Defendant's remedies.

Course to be adopted by plaintiff.

How time computed.

In case of

or other subsequent pleading is filed, unless the time for so proceeding be extended by the Court or a Judge. When the prescribed period has elapsed, and no notice of trial has been served, there are two courses open to the defendant. He may either proceed to rule the plaintiff in the manner pointed out above, or he may take down the cause for trial by proviso. At Common Law the only right of the defendant was to take down the cause for trial by proviso (see post, p. 121); but by the 28th Geo. 3, c. 31, s. 2 (repealed by the present Act), the further right was given to the defendant of obtaining a judgment as in case of a nonsuit against a plaintiff who was guilty of neglect in not bringing on an issue to be tried, and by the above section a similar right is conferred upon him. The effect of a rule entered under the above section is the same as that of a judgment of nonsuit, and will not, therefore, be an answer to a fresh action, while, on the other hand, a verdict upon a trial by proviso is conclusive between the parties. A trial by proviso is, however, seldom had recourse to except in cases where the defendant is particularly anxious that the cause should be finally disposed of.

When the defendant has ruled the plaintiff under the above section to proceed to trial, the plaintiff, if he has any grounds upon which to apply to the Court to rescind or vary the rule, should apply by motion. Under the old practice, if the plaintiff had once proceeded to trial, a judgment as in case of a nonsuit could not be entered up against him, notwithstanding a subsequent default, and in such cases it would appear that no rule can be entered up under the present statute either, infra, note (w). Again, the plaintiff may show in another class of cases that the rule has been prematurely entered or that under the circumstances of the case the Court should not allow it to stand (infra, note (z)); and in a third class of cases, although the rule has been regularly entered up, yet the plaintiff may have just grounds to apply for an extension of the time for going to trial, (infra, note (b)). When the plaintiff does not intend to show cause against the rule, or to apply for an extension of the time, he should serve notice of trial in the usual manner. If after being ruled, he fails in going to trial, there are some cases (note (a), infra), in which he may notwithstanding apply to the Court to discharge the peremptory order for payment of costs which the defendant is authorized to enter up under the above section.

() When the defendant has obtained an order staying the proceedings in the cause, the time during which the proceedings are so stayed is not to be included in the computation of the period above mentioned (Anderson v. Walsh, Ir. R. 3 C. L. 97; Fielden v. Donagh, 8 Ir. C. L. R. Ap. 45); and it is in such a case further necessary that three consecutive terms should elapse (Anderson v. Walsh, ubi supra); and see further, note (z), infra.

It was held under the former Statute, that where there was an issue both in fact and in law, time did not commence to run until the issue in law was disposed of (Crisp v. Atwell, 1 L., M., & P. 454).

As to the means of compelling the plaintiff or his representative to proceed death of par- with the action in case of the death of one of the parties, see sect. 93 of the Common Law Procedure Act, 1856.

ties.

Where cause

to trial.

(w) Under the old practice, when a plaintiff had once brought on the once trought issue to be tried, and the trial had proved abortive, or had not proceeded from causes other than his neglect, a judgment as in case of a nonsuit could not be entered against him, although he failed to proceed further with the case. Thus, if the plaintiff in a country case had taken the cause down for trial, and it had been made a remanet, the defendant could not have had a judgment

4

under the Statute (Brown v. Rudd, 1 Dowl. 371; Mewburn v. Langley, 3 T. R. 1; Wright v. Hodgens, 1 Ir. L. R. 268). The defendant's only remedy in such a case was to take the case to trial by proviso (Williams v. Stewart, Law Rec. N. S. 171). It was otherwise, however, in a town cause (Gadd v. Bennett, 2 B. & Ald. 709; Ladbroke v. Williams, 3 D. & L. 368; Collier v. Jones, 1 Huds. & Br. 321); but see Wright v. Hodgens, 1 Ir. L. R. 268. Where, however, the plaintiff withdrew the record, the defendant might have obtained a judgment against him under the Statute (Graydon v. Reardon, 1 Ir. L. R. 355; Gillman v. Connor, 1 Jebb & Sym. 673), unless the withdrawal was at the instance of the defendant (Clarke v. Callaghan, 1 Ir. L. R. 345; Anon., 2 Ir. L. R. 167). And where the plaintiff took the cause down for trial, and was nonsuited, and the nonsuit was afterwards set aside (King v. Pippett, 1 T. R. 492; Ashley v. Flaxman, 2 Dowl. 697), or had a verdict, and a new trial was afterwards granted (Ivers v. Browne, 5 Law Rec. N. S. 32; Porzelius v. Maddocks, 1 H. Bl. 101), it was held that the defendant was not entitled to a judgment as in case of a nonsuit, inasmuch as after the plaintiff has once tried the cause he could not be compelled under the Statute to proceed to trial again. And it would appear that, in cases where the defendant was not entitled to judgment as in case of a nonsuit before the present Act, he cannot now compel the plaintiff to proceed to trial under the above section: Ch. Ar. Pr., 12th Ed. p. 1500; Day's Common Law Procedure Act, 3rd ed., p. 94.

