tie district (met, - austlii.edu.au · tie district (met, with an introduction, notes, ... 51 doe...

ACT AND RULES

RELATING TO

TIE DISTRICT (MET,WITH AN

INTRODUCTION, NOTES, AND INDEX._

JOHN L. WOOLCOCK, B.A., AND GEORGE SCOTT, M.A.,Barristers-at-Law.

BRISBANE:BY AUTHORITY: JAMES C. BEAL, GOVERNMENT PRINTER.

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*1

1,4

PREFACE

------ ♦------ .

The absence of any local work on the practice of the Pistrict Court, the passing of a new Act, and the promulgation of new Buies seem to the Editors to sufficiently justify the compilation of the present volume.

Erequent reference has been made to decisions upon clauses of the English, Victorian, and New South Wales Acts ; but as these decisions are based on a practice similar to but not in all cases identical with the Queensland law, they are to be consulted merely by way of comparison.

In the introduction an attempt has been made to present a conciseview of the Statute as modified by the Buies; and in this shape it may beof assistance to students.\ \ \ \

The text of the Act and Rules is printed by the Grovernment Printer, and is therefore of authority.

J. L. W.G-. S.

Town Sail Chambers^10th October, 1892.

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% ' . ' .v*’;

ERRATA AND ADDENDA

4-

PAGE.

19.—Under section 58 add, “ The District Court has no jurisdiction to try an action for specific performance. Mitchell v. Cohen, cor. Harding, J., in chambers, 26th September, 1892. ”

21.—Line 6, for “Cherry v. Thompson, 7 Q.B. s. 73” read “7 Q.B. 573.”

21.—Line 32, for “ Grimby v. Akroyd” read 4‘ Grimbley v. Aykroyd.”

21.—Line 34, for “Worth v. Austen” read “ Wirth v. Austin.”

50.—Line 22, for “Moody v. Stewart” read “Moody v. Steward.”

50.—Line 58, for “Stewart v. N. Metrop. Tramways Co.” read “Steward v. N. Metrop- Tramways Co.”

59.—Last line, read “Pole?;. Bright” for “le?;. Bright.”

64.—Line 33, for “Morgan v. Davis” read “Morgan v. Davies.”

104.—Form 2, add, “For hours of office, see Note to Rule 3.”

CONTENTS

' -------♦------Page.

List of Colonial Abbreviations ix.

List of Cases Cited................................................................................... xi.

List of Statutes referred to .................................. . ... ... xix.

Tabular Analysis of Act compared with corresponding ImperialStatute .............................................................................................. xxi.

Introduction .................................................................................................xxiii.

Act .......................................................................................................... 1

Rules of Court.............................................................................................. 86

Forms .......................................................................................................... 104

Index .......................................................................................................... 152

LIST OF COLONIAL ABBREVIATIONS.

A.J.R...................

A.L.T...................

K. & B.................

Knox ..............

P. & W................

Q. L.J...................

Q.L.R..................

S.C.R. (N.S.W.)

V. L.R. (L.); (E.)

W. &W. ...W.W. & A’B. ...

-------- ♦--------

... Australian Jurist Reports,

... Australian Law Times.

... Kerferd & Box, Victorian Digest.

... New South Wales Reports.

... Pain and Woolcock’s Statutes.

... Queensland Law Journal Reports.

... Queensland Law Reports (Beor).

... Supreme Court Reports (New South Wales).

... Victorian Law Reports. Law ; Equity.

... Wyatt and Webb’s Reports (Victoria).

... Wyatt, Webb, and A’Beckett (Victoria).

LIST OF CASES

Cases. Page.

Aberystwith Pier Co. v. CooperAckroyd v. Gill .......................Adams tfw Clutterbuck ...Adams v. G.W. Ry. Co...............Ahern v. O’Donovan...................Airey v. McMahon...................A. J.S. Bank v.- Salisbury Alexander- v. Jones ...Allen v. Owen ..............Allen v. Walker ..............Allhusen v. Brooking ...Allhusen v. Malgarej o ...Anderson v. Ziegler ...Anderson <v. Stather ...Andrews- v. Marris ...Anglo-Italian Bank v. DaviesAnon ... • ..........................Apothecaries Co. v. Burt Apthorpe v. A. ... ...Aris-y. Orchard ..............Arndt v. Porter ... ...Arnold v. Hamel ... ...Arnsby v. Woodward ...Asher, Ex parte ..............Ashley v. Ashley ..............Ashley v. Norris ..............A.S.N. Co. v. Smith ...

Aspey v. J ones ..............Aston v. Hurwitz..............Atkin v. Friend ..............Austin v. Mills ..............Avards v. Rhodes..............

2012562025 61 29 20 412656 21 45 98 13

34, 35 3523 77 21 21 1357 20 63 12

50, 51, 52 1324 38

41, 51 18, 38

Baddeley v. Gilmore ... Badeley v. Consolidated Bank Badman’s Case, Me ...Bailey v. Bailey ..............Bailey v. Bryant ..............Bailey v. Godwin ..............Baillie, Ex parte ..............Baillie, R. v. Dunne, Ex parte Balmforth v. Pledge ...Band of Hope Co. y. Mackay Bank of Australasia v. Keave Bank of Australasia v. Keirce Banks v. Rebbeck ... ...Banque de Credit Commercial

De Gas ..............Barber v. Wood ..............Barnard v. Mann..............Barnes v. Marshall... ...Barton v. Titmarsh... ...Batt v. Price..........................Bay ley, R. v. ...Beal v. Ford ... ..............Beal v. Town Clerk of Exeter Beale v. Macgregor... ...Beard v. Hine ... ...Beard v. Knight ..............Beard v. Perry ..............Bearup v. Barker ..............Beasley v. Roney ... ...Beck v. Pierce ..............Beckingham v. Owen ...Bell v. Graham ..............Bellew v. Markey..............Bennett v. Cosgriff..............Berkeley v. Elderkin ...Berridge v. Roberts ...Beswick v. Boffey..............

4176 31 23 20 20

18, 20 18 48 52 60 61 56

2139

60, 76 21 52

9502020311971186677 30 35 77 30 21 41 35 75

Cases. Page.

Beswick v. Capper......................... 18Bickers v. Speight......................... 24Bidder v. Bridges .......................... • 97Bindon, R. v.9 Ex parte Cairns ... 63Bishop v. Howard ... .............. 56Bishop'y. Woinarski .............. 10Black v. Permewan Wright, & Co. 60Blades v. Lawrence .............. 48, 64Blake v. Beaumont.......................... 20-------- , In re...... ... .............. 13Blenkairne v. Statter...................... 61Blenkinson v. Great Central Co. 52Bloor v. Hunston.......................... 12, 75Bolingbroke v. Townsend.............. 51Bonnard v. Perryman .............. 97Bookham v. Potter.......................... 14Booth v. Clive .......................... 13Booth v. Traill ... .............. 77Borland v. Curry ......................... 24Borneman v. Wilson .............. 37Borthwick v. Walton .............. 21Bosney v. Wordsworth .............. 21, 38Bouch v. Sevenoaks R.T. Co. ... 77Bourke v. Donaghue .............. 23Bowen v. Evans ... .............. 63Bowles v. Drake .......................... 48, 50,

Box v. Green ..........................60

63, 82 77Boyse v. Simson ..........................

Bradworth v. Foshard .............. 51Brighton Sewers Act, In re ... 64Briston v. Eastman .............. 27Broadbent v. Vanrennen.............. 52Brompton C.C.J., R. v................... 10Brookman v. Wenham .............. 63Brooks v. Howard Smith & Sons,

Ltd............................................ 20Broughton, Ex parte .............. 20Brown, Ex parte ... .............. 9Brown v. Book .......................... 61Brown v, Hutchinson .............. 48Brown v. London & N.W. Ry. .. 20, 64Brown v. Taylor .......................... 64Bruce v. Hart .......................... 43Brundell v. Wane........................ 60Brunsden v. Humphry .............. 38Brunskill v. Powell... .............. 38Bucklan d v. Johnston .. ... 51Buckley v. Hann .............. ... 20Bucknell, Ex parte.......................... 25Bullen v. Hooper ... ................... 21Bundanba D.B. v. Ballin ... 17Burling v. Harley.......................... 13Burns v. Slater ... .............. 52Burridge v. Nicholetts .............. 9Bursill v. Tanner .......................... 33Burton v. Le Gros.......................... 11Burton v. Roberts.......................... 77Buss & Co. v. Sheldon .............. 77Butler v. Able white .............. 20Buzolich v. Fletcher .............. 50,63Byrne v. Knipe .......................... 41

Cahill, R. v., Ex parte Patton ... 38Cairns, Ex parte ... .............. 63Calder v. Halket ... .............. 13Caldwell v.. Wren ... .............. 25Caledonia U.G.M. Co, v. Mann ... 24Callaghan v. Hunter . ... 77Cannon v. Johnston ... .. 51, 60Cargill v. Bower .......................... 51

Xll. LIST OF OASES.

■:*

Cases. Page. Cases. Page.

Carpenter v. Street.......................... 24 Cozens v. Lombard......................... 60Carr v. Jeffs..................................... 48 Crawford, Re .......................... 82Carr v. Stringer .......................... 60 Crawford v. Stirling .............. 27Carta Para Co. v. Fastnedge ... 36 Creek v, Newlands.............. ... 51Carter v. Smith .......................... 52, 53 Critchley v. Brown... .............. 50Casey, R. v........................................ 72 Cronshaw v. Chapman .............. 11Castle, R. v........................................ 82 Crook v. Smith ......................... 20Cawkwell v. Russell .............. 51 Cropper v. Smith ......................... 50Cawley v... Furnell.......................... 60 Crosby v. Landy ......................... 48Chalk v. Tennant.......................... 23 Crowley v. Vitty t......................... 18Chamberlain v. King .............. 13 Crump v. Cavendish .............. 33, 35Chapman v» Biggs.......................... 77 Crump v. Temple.......................... 56Chapman v. Knight .............. 60 Cullum, In re ....................... . 75Chapman v. Scheidmayer.............. 20 Cullen v. Moran ......................... 24Chapman v. Withers .............. 59 Cuthbertson v. Parsons .............. 60Chard v. Jervis .......................... 72Charlton, Ex parte.......................... 26 'Charman, Ex parte.......................... 24 Daley v. Hughes ......................... 60Chater v. Chignell.......................... 75 Dalton v. Dalton ......................... 60Chatterton v. Watney .............. 76, 78 Daly & Hellicar v. Cooper ... 69Cherry v. Thompson .............. 21 Daniel v. McCarthy .............. 76Chew v. Holroyd .......................... 18 Daniels v. Charsley......................... 60Chilton, R. v. .......................... 75 David v. Howe ... ... ... 48, 50Christchurch Overseers, Ex parte 9 Davidson v. Brown......................... 52Churchward v. Coleman.............. 45, 64, Davis, R. v....................................... 10

75 Davis r. Fletcher......................... 11, 74Churchward v. Lyons .............. 61 Davis r. Freethy ......................... 76Clarapede v. Commercial Union Davi3 r. Jenkins ......................... 11

Association .......................... 50 Davis r. Lowndes......................... 41Clark v. Wray ... .............. 51 Davis r. Montefiore ................. 62Clarke v. Berger .......................... 23 Davis ?’. Pearce ... ... ... 64Clarke v. Roche .......................... 64 Dawson v. Harrison .............. 45Clarke v. Stancliffe... .............. 23 Dawson v. Malley......................... 77Clarke v. Yorke .......................... 50, 51 De Mesnil v. Dakin .............. 11Clarkson v. Musgrave .............. 60 De Pass v. Capital, etc., CorporaClay v. Oxford .......................... 51 tion .............. .............. 77Clerk v. Mayor of Berwick ... 63 Death v. Harrison.............. ... 76Clerk of Surrey C.C., R. v. ... 64, 68 Dennis v. Seymour .............. 34, 36Clerkenwoll C.C.J., R. v. ... 94 Desart v. Townsend ... ... 30, 35Cliffords. Budds .............. .. 35 Dews v. Ryley ......................... 9, 10,Clifton v. Furley .......................... 45, 60, 13

64 Dibbs r. Newcastle Coal, etc., Co. 27Clowes v. Hilliard.......................... 51 Dickson v. Neath Railway Co. ... 76Cohen v. Hale .......................... 77 Dillon v. Cunningham .............. 72Cohu v. Strachan.......................... 77 Dimes v. Grand Junction Canal... 39Coke v. Jones ... .............. 64 Dinger v. Mathews .............. 52, 60,Cole v. Davies .......................... 69 61Collette v. Goode .......................... 51 Doe v. Amey ......................... 56Collins v. Godefroy ... ... 40 Doe v. Bell ... ......................... 56Collins v. Paddington Vestry ... 43 Doe v. Cook ......................... 57Combined Weighing Co., In re ... 78 Doe v. Crick ......................... 57Comfort v. Betts .......................... 35 Doe v. Horn .............. ... 56Commissioners, etc. v. The Royal, Doe v. Hughes ......................... 57

etc. ... .......................... 56 Doe v. Stanion ......................... 56Confidence, The .......................... 61 Doe v. Summersett......................... 57Connolly v. Teeiing ... ... 23 Doe v. Wells ....................... . 57Connor v. McErlean .............. 24 Dolphin v. Layton ... ... 77Conway, Ex parte.......................... 23, 52, Down v. Yearley ......................... 98

64 Downs v. Fletcher......................... 30Conybeare v. Fames .............. 62 Dowling, R. v................................... 64Cooke v. Birt . ... .............. 69 Dresser v. Jones .............. ... 77Cooke v. Gill .............................. 21 Driscoll v. King ... .... ... 50Cooper v. Higgins ... • .............. 60 Dry Docks Corporation of LondonCooper v. Johnson.......................... 54 v. Delvin ......................... 35Cooper v. Lawson.......................... 77 Duckett v. Glover......................... 51Cooper v. Whittingham .............. 45 Duncan v. Wood ......................... 77Cope, R. v...................................... 14, 97 Dunlop v. Higgins......................... 21Cope, R. v,, Ex parte Rawson ... 46 Dunne, R. v...................................... 18Cope, R. v., Ex parte Smillie ... 46 Dunstan v. Paterson .............. 11, 20Copeman v. Hart.......................... 21, 38 Durbon v. Collis .......................... 57Corbett v. General Steam Co. ... 20 Durham v. Spence......................... 21Cornish v. Abingdon .............. 51 Dwyer v, O’Mullen........................ 51Counsel v. Jarvie ... .............. 49Court v. Sheen .......................... 35Courtis v. Hall .......................... 61 Eade v. Winser ... .............. 79Cowan v. O’Connor... .............. 21 Eagleton v. Gutteridge .............. 69Cowl v. Macdonald.......................... 61 East Anglian Co. v. Lythgoe ... 60Cox v. Slater... .............................. 60 Eastern Miners’ Gold Mining Co.Coxwell v. London Omnibus Co.... 50 v. Sellheim ... .............. . 65

LIST OF CASES.

Page.

Eaton v. Storer ..............Edevain v. Cohen..............Edward v. Wyvill..............Eddowes v. Argentine Co. Edwards v. Davis..............

Elderkin v. Berkeley ...Ellis v. Fleming ..............Ellis v. Peachey ..............Ellis v. Watt ..............Elston v. Rose ..............Elwell v. Jackson..............Elwes v. Mawe ..............Ely v. Moule ..............

Emery v. Barrett..............Engel v. Stourton..............English v. White ..............Essex C.C.J., R. v. ...Evans, R. v. ..............Evans v. Mathews..............Evans v. Nicholson ...Evans v: Roberts ..............Everitt v. Paxton..............Exon v. Russel ..............Eyre v. Highway Board of

Forrest Union ...New

435172

31, 98 31, 34,

3551215795 ,187769

9, 53,68

18, 563560

53, 68826021693120

53

Fallows v. Slatter.........................Farrant v. Thompson ..............Farrow v. Hague .........................Fearon v. Nor vail.........................Fenton v. Earls .........................Ferguson v. Sporling ..............Ferny hough v. Naylor ..............Findlater v. Tuohy ..............Finsbury Building Society v.

Pearce....................................Fitzwalter v. Val Dare Opal Co. Fletcher, R. v. . ..............

Fletcher v. London and NorthWestern Railway ..............

Flight v. Gray .........................Flitters v. Alfrey .........................Flower v. Jackson.........................Floyd v. Barker .........................Ford v. Drew .........................Ford v. Taylor .........................Fordham v. Akers.........................Forlonge, Ex parte.........................Forsdike v. Stone.........................Foster v. Green .........................

Foster v. Pritchard ..............Foster v. Usherwood ..............Foulgar v. Taylor.........................Fowler v. Lee .........................Francis v. Dowdeswell ..............Fraser v. Fothergill ..............Fray v. Blackburn.........................Freeman v. Hegett ..............Friend v. Shaw .........................Fuller v. Alexander ..............Fuller v. Mackav.........................Furber, Ex parte .........................Furness v. Bond .........................

62 69 45

56, 57 62 51 98 34

3630

9, 68,74

51 26

41, 51 21 13 2052 18 18 45

52, 60, 61 75 18

60, 72 31

60, 61 75 13 27 57 35 19 64 56

Gage v. Collins ..............Galloway v. Bleadon ...Galmoy v. Cowan..............Garrard v. Guibilei ...Garton v. Great Western Ry. CGarland, R. v. ..............Gates v. Buckland..............Gay ton v. Bayman..............Gee, Ex parte ..............

605177516364 98 14 72

Cases.

General Horticulture Co., Re ... German Bank of London v.

Schmidt ..........................Gibbon v. Gibbon ... ..............Giblin v. McMullen ..............Giffard v. Unity, etc., Coy. ...Gill v.' Gillbard..............................Glennie v. Delmar ... ..............Gloucestershire Banking Co. v.

Phillips .........................Godden v. Corston..........................Godwin v. Cashion ..............Gold v. Turner .........................Gold Ores, etc., Co. v. Parr ...Gold ring v. Caudwell ..............Goodchap v. Nixon ..............Goodman v. Blake..........................Goodman v. Robinson ..............Qoodwright v. Cordwent..............Gordon v. Gibbons.........................Gordon v. Jennings..........................Gordon v. Murray..........................Gorslett v. Harris ... ... ...Grant v. Royal Exchange Assur

ance Company ..............Great Eastern Ry. Co. v. Giddons Great Gulf Co. v. Sutherland ... Great Northern Ry. Co. v. Mossop

Great Northern Ry. v. Rimell ... Great Western Ry. Co., Ex parteGreen v. Beach ... ..............Green v. Godfrey .........................Greens. Lewis ... ... ...Greenwich County Court Judge

. and Moxon, R. v....................Gregory v. Cotterell ..............Greville v. Smith ..........................Griffin v. Dunn .........................Griffin v. Ross ... ..............Griffith v. Clancey.........................Griffiths v. London and St.

Katherine Docks ..............Grimbly v. Akroyd.........................Groenvelt v. Burwell ... ...Groom v. Rathbone ..............Groves v. Janseens ... ..............Grundy v. Townsend ..............Gunstan v. Maynard ..............Gurney v. Small .........................

76

30, 36 62 52

14, 97 98 20

31 23, 25

38 21 24 63 44 6077 57 62 77 52 20

27 61 62

41, 52, 103

61 63 21 .

6220, 21

521120606061

50 21, 38

13 35 60 21 30

23, 24, 29, 31

Hackett, R. v. ........................Hackett v. Lai or ... .. .Haggin v. Comptoir d’Escompte...

[ Halifax County Court Judge, R. v.I Hall v. Pritchett .........................! Hamilton v. Sefton.........................; Hancocks v. Lablache ..............

Hanmer v. Flight.........................Harden, R. v. .........................Harkness v. Mayor of Mary

borough .........................Harlock v. Ashberry ..............Harper v. Scrimgeour .............Hargreaves v. Diddams ..............Harmer v. Bean ........................Harrington v. Ramsay ..............Harris v. Dreesman ..............Harris v. Judge .............. ...Harris v. Montgomery ..............Harris v. Slater .........................Harrison v. Bottenheim .............Harrison v. Gordon ..............Harrison v. Lascelles .............Harrison v. Painter .............Hartford v. Maher.........................Harvey and Wife, Ex parte ...Harvey v. Shire of St. Arnaud ...

4131201977605134 18

77 98 72 18 41 5 6 60 4823 72 3035 35 6924 7252

XIV. LIST OF OASES.


Harwood, R, v................................. 52, 64 Jacob v. Dawkes ... .............. 52, 60Heaslop v. McGeorge .............. 75 | Jacobs v. Seward ......................... 51Heise v. Dewing ......................... 49 | Jacobson, Ex parte, re Pincoffs ... 42Hemming v. Blanton .............. 61 ! James v. Lynn ......................... 48Hempsted v. Gardner .............. 53 j Jardine?;. Smith ......................... 64Henry v. Kidd .......................... 52 1 Jennings v. London Omnibus Co. 50Hermann v. Seneschall .............. 13 Jensen v. Hagan ......................... 38, 60Hernannan v. Smith .............. 21 | Jervis v. Peel ... ... ... 77Herstmonceaux, R. v. ... 56 Jessop v. Crawley......................... 75Hertford Union v. Kimpton ... 18 ! Jewell, Ex parte ... ... ... 72Hewitson v. Sherwin .............. 72 Johnson v. Diamond .............. 77Heymann, Ex parte .............. 98 ! Johnston v. Cox ... ... ... 43Hibernian J. S. Banking Co. v. ! Joliffe, Ex parte ... .............. 82

McDonnell ... ... ... 24 Jonas v. Long ......................... 60Hickey, Ex parte ......................... 25 | J ones, Ex parte ......................... 48Hill v. Cox..................................... 56 j Jones v. Carter ......................... 57Hill v. Hart-Davjs.......................... 97 1 Jones v. Corker ......................... 27Hill v. Metropolitan Asylums j J ones v. Curling ... ... ... 45

Board..................................... 52 1 Jones v. Ebsworth......................... 61Hill v. Perssee .. .............. 60, 61 Jones ?;. James ......................... 23Hill v. Sidebottom.......................... 23 Jones v. Jones ......................... 38, 41,Hill v. Swift .......................... 18, 38 45Hindley v. Haslam......................... 41 Jones v. Owen ......................... 56Hipgrave v. Case......................... 51 Jones v. Thomas ........................ 56Hirsch v. Coates .......................... 77 J ones v. Thompson... ... ... 77Hobson v. Stoneham .............. 27 Jones v. Williams......................... 75Hoby v. Birch ......................... 35 Jones’ Trustees v. Gittins.............. 52Hodges v. Callaghan .............. 30 Jones v. Whittaker......................... 35Hodgman v. O’Neil .............. 35 Jordan, R. v. ......................... 82Hodgman v. Maxwell .............. 50 Joselyne, Ex parte ... .. ... 78Hoey v. Macfarlane ... ... 0Holborrow v. J ones .............. 64Holden v, Ballantyne .............. 51 Kelly v. Lawrence......................... 11Holmes, R. v. .......................... 21 Kelly v. Shire of Oakleigh ... 27Holmes v. Mountstephen.............. 50 Kelly v. Webster......................... 62Holroyd, R. v. .......................... 48, 50 Kemp r. Balne ......................... 63Holtby v. Hodgson......................... 77 Kemp v. Clark ......................... 21Hopper v. Warburton .............. 18, 38, Kemp v. Derrett ......................... 56

51 Kemp r. Neville ......................... 13, 82Horn v. Thornborough .............. 13 Kendall v. Hamilton .............. 37Hosford, Ex parte.......................... 3o Kennedy v. Neill ......................... 51Houlden v. Smith......................... 13, 82 Kerkin v. Kerkin ... ... ... 56Household Fire Insurance Co. v. j Kerr v. Haynes ......................... 20

Grant ..................................... 21 Kershaw v. Coakley .............. 24How v. London & N.W. Ry. ... 59 Kershaw v. Chantler .............. 51Howard v. Smith......................... 57 Keynsham Lime Co. v. Baker ... 20Howell v. Metropolitan Ry. Co. 76, 79 Kiely v. Massey ......................... 31Howse v. Glowry......................... 97 Kilgariff v. McGrane .............. 23Hubbard v. Goodley ... ... 18 Kilmore r. Abdoolah .............. 45Hudson v. Walker......................... 57, 58 Kimpton v. Willey......................... 18, 38Hughes v. Bury ......................... j 51 Kirchmann v. Yon Snarski ... 31Hume v. Peploe ......................... 92 Kirschmann v. Fitch .............. - 48Hunter, Re..................................... 77 Knight, In re ... .............. 18Hunter v. Greensill.............. ... 77 Knight v. Abbott......................... 23Hunter v. Liddell.......................... 40 Knipe v. Belson ......................... 18Hutchinson v. Norwood.............. 89 Knowlman v. Bluett ... ... 51Huth v. Long ........................ j 21 Koster, Ex parte ......................... 72Hutt v. Shaw .......................... 77 Kurtz Spence .............. ... 51Huxley v. West London, etc., Ry.

Co.............................................. 45Hyam v. Freeman......................... 77 La BancaNazionalev. Hamburger 51Hyde v. Hyde .......................... 97 Lawes v. Price ......................... 89

Le Tailleur v. S.E. Ry.................... 20Laird v. Briggs ... ... ... 51

Imbert Terry v. Carver .............. 23, 29 Lambeth County Court Judge,In re........... ......................... 13 R. v........................................... 82Ironclad, etc., Co. v. Gardner ... 35 Lange v. Burton Brewery Co.,Irvin v. Sanger ......................... 14 Limited ... ... ... 46Irving v. Askew ......................... 41, 80 Landers v. Shiel ......................... 63Isaacs v. Wyld' . .............. 38 Landsell v. Gower......................... 57Ison, Ex parte ......................... 75 Lawes v. Price ......................... 27

Lawford v. Partridge .............. 18, 46Lawrence v. Willcocks .............. 24

Jackson v. Beaumont .............. 21 La wry, Ex parte ......................... 19Jackson v. Grimley......................... 21 Lea v. Parker .......................... 49Jackson v. Kelly ......................... 24 Leader v. Tod-Heatley .............. 23Jackson v. Murphy .............. 34, 35 Leake v. Noble ... .............. 77Jackson v. Nathan .............. 50 Lechmere v. Hawkins .............. 27Jackson v. Spittall......................... 21 Lee v. Andrew ... .............. 60

LIST OF OASES. xv.

Cases. Page. Cases. . Page.

Lefroy, R. v...................................... 82 Meagher v. Pellew.......................... 72Levy, Be ..................................... 97 Mercer v. Stanberg .............. 75Levy v. Bryant ......................... 29, 31 Mersey Steamship Co. v. Shuttle-Levy v. Moylan ......................... 4, 82 worth ..................................... 35Lewis v. Graham ......................... 20 Merton v.. Greene......................... 69Liedman v. Shultz......................... 62 'Metropolitan Ry. Co. v. Jackson,Lilley v. Harvey ......................... 18 Ltd............................................ 52Lilley v. Rigby ......................... 62 Metzner v. Bolton ... .............. 51Linford v. Gudgeon .............. 39, 48, Miles v. Fitzgerald.......................... 30

50 Millar v. Keane .......................... 34Lindsay v. Martin......................... 35 Millard v. Baddeley .............. 33, 35Lister v. Wood ......................... 52 Miller v. Mynn .......................... 77Liverpool Gas Co. v. Everton ... 25 Millington v. Harwood .............. 47Lloyds Banking Co. Ogle ... 35, 36 Mills v. Best ................................ 21Lloyd v. Byrne ......................... 24 Mills v. Scott .......................... 51Lloyd v. Jones ......................... 18 Milner, In re .......................... 18, 64Locke, In re ......................... 14 Mines Royal Society v. Magnay 26Lockhardt v. Dymock .............. 26 Minor v. London & N.W. Ry. ... 20London, etc., Bank v. Clancarty 24 Miskin v. Hutchison .............. 61London Insuiance Co. v. Honey 60, 61 Mitchell v. Hender .............. 20London, etc., Ry. Co. v. Lindsay 39 Mitchell v. Lee .......................... 77London Stock Exchange v. Willis 33 Moody v. Steward.......................... 48, 50Longbottom v. Longbottom ... 19, 63 Moore v. Prest .......................... 87Lopes, Be .......................... 35 Morgan, R. v. .............. 41Lows, Ex parte ......................... 62 Morgan v. Davies.......................... 61, 64Lowther v. Heaver .............. 51, 56 Morgan v. Pike .......................... 51Lucas v. Tarleton......................... 51 ; Morgan v. Rees .......................... 60, 64Ludford v. Rvmill.......................... 31 Morris v. Lowe .......................... 52Lumb v. Teal ......................... 60 Morris v. Salberg......................... 11Lydall v. Martinson .............. 43 Morrish v. Murrey......................... 69Lyon v. Reed ......................... 57 Moscrop v. Jacobs.......................... 48Lyster v. Connolly.......................... 35 Mountnoy v. Collier .............. 18, 62

Mount joy v. Wood .............. 63Mullereisen v. Bannister.............. 50

McAllister v. Allen .............. 30 Murphy vf Conran.......................... 61McCawley v. Campbell .............. 24 Murphy v. Glass ......................... 26McCoy v. Keane ......................... 50 Murray v, Dabb............................... 41, 61McEvoy, Ex parte......................... 18 Mungean v. Wheatley .............. 63McEwan, Ex parte... .............. 10, 41 Murray v. Simpson .............. 77McEwan v. Dynon......................... 92 Murtagh v. Barry ... .............. 52McFee, Ex parte ... .............. 75, 76 Myers v. Barrett .............. ... 51McGillivray v. Simpson.............. 27McHardy v. Liptrott .............. 52, 60McLardy v. Slateum .............. 31 Nantes v. Shire of Towong ... 50McLuskey v. Forsyth .............. 52 Napier v. Paniell ......................... 44

Nash v. Miller .......................... 45Nash v. Pease ... ... ... 77

Macdonald v. Tacquah Co. ... 77 Nathan v. Tozer ... ... ... 60Macdonald v. Tully ............... 39 National Bank v. Silke .............. 24MaeDougall v. Paterson.............. 20 Naumberg v. Albertson’s ExeManchester Building Society, Be 61 cutors ..................................... 56Maudesley v. Maudesley.............. 48 Neale v. Ellis .. .............. 38Maple v. Shrewsbury .............. 36 Neville, Ex parte ... . ... 9Mark v. Pearse .......................... 77 New Callao, Be................................. 61Marks v. Booth .......................... 77 New Westminster Brewery v.Marks v. Pett .......................... 62 Hannah .......................... 51Markwell v. Brown ... ... 29 Newby v. Sharpe.......................... 51Marsh v. Dewes .......................... 18 Newcombe v. De Roos .............. 21Marshall, R. v. ... .............. 13 Newman v. Lever.......................... 34, 35Martin v. Bannister .............. 82 Newry Loan Co. v. Brady ... 35Martin v. Keane .......................... 19 Neighbour v. Brown .............. 19Martin & Co. v. Perkins.............. 24 Nickells v. Atherstone .............. 57Martyn v. Williams .............. 51 Nihil 1 v. Coonan .. .............. 38Marwood v. Waters .............. 56 Nohro, Ex parte .......................... 63Marylebone, R. v. Judge of ... 49 Norburn v. Hilliam .............. 64Mason v. Birkenhead Commis Norman v. Phillips .............. 21

sioners ..................................... 14 Norman v. Marchant .............. 21Mason v. Wirral .......................... 61 Norris v. Carrington ... ... 61Masters v. Barretto .............. 20 North v. Holroyd.......................... 18, 23,Mathews v. Howell .............. 69 38, 51,Mathews v. Munster .............. 62 60Mau v. Weightman .............. 64 Ochse v. Duncan .......................... 31, 35Maughan, Be ... .............. 56 O’Farrell v. Syme.......................... 50Mayer v. Burgess.......................... 60 O’Hara v. Rochford .............. 27Mayor, etc., of London v. Cox ... 64 Oldham Building Co. v. Head !.. 20Mayor of London v. London J.S. Oliver v. Sheppard .............. 48

Bank ... ... .............. 79 Oliver v. Lewis .......................... 60Mayor of Sandhurst v. Sherbon... 52 O’Malley v. Elder.......................... 60Meade v. Mouillot.......................... 24 O’Neill v. Cunningham........... ... 77

xvi. LIST OF CASES.

Cases. Page.

Oriental Bank v. Grant .............. 77Osborne v. Homburg .............. 18Osmaston v. Association of Land

[Financiers .......................... 97O’Toole, Ex parte.......................... 38Outhwaite v. Hudson .............. 52, 60, •

62Owen, R. v........................................ 9Owens v. Emmens.......................... 97Owens v. Woosman.......................... 50

Palmer v. Roberts......................... 50Papayanni v. Coutpas .............. 31Park Gate Co. v. Coates.............. 52, 60,

61Parker v. Brand .......................... 30, 35Parker v. Bristol, etc., Ry. ... 63Parker v. Wood .......................... 37Parpaite Freres v. Dickinson ... 24Parrot v. Mumford......................... 11Parsons v. Alexander .............. 51Partridge v. Elkington .............. 12Pater, In re..................................... 82Patton, R. v. Cahill, Ex parte ... 38Payne v. Kenna .......................... 77Peacock v. Bell .......................... 20Pearce v. Winkworth .............. 21Pears v. Wilson ......................... 19Pearson v. Fane ......................... 35Pearson v. Glazebrook .............. 56Pearson v.. Willcox......................... 97Peace v. Sheriff of Queensland ... 68Pell v. Danberry .......................... 40Penton v. Brown ......................... 69Percival v. Pedley......................... 18Phelan v. Shanks ......................... 24Phelp v. Protheroe......................... 26Phillips v. Harris ... .............. 23Phillips v. Hewston .............. 19Picard v. Hine ......................... 48Pierpoint v. Cartwright .............. 60, 61Pilgrim v. Knatchbull ............. 20Pilley v. Pilley .......................... 49Pilley v. Robinson......................... 37Pincoffs, Re, Ex parte Jacobson ... 42Plumb v. Craker ......................... 45Pole v. Bright ......................... 52, 59Pollard, Ex parte......................... 20Pocock v. Faulkner .............. 31Poole’s Case ... .......................... 69Portuguese Mining Co. (Badman’s

Case), Be ......................... 31Powell v. Gidney ......................... 20Powell v. Guest ......................... 20Pratt v. Hanbury......................... 51Price v. Harwood ... ... ... 11Prior v. Local Board of W. Ham 51Pritchard, Be ......................... 37Pritchard v. Howard Smith and

Sons, Limited.............. ... 21, 17Pritchard v. Nelson .............. 23Prout v. Gregory ......................... 77Pugh v. Heath ......................... 56Purkiss v. Low ........................ 31, 33,

36Q.N. Bank v. Mant .............. 30, 31Quartz Hill, etc.) Mining Co. v.

Beall ..................................... 97Queensland Carriage Co. v. Somer

ville ... .......................... 77Queensport Aquarium Co. v.

Graziers’Butchering Co. ... 18Quinlivan v. Darcy......................... 6

R. v. Bayley..................................... 50R. v. Brompton County Court

J udgfi..................................... 10

Cases. Page.

R. v. Cahill, Ex parte Patton ... 38R. v. Casey ... ......................... 72R. v. Castle..............' .............. 82R. v. Chilton... ......................... 75R. v. Clerk of Surrey C.C. ... 64, 68R. v. Clerkenwell C.C.J................. 94R. v. Cope ............ ; .............. 14, 97R. v. Cope, Ex parte Rawson ... 46R. v. Cope, Ex parte Smillie ... 46R. v. Davis.................................... 10R. v. Dowling ......................... 64R. v. Dunne.................................... 18R. v. Essex County Court Judge... 53, 68R. v. Evans.................................... 82R. v. Fitzroy Cowper ..............R. v. Fletcher .........................

1009, 68,

74R. v. Garland .........................R. v. Greenwich County Court

64

Judge and Moxon .............. 52R. v. Hackett ......................... 41R. v. Halifax County Court Judge 19R. v. Harden ......................... 18R. v. Harwood ......................... 52, 64R. v. Herstmonceaux .............. 56R. v. Holmes ......................... 21R. v. Holroyd ... .............. 48, 50R. v. Jordan... .........................R. v. Lambeth County Court

82

Judge ... ......................... 82R. v. Lefroy ... ......................... 82R. v. Marshall ......................... 13R. v. Marylebone J udge.............. 49R. v. Morgan ......................... 41R. v. Owen.................................... 9R. v. Raines.............. .............. 18R. v. Richards ......................... 18, 64,

R. v. Richmond .........................(O82

R. v. Roberts ......................... 10R. v. Rogers.................................... 21R. v. Rowland ... ;.............R. v. Sheffield County Court

10

Judge .................................... 62R. v. Shropshire County Court

Judge .................................... 12R. v. Staffordshire County Court

Judge .................................... 82R. v. Stapylton .........................R. v. Stephen .........................

64, 75 61

R. v. Stonor.................................... 50R. v. Wake.................................... 9Rackman v. Blowers .............. 60Raines, R. v...................................... 18Rainy v. Bravo .............. ... 51Ramshay, Ex parte......................... 6, 13Randall v. Lithgow .............. 77Rapier v. Young ......................... 77Ratcliffe v. Winch ... .............. 19Raven v. Kesterton .............. 65Rawson, R. v. Cope, Ex parte ... 46Ray v. Barker ......................... 30, 31

35, 36Rayner, Ex parte......................... 41Read v. Brown ......................... 21Ready v. Byrne ......................... 45Real Property Acts, Be The ... 68Reece v. Millar ......................... 18Rees v. Williams ......................... 63Rennie v. Beresford .............. 23Rennie v. Ratcliffe........................ . 21Revis v. Smith ......................... 13Reynold v. Foden......................... 43Rhodes v. Liverpool Com. Inv. Co. 60, 61,

64Rhodes v. Swithenbank .............. 62, 89Richards, R. v................................. 64, 75Richards v. Marten .............. 38Richardson v. Elmit .............. 76

LIST OF OASES, xvii.

Oases. Page. 1 Cases. Page.

Richardson v. Landgridge ... 56 Simmonds v. Henchy .............. 13Richardson v. N.E. Ry. Co. ... 62 Simpson v. Clayton .............. 52Richardson v. Silvester .............. 23, 52 Simpson, Ex parte.......................... 45Richardson v. Wright .............. 64, 75 Sketchley v. Corrigan .............. 31Richmond, R. v................................ 82 Sligo Ry. Co. v. Palmer ... .. 31Riding v. Hawkins......................... 50 Small v. Glen ......................... 52Rippon v. Joyce ......................... 50 Smart v. Hutton ......................... 11Rismondo v. Rismondo .............. 49 Smillie, R. v. Cope, Ex parte ... 46Roberts v. Aizlewood .............. 59 Smith, Re ..................................... 79Roberts v. Death ... .............. 77, 78 Smith v. Edwardes......................... 24Roberts v. Orchard .............. 13 Smith v. Harley ......................... 48Robertson v. Womack .............. 63 Smith v. Hudson ......................... 21Robinson, Ex parte......................... 60 Smith r. Malleson......................... 52Robinson v. Gell ......................... 9, 13, Smith v. Pritchard......................... 11, 82

53, 68 Smith v. Shire of Kyneton ... 52Robinson v. Highett .............. 27 Smith v. Wilson ......................... 24Robinson v. Lawrence .............. 52, 60 Solomon v. London, etc., Ry. Co. 63Robinson v. Lenaghan .............. 25 Solomons v. Mulcahy .............. 13Robinson v. Ralston .............. 29 South N.Z.G.M. Co. v. Bullen ... 18Robinson v. Searson .............. 20 Southern Counties Bank v.Rodda v. Allen ......................... 61, 65 Farquhar ......................... 31Rodway v. Lucas......................... 24, 34 Sparks v. Young ......................... 76Rogers v. Hunt ......................... 23 Sparrow v. Reed ......................... 52Roff v. Miller ......................... 21 Spence, Ex parte ......................... 26, 64Rogers, R. v. ......................... 12, 21 St. Losky v. Green .............. 51Roles v. Davis ......................... 51 St. Nazaire Co., Re .............. 41Rolfe v. Learmouth .............. 20 Staffordshire County Court Judge,Rooney, Ex parte......................... 56 R. v............................... ... 82Roper v. Levy ......................... 54 Stancliffe v. Clarke......................... 50, 51,Rosevear Clay Co., Ex parte ... 21 52Rotheram v. Priest... ............. 33 Stanhope, Re .......................... 78Routledge v. Hi slop ... .. 41, 51 Stanley v. Neill ......................... 48Rowbottom v. Hennelly.............. 60, 74 Stanton v. Styles ......................... 41, 51Rowland, R. v.................................. 10 Stapylton, R. v................................ 64, 75Royal Bank v. Gurtberg.............. 76 Stephen, R. v. ......................... 61Roval Bank v. Hipwood.............. 29 Stephenson v. Weir *.............. 23Rule v. Lobbe .......................... 51, 62 Stevens v. Phelips......................... 77Runnacles v. Mesquita .............. 23, 35 Stevens v. Sampson .............. 44Russell v. Ferguson .............. 77 Stevenson v. Tyler......................... 13Ryan v. Gray ......................... 62 Steward v. North Metrop. TramRyan v. Topham ......................... 31, 52 way Co. ......................... 50, 51Ryley v. Master ......................... 24 Sbewartstown Loan Co. v. Daily 31

Stone v. Deane ......................... 61Stonor, R. v...................................... 50

Sampson v. Seaton Ry. Co. ... 77, 78 Strong v. Stringer......................... 56Sandhurst, Mayor of v. Sherbon... 52 Summers, Ex parte......................... i’GSangster v. Cave ......................... 20 Sunbolf v. Alford......................... 69Sargent v. Wedlake .............. 50 Surrey Justices, R. r....................... 63Saw v. Hakim ......................... 36 Swain v. Ayres ......................... 56Schofield v. Duguid .............. 61 Swan wick v. Ranken .............. 24Scott v. McMullen......................... 30 Sweet v. Lee..................................... 52Scott v. Morley ......................... 31, 72 Sykes Brewery Co. v. Chadwick 31Scott v. Stansfield.............. .. 13, 82 Sykes v. Sacerdoti......................... 35, 36Selm'es v. Judge ......................... 14 Sykes v. Sykes ......................... 50Semayne’s Case ......................... 69 Symons v. Rees ......................... 19Sempill v. Cumming .............. 26, 52Sewell, Ex parte ......................... 34, 35Sewell v. Chetham......................... 21 Taylor v. Crowlands Gas Co. ... 20Seymour v. Coulson .............. 60, 61 Taylor v. J ones ......................... 21Sharrock v. London and North Taylor v. Nicholls......................... 20, 21

Western Ry. Co..................... G4 Taylor v. Port ... ... ... 50Sheba Gold Mining Co. v. Trub* Tapp v. J ones ......................... 77

shawe..................................... 24 Tatam v. Haslar .............. ... 35Sheehan v. Park ......................... 60 Tatum v. Evans ......................... 36Sheffield County Court J udge, R. v. 62 Taylor v. Great Northern Ry. Co. 62Sheils v. Rait .......................... 20 Tennant v. Rawlings .............. 61Shelford v. Louth Ry. Co. ... 30, 33 Tetley v. Griffith ......................... 31Sheppards v. Wilkinson .............. 29, 30 ! Thellusson v. Rendlesham ... 39

35 Thompson, Ex parte .............. 56Shickle v. Lawrence .............. 50 Thompson v. Andrew .............. 60Shiels v. Great Northern Ry. ... 20 Thompson v. Ingham .............. 18Shortall v. Farrell......................... 24 Thompson v. Marshall .............. 30Shreeve v. Charlesworth.............. 14 Thompson v. Rowe ... ... 45Shroeder v. Ward.......................... 62 Thorne v. Seel .......................... 30Shropshire County Court Judge, Thynne v. St. Maur .............. 89

R. v........................................... 12 Tildesley v. Harper .............. 50Shurmur v. Young......................... 29, 30, Timothy v. Farmer .............. 18

36 , Tinkler v. Hilder ... .............. 75Sichel v. Borch ......................... 21 ! Tinniswood v. Pattison .............. 18

I

xviii. LIST OF CASES.


Tinsley v. Cook .. .............. 61 West Devon Great Consols Mine,Tobin v. Connolly.......................... 36 Re .................................... 62Tompkins v. Beard .............. 48 Weatherley v. Calder .............. 20Trafford v. Blanc.......................... 50 Webb v. Stenton ......................... 76, 77Trench v. Mulcahy.......................... 31, 34 Wedlake v. Sargent .............. 23Trevor v. Wilkinson .............. 21 Welply v. Buhl ......................... 50Trufort, In re .......................... 50 Western N. Bank of New York v.Tummons v. Ogle.......................... 18 Perez.................................... 30Turnbull v. Forman .............. 30 Whalley v. McConnell .............. 11Turnbull v. Robertson .............. 79 Wharton v. Tuohy .............. 52Turner v. Barry .......................... 18 Whelan v. Hannigan .............. 61Turner v. G.W^. Ry. Co.................. 60 Whelan v. Kelly ......................... 23Turner v. Nicholson .............. 18 White v. Morris ......................... 13

White v. Ross ......................... 60Whitehead v. Procter .............. 75

Underdown v. Stannard.............. 97 Whiting v. Bassett......................... 97Union Bank of Australia v. Thorpe 78 Whiting v. Bennett .............. 18United Founders Trust v. Fitz- Wickham v. Lee ......................... 18, 38

george.............. .#............. 30 Wilberforce v. Sowton .............. 61Upmann v. Forester .............. 45 Wilkin v. Reed ......................... 51

Wilkins v. Leeds Co....................... 52, 60Wilkinson v. Whalley .............. 52

Vallentin v. Woodley .............. 60 Wilks v. Wood ......................... 24Vaughan v. Weldon .............. 21 Willcock v. Terrell......................... 7, 77Verlander v. Eddolls .............. 14 Williams v. Evans........................ 60Vinall v. de Pass .......................... 76 Williams v. Waring .............. 20Vines v. Arnold .......................... 38 Williams v. Williams .............. 60Von Lederer v. Burton .............. 23 Williamson v. Bissill .............. 57Vyse v. Brown .......................... 77 Wilts Iron Co., Re......................... 21

Winch v. Winch ......................... 19Winfield v. Boothroyd .............. 99

Wagstaff v. Jacobwitz .............. 31 Winn v. Ingleby ......................... 69Wake, R. v........................................ 9 Wirth v. Austin ......................... 21Wakley v. Froggatt .............. 26 Wise v. Birkenshaw .............. 77Wakefield v. Gall.......................... 39 Wodehouse v. Farebrother ... 26Wakelin v. Morris......................... 45 Wood v. Finnis ......................... 11Walesby v. Goulston .............. 18 Wood v. Perry ......................... 21, 38Walker v. Gann ......................... 63 Wood v. Wood ......................... 69Walker v. Graham.......................... 60 Woodhams v. Newman .............. 18Walker v. Hicks .......................... 24 Woollen v. Wright......................... 11Wallace v. Allan .......................... 21 Wooley, Ex parte......................... 56Wallingford v. Mutual Society ... 30, 33 Woolston v. Baynes .............. 30Walsh v. lonides .......................... 20 Worthington v. Jeffries .............. 64Walsh v. Lonsdale .............. 56 Wright v. Commissioner of RailWalters v. Coghlan .............. 61 ways ..................................... 62Ward v, Plumbley .............. 29, 30,op. Wyse v. Heggarty......................... 19

Ward v. Proctor .........................Ot)36

Ward v. Raw .......................... 60, 61 Yeatman v. Snow......................... 23Wardens of St. Saviours v. Gery 31 Yeomans, Ex parte......................... 18Warder v. Saunders .............. 37 Yorke-r. Smith .......................... 60Warner v. Mosses ... .............. 97 Yorkshire Banking Co. v, Beatson 30, 36Waters v. Handley .............. 25 Young v. Brompton WaterworksWaterton v. Baker .............. 61 | Co.............................................. 102Watson v. Ambergate Ry. Co. ... 60 j Young v.-Iguana G.Mi Co. ... 48Watson v. Bod ell ......................... 13, 82Watson v. Fraser ......................... 97Watson v. Issell ......................... 61 Zahel r. Buchan ......................... 24Watson v. McCan......................... 49 Zimmler v. Manning .............. 27Waxman v. McAuliffe .............. 38, 52, Zoedone Co. v. Barrett .............. 35

60 Zohrab v. Smith .......................... 25

LIST OF STATUTES REFERRED TO.— Page. — Page.

8 Geo. IV. c. 5, s. 10 .............. 67 Order XVI., r. 3 ... 935 Wm. IV. No. 1, s. 19.............. 67 „ „ 5 ... 937 Wm. IV. & 1 Vic. c. 88, s. 2 ... 15 „ „ 10a ... 942 Vic. No. 2, s. .61 .............. 67 „ XXXVI., r. M 984 Vic. No. 17, ss. 37, 38 .............. 67 „ 3/ 985 Vic. No. 19, s. 4 .............. 67 „ » 3g 988 Vic. No. 2, s. 8 .............. 18 • „ „ 3o 989 & 10 Vic. c. 95, s. 121.............. 67 „ XLIV. ... 76

13 Vic. No. 36, s. 28 .............. 67 „ ,, r. 2... 7614 Vic. No. 4, s. 10 ............... 67 „ „ 3... 7814 Vic. No. 40, s. 17 .............. 67 „ „ 4 ... 7815 Vic. No. 4, ss. 10, 14 .............. 67 „ „ 5... 7816 Vic. No. 44, s. 8 .............. 67 ,, „ 6... 7817 & 18 Vic. c. 104, s. 233 ... 77 „ „ 7... 7919 & 20 Vic. c. 108, s. 67.............. 18 „ „ 8... 7925 Vic. No. 11, s. 21 .............. 67 „ XL Villa. ... 9425 Vic. No. 14 .......................... 69 40 Vic. No. 13, s. 19 .............. 10327 Vic. No. 4 .......................... 18 „ „ 29 .............. 6727 Vic. No. 6, s. 7.......................... 67 41 Vic. No. 3, ss. 188, 189.............. 6727 Vic. No. 8, ss. 140, 141.............. 67 j 41 Vic. No. 4, s. 2 ... .............. 6727 Vic. No. 11, s. 9 .............. 3, 4 41 Vic. No. 7, s. 8......................... 66

„ „ 28 .............. 67 41 Vic. No. 18, s. 35, Schedule U 6927 Vic. No. 22, ss. 39, 40, 52 ... 67 43 Vic. No. 7, ss. 2, 7 to 9 ... 17, 3928 Vic. No. 7, s. 20 .............. 67 43 Vic. No. 8, s. 2 .............. 6829 Vic. No. 5, s. 71 .............. 67 45 Vic. No. 2, s. 15 ... ... 6729 Vic. No. 6, s. 44 ... ... 15 45 Vic. No. 5, s. 2 .............. 4

„ „ 115 .............. 67 45 Vic. No. 13, s. 29 ... ... 66„ „ 117 .............. 9 46 Vic. No. 8, ss. 29 to 39.............. 66

29 Vic. No. 9, s. 5......................... 66 „ „ 36 .............. 1729 Vic. No. 11, ss. 1, 46 .............. 15 „ „ 37 .............. 6629 Vic. No. 18, s. 10 ... ... 17 46 Vic. No. 10, s. 76 .............. 6630 Vic. No. 14, s. 47 .............. 66 48 Vic. No. 5, s. 2......................... 1231 Vic. No. 12, s. 2 .............. 4 48 Vic. No. 8. s. 172 .............. 6631 Vic. No. 16 .......................... . 19 48 Vic. No. 10, ss. 9(3), 58 ... 24

,, ,, Schedule III. ... 88 48 Vic. No. 17, ss. 83, 135.............. 1731 Vic. No. 22 ......................... 27, 92 „ „ 142 .............. 6631 Vic. No. 23, s. 33 .................. 4 48 Vic. No. 28, s. 128 .............. 6631 Vic. No. 29 .......................... 3 49 Vic. No. 8, s. 19 ... ... 66

„ ,, s. 15 .............. 17 49 Vic. No. 13, s. 11 .............. 5, 17», „ 34 .............. 66 „ „ 126 .............. 66

31 Vic. No. 33, s. 16 .............. 67 49 Vic. No. 18, s. 49 .............. 6631 Vic. No. 34, s. 14 .............. 8 50 Vic. No. 14 ......................... 1537 Vic. No. 1, s. 249 .............. 59 50 Vic. No. 17 ......................... 2

,, ,, 250 .............. 66 ,, „ s. 138 .............. 15„ „ 266 fco 268 ... 17 ,, ,, 237 et seq. ... 66

37 Vic. No. 3, ss. 88 to 90.............. 21 50 Vic. No. 19, s. 14 .............. 6637 Vic. No. 5, ss. 1 and 4.............. 4 50 Vic. No. 24, s. 10 ... ... 1738 Vic. No. 2, s. 4......................... . 66 50 Vic. No. 25, s. 33 ... ... 6638 Vic. No. 3, s. 14......................... 39 50 Vic. No. 29, s. 28 .............. 6638 Vic. No. 5, ss. 4,9 to 13,15,185 17 50 Vic. No. 30, s, 26 .............. 66

„ „ 15 .............. 59 51 Vic. No. 7, ss. 153, 159 ... 66,, „ 76 .............. 72 „ „ 281 .............. 17„ „ 185 .............. 4 52 Vic. No. 4, s. 2 .............. 15„ „ 220 .............. 15 52 Vic. No. 8, s. 45 ............. 17

38 Vic. No. 11, s. 39 .............. 9, 86 53 Vic. No. 1 .............. 77„ „ 59 .............. 18 53 Vic. No. 7, s. 27 .............. 18„ „ 71 to 81 ... 66 53 Vic. No. 10, s. 1 .............. 4

„ 82 .............. 18 53 Vic. No. 12, s. 11 .............. 13,, „ 83 .............. 17 „ 22 .............. 27

40 Vic. No. 6, App. G 8.............. 63 53 Vic. No. 17 ......................... 32Order III., r. 6 ... 23 53 Vic. No. 18, ss. 44 to 46 ... 18

„ XIII., r. 3... 28 „ „ 48 .............. 80„ „ 4... 29 53 & 54 Vic. c. 27, s. 3 .............. 18„ XIV., r. la 29 54 Vic. No. 9 ......................... 5, 6„ „ 2... 31 ,, ,, s. 21......................... 18, 103„ „ 3... 33 54 & 55 Vic. c. 31, s. 7 .............. 67„ „ 4... 34 55 Vic. No. 11, s. 63 .............. 67,, » 7... 34 55 Vic. No. 22, s. 7 .............. 14,18,98„ XVI., r. 1... 93 55 Vic. No. 37, s. 12 .............. 4

TABULAR ANALYSISOF

THE ENGLISH COUNTY COURTS ACTWITH REFERENCES TO THE DISTRICT COURTS ACT, 1891.

English Statute. Queensland Statute. Page.

& 52 Vic. c. 43, s. 1 55 Vic. No. 33, s. 1 ... 1J) ‘ tt 2 ... it it 2 ... ... 1it a 3 it a 4 ... 3It a 4 ... it it 6 ... ... 3a a 5 ... it „ 7 ... 4if a 8 ... it it 9,15... 4, 5a ,, 9 JJ t* . 11 ... 4a a 10 }J it 12 ... ... 5if a 12 ... it it 21 ... 6a a 13 ... it a 10 ... 4„ tt 14 it tt 15 ... ... 5a n 15 ... a tt 17 ... ... 6ft a 18 . •. it „ 19 ... 6if if 19 ... it >3 20 ... 6if tt 22 ... it >3 101 ... 39tf it 23 it it 16,18... ... 5, 6ft ft 24 a it 22 ... 7ft it 25 tt it 31 ... 9ft tt 26 it it 32 ... 9a tt 28 ... a it 34 ... 10a a 29 it tt 31 ... 9a if 31 ... tt tt 35 ... 10ft . ft 33 tt tt 36 ... 10tf ft 34 tt it 37 ... 11„ ft 35 a it 38 ... 11if tf 40 a it 43 ... 11ft tt 41 a 33 42 ... ... 12a it 44 tt it 40 ... 11it ft 45 tt it 31 ... 9ft ft 46 ... it a 40 ... 11,, ,, 49 a a 4L ... 12a it 50 It it 44, 196 13, 81ft a 51 a it 44, 196 13, 81if it 53 tt 46 ... .,, 14ft it 54 a „ 46 ... 14if tt 55 ... a it 45 ... 13it ,, 56 tt it 56 ... 17

if 57 tt 56 ... ... 17it ft 58 ... a tt 57 ... ... 19

a 59 ... tt a 59 ... ... 19tf it 60 it a 56 ... 17ft tt 61 it a 56 ... 17ft ft 63 ,, 160 ... ... 68ft it 64 a a 61 ... . •. 21

it 65 tt tt 129,130 ... 47, 49ft a 66 tt a 129,130 47, 49ft tt 67 it ti 58 ... 25a 11 69 ... tt „ 129, 130 47, 49ft it 72 a j» 48 ... . • • 14a tt 73 ... it it 62 ... ... 22a it 74 a a 60 ... 19a ft 78 )' „ 66 ... 25it it 79 it a L08 ... 42it it 80 It it 118 ... 45fi it 81 it it 99,100 38a it 82 a tt 71 ... 26it a 83 33 it 119 ... 45n ,, 85 it it 101 ... 39if a 86 it it 67 ... 25it tt 87 it it 131 ... ! 50

XXII. TABULAR ANALYSIS.

English Statute. Queensland Statute. Page.

51 & 52 Vic. c. 43, s . 88 55 Yic. No. 33, s. 109 ............... 42JJ )) 90 „ no ............... 42

91 ,, „ no ............... 4293 55 „ 132 ............... 5194 55 „ 94 ............... 3795 „ 96 ............... 3796 „ 97 ............... 3797 „ 95 ............... 37

55 55 98 5J ., 73 ... 2799 „ 74 ............... 28

55 55 100 55 „ 106 ............... 41101 „ 113, 114 ... 43, 44

55 5 5 102 55 „ 23, 30,115,116 7, 9, 44104 „ 134 ............... 53105 „ 133 ... ... 53106 ... „ 112 ............... 43

5 5 5 5 107 „ 72 ............... 27no 55 „ 102 ............... 39

5 5 5 5 111 „ 103 ............... 395 5 5 5 113 „ 120 ............... 45

114 „ 124 ............... 46116 126, 127 ... 46, 47

5 5 5 5 118 !„ 121, 125 ... 45, 46

*5 55 120 „ 144 ............... 59121 „ 145, 146 ... 61, 62

5 5 5 5 122 „ 147 ............... 625 5 5 5 123 3 „ 148 ............... 625 5 5 5 124 „ 149 ............... 62V 55 126 „ 150 ................................ 635 5 5 5 128 ,5 152 ............................... 645, 5, 129 ... „ 153 ................................ 655 5 5 5 130 „ 154 ............................... 65

,, 13 L „ „ 151 ............................... 635 5 5 5 138 55 „ 137, 138 ... i 55, 57

55 139 ,, „ 139 ............................... 575’ 5' 140 „ 140 ................................ 58

55 141 55 „ 141 ............................... 58*• 55 142 „ 142 ............................... 589 ? J 143 „ 143 ................................ 59

146 }) „ 161, 174 ... 68, 735? 147 „ 166, 174 ... 69, 73

148 55 „ 167 ............... 69149 5, 176 ............................... 73

95 99 150 „ 179 ............... 74? J ?9 152 „ 175 ............... 73?> T 99 153 177 ............... 749 9 99 154 ' ■„ 168 ... ... 70-99 9 9 155 „ 178 ...............! 1 7499 99 157 ... j ,} „ 180 ............... 7599 99 158 , „ 173 ............... 7299 9 9 159 55 5, 39 ............... 1199 9 9 160 „ 169 ... ... 709 9 99 161 V ,. 170 ............... 7199 99 162 55 „ 198 ............... 82

163”

„ 172 ............... 729 9 9 9 164 „ 191 ............... 79

’ 99 9 9 165 „ 192, 193 ... 8099 99 166 55 192 ............... 80

16a 55 ., 194 ................................ 8199 ”,

169 „ 32 ............... 999 99 170 55 „ 32 ............... 9

171 55 „ 32 ............... 99 9 9 9 173 55 „ 195 ............... 8199 ' 99 175 55 „ 47 ................................ 149 9 99 180 55 „ 8, 197 ... 4, 8199 99 186 55 „ 3 ................................ 29 9 99 188 55 ,, 4 ... ... 3

INTRODUCTION

- Preliminary.“ The District Courts Act, 1891 ” (55 Vic. No. 33) is a consoli

dation of various statutes relating to the District Court, that is to say, 31 Yic. No. 30, 36 Yic. No. 11, and 42 Yic. No. 9, which are thereby repealed (s. 4). So far as it relates to the civil jurisdiction of the Court, the Act is analogous to the Imperial County Courts Act, 1888 (51 and 52 Yic. c. 43), to the Victorian County Court Act, 1890, and the New South Wales District Court Acts.

The function of the District Court is to administer justice, in the locality where it is required, speedily, effectively, and cheaply, and for this purpose various improvements on the old law have been enacted, and the jurisdiction has been enlarged in certain directions to meet-the changed requirements of the Colony. Thus Judges are assigned to certain towns, but the commission of each Judge holds good throughout the Colony (s. 10); considerable power is conferred on the Crown Law Officer (for definition see s. 3) in directing the holding of the Courts (ss. 12, 20, 21); new provisions are made for obtaining speedy judgment (ss. 64 and 77), and for the attachment of the goods of a defendant (s. 136). The statutory jurisdiction of the Court is expressly preserved (s. 5), and its criminal jurisdiction is extended to all offences except those of the gravest character (ss. 49, 50).

The Act commenced on the 1st of January, 1892 (s. 2), and the rules promulgated thereunder iu pursuance of s. 191, on the 17th of July, 1892. The interpretation clause (s. 3) defines the terms of most frequent occurrence in the Act, and these definitions are to be applied in construing the rules, unless there is something in the context of the rules themselves inconsistent therewith (r. 2). The tern*s “ district,” and “ Court,” in s. 3 are amplified by r. 2 into “ home ” and “ foreign,” districts, and Courts respectively, to meet cases where process is issued from one Court to another.

The Court and its Officers.Court.—The Governor in Council may order Courts, to be called

District Courts, to be held in specified places, may alter the place for holding the Court, or order the holding of a Court to be discontinued, and all proceedings and records to be transferred to another Court (s. 6).

He may assign to the Court a district to consist of a Petty Sessions District appointed under “ The Justices Act of 1886,” or of two or more contiguous Petty Sessions Districts (s. 6). Every

XXIV. INTRODUCTION.

District Court is a Court of record, with both civil and criminal jurisdiction (s. 7) ; and has a seal with which all process is to be sealed (s. 8). The District Court Judges have power to make rules subject to the approval of the Judges of the Supreme Court; where such rules are silent, the practice of the Supreme Court is to he adopted (s. 191). Power is given to punish for forging the Court seal or serving a forged or false copy of its process (s. 197), and to commit for contempt (s. 198). .

Officers.—These may he considered under the following heads :— (i.) Judge; (ii.) Registrar; (iii.) Bailiff.

(i.) Judge.—Judges are appointed hy the Governor in Council. They are to he chosen from barristers or solicitors of at least five years standing, and must have been in practice or held judicial or legal office under the Crown within two years immediately preceding their appointment (s. 9). The Governor in Council may assign to a Judge, either permanently or iu rotation with other Judges, such Courts as he thinks fit; but the jurisdiction of a Judge is not limited to the Courts so assigned to him (s. 10) ; and every Judge may act as Judge of any District Court in the Colony (s. 11). A Judge is to hold the Court at the places appointed, and at times approved of by the Crown Law Officer, within limits prescribed by the Governor in Council. Notice is to be given of the time appointed for the sittings of the Court, and if the Court cannot be then held, the Registrar, or, in his absence, the Bailiff is to adjourn the Court to a convenient date (s. 12).

A Judge is not to practise, directly or indirectly, or sit in Parliament (s< 15) ; he holds office during ability and good behaviour, and receives an annual salary of £1,000, exclusive of travelling expenses (s. 16), which are limited to the purpose of attending the Courts assigned to him under the Act (s. 18).

A Judge may be removed by the Governor in Council for inability or misbehaviour, but he is to have notice of the intention to remove him, at least twenty-one days before removal, and is to have an opportunity of being heard in his defence, before the Governor in Council (s. 17). A deputy Judge may be appointed with all the powers and privileges of a Judge, for the time being, to perform the duties of a Judge who is ill or absent (s. 19). One Judge may sit for and perform the duties of another at the request, in writing, of the Judge or the Crown Law Officer (s. 20). Two Judges may, upon the request, in writing, of the Crown Law Officer, sit concurrently for the more speedy disposal of business (s. 21). A Judge may be called upon to retire when permanently disabled, and if at the time of such retirement he has held office for fifteen years, he shall be entitled to a pension equal to one-half of his salary (s. 22). The number of Judges is limited to three, until otherwise provided by Act of Parliament (s. 9).

INTRODUCTION. XXV.

The Judge is to be the sole judge in all actions, and is to determine all questions of law, and where there is no jury, all questions of fact (s. 106). A Judge has general powers of amendment in any defect or error in Civil proceedings (s. 131). .

(ii.) Registrar.—There is to be a Registrar appointed by the Governor in Council, and paid by salary, for every Court. In populous places two may be appointed (s. 31). When the Clerk of Petty Sessions is appointed Registrar, his successor or deputy is Registrar for the time being (s. 35). The Registrar must (a) sign and issue summonses and warrants, (b) keep minutes of the proceedings of the Court; (c) take charge of and keep an account of the fees and fines payable and paid into Court, and of moneys paid into and out of Court; (d) submit his accounts to the Auditor- General when required (s. 32) ; (e) act as Deputy-Sheriff under“ The Jury Act of 1867,’* when necessary (s. 33); (/*) keep a note of the plaints and summonses, of judgments and executions, and returns thereto, and of fines and proceedings, in a book belonging to the Court (s. 34) ; (g) give security for the due performance of his office; (Ji) keep an office at each place where the Court is held, open at such times as the Judge shall appoint (r. 3) ; (i) keep the books in prescribed form, and number all entries therein according to the plaint (r. 4) ; (j) act in court and sign theminute-book (r. 5) ; (/c) sign and issue all summonses and warrants immediately after the entry of a plaint or application for a warrant (r. 6) ; (Z) where service of a summons is required in a foreign district, transmit the same and a copy to the Bailiff of the foreign district, with a covering letter, and if the summons is returned to him, not served, give notice of that fact to the plaintiff (r. 7) ; (m) in any such case require a sufficient deposit by the plaintiff of «a sum of money to defray expenses (r. 8) ; (n) annex a copy of particulars to a summons, sealed with the seal of the Court, and deliver to the Bailiff a copy of the summons for endorsement (r. 9) ; (o) permit searches to be made, and pay out money to suitors on demand during office hours; (p) give a written acknowledgment for money paid into or deposited in Court (r. 11) ; ( q) frame forms when required (r. 14) j (r) on receiving an order for mittimus, apply to the Judge to fix a date for hearing the action (r. 15) ; ($) enter such action on the minute- book, and giye notice to the parties (r. 16) ; (t) in the home Court prepare orders for payment of money or costs and orders of adjournment when required for service, and deliver them to the Bailiff (r. 17) ; (w) in a foreign Court where a warrant is to be executed in his district, immediately on receiving it enter it in a book called the Eoreign Execution Re-issued book (r. 18) ; (v) cancel stamps on a document before it is sealed, filed, or delivered out (r. 19).

iii. Bailiff*.—Every Court is to have at least one Bailiff, who is to be appointed by the Governor in Council, but maybe suspended by

XXVI. INTRODUCTION.

a Judge. The Bailiff may appoint assistants and dismiss them, or they may be suspended by the Judge, or suspended and dismissed by a Crown Law Officer. He is responsible for the acts of his officers (s. 36), who may continue to act after the death or removal of the Bailiff, with the same remuneration (s. 37). Bailiffs are to attend the Court, if required, serve summonses, execute warrants, and conform to the Buies of Court and the orders of the Judge in the execution of their duties (s. 38). A Bailiff may sell land or goods without taking out an auctioneer’s license (s. 39). He is to receive a salary as well as fees mentioned in Schedule iv., unless the Judge otherwise orders. Out of such fees he is to provide for the performance of the duties and for the payment of his assistants (s. 40). He is answerable for escape and neglect to levy execution (s. 41) ; must give security (s. 43) . keep books and make returns in proper form (r. 20) ; attend personally or by deputy at the registrar’s office to receive summonses and compare the copy with the original, as well as perform any other duty (r. 2L); where the service is personal, endorse the fact and mode of service on the copy summons ; where not personal, endorse thereon the statement made by the person to whom the summons was delivered, or other circumstances showing defendant’s knowledge of it; if not served, the reason of non-service (r. 22) ; transmit a copy of the summons served in a foreign district with an affidavit to the home district (r. 23) ; deliver to the Begistrar four days before the holding of the Court a list of summonses or plaints issued to him, and state whether served or not, and verify by affidavit his statements (r. 24); notify a plaintiff of non-service of the summons (r. 26) ; enter in Order-book all orders for the j>ayment of money or costs and the date on which he forwarded them (r. 27) ; enter in Warrant-book every warrant and give reasonable information to suitor as to its execution (r. 28) ; pay money recovered by levy to the Begistrar (r. 29) ; in foreign district where warrant has not been executed within given time, return it to Begistrar of home Court, with reasons for nonexecution (r. 30) ; where he has executed it, transmit the proceeds to the Bailiff of the home Court (r. 31):........................... .

General IJrovisio?is relating to Officers.—Officers, their servants and agents, are precluded from acting in any capacity other than that for which they are appointed, and are not to intermeddle in, or be in any way concerned in actions (s. 42, and rr. 12, 13). If they are guilty of either of these offences, or of extortion or other misconduct, they are liable to heavy penalties (ss. 42, 44). The offence of misappropriation of moneys, &c., is a felony (s. 196), and so also is the forgery of the seal, or the serving or enforcing of a forged process (s. 197). An indemnity is granted to a person acting under the Act, and the production of the warrant under the seal of the Court is to be deemed sufficient proof of his authority previous to the issuing of the warrant; in case the plaintiff does not succeed, the defendant

INTRODUCTION. xxvii.

is to have full costs (s. 45). All actions or prosecutions must be commenced within six months after the act committed or omitted, and the defendant is to have one month’s notice before the commencement of the action, and may tender a sum as amends (s. 46).

Jurors.—The qualification for a juror in the District Court is the same as that in the Supreme Court under the provisions of “ The Jury Act of 1867.” In an assize or circuit town the jury books made out by the Sheriff are to be the jury books for the District Court; in other cases, jury lists are to be prepared as by that Act provided, and are then to be transmitted by the Clerk of Petty Sessions to the Judge, who shall in that behalf act as Sheriff (s. 23). If no provision has been made for a jury list in a newly proclaimed district, the justices may be directed within three months to prepare the lists and forward the same to the Judge (s. 24). The Judge is to cause a jury- book to be made out within ten days after the receipt of the jury lists, and the lists are to continue in force until new lists are allowed, and a new jury-book made out under the provisions of this Act (s. 25). Subject to what has been said, the constituting, procuring, summoning, challenging, and discharge of jurors is to be the same as under “ The Jury Act of 1867 ” (s. 26). A Judge of the District Court has the same power to issue a precept for summoning common and special jurors as a Judge of the Supreme Court (s. 27). A Judge may inflict fines for the non-attendance of jurors (s. 28). For the trial of an

. action, the jury is to be chosen from the special jurors, unless the Judge otherwise orders (s. 29). A juror is entitled to the same payment for attendance as in the Supreme Court (s. 30).

Crimes are to be tried by a jury of twelve common jurors chosen, Ac., as on a trial of criminal issues in the Supreme Court (s. 54).

Any party or a Judge may require a jury to be summoned in any of the following cases (s. 113):—

. (1) In an action or matter in which the sum sued for exceeds£20.

(2) In an action for the recovery of possession of land of which the value or rent exceeds £20 by the year.

(3) In an action of replevin in which the amount of rent in respect of which the distress was or might have been made exceeds £20.

(4) In proceedings in interpleader in which the amount claimed or the value of the goods in question exceeds £20.

In all these cases the jury is to be summoned after the party requiring a jury has given notice to the Registrar (r. 127), who is to communicate with the opposite party (s. 113). The party requiring the jury is at the time of giving notice to pay to the Registrar £2, which is to be considered costs in the action or proceeding unless the

xxviii. INTRODUCTION.

Judge otherwise orders. When a Judge requires a jury the sum is to he paid by the unsuccessful party (s. 114). When a jury is required in Civil proceedings, the Registrar is to summon not less than eight nor more than twelve jurors (s. 115). The jury is to consist of four men, chosen by ballot, and they are to swear to give a true verdict, according to the evidence (s. 115). In case of a deficiency, the Judge may nominate a sufficient number from the bystanders, who are liable to a penalty if they refuse to act without good excuse (s. 116.)

Barristers, Solicitors, and Agents.—Solicitors and others have no privilege to exempt themselves from the provisions of the Act (s. 47). Appearance may be by the party, or by a barrister or solicitor ; nevertheless, any person may, by special leave of the Judge, appear for a party, but he is not entitled to recover remuneration for his services (s. 48). No attorney is allowed to appear for any person in the District Court until he has been admitted to practise in the Supreme Court of Queensland (r. 123). An attorney is not allowed to become a surety for a party (r. 13).

Jurisdiction.Criminal Jurisdiction.—The criminal jurisdiction of the Court

has been largely extended, and all felonies, misdemeanours, and offences, wdieresoever committed, may be tried there (s. 49), with the following exceptions :—(1) Treason, (2) misprision of treason, (3) a felony punishable by death—e.g., murder, rape, piracy when murder* attempted, robbery with violence; (4) a felony which, when committed by a person not previously convicted of felony, is punishable by penal servitude for life under the Offences Against the Person Act—e.g., manslaughter, attempts to murder, and many offences causing or tending to cause danger to life or bodily harm ; (5) offences against the Queen’s title, prerogative person, or Government, or against Parliament, (6) offences subject to the penalties of praemunire, (7) stealing, or fraudulently taking, injuring, or destroying records or document's belonging to the Supreme Court, or relating to any proceeding therein, (8) stealing, or fraudulently destroying or concealing wills or testamentary papers, or any document or written instrument bearing or containing evidence of the title to land, or of an interest in land (s. 50). The object of subsection 8 is presumably to preclude the Court from trying any question involving title to land, and is in aid of s. 56.

But power is reserved to the Governor in Council by s. 51 to withdraw from a Court its criminal jurisdiction, either absolutely or for a limited time. It is conceived that this is enacted to meet the case of difficulties arising in the administration of justice in a disturbed district, or where the verdicts of jurors are found, by experience, to be manifestly corrupt.

INTRODUCTION. xxix.

Civil Jurisdiction.—The Court has jurisdiction in all personal actions in which the amount claimed does not exceed £200, but not in any case in which the title to land, or the validity of a devise, bequest, or limitation under a will or settlement is in question. If the title to land incidentally comes in question, the Court has power to decide the claim, which is the immediate object of the action, but the judgment is not evidence of title in another action or Court (s. 56). The Court also has jurisdiction in certain cases of partnership, intestacy, or a legacy, in which the amount sought to be recovered does not exceed £200 (s. 57). Equitable claims for debt or damages up to £200 may be recovered in the District Court (s. 58). In actions of replevin, in which the rent for which the distress is or might have been made does not exceed £100, the Court has jurisdiction (s. 59) ; but in these actions no other cause of action is to be joined in the summons (r. 32).

Every District Court has jurisdiction throughout the wh Queensland (s. 60), but a defendant is not bound to appear,;(1) at the Court of the district within which the defendant, or on or more defendants, resides or carries on business ; or (2) at th6\ of the district within which the cause of action or claim, either ' or in some material point, arose; or (8) at the Court of the dis within which by an engagement or promise in writing given by the* defendant a debt or sum of money is made payable. It will be noticed that these provisions are in the alternative. Corporations and joint stock companies which have an office or place of business at which they carry on business in Queensland are amenable to the jurisdiction, whether constituted under the laws of Queensland or not. If both parties agree that any specified District Court shall have jurisdiction to try any action which might be brought in the Supreme Court, the District Court shall have jurisdiction to try the action. Such consent must be in writing, and be filed with the Begistrar at the time of the entry of the plaint (s. 61). The action thereupon proceeds as other actions in the Court (r. 34).

Criminal Procedure.When the accused is committed for trial to a Court other than

the Court for the district in which the offence is alleged to have been committed, a Judge of the Supreme or District Court or a Crown Law Officer may order him to be tried in the latter district.

In other cases a Judge of the Supreme or District Court may change the venue, and a Judge of the District Court has the power at any stage of a trial to order it to take place at another Court, subject to such conditions as he thinks fit. Eor the purpose of this section the Judge or Crown Law Officer may make all necessary orders as to remand, custody, recognisances, bail, etc. (s. 52).

XXX. INTRODUCTION.

Criminal proceedings in the District Court are by information in the name of a Crown Law Officer, or Cro^yn Prosecutor, appointed by the Governor in Council; and he performs the duties of a grand jury, and may enter a nolle prosequi. Issues of law are determined by the Judge (and, in error, by the Supreme Court), and issues of fact are tried before a Judge and jury of twelve men (s. 53).

The Begistrar may issue subpoenas for the attendance of witnesses, and a person disobeying the same is liable to a fine not exceeding £50, or he may be arrested under warrant (ss. 55, 103, 104).

Civil Procedure.Plaint, Summons, Service.—An action is commenced by a plaint,

which is to contain the names and last known places of residence of the parties and the substance of the action intended to be brought (s. 62). It is to be entered in the Plaint-book twenty-one clear days before the return day of the summons, except in the Brisbane district, where the time is twelve clear days. But this rule does not apply to judgment summonses (r. 35). Upon the entry of the plaint a summons is issued by the Begistrar and served on the defendant (s. 62). Misnomer or inaccurate or defective description of a person or place does not necessarily vitiate a plaint or summons, provided that the description is reasonably sufficient to identify the person or place (s. 62, r. 36). The particulars of demand, abandonment of excess, or admission of set-off (if any) are to be filed with the plaint, and served with the summons on all the defendants, and are to be deemed a part of the summons (r. 38). The Begistrar gives the plaintiff a note of the fact of the entry of the plaint, which note must be produced before payment of money out of court (r, 39). Where the claim is equitable the plaint is to state it (s. 63).

Summonses are to bear date of the day of entry of the plaint, which is the commencement of the action (r. 40). Successive summonses may, except in certain specified cases, be issued on the same plaint when the summons has not been served, provided the plaint has not been entered more than six months (r. 41). Successive summonses maybe issued, without leave, for the purpose of preventing the operation of the Statute of Limitations, to continue in force for not more than six calendar months (r. 43) ; time is extended to one year for the personal representative to sue or be sued in such cases if either party dies after such service (r. 44). The time for service of a summons to appear to a plaint is regulated by r. 42—eight days before the return day of the summons in the Brisbane district; eighteen clear days in a home district; twenty-one clear days in a foreign district; at any time before the return day in case the defendant is about to remove out of the jurisdiction.

Proceedings under “ The Married Women’s Property Act, 1890,” are to be by summons with particulars annexed (r. 200), and under

INTRODUCTION. xxxi.

“ The Friendly Societies Act 1876 ” by plaint and summons with particulars annexed as in an ordinary action (rr. 201 to 203).

Service of the summons is to be personal, or with some person at his residence, or as a Judge directs (s. 65). Service in the case of a company is to be at its registered office, or on some member, officer, or servant at the principal place of business in Queensland, or otherwise &s the Judge directs. The person serving any process must endorse on the, paper, within three days, the time, place, and manner of service (s. 65)* A Bailiff may attend before a justice and depose on oath as to the service. Such deposition when endorsed on the process is sufficient proof of the service (s. 66). If the plaintiff undertakes to serve a summons, he is to make a due return to the Bailiff, with an affidavit of the fact of service or non-service (r. 25).

Provision is made in the Buies for service on different persons (see r. 61) :—When a defendant is on board ship (r. 49); in case of a soldier or marine (r. 50) ; on a prisoner in gaol (r. 51); a workman in a mine (r. 52) ; a person who is employed or dwrells in any public asylum, gaol, &c. (r. 53) ; where a defendant keeps his house or place of business closed to avoid service (r. 54) ; in case of violence or threats (r. 55) ; on an infant (r. 57); partners (r. 58) ; a firm consisting of more than one (r. 59) ; husband and wife (r. 60).

If the defendant, served in pursuance of any of the Buies 49 to 55, has knowledge of the proceedings before the time prescribed for service, the cause may, at the discretion of the Judge, proceed or be adjourned (r. 56) ; no process or notice is to be served on Sunday, Christmas Day, Good Priday, or other day of public fast and the like, but such days are to be counted in the computation of time in respect of such service (r. 62). A warrant of commitment maybe executed on any day (s. 170). If any dispute arises as to the sufficiency of service, it is to be inquired into by the Judge (r. 63).

Judgment—or Special Summons.—In an action in which the plaintiff seeks only to recover a debt or liquidated amount of money, with or without interest—arising (a) on a contract express or implied; (Z>) on a bond or contract under seal for payment of a liquidated amount of money ; (c) on a statute where the sum sought to be recovered is a fixed sum or in the nature of a debt; (d) on a guaranty whether under seal or not when the claim against the principal is in respect of a debt or liquidated demand only—the summons may be specially endorsed in the form in Schedule ii., and with the particulars of the claim, after giving credit for any payment or set-off, and also with a claim for costs. The summons must also state that on payment of the amount claimed and costs within the time prescribed for filing a notice of defence proceedings will be stayed (s. 64). These particulars may be amended at any time before hearing, subject, however, to the Judge’s disallowance of the same or an order for adjournment (r. 70). The

xxxii. INTRODUCTION.

summons so endorsed shall be dated as of the day of issue of the plaint, and that date shall be the commencement of the action (r. 45). It is in force for six months (r. 46) and if not then served, and application is made to a Judge before the expiration of that time, he may, on being satisfied as to the lonajides of the application, renew the summons for six months, and so on from time to time (r. 47). A renewed summons is endorsed “ renewed ” and is signed by the Begistrar and sealed with a date seal (r. 48). The service of the summons must be personal unless the Judge otherwise directs (s. 65). It may be served personally or on the defendant’s solicitor, &c., but it is good service if the Judge is satisfied that it has como to defendant’s knowledge (r. 64). If the summons is served in a home district, notice of defence must be filed within ten clear days, if in a foreign district within thirteen clear days, and if in the Brisbane district within five clear days (r. 69).

When the defendant does not file a notice of defence within the prescribed time, judgment may be signed by the plaintiff on proof of service and of the particulars of the claim, but the Judge may set aside or vary the judgment on terms (s. 75).

Similar proceedings may be had where one or more of several defendants makes or make default (s. 76).

After notice of defence is filed the plaintiff may, on filing an affidavit, by himself or some other person who knows the facts, that there is no defence to the action, take out a judgment summons calling on defendant to show cause why the plaintiff should not be at liberty to sign judgment forthwith for the amount endorsed, interest, if any, and costs. A copy of this affidavit is to accompany the summons. Upon the return of the summons the Judge may, unless the defendant satisfies him that he has a good defence on the merits, or discloses facts sufficient to entitle him to defend, authorise the plaintiff to sign judgment accordingly (s. 77).

The summons is returnable ten clear days after service in a home district, thirteen days in a foreign district, and five days in the Brisbane district (r. 79, s. 78), either (a) before a Judge at the Court from which it was issued ; or ([h) if that place is not within the Northern District, then the Court at Brisbane ; or (c) if it is within the Northern District, then at the Court at Townsville; or (d) in either case at a Court appointed by proclamation for the purpose (s. 79).

When the summons is made returnable at the Court from which it was issued it must be heard and determined only by the Judge there (s. 80). When it is made returnable at the Court at Brisbane, Townsville, or other appoiuted place, and the summons was not issued from such Court, the Begistrar of the Court from which it was issued must trausmit all documents in the cause to the Begistrar of

INTRODUCTION. xxxiii.

the Court at which it is returnable (s. 81). The summons is to be heard and determined by a District Court Judge at that Court if he is present on the return day (s. 82) ; and if he is not present, then the documents in the cause are to be transmitted to the Registrar of the Southern or Northern Supreme Court, as the case may be ; and the summons is to be thereupon heard and determined in Chambers by a Supreme Court Judge (s. 88).

The Judge who hears the summons is to make a minute of his order (s. 84), and this, together with all the documents, are to be remitted to the Registrar of the Court from which the summons was issued (s. 85), and thereupon if judgment is ordered to be entered, that Registrar shall proceed accordingly (s. 91). Before the hearing of the summons the defendant may show cause, either by offering to pay into Court the amount claimed, or by affidavit on the merits as to the whole or part of the claim. But the Judge may bring the defendant before him for examination and production of documents (s. 86). Affidavits to be used by defendant shall be filed one clear day before the return day (r. 81). If the defence is only to a part of the claim, the defendant may have leave to defend as to that part, and the plaintiff shall have judgment for the balance (s. 87). If one of two defendants has a good defence, he may have leave to defend, and the plaintiff shall have judgment against the other (s. 88). Leave to defend may be given unconditionally, or subject to terms (s. 90).

The proceedings above detailed apply equally where the defendant claims a set-off, or calls upon the plaintiff to show cause (s. 89).

When leave to defend is obtained, the trial, subject to change of venue, takes place at the Court in which the plaint was entered (s. 92).

When leave to defend is granted, the action is set down for hearing at the next sittings of the Court (r. 80).

Instead of proceeding by way of judgment summons, a plaintiff may, after the filing of a notice of defence, give notice of trial within the prescribed time, and proceed in the usual way (r. 73).

Chambers.—A Judge may sit in Chambers at any time and place (s. 13), and may exercise there any jurisdiction except the trial of actions &nd the hearing of applications for new trials (s. 14). All applications relating to proceedings in Chambers must be made to the Registrar of the Court which has cognizance of the matter (r. 184) ; and affidavits and papers to be used are to be laid before the Judge after they have been filed with the Registrar (r. 185). Summonses returnable at Chambers are to be signed and sealed by the Registrar (r. 186). The nature and grounds of the application must be duly set out (rr. 186, 187), and copies of affidavits intended to be used must be served on the opposite party in due time (r. 188).

c

xxxiv. INTRODUCTION.

Defence.—In contested matters a notice of defence (s. 67) must be filed within eight days before the return of the summons, in the case of an ordinary summons, except in the Brisbane district, where the time is five clear days (r. 65). If the defendant is entitled to relief on equitable grounds, he may plead the facts as a defence (s. 70.) Certain pleas as set-off, infancy, coverture, Statute of Frauds, Statute of Limitations, discharge in insolvency, justification in tort (including wrongful dismissal) or any equitable defence, must be specially pleaded by five clear days’ notice to the Registrar, and the Registrar must notify the plaintiff of the plea (s. 71, r. 66). The particulars required % the several pleas are prescribed by r. 67. If tender is pleaded, the amount tendered must be paid into Court, before or at the hearing (r. 68).

Amended particulars of claim may be delivered at any time, and amended pleas, but subject to being disallowed by a Judge (r. 70). Matters which are the subject of a cross action maybe pleaded by way of set-off (s. 68), including equitable claims (s. 69) ; and if the plaintiff discontinues, the defendant may proceed to prove his set-off (r. 71).

Payment into Court.—In satisfaction of the claim, q> defendant may pay into Court a sum of money and costs up to date, which are to be paid to the plaintiff, who, if he then proceeds, and recovers no more, is liable to pay the costs of the defendant, subsequently incurred (s. 72). The money is to be paid as prescribed by r. 74. If the plaintiff accepts the sum paid in, and gives notice to the Registrar and the defendant, the cause is to abate, but in the absence of such notices the action may proceed (r. 75).

