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sentenced, and his offence may be laid and charged to have been committed, in any county or place in which he shall be apprehended or be in custody, as if his offence had been actually committed in that county or place.

XXV. In all cases where the defendant resides within the jurisdiction of the Court, and the claim is for a debt or liquidated demand in money, with or without interest, arising upon a contract, express or implied, as, for instance, on a bill of exchange, promissory note, or cheque, or other simple contract debt, or on a bond or contract under seal for payment of a liquidated amount of money, or on a statute where the sum sought to be recovered is a fixed sum of money, or in the nature of a debt, or on a guarantee, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, cheque, or note, the plaintiff shall be at liberty to make upon the writ of summons and copy thereof a special indorsement of the particulars of his claim, in the form contained in the Schedule (A.) to this Act annexed, marked No. 4, or to the like effect; and when a writ of summons has been indorsed in the special form herein before mentioned, the indorsement shall be considered as particulars of demand, and no further or other particulars of demand need be delivered, unless ordered by the Court or a Judge.

XXVII. In case of nonappearance by the defendant, where the writ of summons is indorsed in the special form hereinbefore provided, it shall and may be lawful for the plaintiff, on filing an affidavit of personal service of the writ of summons, or a Judge's order for leave to proceed under the provisions of this Act, and a copy of the writ of summons, at once to sign final judgment in the form contained in the Schedule (A.) to this Act annexed, marked No. 5 (on which judgment no proceeding in error shall lie), for any sum not exceeding the sum indorsed on the writ, together with interest at the rate specified, if any, to the date of the judgment, and a sum for costs (to be fixed by the Masters of the said Superior Courts, or any three of them, subject to the approval of the Judges thereof, or any eight of them, of whom the Lord Chief Justices and the Lord Chief Baron shall be three), unless the plaintiff claim more than such fixed sum, in which case the costs shall be taxed in the ordinary way; and the plaintiff may upon such judgment issue execution at the expiration of eight days from the last day for appearance, and not before: Provided always, that it shall be lawful for the Court or a Judge, either before or after final judgment, to let in the defendant to defend upon an application, supported by satisfactory affidavits accounting for the nonappearance, and disclosing a defence upon the merits.

No. 9.

Clauses of
Act of Parl.

15 & 16 Vic.
c. 76,
in force.

ment of the

Special Indorseparticulars of Debts or liqui

dated Demands

may be made on

the Writ.

Special Indorsement to stand for particulars of

demand.

Final Judg

ment upon

Writ specially

indorsed in

default of Ap

pearance.

where the Writ

Form.

XXVIII. In case of such nonappearance, where the writ of Judgment for summons is not indorsed in the special form herein before provided, Nonappearance it shall and may be lawful for the plaintiff, on filing an affidavit of is not indorsed personal service of the writ of summons, or a Judge's order for in the special leave to proceed under the provisions of this Act, and a copy of the writ of summons, to file a declaration, indorsed with a notice to plead in eight days, and to sign judgment by default at the expiration of the time to plead, so indorsed as aforesaid; and in the event of no plea being delivered, where the cause of action mentioned in the declaration is for any of the claims which might have been inserted in the special indorsement on the writ of summons

No. 9. Clauses of Act of Parl. 15 & 16 Vic.

c. 76,

in force.

Appearance to
be entered
at any time
before Judg-
ment.

Appearance by the Defendant

in person to give an Address

at which Proceedings may be served.

Mode of
Appearance
to Writ of
Summons.

Proceedings mentioned in Writ or Notice may be had and taken.

herein before provided, and the amount claimed is indorsed on the writ of summons, the judgment shall be final, and execution may issue for an amount not exceeding the amount indorsed on the writ of summons, with interest at the rate specified, if any, and the sum fixed by the Masters for costs, as hereinbefore mentioned, unless the plaintiff claim more, in which case the costs shall be taxed in the ordinary way: Provided always, that in such case the plaintiff shall not be entitled to more costs than if he had made such special indorsement, and signed judgment upon nonappearance.

XXIX. The defendant may appear at any time before judgment, and if he appear after the time specified either in the writ of summons, or in any rule or order to proceed as if personal service had been effected, he shall, after notice of such appearance to the plaintiff or his attorney, as the case may be, be in the same position as to pleadings and other proceedings in the action as if he had appeared in time: Provided always, that a defendant appearing after the time appointed by the writ shall not be entitled to any further time for pleading or any other proceeding than if he had appeared within such appointed time.

XXX. Every appearance by the defendant in person shall give an address, at which it shall be sufficient to leave all pleadings and other proceedings not requiring personal service; and if such address be not given the appearance shall not be received; and if an address so given shall be illusory or fictitious, the appearance shall be irregular, and may be set aside by the Court or a Judge, and the plaintiff may be permitted to proceed by sticking up the proceedings in the Master's office without further service.

XXXI. The mode of appearance to every such writ of summons, or under the authority of this Act, shall be by delivering a memorandum in writing according to the following form, or to the like effect:

"A., plaintiff, against C. D.

or

against C. D. and another,

The defendant C. D. ap-
pears in person.
E. F., attorney for C. D.
appears for him.

or

against C. D. and others. [If the defendant appears in person here give his address.] Entered the day of 18 ." Such memorandum to be delivered to the proper officer or person in that behalf, and to be dated on the day of the delivery thereof.

