Common Law Procedure Act 1862 (SA)

ANNO VICESIMO QUINTO ET YICESIMO SEXTO

A.D. 1862.

No. 3.

An Act for the+further Amendment of the Process, Practice, and Mode

of Pleading in and Enlarging the Jurisdiction o f the i5'2~prenze

court of &uth Azlstralia. .

[Assented to, 21st October, 1862.1

HEREAS it is desirable further to improve the process, P E U ~ ~ ~ ~.

practice, and mode of pleading on the Common Law Side of the Supreme Court of South ,4ustralia, and in Borne respects to enlarge the jurisdictian of the said Court-Be it therefore Enacted, 'by the Governor-in-Chief of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows :-

Relief against Forfeiture.

1. In the case of any cjcctment for a forfeiture brought for non- Relief ag-t for-

feiture for nonpap

payment of rent, the Court or a Judge shall have power, upon rule	,f
or summons, to give relief in a summary manner, but subject to

appeal as hereinafter mentioned, up to and within the like time, after x1.6 ~~~

execution executed, and subject to the same terms and conditions in	+>
all respects, as to payment of rent, costs, and otherwise, as in the Supreme Court in its equitable jurisdiction; and if the lessee, his executors, administrators, or assigns, shall upon such proceeding be relieved, he and they shall hold the demised lands according to the lease thereof made, without any new lease.

2. In the case of any cjectment for a forfeiture for breach of a Relief againstfor-

covenant or condition to insure against loss or damage by fire, the in,-g.,	feiture for non.
Court or a Judge shall havc power, upon rule or summons, to give

F relief

relief in a summary manner, but subject to appeal as hereinafter

mentioned, in a l l cases in which such relief may now be obtai

the Supreme Court, under the provisions of an Act of the Gov

and Parliament of South Australia, passed in the Session of Parlia?

meat held in the twenty-third year of the present reign, intitulec$',

An Act to Amend the Law of Property and for other Purposes,"'

and upon such terms as would be imposed in such Court.

Minute of relief 3. Where such relief shall bc granted, the Court or a Judge shall

grmted.

direct a minute thereof to be made, by endorsement on the lease or

otherwise.

Appeal,

Appeal to the Court 4. Any order made by a .Judge upon an application for relief under the provisions of this Act shall be subject to an appeal to the Court, and may be discharged, varied, or set aside by the Court upon such terms as the Court shall think fit, on application made thereto by any party dissatisfied with such order.

h m order of Judge.

Interpleader Proceedings.

Relief where noods 5. Where an action has been commenced in respect of a common chattels have been taken, or are intended to be taken, in execu- tion under process issued from the Court, and the defendant in such action, or the Sheriff, or other officer, has applied for relief unden: the provisions of an Act made and passed in the Session of Parliament held in the first and second year of thc reign of His

are taken in eiecution

,hr , , ,, ,, law claim, for the recovery of money or goods, or-where goods and

preme COWL

L ''-9 late Majesty King Williarn the Fourth, intituled An Act to enable

Courts of Law to give Relief against Adverse Claims made upon , Persons having no Interest in the subject of such Claims," it shall be lawful for the Court ox a Judge, to whom such application is made, to exercise all the powers md authorities given to them by this Act and the last-mentioned Act, though the titles of the claimants to the money, goods, or chattels in question, or to the proceeds ox

court or Judge value thereof, have not a common origin, but are adverse to and independent of one another.

direct esb of goode 6. When goods or chattels have been seized in execution by a

seized in execution,

Sheriff or other officer, under process of the Court, and some third person claims to bc entitled, under a bill of sale or otherwise, to such goods or chattels, by way of security for a debt, the Court or a Judge may order a sale of the whole or part thereof, upon such terms as to the payment of the whole or part of the secured debt or otherwise as they or hc shall think fit, and may direct the application of the proceeds of such sale in such manner and upon such terms as to such Court or Judge may seem just.

Powrtf to Court or

Judge to decide sum- 7. Upon the hearing of any rule or ordier calling upon persons to

mar* incertain	appear and state the nature and particulars of their claims, it shall
OWE.
be lawful for the Court or Judge, wherever from the smallness of

the

the amount in dispute, or of the value of the goods seized, i t shall appear to them or him desir'dble and right so to do at the request of either party, to dispose of the merits of the respective claims of such parties, and to determine the same in a summary manner upon such terms as they or he shall think fit to impose, and to make such other rules and orders therein as to costs and all other matters as may be just.

8. I n all cases of interpleader proceedings ,where the question is Special case may be

one of law and the facts are not in dispute, the Judge shall be at ,di,putea,	stated where facts
liberty, at his discretion, stlbjcct to appeal. as" hereinbefore mentioned, to decide the question without directing an action or issue, and, if he shall think it desirable, to order that a special case be stated for the opinion of the Court.

9. The proceedings upon such case shall as nearly as may be, be Proceedingson special case in Court below.

the same as upon a special case stutecl under '' 'l'ho Supreme Court

Procedure Amendment Act, 1 853."

