Page images
PDF
EPUB

some

Actions of trespass to the person or goods—within 4 years.
Actions of libelwithin 6 years.

Actions of debt or covenant founded on deeds or recognizances—within 20 years.

Actions on penal statutes, when given to the party grieved --within 2 years; and when given to a common informerwithin 1 year.

But in each case if the person entitled to bring the action be an infant, or lunatic, the time is reckoned from the date on which these disabilities were removed ; and, if the defendant. is beyond seas, the time does not begin to run till his return.

But, with regard to money secured by mortgage, judgment or lien, or otherwise payable out of real estate, payment of part of the principal money, or some interest thereon, or acknowledgment of the right thereto made in writing signed by the person liable to pay the same, or his agent, and given to the person entitled thereto or his agent, before the expiry of the term of twenty years, during which the aforesaid money may be recovered, will, as it is said, "take the case out of the statute ;” and the lender may bring an action or suit to recover such money at any time within a further period of twenty years from the date of such payment or acknowledgment. Similarly an acknowledgment of, or promise to pay, a simple contract debt, if made in writing signed by the party chargeablethereby or his agent, will take the case out of the statute, and the lender may bring his action at any time within six years of such acknowledgment, etc.

Though the Statutes take away the plaintiff's remedy after the expiration of a certain time, they do not destroy his right, and therefore it may be revived.

[ocr errors]

DEATH OF EITHER PARTY TO AN ACTION.

Formerly the death of either plaintiff or defendant put an end to the action of tort, but now, by Statute, an action is: given to the executors or administrators of a deceased person for any injury to his real estate, committed within six calendar months before his death, and for which he might have maintained an action-provided the action is brought within one year after the death of such person; and by an early Statute a similar action is given to the executor in case of injury doneto the personal estate of the deceased in his lifetime. And an action may now be maintained against the executors or administrators of any deceased person for any wrong committed by him within six calendar months before his death against another person, in respect of his property, real or personalprovided such action be brought within six months: after such executors or administrators shall have taken upon themselves the administration of his estate and effects.

a

PROCEEDINGS IN A DEFENDED ACTION IN THE

SUPREME COURT. 1. The plaintiff issues a writ of summons, stating shortly

the nature of the action (debt or damages), and commanding the defendant, within certain number of days (varying according to the circumstances), to cause an appearance to be entered; or in default the plaintiff may proceed to judgment

and execution. 2. The defendant enters an appearance within the time

limited; and he may do this in person if he chooses. 3. The pleading then begins by the plaintiff delivering

the declarationi.e., a short written statement of the cause of action, which concludes by stating the

amount claimed. 4. Defendant delivers a written plea, or answer to the

declaration. 5. Plaintiff then delivers his replication, which, thought

it may contain an answer to the plea, is often a mere “joinder of issue”-i.e., a statement to the effect that the plaintiff is willing to submit the matter at its present stage to the finding of the

jury. 6. A copy of the declaration and other pleadings is then

made and typewritten on foolscap paper, which is called the issues. This document is then filed in the office of the Supreme Court by the plaintiff, who also sets the case down for trial, and notifies.

the defendant. But the pleadings may be continued beyond the replication by rejoinder, surrejoinder, rebutter, etc.; and they may be interrupted by demurrer, which is a written statement to the effect that the declaration, plea, etc., is “bad in substance” -i.e., shows no cause of action, ground of defence, etc.

The remainder of this section relates chiefly to the practice in actions in the Supreme Court.

WRIT OF SUMMONS.

Where the plaintiff acts for himself, the writ must be indorsed with a memorandum to the effect that the same has been sued out by the plaintiff in person, and giving his address. An indorsement of the amount of debt must also be made, but not where damages alone, or debt and damages, is claimed. And upon every writ sued out for payment of any debt, and

upon every copy of same, the following matters must be indorsed

(1) The amount of the debt.
(2) The amount the plaintiff's attorney (if any) claims

for costs.
(3) A statement to the effect that upon payment of the

debt and costs to the plaintiff or his attorney, within the time limited for plaintiff's appearance,

further proceedings will be stayed. A writ of summons should be served personally, if possible; but, where defendant evades service, it may be effected by leaving a true copy of the writ at his usual place of abode with some person resident there; the mode of effecting personal service is to deliver a copy of the writ to the defendant, and at the same time to produce the original. Further, the person serving the writ must, within three days after service, indorse on the writ the day of the month and week of such service; otherwise the plaintiff cannot sign judgment in case of non-appearance of the defendant.

If the plaintiff refuses the amount offered after the service of the writ, and elects to proceed, and recovers no more, he will have to pay defendant's subsequent costs. No form or cause of action need be stated in the writ of summons, but the plaintiff must have some ground of action known to the law.