XXXII. All such proceedings as are mentioned in any writ or notice issued under this Act shall and may be had and taken in default of a defendant's appearance.

Proceedings where only some of the Defendants appear to a

XXXIII. In any action brought against two or more defendants, where the writ of summons is indorsed in the special form hereinbefore provided, if one or more of such defendants only shall appear, and another or others of them shall not appear, it shall and may be lawful for the plaintiff to sign judgment against such deWrit specially fendant or defendants only as shall not have appeared, and, before

indorsed.

declaration against the other defendant or defendants, to issue execution thereupon, in which case he shall be taken to have abandoned his action against the defendant or defendants who shall have appeared; or the plaintiff may, before issuing such execution, declare against such defendant or defendants as shall have appeared, stating

by way of suggestion, the judgment obtained against the other defendant or defendants who shall not have appeared, in which case the judgment so obtained against the defendant or defendants who shall not have appeared shall operate and take effect in like manner as a judgment by default obtained before the commencement of this Act against one or more of the several defendants in an action of debt before the commencement of this Act.

And with respect to the joinder of parties to actions, be it enacted as follows:

before Trial.

XXXIV. It shall and may be lawful for the Court or a Judge, Nonjoinder and at any time before the trial of any cause, to order that any person Misjoinder of Plaintiffs may or persons, not joined as plaintiff or plaintiffs in such cause, shall be amended be so joined; or that any person or persons, originally joined as plaintiff or plaintiffs, shall be struck out from such cause, if it shall appear to such Court or Judge that injustice will not be done by such amendment, and that the person or persons, to be added as aforesaid, consent, either in person or by writing, under his, her, or their hands, to be so joined, or that the person or persons, to be struck out as aforesaid, were originally introduced without his, her, or their consent, or that such person or persons consent in manner aforesaid to be so struck out; and such amendment shall be made upon such terms as to the amendment of the pleadings (if any), postponement of the trial and otherwise, as the Court or Judge by whom such amendment is made shall think proper; and when any such amendment shall have been made, the liability of any person or persons, who shall have been added as co-plaintiff or co-plaintiffs, shall, subject to any terms imposed as aforesaid, be the same as if such person or persons had been originally joined in such cause.

Nonjoinder and Misjoinder of Plaintiffs may the Trial, as

be amended at

XXXV. In case it shall appear at the trial of any action that there has been a misjoinder of plaintiffs, or that some person or persons, not joined as plaintiff or plaintiffs, ought to have been so joined, and the defendant shall not, at or before the time of pleading, have given notice in writing that he objects to such nonjoinder, in cases of specifying therein the name or names of such person or persons, such misjoinder or nonjoinder may be amended, as a variance, at the trial by any Court of Record holding plea in civil actions, and by any Judge sitting at Nisi Prius, or other presiding officer, in like manner as to the mode of amendment, and proceedings consequent thereon, or as near thereto as the circumstances of the case will admit, as in the case of amendments of variances under an Act of Parliament passed in the session of Parliament, held in the third and fourth years of the reign of his late Majesty King William the Fourth, entituled "An Act for the further amendment of the Law, and the better advancement of Justice," if it shall appear to such Court, or Judge, or other presiding officer, that such misjoinder or nonjoinder was not for the purpose of obtaining an undue advantage, and that injustice will not be done by such amendment, and that the person or persons to be added as aforesaid, consent, either in person or by writing, under his, her, or their hands, to be so joined, or that the person or persons to be struck out as aforesaid were originally introduced without his, her, or their consent, or that such person or persons consent, in manner aforesaid, to be so struck out; and such amendment shall be made upon such terms as the Court or Judge, or other presiding officer, by whom such amendment is made, shall think proper; and when any such amendment

No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force.

Joinder of parties.

Amendments of Variances under 3 & 4

W. 4, c. 42.

No. 9. Clauses of Act of Parl. 15 & 16 Vic.

c. 76,

in force.

Upon notice or Plea of

Nonjoinder of Plaintiffs, Proceedings may be amended.

Misjoinder of
Defendants

may be

amended before or at Trial.

Upon Plea in
Abatement

for Nonjoinder of Defendants, Proceedings may be amended.

Provision in
the case of
subsequent
Proceedings
against the
Persons named

in a Plea in
Abatement for
Nonjoinder of
Defendants.

shall have been made, the liability of any person or persons, who shall have been added as co-plaintiff or co-plaintiffs, shall, subject to any terms imposed as aforesaid, be the same as if such person or persons had been originally joined in such action.

XXXVI. In case such notice be given, or any plea in abatement of nonjoinder of a person or persons as co-plaintiff or co-plaintiffs in cases where such plea in abatement may be pleaded, be pleaded by the defendant, the plaintiff shall be at liberty, without any order, to amend the writ and other proceedings before plea, by adding the name or names of the person or persons named in such notice or plea in abatement, and to proceed in the action without any further appearance, on payment of the costs of, and occasioned by such amendment only, and in such case the defendant shall be at liberty to plead de novo.

