No. 2. Clauses of the Act of Parliament, 3 & 4 William the 4th, ch. 42, declared to be in force within these islands, by the preceding Act 3 Vic. Act. c. 33. Clauses of Stat. extended. clauses of 3 & 4 W. 4, c. 42, bring actions for injuries to the real estates of the deceased. II. And Whereas, There is no remedy provided by law for injuries to the real estate of any person deceased, committed in his lifetime, nor for certain things done by a person deceased, in his The particular lifetime, to another, in respect of his property, real or personal; for remedy thereof; Be it, &c., That an action of trespass or trespass which are exon the case, as the case may be, may be maintained by the executors tended to these or administrators of any person deceased, for any injury to the real Islands. estate of such person, committed in his lifetime, for which an action Executors may might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person; and provided such action shall be brought within one year after the death of such person; and the damages, when recovered, shall be part of the personal estate of such person; and, further, that an action of trespass or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased, for anything committed by him, in his lifetime, to another, in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death; and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person; and the damages to be recovered in such action shall be payable in like order of administration, as the simple contract debts of such person. III. That all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance, and, also all actions of debt upon any award, where the submission is not by specialty, or for any fine due in respect of any copyhold estates, or for an escape, or for money levied on any fieri facias, and all actions for penalties, damages, or sums of money given to the party grieved, by any statute now or hereafter to be in force, that shall be sued or brought at any time after the end of the present Session of Parliament, shall be commenced and sued within the time and limitation hereinafter expressed, and not after; that is to say, the said actions of debt for rent, upon an indenture of demise, or covenant or debt upon any bond or other specialty, actions of debt or scire facias upon recognizance, within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved, one year after the end of this present session, or within two years after the cause of such actions or suits, but not after; and the said other actions within three years after the end of this present session, or within six years after the cause of such actions or suits, but not after: Provided, That nothing herein contained shall extend to any action given by any statute, where the time for bringing such action is, or shall be, by any statute specially limited. IV. That if any person or persons that is, or are, or shall be, entitled to any such action or suit, or to such scire facias, is, or are, or shall be, at the time of any such cause of action accrued, within the age of twenty-one years, femme couverte, non compos mentis, or An action may be brought against Executors for injury to property, real or per sonal. Limitation of Action of Debt, on Specialties, &c. Remedy for infants, femme couverts, &c. BIB CODR COLL OXON Act 3 Vic. Clauses of Stat. Absence of De fendants be- Proviso in case of acknowledg- or by part pay- The limitation or outlawry 86 SUPREME COURT. [Part III. beyond the seas, then such person or persons shall be at liberty to bring the same actions, so as they commence the same within such times after their coming to or being of full age, discovert, of sound memory, or returned from beyond the seas, as other persons having no such impediment should, according to the provisions of this Act, have done; and that if any person or persons against whom there shall be any such cause of action, is, or are, or shall be, at the time such cause of action accrued, beyond the seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons, within such times as are before limited after the return of such person or persons from beyond the seas. V. Provided always, that if any acknowledgment shall have been made, either by writing signed by the party liable by virtue of such indenture, specialty, or recognizance, or his agent, or by part payment, or part satisfaction, on account of any principal or interest being then due thereon, it shall and may be lawful for the person or persons entitled to such actions to bring his or their action for the money remaining unpaid, and so acknowledged to be due, within twenty years after such acknowledgment, by writing or part payment or part satisfaction, as aforesaid, or in case the person or persons entitled to such action shall, at the time of such acknowledgment, be under such disability, as aforesaid, or the party making such acknowledgment be, at the time of making the same, beyond the seas, then, within twenty years after such disability shall have ceased, as aforesaid, or the party shall have returned from beyond seas, as the case may be, and the plaintiff or plaintiffs in any such action on any indenture, specialty, or recognizance, may, by way of replication, state such acknowledgment, and that such action was brought within the time aforesaid, in answer to a plea of this statute. VI. And, nevertheless, Be it enacted, if in any of the said after judgment actions judgment be given for the plaintiff, the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill; or if in any of the said actions the defendant shall be outlawed, and shall after reverse the outlawry, that in all such cases the party