Abbildungen der Seite

Summons to


out leave.

be traversed by him, and that the several matters sought to be

No. 9. pleaded as aforesaid by way of confession and avoidance are re

Clauses of spectively true in substance and in fact ; provided that the costs Act of Parl. of any issue, either of fact or law, shall follow the finding or judg- 15 & 16 Vic. ment upon such issue, and be adjudged to the successful party,

c. 76, whatever may be the result of the other issue or issues.

in force. LXXXII. No rule of Court for leave to plead several matters shall be necessary where a Judge's order has been made for the to plead several

Judge's order same purpose.

matters sufficient, LXXXIII. All objections to the pleading of several pleas, re- Objections to plications, or subsequent pleadings, or several avowries or cogni- pleadings to zances, on the ground that they are founded on the same ground of be heard on answer or defence, shall be heard upon the summons to plead

plead several several matters.

LXXXIV. The following pleas, or any two or more of them, Certain Pleas may be pleaded together as of course, without leave of the Court may be pleaded or a Judge; that is to say, a plea denying any contract or debt together withalleged in the declaration ; a plea of tender as to part; a plea of the statute of limitations, set-off, bankruptcy of the defendant, discharge under an insolvent Act, plenè administravit, plenè administravit præter, infancy, coverture, payment, accord and satisfaction, release, not guilty, a denial that the property an injury to which is complained of is the plaintiff's, leave and licence, son assault demesne, and any other pleas which the Judges of the said superior Courts, or any eight or more of them, of whom the chief Judges of the said Courts shall be three, shall by any rule or order, to be from time to time by them made in term or vacation, order or direct.

LXXXV. The signature of counsel shall not be required to any Signature of pleading.

Counsel. LXXXVI. Except in cases herein specifically provided for, if for pleading either party plead several pleas, replications, avowries, cogni- several matters zances, or other pleadings, without leave of the Court or a Judge, Judgment may the opposite party shall be at liberty to sign judgment; provided be signed. that such judgment may be set aside by the Court or a Judge, upon an affidavit of merits, and such terms as to costs and otherwise as they or he may think fit.

LXXXVII. One new assignment only shall be pleaded to any One new number of pleas to the same cause of action; and such new assign- Assignment ment shall be consistent with and confined by the particulars de- only allowed

in respect of livered in the action, if any, and shall state that the plaintiff proceeds for causes of action different from all those which the Cause of Action. pleas profess to justify, or for an excess over and above what all the defences set up in such pleas justify, or both.

LXXXVIII. No plea, which has already been pleaded to the Pleas not to be declaration, shall be pleaded to such new assignment, except a repeated. plea in denial, unless by leave of the Court or a Judge; and such leave shall only be granted upon satisfactory proof that the repetition of such plea is essential to a trial on the merits.

LXXXIX. The form of a demurrer, except in the cases herein Form of specifically provided for, shall be as follows, or to the like effect : Demurrer and

Jinder in “ The defendant, by his attorney (or, in person, &c., or plaintiff) Demurrer.

says, that the declaration (or plea, &c.) is bad in sub

stance;" and in the margin thereof some substantial matter of law intended

the same

[ocr errors]

No. 9. to be argued shall be stated ; and if any demurrer shall be delivered Clauses of without such statement, or with a frivolous statement, it may be set Act of Parl. aside by the Court or a Judge, and leave may be given to sign 15 & 16 Vic. judgment as for want of a plea; and the form of a joinder in dec. 76,

murrer shall be as follows, or to the like effect : in force.

“ The plaintiff (or, defendant) says that the declaration (or,

plea, dc.,) is good in substance. Time for XC. Where an amendment of any pleading is allowed, no new pleading after

notice to plead thereto shall be necessary; but the opposite party amendinent.

shall be bound to plead to the amended pleading within the time specified in the original notice to plead, or within two days after amendment, whichever shall last expire, unless otherwise ordered by the Court or a Judge; and in case the amended pleading has been pleaded to before amendment, and is not pleaded to de novo within two days after amendment, or within such other time as the Court or a Judge shall allow, the pleadings originally pleaded thereto shall stand and be considered as pleaded in answer to such

amended pleading, Examples of And whereas it is desirable that examples should be given of the Pleading. statements of causes of action, and of forms of pleading: Be it

enacted as follows: Forms in

XCI. The forms contained in the Schedule (B.) to this Act Schedule may

annexed shall be sufficient, and those and the like forms may be be adopted. used, with such modifications as may be necessary to meet the facts

of the case ; but nothing herein contained shall render it erroneous

or irregular to depart from the letter of such forms, so long as the Judgment by substance is expressed without prolixity. Default, and

