Upon a motion to postpone a trial, the notice of the intended application omitting to offer the costs of the postponement, the court made the rule absolute as well on payment of those costs as of the costs of the motion, though cause was shewn in the first instance. Ward v. Ducker, 6 Scott, N. R. 45. A party who shews cause successfully, in the first instance, against a rule, which, if granted, would be a stay of proceedings, and operate to his prejudice, will be allowed the costs of opposing the rule. Rennie v. Beresford, 3 D. & L. 464; 15 L. J., Ex. 78; 10 Jur. 76. On discharging a rule with costs, the practice of the court generally is, not to order them to be paid to any one not a formal party to the rule, without a separate application with that object. Reg. v. Green, 2 G. & D. 789. The court has a discretionary power to order costs to be paid by persons making affidavits in support of a motion, particularly attorneys in their professional character; but if the claim for costs arises on the affidavits in answer, there must be a special application. Ib. After an inquisition under the Tithe Commutation Act (6 & 7 Will. 4, c. 71), s. 82, the owner of the land obtained a rule to set aside the writ under which it was taken, and all subsequent | proceedings, which after argument was discharged, no mention being made of the costs: -Held, that the costs of shewing cause against that rule could not be taxed as part of the costs of the inquisition. Hammersmith Rentcharge, In re, 19 L. J., Ex. 66; 14 Jur. 917. A party served with a rule calling upon him to shew cause is not entitled to his costs of appearing upon the rule, if he has no costs to shew. Cassidy v. Stewart, 4 Scott, N. R. 187; 3 M. & G. 575. f. Old Practice. On what Day.]-Though the court will not permit a matter of law to be discussed on the last day of term, it will allow cause to be shewn against a rule, praying for a writ of restitution, where it was referred to the full court from the Bail Court, and counsel had been unable to bring it on till the last day, owing to press of business in the court, and the case is very urgent. Doe d. Stevens v. Lord, 6 D. P. C. 256. Enlarged Motions.] - Where, from pressure of business, a motion cannot be heard within the first four days of term, and the case is inserted in the list of enlarged motions, notice of that fact should be given to the opposite party, or he will be entitled to the costs of proceeding to sign judgment. Emblin v. Dartnell, 1 D. & L. 1010; 13 L. J., Ex. 255. An expired rule cannot be enlarged. Price v. Thomas, 11 C. B. 543. A rule cannot be enlarged after the day on which it is returnable. Abrahams v. Davidson, 6 C. B. 622. Where a party who has to shew cause against a rule moves to enlarge it, it is his duty to draw up and serve the rule for that purpose. Batty v. Marriott, 5 C. B. 420; 5 D. & L. 477; 17 L. J., C. P. 140. So where a rule is enlarged by consent, it is the duty of the party who originally moved the rule to keep it alive by drawing up and serving the enlarged rule. Ib. Where a rule to shew cause on the 20th November had not been served till that day at Birmingham, the court, on the 25th (the last day of term), refused to make it absolute, but enlarged it till the next term. Hawkins v. Benton, 2 D. & L. 465; 14 L. J., Q. B. 9. If a rule cannot be served, it may be amended and enlarged, even though it has run out. Grissold v. Harding, 1 C. B., N. S. 556. A rule obtained on Saturday for Monday may be enlarged of course. Haines v. Aldrit, 2 Chit. 372. In shewing cause against a rule, affidavits may be filed up to ten days before the term when cause is actually shewn, although the rule may have been often enlarged. Gompertz, In re, W., W. & D. 300. On enlarging a rule on the last day of term, the court will allow it to be made a part of the rule that there should be a stay of proceedings. Todd v. Gompertz, W., W. & D. 610. An enlarged rule may be made absolute on the last day on which it stands enlarged. v. Masters, 2 Taunt. 