  duty,  or  any  avithority  or  power,  not 
incident  to  the  administration  of  justice  in  any  Court 
whose  jui-isdiction  is  transferred  by  this  Act  to  the  High 
Coui-t  of  Justice,  sliall  have  been  imposed  or  conferred  liy 
any  statute,  law,  or  custom  upon  the  Judges  or  any 
Judge  of  any  of  such  Courts,  every  Judge  of  the  said  High 
Court,  except  where  otherwise  expressly  directed  by  this 
Act,  shall  be  capable  of  pei-forming  and  exercising,  and 
shall  be  liable  to  perform  and  empowered  to  exercise  every 
such  duty,  authority,  and  ]>ower,  in  the  same  manner  as 
if  this  Act  had  not  passed,  and  as  if  he  had  been  duly 
aj)pointed  the  successor  of  a  Judge  liable  to  sucli  duty,  or 
})()ssessing  such  authority  or  ])ower,  before  tlie  passing  of 
this  Act.  Any  such  duty,  authority,  or  })Ower,  imposed 
or  conferred  by  any  statute,  law,  or  custom,  in  any  such 
case  as  aforesaid  u])on  the  Lord  Chancellor,  the  Lord 
Chief  Justice,  the  Master  of  tlie  Rolls,  the  Lord  Chief 
Justice  of  the  Common  Pleas,  or  the  Lord  Cliief  Baron, 
shall  continue  to  be  performed  and  exercised  hj  them 


40  &  41  Vict.,  c.  57-  443 

respectively,  and  by  tlieir  respective   successors,  in    tlie  Section  \i. 
same  manner  as  if  this  Act  had  not  passed. 

17.  From  and  after  the  time  fixed  for  the  commence- Salaries  of 
ment  of  this  Act,  there  shall  be  paid   to  the  existing  existing 
judges  hereinafter  mentioned  the  following  salaries ;  that  judges. 

is  to  say, 

To  the  Master  of  the  Rolls  four  thousand  pounds  a 

year. 
To  each  of  the   Puisne  Justices  and  Junior  Barons 

three  thousand  eight  hundred  pounds  a  year. 
To   each   of  the    Land    Judges    three   thousand   five 

hundred  pounds  a  year. 
Such  salaries  shall  be  instead  of  the  salaries  by  law 
payable  to  such  Judges  immediately  before  such  com- 
mencement, and  such  salaries  shall  be  paid  to  such  Judges 
respectively  on  the  same  days  and  in  the  same  manner  in 
every  respect  as  their  former  salaries  ;  the  pension  which 
may  be  granted  to  the  existing  Master  of  the  Rolls  shall 
be  such  as  would  be  paj-able  to  him  if  this  Act  had  not 
passed,  and  the  pensions  which  may  be  gi-anted  to  all 
other  existing  Judges  shall  be  two-thirds  of  the  salaries 
which,  after  the  commencement  of  this  Act,  shall  be  pay- 
able to  them  respectively. 

18.  There  shall  be    paid  to    Judges   appointed  after  SecHonia. 
the    commencement   of  this  Act  the  following  salaries,  ggjj~~  ^ 
which  shall  in  each  case  include  any  pension  to  which  the  future 
Judge  may  be  entitled  in  respect  of  any  public  ofiice  J"dges. 
previously  filled  by  him  :  s.'  13^' 

To  the  Lord  Chief  Justice  five  thousand  pounds  a  year, 
and  to  the  Lord  Chief  Justice  of  the  Common  Pleas, 
and  the  Lord  Chief  Baron  of  the  Exchequer,  each, 
four  thousand  six  hundred  pounds  a  year. 
To  the  Master  of  the  Rolls  the  salary  hereinbefore 
directed  to  be  paid  to  the  existing  Master  of  the 
Rolls. 
To  each  ordinary  Judge  of  the  Court  of  Appeal  such 
salary  as,  in  pursuance  of  the  "  Chancery  Appeal 
Court  (Ireland)  Act,  1856,"  might  have  been  assigned 
for  him  if  he  had  been  appointed  under  the  said 
Act. 
To  each   of  the  other  Judges  of  the   High   Court  of 
Justice  the   sum    of  three    thousand  five  hundred 
pounds  a  year. 
The   Chiefs  of  the  Divisions  termed  in  this  Act  the  Allowance 
Queen's  Bench,  Common  Pleas,  and  Exchequer  Divisions,  for  circuits 
whether  appointed  before  or  after  the  commencement  of 
this  Act,  and  the  other  Judges  of  the  same  Divisions  who 


444        SUPREME  COURT  OF  JUDICATURE  ACT  (iRELAXD),  1S77. 


Section  18. 


Winter 
assizes  and 
special  coin- 
niisiiou. 


Acljourned 
assi/es. 


Section  19. 

Pensions  of 

future 

judfres. 

.1.  A.,  1873, 

8.  14. 


Section  20. 

Salaries 
and  pen- 


Avere  appointed  before  the  commencement  of  this  Act, 
shall  not  be  entitled  to  any  allowance  in  addition  to  their 
salaries  in  respect  of  cii'cuit.  Every  other  Judge  of  the 
High  Court  of  Justice,  or  of  the  Court  of  Appeal,  whether 
a[)pointed  before  or  after  the  commencement  of  this  Act, 
Avho  shall  actually  go  cii'Cuit  as  a  Judge,  shall  be  entitled 
to  receive  in  respect  of  such  circuit  one  hundred  and  fifty 
pounds.  This  last  provision  shall  apply,  immediately  on 
the  passing  of  this  Act,  to  any  Judge  who,  not  being  a 
Judge  of  a  Common  Law  Court,  shall  be  named  in  the 
commission  and  shall  actually  go  circuit. 

Any  Judge,  whether  appointed  before  or  after  the 
passing  of  this  Act,  who  shall  be  sent  as  Judge  for  a 
winter  assizes  or  special  commission,  shall  be  entitled  to 
receive  in  respect  thereof  such  additional  payment,  not 
exceeding  the  amount  allowed  for  a  cii-cuit,  as  the  Lord 
Lieutenant  sliall  determine ;  but  no  Judge  shall  receive 
any  additional  or  extra  payment  in  respect  of  an  adjourned 
assizes  :  Provided  always,  that  nothing  herein  contained 
shall  affect  such  rights  to  remuneration  in  respect  of  any 
special  commission  or  adjourned  assizes  as  the  existing 
Lord  Chief  Justice,  Chief  Justice  of  the  Common  Pleas, 
and  Lord  Chief  Baron  possessed  before  the  passing  of  this 
Act. 

No  salary  shall  be  payable  to  any  additional  Judge  of 
the  Court  of  Appeal,  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. 

19.  Her  Majesty  may,  by  Letters  Patent,  grant  to  any 
Judge  of  the  Higli  Court  of  Justice  other  than  the  Lord 
Chancellor,  and  also  to  any  ordinary  Judge  of  the  Court 
of  Appeal  appointed  after  the  commencement  of  this  Act 
who  as  served  for  fifteen  years  as  a  Judge  in  such  Courts, 
or  either  of  them,  or  who  is  disabled  by  permanent  in- 
firmity from  the  performance  of  the  duties  of  his  office, 
a  pension,  by  way  of  annuity,  to  be  continued  dining  his 
life,  of  the  amount  following  ;  (that  is  to  say, ) 

In  the  case  of  the  ordinary  Judges  of  the  Court  of 
Appeal,  the  same  amount  of  pension  which  might 
have  been  granted  to  the  Lord  Justice  of  the  Court 
of  Ap})eal  in  Chancery  in  Ireland  if  this  Act  had  not 
passed  : 

In  the  case  of  the  Judges  of  the  High  Court  of  Justice, 
two-thirds  of  their  i-espective  salaries. 

2('.  The  salaries,  allowances,  and  pensions  payal)le  to 
the  Judges  of  the  Higli  Court  of  Justice  and  the  ordinary 
Judges  of  the  Court  of  Appeal  respectively  under  this 


40  &  41  Vict.,  c.  57.  44.o 

Act  shall  be  charged  on  ajid  paid  out  of  the  Consolidated  Section  -.-o. 
Fund  of   the   United   Kingdom  of   Great    Britain    and  gionTl^w 
Ireland,  or  the  gi-owing  produce  thereof.     Such  salaries  paid. 
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  otlier  periods  in  eveiy  year  as  the 
Treasury  may  from  time  to  time  determine. 


S.  15. 


PART  II. 

Jurisdiction  and  Law. 


21.  The  High   Court  of  Justice  shall  be  a  Superior  Sectionn. 
Court  ot  Record,  and,  subject  as  in  this  Act  mentioned,       — . 
there  shall  be  transferred  to  and  vested  in  the  said  High  of  flfgh*'"" 
Coui-t  of  Justice  the  jurisdiction  which  at  the  commence-  Court  of 
ment  of  this  Act,  was  vested  in,  or  capable  of  being  ex-  j^J'^tsTS 
ercised  by,  all  or  any  of  the  Courts  following;  (that  is  to  s.'ie.' 
say,) 

(1.)  The  High  Court  of  Chancery  as  a  Common  Law  Constituent 
Court  as  well  as  a  Court  of  Equity,  including  the  juris-  members  of. 
diction  of  the  Master  of  the  Rolls  as  a  Judge  or  Master 
of  the  Court  of  Chancery,  and  any  jurisdiction  exercised 
by  him  [or  the  Lord  Chancellor] (a)  in  relation  to  the 
Court  of  Chancery  as  a  Common  Law  Court,  and  [in- 
cluding any  jurisdiction  of  the  Masters  in  Chancery]  :(« 

(2.)  The  Court  of  Queen's  Bench  : 

(3.)  The  Court  of  Common  Pleas  : 

(4.)  The  Court  of  Exchequer  as  a  Court  of  Revenue  as 
well  as  a  Common  Law  Court : 

(5.)  The  Court  of  Probate  : 

(6.)  The  Court  for  Matrimonial  Causes  and  Matters  : 

(7.)  The  Landed  Estates  Court,  including  the  control 
and  direction  of  the  Record  of  Title  Office  of  the  said 
Court,  and  all  powers  and  authorities  exercised  by  the 
Judges  of  the  said  Court,  or  any  of  them,  under  the 
Record  of  Title  Act,  1865  :(«)  28  &  29  Vic. 

(8.)  The  Courts  created  by  Commissions  of  Assize,  of '^^  **=*• 
Oyer    and  Terminer,  and  of  Gaol  Delivery,   or  any   of 
such  commissions  : 

The  jurisdiction  by  this  Act  transferred  to  the  High  Court 
of  Justice  shall  include  (subject  to  the  exceptions  herein- 
after contained)  the  jurisdiction  which,  at  the  commence- 

(a)  Not  in  English  Act. 


446         SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 

Section  21.  ment  of  tins  Act,  was  vested  in  or  capable  of  being  ex- 
ercised  by  all  or  any  one  or  more  of  the  Judges  of  the 
said  Courts,  respectively,  sitting  in  Court  or  Chambers, 
or  elsewhere  [or  by  any  Master  of  the  Court  of  Chan- 
cery,](a)  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,  Masters 
or  Master,  by  any  statute  ;  and  also  all  ministerial  powers, 
duties,  and  authorities,  incident  to  any  and  every  part  of 
the  jurisdiction  so  transferred. 

[Provided  always,  that  nothing  herein  contained  shall 

abridge  or  alter  the  jurisdiction  conferred  by  any  Act  or 

Acts  upon  any  Judge  or  Judges^  Commissioner  or  Com- 

missionei'S,  of  Assiy.e.](«) 

Section  22.        22.  There  shall  not  be  transferred  to  or  vested  in  the 

: — -       High  Court  of  Justice,  by  virtue  of  this  Act, — 
tion^not'  (!•)  -^i^J  appellate  jurisdiction  of  the  Court  of  Appeal 

transferred  in  Chancery,  or  of  the  same  Court  sitting  as  a  Court  of 
Court"''  Appeal  from  the  Court  of  Probate,  the  Court  for  Matri- 
J.  A.  1S73,  monial  Causes  and  Matters,  the  Landed  Estates  Court,  the 
*•  ^"-  Court  of  Bankruptcy,  or  the  High  Court  of  Admiralty  : 

(2.)  Any  juiisdiction  usually  vested  in  the  Lord 
Chancellor  in  relation  to  the  custody  of  the  persons  and 
es.tates  of  idiots,  lunatics,  and  persons  of  unsound  mind  : 
(3.)  Any  jurisdiction  vested  in  the  Lord  Chancellor  in 
relation  to  grants  of  Letters  Patent,  or  the  issue  of  com- 
missions or  other  writings,  to  be  passed  under  the  Great 
Seal  of  Ireland  : 

(4.)  Any  jurisdiction  exercised  by  the  Lord  Chancellor 
in  right  of  or  on  behalf  of  Her  Majesty  as  visitor  of 
any  College,  or  of  any  charitable  or  other  foundation  : 

(5.)  Any   jurisdiction  of  the  Master  of  the   Kolls  in 

relation  to  records  in  Dublin  or  elsewhere  in  Ireland. 

