137. In all cases where a rule is obtained to show cause why proceedings should not be set aside for irregularity with costs, and such rule is afterwards discharged generally without any special direction upon the matter of costs, it is to be understood as discharged with costs.

AFFIDAVITS.

138. The addition and true place of abode of every Ante, pp. 20. person making an affidavit should be inserted therein. 21.

139. In every affidavit made by two or more deponents, the names of the several persons making such affidavit shall be written in the jurat.

140. No affidavit shall be read or made use of in Ante, p. 25. any matter depending in court in the jurat of which there shall be any interlineation or erasure.

141. Where any affidavit is sworn before any judge Ante, p. 25. or any commissioner by any person who from his or her signature appears to be illiterate, the judge's clerk or commissioner taking such affidavit shall certify or state in the jurat that the affidavit was read in his presence to the party making the same, and that such party seemed perfectly to understand the same, and also that the said party wrote his or her mark or signature in the presence of the judge's clerk or commissioner taking the said affidavit.

142. No affidavit of the service of process shall be Ante, p. 22. deemed sufficient if sworn before the plaintiff's own

attorney or his clerk.

See Foster v. Harvey (11 W. R. 899; July, 1863, V. C. W.).

143. Where an agent in town, or an attorney in the country, is the attorney on the record, an affidavit sworn before the attorney in the country shall not be received; and an affidavit sworn before an attorney's clerk shall not be received in cases where it would not be receivable if sworn before the attorney himself; but this rule shall not extend to affidavits to hold to bail.

D.

See also R. G. M. V. 1854, r. 2, post.

S

Ante, p. 24.

Ante, p. 26.

Ante, p. 26.

144. An affidavit sworn before a judge of any of the courts shall be received in the court to which such judge belongs, though not entitled of that court, but not in any other court unless entitled of the court in which it is to be used.

145. Where a special time is limited for filing affidavits, no affidavit filed after that time shall be made use of in court or before the Master, unless by leave of a court or a judge.

146. No rule which the court has granted upon the foundation of any affidavit shall be of any force unless such affidavit shall have been actually made before such rule was moved for, and produced in court at the time of making the motion.

147. All affidavits used before a judge out of court shall be filed with the Masters of the said courts, and be alphabetically indexed; and such affidavits shall be delivered to the Masters of the respective courts, in order to be filed, ten days next after that on which the matter is disposed of.

148. No commission for taking affidavits shall be issued to any person practising as a conveyancer, unless such person be also an attorney or solicitor of one of the courts at Westminster; and no such commission shall issue without an affidavit made by the person intended to be named therein, that he is not and does not intend to become a practising conveyancer, or that he is an attorney or solicitor duly enrolled in one of the said courts, and hath taken out his certificate for the current year.

*

RULES, SUMMONSES, AND ORDERS.

149. Every rule of court shall be dated the day of the week, month and year on which the same is drawn up, without reference to any other time or date.

When the courts are equally divided in opinion upon a rule for a new trial, and it consequently drops, neither party is entitled to any costs of the rule (Dancey v. Richardson, 3 E. & B. 722; L. J. 23, Q. B. 361). But now that an appeal lies upon rules for new trials (C. L. P. A. 1854, ss. 34, 35, ante), the courts generally avoid an equal division, by the withdrawal of the judgment of the junior judge (Bishop v. Trustees of the Bedford Charity, 1 E. & E. 697; L. J. 28, Q. B. 215); but see Levy v. Green (6 W. R. 209, Q. B. H. T. 1858).

150. Side-bar rules may be obtained on the last as well as on other days in term.

151. A rule may be enlarged, if the court think fit, without notice.

152. All enlarged rules shall be drawn up for the first day in the ensuing term, unless otherwise ordered by the court.

153. It shall not be necessary to issue more than one summons for attendance before a judge upon the same matter, and the party taking out such summons shall be entitled to an order on the return thereof, unless cause is shown to the contrary.

154. An attendance on a summons, or on an appointment before a Master, for half an hour next immediately following the return thereof, shall be deemed a sufficient attendance.

Moyse v. Dingle (L. J. 23, Q. B. 305. Bail Court).

155. All written consents upon which orders for signing judgments are obtained shall be preserved in the chambers of the judges of the respective courts.

These consents are not cognovits within the 1 & 2 Vict. c. 110, s. 9. See C. L. P. A. 1852, s. 203, and note (ante, p. 158).

