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15 & 16 Vic.
after Writ issued
Costs to follow the event, unless otherwise agreed. Pleadings in general.
needless averments not to be made.
for the purpose of giving either party an opportunity for moving to set aside the verdict, or for a new trial.
XLV. The proceedings upon such issue may be recorded at the instance of either party, and the judgment, whether actually recorded or not, shall have the same effect as any other judgment in a contested action.
Objections by way of Special Demurrer taken
away. Pleadings framed to embarrass may be struck out or amended.
XLVI. The parties may, after writ issued, and before judgment, by consent, and order of a Judge, state any question or questions of law in a special case for the opinion of the Court, without any pleadings.
XLVII. The parties may, if they think fit, enter into an agrecment 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 judgment of the Court being given in the affirmative or negative of the question or questions of law raised by such special case, a sum of money, fixed by the parties, or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of such parties to the other of them, either with or without costs of the action; and the judgment of the Court may be entered for such sum as shall be so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed by proceedings in error.
XLVIII. In case no agreement shall be entered into as to the costs of such action, the costs shall follow the event, and be recovered by the successful party.
And with respect to the language and form of pleadings in general, be it enacted as follows:
to the very
and where issue is joined on such demurrer, the Court shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission, defect in or lack of form; and no judgment shall be arrested, stayed or reversed for any such imperfection, omission, defect in or lack of form.
LI. No pleading shall be deemed insufficient for defect which could heretofore only be objected to by a special demurrer. LII. If any pleading be so framed as to prejudice, embarrass, or delay the fair trial of the action, the opposite party may apply to the Court or a Judge to strike out or amend such pleading, and the Court or any Judge shall make such order respecting the same, and also respecting the costs of the application, as such Court or Judge shall see fit.
LIII. Rules to declare, or to declare peremptorily, and rules to
XLIX. All statements which need not be proved, such as the statement of time, quantity, quality, and value, where these are immaterial; the statement of losing and finding, and bailment, in actions for goods or their value; the statement of acts of trespass having been committed with force and arms, and against the peace of Our lady the Queen; the statement of promises which need not be proved, as promises in Indebitatus counts, and mutual promises to perform agreements; and all statements of a like kind shall be omitted.
reply, and plead subsequent pleadings, shall not be necessary, and instead thereof a notice shall be substituted requiring the opposite party to declare, reply, rejoin, or as the case may be, within four days, otherwise judgment; such notice to be delivered separately or indorsed on any pleading to which the opposite party is required to reply, rejoin, or as the case may be.
LIV. Every declaration and other pleading shall be entitled of the proper Court, and of the day of the month and the year when the same was pleaded, and shall bear no other time or date, and every declaration and other pleading shall also be entered on the record made up for trial and on the judgment roll under the date of the day of the month and year when the same respectively took place, and without reference to any other time or date, unless otherwise specially ordered by the Court or a Judge.
LV. It shall not be necessary to make profert of any deed or Profert and other document mentioned or relied on in any pleading; and if Oyer abolished. profert shall be made it shall not entitle the opposite party to crave oyer of or set out upon oyer such deed or other document.
Documents may be set forth and be
LVI. A party pleading in answer to any pleading in which any document is mentioned or referred to shall be at liberty to set out the whole or such part thereof as may be material, and the matter considered a so set out shall be deemed and taken to be part of the pleading in part of the which it is set out. pleading in which it is set forth. LVII. It shall be lawful for the plaintiff or defendant in any Performance action to aver performance of conditions precedent generally, and of conditions the opposite party shall not deny such averment generally, but precedent may shall specify in his pleading the condition or conditions precedent be averred generally. the performance of which he intends to contest.
And with regard to the time and manner of declaring, and to particulars of demand, be it enacted as follows:
LVIII. A plaintiff shall be deemed out of Court, unless he declare within one year after the writ of summons is returnable.
LIX. Every declaration shall commence as follows, or to the like effect:
"And the plaintiff claims £
(or, if the action is brought to recover specific goods, the plaintiff claims a return of the said goods or their value, and £ for their detention.)"
No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force.
LX. In all cases in which, after a plea in abatement of the nonjoinder of another person as defendant, the plaintiff shall, without having proceeded to trial on an issue thereon, commence another action against the defendant or defendants in the action in which such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, or shall amend by adding the omitted defendant or defendants, the commencement of the declaration shall be in the following form or to the like effect:
be dated and entered as of
time of pleading, unless order to the contrary.
