admit docu

65. In all writs of inquiry or references before the Master of Notice to the Court, either party may call on the other party, by notice, to ments before admit documents, in the manner provided by, and subject to, the Master. provisions of the Common Law Procedure Amendment Act (Ireland), 1853, and the 58th rule; and in case of the refusal or neglect to admit after such notice given, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the inquisition, or on the reference, the presiding officer or Master shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is, in the opinion of the Taxing Officer, a saving of expense.

DISCONTINUANCE.

66. At any time before verdict found, or demurrer argued, or Rule to diswrit of inquiry executed, the plaintiff may obtain a side-bar continue. rule as of course, for liberty to discontinue, on paying the defendant his costs in the cause when taxed.

As ance.

The plaintiff may discontinue the action as of course upon the payment Discontinuof costs at any time before the several times specified in the order. to discontinuing without payment of costs see Irwin v. Thompson, Cr. & Dix. Ab. Not. Cas. 422; Gray v. Cox, 2 Dowl. 220; Ford v. Stock, I Dowl. N. S. 763. When the plaintiff discontinues, the defendant is entitled to costs although the plaint was never filed (Moylan v. Healy, 8 Ir. C. L. R. Ap. 52); and until the costs are paid the action still remains pending so that the plaintiff cannot commence a new action (Clifton v. Boulger, 6 Ir. Jur. N. S. 102; Pearn v. The Commissioners of Drainage, 5 Ir. Jur. O. S. 250). So also until the costs are paid the plaintiff may be compelled to proceed as usual (Beeton v. Japp, 15 M. & W. 149) ; and where the plaintiff instead of paying costs went on and obtained a verdict, the verdict was upheld (Edgington v. Proudman, 1 Dowl. 152); and c. f. (Stokes v. Woodeson, 7 T. R. 6).

Where after a rule to discontinue had been entered the defendant's costs were furnished but not taxed, the Court gave liberty to the plaintiff to proceed in another action for the same cause on lodging in Court the amount of costs claimed by the defendant (Bredin v. Corcoran, 12 Ir. C. L. R. Ap. 9); and if the defendant makes default in furnishing his costs the plaintiff may apply to the Court for the purpose of compelling him to furnish them.

The defendant may register a rule to discontinue without specifying the amount of costs which may be added to the rule when taxed and ascertained (Tilly v. Fletcher, 7 Ir. C. L. R. 3).

Points in

NUL TIEL RECORD.

67. With every pleading of Nul Tiel Record, the party filing support of, such pleading shall furnish a statement signed by counsel of the

be

furnished.

Rule to inspect Record.

Proper officer to attend with record.

points on which he intends to rely in support of such pleading, and shall furnish a copy of the same, together with copies of the pleadings, to the Clerk of the Rules on the day before the day fixed by the rule for inspecting the record.

Nul Tiel Record cannot be pleaded to an action upon a colonial judg ment (Chapman v. Sherrie, Ir. R. 5 C. L. 36).

As to what will amount to a variance upon a plea of Nul Tiel Record see Gordon v. Hassard, 9 Ir. C. L. R. 195.

68. Where Nul Tiel Record shall have been pleaded, either party may, as of course, enter a rule that a certain day, to be therein named, be appointed for inspecting the record stated in the pleadings.

69. On production of the rule for inspecting the record to the officer of any of the said courts in whose custody the record may be, such officer shall attend with the original record at the sitting of the Court on the day fixed for the inspection of the

same.

EVIDENCE.

Interrogato

ries, &c., to

70. All interrogatories and cross-interrogatories for the exbe signed by amination of witnesses shall be prepared and signed by Counsel, and the Taxing Officer shall be at liberty to allow a fee to him for preparing the same.

counsel.

Number of witnesses'

names in subpœna.

Officer's signature to

rule, &c.,

71. Any number of names of witnesses may be inserted in any writ of Subpæna.

72. Every rule or order, and every attested copy issued from any of the said Courts, and purporting to be signed by the proper need not be officer, shall be received in evidence upon the trial of any issue, without proof of such signature, or of the attestation or comparison thereof.

proved.

Public re

cords not to be produced

without special order.

73. No writ of Subpana shall issue for the production of any record in the custody of the Paymaster of Civil Services or other officer of her Majesty without an order of the Court on motion, of which notice shall be given to the Crown Solicitor of the district wherein such record is deposited; and such officer having the custody of any such record shall not be obliged to remove the same under such writ from the depository where same is

placed, without such order, to be served upon him with the writ of Subpana Duces Tecum.

ABSTRACT, FOR NISI PRIUS.

of issues

74. In case it shall become necessary to settle the issues and Settlement abstract for Nisi Prius before a Judge, the attorney for the party before a requiring a summons shall lodge with the Clerk of the Rules of judge. the Court a correct copy of the draft abstract of the pleadings, and of the issues proposed, as theretofore furnished; and the Clerk of the Rules shall thereupon issue a summons for such time and place as the Judge shall approve.

See ante, p. 109.

for Nisi

75. No case, whether an action be now pending, or otherwise, Abstracts shall be entered in the list of abstracts for trial at Nisi Prius Prius, when in Dublin, unless a docket shall be lodged with the Registrar to be lodged. four clear days before the day for which notice of trial shall have been served, stating the names of the parties in full; in what capacity they sue and are sued; the general nature of the cause or causes of action and of the defence and other pleadings, and the names of the attorneys of the respective parties; and all abstracts for trial shall be sealed and lodged with the Registrar the day before the same shall be called on; and in all cases where such abstract shall have been lodged with the Registrar, and a confession of action or consent for judgment shall subsequently be given, the plaintiff's attorney shall immediately give notice to the Registrar that such cause will not proceed to trial.

lodged.