Discontinuance.—A plaintiff may withdraw on giving notice to the Registrar and the defendant, who shall not be entitled to any costs incurred after such notice is received, unless the Judge otherwise orders (r. 76).

Confession of Debt.—A defendant may confess judgment for the. whole or part of the debt by certain formalities (s. 73) and within the times prescribed by r. 77. The parties may agree as to the amount of the debt and the conditions of payment (s. 74) ; costs and fees in these cases are to be stated separately (r. 78).

Parties.—All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative, and judgment may be given for those found to be entitled, subject, however, to the defendant having his costs against a plaintiff improperly joined (r. 82); and all persons maybe joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative* and judgment may be given against the parties liable (r. 83) ; defendants may be joined who are jointly, or jointly and severally, liable* including parties to bills

INTRODUCTION. XXXV

and notes (r. 84) ; but the plaintiff may at his option proceed against one or more of the persons jointly liable, and recover judgment without reference to the other or others. Every person so sued is entitled to contribution from the persons jointly liable with him (s. 95) and may avail himself of any set-off or other defence to which he would be entitled if all the persons answerable were made defendants (r. 72). S. 93 deals with proceedings by husband and wife. Insolvency is not to cause an action to abate, if the trustee elects to continue it; if he does not so elect, the defendant may plead the insolvency of the plaintiff (s 94). An executor or administrator may sue and be sued as a person in his own right (s. 96, r. 101). If, as plaintiff, he is unsuccessful, costs may be awarded in favour of the defendant, and levied cle bonis propriis (r. 100). He may be charged with having had assets and wasted them (rr. 102, 103). The practice in actions against executors and administrators is governed by rr. 104-112.

An infant may sue without a next friend for the recovery of wages or piecework, or services as a clerk, servant, mechanic, or labourer, as if he were of full age (s. 97). In cases other than those specified the infant must procure a next friend to attend before the Registrar, on entering his plaint (r. 37). An infant defendant requires a guardian ; if none has been appointed the Registrar is to act (r. 124). Partners may sue or be sued in the name of the firm (r. 85), and any person carrying on business in the name of a firm apparently consisting of more than one person may be sued in the name of the firm (r, 86).

Amendment of Parties.—Rules 87-99 deal with amendment of parties. If a person other than the defendant appears and admits he is the person intended to be charged, his name may be substituted with the plaintiff’s consent (r. 87). Power is given to amend where a person sues or is sued in a representative character, and it appears he ought to sue or be sued in his own right (r. 88). The converse is allowed by r. 89. If the name or description of a party is incorrect, it may be amended (rr. 90, 91). In actions by or against husband and wife, if the wife be improperly joined or omitted, the summons may be amended at the hearing (r. 92). If more than the necessary number have been made parties, the unnecessary ones may be struck out (rr. 93, 95) ; if less, they may be added (r. 94). If there are two or more defendants, and some have not been served, the names of the persons not served may be struck out, and the cause may proceed against the others who have been served (r. 96). In case of the death of either party before judgment, the action does not abate if the cause of auction survives (r. 97); and in the like event after judgment, execution may nevertheless proceed by or against the survivors (r. 98). If a married woman sued as a femme sole obtains judgment on the ground of coverture, the husband may take proceedings thereon in the name of the wife (r. 99).

xxxvi. INTRODUCTION.

Joinder and Severance of Causes of Action.—Two or more causes of action, if by and against the same persons and in the same rights, may be joined in the same action, unless the Judge thinks the trial of them would be inexpedient or inconvenient (s. 98). In actions of replevin no other cause of action is to be joined in the summons (r. 34). A cause of action is not to be divided; a plaintiff may abandon the excess above the amount allowed under the Act (s. 99) ; but he may sue on each individual promissory note or security given in respect of a debt which originally exceeded £200 (s. 100).

Changing Venue—A Judge may change the venue for the sake of convenience or fairness, and in that case the Registrar of the one Court is to transmit the record to the Registrar of the other Court, and the trial is to be held in the ordinary course.

If the Judge is interested in a cause he is either to change the venue or adjourn it to be heard before another Judge (s. 101).

JEvidence.—Witnesses are summoned by means of subpoenas, which may contain any number of names, and a clause duces tecum (s. 102).

They are issued without leave of a Judge (r. 113), and must be served in manner specified, a reasonable time before return day (s. 102, r. 114). If a witness on being tendered his expenses, refuses or neglects without sufficient cause to appear or produce documents, he may be fined (s. 103), or arrested (s. 104). If a witness before being sworn requests the Judge to fix his expenses, the Judge may do so, and decline to compel him to give evidence till his expenses are paid or secured to him (r. 115). Notice to admit documents may be given (r. 116), and notice of a desire to inspect (r. 117). Documents produced from the proper custody may be read without further proof, subject to objection and adjournment for proof (r. 118). Examinations de bene esse may be held on the authority of the Judge, who must be satisfied as to the necessity for such examination (s. 105).

. . The. rules of . evidence observed in the Supreme Court are toobtain on a trial in the District Court (s. 117). Proof is to be limited to the matter in the summons, subject to any amendment (s. 118). Affidavits when used in the District Court must be sworn before certain specified persons (s. 119), and are to comply with the provisions of rr. 128 to 142, which are substantially the same as those in force under the Judicature Act.

The Court books or certified copies upon production are to be primd facie evidence of the contents of the books or of the entries, and of the regularity of the proceedings (s. 34).

Trial.The trial of an action may be with or without a jury. Trial by

jury has been already sufficiently dealt with. On the opening of the Court the list of undefended cases in which the claims are for

INTRODUCTION. ^C^0PER77a debt or liquidated demand is first called: ov^f*; and^^pou proolN^ of the service of tbe summons, if the plaint (discloses^;a? sufficient j cause of action, judgment is given for ^|g^J^ti^;iinles| the,.//y Registrar has received notice that the action\jjra&j^^Court. The plaintiff need not appear to hear^igm4j|lj

defendant may be let in to defend on terms. An affidavit of debt is necessary, with particulars annexed, before execution is issued (s. 107).If a case is defended, the defendant is to appear and answer the plaint, whereupon the Judge hears the action and gives judgment (s. 108). The defendant, if required, must state the grounds of his defence (r. 126).The hearing of an action may by consent be postponed (r. 119), and no order need be served on the opposite party unless the Judge so directs (r. 120). The Judge has discretion to adjourn the cause for a defect in practice (r. 121).

If a notice of defence has been filed and the defendant appears, but a plaintiff does not, the plaintiff will be nonsuited, unless the defendant admits the cause of action to the full amount claimed, and pays the fees payable in the first instance by the plaintiff, in which case the Judge may proceed to give judgment. If neither party appears the cause is to be struck out (s. 109). If the defendant appears and does not admit the plaintiff’s claim, and the plaintiff does not appear, the Judge has a discretion to award the defendant costs (r. 122). If the defendant does not appear, judgment will be given for the plaintiff on proof of service, and if the plaint discloses a sufficient cause of action ; but such judgment may be set aside and a new trial granted on such terms as the Judge thinks fit (s. 110). In case of a set-off where the set-off exceeds the claim, defendant is to have judgment for the excess; but the set-off must not exceed £200, and this equally applies where the plaintiff fails to prove his claim (s. 111). A Judge may grant either party time to proceed, or an adjournment (s. 112).No formal order is necessary when leave is given to take any proceeding, unless the Judge so directs (r. 125).

A Judge has power at any time to amelid any defect or error upon such terms as he thinks fit, and shall make all amendments necessary for determining the real question in issue (s. 131).

Costs.—The costs are to abide the event, unless the Judge gives a special direction as to their apportionment, and they may be recovered in the same manner as a debt adjudged to be paid (s. 120). Costs are to be taxed by the Registrar of the Court in which they are incurred, subject to a review by the Judge, on the application of either party ; no costs are to be allowed unless sanctioned by the scale in force (s. 121). Fees allowed to barristers and solicitors, and expenses to witnesses, are to be according to the prescribed scale ; but where the amount sued for does not exceed £10, the fees are not to exceed the amount allowed in the Small Debts Court (s. 122). In any action the J udge may award a fixed sum, not exceeding £30, exclusive of

xxxviii. INTRODUCTION.

mileage and witnesses’ expenses, instead of taxed costs (s. 123). If the Court has no jurisdiction in any matter brought before it, and the parties do not consent to the jurisdiction, the Judge orders the matter to be struck out and may grant costs (s. 124). Costs as between solicitor and client may be taxed by the Judge, or by the taxing officer of the Supreme Court (s. 125).

The Judge is to direct what number of witnesses is to be allowed on taxation between party and party, but their allowance for attendance is limited to the amount mentioned in the scale annexed to the rules (r. 143). The Judge has a discretion to allow expenses of witnesses who have neither been subpoenaed nor examined (r. 144). If money is paid into Court on a judgment, it is to be first appropriated to the satisfaction of costs (r. 145). Costs of warrants of execution, whether executed or not, are allowed against a defendant, unless disallowed by the Judge (r. 146); so also costs of warrants of commitment and writs of ca. sa. (r. 147). "When an execution is paid out at the time of the levy, no possession fee is to be allowed; but the fee for the day- must be paid if the officer necessarily remains in possession more than one hour (r. 148). The bill of costs must, within twelve calender months from judgment, be filed with the Registrar, who is to make an appointment for taxation and give notice to the opposite party. The Registrar may extend the time for filing the bill of costs (r. 149).

No costs are allowed in the Supreme Court on a judgment not exceeding £30 (s. 126), unless a Judge certifies (1) that the action could not have been brought in a District Court without the defendant’s consent; or (2) that an officer of the District Court was a party (except in interpleader cases) ; or (3) that there was sufficient reason for bringing the action in the Supreme Court by reason of (a) the probable cost of a trial in the District Court; or (b) the questions of law involved (s. 127). The same rule applies in the case of summary judgment where less than £30 is recovered (s. 128).

Mittimus.—If an action is brought in the Supreme Court which might have been brought in a District Court-without the defendant’s consent, the action will be remitted to the District Court on the defendant’s application, unless the plaintiff can show (1) that unnecessary delay would be caused by a trial in the District Court; or (2) that the case should be tried in the Supreme Court on account of the cost, or questions of law involved, or because a fair trial cannot be obtained in the District Court (s. 129). A copy of the order and pleadings, if any, is to be forwarded to the Registrar of the District Court. If no statement of claim has been delivered the plaintiff is to lodge with the Registrar a concise statement of the particulars, as in a plaint, signed by the plaintiff, or his solicitor, with a copy for each defendant (r. 150). If no statement of defence has been delivered the defendant is to give a notice of defence, as prescribed by the rules (r. 151). The Judge of the district fixes a day for trial (s, 129), aud

INTRODUCTION. XXXIX.

notice is sent to both parties by the Registrar (r. 152) ; after the trial the result is to be certified to the Registrar of the Supreme Court, and judgment may be signed accordingly in the Supreme Court (s. 129).

The costs in such an action from the order for Mittimus till judgment are allowed on the District Court scale. The costs of other proceedings in the case are in the discretion of the Supreme Court (s. 129). Remitted actions where no jury is required may be heard on other dates than those proclaimed for the holding of the Court (r. 153).

A defendant in an action for wrong in the Supreme Court may, on showing that the plaintiff has no visible means, compel the plaintiff to give security for costs, or have the action remitted to the District Court; on default of the plaintiff, the action will be so remitted, and will be tried in the usual way. The costs of the order and all proceedings prior to the order are to be on the Supreme Court scale, but all subsequent costs on the District Court scale (s. 139).

Judgment.—Judgments are to be final, unless the plaintiff is nonsuited, or a new trial is ordered (s. 132). When the judgment does not exceed £20, exclusive of costs, payment may be ordered by instalments ; but in other cases, unless by consent of the plaintiff, the full amount is to be paid forthwith, or within fourteen days from judgment. All money is to be paid into Court (s. 133). If no time is mentioned in the order for payment by instalments, the first becomes due on the twenty-eighth day from the date of the order, and so on for every successive instalment (r. 155). When a judgment is reseived the Judge may deliver judgment at any sitting of the Court, or may write his decision and deliver it to the Registrar for the information of parties (r, 156).

In an action of detinue, judgment for the plaintiff shall be for the value of the goods detained, with a sum for damages for detention and costs; but it may be ordered that on payment of the damage and costs, and return of the goods detained, satisfaction is to be entered (r. 154).

New Trial.—A Judge may order a new trial on such terms as he considers reasonable, with a stay of proceedings (s. 132). An application may be made on the day of the hearing, or any subsequent time, on the applicant giving the prescribed notice to the Registrar and the opposite party (r. 159). Where the former trial might have been before a jury, the Judge may order a jury (r. 160). An application for a new trial is not to be heard in Chambers (s. 14).

Arbitration.—A Judge has power to refer any action to arbitration (s. 134). The order to refer may be made before, upon, or after the return day (i\ 161). The reference is not to be revocable, unless

xl. INTRODUCTION.

by consent of the Judge, and the award shall be entered as the judgment ; but the Judge may set aside or refer back the award, or, with the consent of the parties, revoke the reference, or order another reference to be made (s. 134). The party applying to set aside the award is to give the other side seven clear days’ notice (r. 162). The application must be supported by affidavit, which is to be served on the opposite party (r. 163).

A Judge may make an order to compel the attendance of witnesses before the arbitrators, and the penalty for default of attendance is the same as in the case of a subpoena to attend a trial. Every witness is entitled to conduct money and expenses as at a trial (s. 135).

Attachment of Goods.—If the plaintiff, by affidavit, shows to the satisfaction of the Judge or Registrar that he has a cause of action, or has sustained damage to the amount of £10 at least, and that the defendant is about to leave the Colony, or to go into remote parts of the Colony, or to sell or remove his goods thither, and that the action will be sb defeated, he may, on terms, have leave to issue a warrant of attachment and seizure, authorising the Bailiff to seize and attach the goods of the defendant until he gives bail in a sum equal to the plaintiff’s claim and £5 for costs. If the bail is not given within fourteen days the action is to be tried before the nearest police magistrate, and the plaintiff must prove his claim. The depositions and findings of the police magistrate are to be forwarded to the Registrar of the District Court from which the warrant issued; judgment may be entered thereon and execution issued. The Judge may set aside such a judgment on terms (s. 136).

Recovery of Possession of Land.Possession of land may be recovered by a landlord when the term

or interest of a tenant has expired or been determined. A summons is issued, and if on the return day the defendant does not show good cause to the contrary, then, on proof of the tenancy, and the defendant’s refusal to deliver up possession, the yearly value of the land or rent, the expiration or determination of the tenancy, the plaintiff’s title if it has accrued since the letting of the land, and the service of the summons if the defendant does not appear, the Judge may order possession of the land to be given to the plaintiff. If the order is disobeyed the Registrar will issue a warrant to a Bailiff authorising him to give possession to the plaintiff (s. 137). In a plaint for the recovery of possession of land the plaintiff may claim rent and mesne profits, provided the claim does not exceed £200 (s. 138). Landlords may recover possession of land when the rent is in arrear six months, and the landlord has by law the right to re-enter. The proceedings are by summons, and are substantially identical with those under s. 138 (s. 139). If a sub-tenant is served with a summons for the recovery of possession he must give notice to his immediate landlord, under

INTRODUCTION. xli.

penalty of forfeiting three years’ rack-rent of the land held by the sub-tenant (s. 140). A summons to recover possession of land may be served like other summonses; but if the defendant cannot be found a copy of the summons is to be posted on some conspicuous part of the premises sought to be recovered, and that is sufficient service (s. 141). A warrant to a Bailiff is sufficient to justify an entry on the land between the hours of 9 in the morning and 4 in the afternoon (s. 142). A warrant is to remain in force three months from the order for delivery (s. 143). An appeal lies to the Supreme Court when the value or rent exceeds £30 by the year (s. 144).

Appeals.An appeal lies to the Supreme Court from a judgment in a

District Court, (1) in an action or matter where the sum sued for exceeds £30, (2) in ejectment where the value or rent exceeds £30 a year, (3) in replevin where rent for which the distress was or might have been made exceeds £30, or (4) in interpleader where the sum claimed or value of the goods exceeds £30 (s. 144). The appellant, within twelve clear days after the verdict, or six clear days in the Brisbane district (r. 164), is to give notice of appeal, and give security to be approved by the Registrar, or deposit £30 to answer the costs of appeal. Notice does not operate as a stay of execution, unless the Judge or a Judge of the Supreme Court so directs (s. 144). The notice is to be in writing, and to state the particulars of the ground of appeal. It is to be given to the Registrar and to the successful party (r. 165). At the trial where there is a right of appeal, the Judge, at the request of either party, is to make a note of any question of law raised, and of the facts in evidence relating thereto, and of his decision on it, and on the action or matter (s. 145). A copy of the Judge’s note, signed by him, is to be furnished at the expense of either party, and is to be used on the appeal (s. 146). The Supreme Court, on an appeal, has power to draw inferences of fact from the findings of a Judge or jury, and may (a) order anew trial, (b) order judgment to be entered for any party, or (c) make any other order necessary to determine the real questions in issue, and (d) make an order as to the costs of appeal, which order is to be final (s. 147). If both parties agree in writing that the decision of a Judge shall be final, no appeal will lie (s. 148). A judgment or action is to be removed to another Court only in the manner provided by the Act (s. 149). When the Court of Appeal has pronounced judgment, either party may deposit a copy of the order with the Registrar, and within forty-eight hours send notice to the other party (r. 166). If a new trial is ordered by the Court of Appeal, the Judge of the District Court appoints the date o£ trial, and notice is given to the parties (r. 167). If the Court of Appeal orders judgment to be entered for either party, such judgment is to be entered, and the successful party may proceed as on a judgment in a District Court (r. 168).

xlii. INTKODU OTION.

Certiorari.—Any proceeding, civil or criminal, maybe removed to the Supreme Court by writ of certiorari if a Judge of such Court thinks it desirable. Where the amount claimed does not exceed £30, an action is not to be removed unless the defendant gives security for the sum claimed, and also for a sum not exceeding £100 for the costs in the Supreme Court (s. 150).

Order in Lieu of Mandamus.—A writ of mandamus is not to be issued, but the party requiring an act to be done by a Judge or officer of the District Court may on affidavit apply to the Supreme Court for a rule or summons calling on him, and also the party affected by the act, to show cause why the act should not be done, and if good cause is not shown, the Supreme Court or a Judge thereof may direct the act to be done, and this direction must be obeyed under pain of attachment (s. 151).

Prohibition.—A Judge is not to be served with notice of an application for a writ of prohibition, and he need not appear unless required by a Judge of the Supreme Court, and is not liable for costs. The application is to be heard in the same manner as a case of appeal brought from a judgment of a Judge (s. 152).

Practice in Such Cases.—A rule or summons to show cause why a writ of certiorari or prohibition should not be issued is to operate as a stay of proceedings if the Supreme Court or a Judge thereof so directs. Notice of the rule or summons is to be given to the Registrar and parties at least two clear days before the day of hearing; otherwise the Judge of the District Court may order the party obtaining the writ to pay all costs of the day, unless a different order has been made in the Supreme Court (s. 153). A similar provision is enacted where an order has been obtained ex 'parte (s. 154). Where on the removal of an action no provision is made for costs of proceedings in the District Court, the costs are to be costs in the cause (s. 155).

Appeals to a District Court.—In an appeal from a Small Debts Court where the sum sued for amounts to £10 or upwards, the clerk of that Court is to take notes of the evidence, and transmit them to the Registrar of the District Court two clear days before the sittings, and these are the only evidence to be used on the appeal, unless both parties agree to the reception of fresh evidence, or the Judge directs such reception ; after the appeal the judgment is to be appended to the record by the Registrar and returned to the clerk, and effect is to be given to the judgment according to its tenour (s. 156). The Judge may allow costs and witnesses’ expenses (s. 157). He has power to amend in any case of appeal from a conviction or order of justices (s. 158). When in any Act provision is made for appeal to a Court of general or quarter sessions, or to a Judge of the Supreme Court on circuit, or an appeal is given from the decision of a justice, and no other Court of Appeal is given from such decision, the appeal is

INTRODUCTION. xliii.

to be to the District Court of the district in which the decision appealed from is given. In any such case the Judge may state a special case for the opinion of the Supreme Court on any question of law, and his judgment shall be affirmed, amended, or reversed (s. 159).

Enforcement of Judgments.After a judgment has been given in a District Court, various

modes are open to the successful party to obtain the fruits of his judgment.

Action.—He may bring an action in the Supreme Court upon his judgment, but will recover no costs up to judgment, unless the defendant appears and unsuccessfully defends the action (s. 160). Executors and administrators may sue and be sued on a judgment given for or against a person deceased (r. 158).

Execution.—He may also apply to the Registrar for a warrant of execution, directed to a Bailiff (s. 161). In proceedings in the nature of a scire facias, execution on a judgment is not to issue by or against a person not a party to the suit without a plaint or summons upon the judgment, the proceedings in which are to be the same as in ordinary cases (r. 157). The Registrar is to enter the precise time of application for a warrant in the Execution-book and on the warrant, and in case there are several warrants the Bailiff is to execute them in the order of time of entry (s. 174). If a warrant of execution has been issued out of the Supreme Court, and another out of the District Court by the same execution creditor against the same debtor, the right to the property seized is to be determined by the priority of the application to the Sheriff of the Supreme Court, or to the Registrar of the District Court. The Sheriff on demand is to inform the Registrar of the precise time of the delivery of the writ, and vice versa (s. 175). In case the Judge makes an order for payment by instalments, execution is not to issue until after default in some instalment; but on such default execution may issue for the whole sum and costs then unpaid, unless the Judge has otherwise ordered (s. 176, r. 170). So, too, where default is made in payment of the whole amount of a judgment (r. 170). The Judge may suspend or stay execution for sufficient cause (s. 177). Seven days’ notice of the application by the defendant, under s. 177, is to be given to the plaintiff (r. 176). The Registrar is to endorse on every warrant of execution the sum of money and costs adjudged and amount of fees for executing the warrant, and also deliver to the Bailiff a notice in the form prescribed, for service on the debtor (s. 178, r. 171). The execution is to be superseded and the property discharged, upon payment of that amount and costs, or of so much as the execution creditor agrees to accept (s. 178). In case of cross judgments, execution is to issue for the excess only, and satisfaction is to be entered on the judgment for the smaller sura. If the

xliv. INTRODUCTION.

gums are equal, satisfaction is to be entered on both judgments (s. 179). Warrants of execution are to bear date on day of issue, and continue in force twelve calendar months (r. 169). Execution may be had out of the district of the Court from which the warrant was issued, by annexing to the original warrant of execution or commitment a warrant under the hand of the Registrar and under the seal of the original Court, and sending these to the Registrar of the district where the warrant is to be executed. The Registrar of the Court to which the warrant is sent shall seal it and issue it to the Bailiff of his Court, who is to execute the warrant and make a return to the Bailiff of the original Court (s. 173). Warrants may by leave be issued concurrently into one or more districts ; but the costs of. more than one warrant are not to be allowed against the execution debtor unless the Judge orders (r. 174). Execution maybe levied (a) against land ; (b) against goods ; (c) against the person.

(a.) Land.—A Bailiff may, under a warrant directing him to levy a sum of money, seize and cause to be sold any land which the person named in the warrant is or may be possessed of or entitled to, or which he has power to assign or dispose of (s. 162) ; but, instead of an actual seizure, the Bailiff may cause a notice of the warrant, and of the day and place of sale, and the particulars of the property, to be published in the manner prescribed by r. 175 ; and the publication of the notice is equivalent to an actual levy (s. 163). On a sale the Registrar is to execute a transfer, which is to operate as a conveyance of the title of such person (s. 164).

If the land is not under the u Real Property Act of 1861,” a warrant of execution does not bind the land until it is registered(s. 165).

(b) Goods.—Any goods which the person named in the warrant is or may be possessed of or entitled to, or which he has a power to assign or dispose, may be seized and sold, except the wearing apparel, bedding, tools and implements of trade, of such person and his family to the value of. £10. (s. 166). The Bailiff may seize and hold any securities for money, and receive money payable by virtue of such instrument from the person liable under it; the execution creditor may sue in the name of the execution debtor, or in the name of any person in whose name the execution debtor might sue, for recovery a sum secured, when the time of payment arrives. Any money paid to the Bailiff or so recovered is to he paid into Court, and is an effectual discharge to the person by whom it is paid (s. 167). No sale of goods is to be made until after five days from the time the goods were taken, unless the goods are of a perishable nature, except upon the request in writing of the person whose goods are taken. Until sale the goods are to be deposited in a safe place, or may remain in the custody of the Bailiff’s agent (s. 168). At any time within five clear days from the seizure, or at any time before the removal of the

INTRODUCTION xlv.

goods, the landlord of any premises in which the goods taken are, may claim arrears of rent. The notice specifying the amount due and the period in respect of which the rent is due, signed by the landlord or his agent, is to be delivered to the Bailiff, who is to keep possession of the goods by way of distress for the rent and the cost of the possession, and must not within five clear days from the date of such notice sell any of the goods taken, unless they are of a perishable nature, or upon the written request of the person whose goods are taken. The Bailiff shall then sell enough goods to satisfy (1) the costs of the levy and sale, (2) the landlord’s claim for rent, not exceeding (a) rent for four weeks when the premises are let by the week, (b) rent for two months when let by the month, (c) rent for three months in any other case; and (3) the amount for which the warrant was issued. In case of a replevin the Bailiff nevertheless is to sell sufficient to satisfy the costs^ of the levy and sale and the amount for which the warrant was iss and the surplus is to be returned to the defendant. No extra fee; allowed on a claim for rent (s. 169). The sale is to be, and for ready money to the highest bidder after proper notice The sale should be held near the place of execution, but when the are not in a town the debtor may require the Bailiff to remove theni town, but must pay the costs of removal (rr. 172,173).

(c) Person.—When a judgment creditor can show to the satisfaction of a Judge that (1) the debt was fraudulently contracted, or (2) the judgment debtor conceals goods, or (3) he has any income, salary, or means by which, in the opinion of the Judge, he can satisfy the judgment or part of it, or (4) that he is about to leave the Colony, or go to remote parts, or remove his property with intent to evade payment of the judgment debt (this is similar to a ca. re.), the Judge may authorise the Registrar of the District Court to issue a warrant for his commitment to prison. The Baiiiff, keeper of the prison, and police officers are to assist in the execution of the warrant, which may be executed on a Sunday as well as on any other day (s. 170). The debtor is entitled to his discharge on payment of the judgment and costs of the warrant of execution ; or, except in case of fraud, on his being adjudicated insolvent, or otherwise upon the order of a Judge. The arresting Bailiff and keeper of the prison are authorised to receive the amount so paid, and forward it to the Registrar of the Court in which the judgment was recovered (s. 171). When the debtor is arrested he is to be conveyed to the nearest prison and detained until discharged (s. 172). A debtor in prison may be discharged by a Judge in case of sickness, insanity, or for other sufficient cause (s. 177).

Interpleader.—If a third person sets up a claim to the goods taken in execution, an interpleader summons may be issued, and the party issuing the process and the party making the claim are to litigate the claim. Thereupon any action brought in respect of the claim

xlvi. INTRODUCTION.

must be stayed, and the party bringing it may be ordered to pay all costs incurred by his proceeding after the issue of the interpleader summons (s. 180). The summons is to be issued by the Registrar on tie application of the Bailiff, without leave of the Court, and without a fee. The summons is to be served like an ordinary summons, and particulars of the claim are to be delivered within five clear days before the summons is returnable (rr. 177, 178). The execution creditor and claimant are to be summoned to the Court of the district in which tie levy was made (r. 179). The Bailiff is to retain the costs, when tie claim is decided against the claimant, out of the amount levied, if tie Judge so orders, bub without prejudice to the right of the execution creditor (r. 180). The claimant may deposit the appraised value of the goods with the Bailiff to abide the decision of the Judge on such claim; or may deposit the amount of the costs for keeping possession of such goods, otherwise the Bailiff is to sell the goods as if no claim had been made, and pay the proceeds into Court (r. 181). A new trial may be obtained where the amount claimed or the value of the goods exceeds £30 (s. 144).

Attachment of Debts.—After a judgment has been obtained tke successful party may apply to the Judge for an order that the debtor be orally examined as to whether any debts are owing to him, and the Judge may make such order, and order the production of books, etc. (s. 181).

An ex 'parte garnishee order, on application of the judgment creditor supported by affidavit, may be made attaching all debts owing or accruing due from the garnishee to the judgment debtor, and an order may be made for a summons calling on the garnishee to show cause why he should not pay the judgment creditor (s. 182). The summons is to be served not less than seven clear days before the return day, except in the Brisbane district, where it is to be served not less than three clear days (r. 182). Service of the garnishee order or notice of it binds the' debts in the garnishee’s hands (s'. 183). If the garnishee does not make payment into Court forthwith, a warrant of execution may issue (s. 184) ; .but if the garnishee disputes his liability, the Judge may order an issue to be tried (s. 185). If the debt sought to be attached belongs to oris subject to a charge or lien by a third person, a summons may be issued calling on the third person to state the nature and particulars of his claim (s. 186); and the claim of the third person may be tried (s. 187). The summons must be served in like manner as on a garnishee (r. 183). Payment by a garnishee discharges him as against the judgment debtor (s. 188). The Registrar is to keep an Attachment-book and enter all attachments therein (s. 189). The costs of an application to attach debts and of proceedings incidental thereto are in the discretion of the Judge (s. 190).

INTRODUCTION. xlvii.

General Provisions.The fees payable in civil proceedings are set out in Schedule iv.

to the Act (s. 192). They are to be paid in the first instance by the party on whose behalf the proceeding is taken and before it is taken. The Governor ill Council may alter the scale of fees, but one month’s notice of such alteration is to be given, and the change is to be notified to both Houses of Parliament, either of which may signify its dissent (s. 193). Pees of Court are to be paid by way of stamps, to be affixed to the documents (rr. 197 to 199). Pees and fines are to be paid into the Consolidated Revenue Pund (s. 194). Suitors’ money paid into Court and unclaimed for six years is to be paid into the Consolidated Revenue Pund (s. 195).

Security.—In cases where a party proposes to give a bond by way of security, he is to notify to the Registrar and the opposite party the names of the proposed sureties, and the Registrar shall fix a time at which the bond may be executed or objections to the security taken (r. 189). Sureties are to justify by affidavit, unless the opposite party dispenses therewith (r. 190). The bond is executed before the Registrar or a person before whom oaths may be taken. In the latter case it must be attested (r. 191). When executed it is deposited with the Registrar (r. 193). If the party deposits money in lieu of a bond, he must give notice of the fact to the opposite party (r. 192).

Notices.—Hotices are to comply substantially with the forms provided in the Schedule. If a notice or thing is required by the Rules to be given or done within twenty-four or forty-eight hours, no part of Sunday, Christmas Day, Good Priday, or other day of public fast, and the like, is to be included in the computation (r. 195).

Notices may be given to the solicitor, &c., in lieu of the party (r. 196).

Forms.—A large number of forms of proceedings are annexed to the Rules, and others which have been prepared in pursuance of r. 14 by the Registrar of the Southern District Court for the guidance of practitioners, are printed in this volume.

ANNO QUINQFAGESIMO QUIN TO

VICTORIA REGINA.

No. 33.An Act to Consolidate and Amend the Law relating to 55vic.N0.33

District Courts. ,<*:[."[Assented to 17th November, 1891.]

E it enacted by the Queen’s Most Excellent Majes by and with the advice and consent of the Legisli

tive Council and Legislative Assembly of Queensland f Parliament assembled, and by the authority of the same,' as follows:—

B

' Part I.—Preliminary.1. This Act may be cited as “ The District Courts short title.

Act, 1891.” It is divided into Parts, as follows :— Division of7 3 Act.Part I.—Preliminary ; [ComparePart II.—Courts, Judges, Jurors, and Officers; c- 43>s-1-3Part III.—Criminal Jurisdiction and Pro

cedure ;Part IY.—Civil Jurisdiction ;Part V.—Civil Procedure ;Part VI.—Recovery of Possession of Land ;Part VII.—Appeals, &c. ;Part VIII.—Enforcement of Judgments;Part IX.—General Provisions.

2. This Act shall commence and take effect on and Commence- from the first day of January, one thousand eight hundredand ninety-two. * o. 43, B. 2.]1C*

2 DISTRICT COURTS ACT, 1891.

Interpretation.[Compare 51 & 52 Vic. c. 43, s. 186.] Court or District Court.Judge or District Court judge.

Crown Law Officer.

District.

Petty Sessions District.

J ustiee.

Registrar.

Landlord.

Action.

Matter.

J adgment.

Party.

Return Day.

Prescribed.

Rules of Court.

Groods.

3. In this Act, unless the context otherwise indicates—

The term “Court” or “District Court” means a Court appointed under the authority of this Act;

The term “Judge” or “District Court Judge” means a Judge of a District Court or District Courts, and includes a Deputy Judge;

The term “ Crown Law Officer” means and includes the Attorney-General, the Solicitor-General, and the Minister of Justice;

“ District ” means a district assigned to a District Court under the provisions of this Act;

The term “Petty Sessions District” means a district appointed under “ The Justices Act of 1886”* for the purposes of Courts of Petty Sessions;

“Justice” means a Justice of the Peace appointed under “ The Justices Act of 1886”* ;

“Registrar” means Registrar of a District Court, or, where there are joint Registrars, either of the Registrars;

“Landlord” means the person entitled to the immediate reversion of land, or, if it is held in joint tenancy, coparcenary, or tenancy in common, any one of the persons entitled to the reversion;

“Action” includes suit, and means a civil proceeding commenced as prescribed by plaint;

“ Matter” means a proceeding in the Court which is eommen ced a s prescribed otherwise than by plaint;

“Judgment” includes a judgment, order, or other decision or determination of a Judge;

“ Party ” includes a person served with notice of or attending a proceeding, although not named on the record ;

The term “ Return Day” means the day appointed in a summons or proceeding for the trial or hearing of an action or matter;

“ Prescribed ” means prescribed by this Act, or the Rules of Court;

The term “ Rules of Court ” means Rules of Court made as by this Act prescribed;

The term “ Goods ” includes money or bank-notes of any banking society or company established in Queensland or elsewhere, and cheques, bills of exchange, promissory-notes, specialties, or other securities for money;

*50 Vie. .Nu. 17 (P. A W.” 1030).

55 VIC. No. 33.

The term “Small Debts Court” means a Court Small Debts held under the “Small Debts Act of 1867.” * Court'

This section is applied to the interpretation of the rules unless inconsistent therewith, r. 3.

4. The Acts specified in the First Schedule to this Repeal.Act are repealed to the extent in that Schedule indicated, f^8*^

But the repeal shall not affect or invalidate any acts [Compare or things done or proceedings taken under the authority s52 3Vlc‘of the repealed Acts or any of them. i88.]’ ’

All proceedings initiated before the commencement of this Act shall he carried on, as far as practicable, according to the provisions of this Act, and, subject to this Act, according to the provisions of the repealed Acts, which shall for that purpose be deemed to continue in force notwithstanding the repeal.

District Courts'created, and Judges, registrars, bailiffs, and other officers, appointed, under the provisions of the repealed Acts shall, so far as may be necessary, be deemed to have been created and appointed respectively under the provisions of this Act, and shall continue subject to the provisions of this Act.

5. This Act shall not be construed to diminish or General take away from any jurisdiction power or authority con- ”ff ferred on a District Court or Judge by any other Act. judges.

As to such jurisdiction, see notes to ss. 49, 56, 156, 159.

Part II.—Courts, Judges, Jurors, and Officers.Courts.

6. The Governor in Council may, by Proclamation, Appointment order that Courts, to be called District Courts, shall be®fo®“*rict held at such places as he thinks fit, aud may, by like Pro- [Compare clamation, alter the place for holding a Court, or order 5s2 Ji.c- that the holding of any Court be discontinued. °' ’s- ’

The Governor in Council may also, by Proclamation, Assignment assign to any District Court a District, which shall consistof districts- of a Petty Sessions District, or two or more contiguous Petty Sessions Districts.

When the holding of a Court is discontinued, all proceedings pending in the Court shall be transferred to and continued in such other Court as the Governor in Council may direct by the Proclamation, and all records of the Court, the holding of which is discontinued, shall be transferred to such other Court.

As to assignment of court to judge, see s. 10.Police, to attend court and obey the judge. “ The Police Act of 1863,” 27 Vic. No. 11,

s. 9 (P. & W. 1787).

* 31 Vic. No. 29 (P. & W. 1095).

<4 DISTRICT COURTS ACT, 1891.

7. Every District .Court shall be a Court of Record, and shall have criminal and civil jurisdiction as provided by this Act.

For criminal jurisdiction see Part III.For civil jurisdiction and procedure, see Parts IV. and V.Though a court of record it is only an inferior court. Levy v. Moylan, 10 C.B. ISO.

8. Eor every Court there shall be a seal; and notices,__ summonses, certificates, warrants, and other process, issued

5S2180] ^ the registrar shall be sealed or stamped with the seal.’ As to seal in insolvency, see “The Insolvency Act of 1874,” 38 Vic. No. 5, s. 185

(P. & W. 975).As to forging seal, see s. 197.As to documents requiring seal, see Index, title Seal.As to cases where certificate is required, see s. 34, and rr. 136, 141, and ff. 17, 65, 86.As to notices, see Index, title Notice.

Judges.Appointment 9. The Governor in Council may, by commissions tion of judges.in Her Majesty’s name, appoint Judges of District Courts,

each of whom shall he a barrister or a solicitor of at least c. 43, s. 8.] five years standing. .

Until otherwise provided by Act of Parliament, the number of Judges shall not exceed three.

A barrister or solicitor shall not be appointed unless he has been in practice or has held a judicial or legal office under the Crown within two years immediately preceding his appointment.

As to appointment of solicitor to be a judge, see also “The Leqal Practitioners Act of 1881,” 45 Vic. No. 5, s. 2 (P. & W. 2468). *

Judge may be appointed Acting Supreme Court judge. “The Acting Judges Act of 1873,” 37 Vic. No. 5, ss. 1 and 4 (P. & W. 2460). He may also be appointed a judge of the Full Court in case of emergency. “ The Supreme Court Act o/1892,” 55 Vic. No. 37, s. 12.

As to special commission to judge to act as judge of Supreme Court at remote place, see “ Supreme Court Act of 1867,” 31 Vic. No. 23, s. 33 (P. & W. 2452).

Oaths may be taken before judge of District Court. “ Oaths Act of 1867,” 31 Vic. No. 12, s. 2 (P. & W. 1671).

Police to attend District Court and obey the judge. “ The Police Act of 1863,” 27 Vic. No. 11, s. 9 (P. & W. 1787).

...................................Judge is not under the Civil Service-Acts. - “ The Civil Service Act o/1.889,” 53 Vic.No. 10, s. 1 (P. & W. 3698).

As to the liability of judge for his acts, 3ee note to s. 46.

Governor in 10. The Governor inCouncil may,by Order in Council, assign^ourts assign to a Judge, either permanently or in rotation with to each judge, other Judges, such Courts as he thinks fit; but the IxT^Vvic.juUsdiction 0f a Judge shall not be deemed thereby to be c. 43, s. is.] limited exclusively to the Courts so assigned to him.

As to assignment of districts to courts, see s. 6.

J udges 11. Every Judge holding office at the passing of* thistoactwere<1 is hereby empowered, without a fresh commission, tothroughout act as Judge of any District Court in the Colony as [Compare though such Court had been named in his commission 51 & 52 vie. and assigned to him by Order in Council.

• c. 43, s. 9.]

Courts to be courts of record. [Compare 51 & 52 Vic. c. 43, s. 5.]

Seal of thecourt.[Compare

55 YIC. No. 33. 5

Every Judge hereafter appointed shall he appointed for the whole Colony, and shall under his commission he empowered to act in any District Court in the Colony.

12. The Judge to whom a Court is assigned shall Judge to hold attend and hold the Court at the place appointed by the a^cttxUnd Governor in Council at such times as are appointed by to givethe Judge with the approval of a Crown Law Officer, but“£^pare so that a Court is hold in the place once at least in such si & 52 vie. interval as the Governor in Council directs by Procla-c'43, s'10'^ mation.

Notice of the days on which the Court is appointed to be held shall be put up in a conspicuous place in the court-house and in the office of the registrar, and shall be otherwise published as the Judge directs.

When, by reason of the absence of the Judge, the Court cannot be held at the time appointed, the registrar, or, in the event of his absence, the bailiff, shall adjourn the Court to such day as he deems convenient, and shall enter in the minute-book the cause of the adjournment.

For definition of Crown law officer see s. 3,Supreme Court judge hears final judgment summonses in absence of District Court

judge, s. 83. .As to appointing deputy judge in absence of judge, see s. 19. Another judge may

act for a judge,'s. 20. *

13. A Judge may sit in chambers at anytime and Judge may sit at any place, whether that place is within or not withinin chambers- the district of the Court in which the action or proceedingis pending.

14. Subject to the Rules of Court, a Judge may jurisdiction exercise in chambers any jurisdiction of a District Court,in chamber9- except the trial of actions and the hearing of applicationsfor new trials.

Two judges may sit in chambers in same place concurrently, s. 21.As to proceedings in chambers, see rr. 184 to 188. Application under “ The

Married Women’s Property Act, 1890,” 54 Vic. No. 9 (F. & W. 4040), may be made in chambers, r. 200.

15. A Judge shall not practise as a barrister, solicitor, judges not to conveyancer, or notary, or be directly or indirectly con- j^p^iLment cerned or interested in such practice; and a Judge shall [Compare not be capable of being summoned or being chosen as abl4* S5S2 JiV member of the Legislative Council or Legislative Assembly. ° ,ss ’ -J

Judge maybe chairman of registration court under “The Elections Act of 1885,”49 Vic. No. 13, s. 11 (P. & W. G44).

good16. A Judge shall hold his office during ability and Judge’s

behaviour, and shall receive (exclusive of any ( Compare allowance for travelling expenses) an annual salary of one & 52 Vic. thousand pounds, which sum shall not be diminished during 43, s'23 his continuance in office.

Removal from office.T Compare 51 & 52 Yic. c. 43, s. 15.]

6

No travelling expenses except to attend courts. [Compare 51 & 52 Vic. c. 43. s. 23.]

Deputy judge. [Compare 51 & 52 Vic. c. 43, s. 18.]

Judge may perform the duties of another judge. [Compare 51 & 52 Vic. e. 43, s. 19.]

Two judges may sit at same place concurrently. [Compare 51 & 52 Vic. c. 43, s. 12.]

17. The Governor in Council may remove a Judge for jinability or misbehaviour: j

Provided that twenty-one days at the least before \ removal, the Judge shall receive notice of the intention to : remove him, and he shall thereafter and before removal have the opportunity of being heard before the Governor in Council in his defence.

If the judge has had the requisite notice of the charges brought against him, and the party accused has been heard and evidence taken and a proper inquiry held, the Supreme Court will not interfere unless the judge has been removed for grounds other than inability or misbehaviour. Expcirte Ramshay, 18 Q.B. 173 ; 21 L.J. Q.B. 238.

18. A Judge shall not he entitled to receive any allowance by way of travelling expenses or otherwise in respect of a journey, except such as is necessary for the purpose of attending the Courts assigned to him under the provisions of this Act.

19. In case of the illness or absence of a Judge, the Governor in Council may appoint another Judge, or a barrister or solicitor of at least five years’ standing, to act as the deputy of the Judge during his illness or absence.

A deputy appointed under this section shall, during the time for which he is appointed, have all the powers and privileges and perform the duties of the Judge for whom he is appointed.

As to adjournment of court on absence of judge, see s. 12.For definition of term “deputy judge ” see s. 3.A deput}' judge has power after the conclusion of the sittings to deal with applica

tions arising out of cases tried at the sittings. Quinlivan v. Darcy, G V.L.R. 370. As to power of deputy judge to deliver judgment after expiration of period for which he was appointed, or after death of judge whose place he filled, see Hoey v. Macfarlane, 4 C.B. N.S. 718. It seems that the new judge should rehear the case (ib.),

20. In case of the illness, or absence on leave or otherwise, of a Judge, or on an emergency, another Judge may, at the request in writing of the first-mentioned Judge or of a Crown Law Officer, sit either in Court or in chambers for the first-mentioned Judge, and may exercise all the powers and perform all the duties which that Judge might have exercised or performed.

21. When it appears to a Crown Law Officer to he desirable for the more speedy disposal of business that two Judges should hold Courts or sit in chambers concurrently for the disposal of business at the same place, any two Judges, upon the request in writing of a Crown Law Officer, may hold Courts or may sit in chambers at the same place, and may exercise any jurisdiction of a District Court or of a Judge of a District Court at that place either concurrently or at such times as may be convenient.

As to sitting in chambers, see ss. 13, 14. As to proceedings in chambers, see rr. 184 to 188. Application under “ The Married Women's Property Act, 1890,” 54 Vic. No. 9 (P. & W. 4040), may be made in chambers, r. 200.

DISTRICT COURTS ACT, 1891. j

55 YIC. No. 33. 7

22. A Judge who is disabled by reason of permanent Judge may be infirmity from performing the duties of his office may, and^Jf^®^ if required by the Governor in Council shall, retire from disabled, office.

If the Judge at the time of such retirement has Retiring held the office of Judge for not less than fifteen years, hej^°™"®®- shall be entitled to a pension by way of annuity during his si & 52 vie. life equal to the amount of one-half of his salary at thec- 43, s-24 ^ time of his retirement.

Pension is liable to attachment for a judgment debt. Willcock ?. Terrell, L.R. 3 Ex. D. 323.

Jurors.23. The persons qualified and liable to act as jurors who shall be

for the trial of criminal and civil issues and for the assess- ^““p.re ment of damages respectively, under the provisions ofsi&52Vic. “ The Jury Act of 1867,” shall he the persons qualifiedCj 43,9 102 ^ and liable to act as jurors in District Courts.

When the Court is held in an assize town or circuit town the jury hooks made out under that Act by the sheriff, or copies of them, shall he the jury books for the Court; and for the purposes of the establishment of jury districts and the preparation of jury lists every city or town in which a Court is held shall be deemed to he a Court town within the meaning of that Act.

When the city or town in which the Court is held is not an assize town or circuit town, jury lists shall be prepared, published, and corrected, according to the provisions of that Act; hut the lists, when corrected, shall he transmitted by the clerk of petty sessions to the Judge, who shall thereupon cause to be prepared a jury hook according to that Act as nearly as may be, and his duties in that behalf shall he the same as those of the sheriff, except that it shall not be necessary for the Judge to provide the boxes for jury cards mentioned in the tenth section of that Act.

When C.P.S. is registrar his successor, etc., is registrar, s. 35.For further as to practice in relation to jurors see rr. 127, 160, and ff. 59 to 62.As to jury in criminal cases, see ss. 53, 54.As to jury in civil actions, see ss. 113 to 116.As to insulting a juror, see s. 198.

24. When the Governor in Council, by Proclamation, Jury lists for orders a Court to be held at a town where provision has£^^med not been made for the preparing and settling of the jury districts, lists for the town, the Governor in Council may directthe proper justices to cause jury lists for the town to he prepared.

The justices shall thereupon, in pursuance of the direction, prepare or cause to he prepared, within three months after the receipt of the direction, lists of the jurors within

Jury book to be made therefrom.

Provisions of The Jury

Act ofl8G7” to apply.

Judge may issue precepts.

Atlendance of jurors.

the jury district for the town; and thereupon the clerks of petty sessions, police officers, and justices, shall do and perform within the three months all the acts, matters, and things in and towards preparing, correcting, and allowing, the jury lists which are by the said Act required to he ordinarily done in certain months in each year.

The jury lists when so prepai’ed, corrected, and allowed shall be transmitted by the clerks of petty sessions to the J udge.

A jury list prepared under the direction of the Governor in Council in pursuance of this section shall have effect and the same shall continue in force until a new list is prepared under the said Act and this Act.

25. The Judge shall, within ten days after the receipt of the jury lists, cause to be made out from them a jury book for the Court according to the provisions of the said Act so far as it can be applied.

The jury lists when settled shall come into force, and the persons whose names are therein set down shall be liable to serve as jurors immediately after the jury book for the town is made out, and the lists shall continue in force until new lists arc allowed and a new jury book is made out under the provisions of this Act.

26. Except as herein otherwise provided, all the provisions of “ The Jury Act of 1867 ” relating to the constituting and procuring of juries, and the summoning and challenging of jurors, and the discharge of juries, shall extend and apply to the constituting and procuring of juries, and the summoning and challenging of jurors, and the discharge of juries, in District Courts.

For general powers of District Court as to jury see “ The. Jury Act of 18G7,” 31 Vic, No. 34, s. 14 (P. & W, 1015). . ' .

27. The Judge of a District Court shall have the same power to issue precepts for summoning common jurors and special jurors for the trial of criminal and civil issues, that a Judge of the Supreme Court has to issue such precepts for the trial of such issues in the Supreme Court.

28. The Judge of a District Court shall have the same powers to inflict fines for the non-attendance of jurors that a Judge of the Supreme Court has under the thirty- sixth section of “ The Jury Act of 1867”; and that section shall hereafter be read and understood as if the words “or District Court ” were inserted after the words “ Circuit Court ” in that section.

DISTRICT COURTS ACT, 1891.

55 YIC. No. 33. 9

29. IVhen n jury is rcquircd for thG triiil of an action, Special jurors the jury shall be chosen from the class of special jurors, ^y*^®trial 01 unless the Judge orders that the jury shall be chosen from Sthe class of common jurors.

30. A person summoned or nominated to act as a Payment to juror under this Act shall, for his attendance, be entitled inrors-to the same compensation and allowance for his travelling expenses as a juror attending the Supreme Court or a Circuit Court under a general jury precept.

Registrars.31. For every Court the Governor rh U<5

appoint a registrar, who shall be paid by' salary. ^In populous places the Governor-in Gouh'cifo

appoint two persons to hold the office ‘idf re^t^h,Crown Law Officer may make orders as\tG\th^phW their duties and the emoluments of the 6ffi.ce difference between them.

Where two persons are so appointed the death of one does not Vacate the office of the other. R. v. Wake, 27 L. J. Q.B. 11.

As to removal of registrar from office, see R. v. Owen, 19 L. J. Q.B. 490.

JURy Appointment and salary of registrar.

,y [Compare rL 51 & 52 Yic. “ c. 43, ss.25,29,

of 45, 102.]Of

32. The registrar shall sign and issue summonses and Duties of warrants and register the records and judgments, and keep registrar, minutes of the proceedings of the Court, and shall take 51 Teavie. charge of and keep an account of the Court fees and fines payable or paid into Court, and of the moneys paid into ° and out of Court, and shall enter an account of the fees, fines, and moneys, in a ledger to he kept by him for that purpose, and shall, when required, submit his accounts to be audited by the Auditor-General or his officers.

As to summonses, see Index, title Summons.* For other duties, etc., of registrar see Index, title Registrar.

As to minute book, see also s. 12, and rr. 5. 16, and f. IT.As to judgment in various cases, see Index, title Judgment.As to application of fees and fines, see s. 194.Registrar enrols list of assessors under “ The Gold Fields Act 1874,” 38 Vic. No.

11, s. 39 (R. & W. 1572).No mandamus will be issued to registrar requiring him to do any act relating to

the duties of his office, but a rule or summons calling upon him to show cause why the act should not be done may be obtained, s. 151; but before applying for such rule application should be made to the judge to direct him to do it. R. v. Fletcher, 21 L.J’. Q.B. 310 ; Ex parte Christchurch Overseers, 2 L.M. k P. 660; Ex parte Brown, 2 S.C.R. (N.S.W.)83 note ; Ex parte Neville, 12 S.C.R. (N.S.W.) 362.

The registrar is not liable to an action for irregularity in any mere matter of practice not directly imposed by the Act or rules. Robinson v. Gell, 21 L.J. C.P. 155;Ely v. Moule, 20 L.J. Ex. 29.

The registrar is a mere ministerial officer, and is not liable for the part he performs under the Act, although the order of the judge on which he acts is bad. Dews v.Rylay, 20 L.J. C.P. 264. As to warrant being sufficient authority, see s. 45.

When he has given credit to a party for fees, it seems he can maintain an action for them. Batt v. Price, 1 Q.B.D. 264.

# As to the power of the Auditor-General to break and enter the office of the registrar to get at the books, see Burridge v. Nicholetts, 30 L.J. Ex. 145.

Summary conviction for larceny to be transmitted to District Court, and to be kept amongst records by registrar. “Larceny Act of 1865,” 29 Vic. No. 6, s. 117 (P. & W. 332).


Registrar to 33. The registrar shall during the sitting of the Court sheriff?61'11*7 ac^ as deputy sheriff, and exercise the powers and perform

the duties of a deputy sheriff as prescribed by “ The Jury Act of 1867,” so far as the provisions of that Act are applicable.

Minutes of 34. The registrar shall cause a note of the plaints andhe°kept.,DgS<0 summonses, and of the judgments and executions, and

returns thereto, and of the fines and of all other proceedings of the Court, to be fairly entered from time to time in books belonging to the Court, which shall be kept at the office of the Court.

In any action or other proceeding the books, and any entries therein, or copies of the books or entries under the seal of the Court and purporting to be signed and certified by the registrar, shall upon production be primd facie evidence of the contents of the books, or of the entries, and of the proceedings referred to in them, and of the regularity of the proceedings.

[Compare 51 & 52 Yic. c. 43, s. 28.]

Evidence.

Officers of court to keep books, rr. 4, 20.Officers of court not to sign books on behalf of suitors, r. 12.Certificate fro be sealed, s. 8.For form of entries in registrar’s books see r. 4.As to forging seal, see s. 197. .As to documents requiring seal, see Index, title Seal.As to judgment in various cases, see Index, title Judgment.As to evidence of such entries, see R. v. Rowland, 1 F. & F. 72; Dews v. Ryley,

20 L.J. C.P. 204; R. v. Brompton County Court Judge, L.R. 18 Q.B.D. 213, 13 Ap. Cas. 20 ; R. v. Davis, 30 L.J. M.C 159 ; K. v. Roberts, 38 L.T. 090; and compare Bishop r. Woinarski, 1 Y.L.R. (L.) 100 ; Ex parte McEwan, 4 Y.L.R. (L.) 9.

When a 35. When a clerk of petty sessions is appointedsession! tty registrar of a District Court held at the place where he registrar, his i§ clerk, the successor in office of the clerk, or a deputy, or deputrshau a person for the time being performing the duties, of the he registrar, clerk, shall have and may exercise the rights, and powers, 51T52 Vic. and shall perform the duties, of registrar of the District c. 43, s. 3i.] Court, while he is performing the duties of the clerk of

petty sessions:Provided that the provisions of this section shall not

affect the power of appointment hereinbefore vested in the Governor in Council.

As to duty of C.P.S. in connection with jury lists, see ss. 23, 24.

' Bailiffs.As to the several powers and duties of bailiff, see Index, title Bailiff.

Appointment 36. Por every Court there shall be one or more bamffs,ffs and bailiffs, who shall be appointed by the Governor in Council, assistants. A bailiff may be suspended by the Judge.51X52 vie. The bailiff may, by writing under his hand, appoint a c. 43, s. 33 3 sufficient number of fit persons to assist him, and may

dismiss all or any of them and appoint others in their stead.An officer so appointed may also be suspended by the

Judge or suspended or dismissed by a Crown Law Officer.

55 VIC. No. 33. 11

The bailiff shall be responsible for the acts ancl defaults of the officers appointed to assist him.

As to his responsibility for acts or defaults of his officer, see Burton v. Le Gros, 34 L.J. Q.B. 91; cf. Parrot v. Mumford, 2 Esp. N.P.C. 585; Gregory v. Cotterell, 5 E. & B. 571; Smart v. Hutton, 8 A. & E. 568 n. ; Wood v. Finnis, 7 Ex. 3C3; Morris v. Salberg, 37 W.R. 469.

He is not responsible if his officer acts without his authority. Smith v. Pritchard, 8 C.B. 565.

As to his liability where process is served or executed upon wrong person, see Kelly v. Lawrence, 33 L.J. ICx. 197; Davis v. Jenkins, 11 M. & W. 755 : Whalley v. McConnell,19 L.J. Q.B. 162; De Mesnil v. Dakin, L.R. 3 Q.B. 18, 24 ; Price r. Harwood, 3 Camp.108 ; Dunstan v. Paterson, 2 C.B. N.S. 495. Or on the proper person at the wrong time, see Davis v. Fletcher, 22 L.J. Q.B. 429.

As to personal liability of a party, see Cronshaw v. Chapman, 31 L.J. Ex. 277 ;Woollen v. Wright, ib. 513.

37. The death or removal of a bailiff shall not invali- Bailiffs’date the acts of the officers so appointed, but they shall XyM* after continue to act until they are dismissed by the successor the death or to the bailiff or by a Crown Law Officer. baUiffal °f

They shall receive for their services while they so act I Compare after the death or removal of the bailiff the same remunera- e.1^5^1.0]' tion as they were receiving at the date of the death or removal, and such remuneration shall he paid out of the salary and allowances attached to the office of bailiff.

38. The bailiffs or one of them shall, if required by Duties of the Judge, attend every sitting of the Court, and shall, ^compare by themselves or their officers, serve all summonses, and 51 & 52 vie. execute all warrants issued out of the Court; and thec'43,s‘35^ bailiffs and officers shall in the execution of their duties conform to the Rules of Court, and subject thereto to theorder and direction of the Judge of the Court for which they are appointed:

Provided that a summons may be served by the plaintiff or a person employed by him,

As to summonses, see Index, title Summons.As to service in various cases, see Index, title Service.As to power to make rules of court, see s. 191, and r. 197.

aw;

Act

39. A bailiff or other officer duly authorised to execute Bailiff not irrant of execution issued under the authority of this t0

may sell land or goods without taking outauctioneer's license.

take out ail auctioneer’s

license. [Compare 51 & 52 Yic. c. 43. s. 159.]

40. A bailiff shall he paid a salary on account of his Remuneration general duties, and shall also he entitled to receive and®4^®8- retain for his own use the fees mentioned in the Fourth 51 & 52 vie. Schedule to this Act as bailiffs’ fees, unless the Judge in “-643>8S-44> any case otherwise orders. The bailiff shall, out of such [Fourth fees, provide for the performance of the duties for which Si:lu’,hlle-- the fees are allowed, and for the payment of the officers appointed to assist him.

5 The fees received for executing warrants of execution shrill he paid by the registrar to the bailiff upon the issue of the warrant of execution, and the fees for the service of

12 DISTRICT COURTS ACT, 1891

a summons or subpoena sliall be paid by the registrar to the bailiff after sen-ice :

Provided that if in any Court the fees allowed to be taken by a bailiff appear to be more than sufficient to afford him a reasonable remuneration, the Governor in Council may order that a certain specified part only of his fees shall be retained by him, and in that case, and so long as the order is in force, the amount of the residue of the fees shall be accounted for, paid, and applied, in the same manner as all other fees payable to the registrar are accounted for, paid, or applied.

“ The Public Officers Fees Act of 1884,” 48 Vic. No. 5, s. 2 (P. & W. 750), does not apply to bailiffs.

If the bailiff pays into court the whole amount without deducting his costs, it has been held that he cannot afterwards recover them from the execution creditor. Bloor v. Hunston, 24 L.J. C.P. 2G.

execution. [Compare 51 & 52 Vic. c. 43, s. 49.]

Bailiff 41. If a bailiff who is directed to levy execution loseseslaireantf01' V neglect, connivance, or omission, the opportunity of negiectio levy levying the execution, the Judge may, upon complaint of

the party aggrieved, inquire into the matter in a summary way, and for that, purpose may summon and enforce the attendance of the necessary parties in the same manner in which the attendance of witnesses in an action may be enforced, and may order the bailiff to pay such damages as it appears that the plaintiff has sustained, not exceeding in any case the sum of money for which the execution was issued; and the bailiff shall be liable to pay the same.

Upon demand made, and on his refusal to pay and satisfy the damages, payment may be enforced in the manner provided by this Act for enforcing a judgment.

Under s. GO every District Court has jurisdiction throughout the whole of Queensland, but it has been decided that the jurisdiction conferred by s. 41 can only be exercised by a judge over the bailiffs of his own court. R. v. C.C. J. of Shropshire, 20 Q.B.D, 242; R. v. Rogers, 57 L.J. Q.B. 143 ; Ashley v. Norris, 3G W.R. 47G.

As to bailiff’s negligence, see Partridge v. Elkington, L. R. G Q.B. 84.

General 'Provisions relating to Officers..Disabilities of . „ 42. A registrar, or his partner, or a person in the baffiff ar and seryice °f a registrar or his partner, shall not act as bailiff, [Compare and a bailiff, his partner or clerk, or a person in the service c.143&ifIi] or employment of a bailiff or his partner, shall not act as

’ registrar, and an officer of the Court shall not, either by himself or by his partner, be directly or indirectly concerned as solicitor or agent for a party in a proceeding in the Court.

Penalty. Any person committing an offence against this sectionshall be liable to pay the sum of one hundred pounds qnd full costs of action to any person who sues for the same.

Clerk or partner of officer not to act as agent for suitor, r. 12; or become surety, r. 13. ,

The assistant clerk of the court is an officer of the court. Ackroyd v. Gill, 25 L.J. Q.B. 111. !

bam® to" ived 43. Every registrar and bailiff shall give security for security0 ^ such sum, and in such manner, as the Governor in Council

/

Ii

55 VIC. No. 33. 13

orders, for the due performance of their several offices, and [Compare for the due accounting for and payment of the moneys Jo/j received by them under this Act, or which they are liable ’ to pay for misbehaviour in their office.

44. If a registrar, bailiff, or other officer, acting under, Remedies or under colour or pretence, of the process of the Court is ptn^tLson charged with extortion or misconduct, or with not duly bailiffs and paying or accounting for money levied by him under the f^er officers authority of this Act, the Judge may inquire into the matter misconduct, in a summary way, and for that purpose may summon and 5i°& 52Vic: enforce the attendance of the necessary parties in the manner c. 43, ss. 50, provided by this Act for enforcing the attendance of wit-5 '' nesses, and may make such order for the repayment of themoney extorted, or for the due payment of the money levied, and for the payment of such, damages and cos; he thinks just. . f

The Judge may also impose a fine upon the regis|’ bailiff, or other officer not exceeding ten pounds for offence, and, in default of payment of the money so orde: to be paid, payment may be enforced in the manner pro vided by this Act for enforcing a judgment.

45. If an action is brought against a person for any- indemnity to thing done under a warrant issued in pursuance of this underbids11"8 Act, the production of the warrant under the seal of the Act. ^ Court in the action shall be deemed sufficient proof of ,^43*3? 5^]°’ the authority of the Court previous to the issuing of the warrant, and if the plaintiff in the action has a verdict given against him, is nonsuited, or discontinues the action, the defendant shall be allowed full costs as between solicitor and client.

As to stay of action on issue of interpleader summons, see s. ISO.Where a warrant has been issued by order of the judge which he has no jurisdiction

to make and the officials of the court have made a seizure, they are protected by statute from an action for trespass. Aspey v. Jones, (C.A.) 54 L.J. Q.B. 99.

The judge being a judge of a Court of Record is, like every other such jud^e, answerable for an act done by his command when he has no jurisdiction, and is not misinformed as to the facts on which jurisdiction depends. Calder v. Halket, 3 Moo. P.C. 28 ; Kemp v. Neville, 10 C.B. N.S. 523 ; Pray v. Blackburn, 3B. & S. 57G. When, therefore, a District Court judge, under a mistake of law but not of fact, made without having jurisdiction an order committing a plaintiff for contempt, it was held he was liable. Houlden v. Smith, 14 Q.B. 841; Watson v. Bodell, 14 M. & W. 57.

A judge is not answerable at common law or under this Act for any act done or word spoken by him judicially, however irregularly or maliciously. Floyd v. Barker, 12 Rep. 23; Groenvelt v. Burwell, 1 Ld. Raym. 454; Fray i\ Blackburn, ib. ; Scott v. Stansfield, L.R. 3 Ex. 21; Revis v. Smith, 18 C.B. 12G ; and see “ The Defamation Law of Queensland,” 53 Yic. No. 12, s. 11 (P. & W. 3751). .

As to actions against a judge, see also Booth r. Clive, 20 L.J. C.P. 151.No criminal information will lie against judge unless corrupt or malicious motives

can be shown. In re----- 1G Jur. 995; R. v. Marshall, 4 E. & B. 475 ; Ex %>arte Ramshay,18 Q.B. 173.

As to actions against bailiff, see Chamberlain v. King, L.R. G C.P. 474 ; Simmonds v. Henchy, 1G L.R. Ir. 467 ; Burling v. Harley, 27 L.J. Ex. 258 ; Arnold v. Hamel, 23 L.J. Ex. 137; Horn v. Thornborough, 18 L.J. Ex. 349 ; Hermann v. Seneschall, 32 L.J. C.P. 43; Roberts v. Orchard, 33 L.J, Ex. G5; White and Morris, 21 L.J. C.P. 185; Solomons v. Mulcahy, 4 Y.L.R. (L.) 462, 5 Y.L.R. (L.) G4 ; Stevenson v. Tyler, 2 W.W. & A.B. (L.) at p. 182.

As to actions against registrar, see Dews v. Ryley, 20 L.J. C.P. 2G4 ; Robinson v, Gell, 21 L.J. C.P. 155; Andrews v. Marris, 1 Q.B. 3.


Limitation of actions.[51 & 52 Vic. c. 43, ss. 53, 54.]

Privilege. [Compare 51 & 52 Vic. c. 43, s. 175„]

Appearance to be in person or bybarrister, or solicitor, or other person allowed by the judge. [Compare 51 & 52 Vic, c. 43, s. 72,]

46. An action or prosecution shall not be commenced against a person for anything done, or omitted to he done, in pursuance or in contravention of this Act, unless it is commenced within six months after the act committed or , omitted. .

Notice in writing of the action and of the cause of action shall be given to the defendant one month at least before the commencement of the action, and a plaintiff ; shall not recover in the action if tender of sufficient amends is made before action brought, or if, after action brought, : a sufficient sum of money with costs is paid into Court by the defendant.

For the definition of “action” see s. 3. A motion to recover an insolvent’s property is not an action. In re Locke G Times L.R. 384.

Persons are within the protection of this clause, although their act be not legally justifiable, provided they act honestly. Selmes r. Judge, L.R. G Q.B. 724; Gayton v. Rayman, 1 F. & F. 675.

The notice must state distinctly that an action will be brought. Mason v. Birken-^, head Commrs., 29 L.J. Lx. 40G.

Barristers, Solicitors, and Agents.

47. No privilege shall be allowed to a solicitor, or other person to exempt him from the provisions of this Act.

As to barristers and solicitors in this court, see Index, titles Barristers, Solicitors.As to enforcing agreements between solicitor and client as to costs, see 55 Vic.

No. 22, s. 7 (P. & W. 4407).

48. A party to an action or other proceeding under this Act, or a barrister or solicitor retained by or on behalf of the party on either side, or any person allowed by special leave of the Judge in any case, may appear instead of the party, to address the Court, and examine and crossexamine the witnesses, but subject to the Rules of Court and the orders of the Judge for the orderly transaction of the business of the Court: .

But a person, not being a barrister or solicitor of the Supreme Court, shall not be entitled to receive or recover, or receive directly or indirectly, a sum of money or other remuneration for appearing or acting on behalf of another person in the District Court.

Agent may agree not to appeal, s. 148.Agent may sign notice of appeal, r. 165.Agent may serve subpoena, s. 102.Agent may consent to payment by instalments, s. 133.Officer of court not to act as agent, s. 42 and r. 12.No privilege to exempt agent from provisions of Act, s. 47.As to appearance by attorney, see Bookham v. Potter, L.R. 3 C.P. 490; Shreeve?

v. Charlesworth, 18 L.T. 325 ; Giffard v. Unity, etc., Coy., G A.L.T. 159; R. v. Cope, 1 A.J.R. 23.

An unauthorised solicitor cannot recover any costs. Verlander v. Eddolls, 51 L.J. Q.B. 55; Irvin v. Sanger, 58 L.J. Q.B. G4.

55 YIC. No. 33. 15

Part III.—Criminal Jurisdiction and Procedure.Jurisdiction.

49. A District Court shall hare jurisdiction to inquire Districtof, hear, and determine all felonies, misdemeanours, and hayj^mfnai offences, wheresoever committed, save as hereinafter jurisdiction, excepted.

Semble the operation of 52 Vic. No. 4, s. 2 (P. & W. 2580), is superseded.Semble the operation ot 38 Vic. No. 5, s. 220 (P. & W. 985), is now exhausted.When persons are committed to District Court they are not to be discharged on

general gaol delivery, see “ The Justices Act of 1886,” 50 Vic. No. 17, s. 138 (P. & W.1051). ,

As to criminal jurisdiction generally, see s. 7.As to the jurisdiction of the judge under “ The Offenders Probation Act of 1886,”

see 50 Vic. No. 14 (P. & W. 2049).

50. A District Court shall not have jurisdiction to Exceptions try a person charged with any of the following offences :—ju°risdictionnal

(1) Treason;(2) Misprision of treason;(3) A felony punishable with death;(4) A felony which, when committed by a person

not previously convicted of felony, is punishable by penal servitude for life under the “ Offences against the Person Act of 1865;”

(5) Offences against the Queen’s title, prerogative, person, or government, or against either House of Parliament;

(6) Offences subject to the penalties of praemunire;(7) Stealing or fraudulently taking, injuring, or

destroying records or documents belonging to the Supreme Court or relating to any proceeding in the Supreme Court;

(8) Stealing, or fraudulently destroying or concealing, wills or testamentary papers, or any document or written instrument being or containing evidence of the title to land or of an interest in land.

The crimes punishable with death in Queensland are—Murder, 29 Vic. No. 11, s. 1 (P. & W. 339); rape, ib. s. 46 (P. & W. 347); robbery and wounding under arms, 29 Vic.No. 6, s. 44 (P. & W. 314); piracy, where murder attempted, 7 Wm. IV. & 1 Vic. c. 88, s. 2 (P. & W. 3138).

51. The Governor in Council may, by Proclamation, Governor may withdraw from a Court, either absolutely or for a time tobe limited by the Proclamation, the criminal jurisdiction jurisdiction, possessed by the Court, and after three months from the publication of the Proclamation in the Gazette the criminal jurisdiction of the Court named in the Proclamation shall cease.


Procedure.Change of 52. When an accused person is committed for trial toremits. a district Court, not being the Court of the district within

which the offence is alleged to have been committed, a Judge of the Supreme Court or of a District Court, or a Crown Law Officer, may order the trial to be held in the Court of that district, and may make all such orders for the remand and custody of the accused person, and for the extension of his bail or the recognisances of witnesses, as may be necessary:

In any other case the venue may be changed by order of a Judge of the Supreme Court, or of a District Court, who may make the like orders for the purposes aforesaid.

The Judge of a District Court may, at any stage of a criminal trial depending in his Court, order that the trial take place at another Court, subject to such conditions as he thinks fit, and may remand the accused in custody or on bail to that Court.

As to venue in civil cases, see ss. 92, 101, and ff. 43, 44.

Proceeding by 53. Felonies, misdemeanours, and offences, cognizable m oimation. a Court may be tried by information in the

name of a Crown Law Officer, or such other person as the Governor in Council appoints, who shall respectively perform the duties of a grand jury.

Issues of law joined on the information shall be determined by the Judge (and in error by the Supreme Court), and issues of fact shall be tried before the Judge and a jury of twelve men, as next hereinafter provided.

The person in whose name an information is presented may enter a nolle prosequi upon the information.

As to question of law in civil cases, see ss. 106, 127, 129, 145, 159, and r. 156.

Jury in 54:. Felonies, misdemeanours, and offences prosecutedenmmaicases. {p,e Court shall be tried by a jury of twelve men, to be

chosen, returned, summoned, and sworn, as by lawr for the time being is provided for the choosing, returning, summoning, and swearing, of common jurors for the trial of criminal issues in the Supreme Court.

As to jury generally, see ss. 23 to 30.As to insulting a juror, see s. 198.

55. The registrar may issue subpoenas in criminal cases for the attendance of witnesses at the trial of a person committed for trial at the Court of which he is registrar, or at another Court, whether an information has been presented against such person or not.

A person disobeying a subpoena shall be liable to the same consequences as for disobedience to a subpoena issued in a civil proceeding under the authority of this Act.

Registrar may issue subpoenas.

55 VIC. Ho. 33. 17

Part IV.—Civil Jurisdiction.Jurisdiction as to Subject-Matter.

56. All personal actions in which the amount claimed is not more than two hundred pounds, whether on a balance of account or after an admitted set-off or otherwise, may be commenced in a District Court; and in an action for recovery of a balance of account, the Court shall have jurisdiction, if the original claim is reduced to two hundred pounds or less, by payment or otherwise, or by deducting any sum for which the plaintiff gives the defendant credit upon the plaint being entered.

But, except as hereinafter provided, a District Court shall not have jurisdiction to try any case in which the title to land, or the validity of a devise, bequest, or limitation under a will or settlement, is in question :

If the title to land incidentally comes in question in an action, the Court shall have power to decide the claim which it is the immediate object of the action to enforce, but the judgment of the Court shall not be evidence of title between the parties or their privies in another action in that Court, or in any proceedings in another Court.

As to civil jurisdiction generally, see s. 7.Court has no jurisdiction as to certain offences with respect to wills or with respect

to documents containing evidence of title to land, s. 50.As to costs where court has no jurisdiction, see s. 124.As to jurisdiction on appeals, see ss. 15G to 159, and notes thereto.As to consent jurisdiction, see s. 61. As to striking1 out where no jurisdiction and

where parties do not consent to court having jurisdiction, see s. 124.Statutory Jurisdiction.—Judge approves rules of Small Debts Court. “Small Debts

Act of 1867,” 31 Vie. No. 29, s. 15 (P. & W. 1099).Action against Divisional Board for negligence to be tried in District Court. “ The

Divisional Boards Act of 1887,” 51 Yic. No. 7, s. 281 (P. & W. 144S).For case see Bunclanba D.B. v. Ballin, 1 Q.L. J. 175.Court has original jurisdiction as to mineral lands. “ The Mineral Lands Act of

1882,” 46 Yic. No. 8, s. 36 (P. & W. 1603). 'Judge may be appointed to investigate accidents on railway,. “ The Bail ways Act

0/1888,” 52 Yic. No. 8, s. 45 (P. & W. 2614).Judge maybe chairman of registration court, under “The Elections Act of 1885,”

49 Vic. No. 13, s. 11 (P. & W. 644).Local Authority may sue for demand, under “ The Health Act of 1884,” not

exceeding <£200, 48 Yic. No. 17, s. 135 (P. & W. 856). •As to jurisdiction in nuisances, see s. 83 (P. & W. 844).As to jurisdiction in employers liability cases, see “ The Employers Liability Act of

1886,” 50 Yic. No. 24, s. 10 (P. & W. 1526).An action commenced in the Supreme Court under this Act was dismissed with

costs for want of jurisdiction. Pritchard v. Howard Smith & Sons, Limited, 4 Q.L. J. 64.As to jurisdiction in case of Government annuities and assurance, see 29 Yic. No. 18,

s. 10 (P. & W. 12).A% to jurisdiction under “ The Insolvency Act of 1874,” see 38 Yic. No. 5, ss. 4, 9 to

13, 15, and 185 (P. & W. 935 et seq.).As to jurisdiction under “ The Bankers' Books Evidence Act 1879,” see 43 Vic. No. 7,

ss. 2 and 7 to 9 (P. & W. 724, 725).As to jurisdiction to try actions for illegal seizures under “ The Customs Act 1873,’

see 37 Vic. No. 1, ss. 266 to 268 (P. & W. 472).As to limited jurisdiction of District Court on goldfield, see 38 Yic. No. 11, s. 83

(P. & W. 1581).C

In personal actions. [Compare 51 & 52 Yic. c. 43, ss.56, 57, 60, 61.]

Cm

vI'-

jS


As to goldfields warden stating special case for opinion of judge, see “The Gold Fields Act 1874,” 38 Vic. No. 11, s. 59 (P. & W. 1577). .

The complainant in an action testing the legality of the forfeiture of stares in a gold mining company should take proceedings in the Supreme Court under “The Companies Act 1863,” 27 Vic. No. 4. District Court has no jurisdiction given to it by “ The Gold Fields Act of 1874,” or otherwise, to entertain such an action. South N.Z. S-.M. Co. v. Bullen, 1 Q.L.J. 50.

As to conferring admiralty jurisdiction on District Court, see 53 and 54 Tic. c. 27, s. 3 (P. & W. 4150). _

Court has no jurisdiction as to salvage. Queensport Aquarium Company v. Graziers’ Butchering Company, per Paul, J., Brisbane Courier, 30th June, 1892.

Actions for compensation under “ The Mines Regulation Act of 1889 ” are to be brought in District Court. 53 Vic. No. 7, s. 27 (P. & W. 3789).

As to winding-up a company in District Court, see 53 Vic. No. 18, ss. 44 to 46 (P. & W. 3737).

As to jurisdiction where agreement between solicitor and client as to costs, see “ The Solicitors Act, 1891,” 55 Vic. No. 22, s. 7 (P. & W. 4407).

As to jurisdiction under “ The Married Women’s Property Act, 1890,” see 54 Vic. No. 9, s. 21 (P. & W. 4047). # ^

Want of Jurisdiction.—As to mandamus where judge decides he has no jurisdiction, see R. v. Richards, 20 L.J. Q.B. 352; In re Milner, 15 Jur. 1038; R. v. Dunne, Ex parte Baillie, 3 A.J.R. 110.

_ Where want of jurisdiction appears on plaint judge has no power to amend so as to bring case within his jurisdiction. Hopper v. Warburton, 32 L.J. Q.B. 104 ; Knipe v. Belson, 5 V.L.R. (L.) at 407 : e.g., judge cannot alter the amount by adding abandonment of excess so as to bring it within the jurisdiction. Hill v. Swift, 24 L.J. Ex. 137 ; quaere, whether he may do so with the defendant’s consent. Avards v. Rhodes, 8 Ex. 312; North v. Holroyd, L.R. 3 Ex. 69.

Title to Land.—Judge to have jurisdiction as to title to land, and an equitable jurisdiction on goldfield. 38 Vic. No. 11, s. 82 (P. <fc W. 1581)._ . Mere assertion of title is not sufficient to oust jurisdiction. The judge shouldinquire and decide if the claim of title is genuine. Lilley v. Harvey, 17 L.J. Q.B. 357 ; Wickham v. Lee, 12 Q.B. 521; Emery v. Barrett, 27 L.J. C.P. 216; Tinniswood v. Pattison, 3 C.B. 243 ; Ex parte McEvoy, 8 S.C.R. (N.S.W.) 16.

But see Marsh r. Dew^es, 17 Jur. 558.If the question of title appears on the face of the proceedings no further inquiry is

necessary. Timothy v. Farmer, 7 C.B. 814.In cases of replevin for recovery of distress for rent, if the question of title arise

qLucre has the court jurisdiction ?In England it has been decided that it has. R. r. Raines, 1 E. & B. 855; R. v.

Harden, 2 E. & B. 189 ; Hertford Union v. Kimpton, 11 Ex. 295 ; Fordham v. Akers, 33 L.J. Q.B. 67 ; Tummons v. Ogle, 25 L.J. Q.B. 407. But these decisions are founded on 9 and 10 Vic. c. 95, s. 121, and 19 and 20 Vic. c. 108, s. 67, which are not contained in our Act.

The claim set up must be valid in law. Hargreaves v. Diddams, L.R. 10 Q.B. 582 ; Reece v. Millar, 8 Q.B.D. 626; Lloyd v. Jones, 6 C.B. 81.

As to appeal where judge decides wrongly, see Elston r. Rose, L.R. 4 Q.B. 4; Thompson v. Ingham, 19 L.J. Q.B. 189 ; Crowley v. Vitty, 21 L.J. Ex. 135 ; In re Knight, 1 Ex. 802; Ex parte Yeomans, 8 S.C.R. (N.S.W.)93; Ex parte Forlonge, 2 S.C.R. N.S. (N.S.W.) 28.

Where title to land is disputed the judge must dismiss the ease. Lawford r. Partridge, 26 L.J. Ex. 147.

If the judge has taken evidence on the question, semble no fresh evidence will be’ entertained by Supreme Court. Turner r. Nicholson, 1 S.C.R. (N.S.W.) 171; Ex parte Baillie; 5 S.C.R.'(N.S.W.) 24'................................... '

Question of title to land was held to arise in following cases : Mountney r. Collier,. 22 L.J. Q.B. 124; Chew v. Holroyd, 22 L.J. Ex. 95; Whiting t. Bennett, 1 S.C.R. N.S. (N.S.W.) 160. .

As to title, see also note to s. 137.# # Personal actions include actions of contract and tort. The civil jurisdiction of the.

District Court is similar to that of the Supreme Court in personal actions within the prescribed amount and subject to the express exceptions.

Balance of Account.— By these words are meant cases where the parties have struck, and ascertained a balance in consequence of cross claims, payments on account, or otherwise. Woodhams v. Newman. 18 L.J. C.P. 213 ; Turner Barry, 20 L.J. Ex. 89.

The set-off must be admitted at the time action is brought. Woodhams v. Newman,. supra ; Avards v. Rhodes, 22 L.J. Ex. 106; Walesby v. Goulston, L.R. 1 C.P. 567; Beswick v. Capper, 18 L.J. C.P. 216 note; Beard v. Perry, 31 L.J. Q.B. 180; Kimpton v. Willey, 19 L.J. C.P. 268; compare Osborne v. Homburg, 1 Ex. D. 48. The existence of the set-off must be admitted'by both parties. Hubbard v. Goodley, L.R. 25 Q.B.D. 156.

In Percival v. Pedley, L.R. 18 Q.B.D. 635, Mathew and Cave, J.J., held on the construction of a similar section that if the set-off were admitted by the plaintiff jurisdiction would be conferred on the inferior court, although the set-off was not agreed to before action ; and see Foster v. Uslierwood, 3 Ex. D. 1.

Or otherwise.— These words must mean when the whole claim, without any balance- of account or set off, dues not exceed «£200.

55 YIC. No. 33. 19

Amount Sued For.—In Symons v. Rees, L.R. 1 Ex. D. 416, it was held that the judgment of the judge as to the amount is conclusive.

When it is objected that the subject-matter of a suit exceeds the jurisdiction of the court, the onus of substantiating that defence lies on the defendant who raises it. Martin r. Keane, 4 Y.L.R. (E.) 115.

Patent.—The District Court has no jurisdiction to try an action for the infringement of a patent where the validity of the patent is in dispute. Reg. v. Judge of the Halifax County Court (1891), 2 Q.B. 263.

57. A District Court shall have jurisdiction to try in cases of any action brought to recover a sum not exceeding twoP“rt“0rs,up> iiunclred pounds, which is the whole or part of the unliqui- and legacy, dated balance of a partnership account, or the amount or ^XITvic part of the amount of the distributive share under an c. 43, s. 58.] intestacy or of a legacy under a will.

As to service on partner, see r. 58. As to suing, &c., in name of firm, see rr. 85, 86.

One partner cannot sue another under this section during the continuance of the partnership. Ex parte Lawry, 7 S.C.R. (N.S.W.) 184.

The plaint must be drawn so as to show on the face of it that an unascertained balance of a partnership account or a legacy is claimed. Wyse v. Heggarty, 3 S.C.R.(N.S.W.) 179. ^ j 5

This section does not allow District Courts to entertain a question of pure trust.Pears v. Wilson, 6 Ex. 833; Beard v. 'Hine, 10 W.R. 45; Fuller v. Mackay, 22 L.J. Q.B.415. Under a plaint for a legacy a question of devastavit may be tried. Winch v. Winch,13 C.B. 128 ; see also r. 102.

A .bequest, though made in terms to an executor in trust, may be recovered under this section if the executor has really 110 more to do than he would be bound to do on a simple bequest to a legatee. Pears v. Wilson, supra ; fuller v. Mackay, supra.

Grant of letters of administration is an essential part of the cause of action.Fuller v. Mackay, supra.

As to cases not within the section, see Phillips v. Hewston, 11 Ex. 699 ; Longbottom v. Longbottom, 8 Ex. 203; Neighbour v. Brown, 26 L.J. Ch. 670; Ratcliffe v. Winch,22 L.J. Ch. 915.

58. In any case in which a person has an equitable Equitable claim or demand against another person in respect of which ^™®rfor the only relief sought is the recovery of a sum of money damages, or of damages, whether liquidated or unliquidated, and 51^52 vjc. the amount claimed is not more than two hundred pounds, c. 43, s. 67.] the person seeking to enforce the claim or demand maysue for and recover it in a District Court.

As to plaint in equitable claim, see s. 63.. As to pleading equitable claim by way of set-off, see g. 6.9. ... ..............................

As to defence on equitable grounds, see ss. 70, 71, and rr. 66, 67.

59. The jurisdiction given to District Courts by the Extension of “Distress Replevin and Ejectment Act of 1867”* in actions iurisdjcti.on of replevin shall extend to all cases relating to distresses [Compare for rent between landlord and tenant, in which the rent, 5s2 ^j0,- for or in respect of which the distress is or might have been ’ made, does not exceed the sum of one hundred pounds.

As to replevin, see also rr. 32, 33.For the jurisdiction of the court in respect of real property, see Index, title Land.As to meaning of “landlord,” see s. 3. The action should be brought in the court

of the district within which the distress was taken.

Jurisdiction as to Locality.60. Every District Court shall have jurisdiction Limits of the

throughout the whole of Queensland : jurisdiction.

► 31 Vic. No. 16 "(P'r* wTsiuj!


[Compare Provided that a defendant shall not be compellable to jcX43 ? 74°j appear except at some one of the following Courts, that is j

’ ’ ' to say— j(1) The Court of the district within which the j

defendant, or one of two or more defendants, as : the case may he, resides or carries on business; or ]

(2) The Court of the district within which the : cause of action or claim, either wholly or in : some material point, arose; or

(3) The Court of the district within which by an engagement or promise in writing given by the defendant a debt or sum of money is made payable:

This proviso does not apply to summonses for final judgment returnable at Brisbane or Townsville or any other place appointed by the Governor in Council as a place at which judgment summonses may be made returnable under Part V. of this Act.

Corporations and joint stock companies which have an office or place of t business at which they carry on business in Queensland shall be amenable to the jurisdiction of District Courts, whether they are constituted under the laws of Queensland or not.

As to service of summons on company, see s. 05.As to final judgment summonses, see ss. 04, 05, 75 to 92, Schs. ii. and iii, rr. 45 to

47, 04, 09, 73, 79 to 81, and ff. 8, 9, 29 to 31.Semble that the District Court, being a .court of inferior jurisdiction, is precluded

from trying causes of action arising out of the colony. Peacock v. Bell, 1 Saund. 74c£; Walsh v. Ionides, 22 L.J. Q.B. 137. Although s. 5 of the Victorian County Court Act is somewhat differently worded, the following cases may be consulted:—Crook v. Smith,4 V.L.R. 95; Greviile v. Smith, K. & B. 370; Chapman v. Scheidmayer, 1 A.J.R. 115; Green v. Lewis, 4 V.L.R. (L.) 197 ; Powell v. Gidney, 5 V.L.R. (L.) 20 ; Brooks v. Howard Smith & Sons, Ltd., 10 A.L.R. 245.

Residence.—As to residence, see Bailey v. Bryant, 1 E. & E. 340, 28 L.J. Q.B. 80; Butler v. Ablewhite, 28 L.J. C.P. 292; Pilgrim v. Knatchbull, 24 L.J. C.P. 257; MacDougall r. Paterson, 21 L.J. C.P. 27; Beal v. Eord, L.R. 3 C.P.D. 73; Kerr v. Haynes, 29 L.J. Q.B. 70; Sheils v. Rait, 18 L.J. C.P. 120 ; Dunstan v. Paterson, 28 L.J. C.P. 97 (temporary residence in gaol); Powell v. Guest, 34 L.J. C.P. 09 ; Ford v. Drew, L.R. 5 C.P.D. at p. 04 ; Beal v. Town Clerk of Exeter, L.R. 20 Q.B.D. 300; Alexander v.

