Parol dis charge. Where replication good. Court or Judge may strike out equitable] blea or eplication. 17 Is Vict. c. 125, s. 86. Demurring. Superior Law may in pjectment defendant on trust to pay the debt, the replication was held to be bad (Gulliver v. Gulliver, 1 H. & N. 174). So, also, a parol discharge from a stipulation contained in a deed or a contemporaneous parol variation of a term in a contract reduced into writing, cannot, in general, be relied on by way of reply to a plea or defence founded on the stipulation or term so varied. See Thames Ironworks Co. v. Royal Mail Steam Packet Co., 13 C. B. N. S. 358; Reis v. Scottish Equitable Life Assurance Co., 2 H. & N. 19); and the other cases referred to, ante, p. 351. Where to an action for work and labour the defendant pleaded setting out the conditions of a certain deed between the parties, and inter alia, that it was necessary that the plaintiff should obtain the certificate of an engineer, and that the certificate had not been obtained; the Court refused to allow the plaintiff to reply on equitable grounds that the engineer was in collusion with the defendant for the purpose of withholding from the plaintiff the moneys justly due to him (Killen v. Byrne, 3 Ir. Jur. N. S. 91). Where, however, the matter relied on does not contradict the legal right relied on by the declaration, but merely goes to show that it is inequitable for the defendant to rely upon the legal defence he has pleaded, the replication will be good. Thus where a release was pleaded, an equitable replication alleging that the plaintiff was merely a trustee of the money sought to be recovered, and that the release was, as the defendant knew, executed in fraud of the cestuique trust, was held to be good (De Pothonier v. De Mattos, El. Bl. & El. 461); and see Lyall v. Edwards, 6 H. & N. 337; Wilson v. Gabriel, 4 B. & S. 243; and as to the power of the Court at Common Law to set aside a plea relying on a fraudulent release, see 2 Sm. L. C. 5th ed., p. 351. Where to an action on the money counts the defendant pleaded that he had with the plaintiff's consent delivered a promissory note on account of the debt to a third party who still held it, an equitable replication, alleging that the third party was a trustee for the plaintiff's, of which the defendant had notice, and that the note was overdue and unpaid, was held to be good (National Savings Banks Association v. Tranah, L. R. 2. C. P. 556). 88. If it shall appear to the Court or a Judge that any such equitable pleading cannot be dealt with by a Court of Law so as to do justice between the parties, it shall be lawful for such Court or Judge to order the same to be struck out, on such terms, as to costs and otherwise, as may seem reasonable (c). (c) In place of applying to have the equitable pleading struck out, the party may demur (Turner v. M'Auley, 6 Ir. C. L. R. 248); and when the question in the cause is fairly arguable the proper course is to demur (Burgoyne v. Cottrell, 24 L. J. Q. B. 28 ; Elliott v. Mason, 26 L. J. Ex. 175; Clarke v. Reilly, Ir. R. 2 C. L. 422). 89. It shall and may be lawful for any of the superior Courts of Common Law in Ireland, in any action of ejectment on the title to be commenced after the passing of this Act, to make an order directing temporary bars to be waived and the real title tried in such ejectment, in any case in which it shall order real tried in such ejectment. be made to appear to the satisfaction of such Court that a title to be decree or decretal order to the same effect would be pronounced by the Court of Chancery upon a bill or cause petition filed for the purpose of having temporary bars waived, but upon such terms or conditions as to said Court shall seem just (d). (d) There is no section in the English Common Law Procedure Acts corresponding to the above. In Formerly no power was possessed by a Court of Law of preventing a defendant in ejectment from setting up, in answer to the action, the existence of an outstanding legal term or estate, even though the term or estate was held in trust for the plaintiff. A Court of Equity would, however, upon the principle of preventing undue and vexatious litigation, restrain the defenIn such cases the dant from making an inequitable use of such a defence. equitable jurisdiction was auxiliary to the administration of justice in the Court of Law, and where there was no counter equity the Court would never refuse to remove temporary bars, to enable the parties to try their right (Blennerhassett v. Day, 2 Ball & B. 132, 137, per Lord Manners, C). asmuch, however, as the Court proceeded upon the principle that the party in possession ought not in conscience to use an accidental advantage, to protect his possession against a real right in his adversary, if there was any counter equity in the circumstances of the case which met the reasoning upon the principle, as for instance, if fraud was imputable to the plaintiff, or the defendant was a purchaser for valuable consideration and without notice, the Court would not interfere (see Wall v. Wilkinson, 8 Ir. Ch. R. 326); and in general it should be shown that it would be inequitable on the part of the defendant to set up the outstanding term. In Fraund v. Turner, Fitz. 105, it seems to have been considered that a volunteer had no equity to restrain the setting up of a term. No power at Law to restrain the setting up of Common temporary bars. Jurisdiction of Courts of Equity. By the above section the same powers have been conferred upon the Statutory Courts of Law of ordering temporary bars to be waived, which were for- power. merly exercised by the Courts of