Court to judges of two other Courts.

Act not to affect Chief Justices or

error shall

ing of this act be brought into the said Court of Exchequer Chamber upon any judgment or other proceeding of any of the Courts of Queen's Bench, Common Pleas, or Exchequer, the proceedings in the said Court of Exchequer Chamber in error, or upon such appeal, shall be before the chief justices and justices only, or chief justice and justices, chief baron and barons only, as the case may be, of the two other of the said Courts, or any six or more of them. II. Nothing in this act contained shall in any way affect the power or jurisdiction of either of the chief justices or the chief Chief Baron. baron to fix the sittings of the said Court, or (save in proceedings in error or upon appeal, to which the last preceding section shall apply,) to do any other thing in or relating to the said Court. Procedure in III. In order that the procedure in error in the said Court of be uniform. Exchequer Chamber upon all judgments and proceedings of the superior Courts of law may be rendered, so far as possible, uniform, the enactments of the "Common Law Procedure Amendment Act (Ireland), 1853," with respect to the bringing of error into the said Court of Exchequer Chamber, and the rules and orders made or to be made in pursuance of the said act, shall extend to and include the bringing of error in the said Court of Exchequer Chamber upon all judgments and proceedings of the Court of Chancery as a Court of Law, of the Courts of Queen's Bench, Common Pleas, and Exchequer, as well in crown as in all other cases in which error upon such judgments or proceedings may now be brought in the said Court of Exchequer Chamber; and the procedure in error in the said Court of Exchequer Chamber, and the proceedings consequent thereon, shall, so far as practicable, in all such cases be pursuant to the said "Common Law Procedure Amendment Act (Ireland), 1853," and the said rules made or to be made under the said act provided, that nothing in this act contained shall be construed to enable error to be brought in cases in which error which error cannot now be brought provided also, that where any fiat or cannot now consent is now required in any proceeding in error, such fiat or consent shall continue to be required in the corresponding proceeding in error under this act.

No error to

be brought in cases in

be brought.

Power to

IV. The power to make general orders for the said Court of make Gene Exchequer Chamber under section two hundred and thirty-three of the "Common Law Procedure Amendment Act (Ireland), 1853," shall extend to all proceedings in error in the said Court.

ral Orders.

24 & 25 VICT., CHAP. XLIII.

An Act to facilitate the Remedies on Bills of Exchange and I romissory Notes in Ireland by the Prevention of frivolous or fictitious Defences to Actions thereon.

[22nd July, 1861.]

Whereas bona fide holders of dishonored bills of exchange and promissory notes are often unjustly delayed and put to unnecessary expense in recovering the amount thereof by reason of frivolous or fictitious defences to actions thereon, and it is expedient that greater facilities than now exist should be given for the recovery of money due on such bills and notes: be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows:

Oct. 1861,

all actions

ceed under

by 16 & 17

I. From and after the twenty-first day of October one thousand From and eight hundred and sixty-one, all actions upon bills of exchange after 21st or promissory notes commenced within six months after the same shall have become due and payable, may, in case the plaintiff upon bills of shall desire to proceed under this act, be commenced as herein- exchange, after mentioned; that is to say, the summons and plaint shall be in Plaintiff de&c. may, if the form prescribed by The Common Law Procedure Amendment sires to proAct (Ireland), 1853; but, in addition thereto, and to any particu- this Act, be lars or indorsements required by the said act, such sumnions and in the formi plaint shall have at the head thereof a notice in the form con- prescribed tained in the schedule (A.) to this act annexed; and in any case Vict. c. 113, in which the summons and plaint shall be in such form it shall with addinot be lawful for the defendant to file any appearance or defence tions thereto the said action unless he shall obtain leave from a Judge, as specified. herein-after mentioned, so to appear and defend; and in default of his obtaining such leave, or of appearance and defence in pursuance thereof, the plaintiff shall be entitled to mark judgment with costs, in pursuance of the provisions of The Common Law Procedure Amendment Act (Ireland), 1853, for any sum not exceeding the sum mentioned in the notice at the commencement of the summons and plaint.

to, as herein

In order that a plaintiff may be able to avail himself of the benefit of the present statute, there are two requisites which, as may be observed, In what must exist: (1).—The action must be brought on a bill of exchange or cases plainpromissory note. (2).-The action must be commenced within six months tiff may proafter the bill or note has become payable. As regards the first requisite, act. it has been held that the act applies to cheques or drafts or orders on bankers (Eyre v. Waller, 5 H. & N. 460). The summons and plaint may

ceed under

A mending writ.

