APPENDIX. THE PRINCIPAL STATUTES AND RULES AFFECTING PLEADING IN GENERAL. [See the Statutes of Amendments and Jeofails collected, Chitty Col. Stat. tit. Amendments and Jeofails.] 4 ANNE, CAP. XVI. [1705.] c. 20, sect. 7, writs of man without re defect in other plead An Act for the better Amendment of the Law, and the better Advancement of Justice. FOR the amendment of the law in several particulars, and for the easier, By 9 Anne, speedier, and better advancement of justice, be it enacted by the Queen's this statute is most excellent Majesty, by and with the advice and consent of the lords extended to spiritual and temporal, and commons, in this present parliament assembled, damus and and by the authority of the same, that from and after the first day of Trinity informations term which shall be in the year of our Lord one thousand seven hundred and quo warsix, where any demurrer shall be joined, and entered in any action or suit in ranto. any court of record within this realm, the judges shall proceed and give judg- Judges shall give judg. ment according as the very right of the cause and matter in law shall appear ment on deunto them, without regarding any imperfection, omission, or defect in any writ, murrer, &c. return, plaint, declaration, or other pleading, process, or course of proceeding garding any whatsoever, except those only which the party demurring shall specially and writ, decla particularly set down and express, together with his demurrer, as causes of ration, or the same, notwithstanding that such imperfection, omission, or defect might ing, unless have heretofore been taken to be matter of substance, and not aided by the there be a statute made in the twenty-seventh year of Queen Elizabeth, intituled, "An murrer Act for the Furtherance of Justice in case of Demurrer and Pleadings," so defect. showing the as sufficient matter appear in the said pleadings, upon which the Court may 27 Eliz. cap. give judgment according to the very right of the cause; and therefore from 5. and after the said first day of Trinity Term, no advantage or exception shall be taken of or for an immaterial traverse; or cf or for the default of entering pledges upon any bill or declaration; or of or for the default of alleging the bringing into Court any bond, bill, indenture, or other deed whatsoever mentioned in the declaration or other pleading; or of or for the default of alleging of the bringing into Court letters testamentary, or letters of administration; or of or for the omission of vi et armis et contra pacem, or either of them; or of or for the want of averment of hoc paratus est verificare, or, hoc paratus est verificare per recordum; or of or for not alleging prout patet per recordum; but the Court shall give judgment according to the very right of the cause as aforesaid, without regarding any such imperfections, omissions, and defects, or any other matter of like nature, except the same shall be specially and particularly set down and shown for cause of demurrer. special de 4 Anne, c. 16. Statutes of jeofails extended to judgments &c. *11. And be it further enacted by the authority aforesaid, that from and after the said first day of Trinity term, all the statutes of jeofails shall be extended to judgments which shall at any time afterwards be entered upon confession, on nihil dicit, nihil dicit, or non sum informatus, in any Court of record; and no such judgment shall be reversed, nor any judgment upon any writ of inquiry of damages executed thereon be staid or reversed, for or by reason of any imperfection, omission, defect, matter, or thing whatsoever, which would have been aided and cured by any of the said statutes of jeofails in case a verdict of twelve men had been given in the said action or suit, so as there be an original writ or bill, and warrants of attorney duly filed according to the law as is now used. When warrants of at be filed. III. Provided always, and be it enacted by the authority aforesaid, that the torney shall attorney for the plaintiff, or demandant in any action or suit, shall file his warrant of attorney with the proper officer of the Court where the cause is depending the same term he declares; and the attorney for the defendant or tenant shall file his warrant of attorney as afore-aid, the same term he appears, under the penalties inflicted upon attornies by any former law for default of filing their warrants of attorney. Defendant, &c. may plead seve IV. And be it further enacted by the authority aforesaid, that from and after the said first day of Trinity term it shall and may be lawful for any deral matters. fendant or tenant in any action or suit, or for any plaintiff in replevin, in any Court of record, with the leave of the same Court, to plead as many several matters thereto, as he shall think necessary for his defence. Not extend to qui tam actions. No dilatory plea unless XI. And be it further enacted by the authority aforesaid, that from and after on affidavit. the said first day of Trinity term, no dilatory plea shall be received in any Court of record, unless the party offering such plea, do, by affidavit, prove the truth thereof, or show some probable matter to the Court to induce them to believe