174. Shaw The enlargement of one rule is a violation of a subsequent one in the same matter, which is drawn up with a stay of proceedings. Wyatt v. Prebble, 5 D. P. C. 268. Where a party comes to enlarge a rule against which he has to shew cause, he must file his affidavits a week before the first day of the ensuing term; but, where he comes to enlarge his own rule, he cannot make the indulgence to himself a pretext for imposing a condition upon the other party. Memorandum, 6 Scott, 900. Enlarged rules are not served, because both parties are before the court. Anon., 1 Smith, 199. If a party against whom a rule is granted obtains its enlargement, he cannot afterwards object that it was not personally served. Cartwright v. Blackworth, 1 D. P. Č. 489. Where a rule is enlarged from Trinity Term to Michaelmas Term, affidavits filed a week before the latter term are in time. Johnson v. Marriat, 2 D. P. C, 343. Affidavits in answer to a rule enlarged from one term to another, which requires the affidavits to be filed a certain time before the term, must in all cases, notwithstanding a contrary practice has prevailed, be filed within the time prescribed, unless the party is prevented from filing them by inevitable accident. Turner v. Unwin, 4 D. P. Č. 16; 1 H. & W. 186. Reviving.]-If a rule is drawn up to shew cause in one term, it cannot be absolute in the next term, without enlarging; but it may be revived. Smith v. Collins, 3 D. P. C. 100. Where a defendant resides such a distance from town, that he cannot be served before the day for shewing cause, and the term expires on the day after that day, the rule may be revived in the next term. Rowbottom v. Ralphs, 6 D. P. C. 291. Abandoning.]-A rule, when once obtained, cannot be abandoned by the party moving. Simpson, In re, 17 L. T. 617. If a party obtaining a rule does not choose to proceed on it, the other party cannot compel him. Doe d. Harcourt v. Roc, 4 Taunt. 883. Although the general practice may be for one. party to the suit to draw up a rule obtained in the progress of a cause, if the other party wishes to act upon it he should draw it up within the time to which it relates; for if not drawn up within such period, it is to be considered as having been abandoned. Gingell v. Bean, 1 M. & G. 50. Making Rule of Court.]-Rule 158, of Hilary Term, 1853, applies where the party sought to be charged is an infant. Beames v. Farley, 5 C. B. 178. A rule absolute may be drawn up during term, on an order of a judge dated in vacation. Swaine v. Stone, 4 M. & Scott, 584. But a judge's order granted in vacation must not be drawn up as of the preceding term. Rex v. Price, 2 D. P. C. 233; 2 C. & M. 212; 4 Tyr. 60. The court will not grant a rule absolute in the first instance, for making an order a rule of court, where, by the rule, costs are sought to be imposed on the opposite party. Spicer v. Bond, 2 D., N. S. 955; 7 Jur. 672. A rule for making an order a rule of court, and for the costs of the application, is absolute in the first instance, provided there is an affidavit of the service and of disobedience of the order. Black v. Low, 4 D. & L. 285; 16 L. J., Ex. 56; 10 Jur. 953. Costs due under a judge's order and an allocatur are payable on demand. Thomson v. Billing, 11 M. & W. 361; 2 D., N. S. 824; 12 L. J., Ex. 301; 7 Jur. 354. But an action will lie on a judge's order to refer made by consent, the consent being evidence of an agreement to perform the award. Lievesley v. Gilmore, 1 L. R., C. P. 570; 35 L. J., C. P. 351; 12 Jur., N. S. 874; 15 L. T. 386; 1 H. & R. 849. By Suit in Equity.]—An order, made by consent, whereby it was ordered that proceedings in an action should be taxed upon certain conditions, does not amount to an agreement to perform those conditions; and a bill in equity for a specific performance will not lie. Thames Iron Works and Shipbuilding Company v. Patent Derrick Company, 1 Johns. & H. 93; 29 L. J., Ch. 714; 6 Jur., N. S. 1013. By Attachment.]-An attachment will not be granted for disobedience to a judge's order until it is made a rule of court, though the order has been acquiesced in and acted upon. Baker v. Rye, 1 D. P. C. 689; S. P., Hinchliffe v. Jones, 4 D. P. C. 86. Must be made a Rule of Court.]-The mere circumstance that an agreement contains a proviso for its being made a rule of court will not of itself authorize the court to take such a step. Steers v. Harrop, 1 Bing. 133; 7 Moore, 466. XIX. TIME. A judge's order was, upon an affidavit that it had been served and disobeyed, made a rule of (See Rules of Supreme Court, 1883, Ord. LXIV.) court; and it was made part of such rule, that the costs of making the order a rule of court should be paid by the party against whom the order was made. The court, upon an affidavit shewing that there had been no disobedience, rescinded so much of the rule as related to the costs, although no demand of them had been made. Farrant, Ex parte, 1 B. C. C. 64; 21 L. J., Q. B. 272. An affidavit of service is sufficient, if the service is sworn to have been effected "on the attorney or agent for the plaintiff in this cause." Morris v. Bedward, 9 D. P. C. 130. 