The Common Law Procedure Act of 1853 No 21a (NSW)
No. XXI.
An Act to amend the process practice and mode of Pleading at Law in the Supreme Court. [19th September, 1853.]
2. All personal actions brought in the Supreme Court where the defendant is residing or supposed to reside within the jurisdiction of the said Court shall be commenced by writ of summons in the form contained in the Schedule; A to this Act annexed marked No. 1 and in every such writ and copy thereof the place of the residence or supposed residence
WH E R E A S the process practice and mode of pleading in the Supreme Court at Common Law may be rendered more simple and speedy Be it enacted by the Governor of New South Wales with the advice and consent of the Legislative Council thereof as follows :—
1. The provisions of this Act shall come into operation on the first day of January in the year of our Lord one thousand eight hundred and fifty-four.
Commencement of Personal Actions against defendants whether in or
out of the jurisdiction of the Court.
residence of the party defendant or wherein the defendant shall he or shall he supposed to be shall be mentioned and such writ shall be issued by the Prothonotary or such other officer as the Court shall direct.
3. I t shall not be necessary to mention any form or cause of
action in any writ of summons or in any notice of writ of summons
issued under the authority of this Act.
4. Every writ of summons shall contain the names of all the defendants and shall not contain the name or names of any defendant or defendants in more actions than one.
5. Every writ of summons shall bear date on the day on which the same shall be issued and shall be tested in the name of the Chief Justice or in case of a vacancy of such office then in the name of the Senior Puisne Judge of the Court.
G. Every writ of summons shall be indorsed with the name and place of abode of the attorney actually suing out the same and when the attorney actually suing out any writ shall sue out the same as agent for an attorney in the country the name and place of abode of such attorney in the country shall also be indorsed upon the said writ and in case no attorney shall be employed to issue the writ then it shall be indorsed with a memorandum expressing that the same has been sued out by the plaintiff in person mentioning the city town or parish and also the name of the hamlet street and number of the house of such plaintiff's residence if any such there be.
7. Every attorney whose name shall be indorsed on any writ issued by authority of this Act shall on demand in writing made by or on behalf of any defendant declare forthwith whether such writ has been issued by him or with his authority or privity and if he shall answer in the affirmative then he shall also in case the Court or a Judge shall so order and direct declare in writing within a time to be allowed by such Court or Judge the profession occupation or quality and place of abode of the plaintiff on pain of being guilty of a contempt of the Court from which such writ shall appear to have been issued and if such attorney shall declare that the writ was not issued by him or with his authority or privity all proceedings upon the same shall be stayed and no further proceedings shall be taken thereupon without leave of the Court or a Judge.
8. Upon the writ and copy of any writ served for the payment of
any debt the amount of the debt shall be stated and the amount of what
the plaintiff's attorney claims for the costs of such writ copy and
service and attendance to receive debt and costs and it shall be further
stated that upon payment thereof within days to the plaintiff or his attorney further proceedings will be stayed which indorsement shall be written or printed in the following form or to the like effect—
" The plaintiff claims £ for debt and
" £ for costs and if the amount thereof be " paid to the plaintiff or to his attorney within
" days from the service hereof further proceedings will
" be stayed"
But the defendant shall be at liberty notwithstanding such payment to have the costs taxed and if more than one-sixth shall be disallowed the plaintiff's attorney shall pay the costs of taxation.
9. The plaintiff in any such action may at any time during six months from the issuing of the original writ of summons issue one or more concurrent writ or writs each concurrent writ to bear teste of the same day as the original writ and to be marked by the Protho notary with the word " concurrent" and the date of issuing the concurrent writ Provided that such concurrent writ or writs shall only
be
be in force for the period during which the original writ in such action
shall be in force.10. No original writ of summons shall be in force for more than six months from the day of the date thereof including the day of such date but if any defendant therein named shall not have been served therewith the original or concurrent writ of summons may 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 currency of the renewed writ by being marked by the proper officer with the date of such renewal upon delivery to him by the plaintiff or his attorney of a praecipe in such form as has heretofore been required to be delivered upon the obtaining of an alias writ and a writ of summons so renewed shall remain in force and be available to prevent the operation of any Statute whereby the time for the commencement of the Act may be limited and for all other purposes from the date of the issuing of the original writ of summons.
11. Where any writ of summons in any such action shall have
been issued before and shall be in force at the commencement of this Act such writ may at any time before the expiration thereof be renewed under the provisions of and in the manner directed by this Act and where any writ issued in continuation of a preceding writ shall be in force and unexpired or where one month next after the expiration thereof shall not have elapsed at the commencement of this Act such continuing writ may be filed in the office of the Court within one month next after the expiration of such writ or within twenty days after the commencement of this Act and the original writ of summons in such action may thereupon but within the same period of one month next after the expiration of the continuing writ or within twenty days after the commencement of this Act be renewed under the provisions of and in the manner directed by this Act and every such writ shall after such renewal have the same duration and effect for all purposes and shall if necessary be subsequently renewed in the same manner as if it had originally issued under the authority of this Act.
12. The production of a writ of summons purporting to be marked as aforesaid by the proper officer shewing the same to have; been renewed according to this Act shall be sufficient evidence of its having been so renewed and of the commencement of the action as of the first date of such renewed writ for all purposes.
13. The person serving the writ of summons shall within three days after such service indorse on the writ the day of the month and week of the service thereof otherwise the plaintiff shall not be at liberty in case of nonappearance to proceed under this Act and every affidavit of service of such writ shall mention the day on which such indorsement was made. 14. Every such writ of summons issued against a Corporation aggregate may be served on the Mayor or other head officer or on the Town Clerk Treasurer Clerk or Secretary of such Corporation.
15. The service of the writ of summons wherever it may be practicable shall be personal but where reasonable efforts have been made without success to effect personal service a true copy of the writ may be left at the defendant's then usual place of abode with some competent person there then residing to be named or otherwise sufficiently described in the affidavit of service hereinafter mentioned.
16. In case any defendant being a British subject is residing out of the jurisdiction of the said Supreme Court it shall be lawful for the plaintiff to issue a writ of summons in the form contained in the said Schedule A No. 2 which writ shall bear the indorsement con
tained
tained in the said form purporting that such writ is for service out of the jurisdiction of the said Supreme Court and the time for appearance by the defendant to such writ shall be regulated by the distance from Sydney of the place where the 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 with in the jurisdiction or in respect of the breach of a contract made within the jurisdiction and that the writ was personally served upon the defendant or that reason able efforts were made to effect personal service thereof upon the defendant and that it came to his knowledge and either that the defendant wilfully neglects to appear to such writ 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 such conditions as to such Court or Judge may seem fit having regard to the time allowed for the defendant to appear being reasonable and to the other circumstances of the case Provided always that the plaintiff shall and he is hereby required to prove the amount of the debt or damages claimed by him in such action either before a jury upon a writ of inquiry or before the Prothonotary of the said Supreme Court in the manner hereinafter provided according to the nature of the case as such Court or Judge may direct and the making such proof shall be a condition precedent to his obtaining judgment.
