« EelmineJätka »
an Action, he may, in like Case and Manner as herein-before provided with respect to Mandamus, claim a Writ of Injunction against the Repetition or Continuance of such Breach of Contract, or other Injury, or the Committal of any Breach of Contract or Injury of a like kind, arising out of the same Contract, or relating to the same Property or Right; and he may also in the same Action include a Claim for Damages or
other Redress. Writ LXXX, The Writ of Summons in such Action shall be in of Summons and Endorse the same Form as the Writ of Summons in any Personal ment thereon. Action, but on every such Writ and Copy thereof there shall
be endorsed a Notice that in default of Appearance the Plaintiff may, besides proceeding to Judgment and Execution for Damages
and Costs, apply for and obtain a Writ of Injunction. Form of Pro- . LXXXI. The Proceedings in such Action shall be the ceedings and of Judgment.
same, as nearly as may be, and subject to the like Control, as the Proceedings in an Action to obtain a Mandamus under the Provisions herein-before contained ; and in such Action Judgment may be given that the Writ of Injunction do or do not issue, as Justice may require ; and in case of Disobedience such Writ of Injunction may be enforoed by Attachment by the Court, or, when such Courts shall not be sitting, by a
Judge. Writ of Injunc- LXXXII. It shall be lawful for the Plaintiff at any Time tion may be
ed for at after the Commencement of the Action, and whether before or any Stage of after Judgment, to apply ex parte to the Court or a Judge for a
Writ of Injunction to restrain the Defendant in such Action from the Repetition or Continuance of the wrongful Act or Breach of Contract complained of, or the Committal of any Breach of Contract or Injury of a like kind, arising out of the same Contract, or relating to the same Property or Right; and such. Writ may be granted or denied by the Court or Judge upon such Terms as to the Duration of the Writ, keeping an Account, giving Security, or otherwise, as to such Court or Judge shall seem reasonable and just, and in case of Disobedience such Writ may be enforced by Attachment by the Court, or, when such Courts shall not be sitting, by a Judge: Provided always, that any Order for a Writ of Injunction made by a Judge, or any Writ issued by virtue thereof, may be discharged or varied or set aside by the Court, on Application made thereto by any Party dissatisfied with such
Order. Equitable LXXXIII. It shall be lawful for the Defendant or Plaintiff Defence may be pleaded.
in replevin in any Cause in any of the Superior Courts in which, if Judgment were obtained, he would be entitled to Relief against such Judgment on equitable Grounds, to plead the Facts which entitle him to such Relief by way of Defence, and the said Courts are hereby empowered to receive such Defence by way of Plea; provided that such Plea shall begin with the Words “For Defence on equitable Grounds," or Words to the like Effect.
LXXXIV. Any such Matter which, if it arose , before or Equitable
Defence after during the Time for pleading would be an Answer to the
Judgment. Action by way of Plea, may, if it arise after the Lapse of the Period during which it could be pleaded, be set up by way of Auditâ querelâ.
LXXXV. The Plaintiff may reply, in answer to any Plea of Equitable the Defendant, Facts which avoid such Plea upon equitable Replication. Grounds;
provided that such Replication shall begin with the Words “ For Replication on equitable Grounds," or Words to the like Effect.
LXXXVI. Provided always, That in case it shall appear Court or Judge to the Court, or any Judge thereof, that any such equitable may strike out Plea or equitable Replication cannot be dealt with by a Court of or Replication. Law so as to do Justice between the Parties, it shall be lawful for such Court or Judge to order the same to be struck out on such Terms as to Costs and otherwise as to such Court or Judge may seem reasonable. LXXXVII. In of
any Action founded upon a Bill of Actions on lost Exchange or other negotiable Instrument, it shall be lawful for Instruments. the Court or a Judge to order that the Loss of such Instrument shall not be set up, provided an Indemnity is given, to the Satisfaction of the Court or Judge, or a Master, against the Claims of any other Person upon such negotiable Instrument.
LXXXVIII. The Superior Courts or any Judge thereof Jurisdiction may, upon summary Application, by Rule or Order, exercise under Shipsuch and the like Jurisdiction as may, under the Provisions of an Act of Parliament made and passed in the Fifty-third Year of the Reign of His Majesty King George the Third, intituled An Act to limit the Responsibility of Shipowners in certain Cases, 53 G. 3. c. 159. be exercised by any Court of Equity.
