Supreme Court Act 1853 (SA)

No. 5.

Au Act for the more eflectuul admkistration of Justice 6y means

o f the Supreme Court. , L .- PC-

', p - /dsf-Jk. --

[dssented to 19th October, 1853.1 1. v L- 4. - ,?G - -- - -. . /m- -

AS the process, practice, and mode of pleading in the Przamble.

lie it Enacted by the T,ieutenant-Govcrllor of South Australia, W"""" Supreme Court may be rendered more simple and apeedy-

wit11 the advice of the Legislative Council thereof, as follows:

1. The provisions of this Act shall come into operation on the C~)mmericemcnt of Act.

first day of January now next. / i G ,.' '+&-&.,. /&3

7 -

A i d with respect to the writs for the commer~cen~ent of personal Writ8f0r the

actions in the said Court a ~ a i n s t dcf'cndants, whether in or out commencement of ucttons.

of I lx jrxriscliction of the Court-Be it Enacted as follows:

1. All personal actions brouf;l$ in the Suprcmc Court, where the Personal actions,when --- - -

defendant resides

(lefendxui is residing or sapposed to reside witl~irl the jurisdiction

of tiie said Court, s l d be corninenced by writ of summons, in the to bt: commenced by	writ of siimmons in
for111 contained in &e';S~=dule A, to this Act annexed, nlarlred No.	formNo. 1 oftfjchodule

1; aud in every such writ 81id copy thereof' thc place of the A*

residence or supposed residelice of the party defendant, or wherein

the defendant s l d l be, or shall be supposed to be, shall be

ll~entioned.

R 3. It

W~ihtSfo~ the 60

commencement of

actions. 3. It shall not be necessary to mention any form or cause of

No form Or cause of action to be mentioned	action in any writ of summons, or in any notice of writ of summons,
in writ.	issued under the authority of this Act.
w r i t tostatenames

of all defendants arld 4. Every writ of summons shall contain the names of all the

mr o n b ono aeaoll.

defendants, and shall not contain the name or names of any de-

fendant or defendants in more actions than one.

tVrit to be dated of

nay of isuing and 5- Every writ of summons shall bear date on the day on which

tested in name of the same "shall be issued, and shall be tested in the name of the

Chief or Senior ~udgn. Chief Justice or Senior Judge of the Supreme Court.

writ to be enrlorsed

with name and abode 6. Every writ of summons shall be endorsed with the name and

ofattorney, or	place of abode of the attorney actually suing out the same, and
memorandurn that
writ has been sued by	when the attorney actually suing out any writ shall sue out the

. plaintiff in person. same as agent for an attorney iu the country, the name and place

- of abode of such attorney in the country shall also be endorsed on the said writ, and in case no attorney shall bc employed to issue the writ, then it shall be endorsed with a memo ran dun^ expressin5 that the same has been sued out by the plaintiff in person, mentioning- the city, town, or place, and also the name of the street and number of the house of such plaintiff's residence, if any such there be; and also, in case such plaintiff shall not reside within the City of Adelaide, an address within such city, at which it shall be sufficient to leave a11 pleadings and other proceedings not requiring personal service.

Attorper 0. acmnnd 7. Every attorney whose name shall be endorsed on any writ,

to dcclare whether issued by authority of this het, s h d, on demand in writing made

issma his

authority, and to	declare profescion and by or on beliulf of any defendant, declare forthwith whether such
abode ol'his clieut if writ has been issued by him or ai th his authority or privity; and if
ordered. he shall answer in the affirmative, then Le shall also, in case the Court or a Judge shall so order and direct, declare in witing within

a time to be allowed bv such Court or Judge, the profession, occu-

pation, or quality, and place of abode of tile plnintitf, on pain of being guilty of a contempt of the said Court; and if such attorney

authority or privity., all proceedings upon the same shall be stayed,

shall declare that the writ was not issued by him, or with his

and no furthcr proceedings shall be taken tlhereupon without leave

of the Court or a Judge.

E~idorserncnt of debt, 8. IJpon the writ and copy of any writ served for the payment of

arid c&s on writ and

copy of w i t fur a	any debt, the amount of the debt shall be stated, ancl the amount of
proceedhgs will be
debt, with noticc that	what the plaintiff's attorney claims for the costs of such writ, copy,
stayad on psymvnt	and service, and attendance to receive debt and costs; and it shall be

withi11 four dws. further stated that, upon paymeut thereof, within four days, to the plaintiff or his attorney, fiukher proceedings will be stayed; which endorsement shall be written or printed in the following form, or to the like effect :-

" The plaintiff claims .S for debt., and &

for costs, and if the amount thereof be paid to the plaintiff or his attorney, vithin four days from the service hereof, hther proceedings will be stayed." But

But the defendant shall be at liberty, notwithstanding such payment, W&s for the

to have the costs taxed, and if more than one sixth shall be dis-

com.mencement of

actions.

dowed the plaiutifF's attorney shall pay the costs of taxation.

Concurrent writs mfiy

9. The plaintiff in any such action may, at any time during six months fiom the issuing of the original writ of summons, issue one or more colzcurrent writ or writs, each concurrent writ: to bear teste of the same day as the original Grit, and to be marked with a seal bearbg the word " concurrent" and also with the date of issuing the concurrent writ; and such seal sha.ll be provided and kept for that purpose at the office of the said Court, and s h d be im- pressed upon the writ by the proper officer of the said Court: Provided always, that such concurrent writ or writs shall only be in force for the period during which the original writ in such action shall be in force.	Le issucd.
From c o; \ i ~ ~ i c n c c ~ ~ ~ c n t
10. From the time when this Act shall commence and take effect, so much of a certain Act of Parliament, passed in the second year of	of this Act, certuiri
provisionso(':!nd,JY~n. IV., c. 39, no longer to
the reign of His late Majesty King Wllliarn the Fourth, intituled	be in force.
"An Act for uniformity of process in personal actions in His Majesty's Courts of Law at Westminster," as relates to the duration of writs, and to alilrs and pluries writs, and to the proceedings neces- sary for making thc first writ in any action available to prevent the operation of any statute whereby the time for the commencement of any action may be limited, s l d no longer have the force of law within the said Province, except so far as may be necessary for s~tpportingr any writs that have been issued before the commencement of this Act, and any proceedings taken or to be taken thereon.

11. No orieinal writ of summons sliall Le in force for more than Remwsl of writs of su1111nons to save the

six months from the day of the datc thereof, including the day of htatute oflimitntiuns,

served therewith, the original or concurrent writ of summons iuay	such date; but if any defendant tl~ercin ilamcd may not have been zicd~ F-
be renewed at any time before its expiration for six months from the date of such renewal, and so from time to time during the cur- rency of the renewed writ, by being marked with the seal of the Court, and also with the date of the day, i~~onth, and year of such
renewal; such seal to be impressed upon the writ by the proper officcr of the Court, upon delivcry to him by the plaintiff or his attorney a pmxipe, in such form as has hitherto been required to be delivered upon the obtaining of an nhos writ; and a writ of summons so renewed shall remain in force, and be avail- able to prevent the operation of any statute whereby the time for the conmencement of the action may be limited, and for all othcr purposes, from the date of the issuiug of the original writ uf sum- mons.

12. Where any writ of summons in any such action shall have ~ c n e w a l of writs

issued before this Act.

been issued before, and sha,ll be in force at, the cormnencen~ent of

this Act, such writ may, a t any time before the expirdion tlereof,

be renewed under the pqovisions of and in the manner directed by this Act. 13. The

W~its for the

commencement 13. The production of a writ of summons purporting to be

actions.	marked with the seal of the Court, showing the same to have been
Prodll&ion of	renewed according to this Act, ;ha11 be &fficient evidence of its

newed evidence having been so renewed, and of the commencenient of the action as

of cbmmc~mmcnt of

action. of the first date of such renewed writ far all purposes.

m ~ d ~ r s c m e n t c ~ f ~ e r - 14, The person	serving the writ	of	summons	shall,	and	he is
vice to bc made.

hereby required, within three days at least afkr such service, to endorse on the writ the day of tlie month and week of the service thereof', otherwise the plaintiff shalI not be at liberty, in case of non- appearance, to proceed under this Act, and every affidavit of service of such writ s h d merrtion the day on wllich such endorsement was made.

ffi33a~skLhh' 15. Every such writ of summons issued against a Corporation

on Corporation and

inl,abitunts of Hun-	aggregate, may be served on the Mayor or other head officer, ox on
dreds snd Towns.	the Town Clerk, Clerk, Treasurer, or secretary of such Corporation,

&Q a 24 and every such writ issued against the i~ihabihnts of a district, may

be served on any member of the Council thereof, or on the Clerk

of such Council.

X'rucccdings wl~erc

permnal scrvirc c m - 16. The writ of summons may be served within the said

llot he effected, b ~ t Provhce, by leaving a copy thereof with a member of the family,

'lefeodant

the writ and	kno'vs	evedcs	of	or servant of the defendant, at his place of business or residence,
senice.	provided that no judgment shall be signed under the provisions of this Act, unless ihc service shall hare bccn personal, or it shall be made to appear to the said Court, or a Judge thcrcof, that the writ has came to the knowledge of the defendant, and an order be there- upon made by such Court or Judge, that the plaintiff shall have liberty to sign such judgment.

AS British subjects re- to actions againfit 17. In case any defendant is residing out of the jurisdiction of

siding out ofthe juris- the said Supreme Court, it shall be lawful for the phintiff to issue

di'tiollof Supremo a writ of summons in the form contained in the Schedule A, to this C u ~ ~ r t.

Act annexed, riiarked No. 2, which writ shall bear the endorsement contained in the said form, purporting that such writ is for service

appearance by the defendant to such writ, shall be requl~tccl by the	out of the j~zrisdiction of the said Supreme Court; and the time for
distance from the said Province of the place where tlik 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 i u r i m, g r in res ect of tlie breacll o$ a co-act -_ ---
Kmade within t% 'urisdictTon, an t at the wn was personally served
G --+ *
u p o n i e defendant, or t at ~t came to his knowledre. and either &at the defendant &lfully neglects to appear to suchuwrit, or that
he is living out of the jurisdiction of the said Court 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 wch condhms as to such Court or Judge 111ay seem fit, Imvilrg regard to the time allowed for the defendant to appear, hei11g reasonable, and to the other circumstances of the case: Provided always, that the plaintiff shall, and he is hercby required,

to

to prove the amount of the debt or damages claimed by him in such f i t s f i r the

s,ction, either before a jury upon a writ of enpiry, or before the c0m"emement of	Master in the manner hereinafter provided, according to the nature actions.
of thc ease, as such Court or Judge may direct, and the making such proof shall be a condition precedent to his obtaining judgment.

