PART II.

EVIDENCE IN PARTICULAR ACTIONS.

Effect of the Judicature Acts, 1873, 1875.

THE J. Acts, 1873, 1875, made great alterations in the practice and procedure of the courts. All the superior courts at Westminster were thereby constituted divisions of the High Court of Justice, each division having all the jurisdiction which was previously vested in each or either of the courts before they were consolidated. See Pinney v. Hunt, 6 Ch. D. 98. And by the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 93, the jurisdiction of the London Court of Bankruptcy has been also transferred to the High Court.

By the J. Act, 1873, effect is to be given by every division to equitable estates, interests, and principles, in the same way as they were previously recognised by the courts of equity; mortgagees and assignees of choses in action may in general sue in their own names; stipulations as to time, &c., are not to be considered of the essence of a contract where they were not so in equity, and in general equity rules are to prevail. The principal provisions of the J. Act, 1873, relating to these subjects are as follows:

Effect to be given to equitable estates and interests.

Sect. 24. "In every civil cause or matter commenced in the High Court of Justice, law and equity shall be administered by the High Court of Justice and the Court of Appeal respectively according to the rules following:

(1.) "If any plaintiff or petitioner claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim whatsoever asserted by any defendant or respondent in such cause or matter, or to any relief founded upon a legal right, which heretofore could only have been given by a court of equity, the said courts respectively, and every judge thereof, shall give to such plaintiff or petitioner such and the same relief as ought to have been given by the Court of Chancery in a suit or proceeding for the same or the like purpose, properly instituted before the passing of this act."

(2.) "If any defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against any deed, instrument, or contract, or against any right, title, or claim asserted by any plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to any claim of the plaintiff or petitioner in such cause or matter, the said courts respectively, and every judge thereof, shall give to every equitable estate, right, or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect, by way of defence against the claim of such plaintiff or petitioner, as the Court of Chancery ought to have given if the same or the like matters had been relied on by way of defence in any suit or proceeding instituted in that court for the same or the like purpose before the passing of this act."

(3.) "The said courts respectively, and every judge thereof, shall also have power to grant to any defendant in respect of any equitable estate or right, or other matter of equity, and also in respect of any legal estate, right, or title claimed or asserted by him, all such relief against any plaintiff, or petitioner as such defendant shall have properly claimed by his pleading,

The Judicature Acts, 1873, ss. 24, 25.

281 and as the said courts respectively, or any judge thereof, might have granted in any suit instituted for that purpose by the same defendant against the same plaintiff or petitioner; and also all such relief relating to or connected with the original subject of the cause or matter, and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of court or any order of the court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose; and every person served with any such notice shall thenceforth be deemed a party to such cause or matter with the same rights, in respect of his defence against such claim, as if he had been duly sued in the ordinary way by such defendant."

(4.) "The said courts respectively, and every judge thereof, shall recognise and take notice of all equitable estates, titles, and rights, and all equitable duties and liabilities appearing incidentally in the course of any cause or matter, in the same manner in which the Court of Chancery would have recognised and taken notice of the same in any suit or proceeding duly instituted therein before the passing of this act."

(6.) "Subject to the aforesaid provisions for giving effect to equitable rights and other matters of equity in manner aforesaid, and to the other express provisions of this act, the said courts respectively, and every judge thereof, shall recognise and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations, and liabilities existing by the common law or by any custom or created by any statute, in the same manner as the same would have been recognised and given effect to if this act had not passed by any of the courts whose jurisdiction is hereby transferred to the said High Court of Justice."

(7.) "The High Court of Justice and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them by this act, in every cause or matter pending before them respectively, shall have power to grant, and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter; so that, as far as possible, all matters so in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such

matters avoided."

Mortgagor may sue in

his own

name.

By sect. 25, (5.) "A mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person." See Fairclough v. Marshall, 4 Ex. D. 37 C. A.

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Assignee of chose in action may sue in his

(6.) Any absolute assignment, by writing under the hand of the assignor (not purporting to be by way of charge only), of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been, effectual in law (subject to all equities which would have been

own name.

entitled to priority over the right of the assignee if this act had not passed), to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor." See hereon Young v. Kitchin, 3 Ex. D. 127; Brice v. Bannister, 3 Q. B. D. 569, C. A.; National Provincial Bank of England v. Harle, 6 Q. B. D. 626.

as to time, &c.

(7.) "Stipulations in contracts as to time or otherwise, which would not, before the passing" (August 5th, 1873) " of this act, have been Stipulations in contracts deemed to be or to have become of the essence of such contracts in a court of equity, shall receive in all courts the same construction and effect as they would have heretofore received in equity." See hereon post, p. 295. (11.) "Generally, in all matters not herein before particularly mentioned in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail." For instances of the application of this rule, see Bustros v. White, and Bullock v. Corrie, ante, p. 146, and Grant v. Holland, 3 C. P. D. 180.

Equity rules to prevail.

It must, however, be observed that the effect of the act is not to abolish the distinction between legal and equitable estates. Clements v. Matthews, 11 Q. B. D. 814, per Cotton, L. J.

Rules as to

debts provable.