And with respect to judgment by default, and the mode of ascerascertaining amount to be

taining the amount to be recovered thereupon, be it enacted as recovered,

follows: Rule to com XCII. No rule to compute shall be necessary or used; but pute abolished. nothing in this Act contained shall invalidate any proceedings

already taken or to be taken by reason of any rule to compute

made, or applied for, before the commencement of this Act. Judgment by XCIII. In actions where the plaintiff seeks to recover a debt or Default for

liquidated demand in money, judgment by default shall be final. liquidated

XCIV. In actions in which it shall appear to the Court or a demands final.

Judge that the amount of damages sought to be recovered by the Inquiry of Damages may

plaintiff is substantially a matter of calculation, it shall not be be directed to necessary to issue a writ of inquiry, but the Court or a Judge may take place direct that the amount, for which final judgment is to be signed, before the

shall be ascertained by one of the masters of the said Court; and Master.

the attendance of witnesses and the production of documents before
such master may be compelled by the subpæna, in the same manner
as before a jury upon a writ of inquiry; and it shall be lawful for
such master to adjourn the inquiry from time to time, as occasion
may require : and the master shall indorse upon the rule or order
for referring the amount of damages to him, the amount found by
him, and shall deliver the rule or order, with such indorsement,
to the plaintiff'; and such and the like proceedings may thereupon
be had as to taxation of costs, signing judgment, and otherwise, as
upon the finding of a jury upon a writ of inquiry.
XCV. In all actions where the plaintiff recovers

de sum of

to Trial.

money, the amount to which he is entitled may be awarded to him No. 9. by the judgment generally, without any distinction being therein Clauses of made as to whether such sum is recovered by way of a debt or Act of Parl. damages.

15 & 16 Vic. XCVI. Nothing in this Act contained shall in any way affect c. 76, the provisions of a certain Act of Parliament passed in the Session in force. of Parliament holden in the eighth and ninth years of the reign of

Saving as to His Majesty King William the Third, entitled, “ An Act for the

certain provibetter preventing

frivolous and vexatious Suits, as to the assignment sions of 8 & 9 or suggestion of Breaches, or as to judgment for a penalty as a W.3, c. 11. security for Damages in respect of further Breaches.”

And with respect to notice of trial and inquiry, and counter- Notice of Trial, mand thereof, be it enacted as follows:

Inquiry, and

Countermand. XCVII. Ten days' notice of trial or inquiry, shall be given, and

Time for Notice shall be sufficient in all cases, whether at Bar or Nisi Prius, in town of Trial and or country, unless otherwise ordered by the Court or a Judge. Inquiry.

XCVIII. A countermand of notice of trial shall be given four Notice of days before the time mentioned in the notice of trial, unless short Countermand. notice of trial has been given, and then two days before the time mentioned in the notice of trial, unless otherwise ordered by the Court or a Judge, or by consent.

XCIX. A rule for costs of the day for not proceeding to trial Costs of the pursuant to notice, or not countermanding in sufficient time, may day. be drawn up on affidavit, without motion. And with respect to judgment for default in not proceeding to Judgment for

not proceeding trial, be it enacted as follows:

c. The Act passed in the fourteenth year of the reign of His Statute 14 G. Majesty King George the Second, entitled, “An Act to prevent 2, c. 17, as to inconveniences arising from Delays of Causes after issue joined,” Judgment in so far as the same relates to judgment as in the case of a nonsuit, suit repealed. shall be and the same is hereby repealed, except as to proceedings taken or commenced thereupon before the commencement of this Act.

CI. Where any issue is or shall be joined in any cause, and the Proceeding plaintiff has neglected or shall neglect to bring such issue on to where Plaintiff be tried, that is to say, in town causes where issue has been or

neglects to bring

on the cause to shall be joined in, or in the vacation before, any term, for instance, be tried. Hilary term, and the plaintiff has neglected or shall neglect to bring the issue on to be tried during or before the following term and vacation, for instance, Easter term and vacation, and in country causes where issue has been or shall be joined in, or in the vacation before, Hilary or Trinity term, and the plaintiff has neglected or shall neglect to bring the issue on to be tried at or before the second assizes following such term, or if issue has been or shall be joined in, or in the vacation before Easter cr Michaelmas term, then, if the plaintiff has neglected or shall neglect to bring the issue on to be tried at or before the first assizes after such term, whether the plaintiff shall in the mean time have given notice of trial or not, the defendant may give twenty days' notice to the plaintiff to bring the issue on to be tried at the sittings or assizes, as the case may be, next after the expiration of the notice; and if the plaintiff afterwards neglects to give notice of trial for such sittings or assizes, or to proceed to trial in pursuance of the said notice given by the defendant, the defendant may suggest on the record that the plaintiff has failed to proceed to trial,

upon default

No. 9. although duly required so to do (which suggestion shall not be Clauses of traversable, but only be subject to be set aside if untrue), and may Act of Parl. sign judgment for his costs : Provided that the Court or a Judge 15 & 16 Vic. shall have power to extend the time for proceeding to trial, with

c. 76, or without terms. in force.

And with respect to the Nisi Prius record, be it enacted as

follows: Nisi Prius Record.

CII. The record of Nisi Prius shall not be sealed or passed, but Nisi Prius may be delivered to the proper officer of the Court in which the Record not to cause is to be tried, to be by him entered as at present, and remain be sealed or

until disposed of. passed.