18. lf the plaintiff or his attorney s l d l omit to insert in, or ell- Onisdon to inscrt or endorse matters i l l or

dorse on, any writ or copy thereof, any of the matters required by ,,,, .at	,	,	,	nullify
this Act to be inserted therein or endorsed thereon, such writ or it. copy shall not on that account be held void, but it may be set aside as irregular, or smmlecl upon application, to be made to the Court out of which t'he same sllall issue, or to n Judge; and such amend- ment may be made upon m y application to set aside the writ upon such terms as to the Court or a Judge rmy seem fit.

19. If eitlirr of the forms of writ of snmmons contained in the ~$~~;~~!~;<t$;

Schedulc A, to this Act anncxed, and marked respectively Nos. I o f one form of\vriL

nrld 2, allall, by mistake or inadverteiice, bc substituted for the ~ ~ ' T ~ ~ ~ ~ ~ o ~ ~ .

other of them, such rnistalit: or iriadverteiace ~11,211 not be an objection to the writ or any other proceeding in such action; but the writ may, up011 an ex prrrte application to a Judge, whether beforc or after any application to sct aside such writ or any pro- ceeding thereon, and whether the same or notice thereof shall have been served or not, be amended by such Judge, without costs.

20. A writ for service within the jurisdiction may be issued, and ~;&f; ;~~; l, ,

narked as a concurrent writ, with one f o ~ service out of the juris- jurisdidon may be

diction; and tl writ for service out of the jurisdiction rniy be ~ ~ ~ ~ t ~ B n " i c e

issued, and marked as a concurrent writ, with one for servica

within the jurisdiction.

2 1. From the time when this Act shall corumeuce and take nistringns t o compel appearance, or to gro-

effect, so lliuch of the said Act of IIis late Majesty Icing IVilliarn rood to omlgwry

the Fourth as relate& to the writ of distrin ns and the proceeding isbO1lshecia

proceedings to outlawry, shall no longer have the force of law	tlicrcon, whether for the purpose of coinpe ling appearance or for F
within the said Province, except so far as may be necessary for the purpose of giving effect to proceedings already takeu or to be taken after the commencement of this Act, under or by reason of any twit of distringas issued before'the eornincnceinent of this Act, or under any rule or order authorizing the issuing of such writ, and made before the comuencemeat of this Act,

2 2. In all cases where the defendant resides within the jurisdiction f $ ; ~ ~ ~ ~ ; ~ ~ ~ ~

of the Court, and the ~ 1 a h k for a debt or liquidated demand debts or lianidated

money, with or without interest, arising upon aAcontract express or "ma""nb made on the writ. IM

implied, as for instance, upon a biLl of exchange, proruiasary note

or cheaue, or other simple contract debt, ar on a bond or contract u s e r Lid for y-nlentaof a liquidated amount of money, or on n

money, or in the nature of a debt, or on a guarantee whetllcr under statute where t f? e gum sought to be recovered is a fixed sum of

8 s e d

for the seal or not, where the claim against the principal is in respect of

of such debt or liquidated demand, bill, cheque, or note, the plaintiff' thereof a special endorsement of the particulars of his claim, in the form contained in the Schedule A, to this Act annexed, marked No. 3, or to the like effect; and when a writ of summons has been

actions. shall be at liberty to make upon the writ of summons and copy

to stand for particu-	special enJor~m@nt endorsed in the special form hereinbefore mcntioned, the endorsc-
lars of domand, ment shall be considered as particulars - of demand, - and no further

05 other parti&&m=nd nae delivered, unless ordered by

J'~ the Court or a Judge.

Appearaglcey and

proceedirys in And with respect to the appearance of the defendant and pro-

default of appear- ceeangs of the plaintiff in default of appearance-Be it Enacted as

ance. ~ O ~ ~ O W Y :

Aptearanceaccording 23. From the time when this Act shall commence and take effect*,

to pro*sions of Acts	SO much of a certain Act of Parliament passed in the twelfth year
12, Geo. I., c. 29, and
2 mm. IV., c. 39,	of the reign of His. late Majesty King George the First, iiitituled
abolished.	An Bet to prevent frivolous and vexatious arrests," and so much of the said Act of His late Mqjesty King William the Fourth, as relatcs to the cutering an appearance for the defendants by the plaintiff in any action in the said Court shall no longer have the force of law within the said Province, except so far as may be iieces-
sary to support proceedinfis heretofore taken, and no appearance
need be entered by the plamtiff fur tlle defendant.
Pinal judgment up011	24. In case of nona1~pearance by the defenrlmt;, wliere the writ it shall and may be lawful for the plaintie, on filing an affidavit of per- sonal service of the writ of sumnioi~s or X Judge's order for leave to sign judgment under the provisions of this Act and a copy of the writ of summons, and adso an affidavit by tlic, plaintiff' or by some person cognizant of the facts of the case, I-erifyiug the particulars contained
'vrits*'eciallyendorscd	iu dchult of appear-	of summons is endorsed in the special form hereinbcforc provided,
ance.
in such endorsemmt, and stating the amount duc to the plaintiff in respect thereof, and in case the action s l d l arise upon a bill of exchange or promissory note, upon cxliibiting such bill or note to
the Clerk of Court or other proper officer, who d d l mark the same
as exhibited at once to sign final judgment in the form contained in
the Schedule A, to this Act annexed, marked No. 4 (on which judgment no proceeding in error sllall lie), for any sum not exceeding the sum eudorsed on the writ, together with intcrest at the rate specified, if any, to the date of the judgment, and a sum for costs (to be fixed by the Master of the said Court, subject to the approval of the Judges thereof), 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 a t 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 find judgment, to let in the defendant to defend upon an application, supported by satisfactory

affidavits

accounting for the nonappearance, aacl disclosing a defence

unon tlie merits: Provided, that when the action shall be brought

i&inst the defendant, as thk nccc tor of s bill of exchange or maker C c

of a, uromissorv note, it shall not be --+ aw u T T o X d e f e n d a n t To

-

- I " M'.

&er an appearance m such action, unless line sllall 1i.i-tve caused to be filed in the said Court an affidavit by lliinself or by some person c~giiizant of the facts of the case, stating that lie has a good defence

to such actiou 0x1 the merits ailcl the grounds of such defci~ce.

b

25. 111 case of such nonappearance, where the	of S U I Y ~ ~ O ~ ~ S	Judgment for non-	il
appearance wllclc tllc	L

is not endorsed in the special form hereinbefore provided, it shall writ is not eudurscd +l

may be lawful for tlie plaintiff; on filing an affidavit of service in the special form

F

of the writ of suniinons, and a copy of thc writ of summons, to file

declaration, eudorsccl with a noticc to plead in ciglit days, and (by

leave of a Jtzdge, if the writ of saniiiions lias not bccn personally

served) to sign jrltlgineut by dcfhult :tt the expiration of the time to

plrad so endorsed as afbreskid; and in the event of i ~ o plea being de- livered, wllere tlie cause of action iilentioiied ill the tleclnmtioii is for any of the claiirls whicll inigllt 1l:tvc been inscrtecl i n the special enhorscmeiint on tlie writ of sur~inloiis l~oreinhefola provided, ancl the

nnlount claimcc1 is endorsed on tllc T T T I * ~ ~ of S ~ I L I ~ ~ ~ U S, the jud; CB iwnt

sllall be f ml, and csecutioll inny issue for. ail r7m0~1ilt not cxc~c~l ing

t l ~ c aiiiount cnctorsecl on thewrit of su~uiuons, xi th interest a t the rate specified, if my, and the sum fised by the Master for costs as here- inbe fora mentioned, unless the rrti'tr claim more, in whicli case

the costs shall Ile taxcd i11 the orclinwy wnv: l'rovidcct alw7~~ys, that

27. Every appearance by tlie defendant in person shall g i ~ e an $:f'?:ziJz

Xkhess in the City of -kIelaide at which it shall be sufficient to leave to givc an ilddrcss at

' which proceedings

all pleading-s and other proceedii?ys not requiring pcrsonal scrvice, may	sanod.
a l d if such address bc not given, the appearance s l d l not he rcceivcd;
u d i f an address so given shall be illusory or fictitious, the appearance
&l1 be irregul;rr, and may be set aside by tlic Court or a Judge,: ~ l ~ d tlie plnint,iff' Inay be permitted to proceed by sticlcing np the

~'roceetfings in the Master's office, without furtlier service.

28. The mode of appearance to evcry such writ of summons, or &lode of appearance

~mder the authority of this Act, shall be by delivcrilig a memoran- to writ of summons.

dun1

dun1 in writing according to the following form,	or to tlle like
effect :-

The defendant, C. D., appears

" A., plaintiff, against C. D., or i in person,

aga'nst C* D* another, Or E. F,, for C. I).,

against C. D. and others. appears for him.

[If the defei~dant appears in h& give his address.]"

Such memorandum to be delivered to the proper officer or pervoll

in that belsdf; and to be dated on the day of the delivery tlrereof.

I?ro:cetlings inon 29. All such proceedings as are mentioned ill any writ or iloticc

t iu~iod in writ or

notice maj be had issued under this Act shall and may be had arid takeil in default of

. and tskctr. a defendant's appearance.

Pro~rwlings wl~ere

only sonic of the dz- 30. In any action brought against two or - morc defmtlai~ts,

fi~lciante appear to a	where the &it of ,summoris is endorsed in thc special forni 1mGr-
U

1% fix ~peclallq. en-

dorsed.

before provided, if one or more of such defendants only shall appear, and anotlicr or others of them shall not appear, it sllall allcl may be lawful for the plaintiff to s i p judgment against such de - fedant or defendants only as shall not have appeared, and, bcfom declaration against the other defendant or defendants to issue execution thereupon, in which case he sllall be taken to have abandoned his action against thc defendant or defendants who s l d l have appeared; or the plaintiff' may, before issuing such executioil, declare against such defendant or defendants as shall have appeared, stating, by way of suggestion, the judgment obtained against thc other defendant or defendants who shall not have uppearecl, in which case, the jiidgment so obtained against the defendant or defendants who sl~nll not have appeared shall operate and t ~ k e

eff'ect in like rnanncr as a judgment by default obtained before the commencement of this Act against one or more of the scveral defendants in an action of debt before tbe commencement of this Act.

tToin.rfrr of parties. And with respect to the joinder of parties to actions- Be it Enacted as follows:

Xonjoinder and mis-	31. I t shall and nzny be lawful for the Court or a J ~ ~ d g e,	at
joinder of' plaintiib

m y be amended any time before the trial_ of any cadse, to order that any person or

lx!ore trial. persons not jo>ee&as plaintiff' or plaintiffs in such cause shall be so joined, or that any person or persons originally joined as plaintiff' or plaintiffs s l d l 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 bc added as afore- said consent, either in person, or by writing under his, her, or their hands, to be so joined, or that the person or persons toy 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 teims as to the amendment of the pleadings, if any, postpone- ment of Q e trial, and otherwise, as the Court or a Judge by whonl

such

amendment ia made shall think proper; and when any such Joinder of - parties.

amendment shall have been made, the liability of any person or persons who shall have been added as coplaintiff or coplaintiffs shall, subject to any terms imposed as aforesaid, be the same as if

such person or persons had been originally joined in such cause.