Action against executors.

Costs.

Defendant showing a defence upon the

merits, to

have leave to appear.

Obtaining leave to defend.

in addition to the usual counts on bills of exchange, include one upon an account stated, if the particulars endorsed be limited to the bill sued on (Gray v. Murphy, 12 Ir. C. L. R. 547); but where the summons and plaint contained counts for money lent, money paid, etc. it was set aside (Parkinson v. Cook, 7 Ir. Jur. N. S. 335). As regards the period within which the action may be brought, the statute, as may be observed, requires that the action shall be brought within six months after the bill or note shall have become due and payable. When the bill or note is payable on demand the six months mentioned in the act runs from the date of the note, (Maltby v. Murrells, 5 H. & N. 813). Where however the writ is issued after the prescribed period, the writ although irregular, is not void, and the irregularity may be waived by the laches of the defendant (id). A summons and plaint issued under the act will not be demurrable because it does not appear that the cause of action arose within six months (Devereux v. Morrissey, 17 Ir. C. L. R. 785).

The Court may amend a writ improperly issued under the present act, and make it a good ordinary writ (Leigh v. Baker, 2 C. B. N. S. 367) ; and see as to amending a defect in the writ Knight v. Pocock, 17 C. B. 177 ; where the amount at the corner of the bill was larger than that in the body, the Court refused to set the writ aside (Hall v. Coates, 25 L. J., Ex. 3).

A question has arisen in some cases in England as to whether an action can be brought against an executor under the corresponding English act (See In re Skeggs, 5 Jur. N. S. 325; Leigh v. Baker, 2 C. B. N. S. 370). The difficulty, however, would appear to be principally attributable to the form of judgment contained in the schedule annexed to the English act, and upon principle there is no reason why an executor should not be liable to be sued under the act; and see McStephens v. Hartley, 20 L. T. N. S. 225.

Where an action is brought under the present act, the right to costs is subject to the limitations contained in sect. 243 of the C. L. P. Act, 1853, and sect 97 of the C. L. P. Act, 1856 (Copland v. Armstrong, 13 Ir. C. L. R., Ap. 46), and see as to the costs of actions brought on bill of exchange, or other negotiable instruments, ante p. Ixix.

II. A Judge of any of the superior Courts of Common Law in Ireland may, upon application made within the period of twelve days from such service, or at any time before judgment marked, give leave to appear and defend such action on the defendant paying into Court the sum claimed by the summons and plaint, or upon affidavits satisfactory to the Judge, which disclose a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the Judge may deem sufficient to support the application, and on such terms as to security or otherwise as to the Judge may seem fit.

The defendant may, as will be observed, obtain leave to defend in all cases by paying into Court the sum claimed by the summons and plaint. He may also obtain leave to defend upon an affidavit disclosing a legal

or equitable defence, or disclosing such facts as make it incumbent on the holder of the bill to prove consideration, or such other facts as the Judge may deem sufficient to support the application.

