FORMS

OF

JUDGMENTS AND ORDERS.

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. 160; and appeals: Re Fawsitt, 30 Ch. D. 231, C. A.); and see Dan. 44, 45.

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; see O. LII, 14.

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, 1873-1894, 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; D. C. F. 150.

1. Order to renew Writ-O. VIII, 1; lxiv, 7.

UPON the application &c., It is ordered that the writ issued in this day of be, on or before &c., renewed against the Defts P. and M. for (six) months from the date of such renewal; And

action on the

VOL. I.

B

the costs of this application are to be costs in this action.—Bateman v. Kenrick, M. R., at Chambers, 3 May, 1877, A. 913.

See R. S. C., App. K., No. 2.

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 or master.

2. Joinder of other Claims with Claim for Recovery of LandO. XVIII, 2.

UPON motion [or upon 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.

NOTES.

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. D. 387, C. A.

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. D. 63, C. A.; 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.

A female Plt should state her description as a married woman, wife of spinster or widow, in the title of a writ or originating summons before issue: Re Poinons, W. N. (91) 138; and a female Deft should be similarly described: Tofield v. Roberts, W. N. (94) 74.

An incorrect statement of the Deft's address in the writ of summons will not necessarily vitiate the writ: Smith v. Hammond, (1896) 1 Q. B. 571. The residential, and not the business, address should be stated: Stoy v. Rees, 24 Q. B. D. 748.

As to form of writ of summons, see Dan. 266 et seq.; and as to issue thereof, Ibid. 271 et seq.

O. VIII, 1, as to renewal of writs, applies to writs issued before the Jud. Acts: Hume v. Somerton, 25 Q. B. D. 239. As to renewal of writs, see Dan. 274; D. C. F. 135. As to amendment of writ, Dan. 275 et seq. As to concurrent writs, see O. VI; Dan. 273.

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; 46 L. J. Ch. 316; 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. 98, C. A.; 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. D. 644, C. A. 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. And a claim for an interlocutory injunction, as a substitute for damages, between writ and trial may be joined without leave: Read v. Wotton, (1893) 2 Ch. 171.

And where the Plt alleged a mortgage to be invalid, he was held entitled without leave to ask for possession of the land in the alternative, immediate possession if the mortgage was invalid, and possession on payment of what should be found due if the mortgage was valid: Hunt v. Worsfold, (1896) 2 Ch.224.

Leave to join causes of action should be obtained before the writ is issued: Pilcher v. Hinds, 11 Ch. D. 905, C. A.; Clark v. Wray, 31 Ch. D. 68; but see Wilmott v. Freehold House, &c. Co., 51 L. T. 552; Rushbrooke v. Farley, 54 L. J. Ch. 1079; 52 L. T. 572; 33 W. R. 557. Where the Deft has entered an appearance to the writ, it is not too late for him to take the objection to the irregularity: Hunt v. Worsfold, (1896) 2 Ch. 224, treating Mulckern v. Doerks, 53 L. J. Q. B. 526; 51 L. T. 429; as overruled by Wilmott v. Freehold House Property Co., 51 L. T. 552; and Smurthwaite v. Hannay, (1894) A. C.

494.

An original writ of summons, notwithstanding expiration of the twelve months limited by O. VIII, 1, continues effectual for all purposes except service, e.g., for the purpose of an undertaking by Deft's solr to enter an appearance: Re Kerly, Son & Verden, (1901) 1 Ch. 467, C. A.

As to assignment of business among Judges in the Ch. D. see Dan. 26, 27; D. C. F. 30.

CHAPTER II.

SERVICE OF WRIT AND PROCEEDINGS.

1. Order for substituted Service of Writ-0. 1x, 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. 706; Wolverhampton, &c. Banking Co. v. Bond, 29 W. R. 599; 43 L. T. 721. For forms of summons, &c. see D. C. F. 147-149. 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 this order to be inserted in the London Gazette and the Times newspaper.-See 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 Defendant'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. Order for Substituted Service of Writ by Means of Advertisements and through the Post-0. ix, 2.

UPON motion [or upon the application of] the Plt &c., and upon reading &c., Let 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 B. 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.

SCHEDULE.

To B. of &c., E. of &c., and M. of &c.

-

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 publication by advertisement in this form of the said writ of summons and of the said order twice in the - and once in the-newspapers, and the sending a copy of the said writ of summons and a copy of the said order, through the post-office prepaid, in a registered envelope addressed to each of you the said B., E. and M., to the following addresses, that is to say, as to the said B. to &c., and as to the said E. and M. to &c., 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.

5. The like-of Originating Summons by Service on Solicitors and by Means of Advertisements and through the Post-O. LXVII, 6. UPON motion [or upon the application] &c., This Court [or the Judge] doth order that service of the originating summons issued in this action on the day of, 1887, and amended on the day of -, 1887, and re-amended on the day of, 1887, by leaving a copy of the same, together with a copy of this order at the office of Messrs. G., solicitors, situate at &c., and by sending a copy of the said re-amended originating summons and a copy of this order in a registered letter addressed to the Deft E, C. to the care of Messrs. G. &c., and by