1. Generally. 2. Notice to Proceed, 2041. 1. GENERALLY. Extension of-Notice of Motion.] - Where notice of motion has not been given in sufficient time, owing to a bonâ fide mistake, the court may, in its discretion, allow the party in default to shew the reason of the mistake by affidavit, and allow the motion to be made on a later day. Smith v. Smacksmen Insurance Company, 32 W. R. 184. -C. A. Where a motion for a new trial is to be made A judge's order made in an action was as follows:-"I order that the defendant shall within three days obtain the discharge of the plaintiff in the action in which he is detained at the suit of Motion for New Trial.]-The Court of A. B., by paying the debt and 501. agreed costs to Appeal has power under Ord. LVIII. r. 5, to enthe plaintiff's attorney, and shall also within four- large the time for moving for a new trial. Purteen days take, at the defendant's expense, what-nell v. Great Western Railway Company, 1 ever proceedings may be necessary to obtain the Q. B. D. 636; 45 L. J., Q. B. 687; 24 W. R. 720 vacating of the vesting order in the Insolvent Debtors Court obtained by A. B. against the plaintiff in this cause, and that thereupon all proceedings in this action shall be stayed." The master objected to draw up the rule for making the order a rule of court with costs, on the ground that the order was conditional in its terms-Held, that the first two branches of the order were clearly mandatory on the defendant, and the third was for the defendant's benefit when he had performed the other two. The court therefore granted the rule with costs. Crowther v. Crowther, 16 C. B. 177. Enforcing Performance-By Action.] - An action will not lie upon an undertaking contained in a judge's order, though the order was made by consent, and the undertaking was founded on a good consideration. Hookpayton v. Bussell, 9 Ex. 24; 23 L. J., Ex. 267. conditionally on the result of a decision pending in the Court of Appeal in a similar cause, notice of motion should be given within the usual time, and application be then made to the court to postpone the hearing till the decision in the Court of Appeal has been obtained. The court has a full discretion over such applications, and is not limited to cases only where parties have been misled. Peckett v. Short, 32 W. R. 123. For Indorsement on Writ of Date of Service.]-Under r. 6 of Ord. LVII. of Rules of Court, 1875, the court has power to extend the time fixed by r. 13 of Ord. IX. for the making an indorsement on a writ of the date of service out of the jurisdiction. Hastings v. Hurley, 16 Ch. D. 734 ; 50 L. J., Ch. 577 ; 44 L. T. 176; 29 W. R. 440. Where, through inadvertence, the date of the | lar to the previous one. There had been no fresh service of a writ has not been indorsed upon the personal demand of the money since the diswrit within the time prescribed by Ord. IX. r. charge of the last rule. The court made the rule 13, the court can extend the time, so as to make absolute. Burlington v. Richardson, 22 L. J., an indorsement made after the proper time, and Q. B. 385. all subsequent proceedings, valid. Sproat v. Peckett, 48 L. T. 755. For Pleading.]-See PLEADING. For Appeal.]-See APPEAL. Discretion of Judge.]—By a master's order an action was to be dismissed, unless notice of trial were delivered by a certain day. Through a mistake of the solicitor's clerk, notice of trial was not delivered within the required time. A judge at chambers refused, in the exercise of his discretion, to extend the time fixed by the master's order, and the divisional court declined to interfere with the judge's discretion. Gilder v. Morrison, 30 W. R. 815. Effect of Rules on Mercantile Transactions.] -The plaintiff in the action sued on a promissory note at three months, dated the 11th March, 1874; the note was therefore primâ facie due on the 14th June of the same year. The 14th of June was a Sunday. The writ in the action bore date 14th June, 1880, which was a Monday. It was contended that the right of action was barred by the Statute of Limitations :-Held, that Ord. LVII. r. 3, of the Judicature Act of 1875 did not apply to such a case as the present one, as it was not intended to extend the time fixed by the Statute of Limitations. Morris v. Richards, 45 L. T. 210; 46 J. P. 37. See further cases, sub tit. TIME. 2. NOTICE TO PROCEED. Month's Notice.]