17. I n any action against a person residing out of the juris diction of the said Court and not being a British subject the like proceedings may be taken as against a British subject resident out of the jurisdiction save that in lieu of the form of writ of summons in Schedule A No. 2 the plaintiff shall issue a writ of summons according to the form contained in the said Schedule No. 3 and shall in manner aforesaid serve a notice of such last-mentioned writ upon the defendant therein mentioned which notice shall be in the form contained in the said Schedule also marked No. 3 and such service shall be of the same force and effect as the service of the writ of summons in any action against a British subject resident abroad and by leave of the Court or a Judge upon their or his being satisfied by affidavit as aforesaid the like proceedings may be had and taken thereupon.
| 18. If the plaintiff or his attorney shall omit to insert in or indorse on any writ or copy thereof any of the matters required by this Act to be inserted therein or indorsed thereon such writ or copy thereof shall not on that account be held void but it may be set aside | as irregular or amended upon application to be made to the Court or |
| to a Judge and such amendment may be made upon any application | |
| to set aside the writ upon such terms as to the Court or Judge may seem fit. | |
| 19. If either of the forms of writ of summons contained in the said Schedule A marked respectively Nos. 1 2 and 3 shall by mistake or inadvertence be substituted for any other of them such mistake or inad vertence shall not be an objection to the writ or any other proceeding in such action but the writ may upon an ex parte application to a Judge whether before or after any application to set aside such writ or any proceeding thereon and whether the same or notice thereof shall have been served or not be amended by such Judge with or without costs. | |
| 20. A writ for service within the jurisdiction may be issued and marked as a concurrent writ with one for service out of the juris diction and a writ for service; out of the; jurisdiction may be: issued and marked as a concurrent writ with one for service within the jurisdiction. | |
| 21. Any affidavit for the purpose of enabling the Court or a Judge to direct proceedings to be taken against a defendant residing out of the jurisdiction of the; said Court may be sworn before any |
2 B—VOL . 4. Consul Consul General Consul Vice Consul or Consular Agent for the time being appointed by Her Majesty at any foreign port or place and every affidavit so sworn by virtue of this Act may be used and shall be admitted in evidence saving all just exceptions provided it purport to be signed by such Consul General Consul Vice Consul or Consular Agent upon proof of the official character and signature of the person appearing to have signed the same Provided always that if any person shall forge the signature of any such affidavit or shall use or tender in evidence any such affidavit with a false or counterfeit signa ture thereto knowing the same to be false or counterfeit he shall be guilty of felony and shall upon conviction be liable to transportation for se;ven years or to imprisonment for any term not exceeding three years nor less than one year with hard labor and every person who shall be charged with committing any felony under this Act may be dealt with indicted tried and if convicted sentenced and his offence may be laid and charged to have been committed in the place in which he shall be apprehended or be in custody and every accessary before or after the fact to any such offence may be; dealt with indicted trie;d and if convicted sentenced and his offence may be laid and charged to have been committed in any place in which the principal offender may be tried Provided also that if any person shall wilfully and corruptly make a false affidavit before such Consul General Consul Vice Consul or Consular Agent every person so offending shall be deemed guilty of perjury in like manner as if such false; affidavit had been made in New South Wales before competent authority and shall and may be dealt with indicted tried and if convicted sentenced and his offence may be laid and charged to have been committed in any place in whie;h he shall be apprehended or be in custody as if his offence had been actually committed in that place.
22. In all cases where the defendant resides within the juris- diction of the Court and the claim is for a debt or liquidated demand in money with or without interest arising upon a contract express or implied as for instance on a bill of exchange promissory note or cheque or other simple contract debt or on a bond or contract under seal for payment of a liquidated amount of money or on a statute where the; sum sought to be recovered is a fixed sum of money or in the nature 1
of a debt or on a guarantee whether under seal or not where the claim against the principal is in respect of such debt or liquidated demand bill cheque or note the plaintiff shall be at liberty to make upon the writ of summons and copy thereof a special indorsement of the
particulars of his claim in the form contained in the said Schedule A No. 4 or to the; like; effect and when a writ of summons has been indorsed in the special form hereinbefore mentioned the indorsement shall be considered as particulars of demand and no further or other particulars of demand need be delivered unless ordered by the Court or a Judge.
Appearance of the defendant and proceedings of the plaintiff in
default of appearance.
23. In case; of nonappearance by the defendant where the writ of summons is indorsed in the special form hereinbefore provided it shall be lawful for the plaintiff on filing an affidavit of due service of the writ of summons in accordance with the provisions of this Act and a copy of such writ at once to sign final judgment in the form contained in the Schedule A No. 5 for any sum not exceeding the sum indorsed on the writ together with interest at the rate specified if any to the date; of the judgment and a sum for costs (to be fixed by the Judges of the said Supreme Court) unless the plaintiff claim more than such fixed sum in which case the costs shall be taxed in the ordinary way and the
plaintiff
plaintiff may upon such judgment issue execution at the expiration of eight days from the last clay for appearance and not before Provided always that it shall be lawful for the Court or a Judge either before or after final judgment to let in the defendant to defend upon an applica tion supported by satisfactory affidavits accounting for the non- appearance and disclosing a defence upon the merits.
24. I n case of such nonappearance where the writ of summons is not indorsed in the special form hereinbefore provided it shall and may be lawful for the plaintiff on filing an affidavit of due service of the writ of summons in accordance with the provisions of this Act and a copy of the writ of summons to file a declaration indorsed with a notice to plead in eight days and to sign judgment by default at the expiration of the time to plead so indorsed as aforesaid and in the event of no plea being delivered where the cause of action mentioned in the declaration is for any of the claims which might have been inserted in the special indorsement on the writ of summons herein before provided and the amount claimed is indorsed on the writ of summons the judgment shall be final and execution may issue for an amount not exceeding the amount indorsed on the writ of summons with interest at the rate specified if any and the sum fixed by the Judges for costs as hereinbefore mentioned unless the plaintiff claim more in which case the costs shall be taxed in the ordinary way Provided always that in such case the plaintiff shall not be entitled to more costs than if he had made such special indorsement and signed judgment upon nonappearance.