Section  23,       23.  The  Court  of  Appeal   shall  be  a  Superior  Court 

~~~       of  Record,  and  there  shall  be  transferred  to  and  vested 

tion  trans-   in  sucli  Court  all  jurisdiction  and  powers  of  the  Courts 

ferred  to       following  ;  (that  is  to  say,) 

Appea?.  (!•)  All  jurisdiction  and  powers  of  the  Lord  Chancel- 

J.  A.,  1873,  lor  and  of  the  Court  of  Ap})eal  in  Chancery,  in  the  exer- 
^'^^'  ciseof  hisand  its  appellate  jurisdiction,  and  of  the  same 

Appear^     Court  sitting  as  a  Court  of   Ap[)eal  from  the   Court    of 
Court.         Probate,  the  Court  for  Matrimonial  Causes  and  Matters, 
the  Landed  Estates  Court,  the  High  Court  of  Admiralty, 
or  the  Court  of  Bankruptcy  : 

Exchequer  (2.)  All  iurisdiction  and  powers  of  the  Coui't  of  Ex- 
Chambcr. [ , _^__ 

(«)  Nut  ill  English  Act. 


1 


40  &  41  YiCT.,  c.  57.  447 

chequer  Chambei*,  including  its  appellate  jurisdiction  in  Section  23. 
appeals  under  the   Registration  of  "Voters  Acts :  Eegistm- 

(3.)  All  jurisdiction  and  powers  of  the  Court  for  Land  tion  of 
Cases    Reserved   at   Dublin  under  the  provisions  of  the 
"  Landlord  and  Tenant,  Ireland,  Act,  1870."  reserved. 

(4.)  Jurisdiction  on  writs  of  error  in  criminal  cases  on 
a})peal  from  the  Queen's  Bench  Division  of  the  High 
Coui't  of  Justice. (fl) 

24.  The  Court  of  Appeal  shall  have  jurisdiction  and  Section  "H. 
power  to  hear  and  determine  appeals  from  any  judgment       ~~~ 
or  order,  save  as  hereinafter  mentioned,   of  the  High  from  High 
Court  of  Justice,  or  of  any  Judges  or  Judge  thereof,  <-"ourt  of 
subject  to  the  provisions  of  this  Act,   and  to  such  rules  j  ^^  {q~-^^ 
and    orders    of    Court  for    regulating    the    terms    and  s.  i9. 
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  powers  of 
and  determination  of  any  appeal  within  its  jurisdiction.  Court  of 
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  Ap- 
peal shall  have  all  the  power,  authority  and  jurisdiction 
by  this  Act  vested  in  the  High  Court  of  Justice. 

25.  From  and  after  the  commencement  of  this  Act        §  i. 
the  several  iurisdictions  Avhich  by  this  Act  are  trans-  Transfer  of 
ferred  to  and  vested  in  the  High   Court  of  Justice  and  business  io 
the  Court  of  Appeal  respectively  shall  cease  to  be  exer-  High  Com-t 
cised,   except  by  the   High  Court    of   Justice  and  the  of  Appeal. 
Court  of  Appeal  respectively,  as  provided  by  this  Act ;  J.  a.,  i87a, 
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        §  2. 
whatsoever  which  shall  have  been  fully  heard,  and  in  Cases  fully 
which  judgment  shall  not  have  been  given,  or  haviug  been  ju^^rn,ent 
given  shall  not  have  been  signed,  drawn  up,  passed,  en-  to  follow, 
tered,  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  Coui't, 
and  by  the  same  Jvidges  and    oiScers,  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 

(/' )  Xut  in  English  Act.     But  an  Appeal  from  Orders  in  Lunacy  is 
given  by  English  Act,  1877,  section  18,  subs.  (5). 


448         SUPREME  COURT  OF  JUDICATURE  ACT  (iRELAND),  1877. 

Section  25.  and  purposes,   as  if  the  same  had  been  duly  perfected 
before  the  commencement  of  this  Act ; 
§  3.  And  every  judgment,   decree,  rule,  or  order   of  any 

Judgments  Court    whose   jurisdiction  is  hereby    transferred  to  the 
TohtT^!-^  High   Court  of  Justice  or  the  Court  of  Appeal,  which 
cutud,  &c.    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  High 
Court  of    Justice    and   the    Court   of    Appeal    respec- 
tively in  the  same  manner  as  if  it  had  been  a  judgment, 
decree,  rule,  or  order  of  the  said  High  Court  or  of  the 
Court  of  Appeal ; 
§4.  i\nd  all  causes,   matters,  and  proceedings  whatsoever, 

reiuhng      whether  civil  or  criminal,   which    shall    be   pending  in 

jiroceedings  „      ,         ,^  ,  ^  .       .     , .    ,  .  .  \  i-  ^ 

continued,  any  of  the  Courts  whose  jurisdiction  is  so  transterred 
as  aforesaid  at  the  commencement  of  this  Act,  shall  be 
continued  as  follows ;  (that  is  to  say,)  in  the  case  of  pro- 
ceedings in  Error  or  on  Appeal,  or  of  proceedings  before 
the  Court  of  Appeal  in  Chancery,  or  in  the  Court  for 
Land  Cases  Reserved  at  Dublin,  in  and  before  the  Court 
of  Appeal ;  and  as  to  all  other  proceedings,  in  and  before 
the  High  Court  of  Justice. 
§  5.  The    said    Courts  respectively  shall   have    the    same 

toTave""^'*  jurisdiction  in  relation   to  all  such  causes,  matters  and 
same  juris-   proceedings  as  if  the  same  had  been  commenced  in  the 
diction  as     jjigh  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  jdace  ; 
§  G.  And  so  far  as  relates  to  the  form  and  manner  of  pro- 

^rm^oTiro-  cedure,  such  causes,  matters,  and  proceedings,  or  auy  of 
cedure.        them,  may  be  continued  in  and  before  the  said   Courts 
respectively,  either  in  the  same  or  the  like  manner  as 
they  would  have  been  continued  in  the  respective  Courts 
from  which  they  shall   have  been  transferred  as  afore- 
said, or  according   to  the  ordinaxy  course  of  the  High 
Court  of  Justice  and  the  Court  of  Appeal  res})ectively 
(so  far  as  the  same  may  be  applicable  thereto),  as  the  said 
Courts  respectively  may  think  fit  to  direct. 
SfcHon  2G.        2G.   The  jurisdiction  by  this    Act   transferred   to  the 
JuiT^-      High  Court  of  Justice  and  the  Court  of  Appeal  rcs})ec- 
tiou  trans-   tively  shall  be  exercised  (so  far  as  regards  procedure  and 
pxer1s**d'^^  practice)    iu  the    manner  provided  by  this  Act,  or  by 
as  nearly  as  such  Pailes  and  Orders  of  Court  as  may  be  made  pur- 
may  be  as    suant  to  this  Act;  and  where  no  special   provision  is 
^^.^x.'^iiu,  contained  in  this  Act  or  in  any  such  llules  or  Orders  of 
s.  23.        '  Coui-t  with  reference  thereto,   it  shall  be  exercised  as 
nearly  as  may  be  in  the  same  manner  as  the  same  might 


I 


40  &  41  Vict.,  c.  57.  449 

liave  been  exei'cised  Ijy  the  respective  Courts  from  which  Section  -ir,. 
such  jurisdiction  shall  liave  been  transferred,  or  by  any 
of  such  Courts. 

27.  In  ever}^  civil  cause  or  matter  commenced  in  the   Section  27. 
High  Court  of  Justice  law  and  equity  shall  be  adminis- 
tered  by  the   High   Court  of  Justice  and  the   Court  of  equity  to  i^e 
Appeal  respectively  according  to  the  rules  following :  concur- 

(1.)  If  any  plaintiff  or  petitioner  claims  to  be  entitled  miuig^Jl-ed. 
to  any  equitable  estate  or  right,  or  to  relief  upon  any  j.  a.  is73, 
equitable  ground  against  any  deed,  instrument,  or  contract,  *■  ^-i- 
or  against  any  right,  title,  or  claim  whatsoever  asserted  by  Equitable 
any  defendant  or  respondent  in  such  cause  or  matter,  or  relief  to 
to  any  relief  foiinded  upon  a  legal  right,  which  heretofore  P'^'"'^''^*- 
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         (2.) 
equitable  estate  or  right,  or  to  relief  upon  any  equitable  Equitable 

1  ■      i.  1       1      •      i  X  ±       J.  relief  to 

grovmd    against  any   deed,    instrument,    or    contract,    or  fiefendants 

against  any  right,  title,  or  claim  asserted  by  any  plaintiff  by  way  of 

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    eveiy    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  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  eveiy   Judge        (3.) 
thereof,  shall  also  have  power  to  grant  to  any  defendant  „  ..^ '.• 
in  respect  of  any    equitable    estate    or    right,   or  other  way  of 
matter  of  equity,  and  also  in  I'espect  of  any  legal  estate,  counter- 
right,  or  title  claimed  or  asserted  by  him,  all  such  relief 
against  any  plaintiff  or  petitioner  as  such  defendant  shall 
have  properly  claimed  by  his  pleading,  and  as  the   said 
Courts  respectively,  or  any   Judge  thereof,  might  have 
granted  in  any  suit  instituted  for  that  purpose  by  the 
same  defendant  against  the  same  plaintiff  or  petitioner. 

And  also  all    such    relief   relatinsr   to    or    connected        §  -• 

°  Relief 


450    SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 

Section  27.  with  the  original  subject  of  the  cause  or  matter,  and  in 

a<^ainst"       ^^Q  manner  claimed  against  any  other  person,  whether 

tiiird  already  a  party  to  the  same  cause  or  matter  or  not,  who 

persons.       g^all  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. 

§  i-  And  every  person  served  with  any  such  notice  shall 

eerv'ed  with  thenceforth  be  deemed  a  party   to  such  caixse  or  mattei', 

notice  with  the  same  rights  in  respect  of  his  defence  against 

dfemed        guch  claim  as  if  he  had  been  dvily  sued  in  the  ordinary 

way  by  such  defendant. 
E    "^ble         (^•)   -^^^^    ^^^^    Courts  respectively,  and  every   Judge 
rights  in-      thereof,  shall  recognise  and  take  notice  of  all  equitable 
cidentally     estates,    titles,    and  rights,  and    all  equitable  duties  and 
liabilities  appearing   incidentally   in   the  course  of    any 
cause  or   matter,    in   the   same    manner    in  which  the 
Court   of  Chancery  would    have  recognised    and  taken 
notice   of    the   same    in    any    suit    or  proceeding    duly 
instituted  therein  before  the  passing  of  this  Act. 
(o.)  (5.)  No  cause  or  proceeding  at  anytime  pending  in  the 

§  1-  High  Court  of  Justice,  or  before  the  Court  of  Appeal, 
ije  re^  *  shall  be  resti'ained  by  prohibition  or  injunction, 
strained  by  But  every  matter  of  equity  on  which  an  injunction 
injunction,  j^g^jngt  the  prosecution  of  any  such  cause  or  proceeding 
Matterof  ^^ig'^t  have  been  obtained,  if  this  Act  had  not  passed, 
equity  to  be  either  unconditionally  or  on  any  terms  or  conditions,  may 
pleaded.       i^g  relied  on  by  way  of  defence  thereto. 

^.^•.  Provided  alwnys,  that  nothing  in  this  Act  contained 

tostaypro- «liall  disable  either  of  the  said  Courts  from  directing  a 
ceedings.  stay  of  proceedings  in  any  cause  or  matter  pending  before 
it  if  it  shall  think  fit;  and  any  person,  whether  a  party 
or  not  to  any  such  cause  or  matter,  who  would  have  been 
entitled,  if  this  Act  had  not  passed,  to  apply  to  any  Court 
to  restrain  the  prosecution  thereof,  or  who  may  be  entitled 
to  enforce,  by  attachment  or  otherwise,  any  judgment, 
decree,  rule,  or  order,  contrary  to  which  all  or  any  part 
of  the  proceedings  in  such  cause  or  matter  may  have 
been  taken,  shall  be  at  liberty  to  a])ply  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  ])urposes  of  justice  ;  and 
the   Court  shall  thereupon  make  such  order  as  shall  be 

Lepalrijrlits      (G.)  Subject  to  the  aforesaid  provisions  for  giving  effect 
tobertcog-  to  equitable  rights  and  other  matters  of  equity  in  manner 


40  &  41  Vict.,  c.  57.  451 

aforesaid,  and  to  tlie  other  express  provisions  of  this  Section  27. 
Act,  the  said  Courts  I'espectively,  and  every  Judge 
thereof,  shall  recognise  and  give  effect  to  all  legal  claims 
and  demands,  and  all  estates,  titles,  rights,  duties,  obliga- 
tions, and  liabilities  existing  by  the  Common  Law  or  by 
any  custom,  or  created  by  any  Statxite,  in  the  same  manner 
as  the  same  would  have  been  recognised  and  given  effect 
to,  if  this  Act  had  not  passed,  by  any  of  the  Courts 
whose  jurisdiction  is  hereby  transferred  to  the  said 
High  Court  of  Justice. 

(7.)  The  High  Court  of  Justice   and   the    Court   of  ^,    (^■> 
Appeal   respectively,  in  the  exercise   of  the  jurisdiction  i-dief  to  be 
vested  in  them  by  this  Act,   in  every  cause  or  matter  giveu. 
pending  before  them  respectively,  shall  have  power  to 
grant,    and   shall   grant,   either   absolutely  or    on  such 
reasonable  terms  and  conditions  as  to  them  shall  seem 
j  ust,  all  such  remedies  whatsoever  as  any  of  the  parties 
thereto  may  appear  to  be  entitled  to  in  respect  of  any 
and    every  legal  or  equitable    claim   properly   brought 
forward  by  them  respectively  in  such  cause  or  matter, 
so  that,  as  far  as  possible,   all  matters  so  in  controversy 
between  the  said  parties  respectively,  may  be  completely 
and  finally  determined,  and  all  multiplicity  of  legal  pro- 
ceedings concerning  any  of  such  matters  avoided. 

28.  And  whereas  it  is  expedient  to  take  occasion  of  Section  28. 
the  union  of  the  several  Courts  whose  jurisdiction  is  hereby  j  ^~~[q-^ 
transferred  to  the  said  High  Court  of  Justice  to  amend  s.  25.' 
and  declare   the  law  to   be    hereafter   administered  in  Amend- 

.       -  .  ,      ment  and 

Ireland  as  to  the  matters  next  neremaiter  mentioned.  :  declaration 
Be  it  enacted  as  follows  :  of  law  upon 

(1.)  In  the  administration  by  the  Court  of  the  assets  pojutg, 
of  any  person  who  may  die  after  the  commencement  of        (i.) 
this  Act,  and  whose  estate  may  prove  to  be  insufficient  t,.!^™oi"o'f 
for  the  payment  in  full  of  his  debts  and  liabilities,  and  in  assets  of 
the  winding  up   of  any  company  under  the   Companies  insolvent 
Acts,    18G2   and  18G7,  whose  assets   may  prove  to   be 
insufficient  for  the  payment  of  its  debts  and  liabilities  and  ^."^®j.J.^  , . 
the  costs  of   winding  up,  the  same  rules  shall  prevail  followed, 
and  be  observed  as  to  the  respective  rights  of  secured  i'-  a.,  i875, 
and  unsecured  creditors,  and  as  to  debts  and  liabilities 
provable,  and  as  to  the  valuation  of  annuities  and  future 
and  contingent  liabilities  respectively,  as  may  be  in  force 
for  the  time    being  under  the  law  of  bankruptcy  with 
respect  to  the  estates  of  persons  adjudged  bankrupt  in 
Ireland  ;  and  all  persons  who  in  any  such  case  would  be 
entitled  to  prove   for  and  receive  dividends  out  of  the 
estate  of  any  such  deceased  person,  or  out  of  the  assets 


452         SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 

^icction  28.  of  any  such  company,  may  come  in  under  the  decree  or 
order  for  the  administration  of  such  estate,  or  under  the 
winding  up  of  such  company,  and  make  such  claims 
against  tlie  same  as  they  may  respectively  be  entitled  to 
by  virtue  of  tbis  Act. 
f2.)  (2.)  No  claim  of  a  cestiii  que  tiiist  against  his  ti-ustee 

statutes  of  ^^^,  .^^-^j  property  held  on  an  express  trust,  or  in  respect  of 
not  to  apply  any  breach  of  such  trust  shall  be  held  to  be  barred  by 
to  express  any  Statute  of  Limitations.  This  provision,  however, 
trusts.  ^^  ^^^  ^^  affect  the  enactments  contained  in  the  tenth 

section  of  the  Real   Property  Limitation  Act,   187J:,(«) 
when  the  same  shall  come  into  effect.  (6) 
(3.)  (3.)  An  estate  for  life  ^vithout  impeachment  of  waste 

Equitable  gj-^all  not  confer  or  be  deemed  to  have  conferred  upon  the 
tenant  for  tenant  for  life  any  legal  right  to  commit  waste  of  the 
life  im-  desciiption  known  as  equitable  waste,  i;nless  an  intention 
peacha  e  ^^  confer  such  right  shall  expressly  appear  by  the  instru- 
ment creating  such  estate. 
'^■^  (4.)  There  shall  not,  after  the  commencement  of  this 

operaHo/    Act,  be  any  merger  by  operation  of  law  only,   of  any 
of  law  not    estate   the  beneficial   interest  in   which  would   not   be 
beneficial     deemed  to  be  merged  or  extinguished  in  equity, 
interest  (5.)  A  mortgagor  entitled  for  the  time  being  to  the 

'■^™^??^-       possession  or  receipt  of  the  rents  and  profits  of  any  land, 
§  i.       as  to  Avhich  no  notice  of  his  intention  to  take  possession 
Suits  for      QY  ^Q  enter  into    the  receipt   of   the   rents  and  profits 
ofland'by    thereof  shall  have  been  given  by  the  mortgagee  [may  sign 
niongagors  and,cause  to  be  served  notices  to  quit,  determine  tenan- 
oVnname.   ^ies   or  accept   surrenders  thereof  and] (6)  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. 
§2.  And   such  action,    suit,  or    proceeding  shall  not   be 

Action  not  defeated  by  proof  that  the  legal  estate  in  the  lands  the 
proofed  ^^  jwssession  of  which  is  sought  to  be  recovered,  or  in  respect 
legal  estate  of  which  the  rents  or  profits  are  sought  to  be  recoA  ered,  or 
111  mort-  -j^  respect  to  which  tlie  trespass  or  other  Avrong  has  been 
committed,  is  vested  in  such  mortgagee  : 
§  3.  Provided   always,  that   a  mortgagor  shall  not  be   at 

Expre>s       liberty  to  exercise  any  of  the  powers  hereby  conferred 
to  contrary,  if  an    express  declaration   that    they    shall   not   be    ex- 
ercised is  contained  in  the  mortgage,  (i) 

(«)  37  &  38  Vii'.,   c.  57,  comes  into   effect  on  1st  day  ul  J;aui.»ry, 
1879. 

(b)  This  clause  is  not  in  English  Act. 


40  &  41  Vict,  c.  57.  453 

(6.)  Any  absolute  assignment,  by  writing  under  the   Section  2S. 
hand  of  the  assignor   (not  purporting  to  be  by  way  of 
charge  only),  of  any  debt  or  other  legal  chose  in  action,         j'j. 
of  wliich  express  notice  in  writing  shall  have  been  given  Debts  and 
to  the  debtor,  tnistee,  or  other  person  from  whom  the  action  inade 
assignor  would  have  been  entitled  to  receive  or  claim  assignable 
such  debt  or  chose  in  action,    shall   be  and  be  deemed  "*■  ^'^^^' 
to  have  been  effectual  in  law  (suljject  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  dis- 
charge for  the  same,  without    the    concurrence    of   the 
assignor : 

Provided  always,  that  if  the  debtor,  trustee,  or  other        §  2. 
person  liable  in  respect  of  such  debt  or  chose  in  action      assign- 

1     11    1  -1  1  •  •       T  ment  uis- 

shall  have  had  notice  that  such  assignment  is  disputed  puted 
by  the  assignor    or    anyone  claiming  under  him,  or  of  ''.'-■^^5"'  "^^"^ 
any  other  opposing  or  conflicting  claims  to  such  debt  or  inter- 
chose  in  action,  he  shall  be  entitled,  if  he  think  fit,  to  pleader, 
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        $  3. 
Court  of  Justice  under  and  in  conformity  with  the  pro-  ^^^^^  ^^^j-t 
visions  of  the  Acts  for  the  relief  of  trustees.  under 

(7.)  Stipulations  in  contracts,  as  to  time  or  otherwise,  i"f?''i''\ 
which  would  not  before  the  commencement  of  this  Act         .. 
have  been  deemed  to  be  or  to  have  become  of  the  essence  stipuJa- 
of  such   contracts  in  a  Court  of  Equity,  shall  receive  in  *|°'**  ^°*'  "^^ 
all  Courts  the  same  construction  and  effect  as  they  would  of  contracts 
have  theretofore  received  in  equity.  iJi  equity. 

(8.)  A  mandamus  or  an  injunction  may  be  granted  or        (.«■) 
a  receiver  appointed  by  an  interlocutory  order  of  the  inj^^c-' 
Court  in  all  cases  in  which  it  shall  appear  to  the  Court  to  tions  and 
be  just  or  convenient  that  such  order  should  be  made,  and  '"eceivers 
any  such  order  may  be  made  either  unconditionally  or  upon  granted 
such  terms  and  conditions  as  the  Court  shall  think  just;   wben  just. 

And  if  an  injunction  is  asked,  either  before,  or  at,  or        §  2. 

after  the  hearinij  of  any  cause  or  matter,  to  prevent  any  Whether 

.       defendant 
threatened  or  apprehended  waste  or  trespass,   such   in-  {„  posses- 
junction  may  be  granted,  if  the  Court  shall  think  fit,  siou  or  not 
whether  the  person    against  whom    such    injunction    is  01  title*^ 
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. 


451        SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 


Section  28. 

§3. 
"Whether 
estates 
legal  or 
equitable. 

(y.) 

Damages 
by  colli- 
sions at 
sea  as  in 
Court  of 
Admiralty. 

(10.) 
Infants — 
Rules  of 
Equity  to 
prevail. 

(11.) 
In  cases  of 
conflict. 
Rules  of 
Equity  to 
prevail. 


Section  29. 

Abolition 
of  terms. 
J.  A.,  1873, 
8.  26. 


And  whether  the  estates  claimed  by  both  or  by  either 
of  tlie  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  High  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  education 
of  infants  the  Kules  of  Equity  shall  prevail. 

(11.)  Generally,  in  all  matter  not  hereinbefore  particu- 
larly mentioned  in  which  there  is  any  conflict  or  variance 
between  the  Rules  of  Equity  and  the  Rules  of  the  Com- 
mon Law  with  reference  to  the  same  matter,  the  Rules 
of  Equity  shall  prevail. 


Section  30. 

Vacations 
regulated 
by  Orilcrs 
in  Council. 
J.  A.,  1873, 
8.  27. 


PART  IIL 


Sittings  and  Distribution  of  Business. 

29.  The  division  of  the  legal  year  .into  terms  shall  be 
abolished  so  far  as  relates  to  the  administration  of  justice, 
and  there  shall  no  longer  be  terms  applicable  to  any  sitting 
or  business  of  the  High  Court  of  Justice,  or  of  the  Court 
of  Appeal,  or  of  any  Commissioners  to  whom  any  juris- 
diction 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 
],rovision  is  otherwise  made  by  any  lawful  authority. 
Subject  to  Rules  of  Court,  the  High  Court  of  Justice,  the 
Court  of  Appeal,  and  the  Judges  thereof  respectively,  or 
any  such  Commissioners  as  aforesaid,  shall  have  power  to 
sit  and  act,  at  any  time,  and  at  any  place,  for  the  trans- 
action of  any  part  of  the  business  of  such  Courts  respec- 
tively, or  of  such  Judges  or  Commissioners,  or  for  the 
discharge  of  any  duty  which  by  any  Act  of  Parliament, 
or  otherwise,  is  required  to  be  discharged  during  or  after 
term. 

.30.  The  Lord  Lieutenant,  by  and  with  the  advice  of 
the  Privy  Council  in  Ireland,  may  before  the  commence- 
ment of  this  Act,  upon  any  report  or  recommendation  of 
the  Judges  by  Avhose  advice  the  Lord  Lieutenant  is  here- 
inafter authorized  to  make  rules  before  the  commence- 
ment of  this  Act,  and  after  the  commencement  of  this 


40  &  41  YiGT,  c.  .57.  455 

Act  upon  any  report  or  recommendation  of  tlie  Council  Section  30. 

of  Judges  of  the  Supreme  Court  hereinafter  mentioned, 

with  the  consent  of  the  Lord   Chancellor,  from  time  to 

time   make,  revoke,   or    modify   orders    regulating   the 

vacations  to  be  observed  by  the  High  Court  of  Justice 

and  the  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. 

31.  Provision  shall  be  made  by  Rules  of  Court  for  the  Sedhn  si. 

hearing,  in  Dublin,  during  vacation,    by   Judices  of  the       

High  Court  of  Justice  and  the  Judges  of  the  Court  of  vacation 
Appeal    respectively,    of  all   such    applications   as   may  to  be 
require  to  be  immediately  or  promptly  heard.  j^^A^^ibTS 

32.  Her  Majesty,  by  commission  of  assize,  or  by  any  s  28.' 
other  commission,  either  general  or  special,  may  assign  to  Section  32. 
any  Judo;e  or  Judges  of  the  High  Court  of  Jiistice  or  „    

^/  =>  ="  n  1  •  ■     ■  <-  Commis- 

other  person  or  persons  usually  named  m  commissions  of  sion  to 
assize,  the  duty   of  trying  and  determining,  within   any  Judge?  to 
place  or  district  specially  fixed  for  that  purpose  by  such  tlousofVact 
commission,  any  causes  or  matters,  or  any  questions  or  or  law. 
issues  of  fact  or  of  law,  or  partly  of  fact  and  partly  of  law,  ^-  f^'  ^^''^' 
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  in  the  body  of  this  Commis- 
Act ;  and  any  Commissioner  or  Commissioners  appointed  constitute 
in  pursuance  of  this  section  shall,  when  engaged  in  the  a  court, 
exercise  of  any  jurisdiction  assigned  to  him  or  them  in 
pursuance  of  this  Act,  be  deemed  to  constitute  a  Court 
of  the  High   Court  of  Justice  ;  and,  subject  to  any  re- 
strictions or  conditions  imposed  by  Rules  of  Court  and 
to  the  power  of  transfer,  any  party  to  any  cause  or  matter  May  try  any 
involving  the  trial  of  a  question  or  issue  of  fact,  or  partly  fa"  t^^or'fact 
of  f\ict  and  partly  of  law,  may  with  the  leave  of  the  Judge  and 'law. 
or  Judges  to  whom  or  to  whose  Division  the  cause  or 
matter  is  assigned,  require  the  question  or  issue   to   be 
tried  and  determined  l)y  a  Commissioner  or  Commissioners 

(a)  Not  in  English  Act. 


456    SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 

Serthn  32.  as  aforesaid,  or  at  sittings  to  be  held  in  Dublin  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. 

SecHon  33.        33.   Subject  to  Rules  of  Court,  sittings  for  the  trial  by 
^  J        ]\i.Yj  of  causes  and  questions  or  issues  of  fact  shall  be 

Sittiiiiirs  for  held   in    Dublin,  and    such   sittings    shall,  so   far  as  is 

trjai  by        reasonably  practicable,  and  siibiect  to  vacations,  be  held 

jury  ill  ,  ^  ^ 

Dubiintohe  continuously  throughout  the  year  by  as  many  Judges  as 
continuous,  the  business  to  be  disposed  of  may  render  necessary.  Any 
s.  3o!'     '"'  Ji^^dge  of  the  High  Coiirt  of  Justice  sitting  for  the  trial 

of  causes  and  issues  in  Dublin,  at  any  place  heretofore 

accustomed,  or  to  be   hereafter  determined  by  Eules  of 

Court,  shall  be  deemed  to  constitute  a  Court  of  the  High 

Coui't  of  Justice, 
i.i.-^^ff  Subject  to  Rules  of  Court,  the  plaintiff  shall,  in  the 

name  some  document  by  which  each  cause  shall  be  commenced,  name 
pi.ice  for  the  county  or  place  in  which  he  proposes  that  the. cause 
^"'^  ■  shall   be  tried    or  proceeding  shall   take  place,  but  the 

Court  or  a  Judge  may,  in  their  or  his  discretion,  direct  the. 

same  to  be  tried  in  any  other  county  or  place. 
§  ^-  And  so  far  as  shall  be  reasonably  consistent  with  the 

tried  in  Convenient  and  speedy  discharge  of  the  lousiness,  every 
county  issue  and  question  of  fact  to  be  submitted  to  a  jury  shall 
of  a^ction"^  "^^  tried  in  the  county  or  place  where  the  cause  of  action 
arises.  shall  have  arisen.     Any  order  of  a  Judge  as  to  the  place 

of  trial  of  any  siich  issue  or  question  may  be  discharged 

or  varied  by  a  Divisional  Court.] (a) 
§  4.  Whenever  application  shall  be  made  for  leave  to  serve 

Applica-      Q^j  document  by  which  a  cause  may  be  commenced  upon 

TlOIlS  to  J  J  J  i. 

serve  out  of  a  defendant  resident  out  of  the  jurisdiction  of  the  Su})reme 
thojurisdic-  Court,  whether  by  serving  such  defendant  personally  or 
by  substituting  service  upon  another  person  for  him,  the 
Coiirt  or  Judge  to  whom  such  ap})lication  shall  be  made 
shall  have  regard  to  the  amount  or  value  of  the  claim  or 
property  affected,  and  to  the  comparative  cost  and  con- 
venience of  proceedings  in  Ireland,  or  in  tlie  place  of  the 
defendant's  residence  ;  and  no  such  leave  shall  be  granted 
without  an  affidavit  stating  the  particulars  necessary  for 
enabling  the  Court  or  Judge  to  exercise  a  due  discretion 
in  tlie  manner  aforesaid.] (a) 
Section  34.       34.  For  the  more  convenient  despatch  of  business  in 
„  J         the  High  Court  of  Justice  (but  not  so  as  to  prevent  any 

Divisions  of  — — 

(a)  Not  in  English  Act. 


40  &  41  YiCT.,  c.  57.  4.57 

Judge  from  sitting  whenevei-  required  in  any  Divisional  Section  tu. 
Court,  or  for  any  Judge' of  a  diflerent  Division  fi'om  his  the  h7<t1i 
own,)  there  shall  be  in  the  said  High  Court  five  Divisions  Court  of 
consisting  of   such  Judges    respectively  as    herein-after  J^^^^Jg'i;  ^f 
mentioned.     Such  five  Divisions  shall  respectively  include,  j.  a.,  ist^, 
immediately  on  the  commencement  of  this  Act,  the  several  *•  ^^• 
Judges  following ;  (that  is  to  say,) 

(1.)   One  Division  shall  consist  of  the  Lord  Chancellor,        5i- 
who  shall  be  President  thereof,  The  Master  of  the  Eolls,  <^'''^'''=">'- 
The   Vice-Chancellor   and    the    Judges   of  the    Landed 
Estates  Court ;(«) 

(2.)  One  other  Division  shall  consist  of  The  Lord  Chief  §  '^■ 
Justice,  who  shall  be  president  thereof,  and  the  other  Bench'  "* 
Judges  of  the  Court  of  Queen's  Bench  ; 

(3.)  One  other  Division  shall  consist  of  The  Lord  Chief       §  •"• 
Justice  of  the  Common   Pleas,  who  shall  be  President  i"ielT'' 
thereof,  and  the  other  Judges  of  the  Court  of  Common 
Pleas  ; 

(4.)  One  other  Division  shall  consist  of  The  Lord  Chief        5  ^ 
Baron  of  the  Exchequer,  who  shall  be  President  thereof,  ^-'^''^'^'^^i"^'' 
and  the  other  Barons  of  the  Court  of  Exchequer ; 

(5. )  One  other  Division  shall  consist  of  the  Judge  of  ^  ^• 
the  Courts  of  Probate  and  for  Matrimonial  Causes  and  ^°  ^  ^' 
Matters. 

The  said  five  Divisions  shall  be  called  respectively  the 
Chancery  Division,  the  Queen's  Bench  Division,  the 
Common  Pleas  Division,  the  Exchequer  Division,  and 
the  Probate  and  Matrimonial  Division  ; 

Afterthe  Admiralty  jurisdiction  shall,  underthe  provisions         §  c. 
in  that  behalf  herein-before  contained,  have  become  vested  ^'^miraity 
in  the  Judge  of  the  Probate  and  Matrimonial   Division,  aimcxtd. 
such  Division  shall  be  called  "  the  Probate,  Matrimonial, 
and  Admii'alty  Division." 

The  Queen's  Bench,  Common  Pleas,  and  Exchequer  §  7. 
Divisions  shall  consist  of  the  number  of  Judges  followinsf  ?'"''it)er  of 

1  .  so  Jud^^es. 

and  no  more,  viz.  : 

The  Queen's  Bench  Division  of  four  Judges  ; 

The  Common  Pleas  Division  of  three  Judges; 

The  Exchequer  Division  (from  and  after  the  next 
vacancy  in  the  ofiice  of  one  of  the  Junior  Barons)  of  three 
Judges ;  and 

The  Probate  and  Matrimonial  Division  shall  have  one 
Judge. 

Any  vacancy  at  the  time  of  the  commencement  of  this  §  8. 
Act  in  the  ofiice  of  Judge  of  any  Court  the  iurisdiction  of  ^^"'""cics 

^                  "^                           ^  existing 

'  — 11  uw. 

(a)  Not  in  English  Act. 


458       SUPREME  COURT  OF  JUDICATURE  ACT  CiRELAXD),  1877. 


Section  34. 


§9. 
Transfer 
of  Judges. 


§  10. 
Future 
vacancies. 


Section  35. 

Rules  of 
Court  to 
provide  for 
distribution 
of  business. 
J.  A.,  IbTo, 
S.  o3. 


Pistribu- 
tion  be- 
tween 
Common 
Law  Divi- 
sions. 

Sect  ton  SG. 

Assiu'ii- 

111  ent  of 

ci-Ttnin 

liiisiiuss  to 

I);irtieular 

Divisiduo 

of  High 

Court. 

J.  A.,  1673, 

S.  34. 


Av]iich  is  by  this  Act  transferred  to  tlie  High  Court  of 
Justice  or  the  Court  of  Appeal,  If  such  office  be  continued 
by  this  Act,  may  be  supplied  by  the  appointment  of  a 
];ew  Judge  in  his  place  in  the  same  manner  as  if  a  vacancy 
in  such  office  had  occurred  after  the  commencement  of 
this  Act. 

Save  as  by  this  Act  expressly  provided,  any  Judge  of 
any  of  the  said  Divisions  may  be  transferred  by  Her 
]\Iajesty,  under  Her  Royal  Sign  Manual,  from  one  to 
another  of  the  said  Divisions  ;  provided,  that  in  the  case 
of  an  existing  Judge,  such  transfer  shall  not  be  without 
his  own  consent. 

Upon  any  vacancy  happening  among  the  Judges  of 
the  said  High  Court,  the  Judge  appointed  to  till  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  Division  to  which  the 
Judge  wliose  place  has  become  vacant  belonged,  and  shall 
succeed  to  the  duties  of  such  Judge,  (a) 

35.  All  causes  and  matters  which  may  be  commenced 
in,  or  which  shall  be  transferred  by  this  Act  to,  the  High 
Court  of  Justice,  shall  be  distributed  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,  or  Orders  of  Transfer,  to  be  made  under 
the  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. 

In  distributing  the  general  business  between  the  Queen's 
Bench,  Common  Pleas,  and  Exchequer  Divisions,  regard 
shall  be  had  to  any  special  jurisdiction  vested  in  them 
respectively  so  as  to  apportion  the  business  fairly  between 
them,  (a) 

36.  There  shall  be  assigned  (subject  as  aforesaid)  to  the 
Chancery  Division  of  the  said  Court  : 

(1.)  All  causes  and  matters  pending  in  the  Court  of 
Chancery  at  the  commencement  of  this  Act : 

(2.)  All  causes  and  matters  to  be  commenced  after  the 
commencement  of  tliis  Act  under  any  Act  of  Parliament 
by  which  exclusive  jurisdiction  in  respect  to  such  causes 
or  matters  has  been  given  to  the  Couii  of  Chancery,  or 
to  any  Judges  or  Judge  thereof  re.s])ectively  : 

(3.)  All  matters  pending  in  the  Landed  Estates  Court 
at  the  commencement  of  this  Act :  {(i) 


(a)  Not  in  Euglibh  Act. 


40  &  41  YiCT.,  c.  57.  459 

(4.)  All  matters  wlaicli  would  have  been  witliiii  the  Section  ss. 
exclusive  cognizance  of  the  Landed  Estates  Court,  or  of  any 
Judge  or  Judges  thereof,  if  this  Act  had  not  passed  :  (a) 

(5.)  All  causes  and  matters  for  any  of  the  following       5  i- 

^     '  JO  Chancery 

P^^-poses :  ^^.^._ 

1 .  The  administration  of  the  estates  of  deceased  persons ; 

2.  The  dissolution  of  partnerships,  or  the  taking  of 
partnership  or  other  accounts  ; 

3.  The  redemption  or  foreclosure  of  mortgages  ; 

4.  The  i-aising  of  portions,  or  other  charges  on  land  ; 

5.  The  sale  and  distriljution  of  the  proceeds  of  property 
subject  to  any  lien  or  charge  ; 

6.  The  execution  of  trusts,  charitable  or  private  ; 

7.  The  rectification,  or  setting  aside,  or  cancellation  of 
deeds  or  other  \\Titten  instruments ; 

8.  The  specific  performance  of  contracts  between 
vendors  and  purchasers  of  land,  (b)  including  contracts 
for  leases,  [and  also  the  specific  perfoiTuance  of  any  other 
contracts  in  respect  of  which  a  Court  of  Equity  decrees 
performance ;]  (a) 

9.  The  partition  or  sale  of  real  estates,  [including 
chattels  i-eal ;]  {a) 

10.  The  wardship  of  infants  and  the  care  of  infants' 
estates. 

All  causes  and  matters  included  under  the  heads  above 
numbered  (3)  and  (4)  shall  be  assigned  to  the  Land  Judges 
of  the  Chancery  Division. (a) 

There  shall  be  assigned  (subject  as  aforesaid)  to  the        §  -■ 
Queen's  Bench  Division  of  the  said  Coui-t :  B  "ucti  * 

(1.)   All  causes  and  matters,  civil  and  criminal,  pending  causes, 
in  the  Court  of  Queen's  Bench  at  the  commencement  of 
this  Act : 

(2.)  All  causes  and  matters,  civil  and  criminal,  which 
would  have  been  within  the  exclusive  cognizance  of  the 
Court  of  Queen's  Bench  in  the  exercise  of  its  original 
jurisdiction  if  this  Act  had  not  passed. 

There  shall  be  assigned   (subject  as  aforesaid)  to  the        §  ^• 
Common  Pleas  Division  of  the  said  Court :  Pieas'  *^ 

(1.)  All  causes  and  matters  pending  in  the  Court  of  causes. 
Common  Pleas  at  the  commencement  of  this  Act : 

(2.)  All  causes  and  matters  which  would  have  been 
"ftdthin  the  exclusive  cognizance  of  the  Court  of  Common 
Pleas  ii  this  Act  had  not  passed. 

[Provided  always,  that  if  and  whenever  the  said  Division        §  ^ 
Judge  of 

(a)  Not  in  English  Act. 

{h)  In  English  Act,  "of  real  estates." 

x2 


460        SUrREME  COURT  OF  JUDICATURE  ACT  (iRELAND),  1877. 


Section  3C. 

(Jiieeii's 
Beiich 
LiiMsion 
to  ass.ist 
in  Parlia- 
meiitary 
Election 
cases. 


§5. 
Excliequer 
causes. 


rrobate 
and  >Iatri- 
nioiiicii 
causes. 


ScrHon  n7. 

0\  titn 
to  nlaiutiff 

to  CllOO^C 

Division. 
.1.  A,  lb73 
s   11. 


iMtevlocn- 
tj.y  steps. 


Assign- 
ment to 
uronj; 
liivi.-Kir 
transfer. 


shall  be  ena;aged  in  the  hearing  or  despatch  of  any  business 
relating  to  a  parliamentary  election  which  would  have 
been  within  the  exclusive  cognizance  of  the  Court  of 
Common  Pleas,  but  only  so  long  as  there  shall  be  but 
three  Judges  of  the  Common  Pleas  Division,  the  junior 
Puisne  Judge  for  the  time  being  of  the  Queen's  Bench 
Division  shall  be  empowered  and  bound  to  attend  and 
take  part  in  the  hearing  and  despatch  by  the  Common 
Pleas  Division  of  such  business,  and  shall,  for  all  the 
liurposes  of  such  business,  l)e  a  fourth  member  of  the 
Common  Pleas  Division.]  {a) 

There  shall  be  assigned  (subject  as  aforesaid)  to  the 
Exchequer  Division  of  the  said  Court : 

(1.)  All  causes  and  matters  pending  in  the  Court  of 
Exchequer  at  the  commencement  of  this  Act : 

(2.)  All  causes  and  matters  which  would  have  been 
within  the  exclusive  cognizance  of  the  Court  of  Exchequer, 
either  as  a  Court  of  Revenue  or  as  a  Common  Law  Court, 
if  this  Act  had  not  jiassed. 

There  shall  be  assigned  (subject  as  aforesaid)  to  the 
Probate  and  Matrimonial  Division  of  the  said  Court : 

(1.)  All  causes  and  matters  pending  in  the  Court  of 
Probate,  or  in  the  Court  for  Matrimonial  Causes  and 
Matters,  at  the  commencement  of  this  Act : 

(2.)  All  causes  and  matters  which  would  have  been 
within  the  exclusive  cognizance  of  the  Coui-t  of  Probate, 
or  of  the  Court  for  Matrimonial  Cavises  and  Matters,  if 
this  Act  had  not  passed. 

37.  Subject  to  any  Ptules  of  Court,  and  to  the  provisions 
hereinbefore  contained,  and  to  the  power  of  transfer,  every 
person  by  whom  any  cause  or  matter  may  be  commenced 
in  the  said  High  Court  of  Justice  shall  assign  such  cause 
or  matter  to  one  of  the  Divisions  of  the  said  High  Court 
as  he  may  think  fit  by  marking  the  document  by  which 
the  same  is  commenced  with  the  name  of  such  Division, 
and  giving  notice  thereof  to  the  proper  officer  of  the 
Court :  Provided  that — 

(1.)  All  interlocutory  and  other  steps  and  proceedings 
in  or  before  the  said  High  Court,  in  any  cause  or  matter 
Eiibsequent  to  the  commencement  thereof,  shall  be  taken 
(subject  to  any  Rules  of  Court  and  to  the  j^ower  of  transfer) 
in  the  Division  of  the  said  High  Court  to  which  such 
cause  or  matter  is  for  the  time  being  attached  ;  and 

(2.)  If  any  jilaintiff  or  petitioner  sliall  at  any  time 
assign   his  cause  or  matter  to  any  Division  of  the  said 

(rt)  Not  in  English  Act. 


40  &  41  Vict.,  c.  57.  461 

Higli  Court  to  whicli  according  to  the  Rules  of  Court  or  Section  37. 
the  provisions  liereLii-befoi-e  contained  the  same  ought  not 
to  be  assigned,  the  Court,  or  any  Judge  of  such  Division, 
upon  being  informed  thereof,  may,  on  a  summary  applica- 
tion, at  any  stage  of  the  cause  or  matter,  direct  the  same 
to  be  transferred,  to  the  Division  of  the  said  Court  to 
which  according  to  such  rules  or  provisions  the  same 
ought  to  have  been  assigned,  or  he  may,  if  he  thiixk  it 
expedient  so  to  do,  retain  the  same  in  the  Division  in 
which  tlie  same  was  commenced  ;  and  all  steps  and  pro- 
ceedings whatsoever  taken  b}^  the  plaintiff  or  petitioner, 
or  by  any  other  party  in  any  such  cause  or  matter,  and 
all  orders  made  therein  by  the  Court  or  any  Judge  thereof 
before  any  such  transfer,  shall  be  valid  and  eftectual  to 
all  intents  and  purposes  in  the  same  manner  as  if  the 
same  respectively  had  been  taken  and  made  in  the  proper 
Division  of  the  said  Court  to  which  such  cause  or  matter 
ought  to  have  been  assigned  ;  and 

(3.)  Every  testamentary  or  matrimonial  proceeding  shall  To?tameii- 
be  commenced  in  the  Probate  and  Matrimonial  Division,  ^^P' 
and  addressed    to  the  J  udge  of  that   Division   for   the 
time  being  :  (a) 

(4.)  Eveiy  proceeding  in  any  other  matter  within  the  Land  cases, 
exclusive    jurisdiction    of    the    Landed    Estates     Coui't 
before  the  passing  or  under  the  provisions  of  this  Act 
shall     be    commenced    in     the    Chancer}^    Division    and 
addressed  to  the  Land  Judges  of  that  Division. 

38.  Any  cause  or  matter  may  at  any  time,  and  at  any  Sectimi  38. 
stage  thereof,    and  either  with  or    without  application  „    ~ — . 
from  any  of  the  parties  thereto,  be  transferred,  by  such  transfer 
authority  and  in  such  manner  as  Rules   of  Court  may  f''?'"  p"e 
dii-ect,  from  one  Division  or  Judge  of  the  High  Court  of  anothe "  ^'^ 
Justice  to  any  other  Division  or  Judge  thereof,  or  may  by  J-  A.,  is73, 
the  like  authority  be  retained  in  the  Division  in  which  the  ^"  ''^' 
same  was  commenced,   although    such  may  not  be  the 
proper  Division  to  which  the  same  cause  or  matter  ought 

in  the  first  instance  to  have  been  assigned. 

39.  Every  application  to  appoint  a  receiver  over  land.  Section  39. 
when  such  land  is  the  subject  of  a  proceeding  before  the       "^ 
Land  Judges,  shall  be  made  to  the  Land  Judge  to  whom  Procedure 
such  proceeding  is  attached.  before 

In  any  proceeding  before   a  Land  Judge,  the   Judge  j^j^gj-gg 
shall  decide  all    controversies  and  questions  as  to  the  to  receivers. 

All  con- 

(a)  In   J.  A.  1875,  s.  11,  subs.  (.'1),  no  case  shall   be  assigned  to  j,,j,i    „y^. 
Probate  &c.,  Division,  unless  it  would  have   been  entitled  to  be  com-  tions  to 
meuced  in  that  Division  heretofore.  be  decided. 


4G2        SUPREME  COUET  OF  JUDICATURE  ACT  (IRELAND),  1S77. 


Section  39. 


§8. 
Accounts 
and  ad- 
ininistra- 
tion  of 
assets. 


§4. 
rroctdure 
settled  by 
Rules. 

§  5. 
Service  of 
notice  on 
parties. 


Section  40 

Applica- 
tions to 
extend 
receivers 
to  a  Land 
Jud^e. 


validity  or  effect  of  any  deed,  instriinieut,  or  contract 
affecting  land,  or  any  charge  or  incumbrance  thereon,  or 
as  to  the  constintction  or  eflect  of  any  devise  or  bequest 
of  any  estate  or  interest  in  or  of  any  charge  or  incum- 
brance upon,  land,  which  it  may  be  necessary  to  decide 
for  the  purpose  of  such  proceeding,  including  the  validity 
or  effect  of  any  lease  or  instrument  of  tenancy  affecting 
land  requisite  to  be  ascertained  for  the  due  settlement  of 
a  rental. 

And  shall  take  accounts  of  and  administer  the  assets 
of  any  deceased  person  whenever  it  may  be  necessary  for 
a  distribution  of  the  purchase-money  of  any  land  sold 
before  him,  provided  there  shall  not  be  then  depending 
before  any  of  the  Judges  of  the  High  Court  a  suit  for  the 
administration  of  such  assets;  and  ft  shall  not  be  necessary 
to  institute  any  other  cause  or  matter  for  any  of  such 
purposes. 

The  procedure  in  such  cases  shall  be  settled  by  Rules 
of  Court,  to  be  made  by  the  Lord  Chancellor,. with  the 
Land  Judges,  or  either  of  them. 

And  any  person,  whether  already  a  party  to  the  pro- 
ceeding or  not,  who  shall  have  been  duly  served  with 
notice  in  writing  pursuant  to  any  Rule  of  Coui-t  or  order 
of  the  Court  shall  thenceforth  be  deemed  a  party  to  such 
cause  or  matter  with  the  same  rights  in  respect  of  his' 
claim  or  defence  as  if  he  had  duly  sued  or  been  sued  in  a 
suit  instituted  for  the  ])urpose  of  deciding  any  such 
question  or  controversy. 

40.  When  a  receiver  is  appointed  over  land,  either  by 
a  Land  Judge  or  by  any  other  Judge  of  the  High  Court 
of  Justice  having  power  to  appoint  the  same,  it  shall  not 
be  necessary  for  any  party  claiming  to  be  entitled  to  or 
interested  in  the  rents  of  the  lands  over  which  the 
receiver  shall  have  been  appointed  to  file  any  bill  or 
institute  any  other  cause  or  proceedings  to  have  the 
receiver  extended  to  his  claim,  but  such  i)arty  may  apply, 
by  summary  motion,  to  a  Land  Judge  to  have  the  receiver 
extended  to  his  claim ;  and,  on  the  hearing  of  siich 
application,  the  Judge  may  either  grant  the  application 
or  order  a  bill  to  be  tiled,  or  other  proceeding  to  be  insti- 
tuted for  the  purpose  of  ascertaining  the  rights  of  the  party 
ai)plying,  and  the  costs  of  a  suit,  cause,  or  other  pro- 
ceeding, the  object  of  which  shall  be  the  taking  an  account 
on  foot  of  any  mortgage  or  other  security  aflecting  land, 
and  the  extension  of  a  receiver  already  ap])oiiited  to  the 
matter  of  said  suit,  cause,  or  other  proceeding,  shall  not 
be  allowed,  unless  such  suit,  cause,  or  other  proceeding 


40  &  41  YicT,  c.  57.  463 

sliall  have  been  commenced  by  direction  of  one  of  tlie  Section  4o. 
Land  Judges. 

41.  Subject  to  any  arrangements  wbicb  maybe  from  Seofionn. 
time  to  time  made  by  agreement  between  tbe  Judges  of       -— 
the  said   High  Court,  the  sittings  for  trials  by  jury  in  Trials  in 
Dublin,  and  the  sittings  of  Judges  of  the  said  High  Court  ULiWin  and 

'^  .      .  °  „     A       ■      °  ^  n     m  •  1  on  circuits 

under  Commissions  of  Assize,  Oyer  and    iermmer,  and  ^ef,„.g 
Gaol  Delivery,  shall  be  held  by  or  before  Judges  of  the  Judges  of 
Queen's  Bench,  Common  Pleas,  or  Exchequer  Division  of  l^w*""'' 
the  said  High  Court ;  provided  that  it  shall  be  lawful  for  Division?.^ 
Her  Majesty,  if  she  shall  think  fit,  to  include  in  any  such  J-.^^--  ^^''^' 
commission  any  Ordinary  Judge  of  the  Court  of  Appeal,  judges  of 
or  any  Judge  of  the  Chancery  Division  appointed  after  ^*^^'gj|^°^ 
the   first   of  January  one  thousand   eight  hundred  and     ^^^^ ' 
seventy-five,  or  any  of  Her  Majesty's  Serjeants-at-Law 
or  Counsel  learned  in  the  law,  who,  for  the  purposes  of 
such  Commission,    shall   have   all  the  power,  authority, 
and  jurisdiction  of  a  Judge  of  the  said  High  Court. 

And  any  person  not  a  Judge  of  the  High  Court  who       §  2- 
shall  be  sent  as  a  Commissary  shall  be  paid  the  same  ^j,"™ 'ply- 
amount  and  in  the  samp  manner  as  such   person  would  ment  of. 
have  been  paid  If  before  the  passing  of  this  Act  he  had 
been  sent  as  a  Commissary,    and  if  he  shall  be  sent  in 
place  of  a  judge,  who,  under  the  provisions  of  this  Act, 
was  bound  to  go  circuit  without   payment  in    respect 
thereof  in  addition  to  his   salary,  then  one  hundred  and 
fifty  pounds  shall  be  deducted  from   the   salary  of  such 
Judge : 

Provided  also,  that,  any  law  or  custom  to  the  contrary,        §  3. 
,     „  ,        '  '        •^.  •     •        jf       J.1       J-   •   1  One  Judge 

it  shall  not  be  necessary  m  any  commission  tor  the  trial  j^^^  Dublin 

of  crimes  and  ofiences  in  the  county  of  the  city  and  Commis- 

county  of  Dublin  to  nominate  more  than  one  Judge  to  ^*°"- 

preside,  nor  for  more  than  one  judge  to  preside  under  any 

commission  existing  at  the  commencement  of  this  Act. 

42.   All  the  provisions  with  reference  to  the  assess-  Section  42. 

ment  of  the  amount  of  damages,  or  the  trial  of  questions  Assess- 

of  fact,  bv  or  before  the  High  Court  of  Chancery  in  Ire-  ment  of 

land,  which   are  contained  in  "  The  Chancery   Amend-  f.lalviaU 

ment  Act,  1858,'X«)  or  "  The  Chancery  Regulation  (Ire-  of  fact  in 

land)    Act,    1862,"(6)  shall  apply  to  the  assessment  of  ^-onT^ 

damages  and  the   determination  of  questions  of  fact  by 

or  before  the  Chancery  Division  of  the  High  Court  as 

constituted  by  this  Act,  or  any  judge  thereof,  anything 

in  this  Act  to  the  contrary  notwithstanding. (c) 


(a)  21  &  22  Vic,  c.  27.  (*)  25  &  26  Vic,  c  40. 

(c)  Not  iiiEnglisli  Act. 


404        SUrREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877- 


Si'cHon  43. 

Kota  of 
Judges  for 
election 
petitions. 
J.  A.,  1873 
S.  38. 


Section  44. 

Powers  of 
one  or 
more 

Judges  not 
constitu- 
ting a 
Divisional 
Court. 
J.  A,,  1873, 

s.  yy. 


Section  45. 

Divisional 
Courts  of 
the  Higli 
Court  of 
Justice. 
J.  A.,  1873, 
s.  40. 


43.  The  Judges  to  be  placed  on  the  rota  for  the  trial 
of  election  petitions  for  Ireland  in  each  year,  under  the 
provisions  of  the  "  Parliamentary  Elections  A.ct,  18G8,"(a) 
shall  be  selected  out  of  the  Judges  of  the  Queen's  Bench, 
Common  Pleas,  and  Exchequer  Divisions  of  the  High 
Court  of  Justice  in  such  manner  as  may  be  provided  by 
any  Rules  of  Court  to  be  made  for  that  purpose ;  and  in 
the  meantime,  and  subject  thereto,  shall  be  selected  out 
of  the  Judges  of  the  said  Queen's  Bench,  Common  Pleas, 
and  Exchequer  Divisions  of  the  said  High  Court,  by  the 
Judges  of  such  Divisions  respectively,  as  if  such  Divi- 
sions had  been  named  instead  of  the  Courts  of  Queen's 
Bench,  Common  Pleas,  and  Exchequer  respectively,  in 
such  last-mentioned  Act ;  Provided  that  the  Judges  who, 
at  the  commencement  of  this  Act,  shall  be  the  Judges 
upon  the  rota  for  the  trial  of  such  petitions  during  the 
then  current  year  shall  continue  upon  such  rota  for  the 
same  period  and  in  the  same  manner,  as  if  this  Act  had 
not  passed. 

44.  Any  Judge  of  the  High  Covirt  of  Justice  may, 
subject  to  any  Rules  of  Court,  exercise  in  Court  or  in 
ChamVjers  all  or  any  part  of  the  jurisdiction  by  this  Act 
vested  in  the  said  High  Court  in  all  such  causes  and 
matters,  and  in  all  such  proceedings  in  any  causes  or 
matters,  as  befoi'e  the  passing  of  this  Act  might  have 
been  heard  in  Court  or  in  Chambers  respectively  l)y  a 
single  Judge  of  any  of  the  Courts  whose  jurisdiction  is 
hereby  transferred  to  the  said  High  Court,  or  as  may  be 
directed  or  authorised  to  be  so  heard  by  any  Rules  of 
Court  to  be  hereafter  made.  In  all  such  cases,  any  Judge 
sitting  in  Court  shall  be  deemed  to  constitute  a  Court. 

45.  Such  causes  and  matters  as  ai-e  not  proper  to  be 
heard  by  a  single  Judge  shall  be  heard  by  Divisional 
Courts  of  the  said  High  Court  of  Justice,  which  shall  for 
that  purpose  exercise  all  or  any  part  of  the  jurisdiction 
of  the  said  High  Court.  Any  number  of  such  Divisional 
Courts  may  sit  at  the  same  time.  A  Divisional  Court  of 
the  said  High  Court  of  Justice  shall  be  con.stituted  by 
two  or(6)  more  of  the  Judges  thereof.  Every  Judge  of 
the  said  High  Court  shall  lie  qualified  and  empowered  to 
sit  in  any  of  such  Divisional  Courts.  The  President  of 
every  such  Divisional  Court  of  the  High  Court  of  Justice 
shall  be  the  senior  Judge  of  those  present,  according  to 
the  order  of  their  precedence  imder  this  Act. 


J 


(«)  31  &  ?,-2  Yic,  c.  49. 

(6_)  In  Eiiglisli  Act  "  hy  two  or  tlirceand  no  more,"  Vid. 


40  &  41  Vict.,  c.  57.  465 

46.  Subject  to  any  Rules  of  Court,  and  in  the  mean-  Section  4g. 
time  until  such  Rules  shall  be  made,  all  such  business  be-  Divisional 
longing  to  the  Queen's  Bench,   Common   Pleas,   and  Ex- Courts  for 
chequer  Divisions  res]iectively  of  the  said   High  Court,  Q^l'ggn^s  ° 
as,  according  to  the  practice  now  existing  in  the  Superior  Bench, 
Courts  of  Common  Law  in  Ireland,  would  have  been  pro-  pi'".Jg"°"(i 
per  to  be  transacted  or  disposed  of  by  the  Court  sitting  in  Exchequer 
Banco  if  this  xVct  had  not  passed,  may  be  transacted  and  j '^^^'^"g^g 
disposed  of  by  Divisional  Courts,  which   shall,   as  far  as  g/^i.'' 
may  be  found  practicable  and  convenient,  include  one  or 

more  Judge  or  Judges  attached  to  the  particular  Division 
of  the  said  Court  to  which  the  cause  or  matter  out  of  which 
such  business  arises  has  been  assigned  ;  and  it  shall  be  the 
duty  of  every  Judge  of  such  last-mentioned  Division, 
and  also  of  every  other  Judge  of  the  High  Court 
who  shall  not  for  the  time  being  be  occupied  in  the  tran- 
saction of  any  business  specially  assigned  to  him,  or  in  the 
business  of  any  other  Divisional  Court,  to  take  part,  if 
required,  in  the  sittings  of  such  Divisional  Courts  as  may 
from  time  to  time  be  necessary  for  the  ti-ansaction  of  the 
business  assigned  to  the  said  Queen's  Bench,  Conmion 
Pleas,  and  Exchequer  Divisions  respectively ;  and  all  such 
arrangements  as  may  be  necessary  or  proper  for  that  pur- 
pose, or  for  constituting  or  holding  any  Divisional  Courts 
of  the  said  High  Court  of  Justice  for  any  other  purpose 
authorised  by  this  Act,  and  also  for  the  proper  transac- 
tion of  that  part  of  the  business  of  the  said  Queen's  Bench, 
Common  Pleas,  and  Exchequer  Divisions  respectively, 
which  ought  to  be  transacted  by  one  or  more  Judges  not 
sitting  in  a  Divisional  Court,  shall  be  made  from  time  to 
time  under  the  direction  and  supermtendence  of  the 
Judges  of  the  said  High  Court  of  Justice,  and  in  case  of 
difterence  among  them,  in  such  manner  as  the  majority  of 
the  said  Judges,  with  the  concurrence  of  [either  the  Lord 
Chancellor  or] (rt)  the  Lord  Chief  Justice,  shall  determine. 

47.  Subject  to  any  Rules  of  Court,  and  in  the  mean-  sectio7i  u. 
time  untif  such  Ptules  shall  be  made,  all  business  arising       ^7" 
out  of  any  cause  or  matter  assigned   to  the   Chancery  Business  in 
Division  of  the  said  High  Court,  or  out  of  any  testamen-  chancery 
tory  or  matrimonial  cause  or  proceeding  assigned  to  the  j^"^g 
Probate  and  Matrimonial  Division,  shall  be  transacted  ijivisions 
and  disposed  of  in  the  fii-st  instance  by  one  Judge  only,  ]^^^^^^^^^  ^^ 
as  has  been  heretofore  accustomed  in  the  Court  of  Chan-  by  single 
eery,  the  Court  of  Probate,  and  the  Court  for  Matrimonial  j^'j^'^^g.. 
Causes  and  Matters  respectively.  s.'4.>.'' 

(rt)  Not  ia  English  Act. 

x3 


466         SUPREME  COUET  OF  JUDICATUEE  ACT  (IEELAXD),  1877. 


Hecfion  47. 

§2. 
Pending 
causes 
before 
same 
Judse. 


§3- 
Future 
cases 
assigned 
as  hereto- 
fore. 

Testamen- 
tary causes 


§  5. 
Land 


Section  48. 

§1- 
Cases  and 
j)oints  re- 
served for 
Divisional 
Courts  lor 
Courts  of 
Appeal]. (/>) 

§2. 
J.  A.,  1875, 
S.  22. 
Right  to 
liave  issues 
properly 
suhiiiitted 
to  jury. 


§3. 
Bight  en 
forced  by 
exceiitidu 
ou  record. 


And  every  cause  or  matter  wliicli,  at  the  commence- 
ment of  this  Act,  may  be  depending  in  the  Court  of 
Chancery,  the  Court  of  Probate,  the  Court  for  Matri- 
monial Causes  and  Matters,  and  the  Landed  Estates 
Court  respectively,  shall  (subject  to  the  power  of  transfer) 
be  assigned  to  the  same  Judge  in  or  to  whose  Court  the 
same  may  have  been  depending  or  attached  at  the  com- 
mencement of  this  Act. 

And  every  cause  or  matter  which,  after  the  commence- 
ment of  this  Act,  may  be  commenced  in  the  Chancery 
Division  of  the  said  High  Court  shall  l^e  assigned  to  one 
of  the  Judges  thereof  in  the  same  manner  as  heretofore : 
Provided  that  (subject  to  any  Rules  of  Covirt,  and  to 
the  power  of  transfer)  all  causes  and  matters  which,  if 
this  Act  had  not  passed,  would  have  been  within  the 
exclusive  cognizance  of  the  Court  of  Probate  or  the 
Court  for  Matrimonial  Causes  and  Matters  shall  be  assigned 
to  the  Judge  of  the  Probate  and  Matrimonial  Division 
for  tlie  time  being.  («) 

And  all  matters  within  the  exclusive  jurisdiction  of 
the  Landed  Estates  Court  shall  be  assigned  to  the  Land 
Judges. 

48.  Subject  to  any  Pvules  of  Court,  any  Judge  of  the 
said  High  Court,  sittmg  in  the  exercise  of  its  jurisdiction 
elsewhere  than  in  a  Divisional  Court,  may  reserve  any 
case,  or  any  point  in  a  case,  for  the  consideration  of  a 
Divisional  Court,  or  may  direct  any  case,  or  pomt  in  a 
case  to  be  argued  before  any  such  Court  ;  and  any  such 
Court  shall  have  power  to  hear  and  determine  any  such 
case  or  point  so  reserved  or  so  directed  to  be  argued  : 

Provided  that  nothing  in  this  Act,  or  in  any  rule  made 
under  its  provisions,  sliall  take  away  or  prejudice  the 
right  of  any  party  to  any  action  to  have  [questions  of 
fact  tried  by  a  jury  in  such  cases  as  he  might  heretofore 
of  right  have  so  required,  nor  upon  any  trial  before  a 
jury  to  have](c')  the  issues  for  trial  by  jury  submitted 
and  left  by  the  Judge  to  the  juiy  before  whom  the  same 
shall  come  fur  trial,  with  a  proper  and  complete  direction 
to  the  jury  upon  the  law  and  as  to  the  evidence  applicable 
to  such  issues : 

Provided  also,  that  such  right  may  be  enforced  by 
motion  in  the  High  Court  of  Justice,  or  by  motion  in  the 
Court  of  Appeal  founded  upon  an  exception  entered 
upon  or  ainicxed  to  the  record. 

{a)    Vide  ante,  section  3,  §  8. 

(Ij)  This  seems  to  be  an  error  in  authorized  copy  of  Act. 

(c)  JJot  in  English  Act. 


40  Sz  41  Vict.,  c.  57.  467 

49.  From  and  after  the   commencement  of  this  Act,   Section  i'*. 
any  person  aggrieved  by  any  decision  or  order  upon  any  l^^i  ^.^^^.^ 
question  of  law,  made  bv  any  Judge  or  Judges  of  Assize  reserved 
under  the  Landlord  and  Tenant  (Ireland)  Act,  1870,(a)  or,  o^ij'p^i, 
in  the  case  of  the  county  or  the  county  of  the  city  of 
Dublin,  made  by  the  Judges  mentioned  in  that  Act  in 

that  behalf,  may  require  the  Judge  or  Judges  making 
such  decision  or  order  to  reserve  such  question  of  law  by 
Avay  of  case  stated  for  the  consideration  of  the  Court  of 
Appeal  ;  and  the  same  shall  thereupon  be  reserved 
accordingly  in  such  manner  and  form  as  shall  be  pre- 
scribed by  lilies  made  in  pursuance  of  the  thirty-hrst 
section  of  the  said  Act. 

50.  The   jurisdiction    and    authorities    in    relation    to  Sectinn  50. 
questions  of  law  arising  in  criminal  trials  which  are  now       ~~ 
vested  in  the  Justices  of  either  Bench  and  the  Barons  of  Jurisdic- 
tlie  Exchequer  by  the  Act  of  the  session  of  the  eleventh  t'*^"  ''^°  ^'^ 

•  Crown 

and  twelfth  years  of  the  reign  of  Her  present  Majesty,  cases  re- 
chapter  seventy -eight,  intituled  "  An  Act  for  the  further  served  to 
amendment  of  the  administration  of  the  Criminal  Law,"  ci^ed^by 
or  any  Act  amending  the  same,  shall  and  may  be  exercised  five  of  the 
after  the  commencement  of  this  Act  bv  the  Judges  of  the  t"'1^^ic-o 
High  Court  of  Justice,  or  five  of  them  at  the  least,  of  s.  47. 
whom  the  Lord  Chief  Justice,  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  §  2. 
of  the  said  High  Court  in  manner  aforesaid  shall  be  final  pecisiun 
and  without  appeal. 

And  no  appeal  shall  lie  from  any  judgment  of  the  said        §  3. 
High  Court  in  any  criminal  cause  or  matter,  save  for  1^^°  appeal 
some  error  of  law  apparent  upon  the  record,  as  to  which  cases  but 
no  question  shall  have  been  reserved  for  the  consideration  fur  error 
of  the  said  Judges  under  the  said  Act  of  the  eleventh  and  apparent, 
twelfth  years  of  Her  Majesty's  reign. 

51.  [In  proceedings   in  the   Queen's  Bench,  Common  Section  ;>\. 
Pleas,  and  Exchequer  Divisions  respectively],  (6)  every       — : 
motion  for  a  new  trial  of  any  cause  or  matter  on  which  a  motions 
verdict  has  been  found  by  a  jury,  or  by  a  Judge  without  before 

a  jury,  and  every  motion  in  arrest  of  judgment,  or  to  couns!"^ 
enter  judgment  non  obstante  veredicto,  or  to   enter  aj.  A.,  i87:<, 
verdict  for  plaintiff  or  defendant,  or  to  enter  a  nonsuit,  ^-  '^^•""^^' 
or  to  reduce  damages,  shall  be  heard  before  a  Divisional 
Court ;    and    no    appeal    shall  lie    from    any    judgment 
founded  upon  and  applying  any  verdict  unless  a  motion 
has  been  made  or  other  proceeding  taken  before  a  Divi- 

(a)  33  &  34  Yic.  c.  40.  (h)  Not  in  English  Act. 


468         SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 

Sertion  51.  sional  Court  to  set  aside  or  reverse  such  verdict,  or  the 
judgment,  if  any,  founded  thereon,  in  which  case  an 
apjjeal  shall  lie  to  the  Court  of  Appeal  from  the  decision 
of  the  Divisional  Court  upon  such  motion  or  other  pro- 
ceeduag. 
Section  tjI.  52.  ISTo  order  made  by  the  High  Court  of  Justice  or 
^  , ^  any  Judfje  thereof,  by  the  consent  of  parties,  or  as  to  costs 

Orders  not         i       ,     p  /.   ,     ,       i  \    c,    ,     \^        ^•  j.- 

subject  to     only,  being  costs  which  by  law  are  lett  to  the  discretion 
appeal.  _^    of  the  Court,  shall  be  subject  to  any  ap})eal,  unless  by 
"s.  4'j!'     '"'  leave  of  the  Court  or  Judge  making  such  order. 
SecUo)i  53.        '^'i-   Subject  to  the  provisions  of  this  Act  and  of  Rules 

of  Court,  the  costs  of  and  incident  to  every  proceeding  in 

Order  LT.  the  High  Court  of  Justice  [and  Court  of  Appeal  respec- 
J.  A.,  1875.  tively]  (a)  shall  be  in  the  discretion  of  the  Court,  but 
nothing  herein  contained  shall  deprive  a  trustee,  mort- 
gagee, or  other  person  of  any  right  to  costs  out  of  a  par- 
ticular estate  or  fund  to  which  he  would  be  entitled 
according  to  the  rules  hitherto  acted  on  in  Courts  of 
Equity:  Provided,  that  [(subject  to  all  existing  enact- 
ments, limiting,  regulating,  or  affecting  the  costs  payable 
in  any  action  by  reference  to  the  amount  recovered 
therein)],  (h)  the  costs  of  every  action,  question,  and  issue 
tried  by  a  jury  shall  follow  the  event,  unless,  upon 
application  made,  (c)  the  Judge  at  the  trial  or  the  Court 
shall  for  special  cause  shown  and  mentioned  in  the  order 
otherwise  direct ;  [and  any  order  of  a  Judge  as  to  such 
costs  may  be  discharged  or  varied  by  a  Divisional  Court  : 
And  provided  also,  that  in  all  actions  for  libel  where  the 
jury  shall  give  damages  under  forty  shillings,  the  plain- 
tiff shall  not  be  entitled  to  more  costs  than  damages],  (b) 
[Where  in  any  proceeding  in  the  High  Court  of  Justice 
or  Court  of  Appeal  the  costs  of  any  party  to  the  pro- 
ceeding are  ordered  to  be  paid  or  borne  by  another  party 
to  the  proceeding,  or  by  a  fund  or  estate,  those  costs  shall, 
if  the  Court  so  directs,  include,  in  addition  to  the  costs 
now  allowed  on  taxation  as  between  party  and  party,  all 
or  any  other  costs,  charges,  and  expenses  reasonably  in- 
curred for  the  purposes  of  the  proceeding  ;  but  this  enact- 
ment shall  not  apply  to  any  proceeding  for  the  recovery 
of  a  penalty. ](^) 
Scciion  rA.  54.  Every  order  made  by  a  Judge  of  the  said  High 
T,.  ■;  C(jurt  in  Chambers,  except  orders  made  in  the  exercise 

ing  orders  of  liis  discretion  as  to  costs  m  cases  where  under  the  pro- 
inadein  visions  of  the  next  preceding  section  a  riglit  of  appeal  is 
J.  A.,  i»73,  not  expressly  given,  may  be  set  aside  or  dischargetl  upon 
"•  io-  notice  by  any  Divisional  Court,  or  liy  the  Judge  sitting 

(«)  Not  ill  EiiKlisIi  Act.  (b)  Not  in  English  Order. 

(c)  Ala<le  "  at  the  trial "  in  English  Order. 


40  &  41  Vict.,  c.  57.  469 

in  Court,  according  to  the  course  and  practice  of  the  Divi-  Section  54. 
sion  of  the  High  Court  to  wliich  the  particular  cause  or 
matter  in  which  such  order  is  made  may  be  assigned ; 
and  no  apj^eal  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  Coiu-t  of  Ap})eal. 

55.  In  case  in  the   Chancery  Division   of  the   High  Section  55. 
Court  of  Justice  from  the  amount  of  business,  or  in  any       ~ 
Division  of  the  said  Court  from  the  absence  of  a  Judge  Appl-al 

or  Judges  through  illness,  it  shall  be  found  expedient  that  "»''>'  ^''  ii 
some    or   one   of  the    Ordinary  Judges   of  the  Court  of  Division. 
Appeal  appointed  after  the  passing  of  this  Act  should  J- a.,  is73, 
assist  in  transacting   the  business  of  such   Division,  it  '''  ^  ' 
shall  be  lawful  for  them  and  him  so  to  do ;  and  while  so 
sitting  and  acting  such  Judge  or  Judges  shall  have  all  the 
power,  jurisdiction,  and  authority  of  a  Judge  or  Judges 
of  the  said  High  Court  of  Justice. 

56.  Every  appeal  to  the  Court  of  Appeal  shall,  where  Sectionlo. 

the  subject-matter  of  the  appeal  is  a  final  order,  decree,  or        ^  ^ 

judgment,  be  heard  before  not  less  than  three  Judges  of  court  of 

the  said  Coui-t  sittuis:  tog-ether,  and  shall,  when  the  sub-  Appeal, 

®       *  three 

jeet-matter  of  the  appeal  is  an  interlocutory  ordei",  deci-ee,  judges. 

or  judgment,  be  heai-d  before  not  less  than  two  Judges  of  J-  a.,  1875, 

the  said  Court  sitting  together. 

Any  doubt  which  may  arise  as  to  what  decrees,  oi'ders,        §  2. 
or  judgments  are  final,  and  what  are  interlocutory,  shall 
be  determined  by  the  Court  of  Appeal. 

Any  direction  incidental  to  a  proceeding  in  appeal,  not        §  3. 
involving    the  hearinsr  of  such   decrees,   iudgments,    or  P°"''^'' <*f 

o  o  .''*".  single 

oixlers,  final  or  interlocutory,  as  aforesaid,  may  be  given  judge. 

by  a  single  Judge  of  the    Court  of  Appeal,  and  a  single  J- A.,  isrs, 

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  discharged  or  varied  by  the  Court  of  Appeal.  Sectwii  07. 

57.  No  Judge  of  the  said  Court  of  Appeal  shall  sit  as  No  judge  to 
a  Judge  on  the  hearing  of  an  appeal  from  any  judgment  ^j.^^"  fj^^f^^* 
or  order   made   in  a    cause  or  matter  heard  by  himself  own  order, 
either  sitting  alone  or  with  other  Judges.  J-  ^-i  1875, 

58.  All  such  ai-rangements  as  may   be   necessary  or  ^'^crtion  as. 

proper  for  the  transaction  of  the  business  from  time  to       

time  pending  before  the  Court  of  Appeal  shall  be  made  nj^ftg^/Jr 
by  and  untler  the  direction  of  the  President   and  the  business  of 
other(a)  Judges  of  the  said  Court  of  Appeal.  Ap-.oar^ 

— J.  A.,  1S73, 

(a)  "Ex-officio  and  ordinary,"  English  Act.  s.  55. 


470    SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 


PART  lY. 


Section  59. 

Assessors 
may  be 
called. 
J.  A.,  1873, 
s.  56. 


Section  GO. 

§  1- 
Provisions 
as  to 

arbitration 
applied 
to  new 
Courts. 

§2. 
Remitter 
of  actions 
to  Civil 

EiU  Courts. 


§3. 
To  include 
ejectments 
for  non- 
paynient 
of  rent. 


Section  61. 

Rules  of 
Court  may 
be  made 
before  the 
corameuce- 
mcnt  of 
Act  by 
Order  in 
Council. 
J.  A.,  1875 
a.  17. 


Trial  and  Procedure. 

59.  Subject  to  any  Rules  of  Court  and  to  such  riglit  as 
may  now  exist  to  have  pai'ticulai*  cases  submitted  to  the 
verdict  of  a  jury,  the  High  Court  or  the  Court  of  Appeal 
may,  in  any  civil  cause  or  matter  as  aforesaid  in  which  it 
may  think  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  assessors  shall  be  determined  by  the  Court. 

GO.  The  provisions  contained  in  the  sections  of  "  The 
Common  Law  Procedure  Act  (Ireland),  18.56, "(«)  in 
reference  to  arbitration,  shall  apply  to  the  High  Court  of 
Justice  and  the  several  Divisions  thereof,  and  the  Judges 
of  the  same  respectively,  in  the  same  manner  as  formerly 
to  the  Superior  Courts  of  Common  Law  and  the  Judges 
of  the  same  respectively. 

The  powers  conferred  by  the  fifth  and  sixth  sections  of 
"  The  Common  Law  Procedure  Act  (Ireland),  187(),"(i) 
upon  the  Superior  Courts  of  Common  Law  and  the 
Judges  of  the  same  respectively  shall  apply  to  the  High 
Court  of  Justice,  the  Divisions  of  the  same,  and  the 
Judges  of  such  Divisions  respectively,  in  the  same  manner 
as  formerly  to  the  Superior  Courts  of  Common  Law  and 
the  Judges  of  the  same  respectively. 

The  provisions  contained  in  the  said  last-mentioned 
sections,  enabling  actions  to  be  remitted  to  the  Civil  Bill 
Courts,  shall  ap})ly  to  ejectments  for  non-payment  of  rent 
commenced  or  pending  in  the  High  Court  of  Justice 
where  the  same  .shall  be  within  the  jurisdiction  of  tlie 
Civil  Bill  Courts.  Such  powers  to  be  exercised  upon 
such  application  and  in  such  manner  as  shall  be  provided 
by  general  Rules  of  Court. 

Gl.  The  Lord  Lieutenant  may  at  anytime  after  the 
passing  and  before  the  commencement  of  this  Act,  by 
Order  in  Council,  made  upon  the  recommendation  of  the 
Lord  Chancellor,  the  Lord  Justice  of  Appeal,  the  Chief 
Justice,  the  Master  of  the  Rolls,  the  Chief  Justice  of  the 
Common  Pleas,  and  the  Chief  Baron,  or  any  three  of 
them,  and  of  the  other  Judges  of  the  several  Courts  in- 
tended to  be  united  and  consolidated  by  this  Act,  or  of  a 
majority  of  such  other  Judges,  make  rules,  to  be  styled 
Pwules  of  Court,  for  carrying  this  Act  into  efiect,  and  in 


(«)  I'J  &  20  Vic,  c.  102. 


(i)  S3  &.  S'l  Vic,  c.  lOU, 


40  &  41  YicT.,  c.  57.  471 

particular  for  all  or  any  of  tlie  following  matters  ;(a)tliat  Section  ci. 
is  to  say, 

(l.j  For  regulating  the  sittings  of  the  High  Court  of  As  to 
Justice  and  the  Court  of  Appeal,  and  of  any  Divisional  sittings. 
or  other  Coui'ts  thereof  respectively,  and  of  the  Judges  of 
the  said  High  Court  sitting  in  Chambers  ;  and 

(2.)  For  regulating  the  |)leading,  practice,  and  procedure  Pkadings, 
in  the   Hioh   Court    of    Justice   and    Court   of  Appeal  Practice, 

r-iTii  T  -1  •  r  -  and  proce- 

[mcludmg  all    matters    connected    with  writs,  lorms  oi  dure, 
actions,  parties  to  actions,  evidence,  and  mode  and  place 
of  trial,  and  for  the  reporting  by  a  competent  shorthand  Short-hand 
writer  of  the  evidence  in  all  cases  of  trials  by  jury  when-  ^^'i'"'-'''s- 
ever  it  may  be  expedient  or  desirable  to  do  so  ;  and] (6) 

(3.)  Generally,  for  regulating  any  matters  relating  to  D^tips  of 
the  practice  and  procedure    of  the  said    Courts  respec-  officers, 
tively,   or   to   the  duties   of  the    officers   thereof,  or   of 
the  Supreme  Court,  or  to  the  costs  of  proceedings  therein 
[(including  the  costs   to  be  allowed  to  solicitors  of  the  costs  to 
Supreme  Court  in   respect  of  business  transacted  in  or  solicitors, 
before  any  of  such  Courts  or  the  offices  thereof,  or  the  fees.  Fees,  Ac , 
remuneration,  and  expenses  to  be  allowed  to  witnesses,  ^^^J^--^;,, 
or  the  fees  to  be   payable  to  or  receivable  by  sheriiis  for 
the  discharge  of  any  duties  under  this  Act  or  in  obedience 
to  the  order    of  the    Supreme    Court,   or    any  Division 
or  Master  thereof),  or  relating  to   the  conduct  of  civil  Conduct  of 
or  criminal  business  coming  within  the  cognizance  of  the  crimjuai 
said    Courts    respectively,    for   which   2)rovision   is    not 
exj)ressly  made  by  this  Act  ■,{b)  and] 

(4.)  [For  regulating  the  sittings  of  Judges  in  Cham-  Chamber 
bers,  the   issuing  and  hearing  of   summonses,    and    the  ^'"^"S*- 
allowance  or  disallowance  of  the  expense  of  the    atten- 
dance of  counsel  upon  such  hearings,  and,  generally,  for 
the    efficient    despatch    of   Chamber  business  under    the 
provisions  of  this  Act]  ;  and(6) 

(5.)  [For  prescribing,  regulating,  or  doing  anything  Genpral 
which  under  this  Act  may  be  prescribed,  regulated,  or  I'o^ers. 
done  by  Rules  of  Court]. (i) 

From  and  after  the  commencement  of  this  Act,  the        §  «• 

Lord  Lieutenant  may  at  any  time,  with  the  concurrence  nien't"of"°^' 

of  a  majority  of  the  Judges  of  the  Supreme  Court  present  altered 

at  any  meeting  for  that  purpose  held  (of  which  majority  q"]';^  \^ 

the   Lord   Chancellor  shall  be  one),  by  Order  in  Council  Council 

alter  and  annul  anv  Rules  of  Court  for  the  time  beinff  in  '^^"^^  c""' 
p  11  '  1  -J.!  PI-        ciurence 

lorce,  and  have  and  exercise  the  same  power  ot  making  of  judges. 

('0  English  Act  adds  "  So  far  as  they  are  not  provided  for  by  the  rules 
in  the  First  Schedule  to  this  Act." 
(6)  Not  in  English  Act. 


472         SUPHEME  COURT  OF  JUDICATURE  ACT  (IRELAND),    1877. 


Section  PI. 


§7. 
Regard 
iKid  to 
Kiiglish 
link's  of 
Court. 


§8. 
Parliamen- 
tary 
saiiction. 


§9. 


§10. 
Other 
si)ecial 
provisions 
as  to 
Itules. 

§11. 
Scheduled 
Kules  to 
rt-gulate 
proceed- 
ings. 


Sect'wn  62. 


Circuits 
and  assizes. 
J.  A.,  I87J, 
B.  23. 


E-ules  of  Court  as  is  by  this  section  vested  in  the  Lord 
Lieutenant,  on  the  recommendation  of  the  Judges  herein- 
before specified,  before  the  commencement  of  this  Act.ia) 

In  making,  altering,  or  annulling  Rules  of  Court  in 
pursuance  of  this  Act,  regard  shall  be  had  to  the  Rules  of 
Court  for  the  time  being  in  force  vmder  the  provisions  of 
the  Supreme  Court  of  Judicature  Acts,  1873  and  1875, 
so  as  that  the  pleading,  practice,  and  procedure  in  the 
High  Court  of  Justice  and  Court  of  Appeal  respectively 
constituted  by  this  Act  shall,  so  far  as  may  be  practicable 
and  convenient,  having  regard  to  the  ditference  of  the 
laws  and  circumstances  of  the  two  counti-ies,  be  the  same 
as  the  pleading,  practice,  and  procedure  in  the  High 
Court  of  Justice  and  Court  of  Appeal  respectively  con- 
stituted by  the  said  Acts. 

All  Rules  of  Court  made  in  pursuance  of  this  part  of 
this  Act  shall  be  laid  before  each  Hoiise  of  Parliament 
within  such  time  and  shall  be  subject  to  be  annvilled  in 
such  manner  as  is  in  this  Act  provided. 

All  Rules  of  Court  made  in  pursuance  of  this  pai-t  of 
this  Act,  if  made  before  the  commencement  of  this  Act, 
shall,  from  and  after  the  commencement  of  this  Act, 
and  if  made  after  the  commencement  of  this  Act,  shall, 
from  and  after  the  time  when  they  come  into  o}jeration, 
regulate  all  matters  to  which  they  extend,  until  annulled 
or  altered  in  pui-suance  of  this  Act. 

The  powers  to  make  Rules  of  Court  contained  in  this 
section  are  not  to  affect  special  provisions  in  this  Act 
enabling  rules  to  be  made  in  particular  instances. 

The  Rules  contained  in  the  schedule  to  this  Act  (which 
shall  be  read  and  taken  as  part  of  this  Act)  shall  come 
into  operation  immediately  on  the  commencement  of  this 
Act,  and  as  to  all  mattei's  to  which  they  extend  shall 
thenceforth  regulate  the  proceedings  in  the  Higli  Court 
of  Justice  and  the  Court  of  Aj^jeal  respectively,  unless 
and  until,  by  the  authority  herein  provided  in  that  behalf, 
any  of  them  may  he  altered  or  varied  ;  but  such  Rules, 
and  also  all  Rules  to  be  made  before  the  commencement 
of  this  Act  as  herein  mentioned,  shall,  for  all  the  purposes 
of  this  Act,  be  Rules  of  Court  capable  of  being  annulled 
or  altered  by  the  same  authority  by  which  any  other 
Rules  of  Court  may  be  made,  altered,  or  annulled  after 
the  commencement  of  this  Act. 

G2.  The  Lord  Lieutenant  may  from  time  to  time,  after 
the  commencement  of  this  Act,  by  Order  in  C!ouncil,  re- 


(«)  The  Ivnu'Iis 
.Tudj;e.s,  iueludin!^ 
Couacil. 


1  Act  en.-ilili'S  the  Sii|iri>iiie  Court  liy  a  majority  of  its 
the  Lord  Chancellor,  to  do  this  without  any  orilcr  in 


40  &  41  Vict.,  c.  57.  473 

arrange  the  circuits  or  reduce  their  number,  and  direct  Section  C2. 
what  counties  and  towns  shall  be  upon  each  circuit.  All 
Orders  in  Council  made  in  pursuance  of  this  section  shall 
be  laid  before  each  House  of  Parliament  within  such  time 
and  shall  be  subject  to  be  annulled  in  such  manner  as  is 
in  this  Act  provided. 

63.  "The  Winter  Assizes  Act,  1876,"(rt)  (excepting  sec-  Section  C3. 
tion  5,)  shall  from  and  after  the  passing  of  this  Act  extend  to  ^iiu^ 
Ireland,  and  all  the  powers  thereby  vested  as  to  England  Assizes 

in  Her  Majesty  shall  as  to  Ireland  be  vested  in  and  may  p^'^^^g 
be  exercised  by  the  Lord  Lieutenant,  by  and  with  the  may  be 
advice  and  consent  of  the  Privy  Council  in  Ireland,  and  exemsed 
every  Order  of  the  Lord  Lieutenant  in  Council  made  in  ju  council, 
pursuance  of  the  said  Act,  and  published  in  the  Dublin 
Gazette,  shall  have  the  like  effect  in  Ireland  as  an  Order 
in  Council  made  in  pursuance  of  the  said  Act  would  have 
in  England,  and  provision  may  be  made  by  such  Order 
for  the  hearing  and   despatch   at  any  winter  assizes  as 
well  of  criminal  business  as  also  of  such  civil  business  as 
may  be  by  such  Order  prescribed. 

64.  All  Rules  and  Orders  of  Court  Avhich  shall  be  in  Section  6i. 
force  in  the  Court  of  Probate  and  the  Court  for  Matri-  probate 
monial  Causes  and  Matters  respectively  at  the  time  of  the  aud  Matri- 
couimenccment  of  this  Act  except  so  far  as  they  shall  by  ^^^^^^^ 
Rules  of  Court  be  expressly  varied,  shall   remain  and  be  Rules  of 
in  force  in  the  High  Court  of  Justice  and  in  the  Court  of  ^"^  ^igh 
Appeal  respectively  in  the  same  manner  in  all  respects  gee  ,j.  A., 
as  if  they  had  been  Rules  of  Covirt  under  this  Act.  18^5,  s.  is. 

65.  Subject  to  any  Rules  of  Court  to  be  made  under  section  na. 

and  by  virtue  of  this  Act,  the  practice  and  procedure  in       

all  criminal  causes  and  matters  whatsoever  in  the  High  criminal 
Court  of  Justice,  including  the  practice  and  procedure  procedure 
with  respect  to  Crown  cases  reserved,  shall  be  the  same  unauered. 
as  the  practice  and  procedure  in  similar  causes  and  matters 

before  the  passing  of  this  Act. 

[In   cases  on   the   Crown  side  of  the  Queen's  Bench         §  2- 
Division  a  writ  of  error  to  the  House  of  Lords  may  issue  £rTOV°to 
in  like  manner,  and  subject  to  like  conditions  and  per-  House  of 
mission,  and  in  respect  of  like  proceedings,  as  such  writ  Lords, 
woidd  have  issued  from  the  Court  of  Queen's  Bench  if 
this  Act  had  not  been  passed.]  (b) 

66.  Nothing  in  this  Act,  or  in  any  Rules  of  Court  to  sectinn  06. 
be  made  by  virtue  hereof,  save  so  far  as  relates  to  the       — . 
power  of  the  Court  for  special  reasons  to  allow  depositions  evidence 
or  affidavits  to  be  read,  shall  affect  the  mode  of  giving  not 
evidence  by  the  oi-al  examination  of  witnesses  in  trials  by  j  ^  ^'jg.. 

(a)  3d  &  41)  Vic.  c.  37.  (/')  Not  in  English  Act. 


474        SUPREME  COUET  OF  JUDICATURE  ACT  (IRELAND),  1877. 


Section  66. 


Section  67. 

Existing 
procedure 
of  Courts 
not  incon- 
sistent witli 
Act  ijre- 
served. 
J.  A.,  1875, 
s.  21. 


Section  68. 

Statutory 
jn-ovisions 
of  practice 
may  be 
modified 
])y  Rules 
of  Court. 


Section  00. 

Orders 
and  Rules 
to  be  laid 
before 
Parlia- 
ment, &c. 
J.  A.,  1875, 
s.  25. 


Section  70. 

Council  of 
Judfres  to 
consider 


jury,  or  the  rules  of   evidence,  or  the   law  relating  to 
jurymen  or  juries. 

67.  Save  as  by  this  Act  or  by  any  Rules  of  Coui^t  may 
be  otherwise  provided,  all  forms  and  methods  of  procedure 
which  at  the  commencement  of  this  Act  were  in  force  in 
any  of  the  Courts  whose  jurisdiction  is  hereby  transferred 
to  the  said  High  Court,  and  to  the  said  Court  of  Appeal, 
respectively,  under  or  by  virtue  of  any  law,  custom, 
general  orders,  or  rules  whatsoever,  and  which  are  not 
inconsistent  with  this  Act  or  any  Rules  of  Court,  may 
continue  to  be  used  and  practised  in  the  said  High  Court 
of  Jitstice,  and  the  said  Court  of  Appeal,  respectively,  in 
such  and  the  like  cases,  and  for  such  and  the  like  purposes, 
as  those  to  which  they  would  have  been  applicable  in  the 
respective  Courts  of  which  the  jurisdiction  is  so  transferred 
if  this  Act  had  not  passed. 

OS.  Where  any  provisions  in  respect  of  the  practice  or 
procedure  of  any  Courts,  the  jurisdiction  of  which  is 
transferred  by  this  Act  to  the  High  Coiirt  of  Justice  or 
the  Court  of  Appeal,  are  contained  in  any  Act  of  Parlia- 
ment, Rules  of  Court  may  be  made  for  modifying  such 
provisions  to  any  extent  that  may  be  deemed  necessary 
for  adapting  the  same  to  the  High  Court  of  Justice  and 
the  Court  of  Appeal. 

Any  provisions  relating  to  the  payment,  transfer,  or 
deposit  into,  or  in,  or  out  of  any  Court  of  any  money  or 
property,  or  to  the  dealing  therewith,  shall,  for  the 
purposes  of  this  section,  be  deemed  to  be  provisions  relating 
to  practice  and  procedui'e. 

(J9.  Every  general  rule,  order  in  Council,  rule  of  Court, 
and  general  order  required  by  this  Act  to  bn  laid  before 
each  House  of  Parliament,  shall  be  so  laid  within  forty 
days  next  after  it  is  made,  if  Parliament  is  then  sitting, 
or  if  not,  within  forty  days  after  the  commencement  of 
the  then  next  ensuing  session  ;  and  if  an  address  is  pre- 
sented to  Her  Majesty  by  either  House  of  Parliament, 
within  the  next  subsequent  one  hundred(a)  days  on  which 
the  said  House  shall  have  sat,  j)raying  that  any  such  rule 
or  order  may  be  annulled.  Her  Majesty  may  thereupon 
by  Order  in  Council  annul  the  same,  and  the  rule  or 
order  so  annulled  shall  thenceforth  Itecome  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. 

70.  A  Council  of  the  Judges  of  the  Supreme  Court,  of 
which   due  notice   shall  be  given  to  all  the  said  Judges, 

(a)  Forty  days  in  English  Act 


I 


40  &  41  Vict.,  c.  57.  475 

shall  assemble  once  at  least  in  every  year,  on  sucli  clay  or  Section  to. 
days  as  shall  be  fixed  by  the  Lord  Chancellor,  with  the  procedure 
concvirrence  of  the  Lord  Chief  Justice,  for  the  purpose  of  ainiaci- 
considering  tbe  operation  of  this  Act  and  of  the  Rules  of  t"ou  oT'^" 
Court  for  the  time  being  in  force,  and  also  the  working  justice. 
of  the  several  offices  and  the  arrangements  relative  to  the  •^•^.^  '^^'^^^ 
duties  of  the  officers  of  the  said  Courts  respectively,  and 
of  inquiring  and  examining  into  any  defects  which  may 
appear  to  exist  in  the  system  of  procedure  or  the  adminis- 
tration of  the  law  in  the  High  Court  of  Justice  or  the 
said  Court  of  Appeal,  or  in  any  other  Court  from  which 
any  appeal  lies  to  the   said  High  Court  or  any  Judge 
thereof,  or  to  the  Court  of  Appeal ;  and  they  shall  report 
annually  to  the  Chief  Seci'etary  to  the  Jjord  Lieutenant 
of  Ireland  what  (if  any)  amendments  or  alterations  it 
would  in  their  judgment  be  expedient  to  make  in  this 
Act,  or  otherwise  relating  to  the  administration  of  justice, 
and   what  other  provisions,   (if  any,)  which  cannot  be 
carried  into  effect  without  the  authority  of  Parliament,  it 
would  be  expedient  to  make  for  the  better  administi-ation 
of  justice.     An  Extraordinary  Council  of  the  said  Judges 
may  also  at  any  time  be  convened  by  the  Lord  Chancellor. 

71.  All   Acts  of  Parliament  relating  to  the  several  Section'!. 
Courts  and  Judges  whose  iurisdiction  is  hereby  transferred       

Stitutcs 

to  the  High  Court  of  Justice  and  the  Court  of  Appeal  i-eiatiiv'  to 
respectively,  or  wherein  any  of  such  Courts  or  Judges  are  former 
mentioned  or  referred  to,  shall  be  construed  and  take  appw  under 
effect,  so  far  as  relates  to  anything  done  or  to  be  done  this  Act. 
after  the  commencement  of  this  Act,  as  if  the  High  Court  J-^^^-.iS'S. 
of  Justice  or  the  Court  of  Appeal,  and  the  Judges  thereof, 
respectively,  as  the  case  may  be,  had  been  named  therein 
instead  of  such  Courts  or  Judges  whose  jurisdiction  is  so 
transferred  respectively ;   and  in   all   cases   not   hereby 
expressly  provided  for  in  which,  under  any  such  Act,  the 
concui'rence  or  the  advice  or  consent  of  the  Judge  or  any 
Judges,  or  of  any  number  of  the  Judges,  of  any  one  or 
more  of  the  Courts  whose  jiirisdiction  is  hereby  transferred 
to  the  High   Court  of  Justice  is  made  necessary  to  the 
exercise    of  any   jjower  or  authority  capable    of  being 
exercised   after   the    commencement  of   this   Act,    such 
power  or  authority  may  be  exercised  by  and  witli  the 
concurrence,  advice,  or  consent  of  the  same  or  a  like 
number  of  Judges  of  the  High  Court  of  Justice :    Provided 
always,  that  any  provisions  of  such  Acts  inconsistent  with 
the  provisions  of  this  Act  shall  be  and  the  same  are 
hereby  rej^ealed.]  {a) 

(a)  Not  ia  English  Act. 


470         SUPRExME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 


Section  72. 

§1- 
Transfer  of 
existing 
staff  of 
officers  to 
Court  of 
Judi- 
cature. 
J.  A.,  1S7.3, 
s.  77. 


§2. 
Rank,  &o. 
'I'enure  of 
ofUce,  .fee. 


§3. 
Clerk  of 
Errors. 


?  4. 
Rigliu  of 


PART  V. 

Officer's  and  Offices. 

72.  The  Receiver  Master  and  the  A ccountant-General 
in  Chancery,  and  the  Masters  in  the  Courts  of  Common 
Law,  the  Clerk  of  the  Crown  and  Hanaper,  the  Clerk  of 
the  Crown  of  the  Court  of  Queen's  Bench,  and  the  Taxing 
Masters,  Secretaries,  Registrars,  Clerk  of  Records  aud 
Writs,  Examiner  in  the  Court  of  Chancery,  Registrar  of 
the  Consolidated  Nisi  Prius  Court,  Clerks  of  the  Rules 
and  Pleadings  and  Record  Assistants,  Chief  and  other 
Clerks,  Commissioners  to  take  oaths  or  affidavits,  or  the 
acknowledgment  of  deeds  by  married  women.  Stamp 
Distributors,  Messengers,  Court  and  Office  Keepers,  HaU 
Porters,  (a)  Tipstaves,  Criers,  and  other  officers  and  assist- 
ants at  the  time  of  the  commencement  of  this  Act  attached 
to  any  Court  or  Judge  whose  jurisdiction  is  hereby  trans- 
ferred to  the  High  Court,  or  to  the  Court  of  Appeal,  and 
also  all  Registrars,  Clerks,  officers,  and  other  persons  at 
the  time  of  the  commencement  of  this  Act  engaged  in  the 
preparation  of  commissions  or  writs,  or  in  the  registration 
of  judgments  or  any  other  ministerial  duties  in  aid  of  or 
connected  with  any  Court  the  jurisdiction  of  which  is 
hereby  transferred  to  the  said  Courts  respectively,  also 
all  persons  who  were  officers  of  or  connected  with  the  late 
]\Iasters  of  the  Court  of  Chancery,  or  their  offices,  shall, 
from  and  after  the  commencement  of  this  Act,  be  attached 
to  the  Supreme  Court  of  Judicature  consisting  of  the 
High  Court  of  Justice  and  the  Court  of  Appeal. 

I'lie  officers  so  attached  shall  hare  the  same  rank  and 
hold  their  offices  by  the  same  tenure  and  \ipon  the  same 
terms  and  conditions,  and  receive  the  same  salaries,  and, 
if  entitled  to  pensions,  be  entitled  to  the  same  pensions, 
as  if  this  Act  had  not  passed ;  any  such  officer  who  is 
removable  by  the  Court  to  which  he  is  now  attached  shall 
be  removable  by  the  Court  or  Division  to  which  he  shall 
be  attached  under  this  Act,  or  by  the  majoiity  of  the 
Judges  thereof,  for  the  same  causes  as  heretofore. 

[Provided,  however,  that  the  existing  Third  Assistant 
in  the  Writ  and  Seal  Office  and  the  existing  Clerk  of 
Errors  shall  not  be  entitled  to  the  Ijenetit  of  this  provision, 
and  shall  cease  to  be  officers  of  the  High  Court  upon  an 
order  of  the  Lord  Chancellor  to  that  efiect  without  being 
entitled  to  compensation.]  [b) 

The    existing    Registrars,    Assistant    Registrars,    and 


I 


(a)  Quere. 


(6)  Not  iu  English  Act. 


40  t  41  YiCT.,  c.  57.  477 

Clerks  to  the  Registrars  in  the  Chancery  Registrars'  office,   Sectioti  '■>. 
and  also  the  existing  officers  of  the  three  law  conrts,  shall,  succession 
so  long  as  they  continue  officers  of  the  Courts,  retain  any  in  Repis- 
right  of  succession  seci;red  to  them  by  Act  of  Parliament,  ami^L°*'^^'' 
so  as  to  entitle  [those  who  are  thus  secured] («)  in  their  Courts, 
respective   offices,   or  in   any  substituted   offices,  to  the 
succession  to   appointments    with    similar    or  analogous 
duties  and  with  eo^uivalent  salaries. 

All  officers  who  at  the  time  of  the  commencement  of  §  •''• 
this  Act  shall  be  attached  to  the  Court  of  Chancery,  or  n,em  of 
any  Judge  or  Master  thereof,  shall  be  attached  to  the  Officer.^ 
Chancery  Division  of  the   High   Court  of  Justice  ;   all  V  a'*",'^*-- 

^  .  ^  ,    '  J.  A.,  1  s7o, 

officers  who  at  the  time  of  the  commencement  of  this  Act  Ord.  Lx. 
shall  be  attached  to  the  Landed  Estates  Court,  or  the 
Judges  thereof,  shall  be  attached  to  the  Land  Judges  of 
the  Chancery  Division;  all  officers  who  at  the  time  of  the 
commencement  of  this  Act  shall  be  attached  to  the  Court 
of  Queen's  Bench  shall  be  attached  to  the  Queen's  Bench 
Division  of  the  said  High  Court;  and  all  officers  who  at 
the  time  of  the  commencement  of  this  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  this 
Act  shall  be  attached  to  the  Court  of  Exchequer  shall  be 
attached  to  the  Exchequer  Division  of  the  said  High 
Court;  and  all  officers  who  at  the  time  of  the  commence- 
ment of  this  Act  shall  be  attached  to  the  Court  of  Probate 
and  the  Court  for  Matrimonial  Causes  and  Matters  shall 
be  Attached  to  the  Probate  and  Matrimonial  Division  of 
the  said  High  Court. 

All  clerks  and  other  officers  attached  to  any  existing  §  ^• 
Judge  who  under  the  provisions  of  this  Act  shall  become  officers.* 
a  Judge  of  the  High  Court  of  Justice  or  of  the  Court  of 
Appeal  shall  continue  attached  to  such  Judge,  and  shall 
perform  the  same  duties  as  those  which  they  have  hitlierto 
performed^  or  duties  analogous  thereto,  and  shall  have 
the  same  rank,  and  hold  their  offices  by  the  same  tenure 
and  upon  the  same  terms  and  conditions,  and  receive  the 
same  salaries,  and,  if  entitled  to  pensions,  be  entitled  to 
the  same  pensions,  as  if  this  Act  had  not  passed. 

The   distribution   of  business    among    the    officers    so         §  7. 
attached  to  the  said  respective  Divisions,  the  duties  to  Distri- 
be  discharged  by  them,  and  any  re-arrangement  connected  business, 
therewith,  shall  be  regulated,  controlled,  and  directed  by 
Riiles  of  Court. 

(o)  Not  in  English  Act. 


478         SUPRE.^IE  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 


Section  72. 


Transfer 
of  officers 
from  one 
Division 
to  another. 


§9. 
Offices  con- 
solidated 
presently. 


§  10. 
Future  con- 
solidation 
of  offices. 


§11. 
Distribu- 
tion of 
business. 

§12. 
Duties  of 
officers  not 
deHued. 


If  the  services  of  any  existing  officer  attached  in  manner 
aforesaid  to  a  Division  shall  not  he  reqtiired  in  the 
Division  to  which  he  is  attached,  it  shall  be  lawful  for 
the  Lord  Chancellor,  with  the  concurrence  of  the  other 
Presidents  of  Divisions,  or  two  of  them,  by  order,  to 
transfer  such  officer  to  some  other  office  of  the  High 
Court  of  Justice,  or  some  Division  thereof,  subject, 
however,  to  the  conditions  herein-after  imposed  as  to  the 
nature  of  the  duties  he  is  to  perform. 

The  following  offices  shall  at  dates  to  be  fixed  by  the 
Lord  Chancellor,  with  the  concurrence  of  the  Treasury, 
but  within  two  years  from  the  commencement  of  this  Act, 
be  consolidated  in  manner  following  :  the  Taxing  Offices 
of  the  Common  Law  Courts  and  of  the  Landed  Estates 
Court  with  the  Taxing  Office  of  the  Court  of  Chancery, 
so  as  to  have  but  one  Taxing  Office  for  the  Supreme 
Court  and  the  several  Courts  and  Divisions  thereof;  the 
Office  of  Accountant  in  the  Landed  Estates  Court  with  the 
Office  of  Accountant-General  in  the  Court  of  Chancery, 
so  as  to  have  but  one  accounting  department  for  the 
Supreme  Court  and  all  Courts  and  Divisions  thereof ;  the 
Writ  and  Seal  Office  of  the  Law  Courts  with  the  Record 
and  Writ  Office  in  Chancery,  so  as  to  have  but  one  office 
out  of  which  all  writs  and  summonses  to  commence 
proceedings  in  the  High  Court  or  any  Division  thereof 
may  issue,  and  in  which  the  records  of  all  proceedings 
thei-ein  may  be  preserved  ;  and  the  Notice  Office  of  the 
Landed  Estates  Court  with  the  Notice  Office  of  the  Court 
of  Chancery. 

Subject  to  the  provisions  in  this  Act  as  to  tenure  and 
salary  of  existing  officers,  and  as  to  the  discharge  by  them 
of  analogous  duties  only,  the  Lord  Chancellor,  the  Chief 
Justice,  the  Chief  Justice  of  the  Common  Pleas,  and  the 
Chief  Baron,  or  any  two  of  them,  of  whom  the  Lord 
Chancellor  shall  be  one,  with  the  concurrence  of  the 
Treasury,  may,  by  order,  consolidate  any  other  offices  of 
the  Courts  whose  jurisdiction  is  hereby  transferred  to 
the  Supreme  Court  in  any  cases  where  the  union  of  the 
existing  Courts  into  one  Supreme  C6urt  shall  render  it 
no  longer  necessary  or  expedient  to  retain  such  offices 
separate. 

The  distribution  of  business  in  the  offices  so  united  and 
consolidated,  and  the  duties  to  be  discharged  by  the 
oOicers  thereof,  shall  be  regulated  and  directed  by  Pailes 
of  Court. 

All  other  officers  and  persons  (if  any)  hereby  attaclied 
to  the  Supreme  Court,  for  the  regulation  of  whose  duties 


40  &  n  YiCT.,  c.  57.  479 

provision  has  not  been  lierein-before  made,  shall  have  'Section  72. 
their  duties  defined  by  the  Lord  Chancellor. 

An  existing  officer  hei'eby  attached  to  the  Supreme       §  is. 
Court  or  any  Court  or   Division  thereof  shall  not   be  required  to 
required  to  discharge  any  duties  which  are  not  either  the  discharge 
same  as  or  similar  or  analogous  to  those  which  he  per-  tue^same  or 
formed  immefliately  before  the  commencement  of  this  analogous. 
Act ;  and  in  case  of  question  as  to  the  duties  proposed  to 
be  imposed  iipon  an  officer  being  similar  or  analogous, 
the  Lord  Chancellor  shall  decide,  having  regard  to  the 
rank  and  position  pre^T.ously  held  by  such  officer. 

The   Lord  Chancellor  may,  with  the  consent  of  the       §  i^- 
Treasury,  increase  the  salary  of  any  officer  who  is  by  this  ,;  ,iary  wiih 
Act  attached  to  the  Supreme  Court,  or  any  Court,  Division,  duties. 
or  Judge  thereof,  and  whose  duties  are  increased  by  reason 
of  the  passing  of  this  Act. 

In  case  it  shall  appear  to  the  Lord  Chancellor  that,  by       §  \^- 
reason  of  the  consolidation  or  aboHtion  of  offices  under  officers  on 
the  provisions  of  this  Act,  the  continuance  of  the  services  compensa- 
of  any  officer  holding  during  good  behaviour,  or  during 
good  behaviour  subject  to  removal  for  cause  by  some 
Court  or  Judge,   is   unnecessary,   the   Lord  Chancellor 
may,  ^vith  the  concurrence  of  the  Treasury,  make  arrange- 
ments for  the  release  of  such  officer  from  his  duties,  and 
thereupon  it  shall  be  in  the  power  of  the  Treasury  to 
award  to  such  officer  such  compensation  as,  having  regard 
to  his  period  of  seiwice,  to  the  tenure  of  the  office  held  by 
him,  the  Treasury  shall  consider  just  and  reasonable  : 

Provided  always,  where  such  officer  shall  have  served  Scale  of. 
for  any  period  not  exceeding  fifteen  years,  the  annual 
amount  so  to  be  awarded  shall  not  be  more  than  one  half 
of  the  salary  and  emoluments  of  the  office  held  by  him, 
and  for  each  year  of  completed  service  exceeding  fifteen 
years  there  shall  be  awarded  in  addition  one  thirtieth 
part  of  the  salary  and  emoluments  of  the  office,  but  in  no 
case  shall  the  sum  awarded  exceed  three  fourth  parts  of 
the  salary  and  emoluments  of  such  office  : 

Provided  also,  that  in  addition  to  any  compensation  to  Compenpa- 
be   awarded  under  the    foregoing   provisions    the    Lord  ^f*r/°it  of^ 
Chancellor,  with  the  concurrence  of  the  Treasury,  may  succession, 
award    to    any  officer    having   by  statute  any  right    of 
succession  to  a  position  of  higher  rank  and  emolument 
such  further  compensation  in  respect  of  such  right  as, 
having  regard  to  the  cu'cumstances  of  the  case  and  to  the 
amount  awarded  vmder  the  foregoing  provisions,  shall 
appear  j  ust  and  reasonable  :     • 

Provided  also,  that   no  such  officer  appointed  before  Consent  of 


4S0         SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877- 


Section  72. 

existing 
officer. 

§  10. 
Compensa- 
tion 

exceeding 
limits  of 
Super- 
annuation 
Act. 


§17. 
Claims  for 
compensa- 
tion for  loss 
of  emolu- 
ments and 
rights  of 
succession. 


Section  73. 

§  1- 
Future  re- 
organiza- 
tion of 
otficial 
stuff. 


Regard  to 

rights  of 
succession. 


the  passing  of  this  Act  shall  be  so  released  without  his 
consent. 

In  every  case  in  which  the  compensation  awarded  nnder 
siich  special  circumstances  affecting  the  tenure  or  position 
of  an  officer  as  are  above  refei'red  to  shall  exceed  the 
amount  which  might  be  awarded  under  the  provisions  of 
the  seventh  section  of  the  Superannuation  Act,  1859,  (a) 
without  a  special  minute  being  laid  before  Parliament,  the 
compensation  shall  be  awarded  by  special  minute  of  the 
Treasury,  stating  the  reasons  for  it,  and  a  copy  of  the 
minute  shall  be  laid  before  Pai'liament  within  fourteen 
days  of  the  date  of  the  minute,  if  Parliament  be  then 
sitting,  or  if  not,  then  within  fourteen  days  of  its  next 
meeting. 

Any  existing  officer  attached  to  any  existing  Court  or 
Judge  whose  jurisdiction  is  abolished  or  transferred  by 
this  Act,  and  whose  emoluments  or  statutory  rights  of 
promotion  or  succession  are  affected  by  the  passing  of 
this  Act,  shall  be  entitled  to  j)refer  a  claim  to  the 
Treasury  ;  and  the  Treasury,  if  it  shall  consider  his  claim 
to  be  established,  shall  have  power  to  award  to  him  such 
sum,  either  by  way  of  compensation  or  as  an  addition  to 
his  salary,  as  it  thinks  just,  having  regard  to  the  tenure 
of  office  by  such  officer  and  to  the  other  circumstances  of 
the  case. 

73.  Subject  to  the  provisions  in  this  Act  contained  as 
to  existing  officers  of  the  courts  whose  jurisdiction  is 
hereby  transferred  to  the  Supreme  Court,  the  Lord 
Chancellor,  the  Chief  Justice,  the  Chief  Justice  of  the 
Common  Pleas,  and  the  Chief  Baron,  or  any  two  of  them, 
of  whom  the  Lord  Chancellor  shall  be  one,  with  the  con- 
currence of  the  Treasury,  shall,  within  two  years  from 
the  commencement  of  the  Act,  determine  what  officers, 
clerks,  or  other  persons  holding  subordinate  pt)sitions, 
requisite  for  the  permanent  organization  of  the  official 
staff  of  the  Supreme  Court,  and  every  Court  and  Division 
thereof,  shall  be  retained  or  employed ;  and  may,  with 
tlie  like  concurrence,  abolish  any  unnecessary  office,  or 
reduce,  or  in  case  of  additional  duties  increase,  the  salary 
of  an  office,  or  alter  the  designation  or  duties  thereof, 
notwithstanding  tliat  the  patronage  thereof  may  be  vested 
in  an  existing  Judge. 

Provided  always,  that  if  and  when  under  the  provisions 
of  this  Act  any  office  shall  be  abolished  to  which  any 
junior  officer  shall  have  by  statute  a  direct  or  qualified 


(«)  22  Vic,  c.  2G. 


40  &  41  Vict.,  c.  57.  481 

right  of  succession,  sucli  compensation  shall  be  given  to  Section  73. 
such  last-mentioned  officer  in  respect  of  the  loss  of  such 
right  of  succession  as  to  the  Lord  Chancellor,  with  the 
concurrence  of  the  Treasury,  shall  seem  just. 

When  a  vacancy  occurs  in  any  office  after  the  passing        §  2. 
of  this  Act,  an  appointment  shall  not  he  made  thereto  Temporary 
for  the  ]:)eriod  of  one  month   without  the  assent  of  the  of*appoin't- 
Lord    Chancellor    given    with    the  concurrence  of    the  ni''"t  to 
Treasury  ;  and  further  the  Lord  Chancellor  may,  with  the  aft'l^"''"^' 
concurrence  of  the  Treasury,  suspend  the  making  any  passing  of 
a])pointment  to  such  office  for  any  period  not  later  than  ^^^' 
the  first  day  of  December,  one  thousand  eight  hundred 
and  seventy-nine,  and  may,  if  it  be  necessary,  make  pro- 
vision in  such  manner  as  he  thinks  fit  for  the  temporary 
discharge  in  the  meantime  of  the  duties  of  such  office. 

Subject  to  the  pro  ■vis  ions  of  this  Act  preserving  their        ,  „ 
pati'onage  to  existing  Judges,  all  offices  which  may  not  Future 
be  abolished   in   manner   afoi-esaid   shall   continue,  and  ^V^^"*^"^^ 
shall  when  vacant  be  filled  iip  in  manner  following : — 

All  junior  clerkships  in  the  High  Court  of  Jiistice  §  4. 
shall  be  filled  up  by  open  competition,  but  this  pro^dsion  j  "wf  ■ 
shall  not  apply  to  any  person  holding  any  office  or  clerk-  by  opiu 
ship  at  the  time  of  the  passing  of  this  Act.  competi- 

The  Lord  Chancellor  shall,  with  the  concurrence  of  the  ', , 
Civil  Service  Commissioners,  make  regulations  as  to  the  Reguia- 
qualification  of  candidates,  and  the  subiects  of  examina-  t'on-'^for 

,".  '  ''  qualifica- 

tion, tioiis  of 

All  officers  attached  to  the  High  Court,  or  the  Chan-  candidates, 
eery    Division   thereof,  who   have  been  heretofore    ap-  f~,^^  ^  ^■ 
pointed  by  the  Master  of  the  Eolls  or  Vice- Chancellor,  officers, 
save  those  appointed  by  competition  as  afoi-esaid,  shall 
continue,   while    so    attached,   to  be    appointed    by   the 
Master  of  the  Rolls  and  Yice-Chancellor  and  their  suc- 
cessors respectively  in  the  same  manner  and  on  the  same 
conditions  and  occasions  as  heretofore. 

All  officers  of  the  Chancery  Di^"ision  attached  to  the        §  7. 
Land  Jiidges,   heretofore  appointed  by  such  Judges,  or  ^^"^ 
who  under  the  provisions  of  this  Act  shall  be  attached  to 
the  Land  Judges,  save  those  appointed  by  competition  as 
aforesaid,  shall  be  appointed  by  them  with  such  approval 
as  heretofore. 

All  other  officei-s  attached  to  the  Divisions  of  tlie  High     .    §.^- 
Court  shall,  save  those  appointed  by  competition  as  afore-  officers "" 
said,  be  appointed  for  each  such  Division  by  the  Presi- 
dent thereof. 

All  officers  attached  to  any  Judge  shall  be  appointed  §  ^■ 
by  the  Judge  to  whom  they  are  attached.  ^ffi«4T^ 

Y 


4S2        SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1S77. 


Hecfion  73 

§  10. 
General 
officers 
and  Com- 
misi^ioneis 
by  Lord 
Cliaucellor. 


§11. 
Approval 
of  Lord 
Lieutenant 


§12. 
Officers' 
I)ower  to 
appoint 
rejaealed. 


§  13. 
Qualili- 
Ciitious 
preserved. 

§  14. 
Removal  of 
olHcertj. 


§14. 
Autliociiy 
(jver 
officers. 


Stibject  to  these  provisions,  all  officers  assigned  to 
perform  duties  with  I'espect  to  the  Supi-eme  Court  of 
Judicature  generally,  or  attached  to  the  High  Court  of 
Justice  generally,  or  the  Court  of  Appeal,  and  all  Com- 
missioners to  take  oaths  or  affidavits  in  the  Supreme 
Court,  and  all  officers  for  whose  appointment  other  pro- 
vision is  not  expressly  made  in  this  section,  shall  be 
appointed  by  the  Lord  Chancellor. 

Provided,  however,  that  all  officers  attached  to  the 
Supreme  Court  of  Judicature,  or  to  the  High  Court,  or 
to  any  Division  or  Judge  thereof,  who  have  been  hereto- 
fore appointed  by  the  Lord  Lieutenant,,  shall  not  be 
appointed  without  tlie  approval  of  the  Lord  Lieutenant. 
Any  statutable  power  existing  at  the  passing  of  this 
Act  to  enable  any  officer  or  officers  of  any  Court  to 
appoint  to  any  office,  or  to  employ  any  persons  in  duties 
appertaining  to  any  office,  is  hereby  repealed,  and  the 
light  of  appointing' to  such  offices,  if  they  shall  l^e  con- 
tinued, shall  vest,  in  the  case  of  offices  attached  to 
Divisions,  in  the  Presidents  of  the  Divisions,  and  in  all 
other  cases  in  the  Lord  Chancellor,  but  no  vacancy  in 
any  of  such  offices  shall  be  filled  without  the  concurrence 
of  the  Treasury.  Nothing  herein  contained  shall  affect 
or  be  taken  as  affecting  the  right  of  appointment  at  present 
vested  in  the  district  registrars  of  the  Couri;  of  Probate, 
imder  the  Act  twentieth  and  twenty-first  Victoria, 
chapter  seventy-nine,  section  one  hundred  and  fourteen. 

Any  qualification  required  for  appointment  to  any  office 
by  any  statute  in  force  at  the  commencement  of  this  Act 
shall  continue. 

Any  officer  of  the  Supreme  Court  of  Judicature,  or  of 
the  Court  of  Appeal,  or  of  the  High  Court,  or  of  ?ny 
Division  or  Judge  thereof  (other  than  such  officers  attached 
to  the  person  of  a  Judge  as  are  removable  by  him  at  his 
pleasure)  may  be  removed  by  the  person  having  the  right 
of  appointment  to  the  office  held  by  him,  with  the  ap- 
jiroval  of  the  Lord  Chancellor,  for  reasons  to  be  assigned 
in  the  order  of  removal. 

The  authority  of  the  Supreme  Court  of  Judicature,  and 
of  the  Court  of  A])peal  and  of  the  High  Court  of  Justice, 
over  all  or  any  of  the  officers  attached  to  the  said  Courts, 
or  any  of  them  generally,  with  respect  to  any  duties  to  be 
discharged  by  such  officers  res})ectively,  may  be  exercised 
by  the  Lord  Chancellor,  and  over  the  officers  attached  to 
any  Division  of  the  High  fJourt  by  the  President  of  siich 
Division,  with  respect  to  any  duties  to  be  discharged  by 
them  respectively. 


40  &  41  Vict.,  c.  57.  483 

74.  Every  person  who  is  or  shall  be  aiitliorized  t'o  ad-  Section  74. 
uiinister  oaths  iii  any  of  the  Courts  whose  jurisdiction  is  P(y^K^rs 
hereby  transferred  to  the  High  Court  of  Justice  shall  be  of  com- 
a  commissioner  to  administer  oaths  in  all  causes  and  ™'acimiuis- 
matters  whatsoever  which  may  fi'om  time  to  time  be  ter  oaths, 
depending  in  the  said  High  Court  or  in  the  Court  of  Ap-  ^'^''.^^'"^^ 
peal;(«)  and  every  such  commissioner,  if  a  solicitor,  is  here- 
by authorized  to  exercise  his  functions  as  such  commissioner 
in  any  part  of  Ireland  without  regard  to  any  limit  of 
place  specified  in  his  commission.  And  all  answers,  dis- 
claimers, exammations,  and  affidavits  in  causes  or  matters 
depending  in.  any  of  the  Courts  whose  jurisdiction  is 
hereby  transferred  to  the  High  Court  of  Justice  or  Court 
of  Appeal,  or  in  the  said  High  Court  of  Justice  or  Court 
of  A])peal,  and  also  acknowledgments  required  for  the 
purpose  of  enrolling  any  deed  in  any  of  the  said  Courts, 
or  affidavits  to  memorials  for  the  purpose  of  registering 
deeds  in  Ireland,  shall  and  may  be  sworn  and  taken  in 
England  or  Scotland,  or  the  Isle  of  Man,  or  the  Channel 
Islands,  or  in  any  colony,  island,  plantation,  or  place 
under  the  dominion  of  Her  Majesty  in  foreign  pai-ts,  be- 
fore any  judge,  court,  notary  public,  or  person  lawfully 
authorized  to  administer  oaths  in  such  country,  colony, 
island,  plantation,  or  place  respectively,  or  before  any  of 
Her  Majesty's  consuls  or  vice-consuls  in  any  foreign  parts 
out  of  Her  Majesty's  dominions ;  and  the  Judges  and 
other  officers  of  the  several  Divisions  of  the  said  High 
Court  or  Court  of  Appeal,  and  also  the  Ilegistrar  and 
other  officers  of  the  Office  for  the  Registry  of  Deeds  in 
Ireland  shall  take  judicial  notice  of  the  seal  or  signature, 
as  the  case  may  be,  of  any  such  court,  judge,  notary 
public,  person,  consul,  or  vice-consul  attached,  appended, 
or  subscribed  to  any  such  answers,  disclaimers,  examina- 
tions, and  affidavits,  acknowledgments,  memorials,  or  other 
documents  to  be  used  in  the  said  High  Court,  or  in  any  of 
the  Divisions  thereof,  or  in  the  Court  of  Appeal,  or  in  the 
Office  for  the  Registry  of  Deeds  in  Ireland.  {«) 

75.  After  the  passuig  of  this  Act  no  successor  to  the  s^ct!oni5. 
existing  Receiver  Master  shall  be  appointed  ;  and  it  shall         g  ^ 
be  lawful  for  the   Lord  Lieutenant,  with  the  consent  of  Keceiver 
the   Lord   Chancellor,  to  release  the   existing  Receiver  ^^^^^^ 
Master  from  the  further  discharge  of  his   duties  in  the  released, 
same  manner,   and  upon  the  same  terms,  as  the  Lord 
Chancellor  was  empowered  to  release  the  other  Masters 
by  the  Chancery  (Ireland)  Act,   1867  ;  (6)  and  upon  the 
dsath,  resignation,  or  release  of  such  existing  Receiver 

(a)  Xot  in  English  Act.  (6)  30  &  ol  Vict.  c.  4A. 

y2 


481    SUPREME  COUKT  OF  JUDICATURE  ACT  (IRELAND),  1877. 


Judges. 


Sccfmn  75.  blaster,  the  jiowers  and  duties  in  Lunacy  matters  vested 
in  and  performed  by  the  Receiver  Master,  other  than 
those  connected  with  the  management  of  hind,  shall  he 
exercised  and  performed  by  the  Lord  Chancellor  and  the 
officers  attached  to  him  according  to  the  course  of  pro- 
cedure in  the  Chancellor's  court  and  offices. 
§  2.  And  the  powers  and  duties  vested  in  and  performed  by 

Powers  and  such  Receiver  Master  in  reference  to  the  management  of 
to  receivers  landed  estates,  and  the  supervision  and  control  of  receivers 
and  lands  over  the  Same,  shall  be  exercised  by  the  Land  Judges,  and 
to^Land '^  all  matters  and  business  which  shall  be  then  pending  in 
the  office  of  such  Receiver  Master  in  reference  to  receivers 
appointed  over  any  estate  by  or  in  pursuance  of  any  order 
of  the  Court  of  Chancery,  or  any  of  the  Judges  or  Masters 
thereof,  or  of  the  Lord  Chancellor  entrvisted  by  the  Queen's 
Sign  Manual  with  jurisdiction  in  Lunacy,  and  the  ac- 
counting of  such  receivers,  and  the  letting  and  manage- 
ment of  the  estates  over  which  any  such  receiver  shall 
have  been  appointed,  shall  be  thereupon  transferred  to 
the  said  Laud  Judges,  and  shall  thenceforth,  subject  to 
any  Rules  of  Court  to  be  made  by  the  Lord  Chancellor, 
with  the  concurrence  of  the  Land  Judges  or  either  of 
them,  be  prosecuted  and  conducted  before  such  Judges  or 
one  of  them  in  the  same  maimer  as  the  same  would  have 
been  prosecuted  or  conducted  before  the  Receiver  Master 
if  this  Act  had  not  been  passed. 

And  all  matters  and  business,  other  than  as  aforesaid 
and  other  than  the  audit  of  public  accounts,  wliich  shall 
be  then  pending  in  the  office  of  such  Receiver  Master 
shall,  sulyect  to  Rules  of  Court  and  to  the  power  of 
transfer,  be  distributed  among  the  Judges  of  the  Chancery 
Division  of  the  said  High  Court  as  the  Lord  Cliancellor, 
with  the  concurrence  of  any  two  of  the  Judges  of  the  said 
Division,  shall  dii-ect. 

Any  references  to  appoint  receivers  over  land  wliich 
may  be  made  by  any  Judge  of  the  High  Court  of  Justice, 
including  the  Lord  Chancellor  entrusted  in  Lunacy  as 
aforesaid,  after  the  death,  resignation,  or  release  of  said 
Receiver  Master,  shall  be  made  to  the  said  Land  Jiulges, 
or  one  of  them,  and  the  accounting  of  the  receivers 
appointed  either  under  such  references  or  by  the  Land 
Judges  themselves,  or  l)y  any  other  Judge,  and  tlie  control 
of  such  receivers,  and  tlie  management  of  the  estates  over 
Avhich  they  shall  be  aj^pointed,  sliall  be  exercised  by  the 
Land  Judges,  (a) 


§  3. 
Other 
matters 
among 
riianci  1 
Judges. 


§4. 
Future 
reference 
to  apjioint 
receivers 
to  J.and 
Judges. 


(n)  See  §  13,  cdmmitting  this  duty  to  the  Junior  of  the  Land  Judges. 


40  &  41  YiCT,  c.  57.  485 

Provided  always,  tliat  nothing  herein  contained  shall  Section  70. 

prevent  any  Judge,  or  the  Lord  Chancellor  entrusted  in        ^  5. 

Lunacy  as  aforesaid,  from  himself  a]:)pointLiig  a  receiver  Lunacy, 

11  1,,        ,1,1         11-  appoiuting 

over  land,  or  over  personal  estate  other  than  land,  m  any  receivers 

case  in  which  he  shall  think  it  expedient  to  do  so ;  and  in. 

in   any  such  case    the   Judge  may,  if  he  shall  think  it 

expedient,  and  in  all  cases  in  which  he  shall  appoint  a 

receiver  over  personal  estate  other  than  land  he  shall,  by 

order  direct  that  all  subsequent  pi-oceedings  with  regard 

to   such  receiver  shall  be  taken  in  his  own  Court,  and 

thereupon  all  such  proceedings  shall  be  taken  before  such 

Judge  or  his  officers. 

Appeals  from  any  orders  made  by  the  said  Land  Jiidges        §  '^• 
with  i-egard  to  any  matters  connected  with  receivers  oi'  from  orders 
the  management  of  land  shall  lie  to  the  Court  of  Appeal  in  receiver 
and  not  to  the  Coiu't  or  Judge  by  whom  reference  to 
them  to  appoint  or  take  the  accounts  of  a  receiver  shall 
have  been  made,  and  no  order  so  made  shall  require  to 
be  confirmed  by  such  last-mentioned  Court  or  Judge. 

Subject  to  any  Rules  of  Court,  and  unless  the  Coiirt  or        §  7. 
Judge  by  whom  any  such  reference  shall  be  made  shall  hlu"i?ot'" 
otherwise  order,  all  sums  of  money  received  by  any  receiver  receivers 
shall,   after  payment  of  or  providing  for  the  necessary  j^  |^^^  ^  ^^ 
outgoings  of  and  allowances  in  respect  of  the  estate  over  court, 
which  he  shall  be  so  aj^pointed,  be  lodged  to  the  credit  of 
the  cause  or  matter  in  which  the  reference  to  the  Land 
Judges  shall  have  been  made,  or  shall  be  paid  by  sui>-l 
Receiver  according  to  the  orders  of  the  Judge  to  whom 
such  cause  or  matter  is  attached. 

The  iurisdiction  to  audit  certain  public  accounts  (includ-  ,    ,.§^^- 

(.    1       /-.  •      •  r>/~ii        •      1  1     T-x  X-  Audit  of 

mg  accounts  01  the  Commissioners  01  Charitable  Donations  public 
and   Bequests  in   Ireland),  and   every  other  jurisdiction  accounts 
(if  any)  not  in  reference  to  causes,  matters,  or  proceedings  ooveru- 
in  Chancery,  now  vested  in  the  Receiver  Master,  shall  ment 
(unless  the  Lord  Lieutenant  in  Council  shall  otherwise    °^^  ' 
direct),   after  the   death,   resignation,  or  release   of  the 
existing  Receiver  Master,  vest  in  and  be  exercised  by  the 
Local  Government  Board  for  Ireland.     It  shall  be  lawful 
for  the  Lord  Lieutenant  in  Council  at  any  time  and  from 
time  to  time  after  the  passing  of  this  Act  to  make  such 
rules  and  regulations  as  to  the  Lord  Lieutenant  in  Council 
shall  seem  fit  for  providing  for  the  complete,  proper,  and 
efficient  exercise  by  the  Local  Government  Board,  or  by 
such  other  authority  or  authorities,  or  person  or  persons 
as  by  the  Lord  Lieutenant  in  Council  may  be  appointed 
in  that  behalf,  of  the  jurisdiction  or  jurisdictions  afore- 
said. 


4S6        SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 


Section  'i>. 

§9. 
Officers  Of 
Keceiver 
Master 
transferred 
to  Land 
Judges. 


§10. 
'J'r.aiisler 
1  o  Local 
(iovern- 
lucnt 
Board. 


§11. 
iSubjcct 
to  same 
powers  as 
other 
olRcers. 

§  13. 
(Jcncral 
Orders 
relating  to. 

§iy. 

Duties  to 
be  dis- 
cliarged  by 
junior 
Judge. 


The  officers  connected  witli  tlie  office  of  the  Eeceiver 
Master  shall  {subject  to  the  pi'o visions  herein-after  con- 
tained) be  transferred  and  attached  to  the  Land  Judges, 
and  the  said  officers  shall  be  employed  in  duties  similar 
or  analogous  to  those  which  they  at  present  discharge, 
and  they  shall  hold  their  offices  by  the  same  tenure  and 
upon  the  same  terms  and  conditions,  and  receive  the 
•same  salaries,  and,  if  entitled  to  pensions,  be  entitled  to 
the  same  pensions,  and  such  salaries  and  pensions  shall 
be  chargeable  upon  and  payable  out  of  the  same  funds, 
as  if  this  Act  had  not  been  passed. 

Kotwithstanduig  anything  herein-before  provided,  it 
shall  be  lawful  for  the  Lord  Lieutenant  in  Council  to 
transfer  and  attach  to  the  Local  Government  Board,  or 
to  any  other  authority  or  person  appointed  to  exercise 
any  jurisdiction  now  vested  in  the  Keceiver  Master,  any 
of  the  said  officers  heretofore  engaged  in  the  performance 
of  duties  connected  with  any  jurisdiction  which  shall, 
under  or  in  pursuance  of  this  Act,  be  vested  in  such 
Board,  authority,  or  person,  and  to  require  any  of  the 
said  officers  to  perform  such  duties  connected  with  the 
said  jurisdiction,  and  similar  or  analogous  to  those  which 
they  at  present  perform,  in  such  manner,  and  subject  to 
such  authoi'ity  and  control,  as  the  Lord  Lieutenant  in 
Council  may  prescribe,  and  also  to  require  any  of  the 
officers  hereby  transferred  and  attached  to  the  Land 
Judges  to  give  assistance,  by  the  discharge  of  any  duties 
similar  or  analogous  to  those  which  they  at  present 
discharge,  to  the  Local  Government  Board,  or  any  other 
authority  or  person  exercising  any  jurisdiction  which  shall 
under  or  in  pui'suance  of  this  Act  be  vested  in  such  Board, 
authority,  or  person,  at  such  times,  in  such  manner,  and 
subject  to  such  control  and  conditions  as  the  Lord 
Lieutenant  in  Council  may  pi-escribe. 

Provided  also,  that  all  the  powers  relating  to  existing 
officers  of  the  Courts,  and  to  the  reorganization  and  new 
arrangement  of  offices  herein  contained,  shall  also  apply 
to  the  officers  of  the  Receiver  Master. 

General  orders  shall  be  made  by  the  Lord  Chancellor 
with  the  concurrence  of  the  Land  Judges,  or  either  of 
them,  to  regulate  the  practice  and  procedure  connected 
with  the  matters  the  subject  of  this  section. 

The  duties  imposed  upon  the  Land  Judges  by  this  sec- 
tion (so  long  as  there  shall  be  two  such  Judges)  shall  be 
discharged  by  the  junior  Judge  for  the  time  being ;  and 
in  distributing  the  other  business  of  the  Land  Judges  be- 
tween them,  regard  shall  be  had  to  this  provision. 


40  &  41  YiCT,  c.  57.  487 

The  Lord  Lieutenant,  with   the  consent  of  the  Lorcl  Sedwnjo. 
Chancellor,  may,  if  he  shall  think  fit,  before  the  com-       g  14. 
mencement  of  this  Act,  exercise  the  powers  by  this  section  immediate 
conferred  with  i-espect  to  the   release  of  the  Receiver  o/Receiver 
Master  from  the  further  discharge  of  his  diities,  and  in  ."Master. 
such  case,  or  in  case  of  vacancy  in  the  office  before  the 
commencement  of  this  Act,  the  several  provisions  in  this 
section  contained  shall  take  effect,  and  such  of  the  same 
as  relate  to  the  Land  Judges  shall  be  applicable  and  shall 
apply  to  the  Judges  of  the  Landed  Estates  Court,  and 
such  as  relate  to  the  Judges  of  the  Chancery  Division 
shall  be  applicable  and  shall  apply  to  the  Judges  of  the 
Court  of  Chancery. 

76.  There  shall  be  paid  to  every  salaried  ofiicer  ap-  Scctionjc. 
pointed  in  pursuance  of  this   Act   such    salary   out   of  salaries 
moneys  provided  by  Parliament  as  may  be  determined  by  a^d  pen- 
the  Treasury  with  the  concurrence  of  the  Loi'd  Chancellor,  officers. 

An  officer  attached  to  the  person  of  a  Judge  shall  not  J.  A.,  1S73, 
be  entitled  to  any  pension  or  compensation  in  respect  of  *" 
his  retirement  from  or  the  abolition  of  his  office  except  so 
far  as  he  may  be  entitled  thereto  independently  of  this 
Act ;  but  every  other  ofiicer  to  be  hereafter  appointed  in 
pursuance  of  this  part  of  this  Ant,  and  whose  whole  time 
shall  be  devoted  to  the  duties  of  his  office,  shall  be  deemed 
to  be  employed  in  the  permanent  Civil  Service  of  Her 
Majesty,  and  shall  be  entitled  as  such  to  a  pension  or 
compensation  in  the  same  manner,  and  upon  the  same 
tei'ms  and  conditions,  as  the  other  permanent  civil  servants 
of  Her  Majesty  are  entitled  to  pension  or  compensation. 

77.  Clerks  of  Assize  and  Nisi  Prius  on  circuit  and  at  Sectionn. 
winter  assizes  maybe  a]>pointed  and  paid  in  the  same  cierks  of 
manner  as  heretofore.     Clerks  of  Nisi  Prius  in  Dublin  Assize  and 
may  be  appointed  by  the  existing  Chief  Judges  of  the 
Queen's  Bench,  Common  Pleas,  and  Exchequer  Divisions, 

and  shall  be  paid  as  heretofore  ;  but  such  right  of  ap- 
pointment shall  not  be  continued  to  their  successors,  and 
other  provisions  shall  be  made  for  the  discharge  of  the 
duties  now  discharged  by  such  clerks  under  the  provisions 
of  this  Act  relating  to  future  offices  of  the  High  Court. 

78.  From  and  after  the  commencement  of  this  Act,  all  Section  ts. 
persons  admitted  as  solicitors,  attorneys,  or  proctors  of  or       ^^ 
by  law  empowered  to  practise  in  any  Court,  the  jurisdic-  Solicitors 
tion  of  which  is  hereby  transferred  to  the  High  Court  of  ^p"!/"^^'^^. 
Justice  or  the  Court  of  Appeal,  shall  be  called  Solicitors  ferred. 

•  of  the  (a)  Court  of  Judicature,  and  shall  be  entitled  to  the  J-  ^^  i^'^. 

\   -'  s.  S7. 

(a)  In  English  Act  "  Supreme  Court." 


4SS         SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1S77. 


Sec  fi  0)1  78. 


Appren- 
tices ad- 
mitted by 
Lord 
Chancellor. 


§3. 
Juris- 
diction 
over. 


same  privileges  and  be  subject  to  the  same  obligations,  so 
far  as  circumstances  will  permit,  as  if  tliis  Act  had  not 
passed. 

And  all  persons  who  from  time  to  time,  if  this  Act  had 
not  passed,  would  have  been  entitled  to  be  admitted  as 
solicitors,  attorneys,  or  pi-octors  of  or  been  by  law  em- 
powered to  practise  in  any  such  Courts,  shall  be  entitled 
to  be  admitted  and  to  be  called  Solicitors  of  the  (a)  Court 
of  Judicatiire  and  shall  be  admitted  by  the  Lord  Chan- 
cellor (&)  and  shall,  so  far  as  circumstances  will  permit,  be 
entitled  as  such  solicitors  to  the  same  privileges  and  be 
subject  to  the  same  obligations  as  if  this  Act  had  not 
passed. 

Any  solicitors,  attorneys,  or  proctors  to  whom  this 
section  applies  shall  be  deemed  to  be  officers  of  the(«) 
Court  of  Judicature  ;  and  that  Court,  and  the  High  Court 
of  Justice,  and  the  Court  of  Appeal  respectively,  or  any 
Division  or  Judge  thereof,  may  exercise  the  same  juris- 
diction in  respect  of  such  solicitors  or  attorneys  as  any 
one  of  Her  Majesty's  superior  courts  of  law  or  equity 
might  previously  to  the  passing  of  this  Act  have  exer- 
cised in  i^espect  of  any  solicitor  or  attorney  admitted  to 
pi"actise  therein. 


Section  79. 


Rules  of 
law  to 
apply  to 
inferior 
courts. 
J.  A.,  1 
S.  91. 


873, 


PART  VL 

Jurisdiction  of  Inferior  Courts.{c) 

79.  The  several  rules  of  law  enacted  and  declared  by 
this  Act  shall  be  in  force  and  receive  effect  in  all  Courts 
whatsoever  in  Ireland,  so  far  as  the  matters  to  which 
such  Rules  relate  shall  be  resj^ectively  cognizable  by  such 
Courts.  [And  Rules  of  Court  as  to  ple^iding,  practice, 
and  procedure,  empowered  to  be  made  by  Oixler  in 
Council  as  herein-before  provided,  shall  be  a])[)licable  to 
Recoi'ders'  Local  Courts  of  Record  (t?)  in  Ireland,  or  to 
such  one  or  more  of  them,  and  to  such  extent  and  in  such 
manner  only  as  the  said  Order  may  direct. ](«) 


(«)  In  English  Act  "  Supreme  Court." 

Ill)  In  English  Act  "  By  the  ^Master  of  the  Rolls." 

(c)  This  title  setnns  to  be  somewhat  inajipropriate. 

((/)  Sic  in  Act. 

{e)  Not  in  English  Act. 


40  -t  41  YiCT.,  c.  57.  480 

PART  VII. 

Miscellcmeous  Prov  is  ions. 

80.  All  books,  documents,  papers,  and  chattels  in  the  Sectum  s^o. 
possession  of  any  Court,  the  jiu-isdiction  of  which  is  here!  iv  jransfer  ot 
transferred  to  the  High  Court  of  Justice  or  to  the  Court  books  and 
of  Appeal,  or  of  any  officer  or  person  attached  to  any  such  papers  to 
Coiu't,  as  such  officer,  or  by  reason  of  his  being  so  attached^  Judieatui-". 
shall  be  transferred  to  the  Supreme  Court  of  Judicature,  J-  a.,  ists, 
and  shall  be  dealt  with  by  such  officer  or  person  in  such  ""    *" 
manner  as  the  High  Court  of  Justice  or  the  Coiu't  of 
Appeal  may  by  order  dii-ect ;  and  any  person  failing  to 
comply  with  any  order  made  for  the  purpose  of  giving 

effect  to  this  section  shall  be  guilty  of  a  contempt  of  the 
Coiu"t  making  such  order. 

81.  This  Act,  except  as  herein  is  expi-essly  directed,   Sectioni^i. 
shall  not,  unless  or  until  other  commissions  are  issued  in  g^^.~7"^. 
pursuance  thereof,  affect  the  cii'cuits  of  the  Judges  or  the  to  circuits, 
issue  of  any  Commissions  of  Assize,  Nisi  Prius,  Oyer  and  '^<=-  _ 
Terminer,  Gaol  Delivery,  or  other  commissions  for  the  s.'ga! 
discharge  of  civil  or  criminal  business  on  circuit  or  other- 
wise, or  any  patronage  vested  in  any  Judges  going  circuit, 

or  the  position,  salaries,  or  duties  of  any  officers  transferred 
to  the  {«)Coiu-t  of  Judicature  who  are  now  officers  of  the 
(«)Courts  of  Common  Law  in  Ireland,  and  who  perform 
duties  in  relation  to  either  the  civil  or  criminal  business 
transacted  on  circu.it. 

82.  This   Act,    except  so  far  as  herein  is  expressly  section  h-2. 
dii-ected,  shall  not  affect  the  office(5)  of  the  Lord  Chan-       :     ; 
cellor,  [nor  the  rank,  salary,  or  pension  attached  to  such  to  Lord  ' 
office] (c)  and  the  officers  [in  the  Limacy  Department,  and  Chancellor, 
the  officers  personally  attached  to  or  connected  witli](c)  g'^^''     '  ' 
the  Lord  Chancellor,  shall  continue  attached  to  him  in 

the  same  manner  as  if  this  Act  had  not  passed ;  and  all 
duties  which  any  officer  of  the  Court  of  Chancery  may 
now  be  required  to  perform  in  aid  of  any  duty  whatsoever 
of  the  Lord  Chancellor  may  in  like  manner  be  required 
to  be  performed  by  such  officer  w^hen  transferred  to  the 
Coui-t  of  Judicatiu-e,  and  by  his  successors.  [It  shall  be 
in  the  power  of  the  Lord  Chancellor,  with  the  conciu-rence 
of  the  Treasury,  to  abolish  or  alter  the  duties  and  designa- 
tion of  any  offices  whether  in  the  Lunacy  Department  or 
attached  to  himself,  and  to  fix  the  salaries  of  such  as  shall 
be  retained,  but  so  that  no  existing  officer  holding  offi.e 

(a)  In  English  Act  "  Supreme." 
(6)  Englisli  Act  has  "  or  position." 
(c)  Xot  ia  English  Act. 

y3 


490         SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  ISTT" 

Section  82.  cluring  good  beliaviour  shall  receive  a  less  salary  tlian 
heretofore,  or  hold  office  otherwise  than  he  did  before.](a) 
Section  S3.        83.  When  the  Great  Seal  of  Ireland  is  in  commission, 
Provisions  '^^^^  Lords  Commissioners  shall  represent  the  Lord  Chan- 
as  to  Great  cellor  for  the  purposes  of  this  Act,  save  that  as  to  the 
Seal  being   presidency  of  tlie  Court  of  Appeal,  and  the  appointment 
misiion.       Or  approval  of  officers,  or  the  sanction  to  any  order  for  the 
J.  A.,  1873,  i^emoval  of  officers,  or  any  other  act  to  which  the  concur- 
rence or  presence  of  the  Lord  Chancellor  is  hereby  made 
necessary,  the  powers  given  to  the  Lord  Chancellor  by 
this  Act  maybe  exercised  by  the  Senior  Lord  Commissioner 
for  the  time  beintr. 


PAET  VIII. 

Court  Fees. 

Section  84.       84.  The  Lord  Chancellor,  with  the  advice  and  consent 
T,.  ■:         ,  of  the  other  Presidents  of  the  Divisions  of  the  High  Court, 

Fixing  and  i        •  i       i  i>     i 

collection     Or  any  one  of  them,  and  with  the  concurrence  oi  the 
H-^*h  r^"      Treasury,  may,  either  before  or  after  the  commencement 
and  Court    oi  this  Act,  by  order,  fix  the  fees  and  per-centages  to  be 
of  Appeal,    taken  in  the  High  Court  of  Justice  or  in  the  Com-t  of 
A])peal,   or  any  office  connected  therewith,   or  by  any 
officer  of  those  Courts,  or  the  Lord  Chancellor  or  other 
Judge  of  those   Courts,  which   officer  is  paid  wholly  or 
partly  out  of  public  moneys,  and  may  from  time  to  time 
by  order  increase,  reduce,  or  abolish  all  or  any  of  such 
fees  and  per-centages,   and  appoint  new  fees  and   per- 
centages to  be  taken  in  the  said  Courts  or  offices  or  any 
of  them,  or  by  any  such  officer  as  aforesaid. 

All  such  fees  and  per-centages  shall  (save  as  otherwise 
directed  by  the  order)  be  paid  into  the  receipt  of  Her 
Majesty's  Exchequer  and  be  carried  to  the  Consolidated 
Fund,  and  with  respect  thereto  the  following  rules  shall 
be  observed : 

(L)  The  fees  and  per-centages  shall  (except  so  far  as 
the  order  may  otherwise  direct)  be  taken  by  stamps,  and 
if  not  taken  by  stamps  shall  be  taken,  applied,  accounted 
for,  and  paid  over  in  such  manner  as  may  be  directed  by 
this  oi'der : 

(2.)  Svich  stamps  shall  be  impressed  or  adhesive,  as  the 
Treasury  may  from  time  to  time  direct : 

(3.)  Tlie  Ti-easury,  with  the  concurrence  of  the  Lord 
Chancellor,  may  from  time  to  time  make  such  rules  as 
may  seem  fit  for  publishing  the  amount  of  the  fees  and 
i-egulating  the  use  of  such  stamps,  and  for  })rescribing  the 

(rt)  Not  in  English  Act. 


40  t  41  YiCT.,  c.  57.  491 

application  thereof  to  documents  from  time  to  time  in  Sedion  84.  , 
use  or  required  to  be  used  for  the  pui'poses  of  such  stamps, 
and   for   ensuring   the   proper   cancellation  of  adhesive 
stamps,  and  for  keeping  accounts  of  such  stamps  : 

(4.)  Any  dociiment  ^yhich  ought  to  bear  a  stamp  in 
pursuance  of  this  Act,  or  any  order  made  thereuntler, 
shall  not  be  received,  filed,  used,  or  admitted  in  evidence 
imless  and  until  it  is  properly  stamped  within  the  time 
prescribed  by  the  rules  under  tliis  section  regulating  the 
use  of  stamps,  but  if  any  such  document  shall,  through 
mistake  or  inadvertence,  be  received,  filed,  or  used  ^^^.thout 
being  properly  stamped,  the  Lord  Chancellor  or  the  court 
may,  if  he  or  it  shall  think  fit,  order  that  the  same  be 
stamped  as  in  such  order  may  be  directed  ;  and  on  such 
document  being  stamped  accordingly,  the  same,  and  every 
proceeding  relating  thereto,  shall  be  as  valid  as  if  such 
document  had  been  properly  stamped  in  the  first  instance ; 
provided  that  no  document  shall  be  stamped  as  aforesaid 
contrary  to  the  pro\T.sions  of  any  other  Act  of  Parliament 
for  the  time  being  in  force,  nor  without  payni'^nt  of  any 
penalty  prescribed  in  force,  nor  without  payment  of  any 
penalty  prescribed  by  any  such  Act : 

(-5.)  The  Commissioners  of  Inland  Revenue  shall  keep 
such  separate  accomits  of  all  money  received  in  respect  of 
stamps  under  this  Act,  and  under  any  orders  made  in  pur- 
suance thereof,  as  the  Treasury  may  from  time  to  time 
direct,  and,  subject  to  the  deduction  of  any  expenses  in- 
curred by  those  Commissionei-s  in  the  execution  of  this 
section,  the  money  so  received  shall,  under  the  direction 
of  the  Treasury,  be  carried  to  and  form  part  of  the  Con- 
solidated Fund. 

(6.)  Any  pei'son  who  forges  or  counterfeits  any  such 
stamp,  or  uses  any  such  stamp  knowing  the  same  to  be 
forged  or  counterfeit,  or  to  have  been  previously  cancelled 
or  used,  shall  be  guilty  of  foi-gery,  and  be  liable  on  con- 
viction to  penal  servitude  for  a  term  not  exceeding  seven 
yearSj  or  to  imprisonment  with  or  without  hard  labour 
for  a  term  not  exceeding  two  years. 

An  order  under  this  section  may  abolish  any  existing 
fees  and  per-centages  which  may  be  taken  in  the  said 
courts  or  ofl&ces  or  any  of  them,  or  by  the  said  officers  or 
any  of  them,  but  subject  to  the  provisions  of  any  order 
made  in  pursuance  of  this  section,  the  existing  fees  and 
per-centages  shall  continue  to  be  taken  and  accomited  for 
in  the  existing  manner.  All  orders  made  in  pursuance 
of  this  section  shall  be  laid  before  each  Hovise  of  Parlia- 
ment within  si; ch  time  and  shall  be  subject  to  be  annulled 
in  such  manner  as  is  in  this  Act  provided. 


4D2    SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  187  7. 


Section  85. 

Amend- 
ment of 
the  Irish 
Bank- 
rupt and 
Insolvent 
Act,  1S57, 
with 

respect  to 
the  un- 
claimed 
dividend 
account. 


PART  IX. 

Unclaimed  Dividends  in  Bankmptcy. 

85.  From  and  after  the  passing  of  this  Act,  sections 
eighty-four  and  two  hundred  and  ninety-seven  of  the 
Irish  Bankrupt  and  Insolvent  Act,  1857(rt),  shall  be  and 
the  same  are  hereby  repealed,  and  the  following  provisions 
shall  thereupon  be  in  force  and  have  effect : 

As  soon  as  may  be  after  the  passing  of  this  Act,  the 
Governor  and  Company  of  the  Bank  of  Ireland  shall, 
upon  an  order  of  the  Lord  Chancellor  to  be  made  in  that 
behalf,  transfer  to  the  account  of  the  Commissioners  for 
the  Reduction  of  the  National  Debt  at  the  Bank  of  Eng- 
land all  Government  securities  standing  in  the  books  of 
the  Bank  of  Ireland  at  the  time  of  the  passing  of  this  Act 
to  the  credit  of  an  account  called  "  the  Unclaimed  Divi- 
dend Account"  under  the  Irish  Bankruptcy  and  Insol- 
vent Act,  1857. 

As  soon  as  the  said  Government  securities  have  been 
so  transferred,  the  Treasury  shall  by  warrant  direct  the 
Governor  and  Company  of  the  Bank  of  England  to  cancel 
such  securities  in  their  books. 

The  cash  standing  in  the  books  of  the  Bank  of  Ireland 
at  the  time  of  the  passing  of  this  Act  to  the  credit  of  an 
account  called  "  the  Unclaimed  Dividend  Account  "  under 
the  Irish  Bankrupt  and  Insolvent  Act,  1857,  or  so  much 
of  the  same  as  shall  be  determined  by  the  Treasury,  and 
all  dividends  and  all  moneys  the  produce  of  any  bank- 
rupt, arranging  debtors,  or  insolvent  estate,  which  shall 
from  time  to  time  after  the  passing  of  this  Act  be  paid 
into  or  transferred  to  the  credit  of  the  "  Unclaimed  Divi- 
dend Account "  tinder  the  provisions  of  section  two  hun- 
dred and  ninety-five  of  the  Irish  Bankrupt  and  Insolvent 
Act,  1857,  and  which  have  remained  unclaimed  for  a 
period  of  not  less  than  five  years  from  the  time  on  which 
the  same  liave  been  respectively  paid  into  or  transferred 
to  the  said  account,  shall  be  from  time  to  time  j^aid  to 
the  account  of  the  Commissioners  for  the  Reduction  of  the 
National  Debt  in  svxcli  manner  as  the  Treasury  may 
direct.  The  Commissioners  for  the  Reduction  of  the 
National  Debt  shall  apply  all  cash  transferred  to  their 
account  in  pursuance  of  this  section  in  reduction  of  the 
National  Debt  in  the  same  manner  as  the  moneys  issued 
to  them  under  the  Sinking  Fund  Act,  1875.(&) 

Where  any  Court  having  jurisdiction  in  the  matter  of 
Bankruptcy    is    satisfied    that    any    person    claiming    is 


(o)  20  &  21  Vict  0.  60. 


(6)  38  &  39  Vict.  c.  -15. 


40  k  41  Vict.,  c.  57.  493 

entitled  to  any  dividend  or  other  payment  out  of  the  Section  85. 
moneys  carried  to  the  account  of  the  said  Commissioners 
under  the  provisions  of  tliis  section,  such  Court  may  order 
l)ayment  of  the  same  in  like  manner  as  it  might  have 
done  if  the  same  had  not  been  carried  to  the  said  last- 
mentioned  account.  In  case  the  moneys  standing  to  the 
credit  of  the  said  Unclaimed  Dividend  Account  shall  at 
any  time  be  insufficient  to  meet  the  payments  to  be  made 
out  of  the  same,  the  Treasury  shall  issue  out  of  the  Con- 
solidated Fund,  or  out  of  the  growing  produce  thereof, 
such  sum  as  may  appear  to  them  to  be  necessary  to  pro- 
vide for  the  said  payments. 

All  salaries,  allowances,  damages,  costs,  and  expenses 
before  the  passing  of  this  Act  charged  on  and  jiayable 
out  of  the  said  Unclaimed  Dividend  Account,  or  the 
interest  and  profit  arising  therefrom,  shall,  from  and  after 
the  passing  of  this  Act,  be  paid  out  of  moneys  to  be 
provided  by  Parliament  for  such  pui-pose. 


PART  X. 

Final  Appeal. 

86.   All  decisions,  judgments,  decrees,  or  orders  of  the  Section sg. 
Court  of  Appeal  shall  be  subject  to  appeal  to  tlie  House  pin^T" 
of  Lords  in  the   cases  and  under  the  conditions  in  and  appeal  to 
under  which  the  like   decisions,    decrees,  judgments,  or  ^f  lotT*'' 
orders  of  the  Court  of  Appeal  in  Chancery  in  Ireland,  or 
of  the  Court  of  Exchequer  Chamber  in  Ireland,  would 
have  been  subject  to  appeal  to  the  House  of  Lords  or  to 
the  Queen  in  Council  (a)  if  this  Act  had  not  been  passed, 
or  as  may  be  dii-ected  by  any  Act  of  Parliament  affecting 
the  appellate  jurisdiction  of  the  House  of  Lords,  or  any 
powers  therein  contained. 

Except  as  herein-before  provided  with  respect  to  error 
in  certain  cases  on  the  Crown  side  of  the  Queen's  Bench 
Division,  error  or  appeal  from  any  judgment,  decree,  or 
order,  subsequent  to  the  commencement  of  this  Act,  of 
the  High  Court  of  Justice,  or  any  Division  or  Judge 
thereof,  or  of  the  Courts  of  Admiralty  or  Bankruptcy,  or 
any  Judge  of  the  same  respectively,  may  be  brought  only 
to  the  Court  of  Appeal  constituted  by  this  Act,  and  not 
dii^ectly  to  the  House  of  Lords  or  Queen  in  Council,  any 
previous  law  or  usage  to  the  contrary  notwithstanding. 

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 

(a)  Sic  in  the  Act. 


494         SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1S77. 

Sectio,,  s6.  House  of  Lords,  or  to  the  Queen  in  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. 


SCHEDULE  OF  RULES. 


Ord.  1,  R.  1 
(.a) 


Schedule  of  The  following  are  the  rules  referred  to  in  the  sixty-first 
section  of  this  Act : 

Form  of  Action  and  Summons. 
(Form  of  action  in  High  Court.) 

J.  A.,  1S75.  1.  All  actions  which  have  hitherto  been  commenced 
by  writ  of  summons  and  plaint  in  the  Superior  Courts  of 
Common  Law  in  Ireland,  and  all  suits  which  have  hitherto 
been  commenced  by  bill  or  information  in  the  High  Court 
of  Chancery,  shall  be  instituted  in  the  High  Court  of 
Justice  by  a  proceeding  to  be  called  an  action. 

Ord.  1,  R.  3.  All  other  proceedings  in  and  applications  to  the  High 
Court  may,  subject  to  Rules  of  Court,  be  taken  and  made 
in  the  same  manner  as  they  would  have  been  taken  and 
made  in  any  Covu't  in  which  any  proceeding  or  a2)plication 
of  the  like  kind  could  have  been  taken  or  made  if  this 
Act  had  not  passed. 

Writ  of  Summons. 
(Actions  to  be  commenced  by  wi'it.) 

Ord  2,  R.  1.  2.  Every  action  in  the  High  Court  shall  be  commenced 
by  a  wi'it  of  summons  which  shall  be  indorsed  ^^■ith  a 
statement  of  the  nature  of  the  claim  made,  or  of  the  relief 
or  remedy  required  in  the  action,  and  which  shall  specify 
the  Division  of  the  High  Court  to  which  it  is  intended 
that  the  action  should  be  assigned. 

Ord.  1',  R.  3.  3.  Every  wi'it  of  summons  and  the  indorsement  thereon 
may  be  in  one  of  the  forms  herein-after  referred  to,  and 
any  costs  incurred  by  tlie  use  of  any  more  prolix  or  other 
forms  of  writs  or  of  indorsements  thereon  than  the  forms 
herein-after  referred  to  shall  be  borne  by  the  party  using 
the  same  unless  the  court  shall  otherwise  pi-escribe. 

Ord.  2,  R.  8.  4.  Every  Avrit  of  summons  and  also  every  other  writ 
shall  bear  date  on  the  day  on  which  the  same  shall  be 
issued,  and  shall  be  tested  in  the  name  of  the  Lord 
Chancellor,  or,  if  the  office  of  Lord  Chancellor  shall  be 
vacant,  in  the  name  of  the  Lord  Cliief  Justice  of  Ireland. 

Ord.  3,  R.  1.  5.  Tlie  indorsement  of  claim  shall  be  made  on  CA'ery 
writ  of  summons  before  it  is  issued. 

(').   In  tlie  indorsement  it  .shall  not  be  essential  to  set 

(c(J  Corre.«poiidiug  Order  and  Rule  iu  Eiigluud. 


40  k  41  Vict.,  c  57.  495 

forth  the  precise  gi'ountl  of  complaint,   or  the    precise  ScheMe  of 

remedy  or  relief  to  which  the  plaintiff  considers  himself       ' 

entitled.  The  plaintiti"  may,  by  leave  of  the  Court  or  Ord.  3,  K. 
Judge,  amend  such  indoi'sement  so  as  to  extend  it  to  any 
other  cause  of  action  or  any  additional  remedy  or  relief. 
If  none  of  the  forms  hereinafter  referred  to  shall  be  ap- 
plicable to  the  case,  such  other  similarly  concise  form  may 
be  used  as  the  nature  of  the  case  may  require. 

7.  AVrits  of  summons  shall  be  prepared  by  the  plaintiff  Ord.  5,  n. 
or  his  solicitor  ux  such  manner  as  shall  be  directed  by  ^  ^"    ^" 
rules,  and  sliall  be  sealed  by  the  proper  officer,  and  shall 
thereupon  be  deemed  to  be  issued. 

8.  The  plaintiff'  or  his  solicitor  shall,  on  presenting  any  Ord.  5,  R.  7. 
wiit  of  summons  for  sealing,  leave  with  the  officer  a  copy 

of  such  writ,  and  all  the  indorsements  thereon,  and  such 
copy  shall  be  signed  by  or  for  the  solicitor  leaving  the 
same,  or  by  the  plaintiff  himself  if  he  sues  in  person. 

9.  The  officer  receiving  such  copy  shall  file  the  same,  Ord.  5,  K.  s. 
and  an  entry  of  the  filing  thereof  shall  be  made  in  a  book 

to  be  called  the  Cause  Book,  in  such  manner  as  shall  be 
dii'ected  by  rules. 

10.  Except  as  othei'wise  provided  by  this  Act,  all  writs 
of  summons  shall  be  served  in  the  same  manner  respec- 
tively as  process  from  the  Court  whose  juiisdiction  is 
transferred  to  the  High  Coui-t  might  have  been  served  if 
tliis  Act  had  not  been  passed,  and  the  High  Court  shall 
have  the  same  power  of  dii-ecting  substitution  of  service, 
or  that  any  service  already  made  should  be  deemed  good, 
or  that  notice  should  be  substituted  for  sei'vice,  as  might 
liave  been  exercised  by  the  said  Courts  respectively  if 
this  Act  had  not  been  passed. 

11.  Service  of  a  writ  of  summons  to  recover  possession  See  Ord.  9, 
of  land  may  be  made  in  the  same  manner  as  a  summons  ^'  ^' 
and  plaint  in  ejectment  might  have  been  served  if  this 

Act  had  not  been  passed. 

Interpleader. 

12.  The  procedure  and  practice  used  before  the  passing  Ord.  i,  E.  2. 
of  this  Act  with  respect  to  interpleader  by   Courts  of 
Common  Law  in  Ireland  shall  apply  to  all  the  Divisions 

of  the  High  Court  of  Justice,  and  the  application  by  a 
defendant  shall  be  made  at  any  time  after  being  served 
with  a  writ  of  summons  and  before  delivering  a  defence. 

Appearance. 

1 3.  The  defendant  shall  be  bound  to  appear  to  the  ^Yr\t 
of  summons  at  such  time  and  in  such  manner  as  may  be 
directed  by  rules. 


496-        SUPREME  COURT  0?  JUDICATURE  ACT  (IRELAND),  1877. 

Schedule  of       14.  It  sliall  not  beiiecessaiy  for  the  defendant  on  enter- 

liules.      -^^g  ^^  appearance  to  any  writ  of  summons  to  file  any 

Ord.  ]  2,  R.  defence  or  answer  thereto.     He  shall  enter  an  appearance 

(i,  7,  aud  8.   jjy  delivering  to  the  proper   officer   a  memorandum  in 

