Abbildungen der Seite
PDF
EPUB

No. 9. the parties respectively to costs shall be the same as in an ordinary Clauses of action. Act of Parl. CXXXII. All writs of scire facias issued out of any of the 15 & 16 Vic. Superior Courts of Law at Westminster against bail on a recog

c. 76, nizance; ad audiendum errores ; against members of a joint stock in force. company or other body, upon a julgment recorded against a public

officer or other person sued as representing such company or body, Writs of Scire facias or against such company or body itself; by or against a husband in other cases

to have execution of a judgment for or against a wife; for restituto be tested, tion after a reversal in error; upon a suggestion of further breaches directed, and

after judgment for any penal sum, pursuant to the statute passed in proceeded upon the session held in the eighth and ninth years of the reign of King in like manner.

William the Third, entitled “ An Act for the better preventing Frivolous and Vexatious Suits ;” or for recovery of land taken under an elegit, shall be tested, directed, and proceeded upon in like

manner as writs of revivor. Appearance to CXXXIII. Notice in writing to the plaintiff, his attorney, or writ of Revivor. agent, shall be sufficient appearance to a writ of revivor. As to Issue of

CXXXIV. A writ of revivor to revive a judgment less than ten Writ of Revivor upon Judgment years old shall be allowed without any rule or order; if more than more than

ten years old, not without a rule of Court or a Judge's order; nor, Ten years old. if more than fifteen, without a rule to show cause. Death, Mar

And with respect to the effect of death, marriage, and bankruptcy riage, and

upon the proceedings in an action, be it enacted as follows: Bankruptcy. Action not

CXXXV. The death of a plaintiff or defendant shall not cause to abate by the action to abate, but it may be continued as hereinafter menDeath.

tioned. Proceedings

CXXXVI. If there be two or more plaintiffs or defendants, and in case of Death of

one or more of them should die, if the cause of such action shall

survive to the surviving plaintiff or plaintiffs,or against the surviving of several defendant or defendants, the action shall not be thereby abated; Plaintiffs or

but such death being suggested upon the record, the action shall Defendants.

proceed at the suit of the surviving plaintiff or plaintiffs against

the surviving defendant or defendants. Proceedings CXXXVII. In case of the death of a sole plaintiff or sole surin case of

viving plaintiff, the legal representative of such plaintiff may, by sole Plaintiff.

leave of the Court or a Judge, enter a suggestion of the death, and that he is such legal representative, and the action shall thereupon proceed, and if such suggestion be made before the trial, the truth of the suggestion shall be tried thereat, together with the title of deceased plaintiff, and such judgment shall follow upon

the verdict in favour of or against the person making such suggestion,

as if such person were originally the plaintiff. Proceeding

CXXXVIII. In case of the death of a sole defendant or sole

surviving defendant, where the action survives, the plaintiff may of sole or sole surviving

make a suggestion, either in any of the pleadings, if the cause has Deten laut.

not arrived at issue, or in a copy of the issue, if it has so arrived, of the death, and that a person named therein is the executor or administrator of the deceased ; and may thereupon serve such executor or administrator with a copy of the writ and suggestion, and with a notice, signed by the plaintiff or his attorney, requiring such executor or administrator to appear within eight days after service of the notice, inclusive of the day of such service, and that in default of his so doing the plaintiff may sign judgment against him as such executor or administrator; and the same proceedings

one or more

upon death

[ocr errors]

may be had and taken in case of non-appearance after such notice,

No. 9. as upon a writ against such executor or administrator in respect Clauses of of the cause for which the action was brought; and in case no Act of Parl. pleadings have taken place before the death, the suggestion shall 15 & 16 Vic. form part of the declaration, and the declaration and suggestion may c. 76, be served together, and the new defendant shall plead thereto at

