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New Rules of the Common Law Courts.

195

GENERAL RULES OF THE COURTS

OF COMMON LAW.

at the same time, the names of all the defendants so appearing shall be inserted in one appearance.

Hilary Term, 1853.

ATTORNEY AND GUARDIAN. Whereas the practice of the Courts of Queen's 3. An attorney not entering an appearance Bench, Common Pleas, and Exchequer, in civil in pursuance of his undertaking shall be liable actions, in respect of which the said Courts pos- to an attachment. sess a common jurisdiction, has been to a great 4. No attorney shall be changed without the extent superseded or altered by the Common order of a Judge. Law Procedure Act, 1852, and it is expedient

5. A special admission of prochein amy, or that the written rules of practice of the said shall not be deemed an authority to prosecute

| guardian, to prosecute or defend for an infant, Courts should be consolidated and rendered or defend in any but the particular action or uniform: It is ordered, that all existing written actions specified. rules of practice in any of the said Courts in regard to such civil actions, save and except as

JOINDER OF PARTIES. regards any step or proceeding heretofore taken, shall be and the same are hereby annulled, and 6. Whenever a plaintiff shall amend the writ that the practice to be observed in the said after notice by the defendant, or a plea in

abatement of a non-joinder by virtue of the Courts with respect to the matters hereafter

Common Law Procedure Act, 1852, sect. 36, mentioned shall be as follows; that is to say, 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, WRIT OF SUMMONS.

and give notice thereof to the defendant, unless

the filing of such consent be dispensed with by 1. When a writ of summons is indorsed in order of the Court or a Judge. the special form mentioned in sec. 27 of the Common Law Procedure Act, 1852, the following are the amounts which may be indorsed by

PLEADINGS. the plaintiff's attorney or agent upon the writ for costs; and to include mileage:

7. No side bar rule for time to declare shall In Actions above 201.

be granted. In town causes..................£3 8 0 8. The defendant shall not be at liberty to In country or agency cases (including

waive his plea, or enter a relicta verificatione mileage). .................... 4 0 0 after a demurrer, without leave of the Court or In Actions under 201.

a Judge, unless by consent of the plaintiff or In town causes.................. £2 14 0 his attorney. In country or agency cases (including

9. In case the time for pleading to any mileage). ......

3 2 0 declaration or for answering any pleadings, Where the plaintiff's attorney, at the time of Au

shall not have expired before the 10th day of issuing the writ, claims more than the sums plead reply. &c.. shall have the same number

1 August in any year, the party called upon to fixed as above, the indorsement on the writ off dove summons in respect of costs shall be as follows: October, as if the declaration or preceding plead

of of days for that purpose after the 24th day of “ Such sum as shall be allowed on taxation for ind costs.” And in case the plaintiff shall be found

oping had been delivered or filed on the 24th of

October. not entitled to more costs than such fixed sums, or if more than one-sixth shall be disallowed,

od 10. Where a defendant shall plead a plea of the plaintiff's attorney shall pay the costs of judging

costs of judgment recovered, he shall in the margin of taxation. So if the attorney has indorsed on such plea state the date of such judgment, and the writ one of the fixed sums for the costs of if such judgment shall be in a Court of record, judgment, and claims more costs on signing the

to the number of the roll on which such proceedjudgment, and on taxation shall be found not ings are e

ound not ings are entered, if any; and, in default of his entitled to more than such sum, or if more than so doing, the plaintiff shall be at liberty to sign one-sixth be taken off on taxation, the plaintiff's judgment as for want of a plea; and in case the attorney shall in like manner pay the costs of same be falsely stated by the defendant, the taxation.

plaintiff, on producing a certificate from the proper officer or person having the custody of

the records or proceedings of the Court where APPEARANCE.

such judgment is alleged to have been re

covered, that there is no such record or entry 2. If two or more defendants in the same of a judgment as therein stated, shall be at action shall appear by the same attorney and liberty to sign judgment as for want of a plea.

M 3

196

New Rules of the Common Law Courts.