writing,   dated  on  the  day  of  delivering  the  same,   and 

containing  the  name  of  the  defendant's  solicitor,  or  stating 

that  the  defendant,  defends  in  person. 

The  solicitor  of  a  defendant  appearing  by  a  solicitor 
•  shaH  state  in  such  memorandum  his  registered  residence. 

A  defendant  appearing  in  person  shall  state  in  such 

memorandum  his  address,  and  a  place  to  be  called  his 

address  for  service,  which  shall  be  in  Ireland. 

Ord.  12,  R.        15.  If  the  memorandum  does  not  contain  such  address 

^-  it  shall  not  be  received ;  and  if  any  such  address  shall  be 

illusory  or  fictitious,  the  appearance  may  be  set  aside  by 

the  Court  or  a  Judge,  on  bhe  application  of  the  plaintiff'. 

Ord.  12,  R.       16.  Upon  receipt  of  a  memorandum  of  appearance,  the 

^^'  officer  shall  forthwith  enter  the  appearance  in  the  Cause 

Book. 
Ord.  12,  R,        17.  Any  person  not  named  as  a  defendant  in  a  writ  of 
1^-  summons  for  the  recovery  of  land  may,  by  leave  of  the 

Court  or  Judge,  ajipear  and  defend,  on  filing  an  affidavit 
showing  that  he  is  in  possession  of  the  land  either  Ijy  him- 
self or  his  tenant. 
Ord.  12,  R.        18.  Any  person  appearing  to  defend  an  action  for  the 
^^'  recovery  of  land  as  landlord,  in  respect  of  property  where- 

of he  is  ill  possession  only  by  his  tenant,  shall  state  in 
his  appearance  that  he  appears  as  landlord. 

Parties. 
Ord.  16,  R.  19.  No  action  shall  be  defeated  by  reason  of  the  mis- 
joinder of  parties,  and  the  Court  may  in  every  action  deal 
with  the  matter  in  controversy  so  far  as  regards  the  rights 
and  interests  of  the  parties  actually  before  it.  The  Court 
or  Judge  may,  at  any  stage  of  the  proceedings,  either 
upon  or  without  the  application  of  either  party,  in  the 
manner  prescribed  by  rules,  and  on  such  terms  as  may 
appear  to  the  Court  or  a  Judge  to  be  just,  order  that  the 
name  or  names  of  any  party  or  parties,  whether  as 
plaintiffs  or  as  defendants,  improperly  joined  be  struck 
out,  and  that  the  name  or  names  of  any  party  or  parties, 
whether  plaintiffs  or  defendants,  who  ought  to  have  been 
joined,  or  whose  presence  before  the  Court  may  be  neces- 
sary in  order  to  enable  the  Court  effectually  and  com- 
pletely to  adjudicate  upon  and  settle  all  the  questions 
involved  in  the  action,  be  added.  No  person  shall  be 
added  as  a  plaintiff  suing  without  a  next  friend,  or  as  the 
next  friend  of  a  plaintili"  under  any  disability,  without 


13. 


40  &  41  Vict.,  c.  57.  497 

his  own  consent  thereto.     All  parties  whose  names  are  Schedule  of 
so  added  as  defendants  shall  be  served  Tvith  a  summons     ^''^^ 
or  notice  in  snch  manner  as  may  be  prescribed  by  rules 
or  by  any  special  order,  and  the  proceedings  as  against 
them  shall  be  deemed  to  have  begun  only  on  the  service 
of  such  summons  or  notice. 

20.  When  there  are  nimierous  parties  having  the  same  Ord.  lo,  K. 
interest  in  one  action,  one  or  more  of  such  parties-  may  ''*• 

siie  or  be  sued,  or  may  be  authorised  by  the  Court  to 
defend  in  such  action,  on  behalf  or  for  the  benefit  of  all    ' 
parties  so  interested. 

Pleading. 

21.  Unless  the  defendant  in  an  action  at  the  time  of  Orel,  lo,  \i. 
his  appearance  shall  state  that  he  does  not  requii-e  the  -• 
delivery  of  a  statement  of  complaint,  the  plaintiif  shall, 

within  such  time  and  in  such  manner  as  may  be  directed 
by  rules,  deliver  to  the  defendant  after  his  appearance  a 
statement  of  his  complaint  and  of  the  relief  or  remedy  to 
which  he  claims  to  be  entitled.  The  defendant  shall, 
■within  such  time  and  in  such  manner  as  may  be  directed 
as  aforesaid,  deliver  to  the  plaintiff  a  statement  of  his 
defence,  set-off,  or  counter-claim  (if  any),  and  the  plaintifi" 
shall  in  like  manner  deliver  a  statement  of  his  reply  (if 
any)  to  such  defence,  set-ofl,  or  counter-claim.  Such 
statements  shall  be  as  brief  as  the  nature  of  the. case  will 
admit,  and  the  Court  in  adjusting  the  costs  of  the  action 
shall  inquire  at  the  instance  of  any  jDarty  into  any 
unnecessary  prolixity,  and  order  the  costs  occasioned  by 
such  prolixity  to  be  borne  by  the  party  chargeable  with 
the  same. 

22.  A  defendant  in  an  action  may  set  off  or  set  up  by  ord.  i9,  i;. 
way  of  covmter-claim  against  the  claims  of  the  plaintiff  '^^ 

any  right  or  claim,  whether  such  set-off  or  counter-claim 
sound  in  damages  or  not,  and  such  set-off  or  counter-claim 
shall  have  the  same  effect  as  a  statement  of  claim  in  a 
cross  action,  so  as  to  enable  the  Court  to  pronounce  a 
final  judgment  in  the  same  action,  both  on  the  original 
and  on  the  cross  claim.  But  the  Court  or  Judge  may, 
on  the  application  of  the  plaintiff  before  trial,  if  in  the 
opinion  of  the  Court  or  Judge  such  set-off  or  counter- 
claim cannot  be  conveniently  disposed  of  in  the  pending 
action,  or  ought  not  to  be  allowed,  refuse  permission  to 
the  defendant  to  avail  himself  thereof. 

23.  Every  pleading  shall,  unless  when  otherwise  pro-  ord.  if  u 
vided  by  rules,  contain  as  concisely  as  may  be,  a  statement  24.  * 

of  the  material  facts  on  which  the  party  pleading  relies, 
but  not  the  evidence  by  which  they  are  to  be  proved,  such 


498    SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 

Schedule  of  statement  being  divided  into  paragraphs  numbered  con- 

' !       secutively,  and  eacli  paragraph  containing,  as  nearly  as 

may  be,  a  separate  allegation.    Dates,  sums,  and  numbers 

shall  be  expressed  in  figures,  and  not  in  words.     Signature 

of  counsel  shall  not  be  necessary. 

Orel.  ID,  R.       24.  Every  statement  of  claim  shall  state  specifically 

'"*■  the  relief  which  the  plaintifi"  claims,  either  simjily  or  in 

the  alternative,  and  may  also  ask  for  general  relief ;  and 

the  same  rule  shall  apply  to  any  counter-claim  made  or 

relief  claimed  by  the  defendant  in  his  statement  of  defence. 

If  the  plaintifi"  's  claim  be  for  discovery  only^  the  plaintifi" 's 

claim  shall  show  it. 

Orel.  19,  R.        25.  It  shall  not  be  sufficient  for  a  defendant,  unless 

-'^-  where  otherwise  provided  by  rules,  in  his  defence  to  deny 

generally  the  facts  alleged  by  the  statement  of  claim,  or 

for  a  plaintiff,   in  his  reply  to   deny  generally  the  facts 

alleged  in  a  defence  by  a  way  of  counter-claim,  but  each 

party  mixst  deal  specifically  with  each  allegation  of  fact 

of  which  he  does  not  admit  the  truth. 

Ord.  19,  R.        26.  When  a  contract  is  alleged  in  any  pleading,  a  bare 

-^-  denial  of  the  contract  by  the   opposite   party  shall   be 

construed  only  as  a  denial  of  the  making  of  the  contx^act 

in  fact,  and  not  of  its  legality  or  its  sufiiciency  in  law, 

whether  with  reference    to   the    Statute  of   Frauds,   or 

otherwise. 

Ord.  2C,  R.       27.  Where  in  any  action  it  appears  to  a  Judge  that 

the  statement    of  claim  or  defence    or   rejjly   does    not 

sufliciently  define  the  issues  of  fact  in  dispute  between 

the   parties,  he  may  direct  the  parties  to  prepare  issues, 

and  such  issues  shall,  if  the  parties  difier,  be  settled  by 

the  Judge. 

Ord.  27,  R.        28.  The   Court  or  a  Judge  may,  at  any  stage  of  the 

1  and  2.       proceedings,  allow  either  party  to  alter  his  statement  of 

claim  or  defence  or  rejjly,  or  may  order  to  be  struck  out 

or  amended  any  matter  in  such  statements  respectively 

which  may  be  scandalous  or  which  may  tend  to  prejudice, 

embarrass,  or  delay  the  fair  trial  of  the  action,  and  all 

such  amendments  shall  be  made  as  may  be  necessary  for 

the  purpose  of  determining  the  real  questions  oi-  question 

in  controversy  between  the  parties  ;  and  all  parties  shall 

have  also  such  further  powers  of  amendment  as  may  be 

prescribed  by  rules. 

Ord.  22  R.       -'•^-  -^  demurrer  to  any  statement  may  be  filed  in  such 

2.  manner  and  form  as  may  be  prescril>ed  by  I'ules. 

Ord.  30,  R.        30.  Where  any  action  is  brought  to  recover  a  debt  or 

'•  damages,  any  defendant  may,  at  any  time  after  service  of 

the  writ,   and  before  or  at  the  time  of  delivering  his 

defence,  or  by  leave  of  the  Court  or  a  Judge  at  any  later 


40  &  41  YiCT.,  c.  57.  499 

time,  pay  into  Court  a  sum  of  money  by  way  of  satisfaction  Schedule  of 

or  amends.      Payment  into  Court  shall  be  pleaded  in  the       " 

defence  and  the  claim  or  cause  of  action  in  respect  of 
which  such  payment  shall  be  made  shall  be  specified  therein. 

31.  The  parties  may,  as  may  be  directed  by  rules,  after  ord.  34,  R. 
the  writ  of  summons  has  been  issued,  concur  in  stating  1. 

the  questions  of  law  arising  in  the  action  in  the  form  of 
a  special  case  for  the  opinion  of  the  Court. 

JVew  Trial  Motions. 

32.  A  new  trial  shall  not  be  o-ranted  on  the  ground  of  Ord.  39,  R. 

.        .  3  and  4. 

misdirection  or  of  the  improper  admission  or  rejection  of 

evidence,  unless,  in  the  opinion  of  the  Court  to  which  the 
application  is  made,  some  substantial  wrong  or  miscarriage 
has  been  thereby  occasioned  in  the  trial  of  the  action  ; 
and  if  it  appear  to  such  Court  that  such  wrong  or  mis- 
carriage affects  part  only  of  the  matter  in  controversy, 
the  Court  may  give  final  judgment  as  to  part  thereof,  and 
direct  a  new  ti-ial  as  to  the  other  part  only,  and  a  new 
trial  may  be  ordered  on  any  question  in  an  action,  what- 
ever 1)0  the  grouudsfor  the  new  trial,  without  interfering 
with  the  finding  or  decision  upon  any  other  question. 

Ajyj^eals. 

33.  All  appeals  to  the  Court  of  Appeal  shall  be  by  way  Ord.  58,  R. 
of  rehearing,  and  shall  be  brought  by  notice  of  motion  in  ^■ 

a  summary  way,  and  no  petition,  case,  or  other  formal 
proceeding  other  than  such  notice  of  motion  shall  be 
necessary.  The  appellant  may  by  such  notice  of  motion 
appeal  from  the  whole  or  any  part  of  any  judgment  or 
order,  and  the  notice  of  motion  shall  state  whether  the 
whole  or  part  only  of  such  judgment  or  order  is  complained 
of,  and  in  the  latter  case  shall  specify  such  part. 

34.  The  notice  of  apjjeal  shall  be  served  upon  all  parties  Ord.  ss,  R. 
directly  afiected  by  the  appeal,  and  it  shall  not  be  neces- 
sary to  serve  parties  not  so  afiected ;  but  the  Court  of 
Appeal  may  direct  notice  of  the  appeal  to  be  served  on 

all  or  any  parties  to  the  action  or  other  proceeding,  or 
upon  any  person  not  a  party,  and  in  the  meantime  may 
postpone  or  adjourn  the  hearing  of  the  appeal  upon  such 
terms  as  may  seem  just,  and  may  give  such  judgment  and 
make  such  order  as  might  have  been  given  or  made  if  the 
jiersons  served  with  such  notice  had  been  originally 
parties.  Any  notice  of  appeal  may  be  amended  at  any 
time  as  to  the  Court  of  Appeal  may  seem  fit. 

35.  The  Court  of  Appeal  shall  have  all  the  powers  and  Ord.  5S,  R. 
duties  as  to  amendment  and  otherwise  of  the  Court  of  °- 
First  Instance,  together  with  full  discretionary  power  to 
receive  further  evidence  upon  questions  of  fact,  such  evi- 


500    SUPREME  COURT  OF  JUDICATURE  ACT  (IRELAND),  1877. 

Schedule  of  dence  to  be  either  by  oral  examination  in  Court,  by  affi- 
;       davit,  or  by  deposition  taken  before  an  examiner  or  com- 
missioner.    Svicli  further  evidence  may  be  given  without 
special  leave  upon  interlocutory  applications,  or  in  any 
case  as  to  matters  which  have  occurred  after  the  date  of 
the  decision  fi'om  which  the  appeal  is  brought.     Upon 
appeals  from  a  judgment  after  trial  or  hearing  of  any 
cause  or  matter  upon  the  merits,  such  further  evidence 
(save  as  to  matters  subsequent  as  aforesaid)  shall  be  ad- 
mitted on  special  grounds  only,  and  not  without  special 
leave  of  the  Court.     The  Court  of  Appeal  shall  have  power 
to  give  any  judgment  and  make  any  order  which  ought 
to  have  been  made,  and  to  make  such  further  or  other 
order  as  the  case  may  require.     The  powers  aforesaid  may 
be  exercised  by  the  said  Court,  notwithstanding  that  the 
notice  of  appeal  may  be  that  part  only  of  the  decision  may 
be  reversed  or  varied^  and  such  powers  may  also  be  exer- 
cised in  favour  of  all  or  any  of  the  respondents  or  parties, 
although  such  respondents  or  parties  may  not  have  ap- 
pealed from  or  complained  of  the  decision.     The  Court  of 
Appeal  shall  have  power  to  make  such  order  as  to  the 
whole  or  any  part  of  the  costs  of  the  appeal  as  may  seem  just. 
Orel.  58,  E.       36.  It  shall  not  under  any  circumstances  be  necessary 
''■  for  a  respondent  to  give  notice  of  motion  by  way  of  cross 
appeal,  but  if  a  respondent  intends  upon  the  hearing  of 
the  appeal  to  contend  that  the  decision  of  the  court  below 
should  be  varied,  he  shall,  within  such  time  as  may  be 
prescribed  by  rviles,  give  notice  of  such  intention  to  any 
parties  who  may  be  affected  by  such   contention.      The 
omission  to  give  such  notice  shall  not  diminish  the  jiowers 
conferred  by  the  Act  upon  the  Court  of  Appeal,  but  may 
in  the  discretion  of  the  Court  be  ground  for  an  adjourn- 
ment of  the  appeal,  or  for  a  special  order  as  to  costs. 

37.  The  forms  of  writs  and  pleadings  referred  to  in  these 
rules  are  the  forms  prescribed  in  the  several  appendices 
to  "The  Supreme  Court  of  Judicatitre  Act,  1875." 

Exceptions  from  the  Rules, 
Ord.  02.  38.  Nothing  in  these  rules  shall  affect  the  practice  or 

procedure  in  any  of  the  following  causes  or  mattei'S  : 

Criminal  proceedings. 

Proceedings  on  the  Crown  side  of  the  Queen's  Bench 
Division. 

Proceedings  on  the  Revenue  side  of  tlie  Exchequer 
Division. 

Proceedings  in  the  Probate  and  Matrimonial  Division. 

Proceedings  before  the  Land  Judges  of  the  Chancery 
Division. 


I     501     ] 

RULES 

UNDER 

THE  SUPREME  COURT  OF  JUDICATURE 
(IRELAND)  ACT, 

Ix  Addition  to  the  Rules  ix  the  Schedule  to 
THE  SAID  Act  contained. 

N.B. — The  Statutory  Rules  relating  to  Procedure  con- 
tained in  the  Schedule  to  the  Judicature  Act  {ante,  p.  494,) 
will  be  foxmd  inserted  below,  each  in  its  appropiiate 
context  and  connexion  with  the  order  whicli  deals  with 
the  same  subject,  and  marked  as  follows  : — - 
Schedule  Rule  1,  &c.  &c. 
Form  of  Action  and  Summons. 


Order  1. 
Schedule  Rule  1. 
Form  of  Action  in  High  Court.  Order^l. 

"  All  actions   which   have  hitherto  been  commenced  All  actions 
by  Writ  of  Summons  and  Plaint  in  the  Superior  Courts  hot*to  be 
of  Common  Law  in  Ireland,  and  all  suits  which  have  instituted, 
hitherto    been  commenced    by    Bill    or   Information   in  Orel,  i, 
the  High  Court  of  Chancery  shall  be  instituted  in  the  ^-  ^'  ^• 
High  Court  of  Justice  by  a  proceeding  to  be  called  an 
Action. 

"  All  other   proceedings   in  and   applications  to   the  Otiier  pro- 
High  Court  may,  subject  to  Rules  of  Court,  be  taken  and  <=*^^'^'"?^- 
made  in  the  same  manner  as  they  would  have  been  taken  ^%  \ 
and  made  in  any  Court  in  any  proceeding  or  application 
of  the  like  kind  could  have  been  taken  or  made  if  this 
Act  had  not  passed." 

On  the  subject  of  actions  see  Chapter  xlv.,  p.  353, 
ante. 

Schedule  Rule  2. 
Writ  of  Summons. 

"■  Every   action   in   the    High    Court,   shall    be   com-  Actions  to 
menced  by  a  Writ  of  Summons  Avhich  shall  be  indorsed  ^^  '^^^- 
with  a  statement  of  the  nature  of  the  claim  made,  or  of  wru"?  "^^ 
tlie  relief  or  remedy  required  in  the  action,  and  which  shall  summons. 
s})ecify  the   Di\Tision  of  the   High  Court  to  which  it  is  *^"^-  2; 
intended  that  the  action  shall  be  assigned."  ^'  ^'  ^' 

On  the  subject  of  this  Rule  see  Chapter  xlvL,  p.  355, 
ante. 


oC-2. 


WHIT  OF  SUMMONS. 


Order  1. 

Forms  of 
writs. 

Ord.  2, 
R.  2  A;  .3. 


Date  and 
teste  of 
writs. 

Ord.  2, 
K.  8,  E. 


Order  1. 

Rule  1. 

Form  of 
writ  of 
suniuions. 


Ord.  2, 
R.  3,  E. 


Right  to 
trial  by 
jury. 


Venue. 


Schedule  Rule  3. 
"  Every  Writ  of  Suminons  and  the  indorsement 
thereon  may  be  in  one  of  the  forms  hereinafter  referred 
to,  and  any  costs  incurred  by  the  use  of  any  more  prolix 
or  other  forms  of  Writs  or  of  indorsements  tliereon  than 
tlie  forms  hereinafter  referred  to,  shall  be  borne  by  the 
party  using  the  same,  unless  the  Court  shall  otherwise 
j3rescribe." 

Schedule  Rule  4. 
"  Every  Writ  of  Summons  and  also  every  other 
Writ  shall  bear  date  on  the  day  on  which  the  same  shall 
be  issued  and  shall  be  tested  in  the  name  of  the  Lord 
Chancellor,  or  if  the  office  of  Lord  Chancellor  shall  be 
vacant,  in  the  name  of  the  Lord  Chief  Justice  of  Ireland." 


E,ules  op  Court. 

Writ  of  Summons,  Form  of,  etc. 

L  The  writ  of  summons  for  the  commencement  of  an 
action  shall,  except  in  the  cases  in  which  any  diifei-ent 
form  is  hereinafter  provided,  be  in  Form  IS^o.  1  in  Part  I. 
of  Appendix  (A)  hereto,  with  such  variations  as  circum- 
stances may  require.  In  any  action  which  the  plaintiff 
proposes  to  be  tried  before  a  Judge  and  jury,  he  shall  in 
the  writ  of  summons  name  the  county  where  he  proposes 
to  have  the  same  tried.  It  shall  not  be  necessary  to  name 
any  county  or  place  in  such  writ  when  the  plaintiff  pro- 
poses the  action  to  be  tried  by  any  other  mode  of  trial. 

Form  of  Writ  No.  1  (Appendix  A),  is  for  service  in  Ireland 
only. 

For  service  out  of  Ireland  the  proper  forms  are  Nos.  3  &  4. 

As  to  use  of  forms  more  prolix,  and  as  to  procedure  as  to 
the  writ  of  summons  generally,  see  Cha]:)ter  xlvi.  p.  356,  ante. 

The  cases  in  which  a  ])laintiff  has  a  right  to  have  his  action 
tried  (so  far  as  any  questions  of  fact  arise  in  it)  by  a  jury,  are 
those  in  which  heretofore  any  party  to  the  action  might  of 
right  have  reqm'red  it,  see  Ord.  xxxv, ,  R.  2,  iiifrn,  and(.5n()  \  niitf, 
p.  392  ;  see  Order  xxxv.,  R.  2,  infra,  and  ante,  Chapter  Hv.,  p. 
392. 

The  J.  Act,  1877,  sec.  33,  requires  the  plaintiff  in  such  a 
case  shall  in  the  document  by  wliich  his  action  is  commenced, 
name  the  county  or  place  in  which  he  proposes  the  cause  shall 
be  tried ;  but  the  Court  may  direct  it  to  be  tried  elsewhere. 
Tlie  statute  directs  tliat  so  far  as  may  be  reasonably  consistent 
with  the  convenient  and  s])eedy  discharge  of  the  business, 
every  issue  of  fact  submitted  to  a  jury  sltnuld  be  tried  in  the 
county  or  place  in  wliicli  the  cause  of  action  has  arisen. 

As  to  amendment  of  writ,  sec  Chajiter  xlvi.  (444)  p.  359,  ante. 


WRIT  OF  SUIMMONS.  5 Of 

2.  The  writ  of  siiiumons  for  the  commencement  of  any    Order  1. 
action  upon  a  bill  of  exchange  or  promissory  note,  com-    j^^T^., 
menced  within  six  months  after  the  same  shall  have  become  j,jj]^  ^^ 
due  and  payable,  may  be  in  the  Form  and  have  the  notice  Exciiange 
and  indorsements  mentioned  in  No.  2  in  Part  I.,  Appen-  -^''*'- 
dix  A.     In  such  actions  the  procedure  under  the  Bills  of 
Exchange  (Ireland)  Acts,  24  &  25  Yic,  c.  43,  and  25  Vic,  Orel.  l>, 
c.  23,  shall  apply  as  if  such  writ  were  a  writ  of  summons  ^-  ^'  ^• 
and  plaint,  with  such  notice  as  is  required  by  said  first- 
mentioned  Act. 

The  purport  of  the  analogous  rule  in  England  (Ord.  2.  R.  C) 
seems  to  continue  the  old  procedure  under  tlie  Bills  of  Ex- 
change Act,  although  Mr.  Justice  Lush  expressed  a  doubt 
whether  it  applied  after  declaration  delivered, (r/)  and  perhaps 
not  after  the  giving  or  refusing  leave  to  defendant  to  appear, 
and  judgment  consequent  on  the  latter. (6) 

The  Bills  of  Exchange  Act  requires  an  affidavit  of  personal 
service  in  order  to  have  judgment  immediately,  and  service  on 
a  partner  was  deemed  not  sufficient,  (c)  although  Mr.  Justice 
Brett  in  one  case  said  "  I  do  not  see  why  a  personal  service  on 
one  of  two  partners  should  not  be  good  service  in  such  a 
case."(r/) 

It  was  truly  said,  by  a  special  indorsement  on  the  wi-it  under 
Oi'd.  II,  R.  3,  infra,  for  a  liquidated  demand  a  plaintiff  may 
obtain  an  equal  advantage  by  having  judgment  under  Order 
xiii.,  R.  1,  infra,  as  by  a  proceeding  under  the  Bills  of  Ex- 
change Act,  except  that  the  plaintiff  would  have  to  take  the 
initiative  instead  of  the  Defendant.(e)  After  leave  to  appear, 
the  new  procedure  has  been  applied  at  later  stages  to  actions 
commenced  under  the  Bills  of  Exchange  Act,  thus  the  name  of 
a  new  person  has  been  substituted  for  that  of  the  plaintiff  at 
the  plaintiff's  instance.  (/')  So  after  statement  of  claim  de- 
livered, a  new  defendant  has  been  added  on  application  of  the 
original  defendant, (^)  and  in  an  action  pending  when  the 
Judicature  Act  came  into  force,  after  leave  to  defend,  it  M'as 
ordered  that  the  action  should  be  continued  generally  under 
the  J.  Act.(^) 

It  should  be  observed  the  language  of  our  Rule  is  less 
imperative  than  that  of  the  English  Rule.  The  latter  says  the 
old  procedure  shall  continue  to  be  used.  Our  Rule  says  that 
"  in  actions  commenced  by  wi'it  of  summons  in  Form  No.  2,  the 

(«)  Campbell  v.  Jm.  Tlnu-n,  20  Sol.  Jour.  31. 

C6)  Pollock  V.  Camobell,  L.  R.,  1  Ex.  D.  50 ;  24  W.  R,  320 ;  Anon. 
W.  X.  1875,  248,  Quain,  J. 

(c)  lb. 

(f/)  Oger  V.  Bradniim,  L.  R.,  1  C.  P.  D.,  at  p.  3,  337. 

(e^  Anon.  W.  N.  1875,  248;  20  Sol.  Jour.  141,  Quain,  J. 

(/)  Mercantile  River  Plate  Banli  v.  Isaac;  20  Sol.  Jour.  £40, 
W.  N.  1876,  104,  Denman,  J. 

(r/)  Anon.  W.  N.  187G,  23  ;  20  Sol.  Jour.  242,  Lindlev,  J. 

(A)  Norris  v.  Beazley,  L.  R.,  2  C.  P.  D.,  SO;  25  W\  K.  320. 


iOi 


WRIT  OF  SUMMONS. 


Order  1. 


KULE  3. 

Leave  for 
service  out 
of  jurisdic- 
tion. 
Ord.  2, 
R.  4,  E. 


Rule  4. 
Title  of 
affidavit 
for. 

Ord  2, 
R.  5,  E. 


Rule  5. 

Form  of 
writ  for. 


olfl  procedure  sliall  apply  as  if  the  writ  were  a  writ  of  summons 
and  plaint." 

3.  No  writ  of  summons  for  service  out  of  the  jurisdiction, 
or  of  which  notice  is  to  be  given  out  of  the  jurisdiction, 
shall  be  issued  without  the  leave  of  a  Court  or  Judge. 

As  to  cases  in  which  service  of  the  writ  of  summons  out 
of  the  jurisdiction  can  be  allowed,  see  Order  x.,  infra. 

One  order  may  be  made  combininsj  several  objects  in  rela- 
tion to  this  matter,  viz. :  First  for  liberty  to  issue  the  writ  for 
service  out  of  the  jurisdiction :  and  secondly,  that  when  the 
writ  has  been  issued,  an  injunction  do  issue,  and  that  inter- 
rogatories maybe  served;  and  further,  that  plaintiff  maybe 
at  liberty  to  serve  the  writ  and  the  interrogatories  out  of  the 
jurisdiction,  (i) 

The  Court  declined  to  give  leave  to  Issue  a  writ  against  .a 
foreign  sovereign,  ex.  gr.,  the  Sultan  of  Turkey,  with  a  view 
of  service  on  the  Turkish  And3assador.(A) 

The  application  is  usually  joined  with  one  for  liberty  also 
to  serve  the  ^vrit  out  of  the  jurisdiction. (Z)  As  to  the  affidavit 
see  infra,  Rule  4. 

4.  The  application  for  such  leave  shall  be  grounded  on 
an  affidavit  entitled  as  between  the  parties  to  the  intended 
action,  and  "  In  the  matter  of  the  Supreme  Court  of  Judi- 
cature Act  (Ireland),  1877." 

This  rule  embodies  the  decisions  made  in  England,  to  the 
effect  that  the  affidavit  should  be  entitled  in  the  action  about 
to  be  Instituted,  and  In  the  matter  of  the  Judicature  Act, 
and  that  on  such  an  affidavit  an  assignment  of  perjury  might 
be  made.(m) 

5.  A  "Writ  of  summons  to  be  served  out  of  the  juris- 
diction, or  of  which  notice  is  to  be  given  out  of  the 
jurisdiction,  shall  be  in  Form  No.  3  in  Part  I.  of  Appendix 
(A)  hereto,  with  such  variations  as  circumstances  may 
require.  Such  notice  shall  be  in  Form  No.  4  in  the  same 
part,  with  such  variations  as  circumstances  may  requii-e. 


Order  2. 

Indorse- 
ment of 
claim. 
Ord.  3, 
U.  1,  E. 


Order  II. 
Indorsemejit. 
Schedule  Rule  5, 
The   indorsement   of  claim  shall  be   made   on   every 
writ  of  summons  before  it  is  issued. 

(i)  Young  V.  Brassey,  L.  R.  1  Ch.  D.  277  ;  2-1  W.  R.  110  ;  20  Sol. 
Jour.  91,  V.  C.  IL 

(yt)  Stewart  v.  Bank  of  Enfjland,  W.  N.,  1870,  2C,?,,  M.  R. 

(/)  In  re  fi^oods  of  Chamberlayne,  20  Sol.  Jour.  373,  Prob. 

(»/i)  Younu  V.  Brassey,  L.  R.,  1  Ch.  D.  277,  24  W.  R.  110 ;  20  Sol. 
Jour.  91,  V.C.  H. 


"   INDORSEMENT   OF  CLAIM.  505 

Schedule  Rule  6. 
"  In  the  indorsement  it  shall  not  be  expedient  to  set    Order  2. 
forth  the  precise  ground   of   complaint    or    the  precise  jj-q^  ^5.^,^^ . 
remedy  or  relief  to   which  the  plaintiff  considers  himself  tiaiiisiiould 
entitled.     The  plaintiff  may,   by  leave  of  the   Court  or  pr^^J^/J'' 
Judge,  amend  such  indorsement  so  as  to  extend  it  to  ground  of 
any  other  cause  of  action  or  any  additional  remedy  or  complan.t. 
relief.     If  none  of  the  forms  hereinafter  i-eferred  to  shall  ^'  ^  ^^. . 
be  applicable  to   the   case,  such  other  similarly  concise  ^    '  ^ 
forms  may  be  used  as  the  nature  of  the  case  may  require."    ^^^.^j  3 

K.  3. 

Rules  of  Court. 

1.  If  the  plaintiff  seek  a  receiver,  mandamus,  or  iniunc-     „ 
ti'on,  as  part  of  his  relief,  he  shall  indorse  a  claim  to  that  0^,;^  f^^ 

effect  upon  his  writ.  receiver  or 

.  .  injunction. 

AVe  have  seen(a)  that  the  wnt  of  summons  must  be  indorsed 
^vith  a  statement  of  the  relief  or  remedy  required,  although  it 
is  not  essential  that  the  precise  ground  of  complaint  should  be 
set  forth,  but  still  the  relief  to  be  given  must  be  in  harmony 
with  the  claim.  (J) 

As  to  right  to  a  receiver,  see  Chapter  39,  ante,  p.  296,  and  to 
a  mandamus  or  injunction,  Chapter  38,  ante,  p.  281. 

2.  If  the  plaintiff  sues  or  the  defendant  or  any  of  the     _  .     ., 
defendants  is  sued  in  a  representative  capacity,  the  indorse-  _, 

^  •         I         1  •      Cliaracter 

ment  shall  show,  m  manner  appearing  by  the  statement  m  in  wliuh 
Appendix  (A)  hereto.  Part  II.,  sec.  VI.,  or  by  a  statement  plaintiff 
to  the  like  effect,  in  what  capacity  the  plaintiff  or  defendant  j-,  ,' 
sues  or  is  sued.  r.  4,  e. 

It  is  doubtful  whether  this  rule  prevents  a  plaintiff  issuing  a 
wfit  in  his  own  right,  and  in  his  statement  of  claim  after- 
wards setting  forth  a  cause  of  action  in  autre  droit,  as  he  might 
have  done  heretofore.     See  Ord.  16,  R.  5,  infra. 

Where  plaintiff  sued  on  behalf  of  all  other  parties  interested 
in  a  suit  for  administration  of  assets  of  a  deceased  person,  it 
has  been  considered  unnecessary  to  state  this  in  the  writ, 
though  it  should  be  stated  in  the  statement  of  claim, (c)  but  as 
some  Judges,  and  two  of  the  Judges  who  formerly  so  decided, 
have  doubted  this,((:/)  it  would  be  safer  to  express  it  in  the  writ 
as  well. 

(rt)  Schedule,  Rules  5  &  6  ante. 

{b)  Colebourne  v.  Colebourue,  L.  R.,  1  Chan.  D.  690 ;  24  W.  R.  235, 
V.  C.  H. 

(c)  Eyre  v.  Cox,  24  W.  R.,  317,  M.  R. ;  Cooper  r.  Blissett,  L.  R., 
1  Chan.  D.  691 ;  24  VV.  R.  235,  V.  C.  H. 

(d)  Worraker  v.  Fryer,  L.  R..  2  Chan.  D.  109  ;  24  W.  R.  269,  M.  R. ; 
Fryer  v.  Royle,  L.  R.,  5  Chan.  540 ;  25  W.  R.  528,  V.  C.  B.  ;  In  re 
Yincent  Parham  v.  Vincent,  26  W.  R.  94,  V.  C.  H. ;  Alcock  v.  Peters, 
20  Sol.  Jour.  451,  V.  C.  M. 

Z 


506 


IXDOKSEMENT   OF   CLAIM. 


Order  2.  3_  In  all  actions  wliere  tlie  plaintiff  seeks  merely  to 

KuLE  3.     recover  a  Jel)t  or  liquidated  demand  in  money  payable  by 

Special  in-    the  defendant,  with   or  without  interest,  arising  upon  a 

dorsement    contract,  express  or  implied,  as,  for  instance,  on  a  bill  of 

demand!'^      exchange,  promissory  note,  cheque,  or  other  simple  contract 

(ird.  3,  debt,  or  on  a  bond  or  conti'act  imder  seal  for  payment  of 

K.  G,  E.       a  liquidated  amovmt  of  money,  or  on  a  statute  where  the 

sum  sought  to  be  recovered  is  a  fixed  sum  of  money  or  in 

the  nature  of  a  debt,  or  on  a  guaranty,  whether  under  seal 

or  not,  where  the  claim  against  the  principal  is  in  respect 

of  such  debt  or  liquidated  demand,  bill,  cheque,  or  note, 

or  on  a  trust,  the  writ  of  summons  may  Ije  specially  indorsed 

with  the  particulars  of  the  amount  sought  to  be  recovered, 

after  giving  credit  for  any  payment  or  set-off. 

This  provision  is  similar  to,  but  more  extensive  in  its  object, 
than  that  of  the  Com.  Law  Pro.  Act,  1853,  s.  11.  Its  main 
object  is  to  enable  the  plaintifi  to  apply  under  Order  xiii.,  for 
judgment  in  a  summary  way  against  one  or  more  of  the 
defendants  in  case  of  their  non-appearance,  and  also  notwith- 
standing the  appearance  of  tlie  defendant,  unless  he  can  show 
good  cause  to  the  contrary  by  displacing  the  plaintiff's  affidavit 
('f  a  good  cause  of  action  and  of  his  belief  that  defendant  has 
no  defence — see  Ord.  xiii.,  K.  1,  infra. 

It  applies  only  where  the  plaintiff's  claim  is  for  a  debt  or 
lic[uidated  demand,  i.e.,  such  an  one  as  can  be  ascertained  by 
calculation,  and  of  course  it  excludes  such  as  can  be  ascer- 
tained only  by  the  estimation  of  a  jury.(e)  A  penalty  imposed 
by  statute  may  come  within  the  former  category.  (/")  It 
would  seem  to  be  confined  to  claims  seeking  direct  pay- 
ment of  money,  and  not  to  be  available  whei'e  the  claim  is 
to  have  a  sum  of  money  charged  on  separate  estate  of  a 
married  woman  (g)  However,  the  joinder  of  a  liquidated 
money  claim  with  another  not  liquidated  wiU  not  ])revent 
plaintiff  having  judgment  for  the  former.(A) 
Particulars.  The  Rule  does  not  require  the  indorsement  to  contain  any 
special  particulars  of  the  demand, (i)  but  it  should  sufficiently 
inform  the  defendant  of  the  claim  he  Is  called  on  to  meet, 
without  reference  to  a  solicitor.(A)  In  action  for  goods  sold, 
it  was  held  to  be  enough  to  say  the  plaintiff's  claim  was  for  so 
nuich,  for  balance  of  account  for  goods  sold.(Z) 


(e)  See  Cullon  v.  Moran,  2  Ir.  Jur.,  N   S.  28  Greene,  B. 
If)  M'Dermott  v.  Sullivan,  Ir.  Kep.,  2  Com    Law,  312  Kx. 
C'fj)  Butterworth  v.  Tee  and  Wife,  W.  N.  lS7<i,  9,  20  Sol.  Jour.  178, 
Quain,  J.     See  Dela.«aux  v.  Barling,  20  Sol.  Jour.  2i}9,  M.  li. 
(h)  Delasaux  v.  Barling,  ubi  supra,  j^er  ISI.  R. 

(0  lb. 

(/.)  See  i\Iordauntw.  Evan,  5  Ir.  Jur.  274,  C.  B.  Pigot. 
(/)  Anon.  W.  N.  1875,"  220    20  Sol.  Jour.  81,  S.  C.  nom.  I'ar.son  v. 
Smith,  2U  Sol.  Jour.  93,  A.  C. 


INDORSEMENT   OF   CLAIM.  507 

A  further  bill  of  particulars  will  not  usually  be  ordered,  and    Order  2. 
it  is  presumed  under  the  J.  Act.  that  such  Avill  not  be  neces-  pM,~7~ 
sary.     Where  it  is  needed  it  ought  to  be  given  in  the  first  particulars, 
instance  and  so  save  the  expense  of  a  second  document.(;Mj 
AV^'here  not  sufficiently  stated  the   court  has  required  it  to  be 
explained  (n) 

All  just  and  proper  credits  should  be  given  at  the  plaintiff's 
peril,  (a) 

The  plaintiff  is  not  limited  by  the  sum  indorsed  in  case 
defendant  omits  to  settle  the  action  in  the  first  instance  by 
payment  of  the  sum  indorsed.(/)) 

i^writ  issued  before  the  J.  Act  was  amended  bv  inserting 
an  indorsement  to  enable  plaintiff"  to  have  judgment  i^ereni])- 
torily  under  Order  xm.{q) 

A  special  indorsement  of  a  writ  on  a  Bill  of  Exchange  in 
order  to  obtain  judgment  under  Ord.  xiii.,  R.  ],  shouldcon- 
tain  all  particulars  of  the  Bill  or  note,  a  fortiori  where  contri- 
bution Avas  claimed  from  defendant  in  respect  of  several  bills 
and  notes  taken  up  by  plauitiff".((^(y) 

4.  AVlierever   the   ])laintifF's    claim    is   for  a  debt   or    Eule  4 
licjuidat^d  demand  only,  the  indorsement,  besides  stating  Amount, 
the  nature  of  the  claim,  shall  state  the  amount  claimed  co^tl'Tnd 
for  debt,  or  in  respect  of  such  demand,  and  for  costs  respec-  stay  of  pro- 
tively,  and  shall  further  state,  that  upon  payment  thereof  '^•^^dings  on 

• ,  1  •        f.  1  n.  ■  •  n  .  i.ayment. 

"vvithm  tour  days  alter  service,  or  m  case  of  a  writ  not  ord  3  r  / 
for  service  within  the  j  urisdiction  withLu  the  time  allowed 
for  appearance,  further  proceedings  will  be  stayed.  Such 
statement  may  be  in  the  Form  in  Appendix  (A)  hereto. 
Part  II.,  sec.  III.  The  defendant  may,  notwithstanding- 
such  payment,  have  the  costs  taxed,  and  if  more  than 
one-sixth  shall  be  disallowed,  the  plaintiffs  solicitor  shall 
pay  the  costs  of  taxation. 

A  fixed  sum  must  be  named  for  the  costs  claimed — at  the 
peril  of  the  plaintiff's  solicitor  of  costs  of  a  taxation as  de- 
fendant may  notwithstanding  payment  have  them  taxed  after- 
wards and  refunded  if  an  excessive  amount  be  indorsed. 

5.  In  all  cases  of  ordinary  account,  as,  for  instance,  in     Rule  5. 
the  case  of  a  partnership  or  executorship  or  ordinary  trust  Claim  for 
account,  where  the  plaintiff,  in  the  first  instance,  desires  account, 
to  have  an  account  taken,  the  writ  of  summons  shall  be  ^'^^-  ^  ^-  ■'^• 
indorsed  with  a  claim  that  such  account  be  taken. 

(77?.)  Anou.  W.  N.  1875,  202,  Lush,  J.  Anon.  20  Sol.  Jour.  102, 
Quain,  J. 

(«)  Anon.  W.  N.  1875,  220,  Lush,  J. 

(o)  jNIordaunt  v.  Ryan,  nhi  supra. 

(p)  Jaquot  V.  Boura,  5  Mee  and  ^Y.  156.  Bowdid"-e  i\  Slanev  ^ 
Bingh.  N.  C.  142. 

(q)  Denison  v.  Franklvn,  20  Sol.  Jour.  198,  Liadlev  J.  \nou 
W.  N.  1876,  53,  Archibald,  J.  ""  " 

(22)  Walker  v.  Hicks,  L.  R.,3  Q.  B.  D.  8,  26  W.  R.  113. 

z  2 


508 


INDORSEMENT   OF   ADDRESS. 


Order  2. 


An  indorsement  of  this  nature  entitles  a  plaintiff  to  apply 
for  a  preliminary  order  for  an  account,  either  before  or  after 
apjiearance,  and  without  waiting  for  a  decree  to  account,  or 
a  judgment  to  that  effect  made  at  the  hearing  of  the  cause. (r) 
It  seems  it  does  not  supersede  the  administration  summons  in 
proper  cases. 


Order  3. 

KULE  1. 

Address  of 
l)huutiff. 
name  of 
solicitor. 
Ord.  4, 
K.  1,  E. 


Rule  2. 

Itesldence 
of  plaintitr 
ill  person. 
Ord.  4. 
R.  2,  E. 


Order  III. 
Indorsement  of  A  cl dress. 

1.  The  solicitor  of  a  plaintiff  suing  by  a  solicitor  shall 
indorse  upon  every  writ  of  summons,  and  notice  in  lieu 
of  service  of  a  writ  of  smnmons,  the  address  of  the  plaintiff, 
and  also  his  own  name  or  firm  and  registered  place  of 
business. 

The  address  of  the  plaintiff  would  seem  to  be  his  place  of 
residence,  mentioned  in  Rule  2,  and  would  include  the  city, 
town,  or  parish,  name  of  street  and  number  of  house.  The 
house  in  which  plaintiff  habitually  sleep.s,  and  not  his  place  of 
business,  is  his  residence,  (.s)  Temporary  absence  from  home 
does  not  prevent  the  ordinary  abode  being  described  as  the 
place  of  residence. (^) 

The  object  of  this  proA'ision  is  to  prevent  sham  actions,  or 
actions  by  absconding  plaintiHs,(M)  and  also  to  enable  defen- 
dant to  settle  the  claim,  and  if  the  latter  can  show  he  was 
really  at  a  loss  to  discover  plaintiff's  residence,  the  omission 
might  justify  the  setting  aside  the  writ.(r) 

Wilful  misstatement  of  plaintiff's  residence  may  cause  the 
writ  to  be  set  aside, (?o)  and  where  the  object  was  to  evade 
giving  security  for  costs,  plaintiff  was  made  pay  costs  of 
motion,  (x) 

Where  an  insufficient  address  is  given,  e.g.,  Dublin,  without 
name  of  street,  advantage  of  the  irregularity  should  be  taken 
promptly.  (2/) 

2.  A  plaintiff  suing  in  person  shall  Lndorse  upon  every 
writ  of  summons,  and  notice  in  lieu  of  service  of  a  wi-it  of 
summons,  his  place  of  residence  and  occupation,  and.  also, 
if  his  place  of  residence  shall  not  be  within  the  municipal 
boundary  of  the  city  of  Dublin,  another  proper  i)lace,  to 
be  called  his  address  for  service,  which  shall  be  within  such 

(r)  See  Bell  v.  Lowe,  20  Sol.  Jour.  97,  Quain,  .1. 

(s)  Torn  V.  Nagle,  13  Ir.  Com.  Law  Rep.,  Appen.  38,  Ex.;  Alleu- 
borough  V.  Thompson,  2  Hurl,  and  N.  599. 

(0  See  Maguire  v.  Monahan,  6  Ir.  Jur.,  N.  S,  25L  Ex. 

(u)  See  O'Brien  v.  Lemas,  1  Ir.  Jur.  N.  S.,  140. 

(v)  See  Roche  v.  Wilson,  3  Ir.  Com.  Law  Rep.  2^2,  G  Ir.  Jur.  290; 
Dempster  v.  Vernon,  6  Ir.  Jur.,  N.  S.  366  ;  O'Brien  v.  Lemas,  ubi 
svpra. 

(?/')  Adams  v.  O'Brien,  5  Ir.  Jur.,  40  Ex.:  Curry  v.  Johnson,  2 
Ir.  Com.  Law  Rep.  461,  Q.  B. 

(x)  Tom  r.  Nagle,  supra. 

(y)  Roche  v.  Wilson,  supra. 


WRIT    OF   SUMMONS.  oUJ) 

municipal  boundary,  where  writs,  notices,  petitions,  orders,    Order  3. 
summonses,  warrants,  and  other  documents,  proceedings, 
and  written  communications  may  be  left  for  him. 


Order  IV.  ^'^^- 

Writs  of  Summons,  Issuing,  Filing,  etc. 
Schedule  Kule  7. 
"  Writs  of  summons  shall  be  prepared  by  the  plaintiff  ^^'''^s  vrc- 
or  his  solicitor  in  sucla  manner  as  shall  be  directed  by  se^iled. 
rules,  and  shall  be  sealed  by  the  proper  officer,  and  shall  ord.  5, 
thereupon  be  deemed  to  be  issued."  R.  s  &  g,  e. 

Schedule  Rule  8. 
"The  plaintiff  or  his  solicitor  shall,  on  presenting  any  signed  cop- 
writ  of  summons  for  sealing,  leave  with  the  officer  a  copy  '^ft  with 
of  such  writ,  and  all  the  indorsements  thereon,  and  such  ^   '^'^^' 
copy  shall  be  signed  for  or  by  the  solicitor  leaving  the  ^  ^  £ 
same,  or  by  the  plaintiff  himself,  if  he  sues  in  person." 
Schedule  Rule  9. 
"  The  officer  receiving  such  copy  shall  file  the  same,  and  9°^^  "'^'"^ 
an  entry   of  the  filing  thereof  shall  be  made  in  a  book  entertdiu 
called  the   Caiise    Book,    in   such   manner   as    shall  be  cause  book. 

dii-ected  by  rules."  Ord.  5, 
ft.  8,  E. 

Rules  of  Court. 

1.  Until  the  consolidation  of  the  Record    and  Writ     p^l^e  i. 
Office  in  Chancery  with  tlie  Writ  and  Seal  Office  of  the  j.^yg  ^f 
Law  Courts,  writs  of  summons  in  actions  to  be  assigned  writ=. 
to  the  Chancery  Division  shall  be  issued  out  of  the  Record 
and  Writ  Office  of  that  division  ;  and  writs  of  summons 
in  actions  to  be  assigned  to  the  Queen's  Bencli  Division, 
the  Common  Pleas  Division,  or  the  Exchequer  Division, 
shall  be  issued  out  of  the  Writ  and  Seal  Office. 

The  consolidation  of  the  two  offices  of  issue  for  wi-its  as 
contemplated  by  the  J.  Act,  1877,  s.  72,  §  9,  has  not  been 
accompHshed  yet,  and  until  it  takes  place  there  will  be  two 
offices  of  issue  of  writs  for  the  High  Court  of  Justice,  and  four 
several  cause  books,  one  for  each  Division,  Avith  apparently 
four  independent  series  of  numbers  of  the  causes,  and  as  many 
stafi's  of  officers.  AVhether  the  writs  for  the  three  Common 
Law  Divisions  will  be  marked  when  issued,  according  to  a  rota- 
tion or  some  other  plan  of  distribution  to  be  made  in  pursuance 
of  section  35  of  the  J.  Act,  is  not  expressed  by  the  Rule. 

One  copy  of  the  writ  is  to  be  left  with  the  officer  of  issue 
when  presenting  the  writ  to  be  sealed,  in  obedience  to  the 
Schedule  Rule  8,  supra,  and  another  copy  with  the  officer 
having  charge  of  the  pleadings  under  Rule  2  of  this  order. 


510 


WKIT   OF   SUMMONS. 


Order  4, 

liULE  2. 

Copy  \fi't 
-with  officer. 

Ord.  5, 
K.  7,  E. 


KULE  3. 

Assigu- 
ment, 
notice  of. 

Ord.  5, 
K.  9,  E. 


KfLE  4. 

Filing,  see 
Order  -5, 
R.  8,  E. 

Rule  5. 
Cause 
))ooks, 

Ord.  5. 
R.  8,  E.' 


2.  The  plaintiff  or  his  solicitor  shall,  in  actions  assigned 
to  the  Queen's  Bench,  Common  Pleas,  or  Exchequer 
DiA-isions,  leave  with  the  pi'oper  officer  of  the  division  to 
which  the  action  is  assigned  a  copy  of  the  writ  of  sum- 
mons, and  all  the  indorsements  thereon,  within  two  days 
after  such  writ  shall  have  been  issued,  and  such  copy  shall 
be  signed  by  or  for  the  solicitor  leaving  the  same,  or  by 
the  plaintiff  himself  if  he  sues  in  person. 

In  England  the  existence  of  an  action  in  the  High  Court  of 
Justice  may  be  proved,  on  an  indictment  for  perjury  committed 
in  the  action,  by  production  by  the  officer  of  the  copy 
of  the  writ  filed  with  the  officer,  of  origin  of  the  writ, 
under  the  Order  5,  R.  7,  English,  and  a  copy  of  the  plead- 
ings.(A)  In  the  complication  existing  in  our  present  system 
it  may  become  uncertain  whether  the  proper  evidence  is  to 
come  from  the  Writ  and  Seal  Office,  in  which  one  copy  is 
by  Statute  lodged,  or  from  the  pleadings  department  of  the 
Division  to  which  the  writ  becomes  attached,  where  another 
copy  is  to  be  lodged  under  this  rule. 

If  plaintiff's  solicitor  omits  to  leave  copy  of  writ  with  the 
officer  within  two  days,  or  at  any  greater  interval  of  time  (a  not 
improbable  event),  this  rule  does  not  say  what  shall  be  the 
consequence.  It  will  no  doubt  be  an  irregularity,  and  the 
division  will  have  no  notification  of  the  action  being  assigned 
to  it,  and  of  course  cannot  give  judgment  by  default  in  the 
action.  But  whether  it  will  be  competent  for  the  officer  to 
accept  the  cojiy  after  the  proper  time  without  an  order  does 
not  a})pear. 

3.  Notice  to  the  proper  officer  of  the  assignment  of  an 
action  to  any  division  under  section  37  of  the  Supreme 
Court  of  Judicature  Act  (Ireland),  1877,  shall  be  suffi- 
ciently given  by  leaving  with  the  Clerk  of  Records  and 
Writs  of  the  Chancery  Division  the  copy  of  the  writ  of 
summons  as  prescribed  by  the  Act,  and  with  the  proper 
officer  of  any  of  the  other  divisions  the  copy  of  the  writ 
of  summons  as  prescribed  by  the  preceding  Bule. 

4.  The  officer  receiving  such  copy  shall  file  the  same, 
and  an  entry  of  filing  the  same  shall  be  made  in  the 
Cause  Book  of  his  division. 

5.  In  the  Chancery  Division,  the  Queen's  Bench  Divi- 
sion, the  Common  Pleas  Division,  and  the  Exchequer 
Division  respectively,  there  shall  be  kept  by  the  proper 
officer  of  each  division  a  book,  to  be  called  the  Cause 
Book,  which  shall  be  kept  in  the  form  in  Appendix  G. 

In  the  Cause  Book  each  action  shall  be  distinguished 
by  the  date  of  the  year,  and  a  letter,  and  a  number  in 
consecutive  order,  which  shall  be  called  the  record  number 


(/-•;  The  Queen  v.  Scott,  L.  K.,  2  Q.  B.  D.,  415;  25  W.  K.  097. 


CONCURRENT  WRITS.  511 

of  the  action,  in  the  manner  in  whicli  causes  are  now    Order^'l. 
distingnished  in  the  Cause  Books  kept  by  the   Clerk  of 
Records  and  Writs  in  the  Court  of  Chancery. 

6.    Writs  of  summons,  and  the  copies  thereof  to  be  left     Rule  g. 
under  the  Act  and  these  Hules,  shall  be  wiitten  or  printed,  ^J^^\l^  ^j. 
or  partly  written  and  pai'tly  printed,  in  the  manner  and  on  ijrinted 
the  description  of  paper  hereinafter  directed.  paper. 

As  to  proper  paper  for  writs,  see  Order  Ivi.,  R.  2,  infra.         j^  5^  ^ 


Order  Y. 
Co^icurreiit  Writs.  O^ifl^. 

1.  The  plaintiff  in  any  action  may,  at  the  time  of  or    Rule  1. 
at  any  time  during  twelve  months  after  the  issuing  of  the  issued 
original  wi"it  01  summons,  issue  one  or  more  concuri-ent  months, 
writ  or  writs,  each  concurrent  writ  to  bear  teste  of  the  ord.  e, 
same  day  as  the  original  writ,  and  to  be  marked  with  a  K- 1.  E. 
seal  bearing  the  word  "concurrent,"  and  the  date  of  issuing 

the  concurrent  writ ;  and  such  seal  shall  be  impressed 
upon  the  writ  by  the  proper  officer :  Provided  always 
that  such  conciirreiit  writ  or  writs  shall  only  be  in  force 
for  the  period  during  which  the  original  writ  in  such  action 
shall  be  in  force. 

The  form  and  indorsements  of  the  concurrent  wi'its  are  to 
be  the  same  as  those  of  the  original  writ,  and  they  differ  only 
in  being  sealed  with  a  seal  bearing  the  word  "  concuiTent "  on 
them.  The  chief  use  of  them  is  where  there  are  several  de- 
fendants and  it  is  desn-ed  to  serve  them  simultaneously, 
especially  where  one  defendant  resides  within,  and  the  other 
without  the  jurisdiction  (a) 

Where  the  Writ  of  Summons   had  been  renewed  and  the 
renewed  writ  was  lost  and  the  time  for  issue  of  a  concurrent 
writ  had  lapsed,  there  was  no  power  either  to  issue  a  duplicate  'l 
of  the  renewal  or  a  concurrent  writ. (6) 

The  costs  of  concurrent  or  duplicate  writs  will  probably  not 
be  allowed  against  defendants  unless  the  taxing  officer  is  satis- 
tied  the  circumstances  justified  their  issue,(c) 

2.  A  writ  for  service  within  the  jurisdiction  may  be     Rule  2, 
issued  and  marked  as  a  concurrent  writ  with  one  for  F"""  service 

1  jy       ^-       •      T  c  •        •     X     1         •  within  and 

service,  or  whereof  notice  in  lieu  01  service  is  to  be  given  outof  juris- 
out  of  the  jurisdiction ;  and  a  "wiit  for  service,  or  whereof  diction, 
notice  in  lieu  of  service  is  to  be  given  out  of  the  iuiis-  Ord-  ^^ 

■     R  2    F 

diction,  may  be  issued  and  marked  as  a  concurrent  writ    '   ' 
with  one  for  service  within  the  jurisdiction. 

(a)  See  Beddingtoa  v.  Beddington,  L.  R.  1  Pro.  and  D.  42G,  24 
W.  R.  348. 

(6)  Davis  V.  Garland,  L.  R.  1,  Q.  B.  D.  250,  24  W.  R.  252. 
(c)  See  101  Geu.  Ord.  1854  (Commou  Law), 


5x2 


DISCLOSURE   BY   SOLICITORS,  &LC. 


Ord.  7, 
R.  1,  E 


Order  VI. 
Order^6.  Disclosure  hy  Solicitors  and  Plaintiffs. 

Rule  1.  1,  Eveiy  solicitor  wliose  name  shall  be  indorsed  on  any 
Solicitor  to  wi'it  of  summons  shall,  on  demand  in  writing  made  by  or 
avow  writ.  Q^jjehalf  of  any  defendant  who  has  been  served  therewith 
or  has  a2:)peared  thereto,  declare  forthwith  whether  such 
writ  has  been  issued  by  him  or  with  his  authority  or 
privity ;  and  if  such  solicitor  shall  declare  that  the  writ 
was  not  issued  by  him  or  with  his  authority  or  privity, 
all  proceedings  upon  the  same  shall  be  stayed,  and  no 
further  proceedings  shall  be  taken  thereupon  without  leave 
of  the  Court  or  a  Judge. 

This  Rule  is  similar  to  that  in  the  Com.  Law  Pro.  Act,  1853. 
section  13,  see  note  to  Ord.  iii.,  R.  1,  ante. 

Rule  2.  2.  When  a  writ  is  sued  out  by  partnei's  in  the  name 
Pisclosure  of  their  firm,  the  plaintiffs  or  their  solicitors  shall,  on 
firiT""'^^  ^^  demand  in  writing  by  or  on  behalf  of  any  defendant, 
Ord  7  declare  forthwith  the  names  and  places  of  residence  of 

R.  2,  E.  all  the  persons  constituting  the  firm  ;  and  if  the  plaintiffs 
or  their  solicitor  shall  fail  to  comply  with  such  demand, 
all  proceedings  in  the  action  may,  upon  an  application 
for  that  purpose,  be  sta\ed  u]3on  such  terms  as  the  Court 
or  a  Judge  may  direct.  And  when  tlie  names  of  the  part- 
ners are  so  declared,  the  action  shall  proceed  in  the  same 
manner  and  the  same  consequences  in  all  i-espects  shall 
follow  as  if  they  had  been  named  as  the  plaintiffs  in  the 
writ.  But  all  proceedings  shall,  nevertheless,  continue  in 
the  name  of  the  firm. 

As  to  actions  by  partners  see  also  Ord.  xv.,  R.  10,  hifra. 
Comparing  these  two  provisions  it  would  seem  that  a  defendant 
wishing  to  know  the  names  of  the  partners  should  make  a  de- 
mand in  writing  to  that  effect,  and  if  not  complied  with,  apply 
by  summons  to  a  judge  for  an  order  under  Ord.  xv.,  R.  10, 
which  will  probably  be  that  the  statement  be  furnishe(l  Avithin 
a  given  time,  and  that  all  proceedings  be  stayed  m  the  mean- 
time.    This  will  prevent  the  two  Rules  conflicting. 


Order  7. 

UULE  1. 

Renewals 
w.tliin  12 
months. 

Ord.  8. 
R.  1,  E, 


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  tliereof, 
including  the  day  of  such  date  ;  but  if  any  defendant 
therein  named  shall  not  have  Ijeen  served  therewith,  the 
])laintiff  may,  before  the  expiration  of  the  twelve  mouths, 
apply  to  a  Judge  for  leave  to  renew  the  writ  ;  and  the 
J  u<lge,  if  satisfied  tluit  reasonalde  efforts  have  been  made 
to  serve  such  defendant,  or  for  other  good  reason,  may 


DISCLOSURE   BY   SOLICITORS,  SzC.  513 

order  that  the  original  or  concurrent  writ  of  summons  he     Order?, 
renewed  for  six  months  from  the  date  of  such  renewal, 
and  so  from  time  to   time   during  the   currency  of  the 
renewed  writ.     And  the  writ  shall  in  such  case  be  renewed 
by  being  marked  with  a  seal  bearing  the  date  of  the  day,  Renewal 
month,  and  year  of  such  renewal ;  such  seal  to  be  pro-  ^'^^  • 
vided  and  kept  for  that  purpose  at  the  proper  office,  and 
to  be  impressed  upon  the  wiit  by  the  proper  officer,  ujjon 
delivery  to  him  by  the  plaintiff  or  his  solicitor  of  a  memo- 
randum in  Form  No.  5,  in  Appendix  A,  Part  I.  ;  and  a 
writ  of  summons  so  renewed  shall  remain  in  force  and  be 
available  to  prevent  the  operation  of  any  statute  whereby  g^tute  of 
the  time  for  the  commencement  of  the   action  may   be  Limita- 
limited,  and  for  all  other  purposes,  from  the  date  of  the  ^'°"'*' 
issuing  of  the  original  writ  of  summons. 

The  original  Writ  of  Summons  remains  in   force  for  the  Original 
purpose  of  service  for  one  entire  year,  including  the  day  of  writ  in 
issue,  ie.  if  issued  on  1st  day  of  January  in  any  year,  it  exjm-es  force, 
on  3 1  st  day  of  December  of  same  year.     But  notwithstanding 
this,  if  a  writ  be  served  after  it  is  twelve   months  old  and 
defendant  appears  to  it,  he  waives  the  in-egularity.(rf) 

Under  the  Com.  Law  Pro.  Act,  1853,  sec.  28,  a  wi-it  might  ■Rpne^yal 
be  renewed  as  of  course  and  without  leave  within  six  months  by  order, 
excejit  for  the  purpose  of  saving  the  bar  of  the  Statute  of 
Limitations. (e)  It  should  then,  as  now,  be  renewed  within  the 
period  when  it  was  still  in  force,  and  under  the  statute  Sundays 
or  holidays  intervening,  or  the  office  being  closed  on  the  last 
day,  did  not  extend  the  time  allowed. (/)  Under  this  Rule 
perhaps  if  the  last  day  for  application  should  he  a  holiday  the 
plaintiff  might  be  in  time  to  apply  on  the  foUowmg  day  under 
Ord.  Ivii.,  K.  3,  infra. 

"Where  the  original  writ  has  been  renewed  and  afterwards 
lost,  it  was  held  the  court  had  no  power  to  allow  a  copy  or 
duplicate  of  the  renewal  to  be  sealed  as  an  original.(g') 

^Vhere  the  original  writ  was  issued  and  dated  of  the  8th 
January,  and  amended  on  the  16th  February,  and  defendant 
was  not  served,  on  application  to  renew  it  on  1  ^th  February 
of  following  year,  it  was  held  the  twelve  months  must  be 
computed  from  the  date  of  the  writ  and  not  of  the  amendment, 
but  it  was  ordered  that  plaintiff  should  be  at  liberty  to  renew 
it  against  the  defendant  notwithstanding  this,  api)arently  under 
the  extending  power  given  by  Ord.  58,  Eng.  (Ord.  Ivii.,  R.  6, 
infr(i){h). 

((f)  See  Coates  v.  Sandy,  2  Scott,  N.  C.  525,  2  Man.  and  Gr.  olii. 

(e)  See  Dickson  v.  Capes,  1 1  Ir.  Com.  Law  Rep.,  334  Ex.  Such  a  writ 
may  still  be  renewed  without  an  order.     Anon.  20  Sol.  Jour.  32,  Lush,  J. 

(  /)  See  MuUin  v.  Bonjor,  5  Ir.  Com.  Law.  Rep  ,  475.  1  Ir.  Jur, 
126,  C.  P.  Fisher  v.  Cox,  16  Law  Times,  N.  S.  397 ;  Evans  v.  Jones, 
2  B.  and  S.  45. 

(S)  Davis  V.  Garland,  L.  R.,  1  Q.  B.  D.  250,  24  W.  R.  252. 

{h)  Eyre  v.  Cox,  25  W.  R.  303,  W.  N.  1«77,  38,  M.  R. 

z  3 


514 


SERVICE   OF    WRIT. 


Order 


Rule  2. 

Evidence  of 

renewal. 


AYhere  the  Statute  of  Limitations  had  run  meanwhile  it 
was  held  the  court  could  not  extend  the  time  for  renewal. (^) 

2.  The  pvoduction  of  a  writ  of  summons  purporting  to 
be  marked  with  the  seal  of  the  Court,  showing  the  same 
to  have  been  renewed  in  manner  aforesaid,  shall  be  suffi- 
cient evidence  of  its  having  been  so  renewed,  and  of  the 
commencement  of  the  action  as  of  the  first  date  of  such, 
renewed  writ  for  all  purposes. 


Order  8. 

Service  of 
writs  iu 
same 
manner 
as  procesa 
of  former 
courts. 


Service  for 
recovery 
ot  laud. 


ECLE  1. 

Accepting 
Bcrvice. 

Ord.  9, 
R.  1,  E. 


Order  VIII. 

Service  of  Writ  of  Summons. 
Schedule  Rule  10. 
"  Except  as  otherwise  provided  by  this  Act,  all 
writs  of  summons  shall  be  served  in  the  same  manner 
respectively  as  process  from  the  Court  whose  jurisdiction 
is  transferred  to  the  High  Court  might  have  been  served 
if  this  Act  had  not  been  passed,  and  the  High  Court 
shall  have  the  same  power  of  directing  substitution  of 
service  or  that  any  service  already  made  should  be  deemed 
good,  or  that  notice  should  be  substituted  for  service,  as 
might  liave  been  exercised  by  the  said  Courts  respectively, 
if  this  Act  had  not  been  passed." 

Schedule  Rule  11, 
"  Service  of  a  writ  of  svimmons  to  recover  possession 
of  land  may  be  made  iu  the  same  manner  as  a  writ  of 
summons  and  plaint  in  ejectment  might  have  been  served 
if  this  Act  had  not  been  passed." 


Rules  of  Court. 

1.  No  service  of  a  writ  shall  be  required  when  the 
defendant,  by  his  solicitor,  agrees  to  accept  sex'vice,  and 
enters  an  appearance. 

The  solicitor  who  agrees  to  accejit  service  If  he  also  under- 
takes in  writing  to  enter  an  appearance,  and  fails  to  do  so, 
renders  himself  liable  to  an  attachment  under  Ord,  xi.,  R.  6, 
infra.  And  in  one  case  where  a  defendant  undertook  to 
accept  service  the  Court  allowed  judgment  to  be  signed  on 
default  without  more.(/<) 

As  to  mode  of  personal  service  of  the  writ,  see  Chapter  xlvii., 
p.  3(i0,  ante. 

As  to  affidavit  of  service  to  sign  judgment  for  default  of 
appearance,  see  Ord.  xii.,  R.  2,  infra. 

(v)  Doyle  V.  Kaufman,  L.  K.,  3  Q.  B.  I).  7,  2G  W.  R.  98. 
(ji)  Hall  V.  Khyud,  8  Ir.  (.'om.  Law  Rep.,Ai.ip.  4,  Q.  B. 


SUBSTITUTION   OF  SERVICE.  515 

2.  The  person  serving  a  writ  of  summons  sliall,  within     Order  8. 
three  days  at  most  after  S'.ich  service,  indorse  on  the  writ     Bule  2. 
the  day  of  the  month  and  week  of  the  service  thereof,  indorse- 
otherwise  the  plaintiff"  shall  not  he  at  liberty,  in  case  of  n}ent  of 
non-appearance,  to  proceed  by  default ;  and  every  affidavit  .sen-Ice. 
of  service  of  such  writ  shall  mention  the  day  on  which  q^.^  ^ 
such  indorsement  was  made,  and  in  case  of  service  upon  R.  13,  E 
any  individual  shall  state  that  the  deponent  was  at  the 
time  of  service  acquainted  with  the  person  of  the  party 
so  served. 

This  is  similar  to  the  provision  in  the  Com.  Law  Pro.  Act, 
1853,  s.  31. 

This  indorsement  seems  to  be  necessary  only  in  the  case  of 
service  not  substituted  or  deemed  good  by  order  of  the 
Court, (z)  although  Sir  Geo.  Jessel  held  otherwise. (A;) 

The  affidavit  of  service  ought  to  show  that  this  indorsement 
was  made  in  due  time  as  rtH|uired.(Z)  Where  the  indorse- 
ment has  been  made  in  due  time,  but  with  a  wrong  date 
inserted  in  the  memorandum,  the  Court  has  allowed  it  to  be 
amended,  (m)  but  it  vnW  probably  be  slow  to  do  so.(?i) 

Where  the  non-compliance  with  this  rule  is  occasioned  by 
the  wrongful  act  of  the  defendant,  the  Court  has  allowed  a 
duplicate  to  be  issued  and  judgment  signed. (o) 

As  to  deponent's  swearing  to  his  acquaintance  with  the 
person  of  the  party  served,  see  9  G.  O.,  1854  (Com.  Law.) 

3.   Whenever  an  order  shall  be  made  by  the  Court  or     Rule  3. 
a  Judge  to  substitute  sei'vice,  or  to  serve  a  party  ])erson-  •'Serving 
ally  out  of  the  jurisdiction,  a  copy  of  the  order  directing  '^^^^  order, 
such  mode  of  service  shall  be  served  along  with  the  writ. 


Order  IX. 
Substituted  Service.  Order  9. 

Every  application  to  the  Court  or  a  Judge  for  an  order  Affidavit  to 
for  substituted  or  other  service,  or  for  the  substitution  of  ^'"""'^'^  • 
notice  for  service,  or  that  any  service  already  made  shall 
be  deemed  good  service,  shall  be  supported  by  an  affidavit 

(i)  Cruse  v.  Kuttingall,  W.  N.,  1875,  250 ;  20  Sol.  Jour.  141, 
Huddleston,B.;  Uymonds  v.  Croft.  L.  E.,  3  Chan.  D.  512,  24  W.  R., 
842,  A.  C. 

(k)  Dymonds  v.  Croft,  W.  N.  1876,  193,  24  W.  R.  818 ;  20  Sol. 
Jour.  GG3,  M.  R. ;  and  see  Rogers  v.  Burke,  'J  Ir.  Com.  Law  Rep., 
App.  34,  Q.  B. 

(0  See  Vandeleur  v.  Smith,  3  Jr.  Com.  Law  Rep.,  86  Q.  B.  ;  and 
Studderti;.  Leary,  7  Ir.  L.  R.  643,  Q.  B. 

(in)  Kvne  v.  Murphy,  Ir.  Rep.,  2  Com.  Law  35,  Con.  Ch. 

(n)  Goffv.  Finlau,  6  Ir.  Jur.  N.  S.  41,  Ex. 

(o)  Brunton  v.  Doyle,  Ir.  Rep.,  2  Com.  Law,  86  Ex- 


516  SUBSTITUTION   OF   SERVICE. 

Ordevd.     setting  forth  tlie  grounds  upon  whicli  tlie  application  is 
made. 

As  to  substitution  of  service,  see  Chapter  xlvii.,  aiile,  p. 
301,  Com.  Law  Pro.  Act,  1853,  s.  34. 

The  affidavit  should  show  there  is  a  probability  of  the 
service  already  made  or  proposed  to  be  made  coming  to  the 
knowledge  of  the  defendant,  and  that  the  person  proposed 
to   be  served  has  means  of  communication  with  him.(/)) 

In  England  where  a  defendant  absconds  and  has  not  been 
heard  of  for  some  time,  ex.  gr  ,  three  months,  the  Courts  have 
substituted  notice  by  advertisement  in  the  Gazette,  Times 
newspaper,  and  some  one  other  morninfr  paper,  and  a  letter  to 
defendant's  club  and  former  solicitor.  (7) 

As  to  whether  service  on  one  partner  for  another  is  good 
under  Bills  of  P^xchange  Act,  see  cases  in  note.(r) 

Service  on  a  husband  for  his  wife  was  good  service,  both  at 
law  and  in  equity,  in  ordinary  cases,  and  where  they  were 
living  together ;  but  not  so  when  living  apart.  (5) 

Service  on  an  infant  was  effected  both  at  law  and  in  equity 
in  the  same  manner  as  upon  an  adult,  but  in  order  to  take 
advantage  of  his  non-appearance  a  guardian  ud  litem  should  be 
first  appointed.     This  practice  is  retained.  (^) 

Idiots  and  lunatics  were  also  served  as  ordinary  persons, 
and  the  process  server  should  demand  access  to  the  lunatic  at 
an  asylum  to  make  a  case  for  substitution  of  service. (7/) 

Service  on  a  Corporation  aggregate  was  regulated  chiefly  by 
Com.  Law  Pro.  Act,  1833.(u)  Service  on  one  of  the  directors 
is  not  good  either  vmder  the  Statute  or  at  Common  Law.  It 
should  (if  there  be  no  public  officer),  either  be  made  on  all 
the  directors,  or  proof  given  of  reasonable  eflTorts  to  do  so.(?«) 
A  foreign  Corporation  having  a  place  of  business,  and  trading 
in  Ireland,  may  be  served  by  its  chief  officer  in  Ireland  being 
for  this  purpose  a  head  officer.(ar)     But  a  foreign  Corporation 


Q))  See  Cook  v.  Dey,  J..  R.,  2  Ch.  D.  218,  24  W.  R.  3G2 ;  20  Sol. 
Jour.  312,  V.  C.  H.     Miller  i\  O'Brien,  1  Ir.  J-ir.,  N.  S.,  109,Perriii,J. 

(y)  See  Raphael  v.  Oiiglev,  20  Sol.  Jour.  312,  W.  R. ;  Cook  v.  Dey, 
snpni ;  Crane  v.  Jullion.  L.  R.,  2  Ch.  D.,  220,  24  W.  R.  691,  V.  C.  H. ; 
Whitley  v.  Honeywell,  24  W.  R.,  851 ;  20  Sol.  Jour.  G64,  Prob.  D. ; 
Rank  of  Whitehaven  v.  Thompson,  W.  N.,  1877,  45;  21  Sol.  Jour,  278, 
V.  C.  H. 

(r)  Offer  v.  Bradnum,  L.  R.,  1  C.  P.  D.  334,  Contra  ;  Anon.  W.  N., 
1875,  248;  Pollock  v.  Campbell,  L.  R.,  1  Ex.  D.  50. 

(s)  See  Ord.  9,  R.  3,  E.  ;  Whitley  ».  Honeywell,  24  W.  R.,   851. 

(Jt)  Ord.  xii.,  R.  1,  infra. 

(zi)  See  Maguire  v.  Gardiner,  4.  Ir.  L.  R  ,  310,  C.  P  ;  Anon.  4  Ir.  L.  R. 
275,  Q.  B. ;  Dawson  v.  La  Capelani,  7  Ex.  CG7  ;  In  Ciiancery,  see  Crab- 
tree's  Estate,  L.  R.  10,  Chan    203.     See  English  Ord.  9,  R.  5. 

(v)  S.  33;  see  Ferg.  C.  L.Pro.,  51-2. 

(w)  Lawrenson  w.  Dublin  Metropolitan  Junction  R.  C,  W.  N.  1877, 
14!)  A.  C. ;  see  English  Ord.  9,  R.  7. 

::.•)  Newby  v.  Opjien,  L.  R.,  7  Q.  B.  293;  Carrou  Iron  Compy.  v. 
Maclaren,  5  H.  L.  459. 


SERVICE   OUT   OF   THE  JURISDICTIOX. 


517 


non-resident  within  tlie  jurisdiction  cannot  be  so  served,  (ij)     As     Order  9. 
to  railway  companies,  see  cases  in  note.(:r) 

After  a  company  has  been  dissolved  the  statutable  mode  of 
service  will  be  inapplicable, (a)  but  not  so  where  its  business 
has  ceased  without  formal  dissolution.  (J) 

A  Gazette  notice  is  not  necessary  when  service  is  substituted 
by  an  order  silent  on  the  subject,  (c) 

On  Peers  and  Members  of  Parliament  ordinary  service  is 
sufficient,  and  semhle  the  letters  missive  in  Chancery  actions 
are  dispensed  with. 

Service  in  ejectment,  whether  on  the  title  or  for  non-pav- 
ment  of  rent,  would  seem  still  to  be  regulated  by  the 
Landlord  and  Tenant  Act,  1 860,  s.  56,  and  when  possession  is 
vacant  by  s.  57. (d) 

On  a  Colonial  Govei-nment  (ex.  gr.,  New  Zealand),  see 
note.(e) 

Application  for  substitution  of  service  under  the  Com.  Law 
Pro.  Act  should  not  be  made  until  after  the  period  allowed  for 
appearance  had  expired,  as  defendant  might  come  in  on  the 
service  already  attempted.  (/") 

"When  an  order  for  substituted  service  is  made,  it  must  be 
strictly  comjilied  with.(g-) 


Order  X. 
Service  out  of  the  Jurisdiction.  Order  10. 

I.  Service  out  of  the  jurisdiction  of  a  writ  of  summous,    Kule  i. 
or  notice  of  a  writ  of  summons,  whether  on  a  defendant  wiien 
to  the  action  or  a  third  party  ordered  to  be  served,  may  '^'^^^'^'^l 
he  allowed  by  the  Court  or  a  Judge  whenever  the  whofe  out  o7''' 
or  any  part  of  the  subject-matter  of  the  action  is  land  or  J^^ris- 
stock,  or  other  property  situate  within  the  jurisdiction,  or  ''"^*^'°"- 
any  act,  deed,  will,  or  thing  affecting  such  land,  stock,  or  ^'^{  ^ 

Q/)  Westman  v.  Aktie  Bolaget  Eckmans,  L.  E.,  1  Ex.  D.,  239  ;  24 
W.  K.  405 ;  20  Sol.  Jour.  352,  1 ;  Ingate  v.  Lloyd  Austriau  Cv.,  4  C.  B., 
N.  S.  704. 

(2)  M'Xamara  v.  Waterford  and  Limerick  Ry.  Cy.,  1  Ir.  Jur.,  N.  S. 
125,  C.  F;  Moore  v.  Belfast  and  Ballymena  Ry.  Cy.,  6  Ir.  Com.  Law- 
Rep.  441,  Q.  B. 

(a)  Favle  v.  Kingstown  Waterworks  Ci-.,  14  Ir.  Com.  Law  Rep. 
App.  10,  7  Ir.  Jur.,  N.  S.  397,  Q.  B.  ' 

(/>)  Gaskell  v.  Chambers,  26  Beav.  252. 

(c)  Mape  V.  London  and  Xorth  Western  Ry.  Cv.,  L.  R.,  1  Ex 
563. 

{d)  See  also  Shaw  v.  Warmington,  Ir.  Rep.,  3  C.  L.  99,  Con.  Cham.; 
and  see  Anon.  Sol.  Jour.  33,  Lush,  J.,  as  to  order  before  signing  judg- 
ment by  default. 

(e)  Sloman  v.  Governor  of  New  Zealand,  L.  R.,  1  C.  P.  D.  563  '>5 
•W.  R.  86;  20  Sol.  Jour.  802,  A.  C. 

(/)  Carter  v.  Dunne,  7  Ir.  Jur.,  K  S.  45,  Ex.;  but  see  Xolan  v. 
Fitzgerald,  10  Ir.  L.  R.  79,  C.  P. 

(J/)  Xolau  V.  Fitzgerald,  2  Ir.  Com.  Law  Rep.,  79,  C.  P. 


518 


SERVICE   OUT   OF  THE   JURISDICTION. 


Rule  1. 


Order  10.  property,  and  whenever  the  contract  wliich  is  sought  to 
he  enforced  or  rescinded,  dissolved,  annulled,  or  otherwise 
affected  in  any  such  action,  or  for  the  breach  whereof 
damages  or  other  relief  are  or  is  demanded  in  such  action, 
was  made  or  entered  into  within  the  jurisdiction,  and 
whenever  there  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  jurisdiction. 

This  Rule  defines  the  class  of  cases  in  which  service  out  of 
the  jurisdiction  may  be  allowed  by  the  High  Court. 

As  regards  Chancery  actions  it  seems  in  some  degi'ee  restric- 
tive of  the  bi'oad  sjihere  of  jurisdiction  assumed  in  Drummond 
V.  Drummond,  (A)  to  direct  service  in  any  suit  whatever,  and 
it  rather  brings  us  back  to  the  principles  embodied  in  the 
earlier  Statutes,  2  &  3  Wm.  IV.,  c.  33,  s.  1,  and  4  &  5  Wm. 
IV.,  c.  82,  s.  1,  in  which  the  subject-matter  of  the  suit  was 
local,  ex.  gr.,  land  or  stock,  but  extending  it  to  other  prof)erty 
situate  within  the  jurisdiction.  The  jurisdiction  in  Common 
Law  actions  in  Ireland  rested  on  the  Com.  Law  Pro.  Act, 
1853,  s.  34,  and  required  that  "the  cause  of  action  arose 
within  the  jurisdiction"  and  did  not  warrant  actual  service  out 
of  Ireland,  but  merely  substitution  of  service  through  the 
post  office,  or  service  on  an  agent  in  Ireland. 

As  regards  the  "  cause  of  action  arising"  the  result  of  the 
authorities  was,  that  as  regards  contracts  it  was   enough  if 
either  the  contract  was  made  within  the  jurisdiction  or  the 
breach  occurred  there,  (i) 
Laadsaud        The  pi'csent  rule  adopts  the  same  principles  in  regard  ti> 
stock.  land  or  stock  or  other  property  situate  within  the  jiirisdiction,  if 

the  action  be  wholly  or  in  part  in  relation  to  it,  or  for  any  act, 
deed,  will,  or  thing  affecting  it,  service  may  be  had  out  of  the 
jurisdiction.  (^) 

An  action  brought  in  England  for  slander  of  title  of  a  vessel 
in  England,  the  defendant  being  resident  in  Ireland,  was  held 
not  to  deal  with  property  in  England. (Z) 
Contracts.  As  to  contracts  the  present  rule  adopts  the  same  principle, 
and  if  the  contract  sought  to  be  enforced,  rescinded,  dissolved, 
annulled,  or  otlierwise  affected  by  the  action,  or  damages  or 
other  relief  are  sought  for  its  breach,  be   made  or  entered 


(h)  Drummond  v.  Drummond,  L.  R.,  2  Eq.  335  ;  2  Chan.  32. 

(j)  Vaughan  v.  Wilson,  L.  R.,  10  C.  P.  47;  adopting  Jackson  v. 
Spittal.L.  K.,  5  C.  P.  542  ;  in  Ireland  see  Kelly  v.  Di.Kon,  Jr.  Rep.,  6 
C.  I..,  25  Q.  13.  ;  Macken  v.  Ellis,  Ir.  Kep.,  8  C.  L.  151  Q.  B. 

(k)  See  Einlay  v.  Barton,  Ir.  Rep.,  1  Eq.  61,  M.  R. ;  and  see  as  to 
Administration  Summons,  Newlandr.  Arthur,  Ir.  Rep.  2  Eq.  277  M.  R.  ; 
as  to  foreclosure  of  a  Mortgage  of  lands  abroad,  .see  Paget  v.  Ede,L.  R., 
18  Eq.,  118  V.  C.  15. 

«.  Casey  i;.  Aruott,  L.  R.,  2  C.  P.  D.  24 ;  25  W.  R.  4G;  21  Sol. 
Jour.  29. 


SERVICE   OUT   OF   THE  JURISDICTIOX.  519 

into  -svithin  the  junsdiction,(m)  service  may  be  had  out  of  the  Order  10. 
jurisdiction;  so  likewise,  if  the  contract  was  one  whei-ever  jj^^^i 
made,  of  which  there  has  been  a  breach  within  the  juris- 
diction. Where  it  is  contracted  to  send  money  to  a  phiintiflf  in 
Irehmd  and  it  is  not  sent,  there  is  a  breach  in  Ireland, (w) 
although  the  rule  says  nothing  about  the  place  of  perform- 
ance.(o)  Of  a  contract  to  convey  plaintiff"  and  his  luggage  from 
Chester  to  Dublin,  the  breach  alleged  was  a  refusal  to  provide 
conveyance  at  Holyhead  from  railway  to  steamboat  and  a 
detainer  of  luggage  at  Dublin,  and  it  was  held  there  was  a 
breach  in  Ireland,  (/j) 

As  to  Torts  where  the  wrongful  act  sought  to  be  restrained  Torts,  ^ 
or  removed  or  to  be  punished  by  damages,  was  or  is  to  be 
done  or  is  situate  in  Ireland,  service  may  be  had  out  of  the 
jurisdiction. 

Any  British  subject  may  now  be  served  abroad  for  acts 
alleged  to  be  done  within  the  jurisdiction,  ex.  gr.,  for  making 
false  representations  as  to  property. (ly)  But  the  rule  does  not 
give  jjower  to  serve  a  foreigner  resident  abroad,  in  an  action 
although  in  personam,  resultnig  from  collision  of  shijjs  out  of 
the  territorial  jurisdiction  of  the  High  Court(?-)  or  on  the  High 
Seas.(.v) 

Several  causes  of  action  included  ui  the  same  writ  and  some  Several 
within  the  jurisdiction  and  others  not,  it  seems  tlie  court  can  causes, 
make  no  order  unless  the  latter  are  struck  out  of  the  summons 
and  indorsement.  (^) 

Under  the  general  terms  of  the  J.  Acts  and  Orders,  Irish  Service  in 
process  may  be  served  in  England  and  Scotland,  and  vice  versa,  England 
English  process  in  Ireland.  "  C.  J.  Cockburn  expressed  it  to  f^nd^ami 
be  a  hard  rule  that  compelled  a  defendant  to  spend  ^'50  in  vice  versd 
coming  to  London  to  defend  an  action  for  £20. (tt)     To  allay  in  Ireland, 
the  dissatisfaction    expressed   in   Ireland   (especially   by  the 
legal  and  mercantile  classes)  in  regard  to  the  inconvenience  of 

(?»)  Under  the  Common  Law  Pro.  Act,  see  Kett  v.  Robinson,  4  Ir. 
Com.  Law  R.  186;  Frew  v.  Stone,  6  Ir.  Jur.  2G7,  C.  P;  Macken  i\ 
Ellis,  Ir.  Rep.  8  C.  L.  151,  Q.  B. 

(ji)  Preston  v.  Lament,  L.  R.  1,  Ex.  D.  361,  24  W.  R.  928,  S.  C.^ 
W.  N.  1876,  24;  20  Sol.  Jour.  241,  Lindley,  J.;  Swansea  Shipping 
Co.  V.  Duncan,  L.  R.,  1  Q.  B.  D.  644.  25  W.  R.  233. 

(o^  See  Anon.  W.  X.  1875,  199,  Lush,  J. 

( p)  Kesbey  v.  Holyhead  Ry.  Co.,  6  Ir.  Com.  Law  R.  393,  2  Ir. 
Jur.  N.  S.  330,  C.  P.  ;  see  also  Powell  v.  Atlantic  Steam  Navigation 
Co.,  10  Ir.  Com.  Law  R.,  App.  47.  Ex.;  Adams  v.  Davison,  6  Ir. 
Jur.  N.  S.  390,  Ex. ;  Watson  v.  Atlantic  Steam  Navigation,  5  Ir.  Jur. 
N.  S.  217,  Ex.  ;  Aston  v.  North  Western  Ry.  Co.,  Ir.  Rep.,  I.  C.  L. 
604;  Deans  v.  Sandford,  Ir.  Pep.,  9  C.  L.  228,  Q.  B.;  Betham  v. 
Fernie,  4  Ir.  Com.  Law  R.  92. 

(<7)  Great  Australian  Mining  Co.  v.  Martin,  W.  K,  1876,  281  V.  C. 
M.  S.  C,  W.  N.,  1877,  27  A.  C. 

(r)  See  Li  re  Smith,  24  W^  R.  903,  Prob. 

is)  Harris  v.  Franconia,  Owners  of,  L.  R.  2,  C.  P.  D.  173, 

(/;  See  Whvte  v.  Hill,  9  Ir.  Jur.  N.  S.,  288,  Q.  B. 

(»')  See  Green  v.  Browning,  W.  N.,  187G,  190,  20  Sol.  Jour.  604, 
Q.  B.  D. 


520 


SERVICE   OUT   OF   THE  JURISDICTION. 


Order  10. 
Rule  1. 


Service  out 
of  juris- 
diction. 


Foreigners 

living 

abroad. 


In 

matters. 


witliilrawing  litigation  concerning  causes  of  action  arising 
chiefly  in  Ireland,  from  J^ublin  to  I.ondon,  the  English 
Judges  introduced  a  rule  which  has  been  copied  into  J.  A., 
187?',  s.  33,  to  the  effect  following  : — 

"  Whenever  application  shall  be  made  for  leave  to  serve 
anv  document  by  which  a  cause  may  be  commenced,  upon  a 
defendant  resident  out  of  the  jurisdiction  of  the  Supreme 
Court,  whether  by  serving  such  defendant  personally  or  by 
substituting  service  upon  another  person  for  him,  the  Court 
or  Judge  to  whom  such  application  shall  be  made,  shall  have 
regard ''to  the  amount  or  value  of  the  claim  or  property 
affected,  and  to  the  comparative  cost  and  convenience  of  pro- 
ceeding's in  Ireland,  or  as  the  place  of  the  defendant's  residence  ; 
and  no^uch  leave  shall  be  granted  without  an  affidavit  stating 
the  particulars  necessary  for  enabling  the  Court  or  Judge  to 
exercise  a  due  discretion  in  the  manner  aforesaid."(«) 

It  has  therefore  become  a  consideration  of  comparative 
convenience,  how  far  the  High  Court  will  exercise  its  jurisdic- 
tion so  as  to  assist  an  action  brought  against  a  defendant 
resident  in  England  or  Scotland,  (ry) 

Where  the  action  was  substantially  to  set  aside  a  Scotch 
settlement  made  by  persons  in  Scotland  and  requiring  the  aid 
of  Scotch  advocates  to  enable  the  Court  to  decide  the  ques- 
tion, it  was  held  in  England  that  the  balance  of  convenience 
was  against  a  trial  in  England. (w)  In  an  action  brought  in 
England  against  a  defendant  in  Ireland  for  slander  of  title 
in  stating  plaintiff's  ship,  then  in  an  English  harbour,  was 
unseaworthy,  an  order  for  service  in  Ireland  was  refused. (a:) 
The  practice  in  England  was,  to  avoid  international  diffi- 
culties, instead  of  serving  a  copy  of  the  writ  on  foreigners  in 
their  own  country,  to  serve  only  a  notice  of  the  writ,  in  form 
given  in  Appendix  A,  Part  1,  No.  4,  informing  the  defendant 
that  plaintiff  has(2/)  commenced  an  action  against  him,  and  re- 
quiring him  to  appear,  and  that  in  delault  plaintiff  may  proceed 
to  judgment  in  his  absence.  It  is  presumed  that  the  notice 
mentioned  in  Rule  4,  infra,  is  intended  to  be  of  this  nature. 

A  foreio-n  corporation  served  abroad  should  be  served  with 
this  notice  and  not  with  a  copy  of  the  writ.(z) 

Courts  of  Equity  made  orders  of  service  in  certain  matters 
arising  out  of  their  statutable  jurisdiction,  ex.  gr.  under 
the   Trustee     Relief    Act,(o)     under   the   Acts   for    making 


(y)  J.  A.,  1877,  s.  33 ;  and  see  New  English  Order  to  like  effect, 
Ord.  11,  R.  1,  A. 

(vv)  See  a  case  of  Brunton  v.  Robertson,  Ir.  Rep.,  10  C.  L.  iJo, 
Fitzgerald,  J. 

(w)  iMackenzie  v.  Shepherd,  21  Sol.  Jour.  339,  V.  C.  H. 

(x)  Casev  V.  Arnott,  L.  R.,  2  C.  P.  D.  24 ;  25  W.  R.  4G. 

(y)  See  iieddiugton  v.  Beddington,  24  W,  R.  348,  W.  N.  73 ;  20 
Sol'.  Jour.  203.  _,    „. 

(s)  See  Scott  v.  Royal  Wax  Candle  Co.,  L.  R.,  1  Q.  B.  D.  404,  24 
W.  K.  GG8  ;  20  Sol.  Jour.  4(J9,  A.  C.  Acktie  v.  Solaget  Eckmans, 
L.  R.  1  Ex.  D.  237  ;  20  Sol.  Jour.  352 

(«)  In  re  Ilaney's  Trusts ;  L.  R.  10  Ch.  275,  23  W.  R.  G02  ;  L.  J.  J. 


SEEVICE   OUT  OF  THE  JURISDICTION.  521 

charging  orders,  (J)  and  under  the  Companies  Act  by  virtue  of    Order  10. 
this  rule,(c)  and  orders  by  way  of  substitution  of  service  (rf)  j^        j 

Objections  to  an  order  for  service  out  of  the  jurisdiction 
cannot  be  raised  by  way  of  plea  or  defence  to  the  action,  but 
by  appeal  from  the  order  of  the  Judge  allowing  it.(e) 

2.  Every  application  for  an  order  for  leave  to  serve    Rule  2. 
such  writ  or  notice  on  a  defendant  out  of  the  jurisdiction  Appii- 
shall  be  supported  by  evidence,  by  affidavit,  or  otherwise,  catio'i  to 
showing  in  what  place  or  country  svich  defendant  is  or  British 
]jrobably  may  be  found,  and  whether  such  defendant  is  a  subject. 
British  subject  or  not,  and  the  grounds  upon  which  the  O^ii.  2, 
application  is  made. 

The  application  to  serve  out  of  the  jurisdiction  may  be  made 
at  the  time  of  apph-ing  for  liberty  to  issue  the  writ  for  service 
out  of  the  jurisdiction,  and  one  order  may  be  made  for  both  ( f) 

As  to  the  affidavit,  it  is  similar  to  that  required  in  Chancery 
practice  by  the  30th  General  Order,  Act  31,  1867. 

It  should  show  in  distinct  terms  in  what  manner  the  Court 
has  jurisdiction  to  order  the  service,  and  it  should  be  made 
by  some  person  able  to  depose  to  the  facts,  and  stating  what 
the  cause  of  action  is.{g) 

3.  Any  order  giving  leave  to  effect  such  service  or  give    Rule  3. 
such  notice  shall  limit  a  time  after  such  service  or  notice  Time  for 
within  which  such  defendant  is  to  enter  an  appeai-ance,  service, 
such  time  to  depend  on  the  place  or  country  whei^e  or  ^"^'^'i'' 
within  which  the  writ  is  to  be  served  or  the  notice  given. 

Where  defendant  was  a  British  subject  resident  at  Lucerne, 
and  had  entered  a  caveat  in  a  Probate  action,  a  fortnight's 
time  was  allowed  for  ap25earance.(/i) 

4.  Notice  in  lieu  of  service  shall  be  given  in  the  manner    Rule  4. 
in  which  writs  of  summons  are  served.  Notice  in 

lieu  of 
As  to  what  cases  a  notice  is  proper,  see  above  Rule   1,  ^^'■^''*^^- 
Foreigners.  Ord.  11, 
^ R.  5E. 

(i)  In  re  Gethin,  ]Mi.  Ir.  Rep..  9  Eq.  512,  V.  C,  sed  vide  Ex  parte 
Bernard,  6  Ir.  Chan.  Rep.  133 ;  Wheelhouse  v.  Sharpe,  9  Ir.  Law  Rep. 
154. 

(c)  In  re  British  Imperial  Corporation,  L.  R.  5  Chan.  D.  749,  25 
\V.  R.  583. 

(d)  Bonelli's  Electric  Telegraph  Co.,    L.  R.    18  Eq.  655,    V.  C.  B. 
^  Preston  v.  Lamont,  L.  R.  1  Ex.  D.  361 ;  24  W.  R.  028. 

(  f )  See  In  re  Goods  of  Chamberlavne,  20  Sol.  Jour.  373  Pro. 

{g)  Anon.  W.  N.  1875,  199  &  202  Lush  J. ;  .see  Great  Australian 
Mining  Co.  v.  Martin,  L.  R.,  5  Ch.  D.  1  ;  25  W.  R.  246,  A.  C.  a  con- 
flict of  opinion  as  to  sufficiency  of  affidavit. 

(h)  See  In  re  Goods  of  Chamberlayue,  20  Sol.  Jour.  373,  Prob. 


[     522     ] 


Order  11. 


Defendant 
bound  to 
appear. 


Appear- 
ances, how 
entered. 

Ord.  12, 
Iv.  a  (a),  E. 


Ord.  12, 
11.  7,  E. 


Ord.  12, 
li.  8,  E. 


Address, 
wanting  or 
illusory. 

Ord.  12, 
R.  y,  E. 


Entry  of 
appear- 
ances in 
cause  book. 
Ord.  12, 
K.  10,  E. 

Appear- 
ances to 
summons 
lor  re- 
covery of 
land. 
Ord.  12, 
11.  18,  E. 

Appcar- 
anei/  a.-! 
landlord. 
Ord.  12, 
K.  19,  E. 


Order  XI. 

Appearance. 

Schedule  Rule  13. 

"Tlie  defendant  shall  be  bound  to  appear  to  the 
writ  of  summons  at  such  time  and  in  such  manner  as 
may  be  dii"ected  by  rules." 

Schedule  Rule  14. 

"  It  shall  not  be  necessary  for  the  defendant  on 
entering  an  appearance  to  any  writ  of  summons  to  file  any 
defence  or  answer  thereto.  He  shall  enter  an  appearance 
by  delivering  to  the  propOT  officer  a  memorandum  in 
writing,  dated  on  the  day  of  delivering  the  same,  and 
containing  the  name  of  the  defendant's  solicitor,  or  stating 
that  the  defendant  defends  in  person.  The  solicitoi-  of  a 
defendant  appearing  by  a  solicitor  shall  state,  in  such 
memorandum,  his  registered  residence. 

"  A  defendant  ap}iearing  in  person  shall  state  in  such 
memorandum  his  address,  and  a  place  to  be  called  his 
addi'ess  for  service,  which  shall  be  in  Ireland." 

Schedule  Rule  15. 

"  If  the  memorandum  does  not  contain  such  address 
it  shall  not  be  received  ;  and  if  any  such  address  shall  be 
illusory  or  fictitious,  the  appearance  may  be  set  aside 
by  the  Court  or  a  Judge,  on  the  application  of  the 
plaintiff." 

Schedule  Rule  16. 

"  Upon  receipt  of  a  memorandum  of  appearance,  the 
officer  shall  forthwith  enter  the  appearance  in  the  cause 
book." 

Schedule  Rule  17. 

"  Any  person  not  named  as  a  defendant  in  a  writ  of 
summons  for  the  recovery  of  land  may,  by  leave  of  the 
Court  or  Judge,  appear  and  defend  on  filing  an  affidavit, 
showing  that  he  is  in  possession  of  the  land  either  by 
himself  or  his  tenant." 

Schedule  Rule  18. 

"  Any  person  appearing  to  defend  an  action  for  the 
recovery  of  land  as  landlord,  in  respect  of  property 
whereof  he  is  in  possession  only  by  his  ti-nant,  shall  state 
in  his  appearance  that  he  aj^pears  as  landlord." 


APPEARANCE.  523 

KuLES  OF  Court.  .  ,  ,, 

Order  11. 

1.  The  defendant  on  entering  an  appearance  sliall  on       

the  same  day  give  notice  of  his  appearance  to  the  phxintift''s  Rule  i. 
solicitor  in  actions  assigned  to  the  Chancery  Division  by  Notice  of. 
notice  served  through  the  notice  office  of  that  division  ; 

and  in  actions  assigned  to  the  Queen's  Bench,  Common 
Pleas,  and  Exchequer  Divisions,  by  notice  in  writing, 
served  as  notices  are  now  served  in  the  Covirts  of  Common 
Law,  at  his  registered  residence  in  Dublin.  If  the  plain- 
titf  sues  in  person,  the  notice  is  to  be  served  at  his  address 
for  service. 

As  to  appearance  generally,  see  chapter  xl\4ii.,  p.  363,  ante. 

A  defendant  is  bound  to  appear  within  eight  days  after  tbe 
service  of  the  writ,  inclusive  of  the  day  of  service,  or  at  such 
other  ])eriod  as  may  be  mentioned  in  the  writ,  by  entering  a 
memorandum  (see  Rule  2)  in  the  proper  office,  i.e.,  the  Record 
and  Writ  Office  for  the  Chancery  Division,  and  the  Pleadings 
Assistant  of  each  of  the  other  Divisions  to  which  the  action  may 
be  assigned. 

As  to  appearance  and  defence  by  an  Infant  or  person  non 
compos  mentis,  see  Ord.  xvii.,  infra. 

2.  The  memorandum  of  appearance  shall  be  in  the  Form  Rule  2. 
No.  6,  Appendix  (A),  Pai-t  I.,  with  such  variations  as  Memorau 
the  circumstances  of  the  case  may  require,  and  shall  be 

•    '  •        Ord  12 

delivered  to  the  proper  officer  of  the  division  to  which  ^^  {q  £^ 
the  action  is  attached. 

3.  Where  partners  are  sued  in  the  name  of  their  firm,     Kule  3. 
they  shall  appear  individually  in  their  own  names.      But  ^^j..^g^ 
all  sidjsequent  proceedings  shall,  nevertheless,  continue  in     .^^  _^,, 
the  name  of  the  firm.  ii.  4,  e! 

4.  Where  any  person  carrying  on  business  in  the  name     Rule  4. 
of  a  firm  apparently  consisting  of  moi'e  than  one  person  ^y  »  ^i"™- 
shall  be  sued  in  the  name  of  the  firm,  he  shall  appear  in  Ord.  12, 
his  own  name,  but  all  subsequent  proceedings  shall  never-     "     ' 
theless  continue  in  the  name  of  the  firm. 

5.  If  two  or  more  defendants  in  the  same  action  shall     Rule  r>. 
appear  by  the  same  solicitor  and  at  the  same  time,  the  byWme 
names  of  all  the  defendants  so  appearing  shall  be  inserted  solicitor, 
m  one  memorandum,  r  13  E 

6.  A  solicitor  not  entering  an  appearance  in  pursuance  Rule  q. 
of  his  written  rinderfcaking  so  to   do  on  behalf  of  anv  Under- 

t^Kin^  to 

defendant  shall  be  liable  to  an  attachment.  appear, 

breach  of. 


.24 


APPEARANCE. 


Order  11. 


Rule  7. 

Appear- 
ance after 
time 
limited. 

Ord.  12, 
11.  15,  E. 


Rule  8. 

Appear- 
ance lU 
ejectment 
by  leave. 

Ord.  12, 
R.  20,  E. 


Rule  9. 

Limited 
defence  in 
ejectment. 

Ord.  12, 
R.  21,  E. 


Rule  lO. 

Notice, 
form  of. 

Ord   12, 
R.  22. 


This  is  similar  to  the  old  rule  of  practice  (2  Ferg.  Prac.  1 1  fi3). 
The  course  was  to  move  that  the  solicitor  do  show  cause  why 
he  should  not  forthwith  enter  an  appearance  and  pay  the  costs 
of  the  application.  (/) 

7.  A  defendant  may  appear  at  any  time  before  judg- 
ment, save  as  provided  by  Order  XII.,  E..  8.  If  he  ajipear 
at  any  time  after  the  time  limited  for  appearance  he  shall, 
on  the  same  day,  give  notice  thereof  to  the  plaintiff's 
solicitor,  or  to  the  plaintiff'  himself  if  he  sues  in  person, 
and  lie  shall  not,  unless  the  Court  or  a  Judge  otherwise 
order,  be  entitled  to  any  further  time  for  delivering  his 
defence,  or  for  any  other  purpose,  than  if  he  had  appeared 
according  to  the  writ. 

8.  Where  a  person  not  named  as  defendant  in  any  writ 
of  summons  for  the  recovery  of  land  has  obtained  leave  of 
the  Court  or  Judge  to  appearand  defend,  he  shall  enter  an 
appearance  according  to  the  foregoing  Rules,  entitled  in 
the  action  against  the  party  or  parties  named  in  the  writ 
as  defendant  or  defendants,  and  shall  forthwith  give  notice 
of  such  apjiearance  to  the  plaintiff's  solicitor,  or  to  the 
plaintiff  if  he  sues  in  person,  and  shall  in  all  subsequent 
proceedings  be  named  as  a  party  defendant  to  the  action. 

See  Com.  Law  Pro.  Act,  18.53,  s.  200,  as  to  application  for 
leave  to  defend  on  affidavit  that  the  person  is  in  possession 
either  by  himself  or  his  tenant. 

9.  Any  person  appearing  to  a  writ  of  summons  for  the 
recovery  of  land  shall  be  at  liberty  to  limit  his  defence 
to  a  part  only  of  the  property  mentioned  in  the  vnit, 
describing  that  part  with  reasonable  certainty  in  his 
memorandum  of  appearance  or  in  a  notice  entitled  in  the 
cause,  and  signed  by  him  or  his  solicitor ;  such  notice  to 
be  served  within  four  days  after  appearance  ;  and  an 
appearance  where  the  defence  is  not  so  limited  shall  be 
deemed  an  appearance  to  defend  for  the  wdiole. 

See  Com.  Law  Pro.  Act,  1853,  s.  199.  Which  was  con- 
fined to  ejectments  on  the  title. 

10.  The  notice  mentioned  in  the  last  preceding  Eule 
may  be  in  the  Form  No.  7  in  Part  I.  of  Appendix  (A) 
hereto,  with  such  variations  as  circumstances  may  require. 


(J)  See  case  since  J.  A. 
\V.  li.  453. 


The  Vivai,  L.  K.,  2  Prob.  &  D.,  21)-2j. 


[     525     ] 

Order  XII.  Order  12. 

Default  of  Appearance. 

1.  Where  no  appearance  has  been  entered  to  a  writ  of    Ru^-e  i. 
summons  for  a  defendant  who  is  an  infant,  or  a  person  of  By  infant 
unsound  mind  not  so  found  by  inquisition,  the  plaintifl' ^[y^souncl 
may  ap})ly  to  the  Court  or  a  Judge  for  an  order  that  some  mind, 
proper  person  be  assigned  guardian  of  such  defendant,  by  ^^arton"^ 
whom  lie  may  appear  and  defend  the  action.     But  no  such  ^^^^  ^g 
order  shall  be  made  unless  it  appears  on  the  hearing  of  i;.  i.  E.' 
such  application  that  the   writ  of   summons  was  duly 
served,  and  that  notice  of  such  application  was  after  the 
expii-ation  of  the  time  allowed  for  appearance,  and  at  least 
six  clear  days  before  the  day  in  svich  notice  named  for 
hearing  the  application,  served  upon  or  left  at  the  dwelling- 
house  of  the  person  with  whom  or  under  whose  care  such 
defendant  Avas  at  the  time  of  serving  such  writ  of  sum 
mons,  and  also  (in  the  case  of  such  defendant  being  an. 
infant  not  residing  with  or  under  the  care  of  his  father  oi 
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. 

Instead  of  plaintiff  entering  an  appeai'ance  for  defendant  in 
default,  where  the  defendant  is  an  adult  and  not  of  unsound 
mind,  on  filing  an  affidavit  of  service  and  producing  a  copy  of 
it  and  the  original  writ  and  a  certificate  of  no  appearance, 
plaintifFmay  (except  in  Chancery  actions  proper)  sign  judgment 
by  default  of  some  kind  and  in  Chancery  actions  proper  he  may 
proceed  as  if  defendant  had  appeared,  see  Eide  10,  iufru. 

If  defendant  be  an  infant  or  of  unsound  mind  phiintiff  must 
apply  for  the  appointment  of  a  guardian  ad  litem  to  appear  and 
defend  before  be  proceeds  to  judgment. 

Judgment  may  be  signed  against  a  foreign  Coi-poration 
served  with  notice  abroad,  (k)  It  may  be  entered  immediately 
after  the  proper  time  for  appearance  has  expired,  and  this 
although  defendant  has  filed  a  petition  in  liankruptcv,  and 
probably  notwithstanding  the  marriage  of  a  female  defendant. 
\Vhere  the  defendant  is  a  lunatic  so  found  by  inquisition,  it 
would  seem,  that  on  service  of  the  Committee  of  the  estate, 
and  default  of  appearance  the  plaintiff  is  entitled  to  enter 
judgment  by  default  in  the  ordinary  way. 

Whether  judgment  in  default  of  appearance  can  be  entered 
in  case  the  writ  has  not  been  indorsed  with  date  of  service. (Z) 

It  is  not  necessary  to  file  a  copy  of  the  writ  but  to  produce 
it  or  the  original. 

(i-)  See  Scott  v.  Royal,  Wax  Candle  Cv,  L.  R.,  1  Q.  B.  D.,  40-1 ;  24 
W.  R.  668;  Baker  v.  Turner  20  Sol.  Jour.  521,  V.  C.  H. 
(0  Dyiuoud  V.  Croft,  L.  R.,  3,  Ch.  D.  512,  A.  C. 


526  DEFAULT   OF   APPEARANCE. 

Order  12.  2.  "Where  any  defendant  fails  to  appear  to  a  writ  of 

Rule  2.  summons,  and  the  phxintitf  is  desirous  of  pi'oceeding  upon 

Affidavit  default  of  appearance  under  any  of  the  following  Rules 

of  service  of  this  Order,   or  under  Order  XIV.,  Rule  1,  he  shall, 

^°    '^     *^  ■  before  taking  such  proceeding  upon  default,  file  an  affidavit 

jj*"  2  ^1;'  of  service,  or  of  notice  in  lieu  of  service,  as  the  case  may 
be. 

It  will  be  the  duty  of  the  ^Taster  of  the  Court  or  the  Regis- 
trar, before  he  allows  judgment  to  be  entered  as  in  default,  to 
see  tlie  affidavit  of  service  is  a  proper  one,  and  that  it  appears 
thereby  that  due  service  has  been  had.(m) 

Rule  3.         3.  Ixi  case  of  non-appearance  by  the  defendant  where 

Final  the  writ  of  summons  is  specially  indorsed,  under  Order 

on  Specially  ^^-^  R^Ig  3,  the  plaintiff,  upon  filing  an  affidavit  specifying 

indorsed      the  amount  actually  due,  may  sign  final  judgment  for  such 

writ.  g^^j^^  j^Q^  exceeding  the  sum  indorsed  on  the  writ,  together 

R  *^3  E^'       with  interest  at  the   rate  specified,  if  any,  to  the  date 

of  the  judgment,  and   a   sum   for   costs,  but  it  shall    be 

lawful  for  the  Court  or  a  Judge  to  set  aside  or  vary  such 

judgment  upon  such  terms  as  may  seem  just. 

The  Order  II.  R.  3  enables  the  plaintiff  to  indorse  his  writ 
of  summons  specially  with  the  particulars  of  his  claim  consist- 
ing of  a  debt  or  liquidated  demand  with  the  idtimate  view  of 
having  judgment  in  a  summary  way  by  default  on  non-appear- 
ance as  to  Avhich,  see  ante,  p.  506. (n) 

Rule  4.         4.  Where  there  are  several  defendants  to  a  writ  specially 

Default  by   indorsed  for  a  debt  or  liquidated  demand  in  money,  under 

several         Order  II.,  Rule  3,  and  one  or  more  of  them  appear  to  the 

defendants  writ,  and  another  or  others  of  them  do  not  appear,  the 

Ord.  13,       plaintiff  may,  upon  filing  a  like  affidavit  as  in  the  next 

R.  4,  L.       preceding  rule   prescribed,  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. 

Under  the  former  practice,  if  plaintifFissued  execution  against 
one  or  more  of  the  defendants  wlio  had  not  ajipeared,  it  was  an 
abandonment  of  the  action  against  those  who  had  appeared. 
This  is  not  so  now. 

Rule  5.  5.  Where  the  defendant  Mis  to  appear  to  the  writ  of 
Liquidated  summons  and  the  writ  is  not  specially  indorsed,  but  the 
claim  not  plaintiff's  claim  is  for  a  debt  or  liquidated  demand  only, 
aififiavit'of  HO  Statement  of  claim  need  be  delivered,  but  the  jilaintift' 
particulars,  may  file  an  affidavit  of  service  or  notice  in  lieu  of  service, 

Ord.  1 3, 

R.  b  Ji.  (m)  See  Com.  Law  Pro.  Act,  185.3,  s.  9(J-97. 

(;i)And  see  Com.  Law  Pro.  Act,  Ibo'd,  s.  96. 


DEFAULT   OF   APPEARANCE.  527 

as  tlie  case  may  be,  and  an  affida\T.t  stating  the  particulars  Order  12. 
of  liis  claim  in  respect  of  tlie  causes  of  action  stated  in  the 
indorsement  upon  the  writ,  and  the  sum  actually  due,  and 
may,  after  the  expiration  of  eight  days,  enter  tinal  judg- 
ment for  the  amount  due  as  stated  in  such  affidavit  and 
costs  to  be  taxed,  provided  that  the  amount  shall  not  be 
more  than  the  sum  indorsed  upon  the  writ,  besides  costs. 

The  affidavit  ^vill  contain  a  statement  of  particulars  of  claim 
of  the  same  nature  as  what  might  have  been  specially  indorsed 
on  the  writ  under  Ord.  II.  R.  3. 

6.  Where  the  defendant  fails  to  appear  to  the  v\Tit  of    Rule  6. 
summons  and  the  plaintiffs  claim   is  not  for  a  debt  or  For  de- 
licpiidated  demand  only,  but  for  detention  of  goods  and  gg^j'^  qj. 
pecuniary  damages,  or  either  of  them,  no  statement  of  dam  aces- 
claim  need  be  delivered,  but  interlocutory  judgment  may  j^qyipy^ 
be  entered  and  a  writ  of  inquuy  shall  issue  to  assess  the  qj.^j  j., 
value  of  the  goods  and  the  damages,  or  the  damages  only,  R.  6,  E. 
as  the  case  may  be,  in  respect  of  the  causes  of  action 
disclosed  by  the  indorsement  on  the  wiit  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  ;  or  by 
inquiry  at  chambers  in  actions  assigned  to  the  Chancery 
Division  ;  or  in  actions  assigned  to  the  Queen's  Bench, 
Common  Pleas,  or  Exchequer  Divisions,  by  the  Master 
of  the  Division,  in  the  manner  prescribed  by  the  Common 
Law  Procedure  Amendment  Act  (Ireland),  1853. 

See  Com.  Law  Pro.  Act,  1853,  s.  98,  which  applies  to  cases 
not  exactly  hquidated,  but  yet  matter  of  calculation  in  which 
the  inquiry  might  be  held  befoi-e  the  Master  of  the  Court. 

Where  the  action  was  on  a  bill  of  costs  untaxed,  the  practice 
was  to  have  the  amount  ascertained  by  the  Master  -vvithout  a 
jury,  on  the  evidence  of  some  independent  professional  man,  or 
by  reference  to  the  taxing  officer.(o) 

'  It  is  not  to  be  assumed  from  this  that  in  an  action  for 
detention  of  specific  chattels,  plaintiff  is  not  entitled  to  judg- 
ment for  a  return  of  the  chattels  and  a  writ  of  delivery  instead 
of  an  inquiry  of  their  value,  (jj) 

7.  In  case  no  appearance  shall  be  entered  in  an  action     Rule  7. 
for  the  recovery  of  land,   within  the  time  limited  for  For  re- 
ajipearance,  or  if  an  appearance  be  entered  but  the  defence  poss^eJsion 
be  limited  to  part  only,  the  plaintiff  shall  be  at  liberty  to  of  land. 

.  Ord.  13, 
(o)  Shortal  i:  Farrell,  Ir.  Rep.,  3  Com.  Law,  500  Q.  B.  ;  see  Conollv 

V.  Teeling,  12  Ir.  Com.  Law  Rep..  App.  29. 

(p)  See  Ivorj'  v.  Cruickshank,  W.  K  1875,  249 ;  20  Sol.  Jour.  140, 

Quain,  J. 


.  K.  7,  E. 


528 


DEFAULT   OF   APPEARANCE. 


Order  12. 


Rule  S. 
Appear- 
ance after 
time 
limited. 
Ord.  13, 
R.  8,  E. 

Rule  9. 
Mesne 
profits  and 
land. 
Old.  13, 
R  9,  E. 

Rule  10. 
Chancery 
actions, 
special, 
statutably 
assigned 
to  proceed 
as  if  ap- 
pearance 
entered. 
Oi-d.  13, 
R.  U,  E. 

1 


enter  a  judgment  tliat  the  i)erson  whose  title  is  asserted 
in  the  writ  shall  recover  possession  of  the  land,  or  of  the 
part  thereof  to  which  the  defence  does  not  apply. 

If  service  be  by  postinoj  on  a  vacant  possession,  the  plaintiff 
would  seem  not  entitled  to  enter  judgment  without  a  special 
order. 

8.  No  person  served  with  a  writ  of  summons  in  an 
action  for  the  recovery  of  land  shall  be  permitted  to 
appear  after  the  time  allowed  for  a]:)pearance  as  in  such 
writ  mentioned  without  leave  of  the  Court  or  a  Judge. 

9.  Where  the  plaintiff  has  indoi'sed  a  claim  for  mesne 
profits,  arrears  of  rent,  or  damages  for  breach  of  contract, 
upon  a  writ  for  the  recovery  of  land,  he  may  enter  judg- 
ment as  in  Rule  7  mentioned  for  the  land  ;  and  may  pro- 
ceed as  in  the  other  preceding  Rules  of  this  Order  as  to 
such  other  claim  so  indorsed. 

10.  In  actions  assigned  by  the  36tli  section  of  the  Act 
to  the  Chancery  Division,  and  in  all  other  actions  not  by 
the  Rules  in  this  Order  otherwise  specially  provided  for, 
in  case  the  party  served  with  the  writ  does  not  appear 
within  the  time  limited  for  ajopearance,  upon  the  filing 
by  the  plaintiff  of  a  proper  affidavit  of  service  the  action 
may  proceed  as  if  such  party  had  appeared. 

In  Chancery  causes  when  a  defendant  (not  being  an  infant 
or  person  of  weak  or  unsound  mind,  and  being  resident  in 
Ireland)  did  not  appear,  plaintiff  might  after  eight  days  for 
appearance  expired,  and  within  three  weeks  after  that,  ai)]ily 
to  the  Clerk  of  Records  and  Writs  to  enter  an  appearance  for 
him. (5')  Now  this  is  unnecessary,  and  instead  of  this,  in 
actions  specially  assigned  to  the  Chancery  Division  by  section  Hli 
of  the  J.  Act,  plaintiff  may  proceed  as  if  defendant  had  actually 
appeared.  He  may  file  an  affidavit  of  service  but  he  cannot 
treat  the  defendant  as  if  he  had  dispensed  with  delivery  of  a 
statement  of  claim,  and  consequently  it  seems  he  must  deliver 
one  within  proper  time,  and  In  default  of  defence,  then  set  down 
the  cause  on  motion  for  judgment  in  the  terms  of  the  state- 
ment of  claim,  and  give  notice  to  defendant  of  the  setting 
down.(r)  In  Chancery  causes  where  bill  had  been  filed  and 
interrogatories  delivered  before  the  J.  Act  Court  has  allowed 
the  bill  to  stand  as  a  statement  of  claim  and  deemed  the 
defendant  to  have  made  default  as  to  defence,  and  gave 
leave  to  plaintiff  to  serve  notice  of  motion  for  judgment 
abroad.  (.!,•) 


(7)  28  G.  0.,  31  Oct.  18G7,  Chancerv. 

00  See  Mentony.  IMetcalf,  W.  N.  1877,  142,  V.  C.II.;  Gardiner  v. 
Ilardv,  \V.  N.  1870,  1.");}  Y.  C.  B.  ;  amended  after  Dymoud  v.  Croft, 
L.  T;.":?  Chan.  D.  521,  24  W.  K.  700. 

(s)  lb. 


DEFENCE   TO   WEIT   SPECIALLY   INDORSED.  529 

Tills  rule  applies  only  to  the  ten  classes  of  actions  specially    Order  12. 
assigned  by  the  J.  Act,  s.  36,  to  the  Chancery  Division  ;  see 
Chapter  xix.,  p.  164,  ante. 

Where  Common  Law  actions  have  been  broujiht  in  the 
Chancery  Division  in  England  on  liquidated  demands  or  other 
actions  the  subject  of  the  preceding  rules  of  this  order,  judg- 
ment by  default  may  be  marked  as  it  would  in  any  other 
Division  in  the  like  case. 


Order  XIII. 

Leave  to  Dejend  where  ^Yrit  specially  Indorsed.  Order  13. 

1.   Where  the  defendant  appears  to  a  writ  of  sxxmmons     Rule  i. 

specially  indorsed  under  Order  II.,  Rule  3,  the  plaintiff  After 

may,  on  affidavit  made  by  himself,  or  by  any  other  person  appearance, 

"who   can  swear  positively  to  the  debt  or  cause  of  action,  application 

verifying  the  cause  of  action,  and  stating  that  in  his  belief  f""",  ^""^^ 

.    ®  .  iud<^nieiit. 

there  is  no  defence  to  the  action,  call  on  the  defendant  to  "     ° 

show  cause  before  the  Coxirt  or  a  Jutlge  why  the  plaintiff  r.  {^  k' 

should  not  be  at  liberty  to  sign  final  judgment  for  the 

amount  so  indorsed,  together  with  interest,  if  any,  and 

costs.       A  copy  of  the  affidavit  shall  accompany  the  notice 

of  motion.     The  Court  or  a  Judge  may  thereupon,  unless 

the  defendant,  by  affidavit  or  otherwise,  satisfy  the  Court 

or  a  Judge  that  he  has  a  good  defence  to  the  action  on 

the  merits,   or   disclose  such  facts  as    may  be   deemed 

sufficient   to    entitle    him   to    defend,    make    an    order 

empowering  the  plaintiff  to  sign  judgment  accordingly. 

The  wi'it  must  be  indorsed  with  particulars  of  claim  for  a 
debt  or  liquidated  demand  under  Order  "2,  R.  3. 

Some   conflict  of  opinion   arose   in  England  as  to  whether  Whether 
this  proceeding  was  open  on  a  writ  issued  before  the  Judicature  retrospec 
Act   came  into  operation.     Baron   Huddlestone  held  that  it        * 
might, (^)    ]\Ir.   Justice  Lmdley,(7<)  and   Mr.    Justice    Quain, 
rcf^used  to  give  it  a  retrospective  operation,  (j;)     Lord  Chief 
Justice  Cockburn(w)  regarded  the  new   procedure  as  super- 
seding all  ordinary  forms  and  an  infringement  of  the  common 
law  rights  of  defendants — and  if  so,  it  was  scarcely  allowable 
to  give  it  a  retrospective  operation. 

Where  a  writ  issued  before  the  J.  Act,  but  was  renewed 
afterwards,  this  rule  was  held  available,  the  indoi'sement  being 
amended  by  stating  dates,  (x) 

(0  Anon.  W.  N.,  1875,  260;    20  Sol.  Jour.  102. 
00  Anon.   W.  N,  1876,  12  ;  20  Sol.  Jour.  219. 
(f)  Anon.  W.  N.  1875,  230;  20  Sol.  Jour.  90. 
(w)  Runnacles  v.  Mesquita,  L.  R.  1   Q.  B.  D.,  416,  24  W.  R.  553; 
20  Sol.  Jour.  373. 

{x)  Denison  v.  Franklyn,  20  Sol,  Jour.,  198  Lindley,  J. 

2  A 


0,30  DEFENCE  TO   SPECIALLY  INDORSED   WRIT. 

Order  13.        "Where  a  date  was  misplaced  in  the  form  of  the  indorsement, 
but  not  so  as  to  mislead,  the  application  was  granted. (w) 

Where  the  writ  was  specially  indorsed  for  amount  of  an 
award  and  costs,  not  taxed,  they  should  be  taxed  before  final 
judi»-ment.(a:) 
A^davit  This  affidavit  may  be  made  by  the  plaintiff  or  some  other 

i't  belief.       porson  who  can  swear  positively  to  the  cause  of  action.(j:) 

Omission  to  apply  for  a  summary  order  for  judgment  does 
not  estop  the  plaintiff  from  asking  security  for  costs,  where 
defendant  after  defence  has  become  bankrupt,  (y) 

Rule  2.  2.  The  application  by  the  plaintiff  for  leave  to  enter 
Motion  for.  final  judgment  under  the  last  preceding  Rule  shall  be 
Oi-d.  14,       made  by  motion  to  the  Court  or  a  Judge. 

11.  2,  E.  -^  '^ 

No  particular  time  is  limited  for  the  purpose.  But  it  should 
not  be  delayed  beyond  a  reasonable  time  after  appearance, 
as  the  delay  might  mislead  the  defendant  into  incurring 
unnecessary  expense  in  preparing  his  defence. 

Rule  3.         3.  The  defendant  may  show  cause  against  such  appli- 

Affidavit      cation  by  offering  to  bring  into  Court  the  sum  indorsed 

cause.  on  the  writ,  or  by  affidavit.      In  such  affidavit  he  shall 

ord  14        state  whether  the  defence  he  alleges  goes  to  the  whole  or 

R-  3.  to  part  only,  and  if  so,  to  what  part,  of  the  plaintiff's 

claim.     And  the  Court  or  a  Judge  may,  if  he  think  fit, 

order  the  defendant  to   attend  and  be  examined  upon 

oath  ;  or  to  pi'odiice  any  books  or  documents  or  copies  of 

or  extracts  therefrom. 

The  defendant  has  the  alternative  of  offering  to  bring  into 
Court  the  sum  indorsed  on  the  writ  which  is  per  se  an  undoubted 
guarantee  of  bona  Jides  so  lar  at  least  as  the  belief  of  the 
defendant  is  concerned  and  good  cause  against  plaintiff's  a])pli- 
cation  ;  or  defendant  may  show  cause  on  grounds  stated  in  an 
affidavit, 
Pefence  on  The  grounds  set  foi'th  in  defendant's  affidavit  must  be  such  as 
merits.  to  satisfy  the  Court  or  .Judge  that  defendant  has  a  good 
defence  on  the  merits,  or  it  must  disclose  such  fticts  as  may  be 
deemed  sufficient  to  entitle  him  to  defend  the  action.  Where 
no  such  affidavit  is  produced,  the  Court  must  assume  there  is 
no  substantial  defence. (c)  A  bare  general  swearing  to  a  good 
delence  on  the  merits  is  not  enough,  for  this  would  but  encourage 

(w)  Anon.  W.  N.,  1870,  53. 

(.r)  French  v.  Lear,  21   8ol.  ,Tour.,  479,  Ex.  D, 

Ix)  See  Frederici  v.  Vanderzce,  L.  II.  2,  C.  V.  D.  70,  25  W.  P.. 
38!l  ;  a  case  before  the  Kiifjlisli  Order  was  amended  also ;  Bank  of 
i\ioiitreal  v.  Cameron,  L.  \\.,  2  Q.  B.  D.,  bM\  25  W.  I!.,  59;!. 

[I/)  Ex  p.  Horsford,  In  re  Smith,  L,  U.  0  Chan.  D.  215,  25  \V.  K. 
799;  21  Sol.  .Tour.  731,  A.  C. 

(z)  Anon.  20  Sol.  Jour.  2 1 9,  Lindley,  J. 


-/ 


DEFENCE  TO   SPECIALLY   INDORSED  WRIT.  531 

illusory  affidavits,  (a")  nor  that  defendant  had  taken  proceedings    Order  13. 
in  Bankruptcy  and  disputed  the  correctness  of  the  accounts 
delivered  by  plaintiff.  (Z>) 

But  on  hearing  such  an  application  the  Court  will  not  pretend 
to  try  the  action ;  all  that  it  requires  to  see  is,  that  there  is  a 
hona  fide  defence, (c)  and  having  regard  to  the  views  expressed 
by  the  Lord  Chief  Justice  of  England  that  this  procedure 
infringes  the  Common  Law  rights  of  defendants,  the  discretion 
given  to  the  Court  is  one  which  should  be  exercised  with 
caution,  and  as  soon  as  it  is  found  that  there  is  a  bona  fide 
contest,  the  Judge  will  probably  refuse  to  hear  the  case 
further  ;(6?)  and  where  defendant  states  a  defence,  prima  facie 
good,  he  ought  to  be  allowed  to  try  the  matter  further  on 
reasonable  conditions,  such  as  paying  money  into  Court,  (e) 
Thus,  where  defendant  relied  on  a  deed  of  release  which  plain- 
tiff insisted  was  a  mere  escrow,  the  question  was  too  difficult 
for  summary  decision. (/) 

But  otherwise  the  Court  will  examine  the  case  so  far  as  to 
see  there  is  a  bona  fide  defence,  and  may  adjourn  it  for  plaintiff' 
to  adduce  further  evidence  of  the  claim, (g-)  ex.  gr.,  to  produce 
documentary  evidence. (^)  Where  a  possible  defence  is  sug- 
gested but  not  immediately  shown,  the  Court  may  give  liberl:v 
to  enter  judgment  unless  defendant  pay  the  amount  claimed 
into  Court.(/)  Where  the  defence  set  forth  is  manifestly  unten- 
able, it  would  be  cruelty  to  defendant  to  allow  the  action  to  be 
defended.  (A) 

In  an  action  against  two  solicitors  as  pai'tners,  where  one  did 
not  dispute  the  claim  and  the  other  alleged  that  the  partnership 
had  been  dissolved,  but  offered  no  explanation  of  the  defence, 
judgment  was  allowed  to  be  signed. (Z)  Where  the  defence  was 
that  the  work— a  pump — the  subject  of  the  action,  was  insuffi- 
cient for  its  purpose,  and  plaintiff'  swore  the  defendant  had 
called  and  admitted  the  claim,  order  was  made  for  judgment, 
unless  the  sum  claimed  was  paid  into  Court. (?«) 

(ff)  Runnncles  v.  Mesquita,  L.  R.,  1  Q.  B.  D.  416 ;  24  W.  R.  553  : 
20  Sol.  Jour.  373. 

(6)  Anon.  W.  R.  1S7G,  23 ;  20  Sol.  Jour.  242,  Lindlev,  J. 

(c)  Ar.drews  v.  Stewart,  W.  N.  1876,  230;  20  Sol.  Jour.  162, 
Quain,  J. 

(d)  Runnacles  v.  Mesquita,  supra. 

(e)  Andrews  v.  Stewart,  s>ip?-a,  per  Quain,  J. 

(/)  Berridge  v.  Roberts,  W.  N.  1876,  SG ;  20  Sol.  Jour.  320,  Demiian, 
J.  ;  and  see  Anon.  W.  N.  1876,  64,  Archibald,  J. ;  a  case  of  contra- 
dictorv  affidavits  under  the  Bills  of  Exchange  Act. 

(^"Anon.  \V.  N.  1875,  249;  20  Sol.  Jour.  141,  Quain,  J.  Anglo- 
Italian  Bank  V.  Wells,  W.  N.  1877,  263,  V.  C.  H. 

(h)  Anon.  ^0  Sol.  Jour.  162,  Huddlestone,  B. 

(0  Roberts  v.  Guest,  W.  N.  1876,  10;  20  Sol.  Jour.  217,  Lindlev,  J. 

(k)  Anon.  W.  N.  1876,  100;  20  Sol.  Jour.  342,  Denman,  J. ;' and 
see  Woolstnn  v.  Raines.  W.  N.  1876,  74;  20  Sol.  Jour.  320;  and  see 
Lord  Hanmer  v.  Flight,  W.  N.  1376,  54;  24  W.  R.  346,  C.  P.  D. 

(I)  East  Assam  Company  v.  Roche,  W.  N.  1875,  238;  20  Sol.  Jour. 
100  Qu^in,  J. 

(in)  Phillips?;.  Harris,  W.  N.  1876,  54 ;  20  Sol.  Jour.  28,  Archibald,  J. 

2  a2 


Order  13. 


Disclosing 
facts  en- 
titling: him 
to  defend. 


llULE  4. 

Judgmeut 
lor  part. 

<  >rd.  14, 
It.  4,  K. 


DEFENCE   TO    SPECIALLY   INDORSED   WRIT. 

Wlit-re  the  Court  has  reason  to  think  the  defence  is  sub- 
stantial, it  will  not  compel  defendant  to  jiay  money  into  Court  as 
a  condition  to  being  allowed  to  defend. (?i) 

The  defendant's  afhdavit  is  not  final,  and  the  Court  may 
allow  the  plaintitFto  file  an  afFiilavit  in  reply,  (o) 

Besides  showing  an  actual  defence,  defendant  may  be  sued 
as  a  surety  on  a  guarantee,  and  the  amount  of  the  demand  may 
not  be  within  his  knowledge,  so  that  he  may  reasonably  call  on 
plaintiff  to  prove  his  case(/>),  or  the  defendant  may  not  be  able 
to  dis])ute  the  claim,  l)ut  may  have  a  counterclaim  of  equal  or 
"•reater  amount  arising  out  of  the  same  transaction  or  contract.((7) 
Where  the  counterchim  orset-otiwas  not  actually  enfot|ceable 
the  Court  refused  to  stay  judgment,  unless  amount  of  claim  was 
lodged(r),  so  where  the  object  was  merely  to  bring  a  third 
])arty  before  the  Court  for  indemnity,  (.<f)  and  it  wasnot  sufficient 
reason  to  stay  judgment  that  defendant  was  at  sea  and  was 
served  with  the  writ  on  the  day  before  he  left  England.(0 

Where  the  writ  is  specially  indorsed  it  is  unnecessary  in  order 
to  have  judgment  to  deliver  a  statement  of  claim,  though 
defendant  has  not  dispensed  with  it.(M) 

AVlien  the  application  for  judgment  is  refused,  the  order 
ought  expressly  give  defendant  leave  to  defend  within  a  certain 
tiine  (eight  days  generally),  although  probably  this  much  may 
be  implied  from  it.(w) 

4.,  If  it  appear  that  the  defence  set  up  by  tlie  defendant 
applies  only  to  a  part  of  the  plaintiff's  claim  ;  or  that  any 
part  of  his  claim  is  admitted  to  be  due  ;  the  plaintiff  shall 
have  judgment  forthwith  for  such  part  of  his  claim  as  the 
defence  does  not  apply  to  or  as  is  admitted  to  be  due, 
subject  to  such  terms,  if  any,  as  to  suspending  execution, 
or  the  payment  of  the  amount  levied  or  any  part  thereof 
into  Court  by  the  sherifi",  the  taxation  of  costs,  or  other- 
wise, as  the  Court  or  a  Judge  may  think  fit.  And  the 
defendant  may  be  allowed  to  defend  as  to  the  residue  of 
the  plaintiff's  claim. 

Where  defendant  admits  the  claim  partially,  he  will  usually 


(h)  liunnacles  v.  Mesquita  L.  R.  1  Q.  B.  D.  416. 

(o)  Davis  V.  Spence,  L.  R.  1  C.  T.  D.  719,  25  W.  R.  229. 

{p)  Llovd's  Banking  Company  v.  Ogle,  L.  R.  1  Ex.  D.  2G2,  24 
W.  K.  G78. 

Ql)  Anon.  20  Sol.  Jour.  101,  Qnain,  J. 

(^r)  r.obert.s  v.  Guest,  W.  N.  187G,  10;  20  Sol.  Jour.  210,  Lindley,  J. 

(,s)  German  Bank  of  London  i;.  Schmidt,  W.  N.  187G;  20  Sol.  Jour. 
217,  Lindlev,  J. 

(0  Anon.  \V.  N.  1875,  2G0,  20  Sol.  Jour.  1G2,  lluddloston,  B.,  but 
see  Anon.  W.  N.  187G,  28;  20  Sol.  Jour.  242,  Lindley,  J. 

(^0  Atkin.s  V.  Tjiylor,  W.  N.  187G,  11,  20  Sol.  Jour.  218,  Lindley,  J. 

I  r)  Margate  Pier  and  Harbour  Company  v.  Perrv,  W.  N.  1876,  52; 
20  .S..1.  Jour.  27!),  Archibald,  J.;  Atkins  v.  Taylor,  W.  N.  1876,  11, 
20  Sol.  Jour  218. 


SUMMARY   ORDER   FOR  ACCOUNT.  5o3 

be  ordered  to  pay  tlie  sum  admitted  into  Court  witlnii  a  limited    Orderl3. 
time,  or  liberty  for  plaintiff'  to  enter  judgment,  (ji-) 

5.  If  it  appears  to  the   Court  or  a   Judge  tliat   any     Rule  .3. 
defendant  has  a  good  defence  to  or  ought  to  be  permitted  Judgment 
to   defend  the  action,  and  that  any  other  defendant  has  ^'./^jj^^jt. 
not  such  defence  and  ought  not  to  be  permitted  to  defend,  ^^.^  ^^^ 
the  former  may  be  permitted  to  defend,  and  the  plaintiff  R.  5,  E.' 
shall  be  entitled  to  enter  final  judgment  against  the  latter, 

and  may  issue  execution  upon  such  judgment  without 
prejudice  to  his  right  to  proceed  with  his  action  against 
the  former. 

6.  Leave  to  defend  may  be  given  unconditionally  or     rule  c. 
subject  to  such  terms  as  to  giving  security,  or  otherwise,  Leave  to 
as  the  Court  or  a  Judge  may  think  fit.  ''tfend  ou 

°  *'  terms. 

r\  -vr-^r  Old.  14, 

Order  XLV.  u  e  e. 

AjypUcationJor  Account  where  Writ  indorsed  under 

Order  II.,  Rule  5.  Order  14. 

1.  In   default   of   appearance  to    a  writ   of   summons     rux,e  i. 

indorsed  under  Order  II.,  Eule  5,  and  after  appearance  Order  for 

unless  the  defendant,   by  affidavit  or  otherwise,  satisfy  au  account 
T     1        , 1     .   ,  1  •  T      ■  "1  defuult 

the  Court  or  a  Judge  that  there  is  some  preliminary  ques-  ^.j-  appear- 

tion  to  be  tried,  an  order  for  the  account  claimed,  with  all  ance. 

directions  now  usual  in  the  Court  of  Chancery  in  similar  Ord.  i.d, 

cases,  shall  be  forthwith  made. 

In  order  to  take  advantage  of  this  rule,  the  writ  of  summons 
should  be  si)eciully  iudorsecl  with  a  claim  for  an  account. 

The  rule  will  be  available  in  ordinary  actions  for  an  account, 
ex.  qr.,  between  partners,  or  against  executors  or  trustees,  see 
Ord.  2,  R.  5,  ante. 

The  order  for  an  account  under  this  Rule  will  be  equivalent 
to  a  decree  to  account  in  an  administration  suit,  to  enable 
plaintiff  to  stay  actions  in  Common  Law  Divisions. (a:) 

To  obtain  this  summary  relief  without  a  hearing  of  the  cause 
the  rules  must  be  strictly  observed  and  no  order  can  be  made 
before  defendant  has  either  appeared  or  made  default  in 
appearing  in  due  time.(?/) 

An  application  for  an  order  for  an  account  under  this  Rule 
should  be  made  by  Summons  at  Chambers,  see  Ord.  53,  R  2, 
{■1)  infra :  although  in  this  rule  it  is  directed  to  be  by  motion. 

2.  An  application  for  such  order  as  mentioned  in  the     Role  2. 
last"  preceding    Eule  shall  be  made  by  motion,   and  be  JJ,!;j;°'l['''' 

(jy)  Anon.  W.  N.  1876,  53;  20  Sol.  Jour.  282,  Archibald,  J.;  and    ^' "     ' 
see  Lord  Hanmer  v.  Flight,  \V.  N.  187G,  oi;  20  Sol.  Jour.  280,  ib. 
24,  W.  R.  3i6,  C.  P.  D. 

(a-)  BeU  V.  Lowe,  W.  N.  1875,  229 ;  20  Sol.  Jour.  07,  Quain,  J. 

(;/)  III  re  Plant,  deceased,  Ilaxall  i--.  Hodgson,  20  Sol.  Jour.  CG'3, 
M.  R. 


534?  PARTIES. 

Order  14.  supported  by  an  affidavit  filed  on  behalf  of  the  plaintiff, 
stating  concisely  the  grounds  of  his  claim  to  an  account. 
Tlie  application  may  be  made  at  any  time  after  the  time 
for  entering  an  appearance  has  expired. 


Order  XV. 
Parties. 
Order  15.  SCHEDULE  RuLE  19. 

Actions  not  "  ]sJ"o  action  shall  be  defeated  by  reason  of  the  mis- 
mf^oinde/  joinder  of  parties,  and  the  Court  may  in  every  action 
Adding  deal  with  the  matter  in  controversy  so  far  as  regards  the 
■'■trik'^*  ^"^"^  rights  and  interests  of  the  parties  actually  before  it. 
our.  The  Court  or  Judge  may,  at  any  stage  of  the  proceedings, 

ord.  16,       either  upon  or  without  the  application  of  either  party,  in 
It.  1.3,  E.      -^i^Q   uianner  prescribed  by  rules,  and   on  such  terms  as 
may  seem  to  the  Court  or  a  Judge  to  be  just,  order  that 
the  name  or  names  of  any  party  or  parties,  whether  as 
plaintiffs  or  as  defendants,  improperly  joined  be  struck 
out,  and  that  the  name  or  names  of  any  party  or  parties, 
whether  plaintiffs  or  defendants,  who  ought  to  have  been 
jouied,  or  whose  presence  before  the  Court  may  be  neces- 
sary in  order  to  enable   the  Court  effectually  and  com- 
pletely to  adjudicate  upon  and  settle  all  the  que.stions 
involved  in  the  action,  be  added.     No  person  shall  be 
added  as  a  plaintiff  suing  without  a  next  friend^  or  as  a 
next  friend  of  a  plaintiff  under  any  disabilitj',  without 
Added         his  own  consent  thereto.     All  pai-ties  whose  names  are 
defendants         added  as  defendants  shall  be  served  with  a  summons 

served  with  .        .  ,  ,  -i      t  i  i 

notice.  or  notice  m  such  manner  as  may  be  prescribed  by  rules 
or  by  any  special  order,  and  the  proceedings  as  against 
them  shall  be  deemed  to  have  begun  only  on  the  service 
of  such  summons  or  notice." 

Schedule  Rule  20. 
Numerous  "When  there  are  numerous  parties  having  the  same 
parties  interest  in  one  action,  one  or  more  of  such  parties  may 
or  be  sued  s^^e  or  be  sued,  or  may  be  authorized  by  the  Court  to 
by  one  or  defend  in  such  action,  on  behalf  or  for  the  benefit  of  all 
parties  so  interested." 


more. 
Ord.  16, 
R.  9,  E. 


Rules  of  Court. 
Parties  and  Notice  Parties. 
1.  Plaintiffs. 
RtLE  1.         1.    All  persons  maybe  joined  as  plaintiffs  in  whom  the 
piaiutlffs"^    riglit  to  any  relief  claimed  is  alleged  to  exist,  whetlier 
Ord.  Ki,  '     jointly,  severally,  or  in  the  alternative.     And  judgment 
U   1,  E. 


PARTIES.  535 

may  be  given  for  sucli  one  or  more  of  the  plaintiffs  as  may    Order  15. 

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. 

As  to  Misjoinder  of  plaintiffs,  see  Chapter  50.  (460),  p,  367, 
ante. 

As  to  joinder  of  plaintiffs,  see  (463),  p.  368,  ante. 

Alternative  reliefs  must  not  be  inconsistent  one  with  another,  Alternative 
and  a  plaintiff  cannot  now,  as  be  could  not  hitherto  bring  an  ""^^i^^- 
action  for  inconsistent  relief,  or  alternate  relief  founded  on 
inconsistent  allegations,  (z) 

2.  Where  an  action  has  been  commenced  in  the  name     ^^^^  2. 
of  the  wi'ong  person  as  plaintiff,  or  where  it  is  doubtful  Action 
whether  it  has  been  commenced  in  the  name  of  the  right  jq  j,ame 
plaintiff  or  plaintiffs,  the  Court  or  a  Judge  may,  if  satisfied  of  wrong 
that  it  has  been  so  commenced  through  a  mistake,  and  ^^'°  ' 
that  it  is  necessary  for  the  determination  of  the  real  matter  -^  ,'^  ^[ 
in  dispute  so  to  do,  order  any  other  person  or  -oersons  to 
be  substituted  or  added  as  plaintiff  or  plaintiffs  upon  such, 
tenns  as  may  seem  just. 

Where  an  action  was  commenced  in  the  name  of  a  Bank  on  Joinder  of 
a  promissory  note  lodged  by  the  payee  who  forgot  to  indorse  it,  plamtiff. 
the  name  of  the  payee  was  substituted  on  payment  of  costs.(a) 

The  name  of  the  At toi-ney- General  as  informant  has  been 
substituted  in  an  action  for  an  injunction  by  a  private  person 
turning  the  action  into  an  information  and  this  without  pre- 
judice to  a  notice  for  an  injunction. (//) 

The  Court  may,  instead  of  substituting  a  new  plaintiff  for 
another,  add  his  name  as  co -plaintiff. (c) 

Amendments  of  this  nature  have  been  made  exparte  without 
prejudice  to  defendant's  application  to  expunge  the  added 
name.(i'Z) 

If  it  appeared  that  the  original  plaintiff  had  no  case  at  all, 
while  the  new  plaintiff  had,  it  might  be  ditficult  to  amend 
without  working  some  injustice  to  the  defendants. (e) 

(z)  Evans  v.  Brick,  L.  R.,  4  Chan.  D.,  432,  25  W.  R.  392,  M.  R  ; 
Cliild  V.  Stenning,  L.  R.,  5  Chan.  D.  G95,  25  W.  R.  olP,  A.  C.  See 
Ede  V.  Vvse,  2 1  Sol.  Jour.  4;)S,  V.  C.  H. 

(«)  MeVcantile  River  Plate  Bank  v.  Isaac,  W.  N.,  1876,  104,  20 
Sol.  Jour.  340,  Denman,  J. 

(&)  Caldwell  V.  Pagham  Harbour  Company,  L.  R..  2  Chan.  D.,  221, 
24  W.  R.  690.  V.  C.  H.  following  Mounsey  v.  Earl  of  Lonsdale,  L.  li., 
6  Chan.  D.  141. 

(c)  Smith  V.    Haseltine,  AV.    N.,  1875,250;  20   Sol.   Jour.  14. 
Huddlestone,  B. 

{d)  See  Webster  v.  Thorne,  20  Sol,  Jour.  351,  M.  R. 

(e)  See  Tildersley  v.  Harper,  L.  R.,  3  Chan.  D.  227,  V.  C.  H. 


536  PAETIES. 

Order  15.  2.   Dejendants. 

Rule  3.         3.  All  persons  may  be  joined   as  defendants  against 

Joinder  of    whom  tliB  right  to  any  relief  is  alleged  to  exist,  wliether 

O^rd'^f^"'^  jointly,  severally,  or  in  the  alternative.     And  judgment 

R.  3,  e!        may  be  given  against  such  one  or  more  of  the  defendants 

as  may  be  found  to  be  liable,  according  to  their  respective 

liabilities,  without  any  amendment. 

Joinder  of        In  Common  Law  actions  if  there  were  several  defendants, 

c.iuses  of      j,^  order  to  have  judgment  against  them,  they  should  have  been 

a^a'iT-t         jf'i'itly  liable  to  the  full  extent  of  the  judgment,  and  plaintiff 

defendants,  could  not  have   one  judgment  against  one  defendant  and  a 

different  judgment  against  another.     Even  in  actions  of  tort, 

thouirh  plaintiff  might  have  judgment  against  one  defendant 

and  not  against  another,  he  could  not  have  judgment  against 

two  or  more  of  different  qualities  or  amounts. 

In  equity  it  was  not  necessary  that  the  defendant  should  be 
interested  in  the  whole  subject-matter  of  the  suit,  or  connected 
with  every  branch  of  it,  orinthe  same  degree,  provided  theobject 
of  the  suit  was  single.  Several  defendants  might  have  op]iosite 
interests  in  distinct  questions  arising  out  of  a  single  matter,  or 
might  have  been  subject  to  different  measures  of  relief  and 
should  nevertheless  be  l^rought  before  the  Court  in  order  that 
the  suit  might  conclude  them  all.(c)  In  analogy  to  the  Rules 
of  Equity,  now  all  persons  may  be  joined  as  defendants  against 
whom  the  right  to  any  relief  is  alleged  to  exist,  whether  jointly, 
severally,  or  in  the  alternative,  and  judgment  may  be  given 
against  such  one  or  more  of  them  as  may  be  found  liable 
according  to  their  respective  liabilities,  subject  however  to  the 
power  conferred  by  Rule  4  upon  the  Court  or  a  Judge  to  jirevent 
any  defendant  being  embarrassed  or  put  to  expense  by  being 
rcfjuired  to  attend  any  proceedings  in  the  action  in  which  he 
may  have  no  interest. 

Rule  4.  4.  It  shall  not  be  necessary  that  eveiy  defendant  to 
Defendant  any  action  shall  be  interested  as  to  all  the  relief  thereliy 
peed  not  be  p^j^^yed  for,  or  as  to  every  cause  of  action  included  therein  ; 
in  all  the  but  tjie  Court  or  a  Judge  may  make  such  order  as  may 
relief.  a|)pear  just  to  prevent  any  defendant  from  being  embar- 

R  4  e'        I'assed  or  piit  to  expense  by  being  required  to  attend  any 
proceedings  in  such  action  in  which  he  may  have  no  interest. 

See  case  of  Child  v.  Stenning.(<f) 

Rule  5.         5.   The  plaintiff  may,  at  his  option,  join  as  parties  to 
Defendant,   the  Same  action  all  or  any  of  the   persons  severally,  or 
.several'        jointly  and  severally,  liable  on  any  one  contract,  including 
()rd.  ifi,       ])arties  to  bills  of  exchange  and  promissory  notes. 
R.  5,  E.  j^gg  Chancery  Order  28,  27  IMarch,  184.3,  as  to  defendants 

(c)  See  Salvi(li;e  v.  Ilvde,  5  Madd.  138,  j'lr  Sir  John  Leacli. 

(d)  Child  V.  Stcnning"  L.  R.,  5  Ch.  D.,  G95;  25  W.  11.,  51'J  A.  C. 


PARTIES.  00/ 

jointly  or  severally  liable,  and  cases  collected  in  Plunier  v.    Order  15. 
Gregory,  (e) 

6.  Where  in  any  action,  whether  founded  upon  contr;\ct  kule  0. 
or  otherwise,  the  plaintiff  is  in  doubt  as  to  the  person  Joinder  of 
from  whom   he   is  entitled  to  redress,  he  may,  in   such  f,f''f",f'^"* 

,  "  .111  Ctlhc  01 

manner  as  hereinafter  mentioned,  or  as  may  be  prescribed  doubt. 
by  any  special  order,  join  two  or  more  defendants,  to  the  Ord.  le, 
intent  that  in  such  action  the  question  as  to  which,  if  ^'  ^'  ^■ 
a.ny,  of  the  defendants  is  liable,  and  to  what  extent,  may 
he  determined  as  between  all  parties  to  the  action. 

A  plaintiff  had  always  (at  least  in  actions  of  tort)  the  option 
of  joining  any  person  as  a  defendant  at  the  peril  of  costs, 
ex.  gr.,  where  a  nuisance  is  committed  or  an  act  of  negligence, 
either  by  the  owner  of  a  house,  or  a  contractor  executing 
work  for  him,  or  a  sub-contractor,  to  whom  it  has  been  sub- 
let, and  it  is  doubtful  which  of  them  is  answerable  for  the 
injury  done,  but  it  is  difficult  to  see  what  advantai^e  the  per- 
mission  of  the  Court  will  confer  on  a  plaintiff  making  such  a 
joinder,  as  he  must  inevitably  bear  the  costs  of  any  defendant 
against  whom  he  fails  to  establish  a  liability.(/)  However, 
the  Court  will  seldom  strike  out  the  name  of  any  defendant 
beforehand. (<r)  Under  this  rule  a  plaintiff  is  entitled  to  claim 
alternative  relief  against  one  or  other  of  several  defendants. (A) 

3.  Persons  in  a  Repi'esentative  Capacity  or  under 
Disability. 

7.  Trustees,  executors,  and  administrators  may  sue  and  rule  7. 
be  sued  on  behalf  of  or  as  representing  the  property  or  Trustees 
estate  of  which  they  are  trustees  or  representatives,  with-  *°  repre- 
out  joining  any  of  the  parties  beneficially  interested  in  ficiaries. 
the  trust  or  estate,  and  shall  be  considei'ed  as  representmg  ord.  i(3, 
such  parties  in  the  action  ;  but  the  Court  or  a  Judge  may,  i^-  <■.  E. 
at  any  stage  of  the  proceedings,  order  any  of  such  pai'ties 

to  be  made  parties  to  the  action,  either  in  addition  to  or  in 
lieu  of  the  previously  existing  parties  thereto.  -. 

The  Chancery  (Ire.)  Act,  1867,  s.  10,  is  to  the  like  effect. 

In  an  administration  suit,  where  the  trustee  of  the  will  was 
sole  defendant  and  the  title  of  the  plaintitFwho  claimed  to  be 
beneficially  entitled,  was  doubtful,  the  person  who  was  inte- 
rested in  disputing  plaintiff's  title  was  ordered  to  be  made  a 
defendant.  (?) 

(e)  Plumer  v.  Gregory,  L.  K.,  18  Eq  ,  G:i7,  V.C.  H. 

(/)  See  Marsh  v.  Dunlop,  21  Sol.  Jour.  75. 

((/)  Anon.  W.  N.,  1875,  205,  Lush,  J. 

(/i)  Honduras  Inter-Oceanic  Kailwav  Co.  v.  Le  Fevre  Tucker,  L.  IJ., 
2  Ex.  D.  301,  25  W.  R.  310,  A.  C.  ;  andsee  Manchester  and  Sliertieid 
Railway  Co.,  &c.,  v.  Brooke,  L.  K.,  2  Ex.  D.  243,  25  W.  R.  413 

(i)  Day  v.  Ratcliffe,  24  W.  R.  844,  jNI.  R.  Sec;  as  to  adxeise 
interests,  M'Dermott  v.  Caldwell,  Ir.  Rep.  10,  Eq.  372.  V.  C. 

2  A3 


538 


PAETIES. 


Order  15. 

IlULE  s. 

Jlarried 
\vomeu 

JUKI 

infants, 
Iiow  to  sue 
and  be  sued. 

Ord.  1 6, 
R.  8,  E. 


Alarried 
•women. 


8.  Married  womeu  and  infants  may  respectively  sue  as 
plaintiiFs  by  tlieir  next  friends,  in  the  manner  practised  in 
the  Court  of  Chancery  before  the  passing  of  this  Act ; 
and  infants  may,  in  like  manner,  defend  any  action  by 
their  guardians  appointed  for  that  piirpose.  Married 
women  may  also,  by  the  leave  of  the  Court,  or  a  Judge, 
sue  or  defend  without  their  husbands  and  without  a  next 
friend,  on  giving  such  security  (if  any)  for  costs  as  the 
Court  or  a  Judge  may  require. 

The  practice,  as  to  suits  by  married  women  and  infants 
cari'ied  on  by  their  next  friends,  is  borrowed  from  that  of  the 
Court  of  Chancery. 

As  to  filing  the  consent  in  writing  of  the  person  named  as 
next  friend  to  a  married  woman  or  an  infant,  see  Chan.  (Ire.) 
Act,  1867,  s.  62.  _ 

As  regards  actions  on  behalf  of  infants,  the  infant's  father 
being  his  natural  guardian  is  the  proper  jserson  to  act  as  his 
next  friend  unless  disqualified  by  interest  or  otherwise,  or  un- 
willing to  act  and  his  name  has  been  substituted  for  that  of 
another  person  who  intervened  on  behalf  of  the  infant  without 
communication  with  his  father,  (?«) 

As  regards  married  women,  in  ordinary  cases  they  must  sue 
by  a  next  friend,  (o)  and  he  must  be  a  person  of  substance(/<) 
but  whei'e  she  cannot  procure  such  she  has  been  allowed  to 
sue  without  a  next  friend  and  to  prosecute  her  suit  in  forma 
pauperis.  (5-) 

The  latter  part  of  this  rule  seems  to  recognise  this  practice 
and  see  as  to  action  by  a  married  woman  after  a  divorce 
a  men.sd  et  thoro.(r) 

A  married  woman  cannot  be  sued  without  her  husband, 
except  by  leave  of  the  court,  and  even  in  respect  of  her 
separate  property,  her  husband  or  her  trustee  should  be  it 
seems  joined  with  her.(s)  As  to  arrest  of  a  man-ied  woman 
see.(<)  As  to  indorsement  on  wi-it  to  charge  her  separate 
estate  see  cases  below.(M)  And  as  to  her  answering  separately 
by  leave  see.(i') 

(?0  Woolf  V.  Eemberton,  L.  R.,  6  Chan.  D.  19,  A.  C. 

(0)  See  1  Daniel'.s  Chan.  Prae.  Ill,  4th  Ed. 

{]))  See  Carnegie  r.  Baird,  Ir.  Rep.  7,  Eq.  406,  V   C. 

((/)  See  1  Daniel  Ch.  Pr.,  supra. 

(/•)  Power  V.  Cook,  Ir.  Rep.  4.  Com.  Law  247,  Q.  B.  D. 

(s)  Ochse  V.  Redfern,  ?0  Sol.  Jour.,  560  Q.  B.  D.,  hut  see  Nagle  v. 
O'Donnell,  Ir.  Rep.  7  Com.  Law  7!\  C.  P.  where  sued  for  debt  con- 
tracted before  marriage ;  and  see  Riordan  t\  Walsh,  Ir.  Itop.  7  Cum.  Law. 
153,  Ex.,  a  case  of  an  ejectment,  and  as  to  petitions,  see  Ducdas' 
Trusts   Ir.  Law  Times  117,  M.  R. 

(<)  Moore  i-.  Elliott,  Ir.  Rep.  5  Com.  Law  501,  Ex. 

(«)  Buttenvorth  v.  Tee  and  Wife,  W.  N.,  1876,  0,  20  Sol.  Jour. 
108,  Quain,  J.  Hancock  v.  De  Niceville,  W.  N.,  1875,  204  and  230, 
Anon.  ^V.  N.,1876,  22. 

(r)  Armstrong  v.  Crawlev,  Ir.  Rep.  9,  Eq.  509,  V.  C. ;  English  v. 
Chute,  Ir.  Rep.  6,  Eq.  338,  V.  C. 


PAETIES.  531) 

Infants  can  in  no  case   sue  without  a  next  friencl(?i)  and    Order  15. 
Avben  a  defendant  he  must  appear  and  defend  by  his  guardian  j^f^ms, 
ad  litem  appointed  in  that  behalf  by  the  Court. 

If  an  infant  does  not  appear,  the  phiintifF  before  he  can  pro- 
ceed to  have  judgment  by  default,  under  Order  XII  ,  I\.  1 ,  ante, 
must  first  have  a  guardian  ad  litem  appointed  for  the  infant. 

The  guardian  ad  litem  of  an  infant  defendant  is  competent  to 
give  consent  as  to  taking  evidence  under  Order  xxxvi.,  R.  1, 
infra,  (v)      Where  an  ap.pearance  is  entered  for  an  infant  by     I 
solicitor  gratis,  a  guardian  ccZ  litem  rasty  be  appointed  for'hnn    / 
on  his  own  application,  though  he  has  not  been  served  with 
writ.{?c) 

As  to  application  to  appoint  next  friend,  see  cases  in  note.(a.) 

The  appointment  should  be  made  and  name  used  according  to 
Chancery  practice  before  the  bill  was  tiled,  though  when  a 
mistake  occurred  as  to  the  age  of  the  infant  the  bill  was 
amended.  (2/) 

In  Common  Law  actions  it  was  sufficient  to  insert  the  name 
when  filing  the  summons  and  plaint  as  a  pleadiug.(2:) 

The  guardian  of  a  minor  appointed  by  a  Judge  of  the 
Chancery  Division  in  a  minor  matter,  is  not  constituted 
guardian  ad  litem  in  a  suit,  but  the  latter  must  be  appointed 
by  the  branch  of  the  Court  to  which  the  suit  is  attached,  (a) 


9.  In  any  case  in  which  the  right  of  an  heir-at-law  or 


Rule  9. 

the  next  of  kin  or  a  class  shall  depend  upon  tlie  construe-  gemativea 
tion  which  the  Court  may  put  upon  an  instrument,  and  of  classes. 
it  shall  not  be  known  or  be  difficult  to  ascertain  Avho  is  Ord.  le, 
or  are  such  heu--at-law  or  next  of  kin  or  class,  and  the  ^'  ^'  ^'  ^' 
Court  shall  consider  that  in  order  to  save  expense  or  for 
some  other  reason  it  will  be  convenient  to  have  the  ques- 
tion or  questions  of  constiaiction  determined  before  such 
heir-at-law,  next  of  kin,  or  class  shall  have  been  ascertained 
by  means  of  inquiry  or  otherwise,  the  Court  may  appoint 
some  one  or  more  person  or  persons  to  represent  such 
heii"-at-law,  next  of  kin,  or  class,  and  the  judgment  of  the 
Court  in  the  presence  of  such  person   or  persons  shall 
be  binding  upon  the  party  or  parties  or  class  so  repre- 
sented. 


(m)  See  however  Hunter  v.  Hunter,  Ir.  Eep.  3  Com.  Law,  40  C.  P. 

(v)  Knatchfull  v.  Fowle,  L.  E.,  1  Chan.  D.  604,  24  W.  E.  OSIJM.E.; 
Fryer  v.  Wiseman,  24  W.  E.  205,  20  Sol.  Jour.  211,  V.  C.  H. 

(w)  Lloyd  V.  Lord  Eossmore,  Ir    Eep.  9,  Eq.  488,  V.  C. 

(a;)  PiOnayne  v.  Perrin,  10  Ir.  Com.  Law  Eep.,  App.  36,  Q.  B  ; 
Pluuket  V.  bovle,  6  Jr.  Jur.  N.  S.,  381  E.  See  Ferguson  v.  Wilson, 
4  Ir.  Jur.  376;"  Ponsonby  v.  Flvnn,  2  Ir.  Jur.  24G,  Q.  B. 

(j/)  Flight  V.  Bolland,  4  Euss.  298. 

(z)  Grady  v.  Himt,  3  Ir.  Com.  Law.  E  522,  6  Ir.  Jur.  233,  C.  P.  ; 
see  Phillips  v.  M'Evov,  7  Ir.  Jur.  Ill  C.  P. 

(a)  Smith  v.  Smitli,  Ir.  Eep.  3  Eq.  19  V.  C. 


540 


PARTIES. 


Order  15. 

Numerous 
parties. 


The  Schedule  Rule  20  above,  corresponding  to  the  English 
Order  xvi.,  K.  9,  jirovides  that  where  there  are  numerous 
jjurtles  having  the  same  interest  in  one  action,  one  or  more  of 
such  parties  may  sue  or  be  sued,  or  may  be  authorized  by  the 
Court  to  defend  on  behalf  of  all  parties  so  interested. 

This  adopts  somewhat  the  Chanceiy  procedure  in  creditors' 
suits,  and  has  been  applied  in  a  Common  Law  action  by  one  of 
several  underwriters  interested  in  a  ship  which  had  been  lost, 
suing  on  behalf  of  the  others  whose  names  probably  the  plain- 
tiff did  not  know.(Z') 

See  order  for  appointment  of  persons  to  represent — 1,  heir- 
at-law;  2,  next  of  kin  at  death;  3,  several  other  classes.(c) 


Rule  10. 
Partners 
to  sue  and 
be  sued  in 
li;nue  of 
linu. 

Ord.  IG, 
l£.  10,  E. 


Rule  11. 

Suing  a 
firm. 

Ord.  IC, 
R.  10,  A.  E 


4.  Partners. 

10.  Any  two  or  more  ])ersons  claiming  or  being  liable 
as  co-partners  may  sue  or  be  sued  in  the  name  of  their 
respective  firms,  if  any;  and  any  party  to  an  action  may 
in  such  case  apply  by  summons  to  a  judge  for  a  statement 
of  the  names  of  the  persons  who  are  co-partners  in  any 
such  firm,  to  be  furnished  in  such  manner,  and  verified  on 
oath  or  otherwise,  as  the  Judge  may  dii-ect. 

See  also  Order  vi.,  R.  2,  ante. 

An  order  to  furnish  the  names  of  the  co-partners  has  been 
made  after  judgment  against  them.(fi) 

This  rule  was  held  not  to  be  applicable  where  plaintiff  sued 
on  behalf  of  himself  and  all  other  persons  interested  m  the 
subject  of  the  action. (e)  An  order  for  an  attachment  for 
neglect  to  comply  with  an  order  to  furnish  names  is  not  one  to 
be  enforced  against  the  solicitor,  under  Order  xxx.,  R.  21, 
iiifra.if) 

When  the  names  of  the  partners  are  declared  the  action 
proceeds  as  if  they  had  been  named  plaintiffs  in  the  writ,  but 
the  proceedings  may  be  continued  nevertheless  in  the  name  of 
the  firm;  see  Ord.  vi.,  R.  2,  ante. 

Applications  for  a  statement  of  the  names  of  the  persons  who 
are  co-partners  in  any  firm  under  this  rule  are  to  be  made  by 
summons  at  Chambers,  Ord.  liil.,  R.  2  (3). 

11.  Any  person  carrying  on  business  in  the  name  of  a 
firm  apparently  consisting  of  more  than  one  person,  may 
be  sued  in  the  name  of  such  firm. 

(i)  See  Leathley  v.  Macandrew,  W.N.  1875,  2.59  ;  20  Sol.  Jour.  100; 
and  see  DeHart  'v.  Stevenson,  L.  R.,  1  Q.  B.  D.  313,  24  W.  R.  307; 
and  see  as  to  effect  of  a  defence  thereto,  Leathley  v.  Macandrew,  AV.  N. 
liS7G,  38;  20  Sol.  Jour.  259,  Lindley,  J. 

(c)  fn  re  Peppitt's  Estate,  Chester  v.  Phillips,  L.  R.,  4  Chan.  D.  230, 
25  \V.  I!.  211,  y.C.B. 

('/■)  Lynch  r.  Oversall  Coal  Cy.,  20  Sol.  Jour.  160,  Iluddlestone,  B. 

(')  Leathley  v.  MacAndrew,  W.  N.  1S75,  259. 

(/;  Pike  V.  Frank  Keene,  24  W.  R.  322,  W.  N.  187G,  30  Ex.D. 


PARTIES.  541 

5.  Proceedings  hy  oiie  of  a  Class.  Order  15. 

1 2.  Suljject  to  the  provisions  of  the  Act  and  these  Rules,    Rule  12. 
the  provisions  as  to  parties  contained  in  the  66th  section  One  of  a 
of  the  Act  30  and  31  Vic,  ch.  44,  shall  be  in  force  in  the  jj^^'-^g 
High  Court  of  Justice.  r.  u,  e. 

The  rules  of  the  Chan.  (Ire.)  Act,  1867,  s.  66,  are  incor- 
porated by  reference  and  made  of  force  in  actions  in  the  Iliyli 
Court,  so  far  that  it  will  not  be  competent  for  any  defendant 
to  take  objection  for  want  of  parties  in  any  of  the  cases  pro- 
vided for  in  the  section. 

6.  //  no  Personal  Pieprese'iiiatlon. 

13.  If  in  any  action  or  suit  before  the  Court  it  shall 
appear  to  the  Court  that  any  deceased  person  who  was  ,„.    ' 
interested  in  the  matters  in  question  has  no  legal  represen-  personal 
tative,  it  shall  be  lawful  for  the  Court  either  to  proceed  I'fpresen- 
in  the  absence  of  any  person  representing  the  estate  of  ^^j  /  ' 
such    deceased    person,    or    to    appoint    some    person   to  is67,  s.  110. 
represent  such  estate  for  all  the  purposes  of  the  suit  or 

other  proceeding,  on  such  notice  to  such  person  or  per- 
sons, if  any,  as  the  Coui't  shall  think  tit,  either  specially, 
or  generally  by  public  aclvei'tisements ;  and  the  order  so 
made  by  the  Court,  and  any  orders  consequent  thereon, 
.  shall  bind  the  estate  of  such  deceased  person  in  the  same 
manner  in  every  respect  as  if  there  had  been  a  duly  con- 
stituted legal  personal  representative  of  such  deceased 
person,  and  such  legal  pei-sonal  representative  had  been 
a  party  to  the  suit  or  proceeding,  and  had  duly  appeared 
and  submitted  his  rights  and  interests  to  the  protection 
of  the  Coui't. 

This  rule  is  borrowed  from  the  Chan.  Ire.  Act,  18^7,  s.  110, 
with  no  variation  other  than  the  addition  of  the  word  "  action  " 
to  "  suit."  Where  a  plaintiff  Avas  equitable  assignee  of  a  policy 
of  insurance  in  payment  of  a  debt  and  sued  the  insurance 
company  after  the  death  of  the  assignor,  the  assured,  having 
no  personal  representative,  and  the  debt  due  to  plaintiff  far 
exceeding  the  sum  assured,  the  Court  dispensed  with  one  being 
raised  and  proceeded  in  his  absence. (</) 

7.  Amending  as  to  Parties. 

14.  Any  application  to  add  or  strike  out  or  substitute    Rule  14. 
a  plaintiff  or  defendant  may  be  made  to  the  Court   or  a  Appli- 
Judge  at  any  time  before  trial  by  motion  or  summons,  or  add'ijanies 
at  the  trial  of  the  action  in  a  summary  manner.  or  strike 

out. 
'  Ord.  16, 

(9)  Crosslev  v.  City  of  Glasgow  Assurance  Company,  L.  R.,  4  Chan.  K.  14,  E. 
b.,'421 ;  25  \V.  R.,  264,  M.  R.     See  Hobbs  v.  KeadW.  N.  1875,  95, 
V.  C.  H. 


542 


PARTIES   AND   NOTICE   PARTIES 


Order  15. 


Rule  15. 

New  de- 
fendant, 
amending 
writ  and 
service. 
Old.  Ifi, 
R.  15,  E. 


Rule  1G. 
Amending 
cluim. 
Ord.  16, 
R.  16,  R. 


Rule  17. 

Notice  to 
third 
person 
liable  to 
contribute 
or  indem- 
nify. 

Ord.  16, 
R.  17,  E. 


See  case  of  a  defendant  added  after  order  made  for  consoli- 
dation of  two  actions,  (h) 

15.  "WTiere  a  defendant  is  added,  unless  otherwise 
ordered  hj  the  Court  or  Judge,  the  plaintiff  shall  file 
an  amended  copy  of  and  sue  out  a  new  writ  of  summons, 
and  serve  such  new  defendant  with  such  writ  or  notice 
in  lieu  of  service  thereof  in  the  same  manner  as  original 
defendants  are  served. 

Semhle  are  the  original  defendants  to  be  served  with  the 
amended  Avrit.  This  rule  has  been  considered  inapplicable  to 
a  consolidated  action.(i) 

16.  If  a  statement  of  claim  has  been  delivered  pre- 
viously to  such  defendant  being  added,  the  same  shall, 
unless  otherwise  ordered  by  the  Court  or  Judge,  be 
amended  in  such  manner  as  the  making  such  new  defen- 
dant 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  of  summons  or  notice  or  afterwards,  within  four  days 
after  his  appearance. 

8.  As  to  giving  Relief  over  to  a  Defendant  against  other 
Persons  not  Parties. 

17.  Where  a  defendant  is  or  claims  to  be  entitled  to 
contribution  or  indemnity,  or  any  other  remedy  or  relief 
over  against  any  other  person,  or  'where  from  any  other 
cause  it  appears  to  the  Court  or  a  Judge  that  a  question 
in  the  action  should  be  determined  not  only  as  between 
the  plaintiff  and  defendant,  but  as  between  the  plaintiff, 
defendant,  and  any  other  person,  or  between  any  oi-  either 
of  them,  the  Court  or  a  Judge  may  on  notice  being  given 
to  such  last-mentioned  person,  make  such  order  as  may 
be  proper  for  having  the  question  so  determined. 

The  prefix  to  this  class  of  rules,  "  As  to  giving  relief  over  to 
a  defendant  against  other  persons  not  parties  f  i.s  rather  calcu- 
lated to  mislead  the  reader  into  su})posuig  tliat  under  the  rules 
which  follow  (17  to  21)  any  actual  relief  ever  can  be  attained 
through  the  instrumentality  of  these  rules,  whereas  the  utmo>«t 
which  the  Courts  in  England,  under  identical  rules,  have  felt 
themselves  at  liberty  to  do,  is  to  bind  third  persons  in  a  future 
action  as  to  some  particular  fact  or  question,  being  one  in  a 
series,  forming  an  important,  generally  cardinal  fact,  in  ques- 


{k)  In  re   Wortley,  Culley  v.  CuUey,   L.  K.,   4  Cbau.  D.,   180,  25 
W.  U.,  2t>5,  M.  li. 
(0  lb. 


PARTIES   AND   NOTICE   PARTIES.  543 

tion  in  the  futui'e  action,  and  that  they  were  not  intended  to  Order  15. 
afford  relief  in  the  present  action  beyond  binding  him  to  that  jju^j;  17 
fact  as  an  established  fact.  The  subject  of  these  very  impor- 
tant rules  is  discussed  in  Chapter  xxv.,  p.  203,  ante,  and  it 
only  remains  to  note  here  any  cases  which  have  been  decided 
during  the  time  these  sheets  have  been  passing  through  the 
press. 

Notice  of  application  under  this  Rule  17,  to  have  a  question  Notice  of 
(or  fact)  in  the  action  determined,  as  between  the  plaintiff,  application, 
defendant,  and  a  third  person,  is  to  be  given  by  the  defendant 
to  the  plaintiff,  and  it  may  be  given  at  any  time  before  or  at 
the  trial  (see  Rule  19),  and  the  Court  or  Judge  if  satisfied 
that  such  a  question  in  the  action  should  be  so  determined, 
may  direct  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  application  be  made  at  the  trial  may  postpone 
the  trial  as  he  thinks  fit. 

Mr.  J.  Quain  thought  that  the  words  in  Rule  17  (E.  and 
Irish),  "  on  notice  being  given  to  such  last-mentioned  person," 
refer  to  the  notice  to  be  given  under  Rule  1 9  by  the  plaintiff, 
and  which  in  the  preliminary  application  under  sec.  1 7,  the 
defendant  merely  asks  the  judge  to  direct,  and  that  the 
preliminary  application  is  one  exclusively  between  the  moving 
defendant  and  the  plaintiff. (^) 

In  Macdonald  v.  Bode  (I)  Mr.  Justice  Lindley  considered 
that  these  rules  applied  to  the  case  of  a  defendant  Avishing  to 
raise  the  ([uestion  that  the  plaintiff  was  suing  as  a  trustee  for 
the  benefit  of  a  third  party,  whom  he  serves  with  notice  in 
order  to  establish  against  him  and  the  plaintiff  a  counter- 
claim. 

18.  Where  a  defendant  claims  to  be  entitled  to  contri-    Kule  is. 
hution,  indemnity,  or  other  remedy  or  relief  over  against  Service  of 
any  person  not  a  party  to  the  action,  he  may,  by  leave  ^^rdper- 
gf  the  Court  or   a  Judge,  issue  a  notice  to    that  effect,  son. 
stamped  with  tlie   seal  with  which  writs  of  summons  are  Ord.  ifi, 
sealed.     A  copy  of  such  notice  shall  be  filed  with  the      ■^^' 
proper  officer  and  served  on  such  person  according  to  the 
rules  relating  to  the  sei'vice  of  writs  of  summons.     The 
notice  shall  state  the  nature  and  grounds  of  the  claim,  and 
shall,  imless  otherwise  ordered  by  the  Court  or  a  Judge, 
be  sex-ved  within  the  time  limited  for  delivering  his  state- 
ment of  defence.      Such  notice  may  be  in  the  foi-m  or  to 
the  efiect  of  the  Form  No.   1  in  Appendix  (B)   hereto 
witb  such  variations  as  circumstances  may  require,  and 
therewith  shall  be    served   a  copy  of  the  statement  of 
claim,  or  if  there  be  no  statement  of  claim,  then  a  copy 
of  the  writ  of  summons  in  the  action. 


{k)  Pearson  v.  Lane,\V.  N.,1875,  248;  20  Sol,  Jour.  122,  Quain,  J. 
