New Rules of the Common Law Courts. GENERAL RULES OF THE COURTS OF COMMON LAW. Hilary Term, 1853. Whereas the practice of the Courts of Queen's Bench, Common Pleas, and Exchequer, in civil actions, in respect of which the said Courts possess a common jurisdiction, has been to a great extent superseded or altered by the Common Law Procedure Act, 1852, and it is expedient that the written rules of practice of the said Courts should be consolidated and rendered uniform: It is ordered, that all existing written rules of practice in any of the said Courts in regard to such civil actions, save and except as regards any step or proceeding heretofore taken, shall be and the same are hereby annulled, and that the practice to be observed in the said Courts with respect to the matters hereafter mentioned shall be as follows; that is to say, 195 at the same time, the names of all the defendants so appearing shall be inserted in one appearance. ATTORNEY AND GUARDIAN. 3. An attorney not entering an appearance in pursuance of his undertaking shall be liable to an attachment. 4. No attorney shall be changed without the order of a Judge. 5. A special admission of prochein amy, or guardian, to prosecute or defend for an infant, shall not be deemed an authority to prosecute or defend in any but the particular action or actions specified. JOINDER OF PARTIES. 6. Whenever a plaintiff shall amend the writ after notice by the defendant, or a plea in abatement of a non-joinder by virtue of the Common Law Procedure Act, 1852, sect. 36, he shall file a consent in writing of the party or parties whose name or names are to be added, together with an affidavit of the handwriting, and give notice thereof to the defendant, unless the filing of such consent be dispensed with by order of the Court or a Judge. PLEADINGS. 7. No side bar rule for time to declare shall be granted. 8. The defendant shall not be at liberty to waive his plea, or enter a relicta verificatione 4 0 0 after a demurrer, without leave of the Court or a Judge, unless by consent of the plaintiff or his attorney. £2 14 0 3 2 In Actions under 201. In town causes.... In country or agency cases (including mileage). Where the plaintiff's attorney, at the time of issuing the writ, claims more than the sums fixed as above, the indorsement on the writ of summons in respect of costs shall be as follows: "Such sum as shall be allowed on taxation for costs." And in case the plaintiff shall be found not entitled to more costs than such fixed sums, or if more than one-sixth shall be disallowed, the plaintiff's attorney shall pay the costs of taxation. So if the attorney has indorsed on the writ one of the fixed sums for the costs of judgment, and claims more costs on signing judgment, and on taxation shall be found not entitled to more than such sum, or if more than one-sixth be taken off on taxation, the plaintiff's attorney shall in like manner pay the costs of taxation. APPEARANCE. 2. If two or more defendants in the same action shall appear by the same attorney and 10. Where a defendant shall plead a plea of judgment recovered, he shall in the margin of such plea state the date of such judgment, and if such judgment shall be in a Court of record, the number of the roll on which such proceedings are entered, if any; and, in default of his so doing, the plaintiff shall be at liberty to sign judgment as for want of a plea; and in case the same be falsely stated by the defendant, the plaintiff, on producing a certificate from the proper officer or person having the custody of the records or proceedings of the Court where such judgment is alleged to have been recovered, that there is no such record or entry of a judgment as therein stated, shall be at liberty to sign judgment as for want of a plea. 196 New Rules of the Common Law Courts. PAYMENT OF MONEY INTO COURT. 11. No affidavit shall be necessary to verify the plaintiff's signature to the written authority to his attorney to take money out of Court, unless specially required by the Master. in the margin of the books delivered, or on 17. When there shall be a demurrer to part 12. When money is paid into Court in respect of any particular sum or cause of action in the declaration, and the plaintiff accepts the same in satisfaction, the plaintiff, when the costs of the cause are taxed, shall be entitled to the costs of the cause in respect of that part of his claim so satisfied, up to the time the money is so paid in and taken out, whatever may be the result of any issue or issues in respect of other 18. No venue shall be changed without a causes of action, and if the defendant succeeds in defeating the residue of the claim, he will be special order of the Court or a Judge, unless entitled to the costs of the cause in respect of by consent of the parties. Instructions for such defence, commencing at " Plea," but not before. 