No. 274. the trial is had, if such court or judge shall think fit instead of 28 VICTORIA, causing the record or document on which such trial is proceeding to be amended at such trial as by the rules and course of practice of the said court is now provided in that behalf, to direct the jury or assessors as the case may be to find the fact or facts according to the evidence; and thereupon such finding shall be stated upon the said record or document; and notwithstanding the finding on the issue or issues joined the said Supreme Court shall thereafter, if it shall appear to the said court that the variance was immaterial to the merits of the case and such as could not have prejudiced the opposite party in the conduct of the action or defence, give judgment according to the right and justice of the case; and the same power and the power of causing amendments to be made in all such cases of variance as aforesaid in the manner prescribed by the Act in that behalf made shall from and after the coming into operation of this Act be vested in the Supreme Court and the several judges thereof. variances. 377. (a)It shall be lawful for the Supreme Court and any judge Amendment of sitting at nisi prius, if such court or judge shall see fit so to do, to 3 & 4 Will. IV. cause the record on which any trial may be pending before such c. 42 s. 23. court or judge in any civil action or in any information in the nature of a quo warranto or proceedings on a mandamus, when any variance shall appear between the proof and the recital or setting forth on the record on which the trial is proceeding of any contract custom prescription name or other matter in any particular or particulars in the judgment of such court or judge not material to the merits of the case and by which the opposite party cannot have been prejudiced in the conduct of his action prosecution or defence, to be forthwith amended both in the part of the pleadings where such variance occurs and in every other part of the pleadings which it may become necessary to amend, on such terms as to payment of costs to the other party, or postponing the trial to be had before the same or another jury or both payment of costs and postponement as such court or judge shall think reasonable. And in case such variance shall be in some particular or particulars in the judgment of such court or judge not material to the merits of the case but such as that the opposite party may have been prejudiced thereby in the conduct of his action prosecution or defence, then such court or judge shall have power to cause the same to be amended upon payment of costs to the other party and withdrawing the record or postponing the trial as aforesaid as such court or judge shall think reasonable; and after any such amendment the trial shall proceed (in case the same shall be proceeded with) in the same manner in all respects both with respect to the liability of witnesses to be indicted for perjury and otherwise as if no such variance had appeared; and the order for the amendment shall be endorsed on the record. Provided that it shall be lawful for any party who is dissatisfied with the decision of such judge at nisi prius respecting his allowance of any such amendment to apply (a) This section, incorporating two Imperial statutes on the subject of amendments, is of the same effect as those two statutes passed separately; and here, therefore, as in England, the court has not the power to review the decision of a judge at nisi prius refusing an application to amend; the proper course for the party aggrieved by the refusal is to apply to the court not to review the decision of the judge at nisi prius, but to allow an amendment, and direct a new trial if substantial justice required such a course.-Appleton v. Williams, 1 W. & W. (L.), 292. No. 274. 15 & 16 Vict. c. 76 s. 222. 28 VICTORIA, to the court for a new trial upon that ground; and in case the court shall think such amendment improper a new trial shall be granted accordingly on such terms as the court shall think fit, or the court shall make such other order as to them may seem meet. And it shall be lawful for the said court and every judge thereof and any judge sitting at nisi prius(a) at all times to amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not and whether the defect or error be that of the party applying to amend or not) and all such amendments may be made with or without costs and upon such terms as to the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made.(c) Affidavits to be in the first person and in paragraphs. 1854. 2. (26.) Affidavits. 378. Every affidavit to be hereafter used in any cause or civil proceeding in the Supreme Court shall be drawn up in the first person, and shall be divided into paragraphs; and every paragraph Reg. Gen. M. V. shall be numbered consecutively and as nearly as may be shall be confined to a distinct portion of the subject; and every affidavit sworn in a cause shall bear the number of the action; and no costs shall be allowed for any affidavit or part of an affidavit substantially departing from this enactment. Deponent's addi R. Pr. 138 139 140. 379. The addition and true place of abode(e) of every person tion and jurat. making an affidavit shall be inserted therein; and in every affidavit made by two or more deponents the names of the several) persons making such affidavit shall be written in the jurat; and no affidavit shall be read or made use of in any matter depending in court in the jurat of which there shall be any interlineation or Affidavits by erasure. 380. Where any affidavit is sworn before any judge or any comfuterate persons. missioner by any person who from his or her signature appears to be illiterate, the judge's clerk or commissioner taking such affidavit shall certify or state in the jurat that the affidavit was read in his R. Pr. 141. (a) The presiding judge has power to add the usual averment of damages omitted from the declaration.-Kennedy v. Patterson, A.R., 25 June 1857. (b) When an amendment is made at the trial, whether in deference to the opinion of the judge or not, counsel making the amendment must be taken to have made it on good grounds, and must adhere to it.