The Common Law Procedure Acts, 1853, 1856, 1870

effected, an application may be made to the Court to substitute service, or have any service already made deemed good.

to be served.

189. The writ of summons and plaint in ejectment may be Writ when served at any time while the writ shall be in force, as in the case of any other writ of summons and plaint.

to Counsel

190. The Taxing Officer shall be at liberty to allow a fee to Case and fee counsel upon a case to advise as to parties or otherwise, pre- to advise viously to the institution of any action of ejectment, wherever may be he may consider such case to have been necessary.

allowed.

General

rules

191. All General Rules herein contained shall extend to ejectment (unless where the same shall not be applicable), mutatis to extend to mutandis.

ejectment.

REPLEVIN.

replevin

192. When any action of Replevin shall have been commenced Removal of in any inferior Court, the mode of removing the same into any of from inferior the superior Courts shall be by the writ of recordari facias loque- courts. lam, according to the form in the 3rd schedule to these Orders, and the mode of proceeding under the said writ shall be the same as prescribed by the 150th and following order, in the case of the writ of certiorari.

General rules

to extend to

193. All General Rules herein contained shall extend to replevin (unless where the same shall not be applicable), mutatis replevin. mutandis.

ERROR

194. No practising attorney, or clerk, or apprentice to a prac- No attorney tisng attorney, shall be bail in error without the leave of the to be bail in Court.

error.

195. Two days' notice of bail in error shall be given before the Notice of time for putting in such bail.

bail.

ment of error.

196. In case of assignment of error, notice of filing thereof and Notice of other pleadings in error shall be served by the party filing the filing assignsame, and with such notice a true copy of such assignment or other pleading shall be delivered; and every such assignment or other pleading shall be considered as filed only on the day on which such notice shall be served, and copy delivered; and every such assignment and other pleading in error shall be signed by counsel and attorney.

197. The proceedings as to making up the paper books, and Books for setting down the case for argument, shall be the same as in cases of demurrer, as directed by the 50th rule.

When the plaintiff in error after having lodged the paper books neglects to set the cause down for argument, the defendant may do so, and an application on behalf of the defendant for leave to mark final judg

argument, see R. G. H. T. 1853, r. 68.

Contents of books for Judges.

Issues in fact in error, how to be pro

ment on the grounds of the cause not having been set down, will therefore be refused (Scott v. The Midland Great Western Railway Co., 6 Ir. Jur., O. S. 1). When the plaintiff in error neglects to make up the paper books, the defendant should not apply to the Court below to set aside the proceedings (Doolin v. Doolin, 7 Ir. Jur. N. S., 34). In such a case the application should be made to the Court of error.

Upon the argument of a case in the Court of error the senior counsel for the plaintiff begins, and is followed by the junior on the same side. The senior counsel on the other side is then heard, and is followed by his junior, and the counsel opening has the general reply (Roddy v. Fitzge rald, 7 Ir. C. L. R., 142 n; Holmes v. Smith, 8 Ir. C. L. R., 425 n.).

198. All paper books for the Judges on proceedings in error shall contain a copy of the record and suggestion or assignment of errors, and the pleadings, if any, thereon, with the names of the counsel and attorney, and a statement signed by counsel for each party of the points intended to be argued, and shall have endorsed thereon an index denoting the page at which each document commences, and shall be fully noted in the margin.

199. In cases of error in fact, when issue in fact shall be joined, the proceedings with respect to the trial of said issue shall be the ceeded with. same, mutatis mutandis, as in case of any other issue in fact; and on producing the posted to the proper officer, he shall mark judgment for the party who has obtained the verdict, and when issue in law shall be joined in such proceeding in error the proceedings shall be the same as on the argument of demurrer in ordinary

Error not to

be brought

cases.

200. In no case shall error be brought for any error in a judgfor costs only ment with respect to costs only, until after application to the Court in which such judgment may have been given, to amend the judgment in that respect.

Costs of

201. The costs of proceedings in error shall be taxed and costs in the allowed as costs in the cause.

error to be

cause, R. G.

H. T. 1853, r. 69.

This order only provides for the mode of taxation of costs, and does not entitle a party to costs where formerly they would not have been awarded to him (Fisher v. Bridges, 4 El. & Bl. 666). Neither will he be entitled to them under sect. 169 of the C. L. P. Act, 1853, which provides that proceedings in error shall be a step in the cause. Before this order the costs should have been taxed in the Court of error and an application to review the taxation should likewise have been there made; and the object of the present order is to provide that the costs shall be taxed in the same way that ordinary costs are taxed.

The right of the parties to costs in error is founded upon 9 Wm. III. ch. 25, sect. 10; 9 Wm. III. ch. 10, sect. 2; and 6 Anne, c. 10, sect. 22. When the judgment of the Court below is reversed, there is no statutory provision, and each party consequently bears his own costs of the proceedings in error, but the party succeeding is entitled to have the judg ment entered up awarding him the costs of the proceedings below.

Where, however, a judgment had for the plaintiff is reversed by the defendant for error in fact, the defendant is not entitled to include in the judgment of reversal the cost of defending the action (Ievers v. Bainbridge, 8 Ir. C. L. R. 150).

When the judgment of the Court below is affirmed, it may be laid down generally that the defendant in error is entitled to costs by virtue of the several statutes referred to above. Where after the death of a plaintiff in error the proceedings were continued by the devisee, it was held that the judgment of the Court below having been affirmed, he was only liable for the costs incurred after he was made a party (Parker v. Tootal, L. R. 1 Ex. 41).

NOTE-Beside the foregoing rules of practice, there are others in the body of the Common Law Procedure Amendment Act (Ireland), 1853, which are not repeated here, but which of course must be observed.

SCHEDULES TO WHICH THESE ORDERS REFER.

SCHEDULE I.

Fees to be allowed to Attorneys on Taxation of Costs.

Instructions.

1 Instructions to proceed or defend in ordinary cases 2 Instructions to sue or defend, where a question of title to real property or an office, arises, (to be determined by the Taxing Master)

Letters.