Nisi Prius (Shepperd v. Butler, 1 D. & R. 15); or by a Judge's order from one sittings to another (Claudet v. Prince, L. R. 2 Q. B. 406). It must be given where the cause has been made a remanet at the assizes (Gains v. Bilson, 4 Bing. 414), or where a new trial has been granted (Bingley v. Mallison, 3 Dougl. 402); and in the cases mentioned above, though it is not necessary to give notice, yet will be the more prudent course to give it, and where it is intended to have the case tried by a special jury an embarrassment may arise if notice be not given.

notice.

The notice should be in writing, but no particular form is necessary to con- Form of stitute a valid notice (Ginger v. Pycroft, 17 L. J. Q. B. 182), and where a notice of trial was served on the 25th of May, for the trial of the cause beforè the Judge presiding in the Consolidated Nisi Prius Court for Thursday the 7th day of May, it was held that inasmuch as the defendant must have known that the 7th June was the day actually intended, the notice being correct in every other respect, it was sufficient; and a motion to set it aside was refused with costs (Graham v. Brennan, 11 Ir. C. L. R. Ap. 17); as to the form of notice of inquiry before the Master, Sheriff, or a Judge, see the 60th and 61st G. Os. 1854.

Form of notice of inquiry.

Length of

The Statute requires, ten days notice of trial to be given. In reckoning the ten days, Sunday is to be excluded, but all the other holidays are to be notice. included (s. 232, post, Kennan v. Garde, 3 Ir. C. L. R. 20), and the time is to be reckoned exclusive of the day of service, but inclusive of the last of the days. When the trial is had during term, notice may be served for any of the days therein, but when the trial is had at the aftersittings, the notice must be served for the first day of the aftersittings, and so, also when the trial is had at the Assizes; and where the last day for serving notice of trial for the Hilary aftersittings was the 20th January, and on the 23rd January a notice was posted that the Nisi Prius sittings of the Court would not commence until February 6th, a notice of trial for the ensuing aftersittings, served on the 23rd January, was held to be irregular, and was set aside (Du Moulin v. Druitt, 5 Ir. Jur. N. S. 168), with which compare Cox v. Kernan, 5 Ir. Jur. O. S. 233. Where indeed the defendant has been guilty of a breach of good faith, or where the Court think it for the advancement of justice, they may compel the defendant to accept short notice of trial, or even make an order deeming a notice of trial irregularly served for the Consolidated Court a good notice of trial for the aftersittings (Waldron v. Parrott, 8 Ir. C. L. R. App. 50).

The notice must be served upon the attorney in the cause, or on the defend- On whom to ant if he has appeared in person, and it would follow from s. 39 of the be served. Act that service at the residence, &c. indorsed upon the defence will be sufficient. It must be served before nine o'clock at night, 128th G. O. 1854. And where no proceedings have been taken in the action for a year, and a day, the plaintiff must serve a rule for liberty to proceed pursuant to the 178th G. O., before serving notice of trial; and see M'Mahon v. Ellis, 12 Ir. C. L. R. 437, as to what is a proceeding in the cause. Where in an action for unliquidated damages there are several defendants and some of them have allowed judgment to be marked by default, and others Where have taken defence, notice must be served upon the defendants so suffering several dejudgment by default to assess damages against them at the trial in respect of the judgment by default In an action for a liquidated demand, however, when a final judgment by default has been marked against some of the defendants, it is unnecessary to serve them with notice of any further

fendants.

How detect in notice

taken advan

tage of

Waiving de

fect.

Pending appeal."

Short notice of trial.

Notice of countermand

proceedings against defendants who have pleaded (Thompson v. Shanley, 4 Ir. C. L. R. 617). And where the defendants are sued as partners, service of the notice of trial on the defendants who take defence will be deemed good service upon the others (Seymour v. Donnelly, 2 Ir. Jur. N. S. 186).

There seems to be no objection to a plaintiff withdrawing a bad or defective notice of trial and giving a fresh valid one, if there be time for that purpose (Fell v. Tyne, 5 Dowl. 246; Ranger v. Bligh, ib. 235). And if the first notice be void, a new notice may be served without countermanding the first (Fell v. Tyne, ubi supra).

