No. 345. issue all summonses precepts and warrants, and shall make lists of 33 VICTORIA, all causes suits and matters for hearing, further hearing or rehearing, and shall make entries in the register of all verdicts orders decrees 8 & 9 Vict. and judgments of the said court and discharge all other duties and c. 95 s. 27. powers imposed or conferred on them under or in pursuance of this Act or according to the rules to be made as hereinafter provided and keep an account of all proceedings of the court, and shall take charge of and keep an account of all court fees and fines payable or paid into court and of all moneys paid into and out of court, and shall enter an account of all such fees fines and moneys in such manner and form and in such books or otherwise as may from time to time be prescribed by the rules made as hereinafter mentioned; and such entries in the said register and books respectively, or a copy thereof respectively bearing the seal of the court and signed and certified as a true copy by the registrar of the said court, shall at all times be admitted in all courts and places whatsoever as evidence of such entries and of the proceedings referred to by such entry or entries and of the regularity of such proceeding without any further proof, and no record of any plaint verdict judgment order or decree other than the entry or entries as aforesaid shall be necessary. c. 108 s. 58. 23. Every registrar and deputy-registrar and assistant registrar Registrar may shall have power and is hereby authorised to take and administer administer oaths. affidavits depositions declarations oaths and affirmations in relation to any cause suit matter or proceeding in any county court: Pro- 19 & 20 Vict. vided that any affidavit to be used in a county court shall and may be sworn before such registrar or deputy-registrar or assistant registrar, or before any judge of the Supreme Court, or before any judge of any court of mines or of any county court or any justice of the peace or any commissioner for taking affidavits in the Supreme Court. Bailiffs. bailiffs assistants. c. 95 s. 31. 24. For every such court there shall be one or more bailiffs, Appointment of whom the judge in case of inability or misbehaviour may by order and under his hand remove; and every such bailiff may, subject to the 8 & 9 Vict. restrictions hereinafter contained, by any writing under his hand appoint a sufficient number of able and fit persons not exceeding such number as shall be from time to time allowed by the judge to be officers to assist the said bailiff, and at his pleasure may dismiss all or any of them and appoint others in their stead; and every officer so appointed may also be suspended or dismissed by the judge. Provided that it shall be lawful to appoint a member of the police force to act as a bailiff or assistant bailiff at any place, anything in any law now or hereafter in force to the contrary notwithstanding. 25. The said bailiffs or one of them shall if required by the Bailiff's duty. judge attend every sitting of the court, unless when their absence Ib. s. 33. shall be allowed for reasonable cause by the judge; and shall by themselves or by the officers appointed to assist them as aforesaid serve all such summonses issued out of the said court as may be delivered to them for service, and shall execute all the warrants and precepts issued out of the court; and the said bailiffs and officers shall in the execution of their duties conform to all such general rules as shall be from time to time framed for regulating the No. 345. 33 VICTORIA, proceedings and practice of the court as hereinafter provided, and subject thereunto to the order and direction of the judge; and the said bailiffs shall receive from the registrar and retain for their own use for and in respect of such duties as shall have been performed by them or by the officers appointed to assist them all fees and sums of money allowed as hereinafter mentioned in the name of fees payable to the bailiff, out of which they shall provide for the execution of the duties for which such fees are allowed and for the payment of the officers appointed to assist them; and such fees shall be paid to the bailiff upon the performance of such duties but not before; and every such bailiff shall be responsible for all the acts and defaults of himself and of the officers appointed to assist him in like manner as any sheriff in Victoria is responsible for the acts and defaults of himself and his officers. Provided always that in every court holden under this Act, in which the fees allowed to be taken by the bailiff's of the court shall appear to be more than sufficient, it shall be lawful for the Governor in Council to declare that a certain specified part only of their fees shall be paid to them respectively; and in that case and so long as such order shall be in force, the amount of the residue of such fees shall be accounted for paid and applied in the same manner as all other fees payable to such registrar. 30 & 31 Vict. c. 142 s. 30. Penalty on officers for corrupt practices. 9 & 10 Vict, c. 95 s. 117. Registrar and bailiff to be distinct persons attorneys. Ib. s. 28. 26. Every registrar bailiff or other officer employed in putting this Act or any of the powers thereof in execution, who shall wilfully and corruptly exact take or accept any fee or reward whatsoever, other than and except such fees as are or shall be appointed and allowed respectively as aforesaid for or on account of anything done or to be done by virtue of this Act, or on any account whatsoever relative to putting this Act into execution, shall on conviction thereof forfeit and pay any sum not exceeding Fifty pounds, and shall be for ever incapable of serving or being employed under this Act in any office of profit or emolument. 