25. The defendant may appear at any time before judgment and if he appear after the time specified in the writ of summons he shall after notice of such appearance to the plaintiff or his attorney be in the same position as to pleadings and other proceedings in the action as if he had appeared in time Provided always that a defendant appearing after the time appointed by the writ shall not be entitled to any further time for pleading or any other proceeding than if he had appeared within such appointed time.
26. Every appearance by the defendant in person shall give an address at which it shall be sufficient to leave all pleadings and other proceedings not requiring personal service and if such address be not given the appearance shall not be received and if an address so given shall be illusory or fictitious the appearance shall be irregular and may be set aside by the Court or a Judge and the plaintiff may be
| notary's Office without further service. | permitted to proceed by sticking up the proceedings in the Protho- |
| 27. The mode of appearance to every such writ of summons or under the authority of this Act shall be by delivering a memorandum in writing according to the following form or to the like effect— |
" A. plaintiff against C.D.
or The defendant C. D. ap
against C.D. and another pears in person
or E. E. attorney for C. D.
against C.D. and others appears for him. [If the defendant appears in person here give his address]
Entered the day of 18
Such memorandum to be delivered to the proper officer and to be dated on the day of the delivery thereof.
28. All such proceedings as are mentioned in any writ or notice issued under this Act shall and may be had and taken in default of a defendant's appearance.
29. In any action brought against two or more defendants
where the writ of summons is indorsed in the special form hereinbefore
provided if one or more of such defendants only shall appear and
another
another or others of them shall not appear it shall and may he lawful for the plaintiff to sign judgment against such defendant or defendants only as shall not have appeared and before declaration against the other defendant or defendants to issue execution thereupon in which case he shall be taken to have abandoned his action against the defen dant or defendants who shall have appeared or the plaintiff may before issuing such execution declare against such defendant or defendants as shall have appeared stating by way of suggestion the judgment obtained against the other defendant or defendants who shall not have appeared in which case the judgment so obtained against the defendant or defendants who shall not have appeared shall operate and take effect in like manner as a judgment by default obtained before the commencement of this Act against one or more of the several defendants in an action of debt before the commencement of this Act.
Joinder of parties to actions.
30. I t shall and may be lawful for the Court or a Judge at any time before the trial of any cause to order that any person or persons not joined as plaintiff or plaintiffs in such cause shall be so joined or that any person or persons originally joined as plaintiff or plaintiffs shall be struck out from such cause if it shall appear to such Court or Judge that injustice will not be done by such amendment and that the person or persons to be added as aforesaid consent either in person or by writing under his her or their hands to be so joined or that the person or persons to be struck out as aforesaid were originally intro duced without his her or their consent or that such person or persons consent in manner aforesaid to be so struck out and such amendment shall be made upon such terms as to the amendment of the pleadings (if any) postponement of the trial and otherwise as the Court or Judge by whom such amendment is made shall think proper and when any such amendment shall have been made the liability of any person or persons who shall have been added as co-plaintiff or co-plaintiffs shall subject to any terms imposed as aforesaid be the same as if such person or persons had been originally joined in such cause.
31. In case it shall appear at the trial of any action that there
has been a misjoinder of plaintiffs or that some person or persons not joined as plaintiff or plaintiffs ought to have been so joined and the defendant shall not at or before the time of pleading have given notice in writing that he objects to such nonjoinder specifying therein the name or names of such person or persons such misjoinder or nonjoinder
may be amended as a variance at the trial by the Court or a Judge in
like manner as to the mode of amendment and proceedings consequent thereon or as near thereto as the circumstances of the case will admit as in the case of amendments of variances if it shall appear to such Court or Judge that such misjoinder or nonjoinder was not for the pur pose of obtaining an undue advantage and that injustice will not be done by such amendment and that the person or persons to be added as aforesaid consent either in person or by writing under his her or their hands to be so joined or that the person or persons to be struck out as aforesaid were originally introduced without his her or their consent or that such person or persons consent in manner aforesaid to be so struck out and such amendment shall be made upon such terms as the Court or Judge by whom such amendment is made shall think proper and when any such amendment shall have been made the liability of any person or persons who shall have been added as co-plaintiff or co-plaintiffs shall subject to any terms imposed as aforesaid be the same as if such person or persons had been originally joined in such action and every Circuit Court or Officer presiding at any trial shall be deemed a Court or Judge within the meaning of this section.
32. I n case such notice be given or any plea in abatement of nonjoinder of a person or persons as co-plaintiff or co-plaintiffs in cases where such plea in abatement may be pleaded be pleaded by the defendant the 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 occasioned by such amendment only and in such case the defendant shall be at liberty to plead de novo.
33. I t shall and may be lawful for the Court or a Judge in the case of the joinder of too many defendants in any action on contract at any time before the trial of such cause to order that the name or names of one or more of such defendants be struck out if it shall appear to such Court or Judge that injustice will not be done by such amendment and the amendment shall be made upon such terms as the Court or Judge by whom such amendment is made shall think proper and in case it shall appear at the trial of any action on contract that there has been a misjoinder of defendants such misjoinder may be amended as a variance at the trial in like manner as the misjoinder of plaintiffs has been hereinbefore directed to be amended and upon such terms as the Court or Judge or other presiding officer by whom such amendment is made shall think proper.
34. I n any action on contract where the nonjoinder of any person or persons as a co-defendant or co-defendants has been pleaded in abatement the plaintiff shall be at liberty without any order to amend the writ of summons and the declaration by adding the name or names of the person or persons named in such plea in abatement as joint contractors and to serve the amended writ upon the person or persons so named in such plea in abatement and to proceed against the original defendant or defendants and the person or persons so named in such plea in abatement Provided that the date of such amendment shall as between the person or persons so named in such plea in abatement and the plaintiff be considered for all purposes as the commencement of the action.
| 35. In all cases after such plea in abatement and amendment if it shall appear upon the trial of the action that the person or persons so named in such plea in abatement was or were jointly liable with the original defendant or defendants the original defendant or defendants shall be entitled as against the plaintiff to the costs of such plea in | abatement and amendment but if at such trial it shall appear that the | original defendant or any of the original defendants is or are liable but |
| that one or more of the persons named in such plea in abatement is or are not liable as a contracting party or parties the plaintiff shall never theless be entitled to judgment against the other defendant or defendants who shall appear to be liable and every defendant who is not so liable shall have judgment and shall be entitled to his costs as against the plaintiff who shall be allowed the same together with the costs of the plea in abatement and amendment as costs in the cause against the original defendant or defendants who shall have so pleaded in abatement the nonjoinder of such person Provided that any such defendant who shall have so pleaded in abatement shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him in such plea in abatement. | ||
| 30. In any action brought by a man and his wife for an injury done to the wife in respect of which she is necessarily joined as co- plaintiff it shall be lawful for the husband to add thereto claims in his own right and separate actions brought in respect of such claims may be consolidated if the Court or a Judge shall think fit Provided that in the |
case
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.