13. Where money is paid into Court in several actions which are consolidated, and the plaintiff, without taxing costs, proceeds to trial on one and fails, he shall be entitled to costs on the others up to the time of paying money into Court. DEMURRER. 14. The party demurring may give a notice to the opposite party to join in demurrer in four days, which notice may be delivered separately or indorsed on the demurrer, otherwise judgment. 15. No motion or rule for a concilium shall be required; but demurrers as well as all special cases, special verdicts, and appeals from county courts, shall be set down for argument in the special paper at the request of either party, four clear days before the day on which the same are to be argued, and notice thereof shall be given forthwith by such party to the opposite party. VENUE, CHANGE OF. PARTICULARS OF DEMAND OR SET OFF. And to secure the 19. With every declaration (unless the writ has been specially indorsed under the provisions contained in the 25th section of the Common Law Procedure Act, 1852,) delivered or filed, containing causes of action such as those set forth in schedule B. of that Act, and numbered from 1 to 14, inclusive, or of a like nature, the plaintiff shall deliver or file full particulars of his demand under such claim, where such particulars can be comprised within three folios; and where the same cannot be comprised within three folios, he shall deliver or file such a statement of the nature of his claim, and the amount of the sum or balance which he claims to be due, as may be comprised within that number of folios; and with every plea of set-off containing claims of a similar nature as those in respect of which a plaintiff is required to deliver or file particulars, the defendant shall in like manner deliver particulars of his set-off. delivery or filing of particulars in all such cases, it is ordered, that if any such declaration shall be delivered or filed, or any plea of 16. Four clear days before the day appointed such statement as aforesaid, and a Judge shall for argument the plaintiff shall deliver copies of set-off delivered, without such particulars or the demurrer book, special case, special verdict, or appeal cases, with the points intended to be afterwards order a delivery of particulars, the insisted on, to the Lord Chief Justice of the plaintiff or defendant, as the case may be, shall Queen's Bench or Common Pleas, or Lord Chief not be allowed any costs in respect of any Baron, as the case may be, and the senior Puisne summons for the purpose of obtaining such Judge of the Court in which the action is order, or of the particulars he may afterwards deliver; and a copy of the particulars of the brought; and the defendant shall deliver copies demand, and set-off, shall be annexed by the to the other two Judges of the Court next in seniority; and in default thereof by either party, plaintiff's attorney to every record at the time the other party may on the day following de- it is entered with the proper officer. 20. A summons for particulars, and order liver such copies as ought to have been so delivered by the party making default; and the thereon, may be obtained by a defendant beparty making default shall not be heard until fore appearance, and may be made, if the he shall have paid for such copies, or deposited Judge think fit, without the production of any pay for such affidavit. with the Master a sufficient sum to copies. If the statement of the points have not been exchanged between the parties, each party shall, in addition to the two copies left by him, deliver also his statement of the points to the other two Judges, either by marking the same 21. A defendant shall be allowed the same time for pleading after the delivery of particulars under a Judge's order which he had at the return of the summons, unless otherwise provided for in such order. DOCUMENTS; SUBPOENA TO PRODUCE RE- 23. To entitle a plaintiff to discontinue after EVIDENCE; ADMISSION AND INSPECTION OF plea pleaded, it shall not be necessary to obtain the defendant's consent, but the rule shall contain an undertaking on the part of the plaintiff to pay the costs, and a consent that if they are not paid within four days after taxation defendant shall be at liberty to sign judgment of non pros. 29. The form of notice to admit documents referred to in the Common Law Procedure Act, 1852, section 117, may be as follows:In the Q. B. C. P. or Exchequer. J A. B. v. C. D. Defendant Take notice, that the {Plaintiff } in this cause proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the (Defendant, } his Plaintiff, attorney or agent, at on between the hours of f Defendant Plaintiff and the is hereby required, within forty-eight hours from the said documents as are specified to be originals last-mentioned hour, to admit that such of the were respectively written, signed, or executed, as they purport respectively to have been; that such as are specified as copies are true copies; and such documents as are stated to have been served, sent, or delivered, were so served, sent, or delivered respectively; saving all just exceptions to the admissibility of all such documents as evidence in this cause. Dated, &c. To E. F., Attorney, or (Defendant) Plaintiff. Plaintiff G. H., Attorney } 27. Every attorney or other person who shall prepare any warrant of attorney to confess judgment, which is to be subject to any defeasance, shall cause such defeasance to be written on the same paper or parchment on [Here describe the documents, the manner which the warrant is written, or cause a memo- of doing which may be as follows:] or["Agent "] for ORIGINALS. Description of Documents. Deed of Covenant between A. B. and C. D. 1st part; and E. F. 2d part Indenture of Release between A. B., C. D., 1st part, &c. Policy of Insurance on Goods by ship Isabella on voyage from Oporto Date. 1st January, 1848. 1st February, 1848. 2d February, 1848. 1st March, 1848. 3d December, 1847. Memorandum of Agreement between C. D., Captain of said Ship, and E. F. and} 1st January, 1848. Bill of Exchange for 1001. at Three Months, drawn by A. B. on and accepted by C. D., endorsed by E. F. and G. H. unless otherwise ordered by the Court or a Judge. 30. In all cases of trials, writs of inquiry, or inquisitions of any kind, either party may call on the other party, by notice, to admit docu35. The expression "Short notice of trial," ments in the manner provided by and subject or "Short notice of inquiry," shall in all cases to the provisions of the Common Law Proce- be taken to mean four days. dure Act, 1852; and in case of the refusal or neglect to admit after such notice given, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial or inquisition the Judge or presiding officer shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is in the opinion of the Master a saving of expense. 31. An order upon the lord of a manor, to allow the usual limited inspection of the Court rolls, on the application of a copyhold tenant, may be absolute in the first instance, upon an affidavit that the copyhold tenant has applied for and been refused inspection. 32. No subpoena for the production of an original record shall be issued unless a rule of Court or the order of a Judge shall be produced to the officer issuing the same, and filed with him, and unless the writ shall be made conformable to the description of the document mentioned in such rule or order. 33. All depositions of witnesses taken under the order of a Judge, rule of Court, or writ of commission, shall be returned to and filed in the office of the Masters of the Court in which the action or proceeding is pending. TRIAL, NOTICE OF TRIAL, AND INQUIRY. 34. Notice of trial or inquiry, and of continuance of trial or inquiry, shall be given in town; but countermand of notice of trial or inquiry may be given either in town or country, nued to any sitting in or after term, on giving 36. Notice of trial or inquiry may be contitime mentioned in the notice of trial or inquiry, a notice of continuance four days before the unless short notice of trial or inquiry has been given, in which cases two days' previous notice the Court, or a Judge, or by consent. shall be sufficient, unless otherwise ordered by 37. Countermand of notice of inquiry shall be given four days before the day of inquiry mentioned in the notice, unless short notice of inquiry has been given, and then two days before such day, unless otherwise ordered by the Court, or a Judge, or by consent. 38. On a replication or other pleading denying the existence of a record pleaded by the defendant, a rule for the defendant to produce the record shall not be necessary or used, and instead thereof a four days' notice shall be substituted, requiring the defendant to produce the record, otherwise judgment. 39. The costs of the day for not proceeding to trial or to execute a writ of inquiry may be obtained by a side bar rule, on the usual affidavit. 40. In all cases where the plaintiff's pleading is in denial of the pleading of the defendant, without joining issue, the plaintiff's attorney may give notice of trial at the time of delivering his replication or other subsequent pleading; and in case issue shall afterwards be joined, such notice shall be available; but if issue be not joined on such replication, or other subsequent pleading, and the plaintiff shall sign judgment for want thereof, and forthwith give notice of executing a writ of inquiry, such notice shall operate from the time that notice New Rules of the Common Law Courts. 