An application for leave to appear and defend should be made to a Judge and not to the Court (Andrews v. Ball, 7 Ir. Jur. N. S. 13). The application, except where the defendant is willing to pay into Court the sum claimed, must be supported by an affidavit disclosing the grounds upon which the leave is sought. As to the nature of the defence which must be disclosed by the affidavits, reference may be made to Agra and Masterman's Bank v. Leighton, L. R. 2 Ex. 56, where it is laid down that the intention of the Bills of Exchange Act was, that where there was no pretence for a defence, the party sued should not be allowed to defend, and the holder should have judgment as of course; but that if the defendant had a real, not to say a good, defence, he should have leave to appear and set it up. The act does not require the Court or Judge to try the merits of the action; and it requires leave to appear to be specially granted only in order to prevent vexatious and unfounded defences; and, as a general rule, a defendant will be let in to defend where there is any defence suggested, either in law or in fact, which there is any reasonable ground for supposing may possibly be supported (Mathews v. Marsland, 27 L. J. Ex. 148, S. P.; Clay v. Turley, id. 2). The mere belief of the defendant that the plaintiff is not a bona fide holder, and has notice of an agreement with a former holder not to look to the defendant for payment, is not enough when contradicted by affidavits in reply (Garnett v. O'Connor, 7 Ir. Jur. N. S. 367). When a defendant applies for leave to defend upon the ground that he never signed the bill or authorized any one to sign it for him, the affidavit should state that the defendant has inspected the bill before swearing the affidavit, or account for not having done so.

A defendant sued under the present act cannot demur without leave Demurring. (Magrath v. O'Gorman, 10 Ir. Jur. N. S. 114); neither will the time for pleading be extended without an affidavit (Hewatt v Fitzsimons, Ir. R. 2 Extending C. L. 34).

time to

plead.

Where an order giving leave to appear and defend has been fraudu- Rescinding lently obtained upon an ex parte application, the Court will rescind the order. order (Pollock v. Turncock, 1 H. & N. 741 ; and see Esdaile v. Ramsay, 10 W. R. 20). As to appealing to the Court from an order of a Judge granting or refusing leave to defend, see Smith v. Dive, 6 Jur. N. S. 1016; Brutton v. Thomas, 1 F. & F. 877; Febart v. Stevens, 30 L. J. Ex 1. As a general rule the Court will not interfere with the discretion of the Judge.

If the defendant's residence be incorrectly described in the summons Residence. and plaint, and he be thereby prejudiced, the misdescription will be ordered to be amended at the cost of the plaintiff (Silk v. Armstrong, Ir. R. 2 C. L. 155). As to compelling a plaintiff residing out of the jurisdiction to give security for costs, see Jackson v. Barton, 8 Ir. Jur.

costs.

N. S. 131; Martin v. Wilson, 7 Ir. Jur. N. S. 335; referred to ante p. 50. Security for As a general rule the defendant before applying for security must have obtained liberty to appear and defend.

Judge may under

special cir

III. After judgment the Court or a Judge may, under special circumstances, set aside the judgment, and, if necessary, stay or cumstances, set aside execution, and may give to appear and defend the action, set aside if it shall appear to be reasonable to the Court or Judge to do so, and on such terms as to the Court or Judge may seem just.

judgment.

Judge may

be deposited

with officer

IV. In any proceedings under this act it shall be competent to order bill to the Court or a Judge to order the bill or note sought to be proceeded upon to be forthwith deposited with an officer of the Court, and further to order that all proceedings shall be stayed until the plaintiff shall have given security for the costs thereof.

of Court in certain cases.

Remedy for

the recovery of expenses

V. The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or nonnon-accep- payment, or otherwise, by reason of such dishonour, as he has dishonoured under this act for the recovery of the amount of such bill or

of noting

tance of

bill.

Common

Law Proce

dure acts

and rules

note.

VI. The provisions of the "Common Law Procedure Amendment Act (Ireland), 1853," and the "Common Law Procedure Amendment Act (Ireland), 1856," and all rules made under or by made under virtue of either of the said acts, shall, so far as the same are or corporated. may be made applicable, extend and apply to all proceedings to be had or taken under this act.

them in

Judges to frame rules.

Extent of act.

Short title.

VII. The Judges of the superior Courts of Common Law in Ireland shall have power to frame all rules and process necessary thereto.

VIII. This act shall apply to Ireland only.

IX. In citing this act in any instrument, document, or proceeding, it shall be sufficient to use the expression "The Summary Procedure on Bills of Exchange (Ireland), Act, 1861.”

SCHEDULE REFERRED TO IN THE FOREGOING ACT.

A.

The following notice is to be printed at the commencement of the summons and plaint, and before the name and title of Her Majesty.

The defendant [Richard Roe] is hereby warned and required to take notice,

That this action being brought on the undermentioned bill of