SPECIALLY INDORSED WRIT. When the defendant resides within the jurisdiction of the Court, and the claim is for a debt or liquidated demand in money arising on a contract, express or implied, as on promisBory notes, cheques, sales of goods, bonds, guarantees, etc., the plaintiff may indorse upon the writ of summons and copy a "special indorsement” of his claim—i.e., full particulars thereof.

He may then, if the defendant does not enter an appearance within the time limited, file an affidavit of service and copy of the writ, and sign judgment for the sum indorsed, interest (if any) and costs as fixed by the rules of Court.

In the case of writs indorsed as abovementioned, and where the defendant is resident not more than 100 miles from Sydney, the time for appearance is 5 days. But the defendant may, before or after judgment, be let in to defend, upon filing an affidavit explaining his neglect to enter an appearance and showing a good defence upon the merits.

DEBTORS BEYOND THE JURISDICTION.

In such cases the Common Law Procedure Act of 1899 provides a means whereby the plaintiff may resort to any

property which the defendant possesses within the jurisdiction or out of it. In the first case, the manner of proceeding is by "writ of foreign attachment”; and, in the second, by issue of a writ for service out of the jurisdiction, whereby a judgment of the Court is obtained, which is finally executed, in other States or elsewhere, by means of a “memorial of judgment,” registered in the Supreme Court of such other State, etc.

The time for appearance is regulated by the distance from New South Wales of the place where the defendant is residing; service may be personal, or, on proof of certain facts, will be dispensed with.

INJUNCTION AT COMMON LAW. An injunction was formerly a purely equitable remedy; but, in

this remedy was accredited also, in certain cases, to the Common Law Courts, and now, by the abovementioned Statute, wherever a breach of contract or other injury exists, and the party injured is entitled to maintain, and has brought, an action, he may claim a writ of injunction against the repetition or continuance of such breach or injury; or the committal of any similar breach, etc., arising out of the same contract or relative to the same property or right; and in the same action a claim for damages or other redress may be included. The mode is to indorse notice of intention to claim a writ of injunction on the writ of summons and copies, and to claim the injunction in the declaration.

APPEALS TO THE FULL COURT. After the action has been tried in the ordinary manner before a judge and jury, and a verdict given, the plaintiff or defendant, as the case may be, is at liberty to appeal to the Full Court in any of the following modes, viz. : By motion for a new trial, trial de novo; judgment notwithstanding the verdict; non-suit on point reserved; or an arrest of judgment. Some of the above may be moved for by the plaintiff; some by the defendant only, others are open to either. As to new trial, which is the commonest form of appeal, and for which either plaintiff or defendant may move, a motion for same may be made whenever there are reasonable grounds for -supposing that the verdict at the first trial was erroneous.

The usual grounds are: Misdirection of the jury by the judge; improper reception or rejection of evidence; verdict against evidence or weight of evidence; verdict on evidence insufficient in law; misconduct of the jury; or excessive damages.

In any case, the practice is to file a memorandum of intention, which must contain the date of the first trial, the verdict, and the intended motion and grounds; and then a

rule nisi for a new trial, etc., is generally granted, which is made absolute at a later date.

The time during which to move for a new trial, etc., is, in ordinary cases, within 8, or in circuit cases within 14 days after verdict.

EXECUTION AFTER FINAL JUDGMENT OF THE

SUPREME COURT.

Final judgment occurs :—
(a) In actions for liquidated demands (such as debts,

etc.), whether by default or not.
(6) In every action, after verdict and assessment of

damages. Final judgment by default may occur :(a) In cases where the writ may be, and has been,

specially indorsed, when the defendant fails to enter

an appearance in due time. (3) In cases where the writ might have been, but is not,

so indorsed, and the defendant fails to enter a

plea. The practice in obtaining execution after verdict is to prepare an inciptur or short account of the judgment, and upon this judgment may be signed, costs taxed,' and execution issued.

An execution is carried out by writ of fieri facias (generally termed a fi. fa.), which is an authority to the Sheriff to sell the land and goods of the defendant; a præcipe for the above writ and the writ itself are prepared, and the latter, after being stamped with the seal of the Court, is lodged with the Sheriff for execution.

It must be noted, however, that where a judgment by default is not final, but interlocutory only (as where the claim is not for a debt or liquidated demand), then before final judgment can be signed, the amount of damages must be assessed by the Prothonotary, or before a jury upon a writ of inquiry; but, where the judgment by default is final, an affidavit of debt takes the place of such assessment or inquiry.

COSTS OF ACTIONS IN THE SUPREME COURT.

Generally speaking, the plaintiff, being successful in any action, will be entitled to his costs.

But where a sum not exceeding £30 is recovered in the Supreme Court, the plaintiff gets no costs, except where a judge of the said Court certifies that the action could not have been tried in the District Court without the defendant's consent; or that there was sufficient reason for bringing the

« PreviousContinue »