156. In actions where the defendant has appeared by attorney no such order shall be made unless the consent of the defendant be given by his attorney or agent.

157. Where the defendant has not appeared or has appeared in person, no such order shall be made unless the defendant attends the judge, and gives his consent in person, or unless his written consent be attested by an attorney acting on his behalf, except in a case where the defendant is a barrister, conveyancer, special pleader or attorney.

158. Where a judge's order is made during vacation, it shall not be made a rule of court before the next term.

159. When a judge's order or order of Nisi Prius is made a rule of court, it shall be a part of the rule

Repealed.

that the costs of making the order a rule of court shall be paid by the party against whom the order is made, provided an affidavit be made and filed that the order has been served on the party, his attorney or agent, and disobeyed.

Carter v. Tonge Burial Board (5 H. & N. 523; L. J. 29, Ex. 293).

160. Rules to show cause shall be no stay of proceedings unless two days' notice of the motion shall have been served on the opposite party, except in the cases of rules for new trials, or to enter verdict or nonsuit, motion in arrest of judgment, or for judgment non obstante veredicto, to set aside award or annuity deed, or to enter a suggestion, or by the special direction of the court.

NOTICES, SERVICE OF, AND OF RULES, PLEADINGS, &c.

161. All notices required by these rules, or by the practice of the court, shall be in writing.

A notice of opposing costs under R. G. E. T. 1857, must be in writing (Woodward v. North, 5 H. & N. 790).

162. Where the residence of a defendant is unknown, rules, notices, and other proceedings may be stuck up in the office, but not without previous leave of the court or a judge.

163. It shall not be necessary to the regular service of a rule or order, that the original rule or order should be shown, unless sight thereof be demanded, except in cases of attachment.

Service of a notice or a rule, by putting it under the door of an attorney's office, is not good service without some evidence that it has duly come to hand (Burdett v. Lewis, 7 C. B. N. S. 791). Where the defendant has left the country and not since been heard of, proof that a copy of the rule has been left at his place of residence is good service (Styrling v. Lloyd, 9 L. T. N. S. 730, H. T. 1864. Bail C. cor. Shee, J.).

164. Service of pleadings, notices, summonses, orders, rules, and other proceedings, shall be made before 7 o'clock, p.m. If made after that hour the service shall be deemed as made on the following day.

For this rule has been substituted R. G. 8th May, 1856; which see, post.

165. The Masters of the several courts shall cause to be kept an alphabetical book, at their offices, to be there inspected, by any attorney or his clerk, without fee or reward, and every attorney practising in the said courts, and residing within ten miles of the General Post-office, shall enter in such book (in alphabetical order) his name and place of business, or some other proper place, within three miles of the said Post-office, where he may be served with pleadings, notices, summonses, orders, rules, and other proceedings; and as often as any such attorney shall change his place of business, or the place where he may be so served as aforesaid, he shall make the like entry thereof in the said book; and all pleadings, notices, summonses, orders, rules, and other proceedings which do not require a personal service, shall be deemed sufficiently served on such attorney if a copy thereof shall be left at the place lastly entered in such book with any person resident at or belonging to such place; and if any such attorney shall neglect to make such entry, the fixing up of any notice, or the copy of any pleadings, notice, summons, order, rule, or other proceeding, for such attorney, in the Masters' offices shall be deemed a sufficient notice.

36.

166. In all cases where a party sues or defends in Ante, pp. 4, person, he shall, upon issuing any writ of summons or other proceeding, or entering an appearance, enter in a book to be kept for that purpose at the Masters' office, an address within three miles from the General Post-office, at which all pleadings, notices, summonses, orders, rules, or other proceedings not requiring personal service shall be left; and if such address shall not be entered in the said book, or if such address shall be more than three miles from the General Postoffice, then the opposite party shall be at liberty to proceed by sticking up all pleadings, notices, summonses, orders, rules, or other proceedings in the Masters' office without the necessity of any further service.

The provisions of this rule are supplementary to those of ss. 6 and 30 of the C. L. P. A. 1852 (ante, pp. 4, 36). A plaintiff suing in person must now register a place where notices, pleadings, &c., may be left for him.

An infant, suing by his next friend, and who has recovered in an action, is entitled to the costs of an attorney employed to conduct such action for him, although the writ of summons was sued out in person, and the only notice to the defendant of an attorney being employed was the address of the next friend being