32. In case it shall appear at the trial of any action that there	joinder of plaintiffs
Nonjoinder and mis-

has been a misjoinder of plaintiffs, or that some person or persons

may be amended

at the trial, as in cases

not joined as plaintiff or plnintXs ought to have been so joined, and

of amendments of

the defendant shall not, at or before the time of pleading, have given

vcrriances under 3 &

4, Wm. IT., c. 42.

notice in writing that he objects to such nonjoinder, specifying therein the nqme or names of such person or persons, such mis- joinder or nonjoinder may be amended as a variance at the trial, by any Court of Record holding plea in civil actions, and 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 a8 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, intituled

An Act for the further amendment of the law, and the better ad-

vancement of justice," if it shall appear to such Court, or Judge, or other presiding officer, that such misjoinder or nonjoinder was not

f'or the purpose of obtaining an undue advantage, and that injustice

will not be donc by such amendment, ar,d that the person or persons to be added as mfwesaid consent, e i t E 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, o7 that such serson or lsersons consent in manner aforesaid to be sb struckout; and such amkdrnent

: - S made umn such terms as the Court. or Judw. or other

presiding officer b y whom such amendment 'is madeYshall think proper; and when any such an~endrnent shall have been made, the liability of any person or persons, who shall have been added as coplaintiff or coplaintiffs, shall, subject to any terms imposed as

originally joined in such action: Provided that in case any Court, or aforesaid, be the same as if such person or persons had been Judge, or presidinf: officer as aforesaid, shall not think it expedient to permit such varlances, the defendant shall not be entitled to any costs of a nonsuit unless such Judge or presiding officer shall certify that it does not appear that such defendant was aware of such nonjoinder or rnisjoinder bcforc the time of the trial.

33. In case such notice be given, or any plea in abatement of	Upon notice or plea
of nonjoinder of

nonjoinder of n pcrson or persons as coplaintiff or coplaintiffs, in	plaintiffs, proceedings
caseswhere such plea in abatement may bc pleaded, be pleaded by the	may ba amended.
defendant, t l ~ e plaintiff shall be at liberty, without any order, to amend the writ and other proceedings before plea by adding the name or names of the person or persons named in such notice or plea in abatement, and to proceed in the action without any further appearance on payment of the costs of, and occasiorled by

T such

J o i n d e ~ a f p ~ r ~ e s.	such amendment only, and in such case the defendant shall be at
liberty to plead de novo.
Misjoinder of defen-	34, It shall and may be lawful for the Court or a Judge, in the case of the joinder of too many defendants in any action or contract, at any time before the trial of such cause, to order that the name or names of one or more of such defendants be struck out, if it sLaU appear

dantsmay be amended

bofoto ox at trial,

to such Court or Judge that in ustice will not be done by such amend-

ment; and the amendment sha 1 be made upon such terms as the Court i	or Judge by whom such amendment is made shall think proper; and
in case it shall appear at the trial of any action or contract, that there has been s niisjoinder of defendants, such misjoirlder may be amended as a variance at the trial, in the like manner as the mis- joinder 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.

UW. lea in abate- of,,d&ntB, ,- 35. In any action or contract, where the nonjoinder of any persoil or persons as a codefendant or codefendauts has bccn p!&ded

ment nonjoinder in

ceeciings may be

abatement, the plaintiff shall be at liberty, without any order, to

amended.

amend the writ of summons and the declaration by adding the name or names of the person or persons named in suchuplea in abatement as joint contractors, and to serve tlle 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 betweeii the person or persons so named in such plen in abatement and the plaintiff, be ~onsidercd for all purposes as the commencement of the action.

Provision in t ~ ~ c case 3 6. In all cases, after such plea in abatement and am endnmt, if

of subsequent pro-

ceedings against the it shall alppear upon the trial of the action that thc person or

persons named in a

plea in abatement for	persom SO named in such plea in abatement was or were jointly
nonjoinder of defen-	liable with the original defendant or defendants, the original defen-
dants.	dant or dcfcndants shall be entitled as against the plaintiff to the

it shall appear that the original defendant or any of the original

costs of such plea in abatement and amendment; but if at aucll trial

defendants is or are liable, but that one or more of the persons named in such plen in abatement is or are not liable as a contracting party or parties, the plaintiff shall nevertheless be entitled to judg- ment against the other defendant or d6fendauts 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 narncd by him in such plea in abatement.

.

37. I n

37. 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	Joinder ofparties.
Joinder of claims by husband and wife
coplaintiff, it shall be lawful for the husband to add thereto claims	with claims in right
in his own right; and separate actions brought in respect of such	of husband.
claims mar be consolidated, if the Court or a Judge shall think fit: Provided that, in 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 Euacted Joinder of cawes of action.

as f o l 1 0 ~ ~ :

38. Causes of action, of whatever kind, provided thcy be by and	Different causes of
action may be joined,

against the same parties and in the same rights, may be joined	but separate trials
in the samc suit; btlt this shall not extend to replevin or ejectment;	may be ordered.
but the Court or a Judge shall have power to prevent the trial of different causes of action together, if such trial would be incxpe- dient, and in such case such Court or Judge may order separate recorcls to be made up and separate trials to be had.
And for the deterinination of questions raised by consent of the parties without pleading-Be	Questions by con-
s m t u&AoutpEead-

it Enacted as follows: ing,

39. When the parties to zta action are agreed as to the question or questions of fact to be decided between them, they may, after	Questions of fact may,
after writ issued by
c s a n d lcave of
writ issued a id before judgment, by consent and order of a Judge,	a Judge, be raised
(which order any Judge shall have power to make, upon being	without pleadings.
satisfied that t l ~ c parties have a Conn$de intcrcst in the decision of such c~uestion or questions, and that the same is or are fit to be tried) proceed to the trial of any question or questions of fact with- out formal pleadings; and such question or questions may be stated fbr trial in, and issue in, the form contained in the Schedule A, to this Act annexed, marked No. 5; and such issue may be entered for trial, and tried accordingly, in the same manuer as any issue joincd in any ordinary action, and the proceedings in such action

jurisdiction of the Court, as in other actions. anif issue shall be under and subject to the ordinary control aud 40. The parties may, if they think fit, enter into m agreement in Apemcnt m y be entered into for the

writing, and which shall be embodied in the said or any subsequent

payment of money

and costs, according

order, that upon the finding of the jury in the affirmative or nega-

to the result of the

tive of such issue or issues, a sun1 of money, fixed by the parties or

issue.

to be ascertained by the jury upon a question inserted in the issue for that purpose, shall be paid by one of such parties to the other

of them, either with or without the costs of the action.

41. Upon the finding of the jury in any such issue, judgment may tered according to Judgment to bc cn-

be entered for such sum as shall be so agreed or asccrtained as	the agreement, and
aforesaid, with or without costs as the case may be, and execution	execution issued
forthwith, unless
luny issue upon such judgment forthwith, unless oQerwise agreed,	stayed.
or unless the Court or a Judge shall otherwise order, for the pur-

pose

B.u*	&Y	pose of giving either party an opportunity for moving to set aside
the verdict, or for a new trial.
pleading.

consant

Proceedings upon 42. The proceedings upon such issue may be recorded at the

issue may be recorded.	instance of either party, and the judgment whether actually recorded or not s h d have the same effect as any other judgment
in a contested action.
be rgised after writ

Questions of law may 43. The parties may, after writ issued and before judgment, by

isened, bp C -consent and order of a Judge, state any question or questions of law &C., without pleadinggg in a special case for the opinion of the Court without any pleadings.

Agreement as to p v - 44. The arties may, if they think fit, enter into an agreement in

writing, an if which shall be embodied in the said or any subsequent

merit

costs according ofmoney to

judgmentuponspecial order, that upon the judgment being given in the affirmative or	C8Se. 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 witLout 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.
event, unless other-
costs to follow the 45. In casc no agrcement shall be entered into as to the costs of
wise agreed. such action, the costs shall follow the event and be recovered by the successful party. Readings in And with respect to the language and form of pleadings in general-Be
general. it Enacted as follows:
Fictitious andneed-
less averments not to 46. All statements which need not bc proved, such as the state- goods or their value; the statement of sots of trespass having been
be made. ment of time, quantity, quality, and value, where these are immaterial;

the statement of losing and finding, and bailment in actions for

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 indebitaatus counts, and mutual promises to perform agreements; and all statements of a like kind, s l d l be omitted.

Judgment upon do- 47, ithe her party may object by demurrer to thc pleading of the	rnurrer to be given	.acor&ng to the very opposite party on the ground that such pleading does not set forth
light of the C W ~. sufficient ground of action, defence, or reply, as the case Gay be; 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 ap ear unto them, without regarding any imperfection, omission, iefeot in, or lack of form; and no judgment

shall be arrested, stayed, or reversed, for any such imperfection,

smission, defect in, or lack of form.

48. No

Pleadiags in

48. No pleading shall be deemed insufficient for any defect which grnemL

Objections by W R Y of

could heretofore only be objected to by special demurrer. spceial den~urrer take11 away.

49. If any pleading be so framed as to prejudice, embarrass, or Pleadingsframsd to

delay $he fair trial of the action, the opposite party may apply to the said Court or a Judge thereof to strike out or amend such pleading, and the said Court or any .Judge thereof shall make such order respecting tbe mme, and also respecting the costs of the application, as such Court or Judge shall sec fit.

50. Rules to declare, or declare peremptorily, and rules to reply Fonr dn).s1 notice s, I ~.

and plead subsequent pleadings, shall not be necessary; and instead ~~~~~~~ thereof a notice s l d l be substituted, requiring the opposite party to rcjjoin. declare, reply, rejoin, or as the case may be, within four days,

otherwise judgment; such notice to ha delivered separately or endorsal on any pleading to w l h h the opposite party is required to reply, rejoin, or as the case inay be.