By the J. Act, 1875, s. 10 [repealing J. Act, 1873, s. 25 (1)] "in the administration by the court of the assets of any person who creditors and may die after the commencement of this act" (1st Nov. 1875), "and whose estate may prove to be insufficient for the payment in full of his debts and liabilities, and in the windingup of any company under the Companies Acts, 1862 and 1867, whose assets may prove to be insufficient for the payment of its debts and liabilities and the costs of winding up; the same rules shall prevail and be observed as to the respective rights of secured and unsecured creditors, and as to debts and liabilities provable, and as to the valuation of annuities and future and contingent liabilities respectively, as may be in force for the time being under the Law of Bankruptcy with respect to the estates of persons adjudged bankrupt; and all persons who in any such case would be entitled to prove for and receive dividends out of the estate of any such deceased person, or out of the assets of any such company, may come in under the decree or order for the administration of such estate, or under the winding-up of such company, and make such claims against the same as they may respectively be entitled to by virtue of this act." The decisions on the effect of this section will be found under the several subjects to which it relates.

Rules, 1883, relating to Pleading.

It will be convenient here to give a summary of the Rules, 1883, so far as they affect pleading.

By Rules, 1883, O. xvi., rr. 1, 4, 11, ante, p. 86, objection on the ground of non-joinder or mis-joinder of parties is no longer a defence, and ample powers of amendment are given.

By O. xix., r. 4, "every pleading shall contain and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved."

R. 5 provides that the forms given in Appendices C., D., and E. shall be used where applicable.

Rules, 1883, relating to Pleading.

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R. 6. "In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars with dates and items, if necessary, shall be stated in the pleading, provided that if the particulars be of debt expenses or damages,' reference to particulars otherwise delivered shall be sufficient, if they exceed 3 folios.

R. 12. "Nothing in these Rules contained shall affect the right of any defendant to plead not guilty by statute. And every defence of not guilty by statute shall have the same effect as a plea of not guilty by statute has heretofore had, but if the defendant so plead, he shall not plead any other defence to the same cause of action without the leave of the court or a judge." See further O. xxi., r. 19, post, p. 284.

R. 13. "Every allegation of fact in any pleading not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition."

R. 14. "Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant (as the case may be); and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case for the plaintiff or the defendant shall be implied in his pleading."

R. 15. "The defendant or plaintiff (as the case may be) must raise by his pleading all matters which show the action or counter-claim not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence or reply, as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as for instance, fraud, Statute of Limitations, release, payment, performance, facts showing illegality either by statute or common law, or Statute of Frauds."

R. 16. "No pleading, not being a petition or summons, shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same."

R. 17. "It shall not be sufficient for a defendant, in his statement of defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages."

R. 18. "Subject to the last preceding rule, the plaintiff by his reply may join issue upon the defence, and each party in his pleading (if any) subsequent to reply may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation of facts in the pleading upon which issue is joined, but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted." See also O. xxvii., r. 13, post, p. 284.

R. 19. "When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with divers circumstances, it shall not be sufficient to deny it along with those circumstances."

R. 20. "When a contract, promise, or agreement is alleged in any plead

ing, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, promise, or agreement, whether with reference to the Statute of Frauds, or otherwise." O. xxi., rr. 1, 2, 3, 5, will be found sub tit. Defences to simple contracts, post. R. 4. "No denial or defence shall be necessary as to damages claimed, or their amount: but they shall be deemed to be put in issue in all cases unless expressly admitted."

R. 19. "In every case in which a party shall plead the general issue, intending to give the special matter in evidence, by virtue of an act of parliament, he shall insert in the margin of his pleading the words 'by statute, together with the year of the reign in which the act of parliament on which he relies was passed, and also the chapter and section of such act, and shall specify whether such act was public or otherwise, otherwise such defence shall be taken not to have been pleaded by virtue of any act of parliament." By O. xix., r. 12, ante, p. 283, the defence of "not guilty, by statute," is retained.

R. 20. "No plea or defence shall be pleaded in abatement."

O. xxiii., r. 6. "No new assignment shall be necessary or used. But everything which was formerly alleged by way of new assignment may hereafter be introduced by amendment of the statement of claim or by way of reply."

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O. xxv., r. 2. Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause, at or after the trial." As to arguments on points of law, vide ante, pp. 266, 267.

O. xxvii., r. 13. "If the plaintiff does not deliver a reply, or any party does not deliver any subsequent pleading within the period allowed for that purpose, the pleadings shall be deemed to be closed at the expiration of that period, and all the material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue."

O. xxxvi., r. 58. "Where damages are to be assessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment."

The Rules relating to Set-off and Counter-claim will be found post, sub tit. Set-off and Counter-claim.

Reference is made in appropriate parts of this work to the various sections of the J. Acts, and the Rules, 1883, affecting principles of law or the practice at Nisi Prius.

ACTIONS FOUNDED ON SIMPLE CONTRACT.

In the early editions of this work an alphabetical arrangement of particular actions, in the order of the known forms of action, was adopted for convenient reference. These forms have now become obsolete, and this arrangement has therefore been recast in the following pages, and the actions are distributed under the two heads still recognised for some purposes, namely, of actions on contracts, simple or by specialty, and actions for wrongs independent of contract. The legal reader, however, will not require to be told that a strict adherence to this, or any other distribution of the subject, is practically impossible, and he will occasionally find under one head decisions which are also applicable to another and different head.