ants.

(x) One of several defendants may enter a rule under this section, and Where sevethe rule will operate for the benefit of all; and this is so even in cases ral defendwhere judgment by default has been marked against the other defendants (Henry v. Flannery, 2 Ir. C. L. R. 650; Jones v. Gibson, 5 B. & C. 768; Powerscourt v. Brislin, 4 Ir. L. R. 283).

(y) The twenty days may include the ten days which the plaintiff will Entering the require for his notice of trial (Judkins v. Atherton, 3 E. & B. 987); and the rule. plaintiff should therefore take care to serve his notice of trial in proper time, without waiting for the expiration of the twenty days.

The rule may be obtained as of course in the office, without any application to the Court (Irwin v. Landon, 6 Ir. Jur. O. S. 315). When more than a year and a day has elapsed since the filing of the defence without any proceedings having been taken, and no compromise is depending, the defendant, before entering the rule, must enter a rule for liberty to proceed pursuant to the 178th General Order, 1854 (Marsh v. Williams, 7 Ir. C. L. R. 99; Gardiner v. Gardiner, 14 Ir. C. L. R. Ap. 31); and see Rutledge v. Rutledge, 3 Ir. L. R. 102; Metcalfe v. Hetherington, 3 H. & N. 755. Where after the defence had been filed, an order of reference had been obtained under sect. 6 of the Common Law Procedure Act, 1856, under which no proceedings had been taken, and the affidavit on which the rule was obtained made no mention of the order, the rule was set aside with costs (Oliver v. Davies, I Ir. L. T. 83).

trial.

(2) When the rule in question has been entered by a defendant, the plain- Excuse for tiff may apply to the Court to discharge the rule, if he has any just grounds not going to of excuse for not going to trial, or if the rule has been prematurely entered, or he may apply to have the time for proceeding to trial extended, as to which see post, note (b).

It will be a good ground of excuse for not going to trial, that an order has been obtained by the defendant, and is in force, staying the proceedings. Thus the defendant cannot rule the plaintiff during the continuance of an

Bankruptcy

order staying the proceedings until security for costs be given (Anderson v. Walsh, Ir. R. 3 C. L. 97; Fielden v. Donagh, 8 Ir. C. L. R. Ap. 45); or until the costs of not proceeding to trial pursuant to notice be paid (Read v. Shaw, 1 Ir. L. R. 269), or until the costs of withdrawing notice of trial be paid (Mullen v. Carroll, 1 Leg. Rep. 243; M'Cammon v. Neeson, 2 Huds. & Br. 153). So, also, an order staying proceedings until the costs of a former action are paid (Uniacke v. Uniacke, Batty, 333), or until further particulars are given (Wright v. Graves, Batty, 331), will be a good answer to a rule under the above section. In all the cases mentioned the defendant must first vacate the order in question before attempting to proceed; and the time during which the order was in force must not only be excluded from the computation of the period above mentioned, but three consecutive terms must elapse during which the plaintiff is in default (Anderson v. Walsh, M'Cummon v. Neeson, ubi supra).

Again, where an action is brought upon a bill of exchange or other negotiable instrument, it is a sufficient answer to a rule under this section to show that the amount has been paid by one of the other parties to the instrument (White v. Doolun, 3 Ir. L. R. 500; Anon., 6 Law Rec. 350; with which compare Heron v. M'Aleer, Ir. R. 2 C. L. 490). And if in such a case the defendant has a good defence to the action, the proper course in order to obtain his costs is to bring the case to trial by proviso (Manning v. Anon., 10 Ir. L. R. 484).