10. The judgment in any such action or issue as may be directed ~; ~ ~ ~ J, a n d d e c i s i o n

by the C O or Judgc in any interpleacler proceedings, and the ~

decision of the Court or Judge in a summary manner, unless in case of appeal, shall be final and conclusive against the pasties, and all persons claiming by, from, or under them.

11. All nxles, orders, matters, and decisions to be msde and done RuI~B, orders, &C.,

made in interpleader

in interpleader iroceed-inngr under this Act (excepting only affidavits) may be

may, together with t h e declaration in thc causc, if any, bc entered of entered of recard R Q ~

record, with a note in the margin expressing the true date of such mado cvidonce.

entry, to the end that thc sameWmay 6c evidince in future times if

required, and to secure and enforce thc payment of costs directed by

any such rule or order., and every such rule or order so entered shall

haw thc forcc and cfkct of a judgment in the Supreme Court.

Procedure and Practice.

12. The joinder of too many plaintiffs shall not be fatal, but every Joinder as pIainti&

action may be brought in the name of all the persons in whom the to be hgallg

of all persons suppmed

legal right may be s~lpposed to exist; and jiaclgnient may be given in favor of the plaintiffs by whom thc action is brought, or of one or more of them, or in case of any question of misjoinder being raised, then in favor of such one or more of them as shall be adjudged by the Court to be entitled to recover: Yrovided always, that the de- fendant though unsuccessful shall be entitled to his costs occasioned by his joining any person or persons in whose favor judgment is not given, unless otherwise ordered by the Court or Judge.

13. Upon the trial of such cause, a defendant who has therein Defendant to have benefit of sct-off

pleaded a set-off, may obtain the benefit of his set-off by proving th ou& some plaintire

either that all the parties named as plaintiffs are indebted to him, ~ V O P ~ Y	joined.
notwithstanding that one or more of such plaintiffs was or weye improperly joined, or on proving that the plaintiff or plaintiffs

who

who establish their right to maintain the cause, is or are indebted

to him.

No other action for

aame claim to be 14. No other action shall be brought against the defendant by

brought.

any person so joined as plaintiff in respect of the same cause of

action.

Payment inta Court

in replevin.

15. The plaintiff in replevin may, in answer to an avowry, pay money into Court in satisfaction in like manncr, and subject to the same proceedings as to costs and otherwise, as upon a payment into Court, by a defendant, in other actions.

Effect of such pay-

ment.

16. Such payment into Court in replevin shall not, nor shall the

acceptance thereof by the defendant in satisfaction, work a forfeiture

of the replevin bond.

in itction on money

Pavment into Court 17. In any acticn brought upon a bond which has a condition or

bonds and for detainer,	defeasance to make void the same upon payment of a lesser sum at
a day or place certain, with a penalty, and in any action for detain-
ing the goods of the plaintiff, it shall be lawful for the defendant, by
leave of thc Court or a Judge, and upon such terms as they or he shall think fit, to pay into court a sum of money to answer the claim of the plaintiff in respect of such bond in thc former case, and in the latter case to the value of the goods alleged to be detained; and such payment into Court shall be made and pleaded in like manner, and according to the provisions of "The Supreme Comt Procedure Amendment Act, 1.853 ;'' and the like proceedings may be had and taken thereupon, as to costs and otherwise.
Dower and writ of

right of dower 18. No writ of right of dower or writ of dower, unde nihil habet,

abolished as real	8hdl be brought after the commencement of this Act in any Court
actions, and tobe
commenced by writ	whatsoever; but where any such writ or action would riow lie, an

, of summons.	action may be commenced by writ of summons issuing out of the Court, in t,he same manner and form as the writ of summons in an ordinary action; and upon such writ shall be exdorsed a notice
that the plaintiff intends to declare in dower.

Writ rnd proceed-

ingn thereupon to be	19. The service of the writ, appearance of the defendant, procced- all other proceedings and costs upon such writ shall be subject to the same rules and practice, as nearly as may be, as the proceedings in an ordinary action commenced by writ of summons; and the pro- visions of " The Supreme Court Procedure Amenben t Act, 1853," and of The Supreme Court Procedure Act, 1855-6," shall apply to the writ and pleadings, and proceedings thereupon.
the same a8 in ordi-	ings in default of appearance, ple~dings, judgment, execution, and
nary actions.
J a e may
interfeze in pmoeed-	20. I n proceedings to obtain an attachment of debts under G The Supreme Court Procedure Act, 1855-6," thc Judgc may, in his discle- tion, refuse to interfere where, from the 'smallness of the amount to be recovered, or of the debt sought to be attached, or otherwise, the remedy sought would be worthless or vexatious.

