THE COMMON LAW PROCEDURE ACT, 1860. (23 & 24 VICT. c. 126.) 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." [28th August, 1860.] WHEREAS it is desirable further to improve the process, practice, and mode of pleading in, and, in some respects, to enlarge the jurisdiction of, the Superior Courts of Common Law: 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: RELIEF AGAINST FORFEITURE. against for of rent. 1. In the case of any ejectment for a forfeiture Relief brought for non-payment of rent, the court or a judge feiture for shall have power, upon rule or summons, to give non-payment relief in a summary manner, but subject to appeal as hereinafter mentioned, up to and within the like time after execution executed, and subject to the same terms and conditions in all respects, as to payment of rent, costs and otherwise, as in the Court of Chancery; and if the lessee, his executors, administrators or assigns, shall upon such proceeding be relieved, he and they shall hold the demised lands according to the lease thereof made, without any new lease. This is supplementary to C. L. P. A. 1852, s. 212 (ante, * This act is based upon the Third and final Report of the Common Law Commissioners, whose recommendations have, notwithstanding the vigorous efforts of the Common Law Commissioners, been only partially adopted by the legislature, in consequence of the extraordinary opposition presented by persons connected with the Courts of Chancery. Relief against forfeiture for non-insuring. p. 165); inasmuch as it enables the courts of common law to administer relief after the trial, and within the six months limited by C. L. P. A. 1852, s. 210 (ante, p. 162), for the intervention of a court of equity. See Story's Commentaries on Equity Jurisprudence, § 1301, et seq.; also Peachy v. Duke of Somerset, and notes thereto, in Tudor's Leading Cases in Equity, 2nd ed. vol. ii. p. 895, et seq. 2. In the case of any ejectment for a forfeiture for breach of a covenant or condition to insure against loss or damage by fire, the court or a judge shall have power, upon rule or summons, to give relief in a summary manner, but subject to appeal as hereinafter mentioned, in all cases in which such relief may now be obtained in the Court of Chancery under the provisions of an act passed in the session of parliament held in the twenty-second and twenty-third years of 22 & 23 Vict. the present reign, intituled "An Act to further amend the Law of Property, and to relieve Trustees," and upon such terms as would be imposed in such court. c. 35. 22 & 23 Vict. c. 35. Sect. 4. Relief against forfeiture for breach of covenant to insure in certain cases. Sect. 6. Court not to relieve any person more This introduces within the jurisdiction of the courts of common law a relief novel even in Chancery (Green v. Bridges, 4 Sim. 96); and its importance seems to demand the annexing those provisions of the act which created the jurisdiction in Chancery, which are referred to in the above section. 22 & 23 VICT. c. 35. An Act to further amend the Law of Property and to relieve Trustees. Section 4. A court of equity shall have power to relieve against a forfeiture for breach of a covenant or condition to insure against loss or damage by fire, where no loss or damage by fire has happened, and the breach has, in the opinion of the court, been committed through accident or mistake, or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of the application to the court in conformity with the covenant to insure, upon such terms as to the court may seem fit. Section 6. The court shall not have power under this act to relieve the same person more than once in respect of the same covenant or condition, nor shall it have power to grant any relief under this act where a forfeiture under the covenant in respect respect of the of which relief is sought shall have been already waived out of court in favour of the person seeking the relief. than once in same cove nant, &c. Sect. 8. Protection of purchaser against for Section 8. Where, on the bonâ fide purchase after the passing of this act of a leasehold interest under a lease containing a covenant on the part of the lessee to insure against loss or damage by fire, the purchaser is furnished with the written This section is added on account of its great general importance, and of its connection with the previous section; although it does not itself affect the practice of the courts. insurance receipt of the person entitled to receive the rent, or his agent, feiture under for the last payment of rent