No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force. Nisi Prius Record. Nisi Prius Record not to be sealed or passed. Defendant's right to try, upon default of the Plaintiff preserved. Admission of Proof of Proof of Notice to produce. Expenses of Sheriff or Gaoler may discharge Prisoner by anthority of Attorney in the cause. Proceedings 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. 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. for charging 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. No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force. Proceedings to revive. without Judgment to be revived by Writ or with leave of Court And with respect to proceedings for the revival of judgments and other proceedings by and against persons not parties to the record, 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 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. or Judge, by Suggestion. tion for Suggestion to CXXX. Upon such application, in case it manifestly appears Proceedings that the party making the same is entitled to execution, the Court upon Applica or Judge shall allow such suggestion as aforesaid to be entered in 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 Revicalled upon to show cause why execution should not be awarded, vor, 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 No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force. Marriage not to abate Action. Bankruptcy and Insolvency of Plaintiff when not to abate Action. Arrest of Judgment, and dicto. in arrest of 1 W. 4, c. 7, or for Judgment Non obstante veredicto, omitted Facts may by leave of the Court be suggested. Judgment to follow result of Suggestion. Costs of abortive Issues. CXLI. The marriage of a woman plaintiff or defendant shall not cause the action to abate, but the action may, notwithstanding, be proceeded with to judgment; and such judgment may be executed against the wife alone, or, by suggestion or writ of revivor pursuant to this Act, judgment may be obtained against the husband and wife, and execution issue thereon; and in case of a judgment for the wife, execution may be issued thereupon by the authority of the husband without any writ of revivor or suggestion; 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. CXLII. The bankruptcy or insolvency of the plaintiff in any action which the assignees might maintain for the benefit of the creditors, shall not be pleaded in bar to such action, unless the 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. And with respect to the proceedings upon motions to arrest the judgment, and for judgment non obstante veredicto, be it enacted as follows: CXLIII. Upon any motion made in arrest of judgment, or to enter an arrest of judgment, pursuant to the statute passed in the first year of His late Majesty King William the Fourth, entitled "An Act for the more speedy judgment and execution in actions brought in His Majesty's Courts of Law at Westminster, and in the Court of Common Pleas of the County Palatine of Lancaster, and for amending the law as to judgment on a cognovit actionem in cases of bankruptcy, or for judgment non obstante veredicto, by reason of the non-averment of some alleged material fact or facts or material allegation, or other cause," the party, whose pleading is alleged or adjudged to be therein defective, may, by leave of the 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. CXLIV. If the fact or facts suggested be admitted, or found to be true, the party suggesting shall be entitled to such judgment as he 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. CXLV. Upon an arrest of judgment, or judgment non obstante veredicto, the Court shall adjudge to the party, against whom such judgment is given, the costs occasioned by the trial of any issues of fact, arising out of the pleading for defect of which such judgment is given, upon which such party shall have succeeded; and such costs shall be set off against any money or costs adjudged to the opposite party, and execution may issue for the balance, if any. No. 7. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force. 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 judgment signed or entered of record. Six years. 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. Error not Supersedeas till Service of the copy of the Note and CL. Proceedings in error in law shall be deemed a supersedeas of execution from the time of the service of the copy of such note, together with the statement of the grounds of error intended to be argued, until default in putting in bail, or an affirmance of the judgment, or discontinuance of the proceedings in error, or until 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, I gaa Ardinduer No. 3, 1857, pages 172, 173. No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force. Suggestion instead of Assignment of and Joinder in Error. Roll to be made up and Suggestion entered by Plaintiff in Error. Error brought by one of several persons against whom Judgment has been given. Judgment Roll to be brought into Court instead of Transcript. with two, or, by leave of the Court or a Judge, more than two sufficient sureties, such as the Court (wherein such judgment is or shall be given) or a Judge shall allow of, shall, within four clear days after lodging the memorandum alleging error, or after the signing of the judgment, whichever shall last happen, or before 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. CLII. The assignment of and joinder in error in law shall not be necessary or used, and, instead thereof, a suggestion to the effect that error is alleged by the one party and denied by the 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. CLIII. The roll shall be made up, and the suggestion last aforesaid entered by the plaintiff in error within ten days after the service of the note of the receipt of the memorandum alleging error, or within such other time as the Court or a Judge may order; 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. CLIV. In case error be brought upon a judgment given against several persons, and one or some only shall proceed in error, the memorandum alleging error, and the note of the receipt of such memorandum, shall state the names of the persons by whom the 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. CLV. Upon such suggestion of error alleged and denied being entered, the cause may be set down for argument in the Court of Error in the manner heretofore used; and the judgment roll shall 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 |