No. 274. and sued within the time and limitation hereinafter expressed but 28 VICTORIA, not afterwards (that is to say):-The said actions of debt for rent or covenant or debt upon any bond or other specialty and actions of debt or scire facias upon recognizance within twenty years after the cause of such actions, the said actions by the party grieved within two years after the cause of such actions, and the said other actions within six years after the cause of such actions. Provided that nothing herein contained shall extend to any actions given by any Act or Statute where the time for bringing such action is or shall be thereby specially limited. 408. [Repealed and new section substituted by 29 Vict. No. 290 8. 2, "Common Law Procedure Amendment," post.] (30.) Miscellaneous. costs. 409. In all actions hereafter brought by executors or adminis- Executors to pay trators in right of their testator or intestate, such executors or administrators (unless the court or a judge shall otherwise order) c. 42 s. 31. shall be liable to pay costs to the defendant in case of being nonsuited or a verdict passing against them, and in all other cases in which they would be liable to costs if suing upon a cause of action accruing to themselves in their own right; and the defendant shall have judgment for such costs accordingly. contract. 410. No wager of law shall be hereafter allowed; and actions Debt on simple of debt shall be maintainable on simple contract against executors or administrators. Ib. ss. 13 14. for injuries in lifetime. Ib. s. 2. 411. Actions of trespass or on the case may be maintained by Actions by and executors or administrators for any injury to the real estate of their against executors testator or intestate committed in his lifetime for which the like testator's actions might have been maintained by him. Provided that every such action shall be brought within one year after the death of such testator or intestate, and that the injury shall have been committed within six calendar months before his death; and the damages when recovered shall form part of the deceased's personal estate; and the like actions may be maintained against executors or administrators for any wrong committed by their testator or intestate to another in respect of his property real or personal. Provided that every such action shall be brought within six months after such executors or administrators shall have taken on themselves the administration of the estate of the deceased, and that the injury shall have been committed within the like period preceding his death; and the damages recovered in such action shall be payable in like order of administration as the deceased's simple contract debts. their address. 412. The prothonotary shall cause to be kept an alphabetical Attorneys within book at his office, to be there inspected by any attorney or his clerk ten miles to enter without fee or reward; and every attorney practising in the said R. Pr, 105. court and residing within ten miles of the General Post Office shall enter in such book in alphabetical order his name and place of business or some other proper place within three miles of the said post office where he may be served with pleadings notices summonses orders rules and other proceedings; and as often as any such attorney shall change his place of business or the place where he may be so served as aforesaid, he shall make the like entry thereof in the said No. 274. 28 VICTORIA, book; and all pleadings notices summonses orders rules and other proceedings which do not require a personal service shall be deemed sufficiently served on such attorney, if a copy thereof shall be left at the place lastly entered in such book with any person resident at or belonging to such place: and if any such attorney shall neglect to make such entry, the fixing up of any notice or the copy of any pleadings notice summons order rule or other proceeding for such attorney in the prothonotary's office shall be deemed a sufficient Parties suing or defending in person to enter their address. R. Pr. 166 167. Service of legal process against printers pub lishers or proprietors of newspapers. 6 & 7 Will. IV. c. 76 s. 9. Infants suing or defending by guardian. R. Pr. 5. Attendance before the prothonotary. R. Pr. 154 172. service. 413. In all cases where a party sues or defends in person, he shall upon issuing any writ of summons or other proceeding or entering an appearance enter in a book, to be kept for that purpose at the prothonotary's office, an address within three miles from the General Post Office at which all pleadings notices summonses orders rules or other proceedings not requiring personal service shall be left; and if such address shall not be entered in the said book, or if such address shall be more than three miles from the General Post Office, the opposite party shall be at liberty to proceed by fixing all pleadings, notices summonses orders rules or other proceedings in the prothonotary's office without further service. Provided always that in all cases where a plaintiff shall have sued out a writ in person or a defendant shall have appeared in person and either party shall by an attorney of the court have given notice to the opposite party or the attorney or agent of such party of such attorney being authorized to act as attorney for the party on whose behalf such notice is given, all pleadings notices summonses orders rules and other proceedings, which according to the practice of the court are to be delivered to or served upon the party on whose behalf such notice is given, shall thereafter be delivered to or served upon such attorney. 414. In order to enforce an appearance in any suit prosecution or proceeding civil or criminal against any printer publisher or proprietor of any newspaper, the service at the house or place mentioned in the affidavit made and delivered in pursuance of the provisions of any Statute now or hereafter to be in force relating to the registration of printers and newspapers as the house or place at which such newspaper to which any proceeding civil or criminal shall relate is or is intended to be printed, of any pleadings notices summonses subpœnas rules orders or other proceedings shall be deemed and taken to be good and sufficient service thereof respectively against the person or persons named in such affidavit as the printer or printers publisher or publishers or proprietor or proprietors of such newspaper. 