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In English law the term "action" at a very early date became associated with Civil proceedings in the court of common pleas, which were distinguished from pleas of the Crown, such as indictments or informations and for suits in the court of chancery or in the admiralty or ecclesiastical courts. The English action was a proceeding commenced by writ original at the common law. The remedy was of right and not of grace. As a result of the reform of civil procedure by the Judicature Acts the term "action" in English law now means at the High Court of Justice "a civil proceeding commenced by writ of summons or in such other manner as may be prescribed by rules of court" (e.g., by originating summons). The proceeding thus commenced ends by judgment and execution. The stages in an English action are the writ, by which the persons against whom relief is claimed are summoned before the court ; the pleadings and interlocutory steps, by which the issues between the parties are adjusted; the trial, at which the issues of fact and law involved are brought before the tribunal ; the judgment, by which the relief sought is granted or refused; and execution, by which the law gives to the successful party the fruits of the judgment.
The procedure varies according as the action is in the High Court, a county court, or one of the other local courts of record which still survive ; but there is no substantial difference in the incidents of trial, judgment and execution in any of these courts.
An action is said to "lie" when the law provides a remedy for some particular act or omission by a subject which infringes the legal rights of another subject. An act of such a character is said to give a "cause of action." When the rights of a subject are in fringed by the illegal action of the State, an action lies in England against the officers who have done the wrong, unless the claim be one arising out of breach of a contract with the State, or out of an "Act of State." For a breach by the State of a contract made between the State and a subject the remedy of the subject is, as a general rule, not by action against the agents of the State who acted for the State with reference to the making or breach of the contract, but against the Crown itself by the proceeding called Petition of Right.
This is the universal means of commencing an action in the High Court. It is addressed to the defendant, and may be either generally or specially indorsed with a statement of the nature of the claim made. The latter form of indorsement is allowed in certain cases of debt or liquidated de mand, and gives the plaintiff the great advantage of entitling him to sign judgment in default of appearance by the defendant, and even in spite of appearance unless the defendant can satisfy a judge that he ought to be allowed to defend. No statement of claim is necessary in case of a specially indorsed writ, the indorse ment being deemed to be the statement. The writ may be issued out of the central office or out of a district registry, and the plaintiff may name on his writ the division of the High Court in which he proposes to have the case tried. There are special rules
governing the issue of writs in probate and admiralty actions. The writ remains in force for 12 months, but may be renewed for good cause after the expiration of that time. Application for renewal should, however, be made before the expiration of 12 months from the date of the writ. Service must be personal, unless where substituted service is allowed, and in special cases, such as actions to recover land and admiralty actions. Service out of the jurisdiction of a writ or notice of a writ is allowed only by leave of a judge. Notice of the issue of a writ, and not the writ itself is served on a defendant who is neither a British subject nor in British dominions. The law is contained in the Rules of the Supreme Court, especially Orders ii.--xi. and xiv.
Every writ has upon it a memorandum point ing out to the defendant that he must, in due course, enter an appearance, otherwise judgment may be signed against him in default. Appearance is entered by the defendant delivering to the proper officer a memorandum stating the name of his solicitor or that he will defend in person (0. 12, r. 8). He must give notice of appearance to the plaintiff or his solicitor. He must give his address for service which, if he has entered appearance in Lon don, must be within 3 m. of the Royal Courts of Justice, and if in a district Registry, the address must be within the district. In the vast majority of cakes the defendant leaves it to his solicitor to enter appearance for him. He may enter a conditional appearance if he disputes the jurisdiction of the court, or desires to allege some informality or irregularity in the service of the writ (0. 12, r. 30).
If the defendant does not enter an appearance and the writ has been specially indorsed (i.e., for a liquidated demand) the plaintiff may sign judgment in default for his debt and costs (0. 13, r. 3). But this rule does not apply where the defendant is an infant or a lunatic—the court, in the exercise of its parental jurisdiction, prohibiting such litigants from compromising without leave. Where, however, a defendant does not appear to a writ in which the plaintiff claims damages or other relief which cannot be claimed in a specially indorsed writ, the plaintiff can only sign on what is called interlocutory judgment, which leaves the quan tum of the damages to be assessed in such manner as the court may think right (0. 13, r. 5). But judgment for the possession of land may be obtained owing to default in appearance. These rules as to default, however, are subject to this—that any judg ment by default may be set aside on such terms as to costs or otherwise as to the court shall seem just (0. 13, r. 1o). As a general rule, however, if the judgment has been regularly signed, it will only be set aside on very stringent terms, and the def end ant must show that he has a meritorious defence.