Set-off.

Release.

Not guilty. Leave and licence.

Self-defence.

Right of way.

Right of common.

41. That the plaintiff at the commencement of the suit was, and still is, indebted to the defendant in an amount equal to the plaintiff's claim, for [here state the cause of set-off, as in a declaration: see forms, ante], which amount the defendant is willing to set off against the plaintiff's claim.

42. That after the alleged claim accrued, and before this suit, the plaintiff by deed released the defendant therefrom.

Pleas in Actions for Wrongs independent of
Contract.

43. That he is not guilty.

44. That he did what is complained of by the plaintiff's leave.

45. That the plaintiff first assaulted the defendant, who thereupon necessarily committed the alleged assault in his own defence.

46. That the defendant, at the time of the alleged trespass, was possessed of land the occupiers whereof for twenty years before this suit enjoyed as of right and without interruption a way on foot and with cattle from a public highway over the said land of the plaintiff to the said land of the defendant, and from the said land of the defendant over the said land of the plaintiff to the said public highway, at all times of the year, for the more convenient occupation of the said land of the defendant, and that the alleged trespass was a use by the defendant of the said way.

47. That the defendant, at the time of the alleged trespass, was possessed of lands, the occupiers whereof for thirty years before this suit enjoyed as of right and without interruption, common of pasture over the said land of the plaintiff for all their cattle, levant and couchant, upon the said land of the defendant at all times of the year, as to the said land of the defendant appertaining, and that the alleged trespass was a use by the defendant of the said right of common.

Joinder of issue.

Replication to pleas containing new

matter.

To plea of release.

To plea of set-off.

REPLICATIONS.

48. The plaintiff takes issue upon the defendant's 1st, 2nd, &c., pleas.

49. The plaintiff as to the second plea says [here state the answer to the plea as in the following forms:]

50. That the alleged release is not the plaintiff's deed.

51. That the alleged release was procured by the fraud of the defendant.

52. That the alleged set-off did not accrue within six before this suit.

years

fence.

53. That the plaintiff was possessed of land whereon the To self-dedefendant was trespassing and doing damage, whereupon the plaintiff requested the defendant to leave the said land, which the defendant refused to do; and thereupon the plaintiff gently laid his hands on the defendant in order to remove him, doing no more than was necessary for that purpose, which is the alleged first assault by the plaintiff.

54. That the occupiers of the said land did not for twenty To right of years before this suit enjoy as of right and without interrup- way. tion the alleged way.

NEW ASSIGNMENT.

and

way and

right of com

55. The plaintiff as to the pleas, says, To the pleas that he sues not for the trespasses therein admitted, but for of right of trespasses committed by the defendant in excess of the alleged rights, and also in other parts of the said land and on other occasions, and for other purposes than those referred to in the said pleas.

[If the plaintiff replies and new assigns, the new assignment may be as follows:]

56. And the plaintiff, as to the and pleas, further says, that he sues not only for the trespasses in those pleas admitted, but also for, &c.

[If the plaintiff replies and new assigns to some of the pleas, and new assigns only to the other, the form may be as follows:]

57. And the plaintiff, as to the and pleas, further says, that he sues not for the trespasses in the pleas [the pleas not replied to] admitted, but for the trespasses in the pleas [the pleas replied to] admitted, and also for, &c.

mon.

THE

COMMON LAW PROCEDURE ACT,

1854.

(17 & 18 VICT. c. 125.)

Judge may, by consent,

of fact.

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.]

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:—

TRIAL BY THE COURT OR a Judge.

1. The parties to any cause may, by consent in try questions Writing, signed by them or their attornies, as 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.

The verdict in a cause tried by a judge cannot be questioned on the ground of its being against the weight of evidence. Such verdict is, on questions of fact, conclusive. If questions of law arise on the trial, as they frequently do, some difficulty may be found in keeping the judge's ruling on these altogether distinct from his verdict on matters of fact (see Melling v. Leak, 16 C. B. 652).

The consent of the parties should be in writing; but when they have taken part in the trial, the absence of writing cannot be relied upon to avoid the result (Andrews v. Elliott, 5 E. & B. 502; and in error, 6 E. & B. 338).

A commissioner of assize is a judge within the meaning of this section (Andrews v. Elliott, ubi supra).

See R. G., M. V. 1854, Schedule 1-8, post.

TRIAL OF CAUSES IN WESTMINSTER AND LONDON. 2. It shall be lawful for any one of the judges of any of the superior courts at Westminster, at the request of the Lord Chief Justice or Lord Chief Baron, to try the causes entered for trial at Nisi Prius in Westminster and London in 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 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.

See s. 95, post, as to the power of the courts to appoint sittings;

Two judges

may sit at same time

for trial of causes pending in the same court.

Power to court or

judge to direct arbitration before trial.

Compulsory reference before trial.

and s. 59, post, at to the powers of the courts or a judge to make rules or orders for the attendance of a special or common jury.

COMPULSORY REFERENCE TO ARBITRATION.

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.

County court judges are now relieved of these references by 21 & 22 Vict. c. 74, s. 5.

One or other of the parties must, in strictness, apply for a reference under this section; but in practice some judges dispense with the concurrence of either party. It might perhaps have been argued that the power given by this section could only be exercised before trial, and could not strictly be exercised by a judge at the trial. But practice has determined otherwise; and cases are constantly referred by judges at the trial under this section (Murray v. Sunderland Dock Company, 1 F. & F. 179; Jones v. Beaumont, 1 F. & F. 336).

The cause, and not all matters in difference, can alone be referred under this section (Kendil v. Merrett, 18 C. B. 173). Where the matter in dispute consists in part of matters of mere account, the whole may be referred (Browne v. Emerson, 17 C. B. 361); and if a question of fraud arises upon the inquiry before the referee, he must still proceed with it (Insull v. Moojen, 3 C. B., N. S. 359).

A cause though referred remains under the control of the court (Edwards v. Edwards, 5 C. B., N. S., 536); and therefore amendments may be made (Gibbs v. Knightley, 2 H. & N. 34); but the court cannot (qu. will not) set aside an award or remit a case back to the arbitrator, in any case where it could not or would not do so upon a reference by consent (Hogge v. Burgess, 3 H. & N. 293; but see on this subject, British Empire Company v. Somes (L. J. 26, Ch. 759).

A compulsory reference was refused in an action on bills of exchange (Pellatt v. Markwick, 3 C. B., N. S. 760). See for instances of references ordered, Cummings v. Birkett (3 H. & N. 156); Murray v. Sunderland Dock Company (1 F. & F. 179); Jones v. Beaumont (1 F. & F. 336).