Seal.

Copy to be left.

Copy to be filed and entered in the cause book.

R.S.C.

same description as hereby directed in the case of proceedings directed to be printed.

Where a solicitor has commenced an action in the name of a plaintiff without authority, the proper course is, for the plaintiff to serve notice of motion on the defendant, as well as on the solicitor, that the action may be dismissed, and that the solicitor may pay the costs of the plaintiff, as between solicitor and client, and the costs of the defendant as between party and party. (Newbigginby-the-Sea Gas Company v. Armstrong, 13 Ch. D. 310; Nurse v. Durnford, 13 Ch. D. 764.)

6. Every writ of summons shall be sealed by the proper officer, and shall thereupon be deemed to be issued.

7. The plaintiff or his solicitor shall, on presenting any writ of summons for sealing, leave with the officer a copy, written or printed, or partly written and partly printed, on paper of the description aforesaid, of such writ, and all the indorsements thereon, and such copy shall be signed by or for the solicitor leaving the same, or by the plaintiff himself if he sues in person.

8. The officer receiving such copy shall file the same, and an entry of the filing thereof shall be made in a book to be called the Cause Book, which is to be kept in the manner in which cause books have heretofore been kept by the clerks of records and writs in the Court of Chancery, and the action shall be distinguished by the date of the year, a letter, and a number, in the manner in which causes are now distinguished in such last-mentioned cause books.

"And when such action shall be commenced in a June, 1876. district registry, it shall be further distinguished by the name of such registry."

Notice of assignment of actions,

9. Notice to the proper officer of the assignment of an action to any Division of the Court under section how given. eleven of "The Supreme Court of Judicature Act, 1875," or under Rule 4 of this order, shall be sufficiently given by leaving with him the copy of the writ of summons.

Probate actions.

4. In particular Actions.

10. The issue of a writ of summons in Probate actions shall be preceded by the filing of an affidavit made by the plaintiff or one of the plaintiffs in verification of the indorsement on the writ.

actions.

11a. The first paragraph of Rule 11 of Order V. Admiralty of "The Rules of the Supreme Court" is hereby R.S.C. Feb. annulled, and the following shall stand in lieu thereof: 1876.

"In Admiralty actions in rem a warrant for the arrest of property according to the Form A in the Appendix to these Rules may be issued at the instance either of the plaintiff or of the defendant at any time after the writ of summons has issued, but no warrant of arrest shall be issued until an affidavit by the party or his agent has been filed, and the following provisions complied with."

affidavit.

(a.) The affidavit shall state the name and descrip- Contents of tion of the party on whose behalf the action is instituted, the nature of the claim, the name and nature of the property to be arrested, and that the claim has not been satisfied.

wages.

(b.) In an action of wages the affidavit shall state Action for the national character of the vessel proceeded against; and if against a foreign vessel, that notice of the institution of the action has been given to the Consul of the State to which the vessel belongs, if there be one resident in London [a copy of the notice shall be annexed to the affidavit].

bottomry.

(c.) In an action of bottomry, the bottomry bond, For and if in a foreign language also a notarial translation thereof, shall be produced for the inspection and perusal of the Registrar, and a copy of the bond, or of the translation thereof, certified to be correct, shall be annexed to the affidavit.

of salvage.

(d.) In an action of distribution of salvage the Distribution affidavit shall state the amount of salvage money awarded or agreed to be accepted, and the name, address, and description of the party holding the same. (e.) The Court or Judge may in any case, if he Incomplete think fit, allow the writ of summons to issue although when the affidavit may not contain all the required particu- allowed. lars. In a wages cause he may also waive the service of the notice, and in a cause of bottomry the production of the bond.

The Admiralty Division will enforce the judgment of a foreign tribunal of commerce. (The City of Mecca, 5 P. D. 28.)

The immunity from arrest of a foreign ship of war, does not extend to a packet conveying mails and cargo, although she may belong to a foreign sovereign. (The Parlement Belge, 4 P. D. 129.) Since the Judicature Acts, the time from which steps in an ordinary default cause in rem in the Admiralty Div. may be taken, is the service of the writ and not of the warrant of arrest. (The Maria, 39 L. T. 549).

affidavit,

R.S.C. Dec. 1875.

12a. Order V., Rule 12, of "The Rules of the Supreme Court," is hereby annulled.

When issued.

Service

without the

ORDER VI.

CONCURRENT WRITS.

1. The plaintiff in any action may, at the time of or at any time during twelve months after the issuing of the original writ of summons, issue one or more concurrent writ or writs, each concurrent writ to bear teste of the same day as the original writ, and to be marked with a seal bearing the word “ concurrent," and the date of issuing the concurrent writ; and such seal shall be impressed upon the writ by the proper officer: Provided always, that such concurrent writ or writs shall only be in force for the period during which the original writ in such action shall be in force.

