Civil Bill Courts Procedure Amendment Act (Ireland) 1864

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CIVIL BILL COURTS PROCEDURE AMENDMENT ACT (IRELAND) 1864

CHAPTER XCIX.

An Act to amend the Procedure of the Civil Bill Courts in Ireland. [29th July 1864.]

[Preamble.]

[S. 1 rep. 56 & 57 Vict. c. 14. (S.L.R.)]

Short title.

2. This Act may be cited for all purposes as “The Civil Bill Courts Procedure Amendment Act (Ireland), 1864.”

Interpretation of terms.

3. In the construction of this Act the following words and expressions shall have the force and meaning hereby assigned to them, unless there be something in the subject or context repugnant thereto :

The word “person” or “party” shall extend to and include any body politic, corporate, or collegiate, whether aggregate or sole, and any public company :

The word “lands” shall include houses, messuages, and tenements, and premises, whether corporeal or incorporeal; and the word “premises” shall include lands, houses, and tenements, corporeal or incorporeal :

The word “county” shall extend to and include a county of a city, a county of a town, a town, a city, a borough, and a riding of a county :

The word “decree” shall include a dismiss, or any renewal of a decree or dismiss, or any order of the civil bill courts for the payment of money, or any warrant, or any “order” for, or “writ of restitution,” issuing out of or awarded by such courts :

The word “defendant” shall mean also the person or party whose goods, or chattels may be liable to be taken under any decree, dismiss, renewal, or order of the civil bill courts :

The word “bailiff” shall mean any bailiff duly appointed by the sheriff under and in pursuance of this Act, and shall include any person assisting the sheriff, under sheriff, or such bailiff, with the authority and in the presence of such sheriff, under sheriff, or bailiff, in the execution of any decree, dismiss, renewal, order, writ, or warrant of the civil bill courts :

The expression “civil bill court” shall mean the court for the hearing of civil bill causes held in the several counties of Ireland :

The expressions “chairman of the court of quarter sessions,” “chairman of the county,” and “chairman” shall include the judge of the court for hearing civil bill causes for such county,

The expression “clerk of the peace” shall include the acting or deputy clerk of the peace, registrar, or other officer of the county or recorders courts, lawfully discharging the duties of a clerk of the peace, either in a county, county of a city, or county of a town :

The word “sheriff” shall include the “under sheriff”; and in borough civil bill courts, where an officer of such courts, and not the sheriff, has now by law the execution of the decrees of such courts, shall include and mean such officer :

The expression “process of the court” shall include any decree, dismiss, renewal, order, or writ, or other proceeding of the civil bill courts :

The word “plaintiff” shall include, in addition to the plaintiff in any decree, such person as may by any decree, order, or writ of the civil bill court be entitled to receive the possession of any land, chattel, or money.

Decrees of the civil bill courts to be executed by the sheriffs and their bailiffs.

Sheriffs entitled to fees.

Sheriffs to be responsible, as in the execution of decrees of the Superior Courts.

Appointment of special bailiff when sheriff is party.

4. All decrees of the civil bill courts hereafter to be signed by the chairman of the several counties of Ireland, shall be executed by the sheriffs of the several counties, counties of cities and of towns respectively, or by their bailiffs appointed under this Act, and by no other persons; and the said sheriffs shall be entitled to receive all fees, and sums of money allowed by this Act in the name of fees, payable to the sheriffs, out of which they shall provide for the execution of the duties for which such fees are allowed, and for the payment of the bailiffs appointed to assist them under this Act; and every such sheriff shall, save as herein-after otherwise specially provided, be responsible for his own acts and defaults, and for the acts and defaults of his bailiffs in the execution of the duties imposed on him by this Act, as the sheriff of any county in Ireland is responsible for his acts and defaults, and for the acts and defaults of his officers in the execution of any writ or process out of the Superior Courts in Ireland: Provided, that whenever the sheriff shall be a party in any proceeding by civil bill, and that any decree shall be made therein against him, the chairman shall appoint a special bailiff to execute such decree, and the precept of the clerk of the peace shall be directed to such special bailiff, who shall be entitled to receive the bailiff 's fees for executing the same.

Sheriffs to appoint, suspend, and dismiss bailiffs.

5. The sheriff of each county, county of a city, and county of a town in Ireland shall from time to time as occasion shall require, appoint, by writing under his hand, a sufficient number of persons resident within the county, and one at least of whom shall be resident within each quarter sessions district thereof, to be bailiffs to assist the said sheriff in the execution of the duties imposed on him by this Act; and it shall be lawful for the sheriff, at his pleasure, to dismiss all or any of such bailiffs, and appoint others or additional bailiffs as he shall see fit: Provided, that the appointment of such bailiffs shall not be vacated by the death or removal from office of the sheriff, but the acts of such bailiffs done after the death or removal of the sheriff until the appointment of the succeeding sheriff shall be as valid as if such sheriff had not died or been removed: Provided always, that no action or other proceeding shall be taken against any sheriff for any act, neglect, or omission in respect of the provisions of this Act after the expiration of six calendar months from the day on which the succeeding sheriff shall be sworn into office.

Chairman may fine bailiffs for neglect or misconduct.

6. The chairman shall have power to fine any of the bailiffs appointed to execute civil bill decrees for neglect or misconduct in a sum not exceeding five pounds, to be levied by distress on the goods and chattels of such bailiffs.

Names of bailiffs to be published.

7. The name and the place of abode of every bailiff to be so appointed from time to time by the sheriff, and of every bailiff who may be so dismissed or suspended as aforesaid, shall be published immediately after the date of such appointment, suspension, or dismissal, in some one or more newspaper or newspapers published or circulated within the county, and shall be returned to the office of the clerk of the peace of such county, and shall be otherwise promulgated by the sheriff in such manner as to the chairman of the county shall seem expedient; and a list of the bailiffs for the time being shall be at all times posted and kept open for public inspection in the office of the under sheriff, and in every quarter sessions court house and in every petty sessions room in the county.

