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No. 9.-ORDINANCE No. 9 of 1855. Ord. No. 9, 1855.
An Ordinance to amend the practice and mode of pleading in the
Supreme Court of these Islands, and to extend to the said Islands certain clauses of an Act of the Imperial Parliament, passed in the fifteenth and sixteenth years of Her Majesty's reign, entitled, “ An Act to amend the Process, Practice, and Mode of Pleading, in the Superior Courts of Common Law at Westminster, and in the Superior Courts of the Counties Palatine of Lancaster and Durham.” (Passed 24th Oct., 1855. Con
firmed 8th April, 1856.) PREAMBLE. HEREAS by an Act of the Imperial Parliament, made and
passed in the fifteenth and sixteenth years of Your Majesty's reign, known as “The Common Law Procedure Act, 1852,” alterations were made in the mode of practice and pleading in the Courts of Common Law at Westminster; and it is expedient that the
' practice and pleading in the Supreme Court of these islands, should,
as far as is practicable, be assimilated thereto; May it, &c. :What clauses 1. That the said Statute shall be in force within these islands, of Common with the exception of the following clauses, to wit :- The 1, 2, 5, Law Procedure 6, 9, 10, 11, 12, 13, 14, 16, 24, 26, 103, 104, 105, 106, 107, 108, Act of 1852, declared in
109, 110, 111, 112, 113, 114, 115, 120, 121, 122, 124, 125, 223, force.
227, 228, 229, 230, 231, 232, 233, 234, 235, 236,--and the clauses and schedules of the said Statute so declared to be in force, shall be
printed with this Ordinance for general information. Form of
II. That all personal actions brought in the Supreme Court of Writ of Sum
these islands, where the defendant is residing or is supposed to reside within the jurisdiction of the Court, shall be commenced by writ of summons in the form contained in the Schedule (A.) to the said Common Law Procedure Act, 1852, and marked No. 4. And in every such writ and copy thereof, the place of the residence or supposed residence of the party defendant, or wherein the defendant shall be, or shall be supposed to be, shall be mentioned, and such writ shall be issued and executed as is directed in the second section of Ordinance No. 9 of 1852, with respect to the writ of
summons therein mentioned. Original Writ III. That no criginal writ of summons shall be in force for more in force for
than six months, from the day of the date thereof, including the Six months only, but may
day of such date; but if necessary such writ may be renewed at be renewed,
any time before its expiration, for six months from the date of such renewal, and so on from time to time; and such writ shall be renewed by being again scaled with the seal of the Supreme Court, and signed by the Prothenotary, who shall add to such signature the day of the month and year of such renewal; and such writ so renewed shall remain in force and be available to prevent the operation of any Statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons. Provided that a precipe in such form as hath heretofore been required to be delivered, in order to obtain an alias writ, shall be filed by the plaintiff or his attorney with the Prothonotary, before the renewal of any writ, in manner before mentioned. Provided also, that any
writ of summons issued and in force at the time of the coming of No. 9. this Orlinance into operation shall not be determined by this Ord. No. 9, Ordinance, but may be renewed, if necessary, at any time before 1855. the period fixed for the expiration thereof, in manner hereinbefore mentioned.
IV. That the production of a writ of summons, renewed in the Evidence of manner hereinbefore set forth, shall be sufficient evidence of such renewal. renewal and of the date of the issue of the original writ of summons.
V. That any writ of execution issued after this Ordinance shall Writs of Execuhave come into operation, if unexecuted, shall not remain in force for tion in force for
how more than one year from the date of the teste thereof, and may
renewed. renewed at any time before the expiration of the said period : and such renewed writ may in like manner continue in force for a year, and may in like manner be renewed from time to time. And such writs shall be renewed by a notice in writing of such renewal, signed by the party or his attorney, and bearing the seal of the Court and the signature of the Prothonotary, who shall add to such signature the day of the month and year of such renewal; and such notice shall be delivered to the Provost Marshal; and every writ so renewed shall take effect and have priority according to the time of the original delivery thereof.
VI. That the production of the notice renewing a writ of execution shall be sufficient evidence of its having been renewed.
VII. That all rules to be framed by the Judge of the Supreme Rules of Court Court for the regulation of the same, under the provisions of this or to be approved of any other Ordinance of these islands, shall be submitted for
of by the Legis
lative Council. the confirmation of the Legislative Council of these islands, before they shall become operative and binding on any of the parties concerned.
VIII. And whereas many of the modes of proceeding, services, Costs. and acts for which fees are now allowed by law, have been abolished by this Ordinance without other fees in lieu thereof having been established; Be it ordained, That it shall be lawful for the Judge of the said Court, to allow in taxation of costs, reasonable fees for the performance of services to which fees may not be specifically attached by any Ordinance of these islands.