76. No Civil Bill Appeal, Registry Appeal, or other Appeal, Appeals, shall be entered in the list, unless an abstract shall have been when to be lodged with the Registrar two clear days before the day for which notice of hearing shall have been given, stating the names of the parties in full, their respective attorneys, the nature and particulars of the decree or dismiss or order appealed from, and the Court from which the appeal is brought.

TRIAL AT BAR.

77. In order to obtain a trial at bar, an application shall be Trial at bar, made to the Court by motion or notice, grounded on affidavit; how oband the order for a trial at bar shall state the day on which the trial shall commence.

tained.

Application

78. The application for a trial at bar may be made at any when to be time in term, and in any term; and it shall not be necessary made. to lodge any sum of money with the officer to defray the expenses of the jury, or for any

other purpose.

Proceedings

on excep tions.

Books for

79. When a party shall have taken exceptions upon any trial at bar, he shall, at the expiration of two days from the furnishing of the draft, whether the same shall have been returned or not, serve notice of motion to settle and sign the same before the Court, whereupon same shall be settled and signed by the Judges; and within two days after the settling and signing of the bill of exceptions, the party taking the same shall proceed to allege error, pursuant to the 170th section of the Common Law Procedure Amendment Act (Ireland) 1853.

80. In the Court of Exchequer Chamber, the mode of proargument. ceeding as to preparing the books and setting down the case for argument, shall be the same as directed by the 50th Rule with reference to demurrers.

Motion for new trial, &c., to be on notice.

81. Every motion for a new trial, or to set aside a verdict or non-suit on a point saved, or on any other ground, after a trial at bar, shall be by motion on notice, which notice shall be served within the first four days of the term next after such trial.

Sheriffs to keep panel of special

inrors for

TRIAL AT NISI PRIUS.

82. Sheriffs shall, seven days before the commission day, or first day of the Nisi Prius sitting after term, make and keep at their offices, for inspection, a printed copy of the panel of the inspection. special jurymen to try special jury causes at the assizes or aftersittings, as directed by the Common Law Procedure Amendment Act (Ireland) 1853; but such special jury need not be summoned, except notice be given, as provided for by the 115th section of the said Act.

Notice of trial when demurrer filed.

Bill of exceptions, when to be furnished.

83. Where a demurrer shall have been filed after notice of trial served, such notice shall be deemed to be a notice as well to try the issue in fact, as to inquire of the damages to be assessed on the demurrer.

84. When any party shall have taken exceptions at a trial, he shall, ten days before the next succeeding term, if the trial shall have been had at the assizes, or in the sittings after term, or two days after the trial, if in term, or in the sittings after Easter Term, furnish a draft of the bill of exceptions to the opposite party, with a notice calling on him to return the same in four days, settled on his behalf."

In computing the period of ten days prescribed by the above order the holidays mentioned in the 232nd.sect. of the C. L. P. Act 1852, must be excluded (White v. Tyrrell, 5 Ir. C. L. R. 278; Hassard v. Caulfield, 7 Ir. Jur. O. S. 141). The provisions of the present order as to the time within which a bill of exceptions is to be furnished must be strictly complied with (White v. Tyrrell, ali supra). Where however in consequence of special circumstances, as for instance the engagement of Counsel, in

the ordinary business of assizes it has not been possible to comply with the requirements of the order, the time may be extended (Butler v. Mountgarret, 4 Ir. C. L. R. 256; King v. Poe, 1 Ir. L. T. 192).

of excep

85. On the expiration of four days from the furnishing of such Settling bill draft, whether the same shall be returned or not, the party ex- tions. cepting shall issue a summons to settle the same before the Judge who tried the cause, whereupon the same shall be settled and signed by such Judge, at such time as he shall think proper: and within two days thereafter the party excepting shall file the same, and proceed to make up the paper books for the Judges, and set down the case for argument in the same manner as directed by the 50th rule with reference to demurrer books.

The requirements of this order must also be complied with and the parties cannot by their agreement waive the effect of laches (Lynar v. Foster, 6 Ir. Jur. O. S. 241).

When the party excepting is guilty of delay in settling the bill of exceptions, the opposite party should not issue a summons to settle, but should apply for leave to serve a notice on the exceptant to settle or otherwise that judgment will be marked (Kilroy v. Midland G. W. Ry. Co. 4 Ir. C. L. R. 252).

what to

86. All paper books of bills of exceptions shall contain the Books for abstract for Nisi Prius and bill of exceptions, with the names argument, of the counsel and attorneys on both sides, and shall be made contain. out in the same form and manner as directed by the 50th rule with reference to demurrer books.

87. The proceedings on special verdicts and special cases shall Like probe the same, mutatis mutandis, as on bills of exceptions.

ceedings on special verdicts and cases.

Motion to

set aside verdict,

88. Every application to set aside a verdict or non-suit, or in arrest of judgment, shall be made within the first four days of the term next after the trial, if had either in the sittings after when to be term or at the Assizes, or within the first four sitting days after the trial, if had in term.

made,

see R. G., H. T.. 1853,

r. 50.

without

89. Where any party shall seek to set aside a verdict or non- Motion to be suit, or move in arrest of judgment, he shall, in the first instance, witho apply to the Court by motion, without notice.

when to be

90. No application to set aside a verdict or non-suit shall be Motion. grounded upon affidavit, except in cases where the party seeking grounded on to set the same aside shall rely upon surprise or fatality, or upon affidavit, the discovery of new evidence; or upon the verdict or non-suit see R. G., H. having been obtained by fraudulent or improper practice, or 52. misconduct; and in all such cases, the affidavit to be made shall

T., 1853, r.