28 VICTORIA, the bail-bond; but a plaintiff shall not be at liberty to proceed on the bail-bond pending a rule to bring in the body of the defendant. No. 274. Setting aside attachment and R. Pr. 88. 343. No rule shall be drawn up for setting aside an attachment staying proceed regularly obtained against the sheriff for not bringing in the body or ings on bail-bond. for staying proceedings regularly commenced on the assignment of any bail-bond unless the application for such rule shall (if made on the part of the original defendant) be grounded on an affidavit of merits, or (if made on the part of the sheriff or bail or any officer of the sheriff) be grounded on an affidavit showing that such application is really and truly made on the part of the sheriff or bail or officer of the sheriff as the case may be at his or their own expense and for his or their indemnity only and without collusion with the original defendant. Proceedings after rule to bring in the body. R. Pr. 89. Where rule to return capias expires in vacation. R. Pr. 90. Notice and change of bail. R. Pr. 91 92. Who shall not be bail. R. Pr. 93 94. Bail-piece in the country. R. Pr. 95. 344. Whenever a plaintiff shall rule the sheriff on return of cepi corpus to bring in the body, the defendant shall be at liberty to put in and perfect bail at any time before the expiration of such rule; and a plaintiff having so ruled the sheriff shall not proceed on any assignment of the bail-bond until the time has expired to bring in the body as aforesaid. 345. In case a rule for returning a writ of capias shall expire in vacation and the sheriff or other officer having the return of such writ shall return cepi corpus thereon, a rule may thereupon issue requiring the sheriff or other officer within the like number of days after the service of such rule as by the practice of the court is prescribed with respect to rules to bring in the body issued in term to bring the defendant into court by forthwith putting in and perfecting bail above to the action; and if the sheriff or other officer shall not duly obey such rule, an attachment shall issue in the following term for disobedience of such rule whether the bail shall or shall not have been put in and perfected in the meantime. 346. Notice of more bail than two shall be deemed irregular unless by order of the court or a judge or by consent; and the bail of whom notice shall be given shall not be changed without leave of the court or a judge. 347. No person or persons shall be permitted to justify himself or themselves as good and sufficient bail for any defendant or defendants if such person shall have been indemnified for so doing by the attorney or attorneys concerned for any such defendant or defendants; and if any person put in as bail to the action, except for the purpose of rendering only, be a practising attorney or clerk to a practising attorney or a sheriff's officer bailiff or a person concerned in the execution of process, the plaintiff may treat the bail as a nullity and sue upon the bail-bond as soon as the time for putting in bail has expired unless good bail be duly put in in the meantime. 348. In the case of country bail the bail-piece shall be transmitted and filed with the prothonotary if the same shall have been taken within fifty miles of the General Post Office within eight or if the same shall have been taken beyond that distance within sixteen days. bail. No. 274. 349. A defendant may justify bail at the same time at which 28 VICTORIA, they are put in upon giving four days' notice for that purpose before eleven o'clock in the morning and exclusive of Sunday; and if the Justification at plaintiff is desirous of time to inquire after the bail and shall give time of putting in one day's notice thereof as aforesaid to the defendant his attorney or R. Pr. 96. agent as the case may be before the time appointed for justification stating therein what further time is required (such time not to exceed three days), then unless the court or a judge shall otherwise order, the time for putting in and justifying bail shall be postponed accordingly, and all proceedings shall be stayed in the meantime. R. Pr. 97. 350. Every notice of bail shall in addition to the descriptions Notice of bail to of the bail mention the street or place and number if any where each state residence. of the bail resides, and all the streets or places and numbers if any in which each of them has been resident at any time within the last six months, and whether he is a housekeeper or freeholder. and oppo panies notice. 351. If the notice of bail shall be accompanied by an affidavit Costs of justificaof each of the bail according to the form contained in the Thirty-sition where second Schedule to this Act, and if the plaintiff afterwards except affidavit accomto such bail, he shall if such bail are allowed pay the costs of justifi- Thirty-second cation; and if such bail are rejected, the defendant shall pay the Schedule. costs of opposition unless the court or a judge shall otherwise order. R. Pr. 98. R. Pr. 99 100. 352. If the plaintiff shall not give one day's notice of exception Notice of to the bail by whom such affidavit shall have been made, the exception. recognizance of such bail may be taken out of court without other justification than such affidavit; but where notice of bail shall not be accompanied by such affidavit and in bail in error the plaintiff may except thereto within twenty days next after the putting in of such bail and notice thereof given to the plaintiff or his attorney; or where special bail is put in before any commissioner the plaintiff may except thereto within twenty days next after the bail-piece is transmitted and notice thereof given as aforesaid; and no exception to bail shall be admitted after the time hereinbefore limited. R. Pr. 101. 