....................... Jones, L.R..1 Ex. 133, 35 L.J. Ex.. 78.(no permanent residence); Taylor v. Crowlands GasCo., 24 L.J.. Ex. 233 (by corporation); Keynsharn Lime Co. v. Baker, 33 L.J. Ex. 41; Haggin v. Comptoir d’Escompte, 37 W.R. 703 (by foreign corporation). Colonial cases:—Ex parte Asher, 4 S.C.R. (N.S.W.) 71 ; Ex parte Baillie, 5 S.C.R. (N.S.W.) 17; Ex parte Broughton, 1 Knox 189; Ex parte Pollard, 2 S.C.R. (N.S.W.) 192. The court has jurisdiction even if the defendant be not within the district when he promises to pay the amount. Taylor v. Nicholls, L.R. 1 C.P.D. 242; Williams v. Waring, 10 B. & C. 2; Masters v. Barretto, 19 L.J. C.P. 50 ; Exon Russel, 4 M. & S. 505; Blake ■v. Beaumont, 4 M. & G. 11.

To found a jurisdiction the residence of the defendant refers to the time of the issue of the summons. A person is considered to reside at his usual place of abode, and not _ where he may be temporarily staying. The animus revertendi of the party is a strong index in deciding the question of residence. Robinson v. Searson, G M. & G. 762.

Carrying on Business.—See, as to carrying on business by clerk or servant, Buckley v. Hann, 19 L.J. Ex. 151; Sangster v. Cave, 19 L.J. Ex. 431 (s.c. nomine, Glennie v. Delmar, 1 L.M. &P. 402); Lewis v. Graham, L.R. 22 Q.B.D. 1; Rolfe v. Learmouth, 19 L.J. Q.B. 10. By professional man, Mitchell v. Hender, 23 L.J. Q.B. 373. By corpora-

• tion, Keynsharn Lime Co. r. Baker, 33 L.J. Ex. 41; Corbett v. General Steam Co.,28 L.J. Ex. 214; Oldham Building Co. v. Heald, 33 L.J. Ex. 23G; Aberystwith Pier Co. v. Cooper, 35 L.J. Q.B. 44. By firm, Bailley v. Godwin, 33 Ch. D. G04; Weatherley v. Calder, 61 L.T. 508. By railway company, Minor v. Lond. & N.W. Ry., 26 L.J. C.P. 39; Adams v. G.W. Ry. Co., 30 L.J. Ex. 124; Brown v. Lond. & N.W. Ry.,4 B. & S. 326; Shiels v. G.N. Ry., 30 L.J. Q.B. 331; Le Tailleur v. S.E. liy., L.R 3 C.P.D. 18. By contractor, Gorslett v. Harris, 29 L.T. 75.

55 YIC. No. 33. 21

As to a company carrying on business in Queensland, see Pritchard v, Howard Smith & Sons, Ltd., 4 Q.L.J. G4, and the cases cited there.

As to meaning of “cause of action” see Read v. Brown, L.R. 22 Q.B.D. 128 J Jackson v. Spittall, L.R. 5 C.P. 542; Sichel v. Borch, 2 H. & C. 954; Allhusen r* Malgarejo, L.R. 3 Q.B. 340; Durham v. Spence, L.R. 6 Ex. 4G; Cherry r. Thompson* L.R. 7 Q.B. s. 73 ; Vaughan v. Weldon, L.R. 10 C.P. 47.

Material Point.—Either .the making of a contract or the breach of it is a material part of the cause of action under the contract. Banque de Credit Commercial v. De Gas, L.R. G C.P. 142 ; Cooke v. Gill, 8 C.P. 10G. Compare Wirth v. Austin, L.R. 10 C.P. G89.

As to offer being a material point. Cowan v. O’Connor, L.R. 20 Q.B.D. 640; Newcombe v. De Roos, 29 L.J. Q.B. 4; Aris v. Orchard, 30 L.J. Ex. 21; Rennie r. Ratcliffe, 35 L.T. 833; R. v. .Rogers, 3 Q.B.D. 28; Bennett r. Cosgriff, 38 L.T. 177; Green v. Beach, L.R. 8 Ex. 208. Contra, Taylor v. Jones, 1 C.P.D. 87 ; R. r. Holmes, 12 Q.B.D. 23.

Acceptance of proposal or offer is a material point. Bullen v. Hooper, 2 V.R. (L.) 108 ; Jackson v. Grimley, 33 L.J. C.P. 238.

Acceptance of order is a material point. Borthwick v. Walton, 24 L.J. C.P. 83* See also Jackson v. Beaumont, 24 L.J. Ex. 301; Gold v. Turner, L.R. 10 C.P. 149; Green v. Beach, L.R. 8 Ex. 208.

As to effect on jurisdiction of place of delivery, see Kemp v. Clark, 12 Q.B. G47; Green v. Lewis, 4 V.L.R. (L.) 197; Flower v. Jackson, 1 W. & W. (L.) 42; Arndt r. Porter, 30 L.J. Ex. 19; Gold v. Turner, L.R. 10 C.P. 149; Re Wilts Iron Co., L.R. 3 Ch. 443; Taylor v. Jones, L.R. 1 C.P.D. 87 ; Wood v. Perry, 18 L.J. Ex. 1G1; Bosney r. Wordsworth, 25 L.J. C.P. 205 ; Norman v. Marchant, 7 Ex. 723.

As to effect on jurisdiction of place of constructive delivery, see Smith r. Hudson, G B. & S. 431; Norman v. Phillips, 14 L.J. Ex. 30G; Borthwick v. Walton, 24 L.J. C.P. 83 ; Aris v. Orchard, supra; Ex parte Rosevear Clay Co., 11 Ch. D. 560.

As to delivery to carrier, see Flower r. Jackson, 1 W. & W. (L.) 42.As to delivery by carrier, see Arndt v. Porter, 30 L.J. Ex. 19.As to place of performance of work under contract, see Ellis v. Fleming, L.R. 1

C.P.D. 237; Rennie v. Ratcliffe, 35 L.T. N.S. 833 ; Barnes v. Marshall, 21 L.J. Q.B. 388 ; Hernannan v. Smith, 24 L.J. Ex. 175 ; Copeman v. Hart, 33 L.J. C.P. 107; Grimby v. Akroyd, 1 Ex. 479.

As to what are material points in actions on bills of exchange, etc., see Worth v. Austen, L.R. 10 C.P. 089; Cooker. Gill, L.R. 8 C.P. 107; Sewell v. Chetham, L.R. 9 C.P. 410; Huth r. Long, 19 L.J. Q.B. 325; Roff r. Miller, 19 L.J. C.P. 278 ; Mills r. Best, 19 L.J. Q.B. 328; Trevor r. Wilkinson, 31 L.T. N.S. 731, C.P.

As to what are material points in actions on account stated, see Grundv r. Townsend, 30 W.R. 531; Taylor v. Nicholls, L.R. 1 C.P.D. 242; Evans r. Nicholson" 32 L.T. N.S. 778 ; Wallace r. Allan, 44 L.J. C.P. 351. Compare Dunlop r. Higgins, 1 PI.L. Cas. 381; Household Fire Insurance Co. r. Grant, 4 Ex. D. 216 ; Newcombe r. De Roos, 29 L.J. Q.B. 4.

Assignment of debt is a material point. Read r. Brown, L.R. 22 Q.B.D. 128.The merits of each case must determine what constitutes a material point of the

cause of action.

Consent Jurisdiction.61. If both parties agree, by a memorandum signed consent

by them or by their solicitors, that any specified District jurisdiction. Court shall have jurisdiction to try any action which might siTstvic. be brought in the Supreme Court, that District Courtc- 43>s- 64-l shall have jurisdiction to try the action.

The memorandum shall state that the parties signing it know that the action was not within the jurisdiction of the District Court without such consent, and shall be filed with the registrar at the time when the plaint is entered.

. For form of agreement to consent, see f. 3.As to consent to try interpleader summons where rules not complied with, see r. 177.As to practice in consent jurisdiction, see r. 34.As to costs in Supreme Court where action could not be brought in District Court

without consent of defendant, see s. 127.As to action including suit, see s. 3.If the consent order is not drawn up, the position of the judge is that of an

arbitrator, and no appeal lies from his decision. Pearce v. Winkworth, 28 L.T. N.S. 710.If the court has no jurisdiction and the parties do not consent, the action will be

struck out and costs may be awarded, s. 124.| This would appear to include equitable actions. Equitable claims for debt or damages where amount claimed does not exceed <£200 may be brought in District Court,

,s. 58.i


Action commenced by plaint. [51 & 52 Yii c. 43, s. 73.]

Summons.

Plaint whenequitableclaim.

Special indorsement of summons when claim liquidated.

Part V.—Civil Procedure.Plaint and Simmons.

62. On the application of a person desirous of bringing an action in a District Court, the registrar shall enter in a

• book to he kept for the purpose in his office a plaint in writing, stating the names and the last known places of residence of the parties and the substance of the action intended to be brought. The plaints shall he numbered in every year according to the order in which they are entered.

Upon the plaint being entered, a summons stating the substance of the action and the time for filing a notice of defence, and bearing the number of the plaint on the margin, shall be issued under the seal of the Court in the prescribed form, and shall he served on the defendant at the prescribed time and in the prescribed manner.

A misnomer or inaccurate description of a person or place in a plaint or summons shall not vitiate the same, if the person or place is described as commonly known.' As to issues under “The Equity Procedure Act of 1873” ordered to le tried in District Court, see 37 Vic. No. 3, ss. 88 to 90 (P. & W. 1910).

As to summonses, see Index, title Summons.As to plaints, see also Index, title Plaint.As to misdescription in affidavit, see r. 137.

63. In an action in which a plaintiff seeks to enforce an equitable claim under the provisions of this Act, the plaint or so much of it as relates to the equitable claim shall express that the plaintiff is suing upon equitable grounds.

As to jurisdiction over equitable claims, see s. 58.As to equitable defences, see ss. 69, 70, 71, and rr. 66 and 67.

64. In an action in which the plaintiff seeks only torecover a debt or liquidated amount of money payable by the defendant with or without interest, arising— j

(1) On a contract express or implied (as for instance on a bill of exchange, promissory note, cheque, or other simple contract debt);

(2) On a bond or contract under seal for payment of a liquidated amount of money;

(3) On a statute when the sum sought to be recovered is a fixed sum of money or in the nature of a debt; or

(I) On a guaranty, whether under seal or not, when the claim against the principal is in respect of a debt or liquidated demand only—

the summons issued upon the plaint being entered may be indorsed with a special indorsement in the form or to

55 YIC. No. 33. 23

the effect in the Second Schedule to this Act, and with the second particulars of the amount sought to he recovered afterSc,iedule- giving credit for any payment or set-off.

The particulars may he indorsed to the effect of such of the particulars of claim in the Second Schedule to this Act as are applicable.

The summons may also be indorsed with a claim for the prescribed sum for costs, exclusive of Court fees and mileage, and shall state that upon payment of the amount claimed in respect of the cause of action and for costs respectively within the time prescribed for filing a notice of defence further proceedings will be stayed.

Promissory note, bill of exchange, and cheque are included in term “goods,” s. 3.Parties to promissory note or bill of exchange may be joined as defendants, r. 84.As to negotiable instruments being taken in execution, see s. 167.As to final judgment summonses, see also ss. 60, 65, 75 to 92, Schs. ii. and iii., rr. 45

to 48, 64, 69, 73, 79 to 81, and ff. 8, 9, and 29 to 31.This section is almost identical with Order III., rr. 6 and 7, under the Judicature

Act (P. & W. 1928), and it is conceived that the practice in the District Court will follow the decisions of the Supreme Court as far as they are applicable. The following note is adapted from Snow, Burney, and Stringer’s Annual Practice, 1892, pp. 200 et seq.:—

Special Indorsement.—No indorsement is special unless solely confined to claims mentioned in the section (cf. Rogers v. Hunt, 10 Exch. 474; Connolly v. Teeling,12 Ir. C.L.R. App. 29); thus, summons indorsed with claim for amount due on covenant in mortgage deed and for foreclosure is not specially indorsed (Hill v. Sidebottom, 47 L.T.224; Imbert Terry v. Carver, 34 Ch. D. 506); so, if summons be indorsed for specific sum and injunction (Yeatman v. Snow, 28 W.R. 574); so, where indorsement is for rent and dilapidations (Clarke v. Berger, 36 W.R. 809). As, however, a mortgagee is entitled to pursue all his remedies at the same time, a previous action to realise his security is—before judgment therein—no bar to a subsequent action on the covenant in the mortgage deed for payment of principal and interest; and, unless such subsequent action be stayed, an application for summary judgment may be therein entertained (Bourke v. Donaghue,20 L.R. Ir. 324).

Particulars.—As to particulars, see also rr. 9, 67, 70, 150, 152, 177, and 203.The amount claimed is the demand as disclosed by the particulars, not the sum

total entered on the summons. Apothecaries Coy. v. Burt, 1 L.M. & P. 405.Judge may correct error in the addition of items of particulars, and the correct result

is the claim. North v. Holroyd, L.R. 3 Ex. 69.Where there are several counts in the particulars, it is unnecessary that the amount .

of damages sought on each count should be separately specified. Ex parte Conway,7 S.C.R. (N.S.W.) 209.

The particulars should be such as a reasonable man would require to enable him to know against what he has to defend himself. Rennie v. Beresford, 15 M. & W. .83;Harris v. Montgomery, 2 L.M. & P. 427; Richardson v. Silvester, L.R. 9 Q.B. 34.

They should be as specific as possible. Pritchard v. Nelson, 16 M. & W. 772.‘ Particulars of credits allowed by the plaintiff should be set out.' Hodden r. ' '

Corston, 5 C.P.D. 17.Particulars containing inaccuracies by which the opposite party might reasonably

have been misled are bad. Clarke v. Stancliffe, 7 Ex. 439.After giving notice of defence, it has been held that the defendant cannot object to

the sufficiency of the particulars. Wedlake r. Sargent, 15 Jur. 1134; Jones v. James,19 L.J. Q.B. 257.

As to amendment of particulars, see note to s. 131.Debt or Liquidated Amount.—The words “debt or liquidated amount ” seem properly

applicable to a definite sum of money, Gurney v. Small (1891), 2 Q.B. 584 ; they do not extend to money claims only recoverable in a Court of Equity (Bailey r. B., 13 Q.B.D.855 ; Chalk v. Tennant, 57 L.T. 598), nor to unliquidated damages, whether in tort or in contract, even though the measure of such damages be named at a definite figure (Knight v.Abbott, 10 Q.B.D. 11). Therefore a claim for balance of purchase money due under an agreement where defendant refuses to complete the purchase cannot be made subject of special indorsement (Leader v. Tod-Heatley, W.N. (91), 38). They include money recoverable as liquidated damages whether by statute or by agreement of the parties (Yon Lederer v. Burton, 87 L.T. Jo. 316; Leader v. Tod-Heatley, supra).

Quantum Meruit.—It has been assumed in certain English ca«es (Runnacles r.Mesquita, 1 Q.B.D. 416; Phillips?5. Harris, W.N. (76) 54; and decided in certain Irish cases (Stephenson v. Weir, 4 L.R. Ir. 369; Kilgariff r. McGrane, 8 L.R. Ir. 351 ; Whelan v. Kelly, 14 L.R. Ir. 387), that a claim for reasonable remuneration not expressly ’fixed by contract for work done is within the expression “ debt or liquidated amount.” This result is at variance with several ably reasoned judgments on the corresponding words in the Irish C.L.P.A. 1855 (Connolly v. Teeling, supra), and is otherwise open to objection.


As to work done by solicitor, see Smith r. Edwardes, 22 Q.B.D. 10; Cullen v. Moran, 2 Ir. Jur. N.S. 28; and Shortal v. Farrell, Ir. R. 3 C.L. 50G: Smith r. Edwardes followed, Zahelr. Buchan, 3 Q.L.J. 124.

With or Without Interest.—According to the interpretation put upon the corresponding provision in the C.L.P.A. 1852 (15 & 16 Yic. c. 76, s. 25), the interest here referred to is interest in the nature of a liquidated demand, not interest in the nature of damages (Rodway v. Lucas, 10 Exch. 667, 673). As, however, r. 6 only contemplates the indorsement of a claim, a summons which purports to be specially indorsed, will not be deprived of that character by the inclusion of an item for interest which may in fact be of unliquidated nature, so long as such nature be not apparent, or established in evidence {ibid.). This point has received much consideration in the English Courts recently. Rodway r. Lucas, 10 Ex. 667; Ryley v. Master; Sheba Gold Mining Co. v. Trubshawe (1892), 1 Q.B. 674; Wilks v. Wood, ib. 684 ; London, etc. Bank v. Clancarty, ib. GS9; Lawrence v. Willcocks, ib. 696.

Where a writ was specially indorsed for money due on calls for shares and interest, it appeared from an affidavit that the interest claimed was payable under a contract, inasmuch as the articles of association of the company, to which the defendants had subscribed, stipulated for such interest; but it was held, per Mathew and Smith, J.J., that the contract on which interest is payable must appear on the indorsement, otherwise the writ is not specially indorsed under 0. III., r. 0. Gold Ores Reduction Co. Ld. v. Parr (1892), 2 Q.B. 14. Queensland cases on the same point are Swanwick v. Ranken, 4 Q.L.J. 178; A. Martin & Co. v. Perkins, ib.; Caledonia United Gold Mining Co. v. Mann, ib. 179.

Interest properly the subject of special indorsement, and therefore recoverable under s. 77, usually arises by express contract; it is also sometimes given by particular statutes, e.g. “The Bills of Exchange Act of 1884 *’ (48 Vie. No. 10, ss. 9 (3), 58 (P. & W. 727, 741)). Unless expressly made payable on the face of the instrument, interest on a bill of exchange or promissory note can only be claimed by way of damages {Ex parte Charman, W.N. (87) 184), but those damages are by the Act of 1884 to be deemed liquidated damages (s. 58), and as such fall within the wording of s. 64.

On a Contract.—Money due on an architect’s or other final certificate, given pursuant to contract for work done, etc., is within s. 64 (Meade v. Mouillot, 4 L.R. Ir. 207).

Bill of Exchange, Promissory Note, Cheque, Ac.—A post-dated cheque is legally valid (Carpenters. Street, 6 Times L.R. 410). As to marking cheques “not negotiable,” see National Bank v. Silke, 60 L.J. Q.B. 199.

Simple Contract Debt.—Any definite sum of money recoverable at common law on express or implied agreement is within s. 64 ; thus, in general, money due on the common counts, as—had and received—or paid—or lent—on account stated—is within the rule, but not, it would seem, money claimed on a mere quantum meruit.

Money Paid by Surety.—The debt and costs which a surety has been compelled to pay by default of the principal debtor, is the subject of a claim for money paid, and may be specially indorsed (Borland v. Curry, 4 L.R. Ir. 273).

Money Acknowledged by 1.0. U.—As an I.O.U. is evidence of an account stated, it would seem that any claim for which the same is held is to that extent within s. 64. Where an I.O.U. was given by defendant for money lent, and the lender assigned the debt to the plaintiff in writing, it was held that a writ indorsed with particulars of such assignment and I.O.U. was specially indorsed (Bickers v. Speight, 22 Q.B.D. 7).

Bond or Contract wider Seal.—Double as well as simple bonds for payment of a definite sum of money are included in s. 64. Covenants for payment of specific sums—as for rent, etc., are also included (Lloyd r. Byrne, 22 L.R. Ir. 269), but not covenants for»indemnity (Knight v. Abbott, 10 Q.B.D. 11).

Such Special Indorsement.—As to amendment, see Gurney v. Small, W.N. (91) 168; (91) 2 Q.B. 584.< Cases.—Bills and Notes.—An indorsement which sets out full particulars of the instrument sued on, cannot be objected to on mere ground that defendant is sued as personal representative of the party originally liable (Hibernian Joint Stock Banking Co. v. McDonnell, 12 Ir. L.T. 106). An indorsement, on the other hand, which gives no particulars of parties and dates of bills and notes, but simply claims a lump sum as defendant’s contribution thereon, does not comply with s. 64 (Walker v. Hicks, 3 Q.B.D. 8).

Goods Sold.—Defendant’s liability as purchaser is sufficiently shown by tbe expression “ To goods” (Smith v. Wilson, 5 C.P.D. 25); but the omission of the date of sale prevents the indorsement from being special (Jackson v. Kelly, 12 Ir. L.T. 136); so, in respect of claims for balance of account for goods (McCawley v. Campbell, 4 L.R. Ir. 410; Phelan v. Shanks, 18 Ir. L.T. 13).

Percentage on Goods Consigned.—Writ claiming percentage on goods consigned held not to be specially indorsed, as it omitted amounts and dates of consignments (Parpaite Freres v. Dickinson, 26 W.R. 479).

Money Paid or Lent.—Claim for balance of moneys paid, referring to account rendered satisfies s. 64 (Aston v. Hurwitz, 41 L.T. 521), but not a claim which only gives dates of years in which money was paid or lent (Kershaw v. Coakley, 14 Ir. L.T. 13). So, where claim is to recover deposit from a stakeholder (Connor v. McErlean, 12 Ir. L.T. W.N. 120).

I.O.U.—As to sufficiency of form where money acknowledged by, see Bickers v. Speight, 22 Q.B.D. 7.

Bonds and Contracts under Seal.—Bent.—Held in Ireland, that an indorsement for so much rent as for use and occupation, could not avail as special, where it was shown in fact that rent was due on covenant (Hartford r. Maher, 16 Ir. L.T. 53).

55 YIC. No. 33. 25

Guarantees.—Claim on covenant in mortgage deed against surety, held to be specially indorsed, although character of defendant was not disclosed (Caldwell v. Wren, 12 Ir. L.T.146); held otherwise where claim was by surety and mode in which suretyship arose was omitted (Ahern v. O’Donovan, 15 Ir. L.T. 17).

Balance of Account.—Particulars of Credit.—Should be indorsed to satisfy s. 64 (Godden v. Corsten, 5 C.P.D. 17).

65. A summons or other process of the Court shall, Service of except when otherwise prescribed, he served upon thesul,m,ons- person to whom it is directed by delivering a copy to him personally, or, if he cannot he found, by leaving it with some person for him at his place of residence. If no person can be found at his place of residence, the summonsor other process may he served in such manner as the Judge directs.

A specially indorsed summons shall he served person- specially ally, unless the Judge otherwise orders. summons.

A summons (whether specially indorsed or not) or Service on other process shall he served on a corporation or joint comPan)’- stock company at the registered office, if any, of the corporation or company, and if there is not a registered office, then upon a member, officer, or servant, of the corporation or company, at the principal place of business of the corporation or company in Queensland (if any can be found), or, if a member, officer, or servant cannot be so found, then by serving some member or members or officer or servant or agent of the corporation or company as the Judge directs.

The person who serves a summons or other process of the Court must, within three days after service, indorse on the summons or other process a statement of the day and place and manner of service and his signature.

As to what companies are amenable to the jurisdiction, see s. 60.As to service in various cases, see Index, title Service.

. Whether the service is good is a matter for the judge. Waters v. Handley,G D. & L. 88 ; Robinson v. Lenaghan, 17 L.J. Ex. 174 ; Zohrab v. Smith, 17 L.J. Q.B.174. Compare Liverpool Gas Co. v. Everton, L.R. 6 C.P. 414 ; Ex parte Hickey, 4 S.C.R.(N.S.W.) 23.

But it is otherwise where there has been no service, and no evidence of anything that would amount to service. Ex parte Bucknell, 6 S.C.R. (N.S.W.) 96.

66. When a summons or other process of the Court Proof of is served by a bailiff, the bailiff may attend before a justice by and depose on oath to the time, place, and manner of the [Compare service. Such deposition shall be indorsed on or attached bl4g5s2 yfj to the summons or other process, and shall, on productionto the Court, he sufficient proof of the service.

jDefences.67. In every action in which it is the intention of Notice of

the defendant to contest the plaintiff’s claim or a part of ^nee 10 be it, a notice of defence shall be filed within eight days after ’


[Compare 51 & 52 Yic. c. 43, s 86.]

Cross-action.

Equitable claim may be set-off.

Defence uponequitablegrounds.

Notice ofspecialdefence.[51 & 52 Vic. c. 43, s. 82.]

the service of the summons or within such other time as may he prescribed.

As to when defendant at hearing is to state grounds of defence, see r. 12G.As to practice on set-off, see Index, title Set-off.Where pleas or notices of pleas are entered which are not required by law, it has

been held that the defendant is not bound by them. Ex parte Charlton, 8 S.C.R. (N.S.W.) 162.

68. All matters which are only the subject of a cross-action, or may be made the subject of a cross-action between the parties, may be pleaded by way of set-olf.

See also note to s. 71.Cross judgments may be set-off, s. 179.

69. An equitable claim or demand which might be the subject-matter of an action in the Court may be pleaded by way of set-off.

As to jurisdiction over equitable claims, see s. 58.As to plaint in equitable claims, see s. 63.As to equitable defences, see also rr. 06, 67.

70. The defendant in an action in which, if judgment were obtained against him, he would be entitled to relief against the judgment on equitable grounds, may plead the facts entitling him to such relief by way of defence.

The principles of a court of equity, and not the practice, are to be considered in equitable defences. As to equitable defences, see s. 69. This plea has, if successful, the effect of a complete bar to the action. Murphy v. Glass, 2 L.R. P.C. 408; Wodehouse r. Farebrother, 25L.J. Q.B. 18; Flight v. Gray, 27 L.J. C.P. 13; Phelp v. Protheroe, 24 L.J. C.P. 225; Wakley v. Froggatt, 33 L.J. Ex. 5 ; Mines Royal Society v. Magnay, 24 L.J. Ex. 7; but see Allen r. Walker, L.R. 5 Ex, 187.

Such defences as mistake, fraud, undue influence, or accident are grounds for relief in equity.

71. Subject to the power of amendment conferred by this Act, a defendant shall not, without the consent of the plaintiff, be allowed to set off a debt or demand claimed or recoverable by him from the plaintiff, or to set up a defence upon equitable grounds, or on the ground of infancy, coverture, or any Statute of 1’rauds or Limitations, or of his discharge under any Act relating to insolvents, or to plead a justification in an action of tort, unless the prescribed notice is given to the registrar.

When the prescribed notice is given, the registrar shall, as soon as conveniently may be after the notice, communicate it to the plaintiff by post, or by causing it to be delivered at his usual place of residence or business, but it shall not be necessary for the defendant to prove on the trial that the notice was so communicated to the plaintiff.

Quaere, Can notice of special defence be dispensed with by the judge under the power of amendment? Sempill v. Cumming, 9 S.C.R. (N.S.W.) 128; Lockhardt v. Dymock, Knox 181; Ex parte Spence, 11 S.C.R. (N.S.W.) 48 ; but see rr. 66 and 70.

Set-off.—As to practice on set-off, see Index, title Set-off.The plaintiff may recover the excess (if any) of the debt set-off over the plaintiff’s

claim, s. 111. '

55 VIC. No. 33. 27

The set-off must be a legal debt of a liquidated character. Crawford v. Stirling, 4 Esp. 207; Freeman v. Hegett, 1 W.B1. 394, and the debt must be mutual; Grants. Royal Exchange Ass. Coy., 5 M. & S. 439.

A set-off admits the cause of action, and states that the defendant has another cause of action against the plaintiff, while a cross action arises out of the same matter. Dibbs v. Newcastle Coal, etc., Coy., 1 S.C.R. (N.S.W.) 248; Zimmler v. Manning, 2 S.C.R. (N.S.W.) 235 ; Jones v. Corker, 8 S.C.R. (N.S.W.)236.

The right of set-off is by statute, and an express agreement not to set-off a particular debt is not binding upon the party making the promise. Lechmere v. Hawkins, 2 Esp. G26; McGillivray v. Simpson, 2 C. & P. 320.

Equitable Grounds.—See note to s. 70.Infancy.—For further as to actions by and against infants, see ss. 97, 195, and rr. 57,

60, 67, 124, and ff. 6, 57, 58.An infant, i.e., a person under 21 years of age, is not at common law liable under

an agreement or contract except for necessaries, which is a relative term, and depends on the station in life of the infant. An infant on coming of age may ratify any promise made in infancy, and his liability will arise; but such promise must be in writing, and signed by the party to be charged. Infancy is no defence to an action of tort. Bristow v. Eastman, 1 Esp. 172.

Coverture.—As to proceedings by husband and wife, see s. 93, and rr. 60, 66, 67, 92, 99, 200.

Frauds and Limitations.—As to frauds and limitations, see “ Statute of Frauds and Limitations Act of 1867,” 31 Vic. No. 22 (P. & W. 787).

As to when special pleas are to be delivered, see r. 66.As to what special pleas are to contain, see r. 67,As to service of summons in bar of limitation, see rr. 43, 44.Insolvency.—As to practice on plea of insolvency, see rr. 66 and 67.As to abatement of action on insolvency, see s. 94. As to when insolvent judgment

debtor may be discharged from custody, see s. 171.Tort.—As to what actions of tort may be referred from Supreme to District Court,

see s. 130.

Payment into Court.72. A defendant may, within the prescribed time, Payment

pay into Court a sum of money as full satisfaction for the demand of the plaintiff, together with the costs c. 43, s. 107 j incurred by the plaintiff up to the time of payment.

Notice of the payment into Court shall be communicated by the defendant to the plaintiff by post, or by causing it to be delivered at his usual or last known place of residence or business, and such sum of money shall be paid to the plaintiff; but if the plaintiff elects to proceed, and does not recover a further sum in the action than is paid into Court, the plaintiff shall pay to the defendant the costs incurred by him in the action after the payment, and an. order shall thereupon be made by the Court for the payment of the costs by the plaintiff.

As to payment into and out of court, see also Index, title Payment.As to the effect of payment into court as an admission, see Lawes v. Price, 8 V.L.R.

(L.) 250; Robinsons. Highett, 9 V.L.R. (L.) 384; O’Hara v. Rochford, 11 V.L.R. (L.) p. 100; Kelly v. Shire of Oakleigh, 9 A.L.T. 56 ; Hobson v. Stoneham, 13 V.L.R. (L.)738.

For payment into court in case of defamation, see 53 Vic. No. 12, s. 22 (P. &. W.3755).

Judgment upon Admission of Defendant.73. A defendant may, in the presence of the regis- confession of

trar of the court in which the plaint is entered, or in the ^ y pyt„ .. . *■. . , , j of debt andpresence ot a solicitor, or a justice, sign a statement con- judgment

fessing and admitting the amount of the debt or demand, thereon, or part of the amount of the debt or demand, for which LTsavie. the plaint is entered, and the amount due for costs, andc- 43>s- 98-3

the registrar shall, as soon as conveniently may be after receiving the statement, send notice of it to the plaintiff in manner aforesaid.

The plaintiff may, upon filing an affidavit verifying the signature of the defendant, sign judgment for the amount admitted in the statement and costs. When the signature of the defendant is made in the presence of the registrar, the plaintiff may sign judgment without filing such affidavit.

For forms of admission, notice, and affidavit, see ff. 21 to 24.As to time for delivery of admission, see r. 77.As to admission where plaintiff does not appear at hearing, see s. 109.

Agreement as 74. If a defendant agrees with the plaintiff as to the of debt'and”*amount °f the debt or demand, and the terms and condi- cooditions of tions upon which it is to be paid or satisfied, the parties [5iT52 Vic. may> in the presence of the registrar of the Court in which c. 43, s. 99.] the plaint is entered, or in the presence of a solicitor, or a

justice, sign a statement of the amount so agreed upon, and of the terms and conditions upon which it is to be paid or satisfied.

The plaintiff may, upon filing an affidavit verifying the signature of the defendant, sign judgment for the plaintiff for the amount, and upon the terms and conditions, agreed upon. When the signature of the defendant is made in the presence of the registrar, the plaintiff may sign judgment without filing such affidavit.

For forms, see ff. 25, 20.Agreement as to amount of debt may include costs, r. 78,


Judgment by Default,75. If the defendant does not file a notice of defence

within the prescribed time and the summons is specially indorsed, the plaintiff may, upon proof of the service of the summons as prescribed, and upon filing a statement verified on oath of the particulars of his claim in respect of the causes of action stated in the special indorsement, sign judgment for any sum not exceeding the sum indorsed on the summons, together with the interest at the rate specified, if any, to the date of the judgment and the prescribed sum for costs; but a Judge may set aside or vary the judgment upon such terms as he thinks just.

# Compare Ord. XIII., r. 3, of Rules under the Judicature Act (P. & W. 1932). The claim must be for a liquidated amount, s. 04. An affidavit of debt is necessary before issuing execution, s. 107.

When some 76. When there are several defendants to a speciallyfiienoticesof indorsed summons, and one or more of them files a notice defence and of defence, and the other or others of them does or do not, others do not. the plaintiff may sign judgment against such of them as

Judgment when no defence and summons specially

55 VIC. No. 33. 29

have not filed notices of defence, and may issue execution upon the judgment without prejudice to his right to proceed with his action against such as have filed notices of defence.

Compare Orel. XIII., r. 4, under the Judicature Act (P. & W. 1032).

Judgment Summonses.

77. When the defendant files a notice of defence in when an action in which the summons is specially indorsed,jj^nonsmay the plaintiff may, on filing an affidavit made by himself or be issued, by another person who can depose of his own knowledge to the debt or cause of action, and stating that in his belief there is no defence to the action, take out a summons in* the form in the Third Schedule to this Act, or in such Third other form as may he prescribed, and which is in this Actbc e 11 e' called a “judgment summons,” calling on the defendant to show cause before a Judge why the plaintiff should not be at liberty to sign j udgment forthwith, for the amount so indorsed, together with interest, if any, and costs. .

A copy of the affidavit shall accompany the judgment summons.

Upon the return of the summons, the Judge may, unless the defendant by affidavit or otherwise satisfies him that he has a good defence to the action on the merits, or discloses such facts as are sufficient to entitle him to defend, make an order authorising the plaintiff to sign judgment accordingly.

As to final judgment summonses, see also ss. 60, 04, 65, 75, 76; Schs. ii. and iii., rr. 22, 45 to 48, 64, 69, 73, 79 to 81, and If. 8, 9, and 29 to 31.

As to specially indorsed summons, see s. 64 and notes thereto. .As to time for filing special pleas and what they shall contain, see rr. 66 and 67.Queensland Cases.—The combined effect of these sections and s. 64 is that the court

may allow—(1) an order for final judgment in a summary way ; (2) give defendant leave to defend unconditionally ; (3) give leave to defend on terms. Eor the principles applicable, see A. J.S. Bank v. Salisbury, 1 Q.L. J. 8.

As the making of the order is in the discretion of the Judge hearing the application, the Court of Appeal will not set aside the order except for strong and substantial reasons. Royal Bank v. Hipwood, 4 Q.L. J. 108. But there is an inherent power in the court to prevent an abuse of its proceedings, and a judgment will be set aside if the circumstances of the case require it. Levy v. Bryant, 4 Q.L.J. 125. The affidavit in support must be sworn before a copy is served. Mark well v. Brown, 3 Q.L.J. 107. •

This section is almost identical with Order XIV., r. la, under the Judicature Act (P. & W. 1933). The following note, as far as the same appears to be applicable, is adapted from Snow, Burney, and Stringer’s Annual Practice, 1892 :—

. Statutory Effect )f O. 14.—The summary jurisdiction conferred by this section must be used with great car3. A defendant ought not to be shut out from defending unless it is very clear indeed that he has no case in the action under discussion (per Lord Esher,M.R., in Shurmur v. Young, 33 Sol. Jo. 155). (See Sheppards v. Wilkinson, 6 Times L.R. 13.) And in cases arising out of stock transactions, especially, the Court should be very slow in allowing the plaintiff to take judgment without trial, or in making payment into Court a condition of leave to defend (Ward v. Plumbley, 6 Times L.R. 198).

Where the Defendant Files a Notice of Defence.—These words require that the writ should be specially indorsed at the time of the filing of notice of defence (Gurney v. Small,W.N. (91), 168). This view had been previously adopted in respect of the corresponding Irish rule (Robinson v. Ralston, 8 L.R. Ir. 26); though attention does not seem to have been called to the requisite of appearance, but only to tlie feasibility of amendment. The point in question was discussed, but not decided, before North, J. (lmbert Terry v. Carver, •34 Ch. D. 506).

On Afjidavit.—The issue of the summons, not the affidavit, founds the jurisdiction.


Amount so Indorsed.—Affidavit which verifies whole cause of action at issue of summons, but gives credit for payment in part since made, is sufficient (Scott v. McMullen,14 Ir. L.T. 26); and judgment, if allowed to be entered, should be for amount actually due at the time of application (Hodges v. Callaghan, 2 C.B. N.S. 306).

“ Copy of Affidavit....................Summons. ”—A supplementary affidavit served afterthe summons did not cure an original defect, and the summons was dismissed (Fitz- waiters. Val Dare Opal Co. Ld., 3 Q.L.J. 162). As to what the affidavit in support of summons should contain, see Miles v. Fitzgerald, 4 Q.L.J. 157.

_ Unless the Defendant by Affidavit or Otherwise.—These words set forth the general conditions upon which a primd facie case for summary judgment may be ireb; s. 86 states the mode in which those conditions may be fulfilled. The expression .“or otherwise” signifies “by other sufficient means,” and justifies the affidavit in opposition being made by some third party ; but unless defendant be a body corporate aggregate, or the case be otherwise exceptional, the affidavit in opposition should be made personally by defendant (Shelford v. Louth Ry. Co., 4 Ex. D. 317). The words “or otherwise” do not mean that any informal evidence, such as production of papers or accounts, are to be taken into consideration unless they are duly verified by affidavit (United Founders Trust v. FitzGeorge, 7 Times L.R. 620). A primd facie case for judgment may be met not only by affidavit but also by offer to bring money into Court (s. 86); if there be no prina facie case, e.g., no special indorsement within s. 64, or no due verification of claim, defence may be by preliminary or technical objection. Thus, in general, defence to application for- summary judgment may be by—i. Preliminary Objection ; ii. Affidavit of Merits ; iii. Offer to bring money into Court.

Defence on the Merits.—This includes any legal defence, e.g., Statute of Limitations (Lord Bellew v. Markey, 2 L.R. Ir. 185; 4 L.R. Ir. 747), or other statutory plea (McAllister v. Allen, 12 Ir. L.T. 49); but does not extend to mere cases -of hardship creating no enforceable right—e.g., parol promise by plaintiff unsupported by valuable consideration (Woolston v. Baynes, W.N. (76) 74), claim for indemnification by third party (Thorne v. Seel, W.N. (78) 215; German Bank of London v. Schmidt W.N. (76) 10); .mere inability to pay (Desart v. Townsend, 22 L.R. Ir. 389). It is, however, sufficient to suggest some plausible defence ; a complete defence need not be shown. Where there is “ a fair probability of a defence ” unconditional leave to defend ought to be given (see Ward v. Plumbley, 6 Times L.R. 198). And where an action was brought by a bank in New York against an American resident in this country and the defendant set up as a defence the distinction between “special” and “general” partners under the law of New York, he was held entitled to unconditional leave to defend, although the plaintiff averred that there was and could be no defence (Western Natl. Bk. of New Yorkr. Perez, 6 Times L.R. 366).

Exorbitant Rate of Interest.—Where the claim was on a promissory note given for .. an amount to cover money lent and interest at the rate of 90 per cent, per annum, and$ there was no dispute as to the note having been given, it was held that on payment by the

defendant of the sum actually advanced and 5 per cent, interest from the date of such advance, he was entitled to defend as to the residue, Parker v. Brand, 7 Times L.R. 462.

Discloses such Facts.—The facts must be verified by affidavit. See United Founders Trust v. FitzGeorge, 7 Times L.R. 620. “ The very rule itself contemplates that a manis to be let in to defend, who can make out a defence” (Harrison v. Bottenheim, 26 W.R. 362, 363, per Bramwell, L.J.); “by the very words of the order the plaintiff is not to be allowed to sign judgment merely because the defendant’s affidavit does not show a complete defence” (Ray v. Barker, 4 Ex. D. p. 283, per Brett, L.J.) The judge, however, has to exercise his discretion in each case, though he is bound on being satisfied of a defence on the merits to refuse an. order for judgment (Shurmur v. Young, 33 Sol. Jo. 155, where dictum attributed to Lord Coleridge, C.J., in Yorkshire Banking Co. v. Beatson, 4C.P.D. p. 215, is disapproved; also Thompson v. Marshall, 28 W.R. 220; Wallingford v. Mutual Society, 5 App. Cas. pp. 699, 700, 704). For the purposes of section 77, a good counterclaim is not a defence, though it is ground for a stay of execution until it is tried. See Sheppards

............................. v.. Wilkinson, 6 Times L.R.. 13....................................................... ....................... ....Application by Married Woman.—A married woman in whom a cause of action within

s. 64 is vested, may take out a specially indorsed summons, and proceed for summary judgment in all respects as if she were a feme sole.

Application against Married Woman—Ante-nuptial Debts.—A married woman is liable to be sued singty or jointly with her husband for any debt contracted by her before marriage, and summary judgment may be obtained for such debt as against her in respect of her separate estate, but as against her husband only to the extent of the net property he has derived from her (Beck v. Pierce, 23 Q.B.D. 316). In the absence of proof of property so derived, the husband is entitled to unconditional leave to defend (Downe v. Fletcher, 21 Q.B.D. 11; McAllister v. Allen, 12 Ir. L.T. 49); on the other hand, by the very nature of the case, separate propety is not a condition of allowing judgment against a married woman in respect of an ante-nuptial debt, for as above explained, it is only as regards her capability to contract, not her capability to sue or be sued, that separate property is material. It would seem that a debt accruing due after marriage on a contract made before marriage is, for the purposes of s. 77, on the same footing as an antenuptial debt (Gunstan v. Maynard, 75 L.T. Jo. 102).

Post-nuptial DebU.—Or debts arising on contracts made after marriage, are distinguishable according as the contracts were entered into before 1st Jan., 1891, or on or after 1st Jan., 1891, i.e., according as the contracts are or are not subject to the M. W.P. A., 1890 (P. & W. 4040). Promissory note signed by married woman before 1st Jan., 1891; held, that judgment against maker under s. 77 must be limited to separate estate belonging to defendant at time she made note, as Act of 1890 was not retrospective (Turnbulls. Forman,15 Q.B.D. 234. For form of judgment, see Q.N. Bank v. Mant, 4 Q.L.J. 55. As to what

55 VIC. No. 33. 31

property is liable to be taken in execution, see Pocock v. Faulkner, per Paul, J., 4 Q.L.J. Judgment against married woman on contract made by her on or after 1st January, 1891, may be entered up in respect of after-acquired as well as presently acquired separate property in form below referred to.

Inquiry as to Separate Property.—May be included in order for judgment under s. 77 (Gloucestershire Banking Co. v. Phillips, 12 Q.B.D. 533).

Evidence required of Separate Property.—In applying for an order for judgment under s. 77 against a married woman, the particulars indorsed on the summons should contain an allegation that she was possessed of separate property at the time the contract was entered into (Tetley v. Griffith, 36 W.R. 96); and such allegation must in every case be proved to the satisfaction of the judge before the application will be granted. See Southern Counties Bk. v. Farquhar, 34 Sol. Jo. 182; Everitt v. Paxton, 7 Times L.R. 465. But “if she is once a partner in a firm she can sue or be sued in respect of her separate estate which is her interest in the firm ” (Eddowes r. Argentine Loan, etc., Co., 62 L.T. p. 605 ; 63 L.T. 364). See Ryan v. Topham, 5 V.L.R. (L.) 281.

Form of Judgment.—The proper form of judgment against a married woman in respect of a post-nuptial debt was finally settled by the Court of Appeal (Scott r. Morley,20 Q.B.D. 120), followed by Q.N. Bank v. Mant, supra.

■ Appeals.—Principles on which Court of Appeal Acts.—The Court of Appeal refusedinterfere where the judge and Divisional Court had only given conditional leave to defend^"- although it would itself, if originally called upon, have given unconditional leave (Raj7$L>. Barker, 4 Ex. D. 279). Where leave to defend has been given, appeals ought not tdTfjhe; encouraged (Papayanni v. Coutpas, W.N. (80) 109); indeed, where the Divisional Courlfh '' given such leave, it is next to impossible for the Court of Appeal to allow judgment,' it is otherwise where the Divisional Court has refused such leave, as the rule for sumiri^ judgment is a hard one (Ludford v. Rymill, 4 Times L.R. 693; Ochse v. Duncan, 3 Tiii L.R. 220; Wardens of St. Saviours v. Gery, 3 Times L.R. 667). Where, however, it clear there is no defence either to the whole, or to part of a claim, on which unconditional leave to defend has been given, the Court of Appeal will reverse or vary the ruling of the Court below (Edwards r. Davis, W.N. (88) 59; Purkiss v. Low, 3 Times L.R. 63).

Setting aside Judgment.—The Court has an inherent power to set aside a judgment or other proceeding. See Beale v. Macgregor, 2 Times L.R. 311; and Re Portuguese, etc., Mining Co. (Badman’s Case), 45 Ch. D. 16. And see Levy & Co. v. Bryant, 4 Q.L.J. 124.

78. A judgment summons shall be returnable eight when days after service, or at such other time after service as

tf J oil HI 1X1 Oliomay be prescribed. returnable.

Compare Order XIV., r. 2 (P. & YV. 1933)There is no express provision as to the period at which an application under s. 77

must be made after filing of notice of defence ; but in McLardy v. Slateum, 24 Q.B.D, 504, the Divisional Court held that, though it was the intention that the application should be made before a defence had been delivered in ordinary course, the plaintiff was not. precluded from making it afterwards, but that in such an event the onus is cast on the plaintiff of showing why he did not apply sooner. See also Fowler v. Lee, W.N. (76) 86. On the corresponding rule in Ireland, however, the Exchequer Division agreeing with Andrews, J.(Hackettv. Lalor, 12 L.R. Ir. 44), and disagreeing with Chatterton, V.-C. (Sketchley v.Corrigan, 12 Ir. L.T.R. 50), has held that it is too late for plaintiff to move for summary judgment after he has taken a deliberate step—e.g., to have a trial by jury (Stewartstown Loan Co. v. Daily, 12 L.R. Ir. 418; Sligo, etc., Ry. Co. v. Palmer, 24 L.R. Ir. 58).

Dismissal—Renewal of Application.— It is competent to the tribunal entertaining an application for summary judgment to adjourn the same; and it is competent to either party to appeal from any order thereon, unless made by consent. It is another matter whether an application which has been refused, can apart from adjournment or appeal be afterwards renewed. In England, Matthew, J., allowed such renewal on fresh materials furnished by a letter containing an admission of defendant’s indebtedness (Wagstaff v.Jacobwitz. W.N. (84) 17 ; in Ireland the Court of Appeal has ruled that renewal of the application is inadmissible, even though the first application failed by reason of a mere slip (Kiely v. Massey, 6 L.R. Ir. 445; Trench v. Mulcahy, 8 L.R. Ir. 146); but Pollock, B., refused to follow these Irish cases, and where an application was dismissed with costs on account of technical defects in the summons and affidavit, and the plaintiff issued a second summons, an order for judgment was made and was confirmed on appeal to the judge. (Pollock, B., in chambers, 28 Nov. 1890.) On appeal to the Divl. Ct. the order was confirmed on the ground that there bad not, on the first summons, been any

/adjudication between the parties. The Court, however, declined to decide whether, if there had been an adjudication, a second application might be made (Sykes Brewery Co. v.•Chadwick, 7 Times L.R. 258), and see Kirchmann v. Von Snarski, 3 Q.L.J. 78.

It has been decided, however, that when an application is met by an objection that -the writ is not specially indorsed, the judge has no jurisdiction to adjourn the summons with liberty to the plaintiff to amend, because unless a writ is specially indorsed at the time the appearance is entered no order for judgment can be made upon it (Gurney v.

;Small, W.N. (91) 168); L.R. (91) 2 Q.B. 584.


Wherejudgmentsummonsreturnable.

Whenjudgmentsummonsheardat court from which it was issued.

Duty ofregistrarwhenjudgmentsummonsmadereturnable at Brisbane or Townsville or other appointed place.

When summons heard at Brisbane, or Townsville, by District Court j udge.

When summons heard by Supreme Court judge.

79. A judgment summons may be made returnable before a Judge at the Court from which it was issued, or, if the place is not within the Northern District within the meaning of “ The Supreme Court Act of 1889,”* at the District Court at Brisbane, or, if the place is within the Northern District, at the District Court at Townsville, or in either case at a District Court held at such other place as the Governor in Council may, by Proclamation, appoint as a place at which judgment summonses issued from the Court from which the summons was issued may be made returnable.

* 53 Vic. No. 17 (P. & W. 3799).As to times for service, etc., in Brisbane district, see rr. 42, 65, 69, 74, 77, 79, 182.

80. A judgment summons made returnable at the Court from which it was issued shall be heard and. determined by the Judge at that Court, and not elsewhere.

81. When the Court from which a judgment summons is issued is not the District Court at Brisbane or at Townsville, or a District Court held at a place appointed by the Governor in Council under the provisions of the last preceding section but one, and the judgment summons is

, made returnable at any of such Courts, the registrar of the Court from which the judgment summons was issued shall forthwith transmit a certified copy of the plaint and of the judgment summons, together with the affidavits and other documents relating to the summons, to the registrar of the District Court at Brisbane, or at Townsville, or at such other place at which the summons is made returnable, as the case may be.

82. A judgment summons made returnable at Brisbane or Townsville, or at a place appointed by the Governor in Council as lastly hereinbefore provided, shall be heard and determined by a District Court Judge, if any such judge is present at the place at which the judgment summons is made returnable on the return day.

83. If on the return day no District Court Judge is present at the place at which the judgment summons is made returnable, the registrar of the Court shall forthwith transmit the judgment summons and other documents in his possession relating to the summons, to the registrar of the Supreme Court at Brisbane, if the place is not within the Northern District within the meaning of “ The Supreme Court Act of 1889,”* or otherwise to the registrar of the Supreme Court at Townsville.

* 53 Vic. No. 17 (P. & W. 3799).

55 VIC. No. 33. 33

On the first day after the receipt of the summons and >ther documents on which a Judge of the Supreme Court s appointed to sit in chambers, the registrar of the Supreme Court shall submit the same to such Judge. The fudge shall thereupon hear and determine the summons in he same manner in which other applications are heard and letermined in chambers.

84. A Judge who hears a judgment summons under Minute ofhis Act shall make a minute of his order. order-

85. The minute of the order of the Judge, together Documents to vith the summons and other documents relating to it, court fronf t0 hall he returned by the registrar of the Supreme Court or which>f the District Court, as the case may be, to the registrar>f the Court from which the judgment summons was issued. ’

86. The defendant may show cause against a judg- Defendant nent summons by offering to bring into Court the summa? s^ow ndorsed on the summons, or by affidavit. In the affidavit paymentie shall state whether the defence he alleges goes to thej“to°°.urt.or vhole or part only, and if so to what part, of the plaintiff’s 7 a 8T1' slaim. And the Judge may further order the defendant to ittend and be examined upon oath, or to produce any hooks ir documents, or copies of or extracts therefrom. •

As to payment into and out of court, see also Index, title Payment.Compare Order XIV., r. 3 (P. & W. 1933) .—Offering to bring into Court.—The judge may exercise his discretion under this rule

s to whether a mere offer to pay the amount claimed into court is sufficient. To bring he sum into court is a circumstance, but not a decisive one, in defendant’s favour (Crump . Cavendish, 5 Ex. D. 211).

If the defendant’s affidavit admits part of a money claim, and shows a plausible efence as to the residue, he ought to have leave to defend on bringing that sum in Rotheram v. Priest, 28 W.R. 277). Where there is clearly a question of account between he parties, as where the plaintiff is a mortgagee in possession, there must be very special eason to justify an order, imposing as a condition upon being let in to defend, the obliga- ion to pay money into court (Wallingford v. Mutual Society, 5 App. Cas. 695); this pplies to mortgagee in possession, not to the simple relation of mortgagor and mortgagee, r their transferees (Purkiss v. Low, 3 Times L.R. 63).

-Affidavit shall State.—Affidavit in answer to claim for price of goods sold must ! condescend upon particulars. It is not enough to swear, ‘ I say, I owe the man nothing ’-you must satisfy the judge there is a reasonable ground for saying so. So, again, if you wear that there was fraud that will not do. It is difficult to define it, but you must give uch an extent of definite facts pointing to the fraud as to satisfy the judge that those are acts which make it reasonable that you should be allowed to raise that defence. And in fee manner as to illegality, and every other defence that might be mentioned ” (Walling- Drd v. Mutual Society, 5 App. Cas. p. 704, per Lord Blackburn). A test whether the ffidavit is sufficiently specific is—could the defendant be convicted of perjury for swearing

if untrue? (The London Stock Exchange v. Willis, 28 Sol. Jo. 478). Any evidence Irhich satisfies the court is within the rule, but where the defendant can make an affidavit ie should do so (Shelford v. Louth Ry. Co., 4 Ex. 1). p. 319 (C.A.)).

Order . . to Attend or Produce.—The power to examine parties is only to bexercised in exceptional cases, as it would otherwise lead to great expense, and the trial of ,ctions on summons (Millard v. Baddeley, W.N. (84) 96, per Field, J.) As to discovery ly trustees and production of settlement on application against married woman, see £ursill v. Tanner, 16 Q.B.D. 1.

87. If it appears that the defence set up by the if defence lefendant applies only to a part of the plaintiff’s claim, or a310 ;hat a part of his claim is admitted to he due, the plaintiff judgment jhall have judgment forthwith for such part of his claim as forthwahforj d balance.

f

DISTRICT COURTS ACT, 1891.31

the defence does not apply to, or as is admitted to he due, subject to such terms, if any, as to suspending execution or the payment of the amount levied, or a part of it, into Court by the bailiff, the taxation of costs, or otherwise as the Judge thinks just. And the defendant may be allowec to defend as to the residue of the plaintiff s claim. 1 ;

Compare Order XIV., r. 4 (P. & W. 1933):— , :iCases—Part of Claim, Due—Defence as to Residue.—Defendant is entitled t<|

unconditional leave to defend as to any part of a claim to which he shows a defence j where, therefore, defendant admitted part of claim, but disclosed defence as to residue, order was made that plaintiff have judgment for £— admitted to be due ; leav® as to residue (Dennis v. Seymour, 4 Ex. D. 80; and see Hanmer v. Flight, 24 w.±t. o4b,j Ex parte Sewell, 13 Ch. D. 266 (C. A.) 186; Crump v. Cavendish, 5 Ex. D. 211 (C.A.)). i

If one of two 88. If it appears to the Judge that a defendant has ha^defence a good defence to or ought to be permitted to defend the leave may action, and that another defendant has not a good defence begranted to ^ not to be permitted to defend, the former maj

be permitted to defend, and the plaintiff shall be entitled to sign judgment against the latter, and may issue execution upon the judgment without prejudice to his right to proceed with his action against the former.

89. A defendant who has set up a defence by waj of set-off may in like manner and subject to the same conditions call on the plaintiff to show cause why the defendant should not be at liberty to sign judgment fo:

why he should the amount claimed by him, and thereupon the same pro "ud ment ceedings may be taken on the part of the defendant a:ju gmen. ^ hereinbefore provided for on the part of a plaintiff.

As to practice on set-off, see Index, title Set-off.See also note to s. 71.

Defendant claiming set-off may call upon plaintiff to

Leave to k 90. Leave to defend may be given unconditionally unconditional6, with or without costs, and subject to such terms as t<

giving security or otherwise as the Judge thinks fit.Compare Order XIV., r. 7 (P. & W. 1933).Leave to Defend—On application under s. 77, order may be made, for (1) Dismissf

of application; (2) Unconditional leave to defend; (3) Leave to defend on terms (1) Leave to defend as to part, judgment for residue ; (5) Judgment for whole claim.

Dismissal of Application.— Differs from unconditional leave only in the point c costs; costs on dismissal are forthwith given to defendant; costs on unconditional lea v are usually made costs in the cause, or at most defendant’s costs in any event. ^ A application which is purely an experiment, or which is open to an incurable preliminar objection, should be dismissed (cf. Rodway v, Lucas, 10 Exch. 673; Trench v. Mulcahj 8 L.R. Ir. 146); so, as against an executor or administrator in his personal capacity where the defence of plene administravit is established (Millar v. Keane, 24 L.R. Ir. 49 Findlater v. Tuohy, 16 L.R. Ir. 474). .

Judgment for Whole Claim—“ When the judge is satisfied not only that there is r defence, but no fairly arguable point to be argued on behalf of the defendant, it is his dut to give judgment for the plaintiff” (Anglo-Italian Bank v. Davies, 38 L.T. p. 201, pc Jessel, M.R.) Claim for balance of account; defence—credit not given for interest du to defendant on certain moneys paid to plaintiffs. Held by C.A. that no particulai being given of such moneys and no claim being ever before made by defendant i relation thereto, no arguable defence was disclosed ; order for final judgment according] granted [lb. 197).

The Divisional Court has laid it down that, unless in very exceptional circumstance judgment will be allowed on an undisputed bill of exchange or on a note, bill, or chequ given and accepted as cash notwithstanding a good counterclaim (Newman v. Leve 4 Times L.R. 91; Jackson v. Murphy, 4 Times L.R. 92 n., but see note, Set-a infra). Obviously an acceptor’s counterclaim against third party is no answer to applic lion for final judgment by holder in due course (Edwards v. Davis, W.N. (88), 59), nor

55 YIC. No. 33,

efendant’s mere inability to pay (Desart v. Townsend, 22 L.R. Ir. 389), or insolvency inon., W.N. (76) 23; Clifford v. Budds, W.N. (84) 40), a ground for refusing judgment, nd judgment may and should be allowed in a clear case, notwithstanding an offer to pay lie whole amount into court. Crump v. Cavendish, 5 Ex. D. 211.

Cases.—Assignment of Chose in Action.—Assignments of small debts obtained by a ebt-collector from creditors of defendant. Two days before action notice of assignment iven to defendant’s wife. Action for the aggregate amount of such debts, as being due nder and by virtue of the assignment. Unconditional leave to defend given, the whole ransaction being held to be an abuse of the process of assignment (Comfort v. Betts, 89 L.T.o. 81).

Bill of Exchange—Fraud.—A good defence under s. 77, even as against holder in ue course (Millard v. Baddeley, W.N. (84) 96; Fuller v. Alexander, 47 L.T. 443; cf.

i’atam v. Haslar, 23 Q.B.D. 345); as against such holder, however, fraud to be such efence must be in inception of bill not collateral thereto (Edwards v. Davis, W.N. (88) 9; Jones v. Whittaker, 57 L.T. 216).

Date, of Bill Altered.—Unconditional leave to defend granted to acceptor on proof of Iteration in action by holder in due course (Engel v. Stourton, 5 Times L.R. 444).

Promissory Notes—Collateral Agreement.—A sufficient defence as between parties dth notice (Beckingham v. Owen, W.N. (78) 215; Lyster v. Connolly, 12 Ir. L.T. 71).

Promissory Note—Exorbitant Rate of Interest.—See Parker v. Brand, 7 Times L.R. 62. > <

Cheque for Gambling Losses.—Unconditional leave granted where plaintiff takes nth notice of consideration (Hodgman v. O’Neil, 2 Times L.R. 169).

Insolvency.—“As a general rule, where proceedings in insolvency to recover a 'ebt prove abortive, a summons for leave to sign judgment under s. 77 ought not to be ntertained” (Ray v. Barker, 4 Ex. D. p. 283, per Brett, L.J.). Conversely, omission of ila-in tiff to apply for judgment under s. 77 is no absolute estoppel to subsequent proceed- ngs by debtor’s summons, but only an element to be considered in granting a stay of ame {Ex parte Hosford, 6 Ch. D. 215); application under s. 77 is, however, the proper ourse where there is a solvent debtor and a bond fide dispute as to the>debt {Ex parte iewell, 13 Ch. D. 266). The Official Trustee, however, has power to go behind a judgment btained for non-payment into court as a condition to defend {Re Lopes, 5 Times Rep. 685).

Set-off.—Where the defendant has clearly no defence to the plaintiff’s claim, iut sets up a plausible set-off for an amount not less than the plaintiff’s claim, the rder on the plaintiff’s application under s. 77 should not be for leave to defend, but hould be for judgment for the plaintiff on the claim with a stay of execution till the trial f the set-off. And semble, if the set-off were less than the plaintiff’s claim the stay of xecution would only apply to such amount of the claim as was covered by the set-off. Iheppards v. Wilkinson, 6 Times L.R. 13. But see Court v. Sheen, 7 Times L.R. 566, Joedone Co. v. Barrett, 26 Sol. Jo. 657; an exception has been recently grafted on this ule in claims on undisputed bills, notes, and cheques (Newman v. Lever, 4 Times It. R. 91; ackson v. Murphy, 4 Times L.R. 92 (n.); scd qucere; and cf. Mersey Steamship Co. v. iliuttleworth, 11 Q.B.D. 531).

As to unsubstantial set-off, see Anglo-Italian Bank v. Davies, 38 L.T. 201; as ecurity for costs of set-off by foreign defendant, see Sykes v. Sacerdoti, 15 Q.B.D. 423.

to.Goods Sold.—Non-delivery of all the goods and excessive charges held sufficient '

lefence (Ochse v. Duncan, 3 Times L.R. 220).Work Done.—Defence, denial of contract sued on—payment and inferiority of work;

inconditional leave granted (Runnacles v. Mesquita, 1 Q.B.D. 416). So, in an action by he assignee of a dressmaker’s bill against two defendants where plaintiff’s affidavit lleged that credit was only given to one of such defendants (Pearson v. Fane, 5 Times j.R. 323).

Covenant in Deed.—Defence, release (alleged by defendant to be delivered as an scrow only) held good (Berridge v. Roberts, W.N. (76) 86).

Calls on Shares—Application for final judgment sufficiently met by adequate set-off Groom v. Rathbone, 41 L.T. 591; but that case was apparently disapproved in Hoby v. 5irch, 62 L.T. 404), or alleged misrepresentation in prospectus (Dry Docks Corporation of [iondon v. Delvin, 4 Times L.R. 132), or collateral agreement with promoter (Ironclad, itc., Co. v. Gardner, 4 Times L.R. 18).| Guarantees.—“ In my opinion, it ought to be a general rule that where there is no[Cknowledgment of the debt by the defendant, or anything else to show that the defence i for mere purposes of delay, in the case of a guarantor or surety, like the defendant, he pould not be prevented from going to trial ” (Lloyd’s Banking Co. v. Ogle, 1 Ex. D. 263, jer Bramwell, L. J.). Action against surety on joint continuing guarantee; defence that [efendant was unable to ascertain if anything due on guarantee, and believed that [othing was due ; that he had received no particulars of account against principal debtor ir against himself; held, there being no admission of liability or account sent, that [efendant should have unconditional leave to defend {lb. 262). So, in general, where jhere has been no admission by payment of interest or otherwise, and surety shows sufficient ground for account (Harrison v. Gordon, 3 Times L.R. 490), or that he has [nwittingly assented to forfeiture of counter security (Harrison v. Lascelles, ib.), or even hat there has been great lapse of time in suing on a guarantee which might be thereby jffected (Newry Loan Co. v. Brady, 18 Ir. L.T. 53).[ Question for Jury.—Such as fraud or properly raised issue of fact, e.r/., whether the(elation between plaintiff and defendant was that of two principals or that of principal nd broker (Lindsay v. Martin, 5 Times L.R. 322)—whether defendant is liable—aa


When judgment to be entered by registrar.

Place of trial when leave to defend.

Proceedings by husband and wife.

purchaser for price or as auctioneer for commission (Tobin v. Connolly, 12 Ir. L.T. 138)—« entitles defendant to unconditional leave to defend. So, where primd facie case made on each side (Saw v. Hakim, 5 Times L.R. 72), but there is no rule that defence shown on defendant’s affidavit and uncontradicted by documentary evidence gives an absolute right to unconditional leave to defend (Shurmur v. Young, 33 Sol. Jo. 155).

“Subject to Such Terms”—“If the court or judge is satisfied, relying on the defendant’s affidavit, that the defendant has a good defence on the merits, the court or judge has no power to exercise a discretion as to the plaintiff signing final judgment, and has no right to order the defendant to pay money into court as a condition imposed on him before being allowed to defend” (Ray v. Barker, 27 W.R. 747, per Cotton, L.J.;, cf. Shurmur v. Young, 33 Sol. Jo. 155). “ The conditions of bringing money into court or giving security should only be applied where there is something suspicious in the defendant’s mode of presenting his case ” (Lloyd’s Banking Co. v. Ogle, 1 Ex D. p. 264, per Bramwell, L.J.), they should not be applied where there is “a fair probability” of a defence (Ward v. Plumbley, 6 Times L.R. 198). And where the claim was against a tenant whose term had expired, for recovery of possession and mesne profits but without a claim for rent in arrear, it was held that there was no power to impose payment into court of an amount equal to the rent in arrear, as a condition of leave to defend (Finsbury Building Socy. v. Pearce, 89 L.T. Jo. 81).

Cases.—Defence as to Part.—See Dennis v. Seymour, 4 Ex. D. 80; Sykes v. Sacer*1. doti, 15 Q.B.D. 423; also Purkiss v. Low, 3 Times L.R. 63.

Costs.—Where, in an action on a solicitor’s bill, leave to defend was given on the ground that the work was done after an act of insolvency by plaintiff, and the plaintiff appealed to the judge, who dismissed the appeal with costs, and ordered the solicitor personally to pay the costs, the Divisional Court, whilst dismissing the appeal, varied the order as to personal payment by making the costs, costs in the cause, on the ground that there was no misconduct on the part of the solicitor (Ward v. Proctor, 7 Times L.R. 244).

Claim by Acceptor to bring in Third Party. — Defence, that acceptor sought indemnity from drawer, who was being sued on same bill abroad; held, that amount of bill must be paid into Court within ten days, otherwise judgment (German Bank of London v. Schmidt, W.N. (76) 10).

Calls on Shares.—Cross-examination of Defendant.—Defence, that letter of allotment never reached ; leave to defend on payment of sum claimed into court, to enable defendant to cross-examine as to posting of letter (Carta Para Co. v. Fastnedge, 30 W.R. 880 (C.A.) ).

“Giving Security.”—See Tatum v. Evans, 54 L.T. 336.Practice.— Payment of Money out of Court.— There is no jurisdiction to order

money lodged in court as condition of defending whole claim to be paid out to plaintiff (Maple v. Shrewsbury, 19 Q.B.D. 463 (C.A.)); conversely, a defendant who successfully appeals against order under which money has been j:>aid in, is entitled to immediate repayment of same (Yorkshire Banking Co. v. Beatson, 4 C.P.D. 215).

91. "When liberty to sign judgment is given by order of the Judge, the registrar of the Court from which the summons was issued shall, upon receipt of the minute of the order, cause judgment for the amount mentioned in the order and the prescribed costs to be entered.

92. When a defendant obtains leave to defend, the trial of the action shall, subject to the provisions of this Act relating to change of venue, take place at the Court in which the plaint was entered.

As to venue in criminal cases, see s. 52.As to change of venue, see s. 101; for forms, sec ff. 13, 41.

Parties.93. In proceedings under this Act by a man and his

wife for an injury done to the wife in respect of which she is necessarily joined as a co-plaintiff, the husband may add claims in his own right.

In the case of the death of either of them, the action, so far only as relates to the causes of action, if any, which do not survive, shall abate.

As to abatement on death of party, see r> 97;For further as to proceedings by husband and wife, see s. 71, and rr. 60, 66, 67, 92,

99, and 200;

55 YIC. No. 33. 37

94. The insolvency of the plaintiff in an action which insolvency lie trustee might maintain for the benefit of the creditors "°^^use hall not cause the action to abate, if the trustee elects abate if o continue the action and to give security for the costs t^continuott. hereof within such reasonable time as the Judge orders, [Compare »ut the hearing of the action may be adjourned until the lection is made. ’

If the trustee does not elect to continue the action -nd to give the security within the time limited by the irder, the defendant may avail himself of the insolvency is a defence to the action.

As to abatement on death of party, see r. 97.As to insolvency, see also ss. 71* 171, and rr. 6G, G7.The right to bring an action vests in the trustee of the insolvent. The right to

ring an action for breach of contract resulting in injury to insolvent’s person or feelings oes not pass to his trustee, nor an action for personal wrongs. Be Pritchard, 4 Q.L.J. 99.

When a sole plaintiff becomes insolvent and his trustee declines to proceed, an order lay be made to stay proceedings. Warder v. Saunders, 10 Q.B.D. 114. If the trustee lects to go on, he may be ordered to pay all the costs already incurred. Borneman v. Vilson, C.A. 28 Ch. D. 53.

95. When a plaintiff has a demand recoverable under One of several ;his Act against two or more persons jointly answerable, it jj^njjy’iiabie shall he sufficient if any one or more of the persons is ormaybesued. ire served with process, and judgment may be obtained 51X52 Vie. md execution issued against the person or persons so c. 43,8.97.] served, notwithstanding that others jointly liable are not served or sued, or are not within the jurisdiction of the Court. ’

Every such person against whom judgment is so obtained, and who has satisfied the whole or a part of the judgment, shall he entitled to demand and recover contribution from another person jointly liable with him.

As to set-off where action against one or more of several persons jointly liable, see

Semble an action for contribution when the joint liability exceeds «£200 but the amount which the defendant is liable to contribute is within it may be maintained in (District Court. Parker v. Wood, 2 A. J.R. 55.[ A judgment against one of several joint contractors is a bar to an action in the same or any other District Court if sued jointly or severally on such a contract. Kendall p. Hamilton, L.R. 4, Ap. Cas. 504; Pilley v. Robinson, 20 Q.B.I). 155.

I 96. An executor or administrator may sue and he Executors, sued in a District Court in the same manner in which a person may sue or he sued in his own right, and in any ‘ 'such case judgment may be given and execution issued against the same persons against whom, and in the same manner in which, judgment would be given or execution issued in the Supreme Court.I TTr... n Vw and against executors and administrators, see Index,

ler the age of twenty-one years may infants, sue in a .District uourt in his own name for the recovery yio of a sum not exceeding two hundred pounds, which is duec. 43, s. 96.3

to him for wages or piecework, or for work or services as a clerk, servant, mechanic, or labourer, in the same manner as if he were of full age. i

For further as to proceedings by and against infants, see s. 71, 195, and rr. 57, 66, 67, 124, and ff. 6, 57, 58.

38 DISTRICT COURTS ACT, 1891. 1

Joinder and Severance of Causes of Action. ) joinder of 98. Subject to the limit hereby prescribed as to theaction80* amount for which a plaint may be entered, two or more

causes of action, if by and against the same parties and in the same rights, may be joined in the same action in a District Court; but if the Judge is of opinion that the trial of different causes of action ‘together would be inexpedient or inconvenient he may order separate trials to be had.

As to costs on joinder, see Ex parte O’Toole, 6 S.C.R. (N.S.W.) 161 note.

Splitting 99. A plaintiff shall not divide a cause of action for[Compare the purpose of bringing two or more'actions in a District 51 & 52 Vic. Court; but a plaintiff having a cause of action for more c. 43, b. si.] tban the amount for which a plaint might be entered

under this Act may abandon the excess (which abandonment shall be stated when the plaint is entered), and thereupon the plaintiff may, on proving his case, recover to an amount not exceeding two hundred pounds, and the judgment of the Court shall be in full discharge of all demands in respect of the cause “of action, and entry of the judgment of the Court shall be made accordingly.

“Cause of action” is not limited to one separate contract. As to one cause or separate causes of action, see Grimbly v. Akroyd, 17 L.J. Ex. 157; Bosney v. Wordsworth, 25 L.J. C.P. 205; Wood v, £erry, 18 L.J. Ex. 161; Copeman v. Hart, 33 L.J. C.P. 107; Wickham v. Lee, 18 L.J. Q.B. 21; Kimpton v. Willey, 19 L.J. C.P. 269; Brunskill v. Powell, 19 L.J. Ex. 362; Neale v. Ellis, 12 L.J. Q.B. 329; Richards v. Marten, 23 W.R. 93 Ex.

Damage to goods and damage to the person, though occasioned by one wrongful act, give rise to distinct causes of action. Brunsden v. Humphry, (C.A.) 14 Q.B.D. 141.

Where plaintiff splits his demand and sues for part, and defendant omits to take the objection, the plaintiff may afterwards sue for the residue. Vines v. Arnold, 19 L.J. C.P. 98; Atkin v. Friend, 38 L.T. 393 ; Jones v. Jones (1) 22 W.R. 577.

As to abandonment of excess, see generally Hopper v. Warburton, 32 L.J. Q.B. 104; Nihil! v. Coonan, K. & B. 183; Jansen v. Hagan, 3 V.L.R. (L.)21; Waxman v. McAuliffe, 5 V.L.R. (L.) 48; R. v. Cahill, Ex parte Patton, 4 V.L.R. (L.) 195.

The judge cannot amend the particulars so as to give himself jurisdiction against the will of the plaintiff Isaacs v. Wyld, 21 L.J. Ex. 48; Hill v. Swift, 24 L.J. Ex. 137; or

....................... of the defendant, Avards ^..Rhodes, 8 Ex. 312; North v. Holroyd, L.R. 3 Ex. 69.

Splitting debt 100. If a defendant has given two or more hills of bygmngbiiis, exchange promissory notes, bonds, or other securities, for [si & 52 Vic. a debt or sum originally exceeding two hundred pounds, c. 43, s. 8i.] ^ plaintiff may sue separately upon each of the securities

not exceeding two hundred pounds as forming a distinct cause of action.

As to final judgment on bill of exchange or promissory note, see s. 64.Bill of exchange or promissory note are included in term “goods,” s. 3.Parties to bill of exchange or promissory note may be joined as defendants, r. 84.In Godwins. Cashion, 1 S.C.R. N.S. (N.S.W.) 165, it was held that when a promis

sory note for ,£500 was payable by instalments, an action lies in District Court for one such instalment.

55 VIC. No. 33. 39

Changing Venue.101. If the Judge is satisfied that an action pending Judge may

in a District Court can be more conveniently or fairly tried [compare11116 ;in another District Court, he may order that the action he 5i & 52 vie. sent for trial to such other Court. g5^’ss- 22,

If a Judge is interested in the matter of an action pending in a Court assigned to him, he shall either order the action to be sent for trial to the nearest District Court which is not assigned to him, or shall adjourn the trial to he heard before another Judge.

In the former case the registrar of the Court in which the plaint was entered shall forthwith transmit by post to the registrar of the Court to which the action is sent for trial a certified copy of the plaint as entered in the plaint- hook, the duplicate copy of the summons served on the defendant, and a certified copy of the order of the Judge, • and the Judge of the last-mentioned Court shall appoint a day for the trial, and notice of it shall be sent by post or otherwise by the registrar to both parties.

As to adjournment in other cases, see Index, title Adjournment.As to venue in criminal cases, see s. 52. As to venue when leave to defend granted,

see s. 92. For forms, see ff. 43, 44.Any pecuniary interest in a case will disqualify a judge. Dimes v. Grand Junction

Canal, 3 H.L.C. 759; Lond., etc., Ry. Co. v. Lindsay, 3 Macq. H.L. 99.A barrister who has been raised to the Bench is not precluded from hearing a cause

in which he was counsel, but he may properly refuse to do so. Thellusson v. Rendlesham,7 H.L.C. 429.

As to change of venue, see Macdonald r. Tully, 1 Q.L.J. Sup. 37; Linford v.Gudgeon, L.R. 6 Ch. 359.

Means of obtaining Evidence.102. A party to an action may obtain, at the office Subpoena to

of the registrar, subpoenas to witnesses, requiring them to ^compare attend at the trial, with or without a clause requiring the si & 52 Vic. production of books, deeds, papers, and writings, in theirc'43,8'110'^ possession or control. A subpoena may be served, at theoption of the party, by himself or his agent, or by the bailiff.

Any number of names may be inserted in a subpoena.Judge may order examination of prisoner. “ The Supreme Court Act of 1874,”

38 Vic. No. 3, s. 14 (P. & W. 2463).As to evidence in various cases, see Index, title Evidence.As to service of subpoena, see notes to s. 65.Subpoenas should not be issued in blank to be afterwards filled up by the solicitor.

Wakefield v. Gall, Holt N.P.C. 526; Barber v. Wood, 2 Mood. & R. 172.As to obtaining evidence of bankers’ books, see 43 Vic. No. 7, ss. 2 and 7 to 9

P. & W. 724, 725).

103. A person on whom a subpoena is served either Penalty on personally or in the prescribed manner, and to whom ^neglecting the same time payment or a tender of payment of his subpoenas, expenses is made on the prescribed scale, and who refuses 51 XITvie )r neglects without sufficient cause to appear or to produce 0.43, s. m.j my books, deeds, papers, or writings, required by the

40 DISTRICT .COUBTS ACT, 1891.

subpoena to be produced, and also every person present in Court who is required to give evidence and who refuses to. be sworn and give evidence, shall be liable to pay a fine not exceeding fifty pounds. !

The whole or a part of the fine, as the Judge thinks fit, after deducting the costs of levying it, shall be applicable toward indemnifying the party injured by the refusal or neglect, and the remainder shall be disposed of in the same manner in which other moneys recovered by the registrar of the Court by which the fine was imposed are disposed of, hut the fine shall not exempt the person from an action for disobeying the subpoena.

As to expenses of witnesses, see also ss. 122, 135, 157, and rr. 115, 143,144.A witness may sue for his reasonable expenses, including what he has actually

expended, but cannot recover for loss of time, though he is a solicitor. Collins v. Godefroy, IB. & Ad. 950; Hunter v. Liddell, 20 L.J. Q.B. 200; Pell v. Danberry, 5 Ex. 958.

Power of 104. Instead of fining the person so refusing orlrrestofCauseneglecting to appear, the Judge before whom the person witness not should have appeared may, if good cause is not shown for subpcemu °n non-appearance, issue his warrant to bring and have the

person at a time and place to be therein mentioned before the Judge to testify what he knows concerning the matters in dispute in the action in which he is subpoenaed as a witness, &nd may adjourn the trial to that time and place.

IT™ 105- At any time after a plaint is entered, on the e ene esse. apppcayjori 0f either party, supported by affidavit that the

evidence of a specified witness, including in that term either of the parties, is material in the action, and that the witness is absent from the Colony, or is more than one hundred miles from the place of trial, or is expected to die or to he unable from sickness or infirmity to attend at the trial, or is about to leave the Colony or to go to some place beyond the said distance before the action can be heard, the Judge of the Court in which the plaint was entered may himself take in Court or chambers, or may authorise the registrar of any District Court or a commissioner of

............. the Supreme Court, or justice, or practising barrister orsolicitor, to take at some convenient time and place, the examination of the witness de bene esse.

A subpoena may be obtained in any such case requiring the attendance of the witness at the time and place appointed for the examination, with or without the production of books, deeds, papers, or writings.

Any such subpoena may be served in the same manner, and disobedience to it shall entail the same consequences, as in the case of a subpoena to attend at a trial of an action.

55 VIC. No. 33. 41

All evidence so taken shall be admissible at the hearing subject to all just exceptions, unless it is proved that the witness is at the time of the hearing within a convenient distance of the Court and able to attend.

In every such case the opposite party shall have sufficient notice of the time and place appointed for taking the examination, and may cross-examine the witness in the usual manner.

The Judge may either direct the costs of taking the evidence to be paid by the party applying, or may make them costs in the action.

For form of affidavit in support of examination, see f. 50.As to what the affidavit should state, see Baddeley v. Gilmore, 1 M. & W. 55.

# If application is made on ground of ill-health an affidavit of a medical man should if possible be obtained. Davis v. Lowndes, 7 Dowl. P.G. 101.

Trial.106. The Judge shall be the sole Judge in all actions Trial,

or proceedings in the Court, and shall determine all 51TT2 vie. questions of law, and also, unless a jury is summoned, allc. 43, s. 100.] questions of fact.

As to reserving decision on question of fact, see r. 156.For further in respect of questions of law, see ss. 53, 127, 129, 145, 159, and r. 156. *Finality of Judgments.—The judgment delivered orally by the judge is the judgment

of the court, and after he has announced it he has no power to alter it, though he may correct any mere error apparent in his decision, all the parties being present, and apparently he has the same power of correcting a mistake that is possessed by a jury with respect to an error in their verdict. R. v. Hackett, 8 V.L.R. (L.) 129.

But after he has finally pronounced his decision he cannot alter it without consent of parties. Murray v. Dabb, 9 V.L.R. (L.) at 159. Ex parte McEwan, 4 V.L.R. (L) 9; see, however, note to s. 131. And see Jones v. Jones, 5 D. & L. 628, 632 ; Byrne v. Knipe, ib.659; Irving v. Askew, L.R. 5 Q.B. 208; Re St. Nazaire Co., (C.A.) 12 Ch. D. 88; Gt.Northern Ry. Co. v. Mossop, 25 L.J. C.P. 22. A judge may give a decision apparently inconsistent with some of his remarks in delivering judgment. Allen v. Owen, 6 V.L.R,(L.) 213.

The judgment is a bar to an action on the original consideration in any other court.Austin v. Mills, 23 L.J. Ex. 40; Berkeley v. Elderkin, 22 L.J. Q.B. 281; Routledge v.Hislop, 29 L.J. M.C. 90 ; Flitters v. Alfrey, L.R. 10 C.P. 29. But this does not apply to a set-off or counter claim of which no notice has been given, or which the defendant was prevented from proving through non-compliance with the rules of practice. Stanton v.Styles, 5 Ex. 578 ; Hindley v. Haslam, 3 Q.B.D. 481.

Judge’s decision upon facts within his jurisdiction cannot be reviewed, nor upon mere matter of practice, however extravagantly wrong and unjust. Ex parte Rayner,5 D. & L. 342.

In case of perjury, judge should not be subpoenaed to produce his notes, for by law he is not required to take any (except, see ss. 145, 146). R. v. Morgan, 6 Cox, Cr. Ca. 107 ;Harmer v. Bean, 3 O. & K. 307.

107. On the first day of the sitting of a Court for judgment to the trial of actions the registrar shall call over the list of the be siven if actions in which the plaintiff’s claim is for a debt or liqui- dew^not dated demand and in which a notice of defence has not been fil6d- filed, and in which judgment has not been entered as hereinbefore provided; and upon proof of the service of •the summons as prescribed, judgment shall be given for the plaintiff in every such action in which the registrar has not received notice from the plaintiff that it has been settled out of court, and in which the plaint discloses a

42 DISTRICT COURTS ACT, 1891

sufficient cause of action; and it shall not he necessary for the plaintiff to appear at the sitting of the Court, hut judgment may he given for him in his absence:

But nothing herein contained shall prevent the Judge from letting the defendant in to defend, on proof of merits, upon such terms as to costs or otherwise as he thinks just.

Execution shall not he issued upon a judgment obtained under this section until the plaintiff has filed with the registrar an affidavit of the amount justly and bona, fide due to him upon the judgment, together with particulars of it annexed to the affidavit.

Proceedings 108. The defendant, if a notice of defence has beenwherTboth filed, shall appear at the time and place named in the parties summons, and the defendant shall he required to answer [61X52 vie. the plaint; and on answer being made in Court the Judge c. 43, s. 79.] shall proceed to try the action and give judgment without

further pleading or formal joinder of issue.As to courts at which defendant is not compellable to appear, see s. 60.The jiarty in whose favour the judge is about to decide has a right to insist on his

evidence being heard before the decision is given ; and if he waives such right, the court of appeal has the power to hear such evidence before reversing the decision of the court below. Ex parte Jacobson re Pincoffs, (C.A.) 22 Ch. D. 312.

Proceedings 109. If a notice of defence has been filed, and the dies'not^111^ plaintiff does not appear at the time and place named in appear. the summons, or upon an adjournment of the Court or of 61T52 vie. ^fie action, and the defendant appears, the plaintiff shall he e. 43, s. 88.] nonsuited:

But if the plaintiff does not appear when called upon, and the defendant appears and admits the cause of action to the full amount claimed, and pays the fees payable in the first instance by the plaintiff, the Judge may proceed to give judgment as if the plaintiff had appeared.

When neither If in any such case neither party appears the action party appears, gjjgjj struck out of the list of actions for trial.

As to default of appearance by executor or administrator, see rr. 101, 104. As to costs on default by plaintiff, see r. 122.For form, of order for costs, see f. 55. . ......................................... ..... .As to judgment upon admission by defendant, see ss. 73, 74.As to nonsuit, see ss. Ill, 132, and r. 94, and f. 54.

Proceedingswhendefendantdoes notappear.[Compare51 & 52 Yic.

110. If at the time and place so named, or upon an adjournment of the Court or of the action, the defendant does not appear, the Judge, upon proof of service of the summons, shall give judgment for the plaintiff, if the plaint discloses a sufficient cause of action:

9i.] ’88 ’ But the Judge may, at the same or a subsequentCourt, set aside a judgment so given in the absence of the defendant, and the execution upon it, and may grant a

55 YIC. No. 33. 43

new trial of the action upon such terms, if any, as to payment of costs, giving security for the debt or costs, or otherwise as he thinks fit.

As to setting aside proceedings, see also s. 136, and r. 159.For practice on new trial, see ss. 14, 132, 147, and rr. 159, 160, 167, and f. 66.As to setting aside judgment where summons in fact not duly served, see Bruce v.

Hart, 7 V.L.R. (L.) 482.As to setting aside judgment for the recovery of possession of land where judgment

had been signed in default of appearance of defendant, and leave to defend given, see Reynold v. Foden, 2 Q.L.J. 41.

No service of the judgment on defendant is necessary before execution. Ely v. Moule, 20 L.J. Ex. 29.

111. In every action in which the defendant is allowed Proceedings to set off a debt or demand claimed or recoverable by him ^fendant’s from the plaintiff, the defendant shall, whether the plaintiff set-off exceeds

is nonsuited or has judgment given against him, be entitled |^eAlamtlfe 8 to recover in the action the amount, if any, by which the debt or demand so set off exceeds the debt or demand claimedand proved by the plaintiff, and shall have judgment and execution for the same accordingly:

But the defendant shall not be allowed to set off a debt of* demand exceeding two hundred pounds. *semii

As to practice on set-off, see Index, title Set-off.As to nonsuit, see ss. 109, 132, and r. 94, and f. 54.The set-off, if- bond tide, must be within the jurisdiction. Johnston v. Cox, 1

V.L.R. 284. *

112. The Judge may in any case make orders for Judges may granting time to the plaintiff or defendant to proceed in the ^journ™0 °r prosecution or defence of the action, and may also from [sx & 52 vie. time to time adjourn the Court or the trial, or further c‘43’s'106-' trial, of an action in such manner and upon such terms as to the Judge seems fit.

For form of order of adjournment see f. 56.- As to adjournment in special cases, see Index, title Adjournment.

As a general rule applications for time should be freely granted, but the applicant should be made to pay the costs. Collins v. Paddington Vestry, L.R. 5 Q.B.D. 368 ; Eaton v. Storer, L.R. 22 Ch. D. 91; Lydall v. Martinson, L.R. 5 Ch. D. 780.

may be summoned,

mipd ["51 & 52 Vic. SUeQ c. 43, s. 101.]

Trial by Jury.113. Any party, or the Judge, may require a jury to when a jury

be summoned in any of the following cases :— ^(1) In an action or matter in which the sum

for exceeds twenty pounds;(2) In an action for the recovery of possession of

land of which the value or rent exceeds twenty pounds by the year;

(3) In an action of replevin in which the amount of rent in respect of which the distress was or might have been made exceeds twenty pounds ;

<14 DISTRICT COURTS ACT, 1891

(4) In proceedings in interpleader in which the amount claimed, or the value of the goods in question, exceeds twenty pounds.