Joinder of causes of action.
37. Causes of action of whatever kind provided they be by and against the same parties and in the same rights may be joined in the same suit but this shall not extend to replevin or ejectment and where two or more of the causes of action so joined are local and arise in different districts the venue may be laid in either of such districts but the Court or a Judge shall have power to prevent the trial of different causes of action together if such trial would be inexpedient and in such case such Court or Judge may order separate records to be made up and separate trials to be had.
Determination of questions raised by consent of the parties without
pleading.
38. Where the parties to an action are agreed as to the questions of fact to be decided between them they may after writ issued and before judgment by consent and order of a Judge (which order any Judge shall have power to make upon being satisfied that the parties have a bond fide interest in the decision of such questions and that the same are fit to be tried) proceed to the trial of any questions of fact without formal pleadings and such questions may be stated for trial in an issue in the form contained in the said Schedule A No. 6 and such issue may be entered for trial and tried accordingly in the same manner as any issue joined in an ordinary action and the proceedings in such action and issue shall be under and subject to the ordinary control and jurisdiction of the Court as in other actions.
39. The parties may if they think fit enter into an agreement in writing which shall be embodied in the said or any subsequent order that upon the finding of the jury in the affirmative or negative of such issue a sum of money fixed by the parties or 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 with out the costs of the action.
40. Upon the finding of the jury in any such issue judgment
may be entered for such sum as shall be so agreed or ascertained asaforesaid with or without costs as the case may be and execution may
issue upon such judgment forthwith unless otherwise agreed or unless the Court or a Judge shall otherwise order for the purpose of giving
either party an opportunity for moving to set aside the verdict or fora new trial.
41. The proceedings upon such issue may be recorded at the instance of either party and the judgment whether actually recorded or not shall have the same effect as any other judgment in a contested action.
42. The parties may after writ issued and before judgment by consent and order of a Judge state any question or questions of law in a special case for the opinion of the Court without any pleadings.43. The parties may if they think fit enter into an agreement in writing which shall be embodied in the said or any subsequent order that upon the judgment of the Court being given in the affirmative or negative of the question or questions of law raised by such special case a sum of money fixed by the parties or to be ascertained by the Court or in such manner as the Court may direct shall be paid by one of such parties to the other of them either with or without costs of the action and the judgment of the Court may be entered for such sum as shall be so agreed or ascertained with or
without
without costs as the case may be and execution may issue upon such
judgment forthwith unless otherwise agreed.
44. In case no agreement shall be entered into as to the costs of such action the costs shall follow the event and be recovered by the successful party.
Language and form of pleadings in general.
45. All statements which need not be proved such as the state ment of time quantity quality and value where these are immaterial the statement of losing and finding and bailment in actions for goods or their value the statement of acts of trespass having been committed with force and arms and against the peace of our Lady the Queen the statement of promises which need not be proved as promises in in debitatus counts and mutual promises to perform agreements and all statements of a like kind shall be omitted.
46. Either party may object by demurrer to the pleading of the opposite party on the ground that such pleading does not set forth sufficient ground of action defence or reply as the case may be and where issue is joined on such demurrer the Court shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them without regarding any imperfection omis sion defect in or lack of form and no judgment shall be arrested stayed or reversed for any such imperfection omission defect in or lack of form.
47. No pleading shall be deemed insufficient for any defect which could heretofore only be objected to by special demurrer.
48. If any pleading be so framed as to prejudice embarrass or delay the fair trial of the action the opposite party may apply to the Court or a Judge to strike out or amend such pleading and the Court or any Judge shall make such order respecting the same and also respecting the costs of the application as such Court or Judge shall see fit.
49. Every declaration and other pleading shall be entitled of the Supreme Court and of the day of the month and the year when the same was pleaded and shall bear no other time or date and every declaration and other pleading shall also be entered on the record under the date of the day of the month and year when the same respectively took place and without reference to any other time or date unless otherwise specially ordered by the Court or a Judge.
| 50. I t shall not be necessary to make profert of any deed or other document mentioned or relied on in any pleading and if profert shall be made it shall not entitle the opposite party to crave oyer of or set out upon oyer such deed or other document. |
51. A party pleading in answer to any pleading in which any document is mentioned or referred to shall be at liberty to set out the whole or such part thereof as may be material and the matter so set out shall be deemed and taken to be part of the pleading in which it is set out.
52. I t shall be lawful for the plaintiff or defendant in any action to aver performance of conditions precedent generally and the opposite party shall not deny such averment generally but shall specify in his pleading the condition or conditions precedent the performance of which he intends to contest.
Time and manner of declaring and particulars of demand.
53. A plaintiff shall be deemed out of Court unless he declare within one year after the writ of summons is returnable.
54. Every declaration shall commence as follows or to the like
effect—
[Venue] " A.B. by E.F. his attorney [or in person as the case
" may be] sues CD. for [here state the cause of action]"
and shall conclude as follows or to the like effect—
" And the plaintiff claims £ [or if the action is " brought to recover specific goods the plaintiff claims a
" return of the said goods or their value and £
" for their detention.]"55. 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 trial on an issue thereon commence another action against the defendant in the action in which such plea in abatement shall have been pleaded and the person named in such plea in abate- ment as joint contractor or shall amend by adding the omitted defen dant the commencement of the declaration shall be in the following form or to the like effect—
[Venue] " A. B. by E. F. his attorney [or in his own proper " person &c.] sues C D. and G. H. which said C. D. has " heretofore pleaded in abatement the nonjoinder of the " said G. II. for" &c.
56. I n actions of libel and slander the plaintiff shall be at liberty to aver that the words or matter complained of were used in a defamatory sense specifying such defamatory sense without any prefatory averment to shew how such words or matter were used in that sense and such averment shall be put in issue by the denial of the alleged libel or slander and where the words or matter set forth with or without the alleged meaning shew a cause of action the declaration shall be sufficient.
Fleas and subsequent pleadings.