The Judge at the trial will not in general refuse to hear a cause on an objection that due notice of trial has not been given, that being a ground for an application to set aside the verdict (Byrne v. Hogan, Arm. Mac. & Og. 170); and a defendant by appearing and defending the action at the trial thereby waives any irregularity in or even the want of notice (Doe v. Jepson, 3 B. & Ad. 402; Younge v. Fisher, 4 M. & G. 814). An irregularity in the notice will be also waived by the defendant obtaining after service of the notice of trial an order for a special jury (Beresford v. Geddes, L. R. 2 C. P. 285). In Waldron v. Parrott, 8 Ir. C. L. R. App. 50, a plaintiff served notice of trial for the Consolidated Nisi Prius Court, and the defendant made no objection to the notice, but appeared at the trial, and objected that the Judge had no jurisdiction to try the case in the Consolidated Court, and the Court under the circumstances ordered the defendant to accept short notice of trial for the ensuing aftersittings. When the notice of trial served is irregular, although the Court may on the application of the defendant set aside the notice, it may on the other hand decline to interfere and allow the plaintiff to go on at his own peril, 1 Ch. Ar. Pr. 12th Ed. p. 318.

Where an appeal was pending to the Court of Error by the defendant from an order of the full Court which had set aside a verdict had for the defendant and awarded a venire de novo, an order was made by a Judge in Chamber restraining the plaintiff from proceeding to act upon a notice of trial which he had served for the ensuing assizes (Whalley v. Masserene, 7 Ir. Jur. N. S. 323), and see further S. C. sub nom. Carlisle v. Whaley, L. R. 2 H. L. 391, 407. In Callan v. Marum, Q. B. H. T. 1871, the Court of Queen's Bench under similar circumstances declined to interfere.

(p) The order of the Judge or Court imposing the terms of taking short notice of trial generally adds the term "if necessary." The defendant in such a case is not bound to accept short notice unless it becomes necessary; and it is not so if the plaintiff is guilty of unnecessary delay (Drake v. Pickford, 15 M. & W. 607; Dignan v. Ibbotson, 3 M. & W. 431); the term "if necessary," means if such short notice shall be rendered necessary in consequence of the grace given (Woolley v. Aldratt, 17 L. T. N. S. 120). In Cox v. Kiernan, 5 Ir. Jur. O. S. 233, the defendant had been ordered by an order of the 28th January to accept short notice of trial for the Nisi Prius sittings. The plaintiff served notice of trial on the 3rd February, the defendant refused to appear at the trial, on the grounds that he had not got sufficient notice of trial, and a verdict was given for the plaintiff; and it was held on a motion for a new trial that this notice was sufficient, and the verdict for the plaintiff was upheld.

104. A countermand of notice of trial or inquiry may be 15 & 16 Vict. given four days before the time mentioned in the notice, unless short notice of trial or inquiry has been given, and

c. 76, s. $8.

then two days before the time mentioned in the notice of trial or inquiry, unless otherwise ordered by the Court or a Judge, or by consent (q).

notice.

(q) Where a plaintiff seeks to countermand notice of trial or inquiry, the Counternotice should be given the required number of days before the first day of mand of the sittings or assizes (Cooper v. Whitmarsh, 4 M. & W. 73). It must be given to the defendant's attorney where he defends by one, and in such a case notice to the defendant himself will not be sufficient (Margetson v. Rush, 3 Dowl. 388). When a cause has been made a remanet, notice of trial cannot in general be countermanded (Tempany v. Rigby, 10 Ex. 476); but where the cause is made a remanet at the request of the defendant, notice of trial may be countermanded (Sally v. Noble, 1 H. & C. 809).

termand late.

Even in cases where the plaintiff is late for serving notice of countermand, Where counhe should, in cases where he does not intend to proceed to trial, serve the defendant with notice of his intention not to proceed, in order to prevent further costs being incurred; and if the defendant after service of such notice incurs any further expense, he will not be entitled to the costs of same (Tottenham v. M'Guiney, 9 Ir. Jur. N. S. 287).1

After the jury has been sworn, the plaintiff cannot, except by consent, withdraw the record; and unless he go on he must be nonsuited (Swift v. Swift, 3 Ir. C. L. R. 218, Lee v. Butler, Arm. Mac. & Og. 93).