in force. the same time; and in case the plaintiff shall have declared, but the defendant shall not have pleaded before the death, the new defendant shall plead at the same time to the declaration and suggestion ; and in case the defendant shall have pleaded before the death, the new defendant shall be at liberty to plead to the suggestion only by way of denial, or such plea as may be appropriate to and rendered necessary by his character of executor or administrator, unless by leave of the Court or a Judge, he should be permitted to plead fresh matter in answer to the declaration; and in case the defendant shall have pleaded before the death, but the pleadings shall not have arrived at issue, the new defendant, besides pleading to the suggestion, shall continue the pleadings to issue in the same manner as the deceased might have done, and the pleadings upon the declaration and the pleadings upon the suggestion shall be tried together; and in case the plaintiff shall recover, he shall be entitled to the like judgment in respect to the debt or sum sought to be recovered and in respect of the cost prior to the suggestion, and in respect of the costs of the suggestion and subsequent thereto, he shall be entitled to the like judgment as in an action originally commenced against the executor or administrator.

CXXXIX. The death of either party between the verdict and Death between the judgment, shall not hereafter be alleged for error, so as such Verdict and judgment be entered within two terms after such verdict.

Judgment. CXL. If the plaintiff in any action happen to die after an inter- Proceedings locutory judgment and before a final judgment obtained therein, in case of the said action shall not abate by reason thereof, if such action Death after might be originally prosecuted or maintained by the executor or and before administrator of such plaintiff'; and if the defendant die after such final Judgment. interlocutory judgment and before final judgment therein obtained, the said action shall not abate, if such action might be originally prosecuted or maintained against the executor or administrator of such defendant; and the plaintiff, or if he be dead after such interlocutory judgment, his executors or administrators, shall and may have a writ of revivor, in the form contained in the Schedule (A.) to this Act annexed, marked No. 9, or to the like effect, against the defendant, if living after such interlocutory judgment, or if he be dead, then against his executors or administrators, to show cause why damages in such action should not be assessed and recovered by him or them; and if such defendant, his executors or administrators, shall appear at the return of such writ, and not show or allege any matter sufficient to arrest the final judgment, or shall make default, a writ of inquiry of damages shall be thereupon awarded, or the amount, for which final judgment is to be signed, shall be referred to one of the Masters, as hereinbefore provided; and upon the return of the writ, or delivery of the order with the amount indorsed thereon to the plaintiff, his executors or administrators, judgment final shall be given for the said plaintiff, his executors or administrators, prosecuting such writ of revivor, against such defendant, his executors or administrators respectively.

No. 9.

CXLI. The marriage of a woman plaintiff or defendant shall Clauses of not cause the action to abate, but the action may, notwithstanding, Act of Parl. be proceeded with to judgment; and such judgment may be exe15 & 16 Vic. cuted against the wife alone, or, by suggestion or writ of revivor

c. 76, pursuant to this Act, judgment may be obtained against the husin force. band and wife, and execution issue thereon; and in case of a

judgment for the wife, execution may be issued thereupon by the Marriage not to abate authority of the husband without any writ of revivor or suggestion ; Action. and if in any such action the wife shall sue or defend by attorney

appointed by her when sole, such attorney shall have authority to continue the action or defence, unless such authority be countermanded by the husband, and the attorney changed according to

the practice of the Court. Bankruptcy CXLII. The bankruptcy or insolvency of the plaintiff in any and Insolvency action which the assignees might maintain for the benefit of the when not to

creditors, shall not be pleaded in bar to such action, unless the abate Action,

assignees shall decline to continue, and give security for the costs thereof upon a Judge's order to be obtained for that purpose, within such reasonable time as the Judge may order, but the proceedings may be stayed until such election is made ; and in case the assignees neglect or refuse to continue the action, and give such security within the time limited by the order, the defendant may, within eight days after such neglect or refusal, plead the

bankruptcy. Arrest of

And with respect to the proceedings upon motions to arrest the Judgment, and judgment, and for judgment non obstante veredicto, be it enacted Judgment non