57. In cases where the defendant is within the jurisdiction the time for pleading in bar unless extended by the Court or a Judge shall be eight days and a notice requiring the defendant to plead thereto in eight days otherwise judgment may whether the declaration be delivered or filed be indorsed upon the declaration or delivered separately.
58. Express color shall no longer be necessary in any pleading.
59. Special traverses shall not be necessary in any pleading.60. In a plea or subsequent pleading it shall not be necessary
to use any allegation of actionem non or actionem ulterius non or to the
like effect or any prayer of judgment nor shall it be necessai'y in any
replication or subsequent pleading to use any allegation of precludi
non or to the like effect or any prayer of judgment.61. No formal defence shall be required in a plea or avowry or cognizance and it shall commence as follows or to the like effect—
" The defendant by his attorney [or in person or " as the case may be] says that [here state first defence]"
and it shall not be necessary to state in a second or other plea or avowry or cognizance that it is pleaded by leave of the Court or a Judge or according to the form of the Statute or to that effect but every such plea avowry or cognizance shall be written in a separate paragraph and numbered and shall commence as follows or to the like; effect—
" And for a second [&c.] plea the defendant says that [here
" state second &c. defence]"
or if pleaded to part only then as follows or to the like effect—
" And for a second [&c] plea to [stating to what it is pleaded]
" the defendant says that &c. "
and
and no formal conclusion shall be necessary to any plea avowry cogni
zance or subsequent pleading.
62. Any defence arising after the commencement of any action shall be pleaded according to the fact without any formal commence ment or conclusion and any plea which does not state whether the defence therein set up arose before or after action shall be deemed to be a plea of matter arising before action.
63. In cases in which a plea puis darrein continuance has here tofore been pleadable in Banco or at Nisi Prius the same defence may be pleaded with an allegation that the matter arose after the last pleading and such plea may when necessary be pleaded in vacation but no such plea shall be allowed unless accompanied by an affidavit that the matter thereof arose within eight days next before the pleading of such plea or unless the Court or a Judge shall otherwise order.
64. I t shall be lawful for the defendant in all actions (except actions for libel malicious arrest or prosecution criminal conversation or debauching of the plaintiff's daughter or servant) and by leave of the Court or a Judge upon such terms as they or he may think fit for one or more of several defendants to pay into Court a sum of money by way of compensation or amends Provided that nothing herein contained shall be taken to affect the provisions of the Act of Council passed in the eleventh year of the reign of Her present Majesty intituled " An Act to amend the Law respecting defamatory words and libel."
65. When money is paid into Court such payment shall be pleaded in all cases as near as may be in the following form mutatis mutandis—
" The defendant by his attorney [or in person &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 satisfy the
" claim of the plaintiff in respect of the matter herein
" pleaded to."
66. No rule or Judge's order to pay money into Court shall be necessary except in the case of one or more of several defendants but the money shall be paid to 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 paid out to the plaintiff or his attorney upon a written authority from the plaintiff on demand.
| 67. The plaintiff after the 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 action in respect of which it has been paid in and he shall bo at liberty in that case to tax his costs of suit and in case of non-payment thereof within forty-eight hours to sign a judgment for his costs of suit so taxed or the plaintiff may reply that the sum paid into Court is not enough to satisfy the claim of the plaintiff in respect of the matter to which the plea is pleaded and in the event of an issue thereon being found for the defendant the defendant shall be entitled to judgment and his costs of suit from the time of such plea. |
08. Whereas certain causes of action may be considered to 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 be objectionable on the ground of its treating the declaration either as framed for a breach of contract or for a wrong.
09. Pleas of payment and set-off and all other pleadings
capable of being construed distributively shall be taken distributively
2 c—VOL . 4. and and if issue is taken thereon and so much thereof as shall he sufficient answer to part of the causes of action proved shall be found 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.
70. A defendant may either traverse generally such of the facts contained in the declaration as might have been denied by one plea or may select and traverse separately any material allegation in the declaration although it might have been included in a general traverse.
71. A plaintiff shall be at liberty to traverse the whole of any
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.
72. A defendant shall be at liberty in like manner to deny the
whole or part of a replication or subsequent pleading of the plaintiff.
73. Either party may plead in answer to the plea or subsequentpleading of his adversary that he joins issue thereon which joinder of
issue may be as follows or to the like effect—
"The plaintiff joins issue upon the defendant's 1st [&C. specifying
what or what part] plea"
"The defendant joins issue upon the plaintiff's replication to
the 1st [&c. specifying what] p lea"
and such form of joinder of issue shall be deemed to be a denial of the substance of the plea or other subsequent pleading and an issue thereon and in all cases where the plaintiff's pleading is in denial of the pleading of the defendant or some part of it the plaintiff may add a joinder of issue for the defendant.
74. Either party may by leave of the Court or a Judge plead 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 substance and in fact and that he is further advised and believes that the objections raised by such demurrer are good and valid objections in Law and it shall be in the discretion of the Court or a Judge to direct which issue shall be first disposed of.
75. The plaintiff in any action may by leave of the Court or a Judge plead in answer to the plea or the subsequent pleading of 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 affidavit of the party making such application or his attorney if required by the Court or Judge to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to 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 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 successful party whatever may be the result of the other issue or issues.76. All objections to the pleading of several pleas replications or subsequent pleadings or several avowries or cognizances on the ground that they are founded on the same ground of answer or defence shall be heard upon the summons to plead several matters.
77. The following pleas or any two or more of them may be
pleaded together as of course without leave of the Court or a Judge
that
that is to say a plea denying any contract or debt alleged in the decla ration a plea of tender as to part a plea of the statute of limitations set-off bankruptcy of the defendant discharge under an Insolvent Act plene administravit plene administravit praeter infancy coverture payment accord and satisfaction release not guilty a denial that the property an injury to which is complained of is the plaintiff's leave and license son assault demesne and any other pleas which the Judges of the said Supreme Court shall by any rule or order from time to time order or direct.
78. The signature of counsel shall not be required to any
pleading.
79. Except in the cases herein specifically provided for if cither party plead several pleas replications avowries cognizances or other pleadings without leave of the Court or a Judge the opposite party shall be at liberty to sign judgment provided that such judgment may be set aside by the Court or a Judge upon an affidavit of merits and such terms as to costs and otherwise as they or he may think fit.
80. One new assignment only shall be pleaded to any number of pleas to the same cause of action and such new assignment shall be consistent with and confined by the particulars delivered in the action if any and shall state that the plaintiff 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 such pleas justify or both.
81. No plea which has already been pleaded to the declaration
shall be pleaded to such new assignment except a plea in denial 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.