Q)  Macdonald  1;. Bode, W.  N,,  1876,  23;  20 Sol  Jour.  241,  Lindley,  J. 


514 


PARTIES   AND   NOTICE   PARTIES. 


Order  15. 

Rule  IS- 


Rule  19. 
Order  to 
serve  third 
jiersons 
to  bind 
them. 

Ord.  IG, 
i:.  19,  E. 


Rule  20. 
Appearance 
to  dispute 
plaintiS's 
claim. 
Ord.  16. 
R.  -'0,  E. 


The  notice  spoken  of  in  this  rule  and  given  as  No.  1  in  Ap- 
pendix 13,  is  from  the  defenthmt  to  the  third  person.  The 
notice  spoken  of  in  the  next  Kule  (19)  is  a  notice  from  the 
phiintifl"  to  the  third  person.  The  former  notice  sets  forth  the 
nature  of  the  chiini  made  by  the  phiintiff,  and  also  the  claim 
which  the  defendant  asserts  over  against  the  third  person  and 
apprizes  him  that  if  he  wit-hes  to  dispute  the  plaiutitf 's  claim  as 
against  the  defendant  he  should  enter  an  aj)pearance  in  the 
action,  and  in  default  of  his  doing  so,  he  Avill  not  be  entitled 
in  any  future  proceeding  between  the  defendant  and  him  to 
dispute  the  validity  of  the  judgment  in  the  present  action, 
whether  obtained  by  consent  or  otherwise. 

The  precise  purport  of  the  notice  intended  by  section  17  of 
both  orders  it  is  not  safe  to  determine.  Yet  it  is  impossible 
to  avoid  conjecturing  that  Kule  17  English  was  _ originally 
framed  with  a  nuich  wider  aspect  and  a  view  to  actual  immediate 
relief  to  be  given  in  the  action,  but  on  consultation  it  may  have 
been  cut  down  to  its  present  climensions,  so  tluit  its  value  and 
meaning  outside  the  notice  in  Kule  1  9  are  difficult  to  discern. (/«) 

Service  of  the  notice  effected  out  of  the  jurisdiction  in  the 
manner  prescribed  by  Ord.  11,  K.  1  E.  (Order  x.,  K.  1,  aide), 
will  be  sufficient.  (?j) 

19.  When  luider  Pvule  17  of  tliis  Order  it  is  made  to 
appear  to  the  Court  or  a  Judge  at  any  time  before  or  at 
the  trial  that  a  question  in  the  action  should  be  deter- 
mined, not  only  as  between  the  plaintiff  and  defendant, 
but  as  between  the  plaintiff  and  the  defendant  and  any 
other  person,  or  between  any  or  either  of  them,  the  Court 
or  a  Judge,  before  or  at  the  time  of  making  the  order 
for  having  stich  question  determined,  shall  direct  such 
notice  to  be  given  by  the  plaintiff  at  such  time  and  to 
sucli  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. 

Semhle  is  delivery  of  the  pleading  to  a  person  already  a 
defendant  sufficient  notice  under  this  rule.(o) 

20.  If  a  person  not  a  party  to  the  action,  who  is 
served  as  mentioned  in  Rule  18,  desires  to  dispute  the 
plaintiff's  claim  in  the  action  as  against  the  defendant 
on  whose  behalf  the  notice  has  been  given,  he  must  enter 
an  a[)pearance  in  the  action  within  eight  days  from  the 
service  of  the  notice.     In  default  of  so  doing,   he  shall 

(?«)  See  C.  B.  Kelly's  reading  on  these  Rules  in  Ilorwell  v. 
London  General  Omnibus  Company,  L.  R.,  2  Ex.  !>.,  3Go ;  25  W.  R., 
at  p.  G12. 

(«)  Swan.sea  Shiiipiiig  Cv.  v.  Duncan,  L.  R.,  1  (i.  B.  D.  G4-1 ;  25 
W.  R.  233,  A.  C. 

(o)  Sue  Evans  v.  Buck,  L.  R.,  4  Chau.  D.,  432  ;  25  W.  R.,  392 
M.  R. 


PARTIES   AND   NOTICE   PARTIES.  545 

be  deemed  to  admit  tlie  validity  of  the  judgment  Order  15. 
obtained  against  such  defendant,  whether  obtained  by 
consent  or  otherwise.  Provided  always  that  a  person 
so  served  and  failiaig  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 
tei-ms,  if  any,  as  the  Court  or  a  Judge  shall  think  fit. 

Where  service  of  the  notice  is  had  out  of  the  jurisdiction, 
the  order  directing  service,  fixes  the  time  for  appearance 
under  Ord.  x.,  R.  3,  ante,  and  if  it  allow  more  than  eight  days 
for  api^earance,  the  party  served  must  have  the  further  tinie 
to  ajDpear  accordingly,  (/j) 

21.  If  a  person  not  a  party  to  the  action  served  under    Rule-.m. 
these    Rules    appears  pursuant    to  the  notice,  the  party  T'lniutiff 
giving   the  notice  may  apply  to  the  Court  or  a  Judge  ^||^y  f^^ 
for  directions  as  to  the  mode  of  having  the  question  in  the  directions, 
action  determined ;  and  the    Court  or  Judge,  upon  the  Ord. !«. 
hearing    of  such    application,  may,    if    it    shall    appear  ^"  ^^' ^" 
desirable  so  to  do,  give  the  person  so  served  liberty  to 
defend  the  action  upon  such  terms  as  shall  seem  just, 
and  may  direct  such  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. 

A  person  served,  by  entering  an  appearance  does  not  waive 
the  question  of  the  propriety  of  the  notice  given  under  this 
order,  (y) 

Generally  speaking,  the  third  party  if  he  so  desires  it  will  be 
permitted  to  defend  the  action,  accepting  the  statement  of 
claim  as  it  stands,  if  plaintiff  dt-clines  to  deliver  another,  the 
third  party  bemg  allowed  to  deliver  a  statement  of  defence 
and  counter  claim  if  any  to  the  plaintiff  and  defendant. (r) 

If  the  original  defendant  disputes  the  plaintiff's  demand, 
the  plaintiif  must  prosecute  his  action,  but  if  the  original 
defendant  admits  his  liability,  whilst  the  third  party  disputes 
it,  the  defendant  must  still  remain  as  a  contesting  party.  If  the 
third  party  admits  the  cause  of  action  but  disputes  the  amount, 
the  original  defendant  may  be  wlthdra^vn  from  the  contest. (.v) 

(/y)  Swansea  Sliipping  Co.  v.  Duncan,  L.  R.,  1  Q.  B.  D.  044;  25 
W.  R.  233. 

(fi)  Beneeke  v.  Frost,  L.  R.,  1  Q.  B.  D.  419,  24  W.  R.  G99. 

(r)  See  Tebbs  v.  Lewis,  W.  N.,  1875,  260;  20  Sol.  Jour.  161, 
Huddlestoue,  B. 

(*•)  See  Commissioners  of  Waterford  y.  Yeale,  W.  N.  1S7G,  23;  20 
Sol.  Jour.  241,  Polluck,  B. 


546 


JOINDER   OF   CAUSES   OF   ACTION. 


Order  15. 
Rule  21. 


Order  16. 

Rule  1. 
Joinder  of 
several 
causes  of 
action, 
separate 
trial. 
Ord.  ]  7, 
li.  1,  E. 


Joinder 
of  actions. 


In  some  cases  the  third  party  disputing  the  liability  has 
been  allowed  to  substitute  his  own  name  for  that  of  the  plain- 
tiff, first  satisfpng  the  plaintiff 's  demand,  as  where  the  acceptor 
of  a  Bill  of  Exchange  being  sued  by  holder,  served  notice  on 
drawer  claiming  indemnity  from  him,  on  the  ground  of  partial 
failure  of  the  consideration  for  which  the  bill  was  given,  and 
offering  to  allow  plaintiff  to  enter  judgment  if  drawer  paid  that 
portion  of  the  amount  of  the  bill.  The  drawer  appeared  and 
denied  failure  of  consideration  and  paid  plaintiff  amount  of  his 
demand  in  full,  on  being  allowed  to  substitute  his  own  name 
as  plaintiff,  and  continue  the  action  against  the  defendant  to 
recover  the  sum  so  paid.  (.9) 

Where  the  action  was  for  not  accepting  goods  sold,  and 
defence  was  that  the  goods  were  bought  by  defendants  as 
brokers  for  third  persons  known  to  the  plaintiff  as  principals, 
also  that  the  goods  were  not  according  to  contract,  and  notice 
was  served  by  defendants  on  their  alleged  principals  claiming 
indemnity,  they  appeared  and  the  Court  ordered  the  statement 
of  claim  to  be  first  delivered  to  the  new  parties,  who  objected 
to  being  made  parties  on  the  ground  that  the  contract 
between  them  and  the  defendants  for  purchase  of  the 
goods,  was  not  the  same  as  that  between  the  plaintiffs  and 
defendants,  the  difference  being  as  to  the  quality  of  the 
articles  to  be  purchased,  the  Court  gave  them  liberty  to 
appear  at  the  trial  to  contest  the  single  question  as  to  the 
quality  of  the  goods,  and  to  be  bound  so  far  and  no  furthei".(^) 


Order  XVI. 
Joinder  of  Causes  of  Action. 

1.  Subject  to  the  following  Rules,  tlie  plaintiff  may 
unite  in  the  same  action  and  in  the  same  statement  of 
claim  several  causes  of  action,  but  if  it  appear  to  the 
Court  or  a  Judge  that  any  such  causes  of  action  cannot 
be  conveniently  tried  or  disposed  of  together,  the  Court 
or  Judge  may  order  separate  trials  of  any  of  such  causes 
of  action  to  be  had,  or  may  make  such  other  order  as 
may  be  necessary  or  expedient  for  the  separate  disposal 
thereof. 

At  common  law  from  recent  changes  in  Ireland,  causes  of 
action  of  whatever  kind  (except  ejectment)  might  be  joined, 
provided  they  were  by  and  against  the  same  parties  and  in  the 
same  right,  subject  however  to  the  power  of  the  court  to 
order  separate  records  to  be  made  up  and  separate  trials  to 
be  had  where  the  joinder  was  likely  to  prove  embarrassing.(M) 


f  s)  See  National  Provincial  Bank  of  England  i;.  Bradlev  Bridge  Co., 
W.'  N.,  187G,  G3  ;  20  Sol.  Jour.  297. 

(0  Benecke  v.  Fro.-^t,  L.  K.,  1  Q.  B.  D.,  419,  24  W.   R.  (]r,9. 

(?/)  See  Cantwell  v.  Cannock,  3  Ir.  Com.  L^  Rep.  78,  6  Ir.  Jur. 
lol,  Q.  B. 


JOINDER   OF   CAUSES   OF  ACTION.  547 

In  equity  if  the  plaintiff's  bill  sought  relief  in  respect  of  Order  16. 
several  matters  of  controversy  in  their  nature  separate  and 
distinct,  this  was  a  misjoinder  of  subjects  on  the  same  record, 
although  all  the  plaintiffs  and  all  the  defendants  might  have 
been  parties  to  the  whole  of  the  transactions  which  formed  the 
subject  of  the  suit.  Where  a  defendant  was  able  to  say  he  was 
brought  on  a  record  with  a  large  portion  of  which  he  had  no 
connexion  whatever,  this  was  properly  called  multifarious- 
ness, (u)  as  where  one  of  several  next-of-kin  of  an  intestate 
filed  a  bill  for  administration  of  the  estate  against  the  admin- 
istrator, and  at  the  same  time  sought  to  set  aside  a  deed  as 
against  the  other  defendants,  whereby  the  plaintiff  assigned  a 
portion  of  his  interest  in  the  estate  to  them  (ic)  A  more 
aggravated  form  of  this  fault  of  pleading,  was  presented  Avhei-e 
a  plaintiff  sought  to  assert  two  adverse  interests  in  the  same 
suit,  one  in  his  character  of  a  creditor  of  a  public  company, 
and  the  other  as  a  shareholder  in  the  same  company,  on  behalf 
of  himself  and  all  other  creditors  and  shareholders,  and  the  bill 
was  held  to  be  demurrable  both  for  misjoinder  and  multifarious- 
ness, (z) 

This  rule  seems  (subject  to  exceptions  afterwards  named) 
to  leave  it  optional  with  the  plaintiff  to  join  several  claims  in 
one  action,  but  he  cannot  be  compelled  to  do  so,  or  to  damage 
a  claim  for  one  substantial  cause  of  action  by  joining  it  with 
another  which  might  distract  the  attention  of  a  jury. 

2.  No  cause  of  action  shall,  unless  by  leave  of  the     Rcle2. 
Court  or  a  Judge,  be  joined  with  an  action  for  the  re-  Bent  with 
covery  of  land,  except  claims  in  respect  of  mesne  profits  ejectment. 
or  arrears  of  rent  in  respect  of  the  premises  claimed,  or  ^''^'  g' 
any  part  thereof,  and  damages  for  breach  of  any  contract 
under  which  the  same  or  any  part  thereof  are  held. 

This  follows  the  Com.  Law  Pro.  (Ire.)  Act,  1853,  s.  54,  and 
s.  195,  as  to  joinder  of  mesne  rates  with  an  ejectment  on  the 
title,  and  arrears  of  rent  to  ejectment  for  non-payment  of  rent. 
This  rule  extends  this  by  allowing  action  for  damages  for  breach 
of  any  contract  under  which  the  premises  are  held. 

Leave  of  the  Cowt  has  been  given  very  freely  where  the  action 
was  substantially  for  recovery  of  land,  to  add  claims  ancillary 
thereto  or  consequential  thereon,  ex.  gr.,  a  claim  to  establish 
title  to  real  estate  under  a  gift  in  a  will  was  allowed  to  be 
joined  with  a  claim  for  administration  of  the  real  and  personal 
estate  of  the  testator,  the  object  being  to  determine  the  con- 
struction of  a  gift  over,   comprising   both  real  and  personal 

(y)  Salvidge  v.  Hvde,  5  Mad.  138. 

Of)  Campbell  v.  Mackev,  1  Mvl.  &  C.  618. 

(a;)  Bouck  v.  Bouck,  L.'K.  2  Eq.  19,  M.  R. 

(y)  Ward  V.  Sittingbourne  and  Sheerness  Ry.  Co.,  L.  R.  9  Chan. 
488,  and  see  Hodgens  v.  Hodgens,  Ir.  Rep.  10  Eq.  4,  Chan.  A  p.  Ct., 
where  these  objections  are  verv  fully  discussed  ;  and  see  Ledwidge  v. 
Lynch,  Ir.  Rep.  11  Eq.  254,  V."  C. 


548 


JOINDER   OF    CAUSES    OF    ACTION. 


Order  16. 


Rule  3. 
As-ignee 
in  bank- 
ruptcy. 
Ord.  17, 
R.  3,  E. 

Rule  4. 
Husband 
and  wife. 
Ord.  17, 
R.  4,  E. 


Rule  .5. 
Executor. 
Ord.  1 7, 
K.  5,  E. 


Rule  6. 
Joint  and 
.-rvcral 
claims. 
Ord.  17, 
R.  6. 


est.ate  included  in  the  same  limitation, (?/)  and  a  claim  for 
administration  of  the  personal  estate  of  an  intestate  and  a  claim 
for  recovery  of  his  real  estate,  plaintiff  being  both  heir-at-law 
and  one  of  the  next-of-kin.  (::)  So  a  claim  for  recovery  of 
possession  of  land  and  one  for  an  injunction  to  restrain  one 
defendant  from  receivino;  the  rents,  and  for  a  Receiver,  and 
a  claim  for  delivery  and  cancellation  of  a  dec<l  under  which 
defendant  claimed  the  land.(o)  Again,  a  claim  for  possession 
of  a  set  of  chambers,  and  to  compel  defendant  to  execute  a 
deed  of  release  of  the  property  vested  in  him. (6) 

An  action  for  foreclosure  is  not  an  action  for  recovery  of 
land  within  this  Rule  2,  and  plaintiff  may  join  a  claim  for 
administration  of  the  trusts  of  a  mortgage  deed  to  secure  deben- 
tures with  a  claim  for  foreclosux-e  of  the  mortgage.(e) 

3.  Claims  by  an  assignee  or  trustee  in  bankruptcy  as 
such  shall  not,  unless  by  leave  of  the  Court  or  a  Judge 
be  joined  with  any  claim  by  him  in  any  other  capacity. 

4.  Claims  by  or  against  husband  and  wife  may  be  joined 
with  claims  by  or  against  either  of  them  separately. 

See  Com.  Law  Pro.  (Ire.)  Act,  1853,  s.  55. 

As  to  joinder  of  causes  of  action  against  husband  and  wife, 
see  cases  noted  below.((Z)  Where  a  wife  is  joined  with  her  hus- 
band, it  should  be  stated  in  what  right  or  interest  she  is  joined,  (e) 

5.  Claims  by  or  against  an  executor  or  administrator  as 
such  may  be  joined  with  claims  by  or  against  him  per- 
sonally, provided  the  hxst-mentioned  claims  are  alleged  to 
arise  with  reference  to  the  estate  in  respect  of  which  the 
plaintiff  or  defendant  sues  or  is  sued  as  executor  or 
administrator. 

It  was  not  permitted  at  common  law  to  join  claims  by  or 
against  an  executor  in  his  own  right  with  claims  arising  in  his 
representative  capacity,  unless  the  demands  in  both  cases 
when  recovered  would  be  assets. (/') 

C.  Claims  by  pi aintifl's  jointly  may  be  joined  with  claims 
by  them  or  any  of  them  separately  against  the  same 
defendant. 

0)  Whetstone  v.  Dewis,  L.  R.  1  Chan.  D.  1)11,  24  W.  K. !);!,  V.  ('.  H. 

(z)  Kitching  V.  Kitchuig,  W.  N.  1876,  225,  2-t  W.  R.  'JOl ;  20  Sul. 
Jour.  724,  M.  R. 

(a)  Cook  V.  Enchmarch,  L.  R.  2  Chan.  D.  Ill,  24  W.  R.  21)3,  M.  R. 
See  Allen  v.  Kennet,  24  \V.  R.  845  ;  20  Sol.  Jour.  (,'84,  'Sl.U. 

{}>)   Manestv  v.  Kenealv,  24  W.  K.  918  -,  20  Sol.  .l.uir.  211,  V.  0.  H. 

((■)  Tawell  V.  Slate  Co.',  L.  R.,  3  Chan.  1).  G2!l,  M.  \l. 

(d)  Copinger  v.  (iuirk,  4  Ir.  Com.  Law  Kc)).  44,  7  Ir.  Jur.  330,  C.P.; 
Cuming  V.  Montgonien^  Ir.  Rep.,  6  Com.  Law  170,  C.  P. 

(e)  Cahill  v.  M'Dowall,  13  Ir.  Com.  Law  Rep.  481,  7  Ir.  Jur.  N.  S. 
377,  C.  P.;  Sullivan  v.  Mason,  2  Jones,  141. 

(/■)  2  Wms.  Exors.  7th  Ed.,  p.  1872;  Ashby  v.  Ashbv,  7  li.  >.<: 
C.  444. 


JOINDER   OF   CAUSES    OF   ACTION.  549 

At  common  law  if  there  were  several  plaintiffs,  all  should  ha  Order  16. 
jointly  entitled,  in  order  to  recover  juduioent.  In  etjuity  the 
plaintiffs  should  have  a  common  interest  in  all  the  matters  com- 
prised in  the  suit.  The  present  Rule  6  is  a  corollary  to 
Ord.  15,  li.  1,  enabling  persons  to  be  joined  as  plaintiffs  in 
whom  the  right  to  any  relief  is  alleged  to  exist,  whether  jointly, 
severally,  or  in  the  alternative. 

7.  The  last  three  preceding  Rules  shall  be  subject  to  Rule  :. 
Eule  1    of   this    Order,    and    to    the    Rules    hereinafter  Restricting 

'  Ord.  17, 

contained.  r.  7,  e. 

8.  Any  defendant  alleging  that  the  plaintiff  has  united    Rcle  s. 
in  the  same  action  several  causes  of  action  which  cannot  ^e  confined. 
be  conveniently  disposed  of  in   one  action,  may  at  any  ord.  17, 
time  apply  to  the   Court   or  a  Judge  for  an  order  con-  R-  8,  E. 
fining  the  action  to  such  of  the  causes  of  action  as  may 

be  conveniently  disposed  of  in  one  proceeding. 

See  observations  on  joinder  of  actions,  as  against  defendants, 
in  Order  xv.  R.  3,  ante,  p.  535. 

9.  If,  on  the  hearing  of  such  application  as  in  the  last  Rlle  9. 
preceding  Rule  mentioned,  it  shall  appear  to  the  Court  or  Excluding 
a  Judge  that  the  causes  of  action  are  such  as  cannot  all  action 

be  conveniently  disposed  of  in  one  action,  the  Court  or  a  wlien  in- 
Judge  may  order  any  of  such    causes  of  action  to  be  ^°'^^''°'*'"  • 
excluded,  and  may  direct  the  statement  of  claim,  or,  if  ^^^  9^  g' 
no  statement  of  claim  has  been  delivered,  the  copy  of  the 
writ  of  svimmons,  and  the  indorsement  of  claim  on  tlie 
^\^^t  of  summons,  to  be  amended  accordingly,  and  may 
make  such  order  as  to  costs  as  may  be  just. 


Order  XYII. 

Actions  by  and  against  Lunatics  and  Persons  of  Unsound 

Mind.  Order  17. 

In  all  cases  in  which  lunatics  and  persons  of  unsound  Actions 
mind  not  so   found   by  inquisition    miglit   respectively  according 
before  the  passing  of  the  Act  have  sued  as  plaintiffs  or  eery  Rules, 
would  have  been  liable  to  be  sued  as  defendants  in  any 
action  or  suit,  they  may  respectively  sue  as  plaintiffs  in 
any  action  by  their  committee  or  next  friend  in  manner 
jjractised  in  the  Court  of  Chancery  before  the  passing  of 
the  said  Act,  and  may  in  like  manner  defend  any  action 
by  their  committees  or  guardians  appointed  for  that  pur- 
pose. 

A  suit  bv  a  lunatic  (so  found)  is  instituted  in  his  name  by 
the  committee  of  his  estate,  if  any,  and  if  none,  by  his  next 
friend. 


550 


PLEADINGS   GENERALLY. 


Order  17. 


Order  18. 

Ord.  10, 
R.  •-',  E. 
Delivery 
of  state- 
ment of 
claim  and 
defence. 


Persons  of  full  age  but  of  weak  or  unsound  mind,  but  not  so 
found  by  inquisition,  sue  by  their  next  friend,  and  the  appoint- 
ment is  made  similarly  to  thnt  of  an  infant,  see  ante,  p.  338-9. 
Where  two  persons  separately  filed  bills  as  next  friend  of  a 
person  of  unsound  mind,  the  Court  consolidated  the  suits. (g-) 

When  sued  as  delendants  they  must  defend  by  guardian  ad 
litem. 

So  where  in  the  pronjress  of  the  suit  a  party,  plaintiff  or 
defendant,  becomes  of  unsound  mind. (A) 

When  the  lunacy  ceases,  the  person  of  unsound  mind  may 
repudiate  the  proceedings. (i) 


To  be 
brief. 


Set-off 
or  counter- 
claim. 
Ord.  19, 
R.  3,  E. 


Order  XVTII. 

Pleadings  Generally. 

Schedule  Rules  on  Pleading. 

21.  Unless  the  defendant  in  an  action  at  the  time  of 
liis  appearance  shall  state  that  he  does  not  require  the 
delivery  of  a  statement  of  complaint,  the  plaintift'  shall 
within  such  time  and  in  such  manner  as  may  be  directed 
by  Rules,  deliver  to  the  defendant  after  his  appearance  a 
statement  of  his  complaint  and  of  the  relief  or  remedy  to 
which  he  claims  to  be  entitled.  I'he  defendant  shall 
within  such  time  and  in  such  manner  as  may  be  directed 
by  rules  deliver  to  the  plaintiff"  a  statement  of  his  defence, 
set-off",  or  counterclaim  (if  any),  and  the  plaintiff  shall  in 
like  manner  deliver  a  statement  of  his  reply  (if  any)  to 
such  defence,  set-off,  or  counterclaim.  Such  statements 
shall  be  as  brief  as  the  nature  of  the  case  -will  admit,  and 
the  Court  in  adjusting  the  costs  of  the  action  shall  inquire 
at  the  instance  of  any  party  into  any  unnecessary  pro- 
lixity, and  order  the  costs  occasioned  by  such  prolixity 
to  be  borne  by  the  party  chargeable  witli  the  same. 

22.  A  defendant  in  an  action  may  set-off",  or  set  up,  by 
way  of  counterclaim  against  the  claim  of  the  plaintiff", 
any  right  or  claim,  whether  such  set-olF  or  counterclaim 
sound  in  damages  or  not,  and  such  set-off'  or  counter- 
claim shall  have  the  same  effect  as  a  statement  of  claim  in  a 
cross  action,  so  as  to  enable  the  Court  to  pronounce  a 
final  judgment  in  the  same  action,  both  on  the  original 
and  on  the  cross-claim.  But  the  Court  or  a  Judge  may, 
on  the  application  of  the  plaintiff"  before  trial,  if  in  the 

Cv)   Vane  v.  Vane,  W.  N.,  1S7G,  90,  U.  K. 

{k^  See  Wolfe  v.  Wolfe,  Ir.  liep.,  9  Eq.  392,  V.  C. ;  .■see  Kxp.  J. 
White,  Ir.  Rep.  6  Eq.  82,  L.  C,  where  a  guardian  appointed  for  a 
clerfTvman  for  the  purpose  of  commuting  his  annuity. 

(()  See  Beall  v.  Smith,  L.  E.,  9  Chau.  95.  See  Blyth  v.  Green,  W.  N. 
1S7G,  214,  M,  11, 


PLEADINGS   GENERALLY.  551 

opinion  of  the  Coiii't  or  Judge  such  set-off  oi'  coimter-    Order  18. 
claim  cannot  be  conveniently  disposed  of  in  the  pending- 
action,  or  ought  not  to  be  allowed,  refuse  permission  to 
the  defendant  to  avail  himself  thereof. 

23.  Every  pleading  shall,  unless  when  otherwise  pro-  Pleading, 
vided  by  Rules,  contain  as  concisely  as  may  be  a  statement  flints' "^ 
of  the  material  fiicts  on  which  the  ])arty  pleading  relies,  Ord.  lo, 
but  not  the  evidence  by  which  they  are  to  be  proved,  i^-  ^.  E. 
such  statement  being  divided  into  paragraphs,  numbered 
consecutively,  and  each  paragraph  containing,  as  nearly 

as  may  be,  a  separate  allegation.  Dates,  sums,  and 
numbers  shall  be  expressed  in  figures  and  not  in  words. 
Signature  of  counsel  shall  not  be  necessary. 

24.  Every  statement  of  claim  shall  state  specifically  i^eiief 
the  relief  which  the  plaintiff  claims,  either  simply  or  in  \^ '      ' 
the  alternative,    and   may   also    ask  for   general   relief,  r,  g,  e.'  . 
And  the  same  rule  shall  apply  to  any  counterclaim  made, 

or  relief  claimed  by  the  defendant,  in  his  statement  of 
defence.  If  the  plaintifl^'s  claim  be  for  discovery  only, 
the  statement  of  claim  shall  show  it. 

25.  It  shall  not  be   sufficient  for  a  defendant,  unless  ^o  general 
where  otherwise  provided  by  Rules,  in  his  defence  to  ^^'^I^'y''' 
deny  generally  the  facts  alleged  by  the  statement  of  claim,  r.  20,  E. 
or  for    a    plaiiititf  in  his  reply  to   deny    generally    the 

facts  alleged  in  a  defence  by  way  of  counter-claim,  but 
each  party  must  deal  specifically  with  each  allegation  of 
fact  of  which  he  does  not  admit  the  truth. 

2G.  "When  a  contract  is  alleged  in  any  pleading,  a  bare  Denial  of 
denial  of  the  contract  by  the  opposite  party  shall  be  con-  contract, 
strued  only  as  a  denial  of  the  making  of  the  contract  in  S'^'Jj'g^'^j^ 
fact,  and  not  of  its  legality  or  its  sufficiency  in  law,  whether 
with  reference  to  the  Statute  of  Frauds  or  otherwise. 

27.  Where  in  any  action  it  appears  to  a  judge  that  the  Issuos 
statement  of  claim  or  defence  or  reply  does  not  sufficiently  ^^"•'^''• 
define  the  issues  of  fact  in  dispute  between  the  parties,         ^'''    ' 
he  may  direct  the  parties  to  prepare  issues,  and  such 

issues  shall,  if  the  parties  difier,  be  settled  by  the  Judge. 

28.  The  Court  or  a  Judge  may,  at  any  stage  of  the  Amend- 
proceedmgs,  allow  either  party  to  alter  his  statement  of  ^'^"^o^ 
claim  or  defence  or  reply,  or  may  order  to  be  struck  out  qJ^  27  e 
or  amended  any  matter  in  such  statements  respectively, 
which  may  be  scandalous  or  which  may  tend  to  prejudice, 
embarrass,  or  delay  the  fair  trial  of  the  action,  and  all 

such  amendments  shall  be  made  as  may  be  necessary  for 
the  purpose  of  determining  the  real  questions  or  question 


552 


PLEADINGS    GENERALLY, 


Order  18.  in  controversy  between  the  parties ;  and  all  parties  shall 
have  also  such  further  powers  of  amendment  as  may  be 
prescribed  by  rules. 

Demurrer. 

29.  A  demurrer  to  any  statement  maybe  filed  in  such 
manner  and  form  as  may  be  prescribed  by  niles. 

30.  "Where  any  action  is  brought  to  recover  a  debt  or 
damages,  any  defendant  may  at  any  time  after  service  of 
the  writ,  and  before  or  at  the  time  of  delivering  his 
defence,  or  by  leave  of  the  Court  or  a  Judge  at  any  later 
time,  pay  into  Court  a  sum  of  money  by  way  of  satisfaction 
or  amends.  Payment  into  Court  shall  be  pleaded  in  the 
defence,  and  the  claim  or  cause  of  action  in  respect  of 
which  such  payment  shall  be  made  shall  be  specified 
thei-ein. 

31.  The  parties  may,  after  the  writ  of  summons  has 
been  issued,  concur  in  stating  the  questions  of  law  arising 
in  the  action  in  the  form  of  a  special  case  for  the  opinion 
of  the  Court. 


Demurrer. 


Pleading 
I'aynieut 
Ord.  30, 
K.  1,  E. 


Special 
case. 
Ord.  34. 


Rule  1. 

New  Rules 
of  pleading. 


Rule  2. 
Printing. 


Rule  3. 
Distinct 
claims  in 
new  para- 
graphs. 
Ord.  I'J, 
R.  9,  E. 


Order  XVIII. 
Hales  of  Court. 

1 .  The  following  rules  of  pleading,  in  addition  to  those 
contained  in  the  Act,  shall  be  substituted  for  those  here- 
tofore used  in  the  High  Court  of  Chancery  and  in  the 
Courts  of  Common  Law. 

Upon  the  subject  of  the  forms  and  times  for  pleading,  see 
Chapter  li.,  371,  ante,  and  as  to  the  new  rules  of  pleading 
generally,  see  Chapter  Hi.,  p.  379. 

2.  Every  pleading  in  the  Chancery  Division  which 
shall  contain  more  than  ten  folios  of  seventy-two  words 
each  (any  figure  being  counted  as  one  word)  shall  be 
printed,  and  every  other  pleading  in  that  division  and 
every  pleading  in  the  other  divisions  may  be  either  printed 
or  written,  or  partly  printed  and  partly  written. 

3.  Where  the  plaintiflT  seeks  relief  in  respect  of  several 
disrinct  claims  or  causes  of  complaint  founded  u])on 
separate  and  distinct  facts,  they  shall  be  stated,  as  far  as 
may  be,  in  separate  paragi'aj)hs  consecutively  numbered. 
And  the  same  rule  shall  apjily  where  the  defendant  relies 
upon  several  distinct  grounds  of  defence,  set-off,  or  counter- 
claim founded  upon  separate  and  distinct  facts. 

As  to  counterclaims,  see  Chapter  xxiii.,  p.  190,  ante.(ii) 

('0  Harris  v.  Gamble,  L.  K., 6  Chan.  D.,  748,  V.  C.  H. 


PLEADINGS   GENERALLY.  553 

4.  Whei-e  any  defendant  seeks  to  rely  upon  any  facts  as    Order  18. 
suppoi'ting  a  right  of  set-off  or  counter-claim,  he  shall,     rcle  4. 
iu  his  statement  of  defence,  state  specifically  that  he  does  Counter- 
so  by  way  of  set-off  or  counter-claim.  ficts'in 

A  defence  by  way  of  set-off  or  counterclaim  should  follow  Ord.  i'>,^ 
one  of  the  forms  given  in  the  Appendix  C,  Nos.  5,  6,  and  7,  and  ^-  ^^<  ^• 
begin  thus  "  By  way  of  set-off  and  counterclaim  the  defendant 
claims    as    follows": — The    facts    intended    to    support   the 
counterclaim  should  be  specifically  stated  in  it,  and  by  way  of 
repetition  if  alreaily  set  forth  as  another  defence.(6) 

It  should  be  delivered  in  the  same  time  and  manner  as  an 
ordinary  defence.  A  defence  entitled  "  Defence  and  counter- 
claim" will  answer  for  a  set-off. (c) 

5.  If  either  party  wishes  to  deny  the  right    of  any    rule  5. 
other  party  to  claim  as  executor,  or  as  trustee,  whether  Title  of 
in    bankruptcy    or  otherwise,    or    in  any   representative  ^^'^'^^jg^^ig^j 
or  other  alleged    cajjacity,    or    the    alleged  constitution  ^^_^  ^^ 
of  any  partnership  firm,  he  shall  deny  the  same  specifi-  r.  h,  e. 
cally. 

See  Com.  Law  Pro.  (Ire.)  Act,  1853,  s.  68. 

6.  ISTo  plea  or  defence  shall  be  pleaded  in  abatement.        rule  e. 

PI  Gel  in 
Pleas  in  abatement  were  abolished  at  Common  Law  by  the  abatement. 
Com.  Law  Pro.  (Ire.)  Act,  1853,  s.  84,  as  regards  misjoinder,  q^.^  ^^ 
non-joinder,   and  misnomer.     They  were  open  in  some  few  and  12,  E. 
cases,   as  where  an  infant  sued  by  attorney,  (^)  or  where   a 
married  woman  was  sued  without  her  husband. 

.Pleas  to  the  jurisdiction  have  also  ceased,  but  the  benefit  of 
them  may  be  had  by  application  to  stay  proceedings,  (e) 

7.  N"o  new  assignment  shall  hereafter  be  necessary  or     rule  7. 
used.     But  everything  which  has  heretofore  been  alleged  New 

by  way  of  new  assignment  may  hereafter  be  introduced  assignment. 
by  amendment  of  the  statement  of  claim. 

As  to  occasion  for  new  assignments  formerly,  see  cases  in 
note.(/) 

(6)  HiUman  v.  Mayhew,  24  W.  R.,  585,  C.  P.  D. ;  see  Child  v. 
Stenning,  L.  R.,  5  Chan.  D.,  695,  25  W.  R.  519 ;  Crowe  v.  Barnicott, 
L.  R.,  6  Chan.  D.,  753. 

(c)  Wood  V.  Anglo- Italian  Bank,  20  Sol.  Jour.  332,  C.  P  D. ;  Crowe 
V.  Barnicott.  L.  R.,  6  Clian.  D.  753,  25  W.  R.  789  Fry,  J. 

(d)  See  Hunter  v.  Hunter,  Ir  Rep.,  3  Com.  Law,  40  C.  P. ;  Preston 
V.  Lament,  L.  R.,  1  Ex.  3G1,24  W.  R.  928. 

{e)  See  .Jenney  v.  Bell,  L.  R.,  2  Chan.  D.,  547;  24  W.  R.  550, 
V.  C.  M. 

(/)  Keany  v.  Tottenham,  Ir.  Rep.  2  Com.  Law,  45  Ex.  Ch.iii. ; 
Lane  v.  Hone,  Ir.  Rep.,  6  Com.  Law,  231  C.  P. ;  Treacy  v.  Criucu,  1,. 
Kep.  1  Com.  Law,  576  Ct.  Ex. 

2  B 


554j 


PLEADINGS    GENERALLY. 


Ord.  li». 
Kule  6, 


Order  18.  The  plaintiff  is  now  to  avoid  the  necessity  for  new  assign- 
ment  by  making  his  claim  specific  and  circumstantial,  and 
amending  it  if  necessary  ;  see  Appendix  C,  Form  18  of  defence 
to  an  action  of  trespass,  q.  c.  fregit.{g) 

Rule  8.  g.  No  defendant  in  an  action  for  the  recovery  of  land 
Defence  in  ^yj^Q  jg  j^  possession  by  liimself  or  his  tenant  need  plead 
ejec  men  .  ^^^^  title,  iinless  his  defence  depends  on  an  equitable  estate 
or  right  or  he  claims  relief  upon  any  equitable  ground 
against  any  right  or  title  asserted  by  the  plaintiff.  But, 
except  in  the  cases  hereinbefore  mentioned,  it  shall  be 
sufficient  to  state  by  way  of  defence  that  he  is  so  in 
})Ossession.  And  he  may  nevertheless  rely  \ipon  any 
ground  of  defence  which  he  can  prove,  except  as  herein- 
before mentioned. 

It  remains  to  be  seen  how  far  this  rule  applies  to  ejectments 
for  non-payment  of  rent,  in  which  by  the  Com.  Law  Pro.  Act, 
1 853,  s.  1 98,  the  defence  is  requii-ed  to  set  forth  the  substantial 
ground  of  the  defence,  ex.  gr.,  whether  the  title  of  the  plaintiff 
as  landlord  or  the  fact  of  the  rent  being  due  was  in  dis- 
pute. (A) 

9.  Notwithstanding  the  provision  in  the  Common  Law 
Procedure  Amendment  (Ireland)  Act,  1853,  in  that  be- 
half, the  defendant,  in  all  cases  where,  either  before  or 
since  said  Act,  a  plea  of  not  guilty  by  statute  was 
authorized,  may  plead  the  same,  inserting  in  the  margin 
"  By  statute,"  and  the  Act  and  section  thereof  authoriz- 
ing such  plea  to  the  action.  Every  defence  of  not  guilty 
by  statute  shall  have  the  same  effect  as  a  plea  of  not 
guilty  by  statute  would  have  had  but  for  such  provision. 
But  if  the  defendant  so  plead  he  shall  not  without  leave 
of  a  Court  or  Judge  plead  any  other  defence. 

This  repeals  the  69th  section  of  Com.  Law  Pro.  (Ire.),  Act, 
1853. 

As  to  general  denial  of  allegations  or  statement  of  claim, 
see  Chapter  lii.,  p.  388,  ante. 

Rule  10.  10.  Every  allegation  of  fact  in  any  pleading  in  an 
/negations  ruction,  not  being  a  petition  or  summons,  if  not  denied 
admitted,  specifically  or  by  necessary  implication,  or  stated  to  be 
not  admitted  in  the  pleading  of  the  opposite  party, 
shall  be  taken  to  be  admitted  except  as  against  an 
infant,  lunatic,  or  person  of  unsound  mind  not  so  found 
by  inquisition. 

'i'his  Rule  is  borrowed  from  Common  Law  Pleadinix. 


Rule  9. 

guilty  by 
statute. 
Ord.  19, 
R.  16,  E. 


Ord.  19, 
R.  17,  E. 


(ry)  See  Hall  v.  Eve,  L.  R.,  4  Chan.  D.,  341  ;  1^3  W.  R.  177. 
(h)  tJee  Ferg.  C.  L.  P.  234-5. 


PLEADINGS   GENERALLY.  555 

The  Rule  in  Equity  was  the  revei'se,  where  a  defendant   Crder  18. 
who  did  not  answer  when  not  required  so  to  do  was  considered 
to  have  traversed  the  entire  case. 

The  admission  is  of  course  only  for  the  purposes  of  the 
action  (^) 

Upon  a  defence  for  husband  and  wife,  raising  no  case  for  the 
husband,  judgment  was  allowed  againt  the  husband  forth- 
with(0 

A  principal  object  of  this  Rule  is  to  enable  plaintiff  to  get 
an  order  for  judgment  on  admissions  in  the  nature  of  a  decree 
pro  confesso,  where  there  is  no  express  denial  or  refusal  to 
admit  (»/) 

11.  Each  party  in  any  pleading,  not  being  a  petition    rule  ii. 
or  sumuious,  must  allege  all  such  facts  not  appearing  in  Each 
the  previous  pleadings  as  he  means  to  rely  on,  and  must  p^*^,^^'!^"^ 
raise  all  such  grounds  of  defence  or  reply,  as  the  case  true  ground 
may  be,  as  if  not  raised  on  the  pleadings  would  be  likely  «*  (lefencc- 

''■,■,  ■  1  •  1  1         •       or  reply. 

to  take  the  opposite  party  by  surprise,  or  would  raise  ord.  ly, 
new  issues  of  fact  not  arising  out  of  the  pleadings,  as  for  R.  is,  E. 
instance,   fraud,  or  that  any  claim  has   been   Ijarred  by 
the  Statute  of  Limitations  or  has  been  released. 

As  instances  of  pleadings  likely  to  take  the  opposite  party 
by  surprise,  may  be  mentioned  such  as  left  it  doubtful 
whether  a  defendant  in  an  action  for  work  and  labour,  and 
materials  provided,  by  a  denial  that  any  work  or  labour  or 
materials  was  done  or  provided,  modu  et  forma,  meant  to  raise 
the  question  that  the  work  although  done  was  under  a  special 
contract,  with  the  terms  of  which  plaintiff  had  not  com- 
plied, (/j) 

This  style  of  pleading  will  probably  now  be  inadmissible. 
Where  the  claim  was  on  a  charter  party  which  on  the  face  of 
it  was  in  fonn  (through  mutual  mistake  of  both  parties)  be- 
tween a  stranger  and  the  defendant,  and  the  plaintiff  meant  to 
rely  on  the  fact  that  according  to  tlie  Intention  and  proper  effect 
ofit,It  wasa  charter  party  between  plaintiff  and  defendant, It  was 
held  that  he  should  have  stated  it  as  It  was,  in  form,  and  then 
allege  it  was  intended  in  another  form,  and  to  another  effect— 
and  that  In  such  a  case — these  were  the  material  facts,  and  If 
he  had  done  so,  the  court  might  have  dealt  with  the  charter 
as  if  reformed  and  given  relief  accordingly,  (o) 


{k)  See  Com.  Law  I'ro.  Act,  1853,  s.  68,  and  Jefferey   v.  Lysaght, 
6  Ir.  Com.  Law  Rep.  404. 

(0  Jenkins  v.  Davies,  L.  R.  1,  Chan  D.  6'JG,  24  W.  R.  600 
V.  C.  B. 

(»i)  Anon.  20  Sol.  Jour.  468,  M.  R.     See  Ord.  39,  R.  9,  infra. 

In)  See  Callan  v.  Marum,  Ir.  Rep.  5  Com.  Law,  313,  C.  P.  P.oak 
V.  M'Cracken,  6  Ir.  Com.  Law  Rep.  259,  C.  P.  Mosely  v.  M'Mulka 
6  Ir.  Com.  Law  Rep.  69,  Ex. 

(o)  Breslawer  v.  Barwick,  24,  W.  R.  901,  20  Sol.  Jour.  6G3, 
C.  P.  D. 

2  B  2 


r,'){)  PLEADIXGS   GENERALLY. 

Order  18.  In  ordinary  casos,  a  mere  statement  of  the  particnlars  of  the 
(Icniand,  or  of  the  ground  of  the  defence,  such  as  the  Statute 
of  Limitations,  will  be  sufficient. (/)) 

The  Statute  of  Limitations  must  be  expressly  stated  as  the 

defence  which  the  defendant  relies  on.     Where  a  statement  of 

claim   showed  that  the  claim  was  barred  by  the  Statute   of 

Limitations  and  defendant  demurred  to  it,  the  demurrer  was 

overruled,  although  a  defence  would  only  be  to  the  same  eif ect 

as  that  raised  by  the  demurrer,  because  although  the  remedy  be 

suspended  the  cause  of  action  might  remain, (</)  but  it  has  been 

decided  otherwise  as  regards  a  claim  for  possession  of  land 

wdiere  the  statute  takes  away  the  riglit  as  well  as  the  remedy, 

and  this  rule  does  not  apply  to  demurrers.(r)     So   a  defence 

by   way  of  demurrer  will  not   enable   the    pleader    to   insist 

upon  the  Statute  of  Frauds.(s)     In  an  action  alleging  delivery 

and    acceptance   of  goods   by  defendant,   a  traverse   of   the 

delivery  and   acceptance  will  not  entitle  the  pleader  to  the 

benefit  of  the  Statute  of  Frauds. (0 

]{i'LE  12.         1 2_  JSTo  pleading,  not  being  a  petition  or  summons,  shall, 

Pleadings     gxcept  by  wav  of  amendment,  raise  any  new  ground  of 

consistent,    claim  or  contain  any  allegation  of  fact  inconsistent  with 

Oi-fi.  Ill,       the  previous  i)leadings  of  the  party  pleading  the  same. 

K.  IS),  E.  .  • 

Departure  in  Common  Law  pleading  was  the  vice  of  desertnig 
in  one  pleading  the  ground  taken  in  the  last  antecedent  plead- 
ing and  resorting  to  another.(?/)  Now,  although  a  second 
]ileading  should  add  some  new  facts  not  in  the  first,  yet  they 
must  be  in  support  of  it.(») 

i!uLEi3.  1.3.  Subject  to  the  Pailes  in  the  Act  contained,  the 
Joinder  plaintiff  by  his  reply  may  join  issue  upon  the  defence,  and 
each  party  in  bis  pleading,  if  any,  subsequent  to  reply, 
may  join  issue  upon  the  previous  pleading.  Such  joinder 
of  issue  shall  operate  as  a  denial  of  every  material  allega- 
tion of  fact  in  the  pleading  upon  which  issue  is  joined,  but 
it  may  except  any  f^icts  which  the  party  may  be  willing 
to  admit,  and  shall  then  operate  as  a  denial  of  the  facts  not 
so  admitted. 

The  plaintiff  instead  of  joining  issue  generally  in  his  repli<'a- 
tion  may  answer  or  explain  any  allegations  of  the  defence,  and 

(w)  See  Askeii  v.  North  Eastern  lly.  Co.,  W.  N.,  1875,  238,  20  SoL 
Jour.  120. 

(</)  ^Vakelee  v.  Davis,  24  W.  E.,  00.  Q.  B.  D. 

0-)  Dawk:ns  v.  Lord  Penrhvn,  L.  K.,  G  Chan,  D.  318  ;  21  Sok  Jour. 
730,  A.  C. 

(.s)  Catling  V.  Kinn;,  L.  R.,  5  Chan.  D.  GGO ;  25  W.  R.  550,  A.  C. 

(0  Clarke  v.  Callow,  W.  N.,  1870,  202 ;  20  Sol.  Jour,  lii,  A.  C. 

00  Sue,  as  an  instance.  Barry  v.  Grogan,  Ir.  Rep.  2  Com.  Law  390, 
Q.  15. 

(r)  See  Breslawcr  v.  Barwitk,  21  W.  R.  'JOl ;  20  Sol.  Jour.  G6o, 
C.  P.  D. 


of  iss 
(M-rt.  I'l. 
E.  I'l,  E 


PLEADINGS   GENERALLY,  0.)7 

if  he  wishes  to  confess  and  avoid  it  seems  he  must  answer.  ("■)     Order  18. 
But  after  a  general  joinder  of  issue  it  is  doubtful  whether  lie 
can  also  reply  by  way  of  confession  and  avoidance  to  the  same 
defence,  (.r) 

114.  "VVlien  a  party  in  any  pleading  denies  an  allega-    Rulk  u. 
tion  of  fact  in  the  previous  pleading  of  the  opposite  party,  Denial, 
he  must  not  do  so  evasively,  but  answer  the  point  of  substantial, 
substance.    Thus,  if  it  be  alleged  that  he  received  a  certain  ord.  19, 
sum  of  money  it  shall  not  be  sufficient  to  deny  that  he  R-  22,  E. 
received  that  particular  amount,  but  he  must  deny  that  he 
received  that  sum  or  any  part  thereof,  or  else  set  out  how 
much   he  I'eceived.       And   so  when  a   matter  of   fact  is 
alleged  with  divers  circumstances,  it  shall  not  be  sufficient 
to  deny  it  as  alleged  along  with  those  circumstances,  but 
a  fair  and  substantial  answer  must  be  given. 

The  fault  in  pleading  intended  to  be  reached  by  this  rule 
was  at  Common  Law  described  as  taking  a  traverse  too  Avidely, 
traversing  more  than  was  material  and  making  the  precise  sum 
or  particular  time  or  place,  parcel  of  the  issue. 

As  regards  a  denial  with  circumstances,  where  a  claim  was 
made  at  Common  Law  on  a  special  contract  with  several  con- 
ditions, it  was  open  to  the  defendant  either  to  deny  the 
contract  as  alleged,  or  to  admit  a  contract  and  allege  it  Avas 
different  from  that  stated. (?/)  This  op*ion  would  not  seem  to  be 
open  now,  and  a  defendant  must  disclose  whether  he  means  to 
insist  that  there  was  no  contract  whatever ;  or  set  forth  tlie 
contract  as  he  understands  it  to  be,(2:)  and  if  his  case  be  tli  i*- 
one  or  more  of  its  conditions  were  unfulfilled,  he  should 
mention  which.  In  one  case  where  plaintiff  alleged  an  agree- 
ment between  one  H,  the  defendant's  predecessor  in  title, 
through  his  agent  and  plaintiff's  predecessor,  and  defendant 
denied  the  agreement  in  terms  as  stated,  and  then  alleged  that  H 
was  a  person  of  unsound  mind,  and  did  not  lawfully  authorize 
an  agent  to  make  an  agreement  in  his  name,  it  was  held  that 
defendant  could  only  enter  into  evidence  to  show  the  unsound- 
ness of  mind  of  H,  and  not  the  want  of  authority  of  the 
agent.(a) 

15.  Wherever    the    contents   of    any     document   are    Rule  1.5. 
material,  it  shall  be  suHicient  in  any  pleading  to  state  the  Documeuts,| 
effect  thereof  as  briefiy  as  possible,  -without  setting  out  ^  '"^^  °*" 

"^            ■■■                  '                                     °  Onl.  19, 
— — R.  :>3. 

Or)  Hall  V.  Eve,  L.  R.  4  Chan.  D  341 ;  25  W.  K.  177;  Crichton  v. 
Collery,  Ir.  Rep.  4  Com.  Law,  508,  Ex. 

(X)   lb. 

(y)  See  Habgcod  v.  Paul,  8  Ir.  Com.  Law  Rep.  App.  24. 

(2)  See  Thorp  v.  Holdsworth,  L.  R.,  3  Chan.  D.,  G37,  S.C.  mm. 
Anon.  ;  20  Sol.  Jour.  4G8,  per  Sir  Geo.  Jessel,  M.  K. 

(«)  Bvrd  V.  Nunn,  L.  R.,  5  Chan.  D.  781,  Fry,  J  ;  affirmed,  20  W. 
R.  101,  W.  N.  1877,243  A.  C. 


558 


PLEADINGS   GENERALLY, 


Order  18. 


Rule  16. 
Malice 
and  fiaud, 
liow 
alleged. 
Ord.  19, 
E.  24. 


Kf  LE  17 
JS'otice 
alleged. 
Ord.  10, 
R.  25,  E. 


Rule  IS. 

Contract 
arising 
Irom 
letters. 


(^rd  10, 
K.  27,  E. 


tlie  wliole  or  any  part  thereof  unless  the  precise  words 
of  the  document  or  any  part  thereof  are  material. 

See  Com.  Law  Pro.  (Ire.)  Act,  1853,  s.  73. 

16.  Wherever  it  is  material  to  allege  malice,  fraud- 
ulent intention,  knowledge  or  other  condition  of  the  mind 
of  any  person,  it  shall  be  sufficient  to  allege  the  same  as  a 
f;ict  without  setting  out  the  circumstances  from  wMch 
tlie  same  is  to  be  inferred. 

In  an  action  claiming  indemnification  for  losses  sustained  by 
reason  of  the  fraudulent  misrepresentations  of  the  defendant 
to  induce  plaintiff  to  purchase  bonds  in  a  public  company,  it  is 
sufficient  to  state  generally  that  the  prospectus  issued  by  the 
defendant  as  director  of  the  company  was  to  his  knowledge 
false  and  fraudulent,  without  specifying  particulars  or  stating 
the  motives  which  induced  theni.(//)  So  where  certain  state- 
ments are  alleged  to  be  false  representations  of  the  existing  state 
of  things,  is  it  not  necessary  to  set  forth  what  tlie  actual  state 
of  facts  Avas,  especially  where  they  were  more  in  the  know- 
ledge of  the  defendant.(c) 

On  the  other  hand  to  specify  particulars  of  fraud  might  be 
dano-erous,  if  incomplete  or  insufBcient  to  establish  a  case  for 
relic  f.(fO 

17.  Wherever  it  is  material  to  allege  notice  to  any 
person  of  any  fact,  matter,  or  thing,  it  shall  be  sufficient 
to  allege  such  notice  as  a  fict,  unless  the  form  or  the 
precise  terms  of  such  notice  be  material. 

See  2  Daniel's  Chan.  Pract.  791,  4th  Edition.  Semhie  if  the 
notice  be  not  direct  but  constructive,  through  an  agent  or 
solicitor,  should  it  be  alleged  as  such. 

18.  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  conversa- 
tions, or  otherwise  from  a  number  of  circumstances,  it 
shall  be  sufficient  to  allege  such  contract  or  relation  as  a 
foot,  and  to  refer  generally  to  such  letters,  conversations, 
or  circumstances  without  setting  them  out  in  detail. 
And  if  in  such  case  the  person  so  pleading  desires  to 
lely  in  the  alternative  upon  more  contracts  or  relations 
than  one  as  to  be  implied  from  such  circumstances,  he 
nuiv  state  the  same  in  the  alteimative. 


(o)  Herring  v.  IJischolfsheiin,  W.N.  LS7(J-77,  'M.  K. 

(c)  AVeir  r.  Baniett,  W.  N.  1875,  258;  20  Sol.  Jour.  140,  lluddlc- 
stone,  K. 

(d)  See  Hodn;es  v.  Hodge.s,  L.  K.,  2  Chan.  D.  112;  24  W.  E.  203, 
20  Sol.  Jour.  293. 


PLEADINGS    GENERALLY.  Oo9 

It  was  a  rule  both  of  Common  Law  and  of  Equity  pleading,  Order  18. 
that  written  documents  in  order  to  be' relied  on  as  evidence  of 
an  agreement  need  not  be  set  forth  or  put  in  issue,  (e)  The 
danger  of  relying  on  a  series  of  letters  set  forth  in  pleading 
is  illustrated  by  "the  case  of  Vale  of  Neath  Colliery  Co.  v. 
Furness,(/j  where  the  claim  was  demurred  to  as  not  establish- 
ing a  contract  to  satisfy  the  Statute  of  Frauds. 

The  second  branch  of  the  Rule,  as  to  stating  a  contract 
derived  from  letters  or  conversations  in  the  alternative,  might 
be  dangerous  in  actions  for  specific  performance  in  which  the 
contract  to  be  enforced  must  be  certain  and  specific,  and  if  it 
were  presented  to  the  Court  in  two  alternative  shapes,  it 
mi"-ht  probably  involve  the  dismissal  of  the  action  on  the 
gi'ound  of  the  uncertainty  of  the  contract,  (g) 

19.  Neitlier  party  need  in   any  pleading    allege   any    Rule  19. 
matter  of  fact  which  the  law  presumes  in  his  favour,   or  Piesump- 
as  to  which  the  burden  of  proof  lies  upon  the  other  side,  l^°y/* 
unless  the  same  has  first  been  specifically  denied.  ord.  19, 

[E.g. — Consideration   for    a   bill   of    exchange  where  ^'  ^^'  ^• 
the  plaintiff  sues  only  on  the  bill,  and  not  for  the  considei-a- 
tion  as  a  substantive  ground  of  claim.] 

See  Stephen  on  Pleadmg,  p.  399  and  395,  Chapter  lii.  (490) 
p.  380,  ante. 

20.  In  actions  for  damage  Ly  collision  between  vessels,    Rule  20. 
imless  the  Court  or  a  Judge  shall  otherwise  order,  each  Collision 
solicitor  shall,  before  any  pleading  is  delivered,  file  with  preUmhi"- 
the  proper  officer  a  document  to  be  called  a  Preliminary  ary  Act. 
Act,  which  shall  be  sealed  up,  and  shall  not  be  opened  Ord.  19 
until  ordered  by  the  Court  or  a  Judge,  and  which  shall    '     ' 
contain  a  statement  of  the  following  particulars : — 

(a.)  The  names  of  the  vessels  which  came  into  collision 
and  the  names  of  their-  masters. 

(b.)  The  time  of  the  collision. 

(c.)  The  place  of  the  collision. 

(d.)  The  direction  of  the  wind. 
'  (e.)  The  state  of  the  weather. 

(/)  The  state  and  force  of  the  tide. 

(g.)  The  coiu-se  and  speed  of  the  vessel  when  the 
other  was  first  seen. 

(/i.)  The  lights,  if  any,  carried  by  her. 


(e)  See  Rice  w.  O'Connor,  12  Ir.  Chan.  Rep.  -12-1:,  A.  C.  :  Smith  it. 
Kav,  7  H.  L.  C,  756. 

f'f)  Vale  of  Neath  Colliery  Co.  v.  Furness,  24  ^Y.  R.,  63,  V.  C.  B. 

(g)  Lindsay  v.  Lynch,  2  Scho.  &  Lef.  1 ;  Power  v.  Collejxe  of 
Physicians,  7  Tr.  Chan.  Rep  104;  Daly  v.  Coghlau,  3  Jr.  Jur.  150; 
Kii-wan  v.  Burchall,  10  Ir.  Chan.  Rep.  63. 


560  PLEADINGS    GENERALLY. 

Order  18.  (j.)  The  distance  and  bearing  of  the  other  vessel  when 
first  seen. 

(k.)  The  lights,  if  any,  of  the  other  vessel  which  were 
first  seen. 

(I.)  Whether  any  lights  of  the  other  vessel,  other 
than  those  first  seen,  came  into  view  before  the  collision. 

(m.)  What  measures  were  taken,  and  when,  to  avoid 
the  collision. 

(71.)  The  parts  of  each  vessel  which  first  came  into 
contact. 

If  both  solicitors  consent,  the  Court  or  a  Judge  may 
order  the  preliminary  acts  to  be  opened  and  the  evidence 
to  be  taken  thereon  without  its  being  necessary  to  deliver 
any  pleadings. 

Rule  21.  21.  Every  pleading  or  other  document  required  to  be 

Pii'ariin-s  delivered  to  a  party,  or  between  parties,  shall  be  delivered 

ments^tobe  ^°  ^^^^  Solicitor  of  every  party  who  appears  by  a  solicitor, 

delivered  or  to  the  party  if  he  appears  in  person ;  but  if  no  ap- 

wim  officer  P^arance  has  been  entered  for  a  party,  then  such  pleading 

Ord.  19,  or  document  shall  be  delivered  by  being  filed  with  the 

R.  iG,  E.  proper  officer. 

Among  documents  to  lie  delivered  where  no  appearance  has 
been  entered,  are  notices  uf  motion,  ex.  gr.  notice  of  motion  for 
judgment,  (/i) 

Rule  22.        22.   Every  pleading   in  an   action    shall  be  delivered 
Pieudings    between  parties,  and  shall  be  marked  on  the  fiice  with 
marked        ^lie  date  of  the  day  on  which  it  is  delivered,  and  with  the 
^vith  date     reference  to  the  Record  number  of  the  action,  the  Divi- 
Ord^o*^"^^'  ^^^^  *^  which  and  the  Judge  (if  any)  to  whom  the  action 
R.  j\    '       is  assigned,  the  title  of  the  action,  the  descri])tion  of  the 
pleading,  and  the  name  and  place  of  business  of  the  soli- 
citor delivering  the  same,  or  the  name  and  address  of  the 
jjai-ty  delivering  the  same  if  he  does  not  act  by  a  solicitor. 

Rule  23.        23.  Copies  of  all  pleadings  shall,  within  two  days  after 

Copies  of      the  same  shall  have  been  so  delivered,  be  left  with  and 

filed.  '"^^     ^^ed  by  the  proper  officer  of  the  division  to  which  the 

action  is  assigned,  and  an  entry  of  each  pleading  shall, 

Ti))on  the  same  being  filed,  be  entered  in  the  Cause  Book 

by  the  officer  filing  the  same. 

(//)  Dymueks  v.  Cruft,  L.  II.,  3  Cliau.  D.  r,\2,  24  AV.  1!.  700,  S4l', 
M.  K.  See  Shepherd  v.  Beane,  W.  N.  ]87(!,  (U  ;  Harris  v.  (JamMe, 
"n.  N.  1S77,  142  ;  Cook  r.  Dev,  L.  R.2  Chan.  I).  418,  24  W.  R.  402; 
see  Whilaker  v.  Tluir^ton,  W.  N,  187G,  232,  M.  R. 


[     561     ] 

Order  XIX. 
Pleading  Matters  arising  j^^nding  the  Action.  Order  19. 

1.  Any  ground  of  defence  whicli  has  arisen  after  action     Ri^i-e  i. 
brought,  but  before  the  defendant  has  delivered  his  state-  defence 

o      '  ...  .  .         arising 

nient  of  defence,  and  before  the  time  limited  for  his  doing  after  action 
so  has  expired,  may  be  pleaded  by  the  defendant  in  his  b'ought- 
statement  of  defence,  eitlier  alone  or  together  with  other  ^'■'|-  ^' 
grounds  of  defence.     And  if,  after  a  statement  of  defence 
has  been  delivered,  any  ground  of  defence  arises  to  any 
set-off  or  counter-claim  alleged  therein  by  the  defendant, 
it  may  be  pleaded  by  the  plaintiff  in  his  reply,  either 
alone  or  together  with  any  other  ground  of  reply. 

As  to  whether  a  defence  by  way  of  counterclaim  arising  after 
action  brought  can  be  pleaded,  see  Ellis  v.  Munson.(/) 

If  a  release  or  other  matter  bad  arisen  after  action  broujrht, 
defendant  might  formerly  plead  it,  not  in  bar  of  the  action,  but 
of  its  further  continuance ;  and  plaintiti  was  entitled,  when 
dealing  with  a  sole  defendant,  to  confess  the  defence  and  have 
judgment  for  his  costs  up  to  time  of  plea  pleaded.{/e)  Wbeilur 
plaintiff  can  have  judgment  against  one  of  several  defendants, 
on  such  a  defence,  is  not  expressly  stated. 

In  equity,  where  it  became  necessary  to  rely  on  facts  arising 
after  Bill  hied,  they  might  be  introduced  by  way  of  amend- 
ment of  the  bill,  or  byway  of  supplemental  statement  annexed 
to  it.(0 

2.  Where  any  ground  of  defence  arises  after  the  defend-     Rule  2. 
ant  has  delivered  a  statement  of  defence,  or  after  the  time  Pleading 
limited    for    his    doing    so    has    expired,    the    defendant  ,^^^5^^^^ 
may,  and  where  any  ground  of  defence  to  any  set-off  or  uf  defence, 
counter-claim  arises  after  reply,  or  after  the  time  limited  <  »rd.  20, 
for  delivering  a  reply  has  expired,  the   plaintiff  may,  ^'"  '■  *'• 
within  eight  days  after  such  ground  of  defence  has  arisen, 

and  by  leave  of  the  Court  or  a  Judge,  deliver  a  further 
defence  or  further  reply,  as  the  case  may  be,  setting  forth 
the  same. 

This  defence  is  similar  to  the  plea  p.  d.  continuance  in  sub- 
stitution of  the  plea  already  pleaded,  which  was  virtually  with- 
drawn. It  confessed  the  action  as  rightly  brought,  but  prayed 
it  should  not  further  be  maintained.  The  present  form  of  the 
defence  requires  the  leave  of  the  Court.  It  may  be  pleaded  at 
Nisi  Prius  if  necessary.(?«)    A  defence   of  bankruptcy   after 

(0  Ellis  V.  Muason,  W.  R.  1876,  253,  A.  C. ;  Original  Hartlepool 
Company  v.  Gibb;  L.  R.,  5  Chan.  D.  713,  A.  C. 

(A)  See  Com   Law  Pro.  Act,  1853,  s.  72 ;  2  Ferg.  Prac.  1019. 

(0  See  142  G.  0.,  31st  Oct.,  1867. 

(?«)  See  Com.  Law  Pro.  Act,  1853,  s.  73. 

2b3 


5G2 


STATEMENT  OF   CLAIM. 


Order  19.    action  brought,  is  of  this  nature,  and  entitles  plaintiff  to  his 
costs  up  to  the  date  of  pleading  it.(?i) 

3.  Whenever  any  defendant,  in  Lis  statement  of  de- 
fence, or  in  any  furtlier  statement  of  defence  as  in  the 
last  Ride  mentioned,  alleges  any  gi-ound  of  defence  which 
has  arisen  after  the  commencement  of  the  action,  the 
plaintiff  may  deliver  a  confession  of  such  defence,  which 
confession  may  be  in  the  Form  No.  2  in  Appendix  (B) 
hereto,  with  such  vaiiations  as  cii'cumstances  may  require, 
and  he  may  thereupon  sign  judgment  for  his  costs  up  to 
the  time  of  the  pleading  of  such  defence  unless  the  Court 
or  a  Judge  shall,  either  before  or  after  the  delivery  of  such 
confession,  otherwise  order. 

If  the  plaintiff  confesses  the  defence,  he  can  bring  no  further 
action  in  respect  of  the  same  claim,  (o) 


Rule  3. 

riaiutiff 
iiuiy  con- 
fess and 
claim 
costs. 
Orel.  i?0, 
11.  3,  E. 


Order  20. 

KUIiE  1. 


Delivery 

i-ix  weeks 

after 

aiilie.irance 

unless 

dispensed. 

JNiay 
ileliver 
be  lore. 


At  peril 

of  cos;  s. 
Onl.  -Jl, 

i;.  1,  K. 


Order  XX. 
Statement  of  Claim. 

1.  The  delivery  of  statements  of  claim  shall  be  regu- 
lated as  follows  : — • 

(a.)  If  the  defendant  shall  not  state  that  he  does  not  re- 
qfiire  the  delivery  of  a  statement  of  claim,  the  plaintiff 
shall,  unless  otherwise  ordered  by  the  Court  or  a  Judge, 
deliver  it  mthin  six  weeks  from  the  time  of  the  defendant's 
entering  his  appearance. 

(h.)  The  plaintiff  may ,  if  he  think  fit,  at  any  time  after 
the  issue  of  the  writ  of  summons,  deliver  a  statement  of 
claim,  with  the  writ  of  summons  or  notice  in  lieu  of  writ 
of  summons,  or  at  any  time  afterwards,  either  before  or 
after  appearance,  and  although  the  defendant  may  have 
appeared  and  stated  that  he  does  not  require  the  de- 
livery of  a  statement  of  claim  :  Provided  that  in  no  case 
where  a  defendant  has  api)eared  shall  a  statement  be 
delivered  more  than  six  weeks  after  the  appearance  has 
been  entered  unless  otherwise  ordei'ed  by  the  Court  or  a 
Judge, 

(c.)  "Where  a  plaintiff  delivers  a  statement  of  claim 
without  being  requu^ed  to  do  so,  the  Court  or  a  Judge 
may  make  such  order  as  to  the  costs  occasioned  thereby 
as  shall  seem  just,  if  it  appears  that  the  delivery  of  a 
statement  of  claim  was  minecessary  or  improper. 

(ii)  See  Foster  i;.  Ganigee,  L.  E.,  1  Q.  B.  D.,  6CG;  24  W.  II.  ;J19; 
Ellis  V.  Munson,  W.  N.  1876,  253,  A.  C. 

ip)  Newington  v.  Levev,  L.  K.,  5  C.  P.  607,  S.  C,  L.  K.,  6  C.  P.  ISO. 


STATEMENT  OF   CLAIM.  5f!o 

As  to  delivery  of  statement  of  claim  in  general,  see  schedule   Order  20. 
Rule  21,  antey  p.  597. 

As  to  default  in  delivery  of,  see  Ord.  xxviii.,  R.  1,  infra. 
When  defendant  does  not  appear,  delivery  of  statement  of 
claim  IS  in  most  actions  unnecessary.  If  the  Avrit  be  specially 
indorsed  with  a  liquidated  demand  under  Order  ii.,  R.  3, 
plaintiff  may  sign  final  judgment  without  any  statement  of 
claim  under  Ord.  xii.,  K.  3  and  4,  and  even  where  the  wric 
is  not  specially  indorsed,  but  the  claim  is  for  a  debt  or  liqui- 
dated demand,  plaintiff  may  after  eight  days  have  judgment 
on  filing  an  affidavit,  stating  particulars  of  his  claim  in  addition 
to  the  affidavit  of  service,  Ord.  xii.,  R.  5. 

Where  the  claim  is  not  of  a  liquidated  nature,  but  for  detention 
of  goods  and  damages  in  respect  of  same,  plaintiff  may  have 
interlocutory  judgment  in  default  of  a])pearance,  witliout  a 
statement  of  claim,  Ord.  xii ,  R.  6,  so  likewise  in  a  claim  for 
possession  of  land  under  R.  7,  or  for  mesne  rates  under  R.  9. 

But  in  Chanceiy  actions  specially  assigned  by  the  36th 
sec.  of  J.  Act,  and  all  other  actions  not  mentioned  before,  the 
plaintiff  must  proceed  as  if  the  defendant  had  appeared. 
That  is,  he  must  deliver  a  statement  of  claim  and  follow  it  up 
as  in  ordinary  cases,  by  notice  of  motion  for  judgment. 
Even  in  an  administration  action  set  down  as  a  short  cause, 
V.  C.  Malins  required  it,  while  Sir  Geo.  Jessel,  M.  R.  and 
V.  C.  Hall  thought  it  unnecessiu-y.  (5') 

When  the  defendant  appears  and  dispenses  with  delivery  of 
statement  of  claim,  it  is  of  course  unnecessary,  and  even  where 
defendant  does  not  dispense  with  it,  plaintiff  may  deliver  as 
his  statement  a  notice  that  his  claim  appears  indorsed  on  the 
writ  under  Rule  2  of  this  Order. 

2.  Where   the    writ    is    specially  indorsed,   and  the    rule  2. 
defendant  lias  not  dispensed  with  a  statement  of  claim,  Speciaiiy 
it  shall  be  suflS.cient  for  the  plaintift'  to  deliver  as  his  ^fj^'^*"'* 
statement  of  claim  a  notice  to  the  effect  that  his  claim  notice  in 
is  that  which  appears  by  the  indorsement  upon  the  writ,  ^'®'^  °* 
iinle.ss  the  Court  or  a  Judge  shall  order  him  to  deliver  a  of  claim, 
further  statement.     Such  notice  may  be  either  wT.'ittcn  ord.  21, 
or  printed  or  partly  written  and  partly  piinted,  and  may  H.  4  E. 
be  in  the    Form   No.   3    in  Appendix  (B)  hereto,   and 
shall  be  marked  on  the  face  in  the  same  manner  as  is 
required  in  the  case  of  an  ordinary  statement  of  (.laiiii. 
And  when  the  plaintiff  is  ordered  to  deliver  such  iurther 
statement  it  shall  be  delivered  withiu  such  time  as  by  the 
order  shall  be  directed,  and  if  no  time  be  so  limited  then 
Mdthin  the  time  prescribed  by  Rule  1  of  this  order. 

{q)  Breton  v.  Mockett,  W.  N.,  1875,  255  ;  Boyes  v.  Cook,  W.  X. 
1876;  28,  V.  C  M.  Tavlor  v.  Duckett,  W.  N.,  1875,  11)3  M.  K.  ; 
Greeu  v.  Colby,  L.  R.,  1  Chan.  D.  693 ;  24  W.  K.  246,  V.  C.  H. 


564  DEFENCE. 

Cr-''er20.        Delivery  of  a  copy  of  the  indorsement  Instead  of  the  notice 
mentioned  in  this  Rule  is  informal,  but  it  has  been  amended.  (/•) 
Furtlici-  The   J.    Acts   contain  no    special  provision  for  furnishing 

statement     particulars  of  plaintiff 's  demand,  except  the  above.     It  was 
of  claim        assumed  that  bills  of  particulars  would  not  be  necessary,  and 
ticuiars.        ^Jiat  special  indorsements  on  the  statements  of  claim  Avould 
furnish  full  information. (.s) 

But  the  old  power  to  order  better  particulars  has  been 
exercised  after  delivery  of  a  statement  of  claim, (<)  especially 
where  the  action  is  likely  to  be  settled  (?/)  The  application 
should  be  for  further  statement  of  claim,  after  claim 
delivered.  (?;) 

Of  course  every  court  has  an  inherent  jurisdiction  Inde- 
pendently of  rules  to  compel  a  plaintiff  in  any  form  of  action  to 
furnish  fuller  pai  ticuiars  of  his  claim  when  justice  requires,  (?r) 
ex.  gr.,  as  to  the  speciiic  breach  of  covenant  he  intends  to  rely 
on,  (a;)  of  the  time,  and  place,  and  boundaries  of  locus  in  quo  in 
case  of  trespass  q.  c.  fregit^{y)  of  the  names,  descriptions,  and 
addresses  of  the  persons  before  whom  words  charged  to  be  libel 
were  spoken,  (.r) 

As  to  particulars  of  defence  In  libel,  see  note(a),  and  parti- 
culars of  counterclaim,  see  note  (i). 


Order  X.X^I. 

Order  21.  Defence. 

iiL  LE  1.  1.  Where  a  statement  of  claim  is  delivered  to  a  defendant 

Time  for      he  shall  deliver  his  defence  in  an  action  assigned  to  the 

uery.       diancerv  Division  within  fourteen  days,  and  in  an  action 

Ord  2'^  .  "^    '         . 

u.  1  E.  assigned  to  the  Queen's  Bench,  Common  Pleas,  or  Ex- 
checjuer  Divisions  within  eight  dtiys,  from  the  delivery  of 
the  statement  of  claim,  or  from  the  time  limited  for  ajjpear- 
ance,  whichever  shall  be  last,  unless  such  time  is  extended 
by  the  Court  or  a  Judge. 

(r)  Anon.  W.  N.,  1S7G,  24  ;  20  Sol.  Jour.  243,  Lush,  J. 

(.«!)  Ross  V.  Gihbs,  W.  N.,  1875,  238 ;  20  Sol.  Jour.  120,  Quain,  J. 

(/)  Anon.  W.  N.,  1875,  202  ;  20  Sol.  Jour.  57,  Lush,  J. 

(m)  barker  v.  Wood,  W,  N.,  1876,  50;  20  Sol.  Jour.  282, 
Archibald,  J. 

{v)  Schomberg  v.  Zoebelli,  W.  N.,  1876,  106,  20  Sol.  .Tour..  341 ; 
see  Cotton  v.  Horseman,  W.  N.,  1876,  22,  where  notice  only  given. 

(w)  Early  v.  Smith,  12  Ir.  Com.  Law  Rep.  App.  35  Q.  B. 

(x)  Sparkes  v,  Rlacquiere,  6  Ir.  Com.  Law  Rep.  126,  C.  1*. 

(y)  Larkin  v.  Lawder,  7  Ir.  L.  R.  227,  C.  P. 

(s)  Early  v.  Smith,  snprn.  Slater  v.  Slater,  8  Ir.  Jur.  X.  S.  132, 
C.  P.  See  Cornwall  ;;.  Hudson,  7  Ir.  Jur.  N.  S.  117,  E.  Refused  in 
Wingood  V.  Cox.  W.  N.  1876,  106;  20  Sol.  Jour.  341,  Denman,  J. 
Eastell  V.  Steward,  W.  N.,  1875,  231,  Quain,  J. 

(o)  Colonial  Assurance  Corporation  v.  Prosser,  W.  N.,  1876,  55;  20 
Sol.  J.uir  288. 

{h)  Anon.,  20  Sol.  Jour.  81,  Lush,  J. 


DEFENCE.  5(35 

The  rule  establishes  different  times  for  defence  to  Chan-  Order  21. 
eery  actions  and  to  Common  Law  actions,  i.e.,  fourteen  days 
from  delivery  of  statement  of  claim  in  case  of  Chancery  actions, 
and  eight  days  in  Common  Law  actions.  Where  the  statement 
of  claim  is  delivered  before  the  time  for  appearance  has  fully 
expired,  then  the  time  counts  from  the  latter  date.  As  to 
extension  of  time  for  delivery  of  defence,  see  Ord.  Ivii.,  Rule 
G,  infra. 

Where  an  order  is  made  giving  defendant  further  time  to 
file  a  defence  he  may  tile  a  demurrer  alone  instead,  unless  the 
order  specifically  expresses  the  contrary,(6-)  as  used  to  be  done 
in  the  old  procedure. (f/) 

As  to  judsmeut  in  default  of  defence,  see  Order  xxviii., 
RR.  2-11,  i,7fra. 


2.  A  defendant  who  has  appeared  in  an  action  and  Rule  2. 
stated  that  he  does  not  require  the  delivery  of  a  statement  Voluntary 
of  claim,  and  to  whom  a  statement  of  claim  is  not  delivered,  '  ^  "^"^^" 

...  Orci   *22 

may  deliver  a  defence  at  any  time  within  eight  days  after  r.  2,  e'. 
his  appearance,  unless  sucli  time  is  extended  by  the  Court 
or  a  Judge. 

This  being  a  voluntary  defence  no  judgment  as  by  default 
can  be  entered,  if  defendant  does  not  choose  so  to  plead. (e) 

3.  "Where  leave  has  been  given  to  a  defendant  to  defend     Rule  3. 

under   Order  xiii.  he   shall  deliver  his  defence,   if  any,  Defence  by 

within  such  time  as  shall  be  limited  by  the  order  oiving  ^^^^' 

.      .  °  Ord  2"' 

him  leave  to  defend,  or  if  no  time  is  thereby  limited,  then  k.  3  e.' 
within  eight  days  after  the  oi'der. 

Where  thewrit  is  specially  indorsed  under  Order  xiii.,  R.  1 ,  and 
defendant  gets  leave  to  defend,  the  order  usually  limits  the  time 
to  do  so.  If  it  does  not,  the  time  will  be  eight  days  from  the 
date  of  the  order.  In  this  case,  unless  defendant  delivers  his 
defence,  plaintiff  may  have  judgment  for  want  of  a  defence 
under  Order  2S,  R.  2,  infra,  although  no  statement  of  claim  be 
delivered.  (/) 

The  order  when  refusing  plaintiff' 's  application  for  judgment 
under  Order  xiii.,  R.  1,  should  for  this  purpose  for  greater 
safety  expressly  give  defendant  leave  to  defend  {g) 

4.  Where  the  Coui-t  or  a  Judge  shall  be  of  opinion  that     Rule  4. 
any  allegations  of  fact  denied  or  not  admitted  by  the  Needless 
defence  ought  to  have  been  admitted,  tlie  Court  may  gog^g'^Q^f^*' 
■ Ord.  22, 

(c)  Hodges  V.  Hodges,  L.  R.,  2  Chan.  D.  112,  24  W.  R.  293;  20  ^^-  *'  ^• 
Sol.  Jour.  291,  M.  R. 

(d)  See  Binks  v.  Wharton,  Jr.  Rep.  5  Eq.  119,  V.  C. 

(e)  See  Hooper  v.  Giles,  W.  N..  1876  ;  20  Sol.  Jour.  217,  Lindler,  J. 
(,/■)  Atkins  V.  Taylor,  W.  N..  1876,  11 ;  20  Sol.  Jour.  218,  Lindley,  J. 
(ff)  See  Martrate  Pier  and  Harbour  Co.  v.  Terrv,  W.  K,  1876,  52; 

20  Sol.  Jour.,  279,  Archibald  J. 


566 


DEFENCE. 


Order  21. 


Klle  5. 

Counter- 
cluiiu  iu- 
VI  living 
third 
jierson, 
now  title 
of. 

Ord.  22, 
K.  5,  E. 


Rule  6. 
Service 
of  tliird 
Iierson 
with 
countcr- 
cluiiu. 
Ord.  22, 
II.  G,  E. 


make  sucli  order  as  shall  be  just  with  respect  to  any 
extra  costs  occasioned  by  their  having  been  denied  or  not 
admitted. 

5.  Where  a  defendant  Ijy  his  defence  sets  up  any 
counter-claim  which  raises  questions  between  himself  and 
the  plaintifi*  along  with  any  other  person  or  persons,  he 
shall  add  to  the  title  of  his  defence  a  further  title  similar 
to  the  title  in  a  statement  of  complaint,  setting  forth  tlie 
names  of  all  the  persons  who,  if  such  counter-claim  were 
to  be  enforced  by  cross  action,  would  be  defendants  to 
such  cross  action,  and  shall  deliver  his  defence  to  such  of 
them  as  are  parties  to  the  action  within  the  period  within 
which  he  is  required  to  deliver  it  to  the  plaintifi". 

As  to  allowance  of  counter-claims,  see  Chapter  xxiii.,  ante, 
p.  192-3. 

Where  the  counter-claim  sought  certain  deductions  from  the 
price  of  iron  sold  by  plaintiff  to  defendant,  and  which  defen- 
dant had  to  allow  to  a  third  party  to  whom  he  sold  it,  owing  to 
its  inferior  quality,  it  was  considered  not  necessary  to  add  to 
the  title  of  the  defence  the  name  of  such  party,  inasmuch  as 
no  relief  was  sought  against  him.(/0  But  where  the  action 
was  for  balance  of  purchase  money  on  sale  of  a  house,  and 
defence  that  sale  was  accomplished  by  fraudulent  misrepre- 
sentations of  a  third  person  acting  as  plaintiif 's  agent,  it  was 
deemed  proper  that  he  shouhl  be  joined  as  a  defendant. (z) 
But  in  neither  of  these  cases  did  the  defendant  by  his  de'fence 
seek  to  raise  any  question  a^iainst  the  third  party  as  contem- 
plated by  the  above  rule  which  only  deals  with  the  title  of  the 
pleadino;. 

In  the  form  No.  10,  Appendix  C,  infra,  the  pleading  is  pre- 
faced, "  The  Defence  and  counter-claim  of  the  above-named 
O.  S  "  (one  of  the  defendants)  and  it  is  entitled  both  as  in  the 
oriirinal  action  and  in  the  cross  action,  ex.  gr.,  between  the 
said  O.  S.,  plaintiff  and  the  said  R.  W.  (original  plaintiff)  and 
J.  B.  and  J.  W.,  the  defendants  in  the  cross-claim.  Under  the 
title,  "  Defence  and  counter-claim,"  the  defendant  may  rely  on 
a  set-off.  (Ji) 

6.  Where  any  such  person  as  in  the  last  preceding 
Rule  mentioned  is  not  a  party  to  the  action,  he  shall  be 
summoned  to  appear  by  being  served  with  a  copy  of  tlie 
defence,  and  such  service  shall  be  regulated  by  the  same 
Rules  as  are  hereinbefore  contained  with  respect  to  the 
service  of  a  writ  of  summons,  and  every  defence  so  served 


(/<)  Anon.,  20  Sol.  Jour.,  81  Lush,  J. 

(0  liartholmew  t;.    Kawliugs,  W.  N.,  187G,  GO;  20  Sol.  Jour.  281, 

Archibald,  J.  t>  jor^   oi 

(k)  Newell  V  National  Provincial  Bank,  L.  R.,  1  C.  V.  D.  4J0,  -i 
W.  K.  458. 


DEFENCE.  567 

shall  be  indorsed  in  the  Form  No.  4  iii  Appendix:  (B)    Order  21. 
hereto,  or  to  the  like  eflect. 

As  to  service  of  writ  of  summons,  see  Order  viii.,  ante.  The 
indorsement  notifies  to  the  third  party  that  if  he  does  not 
appear  to  the  oounter-chiim  within  eight  days  from  service 
thereof,  he  will  be  liable  to  have  judgment  given  against  him 
in  his  absence,  and  tells  him  where  an  appearance  may  be 
entered. 

7.  Any  person  not  a  defendant  to  the  action,  who  is    Rule  -. 
served  with    a  defence  and    counter-claim  as  aforesaid,  ^PPe^'"" 

tlllCG  DV 

must  appear   thereto  as  if  he  had  been  served   with  a  third 
writ  of  summons  to  ai)pear  in  an  action.  person. 

^  ^  Ord.  22, 

o       A  T    •  -,    ^  B.  7,  E. 

o.  Any  person  named  m  a  defence,  as  a  party  to  a  r^.j-  g 
counter-claim  thereby  made,  may  deliver  a  I'eply  within  Kepiy  to 
the  time  within  which  he  might  deliver  a  defence  if  it  ^^j^'inj''^" 
were  a  statement  of  claim.  Ord.  22, 

R.  8,  E. 

9.  Where   a   defendant  by   his    statement  of  defence     Rule  9. 
sets   up  a   counter-claim,   if   the  plaintifi'  or  any  other  ^^^ion  to 
person    named    in    manner  aforesaid    as    party    to    such  exclude, 
counter-claim   contends   that  the    claim    thereby   raised  9^^-  ^^' 
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  Coui-t  or  a 
Judge  may,  on  the  hearing  of  such  application,  make 
such  order  as  shall  be  just. 

On  this  rule,  see  cases  collected  in  Chapter  xxiii.  (24:3), 
ante,  pp.  196-8. 

10.  Where  in  any  action  a  set-oif  or  counter-claim  is  Ruleto. 
established  as  a  defence  against  the  plaintiff's  claim,  the  f,,"''!^^"*^ 
Court  may,  if  the  balance  is  in  favour  of  the  defendant,  fendaut  or 
give  iudgment  for  the  defendant  for  such  balance,  or  balance  of 
may  otherwise  adjudge  to  the  defendant  such  relief  as  he  claim, 
may  be  entitled  to  upon  the  merits  of  the  case.  0»"d-  22,^ 

R.  10,  E. 

As  to  one  trial  and  judgment,  see  Chapter  xxiii.,  (241), 
p.  195  ante. 

Where  defendant's  counter-claim  is  not  properly  answered 
by  the  i-epHcation,  this  will  not  entitle  the  defendant  to  have 
immediate  relief  as  on  admissions,  but  he  must  wait  until  the 
plaintiff's  claim  is  disposed  of,  as  the  balance  spoken  of  in 
this  rule  is  the  final  balance  on  the  hearing  of  the  cause. (Z) 

(0  Rolfe  V.  M'Claren,  L.  R.  a  Chau.  D.  106,  2i  \Y.  K.  816. 


[     568     ] 


Order  22. 

Rule  1. 
Notice  of, 
before 
defence  or 
further 
proceed- 
ines. 
Orrt.  2.';, 
R.  1,  E. 


Order  XXIL 

Discontinuance. 
1 .  The  plaintiff  may,  at  any  time  before  receipt  of  the 
defendant's  statement  of  defence,  or  after  the  receipt 
thereof  before  taking  any  other  proceeding  in  the  action 
(save  any  interlocutory  application),  by  notice  in  writing, 
a  copy  of  which  shall  he  left  with  and  filed  by  the  proper 
officer,  wholly  discontinue  his  action  or  withdraw  any 
part  or  parts  of  his  alleged  cause  of  comj)laint,  and  there- 
upon he  shall  pay  the  defendant's  costs  of  the  action, 
or,  if  the  action  be  not  wholly  discontinued,  the  defen- 
dant's costs  occasioned  by  the  matter  so  withdrawn. 
Such  costs  shall  be  taxed,  and  such  discontinuance  or 
withdrawal,  as  the  case  may  be,  shall  not  be  a  defence  to 
any  subsequent  action.  Save  as  in  this  Ride  otherwise 
provided,  it  shall  not  be  competent  for  the  plaintiff  to 
withdraw  the  Record  or  discontinue  the  action  witliout 
leave  of  the  Court  or  a  Judge,  but  the  Court  or  a  Judge 
may,  before,  or  at,  or  after  the  hearing  or  trial,  upon 
isuch  terms  as  to  costs,  and  as  to  any  other  action,  and 
otherwise  as  may  seem  fit,  order  the  action  to  be  discon- 
tinued, or  any  part  of  the  alleged  cause  of  complaint  to  be 
struck  out.  The  Court  or  a  Judge  may,  in  like  manner, 
and  with  the  like  discretion  as  to  terms,  upon  the  a2:)pli- 
cation  of  a  defendant,  order  the  whole  or  any  part  of 
his  alleged  grounds  of  defence  or  counter-claim  to  be 
withdrawn  or  struck  out,  but  it  shall  not  l)e  competent 
to  a  defendant  to  withdraw  his  defence,  or  any  part 
thereof,  without  such  leave. 

As  to  discontinuance  of  actions  at  law  before  verdict  or 
judgment,  see  66  G.  O.  1 854,  and  in  Ejectment,  Com.  Law 
Pro.  Act  (Ire.),  1853,  s.  ■222,  and  in  Error  ih.  s.,  180. 

As  to  plaintiff  dismissing  his  bill  in  Chancery,  see  102,  G.  O., 
31st  Oct.,  1867. 

There  was  no  partial  discontinuance  of  an  action  or  dismiss 
of  a  bill,  except  by  special  order. 

The  plaintiff  now  in  all  actions  in  the  High  Court,  can  elect 
to  discontinue  his  action  or  part  of  it,  but  only  at  one  stage, 
before  or  immediately  after  defence.  It  woult]  seem  he  may 
discontinue  before  .delivery  of  statement  of  claim.  (/«) 

After  the  above  stage  he  must  apply  to  the  Court  or  a 
Judge  for  an  order  to  discontinue.  ^V'here  defendant  became 
bankru])t  after  verdict,  a  stet  prucesstis  might  be  ordered  unless 
the  assignees  gave  security   for  amount  of  the  verdict  and 

C0StS.(/i) 

(m)  See  Moylan  v.  Ileiily,  S  Ir.  Com.  Law  Kep.,  App.  '>'2. 
Qi)  Megaw  v.  De  Lizordi,  Ir,  Kep.  7  Com.  Law.  2U5,  Ex. 


DISCONTIXUAXCE.  5G9 

A  plaintiff  at  law  might  withdraw  the  record  which  ho  Order  22. 
entered  for  trial  at  any  time  before  it  appeared  in  the  day  list. 
He  could  also  when  the  record  was  called  on  or  any  time 
before  verdict,  elect  to  be  non-suited  and  proceed  to  trial 
again,  on  payment  of  costs.  Even  after  verdict  against  the 
defendant  and  befoi-e  judgment,  he  might  elect  to  enter  a 
nolle  prosequi  as  to  whole  or  part  of  the  action,  and  as  to  all  or 
some  of  the  defendant's,  although  after  a  verdict  against 
himself  he  could  not  do  so. 

Now  the  Court  must  be  applied  to  for  liberty  to  withdraw 
the  record  (unless  on  consent  signed  by  both  parties,  see 
Kule  2,  infra),  and  where  defendant  did  not  appear  on  the 
application,  the  order  was  to  withdraw  the  record  without 
prejudice  to  any  application  of  defendant  for  costs. (o) 

VVhether  a  plaintiff  may  now  elect  to  be  non-suited,  or 
enter  a  nolle  prosequi  is  not  altogether  clear,  see  Ord.  xl., 
K.  6,  infra. 

It  is  more  regular  to  discontinue  the  action  than  to  stay 
proceedings  on  jiayment  of  costs,  as  it  more  effectually  bars 
plaintiff  from  going  on  with  the  action  subsequently,  (/j) 

Withdrtacal  of  defence  or  counterclaim.  It  has  been  thought 
(but  not  decided),  that  this  rule  does  not  apply  to  make  it 
necessary  for  a  defendant  to  obtain  leave  to  withdraw  a  counter- 
claim. However,  the  defendant,  afterwards  did  in  this  case 
apply  to  the  Court  and  got  leave  to  do  so,  (9)  and  indeed  the 
latter  clause  of  this  rule  seems  to  be  without  meaning  if  it  is  not 
made  obligatory  on  a  defendant  to  obtain  leave  to  withdraw  his 
counterclaim  at  any  stage. 

At  Common  Law  a  defendant  might  at  any  time  before 
verdict  or  judgment  withdraw  his  plea  or  defence  without 
leave.  Latterly  this  was  restricted  after  notice  of  trial 
given.(r)  He  might  also  tile  a  plea  of  confession  relincpaish- 
ing  his  former  pleas,  unless  a  motion  were  pending  to  set  them 
aside.  (.?) 

AVhether  a  defendant  can  now  do  so,  or  confess  the  action 
in  part  and  defend  it  for  the  rest  is  not  clear,  and  it  seems 
his  safer  course  would  be  to  pay  money  into  Court  and 
plead  it,  as  to  so  much  as  he  admits.  (^) 

2.  When  a  cause  has  been  entered  for  trial,  it  may    rule  •_'. 
be   withch'awn  by    either    plaintiff  or   defendant,    ujion  with- 
producing   to  the  proper  officer   a  consent   in  writing,  drawing 
signed  by  the  parties.  entered  for 

trial. 
~  Ord.  2-3, 

(o)  See  Ferrard  v.  Arbnthnot,  20  Sol.  Jour.,   27;  Field,  J.  R-  2,  E. 

0^)  Anon.  W.  N.,  1S7G,  iO;  20  Sol.  Joiir.,  201,  Lindley,  J. 

(9)  See  Plimpton  v.  Spiller,  20  Sol.  Jour.,  391 ;  M.  k,  S.  G.  412, 
A.  C. 

(»■)  See  Bergia  i;.  "White.  Ir.  Eep.  4  Com.  Law,  306,  Q.  B. 

(.s)  See  Good  v.  Allen,  6  Ir.  Com.  Law  Eep.  244,  Q.  B. ;  and  see  46 
G.  0.,    1854,  as  to  stay  of  execution. 

(J)  See  Defries  v.  biewart,  11  Ir.  Com.  Law  Eep.,  App.  18,  C.  P. 


570 


REPLY   AND   SUBSEQUENT  PLEADINGS. 


Order  22. 

Rule  3. 

.Tudn'ment 
for  costs 
Oi  discon- 
tinuance. 
Ord.  KJ, 
June,  1S77. 


3.  A  defendant  may  sign  judgment  for  the  costs  of  an 
action  if  it  is  wholly  discontinued,  or  for  the  costs 
occasioned  by  the  matter  withdrawn,  if  the  action  be  not 
wholly  discontinvied. 

It  is  doubtful  -whether  the  actual  payment  of  the  costs  is 
now  as  heretofore  a  condition  precedent  to  the  operation  of  the 
notice  of  discontinuance, (m)  although  probably  a  plaintiff  would 
be  restrained  from  proceeding  in  afresh  action  until  he  had  paid 
them.(i') 


Order  23. 

Rule  1. 
Reply, 
tliree 
weeks  for. 
Ord.  24, 
R.  1,  E. 


Rule  2. 
Further 
pleading 
by  leave. 
Ord.  24, 
R.  2,  E. 


Order  XXIII. 

Rejoly  and  subsequent  Pleadings. 

1.  A  plaintiff  shall  deliver  his  reply,  if  any,  within 
three  weeks  after  the  defence  or  the  last  of  the  defences 
shall  have  been  delivered,  unless  the  time  shall  be  ex- 
tended by  the  Court  or  a  Judge. 

If  the  plaintiff  does  not  deliver  a  reply  within  the  period 
allowed,  the  consequence  is  that  the  pleadings  are  to  be  deemed 
closed  at  the  expiration  of  the  time  allowed,  andthes'atements 
of  fact  in  the  pleading  last  delivered  are  to  be  deemed  admittc'd.(7i') 
"Where  a  defemiant  pleads  a  defence  traversing  the  allegations 
of  the  plaintiff's  claim,  and  the  plaintiff  does  not  deliver  a 
reply  in  due  time,  this  state  of  things  does  not  entitle  defendant 
to  judgment  on  admissions  under  Order  39,  Kule  9.(j:)  The 
pleadings  having  closed  the  plaintiff's  duty  is  to  give  notice  of 
trial  within  six  weeks  after  issue  joined,  and  in  default  of  his 
doing  so  defendant  may  himself  give  such  notice,  or  he  may 
move  to  dismiss  the  action  for  want  of  prosecution  under 
Order  xxxv.,  11.  4. 

2.  No  pleading  svxbseqnent  to  reply  other  than  a  joinder 
of  issue  shall  be  pleaded  without  leave  of  the  Court  or  a 
Judge,  and  then  upon  such  terms  as  the  Coui-t  or  Judge 
shall  think  fit, 

Semhle  can  a  demurrer  to  a  reply  be  delivered  without  leave 
of  the  court  or  a  judge. (y) 

A  further  pleading  delivered  without  leave  may  be  set 
aside,  (z)  Where  the  court  Is  not  satisfied  there  is  a  bona  fide 
question  to  be  raised,  leave  may  not  be  given.(a) 

(m)  See  2  Ferg.  Pract.  1 020. 

\v)  See  Bredin  v.  Corcoran,  12  Ir.  Com.  Law  Kep.  App.  0,  Ex. 

(w)  See  Order  xxviii.,  R.  12,  infra. 

(.1-)  See  Litton  v.  Litton,  L.  R.,  3  Chan.  D.,  793;  24  W.  R. 
9G2. 

iy)  See  O'Brien  v.  Cecil,  4  Ir.  Com.  Law  Rep.  271,  Q.  B. ;  Dunne 
V.  Gormlev,  8  Ir.  Com.  Law  Kep.  App.  2,  (J.  15. 

(z)  Sce'Mulliyan  v.  Ciuite.  (!  Ir.  .lur.  319.  Ex. 

(o)  See  Daly  v.  Nolan,  7  Ir.  Jm-.  2G,  C.  P. 


CLOSE   OF   PLEADINGS — ISSUES.  O  i  i 

The  application  for  leave  will  pi-obably  be  by  motion  on   Order  23. 
notice,  (ft) 

3.   Subject  to  tlie  last  preceding  Rule,  every  pleading    Elle  •". 
subsequent  to  reply  shall  be  delivered  within  four  days  J^^^  days 
after  the  delivery  of  the  previous  pleading,  unless  the      '^  ^^ 
time  shall  be  extended  by  the  Court  or  a  Judge.  r.  3^  E.' 

If  a  rejoinder  or  other  jileading  be  permitted  and  not  delivered 
in  due  time,  the  result  will  be  that  the  pleadings  are  closed 
when  time  has  expired,  and  plaintiff  has  the  onus  of  giving 
notice  of  trial  as  explained  above  under  Rule  1. 


Order  XXIY. 
Close  of  Pleadings.  0rder_24. 

As   soon  as  either  party  has  joined  issue  upon  any  After 
pleading  of  the  opposite  party  simply  v^^ithout  adding  any  jsgue.*^ 
further  or  other  pleading  thereto,  the  pleadings  as  be-  ord.  25,  E. 
tween  such  parties  shall  be  deemed  to  be  closed. 


Order  XXV. 

Issues.  Order  25. 

The  practice  heretofore  in  use  under  the  Common  Law  Settlement 
Procedui'B  Amendment  (Ireland)   Act,   1853,  as  to  the  application 
serving  and   settling  of  issues  is   hereby  abolished ;  but  for. 
if  any  party  consider  it  expedient  from  the  state  of  the  ^*:*'^'''*- 
pleadings  to  have  issues  settled,  he  may  apply  to  a  Judge  "  ' 
in  Chamber  for  the  purpose. 

See  Com.  Law  Pro.  Act,  1853,  s.  102,  and  Chapter  li., 
p.  371,  ante.  The  plan  of  settling  issues  under  the  C^omnion 
Law  Procedure  Act,  had  not  on  the  whole  worked  satisfactorily, 
and  under  the  new  system  of  pleading  based  mainly  on  Chan- 
cery procedure,  it  is  expected  that  the  issues  in  fact  will  be 
raised  or  develop  themselves  sufficiently  without  having  re- 
course, either  to  the  elaborate  refinements  of  Common  Law 
Pleading,  or  the  laborious  and  somewhat  haphazard  process  of 
settling  them  before  a  judge,  before  either  party  was  fully 
informed  of  the  strength  or  weakness  of  his  ease  upon  the 
evidence  forthcoming. 

The  provision  contained  in  the  Schedule  Rule  No.  28  to 
this  Act,(c)  enabling  the  court  to  permit  all  alterations  or 
amendments  of  the  pleadings  necessary  for  the  purpose  of 
determining  the  real  question  or  questions  in  controversy  be- 
tween the  parties  will  work  (it  is  to  be  hoped)  in  the  same 
direction. 

(i)  See  Murphy  v.  >;ugent,  G  Ir  Jur.  302,  Ex.;  Dee  v.  Dee,  7  Ir. 
Com.  Law  Kep.  323,  Q.  B. ;  Baiiahan  v.  Wallace,  12  Ir.  Com.  Law 
Rep.  App.  13,  Ex. 

(c)  See  page  572  aud  corresponding  Order  27,  Eule  1,  L. 


[     572     ] 


Court 

may  order 

to  be 
amended 
or  struck 
out. 

Ord.  27, 
R.  1,  E. 


Order  26.  Order  XXVI. 

Amendment  of  Pleadings. 
Schedule  Rule  28. 

"  The  Court  or  a  Judge  may  at  any  stage  of  the  pro- 
ceedings, allow  either  party  to  alter  his  statement  of  claim 
or  defence  or  reply,  or  may  order  to  be  struck  out  or 
amended  any  matter  in  su.ch  statements  respectively, 
which  may  be  scandalous,  or  which  may  tend  to  prejudice, 
embarrass,  or  delay  the  fair  trial  of  the  action  :  and  all  such 
amendments  shall  be  made  as  may  be  necessary  for  the 
purpose  of  determining  the  real  questions  or  question  in 
controversy  between  the  parties  ;  and  all  parties  shall 
have  also  such  further  powers  of  amendment  as  may  be 
prescribed  by  rules." 

See  Order  XVIII.  R.  12,  ante,  which  seems  to  imply 
that  a  pleading  may,  by  way  of  amendment,  raise  a  new 
grovind  of  claim. 

The  very  wide  and  almost  unlimited  powers  of  amend- 
issue  joined  ment  Conferred  by  tlie  new  practice,  has  been  exercised 
at  a  stage  of  the  proceedings  at  which  it  was  formerly 
deemed  unsafe  and  unjustifiable,  i.e.,  after  issue  joined 
and  evidence  given,  and  when  a  cause  came  on  to  be 
heard,  and  the  result  of  the  evidence  was  found  not  to  lit 
the  case  as  stated, (c)  but  where(tZ)  the  plaintiff  had  made 
out  a  prima  facie  case  showing  he  was  entitled  to  some 
relief  other  than  that  which  he  might  get  on  his  pleadings 
[^not  other  than  that  which  he  had  prayed,  as  erroneously 
stated  in  one  report  of  the  case],(e)  the  Court  has  now 
given  leave  to  amend  his  pleading,  so  as  to  put  his 
claim  in  a  shape,  such  as  if  he  should  succeed  in  proving 
it,  he  will  be  entitled  to  a  deci'ee. 

In  the  case  referred  to  (King  v.  Cooke)  a  bill  against 
a  trustee  for  an  account  was  at  the  hearing  onre})lication, 
amended  by  stating  some  one  specific  act  of  wilful  de- 
fault, which  it  was  alleged,  had  been  established  in 
proof,  and  without  an  averment  of  which  on  the  pleading, 
a  decree  could  not  be  made,  as  for  wilful  default,  (/')  and 
this  was  allowed  on  the  terms  of  plaintiff  going  into 
no  further  evidence,  and  payiug  all  costs  of  the  hearing, 
and  restricting  the  amendment  to  charging  a  specific 
act  of  wilful  default,  with  liberty  to  defendant  to  answer 


Amend- 
iiieut  after 


and 

evidence 

given. 


(c)  See  Watts  v.  Hyde,  2  Ph.  40G,  overruling  V.  C.  Kuiglit  IJruio, 
.  C,  2  Coll.  3!»1. 

(d)  King  V.  Cooke,  L.  R.,  1  Chan.  D.  57,  24  W.  R.  23,  V.  C.  B. 
(f)  S.  C,  L.  R.,  1  Chan.  I).,  at  p.  fiO. 

(/')  Sleight  V.  Lawson,  3  Kay  &  J.  21)2. 


AMENDMENT   OF   PLEADINGS.  O/o 

the  amended  bill,  and  go  into  evidence  in  support  of  liis  Order  26. 
answer.  Again,  where  the  plaintift''s  bill  sought  to 
enforce  a  right  to  a  flow  of  water  along  a  watercourse, 
and  founded  his  title  on  a  grant,  and  also  on  prescrip- 
tion, and  failed  as  to  both  cases  on  the  hearing,  but  a 
'prirna  facie  case  of  a  difterent  character  appeared  to  be 
presented  by  the  evidence,  viz.,  that  the  watercourse  had 
been  constructed  by  the  plaintiff  himself  at  considerable 
expense,  while  the  defendant's  predecessor  in  title  stood 
by  and  allowed  him  to  proceed,  showing  acquiescence 
on  the  side  of  defendant,  and  opening  a  new  ground  for 
equitable  relief,  the  Court  allowed  plaintitf  to  amend  his 
bill,  raising  this  new  case,  defendant  having  liberty  to 
put  in  a  further  answer  (and  evidence  of  course)  and  re- 
serving the  costs. (gr)  So  where  a  cause  was  in  the  list 
for  hearing  with  witnesses  to  set  aside  a  voluntary  settle- 
ment on  the  gi'ounds  of  surprise  and  fraud,  and  the  soli- 
citor for  plaintifl' recently  learned  that  the  plaintifi"  at  the 
time  of  the  execution  of  the  settlement,  had  been  siifler- 
ing  from  mental  incapacity,  the  Coiu-t  allowed  the  cause 
to  stand  over,  plaintiff"  to  amend  his  bill  as  advised,  and 
to  file  fresh  affidavits  to  let  in  the  case  suggested,  with 
Jiberty  to  defendant  to  answer  and  go  into  evidence  on 
the  new  case,  and  reserving  the  costs  until  the  hearing. (A) 

In  a  defence  to  an  action  on  a  bond  setting  foi'th  Scandalous 
cohabitation  between  the  parties  and  false  representations  «|ruc™^out 
in  imnecessary  detail,  and  which  wex'e  unfit  to  ajjpear  on 
the  pleading,  they  were  struck  out. (  i  )  So  in  a  statement 
of  claim,  to  I'ecover  money  obtained  by  defendant  from 
plaintiff  by  fraud,  an  allegation  that  defendant  had  pursued 
a  similar  course  in  various  other  cases  was  struck  out  as 
scandalous  and  irrelevant.  (^)  See  also  Com.  Law  Pro. 
Act  (Ireland),  1853,  s.  83  ;  and  see  in  Chancery,  147, 148, 
and  149  G.  O.  3  Oct.  1867. 

A  statement   of    claim    seeking    damages  for    inter-  Embarrass- 
ference  with  plaintiff's  right  of  access  to  a  quay,  and  to  '"?  ^}-^^^' 
carry  coals  thither,  a  paragraph  to  the  effect  that  defen-  struck  out. 
dant  did    not  dispute  plaintiff's  rights  and  had  in  his 
correspondence    with  plaintiff's    solicitor    admitted    the 
plaintiff  to  be  entitled,  and  expressed  willingness  to  make 

(^)  Buddino-  V.  Murdock,  L.  R.,  1  Chan.  D.  42  ;  24  W.  E.  23,  M.  R. 
See  as  to  practice  formerly,  Lord  Darnley  v.  London,  Chatham,  and 
Dover  Railway  Company,  1  De  Ges,  Jo.  and  Sm.  204. 
-  Qi)  Roe  V.  IXavis,  L.  li.,  2  Chan.  D.  729  ;  24  W.  R.  606,  V.  C.  B. 

CO  Duncan  v.  Vereker,  W.  N.  1876,  64;   20  Sol.  Jour.  297,  Archi- 
bahl.  .1. 

(/.)  Blake  V.  Albion  Life  Assurance  Cy.,  24  W.  R.  677,  C.  P.  D. 


574  AMENDMENT   OF   PLEADINGS, 

Order  26.  the  necessary  arrangements  and  to  give  all  facilities  for 
the  purpose,  was  struck  out  as  defendant  could  not  know 
whether  to  ti^averse  the  admission  or  not.(^)  See  a  defence 
capable  of  several  constructions  and  leaving  it  doul)tful 
whether  defendant  who  was  sued  on  a  bond  as  surety  for 
faithful  service  of  another  person,  relied  on  his  being 
induced  to  execute  the  bond  by  false  pretences,  or  that 
the  representations  made  when  entering  into  it  con- 
stituted a  collateral  agreement  modifying  the  condition 
of  the  bond,  or  thirdly,  some  alteration  of  the  employment 
given  to  pi-incipal  and  the  risk.(«i) 

Where  in  an  action  of  slander  the  defence  contained  a 
paragi'aph  amounting  to  a  justification,  and  was  followed 
by  two  other  })aragraphs  denying  the  words  having  been 
spoken  or  spoken  in  the  sense  imputed,  the  latter  were 
struck  out.(7i) 

So  a  claim,  prolix  and  obscui'e,  was  ordered  to  be  struck 
out  if  not  aniended.  (o) 

Statements  which  are  matters  or  conclusions  of  law  and 
not  of  fact  have  been  struck  out.  (p) 
So  matters  of  evidence.  (17) 
So  prolix  and  unnecessary  statements,  (r) 
As  to  defences  alleged  to  be  false  and  tricky,  see  note.  (5) 
As  to  inconsistent  defences,  see  note.(i) 
Where  a  paragraph  had  been  struck  out,  and  reinserted 
with  slight  verbal  alterations,  the  amended  paragi-aph  was 
struck  out.(w) 

The  striking  out  of  a  pleading,  as   embarrassing  is  a 

(/)  Askew  V.  North  Eastern  Ky.  Cy.,  W.  N.,  1875,238;  2i»  Sol. 
Jour,  120,  Quain,  J.  See  similar  instances  in  former  practice,  Irish 
Society  v.  Crommelin,  Ir.  Kep.,  2  Com.  Law,  324:,  C.  P. ;  Eiorden  v. 
Cooper,  Ir.  Rep.,  8  Com  Law,  53'J,  Q.  B.,  where  the  statement  left  it 
doubtful  which  of  two  claims  plaintiff  intended  to  make. 

(m)  Stewart  v.  Robinson,  Ir.  Rep.,  3  Com.  Law,  fi'J,  Q   B. 

(n)  Restall  v.  Steward,  W.  N.  1875,  231  ;  20  Sol.  Jour.  99, 
Ouain,  J.     Heugh  v.  Chamberlain.  25  W.  R.  742,  M.  R. 

Co)  Moorhouse  v.  Colville,  W.  N.  187G,  12;  20  Sol.  Jour.  219. 
Lindlev,  J.  Cashen  i\  Cradock,  25  W.  R.,  4,  W.  N.  187G,  197,  V.  C.  B. 

(p)  Menhinick  v.  Turner,  W.  N.  1876,  55 ;  20  Sol.  Jour.  281,  Archi- 
bald, J. ;  see  Mor:;an  v.  Molony,  Ir.  Rep.  7  Com.  Law,  240,  C.  P. 

(q)  See  Chapter  li.  p.  381,  ante. 

(r)  Marsh  v.  Mayor  of  Pontefract,  W.  N.  1870. 

(«)  Leathley  v.  Carey,  8  Ir.  Com.  Law.  Rep.,  App.  1  ;  Stokes  v. 
Ilartnett,  10  Ir.  Com.  Law  Rep.,  App.  20;  and  contra,  O'Donnell  v. 
Reilly,  11  Ir.  Com.  Law  Rep.  329,  Ex.;  (rBrien  v.  Taggart,  14  Ir. 
Com.  Law  Rep.  App.  5;  Marquis  of  Drogheda  v.  IIanlon,Ir.  Rep.,  1 
Com.  Law,  319- 

(0  Barnicott  v.  Hann,W.  N.  187G,  24;  20  Sol.  Jour.  242. 

(?/)  .Vskew  V.  North  Eastern  Ry.  Cy.,  W.  N.  1S7G,  9;  20  Sol.  Jour. 
198,  Quain,  J. 


AMENDMENT   OF   PLEADINGS.  575 

matter  so  much  of  disci-etion  that,  as  a  general  rule,  no   Order  36. 
appeal  ^vill  be  entertained  in  respect  of  it. (v) 

It  has  been  held  that  the  Court  "will  allow  a  defendant 
to  amend  his  defence  imder  this  rule  "without  requiring 
an  affidavit  sho"wing  the  nature  and  necessity  of  the 
j^roposed  amendments,  but  on  terms  of  indemnifying  the 
plaintiff  against  the  costs  occasioned  by  the  applicant's 
omission  to  put  in  a  full  defence  at  once.(«;) 

Rules  of  Court. 
Amendment  of  Pleadings. 

1.  The  plaintiff  may,  "without  any  leave,   amend  his    Rule  i. 
statement  of  claim  once  at  any  time  before  the  expii-ation  Statement 
of  the  time  limited   for   reply  and  before  replying,  or,  once^^^^i'i'i^. 
"where  no  defence  is  delivered,   at  any  time    befoi-e  the  out  leave. 
expiration    of  four  "weeks    from    the   appearance  of  the  Ord.  27, 
defendant  "who  shall  have  last  appeared.  '^' 

See  Chancery  Orders— 1  1  and  12  G.  O.,  31  Oct.  1867.' 

If  a  demurrer  be  pending  to  a  pleading,  no  amendnoent  of 

it   can  be  made  "without  an   order ;    see  Ord.  xxvii.,  R,  7, 

infra. 

2.  A  defendant  "who  has  set  up  in  his  defence  any  Rdle  2. 
set-off  or  counter-claim  may,  without  any  leave,  amend  Set-off  or 
such    set-off  or   counter-claim  at   any   time    before    the  ^^1°*^^^! 

T    1  -  Claim,  once 

expn-ation  of  the  time  allowed  him  for  pleading  to  the  without 
reply,  and  before  pleading  thei*eto,  or  in  case  there   be  ^^^^■^• 
no  reply,  then  at  any  time   before    the   expiration   of  ^"^"l"  ^^' 
twenty-eight  days  from  the  filing  of  his  defence. 

3.  "Where  any  party  has  amended  his  pleading  under    Rule  3. 
either  of  the  last  two  preceding  Rules,  the  opposite  party  Appiica- 
may,  within   eight  days  after  the  delivery  to  him  of  the  disali^ow 
amended  pleading,  apply  to  the   Court,  or  a  Judge^  to  amend- 
disallow  the  amendment,  or  any  part  thereof,  and  the  '"*^"'" 
Court  or  Judge  may,  if  satisfied  that  the  justice  of  the  S""^!'  '^Z' 
case  requires  it,  disallow  the  same,  or  allow  it  subject  to     "   '    ' 
such  terms  as  to  costs  or  other-wise  as  may  seem  just. 

4.  "Where  any  party  has  amended  his  pleading  under    Rule  4. 
Rule  1  or  2  of  this  Order,  the  other  jiarty  may  apply  to  Leave  to 
the  Court  or  a  Judge  for  leave  to  plead  or  amend   his  '1°^"^"^  ^V 
former  pleading  within  such  time  and  upon  such  tei'ms  as  sWe?*'  ^ 
may  seem  just.  Ord.  2t, 
, , R.  5,  £. 

(«.)  Gelding  V.  The  Wharton  Salt  Works,  L.  K.,  1  Q.  B.  D.  37-t  •  24 
W.  E.,423,  A.C. 

(w)  Cargill  V.  Bo-sver,  L.K.,  4  Chan.  D.  78;  25  W.  R  "^''l 
Y.  (J.  M. 


or 


AMENDMENT   OF   PLEADINGS. 


Order  28. 


Rule  5. 
Applica- 
tion in 
other  cases. 
Orel.  27, 
R.  6,  E. 


Rule  6. 
Ameud- 
iiieiit  must 
be  made 
within 
the  time 
allowed. 
Ord.  27, 

n.  7,  E. 


Rule  7. 
Ainend- 
irient,  how 
made. 
Ord.  27, 
R.  8,  E. 


"Whore  plaintiff  amends  his  statement  of  claim  under  Ride  1 , 
the  defendant  cannot  without  leave  deliver  a  new  defence,  nor 
cait  he  even  delay  the  delivery  of  his  defence,  if  not  already 
delivered,  by  reason  of  the  amendment  without  applj'ing  to  the 
Court  or  a  Judge  for  liberty  to  do  so.  His  proper  course  is  to 
apj)ly  either  to  disallow  the  amendment  or  for  liberty  to  answer 
it,  or  to  amend  his  pleading  in  consequence  of  it.  If  he  omits 
to  follow  any  of  these  courses,  he  elects  to  abide  by  his  original 
defence,  and  admits  the  amendments  to  the  statement  of  claim, 
except  so  far  as  they  are  displaced  by  the  old  defence. (a;)  But 
he  need  deliver  no  further  pleading  unless  he  elects  to  apply 
for  liberty  to  do  so,  and  plaintiff  is  bound  to  take  the  next  step 
and  cannot  have  judgment  for  want  of  a  fresh  defence. (?/) 

5.  In  all  cases  not  provided  for  by  the  Act  or  the  pre- 
ceding Rules  of  tliis  Order,  application  for  leave  to  amend 
any  pleading  may  be  made  by  either  party  to  the  Court, 
or  a  Judge  in  Chambers,  or  to  the  Judge  at  the  trial  of  the 
action,  and  such  amendment  may  be  allowed  upon  such 
terms  as  to  costs  or  otherwise  as  may  seem  just. 

As  to  special  orders  to  amend  a  bill,  see  Chancery  Orders,  1 3 
and  l(i  G.  O.,  31  Oct.,  1867.  When  the  pleading" is  amended 
by  special  order,  it  is  presumed  the  order  will  prescribe  whether 
the  opposite  party  shall  have  liberty  to  answer  the  amendment 
or  not.     See  Cargill  v.  Bower,  ante,  p.  575. 

6.  If  a  party  who  has  obtained  an  order  for  leave  to 
amend  a  pleading  delivered  by  him  does  not  amend  the 
same  within  the  time  limited  for  that  purpose  by  the 
order,  or  if  no  time  is  thereby  limited,  then  within  fourteen 
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  i[iso 
facto  void,  unless  the  time  is  extended  by  the  Court  or  a 
Judge. 

See  Chancery  Order_17  G.  O.,  31  Oct.,  1867. 

7.  A  pleading  may  be  amended  by  written  alterations 
in  the  pleading  which  has  been  delivered, ^and  in  the  copy 
which  has  been  filed,  .and  by  additions  oil  paper  to  be 
interleaved  therewith  if  necessary,  unless  the  amendments 
re  piire  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  diffictdt 
or  inconvenient  to  read,  in  either  of  which  cases  the  amend- 


(.r)  r.oddy  V.  Wall,  W.  N.,  1877,  245,  M.  K.  ;  sec  previous  ca.'se 
of  Durbing'i'.  l.awrciicp,  W.  N.,  1S77,  182,  by  the  same  Judge,  wlio 
declined  to  follow  it  iu  15oddv  v.  Wall. 


DEMURRER.  577 

ment  must  be  made  by  delivering  the  pleading  as  amended,   Order  26. 
and  filing  a  copy  thereof,  both  of  which  in  actions  assigned  ^         > 

to  the  Chancery  Division  shall  be  printed,  when  printing- 
is  required,  under  Order  xviii.,  Rule  2. 

See  Chancery  Order— 18  G.  O.,  31  Oct.,  1867. 

8.  Whenever  any  pleading  is  amended,  such  pleading    Rule  s. 
when  amended  shall  be  marked  with  the  date  of  the  ordei-,  ^^^^  °^ 

if  any,  imder  which  the  same  is  so  amended,  and  of  the  amend-  ,' 

day  on  which  such  amendment  is  made,  in  manner  follow-  me ut.  i_ 

ing,  viz.  :  "Amended  day  of  ."  r' s  e' 

See  Chancery  Order— 23  G.  O.,  31  Oct.,  1867. 

9.  Whenever   a  pleading   is  amended,  such  amended     Rule  o. 
pleading  shall  be  delivered  to  the  opposite  party  within  delivery 
the   time  allowed  for  amending  the  same,  in  the  same  q^^  57,       / 
manner  as  is  provided  by  these  Rules  with  reference  to  K.  10,  e.     /^ 
such  pleading. 

See  Chancery  Order— .20  G.  O.,  31   Act,  1867- 

10.  The  Court,  or  a  Judge,  may,  at  any  stage  of  the    Rclt;  lo 
proceedings,  alloAv  the   plaintiff  to  amend  the   writ   of  Of  ■ 
summons  in  such  manner,  and  on  such  terms,  as  may 
seem  just. 

See  Chapter  Ixvi.,  (444)  p.  359,  ante. 


SUIU- 

mous. 


Order  XXVIT. 

Demurrer.  Order  27. 

1.  Any  party    may  demur   to   any    pleading    of  the     Rule  1. 
opposite  party,  or  to  any  part  of  a  pleading  setting  up  May  be 
a  distinct  cause    of   action,  ground   of  defence,    set-off,  !,'^y  °  ^° 
counter-claim,    reply,    or   as  the    case   may   be,  on    the  pleading 
ground  that  the  facts  alleged  therein  do  not  show  any  ^^  ^^^^  ^^• 
cause  of  action,  or  ground  of  defence  to  a  claim  or  any  ^^  "^' 
part  thereof,  or  set-off,  or  counter-claim,  or  reply,  or  as 
the  case  may  be,  to  which  effect  can  be  given  by  the  Court 
as  against  the  party  demurring. 

Where  any  paragraph  in  a  pleading  sets  up  a  distinct  cause 
of  action  or  defence  and  is  objected  to,  the  proper  course  is  to 
demur  to  it,  and  not  apply  to  strike  it  out.  (a) 

As  to  demurrers  at  Common  Law,  see  Com.  Law  Pro.  Act, 
1853,  s.  80.  Special  demm-rers  were  abolished  by  s.  81,  as 
regards  formal  matters  and  will  be  still  confined  to  objections 
based  on  the  ground  that  the  pleading  demurred  to  docs  not 

{a\  Watson  v.  Hawkins,  24  W.  R.  884,  C.  P.  D. 

2  c 


57S 


DEMURRER. 


Order  27.  shoT?  any  cause  of  action  or  defence  to  wliicli  the  Court  can  give 
effect.  If  the  part  of  the  pleading  or  paragraph  demuri'ed  to 
tends  to  show  the  party  pleading  is  entitled  to  some  relief, 
though  not  that  relief  indicated- in  the  part  of  the  prayer  to 
■which  the  fects  are  assigned,  it  is  nevertheless  not  demur- 
rable, thus  following  the  analogy  of  Chancery  practice,  (a) 
and  perhaps  so  long  as  the  facts  stated  entitle  the  pleader  to 
any  relief  at  all,  whether  expressly  prayed  for  or  not,  the  para- 
graph will  not  be  open  to  demur.  (5) 

Where  the  demurrer  was  taken  to  a  single  paragraph  as  in- 
sufficient in  law,  standing  alone,  but  when  taken  together  with 
the  next  it  raised  a  good  defence,  the  demurrer  was  over- 
ruled, (c) 

A  party  may  in  the  same  pleading  in  which  he  demurs  to 
one  or  more  paragi'aphs,  join  issue  upon  the  others,  and  then 
upon  the  argument  of  the  demurrer  he  will  be  taken  to  admit 
only  the  fiicts  stated  in  the  paragraphs  demurred  to.{d.) 

In  Chancery  where  a  demurrer  to  a  bill  had  been  overruled 
and  the  bill  amended,  and  the  defendant  answered,  not  raising 
the  objection  again  therein,  it  was  held  still  to  be  open  to  him 
at  the  hearing. (fZcZ) 

2.  A  demurrer  shall  state  specifically  whetter  it  is  to 
the  whole  or  to  a  part,  and  if  so,  to  what  part,  of  the 
pleading  of  the  opposite  party.  It  shall  state  some 
ground  in  law  for  the  demurrer,  but  the  party  demurring 
Grounds  of.  shall  not,  on  the  argument  of  the  demurrer,  be  limited 
rormof.  to  the  ground  so  stated.  A  demurrer  may  be  in  the 
Form  20  in  Appendix  (C.)  hereto.  If  there  is  no  ground, 
or  only  a  frivolous  ground  of  demurrer  stated,  the  Court 
or  Judge  may  set  aside  such  demuiTor,  with  costs. 

If  the  demurrer  be  taken  too  wide,  i.e.,  demurring  to  more 
of  the  pleading  than  is  open  to  demurrer,  it  would  seem  pro- 
bable that  the  judgment  will  be  given  distributively  as  at  law. 

If  it  state  two  groiuids  of  demurrer  and  one  ground  be  held 
good,  it  would  seem  the  demur  must  be  allowed,  as  in  Chancery 
pleading,  (e) 

SemUe  is  it  sufficient  to  say  that  the  statement  of  claim  dis- 
closes no  cause  of  action  as  this  form  would  render  it  impossible 
to  determine  whether  the  demurrer  was  frivolous  or  not.(/) 

The  party  demurring  need  not  assign  all  his  grounds,  pro- 
vided he  states  some  one  ground  of  objection,  inasmuch  as  he 
will  not  be  strictly  limited  to  the  grounds  stated.     This  was 

(a)  Watson  v.  Hawkins,  24  W.  K.  884,  C.  P.  D. 

(b)  S.  C  per  Luidley,  J.  at  p. 

(c)  Nathan  v.  Batchetor,  W.  N..  187G,  172,  Q.  B.  D. 
('/)  Watson  7'.  Hawkins,  ubi  supra  and  see  Rule  4,  infra, 
(dd)  Jolumsson  v.  Bonhole,  L.  1!.,  2  Cliaii.  D.  298,  C.  A. 
(e)  1  Daniel's  Chancery  Practice,  p.  Ctod,  4th  Ed. 
(/)  Stated  to  be  allowed.     Anon.  W.  N.,  187U,  37;  20  hoi.  Jour. 

2CU,  Liudley,  J. 


Rule  2. 

Jlust  state 
to  liow 
much  it  is 
taken,  <fec. 


Frivolous 
drd.  -28, 
R.  2,  E. 


DEMURREK,  570 

the  rule  in  both  Common  Law  and  Equity  pleading,  to  permit    Order  27. 

additional  grounds  to  be  relied  on,  ore  teims^  at  the  bar ;  but 

in  Equity  if  the  grounds  of  demurrer  expressed  were  disallowed 

while  the  demurrer  was  allowed  on  grounds  newly  assigned  on 

the  argument,  the  demurring  party  was  required  to  pay  the  same 

costs  as  if  the  demurrer  had  been  overruled. (g-)    But  a  demurer 

ore  tenus  can  only  be  taken  where  there  is  a  demurrer  in  fact 

assigning  some  one  ground  at  least  pleaded,  and  coextensive 

with  the  newly  raised  demurrer  as  to  the  part  of  the  pleading 

demurred  to.     If  the  ground  assigned  be  frivolous,  the  demurrer 

may  be  set  aside,  as  under  the  Com.  Law  Pro.  Act,  1853,  s.  83. 

A  demurrer  on  specific  grounds,  adding  "  and  on  other 
grounds  sufficient  in  law  to  sustain  the  demun-er,"  was  held  to 
entitle  the  pleader  to  raise  an  objection  on  the  ground  of  the 
Statute  of  Limitation,  and  Ord.  xviii.,  R.  11,  does  not  apply 
in  this  respect,  as  regards  claims  to  real  property, (7^)  but  not 
so  the  Statute  of  Frauds.  (AA) 

The  form  is  given  in  the  Appendix  C.  A  demurrer  need 
not  be  signed  by  counsel,  (i) 

3.  A  copy  of  the  demurrer  shall  be  delivered  in  tlie  same    rule  3. 
manner  and  within  tlie  same  time  as  any  other  j^ieading  Delivery 
in  the  action  after  the  writ  of  summons.  °^- 

Ord.  28, 
The  time  for  delivery  of  a  demurrer  is  within  eight  days  K-  >>'  E. 
after  delivery  ot  a  statement  of  claim,  Ord.  xxvii.,  K.  3 ;  when  the 
demurrer  is  to  a  defence  within  three  weeks  after  the  defence, 
Ord.  xxiii.,  R.  1,  and  within  four  days  alter  delivery  when  to 
any  subsequent  pleading,  Ord.  xxiii. 

As  to  delivery  and  filing,  see  Ord.  xxi.,  R.  21  and  23,  ante. 
As  to  extended  time,  see(A) 

4.  A  defendant  desiring  to  demur  to  part  of  a  statement    Rule  4. 

of  claim,  and  to  put  in  a  defence  to  the  other  part,  shall  Demurrer 

combine  such  demurrer  and  defence  in  one  pleading.     And  ■'^"f^ 

i  o  cieience 

SO  in  every  case  where  a  party  entitled  to  put  in  a  further  combined, 
pleading  desires  to  demur  to  part  of  the  last  pleading  of  Ord.  2S, 
the  opposite  ])arty  he  shall  combine  such  demurrer  and  ^'"  ^'  ^' 
other  pleading. 

A  party  may  demur  to  one  part  of  a  pleading  and  join  issue 
on  the  rest.(^) 

5.  If  the  party  demurring  desires  to  be  at  liberty  to  plead    rule  5. 
as  well  as  demur  to  the  same  part  of  a  pleading,  he  may,  Pleading 

aud  de- 

0)  47  G.  O.,  31  Oct.,  1867. 

(A)  Dawkins  v.  Lord  Penrhvn,  W.  N.,  1877,  140,  V.  C.  M.  ;  S.  C. 
affirmed,  W.  N.,  1877,  188;  21  Sol.  Jour.  730,  A.  C. 

(M)  Catling  V.  King,  L.  R.,5  Chan.  D.  G60 ;  25  W.  R.,  550,  A.  C. 
{i)  See  Schedule,  Rule  No.  23. 

Ik)  Hodges  V.  Hodges,  L.  R.,  2  Chan.  D.  112;  24  W.  R.,  293. 
(0  See  Watson  v.  Hawkins,  24  W.  R.,  884,  C.  P.  D. 

2  C  2 


580  DEMURRER. 

Order  27.  before  demiiiTing,  apply  to  the  Court  or  a  Jiidge  for  an 

inurrpr"  Order  gi^ang  liini  leave  to  do  so  ;  and  the  Court  or  Judge, 

to  same  if  satisfied  that  there  is  reasonable  gi'ound  for  the  demiirrer, 

feave^^  may  make  an  Order  accordingly,  or  may  reserve  leave  to 

Ord.  38,  him  to  plead  after  the  demuri-er  is  overruled,  or  may  make 

R.  5,  E.  guch  other  Order  and  ujjon  such  terms  as  may  be  just. 

In  Chancery  pleading  if  a  defenrlant  demurred  or  pleaded 
to  and  answered  the  same  portion  of  the  bill  his  answer  over- 
ruled his  demurrer;  but  this  was  altered  by  34  G.  O.,  31  Oct., 
1«157. 

At  Common  Law  a  defendant  could  only  plead  and  demur 
to  the  same  pleading  or  part  of  it  by  leave,  on  an  affidavit, 
if  required  by  the  Judge,  that  he  was  advised  and  believed  the 
ol)ieL'tions  raised  were  valid  in  law.  Com.  Law  Pro.  Act, 
1853,  s.  59. 

The  motion  for  liberty  to  plead  and  demur  used  to  be  on 
notice  in  the  Queen's  Bench.(;n)  The  Court  had  a  discretion 
to  oi'der  which  issue  should  be  determined  first,  and  it  was 
usually  the  demurrer  (w) 

A  plaintiff  was  allowed  to  plead  and  demur  to  a  defence, 
by  denying  certain  allegations  of  malice  contained  in  it,  and 
alleging  sufficient  notice  of  a  meeting  of  benchers,  and  demur- 
ring to  the  defence  on  the  ground  that  the  Society  of  the 
Benchers  was  the  proper  tribunal  in  the  matter,  and  that  the 
Court  had  no  jurisdictiom  to  interfere.(o) 

BuLE  G.  G.  When  a  demurrer  either  to  the  whole  or  part  of 
Entry  for  a  pleading  is  delivered,  either  party  may  enter  the  de- 
arguiiieut     ^Qxirrer  for   argument    immediately,   and   the   party    so 

111  ten  days,  .  ,     »^  ^     ^^  \^  1  • 

in  default     entering  such    demurrer    shall   on   the    same   day   give 
allowance     notice  thereof  to  the  other  party.     If  the  demurrer  shall 
^'    ^         not  be  entered  and  notice  thereof  given  within  ten  days 
R.  (i,  e!       after  delivery,   and  if  the  party  whose  pleading  is  de- 
murred to  does  not  within   such    time  serve  an   order 
for  leave  to  amend,  the  demurrer  shall  be  held  sufficient 
for  the  same  purposes  and  with  the  same  result  as  to 
costs  as  if  it  had  been  allowed  on  argument. 

A  demurrer  is  entered  for  argument  by  delivering  to  the 
proper  officer  a  memorandum  directing  him  to  enter  the  de- 
nuu-rer  of  the  plaintifi"  or  defendant,  as  the  case  may  be,  to 
the  defence,  &c.,  of  the  opposite  party.  See  Form  21, 
Schedule  C,  and  Rule  13,  infra. 

Paper  books  for  Judges  usual  at  Common  Law  (see  50 
G.  O.,  1854),  but  not  used  in  Equity,  are  not  spoken  of  in 
these  rules,  but  do  not  seem  to  be  abofished. 


(m)  M 'Lester  v.  Fagan,  9  Ir.  Com.  Law  Rep.,  App.  25. 
(;/)  Kni^rht  v.  Lvncli,  Ir.  Com.  Law  Rpp.,  App.  57. 
{n)  Manistv  v.  Keiicalv,  24  W.  R.  018,  V.  C.  H. 


DEMURRER. 


581 


Either  party  may  enter  the  demurrer  for  argument,  luit  the  Order  27. 
onus  lies  on  the  party  whose  pleading  Is  demurred  to,  either 
to  submit  to  amend  his  pleading  or  to  take  steps  to  get  rid  of 
the  demurrer,  by  setting  it  down,  otherwise  the  demurrer 
will  be  held  sufficient,  just  as  if  it  had  been  allowed  on 
argument,  and  the  party  taking  the  demurrer,  it  seems,  may 
apply  to  the  Registrar  or  Master  to  draw  up  an  order  for 
judgment  under  the  above  rule.(/;) 

When  the  demurrer  is  entered  and  called  on  for  argument, 
if  the  party  whose  pleading  is  demurred  to  fails  to  appear  and 
sustain  his  pleading  the  Court  will  give  judgment  foi'  the 
party  in  support  of  the  demurrer,  if  he  appears  and  without 
argument.  ((^) 

7.  Wliile  a  demurrer  to  the  vviiole  or  any  part  of  a     Eule  t. 
pleading  is  jiending,  such  pleading  shall  not  be  amended,  ^°,ft'^*''''^" 
unless  by  order  of  the  Court  or  a  Judge ;  and  no  such  pending. 
Order  shall  be  made  except  on  payment  of  the  costs  of  Oi-d.  -is, 
the  demurrer.  "   ' 

In  Chancery  practice  a  plaintiff  whose  bill  was  demurred  to 
might  allow  the  demurrer  by  side  bar  order,  and  by  same 
order  get  liberty  to  amend  his  bill;  see  53  G.  O.,  31  Oct. 
1867.  Now  an  application  to  the  Court  a  Judge  seems 
necessary. 

8.  Where  a  demurrer  to  the   whole  or  part  of  any    rule  s. 
pleading  is    allow-ed    upon   argaiment,    the  party  whose  Costs, 
pleading  is  demurred  to  shall,  unless  the  Court   other-  ai/o^-e^ 
wise  order,  pay  to  the  demurring  party  the  costs  of  the  ^^j.^  .^g^ 
demurrer.  i^-  s,  E. 

Semhie  this  does  not  Include  a  demurrer  to  a  statement  of 
claim  which  is  provided  for  by  Rule  9,  which  gives  the  costs  of 
the  action  as  well  as  the  costs  of  the  demurrer. 

Ths  Court  has  full  power  if  It  phases,  while  allowing  a 
demurrer  to  withhold  or  reserve  the  costs,  or  even  to  give  costs 
against  the  party  demurring,  ex.gr.  where  the  ground  of  demurrer 
has  been  some*  accidental  slip  In  pleading,  which  Is  practi- 
cally Such  as  no  man  of  common  sense  would  fail  to  under- 
stand, (r) 

9.  If  a  demurrer  to  the  whole  of  a  statement  of  claim     Rule  9. 
be   allowed,   the  plaintiff,   subject  to  the  power  of  the  Costs  of 
Court  to   allow  the    statement  of  claim  to  be  amended,  ^vh'en'to 
shall  pay  to  the  demurring   defendant  the  costs  of  the  entire 
action,  unless  the  Court  shall  otherwise  order.  '^''"™- 

AYhat  other  consequences  flow  from  the   allowance   of    a  r.  9^  e. 
demurrer  to  the  whole  statement  of  claim  beyond  payment  of 
costs  of  the  action  are  not  stated. 


Cp)  See  Wills  v.  Harris,  20  Sol.  Jour.  501,  V.  C.  JL 
(q)  Turner  v.  Samson,  W.  N.,  1S7G.  103  Q.  B.  D. 
(r)  See  Hodtres  r.  Hodges,  L.  R.,  2  Chan.   D.   112  ;   21  W.  R.  293; 
20  Sol.  Jour.  2U1,  M.  R. 


582 


DEMURRER. 


Rule  10. 
Allowance 
of  de- 

luurrer, 
pleailinn; 
struck  out. 

Orfl.  28, 
11.  10,  E. 


Order  27.  It  is  presumed  the  action  -will  be  dismisserl,  unless  the  Court 
sees  it  to  be  a  case  to  give  leave  to  amend ;  see  55  G.  O.  31 
Oct.  1867,  Chancery. 

10.  Wliere  a  demurrer  to  any  pleading  or  pai-t  of  a 
pleading  is  allowed  in  any  case  not  falling  within  the 
last  preceding  Rule,  then  (subject  to  the  power  of  the 
Court  to  allow  an  amendment^  the  matter  demurred  to 
shall  as  between  the  parties  to  the  demurrer  be  deemed 
to  be  struck  out  of  the  pleadings,  and  the  rights  of  the 
parties  shall  be  the  same  as  if  it  had  not  been  pleaded. 

In  all  cases  other  than  a  demurrer  to  a  statement  of  claim, 
for  which  see  Rule  9  above,  the  allowance  of  a  demun-er  with- 
out amendment  involves  the  previous  pleading  being  dealt 
with  as  if  struck  out  and  the  demurring  party  will  be  entitled 
to  apply  for  judgment,  as  in  default  of  pleading  a  defence  or 
replication  (as  the  case  may  be)  demurred  to,  and  the  previous 
pleading  of  the  party  who  has  demurred  will  be  considered 
as  unanswered.  As  to  leave  to  defendant  to  amend  after 
demurrer  allowed,  see.(s) 

11.  Where  a  demurrer  is  oveiTuled  the  demurring 
party  shall  pay  to  the  opposite  party  the  costs  occasioned 
by  the  demurrer,  unless  the  Coui't  shall  otherwise  direct. 

Where  a  defendant  demurred  to  a  claim  for  £150  per 
annum  and  failed,  he  was  deemed  to  admit  that  the  sum 
claimed  was  the  right  one  as  the  fair  value  of  the  premises  and 
otherwise  he  should  have  denied  it  specifically,  but  having 
taken  his  chance  of  succeeding  on  the  demurrer  and  it  being 
overruled,  judgment  was  given  for  full  amount  as  claimed.(^) 

12.  Where  a  demurrer  is  overruled  the  Court  may 
make  such  order  and  upon  such  terms  as  to  the  Court 
shall  seem  right  for  allowing  the  demurring  party  to 
raise  by  pleading  any  case  he  may  be  desirovis  to  set 
up  in  opposition  to  the  matter  demurred  to. 

The  words  "  to  raise  by  pl?ading,"  would  seem  to  imply  that 
the  demurring  party  cannot  denuu-r  de  novo  at  least  without 
leave,  (m)  The  Chancery  practice  to  allow  defendant  to  answer 
after  a  demurrer  is  followed. (m) 

13.  A  demurrer  shall  be  entered  for  argument  by 
delivering  to  the  proper  officer  a  memorandum  of  entry 
in  the  Form  No.  21  in  Appendix  (C). 

(s)  Metropolitan  Ry.  Co.  v.  Defries.  L.  R.,  2  Q.  B.  D.,  3S7,  A.  C 
Att.-Genl.  Mens.,  21  Sol.  Jour.,  (J31,  Fry,  J.  Bell  v.  Wilkinson, 
22  Sol.  Jour.,  22.5,  A.  C. 

(0  See  Stevins  v.  Maunder.s,  Ir.  Rep.,  2  Com.  Law,  305,  Ex. 

00  Bell  V.  Wilkiubou,  W.  N.,  1878,  2,  Q.  B.  D. 


KULE  11. 

Overruled 
demurrer, 
costs  of. 
Ord.  28, 
K.  11,  E. 


Rule  12. 
Pleading, 
after  de- 
murrer 
overruled. 
Ord.  28, 
R.  1-2,  E. 


Rule  13. 
Entry  for 
argument. 
Ord.  28, 
R,  lU,  E. 


[     583     ] 

Order  XXVIII. 
Default  of  Pleading.  0rder_28. 

1.  If  the  plaintiff,  being  bound  to  deliver  a  statement    Rule  i. 
of  claim,   does  not   deliver  the  same  within   the   time  ^'op- 
allowed  for  that   pui-pose,  the    defendant   may,  at   the  gt^atemJnt 
expiration  of  that  time,  apply  to  the  Court  or  a  Judge  of  chiim, 
to  dismiss  the  action  with  costs,  for  want  of  prosecution  ; 
and  on    the  hearing  of    such    application    the  Court  or  ^^^  ^j 
Judge  may,  if  no  statement  of  claim  have  been  delivered, 
order   the  action  to   be  dismissed  accordingly,    or   may 
make  such  other  Order  on  such  terms  as  to  the  Coiiit 
or  Judge  shall  seem  just. 

The  time  for  delivering  a  statement  of  claim  is  six  weeks 
from  time  of  defendant's  appearance,  Ord.  xx.,  R.  \,unte. 

The  motion  to  dismiss  the  action  for  want  of  prosecution  is 
analogous  to  the  judgment  of  non-pros  for  not  filing  a  declara- 
tion undei-  the  Com.'Law  Pro.  Act,  1853,  s.  38.  In  Chancery 
practice,  there  was  no  dismiss  for  want  of  prosecution  before 
plaintiff"  failed  to  file  a  repHcation  or  to  set  down  the  cause  on. 
bill  and  answer  or  on  motion  for  decree  within  the  proper  time, 
136  (t.  O  ,  31st  Oct.,  1867.  If  the  plaintiff  took  the  necessary 
step  before  the  motion  came  on  and  paid  the  costs,  or  if  he 
appeared  on  the  motion  and  undei-took  to  speed  the  cause  and 
paid  the  costs  of  the  motion  within  a  limited  time,  the  Court 
usually  forebore  to  dismiss  the  bill.  So  now  if  the  statement 
of  claim  be  delivered  meanwhile  and  costs  of  notice  be 
tendered  or  paid,  it  is  probable  that  no  order  to  dismiss  will  be 
made.  And  where  the  ilelay  in  delivering  the  statement  of  claim 
was  accountedfor  bynegotiations  being  in  progress,  a  fortnight's 
further  time  was  allowed  on  payment  of  costs,  the  Judge 
(V.  C.  Hall)  however,  declining  to  say  whether  the  old  Chancery 
practice  would  be  always  adopted.(M)  Where  the  statement 
of  claim  on  a  bill  of  exchange  against  indorsee  was  rendered 
unnecessaiy  by  the  demand  being  settled  in  another  action 
against  acceptor  and  defendant  had  given  a  cheque  for 
amount,  afterwards  dishonoured,  the  Court  refused  to  dismiss 
the  action,  or  to  allow  it  to  proceed  merely  to  determine  a 
liability  to  costs,  but  stayed  it  on  defendant  paying  costs  of 
vivit.(v)     As  to  order  to  remstate  after  action  dismissed.(t)u) 

2.  If  the  plaintiff's  claim  be  only  for  a  debt  or  liqui-    role  2. 

dated  demand,  and  the  defendant  does  not,  within  the  iSTon- 

time  allowed  for  that  purpose,  deliver  a  defence  or  de-  jjef'JiK:?to 

murrer,  the  plaintiff  may,  at  the  expiration  of  such  time,  liquidated 

enter  final  iudg-ment  for  the  amount  claimed,  with  costs.    <''"'"^- 
-^      ^ Ord.  29, 

(m)  Higginbotham  v.  Avnsley,  L.  R.  3    Chan.  D.,  288;  2i  W.  It., 
782,  V.  C.  H. 

(!)■)  Anon.  W.  N.,  1876,  37  ;  20  Sol.  Jour.,  261,  Lindley,  J. 
{vv)  \Yhistler  v.  Hancock,  W.  X.,  1878,  6,  A.C. 


chiim. 

Ord.  2 
K.  ■-',  t. 


584 


DEFAULT    OF   TLEADIXG. 


Rule  3. 
Affidavit 
of  sum 
due. 

92  G.O., 
1854,  C.L. 


Order  28.  See  Com.  Law  Pro.  Act,  1853,  s.  96.  As  to  what  is  a  de- 
fault,  see  Ord.  xxi.  R.  1,  ante. 

A  defendant  is  not  in  default  in  not  delivering  a  defence 
where  plaintiff  has  not  delivered  a  statement  of  claim,  even 
though  defendant  dispensed  with  it,(w')  unless  in  case  of  a  writ 
specially  indoi'sed  and  notice  given  under  Ord.  xx.  Rule  4, 
ante,(x)  and  default  in  answering  interrogatories  is  not  a  de- 
fault of  defence  under  this  rule.(?/) 

The  filing  of  a  petition  in  bankruptcy  against  a  defendant 
will  not  prevent  a  judgment  by  default  being  entered. (z) 

3.  Befoi'e  judgment  by  default  shall  be  entered  for  any 
debt  or  liquidated  demand  under  this  Order,  an  affidavit 
shall  be  filed  specifying  the  sum  then  actually  due. 

This  rule  follows  the  92  G.  O.  1854,  Common  Law,  which 
required  a  similar  affidavit. 

As  to  form  of  interlocutory  judgment  by  default  against 
some  of  the  Defendants,  see.  («) 

Rule  4.  4.  When  in  any  such  action  as  in  Rule  2  mentioned 

Judgment  there  are  several  defendants,  if  one  of  them  make  default 

ofseTera?^  as  mentioned  in  the  last  preceding  .Rule,  the  plaintiff  may 

defendants,  enter  final  jitdgment   against  the  defendant  so  making 

Ord.  29,  default,   and  issue  execution  upon  such  judgment  with- 

R.  3,  E.  Q,^^^  prejudice    to   his  right  to   proceed  with  his  action 
against  the  other  defendants. 

Formerly  if  plaintiff  signed  judgment  and  issued  execution 
against  one  of  several  defendants,  he  abandoned  his  action 
against  the  rest.  If  he  marked  judgment  against  some  and 
proceeded  against  the  others,  he  could  not  enforce  his  judg- 
ment afterwards,  unless  he  succeeded  against  all. 

Rule  5.  5.  If  the  plaintiff's  claim  be  for  detention  of  goods 
Interlocu-  and  pecuniary  damages,  or  either  of  them,  and  the  de- 
fendant makes  default  as  mentioned  in  Rule  2,  the 
plaintiff  may  enter  an  interlocutory  judgment  against  the 
defendant,  and  a  writ  of  inquiry  shall  issue  to  assess 
the  value  of  the  goods  and  the  damages,  or  the  damages 
only,  as  the  case  may  be.  But  the  Court  or  a  Judge 
may  order  that,  instead  of  a  writ  of  incpiiry,  the  value 
and  the  amount  of  damages,  or  either  of  them,  shall  be 
ascertained  in  any  way  in  which  any  question  arising  in 
an  action  may  be  tried,  or  by  inquiry  at  Chambers  in 
actions  assigned  to  the  Chancery  Division,  or  in  actions 


tory 
judgment 
I'or 

damages. 
Ord.  29, 
R.  4. 


{w)  Hooper  v.  Giles,  W.  N.  ISTfl,  10,  20  Sol.  ,Tonr.  217,  Liudley,  J. 

{x)  Atkin.s  v.  Tavlor,  W.  N.  1870,  11  ;  Limllev.  .Tustice. 

(v)  CuUev  V.  Buttifant,  L.  R.,  1  Clian.  D.  «4;  24  W.  K.  55,  V.  C.  H. 

(2)  Anou."  20  Sol.  Jour.  82,  Lush,  J. 

(a)  Gosset  v.  Campbell,  W.  N.  1877,  134,  Y.  C.  H. 


DEFAULT   OF   PLEADING.  585 

assigned  to  the  Queen's  Bench,   Conjmon  Pleas,  or  Ex-   Oraer^28. 
chequer  Divisions,  by  the   Master  of  the  Division,   iu 
the  manner  prescribed  by  the  Common  Law  Procedure 
Amendment  Act  (Ireland),  1853. 

As  to  writs  of  inquiry  to  assess  damages,  see  Com.  Law- 
Pro.  Act,  1833,  s.  lUO:  and  inquiry  directed  to  the  master 
with  a  jury  of  six,  s.  99. {h)  In  certain  cases  of  special  (hlK- 
culty  the  inquiry  was  sped  before  a  Judge  and  a  good  jury. (c) 

As  to  jurisdiction  of  sheriff  in  case  no  special  order  Is  made, 
see  note,(f/)  and  his  resort  to  a  legal  adviser  or  assessor.(e)  As 
to  the  proper  form  of  entry  of  interlocutory  judgment,  see^ee). 

6.  When  in  any  such  action  as  in  Hule  5  mentioned     Ri'tE  a. 
there  are  several  defendants,  if  one  of  them  make  default  ^^^^^°j 

as  mentioned  in  Rule  2,  the  plaintiff  may  enter  an  inter-  defendants, 
locutory  judgment  against  the  defendant  so  making  de-  q,.^.  o.,^ 
fault,  and  proceed  with  his  action  against  the  others.    And  K.  5,  E. 
in  such  case,  damages  against  the  defendant  making  de- 
fault shall  be  assessed  at  the  same  time  with  the  trial  of 
the  action  or  issues  therein  against  the  other  defendants, 
unless  the  Court  or  a  Judge  shall  otherwise  direct. 

7.  If  the  plaintiff's  claim  be  for  a  debt  or  liquidated     Rule  t. 
demand,  and  also  for  detention  of  goods  and  pecuniary  judgment 
damages,  or  pecuniary  damages  only,  and  the  defendant  ^^'^^^^  '^^^^^ 
makes  default  as  mentioned  in  Ptule  2,  the  plaintiff  may  interioeu- 
enter  final  judgment  for  the  debt  or  liquidated  demand,  tory  to 
and  also  enter  interlocutory  judgment  for  the  value  of  ^^^  ^^^ 
the  goods  and  the  damages,  or  the  damages  only,  as  the  r.  q^  £ 
case  may  be,  and  proceed  as  mentioned  in  Ptule  5. 

8.  In  an  action  for  the  recovery  of  land,  if  the  de-     Rule  s. 
fendant  makes  default    as    mentioned   in   Eule    2,    the  ^^J^^.^^.^ 
plaintiff  may  enter  a  judgment  that  the  person  whose  ofiand. 
title  is  asserted  in  the  writ  of  summons  shall    recover  Ord.  29, 
possession  of  the  land,  with  his  costs.  ■^-  ^'  ^' 

9.  Where  the  plaintiff  has  indorsed  a  claim  for  mesne     Rule  o. 
profits,  or  damages  for  breach  of  contract  upon   a  writ  j^^^^y/^'^^"" 
for  the  recovery  of  land,  if  the  defendant  makes  default  damages. 
as  mentioned  in  Rule  2,  or,  if  there  be  more  than  one  ord.  29, 
defendant,   and  some  or  one    of  the    defendants   make  i^-  ».  E. 
such    default,  the   plaintiff  may  enter  judgment  against 

the  defaulting  defendant   or  defendants  and  proceed  as 
mentioned  in  Rules  5  and  6. 


(6)  See  Honahan  v.  Ahem,  6  Ir.  Com.  Law  Rep.  Uf. 
(c)  See  BjTiie  v.  Martin.  Ir.  Rep.  4  Com   Law,  88  Q.  B. 
Id)  Segrave  v.  Duffy,  10  Ir.  Com.  Law  Kep.  App.  27,  Ex. 
(e)  Slevin  v.  Manders,  Ir.  Rep.  2  Com.  Law,  GoU,  Ex. 
(ee)  Cosset  v.  Campbell,  W.  N    1877,  134,  V.  C.  H. 

2c3 


K.  10,  E. 


58G  DEFAULT   OF   PLEADING. 

Order  28.  10_   In  all  other  actions  than   those  in  the  preceding 

KuLE  10.  Rules  of  this  Order  mentioned,  if  the   defendant  makes 

Motion  for  default  in  delivering  a  defence  or  demurrer,  the  plaintiff 

iu '"ui*-"'  may  set  down  the  action  on  motion  for  judgment,  and 

actions.  such  judgment  shall  be  given  as  upon  the  statement  of 

Orfi.  '-'o,  claim  the  Court  shall  consider  the  plaintiff  to  be  entitled  to. 

In  Chancery  actions  properly  so  called  (i.  e.  actions  specially 
assigned  to  the  Chancery  Divi.'^ion  by  the  J.  A.,  1877,  s.  3(j), 
where  defendant  makes  default  in  delivering  a  defence,  the 
case  is  not  to  be  treated  as  one  for  a  sunnnary  motion  for 
judgment,  on  admission  of  facts  under  Ord.  xxxix.,  R.  9,  infra, 
(f)  nor  as  it  seems  is  it  a  case  for  summary  judgment,  either 
final  or  interlocutor}'  under  any  of  the  preceding  rides,  (§•)  l^ut 
the  cause  should  be  regularly  set  down  for  trial  to  be  heard 
on  an  affidavit  that  the  defendant  has  made  default,  and 
notice  of  the  setting  down  the  cause  must  then  be  served  on 
the  defendant  (/).     The  usual  notice  had  better  be  given. (A) 

The  cause  will  then  come  on  for  trial  in  its  regular  order, 
and  it  seems  that  thereupon  the  several  allegations  in  the 
plaintiff 's  statement  of  claim,  not  being  denied,  they  must  be 
so  far  taken  as  admitted  as  on  the  old  application  for  a  decree 
pro  confesso,  see  Order  xviii.,  R.  10,  infra,  and  like  it,  subject 
to  defendant's  appearing  and  getting  leave  to  defend. 

When  the  cause  is  set  down  for  trial  it  will  come  on  in  its  turn 
and  not  on  ordinary  motion  days'. (i)  Of  course  it  may  be 
advanced  by  leave  of  the  Judge  where  all  parties  are  repre- 
sented and  consent.  (^) 

The  judgment  cannot  go  beyond  the  exact  purport  and 
exigency  of  the  statement  of  claim. (Z)  Where  plaintiff  was  in 
a  position  to  set  down  the  action  on  motion  for  judgment  against 
three  defendants  under  this  rule,  and  to  move  on  admission  of 
facts  against  a  fourth  who  had  taken  defence,  but  there  being 
a  question  of  construction  for  which  it  was  desirable  all  should 
be  before  the  Court  at  the  same  time,  it  was  ordered  the  action 
be  set  down  for  judgment  against  the  three,  and  to  give  notice 
of  motion  against  the  fourth  for  same  day.(?«) 

(J)  GiUot  V.  Ker,  W.  N.,  187G,  116,  24:  W.  E.  428,  M.  R. ;  Hall 
V.  Snelling,  20  Sol.  Jour.,  312,  M.  R.  ;  Bowen  v.  Bowen,  W.  N.,  1876, 
31  V.  C.  H. ;  Roupell  v.  Parson.?,  W.  N  ,  1876,  61  V.  C.  H. ;  sed  contra, 
Pearce  v.  Spickett,  W.  N.,  1876,  lO'J  V.  C.  M. 

(^)  Koupell  V.  Parsons,  W.  N.,  1876,  50,  24  W.  R.  269,  V.  C.  H. 

{li)  Hate  V.  Snelling,  W.  N.,  1876-77,  »wm«e  Hall  v.  Snelling,  20 
Sol.  Jour.,  312,  M.  K. ;  Lowndes  v.  Thomas,  20  Sol.  Jour.,  272, 
V.  C.  H. 

(0  Koupell  V.  Parsons,  24  W.  R.,  260;  W.  N.,  1876,61,  V  C.  IL  ; 
Attorney-General  v.  London  and  N.  W.  II.  Co.,  coram,  W.  R.  cited  there. 
Hall  V.  Snelling,  \V.  N.,  1876,  77,  M.  R.,  unless  everv  partv  consent, 
see  Bowen  v.  Bowen,  W.  N.  1876,  31  ;  24  W.  R.  246,"  V.  C."H. 

(/.•)  Bowen  V.  Bowen,  24  W.  R.,  246;  W.  N.,  1876,  31  V.  C.  H. 
See  Pearce  v.  Spickett,  W.  N.,  1876,  lO'J,  V.  G.  M.  Meakin  v.  Sykes, 
24W.R.,2!J3,  M.  R. 

(/)  Hall  V.  .^nelling,  ubi  supra. 

i'u)  Bridsou  V.  Buddinij.  24  \V.  R.,  392  ;  W.  N.,  1876,  103  V.  C.  H. 


DEFAULT   OF   PLEADING.  5S7 

In  a   later  case,  a  partition  action,  V.  C.   Hall  required  a    Order  28. 
jjeneral  affidavit  to  verify  the  statement  of  claim,  similar  to 
that   required    in    liquidated   actions    under    Kule  3    of   this 
Order.  («) 

If  the  action  be  one  not  specially  assigned  by  the  J.  Act  to 
the  Chancery  Division  and  range  within  the  subjects  of  the 
Rules,  preceding  Eule  10,  then  judgment  by  default  for  want 
of  defence  will  be  signed  by  the  Registrar  on  producing  the 
certificate  of  appearance  from  the  Clerk  oi"  Records  and  VV^rits 
and  the  statement  of  claim,  unless  it  appears  to  have  been  dis- 
pensed with,  and  also  an  affidavit  or  certificate  of  no  defence. 

11.  Where,  in  any   sucli  action   as  mentioned  in  the   Rule  il. 
last  preceding  Rule,  there  are  several  defendants,  then,  if  f^^^jj^ 
one  of  such  defendants  make  such  default  as  aforesaid,  defeiuiants 
the  plaintiff  may  either  set  down  the  action  at  once  on  in  Chan- 
motion   for  judgment  against  the   defendant   so  making  actfons. 
default,  or  may  set  it  down  against  him  at  the  time  when  ord.  2y, 

it  is  entered  for  trial  or  set  down  on  motion  for  judgment  K-  n.  ^■ 
against  the  other  defendants. 

12.  If  the  plaintiff  does  not  deliver  a  reply  or  demurrer,  j^^^"^^^^'" 
or  any  party  does  not  deliver  any  subsequent  pleading,  or  o/,.gp,y_ 

a  demurrer,  withui  the  period  allowed  for  that  purpose,  ord.  29, 
the  pleadings  shall  be  deemed  to  be  closed  at  the  expiration  R.  12,  E. 
of  that  period,  and  the  statements  of  fact  in  the  pleading 
last  delivered  shall  be  deemed  to  be  admitted. 

Where  statement  of  claim  has  been  amended  after  defence 
delivered  unless  defendant  chooses  to  deliver  an  amended 
defence,  plaintiff  should  either  reply  or  give  notice  of  tnal.(rt;0 

This  order  does  not  apply  to  a  plaintiff  in  default  for  not 
answering  a  bill.(o) 

When  the  default  alleged  is  not  answering  a  counterclaim, 
the  facts  should  be  specifically  stated  in  the  counterclaim. (/>) 

It  has  been  held  that  a  default  on  the  part  of  a  defendant 
in  delivering  a  defence  or  rejohider  is  not  an  admission  under 
Order  39,  R.  9. 

13.  In  any  case  in  which  issues  arise  in  an  action  other    eu^j:  13. 
than  between  plaintiff  and  defendant,  if  any  party  to  any  Default  in 
such  issue  makes  default  in  delivering  any  pleading,  the  P^^^'^^JS 
opposite  party  may  apply  to  the   Court  or  a  Judge  for  ^yith  thini 
such  judgment,   if  any,  as  upon  the  pleadings  he  may  pai-ty. 
appear  to  be  entitled  to.      And  the  Court  may  order  0'"d-_^29^ 


R.  13,  E. 


(«)  Senior  v.  Hereford,  W.  N.,  1876,  291,  V.  C.  II. 
(nn)  See  Durling  v.  Lawrence,  W.   N.,  1877,   182,  M.  R.,   contra, 
Boddy  V.  Wall,  W.  N.,  1877,  245,  M.  R. 

(0)  Sutton  V   Hugijins,  W.  N.,  1875,235,  M.  R. 

{p)  HiUman  v.  MaVhew,  24  W.  R  ,  485,  C.  P.  U. 

{q)  Gellot  V.  Ker,  W.  N.,  187G,  116,  24  W.  R.  428,  M.  R. 


588 


SEEVICE  OF  NOTICES. 


Order  28.  judgment  to  be  entered  accordingly,  or  may  make  sncli 
other  order  as  may  be  necessary  to  do  complete  justice 
between  tlie  parties. 

14.  Any  judgment  by  default,  whether  under  this 
Order  or  under  any  other  of  these  Rules,  may  be  set 
aside  by  the  Coui-t  or  a  Judge,  upon  such  terms  as  to 
costs  or  otherwise  as  such  Court  or  Judge  may  think  fit. 


RniiE  14 
Setting 
aside 
judgment 
on  terms. 
Ord.  2!), 
R.  14,  E. 


Order  29. 

Rule  1. 

Notices, 
&c.,  in 
Chancery 
Division. 


Rule  2. 
Copies 
left  for 
service. 


Service 
through 
post  office. 


1. 


Order  XXIX. 

Service  of  Notices,  c&c. 
In  the  Chancery  Division  all  notices,  orders,  sum- 
monses^ and  other  documents  not  requiring  personal 
service  shall  be  served  through  the  Notice  Department 
of  the  Record  and  Writ  Office  unless  a  Judge  shall  dii'ect 
some  other  mode  of  service. 

2.  Every  person  requii-ing  to  have  a  notice  or  other 
document  in  any  action  or  matter  which  is  assigned  to 
the  Chancery  Division  served  through  the  said  Notice 
Department,  shall,  before  the  hour  of  two  o'clock  in  the 
afternoon,  or  in  the  long  vacation  before  the  hour  of 
twelve  o'clock  at  noon,  and  in  the  other  vacations  before 
the  hour  of  one  o'clock  in  the  afternoon,  leave  with  the 
proper  officer  of  that  department  the  notice  or  other 
document  which  he  shall  require  to  have  so  served,  to- 
gether with  as  many  copies  thereof  as  he  shall  require  to 
have  served,  and  in  the  case  of  a  notice  of  motion  or 
summons,  two  copies  thereof  for  the  use  of  the  Court. 
The  notice  or  other  document  i-equired  to  be  so  served, 
and  also  the  copies  thereof  left  for  the  use  of  the  Court, 
shall  have  written  at  foot  thereof  or  indorsed  thereon 
the  name  and  registered  residence  of  each  solicitor,  and 
the  address  for  service  of  each  party  appearing  in  person, 
on  whom  the  same  is  to  be  served,  and  in  the  case  of  a 
solicitor  the  name  of  the  party  for  whom  he  has  appeared. 
There  shall  also  be  left  at  the  same  time  en\'elopes 
stamped  with  the  proper  postage  stamps  and  directed  to 
the  several  persons  to  be  served,  at  the  several  registered 
residences  and  addresses  for  service  indorsed  on  the 
notice  or  other  document  to  be  sei^ved.  The  clerks  of 
the  Notice  Department  shall  compare  the  several  copies 
so  left  with  the  notice  or  other  document  to  be  served 
and  see  that  they  correspond  with  the  same,  and  correct 
such  copy  if  necessary.  They  shall  compare  and  check 
the  addresses  of  the  several  enveloi)es  with  the  names 
and  addresses  on  the  notice  or  other  document  to  be 
served,  and  see  that  they  correspond,  and  place  the  copies 


SERVICE  OF  NOTICES.  58.9 

for  service  in  tlieir  respective  envelopes  and  secure  tlie   Order  29. 
same.       One  of  the  clerks  shall  deliver  into  the  proper 
receiver  at  the  General  Post  Office,  before  the  usual  time 
of  closing  the  evening  despatch,  the  several  envelopes 
Avith  the  copies  therein.      The   originals  of  the  several  Originals 
notices  and  other  documents  left  for  service  shall  be  pro-  ^^''^^* 
perly  filed  and  preserved,  and  the  same  shall  be  entered 
in  a  book  to  be  kept  for   the  purpose   in  the  Notice 
Department,    which   shall   contain   the    short   title    and 
record  number  of  the  action  or  matter,  the  date  of  service, 
a  sufficient  reference  to  the  oi'iginals  filed,  and  the  names 
of  the  parties  served,  and  each  siich  entry  shall  be  ini- 
tialed by  the  clerk  or  clerks  who  shall  so  post  the  same  on 
the  day  of  or  next  following  the  posting. 

The  comparing  of  the  notices  with  the  copies  by  the  clerks 
of  the  Notice  Department  is  a  new  duty,  and  seems  to  be 
scarcely  practicable  without  a  large  addition  to  the  ofBcial 
staff  and  to  the  time  allowed  for  the  discharge  of  the  duty. 

3.  The  certificate  of  the  proper  officer  of  the  Notice  Rule  3. 
Department,  that  a  notice  or  other  document  was  duly  Certificate 
transmitted  by  post,  shall  be  sufficient  proof  of  service. 

4.  All  pleadings  in  actions  assigned  to  the  Chancery,    Ktoe  4. 
Queen's  Bench,  Common  Pleas,  and  Exchequer  Divisions,  Delivery 
and  all  notices,  orders,  summonses,  and  other  documents  n^ents,  how 
in  actions   assigned  to    the   three    last-named  divisions  effected, 
which  may  require  to  be  delivered,  and  do  not  requii-e  Ord.  is, 
])ersonal  service,  shall  be  served  by  delivering  the  same    "   ' 
personally  to  the  solicitor  of  the  party    to  be  seiwed, 

when  he  appears  by  solicitor,  or  leaving  same  at  the 
i-egistered  residence  of  such  solicitor,  with  his  clerk  or 
servant,  or  when  the  party  appears  in  person,  by  deliver- 
ing the  same  to  such  party  personally,  or  leaving  the 
same  for  him  at  his  address  for  service  with  a  servant 
or  other  inmate  of  the  house.  When  no  appearance  in  default 
has  been  entered  for  a  part}^  then  any  pleading  or  other  of  appear- 
document  required  to  be  delivered  to  him  shall  be  de- 
livered by  being  filed  with  the  proper  officer. 

Notice  of  motion  for  judgment  against  a  defendant  who  has 
not  appeared  is  to  be  lodged  with  the  officer.  {I) 

5.  When  a  person  who  is  not  a  party  appears  in  any    Ettle  5. 
proceeding,    either   before   the  Court   or  at    Chambers,  Serrice 
service  may  be  made  upon  the  solicitor  by  whom  he  p^rgons. 
appears,  or  upon  the  party  so  appearing  if  he  appear  in 
person. 

(0  Parsons  r.  Harris,  25  W.  R.  410,  W.  X.,  1877,  76,  V.  C.  H.; 
Williams  v,  CardweU,  25  W.  R.  64G,  W.  N.    1877,  1-iO,  V.  C.  M. 


Order  30. 


[      590      ] 

Order  XXX. 

Payment  into  Court. 
Schedule  Rule  30. 

"  Where  any  action  is  brouglit  to  recover  a  debt  or 
damages  any  defendant  may  at  any  time  after  service  of 
the  writ  and  before  or  at  the  time  of  delivering  his  de- 
fence, or  by  leave  of  the  Court  or  Judge,  at   any  time, 
Ord.  30,       pay  into  Court  a  sum  of  money  by  way  of  satisfaction  or 
K.  1,  E.       amends. 

''  Payment  into  Court  shall  be  pleaded  in  the  defence, 
and  the  claim  or  cause  of  action  in  respect  of  which  such 
payment  shall  be  made  shall  be  specified  therein. 

"  See  Com.  Law  Pro.  Act,  1853,  s.  74." 

The  Com.  Law  Pro.  Act,  1853,  s.  75,  authorizes  pay- 
ment of  money  into  Court  in  satisfaction  of  the  claim  in 
personal  actions,  but  with  some  important  exceptions,  ex. 
gr.,  assault  and  battery,  false  imprisonment,  libel, 
slander,  malicious  arrest  or  prosecution,  criminal  conver- 
sation. These  exceptions  are  now  I'emoved  by  Schedule 
Rule  30. 

Lord  Campbell's  Act,  6  (fe  7  Vic,  c.  96,  s.  2,  enabled 
money  to  be  lodged  in  libel  after  a  sufficient  apology,  (a) 
Other  statutes  enabled  Justices  of  the  Peace  to  lodge 
money  in  certain  actions. 

The  rule  seems  to  have  little  if  any  application  to 
Chancery  actions  proper,  i.e.,  actions  specially  assigned 
to  the  Chancery  Division  by  the  Act. 

Under  the  rule  it  seems  that  any  one  defendant  is 
enabled  to  lodge  money  wdthout  the  concurrence  of  the 
others.  A  defendant  may  admit  part  of  the  action  and 
suffer  judgment  thereon,  Avithout  bringing  money  into 
Court, (6)  but  the  principal  object  of  paying  money  into 
Court  is  to  save  the  further  costs  of  the  action. 

Under  the  present  rule,  payment  may  be  made  at  any 
time  after  service  of  the  writ  down  to  time  of  pleading, 
and  without  any  leave  or  order,  and  it  seems  to  be  the 
proper  course  to  pursue  before  defence,  instead  of  appl\'- 
ing  to  stay  the  action  on  payment  of  the  amount,  (c) 

After  delivery  of  a  defence  payment  can  only  be  made 
by  leave  of  the  Court  or  a  Judge,  and  then  it  will  pro- 


(a)  See  Jones  v.  Mackie,  L.  R  3,  Ex.  1. 

(h)  See  Tudor  v.  Furlono-,  Ir.  Eep.,  '6  Cum.  Law  7,  Q.  B.  ;  Dou-las 
V.  Cowden,  Ir.  Hep.,  4  Com.  Law  202,  C.  P.  contra;  Defriw  v. 
Stewart,  11  Ir.  Com.  Law  Kcp.  18,  C.  P. 

(f)  See  Anon.  W.  N.,  1S75,  201;  20  Sol.  Jour.  50,  Lush,  J. 


PAYMENT   INTO    COURT   IN   SATISFACTION.  591 

bably  involve   an  amendment    of  the   defence,   as    tlie   Order  30. 
payment  must  be  expressly  pleaded. 

The  rule  requires  it  to  be  specified  what  claim  or 
cause  of  action  it  is  in  respect  of  which  it  is  intended  to 
be  made.((:Z) 

A  plea  of  payment  was  deemed  inconsistent  with 
any  other  defence  to  the  same  portion  of  the  cause  of 
action,  and  would  not  be  permitted, (e)  and  the  new  rule 
on  the  siibject  has  been  interpreted  in  the  same  manner  ; 
thus  a  plea  of  payment  to  an  action  for  a  nuisance 
raising  a  question  of  title  accompanied  by  a  defence  deny- 
inw  the  plaintifi's  right  of  action  in  respect  of  the  same 
part  of  the  claim  was  struck  out.{f) 

Order  XXX. 
Payment  into  Court  in  Satisfaction. 
1.  If  the  action  shall  be  pending  in  the  Queen's  Bench,    Sule  i. 
Common   Pleas,   or    Exchequer  Division,  payment   into  ?^^™';"jj"g 
Court  in  satisfaction  shall  be  made  by  lodging  the  money  ^^^  "'^ 
in  the  Bank  of  Ireland  on  behalf  of  the  party  who  shall  r.  2',  e.' 
make  such  lodgment,  with  the  privity  of  the  Master  of 
the  Division,  and  to  the  credit  of  the  action  ;  and  such 
Master,  on  the  certificate  of  such  lodgment  being  delivered 
to  him,  shall  give  a  receipt  for  the  amount ;  and  if  the 
action  shall  be  pending  in  the  Chancery  Division,  the 
payment  shall  be  made  by  lodging  the  money  in  the  Bank 
of  Ireland  on   behalf  of  the  party  who  shall  make  such 
lodgment,  with  the  privity  of  the  Accountant-General,  to 
the  credit  of  the  action,  suit,  or  matter,  and  the  Accountant- 
General  shall  certify  such  lodgment. 

See  Com.  Law  Pro.  Act  (Ire.)  1833,  s.  75. 

The  proper  officer  is  here  specified  to  be  the  Accountant-  Lodgment, 
General  of  the   Chancery  Division,   and   the   Master  of  the  liow  made. 
Common  Law  Division.    Payment  will  be  by  lodgment  in  the 
Bank  of  Ireland  with  the  privity  of  the  proper  officer,  and  to 
the  credit  of  the  action.     A  docket  (called  a  privity)  autho- 
rizino-  the  lodgment  should  first  be  obtained  from  the  officer. 

When  the  bank  certificate  of  lodgment  is  produced  to  the 
ofiicer  he  will  five  a  receipt  for  amount  in  margin  of  the  de- 
fence, or  in  case  of  a  Chancery  Lodgment,  a  certificate. 

The  notice  of  lodgment  before  defence  filed  is  intended  to  Notice  cf 
save  the  expense  of  pleading  a  defence  in  case  the  amount  be  lodgmcut. 
accepted  within  four  days. 


(d)  See  Eyani;.  Horgan,  13  Jr.  Com.  Law  Rep.,  App.  34,  Q.  B. 

(e)  Kelly    v.  Slator,  7    Ir.    Com.    Law  Rep.    55,  C.  P.  ;    and  see 
Barrvv.  M'Grath,  Ir.  Rep.  3,  Com.  Law  576,  C.  P. 

(/)  Spurri;.  Hall,  L.  R.  2,  Q.  B.  D.  615. 


592 


PAYMENT   INTO    COURT   IN    SATISFACTION. 


Order  30. 

Rule  2. 
Notice  of 
payment 
to  Plalutiff. 
Orel.  30, 
R.  2,  E. 

IlULE  3. 

Payment 
to  Plain- 
tiff. 

Orel.  30. 
R.  3,  E. 


Rule  4. 

Notice  of 
acceptance 
in  satis- 
faction. 
<  >rd.  30, 
R.  4,  E. 


2.  If  siicli  payment  be  made  before  delivering  his 
defence,  the  defendant  shall  thereitpon  serve  upon  the 
plaintiff  a  notice  that  he  has  paid  in  such  money,  and 
in  respect  of  what  claim,  in  the  Form  No.  5  in  Appendix 
(B)  hereto. 

3.  [If  by  the  notice  so  served,  or  by  a  defence  delivered 
by  a  defendant  by  whom  the  money  has  been  so  lodged, 
such  defendant  shall  admit  the  right  of  the  plaintiif  alone 
to]  the  money  paid  into  Court  as  aforesaid,  it  may,  unless 
otherwise  ordered  by  a  Judge,  be  paid  out  to  the  plaintiff  or 
to  his  solicitor  on  the  written  authority  of  the  plaintiff. 
No  affidavit  shall  be  necessary  to  verify  the  plaintiff's 
signature  to  such  written  authority  unless  specially  re- 
quired by  the  officer  of  the  Court. 

