John Naish Edmund Thomas Bewley.

The Common Law Procedure Acts, 1853, 1856, 1870: with an appendix ... online

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3. This Act may be cited for all purposes as " The Com-
mon Law Procedure Amendment Act, Ireland, 1870."

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Act.

Short title.



Actions for Dover, 8fc. 369

x. No writ of right of dower, or writ of dower under nihil RJ5* 1 ;

habet, and no plaint for freebench or dower in the nature of right of

any such writ, and no Quare impedit, shall be brought after J2S?<5*L

the commencement of this Act, in any Court whatsoever v but ^jj? 1 ""* 1

where any such writ, action, or plaint would now lie, either action*, and

in a superior or any other Court, an action may be commenced mencedby

by " writ of summons and plaint," issuing out of the superior ***<*

Courts of Common Law at Dublin, in the same manner as the and plaint,
writ of summons and plaint in an ordinary action, and in such
form as the Judge of the said Courts respectively shall from
time to time think fit to order (6).

The service of the writ, appearance of the defendant, pro- JJjJ^JJuiJy

ceedings in default of appearance, plead ings, judgment, exe- thereupon to

cution, and all other proceedings and costs upon such writ, ort£ary M ,n

shall be subject to the rules and practice which the Judges of acUon *
the said Courts respectively shall from time to time make and
prescribe, and which rules and practice shall be the same, as
nearly as may be, as the proceedings in an ordinary action
commenced by writ of summons and plaint.

In order to enable the said superior Courts and the Judges SirnuSons

thereof respectively to make rules and regulations, and to may ^ made

frame writs of summons and plaint, and proceedings for the andproceed-

purpose of giving effect to the provisions of this section, the }SShJJ amed

two hundred and thirty- third and two hundred and fortieth purpoaesof
sections of " The Common Law Procedure Amendment Act' ** on '
(Ireland), 1853/' shall be incorporated with this section, as
if those provisions had been severally herein repeated.

(0) By General Order, dated 25th April, 187 1, it is provided : —
1. The writ of summons and plaint in an action of dower shall be in the
form following, or as near thereto as may be : — F 0rm f

A. B., of Widow, ^ Court of plaint.

Plaintiff j Victoria, by the grace of God, of the

C. D M of Defendant. V United Kingdom of Great Britain and

~ ; — - Ireland, Queen, defender of the faith, *,

tount r of J and so forth, to the said C. D.,

Greeting.
C. D., the defendant, is summoned to answer the complaint of A. B., who
complains that A. B. was the lawful wife of £. B. since deceased. That the
said £. B. was seised of such an estate in the lands of [specifying the lands]
in the County of , as entitled the said A. B. to dower out of the

said lands.

And the plaintiff prays judgment against the said C. D. to recover one-
third of the said lands, with £ damages for the detention of her dower,
and costs of suit

Therefore, &c.
2 B



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37°



In certain
cases judge
of superior
Court* may
order cause
to be tried
in CiTil Bill
Court.



Where un-
liquidated
damage*
claimed.



Joinder of
causes of
action.



' Common Law Procedure Act, 1870.

2. The service of the said writ, the defence, judgment, execution, and all
subsequent proceedings and costs shall be subject to the same general rules
and practice as the proceedings in an ordinary action.

5. Where in any action of contract brought or commenced
in any of the superior Courts of Common Law at Dublin the
claim endorsed on the summons and plaint does not exceed
forty pounds (c), or where such claim, though it originally-
exceeded forty pounds, is reduced by payment, an admitted
set* off, or otherwise, to a sum not exceeding forty pounds (<f),
it shall be lawful for the defendant in the action, within eight
day 8 from the day upon which the summons and plaint shall
have been served upon him (e), if the whole or part of the
demand of the plaintiff be contested (/), to apply to the Court
in which the action is brought, or to any Judge of the said
superior Courts in chamber, for an order tiflft such ac ti on
should be tried in the civil bill court or oirTOf the crffftiill
courts in which the action might have been commenced (g) t
and on the hearing of such application the judge shall, on
proof that sufficient notice (A) thereof has been given to the
plaintiff or his attorney, unless there be good cause to the
contrary (i), order such action to be tried in such civil bill
court at the sessions to be named in such order, and thereupon
the plaintiff shall lodge the original summons and plaint,
which, if filed, shall be taken off the file for that purpose, and
delivered to the plaintiff, and the order with the clerk of the
peace of the county mentioned in the order, and the cause
and all proceedings therein shall be heard and taken in
such civil bill court as if the action had been originally com-
menced in such court (j) ; and the costs of the parties in re-
spect of proceedings subsequent to the order of the Judge of
the superior court shall be allowed according to the scale of
costs in use in the civil bill courts, and the costs of the pro-
ceedings previously had in the superior court shall be allowed
according to the scale in use in such latter court (jj).

