THE

COMMON LAW PROCEDURE ACT,

15 & 16 VICT. CAP. 76.

I. EXTENT AND OPERATION OF ACT.

The title of this act is,

"An Act to amend the Process, Practice, and Mode of Pleading in the Superior Courts of Common Law at Westminster, and in the Superior Courts of the Counties Palatine of Lancaster and Durham,"

but it will be known as The Common Law Procedure Act. And it is enacted by section

"235. In citing this act in any instrument, document or proceeding, it shall be sufficient to use the expression "The Common Law Procedure Act, 1852.'"

66

The object is briefly expressed in the recital,

that the process, practice and mode of pleading in the superior courts of common law at Westminster may be rendered more simple and speedy."

Title.

Object of the

Act.

The act relates in the first instance only to the courts at Extent of the Westminster, but its provisions are, by sect. 228, to be ex- act. tended to any court of record by order in council. And by

sect. 229 the superior courts of the counties palatine of Lancaster and Durham are brought within it. It does not extend to Scotland and Ireland (see sect. 236), except when they are specially named.

mencement.

"1. The provisions of this act shall come into opera- Time of comtion on the twenty-fourth day of October, in the year of our Lord one thousand eight hundred and fifty-two."

A statute effecting such changes as the present will neces- Application sarily give rise to many questions upon the extent of its ap- to pending proceedings. plication to pending proceedings, and it will be useful to B

W.

refer to the principles of law upon this subject, and to some of the cases which illustrate them. The general principle no doubt is, that a statute shall not be so construed as to operate retrospectively, or to take away a vested right, unless it contain either an enumeration of the cases in which it is to have such an operation, or words which can have no meaning unless such a construction is adopted; and further, that where the law is altered by statute pending an action, the law as it existed when the action was commenced, must decide the rights of the parties in the suit, unless the legislature express a clear intention to vary the relation of the litigant parties to each other. In accordance with these principles, it was held, upon the words in the Statute of Frauds, 29 Car. 2, c. 3, "no action shall be brought after June 14th, 1677," upon certain agreements, unless the agreement, &c. shall be in writing, signed, &c., that an action might be brought after that time upon a verbal agreement made before. (Gilmore v. Shuter, Mod. 310; T. Jones, 108.) In Ashburnham v. Bradshaw (2 Atk. 36), the words in 9 Geo II. c. 36 (Mortmain Act), "that no lands shall be given after June 24th, 1736," except by deed, &c., were held not to apply to a will made before that time, although it did not become operative by the death of the testator until afterwards. In Couch v. Jefferies (4 Bur. 2460), an enactment enabling a party, sued for a penalty under the stamp act, to be "discharged from the penalty by tendering the deed to be stamped," did not apply to an action already commenced. So in Moon v. Durden, (2 Exch. 22), the words, "no action shall be brought or maintained" did not affect actions pending at the time the act passed. Where a plaintiff sued on a bill of exchange, and the defendant pleaded non assumpsit, under which at that time the defence that the bill was void under 9 Anne, c. 14, for gaming, was admissible, but before the trial the new rules were issued, prohibiting that form of plea, and the 5 & 6 Will. IV. c. 41, was passed, repealing that part of the 9 Anne, c. 14, which made the bill void, and enacting, that any bill which if this act had not passed would have been void "shall be deemed and taken to have been made, drawn," &c., "for an illegal consideration," and the same consequences shall ensue ; the Court of Queen's Bench decided that the defendant was entitled to the same rights as at the time of the plea pleaded, and the defence of gaming being made out, the plaintiff was nonsuited. (Hitchcock v. Way, 6 Ad. & E. 943.) The 3 & 4 Will. IV. c. 42, s. 30, was passed the 14th of August, 1833, but enacted that the statute should take effect on the 1st day of June, 1833, and in sect. 30 it was provided, that "if any person shall sue out any writ of error upon any judgment whatsoever given," and judgment shall be given for defendant in error, then interest shall be allowed, &c. In Burn v. Carvalho (1 Ad. & E. 895) the writ of error was issued June 3rd, 1833, and the judgment was given for the

defendant in error, but the court held that no interest could be given. But many instances can be given where a different construction has been thought to be imperative. Thus in Brooks v. Bockett (9 Q. B. 849; 16 L. J. 178, Q. B.), the words "no attorney shall commence any action," &c., without delivery of a signed bill, was held to apply to bills for business done before the act, which were not then taxable. In Hodgkinson v. Wyatt (4 Q. B. 74), the words in 2 & 3 Vict. c. 37, s. 1, that no bill payable at or within twelve months, &c., "shall by reason of any interest taken thereon," &c., be void, were held to give validity to an usurious bill given before the statute passed. In Grant v. Kemp (2 C. & M. 636) and Freeman v. Moyes (1 Ad. & E. 338), (Littledale, J., dissentiente), the 3 & 4 Will. IV. c. 42, s. 31, "that in every action brought by an executor, such executor shall be liable to pay costs to the defendant," &c., was held to apply to actions commenced before the act passed. So the rule of Hilary Term, 2 Will. IV. r. 74, "that no costs shall be allowed on taxation to a plaintiff, upon any counts or issues upon which he has not succeeded," were held to apply to pending actions (Cox v. Thomason, 2 C. & J. 498), although the Court of Common Pleas seem to have at first doubted. In Towler v. Chatterton (6 Bing. 258) and other cases, shortly after the 9 Geo. IV. c. 14, was passed, it was held, that the words "no action shall be maintained," &c., unless such promise, &c., shall be made by some writing, signed by the party to be charged therewith," operated to deprive persons of the right to recover, after the statute passed, upon oral promises made before, even where the action was pending (a). So an alteration of the mode of proof may be made pending an action. (See Doe d. Johnson v. Liversedge, 11 M. & W. 517, and an exception, Edwards v. Sherren, 11 M. & W. 595.) It may probably be laid down, without conflicting with the general principle, that a statute altering the mode of proceeding in point of form, so as to prevent delay and hasten trials, will be construed liberally, and general words, even though not expressly prospective, will be applied to pending proceedings. This was discussed in the Supreme Court of New York, in The People v. Tibbets (4 Cowen, 384), in which, pending an information in the nature of a quo warranto, an act passed for facilitating the proceedings in such informations, and it was contended that it had no application to a pending information. The court admitted the general principle prohibiting any interference with vested rights, which had been elaborately discussed not long before by Chancellor Kent, in Dash v. Van Kleek (7 Johns, R. 503), but drew the distinction between an alteration of rights and an alteration of remedies or mere procedure, and in language most pertinent to the present sub