In every such case the jury shall be summoned according to the provisions hereinafter contained.

The party requiring a jury to be summoned shall give to the registrar the prescribed notice, and the registrar shall cause notice of the demand of a jury made by either party to he communicated to the other, either by post or by causing it to be delivered at his usual place of residence or business, hut it shall not be necessary for either party to prove on the trial that the notice was communicated to the other party by the registrar.

As to jury generally, see ss. 23, et seq., and rr. 127, 1G0, and ff. 59 to 62. As to j ary in criminal cases, see ss. 53, 54.

As to practice on interpleader, see also ss. 144, 180, and rr. 177 to 181, and ff. 88to 93.

As to replevin, see also ss. 144, 109, and rr. 32, 33.As to insulting a juror, see s. 198.Jury may alter their verdict at any time before it is recorded. Napier v. Daniell,

3 Bing. N.C. 77; Stevens v. Sampson, 49 L.J. Q.B. 122.

Party 114. A party requiring a jury to he summoned shall,requiring jury £he time of giving the notice, and before he is entitled deposit. to have the jury summoned, pay to the registrar the sum

0f two pounds, and such sum shall be considered costs in °' ’ 8‘ 'J the action or proceeding unless otherwise ordered by the

Judge.When the Judge requires an action or matter to he

tried by jury, such sum of two pounds is to he paid by the unsuccessful party.

For form of certificate of deposit, see f. 17.

Jurors.[51 & 52 Vic. c. 48, s. 102.]

135. When a jury is required, the registrar shall summon not less than eight nor more than twelve of the persons named in the jury hook to attend the Court at a time and place to be mentioned in the summons, and the Judge shall administer or cause to .he administered to such of them as shall be empannelled an oath to give a true verdict according to the evidence.

jury to be..........116. Upon the trial of any case a jury of four menbaiiot1 b'Y shall he chosen by ballot from the list of j urors so summoned, [51 & 52 Vic. and in case of a deficiency of jurors the necessary number c. 43, s. 102.] persons £0 compose a jury shall be nominated by the

Judge from the bystanders.Penalty. If any person so nominated refuses to act as a juror,

without an excuse allowed by the Judge, he shall he liable to the same penalty to which a juror is liable for not attending when summoned.

If the jury retire to consider their verdict a new jury may be balloted for, out of the names that remain. Goodchap v. Nixon, 2 S.C.R. (N.S.W.) 182.

55 VIC. No. 83. 45

Evidence.117. The rules of evidence observed in the Supreme Rules of

Court shall he applicable to and observed upon the trial of eTldenee- questions of fact in a District Court.

118. Subject to the power of amendment conferred by Proof to be

this Act, evidence shall not be given by the plaintiff of any Xtter in’the demand or cause of action except such as is stated in the summons.

. 1 • ,1 . • [51 & 52 Vic.summons issued m the action. c. 43, so.]119. Affidavits to be used in a District Court may Affidavits,^

be sworn before a Judge of the Supreme Court or a com-s^00^ w om missioner for taking affidavits in that Court, or before a yic Judge or registrar of a District Court, or before a justice; c 43; s 83/j and all registrars of District Courts and justices are hereby authorised and empowered to take affidavits to he used ina District Court without any commission being issued for that purpose.

As to practice on affidavits, see Index, title Affidavit.

Costs.120. Except where herein otherwise provided, the Costs. ^ ^

costs of any action or proceeding shall he paid by or ^ 43> s 113 j apportioned between the parties in such manner as theJudge directs, and in default of a special direction shall abide the event; and the costs may be recovered in like manner as a debt adjudged by the Court to be paid can be recovered.

As to costs in various cases, see Index, title Costs.As to fixing amount of costs at trial, see Thompson v. Rowe, 3 V.L.R. (L.) at

pp. 56 and 135 ; Anderson r. Ziegler, 3 V.L.R. (L.) 338.As to rules by which it is presumed judges will be guided in exercising their dis

cretion, see Jones v. Curling, 13 Q.B.D. 265 ; Cooper v. Whittingham, per Jessel, M.R.,L.R. 15 Ch. D. 504; Upmann v, Forrester, 24 Ch. D. 231; Huxley v. West London, etc.,Ry. Co., L.R., per Watson L. J., 14 App. Ca. 33.

The judge may inform the jury what amount of damages will carry costs, if they desire to know it. Kilmore v. Abdoolah, 27 L.J. Ex. 307 ; Wakelin v. Morris, 2 F. & F.26 ; Nash v. Miller, 1 A. J.R. 64.

If the judge has general jurisdiction, there is no appeal as to costs. Farrow v.Hague, 33 L.J. Ex. 261, per Martin, B.; Dawson v. Harrison, 31 L.J. C.P. 168;Churchward v. Coleman, 36 L.J. Q.B. 57 ; Plumb v. Craker, L.R. 16 Q.B.D. 40.

As to judge’s power to alter costs after hearing, see Jones v. Jones, 17 L.J. Q.B.170 ; Forsdike v. Stone, L.R. 3 C.P. 511; Ex pctrie Simpson, 8 S.C.R. (N.S.W.) 125.

When a case is heard before a jury and the jury are unable to agree, the successful party on a second trial of the case is not entitled to costs of. the first trial. Ready v.Byrne, 2 Q.L.J. 8, 20.

121. Except as hereinafter provided all costs and Costs to becharges as between the parties shall be taxed by the [compare registrar of the Court in which they are incurred, but the jp & 52 vie. taxation of the registrar may be reviewed by the Judge °‘ ’8' 'on the application of either party: And no costs or chargesshall be allowed on taxation which are not sanctioned by the scale of costs then in force.

As to taxation, see also r. 149.The Supreme Court cannot, under s. 151, order the judge to review the taxation.

Clifton v. Furley, 7 H. & N. 783.


Fees to 122. The fees to be allowed to barristers and solicitorssohStors8 aS? practising in a District Court for appearing or acting on expensesto behalf of a party to an action or other proceeding, and the witnesses, expenses to be paid to witnesses, shall be according to the

scale prescribed by the E-ules of Court:Provided that in an action for the recovery of money in

which the sum sued for does not exceed ten pounds no fees shall be allowed as between the parties to barristers or solicitors to any greater amount than might have been allowed if the action had been brought in the Small Debts Court.

As to appeal from Small Debts Court, see ss. 156, 157.For further as to expenses of witnesses, see ss. 103, 135, 157, and rr. 115, 143, 144.

Fixed costs may be allowed in certain cases.

123. In any action, the Judge may give judgment for costs in a fixed sum not exceeding thirty pounds, exclusive of mileage and witnesses’ expenses, instead of giving a judgment for costs to be taxed by the registrar.

As to taxation, see also r. 149.

Costs where 124. When an action or appeal is brought in a District jurisdiction! Court which the Court has not jurisdiction to try or hear, [Compare the Judge shall order the action or appeal to be struck out, c. 43, s. 114.*] and shall, unless the parties consent in writing that the

Court shall have jurisdiction to try the action or appeal, have power to award costs, to the same extent, and recoverable in the same manner, as if the Court had had jurisdiction in the matter of the action or appeal, and the plaintiff had been nonsuited or the appeal had been dismissed.

For form of agreement to give jurisdiction, see f. 3.As to practice in consent jurisdiction, see r. 34.As to consent jurisdiction generally, see s. 61.As to consent to try interpleader issue where rules not complied with, see r. 177.As to costs in Supreme Court where action could not be brought in District Court

without consent of defendant, see s. 127.As to appeals to District Court, see ss. 156 to 159.As to such costs, see R. v. Cope, ex parte Rawson, 9 V.L.R. (L.) 294; Lawford v.

Partridge, 26 L.J. Ex. 147; R. v. Cope, ex parte Smillie, 6 V.L.R. (L.) 366.

Costs between 125. Costs and charges of proceedings in a District ciient°r and Court as between solicitor and client may be taxed by the [Compare Judge of the Court in which they were incurred, or by c.143 ^ lia] the taxing officer of the Supreme Court.

As to taxation, see also r. 149.

............... Costs in Supreme Court of Actions that might he broughtin a District Court.

No costs in 126. If in an action in the Supreme Court the plaintiffaction under recovers judgment by default, verdict, or otherwise, for a [Compare11 S’sim not exceeding thirty pounds, the plaintiff shall have ^43 Trun judgment to recover such sum only and no costs, except

’9’ ' in the cases hereinafter mentioned.As to jurisdiction of Supreme Court under this Act, see Index, title Supreme Court. The discretion inherent in the court to award costs is taken away by this section,

' and the court will refuse to certify for costs in cases under the Act, unless satisfied thatthe provisions of the Act arc applicable to the case. Lange v. Burton Brewery Co. Ld., 4 Q.L.J. 182.

55 YIC. No. 33. 47

127. If the plaintiff in such an action recovers a sum Exceptions, not exceeding thirty pounds, and a Judge of the Supreme jjiXIss Vic. Court certifies— c. 43, s. ii6.]

(1) That the action was one which could not have been brought in a District Court without the defendant’s consent; or

(2) That an officer of the District Court was a party (except in respect of claims to goods taken in execution of the process of the Court, or the proceeds in virtue thereof); or

(3) That it appears to him that there was a sufficient reason for bringing the action in the Supreme Court, either by reason of—

(a) The probable cost of trial in a District Court; or

(b) The questions of law involved in the case; the plaintiff shall have the same right to a judgment to recover his costs that he would have had if the last preceding section had not been passed.

If a plaintiff recovers exactly thirty pounds in a Supreme Court action, it would ' .appear that he is entitled to costs on the District Court scale only, except in the cases 4here specified, Millington v. Harwood, W.N. 1892, p. 87. But see Judicature Act, 1O. LIY., v. la (P. & W. 1958).

128. When#in an action in the Supreme Court thecoatsand defendant appears to the writ, and the plaintiff recovers judgment for a sum not exceeding thirty pounds in a3 *summary manner by order of a Judge upon proof that there is no defence to the action, the plaintiff shall he entitled to recover costs against the defendant, but the amount of the costs shall not, unless the Judge certifies as in the last preceding section mentioned, exceed the amount of costs which would have been recoverable if judgment had been recovered in a District Court by judgment summons under the provisions of this Act.

129. When an action is brought in the Supreme Removal ofCourt which might have been brought in a District Court without the defendant’s consent, the defendant may at any Court, time apply to the Court or a Judge for an order remitting 5i°&152 vi0. the action to a District Court, and unless it is shown by c. 43, s. 69.] the plaintiff—

(1) That unnecessary delay would be caused by a trial in a District Court; or

(2) That, either by reason of the probable cost of trial in a District Court, or by reason of the questions of law involved in the action, or because there is reason to believe that a fair trial cannot be had in a District Court, the case ought to be tried in the Supreme Court;

the Court or Judge shall make an order accordingly.

48 DISTEICT C0TJETS ACT, 1891.

Thereupon the registrar of the Supreme Court shall transmit to the registrar of the District Court to which the action is remitted a copy of the order, together with a copy of the writ and of the pleadings (if any).

And the Judge of the District Court shall appoint a day for the trial of the action, and notice of it shall be sent by the registrar by post or otherwise to both parties or their solicitors, and after the trial the registrar of the District Court shall certify the result to the registrar of the Supreme Court, and judgment in accordance with the certificate may be signed in the Supreme Court.

The costs of the parties in respect of the proceedings subsequent to the order and up to judgment shall be allowed according to the scale prescribed in District Courts. The costs of any other proceedings shall be in the discretion of the Supreme Court or a Judge thereof.

For practice on mittimus, see rr. 15, 16, 150 to 153, and ff. 64, 65.For form of judgment in Supreme Court on certificate of registrar of District Court,

see 40 Vie. No. 6, App. D. 12 (P. & W. 1999).For order of Supreme Court to try action in District Court, see 40 Vic. No. 6,

App. H. 36 (P. & W. 2028).I . Even where the subject matter of the action is within the jurisdiction of the

District Court, it does not follow that the case will be transferred, except for special reasons, Picard v. Hine, 18 L.T. 704; but it is doubtful whether this case is applicable to s. 129. The application to remit must be bond fide, Maudesley v. Maudesley, 18 L.T. N.S. 51. When there is an honest intention to apply for judgment under s. 77, the application to remit should be adjourned until the other application has been disposed of, Smith v. Hurley, W.N. 1884, 99.

Where the defendant was an officer of the court to which it would have been proper to transfer the action, it was transferred to an adjoining district. Linford v. Gudgeon, L.R. 6 Ch. 359.

Where an order is made, the Supreme Court retains jurisdiction until transfer is completed. Therefore, if the defendant obtain an order, but plaintiff fails to enter case for trial pursuant thereto, the Supreme Court may dismiss case for want of prosecution. David v. Howe, 27 Ch. D. 533; and see R. v. Holroyd, 32 W.R. 370.

As to costs, see Stanley v. Neil], 4 Q.L.J. 55.The order (required by r. 150) should be transmitted in reasonable time. Oliver v.

Sheppard, Knox 515.No appeal lies against the order. Ex parte Jones, 12 S.C.R. (N.S.W.) 284.The order cannot be questioned in the court below. Blades v. Lawrence, L.R. 9,

Q.B. 374. ... . .A mere irregularity in the order or the mode of obtaining it would no doubt be

waived by appearance in the District Court. Tomkins r. Beard, 18 L.T. 326.Qucerc : Does the word action include counter-claim ? Where the original claim had

been abandoned and the counter-claim was remitted to an inferior court for trial, it was held by Smith and Grantham, J. J., in Kirschman v. Fitch, 7 Times L.R. 475, that under the County Courts Act of 1888 a judge of a County Court had no jurisdiction; but see ss. 109 and 111 and r. 122; and for the practice in the Supreme Court, Carr Jeffs, 4Q.L.J. 50. .... .

The effect of the order remitting an action to the District Court is to convert it into a District Court action. Moody v. Steward, L.R. 6 Ex. 35; Bowles v. Drake (C.A.) 8 Q.B.D. 325, 327; but it has been held that there is no appeal from the judgment of the District Court in these actions. The proper course is to move for a new trial in the Supreme Court. Balmforth v. Pledge, 35 L.J. Q.B. 169; Moscrop r. Jacobs, Knox 324; James v. Lynn, 13 Q.B. 845; Brown v. Hutchinson, 13 Q.B. 185.

Where a case has been remitted to the District Court, the District Court judge has no power to make an order as to costs, but the registrar of the Supreme Court may in such a case tax the costs on the District Court scale. Crosby v. Landy, 1 Q.L.J. 57.

When an action has been remitted to the District Court under this section, a judge of the Supreme Court has no jurisdiction to award costs. The application must be made to a judge of the District Court. Harris v. Judge, W.N. (92) 103.

An action should be remitted to the District Court held at the circuit town or within the district of the place where the venue is laid in the action, and should only be changed on the same principles as apply to a change of venue in Supreme Court actions. Young v. Iguana G.M. Co., 4 Q.L.J. 177.

Where no place of trial is mentioned in the statement of claim in pleadings in the Supreme Court, the venue is at Brisbane, unless a judge otherwise orders. Order XXXV., r. 1 (P. &. W. 1946).

55 VIC. No. 33. 49

130. A person against whom an action for a wrong Frivolous is brought in the Supreme Court, whatever the amount claimed may he, may, upon an affidavit that the plaintiff referred to has no visible means of paying the costs of the defendant if a verdict is not found for the plaintiff, call upon the [Compare plaintiff to show cause before a Judge of the Supreme Court in chambers why he should not give security for the 66,69.] defendant’s costs of the action, and why in default of such security the action should not be remitted to a District Court, or the proceedings in the action he stayed.

Upon the hearing of the application, the Judge, unless he is satisfied that the plaintiff has a cause of action which ought to he prosecuted in the Supreme Court, may order that the plaintiff shall within a time mentioned in the order, give security for the defendant’s costs to the satisfaction of the Judge, and that, in the event of the plaintiff failing to give the security, the action shall he remM*~~ to a District Court to he named in the order, the event of such failure all proceedings in the gK®6n be i stayed. f(sr;f ■

When such an order is made, if the plaintiff fails to give the security within the time limited by the order, the plaintiff shall, unless the proceedings are directed to-be stayed, lodge the original writ and the order with the registrar of the last-mentioned Court, and the Judge of that Court shall appoint a day for the trial of the action, and notice of it shall he sent by post or otherwise by the registrar to both parties or their solicitors.

The action and all subsequent proceedings therein shall be tried and taken in such Court as if the action had originally been commenced therein, and that Court shall have jurisdiction to entertain and decide the same ; and the costs of the parties in respect of the proceedings subsequent to the order of the Judge of the Supreme Court shall be allowed according to the scale of costs prescribed in District Courts, and the costs of the order and all proceedings previous to the order shall he allowed according! to the costs for the time being allowed in Supreme Court’ actions.

As to plea of justification in tort, see s. 71, r. 6G.For further as to stay of proceedings, see Index, title Stay.Visible Means.—The only ground for the application is “ that the plaintiff has no

visible means of paying the costs of the defendant if a verdict is not found for the plaintiff.” R. v. Judge of Marylebone, 50 L.T. 97.

As to what constitutes visible means, see Lea v. Parker, L.R. 13 Q.B.D. 835;Watson v. McCan, 6 L.R. Ir. 21; Heise v. Dewing, 7 A.L.T. 73; Pilley v. Pilley, 15 V.L.R. 57 ; Rismondo v. Rismondo, 11 V.L.R. 541.

This is a matter of evidence ; and the judge has a discretion. Lea v. Parker, supra.“Visible means ” signifies tangible means—i.e.f property which the defendant could,

reach in the event of his obtaining a verdict. Counsel v. Jarvie, Ir. R. 5 C.L. 74, 77.

Semble “ought to be prosecuted in Supreme Court ” means presenting exceptional legal difficulties. Buzolich v. Fletcher, 3 A.L.T. 15; Nantes v. Shire of Towong, .9 A.L.T. 155. Or involving complicated rights, Hodsman v. Maxwell, 14 V.L.R. 121;

' O’Farrell v. Syme, 16 V.L.R. 422.Where a woman without means brought an action for slander imputing want of

chastity to her, the court refused to remit the action. Critchley v. Brown, 2 Times L.R. 238.

No order can be made on the ground that one plaintiff is out of the colony and the other insolvent. Sykes v. Sykes, 38 L.J. C.P. 281.

If the plaintiff fails to satisfy the judge, the conditional order becomes absolute. Taylor v. Port, 10 V.L.R. (L.) 300.

Applications under this section should be made as soon as possible after service of writ, and if not made till after delivery of statement of claim the reason should be explained. Jackson v. Nathan, 9 A.L.T. 3.

The order cannot be made without the affidavit. R. v. Stonor, (2) 50 L.T. 27.Until the order is lodged with the registrar of the District Court, the Supreme

Court may rescind or vary the order, and may enlarge the time for giving security. • Welply v. Buhl, L.R. 3 Q.B.D. 253.

As to procedure when order not so lodged within reasonable time, see also McCoy v. Keane, 9 A.L.T. 61; David v. Howe, L.R. 27 Ch. D. 533; R. v. Holroyd, 32 W.R. 370, and s.c. nom. Driscoll v. King, 49 L.T. 599.

After writ and order have been so lodged, the Supreme Court has no further jurisdiction. Moody v. Stewart, L.R. 6 Ex. 35.

The District Court has then power to deal with all the costs, Bowles v. Drake, L.R. 8 Q.B.D. 325; and may stay the proceedings, R. v. Bayley, L.R. 8 Q.B.D. 411; but semble the judge cannot add a defendant without his consent, Mullereisen v. Bannister,

. L.R. 20 Q.B.D. 667.As to appeal from the order, see Owens v. Woosman, L.R. 3 Q.B. 469 ; Palmer v.

Roberts, 29 L.T. N.S. 403; Jennings v. London Omnibus Co., 30 L.T. 266; Coxwell v. * . London Omnibus Co., 27 W.R. 381; Rippon v. Joyce, 31 L.T. 475; but a strong case must

' be made. The affidavit must be produced on the appeal. Holmes v. Mountstephen, L.R.>; 10 C.P. 474.

Action can only be remitted to the District Court in which it might have been ' « commenced. Linford v. Gudgeon, L.R. 6 Ch. 359 ; but see Owens v. Woosman, supra.


Amendment.As to amend- 131. A Judge of a District Court may at any time dcfeotfand amend any defect or error in a civil proceeding, whether errors of pro- there is anything in writing to amend by or not, and [Compare*0* whether the defect or error is that of the party applying 51 k 52 vic. to amend or not; and an amendment may be made upon c. 43, s. 87.] Qr wjph0ut payment of costs and upon such terms as the

Judge thinks fit, and all such amendments as are necessary for the purpose of determining in the existing action the real question in controversy between the parties shall he so made.

As to amendment in various cases, see s. 158, and. rr. 70, 82, 83, 87 to 96.Summons and particulars should not be construed too strictly, but should have a

reasonable construction. Whao should be considered is whether an inaccuracy in them could have misled the defendant as to the nature of plaintiff’s demand. Staneliffe v.

\ Clarke, 21 L.J. Ex. 129. J".............................There is no kind of error or mistake which, if not fraudulent or intended to over-

*•* reach, a court ought not to correct if it can be done without expense to the other party,. for courts of justice do not exist for the sake of discipline, but for the sake of deciding

matters in controversy, and amendments for this purpose ought not to be regarded as matters of favour or of grace ; per Bowen, L. J., in Cropper v. Smith, 26 Ch. D. 710. An amendment should be allowed on such terms as the circumstances demand, where the other party would not be seriously or irremediably damnified, and no injury would be caused to him which would not be compensated to him by costs. Clarapede v. Commercial Union Association (C.A.), 32 W.R. 262; A.S.N. Co. v. Smith, 14 Ap. Cas. p. 320; Tildesley v. Harper (C.A.), 10 Ch. D. 393. In re Trufort, Trafford v. Blanc, 34 W.R. 56; Ridings. Hawkins, 14 P.D. 59; Stewart v. N. Metrop. Tramways Co., 16 Q.B.D. 556.

It is for the judge to deal with any informality in a plaint, as it is a mere matter of practice which will not be noticed by a court of appeal. Sargent v. Wedlake, 11 G.B. 732, 736, per Maule, J.

The reality must be looked at, and not the mere form. Shickle v. Lawrence, 2 Times L.R. 776.

Leave should always be given where there is a mere slip. Clarke v. Yorke, 31 W.R. 62; Griffiths v. London and St. Katherine Docks, 13 Q.B.D. 259.

55 VIC. No. 33. 51

Where there is a variance between the proof and the claim, the proper time to apply for amendment is at conclusion of applicant’s case, but a judge sitting alone may allow an amendment after he has begun delivering his decision. Rainy v. Bravo, L.R. 4 P.C. 287.

As to amendment allowed without terms in case of mere blunder, see Metzner r. Bolton, 23 L.J. Ex. 130; St. Losky v. Green, 30 L.J. C.P. 19; Buckland v. Johnston, 23 L.J. C.P. 204; Pratt v. Hanbury, 19 L.J. Q.B. 17; Knowlman v. Bluett, L.R. 9 Ex. 1; Roles v. Davis, 28 L.J. Ex. 287.

An amendment raising an entirely new action at a late stage of a proceeding should usually be refused. Newby v. Sharpe (C. A.), 8 Ch. D. 39 ; Clark v. Yorke, 47 L.T. 381; Hipgrave v. Case (C.A.), 28 Ch. D. 356; Clark v. Wray, 31 Ch. D. 68. Lowther v. Heaver, 41 Ch. D. 248. See, however, Laird v. Briggs (C.A.), 19 Ch. D. 22 ; Cargill v. Bower, 10 Ch. D. 502.

Amendments raising a different question from that which the parties came to try should not be allowed. Lucas v. Tarleton, 3 H. & N. 116 ; Dwyer v. O’Mullen, 13 V.L.R. (L.) 933; Wilkin v. Reed, 23 L.J. C.P. 193; Cawkwell v. Russell, 26 L.J. Ex. 34; Bradworth v. Foshard, 10 W.R. 760 ; Jacobs v. Seward, L.R. 5 H.L. 464.

Joining a wife is not a mere amendment. Garrard v. Guibilei, 31 L.J. C.P. 131. Affirmed on appeal, ib. 270; but see r. 92.

Amendment cannot be made to confer jurisdiction, Hopper v. Warburton, 32 L.J. Q.B. 104. Or where it would work injustice—i.e., where it has become impossible to place the opposite party in the place in which he formerly stood, Steward v. North Metropolitan Tramway Co. (C.A.), 16 Q-B.D. 556.

The court is bound to allow any amendment which would tend to determine the real question in controversy, Kurtz v. Spence, 36 Ch. D. 774 ; A.S.N. Co. v. Smith, 14 Ap. Cas. 320; but not for enabling the defendant to raise a purely technical objection to plaintiff’s right to sue, per Fry, J., in Collette v. Goode, 7 Ch. D. p. 847. But see Laird v. Briggs, 16 Ch. D. p. 445, and per North, J., in Edevain v. Cohen, 41 Ch. D. p. 566.

Judge may correct an error in the addition of the amounts of the items in the particulars, North v, Holroyd, 37 L.J. Ex, 42. Or in the description of a party, Mills v. Scott, L.R. 8 Q.B. 496.

Judge has power to amend without consent. Parsons v. Alexander, 5 E. & B. 263 ; Cannon v. Johnston, 21 L.J. Q.B. 164. See also note to s. 56.

Refusal of amendment is no ground for new trial. Holden v. Ballantyne, 29 L.J. Q.B. 148.

As to adding a count in particulars or a plea or ground of defence, see Morgan r* Pike, 23 L.J. C.P. 64; Cornish v. Abingdon, 1 F. & F. 562; Myers v. Barrett, 2 F. & F* 34; Martyn v. Williams, 26 L.J. Ex. 117 ; Hughes v. Bury, 1 F. & F. 374.

As to amendment of parties, see also Clay v. Oxford, L.R. 2 Ex. 54 ; Bolingbroke v. Townsend, L.R. 8 C.P. 645 ; Galloway r. Bleadon, 1 M. & Gr. 247 ; La Banca Nazionale v. Hamburger, 2 H. & C. 330; Prior i\ Local Board of W. Ham, 15 L.T. N.S. 250.

A bond fide mistake of law or fact is ground for relief in case of misjoinder or nonjoinder of parties, Duckett v. Gover, 6 Ch. D. 82; Clowes v. Hilliard, 4 Ch. D. 413; but not where introduction of new plaintiff would make an entirely new case, New Westminster Brewery v. Hannah, (C.A.) W.N. 1877, 35.

As to when plaintiff has altogether mistaken the defendant, see Hancocks v. Lablache, 3 C.P.D. 197.

As to amendment in plaintiff’s name or description, see Mills v. Scott, L.R. <8Q.B. 496.

Judgment and New Trial.. 132. Every judgment, except as herein provided, shall Judgment to

be final and conclusive between the parties; but the Judge^e^new may nonsuit the plaintiff in any case in which proof is not trial granted, given entitling him to judgment, and may also in any case gi&^lvic. order a new trial, to be had upon such terms as he thinks 43, s. 93.] reasonable, and in the meantime may stay the proceedings.

For further as to stay of proceedings, see Index, title Stay.The judgment is a bar to action for original consideration in any other court,

Austin v. Mills, 23 L.J. Ex. 40; Elderkin v. Berkeley, 22 L.J. Q.B. 281; Routledge v.Hislop, 29 L.J. M.C. 90. And a party cannot in another court raise a material question determined against him by it, Flitters v. Alfrey, 10 L.R. C.P. 29.

For plea of judgment recovered in District Court, see Stanton v. Styles, 5 Ex. 578.As to power to alter judgment after it is pronounced, see note to s. 106.Nonsuit.—As to nonsuit, see ss. 109, 111, and r. 94, and f. 54.Judge must not nonsuit without plaintiff’s consent. Staneliffe v. Clarke, 21 L.J.

Ex. 129; Kershaw v. Chantler, 26 L.T. N.S. 474; Fletcher v. London and N.W. Ry.(1892), 1 Q.B. 122; Creek v. Newlands, 4 V.L.R. 414; Rule v. Lobb, 4 V.L.R. 427;Ferguson v. Sporling, 9 V.L.R. (L.) 111.

Counsel cannot refuse to be nonsuited when the matter is one of pure law; but when the matter consists of a question of mixed law and fact, counsel can insist upon it going to the jury. Rule as to nonsuit is not changed by the fact that the judge is discharging both the functions of judge and jury. Kennedy v. Neill, 1 Q.L.J. 65.


«

As to nonsuit on hearing the opening of plaintiff’s counsel, see Richardson v. Silvester, L.R. 9 Q.B. 36, per Blackburn, J. But a plaintiff cannot be nonsuited against his will; and as the'.words of the section are “ in any case in which proof is not given, query whether the judge can now exercise this power.

As to remedy where judge declines to hear a case after opening of counsel, see Ex parte Conway, 7 S.C.R. (N.S.W.) 209; Sempill v. Cumming, 9 S.O.iv. (N.S.W.) 128.

Plaintiff may elect to be nonsuited at any time before verdict or judgment, but not after. Staneliffe v. Clarke, 21 L.J. Ex. 133; Blenkison v. Great Central Co., 2 -b. &437; Robinson v. Lawrence, 21 L.J. Ex. 36 ; Outhwaite v. Hudson, ib. 151.

As to when nonsuit may be entered, see Giblin v. McMullen, L.R. 2 P.C. 317, Metropolitan Ry. Co. v. Jackson, Ltd., 3 App. Ca., per Cairns, L.C., atl97; losterr. Green, 8 V.L.R. (L.) 19; Smyth v. Shire of Kyneton, ib. 231; Wharton v. Tuohy, 1 W. & W. (L.) 217 ; Burns v. Slater, 5 A. J.R. 168 ; McLuskey v. Forsyth, 13 V.L.R. 146 ; Gordon v. Murray, 15 V.L.R. 110. ^

Ground of nonsuit should be specific. Band of Hope Co. v. Mackay, 2 V.R. (L.)lo8. Semble plaintiff should not be nonsuited merely because particulars disclose no

cause of action. Mayor of Sandhurst v. Sherbon, 4 W.W. & A.B. (L.) 37; Ryan v. Topham, 5 V.L.R. (L.) 281; but see Richardson v. Silvester, L.R. 9 Q.B. 36.

Improper admission of evidence is no ground for nonsuit. Small v. Glen, 6 V.L.R. (L.) 150.

Nonsuit ought not to be entered where evidence is both ways. Foster v. Green, 8 V.L.R. (L.) 19.

As to setting aside nonsuit, see Simpson v. Clayton, 2 Bing. N.C. 467 ; Wilkinson v. Whalley, 12 L.J. C.P. 270; Sweet v. Lee, 3 M. & G. 452.

As to appeal, see Harvey v. Shire of St. Arnaud, 5 V.L.R. (L.) 312 ; Broadbent v. Vanrennen, 1 W. & W. (L.) 366 ; Davidson v. Brown, 5 V.L.R. (L.) 288; Henry v. Kidd, 4 V.L.R. (L.) 466 ; Smith v. Malleson, 3 A. J.R. 53.

New Trial.—For practice or new trial, see ss. 14, 110, 147, and rr. 159, 160, 167, and f. 66. ^

Judge having once refused to grant a new trial is functus officio, and cannot afterwards grant one. Gt. Northern Ry. Co. v. Mossop, 25 L.J. C.P. 22.

When a judge refuses a new trial on the grounds of surprise, and of the verdict being against the weight of evidence, he is f unctus officio; but he may postpone the application for the production of further evidence. No prohibition lies to the judge of a District Court if he comes to a wrong decision, since the subject of the suit, and the subject of the application, and the reception of evidence are within the jurisdiction of such judge, R. v. Judge of the Greenwich County Court and Moxon, 57 L.J. Q.B. 446; (C.A.) 37 W.R. 132, 5 Times L.R. 74. As to reconsideration of decision, see also Barton v. Titmarsh, (C.A.)49L.J. Ex. 573.

Where a second trial is ordered upon payment of costs which are paid, the party accepting them is precluded from afterwards objecting to the order. Sparrow v. Reed, 17 L.J. Q.B. 183. .... . ,

Notwithstanding omission to give notice in due time, judge may entertain the application for new trial, Carters. Smith, 24 L.J. Q.B. 141. The right to receive notice may be waived by the opposite party. Park Gate Co. v. Coates, L.R. 5 C.P. 634.

As to appeal from order refusing new trial, see Waxman v. McAuliffe, 5 V.L.R (L.) 48; Dinger v. Mathews, 88 L.T. Journal 139, overruling Morris v. Lowe, 34 W.R. 45 ; Jacob v. Dawkes, 56 L.J. Q.B. 446; McHardy/r. Liptrott, 19 Q.B.D. 151. No appeal lies when the application was made merely on the ground that the verdict is against the evidence, Wilkins v. Leeds Co., 82 W.R. 461.

An appeal lies to the Supreme Court against an order of a District Court Judge granting a new trial on the ground that his decision is wrong in point of law, Pole v. Bright (1892), 1 Q.B. 603.

A prohibition will not be granted if an order for a new trial has been made upon an irregular notice to the other side. The proper course is to apply to the District Court Judge to set aside the order for a new trial. Jones’ Trustees v. Gittins, 51 L.T. 599.

Where a new trial is granted on account of the unsatisfactory nature of the verdict, it should not be made conditional on the party applying, paying the costs of the previous trial. Hill v. Metropolitan Asylums Board, 47 J.P. 148.

' Where the result of the trial of cross-actions is that there are contradictory verdicts, either both actions will be ordered to be tried again together; or if one verdict be against the weight of evidence, and the other not, the former may be set aside. A.S.N. Co. u. Smith, 14 Ap. Ca. 321.

A judge has not an absolute discretion to set aside a verdict merely because he is dissatisfied with it. He is bound by the general rules of law laid down in the higher courts relating to the granting of new trials. Murtagh v. Barry, 6 Times L.R. 300 ; L.R. 24 Q.B.D. 632.

In order to see whether a judge has jurisdiction he should take evidence of the value of the claim, and if he is misled or mistaken as to the effect of that evidence he has power to grant a new trial. Lister v. Wood, 5 Times L.R. 475; (C.A.) 23 Q.B D. 229.

Where there is a new trial, either party may demand a jury for the second trial, although there was no jury at the first. R. v. Harwood, 22 L.J. Q.B. 127 ; Ford v. Taylor, 3 C.P.D. 21.

55 VIC. No. 33. 53

Application for new trial refused on ground that the point was trial until the case was closed on both sides. Eyre v. Highway Bq$rd Union, (C.A.) 8 Times L.R. 648.

A party is not entitled to a new trial upon any ground found*When it appeared that the real question between the parties to an a default of the plaintiff not been tried, the court upon the application new trial directed a nonsuit to be entered, with a direction that it shorn judgment upon the merits. Hempsted v. Gardner, 1 Q.L.R. Pt. III. 307

The power to grant a new trial under the statute is not interfered with by .which is merely a directory rule of practice; therefore, notwithstanding the omission to give the notice required by the rule, the judge may entertain an application for a new trial. Carter v. Smith, 24 L. J. Q.B. 141.

133. When judgment is obtained in a District Court when judg- for a sum not exceeding twenty pounds, exclusive of costs, “^exceed the Judge may order the sum and costs to be paid at twenty • specified times, by instalments, and all such moneys shall ^“n^“dge he paid into Court; but in all other cases he shall order payment by

the full amount for which judgment is obtained to he paid [Compare13 either forthwith or within fourteen clear days from the si & 52 Vic. date of the judgment, unless the plaintiff or his barrister, °‘43, s- 10S‘^ solicitor, or agent, consents to its being paid by instalments, in which case the Judge shall order it to be paid at the times and by the instalments consented to; and all such moneys, whether payable in one sum or by instalments, shall he paid into Court.

As to execution in default of payment of instalments, see ss. 176, 177, and r. 170.As to time for payment by instalments, see r. 155.As to payment into and out of court, see also Index, title Payment.If such an order be made at the trial when judgment is delivered, it forms part of

the judgment, Robinson v. Gell, 21 L.J. C.P. 155. If made after judgment, semble it should be drawn up and served on judgment debtor, Ely v. Moule, 5 Ex. 918, notwithstanding that an ordinary judgment for the payment of money requires no service.

As to judgment not carrying interest, see R. v. Judge of Essex County Court, L.R.18 Q.B.D. 704.

Arbitration.134. The Judge may in any action order the action, Power to refer

with or without other matters within the jurisdiction of [Compare'0” the Court in dispute between the parties, to be referred to 51 & 52 Vie. arbitration, to such person or persons and in such manner °-43, s- 104d and on such terms as he thinks reasonable.

The reference shall not be revocable by either party except by consent of the Judge, and the arbitrator or arbitrators or umpire shall hear and determine the case, and the award given by him or them shall he entered as the judgment in the action, and shall he as binding and effectual to all intents as if it were the judgment of the Court:

But the Judge may, on application to him at the first sittings of the Court held after the expiration of one week after the entry of the award, set aside the award, or refer the award hack to the arbitrator, arbitrators, or umpire, or,


Power tocompelattendancewitnessesbeforearbitrators.

Attachment of goods of defendant.

with the consent of the parties, revoke the reference or order another reference to he made in the manner before prescribed.

As to when order to refer may be made, see r. 1G1.As to notice of application to set aside award, see it. 1G2, 163.For form of order of reference, see f. 68.The order of reference is proof in other proceedings of an agreement to refer, Roper

v. Levy, 21 L. J. Ex. 29. The death of either party before award would revoke authority of arbitrator, Cooper v. Johnson, 2 B. & A. 394.

135. When a reference to arbitration is made by a f Judge, he may, by an order to be made for that purpose,

direct the issue of subpoenas requiring the attendance and examination of any person to be named, or the production of any documents to be mentioned, in the order.

Any such subpoena may be served in the same manner as a subpoena to attend at a trial; and if an appointment of the time and place of attendance in obedience to it, signed by one at least of the arbitrators or by the umpire before whom the attendance is required, is served either together with or after the service of the subpoena, disobedience to the subpoena shall entail the same consequences as in the case of a subpoena to attend at a trial of an action :

But a person shall not be compelled to produce under the subpoena any writing or other document which he would not be compelled to produce at a trial.

Every application made to the Judge for such an order must set forth the place where the witness whose attendance is required is residing at the time.

Every person whose attendance is so required shall be entitled to tlie like conduct money and payment of expenses as for and upon attendance at a trial.

For expenses of witnesses, see ss. 103, 122, 157, and rr. 115, 143, 144.

Attachment of Goods.136. If a plaintiff in an action shows to the satisfac

tion of the Judge or Registrar, by affidavit made by himself or another person, that he has a cause of action against the defendant to the amount of ten pounds or upwards, or has sustained damage to that amount, and that— .

(1) The defendant is about to, or is making preparations to, leave the Colony, or to go into remote parts of the Colony, or is about to, or is making preparations to, sell or remove out of the Colony, or into remote parts of the Colony, goods belonging to the defendant; and that—

(2) The action will be defeated by such departure, sale, or removal;

the Judge or Registrar may, upon such terms as to giving security or otherwise as he thinks fit, give leave to the

55 VIC. No. 33.

plaintiff to issue a warrant which shall he called a warrant of attachment and seizure, authorising the bailiff of the Court to seize and attach the goods of the defendant until he gives bail in a sum equal to the plaintiff’s claim and five pounds for costs.

The bailiff shall thereupon seize and attach a sufficient part of the goods of the defendant, and shall return the warrant immediately on its execution.

If the defendant whose goods are so seized or attached, or anyone on his behalf, gives hail with two sufficient sureties in the amount of debt or damages sought to be recovered and five pounds for costs, or deposits the amount sued for and five pounds for costs to abide the event, the action shall proceed, and the bailiff shall release the goods from his possession; but if the bail is not given or deposit made within fourteen days after the return of the warrant the action shall be set down for trial before the police magistrate resident in the town nearest to the place where the goods are seized, and the plaintiff shall at the time appointed prove his debt or damages viva voce to the satisfaction of the police magistrate.

The proofs shall he reduced into writing in the form of a deposition, and shall he signed by the deponents and also by the police magistrate, together with the finding of the police magistrate on the facts, and shall be transmitted to the registrar of the District Court from which the warrant was issued.

Judgment may thereupon be entered by the registrar for the plaintiff in accordance with the finding, and a warrant of execution may he issued thereon for the sale of the goods of the defendant. .

Any such judgment may be set aside by the Judge upon such terms as he thinks just..................................

As to service of summons when defendant about to remove from ordinary jurisdiction of court, see r. 42 ; or where bailiff is prevented, see rr. 54, 55.

As to execution against the person under like circumstances, see s. 170.As to setting aside proceedings, see also s. 110 and r. 159.

Part VI.—Recovery of Possession of Land.137. "When the term or interest of the tenant of any Possession of

land has expired, or is determined by notice to quit or byIand ma? ,be demand oi possession, and the tenant or a person claiming landlords under him actually occupies the land or a part of it, and ^“ex^ed neglects or refuses to give up possession, the landlord may or been bring an action to recover possession, either against the^®™™®d- tenant, or against the person so neglecting or refusing, in 51 & 52 vie. the Court of the District in which the land is situate. c‘43’s'138 ^


Summons. A summons shall thereupon he issued in the prescribed form, addressed to the tenant or the person so neglecting or refusing, and if on the return day the defendant does not show good cause to the contrary, then, on proof of the ; tenancy, and of the defendant’s still neglecting or refusing ; to deliver up possession, and of the yearly value of the land or of the rent, and of the expiration or other determination of the tenancy with the time and manner of the determination, and of the title of the plaintiff, if the title has accrued j since the letting of the land, and of the service of the J summons if the defendant does not appear, the Judge may order that possession of the land he given to the plaintiff either forthwith, or on or before such day as the Judge appoints.

If the order is not obeyed the registrar, whether the order is proved to have been served or not, shall, on the application of the plaintiff, issue a warrant authorising and requiring the bailiff of the Court to give possession of the land to the plaintiff.

As to appeal to Supreme Court, see s. 144.For forms, see ff. 70 to 72.For the jurisdiction of the court in respect of real property, see Index, title Land.As to jury in ejectment, see s. 113.As to warrant being a sufficient authority to enter, see s. 142.The landlord’s remedy is against the tenant or any person claiming under him.

Fearon v, Norvall, 18 L. J. Q.B. 9; Harrington v. Ramsay, 22 L. J. Q.B. 460.But if the objection to the tenancy and claim of ownership are bond fide, the juris

diction ceases. Pearson v. Glazebrook, L.R. 3 Ex. 27; Kerkin v. Kerkin, 2 E. & B. 399.If the defendant raises a question of title, the judge should, as in personal actions,

investigate whether the claim is one that can legally exist before declining to proceed on the ground of want of jurisdiction. Emery v. Barrett, 27 L. J. C.P. 216.

Semble a termor who has granted a sub-lease for the whole term cannot proceed under this Act after the expiration of his term. Ex parte Thompson, 2 S.C.R (N.S.W.) 359. . .

The relation of landlord and tenant must subsist between the parties. Jones v. Owen, 18 L. J. Q.B 8 ; Marwood v. Waters, 13 C.B. 821; Banks v. Rebbeck, 20 L.J. Q.B. 476; Jones v. Thomas, 4 L.T. 210; Ex parte Wooley, 9 S.C.R. (N.S.W.) 305; Ex vatte Rooney, 11 S.C.R. (N.S.W) 384.

On Proof.—i. Tenancy.—A demise from year to year may be proved by payment and receipt of yearly rent. Doe v. Horn, 3 M. <fc W. 333 ; Bishop v. Howard, 2 B. & C. 100. When the defendant has been let into possession under a lease void by the Statute of Frauds, payment and receipt of rent is evidence of tenancy from year to year. Doer. Bell,5 T.R. 471, 2 R.R. 642; Doe v. Amey, 12 A. & E. 476. A general letting without any agreement as to the length of the term or the periods when rent is to be paid creates only a tenancy at will (Richardson v. Landgridge, 4 Taunt 128), which by the receipt of rent is converted into a tenancy from year to year. If, however, the rent is reserved as a yearly rent, though it is received at shorter periods, it is a yearly tenancy. R. v. Herstmonceaux, 7 B. & C. 551. If determinable at three months’ notice, it is a quarterly tenancy. Kemp v. Derrett, 3 Camp. 509. Since the Judicature Act a person occupying under an executory agreement for a lease, not under seal, is to be treated in every court as holding on the terms of the agreement. Walsh v. Lonsdale, 21 Ch. D. 9 ; Furness v. Bond, W.N. (88) 78; Adams v. Clutterbuck, 10 Q.B.D. 403. Now, both at law and in equity the tenant holds under the agreement and is not simply, as he formerly was, a tenant from year to year. The Commissioners, etc., v. The Royal, etc., 26 Sol, Jo. 331. There is only one court, and the equity rules prevail in it. Therefore, a tenant in possession holding under an agreement for a lease (of which specific performance would be decreed, Swain v. Ayres, 21 Q.B.D. 293) holds as if the lease had been granted. Lowther v. Heaver, 41 Ch. D. 264 ; Re Maughan, 14 Q.B.D. 956; Allhusen v. Brooking, 26 Ch. D.551; Strong v. Stringer, 5 Times L.R. 638 ; Pugh v. Heath, 7 Ap. Ca. p. 237; Crump v. Temple, 7 Times L.R. 120 ; but see Hill v. Cox, 1 Q.L. J. 78, and Naumberg v. Albertson’s Executors, 3 Q.L. J. 125.

ii. Determination or Expiration.—If the holding be from year to year a mere denial by the tenant that he holds of his landlord, or other verbal repudiation, is sufficient to entitle the landlord to treat the tenancy as determined. Doe v. Stanion, 1 M. & W„ 695. In the case, however, of a definite term mere words are not sufficient, and some act

55 YIC. No. 33. 57

on the part of the tenant inconsistent with the existence of the relationship between landlord and tenant must be proved. Doe v. Wells, 10 A. & E. 427. As to proof of surrender, see Nickells v. Atherstone, 10 Q.B. 944 ; Lyon v. Deed, 13 M. & W. 285. Notice to quit may, in absence of express agreement, be by parol. Doe v. Crick, 5 Esp. 196. It may be given by the landlord or his agent. One of several joint tenants may give notice for himself and others. Doe v. Summersett, 1 B. & Ad. 135 ; Doe v. Hughes, 7 M. & W. 139. Where a defendant disclaims, and on demand of possession refuses to give up the premises, claiming the property as his own, no notice to quit is necessary. Landsell v. Gower, 17 Q.B.D. 589.

. iii- Title of Plaintiff.—This may be evidenced by length of possession (Doe v. Cook, 7 Bing. 346); by registered title; by Act of law; by will, or by conveyance.

Good Cause to the Contrary.—The tenant may disprove the tenancy or that it has ended. He may also contradict any facts which tend to prove disclaimer, surrender, or forfeiture, or may show that the forfeiture has been waived, as to which see Arnsby v. Woodward, 6 B. & C. 519 ; Jones v. Carter, 15 M. & W. 718. He may deny the fact or sufficiency of the notice to quit (Fearon v. Norvall (2), 5 I). & L. 439); as that it was bad in form or not given to the proper person, or that it has been waived by acceptance of rent after the expiration of the notice, Good wright v. Cord went, 6 T.R. 219; 3 R.R. 161; and see further, Friend v. Shaw, 20 Q.B.D. 374; Howard v. Smith, 3 Scott, N.R. 574.

The fact of the pendency of an action of ejectment in the Supreme Court is no answer to the summons. Williamson v. Bissill, 7 H. & N. 391.

In which the Land is Situate. —The warrant cannot be issued or executed when the lands are situated without the jurisdiction of the court, although both parties reside within it. Ellis v. Peachey, 18 L. J. Q.B. 137. The party who sues out the warrant is not protected, except against mere irregularities, if he has not the lawful right to the possession of the premises. Hudson v. Walker, L.R. 7 Ex. 55.

138. In any such action against a tenant or other in plaint for person as in the last preceding section mentioned the^c°g2£°f plaintiff may add a claim for rent or mesne profits, or both, plaintiff may down to the day appointed for the hearing, or to any pre-andmesneent ceding day named in the plaint, provided that the claim does profits, not exceed two hundred pounds. eiTltevic.

The objection that other causes of action are improperly joined under this section c. 43, s. 138.] must be made forthwith. In re Durbon ; Durbon v. Collis, 36 W.R. 667.

139. When one half-year’s rent of any land of which Possession of neither the value nor the rent payable in respect of it recovered by exceeds two hundred pounds by the year, is in arrear, landlords for and the landlord has right by law to re-enter for the non- of rent7™6"* payment of it, he may, without formal demand or re-entry, [Compare bring an action to recover possession in the Court of the0.43,s. 139.] District in which the land is situate.

A summons in the prescribed form shall thereupon be Summons, issued to the tenant, and the service of it shall stand instead of a demand and re-entry; and if the tenant, five clear days before the return day, pays into Court all the rent in arrear and the costs, the action shall be stayed.

But if he does not make such payment and does not, on the return day, show good cause why the land should not be recovered, then on proof of the yearly value and rent of the land, and of the fact that one half-year’s rent was in arrear before the plaint was entered, and of the landlord’s power to re-enter, and of the rent being still in arrear, and of the title of the plaintiff, if the title has accrued since the letting of the land, and of the service of the summons if the defendant does not appear, the Judge may order that possession of the land be given to the


plaintiff on or before such day, not being less than fourteen days from the day of hearing, as the Judge appoints, unless within that time all the rent in arrear and the costs are paid into Court.

If the order is not obeyed, and the rent and costs are not so paid, the registrar, whether the order is proved to have been served or not, shall, at the instance of the plaintiff, issue a warrant, authorising and requiring the bailiff of the Court to give possession of the land to the plaintiff, and the plaintiff shall, from the time of the execution of the warrant, hold the land discharged of the tenancy, and the defendant and all persons claiming under him shall, so long as the order of the Court remains unreversed, be barred from all relief.

For further as to stay of proceedings, see Index, title Stay.

Sub-tenant 140. When a summons for the recovery of possessionsummonsfor °f ^an(^ served on or comes to the knowledge of a subrecovery of tenant of the plaintiff’s immediate tenant, the sub-tenant possession being an occupier of the whole or of part of the land sought notice to his to be recovered, he shall forthwith give notice of it to his landlordte immediate landlord, under penalty of forfeiting to the land- [Oompare lord three years’ rack-rent of the land held by the sub

tenant, to be recovered by the landlord by action in the ’ J Court from which the summons was issued, and the land

lord, on the receipt of the notice, if not originally a defendant, may be added or substituted as a defendant.

Service of 141. A summons for the recovery of possession ofaction to*in bind may be served like other summonses to appear to recover plaints, but if the defendant cannot be found, and his place possession of 0f residence is not known, or admission to it cannot be [Compare obtained for serving the summons, a copy of the summons

5S2hi'] sb^h be posted on some conspicuous part of the premises ’ sought to be recovered, and the posting shall be deemed

good service on the defendant.

Warrant to 142. A warrant to a bailiff to give possession of land sufficient to shall justify the bailiff named in the warrant in entering justify entry upon the land with such assistance as he thinks necessary, [Compare an(l in giving possession accordingly, but an entry under oi & 52 vie. the authority of such a warrant shall not be made except c. 43, s. 142.] ketWeen the hours of nine in the morning and four in

the afternoon.Warrant is not conclusive against the person actually in possession, but who is not

the tenant against whom recovery has been had; and if the landlord had not in fact the right of posseesion as against such person, then he may maintain trespass against the landlord for assisting the bailiff. Hudson v. Walker, 41 L. J. Ex. 51, L.K. 7 Ex. 55.

55 VIC. No. 33. 59

143. The warrant shall, on whatever day it is issued, Warrant to be bear date on the day next after the last day named byihreemonths. the Judge in his order for the delivery of possession of [Compare the land in question, and shall continue in force for three 143.] months after such date and no longer, hut an order for delivery of possession need not he drawn up or served.

Part VII.—Appeals, &c.

Appeal from the District Court to the Supreme Court.144. Any party who is dissatisfied with the judgment Appeal to the

of the Court- SETS(1) In an action or matter in which the sum sued certain cases,

for exceeds thirty pounds; 51T52 vie.(2) In an action for the recovery of possession of 43>s- 120-J

land of which the value or rent exceeds thirty pounds by the year;

(3) In an action of replevin in which the amount of rent in respect of which the distress was or might have been made exceeds thirty pounds; or

(4) In proceedings in interpleader in which the amount claimed or the value of the goods in question exceeds thirty pounds ;

may appeal to the Supreme Court.The appellant shall, within the time and in the manner

prescribed, give notice of the appeal to the other party or his solicitor, and shall also give security (to be approved by the registrar) for the costs of the appeal, or shall, instead of giving security, deposit in the hands of the registrar thirty pounds, to answer the costs of the appeal, in the event of the appeal being dismissed.

Notice of appeal shall not operate as a stay of execution upon the judgment, hut the execution may proceed, unless the Judge, or a Judge of the Supreme Court, otherwise orders.

As to appeal from District Court in its insolvency jurisdiction, see “ The Insolvency Act o/1874,” 38 Vic. No. 5, s. 15 (P. & W. 938). ‘

As to appeal from District Court to Supreme Court under “ The Customs Act 1873,” ?ee 37 Vic. No. 1, s. 249 (P. & W. 469).

As to procedure on appeal, see rr. 104 to 168; for forms, see ff. 73 to 76.As to other jurisdiction of Supreme Court under this Act, see Index, title Supreme

Court.For farther as to stay of proceedings, see Index, title Stay.Appeals.—Judgment.—For definition of judgment, see s. 3. -There must be a judgment given before an appeal will be entertained. Roberts

v. Aizlewood, 5 Times L.R. 181.Where 2b pro forma judgment has been to expedite an appeal, and the judge did not

lear the arguments, the Court of Appeal will not hear the appeal. Chapman v. Withers, l Times L.R. 132 ; 51 L.T. 24.

Where a District Court judge sets aside a verdict for the plaintiff as against the veight of evidence and orders a new trial, his decision being based solely on the facts of ;he case, and not on a question of law, the Supreme Court has no jurisdiction to entertain ;he appeal. How v. London and N. W. Railway Co. (1891), 2 Q.B 476; 7 Times L.R. 627 ;

le v. Bright (1892) 1 Q.B. 603.

60 DISTRICT COURTS ACT, 1891.3

. Interlocutory Order.—Semble this section gives an appeal from an interlocutory; decision, as to which see the definition of judgment (s. 3) and Jonas v. Long, 20 Q.B.D. 564 ; Dinger v. Mathews, 88 L.T. 139; Thompson r. Andrew, 9 V.L.R. (E.) 28. . Does this right of appeal include an appeal from the judge’s decision to review, a taxation, of costs under s. 121, Carr v. Stringer, 4 Jur. N.S. 439. Semble it would if his decision was erroneous in point of law, Goodman v. Blake, 19 Q.B.D. 77. If the judge hears an application and refuses to review, the Supreme Court will not grant a mandamus, - Clifton v. Eurley, 31 L.J. Ex. 170. ,

Order of Commitment.—It has been held that no appeal lies from such order, Back- man v. Blowers, 15 Jur. 758; and see Ex parte Robinson, 2 W. & W. (L.) 30. ;

Attachment.—An appeal lies from refusal of judge to order attachment, Vallentinr., Woodley, 5 Times L.R. 462. - ‘

Order Discharging a Debtor from Custody.— See Rowbottom v. Henelly, 6 V.L.R. (L.) 409. '

Interpleader.—As to practice on interpleader, see ss. 113, 180, rr. 177 to 181, and ff. 88 to 93 ; and see Barnard v. Mann, 2 V.L.R. (L.) 140. ,

Where the goods are appraised and a deposit made to prevent a sale, the appraised value is the value for the purpose of appeal, White v. Milne, 58 L.T. 225 ; and if it does not exceed £30 there is no appeal, even though a claim for damages exceeding £30 be made, Lumb v. Teal, 22 Q.B.D. 675.

The claimant, or the execution creditor, or a landlord, who appears on the summons (Foulgar v. Taylor, 29 L. J. Ex. 154) may appeal if his rights are prejudiced.

If the court reverses the judgment and orders a new trial, the order of the District Court for payment of costs will also be reversed. Gage v. Collins, L.R. 2 C.P. 381.

Replevin.—As to practice on replevin, see ss. 113, 169, and rr. 32, 33.Jurisdiction by Consent.—See Groves v. Janseens, 23 L. J. Ex. 91.Jury Trials.—Appeal lies in all cases, irrespective of the fact whether they are

tried by jury or by judge alone. Cawleys. Furnell, 20 L. J. C.P. 197 ; East Anglian Co. v. Lythgoe, 20 L. J. C.P. 84; and see Sheehan v. Park, 8 V.L.R. (L.) 25.

Remitted Actions.—An appeal lies in these as in other actions. Cozens v. Lombard Bank, 1 Ex. D. 404 ; Bowles v. Drake, (C.A.) 8 Q.B.D. 325; Olivers. Lewis, W.N. (1889) 224.

Order Refusing New Trial.—See Dinger v. Mathews, 88 L.T. 139; McHardy v. Liptrott, 19 Q.B.D. 151; Jacob v. Dawkes, 56 L.J. Q.B. 446 ; Waxman v. McAuliffe,5 V.L.R. (L.) 48.

No appeal lies where only ground is that verdict is against evidence. Wilkin v. Leeds Co., 33 W.R. 461 ; Foster v. Green, 30 L.J. Ex. 263 ; Outhwaite v. Hudson, 21 L.J. Ex. 151.

Order Granting a Neio Trial.—Walker v. Graham, 3 A.L.T. 75; Cooper v. Higgins,2 A.L.T. 8. "

Sum Sued For.—If the amount exceeds £30, although the judgment be for a less sum, an appeal lies. Harris v. Dreesman, 23 L.J. Ex. 210 ; but see Mayer v. Burgess, 24 L.J. Q.B. 07. . .

A plaintiff cannot at the trial abandon, under s. 99, the excess of his claim over £30, so as to deprive the defendant of his right of appeal. North v. Holroyd, L.R.3 Ex. 69.

Nonsuit.—See note to s. 132.Grounds of Appeal.—The notice must state the grounds of appeal (r. 165).As to contents of notice of appeal, see Cannon v. Johnston, 21 L.J. Q.B, 164;

Evans v. Matthews, 26 L.J. Q.B. 166; Daniels v. Charsley, 11 C.B. 739; Robinson v. Lawrence, 7 Ex. 128.

Nevertheless the grounds appear to be matters of procedure imposed for the benefit of the respondent, and he may waive objection to them or their absence. . Park Gate Co. v. Coates, L.R. 5 C.P. 634; Ward v. Raw, L.R. 15 Eq. 83; and the appellant is not to be prejudiced by the act of the court or the respondent. Francis v. Dowdeswell, L.R. 9 C.P. 432, per Brett, J.

Question of Fact.—See Cozens ?;. Lombard, L.R. 1 Ex. 404 ; East Anglian Ry. Co. v. Lythgoe, 10 C.B. 726; Turners. G. W. Ry. Co., 2 Q.B.D. 125; Black v. Permewan, Wright, and Co., 7 V.L.R. (L.) 292 ; Dalton v. Dalton, 12 V.L.R. (L.) 202; Brundell v. Wane, 7 V.L.R. (L.) 319; Hamilton v. Sefton, 3 V.L.R. 76.

Where evidence both ways, court will not disturb finding of judge on question of fact. Lee A Andrew, 7 V.L.R. (E.) 92; Daley v. Hughes, 2 A.J.R. 66; Bank of Australasia v. Keave, 8 A.L.T. 12; Nathan v. Tczer, 2 A.L.T. 34.

Question of Law.—See Cawley v. Furnell, 12 C.B. 249 ; Cuthbertson v. Parsons, 12 C.B. 304; Hill v. Perssee, 25 W.R. 275 ; Williams v. Williams, 37 L.J. Ch. 854 ; Jensen v. Hagan, 3 V.L.R. (L.) 21.

Reception of Evidence.—See O’Malley v. Elder, 2 V.L.R. (L.) 39 ; Griffin v. Ross, 11 V.L.R. 183.

Raising Points at Trial.—Appeal court will not entertain objections not taken below. London, etc., Ince. Co. v. Honey, 2 V.R. (L.)10; Yorke v. Smith, 21 L.J. Q.B. 53; Watson v. Ambergate Ry. Co., 15 Jur. 448 ; English v. White, 2 W. & W. (L.) 14. Nor objections which might be cured by amendment. Griffin v. Dunn, 4 V.L.R. (L.) 419; but see White v. Ross, 4 A.L.T. 85, and London, etc., Ince. Co. v. Honey, supra.

The point relied on must be taken in the court below. Clarkson v. Musgrave,9 Q.B.D. 386; Rhodes v. Liverpool Com. Invest. Co., 4 C.P.D. 425; Pierpont v. Cartwright, 5 C.P.D. 139; but the decision may be upheld on other grounds. Chapman v. Knight, 5 C.P.D. 308 ; see also Seymour v. Coulson, 5 Q.B.D. 359, 364; Hill v. Perssde, 25 W.R. 275 ; Cox v. Slater, 14 L.T. 511; Williams v. Evans, L.R. 19 Eq. 547.

55 YIC. No. 33. 61

After making the point the right of appeal is not lost by a party’ proceeding with his case. G.N. Ry. Co. v. Rimell, 18 C.B. 575; S.C. 27 L.J. C.P. 201.

Time for Aotice.—Semble time can be extended for notice of appeal. Tennant v. Rawlings, 4 C.P.D. 133 ; Mason v. Wirral, 4 Q.B.D. 459; Morgan v. Davies, 3 C.P.D.260; Airey v. McMahon, 2 N.S.W. L.R. 132; see also s. 112, and the Judicature Act,Ord. LVI. 26 (P. & W. 1959); but some good ground for indulgence must be shown; mere neglect or ignorance will not suffice. In re New Callao, (C.A.) 22 Ch. D. 484. Be Manchester Building Society, (C.A.) 24 Ch. D. 488.

As to when time for appeal begins to run, see Foster v. Green, 30 L.J. Ex. 263;Hemming v. Blanton, 42 L.J. C.P. 158 ; Wilberforce v. Sowton, 48 L.J. C.P. 28 ; Lond.Ince. Co. v. Honey, 2 V.L.R. (L.) 7; Murray v. Dabb, 9 V.L.R. (L.) 156. #

Where a defeated party to an action has allowed the time for appealing to. expire, and afterwards applies to the court to be allowed to appeal, but without showing any other reason for not having brought his appeal within due time, except inadvertence, leave to appeal will only be granted, if at all, on very stringent terms. Miskin v.Hutchison, 1 Q.L.R. Pt. III. 4.

As to time, when judgment is reserved and notice thereof is afterwards sent to the parties, see Waterton v. Baker, L.R. 3 Q.B. 173, 176, per Cockburn, C.J. ; Francis v.Dowdeswell, L.R. 9 C.P. 423, 430, per Coleridge, C.J.

On appeal from order refusing a new trial, time runs from the date of making the order. Dinger v. Mathews, 88 L.T. 139.

Death of Party.—If respondent dies before appeal heard, appellant may proceed on giving notice to his representatives or parties interested. Hemming v. Williams, L.R.6 C.P. 480. .

Conditions of Appeal.—As to conditions on which appeal is allowed, see Stone v.Deane, El. B. & E. 504; Norris v. Carrington, 16 C.B. N.S. 10; Waterton v. Baker, L.R.3 Q.B. 173; Blenkairne v. Statter, 31 L.T. N.S. 413 Ex.; Wilberforce v. Sowton, 48 L.J.C.P. 28; Griffiths. Clancey, 9 V.L.R. (L.)161; Murray v. Dabb, 9 V.L.R. (L.) 156;Cowl v. Macdonald, 1 S.C.R. (N.S.W.) 341; Murphy v. Conran, 2 N.S.W. L.R. 179.

Respondent may waive conditions. Park Gate Co. v. Coates, L.R. 5 C.P. 634;Ward v. Raw, L.R. 15 Eq. 83; Francis v. Dowdeswell, L.R. 9 C.P. 432; Griffith v. Coleman, 28 L.J. Ex. 134; Walters v. Coghlan, L.R. 8 Q.B. 61; Churchward v. Lyons,2 A.J.R. 118. v ' V'.

Registrar may accept the security of personalty for an appeal, andyffiust 'hot be V-^\guided by the opinion of the respondent’s attorney, but must satisfy himself/ ©tfythe point. VcT' \X.R. v. Stephen, 1 A.J.R. 164. ji / _

’ If he chooses to accept the appellant’s cheque as cash, that is sufficient deposit. < -Xjyf .Whelan v. Hannigan, 4 V.L.R. (L.) 464. ij

If he permits the appellant to withdraw part of the money paid in pending an / ' y appeal, the right of appeal is not affected, as the registrar remains liable for the money. /Bank of Australasia v. Keirce, 8 V.L.R. (L.) 147. . ,

Appeal from northern District Court.—Appeal from Northern District Court.lieiL;.^ to Northern Supreme Court, and parties must exhaust their means of appeal before coming from the Northern Supreme Court to the Full Court. Rodda v. Allen, 2 Q. L. J. 108.

145. At the trial or hearing of an action or matter in when judge which there is a right of appeal, the Judge, at the request ^keest;0”°te of either party, shall make, a note of any question of law of law. raised at the trial or hearing, and of the facts in evidence ^iXITvic. in relation to that question, and of his decision on it, and c. 43,3.121.’] of his decision of the action or matter...............................................

For further in respect of question of law, see ss. 53, 106, 127, 129, 159, and r. 156.The judge must have notice of a point of law being taken, and a request to take the

evidence in relation to it. Morgan v. Rees, (C.A.) 6 Q.B.D. 508, 513, per Bramwell, L.J.Taking of a note is not a condition precedent to right of appeal. Consequently

where without request the judge took a full note and added a statement of the points of law raised and determined, it was sufficient. Seymour v. Coulson, (C.A.) 5 Q.B.D. 359 ; and see also Morgan v. Rees, 6 Q.B.D. 92; Hill v. Perss^e, 25 W.R. 275; Watson v.Issell, 16 V.L.R. 607; Tinsley v. Cook, 2 N.S.W. L.R. 363.

Where the evidence had been given wholly by affidavits and the judge after the trial compiled notes from them, the appeal was heard, Morgan v. Davies, 3 C.P.D. 260 ;The Confidence, 40 L.T. 201. But no indulgence of this kind will be granted unless the point of law relied on has been fairly raised before the judge during the trial. Rhodes v. Liverpool Co., 4 C.P.D. 125 ; Pierpont v. Cartwright, 5 C.P.D. 139 ; Courtis v. Hall,12 V.L.R. (L.) 669; Jones v. Ebsworth, 13 V.L.R. (L.) 346; Schofield v. Duguid,16 V.L.R. 618.

The Supreme Court will not order the District Court Judge to sign a note taken for his own personal use where he states that it is not such as he would have taken if he had been asked to take a note ; but where an appeal had taken place it was intimated by Hawkins, J., that if the judge’s notes omitted to show" a point of law arising at the trial the case could be referred back to him that he might note the point. Great Eastern Railway Co. v. Giddons, 44 J.P. 284 scd quaere.

If no notes have been made by a District Court judge, an appeal cannot be heard unless the judge makes a certificate that no note has been taken. Brown v. Book, 8 Times L.R. 227. *


When copy 146. In any action or matter in which the Judge jnote'to be has at the request of either party made a note as in thegiven. last preceding section mentioned he shall, at the expense5iT&2Vic. of any party or parties to the action or matter, furnish a c. 43, s. i2i.] copy of the note so taken at the trial or hearing, or allow

a copy of it to he taken by such party or parties, and he shall sign the copy, whether a notice of appeal has been given or not, and the copy so signed shall be used and received at the hearing of the appeal.

If a judge refuses to supply a copy of his notes, a mandamus will be granted to compel him to do so. Reg. v. Judge of the County Court at Sheffield, 7 Times L.R. 303.

Jurisdiction 147. On the hearing of an appeal, the Supreme ] CourtPreme Court shall have power to draw inferences of fact from [Compare facts found by the Judge or jury, or from admitted facts c.^43,^ 122.] or facts not disputed, and may order a new trial on such

’ terms as the Court thinks just, or may order judgment to be entered for any party, or may make any other order, on such terms as the Supreme Court thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties, and may make such order with respect to the costs of the appeal as it thinks proper, and such order shall be final.

Costs.—General rule is to give successful party on appeal the costs of the appeal.. Shroeder v. Ward, 32 L.J. C.P. 150; Liedman v Shultz, 14 C.B. 38; Gibbon v.

Gibbon, 22L.J. C.P. 135; Fenton v. Earls, 1 A.J.R. 132; 1 V.R. (L.)150; Marks v. Pett, 10 V.L.R. (L.) 342; Wright v. Cominr. for Railways, 12 S.C.R. (N.S.W.) 5. The rule is not inflexible, see Mountnoy v. Collier, 1 E. & B. 630; Richardson v. N.E, Ry. Co., L.R. 7 C.P. 75, 83; Outhwaite v. Hudson, 21 L.J. Ex. 151; Rule v. Lobbe, 4 V.L.R. (L.) 427 ; Great Gulf Co. v. Sutherland, 4 A.J.R. 164; Davis v. Montefiore, 12 S.C.R. (N.S.W.) 26 ; Gordon v. Gibbons, ib. 40. And each case is governed by the circumstances. Conybeare v. Parries, 39 L.J. Ex. 26 ; Fallows v. Slatter, 38 L.J. Ch. 609.

In Green v. Godfrey, 3 V.L.R. (L.) 50, where appeal was on ground of misdirection, the costs of the first trial were not given to the successful party; it was held that each party should pay his own costs occasioned by the mistake of the judge below.

Where appellant does not appear, appeal will be dismissed and respondent given his....................... costs.. Ryan v.. Gray,. 5 A.J.R, 16. Ex parte Lows, L.R., 7 Ch. D. 160 ; Lilley v. Rigby,

Brisbane Courier, Sept. 7, 1892.Application for costs is to be made at time appeal is disposed of. Taylor v.

Grt. N.R. Co., L.R. 1 C.P. 430.If money has been paid into court as security for the costs of the appeal, the court

in granting costs to the appellant will order the money paid into court to be paid out to him. Kelly v. Webster, 16 Jur. 838.

Parties may 148. An appeal shall not lie from the decision of a to appeal Judge if, before the decision is pronounced, both parties [Compare agree, in writing signed by themselves or their solicitors cX436g2m] or agents, that the decision of the Judge shall be final.

For form of agreement, see f. 76.The agreement cannot be withdrawn unless induced by surprise or misapprehen

sion. Re West Devon Great Consols Mine, 3G W.R. 342; Mathews v. Munster, ib. 178.Next friend of an infant plaintiff who has faiJed in an action cannot bind him by an

agreement not to appeal in consideration of forbearance of costs against next friend.• Rhodes v. Swithenbank, (C.A.) 22 Q.B.D. 577.

Removal of 149. A judgment given by a Judge, or an action or action only in matter brought before him or depending in his Court, shall provided by not be removed by appeal, motion, writ of error, or certiorari. rc^mA or otherwise into another Court, save and except in the 51 & 62 Vic. manner and according to the provisions of this Act.c. 43, s. 124.] , -j.

55 VIC. No. 33. 63

Certiorari.

150. If the Supreme Court or a Judge thereof ^ahe£eaotio“ thinks it desirable that any action, matter, or proceeding removed, pending in a District Court in its civil or criminal juris- [Compare^ diction should he tried in the Supreme Court, the Court c. 43, s. 126.'] or Judge may direct a writ of certiorari to he issued for removing such action, matter, or proceeding into the Supreme Court, upon such terms as to payment of costs,giving security for costs, or otherwise as such Court of Judge thinks fit.

An action or matter shall not be so removed when the amount claimed does not exceed thirty pounds, unless the defendant gives security to the satisfaction of such Court or Judge for the amount claimed, and also for a sum not exceeding one hundred pounds for the costs in the Supreme Court.

For forms of order for costs of day, where rule, etc., not duly served, see ff. 77, 78.For form of certiorari to District Court, see 40 Vic. No. 6, App. G 8 (P. & W.

2013).The Crown may of right obtain the removal of any plaint affecting the revenue,

Mountjoy v. Wood, 1 H. & N. 58 ; but in other cases the writ is not granted of course, but ex debito justitice, R. v. Surrey Justices, L.R. 5 Q.B. 466.

Grounds.—Where judge has jurisdiction to make an order, although he may decide wrongly, certiorari will not lie. R. v. Bindon, Ex parte Cairns, 5 V.L.R. (L.) 93. As to certiorari, where legal difficulties, see Rees v. Williams, 7 Ex. 51; Goldring v. Caudwell,2 L.M. & P. 175; Longbottom v. Longbottoin, 8 Ex. 203 ; Buzolich v. Fletcher, 3 A.L.T.15; where great local excitement respecting the subject matter of the suit, Parker v,Bristol, etc., Ry., 8 Ex. 184. *

It is not readily granted where amount in issue is small merely because of legal difficulties. Solomon v. London, etc., Ry. Co., 10 W.R. 59.

Fact of plaintiff being an officer of the court would be a ground. Box v. Green, 9 Ex. 503, but in this case the venue would probably be changed under s. 101.

It is not granted after judgment when the District Court has jurisdiction. Walker v. Gann, 7 D. & R. 769; Kemp v. Balne, 11). & L. 885.

Practice.—As to application for the writ, see Bowen v. Evans, 3 Ex. Ill; Robertson v. Womack, 19 L.J. Q.B. 367. Ex parte Nohro, 1 B. & C. 267.

As to terms, see Parker v. B.E. & Ry. Co., 2 L.M. & P. 136. Ex parte G.W.Ry. Co., 2 H. & N. 557.

As to service of writ by leaving it at registrar’s office, see Brookman v. Wenhani,20 L.J. Q.B. 278.

As to proceedings after grant of certiorari, see Ashley v. Ashley, 17 L.T. 265, and Bullen v. Leake, 3rd edit. 33.

As to quashing writs of certiorari, see Landers v. Shiel, 3 Dowl 90; Garton v. G.W.Ry. Co., 28 L.J. Q.B. 103; Parker v. B.E. Ry. Co., supra.

District Court judge is liable to attachment if he does not receive and return the writ. Mungean v. Wheatley, 6 Ex. 88.

The plaintiff is not bound to follow a cause which has been removed by certiorari, and the defendant cannot sign judgment if he fails to do so. Garton v. G.W. Ry. Co.,28 L.J. Q.B. 103; Clerk v. Mayor of Berwick, 4 B. & C. 649. See Pitt-Lewis County Court Practice, 4th edit. p. 144, for further information on this subject.

Order in lieu of Mandamus.

151. A writ of mandamus shall not be issued to or order Judge or an officer of a District Court requiring him to do ^any act relating to the duties of his office, but a party mandamus to requiring the act to he done may apply to the Supreme or Court or a Judge thereof, upon an affidavit of the facts, [Compare for a rule or summons calling upon the Judge or officer of ^ 4* 5g2 ^'] the District Court, and also the party to be affected by the * ’act, to show cause why the act should not be done, and if


Judge not to be served with notice of application forprohibition. [Compare 51 & 52 Yic. c. 43, s. 128.]

after tlie service of the rule or summons good cause is not shown, the Supreme Court or a Judge thereof may, by rule or order, direct the act to be done, and the Judge or officer of the District Court shall, upon being served with the rule or order, obey it under pain of attachment, and in any event the Court or Judge may make such order with respect to costs as to the Court or Judge seems fit.

As to mandamus to registrar, see Holborrow v. Jones, L.R. 4 C.P. 14, per Smith, J.; R. v. Clerk of Surrey C.C., 21 L.J. Q.B. 310.

Order is not granted where effect would be to give an indirect appeal when the Act had failed to provide a direct one. Brown v. Taylor, 18 L.T. 657 ; Sharrock v. L. & N. W. Ry. Co., (C.A.) 1 C.P.D. 70 ; Clarke v. Roche (3), 36 L.T. 728; Rhodesv. Liverpool Investment Co., 4 C.P.D. 425.

The court will not compel a judge or officer to do that which might bring him in peril of an action, R. v. Dowling, 2 E. & B. 196, 204, per Ld. Campbell, C.J. ; or under circumstances in which prohibition would lie, Brown v. L. & N.W. Ry. Co., 32 L.J. Q.B. 318, 319, per Blackburn, J.

Order must be applied for within reasonable time. Coke v. Jones, 4 L.T. 306.There must be a specific legal right and the absence of an effectual remedy. R. v.

Garland, L.R. 5 Q.B. 269, 272.Court will not interfere with a judge’s discretion. Clifton v. Furley, 31 L.J.

Ex. 170.The court will grant an order in all cases where the judge or other officer of the

court has improperly declined jurisdiction. Blades v. Lawrence, L.R. 9 Q.B, 374; R. v. Harwood, 22 L.J. Q.B. 127; R. v. Richards, 20 L.J. Q.B. 351; Jardine v. Smith, 8 W.R. 464; Churchward v. Coleman, L.R. 2 Q.B. 18; Norburn v. Hilliam, L.R. 5 C.P. 129; R. v. Stapylton, 21 L.J. Q.B. 8 ; Davis v. Pearce, L.R. 5 C.P. 435; Richardson v. Wright, 44 L.T. Ex. 230. In re Brighton Sewers Act, 9 Q.B.D. 723. Ex parte Conway, 7 S.C.R. (N.S.W.) 209; ex parte Spence, 11 S.C.R. (N.S.W.) 48.

An order will not be granted unless the District Court has refused to exercise the discretion vested in it. Thus where the judge has entered upon the case and after hearing evidence has decided, even though wrongly, he has no jurisdiction, the Supreme Court will not interfere under this section ; Ex parte Milner, 15 Jur. 1037 ; Morgan v. Davis, L.R. 3 C.P.D. 260. If the case has been heard and dealt with by the judge, the Supreme Court has no power to order him to re-enter it on his list, Morgan v. Rees, 6 Q.B.D. 508, at pages 513, 515, for the proper remedy is by appeal.

As to attachment for disobedience of order, see Ex parte Furber, 3 H. & N. 521.Application.—The application must be within reasonable time. Coke v. Jones, 4

L.T. 306.Affidavit of the Facts.—As to effect of irregularity in affidavit, see Ex parte Furber,

supra.Costs.—As to costs, see Norburn v. Hilliam, supra.

Prohibition.

152. When an application is made to the Supreme Court or a Judge thereof for a writ of prohibition addressed to a District Court, the Judge of the District Court shall not be served with notice, and shall not, except by the order of a Judge of the Supreme Court, be required to appear or be heard on the application, and shall not be liable to any order for the payment of the costs thereof; but the application shall be proceeded with and heard in the same manner in all respects as a case of an appeal duly brought from a judgment of a Judge.

Notice of the application shall be given to or served upon the same parties as in the case of an order made or refused by a Judge in a matter within his jurisdiction.

For forms, see ff. 77, 78.If judge has jurisdiction to make an order, although he may decide wrongly, prohibi

tion will not lie. Man v. Weightman, 3 V.L.R. (L.) 110.For the law as to prohibition, see Mayor, etc., of London v. Cox, 36 L.J. Ex. 225*

L.R. 2 H.L. 239; Worthington v. Jeffries, L.R. 10 C.P. 370.

55 VIC. No. 33. 65

When a rule has been obtained under this section from a judge of the Supreme Court, only the further proceedings in the matter must be in the nature of an appeal duly brought from the judgment of the judge of a District Court. On an appeal from the decision of justices, it was objected that no notice of trial had been given ; the objection was upheld, and the appeal came on at the next practicable court. It was held by the Dull Court, in Raven v. Kesterton, 4th August, 1892, that the judge was functus officio, and had no jurisdiction to hear the appeal a second time, as no order for adjournment had been made or for the extension of jurisdiction by consent of the parties.

For further information on the law as to prohibition, see Pitt-Lewis County Court Practice, 4th edit. p. 130.

Practice in such Oases.

153. The granting by the Supreme Court, or hy a Rule or Judge thereof, of a rule or summons to show cause why a ®™“1c0anus3g° writ of certiorari or of prohibition should not he issued to why a writ of a District Court, shall, if the Supreme Court or a Judge prohibition1 thereof so directs, operate as a stay of proceedings in the should not he action to which the same relates until the determination t0 be a of the rule or summons, or until such Court or Judge proceedings, otherwise orders; and the Judge of the District Court 51X52 vie. shall, from time to time, adjourn the hearing of the action c. 43, s. 129.] to such day as he thinks fit, until the determination or until such order is made.

If a copy of the rule or summons is not served hy Notice of rule the party who obtained it on the opposite party, and on b™Xn\o the registrar of the District Court, at least two clear days registrar and before the day fixed for the hearing of the action, tb“^artles- Judge of the District Court may order the party w$ obtained the rule or summons to pay the costs of the or so much thereof as he thinks fit, unless the Supre Court or a Judge thereof has made a different or<H^ respecting such costs. "

As to adjournment in other eases, see Index, title Adjournment.For form of order for costs, see f. 77.For further as to stay of proceedings, see Index, title Stay.Appeal to be struck out where no jurisdiction, s. 124.

• An appellant must exhaust the proper legal remedies before seeking-other remedies. - JR-odda v. Allen, 2 Q.L. J. 108. A prohibition will not lie where a special case could have been stated, and that has not been done. Eastern Miners’ Gold Mining Co. v. Sellheim,4 Q.L.J. 153.

154. When a writ of certiorari or of prohibition Notice of writ addressed to a District Court is granted by the Supreme pXhibition Court or a Judge thereof on an ex parte application, and obtained ex the party who obtained it does not lodge it with the regis- be trar, and give notice to the opposite party that it has registrar and been issued, at least two clear days before the day fixed ^mpare for hearing the action to which, it relates, the Judge of the 51 & 52 Vic. District Court may order the party who obtained the writ,c-43, s- 13<xi to pay all the costs of the day, or so much thereof as he thinks fit, unless the Supreme Court or a Judge thereof has made a different order respecting such costs.

p

66 DISTEICT COURTS ACT, 1891.

Costs.

Evidence on appeals from Small Debts Court.

155. When an order is granted for the removal of an action or matter from a District Court, or for the issuing of a writ of certiorari for such removal, and provision is not made with respect to the costs of the proceedings in the District Court, the costs of the proceedings shall he costs in the action or matter.

Appeals to a District Court.156. In any case in a Small Debts Court in which

the sum sued for amounts to ten pounds or upwards, the clerk of such Court shall take notes of the evidence, and shall append the same to the proceedings, and in case of appeal, the notes and proceedings shall be transmitted by him to the registrar of the Court to which the appeal is directed, two clear days before the sitting of the Court, and shall be the only evidence received upon the appeal unless both parties consent to the reception of fresh evidence, or the Judge directs such reception; and after the determination of the appeal, the registrar of the District Court shall append to the notes and proceedings the judgment given on the appeal, and shall return the same to the clerk, and effect shall be given to the judgment according to its tenor.

Statutory Jurisdiction.—As to appeal to District Court—from Small Debts Court, see “ Small Debts Act of 1807,” 31 Vie. No. 29, s. 34

(P. & W. 1105) ;from justices generally, see “ The Justices Act of 1886,” 50 Vic. No. 17, ss. 237,

ct scq. (P. & W. 1009, 1070) ; 'by accountable party from decision of Commissioner of Stamps, see 30 Vic.

No. 14, s. 47 (P.'& W. 2392);from Mineral Lands Commissioner, see 46 Vic. No. 8, ss. 29 to 35 (P. & W.

1602-3);from warden or commissioner on winding-up a mining company, sec 50 Vic.

No. 19, s. 14 (P. & W. 1564);from gold warden, see 38 Vic. No. 11, ss. 71 to 81 (P. & W. 1579-81); and

Bearup r. Barker, 3 Q.L. J. 45: [As to special case under “ The Mineral Lands Act of 1882,” see 46 Vic. No. 8, s. 37 (P. & W. 1603)];

in compensation cases under “ The Divisional Boards Act of 1887,” see 51 Vic.No. 7, ss. 153, 159 (P. & W. 1424, 1426);

under “ The Customs Act, 1873,” see 37 Vic. No. 1, s. 250 (P. & W. 469); under “ The Liquor Act of 1886,” see 50 Vic. No. 30, s. 26 (P. & W. 1300); under “ The Licensing Act of 1885,” see 49 Vic. No. 18, s. 49 (P. & W. 1267); under “ The Elections Act of 1885,” see 49 Vic. No. 13, s. 126 (P. & W. 671); under “ The Charitable Institutions Management Act of 1885, see 49 Vic. No. 8,

s. 19 (P. & W. 991);under “ The Crown I/cmds Act of 1884,” see 48 Vic. No. 28, s. 128 (P. & W.

1168); 'under “ The Health Act of 1884,” see 48 Vic. No. 17, s. 142 (P. & W. 858); under “ The Insanity Act of 1884,” see 48 Vic. No. 8, s. 172 (P. & W. 930); under “ The Native Birds Protection Act of 1887,” see 41 Vic. No. 7, s. 8

(P. & W. 58);under “ The Carriers Act of 1866 Amendment Act,” see 38 Vic. No. 2, s. 4

(P. & W. 103);under “ Careless Use of Fire Prevention Act,” see 29 Vic. No. 9, s. 5 (P. & W.

756); 'under “ The Trade Unions Act, 1886,” see 50 Vic. No. 29, s. 28 (P. & W. 2484); under “ The Quarantine Act of 1886,” see 50. Vic. No. 25, s. 33 (P. & W. 2063); under “ The Tramways Act of 1882,” see 46 Vic. No. 10, s. 76 (P. & W. 2121); under “ The Sale of Food and Drugs Act of 1881,” see 45 Vic. No. 13, s. 29

(P. & W. 783);

55 VIC. No. 33. 67

under “ The Pearl-Shell and Beche-de-mer Fishery Act of 1881,” see 45 Vic.No. 2, s. 15 (P. & W. 767);

under “ The Religious Worship Act of 1877,” see 41 Vic. No. 4, s. 2 (P. & W.2249);

under “ The Navigation Act of 1876,” see 41 Vic. No. 3, ss. 188, 189 (P. & W.1657);

under “ Friendly Societies Act, 1876,” see 40 Vic. No. 13, s. 29 (P. & W. 2371).As to appeal to quarter sessions—

under “Butchers Act,” see 5 Wm. IV. No. 1, s. 19 (P. & W. 80);under “ Larceny Act of 1865,” see 29 Vic. No. 6, s. 115 (P. & W. 331) ;under “ Injuries to Property Act of 1865,” see 29 Vic. No. 5, s. 71 (P. & W.

388); •under “Auctioneers Act” see 28 Vic. No. 7, s. 20 (P. & W. 17); .under “ Impounding Act o/1863,” see 27 Vic. No. 22, ss. 39, 40, 52 (P. & W. 890,

892);under “ Imported Game Act o/1863,” see 27 Vic. No. 6, s. 7 (P. & W. 794); under “Native Dogs Destruction Act,” see 16 Vic. No. 44, s. 8 (P. & W. 629); under Cruelty to Animals Act, see 14 Vic. No. 40, s. 17 (P. & W. 263); under Hawkers and Pedlars Act, see 13 Vic. No. 36, s. 28 (P. & W. 818); under “ Mail Ships Act, 1891,” see 54 and 55 Vic. c. 31, s. 7 (P. & W. 4510); under “ Railway Act of 1864,” see 27 Vic. No. 8, ss. 140, 141 (P. & W. 2095); under Vagrant Act, see 15 Vic. No. 4, ss. 10, 14 (P. & W. 2515, 2516); under Masters and Servants Act, see 25 Vic. No. 11, s. 21 (P. & W. 1521); under Apprentices Act, see 8 Vic. No. 2, s. 8 (P. & W. 1515); under “ The Water Authorities Act of 1891,” see 55 Vic. No. 11, s. 63 (P. & W.