51. Every declaration - a~gd o thedeading sl~all be entitled of the Pleadings to be datcd , and entered as of

proper Court, scKf the d i y of the niznth .---- nudXZ y e ~ i i & n the of plcsding,

same was e d e d, ad-s ld l 'h far no other t m e or date; and every ".*.. order to tile

contrary.

declamtion anx t l l e r pleading sllslll also be entered on the record 111ndc up for trinl uu&r the &te of the day of the month and year wlren the smile rcspwtivdy took place, and~wi~hout reference to any other time ui. clnte, unless ctGrwlsc specially ordered by the Court or n Jutigc?.

5 2, I t shall not be necessary to make profert of any deed or Profert and OF a 1s c

other docliincnt mentioned or rclicd on ie any pleadings; and if =

profert sha11 be made, it shall not entitle the opposite pnrty to crave	\
oyer of or set out upor1 oyer such deed or other document.

53. A party pleading in answer to any pleading in which any Document may be

document is mentioned or referred to, shall be at liberty to set out . set forth and be con-

sdered a part of the

the whole or such part thereof as may be material, and the matter pleading in which it	so set out shall he decmed and taken to he part of the pleading in is set forth.
whicll it is set out. i

64. I t sliall be lawful for the plaintiff or defendant in any action Performance of con-

ditions, precedent may

to aver performance of conditions precedeut generally, and the h, al~e,a ,er,,al~,

opposite p:vty shall not h n such averment g~~ierally, but sliall

speciy in ill(? pleading + t ie condition or conditions p r e c e w l e .-

performance uf whicll he in tei1aST0- contest.

h d particulars of' denland-Ee with 1q:1~d to the time and manner of declming, and to Reclarntions.

it Euacted as follows: l

55. A plai-:tiff din11 be deemed out of Court, unless lie declare Plaintiffto declare within a year. 'r

within one y~:! f m nftcr the writ of summolls is returmbk.

56. Every dt:clxution shall con~mence as follows, or to the like F o m s of commence- meot, &C., of declara-

U effect :- tion,

Decla~ations.	effect :-" [Venue.] A.B., by E.F., his attorney {or in person as
the case mav be1 sues C.D. for [here state the cause of action]" and
shall conelide i s follows, or toLthe like effect :-"and the
claims & [or if the action is brought to recover specific goods, the plaintiff clainls a return of the said goods or thcir value, and

F & for their detention.] "

Commencement of

declaration after plea	57. In all cases in which, after a plea in abatement of the non- joinder of another person as defendant, the plaintiff shall, without having proceeded to trinl on an issue thereon, covnmeuce 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 abatcment 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 :-L< [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.
of nonjoinder.
has heretofore pleaded in abatement to nonjoinder of the said G.I-I.
for" &C.

DecleratiOn for l i b

or slander. 58. Tn actions of libel and slander, the laintiff shall be at

liberty to aver that the words or matter corny P aiued of were used

in a defamatory sense, specifyipg _such defamatory s q e without

any prefatory averment to shoG how 'such' W O ~ & 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 whcre tbc war* or

matter set forth, with or without the alleged meaning, show a cause	-
o_f action+ the declaration shall be sufficient.

Pleading. And as to pleas and subsequent pleadings-Be it Enacted as

follows:

Hules to plead and 59. No rule to plead or demand of plea shall be necessary, and

Of plea

abolished.

the notice to plead endorsed on the declaration, or delivered

separately, shall be sufficient.

Time for pleading,

where defendant is

60. In cases where the defendant is within the jurisdiction, the shall be eight days, and a notice requiring the defendant to plead thereto in eight days, otherwise may, whether the

within jYABdi~tion,	L,,	time for pleading in bar, unless extended by the Court or a Judge,
be eight days.
declaration be delivered or filed, be the declaration
or delivered separately.

J

Express color	61. Express color shall no longee'be necessary in any pleading.
libolished.
Special traverses	62. Special traverses shall not be necessary iu a
~omsl
merit and prayer Of

abolished.

commence 63. In a plea or subsequent pleading, it shall not be necessary to

judgment wneces-

use any allegation of actionem non or actionem ulteriss non, or to

the like effect, or any prayer of judgment, nor shall it be necessary

in

in any replication or subsequent pleading to use any allegation of Plcadhg.

precZ~di non, or to the like effect, or any prayer of judgment.

64, NO formal defence s h d be required in a plea, or avowry, or com~nsncemcnt of

cognizance, and it shall commence as follows, or to the like e f f e c t t ~ ~ h e defendant, by, his attorney [or in person, as the case may be] says that [here stnte first defeuce]." And it shall not be necessary to state in a second or other plea, or asowry, or cognizaice, that it is pleaded by leave of the Court, or a Judge, or according to the f o ~ m of the statute, or to that effect; but every such plea', avowry, or cognizance shall be written in a separate para- ,graph 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 &c. defence] ;" or if pleaded to part only, 'then as follows, or to the like effect :-LbAnd for a second [&C.] plea to [stating to what it is pleaded], the defendant says that," &c. ; and

110 formal conclusiou shall Fe necessary to any plea, avomy, cogni-

zance, or subsequent pleading.

65. Any defence arising after the commencemelit of any action p l c a " f m ~ t t e ~ ~ u b ~ ~ quent to nctjon.

shall be pleaded according to the fact, without any f'orrnal corn- - - -

mencement 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 of matter arising before actioa.

P1ri8 darrein

66. In cases in which a plea puis darrein continuance has here- tofore been pbdable in b u m or at lrzisi prius, the same defence may cont iuunnc~, when

IWW to be atlcd..

be pleaded, with an allegation that the matter arose after the last

pleading; and such plea may, whcn necessary, be pleaded at nisi prius between the first day of December and fourth day of February; but no such ples shall be ~llowecl unless accom- panied by an affidavit that the matter arose within eight days nest before the pleading of such plea, or ualcss the Court or a Judge

shall otherwise order. Payment into Cowf

67. It shall be lawful for the defendant in all actions (except in . ccrt:;in :~ctione

actions for assault and batterv. false imprisonment, libel, slander, malicious arrest, or prosecutio< &mina1 cLnversatioi, or debauching: of the plaintiff"^ 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 clefcndants 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 &lajcsty, in- tituled L4An Act to amend the Law respecting defamatory words and libel."

68. Where money is paid into Court, such payment shall be Pa~mcntintoCourt- how plendcd.

pleaded in all cases as near as ma'y be_ in the following form,

mututis m~tandis:-'~ The defendant by his attorney [or in person,

&c*]

Pleading. - &C.] [if pleaded 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 satistj7 the claim of the plaintiffwin	respect of the matter
herein pleaded to."

NO order to pay 69. No rule or Judge's order to pay money into Cowt shall be

nloney into	necessary, except in the case of m e or more of several defendants,
and the money shall be paid to or to the credit of the proper officer
of the Court, who shall give a receipt for the amount in the margin of the plea, and the said sum shall be paicl out to the plaintiff or his attorney, on demand.

Proceeding plain., 70.

The plaintiff, after delivery of a plea of payment of money into Court, shall be at liberty to reply to the same by accepting the sum so paid into Court, in full satisfaction and discharge of the cause of

pa~lOent

into Court.

m - action in respect of which it has been paicl in, and he shall be at liberty in that case to tax his costs of suit, and in case of nonpxy- ment 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 wh&h the plea is pleaded; and in the eveut of an issue thereon beiug found for the defendant, the defendant shall be entitled to judgment and his costs of suit.

Pleas to actions aar- 7 l. VrThereas certain causes of action may bc considered to

taking ot' contract both and of wrong. bkach partake of the character both of breaches of contract and of wrongs, and doubts may arise as to the form of pleas in such actions, and it is expedient to preclude such doubts, any plea which shall be good in substance shall not Fe objectionable on the ground of its treating the declaration cither as framed for a breach of contract or for a wrong.

7 2. Pleas of payment and set off, aud a11 other pleading-S capable of

Payment, set off, and

other pleadinas, which being construed distiibutively, shall be taken distribntively, and if	can bc construed dis- issue is taken thereon, and so much thereof as shall be sufficient
tribUiiYjlY shjlli brl
SO construed. answer to part of the causes of action proved shall be fouud true by the jury, a verdict shall pass for the defendant in 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 as shall not be so answered.
Travcrso of the
declaration. 73. A defendant may either traverse generally such of the facts contained in the declaration as might have been denied by m e plea, or Inay select and traverse separately any material allegation in the declaration, although it might have been included m a general traverse.
Traverse of plea or
subsequent pleading 74. A plaintiff shall be at liberty to traverse the whole of RV
of defendant. plea, or subsequent pleading of the defendant by a general denial, or admitting some part or parts thereof, to deny all the rest, or to deny any one or more allegations.
Tra~erMofreplication
or subsequent pleading 75. A defendant shall in like manner be at liberty to deny the
of the plaintid whole

&ole or part of a replication, or subsequent leading of the Pleading.

plaintiff.

76. Either party may plead in answer to the plea or subsequent Joinder of issac.

of his adversary that he ioins issue thereon, which joinder .yL - -- 12- --

of issue may be as follows, or to the like effect :--"The ilaintiff 'oins issue upon the defendant's first [h., specifying what or what

part plea ;" " The defendant joins issue upon the plaintiffs of joinder of issue shall be deemed to be a denhl of the substance ,-/

"r	replication to the first [Src., speeify7ngwhatI plea ;" and such form
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 somc part of' it, the plaintiff may add
a joinder of issue for the defendant.

77. Either party may, by leave of the Court or a Judge, plead demurring As to pleading together.

and demur to the same pleading at the same time, upon an 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 respectively true in substnnce and in fact; and that he is firrther 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.

78. The plaintiff in any action may, by leave of the Court or a Several be pleaded matters at any may

Judge, plead, in answer to the plea or the subsequent pleading of stage of thepleadinge.

the defendant, as many several matters as he shall think necessary 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 affi-	davit of the party making such application or his attorney, if	required by a Court or Judge, to the effect that he is advised and
verily believes t)hat he has just ound to traverse the several
matters proposed to be traversed by F im, and that the several matters sought to be pleaded as aforesaid by way of confession and avoid-
ance are respectively true in substance and in fact: Provided, that the costs of any issue either of fact or law, shall follow the finding or judgment upon such issue, and be adjudged to the suceesaful
party, whatever may be the result of the other issue or issues.

