SYNOPSIS

OF THE

COMMON LAW PROCEDURE ACTS

OF 1852 AND 1854.

COMMON LAW PROCEDURE ACT OF 1852 (a). – Personal actions to be commenced by writ of summons (b).

Writ.-(Sect. 2). The writ of summons and copy must, in actions for debt, be endorsed with amount of debt and costs (sect. 7) (c). Where the defendant resides within the jurisdiction of the court (i. e., in England), and the claim is for a debt, or a demand in the nature of a debt, as a bill, or bond, or guarantee, the plaintiff should endorse the writ and copy specially with the particulars of his claim (sect. 25); no further particulars need then be delivered if he have to declare (unless by order of a judge); writ to be personally served unless under order of judge

(a) 15 & 16 Vict. c. 76.

(6) No statutes are expressly repealed, but many particular provisions of previous statutes are expressly or impliedly, and nearly the whole of the Uniformity of Process Act, 2 Will. IV. c. 39, is so by substituted provisions.

(c) With respect to rules of practice, the new rules of H. T., 17 Vict., made under the authority of this act, repeal expressly all previous written rules (so that the rules of Will. IV. are repealed, except so far as re-enacted in this act), but not unwritten rules of practice, except so far as expressly or by necessary implication repealed by the new rules; for which see Appendix. By sect. 223 of the present act, judge may make any new rules with respect to any matter therein contained relative to practice or pleading.

(sect. 17); and if defendant do not appear, and the writ have been endorsed specially, declaration need not be delivered, but final judgment can be signed on the writ (sect. 27); but if the writ have not been so indorsed, there must be declaration filed, and in such cases costs of declaration will not be recoverable on judgment by default for want of plea (sect. 28). Concurrent writs may be issued within six months of the issuing of the original (sect. 9), for service in or out of the jurisdiction of the courts (sect. 22), or the same writ may be served in any county (sect. 14). Omissions, either in writ or copy, shall not render it void, but irregular, and it may be amended (on terms) on application to the court or judge (sect. 20), and so a mistake in the form of writ issued may be corrected by a judge without costs (sect. 21). The provisions of 2 Will. IV. c. 39, as to alias and pluries writs repealed (sect. 10); but writs may be renewed within six months, for six months more (and so on, as may be necessary), being re-stamped with date of renewal (sect. 11); and the suit shall commence, for all purposes, from the original date of the writ (sect. 13). These provisions for renewal apply to writs issued before the act (sect. 12). Proceeding for distringas to compel appearance abolished (sect. 24); and when defendant knows of writ or wilfully evades service, the court or judge may, on affidavit of reasonable efforts having been made to serve, allow a plaintiff to proceed as if service had been effected (sect. 17). Where defendant, if a British subject, resides any where out of England (except Scotland or Ireland), a writ may be issued for service out of jurisdiction, as to service of which the same provision is made, and time for appearance to which is to be regulated by the distance of his place of residence from England (sect. 18); or if it be uncertain whether the defendant be in England or abroad, concurrent writs may issue for service in and out of England (sect. 22); and similar provisions apply to a foreigner residing out of England (sect. 19).

Appearance.-Appearance need never be entered by plaintiff for defendant (sect. 26); and distringas

to compel appearance abolished (sect. 24); but upon non-appearance, if the writ be specially endorsed (sect. 25), judgment may be signed thereon by leave of judge (sect. 27). If it be not so endorsed, the declaration may be filed (sect. 28). Defendant may appear at any time before judgment, and if after the time stated in the writ, will be in the same position as if he had appeared in proper time (sect. 29). And if the writ have been specially endorsed, and only some out of several defendants appear, judgment may be signed against those only who have not appeared, and execution may be issued against them; in which case (i. e., after execution against them), he shall be taken to have abandoned his action against those who have appeared or, before execution against the others, he may declare against those who have appeared (sect.33).

Nonjoinder or misjoinder of plaintiffs may be amended by the court or judge before (sect. 34) or at the trial (sect. 35), unless notice of plea or abatement have been delivered, in which case plaintiff may amend the writ and continue the action, which then dates from such amendment (sect. 35, 36, 38); misjoinder of defendant may be amended before or at the trial (sect. 37), and on plea of abatement for nonjoinder proceedings may be amended (sect. 38); and defendant will not be entitled to costs of plea in abatement, if it appear at the trial that any of the persons mentioned in the plea were not liable, but he will be liable to the plaintiff for the costs which the plaintiff will have incurred to the defendants who are so found not liable (sect. 39).