4438);under Water Police Act, see 4 Vic. No. 17, ss. 37, 38 (P. & W. 2281); under Towns Police Acts, see 2 Vic. No. 2, s. 61 (P. & W. 1775), and 27 Vic.

No. 11, s. 28 (P. & W. 1792);under “ The Adulteration of Liquor Act,” see 14 Vic. No. 4, s. 10 (P. & W. 1186).

As to right of appeal under “ Medical Act of 1867,” and no court mentioned, see 31 Vic. No. 33, s. 16 (P. & W. 1530).

As to appeal to general or quarter sessions under Printing Acts, see 8 Geo. IV. c. 5, s. 10 (P. & W. 2041), and 5 Vic. No. 19, s. 4 (P. & W. 2045).

157. In any case of appeal from a Small Debts Court judge mayto a District Court the Judge may award costs and allow and'expenaes expenses of witnesses. of witnesses.

158. In any case of appeal to a District Court from Power ofa conviction or order of justices the Judge shall have the 0“®“^”* same power to amend mistakes or errors in the conviction ’or order appealed from that the Supreme Court has in cases of applications to quash, and after the amendment the conviction or order may be enforced or dealt with in all respects as if the same had so stood originally.

159. When in any Act provision is made for an appeal Appeal, to a court of general or quarter sessions, or to a Judge ofthe Supreme Court on circuit, or an appeal is given from a decision of a justice and no other Court of appeal is given from such decision, the appeal shall lie to the District Court of the district in which the decision appealed from was given, and shall be heard and determined by the Judge of that Court.

In any such case, the Judge may state in the form of a special case for the opinion of the Supreme Court any question of law arising upon the facts of the case, and his judgment shall be affirmed, amended, or reversed, as the Supreme Court, upon the hearing of the special case, directs.


Part YIII.—Enforcement of Judgments.

Action on judgment.Action on 160. An action may be brought in the Supreme CourtSi&sf'vic. upon a judgment in a District Court, but the plaintiff shall c. 43, s. 63.] not recover any costs in such an action up to judgment

unless the defendant appears and unsuccessfully defends the action.

As to judgment in various cases, see Index, title Judgment.The judgment itself does not carry interest. R. v. Essex C.C., L.R. 18 Q.B.D. 704.

Warrants of Execution.As to execution in various cases, and forms applicable thereto, see Index, title

Execution.

Registrar to 161. In any case in which a judgment is given by aof executiontS Judge for the payment of money, the registrar of the Court, rCompare on the application of the party in whose favour the judg- “‘“5ft ment was given, may issue a warrant of execution, which

’ shall he directed to the bailiff of the Court.No summons or notice need be sent to the judgment debtor previous to the issue of

the warrant, nor need the judgment be served upon him, though probably an order for payment of money ought to be drawn up and served before execution is issued upon it. Ely v. Moule, 20 L.J. Ex. 29.

If an order for payment by instalments is made, it does not require service. Robinson v. Cell, 12 C.B. 191.

As to insurance policies being protected from execution, see “ The Life Insurance Act of 1879,” 43 Vic. No. 8, s. 2 (P. & W. 992).

If a registrar refuse to issue a warrant to which a party is entitled, he may apply to the Supreme Court for a mandamus. R. v. Clerk of Surrey C.C., 21 L.J. Q.B. 310 ; S.C. nom. R. v. Fletcher, 2 E. & B. 279.

’ A plaintiff who has recovered a judgment for debt and costs, and has received the debt out of court, is entitled to issue execution for costs. R. v. Clerk of Surrey C.C., supra.

Execution against Land.Bailiff may 162. A bailiff may, under a warrant of execution bya e an • which he is directed to levy a sum of money, seize and

take, and cause to he sold, any land which the person named in the warrant is or may be possessed of or entitled to, or which he has power to assign or dispose of.

As to priority in case of two writs, see Peace v. Sheriff of Queensland, 4 Q.L. J. 33, and rc the Real Property Acts, 4 Q.L. J/70.

Notice of 163. Instead of making an actual seizure of landBale' under a warrant of execution in order to authorise a sale

thereof, the bailiff may cause notice of the warrant and of the intended day and place of sale, and the particulars of the property to be published in such manner as may be prescribed, or as the Judge may direct. _

The publication of the notice shall be equivalent to an actual levy by the bailiff on the land indicated in the notice.

55 VIC. No. 33. 69

164. When the right, title, and interest of a person Registrar to of, to, or in, any land is sold under a warrant of execution, ofebargafne<1 the registrar shall execute a proper deed of bargain and and sale or sale or transfer to the purchaser, which deed of bargain rans er‘ and sale or transfer shall operate and he effectual as a conveyance of the estate, right, title, and interest, of such person.

165. In the case of land which is not subject to the Executions “Beal Property Act of 1861”* a warrant of execution shall not hind the land until it is registered in the office of the registered. Registrar of Titles, who shall duly register the same in a book to be kept for that purpose.

A

As to registrar executing transfer of land under “ The Real Property Act of 1877,” see 41 Vic. No. 18, s. 35, Sch. U. (P. & W. 2201, 2205). .

Until registration, an entry by the purchaser to eject former owner is a trespass.Matthews v. Howell, 10 S.C.R. (N.S.W.) 335.

How and Where a Warrant may he Executed.—The bailiff may not break open any outer door or window of the defendant’s dwelling house to execute the writ, Semayne’s case, 5 Rep. 91, 1 Smith L.C. 115, 9th edition and notes ; but he may enter through the. . door or any other opening which is open, although no goods of the defendant are within, : if there is reasonable ground for suspecting that they are there, Semayne’s case, yupra;- Cooke v. Birt, 5 Taunt 765. He may enter the house of a third person if tlieRefendant’s goods are within, but not otherwise; Morrish v. Murrey, 13 M. & W. 52.//Having once obtained peaceable possession he may break open inner doors, etc. If locked* 5in he may break out; if forcibly ejected he may break in to re-enter, Eagleton y. iGuoteridge, 11 M. & W. 465. Outer doors of barns, etc., not connected with a dwelling ^iise may be broken open, Penton v. Brown, 1 Sid. 181, 186. (\W\J\

What may he Seized.—If he seizes part in the name of the whole it is su^Mbht. Cole v. Davies, 1 Ld. Raymd. 724. ■; -

Execution against Goods. ''166. A bailiff, under a warrant of execution by which Bailiff

he is directed to levy a sum of money, may seize and take, j^ompareS’ and cause to be sold any goods which the person named in 51 & 52 Vic. the warrant is or may be possessed of or entitled to, orc-43,8-147^ which he has power to assign or dispose of:

Provided that the wearing apparel, bedding, tools and Exception, implements of trade of such person and his family, to the value of ten pounds in the whole, shall be protected from seizure.

vi/

may

Money.—“Money ” means cash on the premises, and does not include the proceeds of a previous execution against the debtor remaining in the hands of the bailiff, Harrison r. Painter, 6 Q.B. 387 ; or in the hands of a sheriff’s officer, Merton v. Greene, K. & B. 393.

Qucere, Does it include the proceeds of an execution issued by the debtor? Wood v. Wood, 12 L.J. Q.B. 141; or money about the person of the defendant? Sunbolf r. Alford, 3 M. & W. 254, per Parke, B.

Fixtures.—As to fixtures, see Elwes v. Mawe, 3 East. 38; 2 Smith L.C. 182, 9th edition ; Winn v. Ingleby, 5 B. & A. 625; Farrant v. Thompson, 5 B. & A. 826; Poole’s case, 1 Salk. 368.

' Crops.—See Evans v. Roberts, 5 B. & C. 829.Shares may be sold under a fi. fa. without a charging order. Daly and Hellicar v.

Cooper, 3 Q.L. J. 104.

167. The bailiff shall hold any cheques, bills of Securities exchange, promissory notes, specialties or other securities ^dbybamff. for money, which are seized or taken under a warrant of [Compare^ execution, as a security for the amount directed to be ua] levied under the warrant, or so much thereof as has not

25 Vic. No. 11 (P. & W. 2118).


been otherwise levied or raised for the benefit of the execution creditor, and may receive any moneys payable by virtue of any such instrument from the person liable under it.

The execution creditor may sue in the name of the execution debtor, or in the name of any person in whose name the execution debtor might sue, for the recovery of the sums secured or made payable by any such instrument, when the time of payment thereof arrives.

Any money paid to the bailiff or recovered in an action brought by the execution creditor in respect of any such instrument shall be paid into Court by the officer or person who receives the same. The payment of any such moneys to the bailiff or in the course of or under a judgment in any such action shall effectually discharge the person by whom they are paid to the extent of the payment.

Parties to bill of exchange or promissory note may be joined as defendants, r. 84.As to final judgment on bill of exchange or promissory note, see s. G4.As to splitting demand by giving bill of exchange or promissory note, see s. 100.Promissory note and bill of exchange are included in term “goods,” s. 3.As to payment into and out of court, see Index, title Payment.

When goods 168. A sale of goods which are taken in execution taken in shall not be made until after the expiration of the five daysbe sold. at least next following the day on which the goods were51T52 Vic taken, unless the goods are of a perishable nature, except c. 43, s. 154.] upon the request in writing of the person whose goods are

taken. .Until the sale the goods must be deposited by the

bailiff in some fit place, or they may remain in the custody of a fit person approved by the bailiff to be put in possession by the bailiff. .

When goods 169. The landlord of any premises in which goods landlord may are taken may, at any time within five clear days from claim certain the date of the taking, or at any time before the removal [Compareear' of the goods, claim any rent in arrear by delivering to 51 & 52 vie. the officer making the levy a writing signed by himself °‘ ’s' or his agent, stating the amount of rent in arrear claimed

and the period in respect of which the rent is due.If such a claim is made, the officer making the levy

shall, in addition to levying for the amount for which the warrant was issued, keep possession of the goods hy way of distress for the rent so claimed and the cost of the possession, and shall not within five clear days next after the notice sell any part of the goods taken, unless they are of a perishable nature, except upon the request in writing of the person whose goods are taken.

55 YIC. No. 33. 71

The bailiff shall afterwards sell so much of the goods taken under the execution as is sufficient to satisfy—

(1) The costs of and incident to the levy and sale ;(2) The claim of the landlord not exceeding the

rent for four weeks when the premises are let by the week, the rent for two months when the premises are let by the month, or the rent for three months in any other case; and

(3) The amount for which the warrant was issued.If a replevin is made of any goods so taken, the

bailiff shall, notwithstanding the replevin, sell such portion of the goods as will satisfy the costs of and incident to the levy and sale under the execution, and the amount for which the warrant was issued, and the surplus, if any, arising from the sale, and the residue of the goods shall he returned to the defendant.

The poundage of the bailiff and broker for appraisement and sale under the possession by way of distress, shall be the same as would have been payable if n® claim had been made for rent; and no other fees shall be demanded or taken in respect thereof.

As to replevin, see also ss. 113, 144, and rr. 32, 33.If bailiff seizes goods belonging to a stranger, he cannot distrain them for the rent

of the landlord. Beard v. Knight, 27 L.J. Q.B. 350 ; Foulgar v. Taylor, 20 L.J. Ex. 154.

51 & 52 Vic. c. 43,8. 161.]

Execution against the Person.170. When a sum of money is recovered by the Execution

judgment of a District Court, and the judgment creditor asainst the shows to the satisfaction of a Judge of the Supreme [Compare Court, or of a District Court—

(1) That the debt was fraudulently contracted; or(2) That the judgment debtor conceals goods; or(3) That he has any income, salary, or means, by

which, in the opinion of the Judge, he can satisfy the judgment or a part of it; or

(4) That he is about to leave the Colony, or to gointo remote parts of the Colony, or to remove any of his property with intent to evade payment of the judgment debt; .

the Judge may authorise the registrar of the District Court to issue a warrant in the prescribed form for his commitment to prison.

The bailiff and the keeper of the prison to whom the warrant, or any warrant issued in pursuance of it, is directed, shall respectively execute and obey the same, and the police officers within their several jurisdictions shall aid and assist in its execution.


A warrant of commitment may be executed on a Sunday as on any other day.

As to attachment of goods, where defendant about to leave the colony, etc., see s. 136.* As to service of summons where defendant about to remove from ordinary juris

diction of court, see r. 42.As to service of process on Sunday, see rr. 62, 195.Does judgment include order for payment of costs merely ? see s. 3, and Hewitson

v. Sherwin, L.R, 10 Eq. 53.If a judge were to commit a person when he had no jurisdiction to do so, a writ of

prohibition might be obtained. R. v. Casey, 12 V.L.R. 525.It is not sufficient to show that the debtor’s wife is a woman of means, Chard v.

Jervis, 9 Q.B.D. 178; but see Harper v. Scrimgeour, 5 C.P.D. 367. It is not material whence the means arise, whether from a gift or otherwise; Ex parte Roster, 14 Q.B.D. 597.

Quaere, Can an order of commitment be made against a married woman ? Dillon v. Cunningham, L.R. 8 Ex. 23 ; Meagher v. Pellew, (C.A.) 14 Q.B.D. 973; Scott v. Morley, 20 Q.B.D. 120. Ca. Sa. may issue against married woman who has property in the hands of trustees; Ex parte Harvey and wife, 6 S.C.R. (N.S.W.) 144.

The section extends to every judgment debt, whether on contract or tort; Ex parte Jewell, 6 S.C.R. (N.S.W.) 373. On the making of the order the registrar makes a minute of it, and the court will not grant a prohibition merely on the ground that the minute does not show the ground on which the order is made. Harris v. Slater, 21 Q.B.D. 359.

If Ca. Sa. issued after debtor has become insolvent a prohibition lies; Ex parte Gee,6 S.C.R. (N.S.W.) 355 ; Webbv. Wilton, ib. 374.

As to evidence of debtor’s means, see Edward v. Wyvill, 2 Times L.R. 210.

Discharge on 171. A person arrested or imprisoned under warrant debtanci costs. °f commitment shall be entitled to his discharge on pay

ment ef the amount named in the warrant as due on the judgment, and the costs of obtaining and executing the warrant, or, except in the case of a debt fraudulently contracted, upon his being adjudged insolvent or otherwise upon the order of the Judge.

The bailiff making the arrest, and the keeper of the prison to whom the warrant is directed, are hereby empowered and required to receive the amount so paid, and to transmit it to the registrar of the Court in which the judgment was recovered.

As to insolvency, see also ss. 71, 94, and rr. 66, 67.As to discharge on insolvency, see also “ The Insolvency Act of 1874,” 38 Vic. No. 5,

s. 76, and notes thereto (Harding and Macpherson, 40).As to discharge on account of illness, etc., see s. 177.

Detention of 172. When a warrant of commitment is issued, and arrested. the judgment debtor is arrested, he shall, unless entitled [Compare to his discharge under the provisions of this or some other “£“!&] Act, be forthwith conveyed in the custody of the bailiff

or other officer apprehending him to the prison nearest to the place where he was arrested, and shall be detained in custody until he is discharged therefrom by due process of law.

Execution beyond the District.How 173. When a warrant of execution, or a warrant ofbeSouto/c°mmitment, has been issued under this Act, and the the district of person against whom it is issued, or any of his property, which7hfr°m is out °f the district of the Court from which the warrant warrant was was issued, the registrar of the Court may send the [S5i & 52 Vie. warrant to the registrar of another District Court within c. 43,8.158.] the district of which the person, or any of his property,

55 VIC. No. 33. 73

then is or is believed to be, with a warrant annexed to it, under the hand of the registrar and under the seal of the Court from which the original warrant was issued, requiring execution thereof. '

The registrar of the Court to which the warrant is sent shall seal or stamp it with the seal of the Court, and shall issue it to the bailiff of his Court.

The last-mentioned bailiff shall thereupon he authorised and required to act in all respects as if the original warrant of execution or commitment had been directed to him by the Court of which he is the bailiff, and he shall within the prescribed time make a return to the bailiff of the Court from which the warrant was originally issued with respect to what he has done in the execution of the process ; and, if a levy is made, he shall, within the prescribed time, pay over the moneys received in pursuance of the warrant to the registrar of the Court from which it was originally issued, retaining the fees for execution of the process.

General provisions relating to Execution.174. The precise time when an application is made Time of

to a registrar to issue a warrant of execution shall bef^warrants entered by him in the execution book, and on the war- tobc entered, rant, and when more warrants than one are delivered to 5152 vie. a bailiff to be executed against the same person he shall 0^43, ss. 146, execute them in the order of the times so entered. J

175. When a writ of execution against the lands or Priority of goods of a party to an action or other proceeding has?*^g100“t0f been issued out of the Supreme Court, and a warrant of Supreme execution on the application of the same party has been p°^.ictnd issued out of a District Court, the right to the property Court, seized shall be determined by the priority of the time of juXTIvic. the delivery of the writ so issued out of the Supreme 0.43, s. 152.] Court to the sheriff to be executed, or the time of the application to the registrar for the issue from the DistrictCourt of the warrant of execution, whichever is the earlier.

The sheriff shall, on demand, inform the registrar of the precise time of the delivery of the writ so issued out of the Supreme Court, and the registrar shall, on demand, inform the sheriff, or a sheriff’s officer, of the precise time of the application to the registrar for the issue from the District Court of the warrant of execution.

176. If the Judge makes an order for payment of a Executionsum of money by instalments, execution upon the order fn^uiment shall not be issued against the party until after default in may be issued some instalment. for wiwie

74 DISTEICT COURTS ACT, 1891.

51T52 Yio Upon such default being made, execution or successive0.43, s. 149.] executions may be issued for the whole of the sum of

money and costs then remaining unpaid, or for such portions thereof as the Judge may have ordered, either at the time of making the original order, or at a subsequent time.

As to payment by instalments, see also s. 133, and rr. 155, 170.

177. If at any time it appears to a Judge that the______ defendant in an action or matter is unable from sicknessorder or other sufficient cause to pay and discharge the debt or eertain'cL'es. damages recovered against him, or any instalment thereof, [Compare the Judge may suspend or stay any judgment given or c. 43, s. 153.] execution issued in the action or matter for such time and

upon such terms as he thinks fit, and so from time to time until it appears that the cause of inability has ceased.

A Judge may also discharge a debtor confined in prison by order of a Judge, whether of the Supreme Court or a District Court, who by reason of sickness, insanity, or other sufficient cause ought, in the opinion of the Judge, to be discharged.

As to discharge on payment of debt and costs, see s. 171.For further as to stay of proceedings, see Index, title Stay.As to appeal from order of discharge, see Rowbottom v. Hennelly, G V.L.R. (L.)409.

Execution to 178. In or upon every warrant of execution the on payment of re°^s^rar Court shall cause to be inserted or indorseddebt and costs. the sum of money and costs adjudged and the amount of 5i°&152 Vic ^ie fees f°r the execution of the warrant, c. 43, s. 155.] If the party against whom the warrant is issued,

before actual sale, pays or tenders to the registrar of the Court from which it was issued, or to the bailiff holding the warrant, the sum of money and costs, or such part thereof as the person entitled thereto agrees to accept as full payment of the debt or damages and costs, the execution shall be superseded, and the property of the party against whom the execution was issued shall he discharged. •

# Semble the money may be paid between the parties directly without the intervention of the. court, R. v. Fletcher, 21 L.J. Q.B. 310 ; but such a payment if made after execution issued would not invalidate the warrant, Davis v. Fletcher, 22 L.J. Q.B. 429, and in that event prompt steps should be taken to countermand further proceedings upon the warrant.

Cross- 179. If there are cross-judgments between the samele'seToff.81° parties in a District Court, execution shall be issued at the [Compare instance of that party only who has obtained judgment c.143,5s2 i5a] t°r ite larger sum, and for so much only as remains after

’ deducting the smaller sum, and satisfaction shall be entered on the judgment for the smaller sum, and if both sums are equal, satisfaction shall be entered on both judgments.

Cross actions may be pleaded by way of set-off, s. G8.As to practice on set-off, see Index, title Set-off.

Judge may suspend

55 YIC. No. 33. 75

Interpleader.

180. If a claim is made to or in respect of goods ^^toe1^p®^er' taken in execution under the process of a District Court, 51 & 52 vie. or in respect of the proceeds or value of the goods, by a °- 43>s-157-1 person not being the party against whom the process has been issued, the registrar of the Court under the process of which the levy is made, or the registrar of the Court of the district in which the levy is made, upon application of the officer charged with the execution of the process, whether an action has been brought against the officer or not, may enter an interpleader plaint, and may issue a summons thereon calling before the Court both the party issuing the process and the party making the claim, and thereupon any action which has been brought in the Supreme Court or in a District Court in respect of the claim shall be stayed.

Upon the return of the summons the Judge shall have and may exercise such and the same powers as a Judge of the Supreme Court has and may exercise upon the application of the sheriff, under the provisions of the “ Interdict Act of 1867,” in the case of goods taken in execution under process issued from the Supreme Court.

The Court in which the action has been brought, or Costs, any Judge of such Court, on proof of the issue of the summons and that the goods were so taken in execution, may order the party bringing the action to pay the costs of all proceedings had upon the action after the issue of the summons out of the District Court.

As to practice on interpleader, see also ss. 113, 144, rr. 177 to 181, and ff. 88 to 93.As to action against officer, see s§. 45, 4(5.As to whether the judge, under this section, can determine any other question .than

the right to the goods, see Mercer v. Stanberg, 25 L.J. Ex. 34G ; Tinkler v. Hilder, 18 L.T.Ex. 429; Chater v. Chignell, 19 L.J. Q.B. 520; Jones v. Williams, 28 L.J. Ex. 324 ;Foster v. Pritchard, 2 H. & N. 151; Jessop v. Crawley, 19 L.J. Q.B. 320.

As to what particulars are sufficient, see R. v. Richards, 20 L.J. Q.B. 351; R. v.Chilton, 15 Q.B. 220; S.C. nom., ex parte Tanner, 19 L.J. Q.B. 318 ; Churchward v. Coleman, L.R. 2 Q.B. 18.

It is not necessary that the claim should specify the goods or set them forth in the schedule. Heaslop v. McG-eorge, 18 L.T. 109.

When a claimant delivered particulars describing the property as “the goods and money seized by virtue of the warrant,” held that the particulars were sufficient.Richardson v. Wright L.R. 10 Ex. 367.

When the judge refused to adjudicate on a claim, on the ground that the particulars did not distinguish that portion of the goods seized to which the claimant was entitled, held that he should have determined what part the claimant was entitled to and given judgment accordingly. R. v. Stapleton, 21 L.J. Q.B. 8. .

When a summons is once issued the judge must adjudicate, and for that purpose should amend the summons or particulars (required by r. 177) if necessary. Beswich v.Boffey, 23 L.J. Ex. 89; Fraser v. Fothergill, 23 L.J. C.P. 53; Whitehead v. Procter,3 H. & N. 532 ; ex parte McFee, 23 L.J. Ex. 57. He may order further particulars. R. r.Stapelton, 21 L.J. Q.B. 8; ezparte Ison, 2 S.C.R. N.S. (N.S.W.) 204.

The ground of the claim need not appear valid on its face. R. v. Richards, supra ;A notice by the claimant that the goods 1 ‘ are and were my own property and not the property of R.” does not comply with the rule. In re Cullum, 19 L.J. Q.B. 318.

When the judge dismissed a claim and ordered the costs of interpleader to be paid by claimant, and the bailiff afterwards sold the goods and paid into court the amount of the levy, which was subsequently received by the judgment creditor, held that the bailiff had no right of action for his costs against the execution creditor. Bloor %\ Hunston,24 L.J. C.P. 26.


Examination of judgment debtor as to debts due to liim.

Power to make garnishee order.

. The decision of the judge with respect to the sufficiency of the statement of the claimant’s address is not conclusive, but subject to review. Ex parte McFee, supra.

' As between the execution creditor, the claimant, and the bailiff, the judge’s order will not only dispose of claims actually brought forward, but will also bar claims which might have been brought forward and adjudicated upon. Death v. Harrison, L.R. G Ex. 15; Hills v. Renny, 5 Ex. D. 313.

As to appeal from decision on interpleader summons, see Barnard v. Mann, 2 V.L.R. (L.) 140, and note to s. 144.

The officer is not required to retire from possession because an interpleader summons has been issued. Ex parte Summers, 18 Jur. 522

Attachment of Debts.181. When a judgment is for the recovery by or pay

ment to a person of a sum of money, the party entitled to enforce it may apply to the Judge for an order that the judgment debtor be orally examined before the Judge, or such other person as the Judge appoints, as to whether any and what debts are owing to him; and the Judge may make an order for the examination of the judgment debtor, and for the production of any hooks, deeds, papers, or writings.

Compare Order XLIV. of the rules under the Judicature Act (P. & W. 1954).As to time of service of summons, see rr. 182, 183. For form of order for examina

tion of judgment debtor, see f. 94.For forms of garnishee order, see ff. 95, 9G.For form of debt attachment book, see f. iv.Qucere, Does this section apply to corporations so as to give power to examine

directors or officers? Dickson v. Neath Ry. Co., L.R. 4 Ex. 87.

182. Upon the ex parte application of the judgment creditor, either before or after the oral examination, and upon affidavit by himself or his solicitor stating that judgment has been recovered, and that it is still unsatisfied and to what amount, and that another person is indebted to the judgment debtor and is within the Colony, the Judge may order that all debts owing or accruing from the third person (hereinafter called the garnishee) to the judgment debtor, shall he attached to answer the judgment, and by the same or a subsequent order may order that a summons be issued requiring the garnishee to appear before the Judge, to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much of it as is sufficient to satisfy the judgment.

Compare Order XLIV., r. 2, of the rules under the Judicature Act (P. & W.1954).

Affidavit.—It is sufficient if the deponent states his information and belief that a specific debt is due from the garnishee to the judgment debtor. Vinall v. de Pass (1892), A.C. 90.

A separate order must be made against each debtor, although they are jointly liable for one sum. Royal Bank v. Gurtberg, 3 Q.L. J. 151.

What Debts may be Attached.— Debts must be absolute and not merely conditional. Howell v. Metrop Ry. Co., L.R. 19 Ch. D. 508; of. Webb v. Stenton, L.R. 11 Q.B.D. 518; Richardson v. Elmit, 2 C.P.D. 9.

It must be a debt the payment of which can be effectually enforced. Chatterton v. Watney, 16 Ch. D. p. 383. Only such property can be attached as the debtor could deal with properly, and without violation of the rights of other persons. Badeley v. Consolidated Bank, 38 Ch. D. 238. Be General Horticulture Co., 32 Ch. D. 512; Davis v. Freethy, 24 Q.B.D. 519.

Debt liquidated but not ascertained. Daniel v. McCarthy, 7 I.R. C.L. 26L.Judgment entered up as tx security for a debt. Sparks v. Young, 8 I.R. C.L. 261.

55 VIC. No. 33. 77

Debt, amount of which is liable to variation from day to day, Russell v. Ferguson, 8 I.R. C.L. 78.

Rent due. Leake v. Noble, G I.R. C.L. 570; Mitchell v. Lee, L.R. 2 Q.B. 259. Surplus money realised by sale under,/?, fa. in hands of sheriff. O’Neill v. Cunning

ham, G I.R. C.L. 503; see contra, Oriental Bank v. Grant, 1 W. &. W. (L.) 1G.Amount of execution at suit of judgment debtor in hands of sheriff. Murray v.

Simpson, 8 I.R. C.L., Ap. 215.Money in a bank. Cohen v. Hale, 3 Q.B.D. 371.Interest due and guaranteed by garnishee. Bouch v. Sevenoaks R.T. Co., 4 Ex.

Debt payable by instalments. Tapp v. Jones, L.R. 10 Q.B. 591; cf. Sampsons. Seaton Ry. Co., L.R. 10 Q.B. 28; Rapier v. Young, 14 Ch. D. p. 643.

Debt due to one of several defendants. Miller v. Mynn, 28 L.J. Q.B. 324.Debt due to testator’s estate in action against executors. Burton v. Roberts,

29 L.J. Ex. 484.Quarterly salary of secretary to a company. Gordon v. Jennings, 9 Q.B.D. 45. Superannuation allowance. Booth v. Traill, 12 Q.B.D. 8.Pension. Willcock v. Terrell, (C.A.) 3 Ex. D. 323.Clerks’ wages if actually due. Marks v. Booth, 90 L.T. Journal 302.Surplus in mortgagee’s hands and accruing due. Buss and Co. v. Sheldon, 2 Q.L. J.

42, and cases cited there. .Judgment against married woman subject to no restraint on anticipation. Holtby

v. Hodgson, 24 Q.B.D. 103.. Moneys to become due to judgment debtor on bills of exchange accepted by

garnishee. Hyam v. Freeman, 35 Sol. Jo. 87.Widow’s annuity. Nash v. Pease, 47 L.J. Q.B. 7G6.Cheque. Cohen v. Hale, 3 Q.B.D. 371; but see Elwell v. Jackson, 1 Times L.R. 454. Money due for calls in respect of shares. De Pass v. Capital, etc., Corpn. (1891),

1Q.B. 216.e What Debts may not be Attached.—Claims for unliquidated damages (Johnson v.

Diamond, 24 L.J. Ex. 217 ; but see Randall v. Lithgow, 12 Q.B.D. 525), even though ascertained by verdict, unless judgment has been signed. Jones v. Thompson, 24 L.J. Q.B. 234.

Trust money owing to defendant as trustee. Roberts v. Death, 8 Q.B.D. 319; Vyse v. Brown, 13Q.B.D. 199.

Salary not yet due. Hall v. Pritchett, 3 Q.B.D. 215.Annuity when nothing is due. Webb v. Stenton, 11 Q.B.D. 518 ; but see Mark v.

Pearse, 4G L.J. Q.B. 7GG.Money paid into court. Dolphin v. Layton, 4 C.P.D. 130 ; Stevens v. Phelips,

L.R. 10 Ch. 417.Amount of promissory note not yet due. Payne v. Kenna, 11 I.R. C.L. 207. Money in hands of official trustee. Me Hunter, I.R. 8 C.P. 24; Prout v. Gregory,

24 Q.B.D. 281.Dividend in a winding-up matter. Dawson v. Malley, 1 I.R. C.L. 207; Boyse v.

Simson, 8 I.R. C.L. 523.Debt bond fide assigned. Goodman v. Robinson, 18 Q.B.D. 332; ex parte Woodall,

13 Q.B.D. 479; Harkness v. Mayor of Maryborough, 3 A.J.R. 2G; Cohu v. Strachan, 5 A.J.R. 38 ; but see Hirsch v. Coates, 18 C.B. 757 ; Wise v. Birkenshaw, 29 L.J. Ex. 240.

Debt due to a judgment debtor and another not a party to the action. Macdonald v. Tacquah Co., 13 Q.B.D. 535 ; and see Beasley v. Roney (1891), 1 Q.B. 509.

Wages of servants, labourers, or workmen. Jones v. Thompson, 27 L.J. Q.B. 234 ; Dresser v. Jones, 28 L.J. C.P. 281.

Pay of officer in army or navy. Apthorpe v. A. 12 P.D. 192.The allowance for expenses to Members of Parliament, Callaghan v. Hunter,

3 Q.L. J. 152 ; but queere whether this is so under “ The Payment of Members Act of 1889,” 53 Vic. No. 1 (P. & W. 3739).

Seaman’s wages. 17 and 18 Yic. c. 104, s. 233; Bell v. Graham, 2 Q.L. J. 157.The securities, real or personal, of a mortgagee, whether in or out of possession.

Duncan v. Wood, 1 Q.L.R. (Beor) 49, and cases cited.Money to accrue due on building contract before architect’s certificate given.

Queensland Carriage, etc., Co. v. Somerville, 4 Q.L. J. 10, and cases cited.k ^ Money found on convicts and taken possession of by police. Jervis v. Peel, 1 Times

Surplus of bankrupt’s estate. Hunter v. Greensill, L.R. 8 C.P. 24.Money deposited by judgment debtor in hands of stockbroker to secure any loss on

speculations on stocks, etc., so long as transactions are open. Hutt v. Shaw, 3 Times L.R. 354.

Money held in trust for married woman. Chapman v. Biggs, 11 Q.B.D. 27 ; Galmoye v. Cowan, 58 L.J. Ch. 769 ; Beasley v. Roney (1891), 1 Q.B. 509.

Money attached under a garnishee order cannot be attached by the judgment creditor of the person obtaining the order. Cooper v. Lawson, G Times L.R. 34.

78

Service of garnishee order.

Executionagainstgarnishee.

Trial of liability of garnishee.

Lien of third person on debt.

183. Service of an order that debts due or accruing to a judgment debtor shall be attached, or notice of it to the garnishee in such manner as the Judge directs, shall hind the debts in his hands.

Garnishee order does not affect any security given for the debt. Chatterton v. Watney, 17 Ch. I). 259.

Where plaintiff has served the order he is a creditor holding security within the meaning of the Insolvency Act. Ex <parte Joselyne, 8 Ch. D. 327.

Order creates no change until it is served. Re Stanhope, 11 Ch. D. 160.After order made garnishee cannot set-off debt due to him from plaintiff. Sampson

v. Seaton, etc., Ey. Co., L.E. 10 Q.B. 28. Nor deduct amount of debts accruing due to him from defendant subsequent to date of order. Tapp v. Jones, L.E. 10 Q.B. 591.

Notice to garnishee by telegram was allowed to bind the debts in his hands. Union Bank of Australia v. Thorpe, 4 Q.L. J. 100.

Compare Order XLIV., r. 3, under the Judicature Act (P. & W. 1955).Shall Bind the Defendants in his Hands.—For the meaning of these words, see In re

Combined Weighing, etc., Co., 43 Ch. D. 105.

184. If the garnishee does not dispute the debt due or claimed to be due from him to the judgment debtor, or does not appear in obedience to the summons, and if in either case he does not forthwith pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, the Judge may order a warrant of execution to he issued, and it may be issued accordingly without a previous writ or process, to levy the amount due from the garnishee, or so much of it as is sufficient to satisfy the judgment.

Compare Order XLIV., r. 4 (P. & W. 1955).As to power to order rehearing when the order has been made absolute, see Davis

v. Higgins, 4 Q.L.J. 53.

185. If the garnishee disputes his liability, the Judge, instead of making an order that a warrant of execution shall be issued, may order that any issue or question necessary for determining his liability be tried or determined, in any manner in which an issue or question in an action is tried or determined, and thereupon the same proceedings may be had in all respects as if an action were pending between the parties, and any order or judgment made in such proceedings may be enforced in the same manner as a judgment in an action in the Court.

Compare Order XLIV., r. 5 (P. & W. 1955).

186. When in proceedings to obtain an attachment of debts it is suggested by the garnishee, or it otherwise appears, that the debt sought to be attached belongs to a third person, or that a third person has a lien or charge upon it, the Judge may order a summons to be issued requiring the third person to appear and state the nature and particulars of his claim upon the debt.

Compare Order XLIV., r. G (P. & W. 1955).When it is suggested that the money sought to be attached is trust money, an issue

ought to be directed to try the question, and the money brought into court to abide the event. Eoberts v. Death, 8 Q.B.D. 319.

DISTRICT COURTS ACT, 1891.

55 VIC. No. 33. 79

187. After hearing the allegations of the third person, Trial of claim and of any other person whom by the same or a subsequent °fei^d order the Judge directs to he summoned, or if the third person does not appear in obedience to the summons, the Judge may order that a warrant of execution be issued to levy the amount due from the garnishee, or that an issue or question he tried or determined as hereinbefore provided, and the Judge may bar the claim of the third person, or may make such other order as he thinks fit, upon such terms with respect to the lien or charge (if any) of the third person, and to costs, as he thinks just.

Compare Order XLIV., r. 7 (P. & W. 1955).Where an issue is directed, the third party is usually made plaintiff and the

judgment creditor defendant.If the third party consents to his title being decided by the judge summarily in

chambers, the judge is considered as an arbitrator, and his decision is final. Eade v.Winser, 47 L. J. C.P. 584.

188. Payment made by or execution levied upon a garnishee under any such proceeding shall he a valid diL charge to him as against the judgment debtor to tVi amount paid or levied, although the proceeding may jbe set aside or the judgment reversed.

Compare Order XLIV., r. S (P. & W. 1955).The provisions of this rule are inapplicable to a conditional debt owing

judgment debtor. Howell v. Met. Ry. Co., 19 Ch. D. 508.As to effect of payment by garnishee of a debt due to the defendant by him, where

the judgment is set aside, see re Smith 20 Q.B.D. 321.A garnishee compelled to pay the debt under an execution issued by the judgment

debtor is discharged from liability to pay it to the judgment creditor under a garnishee order. Turnbull v. Robertson, 38 L.T. 389. But the garnishee cannot discharge himself by making a voluntary payment. Mayor of London v. London J.S. Bank, G Ap. Ca. 415.

189. The registrar shall keep a debt attachment book, Attachment in which entries shall he made of all attachments made and book-of the proceedings taken in respect of them, with names, dates, and statements of the amount recovered and such other particulars as may he prescribed; and copies of entries made in the book may be taken by any person upon application to the registrar.

190. The costs of an application for an attachment Ooit?, of debts, and of the proceedings arising from or incidentalto the application, shall be in the discretion of the Judge.

Part IX.—General Provisions.

Rules of Court.191. The District Court Judges for the time being, or Power to

a majority of them, may, from time to time, make Pules of ^a0mpareS Court prescribing the mode of keeping the books, entries, 51 & 52 Vic. and accounts to be kept by the registrars, the times forc- 43> 8'164^ appearing to summonses, for filing and serving notices of defence, and the mode of such service, the cases in which


Amount of court fees. Fourth Schedule. [Compare 51 & 52 Vic. c. 43, s. 165.]

Oovernor in Council may alter fees. [Compare 51 & 52 Yic. c. 43, s. 165.]

special defences shall be required, the particulars to be given in any notice of defence or special defence, the fees to be allowed to barristers and solicitors, and the expenses to be paid to witnesses, and may make Rules of Court prescribing forms for any matter or proceeding in District Courts, and otherwise regulating the practice and proceedings of the Courts.

All Rules of Court shall he approved by the Judges of the Supreme Court, or turn of them, of whom the Chief Justice shall be one, and shall be published in the Gazette, and shall not take effect until one month after the publication.

The Rules and forms in force at the commencement of this Act, except so far as they are inconsistent with this Act, shall continue in force until altered or revoked by Rules made under this Act.

In any case not expressly provided for by this Act, or by Rules of Court, the Rules of practice in the Supreme Court shall be adopted and applied by the Judges of the District Courts to actions and proceedings in their several Courts.

Bailiffs and officers to comply with rules, s. 38.Power to make rules as to stamps, r. 197.As to power to make rules under “ The Companies Act Amendment Act of 1889,” see

53 Vic. No. 18, s. 48 (P. & \V. 3738).Rules of court must not be repugnant to statutory provisions. Irving v. Askew, 39

L.J. Q.B. 118.

Fees and Fines.

192. There shall be payable in respect of every civil proceeding in a District Court the fees mentioned in the Fourth Schedule to this Act.

The fees shall be paid in the first instance by the party on whose behalf the proceeding is to be taken, and shall be paid before the proceeding is taken, and the fees payable for executing warrants of execution shall be paid into Court before or at the time of the issue of the process of execution.

A table of the fees shall he put up in some conspicuous place in the court-house and in the registrar’s office.

Fees of court to be collected by means of stamps, r. 197.As to accounts of fees of court, see s. 32.

193. The Governor in Council may alter the scale of fees in any particular:

But the scale of fees so altered shall not come into force until the expiration of one month after it has been notified to both Houses of Parliament, and shall not take effect if within that period, either House of Parliament, by an address to the Governor, signifies its dissent.

55 YIC. No. 33. 81

194. All fees payable in respect of any proceedings Fees and finesto the registrar, except sucli part of them as the bailiff is ^ebe paid t0 ‘ entitled to receive and retain for bis own use under the Consolidated provisions of this Act, and all fines imposed under this j?andUUe Act and received by the registrar, shall be paid into the C51 & 52 Vic. Consolidated Revenue Fund. c' 43,3' ^

As to notices, see Index, title Notice.Registrar’s accounts are liable to audit, s. 32. •

Unclaimed Money in Court.195. The Registrar of every District Court shall, in Suitors’

the month of March in each year, make out a list of all Maimed for sums of money belonging to suitors in the Court which six years to be

have been paid into Court and which have remained un- consolidated claimed for five years before the first day of January then Revenue last past, specifying the names of the persons for whom jx™dparc or on whose account the same -were so paid into Court. 5i & 52 Vic.

1 c. 43, s. 173.]A copy of the list shall be put up and remain during

Court hours in some conspicuous part of the Court house, and at all times in the registrar’s office, and all sums of money which have been paid into Court to the use of any suitors, and which shall have remained unclaimed for the period of six years on the first day of January next after the list has been put up as aforesaid shall be paid into the Consolidated Revenue Fund; and no person shall be entitled to claim any sum which shall have remained so unclaimed.

The time during which the person entitled is an infant, or of unsound mind, or beyond the seas, shall not be taken into account in estimating the period of six years.

As to payment into and out of court, sec also Index, title Payment.

Offences.

196. Any registrar, bailiff, or other officer who appro- Misappropriates to his own use any money or other thing wffiich J0l,comes into his possession by virtue of his office, and which bailiffs.

I t/ f~ T jP fC o t r * tought to be paid or delivered to any other person, shall be£ 43 5nlc‘ guilty of felony, and shall be liable to be kept in penal si.] ’ servitude for any term not exceeding five years, or to be imprisoned with or without hard labour for any term not exceeding two years.

197.(1)

(2)

Any person who-- Punishment

Forges the seal of any process of a District seal or serving Court; or forged9 process.

Serves or enforces a forged process knowing it1 1 n 1 or O 51 & 52 Vic.to be forged; or c. 43, s. iso.]


(3) Delivers or causes to be delivered to any person a paper falsely purporting to be a copy of a summons or other process of the Court knowing

. the same to be false ;shall be guilty of felony, and shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned with or without hard labour for any term not exceeding three years.

As to service in various cases, see Index, title Service.As to documents requiring seal, see Index, title Seal.As to serving forged process, see R. v. Richmond, 28 L. J. M.C. 188; R. v. Evans,

26 L. J. M.C. 92; R. r. Castle, 27 L. J. M.C. 71.

Power of committal for contempt. [Compare 51 & 52 Yic. c. 43, s. 162.]

198. If any person wilfully insults a Judge, or a juror, or a registrar, bailiff, or other officer of a District Court during his sitting or attendance in Court, or in going to or returning from the Court, or wilfully interrupts the proceedings of the Court, or otherwise misbehaves himself in Court, a bailiff or other officer may, with or without the assistance of another person, by order of the Judge, take the offender into custody and detain him till the rising of the Court, arid the Judge may, by a warrant under his hand, and sealed with the seal of the Court, commit the offender to the prison nearest to the Court, for any time not exceeding fourteen days, or may impose on the offender a fine not exceeding ten pounds, and in default of payment may commit the offender to prison for any time not exceeding fourteen days, unless the fine is sooner paid.

Police to attend court and obey judge, 27 Vic. No. 11, s. 9 (P. & W. 1787).A.s to costs of warrant of commitment, see r. 117.For form of warrant, see f. 97..As to contempt by disobedience of order in lieu of mamhunax, see s. 151.Tiie seventh section provides that District Courts shall be couits of record. All

courts of record such as the ►Supreme Court may commit for contempt, and the judges have power to commit to the custody of their officer aedentc curia,, by oral command without any warrant made at the time .... which record may be drawn up when necessary. Kemp r. Neville, 31 L. J. C.P. 158 ; Watson r. Bodell, 14 L. J. Ex. 281; in re Pater, 33 L.J. M.C. 142. Inferior courts of record have no power to commit for contempts which are not committed in the face of the court. Ex parte Joliffe, 42 L.J. Q.B. 121; R. v. Lefroy, L.R. 8 Q.B. 134; Houlden v. Smith, 19 L.J. Q.B. 170; Scott v. Stans- field, 37 L.J. Ex. 155. As to disobedience of orders of the court, see Martin v. Bannister, L.R. 4 Q.B.D. 491.

For illustrations of contempt, see Levy v. Moylan, 19 L.J. C.P. 308; R. v. Staffordshire C.C.J., 57 L. J. Q.B. 483.

An appeal will not lie from a commitment for contempt, but the Supreme Court may interfere where there is no reasonable ground for believing that a contempt has actually occurred. R. r. Jordan, 57 L.J. Q.B. 483; in re Pater, 33 L.J. M.C. 142; re Crawford, 18 L.J. Q.B. 225.

The warrant must specify the particulars of the contempt, so as to enable the • contempt to be purged. R. v. Lambeth C.C.J., 36 W.R. 475.

As to assaulting bailiffs, see Smith v. Pritchard, 19 L.J. C.P. 53; Box v. Green, 23 L.J. Ex. 219.

55 YIC. No. 33. 83

FIRST SCHEDULE. Section 4.

Dat<e of Act. Title. Extent of Repeal.

31 Vic. No. 30 An Act to Consolidate and amend the Laws relating to District Courts

The whole.

31 Vie. No. 41 An Act to amend “ The Jury Act of 1867 ” The whole.36 Vie. No. 11 An Act to ameud “ The District Courts

Act of 1867”The whole.

37 Vie. No. 3 An Act to amend the practice and course of procedure of the Supreme Court of Queensland in equity, and for otherr\n yi’n

Sections 1,2, 3, and 4.

42 Vic. No. 9puiposes

An Act to further amend “ The District Courts Act of 1867 ”

The whole.

SECOND SCHEDULE. Section 64.Special Indorsement on Summons.

If you give notice of your intention to defend, a summons may be issued requiring you to show cause before a judge why the plaintiff should not be at liberty to sign judgment forthwith, for the amount claimed, together with interest (if any) and £ for costs and mileage.

Particulars of Claim to be endorsed on Summons.1. The plaintiff’s claim is for the price of goods sold and delivered. Goods sold

The following are the particulars :— and delivered,1889— 31st December.—

Balance of account for butcher’s meat to £ s. d.this date ... ... ... ... 35 10 0

1890— 1st January to 31st March.—Butcher’s meat supplied.............. ... 74 5 0

1890—1st Februarv.—Paid109 15 0 45 0 0

Balance due £64 15 02. The plaintiff’s claim is against the defendant A.B. as principal, Against

and against the defendant C.D. as surety for the price of goods sold principal and and delivered to A.B. The following are the particulars:— aoodfsoldand

1890—2nd February. Guarantee by C.D. of the price of woollen delivered, goods to be supplied to A.B. •

£ s. d.2nd February—To goods ... ... 47 15 03rd March—To goods ... ... ... 105 14 017th March—To goods ... ... ... 14 12 05th April—To goods ... ... ... 31 0 0

£199 1 03. The plaintiff’s claim is against the defendant as maker of a pro- Against the

missory note. The following are the particulars :— maker of aPromissory note for £100 dated 1st January, 1890, made by

defendant in favour of plaintiff payable four months after date. ’

Principal ... ... ... ... ... ... 101)Interest ... ... ... ... ... ...


Against the 4. The plaintiff’s claim is against the defendant A.B. as acceptor,acceptor and and against the defendant C.D. as drawer, of a hill or exchange. The drawer of a following are the particulars :—exchange. Bill of exchange for £100 dated 1st January, 1890, drawn by

defendant C.D. upon and accepted by defendant A.B. payable three months after date.

£Principal ... ... ... ............... ... 100Interest ... ... ... ... ... ...

For principal and interest on a bond.

5. The plaintiff’s claim is for principal and interest due upon a bond. The following are the particulars :—

Bond dated 1st January, 1889. Condition for payment of £100 on the 26th December, 1889.

£Principal due ................................................... 50Interest ... ... ... ... ... ...

For principal 6. The plaintiff’s claim is for principal and interest due under a and interest covenant. The following are the particulars:—covenant. Deed dated 1st January, 1889, covenant to pay £100 and interest.

£Principal due ... ... ... ... ... 80Interest ... ... ... ... ... ...

For form of special summons, see f. 9.

Section 77. THIRD SCHEDULE.

Judgment Summons.No. (of plaint)

Between , plaintiff,and , defendant.

. Let all parties concerned attend at the chambers of His Honour the Judge , street, [or atthe House, ], on , the

day of , at o’clock in thenoon, on the hearing of an application on the part of the plaintiff that he may be at liberty to sign judgment in this action forthwith, for the amount indorsed on the summons herein, with interest, and costs, including the costs of this application, or for such further or other order as to the judge may seem meet.

Dated this day of , a.d.Registrar.

To the abovenamed defendant (and to his solicitors).

In the District Court of Queensland, Held at

FOURTH SCHEDULE.Court Fees.

In cases not exceeding

. £10.

s. d.For entering plaint and issuing summons ... 2 6For issuing subpoena or subpoenas in an action

or matter... ... ... ... ... 0 0For filing notice of defence or special defence 0 G For issuing summons in interlocutory matter 0 6For filing interlocutory order... ... ... 0 0For filing affidavit other than affidavits as to

service ... ... ... ... ... 0 0For entering judgment ... ... ... 1 0For issuing any warrant ... ... ... 2 0For taxing bill of costs ........................... 1 0For inspection of records in any action or

matter ... ... ... ... ... 0 0For copying same, per folio of 72 words or

figures ................................................... 0 6

Sections 40 192.

In cases not exceeding

£20.In all other

cases.,v. d. s. d.

5 0 10 0

0 6 10 0 6 10 0 6 10 0 6 10

0 6 102 0- 502 6 5 02 6 5 0

0 6 0 6

0 6 0 6

Bailiffs' Fees (in all cases).- Mileage for service of summons or subpoena, or for executing

a warrant, each mile from the court-house (one way) ... 1 0For service fee... ... ... ... ... ... ... ... 2 0For executing a warrant, when the sum levied for does not

exceed twenty pounds ... ... ... ... ... ... 5 0For executing warrant when the sum levied for exceeds twenty

pounds, the like sum for the first twenty pounds, and forevery pound over that sum ...................................................0 3

For keeping possession under a warrant of execution against goodseach day ... ... ... ... ... ... ... ... 6 0

For drawing advertisement of sale, when sale under warrant ofexecution....................................................................................... 5 0

For conveying a person to prison under warrant, per mile ... 1 0The scale of court fees in this schedule stands as it was amended by Order in

Council of the 16th June, 1892.

RULES OF COURT,86

DISTRICT COURT RULES.

In pursuance of the powers conferred upon us by il The District Courts Act, 1891, we, George William Paul, Granville George Miller, and Arthur Baptist Noel, Esquires, being the District Court Judges duly appointed under the said Act, hereby make the following General Rules for regulating the practice and proceedings in the District Courts of the Colony of Queensland, and hereby prescribe the following schedule of forms for any matter or proceeding therein.

These Rules may be cited as “ The District Court Rules, 1891.”

1. The schedule of scale of fees, hereunto annexed, shall form part of these Rules.

Interpretation.2. In the construction of these Rules, words importing the singular number shall

include the plural, and words importing the plural shall include the singular number, and words importing the masculine gender shall include the feminine; and the following terms shall (if not inconsistent with the context or subject matter) have the respective meanings hereinafter assigned to them, that is to say:—

“Affidavit” shall include statutory declarations and affirmations, and the word “sworn ” shall include declared and affirmed according to statute.

“ Clear days ” shall mean that in all cases in which any particular number of days is prescribed for doing any act or for any other purpose, the same shall be reckoned exclusive both of the first, and of the last day.

“ Foreign Court ”—The Court of the District into which the process is issued from another Court.

“Foreign District”—The District into which process is issued from another District.

“ Home Court ”—The Court from which process is originally issued.“ Home District”—The District from which process is originally issued.“ Month ”—Calendar month.“ Ordinary summons ”—A summons under section 62.“ Oath ” shall include statutory affirmation.“ Sealed ”—Sealed with the seal of the particular District Court.“Special summons”—A summons under section 64.“The Act”—“ The District Courts Act, 1891.”“ Trial ”—The trial of the action or the hearing of any matter in Court.

Section 3.And unless there be something in the context inconsistent therewith, the provisions

of the 3rd Section of the Act shall apply to the interpretation of these Rules.

Registrars' duties.Sections 31 to 35.

3. The Registrar shall keep an office at each place where the Court of which he is Registrar is holden, and such office shall be kept open on such days, and for such hours, as the Judge shall from time to time appoint.

For other duties, etc., of registrar, see Index, title Registrar.Registrar enrols list of assessors under “ The Gold Fields Act 1874,” see 38 Yic. No. 11, s. 39

(P. & W. 1572).The hours under the present practice during whisli the registrar’s office is open are:—From 9

till 4 daily, except Saturdays, when the office closes at noon. The office is, of course, closed on Sundays and public holidays.

4. The Registrar shall keep the books in the forms set forth in the schedule, and every entry in such books shall have a number prefixed corresponding with that of the plaint to which the entry relates.

As to evidence of entries in books of court, see s. 34.Officer not to sign book on behalf of suitor, r. 12.Bailiff to keep books, r. 20.

5. The duties of acting in Court as Registrar, and signing the minute book, shall be performed by the Registrar.

As to minute book, see also ss. 12, 32 and r. 1G, and f. II.

6. The Registrar of the Court shall sign and issue all summonses and warrants forthwith after the plaints are entered or warrants applied for.

14th JUNE, 1802. 87

7. Where a summons is required to be served by a bailiff in a foreign district, the Registrar shall transmit the same, and a copy thereof to the bailiff of the foreign district, with a letter according to the form in the schedule; and if the summons be returned to the Registrar by the bailiff of the foreign district not served, the Registrar shall forthwith give notice to the plaintiff of such non-service.

S. The Registrar shall in all cases in which a summons is to be served by a bailiff in a foreign district, require the plaintiff to deposit with him a sum of money sufficient to defray the expenses of, and incident to, such service.

For form of certificate of deposit, see f. 17.

9. The Registrar shall in all cases, where by these Rules particulars are required, annex to the summons a copy of the plaintiff’s particulars, sealed with the seal of the Court; and shall also make and deliver to the bailiff a true copy of the summons for endorsement, as required by Rule 22.

As to particulars, see also s. (it, and Sob. II., and rr. 67, 70, 150, 152, 177, 203.

10. Searches may be made, and the money to which suitors are entitled shall be paid out upon demand, during office hours.

As to payment into and out of court, sec also Index, tide Payment.

11. Whenever money is paid into, or deposited in Court, whether before or after judgment, an acknowledgment in writing of such payment or deposit shall be given by the Registrar... As to payment into and out of court, see Index, title Payment.

12. No officer of the Court, and no partner or clerk of any such officer shall, on account of suitors, sign the ledger, or any other book, or receive money, or otherwise act as an agent for that purpose.

Officers not to act as agents for suitors or in other capacity, s. 42.As to evidence of entries in hooks of court, see s. 31.

13. No officer of the Court, or practising attorney, or clerk of such officer or attorney, shall become surety in any case where by the practice of the Court security is required.

As to giving security, see Index, title Security.

14. In proceedings for which forms are not provided in the Schedule, the Registrar shall frame the forms required, using as guides those so provided, or the forms used in the Supreme Court.

15. Upon receiving the order of the Supreme Court, under Section 129 or Section 130 of the Act, the Registrar shall forthwith apply to the Judge of the District Court to appoint a day for the hearing of the action.

For further as to mittimus, see ss. 129, 130, and it. 150, 151, 153, and ff. 64 to 65.

16. Where under Sections 129 or 130 of the Act, any action is ordered to be tried in a District Court, the registrar of the District Court mentioned in the order shall enter the action in the minute book of the Court for hearing on the day appointed by the judge of such Court, and shall give notice to the parties pursuant to Section 129 of the Act.

17. Orders for payment of money or costs or both, and orders of adjournment, when directed to be served, shall in all cases be prepared by the Registrar of the home Court and delivered to the bailiff, who shall send them by post or otherwise to the parties on whom they are respectively directed to be served.

18. In all cases of warrants to be executed in a foreign district, the Registrar of the foreign Court shall, immediately on the receipt of the warrant, enter it in the foreign execution re-issued book.

19. Every registrar or other officer of a District Court who shall receive any document,note, or memorandum to which a stamp shall be affixed, pursuant to the provisions of any order or rule of court, shall, immediately upon the receipt of such document, note, or memorandum, cancel or deface the stamp thereon, either by sealing the same with a seal, to be provided for that purpose, having thereon the date of such cancellation, or by writing upon such stamp his name, or the initial letters of his name, together with the date of receiving such stamp, in such a manner as to show clearly and distinctly that such stamp has been made use of, and when the same was so used, and so that the same may not again be used; and no such document, note, or memorandum shall be sealed, filed, or delivered out until the stamp thereon shall have been cancelled or defaced in manner aforesaid. .

As to documents requiring seal, see Index, title Seal.

Bailiff's duties.Sections 36 to 41.

20. The bailiff shall keep books and make returns in the forms set forth in the Schedule.

As to evidence of entries in books of court, see s. 31.

21. The bailiff shall attend personally, or by Iris lawful deputy, at the office of the Registrar, when necessary, for the purpose of receiving summonses, and for performing any other duty; and shall, at the said office, compare with the original the copy of every summons delivered to him, so as to be able to prove its correctness, provided that in Brisbane the attendance shall be daily.

88 RULES OF COURT,

22. If the service of the summons has been personal, the bailiff who served the same shall endorse on the copy of the summons delivered to him by the Registrar, the fact and mode of such service; and, if the service has not been personal, he shall endorse on the copy of the summons the statement which has been made by the person to whom the summons was delivered, or other circumstances from which it may be inferred that the service of the summons has come to the knowledge of the defendant; and, if the summons has not been served, the bailiff shall endorse on such copy the fact and the reason of such non-service, and shall deliver such summons and copy to the Registrar with a list of summonses mentioned in Rule 24, unless the Judge shall otherwise order, and such copy shall be produced, at the time of the trial, by the Registrar or bailiff, as the Judge may require.

As to service, see also Index, title Service.

. 23. Where a summons has been served in a foreign district by the bailiff of thatdistrict, he shall, nine clear days before the return day of summons, transmit the copy thereof to the Registrar of the home district with an affidavit of such service, or if the summons has not been served he shall return it with an affidavit stating why it has not been served ; and the affidavit shall state the same particulars as to service or non-service (as the case may be) as are required by the last preceding rule to be endorsed on a summons; and if such affidavit be defective, the bailiff shall amend the same at his own expense in conformity with the directions of the Judge of the home district.

24. Four days before the day of holding any Court the bailiff shall deliver to the Registrar a list of all summonses on plaints issued to him, returnable at such Court, and such return shall state the date and mode of service, or the cause of non-service of each summons, and the bailiff shall at the same time, unless the Judge shall otherwise order, deliver to the Registrar the copy of every such summons which has been served, and the summons itself and copy when not served ; and the bailiff shall verify by affidavit all the statements contained in the list aforesaid.

25. Where the service of any summons has been undertaken by the plaintiff, or any competent person employed by him, the copy of such summons if served, or the summons itself and copy if not served, shall be returned to the bailiff at least six days before the return day thereof, together with an affidavit verifying the service or cause of non-service of such summons.

Where the plaint described the plaintiffs as trustees, but the affidavit of service did not so describe them, and it appeared that they were suing as trustees, held that tho affidavit was sufficient. Moore v. Prest, 1 A. J.R. 151.

26. Wl}ere a summons has not been served, and the summons remains in the hands of the bailiff, he shall at the time of making out the list aforesaid give notice to the plaintiff of the fact of such non-service in the form set forth in the Schedule.

27. The bailiff shall enter in the order book all orders for the payment of money or costs, or both, which he shall have received, and the date on which he shall have caused the same to be posted, or otherwise forwarded.

28. The bailiff shall enter in his warrant book every warrant which he has been required to execute, and shall state from time to time therein what he shall have done under each warrant, and if the same be not executed within one calendar month from the day of its delivery to him, why it was not executed ; and the bailiff shall, at all reasonable times, give to a suitor ever}*- information that he may reasonably require, as to the execution, or non-execution, of any warrant which has been issued at the instance of such suitor.

29. Every bailiff levying or receiving any money, by virtue of any process issuing out of the Court of which he is bailiff, shall forthwith pay over the same to the Registrar of such Court, and file such process in the office of the Registrar.

30. Whenever a warrant required to be executed in a foreign district has not been executed within one calendar month from the day of its receipt by the bailiff of the foreign court, such bailiff shall, on the day after the termination of such month, make a return to the Registrar of the home court of what he shall have done under such warrant, and why it has not been executed; and when the same warrant has not been executed during the time it is in force, such bailiff shall return the same to the said Registrar, within twenty-four hours from the expiration of such time, and shall endorse on such warrant the reason why the same could not be executed, and he shall sign such endorsement, but the bailiff shall return such warrant to the said Registrar at any time, although unexecuted, if he shall be directed to do so by the said Registrar, or shall give such information as such Registrar may require in the matter of the warrant.

31. Whenever a warrant has been executed by the bailiff of the foreign district under Section 173 of the Act, he shall make return forthwith of what he has done to the bailiff of the home district, and shall also forthwith transmit all moneys received under the said warrant to the Registrar of the Court from which it was issued.

Replevin.Section 59.

32. In actions of replevin no other cause of action shall be joined in the summons.As to replevin, see also ss. 113,144, 169.

33. The plaint must be in the form given in the 3rd Schedule to the “Distress Replevin and Ejectment Act of 1867.”*

31 Vic. No. 16 (P. & W. 549).

14th JUNE, 1892. 89

Agreement under Section 61.Section 61.

# 34. Where the parties in pursuance of Section 01 of the Act agree to try any actionin a District Court, a plaint shall be entered, and a summons issued thereon as m other cases, and in such cases the rules and practice of the Court shall be adopted, so far as the same are applicable.

35. Every plaint, except plaints on which special summonses under Section 64 of the Act are issued, shall be entered in the plaint book twenty-one clear days before the return day of the summons, except in the Brisbane District, where it shall be entered twelve clear days.

As to plaints, see also Index, title Tlaint.

Plaint.Section 62.

36. Where the plaintiff is unacquainted with the defendant’s Christian name, the defendant may be described in the plaint summons and other documents by his surname or by his surname and the initial of his Christian name, or by such name as he is generally known; and in the event of the plaintiff or defendant not appearing, the proceedings under Sections 109 and 110 of the Act may be taken, as if the true Christian name and surname had been stated in the plaint summons or other document, and all subsequent proceedings thereon may be taken in conformity with such description, but without prejudice to any amendment to be made at any future time by direction of the Judge.

37. When. an infant applies to enter a plaint for any cause of action (other thanfor wages or piecework, or for work or services as a clerk, servant, mechanic, or labourer) he shall, at the time of entering the plaint, procure the attendance of a next friend,to be approved by the Registrar, and no plaint shall be entered until the nextfriend has undertaken, in the form set forth in the Schedule hereto, to be responsible for costs, who, on entering into such undertaking, shall be liable in the same manner, and to the same extent, as if he were a plaintiff in an ordinary suit, and the cause shall proceed in the name of the infant by such next friend, and the undertaking shall be filed by the Registrar, but no order of the Court shall be necessary for the appointment of such next friend. If the plaintiff fail in or discontinue his suit, and do not pay the amount of the costs awarded by the Court to be paid by him to thedefendant, proceedings may be taken for the recovery of such amount from the nextfriend as for the recovery of any debt ordered to be paid by the Court.

A married woman, during coverture, cannot act as next friend or guardian act litem. Tbynne v. St. Maur, 34 Ch. D. 465. Where during pendency of an action by an infant by his next friend the infant’s father 4ied leaving a testamentary guardian, that guardian has a right to be substituted in the record as the plaintiff’s next friend. Hutchinson v. Norwood, 31 Ch. D. 237.

Unless a compromise be for an infant’s benefit, the next friend has no power to bind the infant to such compromise. Rhodes v. Swithinbank, (C.A,) 22 Q.B.D. 577.

38. On entering the plaint, the plaintiff shall in all cases deliver at the office ofthe Registrar as many copies of a statement of the particulars of his demand or cause of action as there are defendants, and an additional copy to be filed; and where the demand exceeds £200, but the plaintiff desires to abandon the excess or to admit a set-off, and sues in a District Court for the residue, the abandonment or the admission of the set-off shall be entered on the particulars and the copies thereof before service, and in all cases the particulars shall be deemed part of the summons, and shall be served therewith. ‘

Particulars of demand annexed to the scheduled form of plaint are to be read as incorporated with the plaint. Lawes v. Price, 8 V.L.R. (L.) 250.

As to particulars, see note to s. 64 (“Particulars

p 39. At the time of entering the plaint, the Registrar shall give to the plaintiff or his attorney or agent, a note under the seal of the Court according to the form in the Schedule; and no money shall be paid out of Court to the plaintiff or his attorney or agent, unless on production of such note; provided that in the event of such note being lost or destroyed, no money shall be paid to any person unless it be proved on oath to the satisfaction of the Registrar that the person applying is the plaintiff or his agent authorised in that behalf.

Ordinary summons.Section 62.

40. The summons to appear to a plaint shall be in the form set forth in the Schedule, and shall be dated of the day on which the plaint is entered, and the date thereof shall be the commencement of the action.

41. Where a summons has not been served, successive summonses may be issued without entering a new plaint, unless the non-service has been caused by the fact of the defendant’s having removed from the address given before the entry of the plaint, or unless the plaintiff shall have given a wrong or insufficient address; but if the bailiff shall ascertain that the defendant has removed to some other place within the district of the Court, he shall serve the summons at such other place, endorsing on the copy thereof the new address, and the successive summons or summonses shall bear the same date and number as the summons first issued, which date and number shall be written in red ink in the plaint book, and such summonses shall be a continuance of the first summons; provided that no successive summons shall be issued on a plaint which has been entered more than six months.

90 RULES OF COURT,

42. A summons to appear to a plaint, where it is to be served in the home district, shall be served at least eighteen clear days, and where it is to be served in a foreign district shall be served at least twenty-one clear days before the return day thereof; provided that a'summons may be served at any time before the return day on production by the plaintiff to the Registrar of an affidavit showing that the defendant is about to remove out of the ordinary jurisdiction of the Court, and service of such summons at any time before the return day may be deemed good service, if at the hearing the Judge is satisfied on the evidence on oath before him that such party was about to remove out of the ordinary jurisdiction of the Court; but in any such case, whether such proof be given or not, the Judge may, in his discretion, and on such terms as he shall think fit, adjourn the hearing. It is also provided that in the Brisbane District the time for service shall be eight clear days before the return day of th.e summons.

As to service, see also Index, title Service.43. Successive summonses may be issued without leave of the Court for the purpose of

preventing the operation of any statute whereby the time for the commencement of any action is, or may be, limited, and the first and each subsequent summons shall be in force for six calendar months from the time of issuing the same, including the day of such issuing, and such subsequent summons shall be issued before the expiration of the previous summons, and entered in the plaint book of the Court: Provided that on entering theplaint in the first instance the usual fee shall be paid, but for such subsequent summonses no further fee shall be paid, nor shall it be necessary that any attempt be made to serve the first summons, or any successive summonses, unless the plaintiff require the same, and such successive summonses shall be a continuance of the action on and from the day on which the first summons was issued.

As to plea of Statute of Limitations, see s. 71, and rr. 66, 67.44. Where a summons has been served in due time to prevent the operation of any

Statute of Limitations and either party dies after such service, and after the lapse of the period within which it is provided that an action may be brought, proceedings may be taken by or against the surviving party, or by or against the personal representative of the deceased party, within one 3 ear from the date of holding the Court at which the summons,required the defendant to appear.

For practice in actions by and against executors and administrators, see Index, title Executors and Administrators.

As to death of party before judgment, see r. 97.As to death of party after judgment, see r. 98.

Special summons under Section G4.Section G4.

45. The summons shall be in the form set forth in the Schedule, and shall be dated of the day on which the plaint is entered, and the date thereof shall be the commencement of the action.

For further as to final judgment summons, see ss. GO, Gl, 75 to 92, and Sch. II., III., and rr. 22, 64,69, 73, 79 to 81, and ff. 8, 9, 29 to 31.

46. Every special summons shall be in force for six months from the day of the date thereof, including the day of such date, and may loe served on the defendant or defendants therein named at any time within that period.

47. If any defendant named in the special summons shall not have been served therewith, the plaintiff may, before the expiration of the six months, apply to a Judge for leave to renew the summons, and the Judge, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original summons may be renewed for six months from the date of such renewal, and so from time to time during the currency of the renewed summons.

48. The summons shall be renewed by being indorsed with the word “Renewed,” and signed by the Registrar, and sealed with a seal bearing the date of the day, month, and year of such renewal.

Service of ordinary summons.Section G5.

49. Where a defendant is living or serving on board of any ship or vessel, it shall be sufficient service to deliver the summons to the person on board who is, at the time of such service, apparently in charge of such ship or vessel.

As to subpoena, see Index, title Evidence.As to notices, see Index, title Notice.

50. Where a defendant is residing or quartered in any barracks, and serving Her Majesty as a soldier or marine, it shall be sufficient service to deliver the summons at the barracks to the adjutant of the corps, or to any officer or sergeant of the company or troop to which such soldier or marine belongs.

51. Where a defendant is a prisoner in a gaol it shall be sufficient service to deliver the summons at the gaol to the governor or any person appearing to be the head officer in charge thereof.

52. Where a defendant is working in any mine or other works under ground, it shall be sufficient service to deliver the summons at the mine or works to the engine-man, banksman, or other person apparently in charge of the mine or works.

53. Where the defendant is employed and dwells in any lunatic or other public asylum, or in any gaol or house of correction, it shall be sufficient service to deliver the summons to the gate-keeper or lodge-keeper of the asylum, gaol, or house of correction.

As to suspension of execution or discharge of defendant in case of insanity, see s. 177.

14th JUNE, 1892. 91

54. Where a defendant keeps his house or place of dwelling or of business closed, in order to prevent a bailiff from serving the summons, it shall be sufficient service to affix such summons on the door of such house or place of business.

55. Where a bailiff is prevented by the violence or threats of. the defendant, or of any other person or persons in concert with him, from personally serving such summons, it shall be sufficient service to leave such summons as near to the defendant, or to his house, or place of dwelling, or of business, as may be practicable.

56. Wherever a summons has been served in one of the modes hereinbefore mentioned, but it appears that it has come to the knowledge of the defendant in less time that* the period prescribed by these Rules before the return day, the cause may, at the discretion of the Judge, proceed or be adjourned, whether the defendant appears or not at the hearing.

As to adjournment in other eases, see Index, title Adjournment.* Sic, somhle “than.”

57. Where an infant is defendant in any action or matter, service on his father or guardian, or (if none) on the person with whom the infant resides, or under whose care he is, shall, unless the Judge otherwise orders, be deemed good service on such infant.

For further as to proceedings bv and against infants, see ss. 71, 97, 195, and rr. 66, 67, 124, and ff6, 57,58. ' '

58. Where persons are sued as partners in the name of their firm,, the summons shall be served either upon any one or more of the partners, or at the principal place of the partnership business, upon any person having or appearing to have at the time of service the control or management of the business there, and, subject to these Rules, such service shall be deemed good service on the firm.

As to jurisdiction in partnership, see s. 57.' As to suing, etc., in name of firm, see rr. 85, 86.

59. Where one person carrying on business in the name of a firm apparently consisting of more than one person shall be sued in the firm’s name, the summons may be served at the principal place of business of the firm, upon any person having or appearing to have at the time of service the control or management of the ^business there ; and such service, if sufficient in other respects, shall be deemed good service on the person so sued.

60. Where husband and wife are both defendants in any action or matter, they shall each be separately served, unless the Judge shall otherwise order.

For further as to proceedings by husband and wife, see ss. 71, 93, and rr. 66, 67, 92, 99, 200.

61. The above Rules as to the mode, but not those as to the time, of summons to appear to a plaint, shall apply to the mode of service of all si subpoenas, processes, or notices whatsoever, except where otherwise directed b1 or by the Rules of the Court.

62. No summons, subpoena, order, or other process or notice shall be served Christmas Day, or Good Friday, or on any day appointed by proclamation J fast, humiliation, or thanksgiving, but such days shall be counted in the a of the time required by these Rules in respect of such service.

As to when these days are not counted in time alloAved for notice, otc., r. 195.Warrant of commitment may be issued on Sunday, s. 170.

63. If any dispute shall arise, or the Judge shall entertain any doubt, as to the due service of any summons or document, the Judge may make inquiries either on oral evidence or on affidavits whether such service was good or otherwise, or under special circumstances to order that a person who has not been regularly served, if notice of the summons shall have come to his knowledge, shall be deemed to have been sufficiently served, and the case or matter shall proceed as though such person had been regularly served.

It is the cause of action and not the sufficiency of service of summons which gives the court Jurisdiction. Proof of service of summons is entirely a question for the discretion of the judge; and where such discretion has been exercised the Appeal Court will not interfere. For further on this subject, see note to s. 65.

Service of judgment summons.64. A judgment summons may be served either on the defendant’s barrister, solicitor,

or legal practitioner, or personally on the defendant : Provided always that it shall be deemed good service if the Judge is satisfied that the summons has come to the knowledge of the defendant.

Notice of defence.Section 67. '

65. Except in cases where the summons is specially endorsed, whenever it is the intention of the defendant to contest the plaintiff’s claim, or any part thereof, the defendant shall, at least eight clear days before the return day of the summons, deliver, or cause to be delivered, to the Registrar of the Court a notice in writing of such intention : Provided that in the Brisbane District the time for delivery of notice of defence shall be five clear days.

66. Where the defendant intends to rely upon set-off, infancy, coverture, Statute of Frauds, Statute of Limitations, discharge under any act for the relief of insolvent debtors, a plea of justification in any action of tort (including wrongful dismissal) or any equitable defence, he shall, at least five clear days before the return day of the summons, deliver to

92 RULES OF COURT,

the Registrar a plea setting forth such defence : Provided that by leave of a Judge the defendant may be allowed in to plead these defences at any time on such terms as to costs or otherwise as the Judge may think fit.

As to notice of these special defences, see s. 71.As to frauds and limitations, see “Statute of Frauds and Limitations of 1867,” 31 Vic. Xo. 22

(P. & TT. 787).As to insolvency, see also ss. 71, 9-1, 171.For further as to proceedings Ly and against infants, sec ss. 71, 97, 195, and rr. 57, 67, 124, and

ff. 6, 57, and 58.For further as to proceedings by husband and wife, see ss. 71, 93, and rr. 60, 07, 92, 99, 200.As to jurisdiction over equitable claims, see s. 58.As to plaint in equitable claim, see s. 63.As to equitable defence, see also ss. 69-71.As to what action of tort may he referred from Supreme to District Court, see s. 130.As to practice on set-off, see Index, title Set-off.As to plea of Statute of Limitations, see also s. 71, and r. 11.

G7. The plea shall contain the following—(1.) If of set-off, particulars of such set-off.(2.) If of infancy, a statement setting out the place and date of birth, if known.(3.) If of coverture, a statement setting out the place and date of marriage,

Christian name and surname of husband, and his last known place of address.(4.) If of discharge under any Act for the relief of insolvent debtors, a statement

setting forth the date of his certificate and the allowance thereof or the date of proof of debt by the plaintiff.

(5.) If of an equitable defence, a statement showing concisely the circumstances which gave rise to such defence, and setting forth separately each of the grounds of equitable defence.

68. Where the defence is a tender, such defence shall not be available, unless before or at the hearing of the cause the defendant pays into Court the amount alleged to have been tendered, which need not include costs.

As to payment into and out of court, see also Index, title Payment.A plea of tender is only applicable to cases where the defendant has never been guilty of any

breach of his contract. Hume v. Peploe, 8 East. 170; McEwan v. Dynon, 3 V.L.R. 275.

69. If a defendant intends to contest the plaintiff’s claim under a special summons, he shall, within ten clear days of service if the summons is served in a home district, and within thirteen clear days of service if the summons is served in a foreign district, file with the Registrar of the home district a notice of defence. The time for filing notice of defence in the Brisbane District shall be within five clear days after service of such summons.

70. A plaintiff may deliver amended particulars of claim and a defendant amended pleas at any time before the hearing, but the Judge may disallow such amendment at the trial or may make such order as to adjournment or otherwise as he may think fit.

As to adjournment in other cases, seo Inflex. title Adjournment.As to particulars, see also s. 61, and Sch. II., and rr. 9, 67, 150, 152, 177, 203.

71. If in any case in which the defendant has given notice of a set-off, the action ofthe plaintiff is stayed, discontinued, or dismissed, the defendant may nevertheless proceed to prove his set-off. '

As to discontinuance by plaintiff, see r. 76.For further as to stay of proceedings, see Index, tille Stay.

72. Where a plaintiff avails himself of the provisions of Section 95 of the Act, and proceeds against any one or more of several persons jointly answerable, the defendant or defendants sued may avail himself or themselves of .any set-off or other defence to which he or they would be entitled if all the persons answerable were made defendants.

As to suing persons jointly liable, see s. 95.

73. Where the defendant gives notice of defence to a special summons, the plaintiff may, instead of taking out a judgment summons, give to the Registrar and to the defendant, or each of the defendants if there be more than one, eight clear days’ notice of trial where the summons has been served in the home district, and thirteen clear days’ notice where it has been served in a foreign district: Provided that a Judge, on the application of either party, may vary the times for giving such notice of trial.

Payment into Court before judgment.Section 72.

74. Where the defendant is desirous of paying money into Court, it shall (except where otherwise expressly provided) be paid eight clear days before the return day of summons, with Court fees and the attorney’s costs : Provided that at any time before the return day the defendant may pay money into Court with such costs as aforesaid, and give notice thereof to the plaintiff; and where money is so paid in less than eight clear days before the return day, it shall be lawful for the Court to order the defendant to pay such costs as the plaintiff shall have reasonably incurred in preparing for trial before the notice of such payment was received by him. In the Brisbane District the time for such payment shall be five clear days.

As to payment into and out of court, see also Index, title Payment.

14th JUNE, 1892. 93

75. If the plaintiff elect to accept in full satisfaction of his claim, including costs, such money as shall have been paid into Court by the defendant, and shall send to the Registrar and to the defendant by post, or leave at the Registrar’s Office and at the defendant’s place of dwelling, or place of business, a written notice, stating such acceptance within such reasonable time before the return day, as the time of payment by the defendant has permitted, the action shall abate, and the plaintiff shall not be liable to any further costs. But in default of such notices from the plaintiff the cause may proceed.

For further as to stay of proceedings, see Index, title Stay.

Withdrawal by plaintiff.70. If the plaintiff be desirous of not proceeding in any action or matter, he may give

notice thereof to the Registrar and to the defendant or his attorney, and after the receipt of such notice the defendant shall not be entitled to any further costs than those reasonably incurred up to the time of the receipt of such notice, unless the Judge shall otherwise order.

As to set-off on discontinuance of action, see r. 71.

Judgment upon admission of defendant.Section 73.

77. All confessions under Section 73 of the Act shall be delivered to the Registrar eight clear days before the return day of the summons: Provided that at any. time before the cause is called on the defendant may confess and admit the claim, according to the form set forth in the Schedule, subject, however, to an order by the Judge to pay such costs as the plaintiff has incurred in consequence of the defendant’s not having delivered such confession, as hereinbefore required. In the Brisbane Court the time for delivering confessions under the above section shall be five clear days before the return day of the summons.

Consent to judgment under Section 74 of the Act.Section 74.

78. In all cases of consent under Section 74 of the Act, the defendant may confess the amount of the plaintiff’s costs besides the Court fees, and the judgment may be entered accordingly, and the amount of such costs shall be stated separately.

For forms, see ff. 25, 26.As to agreement as to amount of debt, etc., see s. 74.

Judgment summons under Section 77.Section 77.

79. A judgment summons under Section 77 of the Act shall, if served, in the home district, be returnable ten clear days after service, if in a foreign district within thirteen clear days after service. If served in the Brisbane District it shall be returnable five clear days after service.

80. When a defendant obtains leave to defend under Section 92 of the Act, the action shall be set down for hearing at the first sittings of the Court to be held next after such leave to defend was obtained, unless the Judge shall otherwise order.

81. The defendant shall file with the Registrar all affidavits to be used by him on the hearing of a judgment summons, at least one clear day before the return day thereof.

Pavtics. .

Section 93.82. All persons may be joined as plaintiffs in whom the right to any relief claimed is

alleged to exist, whether jointly, severally, or in the alternative, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to. without any amendment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person or persons who shall not be found entitled to relief, unless the Judge in disposing of the costs of the action shall otherwise direct.

This rule is identical with 0. XVI., r. 1, of the rules under the Judicature Act (P. & "VV. 1933).

83. All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative, and judgment may.be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.

Compare O. XVI., r. 3 (P. & Vf. 1931).

84. The plaintiff may, at his option, join as parties to the same action all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

As to bill of exchange and promissory notes, see also ss. 3, 64,100,167.Compare O. XVI., r. 5 (P. & W. 1934).

85. Any two or more persons claiming or being liable as co-partners may sue or be sued in the name of their respective firms, if any ; and on application by any party to an action in such case the Judge may order a statement of the names of the persons who are co-partners in any such firm to be furnished in such manner, and verified on oath or otherwise, as the Judge may direct: Provided that where an action is brought against a firm and the plaintiff desires to obtain judgment against each member of the firm, he

94 RULES 01* COURT,

shall state the names of the persons whom he believes are co-partners in such firm, and file an affidavit and copy thereof setting forth the grounds of his belief, and the registrar shall thereupon attach to the summons a copy of such affidavit, together with a notice, according to the form in the schedule, that if sufficient cause be not shown at the trial the Judge will order judgment against all the persons whose names have been so given and verified ; and the Judge may at the trial give judgment, if he thinks fit, against all the persons whose names have been inserted in such notice, and who shall have been served with the summons, with a copy of the affidavit, and notice annexed in the manner and within the time in which an ordinary summons should be served.

As to jurisdiction in partnership, see s. 57.As to service on partners, see rr. 58. 59.Compare O. XLVIII. a (P. & W. 4513).

8G. Any person carrying on business in the name of a firm apparently consisting of more than one person may be sued in the name of the firm.

Compare 0. XVI., r. 10 a (P. & W. 1934).

Amendment of parties.t 87. Where a person other than the defendant appears at the hearing and admits that

he is the person whom the plaintiff intended to charge, his name may be substituted for that of the defendant, if the plaintiff consents ; and thereupon the cause shall proceed as to set-off and other matters as if such person had been originally named in the summons, and the costs of the person originally named as defendant shall be in the discretion of the Judge.

As to amendment of parties, see also note to s. 131.In the Supreme Court it is practice to accept the statement of a solicitor that the party proposed

to be added consents to be so added, and not to require any formal consent. Cox v. James, 19 Ch. D. 65.As to practice on set-off, see Index, title Set-off.

88. Where a party sues or is sued in a representative character, but at the hearing it appears that. he ought to have sued or been sued in his own right, the Judge may at the instance of either party, and on such terms as he shall think fit, amend the proceedings accordingly, and thereupon the cause shall proceed as to set-off and other matters as if the proper description of the party had been given in the summons.

89. Where a party sues or is sued in his own right, but at the hearing it appears that he ought to have sued or been sued in a representative character, the Judge may, at the instance of either party, and on such terms as he shall think fit, amend the proceedings accordingly, and thereupon the cause shall proceed as to set-off and other matters as if the proper description of the party had been given in the summons.

90. Where the name or description of a plaintiff in the summons is insufficient or incorrect, it may at the hearing be amended at the instance of either party, by order of the Judge, on such terms as he shall think fit, and thereupon the cause shall proceed as to set-off and other matters as if the name or description had been originally such as it appears after the amendment has been made.

91. Where the name or description of a defendant in the summons is insufficient or incorrect, and the defendant appears and objects to the description, it may at the hearing be amended at the instance of either party, by order of the Judge, on such terms as he shall think fit, and thereupon the cause shali proceed as to set-off and other matters as if the name or description had been originally such as it appears after the amendment has been made ; but if no objection is taken to the name or description the cause may proceed, and in the judgment and all subsequent proceedings founded thereon the defendant may be named and described in the same manner.

92. In actions by or against a husband, if a wife be improperly joined or omitted as a party, the summons may at the hearing be amended at the instance of either party, by order of the Judge, on such terms as he shall think fit, and thereupon the cause shall proceed as to set-off and other matters as if the proper person had been made party to the suit.

For further as to proceedings by husband and wife, see ss. 71, 93, and rr. GO, 66, 67, 99, 200.

. 93. Where it appears at the heaving that a greater number of persons have been made plaintiffs than by law required, the names of the persons improperly joined may, at the instance of either party, be struck out, by order of the Judge, on such terms as he shall think fit, and thereupon the cause shall proceed as to set-off and other matters as if the proper party or parties had alone been made plaintiffs.

. 94. Where it appears at the hearing that a less number of persons have been made plaintiffs than by law required, the name of the omitted person may, at the instance of either party (with his consent), be added by order of the Judge, on such terms as he shall think fit, and thereupon the cause shall proceed as to set-off and other matters as if the proper persons had been originally made parties; and if such person shall, either at the hearing or at some adjournment thereof, personally or by writing signed by him or his agent, consent to become a plaintiff in manner aforesaid, the Judge shall then pronounce judgment as if such person had originally been made a plaintiff ; but if such person shall not consent to become a plaintiff in manner aforesaid, either at the hearing or at the adjournment thereof, judgment of nonsuit shall be entered.

As to adding a co-plaintiff. Reg. v. Judge of the Clerkenwcll County Court, 7 Times L.R. 40.As to nonsuit, see ss. 109, 111, 132, and f. 54.

14th JUNE, 1802. 05

95. Where it appears at a hearing that a greater number of persons have been made defendants than by law required, the name of the person improperly joined may, at the instance of either party, be struck out by order of the Judge, on such terms as he shall think lit, and thereupon the cause shall proceed as to set-off and other matters as if the proper party or parties had alone been made defendants, and the costs of the person improperly joined as a defendant shall be in the discretion of the Judge.

96. Where two or more persons are made defendants, and some of them have not been served, the name or names of the defendant or defendants who have not been served may, at the instance of either party, be struck out by order of the Judge, on such terms as he shall think lit, and thereupon the cause shall proceed as to set-off and other matters, as if the party or parties whose name or names have not been struck out, had alone been made defendant or defendants.

97. Where a sole plaintiff or defendant or one or more of several plaintiffs or defendants shall die before judgment, the action shall not abate if the cause of action survive or continue.

As to abatement in proceedings by husband and wife, see s. 93.As to abatement on insolvency, see s. 94.

98. Where one or more of several plaintiffs or defendants shall die after judgment, proceedings thereon may be taken by the survivor or survivors, or against the survivor or survivors without leave of the Court.

99. Where a married woman is sued as a femme sole, and she obtains judgment on the ground of coverture, proceedings may be taken thereon in the name of the wife at the instance of the husband without leave of the Court.

As to proceedings by husband and wife, see ss. 71, 93, and rr. 60, 66, 67, 92, 200.

Proceedings by and against executors and administrators.Section 96.

For practice in action by and against executors and administrators, see also Index, title Executors and Administrators.

100. In actions by executors or administrators, if the plaintiff fail the costs shall, unless the Court shall otherwise order, be awarded in favour of the defendant, and shall be levied de bonis propriis.

101. Where an executor or administrator, plaintiff or defendant, shall not appear on the day of hearing, the provisions of Sections 109 and 110 of the Act shall apply respectively, subject to the Rules applicable to executors or administrators suing or sued.

102. A party suing an executor or administrator may charge in the summons that the defendant has had assets and has wasted them.

103. In all cases where the defendant is so charged in the summons, if the Court shall be of opinion that the defendant has wasted the assets, the judgment shall be that the debt or damage and costs shall be levied de bonis testator is, si the., et si non, de bonis propriis; and the non-payment of the amount of the demand, immediately on the Court finding such demand to be correct, and that the defendant is chargeable in respect of assets, shall be conclusive evidence of wasting to the amount with which he is so chargeable.

