justices," or in the Exchequer "to the barons of our Exchequer," as the case may be], at Westminster, immediately after the execution hereof, and have you there then this writ. Witness at Westminster, in the year of our Lord the day of January 11, 1853. Signed by the JUDGES. 426 REGULÆ GENERALES AS TO PLEADING MADE BY THE JUDGES, IN PURSUANCE OF THE COMMON LAW PROCEDURE ACT. TRINITY TERM, 1853.† WHEREAS, pursuant to the provisions of the statute passed in the Session of Parliament held in the third and fourth years of the reign of his late majesty king William the Fourth, intituled "An Act for the further Amendment of the Law and the better Advancement of Justice," the judges of the Superior Courts of Common Law at Westminster made certain rules, orders, and regulations as to the mode of pleading and other matters in the said act mentioned, which said rules, orders, and regulations were duly laid before both houses of parliament, as required by that statute, and came into effect and operation respectively on the first day of Easter term, in the year of our Lord one thousand eight hundred and thirtyfour, and the first day of Michaelmas Term, in the year of our Lord one thousand eight hundred and thirty-eight: And whereas it is provided by the "Common Law Procedure Act, 1852," that it should be lawful for the judges of the Court of Common Law at Westminster, or any eight or more of them, of whom the chiefs of each of the said courts should be three, from time to time to make all such general rules and orders for the effectual execution of that act, and of the intention and object thereof, and for fixing the costs to be allowed for and in respect of the matters therein con * See R. G. H. T. 1853 (ante, p. 347, n.), as to the authority of these rules. + These rules (which, although dated as of Hilary Term, are more generally referred to as of Trinity Term, 1853, when they took effect) relate almost exclusively to pleading, as distinguished from practice, and are so far beyond the scope of this work. See generally C. L. P. A. 1852, ss. 49-91, and notes, ante; and Bullen and Leake's Precedents of Pleadings. tained, and the performance thereof, and for apportioning the costs of issues, and for other purposes mentioned in the said act, as in their judgment should be necessary or proper; and to exercise all the powers and authority given to them by an Act of Parliament passed in the session of parliament held in the thirteenth and fourteenth years of the reign of her present Majesty, intituled "An Act to enable the Judges of the Courts of Common Law at Westminster to alter the Forms of Pleading," with respect to any matter therein contained relative to practice or pleading; and the provisions of the said last-mentioned act, as to the rules, orders, or regulations made in pursuance thereof, should be held applicable to any rules, orders, or regulations which should be made in pursuance of the said Common Law Procedure Act, one thousand eight hundred and fifty-two: And whereas by the said act passed in the session of parliament held in the thirteenth and fourteenth years of the reign of her present Majesty powers were given to the judges of the courts of common law at Westminster, by rules and orders to make alterations in the forms of pleading in the said courts, and respecting other matters in that act mentioned; and it was enacted, that all such rules, orders, or regulations should be laid before both houses of parliament in manner directed by the said act; and that no such rule, order, or regulation should have effect until three months after the same should have been so laid before both houses of parliament; and that any rule, order, or regulation so made should from and after such time aforesaid be binding and obligatory on the said courts, and all other courts of common law, and on all courts of error, and be of like force and effect as if the provisions contained therein had been expressly enacted by parliament: And whereas it is expedient for the effectual execution of the said "Common Law Procedure Act, 1852," that the said rules, orders, and regulations respectively made in pursuance of the said statute passed in the session of parliament held in the third and fourth years of the reign of his late majesty king William the Fourth should be repealed, and that other rules, orders, and regulations should be framed in lieu thereof: IT IS THEREFORE ORDERED, that from and after the first day of Trinity Term next inclusive, unless parliament shall in the meantime otherwise enact, the said rules, orders, and regulations made respectively in pursuance of the said statute passed in the session of parliament held in the third and fourth years of the reign of his late majesty king William the Fourth shall be and are hereby repealed, excepting so far as the same or any of them are necessary or applicable to any pleadings, proceedings, or other matters to which they relate, had or taken previous to the said first day of Trinity Term next; and the following rules, orders, and regulations shall be in force; that is to say: 1. Except as hereinafter provided, several counts on the same cause of action shall not be allowed, and any count or counts used in violation of this rule may, on the application of the party objecting, within a reasonable time, or before an order made for time to plead, be struck out or amended by the court or a judge, on such terms, as to costs or otherwise, as such court or judge may think fit. As a general rule counts in detinue and trover for the same cause of action ought not to be allowed to be joined, and the former should be struck out, unless the plaintiff satisfies the judge that there is good reason for allowing both, e. g., that the article is a precious article, which the plaintiff ought to be allowed to recover in specie (Mockford v. Taylor, 19 C. B. N. S. 209; L. J. 34, C. P. 352). The joinder of these two different forms of action is productive of great inconvenience in entering up judgment, and issuing execution. It would, moreover, seem that as a judgment in trover, even while unsatisfied, passes the property to the wrong-doer (Buckland v. Johnson, 15 C. B. 145; L. J. 23, C. P. 204, cited in Bullen and Leake's Precedents of Pleadings, 2nd edit., pp. 608, 624), the subsequent proceedings upon the judgment in detinue would be inconsistent with the title conferred upon the defendant by the simultaneous judgment in trover. The great advantage which a plaintiff derives from adding a count in detinue is in compelling the defendant to plead his justification, if any, specially. 2. Several pleas, replications, or subsequent pleadings, or several avowries or cognizances founded on the same ground of answer or defence, shall not be allowed; provided, that on an application to the court or a judge to strike out any count, or on an objection taken before the judge on a summons to plead several matters to the allowance of several pleas, replications, or subsequent pleadings, avowries, or cognizances on the ground of such counts or other pleadings being in violation of this rule, the court or the judge may allow such counts on the same cause of action, or such pleas, replications, or subsequent pleadings, or such avowries or cognizances founded on the same ground of answer or defence, as may appear to such court or judge to be proper for the determining the real question in controversy between the parties on its merits, subject to such terms, as to costs and otherwise, as the court or judge may think fit. 3. When no such rule or order has been made as to costs by the court or judge, and on the trial there is more than one count, plea, replication or subsequent pleading, avowry, or cognizance on the record, founded on the same cause of action or ground of answer or defence, and the judge or presiding officer before whom the cause is tried shall at the trial certify to that effect on the record, the party so pleading shall be liable to the opposite party for all costs occasioned by such count, plea, or other pleading in respect of which he has failed to establish a distinct cause of action or distinct ground of answer or defence, including those of the evidence as well as those of the pleading. 4. The name of a county shall in all cases be stated in the margin of a declaration, and shall be taken to be the venue intended by the plaintiff, and no venue shall be stated in the body of the declaration, or in any subsequent pleading: Provided that in cases where local description is now required, such local description shall be given. See as to venue generally, ante, pp. 60–62. As to the effect of this rule see Richardson v. Lochlin (6 B. & S. 777; L. J. 34, Q. B. 225), cited ante, p. 60. 5. In all actions by and against assignees of a bankrupt or insolvent, or executors or administrators, or persons authorized by act of parliament to sue or be sued as nominal parties, the character in which the plaintiff or defendant is stated on the record to sue or be sued shall not in any case be considered as in issue, unless specially denied. 6. In all actions on simple contract, except as hereinafter excepted, the plea of non assumpsit, or a plea traversing the contract or agreement alleged in the declaration, shall operate only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the contract, |