Sect. 1.
Action
Admiralty cause.
An Admiralty cause or suit is not an " action " within the meaning of the provision of the County Courts Act, 1888 (l), which gives to either party in an action, where the amount claimed exceeds £5, a right to require a jury (m) ; nor is an Admiralty cause or suit in rem an " action " against the owners of the vessel within the meaning of a statute requiring notice of action (n).
Counterclaim.
A counterclaim is for most purposes of procedure, except execution, treated as if it were a cross-action to be tried together with the original action (o), but it is not an "action" within the meaning of the Judicature Act(p), or within the meaning of the provision of the County Courts Act, 1888, which deals with the remission of actions of tort to a county court (q). For the purposes of the Bills of Exchange Act, 1882 (r), and of the Sale of Goods Act, 1893 (s), a counterclaim is specifically included in the word " action."
Set-off.
A "set-off" is treated as an "action" for the purposes of the Limitation Act, 1623 (t), but not for those of the Solicitors Act, 1843 (u).
Interpleader issue.
An interpleader issue ordered in an action is technically a " proceeding " in that action and not itself an action " (a). It is, however, sufficiently distinct from the original action to be regarded for many purposes (e.g., a solicitor's retainer) as a separate litigation (b).
Proceeding by originating summons.
A proceeding commenced by originating summons falls within the definition of an "action " in the Judicature Act, 1873 (c); but, as it is not an action in which a defence is put in, the rules as to third party procedure do not apply to it (d). Further, it is not an " action " within the meaning of the provision of the Conveyancing and Law of Property Act, 1881 (e), which enables a lessee under
- (l) 51 & 52 Vict. c. 43, s. 101.
- (m) The Tynwald, [1895] P. 142; The Theodora, [1897] P. 279. See also The Longford (1888), 14 P. D. 34.
- (n) The Longford, supra, decided under 6 & 7 Will. 4, cap. c, s, 8, a local or personal Act and see The Burns, [1907] P. 137.
- (o) Sykes v. Sacerdoti (1885), 15 Q. B. D. 423 (security for costs of counterclaim); Re Milan Tramways Co., Ex parte Theys (1882), 22 Ch. D. 122, 126, affirmed (1884), 25 Ch D. 587; Beddall v. Maitland (1881) 17 Ch. D. 174; Stumore v. Campbell & Co., [1892] 1 Q. B. 314; Levi v. Anglo-Continental Gold Reefs etc., [1902] 2 K. B. 481 (third party procedure). A counterclaim is not a part of the plaintiff's action, and is not affected by his discontinuing such action (McGowan v. Middleton (1883), 11 Q. B. D. 464).
- (p) And the counterclaiming defendant is not a "plaintiff" entitled as of right to require issues of fact to be tried by a jury under R. S. C, Ord. 36, r. 2 (Kinnaird (Lord) v. Field, [1905] 2 Ch. 361).
- (q) 51 & 52 Vict. c. 43, s. 66; Delobbel-Flipo v. Varty, [1893] 1 Q. B. 663. See also R. v. Judge of City of London Court, [1891] 2 Q. B. 71, decided under s. 65 of the same statute.
- (r) 45 & 46 Vict. c. 61, s. 2.
- (s) 56 & 57 Vict. c. 71, s. 62.
- (t) 21 Jac. 1, c. 16; Remington v. Stevens (1747), 2 Str. 1271; Rawley v. Rawley (1876), 1 Q. B. D. 460.
- (u) 6 & 7 Vict. c. 73, s. 37; see Brown v. Tibbits (1862), 11 C. B. (N. S.) 855.
- (a) Hamlyn v. Betteley (1880), 6 Q. B. D. 63; Collis v. Lewis (1887), 20 Q. B. D. 202 (as to appeal from a county court on an interpleader issue).
- (b) James v. Ricknell (1887), 20 Q. B. D. 164.
- (c) Re Fawsitt (1885), 30 Ch. D. 231; Re Vardon (1885), 55 L. J. (CH.) 259 ; Gee v. Bell (1887), 35 Ch. D. 160; Re Robinson (1885), 31 Ch. D. 247.
- (d) Re Wilson (1890), 45 Ch. D. 266.
- (e) 44 & 45 Vict. c. 41, s. 14 (2).