79. No rule of Court for leave to lead several matters shall be J ndge's order to plead several matters suffi-

uecesssry where a J~dgc'a order has been made for the same cient.

purpose.

80. All objections to the pba&ng of several pleas, replications, or mgs Objectiolu to be heard to plead- on

subsequent pleadings, or several avowries or cognimnces, on the ~ ~ ~ m o n s p a d

V ground several matters.

Reading,

ground that they are founded on the same ground of answer or.

defence shall be heard upon the summons to plead$everal:matters.

certain

pleaded together

8 1. The following pleas, or any two or more of them may be pleaded together as of course, without leave of the Court or a

without leave. -

Judge, that is to say-a plea denying any contract or debt alleged

in the declaration, a plea of tender as to part, a plea of' the:s&tub

of limitati ns, set off, bankruptcy of the defendant, discharge under

an nso vent Act. dene administrnvit Drmter. infancv. coverture. +	payment, accord k6d satisfaction, releaie, not iuilty, a' denial that
the property an injury to which is ZiiG$ained of is the plaintiff's, leave and licence, son assault demesne, and any other pleas which the Judges of the said Court shall by any rule or order, to be by them from time to time made in term or vacation, order or direct.

Signature of counsel.	8%. No signature shall be required to any pleading.
*

For $eading several

matters without leave,	83. Except in the cases herein specifically provided for, if either
judgment mtty be

signed.	party plead several leas, replications, avowries, cognizances,
_or w r r m - E a T r - - f i T lnw wrt ou leave of the Court or a Judge, the
cipposite* be at liberty to sign judgment: Provided that

/-	sucG-jGdgmeni-may be seFns"l* Gy tfJiiFc:ourt orTJudge, upon an (zffid&it f merits and such terms as to costs and otherwise as-
they -+ or he may thln fit.

One new assignment

only allowed In re-	84. One new assignment only shall be pleaded to any number of consistent with and confirmed by the particulars delivered in the action if any, and shall state thatVthe pl&ntiff proceeds for causes of action different from all those which the pleas profess to justify, or for an excess over and above what all the defences set up in suck pleas justify, or both.
spect of the same	pleas to the same cause of action; and such new assignment shall be
cause of action.

Rcas not to be 85. No lea which has already been pleaded to the declaration

repeated	shall be p eaded to such new assignment, except a plea in denial, P	unless by leave of the Court or a Judge; and such leave shall only
be granted upon satisfactory proof that the repetition of such plea is essential to a trial on the merits.

Born of demurrer, 86.

The form of a demurrer, except in the cases herein specifically dant by his attorney [or in person, &C., or p l a i n t q says that the declaration [or plea, &C.] is bad in substance," and in the margin thereof some substantiaI matter of law intended to be argued shall

and joinder in de-	provided for, shall be as follows, or to the like e m i The defen-
be stated; and if any demurrer shall be delivered without such
statement, or with a frivolous statement, it may be set aside by the
Court or a Judge, and leave. may be given to sign judgment as for
want of a plea; and the form of a joinder in demurrer shall be as- follows, or to the like effect The plaintiff [or defendant] says that the declaration [or plea, &C.] is good in substance."

87. Where an amendment of any pleading is allowed, no new pending. W

notice to plead thereto shall be necessary; but the opposite party

&all be bound to plead to the amended pleading within the time Timo	after amendment.	for pleading
specified in the original notice to plead, or w i t h two days after amendment, whichever shall last expire, unless otherwise ordered by the Court or a Judge; and in case the amended pleading has been two days after amendment, or within such other time as the Court leaded to before amendment, and is not pleaded to de novo within
or a Judge shall allow, the pleadings originally pleaded thereto shall standzand be considered as pleaded iu answer to such, amended pleading.

And whereacit is desirable that examples should be given of the Exa+esof

statement of causes of action, and of forms of pleading-Be	it pleadhg-
Enacted asl follows:

88. The forms contained in the Schedule B to this Act annexed, Form in Schedule

shall be sufficient, and those a n d m m s nmy be used with m"

such modifications as may be necessary to meet the facts of the 2

case; but nothing herein contained shall render it erroneous or

+

irregular to depart from the letter of such forn~s, so long as the

substance is expressed without prolixity.

And with respect to judgment by default, and the mode of as- Judgment &-

certaining the amount to be recovered thereupon-Be it Enacted as faUN- and

tarining amount &F

follows: be recovered. -

89. No rule to c o n ~ t t e shall be necessary or used; but nothing Rule to C O ~ P U ~ C abolished. 1 4,

in this Act contained shall invalidate any proceedings already taken or to be taken by reason of any rule to compute made, or applied for, before the commencement of this Act.

90. In actions where the plaintiff seeks to recover a debt or Judgment by default for kguuakd de-

liquidated demand in money, judgment by default shdl be fi& m a n d s g d.

91. In actions in which it shall appear to the' Court or a Judge xnclniru o f d a m w s

that the amount of damages sought to be recovered by the plaintiff may be directed to take place before the

Is substantially a matter of calculation, it shall not be necessary to Master.

issue a writ of iuquiry, but the Court or a Judge mnv direct that

the amount for which final judgment is to be signed shall be ascer-

tained by the Master; nnd the attendance of witnesses and the pro-

duction of documents before such Master may be compelled by

subpoena, in the same manner as before a jury upon a writ of

inquiry; and it shall be lavful for such Master to adjourn tllc

inquiry from time to time as occasion may require, and the Master

shall endorse upon the rule or order for referring the amount of'

damages to him the amount found by him, and shall deliver the

mle or order with such endorsement to thc plaintiff; and such and

the like proceedings may thereupon be had as to taxation of costs,

signing judgment, and otherwise, as upon the finding of a jury upon

a writ of inquiry.

92. Ixs

Jut-lgment by de-

faUzG ad clScer- 92. In $1 action8 where the plaintiff recovers a sum of money,

tainiy u w w to	be recovered, the mounk to which he is entitled may be awarded to him by the
Judgment for money judgment generally, without any distinction being therein made as
a-ab without dis- to whether such sum is recovered by way of s debt or damages.
tinction between debt
and damages. 93. Nothing in this Act contained shall in any way affect the
Saving as to certain d s i o n s of a certain Act of P a r b e n t passed in the Session of

KiWTliament holden in the eighth and ninth years of the rei n of His

Majesty King Williarn the Third, intituled " An Act for t e better a

preventing frivolous and vexatious suits," as to the assignment of

suggestion of breaches, or as to judgment for a penalty as a security

for damages in respect of further breaches.

Judgment f o ~ not And with respect to judgment for default in not proceeding to

P ~ ~ ~ w trial-Be ~ o it Enacted as follows:

~ ~ ~ ~ L

s t a t ~ t e l *, ~ - I I + 17,

as to judgment in case 94. The Act passed in the fourteenth year of the reign of His the same relatel;' to iudgmknt, as in the case of a Lonauit, shall no

g uonnoit, repealed. Majesty weo or e the Second i w b ' ~ n Act to prevent incon-

seniences arising from delays o causes after issue ioined," so far as S"----fl

longer have the force& &W in this Province, ~ c e p t as to pioceedings taken or commenced thereupon before the commencement of this Act,

Proceeding, where	plsiutiff neglects to 95. W'here any issue is or shall be joined in any cause, and the
bring on the cause to plaintiff has neglected or shall neglect to bring such issue on to be
be tried. tried, that is to say-in town causes where issue has beeu or shall be joined in, or in the vacation before, any term, and the plaintiff has neglected or shall neglect to bring the issue on to be tried dur- ing the following term, whether the plaintiff shall in the meantime h v e given notice of trial or not, the defendant may give twenty d q s ' notice to the plaintiff to bring the issue on to be tried a t the sittings next after the expiration of the notice; and if the plaintiff afterwards neglects to give notice of trial for such sittings, or to proceed to trial in pursuance of the said notice given by the defen- dant, the defendant may suggest on the record that the plaintiff has failed to proceed to trial, although duly required so to do (which

if untrue), and may sign judgment for his costs: Provided, that

suggestion shall not be traversable, but only subject to be set aside

the Court or a Judge shall have power to extend the time for pro.

ceeriing to trial, with or without terms.

Defendmt's fight to 96. Nothing herein contained shad affect the right of a defendant

try upon default, to take down a cause fbr tr ial, after default by the plaintiff to pro- ceed to trial, according to the c o m e and practice of the Court; and if records are entered for trial both by the plaintiff and the defendant, the defendant's record shall be treated as standing next in order after the plainWs record in the list of causes, and the trial of the cause s h d take place accordingly.

Admissioa of And with respect to the admission of documents-Be it Enacted

do~u-. as follows :

A M ~ n	of d ~ c n -	97.	Either party m y call on the other party, by notice, to admit
mpnk

any

any document, saving all just exceptions; and in case of refusal or AdmBsion f

neglect to admit, the costs of proving the doeume~lt shall be paid by d0c?4ments-

the party so neglecting or refusing, whatever the result of the cause may be, unless, at the trial, the Judge shall certify that the refusal to admit was reasonable, and no costs of proving auy document shall be allowed unless such notice be given, except in case where the ornissioi~ to give the notice is in the opiriion of the Master a saving of expense.

98. An affidavit of the attorney in the cause, or his clerk, of the proof ofadmi8gioa.

duc signature of any admissions made in pursuance of snch' notice, and anuexed to the affidavit, shall be in all cases s ~ d k i e n t evidence of such admissions.

service of any notice to produce, in respect of which notice to admit daco. 99. An affidavit of the attorney in the cause, or his clerk, of the ProofofnoticetoproL

shall have been given, and of the time when it was served, with a	.
copy of such notice to produce annexed to such affidavit, shall be sufficient evidence of the service of tbe original of such notice, aiid
of the time when it was served.
100. In every case of execution, the party entitled to execution may levy the poolidage fees a'nd expenses oi' thc execution over and EX,,,,	xecution. --

or..cc.-

above the sum recovered. tion.

10 1. &4 writ of execution issucd after the commencement of this Writs of execution to remain in force for

Act, if unexecuted, shall not remain in force for more than one year Olle and

teste

from the of such writ, unless renewed in the manner herein- mewed if necessary. renewal, or by such party giving a notice in writing of renewal to

after provided; but such writ may, at any time bcforc its expiration,

be renewed by the party issuing it, for one year from the date of

such renewal, and so on from time to time during the contirmnnce

of the renewed writ, either by being marked with the seal of the

like seal of the Court, and s writ of executim so renewed shall have such Sheriff, signed by the party or his attorney, and bearing the effect, and be entitled to priority, according to the time of the original delivery thereof.

