Upon plea in abatement for nonjoinder of defendants, proceedings may be amended. ants be struck 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. 38. In any action on contract where the nonjoinder of any person or persons as a co-defendant or co-defendants has been pleaded in abatement, the plaintiff shall be at liberty, without any 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 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 39. 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 subsequent proceedings person or persons so named in such plea in abatement was or were jointly liable with the original defendant or defendants, the original defendant or defendants shall be entitled as against the plaintiff to the costs of such plea in abatement and amendment; but if at such trial it shall appear that the nonjoinder of original defendant or any of the original defendants is or are defendants. liable, but that one or more of the persons named in such against the persons named in a plea in abate ment for Joinder of claims by husband and wife, with claims in 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 in abatement the nonjoinder of such person: provided that any such defendant who shall have so pleaded in abatement shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him in such plea in abatement. 40. In any action brought by a man and his wife for an injury done to the wife, in respect of which she is necessarily joined as co-plaintiff, it shall be lawful for the husband to add thereto claims in his own right, and separate actions brought in respect of such claims may be consolidated, if the court or right of husa judge shall think fit: provided that in the case of the death band. 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 follows: Joinder of causes of action may 41. Causes of action, of whatever kind, provided they be Different by and against the same parties and in the same rights, may be joined in the same suit; but this shall not extend to re- be joined, plevin or ejectment; and where two or more of the causes of but separate action so joined are local, and arise in different counties, the trials may be venue may be laid in 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 had. And for the determination of questions raised by consent of the parties without pleading, be it enacted as follows: ordered. Questions by Consent without Pleading. after writ raised with 42. Where the parties to an action are agreed as to the Questions of question or questions of fact to be decided between them, fact may, they may, after writ issued, and before judgment, by consent, issued, by and order of a judge, (which order any judge shall have power consent and to make, upon being satisfied that the parties have a bonâ fide leave of a interest in the decision of such question or questions, and that judge, be the same is or are fit to be tried,) proceed to the trial of any out pleadquestion or questions of fact without formal pleadings; and ings. 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. tered into 43. The parties may, if they think fit, enter into an agree- Agreement ment in writing, which shall not be subject to any stamp duty, may be enand which shall be embodied in the said or any subsequent for the payorder, that upon the finding of the jury in the affirmative or ment of negative of such issue or issues, a sum of money fixed by the money and parties, or to be ascertained by the jury upon a question in- costs according to the serted in the issue for that purpose, shall be paid by one of result of the such parties to the other of them, either with or without the issue. costs of the action. 44. Upon the finding of the jury in any such issue, judg- Judgment to ment may be entered for such sum as shall be so agreed or be entered ascertained as aforesaid, with or without costs, as the case according to the agreemay be, and execution may issue upon such judgment forthment, and with, unless otherwise agreed, or unless the court or a judge execution issued forth with, unless stayed. Proceedings upon issue may be recorded. Questions of law may be raised after writ issued, by consent, &c., without pleading. Agreement as to payment of money and costs, according to judgment upon special case. Costs to follow the event, unless otherwise agreed. Pleadings in general. Fictitious averments not to be made. shall otherwise order for the purpose of giving either party an opportunity for moving to set aside the verdict, or for a new trial. 45. The proceedings upon such issue may be recorded at the instance of either party, and the judgment, whether actually recorded or not, shall have the same effect as any other judgment in a contested action. 46. The parties may, after writ issued, and before judgment, by consent, and order of a judge, state any question or questions of law in a special case for the opinion of the court, without any pleadings. 47. The parties may, if they think fit, enter into an agreement in writing, which shall not be subject to any stamp duty, and which shall be embodied in the said or any subsequent order, that upon the judgment of the court being given in the affirmative or negative of the question or questions of law raised by such 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 proceedings in error. 