The  passage  in  brackets  is  not  contained  in  English  Rule. 

Under  the  Com.  Law  Pro.  Act,  18-53,  s.  76,  plaintift" might 
apply  to  draw  the  money  any  time  before  verdict  or  judgment 
for  defendant,  and  was  entitled  to  have  it  handed  over  to  him. 
The  rule  3  does  not  say,  but  seems  to  imply,  the  plaintifi" 
may,  at  any  time,  unless  otherwise  ordered,  draw  the  money 
without  accepting  it  in  satisfaction,  and  proceed  with  his  action 
at  the  peril  of  costs.  A  Judge's  order  may  put  a  stay  on  the 
I^ayment,  and  the  consequence  would  seem  to  be  that  it  remains 
in  Court  to  answer  defendant's  costs,  as  it  did  under  sec.  76 
of  the  C.  L.  P.  Act.  If  the  sum  afterwards  be  found  enough 
to  satisfy  the  plaintiff's  demand,  he  may  have  to  jsay  costs  in- 
stead of  receiving  them,  (g) 

4.  The  plaintiff,  if  payment  into  Court  in  satisfaction 
is  made  before  delivering  a  defence,  may  within  four  days 
after  receijit  of  notice  of  such  payment,  or  if  such  pay- 
ment is  first  stated  in  a  defence  delivered  then  may  be- 
fore reply,  accept  the  same  in  satisfaction  of  the  causes  of 
action  in  respect  of  which  it  is  paid  in ;  in  which  case  he 
shall  give  notice  to  the  defendant  in  the  Form  No.  G  in 
Appendix  (B)  hereto,  and  shall  be  at  liberty,  in  case  the 
sum  paid  in  is  accej^ted  in  satisfaction  of  the  entire  cause 
of  action,  to  tax  his  costs,  and,  in  case  of  non-jiayment 
within  forty-eight  hours,  to  sign  judgment  for  his  costs 
so  taxed. 

If  the  plaintiff  accepts  the  money  in  satisfaction  of  his  de- 
mand, he  acquires  a  vested  right  to  his  costs  up  to  that  time, 
buf  if  he  proceeds  with  the  action  he  may  forfeit  it.{g(i) 


(!j)  Langridge  v.  Campbell,  L.  E.  2,  Ex.  D.  281,  25  W.  R.  351. 

((///)  Langridge  v.  Campl)ell,  L.  K.  2,  Ex.  D.  281,  25 _W.  K.  351  ; 
and  see  O'Kiordaii  v.  O'Kiordan,  Ir.  Ylep.  10  Com.  Law,  517,  C.  V.,  a 
case  of  tender  of  a  bank  draft  wantonly  refused. 


DISCOVERY   AND   INSPECTION.  593 

The  plaintiff's  riolit  to  sign  judgment  for  his  taxed  costs,  is    Order  30. 
not  so  absolute  that  it  may  not   be   displaced  by  a   Judge's  Acceptance 
order  depriving  him,  for  sufficient  reasons,  of  them  under  order  in  satis- 
55,  English,  corresponding  to  J.  A.  1877,  s.  53.     As  where  a  faction, 
defendant  had  offered  to  pay  £33,  which  was  refused  and  a  writ 
served  for  £43,  on  which  defendant  lodged  £33,  and  plaintiff 
then  accepted  it  in  satisfaction. (A) 

If  the  sum  be  not  accepted  in  satisfaction,  its  sufficiency  will  Refusal, 
be  tried  by  the  Judge  or  the  jury,  and  In  case  it  be  found  lor 
the  defendant,  he  will  be  entitled  to  judgment  and  doubtless 
get  his  costs  of  suit.  See  Com.  Law  Pro.  Act,  1833,  s.  78. 
He  was  under  the  old  procedure  entitled  to  all  his  costs  from 
the  commencement  of  the  action. fi) 

If  a  greater  sum  was  recovered  than  that  paid  into  Court  it 
was  considered  as  if  struck  out  of  the  claim,  and  the  verdict 
and  judgment  taken  for  the  balance  merely.  (A) 


Order  XXXI. 
Discovery  and  Inspection. 

1 .  Interrogatories.  Order  31. 

1.  The  plaintiff  may,  at   the  time  of   delivering  liis    Rule  i. 
statement' of  claim,  or  at  any  subsequent  time  not  later  P'^^'^^^''^' 

,  *^  ■*■  tiine  lor, 

than  the  close  of  tlie  pleadings,  and  a  defendant  may  at  without 
the  time  of  delivering  his  defence,  or  at  any  subsequent  leave. 
time  not  later  than  the  close  of  the  pleadings,  without  l''"^'-  •^^' 
any  order  for  that  purpose,  and  either  party  may  at  any 
time  by  leave  of  the  Court  or  a  Judge,  deliver  interi'o- 
gatories  in  writing  for  the  examination  of  the  opposite 
party  or  parties,  or  any  one  or  more  of  such  parties,  with 
a  note  at  the  foot  thereof,  stating  which  of  such  interro- 
gatoi'ies    each  of  such   persons  is   required    to    answer : 
Provided  that  no  party  shall  deliver  more  than  one  set  of  One  set. 
interrogatories  to  the  same   party  without  an  order  for 
that  purpose. 

Discovery  in  Equity,  was  had  latterly  by  a  series  of  interro-  Previous 
gatories  disconnected  from  the  bill  and  delivered  seperately,  i,|*equUy 
and   within  eight  days  after  the  time  limited  for  defendant's  and  at 
appearance.(«)     No  order  or  leave  was  necessary  within  the  common 
prescribed  time.     At  Common  Law  plaintiff  re(|uired  the  leave  ^'^^^'• 
of  the  Court  to  deliver  interrogatories  to  a  defendant  and  v.  v., 
and  the  application  was  supported  by  affidavit  of  the  party  or 

(/O  Broadhurst  v.  Willey,  W.  N.  1876,  21,  20  Sol.  Jour.  210, 
Lindley,  J. 

(i)  Farmer  v.  Fottrell,  8  Ir.  Com.  Law  Rep.  228,  Ex. ;  but  see  Harold  v. 
Smith,  5  H.  &  N.  381. 

(k)  Hughes  v.  Guinness,  4  Ir.  Com.  Law  Rep.  314,  7  Ir.  Jur.  298. 

(«)  Chan.  (Ire.)  Act,  1867,  s.  61;  41  &  42  G.  0.,  31st  Oct.,  1867. 


594 


DISCOVERY   AND   INSPECTION. 


Order  31. 
Rule  1. 


More  ex- 
tensive 
rights 
under  new 
procedure. 


At  dis- 
cixtiuu  of 
party. 


By  leave. 


Out  of 

jiiriidic- 

tiou. 


Only  to 
parties. 


his  attorney,  stating  his  belief  that  he  would  derive  material 
benefit  in  the  cause  from  the  discovery  sought,  and  that  he 
had  a  good  cause  of  action  or  defence  on  the  merits,  and  when 
a  defendant,  that  the  discovery  was  not  sought  for  the  purpose 
of  delay.  (5)  He  was  also  required  to  state  the  matters  as  to 
which  the  discovery  was  sought,  (c)  The  Court  was  thus 
expected  more  or  less  to  settle  the  specific  questions  to  be 
allowed,[and  to  discriminate  as  to  their  relevancy  and  materiality ; 
matters  which  could  as  to  many  interrogatories,  only  be  ascer- 
tained by  the  nature  of  the  answers  given  to  previous 
questions.  The  requirement  of  an  affidavit  as  to  a  good  cause 
of  action  or  defence,  might  in  certain  cases  preclude  the  resort 
to  discovery  altogether,  as  where  the  party  was  in  doubt  as  to 
the  verv  facts  upon  which  the  validity  of  his  action  or  defence 
depended. 

The  New  Procedure  affords  the  fullest  opportunities  of 
discovery  of  every  kind,  but  whether  more  extensive  in  its 
range  than  befoi'e  seems  not  quite  settled.  "Within  certain 
limits  of  time,  discovery  of  facts  may  be  had,  as  of  right  and 
without  any  order  or  leave  (provided  the  action  has  been 
commenced  since  1st  January,  1878).(fZ)  and  inspection  of 
documents  obtained  on  an  application  almost  as  of  course  and 
on  the  slightest  grounds,  and  without  affidavit,  (e)  unless  the 
Judge  for  some  special  reason  thinks  fit  to  require  one.(_/) 

Interrogatories  may  be  administered  very  much  at  the 
discretion  of  the  party,  subject  of  course,  to  the  wholesome 
correction  of  their  being  struck  out  if  improper  or  premature, 
or  not  sufficiently  material  at  the  stage  of  the  action  selected 
by  the  party. 

^^'here  an  order  becomes  necessary,  as  against  a  public 
company — or  after  the  allotted  time — the  Judge  will  look  into 
the  proposed  interrogatories  and  may  refuse  to  allow  them  if 
he  deems  them  premature  or  unnecessary,  or  he  may  adjourn 
the  application,  ex.  gr..,  till  after  defence  is  delivered,  (o-)  and 
after  issue  joined,  an  affidavit  may  be  required  as  under  the 
old  system. (A) 

To  deliver  interrogatories  out  of  the  jurisdiction  an  order 
seems  to  be  necessary,  but  it  may  be  combined  with  an  order 
for  liberty  to  issue  the  writ  and  to  serve  it  out  of  the  jurisdic- 
tion, (z) 

Interrogatories  can  only  be  addressed  to  parties  in  the  suit, 
and  If  a  plaintiff  wants  information  from  third  persons  he  must 


(b)  Com.  Law  Pro.  Act,  1856,  s.  5G. 

(c)  See  Naughten  v.  Midland  Great  W.  E.  Co.,  8  Ir.  Com.  Law 
Kep.,  App.  55. 

id)  See  Anon.  20  Sol.  Jour.,  SI,  Lush,  J. 

(e)  See  Moslyn  v.  Westera  Coal  and  Iron  Co.,  W.  N.,  1875,  260, 
Huddlestone,  B. 

(/)  See  Mattock  v.  fleath,  W.  N..  1875,  201,  Lush,  J. 

ig)  Hewetson  f.  Whittington  Life  Insurance  Co.,  W.  N.,  1875;  20 
Sol.  Jour.,   179,  Lush,  J. 

(A)  Anon.  20  Sol.  Jour.,  32,  Lush,  J. 

(^i)  Young  V.  Brassy,  W.  N,,  1875,  230,  V.  C.  II. 


DISCOVERY   AND   INSPECTION.  595 

make  them  defendants. (ii)     If   a  defendant  wants  discovery    Order  31. 
from  a  co-defendant,  he  must  bring  a  cross  action  or  a  counter-     -^^^^  j 
claim. 

Interrogatories  as  to  documents  in  the  possession  of  a  party  interro- 
were  introduced   when  a  party  could  not  apply  for  discovery  gatories  as 
without  an  affidavit,  naming  some  one  document.     They  are  ^^j^^g"' 
improper    now,    and  will   be  struck  out.(0     If    discovery  is 
required  It  should  be  the  subject  of  an  appUcatlon  to  a  judge 
under  Rule  1 1 ,  infra. 

As  to  actions  In  nature  of  a  bill  of  discovery  In  aid  of  a  Hills  of 
controversy   before   another   tribunal,  ex.  gr.,  an  arbitrator,  discovery, 
where  the  arbitration  is  compulsorily  ordered  by  a  judge  in  an 
action,  (wj)  or  where  a  suit  Is  about  to  be  instituted  In  India,  but 
the  plaintiff  must  show  some  chance  of  success  in  the  suit  he 
proposes  to  aid  by  discovery,  (w) 

Although  it  is  competent  for  plaintiff  to  deliver  interroga-  Proper 
tories  with  his  statement  of  claim,  yet  this   course  has  been  time  for 
disapproved  of  in  England,  in  ordinary  cases,  as  an  attempt  ^^^j^'J,"^ 
to   reproduce   the   bad   practice  that   formerly   prevailed   in  i,efore 
Equity  of  filing  interrogatories  together  with  the  bill  without  defence. 
knowing  or  caring  what  the  answer  would  be.(?i«)     Whereas 
the  line  of  defence  or  demurrer  may  render  them  useless  and 
a  mere  wanton  abuse  of  the  Rules,  in  order  to  Increase  costs, 
and  they  have  been  struck  out  with  costs  when  found  unneces- 
sary on  the  defence  being  delivered,  ex.  gr.,  in  an  action  for 
damages  for  unskilful  management  of  a  horse  and  carriage 
by  defendant's  servant, (o)   or  in  an  action  on  a  bill  of  ex- 
change.(ju)     In  some  cases  the  judge  has  adjourned  the  appli- 
cation to  strike  out  Interrogatories  delivered  before  defence 
till  after  defence  was  seen.  (7)     In  one  case  in  an  action  of 
libel   the    judge    (Baron    Pollock)    directed    Interrogatories 
delivered  before  defence  to  be  struck  out,  without  looking  at 
them. — on  the  ground  that  the  defence  might  admit  the  fact 
of  publication  inquired  after — and  said  the  Rule  was  Intended 
not  for  every  simple  common  law  action  ;  but  to  meet  cases 

(F)  Ainsworth  v.  Starkie,  W.  X.,  1876,  8;  20  Sol.  Jour.,  162, 
Quaiu,  J. 

(/)  Pitten  i^.  Chattenburg,  W.  N.,  1875,  248 ;  20  Sol.  Jour.,  139, 
Quain,  J.  Bannicot  v.  Harris,  W.  N.,  1876,  0;  20  Sol.  Jour  ,  217, 
Lindley,  J. 

(m)  British  Empire  Shipping  Co.  v.  Somes,  3  K.  &  J.  433 ;  Orr  v. 
Draper,  L.  K.,  1  Clian.  D  92,  25  W.  R.  23,  V.  C.  H. ;  Ainsworth  v. 
Starkie,  W.  N.,  1876-8.     20  Sol.  Jour.  162,  Quain,  J. 

(n)  Reiner  v.  INIarquis  of  Salisbury,  24  W.  R.  843,  V.  C.  M. 

Inn)  See  Strong  v.  Tappiu,  W.  N.,  1876,  22,  20  Sol.  Jour.  240, 
Lindlev,  J. 

(0)  brake  v.  Whlteley,  ^Y.  N.,  1876,  55,  20  Sol.  Jour.  281, 
Archibald,  J. 

(/?)  Feuwck  V.  Johnson,  W.  N..  1876,  54,  20  Sol.  Jour.  286; 
Cotching  r.  Hancock,  W.  N.  1876,  55,  20  Sol.  Jour.  381  ;  see  also 
Anon.,  20  Sol.  Jour.  81,  Lush,  J. ;  Carter  v.  Lreds  Daily  News,  W.  N., 
1876,  12;  the  Biela  24,  W.  R.  524,  W.  N.  ,  1876,  63;  Prob.  &  Ad., 
Strong  V.  Tappin,  W.  N.  1876,  22.  20  Sol.  Jour.  240,  Lindley,  J. 

(g)  See  Anon  ,  20  SoL  Jour.  70,  Lush,  J. 


)96 


DISCOVERY   AND   INSPECTION. 


Before 
statement 
of  claim. 


Order  31.  very  rare,  except  in  chancery  actions,  where  phiintiff  from 
,.  J  the  fraud  of  the  defendant  did  not  know  his  own  case  except 
in  a  vague  general  way  and  had  to  find  it  out  from  the  answers 
of  the  defendant.  On  appeal  from  the  judge,  to  the  Q.  B. 
Division,  the  Divisional  Judges  were  equally  divided,  the 
L.  C.  Justice  deeming  the  decision  of  the  judge  at  variance 
with  the  Rule,  though  wishing  the  Rule  were  altered.(r)  The 
Court  of  AppeHl(5)  held  that  the  judge  should  not  without 
some  examination,  say  the  interrogatories  were  premature 
merely  because  delivered  before  defence,  but  might  on  inquiry 
strike  them  out,  unless  reasonable  cause  could  be  shown 
for  requiring  information  at  that  eai-ly  stage — in  fact  that 
Itule  1,  was  modified  by  Rule  5,  enabling  court  to  strike  out 
interrogatories  where  the  matter  inquired  after  is  not  sufficiently 
material  at  that  stage  of  the  action.  The  Rule  has  been 
snnilarly  explained  in  the  Chancery  Division. (f) 

The  old  Rule  of  equity,  th;it  a  plaintiff  is  not  entitled  to 
discovery  until  he  has  shown  that  his  claim  is  not  demurrable, 
still  prevails  both  as  to  discovery  of  facts  and  of  documents 
and  therefore  before  delivery  of  statement  of  claim  the  plain- 
tiff's right  is  not  absolute  and  can  only  be  acquired  by  a 
special  order(M),  which  will  not  be  granted  unless  imder 
special  circumstances,  as  it  might  be  used  for  oppressive  pur- 
poses to  fish  out  a  case  (») 

A  defendant's  time  for  delivery  of  interrogatories,  e.r  debito, 
is  at  tiie  time  of  delivering  his  defence,  or  before  the  close  of 
the  pleadings,  after  this  he  must  obtain  an  order. 

The  old  Equity  Rule  was  that  a  defendant  could  have  no 
discovery  by  cross  bill  from  the  plaintiff,  until  he  had  answered 
the  original  bill,  and  now  it  is  i)laln  that  before  defence 
delivered,  he  cannot  serve  interrogatories  without  special 
order,  and  for  this  purpose  leave  has  generally  been  refused, 
or  the  dpplicati(;n  adjourned  as  calculated  to  put  parties  to 
expense  unnecessarily, (?«)  and  such  applications  have  been 
strongly  discouraged. (a:)  A  defendant  seldom  can  lose  any 
advantage  by  first  putting  in  his  defence,  stating  he  is  Ignorant 
of  the  facts  charged  against  him,  and  then  serving  Interroga- 
tories, and  If  any  new  ground  of  defence  be  discovered,  he  will 
get  leave  to  amend. (y)  Occasionally  it  may  save  exjiense  to 
allow  interrogatories  to  be  deliverecl  before,  as  in  the  result 
they  may  determine  defendant  not  to  take  any  defence.  In 
one  case  a  defendant   Avas   allowed  after  appearance  to  an 


"When  by 

defendant. 


Before 
defence. 


(r)  Mercier  v.  Cotton,   W.  N.,  1876,  136,  Q.  B.  D. 

(s)  S.  C,  L.  R.,  1  Q.  B.  D.,  442,  24  W.  R.  or.6,  20  Sol.  .!;> 

(0  Disney  v.   Lony bourne,  L.  R.,  2  Chan.  D.  704,  24  A\'. 
20  Sol.  Jour.  542,  M.  R. 

(u)  See  Cashiu  v.  Craddock,  L.  R.  2  Chan.  D.  140,  V.  C.  B. 

i^v)  See  Anon.  W.  N.,  1876,  53,  Archibald,  J. 

(jf)  See   Mercantile   Mutual  Insurance  Co.   v.  Shoesmith. 
1876,  64  ;  20  Sol.  Jour.  208. 

(x)  I'lum  V.  Normant'in  Iron  and  Slate  Works,  W.  N.,  18 
see  20  Sol.  Jour.  298. 

(^)  See  Disney  v.  Loiigbounie,  ubi  supra. 


R. 

46'.t. 
663. 

W. 

N., 

70, 

73; 

DISCOVERY  AND   INSPECTION.  597 

action  on  a  bill  of  exchange,  to  deliver  Interrogatories  to  establish  Order  31. 
that  plaintiff  was  suing,  as  the  nominee  and  for  the  benefit  of  a 
third  person,  and  that  there  had  been  a  total  failure  of  con- 
sideration. If  it  turned  out  that  plaintiff  was  a  holder  for 
value  without  notice,  there  could  be  no  defence,  and  accord- 
ingly the  Court  extended  time  to  defend  till  interrogatories 
were  answered.(z)  In  another  case,  to  save  costs  of  an  im- 
necessary  appearance  and  defence,  a  defendant  was  allowed  to 
have  Inspection  of  documents  in  the  custody  of  plaintiff  before 
he  even  had  appeared.  («) 

The  wide  words  of  Rule   1   are  supposed  to  refer  to  the  After 
occasion  which    frequently  aris^es  for  serving    Interrogatories  dose  oftlie 
after  the  pleadings  are  closed,  e.g.,  where  Interrogatories  have  Pls'i'li"S=*- 
been  delivered  to  one  defendant  and  elicited  no  information, 
and  It  may  be   desired  to  serve  the  same  interrogatories  on 
another  defendant  ;(Z*)  leave  has  been  refused  where  delay  was 
not  explained,  (c) 

No  party  can  deliver  more  than  one  set  of  interrogatories  Only  one 
without  special  leave. (c/)  set." 

2.  The  Court  in  adjusting  tlie  costs  of  the  action  shall    Kule  2. 
at  the  instance  of  any  party  inquire  or  cause  inquiry  to  Inquiry  as 
be  made  into  the  propriety  of  exliibiting  such  interi'oga-  prie[°of  j^ 
tories,  and  if  it  is  the  opinion  of  the  taxing  master  or  of  adjusting 
the  Court  or  Judge  that  such  interrogatories  have  been  '^°^^^- 
exhibited    unreasonably,     vexatiously,     or    at    improper  ^"^^^  ^' 
length,  the  costs  occasioned  by  the  said  interrogatories 

and  the  answers  thereto  shall  be  borne  by  the  party  in 
fault. 

3.  Interrogatories  may  be  in  the  Form  No.  7  in  Ap-    Edle  3. 
pendix  (B.)  hereto,  with  such  variations  as  circumstances  Form  of. 
may  rec|uire.  Orel,  si, 

.  E.  3. 

They  should  be  m  such  a  form  that  the  answerlnof  party  can 
say  '"Yes"  or  "]Sro,"(e)  and  should  not  be  Intermixed  with 
matter  to  embarrass  the  party  in  giving  a  simple  answer. (/) 

The  70th  G.  O.,  1854,  Common  Law,  required  interroga- 
tories to  be  signed  by  counsel.  (^) 

4.  If  any  party  to  an  action  be  a  body  corporate  or  a     Kule  4. 
joint  stock  company,  whether  incorporated  or  not,  or  any  Appiica- 


(3^  Hawley  v.  Keade,  W.  N.,  1876,  64,  20  Sol.  Jour.  298  ;  Archi- 
bald J. 

(a)  Anon.  W.  N.,  1875,  220,  20  Sol.  Jour.  81,  Lush,  J. 

(6)  See  Swire  v.  Redman,  20  Sol.  Jour.  584,  A.  C. 

(c)  Ellis  w.  Ambler,  25  W.  R  ,  557,  C.  P.,  scd  vide  London  and  Pro- 
vincial Insurance  Co.,  L.  R.,  5  Chan,  D.  775;  25  W.  R.  87*!,  Fry,  J. 

(f/)  See  Thompson  v.  Wynne,  Ir.  Rep.,  1  Com.  Law  600,  Keogh,  J. 

(e)  Armitage  V.  Fitzwilliam,  W.  N.,  1876,  56;  20  Sol.  Jour.  281, 
Archiliahl,  J. 

(/)  Anon.  W.  N.,  1876,  39  ;  20  Sol.  Jour.  261,  Lindley,  J. 

(9)  But  see  Sinnott  1:  The  People's  Provident  Insurance  Co.,  9  Ir. 
Com.  Law  Rep.  180,  Ex. 


tion  in 
case  of 


598 


DISCOVERY   AND   INSPECTION. 


Order  31. 

corpora- 
tion. 
Ord.  31, 
R.  4,  E. 


Rule  5. 
Applica- 
tion to 
strike  out 
interro- 
gatories 
objection- 
able. 
Ord.  31, 
R.  5,  E. 


Objections 
to  interro- 
gatories. 


Time  for 
malcing. 
When  by 
objection. 


other  body  of  persons^  empowered  by  law  to  sue  or  be 
sued,  whether  in  its  own  name  or  in  the  name  of  any 
officer  or  other  person,  any  opposite  party  may  apply  to 
a  Judge  at  chambers  for  an  order  allowing  him  to  deliver 
interrogatories  to  any  member  or  officer  of  such  corpora- 
tion, company,  or  body,  and  an  order  may  be  made 
accordingly. 

In  Chancery  practice  it  was  usual  to  make  some  one  of 
the  (lu'ectors  or  officers  of  the  defendant  company  a  party  de- 
fendant for  this  purpose  Under  the  Com  Law  Pro.  Act, 
1856,  s.  56,  the  order  allowing  interrogatories  to  be  delivered 
to  a  body  corporate  provided  for  the  delivery  to  some  one  of 
the  officers. 

Interrogatories  delivered  to  a  defendant  company  without 
an  order  are  irregular  and  may  be  struck  out.{h) 

The  order  may  direct  that  some  particular  officer  be  ap- 
pointed to  receive  and  answer  the  interrogatories,  and  a  proper 
discretion  should  be  exercised  to  select  a  person  likelv  to  know 
about  the  matter,  and  able  to  answer  accordingly. (z)  The  defen- 
dant may  still  name  the  officer  as  a  defendant  for  discovery, 
and  enforce  it  against  him  bv  the  ordinary  process  of  the 
Court.  (^) 

A  defendant  by  means  of  a  counterclaim  may  effect  the  same 
object. 

6.  Any  party  called  upon  to  answer  interrogatories, 
whether  by  himself  or  by  any  member  or  officer,  may, 
within  four  days  after  service  of  the  interrogatories,  apply 
at  chambers  to  sti-ike  out  any  interrogatory,  on  the  ground 
that  it  is  scandalou-S  or  irrelevant,  or  is  not  put  bona  fide 
for  the  purposes  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. 

A  party  interrogated  and  objecting  to  answer  may  resort  to 
two  modes  of  resistance^^Vsf,  under  this  rule,  by  applying  to 
strike  out  the  interrogatory  ;  secondly,  by  stating  his  objec- 
tion specifically  to  one  or  more  interrogatories  in  the  affidavit 
he  files  under  Rule  7  hifra. 

Objections  under  this  rule  must  be  made  within  four  days 
after  service  of  interrogatories  by  application  to  strike  them 
out,  and  generally  speaking  where  they  are  bad  in  substance, 

(h)  Carter  v.  Leeds  Daily  Mws  Co.,  W.  N.,  1876,  11 ;  20  Sol. 
Jour.,  2 IS,  Archibald,  J. 

(0  See  Republic  of  Costa  Rica  v.  Erlanger,  24  W.  R.  100,  W.  N., 
187.5,  225,  V.  C.  M.  S.  C,  on  appeal,  L.  K.,  1  Chan.  D.  171,  24 
AV.  R.,  151  ;  20  Sol.  Jour.  118,  A.C. 

(k)  S.  C.  and  Republic  of  Peru  v.  Wegueliu,  L,  R ,  20  Eq,  Ul, 
V.  C.  H. 


DISCOVERY  AXD   IXSPECTIOX.  599 

as  being  scandalous,  irrelevant,  not  bona  fide  or  premature,  the    Order  31. 
])roper  method  of  taking  the  objection  will  be  under  this  rule.(/)     j^^gLj.  5, 
But  if  jrood  enough,  per  se,  but  the  party  can  resist  answering 
them  on  other  grounds,  ex.  gr.,  privilege,  then,  the  objection 
should  be  taken  by  affidavit  under  Rule  7.(/«) 

For  this  purpose  the  old  rule  in  equity  is  superseded — viz., 
that  if  a  party  answered  at  all,  he  should  answer  fully. (/O 

Generally  speaking,  interrogatories  will  not  be  struck  out 
merely  because  they  are  open  to  criticism,  and  it  is  not  the 
business  of  the  judge  to  settle  interrogatories ;  they  must  be 
plainly  objectionable  or  oppressive(o) 

Interrogatories  as  to  documents  in  possession  of  the  party  As  to 
are  plainly  objectionable.(/')  documents. 

As  to  being  scandalous,  one  for  the  mere  purpose  of  shaking  Scandalous. 
the  character  of  the  opposite  party  comes  within  this  rule.(y) 

As  to  irrelevancy,  they  must  have  some  connexion  with  the  Irrelevant, 
pleading  and  issues  raised,  and  tend  to  support  the  case  of  the 
party  administering  them.(r) 

The  Court  is  not  disposed  to  weigh  with  great  accuracy  the 
immateriality  or  irrelevance  of  an  interrogatory  if  it  bear  upon 
the  case  or  the  issues  joined, (s)  but  if  intended  for  delay  and 
to  convict  plaintiffs  as  trustees  of  a  breach  of  trust  uncon- 
nected with  the  suit  they  have  been  struck  out.(0 

In  an  action  for  negligence  against  a  railway  company  a  dis- 
covery of  reports  of  other  accidents  at  other  stations  was 
deemed  iiTclevant,  but  those  as  to  reports  as  to  the  lighting  of  the 
particular  station  where  the  accident  occuiTed,  and  alleged  to 
be  accessory  to  the  accident,  were  allowed. (?<) 

Interrogatories  must  be  put  bona  fide  for  the  purpose  of  the  Not  lond 
action  and  in  support  of  the  case,  and  not  to  test  the  veracity  of  >'e. 
the  party  mterrogated,  or  his  credit  or  character,  ex.  gr..  whether 
the  alleged  libel  was  not  intended  to  apply  to  the  plaintiff,  and 
if  not  to  whom^  and  whether  written  by  defendant,  and  if  not 
by  whom.(r) 

InteiTOgatories  not  in  support  of  a  case  stated,  but  fishing  Fishing, 
for  materials  to  make  up  a  case  are  objectionable. (w;) 

f/)  Vovsey  r.  Cox,  W.  X.,  1876,  12,  20  Sol.  Jour.  219,  Lindley,  J. 
Anon.  W.  X.,  1875,  229,  2U  Sol.  Jour.  100,  Quain,  J. 

(m)  Ibid. 

(w)  lUd. 

Ip)  Winters  v.  Dabbs,  W.  X.,  1876,  21 ;  20  Sol.  Jour.  2-1:0,  Lind- 
lev,  J. 
'  p)  Bannicot  v  Harris,  W.  X.,  1876-9,  Quain,  J. 

(g)  Baker  v.  Xewton,  W.  X.,  1876-8,  20  Sol.  Jour.  177,  Quain,  J. 

(r)  Gourlev  v.  Plimsoll,  L.  E.  8  C.  P.  362.  Anon.  W.  X.,  1876, 
29  ;   20  Sol.  jour.  261,  Lindley  J.     Swire  v.  Harris,  W.  X.,  1876,  22. 

(s)  See  Chesterfield  Colliery  Co.  v.  Black,  W.  X.,  1876,  20-i, 
V.  C.  H. 

(0  Mansfield  v.  Childerhouse,  L.  R..  4  Chan.  D.  82. 

Ill)  Anon.  W.  X.,  1876,  5.S,  Archibald,  J 

(f.)  Wilton  V.  Brignell,  W.  X.,  1875,  239 ;  20  Sol.  Jour.  121, 
Quain,  J. 

{xo)  Morris  v.  Parr,  6  B.  &  S.  203.  Gourley  v.  Plimsoll,  L.  R.,  8 
C.  P.  362. 


{'){){)  DISCOVERY  AND   INSPECTION. 

Order  31.        Thus  to  make  out  a  defence  of  justification  for  libel  cliarg- 
^      mo;  plaintiff    with   being   the  -writer    of    certain   anonymous 
^^^  '^'     articles  defendant  may  ask  plaintiff  did  he  write  the  articles  in 
(question,  but  not  what  articles  in  general  he  did  write.(?/) 

In  an  action  for  refusing  to  accept  goods,  being  ]>atent 
button-fastening  machines,  defendant's  interrogatory  to  plain- 
tiff, as  to  the  French  law  on  the  subject,  and  as  to  whether 
plaintiff  had  not  himself  bought  the  goods  at  a  cheap  price, 
were  struck  out.(z) 
Facts  Ii^   equity    a    defendant  should   discover   every   fact    and 

material  to  circumstance  within  his  knowledge,  information  or  belief, 
party's  material  to  the  plaintiff  's  case.  It  is  presumed  the  same  rule 
own  case.  ^^,j^  prevail  now  in  the  High  Court.  («)  So  interrogatories 
may  be  used  to  supply  evidence  of  uncontroverted  facts,  and 
dispense  with  calling  witnesses  unnecessarily, (6)  as  in  trespass 
to  a  several  fishery,  whether  defendant  or  any  other  person 
authorized  by  him  had  fished  in  the  waters,  (c)  So  to  guide  a 
plaintiff  whether  he  should  discontinue  the  action  against  some 
of  the  defendants  as  in  assault  and  battery  against  two 
constables  and  an  inspector  of  constabulary,  to  ascertain 
whether  they  acted  under  the  command  of  the  Inspector,  (<-/) 
to  guide  a  defendant  how  much  money  he  should  lodge  in 
satisfaction  of  the  action,  he  may  ask  what  damages  the  plain- 
tiff' suffered,  (e) 

Interrogatories  may  go  to  prove  the  whole  cause  of  action 
out  of  defendant's  mouth  after  his  denial  of  it  In  the  defence. 
(  /;  Thus  In  ejectment  for  overholding  after  expiration  of  a 
lease  by  death  of  cestui  que  vies,  defendant  may  be  asked,  as 
to  date  of  their  death,  and  as  to  the  reputation  of  the  familv 
about  It.(g-)  In  an  action  for  seduction  of  defendant's 
daughter,  it  may  be  asked  the  defendant  as  to  his  knowledge 
of  her  and  committal  of  the  offence.  (A) 

But  these  instances  are  subject  to  this  qualification,  that  If 
the  plaintiff 's  object  be  to  obtain,  or  the  probable  residt  would 
be.  to  give  him,  the  unfair  advantage  of  withholding  his  princi- 
pal witnesses  from  cross-examination,  it  will  be  refused  iinless 
possibly,  on  condition  of  producing  the  witnesses  at  the  trial. 
Pertinent.         Interrogatories  as    to    amount  of   defendant's  property  or 

0/)  Buchanan  v,  Taylor,  W.  N.,  1876,  73;  20  Sol.  Jour.  298, 
Archibald,  .J. 

(2)  Phillips  V.  Barron,  W.  N.,  1876,  54,  20  Sol.  Jour.  280,  Archi- 

(«)  See  English  v.  Tottie,  L.  R.,  1  Q.  B.  D.  141,  Blackburn,  J. 
Edie  V.  Jacobs,  20  W.  R.,  15'J,  Ex.  D. 

(b)  Hodsoll  V.  Taylor,  L.  R.,  9  Q.  B.  79,  Blackburn,  J. 

(c)  Acbeson  v.  Ilenrv,  Ir.  Rep.  5  Com.  Law,  496,  Ex. 

(d)  O'Connell  v.  Barrv,  Ir.  Rep.  2  Com.  Law,  648,  Ex. 

(,-)  Home  V.  Hough,  L.  R.  9  C.  P.  135;  Wright  v.  Goodlake,  3  H. 
&  C  540 

(  V)  M'Corquodale  v.  Bell,  24  W.  N.,  1876,  39  ;  20  Sol.  Jour.,  260, 
Lindlev  J.  Bartholomew  v.  Rawlings,  W.  N.,  1876,  56,  20  Sol. 
Jour.,  283,  Archibald,  J.     Anon.  20  Sol.  Jour.,  341,  Denman,  J. 

(fj)  Head  v.  M'Gennett,  Ir.  Rep.  6  Com.  Law,  267,  Q.  B. 

{/,)  Hodsoll  V.  Taylor,  L.  R.  9  Q.  B.,  79. 


DISCOVERY  AND   INSPECTION.  601 

income  in  an  action  for  breach  of  promise  of  marriage  have  Order  31. 
not  been  disallowed,  inasmuch  as  they  are  pertinent  to  the  ^^^.e  5. 
measure  of  damages,  so  also  as  to  what  settlement  defendant 
made  on  his  present  wife,(i)  and  e  cornier  so,  plaintiff  may  be 
asked  for  discovery  of  his  business  accounts  for  preceding 
years,  to  estimate  the  loss  he  has  sustained  by  an  accident  for 
which  he  sues  a  railway  company.(A)  But  questions  as  to 
expectancies  of  means,  or  means  of  relatives  are  not  per- 
tinent. (Z) 

Interrogatories  have  been  allowed  to  test  or  disprove  the  To  dis- 
ease made  by  the  opposite  party,  ex.  gr.,  on  a  plea  of   plejie  prove 
admimstravit,{rn)  although  they  may  strike  at  the  root  of  the    '  pQ^g^^.^ 
defence,  (n)     In  fact  each  party  is  entitled  to  discovery  of  the 
facts  necessary  to  support  his  opponent's  case,  but  not  of  the 
evidence  by  which  it  is  to  be  proved. (o) 

Any  matter  which  is  only  part  of  the  defence,  need  not  be 
disclosed  by  defendant  till  the  hearing,  if  it  forms  a  link  in 
the  chain  of  title,  and  so  as  to  inspection  of  documents, (j?) 
but  aliter  if  they  relate  to  both  parties'  title. (p) 

Interrogatories,  the  answers  to  which  might  tend  to  crimi-  Tending  t« 
nate  the  answerer  or  expose  him  to  some  penalty  or  forfeiture  criminate, 
were  open  to  demurrer  in  Equity,  but  the  provisions  of 
Com.  Law  Pro.  Act,  1856,  s.  56,  had  no  such  limitation, (</) 
and  the  system  introduced  by  it  was  analogous  to  the  manner 
of  examining  a  witness  at  a  trial,  (r)  So  that  the  interrogatory 
might  be  delivered,  leaving  to  the  witness  the  onus  of  raising 
the  objection  in  his  answer  upon  oath,  and  swearing  that  in  his 
opinion,  it  would  have  that  tendency.(5) 

It  might  have  been  expected  that  under  the  Judicature  Act, 
the  rule  in  Equity  should  prevail,  but  although  in  th  e  first  reported 
case  under  It,  an  action  for  a  penalty  under  the  Larceny  Act,  a 
question,  whether  defendant  had  inserted  a  certain  advertise- 


(0  Anon.  20 Sol.  Jour.,  122,  Quain,  J.;  see  HodsoU  v.  Taylor,  L.  R. 
9,  Q.  B.,  79. 

(Ji)  Anon.  W.  N.,  1876,  53,  Archibald,  J. 

(/)  Anon.  W.  N.,  1876,  22  ;  20  Sol.  Jour.,  243,  Lindley,  J. 

(ot)  See  Peck  v.  Nolan,  14  Ir.  Com.  Law  Rep.,  App.  32,  Ex.;  and 
see  Stewart  v.  Smith,  L.  R.  2,  C.  P.  293 ;  see  Zychlenski  v.  Maltby, 
10  C.  B.,  K  S.  838. 

(«)  Rowcliffe  V.  Leigh,  W.  N.,  1877,  24 ;  21  Sol.  Jour.,  238, 
V.  C.  H. 

(o)  Bade  v.  Jacobs,  26  W.  R.  159,  Ex.  D. 

(J)  M'Mahon  v.  Leonard,  10  Ir.  Com.  Law  Rep.  120,  C.  P. ; 
Lake  v.  Parley,  W.  N.,  1876,  54,  20  Sol.  Jour.  280  ;  see  Fenney  v. 
Forward,  4  H"  &  C.  33. 

(5)  Osborn  v.  London  Dock  Co.,  10  Ex.  698. 

(r)  S.  C.  per  B.  Alderson,  at  p.  702,  and  Bartlett  v.  Lewis,  12  C. 
B.,  N.  S.  249. 

(s)  lb.  per  Willes,  J.  at  p.  262 ;  and  see  Hill  v.  Campbell,  L.  R.  10, 
C.  P.  235 ;  Fitzgibbon  v.  Greer,  Ir.  Rep.  9  Com.  Law,  294,  Q.  B., 
and  contra  Whateley  v.  Crowter,  5  El.  &  Bl.  709.  Stern  v.  Sevasto- 
puld,  14  C.  B.  N.  S".  737,  and  Edmunds  v.  Greenwood,  L.  R.,  4  C.  P. 
70. 

2d 


602 


DISCOVERY  AND  INSPECTION. 


Order  31. 
Rule  5. 


Confi- 
dential 
commuui- 
cations 
between 
solicitor 
aud  client. 


Other  con- 
fidential 
communi- 
cation!;. 


ment  in  a  newspaper  was  disallowed,  (f)  yet  in  a  later  case  it  was 
treated  as  a  matter  of  discretion,  and  that  while  it  might  be  dis- 
allowed in  the  case  of  a  common  informer,  where  a  public 
body  intrusted  with  a  public  duty  sought  it,  it  was  allowed.(H) 

In  an  action  for  libel,  it  was  allowed  to  ask  defendant  was 
he  the  publisher,  not  was  he  the  editor,  or  the  writer,  nor 
whether  he  had  the  original  manuscript  of  it.  (v) 

In  an  action  for  slander,  defendant  who  has  denied  it,  may  be 
nsked  whether  he  had  not  made  the  alleged  statement  in  a 
certain  place.  (;«) 

Where  a  statute  provides  protection  to  a  party  compelled  to 
make  discovery  under  its  provisions,  the  like  protection  attaches 
on  his  answer  under  the  J.  Act.(2') 

An  interrogatory  to  show  that  defendant  alleged  to  l^e  the 
assignee  or  lessee  in  an  action  of  ejectment  on  the  title  by  the 
lessor,  had  taken  an  assignment  or  sub-lease,  which  would 
amount  to  a  forfeiture  of  the  lease  was  held  improper.  (?/) 

Confidential  communications  between  suitors  and  their  counsel 
and  solicitors,  in  reference  to  the  matter  in  litigation  are  privi- 
leged, although  neither  made  nor  written  in  anticipation  of  the 
particular  action  or  suit,  provided  they  pass  as  professional 
communications  and  in  a  professional  capacity  ;(z)  so  commu- 
nications made  to  the  solicitor,(a)  by  or  to  or  through  an  inter- 
mediate agent  for  the  solicitor,  (6)  but  mere  friendly  advice 
given  by  an  eminent  lawyer  and  ex-judge  (Lord  Westbury), 
to  a  friend,  was  not  considered  ])rofessional  or  privileged. (c) 

Private  or  confidential  communications  made  by  or  for,  or 
through  an  ordinary  lay  agent,  possess  no  such  pri\'ilege.(f/)  A 
different  rule  prevailed  at  law  until  lately,  but  since  the  J.  Act 
the  rule  of  equity  must  prevail,  and  the  clauses  of  the  Com. 
Law  Pro.  Act  are  no  longer  to  govern,  if  they  conflict  with  the 
rules  of  equity.(e)     Now,  in  all  divisions  of  the  High  Court, 


(0  Anon.  W.  N.,  1875,  219;  20  Sol.  Jour.,  81,  Lush,  J. 

(m)  Society  of  Apothecaries  v.  Nottingham,  W.  N.,  1875,  259; 
20  Sol.  Jour.,  ICl,  Iluddlestone,  B.,  and  see  Biekford  v.  Davey,  L. 
R.  1   Ex.  354. 

(y)  Carter  v.  Leeds  "Daily  News"  Co.,  W.  N.,  187G,  12  ;  20  Sol. 
Jour.  218,  Archibald,  J.,  see  also  Finlay  v.  Lind.sey,  7  Ir.  Com.  Law  Rep. 
1,  Q.  B. 

(w)  Anon.  W.  N.,  1875,  229  ;  20  Sol.  Jour.,  100,  Quain,  J. 

(.r)  See  Ramsden  v.  Breasly,  W.  N.,  187.5,  199;  20  Sol.  Jour.,  30, 
Lush,  J. 

Q/)  Bi.shop  of  Cork  v.  Porter,  Ir.  Rep.  11,  Com.  Law,  91,  Ex. 

(a)  Minet  v.  Morgan,  L.  R.,  8  Chan.  3(J7 ;  Bolton  v.  Corporation  of 
Liverpool,  1  Myl.  &  K.  88 ;  see  Bacon  v.  Bacon,  W.  N.  187G,  9G. 

(«)  Greenough  v.  Gaslvcll,  1  Mvl.  &  K.  98. 

(b)  M'Corquodale  v.  Bell,  L.  R.  1  C.  P.  D.  471;  24  W.  R.  399; 
Ross  V.  Gibbs,  L.  R.  8  Eq.  522. 

(c)  Smith  V.  Daniel,  L.  R.  18  Eq.  049. 

((I)  Anderson  v.  Bank  of  British  Columbia,  L.  R.,  2  Chan.  D.  044; 
24  W.  R.  G24,  vid.  A..  C,  20  Sol.  Jour.  132.  M.  R. 

(e)  S.  C.  Jame.s  L.  J.,  at  p.  6.54,  Melli-h,  L  J.,  at  p.  058;  see 
BuKtros  V.  White,  L.  R.  1  Q.  B.  D.,  423  ;  Sir  Geo.  Jessel,  at  p.  425  ; 
24  W.  R.  722,  20  Sol.  Jour.  585,  A.  C. 


DISCOVERY   AND   INSPECTION.  603 

correspondence  or  oral  communications  with  ordinary  agents    Order  31. 
before  or  after  the  dispute  has  arisen,  however  confidential  they 
may  be,   have  no  privilege,  and  this  includes  everything  that 
can  throw  light  on  the  case. (/) 

In  a  recent  case  the  report  of  the  examination  of  plaintifT  by 
a  medical  man  was  privileged  on  the  ground  that  it  was  made 
for  the  use  of  the  sohcitor  advising  in  the  ca,se.(g) 

6.  Interrogatories  shall  be  answered  by  affidavit  to  be     Rule  6. 
filed  within  ten  days,   or  within  such  other  time  as  a  Time  to 

,,  "^    '  answer  by 

Judge  may  allow.  affidavit. 

There  is  no  direction  given  as  to  printing  affidavits  in  answer  OM.  31, 
exceeding  three  folios,  as  given  by  Ord.  31,  R.  7.  ■    .    • 

7.  Any  objection  to  answering  any  interrogatory  may    Kole  i. 

be  taken,  and  the  ground  thereof  stated  in  the  affidavit.     Objections 
'  °  _  _      maybe 

The  principal  grounds  of  objection  to  answer  interrogatories  taken  by 
have  been  shortly  noted  under  Rule  5,  ante.  _  _    affidavit. 

It  has  been  held  in  one  case  that  where  interrogatories,  mani-  Ord  31, 
festly  improper,  have  been  put,  they  may  be  left  unanswered    '■  ' ' 
without  alleging  any  reason  for  so  doing,  or  applying  to  have 
them  disallowed,  ex'.gr.,  as  to  whether  defendants  were  married 
to  each  other.  (A) 

8.  No   exceptions  shall   be  taken  to  any  affidavit  in    k^-le  8. 
answer,  but   the   sufficiency  or  otherwise    of  any  such  ^^''^^j^j'^g 
affidavit  objected  to  as  insufficient  shall  be  determined  allowed  but 
bv  the  Court  or  a  Judge  on  motion  or  summons.  sufficiency 

•'  "  deter- 

In  deciding  on  the  sufficiency  or  insufficienc^y  of  an  affidavit  mined  on 
by  way  of  answer,  the  relevancy  and  materiality  of  the  state-  motion, 
nient  in  question  will  doubtless  be  taken  in  consideration,  as  it  ^rd-  •^, 
was  formerly  in    Chancery   practice   (see   70   G.  O.   31   Oct. 
1867.(0     Objection  may  be  taken  not  merely  for  insufficiency, 
but  on  other  grounds  also,  ex  gr.,  where  answer  is  framed  so  as 
to  prevent  the  opposite  party  making  any  use  of  it, (A)  or  is 
irrelevant,  mixing  up  statentents  of  the  answerer's  own  case  and 
defence,  and  explanations  of  it,  with  his  answer  to  the  questions 
put.(Z)     However,  it  is   probable  that  the   Court  in   dealing 
with  objections  to  answers,  will  not  consider  itself  bound  to 

(/)  Bustros  V.  White,  uU  stipra.  English  v.  Tothe,  L.  R.,  1  Q.  B.  D. 
141;  24  W.  R.  393;  Hutchinson  v.  Glover,  L.  R.  1  Q.  B.  D.  13'.l ; 
24  W.  R.  185;  M'Corquodale  v.  BeU,  L.  K.  1  C.  P.  D.  471;  24 
W.  R.  31)9. 

(ff)  Friend  v.  London  and  Chatham  Railway  Company,  L.  R.  2 
Ex.  D.  437. 

(h)  Smith  V.  Berry,  25  W.  R.  606,  V.  C.  B.,  per  Lord  Coleridge, 
C.  J.,  and  Lindley,  J.,  Grove,  J.  dissenting. 

(i)  But  see  Reynold  r.  Bloomfield,  8  Ir.  Com.  Law  Rep.,  App.  14, 
•  Q.  B.,  and  Chesterfield  Colliery  Company  v.  Blacli,  W.  N.  1876,  204, 
V.  C.  H. 

(1-)  See  Pevton  v.  Harting,  L.  R.  9  C.  P.  9. 

(0  Anon.  W.  N.  1876,  39 ;  20  Sol.  Jour.  261,  Lindley,  J. 

2  D  2 


604 


DISCOVERY   AND    INSPECTION. 


Order  31. 


EULE  9. 

Order  to 
answer, 
or  answer 
further. 
Orel.  31, 
It.  9,  E. 


KULE  10. 

Order  for 
production 
of  doc  a- 
ments. 
Ord.  31, 
11.  10,  E. 


KULE  11. 

Order  for 
di.«covery 
of  docu- 
ments. 
Ord.  31, 
I{.  11,  E. 


(leal  with  them  in  the  critical  manner  formerly  used  on  excep- 
tions according  to  it,«  discretion  in  each  particular  case,  ex-  gr., 
but  an  answer  as  to  knowledge,  omitting  information  and 
belief,  (m) 

No  time  is  limited  for  objections  to  an  answer  to  interroga- 
tories. In  Chancery  practice  six  weeks  were  allowed  for  the 
purpose,  a  period  which  would  probably  be  deemed  altogether 
too  long  under  the  new  system. 

Application  to  determine  the  sufficiency  of  an  affidavit  made 
under  this  rule  is  to  be  made  by  Summons  at  Chambers,  Ord. 
liii  ,  R.  2  (4). 

9.  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 
liim  to  answer,  or  to  answer  further,  as  the  case  may  be. 
And  an  order  may  be  made  requiring  him  to  answer  or 
answer  further  either  by  affidavit  or  l)y  vivd  voce  ex- 
amination, as  the  Court  or  a  Judge  may  direct. 

The  application  for  an  order  to  answer  (or  for  a  further 
answer  in  England),  is  by  Summons  at  Chambers,  Ord.  liii., 
R  2  (5)  and  (6)  infra,  and  not  by  motion.  The  particular 
answers  objected  to  as  insufficient  should  be  specified. (?«) 

If  a  viva  voce  examination  be  directed  it  will  probably  be 
before  the  Court  or  a  Judge  ;  see  Com.  Law  Pro.  Act,  1856, 
s  60. 

As  to  using  ansAvers  to  interrogatories  in  evidence,  see  Rule 
22,  infra. 

2.  Production  of  Documents. 

10.  It  shall  be  lawful  for  the  Court  or  a  Judge  at  any 
time  during  the  pendency  of  any  action  or  proceeding,  to 
order  the  production  by  any  party  thereto,  upon  oath,  of 
such  of  the  documents  in  his  possession  or  power  relating 
to  any  matter  in  question  in  such  action  or  proceeding,  as 
the  Court  or  Judge  shall  think  right ;  and  the  Court  or 
a  Judge  may  deal  with  such  documents,  when  produced, 
in  such  manner  as  shall  appear  just. 

Quere  are  applications  for  production  of  documents  under  this 
rule  to  be  made  bv  Summons  at  Chambers ;  see  Ord.  hii.,  R. 
2  (8). 

11.  Any  pai-ty  may,  without  filing  any  affidavit,  apply 
to  the  Court  or  a  Judge  for  an  order  directing  any  other 
party  to  the  action  to  make  discovery  on  oath  of  the 
documents  which  are  or  have  been  in  his  possession  or 
])ower,  relating  to  any  matter  in  question  in  the  action. 

()«■)  See  Imperial  Mercantile  Credit  Association  v.  Huntingdon,  Ir. 
li'ep.  6  Com.  Law,  51.5  C.  P. 

((/)  CheMerficlil  ?•.  liovtliorpe  Colliery  Cv.  v.  Black,  24  W.  R.  783; 
20  Sol.  Jour.  C42,  V.  C."  H. 


DISCOVERY   AND   IXSPECTION.  605 

This  rule  is  borrowed  from  Chancery  procedure.  Order  31. 

See    Chan.    Act,    1867,    s.    71,    as  "regards   a   plaintiff.     A    p^^.^^,  jj_ 
defendant  was  likewise  permitted  without  filiuga  cross  bdl  to 
inten-ogate  the  plaintiif  in  order  to  enable  him,  /.<?.,  the  defen- 
dant, to  put  in  a  full  and  sufficient  answer.(<y) 

The  Common  Law  practice  obliged  the  applicant  to  satisfy 
the  Court  by  affidavit  of  the  party  himself,  that  his  adversary 
had  at  least"  one  document  in  his  possession,  to  the  production 
of  which  he  was  entitled,  although  in  Ireland  it  was  sulficient  to 
swear  to  belief  and  not  absolutely  as  to  the  fact.(;^)  The  Courts 
of  Law  were  not  tied  down  to  the  consideration  whether  pro- 
duction would  be  ordered  on  a  bill  of  discovery  in  equity.(7) 

A  party  is  entitled  to  discovery  of  documents  which  formerly 
could  not  be  reached  in  England  by  a  landlord,  ex.  gr.,  to  see 
his  tenant's  lease  in  an  action  between  them,(r)  though  perhaps 
in  Ireland  a  less  narrow  rule  prevailed,  (s)  It  can  scarcely  be 
doubted  that  discovery  of  documents  may  be  had  from  a 
Corporation  aggregate,  or  a  public  company  by  means  of  then- 
officer  through  the  combined  effect  of  Kules  4  and  1 1 ,  or  at 
least  the  Court  may  name  an  officer  to  make  the  affidavit(0  so 
on  the  owner  of  "a  foreign  ship  who  appears  to  defend  an 
action(M) 

A  party  has  no  right  to  demand  his  opponent  to  procure  an 
affidavit  as  to  documents  from  a  third  person  not  a  party  to  the 
action,  and  not  within  the  jurisdiction,  and  not_  under  his 
control,  or  to  stay  procceilings  until  he  procures  it,  and  this 
although  he  may  derive  title  under  liim.(y)  butthe  niortgagees 
of  a  ship  are  bound  to  procui-e  the  production  of  the  ship's 
papers  from  the  mortgagors  in  an  insurance  action  until  they 
satisfy  the  Court  they  have  done  all  in  their  power  to  procrae 
them.(i'u) 

A  party  is  not  entitled  to  discovery  of  documents,  except 
such  as  he  would  have  a  prima  facie  right  to  inspect,  such  as 
private  memoranda  made  by  his  opponent  for  his  own  pleasure 
or  convenience. (w) 

The  proper  time  for  a  plaintiff  to  apply  for  an  affidavit  as  to  Time  to 
documents  (in  ordinary  cases)  is  after  delivery  of  his  statement  apply  by 
of  claim  ;(A-)  before  "this,    special    circumstances    should   be  P '"*""'  • 
shown.  Q/)     So  also  as  regards  a  defendant   applying   before 

(o)  See  Philips  v.  Pennefather,  Ir.  Rep.,  3  Eq.  12  V.  C.  on  the  coa- 
struction  of  this  section. 

(/;)  Irish  Society  v.  Crommelin,  Ir.  Rep.,  2  Com.  Law,  501  C.  P. 

(q)  See  Barry  v.  Scully,  Ir.  Rep.  6  Com.  Law,  449  Q.  B. 

(r)  Anon.  W.  N.  1875,  249  ;  20  Sol.  Jour.  141. 

(s)  See  Barry  v.  ScuUy,  Ir.  Rep.  6  Com.  Law,  449  Q.  B. 

It)  See  Cooke  v.  Oceanic  Steam  C^.,  W.  N.  1875,  220,  Lush,  J. 

(m)  The  "  Emma,''  24  W.  R.  587  Pro. ;  the  action  was  in  rem. 

Iv)  Frazer  v.  Burrows,  L.  R.  2  Q.  B.  D.  624. 

lev)  West  of  England  Bank  v.  Canton  Insurance  C-^,  L.  R.,  2  Ex. 
D.  472. 

(w)  Mattock  V.  Heath,  W.  N.,  1875.  201,  Lush,  J. 

(x)  Cashin  v.  Craddoclt,  L.  R.,  2  Chan.  D.  140  V.  C.  B. ;  Anon.  W.  X. 
1876,  53,  Archibald,  J. 

{y)  Anon.  W.  N.  1876,  55,  Archibald,  J. 


606  DISCOVERY   AND   INSPECTION. 

Order  31.  delivery  of  his  defence,  (r)  Where  a  plaintiff  in  an  action  for 
EuLE~li  damages,  on  breach  of  duty  in  carrying  goods  by  sea  by  over- 
loading the  ship,  was  unable  to  make  his  statement  of  claim 
sufficiently  specific  -without  production  of  documents,  although 
he  might  have  been  able  to  deliver  a  declaration  in  the  old 
general  form,  he  was  allowed  to  make  application  before 
delivery,  (a) 
Defen-  A  defendant's  proper  time  to  apply  is  after  delivery  of  his 

dant's  time  defence,  unless  he  can  show  special  grounds.(6)  However,  to 
to  apply.  ^,,^yg  costs  a  defendant  was  allowed  before  appearance  to 
inspect  documents. (c)  After  delivery  of  defence,  a  defendant  is 
entitled  to  discovery  of  all  documents  in  the  possession  of  the 
plaintiff,  almost  as  of  course,  and  without  indicating  what  they 
are,  or  tracing  anyone  of  them  to  the  possession  of  the  plaintiff.  (fZ) 
Yet  it  is  not  so  absolutel}  of  course,  that  it  is  to  be  had  if  the 
pleading  shows  the  case  to  be  one  in  which  such  discovery 
could  not  possibly  be  wanted. (e) 

So  if  the  application  appears  not  to  be  bona  fide  but  for 
delay,  and  to  throw  the  opposite  party,  a  foreigner,  out  of  a 
trial  at  the  coming  sittings. (/) 

As  the  applicant  cannot  know  what  documents  the  opposite 
party  has  until  he  sees  his  affidavit,  it  would  seem  that  the 
onus  rests  on  the  latter  and  that  prima  facie  no  grounds  are 
necessary  to  support  the  application.(^) 

It  is  probable  that  if  defendant  has  failed  to  answer  the 
plaintiff's  interrogatories,  he  cannot  obtain  an  order  for  dis- 
covery of  documents  until  he  has  himself  answered. 
At  later  After  issue   joined,    in    an   ejectment   action  to  recover   a 

stages.  vicarage  house,  plaintiff  has  been  allovved  to  see  the  agreement 

on   which  the   alleged   agreement    between   defendant's  and 
plaintiff's  predecessor  is  founded. (A) 

After  an  appeal  the  Court  of  Appeal  may  make  an  order 
for  production  of  documents  to  be  used  on  the  appeal. (z) 

All  apj)lications  for  discovery  of  documents  under  this  rule 
must  be  by  summons  at  Chambers.  Ord.  li..  Rule  2  (7.)(A) 
Although  the  rule  dispenses  with  the  filing   of  any  affidavit, 

(z)  Anon.  "VV.  N.  1875,55. 

(«)  Ley  V.  Marshall,  W.N.  1876,  23;  20  Sol.  Jour.  241, 
Liudley,  J. 

(6)  Anon.  W.  N.  1876,  53,  Archibald,  J. 

(c)  Anon.  W.N.  I87f!,  220;  20  Sol.  Jour.  81,  Lnsh,  J. 

(rf)Anon.  W.  N.  1875,  231;  20  Sol.  Jour.  102,  Quain,  J.  Anon. 
W.  N.  1876,  22 ;  20  Sol.  Jour.  242,  Lindley,  J.  Anon.  W.  N.  1876. 
24 ;  20  Sol.  Jour.  243,  Lindley,  J. 

(e)  Anon.  W.  N.  1876,  53,  Archibald,  J. 

(/■)  See  Anon.  W.  N.  1875,  238  ;  20  Sol.  -Tour.  102,  Quain,  J. 

(g)  Anon.  W.  N.  1876,  24 ;  20  Sol.  Jour.  24,  Lindley,  J.  See  case  of 
Mostyn  ('.  Western  Coal  and  Iron  C.  W.  N.  1875,  26,  lluddlestone,  J, 
which  seems  not  a  case  of  discovery  of  documents  (written  receipts  for 
rent),  but  of  the  fact  of  rents  havin<;  been  received  by  a  landlord. 

(A)  Anon.  W.  N.,  1876,  11,  20  Sol.  Jour.  219,  Archibald,  J. 

(0  See  In  re  National  Funds  Assurance  Co.,  W.  N.,  1876,  192,  24 
W.  R.,  774;  20  Sol  Jour.  584,  A.  C. 

(Jc)  See  Anon.  20  Sol.  Jour.  32,  Lush,  J. 


DISCOVERY   AND   INSPECTION.  G07 

still  the  Court  may  require  one,  if  in  its  discretion  it  thinks    Order  31. 

fit.(Z)      It  is  not  compulsory  on  a  Judge  to  make  an  order 

for  discovery  of  documents  without  an  affidavit,  where  there  is 

nothing  in  the  nature  of  the  case  to  suggest  that  important 

documents  are  in  the  power  of  the  opposite  party.(m) 
Interrogatories  on  this  subject  are  improper.(n) 
The  usual  order  made  is  for  the  discovery  of  documents  that 

then  are,  and  that  have  been  in  the  possession  or  power  of 

the  party  inteiTogated. 

12.  The  affidavit  to  be  made  by  a  party  against  whom    Rule  12. 
sucli  order  as  is  mentioned  in  the  last  preceding  Rule  ^£'","^°[^f 
has  been  made,  shall   specify  which,  if  any,  of  the  docu-  documeuts. 
ments  therein  mentioned,  he  objects  to  produce,  and  it  ord.  31. 
may  he  in  the  Form  No.  9  in  Appendix  (B.)  hereto,  with  K.  12,  E. 
such  variations  as  circxxmstances  may  require. 

The  form  of  affidavit  is  borrowed  from  Chancery  practice.  Form  of 
and  should  be  followed  at  least  substantially.     _  affidavit. 

It  is  exhaustive  and  complete.  An  athdavit  in  the  form  used 
in  the  Common  Law  Courts  though  filed  in  a  jjeuding  cause 
was  required  to  be  amended  according  to  the  new  form  after 
the  rules  came  in  force.(r/)  One  making  no  mention  of  books 
was  deemed  insufficient, (o)  and  so  one  omitting  to  refer  to 
documents  which  had  formerly  been  in  power,  &c.,(p)  or  in 
possession  of  an  agent.^q) 

The  pai-ty  interrogated  is  bound  to  schedule  all  the  docu- 
ments which  are  actually  in  his  possession  or  power  relevant 
to  the  matters  in  question,  whether  privileged  from  production 
or  not,  leaving  it  to  the  Court  to  decide  whether  they  shall  be 
produced  or  not,(/-)  and  they  should  be  specified  in  detail,  and 
not  as  '■'■  a  bundle  of  documents  relating  exclusively  to  my  own 
title."(s)  but  with  sufficient  clearness  to  enable  them  to  be 
identified.  (?) 

According  to  Chancery  practice  the  affidavit  of  deponent 
was  accepted  as  conclusive,  so  far  as,  but  no  further  than  the 
question  whether  the  documents  mentioned  in  the  schedule  are 
all  that  he  has,  relevant  to  the  matters  in  question. 


(0  Mattock  V.  Heath,  W.  N.,  1875,  201,  20  Sol.  Jour.  54,  Lush,  J. 

(7»)  Johnson  V.  Smith,  25  \V.  R.  539,  21  Sol.  Jour.  499,  Ex.  D. 

In)  Pitten  v.  Chattenburg,  W.  N.,  1875,  248,  20  Sol.  Jour.  139, 
Quain,  J. 

(0)  Anon.  W.  N.,  1875,  240,  20  Sol.  Jour.  122,  Quain,  J. 

(0)  Anon.  W.  N.,  1876,  39,  20  Sol.  Jour.  261,  Lindley,  J. 

(p)  Anon.  W.  N.,  1876,  38,  20  Sol.  Jour.  261,  Liudley,  J. 

{q  Ledwidge  v.  Mayne,  Ir.  Rep.,  11  Eq.  463. 

(?•)  Fortescue  v.  Fortescue,  24  W.  R.  945,  V.  C  H.  See  Magdalen 
Hospital  V.  Knotts,  21  Sol.  Jour.  610,  Fry,  J.,  a  case  of  a  defendant  iu 
possession  in  ejectment. 

(s)  lb. 

(t)  Ledwidge  v.  Mavne,  Ir.  Rep.,  11  Eq.  463  V.C.  ;  see  Taylor  v. 
Oliver,  W.  N.,  1876,  241,  V.  C.  B.,  as  to  a  sufficient  identification. 


608 


DISCOVERY   AND   INSPECTION. 


Order  31. 

Documents 
protected. 

Rule  13. 


Rule  13. 
Production 
of  docu- 
ments re- 
ferred to 
in  plead- 
ings and 
affidavits. 
Ord.  31, 
II.  14,  E. 


Non- 
compliance. 


The  practice  in  Equity  prevails  now  over  that  at  common 
law,  that  unless  the  document  whose  production  is  sought,  is 
sufficiently  protected  by  the  affidavit  of  the  party  required  to 
produce  it,  the  judge  has  no  discretion  in  the  matter,  but  is 
bound  to  order  its  iiroduction,  but  the  party  may  of  course  be 
permitted  to  make  a  fresh  affidavit,  (m) 

The  cases  on  privileged  communications  have  been  considered 
already  under  Rule  3. 

A  defendant  is  entitled  to  inspect  the  documents  in  the 
possession  of  the  plaintiff  though  they  constitute  the  evidence 
on  which  he  relies  to  establish  the  contract  on  which  he 
sues.(;')  But  a  defendant  in  ejectment  is  still  privileged  from 
showing  his  title  deeds  and  cannot  see  those  of  the  plaintiff!;(H>) 
so  plaintiff  is  not  bound  to  produce  deeds  and  muniments  of  title 
which  he  swears  do  not  to  the  best  of  his  knowledge,  information, 
or  belief  contain  anything  impeaching  his  own  case  or  supporting 
or  material  to  the  case  of  the  defendant,  (a;) 

The  court  is  bound  to  consider  whether  they  do  fairlv  con- 
stitute a  part  of  the  case  of  the  person  claiming  the  production 
or  might  be  used  to  the  prejudice  of  the  party  holding  them 
for  some  ulterior  purpose. (?/) 

13.  Every  party  to  an  action  or  other  proceeding 
shall  be  entitled  at  any  time  before  or  at  the  hearing 
thereof,  by  notice  in  writing,  to  give  notice  to  any 
other  party,  in  whose  pleadings  or  affidavits  reference  is 
made  to  any  document,  to  j)rodnce  such  document  for 
the  ins])ection  of  the  party  giving  such  notice,  or  of  his 
solicitor,  and  to  permit  him  or  them  to  take  copies 
thereof;  and  any  party  not  complying  with  such  notice 
shall  not  afterwards  be  at  liberty  to  put  any  such  docu- 
ment in  eAT-dence  on  his  behalf  in  such  action  or  proceed- 
ing, unless  he  shall  sati.sfy  the  Court  that  such  document 
relates  only  to  his  own  title,  he  being  a  defendant  to 
the  action,  or  that  he  had  some  other  sufficient  cause 
for  not  complying  with  such  notice. 

As  to  profert  and  setting  out  of  deeds  in  pleading,  see  Com. 
Law  Pro.  Act,  1833,  s.  63,  and  as  to  production  and  inspection 
and  copy  of  any  deed  or  document  relied  on  in  pleading,  see 
s.  64.  This  Rule  extends  the  right  to  documents  referred  to 
in  affidavits  as  well  as  in  pleadings. 

Where  a  party  justified  under  a  deed,  the  opposite  party 

(u)  Bustros  V.  White,  L.  R.,  1  Q.  B.  D.  423,  24  W.  R.  721,  20 
Sol.  Jour.  585,  A.  C. 

(v)  Benjamen  v.  Sanlev,  Jr.  Rep.  G,  Com.  Law  1 G  C.  P. 

(iv)  Anon.,  20  Sol.  Jour.  l'J8 ;  Aiion.  AV.  N.,  187G,  23,  20  Sol.  Jour. 
242.  Lindley,  J.     Anon.,  W.  N.,  1876,  40,  20  Sol.  Jour.  2G1. 

(x)  Minet  ?-.  Morgan,  L.  R.  8  Chan.  3G1 ;  see  Bagnall  v.  Carlton, 
W.  N.  1876,  215  V.  C.  M. 

(»/)  Houghton  V.  London  and  Co.,  Assoc.  Co.,  17  C.  B.  N.  S.  80; 
Eliner  v.  Creasy,  L.  R.  9  Chan.  60. 


DISCOVERY   AND   INSPECTIOX.  ()0[) 

was  entitled  to  an  inspection  and  copy  of  it  thougli  not  a  party    Order  31. 
to  it  or  interested  in  it.(2) 

Inspection  of  deed  of  mortgage  in  an  action  of  ejectment 
by  the  mortgagee  against  the  mortgagor  was  refused  to 
executors  of  mortgagor  on  plaintiffs  giving  particulars  of 
amount  due,  for  principal,  interest,  and'  costs,  and  of  subsequent 
incumbrancers,(«)  and  as  to  production  of  lease  in  an  action 
brought  on  a  covenant  contained  in  it,  see. (J) 

14.  Notice  to  any  party  to  produce  any  docnments    Rule  u. 

referred  to  in  his  pleading  or  affidavits  shall  be  in  the  ^^^^e^^ 

Form  No.  10  in  Appendix  (B.)  hereto.  Ord.  3i, 

E.  u,  E. 

15.  The  party   to   whom    such   notice  is   given  shall,    rule  15. 
within  two  days  from  the  receipt  of  such  notice,   if  all  Offer  of 
the   documents  therein  referred  to  have  been  set  forth  ord.^3  ]',''" " 
by  him  in  such  affidavit  as  is  mentioned  in  Rule   12,  or  R.  is,  E. 
if  any  of  the  documents   referred  to  in  such  notice  have 

not  been  set  forth  by  him  in  any  such  affidavit,  then 
within  four  days  from  the  receipt  of  such  notice,  deliver 
to  the  party  giving  the  same,  a  notice  stating  a  time 
within  three  clays  from  the  delivery  thereof  at  which 
the  documents,  or  such  of  them  as  he  does  not  object  to 
produce,  may  be  inspected  at  the  office  of  his  solicitor, 
and  stating  which  (if  any)  of  the  documents,  he  objects  to 
produce,  and  on  what  ground.  Such  notice  may  be  in 
the  Form  No.  11  in  Appendix  (B.)  hereto,  with  such 
variations  as  circumstances  may  require. 

16.  If  the  party  served  with  notice  under  Rule  1-1    Rule  10. 
omits  to  give  such  notice  of  a  time  for  inspection,    or  ii,"pectiou. 
objects  to  give   inspection,    the    party    desiring  it    may  Ord.  01,^ 
apply  to  a  Judge  for  an  order  for  inspection.  ^-  ^^'  ■'^'• 

17.  Every  a})pli cation  for  an  order  for  inspection   of    Rule  17. 
documents  shall  be   to   a  Judge.     And  except   in   the  ---PPiica- 

T-T  IT  m    tion,  when 

case  of  documents  referred  to  m  the  pleadings  or  affi-  by  affidavit, 
davits  of   the    party  against  whom  the    application   is  ^'■*^'-,''^lj 
made,    or  disclosed  in  his   affidavit  of  docun\ents,  such     '    '' 
application  shall  be  founded  upon   an  affidavit  showing 
of  what  documents  inspection  is  sought,  that  the  party 
applying  is   entitled  to  inspect  them,  and  that  they  are 
in  the  possession  or  power  of  the  other  party. 

The  application  should  be  by  summons  at  Chambers,  Ord. 
53,  R.  2  (8). 

(z)  Penarth  Harbour  and  Ry.  Co.  v.  Cardiff  Waterworks  Co.,  7 
C.  B.  N.  S.  816. 

(a)  Anon.  W.  N.,  1876,  23,  20  Sol.  Jour.  24-2,  Lhidley,  J. 

(b)  Lake  v.  Pooley,  W.  N.,  1876,  5-1,  20  Sol.  Jour.  260. 

2  DS 


filO 


DISCOVERY  AND   INSPECTION. 


Ord.  31, 
K.  IS,  E 


Order  31.  When  inspection  of  books  is  allowed,  the  pai'ty  may  be 
Partial  permitted  to  seal  up  all  those  parts  of  the  books  which  he 
inspection,    pledges  his  oath  do  not  concern  the  matter  in  hand.(c) 

An  order  has  been  made  for  inspection  and  perusal  of  docu- 
ments by  counsel  of  applicants,  (f/) 

There  is  no  power  to  order  a  party  to  the  action  to  produce 
documents  not  in  his  possession  or  control,  or  to  stay  his  action 
until  a  third  person  produce  the  documents,  though  he  may  be 
the  former  owner  of  the  subject-matter  of  the  action.(c/c?) 

Rule  18.  18.  If  the  party  from  whom  discovery  of  any  kind 
Issue  or  q^  inspection  is  sought  objects  to  the  same,  or  any  part 
decfdeT  thereof,  the  Court  or  a  Judge  may,  if  satisfied  that  the 
preliminary  right  to  the  discovery  or  inspection  sought  depends  on 
for°dis-'  ^^^®  determination  of  any  issue  or  question  in  dispvite  in 
covery  or  the  action,  or  that  for  any  other  reason  it  is  desii'able  that 
inspection.  ^^^  jgg^^g  qj.  question  in  dispute  in  the  action  should 
be  determined  before  deciding  upon  the  right  to  the 
discovery  or  inspection,  order  that  such  issue  or  question 
be  determined  first,  and  reserve  the  c^uestion  as  to  the 
discovery  or  inspection. 

The  right  to  discoAery  or  inspection  may  depend  on  the  fact  of 
partnership,  agency  or  trust,  and  if  the  question  be  disposed  of 
the  right  would  fail,  and  it  is  essential  in  many  cases,  to  the 
protection  of  the  party  inten-ogated  from  unjust  and  injurious 
disclosures  to  settle  the  preliminary  question  first.  Thus, 
where  the  action  was  on  contract  to  give  plaintiff  a  commission 
on  a  certain  loan,  and  defendants  denied  the  contract  altogether, 
and  the  discovery  sought  was  whether  defendants  had  used  or 
acted  on  information  given  by  plaintiff,  which  was  the  con- 
sideration for  the  commission,  an  issue  was  directed  to  try 
whether  there  was  any  such  contract  between  the  parties,  (e) 

19.  If  any  pai-ty  fails  to  comply  with  any  order  to 
answer  interrogatories,  or  for  discovery  or  inspection  of 
documents,  he  shall  be  liable  to  attacliment.  He 
shall  also,  if  a  plaintiff,  be  liable  to  have  his  action 
dismissed  for  want  of  prosecution,  and,  if  a  defendant 
to  have  his  defence,  if  any,  struck  out,  and  to  be  j^laced 
in  the  same  position  as  if  he  had  not  defended,  and  the 
party  interrogating  may  api)ly  to  the  Court  or  a  Judge 
for  an  order  to  that  effect,  and  an  order  may  be  made 
accordingly. 


KULE  13. 

Failure 
enforced 
by  attach- 
ment. 
Ord.  31, 
K.  19,  E. 


(c)  Bull  V.  Clarke.  15  C.  B.,  N.  S.  851. 

(d)  hhnr  V.  IMassev,  Ir.  Rep.  5,  Eq.  G23. 

{(Id)  Frazer  v.  Burrows,  W.  N.,  1877,  7G  Ex.  D. 

0')  Wood  V.  Anglo-Italian  Bank,  20  Sol.  Jour.,  .•^32,  C.  P.  D.,  and 
Bee  Flower  v.  Lloyd,  20  Sol.  Jour.,  584,  703,  S.  C;  21  Sol.  Jour.,  708  ; 
see  Rowcliffe  v.  Lei-h,  25  VV.  E.  783,  21  Sol.  Jour.,  630,  A.  C. 


DISCOVERY  AND   INSPECTION,  611 

Under  the  Com.  Law  Pro.  Act  if  a  plaintiff  failed  to  answer    Order  31. 
interrogatories,  his  proceedings  were  jjstayed.(/)     In  Equity  Djgnji.g  of 
his  bill  might  be  dismissed,  (r/)     Where  there  was  abill  and  actiou. 
cross-bill,  and  plaintiff  in  the  former  failed  to  give  discovery, 
his  proceedings  were  stayed.  (/O     It  is  not  imperative  on  the 
Court  to  dismiss  the  action,  and  where  the  action  -was  that  of 
husband  and  wife,  for  the  wife's  benefit,  and  the  husband  had 
absconded  and  made    default  as  to   discovery,  dismissal  was 
refused  ;(/)  and  the  provision  has  been  deemed  so  highly  penal     . 
that  it  should  be  enforced  only  in  the  last  resort,  and  never 
where  the  party  really  intends  to  answer. (A) 

See  Com.  Law  Pro.  Act,  1856,  s.  56. 

The  plaintiff  may  instead  of  demanding  an  attachment  apply 
to  strike  out  the  defence,  leaving  defendant  in  the  same  position 
as  if  he  had  not  pleaded, (Z)  but  even  this  will  not  be  done 
except  in  the  last  resort.(/«) 

Where  the  omission  was  occasioned  by  a  change  of  solicitors 
further  time  was  granted.(n) 

After  several  orders  made  ineffectually,  a  peremptory  order 
was  made  that  unless  answer  given  within  twenty- four  hpm-s 
the  defence  should  be  struck  out.(o) 

Default  in  answering  interrogatories  is  not  per  se  ground  for 
entering  judgment  as  m  default  of  a  defence,  but  the  defence 
must  be  struck  out  first.(/>) 

20.   Service  of  an  order  for  discovery  or  inspection  made    Rl-le  20. 
against  any  party  on  his  solicitor  shall  be  sufficient  service  Service  on 
to  found  an  application  for  an  attachment  for  disobedience  Q^.^'^'g^'^' 
to  tlie  order.      But  the  pai-ty  against  whom  the  application  ^  io. 
for  an  attachment  is  made  may  show  in  answer  to  the 
application  that  he  has  had  no  notice  or  knowledge  of  the 
order. 

An  order  to  deliver  statement  of  names  of  the  partners  of  a 
defendant  under  Ord.  xvi.,  R.  1,  aiite,  or  to  file  a  sworn  account 
of  moneys  received  by  a  defendant  for  sale  of  goods  under  Ord. 
XV.,  R.  1,  does  not  come  withm  the  scope  of  this  rule.(</') 

And  this  sort  of  service  is  not  sufficient  to  found  an  attach- 
ment for  non-compliance  with  an  order  to  furnish  the  names 
of  co-partners,  or  to  furnish  an  account. (r) 

(/)  Reynolds  v.  Bloomfield,  8  Ir.  Com.  Law  Rep.  App.  U,  Q.  B. 
(a)  Republic  of  Liberia  v.  Roze,  L.  R.  9  Chau.  569. 
a)  S.  C,  L.  R.  1  Chan.  D.  1  71 ;  2-t  W.  R.   151,  A.  C. 
(0  Hartl«jy  v.  Owen,  W.  N.  1876,  193,  V.  C  H. 
(yfc)  Anon.  W.  N.  1875,  202 ;  20  SoL  Jour.  57,  Lush,  J. 
(0  Fisher  v.  Hughes,  25  W.  R.  528,  V.  C.  H. 

{m)  Twvcroft  v.  Grant,  W.  N.  1875,  201 ;  20  Sol.  Jour.  54,  Lush,  J. 
(n)  Anon.  W.  N.  1 875,  204,  Lush,  J. 

(0)  Twj-croft  V.  Grant,  W.  X.  1875,  229 ;  20  Sol  Jour.  97,  Quain,  J. 
(j))  Cullev  V.  Buttefant,  L.  R.  1  Chm.  D.  84,  24  W.  R.  55. 
(?)  See  Pike  v.  Frank  Keene,  W.  N.  1876,  36,  24  W.  R.  322  ;  20 
Sol.  Jour.,  251  Ex. 

00  lb. 


C12 


ADMISSIONS. 


Orc'er  31, 


Rule  21. 

Inability 
of  solicitor 
not  ap- 
prising 
client. 
Ord.  31, 
R.  21,  E. 

Rule  22. 

Using 
answers  to 
interro- 
gatories. 
Ord.  31, 
R.  22.  E. 


Order  32. 

Rule  1. 

jS'otice 
admitting 
claim,  &c., 
Ord.  32, 
R.  1,  E. 


Voluntary 
admissions. 


By  infants. 


Rule  2. 
Requisition 
to  admit 
documents. 
Ord.  32, 
R.  2,  E. 


The  service  of  the  order  on  the  solicitor  need  not  be  a  per- 
sonal sei'vice,  at  his  office  is  sufficient,  (ry) 

21.  A  solicitoi-  upon  whom  an  order  against  any  party 
for  discovery  or  inspection  is  served  under  the  last  Rule, 
who  neglects  without  reasonable  excuse  to  give  notice 
thereof  to  his  client,  shall  be  liable  to  attachment. 

22.  Any  party  may,  at  the  trial  of  an  action  or  issue, 
use  in  evidence  any  one  or  more  of  the  answers  of  the 
opposite  party  to  interrogatories  without  putting  in  the 
others  :  Provided  always,  that  in  such  case  the  Judge  may 
look  at  the  whole  of  the  answers,  and  if  he  shall  be  of 
opinion  that  any  other  of  them  are  so  connected  with  those 
put  in  that  the  last-mentioned  answers  ought  not  to  be 
xised  without  them,  he  may  direct  them  to  be  put  in. 

Formerly  a  party  examining  his  opponent  was  not  bound  to 
give  his  testimony  in  evidence,  but  if  he  used  any  part  he  was 
bound  to  give  all.(?-)  Now  he  may  put  in  one  answer  without 
the  rest,  subject  to  the  Judge's  examination  of  the  entire.  It 
would  seem  he  cannot  put  in  part  of  an  answer  without  the  I'est 
of  the  same  answer,  and  the  person  questioned  is  not  bound 
to  split  up  his  answer  to  suit  the  convenience  of  his  interro- 
gator, (s) 

Order  XXXIT. 

Admissions. 

1.  Any  party  to  an  action  may  give  notice,  by  his 
own  statement  or  otherwise,  that  he  admits  the  truth  of 
the  whole  or  any  part  of  the  case  stated  or  referi'ed  to 
in  tiae  statement  of  claim,  defence,  or  reply  of  any  other 
party. 

Although  each  party  has  a  right  to  call  on  the  other  to  a<lmit 
documents,  there  is  no  such  right  to  call  for  admission  of  facts 
at  the  peril  of  costs,  further  than  that  by  the  rultis  of  pleading 
(see  Order  xxi.,  R.  4),  a  party  may  be  made  to  bear  the  uxtra 
costs  occasioned  by  unnecessary  denials  or  not  admitting 
facts. 

How  far  admissions  of  facts  made  on  behalf  of  an  infant  by 
his  guardian  ov  pruchein  aiide  would  be  binding  on  the  infant  is 
more  than  doubtful  having  regard  to  the  old  Chancery  rule  and 
to  the  terms  of  Order  xviii.,  R.  10,  ante.(t) 

2.  Either  party  may  call  upon  the  otlier  party  to  admit 
any  document,  saving  all  just  exceptions  ;  and  in  case  of 

(7)  Clark  V.  Beamont,  20  Sol.  Jour.  882,  Huddlestoue,  J. 
(r)  Martin  v.  Hemmini,^  10  Ex.  478. 
(.S-)  See  Anon.  W.  N.  1870,  30  ;  20  Sol.  Jour.  261. 
(f)  See  however  Fryer  v.  Wi.senian,  24  W.  R.  205  ;  20  Sol.  Jour. 
211,  as  to  consent  to  mode  of  takiuj,^  evidence. 


INQUIRIES   AND   ACCOUNTS.  613 

refusal  or  neglect  to  admit,  after  such  notice,  the  costs  Order  32. 
of  proving  any  such  document  shall  be  paid  by  the 
party  so  neglecting  or  refusing,  whatever  the  result  of 
the  action  may  be,  unless  at  the  hearing  or  trial  the 
Court  certify  that  the  refusal  to  admit  was  reasonable  : 
and  no  costs  of  proving  any  document  shall  be  allowed 
unless  such  notice  be  given,  except  where  the  omission 
to  give  the  notice,  is,  in  the  opinion  of  the  taxing  officer, 
a  saving  of  expense. 

See  Chancery  Orders  164  G.  0.  27  March,  1843  ;  54  G.  O. 
31  January,  1868. 

Under  this  rule  it  will  doubtless  be  competent  to  require 
admission  of  a  copy  of  a  document  to  be  such  as  under  Com. 
Law  Pro.  Act,  1853,  s.  118. 

"Where  the  notice  is  to  admit  a  copy,  the  party  refusing  to 
admit  does  not  become  liable  to  costs  of  proving  the  original  at 
the  trial,  and  it  is  doubtful  how  ftir  a  party  can  be  reasonably 
called  on  to  admit  that  a  copy  is  uiore  than  a  copy,  or  to 
accept  it  hi  lieu  of  production  of  the  original.(M) 

3.  A  notice  to  admit  documents  may  be  in  the  Form    Rule  s. 
No.  12  in  Appendix  (B.)  hereto.  l^^.'^^f 

Ord.  32, 

4.  An  affidavit  of  the  solicitor  or  his  clerk,  of  the  due  R.  3,  E. 
signature  of  any  admissions  made  in  pursuance  of  any     Rule  4. 
notice  to  admit  documents,  and  annexed  to  the  affidavit,  of^fg„^^ 
shall  be  sufficient  evidence  of  such  admissions.  ture. 

Ord.  32, 

See  Com.  Law  Pro.  Act  (L-eland),  1853,  s.  119.  R.  4,  E. 


Order  XXXTII. 
Inquiries  and  Accounts.  Order  33. 

The  Court  or  a  Judge  may  at  any  stage  of  the  proceed-  iway  be 
ings  in  a  cause  or  matter,  direct  any  necessary  inquiries  ^^''any '^ 
or  accounts  to  be  made  or  taken,  notwithstanding  that  stage. 
it  may  appear  that  there  is  some  special  or  fui'ther  relief  '^^d.  32,  E. 
sought  for  or  some  special  issue  to  be  tried,  as  to  which 
it  may  be  proper  that  the  cause  or  matter  should  proceed 
in  the  ordinary  manner. 

The  object  of  this  order  is  to  save  the  expense  and  delay  Accounts, 
of  a  previous  hearing,  so  that  when  the  accounts  have  been 
taken,  the  action  may  be  once  and  for  ever  brought  on  by  way 
of  motion  for  judgment  instead  of  a  second  hearing  for  further 
consideration.(y) 

(u)  Eochfort  V.  Sedley,  12  Ir.  Com.  Law  Rep.,  Appen.  4. 
00  Turquaud  v.  Wilson,  L.   R.,   1   Chan.   D.   «5 ;  24   W.  R.,  5G, 
V.  C.  H. 


G14 


QUESTIONS   OF   LAW. 


Order  33.  To  obtain  such  an  order  plaintiff  must  make  out  a  prima  facie 
case  to  some  claim,  legal  or  equitable,  either  by  proof  or  ad- 
missions,(M')  the  admission  by  defendant  of  "a  moral  if  not 
legal  obligation,"  to  pay  certain  percentages  on  certain  receipts 
is  not  enough. (x)  An  admission  by  merely  not  denying  certain 
allegations  in  the  claim  is  not  sufficient  to  entitle  a  party  to  an 
account  under  this  order.  (;/) 

The  account  directed  may  involve  cross  accounts  suggested 
by  the  defence  of  all  dealings  and  moneys  received  or  paid  by 
plaintiff  or  defendant.(2) 

There  can  be  no  account  directed  for  a  defendant  arising 
out  of  his  counterclaim  before  the  principal  claim  is  dealt 
•with. (a) 
Inquiries.  In  an  action  for  partition  and  sale  of  property  by  part  owner 
of  one-eighth,  other  defendants  appearing  being  entitled  to  three- 
sixteenths,  and  others  claiming  five-eighths,  the  defendants  who 
appeared  admitting  the  deeds  and  facts  set  forth  in  the  statement 
of  claim,  inquiry  was  directed  as  to  who  the  persons  were  who 
were  interested  in  the  property,  and  their  shares,  and  the  hearing 
of  the  action  was  adjourned  meanwhile.(i) 


Order  34. 

Rule  1. 
Special 
cases, 
form  of. 
Ord.  34, 
R.  1,  E. 


Order  XXXIV. 

Questions  of  Laio. 

1.  Every  special  case  for  the  opinion  of  the  Court 
shall  be  divided  into  paragraphs  numl^ered  consecutively, 
and  shall  concisely  state  such  facts  and  documents  as 
may  be  necessary  to  enable  the  Court  to  decide  the 
questions  raised  thereby.  Upon  the  argument  of  such 
case  the  Court  and  the  parties  shall  be  at  liberty  to  refer 
to  the  whole  contents  of  such  documents,  and  the  Court 
shall  be  at  liberty  to  draw  from  the  facts  and  documents 
stated  in  any  such  special  case  any  inference,  whether  of 
fact  or  law,  which,  might  have  been  cLrawn  therefrom  if 
proved  at  a  trial. 

The  right  to  bring  a  special  case  at  law  was  conferred  by  the 
3  &  4  Vic,  c.  105,  s.  50,  extended  by  the  Com.  Law  Pro.  Act, 
1833,  s.  92. 

It  might  be  stated  by  consent  any  time  after  writ  issued  and 
before  judgment,  and  parties  might  agree  that  error  might  or 
might  not  be  brought  on  the  judgment,  sections  93,  94,  95. 

(?o)  See  a  case  of  this  nature  Eumsev  v.  Reade,  L.  R.,  1  Chan.  D. 
643;  24  W.  R.,  245,  20  Sol.  Jour.  25  V.'C.  B. 

(x)  See  Sickles  v.  Norris,  W.  N.,  1876,  44;  20  Sol.  Jciur.  297, 
Archibald  J. 

(y)  Rolfe  V.  Maclaren,  W.  N.,  187G;  142  V.  C.  H. 

(2)   lb. 

(a)  Turquand  v.  Wilson,  uh'i  supm. 

lb)  Gilbert  v.  Smith,  L.  K ,  2  Chan.  D.  C8G;  A.  C,  see  Bennett  v. 
Moore,  L.  R.,  1  Chan.  D.  692  V.  C.  U. 


QUESTIONS   OF   LAW.  '         615 

In  Chancery  the  right  was  conferred  by  the  Chan.  (Ire.)    Order  34. 
Act,  1867,  s.  111. 

As  to  reference  to  documents  see  s.  118. 

2.  If  it  appear  to  the  Coui-t  or  a  Judge,  either  from    Rule  2. 
the  statement  of  claim  or  defence  or  reply  or  otherwise,  ^|',."^*™^^' 
that  there  is  in  any  action  a  cj^uestion  of  law,  which  it  special 
would  be  convenient  to  have  decided  before  any  evidence  <^ase. 

is  given  or  any  question  or  issue  of  fact  is  tried,  or  before  ^'^^  ^^' 
any  reference  is  made  to  an  Arbitrator,  the  Court  or 
Judge  may  make  an  order  accordingly,  and  may  dii-ect 
such  question  of  law  to  be  raised  for  the  opinion  of  tlie 
Court,  either  by  special  case  or  in  such  other  manner  as 
the  Court  or  Judge  may  deem  expedient,  and  all  such 
further  proceedings  as  the  decision  of  such  question  of 
law  may  render  unnecessary  may  thereupon  be  stayed. 

This  rule  seems  intended  for  cases  where  the  Court  or  the 
Judge  sees  its  way  to  a  final  determination  of  the  action,  pro- 
vided some  one  question  of  law  which  must  in  any  event  be 
determined,  be  set  at  rest,  ex.  gr.,  in  a  patent  case  where  the 
suiHciency  of  the  specification  is  impugned. (c)  But  the  facts 
out  of  which  the  question  arises  must  be  admitted  or  proved,(6?) 
and  the  question  must  arise  out  of  facts  stated  in  the  pleadings, 
and  not  suggested  or  supplied  aliunde,  or  put  hypothetically, 
even  by  consent  of  parties. (e) 

The  Court  has  a  discretion  of  ordering  a  special  case  to  be 
stated  before  statement  of  claim  delivered,  where  it  sees  there 
is  a  question  of  law  to  be  decided  before  any  evidence  is 
taken.  (/) 

3.  Every  special  case  shall  be  printed  by  the  plaintiff,     rule  3. 
and  signed  by  the  several  parties  or  theii"  solicitors,  and  Printing 
shall  be  filed  by  the  plaintiff.     Printed  copies  for  the  use  '^'^^e- 

of  the  Judges  shall  be  delivei-ed  by  the  plaintiff.  Ord.  34, 

It  has  been  held  in  England  that  a  special  case  does  not 
require  the  signature  of  counsel  j(^)  but  see  119  G.  O.  31, 
Oct.,  1867,  Chancery. 

4.  The  committee  of  the  estate  of  any  lunatic  iuterested  rule  4. 
or  claiming  to  be  interested  in  any  such  question  as  afore-  Lunatic's 
said  may,  after  having  been  authorized  in  that  behalf  by  committee 


may 
concur. 


(c)  Eepublic  of  Bolivia  v.  National  Bolivian  Navigation  Co.,  24  W. 
R.  361,  per  Sir  Geo.  Jessel,  M.  R.,  at  p.  3G2. 

{d)  lb.,  and  see  Metropolitan  Board  of  Works  v.  New  River  Co., 
W.  N.,  1876,  194  Q.  B.  D. 

(e)  lb.  Anon.  W.  N.  1875,  200,  Lush,  J. 

If)  Metropolitan  Board  of  W^nks  v.  New  River  Co.,  L.  R.,  1  Q. 
B.  D.  727,  S.  C,  on  appeal,  L  R.,  2  Q.  B.  D.  67.  25  W.  R.,  175,  and 
see  Pooley  v.  Driver,  L.  R.,  5  Chan.  D.  458,  M.  R. 

(^)  Hare  v.  Hare,  W.  N.,  1876,  44  M.  R. 


616 


QUESTIONS    OF    LAW. 


Rule  5. 
Husband 
and  wife, 
by  hus- 
band. 


Order  34.   tlie  Lord  Chancellor,  concur  in  such  case  in  his  own  name 
and  in  the  name  and  on  the  behalf  of  the  lunatic. 

See  Chan.  (Ire.)  Act,  1867,  s.  112. 

5.  A  husband  interested  or  claiming  to  be  interested  in 
right  of  his  wife  in  any  such  question  as  aforesaid  may- 
concur  in  such  case  in  his  own  name  and  in  the  name  of 
his  wife  where  the  wife  has  no  claim  to  any  interest 
distinct  from  her  husband,  and  a  mai-ried  woman  having 
or  claiming  any  interest  in  any  such  question  as  afore- 
said distinct  from  her  husband  may  in  her  own  right 
concur  in  such  case,  provided  that  her  husband  also  con- 
curs therein. 

See  Chan.  (Ire.)  Act,  1867,  s.  113. 

G.  The  guardian  of  any  infant  interested  or  claiming 
to  be  interested  in  any  such  question  as  aforesaid  may 
concur  in  svich  case  in.  the  name  and  on  the  behalf  of  the 
infant,  unless  such  guardian  has  an  interest  in  such 
question  adverse  to  the  interest  of  the  infant  therein. 

See  Chan.  (Ire.j  Act,  1867,  s.  114. 


Rule  g. 

Infant  by 
guardian. 


Rule  7. 


7.  It  shall  be  lawful  for  the  Court,  by  order  to  be  made 
S  ecial  ^^  ^^^  matter  of  any  lunatic  not  found  such  by  iuquisi- 
guardian  tion,  or  in  the  matter  of  any  infant,  upon  the  application 
of  iiifant  or  ^f  ^j^y  person  on  the  behalf  of  such  lunatic,  or  upon  the 

application  of  such  infant,  by  motion  or  petition,  to 
appoint  any  person  shown  by  affidavit  to  be  a  fit  person, 
and  to  have  no  interest  adverse  to  the  interest  of  the 
lunatic  or  infant,  to  be  the  special  guardian  of  such 
lunatic  or  infant  for  the  purpose  of  concurring  in  such 
case  in  the  name  and  on  behalf  of  the  lunatic  or  infant, 
and  any  such  person  so  appointed  may  lawfully  so  concur  : 
Provided  always,  that  it  shall  be  lawful  for  the  Court 
to  require  notice  of  such  application  to  be  given  to  such 
person,  if  any,  as  the  Coui-t  shall  think  fit. 

See  Chan.  (Ire.)  Act,  1867,  s.  115. 

8.  In  any  case  in  which  any  such  order  as  aforesaid 
shall  have  been  made  by  the  Court  in  the  matter  of  any 
infant  without  notice  to  the  guardian  of  the  infant,  it 
shall  be  la^\-fvd  for  the  said  Court,  if  it  shall  think  fit  so 
to  do,  to  discharge  such  order,  upon  the  application  of 
such  guardian,  Ijy  motion  or  petition ;  and  the  Court,  if 
it  shall  think  fit,  may  thereupon  appoint  some  other  fit 
person  to  be  the  s])ecial  guardian  of  such  infant  for  the 
purpose  of  such  special  case,    and  may   also  give  such 


Rule  8. 

Discharg- 
ing orders, 
irregularly 
made. 


TEIALS.  617 

directions  as  may  be  necessary  for  substituting  in  such  Order  34. 
special  case  either  the  name  of  the  guardian  so  applying, 
or  of  the  special  guardian  so  appointed,  in  lieu  of  the 
name  of  the  special  guardian  so  displaced :  Provided 
always  that  the  discharge  of  any  order  appointing  a 
special  guardian  shall  not  invalidate  anything  which 
shall  in  the  meantime  have  been  done  by  such  special 
guardian,  unless  the  Court  shall,  upon  notice  to  all 
parties,  specially  so  dii-ect. 

See  Chan.  (Ire.)  Act,  1867,  s.  116. 

9.  No  special  case  in   an  action  to  which  a  married    Rcle  9. 
woman,    infant,    or  person  of  unsound  mind  is  a  party  Leave  to 
shall  be  set  down  for  argument  without   leave   of  the  l^^caslof 
Court  or  a  Judge,  the  application  for  which  must  be  disability, 
supported   by   sufficient    evidence   that    the    statements 
contained  in  such  special  case,  so  far  as  the  same  affect 

the  interests  of  such  mariied  woman,  infant,  or  person 
of  unsound  mind,  are  ti"ue. 

See  Chan  (Ire.)  Act,  1867,  s.  1 19. 

10.  Either  party  may  enter  a  special  case  for  argument    Rule  lo. 
by  delivering   to    the  proper  officer  a  memoranckim   of  Entry  for 
entry,  in  the  Form  No.    13  in  Appendix  (B.)   hereto,  q^^,'"!^ *" 
and  also  if  any  mari'ied  woman,  infant,   or  person   of  r.  5E.'' 
unsound  mind  be  a  party  to  the  action,  producing  a  copy 

of  the  order  giving  leave  to  enter  the  same  for  arg;ument. 


Order  XXXY. 

Trials. 
Place  of  Trial. 
Judicature  Act,  1877,  s.  33  (part  oj).  Oraer35. 

"Subject  to  Rules  of  court  the  plaintiff'  shall  in  the  Place  of 

document  by  which  each  caxise  shall  be  commenced,  name  *"'^^  ^?^^ 
,1  J.  1  •  1  ■   1     1  1  named  by 

the  county  or  place  m  which  he  proposes  that  the  cause  Plaintiff. 

shall  be  tried  or  proceeding  take  place,  but  the  court  or  Ord.  .36, 

a  judge,  may  in  theii"  or  his  discretion  direct  the  same  to  ^"  ^'  ^' 

be  tried  in  any  other  county  or  place,  and  so  far  as  shall 

be  reasonably  consistent  with  the  convenient  and  speedy 

discharge  of  the  business,  every  issue  and  question  of  fact 

to  be  submitted  to  a  jury  shall  be  tried  in  the  county  or 

place  where  the  cause  of  action  shall  have  arisen.     Any 

order  of  a  judge  as  to  the  place  of  trial  of  any  such  issue 

or  question  may  be  discharged  or  varied  by  a  Divisional 

Court." 


618 


TRIAL  BY  JURY. 


Order  35. 


Venue. 


But  by  Order  i,  Rule  1 ,  a7ite,  it  is  rendered  unnecessary 
in  the  writ  to  specify  any  county  or  place  unless  whei'S 
tlie  trial  is  to  be  by  jury. 

The  English  Order  xxxvi,  Rule  1,  declares  that  where 
no  place  of  trial  is  named  the  place  of  trial  shall  be  the 
county  of  Middlesex. 

As  to  writs  of  inquiry  the  Com.  Law  Pro.  Act,  185.3, 
s.  100,  directs  they  shall  be  dii'ected  to  the  Sherifi'  of  the 
proper  county,  i.e.,  the  county  mentioned  in  the  venue  but 
sciable  if  the  writ  mention  no  place 

The  plaintiff  has  the  right  of  fixing  the  place  of  trial 
subject  to  the  provision  for  its  being  changed  to  the 
county  in  which  the  caiise  of  action  has  arisen.  It  is 
therefore  so  far,  less  absolute  than  it  is  in  England,  and 
the  English  cases  on  the  subject  seem  inapplicable. 

There  is  therefore  no  local  venue,  and  an  action  for 
recoveiy  of  land  may  be  tried  in  any  county,  and  whether 
the  lands  be  in  the  same  county  or  in  different  counties,  («) 
but  if  the  lands  be  situ.ated  out  of  Ireland  it  would  seem 
no  action,  for  recovery  of  them  will  not  lie.  (6) 


Right  to 
trial  by 
jury  of 
questions 
of  fact. 


Trial  hy  Jury. 
J.  A.,  1877,  s.  48,  §  2. 

"  Provided  that  nothing  in  this  Act,  or  in  any  Pule 
made  under  its  provisions  shall  take  away  or  prejudice 
the  right  of  any  party  to  any  action  to  have  questions  of 
fact  tried  by  a  jury,  in  such  cases  as  he  might  heretofore 
of  right  have  so  requii*ed,"  &c.,  &c. 

The  English  Oi'der  xxxvi.,  gives  the  plaintiff  the  right 
to  select  any  one  ou.t  of  five  modes  of  trial,  one  of  these 
being  by  judge  and  jury.  If  he  omits  to  exercise  the 
right  or  names  any  other  mode  than  by  judge  and  jury, 
the  defendant  is  at  liberty  to  intimate  his  desire  to  have 
questions  of  fact  tried  by  judge  and  jury,  and  his  right 
in  that  respect  is  absolute,  unless  in  those  cases  which 
before  the  J.  Act,  could  without  any  consent  of  parties 
have  been  tried  without  a  jury,  of  course  consisting  mainly 
of  chancery  actions  proper,  see  Rules  3  and  26, 

The  effect  of  the  above  enactment  coui)led  with  Rules 
2  and  4  of  the  following  order  seems  to  be  somewhat 


(a)  See  Grav  v.  Lawder,  Ir.  Kep.  8,  Com.  Law  193  ;  see  the  Grocers' 
Co.  V.  Coll,  9  Ir.  Com.  Law  Kep.,  App.  8. 

(6)  See  Whitaker  v.  Forbes,  L.  K.  10,  C.  P.  583,  S.  C.  on  appeal 
L.  R.  1,  C.  P.  D.  .51,  2i  W.  R.  241  and  see  Chatfield  v.  Bertchtold, 
L.  R.  7,  Chan.  192. 


TRIAL  BY  JURY.  G19 

similar.  Questions  of  fact  are  still  to  he  tried  by  Judge  Order  35. 
aud  Jury  in  all  cases  in  which  either  party  might  hereto- 
fore of  right  have  required  such  a  mode  of  trial,  and  if 
the  plaiatiff  neglects  to  give  notice  of  trial  accordingly,  the 
defendant  has  the  option  of  himself  giving  such  a  notice, 
or  of  making  an  application  to  dismiss  the  action  for 
want  of  prosecution.  The  cause  can  be  tried  in  no  other 
way  unless  by  consent  and  leave  of  the  Court. 

An  action  for  damages  merely,  can  scarcely  be  tried 
otherwise  than. by  a  jury.(66) 

In  England  the  Court  or  a  Judge  may  without  consent 
in  any  cause  requiring  any  prolonged  examination  of  docu- 
ments or  accounts  or  any  scientific  or  local  investigation 
which  cannot  conveniently  be  made  before  a  jury,  order 
any  question  or  issue  of  fact,  or  question  of  account  therein 
to  be  tried  before  a  special  referee,  (c) 

In  Ireland  the  power  is  more  restricted.  The  Com. 
Law  Pro.  Act,  1856,  s.  6,  enables  the  Court  or  a  Judge, 
on  application  of  either  party,  and  it  appeai'ingthe  matter 
in  dispute  consists  wholly  or  in  part  of  matters  of  account, 
wliich  cannot  be  conveniently  tried  in  the  ordinary  way, 
either  to  decide  the  matter  summarily  or  to  refer  it  to  an 
arbitrator  selected  by  the  parties  or  to  the  Master  of  the 
Court,  or  in  country  to  the  Chairman  of  the  County. 

Under  the  Com.  Law  Pro.  Act,  1856,  s.  4,  the  parties 
may  by  consent  leave  any  issue  of  fact  to  the  decision  of 
the  Court,  provided  the  Court  thinks  tit  to  allow  it. 

As  to  trials  and  evidence  generally,  see  Chapter  liv., 
p.  391,  ante.  Exceptions  to  charge  of  Judge,  ib.  p.  396, 
and  J.  A.  1877,  s.  48,  §  3.{d) 

The  law  as  to  juries  is  unaltered ;  see  J.  A.  1877,  s.  66. 

(bb)  See  Row  v.  Jacob,  20  Sol.  Jour.  704,  V.  C.  H. 

(c)  J.  Act,  1873,  s.  57;  see  Garling  v.  Royds,  W.  N.  1876,  291 ; 
25  W.  R.  123,  V.  C.  H.,  where  there  was  a  very  voluminoits  corre- 
spondence to  be  dealt  with ;  see  Head  v.  Ryde,  21  Sol.  Jour.  297,  V.  C.  H. 
a  partnership  action  in  which  the  fact  of  partnership  was  denied;  Back 
V.  Hay,  25  W.  R.  392  ;  W.  N.  1877,  55,  V.  C.  M.,  an  action  to  rescind 
a  contract  on  the  ground  of  fraud,  tried  without  a  jurj' ;  Burrell  v. 
Cartwright,  21  Sol.  Jour.  238,  V.  C.  M.,  action  for  a  mandatory 
injunction  depending  on  amount  of  damages  incuiTed,  sent  to  a  jury; 
West  I'.  White,  L.  K.,  4  Chan.  D.  631  ;  25  W.  R.  342,  V.  C.  B.,  action 
to  restrain  a  nuisance,  sent  to  a  jury  of  the  county ;  Sykes  v.  Firth, 
W.  N.  1877,  38,  V.  C.  M.,  action  for  specific  performance,  no  right  to 
a  jury. 

(cT)  See  Richardson  v.  Corcoran,  7  Ir.  Com.  Law  Rep.  121,  Q.  B.,  as 
to  electing  between  an  exception  and  a  new  trial  motion. 


620 


TKIALS. 


Order  35. 


PtULE  1. 
How 

actions  are 
to  be  tried. 

Ord.  36, 
K.  2,  E. 


Role  2. 

Notice  of 
trial  by 
jury  by 
plaintiff. 
By  defen- 
dant. 

Ord.  36, 
Rs.  3&4,E, 


Venue. 


Rule  3. 

Directions 
as  to  trial 
in  other 
cases. 


Order  XXXY. 
KuLES  OF  Court. 

Trial. 

1.  Subject  to  the  provisions  of  the  Act,  actions  shall 
be  tried  and  heard  either  before  a  Judge  or  Judges,  or 
before  a  Judge  sitting  with  assessors,  or  before  a  Judge 
and  jury  with  or  without  assessors. 

The  English  Order  36,  R.  2,  allows  a  trial  before  an  official 
or  special  referee  with  or  without  assessors,  but  it  does  not 
permit  the  combination  of  assessors  with  a  Judge  and  jury  as  the 
above  rule  does,  and  in  general  it  gives  the  plaintiff  the  election  of 
choosing  the  mode  of  trial,  subject  to  change.  Under  the  Irish 
Order,  the  plaintiff  has  absolutely  no  choice.  If  the  case  be 
proper  for  a  jury  he  must  give  notice  accordingly,  and  if  it  be 
not  he  must  apply  to  a  Judge  to  direct  the  mode  of  trial ;  see 
Ilules  2  and  8. 

2.  In  cases  where  heretofore  any  party  to  an  action 
might  of  right  have  required  any  question  of  fact  to  be 
tried  by  a  jury,  the  plaintiff  may  with  his  reply,  or 
at  any  time  after  the  close  of  the  pleadings,  give  notice 
of  trial  by  a  Judge  and  jury,  and  shall  be  entitled  to 
have  the  same  so  tried.  If  the  plaintiff  shall  not  A\'ithin 
six  weeks  after  the  close  of  the  pleadings,  or  such  ex- 
tended time  as  a  Judge  shall  allow,  give,  in  such  cases, 
notice  of  trial  before  a  Judge  and  jury,  the  defendant 
may  give  such  notice.  When  no  county  or  place  of 
trial  has  been  named  in  the  writ  of  summons  the 
defendant  shall,  in  such  notice,  name  the  county  where 
he  proposes  that  the  action  shall  be  tried,  and  shall, 
subject  to  the  provisions  of  the  Act,  be  entitled  to  have 
same  tried  accordingly,  unless  the  Court  or  a  Judge 
shall  direct  the  same  to  be  tried  in  any  other  county. 

3.  In  all  cases  not  within  the  next  preceding  Rule, 
the  plaintiff  may,  with  his  reply,  or  at  any  time  after  the 
close  of  the  pleadings,  give  notice  of  an  application  to 
a  Judge  to  direct  the  mode,  and,  if  necessary,  the  place 
of  trial ;  and  if  the  idaintiff  shall  not  give  such  notice 
within  six  weeks  after  the  close  of  the  pleadings,  or 
such  extended  time  as  the  Court  or  a  Judge  shall  allow, 
the  defendant  may,  before  notice  given  by  the  plaintiff, 
give  such  notice.  Upon  such  apjjlication  the  Judge  may 
dii'ect  the  action  to  be  tried  in  such  mode,  and,  if 
before  a  Judge  and  jury,  in  such  county,  and  also  give 
such  directions  as  to  the  evidence  upon  the  trial  as  he 
shall  think  ht. 


TRIALS.  621 

The  mode  of  trial  is  so  mucli  a  matter  of  discretion  for  the    Order  35. 
Judge  that  a  Court  of  Appeal  will  be  slow  to  interfere  with  it, 
unless    it    is    plain   that    the  discretion  has   been   exercised 
wrongly,  (rf) 

4.  The    defendant,   instead  of  giving  notice    of  trial,     Edle  4. 
or  giving  notice  to  have  the  mode  of  trial  directed  by  a  Notice  to 
Judge,   may  apply  to  the  Court  or  Judge  to  dismiss  the  actk.u* 
action  for  want  of  prosecution  ;  and  on  the  hearing  of  ^^j.^  ^g 
such  application,  the  Court  or  Judge  may  order  the  action  R.  4(a),  _ 
to  be  dismissed  accordingly,  or   may  make   such    other  J""^'  i^'^- 
order,  and  on  such  terms,  as  to  the  Court  or  Judge  may 

seem  just. 

This  is  similar  to  the  84  G.  O.,  31  Oct.,  1867,  Chancery, 
and  bears  some  analogy  to  the  judgment,  as  in  case  of  a 
nonpros  at  common  law.  The  Com.  Law  Pro.  Act  (Ire.), 
1853,  s.  106,  substituted  an  application  for  an  order  to  proceed 
to  trial  at  next  assizes  or  sittings,  on  pain  of  dismissal  of  the 
action  with  costs. 

The  rule  may  induce  a  plaintiff  to  give  notice  of  trial  with- 
out intending  to  act  on  it,  a  course  much  disapproved  of.(e) 

As  to  failure  to  proceed  with  issues  in  Chancery  practice, 
see  (/). 

5.  Subject  to  the  provisions  of  the  Act  and  of  the    Rule  s. 
preceding  Rules,  the  Court  or  a  Judge  may,  in  any  action  Ju^^ge  may 
at  any  time,  or  from  time  to  time,   order  that  different  questions 
questions  of  fact  arising  therein  be  tried  by  different  modes  to  be  tried 
of  trial,  or  that  one  or  more  questions  of  fact  be  tried  JJi^o^'es!^^" 
before  the  others,  and  may  appoint  the  place  or  places  for  ^^^  gg^ 
such  trial  or  trials,  and  in  all  cases  may  order  that  one  R.  g,  e.' 
or  more  issues  of  fact  be  tried  before  any  other  or  others. 

In  an  action  for  damages  to  plaintiff's  vessel  while  in  the 
defendant's  dock,  the  Court  ordered  the  question  of  Hability, 
arising  in  the  action,  to  be  tried  separately  from  the  question 
of  damage,  which  would  involve  a  variety  of  items  of  a  com- 
plicated character  and  examination  of  accounts,  which  might 
become  useless,  or  be  referred  to  a  referee. (g-) 

6.  Every  trial  of  any  question  or  issue  of  fact  by  a    Rule  6, 
jury  shall  be  held  before  a  single  Judge,  unless  such  trial  ^^^^^^ 
be   specially   ordered  to   be  held    before    two    or    more  jury. 
Judges.  Ord.  36, 

As  to  trials  at  bar—see  77  and  78  G.  O.,  1834,  Common  Law.  ^- '''  ^^ 

(d)  LasceUesu.  Butt,  24  W.  R.  G39;  W.  N.  1876,  166;  20  Sol.  Jour. 
541,  A.  C. 

(e)  See  Anon.,  20  Sol.  Jour.,  81,  Lush,  J. 

(/)  Underwood  v.  Darracott,  Ir.  Rep.,  8  Eq.,  345,  M.  R. 

(</)  Liverpool  Brazil  Steam  Navigation  C.  v.  London  and  St. 
KatheriHe's  Steam  Navigation  C.,  W.  N.,  1875,  203;  20  Sol.  Jour., 
55,  Lush,  J. 


622 


TRIALS. 


Order  35.  7.  Notice  of  trial  before  a  Judge  and  jury  sliall  state 
Rule  7.  whether  it  is  for  the  trial  of  the  action  or  of  issues  therein ; 
Notice  of  and  in  actions  in  the  Queen's  Bench,  Common  Pleas, 
trial,  forms  ^^^-^j  Exchequer  Divisions,  the  place  and  day  for  which  it 
^^'  is  to  be  entered  for  trial.    It  may  be  in  the  Form  No.  14 

^^^  £^'       in  Appendix  (B.),  with  such  variations  as  circumstances 
may  require. 

EuLE  8.         8.  Where  a  demurrer  shall  have  been  filed  after  notice 
Wliere         of  trial  served,  such  notice  shall  be  deemed  to  be  a  notice 
damages       r^^^  ^q\[  to  try  the  issue  in  fact,   as  to  inquire   of  the 
assessed  on  damages  to  be  assessed  on  the  demurrer, 
demurrer.  ,  .        ,        , 

As  to  notice  of  trial  tam  triandum  quam  inquirendum,  see 
83  G.  O.,  1854,  Common  Law. 


9.  Ten  days  notice  of  trial  shall  be  given,  unless  the 
party  to  whom  it  is  given  has  consented  to  take  short 
notice  of  trial ;  and  shall  be  sulficient  in  all  cases,  unless 
otherwise  ordered  by  the  Court  or  a  Judge.  Short  notice 
of  trial  shall  be  four  days  notice. 

The  word  trial  probably  will  include  "  inquiry."  See  Com. 
Law  Pro.  Act  (Ire.),  185.3,  s.  103. 

10.  Notice  of  trial  shall  be  given  before  entering  the 
action  for  trial. 

This  seems  to  dispense  with  notice  of  entry  of  the  action  for 
trial. 

11.  Unless  within  six  days  after  notice  of  trial  is  given, 
the  actiorf  shall  be  entered  for  trial  by  one  party  or  the 
other,  the  notice  of  trial  shall  be  no  longer  in  force.  This 
rule  is  not  to  aj)ply  in  any  case  in  which  notice  of  trial 
has  been  already  given,  or  to  trials  not  in  Dublin. 

This  rule  is  like  that  in  the  Chancery  Rule  94  G.  O.,  31 
Oct.,  1867,  as  regards  motions  for  decree,  which,  if  not  set 
down  with  the  Registrar  witliiii  seven  days  after  notice  has 
been  served,  cannot  afterwards  be  set  down  without  an  order, 
or  consent  in  writing  of  the  defendant. 

Rule  12.  12.  Notice  of  trial  for  the  county  or  the  county  of  the 
city  of  Dublin  shall  not  be  or  oi)erate  as  for  any  particular 
sittings  ;  but  sliall  be  deemed  to  be  for  any  day  after 
the  expiration  of  the  notice  on  which  the  action  may 
come  on  for  trial  in  its  order  upon  the  list. 

Tills  rule  seems  to  do  away  with  the  necessity  for  continued 
renewals  of  notice  for  future  sittings. 


Rule  9. 

Length  of 
notice  of 
trial. 

Ord.  36, 
R.  9,  E. 


Rule  10. 

Notice  be- 
fore entry 
for  trial. 

Ord.  36, 
R.  10,  E. 

Rule  11. 

Notice, 
how  long 
in  force. 
Ord.  36, 
R.  10(A) 


Notice  for 

Dublin 

continuous. 

Ord.  30, 
R.  11,  E. 


TRIALS.  623 

13.  Notice  of  trial  elsewhere  than  in  the  county  of  Order  35. 
Dublin  or  the  county  of  the  city  of  Dublin  shall  be  Rule  i3. 
deemed  to  be  for  the  first  day  of  the  then  next  assizes  at  Notice  for 
the  place  for  which  notice  of  trial  is  given.  assizes. 

Notice  for   one  assizes  may  not  be  sufficient  for  a  future  R.  12. 
assizes  if  the  case  becomes  a  remunet. 

14.  No  notice  of  trial  shall  be  countermanded,  except    'Rule  14. 
by  consent,  or  by  leave  of  the  Court  or  a  Judge,  which  mand'of  ^'^' 
leave  may  be  given  subject  to  such  terms  as  to  costs,  or  notice  of 
otherwise,  as  may  be  just.  Oid'3(i 

15.  If  the  party  giving  notice  of  trial  for  the  county    „    '    '. 
or   the  county  of  the  city  of  Dublin  omits   to   enter  the  Entry  fur' 
action  for   trial  on  the  day  or  day  after  giving  notice  of  ^'^^^^  ^J 
trial,  the  party  to  whom  notice  has  been  given  may,  party  in 
unless  the    notice    has  been  countermanded    under   the  Dublin, 
last  Rule,  within  four  days  enter  the  action  for  trial.  r^i/  e. 

16.  If  notice  of  ti'ial  is  given  for  elsewhere  than  in    Rule  u. 
the  county  of  Dublin  or  the  county  of  the  city  of  Dublin,  ^-^^'^  ^^ 
either  party   may  enter   the   action    for  trial.      If  both  q^^  gg 
parties  enter  the  action  for  trial,  it  shall  be  tried  in  the  R.  is,  E. 
order  of  the  plaiiitifl's  entry. 

17.  The  list  or  lists  of  actions  for  trial  at  the  sittings  ^ule  17. 
in  the  county  of  Dublin  or  the  county  of  the  city  of  5?^"^"^ 
Dublin,  respectively  shall  be  prepared,  and  the  actions  Dublin, 
shall  be  allotted  for  trial,  without  reference  to  the  Ord.  36, 
Division  of  the  High  Court  to  which  such  actions  may  ^-  ^^'  ^' 
be  attached. 

18.  The  party  entering  the  action  for  trial  shall  deliver    ^^'^-^  is. 
to  the  ofiicer  two  copies  of  the  whole  of  the  pleadings  in  ^[*^,. 
the  action,  one  of  which  shall  be  for  the  use  of  the  Judge,  to  be  ^"^^ 

This  rule  applies  in  England  to  Chancery  actions  as  well  as  q^.^  „^^ 
others  and  whether  set  down  for  hearing  or  for  trial.  r.  17  e. 

19.  If,  when  an  action  is  called  on  for  trial,  the  plaintiff    Rule  19, 
appears,  and  the  defendant  does  not  appear,  then  the  plain-  Non-ap- 
tiff  may  prove  his  claim,  so  far  as  the  burden  of  proof  lies  defi!ndant° 
upon  him.  Ord.  36, 

In  Chancery  practice  the  plaintiff  got  such  decree  as  upon     '     ' 
the  pleadings  and  evidence  he  was  entitled  to.     Tlie  decree  is 
absolute,  yet  since  the  J.  Act,  when  occasioned  by  negligence  on 
the  part  of  the  clerk  of  the  solicitor  the  case  has  been  restored 
to  the  list  on  payment  of  costs.  (A)     A  similar  rule  prevailed  at 

(70  Birch  V.  Williams,  24   W.   R.,  700,  V.  C.  M.  ;  see  contra  Flower 
V.  Gedye,  23  Beav.,  Ud. 


624 


TRIALS. 


Order  35.  Common  Law  except  in  ejectments,  where  if  defendant  did 
not  appear  to  confess  lease,  entry  and  ouster,  plaintiff  was  non- 
suited.    This  was  cured  by  Com.  Law  Pro.  Act,  1856,  s.  205. 

EcTLE  20.  20.  If,  when  an  action  is  called  on  for  trial,  the  defen- 
Kon-ap-  dant  appears,  and  the  plaintiff  does  not  appear,  the 
pl^n^'iitiff*^  °  defendant,  if  he  has  no  connter-claim,  shall  be  entitled 
Ord.  3C.  to  judgment  dismissing  the  action,  but  if  he  has  a  counter- 
R.  19,  E.  claim,  then  he  may  prove  such  claim  so  far  as  the  burden 
of  proof  lies  upon  him. 

In  Chancery  practice,  the  bill  was  dismissed  and  this  unless 
otherwise  ordered  was  equivalent  to  a  dismiss  on  the  merits 
(102  G.  O.  31st  Oct.,  1867).  Where  issues  were  to  be  tried  and 
the  party  having  the  affirmative  failed  to  proceed  and  appear, 
the  issues  were  taken  against  him  pro  confesso.(i) 

At  Common  Law,  the  cause  was  struck  out  of  the  list  or 
plaintiff  was  non-suited,  and  defendant  on  an  affidavit  of  the 
facts  might  enter  a  side  bar  order  to  stay  proceedings  till  the 
costs  of  the  day  were  paid.(^) 

Now  the  defendant  is  entitled  to  have  the  action  dismissed, 
and  if  he  has  no  counterclaim  no  question  should  be  put  to  the 
jury,  (Z)  and  no  verdict  should  be  taken  for  defendant. (/n) 
It  seems  the  judgment  of  dismissal  is  final  and  conclusive  on 
the  merits  so  as  to  prevent  the  plaintiff  bringing  any  further 
action.(n) 

Rule  21.  21.  Any  verdict  or  judgment  obtained  where  one  x^^rty 
Judgment  does  not  appear  at  the  trial  may  be  set  aside  by  the  Court 
by  default    q^,  .^  Judsje  upon  such  terms  as  may  seem  fit,  upon  an 

SGL  B.SlU.6*  O  J.  »/  /  1 

o  d  36        application  made  within  six  days  after  the  trial ;  such 
R.  20,  E.      application   may  be  made    either  at  the   assizes    or   in 
Dublin. 

See  Michell  v.  Wilson.(o) 

22.  The  Judge  may,  if  he  think  it  expedient  for  the 
interests  of  justice,  postpone  or  adjourn  the  trial,  for 
such  time,  and  upon  such  terms,  if  any,  as  he  shall 
think  fit. 

See  Com.  Law  Pro.  Act,  1856,  s.  22,  which  conferred  the 
power  of  adjournment  which  always  belonged  to  the  Chancery 
Judges. 

The  exercise  is  now  more  essential  as  the  plaintiff  has  no 
longer  the  power  to  withdraw  the  case  from  trial. 

(*')  Underwood  v.  Darracott,  Ir.  Rep.  8  Eq.  345. 
(/;)  See  Calvert  v.  Power,  Jr.  Rep.  1)  Com.  Law  97,  Ex. 
(!)  Sullivan   v.   National    Shipping   Company,   20  Sol.    Jour.   642. 
Iluddlestone,  J. 

(?«)  Lane  v.  Eve,  W.  N.,  1876,  86 ;  20  Sol.  Jour.  320. 

(w)  lb. 

0>)  Michell  I'.  Wilson,  25  W.  R.,  380. 


Rule  22. 

Adjourn- 
ment of 
trial. 

Ord.  36, 
E.24,  E. 


TRIALS.  025 

Where   from   defect   of  parties   a  trial   is   adjoiirnorl   and    Order  35. 
witnesses  in  attendance,  it  was  allowed  on  terms  of  Tlaintiff 
paying  full  costs  and  not  the  costs  of  the  day  in  a  Chancery 
action,  (o) 

23.  Upon  the  trial  of  an  action  the  Judge  may,  at  or    Rui-e  23. 

after  the  trial,  dii-ect  that  iudo-ment  be  entered  for  any  Ju'^g"?. 

if>r>i  -1  vaay  direct 

or  either  party,  or  adjourn  the  case  tor  further  considera-  judgment 

tion,   or  leave  any  party  to  move  for  judgment.     No  to  be 

judgment  shall  be  entered  after  a  trial  without  the  order  ^^^^^  ,^^' 

of  a  Court  or  Judge.  R.  22(a'). 

The  Judge  has  no  power  to  order  judgment  to  be  entered 
save  at  the  trial  or  immediately  after  it  and  before  he  leaves 
the  Assize  Court.  The  motion  should  be  made  at  the  trial  or 
to  a  Divisional  Court,  (p) 

24.  Upon  every  trial  at  the  assizes,  or  at  the  Dublin    kole  2t. 
.sittings   of    the    Queen's    Bench,     Common    Pleas,    or  Findings 
Exchequer  Division,  the  Registrar  shall  enter  all  such  ^°}'^  , , 

.  ciittrGu  by 

findings  of  fact  as  the  Judge  may  direct  to  be  entered,  registrar, 
and  the  directions,  if  any,  of  the  Judge  as  to  judgment,  ord.  3C, 
and  the  certificates,  if  any,  granted  by  tlie  Judge,  in  a  R-  23,  E. 
l>ook  to  be  kept  for  the  purpose. 

This  entry  will  be  equivalent  to  a  Postea  and  applications  to 
amend  or  correct  errors  will  doubtless  be  made  to  the  Judge 
who  presided  at  the  ti'ial. 

2.5.  If  the  Judge  shall  direct  that  any  judgment  be    Ki'le  2.5. 
entered  for  any  party  absolutely,  the  certificate  of  the  Judgment 
Registrar  to  that  effect  shall  be  a  sufficient   authority  to  (,„  e'ertifi-'^ 
the  proper  ofiicer  to  enter  judgment  accordingly.       The  cate. 
certificate  may  be  in  the  Form  JSTo.  15  in  Appendix  (B.)  ^^^'^j,^^' 
hereto. 

If  the  judge  makes  an  order  for  judgment  without  more  the 
party  may  have  execution  forthwith. 

26.  If  the  Judge   shall  direct  that  any  judgment  be    Rule  2r. 
entered  for  any  party  subject  to  leave  to  move,  judgment  Liberty  to 
shall  be  entered  accordingly  upon  the  production  of  the 
Registrar's  certificate.  j^  .^^  -^ 

27.  In  cases  ordered  to  be  tried  before  a  Judge  the    ^,^^^  ^7 
Court  or  a  Judge  may,  if  it  shall  appear  either  before  or  judge  may 
at  the  trial  that   any  issue   of  fact   can    be  more  con-  °);',?''^/'''*'i 
veniently  tried  before  a  jury,  direct  that  such  issue  shall  jury. ""'^ 
be  tried  by  a  Judge  with  a  jury.  ord.  36, 


R.  27,  E. 


(o~)  Lydale  v.  Martinson,  21  Sol.  Jour   631. 

(y>)  fyne  Alkali  Company  v.  Lawsou,  W.  N.,  1877,  IS,  Ex.  D. 


G26 


TRIALS. 


Order  35. 


Rule  28. 
Trial  with 


Ord.  36, 
K.  2S,  E. 


Rule  29. 
Trial  be- 
fore com- 
missioners. 

Ord.  36, 
K.  29,  E. 


Tills  was  always  competent  to  a  judge  in  Cbancery.(/;)  In 
England  under  Ilules  which  do  not  exist  in  Ireland  it  was 
doubted  whether  the  Chancery  judge  was  not  under  necessity 
to  remit  the  case  for  trial  to  another  judge  at  the  assizes,  or  at 
sittings  in  London. (9) 

28.  Trials  with  assessors  shall  take  place  in  such 
manner  and  upon  such  terms  as  the  Court  or  a  Judge 
shall  direct. 

The  Chan.  (Ire.)  Act,  1857,  s.  162,  enabled  the  court  to 
obtain  the  asi^istance  of  accountants,  merchants,  engineers, 
actuaries  and  other  scientific  persons  in  such  way  as  the  court 
might  deem  lit,  and  to  act  on  their  certificate.  The  present 
Kule  seems  to  contemplate  something  more  and  to  introduce 
an  assistant  to  the  judge  in  the  shape  of  an  assessor,  with  this 
view  the  J.  A.,  1877,  s.  59,  authorizes  the  court  to  call  in  one 
or  more  assessors  specially  qualified,  and  to  try  and  hear  the  cause 
or  matter  wholly  or  partially  with  him  and  to  fix  his  remuner- 
ation, (r)  In  scientific  matters  it  is  too  often  found  aluiost 
impossible  to  find  a  qualified  person  who  has  not  formed  an 
opinion  a  priori. (^s) 

29.  In  any  cause  the  Court  or  a  Judge  of  the  division 
to  which  the  cause  is  assigned  may,  at  any  time  or  from 
time  to  time,  order  the  trial  and  determiaation  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  32nd  section  of  the  Act,  or  at  the 
sittings  to  be  held  in  Dublin,  and  such  question  or  issue 
shall  be  tried  and  determined  accordingly. 

Under  the  analoj20us  provision  in  England,  the  judges  of  the 
Chancery  Division  have  ordered  trials  at  the  assizes.  After 
much  dispute  the  English  Rules  provide  that  in  such  a  case 
any  order  directing  the  trial  at  an  assize,  &c.,  shall  state^  on 
the  face  of  it,  the  reason  for  Avhich  it  is  expedient  that  the  action, 
question,  or  issue  should  be  so  tried,  and  should  not  be  tried 
in  the  Chancery  Division. (<)  Where  a  Chancery  action  is 
tried  at  the  assizes  before  a  judge  of  another  division,  appli- 
cation for  a  new  trial  should  probably  be  made  to  a  Divisional 
Court  and  not  to  the  Chancery  Judge.(<f) 

(p')  See  Clarke  c.  Cockburii,  W.  N.,  187C,  130,  20  Sol.  Jour.  431, 
V.  C.  H. 

O7)  s.  c. 

{r)  See  Baltic  Co.  Limited  v.  Simpson,  21:  W.  R.  390,  20  Sol.  Jour. 
3.31, 'M.  K. 

(.S-)  See  Patterson  v.  Gas-light  and  Coke  Co,,  20  Sol.  Jour.  480. 

(0  See  Wood  v.  Hamblet,  L.  R.  6,  Chan.  D.  113,  M.  R. ;  Warner 
V.  Mia-dock,  L,  R.,  -1  Chan.  D.,  750;  M.  R.  25  W.  K.  207,  A.  C ;  Clarke 
V.  Cook.son,  L.  R.  2,  Clian.  J).  74(). 

(^0  Hunt  V.  Citv  of  London  Real  Property  Co.,  L.  R.  3,  Q.  B.  D. 
ly,  A.  0. 


[     627     ] 

Order  XXXVI.  Order  36. 

Evidence  generally. 

1.  In  the  absence  of  any  agreement  between  the  pai-ties,     Rule  i, 
and  subject  to  these  Rules,  the  witnesses  at  the   trial  oiJ  trlTi^by 
of  any  action  before  a  Judge  and  jury,  or  at  any  assess-  jury 
ment  of  damages,  shall  be  examined  viva  voce  and  in  open  '"'''"'^  ^'*"^^" 
court,  but  the  Coui't   or  a  Judge  may  at  any  time  for 
sufficient  reason  order  that  any  particular  fact  or  facts 

may  be  proved  by  affidavit,  or  that  the  affidavit  of  any  Affidavit 
\^dtness  may  be  read  at  the  heai-ing  or  trial,   on   such  "*  ^° 
conditions  as  the  Court  or  Judge  may  think  reasonable,  fact. 
or  that  any  witness  whose  attendance  in  court  ought  for  c^rd.  -37, 
some  sufficient  cause  to  be  dispensed  with,  be  examined     "   '    ' 
by  interrogatories  or    otherwise    before  a   chief    clerk, 
master,  commissioner,  or  examiner. 

See  as  to  evidence  generally,  Chapter  LIY.,  p.  396,  ante. 

In  England  it  seems  not  competent  to  order  all  the  facts  to  be 
proved  by  affidavit,  or  that  the  affidavits  of  all  witnesses  in  the 
cause  be  read  at  the  trial. (?<)  The  experience  of  the  Judges  of 
the  Chancery  Division  in  England  has  not  been  favourable  to 
the  resort  to  viva  voce  examination  of  witnesses  in  ordinary 
Chancery  actions, (u)  and  it  will  not  be  allowable  in  Ireland, 
unless  by  consent. 

A  consent  that  the  evidence  be  taken  by  affidavit  at  the 
trial  or  hearing  must  be  a  formal  consent  in  writing,  and  not 
one  to  be  gathered  from  a  correspondence. (;<;)  It  may  be 
entered  into  on  behalf  of  an  infant  by  his  guardian,  (a:) 

2.  In  trials  before  a  Judge  or  Judges,  or  before  a  Judge     Rule  i. 
sitting  with  assessors,  evidence  shall  be  taken  in  such  '.'^'^j^r,"'^ 
manner  as  the  Coiirt  or  a  Judge  shall  direct. 

3.  AVhere  it  appeai-s  to  the  Coiu't  or  Judge  that  the     Rple  3. 
other  party  bona  fide  desires  the  production  of  a  witness  Evidence 
for  cross-examination,  and  that  such  witness  can  be  pro-  not  when 
duced,   an    order  shall    not    be    made    authorizing    the  ^mina't^on 
evidence  of  such  witness  to  be  given  by  affidavit.  is  desired. 

Ord.  37, 

4.  Upon  any  motion,  petition,  or  summons,  evidence  ^^-  ^'  ^• 
may  be  given  by  affidavit ;  but  the   Court  or  a  Judge  g^^^^^ce' 

. , on  motion. 

Ord.  37, 

(u)  See  Attorney-General  v.  Pagham  Harbour  Co.,  W.  N.,   187G,  R.  2,  E, 
94  ;  20  Sol.  Juur.,  331,  V.  C.  H.     This  was  a  Chancery  action. 

(,v)  See  Patterson  v.  Wooler,  W.  N.,  1876,  110,  \.  C.  B. 

(w)  New  "Westminster  Brewery  Co.  v.  Hannah.  L.  R.,  1  Chan.  D. 
278  ;  20  Sol.  Jour.  132,  V.  C.  H. 

(.c)  Knatchbull  v.  Fowle,  L.  R.,  1  Chan.  D.,  601: ;  24  \\.  R.,  62'J, 
M.  R. ;  Fryer  v.  Wiseman,  24  W.  R.,  205  ;  W.  N.,  187G,  3  ;  20  Sol. 
Jour.  211,  V.  C.H. 

2  E  2 


6'2S 


EVIDENCE   GENERALLY. 


Order  36 


Rule  5. 
Affidavits 
couiinecl 
to  facts 
kt;own, 
not 

lieiirsny 
or  belief. 

Old.  37, 
K.  3,  E. 


^EULE  6. 

Order  for 
examin- 
ation or 
deposition 

Ord.  37, 
11.  4,  E. 


may,  on  the  application  of  either  party,  order  the  attend- 
ance for  cross-examination  of  the  person  making  any  such 
affidavit. 

Evidence  subsequent  to  the  hearing  ex  gr.  on  further  con- 
sideration may  be  taken,  it  is  presumed  bv  atii(hivit  or  deposi- 
tion. See  Chan.  (Jve.)  Act,  1867,  s.  10?',  and  163  G.  O.,  31 
Oct.,  1867,  Chancery. 

As  to  cross-examination,  the  Chan,  fire.)  Act,  1867,  s.  93, 
gave  a  right  to  cross-examine,  either  before  the  Court,  or  in 
certain  cases  before  the  Examiner,  a  deponent  making  an 
atHdavit  for  a  motion,  now  it  shoidd  seem  to  require  an  order, 
which  is  not  a  matter  of  course.(?/)  Where  the  deponent  is  a 
party  to  the  cause,  whom  there  are  other  means  of  reaching, 
the  proper  course  in  England  is  to  serve  notice  on  him  to 
attend  the  inquiry  at  the  proper  timcTz) 

An  affidavit  will  not  be  used  even  in  interlocutory  applica- 
tions as  to  the  fact  of  a  conversation  where  deponent  has  been 
required  to  be  produced. (a) 

5.  Affidavits  shall  be  confined  to  such  facts  as  the 
witness  is  able  of  his  own  knowledge  to  prove,  except  on 
intei'locutory  motions,  on  which  statements  as  to  his 
belief,  with  the  grounds  thereof,  may  be  admitted.  The 
costs  of  every  affidavit  which  shall  unnecessarily  set 
forth  mattei-s  of  hearsay,  or  argumentative  matter,  or 
copies  of  or  extracts  from  documents,  shall  be  paid  by  the 
party  filing  the  same. 

Affidavits  echoing  the  statement  of  claim,  and  as  to  matters 
of  which  deponent  had  no  personal  knowledge,  were  not  allowed 
to  be  read  at  the  hearing,  nor  probably  the  costs  of  them  in 
taxation.  (</«) 

tSee  147  6.  O.,  1854,  Common  Law,  as  to  prolixity  and 
scandal. 

6.  The  Court  or  a  Judge  may,  in  any  cause  or  matter 
where  it  shall  appear  necessary  for  the  purposes  of  justice, 
make  any  order  for  tlie  examination  upon  oath  befoi'e 
any  officer  of  the  coui-t,  or  any  other  person  or  persons, 
and  at  any  place,  of  any  witness  or  person,  and  may  order 
any  deposition  so  taken  to  be  filed  in  the  court,  and 
may  empower  any  party  to  any  such  cause  or  matter  to 
give  such  deposition  in  evidence  therein  on  such  terms, 
if  any,  as  the  Court  or  a  Judge  may  direct. 

(tj)  See  Skete  v.  lii.shop  Stortford  Local  Board,  20  Sol.  Jour.,  Wd, 
]Sr.  K.  It  is  usually  before  the  Examiner.  See  Civil  Service  Co- 
operative Societv,  2l"Sol.  Jour.,  129,  V.  C.  H. 

(,:)  See  Storer  v.  SimnKiuds,  W.  N.,  187(i,  40;  20  Sol.  Jour.,  2G0, 
Lindley,  J.  ;  and  see  Bates  v.  Eley,  24  W.  1,'..  424,  V.  C.  B. 

(a)  Bl.nckl  urn  Union  v.  Brooks,  L.  R.,  7  Chan.,  D.  68,  Fry,  J. 

;.«")  Aiion.  W.  N.,  I87G,  5'J  M.  R. 


EVIDENCE   BY    AFFIDAVIT.  629 

The  Chan.  (Ire.)  Act,  1867.  s.  91,  gave  either  side  the  right  Order  36. 
to  i.ssue  a  subpcEna  to  i-equire  the  attendance  of  any  witness 
before  an  examiner  in  order  to  use  his  deposition  on  a  motion 
or  petition  or  other  proceeding.  The  Com.  Law  Pro.  Act, 
1856,  s.  53,  required  a  motion  and  order,  and  this  latter 
practice  it  seems  is  to  prevail  in  the  High  Court. 

In  suits  to  perpetuate  testimony  it  may  be  useful,  and  see 
Chan.  (Ire.)  Act,  1867,  s.  98. 

Latterly  it  has  been  allowed  in  England  to  examine  witnesses 
in  Chambers  on  summons.  (&) 

As  to  examining  witnesses  in  Ireland  unable  to  attend,  see 
Chan.  (Ire.)  Act,"l887,  s.  103,  and  at  Common  Law,  3  &  4 
Vic,  c.  105,  s.  (i9. 

As  to  examining  -witnesses  in  England,  see  55  Geo.  III., 
c.  157,  enabling  Courts  to  appoint  commissioners  for  examina- 
tion of  witnesses ;  (c)  see  3  &  4  Vic,  c.  105,  s.  66,  as  to 
examining  witnesses  in  India  and  the  Colonies,  &c. 

The  Court  of  Chancery  exercised  power  to  issue  commis- 
sions to  places  not  withm  the  Queen's  dominions. 

On  an  allegation  that  a  witness  was  ill  and  not  able  to 
attend  the  trial,  a  special  examiner  was  appointed  to  take  his 
depositions,  but  same  not  to  be  used  at  the  trial,  unless  it  was 
proved  the  witness  was  unable  to  attend  or  out  of  the 
coLmtry.(cc) 


Order  XXXVII. 
Evidence  by  Affidavit.  Order^37. 

1.  "Within  fourteen  days  after  an  order  directing  evi-    Rule  i. 
dence  by  affidavit,  or  within  sucli  time  as  the  parties  Plaintiff's 

•^  T     1  •         1         1  n  afhdavitd, 

may  agree  upon,  or  a  Judge    m  chambers  may  allow,  when  filed. 

the  plaintiff  shall  file  his  affidavits  and  deliver  to  the  o,^j  33, 

defendant  or  liis  solicitor  a  list  thereof.  K.  1,  E. 

Whether  this  rule  points  to  affidavits  to  be  filed  specially 

for  the  purpose  of  the  hearing,  or  to  include  those  already 

filed  for  interlocutory  motions,  which  in  England  cannot  be  used 

without  special  leave  semble  ;  (d)  see  162  G.  O.  31  Oct.  1867, 

Chancery,  as  to  affidavits  filed  before  issue  joined,  requiring 

special  notice  of  using. 

2.  The  defendant  within  fourteen  days  after  delivery     kdle  2. 
of  such  list,    or   within  such  time   as   the  parties  may  Defen- 
agree  upon,  or  a  Judge  in  chambers  may  allow,  shall  file  'l-*"'*- 
his  affidavits  and  deliver  to  the  plaintiff  or  his  solicitor  ^'"'i';  '^ ' 

a  list  thereof. 

(6)  In  re  Springall  v.  Goklsack's  Contract,  W.  N.  1875,  225  ;   Anon. 
20  Sol.  Jour.  92  M.  R. 

(c)  See  Walker  v.  Bennett,  Ir.  Rep.,  5  Cora.  Law,  306  Ex.,  where  a 
plaintiff  was  so  examined. 

(oc)  Bell  V.  Hazleriffg,  21  Sol.  Jour.  610,  Fry,  J. 

(d)  Anon.  20  Sol.  Jour.  251,  per  Sir  Geo.  Jessel,  M.  R.  ;  see  Waring 
V.  Lacey,  20  Sol.  Jour.  311  M.  R. 


G30 


EVIDENCE   BY   AFFIDAVIT. 


Order  37. 

UULE  3. 

In  reply. 

Ord.  38, 
R.  3,  E. 


KULE  4. 

Kotice  to 
cross- 
examine 
deponent. 

Ord.  38, 
R.4,  E. 


Kon- 

production 
of  de- 
ponent. 

Expenses. 


3.  Within  seven  days  after  tlie  expiration  of  the  said 
fourteen  days,  or  such  other  time  as  aforesaid,  the  plaintiff 
shall  file  his  affidavits  in  reply,  which  affidavits  shall  be 
confined  to  matters  strictly  in  reply,  and  shall  deliver  to 
the  defendant  or  his  solicitor  a  list  thereof. 

See  95  G.  O.,  31  Oct.  1867,  Chancery. 

After  the  reply  no  further  evidence  can  be  used  without 
leave  of  the  Court. 

It  has  been  held  that  affidavits  in  reply  may  bring  forward 
additional  evidence  in  support  of  the  original  case,  and  are 
not  restricted  to  points  raised  by  defendant's  evidence. (t?J) 

4.  When  the  evidence  is  taken  by  affidavit,  any  party 
desiring  to  cross-examine  a  deponent  who  has  made  an 
affidavit  filed  on  behalf  of  the  opposite  party,  may  serve 
upon  the  party  by  whom  such  affidavit  has  been  filed,  a 
notice  in  writing,  recpiiring  the  production  of  the  deponent 
for  ci'oss-examination  before  tlie  Court  at  the  trial,  such 
notice  to  be  served  at  any  time  before  the  expiration  of 
fourteen  days  next  after  the  end  of  the  time  allowed  for 
filing  affidavits  in  re})ly,  or  within  such  time  as  in  any 
case  the  Court  or  a  Judge  may  specially  appoint ;  and 
unless  such  deponent  is  produced  accordingly,  his  affi- 
davit shall  not  be  used  as  evidence  unless  by  the 
special  leave  of  the  Court.  Tke  party  producing  such 
deponent  for  cross-examination  shall  not  be  entitled  to 
demand  the  expenses  thereof  in  the  first  instance  from 
the  pai'ty  requiiing  such  production. 

As  to  notice  to  produce  deponent  for  cross-examination,  see 
158  G.  O.,  31  Oct.,  1867.     Chan.  (Ire.)  Act,  1867,  s.  93. 

As  to  payment  of  expenses  of  witnesses  in  the  first  instance, 
a  diif  erent  (and  apparently  more  just  rule)  prevailed  under  Chan. 
(Ire.)  Act,  1867,  s.  93.  Where  a  witness  is  called  on  to  attend 
unnecessarily,  the  party  requiring  it  will  be  liable  to  bear  tlie 
expense,  though  he  may  be  successful  in  the  suit.(e) 

The  party  on  whose  behalf  the  affidavit  is  filed  is  supposed 
to  liave  the  dominion  over  the  witness,  and  therefore  bound  to 
produce  him(y)  and  with  this  view  he  is  enabled  by  rule  5  to  sue 
out  a  subpnena  ad  test,  to  enforce  his  attendance. 

An  application  to  take  off  the  file  an  affidavit  of  a  de- 
ponent not  produced  is  not  in  accordance  with  the  practice,  and 
all  that  the  party  requiring  his  production  can  ask,  is  that  the 
affidavit  be  not  read.(j?') 


(dd)  Peacock  V.  Harper,  26  W.  R.  109  V.  C.  H. 
(r-)  Guilfoyle  v.  Hutchinson,  Ir.  Kep.  8  Eq.  298,  V.  C. 
If)  Richards  v.  Goddard,  L.  R.,  17  Eq.  240. 
(J)  Meynck  v.  James,  "\V.  N.  1877,  120  M.  K. 


NEW   TRIALS.  631 

5.  The  party  to  wlaom  such  notice  as   is   mentioned   Order  37. 
in  the  hxst  preceding  Rule  is  given,  shall  be  entitled  to     rule  5. 
compel  the  attendance  of  the  deponent  for  cross-exami-  Subpoena 
nation  in  the  same  way  as  he  might  compel  the  attend-  "^^  *'^=*- 
ance  of  a  witness  to  be  examined.  2'''l"  ^?' 

R.  0,  lu. 

6.  When  evidence  in  any  action  is  under  this  order     Rule  e. 
taken  by  affidavit,  such  evidence  shall  be  printed,  and  I'nntiuff 
the  notice  of  trial  shall  be  given  at  the  same  time  or  '"■   '^  '^"  ^' 
times    after  the  close  of  the  evidence  as  in  other  cases  r  g  e' 
is  by  these  Rules  provided  after  the  close  of  the  pleadings. 

The  evidence  must  be  closed  before  notice  of  trial  is  given, 
and  therefore  affidavits  filed  afterwards  cannot  be  used  with- 
out leave.Cg-) 

7.  It  shall  not  be  necessary  to  prefix  interi-ogatories  to    Rule  7. 
any  affidavit  to  be  made  in  any  action,  suit,  or  matter.       Prefix  of 

interro- 
This  repeals  so  much  of  the  Chan.  (Ire.)  Act,  1867,  s.  104,  gatories. 
as  required  affidavits  to  be  used  at  the  hearing  to  be  by  way  of 
answer  to  interrogatories  prefixed. 


Order  XXXYIII. 

JVew  Trials. 
Schedule  Eule  32.  Order  33. 

"  A  new  trial  shall  not  be  granted  on  the  ground  of  Ord.  3D, 
misdirection  or  of  the  improper  admission  or  rejection  of  ^  '^^'  ^" 
evidence,  unless  in  the  opinion  of  the  Court  to  which  the 
application  is  made  some  substantial  wrong  or  miscarriage 
has  been  thereby  occasioned  in  the  trial  of  the  action  ;  and 
if  it  appear  to  such  Court  that  such  wi'ong  or  miscarriage 
affects  part  only  of  the  matter  in  controversy,  the  Court 
may  give  final  judgment  as  to  part  thereof,  and  direct  a 
new  trial  as  to  the  other  part  only  ;  and  a  new  trial  may 
be  ordered  on  any  question  in  an  action,  whatever  be  the 
grounds  for  the  new  trial,  without  interfering  with  the 
finding  or  decision  upon  any  other  question." 

As  to  setting  aside  a  verdict  as  being  against  the 
weight  of  evidence,  see  Dutch  v.  Power,(/i)  and  see  Com. 
Law  Pro.  Act  (Ire.),  1856,  s.  50. 

As  to  misdirection,  the  Court  had  formerly  no  discretion  5iis- 
to  I'efuse  to  set  aside  the   verdict,   although   clearly   of  "^I'l'ection. 
opinion  that  it  could  not  in  any  way  have  influenced  the 
verdict  and  no  substantial  wrong  had  resulted,  (t) 


(g)  See  Waring  v.  Lacev,  20  Sol.  Jour.  311,  JI.  R. 

(h)  Dutch  V.  Power,  Ir.  Rep.  1  Com.  Law,  193,  Q.  B. ;  Wallis  v. 
Great  Southern  &  Western  Ry.  Co.,  Ir.  Rep.  4  Com.  Law,  81. 

(i)  Parker  v.  Cathcart,  17  Ir.  Com.  Law  Rep.,  778,  C,  P.;  see 
Earp  V.  Faulkner,  W.  N.,  1876,  181,  A.  C, 


632 


NEW  TRIALS. 


Illegal 
evidence 


Exception. 


Order  38.        As  to  non-direction  when  it  amounted  to  misdirection, 
see  note.(^) 

As  to  directing  a  new  trial  as  to  pai't  where  there  were 
two  defendants  in  an  action  of  tort  and  a  verdict  against 
one,  and  in  favour  of  the  other,  the  nnsuccessfnl  defend- 
ant moved  to  set  aside  the  verdict,  it  was  hekl  that  notice 
shoukl  be  given  to  the  other  defendant,  and  that  thereupon 
there  was  power  to  make  the  order  as  well  against  the  co- 
defendant  as  the  plaintiff.  (/) 

As  to  setting  aside  a  verdict  on  the  ground  of  admis- 
sion of  illegal  evidence,  when  insisted  upon  after  objection, 
and  received  where  the  Court  thought  that  weight  might 
have  been  given  to  it  by  the  jury.(^  I) 

Where  exceptions  have  been  taken  the  party  niay 
enforce  his  right,  either  by  motion  to  the  High  Court 
(?'.  e.,  to  a  Divisional  Coui-t),  or  by  motion  to  the  Court 
of  Appeal  grounded  upon  the  exception  entered  on  or 
annexed  to  the  record,  see  J.  A.,  1877,  s.  48,  §  3,  and 
ante,  p.  39 6. (m) 

Rules  of  Court. 
1.  Applications  for  new  trials  shall  be  by  motion, 
grounded  on  the  certificate  of  coimsel  in  manner  now  in 
use  in  Courts  of  Connnon  Law,  for  an  order  calling  on 
the  opposite  party  to  show  cause  at  the  expiration  of  eight 
R.  n.a),  E.  days  from  the  date  of  the  order,  or  so  soon  after  as  the 
case  can  be  heard,  why  anew  trial  should  not  be  directed. 
Such  motion  shall  be  made  within  the  times  following, 
unless  the  Court  or  a  Judge  shall  enlarge  the  time  : — 

An  application  to  a  Divisional  Court  for  a  new  trial, 
if  the  trial  has  taken  place  in  Dublin,  shall  be  made  within 
four  days  after  the  trial,  or  on  the  first  subsequent  day  on 
which  a  Divisional  Court  to  which  the  application  may  be 
made  shall  actually  sit  to  hear  motions.  If  the  trial  has 
taken  place  elsewhere  than  in  Dubliuj  the  motion  shall  be 
made  within  the  first  four  days  of  thenextfollowingsittings." 
If  the  party  has  also  to  move  for  liberty  to  enter  judg- 
ment within  a  given  time,  the  two  motions  may  come  on 
for  arguident  together.  (?i)  So  where  the  party  has  the 
option  of  moving  for  a  new  trial  or  to  have  the  verdict 
entered  for  him.(o) 

(/:)  Williamson  v.  !M 'Combe,  Ir.  Kep.  5  Com.  L;n\-.  'I'.Hi. 

(/)  Purnell  v.  Great  Western  Ry.  Co.,  L.  R.,  1  Q.  B.  D.  036;  24 
AV.  H.,  009,  A.  C. 

(/;)  Hodson  V.  Midland  Great  Western  Ry.  Co.,  Ir.  Rep.  11  Com. 
Law,  KW,  Ex. 

(w)  SeeLinsday  v.  Condy,  W.  "NT.,  1S75.  21(1 

(»)  Scarth  V.  General  Sti/am  Navifiatinn  Co.,  20  Sol.  Jour.,  47,  Q.  B. 

\o)  Allgood  V.  Gibson,  20  Sol.  Jour.,  yo2. 


Rule  1. 

3Iotion  on 
certificate 
of  counsel. 

Ord.  39, 


Within 
four  days 


NEW   TRIALS.  638 

The  four  days  were  held  to  he  running  days,  provided  Order  38. 
the  last  be  one  on  which  a  Divisional  Court  is  sitting,  and 
further  it  is  stated  that  the  Divisional  Court  has  no 
power  to  extend  the  time  when  it  has  actually  expired,  (/>) 
but  see  Ord.  Ivii.,  R.  G,  infra.  The  Court  of  Appeal 
certainly  can  enlarge  or  extend  the  time  for  moving.  {(]) 

As  to  costs  of  aboi-tive  trials,  they  are  now  absolutely 
in  the  discretion  of  the  Court,  but  in  Ireland  hitherto 
tliey  have  almost  invariably  followed  the  ultimate  result. 
(/•)  In  England  this  rule  has  been  sometimes  regarded  as 
of  doubtful  propriety,  (s) 

As  to  application  for  new  trial  of  actions  remitted  to  a  county 
court.(i) 

2.  A  copy  of  such  order  shall  be  served  on  the  opposite    Rur,E  -2. 
party  within  four  days  from  the  time  of  the  same  being  ^opy  ^f 

made.  order. 

Ord.  3y, 
R.  2,  K. 

3.  An  order  to  show  cause  shall  be  a  stay  of  proceed-    rule  i. 
ino-s  ill  the  action,  unless  the  Court  shall  order  that  it  ^^^y  "f 
shall  not  be  so  as  to  the  whole  or  any  pari)  of  the  action,  jngg. 

Orel.  39, 
R.  3,  E. 

Order  XXXIX. 

Motion  Jor  Judymeat.  ' 

Rule  1. 
1.  Except  where  by  the  Act  or  by  these  Rules  it  is  obtained 
provided  that  judgment  may  be  obtained  in  any  other  ^y  motion, 
manner,  the  iud^ment  of  the  Court  shall  be  obtained  by  ^''^V  *t*^' 
motion  lor  judgment. 

This  does  not  apply  to  a  case  where  verdict  was  taken  before 
the  J.  Act  for  plaintiff  subject  to  an  award  of  a  referee,  and 
no  directions  given  as  to  signing  judgment,  and  plaintlif  may 
sign  judgment  under  the  old  system  without  moving  for  it.(M) 

(p)  Purnell  v.  Great  Western  Ry.,  24  W.  R.,  909,  A.  C. ;  and  see 
Robiuson  v.  Bannister,  W.  N.,  1876,  250,  A.   C. 

(?)  ^b- 

(r)  See  2  Ferg.  Prac,  999.  Byrne  v.  Elliott,  6  Ir.  Com.  Law  Rep., 
381  ;  and  see  Pilson  v.  Johnson,  6  Ir.  Com.  Law  Rep.,  505,  C.  P. 

(s)  Bostock  V.  North  Staffordshire  Ry.  Co.,  18  Q.  B.,  777,  per 
Erie,  J. ;  but  see  Creen  v.  Wright,  L.  R.  2,  C.  P.  D.  354,  A.  C. 

(0  See  White  v.  Mainwariug,  25  W  R.  253  Q.  B.  D.  London  u. 
Roffey,  L.  R.  3  Q.  B.  D.  6. 

Qu)  Lloyd  V.  Lewis,  W.  N.  1876,269;  25  W.  R.  102,  A.  C.  Sse 
Scutt  V.  Freeman,  L.  R.  2,  Q.  B.  D.  177,  as  to  case  remitted  to  a  county 
court. 

2e3 


634 


MOTION   FOR   JUDGMENT. 


Order  39.  Genei'ally  speaking,  and  under  the  rules  of  this  order,  judg- 
ment  can  be  had  only  on  a  specific  order  in  that  behalf  made 
by  the  Court  or  a  Judge.     See  chap.  Iv.,  p.  399,  ante. 

Application  maybe  made  to  the  Judge  at  the  trial  (when  there 
is  a  jury),  and  he  may  direct  it  to  be  entered  absolutely  and 
forthwith,  as  a  Chancery  Judge  might  have  done  at  the  close 
of  the  hearing,  and  on  the  certificate  of  his  liegistrar  it  will 
be  entered  forthwith.     See  Ord.  xxxv.,  R.  25. 

If  the  Judge  be  mistaken,  or  supposed  to  be  so,  apY)lication 
may  be  made  to  the  Court  to  direct  a  different  judgment  to 
be  entered. 

^V'liere  defendant  has  not  appeared,  notice  of  the  motion 
for  judgment  may  be  served  by  delivery  to  the  officer  under 
Ord.  xviii.,  R.  2l". 

Chancery  motions  for  judgment  are  not  (in  England) 
allowed  to  be  brought  on  as  ordinary  motions,  but  must  be  set 
down  in  the  Cause  Book,(/-)  and  when  the  cause  is  not  marked 
short,  it  will  come  on  into  the  General  Paper  in  its  regular 
turn. 

All  motions  to  set  aside  a  judgment  entered  by  direction  of 
a  Judge  on  the  finding  of  a  jury,  as  erroneously  entered,  must 
be  made  to  a  Divisional  Court. 

Where  defendant  does  not  enter  an  appearance,  the  notice 
of  motion  may  be  delivered  by  lodging  it  with  the  officer  under 
Ord.  xviii.,  li  21.(?t) 


Rule  2. 
Leave  to 
move 
setting 
down  for 
judgment. 


2.  "Where  at  the  trial  of  an  action  the  Judge  has 
ordered  that  any  judgment  be  entered  subject  to  leave  to 
move,  the  p  irty  to  whom  leave  has  been  reserved  shall 
set  doAvn  the  action  on  motion  for  judgment,  and  give 
notice  thereof  to  the  other  jiarties  within  the  time  limited 
by  the  Judge  in  reserving  leave,  or  if  no  time  has  been 
limited,  within  ten  days  after  the  trial.      The  notice  of 

Grounds  of  motion  shall  state  the  grounds  of  the  motion,  and  the 
relief  sought,  and  that  the  motion  is  pursuant  to  leave 
reserved. 

Where  the  party  wishes  both  to  move  pursuant  to  leave, 
and  also  to  apply  for  a  new  trial,  the  former  motion  has  been 
put  to  bottom  of  the  new  trial  paper  to  come  on  together  with 
the  motion  for  new  trial.  (5) 

3.  Where  at  the  trial  of  an  action  the  Judge  abstains 
from  directing  any  judgment  to  be  entered,  the  plaintiii 
may  set  down  the  action  on  motion  for  judgment.  Tf 
he  does  not  so  set  it  down  and  give  notice  thereof  to  t^e 
other  parties  within  ten  days  after  the  trial,  any  defena 


motion. 
Ord.  40, 
R.  2,  E. 


Rules. 
Wiieu  i!0 
direction 
plaintiir 
to  set 
down  in 
ten  days. 
Ord.  4", 
E.  3.  E. 


(q)  Dymock  v.  Croft,  L.  R,  3  Chan.  D.  512;  24  W.  R.  700,  M.  R. 
(r)  See  Notice  from  Chanceiy  Registrar's  OlF.ce,  December,  187G. 
0-r)  Williams  v.  Cinlwcll,  2.^  W.  H.  C4<: ;  W.  K,  1877, 140,  V.  C.  M. 
(«)  Lindsay  v.  Cuiuly,  W.  N.,  1675,  21G. 


MOTION   FOR  JUDGMENT.  635 

ant  may  set  down  the  action  on  motion  for  judgment,    Order  39. 
and  give  notice  thereof  to  the  other  parties. 

This  motion  should  be  for  a  rule  absolute  and  not  to  show 
cause  as  heretofore. 

4.  Where,  at  or  after  the  trial  of  an  action  by  a  jury,     Rule  4. 
the  Judge  has  dii-ected  that  any  judgment  be  entered,  Judgment 
any  party  may,   without    any  leave    reserved,  apply  to  pursuant 
set  aside  such  judgment  and  enter  any  other  judgment,  to  order. 
on  the  ground  that  the  judgment  directed  to  be  entered  get'as'ide.'^ 
is  wrong  by  reason  of  the  Judge  having  caused  the  find-  ord.  4o, 
ing  to  be  wrongly  entered  with  reference  to  the  finding  K.  i,  E. 
of  the  jviry  upon  the  question  or  questions  submitted  to 

them. 

Where,  at  or  after  the  trial  of  an  action  before  a  Judge, 
the  Judge  has  directed  that  any  judgment  be  entered, 
any  party  may,  without  any  leave  reserved,  apply  to  set 
aside  such  judgment  and  to  enter  any  other  judgment, 
upon  the  ground  that,  upon  the  finding  as  entered,  the 
judgment  so  directed  is  wrong. 

Formerly  unless  leave  was  reserved  by  the  judge  at  the 
trial,  the  party  aggrieved  could  not  move  to  enter  a  different 
verdict  or  judgment ;  all  he  could  do  was  to  move  for  a  trial 
de  novo. 

5.  Whei-e  issues  have  been  ordered  to  be  ti-ied,or  issues     rule  5. 
or  questions  of  fact  to  be  determined  in  any  manner,  the  Motion  ♦•  r 
plaintifi'  may  set  down  the  action  on  motion  for  judgment  Juclgmeut 
as  soon  as  such  issues  or  questions  have  been  determined,    na.to 
If  he  does  not  so  set  it  down,  and  give  notice  thereof  r.  7  j. 

to  the  other  parties  within  ten  days  after  his  right  so  to 
do  has  arisen,  then  after  the  expiration  of  such  ten  days 
any  defendant  may  set  down  the  action  on  motion  for 
judgment,  and  give  notice  thereof  to  the  other  pai-ties. 

6.  Where    issues  have  been    ordei-ecl  to  be  tried^  or 
issues  or  questions  of  fact  to  be  determined  in  any  man-       "^^  ''■ 
ner,    and  some  only  of  such  issues   or  questions  of  fact  partial 
have  been  tried  or  determined,  any  party  who  considers  trial, 
that  the  result  of  such  trial  or  determination  renders  the  Ord.  -m, 
trial  or  determination  of    the  others  of   them  unneces-  ^'  ^'  ^" 
sary,  or  renders  it  desirable  that  the  trial  or  determina- 
tion thereof  should  be  postponed,  may  apply  to  the  Court 

or  a  Judge  for  leave  to  set  down  the  action  on  motion 
for  judgment,  without  waiting  for  such  trial  or  determi- 
■  nation.  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 


636 


MOTION    FOR   JUDGMENT. 


Rule  7. 
Ko  motion 
al  ter  a 
year. 

Old.  40, 
II.  9,  E. 

Rule  8. 
Further 
considera- 
tion, trial 
or  account. 

Ord.  40, 
E,10.  E 


Order  39.   Avluch  may  appear  desirable  as  to  postponing  tlie  trial  of 
tlie  other  questions  of  fact. 

See  on  the  subject  of  this  Rule  note.(s) 

Formerly  there  could  be  no  more  than  one  judgment  ni  the 
action,  there  could  not  be  separate  judgments  on  issues  of  fact, 
or  more  than  one  taxation  of  costs,  but  this  is  no  longer  so\t) 

7.  No  action  shall,  except  by  leave  of  the  Court  or  a 
Judge,  be  set  down  on  motion  for  judgment  after  the 
ex[)iration  of  one  year  from  the  time  when  the  party 
seeking  to  set  down  the  same  first  became  entitled  so 
to  do. 

8.  Upon  a  motion  for  jiidgment,  or  for  a  new  trial, 
the  Court  may,  if  satisfied  that  it  has  before  it  all  the 
materials  necessary  for  finally  determining  the  questions 
in  dispute,  or  any  of  them,  or  for  awai-ding  any  relief 
sought,  give  judgment  accordingly,  or  may,  if  it  shall  be 
of  opinion  that  it  has  not  sufficient  materials  before  it  to 
enable  it  to  give  judgment,  direct  the  motion  to  stand 
over  for  further  consideration,  and  direct  such  issu^es  or 
questions  to  be  tried  or  determined,  and  such  accounts 
and  inquiries  to  be  taken  and  made  as  it  may  think  fit. 

See  Chan.  (Ire.)  Act,  1867,  s.  C9.(m) 

9.  Any  party  to  an  action  may  at  any  stage  thereof 
apply  to  the  Court  or  a  Judge  for  such  order  as  he  may, 
upon  any  admissions  of  fact  in  the  pleadings,  be  entitled 
to,  without  waiting  for  the  determination  of  any  other 
question  between  the  parties.  The  foregoing  Rules  of 
this  Order  shall  not  apply  to  such  applications,  but  any 
such  application  may  be  made  by  motion,  so  soon  as  the 
right  of  the  party  applying  to  the  relief  claimed  has 
appeared  from  the  pleadings.  The  Court  or  a  Judge  may, 
on  any  such  application,  give  such  relief,  siibject  to  such 
terms,  if  any,  as  such  Coiirt  or  Judge  may  think  fit. 

In  moving  for  interlocutory  relief  on  admissions  in  pleading 
the  cause  need  not  be  set  down.  It  may  be  for  want  of  an 
appearance  or  defence,  as  to  some  defendants  and  on  admissions 
as  to  others(y)  or  by  a  defendant  where  plaintiff  in  his  reply  to 
his  counterclaim  joined  issues  generally  witliout  denying  the 
facts  alleged  in  detad.(t(j)     But  mere  default  in  delivering  a 

(.s)  Republic  of  Bolivia  v.  National  Bolivia  Navigation  Co.,  W.  N. 
187li-77,  24  W.  R.  361,  20  Sol.  Jour.  311. 

0)  Grant  v.  Banque.  Franco-Etrvptieune,"W.N.,187G,  74,  Archibald,  J. 

(-0  See  Bennett  v.  Moore,  W.  R.,  (i90,  V.  C.  H. 

(r)  See  Bridson  v.  Smith,  24  W.  R.,  392,  W.  N.,  1876,  103  ;  20  Sol. 
Jour.  3.51,  V.  C.  H. 

(w)  Parsons  v.  Harris,  L.  R.,  G  Chan.  D.  694;  25  W.  R.,  410, 
V.  C.  H. 


Rule  9. 
Application 
for  relief 
on  ad- 
mission of 
tact  in  the 
pleadings. 
Ord.  40, 
R.  11,  E. 


ENTRY   OF   JUDGMENT.  6S7 

defence  is  not  an  admission  of  facts  in  a  Chanceiy  action  proper,  Order  39. 
but  the  cause  must  be  set  down  on  motion  for  judgment  under 
Ord.  xxviii.,  R.  10,  supra.(x)  Where  a  defence  purported 
to  be  that  of  husband  and  wife,  but  in  fact  stated  nothing 
as  regards  the  husband  judgment  was  given  against  him  under 
this  rule,(?/)  and  see  as  to  an  order  of  inquiry  as  to  parties 
entitled  in  a  partition  action  on  the  admission  of  one  defendant 
of  the  allegations  of  the  claim  as  to  title.(2:)  Where  defendant 
pleaded  a  counterclaim  and  plaintiff  joined  issue  upon  it 
generally  instead  of  dealing  specifically  with  its  allegation^,  the 
defendant  was  held  entitled  to  no  more  than  to  set  off  the 
amount  against  the  plaintiff  's  claim  and  recover  the  balance. (m) 
Court  will  not  treat  a  defence  which  may  be  bad  on  demurrer 
as  amounting  to  an  admission  under  this  rule.  (J) 


Order  XL. 
Entry  of  Judgment.  Order  40. 

1.  Every  judgment  shall   be   entered  by  the  proper     Rulei. 
ofHcer  in  the  book  to  be  kept  for  the  }>urpose.     The  forms  Entry, 
in  Appendix  (D)  hereto  may  be  used,  with  such  variations  ^■■*^'-  ^\' 
as  cii'cumstances  may  require.  "   ' 

2.  Where  any  judgment  is  pronounced  by  the  Court     Rule  2. 
or  a  Judge  in  Court,  the  entry  of  the  iudgment  shall  be  ^^**^' 
dated  as  of  the  day  on  wdiich  such  judgment  is  pronounced,  pronounced 
and  the  iudgment  shall  take  effect  from  that  date.  i"  Court. 

•^       ®  Ord.  41. 

3.  In  all  cases  not  ^vithin  the  last  preceding  Rule,  the  ^'  "^'  ^' 

entry  of  judgment  shall  be  dated  as  of  the  day  on  which     ^^^^  ^' 

the  requisite  documents  are  left  with  the  proper  officer  of™ocu-'°'^ 

for  the  purpose  of  such  entry,  and  the  judgment  shall  meuts. 

take  effect  from  that  date.  Ord.  4i, 

R.  3. 

4.  Where  under  the  Act  or  these  Rules,  or  otherwise,     Rule  4. 
it  is   provided  that  any  judgment  may  be    entered    or  Examin- 
signed  upon  the  filing  of  any  affidavit  or  production  of  |l"°"  ^^ 
any  document,  the  olHcer  shall  examine  the  affidavit  or  „   " 
document   produced,   and  if  the   same   be   regular  and  r!^  i,  e.' 
contain  all  that  is  by  law  recpiired  he  shall  enter  judg- 
ment accordingly. 

{x)  Gillott  V.  Kerr,  24  W.  R.,  428,  W.  N.,  1S76,  116,  and  see  Hall 
V.  Suelliugs,  20  Sol.  Jour.  312  M.  E.,  Hillniau  v.  May  hew,  24  W.  K., 
485. 

(jl)  Jenkins  v.  Davies,  L.  R.,  1  Chan,  D.  696;  24  W.  R.,  690. 

{z)  Gilbert  v.  Smith,  24  W.  R.,  568  ;  20  Sol.  Jour.  500,  A.  C. 

(a)  Rolfe  V.  M'Claren,  L.  R.,  3  Chan.  D.  106,24  W.  R.,  816;  20 
Sol.  Jour.  451,  V.C.  H. 

(b)  Mellor  v.  Sidebottom,  21  Sol.  Jour.  297,  V.  C.  II. 


638 


EXECUTION. 


Order  40. 

Role  5. 
Wheu 
under  an 
onler  or 
certificate. 
Ord.  41, 
R.  5,  E. 

Rule  G. 

Of  non- 
suit, effect 
of. 

Ord.  41, 
R.  6. 


5.  Where  by  the  Act  or  these  Rules,  or  otherwi.se, 
any  judgment  may  he  entered  pursuant  to  any  order  or 
certificate,  or  return  to  any  writ,  the  production  of  such 
order  or  certificate  sealed  with  the  seal  of  the  Court,  or 
of  such  return,  shall  be  a  sufiicieut  authority  to  the  olficer 
to  enter  judgment  accordingly. 

6.  Any  judgment  of  non-suit,  unless  the  Court  or  a 
Judge  otherwise  directs,  shall  have  the  same  efliect  as  a 
judgment  upon  the  merits  for  the  defendant;  but  in.  any 
case  of  mistake,  surprise,  or  accident,  any  judgment  of 
non-suit  may  be  set  aside  on  such  term.s,  as  to  payment 
of  costs  and  otherwise,  as  to  the  Court  or  a  Judge  shall 
seem  just. 

Hitlierto  the  effect  of  a  judgment  of  Nonpros  was  tliat 
plaintiff  might  have  commenced  a  fresh  action  lor  the  same 
matter. 

Under  this  rule  its  effect  will  be  final  and  conclusive  as  an 
ordinary  judgment  on  the  merits,  unless  the  Judge  otherwise 
shall  direct  as  was  done  in  a  case  before  INIr.  Justice  Brett. (a) 
When  an  action  is  dismissed  for  want  of  prosecution  it  is  at  an 
end  and  cannot  be  rev'ived  or  restored,  (i) 


Oi-der  41. 

Rule  1. 
Judgment 
for  pay- 
ment of 
money  to 
any  person. 

Ord.  42, 
R.  1.  E. 


Rule  2. 
Payment 
into  Court. 
Ord.  42, 
R.  2,  E. 

Rule  3. 
For 

possession 
of  land. 
Ord.  42, 
R.  S,  E. 


Order  XLI. 

Execution. 

1.  A  judgment  for  the  recovery  by  or  payment  to  any 
person  of  money  may  be  enforced  by  any  of  the  modes  by 
which  a  judgment  or  decree  for  the  payment  of  money  of 
any  Court  whose  jurisdiction  is  transferi-ed  by  the  said 
Act  might  have  been  enforced  at  the  time  of  the  passing 
thereof. 

A  suitor  obtaining  judgment  in  any  action  in  the  High  Court 
is  entitled  to  enforce  it  by  every  writ  of  execution  which  was  in 
use  heretofore  in  any  Court  of  Common  Law  or  Equity  for  a 
similar  purpose  whether  a  fieri  facias,  elegit,  sequestration  or 
attachment. 

A  demand  was  rendered  unnecessary  in  Chancery  by  127 
G.  O.,  31st  Oct.  1H67. 

2.  A  judgment  for  the  payment  of  money  into  Court 
may  be  enforced  by  writ  of  sequestration,  or  in  cases  in 
which  attachment  is  authoi'ized  by  law,  by  attachment. 

3.  A  judgment  for  the  recovery  or  for  the  delivery 
of  the  possession  of  land  may  ]je  enibrced  by  v^^rit  of  pos- 
session. 

((I)  .See  IVLattock  v.  Neath,  20  Sol.  Jour.  232. 

{b)  See  Whistler  v.  Hancock,  22  Sol.  Jour.  2G4,  Q.  B.  D. 


EXECUTION.  689 

4.  A  judgment  for  the  recovery  of  any  proi:»erty  other   Order  41. 
than  land  or  money  may  be  enforced  :  Rule  4. 

By  writ  for  delivery  of  the  property  :  Recovery 

By  writ  of  attachment  :  property. 

By  wi'it  of  sequestration.  qj.^  4.,, 

A  plaintiff  is  entitled  to  have  judgment  entered  for  recovery     "    ' 
of  specific  chattels,   and  execution  by  vrvit  of  delivery,  where 
damages  would  be  inappropriate. (c) 

5.  A  judgment  requiring   any  person  to  do  any  act     Rdle  5. 
other  than  the  payment  of  monev,  or   to  abstain  fi'om  Kequinng 

.  ,  .         '^    '^  '  '  person  to 

doing  anything,  may  be  enforced  by  writ  of  attachment,  do  net. 
or  by  committal,  O"^-  *'^' 

■^  R.  5,  E. 

6.  In  these  Rules  the  term  "  writ  of  execution  "  shall    Kule  g. 
include  writs  of  fieri  facias,  capias,  elegit,  sequestration,  ^'everal^ 
and  attachment,  and  all  subsequent  writs  that  may  issue  execution, 
for  giving  effect  thereto.     And  the  term  "  issuing  execu- 
tion against  any  party  "  shall  mean  the  issuing  of  any 

such  process  against  his  person  or  property  as  under  the 
preceding  Kules  of  this  Order  shall  be  applicable  to  the 
case. 

The  Avrit  of  elegit  seems  to  have  been  abolished  as  regards 
all  judgments  entered  after  loth  July,  1850,  by  the  statute 
13  &  14  Vic,  c.  29  (usually  called  the  Judgment-  Mortgage 
Act),  but  then  existing  judgments,  i.e.,  judgments  entered  on 
or  before  loth  July,  I80O,  were  not  affected  by  this  enactment ; 
and  so  far  such  judgments  if  duly  revived  may  still  (as  it  seems) 
be  enforced  by  elegit,  but  otherwise  the  writ  appears  to  be 
obsolete. 

