BOOK VI. PRACTICE. CHAPTER I. INTRODUCTORY-COMMENCEMENT OF ACTION. What is Practice? This question may be well answered in What is the language employed by Lord Penzance in a judgment Practice? delivered in 1886 (1), "Everything which constitutes a part of what I may call the machinery of justice in its administration is a matter of practice. The forms in which the parties shall present their respective cases; the times fixed and allowed for the successive steps in a suit; the times and places, whether in Court or chambers, at which applications to the judge should be made and heard; the forms to be followed; and the rules to be observed in the entire progress of the suit; these things do not concern the law or justice involved in the suit on either side, but only the mechanical arrangements under which the opposite contentions of the suitors may be best presented to the judgment of the Court, and are consequently matters of procedure or practice." action. The attention of the reader has already been drawn to the Commencefact that before the 2nd November, 1875, a plaintiff who sought ment of to enforce a claim against another was obliged to employ different forms of procedure in different Courts, and that the Judicature Acts and Rules which then came into operation to a very large extent introduced uniformity in this respect into the practice of the different divisions of the Court (ante, p. 346). The very first of the Rules provides that all actions which, previously to the commencement of the Judicature Act, were commenced by writ in the Superior Courts of Common Law at Westminster, or in the Court of Common Pleas at Lancaster, or in the Court of Pleas at Durham, and all suits which, previously to the commencement of the Judicature Act, were commenced by bill or information in the High Court of Chancery, or by a cause in rem or in personam in the High Court of Admiralty, or by citation or otherwise in the Court of Probate, shall (') Noble v. Ahier, 11 P. D. 158. VOL. II. 3 A General provision as to practice. Illustration. be instituted in the High Court of Justice by a proceeding to be called an action. This is followed by a general provision of great importance, that all other proceedings in and applications to the High Court may, subject to the rules of Court, be taken and made in the same manner as they would have been taken and made in any Court in which any proceeding or application of the like kind could have been taken or made if the Judicature Acts had not been passed (1). Where no rule of practice is laid down by the Orders under the Judicature Acts, and there is a variance between the former practice of the Courts of Chancery and Common Law, that practice which is considered by the Court to be the better and more convenient, is to prevail. This rule may be illustrated by the decision of the Court in the two important cases (2) in which the principle was first laid down, which are peculiarly appropriate for our consideration, as they concern the very commencement of an action. In these cases solicitors had employed the names of persons as plaintiffs without their authority. The practice with regard to such cases in the Common Law Courts was completely different from that which was established in the Court of Chancery. The late Sir George Jessel, in delivering judgment, said :— "In such cases the old practice of the Court of Chancery was that the defendant was not served with notice of the application, but was left to get his costs from the person named as plaintiff, who had afterwards to get these costs over from the solicitor. The result was, that the nominal plaintiff, who had never given any authority for the use of his name, had to pay the defendant's costs, and might be unable to recover them by reason of the insolvency of the solicitor. On the other hand, according to the practice of the Common Law Courts, the defendant was served with notice of the application, and the solicitor had to pay the costs of both the plaintiff and the defendant. (3) "The question is, which practice is now to be followed. Since the passing of the Judicature Act that must be left to the Court to determine. By the 21st section of the Judicature Act, 1875, it is enacted that in cases where no new method of procedure is (1) See as to motions, O. LII.; petitions, O. LII. r. 16; summonses, O. LV. r. 20; originating summons, O. LV. r. 3; special case, (). XXXIV. (2) Newbiggin-by-the-Sea Gas Co. v. Armstrong, 13 Ch. D. 310; Nurse v. Durnford, 13 Ch. D. 764; and see Brett's Leading Cases in Modern Equity, p. 309, where the cases on the subject are reviewed. (3) Newbiggin-by-the-Sea Gas Co. v. Armstrong, 13 Ch. D. p. 310. prescribed the old practice is to prevail, but where there is a variance in the practice it does not say which practice. I have no hesitation in saying that I think the common law practice in this case is founded in natural justice, and ought to be followed in the future." The decision of the Court, accordingly, in both cases, was that the actions must be stayed, and that the solicitors who had commenced them without authority must pay the costs of the plaintiffs as between solicitor and client, and the costs of the defendants as between party and party (see post, p. 801). action. Every action in the High Court is commenced by a writ of Commencesummons, which must be indorsed with a statement of the ment of nature of the claim made, or of the relief or remedy required in the action, and which must specify the Division of the High Court to which it is intended that the action should be assigned. There is an old established principle with regard to judicial