102. The productioxl of a writ of excct~tion, or of the notice Pr-duction of re-

rcnewing the same, purporting to be marked with such seal, showing newed writ evidence

of renewal.

the same to have becn renewed according to this Act, shall be

sufficient evidence of its having been so renewed.

103. A written order under the band of the attorney iu the cause. Sheriff or naolcr mnv

by whom any writ of capias ad sa&y%ciendunz shdl have beell ~ ~ & h $ ~ ~ o ~ ~ ~ ~ ~ $

issued, shall justify the Sheriff, gaoler, or person in whose custody in the cause.

the party nmy be under such writ, in discharging such party, unless the party for whom snch attorney professes to act shall have given written notice to the contrary to such dheriff, gaoler, or person in

W whose

E~ecoltion.	whose custody the opposite party may be; but such discharge shall not be a satisfaction of the debt, unless made by the authority of the creditor; and nothing herein contained shall justify any attorney in giving such order for discharge without the consent of his client.
Prccecitingsforclwg-	104. It shall not be necessary in any case to sue out a writ of already in the prison of the Court, but such person may be so charged in execution by s Judge's o~der, made upon affidavit, that judgment has been signed, and is not satisfied; and the service of such order upon the keeper of the prison for the time bebg shall have the effect of a detainer.

in a

person already in	habeas corpus ad sutisfciendurn to charge in execution a person
primafthe Court.

Proceedings to And with re~pect to proceedings for the revival of judgments and

revire. other proceedbgs by and against persons not parties to the record-

- 3 Re it Enacted as follows:

Execution in six	105. During the lives of the parties to a judgment, or those of them during whose lives execution may at present issue within a year and a day without a scire facias, and within six years from the recovery of the judgment, execution may issue without a revival of the judgment.
yews
Judgment to be re-

vived by writ, or with 106. In cases where it shall become necessary to revive a judg

leave of Court or	rnent by reason either of lapse of time, or of a change by death, or
Judge, by suggestion.	otherwise, of the parties entitled or liable to execution, the parbv alleging himself tobe entitled to execution may either sue out 8: wr;t of revivor in the form hereinafter mentioned, or apply to the Court or a Judge for leave to enter a suggestion upon the roll to the effect that it manifestly appears to the Court that such party is entitled to have execution of the judgment, and to issue execution there- upon; such leave to be granted by the Court or a J u d ~ e upon a rule to show cause, or a summons to be served according to the present practice, or in such other manner as such Court or Judge may direct, and which rule or summons may be in the form con- tained in the Schedule A to this Act annexed, marked No. 6, or to
the like effect.
Proceedings upon
npplication for sug-	107. Upon such application, in case it manifestly appears that Judge shall allow such suggestion as aforesaid to be entered in the form contained in the Schedule A, to this Act annexed, marked No.
gestion to revive	the party making the same is entitled to execution, the Court or a
judgment.
7, or to the like effect, and execution to issue thereupon, and
shall order whether or not the costs of such application shall be paid to the party making the same; and in case it does not mani- festly SQ appear, the Court or a Judge shall discharge the rule or dismiss the summons, with or without costs: Provided nevertheless, that in such lastmentioned case the party making such application
shall be at liberty to proceed by writ of revivor, or action upon the
judgment.

108. The

108. The writ of revivor shall be directed to the party called Pmeediys to

upon to show cause why cxecution should not be awarded and shall -

bear teste on the day of its issuing; and after reciting the reason Writ of rcrvivor and

that such writ has become necessary, it shall call upon the party to p r o c o e d i ~	thereon
whom it is directed to appear within eight days after service thereof,
in the Supreme Court to shew cause wh the party at whose
instance such writ has been issued, shou T d not have execution	against the party to whom such writ is directed, and it shall give
ioticc that, in default of appearmce, the party issuiug such writ may proceed to cxecution; and such writ may be in the form contained in the Schedule A, to this Act annexed maxked No. 8, or to the like effect; and may be proceeded upon, whether in term or vacation, in the same manner as a writ of summons; and the pleading4 and proceedings thereupon, and the rights of the parties respectively to costs shall be thc same as in an ordinary action.

109. All writs of scire facia8 issued out of the Supreme Court Writs of scirefaeiaa " I

against bail on a recognizance, ad audieadum errores, against tested, diRcted,	in other casea to be
members of a Joint Stock Company or other body, upon a P	roceeded upon, in

judgment recorded against a public officer or other person, and as like manner.

representing such company or body, or against such company or

body itself; for or against a husband to have execution of a

judgment for or agains<a wife; for a restitution after a, reversal in

error; upon a suggestion of further breaches after judgment for

any pena'l sum, pursuant to the Statute passed in the Session

holden in the eighth and ninth years of the reign of King William

the Third, intituled '' An Act for the better preventing frivolous

and vexatious Suits," shall be testcd, directed, and proceeded upon

in like manner as writs of' revivor.

110. Notice in writing to the plaintiff, his attorney or agent, Apwarance to writ

shdl be sufficient appearance to a writ of revivor. of revivor.

111. A writ of revivor, to revive a judgment less than ten years AB to issue of writ OF revivor upon judg-

old, shall be allowed without any rule or order; if more than ten ,,,, , , , thm ten

years old, not without a rule of Court or a Judge's order; nor, if years old.

more than fifteen, without a rule to shew cause.

And with respect to the effect of death, marriage, and bankruptcy Death, marriage, and hankwptcy.

upon the proceedings in an action-Be it Enacted as follows:

112. The death of a plaintiff or defendant shall not cause the Action not to abate

action to abate, but it may be continued as hereinafter mentioned. by death

113, If there be two or more plaintiffs or defendants, and one or Proceedicgs in case of death of one or

more of them shall die, if the cause of such action shall survive to more of several plain-

the surviving plaintiff or plaintiffs, or against the surviving de- tiffs Or

fendant or defendants, the action shall not be thereby abated; but

such death being suggested upon the record, the action shall proceed

at

Death, m a r e e, at the suit of the surviving plaintiff or plaintiffs against the sup-

ad banknrpt~- ~ i v i n g defendant or defendants.

Proceeding in case of	114. In case of the death of a sole plaintiff, or sole surviving plaintiff, the legal representative of such plaintiff may, by leave of the Court or a Judge, enter a suggestion of the death, and that he
sole plaintiff.
is such legal representative, and thc action shall thereupon proceed;
and, if such suggestion be made before the trial, the truth of' the suggestion shall be tried thereat, together with the title of deceased plaintiff, and such judgment shdl follow upon the verdict in hvor of or against the person making such suggestion, as if such persol1 were originally the plaintiff.
Proceeding upon

death of sole, or sole 115. In case of the death of a sole defendant, or sole surviviug

surviving, defendant.	defendant, where the action survives, the plaintiff may make a suggestioh, either in any of the pleadings, *if the cause has not
* -	arrived at issue, or in a copy of the issue, if it has sb arrived, of the death, and that a person named therein is the executor or adminis- trator of the deceased; and may thereupon serve such executor or administrator with a copy of the writ and suggestion, and with n notice, signed by the plaintiff or his attorney, requiring such ex- ecutor or administrator to appear within eight days after service of the notice, inclusive of the day of such service, and that in default of his so doing the plaintiff may sign judgment against him as such exccutor or administrator; and the same proceediugs may be had and taken in case of nonappearance after such notice, as upon a w i t against such executor or admi~listmtor in respect of the cause for which the action was brought; and in case no pleadings have taken placc before thr: death, the suggestion shall form part of the declaration, and the declaration and suggestiou may be served together, and the new defendaut sllall plead thereto at the sanw time; and in case the plaintiff shall have declared, but the defendnut shdl not have pleaded before the death, the uem defendant shall plead at the same time to the declaration and suggestion; and in
way of denial, or such plea as may be appropriate to and bc rendered case the defendant shall have pleaded before the death, the new defendant shall Fe at liberty to plead to the suggestion, only by
necessary by his character of executor or administrator, unless by leave of the Court or a Judge, he should be permitted to plead fresh matter in answer to the declaration; and in case the defendant shall have pleaded before the death, but the pleadings shall not have arrived at issue, the new defendant, besides pleading to the sugges- tion, shall continue the pleadings to issue in the same manner as the deceased might have done, and the pleadings upon the declaration and the pleadings upon the suggestion shall be tried together; and in case the plaintiff shall recover, he shall be entitled to the like judgment in respect of the debt or sum sought to be recovered, and in respect of the costs prior to the suggestion, and in respect of the costs of the suggestion and subsequent thereto, as in
an action originally commenced against the executor or adminis-
trator,

116, The

116. The death of either party between the verdict and the Death, marriage,

judgment, shall not hereafter be alleged for error, so as such judg and knAmptc?+

ment be entered within two terms after such death. Death between ver-

dict and jndgmmt.

117. If the plaintiff in any action happen to die after an inter- Proceedings in rase

locutory judgment and before a final judgment obtained therein, ~ ' c $ ~ ~ ~

the said action shall not abate by reason thereof, if such action. final judgment.

might be originally prosecuted or maintained by the executor or

administrator of such plaintiff; and if the defendant die after such

interlocutory judgment and before find judgment therein obtained,

the said action shall not abate, if such action might be originally

prosecuted or maintained against the executor or administriator of

such defendant; and the plaintiff, or if he be dead, after such inter-

locutory judgment, his executors or administrators shall and may

liave n writ of revivor, in the form contained in the Schedule A, to

this Act amexed, marked No. 8, or to the like effect, against the

defendant, if living after such interlocutory judgment, or if he be

dead, then against his executors or adnhiistrators, to show cause

why damages in such actioi~ should not be assessed and recovered

by him or them; and if such dcfeadant, his executors, or adminis-

trators, s l d appear at the return of such writ, and not show or

allege any matter sufficient to arrest the find judgment, or shall

make default, s writ of inquiry of darnag-ea shall be threupon

nwnrdcd, or tllc amount for which final judgment is to be signed

shall hc referred to the Master or to one of 'the Masters of the Court; and upon the of the writ, or delivery of the order, with the amount endorsed theeron, to the plaintiff, his executors, or adminis- trators, judgment final shall be given for thc said plaintiff; llis

executors or administrators, proiikcutiug such writ of reviver

against such defendant, his executors, or administrators respectively.

cause the action to ahnte, but the action may, notwithstanding, be action. 11 8. The marriage of a woman, plaintiff or defendant, shall not Marriage not to abate

proceeded with to judgment; and such j u d p e n t may be executed

against the wife alone, or by suggestion or writ of revivor pursuant

to this Act, judgment may be obtained against the husband and

wife, and execution issue thereon; and in case of a judgment for the wife, executiou may be issued thereupon by the authority of the l~usbaiid without any writ of revivor or suggestion; and if in any such action the wife shall sue or defend by attorney appointed Iry her when sole, such attorney shall have authority to continue the action or defence, unless such authority be counternlanded by the husband, and the attorney changed according to the practice of the Court.

