Common Law Procedure Act 1852

1. Introductory Text

2. I. Commencement of Act.

3. Writs for Commencement of Actions

   1. II. Personal Actions, when Defendant resides within the Jurisdiction, to be commenced by Writ of Summons in Form No.1 of Schedule (A).

   2. III. No Form or Cause of Action to be mentioned in Writ.

   3. IV. Writ to state Names of all Defendants, and for only One Action.

   4. V. Writ to be dated of Day of issuing, and tested in Name of Chief or Senior Judge.

   5. VI. Writ to be indorsed with Name and Abode of Attorney, or a Memorandum that Writ has been sued by Plaintiff in person.

   6. VII. Attorney on Demand to declare whether Writ issued by his Authority, and to declare Name and Abode of his Client, if ordered. If Writ issued without Authority of Attorney Proceedings to be stayed.

   7. VIII. If Writ issued without Authority of Attorney Proceedings to be stayed. Indorsement of Debt and Costs on Writ and Copy of Writ for a Debt, with Notice that Proceedings will be stayed on Payment within Four Days.

   8. IX. Concurrent Writs may be issued.

   9. X. From Commencement of this Act certain Provisions of 2 W.4 c.39 repealed.

   10. XI. Renewal of Writs of Summons to save the Statute of Limitation, and for other Purposes.

   11. XII. Renewal of Writs issued before this Act.

   12. XIII. Production of renewed Writ Evidence of Commencement of Action.

   13. XIV. Writ may be served in any County.

   14. XV. Indorsement of Service to be made.

   15. XVI. As to Service of Writ on Corporation and Inhabitants of Hundreds and Towns.

   16. XVII. Proceedings where personal Service cannot be effected, but Defendant knows of the Writ, and evades Service.

   17. XVIII. As to Actions against British Subjects residing out of the Jurisdiction of Superior Courts.

   18. XIX. As to Actions against Foreigners residing out of the Jurisdiction of Superior Courts.

   19. XX. Omission to insert or indorse Matters in or on Writ not to nullify it.

   20. XXI. Substitution by Mistake or Inadvertence of One Form of Writ for another may be by Judge without Costs.

   21. XXII. Writs for Service within and without Jurisdiction may be concurrent, and vice versa.

   22. XXIII. Affidavits in certain Cases may be sworn before a Consul.

   23. XXIV. Distringas to compel Appearance or to proceed to Outlawry abolished.

   24. XXV. Special Indorsement of the Particulars of Debts or liquidated Demands may be made on the Writ. Special Indorsement to stand for Particulars of Demand.

4. Appearance, and Proceedings in default of Appearance

   1. XXVI. Appearance according to Provisions of Acts of 12 G.1 c.29, and 2 W.4 c.39, abolished.

   2. XXVII. Final Judgment upon Writ specially indorsed in default of Appearance.

   3. XXVIII. Judgment for Nonappearance where the Writ is not indorsed in the special Form.

   4. XXIX. Appearance to be entered at any Time before Judgment.

   5. XXX. Appearance by the Defendant in Person to give an Address at which Proceedings may be served.

   6. XXXI. Mode of Appearance to Writ of Summons.

   7. XXXII. Proceedings mentioned in Writ or Notice may be had and taken.

   8. XXXIII. Proceedings where only some of the Defendants appear to a Writ specially endorsed.

5. Joinder of Parties

   1. XXXIV. Nonjoinder and Misjoinder of Plaintiffs may be amended before Trial.

   2. XXXV. Nonjoinder and Misjoinder of Plaintiffs may be amended at the Trial, as in Cases of Amendments of Variances under 3 & 4 W.4 c.42.

   3. XXXVI. Upon Notice or Plea of Nonjoinder of Plaintiffs, Proceedings may be amended.

   4. XXXVII. Misjoinder of Defendants may be amended before or at Trial.

   5. XXXVIII. Upon Plea in Abatement for Nonjoinder of Defendants, Proceedings may be amended.

   6. XXXIX. Provision in the Case of subsequent Proceedings against the Persons named in a Plea in Abatement for Nonjoinder of Defendants.

