second eject

mises against same defendant may be

93. If any person shall bring an action of Claimant in ejectment after a prior action of ejectment for ment for the same premises has been or shall have been same preunsuccessfully brought by such person, or by any person through or under whom he claims ordered to against the same defendant, or against any for costs. give security person through or under whom he defends, the court or a judge may, if they or he think 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.

See Chit. Archb. 1203; Doe v. Harland, 10 A. & E. 761; Doe d. Bather v. Brayne, 18 L. J. 3, Q. B.

of execution

1852.

94. No writ of execution issued before the As to writs twenty-fourth day of October one thousand eight issued before hundred and fifty-two, if unexecuted, shall remain 24th October in force for more than six calendar months after the twenty-fourth day of October one thousand eight hundred and fifty-four, unless the same be renewed as hereinafter mentioned, but all such writs may be renewed from time to time in the same manner as writs issued after the twentyfourth day of October one thousand eight hundred and fifty-two may now be renewed under the "Common Law Procedure Act, 1852," section 124.

Before the Com. L. Proc. Act, 1852 (15 & 16 Vict. c. 76, s. 124), a writ of execution remained in force until executed, and did not abate by the death of the plaintiff: (Thoroughgood's case, Noy, 73; Cleve v. Veer, Cro. Car. 459; Ellis v. Griffith, 16 M. & W. 106; Jordan v. Binckes, 13 Q. B. 757; 18 L. J. 277, Q. B.

Courts may appoint sittings.

Amendment.

95. The Superior Courts may appoint and hold sittings either in banco, 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 twentyfourth of October.

96. It shall be lawful for the Superior Courts of Common 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.

This clause is similar to s. 222 of 15 & 16 Vict. c. 76, (Com. L. Proc. Act, 1852.) Under that section, the court has power to amend a pluries writ of summons issued more than five months before the 24th of October, 1852, by altering the indorsed date to the true date of the original writ, the object being to save the Statute of Limitations, but the court declined to amend the indorsement on the copy served on the defendants. (Cornish v. Hocking, 1 E. & B. 602; 22 L. J. 142, Q. B.) In an action against two defendants, an amendment before trial was made in the declaration, by striking out one of the defendants, the other being at liberty to plead in abatement the nonjoinder, and also to plead de novo; though a previous action for the same cause by and between the same parties had failed, and a similar amendment was refused therein on an application after the trial, the object of the present amendment being to save the Statute of Limitations: (Cowburn v. Wearing, 9 Ex. 207; 23 L. J. 81, Ex.) At Nisi Prius, in an action for goods sold and delivered, a count for work and labour was allowed to be added (Taylor v. Shaw, 21 L. T. 58, Q. B.); but the judge at Nisi Prius cannot strike out a count demurred to: (Thomas

v. Walters, 22 L. T. 200.) Where the declaration alleged a contract to serve the defendant as a commercial traveller, at a yearly salary, and that the defendant agreed to continue him in his employ for a whole year, and it alleged that the defendant discharged him, and it was proved that there was a usage in the trade, that commercial travellers should be dismissed with a three months' notice, the contract was held not proved, the condition as to the notice not being alleged in the declaration; but it was also held that plaintiff ought to have been allowed to amend at the trial: (Metzner v. Bolton, 23 L. J. 130, Ex.) In an action on a judgment after plea of nul tiel record, the declaration may be amended by substituting the true date of the judgment for a wrong one: (Noble v. Chapman, 23 L. J. 56, C. P.) Where pleadings are informal, and do not raise the issue intended, the court or judge is bound to amend; but when the pleadings do properly raise the issue, it is discretionary with the court to allow a different issue to be substituted for the one first raised; where in debt the issue joined was on the plea of nunquam indebitatus, the court refused to allow the defendant to substitute a plea of illegality, on the ground that the money was lent for purchasing tickets in a foreign lottery: (Ritchie v. Van Gelder, 18 Jur. 385; 23 L. T. Rep. 81.) It is not imperative on the judge at Nisi Prius to add a plea, whenever that is necessary to let in the defence proved at the trial, but it is left to his discretion to determine whether the amendment is necessary to do justice between the parties: (Bridger v. Gay, 23 L. T. 65, Q. B.) Where the judge at the trial allowed the declaration to be amended by inserting a claim for interest upon a mortgage deed, and after an objection to the stamp, on the ground that the sum secured was certain, the plaintiff abandoned the claim for interest, and the judge amended the record again, by striking out the claim inserted, the court refused to interfere with the discretion of the judge: (Morgan v. Pike, 23 L. J. 65, C. P.)

97. It shall be lawful for the judges of the General rules said courts, or any eight or more of them, of may be made by the whom the chiefs of each of the said courts shall judges. be three, from time to time 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

⚫ New forms

of writs and

other proceedings.

Interpretation of terms.

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.

98. Such new or altered writs and forms of proceedings may be issued, entered and taken, as may by the 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 hereinbefore 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.

99. In the construction of this act the word "court" 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.

at

Lancaster

Durham.

100. All the enactments and provisions of Provisions relating to this act not relating exclusively to the sittings Superior for trials of causes or issues in fact at London or Courts to apply to Court Westminster shall extend and apply to the Court of Common of Common Pleas at Lancaster and the Court of Pleas at Pleas at Durham, and actions and proceedings and Court therein respectively, subject to the following of Pleas at modifications: all the powers given by this act to the judges of the said Superior 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 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 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 to masters of

Courts to ap

of palatine

101. Provided always, that all the provisions of this act applicable to masters of the said courts Superior at Westminster, shall apply to the respective ply to proprothonotaries of the Court of Common Pleas at thonotaries Lancaster and Court of Pleas at Durham and courts. their 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 last-mentioned courts respectively the powers hereby given to the masters of the Superior Courts at Westminster.

102. Provided also, as to proceedings in ap- Court of