(c) Properly speaking, no claim is endorsed on the summons and plaint
• except in cases where the claim is for a liquidated or money demand (ante, p.

9); and it has been therefore argued that the Court has no jurisdiction to remit
an action of contract not brought on foot of such a demand. The Court has,
however, jurisdiction in such a case to make an order remitting the cause
{Guy v. Hinde, Ir. R.5C.L 247).

(d) When two or more causes of action are joined in the same summons
aud plaint so as to combine counts in contract and in tort, or so as to make
the sum claimed exceed £40 in actions of contract, some doubt seems to exist



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Remitting Actions of Contract. 37 *

as to the power of the Court to remit In ordinary cases the Court may
direct separate records to be made up, where R is inexpedient that different
causes of action should be tried together {ante, p. 52) ; and it will probably
be held that where causes of action are joined for the purpose of endeavour-
ing to oust the jurisdiction of the Court under the present Statute, a similar

w,5lr. L.T. 94.

re been established as regards Within what
ilication may be made for an *}^ •f£ k »"
1 the first place, it has been ma 4«.
incorporated with the C. L. P.
, and therefore the days which
1 notices or other proceedings
,ys within which application is
. 4 C. L. 603 ; M'Donough v.
b long vacation are not among
id are therefore to be reckoned
ier held that the application
», and not the hearing of the
i tupra) ; and it is therefore
r of the eight days (exclusive
rhich the summons and plaint

hole or part of plaintiff's de- Must be bond
mand is bond fide contested, and the defendant's affidavit will not necessarily •*** conto8t -
be conclusive upon the point {Devlin v. Flaherty, Ir. B. 5 G. L 1 37).

(y) As to the Civil Bill Court in which the action might have been origi- J ?* 1 **,
nally commenced reference should be had to sect. 69 of the Civil Bill Act Court caQM
1 85 1 (14& 15 Vict, c 57), which provides that if any person shall have may be re-
and occupy any house, warehouse, counting house, shop, factory, or office for mitted.
the sale of goods or for carrying on any business in any county, he shall be
deemed to have a residence within such county for the purposes of the Act
See as to the construction of this section, ante y p. 362. emit

(A) Sufficient notice has been held to mean such notice as the Court shall noticef"
consider sufficient under the circumstances, and need not be two clear days
(HTDanough v. Brophy, Ir. R. 4 C. L. 485). ^^

(i) Before considering whether a cause is to be remitted to the Civil Bill J^£^^
Court, the Court must be satisfied that a bond fide contest exists between the mining
parties as to the existence or amount of the claim, note (/), s*pra. If a cause.
bond fide contest does exist, the onus lies on the plaintiff of showing why the
cause should be tried in a superior Court. Where the plaintiff and his wit-
nesses resided in England, and the expense of bringing them to the Civil Bill
Court would exceed the sum of £5 each, being the limit of the sum which
the Civil Bill Court has the power of awarding for the expenses of a witness
under 27 & 28 Vict. c. 09, s. 52, the Court refused to remit {Service v.'
Kennedy, 19 W. R. 287;; and where the plaintiff was a merchant residing
in London, and the defendant a trader residing in Donegal, an application
under the above section was likewise refused (Hall v. Miller, 5 Ir. L. T. 28).
Where the action is brought under {he Summary Procedure on Bill of Ex-
change Act (Ireland), 1861, the defendant should obtain leave to appear
and defend before applying to have ^he cause remitted (Kin sella v. Murphy,
Ir. R. 5 C. L. 7 1) ; and see further \% to when a case is such as to be fit to
be tried in the superior Court, note (0*) to next section.



ib



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37*



Common Law Procedure Act, 1870.



Power to
amend.

Taxation of
cotes.



Actions for
malicious
prosecution,
&c. brought
In superior
Courts may
be remitted
to Civil BUI
Court by
Judge.



(J) As to the power of the Chairman to amend defects and errors in the pro-
ceedings, see Thomas v. PutcM, 22 L. T. N. S. 474.

(Jj) When a cause is remitted, the Judge of the inferior Court has jurisdic-
tion over the costs of the suit for the purposes of taxation, both as regards
the costs incurred before and after the making of the order of reference
(Moocty v. Steward, 19 W. R. 16 j).