   7. XL. Joinder of Claims by Husband and Wife with Claims in right of Husband.

6. Joinder of Causes of Action

   1. XLI. Different Causes of Action maybe joined, but separate Trials may be ordered.

7. Questions by Consent without pleading

   1. XLII. Questions of Fact may, after Writ issued, by Consent and Leave of a Judge, be raised without Pleadings.

   2. XLIII. Agreement may be entered into for the Payment of Money and Costs according to the Result of the Issue.

   3. XLIV. Judgment to be entered according to the Agreement, and Execution issued forthwith, unless stayed.

   4. XLV. Proceedings upon Issue may be recorded.

   5. XLVI. Questions of Law may be raised after Writ issued, by Consent, &c., without Pleading.

   6. XLVII. Agreement as to Payment of Money and Costs, according to Judgment upon Special Case.

   7. XLVIII. Costs to follow the Event, unless otherwise agreed.

8. Pleadings in general

   1. XLIX. Fictitious and needless Averments not to be made

   2. L. Judgment upon Demurrer to be given according to the very Right of the Cause.

   3. LI. Objections by way of Special Demurrer taken away.

   4. LII. Pleadings framed to embarrass may be struck out or amended.

   5. LIII. Four Days Notice substituted for Rule to declare, reply, or rejoin.

   6. LIV. Pleadings to be dated and entered as of Time of Pleading, unless Order to the contrary.

   7. LV. Profert and Oyer abolished.

   8. LVI. Document may be set forth, and be considered a Part of the Pleading in which it is set forth.

   9. LVII. Performance of Conditions precedent may be averred generally.

9. Declaration

   1. LVIII. Plaintiff to declare within a Year.

   2. LIX. Forms of Commencement, &c. of Declaration.

   3. LX. Commencement of Declaration after Plea of Nonjoinder.

   4. LXI. Declaration for Libel or Slander

10. Pleadings

    1. LXII. Rules to plead and Demand of Plea abolished.

    2. LXIII. Time for pleading, where Defendant is within Jurisdiction, to be Eight Days.

    3. LXIV. Express Colour abolished.

    4. LXV. Special Traverses abolished.

    5. LXVI. Formal Commencement and Prayer of Judgment unnecessary.

    6. LXVII. Commencement of Plea.

    7. LXVIII. Plea of Matter sub sequent to Action.

    8. LXIX. Plea Puis darrein Continuance, when and how to be pleaded.

    9. LXX. Payment into Court in certain Actions.

    10. LXXI. Payment into Court how pleaded.

    11. LXXII. No Order to pay Money into Court.

    12. LXXIII. Proceeding by Plaintiff after Payment into Court.

    13. LXXIV. Pleas to Actions partaking both of Breach of Contract and Wrong.

    14. LXXV. Payment, Set-off, and other Plead ings which can be construed distributively shall be so construed.

    15. LXXVI. Traverse of the Declaration.

    16. LXXVII. Traverse of Plea or subsequent Pleading of Defendant.

    17. LXXVIII. Traverse of Replication or subsequent Pleading of the Plaintiff.

    18. LXXIX. Joinder of Issue.

    19. LXXX. As to Pleading and demurring together.

    20. LXXXI. Several Matters may be pleaded at any Stage of the Pleadings.

    21. LXXXII. Judge's Order to plead several Matters sufficient.

    22. LXXXIII. Objections to Pleadings to be heard on Summons to plead several Matters.

    23. LXXXIV. Certain Pleas may be pleaded together without Leave.

    24. LXXXV. Signature of Counsel.

    25. LXXXVI. For pleading several Matters without Leave, Judgment may be signed.

    26. LXXXVII. One new Assignment only allowed in respect of the same Cause of Action.

    27. LXXXVIII. Pleas not to be repeated.

    28. LXXXIX. Form of Demurrer and Joinder in Demurrer.

    29. XC. Time for pleading after Amendment.

11. Examples of Pleading

    1. XCI. Forms in Schedule may be adopted.

12. Judgment by Default, and ascertaining Amount to be recovered

    1. XCII. Rule to compute abolished.

