PART II.

THE PRACTICE OF THE COURT.

RULES OF COURT.

[Note.- Where no other provision is made by the Act or these Rules, the present procedure and practice remain in force.]*

ORDER I.

FORM AND COMMENCEMENT OF ACTION.

1. All suits which have hitherto been commenced by a cause in rem or in personam in the High Court of Admiralty, shall be instituted in the High Court of Justice by a proceeding to be called an action.1

rem and in

In an action in rem the property in relation to which Actions in the claim has arisen, or the proceeds thereof when in Court personam. are proceeded against, and are available to satisfy the claim if established. In an action in personam a certain per

1 The following is the practice as to claims in respect of substitutes for seamen who have volunteered into the royal navy, under M. S. A. 1854, SS. 214-220:

By A. C. R. 1859

R. 131. A solicitor desiring to obtain repayment under the provisions of the Merchant Shipping Act, 1854, of the excess of wages paid to a substitute hired in the place of a seaman volunteering into the royal navy, shall file a claim, form of which may be obtained in the registry.

R. 132. If the claim be correct, he shall, on providing the proper stamp, receive a certificate for payment of the sum due.

R. 133. If the claim be incorrect, he shall, on providing the proper stamp, receive the registrar's opinion in writing.

R. 134. If the solicitor be dissatisfied with the opinion of the registrar, he may apply to the judge on motion to review the same, as prescribed by the Merchant Shipping Act, 1854.

*The Admiralty Rules of 1859, which are still in force, are inserted among the following rules, and particularised by the letters "A. C. R., 1859;" they will also be found set out in App. III. Only those of the new rules which touch upon Admiralty actions are inserted in the following pages.

Indorse

son, as in an ordinary action, is proceeded against, and there is no special object or fund to satisfy the claim. The action in rem is peculiar to the Admiralty Division of the High Court of Justice, for, though the jurisdiction formerly vested in the Court of Admiralty has been transferred to the High Court of Justice (J. A. 1873, s. 16), yet all causes and matters over which the Court of Admiralty would formerly have had exclusive cognisance have been transferred to the Admiralty Division (J. A. 1873, s. 34, sub-s. 2 (e); Humphreys v. Edwards, 45 L. J. Ch. 112). The action when it is once commenced either in rem or in personam must continue in the form in which it is begun, and cannot be changed (The Hope, 1 W. Rob. 154). If there is a lis alibi pendens in respect of a cause of action begun in this country, the Court will order proceedings here to be stayed if the lis alibi pendens is continued (The Catterina Chiazzare, L. R. 1 Ad. D. 368; 44 L. J. Ad. 105), and that even if the suit abroad is in personam and that here is in rem (The Lanarkshire, 2 Spks. 189).

3. All other proceedings in and applications to the High Court may, subject to these rules, be taken and made in the same manner as they would have been taken and made in any Court in which any proceeding or application of the like kind could have been taken or made if the Act had not been passed.

3a. Forms 2 and 3 in Part I. of Appendix (A) to the rules of the Supreme Court (see App. IV.) shall be read as if the words by leave of the Court or judge were not therein.

By this rule the proceedings by petition under protest to the jurisdiction and by petition in objection to the report of the registrar are preserved.

ORDER II.

WRIT OF SUMMONS, AND PROCEDURE.

1. Every action in the High Court shall be commenced by a writ ments on of summons, which shall be indorsed with a statement of the nature

of the claim made, or of the relief or remedy required in the action, and which shall specify the division of the High Court to which it is intended that the action should be assigned.

2. Any costs occasioned by the use of any more prolix or other forms of writs and of indorsements thereon, than the forms hereinafter prescribed, shall be borne by the party using the same, unless the Court shall otherwise direct.

In an action in rem, if the statement on the writ differs from that in the affidavit to obtain the arrest of the ship, the Court will allow the writ to be amended on application, and the plaintiffs will pay the costs of the application (The Princess Royal, L. R. 3 Ad. 27; 39 L. J. Ad. 29). If the amount claimed on the writ proves during the subsequent proceedings to be too small, the Court will enlarge the amount,—if a too small sum was set down through a bona fide mistake, on the application of the plaintiffs, who will pay the costs of such application, but it is doubtful if the bail will also be increased; and see post, O. xxvii., r. 11 (The Johannes, L. R. 3 Ad. 127; 39 L. J. Ad. 41). The amount indorsed on the writ should be such as may reasonably be expected to cover the amount of the claim and the costs of the proceedings (The Earl Grey, 1 Spks. 180). But, if the costs are not covered by the amount indorsed on the writ, the Court will order execution, or a warrant of arrest against property to issue to satisfy the balance if good reason can be shown for this somewhat unusual course (The Temiscouta, 2 Spks. 208; The Freedom, L. R. 3 Ad. 495; 25 L. T. N. S. 392; and see post, note to O. iii., r. 11).

writs of

summons.