that the fact of such dilatory plea is true. Action of debt brought after money paid, such payment may be bar. XII. And be it further enacted by the authority aforesaid, that from and on single bill after the said first day of Trinity term, where any action of debt shall be or judgment, brought upon any single bill, or where action of debt, or scire facias, shall be brought upon any judgment, if the defendant hath paid the money due upon such bill or judgment, such payment shall and may be pleaded in bar of such pleaded in action or suit, and where an action of debt is brought upon any bond which hath a condition or defeazance to make void the same upon payment of a lesser sum at a day or place certain, if the obligor, his heirs, executors, or administrators, have, before the action brought, paid to the obligee, his executors, or administrators, the principal and interest due by the defeazance or The like on condition of such bond, though such payment was not made strictly according to the condition or defeazance; yet it shall and may nevertheless be pleaded in bar of such action, and shall be as effectual a bar thereof, as if the money had been paid at the day and place according to the condition or defeazance, and had been so pleaded. bonds. Principal and interest on "bonds paid in Court, &c. XIII. And be it further enacted by the authority aforesaid, that if at any time, pending an action upon any such bond with a penalty, the defendant shall bring into the Court where the action shall be depending, all the principal money, and interest due on such bond, and also all such costs as have been expended in any suit or suits in law or equity upon such bond, the said money so brought in shall be deemed and taken to be in full satisfaction and discharge of the said bond, and the Court shall and may give judgment to discharge every such defendant of and from the same accordingly. 9 GEO. IV. CAP. 14. 9 G. 4, c. 14. An Act for rendering a written Memorandum necesssary to the Validity of certain Promises and Engagements. [9th May, 1828.] English Act, WHEREAS by an Act passed in England in the twenty-first year of the reign 21 Jac. 1, c. of King James the First, it was, among other things, enacted, that all actions of account and upon the case, other than such accounts as concern the trade 16. sess. 2, c. 6. debt, or upon ment shall sufficient un part pay. of merchandize between merchant and merchant, their factors or servants, all 9 G. 4, c. 14 actions of debt grounded upon any lending or contract without specialty, and all actions of debt for arrearages of rent, should be commenced within three years after the end of the then present session of parliament, or within six years next after the cause of such actions or suit, and not after: And whereas Irish Act, a similar enactment is contained in an Act passed in Ireland in the tenth year 10 Car. 1, of the reign of King Charles the First: And whercas various questions have arisen in actions founded on simple contract, as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactments; and it is expedient to prevent such questions, and to make provision for giving effect to the said enactments and to the intention thereof: be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assem bled, and by the authority of the same, that in actions of debt or upon the case grounded upon any simple contract, no acknowledgment or promise by words la actions of enly shall be deemed sufficient evidence of a new or continuing contract, the case, no whereby to take any case out of the operation of the said enactments, or ei- acknowledg ther of them, or to deprive any party of the benefit thereof, unless such acknowl- be deemed edgment or promise shall be made or contained by or in some writing to be less it be in signed by the party chargeable thereby; and that where there shall be two or writing or by more joint contractors, or executors or administrators of any contractor, no ment. such joint contractor, executor or administrator, shall lose the benefit of the said enactments, or either of thein, so as to be chargeable in respect or by tractors. reason only of any written acknowledgment or promise made and signed by any other or others of them: Provided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever: Provided also, that in actions to be Proviso for commenced against two or more such joint contractors, or executors or admin- the case of istrators, if it shall appear at the trial or otherwise that the plaintiff, though tractors. barred by either of the said recited Acts or this Act, as to one or more of such joint contractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise, or otherwise, judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff. II. And be it further enacted, that if any defendant or defendants in any action on any simple contract shall plead any matter in abatement, to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not, by reason of the said recited Acts or this Act, or of either of them, be maintained against the other person or persons named in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same. Joint con joint con Pleas in abatement. payment, III. And be it further