    2. XCIII. Judgment by Default for liquidated Demands final.

    3. XCIV. Inquiry of Damages may be directed to take place before the Master.

    4. XCV. Judgment for Money Demands without Distinction between Debt and Damages.

    5. XCVI. Saving as to certain Provisions of 8 & 9 W.3 c.11.

13. Notice of Trial, Inquiry, and Countermand

    1. XCVII. Time for Notice of Trial and Inquiry.

    2. XCVIII. Notice of Countermand.

    3. XCIX. Costs of the Day.

14. Judgment for not proceeding to Trial

    1. C. Statute 14 G.2 c.17 as to Judgment in case of Nonsuit repealed.

    2. CI. Proceeding where Plaintiff neglects to bring on the Cause to be tried.

15. Nisi Prius Record

    1. CII. Nisi Prius Record not to be sealed or passed.

    2. CIII. Trials in Counties Palatine.

16. Jury and Jury Process

    1. CIV. Jury Process abolished.

    2. CV. Precept by Judges of Assize to summon Jurors for Civil as well as Criminal Trials.

    3. CVI. A printed Panel to be prepared,and annexed to the Record.

    4. CVII. Sheriffs of London and Middlesex to summon Common Jurors, and prepare a Panel, to be annexed to the Record.

    5. CVIII. Special Jurors, not exceeding Forty-eight in Number, to be summoned to try all Special Jury Causes at Assizes.

    6. CIX. Mode of obtaining a Special Jury in Country Causes.

    7. CX. Special Juries in London and Middlesex, how struck.

    8. CXI. Remedy for Delay by Notice of Trial by Special Jury.

    9. CXII. Notice to Sheriff of Trial by Special Jury.

    10. CXIII. If Special Jury not summoned, Cause to be tried by a Common Jury.

    11. CXIV. View to be by Rule without Writ.

    12. CXV. Proceedings before Jurors so returned same as before this Act.

    13. CXVI. Defendant's Right to try, upon Default of the Plaintiff, preserved.

17. Admission of Documents

    1. CXVII. Admission of Documents.

    2. CXVIII. Proof of Admissions.

    3. CXIX. Proof of Notice to produce.

18. Execution

    1. CXX. Execution after Trial.

    2. CXXI. Ground Writs abolished.

    3. CXXII. Writs in Counties Palatine to be directed to the Sheriff.

    4. CXXIII. Expenses of Execution.

    5. CXXIV. Writs of Execution to remain in force for One Year and to be renewed if necessary.

    6. CXXV. Production of renewed Writ, Evidence of Renewal.

    7. CXXVI. Sheriff or Gaoler may discharge Prisoner by Authority of Attorney in the Cause.

    8. CXXVII. Proceedings for charging in Execution a Person already in Prison of the Court.

19. Proceedings to revive

    1. CXXVIII. Execution in Six Years without Revival.

    2. CXXIX. Judgment to be revived by Writ or with Leave of Court, or Judge, by Suggestion.

    3. CXXX. Proceedings upon Application for Suggestion to revive Judgment.

    4. CXXXI. Writ of Revivor, and Proceedings thereon.

    5. CXXXII. Writs of Scire facias in other Cases to be tested, directed, and proceeded upon in like Manner.

    6. CXXXIII. Appearance to Writ of Revivor.

    7. CXXXIV. As to Issue of Writ of Revivor upon Judgment more than Ten Years old.

20. Death, Marriage, and Bankruptcy

    1. CXXXV. Action not to abate by Death.

    2. CXXXVI. Proceedings in case of Death of One or more of several Plaintiffs or Defendants.

    3. CXXXVII. Proceeding in case of sole Plaintiff.

    4. CXXXVIII. Proceeding upon Death of sole or sole surviving Defendant.

    5. CXXXIX. Death between Verdict and Judgment.

    6. CXL. Proceedings in case of Death after Interlocutory, and before final Judgment.

    7. CXLI. Marriage not to abate Action.

    8. CXLII. Bankruptcy and Insolvency of Plaintiff, when not to abate Action.

21. Arrest of Judgment and Judgment non obstante veredicto

    1. CXLIII. Upon Motion in arrest of Judgment, pursuant to 1 W.4 c.7, or for Judgment Non obstante veredicto, omitted Facts may by Leave of the Court be suggested.