82. The form of a demurrer except in the cases herein specifi cally provided for shall be as follows or to the like effect—
" The defendant by his attorney [or in person &c. or plaintiff |
says that the declaration [ or plea &c. ] is bad in substance"
and in the margin thereof some substantial matter of law intended to
be argued shall be stated and if any demurrer shall be delivered Avith-
out 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."
83. Where an amendment of any pleading is allowed no new notice to plead thereto shall be necessary but the opposite party shall be bound to plead to the amended pleading within the time specified in the original notice to plead or within 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 pleaded to before amendment and is not pleaded to de novo within two days after amend ment or within such other time as the Court or a Judge shall allow the pleadings originally pleaded thereto shall stand and be considered as pleaded in answer to such amended pleading.
Examples given of the statements of causes of action and of forms
of pleading.
.84. The forms contained in the Schedule B to this Act annexed shall be sufficient and those and the like forms may be used with such modifications as may be necessary to meet the facts of the ease but nothing herein contained shall render it erroneous or irregular to
depart
depart from the letter of such forms so long as the substance is
expressed without prolixity.
Judgment by default and the mode of ascertaining the amount to be
recovered thereupon.
85. I n actions where the plaintiff seeks to recover a debt or liquidated demand in money judgment by default shall be final.
86. In actions in which it shall appear to the Court or a Judge that the amount of damages sought to be recovered by the plaintiff is substantially a matter of calculation it shall not be necessary to issue a writ of inquiry but the Court or a Judge may direct that the amount for which final judgment is to be signed shall be ascertained by the Prothonotary of the said Court and the attendance of witnesses and the production of documents before such Prothonotary may be compelled by subpoena in the same manner as before a jury upon a writ of inquiry and it shall be lawful for such Prothonotary to adjourn the inquiry from time to time as occasion may require and the Pro thonotary shall indorse upon the rule or order for referring the amount of damages to him the amount found by him and shall deliver the rule or order with such indorsement to the 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.87. In all actions where the plaintiff recovers a sum of money the amount to which he is entitled may be awarded to him by the judgment generally without any distinction being therein made as to whether such sum is recovered by way of a debt or damages.
88. Nothing in this Act contained shall in any way affect the provisions of a certain Act of Parliament passed in the Session of Parliament holden in the eighth and ninth years of the reign of His Majesty King William the Third intituled " An Act for the better preventing frivolous and vexatious suits" as to the assignment or suggestion of breaches or as to judgment for a penalty as a security for damages in respect of further breaches.
Notice of trial and inquiry and countermand thereof
8!). A rule for costs of the day for not proceeding to trial
pursuant to notice or not countermanding in sufficient time may be
drawn up on affidavit without motion. Judgment for default in not proceeding to trial. 90. The provisions of the Act passed in the fourteenth year of the reign of His Majesty King George the Second intituled " An Act " to prevent Inconveniences arising from delays of Causes after issue
"joined" so far as the same relates to judgment as in the case of a
nonsuit shall be and the same are hereby repealed except as to pro ceedings taken or commenced thereupon before the commencement of this Act.
91. Where any issue is or shall be joined in any cause and the plaintiff has neglected or shall neglect to bring such issue on to be tried according to the practice for the time being of the Supreme Court whether the plaintiff shall in the meantime have given notice of trial or not the defendant may give twenty days' notice to the plaintiff to bring the issue on to be tried at the sittings or Assizes as the case may be next after the expiration of the notice and if the plaintiff afterwards neglects to give notice of trial for such sittings or Assizes or to proceed to trial in pursuance of the said notice given
by
by the defendant the defendant may suggest on the record that the plaintiff has failed to proceed to trial although duly required so to do (which suggestion shall not be traversable but only be subject to be set aside if untrue) and may sign judgment for his costs provided that the Court or a Judge shall have power to extend the time for proceeding to trial with or without terms.
Admission of documents.
{
.)2. Either party may call on the other party by notice to
admit any document saving all just exceptions and in case of refusal or neglect to admit the costs of proving the document shall be paid by 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 any document shall be allowed unless such notice be given except in cases where the omission to give the notice is in the opinion of the Prothonotary a saving of expense.
93. An affidavit of the attorney in the cause or his clerk of the due signature of any admissions made in pursuance of such notice and annexed to the affidavit shall be in all cases sufficient evidence of such admissions.
94. An affidavit of the attorney in the cause or his clerk of the service of any notice to produce in respect of which notice to admit 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 the original of such notice and of the time when it was served.
Process of execution.
95. A plaintiff or defendant having obtained a verdict shall be entitled to issue execution in fourteen days unless the Judge who tries the cause or some other Judge or the Court shall order execution to issue at an earlier or later period with or without terms.
96. In every case of execution the party entitled to execution may levy the poundage fees and expenses of the execution over and above the sum recovered.
| 97. When the action shall have been brought to recover specific goods and the plaintiff shall have claimed a return of such goods or their value and damages for their detention and shall have recovered | a verdict and judgment in such action it shall be lawful for the | Sheriff if so required by the plaintiff to demand and seize the specific |
| goods claimed if they can be found by him and to deliver them to the plaintiff and if the Sheriff shall not find and seize the said goods it shall be lawful for the Court or a Judge if the said Court or Judge shall see fit on the application of the plaintiff to order the actual return thereof and to enforce such order by process of attachment and if such application be refused or if such order be not obeyed the plaintiff may by leave of a Judge procure a separate writ of fieri facias to be issued for the value of the goods without prejudice to his right to issue execution either before or after or concurrently therewith for his costs of suit and the damages awarded for the detention of the goods. | ||
| 98. A writ of execution issued after the commencement of this Act if unexecuted shall not remain in force for more than one year from the teste of such writ unless renewed in the manner hereinafter provided but such writ may at any time before 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 continuance of the |
renewed
renewed writ either by being marked by the Prothonotary with the date of the day month and year of such renewal or by such party giving a written notice of renewal to the Sheriff signed by the party or his attorney and countersigned by the Prothonotary and a writ of execu tion so renewed shall have effect and be entitled to priority according to the time of the original delivery thereof.
99. The production of a writ of execution or of the notice renewing the same purporting to be so marked or countersigned as aforesaid shewing the same to have been renewed according to this Act shall be sufficient evidence of its having been so renewed.
100. A written order under the hand of the attorney in the cause by whom any writ of capias ad satisfaciendum shall have been issued shall justify the Sheriff gaoler or person in whose custody the party may be under such writ in discharging such party unless the party for whom such attorney professes to act shall have given written notice to the contrary to such Sheriff gaoler or person in 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.
