No. I. c. 42. ments of the said courts or any of them shall be carried by any writ of 3 & 4 W. 4, error, and be of the like force and effect as if the provisions contained therein had been expressly enacted by parliament: Provided always, That no such rule or order shall have the effect of depriving any person of the power of pleading the general issue, and giving the special matter in evidence, in any case wherein he is now or hereafter shall be entitled to do so by virtue of any act of parliament now or hereafter to be in force. Not to deprive any person of the power of pleading the general issue. Restriction as to plea in abatement for non-joinder of a co-defendant. Reply of plain tiff to plea in abatement of nonjoinder. Provision in ceedings against the persons named in a plea in abate ment. VIII. That no plea in abatement for the nonjoinder 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. (1) IX. That to any plea in abatement in any court of law of the nonjoinder 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. (2) X. That in all cases in which after such plea in abatement the plainthe case of sub- tiff shall, without having proceeded to trial upon an issue thereon, comsequent pro- mence another action against the defendant or defendants 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 subsequent action, or on the evidence at the trial thereof, that all the original defendants are liable, but that one or more of the 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 nonjoinder 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 in abatement. Misnomer not to be pleaded in abatement. XI. That no plea in abatement for a misnomer 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 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. (3) 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 (1) See also the Carriers' Act, 11 G. 4. & 1 W. 4. c. 68, s. 5, providing that no action commenced against a proprietor shall abate for not joining any co-partner; post, Part IV., Class 14. (2) It was formerly held, that joint contractors must all be sued, although one had become bankrupt and obtained his certificate, and, if not sued, that the others might plead in abatement; Bovill v. Wood, 2 Maule & S. 23. (3) The plaintiff declared by the name of William Moody, and the cause proceeded to issue in that name. It was sworn that the party intended as plaintiff was John Moody; but there appeared to be a William Moody, a son of John, who was connected with the transaction in question. The court refused a rule to amend the proceedings, by inserting the name of John, instead of William, observing, that if the former were really the person originally intended as plaintiff, the misnomer could not be taken advantage of at the trial; Moody v. Aslatt, 1 C. M. & R. 771: 3 Dowl. P. C. 486. No. I. 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 2 & 3 W. 4, 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. c. 42. XIII. That no wager of law shall be hereafter allowed. Wager of law to be abolished. XIV. That an action of debt on simple contract shall be maintainable Action of debt in any court of common law against any executor or administrator. on simple XXI. That it shall be lawful for the defendant in all personal actions, contract. (except actions for assault and battery, false imprisonment, libel, slander, Defendant to malicious arrest or prosecution, criminal conversation or debauching of be allowed to the plaintiff's daughter or servant,) by leave of any of the said superior pay money into courts where such action is pending, or a judge of any of the said court in certain supe- actions by rior 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 pay- judge's order. ment 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. (1) XXII. And whereas unnecessary delay and expence is sometimes Power to direct occasioned by the trial of local actions in the county where the cause of local actions to action has arisen; be it therefore enacted, That in any action depending be tried in any in any of the said superior courts, the venue in which is by law local, county. the court in which such action shall be depending, or any judge of any of the said courts, may, on the application of either party, order the issue to be tried, or writ of inquiry to be executed, in any other county or place than that in which the venue is laid; and for that purpose any such court or judge may order a suggestion to be entered on the record, that the trial may be more conveniently had, or writ of inquiry executed, in the county or place where the same is ordered to take place. (2) XXIII. And whereas great expence is often incurred, and delay or Allowing failure of justice takes place, at trials, by reason of vacancies as to some amendments to particular or particulars between the proof and the record or setting be made on the forth, on the record or document on which the trial is had, of contracts, record in cercustoms, prescriptions, names, and other matters or circumstances not tain cases. material to the merits of the case, and by the mis-statement 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 it is expedient to allow such amendments as herein-after mentioned to be made on the trial of the cause; be it therefore enacted, That it shall be lawful for any court of record, holding plea in civil actions, and any judge sitting at nisi prius, (3) 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 (1) And see 11 G. 4, & 1 W. 4, c. 68, s. 10, as to payment of money into court in actions brought against carriers, &c. post, Part IV., Class 14. (2) Notwithstanding this clause, it must be satisfactorily made out that an impartial trial cannot be had, to induce the court to interfere to change the venue in a local action; Briscoe v. Roberts, 3 Dowl. 434. (3) This section seems to extend to causes tried before the sheriff; Hill v. Salt, 2 Cr. & M. 421, 4 Tyr. 271, 2 Dowl. 380. No. I. 3 & 4 W. 4, c. 42. Power for the court or judge to direct the facts to be which the opposite party cannot have been prejudiced in the conduct of his action, prosecution, or defence, (1) 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 indorsed 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 príus, 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. (2) XXIV. That the said court or judge shall and may, if they or 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 find the fact or facts according to the evidence, and thereupon such finding shall be stated on found specially 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 mis statement 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 (3). (1) Where a general warranty of the soundness of a horse, was declared on, and it was a warranty, except in one foot," the judge amended the declaration accordingly, the real dispute between the parties being whether the horse was a roarer; Hemming v. Parry, 6 Car. & P. 580. In ejectment for a forfeiture, Parke J. allowed a mis-statement of the parish in the declaration to be amended, it not appearing that the defendant was misled; Doe d. Marriott v. Edwards, 6 Carr. & P. 208. (2) Where a judge at nisi prius refused to amend a declaration in ejectment by altering a joint demise by parties who turned out to be tenants in common into several demises, and nonsuited the plaintiff, a rule obtained for setting aside the nonsuit was discharged by the court, which appears to have intimated that the discretion of a judge at nisi prius with respect to amendments was not to be questioned in bank; Doe d. Poole v. Errington, 1 Ad. & El. 750; 3 Nev. & M. 446. (3) Where in a declaration in case for diverting water, the plaintiff entitled himself the owner of a mill, and it appeared in evidence he was entitled only as owner of lands, the judge at the trial refused to amend under the above section, but indorsed the facts upon the postea under this clause. The court refused to give judgment for the plaintiff upon such indorsement; Parkinson v. Earl of Falmouth, 4 N. & M.330. No. I. c. 42. 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 3 & 4 W. 4, of the said superior courts, 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 Power to state prosequi, immediately after the decision of the case, or otherwise as the a special case court may without prothink fit; and judgment shall be entered accordingly. ceeding to trial. PART IV. CLASS VII. SET-OFF. PART IV. CLASS VIII. LIMITATION OF ACTIONS. [Although previous to this statute to constitute a prescription the enjoyment must have existed from the reign of Richard the first. Bract. C. 2, c. 22; 1 Comm. 75; 2 Id. 263; yet in order to support rights which had been long and peaceably enjoyed, the courts interpreted an enjoyment of even twenty years as presumptive evidence that the right had existed time out of mind, and consequently that period was held a sufficient foundation for establishing a prescriptive right, unless its origin could be proved. 2 Wils. 23; Coup. 215; 10 East, 476; 2 Brod. & Bing. 403. The following act is intended to make that possession a bar or title of itself, which was so before only by the intervention of a jury. Bright v. Walker, 4 Tyr. 507; 1 Cr. M. & R. 217, S. C.] [No. I.] 2 & 3 W. IV. c. 71.-An Act for shortening the Time of Prescription in certain Cases (1). [1st August 1832.] WHEREAS the expression Time immemorial, or Time whereof the memory of man runneth not to the contrary,' is now by the law of England in many cases considered to include and denote the whole period of time from the reign of king Richard the first, whereby the title to matters that have been long enjoyed is sometimes defeated by showing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice; for remedy thereof be it enacted, Claims to right &c., That no claim which may be lawfully made at the common law, by of common and custom, prescription, or grant, to any right of common or other profit or other profits benefit to be taken and enjoyed from or upon any land of our sovereign à prendre not lord the king, his heirs or successors, or any land being parcel of the to be defeated after thirty duchy of Lancaster or of the duchy of Cornwall, or of any ecclesiastical years' enjoyor lay person, or body corporate, except such matters and things as are ment by show herein specially provided for, and except tithes, rent, and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by shewing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the full period of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing. ing the com mencement. After sixty years' enjoy ment the right to be absolute, unless had by consent or agreement. In claims of right of way II. That no claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to (1) For the act shortening the time of prescription in cases of modus decimandi; see ante, Part II. Class II. Tithes. |