PAYMENT OF MONEY INTO COURT. in the margin of the books delivered, or on

separate papers. 11. No affidavit shall be necessary to verify 17. When there shall be a demurrer to part the plaintiff's signature to the written authority only of the declaration or other subsequent to his attorney to take money out of Court, un- pleadings, those parts only of the declarations less specially required by the Master.

and pleadings to which such demurrer relates 12. When money is paid into Court in re- shall be copied into the demurrer books; and spect of any particular sum or cause of action if any other parts shall be copied, the Master in the declaration, and the plaintiff accepts the shall not allow the costs thereof on taxation, same in satisfaction, the plaintiff, when the costs either as between party and party, or as between of the cause are taxed, shall be entitled to the attorney and client. 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

VENUE, CHANGE OF. result of any issue or issues in respect of other causes of action, and if the defendant succeeds 18. No venue shall be changed without a 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 1

I by consent of the parties. such defence, commencing at “ Instructions for Plea," but not before. 13. Where money is paid into Court in seve

re- PARTICULARS OF DEMAND OR SET OFF. ral actions which are consolidated, and the plaintiff, without taxing costs, proceeds to trial 19. With every declaration (unless the writ on one and fails, he shall be entitled to costs has been specially indorsed under the provion the others up to the time of paying money sions contained in the 25th section of the into Court.

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 DEMURRER.

nature, the plaintiff shall deliver or file full

particulars of his demand under such claim, 14. The party demurring may give a notice where such particulars can be comprised within to the opposite party to join in demurrer in three folios; and where the same cannot be four days, which notice may be delivered sepa- comprised within three folios, he shall deliver rately or indorsed on the demurrer, otherwise or file such a statement of the nature of his judgment.

| claim, and the amount of the sum or balance 15. No motion or rule for a concilium shall which he claims to be due, as may be combe required; but demurrers as well as all special prised within that number of folios; and with cases, special verdicts, and appeals from county every plea of set-off containing claims of a courts, shall be set down for argument in the similar nature as those in respect of which a special paper at the request of either party, four plaintiff is required to deliver or file particulars, clear days before the day on which the same the defendant shall in like manner deliver parare to be argued, and notice thereof shall be ticulars of his set-off. And to secure the given forth with by such party to the opposite delivery or filing of particulars in all such party.

cases, it is ordered, that if any such declara16. Four clear days before the day appointed to

ntod tion shall be delivered or filed, or any plea of for argument the plaintiff shall deliver copies of so

efset-off delivered, without such particulars or the demurrer book, special case, special verdict, Sy

Predict such statement as aforesaid, and a Judge shall or appeal cases, with the points intended to be

atoh: afterwards order a delivery of particulars, the insisted on, to the Lord Chief Justice of the plan

he 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 brought; and the defendant shall deliver copies

deliver ; and a copy of the particulars of the to the other two Judges of the Court next in

demand, and set-off, shall be annexed by the

plaintiff's attorney to every record at the time seniority; and in default thereof by either party,' the other party may on the day following de

e it is entered with the proper officer. liver such copies as ought to have been so de- ! 20. A summons for particulars, and order livered 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 with the Master a sufficient sum to pay for such affidavit. copies. If the statement of the points have not 21. A defendant shall be allowed the same been exchanged between the parties, each party time for pleading after the delivery of partishall, in addition to the two copies left by him, culars under a Judge's order which he had at deliver also his statement of the points to the the return of the summons, unless otherwise other two Judges, either by marking the same provided for in such order.

New Rules of the Common Law Courts.

197

SECURITY FOR COSTS.

randum in writing to be made on such warrant,

containing the substance and effect of such 22. An application to compel the plaintiff to defeasance. gire security for costs must, in ordinary cases, 28. The costs of filing a Judge's order for be made before issue joined.

judgment against a trader defendant under the Bankrupt Act, shall not be allowed unless

specially ordered by the Judge. DISCONTINUANCE.

23. To entitle a plaintiff to discontinue after EVIDENCE; ADMISSION AND INSPECTION OF plea pleaded, it shall not be necessary to obtain DOCUMENTS ; SUBPENA TO PRODUCE REthe defendant's consent, but the rule shall con- CORDS ; DEPOSITIONS ON INTERROGATORIES. tain an undertaking on the part of the plaintiff to pay the costs, and a consent that if they are 29. The form of notice to admit documents not paid within four days after taxation de- referred to in the Common Law Procedure fendant shall be at liberty to sign judgment of Act, 1852, section 117, may be as follows: non pros.

In the Q. B.)

C.P. A. B. v. C. D.

or Exchequer. J STAYING PROCEEDINGS.

w Plaintiff to

Take notice, that the t Defendants 24. In any action against an acceptor of a this cause proposes to adduce in evidence the bill of exchange, or the maker of a promissory several documents hereunder specified, and note, the defendant shall be at liberty to stay that the same may be inspected by the proceedings on payment of the debt and costs Defendant, 1,. in that action only.

