NEW RULES,

HILARY TERM, 1853.

WHEREAS the practice of the Courts of Queen's Bench, Common Pleas, and Exchequer, in civil actions, in respect of which the said Courts possess a common jurisdiction, has been to a great extent superseded or altered by the Common Law Procedure Act, 1852, and it is expedient that the written rules of practice of the said Courts should be consolidated and rendered uniform: It is ordered, that all existing written rules of practice in any of the said Courts in regard to such civil actions, save and except as regards any step or proceeding heretofore taken, shall be and the same are hereby annulled, and that the practice to be observed in the said courts with respect to the matters hereafter mentioned shall be as follows; that is to say,

WRIT OF SUMMONS.

1. When a writ of summons is indorsed in the special form mentioned in sec. 27 of the Common Law Procedure Act, 1852, the following are the amounts which may be indorsed by the plaintiff's attorney or agent upon the writ for costs; and to include mileage:

In Actions above 201.

£ s. d.

In town causes 3 80

In country or agency) £ s. d. cases (including 4 0 0 mileage) .

In Actions under 201.

In town causes 2 14 0

In country or agency

cases (including 3 2 0 mileage).

Where the plaintiff's attorney, at the time of issuing the writ, claims more than the sums fixed as above, the indorsement on the writ of summons in respect of costs shall be as follows: "Such sum as shall be allowed on taxation for costs." And in case the plaintiff shall be found not entitled to more costs than such fixed sums, or if more than one-sixth shall be disallowed, the plaintiff's attorney shall pay the costs of taxation. So, if the attorney has indorsed on the writ one of the fixed sums for the costs of judgment, and claims more costs on signing judgment, and on taxation shall be found not entitled to more than such sum, or if more than one-sixth be taken off on taxation, the plaintiff's attorney shall in like manner pay the costs of taxation.

APPEARANCE.

2. If two or more defendants in the same action shall appear by the same attorney and at the same time, the names of all the defendants so appearing shall be inserted in one appearance.

See M. T., 1 Wm. 4, r. 3, Exch.

ATTORNEY AND GUARDIAN.

3. An attorney not entering an appearance in pursuance of his undertaking shall be liable to an attachment.

See, for prior rules, R. M. 1654, s. 10, Q. B., 1654, 13 C. P., 1 Chit. Arch. 76 n. (z).

and

4. No attorney shall be changed without the order of a judge.

See R. M. 1654, ss. 10-13; Lil. Prac. Reg. 134; Dax. 28. For form of summons, see Chit. Forms, 12.

The order must be served on the opposite party; Reg. v. Sheriff of Middlesex, 2 Dowl. 147; Phillips v. Berkeley, 5 Dowl. 279.

5. A special admission of prochein amy, or guardian, to prosecute or defend for an infant, shall not be deemed an authority to prosecute or defend in any but the particular action or actions specified.

This is a re-enactment of H. T., 2 Wm. 4, r. 2.

JOINDER OF PARTIES.

6. Whenever a plaintiff shall amend the writ after notice by the defendant, or a plea in abatement of a nonjoinder by virtue of the Common Law Procedure Act, 1852, sec. 36, he shall file a consent in writing of the party or parties whose name or names are to be added, together with an affidavit of the handwriting, and give notice thereof to the defendant, unless the filing of such consent be dispensed with by order of the court or a judge.

PLEADINGS.

7. No side bar rule for time to declare shall be granted.

The practice will now, it seems, be the same as it was in the Exchequer before R. H., 2 Wm. 4, r. 39; and it will be necessary to obtain a judge's order.

See as to rules to declare, &c., 15 & 16 Vict., c. 76, s. 53, ante p. 31, and see note to sec. 58.

8. The defendant shall not be at liberty to waive his plea, or enter a relicta verificatione after a demurrer, without leave of the court or a judge, unless by consent of the plaintiff or his attorney.

This rule extends H. T., 2 Wm. 4, r. 46. The part in italics is new. As to the former practice of entering a relictâ verificatione, and form thereof, see Rastell's Entries, Appel de Mort. 49, pl. 6, and 52, pl. 15; and the cases of Cooper v. Painter, and Hutton v. Turk, cited in 13 M. & W. 734, n. The latter case is better reported in 2 D. & L. 712, n.

9. In case the time for pleading to any declaration, or for answering any pleadings, shall not have expired before the 10th day of August in any year, the party called upon to plead, reply, &c. shall have the same number of days for that purpose after the 24th day of October, as if the declaration or preceding pleading had been delivered or filed on the 24th of October.

This is a re-enactment of M. T., 3 Wm. 4, r. 12. By 2 Wm. 4, c. 39, s. 11, no plea shall be delivered between the 10th of August and the 24th of October. Where the time for pleading expired on the 10th of August, judgment for want of a plea cannot be signed on the 11th; Morris v. Hancock, 1 Dowl. N. S. 320; Severin v. Leicester, 12 Q. B. 949. See also Trinder v. Smedley, 3 Dowl. 87.

10. Where a defendant shall plead a plea of judgment recovered (a), he shall in the margin of such plea state the date of such judgment, and if such judgment shall be in a court of record, the number of the roll on which such proceedings are entered, if any; and, in default of his so doing, the plaintiff shall be at liberty to sign judgment as for want of a plea; and in case the same be falsely stated by the defendant, the plaintiff, on producing a certificate from the proper officer or person having the custody of the records or proceedings of the court where such judgment is alleged to have been recovered, that there is no such record or entry of a judgment as therein stated, shall be at liberty to sign judgment as for want of a plea (b).

This is a re-enactment of H. T., 4 Wm. 4, r. 8, except as shown below in notes (a) and (b). It would seem that a defendant cannot produce at the trial a judgment of a sufficient date or roll to that stated in the margin. See Rastall v. Straton, 1 H. Bl. 49; Few v. Backhouse, 8 A. & E. 794. As to what is a plea within this rule, see Brokenshir v. Monger, 9 M. & W. 111, 1 Dowl. N. S. 378, S. C; Power v. Izod, 3 Dowl. 140, 1 Bing. N. C. 304, S. C.

(a) In the former rule the words "in another court" were here inserted.

(b) In the former rule the words "by leave of the court or a judge" were here inserted.

PAYMENT OF MONEY INTO COURT.

11. No affidavit shall be necessary to verify the plaintiff's signature to the written authority to his attorney to take money out of court, unless specially required by the Master.

See ante, 15 & 16 Vict., c. 76, s. 72, p. 40.

12. When money is paid into court in respect of any particular sum or cause of action in the declaration, and the plaintiff accepts the same in satisfaction, the plaintiff, when the costs of the cause are taxed (a), shall be entitled to the costs of the cause in respect of that part of his claim so satisfied, up to the time the money is so paid in and taken out, whatever may be the result of any issue or issues in respect of other causes of action, and if the defendant succeeds in defeating the residue of the claim, he will be