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Part VII.

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Forms of Action.

47

Sect. 2, But it is to pay the defendant's costs (q). a whether Abolition of the question considering in importance, of often still Old Forms plaintiff has a cause of action under particular circumstances and Action, in determining the period of limitation (r) prescribed for the particular ground of complaint in question, to inquire what would have been the form of action under the old practice.

and consequently had

Sect.

A

77.

menced

Modern

3.

Actions.

modern action, in the popular sense of that word, is com- Modern by a writ of summons, which states simply the general actions,

Neither in the indorsement nature of the plaintiff's complaint. upon such writ, nor in the subsequent pleadings, is it necessary to state in any particular or stereotyped form the facts upon which he relies. Pleadings are no longer technical in the sense that they must show the precise legal form which the plaintiff's demand must take they now show the facts, and then it is for the Court from the facts to decide upon the legal result of those facts (s). Even at the present date, however, there are certain distinctions between classes of actions which cannot be altogether disregarded.

Sub-Sect.

Actions in rem and in personam,

1.

An action or suit in rem is an action brought in the AdmiDivision of the High Court, or in some inferior Court having Admiralty jurisdiction {t), in which the plaintiff seeks to make good e.g., a ship or cargo in a claim to or against certain property respect of which, or in respect of damage done by which, he alleges Thus in collision actions and that he has an actionable demand. other cases where a plaintiff' claims a maritime lien {a) he can, if the res be within the Court's jurisdiction, by process served upon its corpus, procure its arrest and detention by the Court until either 78.

rait}

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the law has been altered by the It lias been suggested that [q) Judicature Acts, and by the abolition of the plea in abatement. I am unable to agree to this suggestion. I cannot think that the Judicature Acts have changed what was formerly a joint right of action into a right of bringing several and separate actions " {per Earl Cairns, L.C., Kendall v. Hamilton (1879), 4 App. Cas., at p. 516. See also Gihhs v. Guild (1882), 9 Q. B. D. 59, 67; Britain v. Rossiter B. D. 123, 129; Macdonald v. Tacquah Gold Mines Co. (1884), 13 (1879), 11 Q. B. D. 535, 539). (r) "It was said that inasmuch as the names of actions are altered, and there is no longer an action on the case, or an action of trespass, the Statute of Limitations did no longer apply but I am of opinion that the Judicature Act, 1873, did not alter or touch the Statute of Limitations at all, and that the statute still applies to the circumstances which constituted the actions named in it, that is to say that if the circumstances would have constituted an action on the case, or an action of trespass, although the action which involves the remedy sought would not now be called an action on the case or an action of trespass, yet notwithstanding the Statute of Limitations applies to it, if the facts are such as would have supported an action on the case or an action of trespass " {Gihhs V. Guild (1882), 9 Q. B. B. at p. 67, per Brett, L. J.). See generally the title '

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Limitation or Actions, (s) it)

post.

Hanmer {Lord) v. Flight (1876), 35 L. T. 127. Or in time of war in a prize Court. See title Prize Law and Jurisdiction.

{a) E.g.,

for salvage, wages, towage or pilotage, or in respect of a bottomry may also be a statutory right to proceed in rein, e.g., for necessaries or repairs, though no maritime lien is conferred. See title Admiralty.

bond.

There

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