CXVI. Nothing herein contained shall affect the right of a Defendant's defendant to take down a cause for trial, after default by the right to try,

plaintiff to proceed to trial, according to the course and practice of of the Plaintiff

the Court; and if records are entered for trial both by the plaintiff preserved. and the defendant, the defendant's record shall be treated as stand

ing next in order after the plaintiff's record in the list of causes,

and the trial of the cause shall take place accordingly. Admission of And with respect to the admission of documents, be it enacted Documents,

as follows:

CXVII. Either party may call on the other party by notice to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial the Judge shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is in the opinion of the

master a saving of expense. Proof of

CXVIII. An affidavit of the attorney in the cause, or his clerk, Admission. of the due signature of any admissions made in pursuance of such

notice, and annexed to the affidavit, shall be in all cases sufficient

evidence of such admissions. Proof of

CXIX. An affidavit of the attorney in the cause, or his clerk, Notice to

of the service of any notice to produce, in respect of which notice produce.

to admit shall have been given, and of the time when it was served, with a copy of such notice to produce annexed to such affidavit, shall be sufficient evidence of the service of the original of such

notice, and of the time when it was served. Expenses of CXXIII. In every case of execution, the party entitled to Execution, execution may levy the poundage fees and expenses of the execu

tion, over and above the sum recovered. Sheriff or

CXXVI. A written order under the hand of the attorney in the

cause, by whom any writ of capias ad satisfaciendum shall have discharge Prisoner by

been issued, shall justify the sheriff, gaoler, or person in whose authority of custody the party may be under such writ, in discharging such Attorney in party, unless the party for whom such attorney professes to act the cause.

shall have given written notice to the contrary to such sheriff, gaoler, or person in whose custody the opposite party may be; but such discharge shall not be a satisfaction of the debt, unless made by the authority of the creditor; and nothing herein contained shall justify any attorney in giving such order for discharge

without the consent of his client. Proceedings

CXXVII. It shall not be necessary in any case to sue out a for charging writ of habeas corpus ad satisfaciendum to charge in execution a in Execution a Person already in Prison of the Court.

Gaoler may


person already in the prison of the Court, but such person may be No. 9. so charged in execution by a Judge's order made upon affidavit that Clauses of judgment has been signed and is not satisfied ; and the service of Act of Parl. such order upon the keeper of the prison for the time being shall 15 & 16 Vic. have the effect of a detainer.

c. 76, And with respect to proceedings for the revival of judgments and in force. other proceedings by and against persons not parties to the record, Proceedings to be it enacted as follows :

revive. CXXVIII. During the lives of the parties to a judgment, or those Execution in of them during whose lives execution may at present issue within Six years a year and a day without a scire facias, and within six years from without

revival, the recovery of the judgment, execution may issue without a revival of the judgment.

CXXIX. In cases where it shall become necessary to revive a Judgment to judgment by reason either of lapse of time, or of a change by be revived by

Writ or with death or otherwise of the parties entitled or liable to execution, the

leave of Court party alleging himself to be entitled to execution may either sue or Judge, by out a writ of revivor in the form hereinafter mentioned, or apply to Suggestion. the Court or a Judge for leave to enter a suggestion upon the roll to the effect that it manifestly appears to the Court that such party is entitled to have execution of the judgment and to issue execution thereupon ; such leave to be granted by the Court or a Judge upon a rule to show cause or a summons, to be served according to the present practice, or in such other manner as such Court or Judge may direct, and which rule or summons may be in the form contained in the Schedule (A.) to this Act annexed, marked No. 7, to the like effect.

CXXX. Upon such application, in case it manifestly appears Proceedings that the party making the same is entitled to execution, the Court upon Applicaor Judge shall allow such suggestion as aforesaid to be entered in

Suggestion to the form contained in the Schedule (A.) to this Act annexed, revive Judgmarked No. 8, or to the like effect, and execution to issue there- ment. upon, and shall order whether or not the costs of such application shall be paid to the party making the same; and in case it does not manifestly so appear, the Court or Judge shall discharge the rule or dismiss the summons with or without costs : Provided nevertheless, that in such last-mentioned case the party making such application shall be at liberty to proceed by writ of revivor or action upon the judgment.

CXXXI. The writ of revivor shall be directed to the party Writ of Rericalled upon to show cause why execution should not be awarded, yor, and

Proceedings and shall bear teste on the day of its issuing : and, after reciting thereon. the reason why such writ has become necessary, it shall call upon the party to whom it is directed to appear within eight days after service thereof in the Court out of which it issues, to show cause why the party at whose instance such writ has been issued should not have execution against the party to whom such writ is directed, and it shall give notice that in default of appearance the party issuing such writ may proceed to execution ; and such writ may be in the form contained in the Schedule (A.) to this Act annexed, marked No. 9, or to the like effect, and may be served in any county, and otherwise proceeded upon, whether in term or vacation, in the same manner as a writ of summons; and the venue in a declaration upon such writ may be laid in any county ; and the pleadings and proceedings thereupon, and the rights of

tion for

« ZurückWeiter »