New Trial.

128. An application for a new trial, or to set aside proceedings, may be made and determined on the day of hearing, if both parties be present, or such application may be made at the first Court holden next after the expiration of twelve clear days from such day of hearing; provided the intended 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 or abode or place of business, a notice in writing, signed by himself, his attorney or agent, 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 suit 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 otherwise order; 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; provided that this rule shall not apply to cases falling within the provision of sect. 80 of 9 & 10 Vict. c. 95.

129. The Judge may, in his discretion, make it a condition of granting a new trial, that it shall take place before a jury, although the former trial did not take place before a jury.

Interpleader.

130. Where any claim is made to or in respect of any goods or chattels taken in execution under the process of any County 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 herein before directed for a summons to appear to a plaint, and the case 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, a particular 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 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.

131. Interpleader summonses shall be issued by the Registrar, on the application of the bailiff, without leave of the Court.

132. Interpleader summonses shall be issued from the Court of the district in which the levy was made, and the execution creditor and claimant shall be summoned to such Court.

133. 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 against the claimant for the sum so retained.

Security.

134. 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 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, that it must then be made.

135. 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 affidavit.

136. The bond shall be executed in the presence of the Judge or Registrar, or some other of the persons mentioned in sect. 58 of 19 & 20 Vict. c. 108: provided always, that if it be executed in the presence of the Judge or Registrar it shall not be necessary for it to be attested.

137. Where a party makes a deposit of money in lieu of giving a bond he shall forthwith give notice to the opposite party, by post or otherwise, of such deposit having been made.

138. In all cases where the security is by bond the bond shall be deposited with the Registrar until the cause be finally disposed of.

Appeal.

139. Any party dissatisfied with the determination or direction of the Court in point of law, or upon the admission or rejection of evidence, may, before the rising of the Court on the day on which judgment was pronounced, deliver to the Registrar a statement in writing, signed by him, his counsel or attorney, containing the grounds of his dissatisfaction; and in the event of no such statement being delivered, the successful party may proceed on the judgment unless the Judge shall otherwise order; but the Judge may direct proceedings to be taken on the judgment notwithstanding such statement has been delivered: provided that the party so dissatisfied may appeal on grounds different from those contained in such statement, and although he shall not have delivered any such statement.

140. The ten days within which notice of appeal may be given, shall be reckoned, exclusive of the day of trial.

141. The notice of appeal shall be in writing and shall state the grounds on which the party appeals, and shall be signed by the appel

lant, his attorney or agent, and such notice shall be sent to the Registrar as well as to the successful party, by post or otherwise.

142. If, before the notice of appeal is served upon the Registrar, execution shall have issued and the amount of the judgment and costs of execution shall have been paid into the hands of the bailiff, or levied and not paid over to the successful party, the same shall remain in Court to abide the order of the Court.

143. If, before an appealing party shall have given the required security, execution shall have issued, the Registrar shall, upon the appealing party's giving security, forthwith send notice thereof by post or otherwise to the bailiff; and proceedings on such execution shall forthwith be stayed.

144. At the time of giving security, the appellant shall deliver to the Registrar a statement in writing, showing to which of the Courts of Common Law at Westminster he proposes to appeal.

145. All cases on appeal shall, unless the Judge shall otherwise order, be presented to him for signature, at the Court holden next after the expiration of twelve clear days from the day on which judgment was pronounced, and shall then be signed by the Judge and be sealed with the seal of the Court; and when signed and sealed, one copy thereof shall be deposited with the Registrar, and another sent by post or otherwise, by the appellant, to the successful party, within three clear days next after the time of signing and sealing the same; and if the appellant do not comply with this rule, the successful party may proceed on the judgment, unless the Judge shall otherwise order.