6. Any person against whom an action for malicious pro-
secution, illegal arrest, illegal distress, assault, false imprison-
ment, libel, slander, seduction, or other action of tort may be
brought in any of the superior Courts of Common Law at
Dublin, may, within eight days from the day upon which the
summons and plaint shall have been served upon him(jfc),
apply to the Court in which the action is brought, or to any
Judge of the said superior Courts in chamber (having pre-
viously made and filed in the proper office an affidavit (/)
setting forth that the plaintiff has no visible means (m) of
paying the costs of the defendant should a verdict not be
found for the plaintiff), for an order that unless the plaintiff
shall, within a time to be therein mentioned, give full security
for the defendant's costs to the satisfaction of the Master of
the said Court, (w), or satisfy the Judge that he has a cause of
action fit to be prosecuted in the superior Court (0), all pro-
ceedings in the action shall be stayed, or in the event of the
plaintiff being unable or unwilling to give such security, or
failing to satisfy the Judge as aforesaid, that the cause be
remitted for trial in the Civil Bill Court of the division of the
county in which the defendant usually resides,^) at the
sessions to be named in such order, and on the hearing of
such application the Judge shall, on proof that sufficient
notice(g) thereof has been given to the plaintiff or his attor-
ney, and if he is satisfied of the truth of the statements in
such affidavit, make such order accordingly ; and where any
such cause shall be remitted for trial in manner aforesaid the
plaintiff shall lodge the original summons and plaint, which,
if filed, shall be taken off the file for that purpose, and deli-
vered to the plaintiff, and the order with the Clejk of the-
Peace of the county named in the order, and thereupon the
said cause shall be deemed to be and shall be within the juris-
diction of the Civil Bill Court named in such order, and the
said Court shall have all and the same powers and jurisdiction
with respect to the said cause, as if the same had been origi-
nally within the jurisdiction of the said Court, and had been
commenced by process in the said Court (r); and the costs of



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Remitting Actions of Tort.



.373



the parties in respect of the proceedings subsequent to the
order of the Judge of the superior court shall be allowed
according to the scale of costs in use in the civil bill courts,
and the costs of the proceedings in the superior court shall
be allowed according to the scale in use in such latter
court (a).



(k) See ante, note (e).

(/) "Where an affidavit could not be made by the defendant so as to be
filed in time, an affidavit made by the defendant's attorney from his instruc-
tions was allowed to be used, and the motion directed to stand over so as to
allow of the defendant's affidavit being used (Cloran v. JReilly, 5 Ir. L. T.
43) ; and see as to the construction of similar provisions requiring an affidavit
to be made, or other act to be done by a party, Oxladev. N. B. Railway Co.,
12 C. B. N. S. 350; Dickson v. Neath and Brecon Railway Co., L. R.
4 Ex. 87 ; M*Kewan v. Bolt, 4 H. & N. 738. The defendant, in his affidavit,
should state all the substantial facts upon which he relies (Norton v. Law-
rence, 5 Ir. L. T. 94).

(m). The expression " visible means," employed in this section, has given rise
to considerable discussion as to the meaning to be attributed to it. In Henne-
gan v. Jackson, 19 W. R. 208, the plaintiff being a practising attorney, it
was held he could not be considered as not having visible means of paying
costs. In Counsel v. Garvie, Ir. R. 5 C. L. 72, it appearing that the plaintiff
was a shop assistant at a salary of £100 per annum, the Court held that be
had visible means of paying costs; and it is there stated that by visible means
is meant property which the defendant can reach to pay his costs, in the
event of his obtaining a verdict. See also Crawford v. Doted, 5 Ir. L. T. 4.

It should be remembered that even where the plaintiff has no visible
means of paying costs, yet if the cause of action is fit to be prosecuted in a
superior Court, an order to remit will not be made : note (o), post.

(n) The Master should fix the amount of security to be given, and satisfy
himself as to the solvency of the proposed sureties (Spence v. Duffy, 5 Ir. L.
T. 5). It will therefore be irregular to object to the solvency of the proposed
sureties when the parties go before the Judge to perfect the recognizances.
A reasonable time will be allowed, if asked for, for the purpose of gtfcng secu-
rity. In Cranston v. Scott, 1 9 "W. R. 157, a period of three weeks was allowed.