27. It shall not be lawful for the registrar of any county court or the partner of any such registrar or any person in the service or and not to act as employment of such registrar or of his partner to act as bailiff of the court, or for the bailiff his partner or any person in the service or employment of such bailiff or of his partner to act as registrar; and no officer of the court shall either by himself or by his partner be directly or indirectly engaged as counsel attorney or agent for any party in any proceeding in the said court. Ib. s. 29. Penalty for ing enactment. 28. Every person who being the registrar of any such court or breach of preced- the partner of such registrar or a person in the service or employment of any such registrar or of his partner shall accept the office of bailiff of such court, or who being the bailiff of such court or the partner of any such bailiff or a person in the service or employment of any such bailiff or of his partner shall accept the office of registrar in the execution of this Act, and also every officer of any such court who shall be by himself or his partner or in any way directly or indirectly concerned as counsel attorney or agent for any party in any proceeding in the said court, shall for every such offence forfeit and pay the sum of One hundred pounds with full costs of suit to any person who shall sue for the same by action of debt or on the case in the Supreme Court. Ib. s. 30. 29. Every registrar and bailiff of every court holden under this 33 VICTORIA, Act who may receive any moneys in the execution of his duty shall No. 345. give security for such sum and in such manner and form as the Registrar and Governor in Council from time to time shall direct for the due bailiff to give performance of their several offices, and for the due accounting for 9 & 10 Vict. and payment of all moneys received by them under this Act or c. 95 s. 30. which they may become liable to pay for any misbehaviour in their office. Court Fees. security. 19 & 20 Vict. 30. There shall be payable on every proceeding in the county court fees paycourts to the registrar and assistant registrar of the several courts able by suitors. such fees as shall be allowed in the manner next hereinafter men- c. 108 s. 78. tioned and none other; and a table of such fees shall be put up in some conspicuous place in the court house and in the registrar's and assistant registrar's office; and the fees on every proceeding shall be paid in the first instance by the party on whose behalf such proceeding is to be had on or before such proceeding; and the fees upon execution or commitment shall be paid into court before or at the time of the issue of the warrant of execution or commitment; and it shall be lawful for the Governor in Council to direct what amount of fees and in respect of what steps taken process issued or duties performed fees shall be taken in the county courts in such manner as to him shall seem fit, and from time to time to lessen or Ib. s. 79. increase the same; and such fees may be regulated by way of per centage on the amount of the demand; and it shall be lawful for the Governor in Council from time to time to appoint instead of all or any of the fees which may from time to time be payable as aforesaid other fees by way of per-centage or otherwise to be payable on such proceedings under this Act as the Governor in Council may direct. Actions against Persons acting under this Act and Bailiffs. defended. under this Act. 31. In every action against the registrar or deputy registrar or Actions against assistant registrar of any county court for anything done in obedience officers how to any warrant issued by him under this Act, it shall be a sufficient justification for such registrar or deputy registrar or assistant registrar to plead the judgment or order of such court or of the judge thereof and the warrant thereupon, without alleging or setting forth the previous proceedings or that the cause of action for which such judgment was recovered was cognizable by or accrued within the jurisdiction of such court or judge; and in every action against Actions against the bailiff of any such court or any officer servant or agent of such officers acting bailiff or against the keeper of any gaol for anything done by such bailiff or by his command or authority or by such keeper in obedience to any warrant or precept issued under this Act, it shall be sufficient for such bailiff officer servant or agent or for such keeper to justify under such warrant alone, without alleging that the 13 & 14 Vict. same was made and issued within the jurisdiction of such court and c. 61 s. 19. without alleging or setting forth the judgment or previous proceedings in the same manner as any sheriff can and may justify under any writ issued out of the Supreme Court; and in either of the cases aforesaid proof of the matters so alleged shall be sufficient evidence in support of such plea. 33 VICTORIA, No. 345. Time for bringing actions against officers of the court. 9 & 10 Vict. c. 95 s. 138. Defendant may tender amends. 15 & 16 Vict. c. 54 s. 6. Protection to bailiffs &c. 9 & 10 Vict. c. 95 s. 114. Appearance to be 32. All actions to be brought against any person for anything done under this Act shall be commenced within six calendar months after the act complained of was committed; and no writ plaint summons or other proceeding shall be issued out against, nor any copy of any process served upon, any person for anything by him done in the execution of his office under this Act, until a notice in writing of such intended writ or process shall have been delivered to him, or left at his usual place of abode, by the party intending to issue such writ or plaint summons process or other proceeding, or the attorney of the party who intends to cause the same to be sued out, or served at least one calendar month before the suing out or serving the same; and such notice shall clearly and explicitly set forth the nature of the intended action, and the cause of action, and on the back thereof shall be endorsed the name and place of abode of the party intending to bring such action, or the name and place of business of his attorney. 