(Plaintiff. 5 mis attorney or agent, on

between the hours of

Defendant li herphy COGNOVIT ; WARRANT OF ATTORNEY; JUDGE's

, and the Plaintiffs

} is hereby ORDER FOR JUDGMENT.

required, within forty-eight hours from the 25. No judgment shall be signed upon any.

last-mentioned hour, to admit that such of the

said documents as are specified to be originals cognovit or any warrant of attorney, without such cognovit or warrant being delivered to

were respectively written, signed, or executed, and filed by the Master, who is hereby ordered a

i as they purport respectively to have been ; to file the same in the order in which it is

that such as are specified as copies are true

copies; and such documents as are stated to received.

have been served, sent, or delivered, were so 26. Leave to enter up judgment on a warrant served, sent, or delivered respectively; saving of attorney above one and under ten years old, all just exceptions to the admissibility of all is to be obtained by order of a Judge made such documents as evidence in this cause. ex parte, and if ten years old or more, upon a Dated, &c. summons to show cause.

To E. F., Attorney, o: G. H., Attorney 27. Every attorney or other person who shall prepare any warrant of attorney to confess

*J for Plaintiff. } judgment, which is to be subject to any de

J Plaintiff feasance, shall cause such defeasance to be or l" Agent J for Defendant. S 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:]

[“ Agent "] for

Defendantı

ORIGINALS.

Description of Documents.

Date.

Deed of Covenant between A. B. and C. D. 1st part; and E. F. 2d part
Indenture of Lease from A. B. to C. 1).
Indenture of Release between A. B., C. D., 1st part, &c.
Letter, Defendant to Plaintiff-
Policy of Insurance on Goods by ship Isabella on voyage from Oporto

to London - -
Memorandum of Agreement between C. D., Captain of said Ship, and

E. F.
Bill of Exchange for 1001. at Three Months, drawn by A. B. on

accepted by C.D., endorsed by E. F. and G. H. -

1st January, 1848.
1st February, 1848.
20 February, 1848.
1st March, 1848.
3d December, 1847.

1st January, 1848. Ist May, 1849.

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30. In all cases of trials, writs of inquiry, or unless otherwise ordered by the Court or a inquisitions of any kind, either party may call | Judge. on the other party, by notice, to admit docu- 35. 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| 36. Notice of trial or inquiry may be conti. neglect to admit after such notice given, the

nued to any sitting in or after term, on giving costs of proving the document shall be paid by

a notice of continuance four days before the the party so neglecting or refusing, whatever i

time mentioned in the notice of trial or inquiry, the result of the cause may be, unless at the

unless short notice of trial or inquiry has been trial or inquisition the Judge or presiding

ng given, in which cases two days' previous notice officer shall certify that the refusal to admit

u shall be sufficient, unless otherwise ordered by was reasonable; and no costs of proving any the

the Court, or a Judge, or by consent. document shall be allowed unless such notice be given, except in cases where the omission to 37. Countermand of notice of inquiry shall give the notice is in the opinion of the Master a be given four days before the day of inquiry saving of expense.

mentioned in the notice, unless short notice of 31. An order upon the lord of a manor, to

inquiry has been given, and then two days beallow the usual limited inspection of the Court

fore such day, unless otherwise ordered by the rolls, on the application of a copyhold tenant,

Court, or a Judge, or by consent. may be absolute in the first instance, upon an 38. On a replication or other pleading denyaffidavit that the copyhold tenant has applied ing the existence of a record pleaded by the for and been refused inspection.

defendant, a rule for the defendant to produce 32. No subpoena for the production of an the record shall not be necessary or used, and original record shall be issued unless a rule of instead thereof a four days' notice shall be Court or the order of a Judge shall be produced substituted, requiring the defendant to produce to the officer issuing the same, and filed with the record, otherwise judgment. him, and unless the writ shall be made con- ' 39. The costs of the day for not proceeding formable to the description of the document to trial or to execute a writ of inquiry may be mentioned in such rule or order.

obtained by a side bar rule, on the usual 33. All depositions of witnesses taken under affidavit. the order of a Judge, rule of Court, or writ of 40. In all cases where the plaintiff's pleadcommission, shall be returned to and filed in ing is in denial of the pleading of the defendthe office of the Masters of the Court in which ant, without joining issue, the plaintiff's attorthe action or proceeding is pending.