(o) No fixed rule can be considered as having been as yet established for
the purpose of determining when a cause of action is fit to be prosecuted in a
superior Court. The question is one for the discretion of the Court, and
depends mainly upon the circumstances of each case. The fact that the cause
of action is slander, and that more than £40 is claimed for damages, is not per
se sufficient to render a case a fit one for a superior Court (Cranston v. Scott,
Ir. R.4C. L.481).

Where the action is bona fide brought, and questions of law are likely to arise
more fit to be decided in a superior Court than before the Chairman, the case
will not be remitted, even though it is probable that less than £40 will be
recovered (Beid v. Stuart, Ir. R. 5 C. L. 68). The possibility that
a larger sum than £40 will be recovered, although not conclusive, will also
be taken into consideration in determining whether the cause of action
is fit for the superior Court (Kennedy v. Baxendah, Ir. R. 5 C. L. 74).
. 2 B



When to
apply.

Affidavit.



u Visible
means."



Giving secu-
rity.



Fit cause to
be prosecuted
in a superior
Court



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374



Common Law Procedure Ad, 1870.



Usual
residence.



Jurisdiction
of chairman.



It is there laid down per Fitsgerald, J. (p. 81), that the plaintiff should lay
before the Court or Judge circumstances sufficient to establish that his action
is not a sham, frivolous, oppressive, or vexatious action, and that it has been
instituted bond fide to enforce some real and substantial cause of action, which
ought to be tried in the superior Court in preference to the inferior Court ;
#. g. y that the injury complained of is so serious that the damages mar pro-
bably be large ; or t hat the action may give rise to a difficult question of la w ; or a
complicated state of facts ; or some constitutional question ; or a questicn on
title ; or may seriously involve character. See also as to when a case it to be
considered fit to be tried in a superior Court, Craven v. Smith, L. B. 4 Ex.
146; Taylor y. Cast, L. R. 4 C. P. 614; Norton v. Lawrence, 5 Ir. L. T.
94. In all such cases it should be remembered that the onus lies on the
plaintiff of showing that the case is a fit one for the superior Court Where
on a motion to remit, it appeared that a serious question of law as to the
duty of the defendants to keep a certain street in repair, free from obstruc-
tion, and properly lighted, would arise, the Court, nevertheless, made an
order remitting the cause, on the defendants undertaking to admit their duty,
and so preclude the question of law from being raised (Gassy v. The Mayor,
£c, of Dublin, Ir. R. 5 C. L. 227).

(p) The "usual" residence spoken of above means residence as defined by
the Civil Bill Act {Kennedy v. Baxendale, Ir. R. 5 C. L. 74) ; and by sec 69
of that Act a person is to be considered as residing in any county where he
has and occupies any house, warehouse, counting-house, shop, factory, or
office for the sale of goods, or for carrying on any business. Con-
sequently, although the defendant usually resides in England, yet if
he has an office for carrying on business in Ireland, the Court has jurisdic-
tion to remit (Kennedy v. Baxendale, ubi supra). For the purpose of
residence within the meaning of the Act referred to, a railway company
is to be considered as residing at every place where it has a ticket office
along its line (APMahon v. Irish N. W. Railway Co., 19 W. R. 212), and
see further ante, p. 362. The Court has jurisdiction under this section to
remit the cause only to the county where the defendant resides, and the
consent of the parties cannot enable the Court to remit it elsewhere {Beady
v. Odium, 19 W. R. 135).

!q) See note (A), supra,
r) As to the amount of damages which the Chairman may award when
a cause Has been remitted to him, see Kennedy v. Baxendale, Ir. R. 5 G. L
74, where, however, the question was left undecided.
(«) See note (J ), supra.



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b/Googl



APPENDIX.



PARTI.

CONSISTING OP THE GENERAL ORDERS OP THE 8UPERIOR COURTS
OF COMMON LAW.



GENERAL ORDERS IN THE QUEEN'S

BENCH, COMMON PLEAS, EXCHEQUER OF PLEAS,

AND EXCHEQUER CHAMBER.

Bated nth day of January, 1854.