-By Rules of Supreme Court, 1883, Ord. LXIV. r. 13, in any cause or matter in which there has been no proceeding for one year from the last proceeding had, the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. A summons on which no order has been made shall not, but notice of trial, although countermanded, shall be deemed a proceeding within this rule. To what Cases Applicable.] - Rule 176 of Hilary Term, 1853, applies to the signing of judgment for not proceeding to trial under 15 & 16 Vict. c. 76, s. 101. Metcalf v. Hetherington, 3 H. & N. 755; 28 L. J., Ex. 155. The rule that a term's notice was necessary where no proceeding had been taken in a cause for a year, did not apply to proceedings had after verdict. Newton v. Boodle, 4 D. & L. 664; 3 C. B. 795; 16 L. J., C. P. 135; 11 Jur. 148. Where a rule had been made absolute to set aside a verdict found for the defendant, and for a new trial on payment of costs by the plaintiff, and the plaintiff for more than a year failed to pay the costs, or to take any steps towards availing himself of the rule, the defendant could not move to discharge it without previously giving a term's notice of his intention so to do. Lord v. Wardle, 3 C. B. 295; 15 L. J., C. P. 259. The rule did not apply to a motion to set aside proceedings for irregularity, but only to any steps taken towards judgment. Lumley v. Thompson, 3 M. & W. 632; 6 D. P. C. 558. A term's notice was not necessary if the delay had taken place at the defendant's request. Evans v. Davies, 3 D. P. C. 786; S. P., Bland v. Darley, 3 T. R. 530. A term's notice was not necessary in case of a trial by proviso after a lapse of four terms. Theobald v. Crichmore, 2 B. & A. 594. Or before motion for costs of the day. French v. Burton, 2 C. & J. 634. An order to change an attorney was not a proceeding in a cause dispensing with a term's notice of proceeding. Deacon v. Fuller, 3 Tyr. 382; 1 C. & M. 349; 1 D. P. C. 675. A term's notice was not necessary to revive proceedings against a defendant who had stayed them by obtaining an injunction. Bosworth v. Phillips, 2 W. Bl. 784. Where proceedings are stayed for a time certain above a year, proceedings might go on at the expiration of the time, without a term's notice. Watkins v. Haydon, 2 W. Bl. 762. XX. TERMS. By 36 & 37 Vict. c. 66, s. 26, "terms" are abolished, but they may continue to be referred to in all cases in which they were used as a measure for determining the time within which an act is required to be done. An award was made on the 28th of March, 1877. An application to set it aside under 9 & 10 Will. 3, c. 15, s. 2, was made in the Easter sittings on a day after the 8th of May. Easter Term in 1877, under the former procedure, would have begun on the 15th of April and ended on the 8th of May Held, that the application ought to have been made on a day before the 8th of May, for "terms" still exist as a measure for determining the time within which an award should be set aside under 9 & 10 Will. 3, c. 15, s. 2. Christ's College, Brecknock v. Martin, 3 Q. B. D. 16; 46 L. J., Q. B. 591; 36 L. T. 537; 25 W. R. 637—C. A. After interlocutory judgment had been entered for 251. for default, the rest of the action was referred and an award made. There was no power of entering up judgment on the issues referred. After the lapse of a year the plaintiff gave the defendant notice that the court would be moved in a week. Within a month from the date of the notice, the plaintiff applied for a rule calling on the defendant to pay the 257., or why the plaintiff should not be allowed to sign final judgment. There was a proper demand of the money. The When all the days included between the rule was discharged on the ground that there had Thursday before, and the Wednesday after not been a month's notice of proceeding. A sub- Easter-day (both inclusive), fall within Easter sequent notice was given by the plaintiff that he Term, that term must be prolonged by five busiwould after a month proceed in the action by ap-ness days, and Trinity Term commence five days plying to sign final judgment. After the month later accordingly. Downes v. Bostock, 5 Jur. had expired, the plaintiff applied for a rule simi- 103. XXI. VACATIONS. (See Rules of Supreme Court, 1883, Ords. LXIII. and LXIV.) Jurisdiction of Vacation Judge.]