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No. 9. Ord. No. 9, 1855.
Form of Writ of Summons.
Original Writ in force for Six months
HEREAS by an Act of the Imperial Parliament, made and passed in the fifteenth and sixteenth years of Your Majesty's reign, known as "The Common Law Procedure Act, 1852,” alterations were made in the mode of practice and pleading in the Courts of Common Law at Westminster; and it is expedient that the practice and pleading in the Supreme Court of these islands, should, as far as is practicable, be assimilated thereto; May it, &c. :
What clauses of Common
I. That the said Statute shall be in force within these islands, with the exception of the following clauses, to wit:-The 1, 2, 5, Law Procedure 6, 9, 10, 11, 12, 13, 14, 16, 24, 26, 103, 104, 105, 106, 107, 108,
Act of 1852, declared in force.
109, 110, 111, 112, 113, 114, 115, 120, 121, 122, 124, 125, 223, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236,-and the clauses and schedules of the said Statute so declared to be in force, shall be printed with this Ordinance for general information.
II. That all personal actions brought in the Supreme Court of these islands, where the defendant is residing or is supposed to reside within the jurisdiction of the Court, shall be commenced by writ of summons in the form contained in the Schedule (A.) to the said Common Law Procedure Act, 1852, and marked No. 4. And in every such writ and copy thereof, the place of the residence or supposed residence of the party defendant, or wherein the defendant shall be, or shall be supposed to be, shall be mentioned, and such writ shall be issued and executed as is directed in the second section of Ordinance No. 9 of 1852, with respect to the writ of summons therein mentioned.
only, but may be renewed.
No. 9.-ORDINANCE No. 9 of 1855.
An Ordinance to amend the practice and mode of pleading in the Supreme Court of these Islands, and to extend to the said Islands certain clauses of an Act of the Imperial Parliament, passed in the fifteenth and sixteenth years of Her Majesty's reign, entitled, " An Act to amend the Process, Practice, and Mode of Pleading, in the Superior Courts of Common Law at Westminster, and in the Superior Courts of the Counties Palatine of Lancaster and Durham." (Passed 24th Oct., 1855. Confirmed 8th April, 1856.)
III. That no original writ of summons shall be in force for more than six months, from the day of the date thereof, including the day of such date; but if necessary such writ may be renewed at any time before its expiration, for six months from the date of such renewal, and so on from time to time; and such writ shall be renewed by being again scaled with the seal of the Supreme Court, and signed by the Prothonotary, who shall add to such signature the day of the month and year of such renewal; and such writ 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, and for all other purposes, from the date of the issuing of the original writ of summons. Provided that a precipe in such form as hath heretofore been required to be delivered, in order to obtain an alias writ, shall be filed by the plaintiff or his attorney with the Prothonotary, before the renewal of any writ, in manner before mentioned. Provided also, that any
writ of summons issued and in force at the time of the coming of this Ordinance into operation shall not be determined by this Ordinance, but may be renewed, if necessary, at any time before the period fixed for the expiration thereof, in manner hereinbefore mentioned.
IV. That the production of a writ of summons, renewed in the manner herein before set forth, shall be sufficient evidence of such renewal and of the date of the issue of the original writ of summons. V. That any writ of execution issued after this Ordinance shall have come into operation, if unexecuted, shall not remain in force for more than one year from the date of the teste thereof, and may be renewed at any time before the expiration of the said period: and such renewed writ may in like manner continue in force for a year, and may in like manner be renewed from time to time. And such writs shall be renewed by a notice in writing of such renewal, signed by the party or his attorney, and bearing the seal of the Court and the signature of the Prothonotary, who shall add to such signature the day of the month and year of such renewal; and such notice shall be delivered to the Provost Marshal; and every writ so renewed shall take effect and have priority according to the time of the original delivery thereof.
No. 9. Ord. No. 9, 1855.
Evidence of renewal.
Writs of Execution in force for one year, how renewed.
VI. That the production of the notice renewing a writ of execution shall be sufficient evidence of its having been renewed.
VII. That all rules to be framed by the Judge of the Supreme Court for the regulation of the same, under the provisions of this or of any other Ordinance of these islands, shall be submitted for the confirmation of the Legislative Council of these islands, before they shall become operative and binding on any of the parties concerned.
VIII. And whereas many of the modes of proceeding, services, Costs. and acts for which fees are now allowed by law, have been abolished by this Ordinance without other fees in lieu thereof having been established; Be it ordained, That it shall be lawful for the Judge of the said Court, to allow in taxation of costs, reasonable fees for the performance of services to which fees may not be specifically attached by any Ordinance of these islands.
