3

Ante, p. 147.

Ante, p. 145.

Ante, p. 150.

EJECTMENT.

112. No judgment in ejectment for want of appearance or defence, whether limited or otherwise, shall be signed without first filing an affidavit of the service of the writ, according to the Common Law Procedure Act, 1852, and a copy thereof, or, where personal service has not been effected, without first obtaining a judge's order or a rule of court authorizing the signing such judgment; which said rule or order, or a duplicate thereof, shall be filed, together with a copy of the writ.

113. Where a person not named in the writ in ejectment has obtained leave of the court or a judge to appear and defend, he shall enter an appearance according to the Common Law Procedure Act, 1852, entitled in the action against the party or parties named in the writ as defendant or defendants, and shall forthwith give notice of such appearance to the plaintiff's attorney, or to the plaintiff, if he sues in

person.

114. If the plaintiff in ejectment appears at the trial, and the defendant does not appear, the defendant shall be taken to have admitted the plaintiff's title, and the verdict shall be entered for the plaintiff, without producing any evidence, and the plaintiff shall have judgment for his costs of suit as in other

cases.

See Pl. R. T. T. 1853, r. 29, post.

CAUSES REMOVED FROM INFERIOR COURTS.

115. Rules to appear in causes removed from inferior courts shall in all cases be a four-day rule, both in term and vacation.

116. In cases of removal of causes from inferior courts by habeas corpus, where bail is required to be put in on behalf of the defendant, the same practice shall be used, as near as may be, as in putting in bail to an ordinary action, and, in the event of no bail being put in within eight days after the habeas corpus allowed, a procedendo may issue.

117. If a cause be removed from an inferior court having jurisdiction of the cause, the costs in the court below shall be costs in the cause.

PENAL ACTIONS, COMPOUNDing of.

118. Leave to compound a penal action shall not be given in cases where part of the penalty goes to the Crown, unless notice shall have been given to the proper officer; but in other cases it may.

The application for leave to compound cannot be made till after plea pleaded (Rex v. Collier, 2 Dowl. 581).

119. The rule for compounding any qui tam action shall express therein that the defendant thereby undertakes to pay the sum for which the court has given him leave to compound such action.

120. When leave is given by the Court of Queen's Bench to compound a penal action, the Queen's half of the composition shall be paid into the hands of the Master of the Crown-office for the use of Her Majesty.

PAUPERS, ACTIONS BY.

121. No person shall be permitted to sue in formá pauperis unless the case laid before counsel for his opinion, and his opinion thereon, with an affidavit of the party or his attorney that the same case contains a full and true statement of all the material facts, to the best of his knowledge and belief, shall be produced before the court or judge to whom application may be made; and no fees shall be payable by a pauper to his counsel and attorney, nor at the offices of the Masters, or associates, or at the judge's chambers or elsewhere, by reason of a verdict being found for such pauper exceeding five pounds.

The former part of this rule was framed, it is said, to check the too great facility with which certificates were obtained from counsel, and the latter part, to prevent speculation in such actions.

See hereon Dooly v. G. N. R. Company (4 E. & B. 341, & S. C. 2 E. & E. 576. S. C. sub nom.; Dewley v. G. N. R. Company, L. J. 24, Q. B. 25; and S. C. L. J. 29, Q. B. 83); and as to the effect of dispaupering a plaintiff, Holmes v. Penney (9 Exch. 584).

See also Pl. R. T. T. 1853, r. 28, post; and Seymour v. Maddox (1 L. M. & P. 543; L. J. 19, Q. B. 525).

122. Where a pauper omits to proceed to trial pur- Ante, p. 89.

suant to notice, he may be called upon by a rule to

show cause why he should not pay costs, though he

has not been dispaupered, and why all further proceedings should not be stayed until such costs shall be paid.

See Doe d. Linsey v. Edwards (2 Dowl. 468, 471); Tempany v. Rigby (10 Exch. 476).

PRISONERS, AND PROCEEDINGS AGAINST.

123. Every rule or order of a judge directing the discharge of a defendant out of custody upon special bail being put in and perfected, shall also direct a supersedeas to issue forthwith where defendant is in a county gaol.

124. The plaintiff shall proceed to trial, or final judgment, against a prisoner in the term next after issue is joined, or at the sittings or assizes next after such term, unless the court or a judge shall otherwise order, and shall cause the defendant to be charged in execution within the term next after such trial or judgment.

125. The keeper of the Queen's prison shall present to the judges of the courts in their respective chambers at Westminster, within the first four days of every term, a list of all such prisoners as are supersedeable, showing as to what actions and on what account they are so, and as to what actions (if any) they still remain not supersedeable.