105. A rule for costs of the day for not proceeding to trial or inquiry pursuant to notice, or not countermanding in sufficient time, may be drawn up on affidavit, without motion (r), at any time within one month (s) after the day of trial or inquiry fixed by the notice of trial or inquiry, and if such rule be not entered within said period, such costs shall be costs in the cause (t); provided however that such rule shall, so long as it remains in force, be an answer to any application in respect of any default in proceeding to trial.

Costs of the vict. c. 76, s.

day, 15 & 16

99, Reg.

39.

of the day.

(r) When the plaintiff fails to proceed to trial pursuant to notice, and has Rule for costs not countermanded the notice of trial in proper time, the defendant may enter as of course a rule pursuant to this section, and in case the plaintiff has any good excuse for not going to trial, his only course is to move the Court to discharge the rule.

What costs

defendant entitled to.

When the defendant has entered a rule under the above section, he will be entitled to such costs as he has incurred by reason of the plaintiff not having proceeded to trial, and such costs will be the same as the costs upon a withdrawal of the record (Walker v. Lane, 3 Dowl. 504). The costs of the day in such cases include the costs of issuing and serving subpoenas, viaticums and expenses of witnesses, the attendance fee of the attorney, and refreshing fees to counsel. Where a cause has been made a remanet, the costs to be paid will be the costs of the day of the second sittings, and will not include the costs of the first sittings (Waters v. Weatherby, 3 Dowl. 328; Brett v. Stone, 1 D. & L. 140). Where notice of trial was served for the Where notice Consolidated Nisi Prius Court in a case which did not come within the class irregular.

Where record has been lodged.

Grounds of excuse.

Rule operates as a stay.

enumerated in sect. 237, post, and in consequence of the want of jurisdiction the case remained untried, it was held, nothwithstanding the want of jurisdiction, that the defendant was entitled to the costs of the day (Murphy v. M.Cay, 6 Ir. Jur. O. S. 312).

In case the plaintiff serves a notice of trial which he does not withdraw, and lodges the record, but afterwards makes default in going to trial, the proper course for the defendant to adopt is to attend at the trial, have the jury sworn, and obtain a nonsuit, which will have the effect of terminating the action; and if the defendant, instead of adopting this course, does not appear at the trial, and is in the same default as the plaintiff, he will not be entitled to the costs of the day. Thus, where both parties were absent when the case was called on, the defendant was held not to be entitled to the costs (Morgan v. Fernyhough, 11 Ex. 205; Warne v. Hill, 7 C. B. N. S. 726). In the latter case it was stated (p. 730) that the defendant, when the plaintiff does not appear, may adopt one of two courses: he may either have the jury sworn, and claim a nonsuit, or, without having the jury sworn, he may apply to have the cause struck out, and in either case he will be entitled to the costs of the day; however, in Smith v. Marshall, 33 L. J. Q. B. 332, it was laid down that, in order to secure the costs of the day, the defendant must have the jury sworn, and claim a nonsuit; and if he do not, he is not entitled to them; and see further Leech v. Gibson, 10 W. R. 354. When the plaintiff, after having given due notice of trial, does not lodge the record, or withdraws it without due notice of countermand, the defendant is of course entitled to the costs of the day. In Sleeman v. Copper Miners of England, 5 D. & L. 451, the defendants refused to consent to allow the record to be amended, which was then withdrawn, and the Court refused them the costs of the day; with which case compare Cook v. Smith, 1 Dowl. N. S. 861; Skinner v. London and Brighton Railway Co., 4 Ex. 885. As to the costs of the day, when the plaintiff is prevented from trying by an accident happening to a material witness, see Ogle v. Moffatt, Barnes, 133, Pope v. Fleming, 5 Ex. 249. In Pell v. Lennell, L. R. 3 C. P. 441, it was held that where a plaintiff has a reasonable excuse for not proceeding to trial pursuant to notice, and has been guilty of no default, the defendant is not entitled to the costs of the day. In that case an action had been brought against A. & B., and notice of trial was served for the Bristol Assizes, which commenced on the 13th of August. On the roth, Saturday, the plaintiff's attorney became aware that B. was dead. No suggestion was entered on the record, and on the 12th the plaintiff gave a notice by telegram that he did not mean to try at those assizes. Notwithstanding this notice, A. attended with his witnesses at Bristol. The plaintiff did not appear; and it was held that the plaintiff had not been guilty of such default as to entitle A. to the costs of the day. If the jury be improperly tampered with by the defendant, or be prejudiced, the plaintiff will not be liable to the costs of the day in case he withdraws the record (Atkinson v. Mills, 9 Ir. Jur. N. S. 250; and see Mullins v. Anon., 5 Taunt. 88).