plaintiff, his executors or administrators, as the case shall require, may commence a new action or suit, from time to time, within a year after such judgment reversed, or such judgment given against the plaintiff, or outlawry reversed, and not after. Restriction as to plea in abate- Reply of plain- VIII. That no plea in abatement, for the non-joinder of any person as a co-defendant, shall be allowed in any Court of common law, unless it shall be stated in such plea that such person is resident within the jurisdiction of the Court, and unless the place of residence of such person shall be stated with convenient certainty in an affidavit verifying such plea. IX. That to any plea in abatement, in any Court of law, of the non-joinder of another person, the plaintiff may reply that such person has been discharged by bankruptcy and certificate, or under an Act for the relief of insolvent debtors. X. That in all cases in which, after such plea in abatement, the plaintiff shall, without having proceeded to trial upon an issue thereon, commence another action against the defendant or defend No. 2. Act 3 Vic. extended. ants in the action, in which such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, if it shall appear by the pleadings in such c. 33. subsequent action, or on the evidence at the trial thereof, that all the original defendants are liable, but that one or more of the Clauses of Stat. persons named in such plea in abatement, or any subsequent plea in abatement, are not liable as a contracting party, or parties, the plaintiff shall, nevertheless, be entitled to judgment, or to a verdict and judgment, as the case may be, 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 as costs in the cause against the defendant or defendants, who shall have so pleaded in abatement, the non-joinder 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 of abatement. in abatement. XI. That no plea in abatement for a misnomer shall be allowed Misnomer not in any personal action, but that in all cases in which a misnomer to be pleaded would but for this Act, have been by law pleadable in abatement in such actions, the defendant shall be at liberty to cause the declaration to be amended, at the costs of the plaintiff, by inserting the right name, upon a Judge's summons founded on an affidavit of the right name; and in case such summons shall be discharged, the costs of such application shall be paid by the party applying, if the Judge shall think fit. XII. That in all actions upon bills of exchange or promissory notes, or other written instruments, any of the parties to which are designated by the initial letter or letters, or some contraction of the Christian or first name or names, it shall be sufficient in every affidavit to hold to bail, and in the process or declaration to designate such persons by the same initial letter or letters, or contraction of the Christian or first name or names, instead of stating the Christian or first name or names in full. XIII. That no wager of law shall be hereafter allowed. XIV. That an action of debt on simple contract shall be maintainable in any Court of common law against any executor or administrator. XXI. That it shall be lawful for the defendant in all personal actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauchery of the plaintiff's daughter or servant), by leave of any of the said superior Courts where such action is pending, or a Judge of any of the said superior Courts, to pay into Court a sum of money, by way of compensation or amends, in such manner and under such regulations as to the payment of costs, and the form of pleading, as the said Judges or such eight or more of them, as aforesaid, shall, by any rules or orders by them, to be from time to time made, order and direct. XXIII. And whereas great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances as to some particular or particulars, between the proof and the record or setting forth, on the record or document on which the trial is had, of contracts, customs, prescriptions, names, and other matters or circumstances, not material to the merits of the case, and Initials of names may be used in some cases. Action of Debt on simple contract. Defendant to be allowed to pay money into Court in certain actions, by Judge's order. Record may be amended in certain cases, No. 2. Act 3 Vic. c. 33. extended. by the misstatement of which the opposite party cannot have been prejudiced, and the same cannot, in any case, be amended at the trial, except where the variance is between any matter in writing, or in print, produced in evidence, and the record: And whereas, Clauses of Stat. it is expedient to allow such amendments as hereinafter mentioned, to be made on the trial of the cause; Be it, &c., That it shall be lawful for any court of record holding plea in civil actions, and any Judge sitting at nisi prius, if such Court or Judge shall see fit so to do, to cause the record, writ, or document, on which any trial may be pending before any such Court or Judge in any civil action, or in any information in the nature of a quo warranto or proceedings on a mandamus, when any variance shall appear between the proof and the recital, or setting forth on the record, writ, or document on which the trial is proceeding, of any contract, custom, prescription, name, or other matter, in any particular or particulars in the judgment of such Court or Judge, not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution, or defence, to be forthwith amended by some officer of the Court, or otherwise, both in the part of the pleadings where such variance occurs, and in every other part of the pleadings which it may become