It  is  to  be  observed  that  while  the  Schedule  E  contains  a 
form  of  praecipe  for  a  writ  of  elegit  (Xo.  2)  Appendix  F  con- 
tains no  corresponding  writ,  and  the  form  was  struck  out  at 
the  latest  revision  of  the  appendix,  but  the  praecipe  for  it 
remains     This  must  have  occurred  through  an  inadvertence. 

The  old  M'rit  of  capias  ad  satisficieridmn  although  included  in 
the  enumeration  above  is  now  obsolete,  and  its  puqjose  is 
partially  fulfilled  by  orders  of  committal  under  "  The  Debtors' 
Act."  All  mention  of  the  writ  of  capias  is  omitted  in 
Schedules  D.  &  E.  containing  praecipes  for  writs  and  writs  of 
execution. 

7.  Where  a  judgment  is  to  the  effect  that  any  party  is    rule  7. 
entitled  to  any  relief  subject  to  or  upon  the  fulfilment  Relief, 
of  any  condition  or   contingency,  the  party  so  entitled  subject  to 
may,  upon  the  fulfilment  of  the  condition  or  contingency,  ordVr  for^' 
and  demand  made  ujjon  the  party  against  whom  he  is  execution. 

— Ord.  42, 

(c)  Ivory  V.  Cruickshank,  W.    N.,  187G,   2t9,  20  Sol.  Jour.  140,  K-  7,  E. 
Quain,  J. 


G40 


EXECUTION. 


Order  41, 


Rule  8. 

On  judg- 
ment 
against 
partners. 


KULE  9. 

Iss:iie  on 
liroiluction 
(ll  juilg- 
ment. 


entitled  to  relief,  ;^pply  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  according  to  the  terms  of  the  judgment,  order 
that  execution  issue  accordingly,  or  may  direct  that  any 
issue  or  question  necessary  for  the  determination  of  the 
lights  of  the  pai'ties  be  tried  in  any  of  the  ways  in  which 
questions  arising  in  an  action  may  he  tried. 

Semhle  whether  this  applies  to  a  judgment  entered  on  a  bond 
in  a  penalty  in  case  of  non-performance  of  a  covenant  or 
agreement  at  a  future  time,  and  if  so,  whether  execution  can 
be  aAvai'ded  by  order  of  a  judge  without  assignment  of  breaches 
or  assessment  of  damages,  under  9  Wm.  III.,  c.  10,  ss. 
8  &  9.{d) 

Probably  a  judgment  against  an  executor  out  of  assets  of 
his  testator,  quandu  acciderint  may  come  within  the  purport  of 
this  rule,  and  so  possibly  to  have  execution  on  a  recognizance 
on  condition, 

8.  Where  a  juilgment  is  against  partners  in  the  name 
of  the  firm,  execution  may  issue  in  manner  following  : — 

(a.)  Against  any  propei'ty  of  the  partners  as  such  : 
(b.)  Against    any   person  who    has    admitted    on    the 
pleadings  that  he  is,  or  has  been  adjudged  to  be 
a  partner  : 
(c.)  Against  any  person  who    has  been  served,   as  a 
partner,  with  the  writ  of  summons,  and  has 
failed  to  appear. 
If  the  party  who  has  obtained  judgment  claims  to  be 
entitled  to  issue  execution  against  any  other  person  as 
being  a  member  of  the  firm,  he  may  apply  to  the  Court 
or  a  Judge  for  leave  so  to  do ;   and  the  Court  or  Judge 
may  give  such  leave  if  the  liability  be  not  disputed,  or  if 
such  liability  be  disputed,  may  order  that  the  liability  of 
such  person  be  tried  and  determined  in  any  manner  in 
"which  any  issue  or  question  in  an  action  may  be  tried 
and  determined, 

9.  Xo  writ  of  execution  shall  be  issued  without  the 
])roduction  to  the  ofiicer  by  whom  the  same  should  be 
issued  of  the  judgment  upon  which  the  writ  of  execution 
is  to  issue,  or  an  ottice  copy  thereof,  showing  the  date 
of  entry.  And  the  officer  shall  be  satisfied  that  the 
proper  time  has  elapsed  to  entitle  the  judgment  creditor 
to  execution. 

(r/)  See  Hall  v.  ]?lackwell,  10  Ir.  Com.  Law  Rep.,  App.  38,  Q.  B. 
Buclianan  v.  Jack,  Ir.  Kep.,  5  Com.  Law  41  Ex.  Quin  v.  O'Keeffe,  10 
Ir.  Cum.  Law.  Hep.  3[)3,  Q.  15. 


EXECUTION.  G41 

10.  No  writ  of  execution  shall  be  issued  without  tlie    Order  41. 
party  issuing  it,  or  his  solicitor,  filing  a  prtecipe  for  that    r^le  lo. 
purpose.      The   praecipe    shall   contain  the   title  of  the  Precipe 
action,  the  reference  to  the  record,  the  date  of  the  judg-  ^o*"- 
ment,  and  of  the  order,  if  any,  directing  the  execution  to  ^"j'^j^"'^ 
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  or  on  behalf  of  the  solicitor 
of  the  party  issuing  it,  or  by  the  party  issuing  it,  if  he 
do  so  in  person.  The  forms  in  Appendix  (E)  hereto 
may  be  used,  with  svich  variations  as  circumstances  may 
require. 

11.  Every  writ  of  execution  shall  be  indorsed  with  the    R^'i-^  ii- 
name  and    place  of  abode  or    ofiice  of  business   of  the  ,^,"!|j°''of" 
solicitor  actually  suing  out  the   same ;  and  in  case   no  name  and 
solicitor  shall  be  employed  to  issue  the  writ,  then  it  shall  '^^^^'^^^^j. 
be    indorsed    with  a  memorandum  expressing  that  the  ^tc. 
same  has  been  sued  out  by  the  plaintiff  or  defendant  in  ord.  42, 
person,  as  the  case  may  be,  mentioning  the  city,  town,  or  ^-  ^^'  ^• 
parish,  and  also  the  name   of   the    village,   street,   and 
number  of  the  house  of  such   plaintiff's  or  defendant's 
residence,  if  any  such  there  be. 

This  rule  was  for  the  protection  of  the  sheriff. (J) 

12.  Every  writ  of  execution  shall  bear  date   of  the    Rule  12. 
day  on  which  it  is  issued.     The  forms  in  Appendix  (E)  ^J^^^Jf^ '^"'^ 
hereto  may  be  used,    with   such  variations  as  circum-  q^,_^  ^^ 
stances  may  require.  K.  12,  K. 

1.3.  In  every  case  of  execution  the  party  entitled  to  Rule  13. 
execution  may  levy  the  poundage,  fees,  and  expenses  of  f,.es"aiKf'^' 
execution,  over  and  above  the  sum  recovered.  expenses. 

The  expenses  of  execution  include  costs  of  the  writ,  and  of  ^  13^  ^ 
levying  where  there  is  a  seizure  of  goods.(6') 

The  sheriff"  is  entitled  to  deduct  poundage  only  where  there 
is  a  levy,  and  where  debt  and  costs  are  paid  or  tendered  on 
demand,  or  on  presenting  the  warrant,  so  that  a  seizure  and 
sale  become  unnecessary,  there  is  no  right  to  poundage. (/) 

After  a  levy  sheriff  isentitled  to  deduct  the  poundage  out  of 
the  sum  levied,  even  if  there  be  no  surplus,  (g)  Where  a  term 
of  years  was  sold  for  £500  to  pay  a  debt  marked  at  £30,  the 

((T)  See  Martin  v.  Gregi,',  5  Ir.  Law  Rep.  559  ;  Long  v.  Littledale,  13 
Ir.  Law  Kep.  68  Ex. 

(e)  See  as  to  this,  llooneyu.  Farrell,  Ir.  Rep.  5  Com.  Law  377,  Q.  B.; 
Yates  V.  Meelian,  11  Ir.  Com.  Law  Rep.  App.  1,  Q.  B. 

{/)  Nash  V.  Dickenson,  L.  R ,  2  C.  P.,  252 ;  see  Yates  v.  Meehan, 
uhi  supra. 

{g)  Yates  v.  Meehan,  ubi  supra. 


642 


EXECUTION. 


Order  41. 


Rule  14. 

Indorse- 
ment of 
amount 
really  due 
and 

interest. 
Ord.  42, 
R.  14,  E. 


Rule  15. 
Fieri 

facias  aud 
elegit. 
Ord.  42, 
R.  15,  E. 


slieriff  could  only  have  poundage  on  the  latter  sum.  (7?)  If  he 
has  had  to  pay  a  landlord's  rent  out  of  the  levy  he  Is  entitled 
to  poundage  thereon,  (i) 

1 4.  Every  writ  of  execution  for  the  recovery  of  money 
shall  be  indorsed  with  a  direction  to  the  sheriff,  or 
other  officer  or  person  to  whom  the  writ  is  dii-ected,  to 
levy  the  money  really  due  and  payable  and  sought  to  be 
recovered  under  the  judgment,  .stating  the  amount,  and 
also  to  levy  interest  thereon,  if  sought  to  be  recovered, 
at  the  rate  of  £4  per  cent,  per  annum  from  the  time 
when  the  judgment  was  entered  up,  provided  that  in  cases 
where  there  is  an  agreement  between  the  parties  that 
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. 

See  Com.  Law  Re.  (Ire)  Act,  1853,  s.  127,  followino-  the 
6  Anne,  c.  7,  ss.  1  &  2,  which  subjected  any  person  who  wilfully, 
fraudulently,  or  maliciously  overcharges  the  debtor,  to  forfeit 
to  the  party  grieved  treble  damage  ;  see  Ferg,  C  L.  Pro. 
166. 

Semhie  is  this  enactment  repealed,  or  does  this  endorsement 
or  the  memorandum  contained  in  the  Frajcijie  Appendix  E. 
fulfil  the  requirement. 

15.  Every  person  to  whom  any  sum  of  money  or  any 
costs  shall  be  payable  under  a  judgment,  shall  imme- 
diately after  the  time  when  the  judgment  was  duly 
entered,  be  entitled  to  sue  out  one  or  more  writ  or  writs 
of  fieri  facias,  or  in  cases  where  a  writ  of  elegit  may  now 
by  law  be  issued,  a  writ  or  writs  of  elegit,  to  enforce 
payment  thereof,  subject  nevertheless  as  follov/s  : — 

(rt.)  If  the  judgment  is  for  payment  within  a  period 
therein  mentioned,  no  such  writ  as  aforesaid 
shall  be  issued  until  after  the  ex})iration  of 
such  period. 

(b.)  The  Court  or  Judge  at  the  time  of  giving  judg- 
ment, or  the  Court  or  a  Judge  afterwards,  may 
give  leave  to  issue  execution  before,  or  may 
stay  execution  until  any  time  after  the  expira- 
tion of  the  periods  at  which  such  execution 
might  otherwise  issue. 

As  to  Elegit,  see  note  on  Rule  6,  ante. 

The  fourteen  days  interval  which  should  elapse  between 
verdict  had  out  of  term,  and  judgment  and  execution  thereon 
is  now  abolished.  If  the  unsuccessful  party  wisiies  to  prevent 
immediate  execution  he  must  apply  for  a  stay. 


(/i)  Uvrne  v.  Hutchinsou,  Ir.  Kep.  'J  Com.  Law,  75  Q.  iJ. 


EXECUTION.  G43 

16.  A   wiit  of  execution  if  unexecuted  shall  remain   Order41. 
in  force  for  one  year  only  from  its  issue  unless  renewed    rule  16. 
in  the  manner  hereinafter  provided,  but  such  writ  may,  Writ  in 
at  any  time  before  its  expiration,  by  leave  of  the  Court  ^^rce  lor  a 
or  a  Judge,  be  renewed,  by  the  pai-ty  issuing  it,  for  one 

year  from   the  date  of  such   renewal,  and    so   on   from  Renewal 
time  to  time  duiiug  the  continuance  of  the  renewed  ^viit,  ^^■ 
either  by  being  marked  with  a  seal  of  the  Court  bearing  ^^'^le^'^ 
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 
bearmg  the  like  seal  of  the  Court ;  and  a  writ  of  exe- 
cution so  renewed  shall  have   effect,  and  be  entitled  to 
priority,  according  to  the  time  of  the  original  delivery 
thereof. 

See  Com.  Law  Pro.  Act,  1853,  ss.  Hi  &  143.  Ferg.  181. 

Thi.s  rule  requires  the  leave  of  the  Court  or  Judge  for  the 
renewal. 

As  to  rules  on  the  sheriff  to  return  writs,  see  120,  and  121, 
G.  O.  1834,  Common  Law. 

17.  The  production  of  a  writ  of  execution,  or  of  the    Rdle  it. 
notice  renewing  the  same,  purporting  to  be  mai'ked  with  How 
such    seal    as    in  the    last    preceding    Rule    mentioned,  ^q^^^^^-,  ' 
showing  the  same  to  have  been  renewed,  shall  be  suffi-  r.  17,  e. 
cient  evidence  of  its  having  been  so  renewed. 

18.  As  between  the  original  parties  to  a  judgment.  Rule  is. 
execution  may  issue  at  any  time  within  six  years  from  Execution 
the  recovexy  of  the  judgment.  six  years. 

See  Com.  Law  Pro.  (Ire.)  Act,  1853,   s.   148,  which  contains  Ord.  42, 
the  words  "  by  or  against  the  survivors  of  them,"  and  semhle  ^-  ^^'    ' 
can.  execution  issue  against  the  survivor  of  two  or  more  pai'ties 
named  in  a  judgment  without  the  order  of  the  Court. 

19.  Where  six  years  have  elapsed  since  the  judgment,    Rule  i9. 
or  any  change  has  taken  place  by  death  or  otherwise  in  Cbarige  of 
the  pai-ties  entitled    or   liable  to    execution,  the  party  Application 
alleging  himself  to  be  entitled  to  execution  may  apply  to  for  leave 
the  Court  or  a  Judge  for  leave  to  issue  execution  accor-  isj^ue"  ' 
dingly.     And  such  Court  or  Judge  may,  if  satisfied  that  ord.  42, 
the  party  so  applying  is  entitled  to  issue  execution,  make  R- 19.  K. 
an  order  to  that  effect,  or  may  order  that  any  issue  or 
question  necessary  to  determine  the  rights  of  the  parties, 

shall  be  tried  in  any  of  the  ways  in  which  any  question 
in  an  action  may  be  tried.  And  in  either  case  such  Court 
or  Judge  may  impose  such  terms  as  to  costs  or  otherwise, 
as  shall  seem  just. 

See  Com.  Law  Pro.  (Ire.)  Act,  1853,  s.  149. 


6U 


EXECUTION. 


Order  41. 


Rule  20 
Orders 
enforced 
as  judg- 
ments. 
Ord.  42, 
K.  20,  E. 


Rule  21. 

Enforcing 
orders  for 
tliird 
persons. 
Ord.  42. 
It.  21,  E. 


Rule  22. 
Audita 
querela, 
application 
in  nature 
of. 

Ord.  42, 
R.  22,  E. 


Rdle  23. 
Existing 
riglits  of 
execution. 
Ord.  42, 
K.  23,  E. 

Rule  24. 
Existing 
order  of 
issue. 
Ord.  42, 
11.  24,  E, 


The  application  for  leave  to  issue  execution  on  change  of 
parties,  and  to  ascertain  the  right  to  execution  by  un  issue  is 
analogous  to  the  writ  of  scire  facias,  or  revivor  on  suggestion, 
used  in  former  times,  and  it  may  be  that  an  order  to  issue  ex- 
ecution will  become  equivalent  to  a  judgment  of  revivor,  as 
affording  a  fresh  terminus  a  quo,  as  regards  the  Statute  of 
Limitations. 

20.  Every  order  of  the  Court  or  a  Judge,  whether 
in  an  action,  cause,  or  matter,  may  be  enforced  in  the 
same  manner  as  a  judgment  to  the  same  effect. 

An  order  for  payment  of  money  may  be  enforced  liy  execu- 
tion in  cases  in  which  an  order  of  committal  would  be  inappli- 
cable, or  by  making  it  a  set-off  or  counterclaim. (^) 

21.  In  cases  other  than  those  mentioned  in  Rule  18, 
any  person  not  being  a  party  in  an  action,  who  obtariis 
any  order  or  in  whose  favour  any  order  is  made,  shall 
be  entitled  to  enforce  obedience  to  such  order  by  the  same 
process  as  if  he  were  a  party  to  the  action ;  and  any 
person  not  being  a  party  in  an  action,  against  whom 
oljedience  to  any  juclgment  or  order  may  be  enforced, 
shall  be  liable  to  the  same  process  for  enforcing  obedience 
to  such  juclgment  or  order  as  if  he  were  a  party  to  the 
action. 

See  128  G.  O.,  31  Oct.,  1867,  Chancery. 

See  Com.  Law  Pro.  (Ire.)  Act,  18.53,  s.  143,  as  to  having 
execution  against  shareholders  in  a  company,  on  a  judgment 
against  the  public  officer.  (Z) 

22.  No  proceeding  by  audita  querela  shall  hereafter  be 
used  ;  but  any  party  against  whom  judgment  has  been 
given  may  apply  to  the  Court  or  a  Judge  for  a  stay  of 
execution  or  other  relief  against  such  judgment,  upon 
the  ground  of  facts  which  have  arisen  too  late  to  be 
}ileaded  ;  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  whatsoever. 

24.  Nothing  in  this  Order  shall  affect  the  order  in  which 
writs  of  execution  may  be  issued. 


(A)  See  rhilpott  v.  Lehain,  20  Sol.  Jour.,  G05,  C.  P.  D. 
(/)  See  Bert;in  r.  Pepper,  7  Ir.  Com.  Law  liep.,  45  Ex.,  as  to  service 
of  the  writ  of  scire  Jhcicis. 


WRITS   OF   FIERI   FACIAS  AND   ELEGIT.  645 

Hitherto  a  party  could  not  have  two  different  kinds  of  exe-  0rder41. 
cution  concurrently, (m)  nor  could  a  second  kind  be  issued 
until  the  first  had  been  returned.  (?0  It  is  presumed  a  party 
may  issue  any  number  of  wi-its  of  execution  of  the  same  kind 
to  "different  counties,  subject  to  the  disallowance  of  costs  if 
the  taxing  officer  considers  them  unnecessary.  See  104  G.  O., 
1854,  Common  Law. 


Order  XLIL 
Woits  of  Fieri  Facias  and  Elegit.  0rder42. 

1.  Writs  of  fieri  facias  and  of  elegit  shall  liave  the     Rule  i. 
same  force  and  efi'ect  as  the  like  writs  have  heretofore  Jj^''^ijtijf' 
had,  and  shall  be  execnted  in  the  same  manner  in  which  ggggt  o|  ' 
the  like  writs  have  heretofore  been  executed.  Ord.  43, 

1    ,  R.  1.  K. 

See  Com.  Law  Pro.  (Ire.)  Act,  185.3,  s.  131,  as  to  what  may 
be  seized  under  a  Fi.  fa.,  and  see  s.  1 37  as  to  disposal  of  proceeds. 

As  to  elefjit,  see  note  to  Ord.  xli.,  K.  6,  ante. 

As  to  liability  of  sheriff  to  a  purchaser  on  sale  of  a  leasehold 
interest  of  defendant  m  lands,  see.(ci) 

2.  Writs  of  venditioni  exponas,  distringas  nuper  vice     Rule  2. 

comitem,  and  all  other  wi-its  in  aid  of  writs  of  fieri  facias  Venditioni 

and  elegit,  may  be  issued  and  executed  in  the  same  cases  l^^""'^"' 

and  in  the  same  manner  as  heretofore.  Ord.  4.3, 
R.  2,  E. 

Order  43. 


Order  XLIIl. 
Attachment. 

1.  A  writ  of  attachment  shall  have  the  same  effect  as   ^^^.^^^^.^ 
a  writ  of  attachment  issued  out  of  the  Court  of  Chancery  ^^ll^^, 
has  heretofore  had.  meut, 

The  writ  of  attachment  in  Chancery  procedure  was  for  the  q^^,  44^ 
purpose  of  compelling  a  person  to  obey  the  order  of  the  Court  r.  1,  e. 
and  to  answer  for  his  contempt  in  refusing  or  neg:lecting  to 
comply.     In  this  sense  it  is  described  in  the  Ord.  xli.  R.  6,  as 
a  wnt  of  execution. 

The  Debtors  Act  does  not  interfere  with  the  ordinary  juris- 
diction of  the  Court  to  enforce  obedience  to  its  orders,  except 
so  far  as  they  requh-e  payment  of  a  sum  of  money  or  costs,  and 
in  this  respect  its  use  \3  restricted  to  certain  classes  of  cases. 
Where  an  order  is  made  under  it,  ex.  gr.  against  a  trustee  or 
executor,  to  pay  money  into  Court  by  a  certain  day,  although 
his  means  of  subsistence  be  so  very  slender  that  he  is  unal)le 
to  pay  within  the  time,  yet  Court  has  no  jurisdiction  to  dis- 
charge him  when  arrested  on  an  order  of  committal. (/?) 

(?«)  See  Fennell  v.  Dempsey,  1  Ir.  Jur.,  64  C.  P. 
(7;)  See  Hayden  v.   Sliearman,  4   Ir.   Com.   Law  Rep.,    1G9   Ex.; 
Sugrue  V.  Hovenden,  7  Ir.  Com.  Law  Rep.,  318,  C.  P. 
(0)  Keaniev  v.  Rvan,  Ir.  Rep.  10  Com.  Law,  .500  C.  P. 
{p)  Rausoai  v.  Boyd,  W.  X.  1877,  236  M.  R. 


646  ATTACHMENT. 

Order  43.  As  to  attachment  of  a  trustee,  see  (q)  and  after  judgment 
and  execution  against  him  in  the  ordinary  \vay.(<^^) 

Under  the  G.  O.,  16th  April,  1873,  E,.  6,  Chancery,  Avhere 
any  person,  by  any  decree  or  order  of  the  Court,  made  in  any 
suit  or  matter,  was  directed  to  do  any  act  other  than  or  be- 
sides the  payment  of  money  or  costs,  and  after  due  service  of 
the  decree  or  order  refused  or  neglected  to  do  such  act  accord- 
ing to  the  exigency  of  the  decree  or  order,  the  person  prose- 
cuting it,  at  the  expii-ation  of  the  time  limited  for  the  per- 
formance thereof,  was  entitled  to  a  writ  or  writs  of  attachment 
against  the  disobedient  person. 

If  a  party  fails  to  comply  with  an  order  to  answer  interroga- 
tories, or  for  discovery  or  inspection  of  documents,  he  is  liable 
to  attachment  under  Order  xxxi.,  R.  19,  ante. 

Before  an  attachment  can  be  had  for  disobedience  of  a  decree, 
ex.  gr.,  to  assign  certain  premises,  a  specific  time  should  be 
fixed  by  the  decree,  ex.  gr.  seven  days  after  service  of  the 
order  and  presenting  of  the  assignment.(r) 

Any  contempt  of  court  in  general  is  punishable  by  attach- 
ment, when  it  consists  of  disobeying  an  order  or  hinder- 
ing the  administration  of  justice,  but  the  exercise  of  an 
arbitrary  jurisdiction  of  this  nature,  is  to  be  jealously  and  care- 
fully guarded,  and  it  is  stated  that  courts  ought  not  to  resort 
to  it  except  in  extreme  cases  where  no  other  remedy  can  be 
found,  (r/-) 

The  Form  of  the  writ  in  Appendix  F,  No.  5,  docs  not  state 
at  what  time  the  writ  should  be  returned.  If  not  returned  by 
the  Sheriff  within  a  reasonable  time  an  application  may  be 
necessary  to  require  him  to  do  so.(s) 

See  where  attachment  refused  when  its  execution  might  be 
dangerous  to  the  life  of  the  party  in  default.  (^) 

Rule  2.  2.  No  writ  of  attachment  sliall  be  issued  without  the 
Not  to  leave  of  the  Covirt  or  a  Judge,  to  ])e  applied  for  on  notice 
"^^"*:  ^^  '^^^'   to  the  party  against  whom  the  attachment  is  to  be  issued. 

Ord.  41,  A  writ  of  attachment  no  longer  issues  as  of  course,  or  as  of 

R.  i,  E.        right  and  without  an  express  order  to  that  efiect  to  be  made 

by  the  court   or  a  judge.     Thus  upon  an  order  made  on  a 

solicitor  to  pay  costs,   no  attachment   can  issue  without  an 

express  order  in  that  behalf  made  on  notice  to  the  party  sought 

(5")  Lewer  i'.  Barnett,  L.  R.  G  Chau.  D.  252.  See  as  to  agent 
Hutchinson  V.  Ilartmont,  W.  N.  1877,  29;  as  a  promoter  and  director 
of  a  public  company  ;  Phosphate  Sewage  Company  v.  Hartmont,  AV.  N. 
1877,  1C7  V.  (.].  M.,  as  to  solicitor  getting  money  of  his  client;  In  re 
A.  &  B.,  solicitors,  W.  N.  1877.  207  M.  R. 

iqq)  Drewitt  v.  Edwards,  2G  W.  R.  GO,  Ex,  D.  S.  C.  122,  A.  C. 

(?•)  Rendall  v.  Gordner,  21  Sol.  Jour.  750,  Fry,  J. 

(7'r)  Republic  of  Costa  Rica  v.  Erlanger,  W.  N.,  1877,  GO,  21  Sol. 
Jour.  360  A.  C. ;  see  S.  C.  W.  N.,  1877,  4,  V.  C.  iM. ;  and  see  Clarke 
V.  Roche,  21  Sol.  Jour.  360,  A.  C. 

CO  See  Owen  v.  Pritciiard,  W.  N.,  187G,  147,  V.  C.  II. 

(0  CuUey  V.  Buttifaut,  W.  N.,  1875,  213,  V.  C.  H. 


ATTACHMENT   OF   DEBTS.  G47 

to  be  attacbed.(?0      Notice  takes  tlie  place  of  the  Rule  nisi,    Order  43. 
or  conditional  order. (w)     Service  of  notice  of  the  application 
on  the  solicitor  of  the  party  has  been  held  sufficient,  (w) 

Order  XLIV. 
Attachment  of  Debts.  0rder_44. 

1.  Where  a  judgment  is  for  tlie  recovery  by  or  pay-    Rule  i. 
meut  to  any  person  of  money,  the  party  entitled  to  en-  I'rehmm- 
force  it  may  apply  to  the  Court  or  a  Judge  for  an  order  amination 
that   the  judgment    debtor    be    orally    examined    as  to  of  defend- 
whether  any  and  what  debts  are  owing  to  him,  before  ^^^^^ 
an  officer  of  the  Court,  or  such  other  person  as  the  Court  owing  to 
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  docu- 
ments. 

The  Com.  Law  Pro.  (Ire.),  1856,  contained  no  provision 
enabling  plaintiff  to  examine  the  defendant  orallj'  similar 
to  the  above,  Avhich  in  this  respect  follows  the  English  Com. 
Law  Pro.  Act,  1854,  s.  60. 

2,  The  Court  or  a  Judge  may,  upon  the  ex  parte  appli-  q,^^^J'^J' 
cation  of  such  judgment  creditor,  either  before  or  after  such  attach 
oral   examination,  and  ui)on  affidavit  by   himself  or  his  debt  of 
solicitor  stating  that  judgment  has  been  recovered,  and  ^^^^  ^^ 
that  it  is  still  unsatisfied,  and  to  what  amount,  and  that  r.  2^  e! 
any  other  person  is  indebted  to  the  judgment  debtor,  and 

is  within  the  jurisdiction,  order  that  all  debts  owing  or 
accruing  from  such  third  person  (hereinafter  called  the 
garnishee)  to  the  judgment  debtor  shall  be  attached  to 
answer  the  judgment  debt ;  and  by  the  same  or  any  sub- 
sequent order  it  may  be  ordered  that  the  garnishee  shall 
appear  before  the  Court  or  a  Judge,  as  such  Court  or 
Judge  shall  appoint,  to  show  cause  why  he  should  not  pay 
the  judgment  creditor  the  debt  due  fi'om  him  to  the  judg- 
ment debtor,  or  so  much  thereof  as  may  be  sufficient  to 
satisfy  the  judgment  debt. 

Former  provisions  simihir  to  this  had  been  held  to  apply  only  ""^.^^f '".'"'■*' 
to  judgments  proper  of  the  Superior  Courts  and  not  to  mere 
orders," to  which  the  effect  of  a   judgment  had  been  given  by 

(m)  In  re  a  Solicitor,  L.  K.,  1  Chan.  D.  4-15,  24  W.  E.,  103  M.  R.  ; 
see  Garling  v.  Royds,  L.  R.,  1  Clian.  D.  81,  in  which  the  order  was 
perfected  before  the  J.  Act  came  into  force. 

(y)  Baigent  r.  Baigent,  L.  R,  1  Pro.  D.  431,  24  W.  R.  43  ;  see  hi 
re  Goods  of  Cartwright,  W.  N.,  1876,  21  Prob. 

(w)  Richardsj;.  Kitchen,  25  W.  R.  602,  V.  C.  B.,  W.  N.,  1877,  128 
V.  C.  B.  sed  vide  Anon.  W.  N.,  1870,  105,  20  Sol.  Jour.  241, 
Demnan,  J. 


G48 


ATTACHMENT    OF   DEBTS. 


Order  44. 


Tlie 
guniishee. 


Debts. 


Equitable 
debts. 


3  &  4  Yic,  c.  105,  s.  27. (g)  It  is  not  altogether  clear  wliether 
the  same  distinction  is  to  be  made  now,  since  orders  may  be 
enforced  in  the  same  manner  as  a  judgment  to  the  same  effect, 
Ord.  xli.,  R.  20. 

The  garnishee  must  be  resident  within  the  jurisdiction  of  the 
Court,  and  a  company  whose  head  office  is  in  London  with  an 
agent  in  Ireland  transacting  business  is  not  such. (A) 

A  debtor  to  one  of  several  defendants,  joint  debtors,  may  be 
made  garnishee. (i) 

If  defendant  be  a  corporation  aggregate,  plaintiff  does  not 
seem  to  be  warranted  in  calling  for  the  examination  of  a 
director  or  the  secretaiy  as  to  debts  due  to  the  company. (A) 

Nothing  can  be  attached  but  a  debt. 

Rent  due  by  a  tenant  to  his  landlord  was  attachable  less 
poor  rates  and  income  tax,(/)  and  the  proceeds  of  an  execution 
in  the  hailds  of  a  sheriff  for  a  debt  due  to  the  judgment  debtor 
in  the  principal  action.  (m>  As  to  money  in  the  hands  of  an 
assignee  in  Ijankruptcy,  dividends  payable  to  the  judgment 
debtor  see,(w)  in  hands  of  an  ollicial  liquidator  of  a  company.(rt) 
It  may  be  a  debt  in  prasenti  but  payable  in  futuru,{p)  and  it 
may  be  unascertained  in  its  exact  amount, (7)  but  a  mere  notice 
to  treat  for  defendant's  lands  by  a  public  company  under 
which  nothing  has  been  done  is  not  a  debt  owing  or  accruing,  (r) 

A  promissory  note  not  yet  due  is  not  a  debt  which  can  be 
attached  by  a  garnishee  order  to  answer  a  judgment  debt,(5) 
nor  is  a  sum  of  money  presented  by  a  Grand  Jury  in  favour  of 
the  defendant. (^) 

Formerly  the  debt  attachable  should  be  a  legal  debt,  such 
that  the  Court  might  .direct  the  liability  to  be  tried  by  an 
action. (m)     If  a  judgment  creditor  could  not  in  Equity  obtain 


{g)  Financial  Corporation  v.  Price,  L.  E.  4,  C.  P.  155.  Best  r. 
Pembroke,  L.  K.  8,  Q.  B.  :i63. 

(A)  Martvn  v.  Kelly,  Ir.  Pvcp.  5,  Com.  Law  404,  Ex. 

(i)  See  MUler  v.  Wynn,  1  El.  and  E.  1075. 

(/: )  See  Dickson  v.  Neath  Company,  L.  R.  4,  Ex.  87. 

'l)  Hall  V.  Pritchett,  26  W.  K.,  95  Q.  B.  D. ;  see  Anon.  W.  N., 
1876,  9. 

(m)  Leake  v.  Noble,  6  Ir.  Com.  Rep.,  510  Q.  B. ;  Jlitchell  v  Lee, 
L.  R.  2  Q.  B.  259. 

(«)  IMuiray  v.  Simpson,  8  Ir.  Com.  Law  Rep.,  App.  4a. 

(oj   Uawson  v.  INlalley,  Ir.  Rep.  1,  Com.  Law  207,  Ex. 

(/>)  See  Boyse  v.  Simpson,  8  Ir.  Com.  Law  Rep.  528,  Ex. 

(V)  Sparks";,-.  Younge,  8  Ir.  Com.  Law  Rep.  251,  Ex.;  Anon.  W.  N., 
1876-9,  20  Sol.  Jour.  178.  Daniel  v.  M'Cartliy,  7  Ir.  Com.  Law  liep. 
261,  Q.  B.;  and  see  Russell  v.  Ferguson,  Ir.  Rep.  2,  Com.  Law  78,  Ex. 

(r)  Richardson  ?;.  Elmit,  L.  R.  2,  C.  P.  D.  9. 

(.s)  Pyne  v.  Kinna,  Ir.  Kep.  11,  Com.   Law  40,  C.  P. 

(0  Cassin  V.  Shortall,  Ir.  Rep.  11  Com.  Law  157,  Q.  B.  See  Geraghty 
V   Sharkey,  2  Ir.  Jur.,  N.  S.  424. 

C«)  See  Bovse  v.  Simpson,  8  Ir.  Com.  Law  Rep.  523,  Ex.  per  Pigot, 
C.B. 


ATTACHMENT   OF   DEBTS.  649 

a  charge  on  an  equitable  debt  by  analogy  to  the  attachment  of    Order  44. 
a  legal  debt,  (re)  '  

Now  it  seems  there  is  no  distinction  between  a  legal  and  an 
equitable  debt  in  this  respect. (y) 

The  liability  of  the  garnishee  if  disputed  is  to  be  tried  by 
an  issue.     See  Rule  7,  infra. 

As  to  including  several  debts  in  one  order  due  by  several  Several 
persons  to  the  judgment  debtor.(/>)  debts. 

3.  Service  of  an  order  that  debts  due  or  accmiing  to  Kule  s. 
the  judgment  debtor  shall  be  attached,  or  notice  thereof '''ervice  of 
to  the  garnishee,  in  such  manner  as  the  Court  or  Judge 

shall  direct,  shall  bind  such  debts  in  his  hands.  -^^^  E. 

See  Cora.  Law  Pro.  (Ire.)  Act,  1856,  s.  64. 

The  plaintiff  becomes  a  creditor  holding  security  and  is  in  a 
position  resembling  that  of  an  execution  creditor  who  has 
seized,  and  his  right  cannot  be  defeated  by  the  subsequent 
bankruptcy  of  the  gamishee.(<2)  When  once  attached,  the 
garnishee  it  seems  cannot  affect  it  by  any  set-off  or  cross 
demand,  although  the  state  of  the  account  between  him  and 
the  judgment  debtor  may  and  ought  to  be  gone  into  as  regards 
the  particular  debt.(r) 

4.  If  the  garnishee  does  not  forthwith  pay  into  Court    Rule  4. 
the  amount  due  from  him  to  the  judgment  debtor,  or  Order  for 
an  amount  equal  to  the  judgment  debt,   and  does  not  pecution 
dispute  the  debt  due  or  claimed  to  be  due  from  him  to  puted 
the  judgment   debtor,  or    if   he  does  not  appear   upon  '''^*'^^- 
summons,   then  the  Court  or  Judge  may  order  execution  ^^^-  '^p 
to  issue,  and  it  may  issue  accordingly  without  any  previous 

writ  or  process,  to  levy  the  amovmt  due  from  such  gar- 
nishee, or  so  much  thereof  as  may  be  sufficient  to  satisfy 
the  judgment  debt. 

See  Com.  Law  Pro.  Act  (L-e.),  1856,  s.  65. 

5.  If  the  garnishee  disputes    his  liability,   the  Court     Rule  5. 
or  Judge,  instead  of  making  an  order  that  execution  shall  When 
issue,  may  order  that  any  issue  or  question  necessary  for  [1^     ,'A^ 
determining  his  liability  be  tried   or  determined  in  any  issue  to  ' 
manner  in  which  any   issue    or  question   in  an   action  ^'■'y- 
may  be  tried  or  determined.  O'd.  45, 

•^  R.  5,  E. 

See  Com.  Law  Pro.  Act  (Ire.),  1856,  s.  66,  which  speaks  of  a 
writ  of  scire  facias. 

(n)  Horsley  v.  Cox,  L.  R.  4,  Chan.  92.  See  Stevens  v.  Phelps,  L.  H. 
10  Chan.  423,  per  Mellish,  L.  J. 

(0)  See  Wilson  v.  Dundas,  W.  N.,  1875,  232;   20  Sol.  Jour.  09, 
•  Quaiu,  J. 

(jp)  Doherty  v.  M'Daid,  16  Ir.  Com.  Law  Rep.,  App.  22. 
(?)  See  Emmanuel  v.  Bridger,  L.  R.,  9  Q.  B.,  2SG. 
(?•;  Sampson  v.  Seaton  Ry.  Co.,  L.  R.  10  Q.  B.,  28. 

2  F 


GoO 


ATTACHMENT   OF   DEBTS. 


Order  44. 

Rule  6. 
"When  lien 
or  charge 
set  up. 

Ord.  45, 
K.  6,  E. 


Rule  7. 

Disposal 
of  lien  or 
charge. 

Ord.  45, 
R.  7. 


Rule  8. 

Payment 

discharges 

garnishee. 

Ord.  45, 
R.  8,  E. 


Rule  9. 
JMtach- 
iiient  book. 

Ord.  45, 
R.  y,  E. 


6.  Whenever  in  proceedings  to  obtain  an  attachment  of 
debts  it  is  suggested  by  the  garnisliee  that  the  debt  sought 
to  be  attached  belongs  to  some  third  person,  or  that 
any  third  person  has  a  lien  or  charge  upon  it,  the  Court 
or  Judge  may  order  such  third  ]:)erson  to  appear,  and 
state  the  nature  and  particulars  of  his  claim  upon  such 
debt. 

This  corresponds  with  the  English  Com.  Law  Pro.  Act,  1860, 
s.  29,  but  is  new  to  Ireland. 

Where  accruing  rents  were  transferred  by  way  of  mortgage 
with  the  estate  to  a  mortgagee  an  order  of  attachment  on  the 
rents  was  set  aside. (s) 

7.  After  hearing  the  allegations  of  such  thu-d  person 
under  such  order,  and  of  any  other  person  whom  by  the 
same  or  any  subsequent  order  the  Court  or  Judge  may 
order  to  appear,  or  in  case  of  such  third  person  not  appear- 
ing when  ordered,  the  Court  or  Judge  may  order  execution 
to  issue  to  levy  the  amount  due  from  such  garnishee,  or 
any  issvie  or  question  to  be  tried  or  determined  accord- 
ing to  the  preceding  Rules  of  this  Order,  and  may  bar  the 
claim  of  such  third  person,  or  make  such  other  order  as 
such  Court  or  Judge  shall  think  fit,  upon  such  terms, 
in  all  cases,  with  respect  to  the  lien  or  charge  (if  any) 
of  such  third  person,  and  to  costs,  as  the  Court  or  Judge 
shall  think  just  and  reasonable. 

This  corresponds  to  the  English  Com.  Law  Pro.  Act,  1860, 
s.  30,  E.     It  is  new  in  Ireland. 

8.  Payment  made  by  or  execution  levied  upon  the 
garnishee  under  any  such  proceeding  as  aforesaid  shall 
be  a  valid  discharge  to  him  as  agaiust  the  judgment 
debtor,  to  the  amount  paid  or  levied,  although  such 
proceeding  may  be  set  aside,  or  the  judgment  reversed. 

See  Com.  Law  Pro.  (Ire.)  Act,  1856,  s.  67,  Ord.  45,  R.  8,  E. 

Payment  into  Court  is  equivalent  to  payment  to  the  judg- 
ment'creditor,  so  far  as  discharging  the  garnishee,  and  the  sub- 
sequent execvition  of  a  composition  deed  by  debtor  does  not 
displace  the  judgment  creditor's  right. (0 

9.  There  shall  be  kept  by  the  proper  officer  a  debt 
attachment  book,  and  in  such  book  entries  shall  be  made 
of  the  attachment  and  proceedings  thereon,  with  names, 
dates,  and  statements  of  the  amount  recovered,  and  other- 
wise ;  and  copies   of  any   entries  made  therein  may  be 

(>)  Coilius    I'.   Thompson,  13   Ir.  Com,  T-aw  Rep.,  App.   51,   C.  P. 
sec  Swiney  v.  Euiiiskillen  and  Bundoran  Ry.  Co.,  Ir.  Rep.  2  Com.  Law, 
32S,  Q.  B. 

(/)  Culverhouse  v.  Wickens,  L.  E.,  3  C.  P.  2do  ;  and  see  TV  ood  v. 
Dunn,  L.  K.  2  Q.  B.  73,  Ex.  Cham. 


CHARGING  STOCK  AND   SHARES.  651 

taken  by  any   person   upon   application  to    the    proper    0rder44. 
officer. 

See  Com.  Law  Pro.  Act  (Ire.),  1856,  s.  68. 

10.  The  costs  of  any  application  for  an  attachment  of    i^i-^le  lo. 
debts  and  of  any  proceedings  arising  from  or  incidental  to  p,?ogeed- 
such  application,  shall  be  in  the  discretion  of  the  Court  or  ings. 
a  Judge.  Ord.  45, 

See  Com.  Law  Pro.  Act  (Ire.),  1856,  s.  69,  and  Waldron  v. 
Parrott.(M) 


Order  XLY. 
Charging  of  Stock  or  Shares  and  Distringas.  Order  45. 

1.  An  order  charging  stock  or  shares  may  be  made  by  Attaching 
any  Divisional  Coui-t,  or  by  a  Judge,  and  the  proceedings  ^|°'^'^°^„ 
shall  be  such  as  are  du^ected  by  3  &  4  Vic,  c.  105,  and  debtor. 
IG  tk  17  Vic.  ch.   113,  and  every  such  order  shall  have  Ord.  4g, 
the  same  effect  as  provided  by  those  statutes.  K-  ^'  ^^ 

See  3  &  4  Vic,  c.  105,  s.  23  ;  and  Com.  Law  Pro.  Act  (Ire.), 
1853,  s.  132,  which  seem  applicable  to  plain  cases  in  which 
stock  or  shares  stand  simply  in  the  name  of  the  debtor  or  bis 
trustee.  They  do  not  apply  to  funds  in  hands  of  an  executor  of  a 
deceased  debtor(y)  nor  of  a  trustee  or  other  person  not  the 
beneficial  owner  in  his  own  right. (w) 

Under  Pigot's  Act,  3  &  4  Vic,  c.  105,  s.  23  &  24,  the  creditor 
should  have  issued  execution,  but  under  the  Com.  Law  Pro. 
(Ire.)  Act,  s.  132,  an  order  attaching  might  be  made  without 
issue  of  an  execution  provided  the  plaintiff  was  in  a  condition 
to  issue  one.(x) 

Where  a  plaintiff's  bill  was  dismissed  with  costs  an  order 
7ttn  charging  railwav  shares  belonging  to  plaintiff  with  amount 
of  defendant's  coses  when  taxed  was  made  before  taxation. (y) 
But  in  a  later  case  it  was  held  that  where  the  specific  sum  due 
to  the  party  against  whom  the  charging  order  is  sought  in  any 
cause  or  matter  is  unascertained,  and  subject  to  an  account, 
and  his  costs  untaxed,  neither  can  be  charged(z) 

However,  when  the  amount  is  ascertained,  and  is  a  delitinn 
in  prcesenti  solve adum  infuturo  it  may  be  charged,  (a) 

(ju)  Waldron  v.  Parrott,  9  Ir.  Com.  Law  Rep.  17.5,  Ex. 

(v)   Wallace  v.  M'Caiin,  4  Ir.  Eq.  Rep.  522,  M.  R. 

(w)  Tn  re  Blakely  Ordnance  Co.,  W.  N.,1876,  290;  25  W.  R.  Ill, 
V.  C.  M. 

(x)  Fletcher  v.  Egan,  8  Ir.  Com.  Law  Rep.,  App.  5,  Q.  B. 

ly)  Burns  v.  Irving,  L.  R.  3  Chan.  D.  291 ;  24  W.  R.  QQ. 

(?)  Widgery  v.  Tepper,  L.  R.,  6  Chan.  D.  364,  A.  C;  Hodgen^  v. 
Ilodgens,  Ir.  Rep.,  1 1  Eq.  439,  V.  C. ;  see  contra  Burns  v.  Irving,  L.  R., 
4  De  Gex  and  J.,  38. 

(a)  Bagnall  v.  Carlton,  L.  R.,  6  Chan.  D.  130,  V.  C.  B. 

2  F  2 


652 


WRIT   OF   SEQUESTRATION. 


Order  45.        2.  Any  person  claiming  an   interest  in   Government 

RuLE^2.    stock,  transferable  at  tlie  Bank  of  Ireland,  may  sue  out 

Statutory     ^  statutory  iiaj  unction  in  the  same  manner  as  provided 

iujuuctiou.  by  the  Chancery  (Ireland)  Act,   1867,  svich  writ  to  issue 

out  of  the   office  of  the  High  Court,  whence  writs   of 

summons  issue. 

See  Chan.  (Ire.)  Act,  1867,  s.  171  &  l72;  see  on  this  In  re 
Locke,  W.  N.,  1877,  38,  V.  C.  M. 


Order  46. 

Rule  1. 

For  non- 
payment 
of  money 
into  Court 
or  other 
contempt. 

Orel.  47,  E. 


Application 
ot  proceeds. 


Order  XLYI. 
W7'it  of  Sequestration. 
1.  Where  any  person  is  by  any  judgment  directed  to 
pay  money  into  Court  or  to  do  any  other  act  in  a  limited 
time,  and  after  due  service  of  such  judgment  refuses  or 
neglects  to  obey  the  same  according  to  the  exigency 
thereof,  the  person  prosecuting  such  judgment  shall  at 
the  expiration  of  the  time  limited  for  the  perfoi-mance 
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  lieretofore  had,  and  the 
proceeds  of  such  seqiiesti-ation  may  be  dealt  with  in  the 
same  manner  as  the  proceeds  of  writs  of  sequestration 
have  heretofore  been  dealt  with  by  the  Court  of  Chancery. 

As  to  issue  of  a  writ  of  sequestration  in  lieu  of  an  attachment 
for  nonpayment  of  money  or  costs  to  another  person,  see  2  G.  O. 
16th  April,  1873,  R.  2,  Chancery. 

To  enforce  subpoena  for  costs,  ib.  Rule  5.  After  arrest  of  a  party 
for  disobedience  of  a  decree  or  order  to  do  a  certain  act,  see  ib. 
R.  6. 

There  was  an  essential  difference  between  a  sequestration  on 
mesne  process  and  one  to  compel  payment  of  money  under  a 
decree  or  order,  as  regards  the  application  of  the  moneys  levied 
by  the  sequestrators.  Under  the  latter  they  might  be  applied  to 
satisfy  the  demand  but  not  so  on  mesne  process,  Daniel's  Chan. 
Prac.  913,  5th  Ed. 

Under  mesne  process,  a  sale  was  not  directed  except  for 
payment  of  expenses  or  where  the  goods  were  perishable. 

As  sequestration  was  neither  in  form  nor  in  substance  an 
execution,  the  property  seized  was  regarded  as  in  custodia  legis, 
and  no  right  was  acrpiired  by  the  party  at  whose  instance  it 
was  issued, (c:)  and  where  the  proceeds  were  rents  and  profits 
of  land  a  prior  incumbrancer  might  have  a  preferable  claim  on 
the  fund.(a) 


(?)  S(e  r.urnc  v.  Kubiuson,  7  Ir.  Eq.  Rep.  l'J3,  /j«r  Blackburne,  M.  li. 

\,i)  lb.  p.  1««. 


WRIT   OF   SEQUESTRATION.  653 

2.  Any  person  entitled  to  issue  a  writ  of  sequestration    Order  46. 
binder  the  preceding  rule  shall,  before  issuing  same,  issue     rule  2. 
a  summons  to  approve  of  one  or  more  sequestrators,  and  Summons 
to  obtain  directions  as  to  his  or  their  security,  and  account-  *o  approve 
ing;  which  summons  shall,  in  actions  and  matters  assigned  trator. 

to  the  Chancery  Division,  be  issued  from  the  chambers  of 
the  Judge  to  whom  the  action  is  assigned,  and,  in  actions 
assigned  to  the  Queen's  Bench,  Common  Pleas,  or  Ex- 
chequer Divisions,  from  the  office  of  the  Master  of  the 
Division.  On  a  certificate  from  the  Chief  Clerk  or  the 
Master  of  the  Division,  as  the  case  may  be,  of  the  approval 
of  such  person  or  persons,  which  certificate  shall  not 
require  to  be  approved  or  signed  by  a  Judge,  the  writ 
may  issue  directed  to  such  person  or  persons. 

3.  One  sequestrator  only  shall  be  named  in  the  writ,     rule  3. 
unless  a  Judge  shall  otherwise  dii-ect.  One  only 

°  unless 

4.  Every   sequestrator   shall    enter   into    security   by  oi-jgrg^J^^ 
recognizance   or   otherwise  in   like  manner   as   receivers     ru^j;  4 
in  the  Court  of  Chancery  now   do,  or  as  a  Judge  shall  security 
direct,  and  the  amount  and  nature  of  such  security  shall  for  seques- 
be  directed,  and  the  sureties  approved  of  at  Chambers  or  *^'"^*^°''- 
by  the  JNIaster  as  the  case  may  be,  upon  the  summons 
mentioned  in   R.    2   of  this  order,   or  by  a  Judge.      A. 
sequestrator  shall  not  enter  upon  the   execution  of  the 

writ  until  he  has  obtained  a  memorandum  signed  by  the 
Chief  Clerk  or  the  Master,  as  the  case  may  be,  that  he 
has  didy  perfected  his  secvirity. 

5.  Every  sequestrator  shall  be  bound  to  account  at     rule  5. 
Chambers   in   the    Chancery    Division,    and   before    the  Account- 
Master  of  the  Division,  in  the  Queen's  Bench,  Common  ^^S- 
Pleas,  and  Exchequer  Divisions  as  shall  be  directed  iipon 

his  appointment,  or  at  any  time  by  a  Judge,  and  not  less 
than  once  in  each  year,  except  a  Judge  shall  otherwise 
dii'ect. 

6.  The  practice  now  in  force  in  the  Court  of  Chancery(a)     rule  g. 
as  to  receivers  and  sequestrators  shall,   subject   to  the  other 
preceding  rules,  apply  to  sequestrators  to  be  appointed  sequestra- 
under  this  order  in  any  Division. 

7.  All  certificates  and  memoranda  under  this   oi-der    Rule  7. 
shall  be  filed — in  the  Chancery  Division,  in  the   Record  riling 
and  Writ   Office  ;    and   in  the  other  Divisions,   in  the  certiflcates. 
office  of  the  Master, 

(a)  Sic.  in  Authorized  Rule. 


[     65i    ] 


Order  47. 


KULE  1. 

AVrit  of 
possession. 
Orel.  48, 
B.  1,  E. 

Rule  2. 
"Without 
order. 
Ord.  4S, 
E.  2,  E. 


Order  XLVTI. 
Writ  of  Possession. 

1.  A  judgment  that  a  party  do  recover  possession  of 
any  land  may  be  enforced  by  writ  of  possession  in  manner 
heretofore  used  in  actions  of  ejectment  in  the  Superior 
Courts  of  Common  Law. 

2.  Where  by  any  judgment  any  person  therein  named 
is  directed  to  deliver  up  possession  of  any  lands  to  some 
other  person,  the  person  prosecuting  such  judgment  shall, 
without  any  order  for  that  purpose,  be  entitled  to  sue  out 
a  writ  of  possession  on  filing  an  affidavit  showing  due 
service  of  such  judgment,  and  that  the  same  has  not  been 
obeyed. 


Order  48. 

Delivery 
of  other 
property. 
Ord.  49,  E. 


Order  49. 

Rule  ]. 

Actions 
not  abated 
by 

marriage, 
&c.,  where 
cause  of 
action 
continues. 
Ord.  50, 
R.  1,  E. 

Abatement. 


Order  XLYIII. 

Writ  of  Delivery. 
A  writ  for  delivery  of  any  property  other  than  land  or 
money  may  be  issued  and  enforced  in  the  manner  here- 
tofore in  use  in  actions  of  detinue  in  the  Superior  Courts 
of  Common  Law. 


What 
actions. 


Order  XLIX. 
Change  of  Parties  hy  Death,  d-c. 

1 .  An  action  shall  not  become  abated  by  reason  of  the 
marriage,  death,  or  bankruptcy  of  any  of  the  parties,  if 
the  cause  of  action  survive,  or  continue,  and  shall  not 
become  defective  by  the  assignment,  creation,  or  devolu- 
tion of  any  estate,  or  title  pendente  lite. 

What  was  called  the  abatement  of  an  action  or  suit,  by 
death,  marriage  or  bankruptcy,  had  already  been  abolished  at 
law  by  Com.  Law  Pro.  Act  (Ire.),  1853,  ss.  156,  161.  In 
Equity,  when  a  suit  became  abated  or  defective  by  death  or 
change  of  parties  it  might  be  continued  by  an  order  of  course 
made  on  the  mere  statement  of  counsel,  of  the  abatement  or 
change,  or  transmission  or  interest,  or  liability,  and  the  order 
obtained  ex  parte,  became  binding  on  new  or  surviving  parties 
after  service,  unless  steps  were  taken  by  them  to  discharge  it, 
see  Chan.  (Ire.)  Act,  1867,  s.  157.  This  is  substantially  the 
plan  of  the  present  order. 

A  suit  or  action  commenced  before  the  1st  January,  1878, 
is  not  within  the  provisions  of  this  order,  and  in  case  of  a 
change  of  parlies  occurring  it  must  be  revived  or  continued  in 
the  old  way.(Z')     After  judgment  if  any  death  or  other  change 

(/^)  Davey  v.  Whittaker,  W.  N.,  1876,  17,24  W.  R.  244,  V.  C.  JJ.  ; 
see  Crane  v.  Loftus,  24  W.  II.,  93  V.  C.  H. 


CHANGE   OF   PARTIES   BY  DEATH,  ETC.  655 

takes  place,  execution  is  to  be  had  under  Order  xli.,  "R.  1 9.    Order  49. 
As  to  the  cause  of  action  surviving,  see  the  rule  actio  personalis 
moritur  cumpersond  (387)  p.  326,  ante^  qualified  by  3  &  4  Vic, 
c.  105,  s.  31,  as  to  injuries  to  real  or  personal  propert}-,(c)  and 
by  Lord  Campbell's  Act,  9  &  10  Vic,  c.  93.((Z) 

2.  In  case  of  tlie  marriage,  death,  or  bankruptcy,  or    Rule  2. 
devolution  of  estate  by  operation  of  law,  of  any  party  to  Court 
an  action,  the   Court  or  a  Judge  may,  if  it   be  deemed  persons 
necessary  for  the  complete  settlement  of  all  the  questions  to  be 
involved  in  the  action,  order  that  the  husband,  personal  ^^^l^^""^^ 
i-epresentative,    assignee,  trustee,    or  other  successor  in  notice, 
interest,  if  any,  of  such  party  be  made  a  party  to  the  Ord.  so, 
action,  or  be  served  with  notice  thereof  in  such  manner  R-  2,  E. 
and  form  as  hereinafter  prescribed,  and  on  such  terms 
as  the  Court  or  Judge  shall  think  just,  and  shall  make 
such  order  for  the  disposal  of  the  action  as  may  be  just. 

At  law  in  case  of  marriage  of  a  female  plaintiff  or  defendant,  Marriage 
a  suggestion  of  the  fivct  was  necessary,  in  order  to  have  judg-  of  female, 
ment  and  execution  against  husband  as  well  as  wife  ;  execution 
mio-ht  issue  for  her  by  authority  of  her  husband  without  any 
proceeding,  and  the  authority  of  the  attorney  employed  by  her 
when  sole  continued  till  countermanded  by  her  husband,  Com. 
Law  Pro.  Act  (Ire),  1833,  s.  101,  see  Ferg.  204,  2nd  Ed. 
But  the  husband  could  not  be  joined  as  a  co-plaintiff  with  bis 
wife  without  his  express  consent  (e) 

In  equity,  on  the  marriage  of  a  female  plaintiff,  the  suit  should 
be  revived  by  husband  and  wife  jointly,  unless  it  was  con- 
versant about  her  separate  estate,  when  she  should  continue  to 
sue  by  some  next  friend. (/)  When  a  female  defendant  mar- 
ried, the  husband's  name  should  be  introduced  in  all  subsequent 
proceedings. 

Now,  in  case  of  marriage  of  a  female  plaintiff  or  defendant, 
where  It  Is  sought  to  afiect  her  husband  with  liability  or  to  Invest 
him  with  authority  to  carry  on  the  suit  In  his  name,  or  to  settle 
all  questions  involved  In  the  action,  an  order  to  continue  should 
be  applied  for.  If  the  wife  desires  to  carry  on  the  suit  In  her 
own  name,  she  must  provide  a  solvent  next  friend,  or  give 
security  for  costs. (g)  Where  the  suit  was  by  husband  and 
wife  suing  as  administratrix,  and  after  decree  the  husband  died, 
having  received  assets,  the  cause  was  revived  by  the  widow 
against  the  executors  of  the  husband. (A) 


(c)  See  Earl  of  Leitrim  v.  Maddi.son,  Ir.  Rep.  3  Com.  Law,  601,  C.  P.; 
Chamberlaine  v.  Urumgoole,  13  Ir.  Com.  Law  Rep.,  App.  1, 
Q.  B. 

id)  See  Bradshaw  v.  Lancashire  Ry,  Co.,  L.  R.,  10  C.  P.,  189; 
Osborn  v.  Gillett,  L.  R.,  8  Exch.,  88. 

(e)  Quillisan  v.  Quilligan,  Ir.  Rep.  4,  Eq.  463,  Prob. 

(/)  But  see  Griffin  v.  Morgan,  L.  R.  4  Chan.  351. 

(9)  See  Quilligan  v.  Quilligan,  ubi  supra. 

(h)  O'Hanlou  v.  Uathank,  Ir.  Rep.  10  Eq.  493  M.  R. 


G56 


CHANGE    OF   PARTIES   BY   DEATH,    ETC. 


Order  49.        On  the  death  of  a  sole  plaintiff  at  law,  his  legal  represcnta- 
Deatlis"        ^^^'®'  ^^  leave  of  the  Court,  might  file  a  suggestion,  and  pro- 
ceed  Com.  Law  Pro.  Act  dre.)  1853,  s.  157,  210.(0     After 
verdict,  see  s.  159,  160.(^A) 

In  equity,  the  executor  or  administrator  should  revive,  un- 
less plaintiff  sued  in  a  representative  capacity. (/) 
Death  of  sole  defendant,  see  Com.  Law  Pro.  Act. 


KuLE  3.         3-  I^^  ^^^^  *^^  ^^  assignment,  creation,  or  devolution  of 
On  assign-    any  estate  or  title  pendente  lite,  the  action  may  Ije  con- 
tinued by  or  against  the  person  to  or  upon  whom  such 
estate  or  title  has  come  or  devolved. 


ment, 
continu- 
ance of 
action. 
Ord.  50, 
R.  3,  E. 
As^ign- 
ment. 


Bankruptcy 
'if  plain- 
tiff. 


Both  at  law  and  in  equity  where  a  plaintiff  had  assigned  his 
interest  m  the  suit  after  decree  or  judgment,  his  assignee 
should  have  proceeded  by  writ  of  revivor. (m)  Now  where 
a  plaintiff  assigns  his  interest  to  trustees  before  decree,  it  is  an 
order  of  course  that  he  and  the  trustees  shall  continue  the 
action,  (ra)  but  as  to  what  is  assignable  see  note.(o) 

As  to  transfer  of  interest  in  defendants,  Town  Commissioners, 
&c.(p),  as  to  defendant's  interest  being  transmitted,  see  Chan. 
(Ire.)  Act,  1857,  ss.  158,  218,  221  ;  hke  at  law.  Com.  Law 
Pro.  Act,  1853;  after  verdict,  s.  159;  after  interlocutory 
judgment,  s.  160  ;  after  writ  of  error.  (^) 

As  to  death  of  one  of  several  plaintiffs  or  defendants  at 
law  a  suggestion  was  entered.  Com  Law  Pro.  Act  (Ire.), 
1853,  s.  156,  213,  214,  216.  In  equity  a  side  bar  rule  was 
entered  to  proceed  by  or  against  survivors,  if  the  right  survived 
to  them,  otherwise  a  representative  of  the  deceased  should  be 
made  a  party,  and  this  sometimes  was  ordered  to  stand  over 
where  the  surviving  plaintiff  had  no  interest.  See  Chan.  (Ire.) 
Act,  1867,  s.  154.  In  a  case  since  the  J.  Act,  where  one  of 
several  plaintiffs  died,  he  being  the  principal  party  and  his 
rights  not  surviving  to  the  others,  who  brought  the  action  to 
a  hearing,  without  making  his  personal  representative  a  party, 
on  ol)jection  taken,  the  cause  was  ordered  to  stand  over  on 
payment  of  costs  of  the  day.(r) 

As  to  bankruptcy  of  a  sole  plaintiff  in  an  action  at  law,  see 
Com.  Law  Pro.  Act  (Ire.),  1853,  s.  162.(s) 


(i)  See  Mahony  v.  Lewis,  G  Jr.  Com.  Law  Rep.  475,  Q.  B. 

(A)  See  Moore  v.  Browne,  8  Ir.  Com.  Law  Rep.  App.  25  Q.  B. 

(/)  See  Greene  v.  Greene,  Ir.  Rep.  5  Eq.  224. 

(^?n.)  Orr  v.  Cooper,  Ir.  Rep.  9,  Com.  Law  424,  Q.  B.  ;  see  Yibart  v. 
Yibart,  L.  R.  6,  Eq.  251 ;  Bibby  v.  Navjor,  L.  R.  17,  Eq.  14 ;  Ingham 
V.  Waskett,  L.  R.  11,  Eq.  283. 

(n)  Middleton  v.  Pollock,  W.  K,  1876,  250  M.  R. 

(o)  Paris  Skating  Rink  Co.,  25  W.  R.,  701  A.  C. 

(/*)  See  Attorney-General  v.  Barrett,  Ir.  Rep.  6,  Eq.  84,  L.C. 

(</)  See  M'Mahon  v.  Ellis,  12  Ir.  Com.  Law  Bep.  437,  C.  P. 

(r)  Lydall  v.  Martinson,  L.  R.  5,  Chan.  D.  780,  25  W.  R.  S66. 

(s)  See  Macnamara  v.  Lynch,  8  Ir.  Com.  Law  Rep.,  App.  2,  Q.  B. 


CHANGE   OF   PARTIES   BY   DEATH,   ETC.  657 

In  equity  it  rendered  the  suit  defective,  as  the  phiiutitT  Order  49, 
ceased  to  have  any  interest  in  it,  and  the  assignee  or  trustee 
might  continue  it  in  his  own  name  and  in  default  of  so  donig, 
the  defendant  might  move  to  dismiss  the  bill  for  want  of  pros- 
ecution— with  costs.  In  a  case  under  the  Judicature  the  order 
made  was  to  dismiss  the  bill  with  costs,  the  defendant  under- 
taking not  to  enforce  them  against  the  plaintiff  personally  but 
only  against  his  estate  in  bankruptcy.  (0  After  decree  a 
defendant  might  revive, (m)  where  bankruptcy  occuiTcd  after 
the  cause  was  set  down  for  hearing,  the  trustee  was  allowed  to 
proceed  in  the  name  of  the  bankrupt  on  giving  security  for 
costs.  (lO 

Where  a  plea  of  bankruptcy  of  the  plaintiff  in  an  action 
was  pleaded  and  allowed  and  costs  paid,  the  assignee  or  trus- 
tee electing  not  to  proceed  with  that  action  further,  was  not 
precluded  from  afterwards  commencing  a  fresh  action  for  the 
same  cause. (w) 

But  as  the  bankruptcy  of  the  plaintiff  causes  no  absolute 
abatement,  it  is  in  the  discretion  of  the  Court  to  allow  the 
action  to  proceed  without  making  the  assignees  parties  to  it 
(subject  to  the  right  of  the  defendant  to  apply  for  security  for 
co-ts),  and  in  one  case  an  application  to  stay  proceedings  on 
the  "round  of  plaintiff's  bankruptcy  was  refused  where  one  of 
the  two  trustees  in  bankruptcy  was  already  a  defendant  in  the 
suit,  and  the  other  was  willing  that  the  suit  should  proceed, 
though  objecting  to  incur  the  risk  of  taking  active  steps  in  the 
matter,  the  Court  only  requiring  that  the  latter  should  have 
notice  of  the  proceedings,  {w)  However,  the  Court  of  Appeal 
deemed  that  it  was  not  a  wise  exercise  of  the  discretion 
intnisted  to  the  Judge  to  permit  a  plaintiff  who  has  ceased  to 
have  any  interest  in  the  subject  matter  to  continue  the  proceed- 
ings where  the  trustees  might,  if  so  advised,  do  so  by  an  order 
of  course.(x) 

On  the  bankruptcy  of  a  sole  defendant  at  law,  he  might  plead  Bank- 
the  fact  in  bar  of  further   continuance. fy)     In  equity  plaintiff  rupty  of 
had  the  option  to  dismiss  his  bill  (but  with  costs  to  be  paid  by  defendant, 
him), (2:)   and  prove  his  demand  under  the  bankruptcy,  or  to 
proceed  making  the  assignees  parties  by  a  common  order. 

Where  a  defendant's  estate  went  into  liquidation  after 
plaintiff  was  entitled  to  move  for  judgment,  in  default  of  a, 
defence  in  a  Chancery  action  to  foreclose  a  mortgage,  it  was 


(0  See  Wright  v.  Swindon  Ry.  Co.,  L.  R.  4,  Chan.  D.  16-1,  M.  R. 

(m)  Thomas  v.  Buxton,  L.  R.  3,  Chan.  407. 

(y)  Anon,  W.  N.,  1875,  202,  20  Sol.  Jour.  57,  Lush.  J. 

(w)  Bennett  v.  Gamgee,  L.  R.  2,  Exch,  D.  11,  25  W.  R.  81,  S.  C. 
affirmed  VV.  N.,  1877,  20  A.  C. 

(w)  Jackson  v.  North  Eastern  Ry.  Cv.,  W.  N.   1877,  80  V.  C.  M., 

Ix)  S.  C,  L  R.,  5  Chan.  D.,  844  ;  25*  W.  R.  518;  21  Sol.  Jour.  498 
A.  C. ;  see  Eldridge  v.  Burgess,  W.  N.,  1878,  14,  Fry,  J. 

(y)  But  not  his  having  filed  a  petition  ;  see  Auou.  20  Sol.  Jour.  82, 
Lush,  J. 

(z)  See  Blackmore  v.  Smith,  I  Mac.  &  Gord.  80. 

2  F  3 


658 


CHANGE   OF   PARTIES   BY   DEATH,  ETC. 


Order  49. 


Accession 
of  a  new 
iutei-est. 


Abscondiii' 
plaiutiflf. 


Rule  4. 
Order  in 
case  of 
marriage, 
&c. 

Ord.  50, 
E.  4,  E. 


ordered  that  the  action  should  be  continued  against  the 
trustees  in  place  of  the  original  defendant. (a) 

After  a  defendant,  who  became  bankrupt,  suffering  judg- 
ment to  go  by  default,  on  the  application  of  his  trustee 
the  judgment  was  set  aside  on  payment  into  Court  of  the 
amount  of  debt  and  costs  with  liberty  to  defend  the  action  in 
the  name  of  the  defendant, (6)  the  bankruptcy  can  eSect  no 
change,  as  the  assignee  will  be  bound  by  the  proceeding,  but 
nevertheless  it  may  be  more  convenient  that  he  should  be 
added  and  an  order  of  this  nature  has  been  made.(c) 

Events  occurring  after  commencement  of  the  action  may 
cause  an  accession  of  a  new  title,  ei.  (jr.  the  birth  of  a  child, 
one  of  a  class  or  a  tenant  in  tail  in  remainder  may  require  an 
order  under  Rule  4,  to  bind  him  by  the  previous  pro- 
ceedings. 

Under  the  head  "  or  any  other  event "  where  a  plalntiffbeing 
a  trustee  and  executor  in  an  administration  suit  absconded, 
an  order  was  made  substituting  a  defendant  beneficially 
interested  as  plaintifr.(r/) 

4.  Where  by  reason  of  mari-iage,  death,  or  bank- 
ruptcy, or  any  otlier  event  occuriing  after  the  com- 
mencement of  an  action,  and  causing  a  change  or 
transmission  of  interest  or  liability,  or  by  reason  of  any 
person  interested  coming  into  existence  after  tlie  com- 
mencement of  the  action,  it  becomes  necessary  or 
desirable  that  any  person  not  already  a  party  to  the 
action  should  be  made  a  pai'ty  thereto,  or  that  any  person 
already  a  party  thereto  should  be  made  a  party  thereto  in 
another  capacity,  an  order  that  the  proceedings  in  the 
action  shall  be  carried  on  between  the  continuing  parties 
to  the  action,  and  svich  new  party  or  parties  may  be 
obtained  ex  parte  on  application  to  the  Coui-t  or  a  Judge, 
upon  an  allegation  of  such  change  or  transmission  of 
interest  or  liability,  or  of  such  person  interested  having 
come  into  existence. 

The  rule  does  not  say  on  whose  application  the  order  is  to 
be  made,  and  Avhat  steps  a  defendant  should  take  in  default  of 
plaintiff 's  proceeding.  Probably  the  defendant  may  move  to 
dismiss  the  action  for  want  of  prosecution,  in  the  case  of  the 
death  of  a  plaintiff,  and  serve  his  personal  representative,  or 
other  person  who  ought  to  proceed. (e) 


(o)  Walker  v.  BLickmore,  W.  N.  1876,  112  V.  C.  H.  ;  hut  see 
Campbell  ?;.  Im.  Thurn,  W.  N.  1875,  195;  20  Sol.  Jour.  3]  Lush,  J. 

{h)  Goddard  v.  Poole,  W.  N.  1875,  230  ;  20  Sol.  Jour.  98, 
Quaiii,  J. 

(c)  Kino  V.  Eudkin,  L.  R.,  G  Chan.  D.,  IGO;  21  Sol.  Jour.  689, 
Fry,  J. 

00  Johnson  V.  Kershaw,  20  Sol.  Jour.  332  V.  C.  11. 

((.-)  Wright  i;.  Swindon  Rv.  Cv.,  W.  N.  1876,  250,  M.  R..  S.  C.  255. 


CHANGE   OF  PARTIES   BY   DEATH,    ETC.  659 

It  is  presumed  no  evidence  will  be  necessary  as  to  the  facts.    Order  49. 
and  the  order  will  be  ma-ie  on  the  statejnent  of  counsel  at  tiie 
peril  of  its  being  set  aside  if  unfounded  in  fact,  or  irregular. 

5.  An  order  so  obtained  sliall,   unless  tlie  Court   or    Rule  5. 
Judge  sliall  other^sise  direct,  be  served  upon  the  con-  ^^^^[•^'^  °^ 
tinning  party  or  parties  to  tbe  action,  or  their  solicitors,  ,o  ^u^a 
and  also  upon  each  such  new  party,  unless  the   yevson  sub  luodo. 
making  the  application  be  himself  the  only  new  party,  Ord.  so, 
and  the  order  shall  from  the  time  of  such  service,  subject  ^'  ^'  ^' 
nevertheless  to  the  next  two  following  Ptules,  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. 

See  Chan.  (Ire.)  Act,  1867,  s.  157. 

See  as  to  allowing  an  order  of  revivor  to  be  made  unrasisted. 

(/) 

6.  Where  any  person  who  is  under  no  disability  or    kule  6. 
under  no  disability  other  than  coverture,  or  being  under  Discharg- 
any  disability  other  than  coverture,  but  having  a  guardian  ^"s  order. 
ad  litem  in  the  action,  shall  be  served  with  such  order,  ^^^  ^^i 
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  thereof. 

If  the  party  served  do  not  move  to  discharge  or  vary  the 
order,  the  action  will  proceed  from  the  point  where  it  was 
when  the  event  occurred  by  which  the  defect  was  occasioned, 
and  if  time  is  expiring,  or  has  expii-ed,  to  answer,  application 
should  be  made  to  extend  it.  (7) 

7.  Where  any  person  being  under  any  disability  other    Eule  7 
than  coverture,  and  not  having  had  a  guardian  ad  litem  Persons 
appointed  in  the  action,  is  served  with  any  such  order,  ^isabrnt)-, 
such  person  may  apply  to  the  Court  or  a  Judge  to  dis-  time  for. ' 
charge  or  vary  such  order  at  any  time  within  twelve  days  Ord.  50, 
from  the  appointment   of  a  guardian  or  guardians  ad  P^-  '^>  ^■ 
litem  for  such  party,   and  until   such  period  of  twelve 

days  shall  have  expired  such  order  shall  have  no  force 
or  effect  as  against  such  last-mentioned  person. 

As  to  how  far  proceedings  taken  before  such  an  order  affect 
persons  under  disability,  see  (h). 


(f)  Conollv  V.  Luscombe,  L.  R.,  3  H.  L.  C,  13'.t. 

(r/)  See  Harpur  r.  Redder,  20  Sol.  Jour.  l-i9,  Q.  B.  D.;  Earl 
Beauchamp  v.  VViun,  L.  R.,  2  Eq.,  302. 

(/t)  See  Capps  v.  Capps,  L.  R.,  4  Chan.  1  ;  Cuthbert  v.  Hornsby, 
L.  R.,  13  Eq.,  202. 


[     660     ] 


Order  50. 

Rule  1. 
Transfer  of 
action  by 
Lord 
Chancellor. 

Ord.  51, 
R.  1,  E. 


Rule  2. 
Chancery 
transfers 
for 

hearing 
only. 

Ord.  .51, 
R.  1(A),  E. 


Rule  3. 
Transfer 
by  order 
of  a  Judge, 

Ord.  51, 
R.  2,  E. 


Order  L. 
Transfers  and  Consolidation. 

1.  Any  action  oi'  actions  may  be  transferred  from  one 
division  to  another  of  the  High  Court,  or  from  one  Judge 
to  another  of  the  Chancery  Division,  by  an  order  of 
the  Lord  Chancellor,  provided  that  no  such  transfer  shall 
be  made  fi-om  or  to  any  division  without  the  consent  of 
the  President  of  the  Division. 

As  to  transfer  of  actions  from  one  division  of  the  High 
Court  to  another,  see  Chapter  XX.,  p.  176,  ante. 

In  the  Chancery  Division,  as  between  the  Judges  thereof, 
the  Lord  Chancellor  can  make  the  order,  as  to  transfer  of 
actions,  alone.     The  Court  of  Appeal  has  no  such  po\ver.(t) 

The  Lord  Chancellor  also  can  transfer  statutory  petitions. (A-) 

In  England  where  the  parties  consent  in  •vvi'iting  and  apply 
to  the  Secretary's  Office  of  the  Lord  Chancellor,  the  Lord 
Chancellor  makes  the  order  of  transfer.  Where  parties  do  not 
consent,  an  application  must  be  made  in  Court. (/) 

2.  In  the  Chancery  Division  a  transfer  of  a  cause  from 
one  Judge  to  another  may  by  the  same  or  a  separate  order 
be  ordered  to  be  made  or  to  be  deemed  to  have  been  made 
for  the  purpose  only  of  trial  or  of  hearing,  and  in  such 
case  the  original  and  any  further  hearing  shall  take  place 
before  the  J  udge  to  whom  the  cause  shall  be  so  trans- 
ferred ;  but  all  other  proceedings  thei-ein,  whether  before 
or  after  the  hearing  or  trial  of  the  cause,  shall  be  taken 
and  prosecuted  in  the  same  manner  as  if  such  cause  had 
not  been  transferred  from  the  Judge  to  whom  it  was 
assigned  at  the  time  of  transfer,  and  as  if  such  Judge  had 
made  the  decree  or  judgment,  if  any,  made  therein,  unless 
the  Judge  to  whom  the  cause  is  transferred  shall  direct 
that  any  further  proceedings  therein,  before  or  after  the 
hearing  or  trial  thereof,  shall  be  taken  and  prosecuted 
before  himself. 

This  rule  is  borrowed  from  one  introduced  into  England  by 
reason  of  the  lately  appointed  Judge,  Mr.  Justice  Fry,  having 
no  staff  for  chamber  business.  Its  j)urpose  here  may  possibly 
be  to  meet  a  simihir  exigency  in  regard  to  the  Land  Judges  of 
the  Chancery  Division. 

3.  Any  action  may,  at  any  stage,  be  transferred  from 
one  division  to  another  by  an  order  made  by  the  Court  or 
any  Judge  of  the  Division  to  which  the  action  is  assigned  : 

(«■)  Inre  Hutlev,  L.  R.,  1  Chan.  D.  11. 

{k)  In  re  Boyd's  Trust,  L.  K.,  1  Chan.  D.  41. 

CO  See  memorandum  in  L.  K.,  1  (Jhau.  D.  41,  24  W.  K.  19. 


TEANSFERS  AND   COXSOLIDATION.  661 

l^rovided  that  no  siicli  transfer  shall  be  made  mthout  the   Order  50. 
consent  of  the  President  of  the  Division  to  which  the 
action  iii  proposed  to  be  transferred. 

The  consent  of  the  President  of  the  Division  to  which  the 
action  is  proposed  to  be  transferred  is  a  condition  subsequent 
and  not  precedent  to  the  order  of  the  Judge. (tw) 

A  Judge  at  Chambers  of  any  Common  Law  Division  lias 
power  to  order  the  transfer  of  a  cause  belonging  to  any  of 
them  to  another  or  to  the  Chancery  Division,  (k) 

4.  "When  an  order  has  been  made  by  any  Judge  of  the    Kule  4. 
Chancery  Division  for  the  winding  u])  of  any  company  Transfer  by 
under  the  Companies  Acts,    1862  and  1869,  or  for  the  chaiicery 
administration  of  the  assets  of  any  testator  or  intestate,  Judge  of 
the  Judge  in  whose  Court  such  winding  up  or  adminis-  ^gi*Jj^f„ 
tration  shall  be  pending  shall  have  power,  without  any  to  assets  or 
further  consent,  to  order  the  transfer  to  svich  Judge  of  any  companies, 
action  pending  in  any  other  division  brought  or  continued  ^^']  ^^' 
by  or  against  such  company,  or  by  or  against  the  executor.s 

or  administrators  of  the  testator  or  intestate  whose  assets 
are  being  so  administered,  as  the  case  may  be. 

See  on  this  subject  Chapter  xxviii.  ('265),  p.  220,  ante. 
An  order  has  been  made  for  this  purpose  ex  parte,  subject  of 
course  to  be  discharged,  (o) 

5.  Any  action  transferi-ed  to  the  Chancery  Division    Rdle  5. 
shall,  by  the  order  directing  the  transfer,  be  directed  to  be  Transfer  to 
assigned  to  one  of  the  Judges  of  such  Division  to  be  named  ^/y"gjQy^ 
in  the  order.  ^^^  ^^^ 

R.  3,  E.' 

6.  Actions  in  any  division  or  divisions  may  be  consoli-    rule  e. 
dated  by  order  of  the  Couii;  or  a  Judge  in  the  manner  consou- 

heretofore  in  use  in  the  Superior  Courts  of  Common  Law.  dation  of 

actijii. 
See  2,  Ferg.  Prac.  1026.     Hemstead  v.  Phoenix  Gas  Com.,  ord  oi 
3  H.  &  C.  745.     Morley  v.  Midland  Pty.  Com.  3  F.  &  F.  961.  R.  i,  E.' 
Since  the  J.  Act,  the  Court  has  consolidated  an  action  of  debt 
and  an   action  for  recovery  of  land  brought  by  mortgngees 
against  mortgagor, (/j)  but  has  refused  to  do  so  in  case  of  an 
action  for  malicious  prosecution  with  another  for  amount  of 
salary  due  to  plaintiff.  ( (/) 

(m)  Humphreys  v.  Edwards,  W.  K.  1875,  208,  M.  R. ;  and  see  as  to 
giving  such  consent,  Barr  v.  Barr,  W.  N.,  1876,  44 ;  20  Sol.  Jour. 
272,  Prob. 

(«)    Hillman  v.  Mayhew,  L.  R.  1,  Ex.  D.  132,  24  W.  R.  435. 

(o)  Field  V.  Field,  W.  N.,  1877,  98,  V.  C,  M.  Whitaker  v.  Robinson, 
W.  N.,  1877,  201,  V.  C.  H. 

(/>)  Hambury  v.  Noone,  20  Sol.  Jour.  ICl,  Huddleetone,  B. 

Iq)  Anon.  20  Sol.  Jour.  101,  Quaiu  .J 


662  INTERLOCUTORY  ORDERS — INJUNCTIONS. 

Order  50.        Actions  against  different  underwriters  of  the  same  policy  of 
insurance  have  been  continually  consolidated. (r) 

Several  actions  arising  of  one  and  the  same  contract  and  sub- 
contracts, Instead  of  being  consolidated,  were  ordered  to  come 
on  together  the  evidence  in  each  to  be  used  in  all.(5) 


Order  51. 


Order  LI. 

Interlocutory   Orders  as   to  Injunctions  or  Interim 

Preservation  oj  Property. 


K.  I.E. 


Rule  1.  -[    'Wlien  by  any  contract  a  primd  facie  case  of  liability 

j^.flT.vf^'^  is  established,  and  there  is  alleo;ed  as  matter  of  defence 

custody  a  right  to  be  relieved    wholly   or  partially  from   such 

aud  pre-  liability,  the   Court  or  a  Judge  may  make  an  order  for 

scrvfltion  o  •/ 

of  pro-         the  preservation  or  interim  custody  of  the  subject-matter 
perty.  ^f  the  litigation,  or  may  order  that  the  amount  in  dispute 

Ord.  52 i       i^e  brought  into  Court  or  otherwise  secured. 

See  2  Daniel's  Chan.  Practice,  4th  edition  p.  1427,  and  Smith 
V.  Peters,  L.  R.,  20,  Eq.  511,  M.  R.,  per  Sir  Geo.  Jessel,  M.  R., 
as  to  the  large  powers  of  the  Court  of  Chancery  to  interpose 
by  way  of  interlocutory  order  ancillary  to  the  due  performance 
of  its  main  function  in  the  administration  of  justice  at  the 
hearing  of  the  cause(«)  Courts  of  Law  possessed  a  jurisdiction 
of  a  similar  character  in  the  action  of  Replevin(oa)  which  is 
still  recognised  as  being  competent  under  the  J.  Act.  See 
Schedule  A,  Part  ii,  Sec.  iv. 

As  to  relief  by  way  of  Mandamus  and  Injunction,  see 
Chapter  xxxvii,  p.  281  ;  and  as  to  Receiver,  see  Chapter 
xxxiv.  p.  295,  ante.  Where  a  mandatory  mjunction  was  claimed 
in  an  action  for  obstructing  ancient  lights,  and  the  amount  of 
damage  might  materially  influence  the  Court  in  granting  or 
refusing  the  injunction  it  was  considered  that  they  should  be 
first  ascertained  and  an  issue  was  directed  to  a  special  Jury(6) 
for  substantial  damage  must  be  proved. (c) 

See  as  to  an  injunction  against  a  suit  in  Ireland, (fZ)  injunc- 
tion to  restrain  a  married  woman  from  alienatmg  her  separate 
property  by  a  creditor  having  no  s])ecific  charge  refused,  (e) 

See  as  to  undertaking  to  pull  down  buildings  continued 
penrJente  lite.,  as  not  being  an  idle  form  but  enforced  notwith- 
standing large  expenditin'e.( /") 

(;•)  See  Eoxwell  v.  Webster,  4  De.  Gex,  Jo.  &  Sm.,  77,  Smitli  v. 
Whichard. 

(s)  See  Debenham  v.  Lacey,  24  W.  R.,  900 ;  20  Sol.  Jour.  703 
V.  C.  H.  See  Concha  v.  Marietta,  21  Sol.  Jour.  290,  A.  C,  Amos  v. 
Chadwick,  L.  R.,  4  Chan.  D.  869. 

(«)  See  also  Hagell  v.  Curric,  L.  R.,  2  Chan.  449. 

(a«)  See  Gibbons  v.  M'Evillv,  Ir.  Rep.,  1  Com.  Law.  453,  C.  P. 

(i)  See  Burrell  v.  Cartwriglit,  21  Sol.  Jour.  238,  V.  C.  H. 

(c)  Kino  V.  Rudkin,  L.  R.,  G  Chan.  D.  IGO. 

(d)  Eustace  v.  Lloyd,  W.  N.,  1876,  299;  25  W.  R.,  211,  V.  C.  B. 
(f)  National  Provincial  Bank   of  England   v.   Thomas,  24   W.  K., 

1013.  M.  W. 

if)  Twinbarrow  v.  Braid,  21  Sol.  Jour.  C88,  A.  C. 


DETENTION — SALE  AND  INSPECTION.  G63 

2.  It  shall  be  lawful  for  tlie  Court  or  a  Judge,  on  the    Order  51. 
application  of  any  party  to  any  action,  to  make  any  order     -rvle  2. 
for  the  sale,  by  any  person  or  persons  named  in  such  order,  order  for 
and  in  such  manner,  and  on  such  terms  as  to  the  Court  ^^^'^^^^^^ 
or  Judge  may  seem  desirable,   of  any  goods,  wares,   or  ^_^  ^^ ' 
merchandise   which  may  be  of  a   perishable  natu^re  or  n'  2,  e.' 
likely  to  injure  from  keeping,  or  which   for   any  other 

just  and  sufficient  reason  it  may  be  desii-able  to  have 
sold  at  once. 

It  may  be  questioned  how  far  the  Court  will  make  such  an 
order  for  sale  of  goods  at  the  instance  of  plaintiff  where  he  is 
in  actual  possession  of  them,  and  may  sell  if  he  chooses  with- 
out an  order.(g-) 

As  to  time  and  manner  of  applying,  see  Rule  4,  infra. 

3.  It   shall  be  lawful  for  the  Court  or  a  Judge,  upon     Elle.'?. 
the  application  of  any  party  to  an  action,  and  upon  such  Order  for 
terms  as  may    seem  just,    to  make  any   order   for   the  and^gaie" 
detention,   preservation,  or  inspection  of  any  property,  or  inspec- 
being  the  subject  of  such  action,  and  for  all  or   any  of  ^^°^- 
the  purposes  aforesaid  to  authorize  any  person  or  persons  ^^-  ^^' 
to  enter  upon  or  into  any  land  or  building  in  the  posses- 
sion of  any  party  to  such   action,  and  for  all  or  any  of 

the  purposes  aforesaid  to  authorize  any  samples  to  be 
taken,  or  any  observation  to  be  made  or  experiment  to 
be  tried,  which  may  seem  necessary  or  expedient  for 
the  purpose  of  obtaining  full  information  or  evidence. 

As  to  exercise  of  this  jurisdiction  of  Interim  detention  and 
preservation  of  property,  see  note. (A)  As  to  detention  and  pre; 
servation  of  money  it  must  be  the  property  of  the  applicant, 
and  not  of  the  opposite  side,  and  where  plaintiff  applied  that 
defendant  should  lodge  money  in  Court  before  judgment  was 
refused  (z) 

As  to  inspection  of  property,  the  Court  of  Chancery  made  Inspection 
orders  in  proper  cases,  ex.  gr.,  of  premises  mease  of  an  allega-  of  premises, 
tion  of  nuisance, (A)  of  obstruction  of  ancient  Ughts  and  of 
machinery  in  patent  suits,  where  the  object  clearly  was  bona 
fide  to  help  plaintiff  to  prove  his  case.(/)  An  order  to  break 
the  soil  for  purpose  of  inspection  was  deemed  premature  on 
motion.(?/i)  An  order  has  been  made  to  permit  a  certain 
person  to  enter  and  make  a  valuation  of  house  and  furniture, 
whore  there  was  a  contract  of  sale  on  those  terms. (w) 

(g)  See  Anon.  20  Sol.  Jour.,  100,  Quain,  J. 
iji)  Watts  V.  Watts,  24  W.  R.,  489  ;  20  S.^1.  Jour.,  431  Prob. 
QT)  Luscher  v.  Comptoir  d'Escompte  de  Paris,  W.  N.,   1875,200; 
20  Sol.  Jour  ,  31  Lush,  J. 

(/;)  Barlow  v.  Bartery,  W.  N.,  1870,  136,  V.  C.  S. 
(0  See  Batley  v.  Dymock,  L.  R.,  19  Eq.,  90. 
(m)  Ennor  v.'Barwdl,  1  De  Gex.,  F.  &  Jo.  529. 
(«)  Smith  V.  Peters,  L.  R.  20.  Eq.  511.  M.  R. 


6CA 


INTERLOCUTORY   ORDERS,    ETC. 


Order  51. 


Rule  4. 

Appli- 
cation, 
how  made. 

Ord.  52, 
E.  4,  E. 


Rule  5. 
Appli- 
cation 
under 
Rule!. 
Ord.  r,2, 
R.  5,  E. 

Rule  6. 
Claim  of 
lien. 

Ord.  52, 
R.  6,E. 


A  similar  jurisdiction  had  been  conferred  at  Common  Law 
by  Com.  Law  Pro.  Act  (Ire.),  1853,  s.  47.(0) 

Since  the  J.  Act,  the  Court  has  made  an  order  to  inspect  de- 
fendant's mine  and  the  working  of  it,  under  and  near  the 
plaintiff's  mine,  to  see  how  far  defendant  had  trespassed  on 
plaintiff 's  ground,  and  to  measure  the  coal  taken  away.ip) 

So  an  order  has  been  made  ex  parte,  for  some  person 
authorized  by  plaintiff  to  inspect  defendant's  premises,  where 
an  injuction  was  sought  to  restrain  his  selling  bottles  of  brandy, 
as  of  the  plaintiff,  and  for  delivery  of  all  such  as  were  on  the 
premises.(5) 

The  Court  refused  in  an  action  for  obstructing  ancient  lights 
an  order  to  inspect  plaintiff's  premises  at  the  instance  of  a  de- 
fendant, before  the  nature  of  his  defence  had  been  disclosed. (r) 

Applications  of  this  nature  are  seldom  granted  ex  parte. (s) 

In  an  action  to  restrain  defendant  from  infringing  plaintiff  's 
patent,  where  defendant  denied  the  validity  of  the  patent  and 
plaintiff  sought  an  inspection  of  the  defendant's  process  of 
manufactures,  which  was  resisted  as  calculated  to  disclose 
trade  secrets  to  a  rival  manufacturer,  the  Court  ordered  an 
inspection  by  two  skilled  witnesses,  nominated  one  by  each  side, 
and  bound  in  honour  not  to  disclose  trade  secrets.  (^) 

4.  An  application  for  an  order  under  section  28,  sub- 
section 8,  of  the  Act,  or  under  Rules  2  or  3  of  this 
Order,  may  be  made  to  the  Court  or  a  Judge  by  any 
party.  If  the  application  be  by  the  plaintiff  for  an  order 
under  the  said  subsection  8  it  may  be  made  either 
ex  parte  or  with  notice,  and  if  for  an  order  under  the  said 
Kules  2  or  3  of  this  Order  it  may  be  made  after  notice 
to  the  defendant  at  any  time  after  the  issue  of  the  writ  of 
summons,  and  if  it  be  by  any  other  party,  then  on  notice 
to  tlie  plaintiff",  and  at  any  time  after  appearance  by  the 
party  making  the  application. 

.5.  An  application  for  an  Order  under  Rule  1  may  be 
made  by  the  plaintiff"  at  any  time  after  his  right  thereto 
appears  from  the  pleadings  ;  or,  if  there  be  no  pleadings, 
sic.  is  made  to  appear  by  affidavit  or  otherwise  to  the  satis- 
faction of  the  Court  or  a  Judge. 

G.  Where  an  action  is  brought  to  recover,  or  a  defen- 
dant in  his  statement  of  defence  seeks  by  way  of  counter- 
claim to  recover  specific  property  other  than  land,  and 

(o)  See  Boilan  v.  Dublin  and  Belfast  Ry.  Co.,  7  Ir.  Jour.,  382  Ex.; 
Bennett  v.  Griffiths,  3  E!.  &  EL,  467. 

{p)  Cooper  V.  Ince  Hall  Co.,  W.  N.,  187G,  24;  20  Sol.  Jour.,  241, 
Lindley,  J. 

iq)  Ilennessy  v.  Bohraann,- W.  N.,  1877,  14,  V.  C.  M. 

00  Anon.  W.  N.,  1876,  .53,  Archibald,  J. 

(.f)    See  Anon.  20  Sol.  Jour.  101,  Qiiain,  J. 

{t)  Flower  V.  Lloyd,  20  Sol.  Jour.  703,  A.  C. 


MOTIONS    AND    OTHER   APPLICxVTIONS. 


GG5 


tlie  party  from  wliom  sucli  recovery  is  sought  does  not  Order  51. 
dispute  the  title  of  the  party  seeking  to  recover  the  same, 
but  chiims  to  retain  the  property  by  virtue  of  a  lien  or 
otherwise  as  seciirity  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  plead- 
ings, by  affidavit  or  otherwise  to  the  satisfaction  of  such 
Court  or  Judge,  order  that  the  party  claiming  to  recover 
the  property  be  at  liberty  to  pay  into  Court,  to  abide  the 
event  of  the  action,  the  amount  of  money  in  respect  of 
which  the  lien  or  security  is  claimed,  and  such  further 
sum  (if  any)  for  interest  and  costs  as  such  Court  or 
Judge  may  dii'ect,  and  that  upon  such  payment  into 
Court  being  made,  the  property  claimed  be  given  up  to 
the  party  claiming  it. 

A  motion  made  by  plaintiff  for  delivery  of  a  ship  over  which 
defendant  claimed  a  lien  was  refused  as  being  equivalent  to  a 
final  judgment,  in  detinue,  and  not  to  be  granted  on  interlocu 
tory  motion.(M) 


Order  LII. 
Motions  and  other  AjJpUcations. 

1.  Where  by  these  Rules  any  application  is  authorized 
to  be  made  to  the  Court  or  a  Jxidge  in  an  action,  such 
application,  if  made  to  a  Divisional  Court  or  to  a  Judge 
in  Court,  shall  be  made  by  motion. 

2.  Except  where  by  the  practice  existing  at  the  time 
of  the  passing  of  the  Act  any  order  or  rule  has  heretofore 
been  made  ex  parte  absolute  in  the  first  instance,  and 
except  where  by  these  Rules  it  is  otherwise  provided,  and 
except  where  the  motion  is  for  a  rule  to  show  cause  only, 
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  Coux't  or  Judge  may  think  just ;  and  any 
party  affected  by  such  order  may  move  to  set  it  aside. 

Conditional  orders  and  orders  to  show  cause  or  nisi,  are 
virtually  aboHshed,  except  so  far  as  any  special  order  or  rule 
expressly  provides  to  the  contrary, (r)  i.e.  in  aU  actions  ;  but 

(m)  Siiltaa  of  Turkey  v.  Union  Bank  of  London,  W.  N.,  1877,  79, 
M.  K. 

(y)  /n  re  Baigent,  24  W.  R.  43,  Prob. 


Order  52. 

Rule  1. 
Apijli- 
cation?, 
when  by 
motion, 
Ord.  53, 
R.  1,  E. 

Rule  2. 

Notice  of 
motion  to 
be  given 
except  in 
certain 
cases. 
Ord.  53, 
R.  3,  E. 


GG6 


MOTIONS  AND   OTHER  APPLICATIONS. 


Order  52. 


Kile  3. 
Interval 
of  time  in 
notice. 
(»rd.  53, 
II.  4,  E, 

Service. 


KULE  4. 

Oi-d.  53, 
K.  5,  E. 

Court  may 
require 
furtlier 
notice. 


KUEE  5. 

Adjourn- 
ment. 
Oril.  53, 
It.  G,  E. 


KULE  6. 

8i  rvice  of 
notice 
without 
leave. 

Ord.  53, 
K.  7,  E. 


an  application  to  enforce  an  award  in  the  matter  of  an  arbitra- 
tion is  not  an  action(w)  so  an  application  to  assign  an  adminis- 
trative bond.(,T) 

3.  Unless  tlie  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. 

See  194  G.  O.,  27th  March,  1843,  Chancery. 

As  to  service,  personal  sei-vice  is  good  without  leave,  on  a 
defendant  who  has  not  appe.ared.(?/)  But  when  the  motion 
is  for  judgment,  service  may  be  made  by  filing  it  with  the 
ofiicer.C^) 

Where  the  application  is  for  an  attachment,  the  notice  should 
be  served  personally,  unless  the  Court  shall  otherwise  order. 
Com.  Law,     Vide  ante,  Ord,  xliii.  R.     p.  646  ajite. 

4.  If  on  the  hearing  of  a  motion  or  other  application 
the  Court  or  Judge  shall  be  of  opinion  that  any  person  to 
whom  notice  has  not  been  given  ought  to  have  or  to  have 
had  such  notice,  the  Court  or  Judge  may  either  dismiss 
the  motion  or  application,  or  adjourn  the  hearing  thereof, 
in  order  that  such  notice  may  be  given,  upon  such  terms, 
if  any,  as  the  Court  or  Judge  may  think  fit  to  impose. 

5.  The  hearing  of  any  motion  or  application  may  from 
time  to  time  be  adjourned  upon  such  terms,  if  any,  as  the 
Court  or  Judge  shall  think  fit. 

If  the  party  serving  notice  of  motion  does  not  appear  to  move 
it,  the  Court  may  order  him  to  pay  the  opposite  party  or  his 
attorney,  if  he  appears,  the  costs  of  appearing  to  oppose  it,(6') 
but  where  the  notice  was  wholly  invalid  ex.  gr.  to  appear  on  a 
day  on  which  the  Court  could  not  sit,  or  on  a  day  earlier  than 
the  date  of  the  notice,  the  Court  has  in  England  refused  to 
give  costs. (6) 

6.  The  jDlaintifi"  shall,  without  any  special  leave,  be  at 
liberty  to  serve  any  notice  of  motion  or  other  notice,  or 
any  petition  or  summons  ujjon  any  defendant,  who, 
liaAdng  been  dnly  served  with  a  writ  of  summons  to  ap- 
pear in  the  action,  has  not  appeared  within  the  time 
limited  for  that  purpose. 

(w)  In  re  Arbitration  between  Robert  Phillips  and  others,  L.  K., 
1  Q.  B.  D.  78,  24  W.  R.  158,  20  Sol.  Jour.  132. 

(jc)  In  re  Goods  of  Cartwright,  24  W.  R.  214,  Prob. 

0/)  Saunders  v.  Miller,  24  W.  R.  392. 

(z)  D3'mond  v.  Croft,  24  W.  11.  700,  M.  R. 

(a)  Berry  v.  Exchange  Trading  Company,  L.  R.  1  Q.  B.  D.  77,  24 
W.  R.  318. 

(6)  Daubney  v.  Shuttlewortb,  L.  R.  1  Ex.  D.  53;  24  \Y.  R.  321, 
C.  P.  D. 


SITTINGS  AT   CHA^^klBERS.  C67 

7.  The  plaintiff  may,  by  leave  of  the  Comi:  or  a  Judge   0rder_52. 
to  be  obtained  ex  ixvrte,  serve  any  notice  of  motion  iipon     rule  7. 
any  defendant  along  with  the  writ  of  summons,  or  at  any  Before  time 
time  after  service  of  the  writ  of  summons  and  before  the  J^^ee  ^ith^' 
time  limited  for  the  appearance  of  such  defendant.  leave. 

Ord.  53, 
R.  8,  E. 


Order  LI  II. 
Sittings  at  Chambers.  Order53. 

1.  The  Judges  of  the  Chancery  Division,  and  a  judge    .^y^^J^/^ 
of  each   of  the    Queen's   Bench,    Common    Pleas    and  ^^ted"'  ^ 
Exchequer  Di^-isions  shall  sit  at  Chambers  as  often  as  times, 
they   shall    respectively  deem  necessary  for  the  despatch 

of  the  Chamber  business  of  theii'  respective  courts,  and 
the  times  at  and  during  which  they  shall  respectively 
so  sit  shall  be  from  time  to  time  fixed  by  them  respec- 
tively. 

As  to  attendance  of  counsel  at  Chambers,  in  Englandthe 
Master  of  the  Rolls  stated  that  except  in  applications  for  time, 
in  which  counsel  could  not  be  allowed  to  appear,  it  was  of 
course  to  allow  them,  and  it  was  not  necessary  in  his  Chambers 
to  have  any  express  allowance.  In  the  Chambers  of  the  V.  C. 
of  Ireland  it  is(c)  stated  only  one  counsel  would  be  heard,  but 
application  might  be  made  to  adjourn  the  case  into  Court.(f/) 

2.  The  following  applications,  in  addition  to  such  as    ^^^le  2. 
by  the  Act  or  these  orders  are  authorized  to  be  made  at  g^^^fo^g 
Chambers,  may  be  made  at  Chambers  unless  the  Court  proper  for 
or  a  Judge  shall  direct  any  particular  application  to  be  g^^g^^'j^j? 
made  in  Court,  viz. : — 

(1.)  To  extend  the  time  for  the  delivery  of  any  plead- 
ing, or  for  the  taking  of  any  other  proceeding  in  an 
action. 

(2.)  For  ordei'S  for  accounts  under  Order  XI Y. 

(3.)  For  a  statement  of  the  names  of  the  persons  who 
are  co-partners  in  any  firm  under  Order  XY.  Eule  10. 

(4.)  To  determine  the  sufficiency  of  an  affidavit  under 
Order  XXXI.     E.  8. 

(.5.)  For  an  order  requiring  a  party  to  answer  or  to 
answer  further  under  Order  XXXI.     R.  9. 

(6.)  For  production  of  docu.ments  under  Order  XXXI. 
R.  10. 

(7.)  For  discover}' of  documents  under  Order  XXXI. 

R.  11. 

(c)  See  Webb  v.  Fitzgerald,  W.  N.  1875 ;  244  M.  R. 
(c^)  Roseingrave  v.  Burke  Ir.  Rep  7  Eq.  186  V   C 


068 


SITTINGS  AT   CHAMBERS. 


Order  53.  (g.)  For  inspection  of  documents  under  Order  XXXI, 
Eules  ]6&  17. 

(9.)  For  directions  as  to  the  mode  of  trial  under  Order 
XXXY.     E.  3. 

(10.)  For,  or  in  respect  of,  security  for  costs. 

(11.)  For  the  appointment  of  guardians  ad  litem  of 
infants,  or  persons  of  unsound  mind. 

(12.)  For  the  appointment  of  a  special  guardian  for  the 
purpose  of  concurring  in  a  special  case. 

(13.)  To  appoint  commissioners  to  take  the  separate 
examination  of  a  married  woman  for  any  purpose  arising 
in  an  action  or  matter. 

(14.)  Under  the  Interpleader  Act,  9  &  10  Vic,  c.  74. 

(15.)  For  the  appointment  of  an  arbitrator  or  umpire 
under  the  Common  Law  Procedure  Amendment  Act 
(Ireland),  1856,  sec.  15. 


Chancery 
Division. 


Also  in  the  Charicery  Division. 

(16.)  To  stay  concurrent  suit  wlien  the  decree  or 
order  is  in  prosecution  at  Chambers. 

(17.)  For  liberty  to  invest,  or  to  change  tlae  invest- 
ment of  money  under  the  control  of  the  Coui-t,  or  to 
approve  of  the  investment  of  money  in  purchase  or 
mortgage. 

(18.)  For  directions  to  executors  or  trustees  as  to  the 
management  of  property. 

(19.)  For  the  appointment  of  a  guardian  for  the  pur- 
poses of  the  Leases  and  Sales  of  Settled  Estates  Act. 

(20.)  For  directions  as  to  applications  to  the  Court, 
or  as  to  consenting  to  such  applications,  under  the  last- 
mentioned  Act. 

(21.)  For  directions  for  any  other  purpose  under  the 
last-mentioned  Act. 

(22.)  By  vendor  or  piirchaser  of  real  or  leasehold  estate 
under  the  37  &  38  Vic,  c.  78,  sec.  9. 

(23.)  For  the  appointment  of  guardians  of  the  persons 
or  fortunes  of  infants. 

(24.)  For  du'ectionsor  orders  as  to  the  care,  mainten- 
ance, or  advancement  of  infants  being  wards  of  Court, 
or  as  to  the  management  of  their  property,  whether 
under  the  general  jurisdiction  of  the  Court  or  under  any 
statute  specially  authorizing  the  same. 

(25.)  For  payment  of  the  dividends  of  any  stocks 
or  funds  standing  to  the  separate  credit  of  any  person  or 
persons. 

(26.)  For  the  payment  or  transfer  of  any  stocks  or 
moneys  standing  to  the  separate  credit  of  any  person  or 


A 


SITTINGS   AT   CHAMBERS.  6G9 

pei-sous  to  the  person  or  persons  to  whose  credit  same   Order  53. 
shall   stand,  or  to  the  personal  representatives  of  such 
person  or  persons. 

(27.)  Under  the  Trustee  Relief  Act,  in  all  cases  where 
the  trust  fund  does  not  exceed  £300  cash  or  £300 
stock. 

(28.)  Under  the  Trustee  Acts  in  all  cases  where  any 
judgment,  decree,  or  order  has  been  made  for  the  sale  or 
conveyance  of  lands,  tenements,  or  hereditaments  of 
any  tenure  or  of  any  estate  or  interest  therein. 

(29.)  To  appoint  new  Trustees  of  Charities. 

(30.)  All  such  other  applications  as,  according  to  the 
practice  of  the  Court  of  Chancery  heretofore,  have  been 
properly  made  at  Chambers. 

Also  in  Queen's  Bench,  Common  Fleas,  and  Exchequer 
Divisions. 

(31.)  To  make  a  consent  a  rule  of  Court.  For  Com- 

(32.)  To  substitute  service  of  any  process  or  to  have  ]Si°viskm'' 
service  deemed  good,  or  to  serve  out  of  the  jurisdiction. 

(33.)  By  a  person  not  named  in  a  writ  of  summons  for 
recovery  of  land,  for  liberty  to  defend. 

(Si.)  To  examine  a  witness  by  commission  or  on  inter- 
rogatories. 

(35.)  Under  Order  XLIV.  for  a  Garnishee  Order,  or 
an  order  to  pay,  or  other  application  in  refei-ence  thereto. 

(36.)  Motions  under  the  Bills  of  Exchange  Act. 

(37.)  For  an  order  to  revive  a  judgment. 

3.  When  any  application,  which  by  the  Act  or  by  this     Rule  3. 
order  or  any  of  the  foregoing  orders  is  authorized  to  be  Additional 
made  at  Chambers,  shall  be  made  in  Court,  any  additional  ''°'^*,*  °5  • 
costs  occasioned  thereby  shall  be  borne  and  paid  by  the  Court  dis" 
party  making  same,  unless  the  Court  or  a  Judo-e  shall  ^^^^^^ed. 
otherwise  order. 

4.  In  addition  to  the  foregoing  applications  the  Court   TEule  4. 

may,  subject  to  these  orders,  in  any  case  direct  that  any  Court  may 

business  shall  be  disposed  of  at  Chambers  which  such  bustae^T''^*^ 

Court  shall  think  may  be  more  conveniently  disposed  of  disposed  of 

at  Chambers  than  in  open  Court.  ^^  Cham- 

^  bers. 

See  Chan.  (Ire.)  Act,  1867,  s.  133  and  135,  as  to  powers  of 
Chancery  Judges  to  adjourn  matters  for  consideration  in 
chambers. 

It  was  declared  to  be  contrary  to  the  practice  of  the  Court 
of  Chancery  to  hear  causes  or  even  to  grant  an  injunction  e.  sr. 
restraining  the  publication  of  letters,  in  private,  without  tlie 
consent  of  both  parties,  except  in  cases  which  concern  lunatics 


070 


SITTINGS   AT   CHAMBERS, 


Order  53. 


KULE  5. 

Cliancery 
practice 
as  to  sum- 
inous 
continued. 

Appeal 
from. 


Rule  G. 
Commou 
Law 

Chambers, 
practice 
as  to. 


Rur-E  7. 
Appeal 
within 
eiglit  days. 
Ord.  54, 
K.  6. 


or  -wards  of  court  or  perhaps  where  a  hearing  in  public  would 
defeat  the  whole  object  of  the  suit  or  matter,  or  cause  an  entire 
destruction  of  it.(e) 

5.  In  the  Clianceiy  Division  the  pi^actice  heretofore 
existing  in  the  Court  of  Chanceiy  as  to  the  issuing  and 
hearing  of  summonses,  and  the  conduct  of  business  at 
Chambers  shall,  subject  to  these  orders,  continue  to 
regulate  such  proceedings. 

In  England  the  practice  as  to  appealing  from  an  order  made 
by  a  judge  of  the  Chancery  Division  at  chambers  is  to  require 
the  party  to  ask  the  judge  for  a  certificate  that  the  case  has 
been  fully  argued,  and  that  he  does  not  require  it  to  be  re-argued, 
or  to  ask  for  an  adjournment  into  court.  If  the  judge  should 
refuse,  the  Court  of  Appeal  may  give  leave  to  enter  the  case 
for  hearing  on  appeal  as  a  matter  of  course.  (/) 

6.  In  the  Queen's  Bench,  Common  Pleas,  and  Ex- 
chequer Divisions,  the  following  shall  be  the  practice  at 
Chambers: — (a).  All  applications  at  Chambers  shall  be 
by  summons,  Avhen  notice  of  such  application  is  requii'ed, 
and  such  summonses  shall  issue  from  the  offices  of  such 
Divisions  respectively.  Such  summonses  may  be  in  the 
form  No.  2  in  Appendix  G,  -with  such  variations  as  the 
circumstances  of  the  case  may  require,  (b).  A  copy  of 
such  summons  shall  be  left  by  the  party  obtaining  such 
summons,  with  the  officer  wdio  shall  issue  same. 

(c.)  All  summonses  in  these  Di^-isions  shall  be  served 
two  clear  days  before  the  return  thereof. 

(d.)  Where  any  of  the  parties  summoned  to  attend  a 
Judge  at  Chambers,  fails  so  to  attend,  whether  upon  the 
return  of  the  summons,  or  at  any  time  appointed  for  the 
consideration  or  further  consideration  thereof,  the  Judge 
may  proceed  ex  parte  if  he  think  it  expedient  so  to  do. 

(e.)  No  further  summons  shall  be  necessary  for  any  ad- 
journment unless  the  Judge  shall  direct  the  same. 

(/.)  The  cost  of  counsel  attending  a  Judge  at  Cham- 
bers, whose  attendance  shall  have  been  taken  down  by 
the  proper  officer  shall  be  allowed,  unless  the  Judge  shall 
cei'tify  it  not  to  be  a  proper  case  for  counsel  to  attend. 

(g.)  The  Judge  at  Chambers  may  adjourn  into  Court 
any  a2:>plication  made  to  him  at  Chambers  which  he  shall 
deem  more  convenient  to  be  considered  in  Court. 

7.  In  the  Queen's  Bench,  Common  Pleas,  and  Exchequer 
Divisions  every  appeal  to  the  Court  from  any  decision  at 

(e)  Andrew  v.  Raeburn,  L.  R.  9,  Chan.  .'>22,  pei'  Lord  Cairns,  L.  C. 
{/)  Thomas  v.  Elsom,  25  W.  R.,  871,  W.  N.,  1877,  205  A.  C. 


NISI   PRIUS   SITTINGS   IN   DUBLIN.  G71 

cliair.bers  shall  be  by  motion,  and  shall  be  made  within   Order  53. 
eight  days  aftei*  the  decision  aj^pealed  against. 

See  Chapter  xvii.,  p.  155,  ante. 

The  notice  of  appeal  must  be  given  at  least  two  clear  days 
before  the  day  named  for  the  appeal,  and  so  as  that  it  can  be 
heard  within  eight  days  from  the  decision  appealed  from.(g-) 
The  analogous  rule  has  been  acted  on  very  strictly  in 
England,  (h) 

8.  A  jndge  sitting  at  Chambers  may,  if  from  the  circum-    '^^^^  ^■ 
stances  he  shall   so  think  fit,  hear  and  dispose   of  any  J"dge  may 
Chamber  application  in  an  action  assigned  to  any  other  from  othtr 
division.  Divisious. 


Order  LIV. 

Nisi  Prius  Sittings  in  Dublin.  Order  ^4. 

1.  The  Judges  of  the  Queen's  Bench,  Common  Pleas,     Kule  i. 
and  Exchequer    Divisions,    shall   arrange  among  them-  ^"^^^^jj^^J 
selves  for  the  trial  of  causes  and  questions,  or  issues  of  to  trials. 
fact,  which  are  to  be  tried  by  jury  in  Dublin. 


2.  The  Clerk  of  the  Rviles  of  the  Division  of  which 


Rule  i. 
Clerk  of 


the  Judge  presiding  in  any  Court  for  the  trial  of  causes  j^^j^^  "^ 
and  questions  or  issues   of   fact  in    Dublin,  shall  be    a  enter  fines, 
member,  shall  be  the  proper  oiEcer  to  make  entries  and  Appeals  as 
render  accounts  of  all  fines  or  penal  sums  imjoosed  by 
such  Court.      Appeals  against  such  fines  shall  be  heard 
by  the  Judges  of  such  Division,  or  some  or  one  of  them. 

3.  The  precepts  for  the  return  of  jurors  for  the  trial  in     i^^le  3. 
Dublin  of  issues  of  fact  shall  be  u.nder  the  hand  of  one  of  Precepts 
the  Judges  of  the  High  Court  of  Justice  and  shall  be       ■*"  "  *' 
directed  to  the  Sheriffs  of  the  county  and  county  of  the 
city  of  Dublin  respectively. 

The  precepts  shall  be  issued  at  least  fifteen  days  before  Fifteen 
the  earliest  day  which   shall  be  named  therein  for  the  days^before 
attendance  of  jurors,  and  shall  command  the  said  sheriflfs,  jurors 
respectively,  to  summon   and   return   such  numbers  of  attendance, 
common    and    special  jurors,    respectively,  as    shall    be 
therein  mentioned,   to    attend  the   Courts  of  the  High 
Court  of  Justice  which,  during  such  respective  periods 
as  shall  be  therein  mentioned,  shall  be  held  for  the  trial 
of  issues    of  fact,   and  the  men  so   summoned  and  re-  Jurors 
turned  shall   (subject  to  all  just  challenges  and  objec-  toact'^*^ 

(y)  Fox  V.  Wallis,  L.  K.  2,  C.  P.  D.  45,  25  W.  R.  287,  A.  C. ;  and 
see  Dej'kiu  v,  Coleman,  25  W.  R.  294,  A.  C. 

(A)  Hallum  v.  Hill,  24  W.  R.,  956;  Crom  v.  Samuel,  L.  i;.  2,  C.  P. 
D.  21,  24  W.  R.  45,  21  Sol.  Jour.  29. 


672 


SECURITY   FOR   COSTS. 


Order  54.    tioiis),  be  qualified  and  liable  to  serve   vipon    all   siich 

common  juries  and  special  juries,  respectively,  as  shall 

be  empannelled  to  try  any  issue  or  issues  -which  may 

come  on  for  trial  before  the  High  Court,   or  any  Judge 

thereof,  during  the  period  for  which  such  jurors   shall 

Except  as    have   been    summoned    and    returned,    other   than    and 

to  special     gxcept  issvies  for  the  trial  of  which  a  special  jury  shall 

specially      have  been  ordered   to  be    struck  by  the   proper  officer 

struck         ^^j^jej.  the  34  &  35  Vic,  c.  66,  s.  33. 

under  old                                                            ' 
practice.  


Order  55. 

Amount 
to  be 
fixed  by 
Chief  Clerk 
or  Master. 
Ord.  5-5, 
R. Feb  , 
1870,  E. 


Order  LV. 

Secu7'iti/  for  Costs. 

In  any  cause  or  matter  in  which  security  for  costs  is 
required,  the  security  shall  be  of  such  amount,  and  be 
given  at  such  time  or  times,  and  in  such  manner  and 
form,  as  the  Chief  Clerk  in  actions  assigned  to  the 
Chancery  Division  and  the  Master  in  actions  assigned  to 
the  Queen's  Bench,  Common  Pleas,  and  Exchequer  Divi- 
sions, shall  direct. 

This  rule  assimilates  the  practice  in  all  divisions  to  that 
■which  prevailed  in  the  Common  Law  Courts,  requiring  a 
pLaintiff  out  of  the  jurisdiction  to  give  not  a  nominal  but  sub- 
stantial amount  of  security, («)  and  further  security  may  be 
demanded  as  the  suit  proceeds. (i)  But  the  rule  cannot  be 
extended  to  defendants  or  third  parties,  (c)  See  31  &  32 
Vic,  c  54,  Judgments  Extension  Act,  under  which  security 
for  costs  cannot  now  be  required  from  a  plaintiff  or  petitioner 
resident  in  Scotland  or  England  in  actions  at  law,(c/)  and  it 
would  seem  neither  in  actions  in  the  Chancery  Division  now, 
but  semble  as  to  matters  not  being  actioDs.(e) 


Order  LVI, 
Order  56.  Notices  and  Paper,  d'C. 

Rule  1.         1.  All    notices    required   by  these    Rules  .shall  be  in 

Notices  in  -syriting  or   'u\   print,  or   partly  in  writing  and  partly  in 

in'^prin^."'^  print,  unless  expressly  authorized  by  a  Court  or  Judge 

Ord.  56,  to  be  given  orally, 

K.  1,  E. 

(a)  Republic  of  Costa  Rica  v.  Erlanger,  L.  R.,  3  Chan.  D.,  62  ;  24 
W.  R.,  955,  A.  C.  overruling  S.  C,  24  W.  R.  880,  V.  C.  M. 

(6)  lb.  But  see  Raxtou  v.  Bell,  W.  N.,  187G,  221,  24  W.  R. 
1013. 

(c)  In  re  Percv  v.  Kelly,  Nickel  and  Iron  Co.,  L.  R.  2  Chan.  D. 
531,  24  W.  R.  1U57,  IM.  R. 

(rf)  Raehuni  v.  Andrews,  L.  R.,  9  Q.  B.,  110. 

(p)  //(  re  East  Llangyuog  Lead  Mining  Co.,  \V.  N.,  1875,  p.  81, 
M.  R. 


NOTICES   AND   PAPER,   &C.  673 

2.  All   pleadings,  affidavits,  orders,  accounts,  notices,   Order  re. 
and  other  documents  requii-ed  to  be  piinted,   or  partly    rlle  l'. 
written  and  partly  printed,  or  to  be  filed  in  any  of  tlie  Prints  on 
Offices  or  Chambers  of  the  Supreme  Court  of  Judicature  ^^1^'^' ..,, 
(Ireland),  other  than  Receivers  accounts,  snail  be  ^^Tltten  margin. 
or  printed  on  cream-wove  machine-drawing  foolscap  folio 

paper,  1 8  lbs.  per  mOl  ream,  with  an  inner  margin  three- 
quarters  of  an  inch  wide,  and  an  outer  margin  of  two 
inches  and  a  half  wide  ;  and  such  of  the  said  documents 
as  shall  be  printed  in,  whole  or  in  part  shall  be  so  printed 
in  pica  ty}5e  leaded.     Such  of  the  said  documents  as  shall  Manu- 
be  in  manuscript  shall  be  wi-itten  on  paper  of  the  like  ^'^"P* 
description,  and  shall   be  i-uled  with  twenty-seven  lines 
on  each  page,  and  the  complement  to  be  written  thereon 
shall  be  three  folios  of  seventy-two  words  in  each  page. 
And  for  the  piu'pose  of  all  attested  or  office  copies  of  any  Attested 
such  pleadings  or  documents,  the  paper  so  described  shall  copies. 
be  niled  in  like  manner  with  twenty-seven  lines  on  each  Ord.  56, 
page,  and  the  complement  to  be  wiitten  thereon  shall  be     '  ^'    ' 
three  folios  of  seventy-two  words  in  each  page. 

Even  though  an  action  be  undefended  a  statement  of  claim 
in  the  Chancery  Division  exceeding  10  folios  must  be  printed 
as  required  by  Ord.  xviii.,  Rule  2,  ante,  and  it  has  been  held 
that  this  order  does  not  allow  the  Judge  to  dispense  with  it.(f ) 

3.  Any  affidaxdt  may  be  sworn  to,  whether  it  be  in    Rule  3. 
print  or  in  manuscript,  or  partly  in  print  and  partly  in  Affidavits 

manuscript.  inprfnt^or 
— —  mami- 

OrberLVII.  ^"'p^- 

Time.  Order  57. 

1.  Where  by  these  Rules  or  by  any  judgment  or  order    Rlle  i. 
jriven  or  made  after  the  commencement  of  the  Act,  time  Months  to 
for  doing  any  act  or  taking  any  proceeding  is  limited  by  months, 
months,  not  expressed  to  be  lunar  months,  such  time  ord.  51, 
shall  be  computed  by  calendar  months.  K.  1,  E. 

See  253  G.  O.,  31  Oct.,  1867,  Chancery. 

2.  Where  any  limited  time  less  than  six  days  from  or    'Rvly.  2. 
after  any  date  or  event  is  appointed  or  allowed  for  doing  ^^y^  \^f^ 
any  act  or  taking  any  proceeding,  Sunday,  Christmas  Sunday,' 
Day,  and  Good  Friday,   shall  not   be  reckoned    in   the  &c.,  ex- 
computation  of  such  limited  time. 

See  254  G.  O.,  31  Oct.,    1867,  Chancery,  which  after  the  r^2,^E. 
words  "  Good  Friday  "  added,  "  and  other  days  on  which  the 
offices  are  closed." 

(/)  Attorney-General  v.  Moas,  21  Sol.  Jour.,  631,  Fry,  J. 

2g 


67-t  TIME. 

Order  57.  3.  Where  the  time  for  doing  any  act  or  taking  any 
Rule  0.  proceeding  expires  on  a  Sunday,  or  other  day  on  which 
When  la^t  the  offices  are  closed,  and  by  i-eason  thereof  such  act 
day  or  q^  proceeding  cannot  be  done  or  taken  on  that  day,  such 
act'ma^  be  ^^t  Or  proceeding  shall,  so  far  as  regards  the  time  of 
done  on  doing  or  taking  the  same,  be  held  to  be  duly  done  or 
next  day.  ^^^j^gj^  jf  Jone  or  taken  on  the  day  on  which  the  offices 
shall  next  be  open. 

See  as  to  appeal  from  Chambers.(^)  As  to  appeal  from 
Com't  of  Bankruptcv.(/0 

See  Com.  Law  Pro.  Act  (Ire.),  1853,  s.  232,  and  255  G.  O., 
31  Oct.,  1867,  Chancery.(i) 

See  232  G.  O.,  31  Oct.,  1867,  Chancery,  as  to  excluding  the 
first  day  ;  and  see  as  to  time  limited  by  Act  of  Parliament.(/f) 

Rule  4.         ^_  -^^  pleadings  shall  be  amended  or  delivered  in  the 
Vacation—  long  vacation,  unless  directed  by  a  Court  or  a  Judge. 

no  pleading 

to  be  5.  The  time  of  the  long  vacation  shall  not  be  reckoned 

Qrd^^\  '     ^^^   ^^^  computation  of  the  times  appointed  or  allowed 

K.  4,  E.        by  these  Rules  for  tiling,   amending,  or  delivering  any 

Rule  5.    pleading,  unless  otherwise  directed  by  a  Coui't  or  a  Judge. 

Long 

Vacation  See  258  G.  O.,  31  Oct.,  1867,  Chancery. 

not  Other  vacations  were  included  in  236  G.  O.,  31  Oct.,  1867, 

reclconed       Chancery. 

amend^fg"""      Com.  Law  Pro.  Act  (Ire.),  1853,  s.  192.(Z) 

pleadings, 

AC.  6.  A  Court  or  a  Judge  shall  have  jjower  to  enlarge  or 

E^*s  r'        abridge  the  time  appointed  by  these  Rules,  or  fixed  by 

Rule  6      ^^^J  oi'^er  enlarging  time,  for  doing  any  act  or  taking  any 

Time  proceeding,  upon  such  terms  (if  any)  as  the  justice  of  the 

*^brid?^d  °^  ^'^^^  may   require,   and    any  such   enlargement  may  be 

even  after    Ordered  although  the  apjjlication  for  the  same  is  not  made 

full  time       until  after  the  exinration  of  the  time  aijpointed  or  allowed, 
expired.  ^  ^  ^ 

Ord.  51,  See  250  G.  O.,  31  Oct.,  1867,  Chancery. 

■  ■'    ■  As  to  enlarging  time  to  appeal,  see  (ni)  Chap.  LVIII.,  K. 

iiifra,  to  set  aside  a  judgment  obtained  through  negligence  and 

omission  of  solicitor  not  communicated  to  client.(7i) 

(g)  Taylor  v.  Jones,  L.  R.,  1  C,  P.  D.,  87;  20  Sol.  Jour.,  92. 
CA)  hire  Gilbert,  L.  R.  4,  Chan.  D.,  794;  25  W.  R.,  364. 
(0  See  White  v.  Tyrrell,  5  Ir.  Com.  Law  Rep.  278,  C.  P. 
(^■)  Ammerman  v.  Digges,  12  Ir.  Com.  Law  Rep.  A  pp.  1,  Ex. 
(/)  See  M'Kennej'  v.  Reynolds,  6  Ir.  Com.  Law  Rep.  133,  Ex. 
(to)  Purnell  v.   Great  Western  Ry.  Cy.,  24  W.  R.,  720;  20  Sol. 
Jour.  58.),  A.  C. 

(»)  Michell  V.  Wilson,  25  W.  R.,  380. 


■[    675    ] 
Order  LVIII.  ^^^^^^^ 

Schedule  Rules. 

33.  All  appeals  to  the  Coui-t  of  Appealsliall  be  by  way  of  Appeals  by 
rehearing,  and  shall  be  brought  by  notice  of  motion  in  a  way  of 
summary  way,   and   no  petition,  case,  or  other  formal  q^  notice 
proceeding  other  than  such   notice  of  motion  shall    be  in  a 
necessary.     The  appellant  may  by  such  notice  of  motion  *"jj""^^'^ 
appeal  from  the  whole  or  any  part  of  any  judgment  or  q^.^  .g 
order,  and  the  notice  of  motion  shall  state  whether  the  k.  2,  e.' 
whole  or  part  only  of  such  judgment  or  order  is  com- 
plained of,  and   in    the   latter    case    shall    specify    sucJi 

jDart. 

See  (559)  p.  415,  ante. 

As  to  appeal  from  part  of  au  order  or  decree,   see  (549) 
p.  408,  ante. 

34.  The  notice  of  appeal  shall  be  served  upon  all  parties  Notice  of 
directly   affected    by  the   appeal,   and   it   shall   not   be  |PPeai. 
necessary  to  serve  parties  not  so  affected ;  but  the  Court  ^  ,  .„ 
of  Appeal  may  direct  notice  of  the  appeal  to  be  served  on  r.  3^  e  ' 
all  or  any  parties  to  the  action  or  other  proceeding,  or 

upon  any  person  not  a  party,  and  in  the  meantime  may 
postpone  or  adjourn  the  hearing  of  the  appeal  upon  such 
terms  as  may  seem  just,  and  may  give  such  iudgment  and 
make  such  order  as  might  have  been  given  or  made  if  the 
persons  served  with  such  notice  had  been  originally 
jiarties.  Any  notice  of  a^jpeal  may  be  amended  at  any 
time  as  to  the  Court  of  Appeal  may  seem  fit. 

See  (555)  p.  411,  ajite. 

35.  The  Court  of  Appeal  shall  have  all  the  powers  and  Powers  of 
duties  as  to  amendment  and  otherwise  of  the  Court  of  ^o"*"*  ^* 
First  Instance,  together  with  full  discretionary  power  to 
receive  further  evidence   iipon  cpiestions   of  fact,  such 
evidence  to  be  either  by  oral  examination  in  court,  by 
affidavit,  or  by  deposition  taken  before  an  examiner  or 
commissioner.     Such    further    evidence    may  be   given  Evidence, 
without  special  leave  upon  interlocutory  applications,  or 

in  any  case  as  to  matters  which  have  occurred  after  the 
date  of  the  decision  from  which  the  appeal  is  brought. 
L^pon  appeals  from  a  judgment  after  trial  or  hearing  of 
any  cause  or  matter  upon  the  merits,  such  further 
evidence  (save  as  to  matters  subsequent  as  aforesaid), 
shall  be  admitted  on  special  grounds  only,  and  not  with- 
out special  leave  of  the  Court.     The  Court  of  Appeal 

2g2 


C76 


APPEALS. 


Order  53. 

Judgment. 

Ord.  58, 
K.  5,  E. 


Eespond- 

eat's 

notice. 

Ord.  5S. 
R.  6. 


shall  have  po^vev  to  give  any  judgment  and  make  any 
oi'der  which  ought  to  have  been  made,  and  to  make  such 
furthei'  or  other  order  as  the  case  may  require.  The 
powers  aforesaid  may  be  exercised  by  the  said  Court, 
notwithstanding  that  the  notice  of  appeal  may  be,  that 
l>art  only  of  the  decision  may  be  reversed  or  varied,  and. 
such  powers  may  also  be  exercised  in  favoiu'  of  all  or  any 
of  the  respondents  or  parties,  although  such  respondents 
or  parties  may  not  have  appealed  from  or  complained  of 
the  decision.  The  Court  of  Appeal  shall  have  power  to 
make  such  order  as  to  the  whole  or  any  part  of  the  costs 
of  the  appeal  as  may  seem  jiist. 

See  (561  and  562)  p.  418,  as  to  evidence. 
(563)  p.  420,  as  to  amendment. 

36.  It  shall  not  under  any  circumstances  be  necessaryfox' 
a  respondent  to  give  notice  of  motion  by  way  of  cross 
appeal,  but  if  a  respondent  intends  upon  the  hearing  of 
the  appeal  to  contend  that  the  decision  of  the  Court  below 
should  be  varied,  he  shall,  within  such  time  as  is  by 
these  Rules  prescribed,  give  notice  of  such  intention  to 
any  parties  who  may  be  affected  by  such  contention. 
The  omission  to  give  such  notice  shall  not  diminish  the 
powers  conferred  by  the  Act  upon  the  Court  of  Appeal, 
but  may  in  the  discretion  of  the  Court  be  ground  for  an 
adjoui'nment  of  the  appeal,  or  for  a  special  order  as  to  costs. 

See  (556)  p.  412,  ante. 


EULE  1. 

Y,i\\i  of 
f  xceptioiit 
suid  eiTor 
abolished. 
Ord.  f  8, 
R.  1 ,  E, 


Rile  2. 
Fourtefu 
and  lour 
days'  notice 
of  ai)peal. 
Ord.  58, 
R.  4,  E. 

Rule  Z. 
Eight  and 
two  days, 
when  by 
respon- 
dent. 
Ord.  -»«, 
i:.  7,  K 


Rules  of  Court. 

1 ,  Bills  of  exceptions  and  proceedings  in  error  excejit 
as  otherwise  provided  by  the  Act  shall  be  abolished. 

Though  formal  bills  of  exceptions  are  abolished  the  actual 
right  to  take  an  exception  is  carefully  preserved  by  the  J.  A., 
1877,  s.  48,  §  3.     See  Chap.  Hv,  (522),  p.  396,  ante. 

As  to  appeals  generally,  see  Chap.  Ivii.,  p.  404,  ante. 

If  appellant  does  not  appear  when  called  on,  the  apj^eal  will 
be  dismissed  with  costs.(yj) 

2,  Notice  of  appeal  from  any  judgment,  whether  final 
or  interlocutory,  shall  be  a  fourteen  days  notice,  and  notice 
of  appeal  from  any  interlocutory  order  shall  be  a  four  days 
notice. 

See  (554)  p.  411,  ante. 

o.  Subject  to  any  special  order  which  may  be  made, 
notice  of  appeal  by  a  respondent  under  the  3Gth  Rule  in 
the  schedule  to  the  Act  shall  in  the  case  of  any  appeal 
from  a  final  judgment  be  an  eight  days  notice,  and  in 

(/.)  E.V parte  Low?,  "\V.  N.,  1877,  2G  W.  E.,  229;  255,  A.  C. 


APPEALS.  <j77 

the  ease  of  an  appeal  from  an  interlocutory  order  a  two    Order  58 
clays  notice. 

See  (536)  p.  412,  ante. 

4.  Tlie  party  appealing  from  a  judgment  or  order  shall     ^^^^^  ^■ 
produce  to  the  jw-oper  officer  of  the  Court  of  Appeal  the  JJ^g"™^?' 
judgment  or  order  or  an  office  copy  thereof,  and  shall  entering 
leave  with  him  a  copy  of  the  notice  of  appeal  to  be  filed,  appeal- 
and  such  officer  shall  thereupon  set  down  the  appeal  by 
entering  the  same  in  the  proper  list  of  appeals,  and  it  listing, 
shall  come  on  to  be  heard  according  to  its  order  in  such  Ord.  ss, 
list,  sinless  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. 

See  (557)  ante,  p.  413. 

5.  The  time  for  appealing  from  any  order  or  decision     Rule  5. 
made  or  given  in  the   matter  of  the  winding  up  of  a  Time  for 
company  under  the  provisions  of  the  Companies  Act,  statutory 
18G2,  or  any  Act  amending  the  same,  or   any  order  or  matter 
decision  made  in  the  matter  of  any  bankruptcy,  or  in  any  ^"igy"'^" 
other  matter  not  being  an  action,  shall  be  the  same  as  the  21  days. 
time  limited  for  appeal  from  an  intei-locutory  order  under  Ord.  08, 
Rule  11  of  this  Order.  ^- ^' E- 

See  (550)  p.  408,  ante. 

6.  Wliere  an  ex  2yc<''>'te  application  has  been  refused  by    Rule  6. 
the  Court  below,  an  application  for  a  similar  purpose  may  ^o^^""  '^*ys 
be  mad-e  to  the  Court  of  Appeal  ex  parte  within  four  fusal  of 
days  from  the  date  of  such  refusal,  or  within  sxich  enlarged  an  order 
time  as  a  Judge  of  the  Court  below  or  of  the  Appeal  ^'^  ^"'^  ^' 

r(       -x  11  Ord.  58, 

Court  may  allow.  P^_  jo^  E. 

See  (552)  p.  409,  ante. 

7.  When  any  cpiestion  of  fact  is  involved  iu  an  appeal.     Rule  7. 
the  evidence  taken  in  the  Court  below  bearing  on  such  ^-vidence 
question  shall,  suliject  to  any  special  order,  be  brought  tions  of 
before  the  Coiu't  of  Appeal  as  follows  :  fact. 

(a.)  As  to  any  evidence  taken  by  affidavit,  by  the  Prints  of 
production  of  printed  copies   of  such  of  the  '^^^J^^^ 
affidavits  as  have  been  printed,  and  office  copies 
of  such  of  them  as  have  not  been  printed. 

(6.)  As  to  any  evidence   given  orally,  by  the  pro-  Notes  of 
duction  of  a  copy  of  the  Judge's  notes,  or,  c^^f^j^^" 
where  the  appeal  is  from  the  Master  of  the  Court. 
Rolls  or  the  Vice-Chancellor,  the  notes  of  the  Ord.  as. 
Clerk  in  Coiu't,  or  such  other  materials  as  the  R-  n.  E. 
Court  may  deem  expedient. 
See  (560)  p.  416,  ante. 


678 


APPEALS. 


Order  58. 

RULK  8. 

eviden'je 
for  appeal. 

Ovd.  58, 
K.  12,  E. 


Rule  9. 
Evidence 
of  ruling  or 
direction 
of  Judge. 

Ord.  68, 
K.  13,  E. 


Rule  lo. 
Appeal  not 
liiudcred 
by  inter- 
locutory 
order. 
Ord.  58. 
K.  14,  E. 

Rule  11. 

Time  for 
appeal, 
21  days 
from  inter- 
locutory, 
one  year 
from  final 
order. 
Deposit 
when 
directed. 
Ord.  58, 
R.  15,  E. 


Rule  12. 
Appeal  no 
stay  of 
execution. 
Ord.  58, 
K.  IC,  E. 


Rule  13. 
Appli- 
cation to 
a  Judge 


8.  Where  evidence  Las  not  been  printed  in  the  Court 
below,  the  Court  below  or  a  Judge  thereof,  or  the  Coui't 
of  Appeal  oi-  a  Judge  thereof,  may  order  the  whole  or 
any  part  thereof  to  be  printed  for  the  purpose  of  the  ajj- 
peal.  Any  pai*ty  printing  evidence  for  the  purpose  of  an 
appeal  without  such  order  shall  bear  the  costs  thereof, 
unless  the  Court  of  Appeal  or  a  Judge  thereof  shall  other- 
wise order. 

See  (560),  p.  417,  ante;  (566),  p.  421. 

9.  If,  upon  the  hearing  of  an  appeal,  a  question  arise  as 
to  the  ruling  or  direction  of  the  Judge  to  a  jury  or  asses- 
sors, the  Court  shall  have  regard  to  verified  notes  or 
other  evidence,  and  to  such  other  materials  as  the  Court 
may  deem  expedient. 

See  (560),  p.  417,  ante. 

10.  No  interlocutory  order  or  rule  from  which  there 
has  been  no  appeal  shall  operate  so  as  to  bar  or  prejudice 
the  Court  of  Appeal  from  giving  such  decision  upon  the 
appeal  as  may  seem  just. 

See  (567),  p.  422,  ante. 

11.  No  appeal  from  any  interlocutory  order  shall, 
except  by  special  leave  of  the  Court  of  A  ppeal,  be  brought 
after  the  expiration  of  twenty-one  days^  and  no  other  ap- 
peal shall,  excej)t  by  such  leave,  be  brought  after  the 
expiration  of  one  year.  The  said  res2oective  periods  shall 
be  calculated  from  the  time  at  which  the  judgment  or 
order  is  signed,  entered,  or  otherwise  jDerfected,  or,  in 
the  case  of  the  refusal  of  an  application,  from  the  date 
of  such  refusal.  Such  deposit  or  other  seciu'ity  for  the 
costs  to  be  occasioned  by  any  appeal  shall  be  made  or 
given  as  may  be  directed  under  special  circumstances  by 
the  Court  of  Appeal. 

See  (550),  p.  408,  a7ite.     An  appeal  from  an  inteiiocutory 
judgment  or  demurrer  has  twelve  months,  (aj 
As  to  deposit,  see  (558),  p.  413. 

12.  An  appeal  shall  not  operate  as  a  stay  of  execution 
or  of  proceedings  under  the  decision  appealed  from,  except 
so  far  as  the  Court  appealed  from,  or  any  Judge  thereof,  or 
the  Court  of  Appeal,  may  so  order ;  and  no  intermediate 
act  or  proceeding  shall  be  invalidated,  except  so  far  as 
the  Court  appealed  from  may  direct. 

See  (568),  p.  422,  ante. 

13.  Wherever  under  these  Rules  an  application  may  be 
made  either  to  the  Court  below  or  to  the  Court  of  Appeal, 

(a)  Dwyer  Esmonde,  28th  Jan.,  1878,  A.  C.  (Ire.) 


EFFECT    OF   NON-COMPLIANCE.  679 

or  to  a  Judge  of   the   Court  below  or  of  the  Court  of  Order^58. 
Appeal,   it  shall  be   made   in   the    first  instance  to  the  or  Court 
Court  or  Judge  below.  Or^^sT'' 

See  (569),  p.  424,  ante.  ^-  !'•  ^• 

14.  Every   application   to    a  Judge    of    the  Coiirt  of    rule  u. 
Appeal   shall  be  by  motion,  and  the  provisions  of  Order  Appii- 
LII.  shall  apply  thereto.  motion/ 

Ord.  58, 

R.  18,  E. 

Order  LIX. 

Effect  of  Non-compliance.  Order  59. 

Non-compliance  with  any   of    these   Rules    shall    not  irregu- 
render   the  proceedings  in  any  action    void    unless  the  ijo^v^jgait 
Court,  or  a  Judge  shall  so   direct,  but  such  pi'oceedings  with, 
may  be  set  aside  either  wholly  or  in   part  as  irregular,  Orel.  .59,  E. 
(jr  amended,  or  otherwise  dealt  with  in  such  manner  and 
upon  such  terms  as  the  Court  or  Judge  shall  think  fit. 

See  Chan.  (Ire.)  Act,  1867,  s.  164  ;  and  179  G.  0.,  1854,  Com. 
Law,  as  to  prompt  application  to  take  advantage  of  any 
irregularity. 

Order  LX. 
Sittings  and   Vacations.  Order  60. 

1.  The  sittings  of  the  Court  of  Appeal  and  the  sittings    Rule  1. 
in  Dublin  of  the  High  Court  of  Justice  .shall  be  four  in  Fo«r 
every  year,    viz.,    the  Michaelmas    sittings,    the  Hilaiy  periods  of. 
sittings,  the  Easter  sittings,  and  the  Trinity  sittings.         q^^^  gi. 

The  Michaelmas  sittings  shall  commence  on  the  2nd  of  R- 1,  E. 
November  and  terminate  on  the  21st  of  December;  the 
Hilary  sittings  shall  commence  on  the  11th  of  January 
and  terminate  on  the  1st  of  April ;  the  Easter  sittings 
shall  commence  on  the  15th  of  April  and  terminate  on 
the  18th  of  May  ;  and  the  Trinity  sittings  shall  com- 
mence on  the  1st  June  and  terminate  on  the  8th  of 
August. 

As  to  abolition  of  terms,  see  J.  A.,  1877,  s.  29,  p.  454,  ante, 
and  to  their  being  preserved  as  to  other  matters.  («) 

A  notice  of  motion  for  a  day  not  within  the  period  of  the 
sittings  is  bad.(Z>) 

2.  The  vacations  to  be  observed  in  the  several  courts    Rule  2. 

and  offices  of  the  Supx'eme  Court  shall  be   four  in  every  Four 

Vaciitious : 

(a)  And  see    (112),    p.   97,  ante.     In  re  arbitration  of  College  of 
Christ  and  Martin,  L.  R.  3,  Q.  B.  D.  16 ;  2.5  W.  R.  637,  A.  C. 
(ft)  Daubney  v.  Shuttleworth,  L.  R.  1,  Ex.  D.  58 ;  24  W.  R.  321. 


680 


SITTINGS  AND  VACATIONS. 


Order  60.  year,  viz.,  tlie  Long  vacation,  the  Christmas   vacation, 
the  Easter  vacation,  and  the  Whitsiin  vacation. 

Long  vaca-  The  Long  \-acation  shall  commence  on  the  10th  of 
August  and  terminate  on  the  24th  of  October.  The 
Christmas  vacation  shall  commence  on  the  24th  of  Decem- 
ber and  terminate  on  the  6th  of  January. 

The  Easter  vacation  shall  commence  on  Good  Friday 
and  terminate  on  Easter  Tuesday,  and  the  Whitsun  va- 
cation shall  commence  on  the  Saturday  before  Whitsunday 
and  shall  terminate  on  the  Tuesday  after  Whitsunday. 


tion. 
Chris  tmas, 


Easter. 

Whitsun 
tide. 


Ord.  61, 
R.  2,  E. 


KuLE  4. 
Oflices 
open. 
Ord.  61, 
R.  4.  E. 


3.  The  days  of  the  commencement  and  termination  of 
each  sittino:  and  vacation  shall  be  included  in  such  sitting 


Rule  3. 
Days 
inclusive. 

Ord.  61        '^^^'^^  vacation  respectively, 

R.  3,  e! 


4.  Tlie  several  offices  of  the  Supreme  Court  shall  be  open 
on  every  day  of  the  year,  except  Sundays,  Good  Friday, 
Saturday  before  Easter,  Monday  and  Tuesday  in  Easter 
week,  Whit  Monday  and  Tuesday,  Christmas  Day,  and 
the  seven  next  following  days,  and  all  days  appointed 
by  proclamation  to  be  observed  as  days  of  general  fast, 
humiliation,  or  thankssfivinsf. 


Role  5. 
Closed  on 
Saturdays. 
Ord.  61, 
R.  4rA),  E. 


5.  The    offices  of  the  Supreme  Court  (including  the 
Judges'  chambers)  shall  close  on  Saturdays  at  2  o'clock. 

The  courts  in  England  usually  rise  at  the  same  hour. 


Rule  C. 
Vacation 
Judge. 
Ord.  61, 
R.  5,  E. 


Lord 

Chancellor 

not 

included. 


6.  One  of  the  Judges  of  the  High  Court  shall  be 
selected  at  the  commencement  of  each  long  vacation 
for  the  hearing  in  Dublin  during  vacation  of  all  such  ap- 
plications as  may  requii-e  to  be  immediately  or  promptly 
heard.  Such  Judge  shall  act  as  vacation  Judge  for  one 
year  from  his  ajipointment.  In  the  absence  of  arrange- 
ment between  the  Judges,  the  vacation  Judge  shall  be 
the  Judge  last  appointed  (whether  as  Judge  of  the  said 
High  Coiirt  or  of  any  Court  whose  jurisdiction  is  by  the 
Act  transferred  to  the  High  Court)  who  has  not  already 
served  as  vacation  Judge  of  any  such  Court,  and  if  there 
shall  not  be  a  Judge  for  the  time  being  of  the  said  High 
Court  who  shall  not  have  so  sei-ved,  then  the  vacation 
Judge  shall  be  the  senior  Judge  who  has  so  served  once 
only  according  to  seniority  of  appointment,  whether  in 
the  said  High  Court  or  such  other  Court  as  afoi-esaid. 
The  Lord  Chancellor  shall  not  be  liable  to  serve  as 
vacation  Judge. 


SHOET-HAND    REPORTING.  G81 

7.  ISIo  order  made  by  a  vacation  Judge  shall  be  re-  OrderGO. 
versed  or   varied  except  by  a  Divisional  Court  or  the    kule  7. 
Court  of  Appeal,  or  a  Judge  thereof,  or  the  Judge  who  f^^^^^^'f^° 
made  the  order.       Any  other  Judge  of  the  High  Court  vacation 
may  sit  in  vacation  for  any  vacation  Judge.  Judge. 

R.  6,  E. 

8.  A  vacation  Judge  may  dispose  of  all  actions,  matters,    ^^^^  ^ 
and  other  business  of  an  tirgent  nature  during  any  in-  Business  ' 
terval  between  the  sittings  of  any  division  of  the  High  f^*^,![^^5on 
Court  to  which  such  business  may  be  assigned,  although  okL  gi, 
such  interval  may  not  be  called  or  known  as  a  vacation,    R-  7,  E- 


Order  LXI. 
Short-hcmd  Reporting.  Order  61. 

1 .  Any  party  desiring  that  the  evidence  in  a  case  of    Rule  1. 
trial  by  jury  shall  be  reported  by  a  short-hand  writer  Appii- 
shall  within  four  days  after  service  of  notice  of  trial  (or  ^^^^^  ^^ 
within  such   further   time  as  may   be   allowed  by   the  evidence 
Covirt  or  a  Jiidge),  apply  to  the  Judge  in  whose  list  the  r«?ported. 
case  shall  have  been  entered  for  trial  for  an  order  that  the 
evidence  shall  be  so  reported,  and  the  Judge  if  satisfied 

that  it  is  expedient  or  desirable  so  to  do,  shall  make 
an  order  to  that  effect,  and  appoint  a  short-hand  wi'iter. 

See  J.  A.,  1877,  s.  61.  §  2,  p.  471. 

2.  The  Judge  may  by  the  same  or  any  other  order     Rule  2, 
dii-ect  such  sum  or  svims  as  he  shall  think  fit,  to  be  lodged  Lodgment 
with  the  Registrar  for  the  future  payment  of  such  short-  expenses, 
hand  A\Titer,  and  in  case  of  non-lodgment  of  such  sum  the 
Judge  may  revoke  or  discharge  the  oiiginal  order. 

3.  The  Judge  shall  have  power  to  direct  copies  of  the  Rule  3. 
short-hand  writer's  transcript  of  the  evidence  or  of  any  Copies  for 
part  thereof  to  be  furnished  to  him,  and  to  the  pai-ties  panfes.^"'^ 
respectively,  within  such  time  as  he  shall  think  fit. 

4.  The  expenses  of  the  short-hand  writer  shall  be  borne    Rule  4, 
by  the  party  applying  for  the  order  that  the  evidence  Expenses, 
shall  be  so  reported  unless  the  Judge  shall  immediately  ^°^  ^0™^. 
after  the  trial  certify  that  in  his  opinion  it  was  expedient 

that  the  evidence  should  have  been  so  reported.  If  the 
Judge  shall  give  such  certificate  such  expenses  shall  be 
part  of  the  costs  in  the  cause.  The  fees  to  be  paid  to  the 
short-hand  writer  shall  be  hereafter  fixed  by  Eules  of 
Court. 

2  G  3 


082 


REMITTER   OF   ACTIONS. 


Order  62. 

Appli- 
cations to 
remit 
ejectments 
for  non- 
payment 
of  rent. 


Order  63. 

Rule  1. 
Appeals 
from 
Recorder 
and  Chair- 
man of 
Dublin  to 
.'udge  of 
Nisi  Prius. 


Rule  2. 
Limit  of 
time  for, 
■within 
14  days. 


Order  LXII. 

Remitter. 
Tlie  powers  conferred  by  the  60th  section  of  the  Act,  in 
reference  to  remitting  ejectments  for  non-payment  of  rent 
to  the  Civil  Bill  Coui'ts,  shall  be  exercised  upon  such 
application  and  in  the  same  manner  as  applications  iiuder 
the  5th  section  of  the  Common  Law  Procedure  Act,  1870^ 
heretofore  were.      Tide  p.  49,  ante. 


Order  LXIII. 
Appeals  Jrom  Recorder,  and  Chairman  of  Dublin. 

1.  Appeals  (other  than  appeals  under  the  33  &  34  Vic.^ 
c.  46,)  from  decrees  or  dismisses  of  the  Recorder  of 
Dublin,  and  decrees,  dismisses,  and  oi'ders  of  the  Chair- 
man of  the  county  of  Dublin,  shall  be  heard  by  sxich  one 
of  the  Judges  constituting  the  Courts  for  the  trial  of 
questions  and  issues  of  fact  as  such  Judges  shall  arrange 
amongst  themselves. 

2.  Every  sticli  appeal  shall  be  entered  with  the  proper 
officer  within  fourteen  days  from  the  date  of  the  decree, 
dismiss,  or  order  complained  of. 

The  following  orders  have  been  made  in  respect  to  these 
appeals  :— 

"  Order  63,  Rule  2. — Every  appeal  (other  than  appeals 
under  the  33  &  34  Vic,  c.  46)  shall  be  entered  with  the  proper 
officer  within  fourteen  days  from  the  date  of  the  decree,  dismiss, 
or  order  complained  of. 

"  Further  Order. — It  is  ordered  that  the  Registrar  of  the 
former  Consolidated  Nisi  Prius  Court  shall  be  the  proper  officer 
with  whom  to  enter  [actions  for  trial  for  the  Hilary  sittnigs, 
1878,  for  the  county  and  county  of  the  city  of  Dublin,  respict- 
Ively,  and]  dockets  of  appeals  as  directed  by  the  Rules  of  Court, 
Order  63. 

"  Dated  this  3rd  of  January,  1878. 

"  George  A.  C.  May.  CJ., 
"  M.  Morris,  C.J.,  C.P.. 

"C.  P.VI.LES,   C.B." 


Order  64. 

Rule  1. 
Orders  not 
to  apply  to 
Probate 
Division 
(with  ex- 
ceptions) 
«t  present. 


Order  LXIV. 
Limitation  of  Orders. 
1.  None  of  the  foregoing  Orders  or  Rules,  excej-t 
Order  L.,  Rules  1  and  3,  and  Order  LVIII.,  shall  apply 
to  proceedings  in  respect  of  business  within  the  exclu- 
sive cognizance  of  the  Coitrt  of  Probate  or  the  Court 
for  Matrimonial  Causes  and  Matters.  The  forms  hitherto 
in  itse  in  these  Courts  respectively  shall,  in  such  pro- 
ceedings, continue   and  be   in  use   in  the  Probate  and 


INTERPRETATION   OF   TERMS.  683 

Matrimonial  Di^dsion,  with,  the  substitution  of  the  words  Order  64. 
"  in  the  High  Court  of  Justice,  Probate  and  Matrimonial 
Di\-ision "  for  the  refei'ence  to  the   said  Courts  in  the 
same  respectively,  until  the  1st  day  of  Janiiary,  1879, 
unless  in  the  meantime  altered  by  Rules  of  Court. 

2.  None  of  the  foregoing  Orders  or  Rules  shall  apply    Rule  2. 
to  any  of  the  following,  viz.  : —  Not  to 

Criminal  Proceedings.  otherwise. 

Proceedings  on  the  Crown  Side  of  the  Queen's  Bench 

Division. 
Proceedings  on  the  Revenue  Side  of  the  Exchequer 

Division. 
Proceedings  before  the  Land  Judges  of  the  Chancery 
Division. 


Order  LXY. 
Interpretation  of  Terms.  Order  66, 

The  pi'ovisions  of  the  3rd  section  of  the  Supreme  interpre- 
Court  of  Judicature  Act  (Ireland),  1877,  shall  apply  to  tation  of 
these  Rules.  llT^V'T 

_        _  •  r»     1  T-*    1  11*  sec.  o,  «i.  A.t 

in  the  construction  of  these  Rules  unless  there  is  any- 
thing in  the  subject  or  context  repugnant  thereto,  the 
several  words  hereinafter  mentioned  or  referred  to  shall 
have  or  include  the  meanings  following  : — 

"  Person  "  shall  include  a  body  corporate  or  politic  :       Person. 
"  Proper  officer  "  shall,  unless  and  until  any  rule  to  proper 
the  contrary  is  made,  mean  an  officer  to  be  ascer-  officer, 
tained  as  follows  : — 
(a.)  Where  any  duty  to  be  discharged  under  the  Act 
or  these  Rules  is  a  duty  which  has    heretofore 
been  discharged  by  any  officer,  such  officer  shall  con- 
tinue to  be  the  proper  officer  to  discharge  the  same  : 
(6.)  Where  any  new  duty  is  under  the  Act  or  these 
Rules  to  be  discharged,  the  proper  officer  to  dis- 
charge  the  same   shall    be    such    officer,   having 
previously  discharged    analogous  duties,   as  may 
from  time  to  time  be  directed  to   discharge  the 
same,  in  the  case  of  an  officer  of  the  Supreme 
Court,  or  the  High  Court  of  Justice,  or  the  Court 
of  Appeal,  not  attached  to  any  division,  by  the 
Lord  Chancellor,  and  in    the  case  of  an  officer 
attached  to  any  division,  by  the  President  of  the 
division,   and  in  the  case  of  an  officer  attached  to 
any  Judge,  by  such  Judge  : 
"  The  Act "  shall  mean  the  Supreme  Court  of  Judica-  ^^t. 
ture  Act  (Ireland;,  1877. 


Forms. 


Part  I., 
Form  1. 


[     684.     ] 
FORMS. 

APPENDIX  (A). 


PART  I. 

Forms  of  Writs  of  Summons,  &c. 

No.  1.  [Title  in  full.] 

187  .  \Here  put  the  letter  mid  number. '\ 
In  the  High  Court  of  Justice  in  Ireland, 
\ Insert  name  of  Division'\  Division. 
County  of  [  When  it  is  proposed  that  the  action  shall  he 
tried  hy  a  Judge  and  Jury,  insert  the  county  or  j)lace 
lohere  the  Cause  is  to  he  t7'iedJ\ 

Between  A.B.  Plaintiff, 

and 
CD.  and  E.F.         Defendants. 
Victoria,  by  the  grace  of  God,  &c. 
To  CD.  of  in  the  county  of  and  E.F.  of 

We  command  you,  That  within  eight  days  after  the 
service  of  this  writ  on  you,  inclusive  of  the  day  of  such 
service,  you  do  cause  an  appearance  to  be  entered  for  you 
in  the  [Insert  iiame  of  Division']  Division  of  Our  Higli 
Court  'if  Justice  in  Ireland,  in  an  action  at  the  suit  of 
A.B.  ;  and  take  notice,  that  in  default  of  your  so  doing 
the  plaintiff  may  proceed  therein,  and  judgment  may  be 
given  in  your  absence.  Witness. — John  Thomas  Ball, 
Lord  High  Chancellor  of  Ireland,  at  Dublin,  this 
day  of  18     . 

Memorandum  to  he  suhscrihed  on  the  writ. 

This  writ  is  to  be  served  within  (twelve)  calendar  months 
from  the  date  thereof,  or,  if  renewed,  within  six 
calendar  months  from  the  date  of  such  renewal,  including 
the  day  of  such  date,  and  not  afterwards. 

The  defendant  [or  defendants]  may  appear  hereto  by 
entering  an  appearance  [or  appearances]  either  per- 
sonally or  by  solicitor  at  the  [Insert  the  office  of  the 
Court  in  which  the  appeo/rance  is  to  he  entered]  office 
at 

Indorsements  to  he  made  on  the  writ  before  issue  thereof. 
The  plaintiff's  claim  is  for,  &c. 

This  writ  was  issued  by  E.F.  of  solicitor  for  the 

said  plaintiff,  who  resides  at  ,  or,  this  wiit  was  issued 


FORMS   OF   WRITS   OF   SUMMONS.  685 

Iby  the  plaintiff  in  person,  who  resides  at  [Mention  the  city,     Forms. 
town,  or  parish,  and  also  the  name  of  the  street  and  number  AppendixA. 
of  the  house  of  the  2}laintiffs  residence,  if  any].  partlT 

Indorsement  to  be  made  on  the  ivrit  after  service  thereof. 
This  writ  was  served  by  X.Y".  on  L.M.  [the  defendant 
or  one  of  the  defendants],  on  Monday,  the  day  of 

18     . 

(Signed)         X.Y. 

No.  2.  Form  2. 

Wo'it  of  Summons  {Stimmary  Bills  of  Exchange  Acts). 

187  .  \Here  insert  letter  and  No.] 
In  the  High  Court  of  Justice  in  Ireland. 
[Insert  Division]  Division. 
County  of  [Insert  venue  as  dh'ectedfor  Form  1.] 
{Notice  pursuant  to  24  <&  25  Vic,  c.  43.) 
The  Defendant  CD.  is  hereby  warned  and  required  to 
take  notice,  that  this  action  being  brought  on  the  bill  of 
exchange  [or  2}romissory  note]  mentioned  in  the  indorse- 
ment hereon,  is  brought  under  the  "  Summary  Procedure 
on  Bills  of  Exchange  (Ireland)  Act,  1861,"  and  that  vmless 
within  twelve  days  from  the  service  hereof  he  shall  obtain 
leave  from  a  Judge  of  the  High  Court  of  Justice  in  Ireland 
to  appear  and  defend  the  action,  and  shall  within  that 
time  cause  an   appearance  to  be   entered  for  him,  the 
Plaintiff  A.B.  will  be  entitled,  without  any  further  notice 
whatever,  to  issue  execution  against  for  the  sum  of 

pounds,  shillings,  and  pence,  and  the 

costs  of  this  action. 

Leave  to  appear  may  be  obtained  on  an  application  to 
a  Judge,  supported  by  affidavit,  showing  that  there  is  a 
defence  to  the  action  on  the  merits,  or  that  it  is  reasonable 
that  the  Defendant  should  be  allowed  to  appear  and  defend 
the  action,  or  by  lodging  the  amount  claimed  in  Court. 
Between  A.B.  Plaintiff, 

and 
CD.  Defendant. 

Victoria,  by  the  grace  of  God,  of  the  United  Kingdom 
of  Great  Britain  and  Ireland,  Queen,  Defender  of  the 
Faith,  and  so  forth. 

To  CD.  of  in  the  coimty  of 

We  command  you.  That  -within  twelve  days  after  the 

service  of  this  writ  on  you,  inclusive  of  the  day  of  such 

service,  you  do  cause  an  appearance  to  be  entered  for  yoxi 

in  the  Division  of  Our  High  Court  of  Justice  in 


^ 


8G  FORMS   OF   WRITS   OF   SUMMONS. 

Foms.     Ii-eland,  in  an  action  at  the  suit  of  A.B. ;  and  take  notice, 
AjjpendixA.  that  in  default  of  your  so  doing  the  plaintiff  may  proceed 

therein,  and  judgment  may  be  given  in  your  absence. 

Form  2.       Witness. — John  Thomas  Ball,  Lord  High  Chancellor  of 
Ireland,  at  Dublin,  this  day  of  18       . 

Memorandum  to  he  subscribed  on  the  writ. 

This  writ  is  to  be  served  within  (tivelve)  calendar  months 
from  the  date  thereof,  or,  if  renewed,  within  six  calendar 
months  from  the  date  of  such  renewal,  including  the 
day  of  svich  date,  and  not  afterwards. 

The  defendant  [or  defendants~\  may  appear  hereto  by 
entering  an  appearance  [or  aj)pearances'\  either  per- 
sonally or  by  solicitor,  at  the  [Insert  the  office  of  the 
Court  in  ivliich  the  apj)earance  is  to  be  entered'\  office 
at 

Indorsements  to  be  made  on  the  writ  before  issue  thereof 
The  plaintifi's  claim  is  for  ^  ,  due  on  foot  of  a  bill 

of  exchange  [or  p7'0)nisso7'i/  note'],  of  which  the  following 

is  a  copy : — [Set  out  here  the  hill  or  note  in  full,  with  the 

indorse7nents  thereon']. 

This  writ  was  issued  by  E.F.  of  solicitor  for  the 

said  plaintiff  in  person,  whose  registered  residence  is  at 
,  or,  this  writ  was  issued  by  the  plaintiff  in  person 

who    resides  at  [Mention  the  city,  town,  or  parish,  and 

also  the  name  of  the  street  and  number  of  the  house  of  the 

plaintiff's  7-esidence,  if  aiiy]. 

Indorse7nent  to  he  made  on  the  writ  after  service  thei'eof 
This  writ  was  served  by  X.Y.  on  CD.  [the  defendant 
or  one  of  the  defendants],  on  Mo7ida7j,  the  day  of 

18      . 

(Signed)         X.Y. 


Form  3.  No.  3. 

Writ  for  se7'vice  out  of  the  jurisdiction,  or  where  notice 
in  lie7i  of  sei'vice  is  to  he  given  out  of  the  jurisdiction. 
187    .     [Here  put  the  letter  and  number.']     In  the 
High  Court  of  Justice  in  Ireland. 
Division. 

Between  A.B.         Plaintiff, 

and 
CD.  and  E.F.         Defendants. 

Victoria,  by  the  grace  of  God,  (fee. 
To  CD.  of 
"We  command  you,  CD.,  That  within  [Here  insert  the 


FORMS   OF   WRITS    OF   SUMMONS.  687 

number  of  days  directed  by  the  Court  or  Judge  ordering    Forms. 
the  service  or  oioticel  after  tlie  service  of  this  writ  [or  notice  AppendixA. 

of  this  writ,  as  the  case  may  be~\  on  you,  inclusive  of  the       

day  of  such  service,  you  do  cause  an  appearance  to  be  porm  3. 
entered  for  you  in  the  Division  of  Our  High  Court 

of  Justice  in  an  action  at  the  suit  of  A.B.  ;  and  take  notice, 
that  in  default  of  your  so  doing  the  plaintifi'  may  pi'oceed 
therein,  and  judgment  may  be  given  in  your  absence. 
Witness,  &c. 

Memoranda  and  Indorsements  as  in  Form  No.  1. 
Indorsement  to  he  made  on  the  writ  before  the  issue  thereof. 

N.B. — This  ivrit  is  to  be  used  lohere  the  Defendant  or 
alltlie  Defendants  or  one  or  more  Defendant  or  Defendants 
is  or  are  out  of  the  jtirisdiction. 


Xo.  4.  Form  4. 

Notice  of  Writ  in  lieu  of  service  to  be  given  out  of  the 
jurisdiction. 
187    .     [Ilere  put  the  letter  and  number.] 
Between  A.B.  Plaintiff, 

and 
CD.,  E.F.,  and  G.H.         Defendants. 
To  G.H.  of 
Take  notice,  that  A.B. ,  of         has  commenced  an  action 
against  you,  G.H.,  in  the  Division  of  Her  Majesty's 

High  Court  of  Justice  in  Ix'eland,  by  writ  of  that  Couii;, 
dated  the  day  of  ,  a.d.  18      ;  which  writ  is 

indorsed  as  follows  [copy  in  full  the  indoi-semeyits],  and 
you  are  required  within  days  after  the  receipt  of 

this  notice,  inclusive  of  the  day  of  such  receipt,  to  defend 
the  said  action,  by  causing  an  appearance  to  be  entered 
for  you  in  the  said  Court  to  the  said  action  ;  and  in  default 
of  your  so  doing,  the  said  A.B.  may  pi'oceed  therein,  and 
pulgment  may  be  given  in  your  absence. 

You  may  appear  to  the  said  wiit  by  entering  an  ap- 
l^earance  personally  or  by  your  solicitor  at  the  [  ] 

office  at 

(Signed)         A.B.  of  (fee. 

or 
X.Y.  of  .fee. 

Solicitor  for  A.B. 
Ill  the  High  Court  of  Justice  in  Ireland. 
Division. 


688  MEMORANDUM   OF   APPEARANCES. 

Forms.  No.  5. 

Appendix  A,  Form  of  Memorandtmi  for  Renewed  Writ. 

Pai-ri"       ^^^  *^®  High  Court  of  Justice  in  Ireland. 
Form  5.  Division. 

Between  A.B.,  Plaintiff, 
and 
CD.,  Defendant. 

Seal  renewed  wiit  of  summons  in  this  action  indorsed 
as  follows  : — 

\Coj)y  original  ivrit  and  the  indorsements. '\ 


Form  6.  No.  6. 

Memorandum  of  Appearance. 
187    .     [Here  jjut  the  letter  and  number.'] 
High  Court  of  Justice  in  Ireland, 
\_Ghancery]  Division. 

A.B.  V.  CD.,  and  others. 
Enter  an  appearance  for  in  this  action. 

Dated  this         day  of 
X.Y., 

Solicitor  for  the  Defendant. 
The  registered  address  of  X.Y,  is 

or  [CD., 

Defendant  in  person. 
The  addi-ess  of  CD.  is 
His  address  for  sex'vice  is  .] 

The  said  defendant  requires    \or,  does  not  reqviire]  a 
statement  of  complaint  to  be  filed  and  delivered. 


Form  7.  No.  7. 

Notice  to  limit  Defence  as  required  by  Order  X.I.,  9. 

[Here  put  the  letter  and  number.^ 
In  the  High  Coxirt  of  Justice  in  Ireland. 

Queen's  Bench  (or  Chancery,  C.P.,  or,  dx.)  Division. 
Between  A.  B.,  Plaintiff, 
and 

CD.,  and 
E.F.,  Defendants, 
The  defendant  CD.  limits  his  defence  to  part  only  of 
the  property  mentioned  in  the  writ  in  this  action^  that  is 
to  say,  to  the  close  called  "  the  Big  field." 

G.H., 
Solicitor  for  the  said  Defendant  CD. 
To  Mr.  X.Y.,  Plaintiff's  solicitor. 


[    689    ] 

^  ^    ^  -.-                                                 Forms. 
PART    II.  

fcECTIO^f    I.  

Gekebal  Ikdoesemests,  s^  "" 

In  maUers  assigned  by  the  36?A  Section  of  the  Act  to  the 
Clvo.ncery  Division. 
1.  Creditor  to  administer  Estate. 
The  Plaintift's  claim  is  as  a  creditor  of  X.  Y.,  of 
deceased,  to  liave  the  [real  and]  personal  estate  of  the 
said  X.Y.  administered.      The  defendant  CD.   is  sued 
as  the  administrator  of  the  said  X.Y.  land  the  defen- 
dants E.F.  and  G.H.  as  his  co-heiresses-in-law]. 

2.  Legatee  to  a/lminister  EstaM. 

The  plaintiflTs  claim  is  as  a  legatee  ttader  the  will 
dated  the  day  of  ,  18     ,  of  X.Y.,  deceased, 

to  have  the  [real'and]  personal  estate  of  the  said  X.Y. 
administered.  The  defendant  CD.  is  sued  as  the  executor 
of  the  said  X.Y.  [and  the  defendants  E.F.  and  G.H.  a.3 
his  devisees]. 

■3.  PartTversMp. 

The  plaintiff's  claim  is  to  have  an  account  taken  of  the 
partnership  dealings  between  the  plaintiff  and  defendant 
[under  articles  of  partnership  dated  the       day  of  ], 

and  to  have  the  affairs  of  the  partnership  wound  up. 

4.  By  ^lortgagee. 
The  plaintiff's  claim  Ls  to  have  an  account  taken  of  what 
is  due  to  him  for  principal,  interest,  and  costs  on  a  mort- 
gage dated  the         day  of  made  between 
[or  hy  deposit  of  title  deeds],  and  that  the  mortgage  may 
be  enfoix-ed  by  foreclosure  or  sale. 

•5.  By  Mortgagor. 
The  plaintiff's  claim  is  to  have  an  account  taken  of  what, 
if  anything,  is  due  on  a  mortgage  dated  and 

made  between  [parties],  and  to  redeem  the  property 
comprised  therein. 

6.  Raising  portionjs. 

The  plaintiff's  claim  is  that  the  sum  of  £  ,  which 

by  an  indenture  of  settlement  dated  ,  was  provided 

for  the  portions  of  the  younger  children  of  may 

be  raised. 

7.  Execution  of  Tracts. 

The  plaintiff's  claim  is  to  have  the  trusts  of  an  inden- 
ture dated  and  made  between  ,  carried  into 
execution- 


690 


MONEY   CLAIMS. 


Forms. 

Appendix  A. 

Part  II., 
Sec.  I. 


Sec.  II. 


/         Goods 
sold. 


/         Money 
•*  lent. 

Several 
demands. 


Rent. 
Salary,  &c. 

Interest. 

General 
average. 

Freight, 
Ac. 

Tolls. 
Penalties. 


8.   Cancellation  or  Rectification. 
The  plaintiff's  claim  is  to  have  a  deed  dated 
and  made  between  \_parties\,  set  aside  or  rectified. 

9.  Specific  Performance. 
The  plaintiff's  claim  is  for  specific  performance  of  an 
agreement  dated  the  day  of  ,  for  the  sale  by 

the  plaintiff  to  the  defendant  of  certain  [freehold  lands] 
at 

Section  II. 
Money  claims  where  no  Special  Indorsement  under 
Order  11. ,  Rvle  3. 
The  plaintiff's  claim  is  £  for  the  price  of  goods 

sold. 

\This  Form  shall  suffice  whether  the  claim  he  in  respect 

of  goods  sold  and  delivered,  or  oj  goods  bargained 

and  sold.] 

The  plaintiff's  claim  is  £ 

interest]. 

The  plaintiff's  claim  is  £ 
the  price  of  goods  sold,  and  £ 
£,  for  interest. 

The  plaintiff's  claim    is  £ 

The  plaintifi"'s  claim  is  =£ 

a  clerk  [or  as  the  case  may  he] 

The  plaiutiff 's  claim  is  £ 


for  money  lent  [a7id 

whereof  £  is  for 

for  money  lent,  and 

for  arrears  of  rent, 
for  ai'rears  of  salary  as 


Banker's 
balance. 

Fees,  &.C., 
as  solicitors. 

Commis- 
sion. 

Medical 

attendance, 

.fee. 

Uetiirn  of 

liriiuium. 

AVurehouse 

nut. 


for  interest  upon  money 

for  a  general  average 

for  freight  and  demurrage, 
for  lighterage, 
for  market  tolls  and 

for  penalties  under 

for  money  deposited  with 

for  fees  for  work  done 
[and  £  money  expended]  as  a  solicitor. 

The  plaintiff's  claim  is  £  for  commission  earned 

as  \ state  character  as  auctioneer,  cotton  broker,  &c.] 

The  plaintiff's  claim  is  £  for  medical  attendances. 

The  plaintiff's  claim  is  £  for  a  return  of  premiums 
paid  upon  policies  of  insurance. 

The  plaintiff's  claim  is  £  for  the  warehousing  of 

coods. 


lent. 

The  plaintiff's  claim  is  £ 
contribution. 

The  plaintiff's  claim  is  £ 

The  plaintiff's  claim  is  £ 

The  plaintift^'s  claim  is  £ 
stallage. 

The  plaintiff's  claim  is  £ 
the  Statute.      [     .     .     .     . 

The  plaiatifi"'s  claim  is  £ 
the  defendant  as  a  banker. 

The  plaintiff's  claim  is  £ 


MONEY  CLAIMS.  691 

The  plaintiff's  claim  is  £  for  tlie  carriage  of  goods     Forms. 

b}'  railway.     ^  ^  Appe,„iixA. 

The  plaintiff's  claim  is  £  for  the  use  and  occupa-       

.  •  f  ^  1  ^       Part  II., 

tion  01  a  house.  gg^  jj_ 

The  plaintiff's  claim  is  £  for  the  hii-e  of  \_furni-       

^^'^^]-     .  .      .   .  ofgooi:. 

The   plaintiff 's  claim   is  <£  for  •svork  done  as  a  Use  and 

surveyor.  occupation 

.        .  •  •  of  llOUSGS 

The  plaintiff's  claim  is  £  for  board  and  lodging.     Hire  of 

The  plaintiff's  claim  is  £  for  the  board,  lodging,  goods. 

and  tuition  of  X.Y.  ^^^, 

The  plaintiff's  claim  is  £  for  money  recei^'ed  by  Board  and 

the  defendant  as  solicitor  [or  factor,  or  collector,  or,  <&c.]  g'l.'Ji^o'ifiirv 

of  the  plaintiff.  Money 

The  plaintiff's  claim  is  £  for  fees  received  by  the  received. 

*"  J?  GGS  01 

defendant  under  colour  of  the  office  of  office. 

The  plaintiff's  claim  is  £  for  a  return  of  monc}'  Money- 

overcharged  foj"  the  caiTiage  of  goods  by  railway.  overpaid. 

The  plaintiff's  claim  is  £  for  a  return    of  fees 

overchaiged  by  the  defendant  as 

The  plaintiff's  claim  is  £         for  a  return  of  money  Return  of 
deposited  with  the  defendant  as  stakeholder.  ^°^^f  ^^ 

The  plamtiff 's  claim  is  £  for  money  intrusted  holder, 

to  the  defendant  as  stakeholder,  and  become  payable  to  f'^"^*'^*^]?"' 

plaintiff.  holder. 

The  plaintiff's  claim  is  £  for  a  return  of  money  Money 

intinisted  to  the  defendant  as  agent  of  the  plaintiff.  T^a^^nT 

The  plaintiff's  claim  is  £  for  a  return  of  money  i\roney 

obtained  from  the  plaintiff  by  fraud.  b^*Sud 

The  plaintiff's  claim  is  £  for  a  return  of  money  Money  paid 

paid  to  the  defendant  by  mistake.  by  mis- 

The  plaintiff's  claim  is  £  for  a  return  of  money  Money 

paid  to  the  defendant  for  \icork  to  he  done  left  ^iiidone  ;  paid  for 
or,  a  bill  to  be  taken  nj)  ;  not  taken  up,  or,  c£-c.]  a.ti'on'which- 

The  plaintiff's  claim  is  £  for  a  I'eturn  of  money  has  fiiiied. 

paid  as  a  deposit  upon  shares  to  be  allotted. 

The  plaintiff's  claim  is  £  for  money  paid  for  the  Money 

defendant  as  his  surety.  ^1^*^^^ 

The  plaintiff's  claim  is  £  for  money  paid  for  rent  defendant. 

due  by  the  defendant.  "  Rent  paid. 

The  plaintiff's  claim  is  £  xipon  a  bill  of  exchange  paid  on 

accepted  \_or  indorsed}  for  the  defendant's  accommodation,    accommo- 

The  plaintiff's  claim  is  £  for  a  contribution  in  comri-  ^ 

respect  of  money  paid  by  the  plaintiff  as  surety.  bution  by 

The  plaintiff's  claim,  is  £  for  a  contribution  in  g^"^' 

respect  of  a  joint  debt  of  the  plaintiff  and  the  defendant,  debtor. 
paid  by  the  plaintiff. 


692 


MONEY   CLAIMS 


Forms. 

Aj)pe7ulixA. 

Part  II., 
Sec.  II. 

Money 

paid  for 

calls. 

Money 

payable 

under 

award. 

Life  policy. 

Money 

bond. 

Foreign 

judgment. 

Bills  of 

exchange, 

&c. 


Surety. 


Bel  credere 
agent. 


Calls. 
"Waygoing 
crops,  &c. 


The  plaintiff's  claim  is  £  foi'  money  paid  for  calls 

upon  shares,  against  which  the  defendant  was  bound  to 
indemnify  the  plaintiff. 

The   plaintiff's   claim   is   £  for   money   payable 

under  an  award. 