IX. That the following clauses and parts of clauses of Ordinance No. 9 of 1852, shall be repealed, viz. :-so much of the second clause as relates to the form of writs of summons, and the indorsements thereon: Also so much of the fifth clause as refers to the notice to be indorsed on writs of summons: Also the whole of the sixth clause with reference to the duration and renewal of writs of summons: Also the whole of the seventeenth clause with reference to the mode of entering an appearance.
Rules of Court to be approved of by the Legis
Parts of Ordinance No. 9 of 1852 repealed.
X. That throughout the clauses of the Statute aforesaid, wherc- Explanation of ever the words "Court," or " Courts of Law at Westminster," shall terms. occur, they shall be deemed to apply to the Supreme Court of these islands: wherever the words "Chief Justice," "Judge," "Judges" or the like shall occur, they shall be deemed to apply to the Judge of the said Court: the word "Master" shall also be deemed to apply to the Prothonotary of the same; and the word "Act" shall be held to apply to this Ordinance. That wherever in any Ordinance of these islands, the words "Superior Court" shall occur, the same shall be understood to refer to the Supreme Court of these islands. And whereas, in describing or referring
No. 9. Ord. No. 9, 1855.
to any person or thing, any word importing the singular number or masculine gender, is used, the same shall be held to include several persons or things, and females as well as males, and bodies corporate as well as individuals, unless it be otherwise provided, or there be something in the subject or context repugnant to such construction.
Clauses of Clauses and Schedules of Imperial Statute 15 and 16 Vict., declared Act of Parl. in force by Ordinance No. 9, 1855.
15 & 16 Vic.
c. 76, in force. Writ to state Names of all Defendants, and for only one Action. Attorney on Demand to
rity of Attorney,
Indorsement of service to be made.
III. It shall not be necessary to mention any form or cause of action in any writ of summons, or in any notice of writ of summons, issued under the authority of this Act.
IV. Every writ of summons shall contain the names of all the defendants, and shall not contain the name or names of any defendant or defendants in more actions than one.
VII. Every attorney whose name shall be indorsed on any writ issued by authority of this Act shall, on demand in writing, made by or on behalf of any defendant, declare forthwith whether such writ has been issued by him or with his authority or privity; and if he shall answer in the affirmative, then he shall also, in case the Court or a Judge shall so order and direct, declare in writing, within a time to be allowed by such Court or Judge, the profession, occupation, or quality, and place of abode of the plaintiff, on pain of being guilty of a contempt of the Court from which such writ shall appear to have been issued; and if such attorney 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.
Indorsement of Debt and Costs on Writ and
VIII. Upon the writ and copy of any writ served for the payment of any debt the amount of the debt shall be stated, and the amount of what the plaintiff's attorney claims for the costs of such
Writ for a Debt writ, copy, and service, and attendance to receive debt and costs,
with notice that Proceedings will be stayed on payment within four days.
and it shall be further stated that upon payment thereof within four days to the plaintiff or his attorney, further proceedings will be stayed; which indorsement shall be written or printed in the following form or to the like effect :
"The plaintiff claims £
for debt, and £ for costs, and if the amount thereof be paid to the plaintiff or to his Attorney within four days from the service hereof, further proceedings will be stayed."
But the defendant shall be at liberty, notwithstanding such payment, to have the costs taxed, and if more than one sixth shall be disallowed, the plaintiff's attorney shall pay the costs of taxation.
XV. The person serving the writ of summons shall and he is hereby required, within three days at least after such service, to indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of nonappearance, to proceed under this Act; and every affidavit of service of such writ shall mention the day on which such indorsement was made.
XVII. The service of the writ of summons, wherever it practicable, shall, as heretofore, be personal; but it shall be lawful for the plaintiff to apply from time to time, on affidavit to the Court out of which the writ of summons issued, or to a Judge; and in case it shall appear to such Court or Judge that reasonable efforts have been made to effect personal service, and either that the writ has come to the knowledge of the defendant, or that he wilfully evades service of the same, and has not appeared thereto, it shall be lawful for such Court or Judge to order that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such conditions as to the Court or Judge may seem
No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force.