[Venue.] "A.B. by E.F., his attorney, (or in person, as the case of Declaration. may be), sues C.D. for (here state the cause of action);"
And shall conclude as follows or to the like effect:
[Venue.] "A.B. by E.F., his attorney (or in his own proper person, &c.), sues C.D. and G.H., which said C.D. has heretofore pleaded in abatement the nonjoinder of the said G.H. for," &c.
declare within a year.
Forms of commencement &c.
Commencement of De
claration after Plea of Nonjoinder.
No. 9. Clauses of Act of Parl. 15 & 16 Vic.
c. 76, in force.
Rules to plead and demand of
plea abolished. Time for pleading where Defendant
is within Jurisdiction to be eight days. Express color abolished.
Commence. ment of plea.
Plea of matter subsequent to Action.
LXI. In actions of libel and slander the plaintiff shall be at liberty to aver that the words or matter complained of were used in a defamatory sense, specifying such defamatory sense without any prefatory averment to show how such words or matter were used in that sense, and such averment shall be put in issue by the denial of the alleged libel or slander; and where the words or matter set forth, with or without the alleged meaning, show a cause of action, the declaration shall be sufficient.
And as to pleas and subsequent pleadings, be it enacted as follows:
LXII. No rule to plead or demand of plea shall be necessary, and the notice to plead indorsed on the declaration or delivered separately shall be sufficient.
LXIII. In cases where the defendant is within the jurisdiction, the time for pleading in bar, unless extended by the Court or a Judge, shall be eight days; and a notice requiring the defendant to plead thereto in eight days, otherwise judgment, may, whether the declaration be delivered or filed, be indorsed upon the declaration, or delivered separately.
LXIV. Express color shall no longer be necessary in any pleading.
LXV. Special traverses shall not be necessary in any pleading. LXVI. In a plea or subsequent pleading it shall not be necessary to use any allegation of actionem non, or actionem ulterius non, or to the like effect, or any prayer of judgment, nor shall it be necessary in any replication or subsequent pleading, to use any allegation of precludi non, or to the like effect, or any prayer of Judgment.
LXVII. No formal defence shall be required in a plea, or avowry, or cognizance, and it shall commence as follows, or to the like effect:
"The defendant by
his attorney (or in person, or as the case may be,) says that (here state first defence)" and it shall not be necessary to state in a second or other Plea, or avowry, or cognizance, that it is pleaded by leave of the Court or a Judge, or according to the form of the statute, or to that effect; but every such plea, avowry, or cognizance shall be written in a separate paragraph, and numbered, and shall commence as follows, or to the like effect:
"And for a second (&c.) Plea the defendant says, that (here state second, &c. defence);'
or if pleaded to part only, then as follows, or to the like effect:
and no formal conclusion shall be necessary to any plea, avowry, cognizance or subsequent pleading.
LXVIII. Any defence arising after the commencement of any action shall be pleaded according to the fact, without any formal commencement or conclusion; and any plea which does not state whether the defence therein set up arose before or after action shall be deemed to be a plea of matter arising before action.
LXIX. In cases in which a plea puis darrein continuance has heretofore been pleaded in Banc or at Nisi Prius, the same defence may be pleaded with an allegation that the matter arose after the last pleading: and such plea may, when necessary, be pleaded at Nisi Prius, between the tenth of August and twenty-fourth of October; but no such plea shall be allowed unless accompanied by an affidavit that the matter thereof arose within eight days next before the pleading of such plea, or unless the Court or a Judge shall other- darrein conwise order. tinuance when and how to be pleaded. LXX. It shall be lawful for the defendant in all actions, (except Payment into actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching of the plaintiff's daughter or servant,) and, by leave of the Court or a Judge, upon such terms as they or he may think fit, for one or more of several defendants to pay into Court a sum of money by way of compensation or amends: Provided that nothing herein contained shall be taken to affect the provisions of a certain Act of Parliament passed in the session of Parliament holden in the sixth and seventh years of the reign of Her present Majesty, entitled, “An Act to amend the Law respecting defamatory Words and Libel."
Court in certain Actions.