-Stuart v. O'Reilly, A.R., 26 March 1861. (c) W. sued, as administrator of his son, for damages for the death of his son. At the trial, it appeared that the letters of administration were dated subsequently to the writ in the action, and W. was nonsuited. The year for suing having expired, the court has no power to amend the record by inserting, as the date of the writ, a day subsequent to the date of the issue of the letters of administration.-Wilks v. The Australian Trust Company, 6 W. W. & a'B. (L.), 78. (d) The language of this section is directory only, and has no reference to affidavits filed in insolvency. In re Haydon, 2 W. W. & a'B., I.E. & M., 34. (e) "Melbourne" is a sufficient description of the "true place of abode."-Ford v. Clarke, A.R., 13 July 1860. (f) The jurat of an affidavit "sworn at Melbourne in the colony of Victoria by the abovenamed A. and B. this 9th day of March" was sufficient, and need not state that the deponents swore the affidavit "severally."-In re James, A.R., 17 April 1868. (g) An affidavit filed under the "Instruments and Securities Statute," No. 204, s. 55, verifying the residence and occupation of the attesting witness to a bill of sale, is not within this section, as an affidavit " read or made use of in any matter depending in court."-Smith v. Martin, 3 W.W. & a'B. (L.), 35. (h) One of the affidavits made by a marksman, and used on motion for letters of administration was sufficient, although the certificate required by this section was not in the jurat, but below it. In re Belcher, N.C., 32. No. 274. presence to the party making the same, and that such party seemed 28 VICTORIA, sworn. R. Pr. 142 143. 381. No affidavit of the service of process shall be deemed Before whom sufficient if sworn before the plaintiff's own attorney; and where an agent in town or an attorney in the country is the attorney on the record, an affidavit sworn before the attorney in the country shall not be received and an affidavit sworn before an attorney's clerk or agent in town shall not be received in cases where it would not be received if sworn before the attorney himself; but this enactment shall not extend to affidavits to hold to bail. 15 & 16 Vict. 382. Any affidavit to be used in or for the purpose of any Affidavits sworn action may be sworn before a judge of any of the superior courts of out of the colony. law or equity in the United Kingdom of Great Britain and Ireland, c. 76 s. 23. or before a judge of any court possessing the principal civil jurisdiction in any British colony or possession, or before any consul general consul vice-consul or consular agent for the time being appointed by Her Majesty at any foreign port or place: and every affidavit so sworn by virtue of this Act may be used and shall be admitted in evidence saving all just exceptions provided it purport to be signed by such judge consul general consul vice-consul or consular agent upon proof of the official character and signature of the person appearing to have signed the same. Provided always that if any person shall forge the signature of any such affidavit, or shall use or tender in evidence any such affidavit with a false or counterfeit signature thereto knowing the same to be false or counterfeit, he shall be guilty of felony and shall upon conviction be liable to hard labor on the roads or other public works of the colony for seven years or to imprisonment for any term not exceeding three years nor less than one year with hard labor. Provided also that if any person shall wilfully and corruptly make a false affidavit before such judge consul general consul vice-consul or consular agent, every person so offending shall be deemed and taken to be guilty of perjury in like manner as if such false affidavit had been made in Victoria before competent authority; and shall and may be dealt with tried and if convicted sentenced and his offence may be laid and charged to have been committed in Victoria as if his offence had been actually committed therein. and in answer. 383. Where a special time is limited for filing affidavits, no Affidavits for affidavit filed after that time shall be made use of in court or before obtaining rules the prothonotary unless by leave of the court or a judge; and no R. Pr. 145 146. rule which the court has granted upon the foundation of any affidavit shall be of any force unless such affidavit shall have been actually made before such rule was moved for and produced in court at the time of making the motion. matter. 384. Upon motions founded upon affidavits it shall be lawful Amdavits on new for either party with leave of the court or a judge to make affidavits 17 & 18 Vict. in answer to the affidavits of the opposite party upon any new c. 125 s. 45. matter arising out of such affidavits, subject to all such rules as shall hereafter be made respecting such affidavits. 1 28 VICTORIA, No. 274. Each party to serve copy of affidavits. Affidavits used before judge to be filed. R. Pr. 147. Bills to be delivered. 6 & 7 Vict. c. 73 s. 37. 385. When any rule nisi is drawn up on reading any affidavit or other paper writing whatsoever, and when the party obtaining any summons intends to use on the hearing thereof any affidavit or other paper writing whatsoever, a copy of every such affidavit or other paper writing fairly written on foolscap paper in the manner that briefs are now usually written shall at the time of the service of such rule nisi or summons be delivered to the person on whom the same is served, unless a copy or the original of any such affidavit or other paper writing as aforesaid shall be then in the possession of the person against whom such rule nisi or summons shall have been obtained or of his attorney or agent; and when such last-mentioned person intends to use on the argument of the rule nisi or on the hearing of the summons any affidavit or other paper writing, a copy of every such affidavit or other paper writing fairly written as aforesaid shall at a convenient time before such rule nisi or summons is returnable be delivered to the person who obtained the same or to his attorney or agent, unless a copy or the original of any such affidavit or other paper writing shall be then in the possession of such person or of his attorney or agent; and if this enactment shall not be complied with, the court or a judge if they or he shall think fit may prohibit the party in default from using such affidavit or other paper writing on such argument or hearing, or may postpone or adjourn the same, and make such order as to costs and otherwise as they or he shall deem proper. 