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ment upon

No. 9. for the purpose of giving either party an opportunity for moving to Clauses of set aside the verdict, or for a new trial. Act of Parl. XLV. The proceedings upon such issue may be recorded at 15 & 16 Vic. the instance of either party, and the judgment, whether actually re

c. 76, corded or not, shall have the same effect as any other judgment in in force. a contested action.

XLVI. The parties may, after writ issued, and before judgment, Questions of law

by consent, and order of a Judge, state any question or questions of may be raised after Writ issued law in a special case for the opinion of the Court, without any by consent &c., pleadings. without pleading. XLVII. The parties may, if they think fit, enter into an agreeAgreement as to payment

ment in writing, which shall not be subject to any stamp duty, and of money and

which shall be embodied in the said or any subsequent order, that Costs, accord- upon the judgment of the Court being given in the affirmative or negaing to Judg- tive of the question or questions of law raised by such special case, Special Case.

a sum of money, fixed by the parties, or to be ascertained by the Court, or in such manner as the Court may direct, shall be paid by one of such parties to the other of them, either with or without costs of the action; and the judgment of the Court may be entered for such sum as shall be so agreed or ascertained, with or without costs, as the case may be, and execution may issue upon such judgment forthwith, unless otherwise agreed, or unless stayed by pro

ceedings in error. Costs to follow XLVIII. In case no agreement shall be entered into as to the the event, un

costs of such action, the costs shall follow the event, and be reless otherwise agreed.

covered by the successful party. Pleadings in And with respect to the language and form of pleadings in general, general be it enacted as follows: Fictitious and XLIX. All statements which need not be proved, such as the needless aver- statement of time, quantity, quality, and value, where these are ments not to be made.

immaterial; the statement of losing and finding, and bailment, in actions for goods or their value; the statement of acts of trespass having been committed with force and arms, and against the peace of Our lady the Queen; the statement of promises which need not be proved, as promises in Indebitatus counts, and mutual promises to perform agreements; and all statements of a like kind shall be

omitted. Judgment upon

L. Either party may object by demurrer to the pleading of the Demurrer to be

opposite party on the ground that such pleading does not set forth given according sufficient ground of action, defence, or reply, as the case may be ; to the very right of the

and where issue is joined on such demurrer, the Court shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission, defect in or lack of form ; and no judgment shall be arrested, stayed or reversed for any such imperfection,

omission, defect in or lack of form. Objections by way of Special

LI. No pleading shall be deemed insufficient for any defect which Demurrer taken could heretofore only be objected to by a special demurrer. away.

LIJ. If any pleading be so framed as to prejudice, embarrass, or Pleadings delay the fair trial of the action, the opposite party may apply to framed to embarrass may be

the Court or a Judge to strike out or amend such pleading, and struck out or

the Court or any Judge shall make such order respecting the same, amended. and also respecting the costs of the application, as such Court or

Judge shall see fit.

LIII. Rules to declare, or to declare peremptorily, and rules to


entered as of

reply, and plead subsequent pleadings, shall not be necessary,

No. 9. and instead thereof a notice shall be substituted requiring the Clauses of opposite party to declare, reply, rejoin, or as the case may be, Act of Parl. within four days, otherwise judgment; such notice to be delivered 15 & 16 Vic. separately or indorsed on any pleading to which the opposite party

c. 76, is required to reply, rejoin, or as the case may be.

in force. LIV. Every declaration and other pleading shall be entitled of the proper Court, and of the day of the month and the year when Pleadings to

be dated and the same was pleaded, and shall bear no other time or date, and every declaration and other pleading shall also be entered on the

time of pleadrecord made up for trial and on the judgment roll under the date ing, unless of the day of the month and year when the same respectively took order to the place, and without reference to any other time or date, unless contrary. otherwise specially ordered by the Court or a Judge.

LV. It shall not be necessary to make profert of any deed or Profert and other document mentioned or relied on in any pleading; and if Oyer abolished. profert shall be made it shall not entitle the opposite party to crave oyer of or set out upon oyer such deed or other document.

LVI. A party pleading in answer to any pleading in which any Documents document is mentioned or referred to shall be at liberty to set out may be set the whole or such part thereof as may be material, and the matter forth and Le

considered a so set out shall be deemed and taken to be part of the pleading in

part of the which it is set out.

pleading in which it is set forth. LVII. It shall be lawful for the plaintiff or defendant in any Performance action to aver performance of conditions precedent generally, and of conditions the opposite party shall not deny such averment generally, but precedent may

be averred shall specify in his pleading the condition or conditions precedent

generally. the performance of which he intends to contest.