-The jurisdiction of the vacation judge under Ord. LXI. r. 7, extends to the adjournment of sittings by a judge of the Chancery Division during the sittings of the division. Wilson v. Watson, 38 L. T. 380. Absence of Judge temporarily during Term Time.]-Whenever during the regular sittings of the High Court of Justice any judge is absent from any cause, as, for instance, through having risen for a few days' vacation, applications of an urgent nature in any action pending before such judge will be heard and disposed of by the Master of the Rolls or any other judge of the Court of Appeal, under s. 51 of the Judicature Act, 1873, upon a request being obtained from the lord chancellor. Chapman v. Real Property Trust, 7 Ch. D. 732; 26 W. R. 587. What is Long Vacation Business.]—An application for payment out of a parliamentary deposit not previously payable is long vacation business. Wigan Junction Railway Act, In re, 10 L. R., Ch. 541; 44 L. J., Ch. 774. Order to take Effect in Vacation.]-When a person entitled to a vested interest in trust funds in court, to be paid at twenty-one, would attain that age in the long vacation, a prospective order was made for the payment out of the fund to her at such date. Penn, In re, 42 L. J., Ch. 880; 21 W. R. 865. Leave to Serve Short Notice of Motion in Vacation.]-Leave to serve short notice of motion cannot be given by the chief clerk in vacation any more than during the sittings. Conacher v. Conacher, 29 W. R. 230. XXII. PROCEEDINGS IN PARTICULAR ACTIONS. 1. ACTIONS FOR RECOVERY OF LAND-EJECTMENT. Discovery of Documents.]-See DISCOVERY. Application for Leave to Join.]-An application for leave to join another action with an action for the recovery of land must be made before the writ is issued. Pilcher, In re, Pilcher v. Hinds, 11 Ch. D. 905; 48 L. J., Ch. 587; 40 L. T. 832; 27 W. R. 789-C. A. Where another action had been joined with an action for the recovery of land without leave, the court refused to grant leave to continue the action in that form, although the defendants had appeared. Ib. Applies to Counter-claim.] —The provision of r. 2 of Ord. XVII., that no cause of action, except those specified in that rule, shall, unless by leave of the court, be joined with an action for the recovery of land, applies to a counter-claim as well as to an original action. Compton or Comton v. Preston, 21 Ch. D. 138; 51 L. J., Ch. 680; 47 L. T. 122'; 30 W. R. 563. When Leave Necessary.]-An action to establish title to land is an action for the recovery of land so as to require the leave of the court for its joinder with another cause of action. Whetstone v. Dewis, 1 Ch. D. 99; 45 L. J., Ch. 49; 33 L. T. 501; 24 W. R. 93. An action" to establish title to land," not claiming possession, is not an action "for the recovery of land," so as to require the leave of the court, under Rules of S. C., r. 2 of Ord. XVII., for its joinder with another cause of action. Whetstone v. Dewis (1 Ch. D. 99) not followed. Gledhill v. Hunter, 14 Ch. D. 492; 49 L. J., Ch. 333; 42 L. T. 392; 28 W. R. 530. Where the writ was indorsed for declaration of title, declaration that a lease was granted under a mistake, recovery of rents and profits, and a receiver, and the statement of claim asked Appeal from Chambers during.]--See APPEAL. also for possession:-Held, that this was an Before Judicature Acts-Notice of Sittings.] -The notice of sittings in vacation pursuant to 1 & 2 Vict. c. 32, must specify with accuracy and precision the nature of the business to be proceeded with. Field v. Mackenzie, 6 C. B. 384. At the post-terminal sittings in banc, no business can be taken, except that of which notice has been given. Sabor v. Edwards, 3 C. B., N. S. 64. On the last day of term, a rule was made absolute on an affidavit of service. The master, next day discovering that the affidavit was defective, refused to draw up the rule. The court, considering the rule as a pending rule, allowed a motion to be made in the sittings after term to make the rule absolute on an amended affidavit of service. Dow v. Bell, 4 Ex. 259; 18 L. J., Ex. 391. A writ of inquiry in a personal action may be tested in vacation