accrued due before the completion of covenant for the purchase, and there is subsisting at the time of the comple- against fire tion of the purchase an insurance in conformity with the cove- in certain nant, the purchaser or any person claiming under him shall not cases. be subject to any liability, by way of forfeiture or damages or otherwise in respect of any breach of the covenant committed at any time before the completion of the purchase, of which the purchaser had not notice before the completion of the purchase; but this provision is not to take away any remedy which the lessor or his legal representatives may have against the lessee or his legal representatives for breach of covenant. Section 9. The preceding provisions shall be applicable to leases for a term of years absolute, or determinable on a life or lives or otherwise, and also to a lease for the life of the lessee, or the life or lives of any other person or persons. From the above enactments it follows: Firstly. That a breach of covenant to insure will not be relieved against where (a) It has occurred through gross negligence or fraud; or (c) The premises are not duly re-insured at the time of the (d) Any previous relief has been granted by the court to Secondly. That in other cases a breach of covenant to insure may be relieved against by the court or a judge upon such terms as to the court or judge may seem fit. Thirdly. That a bona fide purchaser, without notice of a prior breach of covenant to insure, is protected against all consequences of such prior breach; if, on the purchase, he procured a written receipt for the last payment of rent accrued due before the completion of the purchase; and if, at the time of the completion of the purchase, the premises were duly insured.‡ It has been held that, under s. 4, supra, relief may be given against forfeiture through a breach, since the passing of the act, of a covenant entered into previously thereto (Page v. Bennett, 2 Giff. 117; L. J. 29, Ch. 398); see this case also as to costs. See generally, as to the retroactive effect of statutes, Cornill v. Sect. 9. Preceding provisions to apply to leases for a term of years absolute, &c. Semble, the court may relieve other persons in respect of the same covenant, although they claim by or under the same title. As to waiver of breaches of covenant, see Dendy v. Nicholl (4 C. B. N. S. 376); Price v. Worwood (4 H. & N. 512); Croft v. Lumley (6 H. L. C. 672; L. J. 27, Q. B. 321). No such provision is needed, nor indeed applicable, in the case of a breach of a covenant to pay rent; against which a purchaser may protect himself under the C. L. P. A. 1852, s. 212 (ante, p. 165), and the C. L. P. A. 1860, s. 1, ante, p. 295). Minute of relief granted. Appeal to the court from order of judge. Jurisdiction of judge at chambers. Hudson, 8 E. & B. 429); Jackson v. Woolley (8 E. & B. 778), and cases there cited; see also Moon v. Durden (2 Exch. 22); Pinhorn v. Sonster (8 Exch. 138; L. J. 21, Ex. 336); Jenkins v. Betham (15 C. B. 190); Williams v. Smith (2 H. & N. 443); Re Miles's Trusts (27 Beav. 579; L. J. 29, Ch. 47); Midland Railway Company v. Pye (10 C. B. N. S. 179; L. J. 30, C. P. 314); Flood v. Patterson (29 Beav. 295; L. J. 30, Ch. 486); and contra, Thompson v. Waithman (3 Drew. 628; L. J. 26, Ch. 134); Page v. Bennett, ubi supra); Dodson v. Sammell (1 Drew. & S. 575; L. J. 30, Ch. 799); and Wright v. Hale (6 H. & N. 227 ; L. J. 30, Ex. 40), where an important distinction is taken between rights, and procedure and its incidents, such as costs. See generally cases cited in Broom's Maxims, 4th ed. pp. 34-43. 3. Where such relief shall be granted, the court or a judge shall direct a minute thereof to be made by indorsement on the lease or otherwise. The words "such relief" probably refer to the last antecedent, viz., to relief under s. 2 (ante, p. 296), and not to relief under s. 1 (ante, p. 295). The object of the enactment in such case would be to provide, in favour of the landlord, evidence of relief having been given by the court, so as to. bar further application (22 & 23 Vict. c. 35, s. 6, ante, p. 296). If it be held to apply to relief under s. 1, as well as to s. 2, its object would seem to be to provide evidence of the restoration of the term, in favour of the tenant. See, as to construction of C. L. P. A. 1854, s. 8, Re Morris, cited, ante, p. 209. APPEAL. 