And with regard to the time and manner of declaring, and to Declaration. particulars of demand, be it enacted as follows: LVIII. A plaintiff shall be deemed out of Court, unless he de- Plaintiff to

declare within clare within one year after the writ of summons is returnable.

a year. · LIX. Every declaration shall commence as follows, or to the like

Forms of comeffect :

mencement &c. [Venue.) “A.B. by E.F., his attorney, (or in person, as the case of Declaration.

may be), sues C.D. for (here state the cause of action);" And shall conclude as follows or to the like effect : “And the plaintiff claims £

(or, if the action is brought to recover specific goods, the plaintiff claims a return of the said goods or their value, and £

for their detention.)" LX. In all cases in which, after a plea in abatement of the non- Commencejoinder of another person as defendant, the plaintiff shall, without ment of De

claration after having proceeded to trial on an issue thereon, commence another

Plea of Nonaction against the defendant or defendants in the action in which joinder. such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, or shall amend by adding the omitted defendant or defendants, the commencement of the declaration shall be in the following form or to the like effect : (Venue.] “ A.B. by E.F., his attorney (or in his own proper

person, &c.), sues O.D. and G.H., which said 0.D. has heretofore pleaded in abatement the nonjoinder of the said G.H. for,” &c.

and prayer

No. 9.

LXI. In actions of libel and slander the plaintiff shall be at Clauses of liberty to aver that the words or matter complained of were used in Act of Parl. a defamatory sense, specifying such defamatory sense without any 15 & 16 Vic. prefatory averment to show how such words or matter were used in

c. 76, that sense, and such averment shall be put in issue by the denial in force. of the alleged libel or slander; and where the words or matter set Declaration for

forth, with or without the alleged meaning, show a cause of action, Libel or slander. the declaration shall be sufficient. Pleadings.

And as to pleas and subsequent pleadings, be it enacted as

follows : Rules to plead LXII. No rule to plead or demand of plea shall be necessary, and demand of and the notice to plead indorsed on the declaration or delivered plea abolished.

separately shall be sufficient. Time for plead- LXIII. In cases where the defendant is within the jurisdiction, ing where

the time for pleading in bar, unless extended by the Court or a Defendant is within

Judge, shall be eight days; and a notice requiring the defendant Jurisdiction to plead thereto in eight days, otherwise judgment, may, whether to be eight the declaration be delivered or filed, be indorsed upon the decladays.

ration, or delivered separately. Express color

LXIV. Express color shall no longer be necessary in any abolished.

pleading Special Tra- LXV. Special traverses shall not be necessary in any pleading. verses abolished.

LXVI. In a plea or subsequent pleading it shall not be necesFormal commencement

sary to use any allegation of actionem non, or actionem ulterius

non, or to the like effect, or any prayer of judgment, nor shall of Judginent it be necessary in any replication or subsequent pleading, to use unnecessary. any allegation of precludi non, or to the like effect, or any prayer

of Judgment. Commence LXVII. No formal defence shall be required in a plea, or ment of plea.

avowry, or cognizance, and it shall commence as follows, or to
the like effect:
“ The defendant by

his attorney (or in person,
or as the case may be,) says that (here state first defence)"
and it shall not be necessary to state in a second or other Plea, or
avowry, or cognizance, that it is pleaded by leave of the Court or a
Judge, or according to the form of the statute, or to that effect; but
every such plea, avowry, or cognizance shall be written in a sepa-
rate paragraph, and numbered, and shall commence as follows, or
to the like effect:
“ And for a second (&c.) Plea the defendant says, that (here

state second, dc. defence) ;' or if pleaded to part only, then as follows, or to the like effect : “ And for a second (&c.) Plea to (stating to what it is pleaded),

the defendant says that,” &c., and no formal conclusion shall be necessary to any plea, avowry,

cognizance or subsequent pleading. Plea of matter

LXVIII. Any defence arising after the commencement of any subsequent to action shall be pleaded according to the fact, without any

formal Action. commencement or conclusion; and any plea which does not state

whether the defence therein set up arose before or after action shall be deemed to be a plea of matter arising before action.


Court in cer

LXIX. In cases in which a plea puis darrein continuance has

No. 9. heretofore been pleaded in Banc or at Nisi Prius, the same defence Clauses of may be pleaded with an allegation that the matter arose after the Act of Parl. last pleading: and such plea may, when necessary, be pleaded at Nisi 15 & 16 Vic. Prius, between the tenth of August and twenty-fourth of October ;

c. 76, but no such plea shall be allowed unless accompanied by an affidavit

in force. that the matter thereof arose within eight days next before the

Plea Puis pleading of such plea, or unless the Court or a Judge shall other- darrein conwise order.

tinuance when and how to be pleaded. LXX. It shall be lawful for the defendant in all actions, (except Payment into actions for assault and battery, false imprisonment, libel, slander,

tain Actions. malicious arrest or prosecution, criminal conversation, or debauching of the plaintiff's daughter or servant,) and, by leave of the Court or a Judge, upon such terms as they or he may think fit, for one or more of several defendants to pay into Court a sum of money by way of compensation or amends : Provided that nothing herein contained shall be taken to affect the provisions of a certain Act of Parliament passed in the session of Parliament holden in the sixth and seventh years of the reign of Her present Majesty, entitled, “ An Act to amend the Law respecting defamatory Words and Libel."

