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reply, and plead subsequent pleadings, shall not be necessary, No. 9. and instead thereof a notice shall be substituted requiring the Clauses of opposite party to declare, reply, rejoin, or as the case may be, Act of Parl. within four days, otherwise judgment; such notice to be delivered 15 & 16 Vic. separately or indorsed on any pleading to which the opposite party c. 76, is required to reply, rejoin, or as the case may be..
in force, LIV. Every declaration and other pleading shall be entitled of the proper Court, and of the day of the month and the year when Pleadings to the same was pleaded, and shall bear no other time or date, and be dated and
entered as of every declaration and other pleading shall also be entered on the time of plead. record made up for trial and on the judgment roll under the date ing, unless of the day of the month and year when the same respectively took order to the place, and without reference to any other time or date, unless contrary. otherwise specially ordered by the Court or a Judge.
LV. It shall not be necessary to make profert of any deed or Profert and other document mentioned or relied on in any pleading; and if Oyer aboli shed. profert shall be made it shall not entitle the opposite party to crave oyer of or set out upon oyer such deed or other document.
LVI. A party pleading in answer to any pleading in which any Documents document is mentioned or referred to shall be at liberty to set out may be set the whole or such part thereof as may be material, and the matter forth and te
considered a so set out shall be deemed and taken to be part of the pleading in par
part of the which it is set out.
pleading in which it is set forth. LVII. It shall be lawful for the plaintiff or defendant in any Performance action to aver performance of conditions precedent generally, and of conditions the opposite party shall not deny such averment generally, but precedent may shall specify in his pleading the condition or conditions precedent
generally. the performance of which he intends to contest.
And with regard to the time and manner of declaring, and to Declaration. particulars of demand, be it enacted as follows: LVIII. A plaintiff shall be deemed out of Court, unless he de- Plaintiff to
declare within clare within one year after the writ of summons is returnable.
a year, LIX. Every declaration shall commence as follows, or to the like effect:
Forms of com
mencement &c. [Venue.] “A.B. by E.F., his attorney, (or in person, as the case of Declaration.
may be), sues C.D. for (here state the cause of action);". And shall conclude as follows or to the like effect : “And the plaintiff claims £
, (or, if the action is brought to recover specific goods, the plaintiff claims a return of the said goods or their value, and £
for their detention.)" LX. In all cases in which, after a plea in abatement of the non- Commencejoinder of another person as defendant, the plaintiff shall, without ment of De
claration after having proceeded to trial on an issue thereon, commence another
Plea of Nonaction against the defendant or defendants in the action in which joinder. such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, or shall amend by adding the omitted defendant or defendants, the commencement of the declaration shall be in the following form or to the like effect : (Venue. “A.B. by E.F., his attorney (or in his own proper
person, &c.), sues C.D. and G.H., which said C.D. has heretofore pleaded in abatement the nonjoinder of the said G.H. for," &c.
No. 9. LXI. In actions of libel and slander the plaintiff shall be at Clauses of liberty to aver that the words or matter complained of were used in Act of Parl. a defamatory sense, specifying such defamatory sense without any 15 & 16 Vic. prefatory averment to show how such words or matter were used in
c. 76, that sense, and such averment shall be put in issue by the denial in force. of the alleged libel or slander; and where the words or matter set
forth, with or without the alleged meaning, show a cause of action, Libel or slander. the declaration shall be sufficient. Pleadings.
And as to pleas and subsequent pleadings, be it enacted as
follows : Rules to plead LXII. No rule to plead or demand of plea shall be necessary, and demand of and the notice to plead indorsed on the declaration or delivered plea abolished. separately shall be sufficient. Time for plead- LXIII. In cases where the defendant is within the jurisdiction, ing where
the time for pleading in bar, unless extended by the Court or a Defendant is within
Judge, shall be eight days; and a notice requiring the defendant Jurisdiction to plead thereto in eight days, otherwise judgment, may, whether to be eight the declaration be delivered or filed, be indorsed upon the decladays.
ration, or delivered separately. Express color LXIV. Express color shall no longer be necessary in any abolished. pleading. Special Tra LXV. Special traverses shall not be necessary in any pleading. verses abolished. LXVI. In a plea or subsequent pleading it shall not be necesFormal commencement
sary to use any allegation of actionem non, or actionem ulterius and prayer non, or to the like effect, or any prayer of judgment, nor shall of Judgment it be necessary in any replication or subsequent pleading, to use unnecessary. any allegation of precludi non, or to the like effect, or any prayer
of Judgment. Commence LXVII. No formal defence shall be required in a plea, or ment of plea.
avowry, or cognizance, and it shall commence as follows, or to
his attorney (or in person,
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 no formal conclusion shall be necessary to any plea, avowry,
cognizance or subsequent pleading. Plea of matter
LXVIII. Any defence arising after the commencement of any subsequent to action shall be pleaded according to the fact, without any formal Action.
commencement or conclusion; and any plea which does not state whether the defence therein set up arose before or after action shall be deemed to be a plea of matter arising before action.