IX. That the following clauses and parts of clauses of Ordi- Parts of Ordinance No. 9 of 1852, shall be repealed, viz. :-80 much of the nance No. 9 of second clause as relates to the form of writs of summons, and the
1852 repealed. indorsements thereon: Also so much of the fifth clause as refers to the notice to be indorsed on writs of summons: Also the whole of the sixth clause with reference to the duration and renewal of writs of summons: Also the whole of the seventeenth clause with reference to the mode of entering an appearance.
X. That throughout the clauses of the Statute aforesaid, where- Explanation of ever the words “ Court,” or “ Courts of Law at Westminster,” shall terms. occur, they shall be deemed to apply to the Supreme Court of these islands : wherever the words“ Chief Justice,”
“ Judge, "Judges" or the like shall occur, they shall be deemed to apply to the Judge of the said Court: the word “Master” shall also be deemed to apply to the Prothonotary of the same; and the word * Act” shall be held to apply to this Ordinance. That wherever in any Ordinance of these islands, the words “Superior Court” shall occur, the same shall be understood to refer to the Supreme Court of these islands. And whereas, in describing or referring
No. 9. to any person or thing, any word importing the singular number Ord. No. 9, or masculine gender, is used, the same shall be held to include 1855. several persons or things, and females as well as males, and bodies
corporate as well as individuals, unless it be otherwise provided,
Clauses of Clauses and Schedules of Imperial Statute 15 and 16 Vict., declared
in force by Ordinance No. 9, 1855.
III. It shall not be necessary to mention any form or cause of in force.
action in any writ of summons, or in any notice of writ of Writ to state
summons, issued under the authority of this Act. Names of all IV. Every writ of summons shall contain the names of all the Defendants, defendants, and shall not contain the name or names of any defendand for only
ant or defendants in more actions than one. one Action. Attorney on
VII. Every attorney whose name shall be indorsed on any writ Demand to
issued by authority of this Act shall, on demand in writing, made declare by or on behalf of any defendant, declare forthwith whether such whether Writ
writ has been issued by him or with his authority or privity; and issued by his
if he shall answer in the affirmative, then he shall also, in case the authority, and to declare Court or a Judge shall so order and direct, declare in writing, Name and within a time to be allowed by such Court or Judge, the profession, Abode of his occupation, or quality, and place of abode of the plaintiff
, on pain Client it ordered.
of being guilty of a contempt of the Court from which such writ
shall appear to have been issued; and if such attorney shall If Writ issued without autho
declare that the writ was not issued by him, or with his authority rity of Attorney, or privity, all proceedings upon the same shall be stayed, and no Proceedings to further proceedings shall be taken thereupon without leave of the be stayed. Court or a Judge. Indorsement
VIII. Upon the writ and copy of any writ served for the payof Debt and ment of any debt the amount of the debt shall be stated, and the Costs on Writ amount of what the plaintiff's attorney claims for the costs of such and Copy of
writ, copy, and service, and attendance to receive debt and costs, Writ for a Debt with notice that
and it shall be further stated that upon payment thereof within Proceedings four days to the plaintiff or his attorney, further proceedings will will be stayed be stayed; which indorsement shall be written or printed in the on payment following form or to the like effect :within four days. “The plaintiff claims £
for debt, and £
for costs, and if the amount
disallowed, the plaintiff's attorney shall pay the costs of taxation. Indorsement XV. The person serving the writ of summons shall and he is of service to hereby required, within three days at least after such service, to be made.
indorse on the writ the day of the month and week of the service
XVII. The service of the writ of summons, wherever it
No. 9. be
may practicable, shall, as heretofore, be personal; but it shall be lawful Clauses of for the plaintiff to apply from time to time, on affidavit to the Act of Parl. Court out of which the writ of summons issued, or to a Judge; 15 & 16 Vic. and in case it shall appear to such Court or Judge that reasonable c. 76,
in force. efforts have been made to effect personal service, and either that the writ has come to the knowledge of the defendant, or that he Proceedings wilfully evades service of the same, and has not appeared thereto, where personal it shall be lawful for such Court or Judge to order that the plaintiff service cannot be at liberty to proceed as if personal service had been effected,
be effected, but
Defendant subject to such conditions as to the Court or Judge may seem knows of the fit.
