an enumeration of instances in which equity gives relief, and which may now also be had at law by virtue of this section. See also the chapter on "Injunction," post.

80. The writ of summons in such action shall be in the same form as the writ of summons in any personal action; but on every such writ and copy thereof there shall be indorsed 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.

81. The proceedings in such action shall be the 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 hereinbefore 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 enforced by attachment by the court, or, when such courts shall not be sitting, by a judge.

82. It shall be lawful for the plaintiff at any time after the commencement of the action, and whether before or 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.

83. It shall be lawful for the defendant or Equitable plaintiff in replevin in any cause in any of the defence may be pleaded. 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.

See the Common Law Commissioners' Report, tit. "Conflicting Rules of Law and Equity," supra, p. 45, and also the chapter on "Equitable Defences."

judgment.

84. Any such matter which, if it arose before Equitable or during the time for pleading, would be an defence after answer to the 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.

As to auditâ querelâ, see Chit. Arch. 474, 8th edit.

85. The plaintiff may reply, in answer to any Equitable plea of the defendant, facts which avoid such replication. plea upon equitable grounds: provided that such replication shall begin with the words "For replication on equitable grounds," or words to the like effect.

strike out

86. Provided always, that in case it shall Court or appear to the court, or any judge thereof, that judge may any such equitable plea or equitable replica- equitable tion cannot be dealt with by a court of law so as plea or reto do justice between the parties, it shall be lawful for such court or judge to order the same

piication.

Actions on

ments.

to be struck out, on such terms as to costs and otherwise as to such court or judge may seem reasonable.

87. In case of any action founded upon a bill lost instru- of exchange or other negotiable instrument, it shall be lawful for 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.

Jurisdiction under Ship

Before this section, the loss of a negotiable bill was a defence to an action upon it (Crowe v. Clay, 8 Exch. 295): and the plaintiff's only remedy was by bill in equity, the plaintiff being obliged to give the defendant an indemnity.

88. The Superior Courts or any judge thereof owners' Act. may, upon summary application, by rule or order, exercise such 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, be exercised by any Court of Equity.

53 Geo. 3, c. 159.

The 53 Geo. 3, c. 159, s. 1, limits the liability of owners of ships for loss or damage to cargo, arising "by reason of any act, neglect, matter, or thing done, omitted, or occasioned without the fault or privity of such owner." And by sect. 7, "if several persons shall suffer any loss or damage in or to their goods, wares, merchandizes, ships, or otherwise, by any means for which the responsibility of any owner or owners is limited by this act (53 Geo. 3) as aforesaid, and the value of the ship or vessel, with all her appurtenances, and the amount of the freight estimated as therein mentioned, shall not be sufficient to make full compensation to all and every the person suffering such loss and damage it shall be lawful in such case for the persons liable for such loss or damage, or any of them, on behalf of himself and the other owners of the ship, to exhibit a bill in equity, against all persons who shall have brought any

action, and all other persons who shall claim to be entitled to
any recompense for any loss or damage happening by the same
accident, &c., or on the same occasion, to ascertain the value
of the ship and freight, and for payment or distribution thereof
rateably, amongst the several persons claiming recompense as
aforesaid, in proportion to the amount of the several losses or
damages sustained by such persons, or claiming recompense as
aforesaid, &c., according to the rules of equity, and as the case
may require. The act requires an affidavit by the plaintiff
of no collusion, and that the bill is filed for justice only, and
to obtain the benefit of the act; that the persons named as
defendants are all the persons claiming to be entitled to such
recompense, and that they all claim such recompense and to be
entitled to proportions of the value of such ship and freight,
and are the only persons who do so claim, and that the amount
of the value of such ship and freight does not exceed a sum to
be specified in such affidavit, and that the several claims made
by the defendants exceed the amount of the value of such ship
and freight. The plaintiff is then to obtain an order for liberty
to pay into court the value of such ship and freight, and unless
such money be paid into court, or security given for the same
with special leave of the court for that purpose, within one
month after the filing of the bill, the bill is to be dismissed
without any motion for that purpose. In case such bill shall
be dismissed after such value has been paid into court, or secu-
rity given as aforesaid, the court is to direct the money so paid
into court, or received under such security, to be paid to the
several defendants who shall appear to the court to be entitled
to proportions thereof, such payments, however, to be without
prejudice to any action by any other person, not party to such
bill for any such loss or damage. There are provisions in the
act for payment of a further sum in case the true amount of
value of the ship, &c., has not been paid into court, &c., and
also for authorising the court to take such measures as shall
seem just, for ascertaining the value of the ship and freight:
(see notes upon this statute, 3 Chit. St. 1039, by Welsby and
Beavan.)

dence.

89. Any person who shall, upon any examina- False evition upon oath or affirmation, or in any affidavit in proceedings under this act, wilfully and corruptly give false evidence, or wilfully and corruptly

K

Execution to

fix bail.

Scire facias

on judgment

futuro.

swear or affirm anything which shall be false, being convicted thereof, shall be liable to the penalties of wilful and corrupt perjury.

90. Writs of execution to fix bail may be tested and returnable in vacation.

See Pract. Rules Hil. T. 1853, r. 72, 74, and 75. Chit. Arch. 540, 798.

91. Proceedings against executors upon a of assets in judgment of assets in futuro may be had and taken in the manner provided by "The Common Law Procedure Act, 1852," as to writs of revivor.

To compel continuance

ment of ac

tion in case of death.

See Com. L. Proc. Act. 1852 (15 & 16 Vict. c. 76, ss. 131, 133, 134.)

92. Where an action would, but for the proor abaudon- visions of "The Common Law Procedure Act, 1852," have abated by reason of the death of either party, and in which the proceedings may be revived and continued under that act, the 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 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.

See Com. L. Proc. Act, 1852, 15 & 16 Vict. c. 76, ss. 40; 135 to 142; 161 to 167; 190 to 199.