Equity, and accordingly the Courts of Law act upon the same principles as were formerly acted upon in Equity. Thus, When exerwhere an action was brought by a devisee claiming under a will, the defen- cised. dant was restrained from setting up certain leases which had been made by the testator (Fitzgerald v. Westropp, 7 Ir. C. L. R. 473); and in Olden v. Stokes, 7 Ir. C. L. R. 602, a defendant was restrained from setting up a lease granted by the plaintiff expectant on the determination of the detendant's interest. Where an action of ejectment was brought by a tenant in tail under a settlement, against certain squatters who had taken possession during the life of the tenant for life, the defendants were restrained from setting up the prior estates limited by the settlement, to trustees for payment of portions, &c. (Eagar v. Maunsell, Ir. R. 1 C. L. 159). In Baker v. Mellish, 10 Ves. 544, it was held that a landlord against whom a judgment had been obtained in ejectment by reason of his own negligence, has an equity to restrain his tenant and those to whom he had attorned from setting up the lease in answer to an ejectment brought by him. And see also, Griffiths v. Edwards, 2 Jur. N. S. 584. Nature of the bar which may be ordered As regards the nature of the bar which may be ordered to be waived, it should be remembered, as stated in Stansbury v. Arkwright, 6 Sim. 481, 485, that an outstanding legal estate may be such as to make it impossible to be waived. for the plaintiff to recover in ejectment. If for instance (where the ejectment is brought by a devisee), the legal estate was not vested in the testator when he made the will, the plaintiff on his own showing could not recover in ejectment. In Blennerhassett v. Day, 2 B. & B., 132, 137, it seems to have been considered that though the whole legal estate was vested in a mortgagee, the Court might restrain the setting up of the outstanding mortgage by the defendant, and see Eagar v. Maunsell, Ir. R. 1 C. L. 159; see, however, Taylor v. Larkin, 5 Ir. Jur. N. S. 17. In Thornton v. Court, 3 D. M. & G. 293, an action having been brought upon a covenant for quiet enjoyment, the defendant was restrained from setting up by way of plea an assignment of his entire interest made by the plaintiff to a mortgagee. The distinction would seem to be between cases where the plaintiff never had a legal estate, and where, although he had a legal estate, he has parted with it for some temporary purpose, or has carved a lesser interest out of it. How order to be obtained. Actions on lost instruments. 17 & 18 Vict. c. 125, s. 87. Loss of a negotiable instrument. Where bill destroyed. As regards the application it must be made upon notice. As to whether the application must be made to the Court or may be moved before a Judge in Chamber see Eagar v. Maunsell, Ir. R. 1 C. L. 159; Taylor v. Larkin, 5 Ir. Jur. N. S. 173 (n). In the former of those cases it was held that the notice of motion need not specify the particular estates, the setting up of which it is sought to restrain; and an order will be made in general terms that temporary bars be waived and the real title in the action between plaintiffs and defendants be tried. The plaintiff must show in support of his application the existence of an outstanding estate, or the probability of one being As to the form of affidavit in support of the application, see Eugar v. Maunsell, ubi supra. set up. any 90. In case of action founded upon a bill of exchange or other negotiable instrument, it shall be lawful for the Court or a Judge to order that the loss of such instrument shall not be set up, provided an indemnity is given, to the satisfaction of the Court, Judge, or Master, against the claims of any other person upon such negotiable instrument (e). (e) In an action upon a negotiable instrument, a defence alleging that the instrument has been lost is, at Common Law, a good answer to the action (Ramsay v. Crowe, 1 Ex. 167); and where in place of suing upon the bill, &c., the plaintiff sues upon the consideration, a defence alleging that the defendant has given a negotiable instrument in payment, which has been lost, is good (Crowe v. Clay, 9 Ex. 604). As to relying upon such a defence in the case of a circular uote, see Conflans Stone Quarry Co. v. Parker, L. R. 3 C. P. I. Where, however, the bill has been destroyed, the destruction is no answer to the action (Wright v. Lord Maidstone, 1 Kay. & J. 701); and secondary evidence is admissible (Blackie v. Pedling, 6 C. B. 196); and where the loss of the instrument is relied on, such loss must be specially pleaded, otherwise secondary evidence is admissible (Charnley v. Grundy, 14 C. B. 608). Where the instrument is not negotiable, the loss of it is no answer to the action (Wain v. Bailey, 10 A. &. E. 616). Such then being the rules of the Common Law applicable to actions on lost Proceeding instruments, the only remedy open to a plaintiff where such a defence was in Equity." raised, was by proceeding in Equity to enforce the delivery of a new bill or note, or payment upon giving a proper indemnity. See Byles on Bills, roth ed., p. 376. By the present section it is, however, no longer necessary to proceed in Equity in such cases, and the Court of Law may prevent the loss from being set up upon a proper indemnity being given. An action upon a In what cases bank note is within the provisions of the Act (M'Donnell v. Murray, 9 Ir. the section C. L. R. 495); and in Ringrose v. Blizard, 2 F. & F. 375, the action applies. having been brought upon the consideration, it was held that the Court might under the above section restrain the defendant from pleading a lost bill. It may be doubted, however, whether the ruling in that case was correct; and in Nash v. Macken, Ir. R. 5 C. L. 51, the Court of Exchequer, under similar circumstances, allowed the plaintiff to amend by inserting a count upon the bill. A Staying As to the procedure to be adopted by a plaintiff who seeks to avail himself Procedure. of the provisions of the Act, see Clarke v. Bowman, 7 Ir. C. L. R. 49. It will be prudent to serve a proper consent before applying to the Court. bond is the proper instrument of indemnity to be given (Clarke v. Bowman, ubi supra). action. Jurisdiction under There is no power under this section to order a stay of proceedings, upon the application of the defendant, although thedefendant undertakes to pay the 17 & 18 Vict. debt and costs (Arangare v. Scholefield, 1 H. & N. 494). c. 104. 