Regulæ Generales

Regulæ Generales. Notice of want or failure of consideration. be on the 0r judgment of non-suit, 1845. [MAJORITY] When the defendant in an action brought upon a promissory note or bill of exchange, shall claim, that the plaintiff is not entitled to recover his demand, upon the ground of a want or failure of consideration, he shall not be permitted, on the trial, to give evidence in support of such claim, under the plea of the general issue, unless he shall have given the plaintiff notice in writing, at the time of pleading, that such defence would be made. July 1846. 1. The calling of the parties in the causes upon the docket of the superior court, at the commencement of a term, shall hereafter be dispensed with; and in lieu thereof, it shall be the duty of the attorney of the plaintiff, or if there be no such attorney, of the plaintiff himself, to enter his appearance, by causing his name to be entered upon the docket, on or before the second opening of the court, on the second day of the term to which the cause is brought. And if no such appearance shall be entered, it shall be lawful for the clerk, upon the appear- . anee of the defendant as hereinafter specified, to enter up judgment of non-suit against the plaintiff. 2. And it shall be the duty of the attorney of the defendant, or if there be no such attorney, of the defendant himself, in like manner, to enter his appearance, on or before the opening of on the third day of said term; and on failure, it, shall be lawful for the clerk, if the plaintiff shall have appeared as above specified, to enter up judgment against the defendant for default of appearance. deílndamlo entered. S"¿u1fment f°r Proviso. Costs, where more counte°for distinct causes of action. Set-ofl oí costs. Costs on continuance of action. Provided, that nothing herein contained shall be construed ⅛ prevent the court, in the exercise of its discretion, from directing the parties in any cause to be called at an earlier period in the term, or from allowing an appearance, for a reasonable cause, at any subsequent period. 3. Whenever in any action there shall be two or more counts in the declaration, for distinct causes of action, and a part of the issues joined thereon shall be found in favour of tj,e defendant, and the remainder in favour of the plaintiff, the 1 defendant shall recover such costs as are applicable to his de-fence upon those issues found in his favour, including the fees of witnesses and the expense of summoning them ; but no costs shall be taxed for his travel, attendance, and attorney’s fees. And the court, upon the application of either party, may direct a set-off to be made of such costs against the costs recovered by the plaintiff, and execution to issue only for the balance of such costs. 4. No action pendingin the superior court, after the term to which it was originally brought, shall be further continued, on motion, on the ground that the party making such motion cannot be prepared for trial during the term, unless said party shall pavto the adverse party his taxable costs of the term ; and in such case, no costs for that term shall afterwards be taxed in favour of the party thus paying costs. But this rule shall not be enforced, if the cause of continuance be occasioned by the fault of the adverse party ; nor if such party cannot be prepared, and is not ready to try said cause, at said term.