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No. 9.

Ord. No. 9, 1855.

to any person or thing, any word importing the singular number
or masculine gender, is used, the same shall be held to include
several persons or things, and females as well as males, and bodies
corporate as well as individuals, unless it be otherwise provided,
or there be something in the subject or context repugnant to such
construction.

I

Clauses of Clauses and Schedules of Imperial Statute 15 and 16 Vict., declared in force by Ordinance No. 9, 1855.

Act of Parl.

15 & 16 Vic.
c. 76,
in force.

Writ to state Names of all Defendants, and for only one Action. Attorney on Demand to declare

whether Writ issued by his authority, and to declare Name and

Abode of his Client if ordered.

If Writ issued

without autho

rity of Attorney,
Proceedings to
be stayed.
Indorsement
of Debt and

Costs on Writ
and Copy of
Writ for a Debt

with notice that Proceedings will be stayed on payment within four days.

Indorsement

of service to be made.

III. It shall not be necessary to mention any form or cause of action in any writ of summons, or in any notice of writ of summons, issued under the authority of this Act.

IV. Every writ of summons shall contain the names of all the defendants, and shall not contain the name or names of any defendant or defendants in more actions than one.

VII. Every attorney whose name shall be indorsed on any writ issued by authority of this Act shall, on demand in writing, made by or on behalf of any defendant, declare forthwith whether such writ has been issued by him or with his authority or privity; and if he shall answer in the affirmative, then he shall also, in case the Court or a Judge shall so order and direct, declare in writing, within a time to be allowed by such Court or Judge, the profession, occupation, or quality, and place of abode of the plaintiff, on pain of being guilty of a contempt of the Court from which such writ shall appear to have been issued; and if such attorney shall declare that the writ was not issued by him, or with his authority or privity, all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the Court or a Judge.

VIII. Upon the writ and copy of any writ served for the payment of any debt the amount of the debt shall be stated, and the amount of what the plaintiff's attorney claims for the costs of such writ, copy, and service, and attendance to receive debt and costs, and it shall be further stated that upon payment thereof within four days to the plaintiff or his attorney, further proceedings will be stayed; which indorsement shall be written or printed in the following form or to the like effect:

"The plaintiff claims £

for debt,
and £
for costs, and if the amount
thereof be paid to the plaintiff or to his Attorney within four
days from the service hereof, further proceedings will be
stayed."

But the defendant shall be at liberty, notwithstanding such pay-
ment, to have the costs taxed, and if more than one sixth shall be
disallowed, the plaintiff's attorney shall pay the costs of taxation.

XV. The person serving the writ of summons shall and he is
hereby required, within three days at least after such service, to
indorse on the writ the day of the month and week of the service
thereof, otherwise the plaintiff shall not be at liberty, in case of
nonappearance, to proceed under this Act; and every affidavit of
service of such writ shall mention the day on which such indorse-
ment was made.

fit.

No. 9. Clauses of Act of Parl.

15 & 16 Vic. c. 76,

in force.

Writ, and evades service.

against British subjects residing

out of the of Superior jurisdiction Courts.

XVII. The service of the writ of summons, wherever it may be practicable, shall, as heretofore, be personal; but it shall be lawful for the plaintiff to apply from time to time, on affidavit to the Court out of which the writ of summons issued, or to a Judge; and in case it shall appear to such Court or Judge that reasonable 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 * 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 except in Scotland or Ireland, it shall be lawful for the plaintiff to issue a writ of summons in the form contained in the Schedule (A.) to this Act annexed, marked No. 2, which writ shall bear the indorsement contained in the said form, purporting that such writ is 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 jurisdiction of the said Courts, and not being a British subject, the like proceedings may be taken as against a British subject resident out of the jurisdiction, save, that in lieu of the form of writ of summons in the Schedule (A.) to the said Act of Parliament annexed marked No. 2, the Plaintiff shall issue a writ of summons according to the 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, 178.

