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ADMINISTRATION OF JUSTICE ACT 1707
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CHAPTER X.
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An Act for the Amendment of the Law, and the better Advancement of Justice.[a]
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4 Anne 16. Eng. [4 & 5 Anne c. 3. Eng. in Revised Statutes]
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On demurrer judgment shall be given according to very right, without regarding defects (except those specially set down with demurrer as causes) tho' heretofore matter of substance, and not aided by 10 C. 1. 11. sess. 2.
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10 C. 1. 11. sess. 2. 27 Eliz. 5. Eng. Therefore no advantage to be taken of immaterial traverse, default of pledges, &c.
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FOR the amendment of the law in several particulars, and for the easier, speedier, and better advancement of justice; be it enacted by the Queen’ most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal and commons in this present Parliament assembled, and by the authority of the same, That from and after the first day of Michaelmas term, which shall be in the year of our Lord one thousand seven hundred and seven, where any demurrer shall be joyned and entred in any action or suit in any court of record within this realm, the judges shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfections, omission, or defect in any writ, return, plaint, declaration, or other pleading, process, or course of proceeding whatsoever, except those only which the party demurring shall specially and particularly set down and express, together with his demurrer, as causes of the same, notwithstanding that such imperfection, omission, or defect, might have heretofore been taken to be matter of substance, and not aided by the statute made in the tenth year of King Charles the first, intituled, An Act for expedition of justice in cases of demurrers, &c. so as sufficient matter appear in the said pleadings, upon which the court may give judgment according to the very right of the cause: and therefore from and after the said first day of Michaelmas term no advantage or exception shall be taken of or for any immaterial traverse, or of or for the default of entring pledges upon any bill or declaration, or of or for the default of alledging the bringing into court any bond, bill, indenture, or other deed whatsoever, mentioned in the declaration or other pleadings; or of or for the default of alledging of the bringing into court letters testamentory, or letters of administration, or of or for the omission of vi & armis, & contra pacem, or either of them; or of or for the want of averment of hoc paratus est verificare, or hoc paratus est verificare per recordum; or of or for not alledging prout pater per recordum; but the court shall give judgment according to the very right of the cause as aforesaid, without regarding any such imperfections, omissions, and defects, or any other matter of the like nature, except the same shall be specially and particularly set down, and shewn for cause of demurrer.
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All statutes of jeofails extended to judgment on confession, nil dicet, &c. and 19 G. 2. 12 to mandamus or quo warranto on that act.
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II. And be it further enacted by the authority aforesaid, That from and after the said first day of Michaelmas term all the statutes of jeofailes shall be extended to judgments, which shall at any time afterwards be entred upon confession, nihil dicit, or non sum informatus, in any court of record; and no such judgment shall be reversed, nor any judgment, upon any writ of enquiry of damages executed thereon, be stayed or reversed for or by reason of any imperfection, omission, defect, matter, or thing whatsoever, which would have been aided or cured by any of the said statutes of jeofailes, in case a verdict of twelve men had been given in the said action or suit, so as there be an original writ, bill, or declaration, and warrants of attorney duly filed according to the law as is now used.
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Plaintiffs attorney to file his warrant same term he declares.
Defendants the same term he appears.
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III. Provided always, and be it enacted by the authority aforesaid, That the attorney for the plaintiff or demandant in any action or suit shall file his warrant of attorney with the proper officer of the court, where the cause is depending, the same term he declares, and the attorney for the defendant or tenant shall file his warrant of attorney as aforesaid the same term he appears, under the penalties inflicted on attorneys by any former law for default of filing their warrants of attorney.
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Defendant, or plaintiff in replevin, may with leave plead several matters.
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IV. And be it further enacted by the authority aforesaid, That from and after the said first day of Michaelmas term, it shall and may be lawful for any defendant or tenant in any action or suit, or for any plaintiff in replevin, in any court of record, with the leave of the same court, to plead as many several matters thereto, as he shall think necessary for his defence.
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Costs, if demurrer insufficient.
So if verdict for plaintiff unless judge certifies probable cause.
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V. Provided nevertheless, That if any such matter shall upon a demurrer joyned be judged insufficient, costs shall be given at the discretion of the court, or if a verdict shall be found upon any issue in the said cause for the plaintiff or demandant, costs shall be also given in like manner, unless the judge, who tryed the said issue, shall certifie that the said defendant or tenant, or plaintiff in replevin, had a probable cause (a
) to plead such matter, upon which the said issue shall be found against him.
