CHAPTER I.

INSTITUTION OF PROCEEDINGS.

By the Jud. Act, 1873, s. 100, action is defined to mean "a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of Court."

By O. II. 1, every action in the High Court is to be commenced by writ of summons; but by O. LV. 3, 5a, provision is made for the commencement of certain proceedings (as to which v. inf. Chap. XVIII., “CHAMBERS") by originating summons, and such proceedings have been held to be "actions (for the purposes of motions: Gee v. Bell, 35 Ch. D. 100; and appeals: Re Fawsitt, 30 Ch. Div. 231).

A summons under O. LV. 1, 2, 13, and 13a, or otherwise under any statutory jurisdiction (though in fact a summons originating proceedings), is, for the purposes of appealing, not an action, but a summons in "a matter not being an action" within the meaning of O. LVIII. 9: Re Baillie, 4 Ch. D. 785; Re Blyth, 13 Ch. D. 416; Re Arbenz, 35 Ch. D. 257.

O. II. 4, which prescribes "that 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 leave of the Court or a Judge," is given effect to by regulations adopted at Chambers, under which the Judge's leave to issue the writ is inscribed thereon and no order is drawn up: Stigand v. S., 19 Ch. D. 460. Where the application is made at the same time as the application for leave to serve, an affidavit is necessary (O. XI. 2, 4), and it is to be entitled as follows: "In the matter of the Judicature Acts of 1873-1884, In the matter of an intended action between A. B. Plt, and C. D. and others Defts." See Young v. Brassey, 1 Ch. D. 278.

1. Order to renew Writ―O. VIII. 1; LXIV. 7.

UPON the application &c., It is ordered that the writ issued in this action on the day of be, on or before &c., renewed against the Defts P. and M. for (six) months from the date of such renewal; And the costs of this application are to be costs in this action.-Bateman v. Kenrick, M. R. at Chambers, 3 May, 1877, A. 913.

The order may be obtained in Chambers ex parte, and need not be drawn up unless other directions made at the same time render it necessary, but a memorandum under O. LII. 14, may be obtained from a registrar, master, or chief clerk.

2. Joinder of other Claims with Claim for Recovery of Land

O. XVIII. 2.

UPON motion [or the application], &c., who alleged that the Plts have a cause of action in respect of the conveyance of certain trust property of &c., vested in the Deft, and a cause of action in respect of the delivery up of possession of &c., This Court doth order that the Plts be at

liberty to join the said causes of action.-Manisty v. Kenealy, V.-C. H., 11 Jan. 1876, B. 25; 24 W. R. 918; Leach v. Jay, M. R. at Chambers, 16 Feb. 1877, B. 308.

An action for relief, which could formerly only have been given by the Court of Chancery, cannot be maintained if the subject-matter is below the value of 107., the old rule in this respect being still in force: Westbury Sanitary Authority v. Meredith, 30 Ch. Div. 387.

The issue of a writ of summons not being a judicial act, the Court will inquire at what period of the day the writ was issued: Clarke v. Bradlaugh, 8 Q. B. Div. 63; and see Warne v. Lawrence, 34 W. R. 452.

As to the computation of time generally, see In re Railway Sleepers Supply Co., 29 Ch. D. 204.

O. VIII. 1, as to renewal of writs, applies to writs issued before the Jud. Acts: Hume v. Somerton, 25 Q. B. D. 239.

The Court or a Judge is empowered by O. LXIV. 7, to enlarge the time for renewing a writ of summons: Re Jones, Eyre v. Cox, 25 W. R. 303; but enlargement will not be granted so as to revive a claim barred by the Statutes of Limitation: Doyle v. Kaufman, 3 Q. B. D. 7; Hewett v. Barr, (1891) 1 Q. B. (C. A.) 98; unless, perhaps, under exceptional circumstances: S. C., per Kay, L. J; but where the original writ had been renewed, time for issue of a concurrent writ was enlarged, though the operation of the statutes might be thereby affected: Smalpage v. Tonge, 17 Q. B. Div. 644.

By O. XVIII. 2, no cause of action is, unless with leave of the Court or a Judge, to be joined with an action for the recovery of land, except claims for mesne profits, or arrears of rent, &c., or damages for breach of any contract under which the premises are held, or for injury to the premises. But an action for foreclosure or redemption, and delivery of possession, is not (since December, 1885), to be deemed an action for the recovery of land.