Particulars of fees, &c. to be printed on decrees.

8. On every civil bill decree there shall be printed, either at the foot or on the back thereof, a true copy of the fees payable to the sheriff for executing decrees, and to the keepers for the charge of the goods seized, as specified in Part II. of schedule (B.) to this Act annexed, and also a copy of the [¹seventeenth] section of this Act.

Certiorari to remove judgment of civil bill court for sum exceeding 20l.

9. If a judge of a Superior Court shall be satisfied that a party against whom judgment for an amount exceeding twenty pounds, exclusive of costs, has been obtained in a civil bill court has no goods or chattels which can be conveniently taken to satisfy such judgment, he may, if he shall think fit, and on such terms as to costs as he may direct, order a writ of certiorari to issue to remove the judgment of the civil bill court into one of the Superior Courts; and when removed it shall have the same force and effect, and the same proceedings may be had thereon, as in the case of a judgment of such Superior Court, but no action shall be brought upon such judgment.

Form of warrant for execution of decree.

10. The warrant to be added to all civil bill decrees shall, instead of the form to a special bailiff of the plaintiff's nomination as heretofore used, be in the form following, or as near thereto as may be :

bailiffs, or either of them, and their assistants, to execute the above decree.

“Given under my hand and seal, this      day of      , 186   .

“L.M., sheriff of the said county.

“The sum to be levied hereunder is £.

“L.M., sheriff.”

And such warrants shall not be addressed to any other persons than the bailiffs to be appointed by the sheriffs in pursuance of this Act: Provided, that such warrant, if duly signed by the then sheriff, shall, whilst such decree shall remain in force, be a sufficient authority for the execution of the same, not withstanding that such sheriff may have died or been removed from office, and that such warrant shall not have been signed by his successor; but no such warrant shall be in force after the dismissal or suspension of the bailiff to whom same is directed, but such dismissal or suspension shall be a revocation of such warrant.

Fees to be taken by sheriffs.

11. There shall be payable to the sheriffs of the several counties, counties of cities and of towns, for the performance of the duties imposed on them by this Act, the fees specified in respect of such duties in the schedule (B.) to this Act annexed, and no other fees; and a table of such fees shall be placed and maintained in some conspicuous place in every court-house where civil bill causes shall be heard, and in the offices of the under sheriffs and of the clerks of the peace of the several counties; and the grand jury of every county are hereby required, at any assizes to be held in and for such county, without previous application to presentment sessions, to present the reasonable and actual expenses of preparing, exposing, and maintaining such table of fees to be raised off such county, and to be paid to the clerk of the peace.

Party demanding execution to lodge certificate of sum due at office of under sheriff.

12. No sheriff shall, for executing any decree, demand or receive fees on any larger sum than shall be certified in writing to be justly due thereon by the party on whose behalf such execution shall be demanded, or his attorney, known agent, or receiver; and the party demanding such execution shall, when he shall so demand the same, lodge with the sheriff, either by delivering the same at the office of the under sheriff in the town in which such office shall be kept, to the sheriff, under sheriff, or clerk in charge of such office, or by sending the same through the General Post Office in a letter duly registered according to the regulations of the Post Office, and addressed to the sheriff at the office of such under sheriff, a certificate under his hand, or under the hand of his attorney or known agent or receiver, stating the sum then claimed to be due on foot of such decree, after all equitable deductions; which certificate shall be filed in the office of the said under sheriff, and the sum therein stated shall be entered in the “decree and order book” herein-after mentioned, and also at the foot of the decree when delivered for execution, for which the fee of sixpence shall be paid to the sheriff by the party demanding such execution.

Sheriff to levy only for sum entered at foot of decree, with fees.

Remedy by action for neglect to deliver certificate, or overcharge in certificate.

13. No sheriff shall levy for any greater sum than shall be entered at the foot of the decree, together with the poundage fees on the sum so entered, or on such portion thereof as shall be actually levied, with the keeper's fees, according to the scale specified in Part II. of schedule (B.) to this Act annexed; and no decree shall be executed at the foot of which such entry shall not have been made as aforesaid; and if the party at whose suit such execution shall be demanded, or his attorney, agent, or receiver, shall neglect or omit to deliver such certificate as aforesaid, or shall appear to have wilfully and maliciously overcharged in such certificate the party against whom such execution shall issue, the party at whose suit such execution shall be demanded shall be liable to an action for damages at the suit of the party aggrieved.

Sheriff entitled to poundage fees on a levy upon the goods of a party.

14. Upon every levy under a decree by execution against the goods of a party, the sheriff shall and may, after such execution executed, demand and take therefor the poundage fees mentioned in that behalf in Part II. of schedule (B.) to this Act annexed on the sum stated to be due by the entry at foot of such decree, if levied, and in addition thereto, or if the goods taken shall not amount in value to the sum stated in such entry, then on so much only as he shall levy, and which in such case he shall be entitled to retain out of the sum levied by him, paying the balance to the party demanding such execution.

Fee to sheriff from party demanding execution against the body of a party.

Return of fee if warrant not executed in two months.

15. Upon every warrant for execution under a decree against the body of a party there shall be payable to the sheriff the fee specified in that behalf in Part II. of schedule (B.) to this Act annexed, to be paid by the party by whom such execution shall be demanded on or before the delivery of the decree to the sheriff for execution, and in default of such payment the sheriff may refuse to execute the same; and such fee shall not be chargeable against the party against whom such execution shall be issued: Provided, that if the party against whom such warrant shall be issued shall not be arrested within two months from the delivery of such decree to the sheriff, such fee shall be returned by the sheriff to the person by whom the same shall have been paid.