In England the rule is not a stay of proceedings, nor will the Court, unless under peculiar circumstances, make it a part of the rule that the payment of the costs shall be a condition precedent to ulterior proceedings: Ch. Ar. Pr., 12th Ed. p. 1495. In this country, however, the rule which the defendant is entitled to enter up pursuant to the above sections provides that the proceedings shall be stayed until the costs of the day are paid (Murphy v. M'Cay, 6 Ir. Jur. O. S. 312). When a rule for the costs of the day has been entered the defendant cannot take proceedings under the 106th sect. without dis

charging the rule (Raleigh v. Raleigh, 5 Ir. L. R. 182; Dawson v. Loughnan, Bl. D. & O. 46; M Cammon v. Neeson, 2 Huds. & Br. 153); and cf. Anderson v. Wa'sh, Ir. R. 3 C. L. 97; Fielden v. Donagh, 8 Ir. C. L. R. Ap. 45). As to what acts on the part of the defendant will amount to a waiver of the benefit of the rule, in so far as it stays the proceedings, see Deering v. Palmer, 6 Ir. L. R. 209, where it was held that the circumstances of the defendant having before the costs were taxed and certified applied for a special jury, and the service of a notice for the admission of documents at the trial, constituted a waiver by him of the benefit of the rule. The costs to which a defendant is entitled by reason of the plaintiff's default in not going to trial, will not pending the cause be made payable out of money lodged by the plaintiff in Court in lieu of security for costs (Tupper v. Dawson, 7 Ir. Jur. N. S. 325).

(s) Vacation is to be included in the computation of time within which Computation the rule is to be entered; and when that time has elapsed, the Court has no of time. authority to allow the rule to be entered (M'Kinney v. Reynolds, 6 Ir. C.

L. R. 133).

(t) Where the plaintiff withdraws the record, and the defendant omits Where rule within a month to enter a rule for the costs of the day, and the plaintiff ulti- not entered. mately succeeds in obtaining a verdict, he should not as a matter of course be allowed in the Taxing Office the costs of withdrawing his own record, although in an extreme case it would be competent to the Court to make the defendant pay them (Atkinson v. Mills, 9 Ir. Jur. N. S. 250).

With respect to default in not proceeding to trial (u): 106. The plaintiff shall proceed to trial within three terms (e) from that in which, or the vacation of which, the defence or other subsequent pleading is filed; and in default thereof (w) the defendant (x) may enter a rule that the plaintiff do proceed to trial at the assizes or sittings next after the expiration of twenty days from the service of such rule (y), and that in default the defendant shall be dismissed with his costs of the suit (z); and if the plaintiff neglects to proceed to trial in pursuance thereof (a), the defendant, on filing an affidavit of the service of such rule, and that the plaintiff has failed to proceed to trial in pursuance thereof, may enter a peremptory order for the payment of his costs of the suit (aa), which order shall be in lieu and shall have the effect of a judgment as in case of a nonsuit; and the defendant on producing such order shall have the pleadings in the cause removed into the office of the Master of the Court for the purpose of having execution thereon, and shall have execution accordingly; provided, however, that the Court or a Judge shall have power to extend the time for proceeding to trial, with or without terms (b).

Default in

going to trial.

Order for proceeding to Vict. c. 76, s.

costs for not

trial, 15 & 16

102.

(u) The plaintiff is bound under the above section to proceed to trial Proceeding within three terms from that in which, or the vacation of which, the defence to trial