Under this rule, the Court has no power to direct a concurrent writ to be issued, after the expiration of twelve months. (Cole v. Sherard, 11 Ex. 482.)

A writ cannot be issued, concurrent with one which does not exist; hence where a writ had been renewed and then lost, the Court declared they had no power to order a concurrent writ to be issued. (Davies v. Garland, 1 Q. B. D. 250, and 33 L. T. 727, more fully reported.)

For renewal of writs, see Order VIII., post.

2. A writ for service within the jurisdiction may within and be issued and marked as a concurrent writ with one jurisdiction. for service, or whereof notice in lieu of service is to be given, out of the jurisdiction; and a writ for service, or whereof notice in lieu of service is to be given, out of the jurisdiction may be issued and marked as a concurrent writ with one for service within the jurisdiction.

Of authority to issue writ.

ORDER VII.

DISCLOSURE BY SOLICITORS AND PLAINTIFFS.

1. Every solicitor whose name shall be indorsed on any writ of summons shall, on demand in writing made by or on behalf of any defendant who has been served therewith or has appeared thereto, declare forthwith whether such writ has been issued by him or with his authority or privity; and if such solicitor shall declare that the writ was not issued by him or

with his authority or privity, all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the Court or a Judge.

2. When a writ is sued out by partners in the Action by name of their firm, the plaintiffs or their solicitors shall, partners. on demand in writing by or on behalf of any defendant, declare forthwith the names and places of residence of all the persons constituting the firm. And if the plaintiffs or their solicitor shall fail to comply with such demand, all proceedings in the action may, upon an application for that purpose, be stayed upon such terms as the Court or a Judge may direct. And when the names of the partners are so declared, the action shall proceed in the same manner and the same consequences in all respects shall follow as if they had been named as the plaintiffs in the writ. But all proceedings shall, nevertheless, continue in the name of the firm.

ORDER VIII.

RENEWAL OF WRIT.

writ twelve months.

1. No original writ of summons shall be in force Duration of for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to a Judge, or the District Registrar, for leave to renew the writ; and the Judge or Registrar, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the Renewal for six months. date of such renewal, and so from time to time during the currency of the renewed writ. And the writ shall in such case be renewed by being marked with a seal bearing the date of the day, month, and year of such renewal; such seal to be provided and kept for that purpose at the proper office, and to be impressed upon the writ by the proper officer, upon delivery to him by the plaintiff or his solicitor of a memorandum in Form No. 5 in Appendix (A), Part I.; and a writ of summons so renewed shall remain in force and be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited,

Evidence of renewal.

and for all other purposes, from the date of the issuing of the original writ of summons.

It is only the original or concurrent writ that can be renewed. (Davies v. Garland, 1 Q. B. D. 250.)

A writ may be renewed after the expiration of the twelve months, unless the period allowed by the Statute of Limitations has intervened. (Re Jones, Eyre v. Cocks, 46 L. J. Ch. 316; Doyle v. Kaufmann, 3 Q. B. D. 7.) The principle on which the Court of Queen's Bench seem to have acted in this latter case, was, that where a litigant had perfected his title under the Statute, the Court had no power to deprive him of it; and on this point compare the observations of Jessel, M. R., in McAndrew v. Barker, 7 Ch. D. 705, on a somewhat similar principle. It is difficult to see why this principle should not have been applied in Canadian Oil Works Corp. v. Hay, 38 L. T. 549, where, unless the time for the delivery of the statement of claim were extended, the same result would have followed; but possibly Malins, V.-C., was influenced by the special circumstances of that case.

2. The production of a writ of summons purporting to be marked with the seal of the Court, showing the same to have been renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, and of the commencement of the action as of the first date of such renewed writ for all purposes.

Agreement to accept

Personal.

Substituted.

ORDER IX.

SERVICE OF WRIT OF SUMMONS.
1. Mode of Service.

1. No service of writ shall be required when the defendant, by his solicitor, agrees to accept service, and enters an appearance.

A solicitor not entering an appearance in pursuance of a written undertaking, is liable to attachment under Order XII. 14.

2. When service is required the writ shall, wherever it is practicable, be served in the manner in which personal service is now made, but if it be made to appear to the Court or to a Judge that the plaintiff is from any cause unable to effect prompt personal service, the Court or Judge may make such order for substituted or other service, or for the substitution of notice for service, as may seem just.

The method of effecting personal service is to tender a copy of the writ to the defendant, and produce the original if required. The method of substituted service depends upon the exigencies of the case and the discretion of the Judge. In Capes v. Brewer, 24 W. R. 40, the writ was left at the place of business of the