386. All affidavits used before a judge shall be deposited with the clerk or associate of such judge before the same are used, and shall be by such clerk or associate filed with the prothonotary; and such affidavits shall be delivered to the prothonotary in order to be filed within seven days next after that on which the matter is disposed of. (27.) Attorneys' Bills of Costs. 387. No attorney nor any executor administrator or assignee of any attorney or the trustee of his estate shall commence or maintain any action or suit for the recovery of any fees charges or disbursements for any business done by such attorney until the expiration of one month after such attorney or executor administrator or assignee of such attorney shall have delivered unto the party to be charged therewith or sent by the post to or left for him at his counting-house office of business dwelling-house or last known place of abode a bill(a) of such fees charges and disbursements; and which bill shall be subscribed by such attorney in his proper handwriting (or in case of partnership by any of the partners either with his own name or with the name and style of such partnership) or by the executor adminisTaxation of bills trator or assignee of such attorney or the trustee of his estate; and within a month. upon the application of the party chargeable by such bill within such month an appointment for taxation of the same may be obtained as (a) A bill of costs thus headed-" In the Supreme Court. Re Brighouse. Regina v. Grieve," there being no other heading, either principal or sub-divisional, and the particular items throughout the bill not being so described that it could be learned from them in what jurisdiction of the Supreme Court the business described in them was done, was held not to be a proper bill within the corresponding enactment, 11 Vict. No. 33. Stephen v. Fyffe, A.R., 31 March 1860. No. 274. of course and without order of a judge from the Master-in-Equity in 28 VICTORIA, case the whole of the business contained in such bill shall have been transacted in the Supreme Court in its equitable jurisdiction, or in any manner of lunacy or shall relate to conveyancing business from the Chief Commissioner of Insolvent Estates in case of the whole of such business contained in such bill shall have been transacted in the Supreme Court in its insolvency jurisdiction, and from the prothonotary of the Supreme Court in every other case including criminal business and though the business or part of the business contained in such bill shall not have been transacted in the Supreme Court; and thereupon such bill and the demand of such attorney executor administrator or assignee shall be taxed and settled by such officer without any money being brought into court; and the Supreme Court or a judge thereof shall restrain such attorney or executor administrator or assignee of such attorney or the trustee of his estate from commencing any action or suit touching such demand pending such taxation; and the costs of such taxation shall as hereinafter provided be paid according to the event of such taxation. 6 & 7 Vict. c. 73 388. In case no such application as aforesaid shall be made Taxation after within such month as aforesaid, then it shall be lawful for the one month. Supreme Court or a judge thereof, either upon the application of s. 37. the attorney or the executor administrator or assignee of the attorney or the trustee of his estate whose bill may have been so delivered sent or left as aforesaid or upon the application of the party chargeable by such bill, with such directions and subject to such conditions as the court or judge making such reference shall think proper to refer such bill and the demand of such attorney or executor administrator or assignee of such attorney or the trustee of his estate thereupon to be settled and taxed by such officer of the court as aforesaid; and in case any such reference as aforesaid shall be made on the application of the party chargeable by such bill, then without any money being brought into court; and such court or judge may restrain such attorney or the executor administrator or assignee of such attorney or the trustee of his estate from commencing or prosecuting any action or suit touching such demand pending such reference upon such terms as shall be thought fit. Provided always Taxation after that no such reference as aforesaid shall be directed upon an application made by the party chargeable with such bill after a verdict shall have been obtained judgment signed or a writ of inquiry executed in any action for the recovery of the demand of such attorney or executor administrator or assignee of such attorney or the trustee of his estate or after the expiration of twelve months after such bill shall have been delivered sent or left as aforesaid, except under special circumstances to be proved to the satisfaction of the Supreme Court or a judge thereof to whom the application for such reference shall be made. twelve months. of taxation. Ib. s. 37. 389. Upon every such appointment or reference if either the Payment of costs attorney or executor administrator or assignee of the attorney or trustee of his estate whose bill shall have been delivered sent or left or the party chargeable with such bill having due notice shall refuse or neglect to attend such taxation, the officer to whom such appointment or reference shall be made may proceed to tax and settle such |