CHAPTER XVII.

INCIDENTAL PROCEEDINGS BEFORE TRIAL.

THERE are many interlocutory and incidental proceedings which take place in the course of an action before trial, some of which should be here noticed.

If the defendant has not sufficient information of the Particulars plaintiff's claim from the indorsement on the writ of sum- of demand mons or from his statement of claim, or if the particulars and set-off. delivered in the action be not sufficiently specific, an order may be obtained for his delivering further particulars of his claim or demand. This order is obtained at chambers upon summons, as mentioned ante, p. 53. So if the plaintiff has not sufficient information of the defendant's counter-claim, or set-off, particulars of same may be obtained in the same way.

an act.

By O. 57, r. 6, a court or a judge shall have power to Enlarging enlarge (a) or abridge the time appointed by these rules or time for fixed by any order enlarging time for doing any act or taking doing any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed." Under this rule applications are frequently made at chambers for further time to deliver a pleading or the like.

aside pro

ceedings

The court or a judge may set aside or stay proceedings Setting where the taking of the same is an abuse of the authority of the court, or where they are taken against good faith. against And if an action be brought against a person for some- good faith, thing done in the performance of a public duty, and there &c. be clearly no foundation whatever for the same, the court will stay the proceedings if they consider the same frivolous and vexatious (Dawkins v. Prince Edward of Saxe-Weimar, 45 L. J., Q. B. 567).

If a proceeding is not in compliance with the rules and practice of the court, as if it be informal or taken too soon or too late, it may sometimes be set aside for irregularity.

(a) As to the costs of an application to extend time, see r. 22, 12 Aug. 1875..

F

PART IV. Setting aside pro

ceedings for irre

Thus a judgment by default signed before the prescribed time may be set aside. But an application to set aside proceedings for irregularity will not be allowed unless made within a reasonable time, nor if the party applying has taken a fresh step after knowledge of the irregularity. The gularity. application must in general be made at chambers, and not to the court. By O. 59, "non-compliance with any of these rules shall not render the proceedings in any action void unless the court or a judge shall so direct, but such proceedings may be set aside, either wholly or in part, as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the court or judge shall think fit.”

Amendinent.

Consolidation of actions.

So also applications are frequently made at chambers for leave to amend pleadings or other proceedings. The courts and judges have extensive powers of amendment, as noticed in different parts of this work.

By O. 51, r. 4, actions in division or divisions any be may consolidated by order of the court or a judge in the manner heretofore in use in the Superior Courts of Common Law (a). Applications to consolidate actions were most usually made in actions against underwriters upon policies of insurance. Where before the Judicature Acts several actions were brought upon the same policy of insurance, the court or a judge, upon application of the defendants, would grant a rule or order to stay the proceedings in all the actions but one, the defendants undertaking to be bound by the verdict in such action, and to pay the amount of their several subscriptions and costs if the plaintiff should recover; such other terms were also imposed as the court or judge might think proper. The rule or order might be obtained, notwithstanding the plaintiff refused his consent to it, and if the action which was tried were determined in favour of the plaintiff, the other defendants might (if necessary) obtain a stay of proceedings in their several actions, upon payment of the amount of their subscriptions and costs. It was at one time thought that a consolidation rule bound the plaintiff as well as the defendant, but afterwards a different doctrine was established, and it was held that after a consolidation rule had been obtained, and the defendant had obtained a verdict, the plaintiff might proceed in the other actions (Doyle v. Douglas, 4 B. & Ad. 544). As to consolidating actions before the Judicature Acts, see Chit. Arch. by Prentice. p. 1357.

Before the Judicature Acts if several actions between the

(a) See O. 16, r. 9, ante, p. 41.

same parties were brought for the same cause, or substantially CH. XVII. so, the court might stay the proceedings in all but one.

If the plaintiff permanently reside out of the jurisdiction Security of the court, an order may be obtained for staying the pro- for costs. ceedings in the action until he give security for costs. A peer privileged from arrest, or a foreign ambassador or his servant, will not be ordered to give such security. Nor will a plaintiff be compelled to do so merely because he is a bankrupt or insolvent, unless he sue for the benefit of a third party; nor when his absence is only temporary. If there be several plaintiffs, and one of them reside within the jurisdiction, this security will not in general be ordered. The application for the security is made after the defendant has appeared, and in general before issue joined (R. 22, H. T. 1853). It is in general made at chambers and not to the court. By R. 7, 23 Feb., 1876, in any cause or matter in which security for costs is required, the security shall be of such amount, and given at such time or times, and in such manner and form as the court or a judge shall direct.

Only a few remarks will be made on the subject of arresting Arresting the defendant before judgment, as this course is now seldom defendant adopted.

