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THE NEW ZEALAND GAZETTE.
[No. 28

127. The Judge may direct payment of a lump sum in lieu of taxed costs.

128. If any plaintiff (other than a seaman suing for his wages, or for the loss of his clothes and effects in a collision) or any defendant making a counter-claim is not resident in the possession, the Judge may, on the application of the adverse party, order him to give bail for costs.

129. A party claiming an excessive amount, either by way of claim or of set-off or counter-claim, may be condemned in all costs and damages thereby occasioned.

130. If a tender is rejected, but is afterwards accepted, or is held by the Judge to be sufficient, the party rejecting the tender shall, unless the Judge shall otherwise order, be condemned in the costs incurred after tender made.

131. A party who has not admitted any fact which in the opinion of the Judge he ought to have admitted may be condemned in all costs occasioned by the non-admission.

132. Any party pleading at unnecessary length or taking any unnecessary proceeding in an action may be condemned in all costs thereby occasioned.

TAXATION OF COSTS.

133. A party desiring to have a bill of costs taxed shall file the bill, and, as soon as conveniently may be, the Registrar shall send to the parties notice of the time at which the taxation will take place.

134. At the time appointed, if either party is present, the taxation shall be proceeded with.

135. Within one week from the completion of the taxation application may be made to the Judge to review the taxation.

136. Costs may be taxed either by the Judge or by the Registrar, and as well between solicitor and client as between party and party.

137. If in a taxation between solicitor and client more than [one-sixth] of the bill is struck off, the solicitor shall pay all the costs attending the taxation.

APPRAISEMENT AND SALE, ETC.

138. The Judge may, either before or after final judgment, order any property under the arrest of the Court to be appraised, or to be sold with or without appraisement, and either by public auction or by private contract.

139. If the property is deteriorating in value the Judge may order it to be sold forthwith.

140. If the property to be sold is of small value the Judge may, if he thinks fit, order it to be sold without a commission of sale being issued.

141. The Judge may, either before or after final judgment, order any property under arrest of the Court to be removed, or any cargo under arrest on board ship to be discharged.

142. The appraisement, sale, and removal of property, the discharge of cargo, and the demolition and sale of a vessel condemned under any Slave Trade Act shall be effected under the authority of a commission addressed to the Marshal. Forms of commissions of appraisement, sale, appraisement and sale, removal, discharge of cargo, and demolition and sale will be found in the Appendix hereto, Nos. 42 to 47.

143. The commission shall, as soon as possible after its execution, be filed by the Marshal, with a return setting forth the manner in which it has been executed.

144. As soon as possible after the execution of a commission of sale the Marshal shall pay into Court the gross proceeds of the sale, and shall, with the commission, file his accounts and vouchers in support thereof.

145. The Registrar shall tax the Marshal’s account and shall report the amount at which he considers it should be allowed; and any party who is interested in the proceeds may be heard before the Registrar on the taxation.

146. Application may be made to the Judge on motion to review the Registrar’s taxation.

147. The Judge may, if he thinks fit, order any property under the arrest of the Court to be inspected. A form of order for inspection will be found in the Appendix hereto, No. 48.

DISCONTINUANCE.

148. The plaintiff may, at any time, discontinue his action by filing a notice to that effect, and the defendant shall thereupon be entitled to have judgment entered for his costs of action on filing a notice to enter the same. The discontinuance of an action by the plaintiff shall not prejudice any action consolidated therewith, or any counter-claim previously set up by the defendant. Forms of notice of discontinuance and of notice to enter judgment for costs will be found in the Appendix hereto, Nos. 49 and 50.

CONSENTS.

149. Any consent in writing signed by the parties may, by permission of the Registrar, be filed, and shall thereupon become an order of Court.

APPEALS.*

150. A party desiring to appeal shall, within [one month] from the date of the decree or order appealed from, file a notice of appeal, and give bail, in such sum not exceeding £300 as the Judge may order, to answer the costs of the appeal. A form of notice of appeal will be found in the Appendix hereto, No. 51.