Proceedings for the revival of judgments and other proceedings by
and against persons not parities to the record.
101. 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.
102. In cases where it shall become necessary to revive a judg ment by reason either of lapse of time or of a change by death or otherwise of the parties entitled or liable to execution the party alleging himself to be entitled to execution may either sue out a writ 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 thereupon such leave to be granted by the Court or a Judge upon a rule to shew 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
No. 7 or to the like effect. summons may be in the form contained in the aforesaid Schedule A 103. Upon such application in case it manifestly appears that the party making the same is entitled to execution the Court or Judge shall allow such suggestion as aforesaid to be entered in the form con tained in the said Schedule A No. 8 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 manifestly so appear the Court or Judge shall discharge the rule or dismiss the summons with or without costs Provided never theless that in such last-mentioned case the party making such appli cation shall be at liberty to proceed by writ of revivor or action upon the judgment.
104. The writ of revivor shall be directed to the party called upon to shew cause why execution should not be awarded and shall bear teste on the day of its issuing and after reciting the reason why such writ has become necessary it shall call upon the party to whom it is directed to appear within eight days after service thereof to shew cause why the party at whose instance such writ has been issued should
not
not have execution against the party to whom such writ is directed and it shall give notice that in default of appearance the party issuing such writ may proceed to execution and such writ may he in the form contained in the said Schedule A No. 9 or to the like effect and may he served and otherwise proceeded upon whether in term or vacation in the same manner as a writ of summons and the venue in a declaration upon such writ may he laid in any district and the pleadings and pro ceedings thereupon and the rights of the parties respectively to costs shall he the same as in an ordinary action.
105. All writs of scire facias issued against hail on a recogni zance against members of a Joint Stock Company or other body upon a judgment recorded against a public officer or other person sued as representing such company or body or against such company or body itself by or against a husband to have execution of a judgment for or against a wife or upon a suggestion of further breaches after judgment for any penal sum pursuant to the Statute passed in the reign of King William the Third intituled " An Act for the better preventing frivolous and vexatious suits" shall be tested directed and proceeded upon in like manner as writs of revivor.
106. Notice in writing to the plaintiff his attorney or agent shall be sufficient appearance to a writ of revivor.
107. A writ of revivor to revive a judgment less than ten years old shall be allowed without any rule or order if more than ten years old not without a rule of Court or a Judge's order nor if more than fifteen without a rule to shew cause.
day of appeared by his attprney [or in person] to the said writ and A. B . has failed to proceed to tr ial although duly required so to do Therefore it is considered tha t the said C . D. be acquitted and tha t he recover against the said A . B .
£ for his costs of defence.
No. 17.
No. 17.
| In the Supreme Court of New South | W a l t s . — |
The day of 18 [Date of Writ.]
CUMBERLAND
TO WIT . j On the day and year above wri t ten a writ of our Lady the Queen issued forth of
this Court in these words tha t 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
par t of the said land that is to say here state the part] Therefore it is considered that the said A . B . do recover possession of the land in the said writ mentioned [or of the said part
| of the said land] with the appurtenances and £ | for costs. |
No. 18.
In the Supreme Court of New South Wales .—
The day of A D . 18 [Date of Writ.]
CUMBERLAND
TO WIT.
On the day and year above writ ten a wri t of our Lady the Queen issued forth of this Court with a notice thereunder written the tenor of which writ and notice follows in these words tha t is to say
[Here copy the writ and notice which latter may be as follows—]
" Take notice Tha t 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 name of landlord] do recover possession of the land in the said writ mentioned with the appurtenances together with £
for costs of suit.
SCHEDULE (B.)
F O R M S O F P L E A D I N G S . STATEMENTS OF CAUSES OF ACTION.
On Contracts.
1. Money payable by the defendant to the plaintiff for [these words money payable G O O D 3 sold.
| &c. should precede money counts like 1 to 14 hut need only be inserted in the first] | goods |
| bargained and sold by the plaintiff to the defendant. |
2 . Work done and materials provided by the plaintiff for the defendant at his Work and materials.
request.
3. Money lent by the plaintiff to the defendant. Money lent. 4. Money paid by the plaintiff for the defendant at his request. Money paid.
5. Money received by the defendant for the use of the plaintiff. Money received. 6. Money found to be duo from the defendant to the plaintiff on accounts stated Account stated.
between them.
7. A messuage and lands sold and conveyed by the plaintiff to the defendant. For an estate sold. 8. The goodwill of a business of the plaintiff sold and given up by the plaintiff to For goodwill,
the defendant.
9. The defendant's use by the plaintiff's permission of messuages and lands of the For the use of a
| plaintiff. | house and land. |
| For the use of a |
10. The defendant's use by the plaintiffs permission of a fishery of the plaintiff. fishery
1 1 . The hire of [as the case may be] by the plaintiff let to hire to the defendant. For hire of goods &c. 12. Fre ight for the conveyance by the plaintiff for the defendant at his request of For freight.
goods in ships.
13 . The demurrage of a ship of the plaintiff kept on demurrage by the defendant. For demurrage.
14. Tha t the defendant on the day of A .D . by his Payee against maker
| promissory note now overdue promised to pay to the plaintiff £ | of | note. |
| two months after date but did not pay the same. |
2 F — V O L . 4 . 15. 15. Tha t one A. on &c. [date] by his promissory note now overdue promised to pay to the defendant or order £ [two] months after date and the defendant indorsed the same to the plaintiff and the said note was duly presented for payment and was dishonoured whereof the defendant had due notice but did not pay the same.
16. Tha t the plaintiff on &c. [date] by his bill of exchange now overdue directed to the defendant required the defendant to pay to the plaintiff £ two months after date and the defendant accepted the said bill but did not pay the same. 17. Tha t the defendant on d r . [date] by his bill of exchange directed to A. required A. to pay to the plaintiff £ [two] months after date and the said bill was duly presented for acceptance and was dishonoured of which the defendant had due notice bu t did not pay the same.
18 . Tha t the plaintiff and defendant agreed to marry one another and a reasonable t ime for such marriage has elapsed and the plaintiff has always been ready and willing to marry the defendant yet the defendant has neglected and refused to marry the plaintiff.
19. Tha t 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 tha t day yet the defendant neglected and refused to marry the plaintiff.20. That the defendant by warrant ing a horse to be then sound and quiet to ride sold the said horse to the plaintiff yet the said horse was not then sound and quiet to ride.
