Sect. 1.
Action.
and comprehending, in legal phraseology, every suit, "whether by a subject, or in the name of the Sovereign, or by an information by the Attorney-General on behalf of the Crown." It is, however, generally used in a more restricted or "popular" sense as denoting a civil action brought by a subject and commenced by writ or plaint (d).
Statutory definitions.
2. At the present date there are several statutory definitions (e), which for certain purposes give to the word " action " meanings different from those indicated above. Thus for the purposes of the Judicature Act, 1873, and the Rules of the Supreme Court, it means a civil proceeding commenced by writ, or in such other manner as may be prescribed by rules of Court, and does not include a criminal proceeding by the Crown (f). For the same purposes the word suit "is to include "action," the old technical distinction (g) between actions at law and suits in equity being thus rendered obsolete, and both " action " and " suit " are to be included in the still wider term "cause" (h). For the purposes of the County Courts Act, 1888 (i), the term "action" is to include every proceeding in the Court which may be commenced as prescribed by plaint, the term "matter" being appropriated to proceedings commenced in any other way.
Judicial interpretations.
Upon the word " action " as defined above and as used in other statutes there have been a number of judicial decisions.
Rules of Court.
The term " action" as used in the Rules of the Supreme Court includes a proceeding by the Attorney-General formerly known as an "information" (j).
Matrimonial cause or suit.
A matrimonial cause or suit, commenced by petition, is not generally known as an " action," and an order for payment of costs, forming part of a decree therein, is not a "final judgment" in respect of which a bankruptcy notice can be served (k).
- (d) See note (c), p. 2.
- (e) In addition to those referred to in the text, reference may be made to the Common Law Procedure Acts, 1852 (15 & 16 Vict. c. 76), 1854 (17 & 18 Vict. c. 125), and 1860 (23 & 24 Vict. c. 126), the Inferior Courts Judgments Extension Act, 1882 (45 & 46 Vict. c. 31), the British Law Ascertainment Act, 1859 (22 & 23 Vict. c. 63), and the Foreign Law Ascertainment Act, 1861 (24 & 25 Vict. c. 11). The latter Acts contain an extremely wide definition, viz., "every judicial proceeding instituted in any Court, civil, criminal, or ecclesiastical." See also the Railway Companies Act, 1867 (30 & 31 Vict. c. 127), s. 3, "Action includes suit or other proceeding."
- (f) Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 100. See R. S. C., Ord. 71, r. 1.
- (g) See, e.g., Sutton v. Sutton (1882), 22 Ch. D. 511. In one old case, even before the Judicature Act, a statutory provision as to the Court's power to give special relief in " actions " of a certain character was held applicable to " suits " (Pennell v. Smith (1855), 5 De G. M. & G. 167, 187).
- (h) As to the origin of the word " cause," see Green v. Lord Penzance (1881), 6 App. Cas. 657. The Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 100, defines it as including any action, suit, "or other original proceeding" between a plaintiff and a defendant, and any criminal proceeding by the Crown. A "suit," therefore (Re Wallis's Trusts, Ex parte Wallis (1888), L. R. 23 Ir. 7), is " an original proceeding between a plaintiff and defendant," and the term is a wider one than "action."
- (i) 51 & 52 Vict. c. 43, s. 186.
- (j) A.-G. v. Shrewsbury Bridge Co. (1880), 42 L. T. 79.
- (k) Re Binstead, Ex parte Dale, [1893] 1 Q. B. 199.
B 2