(a) But quære as to the correctness of these last decisions. (See Moo v. Durden, 2 Exch. 22.)

What actions within the statute.

Spirit of the act.

ject said, "What right is taken away? Are the defendants divested of their defence upon the merits? Their saying that the proceeding is hastened in point of form makes nothing for them. They have no right to complain of this. It is complaining that he is put upon his defence to day, whereas he had a right to delay it till the morrow; a singular head of vested rights; a right to delay justice. . . . . The pretence of the defendants does not merit the name of right. It relates to the remedy. The act merely says, that under its regulations the questions between the parties may peradventure be brought to trial six months earlier than they would otherwise have been. This is a very usual subject of legislative interference. Indeed the court might do the same thing, independent of the legislature. Suppose they were to make an order that all rules to plead should be ten days instead of twenty, would it lie with the parties interested to gainsay this? .. At this rate every statute by which the collection of debts or the trial of rights is rendered more speedy or effectual would be inapplicable and void in reference to subsisting rights." We think it will be found that in the majority of instances the present act will be held to apply to pending proceedings.

The statute only applies to personal actions, it not being deemed necessary to alter the proceedings in those few real actions which remain, but are of such rare occurrence in practice, viz., writ of right of dower, dower, and quare impedit, and special provisions are made for ejectment. It is doubtful whether the proceedings on the crown side of the Queen's Bench or in revenue causes (see Att.-General v. Donaldson, 7 M. & W. 422) may not be within some of its provisions, e. g. as to juries, although not within the general scope of the act. So a feigned issue under 8 & 9 Vict. c. 109, s. 19, is not an action personal (see Luard v. Butcher, 2 C. B. 858; King v. Simmonds, 7 Q. B. 289), but would be subject to the alterations where applicable. Replevin is not commenced in a superior court, even if it be a personal action, but the general enactments as to pleading will clearly include replevin, and most of the other enactments also, except where a particular exemption is made, e. g. in sect. 41. Previous, however, to stating the form of proceedings in actions personal, it is right to insert the 222nd section, which explains the true spirit of the whole statute, and not only provides most extensive powers of amendment, but renders all such amendments as may be necessary to determine the questions in dispute between the parties upon the actual merits compulsory. It will apply to every part of any proceedings in civil causes, and will, if fully carried out, effectually remedy the evil so truly described in the recital, that "the power of amendment now vested in the courts and the judges thereof is insufficient to enable them to prevent the failure of justice by reason of mistakes and objections of form." The terms of the enactment are

222. "It shall be lawful for the superior courts of Amendment. common law, and every judge thereof, and any judge sitting at nisi prius, at all times to amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments may be made with or without costs, and upon such terms as the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controvery between the parties shall be so made."

Besides this general provision, which will be more particularly considered hereafter, there are other specific enactments as to amendments; e. g., writs (sects. 21, 22), as to parties (sects. 34—39), and of pleadings (sect. 90). And by sect. 223, the judges or any eight or more of them, including the chiefs of each of the courts, are empowered to make general rules and orders for the effectual execution of the act; and by 13 & 14 Vict. c. 16, s. 1, they may, "make such alterations in the time and manner of objecting to errors in pleadings and other proceedings as to them may seem expedient." The statutes of amendment will also be in force, although it is not likely that recourse to them will be necessary. In order to amend under these last-mentioned statutes, there must be something to amend by. (See Cheese v. Scales, 10 M. & W. 491.)

II. WRIT OF SUMMONS.

All personal actions then are to be commenced by writ of summons, and there are four general forms of this writ applicable to as many different cases.

1. Where the defendant resides, or is supposed to reside, within the jurisdiction, and advantage cannot, or is not intended to be taken of the power given by the 27th section to make a special indorsement, so as to obtain final judgment without any further proceedings in default of appearance.

2. Where such special indorsement is made.

3. Where the defendant is a British subject, and resides out of the jurisdiction.

4. Where the defendant is not a British subject, and resides out of the jurisdiction.

These different forms will be treated of in their order, but the following provisions refer equally to each of them. The writ is to be issued as heretofore by the officers of the respective courts (s. 12), and it will be prepared by the plaintiff' according to the present practice, altered and modified by the directions of the act. It will presently be seen that many of these are almost identical with the former practice, and, there