LXXI. When money is paid into Court, such payment shall be Payment into pleaded in all cases, as near as may be, in the following form, Court, how mutatis mutandis :

pleaded. “ The defendant by

his attorney (or in person, &c.)
(if pleuded to part say, as to £

parcel of the
money claimed) brings into Court the sum of £
and says that the said sum is enough to satisfy the claim of

the plaintiff in respect of the matter herein pleaded to.” LXXII. No rule or Judge's order to pay money into Court No order to shall be necessary, except in the case of one or more of several pay money defendants, but the money shall be paid to the proper officer of iuto Court. each Court, who shall give a receipt for the amount in the margin of the Plea, and the said sum shall be paid out to the plaintiff or to his attomey, upon a written authority from the plaintiff, on demand.

LXXIII. The plaintiff, after the delivery of a plea of payment Proceeding of money into Court, shall be at liberty to reply to the same by by Plaintii accepting the sum so paid into Court in full satisfaction and dis- after payment

into Court. charge of the cause of action in respect of which it has been paid in, and he shall be at liberty in that case to tax his costs of suit, and, in case of nonpayment thereof within forty-eight hours, to sign judgment for his costs of suit so taxed, or the plaintiff may reply that the sum paid into Court is not enough to satisfy the claim of the plaintiff in respect of the matter to which the plea is pleaded ; and, in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his costs of suit.

LXXIV. Whereas certain causes of action may be considered Pleas to Acto partake of the character both of breaches of contract and of tions partaking wrongs, and doubts may arise as to the form of pleas in such both of Breach

of Contract and actions, and it is expedient to preclude such doubts : any plea Wrong. which shall be good in substance, shall not be objectionable on the ground of its treating the declaration either as framed for a breach of contract, or for a wrong.

No. 9. LXXV. Pleas of payment and set-off, and all other pleadings Clauses of capable of being construed distributively, shall be taken distribuAct of Parl. tively, and if issue is taken thereon, and so much thereof as shall 15 & 16 Vic. be sufficient answer to part of the causes of action proved shall be

c. 76, found true by the jury, a verdict shall pass for the defendant in in force. respect of so much of the causes of action as shall be answered,

and for the plaintiff in respect of so much of the causes of action Payment, set- as shall not be so answered. off, and other pleadings which can be construed distributively shall be so construed. Traverse of LXXVI. A defendant may either traverse generally such of the the Declara

facts contained in the declaration as might have been denied by tion

one plea, or may select and traverse separately any material allegation in the declaration, although it might have been included in

a general traverse. Traverse of LXXVII. A plaintiff shall be at liberty to traverse the whole of Plea or subse

any plea or subsequent pleading of the defendant by a general quent pleading denial, or admitting some part or parts thereof, to deny all the rest, of

or to deny any one or more allegations. Traverse of LXXVIII. A defendant shall be at liberty in like manner to Replication or deny the whole or part of a replication or subsequent pleading of subsequent

the plaintiff. pleading of the Plaintitf.

LXXIX. Either party may plead, in answer to the plea or subJoinder of issue. sequent pleading of his adversary, that he joins issue thereon,

which joinder of issue may be as follows or to the like effect :
“ The plaintiff joins issue upon the defendant's 1st (&c., specifying

what or what part) plea :"
" The defendant joins issue upon the plaintiff's replication to the

1st (&c., specifying what) plea :" and such formi of joinder of issue shall be deemed to be a denial of the substance of the plea or other subsequent pleading, and an issue thereon; and in all cases where the plaintiff's pleading is in denial of the pleading of the defendant, or some part of it, the

plaintiff may add a joinder of issue for the defendant. As to pleading LXXX. Either party may, by leave of the Court or a Judge, and demurring plead and demur to the same pleading at the same time, upon an together.

affidavit by such party, or his attorney, if required by the Court or Judge to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to be traversed by him, and that the several matters sought to be pleaded as aforesaid by way of confession and avoidance are rospectively true in substance and in fact, and that he is further advised and believes that the objections raised by such demurrer are good and valid objections in law, and it shall be in the discretion of the Court or a

Judge to direct which issue shall be first disposed of. Several mat- LXXXI. The plaintiff in any action may, by leave of the Court ters may be or a Judge, plead in answer to the plea, or the subsequent pleading pleaded at

of the defendant, as many several matters as he shall think necesany stage of the pleadingo.

sary to sustain his action; and the defendant in any action may, by leave of the Court or a Judge, plead in answer to the declaration, or other subsequent pleading of the plaintiff, as many several matters as he shall think necessary for his defence, upon an affidavit of the party making such application, or his attorney, if required by the Court or Judge, to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to

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