104. Where a defendant sued as an executor or administrator does not appear, or where the defendant appearing denies his representative character, or alleges a release to himself of the demand, whether he insists on any other ground of defence or not, if the judgment of the Court be in favour of the plaintiff, the judgment shall be that the amount found to be due and costs shall be levied de bonis testatoris, si dc., et si non, de bonis propriis.

105. Where a defendant sued as an executor or administrator admits his representative character, and only denies the demand, if the plaintiff prove it, the judgment shall be that the demand and costs shall be levied de bonis testatoris, si dc., et si non, as to the costs, de bonis 'propriis.

106. Where such defendant admits his representative character, but denies the demand and alleges a total or partial administration of assets, and the plaintiff proves his demand, and the defendant proves the administration alleged, the judgment shall be to levy the costs of proving the demand de bonis testatoris, si tic., et si non, de bonis propriis ; and as to the whole or residue of the demand, judgment of assets quando aceiderint; and the plaintiff shall pay the defendant’s cost of proving the administration of assets.

107. Where such defendant admits his representative character, but denies the demand and alleges a total or partial administration of assets, and the plaintiff proves his demand, but the defendant does not prove the administration alleged, the judgment shall be to levy the amount of the demand, if such amount of assets is shown to have come to the hands of the defendant, or such amount as is shown to have come to them, and costs de bonis testatoris, si dc., et si non, as to the costs de bonis propriis, and as to the residue of the demand, if any, judgment of assets, quando aceiderint.

As to proper method of proceeding for assets received by defendant since plea of plene adminis- truvit pleaded, see Ellis v. Watt, 19 L.J. C P. 113.

108. Where such defendant admits his representative character and the plaintiff’s demands, but alleges a total or partial administration of the assets, and proves the administration alleged, the judgment shall be for assets quando aceiderint, and the plaintiff shall pay the defendant’s costs of proving the administration of assets.

109. Where such defendant admits his representative character and the plaintiff’s demand, but alleges a total or partial administration of the assets, but doe3 not prove the administration alleged, and has not established any other ground of defence, the judgment

96 RULES OF COURT,

shall be to levy the amount of the demand, if so much assets is shown to have come to the hands of the defendant, or such amount as is shown to have come to them, and costs dc bonis testatoris, si ci'c., et si non. as to the costs de bonis propriis, and as to the residue of the demand, if any, judgment of assets, quando aceiderint.

110. Where judgment has been given against an executor or administrator, that the amount be levied upon assets of the deceased quando aceiderint, the plaintiff, or his personal representative, may issue a summons ; and if it shall appear that assets have come to the hands of the executor or administrator since the judgment, the Court may order that the debt, damages, and costs be levied de bonis testatoris, si ti-c., et si non, and as to the costs de bonis propriis: Provided that it shall be competent for the party applying to charge in the summons that the executor or administrator has wasted the assets of the testator or intestate in the same manner as in Rule 101,* and the provision of Rule 102f shall apply to such inquiry, and the Court may, if it appear that the party charged has wasted the assets, direct a levy to be made as to the debt and costs de bonis testatoris, si dec., et si non, de bonis propriis.

* Sic, semble “ 102.”t Sic, semble “ 103.”

111. Where a defendant admits his representative character and the plaintiff’s demand, and that he is chargeable with any sum in respect of assets, he shall pay such sum into Court, subject to the rules relating to payment into Court in other cases.

As to payment into and out of court, see also Index, title Payment.112. In actions against executors or administrators, for which provision is not herein

before specially made, if the defendant fail as to any of his defences, the judgment shall be for the plaintiff as to his costs of disproving such defence, and such costs shall be levied de bonis testatoris, si dec., et si non, de bonis propriis.

Evidence.Section 102.

113. Subpoenas to witnesses may be issued without leave of the Judge to be served either in the home or in any foreign district.

114. It shall be sufficient if a subpoena to a witness be served within a reasonable time before the return day thereof.

As to subpoena, see Index, title Evidence.115. If any witness who has been summoned to attend shall, before he is sworn, request

the Judge to fix the amount to be paid to him as a witness, the Judge may do so, and may decline to compel the witness to give his evidence until the amount so fixed shall have been paid to him or security given to the satisfaction of the Judge.

For further as to expenses of witness, see ss. 103, 122, 157, and rr. 143, 144.

116. When a party desires to give in evidence any document, he may, within a reasonable time before hearing, give notice in writing to any other party in the action who is competent to make admissions, requiring him to admit such document; and if such demand be not complied with, any expense of proving the said document shall be paid by the other party, whatever be the result of the action, unless the Judge shall otherwise order; and no costs of proving any document shall be allowed unless such notice be given, except where, in the opinion of the Registrar, the omission to give such notice has been a saving of expense.

117. Where in any action any party is desirous of inspecting any written or printed document or instrument which he is entitled to inspect, relating to the matter in question in such action, and which shall be in the possession or power or under the control of the other party, such first-mentioned party may, five clear days before the day of hearing, give notice to the other party, by post or otherwise, that he or his solicitor desires to inspect any such document or instrument, describing the same, at any place to be appointed by the other party ; and if such other party shall neglect or refuse to appoint such place, or to allow such plaintiff or defendant or his solicitor to inspect such document or instrument within three clear days after receiving such notice, the Judge may, in his discretion, on the day of trial, adjourn the action and make such order as to costs as he shall think fit.

As to adjournment in other cases, see Index, title Adjournment.118. Where any documents are produced to the Court from proper custody, they shall

be read without further proof, if they appear genuine, and if no objection be taken thereto ; and if the admission of any document so produced be objected to, the Judge may adjourn the hearing for the proof of the documents, and the party objecting shall pay the costs caused by such objection, in case the documents shall afterwards be proved, unless the Judge shall otherwise order.

As to adjournment in other cases, see Index, title Adjournment.Trial.

Section 106,119. The parties to any cause, at any time before, or at the time when, the cause is

called on, may by consent postpone the hearing to such subsequent Court as the Judge shall direct.

As to adjournment in other cases, see Index, title Adjournment.

120. Where a cause is adjourned, no order of adjournment shall be served on either party, unless by direction of the Judge.

AS to adjournment in various cases, see Index, title Adjournment.

14th JUNE, 1892. 97

121. When anything required by the practice of the Court to be done by either party before or during the hearing, has not been done, the Judge may in his discretion, and on such terms as he shall think fit, adjourn the hearing to enable the party to comply with the practice.

As to adjournment in other cases, see Index, title Adjournment.122. If at the return day of a summons, or at any adjournment of the Court at

which it is returnable, the plaintiff does not appear, and the defendant does appear and does not admit the plaintiff’s demand, the Judge may in his discretion award to the defendant costs in the same manner and to the same amount as to barrister, attorney, witnesses, and other matters, as if the cause had been tried.

123. No attorney shall be allowed to appear for any person in a District Court until he has been admitted to practice in the Supreme Court of Queensland.

As to solicitors in this court, see Index, title Solicitors.As to appearance by attorney whose name is not on the roll, see Giffard v. Unity, etc., Coy.,

0 A.L.T. 159; R. v. Cope, 1 A.J.R. 23.

124. Where an infant defendant appears at the hearing, and names a person willing to act as guardian, who then assents so to act, such person shall be appointed guardian accordingly; but, if the defendant do not name a guardian, the Judge may appoint any person in Court willing to become guardian, or, in default of such person, the Judge shall appoint the Registrar of the Court to be guardian, and the cause shall proceed thereupon as if another person had been appointed guardian; and the name of the guardian appointed shall be entered in the form in the Schedule; and no responsibility shall attach to the Registrar when so appointed guardian at the instance of the Court.

The father as natural guardian should be appointed where there is no reason against it. Watson v. Fraser, 8 M. & W. 660.

For further as to proceedings by and against infants, see ss. 71, 97,195, and rr. 57,66, 67, and ft. 6, 57, 58.

125. When the Court gives leave to take any proceeding it shall not be necessary to draw up any order unless the Judge otherwise directs.

126. Upon a defended cause being called on for hearing the defendant shall, if required, state the grounds of his defence.

As to defences, see rr. 67, et seq.A defendant stating his defence under this rule is limited in his evidence to the matters included

in the defence so stated, and he cannot set up any other defence without the leave of the court. Howse v. Glowry, 8 V.L.R. (L.) 280, per Higinbotham, J.

Trial by jury.Section 113.

127. Notice of demand of a jury shall be made in writing to the Registrar of the Court in the Brisbane District five clear days, elsewhere eight clear days, before the day of hearing.

Affidavits.Section 119.

128. Every affidavit shall be intituled in the action or matter in which it is sworn, but in every action in which there are more plaintiffs than one it shall be sufficient to state the full name of the first plaintiff and defendant respectively with the addition of the words “and another” or “and others” as may be. Every affidavit sworn in an action shall bear the year and number of the action.

As to where affidavits are required, see Index, title Affidavit.For forms of affidavit in various cases, see ff. 27, 29, 50, 63.Under a similar rule in the English Judicature Act affidavits erroneously entitled were allowed

to be taken off the file and resworn in their proper title, without fresh stamps. Pearson v. Willcox, 10 Hare App. 35. See also Underdown v. Stannard, W.N. (1871) 171; Whiting v. Bassett, 14 Eq. 70.

129. Every affidavit shall be drawn up in the first person and divided into paragraphs numbered consecutively, and every paragraph shall be confined as nearly as may be to a distinct portion of the subject.

130. Every affidavit shall state the description and true place of abode of the deponent.Compare Judicature Rules, O. XXXVI., r. 3 c. Affidavits giving no address, or only an illusory

address, were rejected. Hyde v. II., 59 L.T. 523; lie Levy, 37 W.R. 396.

131. Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory applications, on which statements as to his belief with tne grounds thereof may be admitted.

Compare Judicature Rules, O. XXXVI., r. 3.132. All affidavits shall state distinctly what facts or circumstances deposed to are

within deponent’s own knowledge, and his means of knowledge, and what facts or circumstances deposed to are known to or believed by him by reason of information derived from other sources than his own knowledge, and what such sources are*

Compare Judicature Rules, O. XXXVI., r. 3 b. The party against whom an affidavit is made may take the objection that the grounds of information and belief are not stated, and if the objection is (me of substance the court is bound to regard it. Bidder v. Bridges, 26 Ch. D. 1; Quartz Hill, etc., Hining Co. v. Beall, 20 Ch. D. 508; Bonnard v. Perryman (1891), 2 Ch. 269.

The court has inherent power to bake an affidavit off the file, if scandalous, irrelevant or prolix, cr may order the scandalous matter to be expunged. Osmaston v. Association of Land Financiers V.N. (78) 101; Warner v. Mosses, W.N. (81) 69 ; Hill v* Hart-Davis, 26 Ch. D. 470; but see Owens v Lmmens, W.tf. (75) 210 and 234.

08 RULES OF COURT,

133. In every affidavit made by two or more deponents, the names of the several persons making the affidavit shall be inserted in the jurat., but if the affidavit of all the deponents is taken at one time by the same officer it shall be sufficient to state that it was sworn by both or all of the “abovenamed” deponents.

Compare Judicature Buies, 0. XXXVI., r. 3 cl. Every affidavit must be signed by the deponents (Anderson v. Stather, 9 Jur. 1085), and also by the person before whom it is sworn. Ex parte Heymann, L.B. 7 Ch. 488 ; but see Gates v. Buckland, 13 W.B. 67. As to place of signature, see Down v. Yearley, W.N. (74) 158.

134. Every affidavit shall be stamped with a proper fee stamp, and shall, except by leave of a Judge or where the Act or Rules otherwise provide, be filed in the Registrar’s office before whom it is used.

As to stamps, see also rr. 19, 197 to 199.

135. There shall be appended to every affidavit a note showing on whose behalf it is filed.

136. Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read by him or in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his or her mark or signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of such certificate unless a Judge is otherwise satisfied that the affidavit was read over to and apparently understood by the deponent.

Certificate to be sealed, s. 8.Compare Judicature Buies, 0. XXXVI., r. 3 g. As to illiterate deponent, sec Fernyhougli v.

Naylor, 23 W.B. 228.

137. The Court or a Judge may allow any affidavit to be used notwithstanding any defect, by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on such affidavit that it has been so received.

As to misdescription in plaint, see s. 62.For cases where defective affidavits were received, see Harlock v. Ashberry, 28 Sol. Jo. 26;

Eddowes v. Argentine M.A. Co., 38 W.B. 629.

138. No affidavit is to be deemed sufficient which has been sworn before the party on whose behalf the same is offered, or before his solicitor or before a clerk or partner of his solicitor.

Compare Judicature Buies, 0. XXXVI., r. 3 o.

139. No affidavit having any interlineation, alteration, or erasure in the jurat or body thereto shall, without leave of a Judge, be used, unless the interlineation or alteration, other than by erasure is authenticated by the initials of the person taking the affidavit, nor in the case of erasure unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialled in the margin of the affidavit by each person.

Compare Judicature Buies, 0. XXXVI., r. 3/. See Gill v. Gillbard, 9 Hare App. 16.

140. A party intending to use an affidavit not previously used shall serve a copy thereof within a reasonable time on every party against whom it is intended to be used, otherwise the same shall not be read or used without the leave of a Judge.

141. Every document referred to as an exhibit in an affidavit shall be attached to the affidavit and referred to therein as attached, and marked with a distinguishing letter or number, and shall be identified by the officer before whom it is sworn. And every certificate on an exhibit referred to in an affidavit signed by the officer before whom the affidavit is sworn, shall be marked with the short title of the action or with the title of the matter or an abbreviation thereof sufficient for identification.

Certificate to fie sealed, s. 8.

142. When a copy of any document is attached to an affidavit and a question may arise as to the accuracy of the copy or the existence or authenticity of the original, the party on whose behalf the affidavit is made may at any time, when the affidavit is tendered in evidence, produce the original for the purpose of being compared with the copy, or otherwise inspected by the Court or Judge or the parties.

Costs.Section 120.

143. The Judge shall in each case direct what number of witnesses are to be allowed on taxation of costs, between party and party, and their allowance for attendance shall in no case exceed the rate of the allowances mentioned in the scale in the Schedule.

As to enforcing agreements between solicitor a 3d client as to costs, see “ The Solicitors Act, 1891,” 55 Vic. No. 22, s. 7 (P. & W. 4407).

For further as to expenses of witnesses, see ss. 103, 122, 135, 157, and rr. 115.

144. The costs of witnesses, whether they have been examined or not, may, in the discretion of the Judge, be allowed, though they have not been subpoened.

145. Money paid into Court on a judgment shall be appropriated, first in satisfaction of the costs, and afterwards in satisfaction of the original demand.


14th JUNE, 1892. 99

146. Costs of warrants of execution, whether executed or unexecuted, or unproductive,shall be allowed against the defendant, unless the Judge shall otherwise direct. .

147. Costs of warrants of commitment and writs of capias ad satisfaciendum, whether executed or unexecuted, shall be allowed against the defendant, unless the Judge shall otherwise direct.

As to commitment for contempt, see ss. 151, 198.For form of warrant, see f. 97.For forms of summons, order, and writ of ca. sa., see if. 83, 84, 85.

148. No possession fee shall be payable where an execution is paid out at the time of the levy; but if the officer shall necessarily remain in possession more than one hour, and the execution shall be paid out on the day of levy, the possession fee for that day shall be charged.

149. In all cases in which an attorney or legal practitioner shall have been employed by either party, and such party shall recover costs of suit, the amount whereof has not been determined by the Judge at the hearing, the attorney of the party entitled to such costs shall, at any time before or within twelve calendar months after the date of judgment, file his bill of costs with the Registrar, who shall thereupon give an appointment for the taxation thereof, a copy of which appointment and costs. shall be served on the opposite party within a reasonable time before the time appointed for such taxation, and if either party obtaining the appointment fail to appear, the Registrar may tax ex parte: Provided that in undefended cases, the service on the defendant of such appointment and costs may be made by posting the -same to the defendant’s last known place of abode or address: Provided also, that the time for filing a bill of costs may be extended by the Registrar.

As to taxation, see also ss. 121,123,125.

Remitted actions.Section 129.

150. Where any action is remitted by order of the Supreme Court to a District Court, the plaintiff shall lodge with the Registrar thereof, if no statement of claim has been delivered, a concise statement of the particulars, such as would be required upon entering a plaint, signed by the plaintiff or his solicitor; and shall at the same time deliver to the Registrar as many copies of such statement of particulars as there are defendants.

For further as to mittimus, see ss. 129 and notes thereto, 130, and rr. 15,16, and ff. 64, 65.

151. If no statement of defence has been delivered the defendant shall give his notice of defence as prescribed by these Rules, and the day fixed by the Judge for the hearing of the action shall be considered the return day for the purpose of giving such notice.

152. The Registrar of the District Court shall give the parties such notice of the day appointed for hearing as the Judge shall direct; and, where a statement of the particulars of the plaintiff’s demand has been lodged, shall, with the notice, send to each defendant a copy thereof, sealed with the seal of the Court.

153. Actions remitted from the Supreme Court to a District Court may be set down for hearing by the Judge of the District Court to which they have been remitted (if no jury be required by either party) on other dates (subject to these Rules) than those proclaimed for holding sittings of such District Court.

Judgment.. Section 132.

154. The judgment in detinue, if for the plaintiff, shall be for the value of the goods detained, together with a sum to be stated in the judgment by way of damages for the detention and costs ; but it may be made part of the order that on payment of damages for the detention and costs, and return of the goods on or before a day to be named, satisfaction shall be entered.

For form of judgment, see f. 51.For form of warrant of execution, see f. 82.

• A District Court judge in an action for detinue can order the delivery up of a chattel! without giving the defendant the option of paying an assessed value of the -chattel withheld by him. “Winfield v. Boothroyd, 2 Times L.R. 472.

155. Where an order is made for the payment of any sum of money by ins fcalinents, such instalments shall be payable at such periods as the; Judge shall order; and if no period be mentioned, the first shall become due on the ti.venty-eighth day from that of making the order; and every successive instalment shall become due at a like* period of twenty-eight days from the day of the previous instalment becoming due.

As to payment by instalments, see also ss. 133,176, and r. L7 0.

156. Where any Judge shall reserve his decision on srny question of fact or: law arising in any action or other proceeding brought in a District Oourt, he may give the^sameat any continuation or adjournment of such Court, or at any subsequent sitting thereof, or he may draw up such decision in writing, and having signed the same, forward it to the Registrar of the Court. Upon the receipt of such decision, the liegistrar shall notify the parties or their solicitors of his intention at some convenient time 'specified by him to reiad the same in the Court-house at which such Court is held, or other -convenient place, and he shall read the same accordingly, if either or both parties his «or their solicitor or solicitors shall be present; but if the parties or either of them shall not be present at such reading,

loo RULES OF COURT,

the Registrar shall forward a copy of such judgment to the absent party or parties, and such decision shall be of the same force and effect as if given by such Judge at the trial or hearing of such action or other proceeding.

As to questions of fact when there is a jury, see s. 106.For further as to questions of law, see ss. 53,106,127,129, 145,159.

Proceedings in the nature of a scire facias.157. Execution on a judgment shall not issue by or against any person not a party

to a suit, without a plaint or summons upon the judgment, the proceedings in which shall be the same as in ordinary cases.

For forms, see ff. 98 to 101.

158. Where a judgment has been given for or against a person deceased, his executors or administrators may in the same manner sue or be sued upon the judgment.

New trial.159. An application for a new trial, or to set aside proceedings, may be made and

determined on the day of hearing, or any subsequent day of the same sittings, if both parties be present, or such application may be made at the first Court holden next after the expiration of ten clear days from such day of hearing, provided the intending applicant do, seven clear days before the holding of such Court, deliver to the Registrar at his office, and also give to the opposite party by serving the same personally on such party, or by leaving the same at his place of abode or place of business, a notice in writing, signed by himself or his solicitor, stating that such an application is intended to be made at such Court, and setting forth shortly the grounds of such intended application; but such notice shall not operate as a stay of proceedings unless the Judge shall otherwise order ; and if any money paid into Court under any execution or order in the action shall not have been paid out, when such notice in writing shall be given to the Registrar, the Registrar shall retain the same to abide the event of such application, or until the Judge shall otherwiseo rder; and if no such application be made, the money shall, if required, be paid over to the party in whose favour the order was made, unless the Judge shall otherwise order; and if such notice be not given in manner aforesaid, or such application be not made at the Court mentioned in the notice, no application for a new trial or to set aside proceedings shall be subsequently made, unless by leave of the Judge, and on such terms as he shall think fit.

For further as to new trial, see ss. 14,110,132 and notes thereto, 147, and r. 167, and f. 66.As to setting aside proceedings, see also ss. 110, 136.As to payment into and out of court, see also Index, title Payment.

160. The Judge may, in his discretion, make it a condition of granting a new trial, that it shall take place before a jury, in all cases where the former trial might have been had before a jury.

Arbitration.Section 134.

161. The order to refer under Section 134 may be made before, upon, or after the return day.

As to arbitration generally, see ss. 134,135.

162. The party applying to set aside an award shall give the other party seven clear days’ notice of his application.

163. Such application shall be supported by an affidavit, setting out the facts upon which the application is based, and a copy thereof shall be served upon the opposite party with the notice.

Appeal.Section 144.

164. Every notice of appeal shall be given within twelve clear days of the day on which the verdict is given, and the security or deposit directed by Section 144 of The District Courts Act, 1891,” shall be given or made within the like time. In the Brisbane District the time for taking the steps herein referred to shall be within six clear days from the day on which the verdict is given.

165. The notice of appeal shall be in writing, and shall state the grounds on which the party appeals, and shall be signed by the appellant, his barrister, attorney, legal practitioner, or agent; and such notice shall be sent to the Registrar as well as to the successful party, by post or otherwise.

A lithographed form does not satisfy the requirements of the written signature. Reg. v. Fitzroy CoWper, 6 Times L.R. 179. .

166.. When the Court of Appeal has pronounced judgment either party may deposit the original order of the Court of Appeal, or an office copy thereof, with the Registrar of the District Court, and within forty-eight hours from the time of such deposit send a notice thereof to the other party, by post or otherwise.

167. A new trial, if ordered by the Court of Appeal, shall be set down for hearing on such date as the Judge of the District Court shall appoint, and due notice thereof shall be given by the Registrar to the parties.

A* to such order, see «. 147.

14th JUNE, 1892. 101

168. If the order of the Court of Appeal be that judgment shall be entered for eitherparty, then such judgment shall be entered accordingly, and the successful party shall be at liberty to proceed on such judgment as on a judgment of the District Court. *

Warrants of execution.Section 161.

169. All warrants of execution shall bear date on the day on which they are issued, and shall continue in force for twelve calendar months from such date and no longer.

170. Where a defendant has made default in payment of the whole amount awarded by the judgment, or of an instalment thereof, a warrant of execution, without leave of the Court, may issue; and such execution shall be for the whole amount of the judgment and costs then remaining unsatisfied, unless, in the case of instalments, the Judge shall otherwise direct at the time of giving judgment.

As to payment by instalments, see also ss. 133,176, and r. 155.

171. The Registrar shall, on issuing a warrant of execution,. endorse thereon theamount to be levied, distinguishing the amount adjudged to be paid, and the amount of the fee for issuing the warrant; and shall prepare and deliver to the bailiff with the warrant a notice in the form contained in the Schedule ; and the bailiff upon levying shall deliver such notice to the party against whom the execution has issued, or leave the same at the place where the execution is levied. .

172. All goods sold in execution of the process of the Court shall be sold publicly,and for ready money, by the bailiff or his deputy, to the highest bidder, at or as near the place where the same were levied upon as may be convenient for the sale thereof; and the said bailiff or deputy shall affix notice of the said sale upon or near the door of the house or the place where the sale is made, four days at least before the day appointed, for the said sale, which day shall not be earlier than the sixth day from the day of levying upon the goods. .

173. When any goods are levied upon in any place not situated in or part of any town the bailiff shall, if required by the owner, and on payment of the expense of removal by such owner, remove the goods so levied upon to the next town for sale ; and in all cases of any such sale not being conducted in a town, the bailiff shall post a written notice of such intended sale at the Court-house, or some convenient public place, four days previous to such sale taking place.

174. Warrants of execution may be issued concurrently into one or more districts, by leave of the Judge, or in his absence by leave of the Registrar, provided that the costs of more than one warrant shall not be allowed against the execution debtor, unless by order of the Judge.

Execution against land.Section 163.

175. Notices under Section 163 shall be published twice in two newspapers, published and circulating nearest the land in question, not less than two weeks, nor more than four weeks, before the day of sale, unless a Judge otherwise orders.

Suspension of execution.Section 177.

176. Seven days’ notice of an application under Section 177 by a defendant, not being a prisoner, shall be given to the plaintiff.

Interpleader.Section 180.

177. Where any claim is made to, or in respect of, any goods or chattels taken in execution under the process of any District Court, or in respect of the proceeds or value thereof, by any landlord for rent, or by any person not being the party against whom such process has issued, and summonses have been issued on the application of the bailiff, such summonses shall be served in such time and mode as hereinbefore directed for a summons to appear to a plaint, and the ease shall proceed as if the claimant were the plaintiff, and the execution creditor the defendant; and the claimant shall, five clear days before the day on which the summonses are returnable, deliver to the bailiff, or leave at the office of the Registrar of the Court, particulars of any goods or chattels alleged to be the property of the claimant, and the grounds of his claim, or in case of a claim for rent, of the amount thereof, and for what period, and in respect of what premises the same is claimed to be due, and the name, address, and description of the claimant shall be fully set forth in such particular ; and any money paid into the Court under the execution shall be retained by the Registrar until the claim shall have been adjudicated upon; provided that by consent an interpleader claim may be tried, although this Rule has not been complied with.

As to payment into and out of court, see also Index, title Payment.As to practice on interpleader, see also ss. 113, 144, ISO and notes, and ff. 88 to 93.

178. Interpleader summonses shall be issued by the Registrar on the application of the bailiff, without leave of the Court, and without fee.

179. Interpleader summonses shall be issued from the Court of the district in which\ ^the levy was made, and the execution creditor and claimant shali be summoned to such J Court, /

102 RULES OF COURT,

180. Where the claim to any goods or chattels taken in execution, or the proceeds or value thereof, shall be decided against the claimant, the costs of the bailiff allowed by the Judge shall be retained by him out of the amount levied, if the Judge shall so order, but without prejudice to the right of the execution creditor for the sum so retained.

181. Where any claim shall have been made, and shall be now existing, or where any claim shall be made under Section 180 of “ The District Courts Act, 1891,” to or m respect of any goods taken in execution under the jorocess of a District Court, the claimant may deposit with the bailiff either the amount of the value of the goods claimed (such value to be fixed by appraisement in case of dispute), to be by such bailiff paid into Court, to abide the decision of the Judge upon such claim; or the claimant may deposit in Court the sum which the bailiff shall be allowed to charge as costs, for keeping possession of such goods, until such decision can be obtained; and in default of the claimant so doing, the bailiff shall sell such goods as if no such claim had been made, and shall pay into Court the proceeds of such sale, to abide the decision of the Judge.


Attachment of debts.Sections 181 to 190.

182. The summons to the garnishee, directed by Section 182 of the Act, shall be served not less than seven clear days before the return day, except in the Brisbane District, where' it shall be served not less than three clear days before the return day.

183. The times respectively mentioned in the last Rule shall also apply to the service of a summons on a “ third person ” under Section 186, and on “any other person ” under Section 187 of the Act.

Proceedings at Chambers.184. All applications in reference to proceedings in Chambers must be made to the

Registrar of the Court, which may have cognizance of the matter.As to sitting in chambers, see ss. 13, 14, 21, and r. 200.

185. All affidavits and papers upon which it is intended to move must first be filed with the Registrar, and by him placed before the Judge.

186. Every summons returnable at Chambers shall set out in plain and distinct terms the nature of the application to be made, and shall be signed and sealed by the Registrar of the Court in which the action or matter is pending.

187. The grounds of the application shall be stated either upon the face of the summons, or in an affidavit which shall be filed before the issue of the summons.

188. Copies of affidavits intended to be used upon the hearing of any summons before a Judge, must be served upon the opposite party before being used, and in sufficient time to enable the party served to answer, on affidavit, any statement which he intends to contest.

. Securiti/.189. In all cases where a party proposes to give a bond by way of security, he shall

serve, by post or otherwise, on the opposite party and the Registrar, at his office, notice of the names and residences of the proposed sureties, in the form set forth in the Schedule ; and the Registrar shall forthwith give notice to both parties of the day and hour on which he proposes that the bond shall be executed, and shall state in the notice to the obligee that should he have any valid objection to make to the sureties, or either of them, it mus then be made.

Registrar is to exercise proper and vigilant discretion as to the sufficiency of the securities, but is hound to take the party such as he is, as obligor. Young v. Brompton Waterworks Co., 31 L.J. Q.B. 14.

190. The sureties shall make an affidavit of their sufficiency before the Registrar, in the form in the Schedule, unless the opposite party shall dispense with such affidavits.

As to giving security, see Index, title Security.For form of affidavit, see f. 19.

191. The bond shall be executed in the presence of the Registrar, or some other person before whom oaths may be taken : Provided that if it be executed in the presence of the Registrar, it shall not be necessary for it to be attested.

192. Where a party makes a deposit of money in lieu of giving a bond, he shall forthwith give notice to the opposite part}7, by post or otherwise, of such deposit having been made.

As to payment into and out of court, see also Index, title Payment.For form of certificate of deposit, see f. 17.

193. In all cases where the security is by bond, the bond shall be deposited with the Registrar until the cause be finally disposed of.

Notices. m194. Where by these Rules any party is required to give notice according to a form

mentioned in the Schedule, it shall be sufficient if the notice given complies substantially with such form.

195. In all cases where any notice or thing is required by these Rules to be given or done within a period of twenty-four hours, or within a period of forty-eight hours, no part of Sunday, Christmas Day, or Good Friday, or of any day appointed by proclamation for

a public fast, humiliation, or thanksgiving, shall be included in the computation of such period.

No process to be served on these days, r. 62. ‘Warrant of commitment may be issued on Sunday, s. 170.

196. All notices required by these Rules may be given to the attorney, solicitor, barrister, or legal practitioner, in lieu of the party.

Stamps.m 197. All fees of court authorised to be collected or received in the offices of the

registrars of the District Court, as regulated by any Act of Parliament, rule of court, general order, or in any schedule or schedules thereto, or otherwise in that behalf (except bailiff’s fees), shall be collected by the said registrars and their officers, not in money, but by means of stamps, denoting the amount of such fees. And the stamps for denoting the amount of such fees shall be of the respective amounts set forth in the several Acts of Parliament, rules of court, general orders, or schedules thereto now in force relating to or regulating such fees; and in such other Acts, rules of court, and general orders as may, from time to time, be respectively passed, enacted, or made in that behalf.

As to fees of court, see also ss. 32,192 to 194, and n\ 1, 43.As to stamps, see also rr. 19 and 134.

198. Such stamps shall be stamped or affixed at the expense of the parties liable to pay the fees, on or to the vellum, parchment, or paper on which the proceedings in respect whereof such fees are payable are written or printed, or which may be used in reference to such proceedings ; and where any such fees are payable in respect of any matter or thing to be done by any officer of the said Court, or in any office of the said Court, and it has not been customary or necessary to use, in reference to such matter or thing, any written or printed document or paper whereon the stamp could be stamped or affixed, the party or his solicitor requiring such matter or thing to be done shall make application for the same by a short memorandum or note in writing, to be signed by such party or his solicitor in a book to be kept for that purpose in the offices of the said registrars; and a stamp denoting the amount of the fee so payable shall be affixed to such note or memorandum in such book.

199. Where stamps impressed or printed upon adhesive paper are used, the stamp affixed to the document, note, or memorandum shall be of an amount corresponding as nearly as is practicable with the amount of the stamp which such document requires, in order that no greater number of adhesive stamps may be affixed to any document, note, or memorandum than is actually necessary.

Proceedings under Section 21 of “ The Married Women's Property Act, 189p.” /200. When application is made under Section 21 of “ The Married Womerifs Prf>perty

Act, 1890,”* particulars of the question to be submitted to the Judge shall bd> fited, and thereupon a summons shall be issued with the particulars annexed thereto, amdi^all be served upon the opposite party, and the same fee shall be taken as upon the. wMbBjr of a* plaint. Any application under this Rule may be made to the Court or a \L4age in Chambers. V ‘ .

As to proceedings by husband and wife, see ss. 71, 93, and rr. 60, 66, 67, 90, 92, 99. J..

Proceedings under “ The Friendly Societies Act 1876.”201. Every dispute referred to the Court under “ The Friendly Societies Act 1.87G” shall

be referred by plaint and summons in the ordinary way.As to referring disputes to District Court, see 40 Vic. No. 13, s. 19 (P. & W. 2362).See the Great Northern Railway v. Mossop, 25 L.J. C.P. 22.,

202. In proceedings commenced pursuant to the last preceding Rule, the claiming oraggrieved member, or other person, shall bo plaintiff, and the society, either in its own name, or in the name of such persons as are authorised by law to be sued on behalf of the society, shall be defendants. '

203. Particulars of demand shall be filed in all cases of disputes under the said Act, and shall state concisely the nature of the dispute referred, and tne relief or order claimed.

GEO. W. PAUL, GRANVILLE G. MILLER.A. B. NOEL.

District Court,26th February, 1892. *

14th JUNE, 1892. 103

The foregoing Rules, which have been made by the District Court Judgesin pursuance of “ The District Courts Act, 1891,” are hereby approved by us the Judges of the Supreme Court of Queensland.

CHARLES LILLEY, C.J. GEORGE R. HARDING, J.

* PATRICK REAL, J.Supreme Court,

Brisbane, 14th June, 1892. .* 54 Vic. No. 9 (P. & W. 4040).

104 SCHEDULE OF FORMS.

FORMS.1.—Genwal heading and conclusion.

In the District Court of Queensland, No. [of Plaint].Held at

' Between A.B., plaintiff,and

C.D., defendant.Dated this day of 18 .

2.—Memo. to be placed at foot of every summons, notice, judgment, order, warrant, or any other process of the Court.

Hours of attendance at the office of the Registrar [place of office] from till except on Saturdays, when the office will be closed at noon.

3.—Agreement to give jurisdiction to a District Court under Section Gl.Section Gl.

We [the respective attorneys of] A.B. of and C.D. ofdo hereby consent that the District Court of Queensland, held at shallhave power to try an action brought by A.B. against C.D. for ...

We know that this action is not within the jurisdiction of the said District Court without such consent.

Given under our hands this day of 18 .A.B. (or E.F., attorney for A.B.) C.D. (or G.H., attorney foi C.D.)

As to plaints, see also Index, title Plaints.

. 4 .—Plaint.In the District Court of Queensland,

Held atNo.

Between A.B., plaintiff, [address] [description] and

C.D., defendant,

The abovenamed plaintiff sues the abovenamed defendant for money payable by the defendant to the plaintiff for [here state the substance of the action intended to be brought], and the plaintiff claims £

Dated this day of 18 .Plaintiff.

To the defendant.

5.—Plaint-note on entering plaint (ordinary summons).In the District Court of Queensland,

Held atNo. [of Plaint],

Between A.B., plaintiff, and

C.D., defendant. Fees paid. £ s. d.

The above cause was entered this day, and will be tried at onthe day of at o’clock in the noon.

Dated this day of 18 .Registrar of the Court.

N.B.—If you obtain a judgment against the defendant, all moneys ordered to be paid thereunder must' be paid into Court, and must not be received by you.

# Bring this note when you come to the Court or to the office for any purpose connected with this cause. On the day of hearing bring all books, &c., necessary to prove your case.

Money will be paid out of Court only on production of this note, and upon your or your agent’s personal attendance, as the book must be signed by you or your agent, and no officer of the Court is allowed to sign it as your agent.

The defendant may sign a statement at the office of the Registrar, confessing that he owes you the money, or you and he may sign an agreement at the Registrar’s office as to the amount due, and consent to a judgment.

If#the debt or claim exceed twenty pounds, you may have the cause tried by a jury, on giving notice in writing at the Registrar’s office clear days before the hearing,and on payment of two pounds.

Subpoenas for witnesses and for the production of documents may be obtained at theoffice.

SCHEDULE OF FORMS. 105

6.— Undertaking by next friend of infant to be responsible for defendant's costs.In the District Court of Queensland, No. [of Plaint],

Held atBetween A.B., plaintiff,

andC.D., defendant.

I, the undersigned, being the next friend of A.B., who is an infant, and who is desirous of entering a plaint in this Court against C.D., of, &c., hereby undertake to be responsible for the costs of the said C.D., of, &c., in such cause, and that if the said A.B. fail to pay to the said C.D., when and in such manner as the Court shall order, all such costs of such cause as the Court shall direct him to pay to the said C.D., I will forthwith pay the same to the Registrar of the Court.

Dated this day of 18 .(Signed)

7.— Ordinary summons to appear to a plaint.Section 62.

In the District Court of Queensland,Held at

f

No. [of Plaint].

Between A.B., plaintiff, [address][<description] and

C.D., defendant,

* [Issued “ by leave of the Court ” or “ by leave of the Registrar.”]You are hereby summoned to appear at the District Court, to be holden at

on the day of at the hour of in the forenoon, toanswer the plaintiff to a claim, the particulars of which are hereunto annexed.


£ s. d.Debt or claim..........................Costs of plaint..........................Attorney’s costsf ..............Service and mileage..............

Total amount ... £

To the defendant.N.B.—If you owe the money, you may consent to a judgment.

(See back.)[To be endorsed on the summons,]

If you confess the plaintiff’s claim, you should sign and deliver your confession to the Registrar of the Court clear days before the day of hearing; but you maydeliver your confession at any time before the cause is called on, subject to the payment of any further costs which your delay may have caused the plaintiff to incur.

You and the plaintiff may agree as to the amount due, and the mode of payment, and may, before the cause is called on for trial, sign a memorandum of such agreement at the Registrar’s office, or before an attorney.

If you pay the debt and costs, as stated in the summons, clear days beforethe hearing, you will avoid further costs; but you may pay the same at any time before the cause is called on for trial, subject to the payment of any further costs which your delay may have caused the plaintiff to incur.

If you admit a part only of the claim, you may, by paying'into the Registrar’s office the amount so admitted, together with costs fproportionate to the amount you pay in,

clear days before the day of hearing, avoid further costs, unless the plaintiff at the hearing shall prove a claim against you exceeding the sum so paid.

If you intend to defend this action, you must give to the Registrar a written notice of defence . clear days before the return day of this summons.

If [you intend to rely on a set-off, infancy, the Statute of Frauds, coverture, any statute of limitations, or discharge, under any Act for relief of insolvent debtors, or a plea of justification in any action of tort as a defence, or a defence on equitable grounds, you must plead such special defence, and lodge such plea with the Registrar clear days before the day of hearing, and with such plea a statement in writing of the particulars required by the Rules of the Court. You must deliver to the Registrar as many copies of such notice, plea, and statement as there are plaintiffs, and an additional copy for the use of the Court. If your defence be a tender, you must pay into Court before or at the hearing the amount tendered.

If the debt or claim exceed twenty pounds, you may have the cause tried by a jury, on giving notice in writing at the Registrar’s office clear days before the hearing *

* Insert this when necessary.t Insert this when the claimed amount exceeds £10, and an attorney has signed the particulars

of plaintiff’s demand.


and on payment of two pounds. Subpoenas for witnesses, and for the production of documents, will be issued upon application at the office of the Registrar of the Court.

N.B.—Where a plaintiff proposes to charge in the summons that the defendant has had assets and has wasted them, commence with the above form of summons, but naming defendant as executor or administrator of the deceased, and adding—

“And the plaintiff alleges that you, the defendant, have money, goods, and chattels, which were the property of deceased, at the time of his death, and whichcame to your hands as executor [or administrator] of the said deceased, to be administered; and if you have not, that you have withholden and wasted the same, whereby you have become liable to satisfy the plaintiff’s claim and his costs herein out of your own goods.”

8.—Plaint-note on entering plaint (special summons).Section G4.


No. [of Plaint],


C.D., defendant.Fees paid.£ s. d.

The above action was entered this Section 64 of the Act.

day of 18 , under

(Signed) Registrar of the Court.

N.B.—You will be entitled to judgment at the expiration of . cleardays from the date of the service of the summons, unless the defendant gives notice of his intention to defend this action. Should such notice be given you will be informed thereof on inquiry at the office.

Bring this note when you come to the Court or to the office for any purpose connected with this cause.

Money will be paid out of Court only on production of this note, and upon you or your agent’s personal attendance, as the book must be signed by you or your agent.

9.—Special summons.Section 64.

In the District Court of Queensland, No. [of Plaint].Held at * , .Between A.B., plaintiff

[address] [description]

andC.D., defendant

[address] [description].

Take notice that unless within clear days after service upon you of thissummons, you give the Registrar written notice of your intention to defend this action, you will not afterwards be allowed to make any defence to the claim which the plaintiff makes upon you and which is endorsed hereon, but the plaintiff may proceed to judgment and execution.

Dated this day of 18 .

To the defendant.The plaintiff’s solicitor is Mr.

(Signed) Registrar of the Court,

carrying on business at

[Endorsement on special summons.]The plaintiff’s claim is [here state claim]

£ s. d.Claim ... .........................Costs of plaint.........................Attorney’s costs ..............Service and mileage*..............

Total .............. £

If you pay the above amount into the Registrar’s office within cleardays after service upon you of the within summons you will avoid further costs.

If you admit any part of the claim, you may pay that part into Court within clear days after service upon you of the.within summons, togetherwith such costs as the Registrar may direct, and thereby avoid further costs, unless the plaintiff prove a claim against you exceeding the sum so paid. *

* To be fixed by Registrar,


If you give notice of your intention to defend, a summons may be issued requiring you to show cause before a Judge why the plaintiff should not be at liberty to sign final judgment forthwith, for the amount claimed together with interest (if any) and £ for costs and mileage. In default of such summons being issued youwill have notice of the day fixed for the trial.

[Here add endorsement of service either by bailiff, Section 66, or by other person, Section 65.] See Forms 10 and 11.

On annexing this to affidavit, add as follows“ This is the copy (summons) with plaint attached, marked ‘ A,’ referred to in the annexed

affidavit of sworn before me this day of , 18 .Deponent

A short form of endorsement of service is as follows:— “This summons was served by me at

the day of , 18 .“ Endorsed this day of , 18 .

, a Justice of the Peace.”

on the defendant personalty, on

“ Signature “ Address

The summons must show the particulars of the claim, s. 64. Forms of particulars are set out in Schedule II. of the Act.

*9a.—Judgment summons.In the District Court of Queensland, No. [of Plaint],


andC.D., defendant.

Let all parties concerned attend at the Chambers of His Honour the Judge, at the Court-house, , on. the day of18 , at o’clock in the noon, on the hearing of an application on the part of the plaintiff that he may be at liberty to sign judgment in this action forthwith, for the amount indorsed on the summons herein, with interest and costs, including the costs of this application, or for such further or other order as to the judge may seem meet.

Dated this day of A.D. 18

To the abovenamed defendant (and to his solicitors).Registrar.

10.—Statement of service by person other than bailiff to he endorsed on summons orother process.

Section 65.I, A.B. of served the within summons (or other document) on the

within-named defendant by [mode of service] at on theday of 18 .

Endorsed this day of 18 .(Signed) A.B,

For affidavit of service of summons, etc., soe Forms 11 a, 11b, and 11c.As to service, see also Index, title Service.

11.—Deposition of service by bailiff to be endorsed on or attached to summons.Section 66.

I, A.B., bailiff of the District Court of Queensland, held at makeoath and say that I served a true copy of the within summons on the within-named defendant by [mode of service] at on the day of18 . ‘

Sworn at in the Colony of Queensland, this day of18 , before me

(Signed) C.D., J.P.As to service, see also Index, title Service.For affidavit of service of summons, etc., see Forms 11a, 11b, and 11c. *

* This form does not appear in the Schedule to the Rules. It has been framed in pursuance of r. 14.


*11a.—Affidavit of service of ordinary summons.In the District Court of Queensland, No. [of Plaint].

Held at .Between A.B., plaintiff.

. andC.D., defendant.

I, , of , in the Colony of Queensland,being duly sworn, make oath and say, that I did, on the day of >18 , duly serve the defendant with a summons, plaint, and particulars, true copies whereof are hereunto annexed, marked A, at by delivering the same

Signed and sworn by the deponent at , in the said Colony, thisday of 18 , before me

(Signed) E.F., J.P.

Indorse tlie summons or other process thus:—This paper marked “ A the annexed affidavit of , sworn before me thisa.d. 18 .

A.B., deponent.

is the paper referred to in day of

(Signed) E.F., J.P.

*11b.—Affidavit of service of special summons and plaint.In the District Court of Queensland, No. [of Plaint].

Held at tBetween A.B., plaintiff,

and' C.D., defendant.

I, , of , in the Colony of Queensland, ,being duly sworn, make oath and say, that I did, on the day of . ,18 , duly serve the defendant with a special summons and plaint, true copies whereof are hereunto annexed, marked A, at by delivering the same to the saiddefendant personally.

Signed and sworn by the deponent at , in the said Colony, thisday of 18 , before me

(Signed) E.F., J.P.Indorse the summons or other process thus:—This paper marked “ A 5‘ is the paper referred to in

the annexed affidavit of , sworn before me this day of 18 .A.B., deponent.

(Signed) E.F., J.P.

*llc.—Bailiff's affidavit of service of summonses.In the District Court of Queensland,

Held atI, , of , in the Colony of Queensland, bailiff of the District

Court held at make oath and say, that the summonses in the several casesenumerated in the annexed return, and purporting to have been served by me, were served on the several days in the manner set forth in the said return, and the several statements made by me as to the non-service of summonses are true.

Signed and sworn by the deponent at aforesaid, thisday of 18 , before me

(Signed) E.F., J.P.

*11d. —Affidavit as to there being no plea or defence filed.the District Court of Queensland, His Honour .

Held at No. [of Plaint].Between A.B., plaintiff,

andC.D., defendant.

I, , of . , in the Colony of Queensland, ,being duly sworn, make oath and say as follows :—

1. The defendant in this action has been duly served with a summons, a true copy ofwhich is hereto annexed, marked *'1 A,” by delivery of the same to andthe said summons has come to the knowledge of the said defendant.

2. No plea or notice of defence has been duly filed by the said defendant within the time limited by such summons as aforesaid.

Signed and sworn by the deponent at aforesaid thisday of 18 , before me

(Signed) E.F., J.P.

* This form does not appear in the Schedule to the Buies. It has been framed in pursuance of r. 14.


12.—Letter to be sent ivith summons out of district.the District Court of Queensland, No. [of Plaint],


and’ C.D., defendant.

Sir,—I hereby request that you will serve the accompanying summons and plaint immediately upon the defendant, who is stated to reside at , and returnthe enclosed copy of the same to me, with the affidavit of service required by Rule 23. I enclose stamps to the value of , in payment of mileage, service fee, andreturn postage.

Your obedient servant,Registrar of the Court.

To the bailiff of the District Court of holden at

As to service and endorsement of specially endorsed summons, see s. 65.

13.—Notice of service of summons.In the District Court of Queensland, No. [of Plaint].

Held at #Between A.B., plaintiff,

andC.D., defendant.

Take notice that the summons in this action was served on the defendant [mode of service] on the day of 18 .

Dated this day of 18 .To the plaintiff.

E.F., bailiff.As to service, see also Index, title Service.

14.—Notice of non-service of a summons.In the District Court of Queensland, No. [of Plaint].


andC.D., defendant.

Take notice that the summons in this action has not been served for the following reason [state reason], .

Dated this day of 18 .To the plaintiff.

E.F., bailiff.As to service, see also Index, title Service.

15.—Notice of defence,


Section 67.

Take notice that I intend to defend this action. Dated this day of 18

To the Registrar of the Court.

No. [of Plaint],


C.D., defendant.

The defendant.

16.—Plea.In the District Court of Queensland,

Held atNo. [of Plaint],


C.D,, defendant.The defendant says [as the case may be]That he was an infant within the age of twenty-one years when the supposed claim

arose [or the supposed contract or agreement was made] and that he was born, as he believes, at in the of on theday of

The defendant.To the Registrar of the Court.

That she is now [or, that she supposed contract or agreement was And that she was married to him at On the

in the

was at the time the supposed claim arose, or, the made] the wife of of

in the of *day of and that he resides atday of

of


That the claim for which he is summoned is barred by a statute of limitations.That he duly received a certificate under an Act for the relief of insolvent debtors,

on the day of which was duly allowed onthe day of by the Supreme Court of Queensland, holdenat Brisbane, in the Colony aforesaid.

That he intends to rely upon the Statute of Frauds. .That he intends to rely upon the following facts by way of plea of justification.That he intends to rely on the statement following as a defence on equitable grounds

[here state facts constituting the equitable defence].Alter the ending.

17.—Certificate of deposit.In the District Court of Queensland,

Held atNo. [of Plaint].


C.D., defendant.I do hereby certify that the plaintiff [or defendant] has paid into my hands the sum

of «£ for [here state proceeding which rendered deposit necessary].Dated this day of 18 .

(Signed) Registrar of the Court. As to where deposit is necessary, see ss. 114,144, and rr. 8,192.

18.—Notice of sureties.In the District Court of Queensland, No. [of Plaint],

Held at .. Between A.B., plaintiff,

andC.D., defendant.

Take notice that the sureties whom I propose as my security in the above cause [here state the proceeding which has rendered the sureties necessary] are [here state the full names and additions of the sureties, whether housekeepers or freeholders, and their residences for the last six months therein, mentioning the county or city, places, streets, and numbers, if any].

Dated this day of 18 .To the

As to giving security, see Index, title Security.

19.—Affidavit of justification.In the District Court of Queensland, No. [of Plaint],


andC.D., defendant.

I of one of the sureties for the defendant, make oathand say, that I am a housekeeper [or freeholder, as the case may be] residing [describing particularly the county or city, the street, or place, and the number of the house, if any] that I am worth property to the amount of <£ [the amount required by the practice of the Court] over and above what will pay my just debts [if security in any other action or for any other purpose, add, and every other sum for which I am now security], that I am not bail or security in any other action or proceeding, or for any other person [or if security in any other action or actions, add, except for C.D., at the suit of E.F., in the Court of in the sum of £ for G-.H., at the suit of J.K., in the Court of in the sumof £ ] [specifying the several actions, with the Courts in which they are brouc/ht, andthe sums in which he has become bound] that this my property, to the amount of the said sum of £ [and if security in any other action, Ac., over and above all other sums for which I am now security as aforesaid] consists of [here specify the nature and value of the property in respect of which [the deponent proposes to become bondsman, as follows:—Stock-in-trade in my business of carried on by me at ofthe value of <£ of good book debts owing to me to the amount of £ offurniture in my house at of the value of £ of a freehold [or leasehold] farm of the value of £ situate at occupied byor, of a dwelling-house of the value of situate at occupied by[or of other property, particularising each description of property, with the value thereof] and that I have for the last six months resided at [describing the place of such residence, or if he has had more than one residence during that period, state it in the same manner as above directed].

Sworn at, &c.As to giving security, see Index, title Security.As to such affidavit, see r. 190.

SCHEDULE OE EORMS. Ill

20.—Notice of payment into Court by defendant to plaintiff.Section 72.

In the District Court of Queensland, No. [0/ Plaint].Held at


C.D., defendant.To the plaintiff.

Take notice that I have this day paid into Court the sum of £ as full satisfaction for your demand together with £ for your costs up to the time of payment.

Dated this day of 18 .(Signed) C.D., defendant.

As to payment into and out of court, sec also Index, title Payment.

21.—Admission of claim or part of claim under Section 73 of the Act. Section 73.


(A.)No. [of Plaint].


C.D., defendant.I, the defendant, do hereby confess and admit that the sum of £ , the amount

claimed [or the sum of £ , being part of the amount claimed by the plaintiff in thisaction] is due to him from me.

Dated this day of 18 .Defendant.

Signed in the presence ofThis paper marked “A” is the statement referred to in the annexed affidavit.

22.—Affidavit of signature to admission, Section 73 of the Act.In the District Court of Queensland, No. [of Plaint].

Held at .Between A.B., plaintiff,

andC.D., defendant.

I of an attorney of the Supreme Court of Queensland,make oath and say, that I was present on the day of one thousandeight hundred and and did see the abovenamed defendant sign the statementhereunto annexed marked with the letter A, and that the name set to the said statement is in the handwriting of the defendant, and that the name set to the said statement as the witness attesting the same is in my handwriting.

Sworn at in the Colony of Queensland, this day ofone thousand eight hundred and before me

23.—Notice to plaintiff of admission of claim under Section 73 of the Act.In the District Court of Queensland, No. [of Plaint],

Held at ,Between A.B., plaintiff,

andC.D., defendant.

I do hereby give you notice, that the defendant has filed a statement confessing and admitting the amount claimed by you, and that it will not be necessary for you to prove the claim on the day of hearing.


To the plaintiff.

24.—Notice to plaintiff under Section 73 of the Act of admission of part of claim. yIn the District Court of Queensland. No. [of Plaint],

• Between A.B., plaintiff,and

C.D., defendant.I do hereby give you notice, that the defendant has filed a statement, confessing and

admitting £ part of the amount claimed by you, and that it will not be necessaryfor you to prove that part of your claim which the defendant has so admitted, on the day* of hearing. If, however, you do not consent to accept the sum so admitted in satisfaction of your demand, you must be prepared to prove the excess.


To the plaintiff.


25.--Admission under Section 74 of the Act.Section 74.


No. [of Plaint].


C.D., defendant.We, the plaintiff and defendant, do hereby agree that the amount of the debt or

demand due from the defendant to the plain tiff is £ , and that the same, with£ * for the plaintiff’s costs, and £ the Court fees, shall be paid to theRegistrar of the Court at his office, in manner following, viz.

Dated this day of

Signed in the presence of

18—) Signatures of

V plaintiff — j and defendant.

This paper marked “A” is the statement referred to in the annexed affidavit.

26.—Affidavit of signature under Section 74 of the Act.In the District Court of Queensland,



C.D., defendant.I of an attorney of the Supreme Court of Queensland,

make oath and say, that I was present on the day of onethousand eight hundred and and did see the plaintiff and defendantrespectively sign the statement hereunto annexed, marked with the letter A, and that the name set to the said statement is in the handwriting of the plaintiff, andthat the name set to the said statement is in the handwriting of thedefendant, and that the name set to the said statement as the witnessattesting the same, is in my handwriting.

Sworn at in the Colony of Queensland, this day ofone thousand eight hundred and , before me

27.—Affidavit of debt. Section 75.

In the District Court of Queensland, No. [of Plaint1.Held at “ .


C.D., defendant.I of in the Colony of Queensland

being duly sworn make oath and say : —1. I am the abovenamed plaintiff.2. The abovenamed defendant was at the commencement of this action and still is

justly and truly indebted to me in the sum of poundsshillings and pence.

3. Particulars of the debt are hereunto annexed marked with the letter A.# Signed and sworn by the deponent at in

this day of 18 , before me

This affidavit is filed on behalf of the plaintiff.

the Colony of Queensland,

A Justice of the Peace.

* 28. —Judgment for plaintiff.' % Section 75.

In the District Court of Queensland, No. [of Plaint].Held at Judgment No.


C.D., defendant.The defendant not having filed a notice of defence herein, it is this day adjudged that

the plaintiff recover against the said defendant the sum of £ for debt, and the sumof £ for costs.



29.—Affidavit to accompany judgment summons under Section 77.Section 77.


Between A.B., plaintiff, * and

O.D., defendant.I, A.B., the abovenamed plaintiff [or (see Section 77) of ]

make oath and say as follows :—1. This action was commenced on the day of 18 ,

[date of summons] by a summons specially endorsed with my [the plaintiff’s] claim herein, in pursuance of the provisions of Section 64 of “ The District Courts Act, 1891.”

2. My [or the plaintiff’s] claim so endorsed is for [here state the claim as in theendorsement].

3. The defendant gave notice of defence in this action on the dayof 18 .

4. The defendant at the commencement of this action was, and still is, truly andjustly indebted to me [or the plaintiff] in £ in respect of the mattersin the said endorsement mentioned.

5. [Here state shortly the facts on which the plaintiff’s claim is founded, in one or moreparagraphs.]

6. In nay belief there is no defence to this action, and the notice of defence has been ^ given for purposes of delay only.7. All the facts and circumstances above deposed to are within my own knowledge

save such as are deposed to from information only, and my means of knowledge and sources of information appear on the face of this my affidavit.

Signed and sworn, &c.This affidavit is filed on behalf of the plaintiff.

30.—Order for final judgment.Section 77.



C.D., defendai)Upon hearing the solicitor for the abovenamed plaintiff and the solicitor fo^/thd

abovenamed defendant, and upon reading the affidavit of filed herein fs^Jcis ordered, that the plaintiff be at liberty to sign final judgment for £ the anitopttpendorsed on the summons herein, together with costs, including the costs of this applix tion. •

Dated this day of 18 . Xv"'* Kegistrar.^^

• 31.—Judgment under Section 77.In the District Court of Queensland, No [of Plaint],

Held at Judgment No.Between A.B., plaintiff,

andC.D., defendant.

The defendant having appeared to the summons herein, and the plaintiff having by the order of His Honour dated the day of18 , obtained leave to sign judgment for £ the amount endorsed on the summonsherein, together with interest and costs : It is this day adjudged, that the plaintiff recover against the defendant £ and costs.

Dated this day of 18 .Registrar.

32.—Judgment against an executor who has wasted assets.Section 96.



C.D., executor[or administrator] of deceased, defendant.

Upon hearing this cause at a Court this day holden, it is adjudged that the plaintiff do recover against the defendant the sum of £ for and £for costs ; and it is ordered that the defendant do pay the same to the Registrar of this Court, on or before the day of ,

I


It is also adjudged that the defendant being the executor [or administrator] of the said deceased, has made away with, wasted, and put to his own use divers goods and chattels [or moneys, as the case may be] to the amount of the said sum, which were the property of the said deceased, and which came to the hands of the defendant as executor [or administrator] as aforesaid, to be administered :

' Wherefore, it is ordered, that if the defendant shall make default in the payment of the said sum, the same shall be levied by distress and sale of the goods and chattels which were of the said deceased, and which came to the bands of the defendant as executor [or administrator], if the defendant has so much thereof in his hands to be administered; and if he has not, then that the said sums shall be levied of the proper goods and chattels of the defendant.

Given under the seal of the Court, thisBy the Court,

day of 18 .

Registrar of the Court.

33.—Judgment against an executor who has denied his representative character.In the District Court of Queensland, No. [of Plaint].


andC.D., executor

[or administrator] of deceased, defendant.Upon hearing this cause at a Court this day holden, it is adjudged that the plaintiff

do recover against the defendant the sum of £ for and £for costs ; and it is ordered that the defendant do pay the same to the Registrar of this Court, on or before the day of 18 .

And the defendant having denied that he is executor [or administrator] of the said deceased, it appears to the Court that he is executor [or administrator] of

the said deceased:Wherefore, it is ordered, that if the defendant shall make default in the payment of

the said sums, the same shall be levied by distress and sale of the goods and chattels which were of the said deceased, and which came to the hands of the defendant as executor [or administrator], if the defendant has so much thereof in his hands to be administered; and if he has not, then that the said sums shall be levied of the proper goods and chattels of the defendant.

Given under the seal of the Court, this day of 18 .By the Court,


34.—Judgment against an executor who has pleaded a release of the claim to himself.In the District Court of Queensland, No. [of Plaint].


andC.D., executor

[or administrator] of deceased, defendant.Upon hearing this cause at a Court this day holden, it is adjudged that the plaintiff

do recover against the defendant the sum of £ for and £ . forcosts ; and it is ordered that the defendant do pay the same to the Registrar of this Court on or before the day of 18 . . #

And the defendant having alleged that the plaintiff’s claim has been released to him, it appears to the Court that he has failed to prove such release :

Wherefore, it is ordered, that if the defendant shall make default in the payment of the said sums, the same shall be levied by distress and sale of the goods and chattels which were of the said deceased, and which came to the hands of the defendant as executor [or administrator], if the defendant has so much thereof in his hands to be administered ; and if he has not, then that the said sums shall be levied of the proper goods and chattels of the defendant. »



3o.—Judgment against executor or administrator who admits his representative character anddenies the demand.

In the District Court of Queensland, No. [of Plaint].Held at . Judgment No.



Upon hearing this cause at a Court this day holden, it is adjudged that the plaintiff do recover against the defendant the sum of £ for ^ and£ for costs ; and it is ordered that the defendant do pay the same to the Registrarof this Court on or before the day of 18 .

SCHEDULE OF FORMS, 115

And the defendant having admitted his representative character, but denied the plaintiff’s demand, and the plaintiff having proved the same, it is further ordered that if the defendant shall make default in payment of the said sums, the same shall be levied as follows :—The sum of £ [the debt or damage and cosfo*] of the goods and chattels which were of the said deceased, and which came to the hands of the defendant as executor [or administrator], if the defendant has so much thereof in his hands to be administered ; and if he has not, then that the sum of £ {the cos£s] be levied upon the proper goods of the defendant.



36.—Judgment against executor or administrator inhere he admits his representative character, but denies the demand, and alleges total or partial administration oj assets, and the plaintiff proves his demand, and the defendant proves administration.


Between A.B., plaintiff, • and

C.B., executor[or administrator] of deceased, defendant.

Upon hearing this cause at a Court this day holden, it is adjudged that the plaintiff do recover against the defendant the sum of £ for and £for costs; and it is ordered that the defendant do pay the same to the Registrar of this Court, on or before the day of 18 .

# And the defendant having admitted his representative character, but denied the plaintiff’s demand, and having also alleged a total [or partial] administration of the goods of the said deceased, which came to the hands of the defendant as executor [or administrator] to be administered, it appears to the Court that the plaintiff has proved to the Court his demand, and also that the defendant has proved the administration alleged :

. Wherefore, it is ordered, that in default of such payment of the sum of ,being the costs incurred by the plaintiff in proving his demand, shall be levied on the goods and chattels which were of the said deceased, and which came to the hands of the defendant as executor [or administrator], if the defendant has so much thereof in his hands; and if he has not, then that it shall be levied of the proper goods and chattels of the defendant, and as to the sum of £ [the plaintiffs demand] that it be levied of the goods and chattels of the said deceased, which hereafter shall come to the hands of the defendant, as executor [or administrator] as aforesaid, to be administered.

And it is further ordered, that the plaintiff do pay to the Registrar of the Court, on or before the day of 18 , the sum of £ being thecosts incurred by the defendant in proving the administration alleged.


Registrar of the Court.N.B.—If the defendant is shown to have some assets the judgment must be for that

amount, de bonis testatoris, and for the residue, quando accidcrint. .

37.—Judgment against executor or administrator where the defendant admits his representative character, but denies the demand, and alleges total or partial administration of assets, and the plaintif proves his demand, and the defendant does not prove the administration.




Upon hearing this cause at a Court this day holden, it is adjudged that the plaintiff do recover against the defendant the sum of £ for and £for costs ; and it is ordered that the defendant do pay the same to the Registrar of this Court, on or before the day of 18 .

# And the defendant having admitted his representative character, but denied the plaintiff’s demand, and having also alleged a total [or partial] administration of the goods of the said deceased, which came to the hands of the defendant as executor [or administrator], to be administered, it appears to the Court that the plaintiff has proved to the Court his demand, and also that the defendant has not proved the administration alleged. And it is further ordered, that if the defendant shall make default in payment of the said sum, the same shall be levied as follows :—The sum of £ [debt and costej of the goods and chattels which were of the said deceased, and which came to the defendant as aforesaid, if the defendant has so much thereof in his hands to be administered ; and if he has not, then that the residue of the sum of £ [debt] be levied of the goods and chattels of the said deceased, which hereafter shall come to the hands of the defendant as executor [or administrator] as aforesaid to be administered ; and that the sum of £ [the coste] be levied upon the proper goods of the defendant.

Given under the seal of the Court, this day of IB1 .By the Court,



38.—Judgment against an executor or administrator who admits his representative character, and the plaintiffs demand, but alleges a total or partial administration of assets, and proves the administration.




Upon hearing this cause at a Court this day holden, it is adjudged that the plaintiff do recover against the defendant the sum of £ for , and it isordered, that the defendant do pay the same to the Registrar of this Court on or before the day of 18 .

And the defendant having admitted his representative character, and also the plaintiff’s demand, and having alleged a total [or partial] administration of the goods of the said deceased, which came to the hands of the defendant, as executor [or administrator], to be administered; it appears to the Court that the defendant has proved to the Court the administration alleged : #

* Wherefore, it is ordered, that in default of such payment, the said sum of £ shall be levied of the goods and chattels of the said deceased, which hereafter shall come to the hands of the defendant, as executor [or administrator] as aforesaid, to be administered : Wherefore it is ordered, that in default of such payment the said sum of £ shall be levied of the goods and chattels of the said deceased which hereafter shall come to the hands of the defendant, as executor [or administrator] as aforesaid, to be administered. #

And it is further ordered that the plaintiff do pay to the Registrar of this Court, on or before the day of , 18 , the sum of £ , being thecosts incurred by the defendant in proving the administration alleged.



3‘Judgment against an executor or administrator who admits his representative character and the plaintiff’s demand, but alleges a total or partial administration of assets, and does not prove the administration.

In the District Court of Queensland, No. [of Plaint],Held at Judgment No.


' C.D., executor[or administrator] of deceased, defendant.

Upon hearing this cause at a Court this day holden, it is adjudged that the plaintiff do recover against the defendant the sum of £ for . and it is orderedthat the defendant do x>ay the same to the Registrar of this Court, at onor before the day of 18 .

And the defendant having admitted his representative character, and also the plaintiff’s demand, and having alleged a total [or partial] administration of the goods of the said deceased, which came to the hands of the defendant as executor [or administrator] to be administered, it appears to the Court that the defendant has not proved to the Court the administration alleged. .

And it is further ordered, that if the defendant shall make default in payment of the said sum, the same shall be levied as follows :—The sum of <£ [debt and co$£s] of the goods and chattels which were of the said deceased, and which came to the defendant as aforesaid, if the defendant has so much thereof in his hands to be administered, and if he has not, then that the residue of the sum of <£ [debt] be levied of the goods and chattels of the said deceased, which hereafter shall come to the hands of the defendant, as executor [or administrator] as aforesaid, to be administered; and that the sum of <£ [the coste] be levied upon the proper goods of the defendant.



40.—Summons to an executor of plaintiff’s intention to apply to the Court where assets have come to defendant’s hand since judgment.


No. [of Plaint],

Between A.B., plaintiff, [address]

’ [description]and

C.D., executor[or administrator] of deceased, defendant,

. [address][description].

The plaintiff having learnt that property of deceased has come to your [the defendant’s] hands, as executor [or administrator], since the judgment herein, to be administered (and that you have withholden and wasted the same), intends to apply to


the Court to be holden on the day of 18 , at the hourof in the forenoon, for an order that the debt [or damages] and costs shall belevied of the goods and chattels of the said deceased, if you have so much thereof to be administered (and that if you have not, then that it shall be levied of your proper goods and chattels), and that the costs be levied of your proper goods and chattels.

You are, therefore, hereby summoned to appear at the said Court, at the time and place aforesaid, to answer touching the matters aforesaid.


To [the executor or administrator of the deceased].Registrar of the Court.

41.—Warrant of execution against the goods of a testator.In the District Court of Queensland, No. [of Plaint].

Held at No. [of Warrant].Between A.B., plaintiff,

andC.D., executor,

[or administrator] of deceased, defendant.Whereas, at a Court holden at on the day of .

18 , the plaintiff obtained a judgment against the defendant, as executor [or administrator] of the said deceased, for the sum of fordue and owing to the plaintiff by the said deceased in his lifetime, and the sum of

for costs of suit; and thereupon it was ordered by the Court that the defendant should pay the same to the Registrar of the Court, on or before the day of 18 (or by instalments of for everydays); and whereas default has been made in payment according to the said order; these are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels which were the property of the said deceased in his lifetime, in the hands of the defendant to be administered, wheresoever they may be found within the district of the Court (excepting the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of <£10), the sum stated at the foot of this warrant, being the amount due to the plaintiff under the said order, including the costs of this execution; and also to seize and take any money, or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialities or securities for money, which were the property of the said deceased in his lifetime, which may there be found, or such part, or so much thereof, as may be sufficient to satisfy this execution, and the costs of making and executing the same, if the defendant hath so much thereof in his hands to be administeied ; and if the defendant hath not so much thereof in his hands to be administered, then that you make and levy of the proper goods and chattels, money, or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialities, or securities for money, of the defendant the sum of for the costs and charges first above mentioned, and the costs of this execution and of levying the same; and to pay what you shall have so levied to the Registrar of this Court, and make return of what you have done under th»s warrant immediately upon the execution thereof.



To the bailiff of the said Court, and other the assistant bailiffs thereof.£ s. d.

Debt or damage adjudged .........................................................Costs .............................................................................................Execution Costs ... ...........................................................Mileage ..................................................................................

Total amount to be levied ......................... £

Notice.—The goods and chattels are not to be solcl until after the end of five days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the defendant.

Application was made to the Registrar for this warrant at minutes past thehour of in the noon, of the day of 18 .

42.—Judgment against an executor on a devastavit.In the District Court of Queensland, No. [of Plaint\.


andC.D., executor

[or administrator] of deceased, defendant.Upon hearing the plaintiff’s application in this cause, at a Court this day holden, it

is adjudged that property of deceased has come to the hands of thedefendant, as his executor [or administrator] since the judgment recovered herein to be


administered, and (that the defendant has wasted the same property, whereby the judgment recovered herein remains unsatisfied.

It is therefore ordered, that the defendant do pay the sum of <£ recovered by[or remaining due upon] the judgment of, together with the sum of £ the costs ofthis order, to the Registrar of this Court on or before [<zs the case may he].

And it is further adjudged, that, if the defendant make default in payment thereof, an execution shall issue to make and levy the abovementioned sums of the goods and chattels of the said deceased, if the defendant has so much thereof in his hands to be administered; and if he has not, then to be made and levied of the proper goods and chattels of the defendant.



In

be

43.—Order for changing the venue under Section 101 of the Act.Section 101. #

the District Court of Queensland, No. [of Plaint].Held at


C.D., defendantIt is ordered that the venue in the above cause be changed, and that the cause

sent for hearing to the District Court of holden atGiven under the seal of the Court this day of 18 .

By the Court,

To the plaintiff and defendant.As to venue, see also ss. 52, 92,101.


44.—Notice by Court to which an action has been sent of the day of hearing.Section 101. .

In the District Court of Queensland, No. [of Plaint],Held at


C.D., defendant.Take notice that the above cause has been sent for hearing to this Court, and that it is

appointed to be heard in this Court on the day of 18 , atthe hour of in the noon.

Given under the seal of the Court this day of 18 .

To the plaintiff and defendant.As to venue, see also ss. 52, 92, 101.


45.—Subpoena to witness.Section 102.



C.D., defendant.You are hereby required to attend at [the Court House in ] on

the day of 18 , at the hour of in the forenoon, to give evidence in the above cause on behalf of the [plaintiff or defendant, as the case may be], and then and there to have and produce [stqte any particular documents required], and all other books, papers, writings, and other documents relating to the said action which may be in your custody, possession, or power.

In default of your attendance you will be liable to a penalty of fifty pounds, under Section 103 of the Act.

Dated this day of 18 .' Registrar of the Court.

As to subpoena, see Index, title Evidence.

*45a.—Prcecipe for subpoena.In the District Court of Queensland,


Seal a Writ to toon the

Dated this

of Subpoena + of

, ofday of

day of


C.D., defendant.on behalf of the directed

in the Colony of Queensland, ,, returnable at the District Court at

18 .18 .

Solicitor for .

* This form does not appear in the Schedule to the Rules. It has been framed in pursuance of r. 14. t Ad testificandum (or, duces tecum).


46.—Order fining a roitncssfor non-attendance.Section 103.


No. [of Plaint].


C.D., defendant.# Whereas of was duly summoned to appear as a witnessin this cause, at a Court this day holden, and at the time of being so summoned, payment [or a tender of payment] of his expenses was made according to the scale of allowance settled by the rules of practice of the District Courts; and whereas he has neglected, without sufficient cause shown, to appear at the Court [or to produce; here describe what he was required by summons to produce]; or Whereas being this daypresent in Court, and being required by the Court to give evidence in this cause, refused to be sworn, without alleging as a ground for such refusal that he had any conscientious scruples with respect to taking an oath [or after being duly sworn refused to give evidence], [or to produce; here describe what he ivas required and bound to produce] : It is hereby ordered that the said shall forthwith [or on the day of ]pay to the Registrar of this Court a fine of £ for such neglect [or refusal].

Given under the seal of this Court, this day of 18 .By the Court,


47.—Warrant of execution against the lands and goods of a witness for a fine.Section 103.


No. [of Warrant].


C.D., defendant.Whereas was duly summoned to appear as a witness in this cause, at

a Court holden at on the day of and atthe time of being so summoned, payment [or a tender of payment] of his expenses was made, according to the scale of allowance settled by the rules of practice of the District Courts; and whereas he neglected, without sufficient cause shown, to appear at such Court [or to produce; here describe what he was required: and bound to produce]; or Whereas

being present in Court on the day of 18 ,and being required by the Court to give evidence, refused to be sworn without alleging, as a ground for such refusal, that he had any conscientious scruples with respect to taking an oath [or after being duly sworn, refused to give evidence, or to produce, &c.] it was thereupon ordered by the Court that he should forthwith [or on the dayof ] pay to the Registrar of this Court a fine of £ for such neglect[or refusal]; and whereas the said sum has not been paid according to the said order, and the Judge of this Court has ordered it to be levied as hereinafter mentioned : These are therefore to require and order you forthwith to make and levy by distress and sale of the lands, goods,. and chattels of the said wheresoever they may be found,within the district of this Court (excepting the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of ^810), the sum stated at the foot of this warrant, being the amount of such fine and the costs of this execution ; and also to seize and take any money or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialities, or securities for money belonging to him, which may.there be found, or such part or so much thereof as maybe sufficient to satisfy this execution, and the costs of making and executing the same; and to pay what you shall have so levied to the Registrar of this Court, and make return of what you have done under this warrant immediately upon the execution thereof.


Registrar of the Court.To the bailiff of the said Court and others the assistant bailiffs thereof.

Amount of fine£ s. d.

Notice.—The goods and chattels are not to be sold until after the end of five clear days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the said witness.

Application was made to the Registrar for this warrant at the hour of in the noon of the day of

minutes past 18 .


48.—Notice to be sent with all warrants of execution against the lands and goods.Section 103.

In the District Court of Queensland, No. [of Warrant],Held at


C.D., defendant.Take notice that the warrant of execution against your lands and goods on the judg

ment obtained against you in this action is for the following amount:—# £ s. d.

Amount for which judgment was obtained ...Costs .............. .....................................Mileage ...........................................................Execution Costs................................................

Total amount to be levied ... £

The costs of keeping possession of such of your goods as may be seized is six shillings each day.

If you pay the amount to be levied within an hour of the entry of the bailiff, you will not be required to pay to him any further sum than the amount directed to be levied, as stated above.

Your goods are not to be sold until after the end of five days next following the day on which they were seized, unless they be of a perishable nature, or at your request.

Dated this day of 18 ,


49.—Warrant to arrest witness under Section 104 of the Act. Section 104.


No. [of Plaint],


C.D., defendant.Whereas . of was duly summoned to appear as a witness

in this action at a Court this day held, and at the time of being so summoned, payment [or a tender of payment] of his expenses was made according to the scale of allowance settled by the rules of practice of the District Court; and whereas he has neglected, without sufficient cause shown, to appear at the said Court [or to produce; here describe what he was required by summons to moduce]: These are therefore to require and order you forthwith to apprehend and take the said and to bring and have him at o’clockon the day of 18 , at before me, to testifywhat he knows concerning the matters in dispute in this action.

Given under the seal of the Court, this day of 18 .

(Signed) Judge of the Court.To the bailiffs and others the officers of the said Court, and all peace officers within the

jurisdiction of the said Court.

50.—Affidavit in support of application under Section 105 of the Act.Section 105.


[No. of Plaint],


C.D., defendant.I, A.B., of , in the Colony of Queensland, make oath and say as

follows:—1. This action was commenced on the day of 18 .2. The place for trial of this action is .3. E.F. is a material and necessary witness for the plaintiff [or defendant] in this

action, and I am advised and verily believe that I cannot proceed safely to trial of it without his evidence.

4. The said E.F. is at present residing at in the Colony of[or as the case may be],

5. This application is made in good faith, and for the purpose of procuring theevidence of the said E.F., and not for delay.

[If the application is made by defendant insert—6. I have a good defence to this action, as I am advised and verily believe ].7. All the facts, &c. [as in affidavit under Section 77].

Taken and sworn, &c.This affidavit is filed on behalf of the

SCHEDULE OF FORMS 121

51.—Judgment in detinue.Section 107. .



C.D., defendant.Upon hearing this cause, at a Court liolden this day, it is adjudged that the plaintiff

do recover against the defendant the sum of £ the same being now this dayassessed by this Court to be the value of the following chattels of the plaintiff wrongfully detained by the defendant, that is to say [here enumerate the chattels which the Court decides to have been detained] and the further sum of £ for damages for the detention of thesaid chattels, and the sum of £ for costs ; and it is ordered that the defendantdo pay the said several sums to the Registrar of the Court, on the day of

18 .Acknowledg- * And it is further ordered, that if the defendant shall on or before

ment of payment the said last-mentioned day pay to the Registrar the said sums respec- in o court. tively above ordered to be paid for damages and costs, and also return

£ d. to the plaintiff the said chattels, and if the plaintiff shall then acceptthe same, then satisfaction of this judgment shall be entered up by the Registrar on the production of* him of a receipt for the said chattels

, signed by the plaintiff, or his attorney, or agent, into Court.Given under the seal of the Court, this day of 18 .

By the Court,Registrar of the Court.

* Sic; semble “to.”As to judgment in detinue, see r. 154.For form of warrant of execution in detinue, see f. 82.

f5lA.—Judgment for defendant.< [After trial.) _

In the District Court of Queensland, No. [of Plaint]|Held at No. [of Judgim

Between A.B., plaintn and *

C.D., defendaiiThis action having on the day of IS , been tried;'

before His Honour Judge and.a special jury at , and thejury having found and the Judge having ordered that judgment beentered for the defendant with costs of suit: Therefore it is adjudged that the plaintiff recover nothing against the defendant, and that the defendant recover against the plaintiff, his costs of defence to be taxed.


f5lB.— Judgment of nonsuit.In the District Court of Queensland, No. [of Plaint],

Held at No. [of Judgment],Between A.B., plaintiff,

andC.D., defendant.

This action having on the day of 18 , been tried beforeHis Honour Judge and a special jury at , and the Judgehaving ordered that the plaintiff be nonsuited : It is this day adjudged that the plaintiff recover nothing against the defendant, and that the defendant recover against the plaintiff, his costs of defence to be taxed.


52.—Judgment for plaintiff.Section 107. 4

In the District Court of Queensland, No. [of Plaint],Held at Judgment No.


C.D., defendant.It is this day adjudged, that the plaintiff do recover against the defen

dant the sum of £ , for debt [or damages], and £ for costs,amounting together to the sum of £

And it is ordered, that the defendant do pay the same to the Registrar of the Court, on the day of [or, by instalmentsof for every days; the first instalment to be paidon the day of 18 .]

day of 18 .By the Court,


Acknowledgment of payment into

Court.£ s. d.

Dated this

* Tlii9 paragraph is not to be added unless it be part of the order of the Judge,f This form does not appear in the Schedule to the Rules. has been framed in pursuance of r. 14.


53.—Judgment against defendant for payment of costs.' Section 107.

In the District Court of Queensland, No. [of Plaint).Held at Judgment No.


C.D., defendant.Upon hearing the plaintiff’s application at a Court holden this day, it is adjudged

that the plaintiff do recover against the defendant the sum of £ for costs incurredby the plaintiff in preparing for trial [or attending Court] before the notice of payment of money into Court was received by him, such money having been so paid in less than . clear days before the return day of the summons.

And it is ordered that the defendant do pay the same to the Registrar of this Court on the day of 18 .



54.—Judgment for defendant, or of nonsuit.Section 109.

In the District Court of Queensland, No. [of Plaint).Held at Judgment No.i


C.D., defendant.Upon hearing this cause at a Court holden this day, it is adjudged that judgment be

entered for the defendant [or that judgment of nonsuit be entered], and that the plaintiff do pay the sum of £ for the defendant’s costs ; and it is ordered that the plaintiffdo pay the same to the Registrar of this Court on the day of 18 .


As to i o isuit, see ss. 109, 111, 132, and r. 91.Registrar of the Court.

55.—Order for costs to defendant where plaintiff does not appear.In the District Court of Queensland, No. [of Plaint).


andC.D. defendant.

Whereas the plaintiff has not appeared, either by himself, his barrister, attorney, or agent, at the Court holden this day, being the day appointed for the trial of this cause, and the defendant has appeared in person [or by his barrister, attorney, or agent] and has not admitted the demand : It is awarded that the plaintiff do pay the sum of <£ .for the defendant’s costs, and it is ordered that the plaintiff do pay the same to the Registrar of this Court on the day of 18 .


As to proceedirgs when plaintiff does not appear, see s. 109.Registrar of the Court.

56.—Order to adjourn proceedings.Section 112.

In the District Court of Queensland, No. [of Plaint).Held at ' J‘


. # C.D., defendant.It is ordered that the trial of this action be adjourned until the day

of 18 , at o’clock in the forenoon.Given under the seal of the Court, this day of 18 .

By the Court,

Registrar of the Court.As to various cases of adjournment, see Index, title Adjournment.


57.—Order appointing guardian named by infant defendant.Section 112.

In the District Court of Queensland, No. [of Plaint.]Held at ■


C.D., defendant.Whereas now, at the hearing of this cause, the defendant, being an infant, appears

here in Court, and names of to act as his guardian, who nowassents to act as such guardian : I do therefore hereby appoint him to be guardian of the defendant in this cause.


Judge of the Court.For proceedings by and against infants, see ss. 71, 97, 195, and rr. 57, 66, 67, 124, and ff. 6, 58.

58.—Order appointing guardian of infant defendant where defendant does not name a • guardian.

Section 112.In the District Court of Queensland, No. [of Plaint].


andC.D., defendant.

Whereas now, at the hearing of this cause, the defendant, being an infant, appears here in Court, and does not name a guardian : I do hereby appoint to beguardian of the defendant in this cause.


Judge of the Court.For proceedings by and against infants, see ss. 71, 97,195, and rr. 57, 66, 67, 124, and ff. 6, 57.

59.—Registrar's notice of jury.Section 113.

In the District Court of Queensland, ' • No. [of Plaint].Held at .


C.D., defendant.Take notice, that this cause will be tried by a jury, the having

demanded a jury therein.Dated this day of 18 .

Registrar of the Court.To the plaintiff [or defendant].

60,—Summons to jurors.In the District Court of Queensland, .

Held atYou are hereby summoned to appear and serve as a juror in this Court, at the Civil

Sittings, on the day of 18 , at the hour of inthe forenoon, upon the trial of the cause or causes to be then and there tried by jury, and in default of attendance you will be liable to a penalty, under Section 36 of “ The Jury Act of 1867.”


Registrar of the Court.To of

To Mr.

*60a.—Summons to jurors. (31 Victoriae No. 34.)

In obedience to a jury precept, to me directed, I do hereby require you to appear and serve as a juror at the District Court to be held at onthe day of 18 , at ten o’clock in the forenoon of thatday; and you are to attend the said Court from day to day, until you shall be discharged by the said Court.

Given under my hand this day of 18 .Deputy Sheriff.

* This form does not appear in the Schedule to the Rules. It lias been framed in pursuance of r. 14.


61.—Notice to jurors that attendance not required.In the District Court of Queensland,

Held atSir,—Your attendance as a juryman will not be required at the sittings of the District

Court of Queensland, held at on the day of18 .

Dated this day of 18 . #Registrar.

To Mr.

62.—Notice to jurors of alteration of day of attendance.In the District Court of Queensland,

Held atSir,—Your attendance as a juryman will be required on the

day of instead of the day 18 .Dated this day of 18 .

Registrar.To Mr.

63.—Affidavit of increase.Section 119.



C.D., defendant.We, of attorney for the abovenamed [plaintiffs] in

this action, and of the same place, one of the [plaintiffs] abovenamed,severally make oath and say :—

And first I, the said for myself say :—1. That this cause was tried on the day of last,

when a verdict was given for the [plaintiffs],2. That of esquire, of

carpenter, and of labourer, were necessary andmaterial witnesses for the [plaintiffs] in this cause, and that it would not have been safe or prudent for them to proceed to the trial thereof without the evidence of these witnesses.

3. That the said several witnesses were duly subpoenaed, and, to the best of mybelief, attended on the trial of this cause.

4. That I paid [name the commissioner] on the examination de bene esse of Mr.in this cause [state sum] for a copy of such examination [state sum],

and for his expenses as a witness for the [plaintiffs] on the said trial [state sum]. And I, the said for myself say :—

1. That I paid the said of esquire [state sum], thesaid of carpenter [state s'um], and the said

of labourer [state sum] for their loss of time,trouble, and expense as witnesses in this cause.

Sworn at , in the Colony of Queensland, this day of, one thousand eight hundred and before me.

This affidavit is filed on behalf of the

64.—Notice to be sent to both parties under Section 129 {or 130) of the Act.In the District Court of Queensland,


andC.D., defendant.

Whereas under the provisions of Section 129 (or 130) of the Act an action commenced in the Supreme Court of Queensland, wherein A.B., of &c., is plaintiff, and C.D., of &c., is defendant, has been ordered by [name of Judge of Supreme Court] to be tried in this Court.

Take notice, that the said action will be heard in this Court at the Civil Sittings commencing on the day of at the hour of inthe forenoon.


Registrar of the Court.To the plaintiff and defendant.


65.—Certificate of the result of the hearing of a cause under Sections 129 and 130.In the District Court of Queensland,

Held at .I hereby certify that an action, commenced in the Supreme Court of Queensland,

wherein is plaintiff and is defendant, which under sectionof the Act was ordered by to be tried in this Court, has been heard

accordingly in this Court, on this day, and the result was as follows :—Dated this day of 18 .

Registrar.

66.—Order for a new trial.Section 132.



C.D., defendant.It is.ordered, that the judgment in this case, and all subsequent proceedings thereon,

be set aside, and a new trial had between the parties on [set out the terms or conditions, if any, on tohich the order is made].



67.—Order to rescind a former order.Section 132.



C.D., defendant.It is ordered, that the order of this Court in this action bearing date the

day of be rescinded.Given under the seal of the Court, this day of 18 .


68.—Order of reference.Section 134.


• Between A.B., plaintiff,and

C.D., defendant.It is, at a Court held this day [or as the case may 6c], ordered that all matters in

difference in this cause [and all other matters within the jurisdiction of this Court, in difference between the said forties] be referred to of' andof whose certificate, to be made or given on or before theday of 18 , shall be entered as the judgment in this cause ; and it isfurther ordered, that the time for making or giving such certificate may be from time to time enlarged by the Judge of the Court, in his discretion for such time as he shall, by endorsement to be by him made on this order, direct; and that the said certificate, when made or given, may be referred back again to the arbitrators at the like discretion of the said J udge, without the further consent of the said parties ; and in case either of the said parties shall neglect or refuse to attend any appointment to be made by the said arbitrators for proceeding under this order, after days’ notice thereof, in writing, shallhave been given to him, by serving the same personally, or by leaving it at his last or usual place of abode, the said arbitrators shall be at liberty to proceed ex parte on the matters of the said reference, and their certificate shall be as valid as if both the said parties had duly attended before them. And it is further ordered, that the costs of the said reference shall be in the discretion of the arbitrators, and that the costs of the action shall abide the event; and it is lastly ordered that the submission to arbitration shall not be revocable by either party.