    2. CXLIV. Judgment to follow Result of Suggestion.

    3. CXLV. Costs of abortive Issues.

22. Error

    1. CXLVI. Error to be brought within Six Years.

    2. CXLVII. Proviso for Disabilities.

    3. CXLVIII. Writ of Error abolished.

    4. CXLIX. Error in Law how brought.

    5. CL. Error not Supersedeas till Service of the Copy of the Note and Grounds of Error.

    6. CLI. Bail in Error.

    7. CLII. Suggestion instead of Assignment of and Joinder in Error.

    8. CLIII. Roll to be made up and Suggestion entered by Plaintiff in Error.

    9. CLIV. Error brought by One of several Persons against whom Judgment has been given.

    10. CLV. Judgment Roll to be brought into Court instead of Transcript.

    11. CLVI. Jurisdiction of Courts of Error over the Proceedings.

    12. CLVII. Court of Error to have like Powers with Court below.

    13. CLVIII. Proceedings in Error in Fact.

    14. CLIX. Plaintiff may discontinue Proceedings in Error.

    15. CLX. Defendant may confess Error, and consent to Reversal of Judgment.

    16. CLXI. Death of Plaintiff in Error no Abatement.

    17. CLXII. Providing for Death of One of several Plaintiffs in Error.

    18. CLXIII. Proceedings upon Death of' sole Plaintiff or of all the Plaintiffs in Error.

    19. CLXIV. Death of Defendant in Error no Abatement.

    20. CLXV. Proceedings upon Death of One of several Defendants in Error.

    21. CLXVI. Proceedings upon Death or sole Defendant or of all the Defendants in Error.

    22. CLXVII. Marriage not to abate Proceedings in Error.

23. Ejectment

    1. CLXVIII. Ejectment to be brought by Writ.

    2. CLXIX. Form and Duration of Writ of Ejectment.

    3. CLXX. Service of Writ of Ejectment.

    4. CLXXI. Appearance of Persons named in the Writ.

    5. CLXXII. Appearance of Persons not named.

    6. CLXXIII. Appearance and Defence by Landlord.

    7. CLXXIV. Notice to defend for Part only.

    8. CLXXV. Want of Certainty cured by Particulars.

    9. CLXXVI. Defence by Persons not in possession.

    10. CLXXVII. Judgment for Default of Appearance or Defence.

    11. CLXXVIII. Issue how made up.

    12. CLXXIX. Special Case may be stated.

    13. CLXXX. Trial of Issue.

    14. CLXXXI. Verdict when Title appears to have expired before Trial.

    15. CLXXXII. Trial may ordered to take place in any County.

    16. CLXXXIII. Nonappearance at Trial.

    17. CLXXXIV. Special Verdict, and Bill of Exceptions.

    18. CLXXXV. Judgment upon Finding for Claimant.

    19. CLXXXVI. Judgment upon Finding for Defendant.

    20. CLXXXVII. Execution for Recovery of Possession and Costs may be joint or separate.

    21. CLXXXVIII. Defence by joint Tenants, Tenants in Common, or Coparcener.

    22. CLXXXIX. Trial and Judgment in Ejectment against Joint Tenants, Tenants in Common, and Coparceners.

    23. CXC. Action not to abate by Death.

    24. CXCI. Proceeding upon Death before Trial where Right survives.

    25. CXCII. Proceedings upon Death before Trial, where Right does not survive.

    26. CXCIII. Upon Death of One of several Claimants having obtained a Verdict.

    27. CXCIV. Proceedings in case of Death of Claimant, where Right does not survive.

    28. CXCV. Proceedings upon Death of One of several joint Defendants.

    29. CXCVI. Upon Death of ali the Defendants in Ejectment before Trial.

    30. CXCVII. Upon Death of all Defendants in Ejectment after Verdict.

    31. CXCVIII. Upon Death before Trial of Defendant in Ejectment, who defends separately for Part.

    32. CXCIX. Upon Death of Defendant defending separately for Property in respect of which others also defend.

    33. CC. Claimant may discontinue by Notice