353. Affidavits of justification shall be deemed insufficient unless Affidavit of they state that each person justifying is worth double the amount (a) justification. sworn to over and above what will pay his just debts and over and above every other sum for which he is then bail, except when the sum sworn to exceeds one thousand pounds when it shall be sufficient for the bail to justify in one thousand pounds beyond the sum sworn to. and place of 354. It shall be sufficient in all cases if notice of justification Notice of time of bail be given two days before the time of justification; and in all justification. cases bail either to the action or in error shall be justified when R. Pr. 102 103. required within four days after exception before a judge at chambers 11 Geo. IV. & both in term and vacation or in some other convenient place to be s.12. by him appointed as well in term as in vacation and whether the defendant be actually in custody or not. (a) An affidavit of justification not sworn to double the amount of the writ is an irregularity and can be waived.-Lowe v. Cooper, A.R., 24 June 1869. The Act 4 W. & M., c. 4, intituled "An Act 1 Will. IV. c. 70 for taking special bails in the country upon actions and suits depending in the Courts of King's Bench, Common Pleas, and Exchequer at Westminster," is in force in Victoria.—Ibid. 28 VICTORIA, No. 274. Render of principal. R. Pr. 104 105. Mode of render ing the defendant 1 Will. IV. c. 70 R. Pr. 106. Mode of render Ib. s. 22. R. Pr. 107. 355. Bail though rejected shall be allowed to render the principal without entering into a fresh recognizance; and bail shall be at liberty so to do at any time during the last day for rendering, so as they make such render before the prison doors are closed for the night. 356. A defendant who shall have been held to bail on any mesne process may be rendered in discharge of his bail to any gaol in the colony, and the render to such gaol shall be effected in manner following (that is to say) :-the defendant or his bail or one of them shall for the purpose of such render obtain an order of a judge; and on application by a defendant or his bail or either of them for such order it shall be specified on whose behalf such application shall be made, the state of the proceedings in the cause, for what amount the defendant was held to bail, and by the sheriff or deputy sheriff of what district he was arrested, which facts shall be stated in the order; and on such order being lodged with the gaoler of the district gaol in which such defendant was so arrested, the defendant may be rendered to his custody in discharge of the bail; and on such lodgment and render a notice thereof and of the defendant's being actually in custody thereon signed by the defendant or his bail or either of them or the attorney or agent or any or either of them shall be delivered to the plaintiff's attorney or agent; and thereupon the bail for the said defendant shall be wholly exonerated without entering any exoneretur, and the sheriff or other person responsible for the custody of debtors in such gaol shall on such render be duly charged with the custody of such defendant. 357. If a defendant shall be in custody of the gaoler of any ing a prisoner. gaol by virtue of any process issued out of the said court, he may be rendered in discharge of his bail in any other action depending in the said court in like manner as is lastly hereinbefore provided; and thereupon the bail shall be wholly exonerated without entering any exoneretur, and the sheriff or other person responsible as aforesaid shall on such render be duly charged with the custody of such defendant. Render after action on recognizances. R. Pr. 108. Liability of bail and staying proceedings. R. Pr. 109 110. Costs of ineffec- 358. Where the plaintiff proceeds by action on the recognizance of bail, the bail shall be at liberty to render their principal if he reside within fifty miles of the General Post Office at any time within eight, or if he reside beyond that distance at any time within sixteen, days next after the service of the process upon them but not at any later period; and upon notice thereof given the proceedings shall be stayed upon payment of the costs of the writ and service thereof only. 359. Bail shall only be liable to the sum sworn to by the affidavit of debt and the costs of suit not exceeding in the whole the amount of their recognizance; and to entitle bail to a stay of proceedings pending an appeal to Her Majesty in Her Privy Council or proceedings in error, the application must be made before the time to surrender is out. 360. Whenever two or more notices of justification of bail shall have been given before the notice on which bail shall appear to justify, no bail shall be permitted to justify without first paying (or securing to the satisfaction of the plaintiff his attorney or No. 274. agent) the reasonable costs incurred by such prior notices, although 28 VICTORIA, the names of the persons intended to justify or any of them may not have been changed and whether the bail mentioned in any such prior notice shall not have appeared or shall have been rejected. R. Pr. 123 124. 361. Every rule or order of a judge directing the discharge of Proceedings a defendant out of custody upon special bail being put in and against prisoners. perfected shall also direct a supersedeas to issue forthwith; and the plaintiff shall proceed to trial or final judgment against a prisoner in the term next after issue is joined or at the sittings or circuit court next after such term unless the court or a judge shall otherwise order, and shall cause the defendant to be charged in execution within the term next after such trial or judgment. a year's 362. A rule or order for the discharge of a prisoner who has Discharge after been detained in execution a year for a sum under twenty pounds may imprisonment. be made absolute in the first instance on an affidavit of notice given R. Pr. 129. ten days before the intended application, which notice may be given before the year expires. (24.) Rules Summonses and Orders. 