Decree to be executed within two months; and if not executed, to be returned on demand, with a statement of the reasons for its non-execution.

16. The sheriff shall, unless where otherwise directed in writing by the party delivering the same, execute every decree delivered to him as aforesaid, and pay over the proceeds thereof to the party on whose behalf execution shall be demanded, or his attorney thereto lawfully authorized, with all expedition, and at the latest within two calendar months after the said decree shall be delivered to him for execution; and if the sheriff shall within the said period of two months be unable, from sufficient legal causes, to execute the said decree, he shall, at the expiration of the said period, if required so to do by the party who shall have delivered the same to him for execution, or his attorney thereto lawfully authorized, return the decree to such party or to his attorney, and state in writing on the back thereof the cause of the non-execution of such decree, by which statement the sheriff shall be bound in any proceeding taken against him for neglect of duty: Provided, that if the sheriff shall execute any decree before the expiration of the said period of two months, nothing herein contained shall authorize him to retain the proceeds so levied until the expiration of such period; and provided further, that nothing herein contained shall prevent the sheriff from executing any decree after the expiration of two months from its delivery to him for execution so long as the said decree shall be in force.

Penalty on sheriff, bailiff, &c. receiving other than the fees allowed.

17. Any sheriff or under sheriff, or any bailiff empowered to execute a decree, or any assistant of such sheriff, under sheriff, or bailiff, or any keeper, who shall demand or receive from any person, on or in respect of the execution of such decree, any money or gratuity other than the poundage fees legally payable on the execution thereof as in this Act mentioned, and the keeper's fees, in case of a seizure of goods thereunder, as specified in Part II. of schedule (B.) to this Act annexed, or who shall knowingly permit or suffer any one on his behalf to receive the same, shall be liable to pay a sum not exceeding twenty pounds to any person who may sue for the same by civil bill.

Bailiff extorting, guilty of a misdemeanor.

18. If any bailiff, or any person assisting such bailiff, acting under a decree of a civil bill court, or under colour of the process of such court, shall extort any money, security for money, chattel, or other thing, such person so offending shall be guilty of a misdemeanor, punishable by a fine not exceeding twenty pounds, or by imprisonment not exceeding twelve calendar months, with or without hard labour, or by both fine and imprisonment; and in any indictment for such offences it shall only be necessary to aver that the party charged with the offence was a bailiff of the civil bill court of the particular county, or a person assisting such bailiff, and that under or under colour of the process of such civil bill court he did extort money, or a security for money, or some chattel, as the case may be.

Decrees for possession of land.

19. All decrees for the possession of land, and all orders made by any judge of assize upon appeal from any decree relating to the possession of land, and under which the possession of land may be given or taken, shall be executed by the sheriff of the county in which the said lands or any part of them are situated, or by his bailiffs, and by no other person; and the sheriff shall himself or by his bailiffs execute such decrees and orders within one calendar month after the same shall have been delivered to him for execution, unless otherwise directed by the party delivering the same; and such decree or order shall justify the sheriff or his bailiffs in entering upon the premises named therein, with such assistants as he or they shall deem necessary, and in taking and giving possession thereof accordingly; and in every decree for the possession of land the sheriff shall be commanded to put the plaintiff into the possession of the same; and the warrant to be annexed to every such decree shall be in the form following, or as near thereto as may be :

either of them, and their assistants, to execute the above decree.

“Given under my hand and seal, this            day of 18      .

“(Seal.)                        L.M., sheriff of said county.”

Provided always, that no entry shall be made upon any premises under any decree or order for the purpose of taking possession thereof except between the hours of nine in the morning and three in the afternoon, and no such entry shall be made on a Sunday, Good Friday, or Christmas Day; and whenever the sheriff shall be a party to any ejectment by civil bill, the decree for possession in such proceeding shall not be executed by the sheriff, but such decree or order as herein-before mentioned shall be directed to a special bailiff, to be named by the chairman of the county, who shall be commanded to execute the same, and no other person shall execute the same; and such special bailiff shall have all the powers and authority hereby conferred on the sheriff for giving or taking possession under any decree, or any such order of a judge of assize on appeal.

Under sheriff to keep “ejectment book” and “decree and order book.”

Order of execution of several decrees against one person.

Endorsement of reasons for non-execution on decrees for ejectment not executed.

Production of books to chairman and clerk of the peace.

20. The under sheriff of each county shall enter in a book to be kept by him for that purpose, to be called the “ejectment book,” the several decrees in ejectment which shall be delivered to the sheriff for execution, specifying the names of the parties therein, the names of the lands and the barony in which the same are situated, the date of the decree, and the date at which the same was delivered to him for execution, and in cases for the nonpayment of rent the sum ascertained by such decree as due for rent, and shall state in the said book the time when such decree shall have been executed, or, if not executed, the cause of the non-execution thereof; and the under sheriff shall also keep a book, to be called the “decree and order book,” in which he shall enter the several decrees, other than those last mentioned, given to the sheriff for execution, specifying the names of the parties therein, the sums due on foot thereof, as stated by the person delivering the same, and the precise time and hour at which such decrees were delivered to him for execution, such time and hour of delivery to be in all cases endorsed by him on the said decrees, and shall enter in the said book the time at which the said decrees were executed, and the sum (if any) and poundage fees levied or received thereunder, and if such decrees shall not have been executed, the cause of the non-execution thereof; and when more than one decree shall be given to him for execution against the same person, the sheriff shall execute such decrees in the order of time in which the same shall have been respectively delivered to him; and whenever the sheriff shall not execute any such decree in ejectment, he shall endorse on such decree the reason why the same was not so executed, and shall, at the request of the plaintiff or such other person as may be entitled to demand the same from him, deliver back such decree to the plaintiff or such other person, when required by him so to do; and the under sheriff shall produce the said books for the inspection of the chairman of the county, or of the clerk of peace, whenever he shall be required by the said chairman or by the clerk of the peace, after reasonable notice, so to do.