33. It shall be lawful for the defendant in any such action, at any time before plea pleaded, to tender, or cause to be tendered, any sum of money as amends for the injury complained of to the party complaining or to his attorney or agent; and if the same shall not be accepted, it shall be lawful for the defendant to pay such sum tendered or any other sum into court, and to plead the general issue, and to give the special matter of his defence, and also such payment into court, in evidence, by virtue of this Act; and no such plaintiff shall be entitled to recover, in any such action, if the jury which try the same be of opinion that the sum of money paid into court by the defendant is sufficient amends for the injury complained of; and if the plaintiff shall discontinue such action, or if upon demurrer, or otherwise, judgment be given against the plaintiff, or if the plaintiff be nonsuited, or if a verdict pass for the defendant, the defendant shall be entitled to recover his full costs, as between attorney and client, and shall have the like remedy for the recovery of the same as any defendant has by law in other cases. 34. All constables and other peace officers shall aid in the execution of every writ or execution under the provisions of this Act; and if any officer or bailiff of any county court shall be assaulted while in the execution of his duty, or if any rescue shall be made or attempted to be made of any goods levied under process of the court, the person so offending shall be liable to a fine not exceeding Fifty pounds to be recovered upon proof of such offence by order of a justice of the peace having jurisdiction where the offender shall reside or the offence was committed, and such fine shall be directed to be paid either forthwith or within a certain time to be specified in such order, and if the same be not paid in the time specified therein the defendant shall be imprisoned for a period of time not exceeding three calendar months unless such fine shall be sooner paid. Attorneys and Counsel. 35. It shall be lawful for the party to any cause suit matter or in person or by proceeding under this Act, or for an attorney of the Supreme Court being an attorney acting generally in the action cause suit matter or barrister or attorney. proceeding for such party but not an attorney retained as an advocate 33 VICTORIA, by such first-mentioned attorney, or for a barrister retained by or on No. 345. behalf of the party on either side, to address the court and examine 9 & 10 Vict. and cross-examine the witnesses: Provided that no attorney shall be c. 95 s. 91. allowed to act() or appear for any person in any county court until he has caused his name to be entered in a roll or a book to be kept by the registrar for that purpose stating his place of business where papers may be served. and attorneys to 19 & 20 Vict. 36. The fees to be allowed to barristers-at-law and attorneys Fees to barristers practising in any county court and the expenses to be paid to wit- be fixed by the nesses shall be fixed by some scale in the general rules to be framed rules. as hereinafter mentioned; but the costs of employing a barrister or c. 108 s. 33. attorney either by the plaintiff or defendant shall not be allowed as costs in the cause in any case in which the amount recovered shall not exceed Ten pounds, unless the judge shall allow the same: Provided that attorneys and barristers retained by or on behalf of the party to any suit action matter or proceeding shall be entitled in all cases to maintain an action for the recovery from the persons employing them of the fees fixed by the said rules and of the sums disbursed by them on behalf of their clients, any law usage or practice to the contrary notwithstanding. back. 37. It shall be lawful for the judge of any county court, upon Excessive fees the application of any person who shall have employed any attorney may be recovered or barrister in any suit or proceeding in such court or before such judge, to issue a summons requiring any attorney or barrister (who in the opinion of such judge shall not have been bona fide instructed by an attorney) to appear before such judge at a time and place named in such summons, and at such time and place upon the appearance of such attorney or barrister or upon proof of due service of such summons such judge shall proceed to tax the charges and fees of such attorney or barrister for any such proceedings in such court or before such judge; and if in the opinion of such judge the charges or fees of such attorney or barrister are unreasonable it shall be lawful for such judge unless there be some special contract between the parties by order under his hand to direct such attorney or barrister to repay any part of such charges or fees. 38. In order to abolish the expense occasioned by the taxation costs to be fixed of costs the judge shall at the trial when practicable or in special by judge. cases in the discretion of the judge direct that the registrar shall within a time to be limited by the judge fix the amount of such costs and ascertain the amount payable and paid to witnesses; but notwithstanding anything herein before contained all the costs of any action suit or proceeding in any court holden under this Act or before any judge thereof shall be paid or apportioned between the 9 & 10 Vict. parties in such manner as the judge shall think fit, and the judg- c. 95 s. 48. ment decree or order shall be entered accordingly; but in default of any special direction such costs shall abide the event of such action or suit. (a) The notice required by section 56 of this Act, if sent by the attorney acting for a defendant, such attorney not being enrolled as required by this section, is insufficient.-Regina v. Cope, 1 A.J.R., 23. |