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This act not to extend to appeal of felony or murder, indictment or presentment, or prosecution on penal statute.
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VII. Provided always, and be it further enacted by the authority aforesaid, That nothing in this act before contained shall extend to any writ, declaration, or suit of appeal of felony or murther, or to any indictment or presentment of treason, felony, or murther, or other matter, or to any process upon any of them, or to any writ, bill, declaration, action, or information upon any penal statute.
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Conveyances good without attornment.
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IX. And be it further enacted by the authority aforesaid, That from and after the said first day of Michaelmas term, all grants or conveyances thereafter to be made by fine or otherwise, of any mannors, or rents, or of the reversion or remainder of any messuages or lands, shall be good and effectual to all intents and purposes, without any attornment of the tenants of any such manors, or of the land, out of which the rent shall be issuing, or of the particular tenants, upon whose particular estates any such reversion or remainder shall or may be expectant or depending, as if their attornment had been had and made.
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But tenant not prejudiced by payment of rent, or breach before notice by grantee.
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X. Provided nevertheless, That no such tenant shall be prejudiced or damaged by payment of any rent to any such grantor or conusor, or by breach of any condition for non-payment of rent, before notice shall be given to him of such grant by the conusee or grantee.
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No dilatory [plan] received, unless on affidavit or probable matter shewn.
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XI. And be it further enacted by the authority aforesaid, That from and after the said first day of Michaelmas term, no dilatory plea shall be received in any court of record, unless the party offering such plea do by affidavit prove the truth thereof, or shew some probable matter to the court, to induce them to believe that the fact of such dilatory plea is true.
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In debt, or scire facias on judgment payment may be pleaded in bar.
So in debt on bond with condition or defeasance: tho' the payment not made strictly according thereto.
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XII. And be it further enacted by the authority aforesaid, That from and after the said first day of Michaelmas term, where any action of debt shall be brought upon any single bill, or where any action of debt or scire facias shall be brought upon judgment, if the defendant hath paid the money due upon such bill or judgment, such payment shall and may be pleaded in bar of any such action or suit; and where an action of debt is brought upon any bond, which hath a condition or defeazance to make void the same upon payment of a lesser sum at a day or place certain, if the obligor, his heirs, executors, or administrators, have before the action brought paid to the obligee, his executors or administrators, the principal and interest due by the defeazance or condition of such bond, though such payment was not made strictly according to the condition or defeazance, yet it shall and may nevertheless be pleaded in bar of such action, and shall be as effectual bar thereof, as if the money had been paid at the day and place according to the condition or defeazance, and had been so pleaded.
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Pending action on bond with penalty, defendant bringing into court principal, interests and costs, discharged.
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XIII. And be it further enacted by the authority aforesaid, That if at any time pending an action upon any such bond with a penalty the defendant shall bring into the court, where the action shall be depending, all the principal money and interest due on such bond, and also all such costs as have been expended in any suit or suits in law or equity upon such bond, the said money, so brought in, shall be deemed and taken to be in full satisfaction and discharge of the said bond; and the court shall and may give judgment to discharge every such defendant of and from the same accordingly.
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Persons against whom cause of action, trespass, &c. beyond sea at the time, it may be brought after return, if within the times limited by 10. C. 1. 6. sess. 2.
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XVII. And be it further enacted by the authority aforesaid, That if any person or persons, against whom there shall be any cause of action of trespass, detinue, trover or replevin, for taking away goods or chattels, or of action of account, or upon the case, or of debt, grounded upon any lending or contract without specialty, of debt for arrearages of rent, or assault, menace, battery, wounding, and imprisonment, or any of them, be or shall be at the time of any such cause of suit or action given or accrewed, fallen, or come, beyond the seas, that then such person or persons, who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person and persons after their return from beyond the seas, so as they take the same after their return from beyond the seas within such times, as are respectively limitted for the bringing of the said actions by the last mentioned act. (a)
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Bail-bond, or other security taken on arrest at suit of common person, assignable to the plaintiff by indorsement in presence of two witnesses,
if forfeited, plaintiff may sue in his own name.
