Proceedings if no appearance entered Court may grant time Payment into Costs to be apportioned or to abide the event of the action Judgments how far final Recovery of Small Debts behalf should appear and admit the cause of action to the full amount claimed, and pay the fees payable in the first instance by the plaintiff, the Court may, if it shall think fit, proceed to give judgment as if the plaintiff had appeared. 22. If on the day so named in the summons, or at any continuation or adjournment of the Court or cause in which the summons was issued the defendant shall not appear or sufficiently excuse his absence, or shall neglect to answer when called in Court, the Court upon due proof of service of the summons may proceed to the hearing or trial of the cause on the part of the plaintiff only, and the judgment thereupon shall be as valid as if both parties had attended: Provided always that the Court in any such case at the same or any subsequent sitting may set aside any judgment so given in the absence of the defendant and the execution thereupon, and may grant a new trial of the cause upon such terms, if any, as to payment of costs, giving security for debt or costs, or such other terms as it may think fit, on sufficient cause shown for that purpose. 23. The Court may in any case make orders for granting time to the plaintiff or defendant to proceed in the prosecution or defence of the suit, and also may from time to time continue or adjourn any Court or the hearing or further hearing of any cause in such manner as to the Court may seem best. 24. It shall be lawful for the defendant in any action brought under this Ordinance within such time as shall be directed by the rules made for regulating the practice of the Court to pay into Court such sum of money as he shall think a full satisfaction for the demand of the plaintiff, together with the costs incurred by the plaintiff up to the time of such payment, and notice of such payment shall be communicated by the Clerk of the Court to the plaintiff by post or by causing the same to be delivered at his usual place of abode or business, and the said sum of money shall be paid to the plaintiff, but if he shall elect to proceed, and if the plaintiff shall recover no further sum in the action than shall have been so paid into Court, the plaintiff shall pay to the defendant the costs incurred by him in the said action after such payment, and such costs shall be settled by the Court, and an order shall thereupon be made by the Court for the payment of such costs by the plaintiff. 25. All the costs of any action or proceeding in the Court not herein otherwise provided for shall be paid by or apportioned between the parties in such manner as the Court shall think fit, and in default of any special direction shall abide the event of the action, and execution may issue for the recovery of any such costs in like manner as for any debt adjudged in the said Court. 26. Every order and judgment of any Court holden under this Ordinance, except as herein provided, shall be final and conclusive between the parties, but the Court shall have power to nonsuit the plaintiff in every case in which satisfactory proof shall not be given to the Court entitling either the plaintiff or defendant to the judgment of the Court, and shall also in every case whatsoever have the power, if the Court shall think fit, to order a new trial or hearing to be had on Recovery of Small Debts such terms as the Court shall think reasonable, and in the meantime to stay the proceedings. 27. No plaint, cause or matter pending in any Court under this Ordinance shall be removed or removable from the said Court into the Supreme Court by any writ or process, unless by leave of the Chief Justice of the Supreme Court, in cases which shall appear to such Chief Justice fit to be tried in the Supreme Court, and upon such terms as to payment of costs, giving security for debt or costs, or such other terms as he shall think fit. certiorari,&c. 28. No judgment, order or determination given or made by the Judgment not to Magistrate or in any such Local Court shall be removed by appeal, be removed by motion, writ of error, certiorari or otherwise into any other Court whatever, save and except in the manner and according to the provisions herein mentioned. 29. If the Chief Justice shall be satisfied that the party against whom a judgment for an amount exceeding twenty pounds, exclusive of costs, has been obtained in a Local 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 Local Court into the Supreme Court, 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 Supreme Court, but no action shall be brought upon such judgment. Judgment may be removed by certiorari if there are no taken under it goods to be Who may appear for the Court any parties 30. It shall be lawful for the party to the suit or other proceeding, or for an attorney of Her Majesty's Supreme Court, being an attorney acting generally in the action for such party, but not an attorney retained as an advocate by such first-mentioned attorney or for a barrister retained by or on behalf of the party on either side, but without any right of exclusive or pre-audience, or by leave of the Court for any other person allowed by the Court to appear instead of the party to address the Court, but subject to such regulations as the Magistrate may from time to time prescribe for the orderly transaction of the business of the Court; and no person not being an attorney admitted to Her Majesty's Supreme Court shall be entitled to have or recover any sum of money for appearing or acting on behalf of any other person in the said Court, and no attorney shall