Certified copies of entries in books.

21. On any civil bill decree being lodged for execution, the person receiving the same for the sheriff shall give to the person lodging the same a certified copy of the entry made by him in his “ejectment book” or “decree and order book.”

Unexecuted decrees to be executed by succeeding sheriff.

22. The sheriff of every county, county of a city, or county of a town shall within one week after the expiration of his term of office deliver to the succeeding sheriff a correct list under his hand of all decrees and other processes in his possession not wholly executed by him, with all such particulars as shall be necessary to explain to the succeeding sheriff the several matters intended to be transferred to him, and shall thereupon transfer to the succeeding sheriff all such decrees and processes, and all records, books, and matters connected with the civil bill court of such county, and relating to his duties under this Act; and the succeeding sheriff shall thereupon sign and give a duplicate of such list to the sheriff retiring from office, to whom the same shall be a sufficient discharge from the further execution of decrees, processes, and other matters therein contained; and the succeeding sheriff shall thereupon stand charged with the execution and care of the said decrees, processes, and other matters contained in the said list, as fully and effectually as if such decrees and processes had been made over to him by indenture and schedule; and if any sheriff shall refuse or neglect, on the expiration of his term of office, to deliver such list within such period as aforesaid, or shall wilfully make out an untrue or incorrect list, or shall refuse or neglect to transfer such decrees and processes, records, books, and matters, in manner aforesaid, it shall be lawful for the chairman of the county, on complaint made to him in court by the incoming sheriff as to any of the said matters, after notice given to such outgoing sheriff six clear days before such application, and upon proof of such refusal or neglect as aforesaid in any of such particulars, to fine the said outgoing sheriff in any sum not exceeding fifty pounds; and every such outgoing sheriff so neglecting or refusing to perform any of the particulars aforesaid shall be further liable to make such satisfaction, by damages and costs, to the party aggrieved thereby, as he, she, or they shall sustain by such neglect or refusal, such damages to be recovered in the ordinary way by process in the civil bill court, and not elsewhere.

Sheriffs, &c., in execution of decrees, to have the same powers as in executing writs of Superior Courts.

23. The sheriff of each county in Ireland and his bailiffs shall have in the execution of the decrees of the civil bill court of such county all the powers, privileges, and rights which the sheriffs of the several counties in Ireland have or are entitled to in the execution of all writs delivered to them for execution out of the Superior Courts in Ireland; and all constables and other peace officers within their several jurisdictions, and all and every other person or persons whom the sheriff of the county would be entitled to call upon to assist him in the execution of any writ, shall to the same extent be liable to assist the sheriff in the execution of any decree of the civil bill courts.

Priority of executions issuing out of Superior Court and civil bill court.

24. When a writ against the goods of a party shall have issued from a Superior Court, and a decree against the goods of the same party shall have issued from the civil bill court, and been lodged for immediate execution, the priority of right to the goods seized under such writ and decree shall be determined by the priority of the delivery of such writ and decree at the office of the under sheriff in the town in which such office shall be kept under this Act.

Irregularity in decree or execution.

25. The sheriff or his bailiffs, in executing any decree of the civil bill court, shall not be deemed trespassers by reason of any irregularity or informality in the form of such decree, or in the mode of executing it; but the party aggrieved may proceed for the special damage which he may have actually sustained by such irregularity or informality against the sheriff or the bailiff guilty thereof.

Rescuing person or goods, or assaulting sheriff or bailiff in execution of his duty, a misdemeanor.

26. Whosoever shall, by violence to, or threat of violence to, or restraint of the person of any sheriff, under sheriff, or bailiff when executing any civil bill decree, or by force, compel or induce such sheriff, under sheriff, or bailiff to abandon any seizure of the body or goods of any person previously made by such sheriff, under sheriff, or bailiff while in the execution of such decree, or who shall rescue or attempt to rescue the body or goods of any person taken under a civil bill decree by such sheriff, under sheriff, or bailiff, shall be guilty of a misdemeanor, and upon conviction thereof shall be liable to be imprisoned for a period not exceeding six calendar months, with or without hard labour.

Under sheriff or deputy to attend the civil bill court, and obey general rules, and orders of chairman.

27. The under sheriff of each county, or his deputy duly appointed by him in writing, shall attend every sitting of the civil bill court of such county, except when his absence shall be allowed by the chairman, and shall in the execution of his duties conform to all such general rules as shall be from time to time made for regulating the proceedings of the court, as herein-after provided, and, subject thereto, to the orders and directions of the chairman.

Regulations as to sale of goods taken in execution.

28. No goods or cattle which shall be taken in execution under any decree of a civil bill court shall be sold until after the end of three clear days at least next following the day on which such goods or cattle shall have been so taken, unless such goods be of a perishable nature, or upon the request in writing of the party whose goods or cattle shall have been so taken; and it shall be lawful for the sheriff from time to time to appoint such persons as he shall think proper for keeping possession of goods or cattle so taken in execution; and the sheriff shall be entitled to receive out of the proceeds of the sale of all goods or cattle taken in execution, and sold by him or by his bailiffs, a sum of money for the expenses of the bailiffs or persons in charge of the property taken (if such property shall remain in their charge), over the amount entered at foot of the decree, at the rate of two shillings and sixpence for each bailiff or person for every twenty-four hours or any fractional part of such period that he shall be so in charge, together with such sum, if any, as he shall actually incur in the sustenance and keep of such cattle: Provided always, that the number of bailiffs or persons for whom the said sheriff may so charge shall not exceed two, and the length of time for which he shall so charge shall not exceed five days; and the said cattle or goods shall be sold by public cant to the highest and best bidder, between the hours of ten in the forenoon and three in the afternoon on such day after such third day as aforesaid, and at such place, as the sheriff or his bailiffs shall appoint, first causing notice in writing, entitled in the cause, of the time and place intended for such sale to be posted up two clear days previous thereto in the market town next to the place of such intended sale, at the usual place for posting public notices there.