enacted, that no indorsement or memorandum of any Indorsepayment written or made after the time appointed for this act to take effect, ments of upon any promissory note, bill of exchange, or other writing, by or on the behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of either of the said statutes. IV. And be it further enacted, that the said recited Acts and this Act shall simple conbe deemed and taken to apply to the case of any debt on simple contract al- tract debts leged by way of set-off on the part of any defendant, either by plea, notice, or way of set otherwise. alleged by off. mises made V. And be it further enacted, that no action shall be maintained whereby Confirmato charge any person upon any promise made after full age to pay any debt tion of procontracted during infancy, or upon any ratification after full age of any pro- by infants. mise or simple contract made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith. *9 Geo. IV. Cap. 15. 9 G. 4, c. 15. An act to prevent a Failure of Justice by reason of Variances between Records and Writings produced in Evidence in support thereof. [9th May, 1828.] WHEREAS great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances between writings produced in evidence, and the recital or setting forth thereof upon the record on which the trial is had, in matters not material to the merits of the case; and such record cannot now in any case be amended at the trial, and in some cases cannot be amended at any time; for remedy thereof, be it enacted, that it shall and may be lawful for every Court of record holding plea in civil actions, any judge sitting at nisi prius, and any Court of oyer and terminer and general gaol delivery in England, Wales, the town of Berwick-upon-Tweed, and Ireland, if such where a va Court or judge shall see fit so to do, to cause the record on which any trial appear be may be pending before any such judge or Court in any civil action, or in any ten or print. indictment or information for any misdemeanor, when any variance shall aped evidence pear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon record whereon the trial is pending, to be forthwith amended in such particular by some officer of the Court, on payment record to be of such costs (if any) to the other party as such judge or Court shall think amended on reasonable; and thereupon the trial shall proceed as if no such variance had In cases riance shall tween writ and the rec ord, the Court may order the payinent costs. 2 W. 4, c. 39. Serviceable process for the commencement of personal actions. 6 G. 4, c. 16. appeared; and in case such trial shall be had at nisi prius, the order for the amendment shall be indorsed on the postea, and returned together with the record; and thereupon the papers, rolls, and other records of the Court from which such record issued, shall be amended accordingly. 2 Will. IV. Cap. 39. An Act for Uniformity of Process in Personal Actions in His Majesty's Courts of Law at Westminster. [23 May, 1832.] WHEREAS the process for the commencement of personal actions in his Majesty's superior Courts of Law at Westminster, is, by reason of its great variety and multiplicity, very inconvenient in practice; for remedy thereof be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that the process in all such actions commenced in either of the said Courts, in cases where it is not intended to hold the defendant to special bail, or to proceed against a member of parlia ment, according to the provisions contained in the statute passed in the sixth year of the reign of his late Majesty King George the Fourth, intituled “An Act to amend the Laws relating to Bankrupts," shall, whether the action be brought by or against any person entitled to the privilege of peerage, or of parliament, or of the Court wherein such action shall be brought, or of any other Court, or to any other privilege, or by or against any other person, be according to the form contained in the Schedule to this Act annexed, marked No. 1, and which process may issue from either of the said Courts, and shall be called a writ of summons; and in every such writ, and copy thereof, the place and county of the residence or supposed residence of the party defendant, or wherein the defendant shall be, or shall be supposed to be, shall be menWrits may tioned; and such writ shall be issued by the officer of the said Courts respectwithin two ively by whom process serviceable in the county therein mentioned hath been yards of the heretofore issued from such Court; and every such writ may be served in the border of the manner heretofore used in the county therein mentioned, or within two hun[*705] dred yards of the border thereof, and *not elsewhere, and the person serving The day of the same shall and is hereby required to indorse on the writ the day of the service to be month and week of the service thereof. be served hundred county. writ. indorsed on II. And be it further enacted, that the mode of appearance to every such Mode of ap: writ, or under the authority of this Act, shall be by delivering a memorandum serviceable in writing according to the form contained in the said Schedule, and marked pearance to process. |