be entitled to have or recover therefor any sum of money, unless the debt or damage claimed shall be more than forty shillings, or to have or recover more than ten shillings for his fees and costs, unless the debt or damage but does not claimed shall be more than five pounds, or more than fifteen shillings, unless the debt or damage claimed shall be more than twenty pounds, and in no case where the debt or damage claimed shall not exceed twenty pounds shall any fee exceeding one pound three shillings and sixpence be allowed for employing a barrister as counsel in the cause; and the expense of employing a barrister or an attorney, either by plaintiff or defendant, shall not be allowed on taxation of costs in the case of a plaintiff where less than five pounds is recovered or in the case of a defendant where less than five pounds is claimed, or in any case, unless by order of the Magistrate. Costs where forty shillings, claim exceeds exceed £20 Where claim shall not exceed £20, attorney shall not recover from his client further costs than set forth in the 30th section Scale of costs to claim exceeds £20 Recovery of Small Debts 31. Where in any action the debt or damage claimed shall not exceed twenty pounds, an attorney shall not be entitled to recover from his client any further costs or charges in the conduct of such suit than those mentioned in the last preceding section, unless upon taxation of costs, the Magistrate be satisfied by writing under the hand of the client, that he has agreed to pay further costs or charges; and in such case the Magistrate may allow any costs and charges not exceeding the amount which may have been so agreed to be paid. 32. With respect to proceedings in the Local Courts in actions be allowed where where the debt or damage claimed exceeds twenty pounds, the AttorneyGeneral as provided in the 74th section shall be empowered to frame a scale of costs and charges to be paid to counsel and attorneys, and from time to time to amend such scale; and such scale or amended scale shall be submitted to the Governor, who with the advice of the Executive Council may allow or disallow or alter the same; and the scale or amended scale so allowed or altered shall, from a day to be named by the Governor, be in force in every Local Court. Provided always that until such scale shall be so framed and approved, and in force as aforesaid, the scale of costs framed under the provisions of the 19th and 20th Victoria chapter 108, respecting similar proceedings in the County Courts in England, shall be taken and received as the scale applicable to proceedings in the said Local Courts of the Colony. Costs between party and party, where claim exceeds £20, shall be taxed by Magistrate Costs between attorney and clients where claim exceeds £20, shall on application of attorney or client be taxed 33 and 34. [Repealed by 58 Vic., No. 18.] by Magistrates Costs not recoverable in certain cases in 35. If in any action commenced after the passing of this Ordinance in Her Majesty's Supreme Court, in covenant, debt, detinue, or Supreme Courts assumpsit, not being an action for breach of promise of marriage, the plaintiff shall recover a sum not exceeding twenty pounds, or if, in any action commenced after the passing of this Ordinance in Her Majesty's Supreme Court, in trespass, trover, or case, not being an action for malicious prosecution, or for libel, or for slander, or for criminal conversation, or for seduction, the plaintiff shall recover a sum not exceeding five pounds, the plaintiff shall have judgment to recover such sum only and no costs, except in the cases hereinafter provided: and it shall not be necessary to enter any suggestion on the record to deprive such plaintiff of costs, nor shall any such plaintiff be entitled to costs by reason of any privilege as attorney or officer of such Court or otherwise. Chief Justice may certify for costs 36. Provided always, and be it enacted, that if the plaintiff shall in any such action as aforesaid recover a sum not exceeding the sum in that behalf herein before mentioned by verdict, and the Chief Justice or other presiding officer before whom such verdict shall be obtained shall certify on the back of the record that it appeared to him at the trial that the cause of action was one for which a plaint could not have been Recovery of Small Debts entered in any such Local Court as aforesaid, or that it appeared to him at the trial that there was a sufficient reason for bringing the said action in the Supreme Court, the plaintiff in such case shall have the same judgment to recover his costs that he would have had if this Ordinance had not been passed. 37. In any action in which the plaintiff shall not be entitled to recover his costs by reason of the provisions of the thirty-fifth section, whether there be a verdict in such action or not, if the plaintiff shall make it appear to the satisfaction of the Supreme Court in which such action was brought, or to the satisfaction of the Chief Justice at Chambers, upon summons, that such action was brought for a cause in which no plaint could have been entered in any such Local Court, or that such action was removed from a Local Court by certiorari, or that there was sufficient reason for bringing such action in the Supreme Court, then and in any of such cases the Supreme Court, or the Chief Justice at Chambers, shall thereupon, by rule or order, direct that the plaintiff shall recover his costs, and thereupon the plaintiff shall have judgment to recover his costs. Power to or Judge at 38. Any person against whom a plaint shall be entered in any Defendant may such Court may, if he think fit, whether he be