LXIX. In cases in which a plea puis darrein continuance has No. 9. heretofore been pleaded in Banc or at Nisi Prius, the same defence Clauses of may be pleaded with an allegation that the matter arose after the Act of Parl. last pleading: and such plea may, when necessary, be pleaded at Nisi 15 & 16 Vic. Prius, between the tenth of August and twenty-fourth of October; c. 76, but no such plea shall be allowed unless accompanied by an affidavit in force. that the matter thereof arose within eight days next before the pic pleading of such plea, or unless the Court or a Judge shall other- darrein conwise order.
tinuance when and how to le pleaded. LXX. It shall be lawful for the defendant in all actions, (except Payment into actions for assault and battery, false imprisonment, libel, slander, Cor
httain Actions. malicious arrest or prosecution, criminal coriversation, or debauching of the plaintiff's daughter or servant,) and, by leave of the Court or a Judge, upon such terms as they or he may think fit, for one or more of several defendants to pay into Court a sum of money by way of compensation or amends : Provided that nothing herein contained shall be taken to affect the provisions of a certain Act of Parliament passed in the session of Parliament holden in the sixth and seventh years of the reign of Her present Majesty, entitled, “ An Act to amend the Law respecting defamatory Words and Libel.”
LXXI. When money is paid into Court, such payment shall be Payment into pleaded in all cases, as near as may be, in the following form, Court, how mutatis mutandis :
pleaded. “ The defendant by
his attorney (or in person, &c.)
parcel of the
the plaintiff in respect of the matter herein pleaded to.” LXXII. No rule or Judge's order to pay money into Court No order to shall be necessary, except in the case of one or more of several pay money defendants, but the money shall be paid to the proper officer of into Court. each Court, who shall give a receipt for the amount in the margin of the Plea, and the said sum shall be paid out to the plaintiff or to his attorney, upon a written authority from the plaintiff, on demand.
LXXIII. The plaintiff, after the delivery of a plea of payment Proceeding of money into Court, shall be at liberty to reply to the same by by Plaintiff accepting the sum so paid into Court in full satisfaction and dis- after payment charge of the cause of action in respect of which it has been paid in, to Cou and he shall be at liberty in that case to tax his costs of suit, and, in case of nonpayment thereof within forty-eight hours, to sign judgment for his costs of suit so taxed, or the plaintiff may reply that the sum paid into Court is not enough to satisfy the claim of the plaintiff in respect of the matter to which the plea is pleaded ; and, in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his costs of suit.
LXXIV. Whereas certain causes of action may be considered Pleas to Acto partake of the character both of breaches of contract and of tions partaking wrongs, and doubts may arise as to the form of pleas in such bot,
of Contract and actions, and it is expedient to preclude such doubts : any plea wrong. which shall be good in substance, shall not be objectionable on the ground of its treating the declaration either as framed for a breach of contract, or for a wrong.
No. 9. LXXV. Pleas of payment and set-off, and all other pleadings Clauses of capable of being construed distributively, shall be taken distribuAct of Parl. tively, and if issue is taken thereon, and so much thereof as shall 15 & 16 Vic. be sufficient answer to part of the causes of action proved shall be
c. 76, found true by the jury, a verdict shall pass for the defendant in in force. respect of so much of the causes of action as shall be answered,
a nd for the plaintiff in respect of so much of the causes of action Payment, set as shall not be so answered. off, and other pleadings which can be construed distributively shall be so construed. Traverse of LXXVI. A defendant may either traverse generally such of the the Declara
facts contained in the declaration as might have been denied by one plea, or may select and traverse separately any material allegation in the declaration, although it might have been included in
a general traverse. Traverse of LXXVII. A plaintiff shall be at liberty to traverse the whole of Plea or subse- any plea or subsequent pleading of the defendant by a general quent pleading of Defendant.