151. Notwithstanding the filing of the notice of appeal, the Judge may, at any time before service of the inhibition, proceed to carry the decree or order appealed from into effect, provided that the party in whose favour it has been made gives bail to abide the event of the appeal, and to answer the costs thereof, in such sum as the Judge may order.

152. An appellant desiring to prosecute his appeal is to cause the Registrar to be served with an inhibition and citation, and a monition for process, or is to take such other steps as may be required by the practice of the Appellate Court.

153. On service of the inhibition and citation all proceedings in the action will be stayed.

154. On service of the monition for process the Registrar shall forthwith prepare the process at the expense of the party ordering the same.

155. The process, which shall consist of a copy of all the proceedings in the action, shall be signed by the Registrar and sealed with the seal of the Court, and shall be transmitted by the Registrar to the Registrar of the Appellate Court.

PAYMENTS INTO COURT.

156. All moneys to be paid into Court shall be paid, upon receivable orders to be obtained in the registry, to the account of the Registrar at some bank in the possession to be approved by the Judge, or, with the sanction of the local Government, into the Treasury of the possession. A form of receivable order will be found in the Appendix hereto, No. 52.

157. A bank receipt for the amount shall be filed, and thereupon the payment into Court shall be deemed to be complete.

PAYMENTS OUT OF COURT.

158. No money shall be paid out of Court except upon an order signed by the Judge. On signing a receipt, to be prepared in the registry, the party to whom the money is payable under the order will receive a cheque for the amount, signed by the Registrar, upon the bank in which the money has been lodged, or an order upon the Treasury in such form as the local Government shall direct. A form of order for payment out of Court will be found in the Appendix hereto, No. 53.

CAVEATS.

159. Any person desiring to prevent the arrest of any property may file a notice undertaking, within [three days] after being required to do so, to give bail to any action or counter-claim that may have been or may be brought against the property, and thereupon the Registrar shall enter a caveat in the caveat warrant book hereinafter mentioned. Forms of notice and of caveat warrant will be found in the Appendix hereto, Nos. 54 and 55.

160. Any person desiring to prevent the release of any property under arrest shall file a notice, and thereupon the Registrar shall enter a caveat in the caveat release book hereinafter mentioned. Forms of notice and of caveat release will be found in the Appendix hereto, Nos. 56 and 57.

161. Any person desiring to prevent the payment of money out of Court shall file a notice, and thereupon the Registrar shall enter a caveat in the caveat payment book hereinafter mentioned. Forms of notice and of caveat payment will be found in the Appendix hereto, Nos. 58 and 59.

162. If the person entering a caveat is not a party to the action the notice shall state his name and address, and an address within three miles of the registry at which it shall be sufficient to leave all documents required to be served upon him.

• Under the Act 26 and 27 Vict., c. 24, by s. 22, “The appeal from a decree or order of a Vice-Admiralty Court lies to Her Majesty in Council; but no appeal shall be allowed, save by permission of the Judge, from any decree or order not having the force or effect of a definitive sentence or final order.”

By s. 23, “The time for appealing from any decree or order of a Vice-Admiralty Court shall, notwithstanding any existing enactment to the contrary, be limited to six months from the date of the decree or order appealed from; and no appeal shall be allowed where the petition of appeal to Her Majesty shall not have been lodged in the registry of the High Court of Admiralty and of Appeals within that time, unless Her Majesty in Council shall, on the report and recommendation of the Judicial Committee of the Privy Council, be pleased to allow the appeal to be prosecuted, notwithstanding that the petition of appeal has not been lodged within the time prescribed.”

Rules Nos. 148-153 relate only to the proceedings to be taken in the Vice-Admiralty Courts. The procedure in the Appellate Court is regulated by the rules for appeals in ecclesiastical and maritime causes established by Order in Council of the 11th December, 1865, See p. 435.