bg8 to atbch debb,

21, Whenever,

21. Whenever, in proceedings to obtain an attachment of debts under the last-mentioned Act, it is suggested by the garnishee that

third person has a lien

Proceedings where

on the debt,

the debt sought to be attached belongs to some third person who has

a lien or chargc upon it, the Judge may order such third person to

appcnr before him and state the nature and particulars of his claim

upon such debt,

Judge may bar claim

22. After hearing the allegations of such third person under such order, and of any other person whom, by the same or any subsequent

of third person, and

make orders.

order the Judge may thinlr fit to call before him, or in case of such third person not appearing before him upon such summons, the Judge may order execution to issue, to levy the amount due from such garnishcc, or thc judgment creditor to proceed against thc garninhoe, according to thc provisions of the last-mentioned Act,

and he may bar the claim of such third person, or make such other

order as he may thinlr fit, upon such terms, in all cases with respect to the lien or chargc (if any), of such third person, and to costs, as he shall think just and reasonable.

23. The provisions of the last-mentioned Act, so far as they are applicable shall apply to any order, and the proceedings thereon

No. 24, to apply to

Proviaione of 1855-6,

orders.

made and taken in. pursuance of the herein next before mentioned

powers under this Act.

Coate of writs of

24. I n all cases in which a writ of mandamus 0;. of injunction is issued under the provisions of the last-mentioned Act, such writ

mandamue and in-

junction, may be h-

shall, unless otherwi:;e ordered by the Court or a Judge, in addition

eluded in writs,

to the matter directed to be inserted therein, command the defeu- dant to pay to the plaintiff the costs of preparing, issuing, and serving such writ; and payment of such costs may be enforced in the same manner as costs payable under a rule of Court are now by law enforceable.

Mode of enforcing

25. Writs of injunction against a corporation may be enforced either by attachment against the Directors or other officers thereof,

writs of injunctio3

agaiubt corporatiwa.

their property and cffccts, to be issucd in such form, and tested, and

as in the case of a mandamus, or by writ of sequestration against

returnable in like manner as writs of execution, and to be proceeded upon and executed in like manner as writs of sequestration issuing out of the Court, in its equitable jurisdiction.

26. The seventy-seventh section of the last-mentioned Act shall be	Enactment in lieu
sec. 77th of 1866-6,

and hereby is repealed; and from and after the passing of this	No. 24.
Act, thc Court or any Judge thereof may, upon summary applica-
tion, by rule or order exercise such and the likc jurisdiction as may be exercised by the Court of Chancery, in England, under the provisions of the ninth part of an Act of the Imperial Parlia-

ment, intituled The Merchant Shipping Act, 1854."

27. I t shall be lawful for the Court and every Judge thereof, and

any Judge sitting at nisiprius, at all times to amend all defects and

h r s in any proceedings under the provisiofis of this Act, 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

Ell1 such amendments may be made with or vithout costs and upon

such terms as to 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 controversy between the parties shall be so made if duly applied for.

aeneralRule~ maybe 28. I t shall be lawful for the Judges or any two of them, of

made by the Judges,	whom the Chief Justice of the said Court shall be one, from time
to time to make all such general rules and orders for thc effectual
execution of this Act and of the intention and object thercof, and for fixing the costs to be allowed for and in respect of the matters herein contai~ed and the performance thereof as in their judgment shall be necessary or proper, and for that purpose to meet from time to time as occasion shall 'equire: Provided that nothing herein contained shall be construed to restrain the authority or limit the jurisdiction of the said Court or of the Judges thereof to make rules or orders, or otherwise to regulate and dispose of the business - therein.
New fOrmaof writs
?nd other proceed-	29* Such new or altered writs and forms of proceedings may be issued, entered, and taken, aa may by the Judges or m y two of them, of whom the Chief Justice shall be one, be deemed necessary or expe- dient for giving effect to the provisions hereinbefore contaified, and in such forms as the Judgcs shall from time to time think fit to order; and such writs and proceedings shall be acted upon and enforced in such and the same manner as writs and proceedings of the said Court arc now acted upon and enforced, or as near thereto as the circunmtances of the case will admit; and any existing writ or proceeding the form of which shall bc in any manner altered in pursuance of this Act, shall nevertheless be of the same force and virtue as if no alteration had been made therein, except as far as
mgs.
the effect thereof may be ~ a r i e d by this Act.

court to have sane	30. The Court shall have and exercise out of term all the powers
powers in and out of

tarn.	and authorities it now has and may exercise in term.
Mmpretekion of	31. In the construction uf tllis Act the word " Court" shall be understood to mean the Supreme Court of South Australia, and the word G Judge" shall be understood to mean a Judge of the said Court; and the word "action" shall be understood to mean any action in the said Court.
terms.
Bhort title.	32. In citing this Act in any instrument, document, or pro- ceeding, it shall be sufficient to use the expression ' T h e Common
Law Procedure Act, 1862."

In the name and on behalf of the Queen I hereby assent to

this Act,

D. DALY, Governor.

K '	-:
~ddaide : Printed by authority, by W, C, Cox, Gover~rnent Printer, Yiotoria~squae.