By" action for the recovery of land is meant an action to recover possession of land, not an action merely to establish title: Gledhill v. Hunter, 14 Ch. D. 492; not following Whetstone v. Dewis, 1 Ch. D. 99; but where possession is claimed, a claim for a declaration of title, not involving a new cause of action, may be joined without leave: Ibid. Claims for declaration of title, that a lease was granted by mistake, for recovery of rents and profits, a receiver and possession, were held to be one action for recovery of land: Ibid.

The rule applies to a counter-claim for the recovery of land: Compton v. Preston, 21 Ch. D. 138.

Leave has been granted to join a claim for delivery of a title deed: Cook v. Enchmarch, 2 Ch. D. 111; and, under special circumstances, a claim for admon: Kitching v. K., 24 W. R. 901.

Claims for recovery of possession for breach of covenant, and for injunction to restrain future breaches, cannot be joined without leave: Hambling v. Wallani, W. N. (89) 133.

A writ claiming quiet possession and an injunction restraining interference with such possession is not within the rule: Kendrick v. Roberts, 30 W. R. 365.

Leave to join causes of action should be obtained before the writ is issued: Pilcher v. Hinds, 11 Ch. Div. 905; Clark v. Wray, 31 Ch. D. 68; but see Wilmott v. Freehold House, &c. Co., 51 L. T. N.S. 552; Rushbrooke v. Farley, 54 L. J. Ch. 1079. Where leave has not been obtained, appearance by the other party, with knowledge of the irregularity, is a "fresh step" within O. LXX. 2, and a waiver: Mulckern v. Doerks, 53 L. J. Q. B. 526.

CHAPTER II.

SERVICE OF WRIT AND PROCEEDINGS.

1. Order for substituted Service of Writ-0. Ix. 2; X.; LXVII. 6.

UPON the application of &c., and upon reading an affidavit &c., It is ordered that service of the writ of summons issued in this action on the day of, by leaving a copy thereof, together with a copy of this order, at the place of business of the Deft H., situate at &c. [and, if so, at his place of residence situate at &c.], be deemed good service of the said writ upon the said Deft H.

For orders for substituted service in the case of an absconding Deft within the jurisdiction, see Cook v. Dey, V.-C. H., 16 Feb. 1876, A. 227, 2 Ch. D. 218; by advertisement ex jur., Hartley v. Dilke, V.-C. M., 19 Dec. 1876, A. 2081; 35 L. T. N.S. 706; Wolverhampton, &c. Banking Co. v. Bond, 29 W. R. 599.

A Deft, failing to appear after substituted service, cannot claim as of right to be allowed to defend: Watt v. Barnett, 3 Q. B. D. 363.

2. The Like-at each of several Leasehold Houses.

UPON motion &c., Let service of the writ of summons issued in this action, by leaving a copy thereof, together with a copy of this order, at each of the said leasehold houses, be deemed good service on the Deft, and the Plt is within fourteen days from the date of this order to cause a copy of the said writ, and of this order, to be inserted in the London Gazette and the Times newspaper.-Crane v. Jullion, V.-C. Hall, 17 Feb. 1876, A. 260; S. C., 2 Ch. D. 220.

This order first directs a proper person to be appointed to receive rents &c., of certain leasehold houses (describing them), and then proceeds as above.

3. The Like-on Deft's Solicitors in a former Matter.

UPON the application of the Plts, and upon hearing &c., and upon reading an affidavit &c., It is ordered that service of the writ of summons issued in this action on &c., together with a copy of this order, on A. and B., of the firm of Messrs. & Co., of, solicitors, or one of them, be deemed good service of the said writ of summons upon the Deft O.

For like order for service on Deft's wife, see Palmer v. P., V.-C. H. at Chambers, 7 Dec. 1878, B. 2076; and for like order for service upon the

managing clerk and upon the solicitors of a Deft in India, with six weeks for appearance, see Armitage v. Fitzwilliam, W. N. (75) 238.

4. Substituted Service of Writ by Means of Advertisements and through the Post-0. Ix. 2.

UPON the application of the Plt &c., and upon reading &c., It is ordered that the publication by advertisement, in the form set forth in the Schedule hereto, of the writ of summons issued in this action on the day of, and of this order, twice in the — and once in the newspapers, and the sending a copy of the said writ of summons, and a copy of this order, through the post-office prepaid, in a registered envelope addressed to each of the above-named Defts, to the following addresses, that is to say, as to the Deft H. to &c., and as to the Defts E. and M. to &c., be deemed good service of the said writ on the said Defts respectively.