11 9. The bankruptcy or insolvency of the plaintiff h any action Bankruptcy and in- solvency of'plamtiff-

which the assignees might maintain for the benefit of the creditors ,,,,	,,
decline to continue, and give security for the costs thereof upon a
shall not be pleaded in bar to such action, unless the assignees shall action. able time as the Judge may order, but the proceedings may be

X stayed

Death, n o ~ k a q, stayed until such election *is made; and in case the assiguees

~*d6anRmptly. neglect or refuse to continue the action, and give such security

within the time limited by the order, the defendant may, within

eight days after such neglect or refusal plead the bankruptcy.

Arrest of judg- And with respect to the proceedings upon motions to arrest the judgment, and for judgment non obstante veredicto-Be

ment, and judg- it

ment non obstante	Enacted as fo110w~	:
veredicto.

Upon motion in ar-	120. Upon auy motion made in arrest of judgment, pursuant to liam the Fourth, intituled
rest of judgment, pur-
suant to l, Wm. IV.,	the Statute passed in the first year of His late Majesty King Wil-

An Act for the more speedy judgment

c. 7, or for judgment

non obstante veredicto

omitted facts may, by	and execution in actions brought in His Majesty's Courts of Law
leave of the Court, be	at Westminster, and in the Court of Common Plcas of tlie County
suggested.	Palatine of Laucaster, and for amending the law as to judgmcnt on a cognovit actionem in cases of Bankruptcy," or for judgment non
obstante vercdicto by reason of the non-avermcnt of' some alleged
material fact or facts or material allegation, or other cause, the party, whose pleading is alleged or adjudged to be therein defective, may, by leave of the Court, suggcst the existence of the omitted fact or facts or other matter, which, if true, would remedy the alleged defect; and such suggestion may bc pleaded to by the opposite party within eiglt days after notice thereof, or such further time as the Court or a Judge may allow; and the proceedings for trial of any issues joined upon such pleadings shdl be the saim as in an ordinary action.
Jlldgment to
result uf suggestion.	12 l. If the fact or facts suggested be admitted, or found to he true, the party suggesting shall bc cntitled to such judgment as he would have been entitled to if such fact, or facts, or allegation lmd been originally stated in such pleading, and proved or admitted on the trial, togother with the cost of, and occasioned by, the suggestion and proccedings thereom; but if such fact or facts be found untrue, the opposite party shall be entitled to his costs of, and occasioned by, the suggestion and proceedings thereon, in addition to any

NO. $.--Fonar OF WRIT OF REVIVOR.

Victoria, by the Grace of God, &C., to E. F. , of greeting. We command you,

that within cigllt days after the service of this writ upon you, incluvive of the day of such service, you appear in our Supreme Court of South Australia, to show cause why A. 3. [or C. D., as executor of the last will and testament of the said A. B,, deceased, or, as the case may be] should not have execution against you [if against a representative, here insert as executor of the last will and testament of deceased, or, as the case may be] of a judgment whereby the said A. B, [or, as the case may be] on the day of in the said Court wover red against YOU [or, a9 the case may

be] 2 arid take notice, that in default of your so doing, the eaid A. B. [or, as the

case may be] may proceed to execution. Witness, &c.

No. 9.-EJECTMENT.

Form of Writ.

Victoria, &C., to X. Y. Z., and all persons entitled to defend the possession of

[describe the property with reasonable certainty] to the possession whereof A.B. and

C., some or one of them, claim to be to have been o p and since the day of

A. D. l8 1 entitled, and 20 eject all o tGr p m e r e f r o m: These are to will and

c b p u, or such of you aa deny the alleged title, within sixteen days after service hewof, to appear in our Supreme Court of South Austrdia, to defend the haid property, or such part thereof, as you may be advised; in defrlult whereof

judgment may be signed, and you turned out of possession^ Witness, &c.

No. 10.--JUDGMENT IN EJECTMENT IN CASE OF NON-APPEARANCE.

I n the Supreme Court. The day of 18 . [Date of writ.]

Sawth .Australia to wit.-On the day and year above written, a writ of our Lady

tbe

the Queen issued forth in this Court in these words, that is to say-Victoria, by the Grace of God [here copy writ) and no appearance has been entered or defence

to the said writ, therefore i t is considered that the said [here insert the names of the persons in whom the title is alleged in the writ] do recover possession of the land in the said writ mentioned, with the appurtenances.

No. 11.

I n the Supreme Court. On the day of AD. 18 .

South Aust~alia to wit.-On the day and year above written, s writ of our Lady

the Queen issued forth of this Court in these words, that is to say-Victoria, by

the Grace of God I here copy the writ] and C.D. has on the day of

appeared by his attorney [or in person] to the said writ, and has defended for

a part of the land in the writ mentioned, that is to say [here state the part], and no appearance has been entered or defence made to the said writ, except as to the said part, therefore it is considered that the said A.B. [the claimant] do recover po;session of the land in the said writ mentioned except the said part, with the appurtenances, and that he have esccution thereof forthwith; and as to the rest let a jury come, &c.

xo. 12.

I n the Srlpreme Court. On the day of A.D.18

South Australia to wit.-On the day and year above written, a writ of our Lady

the Queen issued forth of this Court in these words, that is to say-Victoria, by

the Grace of God [here CO wrig and C,D. has on the day of appeared

by his attorney [or in&& the said writ, and defended for the whole of the

land therein mentioned, therefore let a jury come, &c.

230. 13.

Afterwards, on the day of A.D. before one of the

Judges of the Supreme Court of the Province of South Australia, come the parties within mentioned, and a jury being sworn to try the matters in question bctween the said parties, upon their pth say that A.K. [the clnirnnutJ within mentioned on the d a j of A B - was and still is entitled to the posscssion of the iaxvithin-mentioned, as in the writalleged, there-.

No. 14.

In the Supreme Court. On the day of 18 . [Date of writ.]

Soz~th A~.straEia to wit.-On the day and year above writter?, a writ of our Lady

the Queen issued forth of this Court in these words, that is to say-Victoria, by

the Grace of God [hcre copy the writ] and C.D. has on the day of

appeared by his attorney [or in person] to the sqid writ, and A.B. has discontinued the action, therefore it is considered that the said C.D. be acquitted,

and that fie recover against the said A.B. dE for his costs of defence.

No. 15.

In the Supreme Court. The day of 18 . [Date of writ.]

~S'outh Australia to wit.-On the day and year above written, a writ of our Lady

the Queen issued forth of this Court in these words, that is to say-Victoria, by

the Grace of G9d [here copy the writ] and C.D. has on the day of

appeared by his attorney [or in person] to the said writ, and A.B. has

C e f&B

failed to proceed to trial although: duly required so to do, therefore i t is cousidered

that the said C.D. be acquitted, and that he recovcr against the said A.B. S

for his costs of defence.

No. 16.

I n the Supreme Court. The day of 18 . [Date of writ.]

South Australia to wit.-On the day and year above written, a writ of our Lady

the Queen issued forth of this Court in these words, that is to say-Victoria, by

the Grace of God [here copy the writ] and C.D. has on the day of

appeared by his attorney [or in person] to the said writ, and the said C.D. has confessed the said action [or has confessed the said action as to part of the said land, that is to say (here state the part)], therefore i t is considered that the said

A.13. do recover possession of the land in the said writ mentioned [or of the said

part of the said land] with the appurtenances, and 6: for costs.

No. 17.

I n the Supreme Court. The day of A.D. 18 . [Date of writ,]

South Australia to wit.-On the day and year above written, a writ of our Lady

the Queen issued forth of this Court with a notice thereunder written, the tenor of which writ and notice follows in tbesc words, that is to say [bere copy the writ and notice, which latter may be as follows :-" Take notice, that you will be .required, if ordered by the Court or a Judge, to give bail by yourself and two sufficient sureties conditioned to pay the costs and damages which shall be recovered in this action;"] and C.D. has appeared by his attorney [or in person] to the said writ, and has been ordered to give bail pursuant to the Statute, and has failed so to do, therefore i t is considered that the said [here insert the name of landlord] do recover possession of the laud in the said writ mentioned, with the appus-

tenancee, together with S for costs of suit.

Statement of Causes of Action.--On Contracts.

Goods. Money payable by the defendant to the plaintiff for [these words money payable, &C., should precede money counts, like 1 to 14, but need only be inserted in ,

the first]. Goods bargained and sold by th-to the defendant.

Work and materials, 2. Work done and materials provided by the plaintiff for the defendant at his request.

Noney lent. 3. Money lent by the plaintiffto the defendant.

Money paid.	4. Money paid by the plaintiff for the defendant at his request.
Money received.	J: Money received by the defendant for the use of the plaintiff.
Account stated.	4- Money found to be due from the defendant to the plaintiff on accounts stated
between them.

For nn estate sold. A messuage and lands sold and conveyed by the plaintiff to the defendant.

For goodwill. 4 The goodwill of s business of the plaintiff sold and given up by the plaintiff to the defendant.

For the use of a house 7, The defendant's use by the plaintiffs permission of messuages and lands of the plain tiff.

and land.

Forthe umofa fidery. / , The defendant's use by the plaintiFs permission of a fishery of the plaintiff.

For copyhold fines.	f r. Fines payable by the defendant as tenant of customary tenements of the manor
of to the plaintiff as lord of the said manor for the admission of the defendant
into the said customary tenements.

l7 The

, /

L U

'7- L fs',d, . ,Wf -*-. 2

/'

,.L, The hire of [as the case may be] by the plaintiff let to hire to the defendant.

For hire of goods, & c.

For freight.

,$. Freight for the conveyance by the plaintiff for the defendant at his request, of goods in ships.

The demurrage of a ship of tbe plaintiff kept on demurrage by the defendant. For demurrage.

6	/r.That	tlrc defendant on the	day of	A. D.,	by his promissory note now	Payee against maker
of notc.

overdue, promised to pay to the plaintiff [two] months after dnte, but did not >-p

- -

pay the same. Endorsee against en-

,,$+ That one A.,on &C., [date] by his promissory notc now overdue, promised to pay to

the defendant, or order, 2 [two months after dnte] and the defendant endorsed

dorser of note.

the same to the plaintiE, and the said note was duly presented for payment, and was

disbonored, whereof the defendant had due notice, but did not pay the samc.