4. Any order made by a judge upon an application for a relief under the provisions of this act shall be subject to an appeal to the court, and may be discharged, varied or set aside by the court, upon such terms as the court shall think fit, on application made thereto by any party dissatisfied with such order. The appeal given by this and the following sections (4—11) is limited to appeals from orders that have been made upon applications for relief against forfeitures, under ss. 1, 2 (ante, pp. 295, 296). The term "any party "will probably be restricted to parties to the ejectment, and not be extended to persons otherwise interested, unless they make themselves parties thereto under the C. L. P. A. 1852, s. 172 (ante, p. 143). Although jurisdiction to grant relief is specifically given to a judge, as distinguished from the court, by the previous sections, and the proceedings upon appeals from his order, made under these provisions, are regulated by the following sections; it may yet be useful to see, as to the jurisdiction of judges at chambers, Smeeton v. Collier (1 Exch. 457); Clarke v. E. I. Company (6 D. & L. 278); R. v. Almon (Wilmot's Notes, 264). Any applica. tion to the court, after a previous application for the same purpose to a judge at chambers, is in the nature of an appeal from such judge, even where he only refused to make any order; and it will not therefore be entertained after the lapse of a term (Meredith v. Gittens, 18 Q. B. 257; L. J. 21, Q. B. 273; Orchard v. Moxey, 2 E. & B. 206; Craske v. Smith, 4 C. B. N. S. 446; Worman v. Halahan, L. J. 30, Q. B. 48; Oldham Manufacturing & Building Company v. Heald, 3 H. & C. 132; L. J. 33, Ex. 236). Such of the materials used before the judge as are relevant to the case should be brought before the court, upon the rule nisi being applied for (Hoby v. Pritchard, 5 Dowl. 300; Pocock v. Pickering, 18 Q. B. 739; L.J. 21, Q. B. 365; Worman v. Halahan, ubi supra; Mitchell v. Harding, 5 L. T. N. S. 348, Q. B. M. T. 1861; Bennett v. Benham, 15 C. B. N. S. 616; L. J. 33, C. P. 153; together with an affidavit stating the proceedings thereon, at least when the counsel moving the rule was not concerned in the matter at chambers (Jackson v. Shorter, 2 Weekly Notes, 1867, p. 44, C. P. H. T); and also on renewing applications to the court; but additional materials may also be used (Peterson v. Davis, 6 C. B. 235; Sanderson v. Proctor, 10 Exch. 189). Where a judge has made an order on an ex parte statement, the other party must apply to the judge to reconsider his order before applying to the court to set it aside (Day v. Vincent, 9.L. T. N. S. 624, Ex. H. T. 1864). No appeal lies from one judge at chambers to another (Wright v. Stevenson, 5 Taunt. 850); but it lies to the court, even where by statute a special jurisdiction is conferred upon a single judge (Teggin v. Langford, 10 M. & W. 556), but not where the jurisdiction of the court is excluded (Wearing v. Smith, 9 Q. B. 1024); nor in ordinary cases, where the matter is by the statute left entirely in his discretion ( Burman v. Howard, L. J. 25, Ex. 289; Cartwright v. Frost, 3 H. & N. 278; Holden v. Ballantyne, L. J. 29, Q. B. 148). Where a judge makes an order and, exercising a discretionary power, gives costs as prayed but annexes a condition thereto, the court will not interfere to remove the condition, even though the order has not been drawn up (Bartlett v. Stinton, L. R. 1 C. P. 483). Where a rule nisi, by way of appeals to rescind the order of a judge, is discharged, it is usual to discharge it with costs unless the point raised is new and difficult (Hawkins v. Carr, L. R. 1 Q. B. 89). The jurisdiction of the judges at chambers has by the very recent statute, 30 & 31 Vict. c. 68, been extended to the masters of the courts, subject to such rules as the judges may make under the powers of that act (see R. G. M. T. 1867, post), the act expressly reserving a right of appeal to a judge from the master's decision. The provisions of this act, which will be found printed in extenso (post, p. 345), are shortly as follows: Jurisdiction of master at chambers. 30 & 31 Vict. c. 68. Section 1 enacts, that a majority of all the judges of the three Sect. 1. courts of common law (which majority shall include two of the chiefs), may make rules (1) For empowering the masters of the courts to transact any a judge sitting in chambers now has, except in matters (2) For regulating the attendance of the masters, the course of (3) For fixing fees. Under the powers of the above section, R. G. M. T. 1867, post, have been framed. Section 2 enacts, that the rules made under this act shall be Sect. 2, read in each court ten days before they come into operation, and be published in the London Gazette. |