2 1 . That the plaintiff and the defendant agreed by charter-party tha t the plaintiff's ship called the " A r i e l " should with all convenient speed sail to I t . or so near thereto as she could safely get and tha t the defendant should there load her with a full cargo of tallow or other lawful merchandise which she should carry to H. and there deliver on payment of freight £ per ton and that the defendant should be allowed ten days for loading and ten for discharge and ten days for demurrage if required at £ per day and that the plaintiff did all things necessary on his part to entit le him to have the agreed cargo loaded on board the said ship at R. and tha t the time for so doing has elapsed yet the defendant made default in loading the agreed cargo.
22 . Tha t the plaintiff let to the defendant a house No. 40 George-street Sydney for seven years to hold from the
day of
A .D.
at £
a
year payable quarter ly of which rent quarters are due and unpaid. 2 3 . Tha t the plaintiff by deed let to the defendant a house No. 40 George-street Sydney to hold for seven years from the day of A .D . and the defendant by the said deed covenanted with the plaintiff well and substantially to repair the said house during the said term [according to the covenant] yet the said house was dur ing the said term out of good and substantial repair.
For Wrongs independent of Contract.
24. Tha t the defendant broke and entered certain land of the plaintiff called the Big Field and depastured the same with cattle.
25. Tha t the defendant assaulted and beat the plaintiff gave him into custody to a
policeman and caused him to be imprisoned in a Police Office.
26. Tha t the defendant debauched and carnally knew the plaintiff's wife.
27. Tha t the defendant converted to his own use or wrongfully deprived the plaintiff
of the use and possession of the plaintiff's goods tha t is to say iron hops household furni
ture [or as the case mag be].
28 . Tha t the defendant detained from the plaintiff his ti t le deeds of land called
Belmont in the county of tha t is to say [describe the deeds]. 29. Tha t the plaintiff was possessed of a mill and by reason thereof was entitled to
the flow of a stream for working the same and the defendant by cutt ing the bank of the
said stream diverted the water thereof away from the said mill. 30. Tha t the plaintiff was the first inventor of a certain new manufacture that is to
say of " certain improvements in the manufacture of sulphuric acid" for which he obtained
letters patent for the term of fourteen years from the day of A.D. subject to a condition tha t the plaintiff should within six calendar
months cause to be enrolled an ins t rument in wri t ing particularly describing the nature of his said invention and the plaintiff did within the time prescribed fulfil the said condition and the defendant during the said term did infringe the said patent r ight.3 1 . That the defendant falsely and maliciously spoke and published of the plaintiff
the words following that is to say " he is a t h i e f
[if there be any special damage here state it with such reasonable particularity as to give notice to the defendant of the peculiar injury complained of fur
instance]
whereby the plaintiff lost his situation as overseer in the employ of A .
32. Tha t the defendant falsely and maliciously printed and published 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 tha t such debts were fictitious.
COMMENCEMENT OF P L E A .
33. The defendant by his attorney [or in person] says [here slate
the substancc of the plea].
34. And for a second plea the defendant says [here stale the second plea].
Fleas
Pleas in Actions on Contracts.
35. Tha t he never was indebted as alleged.
[This plea is applicable to declarations like those numbered 1 to 14.]
36. Tha t he did not promise as alleged.[This plea is applicable to other declarations on simple contracts not on bills and notes
| such as those numbered 18 to 2 1 . | It would | be unobjectionable | to use " did not w a r r a n t " |
| " did not agree " or any other appropriate | denial.] |
37. Tha t the alleged deed is not his deed.
38. Tha t the alleged cause of action did not accrue within six years [state the period of
limitation applicable to the case] before this suit.
39. Tha t before action he satisfied and discharged the plaintiff's claim by payment. 40 . Tha t the plaintiff at the commencement of this suit was and still is indebted to
the defendant in an amount equal to the plaintiff's claim for [here state the cause of set-off as in a declaration, see forms ante] which amount the defendant is willing to set off against the plaintiff's claim.
4 1 . Tha t after the alleged claim accrued and before this suit the plaintiff by deed
released the defendant therefrom.
Pleas in Actions for Wrongs independent of Contract.
42. That he is not gui l ty.
4 3 . Tha t he did what is complained of by the plaintiff's leave.44 . Tha t the plaintiff first assaulted the defendant who thereupon necessarily com
mitted the alleged assault in his own defence.
4 5 . T h a t the defendant a t the time of the alleged trespass was possessed of land the
occupiers whereof for twenty years before this suit enjoyed as of r ight and without interrup tion 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 defendant over the said land of the plaintiff to the said public highway at all times of the year for the more convenient occupation of the said laud of the defendant and that the alleged trespass was a use by the defendant of the said way.
46 . Tha t the defendant at the t ime of the alleged trespass was possessed of land the occupiers whereof for th i r ty years before this suit enjoyed as of r ight and without interrup tion common of pasture over the said land of the plaintiff for all their cattle levant and couchant upon the said land of the defendant a t all times of the year as to the said land of the defendant appertaining and tha t the alleged trespass was a use by the defendant of the said r ight of common.
REPLICATIONS.
47 . The plaintiff takes issue upon the defendant's 1st 2nd &c. pleas.
4 8 . The plaintiff as to the second plea says [here state the answer to the plea as in the
| following | forms.] |
49 . Tha t the alleged release is not the plaintiff's deed.
50. Tha t the alleged release was procured by the fraud of the defendant.
5 1 . Tha t the alleged set-off did nut accrue within six years before this suit.
52. Tha t the plaintiff was possessed of land whereon the defendant was trespassing
and doing damage whereupon the plaintiff requested the defendant to leave the said land which the defendant refused to do and thereupon the plaintiff gently laid his hands on the
| defendant in order to remove him doing no more than was necessary for that purpose which | is the alleged first assault by the plaintiff. |
53. Tha t the occupiers of the said land did not for twenty years before this suit
enjoy as of r ight and without interruption the alleged way.
N E W ASSIGNMENT.
54. The plaintiff as to the and pleas says tha t he sues
not for the trespasses therein admitted but for trespasses committed by the defendant in excess of the 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 follows—]
55. And the plaintiff as to the and pleas further says
tha t he sues not only for the trespasses in those pleas admitted but also for &c.
[If the plaintiff replies and new assigns to some of the pleas and new assigns only to the other the form may be as follows—]
56. And the plaintiff as to the and pleas further
| says that he sues not for the trespasses in the | pleas [the pleas not replied to] |
| admitted but for the trespasses in the | pleas [the pleas replied to] admitted |
| and also for &c. |
No. X X I I .
0
0
0