LXXI. When money is paid into Court, such payment shall be pleaded in all cases, as near as may be, in the following form, mutatis mutandis:
his attorney (or in person, &c.)
"The defendant by
(if pleaded to part say, as to £
No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force.
Payment into Court, how pleaded.
LXXII. No rule or Judge's order to pay money into Court No order to shall be necessary, except in the case of one or more of several pay money defendants, but the money shall be paid to the proper officer of into Court. each Court, who shall give a receipt for the amount in the margin of the Plea, and the said sum shall be paid out to the plaintiff or to his attorney, upon a written authority from the plaintiff, on demand.
LXXIII. The plaintiff, after the delivery of a plea of payment Proceeding of money into Court, shall be at liberty to reply to the same by by Plaintiff accepting the sum so paid into Court in full satisfaction and dis- after payment charge of the cause of action in respect of which it has been paid in, and he shall be at liberty in that case to tax his costs of suit, and, in case of nonpayment thereof within forty-eight hours, to sign judgment for his costs of suit so taxed, or the plaintiff may reply that the sum paid into Court is not enough to satisfy the claim of the plaintiff in respect of the matter to which the plea is pleaded; and, in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his costs of suit.
Pleas to Actions partaking
both of Breach of Contract and
LXXIV. Whereas certain causes of action may be considered to partake of the character both of breaches of contract and of wrongs, and doubts may arise as to the form of pleas in such actions, and it is expedient to preclude such doubts: any plea Wrong. which shall be good in substance, shall not be objectionable on the ground of its treating the declaration either as framed for a breach of contract, or for a wrong.
No. 9. Clauses of Act of Parl. 15 & 16 Vic.
Traverse of Plea or subsequent pleading of Defendant.
Traverse of Replication or subsequent pleading of the Plaintiff.
Joinder of issue.
As to pleading and demurring together.
Several matters may be pleaded at any stage of the pleadings.
LXXV. Pleas of payment and set-off, and all other pleadings capable of being construed distributively, shall be taken distributively, and if issue is taken thereon, and so much thereof as shall be sufficient answer to part of the causes of action proved shall be found true by the jury, a verdict shall pass for the defendant in respect of so much of the causes of action as shall be answered, and for the plaintiff in respect of so much of the causes of action as shall not be so answered.
LXXVI. A defendant may either traverse generally such of the facts contained in the declaration as might have been denied by one plea, or may select and traverse separately any material allegation in the declaration, although it might have been included in a general traverse.
LXXVII. A plaintiff shall be at liberty to traverse the whole of any plea or subsequent pleading of the defendant by a general denial, or admitting some part or parts thereof, to deny all the rest, or to deny any one or more allegations.
LXXVIII. A defendant shall be at liberty in like manner to deny the whole or part of a replication or subsequent pleading of the plaintiff.
LXXIX. Either party may plead, in answer to the plea or subsequent pleading of his adversary, that he joins issue thereon, which joinder of issue may be as follows or to the like effect:
"The plaintiff joins issue upon the defendant's 1st (&'c., specifying what or what part) plea :"
"The defendant joins issue upon the plaintiff's replication to the 1st (dc., specifying what) plea :"
and such form of joinder of issue shall be deemed to be a denial of the substance of the plea or other subsequent pleading, and an issue thereon; and in all cases where the plaintiff's pleading is in denial of the pleading of the defendant, or some part of it, the plaintiff may add a joinder of issue for the defendant.
LXXX. Either party may, by leave of the Court or a Judge, plead and demur to the same pleading at the same time, upon an affidavit by such party, or his attorney, if required by the Court or Judge to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to be traversed by him, and that the several matters sought to be pleaded as aforesaid by way of confession and avoidance are respectively true in substance and in fact, and that he is further advised and believes that the objections raised by such demurrer are good and valid objections in law, and it shall be in the discretion of the Court or a Judge to direct which issue shall be first disposed of.
LXXXI. The plaintiff in any action may, by leave of the Court or a Judge, plead in answer to the plea, or the subsequent pleading of the defendant, as many several matters as he shall think necessary to sustain his action; and the defendant in any action may, by leave of the Court or a Judge, plead in answer to the declaration, or other subsequent pleading of the plaintiff, as many several matters as he shall think necessary for his defence, upon an affidavit of the party making such application, or his attorney, if required by the Court or Judge, to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to