as follows: obstante vere

CXLIII. Upon any motion made in arrest of judgment, or to dicto. Upon Motion enter an arrest of judgment, pursuant to the statute passed in the in arrest of first year of His late Majesty King William the Fourth, entitled Judgment, “An Act for the more speedy judgment and execution in actions pursuant to i W. 4, c. 7,

brought in His Majesty's Courts of Law at Westminster, and in or for Judg

the Court of Common Pleas of the County Palatine of Lancaster, ment Non and for amending the law as to judgment on a cognovit actionem obstante vere in cases of bankruptcy, or for judgment non obstante veredicto, by dicto, omitted Facts may by

reason of the non-averment of some alleged material fact or facts leave of the

or material allegation, or other cause,” the party, whose pleading is

alleged or adjudged to be therein defective, may, by leave of the gested. Court, suggest the existence of the omitted fact or facts, or other

matter, which, if true, would remedy the alleged defect; and such suggestion may be pleaded to by the opposite party within eight days after notice thereof, or such further time as the Court or a Judge may allow; and the proceedings for trial of any issues joined upon such pleadings shall be the same as in an ordinary

action. Judgment to CXLIV. If the fact or facts suggested be admitted, or found to follow result

be true, the party suggesting shall be entitled to such judgment as he of Suggestion. would have been entitled to, if such fact or facts or allegations had

been originally stated in such pleading, and proved or admitted on the trial, together with the costs of, and occasioned by, the suggestion and proceedings thereon; but if such fact or facts be found untrue, the opposite party shall be entitled to his costs of, and occasioned by, the suggestion and proceedings thereon, in addition

to any other costs to which he may be entitled. Costs of

CXLV. Upon an arrest of judgment, or judgment non obstante abortive Issues,

Court be sug

Six

veredicto, the Court shall adjudge to the party, against whom such

No. 7. judgment is given, the costs occasioned by the trial of any issues Clauses of of fact, arising out of the pleading for defect of which such judg- Act of Parl. ment is given, upon which such party shall have succeeded; and 15 & 16 Vic. such costs shall be set off against any money or costs adjudged to

c. 76, the opposite party, and execution may issue for the balance, if

in force. any.

And with respect to proceedings in error, be it enacted as Error. follows:

CXLVI. No judgment in any cause shall be reversed or avoided Error to be for any error or defect therein, unless error be commenced, or brought within brought and prosecuted with effect, within six

years. after such

years judgment signed or entered of record.

CXLVII. If any person that is or shall be entitled to bring Proviso for error as aforesaid is or shall be, at the time of such title accrued, Disabilities. within the age of twenty-one years, femme covert, non compos mentis, or beyond the seas, then such person shall be at liberty to bring error as aforesaid, so as such person commences, or brings and prosecutes the same with effect within six years after coming to or being of full age, discovert, of sound memory, or return from beyond the seas; and if the opposite party shall, at the time of the judgment signed or entered of record, be beyond the seas, then error may be brought, provided the proceedings be commenced and prosecuted with effect within six years after the return of such party from beyond seas. CXLVIII. A writ of error shall not be necessary or used in any

Writ of Error cause, and the proceeding to error shall be a step in the cause, and abolished. shall be taken in manner hereinafter mentioned; but nothing in this Act contained shall invalidate any proceedings already taken or to be taken by reason of any writ of error issued before the commencement of this Act.

CXLIX. Either party alleging error in law may deliver to one Error in Law of the Masters of the Court a memorandum in writing, in the form how brought. contained in the schedule (A.) to this Act annexed, marked No. 10, or to the like effect, entitled in the Court and cause, and signed by the party or his attorney, alleging that there is error in law in the record and proceedings; whereupon the master shall file such memorandum, and deliver to the party lodging the same a note of the receipt thereof; and a copy of such note, together with a statement of the grounds of error intended to be argued, may be served on the opposite party or his attorney.

