Referring to (s) If the plaintiff in his particulars refers to an account furnished, he may be ordered to refurnish it, if necessary (Steele v. Leadbetter, 3 Ir. L. R. an account. 376). (t) See 55th G. O., 1854. (u) If the plaint is not indorsed as required, it may be set aside as irregular (Smith v. Gilroy, 7 Ir. Jur. O. S. 47; Murphy v. Logan, 10 Ir. C. L. R. 87). The Court would, however, in such a case give leave to amend. As to setting aside a judgment marked where no particulars have been indorsed on the plaint, see Beatty v. Echlin, 2 Law Rec. N. S. 115; Betagh v. Jordan, 4 Law Rec. O.S. 38; which, however, were cases under the old practice. In such cases the irregularity would be considered as waived. 12. Every writ of summons and plaint shall contain or be endorsed with the name and place of abode of the attorney (v) actually suing out the same, and in case no attorney shall be employed to issue the writ, then it shall contain or be endorsed 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 street and number (if any) of the house of such plaintiff's residence, and also, in case the said plaintiff shall not reside in the city of Dublin, mentioning some place in the said city at which the debt may be paid, and all notices and other proceedings in the cause may be served (w). indorsement. (v) The object of the indorsement is to give the defendant full informa- Object of the tion as to the place where he may go for the purpose of settling the action. If the indorsement be omitted, or be defective, the writ will be set aside, or ordered to be amended (Ch. Arch. Pr. 12th Ed. p. 191; Dempster v. Vernon, 6 Ir. Jur. N. S. 366); and if amended at the plaintiff's instance, it will have to be re-served (ibid.). When sued out by a firm of attorneys, the name of the firm ought to be indorsed (Engleheart v. Eyre, 2 Dowl. 145, per Patteson, J.). (w) If the residence given be fictitious, the defendant will be allowed to serve any notices in the cause by posting them in the office of the Court and at the place mentioned in the plaint (Richy v. Crawford, Ir. R. 2 C. L. 434). 13. Every attorney whose name shall be mentioned in or endorsed on any writ of summons and plaint 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 (x); and if he shall answer in the affirmative, then he shall also, in case the Court or a Judge shall so order, 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 (y), on pain of being guilty of a contempt of the Court into which such writ shall be return Where a fictitious residence is given. Attorney, on demand, to her writ issued by his authority, and to deand abode of plaintiff. declare whe clare name 15 & 16 Vict. c. 76. s. 7. 15 & 16 Vict. c. 76, s. 7. Using attorney's name without authority. How application is to be made. Duplicates of plaint. Writs for commencement of actions to be issued in rotation for the several Courts. able (x); 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 all further proceedings taken thereupon, without leave of the Court or a Judge, shall be deemed irregular, and may be set aside accordingly. (x) Where an attorney's name is used without authority, the proceedings may be set aside, if the Court thinks fit to do so, in place of staying them (Hopwood v. Adams, 5 Burr. 2660; Norton v. Curtis, 3 Dowl. 245). If, on the other hand, an attorney institutes proceedings without authority, he will be ordered to pay the costs (French v. French, 4 Law Rec. N. S. 123; Doe v. Eyton, 3 B. & Ad. 785), in which latter case the attorney had innocently acted under a forged power of attorney. (y) An application to the Court for this purpose should be made within a reasonable time. It should appear that the defendant does not know who the plaintiff is, or is not acquainted with the other particulars mentioned in the section; and therefore, in a case where the Court inferred that the defendant was acquainted with the plaintiff's residence, an order was refused (O'Brien v. Lemass, 1 Ir. Jur. N. S. 140). See also Riley v. Beatty, 6 Jr. L. R. 100. The order will not in general be refused, though it be sought for a collateral purpose, as, for instance, for the purpose of enforcing a cross claim (Cox v. Bockett, 18 C. B. N. S. 239). But when the defendant avowed that he sought the information with a view to effect the plaintiff's arrest on a criminal charge, the Court refused an order (Harris v. Holler, 19 L. J. Q. B. 62). So also where the application was made after verdict, the Court refused to make the order (Hooper v. Harcourt, 1 H. Bl. 534) (z) Where the plaintiff's attorney disobeyed the order of the Court, on motion for an attachment, he was ordered to pay the costs, and the proceedings were stayed (Neal v. Holden, 3 Dowl. 493). A plaintiff wilfully causing his attorney to deliver a false address is guilty of a contempt (Smith v. Bond, 13 M. & W. 594). As to the form of an order under this section, see Malpus v. Mudd, 3 H. & N. 246. 