The  plaintiff's  claim  is  £  upon  a  policy  of  insur- 

ance upon  the  life  of  X.Y.,  deceased. 

The  plaintiff's  claim  is  £  upon  a  bond  to  secure 

payment  of  £1,000  and  interest. 

The  plaintiff's  claim  is  £  upon  a  judgment  of  the 

Court,  in  the  [Empire  of  Bussict]. 

The  plaintiff's  claim  is  £  upon  a  cheque  drawn 

by  the  defendant. 

The  plaintiff's  claim  is  £  upon  a  bill  of  exchange 

accepted  [or  drawn  or  indorsed']  by  the  defendant. 

If  the  action  is  brought  under  the  Bills  of  Exchange 
Acts  there  mitst  he  a  special  indorsement  as  in  Appendix 
A.,  Part  I.,  Form  2. 

The  plaintiff's  claim  is  £  upon  a  promissory  note 

made  \or  indorsed]  by  the  defendant. 

The  plaintiff's  claim  is  £  against  the  defendant 

A.B.  as  acceptor,  and  against  the  defendant  CD.  as  drawer 
[or  indorser]  of  a  bill  of  exchange. 

The  plaintiff's  claim  is  £  against  the  defendant 

as  surety  for  the  price  of  [goods  sold]. 

The  plaintiff's  claim  is  £  against  the  defendant 

A.B.  as  principal,  and  against  the  defendant  CD.  as 
surety,  for  the  price  of  goods  .sold  [or  arrears  of  rent, 
or  for  money  lent,  or  for  monpij  received  hy  the  defendant 
A.B.  as  traveller  for  the  p)laintiffs,  or,  «&c.] 

The  plaintiff's  claim  is  £  against  the  defendant 

as  a  del  credere  agent  for  the  price  of  goods  sold  [or  as 
losses  uoider  a  policy]. 

The  plaintiffs  claim  is  £  for  calls  upon  shares. 

The  plaintiff's  claim  is  £  for  crop,  tillage,  manure 

[or  as  the  case  may  be]  left  by  the  defendant  as-  outgoing 
tenant  of  a  farm. 


Sec.  iiL  Section  III. 

Indorsement  Jor  Costs,  d-c.  [Add  to  the  above  Forms]. 

And  £  for  costs  ;   and  if  the  amount  claimed 

be  paid  to  the  plaintiff  or  his  solicitor  within  four  days 
[or  if  the  vyrit  is  to  be  served  out  of  the  jurisdiction,  or 
notice  in  lieu  of  service  allowed,  insert  the  time  Jor 
ap-pearance  limited  by  the  order]  from  the  sei-vice  hereof, 
further  proceedings  will  be  stayed. 


DAIMAGES   AND   OTHER   CLAIMS.  693. 

Forms. 
Section  TV.  ,  — -    ^ 

AjipemlixA. 

Damages  aiid  other  Claims.  

The  plaintiff's  claim  is  for  damages  for  breach  of  a  se(._  xy".' 
contract  to  employ  the  plaintiff  as  traveller.  

The    plaintiff's   claim   is   for   damages   for    wrongful  -'^sent,  &c. 
dismissal  from  the  defendant's  employment  as  traveller 
\ctiul  £  for  arrears  ofivages\ 

The  plaintiff's  claim  is  for  damages  for  the  defen- 
dant's wrongfully  quitting  the  plaintiff's  employment  as 
manager. 

The  plaintiff's  claim  is  for  damages  for  breach  of  duty 
as  factor  \or,  (Oc]  of  the  plaintiff  \_and  £  for  inoney 

received  as  factor,  «£'c.] 

The  plaintiff's  claim  is  for  damages  for  breach  of  the  Appren- 
terms  of  a  deed  of  apprenticeship  of  X.Y.  to  the  defen-  *^*^^®- 
daut  [or  plaintiff\ 

The  plaintiff's  claim  is  for  damages  for  non-compliance  Arbitra- 
with  the  award  of  X.Y.  tion. 

The  plaintiff's  claim  is  for  damages  for  assault  [and  Assault,  &c. 
false  imprisonment  and  for  malicious  2)rosecution'\. 

The  plaintiff's  claim  is  for  damages  for  assault  and  By  husband 
false  imprisonment  of  the  plaintifi'  CD.  ^'"^  wife. 

The  plaintiff's  claim  is  for  damages  for  assault  by  the  Against 
defendant  CD.  anfwift 

The  plaintiff's  claim  is  for  damages  for  injury  by  the  solicTtor. 
defendant's  negligence  as  solicitor  of  the  plaintiff. 

The  plaintiff's  claim  is  for  damages  for  negligence  in  the  Bailment, 
custody  of  goods  [and  for  wrongfully  detaining  the  same\ 

The  plaintifl''s  claim  is  for  damages  for  negligence  in  piedge. 
the  keeping  of  goods  pawned  [aTidfor  wrong  fidly  detaining 
the  same']. 

The  plaintiff's  claim   is  for  damages  for  negligence  in  Hire, 
the  custody  of  furniture  lent  on  hire  [or  a  carriage  lent], 
[and  for  wrongfdly,  cC'c] 

The   plaintiff's   claim  is  for   damages  for  wrongfully  Banker, 
neglecting  [or  reftising]  to  pay  the  plaintiff's  cheque. 

The  plaintiff's  claim   is  for  damages  for  breach  of  a  Bill, 
contract  to  accept  the  plaintiff's  drafts. 

The  plaintiff's  claim  is  upon  a  bond  conditioned  not  to  Bond, 
cany  on  the  trade  of  a  [  ]. 

The  plaintiff's  claim  is  for  damages  for  refusing  to  carry  Carrier, 
the  plaintiff's  goods  \by  railway]. 

The  plaintiff's  claim  is  for  damages  for  refusing  to  carry 
the  plaintiff  [by  railioay]. 

The  plaintift's  claim  is  for  damages  for  breach  of  duty  in 
and  about  the  [carrlcge  and  delivery  of  coals  hy  railway]. 


694 


RECOVERY  OF  LAND  AND  OTHER  CLAIMS. 


Forms. 

AppendixA. 

Part  II., 
Sec.  IV. 

■Charter- 
party. 
Claim  for 
return  of 


damages. 
Damages 
for  de- 
priving of 
goods. 
Defama- 
tion. 
Distress. 
Keplevin. 
Wrongful 
•distress. 


Ejectment. 


To  estab- 
lish title 
and  recover 
rents. 


The  plaintiff's  claim  is  for  damages  for  breach  of  duty 
iu  and  about  the  [^carriage  and  delivery  of  machinery  hy 
seci]. 

The  plaintiff's  claim  is  for  damages  for  lireach  of 
charter-party  of  ship  [Mary'j. 

Tlie  plaintiff's  claim  is  for  return  of  [household  furni- 
ture, or,  o&c],  or  their  value,  and  for  damages  for  detaining 
the  same. 

The  plaintiff's  claim  is  for  wrongfully  depiiving  plain- 
tiff of  goods  \_hoiisehold  furniture,  d'c.  ] 

The  plaintiff's  claim  is  for  damages  for  libel. 

The  plaintiff's  claim  is  for  damages  for  slander. 

The  plaintiff's  claim  is  in  replevin  for  goods  ^vrongfully 
distrained. 

The  plaintiff's  claim  is  for  damages  for  improperly 
distraining. 

[This  Form  shall  he  sufficient  whether  the  distress  com- 
plained.  of  he  vrrongful  or  excessive,  or  irregidar,  (tnd 
whether  the  claim  be  for  damages  only,  or  for  double 
valuei\ 

Recovery  of  Land  («). 

The  plaintiff's  claim  is  to  recover  possession  of  ^a 
house,    No.     ]  in  street  [or  of  a  farm  called  Black- 

acre^,  situate  in  the  barony  of  in  the  county  of 

The  plaintiff's  claim  is  to  establish  his  title  to  [Jiere 
describe  property'],  and  to  recover  the  rents  thereof 

[The  tioo  previous  Forms  may  be  combined.^ 


To  estab 

lish  title         T 

and  recover  '^OUSe, 

mesne 

profits. 


Or  (h). 
The  plaintiff' 's   claim   is  to  recover   possession   of  [« 
No.         in  street']  in  the  parish  of  [or 

of  a  jarm  called   Whiteacre,  situate  in  the  barony  of 
and  county  of  ],  and  the  sum   of  £  for  mesne 

profits  of  the  said  premises  while  the  possession  tho-eof 
has  been  withheld. 
Dower.  The  plaintiff's  claim  is  for  dower. 

Fishery.  The  plaintiff's  claim  is  for  damages  for  infringement 

of  the  plaintiff's  right  of  fishing. 
Fraud.  The   plaintiffs    claim  is   for  damages   for   fraudulent 

misrepresentation  on  the  sale  of  a  horse  [or  a  business,  or 
shares,  or,  tf'c] 

The   plaintiff's  claim    is  for   damages  for  fraudulent 
misrepresentation  of  [the  credit  o/"  A.B.] 
Guarantee.       The  plaintiff's  claim  is  for  damages  for  breach  of  a 
contract  of  giinrantee  for  A.B. 


DAMAGES   AND   OTHER   CLAIMS.  095 

The  plaintifl's   claim  is  for  damages  for    breach  of  a     Forms. 

contract  to  indemnify  the  plaintiff  [as  the  defendant's  .ippemlixA. 

agent  to  distrahi].  p  .TTT" 

The  plaintift's  claim  is  for  a  loss  under  a  policy  [upon  sedv!' 

the  ship  '^ Royal  Charter"  and  freight  or  cargo\  [or,  for       

J'  •         -\  Insurance. 

return  of  premiums^. 

[This  Form  shall  be  sufficient  vjhether  the  loss  claimed 
he  total  or  partial.^ 

The  plaintiff's  claim  is  for  a  loss  under  a  policy  of  fire  Fire 
insurance  upon  [house  and  furniture'].  insurance. 

The  plaintiff's  claim  is  for  damages  for  breach   of  a 

contract  to  insure  [a  houseX 

The  plaintifi''s  claim  is  for  damages  for  breach  of  con-  Landlord 
,   r/    ,  ,  .  •  -,         °  and  tenant, 

tract  [to  keep  a  house  tn  rejxnrj. 

The  plaintiff's  claim  is  for  damages  for  breaches  of 
covenants  contained  in  [a  lease  of  a  farm]. 

The  plaintiff's  claim  is  for  damages  for  injviry  to  the  Medical 
plaintiff  from  the  defendant's  [negligence]  as  a  medical 
man. 

The  plaintiff's  claim  is  for  damages  for  injury  bv  the  ^^'.«- 
defendant's  [c^of/].  animal. 

The  plaintiff's  claim  is  for  damages  for  injury  to  the  Negligence, 
plaintiff  [or,   if  by  husband  and  wife,   to  the   plaintiff, 
C.  D.]  by  the  negligent  [driving  of  the  defendant  or  his 
servants]. 

The  plaintiff's  claim  is  for  damages  for  injury  to  the 
plaintiff  while  a  passenger  on  the  defendant's  railway  [bij 
the   negligence  of  the  defendant's  servants]. 

The  plaintiff's  claim  is  for  damages  for  injury  to  the 
plain tifi"  at  the  defendant's  railway  station  [  from  the  de- 
fective condition  of  the  statioii]. 

The  plaintiff's  claim  is  as  executor  of  A.B.  deceased,  Lord 

for  damages  for  the  death  of  the  said  A.B.  [from  injuries  ^^"^  ^   ® 

received  tvhile  a  passenger  on  the  defendant' s  railway,  by 

the  negligence  of  the  defendant' s  servants]. 

The  plaintiff's  claim  is  for  damages  for  breach  of  pro-  Promise  of 
r-  •  marriage, 

mise  oi  marriage.  ° 

The  plaintiffs  claim  is  for  damages  for  the  seduction  of  Seduction, 
the  plaintift's  [danghter]. 

The  plaintift's  claim  is  for  damages  for  breach  of  con-  Sale  of 
tract  to  accept  and  pay  for  goods.  ^^^"^  ^* 

The  plaintift's  claim  is  for  damages  for  non-delivery 
[or  short  delivery,  or  defective  quality,  or  other  breccch  of 
contract  of  scde]  of  cotton  [or,  c&c] 

The  plaintift's  claim  is  for  damages  for  breach  of  war- 
ranty [of  a  horse]. 

The  plaintift's  claim  is  for  damages   for  breach  of  a  Sale  of 
contract  to  sell  [or  purchase]  land. 


696 


DAMAGES   AND   OTHER   CLAIMS. 


Forms. 

Appendix^ 

Part  II., 
Sec.  IV. 


Trespass 
to  land. 


Support. 
Way. 


Water- 
course, <fcc. 


Pasture. 

Light. 

Sporting. 

Patent. 

Copyright, 

Trade 
mark. 

"Work. 
Nuisance. 


Tlie  plaintiff's  claim  is  for  damages  for  breacli  of  a  con- 
tract to  let  [or  take]  a  lionse. 

The  plaiutifl''.s  claim  is  for  damages  for  breacli  of  a 
contract  to  sell  [or  purchase]  the  lease,  with  goochoiU, 
fixtures,  and  stock  in  trade  of  a  2^ublic-house. 

The  plaintiff's  claim  is  for  damages  for  breach  of  cove- 
nant for  title  [or  for  quiet  enjoyment,  or,  <&c.]  in  a  convey- 
ance of  laud. 

The  plaintiff's  claim  is  for  damages  for  wi-ongfuUy 
entering  the  plaintiff's  land  and  drawing  water  from  his 
well  [or  cutting  his  grass,  or  p)ulling  down  his  timber,  or 
jndling  doion  his  fences,  or  removing  his  gate,  or  using  his 
road  or  path,  or  crossing  his  field,  or  dejwsiting  sand  there, 
or  carrying  away  gravel  from  thence,  or  carrying  away 
stones  from  his  river^. 

The  plaintiff's  claim  is  for  damages  for  wrongfully  taking 
away  the  support  of  plaintiff's  land  [or  house,  or  mine]. 

The  plaintiff's  claim  is  for  damages  for  -v\i-ongfully 
obstructing  a  way  [jmblic  highivay  or  a  jjrivafe  ivay]. 

The  plaintiff's  claim  is  for  damages  for  wrongfully 
divei-ting  [or  obstructing,  or  2'>olluting,  or  diverting  ivater 
from]  a  watercourse. 

The  plaintiff's  claim  is  for  damages  for  wrongfidly 
discharging  water  upon  the  plaintiff's  land  [or  into  tJie 
plaintiff " s  mine]. 

The  plaiatiff's  claim  is  for  damages  for  [xm-ongfully 
obstructing  the  2)laintiff's  use  of  a  ivell]. 

The  plaintift's  claim  is  for  damages  for  the  infringe- 
ment of  the  plaintiff's  right  of  pasture. 

[This  Form  shall  be  sufficient  ichatever  the  nature  of  the 
right  of  jycisture  be.] 

The  plaintift's  claim  is  for  damages  for  [obstructing  the 
access  of  light  to  plaintiffs  house]. 

The  plaintiff's  claim  is  for  damages  for  the  infringe- 
ment of  the  plaintiff's  right  of  sporting. 

The  plaintifl's  claim  is  for  damages  for  the  infringe- 
ment of  the  plaintiff's  patent. 

The  plaintiff's  claim  is  for  damages  for  the  infringe- 
ment of  the  plaintiffs  copyright. 

The  plaintiff's  claim  is  for  damages  for  wrongfully 
using  [or  imitating]  the  plaintift's  trade  mark. 

The  plaintift's  claim  is  for  damages  for  breach  of  con- 
tract to  build  a  ship  [or  to  repair  a  house,  <C'C.] 

The  plaintiff's  claim  is  for  damages  for  breach  of  a 
contract  [to  emp)loy  the  plaintiff  to  build  a  ship,  (&c.] 

The  plaintifl's  claim  is  for  damages  [to  his  house,  trees, 
crops,  dhc,  caused  by  noxious  vapours  from  the  defendants 
factory,  or,  <^c.] 


SPECIAL   IXDORSEMENTS    UNDER   ORDER   II.  C97 

The  plaintiff's  claim  is  for  damages  from  nuisance  6_y     Forms. 

noise  from  the  defendant's  works  [or  stables,  or,  <i-c.~\  Apjiem/ixA. 

The  i:)laintiff's    claim   is   for  damages  for   loss  of  the       ■ 

•  •  •  Part  II 

lylaintijf" s  goods  in  the  defendant's  inn.  gee  jv,' 

Add  to  Indorsement : —  Inn- 

And  for  a  mandamus.  l^^^T' 

Mandamus. 

Add  to  Indorsement  : — 

And  for  an  injunction.  injunction. 

Add  to  Indorsement  where  claim  is  to  land,  or  to  estab- 
lish title  or  both. 

And  for  mesne  profits.  Mesne 

A  ud  for  an  account  of  rents  or  arreai's  of  rent.      -         proiits. 
And  for  breach  of  covenant  for  \re2xoirs\.  of  j.g,jt' 

Breach  of 
covenant. 

Section  V.  See.  v. 

Special  Indorsements  under  Order  II.,  Ride  3. 

1.  The  plaintiff's  claim  is  for  the  price  of  goods  sold. 
The  follo^ving  are  the  particulars  : — 
1873— 31st  December- 
Balance  of  account  for  butcher's 
meat  to  this  date,  . 
1874 — 1st  January  to  31st  March — 
Butcher's  meat  suj^iilied, 


f- 


£, 

s. 

d. 

35 

10 

0 

74 

5 

0 

109 

15 

0 

45 

0 

0 

1874— 1st  February.— Paid, 

Balance  due,       .  .  64  15     0 

2.  The  plaintiff's  claim  is  against  the  defendant  A.B.  as 
principal  and  against  the  defendant  CD.  as  surety,  for 
the  price  of  goods  sold  to  A.B.  The  following  are  the 
particulars  : — 

1874 — 2nd  Febitiary.  Guarantee  by  CD.  of  the  price 
of  woollen  goods,  to  be  supplied  to  A.B. 

2nd  February — To  goods,    . 
3rd  March — To  goods, 
17th  March— To  goods, 
5  th  April — To  goods, . 

202     1     0 

3.  The  plaintiff's  claim  is  against  the  defendant,  as 

2  H 


£ 

s. 

d. 

47 

15 

0 

105 

14 

0 

14 

12 

0 

34 

0 

0 

698  SPECIAL   INDORSEMENTS — CHARACTER   OF   PARTIES. 

Forms,     maker  of  a  promissory  note.    The  following  are  the  par- 
AppendixA.  ticulars : — 

PartlT  Promissory  note  for  £250,  dated    1st  January,  1874, 

Sec.  V.  '      made  by  defendant,  payable  four  months  after  date. 

Principal, £250 

Interest,        ..... 

4.  The  plaintiff's  claim  is  against  the  defendant  A.B. 
as  accejjtor/ and  against  the  defendant  CD.  as  drawer/ 
of  a  bill  of  exchange.  The  following  are  the  particu- 
lars : — 

Bill  of  exchange  for  .£500,  dated  1st  January,  1874, 
drawn  by  defendant  CD.  upon  and  accepted  by  defendant 
A.B.,  payable  three  months  after  date. 

Principal, .£500 

Interest,        ..... 

5.  The  plaintiff's  claim  is  for  principal  and  interest 
due  upon  a  bond.     The  following  are  the  particulars  : — 

Bond  dated  1st  Jamiary,  1873.  Condition  for  pay- 
ment of  £100  on  the  26th  December,  1873. 

Principal  due,        .  .  .  .     £50 

Interest,        ..... 

6.  The  plaintiff's  claim  is  for  principal  and  interest 
due  under  a  covenant.  The  following  are  the  particu- 
lars : — 

Deed  dated  covenant  to  pay  £100  and  interest. 

Principal  due,        .  .  .  .     £80 

Interest,         ..... 

Sec.  VI.  Section  VI. 

Indorsements  of  Character  of  Parties. 

Kxecutors.        The  plaintiff's  claim  is  as  executor  [or  administrator'] 

of  CD.,  deceased,  for,  d'c. 

The  plaintiff's  claim  is  against  the  defendant  A.B., 

as  executor  [or,  d'c.,]  of  CD.,  deceased,  for,  dc. 

The  plaintiff's  claim  is   against  the  defendant  A.B., 

as  executor  of  X.Y.,  deceased,  and  against  the  defendant 

CD.,  in  his  personal  ca])acity,  for,  etc. 
By  husband       The  claim  of  the  plaintiff  CD.,  is  as  executrix  of  X.  Y., 
and  wife,      deceased,    and    the    claim  of  the  plaintiff  A.B.   as  her 
executrix,    h^i^band,  for 

Against  The  claim  of  the  plaintiff  is  against  the  defendant  CD., 

liusband       as  executrix  of  the  defendant  CD.,  deceased,  and  against 
executrix.    ^^^^  defendant  A.B.,  as  her  husband,  for 


NOTICE  TO   THIRD   PARTIES.  699 

Tlie  plaintiff's  claim   is  as  trustee  under  the  bank-     Forms. 

iniptcy  of  A.B.,  for  Appendix  A. 

The  plaintiff's  claim  is  against  the  defendant  as  trustee       — — 
under  the  bankruptcy  of  A.B.,  for  Sec.  vr.' 

The  plaintiff's  claim  is   as  [or   the  plaintiffs  claim  is       _ 

against  the  defendant  as]  trustee  under  the  will  of  A.B.  ^,3^^-*^*^ '" 
[or  uiuler  the  settlement  upon  the  marriage  of  A.B.  and  ruptcy. 
:^.Y.,  his  wife].  _  _         ^  'T'-"^*^^^- 

The  plaintifi^'s  claim  is  as  public  officer  of  the  Public 

Bank,  for  °®*=«^''- 

The  plaintiff's  claim  is  against  the  defendant  as  public 
officer  of  the  Bank,  for 

The  plaintiff's  claim  is  against  the  defendant  A.B.  as 
principal,  and  against  the  defendant  CD.  as  public  officer 
of  the         Bank,  as  surety,  for 

The  plaintiff's  claim  is  against  the  defendant  as  heii'-at-  Heir  and 
law  of  A.B.,  deceased.  ^''''^''^^• 

The  plaintiff's  claim  is  against  the  defendant  CD.  as 
lieir-at-law,  and  against  the  defendant  E.F.  as  devisee  of 
lands  under  the  will  of  A.B. 

The  plaintiff's  claim,  is  as  well  for  the  Queen  as  for 
himself,  for 


APPENDIX  (B.)  AppemUxB. 


FOEM  1.  Form  1. 

Notice  hy  Defeiulant  to  Third  Party. 

187  .     [Here  put  the  letter  and  number i\ 
Kotice  filed  187  . 

In  the  High  Court  of  Justice  in  Ireland. 
Queen's  Bench  Division. 

Between  A.B.,  plaintiff, 
and 
CD.,  defendant. 
To  Mr.  X.Y. 

Take  notice,  that  this  action  has  been  brought  by  the 
plaintiff  against  the  defendant  [as  surety  for  JNI.JST.  upon 
a  bond  conditioned  for  payment  of  £2,000  and  interest 
to  the  plaintiff. 

The  defendant  claims  to  be  entitled  to  contribution 
from  you  to  the  extent  of  one-half  of  any  sum  which  the 
plaintiff  may  recover  against  him,  on  the  ground  that 
you  are  [his  co-surety  under  the  said  bond,  or,  also  surety 

2h  2 


Forral. 


TOO  NOTICE   TO   THIRD  PARTIES, 

Forms,     for  the  said  M.N.  in  respect  of  the  said  matter,  under 
AppendixB,  another  Ijond  made  by  you  in  favour  of  the  said  plaintiti, 
dated  the  day  of  ,  a.d.]] 

Or  [as  acceptor  of  a  bill  of  exchange  for  £500,  dated 
the  day  of  ,  a.d.  ,  drawn  by  you 

before  and  accepted  by  the  defendant,  and  payable  three 
months  after  date. 

The  defendant  claims  to  be  indemnified  by  you  against 
liability  under  the  said  bill,  on  the  ground  that  it  was 
accepted  for  your  accommodation.] 

Or  [to  recover  damages  for  a  bi-each  of  a  contract  for 
the  sale  and  delivery  to  the  plaintiff  of  1,000  tons  of  coal. 
The  defendant  claims  to  be  indemnified  by  you  against 
liability  in  resjiect  of  the  said  contract,  or  any  breach 
thereof,  on  the  ground  that  it  was  made  by  him  on 
your  behalf  and  as  your  agent.] 

And  take  notice  that,  if  you."\\T.sli  to  dispute  the  plaintifl''s 
claim  in  this  action  as  against  the  defendant  CD.,  you 
must  cause  an  appearance  to  be  entered  for  yoxi  within 
eight  days  after  service  of  this  notice. 

In  defaidt  of  your  so  appearing,  yoii  will  not  be  entitled 
in  any  fixture  proceeding  between  the  defendant  CD. 
and  yourself  to  dispute  the  validity  of  the  judgment  in 
this  action,  whether  obtained  by  consent  or  otherwise. 

(Signed)         E.T. 
Or, 
X.Y., 
Solicitor  for  the  defendant, 

E.T. 

Ajipearance  to  be  entered  at 


Form  2.  FoEM  2. 

187  .  [Here  jmt  the  letter  and  number.'] 
In  the  High  Court  of  Justice  in  Ireland. 
Queen's  Bench  Division. 

Between  A.B.,  plaintifT, 
and 
CD.,  defendant. 

The  plaintiff  confesses  the  defence  stated  in  the  para- 
grajdi  of  the  defendant's  statement  of  defence  [or,  of  the 
defendant's  further  statement  of  defence]. 


NOTICE   OF   PAYMENT   INTO   COURT.  701 

FOEM  3.  ^°™3- 

187  .   \_Here  2Jut  the  letter  and  nuinler.']  Appendix B. 

In  the  High  Court  of  Justice  in  Ireland.  Form  i. 

Division. 
Between  A.B.,  plaintiiT, 
and 
CD.,  defendant. 
The  particulars  of  the  plaiiitiif 's  com]ilaint  herein,  and 
of  the  relief  and  remedy  to  which  he  claims  to  be  entitled 
appear  by  the  indorsement  upon  the  writ  of  summons. 


Form  4.  Form  4. 

"  To  the  A\'ithin-named  X.  Y. 
"  Take  notice  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  be  liable  lo  have  judgment 
"  given  against  you  in  your  absence. 

"  Appearances  are  to  be  entered  at  ." 


Form  5.  Form  5. 

Xotice  cj  Fipnent  into  Court. 

187  .     B.  No. 
In  the  High  Court  of  Justice  in  Ireland. 
Q.B.  Division. 

A.B.  V.  CD. 
Take  notice  that  the  Defendant  has  paid  into  Court 
£  ,  and  says  that  that  sum  is  enoiigh  to  satisfy  the 

plaintiff's  claim  [or  the  plaintiff's  claim  for,  etc.] 
To  Mr.  X.Y. 

the  Plaintiff's  Solicitor. 

Defendant's  Solicitor, 


Form  6.  Form  6. 

Acceptance  of  Sum  paid  into  Court. 

187  .     B.  No. 
In  the  High  Court  of  Jiistice  in  Ireland. 
Q.B.  Division. 

A.B.  v.  CD. 
Take  notice  that  the  Plaintiff  accepts  the  sum  £ 
paid  by  yoii  into  Court  in   satisfaction  of  the  claim  in 
respect  of  which  it  is  paid  in. 


702  INTERROGATORIES. 

Forms.  FoRM   7. 

Appendi-'-B  Form  of  Interrogatories. 

"  '  187  .     B.  No. 

Form  7.  j^^  ^j^^  jj-^j^  q^^^^  ^f  Justice  in  Ireland. 

Division. 
Between  A.B.,  Plaintiff, 
and 
CD.,  E.F.,  and  G.H.,  Defendants. 
Interi'ogatories  on  behalf  of  the  above-named  \j)laintiff, 
or  defendant  CD.]    for  the   examination   of  the  above- 
named  \defendants  E.F.  and  G.H.,  oy  plaintiff  ]. 

1.  Did  not,  &c. 

2.  Has  not,  &c. 

&c.         &c.         &c. 

\The  dejendant  E.F.  is  required  to  answer  the  in- 
terrogatories numbered  .] 

\_The  defendant  G.H.  is  required  to  answer  the  in- 
terrogatories numbered  .] 


Form 


Form  8.  Form  8. 

Form  of  Answer  to  Interrogatories. 

187  .     B.  No. 
In  the  High  Court  of  Justice  in  Ireland. 
Division. 
Between  A.B.,  Plaintiff, 
and 
CD.,  E.F.,  and  G.H.,  Defendants. 
The  answer  of  the  above-named  defendant  E.F.  to  the 
interrogatories  for   his  examination  by  the  above- 
named  plaintiff. 
In  answer  to  the   said  interrogatories,  I,  the  above- 
named  E.F.,  make  oath  and  say  as  follows : — 


Form  9. 
Form  of  Affidavit  as  to  Documents. 

187  .     B.  No. 
In  the  High  Court  of  Justice  in  Ireland. 
Division. 
Between  A.B.,  Plaintiff, 
and 
CD.,  Defendant. 
I,  the  above-named  defendant  CD.,  make  oath  and  say 
as  follows  : — 

1.  I  have  in  my  possession  or  power  the  documents 


AFFIDAVIT   OF  DOCUMENTS.  703 

relating  to  the  matters  in  question  in  this  suit  set  forth     Forms, 
in  the  iirst  and  second  parts  of  the  first  schedule  hereto.  AppendizB. 

2.  I  object  to  produce  the  said  documents  set  forth  in       

the  second  part  of  the  said  first  schedule  hei'eto. 

3.  That  [Here  state  upon  what  grounds  the  ohjectiou 
is  made,  and  verify  the  facts  as  far  as  may  he\. 

4.  I  have  had,  but  have  not  now,  in  my  possession  or 
power,  the  documents  relating  to  the  matters  in  question 
in  this  suit  set  forth  in  the  secoad  schedule  hereto. 

5.  The  last-mentioned  documents  were  last  in  my  pos- 
session or  power  on  [State  wheii\. 

6.  That  [Here  state  what  has  become  of  the  last-mentioned 
documents,  and  in  whose  possession  they  noio  are\ 

7.  According  to  the  best  of  my  knowledge,  information, 
and  belief,  I  have  not  now,  and  never  had  in  my  posses- 
sion, custody,  or  power,  or  in  the  possession,  custody, 
or  power  of  my  solicitors  or  agents,  solicitor  or  agent, 
or  in  the  possession,  custody,  or  power,  of  any  other  persons 
or  person  on  my  behalf,  any  deed,  account,  book  of 
account,  voucher,  receipt,  letter,  memorandum,  paper,  or 
writing,  or  any  copy  of  or  extract  from  any  such  docu- 
ment, or  any  other  document  whatsoever  relating  to  the 
matters  in  question  in  this  feuit,  or  any  of  them,  or 
wherein  any  entry  has  been  made  relative  to  such 
matters,  or  any  of  them,  other  than  and  except  the 
documents  set  forth  in  the  said  first  and  second  schedules 
hereto. 


Form   10.  Form  10 

Form,  of  Notice  to  produce  Documents. 
In  the  High  Court  of  Justice  in  Ireland. 
Q.B,  Di\'isiou. 

A.B.  V.  CD. 
Take  notice,  that  the  [plainti^  or  defendant']  requires 
you  to   produce  for   his   inspection  the  following   docu- 
ments referred  to  in  your  [state7nent  of  claim,  or  defence, 
or  affidavit,  dated  the  day  of  a.d.  ]  : — 

Describe  documents  required. 
X.Y., 

Solicitoi"  to  the 
To  Z., 

Solicitor  for 


704. 


NOTICE   TO   ADMIT  DOCUMENTS. 


Forms.  FoRM  11. 

Appendix  B.  Form  of  Notice  to  inspect  Documents. 

Form  11.  in  tlie  High  Court  of  Justice  in  Ireland. 

Q.B.  Division. 

A.B.  V.  CD. 
Take  notice,  that  you  can  inspect  the  documents  men- 
tioned in  your  notice  of  the         day  of  a.d. 
[exce2Jt  the  deed  numbered          in  that  notice']  at  my  office 
on  Thursday  next,  the              instant,  between  the  hours 
of  12  and  4  o'clock. 

Or,  that  the  [plaint[ff  or  defendant]  objects  to  giving 
you  inspection  of  the  documents  mentioned  in  your  notice 
of  the         day  of  a.d. 

\state  the  ground]  : — 


on  the  ground  that 


X.Y., 

Solicitor  to  the 


ToZ., 

Solicitor  for 


FOKM  12. 
Form  of  Notice  to  admit  Documents. 

In  the  High  Court  of  Justice  in  Ireland. 
Division. 

A.B.  V.  CD. 

Take  notice,  that  the  plaintiff  [or  defendant']  in  this 
cause  proposes  to  adduce  in  evidence  the  several  docu- 
ments hereunder  specified,  and  tliat  the  same  may  be 
inspected  by  the  defendant  [or  jylainti^],  his  solicitor  or 
agent,  at  ,  on  ,  between  the  hours  of  ; 

and  the  defendant  [or  plaintiff]  is  hereby  required, 
within  forty-eight  hours  from  the  last  mentioned  hour, 
to  admit  that  such  of  the  said  documents  as  are  specified 
to  be  originals  were  respectively  written,  signed,  or 
executed,  as  they  purpoi-t  respectively  to  have  been ; 
that  such  as  are  specified  as  cojnes  are  true  copies  ;  and 
such  documents  as  are  stated  to  have  been  served,  sent,  or 
delivered,  were  so  served,  sent,  or  delivered  respectively ; 
saving  all  just  exceptions  to  tlie  admissibility  of  all  such 
documents  as  evidence  in  this  cause. 

Dated,  &c. 

To  E.F.,  solicitor  [or  agent']  for  defendant  [or  plaintiff 
G.H.,  solicitor  [or  agent]  for  plaintifi"  [or  defendant 


NOTICE   TO  ADMIT  DOCU-AIEXTS. 


'05 


[Here   describe    the   documents,  the  manner  of  dobuj     Forms. 
ivldch  may  be  as  follows : — ]  AppemiixB. 

Originals. 


Form  12. 


Description  of  Document. 


Deedof  covenant  between  A.  B.  and  CD.,  first  part, 

and  E.F.,  second  part. 
Indenture  of  lease  from  A.B.  to  CD., 
Indenture  of  release  from  A.B.,C.D.,  first  part,  &c., 
Letter — defendant  to  plaintiff,      .... 
Policy  of  insurance  on  goods  by  ship  Isabella  on 

voyage  from  Oporto  to  Loudon. 
Memorandum  of  agreement  between  CD.,  captain 

of  said  ship,  and  E.F. 
Bill  of  exchange  for  £100  at  three  months,  drawn 

bv  A.B.,  on  and  accepted  by  CD.,  indorsed  bv 

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. 


Copies. 


Description  of  Documents. 


Dates. 


Original  or  Duplicate  served, 

sent,  or  delivered,  when, 

how,  and  by  whom. 


Register  of  baptism  of  A.B. 
in  the  parish  of  X. 

Letter — plaintiff  to  defend- 
ant. 

Notice  to  produce  papers,    . 


Record  of  a  judgment  of  the 
Court  of  Queen's  Bench 
in  an  action  J.S.  v.  J.N. 

Letters  Patent  of  King- 
Charles  II.  in  [  J 


Jan.  1,  1848. 
Feb.  1,  1848, 
March  1, 1848, 


Trinity  Term, 
10th  Vic. 

Jan.  1,  1680. 


Sent  by  General  Post, 
Feb.  2,  1848. 

Served  March  2,  1848, 
on  defendant's  attorney 
bvE.F.,  of 


Form  13. 

Setting  down  Special  Case. 

187     .     B.  No. 
In  the  High  Court  of  Justice  in  Ireland. 
Division. 
Between  A.B.,  Plaintiff, 
and 
CD.  and  others,  Defendants. 
Set   down  for  argument   the  special  case  filed  in  this 
action  on  the  ,187 

X.Y.,  Solicitor  for 

i:  n  3 


Form  13. 


706 


CERTIFICATE   FOR   SPECIAL   JURY. 


Forms. 

Ajipendir  B. 
rorm  14. 


Form  14. 
Form  of  Notice  of  Trial. 
lu  the  High  Court  of  Justice  iu  Ireland. 
Division. 

A.B.  V.  CD. 
Take  notice  of  trial  of  this  action  \or   of  the,  issues 
in  this  action  ordered  to  he  tried']  by  a  Judge  and  Jury  [or 
as  the  case  vuty  he]  in  the  County  of  Kildai-e,  [or  as  the 
case  may  he]  for  the  day  of  next. 

X.Y.,  plaintiff's  Solicitor  [or  as  the  case  may  he]. 
Dated 
To  Z.,  defendant's  Solicitor  \or  as  the  case  may  he\. 


Form  15. 


Form  15. 
Form  of  Certificate  of  Officer  after  Trial  hy  a  Jury. 
30th  November,  1878.  187     .     No. 

In  the  High  Court  of  Justice  in  Ireland. 
Division. 
Between  A.B.,  Plaintiff", 
and 
CD.,  Defendant. 
I  certify  that  this  action  was  tried  before  the  Honorable 
Mr.  Justice  and  a  special  jury  of  the  county  of 

on  the  12th  and  13th  days  of  Febiaiary,  1878. 
The  jury  found  \_State  findings]. 

The  Judge  directed  that  judgment  shoidd  be  entered 
for  the  plaintiff'  for  £  with  costs  of  summons  [or 

as  the  case  mail  he]. 

^     ^  A.B., 

[Title  of  Officer.] 


Appendix  C. 
Pleadings. 

Form  1. 
Account 

stated. 


APPENDIX  (C) 

rieadings. 

No.  1. 

Account  Stated. 


187 


B.  No. 


Claim. 


In  the  High  Court  of  Justice  in  Ireland. 
Queen's  Bench  Division. 

Writ  issued  3rd  August,  1877. 

Between  A.B Plaintiff, 

and 
E.F.     .         .         .         .         •     Defendant. 

Statement  -of  Claim. 
1.  Between    the    1st    of    January  and    the    28t,h    of 


ADMINISTRATION   OF   ES1ATE.  707 

February,  1877,  the  plaintiff  supplied   to  the  defendant     Forms, 
various    articles  of  drapery ;   and  accounts   and  invoices  Appendix  c. 
of  the    goods  so  supplied,    and  their  prices,    were  from  pieadings. 

time  to  time  furnished  to  the  defendant,  and  payments       

on  account  were  from  time  to  time  made  by  the  defend- 
ant. 

2.  On  the  28th  February,  1877,  a  balance  remained 
due  to  the  plaintiff  of  £75  9s.,  and  an  account  was  on 
that  day  sent  by  the  plaintiff  to  the  defendant  showing 
that  balance. 

3.  On  the  1st  of  March  following,  the  plaintifi^'s 
collector  saw  the  defendant  at  his  house,  and  asked  for 
payment  of  the  said  balance,  and  the  defendant  then  paid 
him  by  cheque  £25  on  account  of  the  same.  The  residue 
of  the  said  balance,  amounting  to  £50  9*.  has  never  been 
paid. 

The  plaintiff  claims  £ 

The  plaintiff  proposes  that  this  action  should  be  tried 
in  [the  county  of  Kildare\. 


No.  2.  Form  2. 

Administration  of  an  Estate.  Adminis- 

[  187     .     B.No.233.]Sair°^ 

In  the  High  Court  of  Justice  in  Ireland. 
Chancery  Division. 

\_Name  of  Judge.'\ 

Writ  issued  22nd  January,  1878. 
In  the  matter  of  the  estate  of  A.B.,  deceased. 
Between  E.F.         .         .         .     Plaintiff, 
and 
G.H.        .  .         .     Defendant. 

Statement  of  Claim. 

1.  A.B.  of  K.,  in  the  county  of  L.,  died  on  the  1st  of  Claim. 
July,  1875,  intestate.    The  defendant  G.H.  is  the  adminis- 
trator of  A.B. 

2.  A.B.  died  entitled  to  lands  in  the  said  county  for  an 
estate  of  fee  simple,  and  also  to  some  other  real  estate  and 
to  personal  estate.  The  defendant  has  entered(«)  into 
possession  of  the  real  estate  of  A.B.,  and  received  the  rents 
thereof.  The  legal  estate  in  such  real  estate  is  outstan- 
ding in  mortgagees  under  mortgages  created  by  tha 
intestate. 

(a)  Word  "into"  omitted  in  this  as  in  tlie  Euglisli  form. 


Form  2. 


70S  ADMINISTRATION   OF   ESTATES, 

Forms.  3.  A.B.  was  never  married ;  he  had  one  brother  only, 

AppendixC.  who  pre-deceased  him  without  having  been  married,  and 
Pleadings,  two  sisters  only,   both  of  whom  also  pre-deceased  him, 
namely,  M.iST.  and   P.Q.     The  plaintiii'  is  the  only  child 
of  M.N.,  and  the  defendant  is  the  only  child  of  P.Q. 
Tlie  plaintiff  claims — 

1.  To  have  the  real  and  personal  estate  of  A.B. 
administered  i}i  this  Court,  and  for  that  purpose 
to  have  all  proper  directions  given  and  accounts 
taken. 

2.  To  have  a  receiver  appointed  of  the  rents  of  his 
real  estate. 

3.  Such  further  or  other  relief  as  the  nature  of  the 
case  may  require. 


L  187     .     B.  No.  233.] 

In  the  High  Coui^t  of  Justice  in  Ireland. 
Chancery  Di\T.sion. 
\^Name  of  Judge.'] 

In  the  matter  of  the  estate  of  A.B.,  deceased. 
Between  E.F.         .         .         Plaintiff, 
and 
G.H.        .         .         Defendant. 

Statement  of  Defence. 

Defence.  !•  The  plaintiff  is  an  illegitimate  child  of  M.N,     She 

was  never  married. 

2.  The  intestate  was  not  entitled  to  any  real  estate 
at  his  death.     Tlie  lands  of  [  ]  situate 

in  [  ]  were  by  the  marriage    settlement    of  in- 

testate, bearing  date  the  day  of  settled  upon 

him  for  his  life  only,  with  remainder  in  the  event  of  his 
not  having  children  (which  event  happened),  to  the  said 
M.N.  and  P.Q.  as  tenants  in  common  in  tail — with  cross 
remainders  between  them — and  the  said  M.N.  died  un- 
married in  the  lifetime  of  P.Q. 

3.  The  personal  estate  of  A.  B.  was  not  sufficient  for  the 
payment  of  his  debts,  and  has  all  been  applied  in  pay- 
ment of  liis  funeral  and  testamentary  expenses,  and  part 
of  his  debts. 


ADMINISTRATION    OF   ESTATES.  709 

Reply.  Forms. 

[  187       .       B.  No.  233.]  AppendixC. 

In  the  High  Court  of  Justice  in  Ireland.  Pkadmys. 

Chancery  Division.  Pom^  2 

[Xante  of  Judge.'\  Reply. 

In  the  matter  of  the  estate  of  A.B.,  deceased. 
Between  E.F.         .         .         Plaintiff, 
and 
G.H.        .  .  Defendant. 

The  plaintiff  joins  issue  Avith  the  defendant  upon  his 
defence. 


No.  3.  Form  3. 

Administration  of  Estate. 

[  187     .     B.  No.  234.] 

In  tlie  High  Court  of  Justice  in  Ireland. 
Chancery  Division. 
[Xame  of  Judge.] 

Writ  issued  2nd  January,  1878, 
In  the  matter  of  the  estate  of  A.B.,  deceased. 
Between  E.F.         .         .         Plaintiff, 
and 
G.H.     .  .  .         Defendant. 

Statement  of  Claim. 

1.  A. B.  of  K.,  in  the  county  of  L.,  duly  made  his  last  Claim, 
will,  dated    the  1st    day   of  March,    1873,   whereby    he 
appointed  the    defendant  and  M.N.   (who  died   in   the 
testator's  lifetime)   executors  thereof,  and  devised    and 
bequeathed  his  real  and  personal  estate  to  and  to  the  use 

of  his  executors  in  trust,  to  pay  the  rents  and  income 
thereof  to  the  plaintiff  for  his  life  ;  and  after  his  decease, 
and  in  default  of  his  having  a  son  who  should  attain  2 1 , 
or  a  daughter  who  should  attain  that  age,  or  many, 
upon  trust  as  to  his  real  estate  for  the  person  who  would 
be  the  testator's  heii--at-law,  and  as  to  his  personal 
estate  for  the  persons  who  would  be  the  testator's  next  of 
kin  if  he  diecl  intestate  at  the  time  of  the  death  of  the 
plaintiff,  and  such  failure  of  his  issue,  as  aforesaid. 

2.  The  testator  died  on  the  1st  day  of  July,  1873, 
and  his  will  was  proved  by  the  defendant  on  the  4th  of 
October,  1873.     The  plaintiff  has  not  been  married. 

3.  The  testator  was  at  his  death  entitled  to  real  and 
personal  estate ;  the  defendant  entered  into  the  receipt 
of  the  rents  of  the  real  estate  and  got  in  the  personal 
estate ;  he  has  sold  some  part  of  the  real  estate. 


710 


ADMINISTRATION   OF   ESTATES. 


Forms. 

AppendixC. 
Pleadings. 

Form  3. 


Defence. 


Keply. 


Tlie  ijlaintiff  claims — 

1.  To  have  tlie  real  and  personal  estate  of  A.B. 
administrated  in  this  coxirt^  and  for  that  purpose 
to  have  all  proj)er  directions  given  and  accounts 
taken. 

2.  Such  further  or  other  relief  as  the  nature  of  the 
case  may  require. 


[             187  .  B.  No.  234.] 
In  the  High  Court  of  Justice  in  Ireland. 
Chancery  Division. 
\_Name  of  Judge.  ^^ 
In  the  matter  of  the  estate  of  A.B.  deceased. 
Between  E.F.             ....     Plaintiff, 
and 
G.H Defendant. 

Statement  of  Defence. 
1.  A.B.'s  will  contained  a  charge  of  debts;  he  died 
insolvent ;  he  was  entitled  at  his  death  to  some  real 
estate  which  the  defendant  sold,  and  which  produced  the 
net  sum  of  .£4,300,  and  the  testator  had  some  personal 
estate  which  the  defendant  got  in  and  which  produced 
the  net  sum  of  £1,204.  The  defendant  applied  the 
whole  of  the  said  sums  and  the  sum  of  £84  which  the 
defendant  received  from  rents  of  the  real  estate  in  the 
payment  of  the  funeral  and  testamentary  expenses  and 
som.e  of  the  debts  of  the  testator.  The  defendant 
made  up  his  accounts  and  sent  a  copy  thereof  to  the 
plaintiff  on  the  10th  of  January,  1875,  and  offered  the 
plaintiff  free  access  to  the  vouchex-s  to  verify  such 
accounts,  but  he  declined  to  avail  himself  of  the  defen- 
dant's offer.  The  defendant  submits  that  the  plaintiff 
ought  to  pay  the  costs  of  this  action. 


[  187  .  B.  No.  234.] 

In  the  High  Court  of  Justice  in  Ireland. 
Chancery  Division. 
[Aame  ofJud(je.'\ 
In  the  matter  of  the  estate  of  A.B.,  deceased. 

Between  E.F Plaintiff; 

and 
G.H.     .         .         .         .         .     Defendant. 

Rejdy. 
The  plaintiff  joins  issue  with  the  defendant  upon  his 
defence. 


ADMINISTRATION   OF   ESTATES.  711 

No.   4.  Forms. 

Administration  of  Estate.  AppmcUxC. 

[  187  .  B.  No.  235.]  ^'^^«- 

In  the  High  Court  of  Justice  in  Ireland.  ^o^^  *■ 

Chancery  Division. 
\_Xame  of  Judge.'\ 

In  the  matter  of  the  estate  of  W.H.  deceased. 
Writ  issued  2nd  January,  1878. 
Between  A.B.  and  C.  his  wife,  .     Plaintiffs, 

and 
E.F.  and  G.H.,      .  .         .     Defendants. 

Statement  of  Claim. 
1.  W.H.  of  H.,  in  the  county  of  L.,  duly  made  his  last  Claim, 
"will,  dated  the  19th  day  of  March,  18G1,  whereby  he 
appointed  the  defendants  the  executors  thereof,  and 
bequeathed  to  them  all  his  personal  estate  in  trust,  to 
call  in,  sell,  and  convei't  the  same  into  money,  and 
thereout  to  pay  his  debts  and  funeral  and  testamen- 
tary expenses,  and  to  divide  the  ultimate  surplus  into 
three  shares,  and  to  pay  one  of  such  three  shares  to  each 
of  his  two  children,  T.H.  and  E.,  the  wife  of  E.W.,  and 
to  stand  possessed  of  the  remaining  thii'd  share  upon 
trust  for  the  children  of  the  testator's  son,  J.H.,  in  equal 
shares,  to  be  divided  among  them  when  the  youngest  of 
such  children  should  attain  the  age  of  21  years.  And 
the  testator  devised  his  real  estates  to  the  defendants 
upon  trust  until  the  youngest  child  of  the  said  J.  H. 
should  attain  the  age  of  21  years  to  pay  one  third  part 
of  the  rents  thereof  to  the  said  T.  H.,  and  one  third 
part  thereof  to  the  said  E.  W.,  and  to  accumulate  the 
remaining  third  pai't  by  way  of  compound  iateiest,  and 
so  soon  as  the  youngest  child  of  the  said  J.  H.  should 
attain  the  age  of  21  years,  to  sell  the  said  real  estates, 
and  out  of  the  pi'oceeds  of  such  sale  to  pay  the  sum  of 
XI, 000  to  the  said  T.  H.,  and  to  invest  one  moiety  of  the 
residue  in  manner  therein  mentioned,  and  stand  possessed 
thereof  in  trust  to  p»v  the  income  thereof  to  the  said  E., 
the  wife  of  the  said  E.W.,  during  her  life  for  her  separate 
use,  and  after  her  death  for  her  children,  the  interests 
of  such  children  being  contingent  on  their  attaining  the 
age  of  21  years,  and  to  divide  the  other  moiety  of  such 
proceeds  of  sale  and  the  accumulations  of  the  thii-d  share 
of  rents  thereinbefore  directed  to  be  accumulated  among 
such  of  the  children  of  the  said  J.  H.  as  should  be  then 


712  ADMINISTRATION   OF    ESTATES. 

Forms,     living,  and  the  issue  of  such  of  them  as  shoukl  l)e  then 
AppendixC.  dead,  in  equal  shares  per  stirpes. 
Pleadings.        2.  The  testator  died  on  the  25th  day  of  April,  1873, 

and  his  said  will  was  proved  by  the  defendants  in  the 

^°™'^-       monthof  June,  1873. 

3.  The  testator  died  possessed  of  one  third  share  in  [a 
leasehold  colliery  called  the  Paradise  Collierij,  and  in  the 
engines,  machinery ,  stock  in  trade,  book  debts,  and  effects 
belonging  thereto.  He  was  also  entitled  to  real  estate,  and 
other  liersonal  estate]. 

4.  The  testator  left  T.  H.  and  E.,  the  wife  of  E.  W., 
him  surviving.  J.  H.  had  died  in  the  testator's  lifetime, 
leaving  four  children,  and  no  more.  The  plaintiff  C.  B. 
is  the  youngest  of  the  children  of  J.  H.,  and  attained  the 
age  of  21  years  on  the  1st  of  June,  1871.  The  other  three 
children  of  J.  H.  died  without  issue  in  the  lifetime  of  the 
testator. 

5.  E.  W.  has  several  children,  but  no  child  has  attained 
the  age  of  2 1  years. 

6.  T.  H.  is  the  testator's  heir-at-law. 

7.  The  defendants  have  not  called  in,  sold, and  convei-ted 
into  money  the  whole  of  the  testator's  personal  estate, 
but  have  allowed  a  considerable  part  thereof  to  remain 
outstanding ;  and  in  particular  the  defendants  have  not 
called  in,  sold,  or  converted  into  money  the  testator's 
interest  in  the  said  colliery,  but  have,  from  the  death  of 
the  testator  to  the  present  time,  continued  to  work  the 
same  in  partnership  with  other  persons  interested  tlierein. 
The  estate  of  the  testator  has  sustained  considerable  loss 
by  reason  of  such  interest  not  having  been  called  in,  sold, 
or  converted  into  money. 

8.  The  defendants  did  not  vipon  the  death  of  the  testator 
sell  the  testator's  furniture,  plate,  linen,  and  china,  but 
allowed  the  testator's  widow  to  possess  herself  of  a  great 
part  thereof,  without  accounting  for  the  same,  and  the  same 
has  thereby  been  lost  to  the  testator's  estate. 

9.  The  defendants  have  not  invested  the  share  of  the 
testator's  residuary  personal  estate  given  by  his  will  to  the 
children  of  the  testator's  son  J.  H.,and  have  not  accumu- 
lated one-third  of  the  rents  and  jirolits  of  his  real  estate 
as  directed  by  the  said  will,  but  have  mixed  the  same  share 
and  rents  with  their  own  moneys,  and  employed  them 
in  business  on  their  own  accoimt. 

10.  The  defendants  have  sold  part  of  the  real  estates 
of  the  testator,  but  a  considerable  })art  thereof  remains 
i;nsold. 

1 1.  A  receiver  ought  to  be  ajipointed  of  the  outstanding 


ADMINISTRATION   OF   ESTATES. 


Forms. 


Form  4. 


personal  estate  of  the  testator  and  the  rents  and  profits 

of  his  real  estate  remaining  unsold.  AppemikcC. 

The  plaintiffs  claim  : —  Pkadinys. 

1.  That  the  estate  of  the  said  testator  may  be  adminis- 
tered, and  the  trusts  of  his  will  carried  into  execution 
under  the  direction  of  the  court. 

2.  That  it  may  be  declared  that  the  defendants  by 
cai'rying  on  the  business  of  the  said  colliery  instead  of 
realising  the  same,  have  committed  a  breach  of  trust,  and 
that  the  parties  interested  in  the  testator's  estate  are 
entitled  to  the  value  of  the  testator's  interest  in  the  said 
partnership  property  as  it  stood  at  the  testator "s  death, 
with  interest  thereon,  or  at  their  election  to  the  profits 
which  have  been  made  by  the  defendants  in  respect 
thereof  since  the  testator's  death,  whichever  shall  be  found 
most  for  their  benefit. 

3.  That  an  account  may  be  taken  of  the  interest  of  the 
testator  in  the  said  colliery,  and  in  the  machinery,  book 
debts,  stock,  and  effects  belonging  thereto,  according  to 
the  value  thereof  at  the  testator's  death,  and  an  account 
of  all  sums  of  money  received  by  or  by  the  order,  or  for 
the  use  of  the  defendants^  or  either  of  them,  on  account 
of  the  testator's  interest  in  the  said  colliery,  and  that 
the  defendants  may  be  ordered  to  make  good  to  the  estate 
of  the  testator  the  loss  arising  from  their  not  having 
realised  the  interest  in  the  testator  in  the  said  colliery 
within  a  reasonable  time  after  his  decease. 

4.  That  an  account  may  be  taken  of  all  other  personal 
estate  of  the  testator  come  to  the  hands  of  the  defendants, 
or  either  of  them,  or  to  the  hands  of  any  other  person 
by  their  or  either  of  their  order,  or  for  their  or  either  of 
their  use^  or  which,  but  for  their  wilful  neglect  or  default, 
might  have  been  so  received  ;  and  an  account  of  the  rents 
and  profits  of  the  testator's  real  estate,  and  the  moneys 
arising  from  the  sale  thereof,  possessed  or  received  by  or 
by  the  order,  or  for  the  use  of  the  defendants,  or  either 
of  them. 

5.  That  the  real  estate  of  the  testator  remaining  unsold 
may  be  sold  under  the  direction  of  the  court. 

6.  That  the  defendants  may  be  decreed,  at  the  election 
of  the  parties  interested  in  the  testator's  estate,  either  to 
pay  interest  at  the  rate  of  £5  per  cent,  per  annum  upon 
such  moneys  belonging  to  the  estate  of  the  testator  as 
they  have  improperly  mixed  with  their  own  moneys  and 
employed  in  business  on  their  own  account,  and  that  half- 
yearly  rests  may  be  made  in  taking  such  account  as 
respects  all  moneys  which  by  the  said  will  were  directed 


714  ADMINISTRATION   OF   ESTATES. 

Forms,     to  be  accumulated,  or  to  account  for  all  profits  by  the 
Appendix  C.  employment  in  their  business  of  the  said  trust  money. 
Pleadinr/3.        7.  That  a  receiver  may  be  a2)pointed  of  the  outstanding 
^  personal  estate  of  the  testator,  and  to  receive  the  rents 

r  orm  4  .  .    . 

and  profits  of  his  real  estate  remaining  unsold. 

8.  Such  further  or  other  relief  as  the  nature  of  the  case 
may  requh-e. 


[  187     .     B.  235.] 

In  the  High  Court  of  Justice  in  Ireland. 
Chancery  Division. 
[Name  of  Judge.'] 
Between  A.B.  and  C.  his  wife    .    Plaititiffs, 
and 
E.F.  and  G.H.  .    Defendants. 

Statement  of  Defence  of  the  ahove-named  Defendants. 
Defence.  1.    Shortly   after    the    decease    of    the    testator,    the 

defendants,  as  his  executors,  possessed  themselves  of  and 
converted  into  money  the  testator's  personal  estate,  except 
his  share  in  the  colliery  mentioned  in  the  plaintiif 's  state- 
ment of  claim.  The  money  so  arising  were  applied  in 
payment  of  part  of  the  testator's  debts  and  funeral  and 
testamentary  expenses,  but  such  moneys  were  not  suffi- 
cient for  the  payment  thereof  in  full. 

2.  The  Paradise  colliery  was,  at  the  testatoi-'  decease, 
worked  by  him  in  partnership  with  J.Y.,  and  W.Y.,  and 
T.  Y.,  both  since  deceased.  No  written  articles  of  partner- 
ship had  been  entered  into,  and  for  many  years  the 
testator  had  not  taken  any  part  in  the  management  of 
the  said  colliery,  but  it  was  managed  exclusively  by  the 
other  pai-tners,  and  the  defendants  did  not  know  with 
certainty  to  what  share  therein  the  testator  was  entitled. 

3.  Ujion  the  death  of  the  testator,  the  defendants 
endeavoured  to  ascertain  the  value  of  the  testator's  share 
in  the  colliery,  but  the  other  partners  refused  to  give 
them  any  information.  The  defendants  thereupon  had  the 
books  of  the  colliery  examined  by  a  competent  accountant, 
but  they  had  been  so  carelessly  kept  that  it  was  im])ossible 
to  obtain  from  them  any  accurate  information  respecting 
the  state  of  the  concern ;  it  was,  however,  ascertained  that 
a  considei"able  sum  was  due  to  the  testator's  estate. 

4.  Between  the  death  of  the  testator  and  the  beginning 
of  the  year  1874,  the  defendants  made  frequent  a}iplica- 
tions  to  J.\".,  W.Y.,  and  T.Y.  for  a  settlement  of  the 


ADMINISTRATION    OF   ESTATES.  715 

accounts  of  the  collieiy.     Sucli  applications  having  proved     Forms, 
fruitless,  the  defendants,  in  January,  1874,  filed  their  bill  AppendixC. 
of  complaint  in  the  Court  of  Chancery  against  J.  Y.,  W.^ .,  pleadings. 
and  T.Y.,  praying  for   an    account  of  the   partnership  ~ 

dealings  between  the  testator  and  the  defendants  thereto, 
and  that  the  partnership  might  be  wound  up  iinder  the 
direction  of  the  Comi;. 

5.  The  said  T.  Y.  died  in  the  year  1874,  and  the  suit  was 
revived  against  J.  P.  and  T.S.,  his  executors.  The  suit  is 
still  pending. 

6.  As  to  the  Paradise  colliery,  the  defendants  have 
acted  to  the  best  of  their  judgTuent  for  the  benefit  of  the 
testator's  estate,  and  they  deny  being  under  any  liability 
in  respect  of  the  said  colliery  not  having  been  realised. 

They  submit  to  act  under  the  direction  of  the  Court 
as  to  the  further  prosecution  of  the  said  suit  and  generally 
as  to  the  realisation  of  the  testator's  interest  in  the  said 
colliery. 

7.  With  respect  to  the  statements  in  the  eighth  para- 
graph of  the  statement  of  claim,  the  defendants  say,  that 
upon  the  death  of  the  testator,  they  sold  the  whole  of  his 
fiu'uiture,  linen,  and  china,  and  also  all  his  plate,  except 
a  few  silver  teaspoons  of  very  small  value,  which  were 
taken  possession  of  by  his  widow,  and  they  applied  the 
proceeds  of  such  sale  as  part  of  the  testator's  personal 
estate,  and  they  deny  being  under  any  liability  in  respect 
of  such  furnitui-e,  linen,  china,  and  plate. 

8.  With  respect  to  the  statements  in  paragraph  seven 
of  the  statement  of  claim,  the  defendants  say  that  all 
moneys  received  by  them,  or  either  of  them,  on  account 
of  the  testator's  estate,  were  paid  by  them  to  their  ex- 
ecutorship account  at  the  bank  of  Messi-s.  H.  and  Co.,  and 
until  the  sale  of  the  testator's  real  estate  took  place  as 
hereinafter  mentioned,  the  balance  to  their  credit  was 
never  greater  than  was  necessary  for  the  administration 
of  the  trusts  of  the  testator's  will,  and  they  therefore  were 
unable  to  make  any  such  investment  or  accumulation  as 
dii'ected  by  the  testator's  will.  !N^o  moneys  belonging  to 
the  testator's  estate  have  ever  been  mixed  with  the  moneys 
of  the  defendants,  or  either  of  them,  nor  has  any  money 
of  the  testator's  been  employed  in  business  since  the  tes- 
tator's decease,  except  that  his  share  in  the  said  colliery, 
for  the  reason  hereinbefore  appearing^  has  not  been  got 
in. 

9.  In  1874,  after  the  plaintifi^  C.B.  had  attained  her  age 
of  twenty-one  years,  the  defendants  sold  the  real  estate 
of  the  testator  for  sums  amounting  to  £15,080,  and  no 


716  AGENCY   ACCOUNT. 

Forms,     part  tliereof  remains  vinsold.     They  received  tlie  purcliase 
AppendixC.  moneys  in  December,  1874,  and  on  the  day  of 

Pleadings.   1875,  they  paid  such  proceeds  into  Court  to  the  credit  of 
""^~"       this  action,  with  the  exception  of  £500  retained  on  account 
of  costs  incurred  and  to  be  incurred  by  them. 


[  187     .     B.  No.  235.] 

In  the  High  Court  of  Justice  in  Ireland. 
Chancery  Division. 
[Name  of  Judge. '\ 
Between  A.B.  and  C.  his  wife,         .  .     Phiuitiffs, 

and 
E.F.  and  G.II.,  .         .         .     Defendants. 

JRejyly. 
The  plaintiff  joins  issue  with  the  defendants  upon  their 
defence. 


^       .  ^0.  5. 

Form  5.  a         , 

Agent. 

[  187     .     B.  No.       .] 

In  the  High  Court  of  Justice  in  Ireland. 
Division, 

Writ  issued  3rd  February,  1878. 
Between  A.B.  and  Company,       .         .     Plaintiffs, 
and 
E.F.  and  Company,         .  .     Defendants. 

Statement  ot  Claim. 
Pjjjjjjj  1 .  The  plaintiffs  are  manufacturers  of  artificial  manures, 

carrying  on  business  at  ,  in  the  county  of 

2.  The  defendants  are  commission  agents,  carrying  on 
business  in  Dublin. 

3.  In  the  early  part  of  the  year  ,  the  plaintiffs 
commenced,  and  down  to  the  187  ,  continued  to 
consign  to  the  defendants,  as  their  agents,  large  quantities 
of  theii-  manures  for  sale,  and  the  defendants  sold  the 
same,  and  received  the  price  thereof,  and  accounted  to 
the  plaintiffs  therefor. 

4.  No  expi^ess  agreement  has  ever  been  entered  into 
between  the  plaintiffs  and  the  defendants  with  respect  to 
the  terms  of  the  defendants'  employment  as  agents.  The 
defendants  have  always  charged  the  plaintiffs  a  commission 
at  -  i^er  cent,  on  all  sales  effected  by  them,  which  is  the 
i"ate  of  commission  ordinarily  charged  by  del  credere 
agents  in  the  said  trade.     And  the  defendants,  in  fact. 


Form 


AGENCY   ACCOUXT.  7l7 

ahvays  accounted  to  the  plamtiifs  for  the  price,  whether     Forms, 
they  received  the  same  from  the  purchasers  or  not.  AjypendixC. 

5.  The  phiintiffs  contend  that  the  defendants  are  liable   Pleadings. 
to  them  as  del  credere  agents,  but  if  not  so  liable  are 
under  the  cii'ciimstances  hereinafter  mentioned  liable  as 
ordinary  agents. 

6.  On  the  ,  the  plaintiffs  consigned  to  the 
defendants  for  sale  a  large  quantity  of  goods,  including 

tons  of 

7.  On  or  about  the  ,  the  defendants  sold 
tons    of               part   of  sxich  goods  to  one  G.  H.  for  £ 

,  at  three  months'  credit,  and  delivered  the  same 
to  him. 

8.  G.  H.  was  not,  at  that  time,  in  good  credit  and  was 
in  insolvent  cii'cumstances,  and  the  defendants  might,  by 
ordinary  care  and  diligence  have  ascertained  the  fact. 

9.  G.  H.  did  not  pay  for  the  said  goods,  but  before  the 
expiration  of  the  said  three  months  for  which  credit  had 
been  given  was  adjudicated  a  bankrupt,  and  the  plaintiifs 
have  never  received  the  said  sum  of  £  or  any  part 
thereof. 

The  plaintiffs  claim  : — 

1.  Damages  to  the  amount  of  £ 

2.  Such  further  or  other  relief  as  the  nature  of  the 

case  may  reqiiire. 
The  plaintiffs  propose  that  this  action  should  be  tried 
in  the  county  of  [  ]. 


[Title  as  in  claim,  omitting  date  of  issxie  of  writ.] 

Statement  of  Defence. 

1 .  The  defendants  deny  that  the  said  commission  of  Defeuce. 
per  cent,  mentioned  in  paragraph  4  of  the  claim  is  the 

rate  of  commission  ordinarily  charged  by  del  credere 
agents  in  the  said  trade,  and  say  that  the  same  is  the 
ordinary  commission  for  agents  other  than  del  credere 
agents,  and  they  deny  that  they  ever  accounted  to  the 
plaintiffs  for  the  price  of  any  goods,  except  after  they 
had  received  the  same  from  the  purchasers. 

2.  The  defendants  deny  that  they  were  ever  liable  to 
the  plaintiffs  as  del  credere  agents. 

3.  With  respect  to  the  eighth  paragi-aph  of  the  plaintiffs' 
statement  of  claim,  the  defendants  say  that  at  the  time 
of  the  said  sale  to  the  said  G.H.,  the  said  G.H.  was  a 
person  in  good  credit.     If  it  be  true  that  the  said  G.H. 


718 


BILL   OF   EXCHANGE. 


Forms,  -w^as  tlien  in  insolvent  circumstances  (which  the  defendants 
AppendixC.  do  not  admit),  the  defendants  did  not  and  had  no  reason 
Pleadings,  to  suspect  the  same,  and  could  not  by  ordinary  care  or 
FormT       diligence  have  ascertained  the  fact. 

[Title  as  in  defence.] 

Reply.  The  plaintiffs  join  issue  upon  the  defendants'  statement 

of  defence. 


Form  6. 


Bill  of 
exchange. 


Claim. 


Defence. 


No.  6. 
Bill  of  Exchange, 

187  .     B.  No. 
In  the  High  Court  of  Justice  in  Ireland. 
Division. 
Writ  issued  3rd  February,  1878. 
Between  A.B.  and  CD.         .  .     Plaintiffs, 


and 
E.F.  and  G.H. 


Defendants. 


Statement  of  Claim. 

1.  Messrs.    M.N.   &  Co.   on  the  day  of 
drew  a  bill  of  exchange  upon  the  defendants  for  £, 
payable  to  the  order  of  the  said  Messrs.  M.N.  &  Co.  three 
months  after  date,  and  the  defendants  accepted  the  same. 

2.  Messrs.  M.N.  &  Co.  indorsed  the  bill  to  the  plain- 
tiffs. 

3.  The  bill  became  due  on  the  ,  and  the  defen- 
dant has  not  paid  it. 

The  plaintiffs  claim  : — 


[Title.] 

Statement  of  Defence. 

1.  The  bill  of  exchange  mentioned  in  the  statement  of 
claim  was  drawn  and  accepted  under  the  circumstances 
hereinafter  stated,  and  except  as  hereinafter  mentioned 
there  never  was  any  consideration  for  the  acceptance  or 
payment  thereof  by  the  defendants. 

2.  Shortly  before  the  acceptance  of  the  said  bill  it  was 
agreed  between  the  said  Messrs.  M.N.  &  Co.  the  drawers 
thereof,  and  the  defendants,  that  the  said  Messrs.  M.N.  & 
Co.  sliould  sell  and  deliver  to  the  defendants  fi-ee  on 
board  ship  at  the  port  of  1,200  tons  of  coal  diu-ing 


BILL   OF   EXCHANGE,  719 

the  month  of  ,  and  that  the  defendants  shoukl  pay     Forms, 

for  the  same  by  accepting  the  said  Messrs.  M.N.  &  Co.'s  AppendixC. 
dratt  for  £  at  six  months.  Pleadings. 

3.  The  said  Messrs.  M.N.  &  Co.  accordingly  drew  upon  j.^j.^^ 
the  defendants,  and  the  defendants  accepted  the  bill  of 
exchange  now  sued  npon. 

4.  The  defendants  did  all  things  which  were  necessary 
to  entitle  them  to  delivery  by  the  said  Messrs.  M.N.  & 
Co.  of  the  said  1,200  tons  of  coal  under  their  said  con- 
tract, and  the  time  for  delivery  has  long  since  elapsed ; 
but  the  said  Messrs.  M.N.  &  Co.  never  delivered  the 
same,  or  any  part  thereof,  but  have  always  refused  to  do 
so,  whereby  the  consideration  for  the  defendants'  accept- 
ance has  wholly  failed. 

5.  The  plaintiffs  first  received  the  said  bill,  and  it  was 
first  indorsed  to  them  after  it  was  overdue. 

6.  The  plaintiffs  never  gave  any  value  or  consideration 
for  the  said  bill. 

7.  The  plaintiffs  took  the  said  bill  with  notice  of  the 
facts  stated  in  the  second,  thii-d,  and  fourth  paragi-aphs 
hereof. 


[Title.] 

Reply. 

1.  The  plaintiff  joins  issue  upon  the  defendants'  state-  Reply, 
ment  of  defence. 

2.  The  plaintiff  gave  value  and  consideration  for  the 
said  bill  in  manner  following,  that  is  to  say,  on  the 

day  of  ,  187  ,  the  said  Messrs.  M.N.  &  Co.  were 

indebted  to  the  plaintiff  in  about  £  ,  the  balance  of  an 
accoimt  for  goods  sold  from  time  to  time  by  him  to  them. 
On  that  day  they  ordered  of  the  plaintift'  further  goods 
to  the  value  of  about  £  ,  which  last-mentioned  goods 

have  since  been  delivered  by  him  to  them.  And  at  the 
time  of  the  order  for  such  last- mentioned  goods  it  was 
agreed  between  Messrs.  M.N.  &  Co.  and  the  plaintiff, 
and  the  order  was  received  upon  the  terms,  that  they 
should  indorse  and  hand  over  to  him  the  bill  of  exchange 
sued  upon,  together  with  various  other  securities  on 
account  of  the  said  previous  balance,  and  the  price  of 
the  goods  so  ordered  on  that  day.  The  said  securities, 
inckiding  the  bill  sued  upon,  were  thereupon  on  the  same 
day  indorsed  and  handed  over  to  the  plaintiff. 


720 


BILL    OF   EXCHANGE, 


Forms, 

Appendix  C. 
Pleadings. 

Form  7. 
Bill  of 
exchange 
and  con- 
sideration. 


No,  7. 
£ill  of  Exchange. 


187     .     B.  No. 
In  tlie  High  Coui't  of  Justice  in  Ireland, 
Division. 
"Writ  issued  3rd  February,  1878. 
Between  A,B,  and  CD,  ,         .         .       Plaintiffs, 

and 
E.F.  and  G.H,  .         .         .        Defendants, 

Statement  of  Claim. 
Claim.  \    rpi^e  plaintiffs  are  merchants,   factors,  and 

commission  agents,  carrying  on  busioess  in  [  ] 

2,  The  defendants  are  merchants  and  commission  agents 
carrying  on  business  at  [  ], 

3,  For  several  years  prior  to  the  ,  1875,  the 
plaintiffs  had  been  in  the  habit  of  consigning  goods  to 
the  defendants  for  sale,  as  their  agents,  and  the  defen- 
dants had  been  in  the  habit  of  consigning  goods  to  the 
plaintiffs  for  sale,  as  theii*  agents  ;  and  each  pai'ty  always 
received  the  price  of  the  goods  sold  by  him  for  the  other  ; 
and  a  balance  was  from  time  to  time  struck  between  the 
parties,  and  paid. 

On  the  of  ,  the  moneys  so  received  by  the 

defendants   for   the   plaintiffs,    and  remaining   in    their 
names,    largely  exceeded    the    moneys    received   by  the 
plaintiffs  for  the  defendants,  and  a  balance  of  £ 
was  accordingly  due  to  the  plaintiffs  from  the  defendants, 

4,  On  or  about  the  ,1875,  the  plaintiffs  sent  to 
the  defendants  a  statement  of  the  accounts  between  them 
showing  the  said  sum  as  the  balance  due  to  the  plaintiffs 
from  the  defendants  ;  and  the  defendants  agi'eed  to  the 
said  statement  of  accounts  as  correct,  and  to  the  said  sum 
of  £  as  the  balance  due  by  them  to  the  plaintiffs, 
and  agreed  to  pay  interest  on  such  balance  if  time  were 
given  to  them, 

5,  The  defendants  requested  the  plaintiffs  to  give 
them  three  months  time  for  payment  of  the  said  sum  of 
£,  and  the  plaintiffs  agreed  to  do  so  upon  the 
defendants  accepting  the  bills  of  exchange  hei'einafter 
mentioned. 

6,  The  plaintiffs  thereupon  on  the  drew  two  bills 
of  exchange  upon  the  defendants,  one  for  £  and 
the  other  for  £  ,  both  payable  to  the  order  of  the 
plaintiffs  three  months  after  date,  and  the  defendants  ac- 
cepted the  bills. 


CHARTER   PARTY.  721 

The  said  bills  became  due  on  the  ,  187  ,  aud  the     Forms, 

defendants  have  not  paid  the  bills,  or  either  of  them,  nor  AppendixO. 
the  said  sum  of  Pleadings. 

The  plaintiffs  claim  : —  Yorm.  7. 

£  and  interest  to  the  date  of  judgment. 

The  plaintiffs  propose  that  the  action  should  be  tried 
at  [  ]. 


No.  8.  Forms. 

Charter-Party. 

187  .     B.  No. 
In  the  High  Court  of  Justice  in  Ireland.  ^  Charter- 

Division,  party. 

"Writ  issued  3rd  January,  1878. 

Between  A.B.  and  CD Plaintiffs, 

and 
E.F.  and  G.H Defendants. 

Statevient  of  Claim. 

1.  The  plaintiffs  were,  on  the  1st  August,  1874,  the  Claim. 
owners  of  the  steamship  "  British  Queen." 

2.  On  the  1st  August,  1874,  the  ship  being  then  in 
Calcutta,  a  chartei'-party  was  there  entered  into  between 
John  Smith,  the  master,  on  behalf  of  himself  and  the 
owners  of  the  said  ship,  of  the  one  pai-t,  and  the  defen- 
dants of  the  other  part. 

3.  By  the  said  charter-party  it  was  agreed,  amongst 
other  things,  that  the  defendants  should  be  entitled  to 
tlie  whole  carrying  power  of  the  said  steamship  for  the 
period  of  four  months  certain,  commencing  from  the  said 
1st  August,  1874,  upon  a  voyage  or  voyages  between 
Calcutta  and  Mauritius  and  back  ;  that  the  defendants 
shoiild  pay  for  such  use  of  the  said  steamship  to  the  plain- 
tiffs' agents  at  Calcutta,  monthly,  the  sum  of  £1,000; 
tliatthe  charter  should  terminate  at  Calcutta  ;  and  that  if 
iit  the  expiration  of  the  said  period  of  four  months  the 
said  steamship  should  be  upon  a  voyage,  then  the  de- 
fendants should  pay  pro  rata,  for  the  hire  of  the  ship  u}> 
to  her  arrival  at  Calcutta,  and  the  complete  discharge  of 
her  cargo  there. 

4.  The  "  British  Queen"  made  several  voyages  in  pur- 
suance of  the  said  charter-party,  and  the  first  three 
monthly  sums  of  £1,000  each  were  diily  paid. 

5.  The  period  of  four  months  expired  on  the  1st  De- 
cember, 1874,  and  at  that  time  the  steamship  was  on  a 

2i 


722 


CHARTER   PARTY. 


Form  8. 


Defence. 


Forms,  voyage  from  Mauritius  to  Calc^^tta.  She  arrived  at 
An,K'ndh.C.  Calcutta  on  the  13th  December,  and  the  discharge  of 
Pleadings  l^^r  cargo  there  was  completed  on  the  16th  December, 
■   1874. 

G.  The  plaintiffs'  agents  at  Calcutta  called  upon  the 
defendants  to  pay  to  them  the  fourth  monthly  sum  of 
£1,000,  and  a  sum  of  £500  for  the  hire  of  the  steamship 
from  the.  1st  to  the  16th  December,  1874,  but  the  defend- 
ants have  not  paid  any  part  of  the  said  sums. 

Tlie  plaintiffs  claim  : — 

The  sum  of  £1,500,  and  interest  upou  £1,000,  part 
thereof,  from  the  1st  December^  1874,   until  judg- 
ment. 
The  plaintiffs  propose  that  this  action  should  be  tried  in 
Dublin. 

[Title.] 

Statement  of  Defence. 

1.  By  the  cliarter-party  sued  upon  it  was  expressly 
provided  that  if  any  accident  should  happen  to,  or  any 
repairs  should  bocome  necessary  to  the  engines  or  boilers 
of  the  said  steamship,  the  time  occupied  in  repairs  should 
be  deducted  from  the  period  of  the  said  charter,  and  a 
proportionate  reduction  in  the  charter  money  slioidd  l)e 
made. 

'1.  On  the  repairs   became    necessary   to    the 

engines  and  boilers  of  the  steamship,  and  ten  days  were 
occupied  in  effecting  such  repaii'S. 

3.  On  the  an  accident  happened  to  the  engines 
of  the  steamship  at  Mauritius,  and  two  days  were  occupied 
in  effecting  the  repairs  necessary  in  consequence  thereof. 

4.  The  defendants  are  therefore  entitled  to  a  reduction 
in  the  charter  money  of  £400. 

By  way  of  set-off  and  counter-claim  the  defendants 
claim  as  follows  : — 

5.  By  the  charter-party  it  was  expressly  provided  that 
the  charterers  should  furnish  funds  for  the  steamship's 
necessary  disbursements,  except  in  the  port  of  Calcutta, 
without  any  commission  or  interest  on  any  sum  so 
advanced. 

6.  The  defendants  paid  for  the  necessary  disbursements 
of  the  ship  in  the  port  of  Mauritius  between  the 
and  the  1874,  sums  amounting  in   all  to   £625 
14s.  M. 

7.  The  charter-party  also  contained  an  express  wari-anty 
that  the    stoamshij)  was  at  the  date   thereof  capable  of 


Counter- 
claim. 


CHAETER  PARTY.  72o 

steaming  nine  knots   an  liour  on  a    consumption   oi    3(J     Forms, 
tons   of  coal  a  day,  and  it  was   further  provided  by  the  Appendbc. 
charter-party  that  the  charterers  shoukl  provide  coal  for   riendivfjs. 
the  use  of  the  said  steamship.  

8.  The  steamship  was  at  the  date  of  the  chai-ter-party 
only  capable  of  steaming  less  than  eight  knots  to  an 
hour,  and  that  only  on  a  consumption  of  more  than  35 
tons  of  coal  a  day. 

9.  In  consequence  of  the  matters  mentioned  in  the  last 
paragraph,  the  steamship  finally  arrived  at  Calcutta  at 
least  15  days- later,  and  remained  under  charter  at  least 
15  days  longer  than  she  would  otherwise  have  done. 
She  was  also  diiring  the  whole  period  of  the  said  chai-ter 
at  sea  for  a  much  larger  number  of  days  than  she  would 
otherwise  have  been,  and  consumed  a  much  larger  qvian- 
tity  of  coal  on  each  of  such  days  than  she  would  other- 
"wise  have  done,  whereby  the  defendants  were  obliged 
to  provide  for  the  use  of  the  steamship  much  larger 
•quantities  of  coal  than  they  would  otherwise  have  been. 

The  defendants  claim  : — 

£         damages  in  respect  of  the  matters  stated  in  this 
set-oflf  and  counter-claim. 

[Title.] 

Reply.  Roi,iy. 

1.  The  plaintiff  joins  issue  upon  the  second,  third, 
and  foiu'th  paragraphs  of  the  defendants'  statement  of 
defence. 

2.  With  respect  to  the  alleged  set-off  stated  in  para- 
graph 6  the  plaintiff  does  not  admit  the  correctness 
of  the  amount  therein  stated.  And  all  sums  advanced 
by  them  for  disbursements  were  paid  or  allowed  to  them 
by  the  plaintiffs  by  deducting  the  amoitnt  thereof  from 
the  third  monthly  sum  of  £1,000  paid  (subject  to  such 
deduction)  to  the  plaintiffs'  agents  at  Calcutta  by  the 
defendant  on  or  about  the  12th  November,  1878. 

3.  With  respect  to  the  alleged  breach  of  warranty 
and  the  alleged  damages  therefrom  stated  in  the  7th,  8th, 
and  9th  paragraphs,  the  plaintiffs  say  that  the  steamship 
was  at  the  date  of  the  charter-pai-ty  capable  of  steaming 
nine  knots  an  hour  on  a  consumption  of  30  tons  of  coal 
a  day.  If  the  steamship  did  not,  during  the  said  chartei', 
steam  more  than  eight  knots  an  hour,  and  that  on  a  con- 
sumption of  more  than  35  tons  a  day,  as  alleged  (which 
the  plaintiffs  do  not  admit),  it  was  in  consequence  of  the 

2i  2 


7-2i 


FALSE   IMPRISONMENT. 


Forms.     l)ad  and  unfit  quality  of  the  coals  provided  by  the  defen- 
AppendixC.  clants  for  the  ship's  use. 
Pleadinr/s.  [Title.] 

I'ovm  8.  Joinder  of  issue. 

Rejoin ckr.        The  defendants  join  issue  upon  the  plaintiffs'  reply  to 
their  set-off  and  counter-claim. 


Form  0.  No.  0. 

Fcdse  Imprisonment. 

187     .     B.  No. 
lu  the  High  Court  of  Justice  in  Ireland. 
Division. 
•  Writ  issued  3rd  Januaiy,  1878. 
Between  A.B.,      .       .       .     Plaintiff. 
and 
E.F.,      .       .       .     Defendant. 

Statement  of  Claim. 
Claiio.  1.  The  plaintiff  is  a  journeyman  painter.     The  defen- 

dant is  a  builder,  having  his  building  yard,  and  carrying 
on  business  at  and  for  six  months  before  and 

\\\)  to  the  22nd  August,  187     ,  the  plaintiff  was  in  the  de- 
fendant's emplojanent  as  a  journeyman  painter. 

2.  On  the  said  22nd  Augaist,  187  ,  the  plaintiff  came 
to  work  as  \isiial  in  the  defendant's  yard,  at  about  six 
o'clock  in  the  morning. 

3.  A  few  minutes  after  the  plaintiff  had  so  come  to  work 
the  defendant's  foreman  X.Y.,  who  was  then  in  the  yard, 
called  the  plaintiff  to  him,  and  accused  the  plaintiff  of 
having  on  the  jjrevious  day  stolen  a  quantity  of  paint, 
the  property  of  the  defendant,  from  the  yard.  The  plain- 
tiff denied  the  charge,  but  X.Y.,  gave  the  plaintiff  into 
the  custody  of  a  constable,  whom  he  had  previously 
sent  for,  upon  a  charge  of  stealing  paint. 

4.  The  defendant  was  ]:)resent  at  the  time  when  tlie 
plaintiff"  was  given  into  cxistody,  and  authorized  and 
assented  to  his  being  so  given  into  custody ;  and  in  any 
case  X.Y.,  in  giving  him  into  custody,  w^as  acting  within 
the  scope  and  in  the  course  of  his  employment  as  the 
defendant's  foreman,  and  for  the  j)urposes  of  the  defen- 
dant's business. 

5.  The  jilaintifF  u])on  being  so  given  into  custody, 
was  taken  by  the  said  constable  a  considerable  distance 
throiigh  various  streets,  on  foot,  to  tlie  police 
station,  and  he  was  there  detained  in  a  cell  till  late  in 
the  same  afternoon,  wlien  he  was  taken  to  the  police 


FALSE   IMPRISONMENT.  72o 

court,  and  tlie  charge  against  him  was  heard  before  the     Forms, 
magistrate  then  sitting  there,  and  -n^as  dismissed.  Appendix  C. 

6.  In  consequence  of  being  so  given  into  custody,  the  Pleadings. 
plaintiff  suffered  annoyance  and  disgi'ace,  and  loss  of  time  ~ 

and  wages,   and  loss  of  credit  and  reputation,  and  was 
thereby  unable  to  obtain  any  employment  or  earn  any 
wages  for  three  months.       The  plaintift'  claims  £ 
■damages. 

The  plaintiff  proposes  tliat  this  action  shoiild  be  tried 
in[  ]    ^ 

[Title.] 

Statement  of  Defence. 

1.  The   defendant   denies  that   he  was  present  at  the  Defence, 
time  when  the  plaintiff  was  given  into  custody,  or  that  he 

in  any  way  authorized  or  assented  to  his  being  given  into 
custody.  And  the  said  X.Y.,  in  giving  the  plaintiff  into 
custody,  did  not  act  within  the  scope  or  in  the  course 
of  his  employment  as  the  defendant's  foreman,  or  for  the 
purposes  of  the  defendant's  business. 

2.  At  some  time  about  live  or  six  o'clock  on  the 
being   the   evening   before   the   plaintiff  was  given  into 
custody,  a  large  quantity  of  paint  had  been  feloniously 
stolen  by  some  person  or  persons  from  a  shed  upon  the 
defendant's  yard  and  premises. 

3.  At  about  5.30  o'clock  on  the  evening  of  the 

the  plaintiff',  who  had  left  off  work  about  half  an  hour 
pre^ioiisly,  was  seen  coming  out  of  the  shed  when  no 
one  else  was  in  it,  although  his  work  lay  in  a  distant 
part  of  the  yard  from  and  he  had  no  business  in  or  near 
the  shed.  He  was  then  seen  to  go  to  the  back  of  a  stack 
of  timber  in  another  part  of  the  yard.  Shortly  after- 
wards the  paint  was  found  to  have  been  stolen,  and  it 
was  found  concealed  at  the  back  of  the  stack  of  timber 
beliind  which  the  plaintiff  had  been  seen  to  go. 

4.  On  the  folloA\Tiig  morning,  before  the  plaintiff  was 
given  into  custody,  he  was  asked  by  X.Y.  what  he  had 
been  in  the  shed  and  behind  the  stack  of  timber  for,  and 
he  denied  having  been  in  either  place.  X.Y.  had  reason- 
able and  prol)able  cause  for  suspecting,  and  did  suspect 
that  the  plaintiff  was  the  person  who  had  stolen  the  paint, 
and  thereupon  gave  him  into  custody. 

[Title.] 
Reply. 
The   plaintiff  joins  issue  upon  the  defendant's  state-  Reply, 
ment  of  defence. 


726 


FORECLOSURE. 


Append'iJ:  C. 
Pleadings. 


rorms.  No.  10, 

Foreclosure. 

187  .     W.  No.  672. 

Form  10.      jj^  ^^^  High  Court  of  Justice  in  Iruland. 
p1°5u'.^  Chancery  Division. 

\_Name  of  Judge.^ 

Writ  issued  1st  January,  1878. 
Between  R.W.,  .         .         .         .         Plaintiff, 
and 
O.S.  and  J.B.         .  .  Defendants. 

Statement  of  Claim. 

Claim.  By  an  indenture  dated  the  25th  of  March,  1867,  made 

between  the  defendant  O.S.,  of  the  one  part,  and  the 
plaintiff  of  the  other  part,  the  defendant  O.S.,  in  con- 
sideration of  the  sum  of  .£10,000  paid  to  hiin  by  the 
plaintiff',  conveyed  to  the  plaintiff"  and  his  heirs  a  farm 
containing  398  acres,  situate  in  the  parish  of  B.,  in  the 
county  of  D.,  with  all  the  coal  mines,  seams  of  coal  and 
other  mines  and  minerals  in  and  under  the  same,  su.bject 
to  a  proviso  for  redemption  of  the  same  premises  on  pay- 
ment by  the  defendant  O.S.,  his  heirs,  executors,  admini- 
strators, or  assigns,  to  the  plaintiff,  his  executors,  admini- 
strators, or  assigns,  of  the  sum  of  £10,000,  with  interest 
for  the  same  in  the  meantime  at  the  rate  of  £4  per  cent. 
per  annum,  on  the  25th  day  of  September  then  next. 

2.  By  an  indenture  dated  the  1st  day  of  April,  1867, 
made  between  the  defendant  O.S.  of  the  one  part,  and  the 
defendant  J.B.  of  the  other  part,  the  defendant  O.  S. 
conveyed  to  the  defendant  J.  B.  and  his  heirs  the  here- 
ditaments comprised  in  the  hereinbefore  stated  security 
of  the  plaintiff,  or  some  parts  thereof,  subject  to  the 
plaintiff's  said  security,  and  subject  to  a  proviso  for 
redemption  of  the  same  premises  on  payment  by  the 
defendant  O.S.,  his  heirs,  executors,  administrators,  or 
assigns,  to  the  defendant  J.  B.  his  executors,  admini- 
strators, or  assigns,  of  the  sum  of  £15,000,  with  interest 
for  the  same  in  the  meantime  at  the  rate  of  £5  per  cent, 
l>er  annum. 

3.  The  whole  of  the  said  sum  of  £10,000,  with  an 
arrear  of  interest  thereon,  remains  due  to  the  plaiiitifi" 
on  his  said  security. 

The  plaintiff  claims  as  follows  : — 

1.  That  an  account  may  be  taken   of  what  is  due  to 


FORECLOSURE.  727 

the  plaiiitifF  for  principal  money  and  interest  on  his  said     Forms, 
security,  and  that  tlie  defendants  may  be  decreed  to  pay  to  AppendixC. 
the  plaintiff"  what  shall  be  found   due  to  him  on  taking   pieadings. 

such  account,  together  with  his  costs  of  this  action,  by  a       

day  to  be  appointed  by  the  Court,  the  plaintilF  being    °'^™ 
ready  and  willing,  and  hereby  offering,  upon  being  paid 
his  principal  money,   interests,   and   costs,  at   such    ap- 
pointed time,    to    convey  the   said    mortgaged  premises 
as  the  Court  shall  direct. 

2.  That  in  default  of  such  payment  the  defendants 
may  be  foreclosed  of  the  equity  of  redemption  in  the 
mortgaged  premises. 

3.  Such  further  or  other  relief  as  the  nature  of  the 
case  may  require. 


187     .     W.  672. 
In  the  High  Court  of  Justice  in  Ireland. 
Chancery  Division. 

[N'anie  of  Judge.'] 

Between  R.  W.        .         .         .         Plaintiff", 
and 
O.  S.  and  J.  B.  .        Defendants, 

(by  original  action,) 

And  between  the  said  O.  S.  .  PlaintiffT, 

and 

The  said  R.  W.  and  J.  B., 

and  J.  W Defendants, 

(by  counter-claim.) 

The  Defence  and  Counter-claim  of  the  above-named  0.  S. 

1.  This    defendant  does  not  admit  that  the  contents  Defence, 
of  the  indenture  of  the    25tli    day  of  March  1867,  in 

the   Plaintiff' 's  statement    of   complaint  mentioned,  are 
correctly  stated  therein. 

2.  The  indenture  of  the  1st  day  of  April  1867,  in  the 
statement  of  claim  mentioned,  was  not  a  security  for  the 
s\im  of  £15,000  and  interest  at  £5  per  cent,  per  annum, 
but  for  the  sum  of  £14,000  only,  with  interest  at  the  rate 
of  £4  10s.  per  cent,  per  annum. 

3.  This  defendant  submits  that  under  the  circum- 
otances  in  his  countei--claim  mentioned,  the  said  inden- 
tures of  the  25th  day  of  March  1867  and  the  1st  day  of 
April,  1867,  did  not  create  any  eff'ectual  security  upon  the 
mines  and  minerals  in  and  under  the  lands  in  the  same 


728 


FORECLOSURE. 


Form  10. 

Counter- 
claim. 


Forms,  indentiii'es  compi'ised,  and  tliat  the  same  mines  and 
AppendixC.  minerals  oiiglit  to  be  treated  as  excepted  out  of  the  said 
Pleadings.  Securities. 

And  by  way  of  counter-claim  this  defendant  states  as 
follows  : — 

1.  At  the  time  of  the  execution  of  the  indenture  next 
herein-after  stated,  J.  C.  A.  was  seised  in  fee-simple  in 
possession  of  the  lands  described  in  the  said  indentures, 
and  the   mines  and  minerals  in  and  under  the  same. 

2.  By  indenture  dated  the  24th  of  March  1860,  made 
between  the  said  J.  C,  A.  of  the  first  part,  E.  his  wife, 
then  E.  S.,  spinster,  of  the  second  part,  and  this  defen- 
dant and  the  above-named  J.  W.  of  the  third  part, 
being  a  settlement  made  in  contemplation  of  the  marriage, 
shortly  after  solemnized,  between  the  said  J.  C.  A.  and 
his  said  wife,  the  said  J.  C.  A.  granted  to  this  defendant 
and  the  said  J.  W.,  and  their  heirs,  all  the  coal  mines, 
beds  of  coal,  and  other  the  mines  and  minerals  under 
the  said  lands,  with  such  powers  and  privileges  as  in 
the  now-stating  indentui"e  mentioned,  for  the  purpose 
of  winning,  working,  and  getting  the  same  mines  and 
minerals,  to  hold  the  same  premises  to  this  defendant  and 
the  said  J.  W.  and  theii"  heirs  to  the  use  of  the  said 
J.  C.  A.,  his  heirs  and  assigns,  till  the  solemnization  of  the 
said  marriage,  and  after  the  solemnization  thereof  to  the 
use  of  this  defendant  and  the  said  J.  W.,  their  executors 
and  administrators,  for  the  terms  of  500  years  from  the 
day  of  the  date  of  the  now- stating  indenture,  upon  the 
trusts  therein  mentioned,  being  trusts  for  the  benefit  of 
the  said  J.  C.  A.,  and  his  wife  and  the  children  of  their 
marriage,  and  from  and  after  the  expiration  or  othei- 
determination  of  the  said  term  of  500  years,  and  in  the 
meantime  subject  thereto,  to  the  use  of  the  said  J.  C.  A., 
his  heirs  and  assigns  for  ever. 

3.  By  indenture  dated  the  12th  of  May,  1860,  made 
between  the  said  J.  C  A.  of  the  one  part,  and  W.  N. 
of  the  other  part  the  said  J.  C.  A.  granted  to  the  said 
W.  N.  and  his  heirs  the  said  lands,  except  the  coal 
mines,  beds  of  coal,  and  other  mines  and  minerals  there- 
under, to  hold  the  same  premises  unto  and  to  the  vise  of 
the  said  W.  N.,  his  heirs  and  assigns  for  ever,  by  way 
of  mortgage,  for  securing  the  payment  to  the  said 
W.  N.,  his  executors,  administrators,  or  assigns,  of  the 
sum  of  X2 6,000,  with  interest  as  therein  mentioned. 

4.  On  the  l4th  of  January,  1864,  the  said  J.  C.  A. 
was  adjudicated  a  bankrupt,  and  shortly  afterwards 
J.  L.  was  appointed  creditors'  assignee  of  his  estate. 


FORECLOSURE.  720 

5.  Some  time  after  the  said  bankruptcy,  the  said  W.  N.,      xorms. 
ixnder  a  power  of  sale  in  his  said  mortgage  deed,   con-  Aj>p,ji(UxC. 
tracted  with  this  defendant  for  the  absolute  sale  to  this   rieadini/s. 
defendant  of  the  property  comprised  in  his  said  security  jp^j."^'^ 
for  an  estate  in  fee  simple  in  possession,  free  from  incum- 
brances, for  the  sum  of  £26,000,  and  the  said  J.  L.,  as 

such  assignee  as  aforesaid,  agreed  to  join  in  the  convey- 
ance to  this  defendant  for  the  purpose  of  signifying  his 
assent  to  such  sale. 

6.  By  indenture  dated  the  1st  of  September,  1866, 
made  between  the  said  W.  N.  of  the  first  part,  the  said 
J.  L.  of  the  second  part,  the  said  J.  C.  A.  of  the  third 
part,  and  this  defendant  of  the  fourth  part,  reciting  the 
said  agi-eement  for  sale,  and  reciting  that  the  said  J.  L., 
being  satisfied  that  the  said  sum  of  £20,000  was  a  proper 
price,  had,  with  the  sanction  of  the  Court  of  Bankruptcy, 
agreed  to  confirm  the  said  sale,  it  was  witnessed  that  in 
consideration  of  the  sum  of  £26,000,  with  the  privity 
and  approbation  of  the  said  J.  L.,  paid  by  this  defendant 
to  the  said  W.  N.,  he  the  said  W.  N.  granted,  and  the 
said  0.  J.  A.  ratified  and  confirmed  to  this  defendant 
and  his  heirs,  all  the  hereditaments  comprised  in  the 
said  security  of  the  12th  day  of  May,  1860,  with  their 
rights,  members,  and  appurtenances,  and  all  the  estate, 
right,  title,  and  interest  of  them,  the  said  W.  N.  and  • 
J.  C.  A.  therein,  to  hold  the  same  premises  unto  and 
to  the  use  of  this  defendant,  his  heirs  and  assigns  for 
ever. 

7.  The  sale  to  this  defendant  was  not  intended  to* 
include  anythmg  not  included  in  the  secuiity  of  the  12tli 
of  May,  1860,  and  the  said  J.  L.  only  concuii-ed  therein 
to  signify  his  approval  of  the  said  sale,  and  did  not 
pui-port  to  convey  any  estate  vested  in  him  ;  and  the 
lastly  hereinbefore  stated  indenture  did  not  vest  in  tliis 
defendant  any  estate  in  the  said  mines  and  minerals. 

8.  The  plaintifi"  and  the  defendant  J.  B.  respectively 
had  before  they  advanced  to  this  defendant  the  moneys 
lent  by  them  on  their  securities  in  the  plaintifi"s  claim 
mentioned,  full  notice  that  the  mines  and  minerals  under 
the  said  lands  did  not  belong  to  this  defendant.  This 
fact  appeared  on  the  abstracts  of  title  delivered  to  them 
before  the  preparation  of  theii'  said  securities.  A  valua- 
tion of  the  property  made  by  a  surveyor  was  fiu-nished 
to  them  respectively  on  behalf  of  this  defendant  before 
they  agreed  to  advance  their  money  on  their  said  secu- 
rities ;  but  although  the  said  lauds  are  in  a  mineral 
district,  the  mines  and  minerals  were  omitted  from  sucli 

2  I  3 


730  FORECLOSURE. 

Forms,  vahuitioa,  and  they  respectively  knew  at  the  time  of 
AppendixC.  taking  their  said  securities  that  the  same  did  not  include 
Pleadings.   J^ny  interest  in  the  mines  and  minerals. 

9.  At  the  time  when  the  securities  of  the  plaintiff  and 

the  defendant  J.  B.  were  respectively  executed,  the  plain- 
tiff and  the  defendant  J.  B.  respectively  had  notice  of  the 
.said  indenture  of  settlement  of  the  24th  day  of  March, 
18G0. 

10.  At  the  time  when  the  plaintiff's  secux-ity  was  exe- 
cuted, the  mines  and  minerals  under  tlie  said  lands,  with 
such  powers  and  privileges  as  aforesaid,  were  vested  in 
this  defendant  and  tlie  said  J.  W.  for  the  residue  of  the 
said  term  of  500  years,  and  subject  to  the  said  term,  the 
inheritance  in  the  same  mines,  miixerals  powers,  and 
privileges  was  Vested  in  the  said  J.  L.  as  such  assignee  as 
aforesaid. 

1 1 .  The  said  secuiity  to  the  plaintiff  was  by  mistake 
framed  so  as  to  purport  to  include  the  mines  and  minerals 
under  the  said  lands,  and  by  virtue  thereof  the  legal  estate 
in  moiety  of  the  said  mines  and  minerals  became  and  now 
is  vested  in  the  plaintiff  for  the  residue  of  the  said  term 
of  500  years. 

The  defendant  O.  S.  claims  as  follows  : 

1.  That  it  may  he  declared  that  neithei-  the  plaintiflT 
nor  the  defendant  J.  B.  has  any  charge  or  lien  upon  that 
one  undi\  ided  moiety,  which  in  manner  aforesaid  became 
vested  in  the  plaintiff  for  the  residue  of  the  said  term  of 
500  years,  of  and  in  the  mines  and  minerals  in  and  imder 
the  lands  mentioned  in  the  plaintiff's  said  secviiity. 

2.  That  it  may  be  declared  that  the  said  mines  and 
minends,  rights  and  privileges,  which  by  the  said  inden- 
ture of  settlement  were  vested  in  the  defendant  O.  S.  and 
the  said  J.  W.  for  the  said  term  of  500  years,  upon  trust 
as  tlierein  mentioned,  ought  to  be  so  conveyed  and  assured 
as  that  the  same  may  become  vested  in  the  defendant 
O.  S.  and  the  said  J.  W.  for  all  the  residue  of  the  said 
term  upon  the  trusts  of  the  said  settlement. 

3.  That  the  said  R.  W.  and  J.  W.  may  be  decreed  to 
execute  all  such  assurances  as  may  be  necessary  for 
giving  effect  to  the  declaration  secondly  hereinbefore 
prayed. 

4.  To  have  such  further  ur  other  relief  as  the  natuie  of 
tlie  case  may  require. 


FORECLOSUKE. 


731 


1878.     W.  G72.     Forms. 
In  the  High  Court  of  Justice  in  Ireland,  AppendlxC. 

Chancery  Division.  Pleadings. 

[Name  of  Judged]  FormTo. 

Between  R.  W.,  .         .         .  Plaintiff, 

and 
0.  S.  and  J.  B.,    .  .  Defendants, 

(by  original  action) 

And  between  the  said  O.  S.,         .  Plaintiff, 

and 
The  said  W.  E,.  and  J.  W.,  .         Defendants, 

(by  counter-claim.) 

The  repltj  of  the  Plainti^,  R.  W. 
1.   The  plaintiff  joins  issue  with  the  defendants  upon  Reply, 
their  sevei-al  defences,  and  in   reply  to  the  statements 
alleged  by  the  defendant  S.  O.,  by  way  of  counter-claim, 
the  plaintiff  says  as  follows  : — 

1.  The  plaintiff  does  not  admit  the  execution  of  any 
such  indenture  as  is  stated  in  the  said  counter-claim  to 
bear  date  the  24th  of  March,  1860. 

2.  The  plaintiff  does  not  admit  that  the  indenture 
of  the  12th  of  May,  1800,  is  stated  correctly  in  the 
statement  of  claim. 

3.  When  the  defendant  O.  S.,  in  the  year  18G6, 
applied  to  the  plaintiff  to  advance  him  the  sum  of  £10,000, 
he  offered  to  the  plaintiff  as  a  security  the  lands  which 
were  afterwards  comprised  in  the  indenture  of  the  25th 
of  March,  1867,  including  the  mines  and  minerals  which 
he  now  alleges  were  not  to  form  part  of  the  security,  and 
the  plaintiff  agreed  to  lend  the  said  sum  upon  the  security 
of  the  said  lauds,  including  such  mines  and  minerals. 
During  the  negotiation  for  the  said  loan  a  valuation  of 
the  property  to  be  included  in  the  mortgage  was  delivered 
to  the  plaintiff  on  behalf  of  the  said  defeiidant.  Such 
valuation  included  the  mines  and  minerals  ;  and  the  plain- 
tiff consented  to  make  the  loan  on  the  faith  of  such 
valuation.  The  plaintiff  did  not  know  when  he  took  his 
security  that  it  did  not  include  any  interest  in  tlio  said 
mines  and  minerals ;  on  the  contrary,  he  believed  that 
the  entirety  of  such  mines  and  minerals  was  to  be  in- 
cluded therein. 

4.  The  plaintiff  does  not  admit  the  contents  of  the 
indenture  of  the  1st  of  September,  1866,  to  be  as  alleged, 
or  that  it  was  so  framed  as  not  to  inchide  the  said  mines 
and  minerals,  or  that  it  was  not  intended  to  include  any- 


732 


FRAUDULENT   MISREPRESENTATION. 


Forms. 
Appendix  C. 


Form  10. 


Form  11. 


Fraud. 


Claim. 


tiling  not  included  in  the  security  of  the  12th  of  May, 
I860,  or  that  J.  L.,  in  the  counter-claim  named,  only 
concurred  therein  to  signify  his  approval  of  the  said  sale, 
and  did  not  purport  to  convey  any  estate  vested  in  him. 

5.  Save  so  far  as. the  plaintiff's  solicitor  may  have  had 
notice  by  means  of  the  abstract  of  title  that  the  mines 
and  minerals  under  the  said  lands  did  not  belong  to  the 
defendant  O.  S.,  the  plaintiff  had  not  any  notice  thereof, 
and  he  does  not  admit  that  it  ajipeared  from  the  abstract 
of  title  that  such  was  the  case.  The  mines  were  not 
omitted  from  any  vakiation  delivered  to  the  plaintiff  as 
mentioned  in  the  counter-claim. 

6.  The  plaintiff  admits  that  when  he  took  his  security 
he  was  aware  that  there  was  indorsed  on  the  deed  by 
which  the  said  lands  wei*e  conveyed  by  J.  0.  A.  in  the 
counter-claim  named  a  notice  of  a  settlement  of  24th  March, 
1860,  but  he  had  no  further  or  other  notice  thereof,  and 
though  his  solicitor  inquired  after  such  settlement  none 
was  ever  produced. 

7 .  The  plaintiff  submits  that  if  it  shall  appear  that  no 
further  interest  in  the  said  mines  and  minerals  was 
conveyed  to  him  Ijy  his  said  security  than  one  undivided 
moiety  of  a  term  of  500  years  therein,  as  alleged  by  the 
said  counter-claim,  such  interest  is  effectually  included  in 
the  plaintift"s  said  security,  and  that  he  is  entitled  to  fore- 
close the  same. 


No.    11. 
Fraudulent  Misrejjresentation. 

187     .     B.  No. 
In  the  High  Court  of  J  ustice  in  Ireland, 
Division. 
Writ  issued  3rd  January,  1878. 
Between  A.  B.,        .         .         .         Plaintift", 
and 
E.  F.,        .         .         .         Defendant. 

Statement  of  Claim. 
1.  In  or  about  March,   1875,  the  defendant 

caused  to  be  inserted  in  the  [  ]  newspaper  au 

advertisement,  in  which  he  oJBfered  for  sale  the  lease, 
fixtures,  fittings,  goodwill,  and  stock-in-trade  of  a  baker's 
shoj)  and  business,  and  described  the  same  as  an  increasing 
business,  and  doing  twelve  sacks  a  week.  The  advertise- 
ment directed  application  for  particulars  to  be  made  to 
X.  Y. 


FRAUDULENT  MISREPRESENTATION.  738 

2.  The  plaintrff  having  seen  the  advertisement  applied     Foms. 

to  X.  Y.,  who  phiced  him  in  communication  with  the  AppmdixC. 

defendant,  and  negotiations  ensued  between  the  plaintiff  Pleadings. 

and  the  defendant  for  the  sale  to  the    plaintiff  of  the  ■.,~7, 

•111  n  orm  1 1 . 

defendants  bakeiy  at  with  the  lease,  faxtures, 

fittings,  stock-in-trade,  and  goodwill. 

3.  In  the  course  of  these  negotiations  the  defendant 
repeatedly  stated  to  the  plaintiff  that  the  business  was  a 
steadily  increasing  business,  and  that  it  was  a  business  of 
niox-e  than  12  sacks  a  week. 

4.  On  the  5th  of  April,  1875,  the  plaintiff,  believing 
the  said  statements  of  the  defendant  to  be  triie,  agreed 
to  purchase  the  said  premises  from  the  defendant  for 
£500,  and  paid  to  him  a  deposit  of  £200  ui  respect  of  the 
piu'chase. 

5.  On  the  15th  April  the  purchase  was  completed,  an 
assignment  of  the  lease  executed,  and  the  balance  of  the 
purchase-money  paid.  On  the  same  day  the  plaintiff 
entered  into  possession. 

6.  The  plaiijtifi'  soon  afterwards  discovei'ed  that  at  the 
time  of  the  negotiations  for  the  said  purchase  by  him  and 
of  the  said  agreement,  and  of  the  completion  thereof,  the 
said  business  was  and  had  long  been  a  declining  business ; 
and  at  each  of  those  times,  and  for  a  long  time  before,  it 
had  never  been  a  business  of  more  than  8  sacks  a  week. 
And  the  said  premises  were  not  of  the  value  of  £500,  or 
of  any  saleable  value  whatever. 

7.  The  defendant  made  the  false  representations  herein- 
before mentioned  well  knowing  them  to  be  false,  and 
fraudulently,  with  the  intention  of  inducing  the  plaintiff 
to  make  the  said  purchase  on  the  faith  of  them. 

The  plaintiff  claims  £  damages. 

[Title.] 

Statement  oj  Defence. 

1.  The  defendant  says  that  at  the  time  when  he  made  Defeuce. 
the  I'epresentations  mentioned  in  the  third  paragraph  of 

the  statement  of  claim  and  throughout  the  whole  of  the 
transactions  between  the  plaintiff  and  defendant,  and 
down  to  the  completion  of  the  purchase  and  the  relinquish- 
ment by  the  defendant  of  the  said  shop  and  business  to 
the  plaintiff,  the  said  business  was  an  increasing  business, 
and  was  a  business  of  over  12  sacks  a  week.  And  the 
defendant  denies  the  allegations  of  the  sixth  paragraph 
of  the  statement  of  claim. 

2.  The  defendant  repeatedly  during  the  negotiations 


7:34 


GUARANTEE. 


Form  11. 


Forms,  told  the  plaintifi"  that  he  must  uot  act  upon  any  statement 
AppmdixC  01"  representation  of  his,  but  must  ascertain  for  himself 
Pleadings,  the  extent  and  value  of  the  said  business.  And  the 
defendant  handed  to  the  plaintiif  for  this  purpose  the 
whole  of  his  books,  showing  fully  and  truthfully  all  the 
details  of  the  said  business,  and  from  which  the  nature, 
extent,  and  value  thereof  could  be  fully  seen,  and  those 
books  were  examined  for  that  purpose  by  the  plaintiff, 
and  by  an  accountant  on  his  behalf.  And  the  plaintiff 
made  the  purchase  in  reliance  upon  his  own  judgment, 
and  the  result  of  his  own  inquiries  and  investigations, 
and  not  upon  any  statement  or  representation  whatever 
of  the  defendant. 

[Title.] 

Rejjhj. 
The  plaintiff  joins  issue  upon  the  defendant's  statement 
of  defence. 


Ueply. 


Form  12. 


No.   12. 
Guarantee. 


187     .  B.  No. 


Guarantee.  In  the  High  Court  of  Justice, (a) 
Division. 
Writ  issued  3rd  January,  1878. 
Between  A.B.  and  CD.         .  .  .     Plaintiffs, 

and 
E.F.  and  G.H.         .  .  .      Defendants. 

Statement  of  Claim. 
Claim.  1.  The  plaintiffs  are  brewers,  carrying  on  their  business 

at  under  the  firm  of  X.  Y.  &  Co. 

2.  In  the  month  of  March,  1872,  M.N.  was  desirous 
of  entering  into  the  employment  of  the  })laintiffs  as  a 
traveller  and  collector,  and  it  was  agreed  between  the 
plaintiffs  and  the  defendants  and  M.N.,  that  the  plaintiffs 
should  employ  M.N.  uj)on  the  defendant  entering  into 
the  guarantee  hereinafter  mentioned. 

3.  An  agreement  iu  writing  was  accordingly  made  and 
entered  into,  on  or  about  the  30th  March,  1872,  between 
the  plaintiffs  and  the  defendant,  whereby  in  consideration 
that  the  plaintiffs  would  employ  M.N.  as  their  collector 
the  defendant  agreed  that  he  would  be  answerable  for  the 
due  accounting  by  M.N.  to  the  })laintirts  for  and  the  due 
payment  over  by  him  to  the  plaintiU's  of  all  moneys  which 
he  .should  receive  on  their  behalf  as  their  collector. 


(«)  "In  Ireland,"  omitted  in  aulhori/ed  form. 


LANDLORD  AND  TENANT — RE-ENTRY  AND  RENT.       735 

4.  The    plaintiffs    employed    M.IST.    as    theii-   collector     Forms, 
accordingly,   and   he  entered  upon   the    duties   of  such  AppendixC. 
employment,  and  continued  therein  down  to  the  31st  of  pleadings. 
December,  1873.  

5.  At  various  times  between  the  29th  of  September 
and  the  25th  of  December,  1873,  M.N.  received  on  behalf 
of  the  plaintiffs  and  as  their  collector  sums  of  money  from 
debtors  of  the  plaintiffs  amounting  in  the  whole  to  the 
sixm  of  £950 ;  and  of  this  amount  M.N",  neglected  to 
account  for  or  pay  over  to  the  plaintiffs  sums  amounting 
in  the  whole  to  <£227,  and  appropriated  the  last-mentioned 
sums  to  his  own  use. 

6.  Tlie  defendant  has  not  paid  the  last-mentioned  sums 
or  any  part  thereof  to  the  plaintiffs. 

The  plaintiffs  claim  : — 


No.  1 3.  Form  13. 

Recovery  of  Land,  Rent,  d'c. 

187     .     B.  No. 
lu  the  High  Coiu-t  of  Justice,  («)  Landlord 

Division.  ^^<^  ^^'^^"^ 

Writ  issued  3rd  August,  1878. 
Between  A.  B.  .  .  .     Plaintiff, 

and 
CD.  .  .  .      Defendant. 

Statement  of  Claim. 

1.  On  the  day  of  the  Plaintiff,  by  deed,  let  Claini- 
to  the  defendant  a  house  and  premises.  No.  52, 

Street,  in  the  city  of  Dublin,  for  a  term  of  21  years  from 
tlie         day  of  ,  at  the  yearly  rent  of  £120^  payable 

t|uai*terly. 

2.  By  the  said  deed  the  defendant  covenanted  to  keep 
the  said  house  and  premises  in  good  and  tenantable  repaii'. 

3.  The  said  deed  also  contained  a  claiise  of  re-entry, 
entitling  the  plaintiff  to  re-enter  upon  the  said  house  and 
premises,  in  case  the  rent  thereby  reserved  whether 
demanded  or  not,  should  be  in  arrear  for  21  days,  or  in 
case  the  defendant  should  make  default  in  the  performance 
of  any  covenant  upon  his  part  to  be  performed. 

4.  On  the  24th  June,  187  ,  a  quarter's  rent  became 
due  and  on  the  29th  of  September,  187  ,  another  quarter's 
rent  became  due  ;  on  the  21st  October,  187  ,  both  had 
Vieen  in  arrear  for  21  days,  and  l)oth  ai-e  still  due. 

5.  On  the  same  21st  October,   187    ,  the  house  and 

(a)   "In  Ireland,"  omitted  in  authorized  form. 


730 


NEGLIGENCE. 


Form  13. 


Forms,  premises  were  not  and  are  not  now  in  good  or  tenantable 
Appendix C.  I'epair,  and  it  would  require  the  ex})enditure  of  a  large 
rieadings.  sum  of  money  to  reinstate  the  same  in  good  and  tenantable 

repair,  and  the  plaintiffs  reversion  is  miich  depreciated 

in  value. 

The  ^)laintiff  claims  : — 

1.  Possession  of  the  said  house  and  premises. 

2.  £         for  arrears  of  rent. 

3.  £  damages  for  the  defendant's  breach  of  his 
covenant  to  repair. 

4.  £  for  the  occupation  of  the  hoi\se  and 
premises  from  the  29th  of  September,  187  , 
to  the  day  of  recovering  jjossession. 

The  plaintiff  proposes  that  this  action  should  be  tried 
in  the-county  of  the  city  of  Dublin. 


Form  14. 


No.  14. 
Negligence. 


B.  No. 


187 

Negligence  In  the  High  Court  of  Justice  in  Ireland, 

Division. 
Writ  issued  3rd  January,  1878. 
Between  A.  B.,         .         .         .         Plaintiff, 
and 
E.  F.,         .         .         .         Defendant. 

Statement  of  Claim. 
Claim  1.  The  plaintiff  is  a  shoemaker,  carrying  on  business 

at  .     The  defendant  is  a  soap  and  candle  manufac- 

turer, of 

2.  On  the  23rd  May,  1875,  the  plaintiff  was  walking 
eastward  along  the  south  side  of  [  ]  street,  in  the 
city  of  Dublin,  at  about  three  o'clock  in  the  afternoon. 
He  was  obliged  to  cross  [  ]  street,  which  is  a  street 
running  into  [  ]  street  at  right  angles  on  the  south 
side.  While  he  was  crossing  this  street,  and  just  before 
he  could  reach  the  foot  pavement  on  the  further  side 
thereof,  a  van  of  the  defendant's,  under  the  charge  and 
control  of. the  defendant's  servants,  was  negligently, 
suddenly,  and  without  any  warning  turned  at  a  rapid 
and  dangerous  pace  out  of  [  ]  street  into  [  ] 
street.  The  shaft  of  the  van  struck  the  plaintiff  and 
knocked  hiindown,  and  he  Avas  much  trampled  by  the  horse. 

3.  By  the  blow  and  fall  and  trampling  the  plaintift's 
left  arm  was  broken,  and  he  was  bruised  and  injured  on 
the  side  and  back,  as  well  as  internally,  and  in  conse- 


PROMISSORY   NOTE.  737 

quence  thereof  the  plaintiff  was  for  four  months  ill  and     Forms, 
in  suffering,  and  unable  to  attend  to  his  business,  and  AppmdixC. 
incurred  heavy  medical  aud  other  expenses,  and  sustained  Pleadings. 
great  loss  of  business  and  profits.  Formu. 

Tlie  plaintifi'  claims  X  damages. 

[Title.] 

Statement  of  Defence. 

1.  The  defendant  denies  that  the  van  was  the  defend-  Defence, 
ant's  van,  or  that  it  was  under  the  charge  or  control  of 

the  defendant's  servant.  The  van  belonged  to  Mr.  John 
Smith,   of  ,  a  carman  and  contractor  employed  by 

the  defendant  to  carry  and  deliver  goods  for  him ;  and  the 
persons  under  whose  charge  and  control  the  said  van  was 
were  the  servants  of  the  said  Mr.  John  Smith. 

2.  The  defendant  does  not  admit  that  the  van  was 
turned  out  of  [  ]  street,  either  negligently,  suddenly, 
or  without  warning,  or  at  a  rapid  or  dangerous  pace. 

3.  The  defendant  says  that  the  plaintiff  might  and 
could,  by  the  exercise  of  reasonable  care  and  diligence, 
have  seen  the  van  approaching  him,  and  avoided  any 
collision  with  it. 

4.  The  defendant  does  not  admit  the  statements  of  the 
third  paragraph  of  the  statement  of  claim. 

[Title.] 

Reply. 
The  plaintiff  joins  issue  upon  the  defendant's  statement  Reply. 
of  defence. 


Xo.  15.  Form  15. 

Promissory  Note. 

187  .     B.  No. 
In  the  High  Court  of  Justice  in  Ireland.  Promissory 

Di^dsion.  "°^^- 

Writ  issued  3rd  January,  1878. 
Between  A.B.  .         .         .         Plaintiff, 

and 
E.F.  .         .         .         Defendant. 

Statement  of  Claim. 

1.  The  defendant. on  the  day  of  ,  maxle  Claim, 
his  promissory  note,  whereby  he  promised  to  pay  to  the 
plaintiff  or  his  order  £              three  months  after  date. 

2.  The  note  became  due  on  the  day  of  , 
1874,  and  the  defendant  has  not  paid  it. 


738 


EECOVERY   OF   LAND — TITLE,    &C. 


Forms. 

Appendix  C. 
Pleadings. 

FoTin  15. 


Defence. 


Reply. 


Form  Ifi. 


The  plaintiff  claims  : — 

The  amount  of  the  note   and  interest  thereon   to 
judgment. 
The  plaintiff  proposes  that  this  action  should  be  tried 
in  the  county  of  Kildare. 

[Title.] 
Statement  of  Defence. 

1.  The  defendant  made  the  note  sued  upon  under  the 
folloAving  circumstances  : — The  plaintiff  and  defendant 
had  for  some  years  been  in  partnership  as  coal  merchants, 
and  it  had  been  agreed  between  them  that  they  should 
dissolve  pai'tnership,  that  the  plaintiff  should  retire  from 
the  business,  that  the  defendant  should  take  over  the 
whole  of  the  partnership  assets  and  liabilities,  and  should 
pay  the  plaintiff  tlie  value  of  his  share  in  the  assets  after 
deducting  the  liabilities. 

2.  The  plaintiff  thereupon  undertook  to  examine  the 
partnership  books,  and  inquire  into  the  state  of  the 
partnership  assets  and  liabilities  ;  and  he  did  accordingly 
examine  the  books,  and  make  the  said  inquiries,  and  he 
thereupon  represented  to  the  defendant  that  the  assets  of 
the  firm  exceaded  XI 0,000,  and  that  tlie  liabilities  of  the 
firm  were  under  <£3,000,  whereas  the  fact  was  that  the 
assets  of  the  firm  were  less  than  X5,000  and  the  liabilities 
of  the  firm  largely  exceeded  the  assets. 

3.  The  misi-epresentations  mentioned  in  the  last  para- 
graph induced  the  defendant  to  make  the  note  now  sued 
on,  and  there  never  was  any  other  consideration  for  the 
making  of  the  note. 

[Title.] 
Rej^ly. 
The  plaintiff  joins  issue  on  the  defence. 


No.  16. 
Recovery  of  Land  and  Mesne  Profits. 


187  .     B.  No. 


Recovery     In  the  High  Court  of  Justice  in  Ii-eland, 
Common  Pleas  Division. 


Landlord 
and  tenant. 


CiHiiii. 


Writ  issued  3i-d  January,  1878. 
Between  A.B.  .         .         .         Plaintifi", 

and 
CD.  .         .         .         Defendant. 

Statement  of  Claim. 
1 .   On  the  day  of  the  plaintiff  let  to  the 

defendant  a  house,  No.  52  -street,  in  the  city  of 


RECOVERY   OF   LAND — TITLE,   &C.  73^ 

Dublin,  as  tenant  from  year  to  year,  at  the  yearly  rent  of     Forms. 
£120,  payable  quarterly,  the  tenancy  to  commence  on  jppendixC. 
the  day  of  .  Pleadings. 

2.  The  defenclant  took  possession  of  the  house  and  con-  p^^j^^ 
tinued  tenant  thereof  until  the  day  of 

last,  when  the  tenancy  determined  by  a  notice  duly  given. 

3.  The  defendant  has  disregarded  the  notice  and  still 
retains  possession  of  the  house. 

The  plaintiff  claims  : — 

1.  Possession  of  the  house. 

2.  £  for  mesne  profits  from   the  day 
of 

The  plaintiff  proposes  that  this  action  should  be  tried 
in  the  county  of  the  city  of  Dublin. 


187  ,  No. 
In  the  High  Court  of  Justice  in  Ireland, 
Common  Pleas  Division. 
Between  A.B.        .         .         .         Plaintiff, 
and 
CD.         .         .         .         Defendant, 
(by  original  action), 

And  between  CD.         .         .         .         Plaintiff, 
and 
A.B.         .         .         .         Defendant, 

(by  counter-claim). 

The    defence   and  counter-claim   of  the    above-named 
CD. 

1 .  Before  the  determination  of  the  tenancy  mentioned  Defence, 
ill  the  statement  of  claim,  the  plaintiff  A.B.,  by  writing, 
dated  the  day  of  ,  and  signed  by  him,  agreed  to 
gi-ant  to  the  defendant  CD.  a  lease  of  the  house  men- 
tioned in  the  statement  of  claim,  at  the  yearly  rent  of 
£150,  for  the  term  of  twenty-one  years,  commencing  from 

the  day  of  ,  when  the  defendant  CD.'s  tenancy 

from  year  to  year  determined,  and  the  defendant  has  since 
that  date  been  and  still  is  in  possession  of  the  house  under 
the  said  agreement. 

2.  By  way  of  counter-claim  the  defendant  claims  to  Counter 
have  the  agreement  specifically  performed  and  to  have  a  d^i™- 
lease   granted  to  him  accordingly,  and  for  the  pui'pose 
aforesaid,  to  have  this  action  transferred  to  the  Chancery 
division. 


740 


RECOVERY    OF    LAND — TITLE,    (foC. 


Forms. 

Appendix  C. 
Pleadings. 

Form  16. 


Reply. 


187  ,  No. 
In  tlie  High  Coui-t  of  Justice  in  Ireland, 
Chancery  Division. 

(Transferred  by  order  dated         day  of         ). 

Between  A. B Plaintiff, 

and 
CD.       .         .         .         .     Defendant, 
(by  original  action), 

And  between  CD Plaintiff, 

and 
A.B.       .         .         .         .     Defendant, 
(by  counter-claim). 

The  reply  of  the  plaintiff  A.B. 

The  plaintiff  A.B.  admits  the  agreement  stated  in  the 
defendant  C.D.'s  statement  of  defence,  but  he  refuses  to 
grant  to  the  defendant  a  lease,  saying  that  such  agreement 
provided  that  the  lease  should  contain  a  covenant  by  the 
defendant  to  keep  the  house  in  good  repair  and  a  power 
of  re-entry  by  the  jjlaintiff  upon  breach  of  such  covenant, 
and  the  plaintiff  says  that  the  defendant  has  not  kept 
the  house  in  good  repair,  and  the  same  is  now  in  a 
dilapidated  condition. 

[Title.] 

Joinder  of  Issue. 
The    defendant    CD.   joins    issue    upon    the   plaintiff 
A.B.'s  statement  in  reply. 


Form  17. 


No.  17. 
Recovery  of  Land  and  Mesne  Frofits. 

187  .     B.     No. 
Recovery     In  the  High  Court  of  Justice  in  Ireland, 
***'*°^  Common  Pleas  Division. 

"Writ  issued  3rd  August,  1876. 
Between  A.B.  and  CD.         .         .     Plaintiffs, 
and 
K.F Defendant. 

Statement  of  Claim. 
Claim.  1.    K.L.,  late  of  Naas  in  the  county  of  Kildarc,  duly 

executed  his  last  will,  dated  the  4th  day  of  April,  1870, 
and  thereby  devised  his  lands  at  or  near  [  J,  and 

all  other  his  lands  in  the  county  of  [  ],  unto  and  to 

the  use  of  the  plaintiffs,  and  their  heirs,  upon  the  trusts 


RECOVERY   OF   LAND — TITLE,  &C.  741 

tliereiii  mentioned  for  the  benefit  of  liis  daughters  Margaret     Forms, 
and  Martha,  and  appointed  the  plaintiffs  executors  thereof.  Appendix  C. 

2.  K.L.   died  on  the  3rd  day  of  January,   1875,  and    Pleadings. 
his  said  will  was  proved  by  the  plaintiffs  in  the  Court  of  pormT?. 
Probate  on  or  about  the  4th  day  of  February,  1875. 

3.  K.L.  was  at  the  time  of  his  death  seised  ia  fee  of 
a  house  at  [  ],  and  two  farms  near  there  called 
respectively  the  [  ]  farm  and  the  [  ]  farm, 
the  [  ]  farm  containing  [  ]  acres,  and  the 
[  ]  farm  containing  [  ]  acres,  both  in  the 
eoimty  of  [              ]. 

4.  The  defendant,  soon  after  the  death  of  K.L.,  entered 
into  possession  of  the  house  and  two  farms,  and  has  refused 
to  give  them  up  to  the  plaintiff. 

The  plaintiffs  claim  : 

1 .  Possession  of  the  house  and  two  farms. 

2.  o£  for  mesne  profits  of  the  premises  from  the 
death  of  K.L.  till^such  possession  shall  be  given. 

The  plaintiff  proposes  that  this  action  should  be  tried 
in  the  county  of  [  ]. 

[Title.] 

Statement  of  Defence. 

1.  The  defendant  is  the  eldest  son  of  I.L.  deceased.  Defence, 
who  was  the  eldest  son  of  K.L.,  in  the  statement  of  claim 
named. 

2.  By  articles  bearing  date  the  31st  day  of  May,  1827, 
and  made  previoiis  to  the  marriage  of  K.L.  with  Martha, 
his  intended  wife,  K.L.,  in  consideration  of  such  intended 
mamage,  agreed  to  settle  the  house  and  two  farms  in 
the  statement  of  claim  mentioned  (and  of  which  he  was 
then  seised  in  fee)  to  the  use  of  himself  for  his  life,  with 
remainder  to  the  use  of  his  intended  wife  for  her  life, 
and  after  the  survivor's  decease,  to  the  use  of  the  heirs 
of  the  body  of  the  said  K.L.  on  his  wife  begotten,  with 
other  remainders  over. 

3.  The  marriage  soon  after  took  effect,  K.L.,  by  deeds 
of  lease  and  release,  bearing  date  respectively  the  4th 
and  5th  of  April,  1828,  after  reciting  the  articles  in 
alleged  performance  of  them,  conveyed  the  house  and  two 
farms  to  the  use  of  himself  for  his  life,  with  remainder 
to  the  use  of  his  wife  for  her  life,  and  after  the  decease 
of  the  survivor  of  them,  to  the  iise  of  the  heirs  of  the 
body  of  K.L.  on  the  said  Martha  to  be  begotten,  with 
other  remainders  over. 

4.  There  was  issue  of  the  marriage  an  only  son  Thomas 


742 


TRESPASS   TO    LAND. 


Forms.     L  and  two  daughters.     After  tlie  death  of  Thomas 

Appendix  c.  L  ,   which  took  place  in  Febrviary,  1864,  K.L.  on 

Pleadings,  the  3rd  May,    1864,   executed  a  disentailing  assurance, 

which  was  duly  enrolled  and  thereby  conveyed  the  house 

°^™  ^^'      and  two  farms  to  the  use  of  himself  in  fee. 

[Title.] 
Reply. 
Reply.  The  plaintiffs  join  issue  upon  the  defendant's  statement 

of  defence. 


Form  18. 


Claim. 


No.  18. 
Trespass. 


187 


No. 


Trespass      In  the  High  Coui-t  of  Justice  in  Iieland. 
*°^=^"'^-  Division. 

Writ  issued  3rd  August,  1878, 


Between  A.B. 
E.F. 


and 


Plaintifi; 
Defendant. 


Statement  of  Claim. 

1.  The  plaintiff  was  on  the  5th  March,  1878,  and  still 
is  the  owner  and  occupier  of  a  farm  called  [  ] 
Farm,  in  the  parish  of             and  county  of  [              ]. 

2.  A  private  road,  knoAvn  as  Highfield  Lane,  runs 
through  a  portion  of  the  plaintiff's  farm.  It  is  bounded 
upon  both  sides  by  fields  of  the  plaintiff's,  and  is 
separated  therefrom  by  a  hedge  and  ditch. 

3.  For  a  long  time  prior  to  the  5th  March,  1878,  the 
defendant  had  wrongfully  claimed  to  iise  the  said  road 
for  his  horses  and  carriages  on  the  alleged  ground  that 
the  same  was  a  public  highway,  and  the  plaintiff  had 
frequently  warned  him  that  the  same  was  not  a  public 
highway,  but  the  plaintiff's  private  road,  and  that  the 
defendant  must  not  so  use  it. 

4.  On  the  5th  March,  1878,  the  defendant  came  with  a 
cart  and  horse,  and  a  lai-ge  number  of  servants  and 
workmen,  and  forcilily  used  the  road,  and  broke  down  and 
removed  a  gate  which  the  plaintifi'  had  caused  to  be  placed 
across  the  same. 

5.  The  defendant  and  his  servants  and  workmen  on 
the  same  occasion  pulled  down  and  damaged  the  plain- 
tiff's hedge  and  ditch  u])on  each  side  of  the  road,  ;ind  went 
upon  the  plaintiff's  field  beyond  the  hedge  and  ditch,  and 
injured  the  crops  there  growing,  and  dug  up  and  injui-ed 
tlic  soil  of  the  road  ;  and  in  any  case  the  acts  mentioned 


SHIPPER  AGAINST  SHIP-OWNER — DAMAGE  TO  CARGO.  74-3 

in  this  paragraph  were  wholly  unnecessary  for  the  assertion     Forms, 
of  the  defendant's  alleged  I'ight  to  use,  or  the  user  of  the  Appendix  V. 
said  road  as  a  highway.  Pleadings. 

The  plaintiff  claims  : —  Form  is. 

1.  Damages  for  the  wrongs  complained  of. 

2.  An  injunction  restraining  the  defendant  from  any 

repetition  of  any  of  the  acts  complained  of. 

3.  Such  further  relief  as  the  nature  of  the  case  may 

require. 
The  plaintiff  proposes  that  this  action  should  be  tried 
in  the  county  [  ]. 

[Title.] 

Statement  of  Defence. 

1.  The  defendant  says  that  the  road  was  and  is  a  public  Defence, 
highway  for  horses  and  carriages  ;  and  a  few  days  before 

the  5th  March,  1878,  the  plaintiff  \vrongfully  erected  the 
gate  across  the  road  for  the  2»urpose  of  obstructing  and 
preventing,  and  it  did  obstruct  and  prevent  the  use  of 
the  road  as  a  highway.  And  the  defendant  on  the  said 
5th  March,  1878,  caused  the  said  gate  to  be  removed, 
in  order  to  enable  him  lawfully  to  use  the  road  by  his 
horses  and  carriages  as  a  highway. 

2.  The  defendant  denies  the  allegations  of  the  fifth 
paragraph  of  the  statement  of  claim,  and  says  that  neither 
he  nor  any  of  his  workmen  or  servants  did  any  act,  or 
use  any  violence  other  than  was  necessary  to  enable  the 
plaintiff  lawfidly  to  use  the  highway. 

[Title.] 
Reply. 
The  plaintiff  joins  issue  upon  the  defendant's  statement  Reply, 
of  defence. 

Ko.  19.  Form  19. 

187     .     B.     No. 
In  the  High  Court  of  J  ustice  in  Ireland. 
Division. 
Writ  issued 
Between  A.B.  and  CD.  .  .     Plaintiffs, 

and 
E.F.  and  G.H.  .  .     Defendants. 

Statement  of  Claim. 
1.  In  the  month  of  [  ],  Messrs.  L.  and  Claim. 

Company,  of  Alexandria,  caused  to  be  shipped  6,110 
ardebs  of  cotton  seed  on  board  the  vessel  "  Ida,"  then 


744  SHIPPER  AGAINST  SHIP-OWNER — DAMAGE  TO  CARGO. 

Forms,      lying  in  Port  Said  (Egypt),  and  the  then  master  of  the 

AppendixC.  vessel  received  the  same,  to  be  carried  from  Port  Said  to 

Pleadings.   Gork,  upon  the  tei'ms  of  three  bills  of  lading,  signed  by 

the  master,  and  delivered  to  Messrs.  L.  and  Company. 

2.  The  three  bills  of  lading,  being  in  form  exactly 
similar  to  one  another,  were  and  are,  so  far  as  is  m.aterial 
to  the  present  case,  in  the  words,  letters,  and  figures  follow- 
ing, that  is  to  say  : — 

"  Shipped  in  good  order  and  well  conditioned  by 
L.  &  Co.,  Alexandria  (Egypt)  in  and  upon  the  good 
ship  called  the  '  Ida,'  whereof  is  mastei'  for  the  present 
voyage  Ambrozio  Chiapella,  and  now  riding  at  anchor  in 
the  port  of  Port  Said  (Egypt)  and  bound  for  Cork,  six 
thousand  one  hundred  and  ten  ardebs  cotton  seed,  being 
marked  and  numbered  as  in  the  margin,  and  are  to  be 
delivered  in  the  like  good  order  and  well  conditioned  at 
the  aforesaid  port  of  Coi'k  (the  act  of  God,  the  Queen's 
enemies,  fire  and  all  and  every  other  dangers  and  accidents 
of  the  seas,  rivers,  and  navigation  of  whatever  nature  and 
kind  soever,  save  risk  of  boats  so  far  as  ships  are  liable 
thereto  excepted),  unto  order  or  to  assigns  paying  freight 
for  the  said  goods  at  the  rate  of  (196\)  say  nineteen  shillings 
sterling  in  full  per  ton  of  20  cwt.  delivered  with  £10 
gratuity.  Other  conditions  as  per  charter-party,  dated 
London,  4th  October,  1876,  with  primage  and  average 
accustomed.  In  witness  whereof  the  master  or  pxirser  of 
the  said  ship  hath  afiirmed  to  three  bills  of  lading  all  of 
this  tenor  and  date,  the  one  of  which  three  bills  being 
accomplished  the  other  two  to  stand  void.  Dated  in  Port 
Said  [  ].      100  dunnage  mats.     Fifteen 

working  days  remain  for  discharging." 

3.  The  persons  constituting  the  firm  of  Messrs.  L.  and 
Company  are  identical  with  the  members  of  the  plaintiffs' 
firm. 

4.  The  vessel  sailed  on  her  voyage  to  Gork,  and  duly 
arrived  there  on  or  about  the  [         ]  day  of  [  ]. 

5.  The  cotton  seed  was  delivered  to  the  plaintiffs  but 
not  in  as  good  order  and  condition  as  it  was  in  when  shipped 
at  Port  Said  ;  but  was  delivered  to  the  plaintiffs  greatly 
damaged. 

G.  The  deterioration  of  the  cotton  seed  was  not  occa- 
sioned by  any  of  the  perils  or  causes  iu  the  bills  of  lading 
excepted. 

7.  By  I'eason  of  the  premises  the  plaintiffs  lost  a  great 
part  of  the  value  of  the  said  cotton  seed,  and  were  put  to 
great  expense  in  and  about  keeping, '  warehousing,  and 
improving  the  condition  of  the  said  cotton  seed,  and  in 
and  about  having  the  same  surveyed. 


DEMURRER.  745 

The  plaiatiffs  claim  tlie  follow  iug  relief  : —  Forms. 

1.  £  for  damages.  AppendixC. 

2.  Such  further   relief  as  the  nature   of   the   case   Pleadings. 

requii-es.(rt)  „       ~ 

^^        [Title.]  ^''''^''' 

Statement  of  Defence. 

1.  They  deny  the  truth  of  the  allegations  contained  in  Defence, 
the  fifth,  sixth,  and  seventh  articles  of  the  said  petition. 

2.  The  deterioration,  if  any,  to  the  cotton  seed  was 
occasioned  by  the  character  and  quality  of  the  cottou  seed 
when  shipped  on  board  the  "  Ida,"  and  by  the  inherent 
qualities  of  the  cotton  seed,  and  by  shipping  water  in  a 
severe  storm  which  occurred  on  the  day  of  in 
latitude  during  the  voyage,  or  by  some  or  one  of  such 
causes. 

[Title.] 
Rejyhj. 
The  plaintiffs  join  issue  upon  the  statement  of  defence.  Reply. 


No.  20.  Form  20. 

Form  of  Demurrer. 
In  the  High  Court  of  Justice  in  Ireland. 
Division. 

A.B.  V.  CD. 
The  defendant  [plaintiff]  demurs  to  the  [plaintiff's  state- 
ment of  complaint  or  defendant's  statement  of  defence,  or 
of  set-off,  w  of  counter-claim],  [or  to  so  much  of  the  plain- 
tiffs statement  of  complaint  as  claims  .  .  .  .  or  as 
alleges  as  a  breach  of  contract  the  matters  mentioned  in 
paragraph  6,  or  as  the  case  may  5e],  and  says  that  the 
same  is  bad  in  law  on  the  ground  that  \_here  state  a  ground 
of  demurrer^  and  on  other  grounds,  sufficient  in  law  to 
sustain  this  demurrer. 


No.  21.  Form     1 

Mem,orandum  of  Entry  of  Demurrer  for  Argument. 

1878.     B.     No. 
In  the  High  Court  of  Justice. 

Division.  , 

A.B.  V.  CD. 
Enter  for  the  argument  the  demui'rer  of 
to 

X.Y., 
Solicitor  for  the  jjlaintiff  [or,  &c.] 

(a)  No  statement  in  the  above  seems  to  connect  the  defendants  wit  i 
the  transaction. 

2  K 


[     74G     ] 


Forms. 

AppettdixD. 
Form  1. 


APPENDIX  D, 


Form  2. 


Form  3. 


Forms  of  Judgment. 
1.  Default  of  Appearance  and  Defence  in  case  of 


No. 


Liquidated  Demand. 

187     .     B. 
In  the  Higli  Court  of  Justice  in  Ireland, 
Division. 
Between  A.B.         .  .  .     Plaintiff, 

and 
CD.  and  E.F.  .  .     Defendants. 

30tli  November,  1878. 

The  defendants  [or  the  defendant  CD.]  not  having 
appeared  to  the  writ  of  summons  herein  [or  not  havini/ 
delivered  any  statement  of  defence],  it  is  this  day  adjudged 
that  the  phiintiff  recover  against  the  said  defendant 
£  ,  and  costs,  to  be  taxed. 


2.  Judgment  in  default  of  Apj)earance  in  Action 
for  Recovery  of  Land. 
[Title,  &c.] 
30th  November,  1878. 

No  appearance  having  been  entered  to  the  writ  of 
summons  herein,  it  is  this  day  adjudged  that  the  plaintiff 
recover  possession  of  the  land  in  the  said  writ  mentioned. 


No. 


3,  Judgment  in  default  of  Appearance  and  Defence 
after  Assessment  of  Damages. 

187     .     B. 
In  the  High  Court  of  J^istice  in  Ireland. 
Division. 
Between  A.B.  and  CD. 
and 
E.F.  and  G.H. 
30th  November,  1878. 

The  defendants  not  having  appeared  to  the  writ  oi^ 
summons  herein  [or  not  having  delivered  a  statement  oj 
dejence~\,  and  a  writ  of  inquiry  dated  1878,  having 

been  issued  directed  to  the  sheriff  of  ,  or  an 

inquiry  having  been  instituted  before  the  chief  clerk,  at 
Cliaiubcrs,  or  an  inqiiiry  having  been  instituted  before 


Plaintiffs, 
Defendants. 


FORMS   OF  JUDGMENTS.  747 

the  master  of  tlie  said  court,  to  assess  tlie  damages  wliich     Forms, 
the  plaintiff  was  entitled  to  recover,  and  the  said  sheriff,  AppendixD. 

chief  clerk,  or  master,  having  by  his  return  [or  certificate]       

dated  the  1878,  returned  or  certified  that  the  said 

damages  have  been  assessed  at  £  it  is  adjudged 

that  the  plaintiff  recover  £  ,  and  costs  to  be 

taxed. 


4.  Judgment  at  Trial  hy  Judge  without  a  Jury.  Form  4. 

187     .     B.  No. 
Division. 

day  of  18     . 

\_If  in  CJiaiwery  Division,  name  of  Judge.^ 

Between  A.B.      .  .  .  Plaintiff, 

and 
CD.,  E.F.,  and  G.H.,    Defendants. 

This  action  coming  on  for  trial  [the  day  of 

and]  this  day,  before  in  the  presence  of  counsel 

for  the  plaintiff  and  the  defendants  [or,  if  some  of  the 
dejendaiits  do  not  appear,  for  the  plaintiff  and  the  defendant 
CD.,  no  one  appearing  for  the  defendants  E.F.  and  CH., 
although  they  were  duly  served  with  notice  of  trial  as  by 
the  affidavit  of  filed  the  day  of  appears,] 

upon  hearing  the  probate  of  the  will  of  ,  the  answers 

of  the  defendants  CD.,  E.F.,  and  G.H.,  to  interroga- 
tories, the  admission  in  writing,  dated  and  signed 
by  [Mr.  the  solicitor  for]  the  plaintiff  A.B.  and 
by  [Mr.  the  solicitor  for]  the  defendant  CD.,  the 
affidavit  of  filed  the  day  of  ,  the  affidavit 
of  filed  the  day  of  ,  the  evidence  of 
taken  on  their  oral  examination  at  the  trial,  and  an  exhibit; 
marked  X,  being  an  indentiu'e  dated,  &c.  and  made  between 
[parties],  and  what  was  alleged  by  counsel  on  both  sides  : 
This  Court  doth  declare,  &c. 

And  this  Court  doth  order  and  adjudge,  &c. 


5.  Judgment  after  Trial  by  a  Jury.  Porm  5. 

[Title,  &c.] 
15th  November,  1878. 

Tlie  action  having  on  the  12th  and  13th  November, 
1878,  been  tried  before  the  Honorable  Mr.  Justice 
and  a  special  jury  of  the  county  of  ,  and  the  jury 

2  K  2 


Form 


748      '  FORMS   OF  PRECIPE. 

Forms,     having  found  [state  findings  as  in  officpys  certificate],  and 
AppeiidixD.  the   said    Mr.  Justice  having  ordered  that  judg- 

ment be  entered  for  the  plaintiff  for  £  and  costs 

of  suit  [or  as  the  case  may  he]  :  Therefore  it  is  adjudged 
that  the  phiintiif  recover  against  the  defendant  ,£ 
and  £,  for  his  costs  of  siiit  [or  that  the  plaintiff  recover 
nothing  against  the  defendant  and  that  the  defendant 
recover  against  the  plaintiff  £,  fjr  his  cost  of  defence, 
or  as  the  case  may  he]. 


Form  G.  6.  Judgment  upon  Motion  for  Judgment. 

[Title,  &c.] 
30th  November,  1878. 

This  day  before  Mr.  X.,  of  counsel  for  the 

jilaintiif  [or  as  the  case  may  he],  moved  on  behalf  of  the 
said  [state  judgment  moved  for],  and  the  said 

Mr.   X.   having  been  heard  of  counsel   for  and 

Mr.  Y.  of  counsel  for  the  Court  adjudged. 


AppemUxE.  APPENDIX  E. 

Form  1. 

EoRMS  OF  Praecipe. 

1,  Fieri  facias. 

1878.     B.  No. 
In  the  High  Court  of  Justice  in  Ireland. 
Division. 
Between  A.B.    .  .  .  .  .     Plaintiff, 

and 
CD,  and  others    .         .  .     Defendants. 

Seal  a  "writ  of  fieri  facias  directed  to  the    Sherifl'  of 
to   levy   against  CD.  the  sum  of  £, 

and  interest  thereon  at  the  rate  of  £  per  centum  per 

annum  from  the  day  of  [and  £  costs]  to 

Judgment  [or  ordei']  dated  day  of 

[Taxing  master's  certificate,  dated         day  of         .] 
X.Y., 
Solicitor  for 
[party  on  vhose  hehaJf  icrit  is  to  issue.] 


FORMS   OF   PE^CIPE. 


749 


2.  Elegit. 


187 


B.No. 


In  tlie  High  Coiu-t  of  Justice  in  Ireland. 
Division. 
Between  A.B.    .         .         .         .  .     Plaintiff, 

and 
CD.  and  others  .  .    Defendants. 

Seal  a  writ  of  elegit  dii'ected  to  the  Sheriff  of 
against  of  in  the  county  of  for 

not  pajdng  to  A.B.   the  sum  of  £  together  with 

interest  thereon,  from  the  day  of  [and  the 

sum  of  £  for  costs],  with  interest  thei-eon  at  the 

rate  of  £4  per  centum  per  annum. 
Judgment  [or  order]  dated  day  of  18     . 

[Taxing  master's  certificate,  dated         day  of  18     .] 

X.Y. 

SoKcitor  for 


Forms. 

AppendixE, 
Forjii  2. 


3.   Ye'iiditioni  Exponas. 
187 
In  the  High  Coui-t  of  Justice  in  Ireland. 
Division. 
Between  A.B. 

and 
CD.  and  others 
Seal   a  writ  of  venditioni    exponas    directed   to   the 
sheriff  of  to  sell  the  goods  and  of  CD.  taken 

under  a  wi-it  of  fieri  facias  in  this  action  tested 
day  of 

X.Y., 

SoKcitor  for  , 


Form 


.     B.  No. 

Plaintiff, 
Defendants. 


4.    Writ  of  Sequestration. 

187     .     B.  No. 
In  the  High  Cou^rt  of  Justice  in  Ireland. 
Division. 
Between  A.  B.        .         .  .         .     Plaintiff, 

and 
CD.  and  others         .         .     Defendants. 
Seal  a  writ  of  sequestration  against  C.  D.  for 

not  at  the  suit  of  A.B.   dii-ected  to  \_names  of 

se<£uestrator  or  sequestratOTs\ 

Order  dated  day  of 


Form  4. 


750 


FORMS   OF   PE^CIPE. 


Forms.  6.    Writ  of  Possession. 

AppendixE.  187      .      B.  No. 

Form7       In  tlie  High  Court  of  Justice  in  Ireland. 

Division. 

Between  A.B.  .  .  /        .     Plaintiff, 

and 
CD.  and  others         .  .    Defendants. 

Seal  a  writ  of  possession  directed  to  the  sheriff  of 
to  deliver  possession  to  A.B.  of 

Judgment  dated         day  of 


Form  6. 


6.   Writ  of  Delivery. 

187     .     B.  No. 
In  the  High  Coui^t  of  Justice  in  Ireland. 
Division. 

Between  A.B Plaintiff, 

and 
CD.  and  others         .  .    Defendants. 

Seal  a  writ  of  delivery  directed  to  the  sheriff  of 
to  make  delivery  to  A.B.  of 


Form  7. 


7.   Writ  of  Attachment. 
187 
In  the  High  Court  of  J  ustice  in  Ireland. 
Division. 

Between  A.B. 

and 
CD.  and  othei-s 

Seal  in  pursuance  of  order  dated 
attachment  directed  to  the  sheriff  of 
for  not  delivering  to  A.B. 


.     B.  No. 

Plaintiff, 

Defendants. 

day  of  an 

against  CD. 


[    75]     ] 

Forms. 
APPENDIX  F.  Ap^icF. 

Form  1. 

FoKMS  OF  Writs. 
L    Writ  of  Fieri  Facias. 

187  .     B.  No. 
In  tlie  High  Coiii-t  of  Justice  in  Ii'elancl. 
Division. 

Between  A.B.         .         .         .         .     Plaintiff, 
and 
CD.  and  otliei-s         ,         -     Defendants. 

Victoria,  by  the  grace  of  God  of  the  United  Kingdom 
of  Great  Britain  and  Ireland  Queen,  Defender  of  the 
Faith. 

To  the  sheriff  of  greeting. 

We  command  you  that  of  the  goods  and  chattels  of 
CD.  in  your  bailiwick  you  cause  to  be  made  the  sum  of 
£,  and  also  interest  thereon  at  the  I'ate  of  £ 

per  centum  per  annum  from  tlie  day  of  * 

which  said  sum  of  money  and  interest  wei'e  lately  before 
us  in  our  High  Court  of  Justice  in  a  cei-tain  action  [or 
certain  actions,  as  the  case  may  he'\  wherein  A.B.  is 
plaintiff  and  CD.  and  othei-s  are  defendants  [<yr  in  a  cer- 
tain matter  there  depending  intituled  "  In  the  matter 
of  E.F."  as  the  case  may  he~\  by  a  judgment  \or  order,  as 
the  case  may  he~\  of  our  said  Court,  bearing  date  the 
day  of  adjudged  \or  ordered,   as  the  case  viay 

6e]  to  be  paid  by  the  said  CD.  to  A.B.,  together  with 
certain  costs  in  the  said  jud^ient  \or  order,  as  the  case 
Tnay  he\  mentioned,  and  which  costs  have  been  taxed 
and  allowed  by  one  of  the  taxing  masteis  of  our  said 
Court  at  the  sum  of  £  as  appears  by  the  certificate 

of  the  said  taxing  master  dated  the  day  of 

And  that  of  the  goods  and  chattels  of  the  said  CD.  iu 
your  bailiwick  you  further  cause  to  be  made  the  said 
sum  of  £,  [costs]  together  with  interest  thereon 

at  the  rate  of  c£4  per  centum  per  annum  from  the 
day  of  ,t  and  that  you  have  that  money  and  in- 

*  Day  of  the  judgment  or  order,  or  day  on  which  money  directed 
to  be  paid,  or  day  from  which  interest  is  directed  by  the  order  to  run, 
■  as  the  case  may  be. 

t  The  date  of  the  certificate  of  taxation.  The  writ  must  be  so 
moulded  as  to  follow  the  substance  of  the  judgment  or  order. 


7o2  WEITS   OF   EXECUTIOX. 

Forms,  teicst  before  us  in  our  said  Court  immediately  after  tlie 
AppendixF.  execution  hereof  to  be  paid  to  the  said  A.B.  in  pursuance 
of  the  said  judgment  \or  order,  as  the  case  may  he~\.  And 
in  what  manner  you  shall  have  executed  this  our  writ 
make  appear  to  us  in  our  said  Court  immediately  after 
the  execution  thereof.     And  have  there  then  this  writ. 

Witness,  &c. 


Form  1. 


Form  2.  2.  Writ  of  Venditioni  Exponas. 

187  .     B.  No. 
In  the  High  Court  of  Justice.  («) 
Division. 

Between  A.B.,  .         .         .         Plaintiff, 
and 
CD.  and  others    .  Defendants. 

Victoria,  by  the  Grace  of  God  of  the  United  Kijigdom 
of  Great  Britain  and  Ireland  Queen,  Defender  of  the 
Faith. 

To  the  sheriff  of  greeting. 

Whereas  by  our  writ  we  lately  commanded  you  that  of 
the  goods  and  chattels  of  CD.  [Aere  recite  the  fieri  facias 
to  the  end].     And  on  the  day  of  you  retvu'ned 

to  lis  in  the  Division  of  our  High  Court  of  Justice, 

aforesaid,  that  by  virtue  of  the  said  writ  to  you  directed 
you  had  taken  goods  and  chattels  of  the  said  CD.,  to  the 
value  of  the  money  and  interest  aforesaid,  which  said 
goods  and  chattels  remained  in  your  hands  unsold  for 
want  of  buyers.  Therefore,  we  being  desirous  that  the 
said  A.B.  should  be  satisfied  his  money  and  interest 
aforesaid,  command  you  that  you  expose  to  sale  and  sell, 
or  cavise  to  be  sold,  the  goods  and  chattels  of  the  said 
CD.,  by  you  in  foi-m  aforesaid  taken,  and  every  part 
thereof,  for  the  best  price  that  can  be  gotten  for  the 
same,  and  have  the  money  arising  from  such  sale  before 
us  in  our  said  Court  of  Justice  immediately  after  the 
execution  hereof,  to  be  paid  to  the  said  A.B.  And  have 
there  then  this  writ. 

Witness  ourselves  at  Dublin,  the  day  of 

in  the  year  of  our  reign. 

(«)   ''  In  Ireland  "  I'mittcd. 


WRITS   OF   EXECUTION,  7oo 

3.    Writ  of  Possession,  Forms. 

187    .       B.  No.  Appendix F. 

In  the  High  Court  of  Justice  in  Ireland,  Form  3, 

Division. 
Between  A.B,      .         .         .         Plaintiff, 
and 
CD.  and  others      .         Defendants. 

Victoria,  to  the  sheriff  of  ,  gi-eeting  : 

Whereas  lately  in  our  High  Court  of  Justice,  by  a  Jvidg- 
ment  of  the  Division  of  the  same  Court  [A.B. 

recovered]  or  [E.F.  was  ordered  to  deliver  to  A.B.]  posses- 
sion of  all  that  with  the  appiu-tenances  in 
your  bailiwick  :  Therefore,  we  command  you  that  you 
omit  not  by  any  reason  of  any  liberty  of  your  county, 
but  that  you  enter  the  same,  and  without  delay  you  cause 
the  said  A.B.  to  have  possession  of  the  said  land  and 
premises  with  the  appurtenances.  And  in  what  manner 
you  have  executed  this  our  Aviit  make  appear  to  the 
Judges  of  the  Division  of  our  High  Court  of 
Justice  immediately  after  the  execution  hereof,  and  have 
you  there  then  this  writ.     Witness,  &c. 


4.   Writ  of  Delivery.  Porm  4. 

187  .     B.  No. 
In  the  High  Court  of  Justice  in  Ireland, 
Division. 
Between  A.B.      .         .         .         Plaintiff, 
and 
CD.  and  others      .         Defendants. 

Victoria,  by  the  grace  of  God  of  the  United  Kingdom 
of  Great  Britain  and  Ireland  Queen,  Defender  of  the 
Faith,  to  the  sheriff  of  gi-eeting  :  We  command 

you,  that  -without  delay  you  cause  the  folio-wing  chattels, 
that  is  to  say  [Aere  enumerate  the  duittels  recovered  hy  the 
judgment,  for  the  return  oj  which  execution  has  heen  ordered 
to  issue'],  to  be  returned  to  A.B.  which  the  said  A.B.  lately 
in  our  recovered  against  CD.  [or  CD.  was  ordered 

to  deKver  to  the  said  A.B.]  in  an  action  in  the 
division  of  our  said  Court.     And  we  further  command 
you  that  if  the  said  chattels  cannot  be  found  in  your 
bailiwick,  you  distrain  the  said  CD.  by  all  his  lairds  and 

2  k3 


7")  4;  WRITS   OF    EXECUTION. 

Forms,      chattels  in  your  bailiwick,  so  that  neither  the  said  CD.  or 
AtamidixF.  any  one  for  him  do  lay  hands  on  the  same  until  the  said 
CD.  render  to  the  said  A.B.  the  said  chattels ;  and  in 
Avhat  manner  you  shall  have  executed  this  our  writ  make 
appear  to  the  Judges  of  the  Division  of  our  High 

Court  of  Justice,  immediately  after  the  execution  hereof, 
and  have  you  there  then  this  writ.     Witness,  &c. 


Form  4. 


The  like,  but  instead  of  a  Distress  until  the  Chattel  is 
returned,  commanding  the  Sheritf  to  levy  on  Defendant's 
Goods  the  assessed  Value  of  it. 

\Proceed  as  in  the  'preceding  form  until  the  *,  and  then 
tliusi]  And  we  further  command  you,  that  il  the  said 
chattels  cannot  be  found  in  your  bailiwick,  of  the  goods 
and  chattels  of  the  said  CD.  in  your  bailiwick  you  cause 
to  be  made  £  \the  assessed  value  of  the  chattels], 

and  in  what  manner  you  shall  have  executed  this  our  writ 
make  appear  to  the  Judges  of  the  Division  of 

our  High  Coui-t  of  Justice  at  Dublin,  immediately  after 
the  execution  hereof,  and  have  you  there  then  this  writ. 
Witness,  ikc. 


Torm  5.  5.    Writ  of  Attachment. 

187  .     B.  No. 
]  n  the  High  Court  of  Justice  in  Ireland. 
Division. 

Between  A.B.      .  '       .  .  Plaintiff, 

and 
CD.  and  others     ,  Defendants. 

Victoria,  kc. 

To  the  sheriff  of  ,  greeting. 

We  command  you  to  attach  CD.  so  as  to  have  him 
before  us  in  the  Division  of  our  High  Court  of 

J  ustice  wheresoever  the  said  Court  shall  then  be,  there  to 
answer  to  us,  as  well  touching  a  contempt  which  he  it  is 
alleged  hath  committed  against  us,  as  also  such  other 
matters  as  shall  be  then  and  there  laid  to  his  charge,  and 
further  to  peiform  and  abide  such  order  as  our  said  Coui't 
sliall  make  in  this  l>ehalf,  and  hereof  fail  not,  and  briiig 
this  writ  with  you.     Witness,  ikc. 


WRITS   OF   EXECUTIOX.  i}0 

6.    Writ  of  Sequestration.  Forms. 

187       .       B.   N"o.  Appendix  F. 

h\  the  High  Court  of  Justice, (a)  Fomic. 

Division. 
Between  A.B.    .         .         .  Plaintiff, 

and 
CD.  and  others   .  Defendants. 

Victoria,  &c. 

To  \piames  of  sequestrator  or  sequestrator's']  greeting. 

"S\Tiereas  lately  in  the  Division  of  our  High 

Court  of  Jvistice  in  a  certain  action  there  depending 
wherein  A.B.  is  plaintiffand  CD.  and  others  are  defendants 
[or,  in  a  certain  matter  then  depending,  intituled  "  In  the 
matter  of  E.F.,"  as  the  case  may  6e]  by  a  judgment  \or  order 
as  the  case  may  6e]  of  our  said  Court  made  in  the  said 
action  [or  matter],  and  bearing  date  the  day  of 

,187  ,  it  was  ordered  that  the  said  C.D. 
should  [pay  into  Court  to  the  credit  of  the  said  action 
the  sum  of  £,  ,  or,  as  the  case  may  6e].     Know,  there- 

fore, that  we,  in  confidence  of  your  piiideuce  and  fidelity, 
have  given  and  by  these  presents  do  give  to  you  full  power 
and  authority  to  enter  upon  all  the  messuages,  lands,  tene- 
ments, and  real  estate  whatsoev^er  of  the  said  CD.,  and  to 
collect,  receive,  and  sequester  into  your  hands  not  only 
all  the  rents  and  profits  of  his  said  messuages,  lands,  tene- 
ments, and  real  estate,  but  also  all  his  goods,  chattels,  and 
pei'sonal  estates  whatsoever ;  and  therefore  we  command 
you  that  you  do  at  certain  proper  and  convenient  days 
and  hours,  go  to  and  enter  upon  all  the  messuages,  lands, 
tenements,  and  real  estates  of  the  said  CD.,  and  that  you 
do  collect,  take,  and  get  into  your  hands  not  only  the  rents 
and  profits  of  his  said  real  estate,  but  also  all  his  goods, 
chattels,  and  personal  estate,  and  detain  and  keep  the  same 
under  sequestration  in  your  hancLs  until  the  said  C.D.  shall 
[pay  into  Coiu-t  to  the  credit  of  the  said  action  the  sum 
of  £,  or,  as  the  case  may  6e,]  clear  his  contem]jt, 

or  our  said  Court  make  other  order  to  the  contrary. 
Witness,  &c. 

(a)  "  111  Lrtluiid  "  uniitted. 


'56 


WEITS   OF   EXECUTION. 


Forms. 
Appendix  Q. 


ft 


o 
o 

p 


< 


o 

1^ 


Judge. 


GENEKAL   SUMMONS  IN   CHAMBERS.  ( -U 

No.  2.  Forms. 

Form  of  General  Summons  in  Chambers  by  Judge.         ApptndixO. 
In    Queen's    Bench    [or    Common    Pleas    or    Exchequer  Z^^^^\ 

Division.]  summons 

Between  Joseph  Wilson,  .         .     Plaiutift',  bers  by 

against 
William  Jackson,    ....     Defendant. 

Let  all  parties  concerned  attend  before  the  Judge  at 
Chambers,  at  the   Four  Courts,  Dublin,  on  ,  the 

day  of  ,  at         of  the  clock,  in  the         noon, 

on  the  hearing  of  an  application  on  the  part  of  \Jiere  state 
on  v)hose  helialf  the  ap2}lication  is  made,  and  the  2^t'ecise 
object  of  the  ap2)lication\ 

Dated  this         day  of  ,1878, 

Clerk  of  the  Rules. 

This  summons  was  taken  out  by  Messrs.  A.  and  B.,  of 
No.  ,  Sackville-street,  Dublin,  solicitors,  for 

To 

The  following  note  to  he  added  to  the  original  summons 
where  proceedings  originate  in  Chambers;  and 
when  the  time  is  altered  by  indorsement,  the  in- 
dorsement to  be  referred  to  as  heloio. 

Note. — If  you  do  not  attend,  either  in  person  orbyyour 
solicitor,  at  the  time  and  place  above,  mentioned  [or  at 
the  place  above  mentioned,  and  at  the  time  mentioned  in 
the  indorsement  hereon,]  such  order  will  be  made,  and 
proceedings  taken,  as  the  Judge  may  think  just  and 
expedient. 


[     758     ] 
CourtFees.  SCHEDULE  OF  COURT  FEES. 


Order  of  the  26th  of  December,  1877. 


Rule  I. — The  fees  and  pei-eentages  contained  in  the 
first  Schedule  hereto  are  fixed  and  appointed  to  be  and 
shall  be  taken  in  the  Chancery,  Queen's  Bench,  Common 
Pleas,  and  Exchequer  Divisions  of  the  High  Court  of 
Justice,  and  in  the  Court  of  Appeal,  and  in  any  Court  to 
be  created  by  any  Commissioij,  and  in  any  office  which 
is  connected  with  any  of  those  Divisions  or  in  which 
any  business  connected  with  any  of  those  Divisions  is 
conchicted,  and  bj  any  officer  ]jaid  wholly  or  partly  out 
of  public  moneys  who  is  attached  to  a,ny  of  those  Divisions 
of  the  Supreme  Court,  or  any  Judge  of  those  Divisions  or 
any  of  them,  and  the  said  fees  and  per-centages  shall  be 
taken  by  stamps.  The  fees  and  per-centages  contained 
in  the  second  Schedule  hereto  are  fixed  and  appointed  to 
be  and  shall  be  taken  in  the  Probate  and  Matrimonial 
Division,  and  in  any  office  which  is  connected  with  that 
Division,  or  in  which  any  business  connected  with  it  is 
conducted,  and  by  any  officer  paid  wholly  or  pai-tly  out  of 
public  moneys  who  is  attached  thereto,  or  to  the  Judge 
thereof,  and  the  said  fees  and  }>er-centages  shall  be  taken 
by  stamps. 

Rule  II. — The  fees  and  per-centages  set  forth  in  the 
column  headed  "Lower  Scale"  in  the  Schedule  hereto 
are  to  be  taken  and  paid  in  all  cases  in  which  the  Lower 
Scale  of  fees  defined  by  Rule  VI.  of  this  Order  are  to  be 
taken  and  paid  ;  and  the  fees  and  per-centages  set  forth 
in  the  column  headed  "Higher  Scale"  in  the  Schedule 
hereto  are  to  be  taken  and  paid  in  all  other  cases. 

Rule  III. — In  causes  and  mattei's  by  tlie  36tli  section 
of  the  Supreme  Court  of  Judicature  (Ii-eland)  Act,  1877, 
assigned  to  the  Chancery  Division  : 

The  solicitor  or  party  acting  in  person  shall,  on  any 
pi'oceeding  in  which  he  claims  to  pay  fees  according  to 
the  Lower  Scale,  file  with  tlie  proper  ofiicer  a  cei-tificate 
in  the  form  hereunto  set  forth,  of  which  certificate  the 
officer  is,  at  the  request  of  any  solicitor  or  any  party 
acting  in  person  in  the  cause  or  matter,  to  inark  a  copy 
without  a  fee  : 

On  ])roduction  of  such  copy  of  the  certificate  all  officers 
of  the  Court  are  to  receive  and  file  all  proceedings  in  the 


SCHEDULE   OF   COURT    FEES.  7^9 

cause  or  matter  bearing  stamps  according  to  tlie  Lower  Court Fess. 
8cale : 

lu  any  case  certified  for  the  Lower  Scale  of  Court 
fees,  in  wliicli  it  sliall  happen  tliat  the  solicitor  shall 
become  entitled  to  charge  and  be  allowed  according  to 
the  Higher  Scale  of  solicitors'  fees,  the  deficiency  in  the 
fees  of  Coui't  is  to  be  made  good : 

In  any  case  in  which  the  fees  have  been  paid  upon 
the  Higlier  Scale,  and  in  which  it  shall  ha})pen  that  the 
solicitor  shall  become  entitled  to  charge  and  be  allowed 
only  according  to  the  Lower  Scale  of  solicitors'  fees,  the 
excess  of  fees  so  paid  may  be  allowed  upon  the  taxation 
of  costs,  if  the  circumstances  of  the  case  shall,  in  the 
judgment  of  the  taxmg  officer,  justify  such  allowance. 

Rule  IY. — The  said  fees  and  per-centages  shall  not  be 
payable  in  respect  of  proceedings  before  the  Land  Judges 
of  the  Chancery  Division  in  matters  whieli,  if  said  Act  had 
not  been  passed,  would  have  been  within  the  jurisdiction 
of  the  Landed  Estates  Court,  or  in  matters  within  the 
39th  section  of  said  Act : — 

Rule  Y. —  Notwithstanding  the  provisions  of  this 
Order,  the  following  fees,  per-centages,  or  stamp  duties 
shall  remain  : — 

(a.)  The  existing  fees,  per-centages,  and  stamp  duties 
in  respect  of  any  of  the  jurisdictions  which  are  not  by  the 
Supreme  Court  of  Judicature  (Ireland)  Act,  1877,  trans- 
fi^rred  to  the  High  Court  of  Justice  or  the  Court  of 
Appeal. 

(6.)  The  existing  fees  and  per-centages,  in  respect  of 
any  matter  at  the  time  of  the  j)assiiig  of  the  Supreme 
