THE COMMON LAW PROCEDURE ACT, 1854. 17 & 18 VICT. CAP. 125. An Act for the further Amendment of the Process, Practice, and Mode of Pleading in and enlarging the Jurisdiction of the Superior Courts of Common Law at Westminster, and of the Superior Courts of Common Law of the Counties Palatine of Lancaster and Durham.-[12th August, 1854.] THIS act was framed in accordance with the second report of the commissioners for inquiring into the process, practice, and system of pleading in the Superior Courts of Common Law, &c. and a perusal of the recommendations and suggestions therein will be found very useful in construing the corresponding provisions of this statute. The report is printed verbatim in the preceding pages. BE it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: by consent, 1. The parties to any cause may, by consent Judge may in writing, signed by them or their attorneys, as try questions F of fact. the case may be, leave the decision of any issue of fact to the court, provided that the court, upon a rule to show cause, or a judge on summons, shall, in their or his discretion, think fit to allow such trial; or provided the judges of the Superior Courts of Law at Westminster shall, in pursuance of the power hereinafter given to them, make any general rule or order dispensing with such allowance, either in all cases or in any particular class or classes of cases to be defined in such rule or order; and such issue of fact may thereupon be tried and determined, and damages assessed where necessary, in open court, either in term or vacation, by any judge who might otherwise have presided at the trial thereof by jury, either with or without the assistance of any other judge or judges of the same court, or included in the same commission at the assizes; and the verdict of such judge or judges shall be of the same effect as the verdict of a jury, save that it shall not be questioned upon the ground of being against the weight of evidence; and the proceedings upon and after such trial, as to the power of the court or judge, the evidence, and otherwise, shall be the same as in the case of trial by jury. Considerable responsibility is cast upon attorneys as to advising clients whether or not to avail themselves of this provision. Before giving such advice, counsel's opinion should be taken. As the verdict of the judge cannot be questioned upon the ground of being against the weight of evidence, an attorney should not consent to leave the decision of any issue of fact to the court, without the express authority of his client. Although, if such consent were given by the attorney without such authority, the proceedings could not be set aside, yet the client would have a remedy by action against his attorney (Filmer v. Delber, 3 Taun. 486.) A client, although bound as between himself and the opposite party by the acts of his counsel and attorney in referring a case at Nisi Prius, or withdrawing the record and consenting to a settlement upon terms, yet if such acts be without his authority has a remedy Power to state opinion of the may sit at causes pend 2. It shall be lawful for any one of the judges Two judges of of the Superior Courts at Westminster, same time any at the request of the Lord Chief Justice or Lord for trial of Chief Baron, to try the causes entered for trial ing in the at Nisi Prius in Westminster and London in same court. either of the courts, on the same days on which the said Lord Chief Justice or Lord Chief Baron, or any other judge of the same court, shall be sitting to try causes at those places respectively, or at either of them, so that the trial of two causes may be proceeded with at the same time; and all jurors, witnesses, and other persons who may have been summoned or required to attend Power to court or judge to direct arbitration before trial. at or for the trial of any cause before the said Lord Chief Justice or Lord Chief Baron, as the case may be, shall give their attendance at and for the trial thereof before such other judge as may be sitting to try the same by virtue of this act; and it shall be lawful for the associates and other officers of the Lord Chief Justice or Lord Chief Baron, as the case may be, to appoint from time to time fit and proper persons, to be approved by the said Lord Chief Justice or Lord Chief Baron, to attend for them and on their behalf respectively before such judge; and the trial of every cause which shall be so had by virtue of this act shall, if necessary, be entered of record, as having been had before the judge by whom such cause in fact was tried. 3. If it be made appear, at any time after the issuing of the writ, to the satisfaction of the court or a judge, upon the application of either party, that the matter in dispute consists wholly or in part of matters of mere account which cannot conveniently be tried in the ordinary way, it shall be lawful for such court or judge, upon such application, if they or he think fit, to decide such matter in a summary manner, or to order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties, or to an officer of the court, or, in country causes, to the judge of any County Court, upon such terms as to costs and otherwise as such court or judge shall think reasonable; and the decision or order of such court or judge, or the award or certificate of such referee, shall be enforceable by the same process as the finding of a jury upon the matter referred. This enactment empowers the court to make a compulsory order, on an ex parte application, to dispense with trial by jury and to dispose of the matter summarily, or to refer it to arbitration. The judge at the trial at Nisi Prius before a jury has no power to compel the parties to refer. This section, it is apprehended, does not give such power at Nisi Prius. Section 6 refers to this case as one of reference before trial, and the last clause of this section is inconsistent with a reference at Nisi Prius where a verdict is taken subject to a reference. It is confined to cases where the matter consists wholly or in part of matters of mere account, which cannot be conveniently tried in the ordinary way; if they can be conveniently tried in the ordinary way, the court has no jurisdiction. The power of the court or judge is to (1) decide such matter in a summary way, or (2) to order that such matter, either wholly or in part, be referred. The application of the party under this section must be supported by affidavit, and it is evident that where the court or judge is asked to dispose of the matter in dispute in a summary way, the whole matter in dispute must be set out upon affidavit; and upon showing cause, the other side must set forth his case as minutely, or else show some ground why the matter in dispute ought not to be disposed of in a summary way. So where one party makes an application to refer, on the ground that the matter in dispute consists wholly or in part of matters of mere account, which cannot conveniently be tried in the ordinary way, the other side, on showing cause, may state matters to rebut these allegations. This is the proper section for acting upon in an action for a builder's bill for extras where there has been a special agreement; the extra work done and its value might be referred to arbitration, and the questions of liability and authority to do the work left for the finding of a jury in the ordinary way, or the decision of a judge under sect. 1. "The decision or order of such court or judge, or the award or certificate of such referee, shall be enforceable by the same process as the finding of a jury upon the matter referred." The meaning of this part must be cautiously considered. The finding of the jury cannot be enforced except when the action is determined thereby, and then the party in whose favour the action is so determined signs judgment. This section, it follows, must be taken to authorise the party, where the matter in dispute consists wholly of matters of account, in whose favour the decision or award may be, to sign judgment in the action as the means of obtaining process for enforcing the decision or award. But when the matter in dispute consists in part only of matters of mere account, the decision of the court or the award of the referee thereon can only be used as evidence in the action. |