By the Debtor's Act, 1869, s. 6, arrest on mesne process was abolished, and now when the plaintiff, in any action in which, if brought before the commencement of this Act, the defendant would have been liable to arrest, proves at any time, before final judgment, by evidence on oath, to the satisfaction of a judge, that the plaintiff has good cause of action against the defendant, to the amount of fifty pounds or upwards, and that there is probable cause for believing that he is about to quit England, unless he is apprehended, and that his absence from England will materially prejudice the plaintiff in the prosecution of his action, such judge may, in a certain prescribed manner, order the defendant to be arrested and imprisoned for a period not exceeding six months, unless he sooner give the prescribed (a) security, not exceeding the amount claimed in the action, that he will not go out of England without leave of the court. When the action is for a penalty, or sum in the nature of a penalty, other than a penalty in respect of any contract, it is not necessary to prove that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his (a) In general the security to be given by the defendant is a deposit in tourt of the amount, or a bond to the plaintiff by the defendant with two sureties (R. 7, M. T. 1869.) See form of order for arrest, App. (F.).

before

judgment.

PART IV. action, and the security given (instead of being that the defendant will not go out of England) is to the effect that any sum recovered against the defendant in the action shall be paid, or the defendant rendered to prison, s. 6. The application for the order for the arrest is made ex parte to a judge at chambers upon affidavits.

The royal family, the servants of the queen, peers and peeresses, are privileged from arrest; ambassadors and other public ministers of foreign princes or states at this court, and their domestics and domestic servants, are also protected from arrest. Members of the House of Commons are so privileged during the session of parliament, and for a convenient time, it seems forty days, before and after it. The judges of the Supreme Court of Justice are privileged from arrest, and so are some other persons. A defendant may be arrested as above for a debt or money demand, or for unliquidated damages. A defendant cannot, in general, be so arrested for a tort, but in some cases a judge will order his arrest, where it clearly appears that the damages sustained by the plaintiff exceed £50.

Where an order for the arrest is made it must be endorsed with the name and place of abode of the plaintiff's solicitors, &c. (R. 6, M. T. 1869). It is taken, with a copy of the same, to the office of the sheriff's deputy, in London, with instructions to execute it. The arrest must be made within one calendar month from the date of the order, and within the county referred to in the same; but concurrent orders may be made for the arrest in different counties (See R. 6-10, M. T. 1869).

Persons as witnesses, barristers, solicitors, &c., connected with an action, and attending in the course of it, are privileged from arrest whilst going to, attending, and returning from court or a judge at chambers. Clergymen also have a privilege from arrest whilst performing divine service, and eundo et redeundo. In other cases also there is this temporary privilege.

The defendant may, at any time after the arrest, apply to rescind or vary the order, or to be discharged from custody, or for such other relief as may be just (R. 6, M. T. 1869).

By R. 10, M. T. 1869, upon payment into court of the amount mentioned in the order, a receipt must be given by the proper officer, and upon receiving the bond, or other security, a certificate to that effect must be given, signed or attested by the plaintiff's solicitor: upon the delivery of such receipt or certificate to the sheriff the defendant is discharged out of custody.

Except

Applications are frequently made, both by plaintiffs and CH. XVII. defendants, during the pendency of an action for a discovery, Discovery or inspection of documents in the possession or control of and the opposite party. By O. 31, r. 1, the plaintiff may, at the Inspection. time of delivering his statement of claim, or at any subsequent time not later than the close of the pleadings, and a defendant may, at the time of delivering his defence, or at any subsequent time not later than the close of the pleadings, without any order for that purpose, and either party may at any time, by leave of the court or a judge, deliver interrogatories in writing for the examination of the opposite party or parties, or any one or more of them, with a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer; but no party can deliver more than one set of interrogatories to the same party without an order for that purpose. under very special circumstances leave will not be given to a defendant to interrogate the plaintiff before the statement of defence (Disney v. Longbourne, 45 L. J. Ch. 532; L. R. 2 Ch. 704). By O. 31, r. 4, if any party to an action be a body corporate or a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, an order may be made at chambers allowing the delivery of interrogatories to any member or officer of such corporation, &c. (The Republic of Costa Rica v. Erlanger, 45 L. J. Ch. 145). Interrogatories, the answers to which may tend to criminate, cannot be administered (Atherley v. Harvey, 46 L. J. Q. B. 518). Interrogatories may be in the Form No. 7 in Appendix (B.), with such variations as circumstances may require (0. 31, r. 3). If interrogatories are exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the same, and the answers thereto, will in the adjusting the costs of the action have to be borne by the party in fault (O. 31, r. 2).

Any party called upon to answer interrogatories, may, within four days after service of the same, apply at chambers to strike out any interrogatory, on the ground that it is scandalous or irrelevant (a) or is not put bonâ fide for the purposes of the action, or that the matter inquired after is not sufficiently material at that stage (b) of the action, or on any other ground; and the judge, if satisfied that any interrogatory is objectionable, may order it to be struck out (0. 31, r. 5).

(a) Mansfield v. Childerhouse, 46 L. J. Ch. 30.

(b) Mercier v. Cotton, 46 L. J. Q. B. 184, L. R. 1 Q. B. 442.