Interests in land not to be sold under civil bill execution.

29. It shall not be lawful to seize or sell under any civil bill execution any term for years, or any estate or interest in lands.

Under sheriff &c. may sell by auction without licence.

30. The under sheriff or any of his bailiffs shall have authority to sell goods taken in execution by him or by the sheriff or any bailiff, without the assistance of a licensed auctioneer: Provided always, that the sheriff shall be answerable for the proper care and sale of the goods so taken, to the same extent as sheriffs in Ireland are answerable for the care and sale of goods taken in execution by them under writs out of the Superior Courts.

Provision for appointment of deputy under sheriff as to duties of civil bill court, in case of illness, &c. of under sheriff.

31. In case of the death of any under sheriff, or of the inability of any under sheriff to perform the duties imposed on him by this Act, from illness or other cause, the high sheriff of such county shall forthwith appoint a fit and proper person to act as under sheriff or deputy under sheriff for the execution of the duties of the civil bill court required by this Act, whose name shall be returned to the clerk of the peace within three days from such appointment: Provided, that in the event of the high sheriff being absent from Ireland, or otherwise unable to appoint such deputy under sheriff, it shall be lawful for the Lord Chancellor of Ireland to appoint a fit and proper person to act as such under or deputy under sheriff in reference to the duties of such civil bill court until such appointment shall be made by the high sheriff for the time being, or any successor to be duly appointed in his place.

Execution against goods or person to be superseded on payment of debt and costs.

32. If the party against whom an execution under a civil bill decree shall be issued shall before an actual sale of his goods seized thereunder pay or tender or cause to be paid or tendered to the sheriff, or to the bailiff employed to execute the decree, the amount specified to be levied at the foot of such decree, or such part thereof as the person entitled thereto shall agree to accept in full or in part payment of his debt, together with the lawful poundage fees and charges to the bailiffs or keepers in care of the same, the execution of the said decree shall be superseded or suspended, as the case may be, for such time as the person issuing such execution shall direct, and the goods of the said party shall be released; and any person taken into custody under any such decree who shall have satisfied the sum stated in the entry at foot thereof, or such portion thereof so agreed to be accepted as aforesaid, shall be discharged from custody, but shall be liable to be again taken for the residue, if any, which shall remain due on such decree, provided such residue shall, exclusive of the costs of such decree, exceed ten pounds.

[S. 33 rep. 34 & 35 Vict. c. 99. s. 8.]

General power of appeal in all proceedings under this Act.

34. In any case where a party shall be dissatisfied with the judgment or decree of the chairman in respect of any proceedings instituted by virtue of this Act, it shall be lawful for such party to appeal against such judgment or decree in like manner, and upon the like terms and stipulations, as appeals in other cases are allowed to be brought under the Acts now in force relating to proceedings by civil bill.

Judge of assize may on trial of appeal state case for opinion of Superior Court of Common Law.

35. It shall be lawful for any judge of assize, upon the trial of any appeal, to direct a special case to be stated for the opinion of a Superior Court of Common Law in Ireland, in case any question of law shall arise before him on the trial of any appeal which in his judgment may be proper to be decided by a Superior Court of Common Law; and the case when stated shall be signed by the judge, and the appellant shall lodge the case, and take all other necessary steps to have the case set down for hearing before one of the said Superior Courts of Common Law, within such time as any general rule to be made as herein-after provided shall require; and in default of his so doing the decree shall stand affirmed with costs, unless on special application the judge shall otherwise order.

Superior Courts shall hear and finally determine such cases.

36. The several Superior Courts of Common Law in Ireland are hereby empowered to hear and determine such special cases when submitted to them; and for that purpose they shall severally have and exercise all the powers vested by this or any other Act in the judge of assize in respect of said cases; and on said cases the decision made by any Superior Court of Common Law shall be final and conclusive.

Special case may be amended.

37. Any Superior Court of Common Law before whom any case may be pending may direct said case to be amended by consent of the parties, or on the certificate of the judge who signed said case.

Rules as to hearing and costs of special cases.

38. The judges of the Queen's Bench in Ireland shall as soon as may be convenient after the passing of this Act make rules and regulations, and may from time to time alter and amend said rules and regulations, for the hearing and disposal of all such special cases as may be stated by a judge of assize for the decision of a Superior Court of Common Law, and for regulating the costs of said proceedings, and for directing when and where such cases shall be lodged, and for providing that all such cases shall be distributed in rotation among the three Superior Courts of Common Law in Ireland.

Costs of unsuccessful appeals.

39. In addition to any costs now by law recoverable from any unsuccessful party on an appeal, it shall be lawful to recover from such party such additional costs as may be awarded by the court by whom the special case shall be decided, not exceeding in any case the costs to be fixed by any general rule as aforesaid.

No action in Superior Court on decree of civil bill court.

12 & 13 Vict. c. 104. ss. 17, 18.

40. No action or other proceeding shall be brought in the Superior Courts of Common Law in Ireland upon any decree of any civil bill court; but nothing herein contained shall be deemed to repeal or alter the seventeenth and eighteenth sections of the Poor Relief (Ireland) Act, 1849, for filing and enrolling, as judgments of the Superior Courts, civil bill decrees for the recovery of poor rates.

No civil bill to be brought upon any judgment or decree of a superior or petty session court.