summoned upon such admit debt plaint or not, in the presence of the Clerk of the Court in which such plaint shall have been entered, or in the presence of an attorney of the Supreme Court, sign a statement confessing and admitting the amount of the debt or demand or part of the amount of the debt or demand for which such plaint shall have been entered, and such Clerk shall, as soon as conveniently may be after receiving such statement, send notice thereof to the plaintiff, by the post or by causing the same to be delivered at his usual place of abode or business, and thereupon it shall not be necessary for the said plaintiff to prove the debt or demand so confessed and admitted as aforesaid, but the Court at the next sitting thereof, whether the parties or either of them attend such Court or not, shall, upon proof by affidavit of the signature of the party, if such statement were not made in the presence of the Clerk, proceed to give judgment for the debt or demand so confessed and admitted, in the same manner, and subject to the same conditions, as if the Court had tried the cause and given judgment thereupon. 39. If the person against whom a plaint shall be entered in any Court can agree with the person on whose behalf such plaint shall have been entered upon the amount of the debt or demand in respect of which such plaint shall have been entered, and upon the terms and conditions upon which the same shall be paid or satisfied, it shall be lawful for such persons respectively, in the presence of the Clerk of the Court in which such plaint shall have been entered or in the presence of an attorney of the Supreme Court, to sign a statement of the amount of the debt or demand so agreed upon between such persons respectively, and of the terms and conditions upon which the same shall be paid or satisfied, such Clerk shall receive such statement, and shall thereupon, upon proof by affidavit of the signature of the party, if such statement were not made in the presence of the Clerk, enter up judgment for the plaintiff for the amount of the debt or demand so agreed on and upon the terms and conditions mentioned in such statement; and such judgment shall to all intents and purposes be the same and VOL. I. A A Parties may agree to amount judgment due and enter therefor If plaintiff do may be given by Magistrate Recovery of Small Debts have the same effect, and shall be enforced and enforceable in the same manner, as if it had been a judgment of the said Court. 40. In every case where the plaintiff shall not appear, either by not appear, costs himself or his attorney, upon the day of the return of any summons for hearing or at any continuation or adjournment of the said hearing, and the defendant shall appear either by himself or his attorney upon such day of hearing, continuation or adjournment, it shall be lawful for the Court to award to the defendant or his attorney, by way of costs of his attendance and satisfaction for his trouble, such sum as the Court shall think fit; and the sum so awarded shall be recoverable from the plaintiff by such ways and means as any debt or damage ordered to be paid by the same Court can be recovered. Either party may appeal Form of appeal Parties may agree not to appeal Chief Justice to make general orders to regu late appeals Not to sue a second time in any Court, after judgment obtained Court may make orders for pay ments by instalments 41 and 42. [Repealed by 58 Vic., No. 18.] 43. No appeal shall lie from the decision of a Local Court, if before such decision is pronounced both parties shall agree in writing signed by themselves or their attorneys or agents that the decision of the said Court shall be final. 44. [Repealed by 58 Vic., No. 13.] 45. If any party shall sue another in any Local Court for any debt or other cause of action for which he hath already sued him, and obtained judgment, in any other Court, the proof of such former suit having been brought and judgment obtained may be given, and the party so suing shall not be entitled to recover in such second suit, and shall be adjudged to pay three times the costs of such second suit to the opposite party. 46. If there shall be cross judgments between the parties, execution shall be taken out by that party only who shall have obtained judgment for the larger sum, or for so much only as shall remain Cross judgments after deducting the smaller sum, and satisfaction for the remainder shall be entered as well as satisfaction on the judgment for the smaller sum, and if both sums shall be equal satisfaction shall be entered on both judgments. Court may against goods 47. Whenever the Court shall have made an order for the payaward execution ment of moneys, the amount shall be recoverable, in case of default or failure of payment thereof, forthwith or at the time or times and in manner thereby directed, by execution against the goods and chattels of the party against whom such order shall be made, and the Clerk of the said Court, at the request of the party prosecuting such order, shall issue a writ of fieri facias as a warrant of execution to the Bailiff of the Court, who by such warrant shall be empowered to levy or cause to be levied by distress and sale of the goods and chattels of such party such sum of money as shall be so ordered wheresoever the same may be found, and also the costs of the execution; and all constables and other peace officers within their several jurisdictions shall aid in the execution of every such warrant: Provided that two or more such warrants issued out of such Court against the same defendant shall have priority one over the other according to the time they shall have been issued. |