LXXXIX. Any Person who shall, upon any Examination False Evidence. upon Oath or Affirmation, or in any Affidavit in Proceedings under this Act, wilfully and corruptly give false evidence, or wilfully and corruptly
, swear or affirm anything which shall be false, being convicted thereof, shall be liable to the Penalties of wilful and corrupt Perjury.
XC. Writs of Execution to fix Bail may be tested and Execution to returnable in Vacation.
XCI. Proceedings against Executors upon a Judgment of Scire facias on Assets in futuro may be had and taken in the Manner pro- Judgment of
Assets in futuro. vided by * The Common Law Procedure Act, 1852," as to Writs of Revivor.
XCII. Where an Action would, but for the Provisions of To compel “The Common Law Procedure Act, 1852,” have abated by Continuance or reason of the Death of either Party, and in which the Pro- of Action in ceedings may be revived and continued under that Act, the case of Death. Defendant or Person against whom the Action may be so continued may apply by Summons to compel the Plaintiff, or Person entitled to proceed with the Action in the Room of the Plaintiff, to proceed according to the Provisions of the said Act
3 R 2
within such Time as the Judge shall order ; and in default of such Proceeding the Defendant or other Person against whom the Action may be so continued as aforesaid shall be entitled to enter a Suggestion of such Default, and of the representative Character of the Person by or against whom the Action may be proceeded with, as the Case may be, and to have Judgment for the Costs of the Action and Suggestion against the Plaintiff, or against the Person entitled to proceed in his Room as the Case may be, and in the latter Case to be levied of the
Goods of the Testator or Intestate. Claimant in XCIII. If any Person shall bring an Action of Ejectment Secondo Ejecte after a prior Action of Ejectment for the same Premises has Premises been or shall have been unsuccessfully brought by such Person, against same
or by any Person through or under whom he claims against Defendant may the same Defendant or against any Person through or under give Security whom he defends, the Court or a Judge may, if they or he think for Costs.
fit, on the Application of the Defendant at any Time after such Defendant has appeared to the Writ, order that the Plaintiff shall give to the Defendant Security for the Payment of the Defendant's Costs, and that all further Proceedings in the Cause shall be stayed until such Security be given, whether the prior Action has been or shall have been disposed of by Discontinuance, or by Nonsuit, or by Judgment for the
Defendant. As to Writs of XCIV. No Writ of Execution issued before the TwentyExecution issued before
fourth Day of October One thousand eight hundred and fifty24th October two, if unexecuted, shall remain in force for more than Six 1852. Calendar Mothns after the Twenty-fourth Day of October One
thousand eight hundred and fifty-four, unless the same be renewed as herein-after mentioned, but all such Writs may be renewed from Time to Time in the same Manner as Writs issued after the Twenty-fourth Day of October One thousand eight hundred and fifty-two may now be renewed under the
“Common Law Procedure Act, 1852," Section CXXIV. Courts may ap
XCV. The Superior Courts may appoint and hold Sittings point Sittings. either in Banc, or for the Trial of Issues in Fact by Judge or
Jury, at any Time or Times, whether in Term or Vacation, not being between the Tenth of August and the Twenty-fourth
of October. Amendments. XCVI. It shall be lawful for the Superior Courts of Com
mon Law, and every Judge thereof, and any Judge sitting at Nisi Prius, at all Times to amend all Defects and Errors in any Proceedings under the Provisions of this Act, whether there is anything in Writing to amend by or not, and whether the Defect or Error be that of the Party applying to amend or not: and all such Amendments may be made with or without Costs, and upon such Terms as to the Court or Judge may seem 'fit; and all such Amendments as may be necessary for the Purpose of determining in the existing Suit the real Question in controversy between the Parties shall be so made, if duly applied for.
XCVII. It shall be lawful for the Judges of the said General Rules Courts, or any Eight or more of them, of whom the Chiefs may be made of each of the said Courts shall be Three, from Time to Time by the Judges. to make all such General Rules and Orders for the effectual Execution of this Act, and of the Intention and Object hereof, and for fixing the Costs to be allowed for and in respect of the Matters herein contained, and the Performance thereof, as in their Judgment shall be necessary or proper, and for that Purpose to meet from Time to Time as Occasion may require: Provided that nothing herein contained shall be construed to restrain the Authority or limit the Jurisdiction of the said Courts or of the Judges thereof to make Rules or Orders, or otherwise to regulate and dispose of the Business therein.