146. The appellant shall, within three clear days next after the case is signed and sealed, transmit two copies thereof, by post or otherwise, in conformity with the provisions of sect. 15 of 13 & 14 Vict. c. 61; and notice of such transmission shall forthwith be served by the appellant on the successful party, by post or otherwise; in default whereof the successful party may proceed on the judgment, and shall, on application to the Court, be entitled to such costs as he shall have incurred in consequence of the appellant's proceedings: provided that instead of proceeding on such judgment, the respondent, if he think fit, may, within twenty-eight clear days from the signing of the case, transmit it in the manner prescribed, and give the like notice to the appellant of such transmission.

147. If after the case has been transmitted, the appellant do not prosecute his appeal with due diligence, according to the practice of the Court of Appeal, the successful party may apply to the Judge for leave to proceed on the judgment, and leave for that purpose may be granted accordingly, if the Judge shall think fit; and the successful party shall also be entitled to such costs as he shall have incurred in consequence of the appellant's proceedings; which costs shall be added to the judgment.

148. 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 County Court, and within fortyeight hours from the time of such deposit send a notice thereof to the other party, by post or otherwise.

149. A new trial, in pursuance of the order of the Court of Appeal, shall be entered for trial at the County Court which shall be holden next after twelve clear days from the time when such order or office

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copy thereof shall have been deposited as aforesaid, unless the parties agree that it shall take place sooner, or the Judge otherwise order, and it shall be conducted in the same manner as any new trial granted by the County Court itself.

150. If the order of the Court of Appeal be, that judgment shall be entered for either party, 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 County Court.

Abatement of Action.

(See 19 & 20 Vict. c. 108, s. 62.)

151. Where one or more of several plaintiffs or defendants shall die before judgment, the suit shall not abate, if the cause of action survive to or against the surviving parties respectively.

152. Where one or more of several plaintiffs or defendants shall die after judgment, proceedings thereon may be taken by the survivors or survivor, or against the survivors or survivor, without leave of the Court.

153. Where a married woman is sued as a feme 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.

Proceedings in the nature of a Scire Facias.

154. Execution on a judgment shall not issue by or against any person not a party to the suit, without a plaint and summons upon the judgment, the proceedings in which shall be the same as in ordinary cases.

155. 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.

156. In all proceedings in the nature of a scire facias, a jury may be summoned in the same manner and under the like restrictions, as are provided by sects. 70, 71, 72 and 73 of 9 & 10 Vict. c. 95.

Proceedings by and against Executors and Administrators.

157. 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.

158. Where an executor or administrator, plaintiff or defendant, shall not appear on the day of hearing, the provisions of sects. 79 and 80 of 9 & 10 Vict. c. 95, and of sect. 10 of 13 & 14 Vict. c. 61, shall apply respectively, subject to the rules applicable to executors or administrators suing or sued.

159. A party suing an executor or administrator may charge in the summons, that the defendant has had assets, and has wasted them.

160. 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 testatoris si, &c, 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.

161. 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, &c., et si non, de bonis propriis.

162. 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, &c, et si non, as to the costs, de bonis propriis.

163. 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, &c., et si non, de bonis propriis; and as to the whole or residue of the demand, judgment of assets, quando acciderint; and the plaintiff shall pay the defendant's costs of proving the administration of assets.

164. 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, &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 acciderint.

165. Where such defendant admits his representative character and the plaintiff's demand, but alleges a total or partial administration of the assets, and proves the administration alleged, the judgment shall be for assets, quando acciderint, and the plaintiff shall pay the defendant's costs of proving the administration of assets.

166. Where such defendant admits his representative character and the plaintiff's demand, but alleges a total or partial administration of the assets, but does not prove the administration alleged, and has not established any other ground of defence, the judgment 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, de bonis testatoris, si, &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 acciderint.

167. Where judgment has been given against an executor or administrator, that the amount be levied upon assets of the deceased, quando acciderint, the plaintiff or his personal representative may issue a summons in the form set forth in the schedule, 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, &c., et si non, as to the costs, be bonis propriis. Provided, that it shall be competent for the party applying to