John Naish Edmund Thomas Bewley.

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

. (page 66 of 76)
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and state that he subscribes as such attorney.
Warrant*, ' XII. And be it enacted, that a warrant of attorney to confess
formally judgment or cognovit actionem (save and except as aforesaid) not
executed executed in manner aforesaid, shall not be rendered valid by
invalid. proof that the person executing the same did in fact understand
the nature and effect thereof, or was fully informed of the
same,
^warrant ^Q V. And be it enacted, that if such warrant of attorney shall
oV attorney, be given subject to any defeasance or condition, such defeasance
&c.,to be or condition shall be written on the same paper on which such
tnesame 11 warrant of attorney shall be written, before the time when the
paper. same, or a copy thereof respectively, shall be filed, otherwise

such warrant of attorney shall be null and void to all intents and
purposes,
officer of XV. And be it enacted, that the said officer of the said court

keepnbook m wn i cn 8Ucn warrant of attorney or copy thereof shall be filed
containing shall cause every such warrant of attorney in any personal action,
,i "rti nd i an( ^ ever 7 C< W thereof filed in his said office, to be numbered,
of each war- and shall keep a book or books in his said office in which he
rant of shall cause to be fairly entered an alphabetical list of every such
attorney. warran t of attorney, containing therein the names and additions
and descriptions of the respective defendants or persons giving
such warrants of attorney, and also the names, additions, and
descriptions of the plaintiffs or persons in whose favour the same
shall have been given, together with the number and dates of
the execution, and filing of the same, or of a copy thereof re-
spectively, and the sums for which judgment is to be entered up,
and also the sums which are specified to be paid by the defeasance
or conditions in each warrant of attorney, and the times when
the same are thereby made payable, according to the form con-
tained in the schedule (B.) to this act annexed, which said book
or books, and every warrant of attorney or copy thereof, filed in



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Statutes relating to Procedure and General Matters. xcvii

the said office, shall be searched and viewed by all persons at all
seasonable times, paying for every search against each person exe-
cuting such warrant of attorney the sum of sixpence, and no more.

XVI. And be it enacted, that there shall be paid for tiling and PeG forming
entering such warrant of attorney, or a copy thereof as aforesaid, warran •
the sum of one shilling and no more.

XVII. And be it enacted, that any person shall be entitled to Office copy
have an office copy of each warrant of attorney, or of the copy {J!|£ing for.
thereof, filed as aforesaid, in like manner as office copies of judg-
ments in each such court respectively.

XVIII. And be it enacted that it shall be lawful for any of Satisfaction
the Judges of the Court in which the said warrant of attorney or ^J^ on
copy thereof is filed to order a memorandum of satisfaction to be warrant°of
written upon such warrant of attorney, or copy thereof respee- attorney,
tively as aforesaid, if it shall appear* to him or them that the

debt for which such warrant of attorney is given as a security
shall have been satisfied or discharged.

XXVI. And be it enacted that every judgment debt due upon Judgment
any judgment not confessed or recovered for any penal sum for Jyjjjj*
securing principal and interest shall carry interest at the rate of interest.
four pounds per centum per annum from the time of entering up

the judgment, or from the time of the commencement of this
act in cases of judgments then entered up and not carrying
interest, until the same shall be satisfied, and such interest may
be levied under a writ of execution on such judgment

XXVII. And be it enacted that all decrees and orders of the Decree n»<\
Court of Chancery, and of the Court of Exchequer at the Equity court* or
side thereof, and all rules of any of the superior Courts of Com- Equity, &.-.,
mon Law, and all orders of the Lord Chancellor or Master of the t J h< J v J f
Rolls, or of the Court of Commissioners of Bankruptcy, and all Judgments
orders of the Lord Chancellor in -matters of lunacy, whereby

