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sentenced, and his offence may be laid and charged to have been No. 9. committed, in any county or place in which he shall be apprehended Clauses of or be in custody, as if his offence had been actually committed in Act of Parl. that county or place.
15 & 16 Vic. XXV. In all cases where the defendant resides within the jurisdiction of the Court, and the claim is for a debt or liquidated de- in force. mand in money, with or without interest, arising upon a contract, express or implied, as, for instance, on a bill of exchange, promis- Special Indorse
ment of the sory 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
dated Demands of money, or in the nature of a debt, or on a guarantee, whether may be made on
the Writ. 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 Special Inhas been indorsed in the special form hereinbefore mentioned, the dorsement to
stand for parindorsement shall be considered as particulars of demand, and no
ticulars of further or other particulars of demand need be delivered, unless demand. ordered by the Court or a Judge.
XXVII. In case of nonappearance by the defendant, where the Final Judg. writ of summons is indorsed in the special form hereinbefore provided, it shall and may be lawful for the plaintiff, on filing an
indorsed in affidavit of personal service of the writ of summons, or a Judge's default of Aporder 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.
XXVIII. In case of such nonappearance, where the writ of Judgment for summons is not indorsed in the special form herein before provided, Nonappearance it shall and may be lawful for the plaintiff, on filing an affidavit of
is not indorsed 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
where the Writ ment.
No. 9. hereinbefore provided, and the amount claimed is indorsed on the Clauses of writ of summons, the judgment shall be final, and execution may Act of Parl. issue for an amount not exceeding the amount indorsed on the 15 & 16 Vic. writ of summons, with interest at the rate specified, if any, and the c. 76,
sum fixed by the Masters for costs, as herein before mentioned, unin force. less 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. Appearance to XXIX. The defendant may appear at any time before judgment, be entered
and if he appear after the time specified either in the writ of sumat any time before Judg
mons, 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. Appearance by
XXX. Every appearance by the defendant in person shall give the Defendant in person to
an address, at which it shall be sufficient to leave all pleadings and give an Address other proceedings not requiring personal service; and if such adat which Pro- dress be not given the appearance shall not be received ; and if an ceedings may
address so given shall be illusory or fictitious, the appearance shall be served.
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 proceed
ings in the Master's office without further service. Mode of
XXXI. The mode of appearance to every such writ of summons, Appearance
or under the authority of this Act, shall be by delivering a memoto Writ of Summons.
randum in writing according to the following form, or to the like
The defendant C. D. ap
pears in person.
E. F., attorney for C. D.
in that behalf, and to be dated on the day of the delivery thereof. Proceedings XXXII. All such proceedings as are mentioned in any writ or mentioned in
notice issued under this Act shall and may be had and taken in Writ or Notice
default of a defendant's appearance. may be had and taken.
XXXIII. In any action brought against two or more defendants, Proceedings where the writ of summons is indorsed in the special form hereinwhere only before provided, if one or more of such defendants only shall apDefendants
pear, and another or others of them shall not appear, it shall and
may be lawful for the plaintiff to sign judgment against such deappear to a Writ specially fendant or defendants only as shall not have appeared, and, before indorsed. declaration against the other defendant or defendants, to issue exe
cution 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
some of the
by way of suggestion, the judgment obtained against the other de- No. 9. fendant or defendants who shall not have appeared, in which case Clauses of the judgment so obtained against the defendant or defendants who Act of Parl. shall not have appeared shall operate and take effect in like manner 15 & 16 Vic. as a judgment by default obtained before the commencement of this c. 76, Act against one or more of the several defendants in an action of in force. debt before the commencement of this Act.
And with respect to the joinder of parties to actions, be it enacted Joinder of as follows:
parties. XXXIV. It shall and may be lawful for the Court or a Judge, Nonjoinder and at any time before the trial of any cause, to order that any person Misjoinder of
Plaintitts may or persons, not joined as plaintiff or plaintiffs in such cause,
be amended be so joined ; or that any person or persons, originally joined as before Trial. plaintiff or plaintiffs, shall be struck out from such cause, if it shall appear to such Court or Judge that injustice will not be done by such amendment, and that the person or persons, to be added as aforesaid, consent, either in person or by writing, under his, her, or their hands, to be so joined, or that the person or persons, to be struck out as aforesaid, were originally introduced without his, her, or their consent, or that such person or persons consent in manner aforesaid to be so struck out; and such amendment shall be made upon such terms as to the amendment of the pleadings (if any), postponement of the trial and otherwise, as the Court or Judge by whom such amendment is made shall think proper; and when any such amendment shall have been made, the liability of any person or persons, who shall have been added as co-plaintiff or co-plaintiffs, shall, subject to any terms imposed as aforesaid, be the same as if such person or persons had been originally joined in such cause.