XXXVII. It shall and may be lawful for the Court or a Judge in the case of the joinder of too many defendants in any action on contract, at any time before the trial of such cause, to order that the name or names of one or more of such defendants be struck out, if it shall appear to such Court or Judge that injustice will not be done by such amendment; and the amendment shall be made upon such terms as the Court or Judge, by whom such amendment is made shall think proper; and in case it shall appear at the trial of any action on contract that there has been a misjoinder of defendants, such misjoinder may be amended, as a variance, at the trial, in like manner as the misjoinder of plaintiffs has been hereinbefore directed to be amended, and upon such terms as the Court or Judge, or other presiding officer, by whom such amendment is made, shall think proper.

XXXVIII. In any action on contract where the nonjoinder of any person or persons as a co-defendant or co-defendants has been pleaded in abatement, the plaintiff shall be at liberty, without any order, to amend the writ of summons and the declaration, by adding the name or names of the person or persons named in such plea in abatement as joint contractors, and to serve the amended writ upon the person or persons so named in such plea in abatement, and to proceed against the original defendant or defendants, and the person or persons so named in such plea in abatement: Provided that the date of such amendment shall, as between the person or persons so named in such plea in abatement and the plaintiff, be considered for all purposes as the commencement of the action.

XXXIX. In all cases after such plea in abatement and amendment, if it shall appear upon the trial of the action that the person or persons so named in such plea in abatement was or were jointly liable with the original defendant or defendants, the original defendant or defendants shall be entitled as against the plaintiff to the costs of such plea in abatement and amendment; but if at such trial it shall appear that the original defendant or any of the original defendants is or are liable, but that one or more of the persons named in such plea in abatement is or are not liable as a contracting party or parties, the plaintiff shall nevertheless be entitled to judgment against the other defendant or defendants who shall appear to be liable; and every defendant who is not so liable shall have judgment, and shall be entitled to his costs as against the plaintiff, who shall be allowed the same, together with the costs of the plea in abatement and amendment, as costs in the cause against

the original defendant or defendants who shall have so pleaded No. 9.
in abatement the nonjoinder of such person: Provided that Clauses of
any such defendant who shall have so pleaded in abatement Act of Parl.
shall be at liberty on the trial to adduce evidence of the
liability of the defendants named by him in such plea in abate-

15 & 16 Vic.
c. 76,
in force.

ment.

XL. In any action brought by a man and his wife for an injury done to the wife, in respect of which she is necessarily joined as co-plaintiff, it shall be lawful for the husband to add thereto claims in his own right; and separate actions brought in respect of such claims may be consolidated, if the Court or a Judge shall think fit: Provided that in the case of the death of either plaintiff such suit, so far only as relates to the causes of action, if any, which do not survive, shall abate.

And with respect to joinder of causes of action, be it enacted as follows:

XLI. Causes of action, of whatever kind, provided they be by and against the same parties and in the same rights, may be joined in the same suit; but this shall not extend to replevin or ejectment; and where two or more of the causes of action so joined are local, and arise in different counties, the venue may be laid in either of such counties; but the Court or a Judge shall have power to prevent the trial of different causes of action together, if such trial would be inexpedient, and in such case such Court or Judge may order separate records to be made up, and separate trials to be had.

And for the determination of questions raised by consent of the parties without pleading, be it enacted as follows:

XLII. Where the parties to an action are agreed as to the question or questions of fact to be decided between them, they may, after writ issued, and before judgment, by consent, and order of a Judge, (which order any Judge shall have power to make, upon being satisfied that the parties have a bona fide interest in the decision of such question or questions, and that the same is or are fit to be tried,) proceed to the trial of any question or questions of fact without formal pleadings; and such question or questions may be stated for trial in an issue in the form contained in the Schedule (A.) to this Act annexed, marked No .6, and such issue may be entered for trial and tried accordingly in the same manner as any issue joined in an ordinary action; and the proceedings in such action and issue shall be under and subject to the ordinary control and jurisdiction of the Court, as in other actions.

XLIII. The parties may, if they think fit, enter into an agrcement in writing, which shall not be subject to any stamp duty, and which shall be embodied in the said or any subsequent order, that upon the finding of the jury in the affirmative or negative of such issue or issues, a sum of money fixed by the parties, or to be as certained by the jury upon a question inserted in the issue for that purpose, shall be paid by one of such parties, to the other of them, either with or without the costs of the action.

K

Joinder of claims by Husband and Wife with claims in right

of Husband.

Joinder of

causes of Action.

Different

causes of
Action

be joined, but
separate Trials
may be ordered.

Questions by

consent without pleading. Questions of Fact may, after Writ issued, by

consent and leave of a

Judge, be raised without pleadings.

Agreement may be entered into for the payment of money and costs according

to the result of the Issue.

XLIV. Upon the finding of the jury in any such issue, judg- Judgment to be ment may be entered for such sum as shall be so agreed or ascertained as aforesaid, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless the Court or a Judge shall otherwise order

entered according to the Agreement, and Exeforthwith, unless stayed.

cut on issued

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