69.—Warrant of attachment and seizure under Section 136.Section 136.

In the District Court of Queensland, No. [of PlaintjiHeld at


C.D.j defendant.Whereas the plaintiff [or as the case may be] has shown to the satisfaction of the Judge

[or Registrar] that he [or the plaintiff] has a cause of action against the defendant to the amount of £ [£10 or upwards] [or that the plaintiff has sustained damage


from the defendant to the amount of £ [£10 or upwcirds\ and that thedefendant is about to leave the Colony [or as the case may be\ and that the action will be defeated by such departure [or as the case may be]: These are therefore to require and order you forthwith to seize and attach the goods and chattels of the defendant wheresoever they may be found, within the district of this Court, or so much thereof as may be sufficient to satisfy the plaintiff’s claim (except the wearing apparel and bedding of the defendant or his family, and the tools and implements of his trade, if any, to the value of £10), and to hold the same unless and until the defendant, or someone on his behalf, do, within fourteen days after the return hereof, give bail with two sufficient sureties in the amount of £ (being the amount of the plaintiff’s claim herein, and £5 forcosts), or deposit the said sum of £ in Court to abide the event of theaction, and in default of such bail or deposit being given or made to hold the same until execution be issued or further order made.

Given under the seal of the Court, this day of 18 .Registrar of the Court.

To the bailiff of the said Court and others the assistant bailiffs hereof.** Sic; semble “thereof.”

70.—Summons to a tenant or other person holding over.Section 137.


Between A.B., plaintiff,[address][idescription]

andC.D., defendant,


You are hereby summoned to appear at a District Court, to be holden at on the day of 18 , at the hour of in theforenoon, to answer the plaintiff, wherefore you neglect or refuse to deliver up to him possession of a certain [messuage with appurtenances, or part of a house, &c., or as the case may be] situate at

And take notice, that the plaintiff claims of you for rent [or mesne profits, or for rent and mesne profits] the sum of for a period from theday of 18 , to the day of 18 .

And further take notice, if you do not appear at the said Court, and show cause why you do not deliver up possession as aforesaid, the Judge of the said Court may order that possession of the said premises be given by you to the plaintiff forthwith, or on or before such day as the Judge shall name ; and that if such order be made, and be not obeyed, a warrant may issue to give possession to the plaintiff.

Dated the day of 18 .Registrar of the Court.

To the defendant.£ s. d,

Costs of this summons ... Claim for.........................

(On back.)Take Notice.—If the plaintiff in this action be not your immediate landlord, you must,

upon your being served with this summons, or if this summons shall come to your knowledge, forthwith give notice thereof to your immediate landlord ; and if you do not give such notice, you will be liable, under Section 140 of the Act, to forfeit to your immediate landlord three years’ rack-rent of the premises held by you of him in respect of which the summons shall have issued.

71.—Summons under Section 130 of the Act.Section 139.

In the District Court of Queensland, No. [of Plaint],Held at <

Between A.B., plaintiff, [address] [description]

andC.D., defendant,


You are hereby summoned to appear at a Court to be holden at onthe day of 18 , at the hour of in theforenoon, to answer the plaintiff why possession of a certain situateat should not be given up to the plaintiff, by reason of the rent payablein respect thereof by you being half a year in arrear, and the plaintiff having right by law to re-enter for the non-payment thereof.

If you shall pay to the Registrar the rent in arrear, and the costs of this action, as stated at the foot of the summons, clear days before the day you arerequired to appear to this summons, this action will cease.

SCHEDULE OF FORMS, 127

And. take notice, that if [you do not pay such rent in arrear and costs, or appear at the said Court and show cause why possession of the said should not berecovered against you, you may be ordered by the Court to give possession of such premises to. the plaintiff ; and that if such order be not obeyed, a warrant may issue to give possession to the plaintiff.


£ s. d.Costs of this summons ...

(On back.)Take Notice.—If the plaintiff in this action be not your immediate landlord, you

must, upon being served with this summons, or if this summons shall come to your knowledge, forthwith give notice thereof to your immediate landlord ; and if you do not give such notice you will be liable, under Section 140 of the Act, to forfeit to your immediate landlord three years’ rack-rent of the premises held by you of him in respect of which the summons shall have issued.

72.—Order for recovery of tenement.’ Section 137.



C.D., defendant.Upon the hearing of this cause at a Court holden this day, it is ordered, that the

defendant do give to the plaintiff possession of a certain [or messuagewith appurtenances, or part of a certain house with appurtenances, or as the case may be] situate at forthwith] or on the day of ],and it is adjudged that the plaintiff do recover against the defendant the sum of «£ for rent [or mesne profits or for rent and mesne profits] and£ costs.

And it is ordered, that the defendant do pay to the Registrar of the Court the sum [or sums] abovementioned on or before the day of - 18 .


Registrar of the Court.To the defendant.

Take notice, that if you do not give such possession, a warrant may issue requiring the bailiff of the Court to give possession of the said to the plaintiff, andto levy the sum abovementioned, together with further costs.

*72a.—Warrant for (jiving possession of tenement.In the District Court of Queensland, No. [of Plaint].

Held at No. [of Warrant],Between A.B., plaintiff,

andC.D., defendant.

Whereas at a Court held at . on the . dayof 18 , it was ordered by the Court that the defendant should give theplaintiff possession of a certain situate at and pay the sumof £ for and costs :

And whereas the defendant has not obeyed the said order.: These are, therefore, to authorise and require you to forthwith give possession of the said hereinbefore-mentioned premises to the plaintiff: And these are, therefore, further to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the defendant, wheresoever they may be found within the district of the Court (excepting the wearing apparel and bedding of the defendant or his family, and the tools and implements of his trade, if any, to the value of ten pounds), the said sum and the costs of this warrant and execution, and also to seize and take any money or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, of the defendant which may be there found, or such part or so much thereof as may be sufficient to satisfy this execution, and the costs of making and executing the same, and to pay the amount so levied to the Registrar of this Court, and make return of what you have done under this warrant immediately upon the execution thereof.

Given under the seal of the Court, this day of 18 .By the Court, .

Registrar of the Court.To the bailiff of the said Court.

£ s. d.Rent [mesne profits or rent and mesne profits] ...Costs ....................................................................

Total amount to be levied .............. £

* This form does not appear in the Schedule to the Rules. It has been formed in pursuance of r. 14.


Notice.—The goods and chattels are not to be sold until after the end of five day3next following the day on which they were seized, unless they be of a perishable nature, or at the request of the defendant.

Application was made to the Registrar for this warrant at minutespast the hour of in the noon of the dayof 18 .

73.—Notice of appeal to other party.Section 144.



C.D., defendant.Take notice, that the plaintiff [or defendant] intends to appeal to the Supreme Court

against the judgment [or order] of His Honour Judge given [or made] onthe hearing of the above action on the day of 18directing that [here set out judgment or order]: On the grounds [here set out grounds in numbered paragraphs].

Dated this day of 18 .Signed G.H., solicitor for the abovenamed plaintiff [or defendant].

To E.F., solicitor for the abovenamed defendant [or plaintiff].

74.—Bond where a plaintiff is appellant.Section 144.

In the District Court of Queensland, No. [of Plaint].-Held at .


G.H., defendant.Know all men by these presents that we, A.B. of, &c., and C.D, of, &c., and E.F. of,

&c., are jointly and severally held and firmly bound to G.H. of, &c., in £ *to be paid to the said G.H., or his certain attorney, executors, administrators, or assigns. For which payment to be made we bind ourselves, and each and every of us, in the whole, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents.

Sealed with our seals, and dated this day of 18 .Whereas an action is now depending in the District Court of Queens

land, held at wherein the above-bounden A.B. is plaintiff and the above-named G.H. is defendant:

And whereas the said action came on to be tried in the said Court on the day of when a judgment was given for the said G.H. :

And whereas the said A.B., being dissatisfied with such judgment, gave due notice to the said G.H. of his, the said A.B.’s, intention to appeal from trie same to the Supreme Court of Queensland, according to the statute in such case made and provided :

. And whereas it is thereby provided that the party who shall appeal as aforesaid shall give security, to be approved by the Registrar of the Court aforesaid, for the costs of the appeal, whatever be the event thereof :

And whereas the above-named C.D. and E.F., at the request of the said A.B., have agreed to enter into the above-written obligation for the purposes aforesaid, and the security intended to be hereby given has been approved of by the Registrarof the said District Court, as appears by his allowance at the foot hereof :* Now the condition of this obligation is such, that if the above-bounden A.B., C.D., and E.F., any or either of them, shall pay unto the said G.H., his executors, administrators, or assigns, the costs of the said appeal, as the said Supreme Court shall order, then this obligation shall be void, otherwise shall remain in full force.

A.B. (l.s.)C.D. (l.s. )E.F. (l.s.)

Signed, sealed, and delivered by the above-bounden in the presence ofAs to giving security, see Index, title Security.

75.—Bond where defendant is appellant.In the District Court of Queensland, No. [of Plaint].

Held at *Between G.H., plaintiff,

andA.B., defendant.

Know all men by these presents that we, A.B. of, &c., and C.D. of, &c., and E.F. of, &c., are jointly and severally held and firmly bound to G.H. of, &c., in £ tobe paid to the said G.H., or his certain solicitor, executors, administrators, or assigns. For which payment to be made we bind ourselves, and each and every of us, in the whole, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. "

Sealed with our seals, and dated this day of onethousand eight hundred and

* I approve of this bond.—LK., Registrar. (l.s.)


Wliereas an ac^lon is now depending in the District Court of Queensland, held at wherein the abovenamed G.H. is plaintiff, and the above-bounden A.B. is defendant:

And whereas the said action came on to be tried in the said Court on the °1 last, when a judgment was given for the said G.H. in the sum

And whereas the said A.B., being dissatisfied with such judgment, gave due notice to the said G.H. of his, the said A.B.’s, intention to appeal from the same to the Supreme Court of Queensland, according to the statute in such case made and provided :

. whereas it is thereby provided that the party who shall appeal as aforesaid shallgive security, to be approved by the Registrar of the Court aforesaid, for the costs of the appeal, whatever be the event thereof, and also for the amount of the judgment if such party be the defendant, and the appeal be dismissed :

And whereas, the abovenamed C.D. and E.F., at the request of the said A.B., have agreed to enter into the above-written obligation, for the purposes aforesaid, and the "fun* intended to be hereby given has been approved of by the Registrarof the said District Court, as appears by his allowance at the foot hereof*: Now the condition of this obligation is such, that if the above-bounden A.B., C.D., and E.F., any or either of them, shall pay unto the said G.H., his executors, administrators, or assigns, the costs of the said appeal, as the said High Court shall order (and shall also in case the said appeal shall be dismissed, pay to the said G.H., his executors, administrators, or assigns, the said sum of £ [amount of the judgment +]), then this obligation shall bevoid, otherwise shall remain in full force.

A.B.C.D.

a. , . E.F.Signed, sealed, and delivered by the above-bounden in the presence of

76.—Agreement under Section 148 that the Judge's decision shall be final,. b Section 148. f

In the District Court of Queensland, No. [of Pmjnt]Held at Between A. B., plaintjiJiS

andC.D., defeni

We [the respective attorneys of], the abovenamed plaintiff and defendant, do under the provisions of Section 148 of “ The District Courts Act, 1891,” agree thi decision of the Judge of this Court in this action shall be final.

Given under our hands this day of 18 .(Signed) Plaintiff [’s attorney].

-------- Defendant [’s attorney].77.—Order for costs of the day, under Section 153 of the Act.

. # # Section 153.In the District Court of Queensland, No. [of Plaint].

Held at Between A.B., plaintiff,' and

C.D., defendant.Whereas a rule [or summons] has been granted by [Supreme Court or Judge], requiring

cause to be shown why a writ of certiorari [or prohibition] should not issue in this cause, and no order has been made by such Court [or J udge], respecting the costs in this Court ;and whereas a copy of such rule [or summons] has not been served on the plaintiff [ordefendant] [or Registrar], according to Section 153 of the Act • md whereas the plaintiff [or defendant] has on this day appeared at this Court to prosecute [or defend] this cause : It is ordered, that the defendant [or plaintiff] do pay the sum of £ for the plaintiff’s[or defendant s] costs of the day ; and it is ordered, that the defendant [or plaintiff] dc pay the same to the Registrar of the Court, on the day of 18 .


As to prohibition, see ss. 152 to 151. Registrar of the Court.

78.—Order for costs of the day, under Section 154 of the Act.Section 154.

In the District Court of Queensland, No. [of Plaint].Held at Between A.B., plaintiff,

and. .... C.D., defendant.

Whereas a writ of certiorari [or prohibition] has been granted in this cause by [the Supreme Court or Judge] on the ex parte application of the defendant [or plaintiff] who has not lodged it with the Registrar of the Court or has not given notice to the plaintiff [or defendant] that it has issued, two clear days before this day, being the day fixed for hearing this cause ; and whereas the said [Siqoreme Court or Judge] has made no order respecting the costs of the cause in this Court; and whereas the plaintiff [or defendant] has on this day appeared, at this Court to prosecute [or defend] this cause : It is ordered that the defendant [or plaintiff] do pay the sum of £ for the plaintiff’s [or defendant’s] costs of the day ; and it is ordered that the defendant [or plaintiff] do pay the same to the Registrar of the Court on the day of 18 .

Given under the seal of the Court, this day of 18 .As to prohibition, see ss. 152 to 151 Registrar of the Court.* I approve of this bond.—I.K<, Registrar, (us.) t To be omitted, if amount previously paid into Court.K


79.—Warrant of execution against the lands and goods of defendant.Section 161.

In the District Court of Queensland, No. [of Plaint].Held at No. [of Warrant].


C.D., defendant.Whereas on the day of 18 , the plaintiff obtained a

judgment in this Court against the defendant for the sum of £ for debt [ordamages] and costs, and it was thereupon ordered by the Court that the defendant should pay the same to the Registrar on the day of [or by instalments of for every days]; and whereas default has been made inpayment according to the said order : These are therefore to require and order youforthwith to make and levy by distress and sale of the lands, goods, and chattels of the defendant, wheresoever they may be found within the district of this.Court (except the wearing apparel and bedding of him or his family, and the tools and implements, of his trade, if any, to the value of .£10), the sum stated at the foot of this warrant, being.the amount due to the plaintiff under the said order, including the costs of. this execution, and also to seize and take any money or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialities, or securities for money of the defendant, which may there be found, or such part or so much thereof as may be sufficient to satisfy this execution and the costs of making and executing the same; and to pay what you shall have so levied to the Registrar of this Court, and make return of what you have done under this warrant immediately upon the execution thereof.

Given under the seal of the Court, this . day of 18 .By the Court,


. . £ s. d.Amount for which judgment was obtained .........................Costs ......................... ..............................................Mileage ..................................................................................Execution costs ......................................................................

By amount paid into Court ...

Total amount to be levied

Notice.—The goods and chattels are not to be sold until after the end of five days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the defendant.

Application was made to the Registrar for this warrant at minutes pastthe hour of in the noon of the day of 18 .

*79a.—Warrant of execution against the lands and goods of defendant, when judgmentsigned under Section 75. .

In the District Court of Queensland, No, [of Plaint],Held at No. [of Warrant].


C.D., defendant.Whereas on the day of 18 , the plaintiff obtained a

judgment in this Court against the defendant for the sum of £ for debt, and£ for costs, payable forthwith : And whereas default has been made in payment of the said debt and costs : These are, therefore, to require and order you forthwith to make and levy by distress and sale of the lands, goods, and chattels of the defendant, wheresoever they may be found within the district of this Court (except the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of ten pounds), the sum stated at the foot of this warrant, being the amount due to the plaintiff under the said order, including the costs of this execution; and also to seize and take any money or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, of the defendant which may there be found, or such part or so much thereof as may be sufficient to satisfy this execution, and the costs of making and executing the same ; and to pay what you shall have so levied to the Registrar of this Court, and make return of what you have done under this warrant immediately upon the execution thereof.


. Registrar of the Court.To the bailiff of the said Court and others the assistant bailiffs thereof.

£ s. d.Amount for which judgment was obtained.............. ...Costs ..................................................................................Mileage ..................................................................................Execution costs ......................................................................

Total amount to be levied ......................... <£

* This form does mot appear in the Schedule to the ltules. It has been framed in pursuance of r. 14.


Notice.—The goods and chattels are not to be sold until after the end of five days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the defendant.


80. — Warrant of execution against the lands and goods of plaintiff.In the District Court of Queensland, No. [of Plaint],

Held at No. [of Warrant].Between A.B;, plaintiff,

andC.D., defendant.

Whereas at a Court held at on the day of *18 , it was ordered by the Court that judgment should be entered for the defendant [or that judgment of non-suit be entered] and that the plaintiff should pay to the Registrar of the Court on or before the day of the sumof for the defendant’s costs of suit; and whereas default has been made in payment according to the said order; These are therefore to require and order you forthwith to make and levy by distress and sale of the lands, goods, and chattels of the plaintiff, wheresoever they may be found within the district of this Court (excepting the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of .£10), the sum stated at the foot of this warrant, being the amount due to the defendant under the said judgment, including the costs of this execution, and also to seize and take any money or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialities, or securities for money of the plaintiff, which may there be found, or such part or so much thereof as may be sufficient to satisfy this execution and the costs of making and executing the same; and to pay what you shall have so levied to the Registrar of the Court, and make return of what you have done under this warrant immediately upon the execution thereof.



To the bailiff of the said Court and others the assistant bailiffs thereof.£ s. d.

Costs adjudged ......................................................................Mileage .................................................................................Execution costs ......................................................................

By amount paid into Court ...

Total amount to be levied ...

. Notice.—The goods and chattels are not to be sold until after the end of five days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the said plaintiff.


81.—Freedpc for warrant of execution.

Section 1G1.In the District Court of Queensland,

Held atNo. [of Plaint].No. [of Warrant],


. C.D., defendant.Seal a warrant of execution directed to the bailiff of the District Court of Queens

land, at to levy against the lands, goods, and chattels of the above-namedthe sum of £

Judgment dated theand the sum of £

day offor costs. A. I). 18

£ s. d.Judgment debt Costs as taxed Mileage ... Execution costs

Paid into Court

Levy ...

Warrant applied for at tf the day of

minutes past the hour o A.D. 18 .

in the noon


82.—Warrant of execution in detinue against the lands and goods of defendant.Section 161.



C.D., defendant.Whereas at a Court holden at on the day of

18 , the plaintiff obtained a judgment against the defendants the sum of £ thesame being assessed by this Court to be the value of certain chattels of the plamtin wrongfully detained by the defendant, and for the further payment of £ fordamages for the detention of the said chattels, and of £ for costs; and thereupon it was ordered by the Court, that the defendant should pay the same to the Registrar of this Court cn the day of [or by instalmentsof for every days, the first instalment to be paid on theday of 18 ] *And it was further ordered, that if the defendant shouldon or before the said last mentioned day pay to the Registrar the said sump respectively above ordered to be paid for damages and costs, and also return to the plaintiff the said chattels, and if the plaintiff should then accept the same, then satisfaction of the said judgment should be entered up by the Registrar on the production to him of a receipt for the said chattels, signed by the plaintiff or his attorney and whereas fthe defendant did not on the said day of 18 , return the said chattelsto the plaintiff, andf default has “ also ” been made in payment according to the said orders : These are therefore to require and order you forthwith to make and levy by distress and sale of the lands, goods, and chattels of the defendant wheresoever they may be found within the district of this Court (except the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of «£10), the sum stated at the foot of this warrant being the amount due to the plaintiff under the said order, including the costs of this execution; and also to seize and take any money or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialities, or securities for money of the defendant, which may there be found, or such part or so much thereof as may be sufficient to satisfy this execution and the costs of making and executing the same ; and to pay what you have so levied to the Registrar of this Court, and to make return of what you have done under this warrant immediately upon the execution thereof.



N.B.—If the judgment do not contain the words between * and *, omit those words in the warrant, and also the words between the marks t and f, and the word “ also.”

£ s. d.Value of goods detained ...........................................................Damages for their detention ................................................Costs.............................................................................................

Paid into Court

Remaining due Mileage ...

Total amount to be levied ......................... £

Notice.—The goods and chattels are not to be sold until after the end of five days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the defendant. ’


For judgment in detinue, see r. 154.For form of judgment in detinue, see f. 51.

83.—Summons for a writ of capias ad satisfaciendum.Section 170,

In the District Court of Queensland, No. [of Plaint]<Held at Between A.B., plaintiff,

andC.D., defendant.

You are hereby summoned to appear at the District Court of Queensland, held at , on . the day of , at

o’clock in the noon, to show cause [here state in full what thedefendant is called upon to show cause to]. '

Dated this day of 18 .l$y the Court,

To the abovenamedRegistrar.


84.—Order for writ of capias ad satisfaciendum.In the District Court of Queensland, No. [of Plaint].

Held at Between A.B., plaintiff,and

C.D., defendant.the day of in the year of our Lord one

thousand eight hundred andUpon reading the affidavit of [state name and address] sworn and filed herein, and

upon hearing and being satisfied that the abovenamed defendant [state thegrounds at lcngth\ I do hereby authorise the Registrar of the said Court,to issue a writ of capias ad satisfaciendum to arrest the said the abovenameddefendant, for the amount of the verdict, order, and judgment obtained against him in this Court and cause.

(Judge’s signature.)£ s. d.

Judgment ....................................Costs ...............................................Costs oica.su........................................

-e

85.— Writ of capias ad satisfaciendum.In the District Court of Queensland No. [of Plaint],

Held at ,Between A.B., plaintiff,

andC.D., defendant.

To bailiff of the said Court, and others, the officers of the said Court, andall peace officers within the jurisdiction of the said Court, and to the governor or keeper of the gaol at [here name the gaol], and to each and every of them.

Whereas at a District Court held at on the dayof 18 , the abovenamed in a certain cause recoveredagainst the abovenamed the sum of pounds shillingsand pence, for his damages [or costs, as the case] may be], together withthe sum of pounds shillings and pence,the costs of the said suit, amounting together to the sum of pounds

shillings and pence; and whereas, the saidnot having been paid the said sum of pounds shillingsand pence, it was ordered by a special order of the Judge of the saidDistrict Court, bearing date on the day of 18 , that thesaid should be arrested in execution according to the provisions of. the Act,until the said judgment and costs [or costs, as the case may be], and the costs of this execution, amounting altogether to the sum of pounds shillingsand pence, should be paid, or until he should be discharged by due courseof law.

These are therefore to require you, the said bailiff, and others, the officers of the said Court, and all peace officers within the jurisdiction of the said Court, to take the said

.«» and to deliver him to the governor or keeper of the said gaol, and you, the said governor or keeper of the said gaol, are hereby ^required to receive the said

and him safely to keep in the said gaol at until the saidsum of pounds shillings and # pence beduly paid, or until he be sooner discharged by due course of law; for which this shall be your sufficient warrant.

Given under the seal of this Court, this day of. 18 .

Registrar.£ s. d.

Judgment ....................................Costs ................................................ *Execution ....................................

£

8G.—Certificate for the discharge of a defendant from custody. ■Section 171.

In the District Court of Queensland, No. [of Plaint],’ Held at Between A.B., plaintiff,

andC.D., defendant.

I hereby certify that the defendant, who was committed to your custody by virtue of a writ of capias ad satisfaciendum, under the seal of this Court, bearing date the

day of 18 (has paid and satisfied the sum of money forthe non-payment whereof he was so committed, together with all costs due and payable

134 SCHEDULE OE FORMS.

by him in respect thereof; and that the defendant) may, in respect of such warrant, be forthwith discharged out of your custody.

Given under the seal of the Court, this day of 13 .By leave of the Judge of the Court,

Registrar of the Court.To the governor or keeper of

87.—Registrar's warrant requiring execution of annexed warrant to be sent out of district.Section 173.


andC.D., defendant.

Whereas the warrant of execution [or commitment] hereto annexed, has been issued out of this Court against the goods and chattels of [or against] and whereasthe goods and chattels of [or whereas] the said arejo?’ is] out of the ordinaryjurisdiction of this Court and are [or is] believed to be within the jurisdiction of the District Court of Queensland, held at of which you are the Registrar.These are therefore to require you to cause the said warrant to be executed within the ordinary jurisdiction of the said last-mentioned District Court.

Dated this * day of 18 .

Registrar of the District Court of Queensland held at To the Registrar of the District Court of Queensland held at

As to costs of warrant, see r. 147.As to commitment generally, see s. 198.

88.—Interpleader summons to execution creditor.Section 180.


andC.D., defendant.

Whereas [here insert the name, address, and description of claimant, so far as is then known] hath made a claim to [certain goods and chattcls^or moneys, <L'C. taken in execution under process issuing out of this Court, at your instance&or certain rent alleged to be due to him]:— .

You are, therefore, hereby summoned to appear at a Corirt to be holden at on the day of at the hour of in the forenoon,when thesaid claim will be adjudicated upon, and such order iaaade thereon as to the Judge shall seem fit.


Registrar of the Court.To the plaintiff. .

Note.—The claimant is called upon to give the particulars of his claim,j^hich you may inspect on application at the office of the Registrar of this Court four days before the day of hearing.

89.—Interpleader summons to a claimant setting up a claim to goods or the proceeds thereof.• Section 180.

In the District Court of Queensland, No. [of Plaint],Held at Between A.B., plaintiff,

andC.D., defendant.

* [iVhwr, address, and description of claimant.]You are hereby summoned to appear at a Court holden at on the

day of 18 , at the hour of in the forenoon,to support a claim made by you to certain goods and chattels [or moneys, &c.] taken in execution under process issued in this cause at the instance of [the execution creditor] and in default of your then establishing such claim the said goods and chattels will be sold [or the said moneys, &c., paid over] according to the exigency of the said process; and take notice, that you are hereby required, five days before the said day, to deliver to the officer in charge of the said process, or leave at my office, particulars of the goods and chattels which [or the proceeds whereof] are claimed by you, and of the grounds of your claim ; and in such particulars you shall set forth fully your name, address, and description ; and take notice, that in the event of your not giving such particulars as aforesaid your claim will not be heard by the Court.


Registrar of the Court,To of


90.—Interpleader summons to a claimant setting up a claim to rent in respect of the premises upon which the execution was levied.

m ' Section 180,In the District Court of Queensland, No. [of Plaint],


C D., defendant.[Name, address, and description of claimant.]

You are hereby summoned to appear at a Court to be holden at onthe day of 18 , at the hour of in the forenoon,to support a claim made by you to certain rent alleged by you to be due to you in respect of and issuing out of certain premises upon which certain goods and chattels were taken in execution under process of this Court in this cause at the instance of [the execution creditor] and in default of your then establishing such claim the said goods and chattels will be sold, and the proceeds thereof paid over according to the exigency of the said process [or if such goods and chattels shall have been then sold, then the proceeds of such sale will be paid over according to the exigency of the said process]; and take notice, that you are hereby required five days before the said day, to deliver to the officer in charge of the said process, or leave at my office, particulars of the amount of the rent claimed by you, and of the period for which and of the premises in respect of which you claim such rent, and of the grounds of your claim, and in such particulars you shall set forth fully your name, address, and description; and take notice, that in the event of your not givingsucli particulars your claim will not be heard by the Court.


Registrar of the Court.To of

91.—Order on an interpleader summons where the claim is not established.■ ' ' Section ISO. .In the District Court of Queensland, No. [of Plaint].


C.D., defendant, E.F., claimant.

It is this day adjudged, touching the claim of E.F. to certain goods and chattels [or moneys, &c.] taken in execution in this action [or to certain rent alleged to be due to him] that the said goods and chattels [or moneys, &c., or part thereof, to wit, &c., specifying them] are the property of the execution debtor [or that there is no rent due to the said ]: And it is ordered, that the costs of this proceeding, amounting to

be paid by the said E.F. to the Registrar of this Court, on or beforethe day of for the use of the execution creditor.

Given under ithe seal of the Court, this day of IS .' By the Court,


92.—Order on an interpleader summons where the claim is established.Section 180.

In the District Court of Queensland, No. [of Plaint].Helchffct Between A.B., plaintiff,

andC.D., defendant, E.F., claimant.

It is this day adjudged, touching the claim of E.F. to certain goods and chattels [or moneys, &c.] taken in execution in this action [or to certain rent alleged to be due to him] that the said goods and chattels [or moneys, &c., or part thereof, to wit, specifying them] are his property [or that rent to the amount of £ is due to him].

And it is ordered, that the said [execution creditor] do pay to the Registrar of this Court, for the use of the said E.F., £ for costs, on or before the

day of 18 .Given, under the seal of the Court, this day of 18 .


93.—Warrant of execution against the lands and goods of claimant. t # Section 180.



C.D., defendant.' E.F., claimant.

Whereas, at a Court holden at on the dayof 18 , the plaintiff, by the judgment of the said Court, recovered againstthe defendant the sum of £ for debt [or damages] and for costs ; andwhereas the defendant, by an order of the Court, was ordered to pay the same to. the


Registrar of the Court; and whereas default having been made in payment according to the. said order, an execution issued against the lands and goods of the defendant, under which certain goods and chattels were seized, in respect to which E.F., of, &c., made claim, and which claim was heard and decided upon at a Court holden at on. the . day of 18 , and it was adjudged that the goods soseized under the said execution were the property of the defendant [or that certain rent alleged by th§ said of, &c., to be due to him was not so due]; and it wasordered that the costc of that proceeding, amounting to the sum of «£ should be paid by the claimant to the Registrar of the said Court, on or before the

. day of 18 ; and whereas default has been made inpayment according to the said last-mentioned order : These are therefore to require and order you forthwith to make and levy by distress and sale of the lands, goods, and chattels of the said claimant wheresoever they may be found within the district of this Court (excepting the wearing apparel and bedding of the said claimant or his family and the tools and implements of his trade, if any, to the amount of £10), the sum stated at the foot of this warrant, being the amount due to the plaintiff under the said order, including the costs of this execution; and also to seize and take any money or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialities, or securities for money of the claimant which may there be found, or such part, or so much thereof as may be sufficient to satisfy this execution and the costs of making and executing the same ; and to pay what you shall have so levied to the Registrar of the Court, and make return of what you have done under this warrant immediately upon the execution thereof.


To the bailiff of the said Court.Registrar of the Court.

£ s. d.Costs adjudged .. ..............Mileage ....................................

Total amount to be levied £

Notice.—The goods and chattels are not to be sold until after the end of five days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the said claimant. ”


' 94.—Order for examination of ju.dgmen t debtor.' Section 181.

In the District Court of Queensland, No. [of Plaint].Held at Between A.B., judgment creditor,

andC.D., judgment debtor.

Upon hearing and upon reading the affidavit of filedthe . day of 18 , and

It is ordered that the abovenamed judgment debtor attend and be orally examined as to whether and what debts are owing to him before the Judge in Chambers (or the Registrar or person appointed), at such time and place as he may appoint, and that the said judgment debtor produce his (books) before the said ‘ at the time of theexamination, and that the costs of this application be

Dated the day of 18 . **By the Court,

Registrar.

95.—Garnishee order attaching debt.In the District Court of Queensland, No. [of Plaint].

Held at Between A.B., judgment creditor,and

C.D., judgment debtor, E.F., garnishee.

Upon hearing and upon reading the affidavit of filedherein on the day of 18 , and

It is ordered that all debts owing and accruing due from the abovenamed garnishee to the abovenamed judgment debtor be attached to answer a judgment recovered against the said judgment debtor by the abovenamed judgment creditor in the District Court of Queensland, held at on the day of 18for the sum of £ on which judgment the sum of £ remainsdue and unpaid.

And it is further ordered that the said judgment creditor may be at liberty to issue a summons requiring the said garnishee to appear before the Judge in Chambers at Court . House, on the day of 18at o’clock in the • noon, and to show cause why he should notpay the said judgment creditor the debt due from the said garnishee to the said judgment debtor or so much thereof as is sufficient to satisfy the said judgment and the costs of this application and of the proceedings arising therefrom and incidental thereto.

Dated the day of 18 fBy the Court,



9G.—Garnishee order absolute.Section 184. .

In the District Court of Queensland, No. [of Plaint].Held at Between A.B., judgment creditor,

andC.D., judgment debtor, E.F., garnishee.

Upon hearing and upon reading the affidavit of . filedthe day of 18 , and whereby it was orderedthat all debts owing or accruing due from the abovenamed garnishee to the abovenamed judgment debtor, should be attached to answer a judgment recovered against the said judgment debtor by the abovenamed judgment creditor, in the District Court of Queensland, held at on the day of 18 , for the sumof £ on which judgment the said sum of £ remained due and unpaid :

It is ordered that the said garnishee do forthwith pay the said judgment creditor the debt due from him to the said judgment debtor -[or so much thereof as may be sufficient to satisfy the judgment debt] and that in default thereof execution may issue for the same, and that the costs of the application be

Dated this day of 18 .By the Court, •


97.—Warrant of commitment for contempt.Section 198. ^

In the District Court of Queensland, No. [of Warrant],Held at Between A.B., plaintiff,

andC.D., defendant.

To the bailiff and others, the officers of the said Court, and all peace officers within the jurisdiction of the said Court, and to the governor or keeper of the [gaol used by the Court]. >

Whereas at a Court holden on this day, A.B. wilfully insulted the Judge during his sitting in Court [or C.D., the Registrar, bailiff, or officer, as the case may be, of the said Court during his attendance in Court, or wilfully interrupted the proceedings of the said Court, or wilfully misbehaved in the said Court] : These are therefore to require you, the said bailiff, officers, and others, to take the said A.B., and to deliver him to the governor [or keeper] of the abovenamed prison, and you, the said governor [or keeper, &e.], to receive the said A.B , and him safely keep in the said prison for days from thearrest under this warrant, or until he shall be sooner discharged by due course of law.

Given under the seal of the Court, this day of 18 .Judge of the Court,

As to costs of warrant, see r. 147.As to commitment generally, see s. 198.

98.—Summons in nature of a scire facias where any change of jdIaintiff.In the District Court in* Queensland, No. [of Plaint],

Held at Between E.F., plaintiff,. [address]

[description]and

C.D., defendant, [address] [description].

Whereas A.B., at a Court holden at on the day of .18 , obtained a judgment against you for the sum of £ for debt and costs, whichjudgment now remains unsatisfied; and whereas the said A.B. has since died [or state circumstances requiring revival of judgment] and the said plaintiff is his executor [or state representative character]: You are hereby summoned to appear at a Court to be holdenat on the day of 18 , at the hour ofin the forenoon, to show cause why judgment should not be entered up at the suit of the plaintiff on the judgment so obtained against you, and why execution should not issue thereon.


Due on judgment

Registrar of the Court.£ s. d.

To the defendant.N.B.—Where the judgment in the original cause was for the defendant, the above

form must be altered accordingly.As to scire facias, see rr, 157, 158,♦ Sics semble “of,”


99.—Summons in nature of scire facias where any change of defendant.In the District Court of Queensland, No. [of Plaint].

Held at Between A.B., plaintiff,[address] [description]

andE.F., defendant,

[address]

Whereas the plaintiff, at a Court holden at on the dayof 18 , obtained a judgment against C.D., of [name, address, and descriptionof C.D.] for the sum of £ for and costs, which judgment now remainsunsatisfied; and whereas the said C.D. has since died [or state ca,use of revival being necessary] and you are his executor [or state other representative character]: You are hereby summoned to appear at a Court to be holden at on the dayof 18 , at the hour of in the noon, to show cause whyjudgment should not be entered up against you, at the suit of the plaintiff, on the judgment bo obtained, and why execution should not issue thereon.


To the defendant.Registrar of the Court.

£ s. d.Due on judgment .............. ...

N.B.—Where the judgment in the original cause was for the defendant, the above form must be altered accordingly.

As to scire facias, see rr. 157. 158.

100.—Judgment on scire facias summons on change of plaintif.In the District Court of Queensland, No. [of Plaint],

Held at Judgment No.Between E.F., plaintiff,

andC.D., defendant.

Whereas A.B., at a Court holden at on the day of18 , obtained a judgment against the defendant for payment of £ forand costs, which judgment now remains unsatisfied ; and whereas the said A.B. has since died [or state circumstances requiring revival of judgment], and the plaintiff is his executor [or state other representative character]: It is ordered that the said plaintiff be at liberty to issue execution on the said judgment against the said defendant (and for the sum of £ for further costs).

Given under the seal of the Court, tins . day of 18 .By the Court,

Due on judgment


N.B.—Where the judgment in the original cause was for the defendant, the above form must be altered accordingly.

As to scire facias, see rr. 157,158.

101.—Judgment on scire facias on change of defendant.In the District Court of Queensland, No. [of Plaint],


and. E.F., defendant.

Whereas the plaintiff, at a Court holden at on the dayof 18 , obtained a judgment against C.D. for the sum of £ forand costs, which judgment now remains unsatisfied ; and whereas the said C.D. has since died [or, state other circumstances requiring revival of judgment], and the defendant is his executor [or state other repi'esentative character], [conclude according to the rules and forms as to executors and the defence made].


Due on judgment


N.B;—Where the judgment in the original cause was for the defendant, the above form must be altered accordingly.

As to scire facias, see rr. 157, 158. •


102.—Notice to produce {r/eneral form).Tn the District Court of Queensland, No. [of Plaint],


C.D., defendant.Take notice, that you are hereby required to produce and show to the Court at the

hearing of this all books, papers, letters, copies of letters, and other writingsand documents in your possession, custody, or power, containing any entry, memorandum, or minute relating to the matters in question in this and particularlyspecify them.

Dated the day of 18 .(Signed) of

Solicitor for the abovenamed plaintiff [or defendant].

To the abovenamed defendant’s [or plaintiff’s] solicitor.

*103.—Subpoena to witness for Crown.Queensland, to Wit.

Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, &c.

ToGreeting:

We command you and every one of you, firmly enjoining you, That laying aside all pretences and excuses whatsoever, you and every of you be and appear in your proper persons before Our Judge of the District Court of our Colony of Queensland, on the day of 18 , by nine of the clock in the forenoon of thesame day, at , in our Colony of Queensland, in the Court-house situatein , there to testify the truth and give evidence on the part of the Crownbefore Our said Judge touching a certain information to be preferred against in a case of , and that you so appear from day to day until thecase be tried; and this you, or any or either of you, are not to omit, under a penalty of one hundred pounds, to be levied upon your and every of your goods and chattels, lands and tenements, if you, or any or either of you, shall fail in the premises.

Dated this day of 18 ,By the Court,

Registrar.©3” In order to expedite tlie public business and to prevent unnecessary delay, all witnesses for

the prosecution are required to appear in the Registrar’s Office, at the Court-house, at nine o’clock in the morning abovementioned for their appearance; and all witnesses for the prosecution are directed to attend in the Registrar's Office every morning, at the same time, until the trial takes place. Xo expenses will he allowed to witnesses who do not report themselves in this manner; and any Avitness absent from Court when called will thereby forfeit all claim for expenses.

The indorsement of the subpoena is as follows :—Queensland, to Wit.

In the District Court of Queensland.The Queen against

maketh oath and saith, that he did on the day of 18 ,personally serve a true copy of the within subpcena on the within-named and at the time showed the within original; and that the following arethe distances each witness resides from to the best of his knowledge andbelief, namely :—

Sworn this day of 18 , before me.(Signed) E.F., J.P.

*104.—Subpoena to ivitness for prisoner. ■ •Queensland, to Wit.

Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, &c.

ToGreeting: ^

We command you and every one of you, firmly enjoining you, That laying aside all pretences and excuses whatsoever, you and every of you be and appear in your fjroper person before Our Judge of the District Court, on theday of 18 , by nine of the clock in the forenoon of the same day, at

, in our Colony of Queensland, in the Court-house situate in there to testify the truth and give evidence on the part of the prisoner before Our said Judge, touching a certain information to be preferred against . in a case of

, and that you so apppear from day to day until the case be tried ; and this you, or any or either of you, are not to omit, under a penalty of one hundred pounds,



Condition to be indorsed on recognizance.

to be levied upon your and every of your goods and chattels, lands and tenements, if you, or any or either of you, shall fail in the premises.

Dated this day of 18 .By the Court,

Registrar.1263” Although subpoenas for witnesses are, on the request of prisoners, issued from the Registrar's

Office, it is to be understood that no witnesses will receive expenses from the Crown, except those bound over by the magistrates.

*105.—Recognizance to give evidence.Queensland, to Wit.

Be it remembered, That on the day of , in the year ofour Lord one thousand eight hundred and , personallycame before the undersigned, one of Her Majesty’s Justices of the Peace for the said Colony, and acknowledged to owe to our Sovereign Lady the Queen thesum of sterling, to be made and levied of goods and chattels, landsand tenements, to the use of our said Lady the Queen, Her Heirs and Successors, if the said shall fail in the condition endorsed.

inTaken and acknowledged the day and year first above mentioned, at

the said Colony, before(Signed) E.F., J.P.

Condition.m The condition of the within-written recognizance is such, That whereas an informa

tion was this day filed by Her Majesty’s Crown Prosecutor for the District Court of Queensland held at , on behalf of our Sovereign Lady the Queen, in theDistrict Court at . against for that the’saidIf, therefore, the said shall appear at the next Criminal Sitting of theDistrict Court to be holden at , in the Colony of Queensland, onthe day of , and there give such evidence asknew to the jurors who shall pass between our Sovereign Lady the Queenand upon trial , then the said recognizance to bevoid, or else to stand in full force and virtue.

*106.—Recognizance of bad. .Queensland, to Wit.

Be it remembered, that on the day of 18 ,of , in the said Colony, , and of

, in the said Colony, , personally came before the undersigned, one of Her Majesty’s Justices of the Peace for the said Colony, and severally acknowledged themselves to owe to our Sovereign Lady the Queen the several sums following, that is to say, the said the sum of , the said

the sum of , and the said the sum ofsterling, to be made and levied of their several goods and chattels, lands

and tenements, respectively, to the use of our said Lady the Queen, Her Heirs and Successors, if the said shall fail in the condition endorsed.

Taken and acknowledged before at , in the said Colony.

the day and year first above mentioned,

(Signed) E.F., J.P.

Condition.' The condition of the within recognizance is such, That whereas an information was

this day filed by Her Majesty’s Crown Prosecutor at the District Court held at against the said for that If, therefore, the saidshall appear at the next Criminal Sittings of the District Court to be held at ,in the Colony of Queensland, on the _ day of 18 , andthere surrender into proper custody, and take trial upon the same,and not depart from the said Court without leave, then the said recognizance to be void, or else to stand in full force and virtue.

*107.—Notice of recognizance to be given to the defendant and his bail.Take notice, that you , of , in the Colony of Queens

land, are bound in the sum of , and youand in the sum of each, that youappear (f) . and do not depart from the said Court without leave; andunless you, the said personally appear and plead, and take your trialaccordingly, the recognizance entered into by you and your sureties will forthwith be put in suit and enforced against you and them.

Dated this day of 18 .(Signed) E.F., J.P.

* This form does not appear in the Schedule to the Rules. It has been framed in pursuance of r. 14. t As in the conditions of the recognizance.


*108.— Warrant of apprehension. . .To all constables and other Her Majesty’s officers and ministers of the peace within our

Colony of Queensland, whom these presents may concern.Whereas it is certified to me by that stands charged

by information this day filed against in the said Court, by Her Majesty sCrown Prosecutor for the District Court of Queensland, heM at e and thatthe said hath not, as yet, appeared or pleaded to the said information :

These are, therefore, to will and require, and in Her Majesty’s name strictly to charge and command you and every of you, on sight hereof, to apprehend and take the body of the said and bring before the Judge of the said District Court, iftaken in or near , and if elsewhere, before some Justice of the Peace nearto the place where shall be herewith taken, to the end thatmay become bound with sufficient sureties for personal appearanceto answer the said information ; or, in case the said shall neglect or refuseto become bound as aforesaid, to the end that may be committed to HerMajesty’s gaol at there to remain until shall answer the saidinformation, or shall otherwise be discharged by due course of law. Hereof fail not, at your peril.

Given under my hand and seal, at this day ofin the year of our Lord one thousand eight hundred andAt the instance of Her Majesty’s 1

said Crown Prosecutor. J


t a. t'

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9 .142 SCHEDULE OF FORMS.

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*111. —Information.In the Year of the Reign of Our Sovereign Lady

Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith.

Queensland, to Wit.Be it remembered, That , Esquire, Her Majesty’s Crown Prosecutor

and Grand Jury for the District Court of the Colony of Queensland, holden at ,who prosecutes for Her Majesty in this behalf, being present in the District Court at now here, on the day of , in the year of ourLord one thousand eight hundred and , at , in the Colonyaforesaid, informs the said Court that on the dayof , in the year of our Lord one thousand eight hundred and ,at , in the Colony aforesaid,

. * *112.—Return to warrant.Return to Warrant No. for under Plaint No. from the

bailiff of the District Court of Queensland held at to the bailiff of theDistrict Court of Queensland held at

Gross amount levied or received

Payments in deduction ...

Man in possession days

For fees of sale on £ ...

For rent to landlord ..............

Extra possession under claim days (actual cost).

Costs of interpleader ordered by Court to be deducted out of the proceeds .....................................

Net amount paid to the credit of the execution creditor ... M

(Signed) G.H., Bailiff.

I hereby certify that the above charges are correct, and that the sum of was paid into Court this day of 18 .

Registrar of the District Court of Queensland held at

*113.—Certificate of forfeiture of recognizance.In the District Court o.f Queensland,

Held atThis is to certify to the Attorney-General that at the District Court this day held

at the recognizances hereunto annexed were forfeited, and were then andthere caused to be estreated.

Given under my hand this day of a*l>. 18 .Judge.



Schedule of Books for Registrars and Bailiffs. J.—Plaint Book.

Dat

e. o

Jg‘■3a1P-i

| Res

iden

ce.

| Atto

rney

.

Def

enda

nt.

J Res

iden

ce.

©1◄

1 Cau

se of

{

| Action

. |

Am

ount

clai

med

.

Fee f

orPl

aint

, &c.

Fee f

or Se

rvi

ce of

Su

mm

ons.

Fee f

or S

ub

poen

a.

Fee f

or S

er

vice

of

| Subpo

ena.

Am

ount

paid

into

Cour

t bef

ore

Judg

men

t.N

otic

e of

Def

ence

whe

n fil

ed.

Not

ice r

equ

iring

Ju

ry w

hen

filed

.

£ s. d. £ 8. d. £ s. d. £ 8. d. £ s. d. £ 8. d. |i ! 1I ! 1 I

II.—Minute Book.

o

Plai

ntiff

.

Atto

rney

.

Def

enda

nt.

Atto

rney

.

Caus

e of

Act

ion.

Am

ount

clai

med

.

Spec

ial

Def

ence

.

By w

hom

Ju

ry

requ

ired.

Judg

men

tfo

r who

m.

Am

ount

ofJu

dgm

ent.

Costs

.

Ord

er.

App

eal.

New

Tria

l.

£ s. dJ \ 1

£ s. d. £ 8. d.

i | 1 11 ' 1 1 1

III.—Judgment Book.

No.

of

Judg

men

t.

Dat

e whe

n sig

ned.

No.

of Plai

nt.

Def

enda

nt.

Plai

ntiff

.

Dat

e whe

n _

Judg

men

tde

liver

ed.

Nat

ure o

f Ju

dgm

ent.

Ver

dict

.

Deb

t or

Dam

ages

.

Costs

. Remarks.

£ s. d. £ 8. d.

IV.—Debt Attachment Book.

No. of Plaint.

i

Plai

ntiff

. ! I

Def

enda

nt. 1 i

Gar

nish

ee. ATTACHMENT.

Am

ount

to

be

atta

ched

.

Am

ount

reco

vere

d.

Whe

nre

cove

red.

To w

hom

pa

id.

Whe

n pa

id.

WhenIssued.

ByWhom.

No. Year. £ 8. d. £ 8. d.

V.—Execution Book.

No.

of Pl

aint

.N

o. of War

rant

.

Day

and

Hou

r on

whi

ch

War

rant

was

ap

plie

d fo

r.

£

9•a£ D

efen

dant

.

, Res

iden

ce.

Am

ount

of

Deb

t, or

D

amag

es

and

Costs

.

Exec

utio

nFe

es.

Mile

age.

Am

ount

pai

d in

to C

ourt.

Dat

e of

Arre

st or

Le

vy.

Min

ute o

f Re

turn

.

Day. Hour, h. m.

£ 8. d. 1 £ 8. d.

£ 8. d. £ 8. d.


VI.—Foreign Execution Re-issued Book.

No.

of Plai

nt.

No.

of

War

rant

.Co

urt f

rom

whi

chW

arra

ntIs

sued

.

Whe

nre

ceiv

ed.

Plai

ntiff

.

Def

enda

nt.

Resid

ence

.

Am

ount

tohe

levi

ed.

Whe

nW

arra

ntha

nded

toBa

iliff.

Resu

lt of

Levy

.

Dat

e of

Levy

.

Dat

e of

Retu

rn to

Fore

ign

Cour

t.

Min

ute o

fRe

turn

.

£ 8. cl. £ s. d.

VII.—Bailiff's Warrant Book, for entry of what has been done under Process ofExecution.

No.

of Pl

aint

.

No.

of E

xecu

tio

n.

Def

enda

nt.

Exec

utio

n.

Am

ount

to h

e | levie

d.

Fees

for m

akin

g le

vy.

Fees

for p

osse

ssio

n.

Gro

ss am

ount

le

vied

.

Rent

pai

d.

Costs

of di

stre

ss.

Costs

allo

wed

on

Inte

rple

ader

.

Am

ount

pai

din

to C

ourt.

Whe

n pa

id. If not

executed, why not ?

£s.d. £s.d. £s.d. £8. d. £8. d. £s.d. £8. d. £s. d.

• In the District Court of holden at

VIII.—Bailiff's Return of Summonses on Plaints issued to him, returnable at Court to be holden on the day of 18 .

No. of Plaint. Plaintiff. Defendant. Mode of Service.

D 20 ........... John Smith ........... James Brown........... On defendant’s wife.D 21 ........... James Wilks ........... John Head ........... On defendant’s landlady.D 22 ........... Abraham Furness ... Richard Brook........... House closed to prevent service;

summons affixed to the door.D 24 ........... Richard Brindley ... James Smith ........... Not served.

Dated this day of 18 .Bailiff.

IX.—Return to Warrant No. for under Plaint No. from the Bailiff ofthe District Court of to the Bailiff of the District Court of

Gross amount levied or received .....................................Payments in deduction .........................

Man in possession (5) days................................................For fees of sale on £ .......................... .............For rent to landlord...........................................................Extra possession under claim days (actual costs)

£ s. d. £ s. d.

Costs of Interpleader ordered by Court to be deducted out of the proceeds

Nett amount paid to the credit of the Execution Creditor £

# A.B., bailiff.I hereby certify that the above charges are correct, and that the sum of was paid

into Court this day of 18 .C. D.,

Registrar of the District Court of


X.—Order Book.

No. of Plaint. Plaintiff. Defendant. Subject of

Order.When

received.On whom served.

When served or posted.

Scale of Counsel’s and Solicitor’s Fees on Taxation as between Party and Party.

Fees and Charges allowed on Taxation of:Plaintiff’s Costs, when amount recovered— Defendant’s Costs, when amount claimed—

Exceeds£10

and does not

exceed£30

Exceeds£30

and does not

exceed £50.

Exceeds£50

and does not

exceed £100.

Exceeds £100

and does not

exceed £150.

Exceeds £150

and does not

exceed£200.

Exceeds£200,

£ s. d. £ d. £ d. £ d. £ 8. d. £ s. d.

Actions—In all actions, except for damages,

where the amount claimed exceeds, but the amount recovered does not exceed, £10, the plaintiff shall, on taxation as between party and party, be entitled only to such costs as he would be entitled to had he claimed for under £10, unless the Judge shall otherwise order.

Affidavit, Instructions for—Not being an affidavit of service

or made by the solicitor or hisclerk ........................................ 0 68

Drawing per folio of 72 words orfigures ........................................ 0 10

Copying per folio of 72 words orfigures ........................................ 0 0 6

Attending deponent to be sworn, except when made by bailiff or other official .............................0 6 8

0 6 8

0 10

0 0 6

0 6 8

0 10

0 0 6

0 6 8 0 6 8

0 6 8

0 10

0 0 8

0 6 8

0 6 8 0 6 8

0 10 0 10

0 0 8 0 0 8

0 6 8 0 6 8

Appeal or New Trial—Instructions for appeal or applica- _

tion for new trial (where no brief) 0680680 6 8 Attendance at Court or Chambers

when application is made by the solicitor for the party or by a partner or clerk of such solicitoror his firm ......................... 2 202 202 20

(Or such fee as the Judge may order.)

0 10 6

2 2 0

0 10 6 1 1 0

2 2 0 2 2 0

Application—Instructions to make any inter

locutory, or other application to the Court not herein otherwiseprovided for (where no brief) ... 0 680 680 68

Attendance when application is made by the solicitor for the party or by a partner or clerkof such solicitor or his firm ... 1 101 101 10

0 6 8

2 2 0

0 6 8

2 2 0

0 10 6

3 3 0

Arbitration—The allowances for costs of arbitra

tion are to be in the discretion of the Registrar, subject to i review by the Judge. |


Scale of Counsel’s and Solicitor’s Fees on Taxation as between Party and* Party—continued.

F]]

Exceeds£10

ees and CPlaintiff’s < Defendant’

Exceeds£30

!haiiges a]Dosts, whe s Costs, w]

Exceeds£50

lowed on'n amount ben amour

Exceeds£100

Taxation crecovered- it claimed-

Exceeds£150

>f:

and does and does and does and does and does Exceedsnot

exceed£30.

notexceed

£50.

notexceed£100.

notexceed£150.

notexceed£200.

£200.

Attendance— .In Court when action set down

£ s. d. £ s. d. £ s. d. £ s. d. £ s. d. £ s. d.

for hearing, but not called on ... In Court to apply for judgment

0 6 8 0 6 8 0 6 8 0 6 8 0 6 8 0 6 8

in undefended action ..............In Court or Chambers instructing

counsel or solicitor acting as advocate:—

{a) On appeal or application

0 10 6 0 10 6 0 10 6 110 110 110

for new trial..........................(6) On any interlocutory or

0 6 8 0 10 6 0 10 6 0 13 4 110 110

other application.............. 0 6 8 0 6 8 0 6 8 0 13 4 0 13 4 0 13 4(c) On examination de bene esse 0 13 4 0 13 4 0 13 4 110 110 110(<Z) On trial of defended action

Any necessary attendance at the office of the Registrar, or on the opposite party, or on counsel or solicitor acting as advocate not

110 110 110 2 2 0 2 2 0 2 2 0

herein otherwise provided for ...(The Registrar will not allow more

than one charge for different attendances which should, in his opinion, have been made at the same time.)

Brief— .Instructions for—to counsel or

solicitor other than the solicitor or member of the firm of solicitors for the party:—

(a) On appeal or application

0 3 4 0 3 4 0 6 8 0 6 8 0 6 8 0 6 8

for new trial..........................(6) On any interlocutory or

other application in Court

0 6 8 0 6 8 0 6 8 0 10 6 0 10 6 110

or Chambers .............. 0 6 8 0 6 8 0 6 8 0 6 8 0 6 8 0 10 6(c) On examination de bene esse 0 10 6 0 10 6 0 10 6 110 110 110(d) On trial of action ...

In latter case, in discretion of110 2 2 0 3 3 0 5 5 0 7 7 0 10 10 0

Registrar, not to exceed ...Drawing any necessary, including

proofs of evidence, per folio of

3 3 0 5 5 0 7 7 0 10 10 0 15 15 0 21 10 0

72 words or figures ..............Copying, with all necessary docu

ments to accompany, per folio

0 10 0 10 0 10 0 10 0 10 0 10

of 72 words or figures ..............Attendance therewith on counsel

0 0 6 0 0 6 0 0 6 0 0 8 0 0 8 0 0 8

or solicitor acting as advocate...

Copying,—Any document not herein other

wise provided for, per folio of 72 words or figures ... ...

Costs—Drawing, per folio of 72 words or

0 3 4 0 3 4 0 6 8 0 6 8 0 6 8 0 6 8

0 0 6 0 0 6 0 0 6 0 0 8 0 0 8 0 0 8

figures .....................................Copying, per folio of 72 words or

0 0 8 0 0 8 0 0 8 0 0 8 0 0 8 0 0 8

figures ..................................... 0 0 6 0 0 6 0 0 6 0 0 6 0 0 6 0 0 6Attending taxation ..............

Drawing—Any necessary document not

herein otherwise provided for,

0 6 8 0 6 8 0 6 8 0 6 8 0 6 8 0 6 8

per folio of 72 words or figures... 0 10 0 10 0 10 0 10 0 10 0 10


Scale of Counsel’s and Solicitor’s Fees on Taxation as between Party andParty—continued.

Endorsement—Of claim or summons, if special...

Examination de bene esse— Instructions for (where no brief)... Attendance when examination

conducted by the solicitor for the party or by a partner or clerk of such solicitor or his firm

(Or such fee as the Judge may order.)

Fee on Brief—To counsel or solicitor other than

the solicitor or member of the firm of solicitors for the party—

(a) On appeal or applicationfor new trial ..............

(Or such further sum as the Judge may order.)

(5) On any interlocutory or other application in Court or Chambers .........................

(c) On examination de bene esse (Or such further sum as the Judge

may order.)(d) On trial of defended action(e) Where trial extends over

one day (provided the matter occupies two or more hours of that day) for every succeeding day, unless the Judge otherwise orders ...

Instructions—To sue or defend .........................For set off or counterclaim ...

Inspecting Documents—When in possession of opposite

party .....................................Or per hour.....................................

Interrogatories—Instructions for .........................Drawing, per folio of 72 words or


figures .....................................

Letters—Letter before action ..............Any necessary letter other than

that which is provided for in any allowance for instructions...

Mileage—To be allowed for service of any

necessary document other than plaint and annexed summons or any writ or warrant sum paid not exceeding per mile..............

Fees and Charges allowed on Taxation of: Plaintiff’s Costs, when amount recovered— Defendant’s Costs, when amount claimed—

Exceeds£10

and does not

exceed £30.

£ s. d.

0 3 4

0 10 6

2 2 0

3 3 0

110 2 2 0

3 3 0

2 2 0

0 0 8 0 0 8

0 0 8 0 0 8

0 0 8

0 10

0 0 0

0 2 0

0 2 0

0 10

Exceeds£30

and does not

exceed £50.

£ s. d.

0 3 4

0 10 0

2 2 0

3 3 0

110 2 2 0

5 5 0

3 3 0

0 0 8 0 0 8

0 0 8 0 0 8

0 G 8

0 10

0 0 0

0 2 0

0 2 0

0 10

Exceeds£50

and does not

exceed £100.

£ s. d.

0 3 4

0 10 0

2 2 0

3 3 0

110 2 2 0

7 7 0

5 5 0

0 0 8 0 0 8

0 0 8 0 0 8

0 0 8

0 10

0 0 0

0 2 0

0 2 G

0 10

Exceeds £100

and does not

exceed £150.

£ S. d.

0 5 0

110

2 2 0

3 3 0

2 2 0 2 2 0

10 10 0

7 7 0

0 0 8 0 G 8

0 0 8 0 6 8

0 0 8

0 10

0 0 8

0 3 0

0 2 6

0 10

Exceeds £150

and does not

exceed £200.

£ s. d.

0 5 0

110

2 2 0

3 3 0

2 2 0 2 2 0

10 10 0

7 7 0

0 0 8 0 0 8

0 6 8 0 0 8

0 0 8

0 10

0 0 8

0 3 G

0 2 0

0 10

Exceeds£200.

£ s. d,

0 5 0

110

2 2 0

3 3 0

3 3 0 2 2 0

15 15 0

10 10 0

0 13 4 0 13 4

0 6 8 0 6 8

0 6 8

0 10

0 0 8

0 5 0

0 3 6

0 10



Pees and Charges allowed on Taxation ol:Plaintiff’s Costs, when amount recovered— Defendant’s Costs, when amount claimed—

Notices—Preparing notice to admit and one

copy .....................................If exceeding 4 folios, per folio of

72 words or figures .............Preparing notice to produce ...If exceeding 4 folios, per folio of

72 words or figures ..............Preparing any other notice ...

Exceeds£10

and does not

exceed £30.

Exceeds£30

and does not

exceed £50.

Exceeds£50

and does not

exceed £100.

Exceeds £100

and does not

exceed £150.

Exceeds £150

and does not

exceed£200.

Exceeds£200.

£ d. £ d. £ d. £ s. d. £ s. d. £ d.

0 3 0

0 0 6 0 3 0

0 0 6 0 16

0 3 0

0 0 6 0 3 0

0 0 6 0 16

0 3 0

0 0 6 0 3 0

0 0 6 0 16

0 3 4

0 0 8 0 3 4

0 0 8 0 16

0 3 4

0 0 8 0 3 4

0 0 8 0 16

0 3 4

0 0 8 0 3 4

0 0 8 0 16

Order—Drawing, per folio of 72 words or


figures ... .........................Attending issuing.........................

0

00

1 0 1 0

0 6 0 0 6 3 4 0 3 4

0

00

1 0

0 6 3 4

0 10 0 10 0 1

0 0 8 0 0 8 0 6 8 0 6 8

0 0 8 0 6 8

Perusals—Perusing any necessary letter

other than that whicn is provided for in any allowance forinstructions ......................... 0

Perusing any other necessary document other than plaint summons or document which is provided for in any allowance for instruction per folio of 72 words or figures......................... 0

1 6

0 6

0 16

0 0 6

0

0

1 6

0 6

0 3 4

0 0 8

0 3 4 0 3 4

0 0 8 0 0 8

Plaint—Preparing plaint and one copy for

commencement of action ... 0 4 6Or per folio of 72 words or figures,

not exceeding 3 folios .............. 0 16Attending, issuing same and an

nexed summons ............. ... 0 3 4

0 4 6

0 16

0 3 4

0 4 6

0 16

0 6 8

0 5 0

0 18

0 6 8

0 5 0

0 18

0 6 8

0 5 0

0 18

0 6 8

Receiving Money out of Court— Preparing necessary authority,

obtaining signature thereto, and attending . Registrar therewith and receiving money .............. 0 6 8 0 6 8 0 6 8 0 6 8 0 6 8 0 6 8

Service—Of any necessary document, not

being plaint and annexed summons, warrant, or writ..............

(The Registrar will not allow more than one charge for service of different documents which should, in his opinion, have been served at the same time.)

0 2 6 0 2 6 0 2 6 0 3 4 0 3 4 0 5 0

SUBPfflNA—Preparing writ of subpoena and

praecipe ... .........................Attending issuing.........................

0 3 6 0 3 6 0 3 4 0 3 4

0 3 6 0 6 8

0 3 6 0 6 8

0 3 6 0 6 8

0 3 6 0 6 8

Summons—Preparing summons to attend at

Judge’s Chambers .............. 0Or per folio of 72 words or figures

when exceeding 4 folios..............0

3 0 0 3 0

16 0 16

0 3 0

0 16

0 3 4 0 3 4

0 18 0 18

0 3 4

0 18



Fees and Charges allowed on Taxation of:Plaintiff’s Costs, when amount recovered— Defendant’s Costs, when amount claimed—

Trial of Action—Instructions for trial of action

when defended (where no brief) Or, in discretion of Registrar, not

exceeding....................................Attendance on trial when case

conducted by the solicitor for the party or by a partner or clerk (being a solicitor) of suchsolicitor or his firm ..............

Where trial extends over one day (provided the matter occupies two or more hours of that day), for every succeeding day, unless the Judge otherwise orders ...

Exceeds£10

and does not

exceed £30.

Exceeds£30

and does not

exceed£50.

Exceeds£50

and does not

exceed£100.

Exceeds £100

and does not

exceed £150.

Exceeds £150

and does not

exceed £200.

Exceeds£200.

£ s. d.

110

3 3 0

2 2 0

2 2 0

£ s. d.

2 2 0

5 5 0

3 3 0

2 2 0

£ s. d.

3 3 0

7 7 0

5 5 0

3 3 0

£ s. d.

5 5 0

10 10 0

5 5 0

<£ s. d.

7 7 0

15 15 0

7 7 0

5 5 0

£ s. d.

10 10 0

21 10 0

10 10 0

7 7 0

Warrant or Writ—Preparing any warrant or writ not

herein otherwise provided forand one copy ......................... 0 460 460 4G 0 50

Attending issuing......................... 0 340 340 68 0 680 5 0 0 6 8

0 5 0 0 6 8

Writ of Fi. Fa. or Execution— Costs to be endorsed on warrant,

exclusive of Court or other fees 0 10 6 0 10 6 0 10 6 110 110 110

Witnesses’ Expenses per Day—Constables.................................... 0 5 0Labourers .................................... 0 7 6Clerks, Tradesmen, and Farmers 0 10 6Police Inspectors and Master

Tradesmen ......................... 0 15 0Gentlemen, Professional Men,

Accountants, Auctioneers, andMerchants....................................110

Females (according to station), 7s. to 15s.

Witnesses called as experts, £1 Is. to £5 5s.

(As the Registrar may consider reasonable.)

To any witness living more than one mile from the Court, fare by railway, coach, steamer, or other conveyance, or Is. per mile one way, in the discretion of the Registrar.

To any other witness not included in the above, such allowance per day as the Registrar may consider reasonable.

0 5 0 0 5 0 0 7 6 0 7 6 0 10 6 0 10 G

0 15 0 0 15 0

110 110

0 5 0 0 7 6 0 10 6

0 5 0 0 7 6 0 10 6

0 5 0 0 7 6 0 10 6

0 15 0 0 15 0 0 15 0

110110110

A.Abandonment of excess .............................................Abatement of Action. See also Stay.

in proceedings by husband and wife .............on insolvency........................................................on death of party, when it ensues ... ... ...

Absence, See also Appearance.of judge ........................................................

deputy appointed on ... ............. ...another judge may act on ........................Supreme Court judge hears final judgment

summons in.............................................from jurisdiction—

of witness........................................................of defendant, attachment of goods on proposedattachment of debtor when proposed.............service of summons on defendant in case of

proposed absence ................................unclaimed money in court belonging to persons

beyond the seas.............................................Accounts of court fees, and fines and moneys.............Acknowledgment of money deposited in or paid into courtAct, The, meaning of term ................................Action. See also Causes of Action.

meaning of term .............................................against officer of court ..................................by husband and wife.............................................by insolvent ........................................................one of several persons jointly liable may be sued...

. by and against executors and administrators. See Executors.

by infant ........................................................for disobeying a subpoena ..................................struck out where no jurisdiction ........................

Adjournment—of court where judge absent ........................of action—

on insolvency of plaintiff ............. ...by judge on ground of interest .............where witness neglects subpoena .............power to judge as to ............ . .............pending certiorari or prohibition ... ...where service of summons delayed ............where, though defendant knows of summons, he

does not appear ............ ............where amended particulars ......................where refusal to permit inspection of document for proof of document produced from proper

custody ... ... ......................by consent... ... ................................no order for, to be served save by direction of

judge............ .............. ............for omission to comply with practice ............form of order for..........................................

Administrator. See Executors and Administrators.

99

9394 97

1219

19,20

83

105136170

42

19532

11,/17 2

345, 46

939495

97103124

12

9410110411215343

5670

117

118119

120 121

/56

38

363795 ^

56

6,7

32

405471

90

819

87,110 86

213, 14

3637 37

373946

5

373940 43 6590

9192 96

9696

9697

122

The lines in italics refer to the Rules and Forms.

154 INDEX.

— Section, Rule, or Form. Page.

Admission—notice to admit document ... ... ... ... 116 96of claim by defendant—

judgment upon................................................... 73, 74 27,28where plaintiff does not appear at trial ... 109 42time for delivery of ............... ... ... 77 93form of ... ... .............. ... ... / 21 111form of affidavit of signature to ... ... / 22 111form of notice to plaintiff to admit ... ... / 23 111form of notice of admission of part of claim ... / 24 111

Affidavit—of plaintiff where defendant confesses debt ... 73 27of plaintiff of agreement between parties as to

amount of debt, etc............................................... 74 28on final judgment summons—

of plaintiff ................................................... 77 29to accompany summons, form of ... ... / 29 113of defendant ....................................... ... 86 33when to be filed ... ... ... ... ... 81 93

for examination de bene esse ... ............... ... 105 40form of ... ... ... ... ... ...

of plaintiff before execution issues, !f no notice of/50 120

defence filed ................................................... 107 41before whom sworn................................................... 119 45of defendant that plaintiff not able to pay costs in

Supreme Court................................................... 130 49for attachment of goods of defendant ... ... 136 54for order in lieu of mandamus to judge or officer... 151 63for garnishee order ................................................... 182 76meaning of term ... ... ... ... ... 2 86of service of summons in foreign district ... ... 23 88of bailiff, verifying list of summonses on plaints

issued to him ... ... ... ... .!. 24 88of plaintiffverifying service of summons or other

wise ... ... ... ... ... ... 25 88for extending time of service of summons ... ... 42 90where action against a firm ... ... ... ... 85 93how intituled, etc. ... ... . ... ... 128 97drawn in first person, paragraphed, etc. ... ... 129 97to state description and residence of deponent 130 97when confined to facts witness can prove ... ... 131 . 97to show means of knowledge ... ... ... ... 132 97joint affidavits ... ............... ... ... 133 98stamping and filing ........................... ’•* ... 134 98note appended, showing on ichose behalf it is filed... 135 98by illiterate or blind person ... ... ... ... 136 98used, though defects in ... ... ... ... 137 98before whom not to be sworn............... ... ... 138 98interlineations, alterations, erasures, etc., in ... 139 98service of copy of ... ............... ... ... 140 98documents referred to as exhibits in ... ... 141 98where doubts as to authenticity of copy of exhibit... 142 98in support of application to set aside award ... 163 100in chamber business................................................... 185,187,188 102of justification—

by sureties ... ............... ... ... 190 102form of ............... ........................... ... /19 110

of signature to admission of debt ... ... ... f 22 111on agreement as to amount of debt, form of / 25 112

of debt, form of ... ............... ............... / 27 112of increase, form of................................................... f 63 124of no plea or defence filed, form of ... ... ... / HD 108


INDEX. 155

------ ' Section, Rule, or Form. Page.

Affidavit—continued. of service—

of ordinary summons ... .......................... f 11a 108of special summons and plaint ... ............... f Hb 108of summons by bailiff ... ... ... ... / He 108

Affirmation, Statutory—included in “ Affidavit” ... ... ... ... 2 86included in “ Oath” ... ... ... ... ... 2 86

Agent—officer of court not to act as ... ............. . ... 42, r 12 12, 87no privilege to exempt him from provisions of Act 47 14may appear by special leave....................................... 48 14not to receive remuneration ... ... ............... 48 14may serve subpoena ... ............... ............... 102 39may consent to payment by instalments ............... 138 53may agree not to appeal ...................................... 148 62of landlord may claim rent in arrear, when goods

seized in execution ....................................... 169 70may sign notice of appeal ............... ............... 165 100

Agreement—between parties as to amount of debt and condi

tions of payment—generally................................................. ' ... 74 28may include costs.,, ............... ............... 78 93form of ... ... ............... ............... / 25 112form of affidavit of signature as to amount of

debt ... ... ... ... ... ... /26 112not to appeal, power to make ........................... 148 62form of ... ... ... ... ... ... ... /76 129

Allowance—retiring, of judge ................................................... 22 7for travelling expenses. See Travelling Expenses.

Alteration—of place for holding court ...................................... 6 3in affidavit ... ............... ........................... 139 98

Amendment—power of judge as to................................................... 131 50on appeals to District Court...................................... 158 67of particulars ... ... ... ... ... ... 70 92none, on misjoinder of parties ... ... ... 82, 83 93of parties—

where person other than defendant was intendedto be charged and admits the fact ... 87 94

where person sued improperly in representative character ............... .............. 88 94

where person ought to have been sued in representative character............... .............. 89 94

where plaintiff's name in summons, etc., isinsufficient or incorrect ... ............... 90 94

where defendant’s name, etc., in summons isinsufficient or incorrect ... .............. 91 94

where wife improperly joined or omitted ... 92 94where too many plaintiffs improperly joined ... 93 94where a plaintiff improperly omitted ... ... 94 94where too many defendants improperly joined 95 95where some defendants not served ............... 96 95

Annuity to judge ... ... ....................................... 22 7Apparel, when exempt from execution........................... 166 69


186 INDEX.

------- Section, Rule, or Porm. Page.

Appeal—struck out where no jurisdiction ........................... 124 46from District Court to Supreme Court—

when it lies ................................................... 144 59when judge to take note of questions of law ... 145 61when copy of judge’s note to he given............... 146 62jurisdiction of Supreme Court........................... 147 62agreement not to appeal ... ... ... 148 62only in manner provided hy this Act............... 149 62application for prohibition heard as an appeal 152 64

time jor notice of and giving security ... ... 164 100what notice of to contain ; service of ... ... 165 100notice ofjudgment of Court of Appeal ... ... 166 100order for new trial on.., ... ... ... ... 167 100judgment entered according to judgment of Court

of Appeal ... ... ... ... ... ... 168 101form of notice of ... ... *** ... ... / 73 128forms of bond ... ... ... ... ... ... #74, 75 128form of agreement not to appeal ... ... ... / 76 129to District Court—

evidence on appeal from Small Debts Court... 156 66from Small Debts Court, costs on ............... 157 67costs and witnesses’ expenses ... .............. 157 67from conviction or order of justices, power of

amendment ... ....................................... 158 67generally............................................................... 159 67

Appearance—at what courts defendant not compellable to appear 60 20at trial—

of both parties, proceedings where ............... 108 42default in—

of plaintiff ................................................... 109 42costs on ... ... ... ............... ... 122 97form of order for costs on ... ... ... /5 5 122of both parties ... ....................................... 109 42of defendant ................................................... 110 42of executor or administrator ... ... ... 101, 104 95

of judge on application for prohibition ............... 152 64Appointment—

of judge ............................................................... 9 4for whole colony ....................................... 11 4

of deputy judge ... ........................... ... 19 6of bailiff and assistants ....................................... 36 10

Appraisement and sale, poundage for, where landlordclaims arrears of rent... ........................... ... 169 70

Apprehension of witness for non-attendance—at trial............... ................................................... 104 40at arbitration................................................... ... 135 54form of warrant of ....................................... ... f 49 120

Arbitration—judge may refer to ................................................... 134 53power to compel attendance of witnesses............... 135 54when order to refer, to be made ............... ... 161 100notice of application to set aside award ... ... 162 100such application to be supported by affidavit ... 163 100form of order of reference ... ... ... ... /6 8 125

Arrears of rent. See Land.Arrest. See Apprehension.Assignment—

of districts to courts................................................... 6 3of court to judge ................................................... 10 4


INDEX. 157

Section, Rule, or Form. Page.

Assistant Bailiff—appointment of, etc............................. ......................... 36 10bailiff responsible for ....................................... 36 10may act after death or removal of bailiff............... 37 11liow paid ............... *....................................... 40 11

Asylum, service on person in ... ... ... ... 53 90Attachment—

for contempt—for disobedience of order in lieu of mandamus 151 63generally............................................................... 198 82cost of warrant of commitment ... ... ... 147 99form of warrant ... ... ... ............... / 97 137

of debts—examination of judgment debtor as to debts

due to him.......................... ............... 181 76power to make garnisliee order ............. . 182 76service or notice of order ... ............... 183 78execution against garnishee .......................... 184 78trial of liability of garnishee ........................... 185 78lien or charge of third party on debt............... 186 78trial of claim of third person ... .. ... 187 79discharge of garnishee....................................... 188 79registrar to keep debt attachment book ... 189 79costs ............................................................... 190 79time for service of summons on garnishee or

third person, or any other person... ... 182, 183 102form of order for examination of judgment

debtor ................................................... /94 136forms of garnishee order... ... ... ... #95, 96 136,137form oj debt attachment booh ... ............. fir- 145

of goods—generally............................................ . ... 136 54form of warrant ... ... ... ............ /6 9 125

Attendance of jurors .............................................. 28 8Attorney-General, a Crown Law Officer ............. 3 2Attorney. See Solicitor.Auctioneer’s license, bailiff need not take out............. 39 11Audit of registrar’s accounts ... ... ............. 32 9Award of arbitrators. See Arbitration.

B.Bail by defendant on issue of warrant o£ attachment

and seizure ............................................. 136 54recognizance of form of ... ... ... ... 106 140

Bailiff. See also Assistant Bailiff; Service.existing ........................................................ 4 3when he may adjourn court................................... 12 5appointment of, etc. ... ............. ............. 36 10suspension of........................................................ 36 10duties of—

generally........................................................ 38 11give security .............................................. 43 12endorse fact of service................................... 65 25on issue of warrant of attachment and seizure 136 54in action for recovery of possession of land ... 137,139 55,57hold securities seized .................................. 167 69as to custody of goods taken in execution ... 168 70to sell goods ............................................. 169 70execute warrant of commitment ............. 170 71receive amount necessary for discharge of

person attached .................................. 171 72


158 INDEX.


Bailiff—continued.duties of—continued.

in execution beyond district ... ... ... 173 72execute warrants in order in which delivered... 174 73serve orders for payment of money, etc'. ... 17 87keep books and make returns ... ... ... 20 87attend office of registrar... ... ... ... 21 87endorse summonses ... ... ... ... 22 88service of summonses in foreign district ... 23 88deliver to registrar, list of summonses on

plaints issued to him ... ... ... 24 88when service of summons undertaken by

plaintiff ... ... ... ... ... 25 88give notice to plaintiff of non-service of

summons ... ... ... ... ... 26 88make entries in order book ... ... ... 27 88make entries in warrant book ... ... ... 28 88give reasonable information to suitors as to

warrants ... ... ... ... ... 28 88pay moneys to registrar and file process ... 29 88as to warrant not executed in foreign district 30 88as to warrant executed in foreign district ... 31 88deliver notice when levying execution ... ... 170 ' 101sell goods by public auction ... ... ... 172 101as to sale of goods taken in execution ... 172,173 101where claimant in interpleader has made no

deposit in court ... ... ... ... 181 102not required to take out auctioneer’s license ... 39 11salary of, and fees ............................................. 40, Sch. IV. 11,85answerable for escape and neglect to levy execution 41 12not to act as registrar ................................... 42 12inquiry into misconduct of ... ... ... ... 44 13proof of service by ... ... ... ... ... 66 25affidavit of service of summons by, form of ... ’ ... f 11c 108may serve subpoena................................... * ... 102 . 39warrant sufficient to justify entry on land ; time

of entry........................................................ 142 58warrant of execution directed to ... ................ 161 68may take land under execution ........................ 162 68or publish notice of sale in lieu of levy ............. 163 68may seize goods under execution ... ... ... 166 69tender of payment to ... ... ... ... ... 178 74of foreign district, when summons transmitted for

service to ... ... ... ... ... ... 7 87copy summons, for endorsement, to be delivered to ... 9 87particulars of chattels claimed in interpleader may

be delivered to ... ... ... ... ... 177 101applies for issue of interpleader summons ... ... 178 101costs of, where interpleader summons decided against

claimant ... ... ... ... ... ... 180 102Ballot, jury in civil action chosen by ........................... 116 44Bank-notes included in “goods” ... ............. 3 2Barracks, service on soldier ... ... ... ... 50 90

Barrister—when he may be judge ... ... ”* ... 9 4judge not to practise as ................................... 15 5may be deputy judge ................................... 19 6no privilege to exempt him from provisions of Act 47 14party may appear by ... ... ... ... ... 48 14fees to ... ... ............... ... ... ... 122 46may consent to payment by instalments ... ... 133 53service of judgment summons on ... ... ... 64 91


INDEX. 159

Barrister—continued.may sign notice of appeal ... ..notice to, in lieu of party ... ..scale offees to ... ... ... ..

Bedding, when exempt from execution Bequest, no jurisdiction as to validity of

Section, Rule, or Form.

165 196

166 56

Page.

100103

6917

Bills of Exchange—included in “ goods ”................. ..............................specially indorsed summons where debt arises onsplitting debt by giving , ............................................taken in execution .........................................................parties to, may be joined as defendants ... ...

Blind person, affidavit of ... ... ... ...Bond. See also Security.

specially indorsed summons where debt arises on splitting debt by giving ............................................

Books. See also Jury; Debt Attachment Book; Minute Book; Foreign Execution Reissued Book; Order Book; W arrant Book,

of court—evidence of entries in ............................................registrar to keep................. ... .................officer of court not to sign, on behalf of suitors bailiff to keep ... ... ... ... ...

Brisbane—final judgment summonses returnable at................District, time for—

service of summons in ... ... * ... .... delivery of notice of defence in... ... ...

notice of defence on special summons ... ...paymen t into court before judgment in... ...confession of judgment in ... ... ...return of judgment summons in ... ...notice of demand of a jury in ... ... ...giving a notice of appeal and security in ... service to summons to garnishee in ... ...

364, Sch. II.

100 .. 167 84

136

64, Sch. II.100

344

1220

79

426569747779

127164182

222, 84

38 69 93 98

22, 84 38

10868787

32

9091929293 93 97

100102

C.Cancellation of stamps on documents ... Capital felony, no jurisdiction as to ... Ca. Sa. See Execution against the Person.

19 8750 15

Causes of Action—joinder of ... ... .splitting demands ... .splitting debt by giving bills

9899

100

Certificates—to be sealed ........................................................of registrar, evidence of minutes of proceedings of

court under .............................................of Supreme Court judge that plaintiff entitled to

costs when otherwise not entitled .............to affidavit of illiterate or blind person ... ...as to document referred to in affidavit as an exhibit of deposit, form of ... ... ... ... ...of result of hearing on mittimus, form of ... ...for discharge of defendant from custody, form of ... of forfeiture of recognizance, form of ... ...

8

34

127,128 136 141

/17 /65 /86

/113

383838

4

10

479898

110125133144


160 INDEX.


Certiorari—judgment, etc., to be removed by, only as provided

62by Act .............................................................. 149when action may be removed by ... ............... 150 63stay of proceedings on ...................................... 153 65notice of writ, obtained ex parte, to whom given ... 154 65forms of, order for costs of day where rule, etc., not

ff77, 78 129duly served ... ......................................Challenge of jurors.............................................................. 26 8Chambers—

judge may sit in .................................................. 13 5jurisdiction in.............................................................. 14 5two judges may sit in same place in, concurrently 21 6proceedings in—

184 102applications to he made to registrar ... ...affidavits and papers to he filed ... ... 185 102what summons to set out... ... ... ... 186 102grounds of application to he stated ... ... 187 102service of copies of affidavits .......................... 188 102

applications under s. 21 of “The Married Women s Property Act, 1890,” may he made in... ... 103200

Change of venue. See Y enue.Cheque—

included in “goods ”.................................................. 3 2specially indorsed summons where debt arises on 64, Sch. II. 22, 84taken in execution ... ... .............. ... 167 69

Christmas Day—no service of process on ... ... ... ... 62 91when not counted in time alloioed for notice, etc. ... 195 102

Circuit, appeal to Supreme Court Judge on, is heard by67judge of District Court...................................... 159

Civil Jurisdiction—court to have prescribed ...................................... 7 4special jurors in trial of action .......................... 29 9in personal actions ... ... .......................... 56 17in cases of partnership, intestacy, or legacy ... 57 19equitable claims for debt or damages ............... 58 19in replevin .............................................................. 59 19as to locality ... .............. ... ............... 60 19

Civil proceeding, power to amend in .......................... 131 50Clear days, meaning of term ... ... .............. 2 86Clerk—

of bailiff not to act as registrar .......................... 42 12action by infant as .................................................. 97 37of officer of court not to act as agent for suitors ... 12 ' 87of officer of court or solicitor not to become surety... 13 87of solicitor of party, affidavit not to he sworn before 138 98

Clerk oe Petty Sessions—when to send jury lists to judge .......................... 23 ‘ 7duty of, when new jury lists...................................... 24 7when he is registrar his successor, etc., is registrar 35 10

Clothes—when exempt from execution ........................... 166 69Commencement—

of Act ........................................................................... 2 1of action—

date of summons is ... ... ... ... 40 89on final judgment summons ........................... 45 90

Commission—to judge... ........................... .......................... 9 4to existing judges no fresh, required ............... 11 4


INDEX. 161

— Section, Buie, or Form. Page.

COMMISSIONEB—of Supreme Court may take evidence de bene esse 105 40for taking Affidavits in Supreme Court, affidavits

may be sworn before ... ... ... ... 119 45Committal for contempt. See Attachment.Commitment, warrant of. See Execution.Common Jubobs—

summoning ... ............... ... ... ... 27 8when they may be required for trial of action ... 29 9

Companies—when amenable to jurisdiction ........................... 60 20service of summons on ... ... ... ... 65 25

Concealment of goods, attachment of person where ... 170 71Confession of Debt—

or part thereof............................................................... 73, 74 27,28where plaintiff does not appear at trial .............. 109 42time for delivery of ... ... ... .............. 77 93form of... ... ... ... ... ... ... /21 111form of affidavit of signature to admit debt ... / 22 111form of notice to plaintiff to ... ... ............... / 23 111form of notice of confession of part of debt... ... /24 111

Consent—to judgment by agreement ... ........................... s 74, r 78 28,93adjournment by ... ... ... ............... 119 96jurisdiction—

memorandum for purpose of ........................... 61 21striking out action or appeal, except by consent 124 46costs in Supreme Court where aotioD could

not be brought in District Court withoutconsent of defendant ........................... 127 47

practice in... ............... ........................... 34 89to try interpleader summons where rules not

complied with ... ... ... ... 177 101form of agreement ... ... .............. / 3 104

Consolidated Revenue Fund—fees and fines paid to................................................... 194 81when unclaimed money in court paid to .............. 195 81

Contempt. See Attachment.Contract, specially indorsed summons where debt arises on 64, Sch. II. 22, 84Contribution between persons jointly liable ............... 95 37Conveyancer, judge not to practice as ... ... ... 15 5Coparcenary, who is landlord where ........................... 3 2Copies of entries in court books, evidence of ... ... 34 10COBPOBATION—

foreign, when amenable to jurisdiction .............. 60 19service of summons on ... ... .............. 65 25

Costs—on offences by officer of court ........................... 42, 44 12,13in actions against officer of court ........................... 45, 46 13,14indorsement for, on specially indorsed summons ... 64 22where payment into court in satisfaction.............. 72 27on examination de bene esse ... ... ............... 105 40in action, deposit with registrar by party requiring

jury, to be ... ... ... ............... 114 44in discretion of judge ; how recovered .............. 120 45to be taxed ... ... ... ............... ... 121 45fees to barristers and solicitors and expenses of

witnesses ... ... ... ........................... 122 46fixed costs may be allowed ... ........................... 123 46where court has no jurisdiction ........................... 124 46between solicitor and client ... ... ... ... 125 46

The lines in italics refer to the Rules and Forms.M

162 INDEX.


Costs —continued.in the Supreme Court—

of actions that might have been brought in District Court, no costs in action under £30............................................................... 126 46

exceptions... .................................................. 127 • 47where plaintiff recovers judgment for sum not

exceeding £30 in summary manner ... 128 47how mittimus affected by probable ... ... ... 129 47in mittimus .... ... ... ... ... ... 129,130 48, 49on amendment in civil proceeding.......................... 131 50on attachment of goods ....................................... 136 54of appeal to Supreme Court, order as to.............. 147 62on order in lieu of mandamus ... ... ... 151 63on application for prohibition .......................... 152 64where notice of rule, etc., in certiorari or prohibi

tion not given ... ... ........................... 153 65on failure to give notice of writ of prohibition or

certiorari, obtained ex parte ... .............. 154 65in certiorari generally ... ... ... ... 155 66in action in Supreme Court on judgment obtained

in District Court.., ... .............. ... 160 68on execution of goods................................................... 169 70of execution against person...................................... 171 72in interpleader............................................................... 180 75where lien of third person on garnishee debt ... 187 79on garnishee order ................................................... 190 79service of orderfor 'payment of ... ... ... 17 87on payment into court before judgment ... ... 74 92on confession of judgment ... ... ... ... 77 93when agreement as to amount of debt ... ... 78 93on misjoinder of parties ... ... ... ... 82 93of defendant who was not intended to be charged ... 87 94of an improperly joined defendant ... ... ... 95 95in actions by executors or administrators if

plaintiff fails ... ... ... .............. 100 95in actions against executor or administrator ... 103 to 110,112 95, 96of proving document ... ... ... ... ... 116 96where refusal to permit inspection of document ... 117 96where refusal to admit document produced from

proper custody ... ... .............. ... 118 96on default of appearance of plaintiff at hearing ... 122 97number of witnesses and scales of expenses... ... 143 98expenses of witnesses not examined ... ... ... 144 98money paid into court appropriated first for costs... 145 98of warrants of execution ... ... ... ... 146 99of warrants of commitment and torits of ca. sa. ... 147 99allowance of possession fee ... ... ... ... 148 99bill of by solicitor or legal practitioner ... ... 149 99when concurrent warrants of execution issued ... 174 101of bailiff when interpleader issue decided against

claimant ... ... ... ... ... ... 180 102of defendant, form of undertaking by next friend of

infant to be responsible for ... ... ... /6 105form of judgment against defendant for ... ... f 53 122form of order for, when plaintiff does not appear ... f 65 122of day when rule, etc., in certiorari or prohibition

not duly served, forms of order for ... ... #77, 78 129scale of fees ... ... ... ........................... 147 to151security for. See Security.