/r. That the plaintiff, on &C., [date] by his bill ofexchange now overdue, directed to

Drawcr against ac-

ceptor of bill.

tile defendant, required the defendant to pay to tlie plaintiff & [two months after -

date], and the defendant accepted the said bill, but did not pay the same.

/$.That the defendant, on &C., [date-! by his bill ofexchange directed to A., required Paycc against d r~w er.

A. to pay to the plaintiffs [two] months after dntc, and the said bill was duly prcseGid for acceptance, and 'was -disl~onored, uf which the defendant i r d due; notice, but (lid not pay the same.

v. That the plaintiff and the defendant agreed to marry one another, and a reasona-

ble time for such marriage has elapsed, and the plaintiff has always bcen ready and mamiage.

to marry the defendant, yet the defendaut has neglscted and refused to

marry the plaintiff.

&.That the plaintiff and defendant agreed to marry one another on a day now

elapsed, and the plaintiff was ready and willing to marry the defendant on that day,

yet the defondnnt neglected and refused to marry the plaintiff.

91.That the defendant by warranting a horse to be theu sound 2nd quiet to ridc, sold Warranty of a horse.

the said horse to the plaintiff; yet the said lrorsc was not the11 sourld and quict to ride.

zzl'hat the plaintiff and the defendant agreed by charter party that the plaintiff's For not loading pur-

ship called the [Arkl) sllould with all convenient epeed sail to R. or as near thereto suant to a charter -

as ~11e could salely get, and that the defendant should then load her with a full cargo PartS.

of tallow or other lawful merchandize which she could carry to H., and there deliver on payment of freight 6 per t&; and that t l x defendant shoultl Le allowed ten days fbr loading, and ten days for discharge, and ten days for dflmurrngc, if re- quired, at & per day, and th:it the plaintiff did all things necersnry on his part to entitle him to hnve the agreed cargo londed on board the said ship at R., and thnt

tbe time for so doing has elapsed, yet the dufcndant rnade default in loading the

agreed cargo.

t* 23. That t l ~ c plaintiff let to the defendant a house i n Rindley-street, for seven years, Upon a Icase for rcnt. -

to hold from the day of A.D. at aE a year, payable quarterly, of which

rent quarters are due and unpaid.

!L+, That the plaintiff l ~ y deed let to tllc defendant a house in Hindley-street, to holtl upon covenallt to

for seven years from the day of A. , and the defenrlant by tlre said deed repair.

eovenanted with the plaintiff v7ell and suhstmtially to repair tlie sajd home during the said term [according to the covenant!, yet thc said house was during thc inid

term out of good and substantial repair.

26,That the defendant agreed to sell to the plaintiff certain premises [describe the For performance of

allbject of the agreement] for the sum o f f 400, payable L100 on signing the agree- ~~~~~~~~~~'~,"'

men%, and the residue on the completion of the purchase; but t h t, although the

plaintiff hath paid the sum of X100, and bath been aud still is willing to pay the

remainder of the purchase money, the defendant hath refused to perform L i d agree-

ment, and accordingly the plaintiff claims the performance of the said agree~nent and

8 damages for such refusal.

For wrongs independent c/f Contmct.

That the defendant broke and entered certain land of the plaintiff callccl the Big Trespass to land.

Field and depastured the same with cattle. ' 4

That the d e f e n w t assaulted and beat the plaintiff, gave him into custody to a Assault, b a u e r ~, and

policeman, and caused him to be imprisoned in a police office. false imprisonment.

That the defendant debauched and carnally knew the ~laintiff 's wife. Criminal conversation'

That the defendent converted to his own use or wrongfully dep~ived the plaintiff of Wrongful ~ o ~ ~ c r s i o ~.

the use and possession of the plaintiff's goods, that is to say-iron, hops, household of goods.

[or a5 the case may be l. x.

That

Wrongful detention . That the defendant detained from the plaintiff his title deeds of land, called in

of property, &c. that is to say [describe the deeds].

Diverting water from That the plaintiff was possessed of a mill, and by reason thereof was entitled to the

R mill.

flow of a stream for working the same, and the defendant by cutting the bank of the

said stream, diverted the water thereof away from the said mill.

Infringement of a

That the plaintiffwas the first and true inventor of a certain new manufacture, that is to s a y - o f '(certain improvements in the manufacture of sulphuric acid," and there- upon Her Majesty Queen Victoria, by letters patent under the great seal of England, granted the plaintiff the sole privilege to make, use, exercise, and vend the said inven- tion within for the term of fourteen years from the day of A.D. subject to a condition that the plaintiff should within six calendar months next after the date of the said letters patent cause to be enrolled in the High Court of Chancery, an instru- ment in writing under his hand and seal, particularly describing and ascertaining the nature of his said invention, and in what manner the same was to be and might be per- formed, and the plaintiff did within the time prescribed fulfil the said condition, and the defendant during the said term did infringe the said patent right.

patent.

Defamation of

That the defendant falsely and maliciously spoke and published of the plaintiff the words following, that is to say-" he is a thief," [if there be any special damage, here state i t with reasonable particularity as to give notice to the defendant of the peculiar injury complained of; for instance] whereby the plaintiff lost his situation as over- seer in the employ of A.

character.

That the defendant falsely and maliciousIy printed and publidhcd of the

plaintiff, in a newspaper called " the words following, that is to say

--"he is a regular prover under bankruptcies ;" the defendant meaning thereby that the plaintiff had proved, and was in the habit of proving, fictitious debts against the estates of bankrupts, with the knowledge that such debts were fictitious.

Commenrement of Plea.

The defendant by his attorney [or in person] saps [here state the substance:

of the plea]; and for a second plea thc defendant says [here state the eecond plcn].

Pleas in Actions on Contracts.

b.., y--' Denial of debt.	That he never was indebted as alleged,	[This plea is applicable to declarations
,	c

y7'd-J aen ia l of contract. alleged. [This plea i a applicable to other declarations

on simple contracts and on bills and notes, such as those number3d 19 to 22. It would be unob.jectionable to use ('did not warrant," "did not agree," or any other

amrowiate denial.1 I I

Denial of deed. hat the ~ l l e ~ e ~ d e e d is not his deed.

Statute of limitations. That the alleged cause of action did not accrue within six years [statc the period of limitation applicable to the case] before this suit.

Payment.	That before action be satisfied and discharged the plaintiff's claim by payment.
Set off.	That the plaintiff a t the commencement of this sui t was and. h11 is indebtcd

a7i.,- ..H --&L--/ to the defendant in an amount equal to the plaintiff's claim, for [hare state the

cause of set off as in a declaration-see forms ante], which amount the defendaut

W L#- is willing to set off against the plaintiff's claim.

Set off to mount of	That the plaintiff at the commencement of this suit was and still is indebted to the set off as above] which debt the defendant is willing to set off against the plain- t i p s claim to tho amount thereof, and hereby claims from the plaintiff $ the balance due to thc defendant after making such set off.
~laintiff'sdemand	defendant in an amount exceeding the plaintiff's claim, for [here state the cause of
'leirn for
Release.	That after the alleged claim accrued, and before this suit, the plaintiff bp d e d released the defendant therefrom.

Pleas in Actions for wrongs indyendent of Contract.

Not guilty.	That he is not guilty.
h a v e and license.	That he did what is complained of by plaintiff's leave.

Self-defence.	That the plaintiff first assaulted the defendant, who thereupon necessarily committed the alleged assault in his own defence.
pitight of way.	That the defendant at the time of the alleged trespass was possessed of land, the occupiers whereof fbr twenty years before this suit, enjoyed as of right and without interruption a way on foot and with cattle from a public highway over the said land of the plaintiff to the said land of the defendant, and from the said land of the

d efendan!

defendant over the said land of the plaintiff to the said puhlic higllmay at all times of the year, for the more convenient occupation of the said land of the defendant, and that the alleged trespass was a use by tlie defendant of the said way.

Tbst the derendxnt at the time of the alleged trespass was possessed of land, the occupiers whereof, fbr thirty years before this suit, enjoyed as of right and without interruption common of pasture over the said land of the plaintiff for all their cattle lruant and coucknnt, upon the said land of the defendant, a t all times of the year, as to the said land of the del'eadant appertaining, and that the alleged trespass was a use by the defendant of'the said right of common. Right of common.

BepZications.

The phir~tiff takes issue upon the defendant's first, second, &c,, pleas. Joinder of issue.

The plaintiff as to the second plea says [here state the answer of the plea ~ ~ ~ to pleas l i ~ ~ ~ i ~ ~

as in the following f~,nn.i]. containing newmatter

That the nlleqed rc l~nse is not the plaintiff's deed. T ~ J plea of i clease.

TI1:xt tlic alleged release wa.; procured hy the fraud of the defendant.

That the alleged y e t otI' did not accrue within six years before this suit. To plea of set oE

'I'hnt the plaintiff was possessed of land whereon the defendant was trespassing To self-dcfenco.

and doing ilntcagc, wtxrerlpoll the plaintiff requested the defendant to leave the

soit1 I:tnd, which the defendant refiised to do, and thereupon the plaintiff gently

laid his hands on the defendant i n order to remove him, doing no more than

was necessary for that purpose, which i s the alleged first assnult by the plaintiff.

That the occupiers of the said land did not for twenty years before this suit To right of wrly.

enjoy as of right and without interruption the alleged way.

New Assignment.

The plaintiff as to the and pleas says, that he sues not for the trespasses Tothe pleas clfright

therein admitted, but for trespasses corr~niitted by tlle defendant in excess of the comnlor,

ot way and right of

alleged rights, and also in other parts of the said land, and on other occasions,

and for other purposes than those referred to in the said pleas.

[If the plaintiff replies and new assigns, the new assignment may be as

followsl:

And the plaintiff as to the and pleas, further says, that he sues not only

for the trespasses in those pleas admitted, but also for, &c.

[If the plaintiff replies and new ussigns to some of the pleas, and new

assigns only to the other, the form may be an follows]:

And the plaintic as to the and pleas, further eays, that he sues not for

the trespasses i n the

pleas [the pleas not replied to] admitted, but for the

trespasses in the pleas [the pleas replied to] admitted, and also for, &c.

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AI)EK.AI~E . Printed hy autho~ity by \y. c. Cos, Gwernment Flinter, Virtorin~qunre.

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