As to Actions against Foreigners residing out of the Jurisdiction

of Superior Courts.

No. 9. Clauses of Act of Parl. 15 & 16 Vic.

c. 76, in force.

Omission to
insert or in-
dorse matters
in or on Writ

not to nullify it.
Substitution
by mistake or
inadvertence
of one Form
of Writ for

another may be by Judge without Costs.

Writs for service within and

without Juris

diction may
be concurrent,

and vice versa.

Affidavits in certain Cases may be sworn

before a Consul.

fied by affidavit as aforesaid, the like proceedings may be had and taken thereupon.

XX. If the plaintiff or his attorney shall omit to insert in or indorse on any writ or copy thereof any of the matters required by this Act to be inserted therein or indorsed thereon, such writ or 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 the Court out of which the same shall issue, or to a Judge; and such amendment may be made, upon any application to set aside the writ, upon such terms as to the Court or Judge may seem fit. XXI. If either of the forms of writ of summons contained in the Schedule (A.) to this Act annexed, and marked respectively Nos. 1, 2, and 3, shall by mistake or inadvertence be substituted for any other of them, such mistake or inadvertence shall not be an objection to the writ or any other proceeding in such action, but the writ may, upon an ex parte application to a Judge, whether before 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.

XXII. A writ for service within the jurisdiction may be issued and marked as a concurrent writ with one for service out of the

jurisdiction, and a writ for service out of the jurisdiction may be

issued and marked as a concurrent writ with one for service within the jurisdiction.

XXIII. Any affidavit for the purpose of enabling the Court or a Judge to direct proceedings to be taken against a defendant residing out of the jurisdiction of the said Courts may be sworn before any 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 may 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.

sentenced, and his offence may be laid and charged to have been committed, in any county or place in which he shall be apprehended or be in custody, as if his offence had been actually committed in that county or place.

No. 9.

Clauses of Act of Parl. 15 & 16 Vic. c. 76,

in force.

dated Demands

may be made on

the Writ.

XXV. In all cases where the defendant resides within the jurisdiction of the Court, and the claim is for a debt or liquidated demand in money, with or without interest, arising upon a contract, express or implied, as, for instance, on a bill of exchange, promis- ment of the Special Indorsesory note, or cheque, or other simple contract debt, or on a bond particulars of or contract under seal for payment of a liquidated amount of money, Debts or liquior on a statute where the sum sought to be recovered is a fixed sum of money, or in the nature of a debt, or on a guarantee, whether under seal or not, where the claim against the principal is in respect of such debt or liquidated demand, bill, cheque, or note, the plaintiff shall be at liberty to make upon the writ of summons and copy thereof a special indorsement of the particulars of his claim, in the form contained in the Schedule (A.) to this Act annexed, marked No. 4, or to the like effect; and when a writ of summons has been indorsed in the special form hereinbefore mentioned, the indorsement shall be considered as particulars of demand, and no further or other particulars of demand need be delivered, unless ordered by the Court or a Judge.

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XXVII. In case of nonappearance by the defendant, where the writ of summons is indorsed in the special form herein before vided, it shall and may be lawful for the plaintiff, on filing an affidavit of personal service of the writ of summons, or a Judge's order for leave to proceed under the provisions of this Act, and a copy of the writ of summons, at once to sign final judgment in the form contained in the Schedule (A.) to this Act annexed, marked No. 5 (on which judgment no proceeding in error shall lie), for any sum not exceeding the sum indorsed on the writ, together with interest at the rate specified, if any, to the date of the judgment, and a sum for costs (to be fixed by the Masters of the said Superior Courts, or any three of them, subject to the approval of the Judges thereof, or any eight of them, of whom the Lord Chief Justices and the Lord Chief Baron shall be three), unless the plaintiff claim more than such fixed sum, in which case the costs shall be taxed in the ordinary way; and the plaintiff may upon such judgment issue execution at the expiration of eight days from the last day for appearance, and not before: Provided always, that it shall be lawful for the Court or a Judge, either before or after final judgment, to let in the defendant to defend upon an application, supported by satisfactory affidavits accounting for the nonappearance, and disclosing a defence upon the merits.