Joinder of Causes of Action.-Claims by husband and wife may be joined with claims in right of the husband (sect. 40); and, generally, causes of action, of whatever kind, by or against the same parties and in the same right, may be joined (except in replevin or ejectment); and if two or more are local and arising in different counties, the same may be laid in either, subject to a power, in the court or judge, to order separate trials (sect. 41).

Determination of Causes without Pleadings.-If the

parties are agreed as to the question of fact to be decided, they may, after writ and before judgment, by consent and order of a judge, and if they have a bona fide interest in it, and it be fit to be tried, have it raised for trial, without pleadings, in form as follows (sect. 42) (a):

"QUEEN'S BENCH, &c.—Whereas A. B. has sued C. D., and affirms and denies

(stating the questions of fact), and it has been ordered by, &c., that the said question shall be tried by a jury; let the same be tried accordingly."

And the parties may enter into an agreement in writing, embodied as an order, that a sum of money, to be fixed by them or ascertained by a jury, shall be paid by one to the other with or without the costs (sect. 43). Judgment may be entered thereupon, and execution issue forthwith, unless otherwise ordered or agreed (sect. 44). The judgment will have the same effect as an ordinary action (sect. 45). After writ and before judgment, questions of law may be raised by special case (sect. 46) (b); and a similar agreement as to payment of money may be entered into (sect. 47). Costs, in the absence of any agreement otherwise, in general would follow the event (sect. 48).

Pleadings.-Neither in the declaration nor any other pleadings need statements purely formal be inserted (sect. 49, 64, 65, 66, 67), nor will it be objectionable on any ground heretofore held ground for special demurrer (sect. 51). But if pleading is so framed as to prejudice, embarrass, or delay the fair trial, application may be made to a judge (sect. 52). Profert need not be made, nor will it entitle defendant to over if it be made (sect. 55). But a party is entitled to set out in, and as part of, his own pleading any document referred to in his opponent's (sect. 56) (c). In all cases general averments will suffice

(a) And by the Common Law Procedure Act of 1854 they may have it tried by the judge. See post.

(b) And by Common Law Procedure Act of 1854, arbitrator may state special cases.

(c) As to having a copy of it for the purpose of pleading, no

(sect. 51), and especially in actions on contracts averments of performance may be general (sect. 57); or in actions of libel or slander the plaintiff may generally aver the words complained of were used in a defamatory sense described (sect. 61). Nor will the declaration or plea be objectionable on demurrer, unless it do not set forth sufficient ground of action, defence, or reply (sect. 50.) Rules to declare, to plead, reply, or rejoin, shall not be required, but a four days' notice, which may be separate or indorsed (sect. 53). Time for pleading within the jurisdiction is to be always eight days (sect. 63). Pleas are simply to commence thus :—

"The defendant, by A. B. his attorney (or in person), says that (stating the defence shortly, and generally, in simple, plain, language), and for a second plea says, that," &c.; and no formal conclusion is necessary (sect. 67), whether defence arise before or after the action (sect. 68).

A plea is sufficient if good in substance (sect. 50, 51), and whether it treat the declaration as framed in contract or in tort (sect. 74); and counsel's signature is not necessary (sect 85). Defendant may traverse all that is traversable on the declaration in one general plea, or deny any one material allegation (sect. 76); and he may (by leave) plead and demur at the same time to the same count, upon affidavit (if required by the judge) that his pleas are true in fact, and that he is advised the count is bad in law (sect. 80); or he may plead several matters, on affidavit, if required by the judge, that his pleas are true (sect. 81), without a rule of court (sect. 82); and all objections, on the ground that they are founded on the same ground of defence, are to be heard upon the summons to plead several matters (sect. 83). If several pleas pleaded without leave (except in specified cases) judgment may be signed (sect. 84, 86). Money may be

no provision is made by this act, but it is left at common law and to the Evidence Act, 14 & 15 Vict. c. 99, s. 6, amended by 17 & 18 Vict. c. 125, the Common Law Procedure Act, 1854.

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