Court  of  Judicature  (Ireland)  Act,  1877,  within  the 
jurisdiction  of  the  Court  for  Matrimonial  Causes  and 
Matters,  and  in  i*espect  of  proceedmgs  in  the  District 
Registries  of  the  Probate  Division. 

(c.)  The  existing  fees  and  per-centages  in  respect  of 
any  proceedings  in  the  Landed  Estates  Coui-t,  or  under 
the  Record  of  Title  Act  (Ireland),  1865. 

(d.)  The  existing  fees  and  per-centages  in  respect  of 
any  criminal  proceedings. 

(e.)  The  existing  fees  authorized  to  be  takeu  by  any 
SherifiTs  or  officers  of  Sherifis,  or  by  the  criers  of  Judges 
on  Circuit. 

(/.)  The  existing  fees  and  per-centages  which  shall 
become  due  or  payable  before  the  commencement  of  the 
Supreme  Court  of  Judicature  (Ireland)  Act,  1877. 


760  SCHEDULE  OF  COURT  FEES. 

CourtFees.       {g.)  The    existing    fees    payable    in    respect    of    the 
acknowledgment  of  deeds  by  married  women. 

(It.)  The  existing  Stamp  Duties  payable  in  the  office  of 
the  Registrar  of  Judgments  in  Ireland,  pursuant  to  the 
13th  and  14th  Yic,  cap.  74. 

Rule  VI. — The  following  regulations  as  to  fees  and 
per-centages  shall  define  the  Lower  and  the  Higher  Scales 
of  Court  fees,  which  shall  be  taken  and  paid  in  respect 
of  proceedings  in  the  Supreme  Coui-t  of  Judicature 
(Ireland) : — 

1.  There  shall  be  taken  and  paid  the  fees  and  per- 
centages set  forth  in  the  column  headed  "Lower  Scale,"  in 
the  first  Schedule  hereto  : — 

(«.)  In  all  actions  for  purposes  to  which  any  of  the 
forms  of  indorsement  of  claim  on  writs  of  summons  in 
Part  II.,  Sections  II.,  lY.,  and  V.  of  Appendix  A, 
referred  to  in  the  Orders  of  the  Supreme  Court  of  Judi- 
cature, Ireland,  of  the  18th  of  December,  1877,  or  other 
similar  forms,  are  applicable  (except  as  after  pio^ided  in 
actions  for  injunctions)  : — 

(6.)  In  all  causes  and  matters  by  the  3Gth  section 
of  the  Supreme  Court  of  Judicature  Act  (Ireland),  1877^ 
assigned  to  the  Queen's  Bench  Division  of  the  Court : — 

(c.)  In  all  causes  and  mattei-s  by  the  36th  section  of 
the  said  Act  assigned  to  the  Common  Pleas  Division  of 
the  Court : 

(d.)  In  all  causes  and  matters  by  the  3Gth  section  of 
the  said  Act  assigned  to  the  Exchequer  Division  of  the 
Court. 

And  also  in  causes  and  matters  by  the  3Gth  section  of 
the  said  Act  assigned  to  the  Chancery  Division  of  the 
Court  in  the  following  cases  (that  is  to  say)  : — 

(a.)  By  creditors'  legatees  (whether  specific,  pecuniary, 
or  residuary),  devisees  (whether  in  trust  or  otherwise) 
heirgat-law  or  next  of  kin,  in  which  the  personal  or  real 
or  per:  onal  and  real  estate  for  or  against  or  in  respect  of 
which,  or  for  an  account  or  administration  of  which  the 
demand  may  be  made,  shall  be  under  the  amount  or  value 
of  £700. 

{h.)  For  the  execution  of  trusts  or  api)ointnu"nt  of  new 
trustees  in  which  the  trust  estate  or  funds  shall  be  under 
the  amount  or  value  of  £700. 

(c.)  For  dissolution  of  i)artnership  or  the  taking  of 
partnership  or  any  other  accounts  in  which  the  partner- 


SCHEDULE  OF  COURT  FEES.  7G1 

ship  assets  or  the  estate  or  fund  shall  be  under  the  amount  Court  Fees, 
or  value  of  J700. 

{d.)  For  foreclosure  or  redemption,  or  for  enforcing  any 
charge  or  lien  in  which  the  mortgage  whereon  the  suit 
suit  is  founded,  or  the  charge  or  lien  sought  to  be  enforced, 
shall  be  under  the  amount  or  value  of  £700. 

(e.)  And  for  specific  performance,  in  which  the  purchase 
money  or  consideration  shall  be  under  the  amoimt  or 
value  of  £700. 

{/.)  In  all  proceedings  under  the  Trustees'  Relief  Acts, 
or  under  the  Trustees  Act,  or  under  any  such  Acts,  in 
which  the  trust  estate  or  fund  to  which  the  proceeding 
relates  shall  be  under  the  amount  or  value  of  £700. 

(g).  In  all  proceedings  relating  to  the  guai-dianship  or 
maintenance  of  infants  in  which  the  property  of  the  infant 
shall  be  under  the  amount  or  value  of  £700. 

(h.)  In  all  proceedings  by  oiiginal  special  case,  and  in 
all  proceedings  relating  to  funds  carried  to  separate  accounts, 
and  in  all  proceedings  under  any  railway  or  private  Act  of 
Parliament,  or  under  any  other  statvitory  or  summary 
jurisdiction,  and  generally  in  all  other  cases  where  tlie 
estate  or  fund  to  be  dealt  with  shall  be  under  the  amount 
or  value  of  £700. 

2.  In  all  actions  for  special  injunctions  to  restrain  the 
commission  or  continuance  of  waste,  nuisances,  breaches 
of  covenant,  inju.ries  to  pi'operty,  and  infringement  of 
rights,  easements,  patents  and  copyrights,  and  other  similar 
cases  where  the  procuring  such  injunction  is  the  principal 
relief  sought  to  be  obtained,  and  in  all  cases  other  than 
those  to  which  the  fees  in  the  column  headed  "  Lower 
Scale  "  are  hereby  made  applicable,  there  shall  be  taken 
and  paid  the  fees  and  per-centages  set  forth  in  the  column 
headed  "  Higher  Scale"  in  the  Schedules  hereto. 

3.  As  to  any  fees  set  forth  in  the  first  Schedule  hereto 
and  to  which  the  "Lower  Scale"  and  the  "  Higher  Scale" 
as  defined  by  this  Order  do  not  apply,  they  shall  be  taken 
and  paid  for  and  in  respect  of  the  matters  expressed  in 
said  Schedule. 

Rule  YII. — The  existing  rides  and  practice,  applicable 
to  proceedings  by  persons  suing  in  forma  pauperis  shall 
continue  and  be  applicable  to  proceedings  to  which  this 
Order  relates. 

Rule  VIII. — Save  as  otherwise  provided  h^  this  Order, 
all  existing  fees,  per-centages,  and  stamp  duties  which  may 


7»)2  SCHEDULE   OF   COURT    FEES. 

Court  Fees,  be  taken  in  any  of  tlie  Courts  whose  jurisdiction  is  by  tlie 
Supreme  Court  of  Judicature  (Ireland)  Act,  1877,  trans- 
ferred to  the  High  Court  of  Justice  or  Court  of  Appeal, 
or  in  any  office  which  is  connected  with  any  of  those  Courts, 
or  in  which  any  business  connected  with  those  Courts  is 
conducted,  or  by  any  officer  paid  wholly  or  partly  out  of 
public  moneys  who  is  attached  to  any  of  those  Coui'ts,  or 
the  Supreme  Court,  or  any  Judge  of  those  Courts,  or  any 
of  them,  shall  be  and  are  hereby  abolished. 

Rule  IX. — A  folio  is  to  comprise  seventy-two  words, 
every  figure  comprised  in  a  column  being  counted  as  one 
word. 

Rule  X. — The  provisions  of  the  thiixi  section  of  the 
Supreme  Coui-t  of  Judicature  (Ireland),  Act,  1877,  and  of 
the  Orders  made  under  the  provisions  of  that  Act  shall 
apply  to  this  Order. 

Rule  XL — This  Order  shall  come  into  operation  at 
the  time  of  the  commencement  of  the  Supi-eme  Court  of 
Judicature  (Ireland)  Act,  1877. 


Form  of  Certificate  for  paying  Lower  Scale  of  Court  Fees  above 
referred  to — ■ 

(Title  of  Cause  or  Matter.) 

I  Iiereby  certify  that  to  the  best  of    my  judgment  and  belief  the 
Lower  Scale  of  Fees  of  Court  is  applicable  to  this  case. 

Dated,  &c. 

A.  B., 
Solicitor  for  Plaiutiff  or  Defendant. 


[     703    ] 


The  First  Schedule  above  refeered  to. 

[An  Order  or  Rule  herein  referred  to  by  number  shall 
mean  the  Order  or  Rule  so  numbered  in  the  Rules  of 
the  "Supreme  Court  of  Judicature  (Ireland),  of  the 
18th  of  December,  1877."] 


Court  Fees. 


Lower 
Scale. 


Higlier 
Scale. 


Summonses  and  Writs. 

On  sealing  a  writ  of  summons  for 
commencement  of  an  action, 

On  sealing  a  notice  for  service  under 
Order  XV.,  Rule  18,  . 

On  sealing  a  writ  of  mandamus  or 
injunction,  .... 

On  sealing  a  -svi-it  of  subpoena  for  any 
niunber  of  persons. 

On  sealing  every  other  writ,  except 
writs  for  the  election  of  members 
of  Parliament,  or  writs  to  super- 
sede Justices  of  the  Peace, . 

On  sealing  a  summons  to  originate 
proceedings  in  the  Chancery  Divi- 
sion, ...... 

On  sealing  a  summons  issuing  out 
of  the  Exchequer  Division  lor  re- 
covery of  legacy  duty. 

On  sealing  or  issuing  any  other 
summons,  ..... 

Appearances. 
On  entering  an  appearance  for  any 
number  of  persons  included  in  the 
same  memorandum,    . 

Copies. 
For  examining  a  written  or  printed 

copy  and  marking  same  as  an  office 

copy,  for  each  folio,    . 
For  making  a  copy  and  marking  same 

as  an  otiice  copy,  for  each  folio,  . 
For  a  copy  in  a  foreign  language,  the 

actual  cost. 
For  a  copy  of  a  plan,  map,  section, 

drawing,  photograph,  or  diagram, 

the  actual  cost. 


£  s.  d. 

0  2  0 

0  1  0 

0  2  0 

0  2  0 


£  s.  d. 

0  4  0 

0  1  0 

0  5  0 

0  4  0 


0     2     0     0     4     0 


0     2     010     4     0 


0  2  0 

0  0  G 

0  1  6 

0  0  1 

0  0  4 


0  2  0 

0  1  0 

0  1  6 

0  0  1 

0  0  4 


764 

Court  Fees. 


SCHEDULE  OF   COURT   FEES. 
First  Schedule — continued. 


Attendances. 

On  an  application,  with  or  without  a 
siibpcena,  for  any  officer  to  attend 
as  a  witness,  or  to  produce  any 
record  or  document  to  be  given 
in  evidence  (in  addition  to  the 
reasonable  expenses  of  the  officer), 
for  each  day,  or  part  of  a  day,  he 
shall  necessarily  be  absent  from 
Dublin,      ..... 

The  officer  may  require  a  deposit 
of  stamps  on  account  of  any  further 
fees,  and  a  deposit  of  money  on 
account  of  any  further  expenses 
which  may  probably  become  payable 
beyond  the  amount  paid  for  fees  and 
expenses  on  the  apj^lication,  and  the 
officer  or  his  clerk  taking  such  deposit 
shall  thereupon  make  a  memorandum 
thereof  on  the  application. 

The  officer  may  also  require  an 
undertaking  in  writing  to  pay  any 
further  fees  and  exjienses  which  may 
become  payable  beyond  the  amounts 
so  paid  and  deposited. 


Filing. 

On  filing  any  pleading,  except  on 
summons  or  petition,  . 

On  filing  a  special  case,  . 

On  filing  an  affidavit  with  exhibits 
(if  any)  annexed,  submission  to 
arbitration,  award,  bill  of  sale, 
warrant  of  attorney,  cognovit, 
bail,  satisfaction  piece,  and  writ 
of  execution  with  return,     . 

On  filing  a  scheme  pursuant  to  the 
statute  30  &  31  Vic,  c.  127,  or 
the  Liquidation  Act,  1868, 

On  tiling  a  caveat. 


Lower 

Scale. 


Higher 

Scale. 


£    s.    d. 


£    s.     d. 


0  10     0 


0     1     0 
0     5     0 


0     1     G 


0  15     0 
0     4    0 


0  10     0 


0     1     0 
0     5     0 


0     1     6 


0  15     0 
0     4     0 


SCHEDULE   OF   COURT   FEES. 
First  Schedule — continued. 


765 
Court  Fees. 


Lower 
Scale. 


On  filing  and  enrolling  recognizance, 
save  recognizances  for  security  for 
costs  and  giving  certificate  thereof, 

On  any  vacate  of  recognizance,  enter- 
ing on  rolls,  and  giving  certificate, 

Certificates. 

For  certificate  of  pleading  and  pro- 
ceedings,   ..... 

For  a  certificate  or  report  of  any 
Master  or  Chief  Clerk  not  the 
result  of  taking  an  account, 

Searches  and  Inspections. 

On  an  application  to  search  an  index 
and  inspect  a  pleading,  decree, 
order,  or  other  record,  upwards 
of  three  years  old,  unless  other- 
wise expressly  provided  for  by 
any  Act  of  Parliament  or  this 
order,  and  to  inspect  documents 
deposited  for  safe  custody  or  pro- 
duction ])ursuant  to  an  order,  for 
each  hour  or  part  of  an  hour 
occupied,    ..... 

Not  exceeding  on  one  day. 

Examination  of  Witnesses. 

For  every  witness  sworn  and  ex- 
amined by  an  Examiner  or  Chief 
Clerk  in  his  ofiice,  for  each  hour. 

For  an  examination  of  witnesses  by 
any  such  ofiicer  away  from  the 
office,  in  addition  to  such  sum  as 
shall  be  expressed  in  the  order  as 
reasonable  for  travelling  and  other 
expenses,    .  .         .  .  • 

The  officer  may  require  a  deposit 

of  stamps  on  account  of  fees,  and  a 


£    s.   d. 

0  10     0 
0     5     0 


Higher 
Scale. 


£    s.  d. 

0  15     0 

0  10     0 


0     10    0     2     0 


0     3     0 


0     5     0 


0     5     0 


1     0     0 


0     2     0 

0     7     6 


0     5     0 


10     0 


766 

Court  Fees. 


SCHEDULE   OF   COURT   FEES. 
First  Schedule — continued. 


deposit  of  money  on  account  of  ex- 
penses which  may  probably  become 
payable  beyond  any  amount  paid  for 
fees  and  expenses  upon  the  exami- 
nation, and  the  officer  or  his  clerk 
taking  such  deposit  shall  thereupon 
make  a  memorandum  thereof,  and 
deliver  the  same  to  the  party  making 
the  deposit. 

The  officer  may  also  require  an 
undertaking  in  writing  to  pay  any 
further  fees  and  expenses  which  may 
become  payable  beyond  the  amount 
so  paid  and  deposited.  These  fees 
are  not  to  apply  to  the  examination 
of  witnesses  for  the  purpose  of  any 
inquiiy,  taxation  of  costs,  or  other 
proceeding  before  the  officer. 

Hearing. 

For  entering  or  setting  down  or  I'e- 
entering  or  resetting  down  an  ap- 
peal to  the  Court  of  Appeal,  or  a 
cause  for  trial  or  hearing  in  any 
court  in  Dublin  or  at  any  assizes, 
except  a  demurrer  or  special  case, 
or  a  summons  adjourned  from 
chambers,  or  on  a  motion  for  judg- 
ment, after  a  trial  before  a  Judge 
andjiiry, 

Judgments,  Decrees,  and  Orders. 

For  drawing  up  and  entering  a  judg- 
ment or  a  decree  or  decretal  order, 
whether  on  the  original  hearing 
of  a  cause  or  on  further  consider- 
ation, including  a  cause  commen- 
ced by  summons  at  chambers  and 
an  order  on  the  hearing  of  a  special 
case  or  petition,  and  any  order  by 
the  Court  of  Appeal,  . 


Lower 

Scale. 


X    S.     d. 


0    10      0 


0       5       0 


Higher 
Scale. 


<£     S.     d. 


0    10      0 


0    10      0 


SCHEDULE   OF  COURT   FEES. 
First  Schedule — continued. 


767 

Court  Fees. 


Lower 

Scale. 


Higher 

Scale. 


For  drawing  up  and  entering  any 
other  order  whether  made  in  court 
or  at  chambers,  .... 

For  copy  of  a  plan,  map,  section, 
drawing,  photograph,  or  diagram, 
required  to  accompany  any  order, 
the  actual  cost. 

Accounts. 
For  taking  and  certifying  the  result 
of  an  account  of  a  receiver,  guar- 
dian, consignee,  bailee,  manager, 
provisional,  official,  or  voluntary 
liquidator  or  sequestrator,  or  of 
an  executor,  administrator,  trus- 
tee, agent,  solicitor,  mortgagee, 
co-tenant,  co-pai-tner,  execution 
creditor,  or  other  person  liable 
to  account,  when  the  amount 
found  to  have  been  received  with- 
out deducting  any  payment  shall 
not  exceed  £200, 
Where  such  amount  shall  exceed 
£200,  for  everv  £100,  or  fraction 
of  £100,  .  '  . 
But  not  to  exceed  £2. 

The  above  fee  to  cover  the  certi- 
ficate of  taking  such  acco\int. 

Petitions. 
For  every  summary  petition,  . 

Advertisements. 
For  signing  an  advertisement. 

Services  of  Summonses,  Notices,  &c. 

Upon  every  notice  or  summons 
lodged  for  service  in  the  notice 
department  of  the  Chancery  Divi- 
sion, ...... 

Upon  each  copy  of  such  notice  or 
summons  transmitted  throuffh  the 


0     2     0 


0     1     0 


0     0     6 


£    s.  d. 


0     5     0 


0     5     0 


0     5     0 


0     1     0 


0     1     0 


0     0     6 


0  10     0 


0  10     0 


0     1     0 


7(i8 

Court  Fees. 


SCHEDULE    OF   COURT    FEES. 
First  Schedule — continued. 


Lower 

Scale. 

Higher 
Scale. 

said  notice  department,  wliere  the 

£ 

s.    d. 

£ 

s. 

d. 

number  of  copies  shall  not  exceed 

three,  for  each  copy,    . 

0 

0 

6 

0 

0 

(3 

For  three  copies  or  upwards,  . 

0 

1 

6 

0 

1 

G 

Payments  of  Cash  and  Transfer 

OF  Stock. 

Upon     the     Accountant -General's 

drafts,  exceeding  £100,  on  every 

£100  or  fractional  part  of  £100, 

0 

0 

6 

0 

0 

6 

But  not  to  exceed  £5. 

For  every  Accoiintant-General's  cer- 

tificate of  cash  or  stock, 

0 

0 

4 

0 

0 

4 

Taxation  of  Costs. 

For  taxing  a  bill  of  costs,  and  certi- 

fying the  amount  thereof,  where 

the  amount  allowed  does  not  ex- 

ceed £20, 

0 

1 

6 

0 

1 

6 

Where  the  amount  exceeds  £10,  for 

every  £.5   allowed,  or  a  fraction 

thereof,       ..... 

0 

0 

4 

0 

0 

4 

Enrolments. 

£ 

s. 

d. 

On  examining  and  signing  enrolments  of  de- 

crees or  oi'ders — 

If  under  the  lower  scale, 

0 

10 

0 

If  under  the  higher  scale, 

1 

0 

0 

For  enrolment  of  patent  of  a  duke,  marquess, 

earl,  viscount,  or  baron,     .... 

20 

0 

0 

For  enrolment  of  a  patent  of  a  lord  chancellor, 

chief  justice,  or  chief  baron, 

10 

0 

0 

For  enrolment  of  a  patent  of  a  baronet,  judge, 

attorney-general,    solicitor-general,    or   ser- 

geant-at-law,      ...... 

5 

0 

0 

For  enrolment  of  every  other  patent,  for  each 

roll  of  ten  folios,         ..... 

1 

10 

0 

For  surrender  of  patent,         .... 

1 

10 

0 

For  enrolling  any  other  deed  or  document,  for 

each  roll  of  ten  folios  or  fractional  pai't  of 

ten  folios,          ...... 

0 

10 

0 

SCHEDULE  OF  COURT  PEES. 
First  Schedule — continued. 


769 

CourtFees. 


Warrants. 

£ 

s. 

d. 

Upon  every  warrant  of  the  Lord  Chancellor 

for  election  of  a  coroner,    .... 

0 

12 

6 

The  Crown  and  Hanaper  Office. 

For  every  commission  of  the  peace, 

6 

0 

0 

For  every  commission  of  inquiry',  not  being  in 

lunacy,  aud  commission  for  taking  affidavits 

for  the  High  Court, 

1 

0 

0 

For  every  copy  of  any  order, 

0 

2 

0 

For  office  copies  of  records  or  any  other  docu- 

ment, per  folio, 

0 

0 

4 

For  every  certificate,     ..... 

0 

2 

6 

For  filing  every  writ,  pleading,  or  other  docu- 

ment,       ....... 

0 

3 

0 

For  sealing  every  exemplification  of  orders,    . 

1 

12 

0 

On  every  requisition  to  administer  the  oaths 

of  office  to  all  persons  who  shall  be  SAVorn 

before  the  Lord  Chancellor, 

0 

10 

0 

For  every  patent  of  a  duke,  .... 

20 

0 

0 

For  every  patent  of  a  marquess  or  earl, 

15 

0 

0 

For  every  patent  of  a  -ydscount, 

10 

0 

0 

For  every  patent  of  a  baron. 

8 

0 

0 

For  every  patent  granting  fairs  and  markets. 

3 

0 

0 

For  every  patent  of  a  lord  chancellor  or  judge. 

lieutenant   of  a  county  or   city,  or  custos 

rotulorum,         ...... 

5 

0 

0 

For  every  patent  of  attorney-general,  solicitor- 

general,  sei'geant-at-law,  or  other  officer. 

5 

0 

0 

For  every  patent  of  a  pension, 

3 

0 

0 

For  every  patent  of  office  not  before  enumerated, 

3 

0 

0 

For  every  patent  of  an  annuity,  per  skin  of 

15  folios,  ....... 

1 

10 

0 

For  every  patent  granting  lands,  ditto,  . 

1 

10 

0 

For  every  patent  granting  pardon  (not  in.  forma 

patiperis),  ditto, 

1 

0 

0 

For  every  patent  gTanting  charter  for  cities 

arid  towns  corporate,  and  denization  of  a 

private  person,  ditto,          .... 

1 

10 

0 

For  every  patent  not  before  enumerated,  ditto, 

1 

10 

0 

For  search  for  any  record  or  document,  and  if 

found,  for  a  copy  or  extract  not  exceeding  5 

folios,        ....... 

0 

3 

0 

For  copy,  each  additional  folio,      .         . 

0 

0 

4 

2l 


770 

Court  Fees. 


SCHEDULE   OF   COURT    FEES. 
First  Schedule — continued. 


Miscellaneous. 

For  every  certificate  directed  or  required  by 
the  Act  of  11  and  12  Vic,  cap.  120,  in- 
cluding a  duplicate  thereof,         .  .  . 

For  signing  and  certifying  documents  for 
proof,  pursuant  to  the  Act  of  the  14  and  15 
Vic,  cap.  99,  for  every  folio, 

For  every  registration  of  a  solicitor's  licence, 
pursuant  to  the  provisions  of  the  56  Geo. 
III.,  cap.  5C,  s.  67,    .         .         .         .         . 

For  every  registration  of  indenture  of  ajjpren- 
ticeship,  piu'suant  to  the  provisions  of  the 
29  and  30  Vic,  c.  84,  ss.  12  and  16,  . 

For  filing  and  entering  a  bill  of  sale  or  copy 
thereof  in  the  oifice  of  the  Master  of  the 
Queen's  Bench  division,  pursuant  to  the  pro- 
visions of  the  17  and  18  Vic,  cap.  55, 

For  liberty  to  search  alphabetical  index  for 
bill  of  sale,  under  the  same  statute,  for  any 
search  against  one  person, 

For  liberty  to  make  a  similar  search  under  the 
same  statute  in  the  numerical  index. 

For  filuag  and  entering  warrant  to  confess 
judgment,  pursuant  to  the  provisions  of  the 
3  and  4  Vic,  cap.  105,       .... 

For  filing  civil  ]»ill  for  recovery  of  poor  rates, 
pursuant  to  the  provisions  of  the  12  and  13 
Vic,  cap.  104, 

On  each  memorial  of  assignment  of  judgment 
pursuant  to  the  provisions  of  the  1 3  and  1 4 
Vic,  cap.  114,  . 

For  certificate  of  a  jvidgment  for  registi'ation 
in  England  or  Scotland  under  the  Judgment 
Extension  Act,  1 868,  including  afiidavit,    . 

On  filing  for  registration  a  certificate  issued 
out  of  the  Courts  of  Westminster  or  Court 
of  Session  in  Scotland  under  the  same  Act, 
although  more  than  one  name  may  have  to 
be  registered  under  the  same  Act, 

On  eveiy  certificate  of  the  entry  of  a  satis- 
faction under  the  same  Act, 

For  a  search  made  in  one  or  both  of  the  regis- 
ters of  English  and  Scotch  jiidgiucnts,  for 
each  name,        ,,..., 


t    771    ] 

The  Second  Schedule  above  referred  to.     OonrtFeea. 


Part  I. 


0     4     0 
0     4     0 


Citations  and  Writs.  £    s.    d. 

On  sealixig  a  citation,    .         .         .         .         .040 

On  sealing  a  subpoena  for  any  number  of  per- 
sons,        ....... 

On  sealing  any  other  writ,     .... 

Appearance. 

On  entering  or  withdrawing  appearance,         .016 
On  amending  an  appearance,  .         .         .016 

Search  for  appearance,  .         .         .         .         .010 

Filing. 

On  filing  affidavit  as  to  scripts,      ...  0 

On  filiag  every  script  annexed  to  such  affidavit,  0 
Not  to  exceed,  for  any  number  of  scripts,  £2. 

On  filing  any  pleading,           ....  0 

On  filing  petition,          .....  0 

On  filing  answer,  .  .  .  .  *  j  ^ 
On  filing  reply,  or  any  further  writing  to  the 

petition,   .         .         .         .         .         •         .  '  0 

On  filing  inventory,  .  .  .  .  •  ,  0 
On  filing  case  for  motion,  .  .  .  .0 
On  filing  certificate  of  Chairman  of  Quarter 

Sessions,  .         .         .         .         •         •         •  1  ^ 

On  filing  special  case,  .  .  .  .  •  I  0 
On   filing  every  affidavit  or  other  document 

brought  into  Court   and  deposited  in   the 

Registry  not  otherwise  specified,         .         .016 


Evidence. 

On  filing  intei*rogatories  (for  each  set),  . 
On  filing  deposition  of  each  witness, 

Hearing. 

For  entering  or  setting  down,  or  re-enteiing 
or  resetting  down,  a  cause  for  trial  in  any 
Covirt,  except  a  demurrer  or  special  case,  or 
(after  a  trial  by  jury)  a  motion  for  judgment, 


0 
0 

0 
0 
0 

0 
0 
0 

6 

0 


0     1     0 
0     1     0 


0  10     0 


772 

Court  Fees. 


SCHEDULE   OF   COURT   FEES. 
Second  Schedule — continued. 


Witnesses. 

On  an  examination  of  witnesses  pursuant  to 
the  31st  section  of  the  Probate  Act,  1857, 
to  be  paid  by  the  party  having  carriage  of 
the  order,  ...... 

Judgments,  Decrees,  and  Orders. 

For  drawing  up  and  entering  a  judgment  or  a 
decree  or  decretal  order,  whether  on  the 
original  hearing  of  a  cause,  and  an  order  on 
the  hearing  of  a  special  case  or  petition,     . 

For  drawing  u])  and  entering  any  other  order 
whether  made  in  Court  or  at  chambers, 

For  copy  of  a  plan,  map,  section,  drawing, 
photograph,  or  diagram  required  to  accom- 
pany any  order,  the  actual  cost. 

Bonds  and  Recognizances. 

Bonds  or  recognizances  given  by  receiver  or 

any  other  person  for  any  purpose, 
On  assignment  of  bond,         .... 

Taking  Evidence. 

On  eveiy  commission  issuing  under  seal  of  the 
Court,       ....... 

Engrossing  and  collating  such  commission,  per 
folio,         ....... 

Reference  to  Registrar. 

On  each  reference  : — 

For  the  registrar's  attendance,  . 

For  every  hour  or  part  of  an  hour  after  the 

first  hour,  a  further  fee  of,     . 
For  the  registrar's  report,  if  five  folios  or 

under,  ...... 

If  exceeding  five  folios,  for  every  additional 

folio,     ....... 

MM,     III     IJ.I   , 

;  u.  ,.)^K-. Summons. 
'^Bummohs  to  attend' at  chambers,  . 


SCHEDULE   OF   COURT   FEES. 
Second  Schedule — continued. 


Notices. 
Filing  every  notice,       ..... 

Attendances. 

On  an  application,  with  or  without  a  subpoena, 
for  any  officer  to  attend  as  a  witness,  or  to 
produce  any  record  or  document  to  be  given 
in  evidence  (in  addition  to  tlie  reasonable 
expenses  of  the  officer),  for  each  day,  or  part 
of  a  day,  he  shall  necessarily  be  absent  from 
Dublin,    .         .         . 

The  officer  may  require  a  deposit  of  stamps 
on  account  of  any  further  fees,  and  a  deposit 
of  money  on  account  of  any  further  expenses 
which  may  probably  become  payaljle  beyond 
the  amount  paid  for  fees  and  expenses  on  the 
application,  and  the  officer  or  his  clerk  taking 
such  deposit  shall  thereiipon  make  a  memo- 
randum thereof  on  the  ajiplication. 

The  officer  may  also  require  an  undertaking 
in  writing  to  pay  any  further  fees  and  expenses 
which  may  become  payable  beyond  the  amounts 
so  paid  and  deposited. 

Copies. 

For  examining  a  written  or  printed  copy  and 
marking  same  as  an  office  copy,  for  each 
folio,        ....... 

For  making  a  copy  and  marking  same  as  an 
office  copy,  for  each  folio,  .... 

For  a  copy  in  a  foreign  language,  the  actual 
cost. 

For  a  copy  of  a  plan,  map,  section,  drawing, 
photograph,  or  diagram,  the  actual  cost. 

Payments  of  Cash  and  Transfer  of  Stock. 

Upon  the  Accountant-General's  drafts,  ex- 
ceeding £100,  on  every  £100  or  fractional 

part  of  £100, 

But  not  to  exceed  £5. 

For  every  Accountant-General's  certificate  of 
cash  or  stock,    ...... 


773 

Court  Fees. 


£    s.     d. 
0     1     0 


0   10     0 


0     0     1 
0     0     4 


0     0     6 


0     0     4 


774 

Court  Fees. 


SCHEDULE  OF  COURT  PEES. 
Second  Schedule — continued. 


Advertisements. 
For   settling   and   signing  an  advertisement 
dii-ected  by  the  Court,        .... 

Receipts. 
For  every  recei]>t  for  a  document  or  documents 
delivered  out  of  the  Principal  Registry, 

Miscellaneous. 

For  every  certificate  dii-ected  or  required  by 
the  Act  of  11  &  12  Vic,  cap.  120,  including 
a  duplicate  thereof,    ..... 

For  signing  and  certifying  documents  for 
l)roof,  pursuant  to  the  Act  of  the  14  &  15 
Vic,  cap.  99,  for  every  folio, 

Taxation  of  Costs. 

For-  taxing  a  bill  of  costs,  and  certifying  the 
amount  thereof,  where  the  amount  allowed 
does  not  exceed  £20, 

Where  the  amount  exceeds  XI 0,  for  every  £5 
allowed,  or  a  fraction  thereof,     . 


£    s.    d. 
0  10     0 

0     1     0 

0     1     0 
0     0     2 


0     1     6 
0     0     4 


Part  II. 

Fees  and  per-centages  to  be  taken  in  Registry  of  the 
Probate  and  Matrimonial  Division  in  non-contentious 
business. 

The  same  as  heretofore,  except  that  in  lieu  of  the  fees 
heretofore  taken  for  attendances,  and  for  taxing  costs, 
respectively,  shall  be  taken  the  fees  mentioned  in  the 
first  part  of  this  Schedule,  provided  that  the  probate 
or  administration  duty  charged  in  any  bill  of  costs 
shall,  for  })urposes  of  taxation,  not  be  considered  as 
included  in  such  bill  in  calculating  the  amount  of  fees 
for  taxation. 


INDEX, 


INDEX. 


ABATEMENT, 

of  action  none,  by  death,  bankruptcy,  or  marriage  if  cause  of  action 

sifrvive,  654. 
pleas  in,  abolished,  553. 
none  by  misjoinder  of  parties,  534. 

ABOLITION, 

of  office,  on  future  vacancies,  4S0. 

of  terms,  97,  454. 

bills  of  exceptions,  396. 

general  issue,  388. 

exception  as  to  not  guilty,  554. 

of  new  assignments,  553. 

ACCEPTANCE 

of  sum  paid  into  Court  in  satisfaction,  592. 
form  of,  701. 

see  Payment  into  Court. 

ACCIDENT, 

rules  of  equity  to  prevail,  325. 

ACCOUNTANT-GENERAL, 

consolidation  of  offices,  68,  478. 

ACCOUNT, 

actions  for,  168. 

application  for,  where  writ  indorsed  for  account,  53. 

in  default  of  appearance,  533. 

audit  of  public,  by  Local  Government  Board,  112,  4S5. 

assigned  to  Chancery  Division,  38,  169. 

attachment  for  disobedience  of  order  for,  61 1. 

further  consideration  on,  or  trial,  636. 

indorsement  in  actions  for,  507. 

land  judges  bound  to  take,  147. 

ordered  at  any  stage  of  the  proceedings,  613. 

order  for  in  default  of  appearance,  366,  533. 

prolonged  examination  of,  referred  to  arbitrator,  619 

principal  and  agent,  168. 

stated,  form  of  claim,  706, 

2  M 


778  INDEX. 

ACKNOWLEDGMENT 

of  deeds  for  enrolment  and  registry,  79. 

ACTIO  PERSONALIS  MORITUR  CUM  PERSONA, 
rules  of  equity  follow  the  law,  326. 

ACTION, 

appearance  to,  362. 

assigned  to  wrong  division,  176,  460. 

assignment  of  choses  in,  258. 

binding  parties  in  future,  205. 

by  and  against  absent  parties,  534,  541. 

by  and  against  infants  and  married  women,   538. 

by  and  against  lunatics,  549. 

by  and  against  principal  and  agent,  208. 

by  and  against  trustees  and  executors,  &c.,  537. 

commenced  by  writ  of  summons,  176,  355,  501. 

commenced  in  name  of  wrong  plaintiff,  535. 

common  law  not  assigned  to  any  division,  40,  174. 

consolidation  of,  30,  195,  661. 

default  of  pleading  in, 

discontinuance  of,  389. 

dismissal  for  want  of  prosecution,  393. 

distinguished  by  date,  letter,  and  number,  356,  509. 

form  and  commencement  of,  355,  501. 

interpleader,  426. 

joinder  of  causes,  30,  225,  535,  546. 

limitation  to  one  or  more  claims, 

meaning  of  the  word,  353,  433,  66;^. 

no  abatement  by  change  of  parties,  654. 

no  abatement  by  misjoinder  of  parties,  534. 

notice  to  officer  on  assignment  to  division,  176. 

on  bill  of  exchange,  346,  503. 

other  proceedings  than,  354,  501. 

parties  to,  367. 

partnership,  rules  of  equity  to  prevail,  334. 

pending,  343. 

pleadings  in,  375. 

forms  of,  706. 

setting  down  on  motion  for  judgment,  376. 

stay  of,  where  formerly  injunction,  219,  450. 

transfer  of,  176,  427,  460,  470,  660. 

trial  of,  391,  b20. 

ACTION  FOR  ACCOUNT, 
see  account. 

ACTION  FOR  DEBT, 

special  indorsement  of  claim,  506, 
indorsement  of  debt  and  costs,  507. 
default  of  pleading,  583. 

ACTION  CONCERNING  LAND, 
appearance  in,  365,  524- 
defendant  may  limit  his  defence,  524. 

in  possession,  need  not  plead  his  title,  524- 
foreclosure  is  not,  548. 
joinder  of  causes  in,  when  allowed,  547,  548. 


INDEX.  77J^ 

ACTION  CONCERNING  -LM<iD—coniinutd. 
landlord  appearing  in,  365,  522. 
judgment,  how  enforced,  638. 

in  default  of  appearance,  527. 

in  default  of  pleading,   585. 
person  in  possession  let  in  to  defend,  365. 
service  by  writ  of  summons,  361,  514. 
for  possession,  by  mortgagors  in  their  own  name,  253,  452. 
service  of  writ  out  of  jurisdiction  in,  518. 
no  appearance  after  time  limited,  228. 
writ  of  possession,  654. 

ACTS  OF  PARLIAMENT, 

see  Statutes,  &c.,  475. 

ADDRESS  FOR  SERVICE, 
indorsement  of, 
on  writ  of  summons,  508. 
On  memorandum  of  appearance,  365. 

ADJOURNMENT 
of  trial,  624. 

ADMINISTRATION, 

actions  assigned  to  Chancery  Division,  38,  166. 

by  and  against  administrators  or  executors,  537. 

title  of,  505. 
creditor's  action,  numerous  parties,  374. 
form  of,  707,  708. 

of  oaths,  commissioners  for  the,  78,  483. 
of  assets  or  insolvent  estates,  228,  51,  451. 
of  assets  legal  and  equitable,  327. 
of  after  acquired  property,  327. 
title  of  cause  on  writ  in  action  for,  356. 
concurrent,  of  law  and  equity,  449. 

ADMINISTRATOR, 

actions  by  and  against,  537. 

joinder  of  claim  by  or  against,  with  other  claim,  548. 

ADMIRALTY, 

appellate  jurisdiction  in,  transferred  to  Court  of  Appeal,  159. 
jurisdiction  to  be  transferred  to  the  High  Court  on  death  of  existing 

judge,  82. 
rules  of  Court,  in  collision,  to  prevail  over  those  of  common  law,  51, 

303.  454. 
existmg  judge  of,  153,  438. 

no  successor  to  be  appointed  to  existing  judge,  82,  153. 
court  of,  to  be  annexed  to  Probate  Division,  153,  457. 

ADMISSIONS, 

notice  to  admit  documents,  390,  612. 
evidence  of  admission  of  documents,  613. 
notice  of  admission  of  facts,  612. 
pleading,  385. 

'  application  for  relief  on,  in  pleadings,  636. 
form  of  admission,  704. 

3  M  2 


780  INDEX. 

AFFIDAVIT, 

at  trial,  without  consent,  399. 

by  consent,  627. 
evidence  by,  60,  397,  629. 
as  to  particular  facts,  396,  627. 
and  answers,  now  taken  within  Queen's  dominions,  79. 

in  foreign  parts,  79. 
may  be  partly  in  print,  673. 
not  by,  if  cross-examination  is  desired,  627. 
for  substituted  service,  515. 
for  service  out  of  jurisdiction,  520. 
of  service  in  default  of  appearance,  526, 
of  particulars,  when  liquidated  claim  not  indorsed,  526. 
"  to  show  cause  "  when  writ  specially  indorsed,  530. 
of  sum  due  before  judgment  by  default,  584.  %^^^li^ 
on  application  for  discovery  and  inspection,  607. 
confined  to  facts  known,  not  hearsay  or  belief,  628. 
plaintiffs  and  defendants,  when  filed,  629. 
notice  to  cross-examine  deponent,  630. 
printing,  631. 

not  necessary  to  prefix  interrogatories,  63 1 
as  to  documents  form  of,  702. 

AFFIRMATION, 

oath  included,  434. 

AGENT, 

account  between  principal  and,  168. 
form  of  claim,  693,  716. 

ALTERNATIVE  RELIEF, 
against  parties,  371,  534. 

should  be  asked  for  in  statement  of  claim,  387. 
must  not  be  inconsistent,  535. 
contract  or  relation  from  letters,  558. 

ALLEGATIONS, 

of  fact  not  denied,  admitted,  554. 

of  fact,  denial  must  be  direct  and  substantial,  557- 

AMENDMENT, 

Court  of  Appeal,  powers  of,  420. 

of  indorsement  of  claim,  505. 

notice  of  appeal,  411,  675. 

of  parties,  541. 

writ  of  summons,  359,  577. 

of  pleadings,  389,  551,  572,  576. 

application  to  disallow,  575. 

statement  of  claim,  575. 

statement  of  defence,  551. 

leave  to,  by  opposite  side,  575* 

of  counter  claim,  575- 

time  for,  576. 

how  made,  576. 

date  and  order  of,  to  be  marked  on  pleading,  577 

delivery  of  pleading,  577- 

none,  while  demurrer  pending,  581. 


IXUEX.  781 

AMENDMENT  OF  LAW, 

to  be  administered  in  High  Court  of  Justice  and  inferior  Courts, 

50,  228 
and  declaration  of  law,  227,  451. 

administration  of  assets  of  insolvent  estates,  51,  228,  451. 
statute  of  limitations  not  to  apply  to  express  trusts,  235,  452. 
equitable  waste,  tenant  for  life  impeachable  of,  240,  452. 
no  merger  by  operation  of  law  only,  247,  250,  452. 
suit  for  possession  of  land  by  mortgagor  in  his  own  name,  253,  452. 
debts  on  choses  in  action  made  assignable  at  law,  258,  453. 
stipulations  not  of  the  essence  of  the  contract,   272,  453. 
injunctions  and  receivers  may  be  granted,  287,  453. 
damages  by  collision  at  sea  as  in  Court  of  Admiralty,  51,  303,  454. 
infants,  rules  of  equity  to  prevail,  305,  454. 

ANSWER  TO  INTERROGATORIES, 
form  of,  603,  702. 
insufficient,  603. 
time  for,  603. 
to  be  used  on  trial,  612. 
now  taken  within  the  Queen's  dominions  or  foreign  ports,  79. 

APPEAL,  COURT  OF— j^^  Court  of  Appeal, 

APPEAL, 

intermediate  Court  of,  43,  436. 

final  Court  of,  44,  425,  493. 

from  Lord  Chancellor  in  Lunacy,  117. 

no,  in  criminal  proceedings  except  for  error  apparent,  155,  405,  467. 

no,  on  decision  of  crown  cases  reserved,  155,  167. 

from  orders  made  in  chambers,  157,  407,  670. 

where  no  appeal  lies,  159,  468. 

when  under  new  procedure,  349. 

what  orders  are  subject  to,  404. 

from  Chancery  division  and  Court  of  Chancery,  405. 

no,  from  consent  order,  406,  468. 

orders  as  to  matters  of  costs  and  matters  of  discretion,  406. 

from  whole  or  part  of  judgment,  408. 

time  to,  408. 

time  for,  in  statutory  matters,  677. 

in  bankruptcy,  677. 

time,  ex-parte  applications,  409,  677. 

time,  when  extended,  410. 

notice  of  motion  of,  411. 

service  of,  675. 

respondent  not  put  to  cross,  412. 

notice  for,  676. 

time  for,  677. 

setting  down  and  listing,  413. 

security  for  costs,  413. 

to  be  by  way  of  re-hearing,  415,  675. 

evidence  how  brought  before  the  Court,  416,  677. 

may  receive  further  evidence,  418. 

power  of  the  Court  of,  as  to  amendments,  420,  675. 

what  judgment  the  Court  may  give,  420,  675. 

power  of  the  Court  of,  as  to  costs,  421,  468. 


782  INDEX. 

APPEAL — continued. 

printing  evidence  for,  421. 

interlocutory  orders,  unappealed  from,  not  to  prejudice,  from  final 

order,  622. 
stay  of  proceedings,  not,  422. 

wliat  Court  an  application  should  be  brought  in,  424. 
from  Court  of  Bankruptcy,  437. 
power  of  Her  Majesty's  Court  of,  447. 
no  Judge  to  sit  on  an,  from  his  own  order,  104,  469. 
from  orders  in  receiver  matters,  485. 
from  Recorder  and  Chairman  of  Dublin,  682. 
as  to  fines  on  jurors,  &c.,  671. 
costs  in,  421. 

APPEAL  TO  THE  HOUSE  OF  LORDS, 
from  Court  of  Appeal,  425,  44. 
no  direct  appeal  from  subordinate  Courts,  425. 
time  to,  425. 
stay  of  execution,  426. 
final,  44,  425,  493. 

APPEARANCE, 

defendant  bound  to  appear,  363,  522. 

without  defence,  363. 

time  for,  363. 

mode  of,  364. 

address  for  service,  365.  522. 

entry  of,  365,  522. 

liberty  to,  and  defend  in  ejectment,  and  by  landlord,  365,  522. 

default  of,  365,  525. 

judgment  in  default  of,  366. 

summary  order  for  judgment  after,  366,  529. 

by  third  party  to  dispute  plaintiffs  claim,  544. 

to  summons  for  recovery  of  land,  522. 

notice  of,  523. 

memorandum  of,  523. 

form  of,  688. 

of  partners,  523. 

by  a  firm,  523. 

after  time  limited,  524. 

default  of,  of  one  of  several  defendants,  526. 

in  Chancery  actions,  528. 

default  of,   pleadings  and  documents  to  be  delivered  or  filed   with 

officer,  560. 
of  third  persons,  567. 

APPLICATIONS, 

in  an  action,  stay  of  proceedings,  219,  450. 

in  general,  and  motions,  665. 

to  Judge  to  settle  issues,  377.  571. 

for  new  trial,  397. 

to  serve  out  of  jurisdiction,  362,  456. 

for  account,  where  writ  indorsed,  533. 

for  directions  when  third  party  served,  545. 

to  exclude  counter-claim,  567. 

to  amend  pleadings,  576. 

to  strike  out  interrogatories,  598. 

proper,  to  be  made  at  Chambers,  667. 


INDEX. 


'sa 


APPRENTICES 

to  solicitors,  admission  of,  78,  488. 
form  of  claim  by,  693. 

ARBITRATION, 

provisions  as  to,  393,  470. 
form  of  claim  on,  693. 

ARREST, 

of  judgment,  motion  for,  to  Divisional  Court,  90,  92,  467. 

ASSESSMENT 

of  damages,  and  trial  of  fact  in  Chancery  actions,  463. 

ASSESSORS, 

remuneration  of,  293,  470. 
trial  with,  292,  470,  626. 

ASSETS,  ,  ,         ,         , 

administration  of,  of  insolvent  estates,  Bankruptcy  rules  adopted, 

51,  228. 
Land  Judges  bound  to  take  accounts  and  administer,  147. 
administration  of,  legal  and  equitable,  327. 
transfer  of  actions  relating  to,  by  Chancery  Judge,  661. 

ASSIGNMENTS, 

of  debts  and  choses  in  action,  258,  453. 

of  estates  pendente  lite,  no  abatement  of  action,  656. 

the  difference  between  legal  and  equitable,  263. 

of  bills  of  lading,  264. 

of  choses  in  action  and  debts  must  be  absolute  and  complete,  264. 

of  actions  to  divisions,  notice  of,  510. 

new,  in  pleadings  not  necessary,  553. 

ASSIZE, 

judges  liable  to  serve  on,  93,  442,  455. 

jurisdiction  on  circuit,  154. 
saving  clause  as  to  circuits,  93,  489. 
winter  {sfe  Winter  Assizes),  94,  473. 
jurisdiction  of  courts  of,  transferred  to  High  Court,  154. 
clerks  of,  and  Nisi  Prius,  487. 
notice  of  trial  for,  623. 

ATTACHMENT, 

enforcement  of  judgments  by,  401,  638. 
solicitors  liable  to,  in  default  of  appearance,  523. 
inspection  and  discovery  by,  610. 
book  to  be  kept  by  proper  officer,  650. 
not  to  issue  without  leave,  646. 
notice  of  motion  for,  646. 
contem]5t  of  Court  for,  646. 
writ  of  attachment,  750,  754. 

ATTACHMENT  OF  DEBTS, 

legal  and  equitable,  rules  of  equity  to  prevail,  327. 

preliminary  examination  of  judgment  debtor  as  to  debts  owing  to 

him,  647. 
order  to  attach  debts  of  garnishee,  647. 
service  of  notice  to  garnishee  binds  debt,  649. 
what  debts  may  be  attached,  618. 


Y84  INDEX. 

ATTACHMENT  OF  'D'iLV.TS— continued. 
execution  for,  649. 
trial  of  issues,  649. 
claim  of  lien  or  charge,  650. 
payment  discharge  to  garnishee,  650. 
attachment  book,  650. 

ATTENDANCE 

of  witnesses  for  cross-examination  who  have  made  affidavits,  397. 

ATTORNEY-GENERAL,  i 

name  introduced  as  informant  in  an  action,  535. 

ATTORNEYS 

to  be  styled  solicitors,  487. 

see  Solicitors  of  Supreme  Court. 

AUDIT  OF  PUBIJC  ACCOUNTS 

to  Local  Government  Board,  112,  485. 

AUDITA  QUERELA, 

applications  in  nature  of,  644. 

AULA  REGIS, 

plan  of  Supreme  Court  probably  taken  from,  4. 


BANC, 

business  proper  to  be  transacted  in,  to  be  transacted  by  Divisional 
Courts,  90,  467. 

BANK  OF  IRELAND, 

payment  into  Court,  money  to  be  lodged  in,  591. 
distringas  on  stock,  652. 

BANKRUPTCY, 

jurisdiction  of  Court,  not  transferred,  3. 

rules  of  Court  of,  untouched,  63,  437. 

appeals  from  Court  of,  to  Court  of  Appeal,  63,  159,  437. 

time  for  appeal,  677. 

set  off  of  debts  in,  192. 

injunctions  by  Court  of,  215. 

judges'  jurisdiction  and  appointment  as  before,  437- 

unclaimed  dividends  in,  492. 

claim  by  an  assignee  not  to  be  joined  with  other  claims,  54S 

title  of  trustee  in,  denied,  553. 

of  party  no  abatement  of  action,  654. 

order  to  continue  after,  658. 

BELIEF 

statements  as  to,  in  affidavits,  530,  628. 

BENEFICIARIES, 

represented  by  trustees,  527. 


INDEX.  785 

BILLS  OF  DISCOVERY, 

actions  in  the  nature  of,  595- 

BILLS  IN  EQUITY, 

statement  of  claim  substituted  for,  501. 

BILLS  OF  EXCEPTIONS 

abolished,  142,  396,  676. 

BILLS  OF  EXCHANGE  ACT, 

counter  claim  allowed  in,  197,  205. 

substitution  of  plaintiff  by  consent,  209,  503, 

pending  causes  in,  346,  503. 

personal  service  of  writ  of,  summons  necessary,  360,  503. 

special  indorsement  of  writ  on  a,  507. 

form  of  pleadings  in  action  on,  693,  718,  720. 

BILLS  OF  PARTICULARS 
when  needed,  506. 

BILLS  OF  PEACE 

unassigned  to  any  Division,  173. 

BIRTH  OF  A  CHILD, 

change  of  interest  by,  658. 

BOARD  OF  WORKS, 
actions  against,  174. 

BODY,  UNINCORPORATED  OR  CORPORATE, 
service  upon,  360. 

BOND, 

form  of  claim,  693. 

BOOKS  AND  DOCUMENTS, 

transferred  to  Supreme  Court,  489. 
inspection  of,    610. 

BREACH  OF  COVENANT, 
injunction  against,  279. 

BUSINESS, 

arrangement  of,  of  Court  of  Appeal,  102,  469. 

certain  Chancery,  not  assigned,  173. 

distribution  and  arrangement  of,  generally,  92,  458. 

re-distribution  of,  37,  40,  164. 

transfer  of,  447. 

of  Divisional  Courts,  90,  465- 

in  Chancery  and  Probate  Divisions  disposed  of  by  single  judge,  465. 

future,  assigned  as  heretofore,  466. 

distribution  of,  among  officers  of  Supreme  Court,  477. 

distribution  of,  among  officers  of  Consolidated  Offices,  47S. 

to  be  discharged  in  vacation,  681. 

CANCELLING  DEEDS, 

action,  assigned  to  Chancery  Division,  170. 

indorsement  of  claim  for,  690. 

other  divisions  may  treat  dead  as  cancelled,  2 1 8. 

2  M  3 


786  INDEX, 

CASE  ON  APPEAL 
abolished,  411. 

CASES  RESERVED 

to  be  heard  by  Divisional  Coarls,  90,  g?,  466. 

CASE  SPECIAL 

after  writ  issued,  378. 

form  of,  614. 

Court  may  direct,  6l5- 

entry  for  argument,  617. 

discharging  order  irregularly  made,  616. 

leave  to  set  down  in  case  of  disability,  617. 

printing,  615- 

setting  down,  617- 

form  of,  705. 

CAUSE, 

title  of,  356. 

affidavit  to  show,  where  writ  specially  inloisei,  530. 

CAUSE  BOOK, 

copy  of  writ  to  be  filed,  and  entered  n,  509. 

to  be  kept  in  the  form  of  Appendix  G,  510. 

form  of,  756. 

entry  of  appearance  in,  522. 

copy  of  all  pleadings  to  be  filed  within  two  day;  and  entered  n,  560, 

CAUSE  OF  ACTION, 

not  essential  to  state  it  in  any  particular  legal  form,  386. 

joinder  of,  30,  225,  535,  546. 

may  be  excluded  when  inconvenient,  549. 

CAUSES,  PENDING,  343, 

CEMETERY, 

turning  land  into  a,  legal  waste,  241. 

CERTIFICATE, 

of  ofiicer  of  Notice  Department,  proof  of  service,  5S9. 

judgment,  immediate  on,  registrar's,  625. 

form  of,  706. 

of  counsel  for  new  trial,  632. 

of  solicitor  for  lower  scale  of  fees,  form  of,  762. 

CERTIORARI, 

writ  of,  135. 

CESTUI  QUE  TRUST, 

accounts  between,  and  trustee,  168,  232. 

represented  by  trustees,  537- 

may  be  ordered  to  be  made  parties,  537- 

statute  of  limitations  does  not  apply  between,  and  his  trustee,  231. 

CHAIRMAN  OF  COUNTY, 

first  class,  reduced  from  33  to  21,  and  the  5  Recordtrships  merged, 

appointed  after  14th  of  August,  1S77,  prohibited  from  practising  at 

the  li.ir,  50. 
of  Dublin,  appeals  from,  6S2. 


INDEX.  78T 

CHAMBERS, 

sittings  in,  regulated  by  Rules  of  Court,  59,  471,  667. 

jurisdiction  of  judges  in,   155. 

appeals  from  orders  made  by  judges  in,  90,  157,  407,  46S,  670. 

discharging  orders  at,  157,  670. 

applications  proper  for,  667. 

Court  may  direct  what  business  to  be  disposed  of  at,  669. 

practice  at,  670. 

counsel  at,  670. 

CHANCELLOR,  LORD, 

development  of  the  equitable  jurisdiction  of,  5. 
President  of  Supreme  Court  of  Judicature,  55. 

High  Court  of  Justice,  S2,  436. 

Chancery  Division,  84. 
how  appointed,  83,  435. 
judicial  functions  of,  84,  102. 
ex-officio  Judge  of  Court  of  Appeal,  loi. 
President  of  the  Court  of  Appeal,  102,  161,  441. 
duty,  authority  and  power  generally,  unaltered,  113,  489. 
visitorial  jurisdiction  of,  114. 
the  lunacy  jurisdiction  of,  1 1 5- 
statutory  jurisdiction  in  lunacy,  120. 
divesting  of  estates  in  lands  of  lunatic  trustees,  127. 
appointing  persons  to  convey  (in  cases  of  lunatic  trustees),  127. 
divesting  of  estates  and  appointing  new  trustees,  128. 
power  vested  in,  in  lunacy  may  be  exercised  liy  committee,  132. 
authority  over  officers  of  Court  of  Appeal  may  be  exercised  by,  l6l> 

CHANCERY,  COUR.T  OF— j-tv  Court  of  Chancery. 

CHANCERY,  COURT  OF  APPEAL-  se-e  Court  of  Appeal  in  Chancery. 

CHANCERY  DIVISION, 

business  of  Tudges  of,  38. 

Lord  Chancellor  President  of,  84. 

Judges  of,  87,  457.  ,        .        ^  , 

Judges  of,  may  be  included  in  Commissions  of  Assize,  &c  ,  96. 

transfer  of  actions  from  common  law  divisions  and  vice  versa,  177,. 

661. 
name  of  Judge  to  be  marked  on  writ  in  action  in  rotation,  466. 
appeals  from  judgments  and  orders  in,  405. 
business  assigned  to,  166,  458. 
assessment  of  damages  and  trial  of  fact  in,  463. 
business  of  to  be  disposed  of  by  a  single  Judge,  465. 
Judges  of  appeal  may  sit  in,  87,  104,  469. 
appearance  to  actions  in,  528. 
time  for  delivery  of  defence,  564. 

default  of  appearance  of  one  of  several  defendants,  587. 
transfer  of  actions  for  trial  or  hearing  only  in,  660. 
applications  to  be  made  in  chambers,  668. 
issuing  and  hearing  of  summonses  as  in  Court  of  Chancery,  670. 

CHANGE  OF  PARTIES  BY  DEATH,  &c., 

no  abatement  if  cause  of  action  survive,  654. 

application  to  issue  execution,  643. 

Court  may  order  pcr^uiia  to  be  served  with  notice,  655. 


CHANGE  OF  PARTIES  BY  DEATH,  Si.Q.— continued. 
order  in  case  of,  65S. 
service  of  order,  659. 
appearance  to,  659. 
discharging  order,  659. 
like  any  person  under  disability,  659. 

CHARACTER  OF  PARTIES, 
indorsement  of,  505. 
form  of,  698. 

CHARGE, 

disposal  of  lien  or,  650. 

CHARGING  STOCK  OR  SHARES, 
order,  of  debtor,  651. 

CHARITABLE  TRUSTS,  . 

matters  in,  assigned  to  Chancery  Division,  170. 

CHARITY, 

Lord  Chancellor's  jurisdiction  as  visitor,  114. 

CHARTER  PARTY, 
pleadings  on,  721. 

CHATTELS,  LEASEHOLD, 
partition  of,  1 7 1, 
order  for  sale  of,  663. 

CHIEF  BARON  OF  THE  EXCHEQUER, 

President  of  the  Exchequer  Division,  87,  457. 
ex-officio  Judge  of  the  Court  of  Appeal,  loi. 
duty,  authority  and  power  generally  unaltered,  113. 

CHIEF  JUSTICE  OF  IRELAND, 

President  of  Queen's  Bench  Division,  88,  457. 

ex-officio  Judge  of  the  Court  of  Appeal,  loi. 

duty,  authority  and  power  generally  unaltered,  113. 

CHIEF  JUSTICE  OF  COMMON  PLEAS, 

President  of  the  Common  Pleas  Division,   88,  457. 

ex-officio  Judge  of  the  Court  of  Appeal,  lOl. 

duty,  authority  and  power  generally  unaltered,  1 13. 

CHOSES  IN  ACTION, 

divesting  of  stock,  and  of  lunatic  trustees  and  mortgagees,  127. 

assignment  of,  debts  and,  258,  453. 

what  are,  259. 

confined  to  legal  choses,  260. 

bow  far  assignable  hitlierto,  261. 

future  assignments  effectual,  262. 

is  the  statute  compulsory,  263. 

the  assignment  must  be  in  writing  under  the  hand  of  the  assigTior, 

264. 
must  not  be  a  bare  right  of  action,  but  must  be  some  substantial 

possession,  262. 
the  assignment  must  be  absolute  and  complete,  264. 
notice  to  debtor  is  essential,  265. 
notice  must  be  express  and  in  writing,  267. 
the  assignment  is  effectual  from  date  of  service  of  notice,  269. 
the  assignment  is  "  subject  to  all  equities,"  270. 


INDEX.  789 

CIRCUITS, 

Circuits  and  Assizes  to  continue,  93,  489. 
power  to  re-arrange,  94,  472. 
allowance  for  Judges  going,  443. 
winter  assizes,  94,  473. 

CIVIL  BILL  COURTS, 

certain  rules  of  the  J.  A.  1877,  ^PP^Y  to,  45,  488. 
appeals  to  be  heard  before  a  single  Judge,  56. 
transfer  of  actions  to  Chancery  Division,  48. 
jurisdiction  of,  46. 
power  to  remit  actions  to  be  tried  in,  427,  470. 

CLAIMS, 

both  legal  and  equitable  must  be  considered,  27,  451. 

indorsement  of,  on  writ  of  summons,  357,  505. 

statement  of,  562. 

by  or  against  husband  and  wife  may  be  joined  with  other  claims.  548, 

by  or  against  executor  when  joined,  548. 

judgment  for  part  of,  532. 

liquidated,  not  endorsed  affidavit  of  particulars,  526. 

admission  of,  612. 

CLAS6, 

representatives  of,  for  purpose  of  action,  374,  539. 

CLERKSHIPS, 

junior,  open  to  competition,  481, 

CLOSE  OF  PLEADINGS, 

when  deemed  to  be  closed,  377,  571. 
interrogatories  after,  597. 

CO-DEFENDANTS, 

cross  relief  against,  r^nd  third  persons,  199. 

cross  relief  against,  must  include  relief  against  plaintiff,  202,  207. 

collateral  relief  between,  203. 

COLLISION, 

at  sea,  standard  of  damages.  Admiralty  rule  adopted,  51,  303,  454. 
limit  of  liability  by  Merchant  Shipping  Act,  304. 
of  vessels — Preliminary  Act,  559. 

COMBINATION  OF  SUITS, 

to  form  one  action,  30,  195,  225. 

COMMENCEMENT  OF  ACTION, 

by  writ  of  summons,  176,  355,  501. 

COMMISSION, 

Great  Seal  of  Ireland  in,  84,  490. 

COMMISSIONS  OF  ASSIZE  AND  NISI  PRIUS, 

commissions  to  try  questions  of  fact  and  law,  93,  455. 
judges  foii  ordinary,  95. 
for  Dublin,  96,  108. 
payment  for,  463. 


790  INDEX. 

COMMISSIONER, 

to  try  causes,  right  of  suitor  to  resort  to,  156,  626. 
for  the  administration  of  oaths,  78,  483. 
appointed  by  Lord  Chancellor,  482. 

COMMITTAL 

to  enforce  judgment,  401,  638. 

COMMITTEE  OF  LUNATIC, 

actions  by  and  against,  549. 

COMMON  LAW  DIVISION, 
business  of,  174- 

transfer  of  actions  from,  to  Chancery  Division,  and  vice  .versa,  1 77. 
practice  at  chambers  in,  670. 
appeal  from  chairibers  in,  670. 

COMMON  PLEAS,  COURT  OF— j^v  Court  of  Common  Pleas. 

COMMON  PLEAS  DIVISIONS, 
business  of,  39. 
judges  of,  88,  457. 
assignment  of  business,  91,  175- 
applications  at  chambers,  669. 

COMPANY, 

interrogating,  597. 
service  upon.  360. 
see  also  winding-up. 

CONCURRENT    ADMINISTRATION    OF    LAW   AND   EQUITY, 
rules  for  the,  33,  184,  449. 

CONCURRENT  WRITS, 

issued  within  12  months,  51 1. 

within  and  without  the  jiu-isdictinn,  511, 

CONFESSION, 

of  defence  by  plaintiff,  561. 
form  of,  700. 
judgnient  for  costs,  562. 

CONFIDENTIAL   COMMUNICATIONS, 
what  are  protected  from  discovery,  602. 

CONFLICT, 

law  and  ecinity,  9,  1S4. 

as  to  waste,  244. 

in  merger  of  estates,  247. 

mortgagor,  253. 

in  choses  in  action,  25S. 

as  to  contracts,  273. 

in  damages  to  ships  by  collision,  303,  454. 

as  to  custody  of  infants,  312. 

as  to  religious  education,  316. 

mistake  in  written  agiecments,  332. 

as  to  retainer  and  pieference  none,  335. 

in  cases  of  conflict  lulcs  of  equity  are  to  prevail,  454. 


CONSENT, 

orders,  no  appeal  against,  406. 
to  act  as  guardian  filed,  538. 

CONSOLIDATiON  OF  ACTIONS 
arising-out'of  one  instrument,  30. 
in  any  division  or  divisions,  661. 
jurisdittion  as  to,  661. 
actions  must  be  germane,  661,  662. 

CONTEMPT  OF  COURT, 
attachment  for,  645,  646. 

CONTRACTS, 

stipulations  not  of  the  essence  of  the,  272,  453. 
to  be  construed  according  to  Equity,  273.    • 
stipulations  as  to  time  and  quantity,  273. 
addition  of  defendant  in  actions  for,  371. 
■  transfer  of  action  for  breach  of,  to  Civil  Bill  Court,  427. 
service  out  of  jurisdiction  in  actions  for,  51S. 
bare  denial  of  how  construed,  ^^l. 
arising  from  letters  how  pleaded,  55^- 

CONTRIBUTION, 

between  co-debtors,  co-sureties,  and  co-contractors,  328. 

COPIES, 

two,  of  writ  required  for  officers  of  the  Court,  509. 

of  all  pleadings  to  be  left  with  officer  within  two  days,  560. 

two,  of  pleadings  to  be  lodged  on  entry  for  trial,  623. 

COPYRIGHTS, 

unassigned  to  any  Division, 
injunctions  against  violation,  2S5. 
infringement,  claim  on,  696. 

CORPORATION, 

service  of  summons  on,  360. 

application  to  serve  interrogatories  on,  597. 

discovery  by  officer,  598' 

COSTS, 

to  be  regulated  by  rules  of  Court,  59,  471. 

under  a  Judge's  order  may  be  the  subject  of  a  set-oft",  193. 

if  plaintiff"'s  claim  is  reduced  by  counter  claim  to  be  decided  under 

County  Courts  Act,  195,  402. 
taxation  of,  of  witnesses,  336. 
for  misjoinder  of  parties,  368. 
of  prolixity,  396. 

generally  in  discretion  of  Court,  402,  468. 
of  action  tried  by  Jury,  402. 
statutes  limiting,  remain  in  force,  403,  46S. 
of  trustees  and  mortgagees  unaffected,  .403,  468. 
party  and  party  costs  may  include  solicitors,  403. 
security  for  costs  in  appeals,  413. 
security  in  action,  672. 
power  of  Court  of  Appeal  as  to,  421. 
order  for,  may  be  varied  by  a  Divisional  Court,  468. 
of  needless  traverses  of  fact,  565. 


792  INDEX. 

COST?)— coftiinued. 

of  demurrer  when  allowed,  581 
of  interrogatories,  597. 
appeal  for,  not,  406. 
of  appeal,  42 1 . 

COSTS,  SCALE  OF, 

lower  in  what  action,  758. 

higher,  758. 

Court  may  allow  either,  758. 

COUNCIL  OF  JUDGES, 

to  be  convened  by  the  Lord  Chancellor,  55. 
annual  report,  57,  474. 
majority  necessary,  60. 
extraordinary,  58. 

COUNSEL, 

signature  of,  not  necessary  to  pleadings,  377. 
certificate  of,  for  new  trial,  632. 
at  Chambers  costs  of,  670. 

COUNTERCLAIM, 

reUef  by  set  off  and,  190,  192,  449,  550. 

must  not  be  incongruous,  196. 

how  far  confined  to  same  transaction,  198. 

should  relate  to  original  subject  of  suit,  200. 

must  include  relief  against  the  plaintiff,  202. 
,.:   no,  by  third  persons,  204. 
"■     by  way  of  interpleader,  204. 

to  raise,  in  pending  actions,  347. 

defence,  set  off  and,  376. 

facts  in,  553. 

involving  new  parties,  title  of,  566. 

service  of,  on  third  person,  566. 

reply  to.  567. 

application  to  exclude,  567. 

judgment  for  balance  of,  567. 

withdrawal  of,  by  leave,  569. 

amendment  of,  575. 

COUNTERMAND, 

of  notice  of  trial  by  leave  or  consent  only,  623. 

COUNTY  COURT, 

sketch  of  judicature  of,  45. 

equitable  jurisdiction  conferred,  45,   47. 

rules  of  Court  of  Judicature  as  to  pleading,  practice,  and  procedure, 

made  applicalile,  46. 
jurisdiction  generally,  47,  49. 

jurisdiction  limited  to  £$00  cash  and  ^^30  per  annum,  48. 
appeals  from,  48. 

transfer  of  causes  to  the  Chancery  Division,  48. 
injunctions  by  judge  of,  215. 

COURT, 

meaning  of  the  word,  37,  108. 

payment  of  money  into,  388,  390,  590- 

additional  costs  of  moving  in,  disallowed,  669. 

may  direct  what  business  disposed  of  at  chambers,  669. 


INDEX.  793 

COURT    OF    JUDICATURE,     SUPREME— j^t-    Supreme    Court   of 

Judicature. 

COURTS, 

diversity  of,  ii. 

the  former,  have  ceased  to  exist,  55. 

duly  constituted  during  any  vacancy  in  the  office  of  a  judge,  87,  440. 

may  sit  at  any  time  or  place,  98. 

statutes  relating  to  former,  apply  under  this  Act,  475. 

COURT  OF  ADMIRALTY,  HIGH, 

to  be  annexed  to  Probate  Division,  153,  438. 

jurisdiction  to  be  annexed  to  High  Court  on  the  death  of  existing 

judge,  82,  438. 
appellate  jurisdiction  transferred  to  Her  Majesty's  Court  of  Appeal, 

I59>  43S. 
rules  of  the,  to  prevail  in  cases  of  collision  over  those  of  common 

law,  51. 
existing  judge  of,  438. 
no  successor  to  be  appointed  to  existing  judge,  82,  153,  438. 

COURT  OF  APPEAL,  HER  MAJESTY'S,  IRELAND, 
A  superior  Court  of  Record,  27,  158. 
business  of,  43. 

appeals  from,  to  House  of  Lords,  44,  425. 
jurisdiction  of,  43,  56,  158,  345,  446. 
constitution  of,  loi,  439,  469. 
constituent  members  of,  loi. 
arrangement  of  business  of,  102,  469. 
no  judge  to  sit  on  appeal  from  his  own  order,  104,  469. 
where  no  appeal  lies,  159. 
primary  jurisdiction,  160. 

number  of  Judges  to  constitute  a  Court,  161,  469. 
interim  orders  in  vacation,  161. 
may  receive  further  evidence,  418. 
powers  of  the,  as  to  amendment,  420. 
powers  as  to  costs,  421. 
Judges  of,  loi,  439. 
Lord  Chancellor  President  of,  440. 
has  all  the  power  of  the  High  Court,  447. 
jurisdiction  transferred  to,   to  be  exercised  as  nearly  as  may  be  as 

heretofore,  448. 
power  of  a  single  Judge  in,  161,  469. 

COURT  OF  APPEAL  IN  CHANCERY, 

jurisdiction  transferred  to  Her  Majesty's  Court  of  Appeal,  43,  158, 

446. 
pending  causes  in,  to  be  continued  in  Her  Majesty's  Court  of  Appeal, 

344- 

COURT  OF  BANKRUPTCY— J^^  Bankruptcy. 

COURT  OF  CHANCERY,  HIGH, 

jurisdiction  as  a  common  law  court  or  as  an  equity  court  transferred 

to  High  Court,  106. 
all  jurisdiction  of  masters  in,  transferred  to  High  Court,  108. 
appointment  of  new  trustees  by,  120. 
jurisdiction  of,  in  lunacy,   1 15,  132. 


794  INDEX. 

COURT  OF  CHANCERY,  UlGU—cofiitNued. 

territorial  limits  of  the  power  of,  in  lunacy,  131. 

common  law  jurisdiction  of,  134. 

pending  business  of,  transferred  to  Chancery  Division,  165. 

Chancery  business  not  assigned,  173. 

pending  causes  how  continued,  350. 

what  decrees  may  be  appealed  from,  405. 

COURT  OF  COMMON  PLEAS, 

jurisdiction  transferred  to  High  Court,  106. 

pending  business  of,  transferred  to  Common  Pleas  Division,  165. 

COURT,  MATRIMONIAL  CAUSES  AND  MATTERS, 

jurisdiction  transferred  to  High  Court,  106. 

pending  business  of,  transferred  to  Probate  and  Matrimonial  Division, 
165. 

COURT  OF  EXCHEQUER, 

jurisdiction  as  a  court  of  revenue  as  well  as  a  common  law  court, 

transferred  to  High  Court,  106. 
pending  business  of,  transferred  to  Exchequer  Division,  165. 

COURT  OF  EXCHEQUER  CHAMBER, 

jurisdiction  transferred  to  H.M.  Court  of  Appeal,  43,  15S,  446. 
pending  business  transferred  to,  165. 

COURT,  HIGH,  OF  JUSTICE— j^^  High  Court  of  Justice. 

COURT  FOR  LAND  CASES  RESERVED, 

jurisdiction  transferred  to  H.M.  Court  of  Appeal,  43,  158,  446. 
questions  reserved  for  the  Court  of  Appeal,  159,  467. 

COURT,  LANDED  ESTATES— Jtv  Landed  Estates  Court. 

COURT  OF  PROBATE, 

jurisdiction  transferred  to  High  Court,  106. 

pending  business  of,  transferred  to  Probate  and  Matrimonial  Division, 

165. 
Admiralty  Division  to  be  annexed,  438. 

COURT  OF  QUEEN'S  BENCH, 

jurisdiction  transferred  to  High  Court,  106. 

pending  business  of,  transferred  to  Queen's  Bench  Division,  165. 

COVENANT,  form  of  claim,  697. 

CREDITOR, 

what  is  a  secured,  230. 

a  judgment  is  not  an  assignee,  264. 

indorsement  of  claim  by,  689. 

CRIMINAL, 

business  to  be  regulated  by  Rules  of  Court,  59,  471. 

jurisdiction  transferred  to  High  Court,  154. 

no  appeal  in,  matters,  unless  for  error  apparent,  405,  467. 

CRIMINAL  PROCEEDINGS, 

subject  to  future  Rules,  the,  procedure  remains  unaltered,  154,  340,- 

473>  500. 
no  appeal  in,  except  for  error  apparent,  155,  159.  467. 


INDEX.  795 

CROSS-CLAIM, 

when  dispensed  with,  189. 

where  have  been  allowed,  195,  19S. 

also  see  Counter  Claim. 

CROSS-EXAMINATION, 

orders  for,  of  witnesses,  who  have  made  affidavits,  397,  630. 

CROSS  RELIEF— j^£  Relief. 

CROWN  CASES  RESERVED, 

to  be  heard  by  at  least  five  Judges  of  the  High  Court  of  Justice,  36,. 

155.  467. 
decision  final,  155,  467. 
practice  and  procedure  to  remain  unaltered,  340. 

CROWN  SIDE  OF  QUEEN'S  BENCH  DIVISION, 

practice  and  procedure  to  remain  unaltered,  340,  500. 

CUSTODY, 

of  infants  and  their  estates,  51,  172. 

and  education  of  infants,  305,  51. 

right  to,  of  an  infant  at  law  and  in  equity,  312. 


DAMAGES  AND  OTHER  CLAIMS, 
indorsements — see  Forms,  p.  695. 

DAMAGES, 

unliquidated,  may  be  the  subject  of  a  set  off,  193. 

by  collision  of  ships  at  sea,  303,  454,  559. 

assessment  of,  and  trials  of  facts  in  Chancery  Division,  463. 

where,  to  be  assessed  on  demurrer,  622. 

DATE, 

numbers  and  sums  to  be  expressed  in  figures,  387. 
writ  of  summons,  513- 

pleadings  to  be  marked  with,  of  delivery,  560. 
of  judgment,  638. 

DEATH, 

no  abatement  of  action  if  cause  continues,  654,  658. 

DEBTS, 

set  off  of,  191. 

and  liabilities,  what  are,  230. 

assignment  of,  and  legal  choses  in  action,  25S,  453. 

attachment  of,  327,  647. 

special  endorsement  of  liquidated  demand,  506. 

DEBTOR, 

in  cases  of  conflicting  claim  may  interplead,  or  pay  debt  into  court,. 

259,  271,  453. 
assent  of,  not  necessary  for  a  good  assignment,  969. 
a  joint,  may  be  sued  together  with  the  exegutor  of  deceased  debtor, 

331- 

judgment,  may  be  examined  as  to  debts  owing  to  them,  647. 


796  INDEX. 

DECEASED  PERSONS— Also  s^e  Administration, 
where  no  personal  representative,  541. 

DECLARATION 

of  rights  unassigned  to  any  Division,  173. 

DECREE, 

included  in  judgment,  434. 

DEEDS,  .  .     ^ 

rectification  or  cancellation  of  (assigned  to  Chancery  Division),  1 70. 
power  of  Masters  in  Chancery  to  execute,  109. 
fraud  in,  330. 

DEFAULT, 

of  appearance,  365,  525. 

of  appearance  of  one  of  several  defendants,  526. 

of  appearance  in  actions  for  recovery  of  land,  527. 

of  appearance,  pleadings  to  be  delivered  to  officer,  560. 

judgment  in,  366. 

of  statement  of  claim,  375,  583. 

of  statement  of  defence,  376. 

of  reply,  377,  587. 

of  pleading  to  issue  with  third  party,  587. 

of  appearance  of  plaintiff  or  defendant  at  trial,  395- 

of  appearance,  filing  documents  in,  589. 

setting  aside,  judgnient  by,  624. 

DEFENCE, 

equitable,  good  in  the  High  Court,  30,  1S6,  449. 
equitable,  to  equitable  claim,  187. 
ap])earance  without,  363. 
default  of,  376. 

set-off  and  counter-claim,  376. 
withdrawal  of,  by  leave,  390,  569. 
delivery  of  statement  of,  550,  564. 
leave  to  enter  on  terms,  533. 
leave  to  enter,  when  writ  specially  indorsed,  532. 
in  ejectments,  554. 
limited,  in  ejectments,  524. 
^       true  ground  of,  must  be  raised  by  pleadings,  555. 
arising,  after  action  brought,  561. 
pleading  after  delivery  of,  561. 

voluntary,  may  be  delivered  within  eight  days,  565. 
denuirrer  and  combined,  579. 
default  of,  to  liquidated  claim,  583. 
pleading  payment  into  Court  in,  590. 
also  sc'i:  statement  of  defence, 

DEFENDANTS, 

interpretation  of  term,  434. 

joinder  of,  535. 

need  not  be  interested  in  all  the  relief,  536. 

joined  in  case  of  doubt,  536. 

new  must  be  served  with  amended  writ,  542. 

appearance  by,  365. 

wlien  bound  to  appear,  522. 

may  disclose  facts  entitling  to  defend,  532. 

default  of  appearance,  587. 

when  hound  lo  file  statement  of  defence,  376. 


79^ 


DEFENDANTS— f£7«/i««<ca'. 

in  ejectment  need  not  plead  his  title,  554. 

counterclaim  by,  195,  449. 

indemnity  from  third  person,  205,  449. 

affidavits  for  trial,  when  filed,  629. 

notice  of  trial  by,  394, 

non-appearance  at  trial,  395,  623. 

judgment  as  to  one  of  several,  526,  533,  584,  585. 

judgment  for,  on  counterclaim,  567. 

application  for  injunction  by,  294. 

costs  of  misjoinder,  368. 

withdrawing  defence,  568. 

DELIVERY, 

of  statement  of  claim,  time  for,  562. 

of  statement  of  defence,  550,  564. 

date  of,  to  be  marked  on  pleadings,  560. 

of  notice  in  lieu  of  statement  of  claim,  563. 

of  newly  entitled  counterclaim  to  all  the  parties,  566. 

of  pleading  subsequent  to  reply  within  four  days,  571. 

of  amended  pleadings,  577. 

of  documents  how  effected,  589. 

interrogatories,  time  for  delivery  of,  593. 

writ  of,  753. 

form  of  praecipe  for,  750. 

DEMURRAGE 

binding  third  party  to  claim  for,  206. 

DEMURRER, 

when  to  be  filed,  378,  552. 

may  be  taken  to  any  pleading,  or  part  of,  577. 

must  state  how  much  it  is  taken  to  and  ground  of,  578. 

delivery  of,  579. 

and  defence  combined,  479. 

leave  to  plead  and  to  demur  to  same  pleadings,  579. 

entry  of,  for  argument  within  ten  days,  580,  582. 

no  amendment  of  pleading  without  leave,  while,  pending,  581. 

costs  of,  when  allowed,  581,  582. 

allowance  of,  pleadings  struck  out,  582. 

pleading  after  overruled,  582. 

where  damages  to  be  assessed  on,  622. 

form  of  demurrer,  745. 

form  of  memorandum  of  entry,  745. 

DENIAL, 

general,  not  permitted,  388,  557. 

costs  of  needless,  of  allegations  of  fact,  565. 

DEPOSIT, 

on  appeal,  not  without  special  order,  413,  678. 

DEPOSITION, 

Court  may  allow,  to  be  read  at  trial  for  special  reasons,  60,  390. 

DETENTION, 

of  goods,  default  of  appearance,  527. 

of  goods,  interlocutory  judgment  for,  584. 

order  for,  and  sale  or  inspection,  663. 


798  INDEX, 

DEVOLUTION, 

of  title  no  abatement,  655. 

DIRECTING  JURY, 

see  Trial,  and,  398, 

DISCHARGE 

of  garnishee,  650. 

orders  made  in  chambers,  90,  407,  468 

of  orders  to  bind  parties  in  case  of  change  of  parties  to  actions,  659. 

DISCLOSURE  AS  TO  PARTIES,  &c., 
as  to  names  of  firm,  512. 

DISCONTINUANCE  OF  ACTION, 

option  of  plaintiff,  on  receiving  a  counter  claim,  in  pending  causes, 

348,  568. 
when  plaintiff  may  give  notice  of,  3S9,  568. 
judgment  for  costs,  570. 

DISCONTINUANCE  OF  DEFENCE, 
by  leave  only,  568. 

DISCOVERY, 

unassigned  to  any  division,  38. 

rules  of  equity  to  prevail,  329. 

and  evidence,  390. 

if  plaintiff  claim  is  for,  only  statement  of  claim  should  show  it,  397. 

and  inspection,  593, 

order  for,  of  documents,  604. 

DISCRETION, 

no  appeal  from,  406,  468. 

DISMISSAL  FOR  WANT  OF  PROSECUTION, 

for  default  of  pleading,  583. 

for  failure  to  give  discovery  or  inspection,  610. 

in  default  of  plaintiff  giving  notice  of  trial,  393,  621. 

DISSOLUTION  OF  PARTNERSHIP, 

actions,  assigned  to  Chancery  Division,  38,  167. 

DISTRIBUTION  OF  BUSINESS, 

arrangements  generally  of,  92,  458. 

re-distribution,  37,  40,  164. 

by  general  orders,  165. 

partial,  by  the  Judicature  Act,  165,  458. 

pending  at  the  passing  of  the  Act,  165. 

in  the  future,  which  would  have  been  attached  to  former  Courts,  165, 

466. 
among  officers  of  Court,  67,  69. 

DISTRINGAS, 

charging  of  stock  or  shares,  and,  651. 

DIVIDENDS, 

payment  of  unclaimed,  in  bankruptcy,  492. 


INDEX.  799 

DIVISIONAL  COURTS, 

for  what  business,  90,  464. 

in  Chancery  business,  90. 

how  constituted,  91,  464. 

attendance  of  judges,  91. 

arrangements  as  to  business,  91. 

jurisdiction  of,  92. 

appeals  from,  to  Court  of  Appeal,  92. 

power  of,  to  vary  orders,  392. 

application  to,  for  new  trial,  397. 

President  of,  senior  judge,  464. 

for  business  of  Common  Law  Divisions,  465. 

all  judges  bound  to  take  part  in,  if  required,  465. 

Cases  and  points  reserved  for,  466. 

new  trial  motions  to  be  to,  397,  467. 

DIVISIONS  OF  HIGH  COURT, 

each,  virtually  different  Courts,  37. 

the  five  Divisions  of  the  High  Court,  456,  87. 

(i).  Chancery,  87,  457. 

(2).  Queen's  Bench,  88,  457. 

(3).  Common  Pleas,  88,  457. 

(4).   Exchequer,  88,  457. 

(5).  Probate  and  Matrimonial,  88,  457. 
one  Division  cannot  prohibit  proceedings  in  another,  139. 
marking  name  of  Division  on  writ,  176,  356,  460,  501- 
actions  brought  in  the  wrong,  176,  460. 
transfer  of  actions  from  one  to  another,  176,  461,  660. 
notice  to  officer  of  assigning  action  to,  510. 

DOCUMENTS, 

all,   books,  papers,  &c.,  of  transferred  Courts,   &c.,   transferred  to 

Supreme  Court,  64,  489. 
mistakes  in  rules  of  equity  to  prevail,  332. 
order  for  production  of,  604. 
order  for  discovery  of,  595>  604. 
time  to  make  application  concerning,  6o5. 
enforcing  inspection,  609. 
notice  of  willingness  to  allow,  609. 

issues,  or  questions  decided  preliminary  to  order  to  inspect,  610. 
requisition  to  admit,  612. 

date  of  judgment  from  production  of  requisite,  637. 
lodged  on  entering  appeal,  676. 
sufficient  to  set  forth  the  effect  of,  557. 
delivery  how  effected,  589. 
form  of  affidavit,  702. 

of  notice  to  produce,  705. 

of  notice  to  admit,  704. 
DOUBT, 

joinder  of  defendants  in  case  of,  536. 

DOWER, 

abolished  as  a  real  action,  39. 

DUBLIN,      . 

Commissions  and  sittings  at  Nisi  Prius,  96,  108,  456,  463. 
sittings  of  judges  during  vacation,  99. 
Nisi  Prius  sittings  to  be  continuous,  99. 


800  INDEX. 

UV  BLl'N— continued. 

general  lists  for  trial,  394. 
one  judge  for  commission,  463. 
entry  for  trial  by  opposite  party,  623. 
notice  of  trial  in,  continuous,  622. 
Nisi  Prius  sittings  in,  671. 

EDUCATION, 

custody  and,  of  infants,  rules  of  equity  to  prevail,  51,  305,  321. 
religious,  of  infants,  316. 

EFFECT  OF  NON-COMPLIANCE. 

of  notice  to  produce  documents,  608. 
generally  as  to  rules,  679. 

EJECTMENT, 

liberty  to  appear  and  defend  in  action  of,  365. 

transfer  of  actions  of,  to  Civil  Bill  Court,  427,  470. 

application  to  remit  for  non-payment  of  rent,  682. 

limited  defence  to,  524. 

rent  may  be  joined  with,  547. 

defendant  need  not  plead  title  to,  544. 

ELECTION  PETITIONS, 

rota  of  judges  for,  100,  464. 

jurisdiction  in,  transferred  to  Common  Pleas  Division,  loo,  174, 

ELEGIT, 

writ  of,  639. 

form  of  praecipe  for,  749. 

how  far  obsolete,  639. 

EMBARRASSING, 

statements  to  be  struck  out,  573. 

ENROLMENT, 

of  decrees  in  Chancery  Division,  how  far  necessary,  4015. 

ENTRY 

of  appearance,  365,  522. 

of  demurrer  for  argument  and  notice  thereof,  5S0. 

of  special  case  for  argument,  617. 

notice  of  action  for  trial,  622. 

of  findings  by  Registrar,  625. 

judge  may  order,  of  judgment,  625. 

of  actions  for  trial,  394. 

of  judgments,  399. 

EQUITABLE  CLAIMS, 

entertained  in  all  divisions,  1S4,  212,  224,  449. 

EQUITABLE  DEFENCES, 

good  in  Common  Law  Divisions,  30,  1S6,  449. 

to  equitable  claims,  187. 

in  lieu  of  injunctions  and  legal  claims,  213. 

EQUITABLE  WASTE, 

by  tenant  for  life,  240,  452. 

restrained,  243. 

conflict  between,  and  legal  waste,  244. 


INDEX.  801 

EQUITIES, 

.   assignments  subject  to  all,  270. 

between  assignees,  270. 

incidental,  21 1,  450. 
EQUITY, 

the  development  of  law,  8. 

conflict  between  law  and,  9. 

concurrent  administration  of  law  and,  33,  184. 

supposed  fusion  of  law  and,  33. 

matters  of,  to  be  pleaded  where  formerly  an  injunction  would  have 
been  granted,  216,  450. 

set  off  in,  191. 

rules  to  prevail  over  those  of  law,  51,  324. 

general  prevalence  of  the  rales  of,  324. 
EQUITY  TO  A  SETTLEMENT, 

whether  wife's  to  prevail  in  every  division,  330. 

ERROR, 

writ  of,  from  Q.  B.  Division  to  House  of  Lords,  154,  160,  473. 
WTit  of,  to  the  Court  of  Appeal,  by  way  of  appeal,  160. 
bail  in,  stay  of  execution,  426. 
writs  of,  otherwise  abolished,  676. 

ESSENCE  OF  CONTRACT, 

stipulations  not  of,  disregarded,  272,  453. 

ESTATES, 

merger  of,  in  law  and  equity,  247. 

no  merger  by  operation  of  law  only,  247,  250,452. 
EVIDENCE, 

rules  of,  not  affected  by  act,  60,  394,  473. 

on  motion,  petition,  or  summons,  627. 

order  for  examination  of  deponent,  628. 

by  oral  examination  of  witnesses  at  trials  by  jury  not  affected  by 
rules,  60,  396,  473,  627. 

on  hearing  of  pending  suits,  350. 

not  to  be  pleaded,  381, 

discovery  of,  390. 

trials  on,  525. 

rejection  of,  on,  398,  499. 

when  to  be  reported  by  short-hand  writer,  394. 

on  other  trials  than  by  jury,  how  taken,  397. 

by  affidavits,  397,  629. 

how  brought  before  the  Court  of  Appeal,  416. 

Court  of  Appeal  may  receive  further,  418. 

printing  for  appeals,  421. 

of  renewal  of  writ  of  summons,  514. 

EXAMINATION, 

oral,  of  witnesses  not  affected,  390. 
order  for,  of  deponent,  628. 

EXCEPTIONS, 

formal  bills  of,  abolished,  396,  676. 

right  to  have  case  properly  submitted  to  jury  enforced  by  motion  or 

by  appeal,  396,  466. 
to  directions,  party  may  move  either  a  Divisional  Court  or  the  Court 

of  Appeal,  396,  404. 
from  general  orders,  682. 

2  N 


802  INDEX. 

EXCHEQUER  CHAMBER, 

jurisdiction  of,  transferred  to  Court  of  Appeal,  446. 

EXCHEQUER,  CHIEF  BARON— j-^c  Chief  Baron. 

EXCHEQUER  COURT— j-^^  Court  of  E.xchcquer. 

EXCHEQUER  DIVISION, 
business  of,  39,  174,  460. 
judges  of,  88,  457. 
arrangement  of  business,  91. 
revenue  side  of,  unaffected  by  the  Act,  500,  6S3. 
apphcation  to  be  made  at  chambers,  669. 

EXECUTION, 

judgment  and,  399,  638. 

right  to  immediate,  401. 

writ  of,  640. 

how  enforced,  638. 

of  judgment  against  partners,  640. 

within  six  years  from  judgment,  643. 

existing  rights  of,  unaffected,  644. 

"issuing  execution,"  meaning  of,  639. 

relief  subject  to  conditions,  order  for,  639. 

of  judgment  against  partners,  640. 

indorsement  of  writ,  with  name  of  solicitor,  641. 

indorsement  with  amount  to  be  levied,  642. 

poundage,  fees,  and  expenses,  641. 

renewal  of  writ  of,  643. 

writ,  how  long  in  force,  643. 

EXECUTORS, 

actions  by  and  against,  537. 

claims  by  and  against  when  to  be  joined,  54S. 

title  denied,  553. 

statement  of  character  in  writ,  698. 

represent  the  estate,  537. 

joinder  of  actions,  548. 

by  severing  a  legacy  from  the  estate  constitutes  himself  a  trustee,  236, 

of  a  joint  debtor  may  be  sued  together  with  surviving  debtor,  331. 

EXPERIMENTS, 

inspection  and  samples  for  purpose,  663. 

EXPRESS  TRUSTS, 

statutes  of  limitations  do  not  apply  to,  231,  452. 

what  are,  234. 

personal  representatives  of  express  trustees,  232. 

EXTRAORDINARY  COUNCIL  OF  JUDGES, 

may  be  convened  at  any  time  by  the  Chancellor,  58.  475. 

EXTRAORDINARY  DUTIES, 
of  judges,  saved,  112,  442. 

FACTS, 

power  of  single  judge  to  try  matters  of,  and  law,   156,  455. 
material  facts  and  not  evidences  to  be  pleaded,  381, 
assessment  of  damages  and  trial  of,  in  Chancery  Division,  463. 


803 


FACTS — continued. 

right  to  have  questions  of,  tried  by  jury,  6il). 

findings  of,  to  be  entered  by  registrar,  625. 

evidence  by  affidavit  of  particular,  627. 

affidavits  confined  to,  known,  628. 

allegations  of  denial  must  be  direct,  557. 

allegations  not  denied  admitted,  554. 

defendant  may  disclose,  entitling  him  to  defend,  532. 

in  counter  claim,  553. 

material  to  case,  interrogatories  on,  600. 

pleading  material,  551. 

admission  of,  612. 

costs  for  unnecessary  denial  of,  565. 

FEES, 

to  be  regulated  by  rules  of  Court,  471. 
fixing  and  collecting,  in  Supreme  Court,  490. 
poundage,  and  expenses  of  execution,  641. 
in  pauper  suits,  761. 

FIDUCIARY  RELATIONS, 

other  than  those  acting  under  an  express  trust,  238,  509. 

FIERI  FACIAS, 

writ  of,  645. 
form  of,  748,  751. 

FILING, 

copy  of  the  writ  of  summons  to  be  filed  and  nuinhered,  35S. 

copy  of  notice  of  appeal,  413. 

of  copies  of  pleadings  within  two  days,  560. 

documents  in  default  of  appearance,  589. 

FINAL  APPEAL, 

to  House  of  Lords,  44,  425,  493. 

FINAL  JUDGMENTS, 

in  default  of  appearance  on  specially  endorsed  writ,  526. 
summary  application  for,  after  appearance,  529. 
as  to  part,  and  interlocutory  as  to  rest,  585. 

FIRM, 

disclosure  as  to  names  of,  512. 
appearance  by,  523. 

partners  to  sue  and  be  sued  in  name  of,  540. 
sueing  a,  540. 

FOLIOS, 

in  schedule  of  fees,  762. 

FORECLOSURE  OF  MORTGAGES, 
relief  of,  38. 

assigned  to  Chancery  Division,  169. 
form  of  endorsement  for,  689. 
of  pleadings,  726. 

FORFEITURE, 

relief  against,  278. 

FORM  OF  ACTION, 

to  be  regulated  by  rules  of  Court,  58. 

2  N  2 


804  INDEX. 

FORMA  PAUPERIS, 

fees  in  respect,  761. 

FORMS, 

of  notice  to  produce  documents,  609. 

of  affidavit  on  application  for  order  for  discovery,  607, 

FORUM, 

collision  of  the,  23. 
competition  of  the,  20. 
insufficiency  of  the,  21. 
uncertainty  of  the,   16. 

FRAUD, 

must  be  specially  pleaded  in  deeds,  330,  555. 

and  malice  how  alleged,  558. 

statute  of,  must  be  pleaded,  556. 

action  for  misrepresentation  pleadings,  732. 

FURTHER  CONSIDERATION, 
adjourning  trial  for,  625. 
trial,  or  account,  636. 

FURTHER  STATEMENT  OF  CLAIM, 
and  particulars,  564. 

FUSION  OF  LAW  AND  EQUITY, 
popular  idea  of,  33. 

FUTURE  ACTIONS, 

binding  the  parties  in,  205. 

GARNISHEE, 

equitable  debts  may  be  attached  under,  order,  327. 
order  to  attach  debt  of,  647. 
who  may  be,  648. 

GENERAL  DENIAL, 

not  permitted,  388,  551. 

GENERAL  ISSUE, 
abolished,  388. 
except  not  guilty  by  statute,  388,  554. 

GAOL  DELIVERY, 

commissions  not  affected,  489. 

GOOD  FRIDAY, 

not  counted  in  limited  time,  673. 

GOODS,  DETENTION  OF, 
order  for,  663. 

GREAT  SEAL, 

in  commission,  84,  490. 

jurisdiction  under,  not  transferred,  446. 

GUARANTEE, 

notice  to  guarantor,  or  co-guarantor  to  defend  action,  542. 
special  indorsement  on,  action,  694. 
form  of  pleadings  on,  734. 


805 


GUARDIANS, 

by  nature,  305. 

for  nurture,  306. 

by  testament,  308. 

by  election,  310. 

of  illegitimate,  310. 

appointed  by  Chancery,  31 1. 

to  be  appointed  at  the  discretion  of  the  Judge,  31 1. 

effect  of  contracts  and  acquiescence  of,  318. 

concurring  in  special  case  for  infant,  616. 

appointing  special,  for  special  case,  676. 

ad  litem  appointed,  525. 

GUILTY,  NOT  BY  STATUTE, 
defence  of,  restored,  388,  55I' 

HEARSAY  EVIDENCE, 

excluded  from  affidavits,  628. 

HIGH  COURT  OF  ADMIRALTY— j^^  Court  of  Admiralty. 

HIGH  COURT  OF  JUSTICE, 
constitution  of,  435,  445. 

only  sits  as  a  single  Court  to  hear  Crown  cases  reserved,  36. 
jurisdiction  of,  56,  106,  345,  445. 
Lord  Chancellor  president  of,  82,  436. 
judges  of,  81,  435. 
permanent  number  of  judges  of,  82. 
divided  into  five  divisions,  87,  457. 
jurisdiction  not  transferred  to,  1 13,  446. 
appeals  from,  to  H.M.  Court  of  Appeal,  158,  447. 

HIGHER  SCALE, 
Court  fees,  749. 

HIRE, 

form  of  claim  for  negligence,  693. 

HOLIDAYS, 

when  time  expires  on,  it  is  extended,  674,  680. 

HOUSE  OF  COMMONS, 

judges  not  to  sit  in,  441. 

HOUSE  OF  LORDS, 

final  appeal  through  H.  M.  Court  of  Appeal,  44,  493. 
writs  of  error  to,  154,  160,  473. 

HUSBAND  AND  WIFE, 

concurring  in  special  cases,  616. 

claims,  by  and  against,  may  be  joined  with,  54S. 

other  claims,  548. 

IDIOTS— Jt'd-  Lunatics. 

INCIDENTAL  EQUITIES, 

Court  may  recognize,  211,  450. 


800  INDEX. 

INDEMNITY, 

notice  of  claim  for,  542. 

INDORSEMENT, 

of  claim  on  writ  of  summons,  357,  504. 

for  form — see  Appendix,  6S9. 

not  essential  to  set  forth  precise  ground  of  complaint,  505. 

special,  for  liquidated  demand,  506. 

of  address,  508. 

of  time  of  service,  515. 

of  name  and  abode  of  solicitor  on  writ  of  execution,  641. 

of  amount  really  due  and  interest  on  writ  of  execution,  642. 

INFANT, 

consent  of  guardians  of,  to  have  evidence  taken  by  affidavit,  339. 

rules  of  equity  to  prevail,  as  to,  454. 

concurrence  of,  in  special  case  through  guardian,  616. 

leave  to  set  down  special  case  for  argument,  617. 

default  of  appearance,  525. 

actions  by  and  against,  538. 

wardship  of,  and  care  of  their  estates  assigned  to  Chancery  Division, 

38.  172- 

custody  and  education  of  rules  of  equity  to  prevail,   51,  305,  321. 

jurisdiction  of  Master  in  Chancery  to  execute  deeds  for,  no. 

trustee,  124. 

how,  becomes  ward  of  Court,  172. 

several  kinds  of  guardians,  305. 

responsible,  when,  307. 

power  of,  to  elect  guardians  a  place  of  residence,  309. 

illegitimate,  310,  312. 

guardians  appointed  by  Chancery,  31 1. 

mother's  right  of  access,  31 1. 

guardianship  of,  at  the  discretion  of  the  judge,  311. 

religious  education,  316. 

powers  of  a  Court  of  Equity  as  to  the  religion  of,  317- 

effect  of  contracts  and  acquiescence  of  guardians  of,  31S. 

conditions  on  which  the  Court  will  interfere,  322. 

INFERIOR  COURTS, 

rules  of  law  to  apply  to,  488. 

prohibition  to, 

remitter  of  actions  to,  682. 

INFORMATION, 

how  to  be  instituted,  501. 

name  of  Attorney-General  used,  535. 

INFRINGEMENT, 

of  certain  legal  rights,  unassigned,  38. 
of  right  of  way,  696. 
of  pasture,  696. 
sporting,  696. 
patents,  696. 

INJUNCTIONS, 

by  Probate  Division,  31. 

where  formerly  granted,  matter  may  be  relied  on  as  a  defence,   32, 
213,  216,  450. 


INDEX.  80^ 

INJ  U  NCTlO'tiS— continued. 

not  by  one  division  against  another,  l8o,  214. 

exceptions  to  this  provision,  214. 

from  bankruptcy,  215. 

by  High  Court  in  England,  216. 

stay  of  proceedings,  by  way  of,  219. 

may  be  granted  at  any  stage  of  the  proceedings,  2S1,  453. 

under  the  Common  Law  Procedure  Act,  284. 

mandatory,  285. 

under  the  Judicature  Act,  287,  453. 

against  waste  or  trespass,  288. 

in  protection  of  legal  rights,  292. 

application  for,  293. 

application  for,  by  defendant,  294. 

not  against  third  persons,  294. 

order  for  an,  made  on  terms,  295,  453- 

married  women  may  sue  for,  in  cases  of  separate  estate,  336. 

indorsement  of  claim  in  actions  for,  358,  505. 

form  of,  697. 

INJURIES  TO  PROPERTY, 

interlocutory  orders  as  to,  662. 

INNKEEPER, 

form  of  indorsement  of  claim,  697. 

INQUIRIES  AND  ACCOUNTS, 

may  be  ordered  at  any  stage  of  the  proceedings,  613. 

INSOLVENT, 

administration  of  estates,  5I)  228,  451. 

INSPECTION, 

documents,  inspection  of,  604. 

liability  of  party  not  complying  with  order,  610. 

issues,  or  questions  decided  preliminary  to  order,  610. 

notice  of  willingness  to  allow,  609. 

enforcing,  609. 

order  for,  of  premises,  663. 

and  discovery,  593. 

INSUFFICIENT     ASSETS     OR    ESTATE— j-^r    Administrator    and 

Winding-up. 
INTEREST, 

rate  of,  330. 

indorsement  of  amount  of,  due  on  writ  of  execution,  142. 

INTERIM  ORDERS, 

for  preservation  of  property,  662. 

INTERLOCUTORY  JUDGMENT, 
for  damages,  584. 

INTERLOCUTORY  ORDERS, 

unappealed  from,  not  to  affect  appeal  from  final  order,  422. 

notice  of  appeal  from,  411. 

as  to  injunctions  or  interim  preservation  of  property,  662. 

INTERLOCUTORY  STEPS 

to  be  taken  in  the  Division  to  which  the  cause  is  attached,  460, 


808  INDEX. 

INTERPLEAD, 

trastees  and  debtors  (in  cases  of  choses  in  action)  may  require,  259. 
271,453- 

INTERPLEADER, 

counterclaim  by  way  of,  204. 

binding  parties  in  future  actions  by  way  of,  209. 

continued  and  extended,  426. 

INTERPRETATION  CLAUSES 

of  Supreme  Court  of  Judicature  Act  (Ireland)  1877,  432,  683. 
of  orders,  683. 

INTERROGATORIES, 

rules  of  equity  to  prevail  as  to,  329. 

examination  by,  at  any  time,  396. 

to  disprove  opponent's  case,  601 

time  to  answer  by  affidavit,  603. 

objection  taken  to  answering  by  affidavit,  603. 

order  to  answer  or  answer  further,  604. 

liability  of  party  failing  to  answer,  610. 

using  answers  to,  612. 

time  for  delivery  of,  593. 

at  discretion  of  parties,  594. 

only  one  set  by  each  party,  597. 

costs  and  forms  of,  597. 

striking  out,  application  for,  598. 

IRREGULARITY, 

how  dealt  with,  679. 

ISSUE  GENERAL, 
abolished,  388. 
exception,  not  guilty  of  statutes,  554. 

ISSUES, 

power  of  single  Judge  to  try,  of  fact  and  law,  156. 

application  to  Judge  to  settle,  377,  38S,  571,  551. 

right  to  have,  left  to  Jury  with  proper  directions,  395,  466. 

as  far  as  possible  to  be  tried  in  place  where  cause  of  action  arises, 

391,  456 
on  questions  to  be  tried  preliminary  to  order  for  inspection,  610 
setting  down  on  motion  for  judgment  of,  635. 
joinder  of,  to  close  pleadings,  571. 

ISSUING, 

sealing  and  writ  of  summons,  35S,  509. 
execution,  meaning  of,  639. 

JOINDER, 

of  causes  of  action,  30,  225,  535,  546.      '' 
of  rent  with  ejectment,  547. 
of  several  claims,  548. 
of  issue,  556,  571. 

JOINDER  OF  PARTIES, 

defendants  need  not  be  interested  in  all  the  relief,  536. 

of  defendants  jointly  and  severally,  536. 

of  defendants  in  case  of  doubt,  536. 

of  parties,  amendment  of  statement  of  claim,  542. 


INDEX.  809 

JUDGE  OF  COURT  OF  PROBATE, 

on  next  vacancy  in  office  of,  Admiralty  causes  to  be  transferred,  439 

JUDGE  OF  THE  (HIGH)  COURT  OF   ADMIRALTY, 
the  existing,  unaffected,  438. 
appeals  from,  to  Court  of  Appeal,  438. 
no  successor  to  existing,  438. 
jurisdiction  to  be  vested  in  a  judge  of  High  Court,  438. 

JUDGES  OF  THE  COURT  OF  APPEAL  {also  j-^t- Justices  of  Appeal), 
may  act  as  judges  of  High  Court,  87,  104,  469. 
ordinary,  may  be  included  in  commissions  of  assizes,  &c.,  96,  103,  463. 
ex-qfficw,  loi,  439. 
ordinary,  loi,  439. 
additional,  loi,  439. 
authority  of,  102,  440. 
vacancies  in  the  offices  of,  103,  440. 
qualifications  and  disabilities  of,  103. 
precedence  of,  103. 

no  judge  to  sit  on  appeal  from  his  own  order,   104,  469. 
number  of  judges  to  constitute  a  Court  of  Appeal,  161,  469. 
jurisdiction  of  single  judge,  161,  469. 
interim  orders  in  vacation,  161. 

JUDGES  OF  THE  HIGH  COURT  OF  JUSTICE, 

Judges    of  Chancery   Division  have  power    to   recall  or  set   aside 

probate,  29. 
rights  and  patronage  how  far  preserved,  74,  83,  94,  96,   441. 
style  and  authority  of,  82,  85,  436. 
obligations  of  existing  and  future,  83,  91,  93,  441. 
appointment  of  chief,  85,  435. 
other,  85,  435. 
qualification  to  be,  86,  440. 
oaths  of  office,  86,  441. 
tenure  of  office,  86,  441. 
incapacities  of,  86,  441. 
precedence  of,  86,  103,  441. 
salaries  and  pensions  of,  86,  443. 
office  of,  vacated  by  resignation,  86,  440. 
distribution  of,  to  Divisions,  87. 
transfer  of,  from  one  Division  to  another,  89,  458. 
for  ordinary  commissions  and  sittings  at  Nisi  Prius,  95. 
for  Nisi  Prius  sittings  in  Dublin,  99. 
to  sit  in  vacation,  99,  680. 
rota  for  election  petitions,  100,  464. 
power  of  a  single,  108,    155,  175,  464. 
land  judges  to  assist  in  Chancery  business,  144,  437. 
land  judges,  144,  436. 
vacancies  not  to  be  filled,  436. 
Land  Judges  to  exercise  former  jurisdiction,  436. 
going  on  Assizes,  442. 

extraordinary  duties  of  Judges  of  former  Courts,  442. 
allowance  for  Circuit,  443. 
pensions  of  future,  444. 
going  winter  Assize,  444. 
salaries  and  pensions  how  paid,  444. 
number  of,  457. 
future  vacancies,  458. 

2  N  3 


810  INDEX. 

JUDGES  OF  THE  HIGH  COURT  OF  ] U STICE— consumed. 
junior,  of  Queen's  Bench  to  assist  in  Common  Pleas,  460. 
single  Judge  to  dispose  of  business  in  Chancery  and  Probate  Divi- 
sions, 465. 
Council  of,  55,  57,  474. 

JUDGMENT, 

pending  causes  fully  heard  but  not  perfected,  343,  447. 

perfected,  but  not  executed,  344,  448. 

signing,  in  default  of  appearance,  365,  366. 

summary,  after  ajipearance,  366. 

in  default  of  defence,  376. 

order  for,  396,  399. 

and  execution,  399,  638. 

motion  for,  399,  638. 

entering,  reserving  leave  to  move  to  set  it  aside,  400,  625,  634. 

motion  to  set  aside,  400. 

how  enforced,  400. 

for  recovery  of  land,  401. 

orders  enforced  as,  401. 

appeal  from  whole  or  part  of,  408. 

power  of  Court  of  Appeal  to  give  full  and  proper,  420. 

by  default  set  aside,  624. 

judge  may  direct,  to  be  entered,  625. 

immediate  on  registrar's  certificate,  625,  638. 

when  no  direction,  plaintiff  may  set  down  action  for,  634. 

entered  motion  to  set  aside,  635. 

motion  to  set  aside,  after  partial  trial,  635. 

entry  and  date  of,  637. 

of  nonsuit,  effect  of,  638. 

execution  of,  against  partners,  640. 

creditors,  647. 

interlocutory  for  damages,  584. 

on  specially  indorsed  writ  in  default  of  appearance,  526. 

final,  after  appearance,  529. 

for  part,  532. 

as  to  one  of  several  defendants,  533,  5^4)  5^5- 

for  defendant  on  counter  claim,  567- 

by  default,  affidavit  of  sum  due,  584. 

final  as  to  part,  interlocutory  as  to  rest,  585. 

setting  aside  on  terms,  588. 

JUDICATURE  ACT,  1877, 

how  far  retrospective,  341. 

JUDICATURES, 

consolidation  of,  not  of  Jurisdictions,  34. 

JURIES, 

law  as  to  unaffected,  473. 

JURISDICTION, 

modern  enlargement  of,  24. 
one  Court  of  universal,  26. 
of  High  Court,    106,  445. 
of  Court  of  Appeal,  158,  446. 
analogous  to  that  in  lunacy,  118. 
of  single  judges,   108,  155. 
service  of  writ  out  of,  362,  456,   504. 
Statutory,  transferred,  475. 


INDEX.  811 

JUROR, 

precept  for,  671. 
qualified  to  act,  671. 

JURY, 

law  relating  to,  and  jurymen  unaffected,  60. 

right  to  have  issues  left  to,  with  proper  directions,  395,  466. 

also  see  Trial  with  Jury. 

JUS.  ACCERESENDI, 

rule  of  equity  to  prevail,  331. 

JUSTICES  OF  APPEAL, 

two  ordinary  judges  of  the  Court  of  Appeal  to  be  styled,  lOl. 

also  the  additional  judges  consisting  of  ex-judges,  loi. 

the  existing   Lord  Justice   of  Appeal  in   Chancery,  first  ordinary 

judge,  loi. 
the  Lord  Justice  retains  all  his  privileges,  lOl. 

LACHES, 

doctrine  of,  239. 

LAND,  ACTIONS  CONCERNING 

service  of  writ  generally,  361,  514. 

of  writ  out  of  jurisdiction  for,  and  stock,  518. 

appearances  to  summons  for  recovery  of,  365,  522,  524. 

appearance  by  lease,  365,  522,  524. 

defendant  may  limit  his  defence,  524. 

as  landlord,  365,  522. 

default  of  appearance  in,  actions,  527,  585. 

no  appearance  in  actions,  after  time  limited,  526. 

form  of  pleading  in  action,  738. 

default  of  pleading,  586. 

form  of  pleading  in  action  for,  735- 

joinder  of  other  actions  with,  518. 

judgment  enforced,  638. 

writ  of  possession  for,  401,  514. 

cases,  assigned  to  Chancery  Division,  461. 

action  of  trespass,  to  form  of  pleadings,  742. 

when  mortgagor  may  bring,  253. 

LAND  CASES  RESERVED— j^^  Court  for  Land  Cases  Reserved. 

LANDED  ESTATES  COURT, 

jurisdiction  (including  control  of  the  Record  of  Title  Office)  trans- 
ferred to  High  Court,  106. 

judges  of,  transferred  to  Chancery  Division,  143,  437. 

jurisdiction  of,  143. 

land  judges  to  assist  in  chancery  business,  144,  437. 

jurisdiction  of  land  judges,  144,  436. 

rules  and  orders  of,  retained  (subject  to  alterations),  144,  437. 

separate  seal  of,  144,  437. 

title  given  by  the,  absolute,  145. 

auxiliary  to  other  courts,  145. 

bound  to  determine  incidental  controversies,  146,  461. 

procedure  in,  to  be  settled  by  rules  of  Court,  147,  462. 

binding  parties,  147,  462. 

judges  to  take  account  and  administer  assets,  147,  462, 

appeals  from,  to  Court  of  Appeal,  149. 

all  business  in,  transferred  to  Land  Judges  of  Chancery  Division,  165. 

all  future  business  respecting,  to  be  addressed  to  the  land  judges, 
166,  461. 


812  INDEX. 

LAND  JUDGES, 

jurisdiction  of,  II2,  144,  146,  147,436. 

transferred  to  Chancery  Division,  143,  437. 

junior  to  transact  Receiver  Master's  duties,  III,  14S. 

appeals  from,  to  Court  of  Appeal,  149. 

proceedings  before  as  to  receivers,  461. 

application  to  extend  receiver,  462. 

proceedings  before  unaffected  by  the  Act,  500,  683. 

LANDLORD, 

appearance  of,  to  defend  action  for  recovery  of  land,  522. 

LAW, 

inferences  of,  396. 

questions  of  special  case,  611. 

presumptions  of,  not  to  be  pleaded,  559. 

LAW  AND  EQUITY, 
fusion  of,  33. 

concurrent  administration  of,  33,  184,  449. 
rules  for,  34. 

LEAVE, 

to  serve  out  of  jurisdiction,  504. 

to  defend  where  writ  specially  endorsed,  529. 

to  defend  actions  for  recovery  of  land,  365,  524,  526. 

LEGAL  AND  EQUITABLE  CLAIMS, 

must  be  considered,  if  properly  brought  forward,    27,  222,'223. 

LEGAL  RIGHTS, 

Court  to  give  effect  to,  222. 

LEGATEE, 

action  to  administer  assets,  689. 

LETTERS, 

contracts  arising  out  of,  how  pleaded,  558. 

LETTERS  PATENT, 

jurisdiction  as  to  unassigned,  38, 
injunctions  in  actions  for  infringement,  284. 

LIABILITIES, 

and  debts  what  are,  230. 

LIABILITY, 

of  party  not  answering  interrogatories,  610. 

of  solicitor  not  apprising  client  of  order  to  inspect,  612. 

LIBEL, 

discovery  as  to,  602. 

LIEN, 

equitable  rules  will  not  apply  to  legal    estates  acquired  by  direct 

devise,  331. 
sale  of  estates  for,  transferred  to  Chancery  Division,  170. 
attachment  of  debts,  when,  or  charge  is  set  up,  650. 
disposal  of,  or  charge,  650. 
payment  into  Court  of  amount  of,  claimed,  665- 


INDEX.  813 

LIGHT, 

action  for  obstruction  of,  696. 

LIMITATIONS,   STATUTE  OF 

inapplicable  to  express  trusts,  51,  235,  452. 

not  to  bar  action  where  renewed  writ  is  allowed,  513- 

when  relied  on,  must  be  pleaded,  555. 

LIMITED  DEFENCE, 
to  ejectments,  524. 

LIQUIDATED  CLAIM, 

not  indorsed,  affidavit  of  particulars,  526. 
default  of  defence,  586. 

LIQUIDATED  DAMAGES, 

what  is  a  penalty  and  what,  276. 
and  option  of  party,  279. 

LIQUIDATION, 

time  for  appeals  in  cases  of,  677. 

LOCAL  GOVERNMENT  BOARD, 

Audit  of  Public  Accounts  transferred  to,  III,  4S5. 
jurisdiction  of  Receiver  Master  may  be  transferred,  4S6. 

LOCAL  VENUE— jf^  Venue. 

LONG  VACATION, 
how  fixed,  41. 

no  pleading  to  be  delivered  in,  674. 
duration  of,  680. 

LORD  CHANCELLOR— j-:ff  Chancellor. 

LORD  CHIEF  JUSTICE— Scv  Chief  Justice. 

LORDS  COMMISSIONERS— Jt-^  Commissioners. 

LORDS,  HOUSE  OF, 

appeal  to  from  Court  of  Appeal,  44,,  493. 
writ  of  error  to,  473. 
see  House  of  Lords. 

LORDS  JUSTICE  OF  APPEAL  IN  CHANCERY. 

one  of  first  ordinary  Judges  of  Court  of  Appeal,  lOl,  439. 
rank,  title,  &c.,  remain  as  if  Act  had  not  passed,  441. 

LUNACY, 

the,  jurisdiction,  115, 

common  law  jurisdiction  of  Lord  Chancellor,  II7' 

appeals  from  Lord  Chancellor,  1 1 7. 

jurisdiction  of  common  law  analogous  to  that  in,  1 1 8. 

statutory  jurisdiction  of  the  Lord  Chancellor,  120. 

divesting  estates  of  lunatic  trustees  in  Chancery,  124. 

trustees  in,  126. 

divesting  of  estates  in  lands  of  lunatic  trustees  by  Lord  Chancellor, 

127. 
appointing  persons  to  convey  (in  case  of  lunatic  trustees)  127. 
divesting  of  stock  or  choses  in  action  do.  127. 


814  INDEX. 

LU  NACY—con/ifiued. 

appointing  of  trustees  of  personalty,  131. 

territorial  limits  of  the  powers  of  Chancery,  &c.,  131. 

power  vested  in  Lord  Chancellor  may  be  exercised  by  Committee, 

appointing  receivers  m,  485. 

committee  may  concur  in  special  case,  615. 

default  of  appearance,  525. 

actions  by  and  against  lunatics,  549. 

MALICE, 

and  fraud  how  alleged,  558. 

MANDAMUS, 

injunction  and  receiver,  281. 

prerogative,  282. 

statutory  action  of,  282. 

under  the  Judicature  Act,  283.  453. 

hidorsement  of  claim  on  writ,  505. 

form  of,  697. 

MARKING, 

the  name  of  division  on  the  writ,  40,  176. 

MARRIAGE, 

rectification  of  settlements,  170. 
no  abatement  to  action,  654. 

MARRIED  WOMEN, 

separate  estate,  335. 

actions  by  and  against,  53S. 

appearance  of,  365. 

leave  to  set  down  special  cases,  617. 

joinder  of  actions  by  and  against,  54S. 

MASTER, 

jurisdiction  of,  in  Chancery  transferred  to  High  Court,  108. 
power  of,  to  execute  deeds,  109. 

MASTER  OF  THE  ROLLS, 

ex-officio  Judge  of  Court  of  Appeal,  lOi. 

jurisdiction  of,  IIO,  142. 

invested  with  the  authority  of  Masters  in  Chancery,  no. 

duty,  authority,  and  power  generally  unaltered,  113. 

the  record  jurisdiction  of,    1 14. 

common  law  jurisdiction  of,  142. 

MASTERS, 

attached  to  Supreme  Court,  476,  477. 
duties  regulated  by  rules,  477. 
receiver  Master,  483. 

MATTERS, 

in  Chancery,  Receiver  Master's  office,  III. 
to  be  pleaded,  380. 


815 


MEADOW, 

ancient,  how  character  acquired,  241. 

MEMORANDUM, 

of  appearance,  523. 
form  of,  688. 

MERGER, 

and  extinguishment  of  estates,  247. 

no,  now  by  operation  of  law  only,  247,  250,  45-- 

of  estates  at  law,  and  in  equity,  248. 

of  estates  legal  or  equitable,   250. 

as  to,  of  charges  on  an  estate,  252. 

MESNE  PROFITS, 

indorsement  of  claim,  697. 

form  of  pleadings  in  action  for,  73^- 

and  land,  default  of  appearance,  528. 

MISDIRECTION, 

new  trial  not  granted  for,  398,  499. 
unless  substantial  miscarriage,  398,  499. 

MISJOINDER, 

no  action  to  be  defeated  by,  c!"  parties,  367. 
see  Parties. 

MISTAKE, 

in  law,  333. 

in  case  of  mistake  of  Division,  action  to  be  transferred,  28, 

in  written  agreements,   332. 

MODE  OF  TRIAL, 

different,  392,  620. 

judge  may  order  different  times  and,  392,  620. 

MONEY  DEMAND, 

pleading  payment  into  Court,  388,  390. 

MONTHS, 

unless  expressed  to  be  lunar,  mean  calendar,  673. 

MORTGAGE, 

claim  for  payment  combined  with  claim  for  possession,  30.  _ 
redemption  or  foreclosure  actions  assigned  to  Chanceiy  Division,  38. 
accounts  in  redemption  and  foreclosure  of,  169. 
form  of  claim  for,  689. 

MORTGAGEE, 

divesting  of  stock  and  choses  in  action  of  lunatic  trustees,  <S:c,,    127, 

position  of,  in  law  and  equity,  254. 

receiver  appointed  against,  in  possession,  298. 

cost  of  trustees  and,  unaltered,  403,  468. 

MORTGAGOR, 

possessory  suit  by,  253,  452. 

position  of,  at  law,  254. 

statutory  powers  conferred  (by  this  Act),  256,  452. 

exceptions  to  these  powers,  257. 

termination  of  the  power,  by  notice  from  mortgagee,  258. 

form  of  claim  for  redemption,  689. 


816  INDEX. 

MOTIONS, 

for  new  trials  and  arrest  of  judgment,  or  to  enter  a  nonsuit,  90,  92,  467, 

633. 
for  judgment  in  default  of  defence,  376. 
for  judgment,  399,  633,  586. 
to  set  aside  judgment,  400,  635. 
notice  of,  of  appeal,  41 1, 
evidence  on,  how  taken,  627. 
none*  to  set  aside  judgment  after  a  year,  635. 
for  judgment  after  partial  trial,  635. 
and  other  applications,  665. 
notice  of,  to  be  given,  665. 
for  final  judgment  on  writ  specially  indorsed,  530. 

MULTIFARIOUSNESS 
in  pleading,  547. 

MULTIPLICITY 

of  legal  proceedings  to  be  avoided,  27,  224,  369. 

NE  EXEAT  REGNO, 
writ  of,  142. 

NEGLIGENCE, 

form  of  pleadings  in  action,  736. 

NEW  ASSIGNMENT. 

none  now  necessary  or  permitted,  553. 

NEW  PARTIES, 

may  be  added  to  actions,  369. 

new  defendant  served  with^amended, 

writ,  542. 

NEW  TRIAL, 

motions  for,  90,  92,  633. 

application  for,  to  Divisional  Courts,  397,  467. 

for  admission  or  rejection  of  evidence,  when  granted,  39S,  631.. 

as  to  part,  without  disturbing  rest,  398. 

time  for  service  of  order  for,  633. 

order  for,  stay  of  proceedings,  6^^. 

NEXT  FRIEND, 

or  plaintiff  not  added,  without  his  consent,  370. 

NISI  PRIUS, 

the  Judge  at,  constitutes  a  Court,  156. 
jurisdiction  of  Courts  of,  154,156. 
clerks  of  Assize  and,  487. 
sittings  in  Dublin,  671. 

NON-COMPLIANCE 

with  rules,  effect  of,  679. 

NON-SUIT, 

motion  for  entry  of,  to  Divisional  Court,  90,  92,  467. 

NOT  GUILTY  BY  STATUTE, 
plea  of,  restored,  38S,  554. 


INDEX.  81'i 

NOTICE  OFFICE, 

consolidation  of  offices,  68. 

NOTICE, 

in  lieu  of  service  of  writ,  361,  687. 

of  appearance,  523. 

to  parties  added  to  action,  373. 

to  third  persons  liable  to  contribute,  205,  542. 

form  of,  699. 

of  trial,  392,  394,  620. 

of  application  to  direct  mode  and  place  for  trial,  393,  620. 

of  trial  by  defendant,  394,  629. 

form  of  notice  of  trial,  706. 

appeal  by  way  of,  411. 

service  of,  of  motion,  by  way  of  appeal,  41 1. 

to  officer  on  assigning  action  to  Division,  510. 

in  lieu  of  statement  of  claim  when  writ  specially  indorsed,  563 

of  discontinuance  of  action,  568. 

of  service,  copy  to  be  left,  588. 

notices  and  documents,  originals  to  be  filed,  589. 

how  alleged  in  pleading,  558. 

to  produce  documents,  609. 

admitting  claim,  612. 

to  admit  documents,  613. 

to  dismiss  action,  621. 

to  cross-examine  deponent,  630. 

of  motion,  665. 

interval  of  time  between,  and  motion,  666. 

in  writing  or  in  print,  672. 

of  respondent  for  cross  appeal  not  necessary,  676. 

of  entry  of  demurrer  for  argument,  580. 

of  payment  into  Court  and  of  acceptance,  591. 

forms  of,  701. 

of  future  claims,  205. 

to  quit,  by  mortgagor  in  his  own  name,  257. 

to  person  chargeable,  of  assignment  of  choses  in  action,  265. 

assignments  effectual  from  date  of  service  of,  269. 

aliunde  to  subsequent  assignee,  269. 

of  application  for  mandamus  and  injunctions,  393. 

NUISANCE, 

order  for  inspection  of,  663. 
form  of  claim  for,  696. 

NUMBERS, 

to  be  expressed  in  figures,  387. 

OATHS, 

Commissioners  to  administer  oaths,  without  limit  of  place,  78,  483. 
what  to  be  taken  by  judges,  441. 

OFFICE, 

consolidation  of  certain,  68,  478. 
future  vacancies  in,  74,  481. 

OFFICERS, 

transfer  of  existing  staff  to  Court  of  Judicature,  65,  476. 
rank  and  position  of,  transferred,  retained,  65,  476. 
how  attached  to  Divisions,  66,  477. 


818  INDEX. 

OFFICERS  —continued. 

personal,  of  Judges,  67,  76,  78,  477. 

transfer  of,  from  Divisions,  67,  478. 

duty  of,  to  be  settled  by  rules  of  Court,  59,  471. 

Avhose  duties  are  not  provided  for,  69,  478. 

Lord  Chancellor  may  alter  duties  and  designations  of  certain,  69. 

Appeal  Court,  70. 

retirement  of,  72. 

consent  of  existing,  73,  479- 

compensation  for  loss  of  rights,  &c.,  of  existing,  73,  479. 

increase  of  salary,  with  duty,  73,  479. 

reorganization  of  official  staff,  73,  480. 

distribution  of  business  among,  477. 

junior  clerkships  filled  by  open  competition,  75,  481. 

appointment  of  divisional  officers,  75,  481. 

removal  of,  76,  482. 

authority  over,  hovi'  exercised,  77>  4^2- 

salary  of,  appointed  under  the  Act,  77,  4S7. 

entitled  to  pensions,  77- 

solicitors,  of  the  Court  of  Judicature,  78,  488. 

in  Receiver  Master's  office,  80,  486. 

to  assist  Local  Government  Board,  81. 
succession  of,  in  Chancery,  Registrars',  and  Law  Court  Offices,  66, 

476. 
analogous  duties  of,  69.  479. 

appointment  of  general  officers,  by  the  Lord  Chancellor,  76,  4S2. 
in  Lunacy  Department,  attached  to  Lord  Chancellor,  84,  117. 
of  circuit,  94. 

compensation  exceeding  limit  of  Superannuation  Act,  480. 
appointment  to  Chancery  Division,  481. 
officers  power  to  appoint,  repealed,  482. 
qualification  to  be,  preserved,  482. 
approval  of  Lord  Lieutenant  to  certain,  482. 
release  of,  on  compensation,  scale  of,  479- 
"  proper  officer,"  meaning  of,  683. 

OFFICES, 

open  when,  680. 

OPTION, 

of  plaintiff  to  choose  his  division,  40,  165,  176,460. 

of  plaintiff  to  abandon  his  action  on  receiving  counterclaim,  348. 

ORAL  EXAMINATION 

of  witnesses,  evidence  by,  396,  627. 

ORDER, 

for  transfer  of  actions,  made  by  a  judge,  182, 

special,  for  new  procedure  in  pending  causes,  346,  352. 

summary,  for  relief  before  pleadings,  366. 

for  judgment,  396,  399,  644. 

enforced  as  judgment,  401. 

what,  subject  to  appeal,  404. 

no  appeal  from  consent  orders,  406,  468. 

as  to  costs  and  matters  of  discretion,  406. 

appeal  from,  made  in  chambers,  90,  407,  468. 

renewal,  513. 


\ 


INDEX.  819 

OKDY.R—coiiti/iued. 

to  answer  interrogatories,  or  to  answer  further,  604. 

for  production,  or  discovery  of  documents,  604. 

for  examination  of  deponent,  628. 

enforcing,  by  third  person,  644. 

to  bind  in  cases  of  change  of  parties  to  actions,  659. 

for  interim  custody  and  preservation  of  property,  662. 

for  sale  of  chattels,  663. 

not  to  apply  to  Court  of  Probate,  682. 

ORDERS  IN  COUNCIL, 
preliminary  rules,  58- 

ORDINARY  JUDGES  OF  APPEAL, 
sf^e  Judges  of  Court  of  Appeal. 

PAPER, 

for  pleadings,  affidavits,  &c.,  673. 

PARAGRAPH, 

distinct  claim  in  new,  552. 
numbering  of,  387. 

PAPERS— Jd-d'  Documents. 

PARLIAMENT, 

orders  and  rules  to  be  laid  before,  62,  472,  474. 

PART  PERFORMANCE, 

takes  the  case  out  of  the  statute  of  frauds,  335. 

PARTICULARS, 

affidavit  of,  when  liquidated  claim  not  indorsed,  526. 

PARTIES, 

to  be  regulated  by  rules  of  Court,  58. 

binding  the,  in  a  future  action,  205. 

relief  between  all  interested,  224,  450. 

joinder  of,  224,  367. 

joinder  of  new  in  pending  suits,  348. 

no  action  to  be  defeated  by  misjoinder  of,  367. 

may  be  added  at  any  time,  369. 

who  are  added  must  be  served  with  notice,  373. 

may  be  struck  out,  373. 

representative  of  numerous,  374. 

and  parties,  costs  may  include  solicitors  and  clients'  costs,  403. 

character  of  should  appear  in  indorsement,  505. 

change  of,  no  abatement  to  action,  654. 

PARTITION, 

and  sale  of  estates  assigned  to  Chancery  Division,  38,*l7i. 

PARTNERS, 

co-partners  may  sue  and  be  sued  in  the  name  of  their  firms,  334,  540. 

appearance  by,  523. 

execution  of  judgment  against,  640. 


820  IXDEX. 

PARTNERSHIP  ACTIONS, 

assigned  to  Chancery  Division,  38,  167. 

exceptions,  167. 
form  of  claim  in,  6S9. 
rules  of  equity  to  prevail,  334. 

PASTURE, 

infringement,  claim  for,  696. 

PATENTS, 

Also  see  Letters  Patent, 
unassigned  to  any  Division,  38. 
infringement  of  claim,  696. 

PAUPERS, 

old  rule  prevails  as  to  fees,  761. 

PAYMENT  INTO  COURT, 

and  out  of  court,  to  be  deemed  provisions  relating  to  practice  and 

procedure,  60. 
by  trustees  or  debtors,  259,  271,  453. 
pleading,  3S8,  590. 
when  defendant  may  make,  390. 
of  debt  and  costs,  stay  of  proceedings,  507. 
how  made,  591. 
form  of  notice,  696. 

PENALTIES, 

relief  against,  275. 

what  are  liquidated  damages  and  what  are,  276. 
are  questions  of  law  to  be  decided  by  the  judge,  277- 
imposed  by  statute,  280. 

PENDING  BUSINESS, 

in  old  suits  and  actions  transferred,  343. 

PENDING  CAUSES, 

causes  fully  heard,  but  judgment  not  perfected,  343,  447. 

judgments  perfected,  but  not  executed,  344,  448. 

in  error,  and  appeals  in  Appeal  Court,  344. 

other  proceedings  to  be  continued  and  concluded  in  High  Court,  344- 

jurisdiction  of  new  Courts,  to  deal  with  old  causes  transferred,  345. 

form  and  manner  of  procedure  as  to  old  causes,  345,  448. 

mode  of  continuance  of,  345»  44^- 

special  orders  for  new  procedure,  346,  352. 

when  the  defendant  desires  to  raise  a  counterclaim,  347. 

introduction  of  new  parties  in,  348. 

to  change  the  nature  of  the  action,  349. 

appeals  when  under  new  procedure,  349. 

in  Chancery  Division  in  England,  349. 

before  notice  of  motion  for  decree  or  replication,  350. 

setting  down,  hearing,  and  evidence,  350. 

after  notice  of  motion  for  decree  or  replication,  351. 

other  matters  than  causes,  35 1 . 

PERCENTAGE— j-^6-  Fees. 

PERPETUATION  OF  TESTIMONY, 

unassigned  to  any  division,  38,  173. 


INDEX.  821 

PERSONS  OF  UNSOUND  MIND, 

see  Lunacy. 

PERSONAL  REPRESENTATIVE, 

when  necessary,  360. 

in  actions  where  there  is  no,  541. 

PERSONAL  SERVICE, 

necessary  in  action  on  bills  of  exchange,  360,  503. 

PETITION, 

not  included  in  the  term  action,  354. 
evidence  on,  627. 

PETITION  OF  RIGHT, 

counter  claim  allowed  in  a  pending,  347. 

PETITIONS,  ELECTION, 

Judges  to  be  appointed  for  trial,  100. 

PLACE  OF  TRIAL, 

to  be  named  in  summons,  391,  456,  502,  617. 

issues  to  be  tried  in  place  where  cause  of  action  arises,  391,  456. 

PLAINTIFF, 

option  of,  to  choose  his  Division,  40,  176,  165,  460. 

misjoinder  of  plaintiffs,  367. 

joinder  of,  368,  534. 

adding  name  of,  where  allowed,  369. 

A,  or  next  friend  not  added  without  his  consent,  370. 

when,  is  bound  to  file  statement  of  claim,  370. 

should  name  county  or  place  of  trial,  391,  456,  502,  617. 

default  of  appearance  of,  at  trial,  395,  624. 

interpretation  of,  433. 

entitled  to  equitable  relief,  449. 

affidavit  of,  when  filed,  629. 

to  set  down  judgment  when  no  direction,  634. 

action  commenced  in  name  of  wrong,  533. 

may  confess  and  claim  costs,  562. 

may  apply  for  direction  when  third  party  served,  545. 

PLEADINGS, 

to  be  regulated  by  rules  of  Court,  58,  471. 

summary  relief  before,  366. 

statement  of  claim,  when  necessary,  375. 

generally,  375. 

printing,  when  necessary,  377,  552. 

no,  after  reply,  377. 

close  of,  377,  571. 

forms  of  37S. 

new  rules  of,  substituted  former  ones,  379,  552. 

what  matters  are  to  be  pleaded,  3S0. 

to  contain  material  facts  and  not  evidence,  381. 

should  not  anticipate,  383. 

admissions,  385,   636. 

should  not  contain  inferences  of  law,  386. 

should  be  as  brief  as  possible,  386. 

paragraphs  in,  to  be  numbered,  387. 


822  iXDEX. 

TLEADHi  GS— coufifitied. 

general  denials  in,  not  permitted,  3S8. 

payment  into  Court,  388,  552. 

amendment  of,  389,  551,  575- 

incidental  proceedings  between,  and  trial,  389. 

two  copies  to  be  lodged  on  entry  for  trial,  394,  623. 

interpretation  of,  434. 

production  of  documents  referred  to  in,  608. 

not  to  be  delivered  or  amended  in  long  vacation,  674. 

power  to  extend  time  of,  674. 

and  demurring  by  leave  to  same,  579. 

after  demur  overruled,  582. 

of  payment  into  Court  in  satisfaction,  590. 

of  material  facts,  <,^i. 

must  raise  true  ground  of  defence,  555. 

must  be  consistent,  556. 

to  be  delivered  to  officer  in  default  of  appearance,  ySo, 

to  be  marked  witli  date  of  delivery,  560. 

copy  of,  to  be  filed  within  two  days,  560. 

pleading  matters  arising  pending  the  actions,  5C1. 

date  and  order  of  amendment  to  be  marked,  577. 

demur  may  be  taken  to  any,  or  part  of,  577. 

to  be  struck  out  when  demurrer  allowed,  5S2. 

default  of  to  issue  with  third  party,  587. 

reply  and  subsequent,  570. 

forms  of,  706. 

PLEAS, 

scire  facias,  141. 

in  abatement  abolished,  553, 

PLEDGE, 

negligence,  claim,  693. 

POLICY  OF  INSURANCE, 
claim  on,  692. 

PORTIONS, 

suits  as  to  raising,  assigned  to  Chancery  Divis'on,  38,  169. 
for  form  of  indorsement,  6S9. 

POSSESSION,  WRIT  OF, 

when  obtained,  654. 
form  of,  753. 
precipe  for,  750. 

POSTPONEMENT,. 

of  trial,  624. 

POUNDAGE, 

levied  under  writ  of  execution,  641. 

PRACTICE, 

present  to  remain  in  force  where  no  other  provisii  n,  338. 
to  be  regulated  by  rules  of  Court,  58,  471. 
Chancery,  as  to  summons  continued,  670. 

PRECIPE, 

of  writ  of  execution  to  be  filcl,  641. 


INDEX.  .  823 

PRECEPTS, 

for  return  of  jurors,  671. 
forms  of, 

PREFERENCE, 

administrators  and  executors  right  of,  and  retainder,  335. 

PRELIMINARY  ACT, 

in  actions  for  damages  by  collision,  559. 

PRESERVATION, 

of  property,  interim  order  for,  663. 

PRESIDENT, 

Lord  Chancellor  of  Supreme  Court,  55,  457. 

right  of  appointing  officers  by  the,  of  Divisions,  75. 

Lord  Chief  Justice  of  Queen's  Bench  Division,  457. 

Lord  Chief  Justice  of  Common  Pleas,  of  Common  Pka^  Division, 

457- 
Lord  Chief  Baron  of  the  Exchequer  Division,  457. 

PRESUMPTION  OF  LAW, 

need  not  be  pleaded,   559. 

PRINCIPAL  AND  AGENT— 5^-^  Agent. 

PRINTING, 

pleadings  when  necessary,  377,  552. 

evidence  for  appeals,  421. 

special  case,  6i5. 

affidavits,  631. 

notices  in  writing  or  in,  672. 

on  special  paper  with  margin,  673. 

PRIVILEGED  COMMUNICATION, 
what  is,  602. 

PROBATE, 

power  of  Judges  of  Chancery  Division  to  recall  or  set  aside,  29. 
stay  of  action  pending,  30. 

PROBATE  AND  MATRIMONIAL  DIVISION, 
judge  of,  88,  457. 
judge  of,  can  grant  injunctions,  31. 
business  of,  40,  461. 

Court  of  Admiralty  to  be  annexed  in  future,  88. 
jurisdiction,  149. 

establishment  of  wills  within  the  exclusive  jurisdiction  of,  1 50. 
rules  and  orders  of,  adopted  by  Supreme  Court,  152,  473. 
transfer  of  actions  to,  181. 
business  to  be  transacted  by  single  judge,  465. 
not  affected  by  rules  under  this  Act,  500. 

PROCEEDINGS, 

other  than  actions  (subject  to  rules)  unaltered,  340. 
incidental,  between  pleadings  and  trial,  389. 
application  to  stay,  450. 


824  INDEX, 

PROCEDURE, 

to  be  regulated  by  rules  of  Court,  58,  471. 
the  new,  338. 

pre-existing,  how  far  preserved,  33S,  474. 
scope  of  rules  as  to,  339. 
pending  causes,  343. 
new  actions,  353. 
writ  of  summons,  355. 
service  of  writ,  360. 

Council  of  Judges   to  consider,   and  admii.istration   of  justice,  57, 
474- 

PROCTORS, 

may  become  solicitors,  487. 

PRODUCTION, 

of  witnesses  for  viva  voce  examination,  397. 
for  cross  examination  after  affidavit,  397,  628. 

PRODUCTION  FOR  INSPECTION  OF  DOCUMENTS, 
form  of  notice  for,  704. 
order  for,  time  to  apply,  406. 
referred  to  in  pleadings  and  affidavits,  608. 
notice  of,  to  be  served  on  solicitor,  61 1, 
order  for,  how  enforced,  610. 

PROHIBITION, 
writ  of,  138. 

PROLIXITY, 

costs  of,  to  be  borne  by  party  chargeable  with  same,  3S6,  502. 

PROMISSORY  NOTE, 

action  upon  form  of  pleadings,  737. 

PROPER  OFFICER, 

meaning  of,  683. 

PROSECUTION, 

action  dismissed  for  want  of,  393,  621. 

PUBLIC  ACCOUNTS, 

audit  of,  by  Local  Government  Board,  112. 

QUEEN'S  BENCH,  COURT  OY—sa-  Court  of  Queen's  Bench. 

QUEEN'S  BENCH  DIVISION, 

business  of,  39,  173,  489. 
Judges  of,  88. 

junior  Puisne  Judge  constituted  a  member  of  Common  Pleas  Divi- 
sion, 88,  459. 
arrangement  of  business,  91. 
Crown  side  of,  unaffected  by  the  Act,  500,  683. 
application  to  be  made  at  Chambers,  669. 

QUESTIONS  OF  FACT, 

authority  of  commissioner  to  try,  156,  455. 
right  to  have,  tried  by  jury,  618. 


INDEX.  825 

QUESTIONS  OF  LAW,- 

authority  of  commissioners  to  try,  156,  456. 
special  cases,  form  of,  614. 

QUIA  TIMET, 

bills  of,  unassigned  to  any  division,  173. 

REAL  ESTATE, 

partition  and  sale  of  (assigned  to  Chancery  Division),  171. 

REAL  PROPERTY  LIMITATION  ACT, 

provisions  of,  237. 

RECEIVER, 

appointment  of,  unassigned  to  any  Division,  38. 

duty  and  business  of,  appointed  in  lunacy  transferred, 

application  to  appoint,  148,  300,  461,  4S4. 

references  to  appoint,  148. 

extending,  148,  302,  462. 

grounds  for  the  appointment  of,  296. 

over  personal  estate,  299. 

the  Division  to  which  the  application  should  be  made,  300. 

may  be  appointed  by  any  judge,  301. 

immediate  appointment  of,  301. 

security  for,  301. 

appeals  from  orders  as  to,  302,  485. 

appointment  of,  281,  295,  453. 

on  interlocutory  motion,  662. 

appointing,  in  lunacy,  485. 

money  in  the  hands  of,  to  be  paid  into  Court,  485. 

claim  for,  should  appear  on  the  writ,  505. 

RECEIVER  MASTER, 

no  successor  to  be  appointed,  80,  483. 

officers  in,  office,  80,  486. 

Chancery  business  in  office  of.  III. 

general  business  in  office,  ill,  484. 

duty  of,  in  lunacy,  &c.,  transferred  to  junior  Lord  Judge,  1 18,    148, 

486. 
power  and  duty  as  to  receivers,  and  land  transferred  to  Land  Judges, 

484. 
other  matters  among  Chancery  Judges,  484. 
jurisdiction  transferable  to  Local  Government  Board,  4S6. 
general  orders  relating  to,  486. 
immediate  discharge  of  existing,  483,  487. 

RECORD,  COURTS  OF 

Courts  of  Probate  (a.d.  1857),  2. 

Courts  of  Matrimonial  Causes  and  Matters  (a.d.  1870),  2. 

the  Landed  Estates  Court  (a.d.  1849),  2. 

the  High  Court  of  Admiralty  (a.d.  1867),  3. 

Her  Majesty's  High  Court  of  Justice  in  Ireland  (superior),  27. 

Her  Majesty's  Court  of  Appeal  in  Ireland  (superior),  27. 

RECOVERY  OF  LAND, 

see  Land. 

2    O 


826  INDEX. 

ECOVERY  OF  PROPERTY, 

other  than  lands,  how  enforced,  654. 

RECTIFICATION, 

of  instruments  in  case  of  mistake,  Sic,  332. 
form  of  indorsement  of  claim,  690. 

RE-DISTRIBUTION 

of  business,  37,  67,  69. 

REDEMPTION  SUIT, 

assigned  to  Chancery  Division,  3!^,  169. 
form  of  claim,  689. 

REGISTRAR, 

right  of  succession  in  Chancery  Office,  66,  476. 
findings  to  be  entered  by,  625. 
judgment  immediate  on  certificate,  625. 

RE-HEARING, 

all  appeals  are  by  way  of,  415. 

RELEASE, 

of  claim  must  be  specifically  pleaded,  555. 

RELIEF, 

by  set  off  and  counter  claim,  190,  449. 

cross  relief  against  co-defendants  and  third  persi  ns,   19^. 

collateral,  between  co-defendants,  203. 

plenary,  223,  451. 

between  all  parties  interested,  224,  450. 

must  be  properly  claimed,  226. 

against  penalties,  275. 

against  forfeiture,  278. 

summary  orders  for,  before  pleading,  366. 

statement  of  claim  must  ask  for,  387. 

alternative,  371. 

application  for,  on  admissions  in  pleadings,  636. 

subject  to  conditions,  order  for  execution,  639. 

defendant  need  not  be  interested  in  all  the  relief,  536. 

prayed,  551. 

REMITTING  ACTION, 

from  one  Division  to  another,    176. 

to  Civil  Bill  Courts,  427,  48,  470. 

order  for  made  by  Judge  in  Chambers,  31,  1S2. 

ground  for,  177. 

pending,  relating  to  same  subject,  iSi. 

RENEWAL 

of  writ  of  summons,  512. 
of  writ  of  execution,  643. 

RENT,  ACTION  FOR 

application  to  remit  ejectments  for  non-payment  of,  6S2.} 
may  be  joined  with  ejectment,  547- 
orm  of  claim,  697. 
form  of  pleadings  in  action  for,  735. 


INDHX.  S27 

REPLY, 

time  for,  371. 

default  of,  377. 

no  pleading  after,  377. 

to  be  divided  into  paragi'aphs  and  numbered,  378. 

affidavit  in,  when  filed,  630. 

to  counter  claim,  $6^. 

and  subsequent  pkaunigs,  570' 

time  for  delivery  of  pleadings  after,  571. 

default  of,  587. 

RESPONDENT 

not  put  to  cros5-appeal,  412. 

RETAINER, 

administrators  and  executors  right  of,  335. 

RULES, 

of  equity,  to  prevail  over  those  of  law,  51,  324. 

preliminary,  58. 

of  Court,  58,  470. 

of  evidence  not  affected,  60,  394,  473. 

cannot  alter  the  law  relating  to  jurymen  or  juries,  60. 

may  alter  statutory  provisions,  60,  474. 

future,  of  Court,  60,  472. 

regard  to  be  had  to  English,  61,  472. 

parliamentary  sanction  to  all,  of  Court,  62,  472,  474. 

Schedule  Rules,  62,  494. 

Probate  Court,  adopted,  62,  152,  473. 

of  Courts,  transferred,  63. 

and  orders  of  Court  of  Bankruptcy  unaffected,  63. 

other  powers  as  to  making,  unaffected,  472. 

force  and  effect  of  Judicature  Rules,  64. 

majority  of  Judges  necessary  to  make  rules,  60. 

of   Landed    Estates    Court,  retained  (subject  to  alterations),   144, 

147. 
scope  and  effect  of,   as  to  procedure,   339. 
exceptions  from  the,   340. 
the  new,   when  retrospective,   341. 

new,   of  pleading,  substituted  for  former  ones,  379,  552. 
of  law  to  apply  to  inferior  Courts,   488. 
exceptions  from,  500. 

RULES  TO  SHOW  CAUSE, 
abolished,  665. 

SALE, 

and  distribution  of  proceeds,  subject  to  any  lien,  assigned  to  Chan- 
cery Division,  38. 
of  lands,  power  of  Masters  in  Chancery  to  execute  deeds,  109. 
order  for,  of  chattels,  663. 

SAMPLES 

ordered  to  be  taken  by  interlocutory  order,  663. 

SATISFACTION, 

notice  of  payment  in,   701. 
acceptance,   701. 


828  INDEX. 

SCANDALOUS, 

matters,  to  be  struck  out,  573. 

SCHEDULED  RULES, 

to  regulate  procedure,  472. 

38,  contained  in  the  Act,  62,  494. 

SCIRE  FACIAS, 
writ  of,  141. 

SEALING, 

every  writ  of  summons  is  to  be   sealed,  when  it  is  to  be  deemed 
issued,  358. 

SECURITY  FOR  COSTS, 

amount  to  be  fixed  by  officer,  672. 

SEPARATE  ADMINISTRATION, 

by  divisions,  36. 

SEPARATE  ESTATE, 

actions  to  declare  a  charge  on,  unassigned  to  any  division,  173. 
of  married  women,  335. 

SEQUESTRATION, 

writ  of,  to  enforce  judgment  for  chattels,  639. 

writ  of,  for  non-payment  of  money  into  Court,  or  other  contempt, 

652. 
summons  to  approve  of  sequestrator,  653. 
form  of  writ,  749,  755. 

SEQUESTRATOR, 

appointment  of,  653. 

SERVICE, 

of  writ  of  summons  in  same  manner  as  process  of  former  Courts, 

360,  514. 
substitution  of,  of  writ  of  summons,  361,  515. 
of  writ,  out  of  jurisdiction,  362,  456,  504,  517. 
disputed,  of  writ,  362. 
irregular,  of  writ,  362. 
address  for,  365. 

of  notice  on  parties  added  to  action,  373. 
of  notice  of  motion  by  way  of  appeal,  41 1. 
title  of  affidavit  for,  out  of  jurisdiction,  504. 
of  writ  for  recovery  of  land,  514. 
accepting,  514. 

of  copy  of  order  for  new  trial,  6j^. 
notice  in  lieu  of,  521. 
affidavit  of,  in  default  of  appearance,  526. 
of  notice  on  third  persons,  543. 
through  post-office,  58S. 
certificate  of,  5S9. 
of  third  persons,  589. 

SET  OFF, 

relief  by  way  of,  and  counter  claim,  190,  550. 

by  Common  Law  Statutes,  190. 

in  equity,  191. 

under  the  present  Act,  192. 


829 


SETTING  ASIDE  DEEDS, 

rectification  and  assigned  to  Chancery  Division,  170. 

SETTING  DOWN, 

cases  on  motion  for  judgment  in  default  of  a  defence,  376. 
and  listing  appeals,  413,  416. 
of  special  case,  705. 

SHERIFFS, 

fees  to  be  regulated  by  rules  of  Court,  59. 

SHIP, 

form  of  pleading  about,  743. 

SHORT-HAND  WRITERS, 

when  allowed,  58,  394,  681. 
expenses  how  borne,  681. 

SITTINGS, 

substitution  of,  for  terms,  41,  454. 

of  Courts,  to  be  regulated  by  rules  of  court,  58,  98,  455,  471. 

Courts  may  sit  at  any  time  or  place,   98. 

for  trial  by  Jury  in  Dublin  to  be  continuous,  456. 

at  chambers  at  stated  times,  667. 

SOLICITORS  OF  SUPREME  COURT, 

under  the  jurisdiction  of  the  Supreme  Court,   36,   56,  78,  488. 

costs  to  be  regulated  by  rules  of  Court,  59,  471. 

to  be  called  "Solicitors  of  the  Court  of  Judicature,"  4S7. 

apprentices,  78,  488. 

appearance  by,   365. 

costs  may  be  included  in  party  and  party  costs,  403. 

to  prepare,   &c.,   writs  of  summons,   509. 

and  plaintiffs  bound  to  disclose  name  of  firms,   5 12. 

liable  to  attachment  in  default  of  appearance,  521. 

SPECIAL  CASES, 

after  writ  of  summons  is  issued,  378,  552. 

form  of,  614. 

Court  may  direct,  615- 

printing,  615.  ,     ^   . 

discharging  order  irregularly  made,  616. 

leave  to  set  down  in  case  of  disability,  617. 

entry  for  argument,  617. 

for  opinion  of  court,  552' 

setting  down,  705. 

SPECIAL  INDORSEMENTS, 

for  receiver  mandamus,  or  injunction,  358,  505. 

for  liquidated  demand,  506. 

for  a  bill  of  exchange,  507. 

claim  for  an  account,  507. 

of  writ,  final  judgment  in  default  of  appearance,  526. 

of  writ,  leave  to  defend,  529. 

of  writ,  notice  in  lieu  of  statement  of  claim,  563. 

forms  of,  697. 

SPECIAL  TRIBUNALS, 

advantages  of,  13, 

202 


830  INDEX. 

SPECIFIC  CHATTELS, 

writ  of  delivery  of,  527- 

SPECIFIC  PERFORMANCE 

of  contracts  (assigned  to  Chancery  Division),  38,  171. 
form  of  claim,  690. 

STAMPS, 

office,  on  proceedings, 
see  Schedule,  p.  758. 

STATEMENTS, 

embarrassing,  to  be  struck  out,  573. 

STATEMENT  OF  CLAIM, 

amendment  of,   28,  575- 

when  necessary,  375. 

default  of,   375,  583. 

should  not  anticipate  defence  or  reply,  383. 

to  be  divided  into  paragraphs  and  numbered,   3S7. 

should  state  relief,   and  may  ask  for  general  relief,  387. 

delivery  of,  55°- 

when  to  be  delivered,  562. 

notice  in  lieu  of,  when  writ  specially  indorsed,  563. 

further,  and  particulars,  564. 

STATEMENT  OF  DEFENCE, 

where,   is  necessary,   376. 

default  of,  376,  583. 

set-off  and  counter  claim,  553* 

to  be  divided  into  paragraphs  and  numbered,  3S7. 

delivery  of,  550. 

see  Further  Defence. 

STATUTES, 

construed  as  applying  to  the  High  Court,  107,  475. 
amendment  of  Bankrupt  and  Insolvent  Act  (1857),  492. 

STATUTES  OF  LIMITATIONS, 

not  to  bar  transferred  actions,  29. 

not  applicable  to  express  trusts,  231,  452. 

not  to  affect  an  action  where  a  renewed  writ  has  been  granted,  513. 

when  relied  on,  must  be  pleaded,  555. 

STATUTORY, 

provisions  may  be  altered  by  rules  of  Court,  60,  474. 

jurisdiction  of  Courts  transferred,  475. 

injunction  by  person  claiming  interest  in  stock,  652. 

STAY  OF  EXECUTION. 

by  an  appeal  of  a  common  law  judgment  to  House  of  Lords,  426 
by  Court  of  Appeal,  of  Chancery  Division,  judgment,  426. 

STAY  OF  PROCEEDINGS, 

as  a  remedy  by  way  of  injunction,   219, 

application  for,  219,  450. 

proper  Division  to  apply  to,  220. 

ajipeal  is  no,  422 

if  defendant  pay  debt  and  costs,  507. 

for  want  of  disclosure  of  names  of  firm,   512. 

order  for  new  trial,  633. 


INDEX.  831 

STIPULATIONS  NOT  OF  THE  ESSENCE  OF  THE  CONTRACT, 

as  to  time  and  quantity  follow  the  rules  of  equity,  272,  453. 

STRIKING  OUT, 

pleading  power  of  Court,  568. 
pleadings  when  demurrer  allowed,  582. 
of  scandalous  matters,  573. 

SUBP^NA  AD  TEST, 

for  cross-examination,  631. 

STOCK— Jtv  Charging  Stock. 

SUBSTITUTED  SERVICE 

in  writs  of  summons,  361,  515- 

SUIT, 

combination  of,  225. 
meaning  of,  353,  433. 
see  Action. 

SUMMONS,  WRIT  OF— j^v  Writ  of  Summons. 

SUMS 

to  be  expressed  in  figures,  387. 

\     SUNDAY 

"T^  not  to  be  reckoned  in  time  when  less  than  six  days,  673. 

offices  not  open,  680. 

SUPPORT, 

wrongful  i-emoval  claim  for,  696. 

SUPREME  COURT  OF  JUDICATURE, 

Supreme  Court  of  Judicature  and  its  constituents,  155,  435. 

consists  of  two  permanent  divisions — Her  Majesty's  High  Court  of 
Justice  in  Ireland;  and  H.M.'s  Court  of  Appeal  m 
Ireland,  27,  56,  435. 

has  no  existence  as  a  Court  of  Justice,  36. 

duty  of,  36. 

"  supreme"  a  misnomer,  55. 

president  of,  55. 

jurisdiction  of,  56. 

transfer  of  pending  causes  to,  164,  447. 

jurisdiction  transferred  to  be  exercised  as  nearly  as  may  be  as  here- 
tofore, 448. 

SURETY, 

form  of  claim  by,  692. 

TAXATION— j^^  Costs. 
TAXING  OFFICE— jf^  Costs. 

TERMS,  ^    . 

abolished  for  judicial  purposes,   but  used   as   measure  of  tnne,  97, 

454- 
interpretation  of,  432,  683. 
see  .Sittings. 


832  INDEX. 

TESTE, 

of  writ  of  summons,  356,  502. 

form  of,  684. 

and  forms  of  writ  of  execution,  641. 

THIRD  PERSONS, 

cross  relief  against  co-defendants  and,    199. 

cross  relief  against,  must  include  relief  against  the  plaintiff,    202. 

no  counter  claim  by,   204. 

cannot  be  made  co-defendants  in  cases  of  tort,  by  the  defendant, 

210 
no  injunction  against,   294. 
enforcing  orders  by,  644. 
service  of  counter  claim  on,  566. 
default  of  pleadings  to  issue  with,  5S7. 
service  on,  589. 

notice  to.  liable  to  contribute,  542. 
form  of,  699. 

appearance  by,  to  dispute  plaintiff's  claim,  544. 
binding,  544. 
appearance  of,  567. 

TIME, 

stipulations  as  to,  in  contracts,"273,  453. 

for  appealing,  40S. 
I  for 'ex-parle  applications,  409. 

'  extending,  for  appealing,  410. 

for  appealing,  how  computed,  409. 

for  appealing  to  House  of  Lords,  425. 

enlarged  or  abridged  after  time  expired,  674. 

for  delivery  of  claim,  562. 

for  delivery  of  defence,  564. 

appearance  after,  limited,  524. 

^  TIME  TABLE— p.  xxv. 

TITLE, 

receiver  appointed  in  case  of  disputes  of,  299. 
of  Court  and  Division  on  writ  of  summons,  356. 
in  actions  for,  service  of  writ,   361. 
in  defending  ejectments,  need  not  be  pleaded,  554. 
trustees,  title  denied,  553. 

TRADE  MARKS, 

infringements  unassigned  to  any  division,  38. 
injunctions  against  fraudulent  imitations,   285. 

TRANSFER  OF  ACTIONS, 

brought  in  wrong  Divisions,  28,  41,    176,  460. 

by  order  of  a  Judge  in  Chamber,  31,   182. 

grounds  for,    177. 

relating  to  the  same  subject,   iSi. 

from  Civil  Bills  Court  to  Chancery  Division,  and  vice  versa,  48. 

to  Civil  Bill  Courts,  427,  407. 

in  Chancery  Division,  for  hearing  only,  660. 

TRANSFER  OF  BUSINESS, 

all  pending  causes  transferred  to  Supreme  Court,  164,  447. 


INDEX.  83S 

TRANSFER  OF  OFFICERS, 

existing  staff  transferred  to  Court  of  Judicature,   65,  476. 
also  see  Officers  and  Offices. 

TRANSFER, 

all  books,  papers,  documents,  &c.,  to  Supreme  Court,  4S9. 

TRAVERSING, 

cost  of,  needless  facts,  565- 

TRAVERSE, 

no  general,  551. 

TRESPASS, 

injunctions  against,  288. 
distinction  Ijetween  waste  and,  288. 
form  of  claim,  696. 
form  of  pleadings,  742. 

TRIAL, 

mode  and  place  of,  to  be  settled  by  rules  of  Court,  58. 

one,  and  judgment,  195. 

incidental  proceedings  between  pleadings  and,  389. 

and  evidence,  391. 

county  and  place  of,  to  be  named  in  summons,  391,  456,  502,  617. 

unless  the  trial  is  without  jury,  392,  502. 

different  modes  of,  392,  620. 

notice  of,  392,  622. 

form  of,  706. 

judge  may  order  different  modes  and  times  of,  392,  621. 

notice  of  trial  other  than  by  jury,  393,  620. 

notice  of,  by  defendant,  394,  620. 

notice  of,  can  only  be  countermanded  by  consent  or  leave,  394>  623. 

general  list  for,  in  Dublin,  394,   623. 

record  of  proceedings  at,  394. 

certificate  for  judgment,  form  of,  706. 

default  of  appearance  of  plaintiff  or  defendant  at,  395,  623,  624. 

exceptions  to  directions  at,  396. 

applications  for  new,  397. 

new,  not  unless  substantial  miscarriage,  398. 

new,  as  to  part  without  disturbing  the  rest,  398. 

commission  to  judges  to  try  questions  of  fact  or  law,  93,  45$. 

in  Dublin  and  on  circuit,  463. 

assessment  of  damages  and  of  fact  in  Chancery  Division,  463. 

application  for  new,  to  Divisional  Court,  397,  467. 

with  assessors,  292,  470,  626. 

entry  for,  by  opposite  party,  623. 

on  entry  for,  two  copies  of  pleadings  to  be  lodged,  623. 

adjoiu-nment  of,  624. 

judge  may  order  before  a  jury,  625. 

before  commissioners,  626. 

withdrawal  of  action  entered  for,  569. 

TRIAL  WITH  JURY, 

short-hand  writer,  when  allowed  to  be  settled  by  rules  of  Court,  58. 
rules  of  evidence  not  affected,  390. 


834  INDEX. 

THIAL  WITH  JURY— continued. 
right  of,  unaffected,  390,  502. 
viva  voce  examination  of  witnesses  at,  396,  627. 
costs  of  actions,  402. 

sittings  for,  in  Dublin,  to  be  continuous,  456. 
writ  must  name  place  of  trial,  502. 
right  to,  of  questions  of  fact,  618. 
notice  of,  620. 

to  be  before  a  single  judge,  621. 
judge  may  order,  625. 

TRUSTS, 

execution  of  charitable  and  private,  assigned  to  Chancery  Division, 

38,  170-. 
express,  statute  of  limitation  inapplicable  to,  51,  235,  452.'  .^^ 
form  of  claim,  689. 

TRUSTEE  RELIEF  ACTS, 

paying  money  into  Court  under,  453. 

TRUSTEES, 

Chancery  appointment  of  new  trustees,  120. 

divesting  estates  of  lunatic,   in  Chancery,  124. 

in  lunacy,  126. 

in  cases  of  lunatic  trustees,    127. 

divesting  of  estates,  and  appointing  new,  128. 

accounts  between,  and  cestui  que  trust,    168,   231. 

executors  constituting  themselves  trustees,  236. 

costs  of,   and  mortgagees  unaltered,  403,  468. 

title  denied,  553. 

actions  by  and  against,  537- 

UNCLAIMED  DIVIDENDS 

in  bankruptcy,  payment  of,  492. 

UNDERTAKING, 

to  appear,  solicitors  liable  to  attachment  on  default,  523. 

VACATIONS, 

long  and  short  vacations  to  be  fixed  by  Lord  Lieutenant  and  Privy 
Council  on  the  recommendation  of  the  Judges,  41,  59, 
98,  454- 

siltmgs  in,  58,  94,  455. 

no  pleadings  to  be  delivered  in,  674. 

not  to  be  reckoned  for  filling  or  amending  pleadings,  674. 

duration  of,  680. 

business  discharged  in,  681. 

VACATION  JUDGES, 

sittings  to  be  regulated  by  rules  of  Court,  60. 

to  hear  cases  in  Dublin  during  vacations,  99,  680. 

reversing  order  of,  681. 

VENDITIONI  EXPONAS, 

issued  in  aid  of  fi.  fa.  or  elegit,  645. 
form  of  prjEcijie,  749 
form  of  writ,  752. 


835 


VENUE, 

to  be  named  in  summon?,  391,  456,  50^,  617. 
where  cause  of  acLion  arises,  391,  456. 

VICE-CHANCELLOK, 

vested  with  the  jurisdiction  of  Masters  in  Chancery,  no. 

VIVA  VOCE  EXAMINATION 

of  witnesses  at  trials  by  jury,  396,  627. 

VOLUNTEER, 

position  of,  in  assignments  of  choses  in  action,  271. 

WANT  OF  PROSECUTION, 

see  Dismissal  for  Want  of  Prosecution. 

WARD  OF  COURT, 

see  Infant. 

WARDSHIP, 

of  infants,  suits  as  to.  assigned  to  Char.cery  Division,  172. 
also  see  infants. 

WASTE, 

equitable  waste  by  tenant  for  life,  240,  452. 

at  common  law,   240. 

legal,  when  restrained  in  equity,   241. 

meliorating,   242. 

tenants  dispunishable  of,   242. 

equitable,  restrained,  243. 

permissive,  244. 

conflict  between  the  rules  of  law  and  equity  as  regards.  244. 

injunction  against,   288. 

distinction  between,  and  trespass,  288. 

WATERCOURSE, 

claim  for  diverting,  696. 

WAY, 

right  of,  claim  for,  696. 

WILLS,  ,        ^.  .  . 

establishment  of,  exclusively  assigned  to  Probate  Division,  150. 

evidence  concerning,  at  trial,  15 1. 

the  heir-at-law  is  entitled  to  a  trial  by  jury,  1 52. 

WINDING-UP, 

application  to  stay  proceedings,  220. 

rule  in  bankruptcy  to  prevail,  228. 

rule  in  bankruptcy  not  retrospective,  230. 

transfer  of  action  relating  to,  by  Chancery  jud-e,  661. 

time  for  appeals  in,  677.  * 

WINTER  ASSIZES, 

Winter  Assizes  Act  (1876)  extended  to  Ireland,  94,  173. 
allowance  for  judge  going,  444. 


836  INDEX. 

WITHDRAWAL, 

of  action  entered  for  trial,  569, 
of  defence  or  counterclaim,  569. 

WITNESS, 

remuneration  of,  to  be  settled  by  rules  of  Court,  59. 
costs  of,  qualifying  himself  for  examination,  336. 
viva  voce  examination  of,  at  trials  by  jury,  396. 

WORK  DONE, 

form  of  claim,  696. 

WRIT, 

to  be  marked  with  the  name  of  the  Division,  &c.,  40. 

to  be  regulated  by  rules  of  Court,  68- 

a  seal  office  to  be  consolidated  with  Record  and  Writ  Office,  68. 

WEIT  OF  ATTACHMENT, 

to  enforce  judgments,  369. 

to  enforce  persons  to  do  or  abstain  from  an  act,  639. 

to  have  the  same  effect  as  those  formerly  issued  out  of  Chancery, 

not  to  be  issued  without  leave,  646. 

WRIT  OF  CERTIORARI, 

issued  from  Chancery,   135. 

WEIT  OF  DELIVERY, 

to  enforce  judgment  for  recovery  of  chattels,  639. 
issued  as  heretofore,  654. 
for  specific  chattels,  527. 

WRIT  OF  DE  CORONATORE  ELIGENDO  ET  EXONERANDO 
how  issued,  1 14. 

WRIT  OF  DISTRINGAS, 

charging  stock  or  shares,  651. 

WRIT  OF  ELEGIT, 

to  enforce  sum  due  under  a  judgment,  642. 
executed  as  heretofore,  645. 

WRIT  OF  ERROR, 

in  criminal   cases  on  appeal  from  Q.  B.  D.  transferred  to  H.  M. 

Court  of  Appeal,  43,  158,  160. 
in  civil  actions  abolished,  in  criminal,  134,  I54>  i6o>  473' 

WRIT  OF  EXECUTION, 
several  writs  of,  639. 

officer  must  be  satisfied  of  date  of  entry,  before  issuing,  640. 
indorsement  of  name  and  abode  of  solicitor  on,  641. 
teste  and  forms,  641. 

indorsement  of  amount  really  due  and  interest  on,  642. 
writ  in  force  for  a  year,  643. 
renewal  of  writ,  643. 
order  in  which,  are  issued  not  affected,  644. 


837 


WRIT  OF  FIERI  FACIAS, 

to  enforce  sum  due  under  a  judgment,  642. 
executed  as  heretofore,  645. 

WRIT  OF  HABEAS  CORPUS, 
ad  testificandum,  136. 
ad  faciendum,  136. 
ad  subjiciendum,  137. 

WRIT  OF  INQUIRY, 

in  default  of  appearance,  for  detention  of  goods,  527,  584. 

WRIT  OF  NE  EXEAT  REGNO, 

issued  from  Record  and  Writ  Office,  142. 

WRIT  OF  PROHIBITION, 

issued  in  Clrancery  as  well  as  by  Common  Law  Courts,  138. 
appeals  from,  to  H.M.  Court  of  Appeal,  141. 

WRIT  OF  POSSESSION, 

to  enforce  judgment  for  possession  of  land,  638. 
may  be  issued  with  order,  654. 

WRIT  OF  SEQUESTRATION, 

to  enforce  judgment  for  payment  of  money  into  Court,  638. 
to  enforce  judgment  of  chattels,  &c.,  639. 

for  non  payment  of  money  into  Court  or  other  contempt,  652. 
summons  to  approve  of  sequestrator,  653. 

WRIT  OF  SUMMONS, 

all  actions  commenced  by,  355,    176,  501. 

preparation  of,  355,   501. 

form  of,   355,  502,  684,  6S5. 

for  service  out  of  jurisdiction  of,  686. 

notice  in  lieu  of,  6S7. 

title  of  Court  and  Division  on,  356. 

title  of  cause,  date  and  teste,  356,  502. 

indorsement  of  claim  on,  357,  505. 

precise  ground  of  complaint  not  essential,  357,  505. 

sealing  and  issuing,  358,  509- 

copy  filed  and  action  distinguished  by  number,  358. 

amendment  of,  359,  577. 

service  of,  360,  514. 

substituted  service  of,  361,  515. 

service  of,  out  of  jurisdiction,  362,  504,  456,   517. 

disputed  service  of,  362. 

appearance  to,  363. 

county  or  place  of  trial  to  be  named  on,  391,  502. 

unless  the  trial  is  without  jury,  392. 

two  signed  copies  to  be  left  with  officers,  509. 

concurrent,  issued  within  twelve  months,  51 1. 

solicitor  bound  to  avow,  512. 

renewal  of,  512. 

under  Bills  of  Exchange  Act,  685. 

2  P 


838  INDEX. 

WRIT  OF  VENDITIONI  EXPONAS,    645,  752. 

WRIT  TO  JUDGE  TO  SIGN  BILLS  OF  EXCEPTIONS 
under  Statute  of  Westminster,  141. 

WRITS  GENERALLY, 

to  be  dated  day  of  issue,  502. 

WRITTEN  AGREEMENTS, 

mistakes  in,  rule  of  equity  to  prevail,  332. 


DUBLIN:    PRINTED    BY    ALEXANDER    TIIOM,    87    &    88,    ABBEY    STREET, 
PRINTEK    TO   TIIE    QUEEN'S    MOST    EXCELLENT   MAJESTY. 


WORKS  ON  THE  ENGLISH  JUDICATURE  ACT. 


The  Supreme  Court  of  Judicature  Acts,  1873, 1875  and  1877. 

Second  FZdition,  embodying  all  the  Reported  Cases  to  Michaelmas  Sit- 
tings, 1877,  and  a  Time  Table.  By  William  Downes  GrifHtb,  of  tbe 
Inner  Temple,  Barrister-at-Law,  and  a  Judge  of  the  County  Courts  ;  and 
Richard  Loveland  Loveland,  of  the  Inner  Temple,  Barrister-at-Law. 

Price  30s. 

The  Practice  of  the  Supreme  Court  of  Judicature  and  of  the 

House  of  Lords  on  Appeals.  By  Locock  Webb,  of  the  Middle  Temple,  one 
of  Her  Majesty's  Counsel.  Price  30s. 

Wilson's  Judicature  Acts,  Rules  and  Forms.     With  Notes 

and  a  Copious  Index,  and  additional  |Rules,  forming  a  Complete  Guide 
to  the  New  Practice.  By  Arthur  Wilson,  of  the  Inner  Temple, 
Barrister-at-Law.     3rd  Edition.     (Just  ready.) 

Prentice's  Proceedings  in  an  Action  in  the  Queen's  Bench, 

Common  Pleas  and  Exchequer  Division  of  the  High  Court  of  .Justice, 
By  Samuel  Prentice,  of  the  Middle  Temple.  Price  lOs.  6d. 

Morgan's  Acts  and  Orders,  Fifth  Edition,  1876  —The  Statutes, 

General  Orders,  and  Rules  of  Court  relating  to  the  Practice,  Pleading,  and 
Jurisdiction  of  the  Supreme  Court  of  Judicature,  particularly  with  refer- 
ence to  the  Chancery  Division,  and  the  Actions  assigned  thereto.  With 
copious  Notes.  Fifth  Edition.  Carefully  revised  and  adapted  to  the 
new  Practice  by  George  Osborne  Morgan,  M.P.,  One  of  Her  Majesty's 
Counsel,  and  Chaloner  W.  Chute,  of  Lincoln's  Inn,  Barrister-at-Law. 

Price  30s. 

Seton's  Forms  of  Decrees,  Judgments,  and  Orders  in  the 

High  Court  of  Justice  and  Courts  of  Appeal,  having  special  reference  to 
the  Chancery  Division.  Fourth  Edition.  With  Practical  Notes.  By 
R.  H.  Leach,  Esq.,  Senior  Registrar  of  the  Chancery  Division  of  the  High 
Court  of  Justice,  F.  G.  A.  Williams,  of  the  Inner  Temple,  Esq.,  and  H. 
W.  May,  of  Lincoln's  Inn,  Esq.,  Barristers-at-Law.  In  2  vols.,  royal 
8vo.  (Fol.  II.  in  the  jjress.)  Vol.  1.  Price  30s. 


DUBLIN :  HODGES,  FOSTER  &  FIGGIS,   104,  GRAFTON  STREET, 

^ooliscllcrs  to  the   Ijoii.  ..Sotictu  of  Iling's  |iin3. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  732  580    6 

Just  Published,  price  7s.,  cloth  boards. 


THE 


IRISH  CHURCH  ACTS,  1869  &  1872, 

'  AND 

VARIOUS  STATUTES  CONNECTED  THEEEWITH, 


"THE  IRISH  PRESBYTERIAN  CHURCH  ACT,   1871," 
"THE  GLEBE  LOAN  (IRELAND)  ACTS,   1870  to  1875," 
"THE  GLEBE  LANDS  (IRELAND)  ACTS,  1855  to  1875," 
"THE  PAROCHIAL  RECORDS  (IRELAND)  ACT,  1875," 
&c.,  &c., 

TOGETHER    WITH 

EEPORTS    OF    LEADING    CASES 

DECIDED  UNDEE  THE  IRISH  CHURCH^ACTS, 


m  GENERAL  RULES  AND  FORMS  OF  PROCEDURE 


THE    COMMISSIONERS    OF    CHUECH    TEMPORALITIES    IN    IRELAND, 

&c. 

WITH  AN  INDEX. 


WILLIAM  LEIGH  BERNARD,  ESQ., 

BAKllISTER-AT-LAW, 

CHIEF  CLKRK  TO  TH^  COMMISSIONERS, 

EDITOR  OP  "DECISIOKS  UNDER  THE  IRISH  CHURCH  ACT,   ISC! 


DUBLIN:  HODGES,  FOSTER  &  FIGGIS,  104.  GRAFTON  STREET. 

^loohscUcrs  to  tlic  Ijon.  Sat'utv  oi  fling's  |nus. 
. — ^    v^  :.—