any sum of money, or any costs, charges, or expenses, shall be
payable to any person, shall have the effect of judgments in the
Superior Courts of Common Law, and the persons to whom any
such monies or costs, charges or expenses, shall be payable shall
be deemed judgment creditors within the meaning of this act ;
and all powers hereby given to the Judges of the superior Courts
of Common Law with respect to matters depending in the same
Courts shall and may be exercised by the Courts of Chancery and
Exchequer at the Equity side thereof with respect to matters there-
in depending, and by the Lord Chancellor, Master of the Rolls, and
Court of Commissioners of Bankruptcy respectively in matters of
bankruptcy, and by the Lord Chancellor in matters of lunacy ;
and all remedies hereby given to judgment creditors are in like
manner given to persons to whom any monies or costfe, charges,
or expenses, are by such orders or rules respectively directed to
be paid ; and the date of the same, and amount due on foot
thereof, shall be stated in any petition for a receiver under the

7

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XCV1U



Appendix,



Executors
may bring
actions for
injuries to
the real
estates of



said act of the fifth and sixth years of the reign of His
late Majesty King William the Fourth, and this act, as in the
case of a petition founded on a judgment entered or recovered in
any of such superior courts of law as aforesaid.

XXXI. 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 wrongs done by a person deceased
«,— «~ - * n n * 8 lifetime to another in respect of his property, real or per-
the deceased; sonal ; for remedy thereof be it enacted, that an action of trespass
or trespass on the case (as the case may be) may be maintained
by the executors or administrators of any person deceased for any
injury to the real estate of such person committed in his life-
time for which an action might have been maintained by such a
person, so as such injury shall have been committed within six
calendar months before the death of such deceased person, and

Srovided such action shall be brought within one year after the
eath 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 any wrong committed by him in his lifetime
elecutore for to another in respect of his property, real or personal, so as such
an njury o j n j ury ^^j ^ &ve j^^ 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 administra-
tors 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.

XL. And be it enacted, that no plea in abatement for a mis-
nomer shall be allowed in any personal action, but that in all
cases in which a misnomer 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 sum-
mons, 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.
XLI. And be it enacted, 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 let-
ters 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 iui-
tial 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.



anfl actions
may be
brought
against



property,
real or
personal,
by their tes-
tator.



Misnomer
not to be
pleaded in
abatement.



Initials of
names may
be used in
some cases.



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Statutes relating to Procedure and General Matters. xcix

XLII. And be it enacted, that no wager of law shall be here- JJjbw ot
after allowed. abolished.

XLIII. And be it enacted, that an action of debt on simple ^ onof
contract shall be maintainable in any court of Common Law gfmp^con-
against any executor or administrator. tract

XLV. And be it enacted, that from and after the first day of Jj£jJ£
January, one thousand eight hundred and forty-one, the Sheriff deputies to
of each county in Ireland shall severally name a sufficient deputy, be resident
who shall be resident or have an office within one mile from the DuWin *
Four Courts, Dublin, for the receipt of writs, granting warrants
thereon,'niaking returns thereto, and accepting of all rules and
orders to be made on or touching the execution of any process or
writ to be directed to such Sheriff.

LIIL And be it enacted, that upon all debts or sums certain, J"7
payable at a certain time or otherwise, the jury on the trial of ^JS^,
any issue, or on any inquisition of damages, may, if they shall interest tt^on
think fit, allow interest to the creditor at a rate not exceeding debte -
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 ; and
provided also, that such interest so to be allowed by such jury
shall not be so allowed for any period exceeding six years.

LIV. And be it enacted, that the jury on the trial of anv issue, in certAin
or on any inquisition of damages, may, if they shall think nt, give *^°™ a y ,e
damages in the nature of interest, for any period not exceeding six £Jve damans
years, over and above the value of the goods at the time of the in the
conversion or seizure, in all actions of trover or trespass de bonis jJSJSest?
asportatis, and over and above the money recoverable in all
actions on policies of assurance made after the passing of this
Act.