ney may give notice of trial at the time of delivering his replication or other subsequent

pleading; and in case issue shall afterwards be TRIAL, NOTICE OF TRIAL, AND INQUIRY. joined, such notice shall be available ; but if

issue be not joined on such replication, or other 34. Notice of trial or inquiry, and of conti- subsequent pleading, and the plaintiff shall nuance of trial or inquiry, shall be given in sign judgment for want thereof, and forth with town; but countermand of notice of trial or give notice of executing a writ of inquiry, such inquiry may be given either in town or country, I 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 subse- 49. Upon any application for a view, there quent pleading, the defendant's attorney, or the shall be an affidavit, stating the place at which defendant, if he plead in person, shall be the view is to be made, and the distance thereof obliged to accept notice of executing a writ from the office of the under-sheriff, and the of inquiry on the back of the joinder in de- sum to be deposited in the hand of the undermurrer; and in case the defendant pleads a sheriff shall be 101. in case of a common jury, plea in bar or rejoinder, &c., to which the and 161. in case of a special jury, if such displaintiff demurs, the defendant's attorney, ortance do not exceed five miles, and 151. in case the defendant, if he plead in person, shall be of a common jury, and 211. in case of a speobliged to accept notice of executing a writ of|cial jury, if it be above five miles. And if inquiry on the back of such demurrer.

such sum shall be more than sufficient to pay 41. Notice of a trial at bar shall be given to the expenses of the view, the surplus shall the Masters of the Court before giving notice forthwith be returned to the attorney of the of trial to the party.

party who obtained the view ; and if such sum 42. No trial by proviso shall be allowed in shall not be sufficient to pay such expenses, the

e same Term in which the default of the deficiency shall forth with be paid by such plaintiff has been made, and no rule for a trial attorney to the under-sheriff. And the underby proviso shall be necessary.

sheriff shall pay and account for the money so 43. All causes to be entered for trial in lae

in deposited according to the scale following; London and Middlesex shall be entered as /(that is to say,)

£ 5. d. follows; that is to say, if notice of trial shall be given for any sitting within Term, two days

For travelling expenses to the underbefore the day of sitting; and if for a sitting

sheriff, showers and jurymen, exafter Term, before eight o'clock, P.M., of the day

penses actually paid, if reasonable.

per before the first day of such sitting, and if the

Fee to the under-sheriff, when the same shall not be so entered for such sittings

distance does not exceed five miles
1 from his office . . . 1

. 1 respectively, a ne recipiatur may be entered.

0 Where such distance exceeds five miles . .

. . . 2 2 0 JURY AND VIEW.

And in case he shall be necessarily

absent more than one day, then 44. No rule for a special jury shall be for each day after the first a granted on behalf of any defendant (or plain-l further fee of . . . . 1 1 0 tiff in replevin), except on an affidavit, either Fee to each of the showers the same stating that no notice of trial has been given, as the under-sheriff, calculating or if it has been given, then stating the day for the distance from their respective which such notice has been given ; and in places of abode. the latter case, no such rule is to be granted Fee to each common juryman, per unless such application is made for it more diem . .

0 5 0 than six days before that day; provided that a For each special juryman, per diem 1 1 0 Judge may, on summons, order a rule for a Allowance for refreshment to the special jury to be drawn up at any time. | under-sheriff, showers, and jury

45. No cause shall be tried by a special jury men, whether common or special, in Middlesex or London, unless the rule for each, per diem . . . . 0 5 0 such special jury be served, and the cause |To the bailiff for summoning each marked in the Associate's book as a special ! juryman whose residence is not jury cause, on or before the day preceding the more than five miles distant from day appointed in Middlesex and London respec- the office of the under-sheriff : 0 2 6 tively for the trial of special juries.

And to each whose residence does 46. There shall be no rule for the sheriff to

ff to exceed five miles of such distance 0 5 0 return a good jury upon a writ of inquiry, but an order shall be made by a Judge upon sum

NEW TRIALS, MOTIONS IN ARREST OF JUDGmons for that purpose.

MENT, AND JUDGMENT NON OBSTANTE 47. Sheriffs, other than the sheriffs of Lon

VEREDICTO. don and Middlesex, shall, seven days before the commission day, make and keep at their 50. No motion for a new trial, or to enter offices, for inspection, a printed copy of the verdict or nonsuit, motion in arrest of judgpanel of the special jurymen to try the special ment, or for judgment non obstante veredicto, jury causes at the assizes, as directed by the shall be allowed after the expiration of four Common Law Procedure Act, 1852; but such days from the day of trial, nor in any case after special jury need not be summoned, except no- the expiration of the Term, if the cause be tice be given as provided for by the 112th sec- tried in Term, or after the expiration of the tion of the said Act.

first four days of the ensuing term when the 48. The rule for a view may in all cases cause is tried out of Term, unless entered in a be drawn up by the officer of the Court, on the list of postponed motions by leave of the Court.

ryman, peria. .

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