Special Indorsement to stand for particulars of

demand.

Final Judg

ment upon

Writ specially

indorsed in

default of Ap

pearance.

where the Writ is not indorsed

XXVIII. In case of such nonappearance, where the writ of Judgment for summons is not indorsed in the special form hereinbefore provided, Nonappearance it shall and may be lawful for the plaintiff, on filing an affidavit of personal service of the writ of summons, or a Judge's order for in the special leave to proceed under the provisions of this Act, and a copy of Form. the writ of summons, to file a declaration, indorsed with a notice to plead in eight days, and to sign judgment by default at the expiration of the time to plead, so indorsed as aforesaid; and in the event of no plea being delivered, where the cause of action mentioned in the declaration is for any of the claims which might have been inserted in the special indorsement on the writ of summons

No. 9.

Clauses of Act of Parl.

15 & 16 Vic. c. 76,

in force.

Appearance to
be entered
at any time
before Judg-

ment.

Appearance by the Defendant in person to give an Address

at which Proceedings may be served.

Mode of
Appearance
to Writ of
Summons.

Proceedings mentioned in Writ or Notice

herein before provided, and the amount claimed is indorsed on the writ of summons, the judgment shall be final, and execution may issue for an amount not exceeding the amount indorsed on the writ of summons, with interest at the rate specified, if any, and the sum fixed by the Masters for costs, as hereinbefore mentioned, unless the plaintiff claim more, in which case the costs shall be taxed in the ordinary way: Provided always, that in such case the plaintiff shall not be entitled to more costs than if he had made such special indorsement, and signed judgment upon nonappearance.

XXIX. The defendant may appear at any time before judgment, and if he appear after the time specified either in the writ of summons, or in any rule or order to proceed as if personal service had been effected, he shall, after notice of such appearance to the plaintiff or his attorney, as the case may be, be in the same position as to pleadings and other proceedings in the action as if he had appeared in time: Provided always, that a defendant appearing after the time appointed by the writ shall not be entitled to any further time for pleading or any other proceeding than if he had appeared within such appointed time.

XXX. Every appearance by the defendant in person shall give an address, at which it shall be sufficient to leave all pleadings and other proceedings not requiring personal service; and if such address be not given the appearance shall not be received; and if an address so given shall be illusory or fictitious, the appearance shall be irregular, and may be set aside by the Court or a Judge, and the plaintiff may be permitted to proceed by sticking up the proceedings in the Master's office without further service.

XXXI. The mode of appearance to every such writ of summons, or under the authority of this Act, shall be by delivering a memorandum in writing according to the following form, or to the like effect:

"A., plaintiff, against C. D.

or

against C. D. and another,

or

against C. D. and others.

The defendant C. D. ap

pears in person.
E. F., attorney for C. D.
appears for him.

[If the defendant appears in person here give his address.]

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Such memorandum to be delivered to the proper officer or person in that behalf, and to be dated on the day of the delivery thereof.

XXXII. All such proceedings as are mentioned in any writ or notice issued under this Act shall and may be had and taken in may be had and default of a defendant's appearance.

taken. Proceedings where only some of the Defendants appear to a Writ specially indorsed.

XXXIII. In any action brought against two or more defendants, where the writ of summons is indorsed in the special form hereinbefore provided, if one or more of such defendants only shall appear, and another or others of them shall not appear, it shall and may be lawful for the plaintiff to sign judgment against such defendant or defendants only as shall not have appeared, and, before declaration against the other defendant or defendants, to issue execution thereupon, in which case he shall be taken to have abandoned his action against the defendant or defendants who shall have appeared; or the plaintiff may, before issuing such execution, declare against such defendant or defendants as shall have appeared, stating

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