Where the plaintiff became a bankrupt or insolvent after issue joined, it or insolvency was held under the repealed Act, that the defendant was not entitled to a of parties. judgment as in case of a nonsuit (Jones v. Newbury, Bl., D., & O. 147; Fitton v. Evans, 6 Ir. L. R. 466; Cross v. Robertson, 7 M. & G. 640); and see sect. 162, post. And where the defendant, after action brought, became bankrupt or insolvent, or got into insolvent circumstances, the Court would, in case an application was made to enter up a judgment as in case of a nonsuit, direct a stet processus to be entered; and if the defendant refused to consent to join in so doing, would either refuse the application with costs, or direct the judgment to be entered up without costs (Crawford v. Crowther, 8 Ir. L. R. 99; Doe v. Mullins, 9 Ir. L. R. 39; O' Connor v. Evans, 7 Ir. L. R. 210); and where the defendant had informed the plaintiff, after the commencement of the action that he intended to take the benefit of the Insolvent Act, the Court set aside the rule ( Truscott v. Latour, 9 Ex. 420); and so, also, where the defendant had left the country after issue joined, leaving no property, and was a defaulter (Rice v. M Mahon, 2 Leg. Rep. 135).

Where the sum sought to be recovered was only £5, and the plaintiff swore he had a good cause of action, the Court refused to allow a judgment of nonsuit to be entered up (Anon., 2 Ir. L. R. 263; M Cormick v. Noblett, 2 Jebb & Sym. 161).

Where a motion was made for a judgment as in case of a nonsuit after notice of trial had been served and withdrawn, and it appeared that the record was withdrawn at the instance of the defendant, the Court refused the application (Clarke v. Callaghan, 1 Ir. L. R. 354); and see ante, note (w), as to the effect of withdrawing notice of trial, or of the cause being made a remanet, or the trial proving abortive.

So, also, where it appears that the defendant in any way consents to the delay, as by negotiating for a settlement or a reference (Hansby v. Evans, 4 M. & W. 565), or by having applied for a postponement (Rendell v. Bailey, 2 Dowl. 113), he will not be entitled to a rule under this section. And

where, after an action had been brought for a malicious arrest, the defendant instituted criminal proceedings against the plaintiff on the charge for which the arrest had been made, the Court discharged a rule for judgment as in case of a nonsuit (Gray v. Hutchins, 3 Dowl. 414).

When a plaintiff institutes proceedings at Law and Equity for the recovery of the same demand, and elects to proceed in Equity, the defendant may rule him under the above section (Mortimore v. Soares, 1 E. & E. 399; Hollier v. Eyre, Bl., D. & O. 108).

remptory order.

the order.

(a) When the defendant has entered a rule that the plaintiff do proceed to trial, the plaintiff should bring the cause on for trial at the sittings or the assizes, as the case may be, next after the expiration of the notice, and should for that purpose serve notice of trial in the usual way (Sulsh v. Cranbrook, Entering peI Dowl. 148). If the plaintiff fails to comply with the rule, and has not obtained an extension of the time for proceeding, the defendant may enter a peremptory order for the payment of the costs, and the order so entered will Rescinding not be rescinded unless the plaintiff accounts satisfactorily for not having proceeded to trial. In Dowell v. Hussey, 6 Ir. C. L. R. 230, it was laid down that nothing but a fatality can prevent the strict operation of the rule, inasmuch as the defendant, when he acts regularly, is entitled to its protection; and accordingly, in that case, the Court refused to rescind the order, the only ground of excuse shown being the laches of the clerk of the attorney. In Colclough v. Colclough, 14 Ir. C. L. R. 523, it was, however, held by the Court of Exchequer (Hughes B., dissentiente) that the Court is not precluded from looking at the circumstances under which a plaintiff withdraws a record at the assizes for which he has served notice of trial pursuant to the first of the above rules. In that case the plaintiff had withdrawn the record after the commencement of the assizes, upon discovering that a witness who was believed to have had in her possession important documentary evidence, for the production of which she had been served with a subpœna duces tecum, had not the evidence in question in her possession, and did not know of it; and the Court under the circumstances set aside the peremptory order for payment of costs, upon the terms of the plaintiff paying the costs of the nonsuit. So, also, if the plaintiff's failure to go to trial at the sittings or assizes in question has not arisen from any default or neglect of his own, as for instance, if it arises from the illness or act of the Judge (Grayden v. Reardon, 1 Ir. L. R. 355), the order will be rescinded. The plaintiff should, however, in such a case, be prompt in applying to the Court to rescind the peremptory order entered by the defendant, and should, if possible, apply to the Court to extend the time before the order in question is entered (Colclough v. Colclough, ubi supra; Ward v. Turner, 5 Dowl. 22). Where, however, the trial has not taken place in consequence of neglect on the part of the plaintiff or his attorney, the rule will not be rescinded (Petrie v. Cullen, 2 D. & L. 604; Dowell v. Hussey, 6 Ir. C. L. R. 230). In Powerscourt v. Brislin, 4 Ir. L. R. 283, the plaintiff having failed to go to trial in consequence of the absence of his counsel, the Court refused a motion for judgment as in case of a nonsuit. And see, further, note (b), infra, as to the grounds upon which the Court will extend the time for going to trial, and the terms which will be imposed upon the plaintiff.