XXXV. In case it shall appear at the trial of any action that Nonjoinder and there has been a misjoinder of plaintiffs, or that some person or Misjoinder of persons, not joined as plaintiff or plaintiffs, ought to have been
Plaintiff's may joined, and the defendant shall not, at or before the time of plead
the Trial, as ing, have given notice in writing that he objects to such nonjoinder, in cases of specifying therein the name or names of such person or persons, Amendments such misjoinder or nonjoinder may be amended, as a variance, at of Variances the trial by any Court of Record holding plea in civil actions, and under 3 4.4
. 42. by any Judge sitting at Nisi Prius, or other presiding officer, in like manner as to the mode of amendment, and proceedings consequent thereon, or as near thereto as the circumstances of the case will admit, as in the case of amendments of variances under an Act of Parliament passed in the session of Parliament, held in the third and fourth years of the reign of his late Majesty King William the Fourth, entituled “An Act for the further amendment of the Law, and the better advancement of Justice,” if it shall appear to such Court, or Judge, or other presiding officer, that such misjoinder or nonjoinder was not for the purpose of obtaining an undue advantage, and that injustice will not be done by such amendment, and that the person or persons to be added as aforesaid, consent, either in person or by writing, under his, her, or their hands, to be so joined, or that the person or persons to be struck out as aforesaid were originally introduced without his, her, or their consent, or that such person or persons consent, in manner aforesaid, to be so struck out; and such amendment shall be made upon such terms as the
Court or Judge, or other presiding officer, by whom such amend• ment is made, shall think proper; and when any such amendment
be amended at may be
No. 9. shall have been made, the liability of any person or persons, who Clauses of shall have been added as co-plaintiff or co-plaintiffs, shall, subject Act of Parl. to any terms imposed as aforesaid, be the same as if such person or 15 & 16 Vic. persons had been originally joined in such action.
c. 76, XXXVI. In case such notice be given, or any plea in abatement in force. of nonjoinder of a person or persons as co-plaintiff or co-plaintiffs
in cases where such plea in abatement may be pleaded, be pleaded Upon notice or Plea of by the defendant, the plaintiff shall be at liberty, without any order, Nonjoinder of to amend the writ and other proceedings before plea, by adding the Plaintiffs
, Pro- name or names of the person or persons named in such notice or ceedings may
plea in abatement, and to proceed in the action without any further be amended.
appearance, on payment of the costs of, and occasioned by such amendment only, and in such case the defendant shall be at liberty
to plead de novo. Misjoinder of XXXVII, It shall and may be lawful for the Court or a Judge Defendants in the case of the joinder of too many defendants in any action on
contract, at any time before the trial of such cause, to order that amended before or at
the name or names of one or more of such defendants be struck Trial,
out, if it shall appear to such Court or Judge that injustice will not be done by such amendment; and the amendment shall be made upon such terms as the Court or Judge, by whom such amendment is made shall think proper; and in case it shall appear at the trial of any action on contract that there has been a misjoinder of defendants, such misjoinder may be amended, as a variance, at the trial, in like manner as the misjoinder of plaintiffs has been hereinbefore directed to be amended, and upon such terms as the Court or Judge, or other presiding officer, by whom such amendment is
made, shall think proper. Upon Plea in XXXVIII. In any action on contract where the nonjoinder of Abatement for Nonjoinder
any person or persons as a co-defendant or co-defendants has been of Defendants,
pleaded in abatement, the plaintiff shall be at liberty, without any Proceedings
order, to amend the writ of summons and the declaration, by adding
the name or names of the person or persons named in such plea in amended. abatement as joint contractors, and to serve the amended writ upon
the person or persons so named in such plea in abatement, and to proceed against the original defendant or defendants, and the person or persons so named in such plea in abatement: Provided that the date of such amendment shall, as between the person or persons so named in such plea in abatement and the plaintiff
, be considered for all purposes as the commencement of the action. Provision in XXXIX. In all cases after such plea in abatement and amendthe case of ment, if it shall appear upon the trial of the action that the
or persons so named in such plea in abatement was or were jointly Proceedings against the
liable with the original defendant or defendants, the original defendPersons named ant or defendants shall be entitled as against the plaintiff to the in a Plea in costs of such plea in abatement and amendment; but if at such Abatement for trial it shall appear that the original defendant or any of the original Nonjoinder of Defendants.