41. It shall not be lawful for any person who shall have obtained a judgment in any of the Superior Courts at Law, or a decree or order of any petty sessions court, in Ireland, to sue by civil bill in Ireland upon such judgment, decree, or order, nor to proceed by civil bill for the recovery of any money which was the subject of the suit upon which such judgment, decree, or order was obtained.

Time within which executors’ accounts are to be lodged.

14 & 15 Vict. c. 57. s. 50.

42. And whereas provision is not made in the Civil Bill Courts (Ireland) Act, 1851, section fifty for the time within which executors and administrators should lodge the accounts and schedules in the said section of the said Act mentioned: Be it enacted, that such executor or administrator shall lodge with the clerk of the peace such schedule or shedules or accounts within one calendar month after he shall have been called on in writing to do so by any person entitled to demand that the same should be lodged as in that section named, or within such other time as the court shall order; and in default of his so doing, if no sufficient cause shall be shown for such default, such executor or administrator shall forfeit a sum not exceeding twenty pounds, to be recovered as in the said section of the said Act is mentioned.

Chairman may issue warrant for bringing up prisoner to give evidence.

43. The chairman of the county, upon application on affidavit by either party in a suit depending before him, may, if he shall think fit so to do, issue an order under his hand and seal for bringing up before the civil bill court any prisoner or person confined in any gaol, prison, or place within his county to be examined as a witness in any cause or matter depending before such court; and the person so required to be brought before such court shall be brought under the same custody, and shall be dealt with in all respects, as a prisoner required by any writ of habeas corpus awarded by any of Her Majesty's Superior Courts of Law at Dublin to be brought before such court to be examined as a witness is now by law required to be brought and dealt with: Provided always, that the person having the custody of such prisoner or person shall not be bound to obey such order unless a reasonable sum be tendered to him for the conveyance of a proper officer or officers, and of the prisoner or person, in going to and returning from such court, such sum to be part of the witness's expenses incident to the hearing of the cause, unless otherwise ordered by the chairman; provided also, that no person confined in a county or city gaol shall be brought up under any such order to any other place than to the court house of such county town, or city or town, where such gaol is situated.

Chairman may renew decree in ejectment, for re-execution, if possession be unlawfully taken by defendant within six months after execution.

44. Where a decree for the possession of lands shall have been pronounced by the chairman of the county, and the defendant in such decree shall, after the same shall have been executed by the sheriff, and within six calendar months after the execution of such decree, unlawfully re-enter or take possession of the lands mentioned therein, it shall be lawful for the chairman, upon the application of the plaintiff therein, to renew such decree for the purpose of enabling the said plaintiff to re-execute the same, provided that such application shall be made at a sessions to be held for the division in which such lands are situated of which such possession shall have been unlawfully taken as aforesaid by the defendant in any such decree; such renewal to be granted upon such notice and in like manner as renewals of decrees in ordinary civil bill cases are now by law authorized to be granted.

Swearing and filing of affidavits to be used in civil bill courts.

45. All affidavits to be used in any civil bill court in Ireland may be sworn before the chairman of the county out of quarter sessions, and anywhere in Ireland, or before any master extraordinary in Chancery in England or Ireland, or any commissioner for taking affidavits in any of the Superior Courts at West-minster or Dublin: Provided, that all affidavits taken as in this section mentioned shall be filed as of record in the court where the same are intended to be used before the same shall be read, for the filing of which the clerk of the peace shall be entitled to receive a fee of sixpence.

Affidavit of landlord admissible in ejectment for nonpayment of rent.

14 & 15 Vict. c. 57.

46. And whereas the eighty-eighth section of the Civil Bill Courts (Ireland) Act, 1851, is repealed by the Landlord and Tenant Law Amendment Act (Ireland), 1860, and it is expedient to re-enact the provisions of the said section to such extent as is herein-after next mentioned: Be it enacted, that in all proceedings by civil bill ejectments for non-payment of rent, where the defendant shall not appear to defend the same, the affidavit of the landlord or lessor, or his agent or receiver, for ascertaining the amount of the rent due, shall be admissible.

Power to chairman to direct any case to be heard in another division, or to adjourn hearing to a town in another division.

47. If the chairman of the county shall be satisfied that any suit pending by civil bill in his court can be more conveniently tried in any other division of his county than that to which it has been returned for hearing, or if during the hearing of any suit it shall appear to the chairman that it would meet the ends of justice to adjourn the further hearing of the said suit to some town in another division of the county, it shall be lawful for him to direct that such case shall be heard in such other division, or he may adjourn the hearing of the same to any town in such other division; and any decree made in such other division shall in that case have the same effect as if the same were pronounced in the division to which the suit was originally returned for hearing.

Power of amendment.

48. It shall be lawful for the chairman of the civil bill court, or any judge of assize on appeal, at all times to amend all processes by adding or striking out parties, whether plaintiffs or defendants, and all other defects and errors in any civil bill process or notice, or other proceeding of the civil bill court, whether there may be anything in writing to amend by or not; and all such amendments may be made in such manner as shall be thereby directed, and with or without costs, and upon such terms as to the said chairman or judge shall seem fit; and all such amendments as may be necessary for the purpose of determining in any existing suit the real question in controversy between the parties shall be so made; and when such amendment shall be allowed, the order for allowing the same, specifying the amendment, shall be entered as of record upon the court book of the clerk of the peace: Provided always, that no such amendment shall be made if it shall appear to the chairman or to the judge of assize on appeal that the same is calculated to mislead and injuriously prejudice the opposite party in the merits of his case.

Amendment of orders or convictions of magistrates on appeals to quarter sessions or chairmen.