415. A special admission of prochein amy or guardian to prosecute or defend for an infant shall not be deemed an authority to prosecute or defend in any but the particular action or actions specified. 416. On every appointment made by the prothonotary, the party on whom the same shall be served shall attend such appointment without waiting for a second; or in default thereof the prothonotary may proceed ex parte on the first appointment; and an attendance on an appointment before the prothonotary for half an hour next immediately following the return thereof shall be deemed a sufficient attendance. Office 417. The office of the prothonotary shall be open in term time 28 VICTORIA, and on every day on which the said court holds sitting in banco in No. 274. time of vacation from half-past nine o'clock in the forenoon until once hours. three o'clock in the afternoon; and at all other times from ten R. Pr. 173. o'clock in the forenoon until three o'clock in the afternoon, except between the twentieth day of December in each year and the first day of February in the following year, when they are to be open from eleven o'clock in the forenoon till one o'clock in the afternoon, and except on Sundays and the several holidays herein mentioned when the said offices shall be closed. time. 418. In all cases in which any particular number of days not Computation of expressed to be clear days is prescribed by this Act or by the practice of the court, the same shall be reckoned exclusively of the first day R. Pr. 174 175. and inclusively of the last day, unless the last day shall fall on a Sunday or on any of the holidays herein mentioned in which case the time shall be reckoned exclusively of that day also; and the days between the Thursday next before and the Wednesday next after Easter Day and Christmas Day and the three following days shall not be reckoned or included in any rules notices or other proceedings except notices of trial or of inquiry. writing. 419. All notices and consents required by this Act or by the Notices to be in practice of the court, except consents given in court or before a judge, shall be in writing and shall bear the number of the action. R. Pr. 161. 420. Where the residence of a defendant is unknown, rules services of notices and other proceedings may be fixed in the office but not notices &c. without previous leave of the court or a judge; and it shall not be R. Pr. 162 163 164. necessary to the regular service of a rule or order that the original rule or order should be shown unless sight thereof be demanded, except in cases of attachment; and service of pleadings notices summonses orders rules and other proceedings shall be made before three o'clock in the afternoon, and if made after that hour the service shall be deemed as made on the following day. objected to. 421. No application to set aside process or proceedings for Irregularity irregularity shall be allowed, unless made within a reasonable time when and how nor if the party applying has taken a fresh step after knowledge of the irregularity; and where a summons is obtained to set aside R. Pr. 135 136 137. proceedings for irregularity, the several objections intended to be insisted upon shall be stated therein; and in all cases where a rule is obtained to show cause why proceedings should not be set aside for irregularity with costs, and such rule is afterwards discharged generally without any special direction upon the matter of costs, it is to be understood as discharged with costs. allowed on trials c. 42 s. 28. 422. Upon all debts or sums certain hereafter to be recovered Interest to be in any action, the jury on the trial of any issue or assessment of any in certain cases. damages may if they think fit allow interest to the creditor at a rate 3 & 4 will. IV. not exceeding eight per cent. or (in respect of any bill of exchange or promissory note) at a rate not exceeding twelve per cent. per annum from the time when such debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain); or, if payable otherwise, then from the time when demand. of payment shall have been made in writing, giving notice to the No. 274. 28 VICTORIA, debtor that interest would be claimed from the date of such demand. Provided that nothing herein contained shall extend to authorize the computation of interest on any bill of exchange or promissory note at a higher rate than eight per cent. per annum where there shall have been no plea pleaded. Damages in the nature of interest 3 & 4 Will. IV. c. 42 s. 29. 423. The jury may on any trial or assessment of damages give in certain actions. damages in the nature of interest, if they think fit, over and above the value of the goods at the time of the conversion in all actions of trover or trespass concerning goods, and over and above the money receivable in all actions on any policies of insurance made after the coming into operation of this Act. Costs to one or more of several defendants ob Ib. s. 32. 424. Where two or more person's shall be made defendants in any personal action, any one or more of them who shall have a taining verdicts. nolle prosequi entered or shall obtain a verdict shall have judgment for and recover his reasonable costs of suit; and where any nolle prosequi shall have been entered on any count or as to part of a declaration, the defendant shall have judgment for and recover costs Costs in sei. fa. or in that behalf; and also in all writs of scire facias the plaintiff shall recover his costs as well upon a judgment by default as on a judgment after plea or demurrer; and where judgment shall be given on a demurrer in any action whatever, the party in whose favor such judgment is given shall have judgment to recover his costs. on demurrer. See 8 & 9 Will. III. c. 11 ss. 2 3. Proviso as to acknowledgments. c. 42 s. 5. 