necessary to amend, on such terms as to payment of costs to the other party, or postponing the trial to be had before the same or another jury, or both payment of costs and postponement, as such Court or Judge shall think reasonable; and in case such variance shall be in some particular or particulars in the judgment of such Court or Judge, not material to the merits of the case, but such as that the opposite party may have been prejudiced thereby, in the conduct of his action, prosecution, or defence, then such Court or Judge shall have power to cause the same to be amended, upon payment of costs to the other party, and withdrawing the record, or postponing the trial, as aforesaid, as such Court or Judge shall think reasonable; and after any such amendment, the trial shall proceed, in case the same shall be proceeded with, in the same manner in all respects, both with respect to the liability of witnesses to be indicted for perjury, and otherwise, as if no such variance had appeared; and in case such trial shall be had at nisi prius, or by virtue of such writ, as aforesaid, the order for the amendment shall be endorsed on the postea or the writ, as the case may be, and returned together with the record or writ, and thereupon, such papers, rolls, and other records of the Court, from which such record or writ issued, as it may be necessary to amend, shall be amended accordingly; and in case the trial shall be had in any Court of Record, then the order for amendment shall be entered on the roll or other document, upon which the trial shall be had; Provided, that it shall be lawful for any party who is dissatisfied with the decision of such Judge, at nisi prius, sheriff, or other officer, respecting his allowance of any such amendment, to apply to the Court, from which such record or writ issued, for a new trial upon that ground; and in case any such Court shall think such amendment improper, a new trial shall be granted accordingly, on such terms as the Court shall think fit, or the Court shall make such other order, as to them may seem meet. Power for the XXIV. That the said Court or Judge shall and may, if they or Court or Judge he think fit, in all such cases of variance, instead of causing the record or document to be amended as aforesaid, direct the jury to to direct the find the fact or facts, according to the evidence, and thereupon, such finding shall be stated on such record or document; and notwithstanding the finding on the issue joined, the said Court, or the Court from which the record has issued, shall, if they shall think the said variance immaterial to the merits of the case, and the misstatement such as could not have prejudiced the opposite party in the conduct of the action or defence, give judgment according to the very right and justice of the case. XXV. That it shall be lawful for the parties in any action or information, after issue joined, by consent and by order of any of the judges of the said superior Court, to state the facts of the case, in the form of a special case, for the opinion of the Court, and to agree that a judgment shall be entered for the plaintiff or defendant, by confession, or of nolle prosequi, immediately after the decision of the case, or otherwise, as the Court may think fit, and judgment shall be entered accordingly. any witness Witnesses interested solely on account of the verdict to XXVI. And in order to render the rejection of witnesses on the ground of interest less frequent; Be it, &c., That if shall be objected to as incompetent, on the ground that the verdict or judgment, in the action on which it shall be proposed to examine be admissible. him, would be admissible in evidence, for or against him, such witness shall, nevertheless, be examined, but in that case, a verdict or judgment in that action, in favour of the party on whose behalf he shall have been examined, shall not be admissible in evidence for him, or any one claiming under him, nor shall a verdict or judgment against the party on whose behalf he shall have been examined, be admissible in evidence against him, or any one claiming under him. name of the Record. witness on the XXVII. That the name of every witness objected to, as incom- Direction to petent on the ground that such verdict or judgment would be admis- enforce the sible in evidence for or against him, shall, at the trial, be endorsed on the record or document on which the trial shall be had, together with the name of the party on whose behalf he was examined, by some officer of the Court, at the request of either party, and shall be afterwards entered on the record of the judgment; and such endorsement or entry shall be sufficient evidence that such witness was examined in any subsequent proceeding in which the verdict or judgment shall be offered in evidence. XXVIII. That upon all debts or sums certain, payable at a certain time or otherwise, the jury, on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor, at a rate not exceeding the current rate of interest, from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor, that interest will be claimed from the date of such demand until the term of payment: Provided, That interest shall be payable in all cases in which it is now payable by law. XXIX. That the jury on the trial of any issue, or on any inquisition of damages may, if they shall think fit, give damages, in the nature of interest, over and above the value of the goods at the time of the conversion or seizure, in all actions of trover or trespass, de bonis asportatis, and over and above the money recoverable in Jury empow ered to allow interest upon debts. When Jury may give damages in the nature of in terest. |