Court—meaning of term ... ... ............... ... 3 2rules of, meaning of term ....................................... 3 2

The lines in italics refer to the Rules and Eorms.

INDEX. 163


Court—continued.Small Debts, meaning of term ........................... 3 2existing ... ... ............... ... ... 4 3general saving of powers of ... ... ... ... 5 3proclamations as to................................................... 6 3district assigned to ... ........................... ... 6 3to be Court of Record ....................................... 7 4to have seal ... ... ... ... ... ... 8 , 4assigned to judge ................................................... 10 ' 4to be holden where directed....................................... 12 5when to be holden ................................................... 12 5

foreign, meaning of term ... ........................... 2 86home, meaning of term ... ... ... ... 2 86officer of. See Bailiff; Officer; Registrar.

Coverture. See Husband and Wife.Criminal Jurisdiction—

court to have prescribed ....................................... 7 4generally ............................................................... 49 15exceptions from ................................................... 50 15Governor in Council may withdraw ............... 51 15

Cross action may be pleaded by way of set-off... ... 68 26Cross judgments to be set off ....................................... 179 74Crown Law Officer— .

meaning of term ... ... ........................... 3 2approves time of bolding court ........................... 12 5may request judge to act for another in certain cases 20 6may request two judges to sit in same place con

currently ... ... ... ........................... 21 6makes orders as to duties, etc., of registrar in

populous places ... ... ... ............... 31 9may suspend or dismiss assistant bailiff' ... ... 36 10may change venue in criminal cases ............... 52 16information may be in name of ... ... ... 16

Crown Prosecutor, appointment of ... ... ... ^xl6Currency of process. See Time. fYi0 ... V- sv

D. NDamages, jurisdiction as to equitable claim for ...Date—

.....of ordinary summons ... ... ... ... ...of special summons ... ... ... ... ...

ty^89^ 90

Day—return, meaning of term ....................................... 3 2clear, meaning of term ... ... ... ... 2 86

Death. See also Executors and Administrators.after service of summons in bar of limitation ... 44 90of party—

before jugdment ... ... ... ... ... 97 95after judgment ... ... ... ... ... 98 95

De JBene Esse—examination ... ... ... ... ... ... 105 40jorm of affidavit in support of examination ... /50 120

Debt Attachment —book, registrar to keep ... ... ... ... 189 79of. See Attachment.

Declaration, statutory, included in “Affidavit ” ... 2 86^Default—

judgment by, on specially indorsed summons ... 75, 76 28in payment of instalments, execution thereon ... 176 73of appearance. See Appearance.


164 INDEX.


Defect—in civil proceeding, power to amend ............... 131 50in affidavit ... ... ... ... ... ... 137 98

Defence. See also Notice of Defence.what may be pleaded by way of set-off ............... 68, 69 26upon equitable grounds ....................................... 70 26to final judgment summons. See Final Judgment.when defendant at hearing to state grounds of ... 126 97

Definitions........................................................................... s 3 r 2 2, 86Delay, unnecessary, no mittimus where it would cause 129 47Demand—

of possession, recovery of possession of land on ... 137 55and re-entry, service of summons to recover posses-

57sion of land, when to stand instead of.............. 139Departure of defendant from colony, etc. See Absence. Deposit—

by party requiring jury ... ... ... ... 114 44on appeal to Supreme Court....................................... 144 59with registrar where summons to be served in foreign

87district ... ... ... ... ... ... 8in lieu of bond... ... ... ... ... ... 122 97form of certificate of ... ... ... ... ... /17 110

Deposition as to fact of service ....................................... 66 25Deputy—

judge—“ judge ” includes ....................................... 3 2appointment of................................................... 19 6powers of............................................................... 19 6

sheriff, registrar to act as ... ... ... ... 33 10to clerk of petty sessions when registrar.............. 35 10

Determination of term, recovery of possession of land on 137 55Detinue—

judgment in ... ... ... ... ... ... 154 99form of judgment in ... ... ... .............. /51 121form of tvarrant against lands and goods of defen-

/ 82 132• dant in ... ... ... ... ... ...Devastavit. See Executor and Administrator.Devise, no jurisdiction as to validity of ............... 56 17Discharge—

of person—attached on payment of debt and costs ... 171 72by reason of sickness, etc. ... ... ... 177 74

of garnishee by payment, as against judgment debtor . 188 79Discontinuance of—

Courts ... ... ............... ........................... 6 3of action—

71'proving set-off on... ... ... ............... 92by plaintiff ............... ........................... 76 93

Dismissal—of assistant bailiffs ... ... ... .............. 36 10of action, proof of set-off on ... ... ... ... 71 92

Distress for rent, jurisdiction in case of... ... ... 59 19District. See also Foreign District; Brisbane District.

Court, meaning of term ... ... .............. 3 2Court judge, meaning of term .......................... 3 2meaning of term ................................................... 3 2petty sessions, meaning of term ...........................assignment of, to court .......................................

3 26 3

foreign, meaning of term ... ... ... ... 2 86home, meaning of term ... ... ............... 2 86

Division of Act ........................................................ 1 1


INDEX. 165


E.Ejectment. See Land.Election by trustee to continue action on insolvency of

plaintiff ... ... ... ... ............... 94 37Endorsement—

copy summons for, to be delivered to bailiff... * ... 9 87of service of summons ... ... ... ... ... 22 88

Enforcement of judgments. See Judgment; Execution. Entries—

in court book, evidence of ....................................... 34 10in registrar s book, form of ... ... ... ... 4 86

Entry on land, warrant to bailiff sufficient to justify ... 142 58Equitable—

claims—for debt or damages, jurisdiction as to ... 58 19as to plaint in ... ... ... ... ... 63 22may be pleaded by way of set-off ............... 69 26

defence —generally............................................................... 7a 26notice to be given to registrar of ............... 71 26plea of, when to be delivered ... ... ... 66 91plea of, what to contain............... ............... 67 92

Erasure in affidavit ... ... ... ... ... 139 98Error—

in civil proceeding, power to amend ... ... 131 50in conviction or order, amendment of, on appeal ... 158 67judgment or action only to be removed by writ of,

in accordance with Act....................................... 149 62in affidavit ... ... ... ... ... 137 98

Escape, bailiff answerable for ............... ............... 41 12Evidence. See also Affidavit; Expenses. ■

of proceedings of court ....................................... 34 10proof of authority in action against officer of court 45 13fee for service of subpoena....................................... . 40 11in criminal case, subpoena to witness ... ... 55 16as to title to land, judgment of court is not ... 56 17proof of service ................................................... 66 25mode of obtaining, subpoena to witness .............. 102 39penalty on witness neglecting subpoena .............. 103 39person in court refusing to give ... .............. 103 39power to judge to cause arrest of witness neglecting

subpoena ... ... ... ... ... ... 104 40examination de bene esse ... ... ... ... 105 40what rules of evidence apply .......................... 117 45proof to be limited to matter in summons ... ... 118 45compelling witnesses to attend before arbitrators... 135 54for judgment where attachment of goods.............. 136 54on summons for recovery of possession of land ... 137 55on summons for recovery of possession where rent

in arrear ... ... ... ... ... ... 139 57of copy of judge’s note for purposes of appeal ... 146 62on appeal from Small Debts Court ... .............. 156 66necessary to attach person..................................... . 170 71in interpleader... ... ... ... .............. 180 75necessary for extending time for service of summons 42 90mode of service of ... ... ... ... ... 49 to 61 90, 91where dispute or doubt as to due service ... ... 63 91of executor or administrator toasting assets... ... 103 95subpoenas to witnesses issued without leave of judge 113 96when subpoena to be served ... ... ... ... 114 96notice to admit document ... ... .............. 116 96notice to inspect document .. ... ... ... 117 96


166 INDEX.


Evidence—continued.of documents produced from proper custody ... 118 96form of subpoena to witness ... ... ... ... jf46,103,104 118, 139form of order fining a witness for non-attendance ... /46 119form of warrant of execution against lands and

goods of witness ... ... ... ... ... f 47 119form of warrant to arrest witness ... ... ... f 49 120form of affidavit in support of examination de bene

esse ... ... ... ............... ... /50 120form of notice to produce ... ... ... ... /102 139recognizance to give, form of... ... ... ... /105 140

Examination—of j udgment debtor, form of order for ... ... /94 136de bene esse ............................................................... 105,/50 40,120

Excess, abandonment of.................................................. • 99 38

Execution. See also Warrant, generally—

note of, to be made by registrar ............... 34 10of warrants by bailiffs....................................... 38 11when fee for execution of warrants of, paid to

bailiff ................................................... 40 11neglect, etc., of bailiff to levy............... ... 41 12registrar to issue warrant of ............... ... 161 68beyond district ... ... ............... ... 173 72times of applications for warrants to be entered priority of executions issuing out of Supreme

174 73

and District Courts ........................... 175 73execution after default in instalment, may be

issued ........................... ............... 176 73suspended in certain cases ........................... 177 74superseded on payment of debt and costs ... 178 74cross judgments to be set off ........................... 179 74interpleader ............... ............... ... 180 75against garnishee .................................. 184,187 78, 79costs of warrants of ... ... ... ... 146 99allowance of possession fee ... ... ... 148 99how issued against person not party to suit ... 157 100warrants to be dated; currency of ... ... 169 101on default in payment of amount of judgment

or instalment, issued without leave ... 170 101duties of registrar on issue of warrant... ... 171 101public sale of goods sold in execution ... ... 172 101bailiff may remove goods for sale ... ... 173 101warrants may be issued concurrently in one or

more districts ... ............... ... 174 101suspension of, tohen notice <f application to be

■ given ... ... ... ... ... ... 176 101form of warrant against goods of testator ... / 41 117form of warrant against lands and goods of

witness for a fine ... ............... ... /47 119form of notice to be sent with warrant of

against lands and goods ... ... ... f 48 120form of warrant against lands and goods of

defendant .............. ............... ... /79 130form of warrant against the lands and goods of

defendant, when judgment signed unders. 75 ... .................................. ... / 79a 130

form of warrant against lands and goods ofplaintiff ... ... .............. ... /80 131

form of prcecipefor warrant ... ... ... /81 131form of warrant in detinue ... ... ... /82 132

The lines in italics refer to the Rules and Forms,

INDEX. 167

------ . Section, Rule, or Form. Page.

Execution—continued. generally—continued.

form of registrar s warrant requiring execution of annexed warrant to be sent out of district ............... ............... ... / 87 134

form of warrant against lands and goods ofclaimant ... ... ... ... ... /93 135

form of execution booh ... ... ... ... Y. 145form of foreign execution reissued booh ... YI. 146form of return to warrants ... ... ... IX. 146

against goods—bailiff may seize goods ... .............. ... 166 69securities seized to be held by plaintiff ... 167 69when goods taken in execution may be sold ... 168 70when goods seized, landlord may claim certain

rent in arrears ... .............. ... 169 70bailiff to sell goods ...................................... 169 70

against land—bailiff may take land ...................................... 162 68notice of sale of land ...................................... 163 68registrar to execute deed or transfer on sale of

land.............................................................. 164 69when not to bind land unless registered ... 165 69notices as to how'published ............... ... 175 101

against the person—issue of warrant of commitment ... ... 170 71discharge on payment of debt and costs ... 171 72detention of person arrested .............. ... 172 72discharge for sickness, etc. ... ... ... 177 74costs of writ of ca. sa. ... ... ... ... 147 99form of summons for writ of ca. sa. ... ... / 83 132form of order for writ of ca. sa. ... ... / 84 133form of writ of ca. sa. ... ... ... y 85 133form of certificate for discharge of defendant... /86 133

Executobs and Administbators. See also Scire Facias. Executor may sue and be sued in District Court... 96 37when action may be brought against, where summons

in bar of limitation .............. ............... 44 90proceedings against—

token plaintiff fails ............... ... 100 95failing to appear at hearing ... ... ... 101 95charge that defendant has had assets and wasted

them ... • ... ... ... ............... 102, 110 95, 9djudgment in such a case ... ... ... ... 103, 110 95, 96when defendant does not appear, or appears and

denies his representative character, or alleges release ... ... ... ... 104 95

where defendant admits represen tative character,. but denies demand ... ... ... ... 105 95wh ere defendant admits representativ e character,

but denies demand, and alleges administration ... ... ... ... ... ... 106, 107 * 95

where defendant admits representative character and demand, but alleges administration ... 108, 109 95

lohere judgment of assets quando acciderint ... 110 96when defendant to pay amount of demand into

court........................... ... ............... 111 96generally in all other cases ... ... ... 112 96form of judgment against, in various cases ... ff 32 to 39 113 tollGform of summons under rule 110 ... ... / 40 116form of warrant of execution against goods of

testator ............... ... ............... / 41 117form of judgment on devastavit... ............... f 42 117


168 INDEX.

Section, Eule, Page.or Form.

Expenses—of witness—

generally............................................................... 103 39amount of... ............... ... ... ... 122 46attending before arbitrators ........................... 135 54on appeal from Small Debts Court ... ... 157 55judge may fix, before he is sworn .... ... 115 96scale of allowance ... ... ... ... 143 98when not examined ... ... ... ... 144 98

of service of summons in foreign district ... ... 8 87Expiration of term, recovery of possession of land on... 137 55Extortion by officers of court ............... ... ... 44 13

F.Fact, Questions of—

how determined ................................................... 106 41reserving decision on ... ... ... ... ... 156 99

Fees—of Court—

accounts of ................................................... 32 9scale of ............................................................... 192, Sch. IV. 80, 85Governor in Council may alter........................... 193 80paid to Consolidated Revenue Fund ... ... 194 81schedule of scale of, to form part of rules ... 1 86for successive summonses, to bar limitation, etc. 43 90collected by means of stamps ... ... ... 197 103

to bailiff ............................................................... 40, Sch. IV. 11, 85to barristers and solicitors....................................... 122 46scale of counsels and solicitors' fees ... ... ... 147

Felony, capital, no jurisdiction as to ........................... 50 15Feminine included in masculine ... ... ... ...Final Judgment, Summons foe—

2 90

jurisdiction as to locality in case of... ... ... 60 19when summons may be specially indorsed... ... 64, Sch. II. 22, 83particulars of clause to be indorsed............... ... 64, Sch. II. 22, 83now service of summons effected ... ... ... 65 25on default in filing notice of defence ............... 75, 76 28when judgment summons may be issued............... 77, Sch. III. 29, 84wrhen summons returnable....................................... 78 31where summons returnable.......................................when summons heard at court from which it was

79 32

issued ............................................................... 80 32duty of registrar when summons returnable at

place other than where it was issued ... ... 81 32when summons heard at Brisbane or Townsville

by District Court judge....................................... 82 32when summons heard by Supreme Court judge ... 83 32judge to make minute of order ...........................documents to be returned to court from which

84 33

summons issued................................................... 85 33defendant may show cause by payment into court

or by affidavit ................................................... , 86 33if defence only as to part, judgment to be for balance if one of two defendants has defence, leave may be

87 33

granted to him ... ... ... ... ...defendant who has set*off may call upon plaintiff

88 34

to show cause why he should not have judgment ... ... ... ... ... ... 89 34

leave to defend may be conditional ... ... ... 90 34when judgment to be entered by registrar ... 91 36place of trial when leave to defend ... ... 92 36meaning of term special summons ... ............... 2 86form and date of summons ... ... ... 45 90


INDEX. 169


Final Judgment, Summons foe—continued.currency of summons ... ... ... ... ... 46 90renewal of summons ... ... ... ... ... 47 90mode of service of summons ... ... ... ... 64 91when notice of defence to he delivered ... ... 69 92notice of trial in lieu of judgment summons ... 73 92wh en summons returnable ... .. ... ... 79 93when action to he set down for hearing, after leave

to defend ... ... ... .......................... 80 93affidavits when to he filed ... ... ... ... 81 93form of plaint note on entering plaint ... ... / 8 106form of summons ... ... ... ... ... /» 106form of judgment summons ... ... ... ... /9a 107form of affidavit to accompany summons ... ... / 29 113form of order for judgment ... ... ... ... / 30 113form of judgment ... ... ... ............... /31 113

Fine. See Offences.Firm. See Partner.Foreign—

corporations and joint stock companies, when amenable to jurisdiction .......................... 60 19

court, meaning of term ... ... ... ... 2 86district—

execution in ... ... ... .............. 173 72meaning of term ... ... ... ... ... 2 86service of summons in ... ... ... ... 7,8 87duty of registrar where warrant to he executed

in ... ... ... ... ... ... 18 87service of summons in ... ... ............... 23 88warrants unexecuted in ... ... ... ... 30 88return of warrants executed in... ... ... 31 88form of warrant to execute annexed warrant in / 87 134

execution, reissued, book—entries in ... ... ... ... ... ... 18 ' 87form of ... ... ... ... ... ... VI. 146

Forfeiture of recognizance, form of ... ... ... /113 144Forgery, forging seal, or serving forged process ...T7a *P -JUT 3_

197 81

not provided for ... ... ... ... ... 14 87of plaint in replevin ... ... ... ... ... 33 88of ordinary summons ... ... ... ... ... 40 89of final judgment summons ... ... ... ... 46 90general heading and conclusion ... ... ... / 1 104memorandum to he placed at foot of every summons,

notice, judgment, order, warrant, or other process ... ............... ... .%. ... /2 104

agreement to give jurisdiction to court under s. 61 / 3 104plaint ... ... ... ... ............... ... / 4 104plaint note on entering plaint (ordinary summons) / 5 104undertaking hy next friend of infant to he responsible

for defendant-s costs ... ... ... ... / 6 105ordinary summons to appear to plaint ... ... / 7 105plaint note on entering plaint (special summons) ... / 8 106special summons ... ... ... ... ... / 9 106judgment summons ... ... ... ... ... /9a 107statement of service by person other than bailiff to

he indorsed on summons, or other process ... /io 107deposition of service hy bailiff to he indorsed on or

attached to summons ... .......................... /II 107affidavit of service of ordinary summons .............. / 11a 108affidavit of service of special summons and plaint... / 11b 108bailiff's affidavit of service of summons ... ... /11c 108affidavit as to there being no plea or defence died ... /llD 108


170 INDEX.


Fobms—continued.letter to be sent with summons out of district ... f 12 109notice of service of summons ... ... ... ... f 13 109notice of non-service of summons ... ... ... f 14 109notice of defence ... ... ... ... ... / 15 109flea ... ... ... ... ... ... ... f 16 109certificate of deposit ... ... ... ... ... / 17 110notice of sureties ... ... ... ... ... /18 110affid avit of justification ... ... ... ... / 19 110notice of payment into court hy defendant to plaintiff / 20 111admission of claim or part of claim under s. 73 ... / 21 111affidavit of signature to admission under s. 73 ... f 22 111notice to plaintiff of admission of claim under s. 73 / 23 111notice to plaintiff\ under s. 73, of admission of part

of claim ... ... ... ... ... ... / 24 111admission under s. 74 ... ... ... ... / 25 112affidavit of signature under s. 74 ... ... ... f 26 112affidavit of debt ... ... ... ... ... / 27 112judgmentfor plaintiff... ... ... ... ... / 28 112affidavit to accompany judgment summons under

s. 77 ... ................................................ / 29 113order for final judgment ... ... ... ... f 30 113judgment under s. 77 ... ... ... ... ... / 31 113judgment against an executor— ... ... ...

toho has wasted assets ... ... ... ... / 32 113who has denied his representative character ... / 33 114who has pleaded a release of the claim to him

self....................................... ............... / 34 114judgment against an executor or administrator who

admits his representative character ... ... ffio to 39 lUtollQsummons to an exemutor of plaintiff's intention to

apply to court ivhere assets have come to dfendant's hand since judgment ... ... /40 116

warrant of execution against the goods of a testator f 41 117judgment against an executor on a devastavit ... / 42 117order for changing venue under s. 101 ... ... / 43 118notice by court to which an action has been sent of

the day of hearing ... ... ... ... fU 118subpoena to witness ... ... ... ... ... f 45 118prescipefor subpoena ... ... ... ... ... f 46 a 118order fining a witness for non-attendance ... ... / 46 119warrant of execution against the lands and goods of

a witness for a fine ... ... ... ... / 47 119notice to be sent with all warrants of execution •

against the land and goods ... ... ... f 48 120warrant to arrest witness under s. 104 ... ... /49 120affidavit in support of apptication under s. 105 ... /50 120judgment in detinue ... ... ... ... ... f 61 121judgment for defendant (after trial) ... ... / 51i 121judgment of nonsuit ... ... ... ... ... /51b 121judgmentfor plaintiff... ... ... ... ... / 52 121judgment against defendant for payment of costs ... / 53 122judgment for defenaant or of nonsuit ... ... / 64 122order for costs to defendant where plaintiff does not

appear ... ... ... ... ... / 55 122order to adjourn proceedings ... ... ... / 56 122order appointing guardian named by infant defen-

dant ... ... ... ... ... ... / 57 123order appointing guardian of infant defendant,

where defendant does not name a guardian ... / 58 123registrar s notice of jury ... ... ... ... / 59 123summons to jurors ... ... ... ... ... / 60 123summons to jurors ............... ... ... ... / 60 a 123

The lines in italics refer to the "Rules and Forms.

INDEX. 171


Forms—continued.notice to jurors that attendance not required ... / 61 124notice to jurors of alteration of day of attendance / 62 124affidavit of increase ... ... ... ... ... / 63 124notice to he sent to both parties under s. 129 or s. 130 / 64 124certificate of the result of the hearing of a cause

under ss. 129 and 130 ... ... ... ... / 65 125order for a new trial ... ... ... ... ... f 66 125order to rescind a former order ... ... ... / 67 125order of reference ... ... ... ... ... f 68 125warrant of attachment and seizure under s. 136 ... f 69 125summons to a tenant or other person holding over ... f 70 126summons under s. 139... ... ... ... ... fix 126order for recovery of tenement ... ... ... f 72 127warrant for giving possession of tenement ... ... / 72 a 127notice of appea l to other party ... ... ... / 73 127bond, where a plaintiff is appellant... .............. fU 127bond, where defendant is appellant ... ... ... f 75 128agreement, under s. 148, that the judges decision

shall be final ... ... ... ... ... / 76 129order for costs of the day under s. 153 ............... / 77 129order for costs of the day under s. 154 ... ... / 78 129warrant of execution against lands and goods of

defendant ... ... ... ... ... ... / 79 130warrant of execution against the lands and goods of

defendant, tohen judgment signed under s. 75... /79 a 130warrant of execution against lands and goods of

plaintiff ............... ........................ . ... /80 131prcecipefor warrant of execution ... .............. / 81 131warrant of execution in detinue against lands and

goods of defendant ... ... ... ... / 82 132summons for writ of ca. sa. ... ... ... ... /83 132order for writ of ca. sa. ... ... ... ... / 84 133writ of ca. sa. ... ... ... ... ... ... / 86 133certificate for the discharge of a defendant from

custody ... ... ... ... .............. / 86 133registrar s icarrant requiring execution of annexed

warrant to be sent out of district ... ... / 87 134interpleader summons to execution creditor... ... / 88 134interpleader summons to a claimant setting up a

claim to goods or the proceeds thereof ... ... / 89 134interpleader summons to a claimant setting up a

claim to rent in respect of the premises upon which the execution was levied ... ... ... f 90 135

order on an interpleader summons where the claim is not established ... ...................................... f 91 135

order cn an interpleader summons where the claim is established ... ... ... ... ... / 92 135

warrant of execution against the lands and goods of claimant ... ... ... ... ... ... / 93 135

order for examination of judgment debtor ... ... /94 136garnishee order attaching debt ... ... ... / 95 136garnishee order absolute ... ... ... ... /9 6 137warrant of commitment for contempt ... ... / 97 137summons in nature of scire facias where any change

of plaintiff ... ... ... ... ... /98 137summons in nature of scire facias where any change

of defendant ... ... ... ... ... /99 138judgment on scire facias summons on change o*

plaintiff ... ... ........................... ... /100 138judgment on scire facias on change of defendant ... ^101 138notice to produce (generalform) ... .............. f 102 139subpoena to witness for Crown ... ... ... ^103 139

The lines in italics refer to the Rules and Forms,

172 INDEX.


^ ------------------------------------------------------------------

F OEMS—continued.subp cena to witness for 'prisoner ... ... ... /104 139recognizance to give evidence ............... ... /105 140recognizance of bail ... ... ... ... ... /106 140notice of recognizance to be given' to the defendant

and his bail ... ... ... ... ... ^107 140warrant of apprehension ... ... ... ... /108 141return of service ofj arors ... ... ... ... /109 142abstract of payment to jurors ... ... ... /no 143information ... ... ... ............... ... / 111 144return to warrant ... ... ... ... ... /112 144certificate of forfeiture of recognizan ce ... ... /113 144boohs for registrars and bailiffs—

plaint booh ... ... ... ............... I. 145minute booh ... ... ... ... ... II. 145judgment booh ... ... ... ............... III. 145debt attachment booh ... ... ... ... IY. 145execution booh ... ... ... ... ... v.foreign execution reissued booh ... ... VI. 146bailiff's warrant booh ... ............... ...bailiff" s return of summonses ... ... ...

VII. 146i VIII. 146

return to warrant ... ... ... ... IX. 146order booh............... ,. ........................... X. 147

Fraud—execution against the person where... ............... 170 71plea of Statute of Frauds—

notice of ... ... ... ... ............... 71 26when to be delivered ... ... ............... 66 91

Friendly Societies—how disputes are to be referred to court ............... 201 103who to be parties ... ... ... ... ... 202 103particulars of demand to be filed ... ............... 203 103

Frivolous action may be referred from Supreme toDistrict Court ................................................... 130 49

G.Gaol. See Prison.Garnishee order. See Attachment of Debts.Gazette, Publication in, of—

proclamation withdrawing criminal jurisdiction ... 51 15rules of court ... ... ... ... ............... 191 79

General or Quarter Sessions—appeal to, is appeal toDistrict Court ... ....................................... 159 67

Good Friday—no service of process on ... ... ... ... 62 91ivhen not counted in qivinq notice, etc. ... ... 195 102

Goods—meaning of term ... ... ... ............... 3 2of defendant, attachment of....................................... 136 54execution against. See Execution.

Government, Queen’s, no jurisdiction as to offencesagainst ... ... ... ... ............... 50 15

Governor in Council—orders courts to be held, etc. ... ............... 6 3appoints judge............................................................... 9 4assigns court to judge ... ... .............. 10 4declares interval at which courts to be held ... 12 5may remove judge ... ... ... ............... 17 6appoints deputy judge ............... ............... 19 6may require disabled judge to retire ............... 22 7when he may order justices to prepare jury lists... 24 tappoints registrar ................................................... 31 9

The lines in italics refer to the Rules and Eorms.

INDEX. 173


Governor in Council—continued.appoints bailiffs ... ... ... ... ... 36 10may lessen bailiff’s fees ....................................... 40 11fixes security of officers of court ... ... ... 43 12may withdraw criminal jurisdiction ... ... 51 15may appoint Crown Prosecutor ... ... ...may proclaim places at which judgment summonses

53 16

returnable... ... ... ... ... .... 81 32may alter scale of fees .......................................

Guaranty—193 80

specially indorsed summons where debt arises on Guardian. See Infants.

H.

64, 8ch. II. 22,83

Heading and conclusion of process, form of ... ... /1 104Holding over recovery of possession of land from tenant Home—

137 55

court, meaning of term ... ...........................district, meaning of term ... ... ... ...

Husband and Wife— plea of coverture

2 862 86

generally............................................................... 71 26when to be delivered ... ... ............... 66 91what to contain ... ... ... ............... 67 92

proceedings by ................................................... 93 36service where both are defendants ... ... ... 60 91where wife improperly joined or omitted as a party when wife sued as feme sole, and obtains judgment

92 94

on ground of coverture ... ... ... ...applications under s. 21, “ The Married Womens

99 95

Property Act, 1890,” how made ............

I.Illiterate person, affidavit of ... ......................Illness—

of judge—

200 103

136 98

deputy appointed on ................................ 19 6another judge may act on ...................... 19,20 6permanent, of judge ................................ 22 7

of witness .....................................................of defendant, suspension of execution, or discharge

105 40

in case of ... ... ... ... ............... 177 74Implements, when exempt from execution ............... 166 69Inability of judge............... ....................................... 16,17, 22 5, 6, 7Increase, form of affidavit of ... ... ... ...Indorsement, special. See Final Judgment.Infancy—

plea of—

f 63 124

notice of............ ................................ 71 26when to be delivered ............ ............ 66 91what to contain ... ... ... ... ... 67 92

when infants may sue in own name...................... 97 37unclaimed money in court belonging to infant ... 195 81service on infant ... ... ... ... ... 57 91appointment of guardian of infant defendant ...form of undertalcing by next friend to be responsible

124 97

for defendant's costs ... ... ............ /<3 105forms of order appoin ting guardian... ... ... #57, 58 123

Infirmity, permanent, of judge ... ... ............... 22 7Information, offences may be tried by........................... 53 16

form of ... ... ... ... ............ fill 144


174 INDEX.

Section, Rule, Page.or Form.

Insanity—of defendant, suspension of execution, or discharge

177in case of............... ... ............... ... 74unclaimed money in court belonging to persons of

unsound mind ................................................... 195 81service on lunatic, warders, etc........................ ... 53 90

Insolvency—plea of discharge hy—

notice of.............................................................. 71 26token to be delivered ... ... ... ... 66 91what to contain ... ... ... ... ... 67 92

not to cause action to abate if trustee elects tocontinue it.............. ...................................... 94 37

judgment debtor, when discharged from custody... 171,177 72,74Inspection of document ... ......................................Instalments—

117 96

payment by ............... ............... ............... 133 53if default in payment of, execution may be issued 176 73time for payment by ... ... ... ... ... 155 99execution on default in payment of ... ... ... 170 101

Interdict Act applied to interpleader in District Court Interest, judge may change venue or adjourn on

180 75

ground of... .... ... ........................... 101 39Interlineation in affidavit... ... ............... ... 139 98Interlocutory applications, affidavits on... ... ...Interpleader—

131 97

jury on proceedings in ... ... ... ... 113 43when appeal to Supreme Court lies..........................generally ...............................................................

144180

5975

service of summons, etc. ... ... ... ... 177 101issue of summons ... ... ... ... ... 178 101where summons to be issued ... ... ... ... 179 101costs of bailiff when decision against claimant ... 180 102deposit by claimant of value of goods, etc. ... ... 181 102forms of summons ... ... ... ... ... ffS8 to 90 134,135forms of order ... ... ... ... ... ...form of warrant of execution against lands and

ffdl, 92 135

goods of claimant... ... ... ... ... / 93 135Interpretation—

clause ... ............... .......................... ... s 3, r 2 2,86Intestacy. See also Executor and Administrator..

jurisdiction in cases of ...................................... 57 19

J.Joinder—

of causes of action ..................................... ... 98 38'of issue, no formal ... ... ............... ...of parties—

108 42

who may be joined as plaintiffs... ... ... 82 93who may be joined as defendants ... ... 83, 84 93where too many plaintiffs improperly joined ... 93 94

Joint—liability—

one of several persons jointly liable may be95 37

set-off where action against one or more ofseveral persons jointly liable ... ... 72 92

stock companies—when amenable to jurisdiction.......................... 60 19service of summons on.......................... ... 65 25

tenancy, who is landlord where ... ... ... 3 2


INDEX. 175


Judge. See also Deputy Judge ; Jurisdiction; Jury; Travelling Expenses.

meaning of term ... ........................... 3 2existing............... ... ....................................... 4 3general saving of power of ... ... ... ... 5 3appointment and qualification of ... .. ... 9 4assignment of court to ....................................... 10 4jurisdiction of.............. ... ... ... ... 10, 11 4existing, no fresh commission to, required ... ... 11 4to hold court where directed, and to give notice ... 12 5with approval of Crown Law Officer, appoints time

for holding court.................................................. 12 5adjournment of court on absence of ............... 12 5may sit in chambers................................................... 13 5not to practise, or sit in Parliament ... ... 15 5tenure of office and salary of ... ... ... 16 5removal from office of ....................................... 17 6may perform duties of another judge ............... 19,20 6two may sit at same place concurrently ... ... 21 6disabled, may be required to retire... ... ... 22 7when clerk of petty sessions to send jury lists to 23 7may suspend bailiff or his assistant... ... ... 36 10directs bailiffs and officers ... ... ... ... 38 11may deprive bailiff of fees ... ... ............... 40 11may inquire into bailiff’s negligence, etc. ... ... 41 12inquires into alleged misconduct of officers of court 44 13may allow agent to appear for party ............... 48 14may change venue in criminal cases ... ... 52 16tries issues of law in criminal cases... ... ... 53 16when he may direct as to service of summons ... 65 25may set aside or vary judgment by default ... 75 28may order attendance of defendant, etc., on judg

ment summons................................................... 86 33may sever causes of action.............. ... ... 98 38may change venue ... ... ... ... ... 101 39may direct as to application of fine of witness ... 103 40may cause arrest of witness neglecting subpoena... 104 . 40to be sole judge at trial ............... ... ... 106 41affidavits may be sworn before ........................... 119 45costs in discretion of ... ... ............... ... 120 45reviews taxation of costs ...................................... 121 45mandamus to ... ... ... ... ... ... 151 63appoints hours for registrar s office ... ... ... 3 86fixes day for trial in mittimus ... ... ... 15 87

Judgment. See also Final Judgment.meaning of term ... ... ............... ... 3 2of court to be registered ... ... ... ... 32 9note of, to be made by registrar ... ... ... 34 10upon admission of defendant.......................... ... 73, 74 27, 28to be given if notice of defence not filed............... 107 41for plaintiff where he does not appear at trial ... 107,109 42for plaintiff where defendant does not appear at

trial ... ... ... ............... ... 110 42against plaintiff, as to set-off where ............... 111 43when to be final ... ... ... ... ... 132 51time for satisfying ................................................... 133 53in action where goods attached ............... ... 136 54action on ............................................................... 160 68enforcement of. See Attachment; Execution, summons, form of ................................................... Sch. III.,/9a 84,107payment into court before ... ... ... ... 74, 75 92, 93time of confession of ... ........................... ... 77 93death of party before ... ... ... ... ... 97 95


176 INDEX.


J udgment—continued.death of party after ... ... ... ... ... 98 95in detinue ... ... ... ... ... ... 154 99order for payment by instalments ... ... ... 155 99where judge reserves his decision ... ... ...on proceedings in nature of scire facias. See Scire

156 99

Facias.of Court of Appeal, notice of.,, ... ... ... 166 100proceeding on judgment of Court of Appeal ... 168 101form of memorandum to be placed at foot of ... /2 104for plaintiff\ form of ... ... ............... ... / 28 112for defendant after trialf form of ... ............... / 51a 121of nonsuit, form of ... ... ... ............... 51b 121against executor or administrator, forms of ... #*32 to 39 113,116on devastavit, form of... ... ... ..............* /42 117in detinue, form of ... ... ... ... ... /51 121for plaintiff form of... ... ............... ... / 52 121against defendant for costs, form of... ... ... / 53 122for defendant on nonsuit, form of ... ............... /5 4 122form of judgment book ... ... ... ... III. 145

Jurisdiction. See also Civil; Consent; Criminal.of judge generally ... ........................... ... 10,11 4in chambers ............... ... ... ............... 14 5costs, where court has none....................................... 124 46of police magistrate on attachment of goods ...of Supreme Court—

136 54

on appeal from District Court........................... 147 62as to certiorari ... ... ... ... ... 150 63as to order in lieu of mandamus ... ... 151 63as to prohibition................................................... 152 64as to attachment of person ...........................

J URY—who shall be jurors ... ... ... ... ...

170 71

23 7jury lists for newly proclaimed districts ... ... 24 7jury book to be made therefrom ...........................what provisions of “ The Jury Act of 1867 ” to

25 8

. , app!y ............................................................... 26 8judge may issue precepts ....................................... 27 8attendance of............................................................... 28 8special jurors............................................................... 29 9payment of ...............................................................in criminal cases—

30 9

to be twelve ... ... ... ... ... 53 16how constituted................................................... 54 16

in civil actions—when a jury may be summoned ... ... 113 43party requiring to make deposit ...............how summoned ... ... ... ... ...

114115

4444

to be chosen by ballot ... ... ... ... 116 44time for notice of demand of ... ... ... 127 47new trial may be ordered before ... ... 160 68

insulting a juror ... ... ... ... ... 198 82form of registrar s notice of ... ... ... f 59 123form of summons to jurors ... ... ... ... f oo 123form of notice that attendance not required ... f 61 124form of notice of alteration of day of attendance... f 02 124form of return of service of ... ... ... ... /109 142form of abstract of payment to ... ... ... /no 143

Justice—meaning of term ... , ... ... ... ... 3 2when to cause jury lists to be prepared ...............deposition of service taken before...........................

24 766 25

defendant may confess debt in presence of ... 73 27


INDEX. 177

J ustice—continued.agreement between parties as to amount of debt,

etc., made in presence of ........................may take evidence de bene esse ..........................affidavits may be sworn before, without issue of

commission ...............................................appeal from. See Appeal.

Justification—in action of tort—

notice of plea of......................... .............plea of, when to be delivered ..........................

affidavit of—made by sureties .... ......................................form of ... ... ............... ..............

K.Keeper of Prison—

duty to keep person attached ............. ...receives amount necessary for discharge of person

attached ... ...............................................

L.Labourer, action by infant as ............... ..............Land-—

title to—no jurisdiction as to certain offences with

respect to documents containing evidence ofjurisdiction as to..................................................

jurisdiction in replevin ......................................recovery of possession of—

jury in action for ... ..............where term expired or determined ... ...issue of summons ...........................* ...in plaint, plaintiff may also claim for rent and

mesne profits ......................................for non-payment of rent; issue of summons ... sub-tenant served with summons to give notice

to immediate landlord ............... ...mode of service of summons ... ..............warrant to bailiff sufficient to justify entry ... warrant to be in force for three months ...when appeal to Supreme Court lies ..............form of summons to tenant, etc., holding over... form of summons where rent in arrear ...form of order for recovery of tenement............form of warrant for ... ......................

execution against ... ... ... ... ...form of warrant for execution, when judgment signed

under s. 7 5 ............ ......................when notices to be issued ... ... ... ...when goods seized landlord may claim certain rent

in arrear ...............................................................Landlord. See also Land.

meaning of term ..................................................Law—

issues of, in criminal cases......................................questions of— ’

determined by judge .......................................costs in Supreme Court wheTe..........................no mittimus where important..........................when judge to take note for purpose of appealspecial case, on...................................................reserving decision of ... ... ............


74 28105 40

119 45

71 2666 91

190 102/19 110

170,172 71, 72

171 72

97 37

50 , 1556 1759 19

113 43137 55137 55

138 57139 57

140 58141 58142 58143 59144 59/ 70 126/71 126y 72 127/72a 127

162 to 165 68, 69

: /79a 130i 175 101

169 70

| 3 2

53 16

106 41127 8129 47

! 145 61159 67156 99

The lilies in italics refer to the Rules and Forms.N

178 INDEX.


Leave to defend. See Final Judgment.Legacy. See also Executors and Administrators.

under a will, jurisdiction in case of distributive share of........................................................

Legal Practitioner. See also Barrister ; Solicitor. service of judgment summons on ... ... ...bill of costs of ... ... ... ... ... ...may sign notice of appeal ... ... ... ...notice may be given to, in-lieu of party ... ...

Legislative Council or Assembly, judge not to sit in ... Legislature, no jurisdiction as to offences against either

House of............................................... ...Letter to be sent with summons out of district, form of...License, bailiff need not .take out auctioneer’s..............Lien of third party on garnishee debt.........................Limitation—

of action against officer of court ... . ...under a will or settlement, no jurisdiction as to

validity of.............. ... ... ... ...statute of—

notice of plea of ... ... ... ... ...service of summons in bar of ... ... ...plea of when to be delivered ... ... ...

List— *jury—

how prepared ... ... .........................for newly proclaimed districts ... ... ...

of summonses on plaints issued to him, bailiff to * deliver ... ... ... ... ... ...

Lunatic. See Insanity.

M.Mandamus, order in lieu of .......................................Mariner, service on... ... ... ... ... ...Marriage. See Husband and Wife.Masculine included in feminine ... ... ... ...Mechanic, action by infant as .......................................Memorandum—

giving jurisdiction by consent ... ... ...to be placed at foot of process, form of ... ...

Mesne profits in plaint for recovery of possession ofland, plaintiff may claim ... ...............

Miner, service on ... ... ... ... ... ...Minister of Justice, a Crown Law Officer ...............Minor. See Infant.Minute—

of order—judge who hears judgment summons to make which is to be returned to court from which

summons issued .......................................to that effect, on receipt of, registrar to enter

final judgment .......................................of proceedings of court to be kept ...* ... ...book—

entry in, of adjournment of court ...............signed by registrar ... ... ... ...in mittimus, action to be entered in ... ...form of ... ... ... ... ... ...

Misappropriation by officers ... ... ...............

57 19

64 91149 99165 100196 103

15 5

50 15/12 109' 39 11

186,187 78, 79

46 14

56 19

71 2643,44 90

66 91

23 724 7

24 88

151 6350 90

2 8697 37

61 21/ 2 104

138 9852 90

3 2

84 33

85 33

91 3632 9

12 55 86

16 87II. 145196 81


INDEX. 179


Misdescription—when not to vitiate plaint or summons ... in affidavit ... ... ... ... •••

Misnomer, when not to vitiate plaint or summons ...Misprision of treason, no jurisdiction as to .............Mittimus—

removal of action to District Court........................of frivolous action .............................................duty of registrar on ... ... ... ••• . • ••particulars of claim in lieu of statement of claim... notice of d fence in lieu of statement of defence in • as to setting down action ... ... ...form of notice to parties ... ... ...form of certificate of result of hearing ... -. .

Money. See also Deposit; Expenses ; Payment.included in “ goods ’* ... ........................ • • •officer of court not to receive, as agent for suitors ... bailiff to pay over to registrar . ... ••• •••received under warrant executed in foreign district

Month, means calendar month .............. ..............Motion, judgment, etc., to be removed by, only as pro

vided by Act ..............................................

621S76250

129130

15,16150151 153/6 4 /65

3122931

2

149

2298 22 15

47498799 99 99

124125

2'

8788 88 86

, 62

N.

Negligence of bailiff ................................................New Trial— .

application for, not to be heard in chambers . where defendant does not appear at first trial .judge may order ...................................................Supreme Court, on appeal, may order ...............application for............... ... ...........................trial by jury may be made a condition ... ...ordered by Court of Appeal, when to be set down ... form of order for ... ... ... • • • * • •

Nolle prosequi, who may enter ... ... ... * • •Nonsuit— .

when plaintiff does not appear at trial ... ...set-off where plaintiff nonsuited ...........................

where a plaintiff omitted and does not consent to bejoined .............. ... ... •••

forms of judgment of.............. ... •••Notary, judge not to practise as.......................................Note by judge for purposes of appeal ...........................Notice—

to be sealed ...............................................................when court to be held .......................................to judge before removal from office...........................of action against officer of court ...........................of defence—

to be filed ... ... ...........................of special defence to be given............... ...where specially indorsed summons, default in

filing...............................................................not filed, judgment to be entered where ...delivery to registrar of.......................................special plea ............... ... ............... •••what special pleas, to contain ... ... • • •plea of tender ............... ...........................in final judgment summons ... ... •••amendment of particulars and pleas...............

41

14110132147159 100160 100167 100f 66 125

53 16

109 42111 43132 51

94 94if51b, 54 121,122

15 5145,146 61,62

8 412 517 646 14

67 2571 26

75, 76 28107 41

65 9166 9167 9268 9269 9270 92


180 INDEX.


N otice—continued.of defence—continued.

as to set-off where action stayed, etc.................. 71 92set-off or other defence where one or more of

several 'persons jointly liable are sued ... 72 92in lieu of statement of defence in mittimus ... 151 99form of ............... ...................................... /15 109form of plea ................................................... /16 109

of payment into court—in satisfaction ................................................... 72 27brfore judgment ... ...................................... 74 92by plaintiff of acceptance of money .............. 75 93

to plaintiff of confession of debt ........................... 73 27to parties on change of venue ........................... 101 39to other party of examination de bene esse ... 105 40for jury—

in civil action ................................................... 113 43when to be given................................................... 127 97

sent to parties in mittimus....................................... 5s 129, 130; 48,49,r 16 87

to quit, recovery of possession of land on.............. 137 55to immediate landlord by sub-tenant served with

summons for recovery of possession of land... 140 58of appeal—

to Supreme Court ............... .............. 144 59time for ............................................................... 164 100what to contain ... ... ........................... 165 100form of ............................................................... /73 127

of application for prohibition ........................... '152 64of writ of certiorari or prohibition obtained ex

parte, to whom given ...................................... 154 65of sale of land taken in execution.......................... 163 68to garnishee of attachment of debts .............. 183 78to plaintiff of non-service of summons in foreign

district ... ... ... ... ... ... 7 87to plaintiff of non-service of summons ... ... 26 88mode of service of ... ... .......................... 49 to 61 90, 91of trial, instead of judgment summons ... ... 73 92of discontinuance of action ... .......................... 76 93where action against a firm ... ... .............. 85 93to admit document ... ... .......................... 116 96to inspect document ... ... .......................... 117 96of hearing in mittimus ...................................... 152 99of judgment on reserved decision .......................... 156 99of application for new trial ... ... .............. 159 100of application to set aside award .......................... 162 100of order by Court of Appeal for new trial.............. 167 100issued with warrant of execution .......................... 170 101of sale of goods taken in execution.......................... 172,173 101as to execution against land, how published ... 175 101as to proposed sureties in bond ... .............. 189 102of deposit in lieu of bond ... .......................... 192 102to comply substantially with form.......................... 194 102what days not counted ... .......................... 195 102given to solicitor, etc., in lieu of party ..............form of memorandum to be placed at foot of ...

196 103/2 104

of service of summons, form of ... .............. /13 109of non-service of summons, form of ... ... ... /14 109of sureties, form of ... ... .......................... f 18 110of payment into court, form of ... ............... / 20 111to plaintiff of admission of claim, form of.............. / 23 111of admission of part of claim, form of .............. / 24 111


INDEX. 181

------ % Section, Rule, or Form. Page.

N otice—continued.by court to which action has been sent of day of

hearing,form of ... ... ........................... /44 118to be sent with all warrants of execution against

land and goods,_form of... ... ... ... /48 120of jury, form of registrars ... ... ... ... / S9 123to jurors that attendance not required, form of ... f 61 124to jurors of alteration of day of attendance, form

°f............... . . ... . .............................. . /62 124to be sent to parties in mittimus, form of............... f 64 124to produce, form of ee« ... ........................... /102 139of recognizance, to be given to defendant and his

bail,form of ... ... ... ... ... /107 140Number of judges............................................................ . 9 4Numbering plaints............................................................... 62 22

O.

Oath, meaning of term ... .............. ..............Offences. See also Criminal Jurisdiction.

non-attendance of jurors ....................................accounts of fines to be kept .........................note of fines to be made ... .........................officers of court acting as solicitors, etc..................inquiry into misconduct of officer of court ...prosecution of officer of court .........................person disobeying subpoena in criminal case ... witness neglecting subpoena ... ... ... ...person in court refusing to give evidence..............neglecting subpoena for examination cle bene esse ...bystander refusing to act as juror.........................neglect to appear as witness before arbitrators ... sub-tenant served with summons for recovery of

possession of land failing to notify immediatelandlord..........................................................

disobedience of order in lieu of mandamus ...application of fines ...............................................misappropriation by officers ... ... .............forging seal or serving forged process .............contempt of court ... .;. ....................... .

form of order fining a witness for non-attendance ... form of warrant of execution against land and goods

of witness ... ... ... ... ... ...form of warrant to arrest witness ... ... ...form of warrant of commitment for contempt ...

Officer of Court. See also Bailiff; Registrar.existing... ... ... ... .........................not to be concerned as solicitor or agent for suitormisconduct of ...........................................................actions against..........................................................a party, costs of action in Supreme Court, where...mandamus to ... ... ... .............. ...misappropriation by...............................................insulting an ...........................................................not to become surety ... ... .........................duty to cancel stamps on documents.........................

Order—in Council assigning court to judge.........................for payment, service of ... .........................booh—

bailiff to mahe entries in .........................form of ... ................................................

2 86

28323442444655

103103105116135

89

10121314 16 393940 44 54

140151194196197198 f 46

586381818182

119

/47 f 49 /97

119120 137

4s 42, r 12

44 45,46

127 151 196 198

13 19

312, 87

13 13, 14

47 63 81 82 87 87

1017

27X.

487

88 147


182 INDEX.


Order—continued.when not necessary to draw up ............... ... 125 97form of memorandum to he placed at foot of ... / 2 104for final judgment, form of ... ... ... ... / 30 113for change of venue, form of............... ... ... / 43 118fining a witness for non-attendance ... ... ... f 46 119for costs where plaintiff does not appear, form of... f 65 122to adjourn proceedings, form of ... ... ... / 56 122appointing guardian of infant defendant, forms of ff 57, 58 123for new trial, form of... ... ... ... ... / 66 125to rescind former order, form of ... ... ... f 67 125of reference to arbitration, form of ... ............... f 68 125for recovery of tenement, form of ... ... ...for costs of day, where rule, etc., for certiorari or

/72 127

prohibition not duly served, forms of ... ... /77, 78 129for writ of ca. sa., form of ... ... ... ... / 84 133on interpleader summons, forms of ... ... ...for examination of judgment debtor for garnishment,

#91,92 135

form of ... ... .............. ... ... /94 136garnishee,forms of ... ............... ... ...

Ordinary summons. See Summons.#95,96 136, 137

P.Parliament—

judge not to sit in ................................................... 15 5no jurisdiction as to offences against ............... 50 15altered scale of fees to be notified to both Houses 193 80

Particulars—of claim—

to be indorsed on specially indorsed summons 64, Sch. II. 22, 83to be annexed to summons and sealed ... ... 9 87

of set-off ............................................................... 67 92amendment of ... ... ............... ... ... 70 92in lieu of statement of claim in mittimus ... ... 150 99such to be sent to party under seal of court ...of chattels, etc., alleged to be property of claimant

152 99

to be given... ... ............... ............... .177 101of demand, on dispute under “ The Friendly

Societies Act, 1876 ” ....................................... 203 103of question submitted under “ The Married Women s

Property Act, 1890,” s. 21 ........................... 200 103

Partner—of registrar or bailiff not to act in other capacity 42 12of officer of court not to act as aaent for suitor ... 12 87jurisdiction in cases of partnership ............... 57 19service on ... ... ... ... ... ... 58, 59 91suing and being sued in name of firm ... ... 85, 86 93, 94of solicitor of party, affidavit not to be sworn before 138 98

Parts of Act............... ...................................................Parties. See Action ; Amendment.

1 1

Party, meaning of term................................................... 3 2

Payment—to jurors ............................................................... 30 9of jurors, abstract of ... ... ... ... /lio 143of witnesses’expenses ... ... ... ... 103 ‘ 39by instalments ... ....................................... 133 53execution suspended on ....................................... 178 74of money or costs, or both, service of order for ... 17 87


INDEX. 183


Payment—continued. into court—

in satisfaction ... ...................................... 72 27on final judgment summons ..........................where defence only as to part, on judgment

86 33

summons ... ............... .............. 87 33of amount of judgment ..........................of money paid, or recovered on securities taken

133 53

in execution ...................................... 167 69acknowledgment on ... ... ... ... 11 87where tender pleaded ... ... .............. 68 92before judgment ... ... ... ... ...of [amount of demand by executor or adminis-

74, 75 92, 93

trator, when to be made ... ... ... 111 95appropriated first toward costs..........................money paid in to be retained pending applica-

145 98

tionfor new trial ... ... ... ... 159 100in interpleader ... ... ... .............. 177 101deposit by claimant in interpleader .............. 181 102deposit in lieu of bond ... ... .............. 192 102form of notice ... ......................................

out of court—/ 20 111

as to unclaimed money in court .............. 195 81time for ..............................................................

Penal servitude for life, no jurisdiction as to felonies which, when committed by a person not pre-

10 87

viously convicted of felony, are punishable by Penalty. See Offences.

50 15

Pension of judge ... ... .............. ............. 22 7Perishable goods taken in execution ... ............. 168,169 70Person, no jurisdiction as to certain offences against the 50 15Personal actions, jurisdiction in....................................Petty Sessions District—

56 17

meaning of term ... ... ... ............. Q 2district to consist of one or more ......................... 6 3

Piecework, action by infant for......................................Place—

97 37

for holding courts ..................................................of trial. See Yenue.

Plaint—

6 3

note of, to be made by registrar ......................... 34 10action commenced by ... ... ......................... 62 22when misnomer or misdescription does not vitiate 62 22when equitable claim .................................... 63 22in replevin, form of ... ... ... .............book—

/ 33 114

time for entering plaints in ... ............. 35 89successive summonses entered in ............. 41 89form of .......................................................... I. 145

form of ... .............. .................................... / 3 104note on entering plaint (ordinary summons), form of /5 104note on entering plaint (special summons), form of

Plea/8 106

where no defence filed, form of affidavit ... ... /llD 108form of ... ... ... ... ............. f 16 109

Plural to include singular ... ..........................Police—

2 86

magistrate, jurisdiction, on attachment of goods ... officers—

136 54

duty of, when new jury lists.......................... 24 7to assist execution of warrant of commitment

Possession of land. See Land.170 71


184 INDEX.


Post—registrar may notify plaintiff of special defence by 71 26notice of payment into court in satisfaction may be

sent by ... ................................................... 72 27notice for jury may be sent by ........................... 113 43notice of mittimus may be sent by ... ............... 129,130 47, 49orders for payment may be sent by ... ... ...notice of acceptance of payment into court may be

17 87

sent by ... ... ... ... ... ...notice of appointment of taxation and bill of costs

75 93

in undefended case may be sent by ............... 149 99notice of appeal may be sent by ... ... ... 165 100notice of judgment of court of appeal may be sent by 166 100notice as to proposed sureties in bond may be sent by 189 102notice of deposit in lieu of bond may be sent by ...

Poundage of bailiff, etc., wliere goods taken in execution192 102

and landlord claims arrears of rent............... 169 70Prcecipefor warrant of execution, form of ... ... / 81 131Praemunire, no jurisdiction in ....................................... 50 15Precepts for summoning jurors ... ... ............... 27 8Prerogative, no jurisdiction as to offences against ... 50 15Prescribed, meaning of term .......................................Priority of executions issuing out of Supreme and

3 2

73District Courts................................................... 175Prison—

service on prisoner ... ... ... ... ... 51 90service on person liviny in ... ... ... ... 53 90

Process of Court—to be sealed ................................................................ 8 4mode of service of ... ... ... ... ... 49 to 6L 90,91

Proclamation—as to courts ... ... .,. ... ............... 6 3as to interval within which courts to be holden ... 12 5withdrawing criminal jurisdiction ... ... ...as to places at which judgment summonses return

able ... ............... ...........................

51 15

79 32no service of process on days proclaimed for public

fast, etc. ... ... ... ... ... ...days proclaimed for fast, etc., when not counted

62 91

in computation of time ... . ... ... ... 195 102Prohibition—

judge not to be served with notice of application for 152 64stay of proceedings on ... ... ... ... 153 65notice of writ of, obtained ex parte, to whom given forms of order for costs of day where rule, etc., not

154 65

not duly served ... ... ... ... ... #77, 78 129Promissory note. See also Bill of Exchange.

included in “goods” ... ... ... ... ... 3 2Prosecution of officer of court ....................................... ' 46 14

Q.Qualification of judge .................................................... 9 4Quarter sessions, appeal to, is to District Court ... 159 67Queen’s title, etc., no jurisdiction as to offences against 50 15

B>>

Record, court to be court of .......................................Records—

7 4

of court to be registered .......................................of Supreme Court, no jurisdiction as to offences

32 9

relating to............... ,.............. ............. . 50 1 15The lines in italics refer to the Rules and Borons.

INDEX. 185


Recognizance—to give evidence, form of ... ... ... ... /105 140of bail, form of ...................................................notice of to be given to drfendant and his bail, form

/106 140

°f........................................................................... /107 140forfeiture of certificate of form of ... ... ...

Recovery of possession of land. See Land./113 144

Reference to arbitration...................................................Registbab. See also Officer.

134 53

meaning of term ...................................................duty of—

3 2

use seal............................................................... 8 4adjourn court in absence of judge ............... 12 5generally............................................................... 32 9act as deputy sheriff ...................................... 33 10keep minutes of proceedings ........................... 34 10when to pay fees to bailiff .............. ... 40 11not act as bailiff................................................... 42 12give security ... ... ........................... 43 12enter plaint in plaint book ..........................communicate notice of special defence to

62 22

plaintiff ..................................................when judgment summons returnable at place

71 26

other than where it was issued ...............when no District Court judge present at place

81 32

where judgment summons returnable ... of court hearing judgment summons to return

to court from which summons issued the

83 32

documents in the case .......................... 85 33when to enter final judgment.......................... 91 36on change of venue ... ... ...............as to actions in which notice of defence not

101 39

filed ............................................................... 107 41notice for jury given to, and his duty thereon 113 43as to summoning jurors in civil action ... 115 44tax costs ............................................................... 121 45in mittimus ... ... .......................... 129, 130 47,49

, in action for recovery of possession of land ... 137, 139 55, 57approve security on appeal ..........................on appeal from Small Debts Court ... ...

144 59156 66

issue warrant of execution .......................... 161 68execute deed, etc., of land sold under execution 164 69issue warrant of commitment ..............receive amount necessary for discharge of

170 71

person attached ... .......................... 171 72in execution beyond district .............. 173 72enter precise time of application for warrant... inform sheriff of precise time execution issued,

174 73

and vice versd ... ... ..............on payment or tender of debt and costs

175 73

where warrant of execution issued ... 178 . 74as to interpleader ....................................... 180 75keep debt attachment book ......................... . 189 79as to unclaimed money in court .............. 195 81keep an office ... ... ............... ... 3 86keep books in prescribed form ... ............... 4 86act in court and sign minute book ... ... 5 86as to service of summons in foreign district ... annex particulars to summons, or deliver copy

7,8 . 87

of summons to bailiff ... ... ... 9 87as to searches and payment out of court ... 10 87as to payment into court... ... .............. 11 87when he has discretion as to forms .............. 14 87


186 INDEX.


Registrar—continued. duty of—continued.

as to orders for 'payment ............... ... 17 87in case of warrants to be executed in foreign

district ... ... .............. ... 18 87as to cancelling stamps on documents ... ... 19 87on renewal of judgment summons ... ... 48 90where action brought against a firm ... ... 85 93give notice of hearing in mittimus ... ... 152 99on judgment on reserved decision ... ... 156 99on issuing warrant of execution ... ... 170 101in interpleader ... ... .............. ... 177 101issue interpleader summons ... ... ... 178 101as to chamber business ... ... ... ... 184 to 186 102as to giving security ... ... ... £ 189 to 191,

193102

Governor in Council appoints .......................... 31 9’when a clerk of petty sessions is registrar, his

successor or deputy is ... ............... ... 35 10inquiry into misconduct of....................................... 44 13may issue subpoenas in criminal cases ............... 55 16defendant may confess debt in presence of ... 73 27agreement between parties as to amount of debt,

etc., made in presence of ........................... 74 28may take evidence de bene esse ........................... 105 40affidavits may be sworn before, without issue of

commission ................................................... 119 45power of, as to attachment of goods of defendant... 136 54notice of rule or summons in certiorari or prohibi

tion given to ... ... ... ... ... 153 65notice of writ of certiorari or prohibition obtained

ex parte to be given to ... ................ ... 154 65sign and issue summonses and warrants forthwith 6 86bailiff to deliver to, list of summonses on plaints

isstced to him ... ... ... ... ... 24 88bailiff to pay moneys received to ... ... ... 29 88return to, of warrants unexecuted in foreign district moneys received under warrant executed in foreign

30 88

district to be transmitted to ... ... ... 31 88notice of special defence delivered to ... ... 65 91confession of judgment delivered to ... ... ... 77 93when appointed guardian of infant defendant ... 124 97notice of demand of jury given to ... ... ... 127 97notice of application for new trial given to... ... 159 100notice of appeal served on ... ... ............... 165 100gives notice of order by Court of Appeal for new trial 167 100when he may give leave for issue of concurrent war

rants of execution ... ... ... ... 174 101form of his notice of jury ... ... ... ... / 59 123

office of—notice when court to be holden to be put up in memorandum for consent jurisdiction filed in

12 561 21

subpoena to witness obtained at ................. 102 39deposit in, by party requiring jury ................. 114 44deposit in, on appeal to Supreme Court ...list of fees put up in ... ..............................

144 59192 80

bailiff to attend ... ... ... ... ... 21 87affidavits on judgment summons when filed in 81 93affidavit filed in ... ............... ............... 134 98bill of costs filed in ... ... ... ... 149 99in mittimus, particulars of claim in lieu of

statement of claim filed in............... ... 150 99


INDEX. 187

Registrar—continued. office of—continued.

copy of judgment of Court of Appeal deposited in particulars of chattels, etc., claimed in inter

pleader to be left at... ... ... ...Registration of warrant of execution as to land not

under Real Property Act ..............................'Remitted actions. See Mittimus.Removal—

of judge ... ................. * ... ................of action to District Court. See Mittimus.

or judgment only as provided by Act ...by certiorari ................. ................. ...

of goods of defendant projected ..............................of property, attachment of person where................

Renewal of final judgment summons not served... ...Rent. See Land.Repeal .....................................................................................Replevin—

jury in action of ... ... ... ... ...when appeal to Supreme Court lies .................when goods taken in execution ..............................no other cause of action to be joined in summons ...form of plaint in ................. ..............................

Retirement of judge compulsory ..............................Retiring allowance of judge ............................................Return day, meaning of term ... ... ... ...Returns—

to executions, note of, to be made by registrar ...of warrants executed in foreign district ................baiUff to make ... ................. ..............................as to warrants in foreign district ... ... ...of service of jurors, form of ... ... ... ...of summonses, form of... ... ... ... ...to warrants, form of.............. ... ... ...

Review of taxation of costs ............................................Rules op Couet—

meaning of term ................. ..............................bailiffs and officers to conform to..............................power to make................. ................. ................as to stamps, poioer to make...........................................

S.

Sailor, service on ... ... ............... ...Salaey—

of judge .............................................of bailiff .............................................

Sale—of goods of defendant projected .............after execution. See Execution.

Scale of Fees—under the Act ...................................schedule of, to form part of rules ... ...on taxation as between party and party ...

Scire facias, proceedings in nature of—execution, how issued aaainst person not party suing executors or administrators on judgment forms of summons in nature of ... ...forms of judgment ... ... ... ...


166 100

177 101

165 69

17 6

149 62150 63136 54170 71

47, 48 90

4, Sch. I. 3, 83

113 43144 59169 70

32 8833 88

17, 22 6, 722 7

3 2

34 10173 7220 87

30, 31 88/109 142VIII. 146

IX. 146121 45

3 238 11

191 79197 81

49 90

16 540 11

136 54

192 to 194, 00 o 00

t—1

Sch. IY. 851 86

... 147

157 100158 100

jf 98, 99 138#100, 101 138


188 INDEX.


Seal—specially indorsed summons where debt arises on

contract under ... ....................................... 64, Sch. II. 22, 83Seal of Court—

provided for ............................................................... 8 4evidence of entries under ... ........................... 34 10summons to be under................................................... 62 22warrant of execution, etc., sent to foreign district

to be sealed ... ...................................... . 173 72forgery of .......................... . .?. ............... 197 81meaning of term “ sealed" ... ... ... ... 2 86particulars to be sealed ... ... ... ... 9 87stamped document not to be sealed till stamp can

celled ... ... ... ... ... ... 19 87renewed judgment summons to be sealed ... ... 48 90particulars in lieu of statement of claim in mittimus

to be sealed ... ... ... ... ... 152 99affidavits in chamber business to be sealed ... ... 186 102

Searches, when to be made ... ... ... ... 10 87Securities—

for money included in “ goods ” ........................... 3 2seized to be held by bailiff....................................... 167 69

Security—registrar and bailiff to give....................................... 43 12for costs where leave to defend ... ... ... 90 34for costs where trustee of insolvent plaintiff, elects

to continue action ... ... ... ... 94 37where defendant, not appearing at trial, seeks to

set aside judgment ... ... ... ... 110 42for costs of defendant in Supreme Court, when

ordered ............................................................... 130 , , 49by plaintiff on issue of warrant of attachment and

seizure ............................................................... 136 54sureties on attachment for goods ............... ... 136 54on appeal to Supreme Court....................................... 144 59in certiorari ... ... ... ... ... ... 150 63who may not give ... ... ... ... ... 13 87for witnesses' expenses... ... ... ... ... 115 96on appeal, time for giving ... ... ... ... 164 100service of notice of names, etc., proposed in bond ... 189 102affidavit of justification made by proposed sureties 190 102bond, before whom executed ... ... ... ... 191 102deposit of money in lieu of ... ... ... ... 192 102bond to be deposited with registrar ... ... ... 193 102

form of notice of sureties ... ... ... ... /IB 110form of affidavit of justification ... ... ... /19 110forms of bond on appeal ... ... ... ... #74, 75 127,128

Seizure and Sale. See Execution.Servant— .

of registrar not to act as bailiff ........................... 42 12action by infant as ................................................... 97 37

Service—of summons—

by bailiff............................................................... 38 11or subpoena, when fees for, to be paid to bailiff 40 11on defendant ............... ............... 62 22how effected ................................................... 65 25to recover possession of land, when to stand,

instead of demand and re-entry ... ... 139 57in action for recovery of possession of land,

mode of .................................................... 141 . 58of rule or summons in certiorari and prohibi

tion, to whom given ... ... ... 153 65

The lines in italics refer to the .Rules and Forms.

INDEX. 189


Service—continued.of summons—continued.

inforeiqn district ... ... ... ... 7,8 87bailiff's duties as to ...................................... 22 to 26 88issue of successive summonses when original,

not served ... ... ... ... ... 41 . 89when summons to be served ... ... ... 42 90renewal of judgment summons not served ... 47 90of judgment summons ...................................... 64 91of interpleader summons .......................... 177 101on garnishee or third 'person or any other person 182,183 f02form of notice of service...................................... /13 109form of notice of non-service ... ... ... /14 109

generally—proof of .............................................................. 66 25on persons jointly liable...................................... 95 37of forged process wilfully .......................... 197 81where defendant aboard ship.......................... 49 90on soldiers and marines...................................... 50 90on prisoners ... ... ... ... ... 51 90on miner ... ... ... ... ... ... 52 90on persons in lunatic or other asylum, or gaol,

etc.................................................................... 53 90where defendant keeps his house or place of

business closed ... ... ... ... 54 91where bailiff prevented by violence or threats... 55 91where process has come to knowledge of defen

dant before time limited by rules.............. 56 91on infant ... ... ...................................... 57 91on partners ... ... ... ... ... 58, 59 91where husband and wife are both defendants ... 60 91above rules, as to the mode, applied to all process 61 91days exempt from service .......................... 62 91disputes or doubts as to due service, how settled 63 91proceedings where some of the defendants not

served ... ...................................... 96 95form of statement of service by person other

than bailiff........................... ... ... flO 107form of deposition of service by bailiff.............. f 11 107

of ordinary summons, form of affidavit .............. f Ha 108of special summons, form of affidavit .............. /11b 108of summons by bailiff, form of affidavit .............. / He 108of subpoena—

generally.............................................................. 102 39to attend before arbitrators .......................... 135 54time for ... ... ... ... .............. 114 96

of order in lieu of mandamus ... ... ... 151 63of notice of application for prohibition ... ... 152 64of garnishee order ... ...................................... 183 78of orders for payment of money or costs, etc. ... 17 87of order of adjournment unnecessary ... ... 120 96

, of copy of affidavit ... ...................................... 140 98of appointment of taxation...................................... 149 99of appointment of taxation ... ... .............. 149 99of affidavit in support of application to set aside

award ... ... .............. .............. 163 100of notice of appeal ... ...................................... 165 100of copies of affidavits in chamber business.............. 188 102of particulars of question under “ The ’Married

Womens Property Act, 1890,” s. 21.............. 200 103Set-off—

cross action may be pleaded by way of ............. 68 26equitable claim may be pleaded by way of ... 69 26

The lines in italics refer to the Kules and Forms.

190 INDEX.


Set-off—continued26notice to be given to registrar of ........................... 71

final judgment for .................................................. 89 34when it exceeds the plaintiff’s claim ............... 111 43cross judgments to be set off ........................... 179 74plea of,\ token to be delivered ... ... ... ... 66 91plea of, what to contain ... .............. ... 67 92where action stayed, etc. ... ... ... ... 71 92where one or more of several persons jointly liable

72 92are sued ... ... ... ... ... ...* in case person admits he was the person intended

87 94to be charged ..................................................where person wrongfully sued in representative

88 94character ... ... ... .............. ...where person ought to have been sued in repre-

94sentative character ........................... ... 89where plaintiffs name, etc,, in summons is insujfi-

90 94dent or incorrect .......................... ...where defendant's name, etc., in summons is insuffi-

91 94dent or incorrect... ... .............. ...where too many plaintiffs improperly joined ... 93 94tohere a plaintiff improperly omitted ... ... 94 94where too many defendants improperly joined ... 95 95where some dffendants not served ... ... ... 96 95

Setting aside— judgment—

42against defendant not appearing at trial ... 110where goods attached ....................................... 136 54

proceedings, procedure as to ... .............. ... 159 100award of arbitrators ... ... ............... ... 134 53

Settlement, no jurisdiction as to limitation under a ... 56 17Sheriff—

10registrar to act as deputy ........................... ... 33to inform registrar of precise time execution issued,

175 73and vice versa ... ... ............... ...Ship, service of ordinary summons where defendant

49 90aboard ... ... ... ............... ... ...Short title ... ... ........................... ............... 1 1Sickness. See Illness.Singular to include plural... ... ... ,., ... 2 86Small Debts Court—

meaning of term ... ... ... ... ... 3 2when fees paid on scale of...................................... 122 46appeal from ... ... ... ... .............. 156,157 66,67

Soldier, service on ... ... ... ... ... ... 50 90Solicitor— .

when he may be judge ... ... .............. 9 4judge not to practise as ....................................... 15 5may be deputy judge................................................... 19 6officer of court not to act as.................................. 42 12no privilege to exempt him from provisions of Act 47 14party may appear by............................................. 48 14

* may consent to jurisdiction.................................. 61 21defendant may confess debt in presence of ... 73 27agreement between parties as to amount of debt,

etc., made in presence of ... ............. 74 28may take evidence de bene esse ... .............. 105 40fees to............. ... ... ... ............. 122 46and client, costs between ...................................... 125 46notice of mittimus sent to ... ... ............. 129,130 47,49may consent to payment by instalments .............. 133 53of party, appellant may give notice of appeal to ... 144 59may agree not to appeal .................................. 148 C2


INDEX. 191

—Section, Rule,

or Form. Page.

Solicitor—continued.affidavit of, for garnishee order .. .............. 182 76not to become surety ... ... ... ... ... 13 s 87service of judgment summons on ... ... ... 64 91notice of discontinuance sent to ... ... ... 76 93not to be heard until admitted to 'practice ... ... 123 97of party, affidavit not to be sworn before ... ... 138 98filing bill of costs by ... .............. .............. 149 99signs particulars of claim in mittimus ... ... 150 99may sign notice of appeal ... ... ... ... 165 100notice to, in lieu of party ............... ... ... 196 103scale of fees ... ... ... ... ... ... ... 147

Solicitor-General, a Crown Law Officer ............... 3 2Special—

jurors—27 8summoning ... ......................................

for trial of action ...................................... 29 9indorsement to summons. See Final Judgment.case to Supreme Court in appeals.......................... .159 67summons. See Final Judgment.

Specialties—included in “ goods ”.......................... .............. 3 2seized in execution .......................... .............. 167 69

Splitting demands.............................................................. 99,100 38Stamps—

on documents, cancellation of............. ............. 19 87on affidavit ... ... ... ... ... ... 134 98fees of court collected by means of ... ............. 197 103rules as to use of ... ... ... ... ... 198,199 103

Statute, specially indorsed summons where debt arises in 64, Sch. II. 22,83Statutory—

affirmation included in “ Oath ” ... ... ... 2 86declarations included in “ Affidavit ” ... ...

Stay of Proceedings. See also Abatement; Discon2 86

tinuance.of frivolous action ............................................. 130 49when new trial ordered .................................. 132 51for recovery of possession when rent in arrear ... of execution, rule as to, in case of appeal to

139 57

Supreme Court..................... . 144 59on certiorari and prohibition............. ... ...of judgment or execution for sickness, etc., of

153 65

defendant............. ............. ............. 177 74set-off may be proved on stay of action ... ... 71 92on payment into court... ... ... ... ... 75 93

Striking out Action—on default of appearance of both parties ... ... 109 42or appeal where no jurisdiction ... ............. 124 46

Subpoena to witness. See Evidence.prcecipefor, form of ... ............. ............. /45a 118for Crown, form of ... ... ... ... ... /103 139prisoner, form of ... ... ... ... ...

Sub-tenant served with summons for recovery of posses/104 139

sion of land, duty of .................................. 140 58Successive summonses. See Summons.Summons. See also Certiorari; Final Judgment; Inter

pleader ; Land; Prohibition; Service.to be sealed ............. ... .. ............. 8 4to jurors—

form of ... ... ... ... ... ... ff60, 60a 123in civil action ............................................. 115 44

generally ........................................................ 26 8precepts for ... .................................. 27 8


192 INDEX.

'------ Section, Buie, or Form. Page.

Summons—continued.registrar signs and issues ....................................... 32 9note of, to be made by registrar ........................... 34 10issue of ... ............................................................... 62 22when misnomer or misdescription does not vitiate 62 22to garnishee ... ... ... ... ... ...to third party who has lien, etc., on garnishee debt

182 76186,187 78,79

signing and issue of ... ... ... ... ... 6 86'particulars to be annexed to ... ... ... ... 9 87bailiff to compare his copy with original ... ... 21 87ordinary—

meaning of term ... ... ... ... ... 2 - 86form of and date ... ... ... ... 40 89successive summonses when issued without leave 43 90form of ... ... ... ... ............... /7 105

judgment, form of ... ... ... ............... /9a 107when judgment against executor, etc., of assets

quando acciderint ... ... ... ... 110 96in chamber business, what to set out... ... ... 186 102form of memorandum to be placed at foot of ... /2 104out of district, form of letter to be sent with ... /12 109to executor of intention to apply to court when assets

have come to defendant's hand since judgment, form of . ... ... ... ... ... ... / 40 116

for writ of ca. sa., form of ... ... ... ... / 83 132in nature of scire facias, forms of ... ... ... #98, 99 137form of return to ... ............... ... ... Till. 146

Sunday—warrant of commitment may be executed on ... 170 72no service of process on ... ... ... ... 62 91when not counted in time allowed for notice, etc. ... 195 102

Supbeme Coubt. See also Appeal; Costs ; Mittimus, no jurisdiction as to offences relating to records of 50 15judge—

may change venue in criminal cases............... 52 16when to hear final judgment summons ... 83 32or commissioner for taking affidavits in,

affidavits may be sworn before ... ... 119 45on circuit,. appeal to, is heard by District

Court judge ... ... ... ... ... 159 67two, may approve rules of court ... ... 191 79

(in error) tries issues of law in criminal cases ... 53 16commissioner of, may take evidence de bene esse ... 105 40rules of evidence observed in, to apply ... ... 117 45removal of action into, by certiorari ... ... 150 63jurisdiction to grant order in lieu of mandamus to

judge or officer of District Court ............... 151 63special case to, on question of law...........................action in, on judgment obtained in District Court... jurisdiction, as to execution against the person ..,

159 67160 68170 71

priority of executions issuing out of, and District Court ................................................................ 175 73

when rules of court of, are to be adopted........... 191 79Surety. See Security.Suspension—

of bailiff and his assistant .............................. 36 10of execution, by judge in certain cases ........... 177 74

when notice of application to be given 176 101Sworn, meaning of term ................................................... 2 86


INDEX. 193


T.Tales, when judge may nominate jury from bystanders 116 44Taxation—

of costs... ... ... .................... ... 5 121, r 149 45,62fixed costs in lieu of...................................... 123 46between solicitor and client............................. 125 46

Tenancy in common, who is landlord where ... ... 3 2Tenant See Land.Tendeb—

of amends in action against officer of court ... 46 14of expenses to witness .............................of debt, etc., where execution issued ...........

103 39178 74

plea of ... ... ... ............................. 68 92Tenement, warrant for giving possession of, form of ... /72a 127Terms, meaning of ... ...................................... s 3, r 2 2, 86Testamentary papers, no jurisdiction tvith respect to

certain offences relating to .................... 50 15Threats, service where bailiff prevented by ... ... 55 91Time—

commencement o? Act ............................. 2 1when practitioners eligible as judges ........... 9, 19 4,6for holding court ...................................... 12 5for judge to be heard in defence where notice of

removal ... ...................................... 17 6when retiring allowance of judge accrues........... 22 :for justices to prepare jury lists in new districts... 24 7for judge to make up jury book...................... 25 8for payment of fees to bailiff ... ... ... ■ 40 11limitation of action, etc., against officer of court ... 46 12for giving notice of action against officer of court 46 12when proclamation withdrawing criminal jurisdic

tion takes effect...................................... 51 15for filing memorandum of consent jurisdiction ... 61 21for endorsing on process, the date of service ... 65 25for filing notice of defence............................. s 67, r 65 25, 91for registrar to communicate notice of special

defence to plaintiff ................... . ... 71 26for sending to plaintiff’, notice of confession of debt 73 27when judgment summons returnable ........... 78 31for Supreme Court judge to hear final judgment

summons in absence of District Court judge... 83 32when registrar to enter final judgment ........... 91 36when registrar to call over list of actions in which

no notice of defence filed ........... ... 107 41judge may grant ............ ........... ... 112 43for satisfying judgment ... .................... 133 53for setting aside, etc., award of arbitrators ... 134 53for bailiff to execute warrant of attachment and

seizure, and to return same .................... 136 54for giving bail on attachment of goods .. ... 136 54when landlord may recover possession of land for

non-payment of rent ............................. 139 57for paying rent in arrear in order to stay action for

recovery of possession............................. 139 57for sub-tenant, served with summons for recovery

of possession of land, to notify immediate landlord............................................... 140 58

for bailiff to enter on land under authority of warrant ............................................... 142 58

currency of warrant for recovery of possession of land ............................................... 143 59

The lines in italics refer to the Rules and Forms.O

J

194 INDEX.

Section, Rule, ov Form. Page.

Time—continued.for service of rule, etc., in certiorari and prohibition 153 65for notice of writ of prohibition or certiorari obtained

ex parte ... ... ... ... ... ... 154. 65for transmitting notes of evidence on appeal from

Small Debts Court ... ... ... ... 156 66for sale of goods taken in execution ... ... 168, 169 70after goods seized, when landlord may claim rent

in arrear....................................... ............... 169 70of application for warrant of execution to be

entered ... ... ... ............... ... 174 73priority of executions issuing out of Supreme and

District Courts ... ... ... ... ... 175 73when rules of court to take effect ... ... ... 191 79for paying fees of court ....................................... 192 79for altered scale of fees to come into force... ... 193 79for claiming payment out of money in court ... 195 81for registrar to sign and issue summonses and

warrants ... .. ... ... ... ... 6 86for giving notice to plaintiff of non-service of

87summons in foreign districts ... ... ... 7for searches and payment out of court ... ... 10 87for registrar to apply to judge to fix day for hearing

15 87in mittimus ... ... ... ... ...for entering warrant in foreign execution re-issued

18 87for cancelling stamps on documents ... ... ... 19 87for return of service of summons from foreign to

home district ... ... ... ... ... 23 88for bailiff to deliver to registrar list of summonses

on plaints issued to him ... ... ... ... 24 88for return of summons to bailiff, where party serves it 25 88for giving to plaintiff notice of non-service of

26 88summons ... ... ... ... ... ...for bailiff to pay over money received to registrar... 29 88for return, as to warrants not executed in foreign

district ... ... ... ... ... ... 30 88for return, as to warrant executed in foreign district 31 88for entering plaints in plaint booh ... ... ... 35 89of commencement of action ... ... ... ... 40 89

for issue of successive summonses ... ... ... 41 89for service (f summons ... ... ... ... 42 90currency of successive summons in bar of limitation 43 90of commencement of action on special summons ... 45 90currency of final judgment summons ... ... 46 90

for notice of defence in ordinary summons ... ... 65 91for delivering notice of special defence ... ... 66 91for delivery of specia l pleas ... ... ... ... 66 91for notice of trial in lieu of judgment summons ... 73 92for payment into court b fore judgment ... ... 74 92for confession of judgment ... ... ... ... 77 93when judgment summons returnable... ... ... 79 93for setting down action for hearing after leave to

defend ... ... ... ... ... ... 80 93for filing affidavits on judgment summons ... ... . 81 93for service of subpoena... ... ............... ... 114 96for giving notice to admit document... ... ... 116 96for giving notice to inspect document ... ... 117 96for notice of demand of a jury ... ... ... 127 97for service of copy of affidavit ... ... ... 140 98possession fee where execution paid out at time of levy 148 99for filing bill of costs ... ... ... ... ... 149 99for service of appointment of taxation ... ... 149 99

The lines in italics refer to the Rules and Forms

INDEX. 195

Section, Rule,or Form. Page.

Time—continued.for setting doion actions in mittimus ... ... 153 99for'payment by instalments ... ... ... ... 155 99for judgment where judge reserves his decision ... 156 99for application for new trial... ... ... ... 159 100for making order to refer to arbitration ... ... 161 100for notice to set aside award ... ... ... ... 162 100for notice of appeal and giving security ... ... 164 100for sending notice of judgment of Court of Appeal... 166 100for setting doion new trial ordered by Court of Appeal 167 100date and currency of warrant of execution ... ... 169 101for notice of day of sale of goods to be sold in execution 172,173 101for notice as to execution against land ... ... 175 101for notice of application to suspend execution ...for claimant to give particulars of chattels, etc.,

176 101

claimed by him .... ;.. ... ... ... 177 101for service of summons on garnishee or third person

or any other person ... ... ... ... 182,183 102for serving affidavits in chamber business ... ... 188 102for giving notice as to proposed sureties in bond ... 189 102for giving notice of deposit in lieu of bond ... ... 192 102what days not counted in giving notice, etc. ... 195 102

'Title to Lands—no jurisdiction as to certain offences relating to

documents evidencing ... ... ... ... 50 15jurisdiction as to ............... ............... ... 56 17sold under execution ... ... ... ... ... 164,165 69

Tools, when exempt from execution ... ... ...Tort—

166 69

notice of plea of justification in action of ... ...what actions of, may be referred from Supreme to

71 26

District Court ... ... ... ... ... 130 49plea of justification, when to be delivered ... ... 66 91

Townsville, final judgment summonses returnable at ... Travelling Expenses—

79 32

of judge-exclusive of salary ... ... ... ... 16 5

# none, except to attend court ........................... 18 £of juror........................................................................... 30 9

Treason, no jurisdiction as to .......................................Trial. See also Appeal; New Trial; Yenue.

50 15

not to be held in chambers ... ... ... ... 14 5special jurors for .................................................... 29 9meaning of term ... ... ... ... ... 2 86when copy of summons to be produced at ... ... 22 88

Trustee of insolvent plaintiff may continue action ... 94 37

U.Unclaimed money in court ........................... ...Undertaking by next friend of infant to be responsible

195 81

for defendant's costs, form of ... ... ... /6 105

V.Yenue—

change of, in criminal cases....................................... 52 16when leave to defend.................................... . 92 36change of, in civil cases ............... ... .. 101 39form of order for changing ... ... ... ...form of notice by court to which action has been sent

f 43 118

of day of hearing ... ... ... ... f 44 118YfOLENCE—

service where bailiff prevented by ... ... ... 55 91


196 INDEX.


w.

Wages, action for, by infant ......................................... 97 37~Warder, service on... ... .. .. ... ... ... 53 90Wabbant. See also Attachment;; Execution.

to be sealed ... ... — ........................... 8 4registrar signs and issues ..... ... ... ... 32 9executed by bailiffs ... ..... ... ... ... 38 11evidence of, in action againast t officer of court ... 45 13to apprehend witness, negleectiting subpoena.............. 104 40for recovery of possession oof : land—

j, issue of ............... ......................................... 137,139 55,57sufficient authority to bbaailiff ........................... 142 58in force for three montthss ........................... 143 59

for giving 'possession of tenevmaent,form of ... ... / 72a 127signing, and issue of ... ..... ... ... ... 6 86to be executed in foreign diisHrict, duty of registrar

where ... ... ..... ... ... ... 18 87booh, bailiff to make entriess iin ........................... 28 88bailiff to give information to > sumtors as to execution of • 28 88bailiff to pay money levied tto > registrar ............... *9 88not executed in foreign distiridct ... .............. 30 88executed in foreign districts, i return as to.............. 31 88

form of memorandum to be jphlaced at foot of ... / 2 104of apprehension, form of ......................................... /108 141return to,form of ... .... ... ... ... / H2 144booh, form of ... ... .... ... ... ... VII. 146

Wasting assets. See Executorss aand Administrators. Wearing apparel, when exemptt frfrom execution ...Wife. See Husband and Wifee.Will. See also Executors andd ^Administrators.

no jurisdiction as to certaiin ooffences with respect to

166 69

50 15no jurisdiction as to validiityy of devise, etc., under 56 17jurisdiction in cases of ddisstributive shares under

an intestacy, or of leg^accy under a ............... 57 19Withdrawal by plaintiff ... ....................................... 75 96Witnesses. See Evidence; Suibppoena.Wbit —

of ca. sa. See Ca. Sa. of certiorari. See Certiorrarri. of error, judgment, etc., ODnlily to be removed by, as

provided by Act ... ... ........................... 149 62'of prohibition. See Prohiibbition.

Wrongful dismissal, plea of jjustification, when to be delivered ... ... ... ... ... ... 66 91

The lines in iitahlics refer to the Rules and Forms.

By Authority: James 0. BiEA&L, Government Printer, William street, Brisbane^