363. Every rule of court shall be dated the day of the week Rules to be dated month and year on which the same is drawn up without reference when drawn up. to any other time or date; and side-bar rules may be obtained on the last as well as on other days in term. R. Pr. 149 150. 364. A rule may be enlarged if the court think fit without Enlarged rules. notice; and all enlarged rules shall be drawn up for the first day in R. Pr. 151 152. the ensuing term unless otherwise ordered by the court. before judge. R. Pr. 153 154. 365. It shall not be necessary to issue more than one summons Attendances for attendance before a judge upon the same matter, and the party taking out such summons shall be entitled to an order on the return thereof unless cause is shown to the contrary; and an attendance on a summons for half an hour next immediately following the return thereof shall be deemed a sufficient attendance. R. Pr. 155 156 157. 366. All consents upon which orders for signing judgments are Judge's order for obtained shall be preserved in the chambers of the judges; and in judgment. actions where the defendant has appeared by attorney, no such order shall be made unless the consent of the defendant be given by his attorney or agent; and where the defendant has not appeared or has appeared in person, no such order shall be made unless the defendant attends the judge and gives his consent in person or unless his consent be attested by an attorney acting on his behalf except in a case where the defendant is a barrister attorney or conveyancer. order a rule of 367. Where a judge's order is made during vacation, it shall Making a judge's not be made a rule of court before the next term; and where a court. judge's order or order of nisi prius is made a rule of court, it shall R. Pr. 158 159. be a part of the rule that the costs of making the order a rule of court shall be paid by the party against whom the order is made, provided an affidavit be made and filed that the order has been served on the party his attorney or agent and disobeyed. attachment. 368. All rules for attachments shall be absolute in the first Rule for instance in the two following cases only (that is to say) :-first for R. Pr. 168. No. 274. 28 VICTORIA, non-payment of costs on the prothonotary's allocatur; and secondly against the sheriff for not obeying a rule to return a writ or to bring in the body. Rules to set aside awards and annuities. R. Pr. 169. When rules stay Court fees. Fees and expenses. 1 Vict. c. 55 s. 2. 369. Where a rule to show cause is obtained to set aside an award or annuity, the several objections thereto intended to be insisted upon at the time of moving to make such rule absolute shall be stated in the rule to show cause. 370. Rules to show cause shall be no stay of proceedings unless two days' notice of the motion shall have been served on the opposite party except in the cases of rules for new trials or inquiries or to enter a verdict or nonsuit motion in arrest of judgment or for judgment non obstante veredicto to set aside an award or annuity deed or to enter a suggestion or by the special direction of the court. 371. The fees mentioned in the Thirty-third Schedule to this Act may and shall be paid and taken in the said court and in the offices thereof and in the chambers of the judges. 372. The sheriff and his officers concerned in the execution of process directed to him may demand take and receive the fees, and such sheriff and officer and shewers jurymen and appraisers shall be entitled to and may take and retain for their own use the sums and expenses allowed by and mentioned in the Thirty-fourth and Thirtyand Thirty-fifth fifth Schedules to this Act and no more. Thirty-fourth Schedules. Extortion. Ib. s. 3. Taking fees under officer sheriff &c. Ib. s. 3. in 373. Any officer of the Supreme Court, and any person employed any of the offices thereof or in the chambers of any judge thereof, and any sheriff officer or minister acting in the execution of process directed to the sheriff or engaged or concerned therein, who shall extort demand take accept or receive from any person any fee or fees gratuity or reward not allowed and mentioned as aforesaid or greater in amount than as allowed and mentioned as aforesaid, upon complaint thereof made against him to the Supreme Court and on proof being made thereof upon oath either by the examination of witnesses vivá voce or on affidavits or on interrogatories to the satisfaction of the said court, shall be adjudged guilty of a contempt of such court and punished by such court accordingly. 374. If any person not being such officer or minister as aforepretext of being said shall assume or pretend to act as such and shall extort demand take accept or receive any fee or fees gratuity or reward under color or pretext of such office, he shall on like complaint and proof be in that respect dealt with by the court in like manner. Court may award Amendments at trial. 3 & 4 Wm. IV. c. 42 s. 24. 375. In all cases of summary complaints as aforesaid, the court may at its discretion award the costs of or occasioned by such complaint to be paid by either party to the other such costs to be taxed by the Prothonotary. Provided always that no such complaint shall be entertained unless made before the last day of term next following the act whereof complaint is made. (25.) Amendment. 376. In all cases of variance between the proof and the record in any action at law now or hereafter depending in the Supreme Court, it shall be lawful for the said court or the judge before whom |