91. The Superior Courts or any Judge thereof may, upon c. 125, s. 55. summary application, by rule or order, exercise such and the like jurisdiction as may, under section 514 of the Merchant Shipping Act, 1854, be exercised by any Court of Equity (f). (f) By that section it is provided that "in cases where any liability has been or is alleged to have been incurred by any owner in respect of loss of life, personal injury, or loss of or damage to ships, boats, or goods, the several claims are made or apprehended in respect of such liability, then, subject to the right hereinbefore given to the Board of Trade of recovering damages in the United Kingdom in respect of loss of life or personal injury, it shall be lawful in England or Ireland for the High Court of Chancery, and in Scotland for the Court of Session, and in any British possession for any competent Court, to entertain proceedings at the suit of any owner for the purpose of determining the amount of such liability, subject as aforesaid, and for the distribution of such amount rateably amongst the several claimants, with power for any such Court to stop all actions and suits pending in any other Court in relation to the same subject matter; and any proceedings entertained by such Court of Chancery or Court of Session, or other competent Court, may be conducted in such manner and subject to such regulations as to making any persons interested parties to the same, and as to the exclusion of any claimants who do not come in within a certain time, and as to requiring security from the owner, and as to payment of costs, as the Court thinks just." Proceedings in case of several claims being made ship. on owner of Penalty on 92. Any person who shall, upon any examination upon oath or affirmation, or in any affidavit in proceedings under evidence. c. 125, s. 59. 17 & 18 Vict. this Act, wilfully and corruptly give false evidence, or wilfully and corruptly swear or affirm anything which shall be false, being convicted thereof, shall be liable to the penalties of wilful and corrupt perjury. 93. Where an action would, but for the provisions of "The Common Law Procedure Amendment Act (Ireland), 1853," have abated by reason of the death of either party, and in which the proceedings may be revived and continued under that Act, the defendant or person against whom the action may be so continued may apply by notice to compel the plaintiff, or person entitled to proceed with the action in the room of the plaintiff, to proceed according to the provisions of the said Act within such time as the Court or Judge shall order; and in default of such proceeding the defendant or other person against whom the action may be so continued as aforesaid shall be entitled to enter a suggestion of such default, and of the representative character of the person by or against whom the action may be proceeded with, as the case may be, and to have judgment for the costs of the action and suggestion against the plaintiff, or against the person entitled to proceed in his room, as the case may be, and in the latter case to be levied off the goods of the testator or intestate (g). (g) Under the provisions of the C. L. P. Act, 1853, enabling an action to be proceeded with in case of the death of either party (ante, pp. 180-189), there were only two cases in which the defendant or his representative could take proceedings to continue the action. The first was where one of several plaintiff's or defendants died (ante, p. 182), the other was where the death took place between verdict or nonsuit and judgment, and the judgment was entered within two terms (unte, p. 186). In the other cases provided for by the Act-that is to say, in the case of the death of a sole or surviving plaintiff or defendant, or where the death took place between interlocutory and final judgment, the plaintiff or his representative was the only party who could proceed. Now, however, the defendant may in the several cases referred to proceed in the manner prescribed above. Independent of the statutory provisions referred to, the defendant or his representative may in certain cases mark judgment after death, nunc pro tune (ante, p. 181); and as to allowing the representative of a deceased defendant to move for a new trial, see ante, p. 187. The defendant or his representative cannot proceed under this section in any cases other than where the right survives (Maddison v. Leitrim, Ir. R. 3 C. L. 601; Chamberlaine v. Drumgoole, 13 Ir. C. L. R. Ap. 1). In the latter case an action was brought against an executor as such, and the defendant having died it was held that his executor could not apply to the Court under the present section, upon the ground that the action did not survive against the personal representative of the deceased defendant, within |