In pursuance of a statute passed in the session of Parliament
holden in the 16th and 1 7th years of the reign of Queen Victoria,
entitled "An Act to amend the Procedure in the Superior
Courts of Common Law in Ireland," and of all other statutes
and powers in that behalf —

It is Ordered,

That the following shall be the General Orders of the Courts Former ge-
of Queen's Bench, Common Pleas, Exchequer of Pleas, and ^mSbST
Exchequer Chamber ; and that all other General Orders of the except thaw
said Courts, or any of them, shall be considered to be abolished, speejj^y
save and except as regards any step or proceeding heretofore 8aT
taken, and save as hereinafter provided. That all former Orders
which are hereinafter simply repeated, shall continue to operate
as if the same had not been disturbed ; and that all variations of
former orders, and all new orders shall take effect from the date
of these rules, as to all actions thereafter to be commenced, and
also as to actions then depending, so far as the same may be ap-
plicable thereto ; and where the same shall not be so applicable,
the general orders hitherto in force shall be deemed to be sub-
sisting, and shall apply to such actions : provided, nevertheless,
that nothing contained in this order or the following orders
shall apply to or affect the orders of the Court of Queen's Bench

1



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ii Appendix

at the crown side, or actions of Quart Impedil therein ; the
orders of the Court of Common Pleas in relation to fines and
recoveries, or in relation to the statute passed in the 4th and 5th
years of the reign of his late majesty King William the rv.,
entitled " An Act for the abolition of Fines and Recoveries, and
for the substitution of more simple modes of Assurance in Ire-
land," or actions of Quare Tmpeait therein ; or the orders of the
Court of Exchequer at the revenue side thereof.

And it is further Ordered,
II.

Glossary. That whenever any word is used in any of the following

General Orders, importing the singular number, or the masculine
gender only, the same shall apply to several persons as well as
one person, and to bodies corporate as well as to individuals,
and to females as well as males ; and the word " Judge " shall
be taken to mean also " Baron ; " and the word " County "
shall include (when necessary and consistent) any county of a
city or county of a town or city, or county of a place, or city
and county as the case may be ; and the word " Court " shall
apply to a Judge or Baron sitting alone or in chamber, as well as
to the full Court; and the word "Party" or "Person" shall
extend to and include any corporation or other public body ; and
whenever the entry of a side-bar rule, " as of course " is autho-
rized, it shall be understood that such rule may be entered with-
out the production of any affidavit or other document to the
officer ; and the word " Affidavit " shall include an affirmation
or declaration made by any person who is empowered to give
evidence by affirmation or declaration in lieu of oath ; and none
of the following rules requiring the affidavit of, or any act to be
done by the attorney, or the signature of attorney or counsel,
or service on the attorney, shall apply to cases where plaintiff or
defendant shall sue or defend in person ; but all such acts shall
be done by, and notices given to the party so suing or defending
in person.

COUESE OF BUSINESS OF THE COURTS.

Motions for 3. Motions for prohibitions or attachments, or for any relief
^mavbe 8 ' or orc * er ag^nst a sheriff or against an attorney, grounded on
made during the jurisdiction of the Court over them as officers, may be made
sitting of on any day during the sitting of the Courts.

Order of 4. On the last day of term only, members of. the bar shall

aTttabor? ^ke precedence according to juniority, without prejudice to the
Attorney or Solicitor-General, moving officially in Her Majesty's
causes, at any time they may seem convenient.

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General (h+ers, 1854. *"



5. The days for the admission of attorneys shall be the first Days for

- - - - - _ _ . . . admission

attorneys.



and last days of the term, and every Monday in term. admission of



COMPUTATION OF TIME.

6. When, by any rule, order, or proceeding, time is to be Mode of
computed by days, it shall be inclusive or exclusive of the holy- f^ ut ^f
days uuder the Common Law Procedure Amendment Act (Ire- Beg.Gen.,
land), 1853, as is by that statute directed; and when by the h.t., I803,
month, it shall be considered a calendar month ; and when by
the year, twelve calendar months ; and in all cases it shall be
exclusive of the first and inclusive of the last day, unless the last
be a holiday under the Common Law Procedure Amendment
Act (Ireland), 1853, when the following day shall be included.

The holidays to be observed and kept in the Superior Courts are pre- Holidays,
scribed by section 132 of the C. L. P. Act, 1853 ; by which section it is
also directed that the days in question are not to be reckoned or included
in any notices or other proceedings except notices of trial and inquiry, and
that Sundays are not to be reckoned or included in any notice or pro-
ceeding whatsoever. It is also provided by that section that when the
last day included in any such notice of trial or inquiry shall happen to be
a holiday, the next day which is not a holiday is to be considered as the
last of the days in such notice.

The above order provides, as will be seen, that in all cases of computa- How time
tion of time it is to be reckoned exclusive of the first and inclusive of the reckoned,
last day — unless when the last is a holiday. It must, however, be re-
membered that when the time for the doing of an act is fixed by statute,



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