(aa) Where the defendant pays money into Court, he is entitled in case he Costs. obtains judgment, as in case of a nonsuit to the general costs of the cause (M'Lean v. Phillips, 18 L. J. C. P. 248).

(b) In addition to the power above given to the Court or a Judge to ex

tend the time for proceeding to trial, the Judge at the trial may under sect. 22 of the Common Law Procedure Act, 1856, adjourn the trial for such time as he may think fit.

The plaintiff may apply to the Court to extend the time for proceeding to trial immediately after the first of the above rules has been entered, the better course being to apply at once (Farthing v. Castles, 22 L. J. Q. B. 167). The Court may, however, make an order extending the time after the lapse of the twenty days (Nosotti v. Hudson, L. R. 3 C. P. 293, overruling Horner v. Spencer, 1 F. & F. 412). In order to induce the Court to extend the time, the plaintiff must satisfy the Court that his inability to proceed to trial arises, not from any wish on his part to delay the trial of the cause unnecessarily, or for the purpose of vexation, or from any other improper motive, but from necessity, or from some other just and reasonable cause. Accordingly, where a commission had been issued to examine witnesses in New South Wales, in support of the plaintiff's case, the Court extended the time for proceeding to trial to twelve months (Druitt v. Druitt, 2 Ir. Jur. N. S. 420). So, also, the absence of a material witness (Montford v. Bond, 2 Dowl. 403), or the non-production by such witness of documents which were believed to be in his possession (Colclough v. Colclough, 14 Ir. C. L. R. 523), or the absence of documentary evidence (Greenhill v. Mitchell, 6 Taunt. 150), may be held by the Court in the exercise of its discretion to be a sufficient excuse; and in a case where all that was sworn was, that "unexpected difficulties had arisen in procuring the necessary evidence to entitle the plaintiff to a verdict in his favour," the excuse was held to be sufficient (Doe v. Blois, 8 Dowl. 18). It has also been held to be a sufficient excuse that another action was pending, and about to be argued, which would decide the question in dispute (Duke v. Tucker, 5 Railway Cases, 116). And where a bill had been filed against a banking company, and a receiver appointed over all their property, with a reference to the Master to report on the suits to be prosecuted or defended by them, the Court would not allow a judgment as in case of a nonsuit to be entered up against them, they undertaking to go to trial forthwith (Hughes v. Glenny, 4 Ir. L. R. 5). The mere poverty of the plaintiff, if of a permanent nature, is no excuse (Frodsham v. Rust, 4 Dowl. 90); but where it appeared that the poverty was only temporary, and that he expected to be in funds within a definite period, the excuse was held to be sufficient (Radford v. Smith, 4 M. & W. 100). As to the bankruptcy or insolvency of the defendant, see ante, note (z); and as to the other grounds of excuse which may be put forward by a plaintiff, and as to obtaining a second extension of the time for proceeding to trial, see Ch. Ar., Pr. 12th ed., pp. 1505, 1508.

In cases where the plaintiff does not apply after the entry of the first of the rules mentioned in the section for an extension of time for going to trial, and afterwards makes default, the Court will canvass much more strictly the excuse put forward by him, than if he had in the first instance made an application to extend the time (Colclough v. Colclough, 14 Ir. C. L. R. 523, 528), and an affidavit of merits may be required (Judkins v. Atherton, 23 L. J. Q. B. 335). The terms on which an extension of the time for going to trial will be granted are in the discretion of the Court or Judge. As a general rule, the plaintiff will be put under terms to proceed to trial within a definite period; and he may also, where the circumstances of the case render it fit-as, for instance, where he has got into insolvent circumstances, and the action is being carried on for the benefit of third parties-be ordered, as part of the terms of