LV. And be it enacted, that if any person shall sue out any J^STjJj
writ of error upon anv judgment whatsoever given in any Court on auJJnts
in any action personal, and the Court of Error shall give judg- of en-or
ment for the defendant thereon, then interest shall be allowed by [^jf^
the Court of Error for such time as execution has been delayed execution
by such writ of error for the delaying thereof. deta^ 11

LVI. And be it enacted, that in everv action brought by any Executors
executor or administrator in right of the testator or intestate, Jj^Sf of the
such executor or administrator shall, unless the Court in which testator to
such action is brought, or a Judge of any of the said Superior JJJJ^* 8 in

J* nonsuit, Uc.

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c Appendix.

Courts shall otherwise order, be liable to pay costs to the defen-
dant in case of being nonsuited, or a verdict passing against the
plaintiff, and in all other cases in which he would be liable if
such plaintiff were suing in his own right upon a cause of action
accruing to himself ; and the defendant shall have judgment for
such costs, and they shall be recovered in like manner.
0ne ™J*f n LVIL And be it enacted, that where several persons shall be
defendants in made defendants in any personal action, and any one or more of
any action them shall have a Nolle prosequi entered as to him or them, or
» a noiie u P° n tne ***** °* 8ucn ^i 011 sna U nave a verdict pass for him or
proseqnior them, every such person shall have judgment for and recover his
Vn^b ^ reasonable costs, unless, in the case of a trial, the Judge before
costs. * e whom such cause shall be tried shall certify upon the record,
under his hand, that there was a reasonable cause for making
such person a defendaut in such action.
Where nolle LVIII. And be it enacted, that where any Nolle prosequi shall
entered upon have been entered upon any count, or as to part of any declara-
auy count, tion, the defendant shall be entitled to ana have judgment for
c " and recover his reasonable costs in that behalf.

* l frefacb£ LIX " And he it: enact ^> tnat in a 11 write of S*™ fa* * tne
and plaintiff plaintiff obtaining judgment on an award of execution shall re-
or defendant cover his costs of suit upon a judgment by default, as well as
?onave Urrer ' u P° a a judgment after plea pleaded or demurrer joined ; and
costs. that where judgment shall be given either for or against a plain-

tiff or demandant, or for or against a defendant or tenant, upon
any demurrer joined in any action whatever, the party in whose
favour such judgment shall be given shall also have judgment to
recover his costs in that behalf.
Costs of LX. And whereas it is provided in and by a statute passed in

special juries j. ne session of Parliament held in the third and fourth years of
nonsuit. the reign of his late Majesty King William the Fourth, intituled
An Act for consolidating and amending the law relative to Jurors
c. 9it 4 an d Juries in Ireland, that the person or party who shall apply
for a special jury shall pay the fees for striking such jury, and
all the expenses occasioned by the trial of the cause by the same,
and shall not have any further or other allowance for the same,
upon taxation of costs, than such person or party would be en-
titled unto in case the cause had been tried by a common jury,
unless the Judge before whom the cause is tried shall, imme-
diately after the verdict, certify under his hand, upon the back
of the record, that the same was a cause proper to be tried by a
special jury : and whereas the said provision does not apply to
cases in which the plaintiff has been nonsuited, and it is expe-
dient that the Judge should have such power of certifying as
well when a plaintiff is nonsuited as when he has a verdict against
him ; be it therefore enacted, that the said provisiou of the said
last-mentioned Act of Parliament, and everything therein con-
tained shall apply to cases in which the plaintiff shall be non-
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Statutes relating to Procedure and General Matters. ci

suited as well as to cases iD which a verdict shall pass against
him.