49. If on the trial of any appeal to any court of general quarter sessions of the peace in Ireland, or to the chairman of the county, against any conviction or order made or pronounced by any justice or justices of the peace, any objection shall be taken on account of any omission or mistake in the making or drawing up of such conviction or order, or any variance between the facts stated in such conviction or order and the evidence adduced in support thereof, and it shall be shown to the satisfaction of the court that sufficient grounds were in proof before the justice or justices making such conviction or order to have authorized the drawing up thereof free from the said omission or mistake, or that such variance is in some point not material to the merits of the case, it shall be lawful for the court to amend such conviction or order on such terms as it shall think fit, and to adjudicate thereupon as if no such omission or mistake or variance had existed.

Power to take fresh recognizances on appeals to quarter sessions or civil bill court, where those entered into may be defective in form.

50. And whereas the Act now in force giving a right of appeal to the courts of general quarter sessions in Ireland, or the chairman of the civil bill courts in Ireland, frequently require a recognizance or recognizances to be entered into as a condition of such appeal, and appellants are liable to be prevented from trying their appeals upon the merits in consequence of imperfections in the taking of such recognizances: Be it enacted, that where any recognizance or recognizances which shall have been entered into within the time by law required before any justice or justices, for the purpose of complying with any such condition of appeal, shall appear to the court before which such appeal is brought to have been insufficiently entered into, or to be otherwise defective or invalid, it shall be lawful for the court, if it shall so think fit, to permit the substitution of a new and sufficient recognizance, or new and sufficient recognizances, to be entered into before such court, in the place of such insufficient, defective, or invalid recognizance or recognizances, and for that purpose to allow such time, and make such examination, and impose such terms as to payment of costs to the respondent or respondents, as to such court shall appear just and reasonable; and such substituted recognizance or recognizances shall be as valid and effectual, to all intents and purposes, as if the same had been duly entered into at any earlier time or times, as required by any Act or Acts now in force.

Power to quarter sessions to give costs to respondents, when appeals from petty sessions are not proceeded with.

14 & 15 Vict. c. 93.

51. And for the more effectual prevention of frivolous appeals be it enacted, that any court of general or quarter sessions of the peace, upon proof of notice of any appeal to such court having been given to the clerk of the petty sessions court, and such recognizance having been entered into as in the Petty Sessions (Ireland) Act, 1851, is in that behalf mentioned, though such appeal may not be afterwards prosecuted or entered, or though notice in writing of the intention of the party to prosecute the same shall not have been served seven clear days before the commencement of said sessions, as by said Act required, may, if it shall so think fit, at the sessions for which such notice of appeal was given, order to the party receiving the same such costs and charges not exceeding forty shillings as by the said court shall be thought reasonable and just to be paid by the party giving such notice, such costs to be recoverable in the same manner as the costs in ordinary cases of appeal are now by law recoverable.

Expenses may be allowed to witnesses, to be paid by unsuccessful party.

52. It shall be lawful for the chairman of the county, or judge of assize upon appeal, to allow reasonable expenses to any person examined before him in any proceeding by civil bill, and to tax and award against the unsuccessful party in any such proceeding the expenses so allowed, not to exceed the sum of five pounds to any one witness.

Process out of a county may be served by any person, and when served by a process officer of the county where service is made may be proved by affidavit.

53. Every process which shall be required to be served out of the county in which the cause is to be heard may be served by the process officer of any civil bill court, or by any other person; and when the service of process out of the county shall be made by a process officer of the county where such service shall be made, such service may be proved by affidavit purporting to have been made before a master extraordinary in Chancery, or any other person authorized by law to take affidavits; and the fee for taking such affidavit shall be one shilling, and shall be part of the costs incident to the civil bill; and such affidavit shall be filed with the clerk of the peace of the county in which the same shall be used as evidence of service, and before the hearing of the cause in which such affidavit is intended to be used, and shall specify fully the residence of the parties served, and the residence of the person making such affidavit, and the manner in which service was effected, for the filing whereof such clerk of the peace shall be entitled to a fee of sixpence.

Construction.

14 & 15 Vict. c. 57.

23 & 24 Vict. c. 154.

54. The Civil Bills Courts (Ireland) Act, 1851, and the Landlord and Tenant Law Amendment Act, 1860, shall, as to such of the provisions of said Acts as relate to the civil bill courts of Ireland, or any proceeding therein, be incorporated with this Act, and shall, so far as the same are not inconsistent with this Act, be read as if the said recited Acts (except such parts thereof as have been repealed or amended by this Act) and this Act were one Act.

[Ss. 55, 56 rep. 38 & 39 Vict. c. 66. (S.L.R.)]

Entries of decrees and dismisses in clerk of the peace's book to be evidence.

57. In all proceedings, civil or criminal, the entry in the clerk of the peace's book of a decree or dismiss shall be conclusive evidence that a decree or dismiss between the parties named in such entry, and to the purport and effect mentioned therein, was pronounced by the chairman of the county at the sessions of which such book shall purport to be the record, and it shall not be necessary in any case to produce the decree or dismiss signed by the chairman.

General rules to be made from time to time as to forms, procedure, &c.

58. It shall be lawful for the several chairmen of quarter sessions in Ireland, or for any five of them, to be selected at a meeting of the said chairmen to be convened for that purpose, to make and issue such general orders, rules, and regulations as they shall think fit, from time to time and as often as may be deemed necessary, for regulating the forms, proceedings, and general practice of the civil bill courts in Ireland, and from time to time to alter, vary, and annul any previous order relating to the practice of the said courts, and to make any new or other rule or rules, orders and regulations, in lieu thereof, provided that any such rules, orders, and regulations shall not be inconsistent with this Act, or any Act in force in Ireland relating to civil bills. Such rules, orders, and regulations shall be submitted to the Chief Justice of Ireland for his approval; and copies of all such rules, orders, and regulations, when so approved, shall be transmitted to the under sheriffs and the clerks of the peace of the respective counties in Ireland, to be by them kept and preserved in their offices, and there to remain open at all times to public inspection; and such rules, orders, and regulations, when approved by the said Chief Justice, shall be as binding as if they were contained in this Act.