425. If any acknowledgment shall have been made either by 3 & 4 Will. IV. Writing signed by the party liable under any such indenture specialty or recognizance or his agent or by part payment or satisfaction on account of the principal or interest due thereon, it shall be lawful for the person entitled to such actions to bring his action for the money remaining unpaid and so acknowledged within twenty years after such acknowledgment or part payment or satisfaction; or in case any person entitled to such action shall at the time of such acknowledgment be under disability as aforesaid or the party making such acknowledgment shall then be beyond sea, then within twenty years after such disability shall have ceased or such party shall have returned from beyond sea as the case may be; and in answer to a plea of this Act the plaintiff in any such action may reply such acknowledgment and that such action was brought within such time as aforesaid. Rules and orders to have effect of judgments. 8. 18. 426. All rules and orders of the Supreme Court at common law whereby any sum of money or any costs charges or expenses 1 & 2 Vict. c. 110 shall be payable to any person, shall have the effect of judgments at law; and such person shall or lawfully may have execution thereon for the moneys so payable, and the judges of the said court may from time to time cause writs of execution to be framed accordingly and to issue as they shall think fit; and all such writs shall be enforced in the same manner as writs of execution are in ordinary cases. Costs of issues. R. Pr. 62. 427. When issues in law and fact are raised, the costs of the several issues both in law and fact will follow the finding or judgment; and if the party entitled to the general costs of the cause obtain a verdict on any material issue, he will also be entitled to the general costs of the trial; but if no material issue in fact be found for the party otherwise entitled to the general costs of the 28 VICTORIA, cause, the costs of the trial shall be allowed to the opposite party. No. 274. R. Pr. 63. 428. No set-off of damages or costs between parties shall be set-off of costs allowed to the prejudice of the attorney's lien for costs in the and damages. particular suit against which the set-off is sought; provided nevertheless that interlocutory costs in the same suit awarded to the adverse party may be deducted. under ten pounds. 429. A statute made and passed in the session of Parliament Costs on damages held in the third and fourth years of the reign of Her present 3 & 4 Vict. c. 24. Majesty intituled, "An Act to repeal part of an Act of the forty"third year of the reign of Queen Elizabeth intituled An Act to 43 Eliz. c. 6 s. 2. "avoid trifling and frivolous suits in law in Her Majesty's Courts "in Westminster' and of an Act of the twenty-second and twenty "third years of the reign of King Charles the Second intituled An 22 & 23 Car. II. "Act for laying impositions on proceedings at law and to make c. 9. "further provisions in lieu thereof" shall be in force in the colony of Victoria. Provided always that within the said colony the words "Forty shillings" wherever they occur in the said statutes shall be construed to mean "Ten Pounds" as fully and effectually to all intents and purposes as if that sum were mentioned therein.(a) notice and limi 430. A statute made and passed in the session of Parliament Double costs and held in the fifth and sixth years of the reign of Her present Majesty tation of actions. intituled "An Act to amend the law relating to double costs notices 5 & 6 Vict. c. 97. "of action limitations of actions and pleas of the general issue "under certain Acts of Parliament" shall be in force in the colony of Victoria. 17 & 18 Vict. 431. It shall be lawful for the court or judge at the trial or Adjournments inquiry of any cause, where they or he may deem it right for the and remanets. purposes of justice, to order an adjournment for such time and c. 125 s. 19. subject to such terms and conditions as to costs and otherwise as they or he may think fit; and where the trial or inquiry of any cause is adjourned as aforesaid at any sittings or circuit court till after such sittings or circuit court, or where any cause is made a remanet, the record shall remain with the prothonotary until and for the next sittings or circuit court, unless otherwise ordered by the court or a judge or by consent; and such cause shall be placed by the prothonotary first in order in the list of causes for trial or inquiry at the next sittings or circuit court, and it shall not be necessary to enter the cause again or to give fresh notice of trial or inquiry or to admit or produce. (a) In a declaration for an action of trespass there were two counts-one for trespass, and the other for mesne profits. £5 was paid into court on the first count. The jury found a verdict for plaintiff, £8 damages. This had been entered as a general verdict. The damages had not been applied to either count. The Prothonotary allowed costs, on the ground that the £5 and the £8 found by the jury were to be taken together; but it was decided that the damages under the Act 3 & 4 Vict. c. 24 s. 2, re-enacted in this section, must be measured solely by the amount found by the jury, without any relation to the money paid into court; and the plaintiff recovered on both counts, the count in contract carried costs.-Clayton v. Buchel, A.R., 7 Sept. 1857. When an action commenced in the County Court has been removed, by certiorari, to the Supreme Court, it is as much "brought" in the Supreme Court when it is transferred as if it had been originally instituted there-so far as the policy is concerned of vesting in the judge the discretion to determine whether it is a case for costs.-Dunn v. Waldock, A.R., 8 April 1869. This is a certificate of personal malice as distinguished from the malice which is implied by law, in the case of every libel.-Walker v. George, 5 A.J.R., 99. |