To A. B., of &c.

SCHEDULE.

Take notice that on the day of a writ of summons was issued in the action of A. v. B., 1890, A. 316, which claimed [set out indorsement of writ]; And take notice that by an order dated &c., It was ordered that the service of the said writ of summons, by leaving a copy thereof, together with a copy of the said order, at the office of Messrs. X., situate at &c., and the sending a copy of the said writ and a copy of the said order in a registered letter addressed to you to the care of &c., at &c., and by publication of this notice once in the London Gazette and once in the Times and once in the Daily News newspapers, should be deemed good service of the said writ of summons upon you; And take notice that in default of your causing an appearance to be entered for you at the Central Office, Royal Courts of Justice, London, within eight days after the last of such advertisements, the Plt may proceed in the said action, and judgment may be given in your absence.

Form of Advertisement of Originating Summons.

SCHEDULE.

To A. B., of &c.

Take notice that on the

day of

an originating summons was issued in the action of B. v. P., 1887, B. 3508, and was re-amended on the day of --1887; That by such summons as re-amended A. P. and yourself, as executrix of your late husband, F. C., were required to attend at the Chambers of the Judge upon the application of the Plt R. B.; That the security by deposit of &c., and the charge by an order dated &c., made in an action of B. v. P., 1885, B. 4606, created in favour of the Plt on 500 shares of the Deft A. P. in The &c. Co. might be enforced by sale of the said shares or by foreclosure; And that all consequential directions might be given.

And take notice that by an order of Mr. Justice S., dated &c., It

was ordered that the service of the said summons by leaving the same, together with a copy of the said order, at the office of Messrs. G., solrs, situate at &c., and the sending a copy of the said re-amended originating summons and a copy of the said order in a registered letter addressed to you to the care of &c., at &c., and by publication of this notice once in the London Gazette, once in the Times, and once in the Daily News newspapers, should be deemed good service of the said re-amended originating summons upon you.

And take notice, that Mr. Justice S., the Judge to whom the said action is assigned, has fixed Tuesday, the day of, at 11.30, as the time at which the said A. P. and you are to attend at his Chambers in the Royal Courts of Justice upon such application; And that if you do not then attend either in person or by your solr such order will be made and proceedings taken as the Judge may think just and expedient; And before you can be heard in Chambers you must enter an appearance at the Central Office in the Royal Courts of Justice, London, and give notice of such appearance.—Bowman v. Pleydell, Stirling, J., 29 July, 1887, A. 2221.

And see form R. S. C., App. K., No. 21.

When leave is given at Chambers to issue a writ for service out of the jurisdiction, the leave to serve notice thereof, and the necessary directions as to such service, are at the same time inscribed on the writ: see Stigand v. S., 19 Ch. D. 460.

5. Leave to serve Writ or Notice out of the Jurisdiction-0. xI. 2, 4, 6.

UPON the application of &c., who alleged that, pursuant to leave granted on &c., the Plt has issued a writ of summons against the above-named Deft, and that he has a good cause of action against the said Deft, in respect of certain premises situate at &c., and that the said Deft is [or is not] a British subject, and is resident, or may probably be found at, in the (kingdom) of -, as by the affidavit of &c. appears, and upon reading the said affidavit, It is ordered that the Plt be at liberty to serve the said writ [or, if not a British subject, notice of the said writ], together with a copy of this order, on the Deft or elsewhere in the said kingdom of and the time within -, at which the Deft is to cause an appearance to be entered to the said writ is to be days from such service.-See Pattison v. Stockwell, V.-C. M. at Chambers, 15 June, 1878, B. 1202.

;

For table, as settled by the Registrars, of times to be limited for entering appearance after service out of the jurisdiction of writ or notice of writ, see Ann. Pr.

As a general rule double the time ordinarily taken to reach the Deft's place of residence is allowed for appearing.

For order where defendant, ex jur. had been added in the District Registry, see Re Chambers, Hutchinson v. Town, 19 Jan. 1883, A. 382.

6. Leave to serve Writ in Scotland or Ireland.

UPON the application of &c. [usual allegation that Deft is a British ubject, and resident in Scotland or Ireland], and it appearing to the