CL. Proceedings in error in law shall be deemed a supersedeas Error not of execution from the time of the service of the copy of such note, Supersedeas together with the statement of the grounds of error intended to bé till Service of

the copy of argued, until default in putting in bail, or an affirmance of the

the Note and judgment, or discontinuance of the proceedings in error, or until grounds of the proceedings in error shall be otherwise disposed of without a Error. reversal of the judgment: Provided always, that if the grounds of error shall appear to be frivolous, the Court or a Judge upon summons may order execution to issue.

CLI. Upon any judgment hereafter to be given in any of the Bail in Error. said superior Courts of Common Law in any action, execution shall not be stayed or delayed by proceedings in error, or supersedeas thereupon, without the special order of the Court or a Judge, unless the person in whose name such proceedings in error be brought,

No. 9. with two, or, by leave of the Court or a Judge, more than two sufClauses of ficient sureties, such as the Court (wherein such judgment is or Act of Parl. shall be given) or a Judge shall allow of, shall, within four clear 15 & 16 Vic. days after lodging the memorandum alleging error, or after the

c. 76, signing of the judgment, whichever shall last happen, or before in force. execution executed, be bound unto the party for whom any such

judgment is or shall be given, by recognizance to be acknowledged in the same Court, in double the sum adjudged to be recovered by the said judgment, (except in case of a penalty, and in case of a penalty in double the sum really due, and double the costs) to prosecute the proceedings in error with effect, and also to satisfy and pay (if the said judgment be affirmed, or the proceedings in error be discontinued by the plaintiff therein,) all and singular the sum or sums of money and costs adjudged or to be adjudged upon the former judgment, and all costs and damages to be also awarded for the delaying of execution, and shall give notice thereof to the

defendant in error, or his attorney. Suggestion CLII. The assignment of and joinder in error in law shall not instead of

be necessary or used, and, instead thereof, a suggestion to the Assignment of and Joinder in

effect that error is alleged by the one party and denied by the Error. other, may be entered on the judgment roll in the form contained

in schedule (A.) to this Act annexed, marked No. 11, or to the like effect: Provided that in case the defendant in error intends to rely upon the proceeding in error being barred by lapse of time, or by release of error, or other like matter of fact, he may give four days' written notice to the plaintiff in error to assign error as heretofore, instead of entering the suggestion; and he shall, within eight days, plead thereto the bar by lapse of time, or release of error, or other like matter of fact; and thereupon such proceedings

may be had as heretofore. Roll to be

CLIII. The roll shall be made up, and the suggestion last aforemade up and Suggestion

said entered by the plaintiff in error within ten days after the entered by

service of the note of the receipt of the memorandum alleging Plaintiff in error, or within such other time as the Court or a Judge may order; Error.

and in default thereof, or of assignment of error in cases where an assignment is required, the defendant in error, his executors or

administrators, shall be at liberty to sign judgment of non-pros. Error brought CLIV. In case error be brought upon a judgment given against by one of

several persons, and one or some only shall proceed in error, the several persons against whom memorandum alleging error, and the note of the receipt of such Judgment has memorandum, shall state the names of the persons by whom the been given.

proceedings are taken ; and in case the other persons, against whom judgment has been given, decline to join in the proceedings in error, the same may be continued, and the suggestion last aforesaid entered, stating the persons by whom the proceedings are brought, without any summons and severance, or if such other persons elect to join, then the suggestion shall state them to be, and they shall be deemed as plaintiffs in error, although not mentioned as such in

the previous proceedings. Judgment Roll CLV. Upon such suggestion of error alleged and denied being to be brought

entered, the cause may be set down for argument in the Court of into Court instead of

Error in the manner heretofore used; and the judgment roll shall Transcript.

without any writ or return, be brought by the Master into the Court of Error in the Exchequer Chamber, before the Justices, or Justices and Barons, as the case may be, of the other two superior

« ZurückWeiter »