LXIII. And whereas it is expedient to render references to ^Stm- 11
arbitration more effectual ; be it enacted, that the power and an- tion by rule
thority of any arbitrator or umpire appointed by or in pursuance °* court * & c «
of any rule of Court, or Judge's order, or order of Nisi Prius, in vocable
any action now brought, or which shall be hereafter brought, or without
by or in pursuance of any submission to reference containing an ^Jj. ' tbo
agreement that such submission shall be made a rule of any of
her Majesty's Courts of Record, shall not be revocable by any
party to such reference, without the leave of the Court by which
such rule or order shall be made, or which shall be mentioned in
such submission, or by leave of a Judge ; and the arbitrator or
umpire shall and may and is hereby required to proceed with the
reference, notwithstanding any such revocation, and to make
such award, although the person making such revocation shall
not afterwards attend the reference ; and that the Court, or any
Judge thereof, may from time to time enlarge the term for any.
such arbitrator making his award.

LXIV. And be it enacted, that when any reference shall have Power 1 t JL
been made by any such rule or order as aforesaid, or by any sub- Sundance
mission containing such agreement as aforesaid, it shall be lawful of witnesses
for the Court by which such rule or order shall be made, or
which shall be mentioned in such agreement, or for any Judge,
by rule or order to be made for that purpose, to command tne
attendance and examination of any person to be named or the
production of anv documents to be mentioned in such rule or
order ; and the disobedience to any such rule or order shall be
deemed a contempt of Court if, in addition to the service of such
rule or order, an appointment of the time and place of attendance
in obedience thereto, signed by one at least of the arbitrators,
or by the umpire, before whom the attendance is required, shall
also be served either together with or after the service of such
rule or order ; provided always, that every person whose atten-
dance shall be so required shall be entitled to the like conduct
money, and payment of expenses and for loss of time, as for and
upon attendance at any trial ; provided also, that the application
made to such Court or Judge for such rule or order shall set
forth the county where such witness is residing at the time, or
satisfy such Court or Judge that such person cannot be found ;
provided also, that no person shall be compelled to produce,
under any such rule or order, any writing or other document
that he would not be compelled to produce at a trial, or to attend
at more than two consecutive days, to be named in such order.

LX V. And be it enacted, that when in any rule or order of Power for
reference, or in any submission to arbitration containing an ^"nder"a
agreement that the submission shall be made a rule of Court, rule of court
it shall be ordered or agreed that the witnesses upon such re- toadintaigter

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cii Appendix*

ference shall be examined upon oath, it shall be lawful for the
arbitrator or umpire, or any one arbitrator, and he or they are
hereby authorized and required, to administer an oath to such
witnesses, or to take their affirmation in cases where affirmation
is allowed by law instead of oath ; and if upon such oath or
affirmation any person making the same shall wilfully and cor-
ruptly five any false evidence, every person so offending shall be
deemed and taken to be guilty of perjury, and shall be prosecuted
and punished accordingly.

LXVI. And whereas great difficulties and delays may be ex-
perienced, and sometimes a failure of justice may take place, in
actions depending in Courts of law in Ireland, by reason of the
want of a competent power or authority in the said Courts to
order and enforce the examination of witnesses, when the same
may be required, before the trial of a cause : and whereas by an
Act passed in the Parliament of Great Britain in the thirteenth
is c# year of the reign of his late Majesty King George the Third, in-

tituled An act for the establishing certain Regulations for the
better Management of the affairs of the East hidia Company as
well in India as in Europe, certain powers are given and pro-
visions made for the examination of witnesses in India in the
cases therein mentioned : and whereas by an act passed in the
i w. 4. c. first year of the reign of His late Majesty King William the
'**: Fourth, intituled An act to enable Courts of Law to order the exa-