48. In case no agreement shall be entered into as to the costs of such action, the costs shall follow the event, and be recovered by the successful party. And with respect to the language and form of pleadings in general, be it enacted as follows: 49. All statements which need not be proved, such as the and needless statement of time, quantity, quality, and value, where these are 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 demur rer to be given according to the very 50. Either party may object by demurrer to the pleading of the opposite party, on the ground that such pleading does not set forth sufficient ground of action, defence, or reply, as the case may be; and where issue is joined on such demurrer, the court shall proceed and give judgment according as the very right of the 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. cause. 51. No pleading shall be deemed insufficient for any defect Objections which could heretofore only be objected to by special de- by way of murrer. special demurrer taken 52. If any pleading be so framed as to prejudice, embarrass, away. or delay the fair trial of the action, the opposite party may Pleadings apply to the court or a judge to strike out or amend such framed to pleading, and the court or any judge shall make such order embarrass respecting the same, and also respecting the costs of the ap- struck out plication, as such court or judge shall see fit. may be or amended. Four days 53. Rules to declare, or declare peremptorily, and rules to reply, and plead subsequent pleadings, shall not be necessary, notice suband instead thereof a notice shall be substituted requiring the stituted for opposite party to declare, reply, rejoin, or as the case may be, rule to dewithin four days, otherwise judgment, such notice to be declare, reply, livered separately or indorsed on any pleading to which the opposite party is required to reply, rejoin, or as the case may be. or rejoin. entered as 54. Every declaration and other pleading shall be entitled Pleadings to of the proper court, and of the day of the month and the be dated and year when the same was pleaded, and shall bear no other time of time of or date, and every declaration and other pleading shall also be pleading, unentered on the record made up for trial and on the judgment less order to roll under the date of the day of the month and year when the same respectively took place, and without reference to any other time or date, unless otherwise specially ordered by the court or a judge. the contrary. oyer abo lished. 55. It shall not be necessary to make profert of any deed Profert and or other document mentioned or relied on in any pleading; and if 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. forth, and 56. A party pleading in answer to any pleading in which Document any document is mentioned or referred to shall be at liberty may be set to set out the whole or such part thereof as may be material, considered a and the matter so set out shall be deemed and taken to be part of the part of the pleading in which it is set out. pleading in which it is set forth. Performance 57. It shall be lawful for the plaintiff or defendant in any action to aver performance of conditions precedent generally, and the opposite party shall not deny such averment gene- of conditions rally, but shall specify in his pleading the condition or con- precedent ditions precedent the performance of which he intends to may be contest. averred generally. And with regard to the time and manner of declaring, and Declaration. to particulars of demand, be it enacted as follows: 58. A plaintiff shall be deemed out of court, unless he declare within one year after the writ of summons is return able. 59. Every declaration shall commence as follows, or to the like effect: [Venue.] A. B. by E. F., his attorney [or "in person," as Plaintiff to declare with in a year. Forms of commencement and conclusion of declaration. Commence ment of declaration after plea of nonjoinder. Declaration for libel or slander. Pleas and subsequent Pleadings. Rules to plead and de the case 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 £ detention."] for their 60. In all cases in which, after a plea in abatement of the nonjoinder of another person as defendant, the plaintiff shall, without having proceeded to trial on an issue thereon, commence another action against the defendant or defendants in the action in which 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 C. D. and G. H., which said C. D. has heretofore pleaded in abatement the nonjoinder of the said G. H. for, &c. 61. In actions of libel and slander the plaintiff shall be at liberty to aver that the words or matter complained of were used in a defamatory sense, specifying such defamatory sense without any prefatory averment to show how such words or matter were used in that sense, and such averment shall be put in issue by the denial of the alleged libel or slander; and where the words or matter set forth, with or without the alleged meaning, show a cause of action, the declaration shall be sufficient. And as to pleas and subsequent pleadings, be it enacted as follows: 62. No rule to plead or demand of plea shall be necessary, mand of plea and the notice to plead indorsed on the declaration or delivered separately shall be sufficient. abolished. Time for pleading, where de 63. In cases where the defendant is within the jurisdiction, the time for pleading in bar, unless extended by the court or a judge, shall be eight days; and a notice requiring the defendant to plead thereto in eight days, otherwise judgment, diction, to be may, whether the declaration be delivered or filed, be indorsed eight days. upon the declaration, or delivered separately. fendant is within juris Express colour abolished. Special traverses abolished. Formal com 64. Express colour shall no longer be necessary in any pleading. 65. Special traverses shall not be necessary in any pleading. 66. In a plea or subsequent pleading it shall not be necessary to use any allegation of actionem non, or actionem ulterius |