XCVIII. Such new or altered Writs and Forms of Pro- New Forms of ceedings may be issued, entered, and taken, as may by the Writs and other
Proceedings. Judges of the said Courts, or any Eight or more of them, of whom the Chiefs of each of the said Courts shall be Three, be deemed necessary or expedient for giving Effect to the Provisions herein-before contained, and in such Forms as the Judges of such Courts respectively shall from Time to Time think fit to order ; and such Writs and Proceedings shall be acted upon and enforced in such and the same Manner as Writs and Proceedings of the said Courts are now acted upon and enforced, or as near thereto as the circumstances of the Case will admit; and any existing Writ or Proceeding the Form of which shall be in any Manner altered in pursuance of this Act shall nevertheless be of the same Force and Virtue as if no Alteration had been made therein, except as far as the Effect thereof may be varied by this Act. XCIX. In the Construction of this Act the Word “ Court" Interpretation
of Terms. shall be understood to mean any One of the Superior Courts of Common Law at Westminster; and the Word “Judge" shall be understood to mean a Judge or Baron of any of the said Courts; and the Word - Master" shall be understood to mean a Master of any of the said Courts; and the Word “ Action” shall be understood to mean any Personal Action in any of the said Courts.
C. All the Enactments and Provisions of this Act not rela- Provisions ting exclusively to the Sittings for Trials of Causes or Issues relating to in Fact at London or Westminster shall extend and apply to Superior Courts the Court of Common Pleas at Lancaster and the Court of Court of ComPleas at Durham, and Actions and Proceedings therein re- mon Pleas at spectively, subject to the following Modifications: All the Court of Pleas Powers given by this Act to the Judges of the said Superior at Durham. Courts of Common Law at Westminster to make General Rules and Orders shall and may be exercised by the respective Judges of the Court of Common Pleas at Lancaster and Court of Pleas at Durham, being Judges of One of the said Common Law Courts at Westminster, or any Two of them respectively, with respect to the said Court of Common Pleas 3 R 3
at Lancaster and Court of Pleas at Durham respectively, and Matters and Proceedings therein within the Jurisdiction of the same Courts respectively; and all Powers under this Act exercisable by any One Judge of the Superior Courts at Westminster shall and may be exercisable by One Judge of the said Superior Courts of the said Counties Palatine, being also a Judge of One of the said Courts at Westminster, as to Matters and Proceedings in the said Superior Courts of the
said Counties Palatine. Provisions as CI. Provided always, That all the Provisions of this Act to Masters of Superior Courts applicable to Masters of the said Courts at Westminster shall to apply to apply to the respective Prothonotaries of the Court of Common Prothonotaries Pleas at Lancaster and Court of Pleas at Durham and their of Palatinate Courts.
respective Deputies acting in the Execution of the Duties of such Offices, which acting Officers respectively may singly exercise with reference to Matters and Proceedings in the lastmentioned Courts respectively the Powers hereby given to the
Masters of the Superior Courts at Westminster. Court of
CII. Provided also, as to Proceedings in Appeal, That the Queen's Bench Court of Queen's Bench, being the Court of Error from the of Appeal from said Court of Common Pleas at Lancaster and Court of Pleas Palatinate at Durham respectively, shall also be the Court of Appeal Courts.
from the said respective Courts for the Purposes of this Act in reference to Motions for new Trials, or to enter Verdicts or Nonsuits previously made to the Judges of the said respective Courts of Common Pleas at Lancaster and Court of
Pleas at Durham respectively. Enactments in CIII. The Enactments contained in Sections Nineteen,
Twenty, Twenty-one, Twenty-two, Twenty-three, Twentyapply to every Civil Court of four, Twenty-five, Twenty-six, Twenty-seven, and TwentyJudicature. eight, Twenty-nine, Thirty, Thirty-one, and Thirty-two of this
Act shall apply and extend to every Court of Civil Judicature
in England and Ireland. Commence CIV. The Provisions of this Act shall come into operation ment of Act.
on the Twenty-fourth Day of October in the Year of our Lord
One thousand eight hundred and fifty-four. Her Majesty CV. It shall be lawful for Her Majesty from Time to Time, may direct all by an Order in Council, to direct that all or any Part of the Act to extend Provisions of this Act, or of the Rules to be made in pursuto any Court of ance thereof, shall apply to all or any Court or Courts of Record.
Record in England and Wales, and within One Month after such Order shall have been made and published in the London Gazette such Provisions and Rules respectively shall extend and apply in manner directed by such Order, and any such Order may be in like Manner from Time to Time altered and annulled; and in and by any such Order Her Majesty may direct by whom any Powers or Duties incident to the Provisions applied under this Act, or the Common Law Procedure Act, 1852, shall and may be exercised with respect to Matters in such Court or Courts, and may make any