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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; provided that the costs of any issue, either of fact or law, shall follow the finding or judgment upon such issue, and be adjudged to the successful party, whatever be the result of the other issue or issues.
LXXXII. No rule of Court for leave to plead several matters shall be necessary where a Judge's order has been made for the
LXXXIII. All objections to the pleading of several pleas, replications, or subsequent pleadings, or several avowries or cognizances, on the ground that they are founded on the same ground of answer or defence, shall be heard upon the summons to plead
Judge's order to plead several
LXXXIV. The following pleas, or any two or more of them, may be pleaded together as of course, without leave of the Court or a Judge; that is to say, a plea denying any contract or debt alleged 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 pleading.
LXXXVI. Except in cases herein specifically provided for, if either party plead several pleas, replications, avowrics, cognizances, or other pleadings, without leave of the Court or a Judge, the opposite party shall be at liberty to sign judgment; provided that such judgment may be set aside by the Court or a Judge, upon an affidavit of ts, and such terms as to costs and otherwise as they or he may think fit.
No. 9. Clauses of
Act of Parl. 15 & 16 Vic.
c. 76, in force.
Objections to pleadings to be heard on Summons to plead several
may be pleaded together with
For pleading several matters Judgment may be signed.
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 delivered in the action, if any, and shall state that the plaintiff proceeds for causes of action different from all those which the 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.
only allowed in respect of
Cause of Action.
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:
“The defendant, by his attorney (or, in person, &c., or plaintiff) Demurrer.
and in the margin thereof some substantial matter of law intended
No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76,
Time for pleading after amendment.
Forms in Schedule may be adopted.
Judgment by Default for liquidated demands final.
to be argued shall be stated; and if any demurrer shall be delivered without such statement, or with a frivolous statement, it may be set aside by the Court or a Judge, and leave may be given to sign judgment as for want of a plea; and the form of a joinder in demurrer shall be as follows, or to the like effect:
Inquiry of Damages may be directed to take place before the Master.
"The plaintiff (or, defendant) says that the declaration (or, plea, dc.,) is good in substance."
XC. Where an amendment of any pleading is allowed, no new notice to plead thereto shall be necessary; but the opposite party 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.
And whereas it is desirable that examples should be given of the statements of causes of action, and of forms of pleading: Be it enacted as follows:
Judgment by Default, and ascertaining amount to be
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.
XCIII. In actions where the plaintiff seeks to recover a debt or liquidated demand in money, judgment by default shall be final.
XCI. The forms contained in the Schedule (B.) to this Act annexed shall be sufficient, and those and the like forms may be 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 substance is expressed without prolixity.
And with respect to judgment by default, and the mode of ascertaining the amount to be recovered thereupon, be it enacted as follows:
XCIV. In actions in which it shall appear to the Court or a Judge that the amount of damages sought to be recovered by the plaintiff is substantially a matter of calculation, it shall not be necessary to issue a writ of inquiry, but the Court or a Judge may direct that the amount, for which final judgment is to be signed, shall be ascertained by one of the masters of the said Court; and the attendance of witnesses and the production of documents before such master may be compelled by the subpoena, 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
a sum of
money, the amount to which he is entitled may be awarded to him by the judgment generally, without any distinction being therein made as to whether such sum is recovered by way of a debt or damages.
XCVI. Nothing in this Act contained shall in any way affect the provisions of a certain Act of Parliament passed in the Session of Parliament holden in the eighth and ninth years of the reign of His Majesty King William the Third, entitled, "An Act for the better preventing frivolous and vexatious Suits, as to the assignment or suggestion of Breaches, or as to judgment for a penalty as a security for Damages in respect of further Breaches."
And with respect to notice of trial and inquiry, and countermand thereof, be it enacted as follows:
No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force.
And with respect to judgment for default in not proceeding to trial, be it enacted as follows:
Saving as to certain provisions of 8 & 9 W. 3, c. 11.
XCVII. Ten days' notice of trial or inquiry, shall be given, and shall be sufficient in all cases, whether at Bar or Nisi Prius, in town or country, unless otherwise ordered by the Court or a Judge.
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 be drawn up on affidavit, without motion.
CI. Where any issue is or shall be joined in any cause, and the plaintiff has neglected or shall neglect to bring such issue on to be tried, that is to say, in town causes where issue has been or shall be joined in, or in the vacation before, any term, for instance, 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 or 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,
Notice of Trial,
of Trial and
Judgment for not proceeding to Trial.
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.
case of Non
Proceeding where Plaintiff neglects to bring on the cause to
Clauses of Act of Parl. 15 & 16 Vic. c. 76,
Nisi Prius Record not to be sealed or passed.
Notice to produce.
Sheriff or Gaoler may discharge Prisoner by authority of Attorney in the cause.
although duly required so to do (which suggestion shall not be traversable, but only be subject to be set aside if untrue), and may sign judgment for his costs: Provided that the Court or a Judge shall have power to extend the time for proceeding to trial, with or without terms.
And with respect to the Nisi Prius record, be it enacted as follows:
CII. The record of Nisi Prius shall not be sealed or passed, but may be delivered to the proper officer of the Court in which the cause is to be tried, to be by him entered as at present, and remain until disposed of.
CXVI. Nothing herein contained shall affect the right of a defendant to take down a cause for trial, after default by the plaintiff to proceed to trial, according to the course and practice of the Court; and if records are entered for trial both by the plaintiff and the defendant, the defendant's record shall be treated as standing next in order after the plaintiff's record in the list of causes, and the trial of the cause shall take place accordingly.
And with respect to the admission of documents, be it enacted 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.
CXVIII. An affidavit of the attorney in the cause, or his clerk, 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.
CXIX. An affidavit of the attorney in the cause, or his clerk, of the service of any notice to produce, in respect of which notice 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.
CXXIII. In every case of execution, the party entitled to execution may levy the poundage fees and expenses of the execution, over and above the sum recovered.
CXXVI. A written order under the hand of the attorney in the cause, by whom any writ of capias ad satisfaciendum shall have been issued, shall justify the sheriff, gaoler, or person in whose custody the party may be under such writ, in discharging such party, unless the party for whom such attorney professes to act 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 for charging
CXXVII. It shall not be necessary in any case to sue out a writ of habeas corpus ad satisfaciendum to charge in execution a in Execution a Person already in Prison of the Court.
person already in the prison of the Court, but such person may be so charged in execution by a Judge's order made upon affidavit that judgment has been signed and is not satisfied; and the service of such order upon the keeper of the prison for the time being shall have the effect of a detainer.
Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force.
And with respect to proceedings for the revival of judgments and other proceedings by and against persons not parties to the record, Proceedings to
be it enacted as follows:
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 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 by reason either of lapse of time, or of a change by death or otherwise of the parties entitled or liable to execution, the party alleging himself to be entitled to execution may either sue out a writ of revivor in the form hereinafter mentioned, or apply to 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, or 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 Applica tion for or 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 Judg marked 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 Revicalled upon to show cause why execution should not be awarded, 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
Judgment to be revived by
Writ or with leave of Court
or Judge, by Suggestion.