acts that the law takes no account of any fraction of a day, and that such acts "relate back to the earliest moment of the day on which they are done." It has, however, been decided that to issue a writ of summons is not a "judicial act," and that the Court may therefore enquire at what period of the day a writ was issued (1). No writ of summons for service out of the jurisdiction or of Service out which notice is to be given out of the jurisdiction, may be issued of juriswithout the leave of the Court or a judge (2). It diction. may be convenient here to notice that the expression "the The Court Court or a judge " means throughout the rules a judge in Court or a judge. or a judge in Chambers. The jurisdiction of a judge in Chambers is, with certain important exceptions hereafter noticed (post, p. 779, et seq.), expressly made exercisable by a master in the Queen's Bench Division, and a chief clerk in the Chancery Division (3). Generally speaking, every writ must be dated on the day on which it is issued, and be tested in the name of the Lord Chancellor, or, if that office be vacant, in the name of the Lord Chief Justice of England (1). 63. (1) Clarke v. Bradlaugh, 8 Q. B. D. (*) R. S. C., Order II. r. 4; 19 Ch. D. 460, 461. (3) The words "court or a judge," said Jessel, M.R., were used in the rules, because the rules applied to all the divisions, and in the common law divisions it was not always possible to get a judge in Cham bers: Freason v. Loe, 26 W. R. 138; A (*) R. S. C., Order II. r. 8. mistake in the teste is a mere imperfection and not fatal: Wesson Brothers v. Stalker, 47 L. T. 444. Indorse ment on writ. The indorsement of claim in which, however, it is not essential to set forth the precise ground of complaint or precise relief sought, must be made on every writ of summons before it is issued (1). The other indorsements which must or may be made on a writ are as follows: If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, e.g., as a trustee or executor, the indorsement must shew in what capacity the plaintiff or defendant sues or is sued (2). In Probate actions the indorsement must shew whether the plaintiff claims as creditor, executor, administrator, residuary legatee, legatee, next of kin, heir-at-law, devisee, or in any and what other character (3). If the action is for a debt or liquidated demand in money arising upon a simple contract or on a specialty, or on a statute where the sum sought to be recovered is a fixed sum and not a penalty, or on a guaranty when the claim against the principal is in respect of a liquidated demand only, or on a trust, or for the recovery of land by landlord against tenant, there may be a special indorsement stating the remedy or relief claimed. If the action is for a debt or liquidated demand only, the indorsement must state the amount on payment of which the action will be stayed. If the plaintiff desires an account in the first instance he must ask for it by the indorsement on his writ (4). See further as to the specially indorsed writ, post, p. 724, et seq. The name and address of the plaintiff (5) and his solicitor (if he brings his action by a solicitor) must be indorsed on the writ or other document by which the proceedings are commenced, and also an address for service within three miles of the Royal Courts of Justice in the Strand. If the solicitor is only an agent, the name and address of the principal solicitor must also be given. It may here be noticed that in order to facilitate the (1) R. S. C., Order 1. r. 1. Whenever a statement of claim is delivered the plaintiff may by it "alter, modify, or extend" his claim without amending the indorsement on his writ: R. S. C., Order xx. r. 4. When, however, the defendant does not appear, and a statement of claim is only delivered by filing (post, p. 723), the plaintiff cannot obtain judgment in default of appearance for more than he has claimed by his writ: see Gee v. Bell, 33 Ch. D. 160; Kingdon v. Kirk, 37 Ch. D. 141. prosecu (2) R. S. C., Order II. r. 4. () R. S. C., Order . rr. 6, 7, 8. The specially indorsed writ is itself a statement of claim, and therefore in this case no further statement of claim can be delivered: R. S. C., Order xx. r. 1 (a); see Veale v. Automatic, &c., Co., 18 Q. B. D. 631. (5) The plaintiff's place of residence must he given: Story v. Rees, 24 Q. B. D. 748. tion in the country districts of such proceedings as might be more District speedily, cheaply, and conveniently carried on therein, provision registries. was made under the 60th section of the Judicature Act (1) for the establishment of district registries, and the conduct there of all proceedings in an action in the High Court other than the trial. In certain cases it is essential to give notice before commencing action. The principal cases where notice is necessary are in actions against justices of the peace for things done by them in the execution of their duty, and in actions against officers of the army, navy, marines, customs, or excise, for what they have done in their offices. The notice must be given one calendar month before the commencement of the action (2). (1) Judicature Act, 1873, s. 60; Judicature Act, 1875, s. 13; Judicature Act, 1881, s. 22; R. S. C., 1883, Order xxxv.; the Orders of Council, 12th Aug. 1875; 11th Aug. 1884 (W. N. 1884, p. 425); and as to the address for service in these cases, see R. S. C., 1883, Order IV. r. 3; and as to the statement with regard to entry of appearance, which must be on the face of the writ, Order v. rr. 3 and 4. An action if affecting land ought to be registered as a lis (2) See notes to R. S. C., Order 1. |