14. One duplicate or more of such summons and plaint shall be sealed with the seal of the said superior Courts by the said Clerk of the Writs, on application of the plaintiff or his attorney (a). (a) After the original writ is issued a duplicate writ can only be issued by leave of the Court or a Judge. Inasmuch as the original writ must be produced at the time of service, it will be often convenient to issue duplicate writs in cases where the defendant's residence is unknown, or there are several defendants. 15. All writs of summons and plaint for the commencement of actions in the said Courts shall, by the Clerk of the Writs, be entered and appropriated to the several superior Courts of Law in rotation by twenty-fives, that is to say, the first twenty-five for the Queen's Bench, the second twentyfive for the Common Pleas, and the third twenty-five for the Exchequer, and so on in continuous rotation of twenty-fives for the several Courts, so as to produce and keep up an equal distribution of such writs; and all subsequent proceedings in any action so commenced shall be had and taken in the Court to which the said writ shall be in the course of rotation appropriated, and shall be the business of the said Court and the offices thereof: provided always, that no objection on the ground of any privilege possessed or claimed by any defendant to be sued in any particular Court shall be valid in any such action. 16. No writ of summons and plaint issued under the authority of this Act, or copy thereof, shall be treated or considered as invalid on account of any verbal or technical error or omission in the same, or in any endorsement on the same; and it shall be lawful for the said Superior Courts of Law respectively, or any Judge thereof, to decide and determine, on any application respecting such error or omission, what is a verbal or technical error or omission in any such writ or copy, and to amend or authorize the amendment thereof, or to set aside the same as irregular; but all errors or omissions which have not a manifest tendency to mislead the opposite party shall in all cases be deemed merely verbal or technical (b), (b) The object of this section is to provide that the proceedings under a Object of the writ of summons and plaint shall not be void in case of an error or omission section. of a verbal or technical nature in the writ or copy served, and to give the Court power to amend the writ and also the copy, if it thinks fit so to do, in place of setting the proceedings aside. Formerly the Court possessed no power of amending a copy, which was the act of the party (Eccles v. Cole, 8 M. & W. 537), although it might amend the writ itself. must be taken advan Where an error or omission amounts merely to an irregularity, and is not Irregularity such as to render the writ or the proceedings under it void, the opposite party must take advantage of the irregularity within a reasonable time, and before a fresh step is taken in the action with knowledge of the irregularity (179 G. O., 1854). Thus, in Woodroffe v. Dimsdale, 5 Ir. Jur. O. S. 239, the copy of the writ, which was served on the 17th February, omitted the name of the Court, and the defendant having on the 2nd April applied to set the proceedings aside, the Court refused the application. time. Conse quences of an As a general rule, however, such an error or omission in the writ or copy is, where advantage is taken of it in proper time, ground for setting the writ irregularity. aside, unless the Court gives leave to amend, which it generally will do. Thus, where the copy served was not entitled as of any Court, although the Omission of name of Court. Omission of venue. Omission in the copy. Omission of date. Amending teste pointed out the Court out of which it issued, the Court required it to be amended, but compelled the defendant to plead within a limited time (Cunningham v. O'Gorman, 4 Ir. Jur. N. S. 221); and see, further, as to the omission of the name of the Court in the copy of the writ, Tuckey v. M'Carthy, 7 Ir. C. L. R. 289; and as to such an omission in the writ itself, Stephenson v. Thorne, 2 D. & L. 230. Where the writ as filed and served contained no venue, the Court allowed the writ to be amended (Tuomey v. Formey, 7 Ir. Jur. O. S. 138); and see Hanbury v. Jones, 15 Ir. C. L. R. 442. As to an error or omission in the description of the residence or designation of the parties, see sect. 9, ante. Where the copy of a writ served omitted the word "sold," in a count for goods bargained and sold, and the plaintiff served an amended copy, calling on