under 2 Will. 4, c. 39, ss. 11, 12. Collett v. Curling, 5 D. & L. 605; 17 L. J., Q. B. 216. action for the recovery of land and nothing else, and that there was no joinder of any cause of action which required the leave of the court. Ib. An action was brought by the plaintiffs to establish their title to certain waste lands, and that they might be quieted in the possession thereof; and for an injunction to restrain the defendants from trespassing on the said lands, and from interfering with the plaintiffs' rights or molesting their tenants and agents :-Held, that the plaintiffs had established their title; that there was not sufficient evidence of a charitable trust which the defendants had alleged, and that the Statutes of Limitation would not in this case protect them; that, having regard to Gledhill v. Hunter (14 Ch. D. 422), the action was well founded, and that the plea that the defendants were not actually in possession and were unable to maintain this Norwich action could not be maintained. (Mayor) v. Brown, 48 L. T. 898. What Claims may be Joined.]-A purchaser came into operation:-Held, that although the bill could not have been sustained before the Judicature Acts, the objection to the jurisdiction was removed by s. 22 of the Judicature Act, 1873. Hurst v. Hurst, 21 Ch. D. 278; 51 L. J., Ch. 729; 46 L. T. 899—C. A. of real property brought an action claiming of November, 1874, when the Judicature Act quiet possession of the property purchased, and an injunction to restrain the defendant from interfering with such possession :-Held, that the claim for an injunction was not a separate cause of action, and could be joined with that for possession without the leave of the court. Kendrick v. Roberts, 46 L. T. 59; 30 W. R. 365. An action for the administration of personal estate may be joined with an action to establish title to real estate where the plaintiff claims both estates under a common gift in the same will. Whetstone v. Dewis, supra. Leave will be given to join with an action for the recovery of land an action for the recovery or delivery up of a deed relating to the land; also for the recovery of personal estate comprised in the same instrument. Cook v. Enchmarch, 2 Ch. D. 111; 45 L. J., Ch. 504; 24 W. R. 293. In an action by the heir-at-law, who was also one of the next of kin of an intestate, against the administratrix, who was in possession of the intestate's real estate, leave was given to join a claim for the recovery of the land, and a claim for the administration of the estate. Kitching v. Kitching, 24 W. R. 901. Leave was given to join with an action for the recovery of land, a claim for a receiver. Allen v. Kennet, 24 W. R. 845. Writ of Possession.]-Where in an ejectment after defence taken, the plaintiff obtains a verdict for possession, mesne rates and costs, execution cannot issue until the judgment is complete, and the plaintiff is therefore not entitled to a writ of possession until the costs are taxed and added to the judgment, or are waived by him. Beasley v. Chapman, 6 L. R., Ir. 393. When, after writ of possession executed, the defendant forcibly retook possession, the Queen's Bench Division made an order renewing the writ. Stacpoole v. Walsh, 6 L. R., Ir. 444. Under Ord. XLVIII. a writ of possession is now substituted for the writ of assistance, whether between parties or as against strangers to the action. Hall v. Hall, 47 L. J., Ch. 680. Judgment for Recovery of Possession of Land.] -A judgment for foreclosure absolute is not a judgment for the recovery of the possession of land within the meaning of Ord. XLII. r. 3, of Rules of Court, 1875. Wood v. Wheater, 22 Ch. D. 281; 52 L. J., Ch. 144; 47 L. T. 440; 31 W. R. 117. A foreclosure action is not an action for the recovery of land within the meaning of the Rules of Court, 1875, Ord. XVII. r. 2. Tawell v. Slate Company, 3 Ch. D. 629. Ejectment Bill Effect of Judicature Act, s. 22.-A bill, which the court held to be a mere ejectment bill, was filed shortly before 2nd Pleadings in.]-See PLEADING. 2. BREACH OF PROMISE OF MARRIAGE.-See HUSBAND AND WIFE. 3. PARTNERSHIP ACTIONS.-See PARTNERSHIP. PREMIUM. I. ON ARTICLES.-See SOLICITOR. II. ON INSURING.-See INSURANCE. III: ON DISSOLUTION OF PARTNERSHIP.- PRESCRIPTION. See EASEMENT. PRESENTATION TO See ECCLESIASTICAL LAW. PRESUMPTIONS. See EVIDENCE. PRINCIPAL AND See CRIMINAL LAW, END OF VOLUME V. |