XVIII. In case any defendant, being a British subject, is residing out of the jurisdiction of the said superior Courts in any place except in Scotland or Ireland, it shall be lawful for the plaintiff to issue a writ of summons in the form contained in the Schedule (A.) to this Act annexed, marked No. 2, which writ shall bear the indorsement contained in the said form, purporting that such writ is for service out of the jurisdiction of the said superior Courts; and the time for appearance by the defendant to such writ shall be regulated by the distance from England of the place where the defendant is residing; and it shall be lawful for the Court or Judge, upon being satisfied by affidavit that there is a cause of action, which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction, and that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant, and that it came to his knowledge, and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the said Courts in order to defeat and delay his creditors, to direct from time to time that the plaintiff shall be at liberty to proceed in the action in such manner and subject to such conditions as to such Court or Judge may seem fit, having regard to the time allowed for the defendant to appear being reasonable, and to the other circumstances of the case: Provided always, that the plaintiff shall and he is hereby required to prove the amount of the debt or damages claimed by him in such action, either before a jury upon a writ of inquiry, or before one of the Masters of the said superior Courts in the manner hereinafter provided, according to the nature of the case, as such Court or Judge may direct; and the making such proof shall be a condition precedent to his obtaining judgment.
XIX. In any action against a person residing out of the jurisdiction of the said Courts, and not being a British subject, the like proceedings may be taken as against a British subject resident out of the jurisdiction, save, that in lieu of the form of writ of summons in the Schedule (A.) to the said Act of Parliament annexed marked No. 2, the Plaintiff shall issue a writ of summons according to the form contained in the said Schedule (A.), marked No. 3, and shall in manner aforesaid serve a notice of such last-mentioned writ upon the defendant therein mentioned, which notice shall be in the form contained in the said Schedule, also marked No. 3; and such service shall be of the same force and effect as the service of the writ of summons in any action against a British subject resident abroad, and by leave of the Court or a Judge, upon their or his being satis
Proceedings where personal service cannot
be effected, but Defendant
knows of the
Writ, and evades service.
out of the jurisdiction of Superior Courts.
As to Actions
against Foreigners residing out of the Jurisdiction
of Superior Courts.
No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76,
in force. Omission to insert or indorse matters in or on Writ not to nullify it. Substitution by mistake or inadvertence of one Form of Writ for another may be by Judge without Costs.
Writs for service within and without Juris
fied by affidavit as aforesaid, the like proceedings may be had and taken thereupon.
XX. If the plaintiff or his attorney shall omit to insert in or indorse on any writ or copy thereof any of the matters required by this Act to be inserted therein or indorsed thereon, such writ or copy thereof shall not on that account be held void, but it may be set aside as irregular, or amended, upon application to be made to the Court out of which the same shall issue, or to a Judge; and such amendment may be made, upon any application to set aside the writ, upon such terms as to the Court or Judge may seem fit.
XXI. If either of the forms of writ of summons contained in the Schedule (A.) to this Act annexed, and marked respectively Nos. 1, 2, and 3, shall by mistake or inadvertence be substituted for any other of them, such mistake or inadvertence shall not be an objection to the writ or any other proceeding in such action, but the writ may, upon an ex parte application to a Judge, whether before or after any application to set aside such writ or any proceeding thereon, and whether the same or notice thereof shall have been served or not, be amended by such Judge without costs.
XXII. A writ for service within the jurisdiction may be issued and marked as a concurrent writ with one for service out of the jurisdiction, and a writ for service out of the jurisdiction may be issued and marked as a concurrent writ with one for service within
and vice versa. the jurisdiction.
Affidavits in certain Cases may be sworn before a Consul.
XXIII. Any affidavit for the purpose of enabling the Court or a Judge to direct proceedings to be taken against a defendant residing out of the jurisdiction of the said Courts may be sworn before any Consul-General, Consul, Vice Consul, or Consular Agent for the time being, appointed by Her Majesty at any Foreign Port or Place; and every affidavit so sworn by virtue of this Act may be used and shall be admitted in evidence, saving all just exceptions, provided it purport to be signed by such Consul-General, Consul, Vice Consul, or Consular Agent, upon proof of the official character and signature of the person appearing to have signed the same: Provided always, that if any person shall forge the signature of any such affidavit, or shall use or tender in evidence any such affidavit with a false or counterfeit signature thereto, knowing the same to be false or counterfeit, he shall be guilty of felony, and shall upon conviction be liable to transportation for seven years, or to imprisonment for any term not exceeding three years, nor less than one year, with hard labour; and every person who shall be charged with committing any felony under this Act may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charged to have been committed, in the county or place in which he shall be apprehended or be in custody; and every accessory before or after the fact to any such offence may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charged to have been committed in any county or place in which the principal offender may be tried: Provided also, that if any person shall wilfully and corruptly make a false affidavit before such Consul-General, Consul, Vice Consul, or Consular agent, every person so offending shall be deemed and taken to be guilty of perjury, in like manner as if such false affidavit had been made in England before competent authority, and shall and may be dealt with, indicted, tried, and, if convicted,