Schedules to be part of this Act.

59. The schedules to this Act annexed shall be taken to be a part of this Act; and the forms herein contained, or any other forms to the like effect, may be used in the respective cases to which they are applicable, and shall be good and sufficient for such cases.

Repeal of inconsistent enactments.

60.      .      .      .      every Act or Acts, or such parts of every Act or Acts, as shall be inconsistent with this Act, shall be and the same are hereby repealed,      .      .      .

Under sheriffs not to act as attorneys before chairmen.

61. No under sheriff, or any person for his use or benefit, shall act as an attorney in any cause or proceeding to be heard or determined before any chairman of any county in Ireland; and if any such under sheriff, or any person for his use or benefit, shall so act as an attorney in any such cause or proceeding, such under sheriff shall thereupon forfeit the sum of one hundred pounds, to be recovered by any person, within one year after such offence committed, by action or information in any of Her Majesty's Courts of Record in Dublin.

Under sheriff to keep an office in the county town, or in one of the quarter sessions towns, in charge of a clerk.

62. The under sheriff for each county in Ireland shall at all times have and keep in the county town of the county for which he shall be so appointed, or in such one of the quarter sessions towns of the county as may be most convenient, and as may be approved by the chairman of quarter sessions, an office for the performance of his duties under this Act; and such office shall be kept open every day in the year (Sundays, Christmas Day, and Good Friday only excepted) from ten o’clock in the morning until three o’clock in the afternoon, such office to be in the charge of a clerk to be appointed by such under sheriff; and the delivery of every decree or other document to such clerk shall be a delivery to the said under sheriff, and the application for a return of a decree to the said clerk shall be an application to the said under sheriff; and the said under sheriff shall keep in the said office, and not elsewhere, the “ejectment” book and “decree and orders” book in this Act mentioned.

Decrees and other documents may be delivered to the sheriff, under sheriff, or clerk at office personally, or sent by registered letter to the under sheriff's office, and not elsewhere.

Proof of delivery by letter.

63. All decrees, certificates, or other documents in relation to any matter under this Act may be delivered to the sheriff, either by giving the same personally to the sheriff, under sheriff, or clerk in charge of the under sheriff's office, in the county of which he is under sheriff, at such office, and not elsewhere, or by sending the same through the General Post Office in a prepaid letter, duly registered, and addressed to the sheriff or under sheriff at the office of the under sheriff in the town in which such office shall be kept; and in all proceedings against any sheriff in which it shall be necessary to prove a delivery of such decree, certificate, or other document, proof that such decree, certificate, or document was duly posted in a prepaid registered letter, directed to the sheriff or under sheriff at the office of such under sheriff in the town in which such office shall be kept, shall be conclusive evidence that such decree, certificate, or document was received by the said sheriff or under sheriff at the time at which such registered letter would have been delivered at the said office in due course of the post, unless the said sheriff or under sheriff shall prove that such registered letter was not delivered at the said office, or was not delivered there until after the usual time for its delivery in due course of the post; and no delivery of any decree, certificate, or other document in any other mode than as herein-before mentioned shall be a good delivery for the purpose of charging the sheriff with receipt thereof.

[S. 64 rep. 57 & 58 Vict. c. 56. (S.L.R.)]

Fees in schedule (B.) to be the lawful fees for the discharge of the duties named.

Penalty for taking greater fees.

65. In all actions and proceedings by civil bill under this Act the fees specified in the schedule (B.) to this Act annexed shall be established, and be deemed and taken as the lawful fees and emoluments for the discharge of the several duties therein specified by the respective persons therein mentioned, and by the process officers for the service of all civil bill processes, whether under this Act or otherwise, and no other fees or payments shall be recoverable for the discharge of such duties; and every sheriff, clerk of the peace, attorney, bailiff, or process officer who shall receive any greater fee, gratuity, emolument, or other consideration for any of the services herein-before or in the said schedule specified shall forfeit and pay the sum of ten pounds sterling for every such offence, to be recovered by civil bill by any person who may sue for the same.

Fees in schedule (B.) to be chargeable against the unsuccessful party, save where otherwise provided.

66. The several fees mentioned and set forth in the schedule (B.) to this Act annexed in that behalf shall, save wherein herein-before or in the said schedule otherwise expressly declared, be chargeable against the party against whom any decree or dismiss shall be pronounced upon any civil bill or other proceeding brought under the provisions of this Act, and in all cases whatsoever as to the fees hereby provided for the process officers.

When business of court shall not be transacted.

67. It shall not be lawful for the chairman of any county in Ireland to open his court or to hear any case of civil bill on Good Friday; neither shall it be lawful for him to open his court or to hear any case of civil bill before ten of the clock in the morning, nor shall it be lawful for him to commence the hearing of any civil bill after five of the clock in the afternoon of any other day.

SCHEDULES referred to in the foregoing Act.

Schedule (B.)

Sect. 8, 11, 65, 66.

[Part I. rep. 34 & 35 Vict. c. 99. s. 8.]

Part II.

Fees payable to the Sheriff.

Part III.

Fees payable to the Clerk of the Peace.

[Parts IV. and V. rep. 56 & 57 Vict. c. 14. (S.L.R.) Sched. (C.) rep. 56 & 57 Vict. c. 14 (S.L.R.)]

[¹ Substituted for sixteenth by 28 & 29 Vict. c. 1. s. 1.]

[¹ Substituted for 11th by 28 & 29 Vict. c. 1. s. 1.]