Siggers v. Brett (5 B. & A. 455).

126. If, by reason of any writ of error, special order of the court, agreement of parties, or other special matter, any person detained in the actual custody of the keeper of the Queen's prison be not enti tled to a supersedeas or discharge for want of proceeding to trial or judgment, or charging in execution, within the time prescribed, then and in every such case the plaintiff or plaintiffs at whose suit such prisoner shall be so detained in custody shall with all convenient speed give notice in writing of such writ of error, special order, agreement, or other special matter, to the keeper, upon pain of losing the right to detain such prisoner in custody by reason of such special matter; and the keeper shall forthwith after the receipt of such notice cause the matter thereof to be entered in the books of the prison, and shall

also present to the judges of the respective courts, from time to time, a list of the prisoners to whom such special matter shall relate, showing such special matter, together with the list of the prisoners supersedeable.

127. All prisoners who have been, or shall be, in the custody of the keeper for the space of one calendar month after they are supersedeable, although not superseded, shall be forthwith discharged out of the Queen's prison as to all such actions in which they have been or shall be supersedeable.

128. After notice given to any plaintiff by a prisoner of his intention to apply for his discharge under any act for the relief of insolvent debtors, no such prisoner shall be superseded or discharged out of custody at the suit of such plaintiff, by reason of such plaintiff's forbearing to proceed against him according to the rules and practice of the courts from the time of such notice given, until some rule or order shall be made in the cause in that behalf.

129. A rule or order for the discharge of a prisoner who has been detained in execution a year for a sum under twenty pounds may be made absolute in the first instance, on an affidavit of notice given ten days before the intended application, which notice may be given before the year expires.

48 Geo. 3, c. 123, s. 1.

This rule applies in actions for torts, as well as upon contracts (Passingham v. Witherden, 2 C. L. R. 777; Bail C. T. T. 1854, cor Wightman, J.).

The notice may be given to the executor of a deceased plaintiff (Cook v. Beardsall, 9 W. R. 790, Ex. T. T. 1861).

It would seem that notice to one of more plaintiffs is sufficient (Harris and Another v. Turtle, 8 M. & W. 258).

Where due notice has not been given, the rule is nisi only, in the first instance (Doye v. Eley, 3 C. B. N. S. 764).

SHERIFFS.-RULES TO RETURN WRITS OR BRING IN THE BODY.

130. All rules upon the sheriffs of London and Middlesex to return writs or to bring in the bodies of defendants shall be four-day rules, and upon other sheriffs eight-day rules.

131. When a rule to return a writ expires in vaca

tion, the sheriff shall file the writ at the expiration of the rule, or as soon after as the office shall be open; and the officer with whom it is filed shall indorse the day and hour when it was filed.

132. No judge's order shall issue for the return of any writ, or to bring in the body of a defendant, but a side-bar rule shall issue for that purpose in vacation as in term, which shall be of the same force and effect as side-bar rules made for that purpose in term.

133. In case a rule shall issue in vacation, for the return of any writ of capias, ca. sa., fi. fa., elegit, habere facias possessionem, venditioni exponas, or other writ of execution, and such rule shall have been duly served, but obedience shall not have been paid thereto, an attachment shall issue for disobedience of such rule, whether the thing required by such rule shall or shall not have been done in the meantime.

134. Where any sheriff, before his going out of office, shall arrest any defendant and take a bail bond and make return of cepi corpus, he shall and may within the time allowed by law be called upon to bring in the body by a rule for that purpose, notwithstanding he may be out of office before such rule shall be granted.

IRREGULARITY.

135. No application to set aside process or proceedings for irregularity shall be allowed unless made within a reasonable time, nor if the party applying has taken a fresh step after knowledge of the irregularity.

See ante, as to irregularity:-In the writ, C. L. P. A. 1852, s. 20 (p. 28); in the pleadings generally, Ib. s. 49 (p. 51); in the declaration, Ib. s. 59 (p. 59); in the notice to plead, Ib. s. 62 (p. 65); in the plea, Ib. s. 67 (p. 67); in paying money into court, Ib. s. 72 (p. 74); in a demurrer, Ib. s. 89 (p. 83); in the notice of trial. Ib. s. 97 (p. 90); and in the service of rules and orders, Ib. s. 222 (p. 175).

This rule applies in the case of prisoners as well as in other cases (Claridge v. Mackenzie, 5 M. & G. 251).

136. Where a summons is obtained to set aside proceedings for irregularity, the several objections intended to be insisted upon shall be stated therein. Ante, p. 29.