mination of witnesses upon interrogatories and otherwise, further
provisions were made in relation to the examination of wit-
nesses in all colonies, islands, plantations, and places under the
dominion of the Crown of England in Foreign parts: and
whereas it is expedient to extend to Ireland certain provisions
of the said two last-mentioned recited acts ; be it therefore
powers of enacted, that all and every the powers, authorities, provisions
-act/ 6011 ** anc ^ nmtters contained in the said recited act of the thirteenth
exumded to year of the reign of His said late Majesty King Georae the
ail actions in Third, relating to the examination of witnesses in India shall be
atDobiin, ^d tne s* 016 *&> w * tn reference to all actions in any of Her
when exa- Majesty's Courts of Law at Dublin, hereby extended to all
c^nSnteSon c ^ 011 ^ 8 * islands, plantations, and places under the dominion of
shall appear Her Majesty in foreign parts, and to the Judges of the several
necessary. courtB therein, and to all actions depending in any of Her Ma-
jesty's Courts of Law at Dublin, in what place or county soever
the cause of action may have arisen within the jurisdiction of the
court to the Judges whereof the writ or commission may be di-
rected, or elsewhere, when it shall appear that the examination
of witnesses under a writ or commission issued in pursuance of
.the authority hereby given will be necessary or conducive to the
due administration of justice in the matter wherein such writ
shall be applied for.



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Statutes relating to Procedure and General Matters. ciii

LXVIL And be it enacted, when any writ or commission Jl {^ ge8 fc V >
shall issue under the authority of the said last-mentioned act and cmnmission
of this act, or of the power hereinbefore given by this act. the is directed
Judge or Judges to whom the same shall be directed shall have ^JJJJJJJ*
the like power to compel and enforce the attendance and exami- the atten-
uation of witnesses as the Court whereof they are Judges does ?J5J?L£L
or may possess for that purpose in suits or causes depending in
such court.

LXVIII. And be it enacted, that the costs of every writ or Costs of
commission to be issued under the authority of the said last- JJ 1 ^* **
mentioned act and of this act, or of the power hereinbefore given discretion
by this act, in any action at law depending in either of the. said of the
Courts at Dublin, and of the proceedings thereon, shall be in the CourL
discretion of the court issuing the same.

LXIX. And be it enacted, that it shall be lawful to and for Courts at
each of the said courts at Dublin, and the several Judges thereof, ^^ , ° h ^ My
in every action depending in such Court, upon the application of examination '
any of the parties to such suit, to order the examination on oath, of witnesses
upon inteiTogatories or otherwise, before the Prothonotary or JJ^SoSon'

Clerk of the Fleas respectively of the said court, or other person by an officer

r. j - .. . .r. . of fc . « *



or persons to be named in such order, of any witnesses within the j* fch c | a £ ou^fc,
jurisdiction of the court where the action shall be depending, order a
or to order a commission to issue for the examination of wit- commission
nesses on oath at any place or places out of such jurisdiction, by ^^ out
interrogatories or otherwise, and by the same or any subsequent of their
order or orders to give all such directions touching the time, place, Jurisdiction,
and manner of such examination as well within the jurisdiction
of the court wherein the action shall be depending as without,
and all other matters and circumstances connected with such ex-
aminations as may appear reasonable and just.

LXX. And be it enacted, that when any rule or order shall compelling
be made for the examination of witnesses within the jurisdiction attendance .
of the court wherein the action shall be depending by authority j£ p^odSc?*'
of this act, it shall be lawful for the Court, or any Judge thereof, tion of
in and by the first rule or order to be made in the matter, or any documents.
subsequent rule or order, to command the attendance of any per-
son to be named in such rule or order for the purpose of being
examined, or the production of any writings or other documents
to be mentioned in such rule or order, and to direct the attendance
of any such person to be at his own place of abode or elsewhere,
if necessary or convenient so to do ; and the wilful disobedience ™^2a2SSS
of any such rule or order shall be deemed a contempt of Court, a contempt
and proceedings may be thereupon had by attachment (the of Court.
Judge's order being made a rule ot Court before or at the time of
the application for an attachment), if, in addition to the service
of the rule or order, an appointment of the time and place of
attendance in obedience thereto, signed by the person or persons



Online LibraryJohn Naish Edmund Thomas BewleyThe Common Law Procedure Acts, 1853, 1856, 1870: with an appendix ... → online text (page 66 of 76)