denial, or admitting some part or parts thereof, to deny all the rest, a
or to deny any one or more allegations. Traverse of LXXVIII. A defendant shall be at liberty in like manner to Replication or deny the whole or part of a replication or subsequent pleading of subsequent
the plaintiff. pleading of the Plaintiff. de LXXIX. Either party may plead, in answer to the plea or subJoinder of issue. of issue sequent pleading of his adversary, that he joins issue thereon,
which joinder of issue may be as follows or to the like effect :
what or what part) plea :"
1st (&c., specifying what) plea :” and such form of joinder of issue shall be decmed to be a denial of the substance of the plea or other subsequent pleading, and an issue thereon; and in all cases where the plaintiff's pleading is in denial of the pleading of the defendant, or some part of it, the
plaintiff may add a joinder of issue for the defendant. As to pleading
LXXX. Either party may, by leave of the Court or a Judge, and demurring plead and demur to the same pleading at the same time, upon an together.
affidavit by such party, or his attorney, if required by the Court or Judge to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to be traversed by him, and that the several matters sought to be pleaded as aforesaid by way of confession and avoidance are 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. Several mat- LXXXI. The plaintiff in any action may, by leave of the Court ters may be or a Judge, plead in answer to the plea, or the subsequent pleading pleaded at
of the defendant, as many several matters as he shall think necesany stage of the pleadings.
sary to sustain his action; and the defendant in any action may, by leave of the Court or a Judge, plead in answer to the declaration, or other subsequent pleading of the plaintiff, as many several matters as he shall think necessary for his defence, upon an affidavit of the party making such application, or his attorney, if required by the Court or Judge, to the effect that he is advised and believes that he has just ground to traverse the several matters proposed to
be traversed by him, and that the several matters sought to be
No. 9. pleaded as aforesaid by way of confession and avoidance are re
Clauses of spectively true in substance and in fact; provided that the costs
Act of Parl. of any issue, either of fact or law, shall follow the finding or judg. 13 & 16 Vic. ment upon such issue, and be adjudged to the successful party,
c. 76, whatever may be the result of the other issue or issues.
in force. LXXXII. No rule of Court for leave to plead several matters Jo shall be necessary where a Judge's order has been made for the to plead several same purpose.
matters sufficient, LXXXIII. All objections to the pleading of several pleas, re- Objections to plications, or subsequent pleadings, or several avowries or cogni- plendings to zances, on the ground that they are founded on the same ground of be heard on answer or defence, shall be heard upon the summons to plead
od Summons to
plead several several matters.
LXXXIV. The following pleas, or any two or more of them, Certain Pleas may be pleaded together as of course, without leave of the Court may be pleaded or a Judge; that is to say, a plea denying any contract or debt together withalleged in the declaration ; a plea of tender as to part; a plea of out leave the statute of limitations, set-off, bankruptcy of the defendant, discharge under an insolvent Act, plenè administravit, plenè administravit præter, 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 licence, son assault demesne, and any other pleas which the Judges of the said superior Courts, or any eight or more of them, of whom the chief Judges of the said Courts shall be three, shall by any rule or order, to be from time to time by them made in term or vacation, order or direct.
LXXXV. The signature of counsel shall not be required to any Signature of pleading.
Counsel. LXXXVI. Except in cases herein specifically provided for, if for pleading either party plead several pleas, replications, avowries, cogni- several matters zances, or other pleadings, without leave of the Court or a Judge,
| Judgment may the opposite party shall be at liberty to sign judgment; provided be signed. 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.
LXXXVII. One new assignment only shall be pleaded to any One new number of pleas to the same cause of action; and such new assign- Assignment ment shall be consistent with and confined by the particulars de- only allowed
in respect of livered in the action, if any, and shall state that the plaintiff proceeds for causes of action different from all those which the Cause of Action. pleas profess to justify, or for an excess over and above what all the defences set up in such pleas justify, or both.
LXXXVIII. No plea, which has already been pleaded to the Pleas not to be declaration, shall be pleaded to such new assignment, except a repeated. 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.
LXXXIX. The form of a demurrer, except in the cases herein Form of specifically provided for, shall be as follows, or to the like effect : Demurrer and
Joinder in “ The defendant, by his attorney (or, in person, &c., or plaintiff) Demurrer.
says, that the declaration (or plea, &c.) is bad in sub
stance;" and in the margin thereof some substantial matter of law intended