199 of trial was given as aforesaid; and in all application of the party, without a motion for cases where the defendant demurs to the plain- that purpose. tiff's declaration, replication, or other subsequent pleading, the defendant's attorney, or the defendant, if he plead in person, shall be obliged to accept notice of executing a writ of inquiry on the back of the joinder in demurrer; and in case the defendant pleads a plea in bar or rejoinder, &c., to which the plaintiff demurs, the defendant's attorney, or the defendant, if he plead in person, shall be obliged to accept notice of executing a writ of inquiry on the back of such demurrer. 41. Notice of a trial at bar shall be given to the Masters of the Court before giving notice of trial to the party. 42. No trial by proviso shall be allowed in the same Term in which the default of the plaintiff has been made, and no rule for a trial by proviso shall be necessary. 43. All causes to be entered for trial in London and Middlesex shall be entered as follows; that is to say, if notice of trial shall be given for any sitting within Term, two days before the day of sitting; and if for a sitting after Term, before eight o'clock, P.M., of the day before the first day of such sitting, and if the same shall not be so entered for such sittings respectively, a ne recipiatur may be entered. JURY AND VIEW. 44. No rule for a special jury shall be granted on behalf of any defendant (or plaintiff in replevin), except on an affidavit, either stating that no notice of trial has been given, or if it has been given, then stating the day for which such notice has been given; and in the latter case, no such rule is to be granted unless such application is made for it more than six days before that day; provided that a Judge may, on summons, order a rule for a special jury to be drawn up at any time. 45. No cause shall be tried by a special jury in Middlesex or London, unless the rule for such special jury be served, and the cause marked in the Associate's book as a special jury cause, on or before the day preceding the day appointed in Middlesex and London respectively for the trial of special juries. 46. There shall be no rule for the sheriff to return a good jury upon a writ of inquiry, but an order shall be made by a Judge upon summons for that purpose. 47. Sheriffs, other than the sheriffs of London and Middlesex, shall, seven days before the commission day, make and keep at their offices, for inspection, a printed copy of the panel of the special jurymen to try the special jury causes at the assizes, as directed by the Common Law Procedure Act, 1852; but such special jury need not be summoned, except notice be given as provided for by the 112th section of the said Act. 48. The rule for a view may in all cases be drawn up by the officer of the Court, on the 49. Upon any application for a view, there shall be an affidavit, stating the place at which the view is to be made, and the distance thereof from the office of the under-sheriff, and the sum to be deposited in the hand of the undersheriff shall be 107. in case of a common jury, and 167. in case of a special jury, if such distance do not exceed five miles, and 157. in case of a common jury, and 217. in case of a special jury, if it be above five miles. And if such sum shall be more than sufficient to pay the expenses of the view, the surplus shall forthwith be returned to the attorney of the party who obtained the view; and if such sum shall not be sufficient to pay such expenses, the deficiency shall forthwith be paid by such attorney to the under-sheriff. And the undersheriff shall pay and account for the money so deposited according to the scale following; (that is to say,) For travelling expenses to the under- distance does not exceed five miles Where such distance exceeds five £ s. d. . 1 1 0 . 2 2 0 1 1 0 Fee to each common juryman, per 0 5 0 To the bailiff for summoning each 026 NEW TRIALS, MOTIONS IN ARREST OF JUDG- 50. No motion for a new trial, or to enter verdict or nonsuit, motion in arrest of judgment, or for judgment non obstante veredicto, shall be allowed after the expiration of four days from the day of trial, nor in any case after the expiration of the Term, if the cause be tried in Term, or after the expiration of the first four days of the ensuing term when the cause is tried out of Term, unless entered in a list of postponed motions by leave of the Court. |