Writ, and erades service. * XVIII. In case any defendant, being a British subject, is resid- As to Actions ing out of the jurisdiction of the said superior Courts in any place against British except in Scotland or Ireland, it shall be lawful for the plaintiff to subjects residing issue a writ of summons in the form contained in the Schedule (A.) to this Act ann inexed, marked No. 2, which writ shall bear the in- of Superior
jurisdiction dorsement contained in the said form, purporting that such writ is Courts. for service out of the jurisdiction of the said superior Courts; and the time for appearance by the defendant to such writ shall be regulated by the distance from England of the place where the defendant is residing; and it shall be lawful for the Court or Judge, upon being satisfied by affidavit that there is a cause of action, which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction, and that the writ was personally served upon the defendant, or that reasonable efforts were made to effect personal service thereof upon the defendant, and that it came to his knowledge, and either that the defendant wilfully neglects to appear to such writ, or that he is living out of the jurisdiction of the said Courts in order to defeat and delay his creditors, to direct from time to time that the plaintiff shall be at liberty to proceed in the action in such manner and subject to such conditions as to such Court or Judge may seem fit, having regard to the time allowed for the defendant to appear being reasonable, and to the other circumstances of the case : Provided always, that the plaintiff shall and he is hereby required to prove the amount of the debt or damages claimed by him in such action, either before a jury upon a writ of inquiry, or before one of the Masters of the said superior Courts in the manner hereinafter provided, according to
the nature of the case, as such Court or Judge may direct; and the • making such proof shall be a condition precedent to his obtaining judgment. *XIX. In any action against a person residing out of the juris- As to Actions diction of the said Courts, and not being a British subject, the like against proceedings may be taken as against a British subject resident out Foreigners re
siding out of of the jurisdiction, save, that in lieu of the form of writ of summons
the Jurisdiction in the Schedule (A.) to the said Act of Parliament annexed marked of Superior No. 2, the Plaintiff shall issue a writ of summons according to the Courts. form contained in the said Schedule (A.), marked No. 3, and shall in manner aforesaid serve a notice of such last-mentioned writ upon the defendant therein mentioned, which notice shall be in the form contained in the said Schedule, also marked No. 3; and such service shall be of the same force and effect as the service of the writ of summons in any action against a British subject resident abroad, and by leave of the Court or a Judge, upon their or his being satis
• See Ordinance No. 3, 1857, pages 172, 173.
No. 9. fied by affidavit as aforesaid, the like proceedings may be had and Clauses of taken thereupon. Act of Parl. XX. If the plaintiff or his attorney shall omit to insert in or 15 & 16 Vic. indorse on any writ or copy thereof any of the matters required by
c. 76, this Act to be inserted therein or indorsed thereon, such writ or in force. copy thereof shall not on that account be held void, but it may be
set aside as irregular, or amended, upon application to be made to Omission to insert or in
the Court out of which the same shall issue, or to a Judge; and dorse matters such amendment may be made, upon any application to set aside in or ou Writ the writ, upon such terms as to the Court or Judge may seem fit. not to nullify it.
XXI. If either of the forms of writ of summons contained in the Substitution by mistake or
Schedule (A.) to this Act annexed, and marked respectively Nos. inadvertence 1, 2, and 3, shall by mistake or inadvertence be substituted for any of one Form other of them, such mistake or inadvertence shall not be an objecof Writ for
tion to the writ or any other proceeding in such action, but the another may be by Judge
writ may, upon an ex parte application to a Judge, whether before without Costs. or after any application to set aside such writ or any proceeding
thereon, and whether the same or notice thereof shall have been
served or not, be amended by such Judge without costs. Writs for ser- XXII. A writ for service within the jurisdiction may be issued vice within and and marked as a concurrent writ with one for service out of the without Juris
jurisdiction, and a writ for service out of the jurisdiction may be be concurrent,
issued and marked as a concurrent writ with one for service within and vice versa. the jurisdiction. Affidavits in XXIII. Any affidavit for the purpose of enabling the Court or a certain Cases Judge to direct proceedings to be taken against a defendant residing may be sworn
out of the jurisdiction of the said Courts may be sworn before any before a Consul,
Consul-General, Consul, Vice Consul, or Consular Agent for the time being, appointed by Her Majesty at any Foreign Port or Place; and every affidavit so sworn by virtue of this Act may be used and shall be admitted in evidence, saving all just exceptions, provided it purport to be signed by such Consul-General, Consul, Vice Consul, or Consular Agent, upon proof of the official character and signature of the person appearing to have signed the same : Provided always, that if any person shall forge the signature of any such affidavit, or shall use or tender in evidence any
such affidavit with a false or counterfeit signature thereto, knowing the same to be false or counterfeit, he shall be guilty of felony, and shall upon conviction be liable to transportation for seven years, or to imprisonment for any term not exceeding three years, nor less than one year, with hard labour; and every person who shall be charged with committing any felony under this Act may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charged to have been committed, in the county or place in which he shall be apprehended or be in custody; and every accessory before or after the fact to any such offence
be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charged to have been committed in any county or place in which the principal offender may be tried : Provided also, that if any person shall wilfully and corruptly make a false affidavit before such Consul-General, Consul, Vice Consul, or Consular agent, every person so offending shall be deemed and taken to be guilty of perjury, in like manner as if such false affidavit had been made in England before competent authority, and shall and may be dealt with, indicted, tried, and, if convicted,
• See Ordinance No. 3, 1857, pages 172, 173.