the defendant to plead in two days, after which he marked judgment, the judgment was set aside (Holdbrooke v. Dymoke, I. R. 2 C. L. 674). The proper course would have been to obtain leave to amend the copy under this section. Where a plaint omitted in its date the day of the week, leave to amend was given (Worlington v. Meade, 6 Ir. Jur. O. S. 246). As to the omission of any date, see Ball v. Hamlet, 3 Dowl. 188. Leave to amend an indorsement, or to indorse any of the matters which indorsement. should have been indorsed upon the plaint or the copy of it, may also be obtained (Dempster v. Vernon, 6 Ir. Jur. N. S. 366). Costs. Terms. To prevent doubts from abolition of forms of action. Arrest on mesne pro cess. See, further, as to the subject of amendment, sect. 231, post. If the plaintiff applies for leave to amend an error or omission of the description in question, and offers the defendant proper terms, the defendant will not get the costs of opposing the plaintiff's application, nor will he get the costs of a motion to set the writ aside. (Tuomey v. Formey, 7 Ir. Jur. O. S. 138). The Court, in giving leave to amend, will generally fix the time for pleading; and if the error or omission was such that the defendant could not have been prejudiced, it will compel him to plead within a limited time (Cunningham v. O'Gorman, 4 Ir. Jur., N. S. 221). If no time be fixed, see sect. 44, post, as to the time within which a defendant must plead after amendment of the writ or the copy of it. And whereas the disuse of the technical forms of action heretofore used may give rise to doubts respecting the validity of warrants of attorney and other writings wherein reference is made to such forms of action, and also as to the operation of Statutes of Limitations and other Statutes wherein actions are described or referred to by the like technical forms, and it is expedient that such doubts should be precluded by express enactment, be it therefore enacted as follows: 17. Nothing in this Act contained shall interfere with or affect the provisions of any Act relating to the arrest of any defendant on mesne process or before judgment (c). (c) The statutes relating to arrest upon mesne process are 3 & 4 Vict. c. 105, ss. 1-6; 4 & 5 Vict. c. 17; 11 & 12 Vict. c. 28, s. 15. And see further, upon the subject of arrest upon mesne process, the General Orders of 1854, 11-31, and the notes thereto. attorney and ings to re other writmain in force. 18. Warrants of attorney and other legal documents of Warrants of every kind, wherein reference is made to any particular form of action, may be acted upon and enforced by signing judgment or otherwise, in the form or manner authorized by this Act, instead of the form or manner agreed upon between the parties thereto (d). (d) See further, as to warrants of attorney, the General Orders of 1854, 93-96, and the notes thereto. Statutes re lating to ac main in force. 19. All statutes relating to actions, or the pleadings or other proceedings therein, or preliminary to the bringing of tions to rethe same, not hereby repealed, or inconsistent with the provisions of this Act, shall apply and be in force with reference to actions brought after the commencement of this Act, notwithstanding that such actions or the causes thereof may be described or expressed therein by reference to any particular form of action hereby abolished, or that some particular form or cause of action be required to be specified or contained in the said pleading or proceeding. With respect to the period of limitation within which per- Limitation of sonal actions shall be brought (e): action. certain actions. 3 & 4 Wm. 4, & 4 Vict. c. 27, s. 40; c. 105, s. 32; 7 & 8 Vist. c. 90, 8. 39; 21 dac. 1;. & 4 Wm. 4, c. 16, s. 3; 20. All actions for rent (ƒ) upon an indenture of demise, Limitation of all actions upon any bond or other specialty (g), or upon any judgment (h), statute staple, statute merchant, or recognizance, shall be commenced and sued within twenty years after the cause of such actions or suits, or the recovery of such judgment, but not after; all actions grounded upon any lending or contract, express or implied, without specialty, or upon any award, where the submission is not by specialty, or for any money levied on fieri facias; all actions of account or for 3 not accounting, other than for such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants (i); all actions for direct injuries to real or personal property; actions for the taking away, detention, or conversion of property, goods, and chattels; actions for libel, malicious prosecution and arrest, seduction, criminal conversation; and actions for all other causes which would heretofore have been brought in the form of action called c. 42, s. 3. |