3. The writ of summons for the commencement of an action shall, Form of except in the cases in which any different form is hereinafter writ. provided, be in Form No. 1, in Part I. of Appendix (A) hereto, with such variations as circumstances may require.

See App. IV.

This rule is only applicable to the case of an action in personam. As to actions in rem, post, r. 7. Actions in

Service of

respect of damage by Queen's ships are usually brought against the commander in personam (The Athol, 1 W. Rob. 374).

4. No writ of summons for service out of the jurisdiction, or of writ out of which notice is to be given out of the jurisdiction, shall be issued jurisdic

tion.

Writ of summons

in rem.

Date of writs.

without the leave of a Court or judge.

5. A writ of summons to be served out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be in Form No. 2, in Part I. of Appendix (A) hereto, with such variations as circumstances may require. Such notice shall be in Form No. 3 in the same part, with such variations as circumstances may require. See App. IV.

A writ of summons will not be allowed to be served out of the jurisdiction unless the cause of action has arisen within the territorial jurisdiction of the High Court (In re The City of Mecca, 45 L. J. Ad. 92; L. R. 1 P. D. 300; sub. nom. In re Smith; The Vivar, L. R. 2 P. D. 29; 35 L. T. N. S. 782). The limit has been considered to be low-water mark (Harris v. The Owners of The Franconia, L. R. 2 C. P. D. 173; 46 L. J. N. S. C. P. 363; R. v. Keyn, L. R. 2 Ex. D. 63; 45 L. J. C. P. 586). As to the manner of obtaining such a writ or notice, see post, O. xi., r. la.

7. The writ of summons in every Admiralty action in rem shall be in Form No. 4, of Part I. of Appendix (A) hereto, with such variations as circumstances may require.

7a. Form A. in the Appendix to these Rules shall be substituted for the form referred to in Order II., Rule 7, of "The Rules of the Supreme Court."

See post, App. IV.

8. Every writ of summons, and also every other writ, shall bear date on the day on which the same shall be issued, and shall be tested in the name of the Lord Chancellor, or, if the office of Lord Chancellor shall be vacant, in the name of the Lord Chief Justice of England.

ORDER III.

INDORSEMENT OF CLAIM.1

1. The indorsement of claim shall be made on every writ of Indorse. summons before it is issued.

2. In the indorsement required by Order II., Rule 1, it shall not be essential to set forth the precise ground of complaint, or the precise remedy or relief to which the plaintiff considers himself entitled. The plaintiff may by leave of the Court or judge amend such indorsement so as to extend it to any other cause of action or any additional remedy or relief.

3. The indorsement of claim may be to the effect of such of the Forms in Part II. of Appendix (A) hereto as shall be applicable to the case, or, if none be found applicable, then such other similarly concise form as the nature of the case may require.

For these additional forms, see post. Appendix IV.

ment of claim.

4. If the plaintiff sues, or the defendant or any of the defendants Indorseis sued, in a representative capacity, the indorsement shall show, in ment of capacity manner appearing by the statement in Appendix (A) hereto, Part II., section 8, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued.

See App. IV.

ment of

debt.

7. Wherever the plaintiff's claim is for a debt or liquidated de- Indorsemand only, the indorsement, besides stating the nature of the claim, shall state the amount claimed for debt, or in respect of such demand, and for costs respectively, and shall further state, that, upon payment thereof within four days after service, or, in case of a writ not for

1 The special indorsements under r. 6 of this Order, and the consequences thereof being only applicable to a cause in personam for a debt or liquidated demand arising in a contract express or implied-as in a wages suit against the owner of a vessel-and being so unusual in the Admiralty Division, since such actions would, as a rule, be brought in one of the other divisions, it has been thought unnecessary to take up space by inserting O. iii., r. 6, O. xiii., r. 3, O. xiv., rr. la, 2, 3, 4, 5 and 6, or the cases which have been decided thereon, as they are scarcely connected with the practice of the Admiralty Division.

L