    34. CCI. Discontinuance of Action by One of several Claimants.

    35. CCII. Judgment for not proceeding to Trial after Notice.

    36. CCIII. Defendant may confess the Action.

    37. CCIV. Confession by One of several Defendants defending separately for Part.

    38. CCV. Confession by One of several Defendants who defend for same Property.

    39. CCVI. Formal Entry of Judgment on the Roll unnecessary for Purposes of Execution.

    40. CCVII. Effect of Judgment.

    41. CCVIII. Error and Bail in Error in Ejectment.

    42. CCIX. Tenants to give Notice of Ejectment to Landlord.

    43. CCX. Proceedings in Ejectment by Landlord for Nonpayment of Rent.

    44. CCXI. Lessee proceeding in Equity not to have Injunction or Relief without Payment of Rent and Costs.

    45. CCXII. Tenant paying all Rent with Costs, Proceedings to cease.

    46. CCXIII. Ejectment by Landlord against Tenant holding over after Expiration of Term or Determination of Tenancy by Notice to quit. Rule or Summons for the Tenant to give Bail. On Rule or Summons absolute, if Tenant shall not conform, Judgement to be for the Landlord.

    47. CCXIV. On Trial of any Ejectment between Landlord and Tenant, Juries to give Damages for mesne Profits down to the Verdict, or to a Day specified therein.

    48. CCXV. On Trials after Bail found, Judge shall not stay the Execution except by Consent, or on Tenant's finding Security. Bail in Error to discharge such Security.

    49. CCXVI. Recognizances to be taken as other Recognizances of Bail; Actions on them limited.

    50. CCXVII. Landlord to recover Possession of Lands, &c. after Service of Writ in Ejectment.

    51. CCXVIII. Saving of former Remedies.

    52. CCXIX. In Ejectment by-Mortgagee, the Mortgagor's rendering the Principal, Interest, and Costs in Court shall be deemed a full Satisfaction, and the Court may compel the Mortgagee to re-convey.

    53. CCXX. Not to extend to Cases where-the Right of Redemption is controverted, or the Money due not adjusted; or to prejudice any subsequent Mortgage.

    54. CCXXI. Jurisdiction of Courts and Judges.

24. Amendment

    1. CCXXII. Amendment.

25. Power to Judge to make Rules and frame Writs and Proceedings

    1. CCXXIII. General Rules may be made by the Judges.

    2. CCXXIV. New Forms of Writs and other Proceedings.

    3. CCXXV. Rules may be made by each Court for Government of its Officers.

26. Effect of Injuction

    1. CCXXVI. Injunctions and Orders to stay Proceedings to have a specific Effect.

    2. CCXXVII. Interpretation of Terms.

    3. CCXXVIII. Her Majesty may direct all or Part of this Act to extend to any Court of Record.

    4. CCXXIX. Certain of the Provisions of this Act to extend and apply to the Court of Common Pleas at Lancaster and the Court of Pleas at Durham.

    5. CCXXX. Powers given by this Act to the Judges of the Superior Courts at Westminster to make Rules, &c. may be exercised by Judges of the Court of Common Pleas at Lancaster and Court of Pleas at Durham as to those Courts.

    6. CCXXXI. Judges may make Rules for applying other Provisions of this A ct to Court of Common Pleas at Lancaster and Court of Pleas at Durham.

    7. CCXXXII. Provisions to apply to Masters of Courts at Westminster to apply to Prothonotaries of Court of Common Pleas at Lancaster and Court of Pleas at Durham, and their Deputies, &c.

    8. CCXXXIII. As to Proceedings in Error.

    9. CCXXXIV. Certain Provisions of 4 & 5 W.4 c.62 and 2 & 3 Vict. c.16 repealed.

    10. CCXXXV. Short Title of Act.

    11. CCXXXVI. Act not to extend to Ireland or Scotland.

27. 1. SCHEDULE (A.) referred to in the foregoing Act.

    2. SCHEDULE (B.)

       FORMS OF PLEADINGS