defendants is or are liable, but that one or more of the persons named in such plea in abatement is or are not liable as a contracting party or parties, the plaintiff shall nevertheless be entitled to judgment against the other defendant or defendants who shall appear to be liable ; and every defendant who is not so liable shall have judgment, and shall be entitled to his costs as against the plaintiff
, who shall be allowed the same, together with the costs of the plea in abatement and amendment, as costs in the cause against
the original defendant or defendants who shall have so pleaded No. 9. in abatement the nonjoinder of such person : Provided that Clauses of any such defendant who shall have so pleaded in abatement Act of Parl. shall be at liberty on the trial to adduce evidence of the 15 & 16 Vic. liability of the defendants named by him in such plea in abate- c. 76, ment.
in force. XL. In any action brought by a man and his wife for an injury Joinder of done to the wife, in respect of which she is necessarily joined as claims by co-plaintiff, it shall be lawful for the husband to add thereto claims Husband and in his own right; and separate actions brought in respect of such Wife with claims may be consolidated, if the Court or a Judge shall think claims in right
of Husband, fit: Provided that in the case of the death of either plaintiff such suit, so far only as relates to the causes of action, if any, which do not survive, shall abate.
And with respect to joinder of causes of action, be it enacted as Joinder of follows:
causes of Action. XLI. Causes of action, of whatever kind, provided they be by Different and against the same parties and in the same rights, may be joined in the same suit ; but this shall not extend to replevin or eject- be joined, but ment; and where two or more of the causes of action so joined separate Trials are local, and arise in different counties, the venue may be laid in may be ordered. either of such counties; but the Court or a Judge shall have power to prevent the trial of different causes of action together, if such trial would be inexpedient, and in such case such Court or Judge may order separate records to be made up, and separate trials to be bad. And for the determination of questions raised by consent of the Questions by
consent withparties without pleading, be it enacted as follows :
out pleading. XLII. Where the parties to an action are agreed as to the ques- Questions of tion or questions of fact to be decided between them, they may, after Fact may, after writ issued, and before judgment, by consent, and order of a Judge, Writ issued, by (which order any Judge shall have power to make, upon being satisfied that the parties have a bonâ fide interest in the decision of such Judge, be raised question or questions, and that the same is or are fit to be tried,) without proceed to the trial of any question or questions of fact without pleadings. formal pleadings; and such question or questions may be stated for trial in an issue in the form contained in the Schedule (A.) to this Act annexed, marked No.6, and such issue may be entered for trial and tried accordingly in the same manner as any issue joined in an ordinary action, and the proceedings in such action and issue shall be under and subject to the ordinary control and jurisdiction of the Court, as in other actions.
XLIII. The parties may, if they think fit, enter into an agree- Agreement may ment in writing, which shall not be subject to any stamp duty, and be entered into which shall be embodied in the said or any subsequent order, that for the payment upon the finding of the jury in the affirmative or negative of such
costs according issue or issues, à sum of money fixed by the parties, or to be as- to the result of certained by the jury upon a question inserted in the issue for that the Issue. purpose, shall be paid by one of such parties, to the other of them, either with or without the costs of the action.
XLIV. Upon the finding of the jury in any such issue, judg- Judgment to be ment may be entered for such sum as shall be so agreed or ascer- entered accordtained as aforesaid, with or without costs, as the case may be, and ing to the Agreeexecution may issue upon such judgment forth with, unless other ment, and Exe
cut on issued wise agreed, or unless the Court or a Judge shall otherwise order forth with, un
leave of a