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XVIII. And be it further enacted by the authority aforesaid, That if any person or persons shall be arrested from and after the said first day of Michaelmas term by any writ, bill, or process, issuing out of any of her Majesty's Four courts at Dublin at the suit of any common person, and the sheriff or other officer taketh bail from such person, against whom such writ, bill, or process is taken out, the sheriff or other officer, at the request and cost of the plaintiff in such action or suit, or his lawful attorney, shall assign to the plaintiff in such action the bail-bond, or other security taken from such bail, by indorsing the same, and attesting it under his hand and seal in the presence of two or more credible witnesses; and if the said bail-bond or assignment, or other security taken for bail, be forfeited, the plaintiff in such action, after such assignment made, may bring an action and suit thereupon in his own name; and the court, where the action is brought, may by rule or rules of the same court give such relief to the plaintiff and defendant in the original action, and to the bail upon the said bond or other security taken from such bail, as is agreeable to justice and reason; and that such rule or rules of the said court shall have the nature and effect of a defeazance to such bail bond, or other security for bail.
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Warranties by tenant for life, void as to him in reversion or remainder, and collateral warranties by ancestor having no estate of inheritance in possession, void as to his heir.
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XIX. And be it further enacted by the authority aforesaid, That all warranties, which shall be made after the first day of Michaelmas term by any tenant for life of any lands, tenements, or hereditaments, the same descending or coming to any person in reversion or remainder, shall be void, and of none effect; and likewise all collateral warranties, which shall be made after the said first day of Michaelmas term, of any lands, tenements, or hereditaments, by any ancestor who has no estate of inheritance in possession in the same, shall be void against his heir.
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No process out of equity till after bill filed and certificate thereof, except for injunctions to quiet possession, stay waste, or suit at law.
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XX. And be it further enacted by the authority aforesaid, That no subpœna, or any other process for appearance, do issue out of any court of equity till after the bill is filed with the proper officer in the respective courts of equity, except in cases of bills for injunctions to quiet possessions, to stay wasts, or stay suits at law commenced, and a certificate thereof brought to the proper officer, who usually makes out subpœna’s or other process in the several courts of equity, under the hand of the officer respectively for each respective court, who usually files bills in equity, for which certificate he shall receive no fee.
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This, and all statutes of jeofail, to extend to suits in the Four Courts for debt or revenue of the Queen, and all courts of record.
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XXI. And be it further enacted by the authority aforesaid, That from and after the said first day of Michaelmas term, this act, and all the statutes of jeofailes, shall extend to all suits, in any of her Majesty's Four courts at Dublin for recovery of any debt immediately owing, or any revenue belonging, to her Majesty, her heirs or successors, and shall also extend to all courts of record in the county palatine of Tipperary, [Rep., Stat. Law Rev. (I.) Act, 1878] and to all other courts of record within this kingdom.
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On quashing writ of error, defendant to recover costs, as if judgment affirmed.
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XXII. And for preventing great vexation from suing out defective writs of error; be it enacted by the authority aforesaid, That upon the quashing any writ of error, to be sued out after the said first day of Michaelmas term, for variance from the original record, or other defect, the defendants in such error shall recover against the plaintiff or plaintiffs issuing out such writs, his costs, as he should have had if the judgment had been affirmed, and to be recovered in the same manner.
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Account may be against executors, &c. of guardian, bailiff or receiver, and by one joint tenant, &c.
Auditors may administer oath, and examine and have allowance by the court from the party on whose side balance is.
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XXIII. And be it further enacted by the authority aforesaid, That from and after the said first day of Michaelmas term, actions of account shall and may be brought and maintained against the executors and administrators of every guardian, bailiff, and receiver, and also by one joint tenant and tenant in common, his executors and administrators, against the other as bailiff, for receiving more than comes to his just share and proportion, and against the executors and administrators of such joint tenant or tenant in common; and the auditors, appointed by the court where such action shall be depending, shall be and are hereby impowered to administer an oath, and to examine the parties touching the matters in question; and for their pains and trouble in auditing and taking such account, have such allowance as the court shall adjudge to be reasonable, to be paid by the party, on whose side the ballance of the account shall appear to be.
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[a Sections 1, 2, 3, 4, 17, and 23 of this Act are repealed by 16 & 17 Vict. c. 113. s. 3, so far as relates to personal actions and to actions of ejectment in the superior courts in Ireland.]
[(a) “Profitable cause” in authorised edition.]
[(a) The reference is to 10 Cha. 1. Sess. 2. c. 6. (Ir.)] |
