plying, of the opposite party's costs of the former trial. It is a general rule never to grant it on affidavits, without this condition. Sometimes, indeed, where the party has been evidently deceived by any dishonest conduct or unworthy trick of his opponent, the Court has remitted this condition, and even made the guilty party pay the costs, but never except on strong and clear grounds.

If the rule be for a new trial, and be granted on payment of costs, the agent of the party obtaining it must take steps to get the other party's costs taxed; and when taxed they must be paid, for this is usually a condition in the rule, and unless complied with the rule goes for nothing, and the other party may proceed to judgment as if no such rule had been obtained.

1

If the rule be granted without the costs being ordered to be paid, the plaintiff gives notice of trial, as in the first instance, and the trial proceeds in the usual manner.

If the rule be refused, or where a rule nisi has been granted, if that rule be discharged, the successful party proceeds to tax his costs and sign judgment în the usual way.

If it be a rule for a nonsuit, which is made absolute, the associate, on being served with a copy of the rule, indorses the postea in the proper form for a nonsuit, and the party proceeds to tax his costs and sign judgment in the usual way.

If a party gets a rule for a nonsuit, or having got a verdict sustains it on a motion, or where a party has succeeded at the trial, and the result which then took place is not attempted to be disturbed by his opponent, it then becomes necessary to take the proper steps to sign judgment and obtain execution.

The first step is to get the costs taxed; and in cases where the judge has given no certificate for speedy execution, this cannot be done till the fifth day of the term next following the trial; but if the judge have given a certificate for speedy execution,

the costs may be taxed immediately, or at any time after the trial; but though the costs be taxed, the execution cannot be issued till the time mentioned in the judge's certificate has arrived.

The first thing to be done is to prepare the affidavit of increase; and a form of this affidavit is given in the Appendix, sect. 24. As this form contains all that is usually required in this affidavit, little more need be said about it here.

It may be well to observe, however, that care should be taken to give the names of the witnesses, their profession, trade, &c., so that the Master may be able to judge of their station in life, the distance of their residences from that of the attorney, the distance of their residences from the assize town, and the number of days they were necessarily absent, and to show whether or not they attended as witnesses in any other cause; and it must be sworn that in the attorney's judgment they were material and necessary witnesses. The affidavit should also show the distance of the attorney's residence from the assize town; and if he had no other cause at the assizes, that fact should be stated; if he had any other causes, it should be stated how many, and when each was tried, that the Master may see whether he might have left the assize town earlier than he did but for the cause in which he is taxing the costs, as that would make a difference in the allowance for the attorney.

This affidavit should, together with the briefs and other papers in the cause, be sent to the agent, who will then get the costs taxed, and issue any execution which may be required.

CHAPTER XV.

OF EXECUTION.

Interest on Judgments-Costs of Execution-Fi. Fa.—What to levy on-How to indorse-New Enactment as to Fi. Fa. -Sequestration against Clergymen-Ca. Sa.-When Plaintiff entitled to take Expenses of-How to indorse it-Duty of Sheriff on-Ca. Sa. to fix Bail-Elegit-Considerations before issuing it-Proceedings after, by Ejectment-What extendible on Elegit-Of Fi. Fa., Ca. Sa., and Elegit, when issued by Defendant-Sheriff's Poundage-Remedy against Sheriff for the Levy, &c.-Of ruling the Sheriff to return the Writ-New Enactments as to Judgment Debts.

By the statute 1 & 2 Victoria, c. 110, sect. 17, it is enacted that every judgment debt shall carry interest at the rate of 41. per centum per annum from the time of entering up the judgment, or from the time of the commencement of the act, (1st October, 1838,) in cases of judgments then entered up and not carrying interest, until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment.

In

The costs allowed on taxation are the costs up to the time of signing judgment, including the costs of the judgment; the execution, however, is subsequent to the judgment, and therefore the costs of the execution are never included in the costs as taxed. some cases, where the plaintiff sues out the writ of execution, he is entitled to levy those costs (including sheriff's poundage); but in other cases he, and in all cases the defendant, is not so entitled, and must pay the poundage and costs of execution out of his own pocket. In the following observations on the different writs of execution, it will be pointed out where the plaintiff is entitled to levy those costs, and where he is not.

Fieri facias.-Where this writ is directed to the

sheriff of the county in which the venue in the action was laid, it is called simply a fieri facias, or shortly a fi. fa. Where the writ is issued into a different county from that in which the venue in the action was laid, it contains a testatum clause, and is called a testatum fi. fa.; this is mentioned because the charges are different in one case from those in the other.

A plaintiff is always entitled, on a fi. fa. or testatum fi. fa., to levy on the defendant the costs of execution and poundage.

If in actions brought for the recovery of a debt, the debt recovered be above 201., and in all actions not brought for the recovery of a debt, such as trespass, trover, &c., whatever may be recovered, the plaintiff is entitled to levy

For writ of fi. fa., warrant and messenger, and instructing officer

For writ of fi. fa. and returning testatum fi. fa. warrant and messenger, and instructing officer

£ s. d.

0 19 8

1 14 10 If the action were for the recovery of a debt, and the debt recovered do not exceed 201., (unless it has been tried at the assizes, and the judge has certified that it was a proper case to be tried before him, in which case the above charges are proper,) the plaintiff is entitled to levy

£ s. d.

0 15 6

1 10 10

For fi. fa., warrant, &c. (as above) For fi. fa. testatum fi. fa., warrant, &c. (as above) From what follows the plaintiff's attorney will know how to indorse the writ; and

1st. If the whole sum mentioned in the body of the writ be to be levied, as will generally be the case where a writ of inquiry has been executed, and (except where the action is on a bond) where the judgment is on a verdict, the writ should be indorsed as follows: "Levy the whole and

for [interest

"

and] costs of execution, besides, &c." This blank will be filled up with 198. 8d., 1. 148. 10d., 158. 6d., or 11. 10s. 10d., according to the fact, as has just been shown; if any interest is to be levied, the amount must be added to this sum. The words "besides, &c." always mean that the sheriff is to levy what he is legally entitled to for making the levy, and of course where the writ is thus indorsed, it is at the sheriff's own peril if he levy too much.) 128 4067 jad

2ndly. If the sum mentioned in the body of the writ be more than the amount of f the real debt and costs, as will generally be the case where the action is on a bond with a penalty, or where the judgment is on a warrant of attorney, or on a cognovit where the damages laid in the declaration have been confessed to secure a less sum, or in cases where, since judgment was signed, something has been paid on account; in these cases the costs of execution may be included with the other part of the levy in one „sum, and then the indorsement will be thus: "Levy £ , besides, &c." For instance, if the judg ment be on a warrant of attorney to confess a judgment for 100l. to secure 501. In this case the writ will in the body command the sheriff to levy a debt of 1007., and also 658., the costs; but as the real debt is only 501., the sum to be indorsed, on the writ, supposing it to be a fi. fa., will be made up thus: Date du sond.

Real debt (add interest if any) 50,00
Costs

Fi. fa., warrant, &c....

T

3,15 0
0 19 8

544 8

And the writ will be thus indorsed: "Levy 541. 4s. 8d., besides, &c.",

Formerly the sheriff, under a writ of fieri facias, could only levy on the goods and chattels of the party against whom it issued, and therefore he could not touch any money or securities for money which he might find, but the stat. 1 & 2 Vict. c. 110,